Free v. Bonner

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

JEFFREY FREE )

)

Plaintiff, )

v. )

) No. 2:20-cv-2638-JTF-atc

FLOYD BONNER, )

)

Defendant. )

ORDER MODIFYNG THE DOCKET,

DISMISSING THE COMPLAINT WITHOUT PREJUDICE (ECF NO. 1),

AND GRANTING LEAVE TO AMEND

Before the Court is the pro se complaint filed under 42 U.S.C. § 1983 on August 20, 2020

by Plaintiff Jeffrey Free, who is incarcerated at Shelby County Criminal Justice Center (SCCJC)

in Memphis, Tennessee. (ECF No. 1.) After the Court dismissed the case on December 2, 2020

for Plaintiff’s failure to file a signed in forma pauperis affidavit or submit the filing fee (see ECF

Nos. 5 & 6), Plaintiff moved on January 6, 2021 to re-open the case. (ECF No. 7.) At that time,

he provided his prison trust account information. (ECF No. 7-1.) On March 26, 2021, the Court

re-opened the case. (ECF No. 8.) On April 6, 2021, the Court granted Free leave to proceed in

forma pauperis. (ECF No. 9.)

Free’s § 1983 complaint arises from his confinement at SCCJC during the ongoing

COVID-19 pandemic. (ECF No. 1.) He sues as Defendants: (1) Shelby County Sheriff Floyd

Bonner; and (2) “ect al. [sic].” (Id. at PageID 1 & 2.) The Clerk shall modify the docket to add

(1) Shelby County and (2) Jail Administration as Defendants.

Free seeks: $500 in compensatory damages for filing fees and over-the-counter medicine;

(2) $495,500 in punitive damages; and (3) appointment of counsel. (Id. at PageID 3.)

I. FACTUAL BACKGROUND

According to the July 13, 2020 SCCJC grievance form appended to Free’s § 1983

complaint, Plaintiff contracted COVID-19 while confined in SCCJC at some point in July 2020.

(ECF No. 1-1 at PageID 5.) That same month, Free grieved his coronavirus contraction, his

inability to socially distance at SCCJC, and his lack of access to face masks, hand sanitizer, and

“antibiotic soap.” (Id.) Free contends that COVID-19 risks were so “obvious” that “we might

well infer” that “Sheriff Bonner and Jail administration” had “actual knowledge” of coronavirus

risks. (Id. at PageID 4.) Since Defendants “failed to act” to remedy “unsafe conditions,” Free

contracted COVID-19. (Id.; ECF No. 1 at PageID 2.)1 Plaintiff alleges violation of the Eighth

Amendment’s proscription against cruel and unusual punishment. (ECF No. 1 at PageID 2; see

also ECF No. 1-1 at PageID 5.)

II. LEGAL STANDARD

The Court must screen prisoner complaints and dismiss any complaint, or any portion of

it, if the complaint —

(1) is frivolous, malicious, or fails to state a claim upon which relief

may be granted; or

(2) seeks monetary relief from a defendant who is immune from

such relief.

1 Plaintiff appends to his § 1983 complaint the “Declaration of Dr. Jamie Meyer.” (ECF

No. 1-2 at PageID 6-23.) The document purports to be an expert witness report by Dr. Meyer in

another lawsuit. (ECF No. 1 at PageID 8–10.) Several plaintiffs in other cases in this District

have also appended Dr. Meyer’s Declaration to § 1983 complaints about SCCJC’s COVID-19

measures. See Thompson v. Bonner, No. 20-2658-JTF-atc, 2021 WL 1865265, at *1 n.1 (W.D.

Tenn. May 10, 2021); Wylie v. Bonner, No. 20-2593-TLP-tmp, 2021 WL 261280, at *1 n. 3 (W.D.

Tenn. Jan. 26, 2021).

Given that Free has neither (1) proffered Dr. Meyer as a witness in this case nor (2)

submitted Dr. Meyer’s Declaration under the Federal Rules of Civil Procedure or the Federal Rules

of Evidence, the Court does not make any determinations herein based upon the Meyer

Declaration. See also id. (accord).

28 U.S.C. § 1915A(b); see also 28 U.S.C. § 1915(e)(2)(B).

As to step one, in assessing whether the complaint states a claim on which relief may be

granted, the Court applies the standards under Federal Rule of Civil Procedure 12(b)(6), as stated

in Ashcroft v. Iqbal, 556 U.S. 662, 677–79 (2009), and in Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 555–57 (2007). Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010). Under those

standards, the Court accepts the complaint’s “well-pleaded” factual allegations as true and then

determines whether the allegations “plausibly suggest an entitlement to relief.” Williams v.

Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (quoting Iqbal, 556 U.S. at 681). The Court does not

assume that conclusory allegations are true, because they are not “factual,” and all legal

conclusions in a complaint “must be supported by factual allegations.” Iqbal, 556 U.S. at 679.

In addition, Federal Rule of Civil Procedure 8 provides guidance on this issue. Even though Rule

8 only requires a complaint to contain “a short and plain statement of the claim showing that the

pleader is entitled to relief,” it also requires factual allegations to make a “‘showing,’ rather than

a blanket assertion, of entitlement to relief.” Twombly, 550 U.S. at 555 n.3.

Courts screening cases will accord slightly more deference to pro se complaints than to

those drafted by lawyers. “Pro se complaints are to be held ‘to less stringent standards than

formal pleadings drafted by lawyers,’ and should therefore be liberally construed.” Williams, 631

F.3d at 383 (quoting Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004)). That said, pro se

litigants are not exempt from the requirements of the Federal Rules of Civil Procedure. Wells v.

Brown, 891 F.2d 591, 594 (6th Cir. 1989); see also Brown v. Matauszak, 415 F. App’x 608, 612,

613 (6th Cir. Jan. 31, 2011) (affirming dismissal of pro se complaint for failure to comply with

“unique pleading requirements” and stating “a court cannot ‘create a claim which [a plaintiff] has

not spelled out in his pleading’” (quoting Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167,

1169 (6th Cir. 1975))).

III. REQUIREMENTS TO STATE A CLAIM UNDER 42 U.S.C. § 1983

Plaintiff sues under 42 U.S.C. § 1983. To state a claim under that statute, a plaintiff must

allege two elements: (1) a deprivation of rights secured by the “Constitution and laws” of the

United States, and (2) that a defendant caused harm while acting under color of state law. Adickes

v. S.H. Kress & Co., 398 U.S. 144, 150 (1970). For his claims to succeed, Plaintiff must satisfy

these requirements.

IV. ANALYSIS

A. Official Capacity Claims / Claims Against Shelby County

Free does not specify whether he sues Bonner in this Defendant’s official or individual

capacity. The Sixth Circuit requires plaintiffs to “set forth clearly in their pleading that they are

suing the state defendants in their individual capacity for damages, not simply in their capacity as

state officials.” Wells, 891 F.2d at 592. “Absent a specification of capacity, it is presumed that a

state official is sued in his official capacity.” Northcott v. Plunkett, 42 F. App’x 795, 796 (6th

Cir. 2002) (citing Wells, 891 F.2d at 593).

The official capacity claims in Free’s complaint are treated as claims against Bonner’s

employer, Shelby County. See Jones v. Union Cnty., Tennessee, 296 F.3d 417, 421 (6th Cir.

2002) (citing Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994)). Shelby County may be

held liable only if Plaintiff’s injuries were sustained pursuant to an unconstitutional custom or

policy. See Monell v. Dep’t. of Soc. Serv., 436 U.S. 658, 691-92 (1978). To demonstrate

municipal liability, a plaintiff “must (1) identify the municipal policy or custom, (2) connect the

policy to the municipality, and (3) show that his particular injury was incurred due to execution

of that policy.” Alkire v. Irving, 330 F.3d 802, 815 (6th Cir. 2003) (citing Garner v. Memphis

Police Dep't, 8 F.3d 358, 364 (6th Cir. 1993)). “[T]he touchstone of ‘official policy’ is designed

‘to distinguish acts of the municipality from acts of employees of the municipality, and thereby

make clear that municipal liability is limited to action for which the municipality is actually

responsible.” City of St. Louis v. Praprotnik, 485 U.S. 112, 138 (1988) (quoting Pembaur v.

Cincinnati, 475 U.S. 469, 479-80 (1986)). Free does not allege that he has been deprived of a

right because of a Shelby County policy or custom. That is, he does not attribute to any County

policy or custom his “contraction of COVID-19.” (ECF No. 1-1 at PageID 4.) Therefore, Free

does not state a claim against Shelby County or against Bonner in his official capacity.

B. Eighth Amendment Claim For Compensatory Damages As To COVID-19

Conditions Of Confinement

Free’s allegation of “deliberate indifference” (ECF No. 1 at PageID 2) to “substantial risk

of serious harm to my health and safety” (ECF No. 1-1 at PageID 4) is construed under the Eighth

Amendment. See generally Wilson v. Seiter, 501 U.S. 294 (1991). Under that constitutional

provision, prison officials must provide humane conditions of confinement by ensuring that

inmates receive adequate food, clothing, shelter and medical care. See Rhodes v. Chapman, 452

U.S. 337, 347 (1981). “Extreme deprivations are required to make out a conditions of confinement

claim. Because routine discomfort is part of the penalty that criminal offenders pay for their

offenses against society, ... only those deprivations denying the minimal civilized measure of life’s

necessities are sufficiently grave to form the basis of an Eighth Amendment violation.” Hudson v.

McMillian, 503 U.S. 1, 9 (1992) (internal quotations and citations omitted). The Sixth Circuit has

explained the law in this jurisdiction as to confinement conditions claims:

In certain extreme circumstances, the totality itself may amount to

an [E]ighth [A]mendment violation, but there still must exist a

specific condition on which to base the [E]ighth [A]mendment

claim. We believe such conditions “considered alone or in

combination [with other conditions],” must amount to a deprivation

of “life’s necessities,” before a violation of the [E]ighth

[A]mendment can be found” … [A] specific deprivation of one or

more identifiable human needs must be established in order to prove

an Eighth Amendment violation, [and] the plaintiff must show “a

culpable state of mind on the part of [the defendant] prison officials.

Berryman v. Johnson, No. 88-1239 & 88-1280, 1991 WL 150808, at *9-10 (6th Cir. Aug. 6, 1991)

(internal citations omitted). “It is thus settled that Eighth Amendment claims based on prison

conditions have both an objective component (denial of … ‘the minimal civilized measure of life’s

necessities’), and a subjective component (‘deliberate indifference’).” Id. at *10 (internal citations

omitted.) See also Farmer v. Brennan, 511 U.S. 825, 834 (1994).

The objective component requires that the deprivation be “sufficiently serious.” Farmer,

511 U.S. at 834; Hudson, 503 U.S. at 8; Wilson, 501 U.S. at 928. A prisoner must show that he

“is incarcerated under conditions posing a substantial risk of serious harm,” id.; see also Miller v.

Calhoun Cnty., 408 F.3d 803, 812 (6th Cir. 2005), or that he has been deprived of the “minimal

civilized measure of life’s necessities,” Wilson, 501 U.S. at 298 (quoting Rhodes, 452 U.S. at 347);

see also Hadix v. Johnson, 367 F.3d 513, 525 (6th Cir. 2004). The subjective component requires

that jail officials acted with requisite intent -- i.e., had a “sufficiently culpable state of mind.”

Farmer, 511 U.S. at 834; see also Wilson, 501 U.S. at 302-03 (plaintiffs must show that prison

officials acted with “deliberate indifference” to a substantial risk that the prisoner would suffer

serious harm); Dominguez v. Corr. Med. Servs., 555 F.3d 543, 550 (6th Cir. 2009). A prison

official must subjectively know of an excessive risk of harm to an inmate’s health or safety and

disregard that risk. Farmer, 511 U.S. at 837.

According to Free, “Sheriff Bonner and the Jail administration … failed to act …

[regarding] COVID-19 … unsafe conditions.” (ECF No. 1-1 at PageID 4; ECF No. 1 at PageID

2.) The novel coronavirus and the risks attendant upon contracting it are sufficiently serious for

purposes of the Eighth Amendment’s objective prong. However, Free fails to adequately allege

the Eighth Amendment’s subjective component.

Free suggests that Bonner was deficient in mitigating COVID-19 risks at SCCJC. (See

ECF No. 1 at PageID 2; ECF No. 1-1 at PageID 4.) However, this allegation does not demonstrate

Bonner’s subjective knowledge of a risk in Plaintiff’s particular case that Bonner specifically

disregarded. For example, Free does not demonstrate that (1) any particular protocols would have

prevented him from contracting coronavirus or (2) such measures are/were available at SCCJC

during the relevant times. These points are significant, since the Eighth Amendment does not

require perfection on the part of prison officials. See United States v. Cato, No. 14-315-01, 2020

WL 4193055, at *1 n.1 (E.D. Pa. July 21, 2020) (internal citations omitted). Free contends that

“circumstances suggest” Bonner’s knowledge of coronavirus risks generally. (See ECF No. 1-1

at PageID 4.) Plaintiff’s speculation does not show Bonner’s “deliberate indifference” to a

substantial risk that Plaintiff particularly would suffer serious harm.

For all of these reasons, Free fails to state an Eighth Amendment conditions of confinement

claim for relief.

C. Claim Of Inadequate Grievance Procedure

Free states there was “no result” to his grievance about COVID-19 risk mitigation efforts.

(ECF No. 1 at PageID 2 (Plaintiff’s grievance was “unanswered”).) He does not allege arbitrary

denial of access to the grievance process.

Prisoners do not possess a constitutional right to a prison grievance procedure. See Young

v. Gundy, 30 F. App’x 568, 569-70 (6th Cir. 2002); LaFlame v. Montgomery Cnty. Sheriff’s Dep’t,

3 F. App’x 346, 348 (6th Cir. 2001) (holding that plaintiff’s allegation that jail staff ignored

the grievances he filed did not state a § 1983 claim “because there is no inherent constitutional

right to an effective prison grievance procedure.”).

Even if a grievance system was constitutionally guaranteed, Free has not shown how any

particular Defendant’s conduct with respect to the grievance process directly affected Plaintiff’s

“ability to bring his claim before any court.” See Coleman v. Governor of Michigan, No. 09-1139,

413 F. App’x 866, 874-875 (6th Cir. 2011) (citation omitted). Furthermore, a failure to take

corrective action in response to an inmate grievance does not supply the necessary personal

involvement for § 1983 liability. See Simpson v. Overton, 79 F. App’x 117, 120 (6th Cir. 2003).

Free’s grievance allegation fails to state a claim for relief under § 1983.

D. Claims Against Jail Administration

Free states that “Jail administration” knew of COVID-19 risks but did not take appropriate

measures to prevent Plaintiff from contracting it. (ECF No. 1-1 at PageID 4.)

Collective liability -- i.e., when claims are brought against persons such as a “staff” -- is

not permitted under § 1983. Individual, personal involvement is required. A damages suit under

§ 1983 requires that a defendant acting under color of state law be personally involved in the

alleged constitutional deprivation. A group of people is not a “person” subject to suit pursuant to

§ 1983. See Hix v. Tenn. Dep’t of Corr., 196 F. App’x 350, 355 (6th Cir. 2006); Arty v. Wilson

Cnty. Jail, No. 19-cv-0309, 2019 WL 4748321, at *2 (M.D. Tenn. Sept. 30, 2019).

Free uses “Jail administration” as a name for alleged defendants, without naming specific

administrators. This is inadequate to state a claim against a § 1983 “person,” as explained supra.

Free must identify the specific individuals who were responsible for the conduct he challenges.

E. Claims Against “Et Al.”

Free lists “ect. al. [sic]” as a Defendant. (ECF No. 1 at PageID 2.) This lack of specificity

in Plaintiff’s pleading warrants dismissal of his claims against such putative parties.

Federal Rule of Civil Procedure 8(a)(2) sets forth a liberal pleading standard, Smith v. City

of Salem, 378 F.3d 566, 576 n. 1 (6th Cir. 2004), requiring only “‘a short and plain statement of

the claim showing that the pleader is entitled to relief,’ in order to ‘give the [opposing party]

fair notice of what the ... claim is and the grounds upon which it rests,’” Twombly, 550 U.S. at

555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). It is a basic pleading essential that a

plaintiff must attribute factual allegations to particular defendants. Id. at 544 (holding that, in

order to state a claim, a plaintiff must make sufficient allegations to give a defendant fair notice of

the claim). Where a complaint fails to link a specific defendant to particular misconduct, the

complaint is subject to dismissal, even under the liberal constructions afforded to pro se

complaints. See, e.g., Gilmore v. Corr. Corp. of Am., 92 F. App’x 188, 190 (6th Cir. 2004). In

order that a plaintiff provide “fair notice” of his claims against putative parties, Rule 8 requires

him to identify the defendant(s) whom he feels are responsible for constitutional deprivations.

Generic identifiers such as “others” -- without surname specificity -- are insufficient to link

a specific defendant to offending actions. Such vagaries deprive intended defendants of notice of

a plaintiff’s claims so as to enable them to offer and prepare a defense. A person cannot be on

notice of a litigant’s claims if such person does not, in the first instance, even know they are an

intended party to the lawsuit.

Moreover, in order to state a claim for relief under § 1983, Plaintiff must link a named

defendant with some affirmative act or omission that demonstrates a violation of Plaintiff’s federal

rights. See 42 U.S.C. § 1983.

Plaintiff’s use of “ect. al.” falls far short of the minimal pleading standards of Fed. R. Civ.

P. 8 and the requirements for § 1983 claims.

V. AMENDMENT UNDER THE PLRA

The Sixth Circuit has held that a district court may allow a prisoner to amend his complaint

to avoid a sua sponte dismissal under the Prison Litigation Reform Act, 28 U.S.C. §§ 1915, et seq.

(the “PLRA”). Lucas v. Chalk, 785 F. App’x 288, 291 (6th Cir. 2019) (citing LaFountain v. Harry,

716 F.3d 944, 951 (6th Cir. 2013) (“[W]e hold, like every other circuit to have reached the issue,

that under Rule 15(a) a district court can allow a plaintiff to amend his complaint even when the

complaint is subject to dismissal under the PLRA”)); see also Brown v. R.I., 511 F. App’x 4, 5 (1st

Cir. 2013) (per curiam) (“Ordinarily, before dismissal for failure to state a claim is ordered, some

form of notice and an opportunity to cure the deficiencies in the complaint must be afforded”).

Leave to amend is not required where a deficiency cannot be cured. Gonzalez-Gonzalez v. United

States, 257 F.3d 31, 37 (1st Cir. 2001) (“This does not mean, of course, that every sua sponte

dismissal entered without prior notice to the plaintiff automatically must be reversed. If it is crystal

clear that ... amending the complaint would be futile, then a sua sponte dismissal may stand.”);

Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001) (“We agree with the majority view that sua

sponte dismissal of a meritless complaint that cannot be salvaged by amendment comports with

due process and does not infringe the right of access to the courts”).

The Court finds that Free should be granted an opportunity to amend his complaint, if he

chooses to do so.

VI. CONCLUSION

For all of the reasons explained above:

(1) None of the allegations in Free’s complaint (ECF No. 1) state a claim for relief

under § 1983. See 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1). The complaint is

DISMISSED WITHOUT PREJUDICE for failure to state a claim on which relief can be

granted, under 28 U.S.C. § 1915(e)(2)(B)(ii) and 1915A(b)(1).

(2) Leave to amend the complaint is GRANTED. Any amendment to Plaintiff’s

claims must be filed within twenty-one (21) days after the date of this order. Plaintiff is advised

that an amended complaint will supersede the original complaint and must be complete in itself

without reference to the prior pleadings. The amended complaint must be signed, and the text of

the amended complaint must allege sufficient facts to support each claim without reference to any

extraneous document. Any exhibits must be identified by number in the text of the amended

complaint and must be attached to the complaint. All claims alleged in an amended complaint

must arise from the facts alleged in the original complaint. Each claim for relief must be stated in

a separate count and must identify each Defendant sued in that count. If Plaintiff fails to amend

his complaint in a timely manner, the Court will dismiss this case and enter judgment. The Court

recommends that any such dismissal of this case be treated as a strike pursuant to 28 U.S.C.

§ 1915(g). See Simons v. Washington, No. 20-1406, 2021 WL 1727619, at *1 (6th Cir. May 3,

2021).

(3) Given that Plaintiff’s complaint is dismissed for failure to state a claim to relief,

Free’s request for appointment of counsel (ECF No. 1 at PageID 3) is DENIED as moot, subject

to his right to re-submit his request in the future if this case goes forward.

SO ORDERED, this 30th day of August, 2021.

s/ John T. Fowlkes

JOHN T. FOWLKES

UNITED STATES DISTRICT JUDGE