Banks v. Elliot

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

CURTIS BANKS, )

)

Plaintiff, )

) No. 2:21-cv-02036-TLP-tmp

v. )

)

TYRONE ELLIOT, Detention Response )

Team, OFFICER (FNU) TURNER, )

Detention Response Team, OFFICER (FNU) )

BRADFIELD, Detention Response Team, )

)

Defendants. )

ORDER MODIFYING THE DOCKET, DISMISSING THE COMPLAINT WITHOUT

PREJUDICE, AND GRANTING LEAVE TO AMEND

Pro se Plaintiff Curtis Banks sued Defendants Tyrone Elliott, Officer (FNU) Turner, and

Officer (FNU) Bradfield—all three of whom serve on the Shelby County Jail’s Detention

Response Team (“DRT”)—under 42 U.S.C. § 1983 for injuries Plaintiff sustained while

confined at the Shelby County Jail located at 201 Poplar Avenue in Memphis, Tennessee.1 (ECF

No. 1 at PageID 1–2.) The Court granted Plaintiff leave to proceed in forma pauperis and

assessed the $350 habeas filing fee. (ECF No. 9.)

For the reasons below, the Court DISMISSES the complaint WITHOUT PREJUDICE,

GRANTS Plaintiff leave to amend, DENIES Plaintiff’s request to appoint counsel, and

respectfully DIRECTS the Clerk to modify the docket to add Shelby County as a Defendant.

1 In July 2021, Plaintiff notified the Court that Shelby County Jail released him from custody.

(ECF No. 13; see also https://apps.tn.gov/foil-app/search.jsp (noting Plaintiff’s present

assignment to the Memphis Probation and Parole Office).)

I. Factual Background

The original complaint provides a brief statement of facts. Plaintiff asserts that while

confined at the Shelby County Jail, Defendants housed him in a cell with Keylone Jones, who

Plaintiff calls his “EIF,” starting on December 12, 2020.2 (ECF No. 1 at PageID 2.) Plaintiff

then states that he “had to go to the med for my injurys [sic] that I received from defending

myself” about two weeks later. (Id.) And Plaintiff states that Defendants “are respon[sible] for

my injury that I received [be]cause they housed me with my EIF.” (Id.) The complaint contains

no request for relief.

After suing, Plaintiff wrote a letter to the Court attaching many exhibits. (ECF No. 5.) In

this letter Plaintiff asserts that Defendants should not have placed him in a cell with Keylone

Jones because of a previous gang fight in October 2019. (Id. at PageID 14.) According to the

letter, Plaintiff told Defendants that “I could not go in the cell with the inmate because we were

in a gang fight.” (Id. at PageID 14–15.) Plaintiff states that a “DRT officer . . . told me that I

was lying,” and then placed him in the cell with Jones anyway. (Id. at PageID 15.) According to

the letter, Plaintiff got into a fight with Jones in late December 2020, which led to Plaintiff

breaking a finger. (Id.)

In an April 2021 letter, Plaintiff states that he is suing Defendants “in their individual

capacities for their own individual actions.” (ECF No. 10 at PageID 45.) Plaintiff also states

that he is seeking $25,000 from each Defendant “for pain and suffering as well as no protection

by staff.” (Id.) After requesting this sum from each Defendant, the letter states, “and Shelby

County in official capacity for 6,000,000.” (Id.) Plaintiff wrote another letter in May 2021,

2 The Court construes the acronym “EIF” to mean “enemy in the facility.” See McCarthy v.

Geist, No. C 16-06782 WHA, 2018 WL 2047396, at *3 (N.D. Cal. May 2, 2018).

which reiterates that he is seeking $25,000 from each Defendant for pain and suffering. (ECF

No. 11 at PageID 47.) This letter then adds, “plus the Shelby County Jail I am asking for

6,000,000 for the damage to my right index[] finger . . . .” (Id.) The Court construes this letter

as seeking to assert a claim against Shelby County.3

Based on the complaint and Plaintiff’s letters, he appears to assert § 1983 claims against

Defendants for wrongful housing assignment and failure to protect. (ECF Nos. 1 at PageID 2; 10

at PageID 45.)

II. Analysis of Complaint

A. Legal Standard

Under 28 U.S.C. § 1915A, courts review and screen civil complaints “in which a prisoner

seeks redress from a governmental entity or officer or employee of a governmental entity.” 28

U.S.C. § 1915A(a). The statute provides various grounds for dismissal, including dismissing the

complaint or any part of it that “is frivolous, malicious, or fails to state a claim upon which relief

may be granted,” or “seeks monetary relief from a defendant who is immune from such relief.” 28

U.S.C. § 1915A(b); see also 28 U.S.C. § 1915(e)(2)(B) (screening statute for in forma pauperis

proceedings).

To determine whether the complaint fails to state a claim upon which relief may be

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

out by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662, 677–79 (2009) and 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 this standard, the Court accepts the complaint’s “well-pleaded” factual allegations

3 The Court respectfully DIRECTS the Clerk to modify the docket to add Shelby County as a

Defendant.

as true and then determines whether those 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 need not accept conclusory allegations as true. Iqbal, 556 U.S. at 679. And all legal

conclusions in a complaint “must be supported by factual allegations.” Id. Rule 8(a)(2) of the

Federal Rules of Civil Procedure requires a complaint to contain “a short and plain statement of

the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). And so a

plaintiff’s factual allegations must make a “‘showing,’ rather than a blanket assertion, of

entitlement to relief.” Twombly, 550 U.S. at 555 n.3.

Courts hold complaints drafted by pro se litigants “to less stringent standards” than those

drafted by lawyers. Williams, 631 F.3d at 383 (quoting Martin v. Overton, 391 F.3d 710, 712

(6th Cir. 2004)). That said, pro se litigants must comply with 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. 2011) (“[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))).

B. Plaintiff’s § 1983 Claims

To state a claim under 42 U.S.C. § 1983 a plaintiff must allege two elements: (1) “the

deprivation of a right secured by the Constitution or laws of the United States,” and (2) “the

deprivation was caused by a person acting under color of state law.” Tahfs v. Proctor, 316 F.3d

584, 590 (6th Cir. 2003) (quoting Ellison v. Garbarino, 48 F.3d 192, 194 (6th Cir. 1995)).

i. Official-Capacity Claims and Claims Against Shelby County

If Plaintiff intended to assert claims against Defendants in their official capacities, the

Court construes them as claims against Shelby County. See Arsan v. Keller, 784 F. App’x 900,

909 (6th Cir. 2019) (“An official-capacity claim is just a claim against the municipality.”); see

also Cady v. Arenac Cnty., 574 F.3d 334, 342 (6th Cir. 2009) (“In an official capacity action, the

plaintiff seeks damages not from the individual officer, but from the entity for which the officer

is an agent.”); Essex v. Cnty. of Livingston, 518 F. App’x 351, 354 (6th Cir. 2013) (“[A]n

official-capacity claim is merely another name for a claim against the municipality.”).

“A municipality is a ‘person’ under 42 U.S.C. § 1983, and so can be held liable for

constitutional injuries for which it is responsible.” Morgan v. Fairfield Cnty., 903 F.3d 553, 565

(6th Cir. 2018) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978)). But “[a]

municipality cannot be held liable simply because one of its employees has committed a

constitutional violation.” Andrews v. Wayne Cnty., 957 F.3d 714, 721 (6th Cir. 2020) (citing

Monell, 436 U.S. at 694); see also Bible Believers v. Wayne Cnty., 805 F.3d 228, 260 (6th Cir.

2015) (“Municipalities are not vicariously liable for the actions of their employees.”). “A

plaintiff raising a municipal liability claim under § 1983 must demonstrate that the alleged

federal violation occurred because of a municipal policy or custom.” Burgess v. Fischer, 735

F.3d 462, 478 (6th Cir. 2013) (citing Monell, 436 U.S. at 694).

“A plaintiff can make a showing of an illegal policy or custom by demonstrating one of

the following: (1) the existence of an illegal official policy or legislative enactment; (2) that an

official with final decision-making authority ratified illegal actions; (3) the existence of a policy

of inadequate training or supervision; or (4) the existence of a custom of tolerance or

acquiescence of federal rights violations.” Id. (citing Thomas v. City of Chattanooga, 398 F.3d

426, 429 (6th Cir. 2005)).

But here, Plaintiff has not adequately pleaded a claim under any of these theories of

municipal liability. The sparse allegations in Plaintiff’s complaint, even if supplemented by the

allegations in his letters, do not allege that any municipal policy or custom of Shelby County led

to a constitutional violation. The Court therefore finds that Plaintiff’s complaint fails to state a

claim against Defendants in their official capacities or against Shelby County.

ii. Wrongful Housing Assignment Claims

Plaintiff asserts that Defendants wrongfully assigned him to a cell with Jones, an EFI.

(ECF No. 1 at PageID 2.) If Plaintiff seeks to assert individual-capacity claims against

Defendants for wrongful assignment, his allegations set forth no constitutional claim. Prisoners

have no constitutional right to confinement in a particular prison, housing assignment, or security

classification. Nunez v. FCI Elkton, 32 F. App’x 724, 725 (6th Cir. 2002); see also Sandin v.

Conner, 515 U.S. 472, 484–87 (1995); Olim v. Wakinekona, 461 U.S. 238, 245–46 (1983);

Williams v. Bezy, 97 F. App’x 573, 574 (6th Cir. 2004). And “[a]s maintaining security, order,

and discipline are essential goals of a corrections system, prison officials are accorded wide

latitude in the … application of prison policies and procedures.” Hayes v. Tennessee, 424 F.

App’x 546, 550 (6th Cir. 2011) (citing Bell v. Wolfish, 441 U.S. 520, 546–47 (1979)). For these

reasons, Plaintiff cannot maintain a § 1983 claim for wrongful housing assignment.

iii. Failure to Protect Claims

As for Plaintiff’s individual-capacity claims against Defendants, Plaintiff first alleges that

Defendants housed him with an EIF, or enemy in facility. (ECF No. 1 at PageID 2.) Plaintiff

states that he suffered an injury from defending himself. (Id.) And one of Plaintiff’s letters

attributes liability to Defendants because he received “no protection by staff.” (ECF No. 10 at

PageID 45.) The Court liberally construes these allegations as asserting a claim for failure to

protect.

“[T]he treatment a prisoner receives in prison and the conditions under which he is

confined are subject to scrutiny under the Eighth Amendment.” Rhodes v. Michigan, 10 F.4th

665, 673 (6th Cir. 2021) (quoting Farmer v. Brennan, 511 U.S. 825, 832 (1994)). The Eighth

Amendment requires prison officials to “take reasonable measures to guarantee the safety of . . .

inmates.” Id. (quoting Farmer, 511 U.S. at 832). And a plaintiff seeking to assert an Eighth

Amendment claim for “a failure to protect the plaintiff from other inmates, . . . ‘must show that

the prison officials acted with ‘deliberate indifference’ to a substantial risk [of] serious harm.’”

Id. (quoting Curry v. Scott, 249 F.3d 493, 506 (6th Cir. 2001)). “This showing ‘encompasses

both a subjective and an objective component.’” Id. (quoting Curry, 249 F.3d at 506.) To make

a claim for failure-to-protect “against a prison official, the plaintiff must show that: (1)

‘objectively,’ he was ‘incarcerated under conditions posing a substantial risk of serious harm,’;

and (2) the official acted with ‘deliberate indifference’ to inmate safety, meaning the official was

‘subjectively aware of the risk’ and ‘fail[ed] to take reasonable measures to abate it.’” Reedy v.

West, 988 F.3d 907, 912 (6th Cir. 2021) (quoting Farmer, 511 U.S. at 829, 834, 847.)

The allegations in the complaint fall well short of either showing. The complaint states

only that Defendants housed Plaintiff with an EIF, Jones. This lone allegation fails to establish a

“sufficiently serious” deprivation or deliberate indifference by Defendants. See Rhodes, 10 F.4th

at 673. Even if the Court expands its review to the allegations in Plaintiff’s letters, Plaintiff fails

to state a claim for failure to protect. True enough, Plaintiff alleges in one of his letters that he

informed Defendants that they should not house him with Jones because of an earlier gang fight.

(ECF No. 5 at PageID 14.) According to the letter, one DRT officer then accused Plaintiff of

lying and placed him in the cell with Jones anyway. (Id. at PageID 15.) But Plaintiff does not

allege which Defendant took this action. And Plaintiff does not allege that any Defendant was

present during his fight with Jones and failed to intervene.

At bottom, “[p]ersons sued in their individual capacities under § 1983 can be held liable

based only on their own unconstitutional behavior.” Heyerman v. Cnty. of Calhoun, 680 F.3d

642, 647 (6th Cir. 2012) (citing Murphy v. Grenier, 406 F. App’x 972, 974 (6th Cir. 2011)

(“Personal involvement is necessary to establish section 1983 liability”); Gibson v. Matthews,

926 F.2d 532, 535 (6th Cir. 1991) (noting that personal liability “must be based on the actions of

that defendant in the situation that the defendant faced, and not based on any problems caused by

the errors of others, either defendants or non-defendants”)). And Plaintiff has not sufficiently

alleged any conduct specific to an individual Defendant, let alone personal involvement in

conduct rising to the level of unconstitutional behavior. And so Plaintiff fails to state a claim for

failure to protect under the Eighth Amendment. The Court therefore DISMISSES the complaint

WITHOUT PREJUDICE. But as explained below, the Court also GRANTS Plaintiff leave to

amend his complaint within thirty days from the entry of this order.

III. Plaintiff’s Request for Appointment of Counsel

Plaintiff states in his complaint, “I would like the Court to take [over] for me because I

don’t know what else to do.” (ECF No. 1 at PageID 3.) If Plaintiff is asking the Court to appoint

counsel to represent him here, he must do more. While the Court may appoint counsel for

indigent litigants under 28 U.S.C. § 1915(e)(1), “[t]he appointment of counsel in a civil

proceeding is not a constitutional right.” Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir.

2003); see also Shepherd v. Wellman, 313 F.3d 963, 970 (6th Cir. 2002); Lavado v. Keohane,

992 F.2d 601, 605–06 (6th Cir. 1993). Rather, appointment of counsel is “a privilege that is

justified only by exceptional circumstances.” Lavado, 992 F.2d at 606 (internal quotation marks

and citation omitted). That Plaintiff is unfamiliar with the law does not lead to the type of

exceptional circumstance that justifies appointment of counsel. Given the complexity of the

factual and legal issues at play, Plaintiff has not shown that appointment of counsel is warranted.

The Court therefore DENIES Plaintiff’s request for appointed counsel.

IV. 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. (“PLRA”). See Lucas v. Chalk, 785 F. App’x 288, 291 (6th Cir. 2019); see also

LaFountain v. Harry, 716 F.3d 944, 951 (6th Cir. 2013) (“[U]nder 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.”). Indeed, the Sixth Circuit generally prefers “liberality” in allowing plaintiffs to

amend, even at the screening stage under the PLRA. See Lucas, 785 F. App’x at 292

(“Generally, ‘[i]f it is at all possible that the party . . . can . . . state a claim for relief, the court

should dismiss with leave to amend.’” (quoting Brown v. Matauszak, 415 F. App’x 608, 614

(6th Cir. 2011))).

But courts need not grant leave to amend when a plaintiff cannot cure a deficiency in his

pleading. See Pittman v. Experian Info. Sols., Inc., 901 F.3d 619, 640-41 (6th Cir. 2018); see

also McDonald v. Lasslett, No. 18-2435, 2019 WL 2592572, * 2–3 (6th Cir. May 28, 2019)

(“[A]lthough a district court may allow a plaintiff to amend his complaint before entering a sua

sponte dismissal, it is not required to do so, and leave to amend should be denied if the

amendment would be futile.” (quoting Bishawi v. Ne. Ohio Corr. Ctr., 628 F. App’x 339, 347

(6th Cir. 2014))). With this in mind, the Court GRANTS Plaintiff leave to amend his complaint

within thirty days from the entry of this order under the guidelines set forth below.

The Court reminds Plaintiff that an amended complaint must be complete without reference

to an earlier pleading. Petitioner must sign an amended complaint, and the text of the amended

complaint must allege enough facts to support each claim without reference to any other document.

Petitioner must identify any exhibits by number in the text of the amended complaint and he must

attach them to the amended complaint. And if Plaintiff does not timely amend, the Court will

dismiss the complaint with prejudice without further warning. The Court recommends that any

such dismissal of this case be treated as a strike under 28 U.S.C. § 1915(g). See Simons v.

Washington, No. 20-1406, 2021 WL 1727619, at *1 (6th Cir. May 3, 2021).

V. Conclusion

For the reasons explained above, the Court DISMISSES the complaint WITHOUT

PREJUDICE under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). The Court also GRANTS

Plaintiff leave to amend within thirty days from the entry of this order. Lastly, the Court

DENIES Plaintiff’s request for appointment of counsel.

SO ORDERED, this 31st day of January, 2022.

s/Thomas L. Parker

THOMAS L. PARKER

UNITED STATES DISTRICT JUDGE