Clark v. Childress

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

SACOREY CLARK, )

)

Plaintiff, )

)

vs. ) No. 21-2458-SHM-tmp

)

MR. CHILDRESS, ET AL., )

)

Defendants. )

ORDER DISMISSING THE COMPLAINT WITHOUT PREJUDICE (ECF NO. 1);

GRANTING LEAVE TO AMEND;

AND DENYING PENDING MOTION (ECF NO. 7)

On July 8, 2021, Plaintiff Sacorey Clark, Federal Bureau of Prisons (“BOP”) inmate

registration number 45720-044, filed a pro se complaint seeking to invoke federal jurisdiction

under 28 U.S.C. §§ 13311, 13322, and 1367.3 (ECF No. 1.) When Clark filed his complaint, he

was confined at FCI-Memphis. (ECF No. 1 at PageID 2.)4 On July 21, 2021, the Court granted

1 “The district courts shall have original jurisdiction of all civil actions arising under the

Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331.

2 “The district courts shall have original jurisdiction of all civil actions where the matter

in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between

… citizens of different States …” 28 U.S.C. § 1332(a)(1).

3 “ … [I]n any civil action of which the district courts have original jurisdiction, the district

courts shall have supplemental jurisdiction over all other claims that are so related to claims in the

action within such original jurisdiction that they form part of the same case or controversy

under Article III of the United States Constitution …” 28 U.S.C. § 1367(a).

4 Clark is presently confined at Victorville Medium I FCI in San Bernardino, California.

(See https://www.bop.gov/inmateloc/.) Clark’s complaint arises from events that occurred during

his confinement at FCI-Memphis from September 2, 2020 through July 6, 2021. (See ECF No. 1

at PageID 4 & 6.) On March 7, 2022, a copy of the Court’s February 11, 2022 Order Denying

leave to proceed in forma pauperis. (ECF No. 5.) Clark sues: (1) Mr. Childress, the Acting

Warden of FCI-Memphis; (2) J. Vandiver, the Education Supervisor at FCI-Memphis; (3) Mr.

Odom, the Lieutenant / Acting Captain at FCI-Memphis; (4) A. Williams, a Lieutenant at FCI-

Memphis; (5) R. Johnson, a Unit Manager at FCI-Memphis; (6) B. Rinehart, a Case Manager at

FCI-Memphis; (7) A. Amjad, a Counselor at FCI-Memphis; and (8) Mr. Curtis, a Correctional

Officer and Union Representative at FCI-Memphis. (ECF No. 1 at PageID 1-3.) Clark seeks

specific relief, declaratory relief, injunctive relief, compensatory damages, and punitive damages.

(Id. at PageID 1 & 21-26.)

I. BACKGROUND

Clark’s complaint asserts fifteen claims:

(1) “assault[ ] by FCI-Memphis staff” on June 24, 2021 (ECF No. 1 at PageID 4 &

10-12);

(2) ongoing “affirmative misconduct” that began when Clark arrived to FCI-

Memphis on September 2, 2020 (id.);

(3) deprivation of Clark’s right to exhaust his administrative remedies (id. at

PageID 4-5 & 18-20);

(4) denial of Clark’s right of access to the courts (id.);

(5) failure to process Clark’s BOP grievance forms (id. at PageID 5 & 20);

(6) FCI-Memphis mailroom staff’s seizure of Clark’s outgoing legal mail (id. at

PageID 5-6);

Petitioner’s Motion Under Rule 60(b)(6), which the Clerk mailed to Clark at the Brooklyn

Metropolitan Detention Center, was returned. (See ECF No. 11 at PageID 60.) Clark must

promptly update the Clerk in writing when Clark is transferred to a different facility. Failure to do

so will result in appropriate sanctions, up to and including dismissal of this action, without further

notice. (See ECF No. 5 at PageID 42.)

2

(7) disciplinary proceedings “in excess” of 28 C.F.R. §§ 540-5435 (id. at PageID

6-7 & 10-11 & 15);

(8) confinement in a special housing unit (“SHU”) without operable typewriters

and law library computers, in retaliation for Clark’s filing grievances (id, at PageID

8-9, 11 & 17);

(9) SHU confinement “in excess” of 28 C.F.R. §§ 541 (id. at PageID 9 & 21);

(10) Rinehart’s excessive use of force on June 25, 2021 (id. at PageID 13-14);

(11) retaliatory assault (id. at PageID 15);

(12) incident reports against Clark “in excess” of 28 C.F.R. §§ 541-542 (id. at

PageID 15-16 & 18);

(13) unconstitutional conditions of confinement (id. at PageID 16);

(14) denial of access to the FCI-Memphis law library (id, at PageID 17); and

(15) unspecified “state law claims” (id. at PageID 1).

II. JURISDICTION

Twenty-eight U.S.C. § 1331 provides that federal district courts have “original jurisdiction

of all civil actions arising under the Constitution, laws, or treaties of the United States.” The “mere

invocation of § 1331, without more, is meaningless and does not in itself confer federal question

jurisdiction.” National Ass’n for the Advancement of Colored People–Special Contribution Fund

v. Jones, 732 F.Supp. 791, 793 n. 6 (N.D. Ohio 1990); see ECF No. 1 at PageID 1. To support

jurisdiction under § 1331, a complaint must allege valid claims under the United States

Constitution or some federal law providing a federal right of action.

5 Sections 540.10 – 540.25 of Title 28 of the Code of Federal Regulations (“Title 28”)

govern the establishment of correspondence procedures for inmates in BOP facilities. Sections

541.1 – 541.8 of Title 28 govern the BOP’s “inmate discipline program.” Sections 542.10 – 542.19

of Title 28 govern administrative remedy programs at BOP facilities. Section 541.21 of Title 28

establishes BOP Special Housing Units to “ensure the safety, security, and orderly operation” of

the facility. Sections 543.10 – 543.16 of Title 28 govern inmate legal activities at BOP facilities.

3

Clark’s complaint does not allege whether he asserts habeas claims, Federal Tort Claims

Act6 (“FTCA”) claims, or claims under Bivens v. Six Unknown Named Agents of the Federal

Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).7 The complaint is

reasonably construed to allege a deprivation of various federal constitutional rights, including but

not limited to, denial of Clark’s right of access to the courts, violation of Clark’s First Amendment

rights when Defendants seized Clark’s legal mail, excessive force against Clark, unconstitutional

conditions of confinement, false disciplinary reports, and retaliation. The Court liberally construes

the complaint as arising under Bivens, 403 U.S. 388. See Parry, 236 F.3d at 306 n.1.

III. 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.

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

In assessing whether the complaint states a claim on which relief may be granted, the Court

applies the standards of 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

6 The FTCA waives the United States’ sovereign immunity and authorizes suits for money

damages to be brought against the United States based on some types of negligent acts or omissions

of federal employees, and, in some instances, the intentional misconduct of those

employees. See 28 U.S.C. §§ 1346(b), 2671 et seq. Unlike a Bivens action, the defendant in a

claim under the FTCA is always the United States. See id.

7 A Bivens action arises from a violation of an individual’s federal constitutional rights by

one who is acting under color of federal law. Parry v. Mohawk Motors of Mich., Inc., 236 F.3d

299, 306 n.1 (6th Cir. 2000).

4

(2007). Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010). Applying 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. Federal Rule of

Civil Procedure 8 also provides guidance on this issue. Although Rule 8 requires that a complaint

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 accord 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)). 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. 2011)

(affirming dismissal of pro se complaint for failure to comply with “unique pleading

requirements”).

IV. REQUIREMENTS TO STATE A CLAIM UNDER BIVENS

Bivens, 403 U.S. 388, provides a right of action against federal employees who violate an

individual’s rights under the United States Constitution. “Under the Bivens line of cases, the

Supreme Court has recognized a cause of action against federal officials for certain constitutional

violations when there are no alternative processes to protect the interests of the plaintiff and no

5

special factors counseling against recognizing the cause of action.” Koubriti v. Convertino, 593

F.3d 459, 466 (6th Cir. 2010).

V. ANALYSIS

Clark alleges violation of his: (1) procedural due process right to Defendants’ adherence to

federal regulations about inmates’ correspondence procedures, discipline, exhaustion of

administrative remedies8, and segregated housing; (2) First Amendment rights9; and (3) Eighth

Amendment rights.10 Because the complaint does not specify the capacity in which Clark sues the

Defendants, see ECF No. 1 at PageID 1-3, Clark’s claims are treated as official capacity claims.

Northcott v. Plunkett, 42 F. App'x 795, 796 (6th Cir. 2002). Official capacity claims, in turn, are

treated as claims against the United States.

A Bivens action, based on alleged constitutional violations by federal officials, may be

brought against federal officers in their individual capacities. See, e.g., Robinson v. Overseas

Military Sales Corp., 21 F.3d 502, 509 (2d Cir. 1994); see also Randall v. United States, 95 F.3d

339, 345 (4th Cir. 1996). To state a Bivens claim plausibly, “a plaintiff must plead that each

Government-official defendant, through the official’s own individual actions, has violated the

8 See, e.g., 42 U.S.C. § 1997e(a) (“No action shall be brought with respect to prison

conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any

jail, prison, or other correctional facility until such administrative remedies as are available are

exhausted”).

9 See, e.g., Bounds v. Smith, 430 U.S. 817, 821–22 (1977) (citing Ex Parte Hull, 312 U.S.

546 (1941)) (prisoners retain a constitutional right of access to the courts); Rodgers v. Hawley, 14

F. App’x 403, 409 (6th Cir. 2001) (citation omitted) (discussing prisoners’ First Amendment right

of access to the courts); Thaddeus-X v. Blatter, 175 F.3d 378, 388 (6th Cir. 1999) (discussing

prisoners’ First Amendment right against retaliation for engaging in protected conduct).

10 Taylor v. Davidson Cnty. Sheriff's Dep’t, 832 F. App’x 956, 959 (6th Cir. 2020) (the

Eighth Amendment “proscribes ‘the unnecessary and wanton infliction of pain’ against

prisoners”) (quoting Hudson v. McMillian, 503 U.S. 1, 5 (1992)); Wilson v. Seiter, 501 U.S. 294

(1991) (prison officials must provide humane conditions of confinement).

6

Constitution” in a manner that can be vindicated under Bivens. See Walter J. Himmelreich v. BOP,

No. 11-3474, 2012 WL 13226685, at *2 (6th Cir. May 7, 2012) (citing Iqbal, 556 U.S. at 676);

Nuclear Transp. & Storage v. United States, 890 F.2d 1348, 1355 (6th Cir. 1989) (complaints

asserting a Bivens cause of action are subject to the same heightened pleading requirements as

claims under § 1983). A suit under Bivens may be brought only against individual officers for

certain constitutional violations.

Clark’s complaint does not allege that the Defendants violated the Constitution in their

individual capacities. Clark’s claims are treated as official capacity claims against the Defendants.

Clark’s official capacity claims against the Defendants under Bivens fail as a matter of law.

Because “the real party in interest in an official-capacity suit is the entity represented and not

the individual officeholder,” Bivens does not permit suits against government employees in their

official capacities. Himmelreich, 2012 WL 13226685, at *2 (citing Karcher v. May, 484 U.S. 72,

78 (1987) and Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 72 (2001) (“With respect to the alleged

constitutional deprivation, [the plaintiff’s] only remedy lies against the individual”)). The bar of

sovereign immunity cannot be avoided by naming officers or employees of the United States, such

as employees or officials of the BOP, as defendants. See FDIC v. Meyer, 510 U.S. 471, 484–86,

114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (because an action against a federal agency, such as

the BOP or federal officers in their official capacities, is essentially a suit against the United States,

such suits are also barred under the doctrine of sovereign immunity, unless such immunity is

waived).11

11 To the extent Clark challenges FCI-Memphis policies that implement 28 C.F.R. §§ 540

– 543, the complaint fares no better. The Supreme Court has held that the purpose of Bivens is not

advanced by challenges to detention policies. See Ziglar v. Abbasi, 137 S. Ct. 1843, 1860, 198

L.Ed.2d 290 (2017). Lawsuits about detention policies do not lend themselves to damage remedies

under Bivens, but acts by federal officers do. See Malesko, 534 U.S. at 70 (“The purpose

7

Because Clark’s official capacity claims against the Defendants under Bivens fail as a

matter of law, the complaint is DISMISSED WITHOUT PREJUDICE.12 See 28 U.S.C.

§§ 1915(e)(2)(B)(iii) and 1915A(b)(2).

VI. MOTION

On August 16, 2021, Clark “move[d] … for [an] order granting … [1] a free copy of his

filed pleadings in this civil case; … [2] a standing order … that all items mailed to Plaintiff be sent

with the phrase ‘Legal Mail, Open In The Presence Of The Inmate’; [and] [3] corrections … to the

case record and docket sheet [about Defendants’ and Clark’s states of domicile and the amount in

controversy].” (ECF No. 7 at PageID 1 & 48-49.)

Clark’s August 2, 2021 filing was docketed as an “amended complaint.” (ECF No. 7.) The

Clerk is DIRECTED to modify the docket to style ECF No. 7 as a “motion for relief.”

The relief Clark’s motion seeks is unavailable.

A. Request For Copies Of Pleadings

of Bivens is to deter individual federal officers from committing constitutional violations”)

(emphasis added).

12 Even suing the Defendants in their individual capacities would not salvage the entire

complaint. Clark’s allegations fail to support cognizable Bivens claims.

As to Clark’s retaliation claim (ECF No. 1 at PageID 8-9, 11 & 17), the U.S. Supreme

Court has never recognized a Bivens action for any First Amendment right, and it rejected a First

Amendment retaliation claim against federal employees decades ago. Callahan v. BOP, 965 F.3d

520, 523 (6th Cir. 2020) (citing Reichle v. Howards, 566 U.S. 658, 663 n.4, 132 S.Ct. 2088, 182

L.Ed.2d 985 (2012) and Bush v. Lucas, 462 U.S. 367, 368, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983)).

As to Clark’s claims of “affirmative misconduct” and unconstitutional conditions of

confinement (ECF No. 1 at PageID 1 & 16), the complaint insufficiently alleges facts

demonstrating any claim to relief. Federal Rule of Civil Procedure 8(a)(2) requires pleadings to

contain “a short and plain statement of the claim showing that the pleader is entitled to

relief.” Clark’s vague labels and sparse allegations do not set forth sufficient facts to satisfy Fed.

R. Civ. P. 8(a)’s pleading standard.

8

“A federal prisoner is not entitled to obtain copies of court records at the Government’s

expense to search for possible defects merely because he is indigent.” Campbell v. United States,

538 F.2d 692, 693 (5th Cir. 1976); see also Ward v. State, No. 16-2751, 2017 WL 6546954, at *1

(6th Cir. June 22, 2017); United States v. Bradford, 826 F.2d 1065 (6th Cir. 1987) (“the district

court may require [defendant] to demonstrate a non-frivolous claim and a need for the alleged

transcript in question”); Bentley v. United States, 431 F.2d 250, 252 (6th Cir. 1970).

Under 28 U.S.C. § 1914(b), the district court must collect a fee for photocopies of court

records in an amount prescribed by the Judicial Conference of the United States. The Judicial

Conference Schedule ¶ 4(1) sets the photocopying fee at fifty cents per page. See Judicial

Conference Schedule of Fees, note following 28 U.S.C. § 1914. Section 1915 does not “give the

litigant a right to have documents copied and returned to him at government expense.” In re

Richard, 914 F.2d 1526 (6th Cir. 1990).

The Court has previously denied Clark’s request for copies of his pleadings. (ECF No.

10.)

If Clark seeks to purchase copies of documents in his case, he should correspond directly

with the Court Clerk’s office and make appropriate arrangements for pre-payment. Clark may, of

course, obtain access to any public records available from the Court, but Clark must pay a fee for

any copies he requests.

B. Request For “Legal Mail” Designations

Clark has not stated the reason for his request that the Clerk send Clark’s mail to him with

the phrase “Legal Mail, Open In The Presence Of Inmate.” (ECF No. 7 at PageID 49.)

The Court has previously denied Clark’s request for “Legal Mail” designations on mail

sent to Clark by the Clerk. (ECF No. 10.)

9

All mail from the Court is identifiable because the envelope is pre-printed with the Court’s

return address. Clark’s correctional institution is thus able to identify and decide based on the

prison’s regulations and relevant law if the mail constitutes legal mail. To the extent Clark believes

that his constitutional rights have been violated due to mishandling of legal mail, Clark may file

an action under Bivens, 403 U.S. 388, and present Clark’s factual allegations.

C. Request For Docket Corrections

Clark’s request for modification of the docket about the Defendants’ and Clark’s states of

domicile and the amount in controversy appears to seek a determination by the Court about

diversity jurisdiction under 28 U.S.C. § 1332(a). Docket entries are not conclusive of jurisdictional

determinations.

Because the Court is granting Clark leave to amend his claims, Clark may include in a

timely-filed amended pleading any allegations about the parties’ domiciles and the amount in

controversy for the Court’s future consideration if this case proceeds.

For these reasons, the motion for relief (ECF No. 7) is DENIED.

VII. 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”).

10

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 grants leave to

amend under the guidelines that the Court sets forth below.

An amended pleading must comply with the Federal Rules of Civil Procedure, including

but not limited to Rule 8’s requirement of a short and plain statement of Clark’s claims. An

amended complaint supersedes the original complaint and must be complete in itself without

reference to the prior pleadings. Clark must sign the amended complaint, 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 on that count. If Clark chooses to amend

his complaint, Clark shall file his amended claims WITHIN TWENTY-ONE DAYS of the date of

this Order.

The Court grants Clark only one opportunity to amend his claims. If Clark 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.

11

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

2021).

VIII. CONCLUSION

For the reasons explained above:

(1) The complaint (ECF No. 1) is DISMISSED WITHOUT PREJUDICE in its entirety

for failure to state a claim to relief because it seeks monetary relief from Defendants who are

immune to suit for such relief. See 28 U.S.C. §§ 1915(e)(2)(B)(iii) and 1915A(b)(2);

(2) Leave to amend is GRANTED;

(3) Clark’s motion for relief (ECF No. 7) is DENIED; and

(4) The Clerk is DIRECTED to mail a copy of this Order to Clark at his Victorville

Medium I FCI address in San Bernardino, California, as currently shown on the Federal Bureau

of Prisons website. (See https://www.bop.gov/inmateloc/.)

IT IS SO ORDERED this 20th day of April, 2022.

/s/ Samuel H. Mays, Jr.

SAMUEL H. MAYS, JR.

UNITED STATES DISTRICT JUDGE

12