McKennon v. Tennessee Department of Corrections

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

EASTERN DIVISION

)

JUSTIN MACK McKENNON, )

)

Petitioner, )

)

v. ) Case No. 1:22-cv-01049-SHM-tmp

)

TENNESSEE DEPARTMENT )

OF CORRECTIONS, ET AL., )

)

Defendants. )

)

ORDER DISMISSING THE CONSOLIDATED COMPLAINT (ECF NOS. 1, 4 & 9) IN

PART WITH PREJUDICE AND IN PART WITHOUT PREJUDICE; GRANTING

LEAVE TO AMEND CLAIMS IN THE CONSOLIDATED COMPLAINT DISMISSED

WITHOUT PREJUDICE, AND DIRECTING CLERK TO MODIFY THE DOCKET

_____________________________________________________________________________

On March 16, 2022, Plaintiff, Justin Mack McKennon, Tennessee Department of

Correction (“TDOC”) prisoner number 00388254, filed a pro se complaint (the “Complaint”)

pursuant to 42 U.S.C. § 1983. (ECF No. 1.) When McKennon filed the Complaint, he was confined

at the Hardeman County Correctional Facility (the “HCCF”), in Whiteville, Tennessee.1 On

March 17, 2022, the Court ordered McKennon to comply with 28 U.S.C. § 1915(A)(1)-(2) or pay

the four hundred and two dollar ($402) civil filing fee. (ECF No. 3.) On April 11, 2022,

McKennon filed an amended complaint (the “Amended Complaint”) and a motion for leave to

proceed in forma pauperis (the “IFP Motion”). (ECF Nos. 4 & 5.) On April 18, 2022, the Court

issued a second order directing McKeenon to comply with 28 U.S.C. § 1915(A)(1)-(2) or pay the

1 According to the Tennessee Department of Correction Felony Offender Information

website, McKennon’s sentence ended on March 27, 2023. (See

https://foil.app.tn.gov/foil/details.jsp (listing McKennon as “inactive”) (last accessed Jan. 15,

2025).)

four hundred and two dollar ($402) civil filing fee.2 (ECF No. 6.) On May 13, 2022, McKeenon

filed a second motion to proceed in forma pauperis. (ECF No. 7.) On May 19, 2022, the Court

granted leave to proceed in forma pauperis and assessed the three hundred and fifty dollar

($350.00) civil filing fee pursuant to the Prison Litigation Reform Act, 28 U.S.C. §§ 1915, et seq.

(the “PLRA”). (ECF No. 8 (the “IFP Order”).) The Court notified McKennon that, “[i]f [he] is

transferred to a different prison or released, he is ORDERED to notify the Court immediately, in

writing, of his change of address … If Plaintiff fails to abide by these or any other requirements of

this [O]rder, the Court may impose appropriate sanctions, up to and including dismissal of this

action, without any additional notice or hearing by the Court.” (Id. at PageID 38.) McKennon has

not notified the Clerk of Court that McKennon has been released from confinement.

On June 21, 2022, McKennon filed an unnamed document comprised of four hand-written

pages listing complaints and four pages containing inmate grievance reports (the “Letter”). (ECF

No. 9.) The Court CONSOLIDATES the Complaint (ECF No. 1), the Amended Complaint (ECF

No. 4) and the Letter (ECF No. 9) as the “Consolidated Complaint” for the purpose of screening

McKennon’s claims pursuant to the PLRA.

The Consolidated Complaint addresses an incident in which McKennon’s “ear was bitten

off [at the HCCF] and the peice (sic) was lost in the ER [Jackson-Madison County General

Hospital Emergency Room]” on February 7, 2022. (ECF Nos. 1 & 4 at PageID 2, 15.) The majority

of the Consolidated Complaint’s claims occur between February 2022 and May 2022. (See ECF

Nos. 4 & 9 at PageID 15, 39-47.) The Consolidated Complaint is liberally construed to allege

claims of: (1) racial discrimination; (2) cruel and unusual punishment; (3) conditions of

2 McKennon failed to attach a prison trust account statement to his IFP Motion. (See

ECF No. 5.)

confinement; (4) deprivation or denial of medical care; (5) medical negligence; and (6) medical

malpractice. (ECF Nos. 4 & 9 at PageID 15-19, 39-47.) McKennon sues: (1) TDOC; (2) HCCF;

(3) CoreCivic; (4) Jackson-Madison County General Hospital (the “JMCGH”); and (5) the

JMCGH Emergency Room (collectively, the “JMCGH Defendants”). (ECF No. 4 at PageID 13.)

McKennon seeks: (1) one million dollars ($1,000,000.00) from each Defendant; (2) a home to live

in when released from prison; (3) an office to work from to help prisoners and young people to

know about their civil rights; (4) to have a say in prison reform; and (5) to have the Courts provide

funding for his trust account. (Id. at PageID 17, 19.)

The Consolidated Complaint (ECF Nos. 1, 4 & 9) is before the Court. For the reasons

explained below, the Court: (1) DISMISSES Plaintiff’s Consolidated Complaint WITHOUT

PREJUDICE for failure to state a claim to relief against Defendants; and (2) GRANTS leave to

amend the claims dismissed without prejudice.

I. BACKGROUND

The Court assumes McKennon’s allegations are true for purposes of screening the

Consolidated Complaint. CoreCivic and TDOC have not provided safe and adequate housing to

McKennon since his arrival at HCCF. (ECF No. 4 at PageID 15.) “It’s worse than being in a war

zone [and] needs to be shut down now.” (Id.) On February 7, 2022, no corrections officers were

on post and McKennon’s ear was bitten off. (Id.) The piece of McKennon’s ear that was bitten

off was lost in the JMCGH Emergency Room. (Id. at PageID 14.) The doctors at JMCGH had to

remove skin from McKennon’s chest to “replace it.” (Id.) The corrections officers at HCCF are

never on post and are understaffed. (Id.) McKennon is not being allowed five hours of recreation

time a week and there is no recreation equipment and there are no basketball goals in the

segregation recreation areas. (Id.) McKennon’s doctors at JMCGH advised that he should be

placed in medical observation on his return to the prison. McKennon returned to HCCF but was

never placed in medical observation. (Id. at PageID 17.) Dr. John G. Sparrow, the plastic surgeon

at JMCGH, was “mad.” McKennon does not provide any additional details about Dr. Sparrow.

(Id.) McKennon alleges his “civil rights are continually being broke (sic).” (Id.) McKennon

alleges “they are messing with legal mail.” (Id.) McKennon is being bitten by ants in his cell

while he sleeps. (Id.) McKennon has no mirror in his cell, has no chairs to sit on, and has no table

to eat, read, or do legal work. (Id.)

McKennon alleges people are being beaten, stabbed, overdosed, and dying every day. (Id.

at PageID 18.) McKennon alleges white prisoners are being discriminated against in grievance

proceedings. (Id.) McKennon alleges in twenty-one separate handwritten paragraphs his

complaints about prison conditions at HCCF from March 14, 2022, through May 4, 2022. (ECF

No. 9 at PageID 39-42.) On March 14, 2022, McKennon alleges he sent a “request to the warden”

about his inadequate housing. (Id. at PageID 39.) McKennon complains he has no mirror, panic

button or adequate storage for the personal items in his cell. (Id.) McKennon alleges he hasn’t

received a reply from the warden about his “request.” (Id.) However, McKennon attaches an

inmate grievance dated March 19, 2022, containing these complaints and several others. (Id. at

PageID 46-47.) McKennon also attaches a response from grievance chairperson Sgt. Wilson,

stating that McKennon’s grievance could not be processed because McKennon failed to follow

TDOC policy. (Id. at PageID 45.)

McKennon alleges that, on March 15, 2022, he sent requests to the warden because his

oatmeal and eggs were served cold and he did not receive sweetener, coffee, or Kool-Aid.

McKennon received no reply. (Id. at PageID 39.) McKennon alleges that, on March 19, 2022, he

sent a request to the warden saying he wanted to appeal his disciplinary board conviction because

TDOC policies had been violated and McKennon felt it was unfair that he was the only

“Caucasian" in the disciplinary hearing. (Id.) On March 24, 2022, McKennon alleges Lt.

Anderson denied McKennon’s request to be taken to use the phone in another area when the phones

in the recreation area were not working. (Id. 40-41.) McKennon made multiple requests to obtain

his trust account statements. (Id. at PageID 41.) McKennon was allowed a shower on March 28,

2022, but was given no recreation time. (Id.) On March 30, 2022, the phones in the outside

recreation area were not working. (Id.)

On April 1, 2022, there were spiders in McKennon’s shower, and he alerted prison staff.

(Id.) McKennon alleges he was bitten by ants in his cell overnight on April 2, 2022, and a food

tray in his cell was “full of ants.” (Id. at PageID 41-42.) On April 2, 2022, McKennon alleges

other inmates were sitting with inmates on suicide watch. (Id. at PageID 42.) On May 1, 2022,

McKennon alleges there were eighteen hours between the time he received his dinner tray and his

breakfast tray the following morning. McKeenon alleges there was no cheese or substitute item

on his breakfast tray. (Id.) McKennon alleges that, on May 2, 2022, there were inmates on suicide

watch with other inmates and inmates being given authority over other inmates. (Id.)

II. SCREENING

A. 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 under Federal Rule of Civil

Procedure 12(b)(6), as stated in Ashcroft v. Iqbal, 556 U.S. 662, 677–79 (2009), in Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555–57 (2007), and in 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. Federal Rule of Civil Procedure 8 provides guidance on this issue. Rule 8 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 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” 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))).

B. REQUIREMENTS TO STATE A CLAIM UNDER § 1983

McKennon sues under 42 U.S.C. § 1983. (ECF Nos. 1 & 4 at PageID 1, 13.) To state a claim

under § 1983, 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).

III. ANALYSIS

A. Claims Against The JMCGH Defendants

The JMCGH is a “not-for-profit … care center … organization” that is “[t]otally self-

supporting, without need for local tax support.” (See https://www.wth.org/locations/jackson-

madison-co-general/.) McKennon’s claims against the JMCGH Defendants are not cognizable

under § 1983. “A § 1983 plaintiff may not sue purely private parties.” Brotherton v. Cleveland,

173 F.3d 552, 567 (6th Cir. 1999). “In order to be subject to suit under § 1983, [a] defendant’s

actions must be fairly attributable to the state.” Collyer v. Darling, 98 F.3d 211, 231-32 (6th Cir.

1997). To be considered to have acted “under color of state law,” an individual: (1) must be a state

or local government official or employee; (2) must have “acted together with or ... obtained

significant aid from state officials” and done so to such a degree that [the individual’s] actions may

properly be characterized as “state action”, see Lugar v. Edmondson Oil Co., 457 U.S. 922, 937

(1982) or (3) must exercise powers traditionally reserved to a state. Jackson v. Metro. Edison Co.,

419 U.S. 345, 352 (1974).

McKennon alleges no facts from which the Court can plausibly infer that the JMCGH

Defendants are state actors for purposes of § 1983. The complaint alleges no facts demonstrating

that: (1) the JMCGH Defendants functioned as arms of the State of Tennessee, Madison County,

the City of Jackson, or any other governmental entity by rendering medical care to McKennon on

February 7, 2022, See Thomas v. Coble, 55 F. App’x 748, 748 (6th Cir. 2003); or that (2) the

JMCGH Defendants’ alleged actions were taken pursuant to an unconstitutional policy or custom

of JMCGH that was the “moving force” behind alleged violation of McKennon’s constitutional

rights. See Braswell v. Corr. Corp. of Am., 419 F. App'x 622, 627 (6th Cir. 2011).

McKennon’s allegations are liberally construed as claims of medical negligence and

medical malpractice against employees of the JMCGH Defedants. (See ECF No. 4 at PageID 14-

15.) McKennon’s claims of medical negligence and medical malpractice were decided by this

Court in Case 1:23-cv-01001-SHM-tmp and were dismissed. (See 1:23-cv-01001-SHM-tmp, ECF

Nos. 8 & 9 at PageID 25-26, 32.) The Consolidated Complaint does not allege any additional facts

about the JMCGH Defendants not addressed in Case 1:23-cv-01001-SHM-tmp.

McKennon’s claims against the JMCGH Defendants under § 1983 are DISMISSED

WITHOUT PREJUDICE for failure to allege facts stating a claim to relief.

B. Claims Against TDOC, CoreCivic and HCCF

McKennon’s claims against TDOC, are construed as claims against the State of Tennessee.

A state is not a person within the meaning of 42 U.S.C. § 1983. Lapides v. Bd. of Regents of the

Univ. Sys. of Ga., 535 U.S. 613, 617 (2002); Will, 491 U.S. at 71. Section 1983 does not authorize

suites against state entities. See Will 491 U.S. at 58, 65. “Will removes persons acting in their

official capacities on behalf of the State from the scope of § 1983 altogether, thereby eliminating

the need for a court to undertake any sort of immunity analysis with respect to such a claim[.]”

Gean v. Hattaway, 330 F.3d 758, 766–67, 2003 WL 21295019 (6th Cir. 2003).

McKennon does not state a claim to relief against TDOC or the State of Tennessee. For

the reasons explained above, McKennon’s § 1983 claims against (a) the TDOC and (b) the State

of Tennessee are DISMISSED WITH PREJUDICE for failure to state a claim to relief.

McKennon sues HCCF and CoreCivic. (See ECF No. 1 at PageID 1.) CoreCivic is the

private corporation that operated the HCCF when McKennon was incarcerated

there. (See https://www.corecivic.com/about (CoreCivic website’s “About Us” page) (last

accessed Jan. 6, 2025).) McKennon fails to state a claim to relief against CoreCivic or HCCF.

“A private corporation that performs the traditional state function of operating a prison acts

under color of state law for purposes of § 1983.” Thomas, 55 F. App’x 748, 748 (citing Street v.

Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996)). The Sixth Circuit applies the standards

for assessing municipal liability to claims against private corporations that operate prisons or

provide medical care to prisoners. Id. at 748-49; Street, 102 F.3d at 817-18. CoreCivic “cannot

be held liable under a theory of respondeat superior.” Braswell, 419 F. App’x 622, 627. To

prevail on a § 1983 claim against CoreCivic, McKennon “must show that a policy or well-settled

custom of the company was the ‘moving force’ behind the alleged deprivation” of McKennon’s

rights. See id.

McKennon does not allege that any actions described in the Consolidated Complaint were

taken pursuant to a policy or custom of CoreCivic that was “the moving force” behind any violation

of McKennon’s constitutional rights. McKennon does not allege that the Defendants implemented

an unconstitutional policy of CoreCivic to deprive McKennon of his constitutional rights. That

distinction is dispositive for the purpose of analyzing the insufficiency of the Consolidated

Complaint’s factual allegations about CoreCivic. See Montgomery v. Conrad, No. 3:21-cv-0820,

2022 WL 509111, at *1 (M.D. Tenn. Feb. 18, 2022) (“The Complaint does not allege that any

policy or custom of the … County caused the violation of Plaintiff’s constitutional rights; indeed,

he complains that his alleged harm was caused by the failure to follow [the alleged

policies]. Generally, ‘[i]f employees aren’t following the policy, then the policy itself isn’t causing

the injury.’ Harvey v. Dart, No. 19-CV-2996, 2021 WL 4264312, at *6 (N.D. Ill. Sept. 20,

2021). Accordingly, the Section 1983 claims against the … [municipal entity defendant] and its

employees in their official capacity cannot be allowed to proceed”); accord Richardson v. Webb,

No. 15-2537-JDT-cgc, 2016 WL 4532378, at *1 (W.D. Tenn. Aug. 29, 2016) (“[T]he third

amended complaint still fails to state a claim against [the municipal entity defendant]. While

[Plaintiff] ostensibly alleges that his injury was due to a policy or custom of these Defendants,

what he actually alleges is that his injuries are due to the Defendants’ failure to follow their

established policies. He does not allege that the policies themselves are

unconstitutional”) (emphasis in original). McKennon does not allege anything about CoreCivic,

much less that one of CoreCivic’s policies or customs was the moving force behind the alleged

violations of McKennon’s constitutional rights. McKennon, therefore, fails to state a

claim under § 1983 against CoreCivic.

To the extent McKennon alleges a claim under § 1983 against the HCCF, the complaint

fails to state a claim to relief. Under § 1983, a jail is not a “person” subject to suit. Marbry v.

Corr. Med. Serv., 238 F.3d 422 (table), No. 99-6706, 2000 WL 1720959, at *2 (6th Cir. Nov. 6,

2000).

For these reasons, McKennon’s claims against CoreCivic are DISMISSED WITHOUT

PREJUDICE for failure to allege facts stating a claim to relief. McKennon’s claims against HCCF

are DISMISSED WITH PREJUDICE for failure to state a claim to relief.

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 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 grants leave to amend the complaint under the

conditions set forth below.

V. CONCLUSION

For the reasons set forth above:

A. The Clerk is DIRECTED to add the State of Tennessee as a defendant;

B. The Court DISMISSES WITH PREJUDICE McKennon’s § 1983 claims against

TDOC, the State of Tennessee, and HCCF for failure to allege facts stating a claim

to relief. See 28 U.S.C. § 1915(e)(2)(B)(ii)-(iii);

C. The Court DISMISSES WITHOUT PREJUDICE McKennon’s § 1983 claims

against JMCGH Defendants, and CoreCivic for failure to allege facts stating a claim

to relief. See 28 U.S.C. § 1915(e)(2)(B)(ii) and 1915A(b)(1);

D. Leave to amend claims dismissed without prejudice in the Consolidated Complaint

is GRANTED. Amended claims must be filed within twenty-one (21) days of the

date of this Order. 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 McKennon’s claims. An amended complaint supersedes the

Consolidated Complaint and must be complete in itself without reference to the

prior pleadings. McKennon or his counsel 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

Consolidated Complaint. Each claim for relief must be stated in a separate count

and must identify each Defendant sued on that count. If McKennon fails to file an

amended complaint within the time specified, the Court will dismiss the

Consolidated Cmplaint with prejudice and enter judgment. For § 1915(g) analysis,

the Court recommends that any such dismissal should be treated as a strike pursuant

to 28 U.S.C. § 1915(g). See Simons v. Washington, 996 F.3d 350, 353 (6th Cir.

2021). The “three strikes” provision of 28 U.S.C. § 1915(g) prevents a court from

granting in forma pauperis status to a prisoner who “has, on 3 or more prior

occasions, while incarcerated . . . brought an action or appeal in a court of the United

States that was dismissed on the grounds that it is frivolous, malicious, or fails to

state a claim upon which relief may be granted.” 28 U.S.C. § 1915(g).

B. McKennon is ORDERED to notify the Court in writing, within twenty-one (21)

days of the date of entry of this Order, of McKennon’s present address. (See

https://foil.app.tn.gov/foil/details.jsp (last accessed Jan. 3, 2025).) If McKennon

fails to abide by this or any other provisions of this Order, the Court may impose

appropriate sanctions, up to and including dismissal of this action, without any

additional notice or hearing by the Court.

IT IS SO ORDERED, this 16th day of January, 2025.

/s/ Samuel H. Mays, Jr.

SAMUEL H. MAYS, JR.

UNITED STATES DISTRICT JUDGE