Shortt v. Gallion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT GREENEVILLE

DEREK N. SHORTT, )

)

Plaintiff, )

)

v. ) No. 2:23-CV-142-KAC-CRW

)

BUTCH GALLION, RONNIE LAWSON, )

SOUTHERN HEALTH PARTNERS, )

INC., DESTINY ARNOLD, and )

MAKAYLA LNU, )

)

Defendants. )

MEMORANDUM AND ORDER

This is a prisoner’s pro se action for violation of 42 U.S.C. § 1983. On August 13, 2024,

the Court entered an order that, in relevant part: (1) directed the Clerk to send Plaintiff another

inmate trust certificate; (2) noted that, in his complaint and letters in which he appeared to seek to

supplement his complaint, “Plaintiff fail[ed] to consistently state which individual(s) he seeks to

hold responsible for the claims he includes in his filings”; (3) gave Plaintiff thirty (30) days to

return necessary in forma pauperis documents and file a single amended complaint listing

(a) “each alleged violation of his constitutional rights” and (b) “the individual(s) responsible for

each alleged violation”; (3) notified Plaintiff that at least some of the claims that he sought to bring

in this action were not properly joined under Federal Rule of Civil Procedure 20(a)(2);

(4) informed Plaintiff that any amended complaint he filed would completely replace his prior

complaint; and (5) notified Plaintiff that if he included claims in his amended complaint that are

not properly joined under Rules 20(a)(2) and 18(a), the Court would presume that he intends to

proceed on his first listed claim and dismiss any misjoined claims without prejudice [Doc. 9 at 1-

4 (emphasis omitted)]. Plaintiff responded to the Order by sending the Court a letter that includes

factual allegations regarding his claims under Section 1983 and his inmate trust account

statement [See Doc. 13].

Considering the Court’s previous Order and direction to Plaintiff, the Court liberally

construes the relevant part of Plaintiff’s letter as his Amended Complaint. For the reasons below,

the Court grants Plaintiff’s motion to proceed in forma pauperis [Doc. 1]. And the Court dismisses

this action because Plaintiff’s Amended Complaint [Doc. 13] fails to state a claim upon which

relief may be granted under Section 1983.

I. MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

Under the Prison Litigation Reform Act (“PLRA”), a prisoner bringing a civil action may

apply for permission to file suit without prepaying the filing fee. See 28 U.S.C. § 1915(a). It

appears from Plaintiff’s motion for leave to proceed in forma pauperis [Doc. 1] and inmate trust

account statement [Doc. 13 at 4-5] that Plaintiff cannot afford to pay the filing fee in one lump

sum. Therefore, the Court GRANTS his motion for leave to proceed in forma pauperis [Doc. 1].

Plaintiff is ASSESSED the civil filing fee of three hundred fifty dollars ($350.00). The

Court DIRECTS the custodian of Plaintiff’s inmate trust account to submit to the Clerk, U.S.

District Court, 220 West Depot Street, Greeneville, Tennessee 37743, as an initial partial payment,

whichever is the greater of: (a) twenty percent (20%) of the average monthly deposits to Plaintiff’s

inmate trust account; or (b) twenty percent (20%) of the average monthly balance in his inmate

trust account for the six-month period preceding the filing of the complaint. 28 U.S.C.

§ 1915(b)(1)(A) and (B). Thereafter, the custodian of Plaintiff’s inmate trust account is directed

to submit twenty percent (20%) of Plaintiff’s preceding monthly income (or income credited to

Plaintiff’s trust account for the preceding month), but only when such monthly income exceeds

ten dollars ($10.00), until the full filing fee of three hundred fifty dollars ($350.00) as authorized

under 28 U.S.C. § 1914(a) has been paid to the Clerk. See 28 U.S.C. § 1915(b)(2).

To ensure compliance with this fee-collection procedure, the Court DIRECTS the Clerk

to mail a copy of this Memorandum and Order to the custodian of inmate accounts at the institution

where Plaintiff is now confined. The Court also DIRECTS the Clerk to furnish a copy of this

Memorandum and Order to the Court’s financial deputy. This Memorandum and Order shall be

placed in Plaintiff’s prison file and follow him if he is transferred to another institution.

II. COMPLAINT SCREENING

A. Standard

Under the PLRA, a district court must screen a prisoner complaint and sua sponte dismiss

any claims that are frivolous or malicious, fail to state a claim for relief, or are against a defendant

who is immune. See, e.g., 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Benson v. O’Brian, 179 F.3d

1014 (6th Cir. 1999). The dismissal standard articulated in Ashcroft v. Iqbal, 556 U.S. 662 (2009)

and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) “governs dismissals for failure state a claim

under [28 U.S.C. §§ 1915(e)(2)(B) and 1915A] because the relevant statutory language tracks the

language in [Federal] Rule [of Civil Procedure] 12(b)(6).” Hill v. Lappin, 630 F.3d 468, 470-71

(6th Cir. 2010). To withstand PLRA review, a complaint “must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678

(quoting Twombly, 550 U.S. at 570). Formulaic and conclusory recitations of the elements of a

claim do not state a plausible claim. Id. at 681. Likewise, an allegation that does not raise a

plaintiff’s right to relief “above a speculative level” fails to state a plausible claim. Twombly, 550

U.S. at 570. The Supreme Court has instructed that a district court should liberally construe pro

se pleadings filed in a civil rights case and hold them to a less stringent standard than “formal

pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972).

B. Background

In the Amended Complaint, Plaintiff first sets forth various allegations about his difficulties

obtaining his in forma pauperis documents from “1ST SGT ARMSTRONG” and Correctional

Officer “Hoe” [Doc. 13 at 1]. Plaintiff also states that a grievance he filed regarding his attempts

to obtain his in forma pauperis documents made “comments, threats, harass[ment], [and]

[illegible] issues” with Corporal Horton, Corporal Shively, Correctional Officer Wolfe, and

Correctional Officer “Hoe” much worse [Id.].

Plaintiff next asserts that unspecified individuals discriminated against him, overly

punished him, and refused him “D-Board” and medical [Id.].

Plaintiff further claims that a Nurse “Gladson” threw away his contact lenses that were

sealed and unopened rather than giving them to Plaintiff or placing them in his property [Id.].

Plaintiff also states that unspecified individuals put him in “troublesome areas” with

cellmates who are also “troublesome” in order to get him in trouble [Id.].

Additionally, Plaintiff asserts that jail administrator Autumn Armstrong stated that they

did not have to comply with the Court’s Order and then “continu[ed] to harass [him] worse” [Id.].

According to Plaintiff, Armstrong then made rude and making threatening remarks to him in her

office [Id. at 2].

Plaintiff further states that, on an unspecified date, Correctional Officer Wolfe threatened

to knock Plaintiff’s teeth down his throat and pushed him [Id.].

Plaintiff further states that an individual named “Emma Destiny Arnold” knew Plaintiff

had experienced multiple surgeries on his heel, had a hard time climbing up and down, and should

avoid ladders, steps, and jumping pursuant to a doctor’s order, but Plaintiff still had to stay on a

top bunk [Id. at 3].

Plaintiff lists the following individuals as people with whom he has had issues: Autumn

Armstrong, Butch Gallion, Corporal Horton, Corporal Shively, Correctional Officer Hoe,

Correctional Officer Wolfe, Nurse Destiny Emma, Sarah Gladson, Sherriff Ronnie Lawson, and

Timekeeper Rachel Anderson [Id.]. As relief, Plaintiff seeks (1) to finish the rest of his sentence

in Greene County or Washington County—not in Hawkins County where he is currently housed—

or (2) that the Court “squash” the remainder of his sentence “due to the discrimination of not ever

receiving any opportunity at trustee,” even though he did not have a behavior problem [Id.].

C. Analysis

A claim for violation of 42 U.S.C. § 1983 requires a plaintiff to establish that a person

acting under color of state law deprived him of a federal right. 42 U.S.C. § 1983.

First, the Amended Complaint seeks as relief only a transfer to a different facility or a

reduction of Plaintiff’s sentence [Id.]. Neither of these requests for relief is cognizable.

Specifically, to the extent that Plaintiff seeks speedier release from imprisonment, he must seek

such relief through a petition for a writ of habeas corpus. See Preiser v. Rodriquez, 411 U.S. 475,

500 (1973) (providing that the “sole federal remedy” for a prisoner seeking immediate or speedier

release is a writ of habeas corpus). Additionally, Plaintiff does not have a constitutional right to

be housed in any particular facility. And the Amended Complaint does not set forth any facts

justifying the Court’s interference into the administrative decision of where to house Plaintiff. See

Beard v. Livesay, 798 F.2d 874, 876 (6th Cir. 1986) (citing Meachum v. Fano, 427 U.S. 215, 224-

25 (1976)); LaFountain v. Harry, 716 F.3d 944, 948 (6th Cir. 2013) (noting that, absent unusual

circumstances, prison officials, rather than judges, should decide where a particular prisoner

should be housed); Glover v. Johnson, 855 F.2d 277, 285-87 (6th Cir. 1988) (instructing that courts

should not “attempt to administer any portion of a . . . correctional system program except in the

most compelling situations”). So, the Court would dismiss the Amended Complaint on that

ground.

Second, none of the allegations in the Amended Complaint allow the Court to plausibly

infer a violation of Plaintiff’s constitutional rights. As set forth above, in its previous Order, the

Court instructed Plaintiff to file a single amended complaint listing “(1) each alleged violation of

his constitutional rights and (2) the individual(s) responsible for each alleged violation,” which

would replace his prior complaint [Doc. 9 at 4]. The Court also notified Plaintiff that (1) his prior

filings “fail[ed] to consistently state which individual(s) he seeks to hold responsible for the claims

he includes in his filings”; (2) Rule 20(a)(2) allows a plaintiff to sue multiple defendants only

where “(A) any right to relief is asserted against them jointly, severally, or in the alternative with

respect to or arising out of the same transaction, occurrence, or series of transactions or

occurrences; and (B) any question of law or fact common to all defendants will arise in the action”;

and (3) if Plaintiff included claims that are not properly joined under Rule 20(a)(2) and Rule 18(a)

in any amended complaint, the Court would presume that he intends to proceed as to his first listed

claim and dismiss any other misjoined claims without prejudice [Id. at 2-4]. Despite these

instructions, the Amended Complaint contains factual allegations that do not identify who Plaintiff

seeks to hold responsible and unrelated claims against different Defendants [See Doc. 13 at 1-3].

The Court now analyzes the Amended Complaint consistent with the instructions and admonitions

that it gave before.

The first allegations in the Amended Complaint relate to Plaintiff’s difficulties obtaining

the necessary in forma pauperis documents [Doc. 13 at 1]. But those allegations appear to be

made to explain Plaintiff’s delay in providing the necessary in forma pauperis documents to the

Court, rather than as a substantive attempt to seek relief under Section 1983. Accordingly, for

Plaintiff’s benefit, the Court does not infer that those allegations are the first claim Plaintiff seeks

to bring in his Amended Complaint.

Instead, and to Plaintiff’s benefit, Plaintiff begins his substantive requests for Section 1983

relief by asserting that a grievance he filed regarding obtaining in forma pauperis documents led

to much worse “comments, threats, harass[ment], [and] [scribbled out word] issues” from Corporal

Horton, Corporal Shively, Correctional Officer Wolfe, and Correctional Officer “Hoe” [Id. at 1].

This appears to be a claim for retaliation. The only other potential claims in the Amended

Complaint that may be properly joined with this retaliation claim under Rule 20(a)(2) are

Plaintiff’s claims based on his allegations that (1) Autumn Armstrong was rude to him and

harassed him, and (2) Correctional Officer Wolfe threatened to knock Plaintiff’s teeth out and

pushed him on an unspecified date. See Fed. R. Civ. P. 20(a)(2); see, e.g., George v. Smith, 507

F.3d 605, 607 (7th Cir. 2007) (“A buckshot complaint that would be rejected if filed by a free

person—say, a suit complaining that A defrauded the plaintiff, B defamed him, C punched him, D

failed to pay a debt, and E infringed his copyright, all in different transactions—should be rejected

if filed by a prisoner). And the Court DISMISSES any other intended claims without prejudice

under Rule 20(a)(2).

Analyzing the three remaining claims in the Amended Complaint, none plausibly alleges a

constitutional violation.

1. Retaliation Claim

Plaintiff’s allegations underlying his retaliation claim against Corporal Horton, Corporal

Shively, Correctional Officer Wolfe, and Correctional Officer “Hoe” are conclusory and therefore

fail to state a claim upon which relief may be granted. A retaliation claim requires a plaintiff to

show three things: (1) he “engaged in protected conduct; (2) an adverse action was taken against

[him] that would deter a person of ordinary firmness from continuing to engage in that conduct;

and (3) there is a causal connection between elements one and two—that is, the adverse action was

motivated at least in part by the plaintiff’s protected conduct.” Thaddeus-X v. Blatter, 175 F.3d

378, 394 (6th Cir. 1999). “[C]onclusory allegations of retaliatory motive ‘unsupported by material

facts will not be sufficient to state . . . a claim under § 1983.’” Harbin-Bey v. Rutter, 420 F.3d

571, 580 (6th Cir. 2005) (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1538–39 (6th Cir. 1987)).

Plaintiff does not set forth any facts from which the Court can plausibly infer that Corporal

Horton, Corporal Shively, Correctional Officer Wolfe, and Correctional Officer “Hoe” knew of

any grievance Plaintiff filed. The Amended Complaint alleges that Correctional Officer “Hoe”

knew that Plaintiff had requested in forma pauperis documents, but Plaintiff does not provide facts

from which the Court can plausibly infer what, if any, action Correctional Officer “Hoe” took

towards Plaintiff because of the request. Instead, Plaintiff makes only conclusory allegations that

“comments, threats, harass[ment], [and] [illegible] issues” from Corporal Horton, Corporal

Shively, Correctional Officer Wolfe, and Correctional Officer “Hoe” became worse after he filed

a grievance [See Doc. 13 at 1]. The Amended Complaint does not provide any specific facts or

examples regarding how any of the alleged actors treated Plaintiff. As such, these allegations do

not allow the Court to plausibly infer that Correctional Officer “Hoe” treated Plaintiff in a way

that would deter a reasonably firm prisoner from continuing to engage in protected conduct due to

Plaintiff requesting his in forma pauperis documents, and they are therefore not sufficient to state

a plausible Section 1983 retaliation claim. Thaddeus-X, 175 F.3d at 394; Frazier v. Michigan, 41

F. App’x 762, 764 (6th Cir. 2002) (providing that “a complaint must allege that the defendants

were personally involved in the alleged deprivation of federal rights” to state a claim); Iqbal, 556

U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.”); Quisenberry v. Valentine, No. 3:23-CV-P393-JHM, 2024

WL 1261911, at *2, 5 (W.D. Ky. Mar. 25, 2024) (holding that the plaintiff’s assertion that a

defendant housed a dangerous inmate near him “because I filed grievance” was conclusory and

therefore did not state a plausible Section 1983 retaliation claim).

2. Autumn Armstrong Claim

The Amended Complaint likewise lacks facts sufficient for the Court to plausibly infer that

Autumn Armstrong’s alleged actions toward Plaintiff rise to the level of a constitutional violation

[See Doc. 13 at 2]. Without more, generally, remarks that are rude and may be viewed as

threatening do not rise to a Constitutional violation. See Ivey v. Wilson, 832 F.2d 950, 955 (6th

Cir. 1987) (finding verbal abuse and harassment do not constitute “punishment” in the

constitutional sense or otherwise raise a constitutional issue). The Amended Complaint does not

plead more here [See Doc. 13 at 2]. Therefore, it fails to state a claim.

3. Correctional Officer Wolfe Claim

The only remaining allegations properly before the Court are the allegations that

Correctional Officer Wolfe threatened to knock Plaintiff’s teeth out and pushed him on an

unspecified date. The Court liberally construes these allegations as an attempt to state a claim for

violation of the Eighth Amendment.1 However, here again, without more, threats or verbal abuse

are generally not sufficient alone to state a claim under the Eighth Amendment. See Mahaffey v.

Bureau of Prisons, No. 5:24-CV-038-KKC, 2024 WL 4794494, at *2 (E.D. Ky. Nov. 14, 2024)

(noting that “mere threats or verbal abuse are insufficient to state a claim under the Eighth

Amendment” (citing Pasley v. Conerly, 345 F. App’x 981, 984 (6th Cir. 2009)). The Amended

1 Because Plaintiff alleges that he is serving a sentence, and hence convicted, the Court

addresses these allegations under the Eighth Amendment. See Lawler as next friend of Lawler v.

Hardeman Cnty., Tenn., 93 F.4th 919, 926 (6th Cir. 2024).

Complaint provides no more than [See Doc. 13]. And these allegations are not sufficient to state

a claim. But the Court will DISMISS each of the claims at issue without prejudice in the event

that Plaintiff could assert more facts at a later date.

III. CONCLUSION

As set forth above:

1. The Court GRANTED Plaintiff’s motion for leave to proceed in forma pauperis

[Doc. 1], ASSESSED the civil filing fee of $350.00, DIRECTED the custodian of

Plaintiff’s inmate trust accounts to submit the filing fee to the Clerk in the manner

set forth above, and DIRECTED the Clerk to provide a copy of this Memorandum

and Order to the custodian of inmate accounts at the institution where Plaintiff is

now confined and the Court’s financial deputy; and

2. The Court DISMISSED all of Plaintiff’s claims without prejudice.

Further, the Court CERTIFIES that any appeal from this action would not be taken in

good faith and would be totally frivolous. See Fed. R. App. P. 24. Therefore, should Plaintiff file

a notice of appeal, he is DENIED leave to appeal in forma pauperis. See 28 U.S.C. § 1915(a)(3);

Fed. R. App. P. 24. An appropriate judgment shall enter.

SO ORDERED.

ENTER:

/s/ Katherine A. Crytzer

KATHERINE A. CRYTZER

United States District Judge