Comage v. Fisher

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

EASTERN DIVISION

SHAVEON COMAGE, ET AL., )

)

Plaintiffs,

)

) Civ. No. 1:24-cv-01190-SHM-tmp

v.

)

)

TONYA FISHER, ET AL.,

)

Defendants. )

O RDER GRANTING MOTIONS TO AMEND (ECF NOS. 15 & 22),

DIRECTING THE CLERK TO MODIFY THE DOCKET; DENYING

MOTION FOR PRELIMINARY INJUNCTION; DISMISSING THE

CONSOLIDATED COMPLAINT WITHOUT PREJUDICE; AND

GRANTING LEAVE TO AMEND

On September 3, 2024, a pro se civil complaint was filed pursuant to 42 U.S.C. § 1983 by

eight pretrial detainees at the Haywood County Jail (“HCJ”): Shaveon Comage, J.W. Miller, Jr.,

Bishop Owens, Brandon Walker, Justice Clyde Morgan, Deshawn Maleek Renteria, Jeremy Jones,

and Richard West. (ECF No. 1 at PageID 1.) On October 2, 2024, Morgan filed a Motion for

Preliminary Injunction and For Appointment of Counsel (ECF No. 13) and a Motion to Amend

Complaint (ECF No. 15). On December 4, 2024, the Court entered an Order Granting In Part And

Denying In Part Leave to Proceed In Forma Pauperis, Dismissing West, Comage, Owens, Walker,

and Renteria Without Prejudice, Assessing Proportionate Shares of the Filing Fee in Accordance

with the PLRA, and Directing Clerk to Mail Order. (ECF No. 21.) On December 9, 2024, Morgan

filed a second Motion to Amend Complaint. (ECF No. 22.) Miller, Jones, and Morgan

(collectively “Plaintiffs”) are the only remaining Plaintiffs in this action. (See ECF No. 21 at

PageID 66.)

I. MOTION FOR APPOINTMENT OF COUNSEL

Morgan requests a court-appointed attorney to represent a class of pretrial detainees at the

Haywood County Jail.1 (ECF No. 13.) “The court may request an attorney to represent any person

unable to afford counsel,” see 28 U.S.C. § 1915(e)(1), but “[t]here is no constitutional or ...

statutory right to counsel in federal civil cases.” Farmer v. Haas, 990 F.2d 319, 323 (7th Cir.

1993); accord Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir. 2003). The appointment of counsel

in a civil proceeding is a privilege justified only in exceptional circumstances. Lavado v. Keohane,

992 F.2d 601, 605–06 (6th Cir. 1993). Appointment of counsel is not appropriate when a pro se

litigant’s claims are frivolous or when his chances of success are slim. Id.

The decision to appoint counsel for an indigent litigant in a civil case is a matter vested

within the broad discretion of the Court. Childs v. Pellegrin, 822 F.2d 1382, 1384 (6th Cir. 1987);

see Lavado, 992 F.2d at 604¬05. A court generally will appoint counsel only in “exceptional

circumstances.” Id. at 605¬06; accord Willett v. Wells, 469 F. Supp. 748, 751 (E.D. Tenn. 1977).

To determine whether a case meets this standard, a court examines the pleadings and documents

to assess the merits of the claims, the complexity of the case, the pro se litigant’s prior efforts to

retain counsel, and his ability to present the claims. Henry v. City of Detroit Manpower Dep’t,

763 F.2d 757, 760 (6th Cir. 1985); see Kilgo v. Ricks, 983 F.2d 189, 193 (11th Cir. 1993) (“The

key [to determining whether there are exceptional circumstances] is whether the pro se litigant

needs help in presenting the essential merits of his or her position to the court. Where the facts

and issues are simple, he or she usually will not need such help.”).

1 The instant case has not been certified as a class action.

After considering the motion for appointment of counsel, including the type and nature of

the case, its complexity, and the Plaintiffs’ ability to prosecute their claims, counsel is not

necessary at this time to ensure Plaintiffs’ claims are fairly heard. See Mira v. Marshall, 806 F.2d

636 (6th Cir. 1986). The issues in this case are not complex, and the allegations do not demonstrate

exceptional circumstances warranting appointment of counsel at this time. See Kennedy v. Doyle,

37 F. App’x 755, 757 (6th Cir. 2002). From these filings, it appears that Plaintiffs can prosecute

their claims from jail. Like all prisoners proceeding pro se before the Court, Plaintiffs must

familiarize themselves with, and follow, the Court’s Local Rules and the Federal Rules of Civil

Procedure. The Court cannot act as counsel for Plaintiffs. See Pliler v. Ford, 542 U.S. 225, 231

(2004) (District Courts “have no obligation to act as counsel or paralegal” to pro se litigants).

The motion for appointment counsel (ECF No. 13) does not demonstrate exceptional

circumstances warranting appointment of counsel. The motion is DENIED, subject to the right to

re-file an application for counsel if the case proceeds.

II. THE ALLEGATIONS

Morgan’s motions to amend the complaint (ECF Nos. 15 and 22) are GRANTED pursuant

to Fed. R. Civ. P. 15(a)(1) & (2). The allegations in ECF Nos. 1, 15, and 22 (the “Consolidated

Complaint”) are consolidated for purposes of screening.

Plaintiffs allege claims of unconstitutional conditions of confinement and seek relief under

42 U.S.C. § 1983 for: (1) unsanitary conditions and lack of cleaning supplies; (2) denial of outdoor

recreation; (3) inadequate indoor space for exercise; (4) inadequate medical care; (5) a nutritionally

deficient diet; (6) no coffee; (7) being treated differently from convicted inmates; (8) spiders in the

cells; and (9) black mold in the showers. (ECF No. 1 at PageID 9-10; ECF No. 15 at PageID 45.)

Plaintiffs allege denial of the right of access to courts. (ECF No. 1 at PageID 10; see also ECF

No. 15 at PageID 44.)2

Plaintiffs allege that they are not provided a well-rounded diet with “peanut butter being

‘cut’ with vegetable oil, possibly pork hot dogs with both Muslim and Jewish communities

represented.” (ECF No. 1 at PageID 9.)

Morgan alleges that, as a Kabbalistic Jew, he is being refused a kosher diet and required

holiday meals in violation of the Religious Land Use And Institutionalized Persons Act

(“RLUIPA”). (ECF No. 15 at PageID 44.) He asserts that he has irritable bowel syndrome and

has been refused kosher “dietary fixes.” (Id.)

Morgan alleges claims of failure to protect because inmate Mark Snipes assaulted Morgan

and threatened him “with having my head busted.” (Id.) Morgan alleges that he called over the

intercom when the threat was made and that he was told “You’re a killer, deal with it!” (Id.)

Morgan contends that Sgt. Pike and Lt. Tyus have intentionally placed Morgan near Snipes after

Morgan filed grievances and wrote letters to Garrett requesting assault charges against Snipes and

to be separated from him. (ECF No. 22 at PageID 69.)

Morgan alleges that he has been “put at risk of assault or death by inmates” and “locked

down excessively when I retreated from the menace who threatened to ‘kill me and fuck my dead

body’ over me simply checking what the score was on the Oilers game during commercials during

my ‘rec’ time.” (Id.) Morgan alleges that he called over the intercom to report the threat, and

Snipes “started mouthing threats at me and chasing me.” (Id.) Morgan alleges that he ran upstairs

2 Plaintiffs allege that their rights under the Tennessee Constitution, Article 1, Section 9

“are definitely being strained,” but Plaintiffs assert that “this is a separate matter.” (ECF No. 1 at

PageID 11.) Plaintiffs have not alleged a state constitutional claim.

to the safety of his cell and that this has happened before. (Id.) Morgan alleges that Tyus put him

on “rec” with Snipes in retaliation for filing the § 1983 complaint. (Id. at PageID 69.) Morgan

contends that he has “a small bruise under my eye and a fat lip”, that he has been “locked down”

in his cell, and that he was refused time outside the cell after he told officers that Snipes was

holding a razor blade in Snipes’s palm and that he chased and threatened Morgan. (Id. at PageID

70.) Morgan alleges that, on November 29, 2024, Pike closed Morgan’s cell, refused to discuss

the matter saying that Morgan was “not going to be safe here anymore”, and called Morgan “a

snitch rat scared bitch.” (Id.)

Morgan alleges that he received a food tray with “dread/Afro-American type hair” in it and

that when he complained to C.O. Hill, Morgan was “not fed for over 3 hrs after [Hill] spit on my

cell window screaming ‘Don’t play with me and my boy’.” (ECF No. 15 at PageID 44.) Morgan

contends Hill was referring to Snipes as his “boy.” (Id.)

Morgan alleges that he has been diagnosed with Stage II chronic obstructive pulmonary

disorder (“COPD”) and received “Buspar”, which he claims is an anti-anxiety medication. (Id. at

PageID 45.) Morgan contends that Buspar “has done little for my nerves besides lead me to

depression and first time in my life ideations of Felo De Se.” (Id.) He alleges violations of his

First, Fourteenth, and Eighth Amendment rights. (Id. at PageID 45.)

The defendants named in this action are: (1) Captain Tonya Fisher; (2) Haywood County

Sheriff Billy Garrett; (3) Lieutenant First Name Unknown (“FNU”) Tyus; (4) Corrections Officer

FNU Hill; (5) Corrections Officer “Lil Z”; and (6) Sgt. Pike. (ECF No. 1 at PageID 9; ECF No.

15 at PageID 44; ECF No. 22 at PageID 69.) The Clerk is DIRECTED to modify the docket to

add Tyus, Hill, “Lil Z”, and Pike as defendants.

Plaintiffs seek: (1) unspecified declaratory relief; (2) injunctive relief requiring exercise

and recreation area access and a kosher diet that respects Morgan as a Kabbalistic Jew and his

“holiday diet” requirements; and (3) unspecified monetary damages. (ECF No. 1 at PageID 9;

ECF No. 13; ECF No. 22 at PageID 70.)

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 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 Atl. 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. Federal Rule of Civil Procedure 8 provides

guidance on this issue. Although 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))).

IV. ANALYSIS

A. § 1983 Claims

In the Consolidated Complaint, Plaintiffs have alleged constitutional violations pursuant to

42 U.S.C. § 1983, which provides:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the party injured in an action

at law, suit in equity, or other proper proceeding for redress . . . .

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 (2) committed by a defendant acting

under color of state law. Adickes v. S. H. Kress & Co., 398 U.S. 144, 150 (1970).

Plaintiffs do not specify whether they are suing the Defendants in their official or individual

capacities. Although it is preferable that a plaintiff state explicitly whether a defendant is sued in

his or her “individual capacity,” the failure to do so is not fatal if the “course of proceedings”

indicates that the defendant received sufficient notice that the intent was to hold the defendant

personally liable. Moore v. City of Harriman, 272 F.3d 769, 772 (6th Cir. 2001). The Sixth Circuit

has applied a “course of proceedings” test to determine whether § 1983 defendants have received

notice of the plaintiff’s intent to hold a defendant personally liable. Id. at 773; see Rashada v.

Flegel, No. 23-1674, 2024 WL 1367436, at *3 (6th Cir. Apr. 1, 2024); see also Kentucky v.

Graham, 473 U.S. 159, 167 n. 14 (1985) (noting that the “course of proceedings” in unspecified

capacity cases typically will indicate the nature of the liability sought to be imposed). The “course

of proceedings” test considers the nature of the plaintiff’s claims, requests for compensatory or

punitive damages, the nature of any defenses raised in response to the complaint, and whether

subsequent filings put the defendant on notice of the capacity in which he or she is sued. Moore,

272 F.3d at 772 n.1 (citing Biggs v. Meadows, 66 F.3d 56, 61 (4th Cir. 1995)).

Based on the course of proceedings to date, Plaintiffs’ claims against the Defendants are

official capacity claims. The official capacity claims in the Consolidated Complaint are treated as

claims against Haywood 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)).

Haywood County may be held liable only if Plaintiffs’ injuries were sustained pursuant to

an unconstitutional custom or policy. See Monell v. Dep’t of Soc. Servs., 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) (emphasis in original)).

Plaintiffs do not allege that they have been deprived of a right because of a Haywood

County policy or custom. Plaintiffs instead seek relief based on general allegations about

conditions of confinement at the Haywood County Jail. Although civil rights plaintiffs are not

required to plead the facts demonstrating municipal liability with particularity, Leatherman v.

Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168-69 (1993), the

complaint must be sufficient to put the municipality on notice of the plaintiffs’ theory of

liability, see, e.g., Fowler v. Campbell, No. 3:06 CV-P610-H, 2007 WL 1035007, at *2 (W.D. Ky.

Mar. 30, 2007). The allegations of the Consolidated Complaint fail to identify an official policy or

custom of Haywood County which injured Plaintiffs.

Plaintiffs’ § 1983 claims in the Consolidated Complaint against Haywood County or

against any Defendant in his or her official capacity are DISMISSED WITHOUT PREJUDICE

for failure to state a claim to relief.

B. RLUIPA Claim

Under the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 42

U.S.C.A. §§ 2000cc et seq., “No government shall impose a substantial burden on the religious

exercise of a person residing in or confined to an institution, as defined in section 1997 of this title,

even if the burden results from a rule of general applicability, unless the government demonstrates

that imposition of the burden on that person — (1) is in furtherance of a compelling governmental

interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

42 U.S.C. § 2000cc-1(a). To state a claim under RLUIPA, a prisoner must (1) “demonstrate that

he seeks to exercise religion out of a ‘sincerely held religious belief’” and (2) “show that the

government substantially burdened that religious exercise.” See Ackerman v. Washington, 16

F.4th 170, 179 (6th Cir. 2021) (citing Cavin v. Michigan Dep't of Corr., 927 F.3d 455, 458 (6th

Cir. 2019)). The sincerity prong requires courts “‘to determine whether the line drawn’ by the

plaintiff between conduct consistent and inconsistent with her or his religious beliefs ‘reflects an

honest conviction.’” Id. at 180 (quoting New Doe Child #1 v. Cong. of United States, 891 F.3d

578, 586 (6th Cir. 2018) ). This prong is a credibility assessment that asks if the plaintiff’s

religious belief is honest. Id. at 181. The Government substantially burdens an exercise of religion

when it places “substantial pressure on an adherent to modify his behavior and to violate his beliefs

or effectively bars his sincere faith-based conduct.” Id. at 184; see Ali v. Adamson, No. 24-1540,

2025 WL 941291 (6th Cir. Mar. 28, 2025) (“[a] substantial burden exists if the government

“effectively forc[es prisoners] to choose between engaging in conduct that violates sincerely held

religious beliefs and facing a serious consequence”).

Morgan alleges a RLUIPA claim based on the denial of kosher meals and holiday meal

requirements, namely Rosh Hashanah, as a Kabbalistic Jew and Jewish American. (ECF No. 13

at PageID 40; ECF No. 15 at PageID 44.) Morgan says that “even ‘turkey ham’ is not kosher as it

is made with intestines and organ meats.” (Id.)

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. Morgan

makes a conclusory allegation that he was denied kosher and holiday meals in violation of

RLUIPA. Morgan alleges no specific facts about his religious belief other than that he is a

Kabbalistic Jew. He does not allege when he was denied kosher or holiday meals, the nature of

the holiday meal required, or who denied the meals in questions. All denials of kosher or holiday

meals do not violate RLUIPA rights. See Resch v. Rink, 2:21-cv-227, 2022 WL 794849, at *4 (

W. D. Mich. Mar. 16, 2022); see O'Connor v. Leach, No. 1:18-cv-977, 2020 WL 2187814, at *2

(W.D. Mich. May 6, 2020) (temporary removal from Kosher meal programs does not constitute a

substantial burden under RLUIPA); see Berryman v. Granholm, No. 06-CV-11010-DT, 2007 WL

2259334, at *3 (E.D. Mich. Aug. 3, 2007) (temporary removal from kosher meal plan did not

substantially burden the practice of Judaism); see Lewis v. Zon, 920 F. Supp. 2d 379, 385

(W.D.N.Y. 2013) (“It is well settled that periodic or temporary denial of religious meals does not

constitute ‘substantial’ interference with free exercise, and is insufficient to establish a First

Amendment claim.”). Morgan must show that a “governmental entity,” 42 U.S.C. § 2000cc-

5(4)(A)(i), imposed “a substantial burden on” his religious exercise, id. § 2000cc-1(a). See Ali,

2025 WL 941291. Morgan has not identified any substantial burden or any government policy

that imposes one. Morgan’s allegations do not support a claim under RLUIPA. Morgan’s

RLUIPA claim is DISMISSED WITHOUT PREJUDICE for failure to state a claim for relief.

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 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. Rhode Island, 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.

VI. CONCLUSION

For the reasons set forth above:

A. The Consolidated Complaint is DISMISSED WITHOUT PREJUDICE in its

entirety for failure to state a claim on which relief can be granted. See 28 U.S.C.

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

B. Leave to amend is GRANTED. Amended claims must be filed within twenty-one

(21) days after 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 the claims. An amended complaint supersedes the Consolidated Complaint and must be

complete in itself without reference to the prior pleadings. Plaintiffs must each 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. An individual plaintiff’s failure to sign the

amended complaint will be construed as an abandonment of the action, and the individual plaintiff

will be dismissed without prejudice from the case. Any exhibits must be identified by number in

the text of the amended complaint and must be attached to the amended 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 Plaintiffs fail to comply with Rule 8 and the Court’s instructions for pleading

amended claims, the Court will dismiss improperly pled amended claims with prejudice.

C. If Plaintiffs fail to file an amended complaint within the time specified, the Court

will dismiss the case with prejudice and enter judgment. 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).

D. Plaintiffs must promptly notify the Clerk, in writing, of any change of address.

Failure to comply with these requirements, or any other order of the Court, may result in the

dismissal of this case without further notice.

E. Plaintiff Morgan’s Motion for Preliminary Injunction and For Appointment of

Counsel is DENIED, subject to refiling if the case proceeds.

IT IS SO ORDERED this 15th day of August, 2025.

/s/ Samuel H. Mays, Jr.

SAMUEL H. MAYS, JR.

UNITED STATES DISTRICT JUDGE