Hodges v. Strada

IN THE UNITED STATES MIDDLE DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

HENRY EUGENE HODGES, )

)

Plaintiff, )

) Case No. 3:23-cv-00952

v. ) JURY DEMAND

)

) JUDGE RICHARDSON

FRANK STRADA, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Henry Hodges (“Plaintiff”), an inmate at Riverbend Maximum Security

Institution (“RMSI”), filed a complaint pro se,1 alleging three claims under 42 U.S.C. § 1983—as

he words it— “due process violation,” “medical malpractice,” and “cruel and unusual punishment

under the death penalty.” The Complaint (Doc. No. 1) is before the Court for an initial review

pursuant to the Prison Litigation Reform Act (“PLRA”), under 28 U.S.C. §§ 1915(e)(2) and

1915A.

INITIAL SCREENING STANDARD

Under the PLRA, the Court must conduct an initial review of any civil complaint filed in

forma pauperis, 28 U.S.C. § 1915(e)(2), or brought by a prisoner-plaintiff against government

entities or officials, 28 U.S.C. § 1915A, or challenging the conditions of confinement, 42 U.S.C.

§ 1997e(c). Upon conducting this review, the Court must dismiss the complaint, or any portion

thereof, that fails to state a claim upon which relief can be granted, is frivolous, or seeks monetary

relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2) and 1915A; 42

1 Plaintiff’s application to proceed in forma pauperis was granted on December 13, 2023. (Doc. No. 11).

U.S.C. § 1997e(c). The Sixth Circuit has confirmed that the dismissal standard articulated by the

Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550

U.S. 544 (2007), “governs dismissals for failure to state a claim under those statutes because the

relevant statutory language tracks the language in Rule 12(b)(6).” Hill v. Lappin, 630 F.3d 468,

470–71 (6th Cir. 2010). The Court outlines this standard in the following three paragraphs.

For purposes of a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the Court must take all

the factual allegations in a complaint as true. Iqbal, 556 U.S. at 678. To survive a motion to dismiss,

a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face. Id. A claim has facial plausibility when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged. Id. Threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice. Id. When there are well-pleaded factual allegations, a court should

assume their veracity and then determine whether they plausibly give rise to an entitlement to

relief. Id. at 1950. A legal conclusion, including one couched as a factual allegation, need not be

accepted as true on a motion to dismiss, nor are mere recitations of the elements of a cause of

action sufficient. Id.; Fritz v. Charter Tp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010), cited in

Abriq v. Hall, 295 F. Supp. 3d 874, 877 (M.D. Tenn. 2018). Moreover, factual allegations that are

merely consistent with the defendant's liability do not satisfy the claimant's burden, as mere

consistency does not establish plausibility of entitlement to relief even if it supports the possibility

of relief. Iqbal, 556 U.S. at 678.

In determining whether a complaint is sufficient under the standards of Iqbal and Twombly,

it may be appropriate to “begin [the] analysis by identifying the allegations in the complaint that

are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 680. This can be crucial, as no such

allegations count toward the plaintiff’s goal of reaching plausibility of relief. To reiterate, such

allegations include “bare assertions,” formulaic recitation of the elements, and “conclusory” or

“bold” allegations. Id. at 681. The question is whether the remaining allegations—factual

allegations, i.e., allegations of factual matter—plausibly suggest an entitlement to relief. Id. If not,

the pleading fails to meet the standard of Federal Rule of Civil Procedure 8 and thus must be

dismissed pursuant to Rule 12(b)(6). Id. at 683.

As a general rule, matters outside the pleadings may not be considered in ruling on a motion

to dismiss under Rule 12(b)(6) unless the motion is converted to one for summary judgment under

Rule 56. Fed. R. Civ. P. 12(d). When a document is referred to in the pleadings and is integral to

the claims, it may be considered without converting a motion to dismiss into one for summary

judgment. Doe v. Ohio State Univ., 219 F. Supp. 3d 645, 652–53 (S.D. Ohio 2016); Blanch v. Trans

Union, LLC, 333 F. Supp. 3d 789, 791–92 (M.D. Tenn. 2018).

“A document filed pro se is to be liberally construed, and a pro se complaint, however

inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by

lawyers.” (internal quotation marks and citation omitted). Erickson v. Pardus, 551 U.S. 89, 94

(2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Cf. Fed. R. Civ. P. 8(e) (“All pleadings

shall be so construed as to do substantial justice”).

Pro se status, however, does not exempt a plaintiff from compliance with relevant rules of

procedural and substantive law. See Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989) (“Neither

[the Supreme] Court nor other courts...have been willing to abrogate basic pleading essentials in

pro se suits.”); see also Brown v. Matauszak, 415 F. App’x 608, 612-613 (6th Cir. Jan. 31, 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”)

(citation and internal quotation marks omitted; alteration in original).

BACKGROUND2

Plaintiff is a severely mentally unwell inmate at RMSI, who upon conviction of a heinous

murder in 1990 has sat on death row, pending execution, for thirty-three (33) years. His history of

and proclivity for violent acts are well-known, as Plaintiff has spent much of his time incarcerated

in some form of punitive segregation or solitary confinement due to prior infractions and violence

inflicted on prison staff and other inmates. (Id. at 25, 66) (stating that Plaintiff has a “very violent

history,” severely injuring other inmates, has threatened to kill staff, and has a long history of

smearing fecal matter in his cell).

On October 5, 2022, upon learning that he was ineligible to receive mail packages for a

period of time, Plaintiff started smearing his feces inside his cell. (Id. at 29). As a result, TDOC

prison staff stopped bringing food to Plaintiff for two consecutive days. (Id. at 29, 66). Two days

later, to begin cleaning Plaintiff’s cell, TDOC prison staff moved Plaintiff from his cell (identified

as D-102) to D-101, which Plaintiff describes as a “high max cell” designated for violent inmates.

(Id. at 29).

The transfer to a “high max call” seemed to be particularly triggering for Plaintiff, who

already had spent approximately twelve (12) years in similar punitive confinement, because once

placed in D-101, Plaintiff smashed a sprinkler and thereby flooded the cell. (Id. at 29, 66). Plaintiff

2 The facts herein are taken from the Complaint, and for purposes of an initial screening, are accepted as

true, except to the extent that they are qualified herein (as, for example, by “Plaintiff alleges”) to denote

that they are not being taken as true but instead are set forth merely to make clear what a party claims to be

true. Throughout this opinion, the Court forgoes any such qualifiers for any fact that it is accepting as true,

stating those facts without qualification even though it is aware that any such (alleged) fact ultimately might

not prove to be true. The Court emphasizes that whenever it states (alleged) facts without qualifiers,

consistent with the above-state protocols, it has not found the alleged facts to be the actual facts.

then found within reach outside the cell a loose metal shard from a drain, which he used to first

break a double-paned window—completely shattering the interior pane and cracking the exterior

pane—and then cut his own wrists and the head of his penis. (Id.). TDOC prison staff, including

Defendant Frank Heroux, responded to this incident. Plaintiff, showing the cuts on his wrists, told

Defendant Heroux that he wanted to be placed on suicide watch. (Id.). Instead, Defendant Heroux

took Plaintiff to the infirmary. (Id.).

Once at the infirmary, Defendant Heroux instructed Defendant Karen Milliner, who had

observed Plaintiff’s cell extraction and cracked window, not to place Plaintiff on suicide watch in

the infirmary, as Plaintiff was only “trying to manipulate” her.3 (Id. at 29, 63). Plaintiff refused

medical treatment, and was later returned to his cell, D-101—the same cell in which Plaintiff had

self-harmed and that has a completely shattered interior windowpane—where he was stripped

naked without a “suicide smock.” (Id. at 29-30). Plaintiff also asserts that having searched the cell

for razor blades in the past, Defendant Heroux knew there was a possibility that Plaintiff’s cell

contained razor blades. (Id. at 63).

Defendant Heroux informed Plaintiff that he would be on suicide watch while inside his

cell. (Id. at 29, 63). But despite supposedly being on suicide watch, Plaintiff had enough time to

retrieve razor blades, hidden in his cell, and cut off his penis entirely, which he states, “took a little

while” and caused profuse blood loss. (Id. at 30). Plaintiff was taken to Vanderbilt University

Medical Center, where hospital staff attempted to reattach Plaintiff’s severed genitalia; however,

at some point after reattachment, necrosis set in, and Plaintiff was told he would lose his penis.

(Id. at 30, 63).

3 Plaintiff in a different portion of his Complaint states that he directly asked Defendant Milliner to place

him under suicide watch, but that Defendant Milliner ignored his request, “turn[ing] [his] mental health

treatment over to a prison guard ([Defendant] Frank Heroux).” (Doc. No. 1, at 63).

Confined to a wheelchair, Plaintiff was returned to the prison on October 21, 2022,4 and

placed in the “suicide watch wing” of the infirmary. (Id. at 30). Per order of Defendant Kent

Colburn, a psychologist, who had not observed or spoken to Plaintiff, Plaintiff was moved from

his wheelchair to a plastic mattress on top of a “cement slab,” with ceiling lights shining directly

above him and was placed in “four point restraints,” i.e., restraints around his wrists and ankles.

(Id. at 30, 63). Still in restraints, Plaintiff defecated himself and remained in his own feces for three

(3) hours. (Id. at 30). Plaintiff also—still under restraint—managed to pull out his catheter, at

which point he was placed in a “six point restraint” (i.e., having restraints around wrists, ankles,

and biceps) for several days. (Id.). When he was finally released from his restraints, Plaintiff had

difficulty moving his arms and walking. (Id.)

On November 22, 2022, Plaintiff filed a grievance that detailed the above-described cell

transfer, self-injury, and post-hospitalization restraint. (Id. at 28). TDOC supervisor Ernest Lewis

denied this grievance as “inappropriate” because Plaintiff filed it more than seven (7) days after

the incident occurred and alleged more than one complaint. (Id. at 32). Plaintiff appealed this

determination, and his appeal was denied by the presiding assistant commissioner of prisons with

TDOC, who concurred with the warden’s determination. (Id. at 27).

On April 3, 2023, Plaintiff was moved out of D-pod due to a prison lockdown. (Id. at 23).

Again, Plaintiff took issue with his being transferred to what he perceived to be “High Max Cell,”

and filed a grievance on April 5, 2023, which described his removal to “High Max Cell” and

claimed that it was without any justification. (Id. at 24). This grievance was denied by Defendant

Dennis Davis, a prison unit manager, who explained in his denial that cell changes are done for

4 Plaintiff provides that he returned on November 21, 2022, but the Court believes this to be a clerical error,

as Plaintiff also provides in his Complaint that he was only hospitalized for two (2) weeks. (Doc. No. 1, at

63).

the safety and security of the facility or for population management and that Plaintiff’s placement

was warranted because Plaintiff had a very violent history, both prior to and during his

incarceration (including injuring other inmates and threating prison staff). (Id. at 25). This

grievance denial was upheld by the warden, Defendant Tony Mays. (Id. at 26). Plaintiff appealed

the denial of his grievance, but his appeal was denied by the deputy assistant commissioner of

prison operations with TDOC, Defendant Kevin Genovese. (Id. at 22).

ANALYSIS

Plaintiff brings suit under 42 U.S.C. § 1983, against Defendants5 to vindicate alleged

violations of his federal constitutional rights. Specifically, Plaintiff alleges (1) a “due process

violation” in relation to events on April 3, 2023; (2) “medical malpractice” in relation to his self-

mutilation and post-hospitalization confinement conditions; and (3) a claim for cruel and unusual

punishment, in violation of the Eighth Amendment, based on his not having a scheduled execution

date. (Doc. No. 1).

Section 1983 confers a private federal right of action against any person who, acting under

color of state law, deprives an individual of any right, privilege or immunity secured by the

Constitution or federal laws. Wurzelbacher v. Jones–Kelley, 675 F.3d 580, 583 (6th Cir. 2012).

Thus, to state a § 1983 claim, a plaintiff must allege two elements: (1) a deprivation of rights

secured by the Constitution and laws of the United States, and (2) that “the deprivation was caused

5 Plaintiff has made clear that each of the individuals who are Defendants is being sued in his or her

individual capacity only. (Doc. No. 1 at 2-3, 6). Plaintiff purports to sue Centurion of Tennessee likewise

in its individual capacity, but an entity defendant like Centurion of Tennessee does not have an individual

capacity. A claim against Centurion of Tennessee is neither an individual-capacity claim nor an official-

capacity claim, but rather a so-called Monell claim, i.e., a claim under Monell v. Dep’t of Soc. Servs., 436

U.S. 658 (1978). In any event, as discussed below, it is clear that Plaintiff has stated no claim against

Centurion of Tennessee.

by a person acting under color of state law.” Tahfs v. Proctor, 316 F. 3d 584, 590 (6th Cir. 2003)

(citations omitted); 42 U.S.C. § 1983.

In considering Plaintiff’s claims, the Court keeps in mind some basic principles that are

applicable here:

When an individual violates a criminal law and receives a sentence, he

usually cannot be heard to complain about the deprivations of liberty that result.

Although “prisoners do not shed all constitutional rights at the prison gate, ... lawful

incarceration brings about the necessary withdrawal or limitation of many

privileges and rights, a retraction justified by the considerations underlying our

penal system.”

Ortega v. U.S. Immigr. & Customs Enf’t, 737 F.3d 435, 438–39 (6th Cir. 2013) (quoting Sandin v.

Conner, 515 U.S. 472, 485. (1995).

At the outset, the Court concludes that even construing his allegations in his favor, Plaintiff

has failed to plausibly suggest the liability of Defendant Frank Strada or Centurion of Tennessee

of any count. These Defendants appear only in the list of parties to the Complaint (see Doc. No. 1,

at 14) and are not otherwise referred to in any factual allegations or claims in this action. Such a

Complaint, even if given the most liberal construction imaginable, is patently inadequate to state

a claim against these Defendants. See Green v. Correct Care Sols., No. 3:14-cv-01070, 2014 WL

1806997, at *4 (M.D. Tenn. May 7, 2014) (citing cases) (“It is a basic pleading essential that a

plaintiff attribute factual allegations to particular defendants. Where a person is named as a

defendant without an allegation of specific conduct, the complaint is subject to dismissal as to that

defendant, even under the liberal construction afforded to pro se complaints.”); see also Murphy

v. Grenier, 406 F. App’x 972, 974 (6th Cir. 2011) (“Personal involvement is necessary to establish

section 1983 liability.”) (citing Gibson v. Matthews, 926 F.2d 532, 535 (6th Cir. 1991)). So these

Defendants will be dismissed from this action from the outset.

A. First claim: “Due Process Violation”

Plaintiff’s first claim, brought against Defendants Mayes, Genovese, and Dennis, relates to

the above-described cell transfer occurring on or around April 3, 2023, where Plaintiff was moved

to a “High Max Cell,” or punitive segregation. (Doc. No. 1, at 24). Plaintiff alleges that this move

violated “due process” because he was “put [ ] in a punitive segregation cell without justification

or a disciplinary report or any way to appeal it.” (Id. at 60). But within his Complaint, Plaintiff

included grievance paperwork evidencing that Plaintiff was aware of his right to file a grievance

over this cell transfer and that he exercised that right. (Id. at 22-25). It also appears Plaintiff’s move

was not “without justification”—to the extent that “justification” for doing something refers to

having express reasons for doing something—as Defendant Dennis, in response to Plaintiff’s

grievance, recorded several reasons for Plaintiff’s placement. (Id. at 25).

Moreover, an inmate does not have a right to placement in more desirable or favorable cells

within the inmate’s prison. See Wilson v. Williams, 961 F.3d 829, 839 (6th Cir. 2020) (quoting

Farmer v. Brennan, 511 U.S. 825, 832 (1994)) (quoting Rhodes v. Chapman, 452 U.S. 337, 349

(1981)) (“The Constitution ‘does not mandate comfortable prisons[.]’” (internal quotations

omitted)). To the extent that Plaintiff complains of being placed in isolation, it is worth noting that

“segregation is the sort of confinement that inmates should reasonably anticipate receiving at some

point in their incarceration.” Hewitt v. Helms, 459 U.S. 460, 468 (1983), superseded by statute on

other grounds. Plaintiff does not have a constitutional right to avoid segregation. Sango v. Huss,

No. 1:14-CV-2, 2014 WL 2616592, at *8 (W.D. Mich. June 12, 2014), aff’d (Mar. 13, 2015) (citing

Hewitt, 459 U.S. at 477 n.9). To the extent that Plaintiff complains about the fact that he was

moved, or more specifically moved to a cell with fewer privileges, the Court notes that “when

prison authorities move an inmate from one cell to another, even to a cell with far fewer privileges,

[an] increased deprivation generally does not implicate a protected liberty interest under the Due

Process Clause.” Ortega, 737 F.3d at 439. “The Constitution does not prevent a prison transfer to

a more restrictive setting unless the change would work an “atypical and significant hardship on

the inmate in relation to the ordinary incidents of prison life”—in which case the inmate is entitled

to some “process,” in an amount that “will vary from setting to setting.” Id.

True, he does have “a procedural right to meaningful review of the necessity for such

confinement, if that confinement imposes an ‘an atypical and significant hardship’ on him ‘in

relation to the ordinary incidents of prison life.’” Sango v. Huss, 2014 WL 2616592, at *8 (quoting

Sandin, 515 U.S. at 486–87 (1995)). But even if his confinement did impose such a hardship,

Plaintiff’s alleged facts (even when construed in his favor as required) do not plausibly suggest a

violation of his procedural right to meaningful review. It stands to reason under Sandin that the

amount of process is adequate if it involves “meaningful review” of the transfer decision. As noted,

above, the Complaint itself does not plausibly suggest that Plaintiff was denied meaningful review

of the decision to transfer him to a “High Max Cell”; to the contrary, it suggests the opposite.

Finally, to the extent that Plaintiff complains about discomfort, he does not satisfy the

requirements for a claim of cruel and unusual punishment. “Temporary inconveniences and

discomforts incident thereto cannot be regarded as a basis for judicial relief.” Ford v. Bd. of

Managers of New Jersey State Prison, 407 F.2d 937, 940 (3d Cir. 1969). Plaintiff must allege a

substantial risk of serious harm, Farmer, 511 U.S. at 837, or must produce evidence of how the

unsanitary “condition jeopardized or potentially jeopardized his health or caused it to be unfit for

habitation.” Tinsley v. Vaughn, No. 90–0113, 1991 WL 95323, at *6 (E.D. Pa. May 29, 1991).

True, the Eighth Amendment imposes duties on prison officials to provide humane living

conditions within the prison. Hudson v. Palmer, 468 U.S. 517, 526–7 (1984). However:

[E]xtreme deprivations are required to make out a conditions-of-confinement

claim. Because routine discomfort is part of the penalty that criminal offenders pay

for their offenses against society, only those deprivations denying ‘the minimal

civilized measure of life’s necessities’ are sufficiently grave to form the basis of an

Eighth Amendment violation.

Hudson v. McMillan, 503 U.S. 1, 9 (1992).

Thus, as Plaintiff’s cell transfer underlying his first claim evidences only Plaintiff’s

disapproval of the cell chosen—but not of any substantial risk of serious harm or extreme

deprivation—and Plaintiff has not alleged any facts suggesting that he was denied “meaningful

review” of his transfer, the Court finds that Plaintiff’s first claim fails to state a Section 1983 claim

upon which relief can be granted. The Defendants named in this claim (Defendants Mayes,

Genovese, and Dennis) are not named in any other claim, and so those Defendants are dismissed

from this action.

B. Second claim: “Medical Practice,” actually comprising three Eighth Amendment

claims

Plaintiff’s second claim relates to the above-described gruesome incident that occurred in

October 2022, where Plaintiff attempted suicide and fully cut off his genitalia, requiring his

hospitalization for several days. After this hospitalization, Plaintiff returned to RMSI under

extraordinary, and excessive, measures to keep him restrained. While Plaintiff titles this claim

“medical malpractice,”6 the Court must construe all pleadings in a way to do substantial justice.

6 If Plaintiff truly intended to raise a medical malpractice claim, the Court would note that a medical

malpractice allegation is a claim under state law and does not give rise to relief under Section 1983. See

Ross v. Rutherford Cnty. Det. Ctr., No. 3:23-CV-00398, 2023 WL 4189655, at *3 (M.D. Tenn. June 26,

2023) (Richardson, J.) (citing Rankins v. Phillips, No. 21-2758-SHM-tmp, 2023 WL 2918781, at *2 (W.D.

Tenn. Apr. 12, 2023) (citing Dotson v. Corr. Med. Serv., 584 F. Supp. 2d 1063, 1068-69 (W.D. Tenn. 2008))).

Under 28 U.S.C. § 1367(c)(3), a district court may decline to exercise jurisdiction over supplemental claims

arising under state law if the Court has dismissed all the claims over which it has original jurisdiction. See,

e.g., Moon v. Harrison Piping Supply, 465 F.3d 719, 728 (6th Cir. 2006) (where a federal court dismisses

the underlying federal law claims, the court “should not ordinarily reach the plaintiff’s state-law claims”)

(quoting Landefeld v. Marion Gen. Hosp., Inc., 994 F.2d 1178, 1182 (6th Cir. 1993)); Brooks v. Rothe, 577

See Fed. R. Civ. P. 8(e). Here, construing the Complaint in Plaintiff’s favor, in the Court’s view,

what Plaintiff really sets forth are three claims under the Eighth Amendment: (1) substantial

deprivation of food, (2) deliberate indifference to Plaintiff’s serious medical need(s) (against

Defendants Heroux, Milliner, and Colburn), and (3) conditions of confinement. The Court will

address in turn each of these three claims (which below the Court will call “subclaims”).

Plaintiff’s first subclaim is that, as a result of smearing his feces in his prison cell, TDOC

staff7 withheld food from Plaintiff for two consecutive days. (Doc. No. 1, at 29, 66). It has been

stated that “the Constitution requires[,] that prisoners be fed by their custodians in a manner that

comports with [a contemporary standard of decency], and in a manner that is nutritionally

sufficient to sustain normal human health.” Caldwell v. George, No. 1:14-0019, 2015 WL 5838622,

at *4 (M.D. Tenn. Oct. 7, 2015), report and recommendation adopted, No. 1-14-00019, 2015 WL

6755385 (M.D. Tenn. Nov. 4, 2015) (citing Cunningham v. Jones, 567 F.2d 653, 660 (6th Cir.

1977)) (internal citation omitted). It likewise has been stated that “[d]epriving an inmate of food

or serving him contaminated food states a claim for a violation of the Eighth Amendment.” Prince

v. Brown, No. 1:13-0057, 2013 WL 3283479, at *2 (M.D. Tenn. June 27, 2013) (quoting Thompson

v. Mich. Dep’t of Corrs., No. 99–2076, 2000 WL 1597844, at *2 (6th Cir. Oct. 20, 2000).

But these statements are somewhat inexact because they omit any reference to the fact that

such a claim requires not only a substantial deprivation of food for the plaintiff, but also a

sufficiently culpable mental state on the part of the defendant. True, “[a] substantial deprivation of

F.3d 701, 709 (6th Cir. 2009) (“ ‘If federal claims are dismissed before trial, the state claims generally

should be dismissed as well.’ ”) (quoting Wojnicz v. Davis, 80 F. App’x 382, 384-85 (6th Cir. 2003)). To the

extent the Complaint can be construed to allege independent state law claims for medical malpractice, the

Court declines to exercise supplemental jurisdiction over those claims because Plaintiffs other two claims

must be dismissed, as discussed in this order. See 28 U.S.C. § 1367(c)(3).

7 Plaintiff did not identify any TDOC staff member allegedly involved in this incident, let alone name any

such person as a defendant as to this subclaim.

food may be sufficiently serious to state a conditions-of-confinement claim under the Eighth

Amendment.” Thompson v. Gibson, 289 F.3d 1218, 1222 (10th Cir. 2002). But the key word here

is “may’”; what it suggests (correctly) is an alleged substantial deprivation of food does not always

suffice to state a conditions-of-confinement claim. A conditions-of-confinement claim must satisfy

both an objective prong and a subjective prong. Hasenmeier-McCarthy v. Rose, 986 F. Supp. 464,

469 (S.D. Ohio 1998). The objective element requires that the alleged deprivation be “sufficiently

serious,” and the subjective element is that the prison official had a sufficiently culpable state of

mind, i.e. one of “deliberate indifference” to inmate health or safety. Farmer, 511 U.S. at 834

(quoting Wilson, 501 U.S., at 302–303; see also Helling v. McKinney, 509 U.S. 25, 34–35 (1993).

Here, Plaintiff was deprived of food for two consecutive days. Deprivation of food over

multiple days—which is more concerning, than the typical prisoner complaint of prison staff

serving cold or nutritionally inadequate meals—supports a substantial deprivation of food, and the

Court finds the objective component is met here.8

But the problem is with the subjective component. The alleged facts do not plausibly

suggest deliberate indifference by employees or officials at the prison.9 In fact, they do not

plausibly suggest any deliberate indifference by anyone in particular. Relatedly, Plaintiff does not

make all clear who it is that is allegedly liable on this subclaim. As such, Plaintiff’s first subclaim

must fail, both because Plaintiff has not alleged facts that plausibly suggest the subjective

component of this subclaim as required, and alternatively (and even more fundamentally) the claim

8 The Court finds it persuasive that in one case, the Tenth Circuit found it improper to dismiss a claim from

a prisoner complaining of deprivation of food for a similar period without further factual development.

Dearman v. Woodson, 429 F.2d 1288, 1290 (10th Cir. 1970).

9 Rather, the facts actually support the existence of a penological purpose in withholding Plaintiff’s food

(i.e., to prevent Plaintiff from vandalizing the prison Per Plaintiff, “I had been smearing feces on the walls

and the [TDOC] staff thought if I didn’t eat I couldn’t deficate [sic].” (Doc. No. 1 at 51, ¶ 10).

cannot reasonably be construed as being brought against (and providing fair notice of alleged

liability to) any Defendant.

In his second subclaim, Plaintiff asserts a claim, brought against Defendants Heroux and

Milliner, for deliberate indifference to a serious medical need,10 being Plaintiff’s imminent risk of

suicide. (Doc. No. 1, at 29-30). A Section 1983 claim premised upon allegations of deliberate

indifference to a convicted prisoner’s serious medical need “constitutes the unnecessary and

wanton infliction of pain” and violates the Eighth Amendment. Ruiz v. Martin, 72 F. App’x 271,

275 (6th Cir. 2003) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)).

A “serious medical need” is “one that has been diagnosed by a physician as mandating

treatment or one that is so obvious that even a lay person would easily recognize the necessity for

a doctor’s attention.” Villegas v. Metro. Gov’t of Nashville, 709 F.3d 563, 570 (6th Cir. 2013).

Protection from a known risk of suicide is a serious medical need. See Comstock v. McCrary, 273

F.3d 693, 702 (6th Cir. 2001) (holding that a prisoner “had a clearly established constitutional right

to be protected from the known risks of suicide and to have his serious medical needs attended

to”) (quoting Yellow Horse v. Pennington Cnty., 225 F.3d 923, 927 (8th Cir. 2000))).

Like a conditions-of-confinement claim, a deliberate-indifference claim against a prison

official has both an objective component and a subjective component. Farmer, 511 U.S. at 834.

The objective component requires a plaintiff to show the existence of a “sufficiently serious”

medical need. Id. (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). In the context of risk of

suicide, an inmate-plaintiff meets the objective prong of the Eighth Amendment analysis by

showing that the he or she showed suicidal tendencies during the period of detention or that he or

10 As courts sometimes do, the Court herein at times refers to this claim for short as a claim of “deliberate

indifference.” But it is important to keep in mind that this shorthand terminology actually refers only the

subjective component of a claim of deliberate indifference to a serious medical need, while omitting any

reference to the objective component of such a claim (i.e., a serious medical need).

she “posed a strong likelihood of another suicide attempt.” Troutman v. Louisville Metro Dep’t of

Corr., 979 F.3d 472, 482–83 (6th Cir. 2020) (quoting Perez v. Oakland Cnty., 466 F.3d 416, 424;

(6th Cir. 2006). Plaintiff showed suicidal tendencies in his first suicide attempt, cutting his wrists

and the head of his genitalia, and that he posed likelihood of another suicide attempt, when he, in

no unmistakable terms, requested to be placed on suicide watch. (Doc. No. 1, at 29-30). The

objective component is met.

The subjective component is satisfied by a showing of deliberate indifference. See Estelle,

429 U.S. at 104, and Darrah v. Krisher, 865 F.3d 361, 367 (6th Cir. 2017). Plaintiff is required to

show that “‘the official knew of and disregarded an excessive risk to inmate health or safety.’”

Murray v. Dep’t of Corr., 29 F.4th 779, 786–87 (6th Cir. 2022) (quoting Farmer, 511 U.S. at 837,

(alterations omitted)). For a particular defendant to be held liable on such a claim, “the plaintiff

must show that [the] defendant acted with a mental state ‘equivalent to criminal recklessness.’”

Santiago v. Ringle, 734 F.3d 585, 591 (6th Cir. 2013). Such a “showing requires proof that [the]

defendant subjectively perceived facts from which to infer substantial risk to the prisoner, that he

did in fact draw the inference, and that he then disregarded that risk by failing to take reasonable

measures to abate it.” Id. (quoting Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001)

(internal quotation marks omitted)).

Here, Plaintiff pled facts showing that Defendant Heroux acted with reckless disregard of

a substantial risk of serious harm in denying Plaintiff’s request to be placed on suicide watch after

his obvious attempted suicide. But it did not end there. Defendant Heroux acted with reckless

disregard by returning Plaintiff to the same cell in which he self-harmed with a metal shard, and

now possibly had access to new means leading to serious injury via broken glass from a cracked

window. (Id. at 29, 63). And construed in a light most favorable to Plaintiff, the facts plausibly

suggest that Defendant Heroux, having searched the cell for razor blades in the past, (id. at 63),

had knowledge that this cell possibly contained hidden razor blades, presenting yet another risk of

serious injury. Such placement of a prisoner who is known to be and is manifestly mentally unwell,

who just attempted suicide, plausibly suggests reckless indifference to a Plaintiff’s serious medical

need. Moreover, Plaintiff had enough time to retrieve razor blades hidden in his cell and cut off

his penis entirely, which (the Court must accepts as true at this juncture) “took a little while,”

despite supposedly being on suicide watch (i.e., constant supervision).11 (Id. at 30).

As for Defendant Milliner, Plaintiff pled facts to show Defendant Milliner acted with

reckless disregard in observing Plaintiff’s cell extraction and cracked window in his cell, and—

whether following Defendant Heroux’s instruction or Plaintiff’s direct request to her—did not

place Plaintiff on suicide watch in the infirmary, despite Plaintiff’s clear requests. (Id. at 29, 63).

Thus, the Court finds that Plaintiff has alleged factual matter to permit, for the time being,

a claim for deliberate indifference of a serious medical need in violation of the Eighth Amendment

against Defendant Heroux and Milliner.

Finally, and in connection with the self-injury incident above, Plaintiff’s third subclaim,

brought against Defendant Colburn, is that his post-hospitalization conditions of confinement

constituted cruel and unusual punishment in violation of the Eighth Amendment. As previously

stated, a conditions-of-confinement claim must satisfy the objective and subjective comments of

the Eighth Amendment. The objective component is contextual and responsive to “contemporary

standards of decency.” Hudson v. McMillian, 503 U.S. 1, 9 (1992). “Extreme deprivations” are

required to make out a conditions-of-confinement claim. Id. Conditions-of-confinement claims

“are highly fact-specific, but one guiding principle is that the length of exposure to the conditions

11 Plaintiff was placed on a cement slab post-surgery, which involved having his genitalia reattached and

later surgically removed once necrosis set in.

is often paramount.” Lamb v. Howe, 677 F. App’x 204, 209 (6th Cir. 2017). One aspect of the

conditions of which Plaintiff complains is that it amounted to solitary confinement. As noted

above, confinement in segregation “is the sort of confinement that inmates should reasonably

anticipate receiving at some point in their incarceration.” Hewitt, 459 U.S. at 467-73, (1983). The

mere fact of segregation alone, therefore, does not support an Eighth Amendment claim.12

But there was more to Plaintiff’s incident of solitary confinement than just segregation. It

involves him being physically strapped to a cement slab in a room alone for several days staring

directly into overhead lighting, not long after severe blood loss and undergoing a major surgery to

reaffix (and later surgically remove) his severed genitalia. (Doc. No. 1, at 28-30). Not only was

Plaintiff left physically restrained and immobile for long stretches of time, Plaintiff laid in his own

excrement for approximately three hours, (Id. at 30), which not only heightens risk for infection

post-surgery but plausibly perceived as contrary to contemporary standards of human decency.

Accepting all factual allegations as plead as true, the Court finds for the time being that Plaintiff’s

restraint constitutes an “extreme deprivation,” and so the objective component is met.

Where this subclaim fails is in the subjective component. Per the Complaint, Plaintiff’s

restraint was ordered by Defendant Kent Colburn, despite his not having observed or spoken to

Plaintiff, who was at the time of such order was immobilized and confined to a wheelchair. (Doc.

No. 1, at 63). As with Defendants Heroux and Milliner, Plaintiff must show that Defendant Colburn

“subjectively perceived facts from which to infer substantial risk to [Plaintiff], that [Defendant

Colburn] did in fact draw the inference, and that he then disregarded that risk by failing to take

reasonable measures to abate it.” Comstock, 273 F.3d at 703, (internal quotation marks omitted).

12 The Court has discussed above the circumstances under which segregation (or, to be more precise, the

circumstances under which it is imposed) can support a procedural due process claim, but here the Court

of course is discussing an Eighth Amendment claim.

Although Defendant Colburn could have drawn an inference that placing Plaintiff in restraints

could lead to harm, even without having observed Plaintiff prior to ordering the restraints, Plaintiff

does not plead any facts plausibly suggesting that Defendant Colburn did in fact draw the inference

and then disregarded that risk by failing to take reasonable measures to abate it. The alleged facts

at most make this inference possible, rather than plausible as required. Fritz v. Charter Twp. of

Comstock, 592 F.3d 718, 722 (6th Cir. 2010) (“[T]the plaintiff must plead ‘sufficient factual matter’

to render the legal claim plausible, i.e., more than merely possible.” (quoting Ashcroft v. Iqbal, 556

U.S. 662, 677 (2009)).

And to be clear, Plaintiff’s complaint is not to having being restrained but rather to the

conditions he endured while restrained, i.e., being alone for several days, staring directly into

overhead lighting, and laying in his own excrement for approximately three hours. (Doc. No. 1 at

28-30). There are no facts in the Complaint plausibly suggesting that Defendant Colburn had any

knowledge of or control over the conditions Plaintiff endured while restrained, and no facts have

been pled to suggest that Defendant Colburn was aware of the conditions Plaintiff endured received

while restrained. This is because, among other things, awareness of such conditions cannot

plausibly be inferred from the mere fact that Defendant Colburn was aware on the front end that

Plaintiff was being restrained.

So as to the third subclaim, Plaintiff has set forth facts that satisfy only the objective

component, and not the subjective component. Therefore, the Court finds that Plaintiff’s third

subclaim fails, and thus Defendant Colburn, the only Defendant implicated by this subclaim, is

dismissed from this action.

In sum, the Court finds at this stage that Plaintiff has pled one colorable claim under the

Eighth Amendment, deliberate indifference to Plaintiff’s serious medical need, against Defendants

Heroux and Milliner.

C. Third Claim: Awaiting Execution is Cruel and Unusual Punishment

Plaintiff’s last claim is that waiting for an execution date to be scheduled is cruel and

unusual punishment. The Court certainly can understand how a looming, indeterminate execution

date could cause dread or frustration, as “[o]ver a century ago, [the Supreme Court] recognized

that ‘when a prisoner sentenced by a court to death is confined in the penitentiary awaiting the

execution of the sentence, one of the most horrible feelings to which he can be subjected during

that time is the uncertainty during the whole of it.’” Lackey v. Texas, 514 U.S. 1045 (1995) (quoting

In re Medley, 134 U.S. 160, 172 (1890) (internal citations omitted)).13 However, delays in carrying

out a death penalty often relate to the prolonged nature of death-penalty appeals and habeas corpus

proceedings, which reflects commitment to ensuring that the inmate has receive a rightful sentence

and that capital cases received the highest level of scrutiny.

Here, thirty-three (33) years has passed since Plaintiff was first sentenced to death. (Doc.

No. 1, at 66). In that time, Plaintiff has pursued multiple avenues for challenging his death

13 The Supreme Court in Lackey also noted that:

when the death penalty “ceases realistically to further these purposes [i.e., retribution and

deterrence], ... its imposition would then be the pointless and needless extinction of life

with only marginal contributions to any discernible social or public purposes. A penalty

with such negligible returns to the State would be patently excessive and cruel and unusual

punishment violative of the Eighth Amendment.” Furman v. Georgia, 408 U.S. 238, 312,

92 S. Ct. 2726, 2764, 33 L.Ed.2d 346 (1972) (opinion concurring in judgment); see also

Gregg v. Georgia, 428 U.S., at 183, 96 S. Ct., 2929 (“[T]he sanction imposed cannot be so

totally without penological justification that it results in the gratuitous infliction of

suffering”).

Lackey, 514 U.S. 1045.

sentence, via appeal and various forms of collateral attack. See State v. Hodges, No. 01-C-01-9212-

CR00382, 1995 WL 301443, at *1 (Tenn. Crim. App. May 18, 1995), aff’d, 944 S.W.2d 346 (Tenn.

1997); Hodges v. State, No. M1999-00516-CCA-R3PD, 2000 WL 1562865, at *1 (Tenn. Crim.

App. Oct. 20, 2000) (affirming Davidson County Criminal Court’s denial of Plaintiff’s post-

conviction relief); Hodges v. Bell, 548 F. Supp. 2d 485, 490 (M.D. Tenn. 2008) (denying petition

for habeas corpus relief), aff’d sub nom. Hodges v. Colson, 711 F.3d 589 (6th Cir. 2013), opinion

amended and superseded, 727 F.3d 517 (6th Cir. 2013), and aff’d sub nom. Hodges v. Colson, 727

F.3d 517 (6th Cir. 2013); Hodges v. Carpenter, 575 U.S. 915 (2015) (denying writ of certiorari).

In this way, Plaintiff was not only afforded the right to appeal his sentence, but he clearly fully

manifested the vetting of those rights.

Although the Supreme Court has repeatedly grappled with the effects of a pending (but

sometimes temporally indefinite) execution during the inevitable long wait between the imposition

of sentence and the actual infliction of death, what remains clear is that there is no recognized

constitutional right to having an execution date scheduled or set. The Supreme Court repeatedly

has denied writ of certiorari of claims that sitting on death row, awaiting an execution, is cruel and

unusual. See e.g., Jordan v. Mississippi, 585 U.S. 1039 (2018); Sireci v. Florida, 580 U.S. 1036

(2016); Conner v. Sellers, 579 U.S. 957 (2016); Boyer v. Davis, 578 U.S. 965 (2016); Lackey, 514

U.S. 1045. Those denials do not constitute substantive, merits-based determinations regarding

whether such a right exist, but they do highlight that the Supreme Court has never taken the

opportunity to announce such a right. Still less has it announced a test for when that right is

violated, i.e., a manner of determined when (or by when) an execution date must be set lest the

condemned inmate’s Eight Amendment rights be violated.

Finally, even if Plaintiff had plausibly suggested a right to have an execution date set (under

particular circumstances) and a violation of that right (given his particular circumstances), the

Court is unaware of any authority it has to grant the particular relief sought from this Court (i.e.,

scheduling an execution date). Plaintiff’s execution, being sentenced under state law, falls under

the mandate of the Tennessee Supreme Court, which leaves in question the limits of this Court’s

remedial powers.

Finally, the Court notes that it seriously questions whether this form of relief is

appropriately sought via Section 1983, rather than via habeas corpus. The Court suspects the latter,

but it need not decide that here.

Thus, the Court finds for purposes of initial review that Plaintiff’s third claim fails to state

a federal claim upon which relief can be granted.

CONCLUSION

For the reasons stated herein, the Court finds that Plaintiff’s first claim (“due process

violation”) and third claim (cruel and unusual punishment due to not having a scheduled execution

date) fail to state a claim upon which relief can be granted. Accordingly, these claims do not

survive screening under Section 1915(e)(2) and therefore are dismissed. But the Court does find,

for purposes of initial screening, that Plaintiff has pled one colorable claim under the Eighth

Amendment, namely a claim of deliberate indifference to Plaintiff’s serious medical need. Being

the defendants named in this claim, Defendants Frank Heroux and Karen Milliner shall remain

parties to this matter; all other named defendants are DISMISSED from this action.

The Court’s determination that the Complaint states a colorable claim for purposes of this

initial screening does not preclude the Court from neither dismissing any claim at any time for the

reasons set forth in 28 U.S.C. § 1915(e)(2), nor does it preclude any Defendant from filing a motion

to dismiss any claim under Federal Rule of Civil Procedure 12.

Moreover, presently pending before the Court are two motions requesting a screening order

under the PLRA, pursuant to 28 U.S.C. § 1915(e)(2), filed by Defendants Dennis Davis, Kevin

Genovese, Frank Heroux, Tony Mayes, Frank Strada (Doc. No. 29, “TDOC Motion”) and

Defendants Centurion of Tennessee, Kent Colburn, Karen Milliner (Doc. No. 32, “Centurion

Motion”). With the entry of this Order, these Motions are now moot. Thus, the TDOC Motion

(Doc. No. 29) and the Centurion Motion (Doc. No. 32) are hereby DENIED.

IT IS SO ORDERED.

Chi Recheardoor

Chi Ruch

UNITED STATE DISTRICT JUDGE