Gibbs v. Tennessee Department of Corrections

IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

JERMAINE GIBBS, )

)

Plaintiff, ) NO. 3:23-CV-01047

)

v. ) JUDGE RICHARDSON

)

TENNESSEE DEPARTMENT OF )

CORRECTIONS, WARDEN TONY )

MAYS, in his official and individual )

capacities; LIEUTENANT CHARLES )

STEVENS, in his individual capacity; )

CAPTAIN DARRELL JONES, in his )

individual capacity; OFFICER MADISON )

CAMPBELL, in her individual capacity; )

OFFICER DAKOTA TAYLOR, in his )

individual capacity; STEVEN WHITE, in )

his individual capacity; and DANIEL )

QUEVEDO in his individual capacity, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Jermaine Gibbs (“Plaintiff”) brought this lawsuit against Defendants Tennessee

Department of Corrections (“TDOC”), Warden Tony Mays (in his official and individual

capacities), and the following individuals in their respective individual capacities: Lieutenant

Charles Stevens, Captain Darrell Jones, Officer Madison Campbell, Officer Dakota Taylor, Steven

White,1 and Daniel Quevedo.

1 At the time of initial filing, Plaintiff listed Steven White as one of the defendants in this matter. (Doc. No.

1). In filing the “First Amended Complaint”, Plaintiff omitted Steven White as a named defendant and

explained that he mistook Steven White for new Defendant Daniel Quevedo and, as a result, named Steven

White by mistake. (Doc. No. 47 at ¶ 53). Defendants, in their subsequent two motions to dismiss, went

along with Plaintiff’s change and removed White from the captions in those documents. (Doc. No. 52; Doc.

No. 60). Consistent with the parties’ treatment of Steven White, the Court below directs that he be

terminated as a Defendant, though at times herein the Court refers to him as if he was still a Defendant.

Pending before the Court is “Defendants’ Motion to Dismiss” (Doc. No. 52, “Motion”),

whereby all defendants except Quevedo2 and White (“Defendants”) seek to dismiss the suit under

Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. Defendants

support the Motion with an attached memorandum of law (Doc. No. 52-1). Plaintiff responded

with “Plaintiff’s Response to Defendants’ Motion to Dismiss [ECF 52] and Incorporated

Memorandum of Law” (Doc. No. 53, “Response”). Thereafter, Defendants filed “Defendants’

Reply in Further Support of Motion to Dismiss” (Doc. No. 56, “Reply”).

For the reasons stated herein, Defendants’ Motion is GRANTED in part and DENIED in

part.

RELEVANT BACKGROUND3

Plaintiff is an inmate who was formerly incarcerated at Riverbend Maximum Security

Prison (“Prison”). (Doc. No. 47 at ¶¶ 1, 14). TDOC, an agency of the state of Tennessee, operates

the Prison. (Id. at ¶¶ 1, 7). At the time of the events implicated in Plaintiff’s First Amended

Complaint (Doc. No. 47, “Amended Complaint”), TDOC employed Defendant Tony Mays as

warden of the Prison. (Id. at ¶ 8). Additional Defendants Captain Darrell Jones (“Capt. Jones”),

Lieutenant Charles Stevens (“Lt. Stevens”), Madison Campbell, Dakota Taylor, Steven White, and

Daniel Quevedo all either currently are, or at the times of the events alleged in the Amended

2 When Defendants filed the instant Motion, “[n]ewly named Defendant Daniel Quevedo [was] not . . .

represented by [counsel for the other Defendants].” (Doc. No. 52 at n. 1). In the intervening period, the

other Defendants’ counsel became counsel for Quevedo and filed a separate motion to dismiss on his behalf.

(See Doc. No. 60).

3 The facts contained herein come from the Amended Complaint. For purposes of the instant Motion and

pursuant to the typical mechanisms of assessing motions under Federal Rule of Civil Procedure 12(b)(6),

the Court accepts the facts in the Amended Complaint as true, except to the extent that this Order qualifies

them (as, for example, by “Plaintiff alleges”) to denote that they are not being taken as true (because, for

example, they are not really facts at all but rather legal conclusions) but rather are set forth to indicate what

Plaintiff claims to be true. Throughout this Order, the Court forgoes any such qualifiers for any fact that it

is accepting as true, stating those facts without qualification even with the awareness that any such alleged

fact may ultimately prove false.

Complaint were, correctional officers working for TDOC. (Id. at ¶¶ 9-13). Quevedo has since left

his position. (Id. at ¶ 13). In addition to their regular duties, Campbell and Taylor served on the

Corrections Emergency Response Team (“CERT”) during the time of the events alleged, with

Campbell serving as the group’s commander. (Id. at ¶¶ 11-12). As all work or worked for a

Tennessee state agency, each Defendants acted under the color of law.4 (Id. at ¶¶ 8-13).

The dispute originated on April 11, 2023, when another inmate engaged Plaintiff in a

physical altercation. (Id. at ¶ 14). Officer Michael Maerki attempted to stop the incident by tackling

Plaintiff, but the other inmate stuck Maerki with a broomstick and broke Maerki’s hand. (Id. at ¶¶

15-16). This prompted a call from the correction officers’ radios, stating that Maerki was stabbed

(which was inaccurate) and that the situation required assistance. (Id. at ¶ 17). Members of CERT

responded, ordered the fight to stop, and dispensed chemical agents to quell the unrest, which

resulted in both inmates either retreating or complying with instructions. (Id. at ¶¶ 18-19). After

lying down on the ground awaiting the next steps, Plaintiff was handcuffed by an unidentified

individual. (Id. at ¶¶ 19-20). Medical staff at the Prison evaluated Plaintiff and concluded that the

fight led only to “minor scratches and bruising.” (Id. at ¶ 21).

After Plaintiff’s evaluation, members of CERT led Plaintiff to a different wing of the

Prison. (Id. at ¶ 22). At this point, Taylor picked up Plaintiff and dropped him on his head six times.

(Id.). Plaintiff then was dragged by an unidentified individual or individuals and “beaten, kicked,

tazed [sic], and stabbed” by Capt. Jones, Lt. Stevens, Campbell, Taylor, and Quevedo. (Id. at ¶¶

22-23). Specifically, Lt. Stevens “chok[ed] him until he nearly lost consciousness, punch[ed] him

in his right eye, and stomp[ed] him” and Campbell tased him while he was handcuffed. (Id. at ¶¶

4 The Court assumes arguendo the truth of this allegation, although it likely is more a legal conclusion (not

entitled to the presumption of truth herein) than a factual allegation (entitled to a presumption of truth

herein).

25-26). Plaintiff’s injuries prompted transport to Vanderbilt University Medical Center (“VUMC”)

where medical personnel diagnosed Plaintiff with the following injuries: “multiple facial fractures

including a nonoperative left orbital roof fracture and a front sinus wall fracture, a massive left

frontal scalp hematoma,” hemorrhages in both eyes, loss of vision, and stab wounds in his left

thigh. (Id. at ¶¶ 23, 27).

After the incident, Lt. Stevens made physical copies of videorecording related to the

incident on DVD but requested only one particular video (the “Unit 4 Delta Pod” video), thus

intentionally excluding the videorecording of the assault on Plaintiff by the correctional officers

(which, apparently, was not captured on the Unit 4 Delta Pod video). (Id. at ¶ 28). This allegedly

“incomplete and misleading” video (meaning, apparently, a copy of the Unit 4 Delta Pod video)

was what Lt. Stevens gave to Assistant Warden Ernest Lewis, who in turn provided the video to

Warden Mays. (Id.). Upon his return to the Prison, Plaintiff remained in the infirmary for

observation and sought grievance forms “from each and every correctional officer that he

encountered,” but each officer refused to provide Plaintiff his desired forms. (Id. at ¶ 29). Plaintiff

further avers that Warden Mays had knowledge, or at least reason to know, of the alleged misdeeds

by his officers and that he took affirmative action to stop any possible investigation into Plaintiff’s

injuries. (Id. at ¶¶ 31, 32).

Without Plaintiff’s involvement, on April 18, 2023, TDOC opened an investigation

stemming from an unnamed correctional officer complaining of officers’ use of excessive force

within the Prison. (Id. at ¶ 33). Special Agent Lisa McCallum conducted the investigation and

determined that Campbell did use a taser on Plaintiff and yet did not report such use of force. (Id.

at ¶¶ 34, 35).

On April 21, 2023, Plaintiff finally convinced prison medical professional Jennifer Miller

to provide him with a grievance form. (Id. at ¶ 36). Plaintiff completed the form and handed it back

to Miller, who passed it on to a corrections officer (last name Kelly), who “placed the grievance in

the grievance box at the clinic.” (Id.). Plaintiff alleges that Miller proved to be his “only advocate”

following his assault.” (Id. at ¶ 37).

On April 24, 2023, Miller escorted Plaintiff’s attorney to meet Plaintiff at the infirmary.

(Id.). Upon Plaintiff’s attorney’s arrival at the Prison, Miller was ordered to escort the attorney off

the premises, but when the attorney threatened legal action, those in charge permitted him to visit

with Plaintiff. (Id. at ¶ 38). During his counsel’s visit, multiple correctional officers would not

allow the two to meet in private, and to get the officers to leave, the attorney once again had to

threaten legal action. (Id. at ¶ 39). Though they left the room, the correctional officers stayed within

earshot of the conversation. (Id.). The correctional officers interrupted their conversation at various

times during the meeting, before terminating the meeting prematurely. (Id. at ¶ 40). On April 26,

2023, Plaintiff’s counsel sent to Warden Mays (“via certified mail, return receipt”) “a discovery

preservation letter and public records request,” requesting all pertinent records from the incident

on April 11. (Id. at ¶ 43). Nevertheless, the “pertinent [video] footage” was destroyed. (Id.).

On May 2, 2023, the first-line supervisor marked the grievance as “non-grievable” due to

its delayed filing more than seven days after the incident and, according to the supervisor, its

improperly containing “multiple issues” for grievance. (Id. at ¶ 44). In reality, the grievance

contained only a single issue, namely the assault that is the subject of this lawsuit. (Id. at ¶ 45).

Plaintiff appealed this ruling, first to the Grievance Chairperson and then to Warden Mays, both of

whom agreed with the supervisor’s assessment. (Id. at ¶¶ 46-47). Plaintiff further appealed to

Kevin Genovese, the Deputy Assistant Commissioner of Prison Operations for TDOC, who

thought the grievance deserved a proper response and advised the supervisor to address its merits.

(Id. at ¶ 48). The supervisor addressed Plaintiff’s allegations and opined that no wrongdoing on

the part of TDOC employees occurred. (Id. at ¶¶ 49-50). Plaintiff alleges that this was due to the

supervisor not viewing ”the appropriate video footage,” i.e., footage of the incident that supposedly

occurred while the corrections officers transported him between wings. (Id.).

Plaintiff filed his initial complaint in this case (Doc. No. 1) on October 6, 2023. (Id. at ¶

51). In the period between that filing and the subsequent filing of the Amended Complaint, Plaintiff

alleges, numerous retaliatory actions were taken by Lt. Stevens. (Id. at ¶¶ 51-53). After TDOC

assigned Lt. Stevens as Plaintiff’s case manager, Lt. Stevens gave away Plaintiff’s belongings to

other inmates, urinated on Plaintiff’s property, instigated others to have physical conflicts with

Plaintiff, and on one occasion walked up and punched Plaintiff in the face, causing a new orbital

fracture in his right eye. (Id. at ¶¶ 51, 53, 55). And yet Defendant TDOC “refused for months to

remove Lt. Stevens from this position of authority over Plaintiff, despite a pending lawsuit.” (Id.

at ¶ 51). Plaintiff claims in effect that some of his allegations received corroboration from various

sources, including an unnamed TDOC corrections officer who contacted Plaintiff’s counsel and a

subsequent internal TDOC investigation. (Id. at ¶¶ 53, 55). Due to the alleged continuing actions

by Lt. Stevens, Plaintiff was granted transfer to West Tennessee State Penitentiary on February 29,

2024.

Plaintiff then filed the Amended Complaint on April 8, 2024, alleging the following claims

under 42 U.S.C. § 1983 and the Eighth Amendment of the Constitution: (1) “Use of Unnecessary

and Excessive Force” against Lt. Stevens, Capt. Jones, Campbell, Taylor, and Quevedo; (2)

Improper Policy Making5 against Warden Mays in his official and individual capacities; (3)

“Supervisory Liability - Failure to Train/Supervise” against Warden Mays in his official capacity;

and (4) “Retaliation in Violation of the First Amendment” against Lt. Stevens. (Id. at ¶¶ 59-81).

Plaintiff seeks compensatory and punitive damages as well as appropriate attorney’s fees, costs,

expenses, and interest. (Id. at 17 (Prayer for Relief)). Defendants then filed the instant Motion.

(Doc. No. 52).

LEGAL STANDARD

The Court must take all factual allegations within the complaint as true when reviewing a

motion to dismiss for failure to state a claim, under Federal Rule Civil Procedure 12(b)(6). Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009). A complaint that survives a motion to dismiss must contain

sufficient allegations of factual matter, that when accepted as true, state a facially plausible claim.

Id. Facially plausible claims are those that have sufficient factual content such that a court may

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,

will not suffice. Id.

On the other hand, well-pled factual allegations allow the court to assume their veracity

and then determine whether they plausibly give rise to an entitlement of relief. Id. at 679. A legal

conclusion, including one couched as a factual allegation, need not be accepted as true on a motion

to dismiss, and mere recitations of the elements of a cause of action are insufficient. Id.; Fritz v.

Charter Twp. 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

5 Plaintiff does not title this count in a similar way to the other three alleged. The Court has applied this

descriptive title for convenience based on the specific allegations present in the Amended Complaint. (See

Doc. No. 47 at ¶¶ 63-68).

defendant’s liability do not satisfy the plaintiff’s burden, as mere consistency does not establish

the 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 its

predecessor and complementary case, Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), 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, including any “bare

assertions,” formulaic recitation of the elements, and “conclusory” or “bald” allegations. Id. at

681. Then, the question is whether the remaining allegations plausibly suggest an entitlement to

relief. Id. If not, the pleading fails to meet the standard of Federal Rule Civil Procedure 8 and must

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

In general, matters outside the pleadings may not be considered in ruling on a motion to

dismiss under Federal Rule Civil Procedure 12(b)(6) unless the motion is converted to one for

summary judgment under Rule 56. Federal Rule Civil Procedure 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. [“Ohio State Univ.”]6,

219 F. Supp. 3d 645, 652-653 (S.D. Ohio 2016); Blanch v. Trans Union, LLC, 333 F. Supp. 3d 789,

791-792 (M.D. Tenn. 2018).

On a Rule 12(b)(6) motion to dismiss, “[t]he moving party has the burden of proving that

no claim exists.” Total Benefits Plan. Agency, Inc. v. Anthem Blue Cross and Blue Shield, 552 F.3d

430, 433 (6th Cir. 2008). To put it only slightly differently, “[a] Rule 12(b)(6) movant ‘has the

6 Given the forthcoming mention of another case with a leading party referred to as “Doe,” the Court elects

to refer to this case as “Ohio State Univ.” for purposes of the rest of this Order.

burden to show that the plaintiff failed to state a claim for relief.’” Willman v. Att'y Gen. of United

States, 972 F.3d 819, 822 (6th Cir. 2020) (quoting Coley v. Lucas Cnty., 799 F.3d 530, 537 (6th

Cir. 2015)). That is not to say that the movant has some evidentiary burden; as should be clear

from the discussion above, evidence (as opposed to allegations as construed in light of any

allowable matters outside the pleadings) is not involved in a Rule 12(b)(6) motion. The movant’s

burden, rather, is a burden of explanation; since the movant is the one seeking dismissal, it is the

one that bears the burden of explaining—with whatever degree of thoroughness is required under

the circumstances—why dismissal is appropriate for failure to state a claim.

DISCUSSION

I. Failure to State a Claim Against TDOC

At the outset, the Court agrees with Defendants that Plaintiff fails to implicate TDOC in

any one of the four counts in the Amended Complaint. (Doc. No. 52 at 1, n. 2; Doc. No. 52-1 at 1,

n.2). Plaintiff implicates the following defendants in the various counts as follows: Lt. Stevens,

Capt. Jones, Campbell, Taylor, and Quevedo in Count I (“Use of Unnecessary and Excessive

Force”); Warden Mays in Count II (Improper Policy Making) and Count III (“Supervisory

Liability - Failure to Train/Supervise”); and Lt. Stevens in Count IV (“Retaliation in Violation of

the First Amendment”). (Doc. No. 47 at ¶¶ 59-81). Nowhere in those four counts does Plaintiff

mention or name TDOC. The Court notes that multiple other courts have found it appropriate to

dismiss defendants should a plaintiff fail to name them in a claim. See Hill v. Bd. of Dirs., No.

2:23-cv-01298-JLS-BFM, 2024 WL 3677993, at *4 (C.D. Cal. Aug. 5, 2024) (dismissing with

prejudice four defendants “not named in any Cause of Action”); Gagliani v. Lexington Cnty.

Sheriff’s Dep’t, No. 3:20-3737-CMC-SVH, 2022 WL 3974192, at *20 n.9 (D.S.C. Sep. 1, 2022)

(dismissing a defendant who appears in the caption and the factual recitation but does not appear

in any cause of action). If the goal of a complaint is to “allow the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged,” incumbent upon the plaintiff to

tie the given defendant to some claim for which liability may be imposed. Iqbal, 556 U.S. at 678

(citing Twombly, 550 U.S. at 556). Here, Plaintiff does not do so with respect to TDOC.

This Court will not create a claim against TDOC and has no duty to do so when Plaintiff

has not “spelled out [a claim] in his pleading.” See Freightliner of Knoxville, Inc. v.

DaimlerChrysler Vans, LLC, 484 F.3d 865, 871 n.4 (6th Cir. 2007) (quoting Clark v. National

Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975)) (internal quotation marks and

parentheses omitted). In fairness to Plaintiff, he makes clear that he does not actually intend to

make a claim against TDOC—not one for damages, anyway. (Doc. No. 47 at ¶ 7) (stating that

TDOC is being sued not for damages but rather “solely for the purposes of injunctive relief”).7 As

a result, the Court will dismiss TDOC from this case.8

7 The reference to potential injunctive relief here is puzzling. Although Plaintiff sought preliminary

injunctive relief prior to the filing of the Amended Complaint, and indeed obtained some via a Consent

Order (Doc. No. 40), he has not sought any injunctive relief since that time, and the Amended Complaint

does not seek injunctive relief. (Doc. No. 47 at 17 at n. 7).

8 Though the Court does not construe Plaintiff’s claims in this way, it notes that if Plaintiff had intended to

imply TDOC’s culpability through a theory of vicarious liability/respondeat superior, such an implication

would have failed to state a claim because liability under 42 U.S.C. § 1983 cannot be based on such legal

theories. See Miller v. Calhoun County, 408 F.3d 803, 817 n.3 (6th Cir. 2005) (citing Taylor v. Mich. Dep’t

of Corr., 69 F.3d 76, 80-81 (6th Cir. 1995)). Instead, any claim for damages against TDOC would have to

be a so-called Monell claim, i.e., a claim under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). A claim

of municipal liability requires a showing that the alleged misconduct is the result of a policy,

statement, regulation, decision or custom promulgated by TDOC. Monell, 436 U.S. at 690-91. A

plaintiff can make a showing of an illegal policy or custom by demonstrating one of the following

circumstances: “(1) the existence of an illegal official policy or legislative enactment; (2) that an

official with final decision making authority ratified illegal actions; (3) the existence of a policy

of inadequate training or supervision; or (4) the existence of a custom of tolerance or acquiescence

of federal rights violations.” Burgess v. Fisher, 735 F.3d 462, 478 (6th Cir. 2013). And although

Plaintiff in the Amended Complaint complains in various ways about Defendant Mays’s failure to

create adequate policies, and also complains (for reasons the Court simply does not understand)

obliquely about “the insufficient” policies of — and ratification of individual Defendants’ actions

II. Alternatively, TDOC (as well as Defendant Mays in his official capacity) must be

dismissed based on Eleventh Amendment Immunity.

Alternatively, TDOC is subject to outright dismissal because it enjoys Eleventh Amendment

Immunity. And this immunity extends to Warden Mays in his official capacity9 because a claim

against a TDOC employee in his official capacity is really a claim against TDOC. As one district

court cogently explained:

As an initial matter, the Court notes a suit [for damages rather than injunctive relief]

against a defendant in his or her official capacity is treated as an action against the

governmental entity the officer represents. See Kentucky v. Graham, 473 U.S. 159,

166 (1985) (holding “an official-capacity suit is, in all respects other than name, to

be treated as a suit against the entity”); see, e.g., Hafer v. Melo, 502 U.S. 21, 25

(1991); Barber v. City of Salem, 953 F.2d 232, 237 (6th Cir. 1992). In an action

against a State officer acting in an official capacity, “the plaintiff seeks damages

not from the individual officer, but from the entity from which the officer is an

agent.” Pusey v. City of Youngstown, 11 F.3d 652, 657 (6th Cir. 1993). Defendants

Mary Brown, Parker, Settles, Dustin Brown, Neely, and Doby were employees at

BCCX at all relevant times. Therefore, Plaintiff's official-capacity claims are

brought against those Defendants in their official capacities as Tennessee

Department of Correction (“TDOC”) employees. See Graham, 473 U.S. at 166; see

also Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 n.55 (1978) (“[O]fficial-

capacity suits generally represent only another way of pleading an action against

an entity of which an officer is an agent.”).

The Eleventh Amendment prohibits suits against a state or its agencies in federal

court for damages, unless Congress has abrogated its immunity, or the state has

expressly waived it. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,

100 (1984); Quern v. Jordan, 440 U.S. 332, 320–45 (1979). Tennessee has not

waived its immunity. See Berndt v. State of Tennessee, 796 F.2d 879, 881 (6th Cir.

1986) (noting that Tennessee has not waived immunity to suits under § 1983).

TDOC is an agency of the State of Tennessee and, as such, it and its employees

sued in their official capacities are entitled to Eleventh Amendment immunity.

Mumford v. Basinski, 105 F.3d 264, 267 (6th Cir. 1997); Foster v. Walsh, 864 F.2d

416, 418 (6th Cir. 1988). Accordingly, Plaintiff's claims for money damages against

by—"the Prison,” nowhere does the Amended Complaint makes anything cognizable as a Monell

claim against TDOC, perhaps because Plaintiff realizes full well that any such claim would be

barred by Eleventh Amendment immunity anyway.

9 Notably, Defendant Mays is the only Defendant sued in his official capacity (as well as his individual

capacity). The other individual Defendants are sued only in their respective individual capacities.

all named Defendants in their official capacities are barred by the Eleventh

Amendment, as are any claims against TDOC itself.1 See Berndt, 796 F.2d at 881.

Haynes v. Aramark Corr. Servs., Inc., No. 318CV00175JRGDCP, 2019 WL 3241173, at *1–2

(E.D. Tenn. July 18, 2019). The Court need say little more here. All claims against TDOC

(including any that might request solely injunctive relief ) are necessarily barred; this is true even

though a claim against a TDOC official in his official capacity is not necessarily barred by Eleventh

Amendment immunity.10 And all claims against Defendant Mays in his official capacity are

dismissed to the extent that seek anything other than injunctive relief (i.e., seek damages). And

since Plaintiff seeks no injunctive relief via the Amended Complaint, as explained in a footnote

above, the claims against Defendant Mays in his official capacity are dismissed in their entirety.

Thus, there remaining only claims against the individual defendants, in their respective individual

capacities.

III. Exhaustion of Internal Prison Grievance Process

An individual who claims that his or her constitutionally or federally guaranteed rights

have been violated by an individual acting under the color of law can seek redress through 42

U.S.C. § 1983. Monroe v. Pape, 365 U.S. 167, 172 (1961), overruled on other grounds, Monell v.

Dep’t of Soc. Servs., 436 U.S. 658, 663 (1978). To do so, the individual must show that: (1) the

offender acted under the color of law; and (2) by acting under the color, of law, the offender has

deprived the individual of a right “‘secured by the Constitution and the laws of the United States.’”

Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156 (quoting 42 U.S.C. § 1983). In the case at hand, that

10 Claims against a TDOC official in his official capacity are not barred by Eleventh Amendment immunity,

to the extent that they seek injunctive relief. This because in the context of requests for injunctive relief

(unlike requests for damages), for legal/technical/constitutional reasons on which the Court need not dwell

herein, claims against a state official in his or her official capacity are not treated as claims against the state.

right is the Eighth Amendment’s protection against “cruel and unusual punishments.” U.S. Const.

amend. VIII.

The Prison Litigation Reform Act of 1995 (“PLRA”), 42 U.S.C. § 1997e et seq., serves to

reduce the amount of court proceedings stemming from prisoner complaints by requiring prisoners

to exhaust their respective internal prison grievance process before filing in court. Jones v. Bock,

549 U.S. 199, 202 (2007). This requirement holds for “all inmate suits about prison, whether they

involve general circumstances or particular episodes, and whether they allege excessive force or

some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). Additionally, the PLRA permits

courts to dismiss claims outright before the prisoner exhausts his or her respective grievance

process if the action is “frivolous, malicious, fails to state a claim upon which relief can be granted,

or seeks monetary relief from a defendant who is immune from such relief.” 42 U.S.C. § 1997e(c).

However, courts have held that prisoners need exhaust only those remedies that are

available to them. Lamb v. Kendrick, 52 F.4th 286, 292 (6th Cir. 2022) (citing Ross v. Blake, 578

U.S. 632, 642 (2016)). There are three key situations when apparent remedies created by a prison

grievance process become unavailable:

(1) “when (despite what regulations or guidance materials may promise) [the

grievance process] operates as a simple dead end—with officers unable or

consistently unwilling to provide any relief to aggrieved inmates”; (2) when “some

mechanism exists to provide relief, but no ordinary prisoner can discern or navigate

it” because it is “so opaque” or “so confusing”; and (3) “when prison administrators

thwart inmates from taking advantage of a grievance process through machination,

misrepresentation, or intimidation.”

Lamb, 52 F.4th at 292 (quoting Ross, 578 U.S. at 643-44).

Different circuits have adopted different approaches in terms of how to assess whether the

inmate has exhausted their administrative remedies before filing suit, with several using various

forms of a burden-shifting approach. See Hubbs v. Suffolk Cnty. Sherrif’s Dept., 788 F.3d 54, 59

(2d Cir. 2015); Rinaldi v. United States, 904 F.3d 257, 268 (3d Cir. 2018); Albino v. Baca, 747 F.3d

1162, 1172 (9th Cir. 2014); Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011); Geter v.

Baldwin State Prison, 974 F.3d 1348, 1356 (11th Cir. 2020). As for the Sixth Circuit, it has held

that a plaintiff who contends that he or she was prevented from exhausting his or her remedies

places the burden on the defendants, who must then “present evidence showing that the plaintiff’s

ability to exhaust was not hindered.” Lamb, 52 F.4th at 295 (quoting Surles v. Andison, 678 F.3d

452, 457 n.10 (6th Cir. 2012)). Further, there is no one standard of what constitutes the availability

of any given set of prison grievance mechanisms, and the Court must address each set of

circumstances as they occur “in practice” in the given case. Coopwood v. Wayne Cnty., 74 F.4th

416, 422 (6th Cir. 2023) (quoting Doe 8-10 v. Snyder, 945 F.3d 951, 993 (6th Cir. 2019)).

Defendants seek to dismiss each claim by arguing that Plaintiff failed to exhaust the

grievance process provided by TDOC. (Doc. No. 52-1 at 10, 12, 14). Though related, each

argument deals with a different portion of the factual allegations set forth in the Amended

Complaint. Therefore, the Court will address in turn the arguments as to each count.

a. Count I (“Use of Unnecessary and Excessive Force”) against Stevens, Jones, Campbell,

Taylor, and Quevedo

Defendants first take aim at Plaintiff’s count against Lt. Stevens, Capt. Jones, Campbell,

Taylor, and Quevedo for using what Plaintiff describes as “Unnecessary and Excessive Force.”

Defendants point to the delay between the alleged incident, which occurred on April 11, 2023, and

the filing of the grievance, which occurred on April 21, 2023. (Id. at 11). This, per Defendants, is

a direct violation of the policy instituted by TDOC and the Prison, which mandates that an inmate

file his or her grievance no later than seven days after the alleged incident. (Id.). And , according

to Defendants, this policy-violating tardiness means that Plaintiff failed to exhaust his

administrative remedies.

Plaintiff responds with citations to Ross and points to his allegation from paragraph twenty-

nine of the Amended Complaint: that he sought grievance forms “from each and every correctional

officer that he encountered” upon his return from VUMC, but none would provide them to him.

(Doc. No. 53 at 11). In their reply, Defendants attempt to rebut this statement through citations to

a case from the Eastern District of Michigan, which held that in situations such as these, inmates

countering failure to exhaust defenses “must offer competent and specific evidence showing that

[the inmate] indeed exhausted his remedies or was otherwise excused from doing so.” (Doc. No.

56 at 2) (quoting Sango v. Johnson, No. 13012808, 2014 WL 8186701, at *5 (Oct. 29, 2014)).11

Essentially, Defendants ask the Court to adopt the Sango standard for situations when a

defendant moves to dismiss under Rule 12(b)(6) based in relevant part on an alleged failure to

exhaust remedies. The Court declines to do so.12 The “competent and specific evidence” standard

outlined in Sango—which was invoked in response to a motion for summary judgment— demands

an evidentiary showing perhaps appropriate for motions for summary judgment under Federal Rule

of Civil Procedure 56, but not for motions to dismiss for failure to state a claim under Rule

11 The Court notes that the quoted statement from Sango appears to be the construction of the Sango court

alone, as the court did not cite any authority for that specific statement. No. 13012808, 2014 WL 8186701,

at *5 (E.D. Mich. Oct. 29, 2014). Likewise, the case cited by the Sango court before and after making the

quoted statement, Jones v. Bock, 549 U.S. 149 (2007), neither makes nor refers to anything like the quoted

statement.

12 The Court has found two (and only two) instances where “competent and specific evidence” was the

standard used in a case where a defendant challenged the complaint under Rule 12(b)(6). The first case

refers to “competent and specific evidence” in the context of attorney-client privilege in a securities fraud

action. In re Omnicom Group Inc., Sec. Litig., 223 F.R.D. 400, 404 (S.D.N.Y 2006). The other case is Jones

v. Strada, No. 3-23-cv-9-KAC-DCP, 2025 WL 224634 (E.D. Tenn. Jan. 16, 2025), and the Court concedes

that this one appears applicable to the instant case because the standard was applied specifically to the issue

of failure to exhaust. However, Jones invokes the standard with a direct citation to Sango—which, again,

is inapplicable in that it involved a motion for summary judgment—and no further support. Id. at *2. This

Court respectfully declines to follow such reasoning in this instance, as this Court of course is free to do.

See United States v. Edwards, 456 F. Supp. 3d 953, 955 (M.D. Tenn. 2020) (noting that neither Court of

Appeals decisions from circuits other than the Sixth Circuit, nor “district court opinions from around the

country, including those from within this circuit” constitute binding precedent on this Court).

12(b)(6). During motions for summary judgment, should a moving party meet its initial burden of

showing no genuine dispute over material facts, the non-movant must then “set forth specific facts

showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 250 (1986).

In contrast, motions to dismiss for failure to state a claim simply ask whether the non-

moving party has shown a plausible claim whereby the court may grant relief. Iqbal, 556 U.S. at

679. Motions under Rule 12(b)(6) generally do not consider information outside of the complaint

and any attachments thereto, but rather only those factual allegations present in the operative

complaint, unless the filing party wishes to instead convert their motion to one for summary

judgment under Rule 56. Fed. R. Civ. P. 12(d). The exception to this general rule is that: “When a

court is presented with a Rule 12(b)(6) motion, it may consider the Complaint and any exhibits

attached thereto, public records, items appearing in the record of the case and exhibits attached to

defendant’s motion to dismiss [without converting it into a motion for summary judgment under

Rule 56] so long as they are referred to in the Complaint and are central to the claims contained

therein.” Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008); see also Doe,

219 F. Supp. 3d at 652-53; Blanch, 333 F. Supp. 3d at 791-92.

The Sango standard of “competent and specific evidence” requires the court, should a

defendant raise failure to exhaust the internal grievance process as an affirmative defense, to focus

on things that generally Iqbal and Twombly do not focus on, namely, whether the plaintiff loses

despite setting forth factual matter that (when taken as true) plausibly suggests an entitlement to

relief. Sango, 2014 WL 8186701, at *5; Iqbal, 556 U.S. at 678. The standard also requires the

Court, contrary to Iqbal and Twombly, to not accept as true factual allegations suggesting that

avenues for exhaustion of remedies were not available to the plaintiff.

This Court has recognized a need for plaintiffs to present “significant probative evidence”

when challenged over their exhaustion of a grievance process, but only on motions for summary

judgment, not on motions to dismiss under Rule 12(b)(6). Middlebrooks v. Helton, No. 3:23-cv-

00054, 2025 WL 790947, at *5 (M.D. Tenn. March 11, 2025) (citing Napier v. Laurel Cnty., Ky.,

636 F.3d 218, 225 (6th Cir. 2011)). In contrast, when faced with motions to dismiss in such cases,

this Court has reasserted the strength of Iqbal’s presumption and that, should those factual

allegations alone state a credible assertion that the plaintiff “attempted to file grievances but his

request[s] for a grievance form were ignored,” dismissal is not the appropriate action. Strader v.

Cumberland Cnty., No. 2:19-cv-00045, 2020 U.S. Dist. LEXIS 217857, at *2 (M.D. Tenn. Nov.

20, 2020).

Absent the evidentiary standard used in Sango, this issue is straightforward. Plaintiff claims

to have petitioned “each and every correctional officer that he encountered” for a grievance form

and was ignored or denied. (Doc. No. 47 at ¶ 29). Defendants, in relying on the ruling in Sango,

fail to refute this assertion (as was virtually inevitable, given the very limited tools at the disposal

of a non-movant at this juncture). Taking the allegations Plaintiff makes in his Amended

Complaint as true (and recognizing what allegations Plaintiff has not made, i.e., allegations

somehow affirmatively showing that failed to exhaust his remedies despite them being available

to him), he sets out a scenario where: (1) his rights against cruel and unusual punishment have

been violated by those Defendants implicated in Count I; (2) those Defendants acted under the

color of state law; and (3) he attempted to comport with the internal process; but (4) those in power

thwarted his ability to do so. (Id. at ¶¶ 13-18, 22-26, 29). These allegations support a lack (or

excusal) of a failure to exhaust, and Defendants do not argue that Plaintiff has failed to show a

substantive plausibility of an entitlement to relief on Count I. Therefore, Count I survives.

Relatedly, the Court will not consider dismissing any other count on the specific grounds

that Plaintiff’s grievance was untimely. But the Court will consider any other argument(s) that

Plaintiff failed to properly exhaust his remedies.

b. Count II (Improper Policy Making) and Count III (“Supervisory Liability - Failure to

Train/Supervise”), Both Against Warden Mays

Next, Defendants argue that Plaintiff “failed to grieve anything close to inappropriate

policy-making or supervisory actions which he now brings in his FAC under Counts 2 and 3 against

Warden Mays,” meaning that Plaintiff failed to exhaust the grievance process with respect to

Counts 2 and 3. (Doc. No. 52-1 at 13). In support of that argument, Defendants present a

declaration by the Grievance Chairperson, who avers that “Plaintiff’s first grievance dated April

21, 2023 . . . contains no allegations with respect to the actions or inactions of then-Warden Tony

Mays.” (Doc. 52-2 at ¶ 17). A copy of the grievance was filed as Exhibit C to both the original

complaint and the Amended Complaint, (Doc. Nos. 1-3; 50-3), and it entirely supports this

averment. To be clear, the Court is not considering the averment in the declaration (which was

neither part of the Amended Complaint nor referred to or central to the Amended Complaint).

Instead, the Court is considering the grievance itself, which was made part of the Amended

Complaint—and thus (as Plaintiff does not dispute) is the kind of thing that can affirmatively

support a finding of a lack of exhaustion even at the motion-to-dismiss stage.

Plaintiff does not dispute that his grievance did not include the inappropriate policy-making

or supervisory actions that underlie Counts 2 and 3 against Warden Mays. Instead, he asserts, in

conclusory fashion: (i) that Counts II and III are within the scope of his grievance anyway because

they are “related to the initial assault” that was the subject of the grievance; and (ii) that the

exhaustion defense is waived (including as to Counts II and III) because “prison officials rendered

a final decision that addressed the merits” of Plaintiff's grievance. (Doc. No. 53 at 9, 9-10).

The Court rejects Plaintiff’s underdeveloped argument that the substance of Counts II and

III are within the scope of his grievance merely because they “related to” the initial assault. The

Counts II and III are much more specific in their basis for liability, and much more specifically

directed at a particular Defendant (Warden Mays), than anything in Plaintiff’s April 21, 2023

grievance. The substance of Counts 2 and 3 went unmentioned and thus was not within the scope

of that grievance. See, e.g., Johnson v. Wilkinson, No. 1:19-CV-437, 2020 WL 5506170, at *3

(W.D. Mich. May 8, 2020) (finding that when something went unmentioned in a grievance, it was

not within the scope of the grievance), report and recommendation adopted, No. 1:19-CV-437,

2020 WL 5503601 (W.D. Mich. Sept. 11, 2020); Bennett v. Winn, No. 17-CV-12249, 2018 WL

3853601, at *4 (E.D. Mich. Aug. 14, 2018) (finding that because “[t]he [g]rievance does not

sufficiently identify [defendant James] Zummer. Thus, Bennett did not exhaust his claims against

Zummer”).

The problem here is not merely technical; Plaintiff’s grievance failed to put anyone on

notice that Plaintiff had a complaint about inappropriate policy-making or supervisory actions on

the part of Warden Mays, so that TDOC could address this complaint (and thereby potentially

avoid the need for a lawsuit). See id. (noting that when an employee is not identified in a grievance,

a state department of corrections is deprived of “provide fair notice . . . of the identity of the

employee implicated in the [g]rievance”).

The Court likewise rejects Plaintiff’s affirmative argument of waiver, which (as it relates

to Counts II and III) depends entirely on the argument that the Court just rejected. That is, to the

extent that there was a “final decision on the merits” of” Plaintiff’s grievance, that final decision

would not have implicated the substance of Counts II and III (as would be necessary to embrace

Plaintiff’s affirmative argument of waiver of an exhaustion defense with respect to Counts II and

III).

Accordingly, Counts II and III are dismissed due to Plaintiff’s failure to exhaust his

administrative remedies.

c. Count IV (“Retaliation in Violation of the First Amendment”) Against Lt. Stevens

In Count IV, Plaintiff alleges that Lt. Stevens retaliated against him (in violation of the First

Amendment) due to his filing of the original complaint (on October 6, 2023, very shortly before

Lt. Stevens became Plaintiff’s Case Manager). (Doc. No. 47 at ¶¶ 74-81, 51). Plaintiff further

alleges that on February 29, 2024, he was moved from the Prison to West Tennessee State

Penitentiary (and thus, it is clear, away from Lt. Stevens).

Defendants argue in effect that since Plaintiff’s retaliation claim against Lt. Stevens stem

from separate instances of alleged misconduct long post-dating the April 11, 2023 incident,

Plaintiff needed to separately exhaust his retaliation claim. Count IV. (Doc. No. 52-1 at 14). The

Court agrees, with the caveat that in lieu of showing exhaustion, Plaintiff could potentially show

that the grievance process was unavailable to him. Defendants then assert that Plaintiff—despite

knowing how to file a grievance, as evidenced by his prior filing of the April 21, 2023 grievance—

did not do so. Plaintiff responds with contentions that the opaque nature of the retaliation (which

was such that he was made aware of its occurrence only secondhand, from other persons) precluded

his ability to file a grievance because “[t]he Prison requires firm facts, dates, and names for a

grievance to be appropriate.” (Doc. No. 53 at 7).

Defendants have replied by invoking two cases from within the Sixth Circuit, where a

plaintiff’s retaliation claim failed due to the plaintiff learning of the retaliation only from other

sources rather than directly, thus (in the Court’s view) reflecting inadequate factual matter to

plausibly support the elements of a claim of retaliation. (Doc. No. 56 at 4) (citing Imburgia v.

Cruz, No. 1:11 CV 2823, 2012 WL 1035731 (N.D. Ohio Mar. 27, 2012), and Cheatham v. Benson,

No. 2:16-CV-239, 2017 WL 5150788 (W.D. Mich. Nov. 7, 2017)). The Court cannot tell why

Defendant raises these cases, but if the purpose is to argue that Plaintiff has failed to set forth

adequate factual matter to state the claim in Count IV, the Court declines to consider such argument

because it should have been raised earlier, in the memorandum (Doc. No. 52-1) in support of the

Motion.

The Court does agree with Defendants that the contentions Plaintiff makes in his Response

come from outside the operative complaint (or anything else that is properly considered along with

the operative complaint). For these reasons, they cannot be considered. Raising them later, in a

brief in opposition to a motion to dismiss, does not render them appropriate for consideration on a

Rule 12(b)(6) motion to dismiss. As both sides seek to make hay based on these contentions, the

Court will ignore them with respect to the arguments of both sides. Along the same lines, the

information on which Defendants rely on for the proposition that Plaintiff did not file a grievance

with respect to Lt. Stevens’s alleged retaliation— the declaration filed (with exhibits thereto) at

Docket No. 52-2 cannot be and will not be considered. This declaration, and the exhibits thereto,

are simply not part of the Amended Complaint, not referred to in the Amended Complaint, and not

central to the Amended Complaint. So the declaration cannot be considered. And the Amended

Complaint nowhere indicates that Plaintiff did not grieve the alleged retaliation. And so on the

instant Motion, for procedural reasons the Court is not free to ignore, the Court will not consider

the alleged fact—which the Court realizes is not disputed by Plaintiff—that Plaintiff did not grieve

the alleged retaliation.

With these contentions all properly disregarded, the question becomes much simpler: in

light of the principles discussed above regarding dismissal for failure to exhaust based on a Rule

12(b)(6) motion, is dismissal of Count IV appropriate for failure to exhaust? The answer is no.

Based on what the Court can consider on a Rule 12(b)(6) motion, the Court cannot say on the

instant Motion that Plaintiff never exhausted his retaliation complaint—let alone say that any

failure to exhaust that did occur is not excused due to the alleged unavailability of administrative

(grievance) remedies. It conceivably could turn out that the Court can say these things later, but it

cannot do so now.

Being unchallenged on any other basis, Count IV survives the instant Motion.

IV. Failure to State a Claim Against Warden Mays

Alternatively, Defendants argue that, aside from concerns about Plaintiff’s failure to

exhaust the internal grievance process, Plaintiff has not stated a valid claim against Warden Mays

in either Count II (Improper Policy Making) or Count III (“Supervisory Liability – Failure to

Train/Supervise”). The Court need not address this argument, given the dismissal of Counts II and

III for failure to exhaust administrative remedies.

CONCLUSION

For the reasons stated herein, Defendants’ Motion is GRANTED IN PART AND

DENIED IN PART. That is, it is GRANTED with respect to Counts II and III based on failure to

exhaust administrative remedies, and DENIED with respect to Counts I and IV.

And for the reasons stated above, the Court has determined that Plaintiff has not implicated

TDOC, or Defendant Mays in his official capacity, in any claims, and has dismissed all claims

against Warden Mays in his individual capacity. Therefore, the Clerk is DIRECTED to terminate

both TDOC and Warden Mays as Defendants. And consistent with the first footnote herein, the

Clerk is directed to terminate Steven White as a Defendant.

IT IS SO ORDERED.

ELI RICHARDSON

UNITED STATES DISTRICT JUDGE