Cobble

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT CHATTANOOGA

GARY ALAN MONTGOMERY, )

)

Plaintiff, )

)

v. ) No. 1:25-CV-309-DCLC-CHS

)

BRENT COBBLE, TENNESSEE )

DEPARTMENT OF CORRECTION, )

BLEDSOE COUNTY CORRECTIONAL )

COMPLEX, BLEDSOE COUNTY )

SHERIFF’S DEPARTMENT, OFFICER )

ROSARIO, CAPTAIN MUSSAREA, )

INMATE ANTHONY HENDLEY, and )

UNKNOWN LIGHT SKINNED BLACK )

MALE INMATE ACCUSED, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff, a Tennessee Department of Correction (“TDOC”) prisoner housed in the Bledsoe

County Correctional Complex (“BCCX”), filed a pro se complaint for violation of 42 U.S.C. §

1983 arising out of an attack on him by two inmates [Doc. 1] and a motion for enlargement of time

to file in forma pauperis documents [Doc. 6]. As Plaintiff has now paid the filing fee, his motion

regarding in forma pauperis documents [Id.] is DENIED as moot. Also, for the reasons below,

this action will be DISMISSED.

I. LEGAL STANDARD

District courts must screen prisoner complaints and dismiss any claims that are frivolous

or malicious, fail to state a claim for relief, or are against a defendant who is immune. See 28

U.S.C. §§ 1915(e)(2)(B) and 1915A; Benson v. O’Brian, 179 F.3d 1014 (6th Cir. 1999). The

dismissal standard the Supreme Court set forth 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 [at

screening] 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). Thus, to survive an initial review, a prisoner

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

is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).

Formulaic and conclusory recitations of the elements of a claim do not state a plausible

claim for relief. Id. at 681. Likewise, an allegation that does not raise a plaintiff’s right to relief

“above a speculative level” fails to state a plausible claim. Twombly, 550 U.S. at 570. But courts

liberally construe pro se pleadings and hold them to a less stringent standard than lawyer-drafted

pleadings. Haines v. Kerner, 404 U.S. 519, 520 (1972).

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

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

II. ALLEGATIONS

After Defendant Rosario allowed two inmates, specifically Defendants Hendley and

“Unknown Light Skinned Black Inmate” (“Defendant Unknown”), to enter Plaintiff’s cell, the

inmates attacked Plaintiff and took his commissary items [Doc. 1 p. 2, 3, 8–9]. Plaintiff seeks to

hold Defendant Rosario liable for this attack because this Defendant “work[ed] in tandem with his

fellow bad actors . . . [and] participat[ed] in the bad acts with the assailants and robbers” [Id. at 3].

Plaintiff also seeks to hold Defendant Rosario liable by asserting that he failed to “provide and

maintain a safe living environment . . . [by] intentionally letting in the assailants” [Id.].

Plaintiff adds that Defendant BCCX Warden Cobble is liable for “his staff’s actions” and

his subsequent failure to “remedy the situation” by providing Plaintiff access to law enforcement,

investigating the incident, or reporting the incident to his superiors [Id.].

Plaintiff seeks to hold Defendant TDOC liable under § 1983 for its alleged failure to

properly train its officers regarding providing a safe environment or initiating “charges and further

process,” including investigations after criminal acts in a manner that is negligent [Id.].

As to Defendant Mussarea, Plaintiff states that this Defendant arrested him and placed him

in handcuffs after the incident, rather than initiating an investigation and recovering Plaintiff’s

personal property [Id.]. Plaintiff further claims that this Defendant likewise failed to contact law

enforcement or otherwise allow Plaintiff to seek prosecution of his attackers and failed to provide

Plaintiff the name of his attackers [Id.].

Plaintiff also claims that he contacted the Bledsoe County Sheriff to investigate the

incident, but the Sheriff did not initiate that investigation or otherwise contact Plaintiff [Id. at 4].

Plaintiff has sued BCCX Warden Brent Cobble, the TDOC, the BCCX, the Bledsoe County

Sheriff’s Department, BCCX Officer Rosario, BCCX Captain Mussarea, and Inmates Hendley and

“Accused Unknown Light Skinned Black Male” [Id. at 1, 2]. Plaintiff requests declaratory and

injunctive relief, compensatory damages, exemplary damages, and special damages [Id. at 4].

III. ANALYSIS

A. TDOC, BCCX, and Bledsoe County Sheriff’s Department

First, neither the TDOC, the BCCX, or the Bledsoe County Sheriff’s Department is an

entity subject to suit under § 1983. See Hix v. Tenn. Dep’t of Corr., 196 F. App’x 350, 355 (6th

Cir. 2006) (holding TDOC is equivalent of the “State” and not a “person” within meaning of §

1983); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64 (1989) (providing that “a State is not

a person within the meaning of § 1983”; Anciani v. Davidson Cnty. Sheriff Office, No. 3:19-cv-

169, 2019 WL 1002503, at *2 (M.D. Tenn. Feb. 28, 2019) (“It is well established that in Tennessee

federal courts, a sheriff’s office or police department is not a ‘person’ subject to suit under 42

U.S.C. §1983.” (citation omitted)).

B. Defendants Hendley and Unknown Inmate

As discussed above, in his complaint, Plaintiff seeks relief under § 1983 based on his

allegations that two inmates — Defendants Hendley and Unknown Inmate, attacked and robbed

him after Defendant Rosario allowed these inmates to enter his cell [Id. at 2–3, 8–9]. That said,

Plaintiff provides no facts from which the Court can plausibly infer that either Defendant Hendley

or Defendant Unknown Inmate was acting under color of state law in attacking or robbing him.

While Plaintiff makes general statements asserting that these inmates’ assault and/or robbery of

him was pursuant to a conspiracy and/or “in tandem” with Defendant Rosario, Plaintiff provides

no facts to support these allegations, and they are therefore conclusory and fail to state a plausible

§ 1983 claim. Iqbal, 556 U.S. at 678; Gutierrez v. Lynch, 826 F.2d 1534, 1538–39 (6th Cir. 1987)

(providing that conspiracy claims must be pled with some specificity and “vague and conclusory

allegations unsupported by material facts will not be sufficient to state such a claim”).

C. Official Capacity § 1983 Claims1

Plaintiff’s official capacity claims against the individual Defendants are against the TDOC,

as it is Defendants’ employer. See Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“an official-

capacity suit is, in all respects other than name, to be treated as a suit against the entity”). But as

set forth above, Defendant TDOC is not an entity subject to suit under § 1983.

1 While it is Plaintiff’s duty to plead the capacity in which he is suing Defendants, Wells v.

Brown, 891 F.2d 591, 593 (6th Cir.1989), Plaintiff does not state in his complaint whether he sues

Defendants in their individual or official capacities. The Court therefore presumes Plaintiff sued

them in their official capacities. See Whittington v. Milby, 928 F.2d 188, 193 (6th Cir.

1991). Nevertheless, the Court will also address whether Plaintiff’s complaint states a plausible

claim against the individual Defendants in their individual capacities.

D. Individual Capacity § 1983 Claims

1. Investigation and Prosecution

First, Plaintiff’s allegations that Defendants Rosario, Cobble, and Mussarea failed to

investigate the attack on him or allow him to prosecute his attackers fail to allege a plausible

constitutional violation, as Plaintiff does not have a constitutional right to an investigation or to

ensure his attackers are prosecuted. Mitchell v. McNeil, 487 F.3d 374, 378 (6th Cir. 2007) (“There

is no statutory or common law right, much less a constitutional right, to an investigation.”

(citing Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (“a private citizen lacks a judicially

cognizable interest in the prosecution or nonprosecution of another”))). Accordingly, these

allegations fail to state a claim upon which relief may be granted under § 1983.

2. Arrest and Handcuffs

Plaintiff’s only remaining allegation against Defendant Mussarea is that this Defendant

arrested him and placed him in handcuffs [Id. at 3]. But Plaintiff provides no facts about these

acts from which the Court can plausibly infer they support a § 1983 malicious prosecution claim

or otherwise violated Plaintiff’s constitutional rights. Sykes v. Anderson, 625 F.3d 294, 308–09

(6th Cir. 2010) (providing that plaintiff alleging malicious prosecution must establish that the

criminal prosecution lacked probable cause, among other things).

Moreover, to the extent that Plaintiff challenges pending charges or criminal convictions

against him due to Defendant Mussarea arresting him, the complaint does not set forth facts

suggesting that the Court could consider any such claims at this time. Plaintiff may raise his claims

challenging any pending state charges against him in that state prosecution, which would implicate

important state interests. Younger v. Harris, 401 U.S. 37, 44 (1971) (holding that federal courts

must abstain from entertaining lawsuits by plaintiffs seeking to enjoin a criminal prosecution

against them in state court where those ongoing proceedings implicate important state interests,

and the plaintiffs have an adequate opportunity to raise their challenges in that forum). Nor does

Plaintiff set forth any facts suggesting that a court has invalidated any conviction that resulted from

this arrest. Heck v. Humphrey, 512 U.S. 477, 486–87 (1994) (providing that a plaintiff cannot

obtain any monetary compensation for a criminal judgment unless he can show that the relevant

conviction or sentence “has been reversed on direct appeal, expunged by executive order, declared

invalid by a state tribunal authorized to make such determination, or called into question by a

federal court’s issuance of a writ of habeas corpus”); Wilkinson v. Dotson, 544 U.S. 74, 81 (2005)

(providing that a § 1983 action challenging an underlying conviction or sentence “is barred (absent

prior invalidation)—no matter the relief sought (damages or equitable relief), no matter the target

of the prisoner’s suit (state conduct leading to conviction or internal prison proceedings)—if

success in that action would necessarily demonstrate the invalidity of confinement or its

duration”).

3. Supervisory Liability Claims

As to Defendant Cobble, Plaintiff’s remaining allegations show that Plaintiff seeks to hold

him liable under § 1983 based on his supervisory position. But such allegations do not plausibly

allege a violation of § 1983. Frazier v. Michigan, 41 F. App’x 762, 764 (6th Cir. 2002) (providing

that “a complaint must allege that the defendants were personally involved in the alleged

deprivation of federal rights” to state a plausible § 1983 claim); Iqbal, 556 U.S. at 676 (“[O]ur

precedents establish . . . that Government officials may not be held liable for the unconstitutional

conduct of their subordinates under a theory of respondeat superior”).

4. Failure to Protect and Participation in Robbery/Attack

Plaintiff’s only remaining federal claims are that Defendant Rosario (1) failed to protect

him from the robbery and attack and/or (2) participated in the robbery or attack, seemingly through

a conspiracy. Plaintiff specifically states as follows regarding Defendant Rosario:

Officer Rosario is charged with conspiracy to assist vice lord gang members by

working in tandem with his fellow bad actors. He is also charged with participating

in the bad acts with the assailants and robbers which makes him equally culpable

for the group’s criminal conduct including; Conspiracy, Assault, Robbery, Theft,

Kidnapping, False Imprisonment, and Extortion.

Rosario also has a duty of care to provide and maintain a safe living environment.

As an Officer, Rosario’s conduct displays a failure of his duty of care he holds of

the inmates under his watch to provide that safe environment, he himself in-fact

breached that safety by letting in the assailants. It also represents intentional

misconduct and dereliction of duty charges and bringing on intentional infliction of

emotional distress and negligence in the poor performance of his duties. Knowing

his group’s actions to be felonies and not taking any action to stop it, prevent it, or

report it to a superior authority also demonstrates a charge of mispris[i]on of felony.

[Id. at 3]. Also, in the grievance Plaintiff attached to his complaint, he alleges only that Defendant

Rosario “participated” in the robbery of his food by unlocking his door and allowing the two

inmates in [Id. at 8–9].

The Court takes judicial notice that, at all times relevant to this action, Plaintiff was a

convicted prisoner.2 Thus, Plaintiff’s failure to protect claim against Defendant Rosario

falls under the Eighth Amendment. Coleman v. Hamilton Cnty. Bd. of Cnty. Commissioners, 130

F.4th 593, 599 (6th Cir. 2025) (“Corrections officers must protect convicted prisoners from harm

under the Eighth Amendment, and they must protect pretrial detainees from harm under the Due

Process Clause.”) (citation omitted). The Eighth Amendment’s prohibition on “cruel and unusual

punishment . . . imposes duties” on prison officials. Farmer v. Brennan, 511 U.S. 825, 832

(1994). One of those duties requires prison officials to “take reasonable measures to guarantee the

safety of” prisoners. Id. (quoting Hudson v. Palmer, 468 U.S. 517, 527–27 (1984)).

2 https://foil.app.tn.gov/foil/details.jsp (last visited Sept. 30, 2025).

Yet not “every injury suffered by one prisoner at the hands of another that translates into

constitutional liability for prison officials responsible for the victim’s safety.” Id. at 834. Rather,

to establish a failure-to-protect claim, “the plaintiff must show that: (1) objectively, he was

incarcerated under conditions posing a substantial risk of serious harm; and (2) the official acted

with deliberate indifference to inmate safety, meaning the official was subjectively aware of the

risk and fail[ed] to take reasonable measures to abate it.” Reedy v. West, 988 F.3d 907, 912 (6th

Cir. 2021) (citations and quotations omitted) (alteration in original).

Plaintiff provides no facts to support a plausible inference that Defendant Rosario was

aware of any risk to Plaintiff from allowing the two prisoners to enter Plaintiff’s cell. So the

complaint does not allow the Court to plausibly infer that his act of opening Plaintiff’s cell door

rose to the level of a constitutional violation.

Also, while Plaintiff seems to imply that Defendant Rosario somehow participated in the

attack and robbery underlying his complaint, Plaintiff never specifically alleges that Defendant

Rosario personally assaulted or robbed him, nor does he set forth facts allowing the Court to

plausibly infer that this occurred. And it is apparent that, if that were the case, Plaintiff would

have stated it clearly in his complaint. Scheid v. Fanny Farmer Candy, 859 F.2d 434, 437 (6th

Cir. 1988) (“when a complaint omits facts that, if they existed, would clearly dominate the case, it

seems fair to assume that those facts do not exist” (quoting O’Brien v. DiGrazia, 544 F.2d 543,

546 n.3 (1st Cir. 1976))). Instead, it is apparent from reading Plaintiff’s allegations as a whole that

Plaintiff seeks to hold Defendant Rosario liable for the acts of the two inmates who attacked and

robbed him based on the alleged “conspiracy” between Defendant Rosario and the inmates, in

support of which he also sets forth no facts, as the Court noted above. Iqbal, 556 U.S. at 678;

Gutierrez, 826 F.2d at 1538–39.

In short, the complaint provides no facts from which the Court can plausibly infer

Defendant Officer Rosario failed to protect Plaintiff from the attack on him by two inmates or

participated in any conspiracy to rob or attack Plaintiff, or that he otherwise may be liable for this

attack under § 1983.

5. State Law Claims

Because the Court dismisses Plaintiff’s federal claims, the Court will exercise its discretion

to decline to exercise supplemental jurisdiction over Plaintiff’s state-law claims by dismissing

these claims without prejudice. 28 U.S.C. § 1367(c)(3); United Mine Workers of Am. v. Gibbs, 383

U.S. 715, 726–27 (1966) (“[I]f the federal claims are dismissed before trial, . . . the state claims

should be dismissed as well.”).

IV. CONCLUSION

For the reasons set forth above:

1. Plaintiff’s motion for enlargement of time to file in forma pauperis documents

[Doc. 6] is DENIED as moot;

2. Even liberally construing the complaint for Plaintiff, it fails to state a claim upon

which relief may be granted under § 1983;

3. Accordingly, this action will be DISMISSED without prejudice pursuant to 28

U.S.C. §§ 1915(e)(2)(B) and 1915A; and

4. The Court CERTIFIES that any appeal from this action would not be taken in good

faith and would be frivolous. See Rule 24 of the Federal Rules of Appellate

Procedure.

AN APPROPRIATE JUDGMENT ORDER WILL ENTER.

SO ORDERED:

s/Clifton L. Corker

United States District Judge