Newell v. Ruth et al

Filing 3

MEMORANDUM: The Clerk of Court will be DIRECTED to send a copy of this memorandum and order to the Sheriff of Bradley County, the Custodian of Inmate Trust Fund Accounts at the Bradley County Justice Center, the Commissioner of the Tennessee Department of Corrections, the Attorney General for the State of Tennessee, and the Courts Financial Deputy, to ensure the custodian of Plaintiffs inmate trust account complies with the portion of the Prison Litigation Reform Act relating to payment of the filing fee. Signed by District Judge Harry S Mattice, Jr on 9/8/2014. (DJH, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
at CHATTANOOGA
JIMMY J. NEWELL,
Plaintiff,
v.
SHERIFF JAMES RUTH; CAPT. JON
COLLINS; LT. JOLENE HICKMAN;
SGT. LYNN ROE; QUALITY CONTROL
CORRECTIONAL HEALTHCARE, INC.
LPH BRE WOODS; DR. JERRY GURLEY;
DR. BATES; LT. ANDERSON SANDERS;
All Parties are Sued in Their Individual and
Official Capacities;
Defendants.

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No. 1:11-cv-86
Mattice/Carter

MEMORANDUM
Jimmy J. Newell (“Plaintiff”), a pro se prisoner, has filed a civil rights complaint
pursuant to 42 U.S.C. § 1983 (Court Doc. 2). Plaintiff alleges he was denied adequate
access to a law library; injured due to Defendants’ failure to properly classify and
separate dangerous offenders; sexually assaulted by an officer; denied nutritious meals;
denied medical attention; and negligently administered another inmate’s medication. In
addition, Plaintiff claims inmates are charged high prices on commissary items; charged
$2.75 each time money is put on their commissary account; have media and reading
material censored; charged high prices for telephone calls; denied a fair and impartial
tribunal when charged with violating rules; and “D-Seg” inmates are subjected to
“conditions that have a cumulative effect of cruelty[.]” (Court Doc. 2).

Plaintiff’s motion to proceed in forma pauperis will be GRANTED IN PART and
DENIED IN PART (Court Doc. 1), and for the reasons discussed below, Plaintiff’s
complaint will be DISMISSED sua sponte for failure to state a claim upon which relief
may be granted (Court File No. 2).
I.

APPLICATION TO PROCEED IN FORMA PAUPERIS
It appears from the application to proceed in forma pauperis submitted by

Plaintiff that he lacks sufficient financial resources at the present time to pay the
required filing fee of $350.00.

Plaintiff, however, is not relieved of the ultimate

responsibility of paying the $350.00 filing fee. Plaintiff’s motion to proceed in forma
pauperis is GRANTED IN PART and DENIED IN PART (Court Doc. 1). It is GRANTED
to the extent that Plaintiff can file his complaint without prepayment of the full filing fee
but DENIED to the extent he will not be excused from paying the filing fee. Rather, the
Court ASSESSES the entire filing fee and permits Plaintiff to pay the filing fee in
installments in accordance with the Prison Litigation Reform Act of 1995, Pub. L. No.
104-134, 28 U.S.C. § 1915(b)(1); see McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th
Cir. 1997), abrogated on other grounds, Jones v. Bock, 549 U.S. 199 (2007) and
LaFountain v. Henry, 716 F.3d 944, 951 (6th Cir. 2013). Plaintiff SHALL pay the full
filing fee of three-hundred and fifty dollars ($350.00) pursuant to Prisoner Litigation
Reform Act, Pub. L. 104-134, 110 Stat. 1321, codified in 28 U.S.C. § 1915.
Pursuant to 28 U.S.C. § 1915(b)(1)(A) and (B), the custodian of Plaintiff’s inmate
trust account at the institution where he now resides SHALL submit to the Clerk, United
States District Court, 900 Georgia Ave., Room 309, Chattanooga, Tennessee 37402, as
an initial partial payment, whichever is the greater of
2

(a)

twenty percent (20%) of the average monthly deposits to
Plaintiff's inmate trust account; or

(b)

twenty percent (20%) of the average monthly balance in
Plaintiff's inmate trust account for the six-month period
preceding the filing of the complaint.

Thereafter, the custodian shall submit twenty percent (20%) of Plaintiff's
preceding monthly income (or income credited to his trust account for the preceding
month), but only when such monthly income exceeds $10.00, until the full filing fee of
$350.00 as authorized under 28 U.S.C. § 1914(a) has been paid to the Clerk. 28
U.S.C. § 1915(b)(2).
The Clerk of Court will be DIRECTED to send a copy of this memorandum and
order to the Sheriff of Bradley County, the Custodian of Inmate Trust Fund Accounts at
the Bradley County Justice Center, the Commissioner of the Tennessee Department of
Corrections, the Attorney General for the State of Tennessee, and the Court’s Financial
Deputy, to ensure the custodian of Plaintiff’s inmate trust account complies with the
portion of the Prison Litigation Reform Act relating to payment of the filing fee.
The agency having custody of Plaintiff SHALL collect the filing fee as funds
become available. This order shall become a part of Plaintiff’s file and follow the inmate
if he is transferred to another institution. The agency having custody of Plaintiff SHALL
continue to collect monthly payments from Plaintiff’s prisoner account until the entire
filing fee of $350.00 is paid.
Plaintiff will be ORDERED to notify this Court and Defendants or Defendants’
attorney of any change of address if he is transferred to another institution, and to
provide the prison officials at any new institution with a copy of this order. Failure of
3

Plaintiff to notify this Court of an address change and/or the new prison officials of this
order and outstanding debt, will result in the imposition of appropriate sanctions against
Plaintiff without any additional notice or hearing by the Court.
II.

SCREENING
The Court screens the complaint to determine whether it should be dismissed as

frivolous, malicious, or for failure to state a claim. 28 U.S.C. § 1915(e)(2) and § 1915A.
When performing this task, the Court bears in mind that the pleadings of pro se litigants
must be liberally construed and “held to less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v.
Gamble, 429 U.S. 97, 106 (1976)). Nevertheless, the complaint must be sufficient “to
state a claim to relief that is plausible on its face,” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007), which simply means the factual content pled by a plaintiff must
permit a court “to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
III.

FACTS
Plaintiff’s complaint consists of a laundry list of general complaints about the

Bradley County Justice Center along with a few complaints about his specific conditions
of confinement. The Court liberally construes the facts stated in the complaint in the
light most favorable to Plaintiff.

The following facts are gleaned from Plaintiff’s

complaint:
1.

Plaintiff’s requests for access to legal books and papers were denied by

Lt. Anderson Sanders.

4

2.

Plaintiff requested to be housed away from dangerous inmates. On March

8, 2011, another inmate, James May (“May”), attempted to stab Plaintiff in the neck
repeatedly.
3.

Officer Stevenson1 pinched Plaintiff on the behind “during a meal pass.”

4.

Plaintiff “has suffered from drastic weight loss and constant hunger due to

the poor nutritional value of food served.”
5.

The commissary charges $1.00 for Ramen Noodles, $1.60 for a roll of

toilet paper, and $2.75 each time an inmate deposits money in his commissary account.
6.

The facility censors all media and reading material.

7.

Telephone calls costs $1.50 for a ten minute local call and the contractor

charges a $7.00 convenience fee to add funds to a prepaid account.
8.

Inmates are denied a fair and impartial tribunal when they violate facility

9.

Inmates in “D-Seg” are subjected to cruel conditions.

rules.

a.

“D-Seg” meals are served on Styrofoam trays with smaller portions.

b.

Personal hygiene items are allowed only once per day during “out

c.

Pen, paper, and legal papers can only be accessed during this “out

time.”

time[]” and “[a]ccess to counsel is inhibited” (Doc. 2, p. 7).
d.

Exercise is allowed during this “out time” but under restraint of

handcuffs and leg shackles.

1

Plaintiff did not identify Officer Stevenson as a defendant in the style of his case or in the “Parties”
section of his complaint where he listed all the defendants.

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e.

Telephone use is permitted during this “out time” so inmates have

to decide what to do during this “out time” which is scheduled to last an hour “but
seldom exceeds 20 minutes.”
f.

“D-Seg” prohibits reading material.

g.

“D-Seg” inmates are confined for approximately 23 hours a day,

receiving only one hour or less of “out time.”
h.

Inmates sentenced to “D-Seg” for violating institutional rules are

given a specific sentence, but because they have to wait for the “Captain’s Review”
before being returned to the general population, they remain on “D-Seg” longer than
their original “D-Seg” sentence.
10.

On February 28, 2011, Plaintiff suffered “an injury requiring medical

attention” but he did not receive any medical attention until later that day or the next day
when he received ibuprofen. On March 1, 2011, the day after he suffered the injury, he
was taken to the infirmary but denied any medication until “’med pass’ at 19:00 p.m.”
11.

On March 28, 2011, Plaintiff was “negligently given another inmate’s

medications[,]” and suffered an adverse reaction.
IV.

DISCUSSION
A.

Official Capacity Claims

Plaintiff has sued the Defendants in this case in both their official and individual
capacities. A claim against Defendants in their official capacities is treated as an action
against the governmental entity. Hafer v. Melo, 502 U.S. 21, 25 (1991); Barber v. City
of Salem, Ohio, 953 F.2d 232, 237 (6th Cir. 1992). Because Defendants have been
sued in their official capacities as employees of Bradley County, Tennessee, the Court
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must proceed as if Plaintiff has in fact sued Bradley County. Therefore, in order to
prevail, Plaintiff must demonstrate that the alleged violation of his constitutional rights
resulted from acts representing official policy or custom adopted by Bradley County.
Monell v. Dept. of Social Services of the City of New York, 436 U.S. 658, 690-91 (1978);
Leach v. Shelby County Sheriff, 891 F.2d 1241, 1245-46 (6th Cir. 1989), cert. denied,
495 U.S. 932 (1990).
In order to prevail in an action against a defendant in his official capacity, a
plaintiff must show, first, that he has suffered harm because of a constitutional violation
and second, that a policy or custom of the entity--in this case, Bradley County--caused
the harm. See Collins v. Harker Heights, Tex., 503 U.S. 115, 120 (1992). Plaintiff must
identify the policy, connect the policy to the county itself, and show that the particular
injury was incurred because of the execution of that policy; all of which Plaintiff has
failed to do. See Garner v. Memphis Police Dept. 8 F.3d 358, 363-64 (6th Cir. 1993),
cert. denied, 510 U.S. 1177 (1994) (citation omitted).
Plaintiff does not allege that the violation of his rights resulted from any policy or
custom on the part of Bradley County.

Although Plaintiff has made some general

complaints about the policies of the Bradley County Justice Center, he has not provided
any details to substantiate his general complaints, nor has he identified any policy,
connected the policy to Bradley County, and shown that any alleged injury was incurred
because of the execution of a Bradley County policy. Plaintiff’s failure to demonstrate
that the alleged violations of his constitutional rights resulted from acts representing
official policy or custom adopted by Bradley County is fatal to his complaint, as it has
resulted in his failure to state a constitutional violation against the County.
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Moreover, as explained below, Plaintiff has failed to show he suffered any harm
because of a constitutional violation. Therefore, to the extent Defendants are sued in
their official capacities, they are entitled to judgment as a matter of law.
B.

Individual Capacity Claims

Plaintiff has also sued the Defendants in their individual capacities. Plaintiff has
raised ten claims along with several sub-claims, which the Court addresses below.
1.

Law Library

Plaintiff contends the Bradley County Justice Center fails to provide adequate
access to a law library. Specifically, Plaintiff made “several requests to access legal
books and papers in an effort to assist or prepare a legal defense[,]” but Lt. Anderson
Sanders refused the request, explaining that Bradley County Justice Center does not
have a law library (Doc. 2).
Prisoners have a constitutional right of access to the courts. Lewis v. Casey, 518
U.S. 343 (1996). An inmate who is claiming he was denied access to court, however,
must “demonstrate that the alleged shortcomings in the library or legal assistance
program hindered his efforts to pursue a legal claim.” Id. at 351. Plaintiff has not made
a showing that he has been hindered in his effort to pursue a non-frivolous legal claim.
See Hadix v. Johnson, 182 F. 3d 400, 404 (6th Cir. 1999) (“An inmate must
demonstrate an ‘actual injury,’ which, the Court said, cannot be shown ‘simply by
establishing that his prison’s law library or legal assistance program is sub-par in some
theoretical sense.’”) (quoting Lewis v. Casey, 518 U.S. 343, 351 (1996).

To

demonstrate the lack of access has hindered his efforts to pursue a legal claim, an
inmate must establish the prison official impeded his pursuit of a non-frivolous post8

conviction or civil rights action, i.e., a denial or dismissal of a direct appeal, habeas
petition, or civil rights case seeking to vindicate basic constitutional rights. Lewis v.
Casey, 518 U.S. at 348-354.
Plaintiff’s allegation that he has been denied access to a law library lacks
sufficient specificity to give rise to a constitutional deprivation. Plaintiff has failed to
allege any prejudice to this litigation, a direct appeal, a habeas petition, or any other civil
rights action under 42 U.S.C. § 1983 to “vindicate basic constitutional rights.” Lewis v.
Casey, 518 U.S. at 354; Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996) (“An inmate
who claims his access to the courts was denied fails to state a claim without any
showing of prejudice to his litigation”). Therefore, Plaintiff has failed to demonstrate a
constitutional violation.

Accordingly, Plaintiff’s claim that he was not provided with

adequate access to a law library will be DISMISSED for failure to state a claim upon
which relief may be granted. 28 U.S.C. §§1915(e) and 1915A.
2.

Deliberate Indifference to Safety

Next Plaintiff claims the Bradley County Justice Center does not classify violent
and dangerous inmates and house them separately. Plaintiff alleges he requested to be
housed separately from inmates with aggravated offenses. Plaintiff further alleges that
on March 8, 2011, inmate May attempted to repeatedly stab him in the neck which
resulted in Plaintiff being traumatized and placed in fear.
The Eighth Amendment “requires that inmates be furnished with the basic human
needs, one of which is reasonable safety.” Helling v. McKinney, 509 U.S. 25, 33 (1993).
Thus, it is well established that prison officials have a constitutional duty to protect

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prisoners from violence at the hands of their fellow inmates. Farmer v. Brennan, 511
U.S. 825, 833 (1994).
An Eighth Amendment claim consists of both an objective and subjective
component. Id. at 834. Therefore, to state a failure to protect claim against a prison
official under the Eighth Amendment, an inmate must demonstrate he is incarcerated
under prison conditions that pose a substantial risk of serious harm and that the prison
official had the culpable state of mind of deliberate indifference to the inmate’s health or
safety. Id. at 838. A sufficiently serious deprivation satisfies the objective component,
and a “sufficiently culpable state of mind” satisfies the subjective component. Id. at 834.
Nevertheless, every injury suffered by a prisoner at the hands of another prisoner does
not always translate into a constitutional liability for the prison officials responsible for
the victim’s safety. Id.
In prison condition cases, to satisfy the culpable state of mind component, a
prisoner must demonstrate the prison official acted with deliberate indifference to the
inmate’s safety.

Id.

“[D]eliberate indifference describes a state of mind more

blameworthy than negligence.“ Id. at 835. The Supreme Court has explained that
“acting or failing to act with deliberate indifference to a substantial risk of serious harm
to a prisoner is the equivalent of recklessly disregarding that risk.” Id. The Court further
explained “a prison official cannot be found liable under the Eighth Amendment for
denying an inmate humane conditions of confinement unless the official knows of and
disregards an excessive risk to inmate health or safety; the official must both be aware
of facts from which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.” Id. at 837.
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Plaintiff’s factually unsupported argument, from which he presumably expects the
Court to infer that the failure to classify dangerous criminals resulted in the attempted
stabbing of him, is tenuous at best. Plaintiff’s general and factually unsupported claim
fails to allege either the objective or subjective component of an Eighth Amendment
claim that he was housed under conditions posing a substantial risk of serious harm.
First, Plaintiff does not identify the prison official to whom he allegedly requested “to be
classified away from inmates with aggravated offenses” or allege any named Defendant
possessed the culpable state of mind. Consequently, Plaintiff presents nothing from
which the Court may even infer one of the named Defendants actually knew of a
substantial risk to Plaintiff’s safety and failed to respond reasonably. Therefore, he has
failed to meet the subjective component of an Eighth Amendment violation.
Nevertheless, even if the Court presumes Plaintiff is referring to the named
Defendants, his bald claims that the Bradley County Justice Center does not classify
violent and dangerous inmates into separate housing and he was a victim of an
attempted stabbing are factually insufficient to establish Plaintiff was housed in
conditions posing a substantial risk of serious harm to him.
Even assuming the Bradley County Justice Center’s classification policy or lack
thereof ignores an obvious risk to the safety of inmates detained in the jail, there are no
factual allegations sufficient to support Plaintiff’s claim that this lack of policy resulted in
the alleged attempted stabbing. More specifically, Plaintiff has alleged no facts from
which the Court could reasonably infer that the Bradley County Justice Center’s lack of
a classification policy resulted in May’s attempt to stab Plaintiff. This is so because
Plaintiff’s claim is factually insufficient. Plaintiff’s failure to identify the crimes for which
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he and Mays were incarcerated prevents the Court from reasonably inferring he was a
non-violent criminal housed in a violent-criminal section of the Justice Center.

In

addition, there is nothing in the record indicating May posed a risk to him before the
alleged attempted attack, or that any jail official was aware of and disregarded May’s
presumed violent propensities. Consequently, there is nothing before the Court which
permits it to reasonably link the attack on Plaintiff to any supposed flaw in the Bradley
County Justice Center’s classification policy.
In sum, Plaintiff’s failure to identify the crimes for which he and May’s were
incarcerated, the location of the altercation, or any details surrounding the alleged
attempted stabbing, is fatal to this claim. There simply is nothing before the Court from
which it can infer that May was the aggressor, charged with an aggravated offense, and
improperly housed in close proximity to Plaintiff, and that the lack of a classification
policy exposed inmates like Plaintiff to a serious risk of harm. Finally, as previously
noted, there are no facts indicating that any named Defendant knew of and disregarded
an excessive risk to Plaintiff’s safety.
Accordingly, because Plaintiff has not sufficiently alleged an Eighth Amendment
claim that he was not protected from attempted violence at the hands of another
prisoner, this claim will be DISMISSED for failure to state a claim upon which relief may
be granted.
3.

Sexual Contact

Plaintiff claims Officer Stevenson pinched him on the behind “during a meal
pass[,]” which he interpreted as sexual provocation (Doc. 2, p. 4). Plaintiff alleges he
suffered emotional distress.
12

The Sixth Circuit has held that minor isolated incidents of sexual touching
coupled with occasional offensive sexual remarks do not rise to an Eighth Amendment
violation.

Jackson v. Madery, 158 Fed.Appx. 656 661 (6th Cir. 2005) (rubbing and

grabbing buttocks in a degrading and humiliating manner did not rise to constitutional
violation, as it was isolated, brief, and not severe); Johnson v. Ward, 215 F.3d 1326 (6th
Cir. May 11, 2000), available at 2000 WL 659354, at *1 (groping of buttock did not meet
Eighth Amendment objective component).
Aside from the fact that Officer Stevenson is not named as a defendant in his
complaint, Plaintiff, without providing any facts surrounding the alleged incident, has
asserted no more than an isolated minor offensive touching. While such behavior is
condemned if true, it does not rise to the level of a constitutional violation i.e., Plaintiff’s
right to be free from cruel and unusual punishment.

See Tuttle v. Carroll County

Detention Center, No. 10-5693, 2012 WL 4215747, at *1 (6th Cir. Sept. 21, 2012) (“His
bare-bones allegation that the female deputy ‘grabbed my privates and squeezed them
really hard” is simply too subjective and vague to state an Eighth Amendment
violation.”) (emphasis in original).
Accordingly, Plaintiff’s claim that Officer Stevenson pinched his behind, even if
true, does not state a constitutional violation and therefore will be DISMISSED.
4.

Alleged Lack of Nutritious Meals

Plaintiff claims he has suffered from “drastic weight loss and constant hunger due
to the poor nutritional value of the food served.”

(Doc. 2).

In addition, Plaintiff

complains that the potatoes and rice are often undercooked and meat is rarely served.

13

As previously, discussed, inmates alleging an Eighth Amendment violation based
on prison conditions must demonstrate that prison officials were deliberately indifferent
to their health or safety by subjecting them to a substantial risk of serious harm. Farmer
v. Brennan, 511 U.S. 825, 834 (1994). The deprivation alleged must objectively be
sufficiently serious so as to result in a denial of the “minimal civilized measures of life’s
necessities.” Id. at 834 (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Thus,
the deprivation of life’s necessities, such as food or water, can constitute a claim under
the Eighth Amendment. See Dellis v. Corrections Corp. of America, 257 F.3d 508, 512
(6th Cir. 2001).
In proving the objective component, an inmate must establish some degree of
actual or potential injury, and that “society considers the risks that the prisoner
complains of to be so grave that it violates contemporary standards of decency to
expose anyone unwillingly to such a risk.” Helling v. McKinney, 509 U.S. 25, 36 (1993)
(emphasis in original). In other words, here, Plaintiff must show that the diet which he
was provided “is not one that today’s society chooses to tolerate.” Id. To prove the
subjective component, a prisoner must demonstrate the prison official was aware of and
disregarded the excessive risk to inmate health or safety.
When it comes to meals, complaints about the preparation or quality of prison
food generally do not amount to an Eighth Amendment violation.

Rather, a

constitutional violation can be established with proof that the meals were insufficient to
maintain normal health. Cunningham, v. Jones, 567 F.2d 653, 659-660 (6th Cir. 1977).
Here, Plaintiff complains the meals are not nutritionally balanced but fails to
provide a description of the meals to support his bald claim. In addition, he complains
14

that he lost weight but fails to identify his starting and present weight. Finally, Plaintiff
alleges the deficiency in the diet has taken a physical toll on his health but fails to
identify even one physical ailment that he has suffered as a result of the alleged
deficient diet.
Because Plaintiff failed to describe the types of food and portions served, he has
failed to sufficiently allege his prison meals were nutritionally insufficient to sustain
normal health.

Indeed, Plaintiff has not shown that he was substantially deprived of

food or shown the type of significant weight loss which may be an indication of
inadequate nutrition. Ward v. Gooch, 2010 WL 4608292, *6 (E.D.Ky. Nov. 5, 2012)
(claim that inmate lost over 60 lbs. and was fed 200 to 700 calories a day for almost a
year, losing over 60 lbs. sufficiently alleged a claim).
Plaintiff’s unverified complaint which is lacking in specific facts concerning his
alleged weight loss and the alleged non-nutritious prison diet fails to allege an
objectively sufficiently serious deprivation. Plaintiff’s “’naked assertion[s]’ devoid of
‘further factual enhancement[,]’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557 (2007), are not sufficient to support
an Eighth Amendment claim. Moreover, Plaintiff does not allege that any of the named
Defendants possessed the requisite culpability.

Accordingly, Plaintiff’s factually

unsupported allegations that he was denied nutritious meals will be DISMISSED for
failure to state a claim upon which relief may be granted.
5.

Commissary Items

Plaintiff generally complains that commissary items are overpriced, and
specifically objects to the $1.00 charge for Ramen Noodles and the $1.60 charge for a
15

roll of toilet paper.2 In addition, Plaintiff complains that when money is placed in an
inmate’s commissary account, there is a $2.75 fee for the deposit.
Plaintiff cites to no provision of the United States Constitution as the basis for
these claims and, indeed, these claims simply do not state a claim of constitutional
magnitude. See French v. Butterworth, 614 F.2d 23, 25 (1st Cir. 1980) (“We also reject
French’s contention that he and fellow inmates have a constitutionally protected interest
in buying food as cheaply as possible”); see also Thompson v. Gibson, 289 F.3d 1218,
1222 (10th Cir. 2002) (“[T]here is no constitutional right to purchase food from the
canteen”). Commissary pricing does not implicate constitutional concerns. Tokar v.
Armontrout, 97 F.3d 1078, 1083 (8th Cir. 1996) (“[W]e know of no constitutional right of
access to a prison . . . snack shop.”); Dowdy v. Albemarle Charlottesville Regional Jail,
2011 WL 5075089 (W.D.Va. Oct. 25, 2011) (complaint of price gouging including $1.00
for packet of Ramen Noodles failed to state a claim), Bennett v. Sheahan, 1999 WL
967534, *4 (N.D.Ill., Oct. 5, 1999) (“Commissary prices implicate no constitutional
right”).
In sum, commissary access is a privilege, not a right, and these allegations fail to
state a cognizable constitutional claim for relief under 42 U.S.C. § 1983. Consequently,
Plaintiff’s complaints about the commissary, its prices, and charge to place money in an
inmates’ account do not raise claims of constitutional violations. If Plaintiff does not
wish to pay the complained of amounts, he should not patronize the commissary.

2

Plaintiff alleges inmates are issued inadequate amounts of toilet paper and then told to buy extra
at the commissary for $1.60 per roll. Plaintiff’s bald claim that inmates are issued inadequate amounts of
toilet paper insufficiently alleges a denial of the “minimal civilized measure of life’s necessities,” Rhodes
v. Chapman, 452 U.S. 337, 347 (1981), and therefore, does not state a constitutional violation.

16

Accordingly, because Plaintiff has no constitutional right of access to the
commissary, his claims attacking their prices and fees are not of constitutional
significance and will be DISMISSED for failure to state a claim upon which relief may be
granted.
6.

Censorship

Plaintiff’s censorship claim is confusing, if not contradictory.

First, Plaintiff

complains that “[t]he facility censors all outside media.” (Doc. 2). Then, Plaintiff alleges
“T.V.’s are turned off for certain broadcasts. Some channels are disallowed. Articles are
removed from newspapers. All books and magazines are refused as oversize mail.”
(Doc. 2).
Although inmates have a First Amendment right to information while in prison,
this right is not without limits. Prison regulations may constitutionally impinge on this
right as long as the regulations are “reasonably related to legitimate penological
interests.”

Turner v. Safley, 482 U.S. 78, 89 (1987).

Thus, “restrictive prison

regulations are permissible if they are reasonably related to legitimate penological
interest, and are not an exaggerated response to such objectives.” Beard v. Banks, 548
U.S. 521, 528 (2006) (internal punctuation and citations omitted).
Here, however, Plaintiff’s factually unsupported claim of unconstitutional
censorship, taken as true, is not sufficient to state a First Amendment violation. Plaintiff
has not specifically described anything that has been censored or alleged he has been
subjected to censorship, i.e., denied actual books, magazines, or a broadcast. These
deficiencies in Plaintiff’s complaint are fatal to his claim.

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Although the Court recognizes pro se pleadings are to be held to a less stringent
standard than pleadings drafted by lawyers, Haines v. Kerner, 404 U.S. 519, 520-21
(1972), the Court is not required to create a claim for a pro se plaintiff. To require
otherwise, “would not only strain judicial resources by requiring [district] courts to
explore exhaustively all potential claims of a pro se plaintiff, but would also transform
the district court from its legitimate advisory role to the improper role of an advocate
seeking out the strongest arguments and most successful strategies for a party.”
Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Here, Plaintiff has failed to allege that his constitutional rights have been violated
as he has not alleged any of his mail was censored, identified any of the alleged
censored items, or set forth any facts indicating that any of the named defendants were
directly involved in or personally responsible for the alleged violation of his constitutional
rights. Plaintiff’s factually unsupported claims are overbroad and vague and fail to raise
a cognizable constitutional claim. Accordingly, Plaintiff’s deficient censorship claim will
be DISMISSED for failure to raise a claim upon which relief may be granted.
7.

Telephone Calls

Next, Plaintiff claims telephone calls are overpriced and too restricted. Plaintiff
complains that only collect calls are allowed from the facility to residential phone
numbers and “[a]ll other phone numbers to cellular & cable companies are blocked.”
Plaintiff states that a pre-paid account may be established but to do so, inmates are
charged “collect” rates i.e., $1.50 for a ten minute local call.3 Plaintiff complains that
3

The rate of $1.50 for a ten (10) minute phone call is “not so out-of-line with normal phone rates as
to be unconscionable.” See Carter v. O’Sullivan, 924 F.Supp. 903, 911 (C.D. Ill. 1996) ($3.20 a minute
for a phone call from Illinois to Florida was not unconscionable and nothing precluded prisoner from
writing to save money) aff’d, 124 F.3d 203 (7th Cir. June 30, 1997), available at 1997 WL 374681.

18

inmates are unable to access competitive carriers with lower prices and alleges Sheriff
Jim Ruth receives large refund checks for the exclusive contract.

Finally, Plaintiff

complains that the contractor charges a $7.00 convenience fee to add funds to a
prepaid account.
While prisoners retain the right to communicate with friends, family, and counsel
while in prison, they do not have a right to unlimited telephone calls. See Washington v.
Reno, 35 F.3d 1093, 1099 (6th Cir. 1994). “Instead, a prisoner’s right to telephone
access is subject to rational limitations in the face of legitimate security interests of the
penal institution. The exact nature of telephone service to be provided to inmates is
generally to be determined by prison administrators, subject to court scrutiny for
unreasonable restrictions.” Id. (internal punctuation and citations omitted).

In addition,

there is no authority for the proposition that prisoners are entitled to a specific rate for
their telephone calls. See Boyer v. Taylor, 2007 WL 2049905, *9 (D.Del., July 16,
2007).

As the Supreme Court explained in Overton v. Bazzetta, 539 U.S. 126, 132

(2003), a case where it rejected a First Amendment challenge to the prison’s denial of
visitation, some curtailment of the freedom to associate with family and friends is
expected in the prison setting.
The very object of imprisonment is confinement. Many of the liberties and
privileges enjoyed by other citizens must be surrendered by the prisoner.
An inmate does not retain rights inconsistent with proper incarceration.
And, as our cases have established, freedom of association is among the
rights least compatible with incarceration. Some curtailment of that
freedom must be expected in the prison context.
....
The burden . . . is not on the State to prove the validity of prison
regulations but on the prisoner to disprove it.

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Id. at 131 (internal citations omitted).

Thus, by analogy, some curtailment of an

inmate’s right to associate with friends, family members, and counsel by telephone is
expected in prison.
Here, Plaintiff has not provided any information from which the Court could even
infer the Bradley County Justice Center’s regulations pertaining to phone calls infringe
upon his constitutional right to communicate with family, friends, and counsel; Plaintiff
makes no such allegation. Rather, Plaintiff complains generally about the available
phone service and associated costs, but he does not claim his right to communicate
with family, friends, and counsel was violated. Thus, Plaintiff’s complaint about the
amount inmates are charged for making phone calls fails to establish a constitutional
violation of his right to communicate with family, friends, and counsel. Moreover, it does
not appear that Plaintiff can complain his constitutional rights were violated because if
Plaintiff does not wish to pay the costs to make telephone calls, he is still free to contact
family, friends, and counsel through written means of communication.
Consequently, Plaintiff’s claims fail to demonstrate the current inmate telephone
system and policies in effect at the Bradley County Justice Center unreasonably restrict
or impair his constitutional right to communicate with family, friends, and counsel.
Accordingly, absent a violation of a constitutional right, Plaintiff’s claim that telephone
calls are overpriced and too restricted will be DISMISSED for his failure to state a viable
claim under 42 U.S.C. § 1983.

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8

Fair and Impartial Tribunal

Plaintiff complains that the Bradley County Justice Center does not provide a fair
and impartial tribunal to handle disciplinary matters, and when an inmate is found guilty
of violating a facility rule he is placed in disciplinary segregation.
Prior to depriving an inmate of a protected liberty interest, due process entitles
him to written notice of the hearing at least 24 hours in advance, the limited right to call
witnesses and present evidence, a written decision addressing the evidence relied on
and the reasons for the action, and an impartial tribunal. Wolff v. McDonnell, 418 U.S.
539 (1974). However, the due process procedures required by Wolff are not required
unless the challenged discipline implicates a liberty interest by imposing “atypical and
significant hardship on the inmate in relation to the ordinary incidents of prison life.”
Sandin v. Conner, 515 U.S. 472, 483 (1995) (30 days in punitive segregation was
neither atypical or a significant hardship).
Disciplinary segregation generally does not satisfy the Sandin requirement. Id.
(prisoner’s disciplinary segregation did not implicate due process liberty interest);
Joseph v. Curtin, 410 Fed.Appx. 865, 867 (6th Cir. 2010) (finding nothing in plaintiff’s
complaint suggests there was anything atypical and significant about his 61-day stay in
administrative segregation); see also Backey v. South Carolina Dep’t of Corr., 73 F.3d
356 (5th Cir. Jan. 3, 1996), available at 1996 WL 1737 (Plaintiff’s “allegations of
wrongful placement in administrative segregation did not involve the kind of significant
or atypical hardship necessary to invoke the due process rights he avers were
violated[,]”); Joseph v. Gillespie, 73 F.3d 357 (4th Cir. Dec. 21, 1995), available at 1995
WL 756280 (“Administrative segregation is not an atypical and significant hardship
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relative to the ordinary incidents of prison life that would give rise to a liberty interest
protected by any procedure.”) (internal punctuation and citation omitted)). Moreover,
even if Plaintiff possessed a valid liberty interest, he has not claimed he was subject to
disciplinary segregation, and therefore, has failed to demonstrate a violation of his
constitutional rights.
As previously explained, to state a § 1983 claim, Plaintiff must allege a
defendant, while under color of law, violated his constitutionally protected rights and
caused injury. Here Plaintiff does not identify any Defendant in relation to this claim, nor
does he claim he was subjected to any disciplinary proceedings. “A federal court’s
jurisdiction can be invoked only when the plaintiff himself has suffered ‘some threatened
or actual injury resulting from the putatively illegal actions.’” Warth v. Seldin, 422 U.S.
490, 499 (1975) (quoting Linda R.S. v. Richard D., 410 U.S. 614, 617 (1973).
In sum, Plaintiff has failed to establish due process was required in disciplinary
hearings at the Bradley County Justice Center. In addition, Plaintiff, who does not claim
he sustained a direct injury as a result of the complained of action, lacks standing to
challenge the Bradley County Justice Center’s disciplinary hearing procedures.
Accordingly, Plaintiff’s claim challenging the procedure for handling disciplinary hearings
at the Bradley County Justice Center will be DISMISSED for failure to state a claim on
which relief may be granted.
9.

Conditions of “D-Seg” Confinement

In his ninth claim, Plaintiff provides a list of conditions to which he claims “D-Seg”
inmates are subject, but once again, he does not claim he was confined in “D-Seg.”

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Plaintiff’s general complaints about the conditions of “D-Seg” confinement fail to state a
violation of his constitutional rights.
To prevail on a conditions of confinement claim, an inmate must demonstrate
that he has been deprived “of the minimal civilized measure of life’s necessities,” in
order to prove his conditions amounted to cruel and unusual treatment in violation of the
Eighth Amendment. Rhodes v. Chapman, 452 U.S. 337, 347 (1981). “Conditions must
not involve the wanton and unnecessary infliction of pain, nor may they be grossly
disproportionate to the severity of the crime warranting imprisonment.” Id.
Plaintiff’s general complaints about the conditions of confinement in “D-Seg” do
not include a claim that he was personally housed in this unit, and therefore, do not
amount to a constitutional violation of his constitutional right to the minimal civilized
measure of life’s necessities.

Additionally, there is no allegation of any involvement on

the part of the Defendants.

Therefore, because Plaintiff’s allegations fall short of

demonstrating he was subjected to the alleged unconstitutional prison conditions and
fail to identify any named Defendant in relation to this claim, relief is not warranted.
Accordingly, this claim will be DISMISSED for failure to state a claim upon which
relief may be granted.
10.

Medical Care

Plaintiff’s tenth claim consists of two specific alleged incidents pertaining to his
medical treatment.

To support his general claim that inmates are not provided

adequate and reasonable healthcare, but rather are subjected to negligent healthcare
and malpractice, Plaintiff alleges he suffered an unidentified injury for which he received

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delayed medical care of Ibuprofen and Aleve, which he seemingly contends was
inadequate.
In the second part of this claim, Plaintiff alleges he was negligently given another
inmate’s medication and suffered an adverse reaction. The Court will address Plaintiff’s
delayed/inadequate medical care claim separately from his claim that he was
negligently administered another inmate’s medication.

a.

Delayed/Inadequate Medical Care

Plaintiff’s claim is confusingly pled. Plaintiff claims he suffered some unidentified
injury requiring medical attention on February 28, 2011, but was denied medical care on
that date when an officer advised him “no sick call could . . . be handled by the evening
shift.” (Doc. 2, p. 9). Notably, Plaintiff fails to provide the time he allegedly suffered this
injury. Nevertheless, Plaintiff alleges, “after shift change (06:00 am),” upon inquiry, he
was advised his sick call request was not received in time by the appropriate official, but
nonetheless, that evening medical gave him “5 X 200mg Ibuprofen.” (Doc. 2, p. 10).
Yet, Plaintiff claims that on March 1, 2011, (which is the day after he allegedly suffered
this unidentified injury), he was taken to the infirmary where he was informed the jail did
not provided Ibuprofen to inmates and he received no pain medication until “med pass
at 19:00 pm.” (Doc. 2, p. 10). Plaintiff maintains that although “[t]he severity of the pain
lessened over the next few weeks” it “persisted” but Dr. Gurley and Dr. Bates, his
treating physicians, refused to prescribe any type of pain medication other than Aleve.
The Eighth Amendment “forbids prison officials from unnecessarily and wantonly
inflicting pain on an inmate by acting with deliberate indifference toward his serious
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medical need.”

Reilly v. Vadlamundi, 680 F.3d 617, 623 (6th Cir. 2012) (internal

punctuation and citations omitted).

“First, a plaintiff must plead facts which, if true

establish a sufficiently serious medical need.” Id. at 624. A serious medical need is one
for which treatment has been recommended or for which the need is so apparent that
even a layman would recognize care is required. Blackmore v. Kalamazoo County,390
F.3d 890, 897 (6th Cir. 2004)
Second, a plaintiff must establish the subjective component, i.e., Defendants
acted with a sufficiently culpable state of mind in denying medical care.

Reilly v.

Vadlamundi¸ 680 F.3d at 624. A prison official’s deliberate indifference to serious
medical needs of prisoners will violate the Eighth Amendments proscription against
cruel and unusual punishment and is actionable under 42 U.S.C. § 1983. Estelle v.
Gamble, 429 U.S. 97, 104 (1976). “Deliberate indifference is characterized by obduracy
or wantonness−it cannot be predicated on negligence, inadvertence, or good faith
error.” Reilly v. Vadlamundi, 680 F.3d at 624. “Thus, a complaint that a physician has
been negligent in diagnosing or treating a medical condition does not state a valid claim
of medical mistreatment under the Eighth Amendment.” Estelle v. Gamble, 429 U.S. at
106.
Here, because Plaintiff has failed to identify his alleged medical condition, he has
failed to satisfy the first element of an Eighth Amendment medical claim. Plaintiff’s
complaint negates any inference that Defendants acted with deliberate indifference to
his serious medical need, as it cannot be concluded that he has described a sufficiently
serious medical need.

Indeed, Plaintiff provides no description whatsoever of his

alleged injury. Furthermore, his complaint indicates he did not suffer a serious medical
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injury, as the medical staff and physicians simply treated the alleged injury with
Ibuprofen and Aleve which alleviated the severity of the pain over the next few weeks,
though Plaintiff seemingly suggests he would have preferred another avenue of
treatment. These complaints, however, simply do not rise to the level of a serious
medical need for purposes of constitutional analysis. Thus, under these circumstances,
Plaintiff cannot state a cognizable Section 1983 claim that Defendants were deliberately
indifferent to his serious medical needs.
Accordingly, because Plaintiff failed to establish he had a serious medical
condition, his delayed/inadequate medical care claims will be DISMISSED as frivolous
and for failure to state a claim upon which relief may be granted.
b.

Dispensing Incorrect Medication

In his final claim, Plaintiff alleges he was ”negligently given another inmate’s
medications[]”

which caused him to lose consciousness and resulted in him being

transported to Skyridge Medical Center. (Doc. 2, p. 11).

Plaintiff was given a drug to

counteract the drug he was inadvertently given and administered multiple “sternum
rubs” before eventually regaining consciousness and being returned to the jail.
As previously noted, to establish an Eighth Amendment constitutional violation in
relation to medical care, an inmate must establish the defendant acted with deliberate
indifference. Estelle v. Gamble, 429 U.S. 97 (1976). “The subjective component of
Eighth Amendment claims ‘is meant to prevent the constitutionalization of medical
malpractice claims[.]”

Barnett v. Luttrell, 414 Fed.Appx. 784, 788 (6th Cir. 2011)

(quoting Dominquez v. Correctional Med. Servs., 555 F.3d 543, 550 (6th Cir. 2009)).

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“Medical malpractice does not become a constitutional violation merely because the
victim is a prisoner.” Estelle v. Gamble, 429 U.S. at 106.
Initially, the Court observes that Plaintiff does not identify the person who
allegedly administered the incorrect medication to him. Thus, Plaintiff has not alleged
any of the Defendants administered the incorrect medication to him. Moreover, Plaintiff
does not allege that whoever did administer the wrong medication to him, knew he or
she was giving him the incorrect medication or that giving him the medication would
result in Plaintiff losing consciousness.

Plaintiff alleges no facts suggesting the

incorrect dispensing of another inmate’s medication to him was anything more than
negligence or medical malpractice. Absent any facts indicating otherwise, it appears
the incorrect administering of another inmate’s medication to Plaintiff constitutes
medical malpractice at most and is not an Eighth Amendment violation. See Barnett v.
Luttrell, 414 Fed.Appx. 784, 788 (6th Cir. 2011) (nothing suggested nurse’s incorrect
administering of Dilantin, an anti-seizure medication, rather than Ibuprofen, was
anything other than negligence, constituting medical malpractice at most).
Accordingly, as negligence and medical malpractice are not constitutional
violations under § 1983, Plaintiff’s claim that he was negligently given another inmates
medicine will be DISMISSED for failure to state a claim upon which relief may be
granted.
V.

CONCLUSION
In summary, even liberally construed, Plaintiff’s complaint does not contain

allegations reasonably suggesting he may have a valid federal claim. See Lillard v.
Shelby County Bd. of Educ., 76 F.3d 716, 726 (6th Cir. 1996) (complaint must contain
27

allegations addressing all the material elements to sustain a recovery under some
viable legal theory).

The instant complaint has not set forth the factual basis for

Plaintiff’s claims in a manner that raises a sufficient claim of a constitutional violation or
gives Defendants proper notice of the specific claims against them. Neither the Court
nor Defendants are required to “conjure up unpled allegations.” Wells v. Brown, 891
F.2d 591, 594 (6th Cir. 1989).
Plaintiff’s complaint is wholly inadequate because his vague assertions are
glaringly insufficient to show that he suffered a violation of his constitutional rights.
Accordingly, because Plaintiff’s general factually unsupported statements fail to state
constitutional violations and are insufficient under § 1983, his complaint against the
Defendants will be sua sponte DISMISSED in its entirety pursuant to 28 U.S.C.
§§ 1915A & 1915(e) for failure to state a claim upon which relief may be granted.
An appropriate judgment will enter.

/s/ Harry S. Mattice, Jr._______
HARRY S. MATTICE, JR.
UNITED STATES DISTRICT JUDGE

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