Kotewa v. Westbrooks et al

Filing 20

MEMORANDUM with order to follow;Signed by District Judge Harry S Mattice, Jr on 3/27/2013. (AWH, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
THOMAS EDWARD KOTEWA,
Plaintiff,
v.
WARDEN BRUCE WESTBROOKS,
Sued in his Official and Individual
Capacities; TENNESSEE DEPARTMENT OF CORRECTIONS; CASE
MANAGER TOLLETT, MIKE SMITH,
AND RANDY FARLEY; SGT. BURT
BOYD; CAPT. PHILLIPS; CHAD
DAVIS; BEN WELCH; CLASSIFICATION COORDINATOR CHARLES
BRYER;
Defendants.

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No. 1:12-CV-264
Mattice/Lee

MEMORANDUM
Plaintiff Thomas Edward Kotewa (“Plaintiff”), was an inmate at Southeastern
Tennessee State Regional Correctional Facility (“STSRCF”), in Pikeville, Tennessee,
when he originally filed this pro se action (Court File No. 1). Plaintiff has since been
transferred to West Tennessee State Penitentiary (“WTSP”) (Doc. 15-1, Warden
Westbrooks’ Affidavit).
This is a case involving a Plaintiff who allegedly has a “statewide ‘hit’ on him
because he killed a known Gang member,” and the logistical hardship created for prison
administrators to keep him safe. Although Plaintiff was placed in protective custody and
temporarily housed in segregation at STSRCF, he claims his Eighth Amendment rights
were violated when, due to inadequate procedures in the protective custody unit, he
was in danger of assault by other inmate gang members at STSRCF. Plaintiff also

claims his Eighth Amendment rights were violated when Defendant Classification
Coordinator Charles Brymer (“Coordinator Brymer”) subsequently reclassified Plaintiff to
be transferred to Hardeman County Correctional Facility (“HCCF”), where he had
previously been attacked by four unknown inmates on October 15, 2009, and suffered
serious injuries requiring treatment at an outside hospital (Docs. 1 & 4). Neither an
attack nor the transfer to HCCF materialized.
This matter is before the Court on three motions filed by Plaintiff (Docs. 5, 10, &
18) and Defendant Warden Bruce Westbrooks (“Warden Westbrooks”) motion to
dismiss (Doc.16). For the reasons set forth below, after reviewing the complaint and
accepting all of its allegations as true and liberally construing them in the light most
favorable to Plaintiff, the Court concludes Warden Westbrooks’ motion to dismiss will be
GRANTED (Doc. 16), Plaintiff’s complaint will be DISMISSED in its entirety for failure to
state a claim upon which relief may be granted (Court Doc. 4), and Plaintiff’s motions
will be DENIED (Doc. 5, 10, & 18).
I.

BACKGROUND
Read in the light most favorable to Plaintiff, the Complaint contains the following

allegations. There is a statewide “hit” on Plaintiff because he killed a known gang
member. Although housed under protective custody in the segregation unit at STSRCF,
Plaintiff feared members of his victim’s gang would carry out its threats on Plaintiff’s life
because STSRCF does not have a permanent protective custody unit.

Although

Plaintiff was housed in protective custody and escorted when he attended medical
appointments, general population inmates, including members of his victim’s gang, were
freely moving about, and he feared they had the ability to “carry[ ] out the hit” on him
2

(Doc. 4). When Plaintiff was released to go shower, general population inmates serving
time in punitive segregation were permitted out of their cell unrestrained at the same
time. In addition, when Plaintiff attended his one hour a day exercise, he was forced to
go into a cage next to general population inmates who spit on him through the fence
and verbally abused him (Docs. 1 & 4).
Plaintiff has been attacked on two previous occasions, one of which was at
HCCF in 2009, by four unknown inmates, which resulted in serious injury to him. On
August 1, 2012, Defendant Brymer, “by and through Case Manager Tollett” notified
Plaintiff he was being reclassified to Hardeman County Correctional Facility (“HCCF”)
(Doc. 4). Plaintiff told Case Manager Tollett and Defendants Mike Smith (“Defendant
Smith”), Randy Farley (“Defendant Farley”), Sgt. Burt Boyd (“Sgt. Boyd”), Capt. Phillips
(“Capt. Phillips”), Chad Davis (“Defendant Davis”), and Ben Welch (‘Defendant Welch”)
about the prior assault on him at HCCF but they “failed to act.” (Doc. 4).
Plaintiff claims Defendants violated his Eighth Amendment rights when they
failed to have policies and procedures that would prevent general population inmates
from having access to him and when they reclassified him to be transferred to HCCP.
Plaintiff requests declaratory and injunctive relief - i.e.) that Defendants establish
procedures to protect inmates in protective custody at STSRCF, and filing fees and
$5,000.00 in compensatory damages.
II.

STANDARD OF REVIEW
A.

Title 28 U.S.C. §§ 1915(e) and 1915A Screening

Under 28 U.S.C. §§ 1915(e) and 1915A, a court is required to screen civil
complaints brought by prisoners proceeding in forma pauperis and to dismiss an action
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at any time if the court determines that it is frivolous or fails to state a claim upon which
relief can be granted. In performing this task, the Court bears in mind the rule that pro
se pleadings filed in civil rights cases must be liberally construed and held to a less
stringent standard than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S.
519, 520 (1972). Although the court holds pro se pleadings to a less stringent standard
than formal pleadings drafted by lawyers, the district court is under no duty to conjure
up unpled allegations. Indeed, “even in the case of pro se litigants . . . leniency does
not give a court license to serve as de facto counsel for a party, . . . or to rewrite an
otherwise deficient pleading in order to sustain an action.” GJR Inv., Inc. v. County. of
Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998), overruling on other grounds
recognized by Randall v. Scott, 610 F.3d 701, 706 (11th Cir. 2010).
B.

42 U.S.C. § 1983

In order to state a cognizable claim under § 1983, a plaintiff must allege that (1)
he was deprived of a right, privilege, or immunity secured by the Constitution or laws of
the United States; and (2) the deprivation was caused by a person while acting under
color of state law. See, e.g., West v. Atkins, 487 U.S. 42, 48 (1988); Flagg Bros. Inc. v.
Brooks, 436 U.S. 149, 155-156 (1978); Brock v. McWherter, 94 F.3d 242, 244 (6th Cir.
1996). To maintain a cause of action for damages under 42 U.S.C. § 1983, a plaintiff
must also allege that the defendant caused the plaintiff an injury and show that the
injury resulted in actual damages. See Carey v. Piphus, 435 U.S. 247, 255 (1978);
Chatman v. Slagle, 107 F.3d 380, 384 (6th Cir. 1997); Zehner v. Trigg, 952 F.Supp.
1318, 1321 (S.D. Ind.), aff’d 133 F.3d 459 (7th Cir. 1997). Although the Federal Rules
of Civil Procedure do not require a plaintiff to set out in detail the facts underlying his
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claim, the plaintiff must provide sufficient allegations to give defendants fair notice of the
claims against them.

Leatherman v. Tarrant County. Narcotics Intelligence &

Coordination Unit, 507 U.S. 163, 168 (1993). Thus, to state a § 1983 claim, a plaintiff
must allege sufficient facts that, if true, would establish he incurred an injury when the
defendants deprived him of a right secured by the Constitution of the United States
while they acted under color of law. See Brock, 94 F.3d at 244.
III.

ANALYSIS
Plaintiff has identified numerous parties as Defendants, all of whom appear to

have been sued only in their official capacity, with the exception of Warden Westbrook,
who he specified was sued in both his official and individual capacities. For the sake of
ease and organization, the Court will analyze the Complaint by addressing the official
capacity claims before turning to Warden Westbrooks’ motion to dismiss the claims
against him in his individual capacity.
A.

Identity of Defendants

Plaintiff has named Warden Westbrooks, Tennessee Department of Corrections
(“TDOC”), Coordinator Brymer, Case Manager Tollett, Mike Smith (“Defendant Smith”),
Randy Farley (“Defendant Farley”), Sgt. Burt Boyd (“Sgt. Boyd”) Capt. Phillips (“Capt.
Phillips”), Chad Davis (“Defendant Davis”), and Ben Welch (“Defendant Welch”) as
Defendants in this case. Plaintiff specified he is suing Warden Westbrooks in both his
official and individual capacities but does not specifically indicate whether the other
Defendants are being sued in their official capacity, individual capacity, or both. Plaintiff
is suing the other defendants for reclassifying him to transfer to HCCF, a transfer that
never occurred.
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A suit brought against a government official will not be construed as seeking
damages against the defendant in his individual capacity unless such a claim for
individual liability is clearly and definitely set forth in the pleading. Pelfrey v. Chambers,
43 F.3d 1034, 1038 (6th Cir. ), cert. denied, 515 U.S. 1116 (1995); Thiokol Corp. v.
Department of Treasury, State of Mich., Revenue Div., 987 F.2d 376, 383 (6th Cir.
1993); Lovelace v. O’Hara, 985 F.2d 847, 850 (6th Cir. 1993); Hardin v. Straub, 954 F.2d
1193, 1199-1200 (6th Cir. 1992); Wells v. Brown, 891 F.2d 591 (6th Cir. 1989); Johnson
v. Turner, 855 F.Supp. 228, 231 (W.D. Tenn. 1994), aff’d, 125 F.3d 324 (6th Cir. 1997).
Generally, absent any express indication the defendant is being sued in his individual
capacity, the Court must assume he is being sued only in his official capacity as an
employee of the governmental entity. Whittington v. Milby, 928 F.2d 188, 193 (6th Cir.),
cert. denied, 502 U.S. 883 (1991); Wells, 891 F.2d at 593-94.
Although it is preferable that plaintiffs explicitly state whether a defendant is sued
in his individual capacity, the failure to do so is not fatal if the complaint or other filed
documents provide sufficient notice to the defendant that he is being sued as an
individual. Here Plaintiff identifies most of the defendants by title or rank and specifies
all are employees of the Tennessee Department of Corrections. Absent any indication
they are being sued in their individual capacity, the Court, therefore, construes the
complaint as suing them in their official capacities.

Nevertheless, even if Plaintiff

intended to sue these defendants in their individual capacities, he would not be entitled
to relief because his transfer to HCCF never materialized, and thus, there was no
constitutional violation.

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The official capacity claim against Warden Westbrooks and the claims against
the TDOC and the other Defendants are effectively against the State and are barred
because the State is not a person under § 1983. See Arizonans for Official English v.
Arizona, 520 U.S. 43, 69 (1977) (§ 1983 actions do not lie against a State, so Eleventh
Amendment immunity does not prevent the § 1983 case against a state, rather § 1983
creates no remedy against a State). The United States Supreme Court has excluded
“States and arms of the State from the definition of person” under § 1983. Howlett v.
Rose, 496 U.S. 356, 365 (1990) (citing Will v. Michigan Dept. of State Police, 491 U.S.
58 (1989).

"[N]either a State nor its officials acting in their official capacities are

‘persons' under § 1983."

Will v. Michigan Dept. Of State Police, 491 U.S. at

71;

Arizonans for Official English v. Arizona, 520 U.S. at 69 fn. 24. Therefore, the law is
well-settled that a state is not a "person" within the mean of § 1983.
Here, all the individual defendants are state employees and TDOC is a state
agency. Therefore, the Court must proceed as if Plaintiff has, in fact, sued the State of
Tennessee. Because the State of Tennessee is not a "person" subject to damages
under 42 U.S.C. § 1983, Plaintiff has failed to state a claim against Warden Westbrook
in his official capacity, TDOC, or the other individual Defendants. Accordingly, the
official capacity claims against Warden Westbrook, the claims against the other
individual defendants for reclassifying Plaintiff to transfer him to HCCF, and the claims
against TDOC will be DISMISSED because the claims are effectively against the State
of Tennessee and are barred on the ground that a state is not a person within the
meaning of § 1983. Lapides v. Board of Regents of the Univ. Sys. of Ga., 535 U.S. 613,
617 (2002); Will v. Michigan, 491 U.S. at 71.
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C.

Motion to Dismiss

The only remaining defendant in this lawsuit is Warden Westbrooks, sued in his
individual capacity. In his motion to dismiss, the Warden primarily relies on Plaintiff’s
alleged failure to exhaust his administrative remedies and, alternatively, on his alleged
failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), as grounds
for dismissal of his complaint.
1.

Failure to Exhaust Administrative Remedies

The Prisoner Litigation Reform Act (“PLRA”) requires prisoners to exhaust
available prison grievance procedures before filing suit. 42 U.S.C. § 1997e(a) (“No
action shall be brought with respect to prison conditions under section 1983 of this title,
or any other Federal law, by a prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available are exhausted.” (emphasis
added)). “There is no question that exhaustion is mandatory under the PLRA and that
unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211
(2007).

“[F]ailure to exhaust is an affirmative defense under the PLRA, and [

]

inmates are not required to specially plead or demonstrate exhaustion in their
complaints.” Id. at 216. “Non-exhaustion is an affirmative defense under the PLRA,
with the burden of proof falling on the [defendant.]” Surles v. Andison, 678 F.3d 452,
456 (6th Cir. 2012) (internal punctuation and citation omitted) (emphasis in original).
Defendant, who has the burden of proving this affirmative defense, relies simply
on an allegation in his motion and supporting brief that Plaintiff failed to exhaust the
grievance process by failing to appeal to the final level of the grievance review process
(Docs. 16 & 17). The warden does not provide the Court with the policy and procedures
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for filing a grievance at STSRCF or provide any documentation that a search was made
of grievances filed by Plaintiff during the pertinent time period and the result of the
search.
Plaintiff, on the other hand, attached a grievance to his complaint evidencing that
he attempted to grieve his reclassification to HCCF but Chairperson Sgt. L. Riggs’
responded, “[p]er policy 501.01 classification matters are inappropriate to the grievance
procedure therefore this grievance is deemed inappropriate.” (Doc. 4-1).
Here, Warden Westbrook has not satisfied his burden of proving Plaintiff failed to
exhaust his available administrative remedies as to his complaints about protective
custody at STSRCF or his complaint of being classified for transfer to HCCF.
Specifically, the Warden has not demonstrated Plaintiff did not grieve the prison
conditions in protective custody at STSRCF or alleged or demonstrated Plaintiff's
complaint regarding his reclassification and transfer to another institution were nongrievable through TDOC’s grievance process. See e.g. Owens v. Keeling, 461 F.3d
763, 769 (6th Cir.2006) (non-grievability of classification-related complaint through the
grievance process renders remedy unavailable under the PLRA and exhaustion is not
required); Rancher v. Franklin County, 122 Fed. Appx. 240, 241 (rule to treat medical
issues as non-grievable resulted in no available administrative procedures to exhaust)
(Doc. 16). Aside from the fact Warden Westbrooks does not provide the Court with
anything other than a factually unsupported claim that “plaintiff failed to exhaust the
grievance process by failing to appeal to the final level of the grievance review process,”
the grievance Plaintiff filed pertaining to his reclassification and transfer specifies such
matters are not grievable “per policy 501.01.” (Doc. 4-1). Therefore, the reclassification
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issue is not grievable and exhaustion is not required. As to the claim relating to the
conditions of confinement in protective custody, Warden Westbrooks’ claim that Plaintiff
failed to exhaust his administrative remedies is insufficient to satisfy his burden “to
plead and prove the prisoner failed to exhaust his available administrative remedies.”
Jones v. Bock, 549 U.S. at 211-12.
Because Warden Westbrooks has not demonstrated Plaintiff did not exhaust his
remedies in relation to his claims regarding the conditions of protective custody at
STSRCF and that administrative remedies were available to Plaintiff to grieve his
reclassification and transfer, he has failed to satisfy his burden of demonstrating Plaintiff
failed to exhaust available administrative remedies in compliance with the PLRA.
Accordingly, Warden Westbrook’s motion to dismiss for failure to properly exhaust
administrative remedies will be DENIED.
2.

Claims for Injunctive and Declaratory Relief are Moot

In his initial pleading and subsequently filed complaint, Plaintiff requests an order
declaring the defendants have acted in violation of the United States Constitution,
ordering the defendants to implement policies and procedures to keep inmates in
protective custody safe, and to order defendants not to retaliate against him (Docs. 1 &
4). Warden Westbrooks maintains Plaintiff’s claims for declaratory and injunctive relief
are moot and should be dismissed.
Plaintiff no longer resides at STSRCF, as he was transferred to West Tennessee
State Penitentiary (“WTSP”), which has a permanent protective custody housing unit, on
August 16, 2012 (Doc. 15-1, Warden Westbrooks’ Affidavit). Because he is no longer
incarcerated at STSRCF, Plaintiff’s prayers for injunctive and declaratory relief are
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moot. Dellis v. Corrections Corp. of America, 257 F.3d 508, 510, n. 1 (6th Cir. 2001)
(prayers for injunctive and declaratory relief deemed moot because he was no longer
incarcerated in that facility); Kensu v. Haigh, 87 f.3d 172, 175 (6th Cir. 1996) (same).
Accordingly, because Plaintiff is no longer confined at STSRCF, his claims for
declaratory and injunctive relief will be DIMISSED AS MOOT.
3.

Eighth Amendment Claim

Plaintiff’s Eighth Amendment claim is unique in that the danger to which he
allegedly was exposed at STSRCF−attacks by gang members−never materialized.
Thus, the question before the Court is whether Plaintiff, who was not assaulted by, and
who is no longer at risk from, fellow inmates at STSRCF, may nevertheless maintain a
civil rights case based solely on prison officials’ alleged past failures to take measures
to protect him from inmates known to pose a danger to the prisoner.
In his complaint, Plaintiff alleges that due to inadequate procedures in the
protective custody unit, he was in danger of assault by his victim’s gang members at
STSRCF. Warden Westbrooks argues Plaintiff has failed to state a claim upon which
relief may be granted.
As the Court discerns Plaintiff’s claim, he is suing the Warden in his individual
capacity under the Eighth Amendment for failing to protect him from the possibility of
injury. To prevail on a § 1983 claim, a plaintiff must allege he is incarcerated under
conditions posing a substantial risk of serious harm and prison officials acted with
deliberate indifference to that risk.

Farmer v. Brennan, 511 U.S. 825, 833 (1994).

Aside from the fact that Plaintiff seemingly claims the Warden violated his rights by
acting in a supervisory capacity as the manager of the day-to-day operations of
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STSRCF, and a supervisor cannot incur personal liability under 42 U.S.C. § 1983 under
a theory of respondeat superior absent proof of personal involvement, Grinter v. Knight,
532 F.3d 567, 575 (6th Cir. 2008),1 Plaintiff has failed to meet the two-prong test to
raise a proper Eighth Amendment claim.
“A prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to
an inmate violates the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 828
(1994). To prevail on an Eighth Amendment prison-condition claim based on failure to
protect, an inmate must show he is incarcerated under conditions posing a substantial
risk of serious harm. The Supreme Court has held “a prison official violates the Eighth
Amendment only when two requirements are met. First the deprivation alleged must be
objectively, sufficiently serious, a prison official’s act or omission must result in the
denial of ‘the minimal civilized measure of life’s necessities, and for a claim of failure to
prevent harm, the inmate must show that he is incarcerated under conditions posing a
substantial risk of serious harm.”
punctuation and citations omitted).

Farmer v. Brennan, 511 U.S. at

834 (internal

To violate the Eighth Amendment’s prohibition

against cruel and unusual punishment, however, a prison official must have a
“sufficiently culpable state of mind” i.e., deliberate indifference to Plaintiff’s safety in this
case. Id. Thus, “a plaintiff must show both an objective risk of danger and actual
knowledge of that risk on the part of the custodial staff.” Weiss v. Cooley, 230 F.3d
1027, 1032 (7th Cir. 2000).

1

“At a minimum, a § 1983 plaintiff must show that a supervisory official at least implicitly
authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending
subordinate.” Id. (internal punctuation and citation omitted). Plaintiff does not allege that Warden
Westbrooks committed any actual acts, nor has he averred he acquiesced in the conduct of his
employees.

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Although Plaintiff was being escorted when he claims he was in the most danger
and was in a separate “rec-cage” when exercising next to the general population, for
purposes of this discussion the Court presumes Plaintiff has met the first prong of the
Eighth Amendment test - i.e.) that he faced an objective risk of serious injury. The
question is whether Warden Westbrooks was aware of the alleged risk. Plaintiff has
provided no facts indicating Warden Westbrooks or any other STSRCF Defendant
possessed the requisite culpable state of mind or the requisite knowledge of a risk of
harm to Plaintiff. Plaintiff does not allege he notified the Warden or any prison official of
his fear that, because prison officials were not taking the necessary precautions to
protect him from inmates known to pose a danger to him, he feared those inmates could
carry out the ”hit” on him. Consequently, Plaintiff has failed to satisfy the second prong
of the Eighth Amendment test i.e. the sufficiently culpable state of mind.
Plaintiff’s allegations, taken as true, fail to establish Warden Westbrooks violated
his constitutional rights. Because there is no evidence Warden Westbrooks was aware
of and ignored the alleged risk, Plaintiff’s allegations fail to raise an Eighth Amendment
claim. Accordingly, Warden Westbrooks’ motion to dismiss will be GRANTED and
Plaintiff’s Complaint will be DISMISSED in its entirety (Doc. 4).
IV.

MOTIONS
After filing his initial pleading and complaint, Plaintiff filed three motions which the

Court will now consider (Court Docs. 5, 10, & 18).
A.

Motion for Court’s Immediate Intervention

In this motion, Plaintiff claims Defendants retaliated against him for filing the
instant complaint by reclassifying him to WTSP (Court Doc. 3). Accordingly to Plaintiff,
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this transfer “completely disregard[s] any danger [he] may face being moved back to
West Tennessee where he was attacked at HCCF on October 15, 2009, by four
unknown inmates (Doc 5). To establish a retaliation claim, Plaintiff must prove: (1) he
engaged in protected conduct; (2) an adverse action was taken against him that would
deter a person of ordinary firmness from continuing to engage in that conduct; and (3)
there is a causal connection between the adverse action and his protected conduct.
Muhammad v. Close, 379 F.3d 413, 416 (6th Cir. 2004).
Plaintiff has the right to access the Courts, thus the first element is satisfied.
Plaintiff, however, has failed to demonstrate an adverse action was taken against him
that would deter a person of ordinary firmness from continuing to engage in the
protected conduct. Plaintiff alleges he did not feel safe at STSRCF because it lacked “a
permanent protective custody unit” (Doc. 1), thus his reclassification to WTSP−a
different facility than HCCF where he was assaulted approximately four years ago−is
not an adverse action, as that institution has a permanent protective custody housing
unit, something which Plaintiff seemingly desired for his protection. It is undisputed that
Plaintiff’s transfer to WTSP housed him in a facility which included the specific type of
housing unit he was seeking when he filed this complaint i.e. a permanent protective
custody housing unit.
Consequently, considering Plaintiff’s specific circumstances, he has failed to
demonstrate the action taken was adverse and that the action was one that would deter
a person of ordinary firmness from continuing to proceed with his complaint. Based on
the record, Plaintiff’s transfer to WTSP was for his own protection and was not
retaliatory. Because Plaintiff has failed to adequately plead facts sufficient to establish
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the second element of his retaliation claim, the Court need not address the third
element. Accordingly, because Plaintiff did not adequately plead a retaliation claim, i.e.,
that his transfer to WTSP was a result of his involvement in this lawsuit, his motion
requesting the Court to intervene will be DENIED (Doc. 5).
B.

Motion for Preliminary Injunction and/or Restraining Order

This motion is confusingly plead and difficult to decipher. As the Court discerns,
Plaintiff requests a preliminary injunction and/or restraining order to prevent Defendants
from transferring him out of the WTSP protective custody unit without first responding to
the Court’s previous order (Docs. 10 & 11).2
To put Plaintiff’s request in context, a brief review of the initial history of this case
is necessary. Although Plaintiff entitled his first pleading as a motion for a preliminary
injunction and/or restraining order, the Court discerned he was attempting to file both a
civil rights action under 42 U.S.C. § 1983 and a motion requesting a preliminary
injunction and restraining order and directed Plaintiff to file a proper complaint.
Therefore, the Court directed the Clerk to send Plaintiff a complaint (Doc. 3).

In

addition, The Court directed the Clerk to complete a service packet for Warden
Westbrooks, sign and seal the summons, and forward it along with a copy of Plaintiff’s
filings to the U.S. Marshal for service (Doc. 3). Finally, the Court ordered Warden
Westbrook to respond to the request for injunctive relief/restraining order within ten days
from the date of the August 9, 2012, Order (Doc. 3).

2

The Court notes that Plaintiff’s motion (Doc. 10) and supporting statement (Doc. 11) were filed at
the same time and the pages are numbered chronologically as one document with his signature on the
last page. The Clerk, however, docketed it as two separate documents. Thus, although it appears
Plaintiff failed to sign his motion in violation of Rule 11(a) of the Federal Rules of Civil Procedure, which
requires that every pleading by an unrepresented party be signed personally, such is not the case.

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Although service was executed on August 16, 2012, the Warden did not file a
response.

Pursuant to a Show Cause Order, Warden Westbrook responded by

affidavit, explaining he received an envelope from this Court on August 17, 2012, which
contained only the Court’s memorandum and order but no summons, complaint, motion
for preliminary injunction, or any other document (Doc. 15-1). The Warden sent the
document to TDOC Legal Counsel but no action was taken until the Warden received
the Show Cause Order.
Plaintiff’s motion for a preliminary injunction and/or restraining order requested
the Court to order the defendants to establish procedures at STSRCF for the “safe
placement of protective custody inmates[,]” and a bald request to prevent the
defendants from retaliating against him (Doc. 1). By the time the Court received the
Warden’s response, the motion requesting a restraining order/preliminary injunction was
moot because Plaintiff had been transferred to WTSP on August 16, 2012. See Dellis
v. Corrections Corp. of America, 257 F.3d at 510, n. 1 (prayers for injunctive and
declaratory relief deemed moot because he was no longer incarcerated in that facility);
Kensu v. Haigh, 87 F.3d at 175 (same).
In the instant pleadings, which are very confusing, Plaintiff requests the Court to
restrain Defendants from transferring him from the WTSP protective custody unit
without first requiring them to respond to the Court’s previous order.
Westbrooks has responded to the Court’s previous order.

Warden

In addition, there is no

evidence Defendants, all of whom are STSRCF employees, possess any authority to
transfer Plaintiff from the WTSP protective custody unit. Accordingly, this motion will be
DENIED (Doc. 10).
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C.

Motion to Hold in Abeyance

Plaintiff requests the Court to hold this case in abeyance while he is temporarily
housed at a county jail, where he is allotted only two pieces of paper a “work week” for
legal material. In addition, Plaintiff explains he does not have his personal property,
thus he is unable to provide the Court with documented evidence that he exhausted his
administrative remedies (Doc. 18).3 Plaintiff filed a response to Defendant’s motion to
dismiss (Doc. 19).

In addition, the Court previously denied Defendant’s motion to

dismiss on the alleged failure of Plaintiff to exhaust his available administrative
remedies. Accordingly, Plaintiff’s motion to hold this case in abeyance will be DENIED
(Doc. 18).
VII.

CONCLUSION
Plaintiff has failed to state a claim that would entitle him to relief under 42 U.S.C.

§ 1983. The only Defendant sued by Plaintiff in his individual capacity was Warden
Westbrook. In addition, the Warden and the other defendants were sued in their official
capacity. The official capacity claims will be DISMISSED sua sponte for failure to state
a claim upon which relief may be granted. 28 U.S.C. §§ 1915(e)(2)(B)(i)(ii) & 1915A.
Warden Westbrooks’ motion to dismiss the claims against him in his individual capacity
will be GRANTED (Doc. 16) and Plaintiff’s complaint will be DISMISSED in its entirety
for failure to state a claim on which relief may be granted under 42 U.S.C. § 1983.

3

Notably, Plaintiff filed this two page motion along with a one page letter and his four page
response to Defendants motion to dismiss at the same time.

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Fed.R.Civ.P. 12(b)(6); 28 U.S.C. §1915(e)(2)(B)(i)(ii) & 1915A (Doc. 4). In addition,
Plaintiff’s motions will be DENIED (Docs. 5, 10, &18).
An appropriate judgment will enter.
.
/s/ Harry S. Mattice, Jr._______
HARRY S. MATTICE, JR.
UNITED STATES DISTRICT JUDGE

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