Ellison v. Hammond et al

Filing 7

MEMORANDUM AND ORDER. The Court will therefore DENY Plaintiff leave to appeal in forma pauperis. Plaintiff is herewith ASSESSED the civil filing fee of $350.00. This action will be DISMISSED for failure to state a claim upon whichrelief may be granted. Signed by District Judge Harry S Mattice, Jr on 11/16/2016. (AML, ) Copy of M/O served to Ellison and Warden of NCCC, AG for TN, Commissioner of TN Department of Correction. Emailed to Court Financial Deputy.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
KELVIN LAMONT ELLISON,
Plaintiff,
v.
SHERIFF JIM HAMMOND, COUNTY
COMMISSION, CHIEF DEPUTY ALEN
BRANUM, CAPTAIN SWOPE, OFFICER
MILCHAK, LT. KNIGHT, and LT.
COPPINGER,
Defendants.

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No.: 1:14-CV-53-HSM-CHS

MEMORANDUM AND ORDER
The Court is in receipt of a pro se prisoner’s civil rights complaint under 42 U.S.C. §
1983 [Doc. 2], a motion for leave to proceed in forma pauperis [Doc. 1], and Plaintiff’s
certificate for his inmate trust account [Doc. 4]. It appears from Plaintiff’s filings [Docs. 1 and
4] that he lacks sufficient financial resources to pay the $350.00 filing fee.

Accordingly,

pursuant to 28 U.S.C. § 1915, Plaintiff is allowed to proceed in this action without the
prepayment of costs or fees or security therefor. For the reasons set forth below, however, no
process shall issue and this action will be DISMISSED for failure to state a claim upon which
relief may be granted.
Under the Prison Litigation Reform Act (“PLRA”), district courts must screen prisoner
complaints and sua sponte dismiss any claims that are frivolous or malicious, fail to state a claim
for relief, or are against a defendant who is immune. See, e.g., 28 U.S.C. §§ 1915(e)(2)(B) and
1915(A); Benson v. O’Brian, 179 F.3d 1014 (6th Cir. 1999). The dismissal standard articulated
by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and in Bell Atl. Corp. v.

Twombly, 550 U.S. 554 (2007) “governs dismissals for failure state a claim under [28 U.S.C. §§
1915(e)(2)(B) and 1915A] 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 under the PLRA, a 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).
Courts liberally construe pro se pleadings filed in civil rights cases and hold them to a
less stringent standard than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S.
519, 520 (1972). Allegations that give rise to a mere possibility that a plaintiff might later
establish undisclosed facts supporting recovery are not well-pled and do not state a plausible
claim, however. Twombly, 550 U.S. at 555, 570. Further, formulaic and conclusory recitations
of the elements of a claim which are not supported by specific facts are insufficient to state a
plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009).
In order to state a claim under 42 U.S.C. § 1983, a plaintiff must establish that he was
deprived of a federal right by a person acting under color of state law. Black v. Barberton
Citizens Hosp., 134 F.3d 1265, 1267 (6th Cir. 1998); O’Brien v. City of Grand Rapids, 23 F.3d
990, 995 (6th Cir. 1994); Russo v. City of Cincinnati, 953 F.2d 1036, 1042 (6th Cir. 1992); see
also Braley v. City of Pontiac, 906 F.2d 220, 223 (6th Cir. 1990) (stating that “Section 1983 does
not itself create any constitutional rights; it creates a right of action for the vindication of
constitutional guarantees found elsewhere”).
In his complaint, Plaintiff alleges that Defendant Milchak refused to provide him with a
meal on two occasions and that, on the second occasion, Plaintiff informed Defendant Milchak
that he had not eaten, but when Plaintiff again wanted to speak to Defendant Milchak about

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missing this meal, Defendant Milchak stated “y[’]all n*ggas ain’t nothing to me but my car
payment, house payment, [and] boat payment[,] that’s all y[’]all are to me [Doc. 1 p. 2]. These
are the only substantive allegations in the complaint.
Liberally construing the complaint in favor of Plaintiff, it fails to state a claim for
violation of Plaintiff’s constitutional rights. Specifically, Plaintiff sets forth no allegations from
which the Court could plausibly infer that Plaintiff was not provided with food sufficient to
maintain normal health as required for prison deprivation of food to violate the Eighth
Amendment. Richmond v. Settles, 450 Fed. App’x 448, 456 (6th Cir. 2011). Further, it is not
unconstitutional to use slurs or epithets. Williams v. Sandel, 433 F. App’x 353, 362 (6th Cir.
2011). As such, Plaintiff’s complaint fails to state a claim upon which relief may be granted
under § 1983.
Because Plaintiff is an inmate in the Northwest Correctional Complex, he is herewith
ASSESSED the civil filing fee of $350.00. 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 is directed to
submit to the Clerk, U.S. District Court, 900 Georgia Avenue, Room 309, Chattanooga,
Tennessee 37402, twenty percent (20%) of Plaintiff’s preceding monthly income (or income
credited to Plaintiff’s trust account for the preceding month), but only when such monthly
income exceeds ten dollars ($10.00), until the full filing fee of three hundred fifty dollars
($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 is DIRECTED to send a copy of this Memorandum and Order to the Warden
of the Northwest County Correctional Complex, the Commissioner of the Tennessee Department
of Correction, and the Attorney General for the State of Tennessee to ensure that the custodian of

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Plaintiff’s inmate trust account complies with that portion of the Prison Litigation Reform Act
relating to payment of the filing fee. The Clerk is further DIRECTED to forward a copy of this
Memorandum and Order to the Court’s financial deputy.
Further, the Court CERTIFIES that any appeal from this order would not be taken in
good faith and the Court will therefore DENY Plaintiff leave to appeal in forma pauperis.
AN APPROPRIATE JUDGMENT ORDER WILL ENTER.
ENTER:

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

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