Brown v. Scholfield et al

Filing 4

MEMORANDUM AND ORDER Plaintiffs motion to proceed without prepayment of the filing fee is GRANTED, (Ct.File No. 3), and he is ASSESSED the civil filing fee of three hundred and fifty dollars($350). Commissioner Schofield and Warden Qualls are DISMISSED from this suit for the Plaintiff's failure to state a claim against them. The Clerk is DIRECTED to send the Plaintiff a service packet for Defendant Christopher Dodson. The Plaintiff is ordered to complete the servi ce package within 20 days. The Defendant shall answer or otherwise respond to the complaint within twenty-one (21) days from the date of service. Signed by District Judge Curtis L Collier on 11/3/2014. (BJL)***Mailed to Earnest Brown, along with service package; mailed to BCCX Warden and Custodian of Inmate Accounts, Commissioner of the Tennessee Department of Correction; and emailed to Court's financial deputy.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA

EARNEST BROWN,
Plaintiff,
v.
TDOC COMMISSIONER DERRICK
SCHOFIELD, WARDEN ERIC
QUALLS, and CORRECTIONAL
OFFICER CHRISTOPHER DODSON,
Defendants.

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No.: 1:14-CV-303

MEMORANDUM and ORDER

Plaintiff Earnest Brown has filed a civil rights complaint under 42 U.S.C. § 1983.
Plaintiff’s motion to proceed without prepayment of the filing fee is GRANTED, (Ct.
File No. 3), and he is ASSESSED the civil filing fee of three hundred and fifty dollars
($350).

Because Plaintiff is an inmate, he will be allowed to pay the fee on an

installment basis. Therefore, the custodian of inmate trust accounts at the institution
where Plaintiff now resides is DIRECTED to submit to the Clerk of Court, as an initial
partial payment, twenty percent (20%) of the greater of either the average monthly
deposits to his inmate trust account or the average monthly balance in the account, for the
six (6) months immediately preceding the filing of the complaint. 28 U.S.C.§ 1915(b)(1).
After the initial partial filing fee has been paid, the custodian shall submit twenty percent
(20%) of the Plaintiff’s preceding monthly income (or income credited to his trust

account for the preceding month), but only when his monthly income exceeds
$10.00, until the full filing fee has been paid to the Clerk’s Office.

28 U.S.C. §

1915(b)(2).
The Clerk is DIRECTED to mail a copy of this Order to the custodian of inmate
trust accounts at the Plaintiff’s place of confinement, to the Commissioner of the
Tennessee Department of Correction, and to the Warden of BCCX, to ensure compliance
with the assessment procedures outlined herein. The Clerk is further DIRECTED to
furnish a copy to the Court’s financial deputy. All payments should be sent to the Clerk’s
Office, USDC; 900 Georgia Avenue, Room 309; Chattanooga, TN 37402. This order
SHALL become a part of the Plaintiff’s inmate file and follow him if he is transferred to
another institution. The agency having custody of the Plaintiff SHALL continue to
collect monthly payments from the Plaintiff’s prisoner account until the entire filing
fee of $350.00 is paid.
According to the Plaintiff’s pleading, at 5:48 PM on August 12, 2014, Defendant
Correctional Officer Christopher Dodson repeatedly punched Plaintiff as he lay face
down on the ground in handcuffs, then picked him up by the handcuffs and feet and
threw him head first into the shower, causing him to hit his head on the shower wall.
Another officer held both of Plaintiff’s legs “pig style” while Defendant Dodson
continued to assault Plaintiff, who then was in protected custody. For the distress, pain,
and suffering which it is claimed resulted from the alleged infringement of his
constitutional rights, the Plaintiff seeks damages.

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The Court now must screen the complaint to determine whether it should be
dismissed as frivolous, malicious or for failure to state a claim or because monetary
damages are sought from a defendant who is immune from such relief. 28 U.S.C. §
1915(e)(2) and § 1915A. In 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)). All well-pleaded
allegations in the complaint will be taken as true and the factual allegations will be
considered to determine whether “they plausibly suggest an entitlement to relief.”
Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009). The Court examines the complaint in light of
these requirements.
Plaintiff has named, as additional Defendants, Derrick Schofield, Commissioner of
the Tennessee Department of Correction, and Eric Qualls, Warden of BCCX. However,
the Plaintiff makes no allegations of fact against these two Defendants. To the extent
Plaintiff has named the Commissioner and the Warden as Defendants based on a belief
they bear overall responsibility for running the BCCX and for supervising the conduct of
its correctional officers, this is not a viable basis for relief. This is so because § 1983
liability must be based on more than respondiat superior, or a defendant’s right to control
employees. See, e.g., Ashcroft, 556 U.S. at 676 (“vicarious liability is inapplicable to . . .
§ 1983 suits”); Taylor v. Michigan Dep't of Corrections, 69 F.3d 76, 80-81 (6th Cir.
1995).

A “simple awareness of employee’s misconduct” is not enough. Leary v.

Daeschner, 349 F.3d 888, 903 (6th Cir. 2003). Unless there is some affirmative showing
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that these two Defendants authorized, approved, or knowingly acquiesced in the alleged
conduct of Defendant Dodson, the Plaintiff has failed to state a § 1983 claim against
them. Walton v. City of Southfield, 995 F.2d 1331, 1340 (6th Cir.1993); Bellamy v.
Bradley, 729 F.2d 416, 421 (6th Cir.1984). Likewise, a supervisor cannot be held liable
for a mere failure to act.

Greene v. Barber, 310 F.3d 889, 899 (6th Cir. 2002)

("Supervisory liability under § 1983 does not attach when it is premised on a mere failure
to act; it 'must be based on active unconstitutional behavior.'") (quoting Bass v. Robinson,
167 F.3d 1041, 1048 (6th Cir. 1999)). Because the complaint contains no allegations to
establish the showing which must be made to hold these Defendants liable,
Commissioner Schofield and Warden Qualls are DISMISSED from this suit for the
Plaintiff’s failure to state a claim against them.
The Clerk is DIRECTED to send the Plaintiff a service packet (a blank summons and
USM 285 form) for Defendant Christopher Dodson. The Plaintiff is ORDERED to
complete the service packet and to return it to the Clerk's Office within twenty (20) days
of the date of receipt of this Memorandum and Order. At that time the summons will be
signed and sealed by the Clerk and forwarded to the U.S. Marshal for service. Fed. R.
Civ. P. 4. The Plaintiff is forewarned that failure to return the completed service packet
within the time required could jeopardize his prosecution of this action.
The Defendant shall answer or otherwise respond to the complaint within twentyone (21) days from the date of service. Defendant’s failure to timely respond to the
complaint may result in entry of judgment by default against the Defendant.

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Plaintiff is ORDERED to inform the Court in writing, and the Defendant or his
counsel of record, immediately of any address changes. Failure to provide a correct
address to this Court within ten (10) days following any change of address may result in
the dismissal of this action.

ENTER:
/s/_______________________________
CURTIS L. COLLIER
UNITED STATES DISTRICT JUDGE

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