Adkins v. Burnett
Filing
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MEMORANDUM AND OPINION as set forth in following order. Signed by District Judge Pamela L Reeves on 10/31/16. (c/m)(ABF)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
JIMMY DALE ADKINS,
Plaintiff,
v.
RONNIE “BO” BURNETTE, 1
Defendants.
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No.: 1:16-CV-042-PLR-SKL
MEMORANDUM AND ORDER
The Court is in receipt of a pro se prisoner’s civil rights complaint under 42 U.S.C. §
1983 [Doc. 1] that was transferred to this district from the United States District Court for the
Middle District of Tennessee, which assessed Plaintiff with the filing fee [Doc. 8], but did not
screen the complaint pursuant to the Prison Litigation Reform Act (“PLRA”). Plaintiff has also
filed a motion to appoint counsel [Doc. 11], an amended complaint [Doc. 12], and a motion for
status of case [Doc. 20]. For the reasons set forth below, no process shall issue and this action
will be DISMISSED for failure to state a claim upon which relief may be granted. Accordingly,
Plaintiff’s pending motions [Docs. 11 and 20] will be DENIED as moot.
Under the 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
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The Clerk is DIRECTED to correct the spelling of Defendant Burnette’s name on the
Court’s docket.
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 original complaint, Plaintiff generally asserts that he sent out medical requests for
treatment, but did not receive the requested medical treatment [Doc. 1 p. 4]. Plaintiff also sets
forth the following conclusory and factually unsupported allegations: “Denied medical treatment,
[d]enied me [a] conflict of interest change of venue with [t]his county. They throwed [sic] away
my legal mail and would not sign or notarize[]. They [a]lso would [n]ot let me [r]eview T-C-A
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[law] library.” [Doc. 1 p. 5]. In his amended complaint, Plaintiff provides a few details about
one alleged incident in which he asserts that he was denied medical care [Doc. 12]. Specifically,
Plaintiff alleges that on February 1, 2016, he hurt his left shoulder in the showers at Marion
County Jail, that he filed several grievances with jail administrator Tammy Mcalpin stating that
he had an injury needing immediate attention, and that medical treatment was never given [Id. at
3–4]. Plaintiff also states in his amended complaint that he also had other medical conditions
from before imprisonment that needed continuous treatment, but that treatment was not given
[Id. at 4].
All of Plaintiff’s allegations in his complaint regarding a change of venue, legal mail,
notarization, and the law library are conclusory and unsupported by any specific facts. As such,
they fail to state a claim upon which relief may be granted under § 1983, Ashcroft, 556 U.S. at
681, and they will therefore be DISMISSED.
Further, while Plaintiff does set forth some facts regarding one incident in which he
asserts that he was denied medical care in his amended complaint, those allegations are that
Plaintiff submitted grievances regarding one need for medical care to Jail Administrator Tammy
Mcalpin and did not receive medical care for that medical need or for other medical needs. The
only Defendant Plaintiff has named in this action, however, is Sheriff Ronnie “Bo” Burnette. As
Plaintiff has not set forth any facts from which the Court can plausibly infer that Defendant
Burnette was personally involved in any alleged denial of medical care, it is apparent that
Plaintiff seeks to hold Defendant Sheriff Burnette liable for his claims under a theory of
respondeat superior. Under § 1983, however, “[l]iability cannot be based solely on the right to
control employees.”
Leach v. Shelby Cnty. Sheriff, 891 F.2d 1241, 1246 (6th Cir. 1989).
Accordingly, the complaint fails to state a claim upon which relief may be granted under § 1983
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as to Defendant Burnette in his individual capacity and all such individual capacity claims
against Defendant Burnette will be DISMISSED.
Also, as to Plaintiff’s claims against Defendant Burnette in his official capacity, it is
clearly established that official capacity suits are treated as against the governmental entity. See
Kentucky v. Graham, 473 U.S. 159, 165 (1985). Thus, in order to state such a claim, a plaintiff
must allege that a “policy or custom” enacted by the entity caused the alleged violation of
constitutional rights. Id. at 166. As Plaintiff has not alleged that any policy or custom caused
him any injury or set forth any facts from which the Court can plausibly infer such a claim, the
complaint likewise fails to state a claim against Defendant Burnette in his official capacity and
all such official capacity claims against Defendant Burnette will be DISMISSED.
Moreover, even if Plaintiff had sued Jail Administrator Tammy Mcalpin, the only
individual specifically named in his complaints, his only allegation as to Ms. Mcalpin is that she
did not respond to grievances he filed after a fall in the shower in which he stated that he had an
injury that needed medical treatment [Doc. 12 p. 4]. 2 Nothing in the complaint or amended
complaint suggests that Tammy Mcalpin is a medical provider or otherwise responsible for
providing medical care for prisoners, however, and a supervisor cannot be held liable under §
1983 for a mere failure to act. Greene v. Barber, 310 F.3d 889, 899 (6th Cir. 2002) (stating that
“[s]upervisory 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))); see also Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)
(holding that supervisory personnel’s knowledge of and failure to respond to a prisoner’s
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Plaintiff also states in his original complaint, which Plaintiff signed on February 10,
2016, nine days after Plaintiff’s alleged fall in the shower, that he had sent out medical requests
for treatment, which is the typical manner in which prisoners seek medical treatment [Doc. 1 p.
4].
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grievance and allegations of impropriety were insufficient to impose liability on supervisory
personnel under § 1983). Accordingly, Plaintiff has not set forth any facts from which the Court
can plausibly infer that Tammy Mcalpin is liable under § 1983 for a denial of medical care.
For the reasons set forth above, the Plaintiff’s complaint fails to state a claim upon which
relief may be granted under § 1983 and this action will therefore be DISMISSED. 28 U.S.C. §§
1915(e)(2)(B) and 1915(A)
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 ORDER WILL ENTER.
ENTER:
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UNITED STATES DISTRICT JUDGE
UNITED STATES DISTRICT
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