Newell v. Ford et al

Filing 41

MEMORANDUM AND ORDER: The Clerk is DIRECTED to send Plaintiff a service packet. Plaintiff is ORDERED to complete the service packet as to Defendant Middleton and to return it to the Clerk's office within twenty-one (21) days of the date on this Order. Signed by District Judge Pamela L Reeves on 3/24/17. (c/m along with blank summons and USM 285 form(JBR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
at CHATTANOOGA
JIMMY JOSEPH NEWELL,
Plaintiff,
v.
J. MIDDLETON, Corporal,
Defendant.

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No.: 1:17-cv-00076
REEVES/STEGER

MEMORANDUM and ORDER

Following the partial dismissal of state prisoner Jimmy Joseph Newell’s pro se civil rights
complaint under 42 U.S.C. § 1983 and two unsuccessful appeals, the Western District transferred
the case to this Court [Doc. 39]. The complaint was screened prior to the transfer, and a single
claim survived the screening process [Doc. 27]. That claim is that Defendant Corporal J.
Middleton, a correctional officer at the Bledsoe County Correctional Complex (BCCX) in
Pikeville, Tennessee, used excessive force against Plaintiff Newell by slamming him against a bus
at the Charles Bass Correctional Complex in Nashville, Tennessee, while Plaintiff was enroute
from the BCCX to another Tennessee prison in Whiteville, Tennessee. [Docs. 27 and 33].
Under the Eighth Amendment, the use of excessive force against prisoners may constitute
cruel and unusual punishment. Hudson v. McMillian, 503 U.S. 1, 5 (1992); Burgess v. Fischer,
735 F.3d 462, 472 (6th Cir. 2013) (noting that “the Eighth Amendment’s ban on cruel and unusual
punishment bars excessive force against convicted persons”). Even so, not every use of intentio na l
force on a prisoner by a prison official will rise to the level of an Eighth Amendment violatio n.
See Parrish v. Johnson, 800 F.2d 600, 604 (6th Cir. 1986). “[T]he good faith use of physical force

in pursuit of valid penological or institutional goals will rarely, if ever, violate the Eighth
Amendment.” Id.
Inasmuch as the transferor district court found that Plaintiff stated a plausible excessive
force claim against Defendant Middleton, the Clerk is DIRECTED to send Plaintiff a service
packet. (The packet contains a blank summons and USM 285 form.) Plaintiff is ORDERED to
complete the service packet as to Defendant Middleton and to return it to the Clerk’s office within
twenty-one (21) days of the date on this Order. Plaintiff is forewarned that failure to return the
completed service packet within the time required could jeopardize his prosecution of this action.
When the completed service packet is received, the summons will be signed and sealed by the
Clerk and forwarded to the U.S. Marshal for service upon Defendant Middleton.

Defendant is

ORDERED to respond to the complaint in the manner and within the time required by the Federal
Rules of Civil Procedure.
Plaintiff is ORDERED to inform the Court of any address change within fourteen (14)
days following such change. Plaintiff is cautioned that his failure to do so will result in a dismissa l
of this action for failure to prosecute.
SO ORDERED.

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UNITED STATES DISTRIC T JUDGE
UNITED STATES DISTRICT
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S I T C

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