Russell v. Juvenile Court of Kingsport, Tennessee et al

Filing 4

MEMORANDUM AND ORDER: This action will be DISMISSED sua sponte for failure to state a claim upon which relief can be granted under § 1983. In addition to the above, this Court has carefully reviewed this case pursuant to 28 U.S .C. § 1915(a) and hereby CERTIFIES any appeal from this action would not be taken in good faith and would be totally frivolous. A separate judgment will enter. Signed by District Judge J Ronnie Greer on 6/3/2015. (c/m to pro se plaintiff) (RLC, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE

DION ANDRES RUSSELL,
Plaintiff,
v.
JUVENILE COURT OF KINGSPORT,
TENNESSEE, SULLIVAN COUNTY
JAIL, LINDA ONKOTZ, and SANDRA S.
SPIVEY,
Defendants.

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No. 2:15-cv-13-JRG-DHI

MEMORANDUM and ORDER

This is a pro se civil rights fee-paid complaint for injunctive relief and damages pursuant
to 42 U.S.C. § 1983, filed by a prisoner in the Sullivan County Detention Center1, [Doc. 1].
However, for the reasons stated below, process shall not issue and this action will be
DISMISSED.
In order to state a claim under 42 U.S.C. § 1983, a plaintiff must establish he was
deprived of a federal right by a person acting under color of state law. Black v. Barberton
Citizens Hospital, 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) ("Section 1983 does not itself
create any constitutional rights; it creates a right of action for the vindication of constitutional
guarantees found elsewhere.").
1

Since filing this case, plaintiff has been released from confinement, [Doc. 3, Notice of Address Change].

Under the Prison Litigation Reform Act (PLRA), district courts must screen prisoner
complaints and sua sponte dismiss those which are frivolous or malicious, fail to state a claim for
relief, or are against a defendant who is immune. See, e.g., Benson v. O'Brian, 179 F.3d 1014
(6th Cir. 1999).
Responding to a perceived deluge of frivolous lawsuits, and, in particular,
frivolous prisoner suits, Congress directed the federal courts to review or "screen"
certain complaints sua sponte and to dismiss those that failed to state a claim upon
which relief could be granted, that sought monetary relief from a defendant
immune from such relief, or that were frivolous or malicious.
Id. at 1015-16 (6th Cir. 1999) (citing 28 U.S.C. §§ 1915(e)(2) and 1915A).
In screening this complaint, the Court bears in mind 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). Still, the pleading
must be sufficient "to state a claim to relief that is plausible on its face," Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007), which simply means that the factual content pled by a
plaintiff must permit a court "to draw the reasonable inference that the defendant is liable for the
misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at
556). The “facial plausibility” standard does not require “detailed factual allegations, but it
demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at 678
(citations and internal quotation marks omitted).
Conclusory allegations and unwarranted inferences from alleged facts need not be
accepted as true. Newberry v. Silverman, No. 14-3882, 2015 WL 3422781, at *2 (6th Cir. May
29, 2015). The standard articulated in Twombly and Iqbal “governs dismissals for failure state a
claim under [28 U.S.C. § 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).

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The complaint, according to plaintiff, alleges two claims: one for violations of his rights
during proceedings in the Juvenile Court system in Kingsport, Tennessee, and one concerning
his incarceration upon a mittimus issued by the Juvenile Court. The Court examines each claim
in turn under the relevant standards.
1.

Claim One
A.

Plaintiff’s Allegations

The factual allegations which follow are offered in support of the first claim. Documents
from the Juvenile Court are confusing and contain misinformation. For example, the heading of
“General Sessions” is stricken through on the mittimus and is replaced by the handwritten word
“Juvenile.” Also, the Child Custody Court and the Child Support Court have different rules on
contempt and both state courts have manipulated the rules and exhibited bias in the courtroom
towards plaintiff.
Furthermore, following plaintiff’s incarceration on a contempt charge, the Child Support
Court was supposed to refer him to the Child Custody Court to establish a parenting plan, but
while the Child Support Court gives him a monthly court date to ascertain whether plaintiff has
paid his child custody payments and while the Child Custody Court establishes a parenting plan,
the Child Custody Court never follows through to see if the plan is working.
Plaintiff is required to drive to Blountville, Tennessee, for his court dates, whereas some
individuals which whom he was incarcerated have court dates set in Kingsport. This imposes a
hardship on plaintiff, who had his driving privileges suspended for child support arrearage. But
when he complained to defendant Linda Onkotz, the Child Support Magistrate, her demeanor
towards him was aggressive. It became more aggressive and also humiliating after several

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unpleasant exchanges he had with her during those court proceedings and the proceedings which
occurred subsequently.
Defendant Sandra S. Spivey, an Assistant Attorney General who is involved in the
proceedings, also displays rude and intimidating conduct towards plaintiff and treats him like the
scum of the earth, which of course humiliates him. She and Magistrate Onkotz subject men to
mass incarceration, which disrupts their relationships with their children and which is not in the
best interests of those children and their families.
B.

Law & Analysis

At the outset, one of the defendants involved in this claim is not subject to suit under §
1983. The lead defendant, the Juvenile Court of Kingsport, Tennessee, is a state court, and the
Sixth Circuit has held that a state court is not a “person” subject to suit under § 1983. Mumford v.
Basinski, 105 F.3d 264, 267 (6th Cir.1997) (citing Mumford v. Zieba, 4 F.3d 429, 435 (6th
Cir.1993), in turn citing Foster v. Walsh, 864 F.2d 416, 418 (6th Cir.1988)). Accordingly, any
allegations against the Juvenile Court of Kingsport, Tennessee, fail to state a claim upon which
relief may be granted.
The other two defendants tied to the allegations in this claim enjoy immunity from a suit
for damages because all their challenged actions were taken within the scope of their jurisdiction,
duties, and functions. A judicial officer, such as Child Support Magistrate Linda Onkotz, enjoys
absolute immunity from lawsuits for monetary damages while performing her judicial functions.
Mireles v. Waco, 502 U.S. 9, 9-10 (1991) (per curiam); Mann v. Conlin, 22 F.3d 100, 103, (6th
Cir. 1994).

Scheduling dates and venues for court proceedings lies within the scope of

Magistrate Onkotz’s jurisdiction. While the alleged aggressive and rude demeanor of this

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judicial officer is unfortunate, it does not remove her cloak of judicial immunity. Therefore,
defendant Onkotz has judicial immunity from the claims for damages in this lawsuit.
Likewise, it is well-settled that prosecutors, acting within the scope of their duties in
initiating and pursuing a criminal prosecution and presenting the state’s case, enjoy absolute
immunity from a civil suit for damages. Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976).
There is nothing to indicate that Assistant Attorney General Sandra Spivey was doing anything
except performing the duties of her office in prosecuting a child support arrearage case and, thus,
she enjoys prosecutorial immunity from damages sought in this lawsuit. See Eldridge v. Gibson,
332 F.3d 1019, 1021 (6th Cir. 2003) (citing Mowbray v. Cameron Co., Tex., 274 F.3d 269, 276
(5th Cir. 2001)).

Defendant Spivey’s alleged rude and intimidating conduct, if true, is

unprofessional but it does not affect her prosecutorial immunity.
Therefore, the claims against defendants Onkotz and Spivey fail, based on their absolute
immunity from this action for damages.
To the extent that plaintiff’s incarceration stems from findings or rulings made in his
child support case, his request for release from confinement cannot be brought in this
Court under the aegis of a § 1983 suit, but must be made in a petition for a writ of habeas corpus
under 28 U.S.C. § 2254, in which he may challenge his conviction, after he exhausts his state
court remedies. See 28 U.S.C. § 2254(b)(1); Heck v. Humphrey, 512 U.S. 477, 486 (1994)
(observing “the hoary principle that civil tort actions are not appropriate vehicles for challenging
the validity of outstanding criminal judgments”); Rose v. Lundy, 455 U.S. 509 (1982) (finding
that federal claims must be completely exhausted in the state courts before seeking federal
habeas corpus relief); Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (a claim attacking the
duration of a state prisoner’s confinement must be raised in a § 2254 petition.

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2.

Claim Two
A.

Plaintiff’s Allegations

The first contention in this bundle of allegations is that plaintiff’s multiple requests to be
allowed access to the law library at the Sullivan County jail were ignored or denied. Once, when
plaintiff wrote to the Administrative Lieutenant asking to go to the law library and for assistance
in filing a civil rights action regarding his confinement, the Lieutenant’s only response was to
return to plaintiff the letter, to which was stapled a § 1983 form complaint. Other letters and
grievances plaintiff authored similarly were ignored.
Plaintiff asserts that on July 26, 2014, a cellmate made racist jokes about the nurse and
plaintiff told him to leave the cell. Officers Pritz and Ball pulled both inmates from the cell,
discussed the matter with them, told plaintiff to pack his belongings, moved him to y-cell for one
minute, then moved him to u-cell. In u-cell, plaintiff was approached by inmates on whose
bodies were displayed swastika tattoos and who told him either to get on the door or to fight.
One of those inmates commented that the officers must be really mad at plaintiff for them to
place him in u-cell. Plaintiff kicked the door to signal his distress until an officer responded.
The officer removed plaintiff from u-cell but placed him in the “hole,” where he slept on
the floor that night. The next morning, plaintiff asked for cleaning supplies to clean the dirty
cell, but none were furnished. The following day, plaintiff and his cell-mate filled out grievances
and five minutes after they slid them beneath the door, cleaning supplies were delivered to the
cell. While plaintiff was in the hole, his food was tampered with and he refused to eat.
Plaintiff was moved back to y-cell, where the oatmeal on his breakfast tray had a roach in
it. Plaintiff sent it back to the kitchen, but the replacement tray also contained a roach. Plaintiff
filed grievances concerning this matter also.

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On October 5, 2014, plaintiff received a letter from his attorney, informing him that
counsel had been to the jail to visit him on a couple of occasions, but that the officers did not
bring plaintiff out to meet with counsel.
Plaintiff alleges that Officers Ball, Ramsey, and Pritz have intimidated him and have not
attended to his safety needs. Officer Ball knew when he placed plaintiff in u-cell that black or
darker-skinned people could not live in that cell because the officer had done the same thing to
another Native American inmate. Furthermore, every cell in the jail has swastikas and other
gang-related paintings on the walls and doors. The shower walls have black mold on them,
which has been covered up by plastic. Also, plaintiff had a sore under his nose for a month that
was hard to heal.
B.

Law & Analysis

Once again, the defendant against whom these allegations are being made is not subject
to suit under § 1983. The Sullivan County jail is a building and not a suable entity within the
meaning of 42 U.S.C. § 1983. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 688–90 and n.55
(1978) (for purposes of a § 1983 action, a “person” includes individuals and “bodies politic and
corporate”); De La Garza v. Kandiyohi County Jail, 18 F. App'x 436, 437 (8th Cir. 2001) (stating
that neither a county jail nor a sheriff's department is a suable entity); Marbry v. Corr. Medical
Servs., 2000 WL 1720959, at *2 (6th Cir. Nov. 6, 2000) (holding that “the Shelby County Jail is
not an entity subject to suit under § 1983”) (citing Rhodes v. McDannel, 945 F.2d 117, 120 (6th
Cir. 1991)); Cage v. Kent County Corr. Facility, 1997 WL 225647, at *1 (6th Cir. May 1, 1997)
(stating that “[t]he district court also properly found that the jail facility named as a defendant
was not an entity subject to suit under § 1983.”).

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Though plaintiff has made allegations against Officers Ball, Ketron, Hulse, Ramsey, and
Pritz, he has not named these individuals as defendants. But even if these officers had been
named as defendants, plaintiff would not have stated a claim against them.
Plaintiff’s allegations concerning denials of access to the jail law library could not
proceed in any event. It is true that prisoners have a constitutional right of access to the courts,
Bounds v. Smith, 430 U.S. 817, 821 (1977), but they do not have an abstract, freestanding right to
a law library in prison. Lewis v. Casey, 518 U.S. 343, 351 (1996). To state a claim for denial of
access to the courts, a plaintiff must show prejudice, such as the late filing of a court document
or the dismissal of a non-frivolous claim, resulting from the inadequate jail law library. Pilgrim
v. Littlefield, 92 F.3d 414, 415-16 (6th Cir. 1996) (citing Lewis, 518 U.S. at 351).
While plaintiff maintains that he asked for help in filing a civil rights suit concerning jail
conditions, he was not hindered in this regard since he has filed the instant § 1983 case,
complaining about those conditions. Thus, there is no allegation of actual prejudice.
Complaints about jail conditions fall within the scope of the “Cruel and Unusual
Punishments” provision in the Eighth Amendment, which prohibits conditions which involve the
wanton and unnecessary infliction of pain and result in the serious deprivation of basic human
needs.

Rhodes v. Chapman, 452 U.S. 337, 346-47 (1981). An Eighth Amendment claim is

comprised of two elements: an objective element, which means that a plaintiff has alleged a
sufficiently serious deprivation, and a subjective element, which requires that he demonstrate
that a defendant possessed a state of mind of deliberate indifference. Farmer v. Brennan, 511
U.S. 825, 834 (1994). A prison condition will be sufficiently serious so as to satisfy the first
component of an Eighth Amendment claim if it denies a plaintiff “the minimal civilized measure
of life’s necessities.” Rhodes, 452 U.S. at 47-48; Tillery v. Owens, 907 F.2d 418, (3rd Cir. 1990)

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(“Although prisoners are, undeniably, sent to prison as punishment, the prison environment itself
may not be so brutal or unhealthy as to be itself a punishment”).
However, only extreme deprivations can be characterized as punishment prohibited by
the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 8-9 (1992). When prison conditions
are concerned, an extreme deprivation is one "so grave that it violates contemporary standards of
decency to expose anyone unwillingly to such a risk. In other words, the prisoner must show that
the risk of which he complains is not one that today's society chooses to tolerate." Helling v.
McKinney, 509 U.S. 25, 36 (1993) (emphasis in original). Also, the length of time that an inmate
is subjected to certain conditions of confinement is relevant in determining whether the
confinement meets constitutional standards. See Hutto v. Finney, 437 U.S. 683, 686-87 (1978)
(remarking that “[a] filthy, overcrowded cell and a diet of 'grue' might be tolerable for a few days
and intolerably cruel for weeks or months").
To establish deliberate indifference, a plaintiff must plausibly allege that defendants were
aware of facts from which they could infer that he faced a substantial risk of harm and that they
actually drew that inference. Farmer, 511 U.S. at 837.
Plaintiff’s brief confinement in u-cell, where he was threatened by swastika-tattooed
inmates is lacking in both objective and subjective components. Given the short interlude
between plaintiff’s being placed in u-cell and his removal from that cell, upon his protest at
being confined therein, it is unlikely that he has shown that “the risk of which he complains is
not one that today's society chooses to tolerate.” Furthermore, there is nothing to establish that
that the officers who placed plaintiff in u-cell knew and also drew the inference that plaintiff
confronted a substantial risk of harm as a result of that placement. Id. Even if the Court
assumed the existence of that knowledge and the drawing of that inference, the officers took

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reasonable steps to eliminate the risk by moving plaintiff to another cell. Id. at 835 36 (finding
that a prison official who takes reasonable measures to abate the risk avoids liability, even if the
harm ultimately is not averted).
Plaintiff’s contentions that he slept on the floor one night, that he was denied cleaning
supplies for more than a day, that the shower walls had black mold underneath plastic coverings,
that his food was tampered with, and that his breakfast tray and his replacement tray both
contained a roach are not the kind of serious deprivations for which the Eighth Amendment
provides a remedy. These cited conditions were of brief duration or seemingly were one-time
occurrences, and they cannot be said to inflict wanton and unnecessary punishment upon
plaintiff. Plaintiff’s allegations about these kinds of inconveniences do not rise to the level of
constitutional violations. Harris v. Fleming, 839 F.2d 1232, 1235 (7th Cir. 1988) (“Inmates
cannot expect the amenities, conveniences and services of a good hotel.”).
As to the allegation that swastikas and other gang-related indicia are on the walls and
doors of cells, these depictions are deplorable to some and undoubtedly offensive to society at
large, cf. Hill v. Tilton, No. 2:07-CV-01449-MMS, 2009 WL 734130, at *4 (E.D. Cal. Mar. 18,
2009) (finding that the admission of evidence of a criminal defendant’s tattoos depicting “Nazi
symbols and signs and insignia” would likely have negatively prejudiced defendant’s jury trial),
but they are not prohibited by the Constitution. See e.g., Cohen v. California, 403 U.S. 15, 21,
24-25 (1971) (finding that “the form or content of individual expression,” including offensive
messages, are “matters of taste and style [left] . . . largely to the individual” and an unwilling
viewer’s exposure to them does not justify their automatic curtailment).
Plaintiff does not assert that the insignia was emblazoned on the walls and doors by the
officers, nor that the officers solicited or encouraged the inmates, who are likely the misdirected

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artists, to inscribe those challenged depictions on the walls and doors, nor that he reported the
objectionable insignia to jail officials. At bottom, plaintiff is alleging that the officers neglected
to remove the insignia which he found offensive from the walls and the doors of the jail.
However, the state of mind required to show an Eighth Amendment violation is deliberate
indifference and is not satisfied by an allegation of mere negligence. See Davis v. Fentress Cnty.
Tennessee, 6 F. App'x 243, 250 (6th Cir. 2001) (“Farmer makes it clear that mere negligence is
not enough to make out an Eighth Amendment violation.”) (citing Farmer, 511 U.S. at 835).
The contention regarding correspondence from his attorney (i.e., the letter in which
counsel stated that his attempts to visit with his client at the jail were thwarted when officers
failed to bring plaintiff out to meet with counsel) are construed to be a claim for interference in
the attorney-client relationship.
“[I]nmates must have a reasonable opportunity to seek and receive the assistance of
attorneys” and “[r]egulations and practices that unjustifiably obstruct the availability of
professional representation or other aspects of the right of access to the courts are invalid.”
Procunier v. Martinez, 416 U.S. 396, 419 (1974). To prevail on a § 1983 claim for a violation of
the Sixth Amendment, plaintiff must establish: 1) an intrusion into attorney-client
communication and 2) some prejudice to him. Weatherford v. Bursey, 429 U.S. 545, 558 (1977).
Communication between attorneys and clients is important, but, here, plaintiff has offered
nothing to suggest that the actions complained of have resulted in prejudice. Absent some kind of
claimed interference with his relationship with his attorney or prejudice to his defense, plaintiff
fails to state a § 1983 claim for an infringement of his Sixth Amendment right. See Stanley v.
Vining, 602 F.3d 767, 770 (6th Cir. 2010) (where prisoner did not contend that a defendant’s
questioned actions created a barrier to inmate’s relationship with his lawyer, he failed to state a

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cognizable Sixth Amendment claim for a deprivation of his right to counsel) (citing Wolff v.
McDonnell, 418 U.S. 539, 576-77 (1974) for its holding that “[a]s to the Sixth Amendment, its
reach is only to protect the attorney-client relationship from intrusion in the criminal setting
...”)).
Even if the Court assumes, without finding, that black mold on the shower wall sheathed
in plastic constitutes a type of grave deprivation which society is unwilling to tolerate, plaintiff
has not asserted that he told anyone about the black mold, that it was making him sick, or that
any defendant was aware of the black mold and of its effects on plaintiff, which would support
an inference that the black mold posed a serious risk of harm to plaintiff and that a defendant
actually drew that inference. It would be impossible for a defendant to disregard an excessive
risk of serious harm of which he knew nothing. Farmer, 511 U.S. at 837 (“[A] prison official
cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of
confinement unless the official knows of and disregards an excessive risk to inmate health or
safety.”). Thus, plaintiff has not stated a claim in this regard.
Finally, plaintiff’s assertion that he had a sore under his nose for a month that was hard to
heal likewise fails to state an Eighth Amendment claim. While deliberate indifference to the
serious medical needs of prisoners violates the Eighth Amendment, Estelle v. Gamble, 404 U.S.
97, 104 (1976), plaintiff has not stated sufficient facts to show that the sore constituted a serious
medical need nor that he requested medical treatment for his sore but was denied such treatment
by a defendant, so as to demonstrate the requisite state of mind of deliberate indifference.
Although this Court is mindful that a pro se complaint is to be liberally construed, Haines
v. Kerner, 404 U.S. 519, 520-21 (1972), it concludes that plaintiff has not alleged the deprivation
of any constitutionally protected right, privilege or immunity, and, therefore, the Court finds that

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his multiple allegations fail to state claims for relief. 28 U.S.C. § 1915A. Therefore, this action
will be DISMISSED sua sponte for failure to state a claim upon which relief can be granted
under § 1983.
In addition to the above, this Court has carefully reviewed this case pursuant to 28 U.S.C.
§ 1915(a) and hereby CERTIFIES any appeal from this action would not be taken in good faith
and would be totally frivolous.
A separate judgment will enter.

ENTER:

s/J. RONNIE GREER
UNITED STATES DISTRICT JUDGE

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