Phillips v. Bunch et al (VVV)
MEMORANDUM AND OPINION as set forth in following order. Signed by District Judge Pamela L Reeves on 4/18/17. (c/m)(ABF)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
RICKEY BUNCH, MICHAEL
PARRIS, and JANE DOE,
This is a pro se prisoner’s complaint under 42 U.S.C. § 1983. The Court has dismissed all
Defendants except Defendants Bunch, Parris, and Doe [Docs. 41 and 45]. Now before the Court
is a motion for entry of final judgment filed by former Defendants Cook, Garrett, Manis, and
Sexton [Doc. 46]. For the reasons set forth below, this motion for entry of final judgment [Doc.
46] will be GRANTED to the extent that the Court finds Defendant Doe should be dismissed and
that the claims against Defendants Bunch and Parris fail to state a claim upon which relief may be
granted under § 1983. This action will therefore be DISMISSED.
Defendant Jane Doe
Plaintiff has not attempted to amend his complaint to name a specific individual as the
nurse he named in this action as Defendant Jane Doe. As such, Plaintiff’s claims against Defendant
Jane Doe will be DISMISSED WITH PREJDUCE. See Cross v. City of Detroit, No. 06-11825,
2008 WL 2858407, at *1 (E.D. Mich. July 23, 2008) (dismissing sua sponte and with prejudice
the plaintiff’s civil rights violation claim against a police officer the plaintiff had named as John
Doe because the plaintiff “did not seek leave to amend the Complaint to name the John Doe
defendant prior to the expiration of the statute of limitations”); see also Smith v. City of Akron, 476
F. App’x 67, 69 (6th Cir. 2012) (holding that Rule 15(c) of the Federal Rules of Civil Procedure
offers no remedy when, like here, plaintiff “simply did not know whom to sue or opted not to find
out within the limitations period”).
Defendants Bunch and Parris
The Court will now screen the allegations of the complaint as they relate to Defendants
Bunch and Parris, as they are the only remaining Defendants.
District courts shall, at any time, sua sponte dismiss any claims filed in forma pauperis 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) The dismissal standard articulated by the Supreme Court in
Ashcroft v. Iqbal, 556 U.S. 662 (2009) and in Bell Atlantic Corp. v. Twombly, 550 U.S. 554 (2007)
“governs dismissals for failure state a claim under [28 U.S.C. §§ 1915(e)(2)(B] 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 screening, 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).
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); 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”).
Allegations of the Complaint
As to Defendant Bunch, Plaintiff alleges that he and others came to his cell to see how
many bottles of shampoo Plaintiff had and that Defendant Bunch inquired about Plaintiff’s
medications and ordered someone to take the medications and make sure Plaintiff was supposed
to have them [Doc. 2 p. 6]. Plaintiff also asserts that he later told Defendant Bunch that he had
been sick without his medications and that Defendant Bunch informed Plaintiff that his
medications had been stopped due to an allegation that Plaintiff had “snatched” his medicated
shampoo from nurse Jane Doe [Id. at 7].
As to Defendant Parris, Plaintiff alleges that he wrote to Defendant Parris about the denial
of his medications and that Defendant Parris said that he was leaving for another job and that there
was nothing that he could do [Id. at 6–7].
Nothing in the complaint allows the Court to plausibly infer that the actions of Defendants
Bunch and/or Parris violated Plaintiff’s constitutional rights. As set forth above, Plaintiff’s
complaint alleges that Defendant Bunch had Plaintiff’s medications seized to verify that Plaintiff
was supposed to have them. Nothing in the complaint suggests that Defendant Bunch was
responsible for Plaintiff not getting his medications back after a determination was made as to
whether Plaintiff was supposed to have them.1 Rather, Plaintiff attempts to hold Defendant Bunch
liable for the fact that Plaintiff was not given back his medications because Plaintiff later told
Defendant Bunch that he needed those medications and had not gotten them back. Similarly,
To the contrary, Plaintiff’s complaint suggests that other individuals were responsible for
Plaintiff not getting those medications back [Doc. 2 p. 8]
Plaintiff alleges that Defendant Parris failed to intervene to get Plaintiff’s medications back to him
after Plaintiff requested that he do so.
In a suit brought under § 1983, however, liability cannot be imposed solely on the basis of
respondeat superior. Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981); Bellamy v. Bradley, 729
F.2d 416, 421 (6th Cir. 1984). The law is well settled that a plaintiff must allege a defendant
official was personally involved in the unconstitutional activity of a subordinate in order to state a
claim against such a defendant. Dunn v. State of Tennessee, 697 F.2d 121, 128 (6th Cir. 1982).
Likewise, a supervisor cannot be held liable 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) (finding that knowledge of a prisoner’s grievance and a failure to
respond or remedy the complaint was insufficient to impose liability on supervisory personnel
under § 1983). Accordingly, Plaintiff’s claims against these Defendants are not cognizable under
§ 1983 and this action will be DISMISSED.
For the reasons set forth above, Defendant Doe is DISMISSED. Further, even liberally
construing the complaint in favor of Plaintiff, it fails to state a claim upon which relief may be
granted under § 1983 as to Defendants Bunch and Parris and they will be DISMISSED. As no
claims remain, this action will therefore be DISMISSED.
The Court CERTIFIES that any appeal from this action would not be taken in good faith
and would be totally frivolous. See Rule 24 of the Federal Rules of Appellate Procedure.
AN APPROPRIATE ORDER WILL ENTER.
UNITED STATES DISTRICT JUDGE
A S S
UNITED STATES DISTRICT
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