Hensley v. Blount County Jail et al (ASH)
Filing
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MEMORANDUM OPINION in support of the following Order dismissing case. Signed by District Judge Pamela L. Reeves on 3/14/18. (c/m to Jason Lee Hensley362775 BLEDSOE COUNTY JAIL PO BOX 246 PIKEVILLE, TN 37367) (ADA)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
JASON LEE HENSLEY,
Plaintiff,
v.
BLOUNT COUNTY JAIL, SOUTHERN
HEALTH PARTNERS, CHERYL
HOUSEHOLDER, CPL BISHOP,
CHIEF FRENCH, CAPTAIN ADAMS,
BLOUNT COUNTY JAIL MEDICAL
STAFF AND ADMINISTRATION,
STACY GRAINGER, QUESINBERRY
SMITH, and LT. GREGORY,
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No. 3:15-cv-00019
REEVES/GUYTON
Defendants.
MEMORANDUM OPINION
Before the Court is Plaintiff’s pro se complaint for violation of civil rights pursuant to 42
U.S.C. § 1983 [Doc. 2] and motion for leave to proceed in forma pauperis [Doc. 1]. For the
reasons discussed below, Plaintiff’s request to proceed in forma pauperis [Doc. 1] will be
GRANTED, and Plaintiff’s complaint will be DISMISSED sua sponte.
I.
FILING FEE
Under the Prison Litigation Reform Act (“PLRA”), any prisoner who files a complaint in
a district court must tender the full filing fee or file (1) an application to proceed in forma pauperis
without prepayment of fees and (2) a certified copy of his inmate trust account for the previous
six-month period. 28 U.S.C. § 1915(a)(2). On January 14, 2015, Plaintiff submitted a fully
compliant application [Doc. 1], and it appears from his application that he lacks sufficient financial
resources to pay the $350.00 filing fee. Accordingly, Plaintiff’s motion for leave to proceed in
forma pauperis [Doc. 1] is GRANTED and, pursuant to 28 U.S.C. § 1915, the Clerk is
DIRECTED to file this action without the prepayment of costs or fees or security therefor as of
the date the Complaint was received. However, because Plaintiff is no longer incarcerated, the
Court will not assess a filing fee at this time.1
II.
BACKGROUND
Plaintiff filed this complaint under 42 U.S.C. § 1983 on January 14, 2015 against
Defendants Blount County Jail, Southern Health Partners (“SHP”), Cheryl Householder
(“Householder”), Cpl Bishop (“Bishop”), Chief French (“French”), Captain Adams (“Adams”),
Lt. Gregory (“Gregory”), Stacy Grainger (“Grainger”), Quesinberry Smith (“Smith”), and the
Blount County Jail Medical Staff and Administration, for alleged violations of his constitutional
rights occurring while he was confined at the Blount County Jail [Doc. 2].
Plaintiff alleges that he failed to receive proper medical care at the Blount County Jail
[Doc. 2 p. 3]. Initially, Plaintiff claims that he was seen by a doctor and provided treatment for
scabies after the doctor prescribed steroids [Id.]. After Plaintiff’s health issues continued, Plaintiff
alleges that he was “put back on steroids that helped some[,] but didn’t solve [the] issue” [Id. at
4]. Plaintiff claims that he continued to suffer “scratch marks, bumps, [and] sores from [his]
ailment” [Id.]. After Plaintiff informed Defendant Bishop about his continued pain, a nurse
provided Plaintiff with a dish soap that he was not allergic to, as well as lotion [Id. at 4].
Plaintiff also claims that he was provided different treatment for his scabies because he
was a “county inmate” [Id. at 6]. Specifically, Plaintiff alleges that a federal inmate was detained
at the Blount County Jail, and was provided with immediate treatment and prescribed
1
A search of the Tennessee Felony Offender Information website indicates that Plaintiff
was released from incarceration on January 24, 2018. See https://apps.tn.gov/foil-app/results.jsp.
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“permethine” to treat his symptoms [Id.]. However, Plaintiff claims that “it took almost 3 months
before the doctor gave me the same treatment,” because Plaintiff was an indigent, county inmate
[Id.]. Plaintiff alleges that his scabies were “intensified” due to subsequent nerve damage [Id. at
7]. Plaintiff also claims that he is hypoglycemic, and “medical refuses to give [him] pm
sandwiches for [his] low blood sugar” [Id.]. Lastly, Plaintiff alleges that he is supposed to be
placed in the bottom bunk due to medical restrictions, but “medical absolutely refuses to be
professional with my medical situation” [Id.].
Further, Plaintiff claims that he “was charged for [his] asthma inhaler 4 times with only 2
inhalers” [Id. at 4]. Additionally, Plaintiff claims that he was also charged twice for his medication
after getting a tooth pulled, although he only took one dose [Id. at 6]. Plaintiff then filed a
grievance requesting to be refunded his money for the unused medication [Id.]. However, Plaintiff
claims that he was retaliated against by correctional officers at the Blount County Jail for
attempting to file grievances [Id. at 4]. He claims that “[i]n the process of turning in grievance
request forms, I was cussed twice, written up once, and punished with loss of visits” [Id. at 7].
Plaintiff also alleges that the nurses made derogatory statements about him to other inmates and
correctional officers [Id. at 4]. He claims that he was “cussed [out]” by Defendant Householder
for asking if he was on the sick call list [Id. at 7]. Plaintiff has attached several general request
forms, grievances, and sick call requests [Id. at 8–20].
Plaintiff requests monetary damages for his pain and suffering, for the Court to discipline
and order the firing of several Defendants, for the Court to “fix [the] grievance system at Blount
Co. Jail,” and for Plaintiff to be removed from the Blount County Jail [Id. at 5].
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III.
ANALYSIS
A.
Screening Standard
Under the PLRA, district courts must screen prisoner complaints and sua sponte dismiss
those that are frivolous or malicious, fail to state a claim for relief or are against a defendant who
is immune. See Benson v. O’Brian, 179 F.3d 1014, 1015–16 (6th Cir. 1999) (“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 [or] . . . sought monetary relief from a
defendant immune from such relief.”). 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 to state a claim under [28 U.S.C. §§ 1915(e)(2)(B) and
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). However,
“a district court must (1) view the complaint in the light most favorable to the plaintiff and (2) take
all well-pleaded factual allegations as true.” Tackett v. M&G Polymers, 561 F.3d 478, 488 (6th
Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (citations omitted)).
To state a claim under 42 U.S.C. § 1983, a plaintiff must establish that they were 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
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elsewhere."). In other words, Plaintiff must plead facts sufficient to show: (1) the deprivation of
a right, privilege, or immunity secured to her by the United States Constitution or other federal
law; and (2) that the individual responsible for such deprivation was acting under color of state
law. Gregory v. Shelby Cty., 220 F.3d 433, 441 (6th Cir. 2000).
B.
Improper Defendants
At the outset, Plaintiff has brought suit against the Blount County Jail, a non-suable entity
under 42 U.S.C. § 1983. The Blount County Jail is a building which serves as a place of
confinement for those in custody, and it is not a “person” under § 1983. See Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 689–90 n.53 (1978) (finding that only “bodies politic” are “persons”
who can be sued under 42 U.S.C. § 1983); Marbry v. Corr. Med. Serv., No. 99-6706, 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 Cty. Corr. Facility, No. 96-1167, 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”). Thus, the Blount County Jail will be DISMISSED as a Defendant
in this action.
Additionally, the Blount County Jail Medical Staff is not a “person” subject to suit within
the terms of § 1983. See Monell, 436 U.S. at 689–690 n.53; see also Hix v. Tenn. Dep’t of Corr.,
196 F. App’x 350, 355 (6th Cir. 2006) (concluding “that the defendant medical departments are
not ‘persons’ under § 1983”); Anderson v. Morgan County Corr. Facility, No. 3:14–cv–516, 2015
WL 7281665, at *3 (E.D. Tenn. Nov. 17, 2015) (finding that the jail medical staff is a non-suable
entity under § 1983). Similarly, the jail administration is merely an arm of the Blount County Jail,
which itself is not a suable entity. See Monell, 436 U.S. at 688–90; see, e.g., Guy v. Jail, No. 5:15-
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cv-75, 2016 WL 775719, at *2 (S.D. Ga. Jan. 29, 2016) (stating “even if Plaintiff has named the
‘jail administration’ as a Defendant, he has still failed to name any person that deprived him of
some constitutional right as is required to state a plausible Section 1983 claim”); Barney v.
Broomfield Cty. Jail Admin., No. 1:06-CV-01216, 2006 WL 2226240, at *1 (D. Colo. Aug. 2,
2006) (holding “[t]he Broomfield County Jail Administration is not a separate entity from
Broomfield County and, thus, is not a person under 42 U.S.C. § 1983”). Therefore, Plaintiff’s
claims against the Blount County Jail Medical Staff and Administration fail to state a claim for
relief under § 1983, and the Blount County Jail Medical Staff and Administration will be
DISMISSED as Defendants.
C.
Lack of Personal Involvement
In his complaint, Plaintiff fails to include any factual allegations against Defendants
French, Adams, or Gregory.
A defendant’s personal involvement in the deprivation of
constitutional rights is required to establish their liability under § 1983. Polk Cty. v. Dodson, 454
U.S. 312, 325 (1981); Miller v. Calhoun Cty., 408 F.3d 803, 817 n.5 (6th Cir. 2005). Further, it is
a basic pleading requirement that a plaintiff attribute factual allegations to particular defendants.
See Twombly, 550 U.S. at 544 (holding that, in order to state a claim, a plaintiff must make
sufficient allegations to give a defendant fair notice of the claim); Frazier v. Michigan, 41 F. App’x
762, 764 (6th Cir. 2002) (dismissing plaintiff’s claims where the complaint did not allege with any
degree of specificity which of the named defendants were personally involved in or responsible
for each alleged violation of constitutional rights).
Additionally, these Defendants cannot be held liable as supervisors.
Under § 1983,
“[g]overnment officials may not be held liable for the unconstitutional conduct of their
subordinates under a theory of respondeat superior.” Ashcroft v. Iqbal, 556 U.S. at 676; see
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also Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984). Thus, “a plaintiff must plead that each
Government-official defendant, through the official’s own official actions, violated the
Constitution.” Iqbal, 556 U.S. at 676. A plaintiff must show “that the supervisor encouraged the
specific instance of misconduct or in some other way directly participated in it.” Bellamy, 729
F.2d at 421 (internal citation omitted). Lastly, the potential role of Defendants French, Adams, or
Gregory in denying Plaintiff’s grievances are not sufficient to establish a claim of deliberate
indifference. See Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (holding supervisor and
administrators not liable merely because they failed to intervene or act upon prisoner’s
complaint); Yoder v. Seals, No. 3:07–cv–436, 2009 WL 737099, at *4 (E.D. Tenn. Mar. 19,
2009) (“A combination of knowledge of a prisoner’s grievance and failure to respond or remedy
the complaint is insufficient to impose liability upon supervisory personnel under § 1983”)
(internal quotations and citations omitted).
Generous construction of pro se complaints is not limitless; indeed, a court need not assume
or conjure up claims that a pro se litigant has not pleaded. Martin v. Overton, 391 F.3d 710, 714
(6th Cir. 2004). Plaintiff must affirmatively show that each Defendant he seeks to hold liable,
through that Defendant’s own actions, has violated his constitutional rights. Robertson v. Lucas,
753 F.3d 606, 615 (6th Cir. 2014). Plaintiff’s complaint fails to allege the involvement of
Defendants French, Adams, or Gregory in violating his constitutional rights. Thus, Plaintiff has
failed to state a claim which would entitle him to relief under § 1983 against Defendants French,
Adams, or Gregory, and they will be DISMISSED as Defendants.
D.
Medical Deliberate Indifference Claims
Plaintiff claims that he did not receive proper medical care at the Blount County Jail, as he
challenges the treatment he received for his scabies [Doc. 2 p. 3]. Also, Plaintiff claims that
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medical staff refused to provide him with sandwiches for his low blood sugar and failed to enforce
Plaintiff’s placement on a bottom bunk [Id. at 3–7].
A prison authority’s deliberate indifference to an inmate’s serious medical needs violates
the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104–05 (1976). An Eighth Amendment
claim is composed of two parts: an objective component, which requires a plaintiff to show a
“sufficiently serious” deprivation, and a subjective component, which requires him to show a
sufficiently culpable state of mind—one of “deliberate indifference.” Farmer v. Brennan, 511
U.S. 825, 834 (1994). However, a prisoner whose claims are based on a theory of medical
negligence has not stated a claim under § 1983 because medical malpractice is not a constitutional
violation. Estelle, 429 U.S. at 104–06.
Additionally, no claim is stated where some medical treatment is provided, and the dispute
is over the adequacy of such treatment. See Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir.
1976).
For example, “[w]hen a prison doctor provides treatment, albeit carelessly or
inefficaciously to a prisoner, he has not displayed a deliberate indifference to the prisoner’s needs,
but merely a degree of incompetence which does not rise to the level of a constitutional violation.”
Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001); but see Perez v. Oakland Cty., 466 F.3d
416, 424–25 (6th Cir. 2006) (noting that “deliberate indifference may be established by a showing
of grossly inadequate care, as well as [by] a decision to take an easier but less efficacious course
of treatment”). Similiarly, “[w]hen prison officials are aware of a prisoner’s obvious and serious
need for medical treatment and delay medical treatment of that condition for non-medical reasons,
their conduct in causing the delay creates [a] constitutional infirmity.” Blackmore v. Kalamazoo
Cty., 390 F.3d 890, 899 (6th Cir. 2004).
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1.
Scabies Treatment
Plaintiff claims that he received improper medical care for his scabies at the Blount County
Jail. However, “[a] mere difference of opinion between the plaintiff and his doctor regarding
diagnosis and treatment does not state a claim under the Eighth Amendment.” Koos v. Corr. Corp.
of Am., 63 F. App’x 796, 797 (6th Cir. 2003) (citing Estelle, 429 U.S. at 107; Westlake, 537 F.2d
at 860 n.5). Plaintiff’s allegations relating to his scabies treatment amount to a “difference of
opinion” between Plaintiff and the medical staff regarding his treatment. See id. Additionally,
complaints of malpractice or allegations of negligence are insufficient to entitle Plaintiff to relief
under § 1983. Estelle, 429 U.S. at 105–06. While Plaintiff may prefer to receive certain
medications, the Eighth Amendment does not entitle an inmate “to demand specific care.” Forbes
v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997), cited with approval in Smith v. Schofield, No. 3:15CV-574-PLR-HBG, 2016 WL 393540, at *4 (E.D. Tenn. Feb. 1, 2016).
As long as Plaintiff was actually afforded treatment which complied with constitutional
guidelines, he has no right to demand a particular medication. Estelle, 429 U.S. at 106–07; see
also Hampton v. Daviess Cty. Det. Ctr., No. 4:12CV–P125–M, 2012 WL 5921163, at *2 (W.D.
Ky. Nov. 26, 2012) (holding although scabies is a sufficiently serious medical condition, “[c]ourts
will generally refrain from ‘second guessing’ the adequacy of a particular treatment”) (citing
Westlake, 537 F.2d at 860 n.5). Plaintiff states that he was seen by a doctor, received several
rounds of steroid treatment, was given lotion to control his itching, and ultimately received
prescription medication to treat his scabies. Further, Plaintiff fails to allege that any named
Defendant acted with “deliberate indifference” to a substantial risk that he would suffer serious
harm. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). Therefore, Plaintiff’s allegations
regarding his scabies treatment fail to state a claim for relief under § 1983.
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2.
Hypoglycemia and Medical Restrictions
Plaintiff also claims that medical staff at the Blount County Jail refused to provide him
with sandwiches to treat his low blood sugar, as well as asserting that he was not placed in a bottom
bunk despite his medical restrictions [Doc. 2 p. 6]. However, Plaintiff has not sufficiently alleged
that he informed a named Defendant of this medical condition, or that he sought medical care from
any Defendant. To satisfy the subjective component of a deliberate indifference claim, a prisoner
must plead that a defendant knew that the inmate faced a “substantial risk of serious harm and
[then] disregard[ed] that risk by failing to take reasonable measures to abate it.” Farmer, 511 U.S.
at 847. Therefore, even if the Court deems Plaintiff’s medical conditions to be the type of serious
medical need which would satisfy the objective component of an Eighth Amendment claim, there
are no contentions which permit the Court to infer a state of mind of deliberate indifference on the
part of any Defendant. Without factual contentions to support “the reasonable inference that the
defendant is liable for the misconduct alleged,” Plaintiff fails to state a plausible Eighth
Amendment claim. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Therefore, Plaintiff’s allegations
relating to his hypoglycemia and placement in a top bunk fail to state a claim for relief under §
1983.
3.
Medical Costs
Plaintiff also claims that he was charged twice for his asthma inhaler and medication at the
Blount County Jail [Doc. 2 p. 4–6]. Although Plaintiff has not alleged a denial of a specific
constitutional right, construing Plaintiff’s allegations liberally, the Court presumes that Plaintiff is
attempting to assert a deprivation of his due process rights.
Pursuant to the Due Process Clause of the Fourteenth Amendment, before depriving an
individual of a constitutionally protected liberty or property interest, the state must provide the
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individual notice and an opportunity to be heard. See Paterek v. Village of Armada, 801 F.3d 630,
649 (6th Cir. 2015). To prevail on his procedural due process claim, Plaintiff must satisfy three
elements: (1) the existence of a constitutionally protected property interest; (2) a deprivation of
that property interest; and (3) he was not afforded adequate procedural protection. Id.
“Prisoners have a protected, albeit limited, interest in their inmate trust account and cannot
be deprived of this interest without due process.” Thomas v. Hayes, No. 2:04–cv–284, 2006 WL
2708267, at *7 (E.D. Tenn. Sept. 19, 2006) (citing Hampton v. Hobbs, 106 F.3d 1281, 1287 (6th
Cir. 1997)). However, Plaintiff fails to establish a deprivation, as he had been informed of the
policies regarding charges for medical treatment, and “Plaintiff may contest any allegedly
erroneously assessment through the prison grievance process.” Johnson v. Ozmint, 567 F. Supp.
2d 806, 822 (D. S.C. June 20, 2008); see, e.g., Mathews v. Eldridge, 424 U.S. 319, 335
(1976); Elliott v. Simmons, 100 F. App’x 777, 779 (10th Cir. 2004) (holding prison grievance
procedures sufficient to satisfy procedural due process for erroneous assessments on inmate
account); Asberry v. Correct Care Solutions, No. 3:10-cv-0910, 2010 WL 4067354, at *2 (M.D.
Tenn. Oct. 18, 2010).
In the present case, Plaintiff filed a grievance related to the alleged overcharging of his
account, to which prison authorities responded that Plaintiff incorrectly took all medication on his
first dose, and that Plaintiff needed another inhaler [Doc. 2 p. 16]. Plaintiff also states that he
believes he was overcharged because he never requested the medication [Id. at 7]. Further, “[i]t is
constitutional to charge inmates a small fee for health care where indigent inmates are guaranteed
service regardless of ability to pay.” White v. Corr. Med. Servs., 94 F. App’x 262, 264 (6th Cir.
2004) (citing Reynolds v. Wagner, 128 F.3d 166, 173–74 (3d Cir. 1997)). Therefore, Plaintiff’s
potential due process claim fails to state a claim for relief under § 1983.
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Plaintiff’s allegations also fail to state a claim for relief under § 1983 if the Court interprets
his claim under the Eighth Amendment. “While the Eighth Amendment’s prohibition against cruel
and unusual punishment requires jails to provide basic medical care to inmates, there is no
requirement that jails provide the medical care free of cost.” Miller v. Blackwelder, No. 4:07-cv9, 2008 WL 2940534, at *6 (E.D. Tenn. July 24, 2008); see, e.g., White, 94 F. App’x at 264.
Therefore, “[i]t is only when medical care is denied to inmates because of their inability to pay
that deliberate indifference is implicated, and such is not the case before this Court.” Miller, 2008
WL 2940534, at *6. Accordingly, Plaintiff’s claims relating to the alleged overcharging for
medication fail to state a claim for relief under § 1983.
E.
Equal Protection Claim
Plaintiff additionally claims that Defendants discriminated against him by refusing to
provide him with prescription treatment for his scabies because he was a “county” inmate, while
providing a federal inmate with immediate treatment [Doc. 2 at 6].
The Equal Protection clause details that no state shall “deny to any person within its
jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, §1. Specifically, it
prohibits discrimination by the government which either: 1) burdens a fundamental right; 2) targets
a suspect class; or 3) “intentionally treats one differently than others similarly situated without any
rational basis for the difference.” TriHealth, Inc. v. Bd. of Comm’rs, 430 F.3d 783, 788 (6th Cir.
2005). “[P]risoners are not considered a suspect class for purposes of equal protection litigation.”
Jackson v. Jamrog, 411 F.3d 615, 619 (6th Cir. 2005).
Therefore, as Plaintiff has not alleged
discrimination based upon membership in an identifiable group, his equal protection claim is
addressed under a “class of one” analysis. Davis v. Prison Health Serv., 679 F.3d 433, 441 (6th
Cir. 2012).
To prove such a claim, Plaintiff must demonstrate “intentional and arbitrary
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discrimination” by the state; that is, he must demonstrate that he “has been intentionally treated
differently from others similarly situated and that there is no rational basis for the difference in
treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Under a class of one equal
protection claim, Plaintiff must include in his complaint facts that demonstrate disparate treatment
of similarly situated individuals. Olech, 528 U.S. at 564. Further, he must show that he was
similarly situated to those treated differently in “all material respects.” TriHealth, Inc., 430 F.3d
at 790.
A plaintiff must first prove, as a “threshold” matter, that the defendant treated them
differently from similarly situated individuals. Taylor Acquisitions, L.L.C., v. City of Taylor, 313
F. App’x 826, 836 (citing Braun v. Ann Arbor Charter TWP., 519 F.3d 564, 575 (6th Cir. 2008)).
He must then show that the adverse treatment he experienced was “so unrelated to the achievement
of any combination of legitimate purposes that the court can only conclude that the government’s
actions were irrational.” Warren v. City of Athens, 411 F.3d 697, 710–11 (6th Cir. 2005) (quoting
Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 84 (2000)). This showing is made either by negating
every conceivable reason for the government’s actions or by demonstrating that the actions were
motivated by animus or ill-will. Id. at 711; see also Clark v. Johnston, 413 F. App’x 804, 817–18
(6th Cir. 2011) (holding a prisoner had not adequately pleaded an “equal-protection violation under
a ‘class of one’ theory” based on the general allegation that certain prison policies were
“selectively” enforced against him).
However, even if Plaintiff satisfied the threshold inquiry for identifying similarly situated
individuals, he must still demonstrate that the difference in treatment was not rationally related to
a legitimate government purpose. See Warren v. City of Athens, 411 F.3d 697, 710–11 (6th Cir.
2005). Plaintiff has failed to satisfy his burden of demonstrating that the government lacks a
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rational basis by negating “every conceivable basis which might support the government action or
by demonstrating that the challenged government action was motivated by animus or ill-will.” Id.
(internal citations omitted). A mere difference in treatment does not violate the equal protection
clause. See Newell v. Brown, 981 F.2d 880, 887 (6th Cir. 1992) (finding that a “plaintiff could not
make out a violation of his equal protection rights simply by showing that other inmates were
treated differently”). Therefore, Plaintiff’s assertions that a federal inmate was provided with
medical treatment, which he was denied, fail to state an equal protection claim. See Williams v.
Jabe, Nos. 94-1169, 94-2171, 1995 WL 236688, at *2 (6th Cir. Apr. 21, 1995) (holding that a
prisoner’s conclusory assertions are insufficient to state a claim for an equal protection violation);
see also Newberry v. Silverman, 789 F.3d 636, 640 (6th Cir. 2015) (observing that conclusory
allegations need not be accepted as true).
Plaintiff has failed to allege facts demonstrating that the challenged government action—
the difference in medical treatment—was motivated by animus or ill will. “[T]he hallmark of [a
‘class-of-one’] claim is not the allegation that one individual was singled out, but rather, the
allegation of arbitrary or malicious treatment not based on membership in a disfavored class.”
Davis v. Prison Health Servs., 679 F.3d 433, 441 (6th Cir. 2012) (citing Aldridge v. City of
Memphis, 404 F. App’x 29, 42 (6th Cir. 2010)). Plaintiff’s conclusory allegations that he was
provided different medical treatment from another inmate do not establish the irrationality or
arbitrariness of the decisions made by the Defendants. As animus is not demonstrated, Plaintiff
has failed to demonstrate that “there is no rational basis for the difference in treatment.” Vill. of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Therefore, Plaintiff’s equal protection claims
against the respective Defendants will be DISMISSED for a failure to state a claim upon which
relief may be granted under § 1983.
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F.
Retaliation Claims
Lastly, Plaintiff alleges that he was retaliated against after filing a grievance requesting to
be refunded his money for the unused medication [Doc. 2 p. 4]. He claims that “[i]n the process
of turning in grievance request forms, I was cussed twice, written up once, and punished with loss
of visits” [Id. at 7].
Prisoners retain their First Amendment rights “not incompatible with their status as
prisoners, ‘or with the legitimate penological objectives of the corrections system.’” Jones v.
Caruso, 569 F.3d 258, 267 (6th Cir. 2009) (citing Pell v. Procunier, 417 U.S. 817, 832 (1974)).
One of the rights retained by inmates is the First Amendment right to file grievances against prison
officials without retaliation for supposed misconduct. Smith v. Campbell, 250 F.3d 1032, 1037
(6th Cir. 2001). “[A]n act taken in retaliation for the exercise of a constitutionally protected right
is actionable under § 1983 even if the act, when taken for a different reason, would have been
proper.” Bloch v. Ribar, 156 F.3d 673, 681–82 (6th Cir. 1998) (citation omitted).
A prisoner states a retaliation claim if he pleads and proves that: (1) he engaged in protected
conduct, (2) an adverse action was taken against him which would deter a person of ordinary
firmness from continuing to engage in such conduct, and (3) the adverse action was motivated by
the protected conduct. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999). “Even the threat
of an adverse action can satisfy [the adverse action] element if the threat is capable of deterring a
person of ordinary firmness from engaging in the protected conduct.” Hill v. Lappin, 630 F.3d
468, 472 (6th Cir. 2010) (citing Pasley v. Conerly, 345 F. App’x 981, 985 (6th Cir. 2009)); see
also Reynolds–Bey v. Harris–Spicer, 428 F. App’x 493, 503 (6th Cir. 2011) (stating
that adverse actions include “threatening to impose disciplinary sanctions, issuing major
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misconduct reports that could result in loss of disciplinary credits, and threatening the use of
physical force”).
First, Plaintiff was engaged in protected conduct by filing a grievance. See Smith v.
Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001). Additionally, “[s]ubjecting a prisoner to a
disciplinary charge that could affect his place of confinement and other conditions of his
confinement, e.g., loss of visitation, may be such action that would ‘deter a person of ordinary
firmness from continuing to engage in that conduct.’” Sanford v. Schofield, No. 1:13–0023, 2013
WL 1344855, at *5 (M.D. Tenn. Apr. 2, 2013) (citing Thomas v. Eby, 481 F.3d 434, 440 (6th Cir.
2007)).
However, Plaintiff must be able to prove that the exercise of the protected right was a
substantial or motivating factor in the defendant’s alleged retaliatory conduct. See Smith v.
Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001) (citing Mount Healthy City Sch. Dist. Bd. of Educ.
v. Doyle, 429 U.S. 274, 287 (1977)). It is well recognized that “retaliation” is easy to allege and
that it can seldom be demonstrated by direct evidence. See Harbin-Bey v. Rutter, 420 F.3d 571,
580 (6th Cir. 2005). “[C]onclusory allegations of retaliatory motive ‘unsupported by material facts
will not be sufficient to state . . . a claim under § 1983.’” Harbin-Bey, 420 F.3d at 580 (quoting
Gutierrez v. Lynch, 826 F.2d 1534, 1538–39 (6th Cir. 1987)); see also Skinner v. Bolden, 89 F.
App’x 579, 579–80 (6th Cir. 2004) (holding without more, conclusory allegations of temporal
proximity are not sufficient to show a retaliatory motive).
Plaintiff does not allege that any named Defendant took or threatened adverse action
against him because he engaged in conduct that is protected by the First Amendment. A
defendant’s personal involvement in the deprivation of constitutional rights is required to establish
their liability under § 1983. Polk Cty v. Dodson, 454 U.S. 312, 325 (1981); Miller v. Calhoun
16
Cty., 408 F.3d 803, 817 n.5 (6th Cir. 2005). Although Plaintiff claims that Defendant Householder
cursed at him, he does not allege that Defendant Householder was motivated by his filing of
constitutionally protected grievances.
See Cline v. Rogers, 87 F.3d 176, 184 (6th Cir.
1996) (instructing courts not to suppose a plaintiff would be able to show facts not alleged or that
a defendant has violated the law in ways not alleged). Generous construction of pro se complaints
is not limitless; indeed, a court need not assume or conjure up claims that a pro se litigant has not
pleaded. Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004). Additionally, in his complaint,
Plaintiff states that he “lost visits for 30 days on a minor infraction” [Doc. 2 p. 7]. Therefore,
Plaintiff’s retaliation allegations fail to state a claim upon which relief may be granted under §
1983.
To the extent that Plaintiff alleges that Defendants and medical staff at the Blount County
Jail cursed at him, Plaintiff’s allegations fail to state a claim under the Eighth Amendment. The
Eighth Amendment protects prisoners against the imposition of “cruel and unusual punishments.”
U.S. Const. amend. VIII. However, Plaintiff does not state an actionable claim against Defendant
Householder, or any other Defendant, based on their use of derogatory language. Ivey v. Wilson,
832 F.2d 950, 955 (6th Cir. 1987) (noting that allegations of verbal harassment and verbal abuse
by prison officials toward an inmate do not constitute punishment within the meaning of the Eighth
Amendment). Additionally, Plaintiff has not alleged a physical injury in connection with an Eighth
Amendment violation and, absent such a contention, he cannot recover monetary damages for the
pain and suffering he claims to have suffered. See 42 U.S.C. § 1997e(e) (requiring that a prisoner
show prior physical injury to advance claim for mental or emotional damages).
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IV.
CONCLUSION
Based on the above, Plaintiff’s application to proceed in forma pauperis [Doc. 1] will be
GRANTED. However, because Plaintiff is no longer incarcerated, he will not be assessed the
filing fee at this time.
Although this Court is mindful that a pro se complaint is to be liberally construed, Haines
v Kerner, 404 U.S. 519, 510–21 (1972), it is quite clear that Plaintiff has not alleged the deprivation
of any constitutionally protected right, privilege, or immunity, and therefore, the Court finds his
claims to be frivolous under 28 U.S.C. §§ 1915(e) and 1915A. Plaintiff’s request to proceed in
forma pauperis [Doc. 1] will be GRANTED. His complaint and the present action will be
DISMISSED sua sponte for failure to state a viable claim under 42 U.S.C. § 1983.
Finally, 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.
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UNITED STATES DISTRICT
A S S RC
UNITED STATES DISTRICT JUDGE
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