Ferrick v. Winchester Police Department, et al

Filing 6

MEMORANDUM: Accordingly, all claims against Inmate Hodges will be DISMISSED for failure to state a claim as Inmate Hodges is not a state actor for purposes of section 1983. Plaintiff's complaint will be DISMISSED sua sponte in its entirety for failure to state a claim for which relief may be granted. 28 U.C.S. sections 1915A and 19159(e) (Doc. 1). In addition, his motion to proceed in forma pauperis will be GRANTED IN PART AND DENIED IN PART (Doc.3). The Clerk of Court will be DIRECTED to send a copy of this Memorandum and Judgment to the Warden and Custodian of Records at Lexington Federal Medical Center and the Commissioner of the Bureau of Prisons to ensure the custodian of Plaintiff's inmate trust account complies with the portion of the Prison Litigation Reform Act relating to payment of the filing fee. An appropriate order will enter. Signed by District Judge Harry S Mattice, Jr on 7/29/2015. (DJH, ) Modified on 7/29/2015 (DJH, ).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
at WINCHESTER
SHAWN PATRICK FERRICK,
Plaintiff,
v.
WINCHESTER POLICE DEPARTMENT,
FRANKLIN COUNTY SHERIFF,
JAMES D. HODGES,
Defendants.

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No. 4:12-CV-29
Mattice/Carter

MEMORANDUM
Shawn Patrick Ferrick (APlaintiff@), a pro se prisoner, has filed a civil rights
complaint pursuant to 42 U.S.C. ' 1983 (Doc. 1) and a motion to proceed in forma
pauperis (Doc. 3). Plaintiff brings suit against the Winchester Police Department, the
Franklin County Sheriff, and a fellow inmate, James D. Hodges (“Inmate Hodges”).
Although his complaint is difficult to decipher, the Court discerns that Plaintiff claims
Inmate Hodges assaulted him after Detective Lane allegedly told Inmate Hodges about
Plaintiff’s charges and told the inmate to “smack” Plaintiff.
For the reasons discussed below, Plaintiff=s complaint will be DISMISSED (Doc.
1) and the motion to proceed in forma pauperis will be GRANTED IN PART and
DENIED IN PART (Court File No. 3).
I.

Application to Proceed In Forma Pauperis
It appears from the application to proceed in forma pauperis submitted by Plaintiff

that he lacks sufficient financial resources at the present time to pay the required filing
fee of $350.00.

Plaintiff is not relieved of the ultimate responsibility of paying the
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$350.00 filing fee.

Since Plaintiff is an inmate or prisoner in custody at Lexington

Federal Medical Center, his in forma pauperis application will be GRANTED to the extent
that he does not have to pay the total fee at this time but DENIED to the extent he will not
be excused from paying the filing fee (Doc. 3).

Rather, he will be ASSESSED and

SHALL pay the civil filing fee of three-hundred and fifty dollars ($350.00) under the
Prisoner Litigation Reform Act (“PLRA”), Pub. L. 104-134, 110 Stat. 1321, codified in 28
U.S.C. ' 1915.
Pursuant to 28 U.S.C. ' 1915(b)(1)(A) and (B), the custodian of Plaintiff’s inmate
trust account at the institution where he now resides shall submit to the Clerk, United
States District Court, 900 Georgia Avenue, Chattanooga, TN 37402, as an initial partial
payment, whichever is the greater of
(a)

twenty percent (20%) of the average monthly deposits to Plaintiff=s
inmate trust account; or

(b)

twenty percent (20%) of the average monthly balance in Plaintiff=s
inmate trust account for the six-month period preceding the filing of
the complaint.

Thereafter, the custodian shall submit twenty percent (20%) of Plaintiff=s
preceding monthly income (or income credited to his trust account for the preceding
month), but only when such monthly income exceeds $10.00, until the full filing fee of
$350.00, as authorized under 28 U.S.C. ' 1914(a), has been paid to the Clerk. 28
U.S.C. ' 1915(b)(2).
The Clerk of Court will be DIRECTED to send a copy of this Memorandum and
Judgment to the Warden and Custodian of Records at Lexington Federal Medical Center
and the Commissioner of the Bureau of Prisons to ensure the custodian of Plaintiff’s
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inmate trust account complies with the portion of the Prison Litigation Reform Act relating
to payment of the filing fee.
The agency having custody of Plaintiff SHALL collect the filing fee as funds
become available. This order shall become a part of Plaintiff=s file and follow him if he is
transferred to another institution.

The agency having custody of Plaintiff SHALL

continue to collect monthly payments from Plaintiff=s prisoner account until the entire
filing fee of $350.00 is paid. In addition, Plaintiff will also be ORDERED to provide the
prison officials at any new institution with a copy of this order.
II.

Standard of Review
Pro se pleadings filed in civil rights cases are liberally construed and held to a less

stringent standard than formal pleadings drafted by lawyers.

McNeil v. United States,

508 U.S. 106, 113 (1993); Boag v. MacDougall, 454 U.S. 364, 365 (1982); Pilgrim v.
Littlefield, 92 F.3d 413, 416 (6th Cir. 1996); Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir.
1991).

However, pro se status does not exempt plaintiffs from the requirement that

they must comply with relevant rules of procedural and substantive law.

Hulsey v. State

of Texas, 929 F.2d 168, 171 (5th Cir. 1991); Birl v. Estelle, 660 F.2d 592, 593 (5th Cir.
1981). Pro se plaintiffs must comply with Rule 8 of the Federal Rules of Civil Procedure
which provides that a complaint must contain Aa short and plain statement of the claim
showing that the pleader is entitled to relief. . . .@ LRL Properties v. Portage Metro
Housing Authority, 55 F.3d 1097, 1104 (6th Cir. 1995). Although the standard of review
is liberal, it does require more than the bare assertion of legal conclusions.

Lillard v.

Shelby County Bd. Of Educ., 76 F.3d 716, 726 (6th Cir. 1996) (standard of review for
dismissing a complaint pursuant to Fed. R. Civ. P. 12(b)(6)-failure to state a claim upon
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which relief may be granted); LRL Properties, 55 F.3d at 1103-04; Allard v. Weitzman (In
re DeLorean Motor Co.), 991 F.2d 1236, 1240 (6th Cir. 1993); Hartfield v. East Grand
Rapids Public Schools, 960 F. Supp. 1259, 1268 (W.D. Mich. 1997).

The complaint

must give the defendants fair notice of what the plaintiff=s claim is and the grounds upon
which it rests.

Lillard, 76 F.3d at 726; Gazette v. City of Pontiac, 41 F.3d 1061, 1064

(6th Cir. 1994). “In practice, ‘a . . . complaint must contain either direct or inferential
allegations respecting all the material elements to sustain a recovery under some viable
legal theory.’”

Lillard, 76 F.3d at 726 (citations omitted).

Thus, although the court holds pro se pleadings to a less stringent standard than
formal pleadings drafted by lawyers, the district court is under no duty to conjure up
unpled allegations. Indeed, “even in the case of pro se litigants ... leniency does not
give a court license to serve as de facto counsel for a party, ... or to rewrite an otherwise
deficient pleading in order to sustain an action.” GJR Investments, Inc. v. County of
Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998), overruled on other grounds recognized
by Randall v. Scott, 610 F.3d 701, 706 (11th Cir. 2010).
In addition, the Court screens the complaint pursuant to 28 U.S.C. '§ 1915A and
1915(e).

Furthermore, 28 U.S.C. ' 1915(e)(2) provides that the Court must dismiss a

case at any time if the Court determines that it is frivolous or fails to state a claim upon
which relief can be granted.

McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir.

1997), abrogated on other grounds by Jones v. Bock, 549 U.S. 199, 205 (2007).
III.

Facts
On August 29, 2011, Inmate Hodges asked Plaintiff about his charges, and after

Plaintiff explained his charges, Hodges said he was told they were something different
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by the Winchester Police Department, and then hit him in the head a few times.

On

September 6, 2011, Inmate Hodges came into Plaintiff’s cell and told him some “exact
specifics about pictures found on [Plaintiff’s] computer” and stated Investigator Chris
Lane had showed him the pictures and told the inmate to “smack [Plaintiff] up some.” A
few days later the inmate came into Plaintiff’s cell again, asked him about his charges,
and hit and kicked him (Doc. 1).
Plaintiff notified jail staff on September 11, 2011, about the assaults and they told
him to remain in the day room in full view of the cameras.

Inmate Hodges again

assaulted Plaintiff, at which time officers removed the inmate and subsequently charged
him with assault on Plaintiff.
involvement.

Plaintiff notified the investigator of Chris Lane’s

Plaintiff seeks compensation for pain and suffering, criminal charges

against Chris Lane, and charges against the Sheriff’s Department for inadequate
investigation.
IV.

Analysis

A.

42 U.S.C. ' 1983

To state a viable claim under 42 U.S.C. ' 1983, a plaintiff must allege: (1) he was
deprived of a right, privilege, or immunity secured by the Constitution or laws of the
United States; and (2) the deprivation was caused by a person while acting under color
of state law.

Flagg Bros. Inc. v. Brooks, 436 U.S. 149, 155-156 (1978); Brock v.

McWherter, 94 F.3d 242, 244 (6th Cir. 1996).

To maintain a cause of action for

damages under 42 U.S.C. ' 1983, a plaintiff must also allege the defendant caused the
plaintiff an injury and show actual damages. See Carey v. Piphus, 435 U.S. 247, 255
(1978); Chatman v. Slagle, 107 F.3d 380, 384 (6th Cir. 1997); Zehner v. Trigg, 952
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F.Supp. 1318, 1321 (S.D. Ind.), aff=d 133 F.3d 459 (7th Cir. 1997).
Although the Federal Rules of Civil Procedure do not require a plaintiff to set out
in detail the facts underlying the claim, the plaintiff must provide sufficient allegations to
give defendants fair notice of the claims against them.

Leatherman v. Tarrant County

Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993). Thus, to state a
§ 1983 claim, a plaintiff must allege sufficient facts that, if true, would establish he
incurred an injury when the defendants deprived him of a right secured by the
Constitution of the United States while they acted under color of law. See Brock, 94
F.3d at 244.
B.

Parties

Plaintiff has named the Winchester Police Department, Franklin County Sheriff,
and Inmate Hodges as Defendants in this case. For the reasons stated below, the
complaint will be dismissed for failing to name a proper party.
1.

Winchester Police Department

The plaintiff has named the Winchester Police Department as a defendant.

The

Winchester Police Department is not a legal entity amenable to being sued under 42
U.S.C. § 1983.

The Winchester Police Department is not a municipality but is merely a

municipal agency or department of the City of Winchester rather than a separate legal
entity. See Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir.1994)(police departments
are not legal entities which may be sued); Obert v. The Pyramid, 381 F.Supp.2d 723,
729 (W.D.Tenn.2005) (police department is not a legally-existing entity); Williams v.
Baxter, 536 F.Supp. 13, 16 (E.D.Tenn.1981). Therefore, the Winchester Police
Department is not a suable entity for § 1983 purposes and all claims brought by Plaintiff
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against the Winchester Police Department pursuant to 42 U.S.C. § 1983 will be
DISMISSED.
Even if the Court construed Plaintiff’s complaint as suing the City of Winchester
(“City”) for the reasons explained below, Plaintiff would not be entitled to any relief. In
order to prevail against the City, Plaintiff must demonstrate that the alleged violation of
his constitutional rights resulted from acts representing official policy or custom adopted
by the City. Monell v. Dept. of Social Services of the City of New York, 436 U.S. 658,
690-91(1978); Leach v. Shelby County Sheriff, 891 F.2d 1241, 1245-46 (6th Cir.1989),
cert. denied, 495 U.S. 932 (1990).
In order to prevail in an action against a city, a plaintiff must show, first, that he
has suffered harm because of a constitutional violation and second, that a policy or
custom of the entity-in this case, the City of Winchester−caused the harm. See Collins v.
Harker Heights, Tex., 503 U.S. 115, 120 (1992).

Plaintiff must identify the policy,

connect the policy to the city itself, and show that the particular injury was incurred
because of the execution of that policy; all of which Plaintiff has failed to do. See Garner
v. Memphis Police Dept., 8 F.3d 358, 363-64 (6th Cir.1993), cert. denied, 510 U.S. 1177
(1994) (citation omitted). Plaintiff does not allege that the violation of his rights resulted
from any policy or custom on the part of the City of Winchester. Consequently, to the
extent Plaintiff attempted to sue the City of Winchester, the City is entitled to judgment as
a matter of law.

Accordingly, the City of Winchester will be DISMISSED from this

lawsuit for failure to state a claim upon which relief can be granted. 28 U.S.C. §§ 1915A
and 1915(e) (Doc. 1).

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2.

Franklin County Sheriff

Plaintiff has identified the next defendant in the style of his complaint as the
Franklin County Sheriff but in the body of his complaint he identifies the defendant as the
Franklin County Sheriff’s Department.

Yet, in his factual allegations, Plaintiff names

Chris Lane who is presumably a detective with the Franklin County Sheriff’s Department.
First, the Franklin County Sheriff’s Department is not a legal entity amenable to
being sued under 42 U.S.C. § 1983. The Franklin County Sheriff Department is not a
municipality but is merely a municipal agency or department of Franklin County rather
than a separate legal entity. See Monell v. Department of Social Services of New York,
436 U.S. 658 (1978) (for purposes of § 1983, a “person” includes individuals and “bodies
politic and corporate”); Bradford v. Gardner, 578 F.Supp. 382, 383 (E.D.Tenn. 1984)
(“the Sheriff’s department is not a suable entity under Section 1983”). Therefore, the
Franklin County Sheriff’s Department is not a suable entity for § 1983 purposes and all
claims brought by Plaintiff against the Franklin County Sheriff’s Department pursuant to
42 U.S.C. § 1983 will be DISMISSED.
To the extent Plaintiff is suing the Franklin County Sheriff (“Sheriff”), or even
assuming he properly identified Detective Chris Lane (“Detective Lane”) of the Franklin
County Sheriff’s Department as a defendant, both are entitled to judgment as a matter of
law for the reasons explained below.
Plaintiff has failed to identify in what capacity he has sued either the Sheriff or
Detective Lane. The complaint does not indicate whether these county employees are
being sued in their official capacity, individual capacity, or both.
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A suit brought against a public, government official will not be construed as
seeking damages against the defendant in his individual capacity unless such a claim for
individual liability is clearly and definitely set forth in the pleading. Pelfrey v. Chambers,
43 F.3d 1034, 1038 (6th Cir.), cert. denied, 515 U.S. 1116 (1995); Thiokol Corp. v.
Department of Treasury, State of Mich., Revenue Div., 987 F.2d 376, 383 (6th Cir.1993);
Lovelace v. O'Hara, 985 F.2d 847, 850 (6th Cir.1993); Hardin v. Straub, 954 F.2d 1193,
1199-1200 (6th Cir.1992); Wells v. Brown, 891 F.2d 591 (6th Cir.1989); Johnson v.
Turner, 855 F.Supp. 228, 231 (W.D.Tenn.1994), aff'd, 125 F.3d 324 (6th Cir.1997).
Generally, absent any express indication the defendant is being sued in his individual
capacity, the Court must assume he is being sued only in his official capacity as an
employee of the governmental entity. Whittington v. Milby, 928 F.2d 188, 193 (6th Cir.),
cert. denied, 502 U.S. 883 (1991); Wells, 891 F.2d at 593-94.
Although it is preferable that plaintiffs explicitly state whether a defendant is sued
in his or her individual capacity, the failure to do so is not fatal if the complaint or other
filed documents provide sufficient notice to the defendant that he is being sued as an
individual. In Moore v. City of Harriman, 272 F.3d 769 (6th Cir.2001), the caption on
Moore’s complaint listed the officers’ names, not their official titles; the complaint referred
to the officers throughout as the “individual defendants;” the complaint identified the
officers as “acting for themselves and for the City ...;” and Moore sought compensatory
and punitive damages against each of the defendants. The Sixth Circuit stated that taken
as a whole, the complaint likely provided sufficient notice to the officers that they were
being sued as individuals. Id. at 774.

However, the Sixth Circuit ruled that “Moore’s

response to the officers’ motion to dismiss clarified any remaining ambiguity: ‘The
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individuals named are police officers who are being sued in their individual capacities for
using excessive and unreasonable force while making an arrest of the Plaintiff on April 7,
1996.’ ” Moore v. City of Harriman, 272 F.3d at 773, 774.
The complaint before this Court is not analogous to the complaint in Moore. In the
case at bar, Plaintiff failed to specify in his complaint that he was suing either the Sheriff
or Detective Lane as an individual, rather than in their official capacity.

Indeed, the

Sheriff is identified as the “Franklin County Sherif [sic]” in the style of the case, and
Detective Lane is not identified in the style of the case. In the body of the complaint, the
Sheriff is not identified and Detective Lane is identified as a detective and as an
investigator (Doc. 2). Thus, absent any clear indication in the complaint that either the
Sheriff or Detective Lane is being sued in his individual capacity, the Court must assume,
to the extent either is being sued, he is being sued in his official capacity. Id. at 772.
A claim against a Franklin County Officer in his official capacity is treated as being
an action against the governmental entity. Hafer v. Melo, 502 U.S. 21, 25 (1991); Barber
v. City of Salem, Ohio, 953 F.2d 232, 237 (6th Cir.1992). Because both Defendants have
been sued only in their official capacity as employees of Franklin County (“the County”)
the Court must proceed as if Plaintiff has in fact sued the County. Therefore, in order to
prevail, Plaintiff must demonstrate that the alleged violation of his constitutional rights
resulted from acts representing official policy or custom adopted by the County. Monell v.
Dept. of Social Services of the City of New York, 436 U.S. 658, 690-91(1978); Leach v.
Shelby County Sheriff, 891 F.2d 1241, 1245-46 (6th Cir.1989), cert. denied, 495 U.S.
932 (1990).
In order to prevail in an action against a defendant in his official capacity, a
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plaintiff must show, first, that he has suffered harm because of a constitutional violation
and second, that a policy or custom of the entity-in this case, Franklin County-caused the
harm. See Collins v. Harker Heights, Tex., 503 U.S. 115, 120 (1992).

Plaintiff must

identify the policy, connect the policy to the county itself, and show that the particular
injury was incurred because of the execution of that policy; all of which Plaintiff has failed
to do. See Garner v. Memphis Police Dept., 8 F.3d 358, 363-64 (6th Cir.1993), cert.
denied, 510 U.S. 1177 (1994) (citation omitted).

Plaintiff does not allege that the

violation of his rights resulted from any policy or custom on the part of Franklin County.
Consequently, both the Franklin County Sheriff and Detective/Investigator are entitled to
judgment as a matter of law.
3.

Inmate Hodges

Plaintiff claims Inmate Hodges said Detective Lane told him to “smack [Plaintiff]
up some” and that the inmate assaulted him.

Once Plaintiff reported it to Jail Staff, they

instructed him to stay in the Day Room and when Inmate Hodges again assaulted him he
was removed and charged with assault.
This defendant has not been identified as a state actor.

Indeed, Plaintiff does

not contend Inmate Hodges was acting under color of state law or that he jointly engaged
with state officials in unconstitutional conduct.
detective told the inmate to smack Plaintiff.

Rather, he claims this inmate told him a
A defendant must be a state actor before

they are subject to liability under § 1983 which requires a plaintiff to allege he was
deprived of a right secured by the United States Constitution or laws of the United States
by a person acting under color of law. Therefore, § 1983 applies to acts of the states,
not to acts of private parties.
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However, if a private party’s action is fairly attributable to the state, then such
action will constitute state action for § 1983 purposes.
584 (6th Cir. 2003).

See Tahfs v.Proctor, 316 F.3d

In Tahfs the Sixth Circuit explained,

Private persons, jointly engaged with state officials in a prohibited
action, are acting under color of law for purposes of the statute. To act
under color of law does not require that the accused be an officer of the
State. It is enough that he is a willful participant in joint activity with the
State or its agents. Therefore, a private party can fairly be said to be a
state actor if (1) the deprivation complained of was caused by the exercise
of some right or privilege created by the State and (2) the offending party
acted together with or has obtained significant aid from state officials, or
because his conduct is otherwise chargeable to the State. . . .
Id. at 591 (internal punctuation and citations omitted).

The Sixth Circuit

explained the tests for determining whether conduct is fairly attributable to the
state as follows:
This circuit recognizes three tests for determining whether private
conduct is fairly attributable to the state: the public function test, the state
compulsion test, and the nexus test. The public function test requires that
the private entity exercise powers which are traditionally exclusively
reserved to the state. . . . The state compulsion test requires proof that the
state significantly encouraged or somehow coerced the private party, either
overtly or covertly, to take a particular action so that the choice is really that
of the state.
Finally, the nexus test requires a sufficiently close
relationship (i.e., through state regulation or contract) between the state
and the private actor so that the action taken may be attributed to the state.
Id. (citation omitted).
Here, Plaintiff’s bare allegation that Inmate Hodges said Detective Lane told him
to “smack [Plaintiff] up some,” is insufficient to attribute Inmate Hodges’ conduct to
Detective Lane or the government entity.

In this situation, it appears that the only test

that might be applicable is the state compulsion test.

Nevertheless, Plaintiff’s claim that

Detective Lane told Inmate Hodges to “smack” Plaintiff does not translate to “proof that

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the state significantly encouraged or somehow coerced the private party, either overtly or
covertly, to take a particular action” so that Inmate Hodges’ choice to hit Plaintiff was
really that of Detective Lane’s.

Plaintiff’s allegations are insufficient under any of the

tests to demonstrate Inmate Hodges acted as a state actor.

In sum, Plaintiff’s mere

allegations of Inmate Hodge’s hearsay statements that Detective Lane told him to
“smack” Plaintiff, do not support an inference that Inmate Hodge’s conspired with
Detective Lane to assault Plaintiff in violation of this constitutional right.
Accordingly, all claims against Inmate Hodges will be DISMISSED for failure to
state a claims as Inmate Hodges is not a state actor for purposes of § 1983.
V.

Conclusion
Plaintiff=s complaint will be DISMISSED sua sponte in its entirety for failure to

state a claim for which relief may be granted.

28 U.S.C. '' 1915A and 1915(e) (Doc. 1).

In addition, his motion to proceed in forma pauperis will be GRANTED IN PART and
DENIED IN PART (Doc. 3).
An appropriate order will enter.

/s/ Harry S. Mattice, Jr._______
HARRY S. MATTICE, JR.
UNITED STATES DISTRICT JUDGE

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