Parker v. Graves et al

Filing 6

MEMORANDUM AND ORDER. Plaintiff's in forma pauperis application is GRANTED and ASSESSED the full filing fee of $350.00. Signed by District Judge Harry S Mattice, Jr on 5/4/15. (KFB, ) Modified on 5/5/2015 (KFB, ). This Memorandum and Order serviced via US Mail to Dexter Parker.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
at WINCHESTER

DEXTER PARKER, # 285121,
Plaintiff,
v.
STEVE GRAVES and PAM FREEMAN,
Defendants.

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No.: 4:14-cv-28-HSM-SKL

MEMORANDUM AND ORDER

The Court is in receipt of a pro se prisoner's civil rights complaint under 42
U.S.C. § 1983 and an application to proceed in forma pauperis. Plaintiff’s in forma
pauperis application is GRANTED, 28 U.S.C. § 1915, and he is allowed to proceed in
this case without prepayment of the filing fee (Doc. 1). Nevertheless, as a prisoner, the
Prison Litigation Reform Act of 1995 (PLRA), makes plaintiff ultimately responsible for
paying the filing fee, 28 U.S.C. § 1915(b)(1), and he, therefore, is ASSESSED the full
filing fee of $350.
I.

Fee Collection Procedures

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 is directed to submit to the Clerk,
U.S. District Court, 900 Georgia Avenue, Room 309, Chattanooga, Tennessee 37402,
as an initial partial payment, whichever is 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 plaintiff's trust account for the
preceding month), but only when such monthly income exceeds ten dollars ($10.00),
until the full filing fee of three hundred fifty dollars ($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 is DIRECTED to send a copy of this Memorandum and Order to the
Warden of the South Central Correctional Facility, in Clifton, Tennessee, wherein
plaintiff is currently confined, and to Derrick D. Schofield, the Commissioner of the
Tennessee Department of Correction, to ensure that the custodian of plaintiff's inmate
trust account complies with that portion of the PLRA relating to payment of the filing fee.
The Clerk is further DIRECTED to forward a copy of this Memorandum and Order to the
Court's financial deputy.
II.

Screening

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, e.g., 28 U.S.C. §§ 1915(e)(2)(B) and 1915(A);

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.
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Id. at 1015-16 (6th Cir. 1999) (citing 28 U.S.C. §§ 1915(e)(2) and 1915A). In performing
this task, however, the Court recognizes that pro se pleadings filed in civil rights cases
are construed indulgently and held to a less stringent standard than formal pleadings
drafted by lawyers.

McNeil v. United States, 508 U.S. 106, 113 (1993); Pilgrim v.

Littlefield, 92 F.3d 413, 416 (6th Cir. 1996).
Even so, the complaint must be sufficient "to state a claim to relief that is
plausible on its face," Bell Atl. 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 standard
articulated by the Supreme Court in Iqbal and Twombly “governs dismissals for failure
state a claim under [28 U.S.C. §§ 1915(e)(2) 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 screening 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.’”
Id. (quoting Iqbal, 556 U.S. at 678, in turn quoting Twombly, 550 U.S. at 570). The
Court examines the complaint in light of these standards.
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); O’Brien v. City of Grand
Rapids, 23 F.3d 990, 995 (6th Cir. 1994); Russo v. City of Cincinnati, 953 F.2d 1036,

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1042 (6th Cir. 1992); 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”).
III.

Discussion

Plaintiff, who as noted is currently confined in a state prison, brings this action for
damages for alleged violations of his rights while he was confined in the Coffee County
jail at some unspecified period in the past (Doc. 2). Plaintiff has sued Steve Graves, the
Coffee County Sheriff, and Pam Freemen, the Coffee County Jail Administrator.
A. Plaintiff’s Contentions
As grounds for relief, plaintiff offers five main claims, each of which contains numerous
sub-claims.
1. Forced Exposure to Black Mold
In the first claim, plaintiff maintains that black mold is prevalent in ventilation
ducts, behind the showers, and on the walls of the Coffee County jail and that inmates
are exposed to this condition. Plaintiff further maintains that, as a result of his exposure
to black mold, he suffers from headaches, sinus problems and breathing difficulties, for
which he signed up on sick call, to no avail.
developed an upper respiratory infection.

Plaintiff contends that he also has

Plaintiff asserts that, with respect to this

housing condition, defendants “are directly responsible for the up keep of the Coffee
County Jail[,] including protecting plaintiff[’s] health and well being” (Doc. 2, Compl. at
5).
2.

Forced Exposure to MRSA

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In the next claim, plaintiff contends that methicillin-resistant Staphylococcus
aureus (MRSA) is widespread at the Coffee County jail and that three inmates, namely
Joey Perryman, Rodd Dalton, and Joe Wilson, have been hospitalized as a direct result
of this infectious disease.

Again, plaintiff claims that defendants “are directly

responsible for the prevention of such communicable disease, but ha[ve] failed to set
forth any preventative or corrective measures [to] guard[] against such disease” (Id. at
6).
3.

Exposure to Bacteria in Food

The allegations in the third claim are that defendants have failed to enact
guidelines requiring kitchen personnel to cover the food trays, which are delivered to
plaintiff’s cell three times daily. Uncovered food is delivered to other inmates as well.
Also, food usually is cold by the time it is delivered to inmates, some 45 minutes to an
hour after the food leaves the kitchen, because the electrical apparatus to keep it warm
is not plugged in. Thus, handling the food in this manner creates an environment in
which microorganisms, such as salmonella, MRSA, and other common air-borne
communicable bacteria, could develop. Plaintiff maintains that it is a pattern engaged in
by defendants to endanger his health and well being in violation of his “right to be
reasonably protected from communicable disease by the defendants while under their
control, care, and supervision” (Id. at 8).
4.

Lack of Outdoor Exercise

In the fourth claim, plaintiff contends that neither he nor other inmates in the
Coffee County jail have access to regular outdoor exercise. Indeed, plaintiff alleges that

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he is confined to his cell 24 hours a day, 7 days a week. Plaintiff maintains that it is
common practice for defendants to deny inmates access to regular outdoor exercise.
5.

Lack of Access to a Law Library

In the last claim pled in the complaint, plaintiff asserts that defendants installed a
quasi-type satellite law library for inmates in the Coffee County jail, but stocked it with
outdated law books and failed to include books containing federal court decisions or
other types of books to use for legal research. According to plaintiff, the provision of an
inadequate law library denies him access to research issues in his pending criminal
case. Defendants are faulted for failing to provide a properly functioning law library,
though funds were appropriated for this purpose (Id. at 10).
B. Law and Analysis
The allegations against defendants in the complaint demonstrate that plaintiff is
seeking to impose supervisory liability on defendants, but § 1983 liability cannot be
predicated on that theory. Iqbal, 556 U.S. at 676 (“[O]ur precedents establish . . . that
Government officials may not be held liable for the unconstitutional conduct of their
subordinates under a theory of respondeat superior.”); Taylor v. Michigan Dep't of Corr.,
69 F.3d 76, 80 81 (6th Cir. 1995). Since vicarious liability does not apply, “a plaintiff
must plead that each Government-official defendant, through the official's own individual
actions, has violated the Constitution.” Iqbal, 556 U.S. at 676; Kentucky v. Graham, 473
U.S. 159, 166 (1985) (observing that personal liability is established by showing that an
individual official “act[ed to] cause[] the deprivation of a constitutional right”).
Also, the law is settled that a supervisor cannot be held liable for a mere failure to
act. Greene v. Barber, 310 F.3d 889, 899 (6th Cir. 2002). Absent some showing that

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defendants

authorized,

approved,

or

knowingly

acquiesced

in

any

alleged

unconstitutional conduct of their employees, plaintiff has failed to state a § 1983 claim
against them.

Walton v. City of Southfield, 995 F.2d 1331, 1340 (6th Cir. 1993);

Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984). Here, plaintiff has not shown
that defendants committed any actual acts or otherwise approved or acquiesced in
subjecting him to unconstitutional conditions or treatment at the Coffee County jail.
But, even if plaintiff had pled a workable theory of liability for defendants, his
allegations are flawed. The first flaw is that plaintiff has not alleged the dates that he
was subjected to these conditions or treatment. This omission not only renders his
claims conclusory, but subjects these claims to a possible time-bar defense.
Conclusory allegations do not state a claim for relief under § 1983. See Harden-Bey v.
Rutter, 524 F.3d 789, 796 (6th Cir. 2008) (“[I]n the context of a civil rights claim, . . .
conclusory allegations of unconstitutional conduct without specific factual allegations fail
to state a claim.”); 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). Civil rights claims arising in Tennessee are
subject to a one-year statute of limitation, see Berndt v. Tennessee, 796 F.2d 879, 883
(6th Cir. 1986); and claims which are time-barred likewise fail to state a claim for relief.
See Jones v. Bock, 549 U.S. 199, 215 (2007) (noting that “[i]f the allegations, for
example, show that relief is barred by the applicable statute of limitations, the complaint
is subject to dismissal for failure to state a claim . . . ”).
The second problem is that plaintiff has not tied defendants to any of the claimed
unlawful conditions, bearing in mind that his contention that they are “directly

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responsible” for the conditions constitutes an attempt to impose liability based on a
theory of respondeat superior.
Another difficulty with the complaint is that plaintiff’s speculation that exposure to
certain of the claimed conditions might cause him injury does not present a case or
controversy over which the Court has jurisdiction. Whitmore v. Arkansas, 495 U.S.
149,158 (1990) (“Allegations of possible future injury do not satisfy the requirements of
Art. III [standing].”). An additional deficiency is that, insofar as plaintiff bases his claims
upon the impingement of the rights of other inmates, he lacks standing to present those
claims. An inmate must assert his own rights, not those of other inmates. Id. at 161
(“We hold that Whitmore does not have standing . . . to press an Eighth Amendment
objection to [another inmate’s] conviction and sentence”.).
Furthermore, plaintiff’s claim that defendants have furnished an inadequate law
library fails to state a claim for denial of access to the courts in the first place because
there is no freestanding right to a law library, Lewis v. Casey, 518 U.S. 343, 351
(1996), and because he does not allege any specific prejudice. True, plaintiff asserts
that he could not research his pending criminal case but, to state a claim for lack of
access to the courts, a plaintiff “must plead and prove prejudice stemming from the
asserted violation.

Plaintiff[] must demonstrate, for example, that the [alleged

infringement of his right] caused such actual injury as the late filing of a court document
or the dismissal of an otherwise meritorious claim.” Pilgrim v. Littlefield, 92 F.3d 413,
416 (6th Cir. 1996) (citing Lewis). This plaintiff has failed to do.
Furthermore, “a prisoner's constitutionally-guaranteed right of access to the
courts has been protected when a state provides that prisoner with either the legal tools

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necessary to defend himself, e.g., a state-provided law library, or the assistance of
legally-trained personnel.” Holt v. Pitts, 702 F.2d 639, 640 (6th Cir. 1983). If the state
furnished plaintiff with an attorney to defend him in his criminal case, which it almost
certainly did, see Tenn. R.Crim. P. 44(a), then it fulfilled its constitutional obligation and
plaintiff has nothing about which to make a First Amendment complaint.
IV.

Conclusion

Based on the above discussion, plaintiff’s contentions fail to state § 1983 claims
against defendants. Therefore, this case will be dismissed sua sponte in its entirely,
under 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A.
A separate order shall enter.

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

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