Whipple v. Millay et al
MEMORANDUM AND ORDER: Pending before the Court is Defendant Cazz Crowder's Motion to Dismiss. (Doc. No. 135.) Because the Court finds Whipple's claims against Crowder are MOOT, the Motion to Dismiss is GRANTED. On sua sponte review pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court also finds that Whipple's claims against defendants Kim Sims and Jeff Hughes are MOOT and must be DISMISSED for that reason. Finally, Whipple's claims against Defendant Crownover mu st be DISMISSED based upon the Suggestion of Death filed May 5, 2016. Signed by Chief Judge Waverly D. Crenshaw, Jr on 9/21/2017. (xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
ROBERT ZENAS WHIPPLE, III,
REBECCA MILLAY, et al.,
CHIEF JUDGE CRENSHAW
MEMORANDUM AND ORDER
Pending before the Court is Defendant Cazz Crowder’s Motion to Dismiss. (Doc. No. 135.)
Because the Court finds Whipple’s claims against Crowder are MOOT, the Motion to Dismiss is
GRANTED. On sua sponte review pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court also finds
that Whipple’s claims against defendants Kim Sims and Jeff Hughes are MOOT and must be
DISMISSED for that reason. Finally, Whipple’s claims against Defendant Crownover must be
DISMISSED based upon the Suggestion of Death filed May 5, 2016.
Statement of Facts
On September 3, 2014, Plaintiff Robert Zenas Whipple, III, proceeding pro se and in forma
pauperis, filed this civil rights action under 42 U.S.C. § 1983 against twenty-two defendants,
alleging violations of his First Amendment rights. (Doc. No. 1, PageID# 281, 294.) Whipple was
an inmate at Turney Center Industrial Complex during the times relevant to this action. (Doc. No.
1, PageID# 282.) He was transferred to Bledsoe County Correctional Complex in April 2015.
(Doc. No. 27.)
Whipple’s claims concern his access to Turney’s law library and alleged retaliation for his
filing of grievances and lawsuits. Specifically, Whipple alleges that: (1) Turney’s law library was
open fewer than its posted hours, in violation of Tennessee Department of Correction (TDOC)
policy, (id. at PageID# 296–98); (2) he faced long delays in being added to Turney’s “legal
deadline list,” which gives inmates with pending legal deadlines additional law-library access, (id.
at PageID# 298–301); (3) in retaliation for filing lawsuits and grievances, a false disciplinary
charge was filed against him and, on the basis of this disciplinary charge, he was dismissed from
Turney’s “Serving with Canines” program and moved to a “more dangerous” housing unit with
fewer privileges, (id. at PageID# 301–03); (4) Turney’s “master callout” system hindered access
to the courts by requiring prisoners to request law-library passes at least two days in advance, (id.
at PageID# 303–04); (5) Turney charged a fee to print legal documents in violation of TDOC
policy, (id. at PageID# 305–06); (6) a law-library computer shortage limited the time prisoners
were allotted to do legal work on computers, (id. at PageID# 307–08); (7) one of Whipple’s trust
fund withdrawal forms was altered to replace “printout” with “copy” in order to “cover up”
Turney’s policy of charging for printing, (id. at PageID# 308); (8) Whipple was prevented from
copying this altered form “to submit as an exhibit with a claim before the Tennessee Claims
Administration as well as to send to authorities as proof of criminal conduct,” (id. at PageID# 309–
10); (9) Whipple was “forced to sign false Trust Fund Withdrawal forms,” which stated that the
withdrawal was for copies rather than printing, (id. at PageID# 310); and (10) six hours after
arguing with Defendant Rebecca Millay, Turney’s “Correctional Principal,” about the trust fund
forms, Whipple was moved to Turney’s Unit 4, where he was exposed to tobacco smoke, his top
bunk was unsecured and subject to collapse, and a gang leader threatened him. (Id. at PageID#
Whipple sued Debra Johnson, then Turney’s Warden; David Gary and Kim Lake, sergeants
at Turney; and Millay in their individual and official capacities. (Doc. No. 1, PageID# 281). He
sued the remaining defendants, 1 including Crowder (Turney’s library supervisor), Sims
(supervisor of Serving With Canines), and Hughes (Turney’s fiscal director) in their official
capacities only. (Id.) The complaint requested declaratory and injunctive relief, as well as
compensatory damages from Millay and Johnson. (Id. at PageID# 281, 314.)
The Court granted Defendant Retrieving Independence’s motion to dismiss (Doc. No. 74),
finding that Whipple had failed to “allege plausible facts that Retrieving Independence, a private
party, acted in concert with the state official who terminated Plaintiff’s involvement with Serving
with Canines.” (Doc. No. 143, PageID# 866.) Upon the motion of Defendants Millay, Johnson,
Gary, Lake, Haslam, Schofield, Lorch, Woodall, Inglis, Stephens, Whitt, Butler, Treadwell, Setzer,
Harrington, Rochelle, and Chandler (Doc. No. 107), the Court dismissed all of Whipple’s claims
for injunctive relief against all defendants, reasoning that Whipple’s transfer from Turney to a
different facility mooted his claims for injunctive relief. 2 (Doc. No. 144, PageID# 868–69; Doc.
No. 145). Whipple appealed that denial of an injunction and the Sixth Circuit affirmed, holding
that “[n]o live controversy remains regarding the conditions at the prison where Whipple was
Whipple also named Governor Bill Haslam; TDOC Commissioner Derrick Schofield;
Arthur Crownover and Pamela Lorch, Senior Counsel in the Office of the Attorney General; Jason
Woodall, TDOC Assistant Commissioner of Operations; Debra Inglis, TDOC General Counsel;
Douglas Stephens, TDOC Office of General Counsel; Rhonda Whitt, TDOC Education Director;
Jeff Butler, Turney’s Associate Warden of Treatment; Jeff Hughes, Turney’s Fiscal Director; Kim
Sims, Turney counselor; Retrieving Independence; Kevin Treadwell and Julia Setzer, past Turney
library supervisors; “CCO Harrington” and Rocher Rochelle, Turney relief library supervisors;
and Hannah Chandler, former Turney school secretary. (Doc. No. 1, PageID# 281.)
The Court’s January 5, 2017 Order incorrectly states that this “action is dismissed” against
these Defendants. (Doc. No. 145.) The accompanying memorandum is clear that only Whipple’s
claims for injunctive relief were dismissed. (Doc. No. 144.) Defendants Gary, Johnson, and
Millay–whom Whipple named in their individual and official capacities–have answered and are
proceeding with discovery. (Doc. No. 175.) The Court dismissed all claims injunctive relief and
damages against Defendant Lake. (Doc. Nos. 144, 145.)
formerly incarcerated.” Whipple v. Millay, No. 17-5083, 2017 WL 3159939, at *1 (6th Cir. July
At the time of the Court’s dismissal order, service of process had not been effected upon
Defendants Kim Sims, Jeff Hughes, Arthur Crownover, and Cazz Crowder. (Doc. Nos. 50–52.)
The Attorney General’s Office filed a suggestion of Crownover’s death on May 5, 2016, showing
that he died on February 25, 2016. (Doc. No. 53.) Sims, Hughes, and Crowder no longer worked
at Turney when service was attempted. (Doc. Nos. 50–52.) Pursuant to the Court’s order,
Defendant Derrick Schofield filed their addresses under seal (Doc. No. 102), and summonses to
Sims, Hughes, and Crowder were re-issued on October 14, 2016 (Doc. No. 124.) Crowder and
Hughes were served with process. (Doc. Nos. 127, 131.) Hughes has not appeared in this action.
Defendant Sims has not yet been served. On Whipple’s motion for assistance in effectuating
service, the Court reissued a summons to Sims on September 12, 2017. (Doc. No. 198.)
Crowder was ultimately served on October 26, 2016, (Doc. No. 127), and he filed the
instant motion to dismiss (Doc. No. 135) on December 23, 2016, accompanied by a memorandum
of law (Doc. No. 136). Whipple responded in opposition on January 30, 2017 (Doc. No. 164), and
Crowder has replied (Doc. No. 174). Crowder argues that Whipple’s claims for injunctive relief
against him should be dismissed as moot because Whipple no longer resides at the Turney. (Doc.
No. 136, PageID# 854–56.)
In deciding a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief
can be granted, the Court must view the complaint in the light most favorable to the plaintiff,
accepting all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim.”
Fed. R. Civ. P. 8(a)(2). However, the plaintiff must allege sufficient facts to show that the claim is
“plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007).
“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more
than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 557). A plaintiff must plead more than “labels and conclusions,” “a
formulaic recitation of the elements of a cause of action,” or “naked assertion[s] devoid of further
factual enhancement.” Id. (alteration in original) (internal quotation marks omitted) (quoting
Twombly, 550 U.S. at 555, 557). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. Finally, “[a] document filed pro se is to be liberally construed, and a pro
se complaint, however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation and internal
quotation marks omitted).
“A ‘case is moot when the issues presented are no longer “live” or the parties lack a legally
cognizable interest in the outcome.’” Townsend v. Vasbinder, 365 F. App’x 657, 660 (6th Cir.
2010) (quoting Cty. of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)). “To determine whether a
case is moot this court considers ‘whether the relief sought would, if granted, make a difference to
the legal interests of the parties.’” Id. (quoting United States v. Detroit, 401 F.3d 448, 450–51 (6th
Cir. 2005)). Mootness also results “when events occur[ing] during the pendency of the litigation
. . . render the court unable to grant the requested relief.” Berger v. Cuyahoga Cty. Bar Ass’n, 983
F.2d 718, 724 (6th Cir. 1993) (quoting Carras v. Williams, 807 F.2d 1286, 1289 (6th Cir. 1986)).
A. Crowder’s Motion to Dismiss
In support of his Motion to Dismiss, Crowder argues that, “[b]ecause Plaintiff has not been
housed at Turney Center since April 2015, any claims for injunctive relief based on his
confinement at Turney Center or o[n] the operations at the prison have lost their character as a
present live controversy and consequently, are now moot.” (Doc. No. 136, PageID# 855.) Whipple
responds that his claims are not moot because he seeks damages from some defendants, “continues
to be subjected to retaliation and interference with access-to-courts,” and seeks injunctive relief
from TDOC that would apply to all of its facilities. (Doc. No. 164, PageID# 913.) Whipple also
argues that his “claims are capable of repetition, yet evade review.” (Id.)
Whipple named Crowder as a defendant in his official capacity as library supervisor, and
his only claims against Crowder are for declaratory and injunctive relief regarding access to the
courts and the law library at Turney. (Doc. No. 1, PageID# 281; see id. at PageID# 315.)
Specifically, Whipple alleges that Crowder was “complicit in Millay’s unlawful retaliation and
hindrance of access to the courts, in that he carries out her orders.” (Id. at PageID# 294.) Whipple
also states that Crowder refused to provide him with a copy of Turney’s current library hours to
attach to this lawsuit, and Whipple states that Crowder pressured him to sign a trust fund
withdrawal form that falsely stated the withdrawal was for copies when Whipple had instead
printed original legal documents. (Id. at PageID# 296, 310.) According to Whipple, “Crowder
consulted with Millay by telephone and told Plaintiff that he would either have to sign, surrender
his privileged legal documents, or receive a disciplinary.” (Id.)
Whipple requests an injunction ordering Defendants, including Crowder, to: (1) refrain
from further retaliation; (2) keep the law library open and accessible during all scheduled hours;
(3) place him on the legal deadline list; (4) remove all references to the false disciplinary charge
from his record; (5) restore his package ordering privileges; (6) restore him as an animal trainer in
the “Serving with Canines” program; (7) discontinue the “master callout” system; (8) discontinue
charges to print legal documents or amend the relevant policies to authorize these charges; (9)
repair or replace inoperable law library computers; (10) refrain from altering trust fund withdrawal
forms or forcing inmates to sign them; (11) make requested legal photocopies within 24 hours; and
(12) return him to Unit 2. (Doc. No. 1, PageID# 315.)
A prisoner’s transfer to a new facility moots claims for injunctive or declaratory relief
arising from the particular conditions of confinement at the former prison. Colvin v. Caruso, 605
F.3d 282, 289 (6th Cir. 2010); Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996). Finding mootness
is proper even where a prisoner faces the same issues giving rise to his original claims at the new
facility. Henderson v. Martin, 73 F. App’x 115, 117 (6th Cir. 2003). For example, in Henderson,
the plaintiff requested an injunction ordering that he be transferred to a smoke-free facility. Id. He
subsequently moved to a different facility where he still faced exposure to environmental tobacco
smoke. Id. The court found that the plaintiff’s claim was moot to the extent he requested injunctive
relief against officials at the former facility. Id.
Whipple’s claims against Crowder are moot because Whipple’s complaint seeks to alter
policies and practices specific to Turney, and he is no longer imprisoned there. Thus, “no actual
injury remains that the Court could redress with a favorable decision.” Demis v. Sniezek, 558 F.3d
508, 513 (6th Cir. 2009). In fact, the Sixth Circuit has already found Whipple’s claims for
injunctive relief moot with respect to all the other defendants then present before the Court.
Whipple, 2017 WL 3159939, at *1. The law of the case doctrine bars reconsideration of that
determination now. United States v. Rayborn, 495 F.3d 328, 337 (6th Cir. 2007) (quoting Westside
Mothers v. Olszewski, 454 F.3d 532, 538 (6th Cir. 2006)). Whipple’s claims against Crowder are
moot based on his transfer from Turney just as they are moot against the other defendants. See,
e.g., Kensu v. Rapelje, No. 12-11877, 2015 WL 5302816, at *2 (E.D. Mich. Sept. 10, 2015).
Whipple’s arguments otherwise are unavailing. First, his complaint does not seek damages
from Crowder. (See Doc. No. 1, PageID# 315.) Second, even if Whipple “continues to be subjected
to retaliation and interference with access-to-courts” at Bledsoe County Correctional Complex,
(Doc. No. 164, PageID# 913), Crowder has no authority to alter those conditions. See, e.g., Jackson
v. Stoddard, No. 1:13-cv-1297, 2014 WL 2862614, at *2 (W.D. Mich. June 24, 2014) (finding
moot plaintiff’s motion to compel defendant to grant plaintiff access to law library because
“plaintiff is no longer housed in a facility in which [defendant] exercises any authority”). Third,
his complaint does not state a claim for injunctive relief beyond Turney because his allegations
and request for injunctive relief relate only to conditions there. (See Doc. No. 1, PageID# 315.)
Insofar as Whipple’s request that his disciplinary report be removed from his record could be
construed as a request for broader relief, (Doc. No. 1, PageID# 315; Doc. No. 164, PageID# 913–
14), Crowder, as Turney’s former librarian, is not a proper defendant to that claim. Whipple has
not alleged that Crowder has any role in the maintenance of inmate disciplinary records. See Street
v. Rodriguez, No. 12-13995, 2014 WL 840083, at *3–5 (E.D. Mich. Mar. 4, 2014).
Whipple makes a final attempt to save his claims against Crowder by arguing that they are
“capable of repetition, yet evade review.” (Doc. No. 164, PageID# 913.) This exception to
mootness applies where the challenged action is “too short in duration to be fully litigated before
it ceases” and where there is a “reasonable expectation that the same parties will be subjected to
the same action again.” Wilson v. Gordon, 822 F.3d 934, 951 (6th Cir. 2016) (quoting Appalachian
Reg’l Healthcare, Inc. v. Coventry Health & Life Ins. Co., 714 F.3d 424, 430 (6th Cir. 2013)).
Whipple asserts that he meets this standard because “the appeal in this matter was still pending
when the plaintiff was transferred” and because “the plaintiff could be transferred back to Turney
Center at any time.” (Doc. No. 164, PageID# 916.) But mootness can befall an action at any point
while it is pending, even while on appeal, and Whipple’s “assertion that he might return to [Turney]
at an unknown future date does not fall within the exception to the mootness doctrine for matters
‘capable of repetition, yet evading review’; such speculation simply does not constitute a
reasonable showing that he will again be subjected to the conditions at [Turney].” Howard v.
Dougan, 221 F.3d 1334, 2000 WL 876770, at *2 (6th Cir. June 23, 2000) (unpublished table
decision). Whipple’s claims against Crowder are simply and unavoidably moot.
B. Dismissal of Whipple’s Claims Against Hughes and Sims
The same reasoning applies with equal force to Whipple’s claims against Defendants
Hughes and Sims. Whipple sued both defendants in their official capacities only. (Doc. No. 1,
PageID# 292.) He seeks only injunctive relief against both regarding the conditions of confinement
at Turney. (Id. at PageID# 314.) As the Sixth Circuit held, “[n]o live controversy remains regarding
the conditions at the prison where Whipple was formerly incarcerated.” Whipple v. Millay, No. 175083, 2017 WL 3159939, at *1 (6th Cir. July 13, 2017). Whipple’s claims for injunctive relief
against Hughes and Sims are therefore also moot.
Because Whipple proceeds in forma pauperis, the court must “dismiss the case at any time
if the court determines that . . . the action or appeal . . . fails to state a claim on which relief may
be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). The Court cannot grant relief for a moot claim.
Accordingly, the Court must also dismiss Whipple’s claims against Hughes and Sims at this
C. Whipple’s Claims Against Crownover
Finally, the Attorney General’s Office filed a suggestion of Defendant Crownover’s death
on May 5, 2016, submitting evidence that Crownover died on February 25, 2016. (Doc. No. 53.)
No motion for substitution of a proper party has been filed. Because more than ninety days have
passed since service of the suggestion of death, Whipple’s claims against Crownover must be
dismissed. Fed. R. Civ. P. 25(a)(1).
For these reasons, Defendant Crowder’s Motion to Dismiss (Doc. No. 135) is GRANTED.
All claims are DISMISSED against Defendants Crowder, Hughes, Sims, and Crownover.
IT IS SO ORDERED.
WAVERLY D. CRENSHAW, JR.
CHIEF UNITED STATES DISTRICT JUDGE
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