Smith v. Potter et al

Filing 3

MEMORANDUM OPINION OF THE COURT. Signed by District Judge Kevin H. Sharp on 1/30/13. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(afs)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
COOKEVILLE DIVISION

MICHAEL PERNELL SMITH,
Plaintiff,
v.
MICHAEL POTTER, FENTRESS COUNTY JAIL,
JOSH SMITH, and BARBRA ROGERS,
Defendants.

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Case No. 2:13-cv-00002
Judge Sharp

MEMORANDUM OPINION
Plaintiff Michael Pernell Smith, a state prisoner presently incarcerated at the Overton County Jail
in Livingston, Tennessee, filed this action under 42 U.S.C. § 1983 based on events that occurred when
the plaintiff was housed at the Fentress County Jail. The complaint is before the court for initial review
pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(a) and McGore v. Wrigglesworth, 114 F.3d 601 (6th
Cir. 1997), reversed on other grounds by Jones v. Bock, 549 U.S. 199 (2007).
I.

Factual Allegations
The plaintiff alleges that he was sentenced to eleven months and twenty-nine days of

incarceration on July 30, 2012 and began serving his sentence at the Fentress County Jail. Shortly after
he arrived at the jail, he began suffering verbal abuse of a sexual nature by corrections officer Michael
Potter.

The plaintiff does not allege that Potter ever touched him inappropriately.

Instead, Potter

repeatedly made homosexual references to the plaintiff in front of other inmates, grabbed himself and
made vulgar comments, and told other inmates and jail officials that the plaintiff was homosexual and that
the plaintiff was in jail for beating and choking his girlfriend (which was not true). Potter also told the
plaintiff and other inmates that the reason the plaintiff did not know how to treat women was because he
“really wanted men.” (ECF No. 1, at 6.) In addition, Potter allegedly tampered with the plaintiff’s mail on
one occasion by adding “vulg[a]r homosexual talk” at the bottom of a letter after the plaintiff had sealed
the letter and sent it to be mailed. (Id.) The plaintiff also claims that his girlfriend left him because of
comments made to her by Potter when she came to visit.

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In addition to suing Potter, the plaintiff also names as defendants the Fentress County Jail,
Assistant Jail Administrator Josh Smith, and Jail Administrator Barbra Rogers. The claims against the
latter two defendants are apparently premised upon their having denied the plaintiff’s grievances and
requests to transfer. The plaintiff asserts he would like to file “charges of neglect” against Rogers and
Smith. (ECF No. 1, at 5.)
II.

Standard of Review
Under 28 U.S.C. § 1915(e)(2)(B), the court must dismiss a civil complaint or any portion of a

complaint filed in forma pauperis that (1) fails to state a claim for which relief can be granted, or (2) is
frivolous. Section 1915A(a) similarly requires initial review of any “complaint in a civil action in which a
prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.” The
Sixth Circuit has confirmed that the dismissal standard articulated by the Supreme Court in Ashcroft v.
Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), “governs dismissals
for failure to state a claim under those statutes 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
scrutiny on initial review, “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).
Although pro se pleadings are to be held to a less stringent standard than formal pleadings
drafted by lawyers, Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Jourdan v. Jabe, 951 F.2d 108, 110
(6th Cir. 1991), the courts’ “duty to be ‘less stringent’ with pro se complaints does not require us to
conjure up [unpleaded] allegations.” McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979) (citation omitted).
III.

Law and Analysis
To state a claim under 42 U.S.C. § 1983, a plaintiff must (1) identify a right secured by federal law

or the United States Constitution, and (2) demonstrate a deprivation of that right by a person acting under
color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Russo v. City of Cincinnati, 953 F.2d 1036,
1042 (6th Cir. 1992). Both parts of this test must be satisfied to support a claim under § 1983. Christy v.
Randlett, 932 F.2d 502, 504 (6th Cir. 1991).
As an initial matter, the claims against the Fentress County Jail are subject to dismissal because
the jail is a building, not a person subject to liability under § 1983. Monell v. Dep’t of Soc. Servs., 436

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U.S. 658, 690 & n.55 (1978) (holding that, for purposes of a § 1983 action, a “person” includes individuals
and “bodies politic and corporate”). Cf. Petty v. Cnty. of Franklin, Ohio, 478 F.3d 341, 347 (6th Cir.2007)
(affirming district court’s conclusion that a county sheriff's department is also not a legal entity under Ohio
law that is susceptible to suit under § 1983); Mathes v. Metro. Gov’t of Nashville & Davidson Cnty., 2010
WL 3341889, at *2 (M.D. Tenn. Aug. 25, 2010) (noting that “federal district courts in Tennessee have
frequently and uniformly held that police departments and sheriff’s departments are not proper parties to
a § 1983 suit”).1
Second, although defendants Josh Smith and Barbra Rogers, as jail officials, may be deemed
state actors subject to liability under § 1983, it is clear that the complaint does not adequately allege facts
that suggest either of these defendants violated the plaintiff’s constitutional rights. The claims against
Smith and Rogers are apparently based on their denial of the plaintiff’s grievances. The Sixth Circuit has
held that where defendants’ “only roles . . . involve the denial of administrative grievances or the failure to
act . . . they cannot be liable under § 1983.” Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). Thus,
claims that are based simply on the denial of a grievance do not state a claim of constitutional dimension.
Because the complaint does not contain any factual allegations suggesting Smith or Rogers was involved
in the actions upon which the complaint is based, the complaint fails to state a claim against them for
which relief may be granted.
Finally, the allegations in the complaint are insufficient to state a claim against defendant Potter
over which this Court has jurisdiction under 42 U.S.C. § 1983. The crux of the plaintiff’s claim against
Potter is that Potter engaged in sexual harassment, by taunting the plaintiff in a sexually suggestive
manner, calling him names, spreading rumors about him, and being sexually vulgar. A claim of sexual
harassment may implicate a prisoner’s Eighth Amendment right against cruel and unusual punishment.
“[B]ecause the sexual harassment or abuse of an inmate by a corrections officer can never serve a

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Even if the Court, construing the pro se complaint liberally, assumes that the plaintiff intended to
sue Fentress County as the entity responsible for the operation of the Fentress County Jail, a municipality
may only be liable under § 1983 when its policy or custom causes the injury, regardless of the form of
relief sought by the plaintiff. Los Angeles County v. Humphries, --- U.S. ----, ----, 131 S. Ct. 447, 453–54
(2010) (citing Monell, 436 U.S. at 694). To state a municipal-liability claim, the plaintiff must identify a
policy or custom of the municipality, connect the policy to the governmental entity, and show that his
injury was incurred because of the execution of that policy. Turner v. City of Taylor, 412 F.3d 629, 639
(6th Cir. 2005). The plaintiff here does not allege that his injury resulted from the implementation of any
policy or custom of the municipality.

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legitimate penological purpose and may well result in severe physical and psychological harm, such
abuse can, in certain circumstances, constitute the ‘unnecessary and wanton infliction of pain’ forbidden
by the Eighth Amendment.” Freitas v. Ault, 109 F.3d 1335, 1338 (8th Cir. 1997) (citations omitted).
However, “[t]o prevail on a constitutional claim of sexual harassment, an inmate must . . . prove, as an
objective matter, that the alleged abuse or harassment caused ‘pain’ and, as a subjective matter, that the
officer in question acted with a sufficiently culpable state of mind.” Id. at 1338 (citing Hudson v. McMillian,
503 U.S. 1, 8 (1992)); Jackson v. Madery, 158 F. App’x 656, 661–62 (6th Cir. 2005).
Sexual harassment that does not involve contact or touching, psychologically painful though it
may be, fails to satisfy the objective requirement because such conduct does not constitute the
unnecessary and wanton infliction of pain. See Morales v. Mackalm, 278 F.3d 126, 132 (2d Cir. 2002)
(allegations that prison guard asked prisoner to have sex with her and to masturbate in front of her and
other female staffers did not rise to level of an Eighth Amendment violation); Howard v. Everett, No. 991277EA, 2000 WL 268493, at *1 (8th Cir. Mar. 10, 2000) (sexual comments and gestures by prison
guards did not constitute unnecessary and wanton infliction of pain); Adkins v. Rodriguez, 59 F.3d 1034
(10th Cir. 1995) (allegations that a prison deputy made verbal comments about the plaintiff’s body, his
own sexual prowess, and his sexual conquests did not state a constitutional claim). The Sixth Circuit has
held that even minor isolated incidents of sexual touching coupled with occasional offensive sexual
remarks do not rise to the level of an Eighth Amendment violation. See, e.g., Jackson v. Madery, 158 F.
App’x at 661 (allegation that correctional officer rubbed and grabbed prisoner’s buttocks in a degrading
and humiliating manner was “isolated, brief, and not severe” and so failed to violate the Eighth
Amendment); Johnson v. Ward, No. 99-1596, 2000 WL 659354, at *1 (6th Cir. May 11, 2000) (male
prisoner’s claim that a male officer placed his hand on the prisoner’s buttock in a sexual manner and
made an offensive sexual remark did not meet the objective component of the Eighth Amendment).
Moreover, the plaintiff does not allege any physical injury as a result of the alleged sexual
harassment.

42 U.S.C. § 1997e(e) precludes a claim by a prisoner “for mental or emotional injury

suffered while in custody without a prior showing of physical injury.” See Harden–Bey v. Rutter, 524 F.3d
789, 795–96 (6th Cir. 2008); Jarriett v. Wilson, 162 F. App’x 394, 400 (6th Cir. 2005). See also Taylor v.
United States, 161 F. App’x 483, 486–87 (6th Cir. 2007) (recognizing that the majority of courts hold that

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§ 1997e(e) applies to all prisoner lawsuits).
The plaintiff’s allegation that Potter tampered with his mail on one occasion likewise does not
state a claim for a constitutional violation. See Davis v. Goord, 320 F.3d 346, 351 (2nd Cir. 2003) (“[A]n
isolated incident of mail tampering is usually insufficient to establish a constitutional violation.”); Rowe v.
Shake, 196 F.3d 778, 782 (7th Cir. 1999) (allegations that prison officials “repeatedly and intentionally
withheld” a prisoner’s mail may state a First Amendment claim but an “isolated” instance will not).
In sum, the plaintiff’s claims, even if true, do not establish that Potter violated his constitutional
rights.
IV.

Conclusion
For the reasons set forth herein, the Court will dismiss the plaintiff’s pro se complaint in its

entirety for failure to state a claim under 42 U.S.C. § 1983 for which relief may be granted.
An appropriate order is filed herewith.

Kevin H. Sharp
United States District Judge