Woodruff v. Melton et al

Filing 99

REPORT AND RECOMMENDATION: For the reasons explained above, the Magistrate Judge RECOMMENDS that: 1) the motions for summary judgment presently before the court (Docs. 81 and 87 ) be GRANTED; 2) this action 1 be dismissed against the moving parties for failure to exhaust and for failure to state a claim on which relief may be granted; 3) this action be DISMISSED WITH PREJUDICE; 4) dismissal of this action COUNT AS A STRIKE under 28 U.S.C. § 1915 (g); 5) acceptance and adoption o f this R&R constitute the FINAL JUDGMENT in this action; 6) any appeal NOT BE CERTIFIED as taken in good faith pursuant to 28 U.S.C. § 1915(a)(3); 7) any pending motions be TERMINATED AS MOOT. Signed by Magistrate Judge Joe Brown on 7/8/2015. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NORTHEASTERN DIVISION
VINCENT D. WOODRUFF,
Plaintiff,
v.
SHERIFF W.B. MELTON, ET AL.,
Defendants.

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No. 2:13-00085
Judge Sharp/Brown

REPORT AND RECOMMENDATION
For the reasons explained below, the Magistrate Judge RECOMMENDS that: 1) the
motions for summary judgment presently before the court (Docs. 81 and 87) be GRANTED; 2) this
action be dismissed against the moving parties for failure to exhaust and for failure to state a claim
on which relief may be granted; 3) this action be DISMISSED WITH PREJUDICE; 4) dismissal
of this action COUNT AS A STRIKE under 28 U.S.C. § 1915(g); 5) acceptance and adoption of
this Report and Recommendation (R&R) constitute the FINAL JUDGMENT in this action; 6) any
appeal NOT BE CERTIFIED as taken in good faith pursuant to 28 U.S.C. § 1915(a)(3); 7) any
pending motions be TERMINATED AS MOOT.
I. INTRODUCTION
AND
BACKGROUND
Plaintiff proceeding pro se and in forma pauperis was a prisoner in the Overton County Jail
(OCJ) when he brought this action under 42 U.S.C. § 1983 alleging violations of his rights under
the First, Fifth, Sixth, and Eighth Amendments.1 (Doc. 1) Because plaintiff was a prisoner at OCJ
when he brought this action, this case is subject to the Prison Litigation Reform Act (PLRA).2
1

Plaintiff did not allege any violations of State law in his complaint, nor can it be liberally construed from the
complaint that he intended to.
2

Plaintiff was released from custody subsequent to filing the complaint. (Doc. 41)

The complaint named the following defendants: 1) W.B. Melton, Sheriff of Overton
County; 2) Shannon Harvey, OCJ administrator; 3) John McLeod, former OCJ administrator; 4)
nurse Debbie Deck, OCJ medical team administrator; 5) John Meadows III, defense counsel; 6) Art
Johnson, defense counsel. (Doc. 1, pp. 5-7 of 24)3 The complaint was dismissed with prejudice
against defendants Meadows and Johnson on initial review. (Docs. 3-4)
This matter was referred to the Magistrate Judge on October 18, 2013. (Doc. 4, p. 3) The
order of referral instructed the Magistrate Judge to “sua sponte recommend the dismissal of any
claim for the reasons set forth in 28 U.S.C. § 1915(e)(2).” (Doc. 4, p. 3)
The Magistrate Judge entered a R&R on August 12, 2014 (Doc. 74) recommending that
defendant McLeod’s March 25, 2014 motion to dismiss (Doc. 52) be granted, and the case against
him be dismissed with prejudice. The District Judge accepted and approved the R&R on October
10, 2014. (Doc. 78)
Defendant Deck filed a motion for summary judgment on January 12, 2015, an
accompanying statement of undisputed facts, her personal affidavit, the declaration of defendant
Harvey with attachments, and a supporting brief. (Docs. 81-82) Plaintiff did not respond to
defendant Deck’s motion for summary judgment, nor did he move for an extension of time to do so.
Defendants Melton and Harvey filed a motion for summary judgment on March 23, 2015.
(Doc. 87) Defendants Melton and Harvey also filed a supporting memorandum, a statement of
undisputed facts and extensive documentation, much of which was filed under seal. (Docs. 89-94)
Plaintiff also did not respond to defendants Melton and Harvey’s motion for summary judgment

3

Plaintiff numbered the pages of the continuation of the statement of facts repeating page numbers already
used in the form-complaint that he filed. To eliminate confusion, references to page numbers in Doc. 1, i.e., the
complaint, are to the page numbers assigned by the court’s CMECF system.

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nor, once again, did he move for an extension of time to do so.
Defendants’ motions for summary judgement are now properly before the court. This matter
is set for trial on August 25, 2015. (Doc. 58)
II. ANALYSIS
A. Summary Judgment Standard
Summary Judgment is appropriate only where “there is no genuine issue as to any material
fact . . . and the moving party is entitled to summary judgment as a matter of law.” Rule 56(c), Fed.
R. Civ. P.; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see Sierra Club v. ICG Hazard, LLC,
781 F.3d 281, 284 (6th Cir. 2015). A “genuine issue of material fact” is a fact that, if proven at trial,
could lead a reasonable jury to return a verdict for the non-moving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). “Where the record taken as a whole could not lead a rational
trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)(citation omitted).
The moving party has the burden of showing the absence of genuine factual disputes from
which a reasonable jury could return a verdict for the non-moving party. Anderson, 477 U.S. at 24950. “While all inferences are drawn in favor of the non-moving party,” the non-moving party “still
must present some affirmative evidence supporting its position to defeat an otherwise appropriate
motion for summary judgment.” Tucker v. Tennessee, 539 F.3d 526, 531 (6th Cir. 2008)). The nonmoving party must adduce either direct or circumstantial evidence to prevail. See Upshaw v. Ford
Motor Co., 576 F.3d 576, 584 (6th Cir. 2009). “‘A ‘mere scintilla’ of evidence is not enough for the
non-moving party to withstand summary judgment.’” U.S. ex. Rel. Wall v. Circle C Const., L.L.C.,
697 F.3d 345, 351 (6th Cir. 2012)(citation omitted).

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B. Claims Under § 1983
To state a claim under § 1983, the plaintiff must allege and show: 1) that he was deprived
of a right secured by the Constitution and/or laws of the United States; and 2) that the deprivation
was caused by a person acting under color of state law. Wershe v. Combs, 763 F.3d 500, 504-05 (6th
Cir. 2014). A successful § 1983 claimant also must establish that defendants acted knowingly or
intentionally to violate his rights. See Daniels v. Williams, 474 U.S. 327, 333 (1986).
C. Plaintiff’s Failure to Respond to Defendants’
Motions for Summary Judgment
As previously noted, plaintiff did not respond to defendants’ motions for summary judgment.
“Failure to respond to a moving party’s statement of material facts . . . within the time periods
provided by [the local rules of court] shall indicate that the asserted facts are not disputed for
purposes of summary judgment.” Local Rules of Court, LR56.01(g). Because plaintiff did not
respond to the motions for summary judgment, the statements of undisputed facts filed by
defendants Melton, Harvey, and Deck are deemed undisputed for the purpose of this analysis.
D. Defendant Deck’s Motion for
Summary Judgment
Plaintiff alleges that defendant Deck was deliberately indifferent to his serious medical needs
in violation of his rights under the Eighth Amendment.4 (Doc. 1, ¶ IV.F, pp. 16-18) Plaintiff makes
the two specific allegations discussed below against her.
First, plaintiff asserts that he became ill in January 2012, lost over 30 lbs., and suffered pain
and dizziness for over a week. Plaintiff put in a sick call and, after defendant Deck examined
him/took his vitals, she gave him 4 aspirin, a bottle of nasal spray, and allegedly told him he would

4

Plaintiff’s factual allegations were addressed in detail on initial review. (Doc. 3, pp. 2-4) As plaintiff has
not amended his complaint, the court’s previous summary of the factual allegations is incorporated herein by reference.

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“just have to let it run its course.” (Doc. 1, p. 16 of 24) Plaintiff avers that he “endured” cramps in
his intestines, legs and stomach for over seven days “while ‘it ran its course,’” he lost another 31
lbs., suffered diarrhea, and developed hemorrhoids. (Doc. 1, p. 17 of 24)
Plaintiff avers that he put in four additional sick calls from February 2012 to June 2013 in
an effort to obtain relief because the “cream” defendant Deck later gave him for his hemorrhoids had
no effect, and the aspirin provided only a few hours relief. (Doc. 1, p. 17 of 24) Plaintiff asserts that
he put in a grievance on August 31, 2013, adding that he was “still awaiting an answer to the
grievance” at the time he filed his complaint. (Doc. 1, p. 17 of 24)
Plaintiff claims next that he put in a sick call in December 2012 to see a dentist for a cavity,
and that he saw defendant Deck “at least three times” between then and August 2013 during which
time he was given pain medicine. (Doc. 1, pp. 17-18 of 24) According to plaintiff, the “pain
medicine only relieve[d] for a few h[ours].” (Doc. 1, p. 18 of 24) After allegedly enduring 20 days
of toothaches, plaintiff filed a grievance on August 31, 2013 to see a dentist. (Doc. 1, p. 18 of 24)
Defendant Deck presents the following arguments in her motion for summary judgment: 1)
plaintiff’s claims against her are time barred (Doc. 82, pp. 2-3); 2) plaintiff has failed to establish
that she was deliberately indifferent to any serious medical needs (Doc. 82, pp. 3-10); 3) plaintiff
failed to exhaust his administrative remedies prior to bringing this action in federal court (Doc. 82,
pp. 10-12). The Magistrate Judge will address defendant Deck’s exhaustion argument first.
1. Exhaustion
The PLRA provides that “[n]o action shall be brought with respect to prison conditions under
section 1983 . . . or any other Federal law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C.
§ 1997e(a). “[E]xhaustion is mandatory under the [PLRA] and . . . unexhausted claims cannot be

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brought in court.” Jones v. Bock, 549 U.S. 199, 211 (2007). “[T]o properly exhaust administrative
remedies prisoners must ‘complete the administrative review process in accordance with the
applicable procedural rules,’ – rules that are defined not by the PLRA, but by the prison grievance
process itself.” Jones, 549 U.S. at 218. To establish that he has exhausted his administrative
remedies, plaintiff must show that he pursued his administrative remedies through “one complete
round” of the grievance procedure.

See Thomas v. Woolum, 337 F.3d 720, 733 (6th Cir.

2003)(abrogated on other grounds by Woodford v. Ngo, 548 U.S. 81 (2006)). There are no futility
or other exceptions to the exhaustion requirement under the PLRA. Booth v. Churner, 532 U.S. 731,
741 & n. 6 (2001); see Cox v. Mayer, 332 F.3d 422, 425, 427-428 (6th Cir. 2003)(exhaustion
requirement applies to a former prisoner who filed his complaint without exhausting his
administrative but has since been released from custody).
Defendant Harvey asserts the following in her declaration submitted in support of defendant
Deck’s motion for summary judgment: 1) during the period at issue in this action, inmates at OCJ
could file grievances at any time by completing an inmate grievance form, and that the grievance
forms “stated a the bottom that if an inmate wished to appeal a response to a grievance, the inmate
must sign, date and return the form to the Supervisor for processing within five (5) days of receipt”
(Doc. 81-3, ¶ 3, p. 2 of 51); 2) the copies of plaintiff’s grievances attached to her declaration were
“true and correct cop[ies] of all grievances . . . submitted to [the] Jail staff by the plaintiff between
the dates of January 1, 2012 and September 20, 2013” (Doc. 81-3, ¶ 4, p. 2 of 51); 3) “[t]here is no
record of . . . [plaintiff] . . . submitting any appeals of any grievance dispositions while in the
Overton County Jail” (Doc. 81-3, ¶ 7, p. 2 of 51). Defendant Harvey’s last assertion is corroborated
by copies of 15 grievances filed by plaintiff while at OCJ in which plaintiff did not once appeal the

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response to any grievance,5 including the two grievances at issue that pertain to his medical care.
(Doc. 81-3, pp. 10, 13, 16, 26-28, 31-32, 42, 44, 46, 48, 50-51 of 51)
As to the two grievances at issue, the forms themselves show that plaintiff complained that
he had a “bloody hemorrhoidal problem that ha[d] been plaguing [him] for about 2 yrs,” that the
“hemorrhoidal cream . . . [he] . . . receiv[ed]” was not giving him any relief, and that he wanted to
see a doctor “that specialize[d] in this type of problem . . . .” (Doc. 81, Ex. 2, p. 22 of 68) In the
second grievance, plaintiff complained that he had been trying to get a cavity filled for over a year,
and that the “[O]rajel pain med [wa]s not sufficient . . . for very long . . . .” (Doc. 81, Ex. 2, p. 23
of 68) Both forms show that defendant Deck received the grievances on September 3, 2013, and that
she replied to plaintiff the same day. The two grievance forms also show that plaintiff did not check
the space on the form indicating that he wanted to appeal defendant Deck’s responses, nor did he
sign and date the forms signaling his intent to do so.
It is apparent from record before the court that plaintiff did not exhaust his administrative
remedies as to those claims he asserts against defendant Deck. The grievances do not allege that
defendant Deck was deliberately indifferent to his serious medical needs, nor can such an inference
be liberally construed from the grievance narratives. Plaintiff complains only that the treatment he
received was not working and he wanted to see a doctor and a dentist. The forms also are clear on
their face that plaintiff did not seek to appeal the responses to his grievances. Moreover, it is clear
from his statement in the complaint that he was “still awaiting an answer to the grievance” that
plaintiff did not exhaust his administrative remedies as to these grievances prior to bringing this
action in federal court. Title 42 U.S.C. § 1997e(a) requires prisoner plaintiff’s to exhaust their
5

Plaintiff filed numerous other grievances while at OCJ complaining of alleged discrimination in treatment
of inmates, unjust punishment, adequacy of food for inmates who cleaned the pods, guards interfering with in-cell access
to pastors, failure to deliver promised Bibles, interference with regular and legal mail, unauthorized change of
recreational time, unauthorized stip searches, unsanitary living conditions, insufficient towels, incompatible cell mates.

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administrative remedies prior to filing suit in federal court.
For the reasons stated above, the complaint against defendant Deck is subject to dismissal
for failure to exhaust. Nor, for reasons previously explained, is plaintiff absolved from the PLRA’s
exhaustion requirement because OCJ’s grievance process is no longer available to him. Although
plaintiff’s failure to exhaust constitutes mandatory dismissal of this action against defendant Deck,
it is not lost on the Magistrate Judge that, absent evidence that the OCJ grievance procedure is set
forth in an inmate handbook, or some other jail publication available to prisoners, an option to
appeal printed on the bottom of a grievance form might be viewed in some quarters as falling short
of a “procedural rule” that plaintiff was required to follow. Therefore, the Magistrate Judge will
address plaintiff’s Eighth Amendment claim against defendant Deck on the merits.
2. Plaintiff’s Eighth Amendment Claim
Against Defendant Deck
“[A] prisoner's Eighth Amendment right is violated when prison doctors or officials are
deliberately indifferent to the prisoner’s serious medical needs.” Quigley v. Tuong Vinh Thai, 707
F.3d 675, 681 (6th Cir. 2013)(citations omitted). However, complaints of malpractice or allegations
of negligence are insufficient to entitle plaintiff to relief under § 1983. Estelle v. Gamble, 429 U.S.
97, 105-06 (1976). A prisoner’s difference of opinion regarding treatment also does not rise to the
level of an Eighth Amendment violation. Estelle, 429 U.S. at 107. Finally, “[w]here a prisoner has
received some medical attention,” but disputes the “adequacy of that treatment, the federal courts
are generally reluctant to second-guess medical judgments and constitutionalize claims that sound
in state tort law.” Graham ex rel Estate of Graham v. County of Washtenaw, 358 F.3d 377, 385 (6th
Cir. 2004)(citation omitted).
Defendant Dent asserts in her affidavit that she examined and treated plaintiff numerous
times during the period at issue. (Doc. 81, Ex. 2, ¶¶ 8-12, 16-21, 23, 26-29, 36, pp. 3-9 of 68)
8

Defendant Dent’s affidavit is supported by the copy of plaintiff’s OCJ medical records attached to
her affidavit, as well as those medical records filed under seal in connection with defendant Melton
and Harvey’s motion for summary judgment. (Doc. 81, Ex. 2A, pp. 17, 19-20, 22, 28, 33-37; Doc.
94, Ex. I, K-P, BB-CC, II, MM, SS, UU) Given that defendant Dent provided medical treatment to
plaintiff throughout the period in question, it is obvious that plaintiff merely disputes the adequacy
of the treatment provided. As established above, where a prisoner-plaintiff merely disputes the
adequacy of medical care provided, an Eighth Amendment claim will not lie. In short, plaintiff’s
Eighth Amendment claim against defendant Dent is subject to dismissal for failure to state a claim
on which relief may be granted.
D. Defendant Melton and Harvey’s Motion
for Summary Judgment
Plaintiff alleges generally that defendant Melton’s policy of not transferring prisoners to a
TDOC facility where they could receive needed medical and mental care violated his rights under
the Eighth Amendment. (Doc. 1, p. 21 of 24) Plaintiff alleges specifically that “[i]t was ‘rumored’”
defendant Melton told defendant Harvey not to transfer anyone to a TDOC prison “unless it was in
the best interest of the jail . . . .” (Doc. 1, p. 10 of 24) Apart from this single allegation, defendant
Melton is not mentioned anywhere else in the statement of facts.
Plaintiff’s allegations against defendant Harvey are that: 1) “[i]t was ‘rumored’” she was told
by defendant Melton not to transfer anyone to a TDOC prison “unless it was in the best interest of
the jail . . . .” (Doc. 1, p. 10 of 24); 2) he was told by OCJ officers Jenkins and Alred that defendant
Harvey’s policies would not permit him to obtain copies of his complaint, paper, pencil, or
envelopes (Doc. 1, p. 19 of 24); 3) defendant Harvey’s policies hindered his access to the courts
(Doc. 1, p. 19 of 24). Apart from these allegations, defendant Harvey is not mentioned further in
the statement of facts.
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Defendants Melton and Harvey argue as follows in support of their motion for summary
judgment: 1) they are not liable in their official capacity because process was not served on the
County of Overton (Doc. 89, pp. 14-15 of 35); 2) “many” of plaintiff’s claims are barred by the
statute of limitations (Doc. 89, pp. 16-18 of 35); 3) plaintiff failed to exhaust his administrative
remedies (Doc. 89, pp. 16-18 of 35); 4) plaintiff’s First and Eighth Amendment claims fail to state
a claim on which relief may be granted (Doc. 89, pp. 18-31 of 35); 5) they are not liable under the
doctrine of respondeat superior (Doc. 89, pp. 32 of 35); 6) they are entitled to qualified immunity
(Doc. 89, pp. 32-34 of 35). The Magistrate Judge will address only those arguments necessary to
recommend disposition of this case.
1. Exhaustion
Defendants Melton and Harvey argue that plaintiff did not appeal the responses to any of the
grievances that he filed and, as such, he failed to complete one complete round of the available
grievance process. As previously noted above at pp. 6-7, plaintiff did not appeal any of the 15
grievances he filed while incarcerated in OCJ. Therefore, defendant Melton and Harvey’s argument
is factually correct. Even more basic, however, is the fact that none of the allegations against
defendants Melton and Harvey enumerated above were the subject of any grievance, i.e., there is
nothing in the grievances about any OCJ policy not to transfer its prisoners to TDOC, the alleged
inability to obtain copies, paper, pencils, and or envelopes, or problems with filing legal documents
due to OCJ policy, or claims that the acts and/or omissions of OCJ officials denied him access to the
courts. In addition to the two medical grievances already discussed, the remaining 13 grievances
pertained solely to those complaints summarized above at p. 7 n. 4. A plain reading of the
grievances also reveals that they were not aimed at defendants Melton and/or Harvey – they were
aimed at the alleged acts and/or omissions of others, corrections officers and other inmates alike.

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As explained above, plaintiff’s action against defendants Melton and Harvey should be
dismissed for failure to exhaust. Although plaintiff’s failure to exhaust constitutes mandatory
dismissal of this action as to defendants Melton and Harvey, for reasons previously explained, the
Magistrate Judge will address the merits of plaintiff’s claims against defendants Melton and Harvey,
again only to the extent necessary to recommend disposition of the case.
2. Alleged Refusal to Transfer Prisoners
to a TDOC Facility
Plaintiff’s only discernable claim against both defendants Melton and Harvey is that they
prevented OCJ prisoners from being transferred to TDOC. Plaintiff provides the following factual
allegations in support of this claim: 1) he was in constant fear of harm (Doc. 1, p. 10 of 24); 2)
rehabilitative programs available at a TDOC prison were not available at OCJ (Doc. 1, p. 10 of 24);
3) officers were spreading the word in the general population about sex offenders, including plaintiff
(Doc. 10, p. 11 of 24); 4) officers used derogatory words to describe plaintiff and other sex
offenders.

The law is firmly established that prisoners have no constitutional right to be confined

in a particular prison. See Olim v. Wakinekona, 461 U.S. 238, 245-46 (1983). Plaintiff also does
not allege, nor can it be liberally construed from the complaint, that he suffered actual harm during
the time he was at OCJ. An inmate’s subjective fear that he will suffer some kind of harm as a result
of official misconduct is insufficient to state a claim under §1983. See Preiser v. Newkirk, 422 U.S.
395, 403 (1975). As to plaintiff’s claim that OCJ offers no rehabilitative programs, whereas TDOC
does, prisoners have no constitutionally cognizable right to participate in rehabilitative programs.
See Rhodes v. Chapman, 452 U.S. 337, 348 (1981). Finally, without more, verbal harassment and
idle threats of the nature described in the complaint do not rise to the level of a constitutional
violation. Wingo v. Tennessee Department of Correction, 499 Fed.Appx. 453, 455 (6th Cir.
11

2012)(citation omitted).
As shown above, plaintiff’s claim that defendants Melton and Harvey prevented prisoners
from being transferred from OCJ to a TDOC facility is without merit. Consequently, this claim is
subject to sua sponte dismissal for failure to state a claim on which relief may be granted. 28 U.S.C.
§ 1915(e)(2)(B)(ii).
3. Plaintiff’s Remaining Claims Against
Defendant Harvey
Apart from his specific allegation that defendants Harvey and Melton prevented his transfer
to a TDOC facility, plaintiff provides no factual allegations to support his other claims against
defendant Harvey, enumerated above at pp. 9-10, both of which allege a First Amendment denial-ofaccess claim. Indeed, a plain reading of the complaint reveals that plaintiff’s denial-of-access claims
only implicate the acts and/or omissions of others at OCJ. None implicate defendant Harvey’s
personal involvement.
The law is well established that liability under §1983 cannot be premised solely on a theory
of respondeat superior. Heyerman v. County of Calhoun, 680 F.3d 642, 647 (6th Cir. 2012).
Supervisory officials are not liable in their individual capacities unless they “either encouraged the
specific incident of misconduct or in some other way directly participated in it. Heyerman, 680 F.3d
at 647. At a minimum, a plaintiff must show that the official(s) “‘at least implicitly authorized,
approved, or knowingly acquiesced in the unconstitutional conduct of the offending officers.’”
Heyerman, 680 F.3d at 647 (citation omitted). Moreover, where a state actor’s role is limited to the
“‘denial of administrative grievances, or the failure to act’ by prison officials does not subject
supervisors to liability under § 1983” in their individual capacity. Grinter v. Knight, 532 F.3d 567,
576 (6th Cir. 2008)(citation omitted). This last point of law is of particular relevance to defendant
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Harvey who, as the record shows, signed 10 of the 15 grievances plaintiff filed.6 Supervisory
officials also are not liable in their official capacity unless the alleged violation was the result of “‘a
. . . policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly
be said to represent official policy.” Radvansky v. City of Olmstead Falls, 395 F.3d 291, 311 (6th
Cir. 2005)(citation omitted).
Plaintiff does not allege, nor can it be liberally construed from the complaint, that defendant
Harvey implicitly authorized, approved, or knowingly acquiesced in the alleged acts and/or
omissions of those under her supervision at OCJ. Consequently, defendant Harvey is not liable in
her individual capacity under § 1983. Moreover, as the complaint does not mention the County of
Overton anywhere in the statement of facts, plaintiff fails to establish a causal link between the
alleged violations of his constitutional rights and any county policy and/or custom that led to those
alleged violations. Consequently, plaintiff has failed to show that defendant Harvey is liable in her
official capacity.7
As for the merits of plaintiff’s denial-of-access claims, the law is well settled that a prisoner
has a First Amendment right of access to the courts. Bounds v. Smith, 430 U.S. 817, 821-823
(1977). The right of access to the courts requires prison officials to ensure that inmates have access
to the courts that is “adequate, effective and meaningful.” Bounds, 430 U.S. at 822. However, it
is not enough for plaintiff simply to claim that he was denied access to the courts. To state a claim
on which relief may be granted, plaintiff must show that a defendant’s conduct in some way

6

The record shows that defendant Deck signed 2 of the 15 as the supervisor, and the remaining 3 (Doc. 81,
Ex. 3, pp. 28, 46, 48) were not signed by any member of the OCJ staff.
7

The Magistrate Judge notes for the record that the foregoing analysis applies equally to plaintiff’s claim
against defendant Melton.

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prejudiced the filing or prosecution of a legal matter. See Lewis v. Casey, 518 U.S. 343, 343, 352-55
(1996)).
Although the plaintiff asserts that defendant Harvey’s alleged actions/policies hindered his
access to the courts, he does not allege, nor can it be liberally construed from the complaint, that he
was prejudiced by those alleged actions/policies.8 Indeed, the complaint is devoid of any supporting
factual allegations whatsoever. Although pro se complaints are held to less stringent standards than
complaints prepared by an attorney, see Boag v. MacDougall, 454 U.S. 364, 365 (1982), the law is
well established that the courts are not willing to abrogate basic pleading essentials in pro se suits,
see Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1990). A “‘complaint must contain either direct or
inferential allegations respecting all the material elements to sustain a recovery under some viable
legal theory.’” Saltire Indus., Inc. v. Waller, Lansden, Dortch & Davis, PLLC, 491 F.3d 522, 526
(6th Cir. 2007)(italics in the original, citation omitted). Conclusory claims such as those in plaintiff’s
complaint are subject to dismissal. See Smith v. Rose, 760 F.2d 102, 106 (6th Cir. 1985).
As shown above, defendant Harvey is not liable for the alleged acts and/or omissions of
those under her supervision, nor has plaintiff shown that he was prejudiced in any way by defendant
Harvey’s alleged policies. Consequently, plaintiff’s remaining claims against defendant Harvey are
subject to sua sponte dismissal for failure to state a claim on which relief may be granted. 28 U.S.C.
§ 1915(e)(2)(B)(ii).
III. CONCLUSIONS
AND
RECOMMENDATIONS
For the reasons explained above, the Magistrate Judge RECOMMENDS that: 1) the motions
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The sole exception to this statement in the complaint occurred during the period April through July 2009
during which time plaintiff’s alleged inability to research the law led to his late filing of a motion in the state trial court.
(Doc. 1, p. 16 or 24) Defendant Harvey was the OCJ administrator from May 3, 2010 to August 31, 2014. (Doc. 93,
¶ 2, p. 1 o7 17) Therefore, this factual allegation does not pertain to her.

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for summary judgment presently before the court (Docs. 81 and 87) be GRANTED; 2) this action
be dismissed against the moving parties for failure to exhaust and for failure to state a claim on
which relief may be granted; 3) this action be DISMISSED WITH PREJUDICE; 4) dismissal of
this action COUNT AS A STRIKE under 28 U.S.C. § 1915(g); 5) acceptance and adoption of this
R&R constitute the FINAL JUDGMENT in this action; 6) any appeal NOT BE CERTIFIED as
taken in good faith pursuant to 28 U.S.C. § 1915(a)(3); 7) any pending motions be TERMINATED
AS MOOT.
Under Rule 72(b), Fed. R. Civ. P., any party has fourteen (14) days from service of this R&R
within which to file with the District Court any written objections to the proposed findings and
recommendations made herein. Any party opposing shall have fourteen (14) days from receipt of
any objections filed regarding this R&R within which to file a response to said objections. Failure
to file specific objections within fourteen (14) days of receipt of this R&R may constitute a waiver
of further appeal of this R&R. Thomas v. Arn, 474 U.S. 140, reh’g denied, 474 U.S. 1111 (1986).
ENTERED this the 8th day of July, 2015.

s/ Joe B. Brown
Joe B. Brown
United States Magistrate Judge

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