Roberts et al v. State of Tennessee et al

Filing 168

REPORT AND RECOMMENDATION: For the reasons stated above, the undersigned Magistrate Judge RECOMMENDS that the two subject motions to dismiss (Docket Entry Nos. 85 and 89 ) be GRANTED and that the complaint be DISMISSED. If this report and recom mendation is accepted, the undersigned further RECOMMENDS that all pending motions be DENIED as MOOT. Signed by Magistrate Judge John S. Bryant on 2/6/13. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(tmw)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
CHARLES H. ROBERTS, et al.,
Plaintiffs,
v.
DERRICK D. SCHOFIELD, et al.,
Defendants.

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NO. 3:11-1127
Judge Sharp/Bryant

TO: The Honorable Kevin H. Sharp
REPORT AND RECOMMENDATION
Defendants Derrick Schofield, Ruben V. Hodge, William
Calhoun, Henry Steward and Brenda Jones have filed their motion to
dismiss (Docket Entry No. 85).

As grounds, defendants argue that

the claims in the complaint have been rendered moot, the complaint
fails to state a claim upon which relief can be granted, and that
the complaint should be dismissed for improper venue.

Defendant

Melvin Tirey has also filed his motion to dismiss for mootness
(Docket Entry No. 89).

Plaintiffs have filed their response in

opposition (Docket Entry Nos. 93 and 94).
For the reasons stated below, the undersigned Magistrate
Judge recommends that defendants’ motions to dismiss be granted and
the complaint dismissed.
Statement of the Case
Plaintiffs Charles H. Roberts and Marshall H. Murdock,
prisoners who are proceeding pro se, have filed their complaint
pursuant to 42 U.S.C. § 1983 alleging that defendants have violated
their constitutional right to free exercise of their religion,

Judaism, by failing to serve proper Kosher meals and by refusing to
allow them to engage in certain other practices and observances
that plaintiffs claim are essential to their religious faith.
Named as defendants are Derrick Schofield, Commissioner of the
Tennessee Department of Corrections, Henry Steward, Warden of the
Northwest Correctional Complex (“NWCX”) where defendants were
confined, Brenda Jones, Deputy Warden at NWCX, Melvin Tirey,
Associate Warden of Operations at NWCX, Ruben Hodge, Assistant
Commissioner

for

Operations

of

the

Tennessee

Department

of

Corrections, and William Calhoun, Unit Manager at NWCX (Docket
Entry No. 12 at 4-5, 9-10). Plaintiffs seek only injunctive relief
as a remedy. (Id. at 8).
Analysis
The NWCX defendants.

Defendants Steward, Jones, Tirey,

and Calhoun, according to the complaint, are employees of the
Tennessee

Department

of

Corrections

assigned

to

NWCX

in

Tiptonville, Tennessee, where plaintiffs were confined when this
lawsuit was commenced.

The record reflects that plaintiff Roberts

has been transferred to the Charles Bass Correctional Complex in
Nashville (Docket Entry No. 37) and that plaintiff Murdock has been
transferred to the Riverbend Maximum Security Institution (“RMSI”)
in Nashville (Docket Entry No. 11).

Defendants Steward, Jones,

Tirey, and Calhoun have moved for dismissal of the complaint
against them on grounds of mootness, since plaintiffs Roberts and

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Murdock are no longer confined at NWCX where these defendants are
assigned, and, therefore, these defendants lack the ability to
provide the prospective injunctive relief that plaintiffs seek. As
authority

for

their

motion,

these

defendants

cite

Dellis

v.

Corrections Corporation of America, 257 F.3d 508 (6th Cir. 2001) and
Kensu v. Haigh, 87 F.3d 172 (6th Cir. 1996).

Both of these cases

provide that claims for declaratory and injunctive relief in
actions

against

prison

officials

are

moot

when

the

inmate

plaintiffs are no longer incarcerated in the prison employing the
defendant officials.

Dellis, 257 F.3d at 510 n. 1; Kinsu, 87 F.3d

at 175.
In their response in opposition, plaintiffs argue that
their case against the NWCX defendants is not moot because they are
subject

to

the

exception

to

the

mootness

rule

for

alleged

constitutional violations that are “capable of repetition yet
Oliver v. Scott. 276 F.3d 736, 741 (5th Cir.

evading review.”

2002); Scott v. District of Columbia, 139 F.3d 940, 942 (D.C. Cir.
1998). However, the Supreme Court has held that for this exception
to the rule of mootness to apply, “there must be a ‘reasonable
expectation’

or

a

‘demonstrated

probability’

that

the

same

controversy will recur involving the same complaining party.”
Murphy v. Hunt, 455 U.S. 478, 482 (1982) (citing Weinstein v.
Bradford, 423 U.S. 147, 149 (1975).
The undersigned finds that plaintiffs Roberts and Murdock

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have failed to show a “demonstrated probability” or a “reasonable
expectation” that either of them would be transferred back to NWCX
for further incarceration there.

In fact, this record is wholly

silent regarding transfer policies within the Tennessee Department
of Corrections.

Therefore, the “capable of repetition yet evading

review” exception to the rule is not shown to apply here, and
plaintiffs’ claims against the NWCX defendants are subject to
dismissal for mootness.
Defendants Schofield and Hodge. Defendants Schofield and
Hodge

are

Operations,

the

Commissioner

respectively,

and

for

Assistant

the

Commissioner

Tennessee

Department

for
of

Corrections. They seek dismissal of the complaint against them for
failure to state a claim.

The allegation against defendant Hodge

is contained in a single sentence in the complaint, as follows:
“Ruben Hodge is the Assistant Commissioner for Operations for the
TDOC and as such is responsible and has the authority to enforce
rules and regulations within the TDOC and has the authority to
allow Jewish inmates to hold and participate in a Seder service in
keeping with their religious relieves (sic) and practices; that
Kosher food be allowed to be brought in for Seder meals.”
Entry No. 12 at 7).

(Docket

Other than identifying defendant Schofield as

the Commissioner of the Tennessee Department of Corrections on page
4 of the complaint, the complaint contains no substantive

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allegation against defendant Schofield at all (Docket Entry No. 12
at 4).
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.
v. Iqbal, 556 U.S. 662, 678 (2009).

Ashcroft

This requirement of accepting

the truth of the complaint’s factual allegations does not apply to
legal conclusions, however, even where such conclusions are couched
as factual allegations.

Id.

Although Federal Rule of Civil

Procedure 8(a)(2) requires merely “a short and plain statement of
the claim,” the plaintiff must allege enough facts to make the
claim plausible. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556
(2007).

“The factual allegations, assumed to be true, must do

more than create speculation or suspicion of a legally cognizable
cause of action; they must show entitlement to relief.”

League of

United Latin American Citizens v. Bredesen, 500 F.3d 523, 527 (6th
Cir. 2007).
While a pro se complaint is “to be liberally construed”
and “must be held to less stringent standards than formal pleadings
drafted by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1996)), “basic
pleading essentials” still apply.

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A plaintiff pursuing a 42 U.S.C. § 1983 claim must allege
that a defendant was personally involved in some manner in the
alleged unconstitutional activity described in the complaint.
Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984).
cannot

be

held

liable

under

§

1983

solely

on

Supervisors

the

basis

of

respondeat superior, that is solely for a supervisory position.
Monell v. New York City Department of Social Services, 436 U.S.
658, 694 (1978).

A plaintiff must allege that the supervisor

personally participated in the alleged wrongdoing, Wilson v. Beebe,
612 F.2d 275, 276 (6th Cir. 1980), and liability under § 1983 must
be based on active unconstitutional behavior and cannot be based
upon “a mere failure to act.”

Shehee v. Luttrell, 199 F.3d 295,

300 (6th Cir. 1999).
The allegation in the complaint against defendant Hodge
states merely that he “has the authority” to enforce rules and
regulations within the TDOC and “has the authority” to allow Jewish
inmates to practice various observances related to their religion.
In substance, plaintiffs’ claim against defendant Hodge is based
upon “a mere failure to act,” that is, that he failed to exercise
his authority to change TDOC practices with regard to the religious
observances that plaintiffs seek.

With respect to defendant

Schofield, the complaint fails to mention him at all, and therefore
wholly

fails

to

state

a

plausible

claim

against

him.

The

undersigned therefore finds that the complaint fails to state a

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claim against defendants Schofield and Hodge upon which relief can
be granted.
RECOMMENDATION
For the reasons stated above, the undersigned Magistrate
Judge RECOMMENDS that the two subject motions to dismiss (Docket
Entry Nos. 85 and 89) be GRANTED and that the complaint be
DISMISSED.

If this report and recommendation is accepted, the

undersigned further RECOMMENDS that all pending motions be DENIED
as MOOT.
Under Rule 72(b) of the Federal Rules of Civil Procedure,
any party has fourteen (14) days from service of this Report and
Recommendation in which to file any written objections to this
Recommendation, with the District Court.

Any party opposing said

objections shall have fourteen (14) days from receipt of any
objections filed in this Report in which to file any responses to
said objections.

Failure to file specific objections within

fourteen (14) days of receipt of this Report and Recommendation can
constitute a waiver of further appeal of this Recommendation.
Thomas v. Arn, 474 U.S. 140 (1985), reh’g denied, 474 U.S. 1111
(1986).
ENTERED this 6th day of February 2013.
s/ John S. Bryant
JOHN S. BRYANT
United States Magistrate Judge

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