Nelson v. Lois DeBerry Special Needs Facility et al
Filing
33
REPORT AND RECOMMENDATION re 1 Complaint. The Magistrate Judge finds that the plaintiff states colorable claims against defendants McCoy, Perez, and Barneard in their individual capacity. A separate order will enter, directing service of proce ss upon these defendants. The Magistrate Judge further FINDS, however, that the allegations in the complaint fail to state a colorable claim against defendants McCoy, Perez, and Barneard in their official capacity, and therefore RECOMMENDS that th e official-capacity claims against those defendants be dismissed. The Magistrate Judge further FINDS that the complaint fails to state any claim against defendants DSNF, Bob Erwin, Dr. Bambee, Dr. OToul, Mr. Lanier, Mr. Ganaway, former DSNF Warden Jewel Steele, Deputy Warden Ryan, Corporal Campbell, C.C.O. Maxwell, Corporal Davis, and Corporal Shaver, and therefore RECOMMENDS that the complaint be dismissed as to these defendants. Signed by Magistrate Judge Joe Brown on 9/30/2013. (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
NASHVILLE DIVISION
OSWALD URBAN NELSON,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
LOIS DeBERRY SPECIAL NEEDS
FACILITY et al.,
Defendants.
Case 3:12-0795
Judge Sharp / Brown
REPORT AND RECOMMENDATION
TO: The Honorable Kevin H. Sharp
Pro se plaintiff Oswald Urban Nelson has paid in full the
filing fee in this case. By order entered August 14, 2013 (ECF
No. 28), the matter was referred to the undersigned to conduct
an
initial
review
of
the
complaint
pursuant
to
the
Prison
Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915A and 42 U.S.C.
§
1997e(c).
For
the
reasons
set
forth
below,
the
Magistrate
Judge finds that the complaint fails to state a colorable claim
against
twelve
of
the
fifteen
defendants,
and
therefore
recommends that the claims against those twelve defendants be
dismissed pursuant to the PLRA for failure to state a claim for
which relief can be granted under 42 U.S.C. § 1983. With respect
to
the
three
defendants
against
whom
the
complaint
states
a
colorable claim, the Magistrate Judge finds that the complaint
does
not
defendants,
against
state
and
those
an
official-capacity
recommends
defendants
that
be
the
claim
against
those
official-capacity
claims
dismissed,
while
the
individual-
capacity claims are permitted to proceed.
I.
Standard of Review
Under the PLRA, the district court is required to dismiss
any prisoner action against a government entity or official, or
challenging
the
prisoner’s
conditions
of
confinement,
if
the
complaint is frivolous, malicious, fails to state a claim upon
which relief can be granted, or seeks monetary relief from a
defendant immune from such relief. 28 U.S.C. § 1915A; 42 U.S.C.
§ 1997e(c). In conducting the initial review of the complaint,
the
court
must
read
the
plaintiff’s
pro
se
complaint
indulgently, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and
accept
the
plaintiff’s
allegations
as
true,
unless
they
are
clearly irrational or wholly incredible. Denton v. Hernandez,
504 U.S. 25, 33 (1992).
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
[the PLRA] 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
- 2 -
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). “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. (citing Twombly, 550 U.S. at 556).
II.
Factual Allegations
At
the
plaintiff
time
was
this
action
at
confined
was
Lois
the
filed,
M.
in
July
DeBerry
2012,
Special
the
Needs
Facility (“DSNF”) in Nashville, Tennessee. He is now at the West
Tennessee State Prison in Henning, Tennessee.
Although the exact nature and timeline of the events about
which the plaintiff complains are not entirely clear, it appears
based on a grievance attached as an exhibit to the complaint
that the plaintiff was participating in an “R-DAP” (drug and
alcohol
rehabilitation)
program
at
the
Hardeman
County
Correctional Center in Whiteville, Tennessee but was sent to the
mental-health
program
at
Charles
Bass
Correctional
Complex
(“CBCX”) because he was becoming paranoid and suffering from
other symptoms of mental illness. At some point, the plaintiff
was transferred to the DSNF but was no longer assigned to a
“mental
health
unit.”
While
there,
the
plaintiff
allegedly
reported to authorities that his cellmates were smoking crack
- 3 -
cocaine and cigarettes in their cell. Thereafter, the plaintiff
received two notes from other inmates saying they were going to
kill
him,
so
the
plaintiff
was
placed
in
“P.C.”
(presumably
protective custody or confinement).
The
plaintiff
claims
he
was
held
in
segregation
or
protective custody for two months, allegedly for his own safety
(because of the plaintiff’s having reported his cellmates for
drug use), at the direction of defendant Bob Erwin.
When the plaintiff was released from “confinement” after
two months, he was placed back in the same unit – Unit 4 – where
his former cellmates were housed and where he was supposedly in
danger.
Almost
immediately,
he
got
in
a
fight
with
another
unidentified inmate, apparently not one of his former cellmates,
and was placed back in confinement as punishment for fighting.
The plaintiff maintains that he should never have been placed
back in Unit 4, where he had had such conflicts, and that in any
event, he should be in a mental health unit.
In
his
original
complaint,
the
plaintiff
named
as
defendants the Lois M. DeBerry Special Needs Facility itself,
and
five
individuals
classification
employed
specialist;
Dr.
at
DSNF:
Bambee
Bob
(first
Erwin,
name
a
unknown
(“F/N/U”); Dr. O’Toul (F/N/U), Mental Health Doctor; Mr. Lanier
(F/N/U),
Unit
4
counselor;
and
Mr.
Ganaway
(F/N/U),
Unit
7
counselor. (ECF No. 1, at 5–6.) In an amended complaint filed in
- 4 -
September
2012,
including:
the
[former]
plaintiff
DSNF
added
Warden
nine
new
Jewel
Steele;
defendants,
Deputy
Warden
Ryan; Corporal Campbell; C.C.O. Maxwell; Officer McCoy; Officer
Perez; Dr. Barneard [sic]; Corporal Davis; and Corporal Shaver.
(ECF No. 9, at 1-2.) The plaintiff names all defendants in both
their individual and official capacities.
The plaintiff alleges that Dr. O’Toul intentionally put his
life in danger, because she has known him for many years and
knows
his
“mental
history
and
status,”
and
that
she
“conspire[ed] with other defendants to put [his] life in danger”
after the plaintiff had “confided in her and talked to her about
all the wrongful [sic] that had been done to [him] at Deberry
and Unit 4.” (ECF No. 1, at 7.)
The
plaintiff
states
that
Bob
Erwin
and
Dr.
Bambee
conspired together between April 30, 2012 and June 13, 2012 to
keep the plaintiff wrongfully in confinement (segregation) at
DSNF, and intentionally put the plaintiff “back in harm’s way”
by allowing him to be released back into Unit 4. He claims Erwin
and Bambee did not consult with Dr. O’Toul about the plaintiff’s
placement or about his mental illness, but also that they knew
about his mental history and did nothing to get the plaintiff
the proper placement, and specifically refused the plaintiff’s
request that he be placed in a mental health unit. (Id.)
The plaintiff’s claim against DSNF is premised on the fact
- 5 -
that “such things” were “allow[ed] . . . to happen on their
pro[p]erty.”
staff”
for
(Id.)
The
allowing
plaintiff
serious
also
faults
altercations
DSNF
between
“security
inmates
to
occur; and he faults DSNF “medical staff” “for not following
instructions” from Meharry Hospital’s ER upon the plaintiff’s
discharge
for
treatment
of
his
“split”
and
swollen
face
and
swollen hand on June 16, 2012. (Id.)
The plaintiff sues Mr. Lanier for intentionally putting the
plaintiff’s life in danger and “for knowing all the inmates . .
. in unit 4 didn’t like [the plaintiff] because [he] didn’t want
them to smoke in the room and because [he] wouldn’t give in to
their homosexual desires.” (ECF No. 1, at 8.) He specifically
alleges
that
Mr.
Lanier
was
aware
of
the
plaintiff’s
mental
health status, and that the plaintiff had spoken to him several
times about the plaintiff’s concerns about “guys stalking” him,
but did nothing. The plaintiff claims Mr. Lanier should have
reclassified him after “that entire officer Powell situation.” 1
(ECF No. 1, at 8.)
1
The plaintiff here is referring to an incident that is not
the subject of this complaint, but was the subject of another
federal action in which the plaintiff alleged that a corrections
officer named Powell touched him inappropriately and made sexual
advances
toward
him,
and
then
fabricated
disciplinary
infractions in retaliation for the plaintiff’s refusing to have
a sexual relationship with him. The case was dismissed on the
defendant’s
motion
for
failure
to
exhaust
administrative
remedies. Nelson v. Lois DeBerry Special Needs, No. 3:12-cv-0814
(M.D. Tenn. Dec. 20, 2012) (order of dismissal, ECF No. 42).
- 6 -
The claims against Mr. Ganaway are based on the plaintiff’s
allegations
that
Mr.
Ganaway
also
conspired
with
the
other
defendants to put the plaintiff’s life in danger, knowing about
his mental health issues and the problems he had had in Unit 4.
The plaintiff states that all the defendants knew he was
having
problems
reported
making
for
with
his
smoking
homosexual
cellmates,
crack
and
advances
on
whom
cigarettes
the
the
in
plaintiff
had
their
cell
and
but
did
not
plaintiff,
reclassify him or move him to a different unit, and then failed
to protect him when he was assaulted twice by another inmate (a
“guy who wasn’t even suppose [sic] to be on my side” (ECF No. 1,
at 17 (6/18/12 grievance)).
In
the
plaintiff
amended
states
complaint
that
he
had
filed
in
talked
September
to
CCA
2012,
Maxwell
the
about
“inmates stalking [him] and trying to suggest homosexual stuff
to
[him],”
and
talked
to
both
Maxwell
and
Lanier
about
his
cellmates smoking crack and cigarettes in the plaintiff’s cell,
but
they
disregarded
his
complaints.
(ECF
No.
8,
at
2–3.)
Maxwell, however, told the plaintiff that he was going to be
moved to Unit 7, but this never happened. The plaintiff claims
Maxwell and Lanier did not help him because he refused to “have
a low down relationship” with either of them. (Id. at 3.)
The plaintiff claims Officer McCoy “slammed the door in his
face wouldn’t let [him] eat chow” after he filed a grievance
- 7 -
about her treating him unfairly. (Id.) She was also the officer
who allegedly watched as the plaintiff was assaulted and allowed
the other inmate to find something to hit the plaintiff with,
even though the other inmate was supposed to be on a different
side of the yard. The plaintiff claims Officer McCoy did not
call a “code” when she saw the assault occurring.
Officer Perez was allegedly the other officer working that
day
and
who
allowed
the
assault
to
continue
for
30
minutes
without intervening to protect the plaintiff. The plaintiff also
claims that Officer Perez was responsible for allowing several
inmates to be on the wrong side of the yard with no supervision.
The plaintiff states that Dr. Barneard initially was not
going to send the plaintiff to the ER after the assault but then
changed his mind. The plaintiff received stitches at the ER and
pain medication. He claims that upon his return to the prison,
the medical staff, including Dr. Barneard, never provided any
follow-up care and did not allow him to have pain medication or
even ice packs for his swollen face and hand.
The
because
violated
process
plaintiff
they
the
his
are
sues
Corporal
“over
the
plaintiff’s
grievances
Campbell
grievance
due-process
and
instead
and
board”
rights
sending
Corporal
and
by
them
Davis
allegedly
failing
back
to
to
him
marked “inappropriate.”
The
plaintiff
asserts
that
- 8 -
Warden
Steele
knows
the
plaintiff’s situation and his family and that he talked to her
several times while he was in confinement. He thought she would
help him get placement in a mental-health unit but instead she
“shipped [him] off.” (ECF No. 8, at 6.) The plaintiff claims he
also talked to Deputy Warden Ryan while he was in confinement,
and that Ryan and Steele both “signed off and allowed all of
this to happen on their compound.” (ECF No. 8, at 7.)
The plaintiff alleges that the defendants all acted with
deliberate indifference to the risk of harm to him from other
inmates, and he brings claims against them under both federal
and
state
law.
He
seeks
monetary
damages
from
all
the
defendants.
III. Discussion
The plaintiff invokes the district court’s federal-question
jurisdiction
vindicate
by
bringing
alleged
suit
violations
under
of
his
42
U.S.C.
federal
§
1983
to
constitutional
rights. Section 1983 confers a private federal right of action
against
any
deprives
an
person
who,
individual
of
acting
any
under
right,
color
of
privilege
state
or
law,
immunity
secured by the Constitution or federal laws. Burnett v. Grattan,
468 U.S. 42, 44 n.3 (1984); Stack v. Killian, 96 F.3d 159, 161
(6th Cir. 1996). Thus, to state a § 1983 claim, a plaintiff must
allege two elements: (1) a deprivation of rights secured by the
Constitution and laws of the United States, and (2) that “the
- 9 -
deprivation was caused by a person acting under color of state
law.” Tahfs v. Proctor, 316 F. 3d 584, 590 (6th Cir. 2003)
(citations omitted); 42 U.S.C. § 1983.
As an initial matter, the Magistrate Judge finds that the
DeBerry
Special
Needs
Facility
is
a
building,
not
a
person
subject to liability under § 1983. Cf. Kimbrough v. Lois DeBerry
Special Needs Facility, No. 3:12–cv–782, 2012 WL 3597208, at *2
(M.D.
Tenn.
Aug.
17,
2012).
Dismissal
of
this
defendant
is
therefore appropriate under the PLRA.
Second, the Magistrate Judge finds that the complaint fails
to state a claim against any defendant in his or her official
capacity. As the Supreme Court noted in Kentucky v. Graham, 473
U.S. 159, 165–66(1985), a claim brought against a government
employee in his or her official capacity is the equivalent of a
claim brought against the governmental entity itself. The named
defendants, all of whom are employed at a state-run prison, are
presumably
state
employees,
so
the
official-capacity
suit
is
equivalent to suit against the state itself. Johnson v. Unknown
Dellatifa,
357
F.3d
539,
545
(6th
Cir.
2004).
The
plaintiff
seeks relief in the form of monetary damages only in this case.
Pursuant
to
the
Eleventh
Amendment,
the
state
is
absolutely
immune from liability for damages. The complaint therefore fails
to state a claim against any of the defendants in their official
capacity. Further, to the extent any of the defendants are not
- 10 -
state employees, the complaint fails to allege the existence of
a state- or institution-wide policy or practice that allegedly
gave rise to the plaintiff’s injuries, and for that reason too
fails to state an official-capacity claim against any of the
defendants. City of Canton v. Harris, 489 U.S. 378, 389 (1989);
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).
As for the individual-capacity claims against the natural
persons
named
purposes
of
pertinent
as
this
times
defendants,
the
review
these
under
that
color
of
Magistrate
Judge
individuals
state
law.
finds
acted
The
at
question
for
all
is
whether the allegations in the complaint, accepted as true and
construed liberally in the plaintiff’s favor, as required at
this stage of the proceedings, establish that each defendant was
responsible for depriving the plaintiff of his constitutional
rights. To establish the liability of any individual defendant,
the
plaintiff
personally
must
involved
show
in
that
the
that
particular
activities
giving
defendant
rise
to
was
the
plaintiff’s claims. Rizzo v. Goode, 423 U.S. 362, 371 (1976).
See also Heyerman v. Cnty. of Calhoun, 680 F.3d 642, 647 (6th
Cir.
2012)
(noting
that
“[p]ersons
sued
in
their
individual
capacities under § 1983 can be held liable based only on their
own unconstitutional behavior”); Murphy v. Grenier, 406 F. App’x
972, 974 (6th Cir. 2011) (“Personal involvement is necessary to
establish section 1983 liability.” (citing Gibson v. Matthews,
- 11 -
926 F.2d 532, 535 (6th Cir. 1991).
With respect to Dr. O’Toul, the plaintiff alleges only that
this doctor has known him for many years and knows his “mental
history
and
status,”
and
that
she
“conspire[ed]
with
other
defendants to put [his] life in danger.” (ECF No. 1, at 7.) The
complaint
does
plaintiff’s
believes
not
own
that
state
any
to
speculation,
Dr.
O’Toul
is
actual
indicate
involved
facts,
in
why
beyond
the
some
the
plaintiff
conspiracy
to
endanger him. In one of the plaintiff’s grievances, dated June
21,
2012,
the
plaintiff
speculates
that
Dr.
O’Toul
was
responsible for his care in the past and that she therefore
might be “responsible just as much as the other defendants.”
(ECF
No.
1,
at
20.)
The
Magistrate
Judge
finds
that
the
plaintiff’s claims against Dr. O’Toul are based on nothing but
speculation, and the factual allegations in the complaint do not
establish her personal involvement in any of the actions giving
rise to the plaintiff’s alleged injuries. The Magistrate Judge
therefore
finds
that
the
complaint
fails
to
state
a
claim
against Dr. O’Toul.
The plaintiff asserts that Bob Erwin, the classification
specialist, conspired with Dr. Bambee to keep the plaintiff in
segregation
for
intentionally
two
put
months,
the
for
plaintiff
no
valid
back
in
reason,
“harm’s
and
way”
then
by
releasing him from confinement back into the unit where he was
- 12 -
allegedly at risk of harm from the inmates he had reported for
smoking
crack
and
cigarettes
in
his
cell.
He
faults
these
defendants, and Dr. Bambee in particular, for not consulting
with Dr. O’Toul about his mental health needs, and for refusing
the plaintiff’s request to be housed in a mental health unit.
The plaintiff does not indicate which of his constitutional
rights this conduct might have violated. With respect to the
placement
in
confinement,
the
law
is
clear
that
continuous
administrative segregation for a significant period of time may
constitute an “atypical and significant hardship on the inmate
in relation to the ordinary incidents of prison life” that may
deprive the inmate of a legally cognizable liberty interest.
Sandin v. Conner, 515 U.S. 472, 484 (1995). Cf. Harden–Bey v.
Rutter, 524 F.3d 789, 792–93 (6th Cir. 2008) (finding a question
of fact as to whether an “indefinite” placement that had already
lasted
three
years
implicated
a
protected
liberty
interest);
Shoats v. Horn, 213 F.3d 140, 144 (3rd Cir. 2000) (finding that
the plaintiff’s confinement for eight years in administrative
segregation
had
imposed
a
significant
hardship
on
him
in
relation to the ordinary incidents of prison life of the type
that
implicated
his
due-process
interests).
Short
periods
of
confinement in segregation, however, are deemed not to pose an
“atypical and significant hardship” and therefore do not violate
any cognizable rights. See, e.g., Bennett v. Smith, 110 F. App’x
- 13 -
633, 634 (6th Cir. 2004) (prisoner’s placement in administrative
segregation
for
68
days
protective
custody
significant
hardship,
process
App’x
claim
143
detention
did
under
(6th
§
response
to
not
thus
did
his
constitute
and
Cir.
while
in
1983);
2002)
not
Merchant
give
v.
and
rise
to
Hawk-Sawyer,
(16-month
stay
charges
were
disciplinary
for
atypical
an
request
in
a
37
due
F.
administrative
pending
did
not
violate Eighth Amendment; and a 21-month confinement in special
housing unit did not violate Fourteenth Amendment). Accordingly,
the
Magistrate
detention
in
plaintiff’s
atypical
liberty
and
Judge
finds
protective
due-process
in
custody
rights,
significant
interest
that
plaintiff’s
does
because
hardship,
being
the
and
returned
to
not
it
the
two-month
implicate
did
not
plaintiff
the
general
the
pose
an
had
no
prison
population.
Nor did the confinement in protective custody implicate the
plaintiff’s
rights
under
the
Eighth
Amendment,
because
the
plaintiff does not allege that he was deprived of “the minimal
civilized measure of life's necessities.” Rhodes v. Chapman, 452
U.S. 337, 347 (1981). He does not allege that he was denied
basic
human
needs,
such
as
water,
food,
shelter,
medical
treatment or personal safety. See Harden–Bey, 524 F.3d at 795
(“‘Because placement in segregation is a routine discomfort that
is a part of the penalty that criminal offenders pay for their
- 14 -
offenses
against
society,
it
is
insufficient
to
support
an
Eighth Amendment Claim.’” (quoting Murray v. Unknown Evert, 84
F. App’x 553, 556 (6th Cir. 2003)); Merchant, 37 F. App’x at 145
(the plaintiff failed to state an Eighth Amendment claim
where
he “presented no evidence that he was denied basic human needs
or was otherwise subjected to cruel and unusual punishment by
virtue
of
the
conditions
in
administrative
detention
or
disciplinary segregation”).
The plaintiff seems also to be suggesting that defendants
Erwin and Bambee failed to protect him from assault by placing
him (or approving his placement) back in Unit 4, the same unit
where the inmates who supposedly posed a threat to him were
still
an
housed. There is no question that prison officials have
affirmative
duty
under
the
Eighth
Amendment
to
protect
inmates from violence perpetrated by other prisoners. Farmer v.
Brennan, 511 U.S. 825, 833 (1994). However, as the Sixth Circuit
has recognized, “not all injuries suffered by an inmate at the
hands of another prisoner result in constitutional liability for
prison officials under the Eighth Amendment.” Wilson v. Yaklich,
148
F.3d
596,
Amendment
protect,
claim
a
600
(6th
premised
Cir.
1998).
on
prison
prisoner-plaintiff
must
To
establish
officials’
establish
that
an
Eighth
failure
the
to
prison
officials acted with “deliberate indifference to the health or
safety of the inmate.” Id. at 601 (citing Farmer, 511 U.S. at
- 15 -
834). The plaintiff must also “allege that he has suffered or is
threatened
with
suffering
actual
harm
as
a
result
of
the
defendants' acts or omissions.” Id.
The
Supreme
indifference
in
Court
Farmer.
clarified
A
claim
the
of
test
for
deliberate
deliberate
indifference
consists of both objective and subjective components. Farmer,
511 U.S. at 834; Hudson v. McMillian, 503 U.S. 1, 8 (1992). The
plaintiff
arguably
alleges
facts
that
satisfy
the
objective
prong: that he was assaulted by a fellow inmate and suffered a
serious enough injury that he was transported to the ER and
received stitches in his face.
To satisfy the subjective prong of the Farmer test, the
plaintiff
must
show
that
the
defendants
“kn[ew]
of
and
disregard[ed] an excessive risk to inmate health or safety; the
official[s] must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists,
and [they] must also draw the inference.” Farmer, 511 U.S. at
837. However, “the failure to alleviate a significant risk that
an official should have perceived but did not, while no cause
for
commendation,”
cannot
be
the
basis
of
a
deliberate
indifference claim. Id. at 838. At the same time, a prisoner is
not required to show that officials had an actual intent to harm
him. Farmer, 511 U.S. at 836.
In
this
case,
the
plaintiff
- 16 -
fails
to
allege
facts
establishing the subjective component. The plaintiff had been
out
of
Unit
4
for
two
months.
In
addition,
the
perceived
potential risk of harm to the plaintiff allegedly came from the
plaintiff’s prior cellmates, whom the plaintiff had reported for
smoking crack. The inmate who assaulted the plaintiff was not
among the individuals who supposedly posed a known threat. In
other words, even if the decision to place the plaintiff back in
Unit 4 might have been ill-advised, there is no suggestion that
the defendants actually knew or even should have known that the
inmate who allegedly assaulted the plaintiff posed a threat to
him.
The
plaintiff
therefore
Erwin
or
Bambee
to
the
defendants
fails
based
to
on
state
an
a
claim
alleged
against
failure
to
protect him.
With
regard
defendants’
disregard
plaintiff’s
of
his
classification,
request
for
a
and
the
particular
classification and to be placed in a particular unit, the law is
clear that a prisoner does not have a constitutional right to
placement in any particular prison, Olim v. Wakinekona, 461 U.S.
238, 245 (1983), or to a particular security classification.
Montanye
v.
Haymes,
427
U.S.
236,
242
(1976).
Because
the
plaintiff does not have a constitutional right to a particular
placement or classification, he fails to state a claim based on
the defendants’ refusal to send him to a particular prison or
unit. The plaintiff’s claims against former DSNF Warden Jewel
- 17 -
Steele and Deputy Warden Ryan, also based on their failure to
ensure the plaintiff’s placement in a mental-health unit are
subject to dismissal on the same basis.
Insofar as the plaintiff may seek to state a claim against
any of the defendants based on deliberate indifference to his
serious mental-health needs under Estelle v. Gamble, 429 U.S. 97
(1976), he fails to do so. He does not allege that he does not
receive appropriate treatment for his mental health needs; he
simply believes he would do better being placed in a mentalhealth unit.
The plaintiff’s claim against Mr. Lanier is likewise based
on Mr. Lanier’s failure to reclassify him after “that entire
officer Powell situation.” (ECF No. 1, at 8.) In that regard,
the plaintiff states only that Lanier was aware of his mental
health status, knew that the inmates on Unit 4 disliked the
plaintiff, and should have reclassified him. Again, there are no
allegations
that
Lanier
had
any
reason
to
know
that
the
plaintiff would be assaulted by the particular inmate he fought
with after being returned to Unit 4, and the plaintiff had no
constitutional
right
to
a
particular
classification
or
placement. Further, generally speaking, the allegations against
Lanier are simply too vague and conclusory to state a claim
against him under § 1983.
With respect to Mr. Ganaway, the plaintiff alleges in a
- 18 -
wholly conclusory fashion that this defendant conspired with the
others to put the plaintiff’s life in danger by placing him back
in Unit 4. There is no indication as to how or why Mr. Ganaway,
the Unit 7 confinement counselor, had any input in the decision
to send the plaintiff back to Unit 4. The Magistrate Judge finds
that
the
plaintiff’s
factual
allegations
do
not
state
a
plausible claim for relief against Mr. Ganaway.
The plaintiff’s claim against CCA Maxwell is based on the
plaintiff’s allegations that he had told Maxwell about other
inmates’ “stalking” him and “trying to suggest homosexual stuff”
to
him,
and
about
his
cellmates’
smoking
crack,
but
Maxwell
allegedly disregarded the plaintiff’s complaints. Maxwell also
told the plaintiff he would be moved to Unit 7, but then failed
to make this happen because the plaintiff refused to have a “low
down” relationship with him. (ECF No. 8, at 3.)
Again,
the
plaintiff
has
no
constitutionally
protected
interest in placement in any particular prison or unit. He does
not
allege
that
he
was
actually
the
victim
of
a
homosexual
assault or even inappropriate touching. Again, the Magistrate
Judge finds that the plaintiff’s allegations fail to state a
colorable claim against defendant Maxwell.
The
plaintiff
alleges
that
Officers
McCoy
and
Perez
witnessed the assault(s) on the plaintiff by another prisoner
after he was released from confinement and placed back in Unit
- 19 -
4, and that they did not call a “code” or otherwise intervene to
protect the plaintiff. (ECF No. 8, at 3.) The plaintiff alleges
that
the
fight
continued
for
a
substantial
period
of
time
without either officer’s taking any action. As set forth above,
the plaintiff does have a right under the Eighth Amendment to be
protected from assaults by other inmates, and his allegations
are sufficient to indicate that these defendants, by allegedly
witnessing the assault but failing to take any action to stop
it, were deliberately indifferent to the plaintiff’s safety and
welfare. The Magistrate Judge finds that the complaint states a
colorable claim under the Eighth Amendment against defendants
McCoy and Perez.
The plaintiff also claims that the prison medical staff,
specifically Dr. Barneard, finally decided to send the plaintiff
to
the
ER
stitches
on
after
the
his
face.
assault,
where
Thereafter,
the
plaintiff
however,
received
according
to
the
plaintiff, Dr. Barneard refused to provide any follow-up care,
including
pain
medication
or
ice
for
the
swelling,
and
thus
acted with deliberate indifference to the plaintiff’s serious
medical needs. The Magistrate Judge finds that it is a close
call as to whether the plaintiff’s allegations establish that
his
medical
need
was
sufficiently
serious
to
implicate
the
Eighth Amendment, but at this stage in the proceedings concludes
that the plaintiff states a colorable claim against Dr. Barneard
- 20 -
under § 1983.
The only allegations in the amended complaint concerning
Corporal Campbell and Corporal Davis are that these officers are
“over the grievance board,” and both of them allegedly violated
the
plaintiff’s
Fourteenth
marking
the
plaintiff’s
sending
them
back
to
Amendment
due-process
grievances
him
and
by
as
rights
“inappropriate”
doing
nothing
about
by
and
his
complaints. These allegations do not state a claim for relief,
because there is no constitutionally protected due-process right
to
an
effective
Knight,
532
F.3d
administrative
officials
does
prison
567,
grievance
576
grievances
not
(6th
or
subject
procedure.
Cir.
the
failure
supervisors
Grinter
v.
(“The
2008)
See
‘denial
of
to
to
act’
by
liability
prison
under
§
1983.” (quoting Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir.
1999)); Young v. Gundy, 30 F. App’x 568, 569–70 (6th Cir. 2002)
(grievance appeal does not implicate the First Amendment right
to access courts because there is no constitutional right to an
effective prison grievance procedure); Lyle v. Stahl, 156 F.3d
1230 (Table), 1998 WL 476189, at *1 (6th Cir. Aug. 3, 1993)
(finding
the
plaintiff’s
district
complaint
court
based
on
had
a
properly
prison
dismissed
official’s
the
improper
rejection of a prison grievance as frivolous, because “there is
no
inherent
grievance
constitutional
procedure”).
The
right
to
Magistrate
- 21 -
an
Judge
effective
finds
prison
that
the
complaint fails to state a colorable claim under § 1983 against
defendants Campbell and Davis based on their allegedly improper
refusal to process the plaintiff’s grievances.
The plaintiff claims that Corporal Shaver is the officer
who told him he was being sent to confinement after a fight, but
it is not clear to which fight the plaintiff is referring. (ECF
No. 8, at 7.) The plaintiff also contends that Corporal Shaver
“is the one who sent [him] to [segregation] and left [him] there
for 2 months.” (ECF No. 8, at 8.) Again, a two-month stay in
protective
custody
does
not
implicate
the
plaintiff’s
due-
process rights under the Fourteenth Amendment, or his right to
be
free
from
cruel
and
unusual
punishment
under
the
Eighth
Amendment, absent allegations that he was also deprived of such
basic
necessities
as
food,
shelter,
and
clothing.
The
allegations in the complaint fail to state a colorable claim
against Corporal Shaver.
IV.
Conclusion and Recommendation
For
finds
the
that
set
A
the
forth
plaintiff
McCoy,
defendants
capacity.
reasons
Perez,
separate
herein,
states
and
order
colorable
Barneard
will
the
enter,
in
Magistrate
claims
their
directing
Judge
against
individual
service
of
process upon these defendants.
The
Magistrate
Judge
further
FINDS,
however,
that
the
allegations in the complaint fail to state a colorable claim
- 22 -
against defendants McCoy, Perez, and Barneard in their official
capacity, and therefore RECOMMENDS
that the official-capacity
claims
dismissed.
against
those
Judge further FINDS
defendants
be
The
Magistrate
that the complaint fails to state any claim
against defendants DSNF, Bob Erwin, Dr. Bambee, Dr. O’Toul, Mr.
Lanier, Mr. Ganaway, former DSNF Warden Jewel Steele, Deputy
Warden Ryan, Corporal Campbell, C.C.O. Maxwell, Corporal Davis,
and Corporal Shaver, and therefore RECOMMENDS that the complaint
be dismissed as to these defendants.
ANY OBJECTIONS to this Report and Recommendation must be
filed
with
the
Clerk
of
Court
within
fourteen
(14)
days
of
service of the Report and Recommendation upon the party and must
state with particularity the specific portions of this Report
and Recommendation to which objection is made. Failure to file
written objections within the specified time can be deemed a
waiver
of
the
right
to
appeal
the
district
court’s
order
regarding the Report and Recommendation. See Thomas v. Arn, 474
U.S. 140, 147–50 (1985) (affirming the appellate court’s holding
that
failure
to
file
an
objection
to
the
magistrate
judge’s
report constitutes a waiver); Cowherd v. Million, 380 F.3d 909,
912 (6th Cir. 2004).
JOE B. BROWN
United States Magistrate Judge
- 23 -
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