Turner v. Welkal et al

Filing 87

REPORT AND RECOMMENDATION: Magistrate Judge Bryant recommends that the MOTION to Dismiss filed by the DCSO Defendants 44 be Granted in part and Denied in part. Signed by Magistrate Judge John S. Bryant on 6/27/13. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt)

United States District Court
For the Middle District of Tennessee
Nashville Division
ANTHONY RAY TURNER,

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Plaintiff,
v.
DAN WEIKAL, et al.,
Defendants.
TO:

Case No. 03:12-cv-00915
Judge Trauger/Bryant
Jury Demand

The Honorable Judge Aleta A. Trauger

Report and Recommendation
Defendants Dan Weikal, K. Cox, Granvisse Earl-Young,
Pam Hale, Sylvia Gray, Henry Lehman, Joshua Bone, Clarence
Crawley, Thomas, Jonathan Craft, Byron Grizzle, Lynn Norris,
Tony M. Wilkes, and Joshua Stagg, collectively the Davidson
County Sheriff’s Office Defendants (“DCSO Defendants”), filed a
motion and supporting memorandum on December 3, 2012 to dismiss
Plaintiff’s claims against them for failure to state a claim,
pursuant to Federal Rule of Civil Procedure 12(b)(6).
Entry Nos. 44, 45).

(Docket

Plaintiff filed a motion and supporting

memorandum in opposition to the DCSO Defendants’ motion to
dismiss on February 4, 2013.

(Docket Entry Nos. 75, 76).

For the reasons stated below, the undersigned
Magistrate Judge recommends that DCSO Defendants’ motion to
dismiss be granted in part and denied in part.
1

I.

Statement of the Case

Plaintiff Ray Turner, a prisoner proceeding pro se and
in forma pauperis, filed a complaint on September 6, 2012.
(Docket Entry No. 1).

Plaintiff alleged he was in the custody

of the Davidson County Sherriff’s Department during the duration
of the alleged facts.

He is also a practicing Muslim.

Plaintiff’s factual allegations contain four primary
categories of incidents.

First, Plaintiff alleges that he was

not permitted to pray in the manner his faith dictates on at
least three occasions, nor could he gather with other Muslims
during the month of Ramadan.

Second, Plaintiff alleges that he

was not provided the correct religious diet at times during his
detention.

On one occasion, Plaintiff alleges he did not eat

for a period of twenty-four hours because he was not permitted
by his faith to eat the food served by the correction officers
and food providers.

Third, Plaintiff alleges religious

materials were removed from his room during two separate
occasions.

His hardback Qur’an was removed on one occasion, and

four prayers written on two pieces of paper were removed on
another.

Fourth, Plaintiff alleges he was retaliated against by

corrections officers due to his Muslim faith and grievances
filed by the Plaintiff against them.

2

Additionally, several miscellaneous causes of action
are alleged:

racial discrimination resulting from special

treatment of Caucasian inmates; violations of his Eighth
Amendment right to be free from cruel and unusual punishment
resulting from overcrowding; inadequacy of the law library
resulting from denial of requests for legal research materials
and books, pages, and materials missing from the library; and,
abuse of the prisoner grievance system resulting from improper
dealings with some of Plaintiff’s grievances, others that were
filed became missing, and one instance of an improper delay in
receiving a response to a grievance.
Plaintiff brings each claim against various DCSO
Defendants.

The District Court granted Plaintiff’s request to

proceed in forma pauperis and undertook a frivolity review of
Plaintiff’s complaint pursuant to 28 U.S.C. § 1915A.
Entry No. 6).

(Docket

The Court found that Plaintiff made nonfrivolous

claims concerning his First Amendment right to free exercise of
religion and the Religious Land Use and Institutionalized
Persons Act (“RLUIPA”).

(Docket Entry No. 6).

DCSO Defendants

have now filed this motion to dismiss on the following grounds:
qualified immunity; failure to state a claim concerning
violations of Plaintiff’s First Amendment rights and RLUIPA;
failure to allege facts against particular defendants sufficient
to state a claim; and, failure to serve process under Federal
3

Rules of Civil Procedure 12(b)(4), (5).

(Docket Entry Nos. 44,

45).

II.

Standard of Review

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, 278 (2009).

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, not merely
possible.
(2007).

Bell Atlantic Corp. v. Twombley, 550 U.S. 644, 556
He must plead well enough so that his complaint is more

than “a formalistic recitation of the elements of a cause of
action.”

Id. at 555.

“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 Am. Citizens v. Bredesen,

500 F.3d 523, 527 (6th Cir. 2007).

4

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
(1976)), “basic pleading essentials” still apply.
Brown, 891 F.2d 591, 594 (6th Cir. 1990).

See Wells v.

Moreover, “[d]istrict

courts are not required to conjure up questions never squarely
presented to them or to construct full blown claims from
sentence fragments.

To do so would ‘require . . . [the courts]

to explore exhaustively all potential claims of a pro se
plaintiff, . . . [and] would . . . transform the district court
from its legitimate advisory role to the improper role of
advocate seeking out the strongest arguments and most successful
strategies for a party.’” Dixie v. Ohio, 2008 WL 2185487, at *1
(N.D. Ohio, May 23, 2008) (quoting Beaudett v. City of Hampton,
775 F.2d 1274, 1278 (4th Cir. 1985)).
The court must determine in ruling on a motion to
dismiss only whether “the claimant is entitled to offer evidence
to support the claims,” not whether a plaintiff can ultimately
prove the facts alleged.

Swierkiewicz v. Sorema N.A., 534 U.S.

506, 511 (2002) (quoting Scheuer v. Rodes, 416 U.S. 232, 236
(1974)).

“Indeed it may appear on the face of the pleadings

that a recovery is very remote and unlikely but that is not the
test.”

Scheuer, 416 U.S. at 236.
5

“Rather, challenges to the

merits of a plaintiff’s claim should be “dealt with through
summary judgments under Rule 56.”

Swierkiewicz, 534 U.S. at

514.

III.

Analysis

a. Qualified Immunity Defense
DCSO defendants have raised the defense of qualified
immunity.

The Supreme Court recently reiterated, “Qualified

immunity shields government officials from civil damages
liability unless [1] the official violated a statutory or
constitutional right that [2] was clearly established at the
time of the challenged conduct.”

Reichle v. Howards, 132 S.Ct.

2088, 2093 (2012) (citation omitted).

Without deciding whether

the right exists at all, a determination that the right was not
“clearly established” is sufficient to find the existence of
qualified immunity.
223, 236 (2009)).

Id. (citing Pearson v. Callahan, 555 U.S.
Further, “[t]o be clearly established, a

right must be sufficiently clear that every reasonable official
would have understood that what he is doing violates that right.
In other words, existing precedent must have placed the
statutory or constitutional question beyond debate.”

Id.

(quotations and citations omitted).
However, the issue at hand is whether consideration of
qualified immunity is premature.

See Grose v. Caruso, 284 F.
6

Appx. 279, 283 (6th Cir. 2008).

Generally, qualified immunity

is the basis for a summary judgment motion pursuant to Federal
Rule of Civil Procedure 56, not a dismissal under Federal Rule
of Civil Procedure 12(b)(6) for failure to state a claim.

Id.

at 283 (citing Saucier v. Katz, 533 U.S. 194 (2001), West v.
Atkins, 487 U.S. 42 (1988), Perez v. Oakland County, 466 F.3d
416 (6th Cir. 2006), and Adams v. Metiva, 31 F.3d 375, 387 (6th
Cir. 1994)).

The rationale for the existence of qualified

immunity is “[t]o avoid imposing needless discovery costs upon
government officials,” so determining whether the immunity
applies “must be made at an early stage in the litigation.”
Vaughn v. U.S. Small Bus. Admin., 65 F.3d 1322, 1326 (6th Cir.
1995) (citing Harlow v. Fitzgerald, 457 U.S. 800, 816-818 (1982)
and Mitchell v. Forsyth, 472 U.S. 511, 526 (1987)).

At the same

time, the determination of qualified immunity “is usually
dependent on the facts of the case, and, at the pleadings stage
of a litigation, there is scant factual record available to the
court.”

Oshop v. Tenn. Dept. of Children’s Services, No. 3:09-

cv-0063, 2009 WL 1651479(M.D. Tenn. June 10, 2009) (quoting
Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001); Hammett
v. Okla. Dept. of Mental Health and Substance Abuse Serv., 153
F.3d 727, 727 (10th Cir. 1998)).

Since plaintiffs are not

required to anticipate a qualified immunity defense in their
pleadings, Vaughn, 35 F.3d at 1326; Oshop, 2009 WL 1651479, at
7

*7, and since at this stage of the litigation the exact contours
of the right at issue—and thus the degree to which it is clearly
established—are unclear, Grose, 248 F. Appx. at 283; Oshop, 2009
WL 1651479, at *7, the Sixth Circuit advises that qualified
immunity should usually be determined pursuant to a summary
judgment motion rather than a motion to dismiss.

See Oshop,

2009 WL 1651479, at *7 (“Indeed, consideration of a qualified
immunity defense is much more appropriate once the plaintiff has
had the chance to supplement his allegations with more detailed
facts ascertained through discovery” (quotations omitted));
McCombs v. Granville Exempted Village School Dist., No. 2:07-cv00495, 2009 WL 467066, at *7 (Feb. 24, 2009 S.D. Ohio) (holding
that on a motion to dismiss “[i]t would be premature to grant
dismissal based on qualified immunity” where the factual
allegations of a plaintiff’s complaint, though scarce,
sufficiently alleged a violation of a constitutional right
(citations omitted)).
Considering the factual allegations that Plaintiff has
set forth, the undersigned finds it premature for DCSO
Defendants to be granted qualified immunity.

Therefore,

concerning the affirmative defense of qualified immunity, the
undersigned Magistrate Judge would recommend denial of the DCSO
Defendants’ motion to dismiss, without prejudice to the
affirmative defense being raised again at a later time.
8

b. Failure to State a Claim with Respect to Violations of
Plaintiff’s First Amendment Rights and RLUIPA
DCSO Defendants argue that Plaintiff’s allegations are
insufficient to state a claim for violations of Plaintiff’s
constitutional religious freedoms under § 1983 and statutory
rights under RLUIPA.

As noted above, Plaintiff’s claim was

screened in accordance with 28 U.S.C. § 1915A by the District
Court after it granted Plaintiff’s motion to proceed in forma
pauperis.

(Docket Entry No. 6, at 3).

Section 1915A(b) of

United States Code Title 28 states, “On review, the court shall
identify cognizable claims or dismiss the complaint, or any
portion of the complaint, if the complaint--(1) is frivolous,
malicious, or fails to state a claim upon which relief may be
granted.”

The standard used to determine whether a claim is

subject to dismissal pursuant to Federal Rule of Civil Procedure
12(b)(6) is the same standard used to evaluate a claim under 28
U.S.C. § 1915A(b)(1).
(6th Cir. 2010).

Hill v. Lappin, 630 F.3d 468, 470-471

Judge Trauger explicitly found, “[T]he

plaintiff’s Section 1983 and RLUIPA claims . . . survive [the 28
U.S.C. § 1915A] required screening of pro se, in forma pauperis
prisoner complaints.”

(Docket Entry No. 6, at 3).

While the

DCSO Defendants argue that Plaintiff’s claims are defeated by
the documents which he attached to his complaint, relying in
9

particular on the unsworn responses to Plaintiff’s grievances as
proof that their actions were justified by the facts and
concerns cited therein, such argument is plainly misplaced at
the pleading stage (even if supported by competent proof), where
the allegations supporting Plaintiff’s § 1983 claim are presumed
true en route to a determination of whether he is entitled to
offer proof in support of his claims.

In short, it would be

premature on this motion to determine as a matter of law whether
defendants’ actions substantially burdened the exercise of
Plaintiff’s religion in light of the justification for those
actions referenced in Defendants’ memorandum; any such
determination should be made upon the proofs at summary
judgment.
However, the scope of RLUIPA is limited by that
statute.

42 U.S.C. § 2000cc-1(b).

RLUIPA was enacted by

Congress under Spending Clause and Commerce Clause authority.
Sossamon v. Texas, 131 S. Ct. 1651, 1656 (2011).
statute only applies when:

Therefore, the

“(1) [A] substantial burden is

imposed in a program or activity that receives Federal financial
assistance; or (2) [a] substantial burden affects, or removal of
that substantial burden would affect, commerce with foreign
nations, among the several States, or with Indian tribes.”
U.S.C. § 2000cc-1(b).

10

42

Defendants argue that there is no violation of RLUIPA
plausibly alleged in the complaint since that statute does not
allow a private right of action against government officials in
their individual capacities.

While the Sixth Circuit has not

ruled on this issue, the district courts within the circuit, as
well as the federal appellate courts that have addressed the
issue, are largely in agreement that RLUIPA does not authorize a
claim for damages against a government employee in his or her
individual capacity.

See Green v. Tudor, 685 F.Supp.2d 678,

698-699 (W.D. Mich. 2010) (citing cases); see Aladimi v.
Hamilton Cnty. Justice Ctr., No. 1:09–cv–398, 2012 WL 292587,
at *17-18 (S.D. Ohio Feb. 1, 2012).

While there is potentially

an RLUIPA claim for damages against defendants in their official
capacities, since they are county employees and not employees of
the state immune under the Eleventh Amendment, see Sossamon, 131
S. Ct. at 1660, and the complaint generally avers that all
defendants are sued in both their individual and official
capacities (Docket Entry No. 1 at 6, ¶ 20), the undersigned
takes guidance from the decision in Aladimi, where the court
found that such a “theoretical[]” claim could not survive a
motion to dismiss where the complaint contained minimal
allegations referring to county policy or action in violation of
his rights under RLUIPA, and such allegations that were to be
found were vague and general.

Id. at *17-18.
11

As in Aladimi,

the complaint under review in the case at bar appears to contain
only two allegations pertaining to county policy or custom, at
paragraphs 129 and 130, where it is alleged that the Davidson
County Sheriff’s Department does not provide Qur’ans to its
Muslim inmates nor does it allow them to gather for a regular
Friday Jum’ah service, while the Sheriff’s Department does
provide Bibles, church services, and programs to the Christian
inmates.

(Docket Entry No. 1 at 20, ¶¶ 129, 130).

However,

paragraph 130 cites to the provisions of the inmate handbook
which are appended to Plaintiff’s complaint, and which
explicitly disclaim the Davidson County Sheriff’s Office’s
ability to buy religious texts or provide religious services,
noting that all such items are dependent upon the donations of
volunteers.

(Docket Entry No. 1-1 at 99-100).

Accordingly, the

undersigned must conclude that the allegations implicating
county policy are insufficient to state a plausible claim for
damages against the county government under RLUIPA.
To conclude, although the District Court found upon
initial screen that Plaintiff’s allegations implicated RLUIPA,
Plaintiff has failed to allege in his complaint or any amendment
thereto that his claim indeed fits within the scope of the
RLUIPA statute.

Thus, the undersigned Magistrate Judge finds

that DCSO Defendants’ motion to dismiss should be granted with

12

respect to any claim under RLUIPA, but denied with respect to
Plaintiff’s § 1983 claim.

c. Failure to Allege Facts Against Particular Defendants
Sufficient to State a Claim
Since no RLUIPA claim can proceed against these
defendants, the only claim left for consideration before the
undersigned is Plaintiff’s First Amendment claim under § 1983.
Concerning Defendants Dan Weikal, Granvisse Earl Young, Henry
Lehman, Lynn Norris, Tony Wilkes, and Pam Hale, DCSO Defendants
argue that Plaintiff either does not allege any specific facts
against them, or that Plaintiff alleges only minimal facts based
on administrative or supervisory actions.

Each of these

Defendants has some kind of supervisory, administrative, or
executive role within the Davidson County Sherriff’s Office;
none of them are Correctional Officers.

From this, it may be

inferred that Plaintiff is alleging respondeat superior
liability.

Respondeat superior is generally not a basis for

imposing liability on supervisory or administrative officials
under § 1983 for actions taken by their supervised employees
allegedly in violation of a right of the plaintiff.

Polk County

v. Dodson, 454 U.S. 312, 325 (1981); Wingo v. Tenn. Dept. of
Corrections, 499 Fed. Appx. 453, 455 (2012) (citing Polk County,
454 U.S. at 325).
13

However, in very narrow instances supervisory
personnel can be liable under § 1983.

To hold them liable, “a

plaintiff must allege that the supervisors were somehow
personally involved in the unconstitutional activity of a
subordinate, Dunn v. State of Tennessee, 697 F.2d 121, 128 (6th
Cir. 1982), or at least acquiesced in the alleged
unconstitutional activity of a subordinate.
729 F.2d 416, 421 (6th Cir. 1984).”
455.

Bellamy v. Bradley,

Wingo, 499 Fed. Appx. at

In short, there must be an allegation of “active

unconstitutional behavior,” Shehee v. Luttrell, 199 F.3d 295,
300 (6th Cir. 1999), such that the plaintiff is at least able to
point to some type of “causal connection between the misconduct
complained of and the official sued.”

Dunn, 697 F.2d, at 128.

The causal connection can be established by supervisory activity
that allows for subordinate conduct that is “obvious, flagrant,
rampant, and of continued duration, rather than isolated
occurrences, or [for] such a widespread pattern of
constitutional violations” that the supervisor’s deliberate
indifference is demonstrated.

Doe ex rel. Doe v. City of

Roseville, 296 F.3d 431, 440-441 (6th Cir. 2002) (quoting Braddy
v. Florida Dept. of Labor & Emp. Sec., 133 F.3d 797, 802 (11th
Cir. 1998) and Doe v. Claiborne County, Tenn., 103 F.3d 495, 513
(6th Cir. 1996).

14

Defendants Dan Weikal, Granvisse Earl Young, Lynn
Norris, and Tony Wilkes are not even named in the factual
allegations portion of Plaintiff’s complaint.

It is not alleged

that they were personally involved or that they even acquiesced
in alleged violations of Plaintiff’s rights.

The undersigned

finds that these defendants are entitled to dismissal from the
case.
Factually, Defendant Henry Lehman and Pam Hale were
not alleged to participate in any violation of Plaintiff’s
rights.

These two were only mentioned in passing.

Plaintiff

only alleged that he had previously filed a grievance against
Henry Lehman, but Plaintiff did not allege the grievance or any
response thereto to be a basis for this action, nor did he
allege the facts underlying this grievance.
1, at 68-71).

(Docket Entry No.

The only mention of Pam Hale was that she

responded to one of Plaintiff’s grievances; she told him that
the agreement that he could pray by his bunk would not change.
(Docket Entry No. 1 at 7, ¶ 29).

These mentions alone do not

allege any kind of personal involvement on the part of either
Defendant Lehman or Defendant Hale in any violation of
Plaintiff’s rights.

The undersigned also finds both are

entitled to dismissal from this case.
Defendant Byron Grizzle was mentioned in a paragraph
that alleged that Plaintiff was treated differently because of
15

his race.

(Docket Entry No. 1 at 15, ¶¶ 98-99).

Specifically,

Plaintiff states that Defendant Grizzle filled requests for
copies of grievances for a white inmate without charge.
However, Defendant Grizzle allegedly denied Plaintiff’s request
for a copy of his grievance records. 1

This allegation is

sufficient to state a claim against Defendant Grizzle under
§ 1983.

Defendant Grizzle is not entitled to dismissal from the

case at this time.
Likewise, Defendants Craft, Stagg, Bone, and Crawley
are all alleged to have taken specific actions against Defendant
in violation of Plaintiff’s constitutional rights.

Defendant

Craft was alleged to have “written [Plaintiff] up” for praying.
(Docket Entry No. 1 at 11-13, ¶¶ 67-71, 84).

Defendant Stagg

was alleged to have taken a Qur’an from Plaintiff’s bus tub
while Plaintiff was out of his cell.
¶¶ 72-73).

(Docket Entry No. 1 at 12,

Plaintiff spoke with Defendant Bone after the Qur’an

was taken from his cell, and Defendant Bone refused to permit
Plaintiff to have it back.
83).

(Docket Entry No. 1 at 12-13, ¶¶ 74-

Finally, Defendant Crawly took four prayers from

Plaintiff’s cell during a cell search and threw them away.
(Docket Entry No.1, ¶¶22, 23, 62-66).

Allegedly, Defendant

Crawley refused to talk to Plaintiff before he threw away the

1

Presumably Plaintiff is a nonwhite individual.

16

prayers, and Plaintiff could not recover them before they were
discarded.

(Id.).

Each of these instances allege facts

sufficient to show plausibly that Plaintiff could submit
evidence to prove a deprivation of Plaintiff’s First Amendment
rights which would entitle him to recover under § 1983.
Therefore, these defendants cannot be dismissed from the case at
this time.

d. Failure to Serve Process
Finally, Defendants argue that Defendants K. Cox, S.
Gray, and Thomas were not served with a summons for this suit
because their summons were returned unexecuted (Docket Entry
Nos. 21, 22, 23), so, pursuant to Federal Rule of Civil
Procedure 12(b)(4), (5), the case against them should be
dismissed.

The undersigned finds that Plaintiff was given time

allotted by the Federal Rules to serve these Defendants, and he
did not do so within 120 days allotted by Rule 4(m), nor at any
time afterward. 2

Therefore, since proper service has not been

executed within the time outlined by the Federal Rules of Civil

2
Plaintiff did seek a 90-day extension of time within which to serve process
on the remaining unserved Defendants on January 7, 2013. (Docket Entry Nos.
65 and 67). After that 90-day period expired, the motions were terminated as
moot on June 7, 2013. (Docket Entry No. 84). Plaintiff failed to serve
process on these Defendants within the first 120 days, during the 90 days
requested, or thereafter.

17

Procedure, the undersigned finds that actions against Defendants
K. Cox, S. Gray, and Thomas should be dismissed.

IV.

Recommendation

For the reasons stated above, the undersigned
Magistrate Judge recommends that the motion to DISMISS filed on
behalf of the DCSO Defendants be GRANTED in part with respect
to:
•

Any RLUIPA claim;

•

Plaintiff’s claims against Defendants Dan Weikal,
Granvisse Earl Young, Henry Lehman, Lynn Norris,
Tony Wilkes, Pam Hale, K. Cox, S. Gray, and
Thomas;

and, DENIED in part with respect to:
•

Defendant’s affirmative defense of qualified
immunity, without prejudice to Defendants raising
the defense at a later time;

•

Plaintiff’s § 1983 claims;

•

Plaintiff’s claims against Defendants Byron
Grizzle, Jonathan Craft, Joshua Stagg, Joshua
Bone, and Clarence Crawley.

Under Rule 72(b) of the Federal Rules of Civil
Procedure, any party has 14 days from receipt of this Report and

18

Recommendation in which to file any written objections to this
Recommendation with the District Court.

Any party opposing said

objections shall have 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 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).

ENTERED this 27th day of June, 2013.

s/ John Bryant
JOHN S. BRYANT
UNITED STATES MAGISTRATE JUDGE

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