Scruggs v. Bryson et al

Filing 25

REPORT AND RECOMMENDATION: This matter is before the Court upon a Motion to Dismiss, filed by Defendant Michael Bryson, the only remaining Defendant in this action. Pursuant to Fed. R. Civ. P. 12(b)(6), for failure to state a claim upon which rel ief can be granted. Docket No. 19 . In support of his Motion, Defendant has filed an accompanying Memorandum of Law. Docket No. 20 . For the foregoing reasons, the undersigned recommends that Defendant's Motion to Dismiss be GRANTED IN PART and DENIED IN PART. Specifically, the undersigned recommends that Defendant's Motion to Dismiss be GRANTED with respect to Plaintiff's Eighth Amendment claims, but DENIED with respect to Plaintiff's First Amendment retaliation claims. Signed by Magistrate Judge E. Clifton Knowles on 7/19/13. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(la)

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

DENNIS SCRUGGS, # 504118,

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Plaintiff,

v.

MICHAEL BRYSON,
Defendant.

CASE NO. 3:13-cv-00278
JUDGE CAMPBELL
JUDGE KNOWLES

REPORT AND RECOMMENDATION
I. Introduction and Background
This matter is before the Court upon a Motion to Dismiss, filed by Defendant Michael
Bryson, the only remaining Defendant in this action,1 pursuant to Fed. R. Civ. P. 12(b)(6), for
failure to state a claim upon which relief can be granted. Docket No. 19. In support of his
Motion, Defendant has filed an accompanying Memorandum of Law. Docket No. 20.
Plaintiff, pro se, has filed a “Response to States [sic] Motion to Dismiss.” Docket No.
23.
Plaintiff, an inmate of the Tennessee Department of Correction (TDOC) at Charles Bass
Correctional Complex (CBCX), filed this action, pro se, in forma pauperis, pursuant to 42

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Plaintiff initially also sued Warden Qualls and TDOC, but those claims were dismissed
in Judge Campbell’s March 28, 2013 Order. Docket No. 6.
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U.S.C. § 1983, alleging that Defendant violated his constitutional rights. Docket No. 1.2
Specifically, Plaintiff avers as follows:
On or around September or October of 2012, I was in Guild #5 at
Charles Bass Correctional Complex. I was doing my job as a
Rockman (Industrial Cleaner[)]. Mr. Bryson, the first shift officer,
told several inmates that I was snitching on them, and two of the
inmates pulled me into my cell to beat me up. I defended myself
verbally and no assault took place, but I was terrified. I filed a
grievance on Mr. Bryson and as a result of that grievance he was
moved to another guild. Unfortunately, this was only temporary
and [M]r. Bryson was soon moved back to Guild #5. By that time
I had been given another job and I wasn’t around Mr. Bryson or
the guild during the day. The trouble with Mr. Bryson started
again when another inmate once again came to me and told me that
Mr. Bryson was telling inmates that I was snitching on them. I
spoke with Cpl. Hall and Sgt. Barbee about this situation and Mr.
Bryson cooled out for a while. I was soon given a job at the state
capital and rarely had any dealings with Mr. Bryson. Do [sic] to
Mr. Bryson’s actions and the intimidation I received from the other
inmates, I would stay in my cell when at the guild. I was scared
most of the time and stayed stressed out. On March 4, 2013, I
spoke with Mr. Bryson about a problem I was having with another
inmate and he told me that he couldn’t help me because no one
would listen to him. He said I needed to write a letter to Unit
Manager Mike Johnson, which I did. I did not sign the letter as
Mr. Bryson told me not to, that way no one would know that I had
done it. On March14, 2013, around 7 a.m. an inmate told me that
Mr. Bryson told him and other inmates that I was the one who
wrote the letter. I immediately asked Mr. Bryson for a grievance
form and he stated, “What for? Are you going to try to have me
moved again?” He gave it to me, and I started filling it out and
placed it in the grievance box as soon as I came in from work.
This was about 5:30 p.m. At about 8:30 p.m. I was served with a
write-up for threatening an employee. I believe this is in

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Plaintiff has filed two Amended Complaints in this action. Docket Nos. 10, 13.
Plaintiff explicitly states, “This amended petition is not to replace the petitioner’s original
complaint, but to provide additional information.” Id. Plaintiff’s first Amended Complaint
levies no new allegations against Defendant. Docket No. 10. Plaintiff simply reiterates the
allegations of his original Complaint, and notes that he “is lucky he never got hurt.” Id.
Plaintiff’s second Amended Complaint is a letter from a fellow inmate. Docket No. 13.
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retaliation for filing the grievance. . . .
Id.
Plaintiff seeks the termination of Defendant and compensatory damages in the amount of
$300,000. Docket No. 1 at 5.
Defendant filed the instant Motion and accompanying Memorandum of Law on June 13,
2013. Docket Nos. 19, 20. Defendant argues that this action should be dismissed because:
1) pursuant to Heck v. Humphrey and Edwards v. Balisok, Plaintiff fails to state a cognizable
§1983 claim; 2) Plaintiff fails to establish the requisite elements of a retaliation claim; 3)
Plaintiff fails in his claim for damages because he neither alleges nor shows any serious physical
injury as required by the §803(d) of the PRLA; and 4) Plaintiff has not demonstrated that he has
exhausted his administrative remedies. Id.
Plaintiff responds that Defendant’s telling other inmates that he was a snitch constitutes
cruel and unusual punishment, in violation of his Eighth Amendment rights, because it put
Plaintiff “within harms way of other inmates.” Docket No. 23 at 1-2. Plaintiff also responds that
Defendant retaliated against him because: 1) he filed a grievance against Defendant, in
accordance with administrative instruction; 2) Defendant was aware of the filing; 3) Defendant
was removed from Plaintiff’s unit for approximately three months; 4) after Defendant returned to
Plaintiff’s unit, he began looking for ways to get back at Plaintiff; 5) Plaintiff filed another
grievance, of which Defendant was aware, and 6) shortly thereafter, Plaintiff was served with a
write-up for threatening an employee. Id. at 2. Plaintiff contends that the write-up was in
retaliation for his grievance, in violation of TDOC Policy 501.01 (V) which states “[t]he TDOC
shall ensure that every inmate has the right to utilize the grievance procedure without fear of

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reprisal.” Id., quoting Tennessee Department of Corrections Policy 501.01(V).
For the reasons discussed below, the undersigned recommends that Defendant’s Motion
to Dismiss be GRANTED IN PART, and DENIED IN PART.
III. Analysis
A. Motion to Dismiss
Fed. R. Civ. P. 12(b)(6) provides that a claim may be dismissed for failure to state a
claim
upon which relief can be granted. In order to state a claim upon which relief can be granted, a
complaint must contain either direct or inferential allegations respecting all material elements to
sustain a recovery under some viable legal theory. Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir.
2005). Conclusory allegations or legal conclusions masquerading as factual allegations will not
suffice. Id. A complaint containing a statement of facts that merely creates a suspicion of a
legally cognizable right of action is insufficient. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955,
1965 (2007). The “[f]actual allegations must be enough to raise a right to relief above the
speculative level”; they must “state a claim to relief that is plausible on its face.” Id. At 1965,
1974. See also, Ass’n of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545, 548 (6th
Cir. 2007).
Moreover, the United States Supreme Court has recently addressed the appropriate
standard that must be applied in considering a Motion to Dismiss for failure to state a claim. See
Ashcroft v. Iqbal, 129 S. Ct. 1937, 137 L. Ed. 2d 868 (2009). The Iqbal Court stated in part as
follows:
Two working principles underlie our decision in Twombly. First,
the tenet that a court must accept as true all of the allegations
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contained in a complaint is inapplicable to legal conclusions.
Threadbare recitals of the elements of the cause of action,
supported by mere conclusory statements, do not suffice . . . . Rule
8 marks a notable and generous departure from the hypertechnical, code-pleading regime of a prior error, but it does not
unlock the doors of discovery for plaintiff armed with nothing
more than conclusions. Second, only a complaint that states a
plausible claim for relief survives a motion to dismiss . . . .
Determining whether a complaint states a plausible claim for relief
will, as the Court of Appeals observed, be a context-specific task
that requires the reviewing court to draw on its judicial experience
and common sense. . . . But where the well-pleaded facts do not
permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged - but it has not “show[n]” “that the pleader is entitled to relief.”
129 S.Ct. at 1949-1950, 173 L. Ed. 2d at 884 (citations omitted).
B. 42 U.S.C. § 1983
Plaintiff alleges violations of his constitutional rights pursuant to 42 U.S.C. § 1983. See
Docket No. 1. Section 1983 provides, in part, that:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper
proceeding for redress...
Thus, in order to state a claim under § 1983, a plaintiff must allege the violation of a right
secured by the Constitution and laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S.
42, 48, 108 S. Ct. 2250, 2254-55 (1988), citing Parratt v. Taylor, 451 U.S. 527, 535, 101 S. Ct.
1908, 1913 (1981) (overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 330331, 106 S. Ct. 662 (1986)); Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155, 98 S. Ct. 1729, 1733
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(1978). The traditional definition of acting under color of state law requires that the defendant in
a § 1983 action have exercised power “possessed by virtue of state law and made possible only
because the wrongdoer is clothed with the authority of state law.” Id. at 49, 108 S. Ct. 2255,
quoting United States v. Classic, 313 U.S. 299, 326, 61 S. Ct. 1031, 1043 (1941).
C. The Case at Bar
As noted, Plaintiff avers that Defendant placed him in a dangerous situation by having
him labeled a “snitch,” and that having him incarcerated while being labeled a “snitch”
constitutes cruel and unusual punishment in violation of his Eighth Amendment rights. See
Docket Nos. 1, 23. Plaintiff asserts that he filed a grievance against Defendant, resulting in
Defendant’s transfer out of his unit for three months, and that Defendant had been looking for a
way to retaliate against Plaintiff ever since he returned. Id. Plaintiff contends that,
approximately three hours after he filed another grievance against Defendant, he received a
disciplinary write-up for “threatening an employee.” Id. Plaintiff argues that Defendant had this
disciplinary write-up issued based upon a personal bias, in retaliation for his filing a grievance
against him, and not because Plaintiff violated TDOC rules. Id. Plaintiff essentially argues that
his filing of grievances is protected First Amendment conduct because TDOC Policy 501.01 (V)
states, “[t]he TDOC shall ensure that every inmate has the right to utilize the grievance
procedure without fear of reprisal.” Id., quoting Tennessee Department of Corrections Policy
501.01(V).
With regard to Defendant’s contention that this action should be dismissed because
Plaintiff’s §1983 claim cannot survive Heck and Edwards, Plaintiff alleges that he received a
disciplinary write-up, but there is no indication that Plaintiff’s write-up has resulted in a

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disciplinary conviction that would trigger either Heck or Edwards. Accordingly, Defendant
cannot prevail on this ground.
Defendant next argues that this action should be dismissed because Plaintiff cannot
satisfy the requisite elements of a retaliation claim. Docket No. 20. Specifically, Defendant
contends that Plaintiff cannot satisfy the causation requirement for retaliation, “because the
finding that [the inmate] was guilty of the disciplinary offense satisfies the defendants’ burden of
showing that they would have brought the conduct charges against [the inmate] regardless of his
prior grievances.” Id., quoting Hynes v. Squillace, 143 F.3d 653, 657 (2nd Cir. 1998). As noted
above, however, there is nothing in the record to indicate that Plaintiff has had a disciplinary
hearing or been convicted of a disciplinary offense in connection with the disciplinary write-up
at the heart of this case. Plaintiff’s retaliation claim will be analyzed in greater detail below, but,
for the reasons already discussed, Defendant’s causation argument is unavailing.
Defendant also argues that this action should be dismissed because Plaintiff has failed to
exhaust his administrative remedies, but Plaintiff contends that he filed a grievance against
Defendant resulting in Defendant’s transfer out of his unit for three months, and that he filed
another grievance against Defendant and three hours later received a disciplinary write-up.
Taking these allegations as true, Plaintiff has filed two grievances, and Defendant cannot prevail
on this ground.
Plaintiff avers that Defendant placed him in a dangerous situation by having him labeled
a “snitch,” which, according to Plaintiff, constitutes cruel and unusual punishment in violation of
the Eighth Amendment. Labeling Plaintiff a “snitch,” however, simply does not rise to the level
of a constitutional violation (see, e.g., Dyer v. Hardwick, 2011 WL 4036681 E.D. Mich.), and

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Plaintiff has failed to allege or demonstrate that he has suffered any physical injury, as required
by the Prison Litigation Reform Act. Id. at 7, citing 42 U.S.C. § 1997e(e). With regard to any
alleged injury beyond receiving a disciplinary write-up, Plaintiff states:
[T]wo of the inmates pulled me into my cell to beat me up. I
defended myself verbally and no assault took place, but I was
terrified. . . . Do [sic] to Mr. Bryson’s actions and the intimidation
I received from the other inmates, I would stay in my cell when at
the guild. I was scared most of the time and stayed stressed out.
Docket No. 1.
As can be seen, Plaintiff acknowledges that no assault took place. Id. Although Plaintiff
alleges that he was “terrified,” “scared most of the time,” and “stayed stressed out,” fear and
stress, alone, are insufficient for recovery in Eighth Amendment claims under 42 U.S.C. §
1997e(e). 42 U.S.C. § 1997e(e) explicitly states:
No Federal civil action may be brought by a prisoner confined in a
jail, prison or other correctional facility, for mental or emotional
injury suffered while in custody without a prior showing of
physical injury.
Because Plaintiff has neither alleged nor demonstrated that he suffered any physical
injury as a result of Defendant’s actions, Plaintiff has failed to state a viable Eighth Amendment
claim. See Harden-Bey v. Rutter, 524 F.3d 789, 795-96 (6th Cir. 2008). Accordingly,
Defendant’s Motion to Dismiss should be granted with regard to Plaintiff’s Eighth Amendment
claims.
Inasmuch as Plaintiff argues that his filing of grievances is protected by the First
Amendment, Plaintiff is correct that retaliation for filing grievances could violate his First
Amendment rights, as well as TDOC Policy 501.01 (V), which states, “[t]he TDOC shall ensure
that every inmate has the right to utilize the grievance procedure without fear of reprisal.” It is
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well-settled that actions, which standing alone do not violate the Constitution, may become
violative if motivated in substantial part by a desire to punish an individual for exercising a
constitutional right. See Thaddeus-X v. Blatter, 175 F.3d 378, 386 (6th Cir. 1999)(citations
omitted). Retaliation claims, in general, require that the plaintiff engaged in protected conduct,
the defendant was aware that the plaintiff had engaged in that conduct, the defendant took
adverse action against the plaintiff, and the adverse action was taken, at least in part, because of
the protected conduct. Id. at 386-87.
In the instant case, Plaintiff engaged in protected conduct when he filed grievances. See,
e.g., TDOC Policy 501.01(V); Id. at 391. Secondly, Plaintiff contends that Defendant knew that
he had filed grievances against him because Defendant was transferred out of Plaintiff’s wing
after the filing of the first grievance against him and because Plaintiff specifically asked
Defendant for the second grievance form and then filed it. Taking these allegations as true,
Defendant was aware that Plaintiff had engaged in protected conduct. Thirdly, Plaintiff contends
that Defendant had a disciplinary write-up issued against him. Taking this allegation as true,
Defendant took adverse action against Plaintiff. Finally, Plaintiff contends that Defendant had
the disciplinary write-up issued in direct retaliation for Plaintiff’s filing the grievances against
him. Again, taking this allegation as true, Defendant’s adverse action was taken, at least in part,
because of Plaintiff’s protected filing of grievances. Accordingly, at this stage of the litigation,
Plaintiff has sufficiently stated a First Amendment retaliation claim, and that claim should
proceed.
III. Conclusion
For the foregoing reasons, the undersigned recommends that Defendant’s Motion to

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Dismiss be GRANTED IN PART and DENIED IN PART. Specifically, the undersigned
recommends that Defendant’s Motion to Dismiss be GRANTED with respect to Plaintiff’s
Eighth Amendment claims, but DENIED with respect to Plaintiff’s First Amendment retaliation
claims.
Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14)
days after 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 after service of any objections filed to this Report in which to file any
response to said objections. Failure to file specific objections within fourteen (14) days of
service of this Report and Recommendation can constitute a waiver of further appeal of this
Recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L. Ed. 2d 435 (1985),
reh’g denied, 474 U.S. 1111 (1986); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.

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E. CLIFTON KNOWLES
United States Magistrate Judge

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