Boyd v. Corrections Corporation of America et al

Filing 8

MEMORANDUM OPINION. An appropriate order is filed herewith. Signed by District Judge Todd J. Campbell on 1/2/14. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(tmw)

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

LAMONT BOYD,
Plaintiff,
v.
CORRECTIONS CORPORATION OF AMERICA,
OFFICER JAMES YARBROUGH, and
WARDEN BLAIR LEIBACH,
Defendants.

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No. 3:13-cv-1207
Judge Campbell

MEMORANDUM OPINION
Plaintiff Lamont Boyd’s complaint is before the Court for an initial review pursuant to the Prison
Litigation Reform Act (APLRA@), 28 U.S.C. '' 1915, 1915A, and 42 U.S.C. ' 1997e.
Under the PLRA, the Court is required to dismiss any in forma pauperis complaint brought under
federal law 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. 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 plaintiff names as defendants in this action CCA, Corrections Officer James Yarbrough, and
Warden Blair Leibach. Based on the allegations in the complaint and the demands made in the “relief”
section thereof, the Court presumes that the plaintiff also intended to name as a defendant CPT Maitland
Deathrow. The plaintiff alleges that on the evening of Saturday, January 19, 2013, Officer Yarbrough had
conducted Athree red zone rounds (the opening and closing of individual cell doors)@ between 7:30 and
8:30 p.m., and then Officer Thomas performed a random search of cell 021, to which the plaintiff was
assigned. When the plaintiff was allowed to return to his cell, he immediately notice that his entire bag of
recently purchased commissary items, worth $32, was missing. An investigation was performed, the
results of which were inconclusive. The plaintiff states, however, that other inmates told him that his
cellmate, Akeen Johnson, had Officer Yarbrough let Johnson into his cell, and Johnson then allowed
another inmate, Marquize Brandon, to steal the plaintiff’s commissary items. Johnson and Brandon then

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went into the cell next door and split up the commissary items among themselves and another inmate.
While the official investigation was still ongoing, Johnson threatened the plaintiff, allegedly telling
him, “I’m going to pop on you when we get in the room.” (ECF No. 1-1, at 2.) Officer Thomas overheard
the threat. CPT Maitland Deathrow later came into the cell and escorted Johnson “behind the Captain’s
Desk” (id.), presumably for questioning. The plaintiff states that when he explained the whole story to
CPT Deathrow, this officer stated: “I don’t give a fuck about your commissary, I’m here for your security.”
(Id.)
The plaintiff was later told that CPT Deathrow had checked “Pelco” (presumably video
surveillance), and it only showed Johnson going in and out of the cell. The plaintiff was told that if he and
Johnson could not get along, they would both go into segregation. “So [the plaintiff] was forced to remain
in the cell with someone who had threatened [him].” (Id. at 2–3.) The plaintiff does not allege that he was
ever actually injured by Johnson, who is apparently no longer his cellmate.
The plaintiff complains that no further investigation was conducted and insists that the incident
constitutes “a violation of [his] right to be safe while being housed in this facility.” (Id. at 3.) However, his
primary complaint is that CCA refused to compensate him for the value of the stolen items. He states that
he provided to Warden Leibach, at the warden’s request, additional evidence pertaining to the theft,
including his account balance sheet and commissary purchase receipt to verify the purchases he had
made for the week in question. The warden refused to consider this information and informed the plaintiff
that the investigation was complete and a decision had been made. The plaintiff further asserts that a
white inmate named David Bittikofer had commissary items stolen from him by his cellmate just a month
or so before the plaintiff’s incident, and CCA refunded to Bittikofer the “ten or twelve dollars for
commissary that was stolen from him.” (Id. at 4.) The plaintiff also complains that in the unit to which he is
assigned, the inmates are not allowed locks, but in other units they are.
In the “relief” section of his complaint, the plaintiff demands a refund from CCA and apologies
from Officer Deathrow and Warden Leibach. He does not expressly seek any sort of relief from Officer
Yarbrough.
The plaintiff’s complaint is brought under 42 U.S.C. ' 1983. 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 deprivation was caused by a person acting under color of state law.” Tahfs v.

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Proctor, 316 F. 3d 584, 590 (6th Cir. 2003) (citations omitted); 42 U.S.C. ' 1983. Because they were
“perform[ing] the traditional state function of operating a prison,” it is clear, as an initial matter, that the
defendants in this action qualify as persons “act[ing] under the color of state law for purposes of § 1983.”
Thomas v. Coble, 55 F. App’x 748, 748 (6th Cir. 2003) (citing Street v. Corrs. Corp. of Am., 102 F.3d 810,
814 (6th Cir. 1996)). The question, then, is whether the plaintiff’s allegations, if true, might establish that
these persons violated his constitutional rights.
The plaintiff makes essentially three claims in this action: (1) an Eighth-Amendment failure-toprotect claim based on his allegations that the defendants failed to take seriously the threat against him
by inmate Johnson; (2) a procedural due-process claim based on Yarbrough’s alleged involvement in
Johnson’s theft of goods from the plaintiff, and on CCA’s refusal to reimburse him for the value of the
goods allegedly stolen by Johnson; and (3) an equal-protection claim based on his allegation that CCA
reimbursed a white inmate for the cost of goods stolen from him by his cell mate but refused to
compensate the plaintiff, who is black, under similar circumstances. The plaintiff also seeks an apology
from defendant Deathrow, but the basis for the plaintiff’s claim against Deathrow is not clear.
First, with respect to Johnson’s threat of harm, while prison officials have an obligation to protect
prisoners from injury by other inmates, the plaintiff has not shown that any failure to take the threat
seriously resulted in physical harm or any other damage to him or that the threat of harm is ongoing at
this point. In order to state a claim for damages based on a violation of his rights under the Eighth
Amendment, the plaintiff must allege that he suffered some physical injury. See, e.g., Saunders v.
Tourville, 97 F. App’x 648, 649 (7th Cir. 2004) (“[A]n inmate who suffers only a risk of physical harm has
no compensable claim under the Eighth Amendment.”); Wilson v. Yaklich, 148 F.3d 596, 600 (6th Cir.
1998) (affirming dismissal of claim for damages based on threats that did not result in physical harm).
While the plaintiff would not necessarily need to show actual harm in order to be entitled to injunctive
relief, he does not allege that Johnson is still his cellmate or that he remains in danger, so he has no
basis for seeking injunctive relief either. See Wilson, 148 F.3d at 600 (affirming dismissal of claims for
injunctive relief where the plaintiff did not allege that he remained in danger). The Court therefore finds
that the plaintiff fails to state a claim based on the prison officials’ failure to take Johnson’s threat
seriously.
Regarding the alleged theft of the plaintiff’s property, the plaintiff does not actually claim that he

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was deprived of his property by a state actor. Instead, he claims his commissary items were stolen by
another inmate. However, the plaintiff also appears to be claiming that Officer Yarbrough was somehow
involved in the incident, either intentionally or negligently. Thereafter, the plaintiff filed grievances, which
were denied, and he unsuccessfully appealed those grievances. He alleges that prison officials did not
conduct an adequate investigation and essentially minimized or disregarded his theft claim, and refused
to reimburse him for the amount stolen. In this sense as well, the plaintiff appears to be asserting that he
was “deprived” of his property by one or more state actors.
Theft by another inmate, per se, does not give rise to a constitutional claim, because the other
inmate is in no sense a “state actor.” At best, the plaintiff would have a state-law tort claim for theft
against the other inmate. However, a claim premised on the deprivation of property by a state actor,
without due process of law, is cognizable in a civil action brought under ' 1983. Lynch v. Household Fin.,
405 U.S. 538, 552 (1972). Notwithstanding, not every deprivation of property by a state actor gives rise to
a federal cause of action. Under Parratt v. Taylor, 451 U.S. 527 (1981), overruled in part by Daniels v.
Williams, 474 U.S. 327 (1986), a person deprived of property by a “random and unauthorized act” of a
state employee has no federal due-process claim unless the state fails to afford an adequate postdeprivation remedy. Id. at 537. If an adequate post-deprivation remedy exists, the deprivation, although
real, is not “without due process of law.” Id. This rule applies to both negligent and intentional deprivation
of property, as long as the deprivation was not done pursuant to an established state procedure. See
Hudson v. Palmer, 468 U.S. 517, 530B36 (1984). The Sixth Circuit has further held that the plaintiff
seeking to avoid dismissal of his due-process claim under Parratt has the “burden of pleading and proving
the inadequacy of state processes.” Vicory v. Walton, 721 F.2d 1062, 1066 (6th Cir. 1983).
The plaintiff in this case fails to state a procedural due process claim based on the alleged theft of
his property because: (1) the deprivation was unpredictable; (2) pre-deprivation process was
impracticable; (3) Officer Yarbrough was not authorized to take the action that allegedly deprived the
plaintiff of his property; and (4) although the plaintiff alleges that officials did not conduct a sufficiently
thorough investigation and that his grievances relating to this topic were denied, his allegations do not
suggest that his state post-deprivation remedies are inadequate. See Benson v. Carlton, 229 F.3d 1150
(Table), 2000 WL 1175609, at *1 (6th Cir. Aug. 9, 2000) (affirming dismissal of pro se prisoner’s claim for
failure to allege inadequate state remedy as required by Vicory and Parratt). This claim too is subject to

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dismissal.
Insofar as the plaintiff seeks relief from defendant Deathrow, the Court finds that the plaintiff fails
to assert any cognizable claim against that defendant. The only allegation against Deathrow, apart from
his alleged involvement in the failure to protect the plaintiff from the purported threat posed by inmate
Johnson, is that he exclaimed to the plaintiff, “I don’t give a fuck about your commissary, I’m here for your
security.@ ((ECF No. 1-1, at 2.) Cursing and disrespect alone do not give rise to a claim of constitutional
dimension. See Ivey v. Wilson, 832 F.2d 950, 955 (6th Cir. 1987) (verbal abuse, harassment, and threats
are insufficient to state a constitutional violation under § 1983); Searcy v. Gardner, No. 3:07-0361, 2008
WL 400424, at *4 (M.D. Tenn. Feb. 11, 2008) (“A claim under 42 U.S.C. § 1983 cannot be based on mere
threats, abusive language, racial slurs, or verbal harassment by prison officials.”). Nor does the plaintiff
allege facts suggesting Deathrow might be liable to him under any state law.
Finally, the plaintiff seems to be attempting to make out an equal-protection claim based on
CCA’s allegedly treating a white inmate more favorably than it treated him, because it reimbursed the
white inmate for the amount of his loss at the hands of another inmate. The plaintiff states: “If another
inmate or inmates have received compensation in the past for loss of property under identical or similar
circumstances as I experienced then I should be afforded this same right.” (ECF No. 1-1, at 4.) The
plaintiff does not expressly state who made the decision to reimburse the other inmate or the decision not
to reimburse him, nor does he state that the decision was made as a matter of custom or policy on the
part of CCA. The Court nonetheless finds, based on these allegations, solely for purposes of the initial
review, that the plaintiff has adequately alleged an equal-protection claim under the Fourteenth
Amendment against Warden Leibach in his individual capacity as the person who may be presumed to
have made these decisions on behalf of CCA, and against CCA on the basis of an implied policy or
custom.
The plaintiff’s equal-protection claim will be permitted to proceed against these two defendants,
but the remaining claims against the other two defendants will be dismissed under the PLRA for failure to
state a claim upon which relief may be granted. An appropriate order is filed herewith.

Todd Campbell
United States District Judge