Newby v. Tennessee Department of Correction et al

Filing 129

ORDER ADOPTING REPORT AND RECOMMENDATIONS: In light of the foregoing, the Court rules as follows: (1) With respect to the Motion to Dismiss filed on behalf of the State Defendant (Docket No. 111) the R & R (Docket No. 119) is ACCEPTED insofar as it recommends dismissal of the claims against TDOC and the claims for money damages against Defendants Schofield and Parker in their official capacity. Those claims are hereby DISMISSED. (2) With respect to the Partial Motion to Dismiss filed on be half of the CCA Defendants (Docket No. 83), the R & R (Docket No. 119) is ACCEPTED insofar as it recommends dismissal of the claims against Defendants Chapman, Spears, and Hininger, and those claims are hereby DISMISSED; (3) The claims against Def endant Clinical Services (which was sued as Centurion Medical Services) are hereby DISMISSED; and (4) The Clerk shall term the following as pending; (a) the R & R (Docket No. 119); (b) the Motions to Dismiss (Docket Nos. 83 and 111 ); and (c) Pl aintiff's Objections (Docket No.125). This matter is hereby returned to the Magistrate Judge for further pretrial case management and a Report and Recommendation on any further dispositive motions. It is SO ORDERED. Signed by Chief Judge Kevin H. Sharp on 1/12/2016. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
BERT NEWBY and MONTEZ ADAMS, )
)
Plaintiffs,
)
)
v.
)
)
TENNESSEE DEPARTMENT OF
)
CORRECTION, et al.,
)
)
Defendants.
)

No. 3:14-01750
Judge Sharp

MEMORANDUM OPINION AND ORDER
Pending before the Court is a Report and Recommendation (“R & R”) (Docket No. 119)
from the Magistrate Judge, recommending that Defendants’ Motions to Dismiss (Docket Nos. 83
& 111) be granted and that this case be dismissed. Plaintiffs have filed objections to the R & R
(Docket No. 125).
Having conducted the de novo review required by Rule 72 of the Federal Rules of Civil
Procedure, the Court agrees that dismissal is warranted as to some Defendants and on some claims.
As to others, however, the Court finds that dismissal is unwarranted at this time.
A. Claims Against State Defendants
It is clear that Plaintiffs’ claims against the Tennessee Department of Corrections (“TDOC”)
are subject to dismissal. “Section 1983 provides a federal forum to remedy many deprivations of
civil liberties, but it does not provide a federal forum for litigants who seek a remedy against a State
for alleged deprivations of civil liberties [because the] Eleventh Amendment bars such suits unless
the State has waived its immunity.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64, 71 (1989).
Tennessee has not waived its immunity, and the immunity it possesses applies to it departments and
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agencies, including “[TDOC] and the prisons under its control.” Wingo v. Tenn. Dep’t of Corr., 499
F. App’x 453, 454 (6th Cir. 2012).
It is also clear that claims for money damages against TDOC Commissioner Derrick
Schofield and Assistant Tony Parker in their official capacities are subject to dismissal. This is
because a Section 1983 “suit against a state official in his or her official capacity is not a suit against
the official but rather is a suit against the official’s office,” Will, 491 U.S. at 71, and “employees of
TDOC, which is a department of the State of Tennessee, . . . stand in the shoes of the State of
Tennessee.” McGowan v. Corizon Med., 2015 WL 5773590, at *4 (M.D. Tenn. Sept. 30, 2015).
See also, Burke v. Tenn. Dep’t of Corr., 2015 WL 1275191, at *2 (M.D. Tenn. Mar. 19, 2015)
(“The Plaintiff’s Section 1983 claims for monetary damages against the individual Defendants in
their official capacities. . . and against the Tennessee Department of Corrections are barred by the
Eleventh Amendment”).
What is not so clear, however, is whether Plaintiffs can ultimately prove their individual
capacity claims against Defendants Schofield and Parker and their request for injunctive relief.
“Under the doctrine developed in Ex parte Young and its progeny, a suit that claims that a state
official’s actions violate the constitution or federal law is not deemed a suit against the state, and
so barred by sovereign immunity, so long as the state official is the named defendant and the relief
sought is only equitable and prospective.” Westside Mothers v. Haveman, 289 F.3d 852, 860-61
(6th Cir. 2002).
In recommending all claims against Defendants Schofield and Parker be dismissed, the
Magistrate Judge wrote:
. . . Plaintiffs have failed to allege that individual TDOC Defendants Schofield or
Parker have been either personally involved in, or personally authorized, approved,
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or acquiesced in the allegedly violative conduct of which Plaintiffs complain. Rather,
the entirety of Plaintiffs’ allegations against Defendants Schofield and Parker involve
the fact that they hold senior TDOC positions and, as part of their jobs, implemented
a TDOC policy. As noted, Defendants Schofield and Parker cannot be held liable
simply due to their supervisory positions. Plaintiffs’ lack of allegations that
Defendants Schofield and Parker were personally involved in, authorized, approved,
or acquiesced in the allegedly unconstitutional conduct is fatal to their claim.
Accordingly, the individual capacity claims against the individual TDOC Defendants
should be dismissed.
(Docket No. 119 at 24). In the Court’s opinion, this reads the Complaint too narrowly.
No doubt, and as the Magistrate Judge pointed out, Section 1983 does not provide for the
imposition of liability based upon a theory of respondeat superior; rather, “‘proof of personal
involvement is required for a supervisor to incur personal liability.’” Grinter v. Knight, 532 F.3d
567, 575 (6th Cir. 2008) (citation omitted). But it does allow for liability where a defendant
authorizes, approves, or acquiesces in activity that results in a constitutional deprivation. Id.; see
Flagg v. City of Detroit, 715 F.3d 165, 174 (6th Cir. 2013) (“When suing an individual actor . . . for
constitutional violations under § 1983, plaintiff must demonstrate that the actor ‘directly
participated’ in the alleged misconduct, at least by encouraging . . . , if not carrying it out himself.”).
Indeed, “‘an influential recommender can be liable under § 1983 without being the final
decisionmaker, if the recommendations are shown to be sufficiently influential.’” Stinebaugh v.
City of Wapakoneta, 2015 WL 7003757, at *8 (6th Cir. Nov. 10, 2015) (quoting Ward v. Athens City
Bd. of Educ., 1999 WL 623730, at *8 (6th Cir. Aug. 11, 1999)).
Part of the allegations here are, as the Magistrate Judge noted, not only that Defendants
Schofield and Parker held “senior TDOC positions,” but also that “as part of their jobs, [they]
implemented [] TDOC policy.” (Docket No.119 at 24). One of the policies about which Plaintiffs
complain is the removal of “hotpots” from inmates’ cells and in support they attached a directive

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apparently authored by Assistant Commissioner Parker which, at least facially, suggests he may be
responsible for the policy. Arguably, as Defendants Schofield and Parker assert, Plaintiffs had an
adequate and available post-deprivation remedy within the meaning of Parratt v. Taylor, 451 U.S.
527 (1981), but this was not addressed in the R & R. Moreover, Plaintiffs also complain about such
things as lockdowns, which have allegedly resulted in significantly decreased recreation time, and
inoperable locking mechanisms that affect security, among other things. Such allegations suggest
more than an attempt to hold Defendants Schofield and Parker liable merely as supervisors of errant
employees; they suggest policies.
This is not to say that Plaintiffs can prevail on any of their claims, some of which, the Court
concedes, are conclusory. It could be, for example, that the things they suggest are policies are not
in fact policies, or that, even if they are policies, application of the policies did not result in a
constitutional deprivation. It could also be that some or all of the claims fail on the merits.
It is to say, however, that “‘[p]ro se plaintiffs enjoy the benefit of a liberal construction of
their pleadings and filings,’” El Bey v. Roop, 530 F.3d 407, 413 (6th Cir. 2008) (citation omitted),
Rule 8(a)(2) requires only a “short and plain statement of the claim showing that the pleader is
entitled to relief,” and “when ruling on a defendant's motion to dismiss, a judge must accept as true
all of the factual allegations contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 93-94
(2007). Under these standards, the Court believes, dismissal of the claims for injunctive relief
against Defendants Schofield and Parker on the grounds that Section 1983 imposes no respondeat
superior liability sweeps to broadly.

B. Claims Against Correctional Corporation of America Defendants

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Corrections Corporation of America (“CCA”) is a private company that contracts to run
prisons and, as such, acts “under state law” for purposes of Section 1983 when “performing the
‘traditional state function’ of operating a prison.” Street v. Corr. Corp. of Am., 102 F.3d 810, 814
(6th Cir. 1996). However, unlike the state, it is not entitled to Eleventh Amendment immunity, and
“may be liable under § 1983, “if its official policies or customs resulted in injury to the plaintiff.”
O’Brien v. Mich. Dep’t of Corr., 592 F. App’x 338, 341 (6th Cir. 2014); see also, Mason v. Doe,
2013 WL 4500107, at *1 (W.D. Ky. Aug. 21, 2013) (collecting cases) (“a private corporation may
be liable under § 1983 when an official policy or custom of the corporation causes the alleged
deprivation of a federal right”). It “cannot be held liable on a respondeat superior theory.” Johnson
v. Karnes, 398 F.3d 868, 877 (6th Cir. 2005).
Even though CCA filed only a “Partial Motion to Dismiss,” the Magistrate Judge
recommends that the claims against the CCA Defendants be dismissed in their entirety, including
all claims against CCA, its president and CEO Damon Hininger, Warden Arvil Chapman, and
Librarian Wanda Spears. In doing so, the R & R states that “Plaintiffs do not allege that any
particular CCA policy, practice or custom violated their rights,” and that, as a consequence, the
claims against the individual CCA Defendants in their official capacity are subject to dismissal
because they “stand in the shoes of CCA.” (Docket No. 119 at 25). As for the claims against the
CCA Defendants in their individual capacity, the Magistrate judge recommends dismissal because
there is no respondeat superior liability.
The Court agrees with the recommended disposition as to the individual CCA Defendants
in their official capacity because “individuals sued in their official capacities” do, in fact, “stand in
the shoes of the entity they represent,” Alkire v. Irving, 330 F.3d 802, 810 (6th Cir. 2003), and an

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official capacity suit “represent[s] only another way of pleading an action against an entity of which
an officer is an agent.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 n. 55, (1978). Because
CCA remains a Defendant (unlike TDOC), the official capacity claims are “redundant and therefore
unnecessary.” Malone v. Corr. Corp. of Am., 2013 WL 6498067, at *7 (M.D. Tenn. Dec. 11, 2013);
see also, Epperson v. City of Humboldt, 2015 WL 6440740, at *4 (W.D. Tenn. Oct. 21, 2015)
(“When, as here, the entity is a named defendant, official capacity claims against individual sheriffs
and police officers are ‘redundant’ and ‘superfluous.’”); Shepherd v. Floyd Cty., 2015 WL 5315730,
at *1 (E.D. Ky. Sept. 10, 2015) (“Section 1983 claims may be dismissed against government entity
employees as redundant when the plaintiff also sues the government entity”).
The Court also agrees that the individual capacity claims against the CCA Defendants fall
short because there are insufficient allegations that they personally were involved in a constitutional
deprivation. The Complaint emphasizes the CCA Defendants’ titles and positions and even
Plaintiffs’ objections make clear that their claims are based upon DOC or CCA policies, not the
respective actions of the individual CCA Defendants:
As the claims raised in the Plaintiff(s)’ Original Complaint revolve around
constitutional violations perpetrated by policies and procedures enacted by
authoritative figures, it was necessary for the Plaintiff(s) to address their claims
against those in power to enforce those policies and procedures. The Plaintiff(s)
clearly argue that the claimed violations are due to policies and procedures enacted
and enforced by men and women who occupy authoritative positions within the
corrections chain of command, thus they were personally involved.
Docket No. 125 at 2).
Precisely because Plaintiffs’ claims are grounded on alleged policies, however, the Court
disagrees with the recommended dismissal of CCA as a Defendant. As already noted, a private
entity performing state functions can be liable for constitutional deprivations based on its own

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policies. In allowing the claims to go forward against CCA, the Court reiterates that what Plaintiffs
claim are policies may not be policies and may not have resulted in a deprivation of a constitutional
right. And it may also be that the policies about which they complain are DOC policies and not
those of the CCA. But these are matters that can be sorted out later. For now, the Court concludes
that dismissal as to CCA is premature.
The Court recognizes Defendants’ argument that Plaintiffs did not directly address CCA in
their objections. They did, however, object generally to the recommended dismissal of all
Defendants, and repeatedly reference alleged policies that are in place at the privately run prison
facility in which they are housed. Further, while Rule 72 states that “[t]he district judge must
determine de novo any part of the magistrate judge’s disposition that has been properly objected to,”
Fed. R. Civ. P. 72(b)(3), this Court local rule can be read a bit broader by providing that “[t]he
District Judge shall make a de novo determination of the matter, L.R. 72.03(b)(3).
The Court also notes that the CCA Defendants in their Motion for Partial Dismissal also
raised arguments regarding the substantive merits of most of Plaintiffs’ claim. Those arguments
were not addressed in the R & R and are for the Magistrate Judge to consider in the first instance.
This is something perhaps best done in the context of a motion for summary judgment where all of
Plaintiffs’ claims can be considered at one time.
C. Claims Against Clinical Services Defendant
The Magistrate Judge recommends that any claim against Defendant Clinical Services be
dismissed for failure to state a claim. The Court agrees with that recommendation.
Defendant Clinical Services was substituted as a party for Centurion Medical Services. The
only substantive allegation against Centurion could hardly be more conclsuory. All Plaintiffs allege

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is that “Centurion Medical Provider is responsible for the inability of the inmate population of
SCCF to access not only proper and appropriate medical care but also for the lack of correct
medication being handed out to those inmates.” (Complaint ¶ 60). This is far short of “enough to
raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). The fact that Plaintiffs argue in their Objections that they have been unable to have
complete the service packet as to Defendant Centurion does not detract from the fact that the claim
advanced is insufficient as a matter of law.
D. Conclusion
In light of the foregoing, the Court rules as follows:
(1) With respect to the Motion to Dismiss filed on behalf of the State Defendant (Docket No.
111) the R & R (Docket No. 119) is ACCEPTED insofar as it recommends dismissal of the claims
against TDOC and the claims for money damages against Defendants Schofield and Parker in their
official capacity. Those claims are hereby DISMISSED.
(2) With respect to the Partial Motion to Dismiss filed on behalf of the CCA Defendants
(Docket No. 83), the R & R (Docket No. 119) is ACCEPTED insofar as it recommends dismissal
of the claims against Defendants Chapman, Spears, and Hininger, and those claims are hereby
DISMISSED;
(3) The claims against Defendant Clinical Services (which was sued as Centurion Medical
Services) are hereby DISMISSED; and
(4) The Clerk shall term the following as pending; (a) the R & R (Docket No. 119); (b) the
Motions to Dismiss (Docket Nos. 83 and 111); and (c) Plaintiff’s Objections (Docket No.125).
This matter is hereby returned to the Magistrate Judge for further pretrial case management

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and a Report and Recommendation on any further dispositive motions.
It is SO ORDERED.

____________________________________
KEVIN H. SHARP
UNITED STATES DISTRICT JUDGE

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