Bennett v. Henry et al
Filing
39
MEMORANDUM OPINION OF THE COURT signed by Magistrate Judge Joe Brown on 1/12/2015. (xc: Pro se party by regular and certified mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.) (ds)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
COREY ALAN BENNETT,
Plaintiff,
v.
CORPORAL [F/N/U] HENRY,
WARDEN CHARLES CARPENTER, and
INTERNAL AFFAIRS INVESTIGATOR
MICHAEL KEYS,
Defendants.
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No. 3:14 cv 01958
Judge Campbell / Brown
M E M O R A N D U M
By order entered October 22, 2014, this matter was referred to
the
undersigned
for
case
management
and
resolution
of
non-
dispositive motions.
The Plaintiff, a prisoner who proceeds pro se and in forma
pauperis, filed his initial complaint in this action on October 8,
2014, asserting claims under 42 U.S.C. § 1983. Although the
Plaintiff is a three-striker subject to the restrictions imposed by
28 U.S.C. § 1915(g), the claims in his original complaint were
permitted to proceed on the grounds that he alleged imminent danger
of serious physical injury.
On December 3, 2014, the Plaintiff filed his first motion to
amend his complaint, which the undersigned denied. Now before the
Court is Plaintiff’s renewed motion to amend his complaint to add
two new defendants to this case, Unit Manager Christie Thomas and
Captain Frank Herouix, both of whom are alleged to be employed at
Riverbend Maximum Security Institution (“RMSI”), where the incident
that is the subject of the Plaintiff’s original complaint occurred.
For the reasons set forth herein, the motion to amend (ECF No.
20) will be GRANTED IN PART and DENIED IN PART. Specifically, the
Plaintiff will be permitted to amend his complaint to add Christie
Thomas as a defendant.
The Magistrate Judge notes that the Plaintiff’s previous
motion to amend his complaint was denied on the basis that the
Plaintiff, a three-striker who is subject to the provisions of 28
U.S.C. § 1915(g), did not allege that he was in imminent danger of
serious physical injury from the individuals he sought to add as
defendants. (ECF No. 17, at 2.) The Plaintiff’s new amendment now
seeks to state claims of imminent danger at the hands of the new
defendants. He cannot do so, because he is no longer housed at RMSI
and therefore is no longer under a threat of harm from these
defendants, if he ever was.
However,
the
Magistrate
Judge
reconsiders
his
original
conclusion that the Plaintiff was required to allege imminent
danger from the defendants sought to be added to the complaint. The
appellate courts that have considered the issue have uniformly held
that a prisoner with three strikes who adequately alleges imminent
danger can, in the same suit, proceed in forma pauperis on other
claims that do not have a nexus to imminent danger. See, e.g.,
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Chavis v. Chappius, 618 F.3d 162, 171–72 (2d Cir. 2010) (citing
Andrews v. Cervantes, 493 F.3d 1047, 1054 (9th Cir. 2007); Ibrahim
v.
District
of
Columbia,
463
F.3d
3,
5–7
(D.C.
Cir.
2006);
Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003); Gibbs v.
Roman, 116 F.3d 83, 87 n.7 (3d Cir. 1997), overruled on other
grounds by
Abdul-Akbar v. McKelvie, 239 F.3d 307 (3d Cir. 2001)
(en banc)).
The Sixth Circuit appears not to have addressed this issue
directly, but has acknowledged that both the Second and Ninth
Circuits have rejected a “nexus” requirement. See Vandiver v.
Prison Health Servs., Inc., 727 F.3d 580, 588 (6th Cir. 2013)
(declining
“to
reach
whether
§
1915(g)
incorporates
a
nexus
requirement,” because the defendant would not prevail even if it
did, but noting that “the Second Circuit has held that once a
plaintiff establishes a nexus between one of his claims and the
imminent anger he is alleging, he may proceed with his entire
action”). The Magistrate Judge finds it likely that the Sixth
Circuit would adopt the same standard if confronted with the issue,
and further finds that there is no effective difference between, on
the one hand, allowing a three-striker to pursue all the claims
asserted in his original complaint (as long as they actually state
a colorable claim) even when they have no nexus with the alleged
“imminent danger” and, on the other, permitting the same plaintiff
to amend his complaint to assert similar claims. In other words,
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once a plaintiff who is subject to § 1915(g) has been permitted to
pursue his action in forma pauperis based on an allegation of
imminent danger, the action should be treated like any other pro se
prisoner’s action.
Which brings the Magistrate Judge back to the question of
whether the Plaintiff here should be permitted to amend his
complaint. Generally speaking, a motion to amend a complaint should
be “freely” granted “when justice so requires.” Fed. R. Civ. P.
15(a)(2). However, because the Plaintiff is a prisoner who proceeds
in forma pauperis, his motion to amend his complaint is also
subject to the limitations imposed by the Prison Litigation Reform
Act,
28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c). The
operative question, accordingly, is whether the claims in the
proposed amendment fail to state a claim upon which relief can be
granted, are frivolous, or seek monetary relief from a defendant
who is immune from such relief. If the proposed amended complaint
could not withstand a Rule 12(b)(6) motion, the motion to amend
should be denied. Massengill v. Ohio Adult Parole Auth., 28 F.
App’x 510, 511 (6th Cir. 2002)
As noted above, the Plaintiff seeks to add as defendants Unit
Manager Christie Thomas and Captain Frank Herouix. The Plaintiff
states that he seeks to add Thomas
because of the daily threats she has made against me and
the fact that she has allowed officers to do stuff to me
just like she allowed visine eye drops to be put in my
food tray and then came told me about it today and told
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me I better not eat my food if I don’t wanna die.
(ECF No. 20, at 2.) Although threats alone are not generally not
sufficient to give rise to a claim of constitutional dimension, see
Ivey v. Wilson, 832 F.2d 950, 955 (6th Cir. 1987), the allegations
that Thomas was actively involved in contaminating the Plaintiff’s
food, and told him about it, which the Court must accept as true at
this juncture, state a colorable claim against Thomas for violation
of Plaintiff’s right to be free of excessive force and the use of
cruel and unusual punishment. The Magistrate Judge expresses no
opinion as to the ultimate merit of these claims, but will permit
the Plaintiff to amend his complaint to add Christie Thomas as a
defendant.
Regarding Captain Herouix, the Plaintiff states that the
incident giving rise to the claims in the original complaint in
this action were “reported to” Herouix, because he was shift
commander, but Herouix did nothing about this matter and “since
then . . . has made numerous threats towards me and has approached
gang members to get them to attempt to seek retaliation against
me.” (Id.)
The Magistrate Judge finds that these allegations fail to
state a claim of constitutional dimension against Herouix. First,
to establish the liability of any individual defendant under 42
U.S.C. § 1983, a plaintiff must show that that particular defendant
was personally involved in the activities giving rise to the
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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, 926
F.2d 532, 535 (6th Cir. 1991)). Moreover, a failure to act upon a
report or a grievance does not give rise to liability. See, e.g.,
LaFlame v. Montgomery Cnty. Sheriff’s Dep’t, 3 F. App’x 346, 348
(6th Cir. 2001) (holding that plaintiff’s allegation that jail
staff ignored the grievances he filed did not state a § 1983 claim
“because there is no inherent constitutional right to an effective
prison grievance procedure”). Thus, the Plaintiff’s allegations
that Herouix failed to respond to the Plaintiff’s reports of
alleged wrongdoing by other prison officials do not state
a claim
for which relief may be granted under 42 U.S.C. § 1983.
The Plaintiff’s allegations that Herouix “threatened” him fail
to state a claim for which relief may be granted, because “a mere
threat is not a constitutional violation.” Proctor v. Applegate,
661 F. Supp. 2d 743, 775 (E.D. Mich. 2009) (citing Emmons v.
McLaughlin, 874 F.2d 351, 353 (6th Cir. 1989) (federal right must
be actually denied, not merely threatened); Ivey v. Wilson, 832
F.2d 950, 954–55 (6th Cir. 1987) (claim of verbal abuse is not
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cognizable under § 1983)). Likewise, even if Herouix attempted to
goad “gangmembers” into “retaliating” against the Plaintiff, the
Plaintiff fails to allege any harm arising from such alleged
attempts, and the Plaintiff has since then been transferred to
another prison, thus obviating the risk of harm. These allegations
therefore fail to state a claim of constitutional dimension against
Herouix. The Plaintiff’s motion to amend his complaint to add
Herouix as a defendant will be denied on the basis that the
proposed amendment fails to state a claim for which relief may be
granted.
An appropriate order is filed herewith.
/s/ Joe B. Brown
JOE B. BROWN
United States Magistrate Judge
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