Bennett v. Turner et al

Filing 4

MEMORANDUM AND ORDER: The plaintiff is herewith ASSESSED the civil filing fee of $350.00. The Clerk is instructed to send the plaintiff a service packet (a blank summons and USM 285 form) for each defendant remaining in this action (Sherrell, Turner, Jackson, Horton and Messenger). The plaintiff will complete the service packets and return them to the Clerk's Office within twenty one (21) days of the date of receipt of this order. Upon return of the service packet, PROCESS SHAL L ISSUE to the defendants. This action is REFERRED to the Magistrate Judge. Signed by District Judge Aleta A. Trauger on 7/28/2017. (xc:Pro se party by regular mail w/ 5 serv pkt. Custodian by regular 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
COREY ALAN BENNETT
Plaintiff,
v.
DONNA TURNER, et al.
Defendants.

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No. 3:17-cv-1061
Judge Trauger

MEMORANDUM AND ORDER

The Court is in receipt of a pro se prisoner complaint (Docket Entry No. 1) brought pursuant
to 42 U.S.C. § 1983, and an application to proceed in forma pauperis (Docket Entry No. 2).
The plaintiff is an inmate at the Riverbend Maximum Security Institution in Nashville. It
appears from his application that he lacks sufficient financial resources from which to pay the fee
required to file the complaint. Accordingly, the plaintiff’s application is GRANTED. The Clerk shall
file the complaint in forma pauperis. 28 U.S.C. § 1915(a).1
The plaintiff is herewith ASSESSED the civil filing fee of $350.00. Pursuant to 28 U.S.C.
§ 1915(b)(1)(A) and (B), the custodian of the plaintiff's inmate trust account at the institution where
he now resides is directed to submit to the Clerk of Court, as an initial partial payment, whichever

The plaintiff has accrued at least three strikes. See Corey Alan Bennett v. Tennessee
Department of Correction, et al., No. 3:14-2024 (M.D. Tenn.)(Campbell, J., presiding)(at Docket
Entry No. 7). In this instance, however, he has alleged that he has been sexually assaulted and
raped by numerous staff members and inmates over the past ninety days. Docket Entry No. 1 at 5.
The Court finds that this is sufficient to suggest an imminent danger of serious physical injury.
Therefore, the plaintiff may proceed as a pauper. 28 U.S.C. § 1915(g).
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is greater of:
(a)

twenty percent (20%) of the average monthly deposits to the plaintiff's inmate

trust account; or
(b)

twenty percent (20%) of the average monthly balance in the plaintiff's inmate

trust account for the prior six (6) months.
Thereafter, the custodian shall submit twenty percent (20%) of the plaintiff's preceding
monthly income (or income credited to the plaintiff's trust account for the preceding month), but only
when such monthly income exceeds ten dollars ($10.00), until the full filing fee of three hundred
fifty dollars ($350.00) as authorized under 28 U.S.C. § 1914(a) has been paid to the Clerk of Court.
28 U.S.C. § 1915(b)(2).
The plaintiff brings this action against twenty (20) defendants. These defendants include
thirteen members of the Riverbend staff (Tony Mays, Andrew Brown, Carolyn Jordan, Mark Collins,
Robert Bates, Robin Fish, Fred Schildkamp, Frank Heroux, James Horton, Michael Keathley, Robert
Mosley, Gregory Leonard and Kristopher Messenger) and seven employees of the Tennessee
Department of Correction (Donna Turner, Mandy Ellis, Tom Joplin, Ramon Sherrell, Nathan Miller,
Rossi Jackson and Samuel Roberts).
According to the complaint, the plaintiff has been sexually assaulted and raped by numerous
staff members and inmates over the past 90 days. Docket Entry No. 1 at 5. Some of the defendants
who have been designated to investigate such claims have either ignored them or retaliated against
the plaintiff for making the claims. Id.
The complaint describes how this type of claim should be investigated immediately with the
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findings of the investigation being turned over to the Tennessee Department of Correction and,
ultimately, to the local District Attorney for possible criminal prosecution. Id. at 7. The complaint
names a particular defendant, Ramon Sherrell, as having raped the plaintiff “with the Institutional
Investigator assisting him.” Id. The attack was reported to Donna Turner, the Director of
Investigations and Compliance for the Tennessee Department of Correction, who “refused to do
anything or hear me out.” Id.
The complaint describes another sexual assault by individuals who have not been named as
defendants, Id. at 8, and recounts the plaintiff’s efforts to have these assaults investigated by prison
officials. Id. at 7-8. The plaintiff wants the Federal Bureau of Investigation to investigate his claims
and forward them to a U.S. Attorney for prosecution.
As an initial matter, the plaintiff’s recitation of the facts never mentions the defendants, Tom
Joplin (PREA Coordinator for TDOC), Samuel Roberts (a TDOC investigator) and Tony Mays (a
Warden at Riverbend).2 In the absence of any factual allegations against these defendants, the
plaintiff has failed to state a claim against them. These defendants, therefore, are hereby
DISMISSED from this action. 28 U.S.C. § 1915(e)(2).
The plaintiff alleges that the defendants are liable for failing to properly investigate and
prosecute his claims of sexual assault. In this regard, he names members of the Sexual Abuse
Response Team at Riverbend (Carolyn Jordan, Mark Collins, Andrew Brown, Robin Fish, Fred
Schildkamp and Robert Bates), six shift commanders (Frank Heroux, James Horton, Michael

The plaintiff alleges that an institutional investigator assisted Ramon Sherrell when he
raped the plaintiff. Docket Entry No. 1 at 7. Samuel Roberts is a TDOC investigator. However,
the plaintiff does not identify who the investigator was that assisted in the rape.
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Keathley, Robert Mosley, Gregory Leonard and Kristopher Messenger), and members of the TDOC
Law Enforcement Unit (Ramon Sherrell, Rossi Jackson, Nathan Miller, Donna Turner and Mandy
Ellis) as defendants.
It is well settled that the plaintiff must allege the personal involvement of a defendant in the
alleged misconduct to state a claim under § 1983. Taylor v. Michigan Dept. of Corrections, 69 F.3d
76, 81 (6th Cir. 1995)(the plaintiff must allege facts showing that the defendant participated in,
condoned, encouraged, or knowingly acquiesced in the alleged misconduct). A showing of “direct
responsibility” for the misconduct is a prerequisite for liability. The mere failure to act, even in the
face of a statistical pattern of incidents of misconduct, is not enough to impose liability on a
defendant. Rizzo v. Goode, 423 U.S. 362, 376 (1976).
Nevertheless, a failure to investigate complaints or discipline officers can, under certain
circumstances, give rise to liability under § 1983. See Marchese v. Lucas, 758 F.2d 181, 188 (6th Cir.
1985), cert. denied, 480 U.S. 916 (1987). Such a circumstance arises when one can infer from a
willful failure or refusal to investigate that the defendants have ratified the unconstitutional behavior
and conditions leading up to an assault. Walker v. Norris, 917 F.2d 1449, 1457 (6th Cir. 1990).
According to the complaint, specific acts of sexual abuse were reported to Donna Turner
(Docket Entry No. 1 at 7), Rossi Jackson (Id.), James Horton (Id. at 8) and Kristopher Messenger
(Id.). The plaintiff claims that these defendants never acted upon his charges. Because their alleged
failure to investigate could, at this time, be construed as possibly willful, these defendants should
be required to answer the plaintiff’s claims. There are no allegations of personal involvement or
willful misconduct on the part of the remaining defendants in this group. Therefore, the claims
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against Mandy Ellis, Nathan Miller, Andrew Brown, Carolyn Jordan, Mark Collins, Robert Bates,
Robin Fish, Fred Schildkamp, Frank Heroux, Michael Keathley, Robert Mosley and Gregory
Leonard are also DISMISSED. 28 U.S.C. § 1915(e)(2).
The plaintiff alleges that the defendant, Ramon Sherrell, raped him on June 18, 2017. Docket
Entry No. 1 at 7. A sexual assault by a guard on a prisoner is actionable under § 1983. Freitas v.
Ault, 109 F.3d 1335, 1338 (8th Cir. 1997). Therefore, this defendant shall remain in the lawsuit at
this time.
The Clerk is instructed to send the plaintiff a service packet (a blank summons and USM 285
form) for each defendant remaining in this action (Sherrell, Turner, Jackson, Horton and Messenger).
The plaintiff will complete the service packets and return them to the Clerk’s Office within twenty
one (21) days of the date of receipt of this order. Upon return of the service packet, PROCESS
SHALL ISSUE to the defendants.
The plaintiff is forewarned that the failure to return the completed service packets within the
time required could jeopardize his prosecution of this action. He is also forewarned that his
prosecution of this action will be jeopardized should he fail to keep the Clerk’s Office informed of
his current address.
This action is REFERRED to the Magistrate Judge to enter a scheduling order for the
management of the case, to dispose or recommend disposition of any pretrial motions under 28
U.S.C. §§ 636(b)(1)(A) and (B), and to conduct further proceedings, if necessary, under Rule 72(b),
Fed.R.Civ.P., and the Local Rules of Court. The Magistrate Judge may recommend the dismissal of

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any claim for the reasons set forth in 28 U.S.C. § 1915(e)(2).3
The Clerk is further instructed to send a copy of this order to the Warden of the Riverbend
Maximum Security Institution to ensure that the custodian of the plaintiff's inmate trust account
complies with that portion of the Prison Litigation Reform Act relating to the payment of the filing
fee.
It is so ORDERED.
Enter this 28th day of July 2017.

____________________________
Aleta A. Trauger
United States District Judge

In the complaint, the plaintiff mentions the Prison Rape Elimination Act, 42 U.S.C. §
15601, et seq. Although not yet addressed by the Sixth Circuit, several district courts have
recognized that this statute does not create a private cause of action. See Montgomery v. Harper,
2014 WL 4104163 at 2 (W.D. Ky.; 8/19/14). To the extent that the complaint might be construed
as bringing a claim under this statute, such a claim must be dismissed. Hill v. Hickman County
Jail, 2015 WL 5009301 at 3 (M.D. Tenn.; 8/21/15).
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