Bennett v. Parker, et al.

Filing 11

MEMORANDUM OPINION OF THE COURT & ORDER Assessing Filing Fee for $350 Corey Alan Bennett. The Clerk is instructed to send the plaintiff a service packet (a blank summons and USM 285 form) for each defendant named in this action. The plaintiff w ill 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 packets, PROCESS SHALL ISSUE to the defendants. The Clerk is further instructe d 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 pay ment of the filing fee. Signed by District Judge Aleta A. Trauger on 10/13/17. (xc:Pro se party by regular mail. ) (Pro se party sent (20) service packets by regular mail.) (Warden of RMSI sent copy of order by regular mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
COREY BENNETT,
Plaintiff,
v.
TONY PARKER, et al.,
Defendants.

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No. 3:17-cv-1176
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, an application to proceed in forma pauperis (Docket Entry No. 2), a motion
(Docket Entry No. 3) for the appointment of counsel, a motion (Docket Entry No. 8) for an
emergency injunction, a motion (Docket Entry No. 9) for a fast and speedy ruling on the application
to proceed in forma pauperis, and a motion (Docket Entry No. 10) to review an earlier order
assigning plaintiff’s cases to a particular Magistrate Judge.
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 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 is being sexually assaulted and
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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
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
twelve members of the Riverbend staff (Carolyn Jones, Brandi McClure, Michael Sargunis, Ernest
Lewis, Celina Taylor, James Horton, Robert Mosley, Robert Bates, Mark Collins, Andrew Brown,
Bruce Westbrooks and Frank Heroux) and eight employees of the Tennessee Department of
Correction (Tony Parker, Donna Turner, Mandy Ellis, Tom Joplin, Rossi Jackson, Ramon Sherrell,
Nathan Miller and Samuel Roberts).

abused on an almost daily basis. Docket Entry No. 1 at 4. 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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According to the complaint, the plaintiff is “filing this against various TDOC prison officials
for allowing me to repeatedly be victimized and raped by Riverbend Warden Bruce Westbrooks.”
Docket Entry No. 1 at 4. The plaintiff claims that he was made to perform oral sex on the Warden
on nine separate occasions while the Warden anally raped him three times. Id.
The plaintiff has attempted to file grievances to complain about the sexual abuse he is
suffering but the Grievance Chairperson, Brandi McClure, allegedly refuses to process the
grievances. Id. The plaintiff also insists that he has repeatedly written to Ellis, Brown, Roberts,
Sherrell, Jackson, Miller, Turner and Parker about the sexual abuse “to no avail.” Id. at 5.
Defendants Joplin and Jordan have been made aware of the situation but they refuse to follow
appropriate procedures mandated by the Prison Rape Elimination Act. Id.
While on a visit to the prison in July, 2017, the plaintiff alleges that he informed defendants
Parker, Bates, Heroux, Ellis, Turner, Collins, Joplin, Lewis, Roberts, Brown and Sargunis about
what had been happening to him. Id. These defendants not only ignored the plaintiffs’ pleas for help,
but they “retaliated against me by directing Cpl. Taylor, Michael Sargunis and Mark Collins to come
to my cell and remove all my pen and paper, legal material and denied me access to it.” Id. at 6.
Taylor and Sargunis then “brutally beat me”, resulting in two black eyes, a “busted” eye socket, a
broken nose and a broken collarbone.” Id.
The attack was reported to Mosley, Horton and Heroux who refused to take any action
against plaintiff’s assailants or get him medical care. Id. The plaintiff describes a five day period
during which he was not allowed out of his cell, had no access to running water, was “butt-naked”
and was only fed once. Id.
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The plaintiff specifically alleges that has been sexually assaulted by Warden Westbrooks and
physically assaulted by Celina Taylor and Michael Sargunis. Such assaults by prison personnel are
actionable under § 1983. Freitas v. Ault, 109 F.3d 1335, 1338 (8th Cir. 1997). Therefore, the plaintiff
has stated a colorable claim for relief against these defendants.
The plaintiff claims that the remaining defendants were aware of the sexual abuse but took
no action to prevent it. 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 and physical abuse were reported to or
witnessed by the remaining defendants. The plaintiff claims that these defendants never acted upon
his charges. Because their alleged failure to investigate or act could, at this time, be construed as
possibly willful, these defendants should be required to answer the plaintiff’s claims.
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The complaint mentions the Prison Rape Elimination Act, 42 U.S.C. § 15601, et seq. Docket
Entry No. 1 at 5. 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 is hereby DISMISSED. 28 U.S.C. § 1915(e)(2);
Hill v. Hickman County Jail, 2015 WL 5009301 at 3 (M.D. Tenn.; 8/21/15).
The Clerk is instructed to send the plaintiff a service packet (a blank summons and USM 285
form) for each defendant named in this action. 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 packets, 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
any claim for the reasons set forth in 28 U.S.C. § 1915(e)(2).
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
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complies with that portion of the Prison Litigation Reform Act relating to the payment of the filing
fee.
The plaintiff has filed a motion (Docket Entry No. 3) for the appointment of counsel. Given
the plaintiff’s admission that he sometimes files frivolous lawsuits, the Court hesitates to grant such
a motion until he shows some factual support for his claims.2 Therefore, the motion for the
appointment of counsel is deemed to be premature and is DENIED for that reason. Of course, the
Court would entertain such a motion at a later date should there be a change in the plaintiff’s
circumstances.
The plaintiff has also filed a motion (Docket Entry No. 8) for an emergency injunction,
asking the Court for a transfer to another penal facility. For the reason noted above, this motion is
deemed to be premature until the plaintiff can show some factual support for his claims. This motion,
therefore, shall be left for the Magistrate Judge to consider.
Finally, the plaintiff has filed motions (Docket Entry Nos. 9 and 10) that seek a ruling on his
application to proceed in forma pauperis. Having now made such a ruling, the plaintiff’s motions
are DENIED as MOOT.
It is so ORDERED.
ENTER this 13th day of October 2017.
____________________________
Aleta A. Trauger
United States District Judge

See Bennett v. Brown, et al., No. 3:15-cv-0937 (M.D. Tenn.)(Haynes, S.J. presiding)
(case closed 3/1/16) (plaintiff testified at a hearing before Magistrate Judge Joe Brown that he
had mental health issues and that when he got frustrated, he coped with his frustrations by filing
frivolous lawsuits - Docket Entry No. 50 at 13).
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