Bowers v. Power et al
MEMORANDUM OPINION OF THE COURT. Signed by Chief Judge Waverly D. Crenshaw, Jr on 4/16/18. (xc:Pro se party by regular mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(gb)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
DYLAN C. BOWERS,
JACGULINE POWER, et al.,
CHIEF JUDGE CRENSHAW
Dylan C. Bowers, an inmate of the Metro-Davidson County Detention Facility in Nashville,
Tennessee, brings this pro se, in forma pauperis action under 42 U.S.C. § 1983 against Core Civic
R-Dap Program Manager Jacguline Power, Core Civic Unit Manager Darryl Jones, Core Civic
Correctional Officer Jacob Jarrail Lowe, Core Civic Head Warden Blair Lebach, and Core Civic,
alleging violations of the Plaintiff’s federal constitutional and civil rights. (Doc. No. 1). The
Plaintiff also has filed a motion to amend his complaint (Doc. No. 6) and a motion for the
appointment of counsel (Doc. No. 13).
The complaint is before the Court for an initial review pursuant to the Prison Litigation
Reform Act (“PLRA”), 28 U.S.C. §§ 1915(e)(2) and 1915A.
Motion to Amend
The Plaintiff has filed an amended complaint, which the Court construes as a motion to
amend the complaint. (Doc. No. 6). Rule 15(a) (2) of the Federal Rules of Civil Procedure states
that leave to amend should be freely given “when justice so requires.” In deciding whether to grant
a motion to amend, courts should consider undue delay in filing, lack of notice to the opposing party,
bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue
prejudice to the opposing party, and futility of amendment. Brumbalough v. Camelot Care Ctrs.,
Inc., 427 F.3d 996, 1001 (6th Cir. 2005).
The proposed amendments to the complaint provide additional context for the claims raised
in the original complaint. No new Defendants or claims are added. There appears to be no undue
prejudice to the opposing party by permitting the Plaintiff to amend his complaint at this time; the
Defendants have not been served. The Court therefore will grant the motion to amend and screen
the original complaint, as informed by the Plaintiff’s proposed amendments to the original
complaint, pursuant to the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. §§ 1915(e)(2) and
Motion for the Appointment of Counsel
The Plaintiff recently filed a motion requesting the appointment of counsel “to represent the
Plaintiff in this matter, for discovery purposes as well as for the evidentiary hearing that this
Honorable District Court might (and for which the Plaintiff prays that it does) order, for the interests
of justice so require that such is ordered.” (Doc. No. 13 at 4). He states that he is unable to afford
an attorney, he needs an attorney to assist him with an evidentiary hearing and discovery in this case,
and his imprisonment limits his ability to litigate effectively because the facility in which the
Plaintiff is presently incarcerated “does not provide for direct access to legal materials.” (Id. at 2-3).
According to the Plaintiff, in lieu of direct access to legal materials, inmates at the Metro-Davidson
County Detention Facility have access to contractual services provided by a “CCA” attorney;
however, “the CCA Contractual Attorney is not authorized to provide meaningful and/or expert
services to the Plaintiff, thus warranting and necessitating the appointment of counsel.” (Id. at 2).
The Plaintiff cites to a “Confidential Request for Attorney Conference specifying the services
provided by the CCA Contractual Attorney, Form 14-8A (Revised 4/1/98)” but no such form is
attached to his motion. (Id. at 2-3 n.1).
The Supreme Court has held that “an indigent’s right to appointed counsel . . . exists only
where the litigant may lose his physical liberty if he loses the litigation.” Lassiter v. Dep’t of Social
Servs., 452 U.S. 18, 25 (1981). Thus, unlike criminal proceedings, there is no constitutional right
to an appointed counsel in a civil action, such as this action. Willett v. Wells, 469 F. Supp. 748, 751
(E.D. Tenn. 1977), aff’d, 595 F.2d 1227 (6th Cir. 1979); Williamson v. Autorama, Inc., No. 91-5759,
947 F.2d 947 (6th Cir. 1991)(citing Willett favorably). The appointment of counsel for a civil litigant
is a matter within the discretion of the district court and will occur only under exceptional
circumstances. Lavado v. Keohane, 992 F.2d 601, 604-05 (6th Cir. 1993).
The Plaintiff’s circumstances as described are typical to most prisoners. See Murray v.
Giarratano, 492 U.S. 1, 7 (1989) (pro se litigant); Richmond v. Settles, 450 Fed. App’x 448, 452-53
(6th Cir. 2011) (indigent litigant); Debow v. Bell, No. 3:10-cv-1003, 2010 WL 5211611, at *1 (M.D.
Tenn. Dec. 15, 2010) (inmates are typically indigent and untrained, pro se litigants). However, the
Plaintiff’s contention that inmates at his facility are not provided access to legal materials gives the
The Plaintiff specifically asks for the appointment of counsel with respect to
discovery and an evidentiary hearing in this case. At this time, discovery has not commenced and
no evidentiary hearing is scheduled. The Plaintiff has filed a complaint (Doc. No. 1), an application
to proceed in forma pauperis (Doc. No. 7), an amended complaint (Doc. No. 6), a motion for the
appointment of counsel (Doc. No. 13), and seven letters to the Court (Doc. Nos. 3, 5, 8, 9, 10, 11,
12); he is effectively representing his own interests to date. Therefore, at this time the Court will
deny the Plaintiff’s motion for the appointment of counsel without prejudice to the Plaintiff’s ability
to refile the motion at the appropriate time. If the Plaintiff refiles his motion, he should provide the
Court with more information regarding the lack of inmate access to legal materials as well as the
Form 14-8A referenced in his instant motion to appoint counsel.
PLRA Screening Standard
Under 28 U.S.C. § 1915(e)(2)(B), the Court must dismiss any portion of a civil complaint
filed in forma pauperis that fails to state a claim upon which relief can be granted, is frivolous, or
seeks monetary relief from a defendant who is immune from such relief. Section 1915A similarly
requires initial review of any “complaint in a civil action in which a prisoner seeks redress from a
governmental entity or officer or employee of a governmental entity,” id. § 1915A(a), and summary
dismissal of the complaint on the same grounds as those articulated in § 1915(e)(2)(B). Id. §
The Sixth Circuit has confirmed that the dismissal standard articulated by the Supreme Court
in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007),
“governs dismissals for failure to state a claim under those statutes because the relevant statutory
language tracks the language in Rule 12(b)(6).” Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir.
2010). Thus, to survive scrutiny on initial review, “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at
678 (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “[A] district court must (1) view
the complaint in the light most favorable to the plaintiff and (2) take all well-pleaded factual
allegations as true.” Tackett v. M & G Polymers, USA, LLC, 561F.3d 478, 488 (6th Cir. 2009)
(citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (citations omitted)).
Although pro se pleadings are to be held to a less stringent standard than formal pleadings
drafted by lawyers, Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Jourdan v. Jabe, 951 F.2d 108,
110 (6th Cir. 1991), the courts’ “duty to be ‘less stringent’ with pro se complaints does not require
us to conjure up [unpleaded] allegations.” McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979)
Section 1983 Standard
Plaintiff brings his complaint pursuant to 42 U.S.C. § 1983. Title 42 U.S.C. § 1983 creates
a cause of action against any person who, acting under color of state law, abridges “rights,
privileges, or immunities secured by the Constitution and laws . . . .” To state a claim under § 1983,
a plaintiff must allege and show two elements: (1) that he was deprived of a right secured by the
Constitution or laws of the United States; and (2) that the deprivation was caused by a person acting
under color of state law. Tahfs v. Proctor, 316 F.3d 584, 590 (6th Cir. 2003); 42 U.S.C. § 1983.
The complaint as amended alleges that the Defendants have retaliated, and are still
retaliating, against the Plaintiff for filing inmate grievances at the Metro-Davidson County Detention
Facility. According to the complaint, the retaliation consists of placing the Plaintiff in a segregation
“torture cell” for two days with no access to the telephone or the courts as well as being “physically
and sexually abused.” (Docket No. 1 at 5, 9). According to the complaint, the cell had blood and
feces smeared on the walls, no bed or bedding, no toilet paper, no water to wash hands, sewage
leaking from the pipe under the toilet, and a three-inch crack in the wall of the foundation which
allowed the outside air to enter. (Id. at 5).
The complaint also alleges that Warden Leibach told the Plaintiff “in a threatening manner”
to “stop filing informals on [his] staff and stop harassing and threatening to sue my staff and if you
don’t I’ll hide you away myself . . . .” (Id.)
The complaint further alleges that Plaintiff was
ordered by a state court judge to participate in the R-Dap program but that the Defendants removed
the Plaintiff from the program in retaliation for the grievances he has filed and continues to file. (Id.
Finally, the complaint alleges that, on November 28, 2017, the Plaintiff was brutally
assaulted by an unidentified assailant. According to the complaint, the assault could have been
stopped by Lowe, the officer assigned to the Plaintiff’s unit, but Lowe refused to intervene. (Id. at
The complaint alleges that the Defendants retaliated against the Plaintiff because he filed
inmate grievances. A prisoner's claim that prison officials have retaliated against him for engaging
in protected conduct is grounded in the First Amendment. Thaddeus-X v. Blatter, 175 F.3d 378, 388
(6th Cir. 1999). To establish a prima facie case of retaliation within the context of § 1983, a plaintiff
must prove that: (1) he engaged in protected conduct; (2) an adverse action was taken against him
that would deter a person of ordinary firmness from continuing to engage in that conduct; and (3)
the defendant’s conduct was substantially motivated at least in part by retaliation for the plaintiff’s
protected speech and conduct. Id. at 394-99. In addition to proving a retaliatory motive, the
plaintiff must establish that the alleged discriminatory action was punitive in nature by showing
other than de minimis harm resulting from it. See Ingraham v. Wright, 430 U.S. 651, 674 (1977);
Thaddeus-X, 175 F.3d at 396. Filing grievances through an inmate grievance process is protected
conduct. See Herron v. Harrison, 203 F.3d 410, 415 (6th Cir. 2000).
First, the complaint
specifically alleges that the Defendants retaliated against the Plaintiff for filing grievances by
placing him in segregation or a restricted housing unit. However, even if this allegation is true,
inmates do not have a liberty interest in a particular security classification or in freedom from
segregation. Miller v. Campbell, 108 F. Supp.2d 960, 963 (W.D. Tenn. 2000)(citations omitted).
The Supreme Court long has held that the Due Process Clause does not protect every change in the
conditions of confinement having an impact on a prisoner. See Meachum v. Fano, 427 U.S. 215,
225 (1976). In Sandin v. Conner, 515 U.S. 472, 484 (1995), the Court set forth the standard for
determining when a prisoner's loss of liberty implicates a federally cognizable liberty interest
protected by the Due Process Clause. According to the Sandin Court, a prisoner is entitled to the
protections of due process only when a deprivation “will inevitably affect the duration of his
sentence” or imposes an “atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life.” Sandin, 515 U.S. at 486-87; see also Jones v. Baker, 155 F.3d 810, 812 (6th
Cir. 1998); Rimmer-Bey v. Brown, 62 F.3d 789, 790-91 (6th Cir. 1995).
Confinement in segregation “is the sort of confinement that inmates should reasonably
anticipate receiving at some point in their incarceration.” Hewitt v. Helms, 459 U.S. 460, 467-73
(1983). Thus, it is considered atypical and significant only in “extreme circumstances.” Joseph v.
Curtin, 410 Fed.Appx. 865, 868 (6th Cir. 2010). Generally, courts will consider the nature and
duration of a stay in segregation to determine whether it imposes an “atypical and significant
hardship.” Harden–Bey v. Rutter, 524 F.3d 789, 794 (6th Cir. 2008). In Sandin, the Supreme Court
concluded that the segregation at issue in that case (disciplinary segregation for 30 days) did not
impose an atypical and significant hardship. Sandin, 515 U.S. at 484. Similarly, the Sixth Circuit
has held that placement in administrative segregation for a relatively short period of time does not
require the protections of due process. Rimmer-Bey, 62 F.3d at 790-91; see Joseph v. Curtin, 410
Fed.Appx. 865, 868 (6th Cir. 2010) (61 days in segregation is not atypical and significant). The
Sixth Circuit also has held, in specific circumstances, that confinement in segregation for a relatively
long period of time does not implicate a liberty interest. See, e.g., Baker, 155 F.3d at 812-23 (two
years of segregation while the inmate was investigated for the murder of a prison guard in a riot);
Mackey v. Dyke, 111 F.3d 460 (6th Cir. 1997) (one year of segregation following convictions for
possession of illegal contraband and assault, including a 117-day delay in reclassification due to
prison crowding). But cf. Selby v. Caruso, 734 F.3d 554, 559 (6th Cir. 2013) (13 years of
segregation implicates a liberty interest); Harden-Bey, 524 F.3d at 795 (remanding to the district
court to consider whether the plaintiff's allegedly “indefinite” period of segregation, i.e., three years
without an explanation from prison officials, implicates a liberty interest); Harris v. Caruso, 465
Fed.Appx. 481, 484 (6th Cir. 2012) (eight years of segregation implicates a liberty interest). Based
on these cases, the Court finds that the Plaintiff’s two day period of segregation does not constitute
“an atypical and significant hardship on the inmate in relation to the ordinary incidents of prison
life.” Sandin, 515 U.S. at 486-87. The complaint does not allege that the two days he served in
segregation impacted the duration of the Plaintiff’s sentence.
The complaint also alleges that the Defendants retaliated against the Plaintiff by removing
him from a court-ordered R-Dap program. However, prisoners have no constitutionally cognizable
right to participate in rehabilitative or educational programs. See Rhodes v. Chapman, 452 U.S. 337,
348 (1981); Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976); Canterino v. Wilson, 869 F.2d 948, 95254 (6th Cir. 1989); Kenner v. Martin, 648 F.2d 1080, 1081 (6th Cir. 1981)(per curiam); Carter v.
Corrs. Corp. of Am., No. 98-6336, 1999 WL 427352, at *1 (6th Cir. June 15, 1999). Thus, even
assuming that the Defendants in fact removed the Plaintiff from the R-Dap program in retaliation
for filing grievances, because the Plaintiff has no constitutional right to participate in the R-Dap
program, the Plaintiff cannot establish that the alleged retaliatory action by the Defendants caused
the Plaintiff more than de minimus harm. See Ingraham, 430 U.S. at 674; Thaddeus-X, 175 F.3d
at 396. Thus, the complaint fails to state a retaliation claim based on the Plaintiff’s removal from
the R-Dap program.
Finally, the complaint alleges that Warden Leibach acting in his individual capacity
threatened the Plaintiff that, if he did not stop filing grievances or “informals on [Leibach’s] staff,”
Leibach was going to “hide [the Plaintiff] away.” (Doc. No. 1 at 5). Attached to the Plaintiff’s most
recent letter to the Court is a memorandum to the Plaintiff from Bobby Aylward, “Quality Assurance
Manager,” signed by Leibach on January 8, 2018, notifying the Plaintiff that his grievance privileges
have been temporarily suspended. (Doc. No. 12 at 2). The reason given for the suspension is that
the Plaintiff filed ten grievances between the dates of December 28, 2017, and January 4, 2018,
which Leibach deemed “excessive.” (Id.) Indeed, an excerpt from an unidentified source cited in
the letter states:
If it is determined by the Warden/Administrator that an
inmate/resident is deliberately abusing the grievance system through
excessive filing of grievances and/or repeated refusal to follow
procedures, the Warden/Administrator may suspend the filing of
additional grievances until all pending grievances have been
resolved. The Warden/Administrator will provide the inmate/resident
with written documentation of the suspension.
Applying Thaddeus-X, 175 F.3d at 388, the Court finds that the complaint alleges that the
Plaintiff has engaged in protected conduct by filing inmate grievances; that, by temporarily spending
the Plaintiff’s grievance privileges and by threatening to “hide” the Plaintiff if he continued to file
grievances, Leibach has taken an adverse action against the Plaintiff that would deter a person of
ordinary firmness from continuing to engage in that conduct; and the complaint alleges that
Leibach’s conduct was substantially motivated at least in part by retaliation for the plaintiff’s
protected speech and conduct. Id. at 394-99. In addition to alleging a retaliatory motive, the
complaint alleges that Leibach’s alleged discriminatory action was punitive and resulted in more
than de minimis harm to the Plaintiff. See Ingraham, 430 U.S. at 674; Thaddeus-X, 175 F.3d at 396.
Consequently, the Court finds that the allegations of the complaint against Warden Leibach state an
actionable retaliation claim against Leibach in his individual capacity. It is unclear whether the
Plaintiff ultimately will prevail on this claim, but the Court finds that further development of the
claim is warranted, especially given the recent ban on the Plaintiff’s grievance privileges.
Cruel and unusual punishment claims
The complaint alleges that the cell in which the Plaintiff was placed for two days of
segregation had blood and feces smeared on the walls; that the Plaintiff was not provided with any
bedding, a bed, toilet paper, or water to wash his hands; that there was sewage leaking from the pipe
under the toilet and a three-inch crack in the foundation which allowed outside air to enter the cell;
and that the Plaintiff was “physically and sexually abused.” (Doc. No. 1 at 5).
The Constitution does not protect a prisoner from unpleasant prison experiences. Ivey v.
Wilson, 832 F.2d 950, 954 (6th Cir. 1987). Nor does the Constitution mandate comfortable
conditions of confinement. Rhodes v. Chapman, 452 U.S. 337, 101 S. Ct. 2400, 69 L.Ed.2d 59
(1981). However, the Eighth Amendment of the United States Constitution imposes an obligation
to provide prisoners with reasonably adequate food, clothing, shelter, sanitation, recreation, and
medical care. Grubbs v. Bradley, 552 F. Supp. 1052, 1119-1124 (M.D. Tenn. 1982). The failure
to provide such necessities is a violation of an inmate’s right to be free from cruel and unusual
punishment. Bellamy v. Bradley, 729 F.2d 416 (6th Cir. 1984).
Construed liberally, the pro se complaint alleges that the conditions of the Plaintiff’s two day
segregation constituted cruel and unusual punishment in violation of the Eighth Amendment.
However, with respect to the conditions of his confinement, the Plaintiff has not claimed any injury
or harm as a result of the alleged admittedly unpleasant conditions. Without an allegation of injury
or harm, a plaintiff does not state a viable Eighth Amendment claim. See Moore v. Merchant, No.
5:13CV-P81-R, 2013 WL 6590395, at *4 (W.D. Ky. Dec. 16, 2013)(finding that, “[i]n any event,
Merchant does not allege that he was subjected to any physical injury as a result of the actual
conditions in the segregated housing unit, and 42 U.S.C. § 1997e(e) precludes any claim by a
prisoner ‘for mental or emotional injury suffered while in custody without a prior showing of
physical injury.’”). Furthermore, “not every unpleasant experience a prisoner might endure while
incarcerated constitutes cruel and unusual punishment within the meaning of the Eighth
Amendment.” Ivey v. Wilson, 832 F. 2d 950, 954 (6th Cir. 1987).
Even if the Plaintiff was deprived of telephone usage during his two day segregation period
(Doc. No. 1 at 5), the Sixth Circuit has held that, without a showing that basic human needs were
not met, the denial of privileges as a result of segregation cannot establish an Eighth Amendment
violation. See Evans v. Vinson, 427 Fed.Appx. 437, 443 (6th Cir. 2011); Harden-Bey v. Rutter, 524
F.3d 789, 795 (6th Cir. 2008). As the Supreme Court explained in Overton v. Bazzetta, 539 U.S.
126, 132, 123 S. Ct. 2162, 156 L.Ed.2d 162 (2003), a case where it rejected a First Amendment
challenge to the prison's denial of visitation, some curtailment of the freedom to associate with
family and friends is expected in the prison setting:
The very object of imprisonment is confinement. Many of the
liberties and privileges enjoyed by other citizens must be surrendered
by the prisoner. An inmate does not retain rights inconsistent with
proper incarceration. And, as our cases have established, freedom of
association is among the rights least compatible with incarceration.
Some curtailment of that freedom must be expected in the prison
Id. at 131 (internal citations omitted). Thus, the Court finds that the Plaintiff’s allegations fail to
demonstrate that the restrictions on telephone usage as described in the complaint unreasonably
restricted or impaired the Plaintiff’s constitutional right to communicate with family and friends.
Consequently, the Court finds that the complaint fails to states colorable Eighth Amendment claims
based on the allegations pertaining to the conditions of the Plaintiff’s confinement in segregation.
These claims will be dismissed. 28 U.S.C. § 1915A.
However, with respect to the Plaintiff’s allegations of physical and sexual abuse, no prisoner
is required to endure such experiences. Nonetheless, the complaint fails to provide any details
regarding the alleged physical and sexual abuse. The complaint does not identify the alleged
perpetrators of the abuse. A plaintiff must identify the right or privilege that was violated and the
role of the defendant in the alleged violation. Miller v. Calhoun Cnty., 408 F.3d 803, 827 n.3 (6th
Cir. 2005); Dunn v. Tennessee, 697 F.2d 121, 128 (6th Cir. 1982). The Court is not required “to
conjure up [unpleaded] allegations.” McDonald, 610 F.2d 16, 19. Without more, the Court cannot
permit this claim to go forward. However, the Plaintiff will be permitted to amend his complaint
in a timely manner for the purpose of fleshing out this particular claim, should he so desire.
Access to courts claims
The complaint alleges that during the Plaintiff’s two day segregation, he was denied access
to the courts. (Doc. No. 1 at 5). The law is well settled that a prisoner has a First Amendment right
of access to the courts. Bounds v. Smith, 430 U.S. 817, 821-823 (1977). The right of access to the
courts requires prison officials to ensure that inmates have access to the courts that is “adequate,
effective and meaningful.” Id. at 822. However, it is not enough for a plaintiff simply to claim that
he was denied access to the courts. To state a claim on which relief may be granted, a plaintiff must
show that a defendant’s conduct in some way prejudiced the filing or prosecution of a legal matter.
Walker, 771 F.2d at 932; Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996).
Here, the Plaintiff has not alleged that he has been prejudiced in filing this instant lawsuit
or has suffered any litigation related detriment to either this case or another case. In fact, in this case
alone the Plaintiff has submitted a complaint (Doc. No. 1), an application to proceed in forma
pauperis (Doc. No. 7), an amended complaint (Doc. No. 6), a motion for the appointment of counsel
(Doc. No. 13), and seven letters to the Court (Doc. Nos. 3, 5, 8, 9, 10, 11, 12). Because the Plaintiff
has not shown that he sustained an actual injury in his efforts to litigate, any access to courts claim
fails to state a claim upon which relief may be granted.
Failure to protect or intervene claims
The Eighth Amendment to the United States Constitution requires officers to "take
reasonable measures to guarantee the safety of the inmates." Farmer v. Brennan, 511 U.S. 825, 832
(1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526–527, 104 S. Ct. 3194, 82 L.Ed.2d 393 (1984)).
Although prison officials have a duty to protect prisoners from assault by other prisoners, the
Supreme Court has recognized that jail and prison officials cannot be expected to prevent every
assault before it occurs or to stop every assault in progress before injuries are inflicted. Thus, “a
prison official may be held liable under the Eighth Amendment . . . only if he knows that inmates
face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures
to abate it.” Farmer, 511 U.S. at 847. That is, the inmate must show both that the risk of harm is
sufficiently “serious,” an objective inquiry, and that prison officials acted with “deliberate
indifference” to inmate health or safety, a subjective inquiry. Id. at 837-38; Helling v. McKinney,
509 U.S. 25, 32, 113 S. Ct. 2475, 125 L.Ed.2d 22 (1993). Thus, “a prison official may be held
liable under the Eighth Amendment . . . only if he knows that inmates face a substantial risk of
serious harm and disregards that risk by failing to take reasonable measures to abate it.” Farmer,
511 U.S. at 847.
The Plaintiff’s failure to protect claim is based upon the Plaintiff’s allegation that
Corrections Officer Lowe failed to take any action to intervene and protect the Plaintiff from a
“brutal attack” by an unidentified assailant on November 28, 2017. However, the complaint fails
to allege that Lowe had prior knowledge that the Plaintiff was at a substantial risk of serious harm
or that Lowe acted with deliberate indifference to any such risk. Id. at 837-38 (the inmate must
show both that the risk of harm is sufficiently “serious” and that the prison officials acted with
“deliberate indifference” to inmate health or safety).
While the exact contours of what action is constitutionally required of a guard who witnesses
an on-going fight among inmates is not clearly defined, the Sixth Circuit has held that prison guards
have no constitutional duty to intervene in an armed assault by an inmate when the intervention
would place the guard in danger of physical harm. Patmon v. Parker, 3 Fed. Appx. 337, 338 (6th Cir.
2001). However, constitutional liability can be based upon facts showing that an officer failed to
take preventative steps when witnessing an inmate fight. See Walker v. Norris, 917 F.2d 1449 (6th
Cir. 1990). In affirming the jury’s verdict in Walker that defendant prison guards Ritz and Jordan
violated the prisoner-plaintiff’s Eighth Amendment rights by failing to prevent another inmate,
Eggleston, from killing the plaintiff, the Sixth Circuit noted that the officers had opportunities to
prevent Fails’ stabbing death by (1) opening the door to the yard to permit Fails to elude Eggleston;
(2) by restraining Eggleston at the door; (3) by shutting the door before Eggleston could follow Fails
into the yard; and (4) by intervening when Eggleston attacked Fails in the yard as the guard looked
on. Id. As the Court explained:
The officers’ inaction, when viewed in the most favorable light from
the plaintiff’s perspective, amounted to a callous disregard for Fails’
safety despite obvious notice of imminent danger. Such conduct
constituted the type of “deliberate indifference” that we have
characterized in Roland as “obdurate” or “wanton.”
Id. Similarly, in Freeland v. Russell, 2011 WL 901036 (S.D. Ohio Mar. 14, 2011), the court found
that “[o]fficials present at the scene of an attack of an inmate by another inmate who do not
intervene to act to end the assault may be deliberately indifferent.” Id. at *2. The court explained
that the determination of whether the officials were deliberately indifferent rested on whether there
were facts to justify the failure to act. Id. Based on the allegations of the complaint, the Court finds
that the Plaintiff has failed to allege that Lowe acted with deliberate indifference with respect to the
attack on the Plaintiff. Therefore, the complaint fails to an Eighth Amendment failure to protect
claim against Lowe in his individual capacity, and the claim will be dismissed.
The complaint maintains that Core Civic should be liable for Lowe’s alleged failure to
protect the Plaintiff and/or failure to intervene in the assault against the Plaintiff. (Doc. No. 6 at 2).
Because it performs a traditional state function in operating a state prison, Core Civic acts under the
color of state law. Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir.1996). However, unlike
the state, Core Civic 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 Fed. Appx. 338, 341 (6th Cir. 2014); see also Mason v. Doe, No. 3:12CV-P794-H,
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”).
To hold Core Civic liable, the Plaintiff cannot rely on the theory of respondeat superior or
vicarious liability. Street, 102 F.3d at 818. Liability for failure to protect the Plaintiff attaches only
if Core Civic's policies were shown to be the “moving force” behind the Plaintiff's injury. City of
Canton v. Harris, 489 U.S. 378, 388, 109 S. Ct. 1197, 103 L.Ed.2d 412 (1989). Here, the complaint
does not describe how a Core Civic policy is responsible in full or in part for the Plaintiff’s injury.
Moreover, an allegation that Core Civic had a duty to hire and train competent staff is insufficient
to identify a Core Civic policy and tie that policy to the Plaintiff’s injury. See Baxter v. Corizon
Health, Inc., No. 1:14-cv-1347-JDT-egb, 2015 WL 5707062, at *5 (W.D. Tenn. Sept. 28, 2016).
Therefore, for purposes of the initial screening of the Plaintiff’s claims against Core Civic required
by the PLRA, the court finds that the complaint fails to state Eighth Amendment failure to protect
claims against Core Civic.
For the reasons explained above, the Plaintiff’s motion to amend (Doc. No. 6) will be
granted. The Plaintiff’s motion for the appointment of counsel (Doc. No. 13), however, will be
denied without prejudice to refile. The Court has conducted an initial screening of the amended
complaint as required by the PLRA and finds that the complaint states a colorable First Amendment
retaliation claim under 42 U.S.C. § 1983 against Defendant Warden Leibach in his individual
capacity. That claim shall proceed to further development. However, the complaint fails to state
claims upon which relief can be granted under § 1983 with respect to all other claims against all
Defendants. Those claims will be dismissed. The Plaintiff will be permitted to amend his complaint
in a timely manner for the purpose of fleshing out his claim of retaliatory physical and sexual abuse.
An appropriate Order will be entered.
WAVERLY D. CRENSHAW, JR.
CHIEF UNITED STATES DISTRICT JUDGE
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