Aguilera v. CoreCivic et al

Filing 4

MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 3/2/2018. (xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

CAE AGUILERA,

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Plaintiff,
v.
CORE CIVIC et al.,
Defendants.

No. 3:17-cv-1612
Judge Aleta A. Trauger

MEMORANDUM
The plaintiff Cae Aguilera, proceeding pro se, has filed a civil rights complaint against
defendants Core Civic, TDOC, [F/N/U] Leibach, [F/N/U] Warlow, [F/N/U] Washburn, [F/N/U]
Lopez, [F/N/U] Howell, [F/N/U] Batten, [F/N/U] Rickoway and the Trousdale Turner
Correctional Center (“TTCC”). (ECF No. 1.) Before the court is the plaintiff’s application to
proceed in forma pauperis (ECF No. 2). In addition, his 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, and 42 U.S.C. § 1997e.
I. Application to Proceed as a Pauper
Under the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(a), a prisoner
bringing a civil action may be permitted to file suit without prepaying the filing fee required by
28 U.S.C. § 1914(a). Because the plaintiff submitted 1 an application to proceed in forma
pauperis, and because it appears from his submissions that the plaintiff lacks sufficient financial
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The plaintiff’s application to proceed in forma pauperis does not include a certified copy of the
plaintiff’s inmate trust fund account. (ECF No. 2.) The plaintiff notes that the authorized officer
refused to prepare and sign his prisoner trust account statement and the unit manager refused to
notarize it. (Id.) As such, the court overlooks this deficiency and grants the plaintiff’s
application.

resources from which to pay the full filing fee in advance, the application (ECF No. 2) will be
granted.
However, under § 1915(b), the plaintiff nonetheless remains responsible for paying the
full filing fee. The obligation to pay the fee accrues at the time the case is filed, but the PLRA
provides prisoner-plaintiffs the opportunity to make a “down payment” of a partial filing fee and
to pay the remainder in installments. Accordingly, the plaintiff will be assessed the full $350
filing fee, to be paid as directed in the accompanying order.
II. Dismissal of the Complaint
Pursuant to 28 U.S.C. § 1915(e)(2), the court is required to conduct an initial review of
any complaint filed in forma pauperis and to dismiss the complaint if it is facially frivolous or
malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary
relief against a defendant who is immune from such relief. Begola v. Brown, 172 F.3d 47
(Table), 1998 WL 894722, at *1 (6th Cir. Dec. 14, 1998) (citing McGore v. Wrigglesworth, 114
F.3d 601, 604 (6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199
(2007)). The court must construe a pro se plaintiff’s complaint liberally, Boag v. McDaniel, 454
U.S. 364, 365 (1982), and accept the plaintiff’s allegations as true unless they are clearly
irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992).
A. Factual Allegations
In his complaint, the plaintiff alleges that, on March 24, 2017, April 11, 2017, May 1,
2017 and June 29, 2017, he was denied a meal tray. (ECF No. 1 at Page ID# 4.) Specifically,
the plaintiff alleges that, on March 24, 2017 Officer Rickoway refused to give him a dinner tray,
taunted him with racially insensitive remarks, laughed at him and threatened to punish him with
a disciplinary infraction for defiance and a job drop if he did not “shut up.” (Id. at Page ID# 11.)
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On April 11, 2017, while the plaintiff was taken for the “regular prison call-out,” his breakfast
tray was left out in the unit for more than 2 hours. (Id. at Page ID# 18.) The now-cold breakfast
trays were returned to the kitchen, but instead of being given a new hot breakfast, the plaintiff
had to wait until lunch to eat, and at that time he was given a cold sack lunch. (Id.) On May 1,
2017, he was denied his dinner tray. (Id. at Page ID # 8.) On June 29, 2017, Officer Lopez and
Captain Howell refused to allow him to get his lunch tray, were disrespectful toward him and
threatened to punish him if he did not leave the tray window without a tray. (Id. at Page ID# 1516.) The plaintiff alleges that he was deprived of these meals as punishment for standing up for
his rights..
The plaintiff alleges that the defendants violated his Eighth Amendment right to be free
from cruel and unusual punishment and asserts a number of state law claims. As relief, the
plaintiff seeks monetary damages against each defendant.
B. Standard of Review
If an action is filed in forma pauperis, “the court shall dismiss the case at any time if the
court determines that . . . the action . . . fails to state a claim on which relief may be granted.” 28
U.S.C. § 1915(e)(2)(B)(ii). In assessing whether the complaint in this case states a claim on
which relief may be granted, the court applies the standards under Rule 12(b)(6) of the Federal
Rules of Civil Procedure, as construed by Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009), and
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555–57 (2007). See Hill v. Lappin, 630 F.3d 468,
470–71 (6th Cir. 2010) (holding that “the dismissal standard articulated in Iqbal and Twombly
governs dismissals for failure to state a claim under [§ 1915(e)(2)(B)(ii)] because the relevant
statutory language tracks the language in Rule 12(b)(6)”). “Accepting all well-pleaded
allegations in the complaint as true, the Court ‘consider[s] the factual allegations in [the]
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complaint to determine if they plausibly suggest an entitlement to relief.’” Williams v. Curtin,
631 F.3d 380, 383 (6th Cir. 2011) (quoting Iqbal, 556 U.S. at 681) (alteration in original).
“[P]leadings that . . . are no more than conclusions[] are not entitled to the assumption of truth.
While legal conclusions can provide the framework of a complaint, they must be supported by
factual allegations.” Iqbal, 556 U.S. at 679; see also Twombly, 550 U.S. at 555 n.3 (“Rule 8(a)(2)
still requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief. Without some
factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement
of providing not only ‘fair notice’ of the nature of the claim, but also ‘grounds’ on which the
claim rests.”).
“Pro se complaints are to be held to less stringent standards than formal pleadings drafted
by lawyers, and should therefore be liberally construed.” Williams, 631 F.3d at 383 (internal
quotation marks and citation omitted). Pro se litigants, however, are not exempt from the
requirements of the Federal Rules of Civil Procedure. Wells v. Brown, 891 F.2d 591, 594 (6th
Cir. 1989). The court is not required to create a claim for the plaintiff. Clark v. Nat’l Travelers
Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975); see also Brown v. Matauszak, 415 F. App’x
608, 613 (6th Cir. 2011) (“[A] court cannot create a claim which [a plaintiff] has not spelled out
in his pleading”) (internal quotation marks and citation omitted); Payne v. Sec’y of Treas., 73 F.
App’x 836, 837 (6th Cir. 2003) (affirming sua sponte dismissal of complaint pursuant to Fed. R.
Civ. P. 8(a)(2) and stating, “[n]either this court nor the district court is required to create Payne’s
claim for her”).
C. Discussion
1. Constitutional Violations against Defendants TTCC and TDOC
The plaintiff identifies TTCC and TDOC as defendants. An express requirement of 42
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U.S.C. § 1983 is that the defendant be a “person.” See Monell v. Dep't of Social Servs., 436 U.S.
658 (1978).

TTCC is an administrative unit of the Tennessee Department of Corrections

(TDOC), which is a state agency. Neither a prison nor a state corrections department is a
“person” within the meaning of section 1983. Will v. Michigan Dep’t of State Police, 491 U.S.
58 (1989).
Furthermore, the plaintiff’s claim against TTCC and TDOC is barred by the Eleventh
Amendment. Alabama v. Pugh, 438 U.S. 781, 782 (1978). That amendment prohibits suits in
federal court against the state or any of its agencies or departments. Pennhurst State School &
Hosp. v. Haldermann, 465 U.S. 89, 100 (1984). A state’s Eleventh Amendment immunity is in
the nature of a jurisdictional defense and may be raised on the court’s own motion. Estate of
Ritter v. University of Michigan, 851 F.2d 846, 851 (6th Cir. 1988). The Supreme Court has
squarely held that the Eleventh Amendment bars federal suits against state departments of
corrections. Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per curiam). TTCC and TDOC are
therefore not subject to a section 1983 action.
2. Constitutional Violations against Defendants Core Civic, Leibach, Warlow,
Washburn and Batten
The plaintiff names as defendants Core Civic, Leibach, Warlow, Washburn and Batten;
however, he fails to allege that these defendants engaged in any conduct that violated his
constitutional rights. Indeed, he entirely fails to identify them in the text of his complaint.
It is a basic pleading essential that a plaintiff attribute factual allegations to particular
defendants. See Twombly, 550 U.S. at 544 (holding that, in order to state a claim, a plaintiff
must make sufficient allegations to give a defendant fair notice of the claim). The plaintiff has
failed to attribute any conduct at all to defendants Core Civic, Leibach, Warlow, Washburn or
Batten.

Where a defendant is named but the plaintiff fails to allege that the defendant engaged
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in any specific conduct, the complaint is subject to dismissal, even under the liberal construction
afforded to pro se complaints. See Gilmore v. Corr. Corp. of Am., 92 F. App’x 188, 190 (6th
Cir. 2004) (dismissing complaint where plaintiff failed to allege how any named defendant was
involved in the violation of his rights).
Based on the foregoing, the plaintiff fails to state any claims upon which relief may be
granted against defendants Core Civic, Leibach, Warlow, Washburn or Batten.
3. Eighth Amendment Violation against Defendants Lopez, Howell and Rickoway
for Failure to Provide Meals
The plaintiff alleges that defendants Lopez, Howell and Rickoway violated his Eighth
Amendment right to be free from cruel and unusual punishment.
The Eighth Amendment imposes a constitutional limitation on the power of the states to
punish those convicted of crimes. Punishment may not be “barbarous,” nor may it contravene
society’s “evolving standards of decency.” Rhodes v. Chapman, 452 U.S. 337, 345-46 (1981).
The Amendment, therefore, prohibits conduct by prison officials that involves the “unnecessary
and wanton infliction of pain.” Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir. 1987) (per curiam)
(quoting Rhodes, 452 U.S. at 346). The deprivation alleged must result in the denial of the
“minimal civilized measure of life’s necessities.” Rhodes, 452 U.S. at 347; see also Wilson v.
Yaklich, 148 F.3d 596, 600-01 (6th Cir. 1998). The Eighth Amendment is only concerned with
“deprivations of essential food, medical care, or sanitation” or “other conditions intolerable for
prison confinement.” Rhodes, 452 U.S. at 348 (citation omitted). Moreover, “[n]ot every
unpleasant experience a prisoner might endure while incarcerated constitutes cruel and unusual
punishment within the meaning of the Eighth Amendment.” Ivey, 832 F.2d at 954.
For Eighth Amendment purposes, adequate food is characterized as “‘well-balanced
meal[s], containing sufficient nutritional value to preserve health.’” Green v. Ferrell, 801 F.2d
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765, 770 (5th Cir. 1986) (quoting Smith v. Sullivan, 553 F.2d 373, 380 (5th Cir. 1977)) (footnote
omitted). Isolated deprivations of meals to prisoners do not rise to the level of an Eighth
Amendment violation where the daily meal or meals provided are sufficient to maintain normal
health. See Cunningham v. Jones, 667 F.2d 565, 566 (6th Cir.1982) (finding that providing one
meal per day for fifteen consecutive days did not violate the Eighth Amendment, where the one
meal provided sufficient nutrition to sustain normal health for that time period); Islam v.
Jackson, 782 F. Supp. 1111, 1114-15 (E.D. Va. 1992) (finding that serving an inmate a maggotcontaminated meal on one occasion and serving food under potentially unsanitary conditions for
thirteen days did not constitute cruel and unusual punishment). See also White v. Gregory, 1
F.3d 267, 269 (4th Cir. 1993) (finding that providing prisoners two meals a day on weekends and
holidays, even though three meals were served during the week, did not rise to the level of an
Eighth Amendment violation); Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999) (finding that
“[e]ven on a regular, permanent basis, two meals a day may be adequate [under the Eighth
Amendment].”); Talib v. Gilley, 138 F.3d 211, 214 n.3 (5th Cir. 1998) ( noting that a prisoner’s
“missing a mere one out of every nine meals [50 meals over five months] is hardly more than
that missed by many working citizens over the same period. We are therefore doubtful that [the
plaintiff] was denied anything close to a minimal measure of life’s necessities.”).
In order for a prisoner to prevail on an Eighth Amendment claim, he must show that he
faced a sufficiently serious risk to his health or safety and that the defendant official acted with
“‘deliberate indifference’ to [his] health or safety.” Mingus v. Butler, 591 F.3d 474, 479-80 (6th
Cir. 2010) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994) (applying deliberate indifference
standard to medical claims); see also Helling v. McKinney, 509 U.S. 25, 35 (1993) (applying
deliberate indifference standard to conditions of confinement claims)).
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The plaintiff fails to demonstrate that he faced a sufficiently serious risk to his health or
safety. The plaintiff missed one meal on four occasions over a period of four months. The
complaint does not allege that the plaintiff lost weight, that his health suffered as a result of
insufficient nutrients, or that he otherwise suffered any harm as a result of the missed meals.
While the court does not condone withholding food as a means of punishment, the court finds
that the complaint fails to allege facts sufficient to support an Eighth Amendment violation.
Consequently, the plaintiff’s claims against defendants Lopez, Howell and Rickoway for failing
to provide him meals will be dismissed.
4. Eighth Amendment Violation Against Defendants Lopez, Howell and Rickoway
for Rudeness and Racially Insensitive Remarks
The plaintiff alleges that defendants Lopez, Howell and Rickoway violated his Eighth
Amendment rights by making racially insensitive remarks.
The use of harassing or degrading language by a prison official, although unprofessional
and deplorable, does not rise to constitutional dimensions.

See Ivey, 832 F.2d at 954-55; see

also Johnson v. Dellatifa, 357 F.3d 539, 546 (6th Cir. 2004) (finding that harassment and verbal
abuse do not constitute the type of infliction of pain that the Eighth Amendment prohibits);
Violett v. Reynolds, No. 02-6366, 2003 WL 22097827, at *3 (6th Cir. Sept. 5, 2003) (finding
that verbal abuse and harassment do not constitute punishment that would support an Eighth
Amendment claim); Thaddeus-X v. Langley, No. 96-1282, 1997 WL 205604, at *1 (6th Cir. Apr.
24, 1997) (finding that verbal harassment is insufficient to state a claim); Murray v. U.S. Bureau
of Prisons, No. 95-5204, 1997 WL 34677, at *3 (6th Cir. Jan. 28, 1997) (noting that, “[a]lthough
we do not condone the alleged statements, the Eighth Amendment does not afford us the power
to correct every action, statement or attitude of a prison official with which we might disagree.”)
Accordingly, the plaintiff fails to state an Eighth Amendment claim against defendants Lopez,
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Howell and Rickoway arising from their racially insensitive remarks.
5. State Law Claims
Claims under § 1983 can only be brought for “deprivation of rights secured by the
constitution and laws of the United States.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 924
(1982). Section 1983 does not provide redress for a violation of a state law. Pyles v. Raisor, 60
F.3d 1211, 1215 (6th Cir. 1995); Sweeton v. Brown, 27 F.3d 1162, 1166 (6th Cir. 1994). The
plaintiff’s assertion that defendants violated state law therefore fails to state a claim under
§ 1983.
To the extent that the plaintiff seeks to invoke this court’s supplemental jurisdiction over
a state-law claim, the court declines to exercise jurisdiction. In determining whether to retain
supplemental jurisdiction, “[a] district court should consider the interests of judicial economy
and the avoidance of multiplicity of litigation and balance those interests against needlessly
deciding state law issues.” Landefeld v. Marion Gen. Hosp., Inc., 994 F.2d 1178, 1182 (6th Cir.
1993). Ordinarily, where a district court has exercised jurisdiction over a state-law claim solely
by virtue of supplemental jurisdiction, and the federal claims are dismissed prior to trial, the
court will dismiss the remaining state-law claims.

Id.

Here, the balance of the relevant

considerations weighs against the continued exercise of supplemental jurisdiction. Accordingly,
the plaintiff’s state-law claims will be dismissed without prejudice.
III.

CONCLUSION
Because the complaint does not contain sufficient facts to allege any claims upon which

relief may be granted against any defendant, this action will be dismissed.
1915(e)(2)(B)(ii).

28 U.S.C. §

To the extent the plaintiff raises state law claims, those claims will be

dismissed without prejudice. For the same reasons that the court dismisses this action, the court
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finds that an appeal of this action would not be taken in good faith. The court therefore certifies,
pursuant to 28 U.S.C. § 1915(a)(3), that any appeal in this matter by the plaintiff would not be
taken in good faith, and the plaintiff will not be granted leave by this court to proceed on appeal
in forma pauperis. An appropriate order is filed herewith.
ENTER this 2nd day of March 2018.

ALETA A. TRAUGER
UNITED STATES DISTRICT JUDGE

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