Turner v. Parker et al

Filing 109

REPORT AND RECOMMENDATION re 98 MOTION to Dismiss for Failure to State a Claim filed by Charles Sweat, f/n/u Taylor, Johnny Fitz, Jonathan Lebo. For the foregoing reasons, the undersigned finds that Plaintiff's Amended Complaint ha s failed to state a claim against Defendants Lebo, Fitz, Sweat, and Taylor for which relief can be granted. Accordingly, the undersigned recommends that Defendants' Motion to Dismiss (Docket No. 98) be GRANTED, that Plaintiff's claims aga inst Defendants Lebo, Fitz, Sweat, and Taylor be DISMISSED, and that Defendants Lebo, Fitz, Sweat, and Taylor be TERMINATED as parties in this action. Signed by Magistrate Judge Jeffery S. Frensley on 6/7/2019. (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
RANDALL TURNER,

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Plaintiff,
v.
TONY PARKER, et al.,
Defendants.

Case No. 3:18-cv-00003
Judge Trauger / Frensley

REPORT AND RECOMMENDATION
I. Introduction and Background
This matter is before the Court upon a Motion to Dismiss Plaintiff’s Amended Complaint
for failure to state a claim filed pursuant to Fed. R. Civ. P. 12(b)(6) by Defendants Jonathan
Lebo, Johnny Fitz, Charles Sweat, and Clayton Taylor (“Defendants”). Docket No. 98. Along
with their Motion, Defendants have filed a supporting Memorandum of Law. Docket No. 99.
Plaintiff has filed a Response to Defendants’ Motion to Dismiss, as well as his unsigned,
un-notarized “Affidavit.” Docket Nos. 102, 103.
Plaintiff filed the Amended Complaint in this pro se, in forma pauperis action on
December 10, 2018, pursuant to 42 U.S.C. § 1983. Docket No. 70. Plaintiff sues Defendants in
their official capacity.1 Id. Plaintiff’s sole mention of the instant Defendants is, “The plaintiff
seeks damages from each defendant Lebo, Fitz, Sweat and Taylor in amount of two hundred and
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Plaintiff’s Amended Complaint does not state the capacity in which he sues Defendants;
accordingly, Plaintiff is deemed to sue Defendants solely in their official capacity. Wells v.
Brown, 891 F.2d 591, 592-594 (6th Cir. 1989) (plaintiffs, including pro se prisoners, are required
to specify in their §1983 actions that they are suing state defendants in their individual capacities
for damages; if a plaintiff does not specify the capacity in which a defendant is sued, the Court
presumes that the defendant is being sued in his official capacity).

fifty thousand dollars compensatory and punitive damages.” Id. at 2.
Defendants filed the instant Motion and supporting Memorandum of Law arguing that
they are only named once in Plaintiff’s now operative and final second Amended Complaint
(Docket No. 70) and that the single reference to them is a demand for compensation. Docket
Nos. 98, 99. Defendants argue that, as relative to them, the allegations of Plaintiff’s second
Amended Complaint are “entirely vague and conclusory and are not sufficiently specific to
impute liability as to any of these Defendants under 42 U.S.C. § 1983.” Docket No. 98, p. 1.
Defendants argue that if they assume, infer, and attempt to extrapolate allegations from the
paragraphs prior to Plaintiff’s demand for compensation from them, the best they can derive is
that Plaintiff alleges that one or more of the Defendants, in some unknown manner, was in some
way responsible for housing Plaintiff with a gang member in violation of his Eighth Amendment
rights. Docket No. 99, p. 5. Defendants contend that these unidentified, conclusory allegations
are insufficient to state a claim upon which relief may be granted such that their Motion should
be granted. Id.
Plaintiff responds that Defendants assumed housing argument is incorrect because “the
only defendant that is mention [sic] in the amended complaint as placing the plaintiff in cell with
a gang member is Jeremy Cotham” who is “not name [sic] in the defendants motion to dismiss.”
Docket Nos. 102, 103. Plaintiff also argues that Defendants have filed an Answer; that
Defendants’ counsel does not have standing to “assert a claim for the non state employees”; that
Defendants have waived the right to challenge any prior amended complaint; and that his
Amended Complaint does indeed state a claim upon which relief can be granted because
“Defendants knows from past and present history of these gang members that housing non-gang
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members with them create a serious risk of harm and death. Defendants disregard that risk and
house us together any [sic].” Docket No. 102.2
For the reasons set forth below, the undersigned finds that Plaintiff’s Amended
Complaint has failed to state a claim against Defendants Lebo, Fitz, Sweat, and Taylor for which
relief can be granted. Accordingly, the undersigned recommends that Defendants’ Motion to
Dismiss (Docket No. 98) Plaintiff’s Amended Complaint be GRANTED, that Plaintiff’s claims
against Defendants Lebo, Fitz, Sweat, and Taylor be DISMISSED, and that Defendants Lebo,
Fitz, Sweat, and Taylor be TERMINATED as parties in this action.
II. Allegations of Plaintiff’s Amended Complaint3
Plaintiff’s sole mention of the instant Defendants, in its entirety, is as follows:
The plaintiff seeks damages from each defendant Lebo, Fitz, Sweat
and Taylor in amount of two hundred and fifty thousand dollars
compensatory and punitive damages.
Docket No. 70, p. 2.
III. Law and Analysis
A. Motion to Dismiss: Fed. R. Civ. P. 12(b)(6)
Fed. R. Civ. P. 12(b)(6) provides that a claim may be dismissed for failure to state a claim

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In Plaintiff’s unsigned, un-notarized “Affidavit,” he argues that Defendants, while
acting under color of state law, “did violated the Plaintiff right secured by the constitution and
laws of the united states” and further maintains that he was assaulted by gang members and
sustained injury as a result. Docket No. 103. Plaintiff additionally argues that Defendants knew
“by past and present history of these gang members that housing non-gang member inmates
created a substantial risk of serious harm and death they disregard that risk and houses us
together any way.” Id.
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As has been noted, because none of the other Defendants have joined in the instant
Motion, the undersigned will discuss only those allegations Plaintiff avers relating to Defendant
Bellott.
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upon which relief can be granted. In order to state a claim upon which relief can be granted, a
complaint must contain either direct or inferential allegations respecting all material elements to
sustain a recovery under some viable legal theory. Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir.
2005). Conclusory allegations or legal conclusions masquerading as factual allegations will not
suffice. Id. A complaint containing a statement of facts that merely creates a suspicion of a
legally cognizable right of action is insufficient. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955,
1965 (2007). The “[f]actual allegations must be enough to raise a right to relief above the
speculative level”; they must “state a claim to relief that is plausible on its face.” Id. at 1965,
1974. See also, Ass’n of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545, 548 (6th
Cir. 2007).
Moreover, the United States Supreme Court has recently addressed the appropriate
standard that must be applied in considering a Motion to Dismiss for failure to state a claim. See
Ashcroft v. Iqbal, 556 U.S. 662 (2009). The Iqbal Court stated in part as follows:
Two working principles underlie our decision in Twombly. First,
the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.
Threadbare recitals of the elements of the cause of action,
supported by mere conclusory statements, do not suffice . . . . Rule
8 marks a notable and generous departure from the hyper-technical,
code-pleading regime of a prior era, but it does not unlock the
doors of discovery for plaintiff armed with nothing more than
conclusions. Second, only a complaint that states a plausible claim
for relief survives a motion to dismiss . . . . Determining whether a
complaint states a plausible claim for relief will, as the Court of
Appeals observed, be a context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense. . . . But where the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the
complaint has alleged - but it has not “show[n]” - “that the pleader
is entitled to relief.”
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556 U.S. at 678-79 (citations omitted).
B. 42 U.S.C. § 1983
Section 1983 provides, in part, that:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper
proceeding for redress...
Thus, in order to state a claim under § 1983, a plaintiff must allege the violation of a right
secured by the Constitution and laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S.
42, 48 (1988), citing Parratt v. Taylor, 451 U.S. 527, 535 (1981) (overruled in part on other
grounds, Daniels v. Williams, 474 U.S. 327, 330-331 (1986)); Flagg Bros., Inc. v. Brooks, 436
U.S. 149, 155 (1978). The traditional definition of acting under color of state law requires that
the defendant in a § 1983 action have exercised power “possessed by virtue of state law and
made possible only because the wrongdoer is clothed with the authority of state law.” Id. at 49,
108 S. Ct. 2255, quoting United States v. Classic, 313 U.S. 299, 326 (1941).
C. The Case at Bar
Taking the allegations of Plaintiff’s second Amended Complaint as true, as the Court
must do at this stage in the proceedings, Plaintiff seeks compensatory and punitive damages from
each of the instant Defendants. Docket No. 70, p. 2. Plaintiff’s second Amended Complaint
fails to proffer specific allegations against any of the instant Defendants. Absent such, Plaintiff

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cannot establish either that his constitutional rights were violated or that any of the instant
Defendants were responsible.
Moreover, because Plaintiff is deemed to sue the instant Defendants solely in their
official capacity, Defendants stand in the shoes of the entity they represent, which is the State of
Tennessee. See Claybrook v. Birchwell, 199 F.3d 350, 355 n.4 (6th Cir. 2000), citing Kentucky
v. Graham, 473 U.S. 159, 165, 105 S. Ct. 3099, 3105, 87 L. Ed. 2d 114 (1985). See also, Frost
v. Hawkins County Bd. of Educ., 851 F.2d 822, 827 (6th Cir. 1988). The law is well-settled that
the State is not a person amenable to suit under § 1983. Will v. Mich. Dep’t of State Police, 491
U.S. 58 (1989).
IV. Conclusion
For the foregoing reasons, the undersigned finds that Plaintiff’s Amended Complaint has
failed to state a claim against Defendants Lebo, Fitz, Sweat, and Taylor for which relief can be
granted. Accordingly, the undersigned recommends that Defendants’ Motion to Dismiss (Docket
No. 98) be GRANTED, that Plaintiff’s claims against Defendants Lebo, Fitz, Sweat, and Taylor
be DISMISSED, and that Defendants Lebo, Fitz, Sweat, and Taylor be TERMINATED as parties
in this action.
Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14)
days after service of this Report and Recommendation in which to file any written objections to
this Recommendation with the District Court. Any party opposing said objections shall have
fourteen (14) days after service of any objections filed to this Report in which to file any
response to said objections. Failure to file specific objections within fourteen (14) days of
service of this Report and Recommendation can constitute a waiver of further appeal of this
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Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985), reh’g denied, 474 U.S. 1111
(1986); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.

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JEFFERY S. FRENSLEY
United States Magistrate Judge

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