Gates v. Parker et al

Filing 11

MEMORANDUM & ORDER Assessing Filing Fee $350 for Derrick Gates. In light of the foregoing, the plaintiff's application to proceed IFP (Doc. No. 10) is GRANTED, and the $350.00 filing fee is ASSESSED in accordance with this order. T his action is hereby DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B) (ii), for failure to state a claim upon which relief can be granted. The entry of this order shall constitute the final judgment in this action pursuant to Federal Rule of Civ il Procedure 58. Signed by District Judge Aleta A. Trauger on 3/22/2019. (xc:Pro se party by regular mail. ) (Warden at T.C.I.X sent a copy of the order 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
DERRICK GATES,

)
)
)
)
)
)
)
)
)

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

Case No. 3:18-cv-00483
Judge Trauger

MEMORANDUM AND ORDER
The plaintiff, Derrick Gates, is an inmate at the Turney Center Industrial Complex in Only,
Tennessee. Proceeding pro se, the plaintiff has filed an original and amended complaint under 42
U.S.C. § 1983. (Doc. Nos. 1 & 4.) He has also filed original and amended applications for leave
to proceed in forma pauperis (IFP). (Doc. Nos. 2, 8, 10.)
The case is before the court for a ruling on the amended IFP application and 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 IFP
Under the PLRA, 28 U.S.C. § 1915(a), a prisoner bringing a civil action may apply for

permission to file suit without prepaying the filing fee of $350.00 required by 28 U.S.C. § 1914(a).
Because it is apparent from the plaintiff’s IFP application that he lacks the funds to pay the entire
filing fee in advance, his application (Doc. No. 10) is GRANTED.
Pursuant to 28 U.S.C. §§ 1915(b) and 1914(a), the plaintiff is nonetheless assessed the
$350.00 civil filing fee. The warden of the facility in which the plaintiff is currently housed, as
custodian of the plaintiff’s trust account, is DIRECTED to submit to the Clerk of Court, as an

initial payment, the greater of: (a) 20% of the average monthly deposits to the plaintiff’s credit at
the jail; or (b) 20% of the average monthly balance to the plaintiff’s credit for the six-month period
immediately preceding the filing of the complaint. 28 U.S.C. § 1915(b)(1). Thereafter, the
custodian shall submit 20% of the plaintiff’s preceding monthly income (or income credited to the
plaintiff for the preceding month), but only when the balance in his account exceeds $10.00. 28
U.S.C. § 1915(b)(2). Payments shall continue until the $350.00 filing fee has been paid in full to
the Clerk of Court. 28 U.S.C. § 1915(b)(3).
The Clerk of Court MUST send a copy of this order to the warden of the Turney Center
Industrial Complex to ensure compliance with that portion of 28 U.S.C. § 1915 pertaining to the
payment of the filing fee. If the plaintiff is transferred from his present place of confinement, the
custodian must ensure that a copy of this order follows the plaintiff to his new place of
confinement, for continued compliance with the order. All payments made pursuant to this order
must be submitted to the Clerk of Court for the United States District Court for the Middle District
of Tennessee, 801 Broadway, Nashville, TN 37203.
II.

Initial Review of the Complaint
A.

PLRA Screening Standard

Pursuant to 28 U.S.C. § 1915(e)(2)(B), the court must dismiss any IFP complaint that is
facially frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks
monetary relief against a defendant who is immune from such relief. Similarly, § 1915A provides
that the court shall conduct an initial review of any prisoner complaint against a governmental
entity, officer, or employee, and shall dismiss the complaint or any portion thereof if the defects
listed in § 1915(e)(2)(B) are identified. Under both statutes, this initial review of whether the
complaint states a claim upon which relief may be granted asks whether it contains “sufficient

2

factual matter, accepted as true, to state a claim to relief that is plausible on its face,” such that it
would survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Hill v. Lappin,
630 F.3d 468, 470–71 (6th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
“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.”
Iqbal, 556 U.S. at 678. Applying this standard, the court must view the complaint in the light most
favorable to the plaintiff and, again, must take all well-pleaded factual allegations as true. Tackett
v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin,
551 F.3d 461, 466 (6th Cir. 2009) (citations omitted)). Furthermore, pro se pleadings must be
liberally construed and “held to less stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
However, pro se litigants are not exempt from the requirements of the Federal Rules of Civil
Procedure, Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989), nor can the court “create a claim
which [a plaintiff] has not spelled out in his pleading.” Brown v. Matauszak, 415 F. App’x 608,
613 (6th Cir. 2011) (quoting Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir.
1975)).
B.

Section 1983 Standard

The plaintiff seeks to vindicate alleged violations of his federal constitutional rights under
42 U.S.C. § 1983. Section 1983 creates a cause of action against any person who, acting under
color of state law, deprives an individual of any right, privilege or immunity secured by the
Constitution or federal laws. Wurzelbacher v. Jones-Kelley, 675 F.3d 580, 583 (6th Cir. 2012).
Thus, to state a § 1983 claim, the plaintiff must allege two elements: (1) a deprivation of rights
secured by the Constitution or laws of the United States, and (2) that the deprivation was caused

3

by a person acting under color of state law. Carl v. Muskegon Cnty., 763 F.3d 592, 595 (6th Cir.
2014).
C.

Allegations and Claims

In his amended complaint, 1 the plaintiff alleges that on September 6, 2017, he was brutally
attacked by two members of a Security Threat Group in Unit 4, A Pod, on the compound at West
Tennessee State Penitentiary, Site 2. (Doc. No. 4 at 3–4.) He was walking from the counselor’s
office when one of these gang members made contact with the plaintiff. (Id. at 4.) When the
plaintiff told the other inmate that “excuse me would be the appropriate thing to say,” the inmate
punched the plaintiff in the face and head. (Id.) The plaintiff was then stabbed in the back 4 or 5
times by the second inmate with a homemade knife that was about 8 to 10 inches long. (Id.) The
plaintiff called for help after this attack, but had to crawl to the counselor’s office where he found
the correctional officer on duty, Officer Taylor, sitting down and conversing with the counselor
instead of “paying attention to activities in the Pod.” (Id.)
The plaintiff appears to allege that Officer Taylor did not adhere to the “tier management”
requirement of Tennessee Department of Correction (TDOC) policy, resulting in the entire pod,
rather than only one of the two tiers, being “out on their assigned tier” at the time of the assault.
(Id.) He alleges that he does not know the names of the inmates who assaulted him, but he does
know that the inmate who stabbed him lived on the bottom tier of the pod. (Id. at 4–5.) The plaintiff
further alleges that this inmate had been confined to segregation on September 2, 2017 for
possession of a deadly weapon and had been released back into the general population on
September 5, 2017, one day before he stabbed the plaintiff. (Id. at 7.) The plaintiff alleges that

1

The plaintiff was entitled to amend his complaint once as a matter of course. Fed. R. Civ.
P. 15(a)(1).
4

Warden Jonathan Lebo should have followed TDOC policy and placed his assailant, a Security
Threat Group member, in administrative segregation after his stint in disciplinary segregation,
instead of returning him to the general population. (Id. at 7–8.)
The plaintiff claims that Officer Taylor, Warden Lebo, Associate Warden Johnny Fitz, and
TDOC Commissioner Tony Parker knew from “past and present history that housing non gang
member(s) inmates with gang member inmates creates a substantial risk o[f] serious harm or death
to the plaintiff.” (Id. at 7; see id. at 6, 8–9.) He claims that Officer Taylor failed to protect him
from imminent harm and displayed reckless disregard, deliberate indifference, and gross
negligence by fraternizing with another employee rather than “being on post and making her
security rounds as post orders instruct every 15 minutes.” (Id. at 6.) He claims that defendants
Lebo, Fitz, and Parker failed to protect him and demonstrated deliberate indifference to his safety
by housing him with gang-affiliated inmates, “disregard[ing] this potential hostile environment
that would become directly effective to the plaintiff Gates by housing him amongst” such inmates.
(Id. at 9; see id. at 7–9.) The plaintiff claims that this housing situation, the failure to observe tier
management requirements, and the release of his assailant from disciplinary segregation back into
the general population were all in violation of specified TDOC policies and procedures.
The plaintiff sues all defendants in their individual and official capacities. (Id. at 3.) As
relief, the plaintiff seeks $450,000.00 in compensatory damages and $650,000.00 in punitive
damages. (Id. at 10.)
D.

Analysis

As an initial matter, the plaintiff’s official-capacity claims must be dismissed. The
defendants are all employees of the State of Tennessee. A suit against a state employee in his or
her official capacity is no different than a suit against the state itself. Will v. Michigan Dep’t of

5

State Police, 491 U.S. 58, 71 (1989) (citing, e.g., Kentucky v. Graham, 473 U.S. 159, 165–66
(1985)). The Eleventh Amendment prohibits suits against a state in federal court. Kentucky, 473
U.S. 159; Pennhurst State Schl. & Hosp. v. Halderman, 465 U.S. 89, 98–100 (1984). Furthermore,
state “officials acting in their official capacities are [not] ‘persons’ under § 1983.” Will, 491 U.S.
at 71. Any official-capacity claims against these defendants are therefore barred by the Eleventh
Amendment and outside the purview of § 1983.
The claims against the defendants in their individual capacities are based on their failure
to protect the plaintiff from the harm he suffered at the hands of his fellow inmates. Under the
Eighth Amendment, prison officials must “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,
526–27 (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 (1993).
For purposes of this initial screening, the court assumes the objective seriousness of the
risk resulting from housing inmates who are known to be affiliated with a gang in the same prison
unit with inmates who are not. See Davis v. Hill, No. 3:15-cv-00936, 2017 WL 1076477, at *3
(M.D. Tenn. Feb. 21, 2017), report and recommendation adopted, 2017 WL 1064151 (M.D. Tenn.

6

Mar. 21, 2017). However, the plaintiff must also satisfy the subjective component of this claim.
He attempts to do so by alleging that the defendants knew of a substantial risk of serious harm or
death to the plaintiff based on “past and present history.” (Doc. No. 4 at 6, 7, 8, 9.) This allegation
is entirely conclusory and fails to plausibly suggest that any defendant was “deliberately indifferent
to a specific, known risk” to inmate safety. Gant v. Campbell, 4 F. App’x 254, 256 (6th Cir. 2001).
In Gant, the Sixth Circuit addressed an inmate’s failure-to-protect claim arising from an
attack by gang members after they tricked a corrections officer into leaving his post. Although the
inmate had allegedly “expressed a general concern” that “he would be in grave danger of attack
by gang members because his brother had been attacked,” the Sixth Circuit affirmed the dismissal
of his claim at the initial screening stage because he did not allege that the defendants knew of any
particular threats to his safety, or of any particular gang members whom he feared. Id. The court
further found that “[t]he officer’s negligence in being tricked out of place does not support an
Eighth Amendment claim.” Id.
Similarly, the plaintiff in the instant case has alleged that the defendants knew of the risk
of violence inherent in housing gang-affiliated inmates in the same unit with inmates who are not
affiliated with a gang, but he does not allege that the inmates who attacked him were known by
any defendant to pose a particular risk of harm to the plaintiff. While the failure to allege that the
defendants disregarded a risk specific to him will not necessarily defeat the plaintiff’s deliberate
indifference claim, in the absence of such an allegation, his complaint must plausibly support their
disregard of either a pervasive risk of harm or a risk of harm to an identifiable group of which the
plaintiff is a member. Street v. Corr. Corp. of Am., 102 F.3d 810, 815 (6th Cir. 1996).
However, the plaintiff does not allege that violence between gang-affiliated inmates and
unaffiliated inmates was pervasive in his unit, that he had previously been targeted by gang

7

members, or that the incident of violence was anything other than a random occurrence. In fact, in
the grievance that the plaintiff attached to both his original and amended complaints, 2 he stated
that he “had no problem with these dudes until this incident” and clarified that “[t]his is an isolated
incident[;] I don’t seek protective custody.” (Doc. No. 1 at 12; Doc. No. 4 at 18.) He further alleges
that the incident was precipitated by the fact that all 128 inmates in the pod happened to be out on
the day in question due to Officer Taylor’s negligent failure to observe the tier management policy,
which “instructs [that] 64 inmates shall be out on their assigned tier” at one time, except during
meal time or gym time. (Doc. No. 4 at 5–6.) The plaintiff claims that Officer Taylor’s negligence
exposed him to a substantial risk of harm because one official could not effectively monitor 128
inmates. (Id. at 4–5.) However, he cannot demonstrate that the risk of harm was pervasive based
on a single instance of improper tier management. Nor can he plausibly allege deliberate
indifference based on the defendants’ general knowledge that violence could result from housing
gang-affiliated inmates in the same unit as unaffiliated inmates.
Specifically with regard to his claim based on Officer Taylor’s temporary absence from
her duty station, the plaintiff has failed to allege that Taylor “had knowledge from which she could
infer that [he] faced a ‘substantial risk of serious harm at the hands of gang members if she left her
duty station, that she did in fact draw that inference, and that she nonetheless acted with deliberate
indifference to [his] safety.” Davis, 2017 WL 1076477, at *3. Rather, he accuses Officer Taylor
of “negligence and poor performance of her duty” (Doc. No. 4 at 5), neither of which supports an
Eighth Amendment claim. Gant, 4 F. App’x at 256 (citing Farmer, 511 U.S. at 835–36; Gibson v.

2

The court may consider these attachments to the complaint in performing the screening
required by the PLRA. Powell v. Woodard, No. 17-6212, 2018 WL 5098824, at *2 (6th Cir. May
21, 2018) (citing, e.g., Arauz v. Bell, 307 F. App’x 923, 925 n.1 (6th Cir. 2009) (“We are also
permitted to consider materials attached to the complaint, and we will reference exhibits that Arauz
attached to his complaint when these attachments clarify matters.”)).
8

Foltz, 963 F.2d 851, 853–54 (6th Cir. 1992)). Therefore, the plaintiff fails to state a plausible
§ 1983 claim against Officer Taylor, or against any other defendant for failure to properly
supervise Officer Taylor. See Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984) (holding that
supervisory liability cannot be established under § 1983 without implicit authorization, approval,
or knowing acquiescence in unconstitutional conduct).
The plaintiff also alleges that Commissioner Parker, Warden Lebo, and Associate Warden
Fitz were deliberately indifferent to his safety when, in violation of TDOC policy, they allowed
the housing of gang-affiliated inmates in the same unit with other inmates. He further alleges that
Warden Lebo was deliberately indifferent to the safety of inmates and staff when he failed to
follow TDOC policies 404.10, 506.14, and 506.01, concerning placement of his assailant in
administrative segregation after his 3-day confinement to disciplinary segregation. (Doc. No. 4 at
7–8.) Finally, the plaintiff broadly alleges that Parker, Lebo, and Fitz are “legally responsible” for
the protection of all inmates in their custody and for supervising the administration of applicable
TDOC policies, the failure of which led to the plaintiff’s injuries. (Id. at 2–3.)
However, alleged violations of TDOC policies are not actionable under § 1983, which, on
its face, applies only to deprivations of constitutional or other federal rights. Groomes v. Parker,
No. 08-2028-AN/P, 2008 WL 4057763, at *6 (W.D. Tenn. Aug. 26, 2008) (citing American Mfrs.
Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49 (1999)). Moreover, TDOC policy does not create any
constitutionally protected interest or right. Id. (citing cases). Therefore, the plaintiff fails to state a
plausible Eighth Amendment claim based on any defendant’s failure to follow, or properly
supervise the administration of, TDOC policy. See Dulworth v. Lindamood, No. 1:18-cv-00036,
2018 WL 4467038, at *4 (M.D. Tenn. Sept. 18, 2018) (dismissing claim that warden’s practice of
housing mentally ill inmates with non-mentally ill inmates violates TDOC policies).

9

In short, even if the alleged variance from certain policies allowed for the encounter
between the plaintiff and his assailants on the day he was injured, his allegations are not sufficient
to state a colorable claim that any defendant knew of a substantial risk of serious harm and
disregarded that risk by failing to take reasonable measures to abate it. Farmer, 511 U.S. at 847.
Accordingly, this action must be dismissed.
III.

Conclusion
In light of the foregoing, the plaintiff’s application to proceed IFP (Doc. No. 10) is

GRANTED, and the $350.00 filing fee is ASSESSED in accordance with this order. This action
is hereby DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), for failure to state a claim upon
which relief can be granted.
The entry of this order shall constitute the final judgment in this action pursuant to Federal
Rule of Civil Procedure 58.
It is so ORDERED.
ENTER this 22nd day of February 2019.

____________________________________
Aleta A. Trauger
United States District Judge

10