Henvey v. Doaks

Filing 12

ORDER OF PARTIAL DISMISSAL AND ORDER TO ISSUE SERVICE OF PROCESS. Signed by Judge James D. Todd on 3/31/15. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
______________________________________________________________________________
ANTHONY HENVEY a/k/a
ANTHONY HERVEY,
Plaintiff,
vs.

No. 14-1075-JDT-egb

P.A. TASMA GRAHAM DOAKS, et al.,
Defendants.
______________________________________________________________________________
ORDER OF PARTIAL DISMISSAL
AND
ORDER TO ISSUE SERVICE OF PROCESS
______________________________________________________________________________
On April 2, 2014, Plaintiff Anthony Henvey a/k/a Anthony Hervey, who is incarcerated
at the Whiteville Correctional Facility (“WCF”) in Whiteville, Tennessee, filed a pro se
complaint pursuant to 42 U.S.C. ' 1983 and a motion seeking leave to proceed in forma
pauperis. (ECF Nos. 1 & 2.) On April 4, 2014, the Court entered an order granting leave to
proceed in forma pauperis and assessing the filing fee. (ECF No. 4.) On September 18, 2014,
Plaintiff filed a motion seeking leave to amend his complaint to state Graham Doak’s complete
name and to add additional defendants and causes of action. (ECF No. 7.) On February 18,
2015, the Court granted the motion. (ECF No. 11.) The amended complaint was docketed on
September 18, 2014. (ECF No. 7-1.) The Clerk shall record the defendants as Physicians’
Assistant Tasma Graham Doaks, Ms. J. Bass, Danny Cosby, Unit Manager Charles Hales, and
WCF Assistant Warden Dan Devers.
Plaintiff Henvey alleges that he was diagnosed as a diabetic during his incarceration at

the Shelby County Jail and the condition required blood sugar checks and insulin. (ECF No. 1 at
PageID 4.) Plaintiff alleges that on May 5, 2013, while at the WCF, his prescription for
Metformin had expired and he required insulin because his blood sugar was too high. (Id.)
Plaintiff alleges that Defendant Graham Doaks took him off the list to have his blood sugar
tested. (Id.) On May 9, 2013, Plaintiff alleges that he either had a seizure or blacked out
injuring his left elbow and low back. (Id. at PageID 5.) Plaintiff was taken to the medical
department, given insulin, and transported to an outside hospital. (Id.) Plaintiff alleges that
since that date he has been given ibuprofen for his back pain, Metformin, insulin when required,
and has his blood sugar checked three times a day. (Id.) Plaintiff complains that he still suffers
from back pain. (Id.)
Plaintiff alleges that Defendant J. Bass denied him the opportunity to change cells when
he developed problems with his cellmate. (ECF No. 7-1 at PageID 48.) Plaintiff contends that
Defendant Danny Cosby would not allow him reentry to a social life program because of
fighting. (Id.) Plaintiff complains that Defendant Hale refused to overturn Defendant Cosby’s
decision. (Id.) Plaintiff alleges that Defendant Devers failed to investigate the incident. (Id.)
The Court is required to screen prisoner complaints and to dismiss any complaint, or any
portion thereof, if the complaintC
(1)
is frivolous, malicious, or fails to state a claim upon which relief may be
granted; or
(2)

seeks monetary relief from a defendant who is immune from such relief.

28 U.S.C. ' 1915A(b); see also 28 U.S.C. ' 1915(e)(2)(B).
In assessing whether the complaint in this case states a claim on which relief may be
granted,
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[t]he court must construe the complaint in the light most favorable to plaintiffs,
accept all well-pled factual allegations as true and determine whether plaintiffs
undoubtedly can prove no set of facts consistent with their allegations that would
entitle them to relief. . . . Though decidedly liberal, this standard does require
more than bare assertions of legal conclusions. . . . Plaintiffs’ obligation to
provide the “grounds” of their entitlement to relief requires more than labels and
conclusions or a formulaic recitation of the elements of the cause of action. The
factual allegations, assumed to be true, must do more than create speculation or
suspicion of a legally cognizable cause of action; they must show entitlement to
relief. . . . To state a valid claim, a complaint must contain either direct or
inferential allegations respecting all the material elements to sustain recovery
under some viable legal theory.
League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007) (citations
omitted; emphasis in original); see also Minadeo v. ICI Paints, 398 F.3d 751, 762-63 (6th Cir.
2005) (complaint insufficient to give notice of statutory claim); Savage v. Hatcher, 109 F. App’x
759, 761 (6th Cir. 2004); Coker v. Summit County Sheriff=s Dep’t, 90 F. App’x 782, 787 (6th Cir.
2003) (affirming dismissal of pro se complaint where plaintiff “made ‘bare bones,’ conclusory
assertions that do not suffice to state a cognizable constitutional claim”); Foundation for Interior
Design Educ. Research v. Savannah College of Art & Design, 244 F.3d 521, 530 (6th Cir. 2001)
(the complaint must “‘allege a factual predicate concrete enough to warrant further
proceedings’”) (citation omitted); Mitchell v. Community Care Fellowship, 8 F. App’x 512, 513
(6th Cir. 2001); Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 406 (6th Cir. 1998); Scheid v.
Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988) (“[M]ore than bare
assertions of legal conclusions is ordinarily required to satisfy federal notice pleading
requirements.”).
To state a claim under 42 U.S.C. ' 1983,1 a plaintiff must allege two elements: (1) a

1

Section 1983 provides: 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
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deprivation of rights secured by the “Constitution and laws” of the United States (2) committed
by a defendant acting under color of state law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150
(1970).
An inmate does not have a protected right to be assigned to a particular prison, security
classification, housing assignment, or in freedom from administrative segregation and isolation.
Olim v. Wakinekona, 461 U.S. 238 (1983); Meachum v. Fano, 427 U.S. 215 (1976); Montanye v.
Haymes, 427 U.S. 236 (1976). See Sandin v. Conner, 515 U.S. 472, 484-87 (1995) (confinement
in particular part of prison or jail does not implicate due process absent “atypical and significant
hardship” “in relation to the ordinary incidents of prison life”). The allegation that Plaintiff was
denied a cell change when he developed problems with his cellmate does not amount to an
allegation of “atypical and significant hardship” “in relation to the ordinary incidents of prison
life” and thus do not allege the deprivation of any liberty interest. See, e.g., Mackey v. Dyke, 111
F.3d 460, 462-63 (6th Cir. 1997). Plaintiff fails to state a claim against Defendant J. Bass for the
denial of a cell change.
The Constitution also does not provide Plaintiff with a legally enforceable right to
participate in programs that will allow him to earn sentence credits.

Prisoners have no

constitutional right to discretionary release on parole before the expiration of their sentences,
Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979); Inmates of Orient

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. For the purposes of this section, any Act of Congress applicable exclusively to the
District of Columbia shall be considered to be a statute of the District of Columbia.
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Corr. Inst. v. Ohio State Adult Parole Auth., 929 F.2d 233, 235 (6th Cir. 1991), and “[p]risoners
have no liberty interest in opportunities to earn good time credits,” Martin v. O’Brien, 207 F.
App’x 587, 589-90 (6th Cir. 2006). Prisoners also do not have a liberty interest in participation
in prison rehabilitation programs. See Moody v. Daggett, 429 U.S. at 89 n.9; Manning v.
Unknown Parties, 56 F. App’x 710, 711 (6th Cir. 2003) (parole board’s recommendation that
inmate complete a program on impulse control did not create a liberty interest requiring his
admission into the program); Harrington v. Smokoska, No. 92-1912, 1992 WL 376855, at *2
(6th Cir. Dec. 18, 1992) (affirming dismissal of claim for inmate’s removal from halfway house
program, stating “[t]here is no liberty interest in being placed in a community residential
program or within any particular prison in the state of Michigan”); Jones v. Nichols, No. 903068, 1990 WL 151047, at *1 (6th Cir. Oct. 9, 1990) (affirming dismissal of claim that inmate
was denied credit for barber training classes, stating “[t]here is no constitutional right to
vocational or educational programs in prisons. Nor does Jones have a state created liberty
interest in such programs subject to due process protection.”) (citations omitted); Molenkamp v.
Brown, No. 90-1022, 1990 WL 75225, at *1 (6th Cir. June 6, 1990) (“Molenkamp has no liberty
interest in participation in the community release program subject to due process protection, as
participation in the program rests within the discretion of prison authorities.”); Canterino v.
Wilson, 869 F.2d 948, 953 (6th Cir. 1989) (no liberty interest in study and work-release
programs); Frantz v. Mich. Dep’t of Corr., No. 1:11-cv-584, 2011 WL 3100564, at *7 (W.D.
Mich. July 25, 2011) (“Federal courts have consistently found that inmates have no
constitutionally protected liberty interest in prison employment, vocation, rehabilitation, and
educational programs based on the Fourteenth Amendment.”) (collecting cases); Bush v.
5

Hogsten, No. 6:11-CV-00167-KSF, 2011 WL 2682971, at *3 (E.D. Ky. July 11, 2011)
(dismissing habeas petition requesting placement in federal Residential Drug Abuse Treatment
Program, explaining that “it is well settled that prisoners have no constitutionally protected
liberty interest in either discretionary release prior to the expiration of their prison terms or
participation in any prison rehabilitation programs”) (citation omitted); Jones v. Benion, No.
2:10-CV-12360-DT, 2011 WL 2221166, at *3-4 (E.D. Mich. May 13, 2011) (report and
recommendation) (inmate has no liberty or property interest in participation in programs required
for parole), adopted, 2011 WL 2183384 (E.D. Mich. June 6, 2011). Thus, Plaintiff fails to state a
claim against Defendant Cosby for his exclusion from the social life program and Defendant
Hales for refusing to overturn Cosby’s decision.
Henvey has no claim against Defendant Devers for failing to investigate to the extent he
was aware of Plaintiff’s grievances or complaint. Although failure to investigate may give rise
to § 1983 supervisory liability, see Walker v. Norris, 917 F.2d 1449, 1457 (6th Cir. 1990) and
Marchese v. Lucas, 758 F.2d 181, 188 (6th Cir. 1985), the reasoning in Walker and the analysis
in its progeny teach that evidence of the “failure to investigate” can establish municipal liability
only. In Dyer v. Casey, 1995 WL 712765, at **2 (6th Cir. 1995), the Court stated that “the
theory underlying [Marchese and Lucas ( citations omitted)] is that the municipality’s failure to
investigate or discipline amounts to a ‘ratification’ of the officer’s conduct.”
In Walker, the Sixth Circuit distinguished Marchese because the Court “imposed the
broad investigative responsibilities outlined in Marchese upon the Sheriff in his official
capacity.” Walker, 917 F.2d at 1457 (“The Sheriff is sued here in his official capacity and in that
capacity, he had a duty to both know and act.”). In 1998, the Sixth Circuit affirmed the dismissal
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of a claim of supervisory liability based on the “failure to investigate” stating:
Young’s claim against defendants McAninch and Goff is based solely on
their alleged failure to investigate defendant Ward’s behavior towards Young.
Although Young stated that defendants McAninch and Goff had knowledge of his
allegations against defendant Ward, this is insufficient to meet the standard that
they either condoned, encouraged or knowingly acquiesced in the misconduct.
Young v. Ward, 1998 WL 384564 *1 (6th Cir. 1998). Plaintiff’s complaint fails to state a claim
against Defendant Devers.
The Court therefore DISMISSES the claims against Defendants J. Bass, Danny Cosby,
Charles Hales, and Dan Devers for failure to state a claim on which relief may be granted,
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). The Clerk is directed to terminate those parties as
defendants.
It is ORDERED that the Clerk shall issue process for Defendant Tasma Graham Doaks
and deliver said process to the marshal for service. Service shall be made on the individual
defendant either by mail pursuant to Rule 4(e)(1) and Tenn. R. Civ. P. 4.03 and 4.04(10) or
personally pursuant to Rule 4(e)(2) if mail service is not effective. All costs of service shall be
advanced by the United States.
It is further ORDERED that Plaintiff shall serve a copy of every further document filed in
this cause on the attorney for the defendant, or on any defendant if she has no attorney. Plaintiff
shall make a certificate of service on every document filed. Plaintiff shall promptly notify the
Clerk of any change of address or whereabouts. Failure to comply with these requirements, or
any other order of the Court, may result in the dismissal of this case without further notice.
IT IS SO ORDERED.
s/James D. Todd________________
JAMES D. TODD
UNITED STATES DISTRICT JUDGE
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