Bryant v. Jordan et al

Filing 18

ORDER DISMISSING AMENDED COMPLAINT, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE. Signed by Judge James D. Todd on 1/4/16. (Todd, James)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
GEORGE BRYANT,
Plaintiff,
VS.
LIEUTENANT JORDAN, ET AL.,
Defendants.

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No. 14-1229-JDT-egb

ORDER DISMISSING AMENDED COMPLAINT,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE

On September 9, 2014, Plaintiff George Bryant (“Bryant”), an inmate at the
Whiteville Correctional Facility (“WCF”) in Whiteville, Tennessee, filed a pro se
complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1.) After Bryant filed the necessary
documentation (ECF No. 4), the Court issued an order granting leave to proceed in forma
pauperis and assessing the civil filing fee pursuant to the Prison Litigation Reform Act
(“PLRA”), 28 U.S.C. §§ 1915(a)-(b). (ECF No. 6.) On September 9, 2015, the Court
issued an order that dismissed the complaint for failure to state a claim on which relief
may be granted but granted leave to amend within thirty days. (ECF No. 12.) After
being allowed an extension of time (ECF No. 15), Bryant filed an amended complaint on
October 13, 2015 (ECF No. 16). Bryant reasserts his claims against all of the original
Defendants: HCCF Lieutenant Jordan, HCCF Sergeant Amos, HCCF Warden Cherry

Lindamood and Corrections Corporation of America (“CCA”), which operates the
HCCF.

The Clerk shall record Derrick Schofield, Commissioner of the Tennessee

Department of Correction (“TDOC”), as an additional Defendant.
I. The Amended Complaint
In his amended complaint, Bryant alleges that on September 2, 2014, he requested
protective custody placement due to his status as a former Crip gang member who had
announced his intent to leave the gang; however, his request for protective custody was
denied. (ECF No. 16 at 3.) On September 3, 2014, Defendants Jordan and Amos placed
an inmate who was a “close custody,” Crip gang member in Bryant’s cell. (Id.) Bryant
alleges that he informed Defendants Jordan and Amos that the close custody inmate was
not supposed to be placed with him (a minimum custody inmate). (Id.) Bryant further
alleges that Defendant Amos then watched as the close custody inmate assaulted Bryant,
causing him injury. (Id. at 4.) Defendant Amos allegedly did not hit the code button to
try to get Bryant to safety. (Id.) Bryant alleges that the policy of Defendant Lindamood
allowed the placement of a close custody inmate with a minimum custody inmate. (Id.)
Bryant seeks compensatory and punitive damages. (Id. at 8.)
II. Analysis
The Court is required to screen prisoner complaints and to dismiss any complaint,
or any portion thereof, if the complaint—
(1)
is frivolous, malicious, or fails to state a claim upon which
relief may be granted; or
(2)
such relief.

seeks monetary relief from a defendant who is immune from
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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, the court applies the standards under Federal Rules of Civil Procedure
12(b)(6), as stated in Ashcroft v. Iqbal, 556 U.S. 662, 677-79 (2009), and in Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). Hill v. Lappin, 630 F.3d 468, 470-71
(6th Cir. 2010). “Accepting all well-pleaded allegations in the complaint as true, the
Court ‘consider[s] the factual allegations in [the] 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.”).
“A complaint can be frivolous either factually or legally. Any complaint that is
legally frivolous would ipso facto fail to state a claim upon which relief can be granted.”
Hill, 630 F.3d at 470 (citing Neitzke v. Williams, 490 U.S. 319, 325, 328-29 (1989)).
Whether a complaint is factually frivolous under §§ 1915A(b)(1) and
1915(e)(2)(B)(i) is a separate issue from whether it fails to state a claim for
relief. Statutes allowing a complaint to be dismissed as frivolous give
“judges not only the authority to dismiss a claim based on an indisputably
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meritless legal theory, but also the unusual power to pierce the veil of the
complaint’s factual allegations and dismiss those claims whose factual
contentions are clearly baseless.” Neitzke, 490 U.S. at 327, 109 S. Ct. 1827
(interpreting 28 U.S.C. § 1915). Unlike a dismissal for failure to state a
claim, where a judge must accept all factual allegations as true, Iqbal, 129
S. Ct. at 1949-50, a judge does not have to accept “fantastic or delusional”
factual allegations as true in prisoner complaints that are reviewed for
frivolousness. Neitzke, 490 U.S. at 327-28, 109 S. Ct. 1827.
Id. at 471.
“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 (quoting Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004)). Pro se litigants and
prisoners are not exempt from the requirements of the Federal Rules of Civil Procedure.
Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989); see also Brown v. Matauszak, No. 092259, 2011 WL 285251, at *5 (6th Cir. Jan. 31, 2011) (affirming dismissal of pro se
complaint for failure to comply with “unique pleading requirements” and stating “a court
cannot ‘create a claim which [a plaintiff] has not spelled out in his pleading’”) (quoting
Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975)) (alteration in
original); 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”); cf. Pliler v.
Ford, 542 U.S. 225, 231 (2004) (“District judges have no obligation to act as counsel or
paralegal to pro se litigants.”); Young Bok Song v. Gipson, 423 F. App’x 506, 510 (6th
Cir. 2011) (“[W]e decline to affirmatively require courts to ferret out the strongest cause
of action on behalf of pro se litigants. Not only would that duty be overly burdensome, it
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would transform the courts from neutral arbiters of disputes into advocates for a
particular party. While courts are properly charged with protecting the rights of all who
come before it, that responsibility does not encompass advising litigants as to what legal
theories they should pursue.”).
Bryant filed a nine-page, typed amended complaint pursuant to 42 U.S.C. § 1983.
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 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, except that in any action brought against a judicial
officer for an act or omission taken in such officer's judicial capacity,
injunctive relief shall not be granted unless a declaratory decree was
violated or declaratory relief was unavailable. 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.
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) a
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).
In his amended complaint, Bryant has asserted new claims against Defendant
Schofield and has elaborated somewhat on his claims against the original Defendants.
However, he has failed to cure the deficiencies therein.
Bryant has no claim against Defendant Schofield in his official capacity. “[A] suit
against a state official in his or her official capacity is not a suit against the official but
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rather is a suit against the official’s office. As such, it is no different from a suit against
the State itself.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) (citation
omitted). Any claims against Defendant Schofield in his official capacity are asserted
against the State of Tennessee.
The Eleventh Amendment to the United States Constitution provides that “[t]he
Judicial power of the United States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United States by Citizens of another
State, or by Citizens or Subjects of any Foreign State.”

U.S. Const. amend. XI. The

Eleventh Amendment has been construed to prohibit citizens from suing their own states
in federal court. Welch v. Tex. Dep’t of Highways & Pub. Transp., 483 U.S. 468, 472
(1987); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Employees
of Dep’t of Pub. Health & Welfare v. Mo. Dep’t of Pub. Health & Welfare, 411 U.S. 279,
280 (1973); see also Va. Office for Protection & Advocacy v. Stewart, ___ U.S. ___, 131
S. Ct. 1632, 1638 (2011) (“A State may waive its sovereign immunity at its pleasure, and
in some circumstances Congress may abrogate it by appropriate legislation. But absent
waiver or valid abrogation, federal courts may not entertain a private person’s suit against
a State.” (citations omitted)). By its terms, the Eleventh Amendment bars all suits,
regardless of the relief sought. Pennhurst, 465 U.S. at 100-01. Tennessee has not waived
its sovereign immunity. Tenn. Code Ann. § 20-13-102(a). Moreover, a state is not a
person within the meaning of 42 U.S.C. § 1983. Lapides v. Bd. of Regents of the Univ.
Sys. of Ga., 535 U.S. 613, 617 (2002); Will, 491 U.S. at 71. Therefore, the claims against
Defendant Schofield in his official capacity are barred.
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Bryant’s claims against Defendants Lindamood, Jordan and Amos in their official
capacities are properly brought against their employer, CCA, which has also been named
as a Defendant. However, the amended complaint fails to state a claim against CCA for
the same reasons the claims against CCA in the original complaint were found to be
deficient. (Order, ECF No. 12 at 6.) Bryant alleges, in a conclusory manner, that
Defendant Lindamood’s policy and custom resulted in the denial of Bryant’s request for
protective custody and the placement of a close custody inmate in the cell with him,
leading to the assault. (ECF No. 16 at 4.) These added allegations are not sufficient to
show that “a policy or well settled custom” of CCA was the “moving force” behind
Bryant’s alleged deprivation of rights. See Braswell v. Corr. Corp. of Am., 419 F. App’x
622, 627 (6th Cir. 2011).
Bryant’s amended complaint also fails to state a claim against Defendants
Lindamood and Schofield in their individual capacities for the same reasons stated with
regard to Defendant Lindamood in the previous order. (Order, ECF No. 12 at 5-6.)
Nothwithstanding the amended complaint’s vague allegations that these Defendants
failed to follow policy, Bryant does not sufficiently allege that either Lindamood or
Schofield, through their own actions, violated Plaintiff’s rights.1
Bryant’s amended complaint provides no significant new allegations in support of
his claims that Defendants Jordan and Amos failed to protect him from his fellow inmate.

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Plaintiff does not allege that either Lindamood or Schofield made the actual decision to
deny his request for protective custody, as opposed to merely having supervisory responsibility
over those who did.
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Bryant again contends that Jordan and Amos were informed that a close custody inmate
should not be placed with a minimum custody inmate. (ECF No. 16 at 3-4.) However,
there is no allegation that either Jordan or Amos knew Bryant was a former crip gang
member, knew the close custody inmate was a current crip gang member, or knew of any
other reason Bryant would have been at risk of assault by the close custody inmate.
Thus, there is no allegation that these Defendants knew of and disregarded an excessive
risk to Bryant’s safety. See Farmer v. Brennan, 511 U.S. 825, 835 (1994).
For the foregoing reasons, Bryant’s amended complaint is subject to dismissal in
its entirety for failure to state a claim on which relief may be granted.
III. Conclusion
The Court DISMISSES Bryant’s amended complaint for failure to state a claim on
which relief can be granted, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii)-(iii) and
1915A(b(1)-(2).
Pursuant to 28 U.S.C. §1915(a)(3), the Court must also consider whether an appeal
by Bryant in this case would be taken in good faith. The good faith standard is an
objective one. Coppedge v. United States, 369 U.S. 438, 445 (1962). The test for whether
an appeal is taken in good faith is whether the litigant seeks appellate review of any issue
that is not frivolous. Id. It would be inconsistent for a district court to determine that a
complaint should be dismissed prior to service on the Defendants, but has sufficient merit
to support an appeal in forma pauperis. See Williams v. Kullman, 722 F.2d 1048, 1050
n.1 (2d Cir. 1983). The same considerations that lead the Court to dismiss this case for
failure to state a claim also compel the conclusion that an appeal would not be taken in
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good faith. Therefore, it is CERTIFIED, pursuant to 28 U.S.C. § 1915(a)(3), that any
appeal in this matter by Bryant would not be taken in good faith.
The Court must also address the assessment of the $505 appellate filing fee if
Bryant nevertheless appeals the dismissal of this case. A certification that an appeal is
not taken in good faith does not affect an indigent prisoner plaintiff’s ability to take
advantage of the installment procedures contained in § 1915(b).

See McGore v.

Wrigglesworth, 114 F.3d 601, 610-11 (6th Cir. 1997), partially overruled on other
grounds by LaFountain, 716 F.3d at 951. McGore sets out specific procedures for
implementing the PLRA, 28 U.S.C. § 1915(a)-(b). Therefore, Bryant is instructed that if
he wishes to take advantage of the installment procedures for paying the appellate filing
fee, he must comply with the procedures set out in McGore and § 1915(a)(2) by filing an
updated in forma pauperis affidavit and a current, certified copy of his inmate trust
account for the six months immediately preceding the filing of the notice of appeal.
For analysis under 28 U.S.C. § 1915(g) of future filings, if any, by Bryant, this is
the first dismissal of one of his cases as frivolous or for failure to state a claim. This
“strike” shall take effect when judgment is entered. Coleman v. Tollefson, 135 S. Ct.
1759, 1763-64 (2015).
The Clerk is directed to prepare a judgment.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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