Damron v. Lindamood

Filing 16

ORDER TO MODIFY THE DOCKET, DISMISSING COMPLAINT, CERTIFYING THAT AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE. Signed by Judge James D. Todd on 1/7/2015. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
BOBBY DAMRON,
Plaintiff,
VS.
CHERRY LINDAMOOD,
Defendant.

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No. 14-1294-JDT-egb

ORDER TO MODIFY THE DOCKET, DISMISSING COMPLAINT,
CERTIFYING THAT AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE

On August 27, 2014, Plaintiff, Bobby Damron, Tennessee Department of Correction
(“TDOC”) prisoner number 115744, who was, at the time, an inmate at the Whiteville
Correctional Facility (“WCF”) in Whiteville, Tennessee, filed a pro se complaint pursuant
to 42 U.S.C. § 1983 in the United States District Court for the Middle District of Tennessee.
(ECF No. 1.)1 After Plaintiff filed the necessary documentation (ECF No. 10), United States
District Judge Aleta A. Trauger issued an order on October 24, 2014, granting leave to
proceed in forma pauperis, assessing the civil filing fee pursuant to the Prison Litigation
Reform Act (“PLRA”), 28 U.S.C. §§ 1915(a)-(b), and transferring the case to this district,
where venue is proper (ECF No. 13). The case was docketed in this district on October 24,
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According to the TDOC’s Felony Offender Information, https://apps.tn.gov/foil/,
Plaintiff is currently incarcerated at the South Central Correctional Facility (“SCCF”) in Clifton,
Tennessee. The Clerk is DIRECTED to modify the docket to reflect Plaintiff’s current address.

2014. (ECF No. 14.) The Clerk shall record the Defendant as WCF Warden Cherry
Lindamood.2
Plaintiff alleges that he is sixty years old. Since his arrival at the WCF on April 23,
2014, he has been threatened by other inmates and been forced to fight. (ECF No. 1 at 1.)
After Plaintiff’s fights, the medical staff gives him Tylenol and a muscle balm. (Id. at 4.)
Plaintiff was also injured climbing into a top bunk. (Id.) Plaintiff has difficulties getting
clothing and showers in certain units. (Id.) WCF staff refuse to move Plaintiff to “a laid
back pod.” (Id.) Plaintiff complained to staff and wrote grievances, which caused him to be
“harassed and threatened by staff and inmates.” (Id. at 6.) Staff members gave Plaintiff’s
magazine to another inmate. (Id.) Plaintiff was supposed to have been moved but, as of the
date of the complaint, that had not happened. (Id. at 2.) Plaintiff seeks a transfer to the
Charles B. Bass Correctional Complex in Nashville, Tennessee, or to another, safer
environment. (Id.)
On September 29, 2014, Plaintiff submitted an amended complaint and an unsigned
declaration.3 The amendment, which is titled “Eighth Amendment Cruel and Unusual
Punishment,” reiterates allegations in the original complaint. (ECF No. 5 at 1.) Plaintiff
alleges that he asked to be in protective custody and that he was forced to go into segregation

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The Clerk is DIRECTED to further modify the docket to include the Defendant’s first

name.
3

The Court ordinarily would not consider the declaration because it is unsigned. See
Fed. R. Civ. P. 11(a). However, the Court declines to require Plaintiff to sign his declaration
because it would not alter the outcome of this action.

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on June 27, 2014, because of threats by inmates and staff. (Id. at 1-2.) Plaintiff was released
from segregation on July 20, 2014, at which time he asked to be placed in a protective
custody pod. Plaintiff was forced out of segregation and sent to HB 112, which is not a
protective custody unit. Plaintiff was placed in a cell with inmate Wilson, TDOC number
445701.4 A few days later, Wilson allegedly threatened to do bodily harm to Plaintiff.
Although Plaintiff notified Unit Manager White, Case Manager Askew and Corrections
Officer Jones about the threats, Plaintiff was not moved. (Id. at 2.) White allegedly did not
want Plaintiff to file a grievance. She urged Plaintiff to speak to her instead. Plaintiff was
forced to live with Wilson and could not open his mouth. (Id. at 3.) Finally, in August,
Wilson was reclassified to a lower security level and moved to a program that is like a boot
camp. (Id.)
Plaintiff also alleges that staff tampered with his mail, contending that staff on the first
shift gave his mail to inmate named Hilbred. (Id.) The amended complaint does not specify
any additional relief sought by Plaintiff.
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

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According to the TDOC Felony Offender database, prisoner number 445701 is assigned
to Jerry L. Wilson, who is currently incarcerated at the Turney Center Industrial Complex.

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(2)
such relief.

seeks monetary relief from a defendant who is immune from

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 standards under Fed. R. Civ. P. 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), are
applied. 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). “[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.” Hill, 630 F.3d at 470
(citing Neitzke v. Williams, 490 U.S. 319, 325 (1989)). “Any complaint that is legally
frivolous would ipso facto fail to state a claim upon which relief can be granted.” Id. (citing
Neitzke, 490 U.S. at 328-29).

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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 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. Unlike a dismissal for failure to state a claim, where a judge
must accept all factual allegations as true, a judge does not have to accept
“fantastic or delusional” factual allegations as true in prisoner complaints that
are reviewed for frivolousness.
Id. at 471 (citations and internal quotation marks omitted).
“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, 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); see also Brown v. Matauszak, 415 F. App’x 608,
612, 613 (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))); 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

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the strongest cause of action on behalf of pro se litigants. Not only would that duty be overly
burdensome, it 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.”).
“Article III of the Constitution limits the judicial power to the adjudication of ‘Cases’
or ‘Controversies.’” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 137 (2007) (citing
U.S. Const., art. III, § 2). This is “a cradle-to-grave requirement that must be met in order
to file a claim in federal court and that must be met in order to keep it there.” FialkaFeldman v. Oakland Univ. Bd. of Trs., 639 F.3d 711, 713 (6th Cir. 2011). “[A] federal court
has no authority to give opinions upon moot questions or abstract propositions, or to declare
principles or rules of law which cannot affect the matter in issue in the case before it.”
Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992) (internal quotation
marks omitted); see also Coalition for Gov’t Procurement v. Fed. Prison Indus., Inc., 365
F.3d 435, 458 (6th Cir. 2004) (“Under the ‘case or controversy’ requirement, we lack
authority to issue a decision that does not affect the rights of the litigants.”); Sw. Williamson
Cnty. Cmty. Ass’n, Inc. v. Slater, 243 F.3d 270, 276 (6th Cir. 2001) (same). The mootness
question turns on whether a federal court can afford a litigant any “effectual relief.”
Coalition for Gov’t Procurement, 365 F.3d at 458.
As stated, supra, since the filing of the complaint Plaintiff was transferred from the
WCF in Whiteville, Tennessee, to the SCCF in Clifton, Tennessee. Because the only relief
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Plaintiff sought in the complaint was a transfer, his claims are now moot. Moore v. Curtis,
68 F. App’x 561, 562 (6th Cir. 2003) (claims for declaratory and injunctive relief against
prison staff moot when inmate transferred to another facility); Kensu v. Haigh, 87 F.3d 172,
175 (6th Cir. 1996) (same); Tramber v. Pleasant, No. 4:12CV-P31-M, 2012 WL 4594339,
at *5 (W.D. Ky. Oct. 2, 2012) (inmate’s claim for a transfer and medical care moot when he
was transferred to another facility). Therefore, the Court DISMISSES Plaintiff’s complaint
as moot.
Pursuant to 28 U.S.C. § 1915(a)(3), the Court must also consider whether an appeal
by Plaintiff 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 as moot also compel
the conclusion that an appeal would not be taken in good faith.
Therefore, it is CERTIFIED, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal in
this matter by Plaintiff would not be taken in good faith.
The Court must also address the assessment of the $505 appellate filing fee if Plaintiff
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
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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 v. Harry, 716
F.3d 944, 951 (6th Cir. 2013). McGore sets out specific procedures for implementing the
Prison Litigation Reform Act, 28 U.S.C. § 1915(a)-(b). Therefore, the Plaintiff 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.5
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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The Court has not assessed a “strike” under 28 U.S.C. § 1915(g) because it has not been
determined that the case was subject to dismissal for failure to state a claim or as frivolous when
it was filed.

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