Walton v. Jones et al

Filing 13

ORDER DISMISSING CLAIMS, CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE. Signed by Judge James D. Todd on 7/29/16. (Todd, James)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
JEFFERY WALTON,
Plaintiff,
VS.
JENATTA JONES, ET AL.,
Defendants.

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No. 14-1299-JDT-egb

ORDER DISMISSING CLAIMS,
CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE

On October 29, 2014, Plaintiff Jeffery Walton (“Walton”), an inmate at the Whiteville
Correctional Facility (“WCF”) in Whiteville, Tennessee, filed a pro se complaint pursuant to 42
U.S.C. § 1983 accompanied by a motion to proceed in forma pauperis. (ECF Nos. 1 & 2.) In an
order issued October 30, 2014, the Court granted leave to proceed in forma pauperis and
assessed the civil filing fee pursuant to the Prison Litigation Reform Act (“PLRA”), 28 U.S.C.
§§ 1915(a)-(b). (ECF No. 4.) On February 5, 2016, the Court dismissed Walton’s complaint and
granted leave to amend. (ECF No. 8.) On February 29, 2016, the Court granted Walton’s
motion for extension of time to file amended complaint. (ECF Nos. 9 & 10.) On March 7, 2016,
Walton filed an Amended Complaint. (ECF No. 11.) The Clerk shall record the Defendants as
WCF Librarian Yolanda Gray and WCF Education Principal Dana Bell.1 Defendants are sued in
their individual and official capacities.

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Walton did not include previous defendants: WCF Jobs Coordinator Jenatta Jones;

I. The Complaint
Walton claims that the Defendant Gray violated his First Amendment right to access the
courts and to petition the government for redress of grievances, and that Defendant Gray’s denial
of library access was in retaliation for Walton’s filing of grievances. (Amended Compl. at 4 & 8,
ECF No. 11.)
On February 4, 2014, Walton informed Defendant Gray that he had a 60-day deadline in
which to file an appeal to the Tennessee Supreme Court. (Id.) From February 6 to February 10,
2014, Walton did not receive any passes to the library or to the legal aids. (Id. at 5.) On
February 11, 2014, Walton informed Defendant Gray that he needed additional library time and
then filed a grievance against Defendant Gray for denying him access to the library. (Id. see also
Exhibits 4.1 & 4.5, ECF No 11-5.) Walton contends that from February 11, 2014 until Walton’s
application to the Supreme Court was due, Defendant Gray, in retaliation for Walton’s grievance,
only issued Walton passes during his regular work hours, when he could not go to the library,
and would only let him see the legal aide for fifteen minutes at a time, if at all.

(Amended

Compl. at 5 & 8, ECF No. 11.) As a result, Walton was only able to go to the library ten days of
the sixty days he was given to file to the Tennessee Supreme Court.. (Amended Compl. at 5 &
8, ECF No. 11.) Walton alleges that Defendant Gray’s retaliatory behavior caused him to miss
the sixty day deadline to file a Rule 11 application to the Tennessee Supreme Court. (Id. at 6 &
8.)

WCF Business Manager First Name Unknown (“FNU”) Johnson; WCF Assistant Warden of
Programs FNU Devers and WCF Grievance Sergeant (“Sgt.”) F. Johnson in the amended
complaint.
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Walton provided that in his appeal to the Tennessee Court of Criminal Appeals, No.
W2012-01609-CCA-MR3_CD, he argued that there was insufficient evidence at trial to convict
him. (Id. see also http://www.tncourts.gov/sites/default/files/waltonjeffreyopn.pdf.) Walton
contended that the “intermediate court’s decision was in error, and there was: (1) the need to
secure uniformity of decision; and (2) the need for exercise of the Supreme Court’s supervisory
authority.” (Amended Compl. at 6.) Thus, Walton continues, the Tennessee Supreme Court
would have, “granted permission to appeal . . . and would have reversed Plaintiff’s convictions
and judgements and dismissed this criminal case with prejudice.” (Id.) Further, because the
appeal never went to the Tennessee Supreme Court, Walton was prevented from any appeal to
the Federal Supreme court because he did not exhaust his remedies within the state of Tennessee.
(Id. at 7.)
Additionally, Walton alleged Defendant Bell also engaged in retaliatory behavior against
him. (Id. at 9.) Walton contends that Defendant Bell and Gray are good friends. (Id.) On
March 20, 2014, after filing his March 20, 2014, grievances against Defendant Gray, Defendant
Bell requested a job dismissal for Walton. (Id.) Walton filed a grievance contending that this
job dismissal was retaliation by Defendants Bell and Gray and was administered and/or approved
by all named Defendants. (Id.; see also Ex. 5.1 & 5.2, ECF No. 11-6.)
After Walton was dismissed from his position, no other skilled position supervisor would
hire him. (Amended Compl. at 10.) Walton was eventually placed in an unskilled position
which cut his pay in half. (Id.) Walton contends that this deterred him from filing additional
grievances. (Id.) Additionally, Walton contends that the diminished earnings hampered his
ability to pay his attorney fees and court costs increasing his overall debt as well as prevented
him from hiring a private investigator to assist in his post-conviction issues. (Id)

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Walton alleges that Defendant Bell directly retaliated against him for filing grievances
against Defendant Gray and, that as supervisor for Defendant Gray, Defendant Bell also allowed
for the denial of access to the law library. (Id.) Walton contends that his loss of job and inability
to hire a competent attorney or private investigator has resulted in his suffering more that ‘de
minimus’ mental anguish, worry, stress, and pain and suffering.” (Id.at 11.)
Walton seeks compensatory and punitive damages. (Id. at 12.)
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)

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, 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

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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 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. 09-2259, 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.

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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 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.”).
Walton filed his 12-page, handwritten amended complaint under 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).

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Walton’s allegations against Defendants in their official capacity are properly asserted
against their employer, Corrections Corporation of America (CCA). The amended complaint
does not assert a valid claim against CCA. “A private corporation that performs the traditional
state function of operating a prison acts under color of state law for purposes of § 1983.” Thomas
v. Coble, 55 F. App’x 748, 748 (6th Cir. 2003) (citing Street v. Corr. Corp. of Am., 102 F.3d 810,
814 (6th Cir. 1996)); see also Parsons v. Caruso, 491 F. App’x 597, 609 (6th Cir. 2012)
(corporation that provides medical care to prisoners can be sued under § 1983). The Sixth Circuit
has applied the standards for assessing municipal liability to claims against private corporations
that operate prisons or provide medical care to prisoners. Thomas, 55 F. App’x at 748-49; Street,
102 F.3d at 817-18; Johnson v. Corr. Corp. of Am., 26 F. App’x 386, 388 (6th Cir. 2001). CCA
“cannot be held liable under a theory of respondeat superior.” Braswell v. Corr. Corp. of Am.,
419 F. App’x 622, 627 (6th Cir. 2011). Instead, to prevail on a § 1983 claim against CCA,
Plaintiff “must show that a policy or well-settled custom of the company was the ‘moving force’
behind the alleged deprivation” of his rights. Id. The amended complaint does not allege that
Walton suffered any injury because of an unconstitutional policy or custom of CCA.
The remainder of Walton’s amended complaint attempts to eradicate the details missing
from his original complaint; however, Walton conclusory language does not create sufficient
factual basis to support his claims.
Walton alleges that because he was not allowed adequate access to the law library, he
was denied permission to appeal by the Tennessee Supreme Court. In his amended complaint,
Walton contends that the Tennessee Supreme Court was likely to grant his appeal because he is
able to show that there was insufficient evidence at his trial for conviction. (Compl. at 6, ECF
No. 11.)) The Court construes these allegations as a court access claim. It is true that a prisoner

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has the right, protected by the First Amendment, “to petition the Government for a redress of
grievances.” The scope of this right in relation to prisoners has been enunciated in Bounds v.
Smith, 430 U.S. 817 (1977), and its progeny. According to that body of caselaw, the scope of
this right for prisoners is limited. The Sixth Circuit has previously held that the right of access to
the courts requires affirmative assistance for inmates “only in the preparation of legal papers in
cases involving constitutional rights and other civil rights actions related to their incarceration.”
Knop v. Johnson, 977 F.2d 996, 1009 (6th Cir. 1992) (emphasis added). See also John L. v.
Adams, 969 F.2d 228, 236 (6th Cir. 1992).
This view was subsequently adopted by the United States Supreme Court:
Bounds does not guarantee inmates the wherewithal to transform
themselves into litigating engines capable of filing everything from shareholder
derivative actions to slip-and-fall claims. The tools it requires to be provided are
those that the inmates need in order to attack their sentences, directly or
collaterally, and in order to challenge the conditions of their confinement.
Impairment of any other litigating capacity is simply one of the incidental (and
perfectly constitutional) consequences of conviction and incarceration.
Lewis v. Casey, 518 U.S. 343, 355 (1996). The Court declared that no claim exists under
Bounds without an actual injury. Inmates must have sought “to file nonfrivolous legal claims
challenging their convictions or conditions of confinement.” Id. at 356 (emphasis added). No
actual injury occurs without a showing that such a claim “has been lost or rejected, or that the
presentation of such a claim is currently being prevented.” Id. As recognized even before Lewis,
“[w]e are concerned with a right of access to the courts, not necessarily to a prison law library.”
Walker v. Mintzes, 771 F.2d 920, 932 (6th Cir. 1985).
Walton includes details concerning the legal claim for which he sought review, including
the fact that the Tennessee Court of Criminal Appeals did not find the factual evidence to support
overturning his conviction. Walton has not established that his appeal has any greater chance of

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success with the Tennessee Supreme Court. Moreover, the Tennessee Supreme Court’s decision
to grant permission to appeal in non-capital cases is entirely discretionary. Pursuant to Rule
11(a) of the Tennessee Rules of Appellate Procedure:
[T]he following, while neither controlling nor fully measuring the court’s
discretion, indicate the character of reasons that will be considered: (1) the need
to secure uniformity of decision, (2) the need to secure settlement of important
questions of law, (3) the need to secure settlement of questions of public interest,
and (4) the need for the exercise of the Supreme Court’s supervisory authority.
Because Walton has not shown any likelihood that the Tennessee Supreme Court would have
granted permission to appeal, he has not sufficiently alleged that a nonfrivolous legal claim was
lost or rejected. See Shehee v. Grimes, 39 F. App’x 127, 129 (6th Cir. 2002) (affirming dismissal
of claim arising from interference with prisoner’s petition for a writ of certiorari).
Walton has alleged that the Defendants retaliated against him for the filing of grievances.
“Retaliation on the basis of a prisoner’s exercise of his First Amendment rights violates the
Constitution.” Harbin-Bey v. Rutter, 420 F.3d 571, 579 (6th Cir. 2005).
A retaliation claim essentially entails three elements: (1) the plaintiff
engaged in protected conduct; (2) an adverse action was taken against the plaintiff
that would deter a person of ordinary firmness from continuing to engage in that
conduct; and (3) there is a causal connection between elements one and two—that
is, the adverse action was motivated at least in part by the plaintiff’s protected
conduct.
Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc); see also Scott v. Churchill,
377 F.3d 565, 569 (6th Cir. 2004) (same); Smith v. Campbell, 250 F.3d 1032, 1036 (6th Cir.
2001) (same). “If the plaintiff is able to make such a showing, the defendant then has the burden
of showing that the same action would have been taken even absent the plaintiff’s protected
conduct.” Smith, 250 F.3d at 1037.
The filing of a non-frivolous grievance is protected conduct under the First Amendment.
Thomas v. Eby, 481 F.3d 434, 440 (6th Cir. 2007); Herron v. Harrison, 203 F.3d 410, 415 (6th
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Cir. 2000) (“An inmate has an undisputed First Amendment right to file grievances against
prison officials on his own behalf.”). A grievance is frivolous if it complains of conduct that is
not legally actionable. Herron, 203 F.3d at 415 (“Herron’s pursuit of legal claims against
[prison] officials . . . was protected conduct only to the extent that the underlying claims had
merit.”); see Jackson v. Kronberg, 111 F. App’x 815, 819 (6th Cir. 2004) (grievance that
corrections officer has a spider-web tattoo that serves as an “Aryan Nation symbol” not grievable
so the filing of the grievance is not protected conduct); Ziegler v. State of Mich., 90 F. App’x
808, 810 (6th Cir. 2004); Henley v. Pitcher, 20 F. App’x 396, 397 (6th Cir. 2001); cf. Smith v.
Craven, 61 F. App’x 159, 162 (6th Cir. 2003) (inmate did not engage in protected conduct by
litigating loss of property claim against prison in state court because such a claim is not
encompassed within an inmate’s First Amendment rights).
Walton’s grievance against Gray complained that in retaliation for his grievances,
Defendant Gray denied him access to the law library and to legal aides. (Amended Compl. at 8,
ECF No. 11.) As previously discussed, Walton has no cognizable claim against Defendants
Gray or Bell for denial of access to the courts. Further, Walton does not have a claim against
Defendant Bell for the dismissal from his skilled position. “[T] he Constitution does not create a
property or liberty interest in prison employment [and] any such interest must be created by state
law by ‘language of an unmistakably mandatory character.’” Newsom v. Norris, 888 F.2d 371,
374 (6th Cir. 1989) (quoting Ingram v. Papalia, 804 F.2d 595, 596-97 (10th Cir. 1986))
(additional citations omitted). The Sixth Circuit has consistently rejected claims by prisoners
based on their loss of, or failure to be assigned to, a prison job. See, e.g., Shields v. Campbell,
No. 03-5635, 2003 WL 22905312, at *1 (6th Cir. Nov. 26, 2003); Carter v. TDOC, 69 F. App'x
678, 680 (6th Cir. 2003); Jewell v. Leroux, 20 F. App'x 375, 377 (6th Cir. 2001); Dellis v.

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Corrections Corp. of Am., 257 F.3d 508, 511 (6th Cir. 2001); Ivey v. Wilson, 832 F.2d 950, 955
(6th Cir. 1987). Because there is no property right in a specific job, likewise there is no property
right to a specific wage for work performed. Rather, prison administrators may assign inmates
jobs and wages at their discretion. Altizer v. Paderick, 569 F.2d 812 (4th Cir. 1978); Anderson v.
Hascall, 566 F. Supp. 1492, 1494 (D. Minn. 1983); Chapman v. Plageman, 417 F. Supp. 906,
908 (W.D. Va. 1976).
Because Walton’s claims under the grievances are not “legally actionable,” he does not
have a First Amendment claim for retaliation against either Defendant.
For all of the foregoing reasons, Walton’s complaint is subject to dismissal in its entirety
for failure to state a claim on which relief can be granted.
III. Standard for Leave to Amend
The Sixth Circuit has held that a district court may allow a prisoner to amend his
complaint to avoid a sua sponte dismissal under the PLRA. LaFountain v. Harry, 716 F.3d 944,
951 (6th Cir. 2013); see also Brown v. R.I., No. 12-1403, 2013 WL 646489, at *1 (1st Cir. Feb.
22, 2013) (per curiam) (“Ordinarily, before dismissal for failure to state a claim is ordered, some
form of notice and an opportunity to cure the deficiencies in the complaint must be afforded.”).
Leave to amend is not required where a deficiency cannot be cured. Brown, 2013 WL 646489, at
*1; Gonzalez-Gonzalez v. United States, 257 F.3d 31, 37 (1st Cir. 2001) (“This does not mean, of
course, that every sua sponte dismissal entered without prior notice to the plaintiff automatically
must be reversed. If it is crystal clear that the plaintiff cannot prevail and that amending the
complaint would be futile, then a sua sponte dismissal may stand.”); Grayson v. Mayview State
Hosp., 293 F.3d 103, 114 (3d Cir. 2002) (“in forma pauperis plaintiffs who file complaints
subject to dismissal under Rule 12(b)(6) should receive leave to amend unless amendment would

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be inequitable or futile”); Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001) (“We agree with
the majority view that sua sponte dismissal of a meritless complaint that cannot be salvaged by
amendment comports with due process and does not infringe the right of access to the courts.”).
In this case, because the deficiencies in Walton’s amended complaint cannot be cured, leave to
amend is not warranted.
IV. Appeal Issues
Pursuant to 28 U.S.C. §1915(a)(3), the Court must also consider whether an appeal by
Walton 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 an amended 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 good faith.
V. Conclusion
The Court DISMISSES Walton’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) and 1915A(b(1). Leave to
amend is DENIED because the deficiencies in Walton’s complaint cannot be cured. It is also
CERTIFIED, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal in this matter by Walton would
not be taken in good faith.
The Court must also address the assessment of the $505 appellate filing fee if Walton
nevertheless appeals the dismissal of this case. A certification that an appeal is not taken in good

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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, Walton
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 Walton, this is the first
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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