Perez v. Bond et al
Filing
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ORDER DIMISSING CLAIMS; DENYING MOTION 6 TO BE GRANTED INCOMPATIBILITY; AND ORDER GRANTING LEAVE TO AMEND the complaint. (Any amendment must be filed wi 30 das entry of this order). Signed by Judge James D. Todd on 9/18/2015. (Todd, James)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
MARCELLO HERNANDEZ PEREZ,
Plaintiff,
VS.
MELVIN BOND, et. al.,
Defendants.
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No. 14-1339-JDT-egb
ORDER DISMISSING CLAIMS,
DENYING MOTION TO BE GRANTED INCOMPATIBILITY,
AND GRANTING LEAVE TO AMEND
On December 12, 2014, Plaintiff Marcello Hernandez Perez (“Perez”), who at the time of
filing was an inmate at Haywood County Justice Complex (“HCJC”) in Brownsville, Tennessee,
filed a pro se complaint pursuant to 42 U.S.C. § 1983 and a motion to proceed in forma pauperis.
(ECF Nos. 1 & 2). In an order issued December 15, 2014, the Court granted leave to proceed in
forma pauperis and assessed the civil filing fee pursuant to the Prison Litigation Reform Act of
1995 (“PLRA”), 28 U.S.C. §§ 1915(a)-(b). (ECF No. 5) The Clerk shall record the defendants
as Sheriff Melvin Bond, Captain (“Cpt.”) Tonya Fisher, Lieutenant (“Lt.”) Cedrick Tyus,
Sergeant (“Sgt.”) Sharon S. Bond, Officer Nancy Starks, Officer First Name Unknown (“FNU”)
Kennedy, Officer Tony Peete, Officer Ronnie Jones, Officer FNU Clark, Officer FNU Smith,
Officer FNU Flagg, RN Janet Webb, FNP Don Willie, Cook 2 Mary Taylor, and Officer John
Williams.
I. THE COMPLAINT
Perez alleges that he has filed grievances about the HCJC conditions, to Defendants
Melvin Bond, Fisher, Tyus, Sharon Bond, Clark, Smith, and Flagg about conditions at the HCJC,
but they have not made any changes to his cell conditions. (Compl. 2, ECF No. 1.) Perez states
that he feels his life is in imminent danger because he is housed with a dangerous inmate,
McFarland. (Id.) Perez alleges that Defendant Kennedy was a witness to his cellmate’s erratic
behavior when he saw McFarland use a combination of sour milk and urine for washing his face,
and Defendant Jones allegedly admitted that McFarland, who is known by Jones to dislike
Mexicans, will knife a man. (Id.) Further, Perez contends that Defendants Webb, Willie, Taylor,
and Williams overheard and witnessed McFarland’s use of bodily waste for inappropriate use
and did nothing about it. (Id.)
Perez asks the Court to ensure he is observed by responsible staff because his life is in
imminent danger due to inmate McFarland.
II. ANALYSIS
A.
Screening and Standard
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 standards under Federal Rule of Civil Procedure 12(b)(6), as stated in
2
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 wellpleaded 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 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.
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“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.
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.”).
B.
§ 1983 Claim
Perez filed his complaint on the court-supplied form for actions 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,
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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).
1.
Twombly Standard
The complaint contains no factual allegations against Defendants Starks and Peete.
When a complaint fails to allege any action by a defendant, it necessarily fails to “state a claim
for relief that is plausible on its face.” Twombly, 550 U.S. at 570.
3.
Jail Conditions Claims
Perez’s complaint alleges that he is living under dangerous conditions due to an unstable
cellmate. (Compl. 1, ECF No. 1.) These claims arise under the Eighth Amendment. The
complaint does not allege that any of the Defendants are directly responsible for the conditions at
the jail, but rather that the conditions themselves are unconstitutional.
An Eighth Amendment claim consists of both objective and subjective components.
Farmer v. Brennan, 511 U.S. 825, 834 (1994); Hudson v. McMillian, 503 U.S. 1, 8 (1992);
Wilson v. Seiter, 501 U.S. 294, 298 (1991); Williams v. Curtin, 631 F.3d at 383; Mingus v.
Butler, 591 F.3d 474, 479-80 (6th Cir. 2010).
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The objective component requires that the
deprivation be “sufficiently serious.” Farmer, 511 U.S. at 834; Hudson, 503 U.S. at 8; Wilson,
501 U.S. at 298.
To satisfy the objective component of an Eighth Amendment claim, a prisoner must show
that he “is incarcerated under conditions posing a substantial risk of serious harm,” Farmer, 511
U.S. at 834; see also Miller v. Calhoun Cnty., 408 F.3d 803, 812 (6th Cir. 2005), or that he has
been deprived of the “minimal civilized measure of life’s necessities.” Wilson, 501 U.S. at 298
(internal quotation marks omitted); see also Hadix v. Johnson, 367 F.3d 513, 525 (6th Cir. 2004)
(“To succeed in an Eighth Amendment challenge, [a prisoner] must establish that . . . a single,
identifiable necessity of civilized human existence is being denied . . . .”). The Constitution
“does not mandate comfortable prisons.” Wilson, 501 U.S. at 298 (internal quotation marks and
citation omitted). “[R]outine discomfort is part of the penalty that criminal offenders pay for
their offenses against society.” Hudson, 503 U.S. at 9 (internal quotation marks and citation
omitted). Thus, “extreme deprivations are required to make out a conditions-of-confinement
claim.” Id. at 9.
In considering the types of conditions that constitute a substantial risk of serious harm,
the Court evaluates not only the seriousness of the potential harm and the likelihood that the
harm will actually occur, but evidence that unwilling exposure to that risk violates contemporary
standards of decency, i.e., that society does not choose to tolerate the risk in its prisons. Helling
v. McKinney, 509 U.S. 25, 36 (1993). The Supreme Court has also emphasized that prisoners
can rarely establish an Eighth Amendment violation from a combination of conditions of
confinement that, in themselves, do not rise to the level of a constitutional violation:
Some conditions of confinement may establish an Eighth Amendment violation
“in combination” when each would not do so alone, but only when they have a
mutually enforcing effect that produces the deprivation of a single, identifiable
human need such as food, warmth, or exercise—for example, a low cell
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temperature at night combined with a failure to issue blankets. To say that some
prison conditions may interact in this fashion is a far cry from saying that all
prison conditions are a seamless web for Eighth Amendment purposes. Nothing
as amorphous as “overall conditions” can rise to the level of cruel and unusual
punishment when no specific deprivation of a single human need exists.
Wilson, 501 U.S. at 304-05 (citation omitted); see also Thompson, 29 F.3d at 242 (“Eighth
Amendment claims may not be based on the totality of the circumstances, but rather must
identify a specific condition that violates” a particular right); Carver v. Knox Cnty., Tenn., 887
F.2d 1287, 1294 (6th Cir. 1989) (same).
To establish the subjective component of an Eighth Amendment violation, a prisoner
must demonstrate that the official acted with the requisite intent, that is, that he had a
“sufficiently culpable state of mind.” Farmer, 511 U.S. at 834; see also Wilson, 501 U.S. at 297,
302-03. The plaintiff must show that the prison officials acted with “deliberate indifference” to a
substantial risk that the prisoner would suffer serious harm. Farmer, 511 U.S. at 834; Wilson,
501 U.S. at 303; Helling, 509 U.S. at 32; Woods v. Lecureux, 110 F.3d 1215, 1222 (6th Cir.
1997); Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996); Taylor v. Mich. Dep’t of
Corr., 69 F.3d 76, 79 (6th Cir. 1995). 1 “[D]eliberate indifference describes a state of mind more
blameworthy than negligence.” Farmer, 511 U.S. at 835. Thus,
[a] prison official cannot be found liable under the Eighth Amendment for
denying an inmate humane conditions of confinement unless the official knows of
and disregards an excessive risk to inmate health or safety; the official must both
be aware of facts from which the inference could be drawn that a substantial risk
of serious harm exists, and he must also draw the inference. This approach
1
On June 22, 2015, the Supreme Court held, in Kingsley v. Hendrickson, 133 S. Ct. 2466
(2015), that excessive force claims brought by pre-trial detainees must be analyzed under a
standard of objective reasonableness, rejecting a subjective standard that takes into account a
defendant’s state of mind. Id. at 2472-73. It is unclear whether or to what extent the holding in
Kingsley will affect the deliberate indifference standard for other prison conditions claims, which
the Sixth Circuit applies to both pre-trial detainees and convicted prisoners. Sours v. Big Sandy
Reg’l Jail Auth., 593 F. App’x 478, 483 (6th Cir. 2014). Absent further guidance, the Court will
continue to apply the deliberate indifference analysis to these claims.
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comports best with the text of the Eighth Amendment as our cases have
interpreted it. The Eighth Amendment does not outlaw cruel and unusual
“conditions”; it outlaws cruel and unusual “punishments.” An act or omission
unaccompanied by knowledge of a significant risk of harm might well be
something society wishes to discourage, and if harm does result society might
well wish to assure compensation. The common law reflects such concerns when
it imposes tort liability on a purely objective basis. . . . But an official’s failure to
alleviate a significant risk that he should have perceived but did not, while no
cause for commendation, cannot under our cases be condemned as the infliction
of punishment.
Id. at 837-38, 114 S. Ct. at 1979 (emphasis added; citations omitted); see also Garretson
v. City of Madison Heights, 407 F.3d 789, 796 (6th Cir. 2005) (“If the officers failed to act in the
face of an obvious risk of which they should have known but did not, then they did not violate
the Fourteenth Amendment.”). The subjective component must be evaluated for each defendant
individually. Bishop v. Hackel, 636 F.3d 757, 767 (6th Cir. 2011); see also id. at 768 (“[W]e
must focus on whether each individual Deputy had the personal involvement necessary to permit
a finding of subjective knowledge.”)..
In this case, the complaint contains no allegations that any individual Defendant acted
with deliberate indifference to a known substantial risk to Perez’s health or safety. Perez alleges
that Defendants Kennedy, Jones, Webb, Willie Taylor, and Williams were aware of his
cellmate’s erratic behavior, but there are no facts stating that these defendants drew the
conclusion from this behavior that Perez’s health or safety was in danger. Nor are there any
allegations that Perez has, in fact, suffered any harm due to his cellmate’s behavior. He simply
states that his cellmate acts irrationally and does not like Mexicans (Compl. 2, ECF No. 1.);
however he does not include that his cellmate made any threats to his person or general safety..
The Supreme Court has repeatedly observed that prisons present an "ever-present potential for
violent confrontation." Whitley v. Albers, 475 U.S. 312, 321 (1986) (quoting Jones v. No. Car.
Prisoner’s Labor Union, Inc., 433 U.S. 119, 132 (1977)).
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See also, Wolff v. McDonnell, 418
U.S. 539, 561-62 (1974) (prisons are populated by violent offenders, causing unremitting tension
among inmates and between inmates and guards). Further, Perez is no longer housed at HCJC;
he sent notification to the court that he was transferred to the Bledsoe County Correction Facility
in Pikeville, Tennessee. (ECF No. 5.)
4.
Claims for Failure to Investigate Grievances
The participation of Defendants Melvin Bond, Fisher, Tyus, Sharon Bond, Clark, Smith,
and Flagg in investigating, processing, or denying Perez’s grievances cannot in itself constitute
sufficient personal involvement to state a claim of constitutional dimension. Simpson v. Overton,
79 Fed. Appx. 117, 2003 WL 22435653 (6th Cir. 2003); see also Martin v. Harvey, 14 Fed.
Appx. 307, 2001 WL 669983, at *2 (6th Cir. 2001) ("The denial of the grievance is not the same
as the denial of a request to receive medical care."). Section 1983 liability may not be imposed
against a defendant for "a mere failure to act" based upon information contained in the grievance.
See Shehee, 199 F.3d at 300; Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 727-28 (6th
Cir. 1996).
Perez also has no cause of action against any Defendants for failing to investigate or take
remedial measures to the extent they were aware of Perez’s grievances or complaints. 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 v. Lucas (citations omitted)] is
that the municipality's failure to investigate or discipline amounts to a 'ratification' of the officer's
conduct."
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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
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). There are no accusations of any individual
actions of any of the Defendants condoned, encouraged, or knowingly acquiesced in the
complained of misconduct.
C.
Motion for Incompatiblity
On December 30, 2014, Perez filed a Motion to be Granted Incompatabilty. (ECF No. 6.)
Perez seeks to be granted incompatible status against all Defendants. (Id.) In general, an inmate
does not have a liberty interest in a particular security classification or in freedom from
segregation. Olim v. Wakinekona, 461 U.S. 238, 245 (1983). With no supporting details
provided in his motion other than the request itself and the allegations already discussed in the
complaint itself as not meriting further action, the Court DENIES Perez’s Motion to be Granted
Incompability.
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.
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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
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.”).
IV. CONCLUSION
The Court DISMISSES Perez’s complaint as to all Defendants 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).
However, the court cannot conclude that any amendment to Perez’s claims would be futile as a
matter of law. Therefore, Perez is GRANTED leave to amend his complaint. Any amendment
must be filed within thirty (30) days of the date of entry of this order. Perez is advised that an
amended complaint supersedes the original complaint and must be complete in itself without
reference to the prior pleadings. The text of the complaint must allege sufficient facts to support
each claim without reference to any extraneous document. Any exhibits must be identified by
number in the text of the amended complaint and must be attached to the complaint. All claims
alleged in an amended complaint must arise from the facts alleged in the original complaint or
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the first amended complaint. Perez may add additional defendants provided that the claims
against the new parties arise from the acts and omissions set forth in the original or first amended
complaints. Each claim for relief must be stated in a separate count and must identify each
defendant sued in that count. If Perez fails to file an amended complaint within the time
specified, the Court will assess a strike pursuant to 28 U.S.C. § 1915(g) and enter judgment.
Perez shall promptly notify the Clerk of any change of address or extended absence.
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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