Murrell v. Donahue et al

Filing 6

ORDER ORDER DISMISSING COMPLAINT AND GRANTING LEAVE TO AMEND. Signed by Judge James D. Todd on 4/12/16. (Todd, James)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
ERIC JAMES MURRELL
Plaintiff,
VS.
MICHAEL DONAHUE, ET AL.,
Defendants.

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No. 15-1047-JDT-egb

ORDER DISMISSING COMPLAINT AND GRANTING LEAVE TO AMEND

On March 4, 2015, Plaintiff Erik James Murrell (“Murrell”), Tennessee Department of
Correction (“TDOC”) prisoner number 348136, an inmate at the Hardeman County Correctional
Facility (“HCCF”) 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 March 9, 2015, 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.) The Clerk shall record the Defendants as former HCCF Warden
Michael Donahue; Lieutenant (“Lt.”) Steven Parram; Sergeant (“Sgt.) Arthur Thomas; Officer
(“Ofc.”) Adam Williamson; and TDOC inmate Mack T. Transou, #132974.
I. The Complaint
Murrell alleges that on August 15, 2014, while he was housed in a segregation unit at the
HCCF, he was assaulted by Defendant Transou. (ECF No. 1 at 4.) At the time of the assault,
Defendants Parram, Thomas and Williamson, as well as three other officers who are not named

as defendants, were “down stairs” and across from Murrell’s cell getting clothes for another
inmate. Defendant Transou, whose job as “rock-man” apparently involves assisting at meal
times, was freely walking around the protective custody inmates. (Id. at 5.) Murrell alleges the
rock-man is supposed to be escorted by a supervision officer at all times while around protective
custody inmates. (Id.) During the feeding time, Defendant Transou “snapped” and began
running door-to-door hitting and kicking the doors. When he got to Murrell’s door, Defendant
Transou struck Murrell’s hand with a feeding tray then slammed his hand in the trap door. (Id.)
Murrell called for help but was not heard. He called for help again and was told by Defendant
Parram that they were trying to get clothes for an inmate and would get to him when they were
done. (Id.) Murrell told them, again, that he was being assaulted, and “they looked but kept
doing what they was doing” and did not help. (Id.) Defendant Thomas then told Defendant
Transou to leave. (Id.)
Murrell was seen by medical personnel roughly four hours after the assault and was told
that due to the swelling not much could be done at the time; however, someone in medical did
tell Murrell to put in an incident report. (Id.) However, charges were never filed against
Defendant Transou. (Id.) Murrell also filed a grievance. (Id.; see also ECF No. 1-1.)
Murrell asked officers to call medical three days in a row, but he was “denied medical”
on August 16, 17, and 18, 2014. (ECF No. 1 at 5.) Murrell began to throw up and also
repeatedly asked to see a mental health provider for stress and depression because of the lack of
help and his suffering, but received no response. (Id.; see also ECF No. 1-1 at 5.) The only
treatment Murrell received from medical was “IBP” (presumably Ibuprofen) and an ice pack
even though his right hand was “out of place.” (ECF No. 1 at 5.) After almost two weeks,
Murrell had an x-ray taken, but the swelling was still too big to determine if his hand was

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broken. (Id.) Murrell received an order from the doctor restricting him to light work on his
prison job, but he continued to ask to see medical because of the pain. However, he was denied
over ten times. (Id.; see also ECF No. 1-1 at 5.)
Murrell seeks money damages for his pain and suffering. (ECF No. 1 at 7.)
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
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

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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.
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

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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.”).
Murrell 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,
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).
Defendant Donahue cannot be sued as a supervisor. Under 42 U.S.C. § 1983,
“[g]overnment officials may not be held liable for the unconstitutional conduct of their
subordinates under a theory of respondeat superior.” Ashcroft v. Iqbal, 556 U.S. at 676; see also
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Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984). Thus, “a plaintiff must plead that each
Government-official defendant, through the official’s own official actions, violated the
Constitution.” Iqbal, 556 U.S. at 676.
There must be a showing that the supervisor encouraged the specific instance of
misconduct or in some other way directly participated in it. At a minimum, a
§ 1983 plaintiff must show that a supervisory official at least implicitly
authorized, approved or knowingly acquiesced in the unconstitutional conduct of
the offending subordinates.
Bellamy, 729 F.2d at 421 (citation omitted). A supervisory official, who is aware of the
unconstitutional conduct of his subordinates, but fails to act, generally cannot be held liable in
his individual capacity. Grinter v. Knight, 532 F.3d 567, 575-76 (6th Cir. 2008); Gregory v. City
of Louisville, 444 F.3d 725, 751 (6th Cir. 2006); Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir.
1999); Lillard v. Shelby Cnty. Bd. of Educ., 76 F.3d 716, 727-28 (6th Cir. 1996). A failure to
take corrective action in response to an inmate grievance or complaint does not supply the
necessary personal involvement for § 1983 liability. See George v. Smith, 507 F.3d 605, 609-10
(7th Cir. 2007) (“Ruling against a prisoner on an administrative complaint does not cause or
contribute to the [constitutional] violation. A guard who stands and watches while another
guard beats a prisoner violates the Constitution; a guard who rejects an administrative complaint
about a completed act of misconduct does not.”). Defendant Donahue cannot be sued merely
because he failed to take action in response to Murrell’s inmate grievance.
Murrell cannot sue Defendant Transou, an inmate, under 42 U.S.C. § 1983. “A § 1983
plaintiff may not sue purely private parties.” Brotherton v. Cleveland, 173 F.3d 552, 567 (6th
Cir. 1999). Thus, “[i]n order to be subject to suit under § 1983 claim, defendant's actions must
be fairly attributable to the state.” Collyer v. Darling, 98 F.3d 211, 231-32 (6th Cir. 1997). As a
fellow inmate, Defendant Transou is not a state actor under § 1983.

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To the extent that Murrell is alleging the HCCF Defendants failed to protect him from the
attack by Transou, the claim arises under the Eighth Amendment, which prohibits cruel and
unusual punishments.

See generally Wilson v. Seiter, 501 U.S. 294 (1991).

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, 501 U.S. at 298;
Williams v. Curtin, 633 F.3d at 383; Mingus v. Butler, 591 F.3d 474, 479-80 (6th Cir. 2010). 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 (quoting Rhodes v. Chapman, 452 U.S.
337, 347 (1981)); see also Hadix v. Johnson, 367 F.3d 513, 525 (6th Cir. 2004). “The Supreme
Court has held that ‘prison officials have a duty . . . to protect prisoners from violence at the
hands of other prisoners.’” Bishop v. Hackel, 636 F.3d 757, 766 (6th Cir. 2011) (quoting Farmer,
511 U.S. at 834).
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 v. McKinney, 509 U.S. at 32; Woods v. Lecureux, 110 F.3d 1215,1222
(6th Cir. 1997); Street, 102 F.3d at 814; Taylor v. Mich. Dep’t of Corr., 69 F.3d 76, 79 (6th Cir.

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1995). “[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
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 (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, 636 F.3d at 767; 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.”).
Murrell alleges that Transou “snapped” so that the attack was sudden and unexpected.
There are no allegations suggesting that the Defendants knew there was a substantial risk that
Transou might “snap” and attack other inmates yet deliberately disregarded that risk. The
allegation that Defendants failed to follow procedure and make sure Transou was escorted is
insufficient to establish such knowledge.
The Eighth Amendment also applies to Murrell’s claims of medical indifference. Under
Estelle v. Gamble, 429 U.S. 97, 104 (1976), “deliberate indifference to serious medical needs of

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prisoners constitutes the ‘unnecessary and wanton infliction of pain,’. . . proscribed by the Eighth
Amendment.” However, not “every claim by a prisoner that he has not received adequate
medical treatment states a violation of the Eighth Amendment.” Estelle, 429 U.S. at 105. “In
order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to
evidence deliberate indifference to serious medical needs. It is only such indifference that can
offend ‘evolving standards of decency’ in violation of the Eighth Amendment.” Id. at 106.
Within the context of Estelle claims, the objective component requires that the medical
need be sufficiently serious. Hunt v. Reynolds, 974 F.2d 734, 735 (6th Cir. 1992). “A medical
need is serious if it is one that has been diagnosed by a physician as mandating treatment or one
that is so obvious that even a lay person would easily recognize the necessity for a doctor’s
attention.” Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980) (quoting Laaman v. Helgemoe,
437 F. Supp. 269, 311 (D.N.H. 1977)).
To make out a claim of an Eighth Amendment Estelle violation, a prisoner must plead
facts showing that “prison authorities have denied reasonable requests for medical treatment in
the face of an obvious need for such attention where the inmate is thereby exposed to undue
suffering or the threat of tangible residual injury.” Westlake v. Lucas, 537 F.2d 857, 860 (6th
Cir. 1976). The Court clarified the meaning of deliberate indifference in Farmer v. Brennan, as
the reckless disregard of a substantial risk of serious harm; mere negligence will not suffice. Id.
511 U.S. at 835-36.
There are no allegations that any of the named Defendants was aware of the severity of
Murrell’s injury yet disregarded that serious medical need. In fact, Murrell alleges that it was
Sgt. Frye, who is not a named party, who finally checked on him, saw his injury and told him she
would make sure he was seen by medical. (ECF No. 1 at 5.) After being seen by medical

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around 11:40 p.m. that night, Murrell complains that he was given no further medical care until
almost two weeks later, when his hand was x-rayed. (Id.) However, Murrell does not allege that
any of the named Defendants had anything to do with the lack of medical care in the days
following the attack, and he has sued none of the medical personnel. Thus, Murrell has not
sufficiently stated a claim that the Defendants were deliberately indifferent to his serious medical
needs.
For all of the foregoing reasons, Murrell’s complaint is subject to dismissal in its entirety
for failure to state a claim on which relief can be granted.
III. 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
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

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amendment comports with due process and does not infringe the right of access to the courts.”).
In this case, with the exception of Murrell’s claims against Defendants Donahue and Transou,
the Court cannot conclude that any amendment to Murrell’s claims would be futile as a matter of
law.
IV. Conclusion
The Court DISMISSES Murrell’s 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). However, leave to
amend is GRANTED with respect to Murrell’s claims against Defendants Parram, Thomas and
Williamson. Any amended complaint must be filed within thirty (30) days after the date of this
order. Murrell is advised that an amended complaint will supersede the original pleadings and
and must be complete in itself without reference to those 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. Each claim for relief must be stated in a separate
count and must identify each defendant sued in that count. If Murrell 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.
Murrell is reminded that he must 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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