Clark v. Whiteville Correctional Facility et al

Filing 9

ORDER DENYING MOTION TO APPOINT COUNSEL 7 ,DISMISSING COMPLAINT AND GRANTING LEAVE TO AMEND. Signed by Judge James D. Todd on 4/19/16. (Todd, James)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
VICTOR CLARK,
Plaintiff,
VS.
WHITEVILLE CORRECTIONAL
FACILITY, ET AL.,
Defendants.

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No. 15-1072-JDT-egb

ORDER DENYING MOTION TO APPOINT COUNSEL,
DISMISSING COMPLAINT AND GRANTING LEAVE TO AMEND

On April 2, 2015, Plaintiff Victor Clark (“Clark”), who is presently incarcerated at the
Morgan County Correctional Complex in Wartburg, 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.)
The complaint addresses Clark’s previous incarceration at the Whiteville Correctional Facility
(“WCF”) in Whiteville, Tennessee. The Court subsequently 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. 4.) The Clerk shall record the
Defendants as the WCF and Unit Manager Shantel White.
I. The Complaint
Clark alleges that Defendant White violated his civil rights in January 2015 by holding
him in segregation for ten additional days even though he had not been charged with any further
disciplinary violation or given any “hole” time. (ECF No. 1 at 5.) Clark contends he was held in

segregation for that additional period of time because Defendant White had started a rumor that
another WCF inmate, Joshua Moody, had put an incompatible status on Clark. Clark contends
that was not true, as Moody denied saying any such thing. (Id.) Clark was released from
segregation on January 30, 2015, after his family called to complain. (Id.)
In a somewhat confusing allegation, which is made only marginally clearer by a
grievance that he filed at the time and the response thereto, Clark also alleges that his civil rights
were violated when he was put back into the inmate population in the same pod with Moody.
(Id.; Grievance, ECF No. 1-1 at 4-6.)

The response to Clark’s grievance indicates the

incompatible was issued because Clark previously had been charged with assaulting Moody.
(ECF No. 1-1 at 4.) Clark alleges that Defendant White’s “forcing” an incompatible on Clark
put him in danger of having Moody retaliate. (ECF No. 1 at 5.)1
Clark seeks compensatory damages and the appointment of counsel. (Id. at 6)
On October 14, 2015, Clark filed a motion for appointment of counsel. (ECF No. 7.)
Pursuant to 28 U.S.C. § 1915(e)(1), “[t]he court may request an attorney to represent any person
unable to afford counsel.” However, “[t]he appointment of counsel in a civil proceeding is not a
constitutional right.” Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir. 2003); see also Shepherd v.
Wellman, 313 F.3d 963, 970 (6th Cir. 2002) (“[T]he plaintiffs were not entitled to have counsel
appointed because this is a civil lawsuit.”); Lavado v. Keohane, 992 F.2d 601, 605-06 (6th Cir.
1993) (no constitutional right to counsel in a civil case); Farmer v. Haas, 990 F.2d 319, 323 (7th
Cir. 1993) (“There is no constitutional or . . . statutory right to counsel in federal civil cases . . .
.”). Appointment of counsel is “a privilege that is justified only by exceptional circumstances.”

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In an assertion that seems to contradict his allegation that he feared retaliation from
Moody, Clark stated in his grievance that he and Moody would testify on each other’s behalf in
an attempt to get the incompatible removed. (ECF No. 1-1 at 6.)
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Lavado, 992 F.2d at 606 (internal quotation marks and citation omitted). “In determining
whether ‘exceptional circumstances’ exist, courts have examined the type of case and the
abilities of the plaintiff to represent himself. This generally involves a determination of the
complexity of the factual and legal issues involved.” Id. at 606 (internal quotation marks and
citations omitted). Appointment of counsel is not appropriate when a pro se litigant’s claims are
frivolous or when his chances of success are extremely slim. Id. (citing Mars v. Hanberry, 752
F.2d 254, 256 (6th Cir. 1985)); see also Cleary v. Mukasey, 307 F. App’x 963, 965 (6th Cir.
2009) (same).
Clark has not satisfied his burden of demonstrating that the Court should exercise its
discretion to appoint counsel in this case. The motion to appoint counsel is DENIED.
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.

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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.
“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

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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.”).
Clark 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.

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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).
The Court construes Clark’s claims against the WCF as an attempt to assert claims
against CCA, a private corporation which operates this facility. However, the 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 complaint does not allege
that Clark suffered any injury because of an unconstitutional policy or custom of CCA.
Clark has no valid claim against Defendant White for causing him to be held in
segregation for an additional ten days, allegedly without a legitimate reason. In general, an
inmate does not have a liberty interest in a particular prison, housing assignment, or security
classification or in freedom from segregation. Olim v. Wakinekona, 461 U.S. 238, 245 (1983);

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Meachum v. Fano, 427 U.S. 215, 224-25 (1976); Montanye v. Haymes, 427 U.S. 236, 243
(1976); Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976); Newell v. Brown, 981 F.2d 880, 883 (6th
Cir. 1992); Beard v. Livesay, 798 F.2d 874, 876 (6th Cir. 1986). See also Sandin v. Conner, 515
U.S. 472, 484-87 (1995) (confinement in particular part of prison or jail does not implicate due
process absent “atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life”); Guile v. Ball, 521 F. App’x 542, 544 (6th Cir. 2013); McMillan v.
Fielding, 136 F. App’x 818, 820 (6th Cir. 2005) (“Ten days in lock up, the loss of package
privileges, and a $4.00 fine do not constitute an atypical and significant hardship in the context
of prison life.” (quoting Sandin, 515 U.S. at 484)).
To the extent that Clark is alleging the Defendants failed to protect him from inmate
Moody, he has no claim. “[P]rison officials have a duty . . . to protect prisoners from violence at
the hands of other prisoners.” Leary v. Livingston Cnty., 528 F.3d 438, 442 (6th Cir. 2008)
(quoting Farmer v. Brennan, 511 U.S. 825, 833 (1994)); see also Dellis v. Corr. Corp. of Am.,
257 F.3d 508, 512 (6th Cir. 2001). To establish liability under the Eighth Amendment for a claim
based on failure to prevent harm to a prisoner, a 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; Helling v. McKinney, 509 U.S. 25, 32 (1993); 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. 1995). While Clark alleges that he was placed in probable
jeopardy because of the possibility Moody would retaliate, there is no allegation that Moody
actually harmed Clark, even after Clark was returned to the same pod in which Moody was
housed.

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For all of the foregoing reasons, Clark’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
amendment comports with due process and does not infringe the right of access to the courts.”).
In this case, the Court cannot conclude that any amendment to Clark’s claims against Defendant
White would be futile as a matter of law.
IV. Conclusion
The Court DISMISSES Clark’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

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amend is GRANTED. Any amended complaint must be filed within thirty (30) days after the
date of this order. Clark 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 Clark 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.
Clark 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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