Moore v. Perry et al
Filing
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ORDER GRANTING 7 MOTION TO AMEND, DIRECTING THE CLERK TO MODIFY THE DOCKET, DISMISSING CLAIMS AND GRANTING LEAVE TO AMEND. Signed by Judge James D. Todd on 8/3/16. (Todd, James)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
RONNIE G. MOORE,
Plaintiff,
VS.
GORDON PERRY, ET AL.,
Defendants.
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No. 15-1213-JDT-egb
ORDER GRANTING MOTION TO AMEND,
DIRECTING THE CLERK TO MODIFY THE DOCKET,
DISMISSING CLAIMS AND GRANTING LEAVE TO AMEND
On August 24, 2015, Plaintiff Ronnie G. Moore (“Moore”), who is currently an inmate at
the Hardeman County Correctional Facility (“HCCF”) in Whiteville, Tennessee, filed a pro se
complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1.) In compliance with an order of the Court,
Moore filed a motion to proceed in forma pauperis on September 2, 2015. (ECF Nos. 3 & 4). In
an order issued September 3, 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. 5) On October 26, 2015, Moore filed a Motion to Amend his
complaint to substitute defendants. (ECF No. 7.) Because the case has not yet been screened,
Moore is entitled to amend his complaint without leave of the Court. The Motion is GRANTED.
The Clerk shall record the Defendants as Warden Gordon Perry and Corrections Corporation of
America (“CCA”).1
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Pursuant to Moore’s Motion to Amend, the CLERK is DIRECTED to remove Alisha
I. The Complaint
Moore alleges that beginning on July 19, 2015, he signed up for sick call several days in
a row to renew his medical prescriptions; however, he received no response. (Compl. at 4, ECF
No. 1.) Moore contends that he needs this medication because, without it, the symptoms have
caused him “great pain” and have made him “want to end his life.” (Id.) Moore contends that
“It” has caused him to go the hospital by sending mixed signals through the EKG. (Id.)
Moore contends that other inmates have claim issues, but they chose to let CCA get away
with it because CCA is known to retaliate against the inmates. (Id.) Moore further alleges that
all the CCA employees are retaliating against him by not provided needed legal forms, thereby
“slowing down [his] progress.” (Id.)
Moore seeks to have CCA pay him for his suffering in the amount of $2 million dollars.
(Id. at 5.)
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
Cox as a Defendant and add Corrections Corporation of America.
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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
Moore 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.
Claims against Defendant Perry
The complaint contains no factual allegations against Defendant Perry. 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.
Further, Defendant Perry cannot be held responsible as a supervisor. It is clear that
Moore sues Defendant Perry merely because of his position as HCCF Warden. 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
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.
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Bellamy, 729 F.2d at 421 (citation omitted).
A supervisory official who is aware of the
unconstitutional conduct of his or her subordinates, but fails to act, generally cannot be held
liable in his or her 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). The complaint does not allege that Defendant Perry, through his own actions, violated
Moore’s rights.
2.
Claims against CCA
Moore’s complaint does not assert a valid claim against CCA, a private corporation
which operates HCCF. “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 Moore suffered any
injury because of an unconstitutional policy or custom of CCA.
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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.”).
IV.
CONCLUSION
The Court DISMISSES the 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, the court cannot
conclude that any amendment to Moore’s claims would be futile as a matter of law. Therefore,
Moore is GRANTED leave to amend. Any amendment must be filed within thirty (30) days of
the date of entry of this order. Moore is advised that an amended complaint supersedes the
original complaint and must be complete in itself without reference to the prior pleadings. The
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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 the first amended complaint.
Crowder may add additional defendants provided that the claims against the new parties arise
from the acts and omissions set forth 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 Moore 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.
Moore shall promptly notify the Clerk, in writing, 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.
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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