Van-Aken v. Obion County Jail et al

Filing 5

ORDER DISMISSING COMPLAINT AND GRANTING LEAVE TO AMEND. Signed by Judge James D. Todd on 2/13/18. (mbm)

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TENNESSEE EASTERN DIVISION PATRICK JON VANAKEN Plaintiff, VS. OBION COUNTY, et.al., Defendants. ) ) ) ) ) ) ) ) ) ) No. 16-1013-JDT-cgc ORDER DISMISSING COMPLAINT AND GRANTING LEAVE TO AMEND On January 19, 2016, Plaintiff Patrick Jon VanAken (“VanAken”), U.S. Bureau of Prisons register number 27301-076, who at the time of filing was incarcerated at the Obion County Jail (“Jail”), in Union City, Tennessee, filed a pro se complaint pursuant to 42 U.S.C. § 1983 accompanied by a motion for leave to proceed in forma pauperis. (ECF Nos. 1 & 2). In an order issued January 21, 2016, 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 Obion County1 and Captain Wayne Davis. I. THE COMPLAINT VanAken alleges that on December 10, 2015, he was assaulted by an unidentified guard in a cell in the holding area of the Jail; the assault allegedly was caught on camera. (Compl. at 2,                                                              1 The Court construes the allegations against the Obion County Jail as allegations against Obion County. ECF No. 1.) VanAken contends that he wanted to press charges but that “he”2 failed to protect VanAken or file any charges against the guard. VanAken alleges that Defendant Davis did nothing to help him and instead told him that officers assaulting inmates is okay. (Id.) VanAken alleges he was assaulted by other inmates on two occasions prior to the assault by the guard and that Davis also did nothing to help after those incidents. (Id.) One of the inmates who assaulted VanAken was a state inmate, who should not have been placed with a federal inmate like himself. (Id.) Davis allegedly stated that he was far too busy to be concerned with VanAken’s safety. (Id.) VanAken alleges there are no cameras or emergency reponse buttons in any of the cells, which resulted in VanAken having to wait over three hours for a guard after he had an accident. (Id. at 3.) VanAken allegedly has been forced to sleep on the floor, spent four days in a cell with no toilet paper and no shower, and was denied all outside recreation. (Id.) VanAken also alleges that ‘they” violated his rights to his spouse and his counsel, would not let him call his counsel after many requests, and refused him access to the law library. (Id.) VanAken contends that he only received two warm meals a day during his stay at the Jail, which were improperly handled, causing him to become ill. (Id.) VanAken allegedly was refused medical attention for that illness. (Id.) VanAken alleges numerous issues regarding his medical care. He alleges that medication is improperly dispensed by guards who are not qualified or certified to handle medication, causing him to receive the wrong medication. (Id.) Due to his medical history being taken by an unqualified guard at booking, mistakes have been made in diagnosing VanAken’s medical                                                              2 VanAken does not specifically identify who “he” is. However, the Court presumes the allegations against “he” refer to Defendant Davis as he is the only individual Defendant named by VanAken. 2   problems. (Id.) They have refused to acquire his actual medical records, and VanAken was told by Barbara Crowell, who is not a party to this complaint, that she had shared his medical tests with people outside the facility without his consent. (Id.) On October 10, 2015, VanAken contends that he was wakened in his cell by guard Corey Pinion, who is not a party to this complaint, who had his hand over VanAken’s mouth while simultaneously administering smelling salts, causing VanAken to have trouble breathing and become traumatized. (Id.) The guard told VanAken that Barbara Cromwell said this was the way to administer smelling salts, which VanAken contends is not safe and would not be recommended by a health professional. (Id.) VanAken alleges that the Jail has misplaced his personal property, including his wedding ring and wallet. (Id,) On January 13, 2016, VanAken alleges that inmate Michael Simpson was placed in his cell even though VanAken told them that Simpson was incompatible and suffered from paranoid schizophrenia and bipolar disorder. (Id.) On January 14, 2016, inmate Simpson flushed milk cartons in the toilet causing it to overflow with human waste. (Id.) VanAken alleges that a guard threw VanAken’s property into the waste and told him that he would have to sleep in the waste. (Id.) However, a couple of hours later, VanAken was forced by the Captain (presumably Defendant Davis) to clean up the mess. (Id.) VanAken claims that he has been refused access to religious services, that the Jail has been holding his non-legal incoming and outgoing, that he was being punished in solitary confinement even though he had not done anything wrong, and that he is experiencing prejudice because he is from another state. (Id. at 4.) These issues allegedly have caused VanAken to be diagnosed with social anxiety disorder and emotional distress. (Id.) 3   VanAken further alleges that when he was assaulted in cell #15, he was punished by “medical” and forced to sleep naked for seven days because they said he wanted to kill himself; however, VanAken contends he would never try to kill himself. (Id.) VanAken seeks to drug test all Jail employees and to receive damages for pain and suffering. (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 standards under Fed. R. Civ. P. 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), are applied. 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 4   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. As the Sixth Circuit has explained: Before the recent onslaught of pro se prisoner suits, the Supreme Court suggested that pro se complaints are to be held to a less stringent standard than formal pleadings drafted by lawyers. See Haines v. Kerner, 404 U.S. 519 (1972) (per curiam). Neither that Court nor other courts, however, have been willing to abrogate basic pleading essentials in pro se suits. See, e.g., id. at 521 (holding petitioner to standards of Conley v. Gibson); Merritt v. Faulkner, 697 F.2d 761 (7th Cir.) (duty to be less stringent with pro se complaint does not require court to conjure up unplead allegations), cert. denied, 464 U.S. 986 (1983); McDonald v. Hall, 610 F.2d 16 (1st Cir.1979) (same); Jarrell v. Tisch, 656 F. Supp. 237 (D.D.C. 1987) (pro se plaintiffs should plead with requisite specificity so as to give defendants notice); Holsey v. Collins, 90 F.R.D. 122 (D. Md. 1981) (even pro se litigants must meet some minimum standards). 5   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 VanAken 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 6   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). Plaintiff has sued Obion County. When a § 1983 claim is made against a municipality, the court must analyze two distinct issues: (1) whether plaintiff’s harm was caused by a constitutional violation; and (2) if so, whether the municipality is responsible for that violation. Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120 (1992). The second issue is dispositive of plaintiff’s claim against Obion County. A local government “cannot be held liable solely because it employs a tortfeasor—or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.” Monell v. Dep’t. of Soc. Serv., 436 U.S. 658, 691 (1978) (emphasis in original); see also Searcy v. City of Dayton, 38 F.3d 282, 286 (6th Cir. 1994); Berry v. City of Detroit, 25 F.3d 1342, 1345 (6th Cir. 1994). A municipality cannot be held responsible for a constitutional deprivation unless there is a direct causal link between a municipal policy or custom and the alleged constitutional deprivation. Monell, 436 U.S. at 691-92; Deaton v. Montgomery Co., Ohio, 989 F.2d 885, 889 (6th Cir. 1993). To demonstrate municipal liability, a plaintiff “must (1) identify the municipal policy or custom, (2) connect the policy to the municipality, and (3) show that his particular injury was incurred due to execution of that policy.” Alkire v. Irving, 330 F.3d 802, 815 (6th Cir. 2003) (citing Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir. 1993)). “Where a government ‘custom has not received formal approval through the body’s official decisionmaking channels,’ such a custom may still be the subject of a § 1983 suit.” Alkire, 330 7   F.3d at 815 (quoting Monell, 436 U.S. at 690-91). The policy or custom “must be ‘the moving force of the constitutional violation’ in order to establish the liability of a government body under § 1983.” Searcy, 38 F.3d at 286 (quoting Polk Co. v. Dodson, 454 U.S. at 326 (citation omitted)). “[T]he touchstone of ‘official policy’ is designed ‘to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible.’” City of St. Louis v. Praprotnik, 485 U.S. 112, 138 (1988) (quoting Pembaur v. Cincinnati, 475 U.S. 469, 479-80 (1986)) (emphasis in original). Although civil rights plaintiffs are not required to plead the facts demonstrating municipal liability with particularity, Leatherman v. Tarrant Cnty Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168-69 (1993), the complaint must be sufficient to put the municipality on notice of the plaintiff’s theory of liability, see, e.g., Fowler v. Campbell, No. 3:06CV-P610-H, 2007 WL 1035007, at *2 (W.D. Ky. Mar. 30, 2007); Yeackering v. Ankrom, No. 4:05-CV-00018-M, 2005 WL 1877964, at *2 (W.D. Ky. Aug. 5, 2005); Oliver v. City of Memphis, No. 04-2074-B, 2004 WL 3316242, at *4 (W.D. Tenn. Dec. 2, 2004); cf. Raub v. Correctional Med. Servs., Inc., No. 06-13942, 2008 WL 160611, at *2 (E.D. Mich. Jan. 15, 2008) (denying motion to dismiss where complaint contained conclusory allegations of a custom or practice); Cleary v. Cnty of Macomb, No. 06-15505, 2007 WL 2669102, at *20 (E.D. Mich. Sept. 6, 2007) (same); Morningstar v. City of Detroit, No. 06-11073, 2007 WL 2669156, at *8 (E.D. Mich. Sept. 6, 2007) (same); Chidester v. City of Memphis, No. 02-2556 MA/A, 2006 WL 1421099, at *3 (W.D. Tenn. June 15, 2005). The allegations of the complaint fail to identify an official policy or custom which caused injury to Plaintiff. Instead, it appears that Plaintiff is 8   suing Obion County because he was confined in a county institution and the County employed persons who allegedly violated his rights. VanAken claims that Defendant Davis failed to protect him against multiple assaults from other inmates. For a convicted prisoner, such a claim arises under the Eighth Amendment, which prohibits cruel and unusual punishments. See generally Wilson v. Seiter, 501 U.S. 294 (1991). For pre-trial detainees such as VanAken, “the ‘cruel and unusual punishment’ proscription of the Eighth Amendment to the Constitution does not apply,” because “as a pretrial detainee [the plaintiff is] not being ‘punished,’” Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000). Instead, a person detained prior to conviction receives protection against mistreatment at the hands of prison officials under the Due Process Clause of the Fourteenth Amendment if held in state custody. Caiozzo v. Koreman, 581 F.3d 63, 69 (2d Cir. 2009); Liscio v. Warren, 901 F.2d 274, 275–76 (2d Cir.1990). However, even though VanAken appears to have been a pre-trial detainee during the events at issue, the court will analyze the claims regarding jail conditions under Eighth Amendment principles because the rights of pre-trial detainees are equivalent to those of convicted prisoners. Thompson v. Cnty. of Medina, 29 F.3d 238, 242 (6th Cir. 1994) (citing Roberts v. City of Troy, 773 F.2d 720, 723 (6th Cir. 1985).3The                                                              3 On June 22, 2015, the Supreme Court held, in Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), that excessive force claims brought by pre-trial detainees must be analyzed under a Fourteenth Amendment 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 may affect the deliberate indifference standard for claims concerning an inmate’s health or safety, which the Sixth Circuit applies to both pre-trial detainees and convicted prisoners. See Morabito v. Holmes, 628 F. App’x 353, 356-58 (6th Cir. 2015) (applying, even after the decision in Kingsley, the objective reasonableness standard to pre-trial detainee’s excessive force claims and the Eighth Amendment’s deliberate indifference standard to denial of medical care claim). Absent further guidance, the Court will continue to apply the deliberate indifference analysis to claims concerning a pre-trial detainee’s health and safety. 9   Eighth Amendment to the United States Constitution prohibits cruel and unusual punishment. 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. 10   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.”). VanAken alleges that two inmates assaulted him and that he was also assaulted by a guard. However, he does not allege that Defendant Davis knew there was a substantial risk that the other inmates or a guard would attack VanAken, yet deliberately disregarded that risk. The allegation that Defendant Davis stated, after the fact, that he was too busy to be concerned with VanAken’s safety are insufficient to establish such knowledge. Additionally, VanAken cannot compel a criminal prosecution of any person. As a private citizen, VanAken has no authority to initiate a federal criminal prosecution of any defendant for 11   alleged unlawful acts. Kafele v. Frank & Wooldridge Co., 108 Fed. App’x 307, 308-09 (6th Cir. 2004) (citing Diamond v. Charles, 476 U.S. 54, 64-65 (1986); Lopez v. Robinson, 914 F.2d 486, 494 (4th Cir. 1990); Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir. 1989); Hamilton v. Reed, 29 Fed. App’x 202, 204 (6th Cir. 2002) (same). The decision of whether to institute state or federal criminal proceedings is a decision committed wholly to the discretion of the State District Attorney or the United States Attorney. This Court cannot order that Defendant Davis file charges against an inmate or guard or that an inmate or guard be charged with a crime. The Eighth Amendment also applies to VanAken’s various claims regarding living conditions. However, VanAken does not allege that any named Defendant was responsible for the various conditions or deliberately disregarded a serious risk to his health or safety arising from those conditions. Additionally, the Eighth Amendment also applies to VanAken’s claims regarding his medical care. Under Estelle v. Gamble, 429 U.S. 97, 104 (1976), “deliberate indifference to serious medical needs of 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 12   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. VanAken’s claims about a lack of medical care also are not asserted against any named Defendant. He does not allege that Defendant Davis had anything to do with his medical care, and he has sued no medical personnel. Thus, VanAken has not sufficiently stated a claim that the Defendants were deliberately indifferent to his serious medical needs. VanAken alleges that the Jail has misplaced some of his personal property. Claims for deprivation of property are not actionable under § 1983 if adequate state remedies are available to redress the deprivation. See, e.g., Parratt v. Taylor, 451 U.S. 527 (1981), partially overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 330-31 (1986); Hudson v. Palmer, 468 U.S. 517 (1984); Smith v. Rose, 760 F.2d 102, 106 (6th Cir. 1985); Brooks v. Dutton, 751 F.2d 197 (6th Cir. 1985). Plaintiff is entitled to sue the Defendants, or any other responsible person, in state court. The complaint does not adequately allege a First Amendment claim arising from the alleged denial of Plaintiff’s right to practice his religion. While VanAken states that he has been 13   refused access to his religion or any religious services, he fails to provide any details or to allege that any named Defendant was responsible for that denial. VanAken also claims that he has been refused access to his lawyer and to the law library. However, the complaint does not assert a valid claim for denial of VanAken’s First Amendment right of access to the courts. See Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996); see also Bounds v. Smith, 430 U.S. 817, 821 (1977) (“It is now established beyond doubt that prisoners have a constitutional right of access to the courts.”). The Supreme Court has held that “[t]he fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.” Bounds, 430 U.S. at 828. However, 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); see also Thaddeus-X v. Blatter, 175 F.3d 378, 391 (6th Cir. 1999) (en banc) (inmates’ First Amendment right of access to the courts “extends to direct appeal, habeas corpus applications, and civil rights claims only”). To have standing to pursue a First Amendment claim that he was denied access to the courts, “a prisoner must show prison officials’ conduct inflicted an ‘actual injury,’ i.e., that the conduct hindered his efforts to pursue a nonfrivolous legal claim.” Rodgers v. Hawley, 14 F. App’x 403, 409 (6th Cir. 2001) (citation omitted); see also Hadix v. Johnson, 182 F.3d 400, 405-06 (6th Cir. 1999) (explaining how Lewis altered the “actual injury” requirement previously articulated by the Sixth Circuit). “Actual injury” can be demonstrated by “the late filing of a 14   court document or the dismissal of an otherwise meritorious claim.” Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996). VanAken does not allege that he suffered any such actual injury. For all of the foregoing reasons, the complaint is subject to dismissal in its entirety for failure to state a claim on which relief may 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 VanAken’s claims would be futile as a matter of law. 15   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, VanAken is GRANTED leave to amend his complaint. Any amendment must be filed within thirty (30) days after the date of this order. VanAken 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 the first amended complaint. Each claim for relief must be stated in a separate count and must identify each defendant sued in that count. If VanAken 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. IT IS SO ORDERED. s/ James D. Todd JAMES D. TODD UNITED STATES DISTRICT JUDGE 16  

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