Guess v. Stray et al

Filing 9

ORDER PARTIALLY DISMISSING COMPLAINT AND DIRECTING THAT PROCESS BE ISSUED AND SERVED ON DEFENDANT STRAY. Signed by Judge James D. Todd on 8/16/18. (mbm)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
JUSTIN ADAM GUESS,
Plaintiff,
VS.
RUSSELL STRAY, ET AL.,
Defendants.

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No. 16-1128-JDT-cgc

ORDER PARTIALLY DISMISSING COMPLAINT AND
DIRECTING THAT PROCESS BE ISSUED AND SERVED ON DEFENDANT STRAY
On May 31, 2016, Plaintiff Justin Adam Guess, who is currently incarcerated at the
Hardeman County Correctional Facility in Whiteville, Tennessee, filed a pro se complaint
pursuant to 42 U.S.C. § 1983 and a motion for leave to proceed in forma pauperis. (ECF Nos. 1
& 2.) The complaint concerns Guess’s previous incarceration at the Northwest Correctional
Complex (NWCX) in Tiptonville, Tennessee. On June 3, 2016, the Court granted leave to proceed
in forma pauperis and assessed the civil filing fee pursuant to the Prison Litigation Reform Act,
28 U.S.C. §§ 1915(a)-(b). (ECF No. 4.) The Clerk shall record the Defendants as Counselor
Russell Stray, Assistant Warden Melvin Tirey, and the NWCX.
Guess alleges in his complaint that on or about December 9, 2015,1 he was being extorted
by other inmates at NWCX who were gang members, which caused him to fear for his life. (ECF
No. 1 at 2.) He alleges his family also was being threatened, so his mother called the NWCX and

1

The complaint lists the date as December 9, 2016. That would have been over six
months after the complaint was filed; therefore, the Court presumes the 2016 date is an error and
the correct date is December 9, 2015.

spoke with Corporal Ward, after which Guess went to “pending protective custody.” (Id.) Guess
further alleges that he told Defendant Stray specifically that he was being extorted and also had
been hit by “Crips” gang members and that he afraid for his life. (Id.) Defendant Stray allegedly
laughed at Guess and denied him placement in protective custody. (Id.) However, Guess alleges
that, when he returned to the compound after being denied protective custody, he was severely
beaten by inmate gang members. (Id.) Guess’s injuries allegedly were so severe that he had to
have “surgeries” and was in an intensive care unit for some period of time. (Id. at 2-3.) The
injuries required six screws and pins to be put in Guess’s face, and he also lost some teeth. (Id. at
3.) At the time the complaint was filed, he stated he still had “[one] surgery to go.” (Id.) Guess
alleges that if he had been given protective custody the attack would not have happened. (Id.)
Guess further alleges that Defendant Tirey spoke “off the wall” to him, saying that Tirey
was retiring, did not care what happened to Guess, and that if Guess was not a man and could not
fight, then he should just go back out on the compound and “bend over [and] be gay.” (Id. at 2-3.)
It is unclear from the complaint whether Tirey made these statements before or after the attack on
Guess.
Guess seeks compensatory damages and injunctive relief, including transfer to protective
custody or another prison. (Id. at 4.)
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).

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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 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.”).
Guess 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,

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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).
Claims against the NWCX, a state prison, are construed as claims against the State of
Tennessee. However, Plaintiff cannot sue the State of Tennessee under 42 U.S.C. § 1983. The
Eleventh Amendment to the United States Constitution provides that “[t]he Judicial power of the
United States shall not be construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects
of any Foreign State.” U.S. Const. amend. XI. The Eleventh Amendment has been construed to
prohibit citizens from suing their own states in federal court. Welch v. Tex. Dep’t of Highways &
Pub. Transp., 483 U.S. 468, 472 (1987); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.
89, 100 (1984); Employees of Dep’t of Pub. Health & Welfare v. Mo. Dep’t of Pub. Health &
Welfare, 411 U.S. 279, 280 (1973); see also Va. Office for Protection & Advocacy v. Stewart, 131
S. Ct. 1632, 1638 (2011) (“A State may waive its sovereign immunity at its pleasure, and in some
circumstances Congress may abrogate it by appropriate legislation. But absent waiver or valid
abrogation, federal courts may not entertain a private person’s suit against a State.” (citations
omitted)). By its terms, the Eleventh Amendment bars all suits, regardless of the relief sought.
Pennhurst, 465 U.S. at 100-01. Tennessee has not waived its sovereign immunity. Tenn. Code
Ann. § 20-13-102(a). Moreover, a state is not a person within the meaning of 42 U.S.C. § 1983.
Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 613, 617 (2002); Will v. Mich. Dep’t
of State Police, 491 U.S. 58, 71 (1989).

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Guess’s claim that Defendant Stray failed to protect him from the attack by other inmates
arises under the Eighth Amendment, which prohibits cruel and unusual punishments.

See

generally Wilson v. Seiter, 501 U.S. 294 (1991). “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 v. Brennan, 511 U.S. 825, 834
(1994)); see also Clark v. Corr. Corp. of Am., 98 F. App’x 413, 415 (6th Cir. 2004) (“In the prison
context, the Eighth Amendment imposes a duty on prison officials to take reasonable measures to
guarantee the safety of the inmates.”).
An Eighth Amendment claim consists of both objective and subjective components.
Farmer, 511 U.S. at 834; Hudson v. McMillian, 503 U.S. 1, 8 (1992); Wilson, 501 U.S. at 298;
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 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; Woods v. Lecureux, 110 F.3d 1215,1222 (6th Cir. 1997). “[D]eliberate indifference describes
a state of mind more blameworthy than negligence.” Farmer, 511 U.S. at 835. A prison official
cannot be found liable under the Eighth Amendment unless he subjectively knows of an excessive
risk of harm to an inmate’s health or safety and also disregards that risk. Id. at 837. “[A]n official’s
failure to alleviate a significant risk that he should have perceived but did not” does not amount to

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cruel and unusual punishment. Id. at 838; 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.”).
Guess alleges in this case that he specifically told Defendant Stray that he was in danger
from inmate gang members and requested protective custody but that Stray merely laughed at him.
Guess was then beaten so severely by gang members that he required hospitalization and surgery.
These allegations state a plausible Eighth Amendment claim against Stray for failure to protect
Guess from harm.
As stated, with regard to Defendant Tirey, the complaint is unclear as to whether the
comments Guess describes occurred before or after the attack on Guess. If the comments occurred
after the attack, Guess has no § 1983 claim against Tirey. Verbal slurs or derogatory comments
generally do not satisfy the objective component of an Eighth Amendment claim. See, e.g., Pasley
v. Conerly, 345 F. App’x 981, 984 (6th Cir. 2009); Jones Bey v. Johnson, 248 F. App’x 675, 67778 (6th Cir. 2007) (no Eighth Amendment claim for prison guard’s “use of racial slurs and other
derogatory language”); Johnson v. Unknown Dellatifa, 357 F.3d 539, 546 (6th Cir. 2004)
(“harassment and verbal abuse . . . do not constitute the type of infliction of pain that the Eighth
Amendment prohibits”); Johnson v. Moore, 7 F. App’x 382, 384 (6th Cir. 2001) (“Allegations of
verbal harassment and verbal abuse by prison officials toward an inmate do not constitute
punishment within the meaning of the Eighth Amendment.

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Nor do allegations of verbal

harassment rise to the level of unnecessary and wanton infliction of pain proscribed by the Eighth
Amendment.” (citation omitted)).
Even if the Court assumes Tirey’s comments were made prior to the attack on Guess, the
complaint does not state an Eighth Amendment claim against him because Guess does not provide
sufficient details about the conversation. The Court cannot determine whether Tirey’s statements
are alleged to have been made in response to a request for protective custody and if so, what Guess
actually told Tirey, or whether the comments were made in some other context. Although pro se
complaints are to be construed liberally, the Court cannot speculate as to a plaintiff’s claims.
Therefore, the present allegations against Defendant Tirey are subject to dismissal for failure to
state a claim. However, pursuant to Federal Rule of Civil Procedure 15(a)(1), Guess may amend
his complaint once as of right, without leave of Court, if he chooses to do so.2
In conclusion, the Court DISMISSES the claims against Defendants NWCX and Tirey 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). Process will be issued for Defendant Stray on the Eighth Amendment claim for
failure to protect.
It is ORDERED that the Clerk shall issue process for Defendant Stray and deliver that
process to the U.S. Marshal for service. Service shall be made on Defendant Stray pursuant to
Federal Rule of Civil Procedure 4(e) and Tennessee Rules of Civil Procedure 4.04(1) and (10),
either by mail or personally if mail service is not effective. All costs of service shall by advanced
by the United States.

2

All other amendments beyond the first require either leave of Court or written consent
of the opposing parties. Fed. R. Civ. P. 15(a)(2).

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It is further ORDERED that Guess shall serve a copy of every subsequent document he
files in this cause on the attorneys for Defendant Stray or on Defendant Stray if he is unrepresented.
Guess shall make a certificate of service on every document filed. Guess also shall familiarize
himself with Federal Rules of Civil Procedure and this Court’s Local Rules.3
Guess is reminded that he must promptly notify the Clerk, in writing, of any change of
address or extended absence. Failure to comply with this requirement 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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A copy of the Local Rules may be obtained from the Clerk. The Local Rules are also
available on the Court’s website at www.tnwd.courts.gov/pdf/content/LocalRules.pdf.

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