Shipp et al v. Corrections Corporation of America et al

Filing 20

ORDER DISMISSING COMPLAINT AND GRANTING LEAVE TO AMEND. Signed by Judge James D. Todd on 9/6/18. (mbm)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
TADARYL SHIPP,
Plaintiff,
VS.
CORECIVIC, ET AL.,
Defendants.

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No. 16-2891-JDT-cgc

ORDER DISMISSING COMPLAINT AND GRANTING LEAVE TO AMEND
Plaintiff Tadaryl Shipp, who is incarcerated at the Hardeman County Correctional Facility
(HCCF) in Whiteville, Tennessee, filed a pro se civil complaint and a motion to proceed in forma
pauperis. (ECF Nos. 1 & 2.) Shipp purported to file the complaint also on behalf of ten other
HCCF inmates, but none of the other inmates signed the complaint or filed a motion to proceed in
forma pauperis. On March 21, 2018, the Court issued as order determining that Shipp is the only
proper Plaintiff in this matter, granting him leave to proceed in forma pauperis and assessing the
filing fee in accordance with the Prison Litigation Reform Act (PLRA), 28 U.S.C. §§ 1915(a)-(b).
The Clerk shall record the Defendants as Core Civic1, HCCF Assistant Warden Charlotte Burns,
HCCF Chaplain John Gore, HCCF Warden Grady Perry, and HCCF Assistant Warden J. Rychen.
The Defendants are sued in their individual and official capacities.
The complaint is filed pursuant to 42 U.S.C. §§ 1983, 1985 and 1986, the Religious Land
Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc-1, and the Religious

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com.

Corrections Corporation of America is now known as CoreCivic. See www.corecivic.

Freedom Restoration Act (RFRA), 42 U.S.C. §§ 2000bb et seq.2 Shipp alleges the Defendants
have denied requests by the Brotherhood of Sunni Community Muslims at HCCF for Halal meals
and religious prayer oil. (ECF No. 1 at PageID 4, 7.) Defendants, and Defendant Gore in
particular, allegedly have a new in-house policy prohibiting Halal meals. (Id. at PageID 7.) Gore
also allegedly is using the new policy to force Sunni Muslim inmates to purchase prayer oils from
a non-Halal Islamic vendor, in violation of their religious tenets. (Id.) The attachments to the
complaint also appear to allege that Sunni Muslim services and/or “call outs” for prayers were at
times canceled or delayed by Shift Commander Lieutenant Godwin and Shift Commander Grier,
who are not named as defendants, in retaliation for the filing of grievances. (ECF No. 1-1 at
PageID 27-34, 36-40.) The complaint seeks monetary damages as well as declaratory and
injunctive relief. (ECF No. 1 at PageID 21.)3
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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As an inmate in state custody, Shipp has no claim under RFRA. In City of Boerne v.
Flores, 521 U.S. 507 (1997), the Supreme Court held that application of RFRA to the states or to
state actors exceeded the authority of Congress under Section 5 of the Fourteenth Amendment.
See, e.g., Ervin v. Davis, No. 2:16-cv-186, 2017 WL 2573251, at *3 (S.D. Ohio June 14, 2017).
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Since the filing of the complaint, numerous “amendments” have been filed, consisting
only of affidavits and exhibits from other inmates at the HCCF. (See ECF Nos. 14, 15, 16, 17 &
18.) Other documents purport to be from Shipp but are not signed by him. (See ECF Nos. 10,
11, 12 & 13.) The Court will not consider any of these documents.

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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.”).
The complaint does not state a claim under 42 U.S.C. § 1985(3), which prohibits
conspiracies “for the purpose of depriving, either directly or indirectly, any person or class of
persons of the equal protection of the laws or of equal privileges and immunities under the laws.”
[I]n order to state a cause of action under § 1985, the plaintiff must allege that the
defendants (1) conspired together, (2) for the purpose of depriving, directly or
indirectly, a person or class of persons of the equal protection of the laws, (3) and
committed an act in furtherance of the conspiracy, (4) which caused injury to person

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or property, or a deprivation of any right or privilege of a citizen of the United
States, and (5) and that the conspiracy was motivated by racial, or other class-based,
invidiously discriminatory animus.
Bass v. Robinson, 167 F.3d 1041, 1050 (6th Cir. 1999); see also Center for Bio-Ethical Reform,
Inc. v. City of Springboro, 477 F.3d 807, 832 (6th Cir. 2007).
Shipp does not sufficiently allege a claim for civil conspiracy. As the Sixth Circuit Court
of Appeals has explained:
In Spadafore v. Gardner, 330 F.3d 849 (6th Cir. 2003), we stated the standard
governing a § 1983 conspiracy claim:
A civil conspiracy is an agreement between two or more persons to
injure another by unlawful action. Express agreement among all the
conspirators is not necessary to find the existence of a civil
conspiracy. Each conspirator need not have known all of the details
of the illegal plan or all of the participants involved. All that must
be shown is that there was a single plan, that the alleged
coconspirator shared in the general conspiratorial objective, and that
an overt act was committed in furtherance of the conspiracy that
caused injury to the complainant.
330 F.3d at 854 (quoting Hooks v. Hooks, 771 F.2d 935, 943–44 (6th Cir. 1985)).
Although circumstantial evidence may prove a conspiracy, “[i]t is well-settled that
conspiracy claims must be pled with some degree of specificity and that vague and
conclusory allegations unsupported by material facts will not be sufficient to state
such a claim under § 1983.” Id. (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1538
(6th Cir. 1987)); accord Farhat v. Jopke, 370 F.3d 580, 599 (6th Cir. 2004). That
pleading standard is “relatively strict.” Fieger v. Cox, 524 F.3d 770, 776 (6th Cir.
2008).
Heyne v. Metro. Nashville Pub. Sch., 655 F.3d 556, 563 (6th Cir. 2011).

An assertion,

unaccompanied by supporting facts, that parties conspired with each other is a legal conclusion
that a court need not accept as true. Id. at 563-64 (collecting cases). Allegations of “a plan or
agreement to violate [the plaintiff’s] constitutional rights” is required. Id. at 564. The complaint
alleges no facts to suggest that the conduct the Defendants conspired together.

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A claim under 42 U.S.C. § 1986 is entirely derivative of a valid claim pursuant to 42 U.S.C.
§ 1985. Bass, 167 F.3d at 1051 n.5. Because Shipp has no valid claim under § 1985, he also has
no claim under § 1986.
Shipp has asserted claims pursuant to 42 U.S.C. § 1983, which 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).
Shipp’s official capacity claims against the Defendants, who are CoreCivic officers and
employees, are properly construed as claims against CoreCivic, also a named Defendant.
However, the complaint does not allege a viable claim against CoreCivic. “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. 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). CoreCivic “cannot

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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 CoreCivic, Shipp
“must show that a policy or well-settled custom of the company was the ‘moving force’ behind
the alleged deprivation” of his rights. Id. Shipp does not allege that his injuries are due to an
unconstitutional policy or custom of CoreCivic.4
Shipp’s complaint purport to assert claims regarding the treatment of all Sunni Muslims at
the HCCF; however, he lacks standing to sue for deprivations of the rights of his fellow inmates.
“To state a case or controversy under Article III [of the United States Constitution], a plaintiff
must establish standing.” Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 133 (2011).
[T]he irreducible constitutional minimum of standing contains three elements:
First, the plaintiff must have suffered an “injury in fact”—an invasion of a legally
protected interest which is (a) concrete and particularized, and (b) actual or
imminent, not conjectural or hypothetical. Second, there must be a causal
connection between the injury and the conduct complained of . . . . Third, it must
be likely, as opposed to merely speculative, that the injury will be redressed by a
favorable decision.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal quotation marks, footnote
and citations omitted); see also Lance v. Coffman, 549 U.S. 437, 439 (2007) (same). “In requiring
a particular injury, the Court meant that the injury must affect the plaintiff in a personal and
individual way.” Winn, 563 U.S. at 134 (internal quotation marks and citation omitted). Unless
the plaintiff suffered an actual injury, he “was not the aggrieved party, [and] he lacks standing” to
sue. Percival v. McGinnis, 24 F. App’x 243, 246 (6th Cir. 2001); see also Corn v. Sparkman, No.
95-5494, 1996 WL 185753, at *1 (6th Cir. Apr. 17, 1996) (“A prisoner cannot bring claims on
behalf of other prisoners. A prisoner must allege a personal loss and seek to vindicate a deprivation

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Shipp alleges only that the policy regarding no Halal meals is an “in-house” policy at
the HCCF. (ECF No. 1 at PageID 7.) He concedes that other CoreCivic-operated prison
facilities “do and have had an Halal meal program.” (Id. at PageID 8.)

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of his own constitutional rights.” (citation omitted)). Shipp does not allege that he made any
personal request for Halal meals which was denied or that he sought permission from any named
Defendant to obtain prayer oil from a different vendor but was denied. Rather, the claims are made
on behalf of the general Sunni Muslim community at the HCCF. See Jacobs v. Strickland, No.
2:08-cv-680, 2009 WL 2476896, at *3 (S.D. Ohio Aug. 11, 2009) (“The Magistrate Judge . . .
correctly concluded that Mr. Jacobs could not assert the claims of other Sunni Muslims who were
allegedly deprived of their rights under RLUIPA and the United States Constitution.”).
With regard to the allegation that Sunni Muslim services or prayers were canceled or
delayed in retaliation for exercising his First Amendment right to file grievances, Shipp does not
allege that any of the named Defendants was responsible. The only HCCF personnel allegedly
involved were Shift Commander Lieutenant Godwin and Shift Commander Grier, who are not
named as defendants. (ECF No. 1-1 at PageID 27-34, 36-40.)
For the foregoing reasons, Shipp has failed to state a claim against any Defendant on which
relief may be granted.
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

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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 Shipp’s complaint would be futile
as a matter of law.
In 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, leave
to amend is GRANTED. Any amendment must be filed within twenty-one (21) days after the date
of this order. Shipp is advised that an amended complaint will supersede the prior pleadings 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 Shipp 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.
Shipp is reminded that he must promptly notify the Clerk, in writing, of any change of
address or extended absence.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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