Wright v. Whiteville Correctional Facility et al

Filing 10

ORDER DENYING MOTION TO APPOINT COUNSEL, DENYING MOTIONS TO SUBMIT STATEMENTS, DISMISSING COMPLAINT AND GRANTING LEAVE TO AMEND. Signed by Judge James D. Todd on 3/23/18. (mbm)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
WINFRED WRIGHT,
Plaintiff,

VS.

WHITEVILLE CORRECTIONAL
FACILITY, ET AL.,
Defendants.

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No. 17-1083-JDT-cgc

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

On April 26, 2017, Plaintiff Winfred Wright, who is incarcerated at the Whiteville
Correctional Facility (WCF) in Whiteville, Tennessee, filed a pro se complaint pursuant to 42
U.S.C. § 1983 and a motion to proceed in forma pauperis. (ECF Nos. 1 & 5.) In an order issued
April 27, 2017, 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.
8.) The Clerk shall record the Defendants as the WCF and Correctional Officer First Name
Unknown Matthews.1

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Wright also purports to sue three “Jane Doe” defendants, a “John Doe Medical Clinic,”
and a “John” or “Jane Doe Nurse.” (ECF No. 1 at 4.) Error! Main Document Only.However,
service of process cannot be made on unidentified parties, and the filing of a complaint against
such defendants does not toll the running of the statute of limitation against those parties. See
Cox v. Treadway, 75 F.3d 230, 240 (6th Cir. 1996). If Wright seeks to sue any other individuals
or entities, he must identify them and file an amended or new complaint within the applicable

Along with the complaint, Wright also filed a motion for appointment of counsel. (ECF
No. 6.) Pursuant to 28 U.S.C. § 1915(e)(1), the “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, 60506 (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.” 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).
At this stage of the proceeding, because the complaint is being dismissed with leave to
amend, Wright has not satisfied his burden of demonstrating that the Court should exercise its
discretion to appoint counsel. Therefore, the motion for appointment of counsel is DENIED.
Also accompanying the complaint are separate motions in which Wright seeks to submit
witness statements by three other WCF inmates: William Dykes (ECF No. 2), Maxwell Novack

statute of limitations.
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(ECF No. 3), and Chris Wheeler (ECF No. 4). Only the motions concerning Novack and
Wheeler contain the statements referenced therein.

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Those statements are not sworn and

notarized, nor do they qualify as unsworn declarations made under penalty of perjury. See 28
U.S.C. § 1746. Therefore, the motions to submit the statements in support of Wright’s complaint
are DENIED.
I. The Complaint
Wright calls his complaint an “emergency” petition and alleges he is in danger of death
or dismemberment because he is being denied medical treatment for cancer that is all over his
body. (ECF No. 1 at 3, 5.) He states that he “kept constantly telling all the C/Os in this
complaint as well as medical” (id. at 3), but no one will help him (id. at 5). Wright alleges the
cancer is so severe that it is causing abrasions and serious infections in the lymph nodes of his
ears. (Id. at 5.) He seeks declaratory relief, punitive damages of $2 million, and medical
treatment or accommodations. (Id.)
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.

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Although the motion to submit Dykes’s statement says “see attached statements” (see
ECF No. 2 at 2), no statement by Dykes is actually included.
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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
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

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“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
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

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Wright 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.
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).
Wright’s claims against the WCF are construed against CoreCivic, a private prison
management company which operates the WCF. However, he does not state a viable claim
against the WCF/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 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). CoreCivic
“cannot be held liable under a theory of respondeat superior.” Braswell v. Corr. Corp. of Am.,
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419 F. App’x 622, 627 (6th Cir. 2011). Instead, to prevail on a § 1983 claim against CoreCivic,
Wright “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 Wright suffered an injury because of an
unconstitutional policy of custom of the WCF/CoreCivic.
Wright’s claim for inadequate medical care arises under the Eighth Amendment, which
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). The objective component requires that the deprivation be
“sufficiently serious.” Farmer, 511 U.S. at 834. The subjective component requires that the
official act with the requisite intent, that is, that he have a “sufficiently culpable state of mind.”
Farmer, 511 U.S. at 834.
The objective component of an Eighth Amendment claim for inadequate medical care
requires that a prisoner have a serious medical need. Blackmore v. Kalamazoo Cnty., 390 F.3d
890, 895 (6th Cir. 2004); Brooks v. Celeste, 39 F.3d 125, 128 (6th Cir. 1994). “[A] medical need
is objectively serious if it is one that has been diagnosed by a physician as mandating treatment
or one that is so obvious that even a lay person would readily recognize the necessity for a
doctor’s attention.” Blackmore, 390 F.3d at 897 (internal quotation marks and citations omitted).
To establish the subjective component of an Eighth Amendment medical claim, a
prisoner must demonstrate that the prison official 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). “[D]eliberate indifference describes a state of mind more
blameworthy than negligence.” Farmer, 511 U.S. at 835.

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The complaint fails to state an Eighth Amendment claim against Defendant Matthews.
The statement that Wright “kept constantly telling” the correctional officers presumably means
that he told them he wanted medical treatment. However, the complaint includes no additional
factual allegations setting out what Wright told Defendant Matthews in particular or describing
her actual response to that information. Without more, the complaint fails to sufficiently allege
that Defendant Matthews acted with deliberate indifference to Wright’s serious medical needs.
For 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. Standard for 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

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amendment comports with due process and does not infringe the right of access to the courts.”).
In this case, the Court finds that leave to amend is warranted.
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, leave to amend
is GRANTED. The text of the amended complaint must identify each defendant sued, set forth
the specific causes of action that are asserted against each defendant, and allege sufficient facts
to support each of those claims. If Wright 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.
Wright 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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