Nichols et al v. Core Civic et al

Filing 21

ORDER DISMISSING COMPLAINT AND GRANTING LEAVE TO AMEND. Signed by Judge James D. Todd on 11/1/18. (mbm)

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

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No. 17-1104-JDT-cgc

ORDER DISMISSING COMPLAINT AND GRANTING LEAVE TO AMEND

The pro se prisoner Plaintiff, Terrance Nichols, who is incarcerated at the
Hardeman County Correctional Facility (HCCF), in Whiteville, Tennessee, filed this action
jointly with five other inmates pursuant to 42 U.S.C. § 1983. (ECF No. 1.) On March 26,
2018, the Court issued an order that, inter alia, severed the Plaintiffs’ claims and directed
the Clerk to open separate cases for the other remaining Plaintiffs. (ECF No. 16.) Plaintiff
Nichols is now the sole Plaintiff in this case. After Plaintiff Nichols filed a motion to
proceed in forma pauperis and a trust account statement, 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. 20.) The Clerk shall record the
Defendants as Core Civic (formerly Corrections Corporation of America (CCA)); Tony
Parker, Commissioner of the Tennessee Department of Correction (TDOC); Grady Perry,
HCCF Warden; Charlotte Burns, Assistant Warden; Taneshia Douglas Robertson, Unit

Manager; Daniel Akers, Assistant Warden; Byron Ponds, Chief of Security; Nechol
Owens, Chief of Unit Management; Chaplain John Gore; and Darnell Peterson, TDOC
Liaison/HCCF Contract Manager.
The complaint alleges that various practices have been put in place at the HCCF,
each of which violates the constitutional rights of the inmates at the facility. The first
allegation concerns the implementation of the Tier Management System (TMS). The
complaint references two sections of TDOC policy #506.14. The first policy section
defines TMS as:
A supervision method that allows one half/tier of a medium or higher custody
level group of inmates out of their cells into the pod/unit for leisure activities.
This does not include the release of inmates for meals (outside the unit),
gym, recreation/ball field activities, education and/or programs.
TDOC Policy #506.14(IV)(K). The second section referenced in the complaint provides:
General population units/pods with a capacity to house 64 or more inmates
who are medium or higher custody shall supervise in accordance with Policy
#506.01, and shall adhere to the Tier Management System model at all times.
Inmates shall be allowed out of their cells for dayroom activities by tier/walk
as determined by the institutional policy; however, inmates housed on the
upper and lower tier/walk shall not be allowed out of their cells for
pod/dayroom activities at the same time. Staff shall ensure all cell doors are
secured when inmates are released out of their cell.
Id. #506.14(VI)(E).
Plaintiff asserts that the TMS is not appropriate for use at the HCCF because none
of the pods at the facility have the “capacity to house 64 or more inmates who are medium
or higher custody.” It is further alleged that the Defendants are violating the constitutional
rights of inmates at the HCCF because the TMS is being used for the illegal purpose of

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keeping inmates in their cells for longer periods of time regardless of security level. (ECF
No. 1 at 10.)
After implementation of the TMS, Defendants allegedly also implemented several
additional “new, unwritten and unpublished” policies or practices which allegedly violate
the constitutional rights of inmates at the HCCF. Under the policy or practice of “lockin/lock-out,” inmates are allowed to leave or enter their cells only once each hour; at all
other times, the cell door must remain locked. (Id. at 11.) This lock-in/lock-out policy
allegedly does not comply with TDOC Policy #506.14(V), which provides that “[h]ousing
assignments for inmates shall reflect a balance between custody and control requirements,
inmate needs, and TDOC resources consistent with the least restrictive level of custody.”
It is further alleged that lock-in/lock-out places inmates in danger because if violence
breaks out in a pod day-room, they cannot get back into their cells, out of harm’s way. In
addition, an inmate may not have access to the toilet and sink in his cell for up to an hour
at a time. (ECF No. 1 at 11.)
Plaintiff also alleges the Defendants began feeding most inmates in their pods
instead of having them go to the main dining room for every meal. This practice is said to
vary “from day to day, meal to meal, and pod to pod, without apparent reason.” (Id. at 12.)
Feeding inmates in their pods allegedly is done so that prison officials can keep the inmates
locked down both during and after meals. (Id. at 18.)
In addition, Defendants allegedly began using blanket punishments at the HCCF,
which punishes a group of inmates for the actions of only one or a few. It is stated that
most such punishments involve the lockdown of an entire pod, and the alleged result is that
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inmates are pitted against one another because the inmates who were not involved in the
misbehavior seek revenge on those in the pod who caused the lockdown. (Id. at 12.)
Plaintiff further alleges there is a policy or practice of excessive lockdowns at the
HCCF and that often no reason for a particular lockdown is given. Such lockdowns may
last from few minutes to for many days and may involve the entire prison only a particular
hallway or unit, or a particular pod or pods. Excessive lockdowns allegedly create hardship
on the inmates who are affected because telephone calls cannot be made, visits from the
public are suspended, programs are canceled, cells cannot be cleaned, showers are allowed
only every three days, provision of needed daily medications is inconsistent, and there is
no opportunity for exercise or fresh air. Inmates also allegedly are denied the opportunity
to earn program and good time credits during a lockdown. Further, inmates also sometimes
react to a lockdown by fighting among themselves over the limited access to telephones,
cleaning tools and showers. (Id. at 13-14.)
Another new policy that allegedly was implemented is a “CCA-specific” count time
from 6:00 p.m. to approximately 7:45. This policy allegedly is not required by or practiced
by the TDOC and is done merely for the convenience of HCCF and CoreCivic staff by
stopping all inmate movement for a period of time every evening, with inmates in the pods
locked down. (Id. at 18.)
Plaintiff also appears to allege the Defendants denied inmates at the HCCF access
to religious services in violation of the First Amendment. However, the only factual
allegations pertaining to such a claim is a long list stating that services for particular
religious faiths were not held on certain dates. For example:
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125. On January 4th, 2015, no Fresh Fire Pentecost religious service was
held.
126. On January 10th, 2015, no Seventh Day Adventist Religious service
was held.
....
132. On February 9th, 2015, all religious services were canceled.
....
249. On January 8th, 2016, no Jummah religious services were held.
....
274. On March 19th, 2016, no Christian Faith Tabernacle religious service
was held.
....
391. On November 15th, 2016, no Anchor of Hope religious service was
held.
....
447. On January 20th, 2017, inmates on F&G hallway were not allowed to
participate in the Jummah religious services.
....
518. On April 6, 2017, no Bellvue Baptist religious service was held.
....
(Id. at 25-47.)
The complaint alleges that the result of all these practices is the violation of the
inmates’ constitutional rights against cruel and unusual punishment, the denial of access to
law libraries, and the denial of access to religious services. (Id. at 15.) Further, the
complaint contends that Defendants Peterson and Perry are aware of the violations but have
failed to remedy the situation. (Id. at 15, 20.) Various types of injunctive relief are sought,
as well as “any other relief available.” (Id. a 59-61.)
The Court is required to screen prisoner complaints and to dismiss any complaint,
or any portion thereof, if the complaintC
(1)
is frivolous, malicious, or fails to state a claim upon which relief may
be granted; or

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(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). “[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.” Hill, 630 F.3d at 470
(citing Neitzke v. Williams, 490 U.S. 319, 325 (1989)). “Any complaint that is legally
frivolous would ipso facto fail to state a claim upon which relief can be granted.” Id. (citing
Neitzke, 490 U.S. at 328-29).
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
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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. Unlike a dismissal for failure to state a claim, where a judge
must accept all factual allegations as true, a judge does not have to accept
Afantastic or delusional@ factual allegations as true in prisoner complaints that
are reviewed for frivolousness.
Id. at 471 (citations and internal quotation marks omitted).
“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,
however, 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, 415 F.
App’x 608, 612, 613 (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))); 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
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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 is filed 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 § 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).
The allegations in the complaint in this case are stated only generally, asserting that
the policies and practices implemented by the Defendants affected most or all of the
inmates at the HCCF. However, Plaintiff Nichols does not have standing to assert claims
on behalf of any inmate other than himself, and there are no factual allegations in the
complaint setting out how Plaintiff Nichols was personally affected or harmed by the
policies and practices of which he complains. One of the three elements of standing is that
“the plaintiff must have suffered an injury in fact—an invasion of a legally protected
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interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural
or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal
quotation marks, footnote and citations omitted). “In requiring a particular injury, the
Court meant that the injury must affect the plaintiff in a personal and individual way.”
Arizona Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 134 (2011) (internal quotation
marks and citation omitted). Unless 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).
Because Plaintiff Nichols cannot sue on behalf of other HCCF inmates and has not
alleged that he suffered any personal injury from the policies or practices of which he
complains, he has not established that he has standing to pursue this action and has failed
to state a claim on which relief may be granted. Therefore, the case is subject to dismissal
in its entirety.
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., 511 F. App’x 4, 5 (1st Cir. 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. 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 . . . amending the complaint would be futile, then a sua
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sponte dismissal may stand.”); 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 concludes that Nichols should be given an
opportunity to amend the complaint.
In conclusion, the Court DISMISSES Nichols’s complaint for lack of standing
pursuant to Federal Rule of Civil Procedure 12(b)(1) and 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 twentyone (21) days after the date of this order.
Nichols is advised that any amended complaint will supersede the original
complaint and must be complete in itself without reference to the prior pleading. The text
of the amended 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. Each claim for relief
must be stated in a separate count and must identify each defendant sued in that count. If
Nichols 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

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