Gourley v. Bargery et al

Filing 10

ORDER DISMISSING COMPLAINT, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH, AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE. Signed by Judge James D. Todd on 8/23/18. (mbm)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
KENNETH SABER GOURLEY,
Plaintiff,
VS.
ALAN BARGERY, ET AL.,
Defendants.

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No. 17-1112-JDT-cgc

ORDER DISMISSING COMPLAINT,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH,
AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE
On June 12, 2017, Plaintiff Kenneth Saber Gourley, who is currently incarcerated at the
Turney Center Industrial Complex Annex in Clifton, 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 Gourley’s prior incarceration at the Dyer County Law

Enforcement Center (Jail) in Dyersburg, Tennessee. On June 13, 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. 4.) The Clerk shall record the
Defendants as Lieutenant Alan Bargery; Paul Forrester; and Dyer County.1 Defendant Bargery
is sued only in his official capacity. (ECF No. 1 at PageID 3.) However, Gourley does not
specify the capacity in which Defendant Forrester is sued.

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Gourley identifies both Bargery and Forrester as Jail Administrators. (ECF No. 1 at
PageID 2.) In addition, while it is not clear that Gourley intended to name the Jail itself as a
Defendant, to the extent that he does intend to sue the Jail those claims are construed as claims
against Dyer County.

Gourley alleges in the complaint that he filed several grievances while he was
incarcerated at the Jail and that Defendant Bargery received those grievances but failed to
respond to any of them. (ECF No. 1-1 at PageID 4.) In emergency medical grievances filed on
December 27 and 29, 2016, Gourley complained that he “blacked out” or had a “blackout spell”
with chest pain or tingling in his limbs and numbness in his hand. (Id.) On December 27,
Officer Hinson checked Gourley’s blood pressure then left and returned with a pill. (ECF No.
1-2 at PageID 7.) Gourley asked to see the nurse the next day but was told he would have to wait
two days. (Id.) On December 29, Corporal Favre checked Gourley’s blood pressure after
Gourley blacked out and also gave him a pill. (Id. at PageID 8.) However, Gourley did not see
the nurse even though two days had passed since the first episode. (ECF No. 1-1 at PageID 4.)
Gourley filed a third grievance concerning medical care on February 24, 2017, after again
passing out but allegedly receiving no medical attention. (Id. at PageID 5; ECF No. 1-2 at
PageID 11.)
On February 10, 2017, Gourley filed a grievance complaining that Ms. Sandra, whose
last name is not provided, was denying his constitutional right to send outgoing mail. (ECF No.
1-1 at PageID 4-5; ECF No. 1-2 at PageID 9.) Gourley filed another grievance regarding his
mail on February 22, 2017, complaining that Ms. Sandra had opened his incoming “federal mail”
before notifying him of its receipt. (ECF No. 1-1 at PageID 4-5; ECF No. 1-2 at PageID 10.)
Gourley also includes in the comnplaint a list of nine inmate request forms (“FIZZ”
Forms)2 submitted between December 19, 2016, and March 14, 2017, in which he requested
various kinds of legal information or materials. (ECF No. 1-1 at PageID 6; see also ECF No. 1-2

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A “FIZZ” Form seems to be a shorthand name for a form entitled “Request for Favor,
Information, Service, or Suggestion.” (See ECF No. 1-2 at PageID 14.)

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at PageID 14-18.) In each instance, Gourley indicates he did not receive the information or
materials sought.
Gourley seeks monetary damages against Defendant Bargery in his official capacity and
an injunction against Defendant Forrester requiring Forrester to update the Jail with better legal
materials. (ECF No. 1 at PageID 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).
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

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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. Wells v. Brown,
891 F.2d 591, 594 (6th Cir. 1989); see also Brown v. Matauszak, 415 F. App’x 608, 612-13 (6th
Cir. 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)

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(“[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.”). 
Gourley 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).
Claims against Defendants Bargery and Forrester in their official capacities are construed
as claims against their employer, Dyer County, which is a named Defendant. When a § 1983
claim is made against a municipality or county, 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 Gourley’s claims against Dyer County.

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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
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 &

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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. Corr.
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 of Dyer County which caused injury to Gourley.
Alternatively, if Gourley actually intended to sue Defendant Bargery in his individual
capacity, Barley’s participation in investigating, processing, or denying grievances cannot in
itself constitute sufficient personal involvement to state a claim of constitutional
dimension. Simpson v. Overton, 79 F. App’x 117, 120 (6th Cir. 2003); see also Martin v.
Harvey, 14 F. App’x 307, (6th Cir. 2001) (“The denial of the grievance is not the same as the
denial of a request to receive medical care.”).
With regard to any claims against Defendant Forrester in his individual capacity, the
complaint contains no allegations of wrongdoing against him. When a complaint fails to allege
any action by a defendant, it necessarily fails to “state a claim for relief that is plausible on its
face.” Twombly, 550 U.S. at 570. Furthermore, Gourley has no claim against Defendant
Forrester merely because of his position as Jail Administrator.

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Under 42 U.S.C. § 1983,

“[g]overnment officials may not be held liable for the unconstitutional conduct of their
subordinates under a theory of respondeat superior.” Ashcroft v. Iqbal, 556 U.S. at 676; see also
Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984). Thus, “a plaintiff must plead that each
Government-official defendant, through the official’s own official actions, violated the
Constitution.” Iqbal, 556 U.S. at 676.
There must be a showing that the supervisor encouraged the specific instance of
misconduct or in some other way directly participated in it. At a minimum, a
§ 1983 plaintiff must show that a supervisory official at least implicitly
authorized, approved or knowingly acquiesced in the unconstitutional conduct of
the offending subordinates.
Bellamy, 729 F.2d at 421 (citation omitted).

A supervisory official, who is aware of the

unconstitutional conduct of his subordinates, but fails to act, generally cannot be held liable in
his individual capacity. Grinter v. Knight, 532 F.3d 567, 575-76 (6th Cir. 2008); Gregory v. City
of Louisville, 444 F.3d 725, 751 (6th Cir. 2006); Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir.
1999); Lillard v. Shelby Cnty. Bd. of Educ., 76 F.3d 716, 727-28 (6th Cir. 1996). As stated, the
complaint contains no factual allegations against Defendant Forrester; therefore, Gourley does
not sufficiently allege that Forrester, through his own actions, violated Gourley’s rights.3
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.
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)

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Furthermore, Gourley’s claims for injunctive relief are moot because Gourley is no
longer incarcerated at the Jail. See Moore v. Curtis, 68 F. App’x 561, 562 (6th Cir. 2003)
(claims for injunctive relief against prison staff moot when inmate transferred to another prison);
Tramber v. Pleasant, No. 4:12CV-P31-M, 2012 WL 4594339, at *5 (W.D. Ky. Oct. 2, 2012)
(same).

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(“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 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 leave to amend is not warranted.
In conclusion, the Court DISMISSES Gourley’s 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). Leave
to amend is DENIED.
The Court must also consider whether an appeal by Gourley in this case would be taken
in good faith. The test for whether an appeal is taken in good faith is whether the litigant seeks
appellate review of any issue that is not frivolous. Coppedge v. United States, 369 U.S. 438, 445
(1962). It would be inconsistent for a district court to determine that a complaint should be
dismissed prior to service on the Defendants, but has sufficient merit to support an appeal in
forma pauperis. See Williams v. Kullman, 722 F.2d 1048, 1050 n.1 (2d Cir. 1983). The same
considerations that lead the Court to dismiss this case for failure to state a claim also compel the
conclusion that an appeal would not be taken in good faith. Therefore, it is CERTIFIED,
pursuant to 28 U.S.C. § 1915(a)(3), that any appeal in this matter by Gourley would not be taken
in good faith.

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The Court must also address the assessment of the $505 appellate filing fee if Gourley
nevertheless appeals the dismissal of this case. A certification that an appeal is not taken in good
faith does not affect an indigent prisoner plaintiff’s ability to take advantage of the installment
procedures contained in § 1915(b). See McGore v. Wrigglesworth, 114 F.3d 601, 610-11 (6th
Cir. 1997), partially overruled on other grounds by LaFountain, 716 F.3d at 951. McGore sets
out specific procedures for implementing the PLRA, 28 U.S.C. § 1915(a)-(b). Therefore, if
Gourley wants to pay the appellate filing fee in installments, he must comply with the procedures
set out in the PLRA and McGore by filing an updated in forma pauperis affidavit and a current,
certified copy of his inmate trust account for the six months immediately preceding the filing of
the notice of appeal.
For analysis under 28 U.S.C. § 1915(g), this is the second dismissal of one of Gourley’s
cases as frivolous or for failure to state a claim.4 This “strike” shall take effect when judgment is
entered. Coleman v. Tollefson, 135 S. Ct. 1759, 1763-64 (2015).
The Clerk is directed to prepare a judgment.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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Gourley previously filed Gourley, v Hughes, et al., No. 17-1044-JDT-cgc (W.D. Tenn.
Mar. 7, 2018) (dismissed for failure to state a claim).

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