Long v. Henry County Jail et al

Filing 6

ORDER DISMISSING CLAIMS AND GRANTING LEAVE TO AMEND. Signed by Judge J. Daniel Breen on 10/4/18. (mbm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
BRIAN MARQUINCE LONG,
Plaintiff,
v.

No. 1:17-cv-01141-JDB-cgc

HENRY COUNTY JAIL, STAFF OFFICER
FNU THOMAS, PATROLMAN FNU MYRICK,
CORPORAL FNU WHITAKER, OFFICER FNU
COFFMAN, BENTON COUNTY JAIL, LIEUTENANT
STEVE PAGE, CAPTAIN FNU PHILLIPS
and JOHN KRISENSKI,
Defendants.

ORDER DISMISSING CLAIMS AND GRANTING LEAVE TO AMEND

On April 26, 2017, Plaintiff, Brian Marquince Long, an inmate then incarcerated at the
Henry County Jail in Paris, Tennessee, filed a pro se complaint pursuant to 42 U.S.C. § 1983 as
well as a motion to proceed in forma pauperis. (Docket Entry (“D.E.”) 1, 2.) The Court granted
Plaintiff 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). (D.E. 4.)
I.

BACKGROUND

In his complaint, the inmate states that he was subjected to a laundry list of conduct that
violated his federal constitutional rights, which he has separated into five claims. (D.E. 1 at
PageID 2.) The complaint is sparse on factual allegations, making it difficult for the Court to
effectively understand what, exactly, Long is asserting. In claim one, Plaintiff asserts that
Defendant, Staff Officer FNU Thomas, “sexually assaulted and sexually abused” him on March
13, 2017, at the Henry County Jail “by inserting his finger up [Long’s] rectum.” (Id.) The
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second claim alleges that Defendants, Officer FNU Coffman and Corporal FNU Whitaker,
“intimidated” Plaintiff and “put [him] in fear” at Henry County Jail on May 20, 2017. (Id.) In
his third claim, Long maintains that Defendant, Patrolman FNU Myrick, racially profiled him
and “retaliated with discrimination by targeting” him on February 1, 2017 in Henry County,
Tennessee. (Id.) In claim four, the inmate submits that he was subject to cruel and unusual
punishment as a result of the threats and intimidation of Defendant, Lieutenant Steve Page. (Id.)
The fifth claim asserts a “violation of order to transport, bre[a]ch of security, [and] failure to
notify couns[e]l” against Defendants Henry County Jail, Lieutenant Steve Page, Benton County
Jail, Captain FNU Phillips, and John Krisenski on May 26, 2017. (Id.) Plaintiff states no further
facts that explain or connect any of this conduct.
II.

SCREENING STANDARD

The Court is required to screen prisoner complaints and to dismiss any complaint, or any
portion thereof, if it “(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). To assess whether the complaint states
a claim on which relief may be granted, the Court applies the pleadings standard under Federal
Rule of Civil Procedure 12(b)(6), announced 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 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)

(alteration in original) (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

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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.”).
Despite being “held ‘to less stringent standards,’” pro se parties, including those that are
incarcerated, are not exempt from the requirements of the Federal Rules of Civil Procedure.
Williams, 631 F.3d at 383 (quoting Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004)); see
Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989); see also Young Bok Song v. Gipson, 423 F.
App’x 506, 510 (6th Cir. 2011) (“declin[ing] to affirmatively require courts to ferret out the
strongest cause of action on behalf of pro se litigants”).
III.

ANALYSIS

42 U.S.C. § 1983 provides as follows:
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 . . . .
To state a claim under § 1983, a plaintiff must allege two elements: (1) a deprivation of a right
“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).
Claim One
Plaintiff’s allegations of sexual assault and harassment are best understood as claims of
illegal search, in violation of the prisoner’s Fourth Amendment right to be free from
unreasonable searches and seizures, and excessive force, in violation of his Eighth Amendment
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right to be free from cruel and unusual punishment. Both of these claims suffer from the same
fatal flaw: the complaint fails to explain why the digital search was illegal.
Strip searches are not per se unconstitutional under the Fourth Amendment. See Jackson
v. Herrington, 393 F. App’x 348, 354 (6th Cir. 2010) (finding a jail’s policy that all transferees
be strip searched constitutional) (citing Bell v. Wolfish, 441 U.S. 520, 558 (1979)). This is
“[b]ecause ‘the difficulties of operating a [prison] must not be underestimated by the courts.’”
Stoudemire v. Michigan Dept. of Corr., 705 F.3d 560, 571 (6th Cir. 2013) (alteration in original)
(quoting Florence v. Bd. Of Chosen Freeholders of Cty. of Burlington, 566 U.S. 318, 326
(2012)). When analyzing the constitutionality of such a search, a court must engage in a threestep analysis:
First, we determine the nature of intrusion, “examin[ing] the scope, manner, and
location of the search.” Second, we “evaluate the need for the search, giving due
deference to the correctional officer's exercise of her discretionary functions.”
And third, “we determine whether the search was reasonably related to legitimate
penological interests by weighing the need against the invasion.”
Sumpter v. Wayne Cty., 868 F.3d 473, 482 (6th Cir. 2017) (internal citations omitted) (citing
Stoudemire, 705 F.3d at 572). Long has not provided the Court with any context for the search,
and because of this, his statement that the search amounted to sexual assault or harassment is a
mere conclusion of law.
This reasoning also applies to Plaintiff’s Eighth Amendment claim. Long’s statement
that his anus was digitally penetrated along with an insistence that this amounted to misconduct
is not enough information to pass muster under the pleading standards laid out above. See Robb
v. Davis, Civil Action No. 3:07CV-P195-H, 2007 WL 2407235 (W.D. Ky. Aug. 21, 2007) (“The
mere fact that [the defendant] penetrated Plaintiff’s anus in and of itself is not enough to show
malicious conduct.”) For these reasons, Claim One is DISMISSED.

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Claims Two through Five
Plaintiff’s remaining claims suffer from a similar deficiency. However, the paucity of
factual allegations in these claims prevents the Court from engaging in even the most
rudimentary of analyses. Because of this, these claims are also DISMISSED.
IV.

LEAVE TO AMEND

The Sixth Circuit has held that a district court may allow a prisoner to amend his
complaint to avoid sua sponte dismissal under the Prison Litigation Reform Act, Pub. L. No.
104-34, 110 Stat. 1321 (1996). LaFountain v. Harry, 716 F.3d 944, 951 (6th Cir. 2013). The
gravamen of the inmate’s complaint could potentially be of a very serious nature. The Court
finds it appropriate to provide him an opportunity to properly assert those claims and, therefore,
grants leave to amend the complaint.
That Long has frequently filed complaints that have been dismissed for various reasons
has not escaped the Court’s notice. See, e.g., Long v. Henry County Sheriff and Police Dep’t,
1:15-cv-01236-JDT-cgc, (D.E. 16) (Aug. 16, 2018) (dismissing Plaintiff’s claims and assessing a
first “strike”). Accordingly, if Plaintiff fails to properly amend his complaint within the time the
Court allows him. the Court will dismiss this action for failure to state a claim and assess another
“strike” for the purposes of 28 U.S.C. § 1915(g).
V.

CONCLUSION

Accordingly, Long’s claims are DISMISSED. If Plaintiff desires to file an amended
complaint as outlined herein, he must do so within thirty days of the entry of this order.
Pursuant to 28 U.S.C. § 1915(a)(3), the Court must also consider whether an appeal by
Plaintiff in this case would be taken in good faith. The good faith standard is an objective one.
Coppedge v. United States, 369 U.S. 438, 445 (1962). The test for whether an appeal is taken in

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good faith is whether the litigant seeks appellate review of any issue that is not frivolous. Id. It
would be inconsistent for a district court to determine that a complaint should be dismissed prior
to service on 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 Plaintiff would not be taken in good faith.
IT IS SO ORDERED this 4th day of October 2018.

s/ J. DANIEL BREEN
UNITED STATES DISTRICT JUDGE

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