Fuller v. Tennessee Department of Correction et al

Filing 6

ORDER DISMISSING COMPLAINT, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by Judge James D. Todd on 2/20/18. (mbm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
JEREMY B. FULLER,
Plaintiff,
VS.
TENNESSEE DEPARTMENT OF
CORRECTION, ET AL.,
Defendants.

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No. 17-1145-JDT-cgc

ORDER DISMISSING COMPLAINT,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

On July 28, 2017, Plaintiff Jeremy B. Fuller, who was, at the time, a Tennessee Department
of Correction (TDOC) inmate housed at the Northwest Correctional Complex (NWCX) in
Tiptonville, Tennessee,1 filed a pro se complaint pursuant to 42 U.S.C. § 1983, accompanied by a
motion to proceed in forma pauperis. (ECF Nos. 1 & 2.) The Court subsequently 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 the TDOC and NWCX Sergeant Zac Rickettes.
I. The Complaint
Fuller alleges that on May 7, 2017, Defendant Rickettes entered Fuller’s cell in order to
search it. (ECF No. 1 at PageID 2.) Fuller initially obeyed when Rickettes instructed him to exit

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On February 16, 2018, the Clerk received a change of address from Fuller indicating
that he had been released from prison. (ECF No. 5.)

the cell. (Id.) But when he observed that Rickettes was having difficulty opening a box of Fuller’s
belongings Fuller re-entered the cell, walked up to Rickettes, and allegedly offered to help him open
it. (Id.) Rickettes allegedly drew his taser and threatened to tase Fuller. (Id.) Fuller states that
although he backed out of the cell on his own Rickettes followed him out, still aiming the taser at
him. (Id. at PageID 2-3.) Rickettes allegedly followed Fuller with the taser while calling him a
bitch. (Id. at PageID 3.) Fuller contends that calling someone in prison a bitch is “a cardinal sin”
which means you want to fight with them. (Id.) After Fuller later returned to his cell, Rickettes
allegedly continued to antagonize him in an effort to get Fuller to react. (Id.) Rickettes allegedly
drew his taser again and said “f*** you” to Fuller. (Id.)
Fuller asks that Rickettes be terminated from his job and seeks $1,000,000 in compensatory
damages. (Id. at PageID 4.)
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

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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 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 “fantastic 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)

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(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 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.”).
Plaintiff 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.

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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).
Claims against the TDOC are considered claims against the State of Tennesseee. However,
Plaintiff cannot sue the State of Tennessee under 42 U.S.C. § 1983. The Eleventh Amendment to
the United States Constitution provides that “[t]he Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const.
amend. XI. The Eleventh Amendment has been construed to prohibit citizens from suing their own
states in federal court. Welch v. Tex. Dep’t of Highways & Pub. Transp., 483 U.S. 468, 472 (1987);
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Employees of Dep’t of Pub.
Health & Welfare v. Mo. Dep’t of Pub. Health & Welfare, 411 U.S. 279, 280 (1973); see also Va.
Office for Protection & Advocacy v. Stewart, 131 S. Ct. 1632, 1638 (2011) (“A State may waive its
sovereign immunity at its pleasure, and in some circumstances Congress may abrogate it by
appropriate legislation. But absent waiver or valid abrogation, federal courts may not entertain a
private person’s suit against a State.” (citations omitted)). By its terms, the Eleventh Amendment
bars all suits, regardless of the relief sought. Pennhurst, 465 U.S. at 100-01. Tennessee has not
waived its sovereign immunity. See Tenn. Code Ann. § 20-13-102(a). Moreover, a state is not a
person within the meaning of 42 U.S.C. § 1983. Lapides v. Bd. of Regents of the Univ. Sys. of Ga.,
535 U.S. 613, 617 (2002); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989).
Fuller’s claims must be analyzed under the Eighth Amendment, which prohibits cruel and
unusual punishments. See generally Wilson v. Seiter, 501 U.S. 294 (1991). An Eighth Amendment

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claim consists of both objective and subjective components. Farmer v. Brennan, 511 U.S. 825, 834
(1994); Hudson v. McMillian, 503 U.S. 1, 8 (1992); Wilson, 501 U.S. at 298; Williams v. Curtin, 631
F.3d at 383; Mingus v. Butler, 591 F.3d 474, 479-80 (6th Cir. 2010). The objective component
requires that the deprivation be “sufficiently serious.” Farmer, 511 U.S. at 834; Hudson, 503 U.S.
at 8; Wilson, 501 U.S. at 298.
To satisfy the objective component of an Eighth Amendment claim, a prisoner must show
that he “is incarcerated under conditions posing a substantial risk of serious harm,” Farmer, 511
U.S. at 834; see also Miller v. Calhoun Cnty., 408 F.3d 803, 812 (6th Cir. 2005), or that he has been
deprived of the “‘minimal civilized measure of life’s necessities,’” Wilson, 501 U.S. at 298 (quoting
Rhodes v. Chapman, 452 U.S. 337, 347 (1981)); see also Hadix v. Johnson, 367 F.3d 513, 525 (6th
Cir. 2004). The Constitution “‘does not mandate comfortable prisons.’” Wilson, 501 U.S. at 298
(quoting Rhodes, 452 U.S. at 349). “[R]outine discomfort ‘is part of the penalty that criminal
offenders pay for their offenses against society.’” Hudson, 503 U.S. at 9 (quoting Rhodes, 452 U.S.
at 347). Thus, “extreme deprivations are required to make out a conditions-of-confinement claim.”
Id.
Although Fuller alleges that Rickettes threatened him with a taser, he does not allege that
Rickettes actually used the taser on him or physically harmed him in any way whatsoever. The mere
threat to use a taser is insufficient to support an Eighth Amendment claim of excessive force. See
Pickard v. Hardy, No. 3:15-cv-P305-DJH, 2016 WL 865327, at *4 (W.D. Ky. Mar. 2, 2016);
Salvodon v. Ricotta, No. 07-CV-174 (ENV) (LB), 2013 WL 3816728, at *6 (E.D.N.Y. July 22,
2013).

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The verbal slurs allegedly made by Rickettes also do not satisfy the objective component of
an Eighth Amendment claim. See, e.g., Pasley v. Conerly, 345 F. App’x 981, 984 (6th Cir. 2009);
Jones Bey v. Johnson, 248 F. App’x 675, 677-78 (6th Cir. 2007) (no Eighth Amendment claim for
prison guard’s “use of racial slurs and other derogatory language”); Miller v. Wertanen, 109 F.
App’x 64, 65 (6th Cir. 2004) (a guard’s verbal threat to sexually assault an inmate “was not
punishment that violated [the prisoner’s] constitutional rights”); Johnson v. Unknown Dellatifa, 357
F.3d 539, 546 (6th Cir. 2004) (“harassment and verbal abuse . . . do not constitute the type of
infliction of pain that the Eighth Amendment prohibits”); Johnson v. Moore, 7 F. App’x 382, 384
(6th Cir. 2001) (“Allegations of verbal harassment and verbal abuse by prison officials toward an
inmate do not constitute punishment within the meaning of the Eighth Amendment. Nor do
allegations of verbal harassment rise to the level of unnecessary and wanton infliction of pain
proscribed by the Eighth Amendment.” (citation omitted)); Miles v. Tchrozynski, No. 2:09-CV11192, 2009 WL 960510, at *1 (E.D. Mich. Apr. 7, 2009) (“Even verbal threats by a corrections
officer to assault an inmate do not violate an inmate’s Eighth Amendment rights. Verbal threats and
abuse made in retaliation for filing grievances are likewise not actionable.” (citation omitted)).
Not only do Fuller’s allegations fail to state an Eighth Amendment claim, the PLRA bars
prisoner suits “for mental or emotional injury suffered while in custody without a prior showing of
physical injury or the commission of a sexual act.” 42 U.S.C. § 1997e(e); see Braswell v. Corr.
Corp. of Am., 419 F. App’x 522, 626 (6th Cir. 2011). “[E]ven though the physical injury required
by § 1997e(e) for a § 1983 claim need not be significant, it must be more than de minimis for an
Eighth Amendment claim to go forward.” Flanory v. Bonn, 604 F.3d 249, 254 (6th Cir. 2010). In
this case, as stated, Fuller alleges no physical injury whatsoever.

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For these 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. Rhode Island, 511 F. App’x 4, 5 (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, 511 F. App’x at 5; 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 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.
For the foregoing reasons, the complaint is DISMISSED for failure to state a claim on which
relief may be granted, pursuant to 28 U.S.C. §§ 1015(e)(2)(B)(ii)-(iii) and 1915A(b)(1)-(2). Leave
to amend is DENIED.

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Pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rule of Appellate Procedure 4(a), 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 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 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.
Accordingly, it is CERTIFIED, pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rule of
Appellate Procedure 4(a), that any appeal in this matter by Plaintiff would not be taken in good faith.
Leave to appeal in forma pauperis is DENIED. If Fuller files a notice of appeal, he must also pay
the full $505 appellate filing fee or file a motion for leave to appeal in forma pauperis and
supporting affidavit in the Sixth Circuit Court of Appeals.
For analysis under 28 U.S.C. § 1915(g) of future filings, if any, by Plaintiff, this is the first
dismissal of one of his cases as frivolous or for failure to state a claim. 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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