Beverly v. Gibson County Sheriff's Dept. et al

Filing 7

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 8/13/18. (mbm)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
GENGHIS BEVERLY,
Plaintiff,
VS.
GIBSON COUNTY, ET AL.,
Defendants.

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No. 17-1160-JDT-cgc

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

On August 18, 2017, Plaintiff Genghis Beverly, who was, at the time, an inmate at the
Gibson County Correctional Complex (Jail) in Trenton, Tennessee,1 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.) On August 23, 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 Gibson County,2 Gibson County Sheriff
Paul Thomas, Chief Jailer/Chief Deputy Danny Lewis, Corporal David Saffell, and Physician’s
Quality Care. The individual Defendants are sued only in their official capacities.

1

It appears that Beverly may have been released. The TDOC website indicates that his
sentence has expired. See https://apps.tn.gov/foil-app/search.jsp.
2

The Court construes claims against the Gibson County Sheriff’s Department as claims
against Gibson County.

In his complaint, Beverly alleged that he was a state inmate housed in the Jail. (ECF No.
1 at 7.) The Jail offered a work program that allowed state inmates to earn credits that could reduce
the length of their sentences. (Id.) However, Beverly alleged that he was not permitted to
participate in the work program because he was taking medication for his mental health issues.
(Id.) Defendant Saffell, who headed the work program, allegedly told Beverly that the exclusion
of inmates taking mental health medications from the work program was medical protocol. (Id.)
That statement allegedly was contradicted by Lieutenant Kelly, who is not a party to this
complaint, who told Beverly that he could work inside the Jail, just not outside. (Id.) Beverly
stated that he filed multiple grievances on the matter, wrote to the “medical,” and complained to
the staff asking to speak with someone other than Defendant Saffell, all without success; Beverly
alleged that Saffell still never considered him for a job assignment by Saffell. (Id. at 7-8.)
Beverly alleged that he was never evaluated to determine if he could perform the same
duties as other inmates while on his medication and that his doctor would testify to his ability to
work. (Id.) Additionally, Beverly stated that he inquired about getting off his medication so he
could work and earn sentence credits. (Id. at 8.) Although he eventually did stop taking his
medication, he argues he should not have had to do so in order to receive a job assignment. (Id.)
Beverly claims that he was discriminated against and was not treated equally to other inmates. He
seeks monetary damages and for the Jail to be required to give all inmates equal opportunities to
participate in the programs that are offered. (Id. at 9.)
On February 12, 2018, the Clerk received and filed a supplemental pleading alleging new
claims against the Jail and providing additional details about Beverly’s initial claim. (ECF No. 6.)
However, that pleading is not signed and will not be considered by the Court. See Fed. R. Civ. P.
11(a).

2

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 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)).

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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, 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

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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.”).
Beverly 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).
The complaint contains no allegations of wrongdoing by Physicians Quality Care or any
of its employees. 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.
Beverly sued the Gibson County Sheriff’s Department, which is the same as suing Gibson
County itself. However, his claims against Sheriff Thomas and Jail employees Lewis and Saffell
are brought only in their official capacities, which likewise must be construed as claims against
their employer, Gibson County. When a § 1983 claim is made against a county or municipality,
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.

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Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120 (1992). The second issue is dispositive
of Beverly’s remaining claims.
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

6

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 & 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-00018M, 2005 WL 1877964, at *2 (W.D. Ky. Aug. 5, 2005); Oliver v. City of Memphis, No. 04-2074B, 2004 WL 3316242, at *4 (W.D. Tenn. Dec. 2, 2004).
Beverly did not allege where the rule excluding inmates who take medications for mental
health conditions from the Jail’s work program originated.3 It could have been put in place by
Defendant Sheriff Thomas, by Defendant Saffell or another individual, or it could have been
required by the Tennessee Department of Correction or other state law. Furthermore, the actual
scope of the rule was ambiguous, as Beverly alleged that Saffell and Lewis interpreted it in
different ways. Thus, Beverly failed to sufficiently allege that he suffered an injury because of an
unconstitutional policy or custom of Gibson County.
For the foregoing reasons, the complaint is subject to dismissal 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

3

In the unsigned supplemental pleading Beverly submitted, he stated that it was
Defendant Saffell who posted a “paper” setting forth the rule and the reasons for it (ECF No. 6 at
3), but Beverly still did not state whether the rule actually originated with Saffell himself or
elsewhere.
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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
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.
The Court DISMISSES Beverly’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.
Pursuant to 28 U.S.C. § 1915(a)(3), the Court must also consider whether an appeal by
Beverly 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

8

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 Beverly would not be taken in good faith.
The Court must also address the assessment of the $505 appellate filing fee if Beverly
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 v. Harry, 716 F.3d 944, 951 (6th Cir.
2013). McGore sets out specific procedures for implementing the PLRA, 28 U.S.C. § 1915(a)-(b).
Therefore, Beverly is instructed that if he wishes to take advantage of the installment procedures
for paying the appellate filing fee, 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) of future filings, if any, by Plaintiff, this is the
second dismissal of one of his 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

4

Beverly previously filed Beverly v. Gibson Cnty Corr. Complex, No. 08-1107-JDB/egb
(W.D. Tenn. Jan. 20, 2009) (dismissed for failure to state a claim).
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