Threatt v. Witaker et al

Filing 13

ORDER DISMISSING COMPLAINT AND GRANTING LEAVE TO AMEND. Signed by Judge James D. Todd on 1/23/19. (skc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
MARIO THREATT,
Plaintiff,
VS.
CORPORAL WITAKER, ET AL.,
Defendants.

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No. 1:17-cv-01180-JDT-cgc

ORDER DISMISSING COMPLAINT AND GRANTING LEAVE TO AMEND

On August 7, 2017, Plaintiff Mario Threatt, who is incarcerated at the Henry County
Corrections Facility in Paris, Tennessee, filed a pro se civil complaint pursuant to
42 U.S.C. § 1983 in the U.S. District Court for the Middle District of Tennessee. (ECF No. 1.)
He filed an amended complaint on August 30, 2017, (ECF No. 3), and a second amended complaint
on September 8, 2017, (ECF No. 5).1 On September 14, 2017, Chief U.S. District Judge Waverly
D. Crenshaw granted leave to proceed in forma pauperis, assessed the civil filing fee pursuant to
the Prison Litigation Reform Act (PLRA), 28 U.S.C. §§ 1915(a)–(b), and transferred Threat’s case
to this district, where venue is proper. (ECF No. 7.) The Clerk shall record the Defendants as
Corporal First Name Unknown (FNU) Whitaker and Officer FNU Coffman.2

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The second amended complaint appears to supersede, rather than supplement, the
original and amended complaints.
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Threatt’s second amended complaint also requests relief from Officer Crosser and a
nurse practitioner he refers to as “Mrs. Malinda.” (ECF No. 5 at PageID 24.) However, Threatt
fails to list these two persons as defendants in the second amended complaint. Accordingly,
neither Officer Crosser nor Nurse Malinda are included as defendants in this lawsuit.

Threatt alleges that on July 28, 2017, Corporal Whitaker and Officers Coffman and Crosser
(“the officers”) dragged him by his neck from booking to his cell and threw him into his cell. (ECF
No. 5 at PageID 24.) Threatt says Officer Crosser also kicked him during the dragging. (Id.) The
officers then threw Threatt’s belongings into the cell behind him. (Id.) One of those belongings
was a letter Threatt says he had given Officer Coffman to mail before Threatt was dragged to his
cell. (Id.) Threatt complained of pain in his neck and back from the dragging, and the officers
responded by again dragging Threatt by his neck from his cell back to booking, strapping him to
a chair in a holding cell, and pushing a taser gun into his stomach. (Id.) The officers mocked
Threatt and forced him to remain in the chair for hours. (Id.) A nurse eventually treated Threatt
and x-rayed him for broken bones. (Id.) Threatt sues Corporal Whitaker and Officer Coffman in
only their official capacities and seeks monetary damages. (Id.)
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.

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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)
(affirming dismissal of pro se complaint for failure to comply with “unique pleading requirements”

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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.”).
Thomas’s 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).

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Threatt brings his suit against Corporal Whitaker and Officer Coffman in their official
capacities only. The Court construes those claims as against Henry County. But the complaint
does not state a valid § 1983 claim against Henry County. When a § 1983 claim is made against
a municipality or county, the court must analyze two distinct issues: (1) whether the plaintiff’s
harm was caused by a constitutional violation; and (2) if so, whether the municipality or county is
responsible for that violation. Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120 (1992).
A local government such as a municipality or county “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). 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)). “[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). Threatt does not allege that he
suffered an injury because of an unconstitutional policy or custom of Henry County.

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For this reason, Threatt’s complaint is subject to dismissal in its entirety for failure to state
a claim.
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 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 Threatt should be given
an opportunity to further amend his complaint.
In conclusion, the Court DISMISSES Threatt’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)–(iii) and 1915A(b)(1)–(2).
Leave to amend, however, is GRANTED. Any amendment must be filed within twenty-one (21)
days after the date of this order.
Threatt is advised that any amended complaint will supersede all prior pleadings and must
be complete in itself without reference to the prior pleadings. The amended complaint must be
signed, and 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

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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 Threatt 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.3
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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Threatt has one existing strike under § 1915(g) from Threatt v. Mr. Delanno, No. 1:06cv-01064-JDT-STA (W.D. Tenn. Apr. 18, 2006) (dismissed for failure to state a claim).
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