Beverly v. Gibson County Correctional Complex
Filing
5
ORDER DISMISSING CASE, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH, DENYING LEAVE TO APPEAL IN FORMA PAUPERIS AND NOTIFYING PLAINTIFF OF RESTRICTIONS UNDER 28 U.S.C. § 1915(g). Signed by Judge James D. Todd on 8/14/18. (skc)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
GENGHIS BEVERLY,
Plaintiff,
VS.
GIBSON COUNTY, ET AL.,
Defendants.
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No. 17-1184-JDT-cgc
ORDER DISMISSING CASE,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH,
DENYING LEAVE TO APPEAL IN FORMA PAUPERIS AND
NOTIFYING PLAINTIFF OF RESTRICTIONS UNDER 28 U.S.C. § 1915(g)
On September 22, 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 September 25, 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 County2 and Captain Kelly.
The complaint alleges that on August 31, 2017, after his crew returned from work, Beverly
and several other inmates were taken to the nurse’s station where Defendant Kelly and the nurse
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 the claims against the Gibson County Correctional Complex as
claims against Gibson County.
conducted drug screens. (ECF No. 1 at 2.) Beverly and the other inmates gave urine samples and
were taken to a holding cell; when they asked to see the results of their drug screens, the request
was denied. (Id.) Approximately an hour later, Defendant Kelly told Beverly and two other
inmates they had failed their drug screens. (Id. at 2-3.) They were taken for x-rays to determine
if they had drugs in their rectum. (Id. at 4.) Beverly repeatedly asked to see the results of his drug
screen, but each request was denied. (Id.) He alleges that as a state inmate, he had the right to
witness his drug screen and to see his results. (Id.) Beverly states that if he failed the drug screen
he should have been required to sign for it, and the sample should then have been sent to a
laboratory for further testing. (Id.) He alleges that he does not believe he failed the drug screen
but that he eventually lost his prison job and his good time as a result. (Id.) All of his grievances
and complaints to Defendant Kelly and other Jail officials have gone unanswered. (Id.) Beverly
seeks monetary compensation and for the Jail to “start abiding by the state rules and regulations if
they are going to house state inmates.” (Id. at 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 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 well-
2
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 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
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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
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.
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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).
Beverly sues the Gibson County Correctional Complex, which is a claim against 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. Collins v. City of Harker Heights,
Tex., 503 U.S. 115, 120 (1992). The second issue is dispositive of Beverly’s claims against Gibson
County.
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
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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 & 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 does not allege that he suffered
an injury because of an unconstitutional policy or custom of Gibson County.
Beverly’s allegations that as a state inmate he was entitled to see the results of his drug
screen and have it sent to a laboratory for further testing do not state a claim, as the violation of a
prison regulation is not actionable under § 1983. See Storm v. Swiger, No. 4:07 CV 2387, 2007
WL 3171491, at *3 (N.D. Ohio Oct. 29, 2007) (citing Levine v. Torvik, 986 F.2d 1506, 1515 (6th
Cir. 1993), overruled in part on other grounds by Thompson v. Keohane, 516 U.S. 99, 111 (1995)).
See Storm v. Swiger, No. 4:07 CV 2387, 2007 WL 3171491, at *3 (N.D. Ohio Oct. 29, 2007)
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(citing Levine v. Torvik, 986 F.2d 1506, 1515 (6th Cir. 1993), overruled in part on other grounds
by Thompson v. Keohane, 516 U.S. 99, 111 (1995)).3
The Court construes Beverly’s allegation that he lost good time credits as a result of the
drug screen as an attempt to state a Fourteenth Amendment procedural due process claim, which
depends upon the existence of a constitutionally cognizable liberty or property interest with which
the state has interfered. Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989); Pusey
v. City of Youngstown, 11 F.3d 652, 656 (6th Cir. 1993). The loss of good time credits imposed
as punishment for a disciplinary infraction generally will implicate a liberty interest. See Guile v.
Ball, 521 F. App’x 542, 544 (6th Cir. 2013) (citing Wolff v. McDonnell, 418 U.S. 539, 558 (1974)).
In Wolff, the Supreme Court set out the minimum due process that must be afforded to a prisoner
charged with a disciplinary offense is faced with the loss of good time credits.4
In this case, Beverly fails to state a due process claim because he alleges only that he lost
good time credits and that he believes he did not really fail the drug screen. He does not allege
that he was denied a hearing or that any hearing provided did not comport with the requirements
of due process. He appears to contend only that the wrong result was reached. A claim that a
disciplinary conviction is not supported by sufficient evidence may not be brought under § 1983
3
In Levine, 986 F.2d at 1515, a habeas case, the Court of Appeals stated that “[a] state
cannot be said to have a federal due process obligation to follow all of its procedures; such a
system would result in the constitutionalizing of every state rule, and would not be
administrable.”
4
The Supreme Court held that, where a prisoner is charged with a disciplinary
offense that may result in loss of good time credit, due process requires (i) written notice
of the charges at least twenty-four hours prior to the hearing, 418 U.S. at 563-64; (ii) the
opportunity to “call witnesses and present documentary evidence in his defense when
permitting him to do so will not be unduly hazardous to institutional safety or
correctional goals,” id. at 566; and (iii) a written statement by the factfinders as to the
evidence relied on and reasons for the disciplinary action, id. at 564.
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unless the disciplinary conviction is first overturned, vacated or reversed. Muhammad v. Close,
540 U.S. 749, 750-51 (2004) (per curiam); Edwards v. Balisok, 520 U.S. 641, 648 (1997) (“We
conclude, therefore, that respondent’s claim for declaratory relief and money damages, based on
allegations of deceit and bias on the part of the decisionmaker that necessarily imply the invalidity
of the punishment imposed, is not cognizable under § 1983.”); Williams v. Wilkinson, 51 F. App’x
553, 557-58 (6th Cir. 2002).
For 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., 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
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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
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
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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.
Finally, for analysis under 28 U.S.C. § 1915(g) of future filings, if any, by Beverly, this is
the third dismissal of one of his cases as frivolous or for failure to state a claim.5 This “strike”
shall take effect when judgment is entered. Coleman v. Tollefson, 135 S. Ct. 1759, 1763-64 (2015).
Section 1915(g) provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil
action or proceeding under this section if the prisoner has, on 3 or more prior
occasions, while incarcerated or detained in any facility, brought an action or
appeal in a court of the United States that was dismissed on the ground that it is
frivolous, malicious, or fails to state a claim upon which relief may be granted,
unless the prisoner is under imminent danger of serious physical injury.
28 U.S.C. § 1915(g). Consequently, Beverly is warned that he will be barred from filing any
further actions in forma pauperis while he is a prisoner within the meaning of 28 U.S.C. § 1915(h)
unless he is in imminent danger of serious physical injury. Under those circumstances, if any civil
action filed by Beverly is not accompanied either by the civil filing fee or by allegations sufficient
to show that, at the time of filing the action, he is in imminent danger of serious physical injury,
the complaint will be filed, but Beverly will be required to remit the full civil filing fee. If he fails
to do so, the case will be dismissed, and the filing fee will be assessed from his inmate trust
account.
The Clerk is directed to prepare a judgment.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE
5
Beverly previously filed Beverly v. Gibson Cnty., No. 7-1160-JDT-cgc (W.D. Tenn.
Aug. 13, 2018) (dismissed for failure to state a claim); and 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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