Whitson v. Taylor

Filing 8

ORDER DISMISSING COMPLAINT, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE. Signed by Judge James D. Todd on 8/14/18. (mbm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
JAMES Q. WHITSON,
Plaintiff,
VS.
ERICKA TAYLOR,
Defendant.

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No. 18-1062-JDT-cgc

ORDER DISMISSING COMPLAINT,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE
On April 4, 2018, Plaintiff James Q. Whitson, an inmate at the Hardeman County
Correctional Facility (HCCF) in Whiteville, Tennessee, filed a pro se complaint pursuant to 42
U.S.C. § 1983 in the U.S. District Court for the Middle District of Tennessee, along with a motion
to proceed in forma pauperis. (ECF Nos. 1 & 2.) On April 10, 2018, U.S. District Judge Aleta A.
Trauger 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 the case to this
district, where venue is proper. (ECF No. 4.) The Clerk shall record the Defendant as Ericka
Taylor, a sergeant at the HCCF. Whitson appears to sue Taylor only in her official capacity. (ECF
No. 1 at 2.)
In his complaint, Whitson states that on March 6, 2018, at 8:30 a.m., a bright overhead light
came on in his cell after he finished using the bathroom. Defendant Taylor allegedly then came to
his cell, cursing at Whitson and falsely accusing him of exposing himself to her. (Id. at 5.) Taylor

allegedly called Whitson “bitches and hoes” and a lowdown “nigger”. (Id.) Five minutes later,
Taylor allegedly returned to his cell and stood at his door saying “crazy” things; as she walked away
she said, “you a bitch nigga hope you die.” (Id.) Whitson further alleges that even though Taylor
knew he was in the “hole” for refusing a cell assignment because of trouble with other inmates, she
stated, “I’m a send you back to the compound and let them beat yo ass you dum ignorant nigger.”
(Id. at 5-6.) However, Whitson does not allege that Taylor physically harmed him or that he
suffered any physical harm from anyone else as a result of her threats.
Whitson alleges that Taylor’s calling him a “nigger” amounted to discrimination and
defamation of character. (Id. at 5.) He does not specify the relief that he seeks.
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.
2011) (quoting Iqbal, 556 U.S. at 681). “[P]leadings that . . . are no more than conclusions, are not

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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”
and stating “a court cannot ‘create a claim which [a plaintiff] has not spelled out in his pleading’”

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(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.”).
Whitson 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 § 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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Whitson’s claims against the Defendant in her official capacity are construed as claims
against her employer, CoreCivic, which manages the HCCF.1 However, the complaint does not
allege any viable claim against CoreCivic. “A private corporation that performs the traditional state
function of operating a prison acts under color of state law for purposes of § 1983.” Thomas v.
Coble, 55 F. App’x 748, 748 (6th Cir. 2003) (citing Street v. Corr. Corp. of Am., 102 F.3d 810, 814
(6th Cir. 1996)); see also Parsons v. Caruso, 491 F. App’x 597, 609 (6th Cir. 2012) (corporation
that provides medical care to prisoners can be sued under § 1983). The Sixth Circuit has applied
the standards for assessing municipal liability to claims against private corporations that operate
prisons or provide medical care to prisoners. Thomas, 55 F. App’x at 748-49; Street, 102 F.3d at
817-18; Johnson v. Corr. Corp. of Am., 26 F. App’x 386, 388 (6th Cir. 2001). CoreCivic “cannot
be held liable under a theory of respondeat superior.” Braswell v. Corr. Corp. of Am., 419 F. App’x
622, 627 (6th Cir. 2011). Instead, to prevail on a § 1983 claim against CoreCivic, Whitson “must
show that a policy or well-settled custom of the company was the ‘moving force’ behind the alleged
deprivation” of his rights. Id. Whitson does not allege that he suffered an injury because of an
unconstitutional policy of custom of CoreCivic.
To the extent that Whitson actually intended to assert his claims against Taylor in her
individual capacity, the 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 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 v. Seiter, 501 U.S. 294,

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See https://www.tn.gov/content/tn/correction/sp/state-prison-list/hardeman-countycorrectional-facility.html. CoreCivic was formerly known as Corrections Corporation of
America. See www.corecivic.com.
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298 (1991); 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 (internal
quotation marks omitted). See also Hadix v. Johnson, 367 F.3d 513, 525 (6th Cir. 2004) (“To
succeed in an Eighth Amendment challenge, [a prisoner] must establish that . . . a single, identifiable
necessity of civilized human existence is being denied . . . .”). The Constitution “does not mandate
comfortable prisons.” Wilson, 501 U.S. at 298 (internal quotation marks and citation omitted).
“[R]outine discomfort is part of the penalty that criminal offenders pay for their offenses against
society.” Hudson, 503 U.S. at 9 (internal quotation marks and citation omitted). Thus, “extreme
deprivations are required to make out a conditions-of-confinement claim.” Id. at 9.
The verbal slurs allegedly made by Defendant Taylor 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

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(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 Whitson’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, Whitson alleges no physical injury whatsoever.
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

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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 Whitson’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
Whitson 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 Defendant, 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

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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 Whitson would not be taken in good faith.
The Court must also address the assessment of the $505 appellate filing fee if Whitson
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, 716 F.3d at 951. McGore sets out
specific procedures for implementing the PLRA, 28 U.S.C. § 1915(a)-(b). Therefore, Whitson 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 Whitson, 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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