Moss v. Perry et al

Filing 9

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 5/29/19. (mbm)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
ZAKKAWANDA MOSS,
Plaintiff,
VS.
GRADY PERRY, ET AL.,
Defendants.

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No. 1:18-cv-1073-JDT-cgc

ORDER DISMISSING COMPLAINT,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE

On April 23, 2018, Plaintiff Zakkawanda Moss, who is presently incarcerated at the
Morgan County Correctional Complex in Wartburg, Tennessee, filed a pro se complaint
pursuant to 42 U.S.C. § 1983. (ECF Nos. 1.) Moss’s complaint addresses events that
allegedly occurred while Moss previously was confined at the Hardeman County
Correctional Facility (HCCF) in Whiteville, Tennessee. (Id. at PageID 3.) After Moss
complied with the Prison Litigation Reform Act (PLRA), 28 U.S.C. §§ 1915(a)-(b), the
Court issued an order on May 4, 2018, granting leave to proceed in forma pauperis and
assessing the civil filing fee pursuant to the PLRA. (ECF No. 5). The Clerk shall record
the Defendants as Grady Perry, the former Warden of the HCCF; B. Ponds, Chief of
Security; C. Patton; D. Yeager, TDOC Liaison; D. Robertson, Unit Manager; N. Martin,

Corrections Officer (C/O); Kelsey Gates, Internal Affairs; and Lieutenant First Name
Unknown (FNU) Topper.
Moss alleges that on March 22, 2018, Defendant Gates “detained” him and four
other inmates in a cell to videotape them answering questions about an alleged fight. (ECF
No. 1 at PageID 5.) Inmate D. Prescott said that he had been assaulted, and the inmates
were subsequently arrested and placed into segregation. (Id.) About a week later, Moss
received a disciplinary write-up for fighting with Prescott, and C/O Martin and a sergeant
arrived to move him to a different cell where Prescott was located. (Id. at PageID 5-6.)
When Moss arrived there, C/O Martin removed Moss’s handcuffs, and he and Prescott
began to fight. (Id. at PageID 6.) Moss alleges he injured his hand in the fight, after which
he and Prescott were “sprayed with mase [sic] and taken to medical.” (Id.)
Moss requested treatment for his injured hand, and eventually a nurse came to
examine his hands and noted they were swollen. (Id.) Unnamed officers later allegedly
complained that inmates “were turning in paperwork” and stated that they “would like to
see to it that that shit stopped.” (Id.) After hearing those comments, Moss refused to go
with officers who arrived at his cell to take him to medical. (Id.) Moss later complained
to Chief Ponds about his disciplinary report for his fight with Prescott. (Id.) Chief Ponds
said he would “make it go away.” (Id. at PageID 7.)
At a hearing on the disciplinary report, the hearing officer (who Moss has not named
as a Defendant) asked Moss if he wanted to waive his right to call witnesses, to which Moss
replied “No.” (Id.) The hearing officer did not allow into evidence a statement by Prescott
about who he was fighting but marked on a sheet that Moss both did and did not waive his
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right to call witnesses. (Id.) The hearing officer did allow into evidence Defendant
Robertson’s statement that she did not see a fight but saw camera footage showing Prescott
and Moss entering a cell together and presumed they were fighting. (Id.) Robertson also
testified that she did not know whether Moss or Prescott was in a gang. (Id. at PageID 8.)
Moss alleges that he was found guilty of fighting as a result of Robertson’s testimony. (Id.
at PageID 7-8.) Moss alleges that Liaison Yeager “was present” at the hearing and
allegedly failed to note that Moss and Prescott were incompatible to be housed together.
(Id. at PageID 8-9.)
After the hearing, Moss was released from segregation and placed in D-pod. (Id. at
PageID 8.) Prescott, who was housed in a neighboring cell, allegedly threatened Moss to
leave D-pod. (Id.) Moss alleges that, “shortly after” the exchange, he and Prescott “both
stabbed one another.” (Id.) Lieutenant Topper later informed Moss that Chief Ponds was
able to “pull some strings” and have Moss’s disciplinary report dismissed. (Id.) Topper
also told Moss that his shoes had been thrown away after he and Prescott stabbed one
another but allegedly refused to fill out paperwork to allow Moss to obtain a new pair.
(Id. at PageID 9.)
Moss seeks removal of the write-ups from his disciplinary file, an order that HCCF
“put in place something to keep things like this from happening,” and unspecified financial
compensation. (Id. at PageID 5.)
The Court is required to screen prisoner complaints and to dismiss any complaint,
or any portion thereof, if the complaintC

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(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). The Court
accepts the complaint’s “well-pleaded” factual allegations as true and then determines
whether the allegations “plausibly suggest an entitlement to relief.’” Williams v. Curtin,
631 F.3d 380, 383 (6th Cir. 2011) (quoting Iqbal, 556 U.S. at 681). Conclusory allegations
“are not entitled to the assumption of truth,” and legal conclusions “must be supported by
factual allegations.” Iqbal, 556 U.S. at 679. Although a complaint need only contain “a
short and plain statement of the claim showing that the pleader is entitled to relief,” Fed.
R. Civ. P. 8(a)(2), Rule 8 nevertheless requires factual allegations to make a “‘showing,’
rather than a blanket assertion, of entitlement to relief.” Twombly, 550 U.S. at 555 n.3.
“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
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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))).
Moss filed his complaint 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).
To the extent Moss intends to sue the Defendants in their official capacities, his
claims are against CoreCivic, which manages HCCF.1

“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

1

See https://www.tn.gov/correction/sp/state-prison-list/hardeman-county-correctionalfacility.html.
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Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996)). The Sixth Circuit has
applied the standards for assessing municipal liability to claims against private corporations
that operate prisons or provide medical care or food services to prisoners. Id. 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); see also Eads v. State of Tenn., No. 1:18-cv-00042, 2018 WL 4283030, at *9 (M.D.
Tenn. Sept. 7, 2018). To prevail on a § 1983 claim against CoreCivic, Moss “must show
that a policy or well-settled custom of the company was the ‘moving force’ behind the
alleged deprivation” of his rights. Braswell v. Corr. Corp. of Am., 419 F. App’x 622, 627
(6th Cir. 2011). Moss, however, has not alleged that a policy or custom of CoreCivic was
the “moving force” behind the alleged violation of his constitutional rights. He therefore
fails to state a claim against CoreCivic or any Defendant in his or her official capacity.
Moss’s complaint contains no allegations against Defendants Perry or Patton. His
only allegation against Defendant Martin is that he was one of two officers who escorted
Moss to another cell after the initial fight with Prescott. When a complaint fails to allege
any action wrongdoing by a Defendant, it necessarily fails to “state a claim for relief that
is plausible on its face.” Twombly, 550 U.S. at 570.
The gravamen of Moss’s complaint involves the disciplinary charges and hearing.
He alleges that Defendant Robertson’s testimony is the reason he was found guilty of the
charge and that it should not have been allowed at the hearing. Prison disciplinary hearings
trigger due process rights when they may result in the forfeiture of good-time credits. Wolff
v. McDonnell, 418 U.S. 539, 558 (1974). In that case, the prisoner is entitled to advance
written notice of the charges, the opportunity to “call witnesses and present documentary
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evidence in his defense when permitting him to do so will not be unduly hazardous to
institutional safety or correctional goals,” and “a written statement of . . . the evidence
relied upon and the reasons for the disciplinary action taken. Id. at 563-66.
Prison disciplinary hearings, however, “are not criminal proceedings” and do not
confer on the prisoner the same rights conferred onto a defendant. Baxter v. Palmigiano,
425 U.S. 308, 315 (1976); Wolff, 418 U.S. at 556. For example, the conclusion of a
disciplinary hearing that results in the loss of good time need be supported by only “some
evidence in the record.” Superintendent, Massachusetts Corr. Inst., Walpole v. Hill, 472
U.S. 445, 454 (1985). An inmate has no right not to be charged with or convicted of prison
disciplinary offenses, see Wolff, 418 U.S. at 564-71, or to be free from segregation,
see Sandin v. Conner, 515 U.S. 472, 486-87 (1995).
Moss does not state a due process claim related to his disciplinary hearing. He does
not allege that he was at risk of losing good-time credits as a result of the hearing; therefore,
he was not entitled to any due process protections. See Vick v. Core Civic, 329 F. Supp.
3d 426, 455 (M.D. Tenn. 2018) (citing Sandin, 515 U.S. at 484, 486-87). Even if he was,
he does not allege that he was denied adequate notice, prohibited from calling witnesses or
presenting documents in his defense, or denied reasons for the disciplinary action.2
Furthermore, Moss asserts no basis for concluding that Defendant Robertson’s testimony

2

Though Moss alleges the hearing officer incorrectly documented that he had (and had
not) waived his right to call witnesses, he does not allege that he actually had any witnesses he
wished to call at the hearing or that the misdocumentation affected the outcome of the hearing.
See Vick, 329 F. Supp. 3d at 455.
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should not have been allowed at his disciplinary hearing. He also alleges that Chief Ponds
apparently had the disciplinary charges dismissed. Moss suggests he wishes to challenge
“the misconduct of staff” related to the charges. (ECF No. 1 at PageID 9.) Moss, however,
does not specify who those staff members are or what their alleged misconduct was. In
any event, Moss has no due process right to be free of false disciplinary charges.
See Upshaw v. Jones, No. 14-2534-JDT-TMP, 2015 WL 348626, at *4 (W.D. Tenn. Jan.
26, 2015) (citing Person v. Campbell, 182 F.3d 918, 1999 WL 454819, at *1 (6th Cir. June
21, 1999) (unpublished)). Moss, therefore, fails to state a claim related to his disciplinary
charges or hearing.
Moss alleges that Defendant Gates videotaped Moss and four other inmates
discussing whether they were fighting. However, he does not state the basis for a
constitutional violation from merely being videotaped during that conversation. If Moss
intends this allegation to be part of his procedural due process claim, he still has no claim.
Even if he was facing the loss of good time with regard to the disciplinary charge, Moss
does not allege that the tape contained exculpatory evidence and that he requested and was
denied access to the tape at his disciplinary hearing.
Moss also alleges that Defendant Yeager failed to note in Moss’s file that he and
inmate Prescott were incompatible to be housed together. Moss does not allege that Yeager
intentionally omitted the incompatibility note in Moss’s file, an allegation which could
raise a claim of deliberate indifference under the Eighth Amendment. See Hugueley v.
Haslam, No. 3:16-CV-02885, 2017 WL 194288, at *5 (M.D. Tenn. Jan. 18, 2017). His

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allegation at most asserts a violation of TDOC policy,3 which does not rise to the level of
a constitutional violation. Laney v. Farley, 501 F.3d 577, 581 n.2 (6th Cir. 2007).
Moss alleges that Lieutenant Topper refused to fill out paperwork to allow Moss to
get a replacement pair of shoes. He does not specify how long he went without shoes, that
the shoes were medically necessary, or that he suffered any injury from not having shoes.
At most, his allegations suggest Defendant Topper was negligent in not allowing Moss to
receive another pair of shoes. That allegation does not state a claim under § 1983.
See Kinard v. May, 885 F.2d 871, 1989 WL 109444, at *1 (6th Cir. Sept. 22, 1989)
(unpublished) (affirming dismissal of inmate’s frivolous suit alleging, at most, that
defendants were negligent in not supplying him with another pair of shoes).
To the extent Moss seeks injunctive relief, his claim is moot because he is no longer
at HCCF. Moore v. Curtis, 68 F. App’x 561, 562 (6th Cir. 2003) (claims for declaratory
and injunctive relief against prison staff moot when inmate transferred to another facility);
Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996) (same).
For all of the foregoing reasons, Moss’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

3

See TDOC Administrative Policies and Procedures, Index #404.09, available at
https://www.tn.gov/content/dam/tn/correction/documents/404-09.pdf.
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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. 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.
In conclusion, the Court DISMISSES Moss’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 Moss 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 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 Moss would not be taken in good
faith.
The Court must also address the assessment of the $505 appellate filing fee if Moss
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
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at 951. McGore sets out specific procedures for implementing the PLRA, §§ 1915(a)-(b).
Therefore, Moss 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 Moss, 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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