Parson v. Shelby Co. Dept. of Corr. et al

Filing 17

ORDER DENYING 10 MOTION TO APPOINT COUNSEL; ORDER DENYING 14 MOTION FOR TEMPORARY RESTRAINING ORDER; ORDER OF DISMISSAL; ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH AND ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL. Signed by Judge James D. Todd on 9/14/12. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

DONNY PARSON,
Plaintiff,
vs.
SHELBY COUNTY, et al.,
Defendants.

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No. 11-2771-JDT-cgc

ORDER DENYING MOTION TO APPOINT COUNSEL
(DOCKET ENTRY 10)
ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER
(DOCKET ENTRY 14)
ORDER OF DISMISSAL
ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
AND
ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
On September 7, 2011, Plaintiff Donny Parson, prisoner number 240640, an
inmate at the Shelby County Correctional Center (“SCCC”) in Memphis, Tennessee, filed
a pro se complaint pursuant to 42 U.S.C. § l983, accompanied by a motion seeking leave to
proceed in forma pauperis. (Docket Entry (“D.E.”) 1, D.E. 2.) The Court issued an order on
September 8, 2011, that granted leave to proceed in forma pauperis and assessed the civil
filing fee. (D.E. 3.) The Clerk shall record the defendants as Shelby County,1 Correct Care
Solutions, Dr. Randolf, Patricia Echols, Nurse Practitioner Abston, Nurse Boslierino, Nurse
Florence Riggs, D. Allen, Officer Turner, Officer Simmons, Officer Edwards, Officer Smith,
Officer V. Jones, Officer Lowry, Officer Coleman, Sergeant Young, Sergeant Alexander,

1

Plaintiff named the Shelby County Department of Correction as a
Defendant.
Governmental departments, divisions, and buildings are not suable
entities. Therefore, the Court construes those claims against Shelby County. See
generally Hafer v. Melo, 502 U. S. 21 (1991).

Sergeant Jackson, Sergeant Franklin, Lieutenant Swanson, Sergeant Flowers, Lieutenant
Craig, Director Coleman, and Shelby County Mayor Mark Luttrell.
On March 16, 2012, Plaintiff filed a motion seeking the appointment of
counsel. (D.E. 10.) Pursuant to 28 U.S.C. § 1915(e)(1), “[t]he court may request an attorney
to represent any person unable to afford counsel.” However, “[t]he appointment of counsel
in a civil proceeding is not a constitutional right.” Lanier v. Bryant, 332 F.3d 999, 1006 (6th
Cir. 2003); see also Shepherd v. Wellman, 313 F.3d 963, 970 (6th Cir. 2002) (“[T]he
plaintiffs were not entitled to have counsel appointed because this is a civil lawsuit.”);
Lavado v. Keohane, 992 F.2d 601, 605-06 (6th Cir. 1993) (no constitutional right to counsel
in a civil case); Farmer v. Haas, 990 F.2d 319, 323 (7th Cir. 1993) (“There is no
constitutional or . . . statutory right to counsel in federal civil cases . . . .”). Appointment of
counsel is “‘a privilege that is justified only by exceptional circumstances.’” Lavado, 992
F.2d at 606 (quoting Wahl v. McIver, 773 F.2d 1169, 1174 (11th Cir. 1985)).
In determining whether “exceptional circumstances” exist, courts have
examined “the type of case and the abilities of the plaintiff to represent
himself.” Archie v. Christian, 812 F.2d 250, 253 (5th Cir. 1987); see also
Poindexter v. FBI, 737 F.2d 1173, 1185 (D.C. Cir. 1984). This generally
involves a determination of the “complexity of the factual and legal issues
involved.” Cookish v. Cunningham, 787 F.2d 1, 3 (1st Cir. 1986).
Id. at 606.2 Appointment of counsel is not appropriate when a pro se litigant’s claims are
frivolous or when his chances of success are extremely slim. Id. (citing Mars v. Hanberry,
752 F.2d 254, 256 (6th Cir. 1985)); see also Cleary v. Mukasey, 307 F. App’x 963, 965 (6th
Cir. 2009) (same).3
Plaintiff has not satisfied his burden of demonstrating that appointment of
counsel would be appropriate in this case. Nothing in Plaintiff’s motion distinguishes this
2

A plaintiff is not entitled to an evidentiary hearing on the issue.
Sutton v. Small Bus. Admin., 92 F. App’x 112, 116 (6th Cir. 2003).
3

These factors are important, because § 1915(e)(1) “does not authorize
the federal courts to make coercive appointments of counsel” to represent indigent
civil litigants. Mallard v. United States Dist. Ct., 490 U.S. 296, 310 (1989).

2

case from numerous other cases litigated by pro se prisoners who are untrained in the law.
Furthermore, Plaintiff’s complaint is being dismissed. The motion for appointment of counsel
is DENIED.
On April 16, 2012, Plaintiff filed a motion for a temporary restraining order.
(D.E. 14.) For a temporary restraining order to be issued without written or oral notice to the
adverse party or its attorney, Fed. R. Civ. P. 65 requires a showing that immediate and
irreparable injury, loss, or damage will result to the movant before the adverse party can be
heard in opposition. Fed. R. Civ. P. 65(b)(1)(A). Additionally, the movant, or his attorney,
must “certif[y] in writing any efforts made to give notice and the reasons why it should not
be required.” Fed. R. Civ. P. 65(b)(1)(B).
Parson has not complied with Rule 65(b)(1)(B). The defendants have not yet
been served. Plaintiff has failed to certify any efforts made to give notice to the Defendants
or the reasons why such notice should not be required. Furthermore, Plaintiff’s complaint
is being dismissed. The motion for a temporary restraining order is DENIED.
Plaintiff requested followup medical care for a pre-existing gunshot wound to
his collar bone. On July 8, 2011, Plaintiff was examined by Defendant Nurse Practitioner
Abston. Plaintiff alleges that Abston examined Plaintiff’s left ear, advised him that he had
wax buildup, and advised him that he was running a fever. Plaintiff alleges that he objected
to Abston’s examination because it did not address the problems for which he sought
treatment. Plaintiff alleges that he filed a grievance before returning to his housing unit.
Plaintiff states that a Ms. Beasley responded to his grievance on July 28, 2011, stating that
due to the medical nature of the grievance, it was forwarded to the medical department for
response.
Plaintiff admits that his grievance was answered by Defendant Patricia Echols,
who advised Plaintiff that his issues were addressed according to acceptable standards of care
and that he would be referred to a provider as soon as the referral could be scheduled.
3

On August 12, 2011, Plaintiff was examined by Defendant Dr. Randolf who
prescribed a sling and steroids. Plaintiff was x-rayed the next week. Plaintiff alleges that he
has complained of pain to Defendant Officers D. Allen, Turner, Simmons, Edwards, Smith,
V. Jones, Lowry, Coleman, Sergeants Young, Alexander, Jackson, Franklin, and Lieutenants
Swanson and Craig, but received no medical treatment or pain medication.
Plaintiff alleges that on August 19, 2011, Officer D. Allen and Sergeant
Franklin wrote him up for disobeying orders and refusing a work assignment as retaliation
for filing grievances against Allen and Franklin. Plaintiff alleges that he was found not guilty
on August 25, 2011.
On August 22, 2011, Plaintiff was transported to the Regional Medical
Hospital. An orthopaedic doctor informed Plaintiff that surgery on his collarbone would be
dangerous. Plaintiff received a prescription for Ultrim. Plaintiff alleges that he was not
provided Ultrim or a generic substitute upon his return to the SCCC. Plaintiff complains that
he is in constant pain, his medical visits with Defendant Randolf are constantly rescheduled,
and that medical staff misdiagnosed him. Plaintiff alleges that he appealed to Nurses
Boslierino and Riggs but they failed to address his needs. Plaintiff alleges that he sues
Defendants Director Coleman and Mayor Luttrell because they supervise the Shelby County
Department of Correction.
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)
such relief.

seeks monetary relief from a defendant who is immune from

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,
4

556 U.S. 662, 677-79, 129 S. Ct. 1937, 1949-50, 173 L. Ed. 2d 868 (2009), and in Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555-57, 127 S. Ct. 1955, 1964-66, 167 L. Ed. 2d 929
(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, 129
S. Ct. at 1951) (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, 129 S. Ct. at 1950; see also Twombly, 550 U.S. at 555 n.3, 127 S. Ct. at 1964-65 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. See Neitzke [v.
Williams], 490 U.S. [319,] 325, 109 S. Ct. at 1827 [(1989)]. Any complaint that is legally
frivolous would ipso facto fail to state a claim upon which relief can be granted. See id. at
328-29, 109 S. Ct. 1827.” Hill, 630 F.3d at 470.
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.

5

“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.
As the Sixth Circuit has explained:
Before the recent onslaught of pro se prisoner suits, the Supreme Court
suggested that pro se complaints are to be held to a less stringent standard than
formal pleadings drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 92
S. Ct. 594, 30 L. Ed. 2d 652 (1972) (per curiam). Neither that Court nor other
courts, however, have been willing to abrogate basic pleading essentials in pro
se suits. See, e.g., id. at 521, 92 S. Ct. at 596 (holding petitioner to standards
of Conley v. Gibson); Merritt v. Faulkner, 697 F.2d 761 (7th Cir.) (duty to be
less stringent with pro se complaint does not require court to conjure up
unplead allegations), cert. denied, 464 U.S. 986, 104 S. Ct. 434, 78 L. Ed. 2d
3366 (1983); McDonald v. Hall, 610 F.2d 16 (1st Cir.1979) (same); Jarrell v.
Tisch, 656 F. Supp. 237 (D.D.C. 1987) (pro se plaintiffs should plead with
requisite specificity so as to give defendants notice); Holsey v. Collins, 90
F.R.D. 122 (D. Md. 1981) (even pro se litigants must meet some minimum
standards).
Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989); see also Brown v. Matauszak, No. 092259, 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. Secretary 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.”).
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)

6

committed by a defendant acting under color of state law. Adickes v. S.H. Kress & Co., 398
U.S. 144, 150 (1970).
Plaintiff has sued Shelby County. When a § 1983 claim is made against a
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 Plaintiff’s claim against Shelby 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 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
7

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 County 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,
Civil Action No. 3:06CV-P610-H, 2007 WL 1035007, at *2 (W.D. Ky. Mar. 30, 2007);
Yeackering v. Ankrom, No. 4:05-CV-00018-M, 2005 WL 1877964, at *2 (W.D. Ky. Aug.
5, 2005); Oliver v. City of Memphis, No. 04-2074-B, 2004 WL 3316242, at *4 (W.D. Tenn.
Dec. 2, 2004); cf. Raub v. Correctional Med. Servs., Inc., No. 06-13942, 2008 WL 160611,
at *2 (E.D. Mich. Jan. 15, 2008) (denying motion to dismiss where complaint contained
conclusory allegations of a custom or practice); Cleary v. County of Macomb, No. 06-15505,
2007 WL 2669102, at *20 (E.D. Mich. Sept. 6, 2007) (same); Morningstar v. City of Detroit,
No. 06-11073, 2007 WL 2669156, at *8 (E.D. Mich. Sept. 6, 2007) (same); Chidester v. City
of Memphis, No. 02-2556 MA/A, 2006 WL 1421099, at *3 (W.D. Tenn. June 15, 2005).
The allegations of the complaint fail to identify an official policy or custom which caused
injury to Plaintiff. Instead, it appears that Plaintiff is suing Shelby County because he was
confined in a county institution and the County employed persons who allegedly violated his
rights.
Section 1983 will not support a claim based upon a theory of respondeat
superior alone. Polk County v. Dodson, 454 U.S. 312, 325 (1981); Bellamy v. Bradley, 729
F.2d 416, 421 (6th Cir. 1984). A plaintiff must allege that a defendant official was personally
involved in the unconstitutional activity of a subordinate in order to state a claim against such
a defendant. Dunn v. State of Tennessee, 697 F.2d 121, 128 (6th Cir. 1982). A failure to
supervise, control or train an individual is not actionable “unless the supervisor ‘either
8

encouraged the specific incident of misconduct or in some other way directly participated in
it.’” Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). “At a minimum a plaintiff must
show that the official least implicitly authorized, approved, or knowingly acquiesced in the
unconstitutional conduct of the offending officers.” Hays v. Jefferson Co., Ky, 668 F.2d 869,
874 (6th Cir. 1982).
It is clear that Plaintiff sues Defendant Director Coleman and Defendant
Luttrell because of their supervisory capacities over the SCCC and sues Defendant Correct
Care Solutions because it employees the medical staff.
The participation of Defendant Echols in the investigation, processing or
denying Plaintiff’s grievances cannot constitute sufficient personal involvement to state a
claim of constitutional dimension. Simpson v. Overton, 79 Fed. Appx. 117, 2003 WL
22435653 (6th Cir. 2003); see also Martin v. Harvey, 14 Fed. Appx. 307, 2001 WL 669983,
at *2 (6th Cir. 2001)(“The denial of the grievance is not the same as the denial of a request
to receive medical care.”). Section 1983 liability may not be imposed against a defendant
for “a mere failure to act” based upon information contained in the grievance. See Shehee,
199 F.3d at 300; Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 727-28 (6th Cir. 1996).
The Eighth Amendment to the United States Constitution prohibits cruel and
unusual punishment. 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, 501 U.S. at
298; Williams v. Curtin, 633 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
9

Cir. 2005), or that he has been deprived of the “minimal civilized measure of life’s
necessities,” Wilson, 501 U.S. at 298 (quoting Rhodes v. Chapman, 452 U.S. 337, 347
(1981)); see also Hadix v. Johnson, 367 F.3d 513, 525 (6th Cir. 2004).
The subjective component of an Eighth Amendment claim requires that the
official act with the requisite intent, that is, that he have a “sufficiently culpable state of
mind." Farmer, 511 U.S. at 834; Wilson, 501 U.S. at 297, 302-03. The official's intent must
rise at least to the level of deliberate indifference. Farmer, 511 U.S. at 834; Wilson, 501 U.
S. at 302-03.
Under Estelle v. Gamble, 429 U.S. 97, 104 (1976), “deliberate indifference to
serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of
pain,’... proscribed by the Eighth Amendment.” However, not “every claim by a prisoner that
he has not received adequate medical treatment states a violation of the Eighth Amendment.”
Estelle, 429 U.S. at 105. “In order to state a cognizable claim, a prisoner must allege acts or
omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.
It is only such indifference that can offend ‘evolving standards of decency’ in violation of
the Eighth Amendment.” Id., 429 U.S. at 106.
Within the context of Estelle claims, the objective component requires that the
medical need be sufficiently serious. Hunt v. Reynolds, 974 F.2d 734, 735 (6th Cir. 1992).
“A medical need is serious if it is one that has been diagnosed by a physician as mandating
treatment or one that is so obvious that even a lay person would easily recognize the
necessity for a doctor's attention." Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir.
1980)(quoting Laaman v. Helgemoe, 437 F. Supp. 269, 311 (D.N.H. 1977)).
To make out a claim of an Eighth Amendment Estelle violation, a prisoner
must plead facts showing that “prison authorities have denied reasonable requests for medical
treatment in the face of an obvious need for such attention where the inmate is thereby
exposed to undue suffering or the threat of tangible residual injury." Westlake v. Lucas, 537
10

F.2d 857, 860 (6th Cir. 1976). The Court clarified the meaning of deliberate indifference in
Farmer v. Brennan, as the reckless disregard of a substantial risk of serious harm; mere
negligence will not suffice. Id. 511 U.S. at 835-36. Consequently, allegations of medical
malpractice or negligent diagnosis and treatment fail to state an Eighth Amendment claim
of cruel and unusual punishment. See Estelle, 429 U.S. at 106.
When a prisoner has received some medical attention but disputes the adequacy
of that treatment, the federal courts are reluctant to second-guess the medical judgments of
prison officials and constitutionalize claims which sound in state tort law. Westlake, 537 F.2d
at 860 n. 5. Plaintiff was provided with medical diagnosis and treatment by Defendants Dr.
Randolf, Nurse Practitioner Abston, and Boslierino and Riggs. Even if those medical
personnel were negligent in treating and prescribing medication for Plaintiff, that error would
amount at most to malpractice. “[A] complaint that a physician [or nurse] has been negligent
in treating or failing to treat a medical condition does not state a valid claim of medical
mistreatment under the Eighth Amendment. Medical malpractice does not become a
constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 105-06.
The allegations are insufficient to establish the subjective component of an Eighth
Amendment violation.
Furthermore, although Plaintiff alleges that he complained to Defendants Allen,
Turner, Simmons, Edwards, Smith, V. Jones, Lowry, Coleman, Young, Alexander, Jackson,
Franklin, Swanson, Flowers, and Craig about his pain, he does not allege that the officers
have any control over medical personnel, appointment scheduling, or medical diagnosis and
treatment. Plaintiff was receiving medical care from Correct Care Solutions. His allegations
are insufficient to establish a violation of the Eighth Amendment by the Defendant Officers.
The complaint also does not state a valid claim for retaliation against
Defendants Allen and Franklin. “Retaliation on the basis of a prisoner’s exercise of his First

11

Amendment rights violates the Constitution.” Harbin-Bey v. Rutter, 420 F.3d 571, 579 (6th
Cir. 2005).
A retaliation claim essentially entails three elements: (1) the plaintiff engaged
in protected conduct; (2) an adverse action was taken against the plaintiff that
would deter a person of ordinary firmness from continuing to engage in that
conduct; and (3) there is a causal connection between elements one and
two—that is, the adverse action was motivated at least in part by the plaintiff’s
protected conduct.
Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc); see also Scott v.
Churchill, 377 F.3d 565, 569 (6th Cir. 2004) (same); Smith v. Campbell, 250 F.3d 1032,
1036 (6th Cir. 2001) (same). “If the plaintiff is able to make such a showing, the defendant
then has the burden of showing that the same action would have been taken even absent the
plaintiff’s protected conduct.” Smith, 250 F.3d at 1037.
The filing of a nonfrivolous grievance is protected conduct under the First
Amendment. Thomas v. Eby, 481 F.3d 434, 440 (6th Cir. 2007); Herron v. Harrison, 203
F.3d 410, 415 (6th Cir. 2000) (“An inmate has an undisputed First Amendment right to file
grievances against prison officials on his own behalf.”). A grievance is frivolous if it
complains of conduct that is not legally actionable. Herron, 203 F.3d at 415; see Jackson v.
Kronberg, 111 F. App’x 815, 819 (6th Cir. 2004) (grievance that corrections officer has a
spider-web tattoo that serves as an “Aryan Nation symbol” not grievable so the filing of the
grievance is not protected conduct); Ziegler v. State of Mich., 90 F. App’x 808, 810 (6th Cir.
2004); Henley v. Pitcher, 20 F. App’x 396, 397 (6th Cir. 2001); cf. Smith v. Craven, 61 F.
App’x 159, 162 (6th Cir. 2003) (inmate did not engage in protected conduct by litigating loss
of property claim against prison in state court because such a claim is not encompassed
within an inmate’s First Amendment rights).
Plaintiff alleges that Allen and Franklin filed a disciplinary charge against him
in retaliation for the grievances he filed against them. Plaintiff’s complaint that Officer Allen
and Sergeant Franklin ignored his complaints of pain are not legally actionable for the

12

reasons previously stated. Furthermore, the filing of the disciplinary charge did not deter
Plaintiff from filing further grievances and this lawsuit.
Prisoners have “no constitutionally guaranteed immunity from being falsely
or wrongly accused of conduct,” Freeman v. Rideout, 808 F.2d 949 (2nd Cir. 1986). A claim
for monetary and equitable relief complaining only of procedural defects in a prison
disciplinary hearing which, if established, would imply the invalidity of the punishment
imposed, is not cognizable under § 1983. See Edwards v. Balisok, 520 U.S. 641, 648-89
(1997). Prison disciplinary proceedings give rise to a due process claim only if they result
in the imposition of restrictions which constitute an “atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472,
484 (2005). Plaintiff does not allege any atypical and significant hardship. He was found not
guilty of the offenses.
Therefore, the Court DISMISSES the complaint pursuant to 28 U.S.C. §§
1915(e)(2)(B)(ii) and 1915A. Judgment shall be entered for Defendants.
The Court must also consider whether Plaintiff should be allowed to appeal this
decision in forma pauperis, should he seek to do so. The United States Court of Appeals for
the Sixth Circuit requires that all district courts in the circuit determine, in all cases where
the appellant seeks to proceed in forma pauperis, whether the appeal would be frivolous.
Twenty-eight U.S.C. § 1915(a)(3) provides that “[a]n appeal may not be taken in forma
pauperis if the trial court certifies in writing that it is not taken in good faith.”
The good faith standard is an objective one. Coppedge v. United States, 369
U.S. 438, 445 (1962). The test under 28 U.S.C. § 1915(a) for whether an appeal is taken in
good faith is whether the litigant seeks appellate review of any non-frivolous issue. Id. at
445-46. 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
13

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. It is therefore CERTIFIED,
pursuant to 28 U.S.C. § 1915(a)(3), that any appeal in this matter by Plaintiff would not be
taken in good faith and Plaintiff may not proceed on appeal in forma pauperis.
The final matter to be addressed is the assessment of a filing fee if Plaintiff
appeals the dismissal of this case. In McGore v. Wrigglesworth, 114 F.3d 601, 610-11 (6th
Cir. 1997), the Sixth Circuit set out specific procedures for implementing the PLRA.
Therefore, Plaintiff 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 McGore and 28 U.S.C. § 1915(b).
For analysis under 28 U.S.C. § 1915(g) of future filings, if any, by Plaintiff,
this is the second dismissal4 of one of his cases as frivolous or for failure to state a claim.
This “strike” shall take effect, without further action by the Court, upon expiration of the
time for filing a notice of appeal, the dismissal of any appeal, or the affirmation of the district
court’s ruling on appeal, whichever is later.
IT IS SO ORDERED.

s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

4

See Parson v. Shelby Co., et al., No. 11-2817-JDT-tmp (W.D. Tenn. Sept.
4, 2012), a § 1983 complaint dismissed for failure to state a claim under 28 U.S.C.
§ 1915(e)(2)(B)(ii).

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