Sims v. McGee et al

Filing 8

ORDER DISMISSING CLAIMS AGAINST DEFENDANTS MCGEE, KORNEGAY, MOORE, JONES, MATTHEWS, PARTEE, STEWART, TUGGLE, MENTAL HEALTH KING, WILLIAMS, MENTAL HEALTH MICKENS, SCOTT, BUFFORD, AND OLDHAM, DENYING MOTION FOR APPOINTMENT OF COUNSEL, AND DIRECTING THAT PROCESS BE ISSUED AND SERVED ON DEFENDANTS LEWIS AND BURLESON, Motions terminated: 7 . Signed by Judge James D. Todd on 9/9/15. (Todd, James)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
_____________________________________________________________________________
MICHAEL SIMS,
Plaintiff,
vs.
MCGEE, et al.,
Defendants.

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No. 2:14-cv-2529-JDT-tmp

ORDER DISMISSING CLAIMS AGAINST DEFENDANTS MCGEE,
KORNEGAY, MOORE, JONES, MATTHEWS, PARTEE,
STEWART, TUGGLE, MENTAL HEALTH KING, WILLIAMS, MENTAL HEALTH
MICKENS, SCOTT, BUFFORD, AND OLDHAM,
DENYING MOTION FOR APPOINTMENT OF COUNSEL,
AND DIRECTING THAT PROCESS BE ISSUED AND SERVED ON
DEFENDANTS LEWIS AND BURLESON

On July 9, 2014, Plaintiff Michael Sims (“Sims”), who is confined in the Shelby County
Criminal Justice Complex (“Jail”) in Memphis, Tennessee, 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.) The
Court granted leave to proceed in forma pauperis on July 14, 2014, assessing the civil filing fee
pursuant to the Prison Litigation Reform Act, 28 U.S.C. §§ 1915(a)-(b). (ECF No. 4.) The Clerk
shall record the defendants as Chief First Name Unknown (“FNU”) McGee, Lieutenant (“Lt.”)
FNU Kornegay, Chief FNU Moore, Sergeant (“Sgt.”) Jones, Detective J. Matthews, Officer
Brian Lewis, Officer FNU Partee, Officer B. Stewart, D.R.T. T. Tuggle, Mental Health FNU
King, Officer FNU Burleson, Sgt. M. Williams, Mental Health FNU Mickens, Officer FNU
Scott, D.R.T. FNU Bufford, and Sheriff William Oldham.
I. THE COMPLAINT

In his complaint Sims alleges that on October 30, 2013, he was physically assaulted by
Defendants Lewis, Burleson, and other unnamed officers. (Ex. A, ECF No 1-1.) Sims states that
he was punched in the face, kicked, stomped in the face, then had his head slammed three times,
after which, he passed out – awaking in the medical hospital. (Id.)
Sims’s complaint also contains allegations of verbal abuse. Sims alleges that Defendants
Stewart, Lewis, Burleson, Partee, Williams, Bufford and Scott threatened to kill him and poison
his food. (Id.) Sims states that he then found glass in his food resulting in his undertaking of a
hunger strike for a month. (Id.) Sims contends that the same aforementioned Defendants also
falsified infraction reports. (Id.) Sims alleges that Defendant Partee spit in his food, which is
why he is currently under a hunger strike, Defendant Williams threw away his mail, and both
Defendants Partee and Williams threatened Sims in order to coax him into assaulting an officer
which would allow them to keep Sims locked up in the hole. (Id.) The complaint further states
that on May 8, 2014, Defendant Williams threatened him with a pocket knife.
Sims further alleges that he notified the following Defendants of the treatment he was
receiving: Tuttle, McGee, Kornegay, Mathews, Mickens, and Jones. (Id.) Sims contends these
Defendants did not remediate the situation. (Id.)
Sims seeks punitive damages in the amount of $1.8 million and the appointment of
counsel.
II ANALYSIS
A.

Screening and Standard
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

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(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 the 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-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

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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 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.”).
B.

§ 1983 Claim

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Sims filed his complaint, attached with exhibits A-F, on the court-supplied form for
actions under 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 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).
1.

Twombly Standard

The complaint contains no factual allegations against Defendants Chief Moore, Mental
Health King, and Sheriff Oldham. Further, the complaint contains no allegations of deprivation
of rights against Defendants Tuttle and Mental Health Mickens whose only actions, allegedly,
were informing supervisors of Sims’s complaints against other defendants. When a complaint
fails to allege any action by a defendant, it necessarily fails to “state a claim for relief that is
plausible on its face.” Twombly, 550 U.S. at 570.
2.

Claims against Defendants McGee, Kornegay, Matthews, and Jones as
Supervisors

It is clear that Sims sues Defendants Chief McGee, Lt. Kornegay, Sgt. Matthews, and
Sgt. Jones because of their supervisory capacities for accusations that they were notified of

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Sims’s complaints, but they allegedly took no steps to rectify the matter. (Ex. A, ECF No 1-1.)
Under 42 U.S.C. § 1983, “[g]overnment officials may not be held liable for the unconstitutional
conduct of their subordinates under a theory of respondeat superior.” Ashcroft v. Iqbal, 556 U.S.
at 676; see also Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984). Thus, “a plaintiff must
plead that each Government-official defendant, through the official’s own official actions,
violated the Constitution.” Iqbal, 556 U.S. at 676.
There must be a showing that the supervisor encouraged the specific instance of
misconduct or in some other way directly participated in it. At a minimum, a §
1983 plaintiff must show that a supervisory official at least implicitly authorized,
approved or knowingly acquiesced in the unconstitutional conduct of the
offending subordinates.
Bellamy, 729 F.2d at 421 (citation omitted). A supervisory official, who is aware of the
unconstitutional conduct of his or her subordinates, but fails to act, generally cannot be held
liable in his or her individual capacity. Grinter v. Knight, 532 F.3d 567, 575-76 (6th Cir. 2008);
Gregory v. City of Louisville, 444 F.3d 725, 751 (6th Cir. 2006); Shehee v. Luttrell, 199 F.3d
295, 300 (6th Cir. 1999); Lillard v. Shelby Cnty. Bd. of Educ., 76 F.3d 716, 727-28 (6th Cir.
1996). The complaint does not allege that Defendants Chief McGee, Lt. Kornegay, Sgt.
Matthews, and Sgt. Jones, through their own actions, violated Sims’s rights.
3.

Claims of Verbal Abuse against Defendants Stewart, Lewis, Burleson, Partee,
Williams, Bufford and Scott

Sims has no claim against Defendants Stewart, Lewis, Burleson, Partee, Williams,
Bufford and Scott for verbal abuse. Allegations of verbal harassment and threats are insufficient
to state a civil rights claim under § 1983. See Ivey v. Wilson, 832 F.2d 950, 954-55 (6th Cir.
1987) (holding verbal abuse does not qualify as punishment under the Eighth Amendment). Just
as the Constitution “does not mandate comfortable prisons,” Wilson v. Seiter, 501 U.S. at 298
(quoting Rhodes v. Chapman, 452 U.S. 337, 349), it does not mandate polite prison guards.

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The law is clear that verbal harassment and threats do not violate the Eighth Amendment.
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 (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); Owens v. Johnson, No. 99-2094, 2000 WL 876766, at
*2 (6th Cir. June 23, 2000) (“The occasional or sporadic use of racial slurs, although
unprofessional and reprehensible, does not rise to a level of constitutional magnitude. The petty
exchanges of insults between a prisoner and guard do not amount to constitutional torts.”)
(citation omitted); Miles v. Tchrozynski, No. 2:09-CV-11192, 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.”) (citation omitted).
Claims against Defendants for verbal abuse by threatening to assault Sims, poison his
food, or throw away his mail do not create violations of Sims’s Eighth Amendment rights. Sims
is clearly getting all mail sent by this court, as he is proceeding in forma pauperis and has filed
additional motions. Additionally, while Sims states that he feared his food was poisoned and spit
into causing him to go on a hunger strike for a month (Ex. A, ECF 1-1.), in his attached exhibit,

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it states that he did not eat for 3 days, but by the fourth day, he ate and continues to eat every
meal meal. (Ex. C, ECF No. 1-3.) These contradictions substantiate that Sims is not facing
actual harm due to the alleged verbal abuse by defendants. 
4.

Eighth Amendment: Cruel and Unusual Punishment

The Supreme Court has held that “the unnecessary and wanton infliction of pain . . .
constitutes cruel and unusual punishment forbidden by the Eighth Amendment.” Whitley v.
Albers, 475 U.S. 312, 319 (1986) (internal quotation marks omitted). The Supreme Court has
applied this standard to uses of force by prison officials, explaining that “the question whether
the measure taken inflicted unnecessary and wanton pain and suffering ultimately turns on
‘whether force was applied in a good faith effort to maintain or restore discipline or maliciously
and sadistically for the very purpose of causing harm.’” Id. at 320-21 (citation omitted); see also
Hudson v. McMillian, 503 U.S. at 6-7. In Hudson, 503 U.S. at 7-9, the Supreme Court held that
a significant physical injury is not required to establish the objective component of an Eighth
Amendment claim. However, the Supreme Court made clear that trivial physical contact does
not violate the Eighth Amendment:
That is not to say that every malevolent touch by a prison guard gives
rise to a federal cause of action. See Johnson v. Glick, 481 F.2d [1028,] 1033
[(2d Cir. 1973)] (“Not every push or shove, even if it may later seem
unnecessary in the peace of a judge’s chamber, violates a prisoner’s
constitutional rights”). The Eighth Amendment’s prohibition of “cruel and
unusual” punishments necessarily excludes from constitutional recognition de
minimis uses of physical force, provided that the use of force is not of a sort
“‘repugnant to the conscience of mankind.” Whitley, 475 U.S., at 327 . . .
(quoting Estelle, supra, 429 U.S., at 106 . . . (internal quotation marks omitted).
Id. at 9-10. For purposes of screening, Sims has alleged a plausible claim for violation of the
Eighth Amendment against Defendants Lewis and Burleson.
C.

Motion to Appoint Counsel

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On November 6, 2014, Sims filed a motion for appointment of counsel. (ECF No. 7.)
Pursuant to 28 U.S.C. § 1915(d), the “court may request an attorney to represent any such person
unable to employ counsel.” However, “[t]here is no constitutional or . . . statutory right to
counsel in federal civil cases.” Farmer v. Haas, 990 F.2d 319, 323 (7th Cir. 1993), and “§
1915(d) does not authorize the federal courts to make coercive appointments of counsel” to
represent indigent civil litigants, Mallard v. United States Dist. Court, 490 U.S. 296, 310 (1989).
Generally, a court will only appoint counsel in exceptional circumstances. Willett v. Wells, 469
F. Supp. 748, 751 (E.D. Tenn. 1977). Although “no comprehensive definition of exceptional
circumstances is practical,” Branch v. Cole, 686 F.2d 264, 266 (5th Cir. 1982), courts resolve
this issue through a fact-specific inquiry. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.
1986). Examining the pleadings and documents in the file, the Court analyzes the merits of the
claims, the complexity of the case, the pro se litigant’s prior efforts to retain counsel, and his
ability to present the claims. Henry v. City of Detroit Manpower Dep’t, 763 F.2d 757, 760 (6th
Cir. 1985); Wiggins v. Sargent, 753 F.2d 663, 668 (8th Cir. 1985).
As a general rule, counsel should be appointed in civil cases only if a litigant has made “a
threshold showing of some likelihood of merit.” Cooper v. A. Sargenti Co., 877 F.2d 170, 174
(2d Cir. 1989). Because Sims has yet to meet the threshold for appointment of counsel, the
motion is DENIED.
III. CONCLUSION
The Court DISMISSES Sims’s complaint against Defendants Chief McGee, Lt.
Kornegay, Chief Moore, Sgt. Jones, Detective J. Matthews, Officer Partee, Officer B. Stewart,
D.R.T. T. Tuggle, Mental Health King, Sgt. M. Williams, Mental Health Mickens, Officer Scott,
D.R.T. FNU Bufford, and Sherriff William Oldham for failure to state a claim on which relief

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can be granted, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). Sims’s claims for
verbal abuse are subject to dismissal. Process will be issued for Defendants Lewis and Burleson
on Sims’s Eighth Amendment claim for the use of excessive force.
It is ORDERED that the Clerk shall issue process for Defendants Lewis and Burleson and
deliver that process to the U.S. Marshal for service. Service shall be made on Defendants Lewis
and Burleson pursuant to Federal Rule of Civil Procedure 4(e) and Tennessee Rules of Civil
Procedure 4.04(1) and (10), either by mail or personally if mail service is not effective. All costs
of service shall by advanced by the United States.
It is further ORDERED that Sims shall serve a copy of every subsequent document he
files in this cause on the attorneys for Defendants Lewis and Burleson or on any unrepresented
Defendant. Sims shall make a certificate of service on every document filed. Sims shall
familiarize himself with Federal Rules of Civil Procedure and this Court’s Local Rules.1
Sims shall promptly notify the Clerk of any change of address or extended absence.
Failure to comply with these requirements, or any other order of the Court may result in the
dismissal of this case without further notice.
IT IS SO ORDERED.
_s/James D. Todd_______________
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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A copy of the Local Rules may be obtained from the Clerk. The Local Rules are also
available on the Court’s website at www.tnwd.courts.gov/pdf/content/LocalRules.pdf.

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