Upshaw v. Jones et al

Filing 7

ORDER DISMISSING COMPLAINT WITHOUT PREJUDICE AND GRANTING LEAVE TO AMEND. Any amended complaint must be filed within twenty-eight (28) days after the date of this order. Signed by Judge James D. Todd on 12/5/14. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
MICHAEL G. UPSHAW,
Plaintiff,
VS.
BRENDA JONES, ET AL.,
Defendants.

)
)
)
)
)
)
)
)
)

No. 14-2534-JDT-tmp

ORDER DISMISSING COMPLAINT WITHOUT PREJUDICE
AND GRANTING LEAVE TO AMEND

On July 11, 2014, Plaintiff Michael G. Upshaw, an inmate in the custody of the
Tennessee Department of Correction (“TDOC”) at the West Tennessee State Penitentiary in
Henning, Tennessee, filed a pro se complaint pursuant to 42 U.S.C. § 1983, accompanied by
a motion seeking leave to proceed in forma pauperis. (ECF Nos. 1 & 2.) In an order issued
July 14, 2014, 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 former WTSP Warden Brenda Jones,
Sergeant Dustin Chumbly, and Lieutenant Matthew Hayles. Each Defendant is sued in his
or her individual and official capacities. (ECF No. 1 at 1.)
The factual allegations of the complaint are as follows:
On 12/19/13 Ofc./Lt. Matthew Hayles seized Plaintiff of his liberty without
probably cause or due process of law. The Plaintiff was placed in solitary

confinement against his will for a lengthy amount of time. Lt. Matthew
Hayles refused to properly investigate crime before he charged Plaintiff with
misconduct.
The Plaintiff informed disciplinary chair person Sgt. Dustin Chumbly that the
day of this crime and time, he was in the kitchen and the inmates that was
involve, gave statements under oath stating Plaintiff did not participate in
incident #01064484.
Sgt. Chumbly convicted the inmate in callous of Plaintiff’s rights.
Wareden Brenda Jones knows of my claim stating my rights being violated,
but the Warden is acting with deliberate indifference towards Plaintiff’s
constitutional rights.
(Id. at 4-5.) Plaintiff seeks compensatory and punitive damages. (Id. at 6.)
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, 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.

2

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 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

3

(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’” (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.”).

4

To state a claim under 42 U.S.C. § 1983,1 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).
Defendants are employed by the TDOC. “[A] suit against a state official in his or her
official capacity is not a suit against the official but rather is a suit against the official’s
office. As such, it is no different from a suit against the State itself.” Will v. Mich. Dep’t of
State Police, 491 U.S. 58, 71 (1989) (citation omitted). Any claims against Defendants in
their official capacities is asserted against the State of Tennessee.
The Eleventh Amendment to the United States Constitution provides that “[t]he
Judicial power of the United States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United States by Citizens of another
State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. The
Eleventh Amendment has been construed to prohibit citizens from suing their own states in
federal court. Welch v. Tex. Dep’t of Highways & Pub. Transp., 483 U.S. 468, 472 (1987);
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Employees of Dep’t
of Pub. Health & Welfare v. Mo. Dep’t of Pub. Health & Welfare, 411 U.S. 279, 280 (1973);
1

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.

5

see also Va. Office for Protection & Advocacy v. Stewart, 131 S. Ct. 1632, 1638 (2011) (“A
State may waive its sovereign immunity at its pleasure, and in some circumstances Congress
may abrogate it by appropriate legislation. But absent waiver or valid abrogation, federal
courts may not entertain a private person’s suit against a State.” (citations omitted)). By its
terms, the Eleventh Amendment bars all suits, regardless of the relief sought. Pennhurst, 465
U.S. at 100-01. Tennessee has not waived its sovereign immunity. Tenn. Code Ann.
§ 20-13-102(a). Moreover, a state is not a person within the meaning of 42 U.S.C. § 1983.
Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 613, 617 (2002); Will, 491 U.S.
at 71. Therefore, the Court DISMISSES Plaintiff’s claims against Defendants in their official
capacities pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii)-(iii) and 1915A(b)(1)-(2).
The allegations of Plaintiff’s complaint are too vague to plausibly suggest an
entitlement to relief. The complaint does not identify the nature of the disciplinary offense
that Plaintiff was convicted of violating and does not state the punishment that was imposed,
including any loss of good time credit. The length of time Plaintiff spent in segregation is
not specified. The complaint also does not describe any action taken by Defendant Jones or
state what role she had, if any, in Plaintiff’s disciplinary conviction.
Defendant Jones cannot be held liable as a supervisor. 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

6

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 her subordinates, but fails to act, generally cannot be held liable
in 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).
A failure to take corrective action in response to an inmate grievance or complaint does not
supply the necessary personal involvement for § 1983 liability. See George v. Smith, 507
F.3d 605, 609-10 (7th Cir. 2007) (“Ruling against a prisoner on an administrative complaint
does not cause or contribute to the [constitutional] violation. A guard who stands and
watches while another guard beats a prisoner violates the Constitution; a guard who rejects
an administrative complaint about a completed act of misconduct does not.”). The allegation
that Jones is aware of Plaintiff’s allegations but failed to take action is insufficient to
establish liability under 42 U.S.C. § 1983.
The allegation that Defendant Hayles seized Plaintiff without probable cause or due
process appears to mean that he charged Plaintiff with an unspecified disciplinary offense
and assigned him to segregation pending a hearing on that charge. An inmate ordinarily
7

cannot sue for the issuance of a false disciplinary charge where there is a fair hearing on that
charge. Jackson v. Madery, 158 F. App’x 656, 662-63 (6th Cir. 2005) (“False accusations
of misconduct filed against an inmate do not constitute a deprivation of constitutional rights
where the charges are adjudicated in a fair hearing. . . . Jackson was provided due process
hearings for the misconduct charges; as such, his due process rights were not violated and
he may not maintain a § 1983 claim for the allegedly false misconduct reports.” (citations
omitted)); see also McMillan v. Fielding, 136 F. App’x 818, 820 (6th Cir. 2005)
(“McMillan’s complaint with regard to the false charges fails to state a Fourteenth
Amendment claim. . . . Even if McMillan had a liberty interest in remaining free from lock
up, loss of package privileges, and a fine, his due process right was fulfilled by his
disciplinary hearing.”); Cromer v. Dominguez, 103 F. App’x 570, 573 (6th Cir. 2004) (“False
accusations of misconduct filed against an inmate do not constitute a deprivation of
constitutional rights where the charges are subsequently adjudicated in a fair hearing.”);
Person v. Campbell, No. 98-5638, 1999 WL 454819, at *1 (6th Cir. June 21, 1999) (“[T]he
filing of false disciplinary charges against an inmate does not constitution a constitutional
violation redressable under § 1983.”); Jones v. McKinney, No. 97-6424, 1998 WL 940242,
at *1 (6th Cir. Dec. 23, 1998) (“McKinney did not violate Jones’s constitutional rights, even
if the disciplinary report was false, because a prisoner has no constitutionally protected
immunity from being wrongly accused.”); Mujihad v. Harrison, No. 97-6366, 1998 WL
940243, at *2 (6th Cir. Dec. 23, 1998) (“[T]he filing of false disciplinary charges against an
inmate does not constitute a constitutional violation redressable pursuant to § 1983.”). Here,
8

Plaintiff makes no complaint about the procedures employed during his disciplinary hearing.
His only complaint is that he was convicted despite substantial evidence of his innocence.
Those allegations do not suffice to resurrect Plaintiff’s claim against Hayles.
Plaintiff also has no claim against Hayles for failing to make a sufficient investigation
before issuing the write-up. Even in the criminal context, there is no constitutional right to
an official investigation of alleged misconduct. See, e.g., Town of Castle Rock, Colo. v.
Gonzales, 545 U.S. 748, 768 (2005) (“[T]he benefit that a third party may receive from
having someone else arrested for a crime generally does not trigger protections under the Due
Process Clause, neither in its procedural nor in its ‘substantive’ manifestations.”); Mitchell
v. McNeil, 487 F.3d 374 (6th Cir. 2007) (dismissing due process claim based on failure to
investigate); Smith v. Jackson, No. 93-3052, 1993 WL 241816 (6th Cir. July 2, 1993)
(affirming dismissal of claim that police and social worker failed to investigate alleged sexual
abuse of child); Parkhurst v. Tabor, Civ. No. 07-2068, 2007 WL 3227205 (W.D. Ark. Oct.
30, 2007); Joy v. City of Dayton, No. C-3-90-132, 1991 WL 1092505, at *8 (S.D. Ohio June
28, 1991) (“One does not have a constitutional right to have a police investigation conducted
in a particular manner, or to have one conducted at all.”); Doe v. Mayor & City Council of
Pokomoke City, 745 F. Supp. 1137, 1139 (D. Md. 1990); Crawford v. Lane, No. 85 C 10510,
1988 WL 23799, at *1 (N.D. Ill. Mar. 9, 1988) (“Inadequate investigation of an incident by
government officials does not give rise to a cause of action for denial of civil rights.”);
Sellner v. Panagoulis, 565 F. Supp. 238, 252 (D. Md. 1982), aff’d mem., 796 F.2d 474 (4th
Cir. 1986).
9

This conclusion is not altered by the fact that Plaintiff was assigned to segregation
pending a disciplinary hearing. An inmate’s right to due process arises only if a restriction
implicates a constitutionally protected liberty interest. Wilkinson v. Austin, 545 U.S. 209,
221 (2005). In general, an inmate does not have a liberty interest in a particular security
classification or in freedom from administrative segregation. Olim v. Wakinekona, 461 U.S.
238, 245 (1983); Meachum v. Fano, 427 U.S. 215, 224-25 (1976); Montanye v. Haymes, 427
U.S. 236, 243 (1976); Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976); Newell v. Brown, 981
F.2d 880, 883 (6th Cir. 1992); Beard v. Livesay, 798 F.2d 874, 876 (6th Cir. 1986). The
complaint does not allege that the conditions experienced by Plaintiff in segregation imposed
an atypical and significant hardship sufficient to violate due process. See Sandin v. Conner,
515 U.S. 472, 484, 486 (1995). Courts have rejected due process claims arising from
confinement to segregation for far longer than that experienced by Plaintiff. See Harbin-Bey
v. Rutter, 420 F.3d 571,576-77 (6th Cir. 2005) (designation as member of a Security Threat
Group and permanent restrictions imposed as a result of that designation not an atypical and
significant hardship in relation to the ordinary incidents of prison life); Sarmiento v.
Hemingway, 93 F. App’x 65, 66 (6th Cir. 2004) (“Generally, unless placement in disciplinary
confinement is accompanied by a withdrawal of good time credits or is for a significant
period of time that presents an unusual hardship on the inmate, no interest to remain free of
disciplinary confinement will be found in the case.”); Williams v. Wilkinson, 51 F. App’x
553, 556-57 (6th Cir. 2002); see also Jones v. Baker, 155 F.3d 810 (6th Cir. 1998)

10

(administrative segregation); Mackey v. Dyke, 111 F.3d 460 (6th Cir. 1997); Bruggeman v.
Paxton, No. 00-3917, 2001 WL 861678, at *1 (6th Cir. June 30, 2001).
The allegations of the complaint are insufficient to state a claim against Defendant
Chumbly for violating Plaintiff’s right to due process in his disciplinary hearing. In Wolff
v. McDonnell, 418 U.S. 539 (1974), 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, id. 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. Moreover, “revocation of good time does
not comport with ‘the minimum requirements of procedural due process’ . . . unless the
findings of the prison disciplinary board are supported by some evidence in the record.”
Superintendent, Mass. Corr. Instit., Walpole v. Hill, 472 U.S. 445, 454 (1985); see also id.
at 455-57. These protections are required only when a liberty interest is at stake. See, e.g.,
Sandin, 515 U.S. at 484, 486-87. “A prison disciplinary proceeding does not give rise to a
protected liberty interest unless the restrictions imposed constitute an ‘atypical and
significant hardship on the inmate in relation to the ordinary incidents of prison life.’”
McMillan, 136 F. App’x at 820 (6th Cir. 2005) (quoting Sandin, 515 U.S. at 484).
Plaintiff’s allegations against Defendant Chumbly are deficient for several reasons.
The complaint sets forth no facts demonstrating that Plaintiff had a liberty interest in the
11

outcome of the disciplinary hearing, such as a loss of sentence credit. Even if there were a
liberty interest, there is no allegation that the disciplinary hearing was not conducted in
accordance with the procedures required by Wolff. Although Plaintiff alleges that he
introduced substantial evidence of his innocence, the hearing officer is not required to credit
that evidence. The complaint fails to allege that no evidence in support of the write-up was
presented to Defendant Chumbly.
Therefore, Plaintiff’s complaint is subject to dismissal for failure to state a claim on
which relief may be granted, under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
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. Rhode Island, 511 F. App’x 4, 5 (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, 511
F. App’x at 5; 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,
12

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.”).
The Court cannot conclude that any amendment to Plaintiff’s complaint would be
futile as a matter of law. Therefore, leave to amend is GRANTED. Any amended complaint
must be filed within twenty-eight (28) days after the date of this order.
Plaintiff is advised that an amended complaint supersedes the original complaint and
must be complete in itself without reference to the prior pleading. The text of the complaint
must allege sufficient facts to support each claim without reference to any extraneous
document. Any exhibits must be identified by number in the text of the amended complaint
and must be attached to the complaint. All claims alleged in an amended complaint must
arise from the facts alleged in the original complaint. Each claim for relief must be stated
in a separate count and must identify each Defendant sued in that count. If Plaintiff fails to
file an amended complaint within the time specified, the Court will assess a strike pursuant
to 28 U.S.C. § 1915(g) and enter judgment.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

13