Harper v. Fayette County Jail et al

Filing 6

ORDER DISMISSING CASE, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE. Signed by Judge James D. Todd on 1/2/2015. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
PERRY LEE HARPER,
Plaintiff,
VS.
FAYETTE COUNTY, ET AL.,
Defendants.

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No. 14-2612-JDT-dkv

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

On August 6, 2014, Plaintiff Perry Lee Harper, who is incarcerated at the Fayette County Jail
(“Jail”) in Somerville, 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 on August 7, 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 Fayette County, Lieutenant Larry
Turner, and Chief Deputy Tom Whitaker.1
The complaint alleges that, on July 12, 2014, while Plaintiff was attempting to check out a
book from the book cart, Defendant Turner threatened to spray the pod in which Plaintiff and two
other inmates were housed “[t]he sameway [sic] he spary [sic] C-Pod the week before.” (ECF No.

1

The Court construes the allegations against the Jail as an attempt to assert a claim
against Fayette County.

1 at 2.) Plaintiff told Turner to make sure he sprayed the right one, and Turner allegedly replied that
“he run the Jail and he do what the fuck he want to. And state that he would blow the top of
[Plaintiff’s] head off, and that it wouldn’t be a fucking thing did to him about it.” (Id. at 2-3.)
Plaintiff submitted a grievance about this incident on July 12, 2014. He submitted a second
grievance on July 14, 2014 that was addressed to Jail Administrator Francis Turner, who is not a
party to this action. Plaintiff alleges that the second grievance form was never returned to him. He
further alleges that Defendant Whitaker denied his first grievance.2

That denial allegedly

demonstrates that “[t]here is know [sic] kind of grievance procedure in this institution.” (ECF No.
1 at 3.)
In the prayer for relief, Plaintiff avers that he is suffering from “anxiety, high blood pressure
and nerves can’t sleep at night can’t stop eating my fingernail . . . .” (Id. at 4.) He seeks money
damages in the amount of $250,000. (Id.)
The Court is required to screen prisoner complaints and to dismiss any complaint, or any
portion thereof, if the complaint—
(1)
is frivolous, malicious, or fails to state a claim upon which relief may
be granted; or
(2)

seeks monetary relief from a defendant who is immune from such

relief.
28 U.S.C. § 1915A(b); see also 28 U.S.C. § 1915(e)(2)(B).

2

A copy of Plaintiff’s grievance and Whitaker’s response is attached to the complaint.
(ECF No. 1-1.) Whitaker’s response, dated July 14, 2014, states that, “[a]fter reviewing these
allegations and statements, I find the allegations are unfounded and charges alledged [sic] are
denied.” (Id.)
2

In assessing whether the complaint in this case states a claim on which relief may be granted,
the standards under Fed. R. Civ. P. 12(b)(6), as stated in Ashcroft v. Iqbal, 556 U.S. 662, 677-79
(2009), and in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007), are applied. Hill v.
Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). “Accepting all well-pleaded allegations in the
complaint as true, the Court ‘consider[s] the factual allegations in [the] complaint to determine if
they plausibly suggest an entitlement to relief.’” Williams v. Curtin, 631 F.3d 380, 383 (6th Cir.
2011) (quoting Iqbal, 556 U.S. at 681). “[P]leadings that . . . are no more than conclusions, are not
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).

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 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. § 1983,3 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).
The complaint does not assert a valid claim against Fayette County. When a § 1983 claim
is made against a municipality or county, the court must analyze two distinct issues: (1) whether
the 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 Fayette 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

3

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

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. 312, 326 (1981) (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 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)).
Although civil rights plaintiffs are not required to plead the facts demonstrating municipal
liability with particularity, see Leatherman v. Tarrant Cnty. 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, No. 3:06CV-P610-H, 2007 WL
1035007, at *2 (W.D. Ky. Mar. 30, 2007); Oliver v. City of Memphis, No. 04-2074-B, 2004 WL
3316242, at *4 (W.D. Tenn. Dec. 2, 2004); cf. Raub v. Corr. 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); Chidester v. City of Memphis, No. 02-2556 MA/A,
2006 WL 1421099, at *3 (W.D. Tenn. June 15, 2005). The complaint does not allege that Plaintiff
suffered any injury arising from an unconstitutional policy or custom of Fayette County.

6

Plaintiff has no claim against Fayette County for deficiencies in its grievance policy, and he
has no claim against Defendant Whitaker for concluding that his grievance was unfounded. Inmates
do not have a right under the Due Process Clause to an effective grievance mechanism. Argue v.
Hofmeyer, 80 F. App’x 427, 430 (6th Cir. 2003); Smith v. Corr. Corp. of Am., 19 F. App’x 318, 321
(6th Cir. 2001) (holding that prisoner “had no constitutional right to . . . disciplinary or grievance
systems that met his standards”); Shehee v. Luttrell, 199 F.3d at 300; Irvin v. Fluery, No. 2:07-cv117, 2007 WL 5328577, at *2 (W.D. Mich. Sept. 11, 2007) (“[T]he Sixth Circuit and other circuit
courts have held that there is no constitutional right to access an institutional grievance procedure.”)
(report and recommendation), adopted, 2007 WL 3036493 (W.D. Mich. Oct. 16, 2007); Mackey v.
Carberry, No. 2:07-cv-43, 2007 WL 2479296, at *3 (W.D. Mich. Aug. 28, 2007) (report and
recommendation adopted as opinion of the Court); Holloway v. Drew, No. 2:07-CV-160-MEF, 2007
WL 1175067, at *2 (M.D. Ala. Apr. 4, 2007) (report and recommendation); Robertson v.
Montgomery Cnty., No. 3 06 0435, 2006 WL 1207646, at *2 (M.D. Tenn. Apr. 27, 2006) (“[S]tate
law does not create a liberty interest in the grievance procedure.”); Robinson v. Hastings, 2006 WL
950185, at *4.4 Defendant Whitaker did not violate Plaintiff’s constitutional rights by finding that
his grievance was unfounded. 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.”)

4

See also 42 U.S.C. § 1997e(b) (“The failure of a State to adopt or adhere to an
administrative grievance procedure shall not constitute the basis for an action under section
1997a or 1997c of this title.”).
7

Plaintiff’s claims against Defendant Turner arise under the Eighth Amendment, which
prohibits cruel and unusual punishments. See generally Wilson v. Seiter, 501 U.S. 294 (1991).5 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, 631 F.3d at 383; Mingus v. Butler, 591 F.3d 474, 479-80 (6th Cir. 2010).
The objective component requires that the deprivation be “sufficiently serious.” Farmer, 511 U.S.
at 834; Hudson, 503 U.S. at 8; Wilson, 501 U.S. at 298.
To satisfy the objective component of an Eighth Amendment claim, a prisoner must show
that he “is incarcerated under conditions posing a substantial risk of serious harm,” Farmer, 511
U.S. at 834; see also Miller v. Calhoun Cnty., 408 F.3d 803, 812 (6th Cir. 2005), or that he has been
deprived of the “‘minimal civilized measure of life’s necessities,’” Wilson, 501 U.S. at 298 (quoting
Rhodes v. Chapman, 452 U.S. 337, 347 (1981)); see also Hadix v. Johnson, 367 F.3d 513, 525 (6th
Cir. 2004). The Constitution “‘does not mandate comfortable prisons.’” Wilson, 501 U.S. at 298
(quoting Rhodes, 452 U.S. at 349). “[R]outine discomfort ‘is part of the penalty that criminal
offenders pay for their offenses against society.’” Hudson, 503 U.S. at 9 (quoting Rhodes, 452 U.S.
at 347). Thus, “extreme deprivations are required to make out a conditions-of-confinement claim.”
Id.

5

Convicted inmates’ rights stem from the Eighth Amendment, while pretrial detainees’
rights stem from the Fourteenth Amendment. Thompson v. Cnty. of Medina, 29 F.3d 238, 242
(6th Cir. 1994); Roberts v. City of Troy, 773 F.2d 720, 723 (6th Cir. 1985). Even if Plaintiff was
a pretrial detainee during the events at issue, the Court will analyze his claims under Eighth
Amendment principles because the rights of pretrial detainees are equivalent to those of
convicted prisoners.
8

Defendant Turner’s threats do not satisfy the objective component of an Eighth Amendment
claim. See, e.g., Pasley v. Conerly, 345 F. App’x 981, 984 (6th Cir. 2009); Jones Bey v. Johnson,
248 F. App’x 675, 677-78 (6th Cir. 2007) (no Eighth Amendment claim for prison guard’s “use of
racial slurs and other derogatory language”); Miller v. Wertanen, 109 F. App’x 64, 65 (6th Cir.
2004) (a guard’s verbal threat to sexually assault an inmate “was not punishment that violated [the
prisoner’s] constitutional rights”); Johnson v. Unknown Dellatifa, 357 F.3d 539, 546 (6th Cir. 2004)
(“harassment and verbal abuse . . . do not constitute the type of infliction of pain that the Eighth
Amendment prohibits”); Johnson v. Moore, 7 F. App’x 382, 384 (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)); Ivey v. Wilson, 832 F.2d 950, 955
(6th Cir. 1987) (per curiam) (holding that verbal abuse or harassment does not constitute punishment
under the Eighth Amendment); 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. Verbal threats and abuse made in retaliation for filing
grievances are likewise not actionable.” (citation omitted)).
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.

9

2013); see also Brown v. R.I., No. 12-1403, 2013 WL 646489, at *1 (1st Cir. Feb. 22, 2013) (per
curiam) (“Ordinarily, before dismissal for failure to state a claim is ordered, some form of notice and
an opportunity to cure the deficiencies in the complaint must be afforded.”). Leave to amend is not
required where a deficiency cannot be cured. Brown, 2013 WL 646489, at *1; Gonzalez-Gonzalez
v. United States, 257 F.3d 31, 37 (1st Cir. 2001) (“This does not mean, of course, that every sua
sponte dismissal entered without prior notice to the plaintiff automatically must be reversed. If it
is crystal clear that the plaintiff cannot prevail and that amending the complaint would be futile, then
a sua sponte dismissal may stand.”); Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir.
2002) (“in forma pauperis plaintiffs who file complaints subject to dismissal under Rule 12(b)(6)
should receive leave to amend unless amendment would be inequitable or futile”); Curley v. Perry,
246 F.3d 1278, 1284 (10th Cir. 2001) (“We agree with the majority view that sua sponte dismissal
of a meritless complaint that cannot be salvaged by amendment comports with due process and does
not infringe the right of access to the courts.”). The deficiencies in Plaintiff’s § 1983 claim cannot
be cured by amendment for the reasons previously stated.
Therefore, the Court DISMISSES Plaintiff’s complaint for failure to state a claim on which
relief may be granted, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
Pursuant to 28 U.S.C. § 1915(a)(3), the Court must also consider whether an appeal by
Plaintiff in this case would be taken in good faith. The good faith standard is an objective one.
Coppedge v. United States, 369 U.S. 438, 445 (1962). The test for whether an appeal is taken in
good faith is whether the litigant seeks appellate review of any issue that is not frivolous. Id. It
would be inconsistent for a district court to determine that a complaint should be dismissed prior to
service on the Defendants, but has sufficient merit to support an appeal in forma pauperis. See

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Williams v. Kullman, 722 F.2d 1048, 1050 n.1 (2d Cir. 1983). The same considerations that lead
the Court to dismiss this case for failure to state a claim also compel the conclusion that an appeal
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 Plaintiff would not be taken in good faith.
The Court must also address the assessment of the $505 appellate filing fee if Plaintiff
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). McGore sets out specific procedures for implementing the Prison Litigation Reform Act, 28
U.S.C. § 1915(a)-(b). Therefore, the 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 § 1915(a)(2) 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 Plaintiff, 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, 733 F.3d 175, 177-78 (6th Cir. 2013), cert.
granted, 82 U.S.L.W. 3675 (U.S. Oct. 2, 2014) (Nos. 13-1333, 13A985).
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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