HARPER v. TURNER et al

Filing 9

ORDER DISMISSING COMPLAINT, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH, DENYING LEAVE TO APPEAL IN FORMA PAUPERIS AND NOTIFYING PLAINTIFF OF RESTRICTIONS UNDER 28 U.S.C. § 1915(g). Signed by Judge James D. Todd on 1/4/16. (Todd, James)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
PERRY HARPER,
Plaintiff,
VS.
F. TURNER, ET AL.,
Defendants.

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No. 14-2651-JDT-dkv

ORDER DISMISSING COMPLAINT,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH,
DENYING LEAVE TO APPEAL IN FORMA PAUPERIS AND
NOTIFYING PLAINTIFF OF RESTRICTIONS UNDER 28 U.S.C. § 1915(g)

On July 30, 2014, Plaintiff Perry Harper (“Harper”), who was, at the time, incarcerated at
the Fayette County Detention Center (“Jail”) in Somerville, Tennessee,1 filed a pro se complaint
pursuant to 42 U.S.C. § 1983 in the U.S. District Court for the District of Columbia,
accompanied by a motion seeking leave to proceed in forma pauperis. (ECF Nos. 1 & 2.) On
July 30, 2014, U.S. District Judge Coleen Kollar-Kotelly issued an order transferring the case to
this district, where venue is proper. (ECF No. 3.) The case was transferred in accordance with
that order on August 21, 2014. (ECF No. 4.) This Court subsequently 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. 7.) The Clerk shall record the Defendants as
Jail Administrator F. Turner and Lieutenant (“Lt.”) Larry Turner.

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On September 4, 2014, Harper notified the Court that he had been released from the
Jail. (ECF No. 8.)

I. The Complaint
Harper alleges that on July 12, 2014, he and two other inmates came out of their cells at
the same time to check out a book when the book cart was brought around by Defendant Lt.
Turner and Correctional Officer Nutt, who is not a party to this action. After a verbal exchange
with one of the other two inmates, Lt. Turner threatened “[spray] D-Pod the same way he [spray]
C-Pod the week before.” (ECF No. 1 at 1.) Harper told Lt. Turner to make “sure you [spray] the
right one.” (Id.) Lt. Turner then allegedly stated to Harper that “he run the jail and he do what
the fuck he want to. And state that he would blow the top of my head off, that it would not be a
fuck thing did to him about it.” (Id.) Harper alleges that he wrote a grievance about the threat to
Defendant F. Turner, but no investigation was conducted. (Id.) Harper alleges that the threat has
caused him anxiety, emotional distress, and insomnia because every time he hears a door
opening, he thinks Lt. Turner is returning to harm him. He seeks monetary damages. (Id. at 3.)
II. Analysis
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).
In assessing whether the complaint in this case states a claim on which relief may be
granted, the court applies the standards under Federal Rules 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

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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 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

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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.”).
Harper filed his hand-written complaint pursuant to 42 U.S.C. § 1983. 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
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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).
Harper’s claims regarding the alleged threat made by Lt. Turner are claims alleging
verbal abuse. For a convicted prisoner, such claims arise under the Eighth Amendment, which
prohibits cruel and unusual punishments. See generally Wilson v. Seiter, 501 U.S. 294 (1991).
In the case of a pretrial detainee, “the ‘cruel and unusual punishment’ proscription of the Eighth
Amendment to the Constitution does not apply,” because “as a pre-trial detainee [the plaintiff is]
not being ‘punished,’” Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000). Instead, a person
detained prior to conviction receives protection against mistreatment at the hands of prison
officials under the Due Process Clause of the Fourteenth Amendment if held in state custody.
Liscio v. Warren, 901 F.2d 274, 275–76 (2d Cir.1990). Caiozzo v. Koreman, 581 F.3d 63, 69 (2d
Cir. 2009). However, even if Harper 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. Thompson v. Cnty. of Medina, 29 f.3d
238, 242 (6th Cir. 1994) (citing Roberts v. City of Troy, 773 F.2d 720, 723 (6th Cir. 1985).2

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On June 22, 2015, the Supreme Court held, in Kingsley v. Hendrickson, 135 S. Ct. 2466
(2015), that excessive force claims brought by pre-trial detainees must be analyzed under a
standard of objective reasonableness, rejecting a subjective standard that takes into account a
defendant’s state of mind. Id. at 2472-73. It is unclear whether or to what extent the holding in
Kingsley may affect the deliberate indifference standard for other types of claims concerning an
inmate’s health or safety, which the Sixth Circuit applies to both pre-trial detainees and
convicted prisoners. See Morabito v. Holmes, --- F. App’x ---, 2015 WL 5920204, at *4-*5 (6th
Cir. 2015) (applying, even after the decision in Kingsley, the objective reasonableness standard
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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-ofconfinement claim.” Id.
Defendant Lt. Turner’s alleged 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,

to pretrial detainee’s excessive force claims and the deliberate indifference standard to denial of
medical care claim). Absent further guidance, the Court will continue to apply the two-prong
deliberate indifference analysis to claims concerning a pretrial detainee’s health and safety.
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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)). Thus, Harper has no cause of action
for threats made by Defendant Lt. Turner.
Harper also has no cause of action against Defendant F. Turner for failing to investigate
or take remedial measures to the extent he was aware of Harper’s grievances or complaints.
Although failure to investigate may give rise to § 1983 supervisory liability, see Walker v.
Norris, 917 F.2d 1449, 1457 (6th Cir. 1990) and Marchese v. Lucas, 758 F.2d 181, 188 (6th Cir.
1985), the reasoning in Walker and the analysis in its progeny teach that evidence of a “failure to
investigate” can establish municipal liability only. In Dyer v. Casey, 1995 WL 712765, at *2

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(6th Cir. 1995), the Court stated that “the theory underlying these cases is that the municipality’s
failure to investigate or discipline amounts to a ‘ratification’ of the officer’s conduct.”
In Walker, the Sixth Circuit distinguished Marchese because the Court “imposed the
broad investigative responsibilities outlined in Marchese upon the Sheriff in his official
capacity,” Walker, 917 F.2d at 1457, and “in that capacity, he had a duty to both know and act,”
id. (quoting Marchese, 758 F.2d at 188). In 1998, the Sixth Circuit affirmed the dismissal of a
claim of supervisory liability based on the “failure to investigate” stating:
Young’s claim against defendants McAninch and Goff is based solely on their
alleged failure to investigate defendant Ward’s behavior towards Young.
Although Young stated that defendants McAninch and Goff had knowledge of his
allegations against defendant Ward, this is insufficient to meet the standard that
they either condoned, encouraged or knowingly acquiesced in the misconduct.
Young v. Ward, 1998 WL 384564 *1 (6th Cir. 1998). Harper has no claim against Defendant F.
Turner for failing to take corrective or investigative action in response to his grievance.
For all of the foregoing reasons, Harper’s complaint is subject to dismissal in its entirety
for failure to state a claim on which relief may be granted.
III. Standard for Leave to Amend
The Sixth Circuit has held that a district court may allow a prisoner to amend his
complaint to avoid a sua sponte dismissal under the PLRA. LaFountain v. Harry, 716 F.3d 944,
951 (6th Cir. 2013); see also Brown v. R.I., 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

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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.”).
In this case, because the deficiencies in Harper’s complaint cannot be cured, leave to amend is
not warranted.
IV. Conclusion
The Court DISMISSES Harper’s complaint for failure to state a claim on which relief can
be granted, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b(1). Leave to amend is
DENIED because the deficiencies in Harper’s complaint cannot be cured.
The Court must also consider whether Harper should be allowed to appeal this decision in
forma pauperis, should he seek to do so. A non-prisoner desiring to proceed on appeal in forma
pauperis must obtain pauper status under Federal Rule of Appellate Procedure 24(a). See
Callihan v. Schneider, 178 F.3d 800, 803-04 (6th Cir. 1999). However, Rule 24(a)(3) provides
that if a party was permitted to proceed in forma pauperis in the district court, he may also
proceed on appeal in forma pauperis without further authorization unless the district court
“certifies that the appeal is not taken in good faith or finds that the party is not otherwise entitled
to proceed in forma pauperis.” If the district court denies pauper status, the party may file a
motion to proceed in forma pauperis in the Court of Appeals. Fed. R. App. P. 24(a)(4)-(5).

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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 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.
It is CERTIFIED, pursuant to Federal Rule of Appellate Procedure 24(a), that any appeal
in this matter by Harper would not be taken in good faith. Leave to appeal in forma pauperis is,
therefore, DENIED. Accordingly, if Harper files a notice of appeal, he must also pay the full
$505 appellate filing fee or file a motion for leave to appeal in forma pauperis and supporting
affidavit in the Sixth Circuit Court of Appeals.
For analysis under 28 U.S.C. § 1915(g) of future filings, if any, by Harper, this is the
third dismissal of one of his cases as frivolous or for failure to state a claim.3 This “strike” shall
take effect when judgment is entered. Coleman v. Tollefson, 135 S. Ct. 1759, 1763-64 (2015).
Section 1915(g) provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil
action or proceeding under this section if the prisoner has, on 3 or more prior
occasions, while incarcerated or detained in any facility, brought an action or
appeal in a court of the United States that was dismissed on the ground that it is
frivolous, malicious, or fails to state a claim upon which relief may be granted,
unless the prisoner is under imminent danger of serious physical injury.

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See Harper v. Fayette County, et al., No. 14-2650-JDT-dkv (W.D. Tenn. Nov. 25,
2015) (dismissed for failure to state a claim), and Harper v. Fayette County, et al., No. 14-2612JDT-dkv (W.D. Tenn. Jan. 6, 2015) (dismissed for failure to state a claim).
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28 U.S.C. § 1915(g). Consequently, Harper is warned that he is barred from filing any further
actions in forma pauperis while he is a prisoner within the meaning of 28 U.S.C. § 1915(h)
unless he is in imminent danger of serious physical injury. Any civil action filed by Harper after
the date of the judgment in this case must be accompanied by either the $400 civil filing fee or
allegations sufficient to show that, at the time of filing the action, he is in imminent danger of
serious physical injury. If Harper submits any complaint that does not allege he is under
imminent danger of serious physical injury or is not accompanied by the filing fee, the complaint
will be filed, but Harper will be required to remit the full filing fee. If he fails to do so, the case
will be dismissed, and the filing fee will be assessed from his inmate trust account without regard
to the installment payment procedures of 28 U.S.C. §§ 1915(a)-(b).4
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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Harper is further cautioned that, if he attempts to evade the § 1915(g) restriction by
filing actions in other jurisdictions that are then transferred or removed to this district, the Court
may impose a monetary sanction in the full amount of the civil filing fee.
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