Rossell v. Armstrong et al

Filing 7

ORDER PARTIALLY DISMISSING COMPLAINT AND DIRECTING THAT PROCESS BE ISSUED AND SERVED ON DEFENDANTS WILLIFORD AND MURPHY. Signed by Judge James D. Todd on 12/14/15. (Todd, James)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
MARICO TREMAYNE ROSSELL
Plaintiff,

VS.

TONEY ARMSTRONG, ET AL.
Defendants.

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No. 14-2737-JDT-dkv

ORDER PARTIALLY DISMISSING COMPLAINT AND DIRECTING THAT
PROCESS BE ISSUED AND SERVED ON DEFENDANTS WILLIFORD AND MURPHY

On September 19, 2014, Plaintiff Marico Tremayne Rossell (“Rossell”) who is confined
at the South Central Correctional Facility (“SCCF”) in Clifton, Tennessee, filed a pro se
complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1.) After Rossell submitted the necessary
documents (ECF No. 4), the Court granted leave to proceed in forma pauperis and assessed the
civil filing fee pursuant to the Prison Litigation Reform Act, 28 U.S.C. §§1915(a)-(b). (ECF No.
5.) The Clerk shall record the Defendants as Toney Armstrong, the Director of Police Services
for the City of Memphis, Tennessee; Memphis Police Officer J. Williford; and Memphis Police
Officer B. Murphy. The Defendants are sued in both their official and individual capacities.1

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The complaint also purports to sue a “John Doe” defendant. However, service of
process cannot be made on an unidentified party. The filing of a complaint against a “John Doe”
defendant does not toll the running of the statute of limitation against that party. See Cox v.
Treadway, 75 F.3d 230, 240 (6th Cir. 1996); Bufalino v. Mich. Bell Tel. Co., 404 F.2d 1023,
1028 (6th Cir. 1968).

I. THE COMPLAINT
In his complaint, Rossell alleges that on September 17, 2013, Defendant Williford used
excessive force in effecting his arrest. (ECF No. 1 at 4.) Rossell alleges that he was stopped for
“supposedly” not wearing his seat belt after which Defendant Williford assaulted him with a
closed fist three times. (Id.) Rossell alleges that Defendant Armstrong failed to investigate the
violation, and Defendant Murphy failed to stop the assault.

(Id. at 5.)

Rossell seeks

compensatory and punitive damages from each Defendant. (Id. at 7-8.)
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
(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
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
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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
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.,

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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
Rossell filed his complaint on the court-supplied form for actions under 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
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

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defendant acting under color of state law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150
(1970).
Rossell’s claims against the Defendants in their official capacities are asserted against the
City of Memphis. When a § 1983 claim is made against a municipality, 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 Rossell’s claims
against the City of Memphis.
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. Servs., 436 U.S. 658, 691 (1978); 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 Cnty., 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

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at 286 (quoting Polk Cnty. 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).
Rossell’s complaint does not allege that he was injured by an unconstitutional policy or custom
of the City of Memphis.
Defendant Armstrong cannot be sued as a supervisor. Under 42 U.S.C. § 1983, prison
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
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§ 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). 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 complaint does not allege that
Defendant Armstrong, through his own actions, violated Rossell’s rights.
For a convicted prisoner, claims for denial of adequate medical care arise under the
Eighth Amendment, which prohibits cruel and unusual punishment. See generally Wilson v.
Seiter, 501 U.S. 294 (1991). In the case of an arrestee or pretrial detainee, “the ‘cruel and
unusual punishment’ proscription of the Eighth Amendment to the Constitution does not apply,”
because “ [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 or local 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 though Rossell was not a convicted

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prisoner 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
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.
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.” Id. 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. at
106.

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On June 22, 2015, the Supreme Court held, in Kingsley v. Hendrickson, 133 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 claims concerning an inmate’s health
or safety, which the Sixth Circuit applies to both pretrial 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 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 deliberate indifference analysis to
claims concerning a pretrial detainee’s health and safety.
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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 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. 511
U.S. at 835-36. Although Rossell states in a conclusory manner that he was denied adequate
medical treatment, he does not state that he actually requested medical treatment from a named
Defendant or that any named Defendant denied a request for medical treatment.3

These

allegations are insufficient to establish either the subjective or objective component of an Eighth
Amendment claim for denial of medical care.
Rossell’s claim for use of excessive force is analyzed under the Fourth Amendment.
Graham v. Connor, 490 U.S. 386, 394 (1989). Not every use of force will state a § 1983 claim.
“[T]he right to make an arrest or investigatory stop necessarily carries with it the right to use
some degree of physical coercion or threat thereof to effect it.” Id. at 396 (citation omitted).

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In the narrative contained in the police report, which Rossell attached as an exhibit to
the complaint, Defendant Williford described Rossell’s injuries as a bloody lip and stated that
Rossell said he did not need medical attention. (ECF No. 1 at 9.)
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“The ‘reasonableness’ of a particular use of force must be judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. (citation
omitted); see also id. at 396-97 (“The calculus of reasonableness must embody allowance for the
fact that police officers are often forced to make split-second judgments—in circumstances that
are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a
particular situation.”). The “reasonableness” inquiry is an objective one: “the question is
whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances
confronting them, without regard to their underlying intent or motivation.” Id. at 397 (citations
omitted). The proper application of this standard
requires careful attention to the facts and circumstances of each particular case,
including the severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and whether he is actively
resisting arrest or attempting to evade arrest by flight.
Id. at 396 (citation omitted); see also Baker v. City of Hamilton, Ohio, 471 F.3d 601, 606 (6th
Cir. 2006). “These factors are not an exhaustive list, as the ultimate inquiry is whether the
totality of the circumstances justifies a particular sort of seizure.” Baker, 471 at 606-07 (internal
quotation marks omitted). For purposes of this screening, Rossell has sufficiently alleged a
Fourth Amendment claim of excessive force against Defendants Williford and Murphy.
III. CONCLUSION
The Court DISMISSES Rossell’s complaint against the Defendants in their official
capacities 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).

The claims against Defendant Armstrong in his

individual capacity are also DISMISSED for failure to state a claim on which relief can be
granted, pursuant to §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).

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Process will be issued for

Defendants Williford and Murphy in their individual capacities on Rossell’s claim of excessive
force.
It is ORDERED that the Clerk shall issue process for Defendants Williford and Murphy
and deliver that process to the U.S. Marshal for service. Service shall be made on Defendants
Williford and Murphy 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 Rossell shall serve a copy of every subsequent document he
files in this cause on the attorneys for the Defendants or on any unrepresented Defendant.
Rossell shall make a certificate of service on every document filed. Rossell shall familiarize
himself with Federal Rules of Civil Procedure and this Court’s Local Rules.4
Rossell 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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