Lewis v. Gupton et al

Filing 5

ORDER DISMISSING COMPLAINT, CERTIFYING THAT AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE. Signed by Judge James D. Todd on 1/7/2015. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
CHARLES EDWARD LEWIS, JR.,
Plaintiff,
VS.
WILLIAM J. GUPTON, JR., ET AL.,
Defendants.

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No. 14-2866-JDT-cgc

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

On October 31, 2014, Plaintiff Charles Edward Lewis, Jr., RNI number 362503, an inmate
at the Shelby County Correctional Center (“SCCC”) in Memphis, 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 November 3, 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
William J. Gupton, Jr., the Director of the Shelby County Division of Corrections(“SCDC”), which
operates the SCCC, and Shelby County.1
The complaint alleges that, on October 7, 2014, Plaintiff saw a rat in the dining hall that was
eating some bread that was to have been served to inmates. Plaintiff notified a food service staff

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The Court construes the allegations against the Shelby County Division of Corrections
as an attempt to assert a claim against Shelby County.

member named Long, who is not a party to this action. Long allegedly told Plaintiff that if he did
not like it he did not have to eat. Plaintiff filed a grievance and returned to his housing area. (ECF
No. 1 at 2.) According to Plaintiff, animals and insects “have been an on-going issue at SCDC for
a substantial amount of time[.]” (Id.) Inmates who work in the dining hall allegedly have seen
unsanitary conditions on a daily basis. (Id. at 2-3.) Plaintiff seeks both preliminary and permanent
injunctions and compensatory damages. (Id. at 3.)
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 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

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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 (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

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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.”).
To state a claim under 42 U.S.C. § 1983,2 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).
Plaintiff’s claim arises under the Eighth Amendment, which prohibits cruel and unusual
punishments. See generally Wilson v. Seiter, 501 U.S. 294 (1991). 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

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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.

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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. The Court will assume, for purposes of this order, that Plaintiff’s allegations about unsanitary
conditions in the SCCC kitchen satisfies the objective component of an Eighth Amendment
violation. See, e.g., Dotson v. Tenn., No. 3:14-cv-02172, 2014 WL 6686744, at *4 (M.D. Tenn.
Nov. 25, 2014).3
To establish the subjective component of an Eighth Amendment violation, a prisoner must
demonstrate that the official acted with the requisite intent, that is, that he had a “sufficiently

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The Court has assumed that the objective component has been satisfied because the
complaint alleges that the events of October 7, 2014, were not an isolated incident. See, e.g.,
Adams v. Louisville Metro Corr. Dept., No. 3:13-CV-P1086-S, 2014 WL 1117982, at *2 (W.D.
Ky. Mar. 20, 2014) (“Courts have consistently held that isolated incidents of foreign bodies,
even rodents and insects, surfacing in the food served to prisoners is not an Eighth Amendment
violation.”); Tucker v. Rose, 955 F. Supp. 810, 815 (N.D. Ohio 1997) (“Even if the allegations
regarding the presence of a rodent were true, such allegations would still only be isolated
incidents, and do not become an Eighth Amendment violation solely because the Plaintiffs are
prisoners.”).

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culpable state of mind.” Farmer, 511 U.S. at 834; see also Wilson, 501 U.S. at 297, 302-03. The
plaintiff must show that the prison officials acted with “deliberate indifference” to a substantial risk
that the prisoner would suffer serious harm. Farmer, 511 U.S. at 834; Wilson, 501 U.S. at 303;
Helling v. McKinney, 509 U.S. 25, 32 (1993); Woods v. Lecureux, 110 F.3d 1215,1222 (6th Cir.
1997); Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996); Taylor v. Mich. Dep’t of
Corr., 69 F.3d 76, 79 (6th Cir. 1995). “[D]eliberate indifference describes a state of mind more
blameworthy than negligence.” Farmer, 511 U.S. at 835. Thus,
[a] prison official cannot be found liable under the Eighth Amendment for denying
an inmate humane conditions of confinement unless the official knows of and
disregards an excessive risk to inmate health or safety; the official must both be
aware of facts from which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the inference. This approach comports
best with the text of the Eighth Amendment as our cases have interpreted it. The
Eighth Amendment does not outlaw cruel and unusual “conditions”; it outlaws cruel
and unusual “punishments.” An act or omission unaccompanied by knowledge of
a significant risk of harm might well be something society wishes to discourage, and
if harm does result society might well wish to assure compensation. The common
law reflects such concerns when it imposes tort liability on a purely objective basis.
. . . But an official’s failure to alleviate a significant risk that he should have
perceived but did not, while no cause for commendation, cannot under our cases be
condemned as the infliction of punishment.
Id. at 837-38 (emphasis added; citations omitted); see also Garretson v. City of Madison Heights,
407 F.3d 789, 796 (6th Cir. 2005) (“If the officers failed to act in the face of an obvious risk of
which they should have known but did not, then they did not violate the Fourteenth Amendment.”).
The subjective component must be evaluated for each defendant individually. Bishop, 636 F.3d at
767; see also id. at 768 (“[W]e must focus on whether each individual Deputy had the personal
involvement necessary to permit a finding of subjective knowledge.”).
Plaintiff’s complaint does not adequately allege the subjective component of an Eighth
Amendment violation. The only individual named as a defendant is the Director of the SCDC.

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There is no allegation that Defendant Gupton was actually aware of the allegedly unsanitary
conditions in the kitchen, realized that it presented an unacceptable risk to the health and safety of
inmates, and deliberately disregarded that risk.
Defendant Gupton cannot be held liable merely because of his position as SCDC Director.
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 subordinates, but fails to act, generally cannot be held liable in his
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). Plaintiff’s complaint does
not connect Defendant Gupton to the allegedly unsanitary conditions in the SCCC kitchen.
The complaint does not assert a valid claim against Shelby County. 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). Because the

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complaint does not adequately allege an Eighth Amendment violation, Shelby County cannot be
liable.
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, 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 because there is no reason to believe that Defendant Gupton is personally
responsible for the conditions in the SCCC kitchen.
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).

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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
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), partially overruled on other grounds by LaFountain v. Harry, 716 F.3d at 951. 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.

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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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