Gordon v. Barlow et al (PLR2)

Filing 9

ORDER TO MODIFY THE DOCKET, DENYING 8 MOTION TO APPOINT COUNSEL, DISMISSING COMPLAINT AND GRANTING LEAVE TO AMEND. Signed by Judge James D. Todd on 4/7/16. (Todd, James)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
ANTWON GORDON,
Plaintiff,
VS.
TERRY BARLOW, ET AL.,
Defendants.

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No. 15-2024-JDT-tmp

ORDER TO MODIFY THE DOCKET, DENYING MOTION TO APPOINT COUNSEL,
DISMISSING COMPLAINT AND GRANTING LEAVE TO AMEND

On December 17, 2014, Plaintiff Antwon Gordon (“Gordon”), Tennessee Department of
Correction (“TDOC”) prisoner number 403067, who is presently an inmate at the Whiteville
Correctional Facility (“WCF”) in Whiteville, Tennessee,1 filed a pro se complaint pursuant to 42
U.S.C. § 1983 in the U.S. District Court for the Eastern District of Tennessee, accompanied by a
motion to proceed in forma pauperis. (ECF Nos. 1 & 2.) The complaint concerns Gordon’s
previous incarceration at the West Tennessee State Penitentiary (“WTSP”) in Henning,
Tennessee. In an order issued January 13, 2015, U.S. District Judge Pamela J. Reeves granted
leave to proceed in forma pauperis, assessed the civil filing fee pursuant to the Prison Litigation
Reform Act (“PLRA”), 28 U.S.C. §§ 1915(a)-(b), and transferred the case to this district, where
venue is proper. (ECF No. 3.) The Clerk shall record the Defendants as Lieutenant Terry

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When the complaint was filed, Gordon was incarcerated at the Morgan County
Correctional Complex (“MCCX”). However, Gordon’s last two filings (ECF Nos. 7 & 8)
indicate that he is now housed at the WCF. The Clerk is directed to MODIFY the docket to
reflect that Gordon’s address is the WCF and to send him a copy of this order at the WCF.

Barlow, Sergeant Patrick Hankins, former MCCX Warden David Sexton, Chief of Security
Charles Sweat, Corporal Brandon Foster, Corporal Jason Gilbert, the State of Tennessee,2 and
TDOC Deputy Commissioner of Operations James Woodall.3
On January 29, 2016, Gordon filed a motion for appointment of counsel. (ECF No. 8.)
Pursuant to 28 U.S.C. § 1915(e)(1), “[t]he court may request an attorney to represent any person
unable to afford counsel.” However, “[t]he appointment of counsel in a civil proceeding is not a
constitutional right.” Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir. 2003); see also Shepherd v.
Wellman, 313 F.3d 963, 970 (6th Cir. 2002) (“[T]he plaintiffs were not entitled to have counsel
appointed because this is a civil lawsuit.”); Lavado v. Keohane, 992 F.2d 601, 605-06 (6th Cir.
1993) (no constitutional right to counsel in a civil case); Farmer v. Haas, 990 F.2d 319, 323 (7th
Cir. 1993) (“There is no constitutional or . . . statutory right to counsel in federal civil cases . . .
.”). Appointment of counsel is “a privilege that is justified only by exceptional circumstances.”
Lavado, 992 F.2d at 606 (internal quotation marks and citation omitted). “In determining
whether ‘exceptional circumstances’ exist, courts have examined the type of case and the
abilities of the plaintiff to represent himself. This generally involves a determination of the
complexity of the factual and legal issues involved.” Id. at 606 (internal quotation marks and
citations omitted). Appointment of counsel is not appropriate when a pro se litigant’s claims are
frivolous or when his chances of success are extremely slim. Id. (citing Mars v. Hanberry, 752

2

The Court construes the claims against the Tennessee Department of Correction as
claims brought against the State of Tennessee. See generally Hafer v. Melo, 502 U. S. 21 (1991).
3

Avery also purports to sue unknown (“John/Jane Doe”) correctional officers. Service of
process cannot be made on an unidentified party. The filing of a complaint against such a
“John/Jane Doe” party does not toll the running of the statute of limitations 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). The Clerk is DIRECTED to terminate the John/Jane Doe
defendants.
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F.2d 254, 256 (6th Cir. 1985)); see also Cleary v. Mukasey, 307 F. App’x 963, 965 (6th Cir.
2009) (same).
Gordon has not satisfied his burden of demonstrating that the Court should exercise its
discretion to appoint counsel in this case. Nothing in Gordon’s motion serves to distinguish this
case from the many other cases filed by pro se prisoners who are not trained attorneys and who
have limited access to legal materials. Therefore, the motion for appointment of counsel is
DENIED.
I. The Complaint
Gordon alleges that on August 4, 2014, two inmates housed at WTSP assaulted a
correctional officer while being transported to medical. The assault occurred in the middle of the
pod and was witnessed by two other officers and many inmates. (ECF No. 2 at 3-4.) After the
attack, the inmates who committed the assault on the correctional officer were locked in their cell
by Officer Toones, who is not a party to this complaint. (Id. at 4.) When several other officers
arrived at the pod in response to the attack, they approached Gordon’s cell and demanded that he
and his cellmate get on the floor. (Id.) Although the responding officers were told by Officer
Toones and the other inmates in the pod that they were at the wrong cell, they ignored the
information and made a tactical-style approach to Gordon’s cell. (Id.) The officers sprayed
chemicals into the cell through the cell tray flap and closed the flap, causing Gordon and his
cellmate to choke and gasp because they could not breathe. (Id.) Gordon and his cellmate were
on the floor, unresisting and still unable to breathe, when the officers “crashed” through the door
and handcuffed, kneed, choked and roughed up Gordon and his cellmate in retaliation for the
assaulted officer. (Id.)

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Gordon and his cellmate were taken to medical, during which time they tried to explain
the officers’ error concerning who was responsible for the attack; however, the officers told them
to “shut up!,” they did not want to hear anything Gordon or his cellmate had to say. (Id. at 4-5.)
When they got to medical, Gordon and his cellmate were placed in a holding cell without being
given any medical treatment, and Gordon began experiencing swelling of the eyes, shortness of
breath, chest pains, skin irritation, nausea, headaches, dizziness and vomiting. (Id. at 5.) During
this time Warden Dickerson, who is not a party to the complaint, passed by and was told by
Gordon and his cellmate that there was a mistake, but Dickerson also told them to “shut up” if
they knew what was good for them. (Id.) After a while, the two inmates who had actually
committed the assault were brought to medical in handcuffs, but showed no signs of having been
pepper-sprayed or any signs that they had been subjected to any force. (Id.)
The next morning Gordon was immediately transferred after requesting a copy of the
investigation report and the names of all the parties involved. (Id.) Upon arrival at the MCCX,
Gordon filed a grievance but was continuously given vague answers and responses. (Id.)4
Gordon alleges he was written up for failure to follow a direct order by officers responding to the
distress call, given a hearing that was later dismissed, and diagnosed by nurses, even though he
was not present for those events. (Id. at 6.)
Gordon seeks money damages as well as further investigation into the incident. (Id. at 7.)
II. Analysis
The Court is required to screen prisoner complaints and to dismiss any complaint, or any
portion thereof, if the complaint—

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Gordon alleges some of the responses to his grievance claimed he was actually involved
in the assault, while others claimed the responding officers were within their rights to do what
they did despite any mistake. (Id. at 5-6.)
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(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
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,
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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.,
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

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responsibility does not encompass advising litigants as to what legal theories they should
pursue.”).
Gordon 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
defendant acting under color of state law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150
(1970).
“[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). Gordon’s claims against the TDOC and any official capacity claims against TDOC
employees Barlow, Hankins, Sexton, Sweat, Foster, Gilbert and Woodall are brought against the
State of Tennessee.
Plaintiff has no valid claim 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
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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); see also Va. Office for Protection & Advocacy v. Stewart, 563 U.S. 247, 253-54
(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. § 20-13102(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.
The complaint does not actually contain any factual allegations against the specifically
named Defendants. When a complaint fails to allege any action by a defendant, it necessarily
fails to “state a claim for relief that is plausible on its face.” Twombly, 550 U.S. at 570.
Moreover, the Defendants cannot be sued as supervisors. 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
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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 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). 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.”).

To the extent Gordon alleges that any

Defendant was made aware of his claims through the grievance process but failed to take action,
those allegations are insufficient to establish liability under 42 U.S.C. § 1983.
Gordon’s claims of excessive force arise under the Eighth Amendment, which prohibits
cruel and unusual punishments. See generally Wilson v. Seiter, 501 U.S. 294 (1991). “[T]he
unnecessary and wanton infliction of pain . . . constitutes cruel and unusual punishment
forbidden by the Eighth Amendment.” Whitley v. Albers, 475 U.S. 312, 319 (1986) (internal
quotation marks omitted). Where an inmate challenges a use of force by prison guards, “the
question whether the measure taken inflicted unnecessary and wanton pain and suffering
ultimately turns on whether force was applied in a good faith effort to maintain or restore
discipline or maliciously and sadistically for the very purpose of causing harm.” Id. at 320-21

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(internal quotation marks omitted); see also Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per
curiam) (“The ‘core judicial inquiry’ [for an excessive force claim] was not whether a certain
quantum of injury was sustained, but rather whether force was applied in a good-faith effort to
restore discipline, or maliciously and sadistically to cause harm.” (internal quotation marks
omitted)). A significant physical injury is not required to establish the objective component of
an Eighth Amendment claim. Wilkins, 559 U.S. at 1178-79 (“An inmate who is gratuitously
beaten by guards does not lose his ability to pursue an excessive force claim merely because he
has the good fortune to escape without serious injury.”); Hudson v. McMillian, 503 U.S. 1, 7-9
(1992) (same).
Gordon does not allege that he was assaulted or physically harmed in any way by any of
the Defendants specifically named in the complaint. Therefore, he has failed to state a claim of
excessive force under the Eighth Amendment.
For all of the foregoing reasons, Gordon’s complaint is subject to dismissal in its entirety
for failure to state a claim on which relief can be granted.
III. 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, the Court cannot conclude that any amendment to Gordon’s claims would be futile
as a matter of law.
IV. Conclusion
The Court DISMISSES Gordon’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). However, leave to
amend is GRANTED. Any amended complaint must be filed within thirty (30) days after the
date of this order. Gordon is advised that an amended complaint will supersede the original
pleadings and and must be complete in itself without reference to those prior pleadings. 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 Gordon 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.

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Gordon is reminded that he must 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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