Dowdy v. State of Tennessee et al

Filing 5

ORDER PARTIALLY DISMISSING COMPLAINT AND DIRECTING THAT PROCESS BE ISSUED AND SERVED ON DEFENDANT HASSETT. Signed by Judge James D. Todd on 8/15/16. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
ANTHONY DURRELL DOWDY,
Plaintiff,
vs.
STATE OF TENNESSEE, ET AL.,
Defendants.

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No. 2:15-cv-2769-JDT-cgc

ORDER PARTIALLY DISMISSING COMPLAINT
AND DIRECTING THAT PROCESS BE ISSUED AND SERVED ON
DEFENDANT HASSETT

On November 30, 2015, Plaintiff Anthony Durrell Dowdy (“Dowdy”), 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 for leave to proceed in forma pauperis.
(ECF Nos. 1 & 2.) On December 1, 2015, 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. 3.). The Clerk shall record the defendants as the State of Tennessee,
Officer Terry Smith, Officer First Name Unknown Hassett, and Demetrious.1
I. THE COMPLAINT
Dowdy alleges that on July 15, 2015, Defendant Hassett punched him in the eye and
stomach several times while Dowdy was in the main frameblock, resulting in a black eye, and
placed spray mace directly in Dowdy’s nose area while Dowdy was in handcuffs. (ECF No. 1 at

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It is unclear whether Demetrious is a first name or a last name, and this individual is not
otherwise identified.

2.) Dowdy further alleges that Defendant Hassett denied him medical treatment for fifteen
minutes before taking him to medical. (Id.) Lastly, Dowdy contends that “the other officer”
held him as Defendant Hassett beat him while he was in his cell. (Id.)
Dowdy asks the Court to order lie detector tests to prove his rights were violated, to have
Defendant Hassett pay for Dowdy’s ongoing counseling as well as for his pain and suffering, and
to have Defendant Hassett relieved of duty and the other defendants suspended pending the
results of the lie detector tests. (Id. at 3.)
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 Rule 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
Dowdy filed his complaint on the court-supplied form for actions under 42 U.S.C. § 1983

which 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).
Dowdy cannot sue the State of Tennessee under 42 U.S.C. § 1983.

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 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,
131 S. Ct. 1632, 1638 (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. § 20-13-102(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 v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989).
The complaint contains no factual allegations against Defendants Smith and Demetrious.
Dowdy alleges that “the other officer held [him] as [Defendant Hassett] beat [him].” (ECF No. 1
at 2.) However, Dowdy fails to specifically allege which defendant or defendants were holding

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him. 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.
The Supreme Court has held that “the 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). The Supreme Court has
applied this standard to uses of force by prison officials, explaining that “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 (citation omitted); see also
Hudson v. McMillian, 503 U.S. at 6-7. In Hudson, 503 U.S. at 7-9, the Supreme Court held that
a significant physical injury is not required to establish the objective component of an Eighth
Amendment claim. However, the Supreme Court made clear that trivial physical contact does
not violate the Eighth Amendment:
That is not to say that every malevolent touch by a prison guard gives
rise to a federal cause of action. See Johnson v. Glick, 481 F.2d [1028,] 1033
[(2d Cir. 1973)] (“Not every push or shove, even if it may later seem
unnecessary in the peace of a judge’s chamber, violates a prisoner’s
constitutional rights”). The Eighth Amendment’s prohibition of “cruel and
unusual” punishments necessarily excludes from constitutional recognition de
minimis uses of physical force, provided that the use of force is not of a sort
“‘repugnant to the conscience of mankind.” Whitley, 475 U.S., at 327 . . .
(quoting Estelle, supra, 429 U.S., at 106 . . . (internal quotation marks omitted).
Id. at 9-10. For purposes of screening, Dowdy has alleged a plausible claim for violation of the
Eighth Amendment against Defendant Hassett.
Dowdy also alleges that he was refused needed medical treatment following his injury.
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 v. Seiter,

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501 U.S. 294, 298 (1991).

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.
In the context of an Eighth Amendment claim based on a lack of medical care, the objective
component requires that a prisoner have a serious medical need. Blackmore v. Kalamazoo Cnty.,
390 F.3d 890, 895 (6th Cir. 2004). “[A] medical need is objectively 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 readily recognize the necessity for a doctor’s attention.” Id. at 897 (internal
quotation marks omitted); see also Johnson v. Karnes, 398 F.3d 868, 874 (6th Cir. 2005).
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 culpable state of mind.” Farmer, 511 U.S. at 834; see also Wilson, 501 U.S. at 30203. 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. “[D]eliberate indifference describes a state of mind more blameworthy than
negligence.” Farmer, 511 U.S. at 835. A prison official cannot be found liable under the Eighth
Amendment unless he subjectively knows of an excessive risk of harm to an inmate’s health or
safety and also disregards that risk. Id. at 837. “[A]n official’s failure to alleviate a significant
risk that he should have perceived but did not” does not state a claim for deliberate indifference.
Id. at 838.
Dowdy does not sufficiently state a claim against any named defendant for lack of
medical care. The allegation that he was not taken to medical by Defendant Hassett until fifteen
minutes after the alleged assault does not establish deliberate indifference to Dowdy’s medical

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needs because Dowdy does not allege the extent of his injuries or suggest that a delay of only
fifteen minutes exacerbated those injuries.
III. CONCLUSION
The Court DISMISSES Dowdy’s complaint against the State of Tennessee, Smith and
Demetrious 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). Process will be issued for Defendant Hassett on Dowdy’s
Eighth Amendment claim for the use of excessive force.
It is ORDERED that the Clerk shall issue process for Defendant Hassett and deliver that
process to the U.S. Marshal for service. Service shall be made on Defendant Hassett 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 Dowdy shall serve a copy of every subsequent document he
files in this cause on the attorneys for Defendant Hassett or on any unrepresented Defendant.
Dowdy shall make a certificate of service on every document filed. Dowdy shall familiarize
himself with Federal Rules of Civil Procedure and this Court’s Local Rules.2
Dowdy shall promptly notify the Clerk, in writing, 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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