Ra-El v. Shelby County Correction Center et al

Filing 36

ORDER granting 25 Motion to Dismiss for Failure to State a Claim; denying 27 Motion to Amend/Correct; granting 28 Motion to Dismiss for Failure to State a Claim; denying 31 Motion to Remand, and certifying that an appeal would not be taken in good faith. Signed by Judge Thomas L. Parker on 07/27/2018. (Parker, Thomas)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
KHALIQ RA-EL,
Plaintiff,
v.
SHELBY COUNTY CORRECTION
CENTER, SHELBY COUNTY, BILL
GUPTON, BILL SPEARS, DENNIS
TILLMAN, STEPHEN CRAIG,
Defendants. 

)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 2:16-cv-02082-TLP-tmp

ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS, DENYING
PLAINTIFFS’ MOTION TO AMEND, DENYING PLAINTIFFS’ MOTION TO
REMAND, CERTIFYING THAT APPEAL WOULD NOT BE TAKEN IN GOOD
FAITH, AND NOTIFYING PLAINTIFF OF APPELLANT FILING FEE
Plaintiff Khaliq Ra-El, an inmate confined in Shelby County Correctional Center
(“SCCC”), filed a pro-se civil action against Defendants in the Circuit Court of Tennessee for
the Thirtieth Judicial District at Memphis. (ECF No. 1.) Defendants then filed a Notice of
Removal under 28 U.S.C. §§ 1441 and 1446. (Id.) Ultimately, the Court dismissed this
Complaint, granting leave to amend. (ECF No. 22.)
Plaintiff then filed an Amended Complaint and, then, a second Amended Complaint.
This second Amendment served to supplement, rather than supersede, his first Amended
Complaint. (ECF Nos. 24 & 26.) After filing his second Amended Complaint, Plaintiff
moved to file an Amended Complaint that incorporated this second Amendment. (ECF No.
27.)

Plaintiff’s motion is DENIED. The Clerk shall record the defendants as Shelby
County, SCCC Director Bill Gupton, SCCC Administrator Bill Spears, SCCC Administrator
Dennis Tillman, and SCCC Supervisor Over Inmates Stephen Craig. Of note, Plaintiff has
named Defendants in their individual and official capacity.
BACKGROUND
In his first Amended Complaint, Plaintiff alleges that he did not receive adequate
recreational time. (ECF No. 24 at PageID 116.) He alleges that Defendants housed him with
no out-of-dorm activities and that he often went months with no recreation whatsoever. (Id.)
This, he alleges, caused psychological and physical injury. (Id.) Plaintiff also contends that
Defendant Gupton was aware of his recreational grievances and did nothing.1 (Id. at PageID
117.) Furthermore, Plaintiff alleges that Defendant Craig, the unit manager, also failed to
solve Plaintiff’s recreational grievances. (Id.)
In his second Amended Complaint, Plaintiff alleges that, because Defendant Shelby
County has no explicit recreational policy, it thus has a “code of silence” about SCCC’s
unconstitutional conditions. (ECF No. 26 at PageID 132–33.) Plaintiff also contends that
Defendants Gupton, Spears, and Tillman learned through many written and in-person
complaints, that he was not receiving adequate recreational time, and did nothing. (Id.)
As for Defendant Craig, Plaintiff contends that he (1) failed to provide him any
recreational time during the winter and summer months (2) failed to provide any out-of-dorm
activities (3) kept Plaintiff in a dorm with no outside views, and (4) only provided Plaintiff

1

According to Defendants, Defendant Gupton passed away after this action’s
commencement, specifically on or about June 1, 2018. (ECF No. 35.)
2

an average of twenty hours of recreation during his two-years as Unit Manager. (Id. at
PageID 133)
Lastly, Plaintiff alleges that Defendants issued him slip-on shoes that did not provide
support or secure footing, making it almost impossible to exercise. (Id. at PageID 134.)
This, he argues, led to his physical deterioration. (Id.)
Plaintiff now seeks an injunction ordering that Defendants (1) create a policy for
regular recreation at SCCC (2) make arrangements for Plaintiff to receive adequate clothing
and footwear for recreation, and (3) he seeks compensatory and punitive damages. (Id. at
PageID 135.)
SCREENING STANDARD
“[A] court shall review . . . a complaint in a civil action in which a prisoner seeks
redress from a governmental entity or officer or employee of a governmental entity.” 28
U.S.C. § 1915A(a). “On review, [a] court shall identify cognizable claims or dismiss the
complaint, or any portion of the complaint, if the complaint is frivolous, malicious, or fails to
state a claim upon which relief may be granted, or seeks monetary relief from a defendant
who is immune . . . .” Id. at §1915A(b).
On pleading-standard review, “[p]ro se complaints are held to less stringent standards
than formal pleadings drafted by lawyers and should therefore be liberally construed.”
Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (quotations omitted). Nevertheless, a
“complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Ashcroft v. Iqbal, 566 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see Engler v. Arnold, 862 F.3d 571, 575 (6th
Cir. 2017).

3

Though a court will certainly grant a motion to dismiss if a plaintiff has no plausible
claim for relief, a court must also review a complaint in the light most favorable to the
plaintiff. See Herhold v. Green Tree Serv., LLC, 608 F. App’x 328, 331 (6th Cir. 2015). “A
complaint should only be dismissed if it is clear to the court that ‘no relief could be granted
under any set of facts that could be proved consistent with the allegations.’” Id. (quoting
Trzebuckowski v. City of Cleveland, 319 F.3d 853, 855 (6th Cir. 2003)).
Similarly, frivolous claims will be dismissed under § 1915A(b). See §1915A(b).
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.
Hill v. Lappin, 630 F.3d 468, 471 (6th Cir. 2010) (quoting Neitzke v. Williams,
490 U.S. 319, 327–28 (1989). Furthermore, “pleadings that . . . are no more than
conclusions . . . are not entitled to the assumption of truth.” Iqbal, 566 U.S. at 679.
DISCUSSION
A.

Plaintiff’s Claims Against Shelby County Are Implausible and Unconvincing.
Section 1983 claims against municipalities concern 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 resolves Plaintiff’s claim against Shelby County.
A local government cannot be held responsible for a constitutional deprivation unless
there is a direct causal link between a municipal policy or custom and the alleged

4

constitutional deprivation. See Monell v. Dep’t of Soc. Serv., 436 U.S. 658, 691–92 (1978).
To establish 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. Mem. Police Dep’t, 8 F.3d 358, 364 (6th Cir. 1993)). At bottom, the policy
must be “the moving force of the constitutional violation.”
Plaintiff’s claims against Defendant Shelby County stem from its alleged “code of
silence about unconstitutional conditions at SCCC” and its “lack of policy requiring
recreation.” (ECF no. 26 at PageID 132–33.) Even though a court will liberally construe a
pro se complaint, these allegations are purely conclusory. Plaintiff’s allegations arise from
an alleged absence of a policy, to which Plaintiff provides no substantiating evidence. Of
course, the absence of evidence is not necessarily evidence of an absence—Defendant may
very well have a code of silence concerning constitutional violations at SCCC. But, the
Court cannot allow Plaintiff to pursue claims on this issue without further evidence that
Defendant Shelby County’s alleged code of silence is responsible for a particular
constitutional violation. See Collins, 503 U.S. at 121 (“[I]t is when execution of a
government's policy or custom, whether made by its lawmakers or by those whose edicts or
acts may fairly be said to represent official policy, inflicts the injury that the government as
an entity is responsible under § 1983.”). Thus, Plaintiff’s claims against Shelby County are
DISMISSED.
B.

Plaintiff’s Failure-to-Investigate Claims Fail as a Matter of Law.
A failure to investigate a prisoner’s grievances may support § 1983 supervisory

liability. See Walker v. Norris, 917 F.2d 1449, 1457 (6th Cir. 1990). But, Defendants

5

Gupton, Spears, and Tillman did, in fact, investigate Plaintiff’s claims for lack of recreation.
ECF No. 26 at PageID 133.) This claim is thus similar to Norris, which weighs in favor of
dismissal. See Walker, 917 F.2d at 1457 (affirming an entry for directed verdict because
Defendants investigated an inmate’s death). Defendants “personally appeared . . . to
determine if any recreation was being provided on several occasions.” (ECF No. 26 at
PageID 133.) Defendants appeared to review Plaintiff’s appeal in determining that Plaintiff
received sufficient recreation. (Id.) In light of Norris, the Court dismisses Plaintiff’s claim
for failure to investigate.
C.

Eighth Amendment Claims for Lack of Recreation Fail.
Plaintiff’s recreational-deprivation claim arises under the Eighth Amendment, which

prohibits cruel and unusual punishments. See U.S. Const. amend. VIII; Wilson v. Seiter, 501
U.S. 294, 296–302 (1991). An Eighth Amendment claim consists of both an objective and
subjective component. Farmer v. Brennan, 511 U.S. 825, 834 (1994); Williams v. Curtin,
631 F.3d 380, 383 (6th Cir. 2011).
To establish the objective component of an Eighth Amendment claim, a prisoner must
show that her deprivation is “sufficiently serious”—that she “is incarcerated under conditions
posing a substantial risk of serious harm,” Farmer, 511 U.S. at 834; Rhodes v. Chapman, 452
U.S. 337, 347 (1981) (stating that an Eighth Amendment violation occurs when a prisoner is
deprived of the “minimal civilized measure of life’s necessities.”). That said, the
Constitution “does not mandate comfortable prisons.” Rhodes, 452 U.S. at 349. “[R]outine
discomfort ‘is part of the penalty that criminal offenders pay for their offenses against
society.’” Hudson v. McMillian, 503 U.S. 1, 9 (1992) (quoting Rhodes, 452 U.S. at 347).

6

Thus, “extreme deprivations are required to make out a conditions-of-confinement claim.”
Id.
To establish the subjective component of an Eighth Amendment claim, a prisoner must
prove that the prison official acted with a “sufficiently culpable state of mind.” Farmer, 511
U.S. at 834. Specifically, the official must have acted with “deliberate indifference” to a
substantial risk that the prisoner would suffer serious harm. Farmer, 511 U.S. at 834; Holder
v. Saunders, 2017 WL 3401288, at *2 (6th Cir. 2017). To this point, “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.” Farmer, 511 U.S. at 834. In other words, “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.” Id.
“It is generally recognized that a total or near-total deprivation of exercise or
recreational opportunity, without penological justification, violates Eighth Amendment
guarantees.” Patterson v. Mintzes, 717 F.2d 284, 289 (6th Cir. 1983). But the Sixth Circuit
has ruled that confinement of inmates to their cells for twenty-three hours a day does not
violate the Eighth Amendment. See Argue v. Hofmeyer, 80 F. App’x 429, 430 (6th Cir.
2003). (emphasis added).
In the Sixth Circuit, there is no “set a minimum amount of time a prisoner must have
access to outdoor recreation.” Argue v. Hofmeyer, 80 F. App’x 429, 430 (6th Cir. 2003).
Here, Plaintiff alleges that he did not receive “adequate” recreational time. (ECF No. 26 at
PageID 133.) Even more, Plaintiff alleges that he, at times, went months without exercising
and that, when he did exercise, the prison did not issue him adequate footwear. (Id. at

7

PageID 133–34.) These allegations do not satisfy the Eighth Amendment’s objective
component.
Plaintiff concedes that Defendant Craig did, in fact, give Plaintiff recreational time.
(ECF No. 26 at PageID 133.) Perhaps Defendant Craig did not give Plaintiff as much
recreational time as Plaintiff wanted. But this does not rise to the level of depriving Plaintiff
of the “minimal civilized measure of life’s necessities.” Rhodes, 452 U.S. at 347. Eighth
Amendment violations represent considerable and borderline extreme deprivations. For
example, in Flanory v. Bonn, a prison official deprived an inmate of toothpaste for 337 days,
unsurprisingly resulting in oral health problems. See Flanory v. Bonn, 604 F.3d 249, 256
(6th Cir. 2010). Not being able to exercise for a few months, conversely, does not deprive
Plaintiff of a basic necessity.2
Plaintiff’s assertion of harm from SCCC’s recreation policy does not rise to the level
of an Eighth Amendment harm. That exercise may lengthen one’s lifespan is not the type of
harm on which Plaintiff may suffice the Eighth Amendment’s objective component. Farmer,
511 U.S. at 834; (ECF No. 26 at PageID 134.)
Furthermore, Plaintiff’s claims do not satisfy the Eighth Amendment’s subjective
component. Plaintiff acknowledges that Defendants Gupton, Spears, and Tillman
investigated Plaintiff’s grievances and determined that he was receiving adequate
recreational time. (Id. at PageID 133.) Plaintiff also acknowledges that Defendant Craig did,
in fact, give Plaintiff recreational time over the past year. (Id.) Thus, Defendants responded
to Plaintiff’s grievances, either by granting him recreational time or investigating whether

2

This is not to say that Plaintiff’s grievance lacks merit. To be sure, being confined to one’s
cell for days on end may take a toll on one’s health. Instead, the Court merely finds that this
harm does not rise to the level of an Eighth Amendment violation.
8

Plaintiff’s recreational time was adequate enough. (Id.) As a result, Defendants do not
appear deliberately indifferent to Plaintiff’s well-being, at least to the level necessary to
satisfy the Eighth Amendment’s subjective component. Farmer, 511 U.S. at 834; Holder v.
Saunders, 2017 WL 3401288, at *2 (6th Cir. 2017). Plaintiff’s Eighth Amendment claims,
then, cannot be sustained.
CONCLUSION
The Court GRANTS Defendants’ Motions to Dismiss (ECF Nos. 25 & 28),3
DISMISSES Plaintiff’s Complaint under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1),
DENIES Plaintiff leave to amend his Complaint, and DENIES AS MOOT Plaintiff’s Motion
to Remand.
Furthermore, under 28 U.S.C. §1915(a)(3), the Court should also consider whether an
appeal by Plaintiff here 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. 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.
As a result, it is CERTIFIED, under 28 U.S.C. §1915(a)(3), that any appeal here 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

3

Defendant’s Second Motion to Dismiss includes an alternative pleading seeking to strike
Plaintiff’s second amended complaint for failure to follow local rules. The Court declines to
address that argument because the complaint is dismissed for failure to state a claim.
9

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, 716 F.3d at
951. McGore sets out specific procedures for implementing the PLRA, 28 U.S.C. § 1915(a)–
(b).
Plaintiff is thus 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.
For analysis under 28 U.S.C. § 1915(g) of future filings, if any, by Plaintiff, this is the
second dismissal of one of his cases as either frivolous or for failure to state a claim. 4 This
“strike” shall take effect when judgment is entered. Coleman v. Tollefson, 135 S. Ct. 1759,
1763–64 (2015).
SO ORDERED, this 27th day of July, 2018.
s/ Thomas L. Parker
THOMAS L. PARKER
UNITED STATES DISTRICT JUDGE

4

See Bey v. Criminal Court of Tenn. for the 30th Judicial Dist. at Memphis, No. 14-2871-JDTdkv (W.D. Tenn. Sept. 11, 2015) (dismissed for failure to state a claim).
10