Walker v. Oldham et al
ORDER DISMISSING CLAIMS, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE. Signed by Chief Judge S. Thomas Anderson on 5/15/17. (Anderson, S. Thomas)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
ZACARIUS PEREUN WALKER.
BILL OLDHAM, ET AL.,
ORDER DISMISSING CLAIMS,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE
On May 9, 2016, Plaintiff Zacarius Pereun Walker (“Walker”), who is a pre-trial detainee
at the Shelby County Criminal Justice Complex (“the jail”) in Memphis, Tennessee, filed a pro
se complaint pursuant to 42 U.S.C. § 1983 accompanied by a motion to proceed in forma
pauperis. (ECF Nos. 1 & 2.) The Court granted Walker 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 Sheriff Bill Oldham,
Chief First Name Unknown (“FNU”) McGee, and PREA Ms. FNU Thomas.
Walker’s handwriting and language is difficult to decipher.
Walker alleges that
Defendant Thomas made a decision to put him in protective custody after Walker made several
complaints about being sexually and verbally harassed. Defendant Thomas made it seem as if
Walker was in harm’s way, which he was not. (Compl. at 2, ECF No. 1.) Walker contends that
he just wanted to stop being harassed by inmates while an officer was present. (Id.) Walker
alleges that the issue is that he is being housed in a hidden area and is locked down as if he is
being punished within the facility, all of which amounts to mental abuse. (Id.) Walker requests
to be housed in a facility where he fits in and to be paid for the many instances of mental abuse
he has endured. (Id. at 3.)
The Court is required to screen prisoner complaints and to dismiss any complaint, or any
portion thereof, 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 from such
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
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.,
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
Walker 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
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
I. Claims against Defendants Oldham and McGee
The Complaint contains no specific factual allegations against Defendants Oldham and
McGee. Legal conclusions are not sufficient to support a claim for violation of rights. 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. Furthermore, Walker has no claim
against either of the aforementioned Defendants merely because of their supervisory positions.
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 individual actions,
violated the Constitution.” Iqbal, 556 U.S. at 676.
There must be a showing that the supervisor encouraged the specific incident 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). Walker fails to
allege that either Defendant Oldham or McGee, through their own actions, violated Walker’s
II. Claims Based on Verbal Abuse
The gravamen of Walker’s claim is that he is the victim of name calling, what the Court
construes to mean verbal abuse. For a convicted prisoner, claims regarding a prisoner’s health
and safety arise under the Eighth Amendment, which prohibits cruel and unusual punishments.
See Wilson v. Seiter, 501 U.S. 294 (1991). For pre-trial detainees, “the ‘cruel and unusual
punishment’ proscription of the Eighth Amendment to the Constitution does not apply,” because
“as a pre-trial detainee [the plaintiff is] not being punished.’” Cuoco v. Moritsugu, 222 F.3d 99,
106 (2d Cir. 2000). Instead, pre-trial detainees held in state custody are protected against
mistreatment by prison officials under the Due Process Clause of the Fourteenth Amendment.
See Caiozzo v. Koreman, 581 F.3d 63, 69 (2d Cir. 2000); Liscio v. Warren, 901 F.2d 274, 275-76
(2d Cir. 1990). However, even though it appears that Walker was a pre-trial detainee at the time
of the alleged abuse, his claims will be analyzed under Eighth Amendment principles because
the rights of pre-trial 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)).1
The Supreme Court held, in Kingsley v. Hendrickson, 135 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 pre-trial detainees and convicted prisoners. See
Morabito v. Holmes, 628 F. App’x 353, 357-58 (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 from the appellate courts, this Court will continue to apply the deliberate indifference
analysis to claims concerning a pre-trial detainee’s health and safety.
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 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-ofconfinement claim.” Id.
“Defamatory” comments do not satisfy the objective component of an Eighth
Amendment claim. See, e.g., Pasley v. Conerly, 345 F. App’x 981, 984 (6th Cir. 2009); Jones
Bey v. Johnson, 248 F. App’x 675, 677-78 (6th Cir. 2007) (no Eighth Amendment claim for
prison guard’s “use of racial slurs and other derogatory language”); Miller v. Wertanen, 109 F.
App’x 64, 65 (6th Cir. 2004) (a guard’s verbal threat to sexually assault an inmate “was not
punishment that violated [the prisoner’s] constitutional rights”); Johnson v. Unknown Dellatifa,
357 F.3d 539, 546 (6th Cir. 2004) (“harassment and verbal abuse . . . do not constitute the type of
infliction of pain that the Eighth Amendment prohibits”); Johnson v. Moore, 7 F. App’x 382, 384
(6th Cir. 2001) (“Allegations of verbal harassment and verbal abuse by prison officials toward an
inmate do not constitute punishment within the meaning of the Eighth Amendment. Nor do
allegations of verbal harassment rise to the level of unnecessary and wanton infliction of pain
proscribed by the Eighth Amendment.” (citation omitted)); Owens v. Johnson, No. 99-2094,
2000 WL 876766, at *2 (6th Cir. June 23, 2000) (“The occasional or sporadic use of racial slurs,
although unprofessional and reprehensible, does not rise to a level of constitutional magnitude.
The petty exchanges of insults between a prisoner and guard do not amount to constitutional
torts.” (citation omitted)); Ivey v. Wilson, 832 F.2d 950, 955 (6th Cir. 1987) (per curiam)
(holding that verbal abuse or harassment does not constitute punishment under the Eighth
Amendment); Miles v. Tchrozynski, No. 2:09-CV-11192, 2009 WL 960510, at *1 (E.D. Mich.
Apr. 7, 2009) (“Even verbal threats by a corrections officer to assault an inmate do not violate an
inmate’s Eighth Amendment rights. Verbal threats and abuse made in retaliation for filing
grievances are likewise not actionable.” (citation omitted)). Based on this well-established
authority, Walker’s claims regarding verbal abuse are dismissed.
III. Claims Regarding Cell Assignment
Walker next alleges that Defendant Thomas wrongfully assigned him to protective
custody. This Court does not have the authority to supervise classification and assignment of
inmates. An inmate does not have a constitutionally protected right to be assigned to a particular
prison, security classification, or housing assignment.
Olim v. Wakinekona, 461 U.S. 238
(1983); Meachum v. Fano, 427 U.S. 215 (1976); Montanye v. Haymes, 427 U.S. 236 (1976). See
Sandin v. Conner, 515 U.S. 472, 484-87 (1995) (confinement in particular part of prison or jail
does not implicate due process absent “atypical and significant hardship” “in relation to the
ordinary incidents of prison life”).
For the foregoing reasons, Walker’s complaint is dismissed in its entirety for failure to
state a claim upon which relief can be granted.
IV. 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
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 concludes that leave to amend is not warranted.
The Court DISMISSES Walker’s complaint as to the Defendants 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).
Leave to amend is DENIED because the deficiencies in Walker’s complaint cannot be cured.
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, 716 F.3d at 951. McGore sets
out specific procedures for implementing the PLRA, 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.
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, 135 S. Ct. 1759, 1763-64 (2015).
The Clerk is directed to prepare a judgment.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE
Date: May 15, 2017.
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