Rogers v. Holloway et al

Filing 21

ORDER DENYING PENDING MOTIONS, 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 7/20/17. (Anderson, S. Thomas)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
DANNY E. ROGERS,
Plaintiff,
VS.
JAMES M. HOLLOWAY, ET AL.,
Defendants.

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No. 16-2334-STA-egb

ORDER DENYING PENDING MOTIONS, DISMISSING CLAIMS,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE
On February 8, 2016, Plaintiff Danny E. Rogers, an inmate at the South Central
Correctional Facility (“SCCF”) in Clifton, Tennessee, filed pro se a Complaint pursuant to
42 U.S.C. § 1983 accompanied by a motion to proceed in forma pauperis. Rogers’s Complaint
contains allegations against defendants at the West Tennessee State Penitentiary (“WTSP”) in
Henning, Tennessee. On May 12, 2016, the United States District Court for the Eastern District
of Tennessee granted Rogers 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 this matter to this Court for all further proceedings. The Clerk shall record the
defendants as Former Warden James M. Holloway (“Holloway”), Assistant Warden of Security
Stanley Dickerson (“Dickerson”), Lieutenant Scott Wilson (“Wilson”), and Correction Officer

(“C/O”) First Name Unknown (“FNU”) Scrubs (“Scrubs”).2 All defendants are sued in their
individual and official capacities.
BACKGROUND
Rogers alleges that on July 24, 2015, he was assigned to Unit 10, Bravo Pod, where
Scrubs was the assigned pod officer and Wilson was the unit manager. Rogers alleges Scrubs
had the responsibility of opening and closing the Bravo Pod front door, allowing inmates to enter
and leave the pod. Scrubs was also responsible for monitoring color coded wrist bands which
identified each inmate’s assigned housing unit and pod.
On this date, an inspection of uniforms and cells was conducted by Wilson. During
inspection, inmates were required to stand with their hands down at their sides and their cell
doors open. Rogers alleges that at the end of the inspection, three known gang members
assaulted him. (Id.) Two of the assailants wore white bands identifying them as being housed in
Bravo Pod, while the third wore a green band identifying his pod assignment as Alpha Pod. (Id.)
The inmate from Alpha Pod held Rogers while the other inmates stabbed him in the left shoulder
and lower back, puncturing Roger’s lung. (Id.) The Complaint alleges that Scrubs stood and
watched the incident for ten to fifteen seconds before pushing the emergency panic button, and
that he also failed to use his can of mace to break up the assault. (Id.) WTSP medical staff
examined Rogers’s injuries to determine the seriousness of his wounds and transferred Rogers to
the nearest hospital for treatment for his collapsed lung. (Id. at 7.)

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On April 11, 2016, and on September 28, 2016, Rogers filed motions to add defendants
from MCCX. (ECF No. 7, 15 & 16.) Allegations occurring at MCCX are properly litigated in
the United States District Court for the Eastern District of Tennessee. If Rogers wishes to pursue
these claims, he must seek relief in the proper district. Thus, all three motions are DENIED
without prejudice to raise the issues in the proper forum.
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Based on these factual allegations, Rogers contends that Scrubs and Wilson failed to
monitor the inmates’ identification bands and thereby failed to prevent the assault.

(Id.)

According to Rogers, each defendant knew WTSP was a violent and dangerous institution with a
history of inmates assaulting staff and other inmates, and that inmates housed in Unit 10 Alpha
Pod and Bravo Pod were the most problematic. (Id. at 8.) Rogers further alleges that Defendants
Holloway and Dickerson put Unit 10 under “strict control movement” for purposes of control
and monitoring. However, Holloway and Dickerson made the decision to remove from the unit
officers who had received specialized strike force training. Rogers contends this decision caused
the problems in Unit 10 to reoccur. (Id.) Rogers additionally alleges that he filed a grievance on
January 16, 2015, detailing problems with gang members in the penitentiary and that Dickerson
was aware of this issue. (Id. at 9, see also Grievance No. 10078, ECF No. 1-3 at 3-5.) On
February 3, 2015, Rogers also wrote a letter to Holloway about officials allowing inmates to be
in housing units to which they were not assigned. (Id., see also ECF No. 1-4.) Rogers seeks
compensatory and punitive damages against each Defendant (Id. at 10.)
SCREENING 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 pleading standards under Federal Rule of Civil Procedure 12(b)(6),

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announced in Ashcroft v. Iqbal, 556 U.S. 662, 677-79 (2009) and 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.”).
“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, 415 F. App’x 608, 612-13 (6th
Cir. 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’”); 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.”).
ANALYSIS

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I. Section 1983
Rogers filed his Complaint on the official 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). The Court holds that Rogers has failed to state a plausible claim for relief.
A. Official Capacity Claims
First, Rogers has alleged claims against Defendants in their official capacities. Claims
against individual Defendants in their official capacities are construed as claims against their
employer, the State of Tennessee. Plaintiff 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 Supreme Court has
construed the Eleventh Amendment 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
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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).
B. Failure to Investigate – Supervisors
Likewise, Rogers has no cause of action against Holloway and Dickerson for an alleged
failure to investigate or take remedial measures, to the extent they were aware of his grievances
and complaints. Rogers’s claims against Defendants Holloway and Dickerson appear to be due
to their supervisory roles. 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.” 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.

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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). 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.”). Defendants Holloway and Dickerson cannot be sued
merely because they failed to take action in response to Roger’s complaints. Therefore, Rogers’s
claims against Holloway and Dickerson are DISMISSED.
C. Eighth Amendment – Failure to Protect
Rogers’s claim that the Defendants failed to protect him from the attack by inmates 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). The objective
component requires that the deprivation be “sufficiently serious.” Id. 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,” id., or that he has been deprived of the
“minimal civilized measure of life’s necessities,” Wilson, 501 U.S. at 298. “The Supreme Court
has held that ‘prison officials have a duty . . . to protect prisoners from violence at the hands of
other prisoners.’” Bishop v. Hackel, 636 F.3d 757, 766 (6th Cir. 2011) (quoting Farmer, 511
U.S. at 834).

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To establish the subjective component of an Eighth Amendment violation, a prisoner
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. “[D]eliberate indifference
describes a state of mind more blameworthy than negligence.” Id. 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.”).
The Complaint alleges that Scrubs and Wilson improperly allowed an inmate into Bravo
Pod and that the inmate, with others, was involved in an assault on Rogers. Rogers further
alleges that Scrubs failed to intervene in a timely manner. However, the Complaint alleges no
facts to show that Scrubs or Wilson were aware, prior to the assault, that the inmates, two of
whom were actually assigned to Rogers’ pod, posed any significant risk of harm to Rogers. And

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even though Rogers contends that Scrubs did not use his can of mace, Rogers also alleges that
Scrubs pushed the panic button within fifteen seconds of the assault. While Rogers contends that
Scrubs should have acted faster, Rogers has essentially alleged that Scrubs acted negligently.
This is not enough to establish deliberate indifference. Therefore, Rogers’s claims against
Scrubs and Wilson are DISMISSED.
D. Pending Motions
On September 28, 2016, Rogers filed a motion for appointment of counsel. (ECF No.
14.) Pursuant to 28 U.S.C. § 1915(d), the “court may request an attorney to represent any such
person unable to employ counsel.”

As a general rule, counsel should be appointed in civil

cases only if a litigant has made “a threshold showing of some likelihood of merit.” Cooper v. A.
Sargenti Co., 877 F.2d 170, 174 (2d Cir. 1989). Because Rogers has not met the threshold
showing likelihood of success, the motion is DENIED.
On October 2, 2016, Rogers also filed two motions to garnish the defendants’ wages for
violating his rights. (ECF Nos. 17 & 18.) Because the Court is dismissing Rogers’s complaint,
the motions are DENIED as moot.
E. 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). In this case, the Court concludes that leave to amend is not warranted.
Rogers cannot cure the defects in his Complaint, and any attempt to amend would be futile.

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CONCLUSION
The Court DISMISSES Rogers’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). Leave to amend is
DENIED.
Pursuant to 28 U.S.C. §1915(a)(3), the Court must also consider whether an appeal by
Rogers 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 Rogers would not be taken in good faith.
The Court must also address the assessment of the $505 appellate filing fee if Rogers
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, Rogers
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

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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 Rogers, 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: July 20, 2017.

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