Parks v. Lebo et al

Filing 9

ORDER PARTIALLY DISMISSING COMPLAINT AND DIRECTING ISSUANCE AND SERVICE OF PROCESS. Signed by Chief Judge S. Thomas Anderson on 6/30/17. (Anderson, S. Thomas)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
_____________________________________________________________________________
BRUCE PARKS, JR.,

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Plaintiff,
vs.
JONATHAN LEBO, Warden, and
SGT. COCARHAN,
Defendants.

No. 2:16-cv-2862-STA-egb

ORDER PARTIALLY DISMISSING COMPLAINT AND
DIRECTING ISSUANCE AND SERVICE OF PROCESS
On October 31, 2016, Plaintiff Bruce Parks, Jr. (“Parks”), an inmate at the Northeast
Correctional Complex (“NECX”), in Mountain City, Tennessee, filed pro se a Complaint for the
violation of his civil rights pursuant to 42 U.S.C. § 1983. (ECF No. 1.) After receiving an order
from the Court (ECF No. 3), Parks filed a motion to proceed in forma pauperis on November 16,
2016. (ECF No. 4.) The Court granted 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. 5). The acts alleged in the Complaint occurred when Parks was an inmate at the West
Tennessee State Penitentiary (“WTSP”) in Henning, Tennessee. Thus, venue is proper in this
Court. The Clerk shall record the Defendants as WTSP Warden Jonathan Lebo and Sergeant
First Name Unknown (“FNU”) Cocarhan.
BACKGROUND
Parks alleges that on August 12, 2016, he was awakened by three staff members, Cpt.
Middleton and Lt. Miller, who are not parties to this action, and Defendant Sgt. Cocarhan. The

staff members told Parks to place handcuffs on and then moved him from his cell while his
property was removed from his cell. (Compl. at 5, ECF No. 1.) When Parks inquired why this
was happening, Cpt. Middleton told Parks that Officer Hudson had stated Parks had gotten
semen on her. (Id.) Parks contends that this allegation was never reported, and there was no
evidence of such conduct. (Id.) When Parks came back to his cell, still in handcuffs, he was told
to put his knees on the bunk. (Id.) Park alleges that at this time Defendant Sgt. Cocarhan hit him
a number of times, verbally and mentally abused him, and then put a tazer to Parks head,
threatening Parks to give him one reason why he should not send Parks to the emergency room.
(Id.) Parks further contends that Defendant Sgt. Cocarhan called Parks a sex offender and told
Parks that he did not have any rights. (Id.) After the assault Parks was told not to move while
the handcuffs were removed, and then the officers walked out. (Id.)
Parks contends he was bleeding the next morning and was asked by Lt. Miller, who is not
a party to this complaint, what happened. (Id.) After Parks told her about the assault, Lt. Miller
got medical treatment for Parks, and Lt. Barloc took photographs of Parks’s injuries. (Id.) Lt.
Miller and other officers witnessed this process. (Id.) Parks was then taken to an emergency
room outside of WTSP. (Id.) Upon his return to WTSP, Parks filed a grievance. (Id.) Parks
alleges that because he is in lockdown and in the SMU program, he is not able to ensure that the
grievance was filed. (Id.) Parks seeks compensatory and punitive damages in the amount of
$30,000. (Id. at 6.)
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

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(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 standards under Fed. R. Civ. P. 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), are applied.
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

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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
pursue.”).
ANALYSIS
Parks filed his Complaint on the official form for actions under 42 U.S.C. § 1983.
Section 1983 provides:

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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).
I. Claims Against Defendant Lebo (Twombly/Supervisor)
As an initial matter, the Complaint contains no factual allegations against Defendant
Lebo. 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, Parks does
not have a claim against Defendant Lebo in his capacity as WTSP Warden. 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, has 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.

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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); 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.”). Therefore, Parks’s
claims against Defendant Lebo are DISMISSED.
II. Eighth Amendment Claims
Parks alleges that Defendant Cocarhan hit him as well as subjected him to mental and
verbal abuse and threats.

For a convicted prisoner, such claims arise 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); 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

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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.
Claims for mental and verbal abuse and threats 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

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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)).
The Supreme Court has held by contrast 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).

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Id. at 9-10. For purposes of screening, the Court holds that Parks has alleged a plausible claim
for the violation of his Eighth Amendment rights against Defendant Sgt. Cocarhan.

The

Complaint alleges that Sgt. Cocarhan hit Parks repeatedly while Parks was still handcuffed and
kneeling on his bunk. This allegation states a plausible claim for relief.
CONCLUSION
The Court DISMISSES Parks’s claims against Defendant Lebo 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 Cocarhan on Parks’s Eighth Amendment claim for the use
of excessive force.
It is ORDERED that the Clerk shall issue process for Defendant Sgt. Cocarhan and
deliver that process to the U.S. Marshal for service. Service shall be made on Defendant Sgt.
Cocarhan 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 Parks shall serve a copy of every subsequent document he
files in this cause on the attorney for Defendant Sgt. Cocarhan or on any unrepresented
Defendant. Parks shall include a certificate of service on every document filed. Parks shall
familiarize himself with Federal Rules of Civil Procedure and this Court’s Local Rules. 1 Parks
shall promptly notify the Clerk, in writing, of any change of address or extended absence.

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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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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/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE
Date: June 30, 2017.

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