Tolbert v. Tennessee Department of Correction et al

Filing 10

ORDER DENYING PENDING MOTIONS, DISMISSING CLAIMS, AND GRANTING LEAVE TO AMEND. Signed by Chief Judge S. Thomas Anderson on 9/28/17. (mbm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
WILLIE TOLBERT,

)
)
Plaintiff,
)
)
VS.
)
)
STATE OF TENNESSEE;
)
NATTELY VOSS, Medical Director;
)
DENISE CLENNA, Nurse; TONY
)
PARKER, Commissioner; SHAWN
)
PHILIPS, MCCX Warden; C/O FNU
)
GLOVER: C/O FNU BEEVIS; WILLIAM )
REBURN, III; JONATHAN LEBO, WTSP )
Warden; SHARON ROSE; JONATHAN
)
BARTLETT, Sergeant; DWIGHT WELCH; )
WARREN JENNINGS; Inmate;
)
A.T.W. FNU FINCH; FNU BINCKLEY,
)
Counselor; TOM KESSLER, M.D.;
)
CAPTAIN FNU CHARLES; LISA
)
BROOKS; AND CASSANDRA HANNAH )
)
Defendants.
)

No. 2:17-cv-2137-STA-egb

ORDER DENYING PENDING MOTIONS, DISMISSING CLAIMS,
AND GRANTING LEAVE TO AMEND

On February 27, 2017, Plaintiff Willie Tolbert, an inmate at the West Tennessee State
Penitentiary (“WTSP”) in Henning, Tennessee, filed pro se a Complaint pursuant to 42 U.S.C.
§ 1983 accompanied by a motion to proceed in forma pauperis. The Court granted Tolbert 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. 7.) The Clerk shall record the
Defendants in this case as the Tennessee Department of Correction (“TDOC”); Nattely Voss,
Medical Director; Denise Clenna, Nurse; Tony Parker, TDOC Commissioner; Shawn Phillips,

Morgan County Correctional Complex (“MCCX”) Warden; C/O First Name Unknown (“FNU”)
Glover; C/O FNU Beevis; Williams Reburn, III; Jonathan Lebo, WTSP Warden; Sharon Rose;
Jonathan Bartlett, Sergeant; Dwight Welch; Warren Jennings, Inmate; A.T.W.1 FNU Finch; FNU
Binckley, Counselor; Tom Kessler, M.D.; Captain FNU Charles; Lisa Brooks; and Cassandra
Hannah.

Defendants are sued in their individual capacities except for Defendants Glover,

Beevis, and Reburn who are sued in their official capacities only.
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 Federal Rule of Civil Procedure 12(b)(6) pleadings standards
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). The Court
accepts the Complaint’s “well-pleaded” factual allegations as true and then determines whether
the allegations “plausibly suggest an entitlement to relief.’” Williams v. Curtin, 631 F.3d 380,
383 (6th Cir. 2011) (quoting Iqbal, 556 U.S. at 681). Conclusory allegations “are not entitled to
the assumption of truth,” and legal conclusions “must be supported by factual allegations.”
Iqbal, 556 U.S. at 679. Ultimately, a complaint need only contain “a short and plain statement of
the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Rule 8(a)(2)
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Tolbert’s Complaint identifies Finch with the letters “A.T.W.” but does not explain
what the abbreviation means. The Court uses the abbreviation here simply to reflect what
appears in the pleadings. The Court has no information about what the letters stand for.
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nevertheless requires factual allegations to make a “showing, rather than a blanket assertion, of
entitlement to relief.” Twombly, 550 U.S. at 555 n.3.
“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)). Even so, 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). And district courts are not required “to ferret out
the strongest cause of action on behalf of pro se litigants.” Young Bok Song v. Gipson, 423 F.
App’x 506, 510 (6th Cir. 2011). In the final analysis, a court “cannot create a claim which [a
plaintiff] has not spelled out in his pleading.” Brown v. Matauszak, 415 F. App’x 608, 612-13
(6th Cir. 2011).
Tolbert filed his Complaint on the official form for actions under 42 U.S.C. § 1983.
Section 1983 provides as follows:
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 . . . .
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).
Pursuant to Federal Rule of Civil Procedure 18(a), “[a] party asserting a claim . . . may
join, as independent or alternative claims, as many claims as it has against an opposing party.”

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Fed. R. Civ. P. 18(a). Rule 20(a)(2) provides that persons may be joined in one action as
defendants if:
(A) any right to relief is asserted against them jointly, severally, or in the
alternative with respect to or arising out of the same transaction, occurrence,
or series of transactions or occurrences; and
(B) any question of law or fact common to all defendants will arise in the
action.
Fed. R. Civ. P. 20(a)(2).
The United States District Court for the Eastern District of Michigan has succinctly summarized
the correct approach to joinder under the Federal Rules of Civil Procedure:
In considering whether joinder should be permitted, the court is mindful that
“the impulse is toward entertaining the broadest possible scope of action
consistent with fairness to the parties; joinder of claims, parties and remedies
is strongly encouraged.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715,
724 . . . (1966). This impulse, however, does not provide a plaintiff free
license to join multiple defendants into a single lawsuit where the claims
against the defendants are unrelated. See, e.g., Pruden v. SCI Camp Hill,
[252] F. App’x 436, 437 (3d Cir. 2007) (per curiam); George v. Smith, 507
F.3d 605, 607 (7th Cir. 2007); Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th
Cir. 1997). Thus, “[a] buckshot complaint that would be rejected if filed by a
free person—say, a suit complaining that A defrauded the plaintiff, B defamed
him, C punched him, D failed to pay a debt, and E infringed his copyright, all
in different transactions—should be rejected if filed by a prisoner.” George,
507 F.3d at 607.
Harris v. Gerth, No. 08-CV-12374, 2009 WL 368011, at *1 (E.D. Mich. Feb. 11, 2009).
“[M]ultiple claims against a single party are fine, but Claim A against Defendant 1 should not be
joined with unrelated Claim B against Defendant 2.

Unrelated claims against different

defendants belong in different suits.” George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007)
The Complaint in this case asserts numerous, unrelated claims against approximately
nineteen different Defendants arising out of Tolbert’s incarceration at two separate facilities. For
example, Tolbert’s claims include that he (1) was denied medical treatment for his toes; (2) he

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was wrongfully housed in supermax segregation at WTSP; (3) he had his personal property taken
or lost on two separate occasions by separate defendants; (4) he was denied sufficient heat and
adequate cleaning products at WTSP; (5) he received a false disciplinary report resulting in due
process violations at MCCX; (6) he was transferred from MCCX to WTSP in retaliation and as
part of a conspiracy against him; (7) he was injured by WTSP food service staff’s lack of
hygiene; (8) WTSP staff issued a false disciplinary report against him as an act of retaliation; (9)
his physical safety was endangered by WTSP staff’s failure to respond to an emergency call
button and by the facility’s overall lack of proper staffing; (10) he had to wait several days for
laundry to be cleaned; (11) he was verbally abused by WTSP staff; (15) he was injured by WTSP
staff’s failure to properly dispose of trash after meals; and (16) he had his due process rights
violated by a false disciplinary report.
Tolbert’s is “the kind of ‘buckshot complaint” that courts typically reject. Harris, 2009
WL 368011, at *1 (quoting George, 507 F.3d at 607)). If Tolbert wishes to sue on all of his
claims, he will necessarily have to bring more than one lawsuit, each accompanied by a separate
application to proceed in forma pauperis. See George, 507 F.3d at 607. Therefore, Tolbert must
decide which related claims to bring in this lawsuit, and he must file a new pleading setting forth
a short and plain statement of those claims. See Fed R. Civ. P. 8(a)(2). Because the claims in
the Complaint are not properly joined, Tolbert’s pro se Complaint is DISMISSED.
Tolbert is GRANTED leave to amend his Complaint in accordance with the Court’s
instructions. Any amendment must be filed within thirty (30) days after the date of this order.
The amended complaint will supersede the original complaint and must be complete in itself
without reference to the prior pleadings. The text of the complaint must allege sufficient facts to
support each claim without reference to any extraneous document.

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Any exhibits must be

identified by number in the text of the amended complaint and must be attached to the complaint.
All claims alleged in an amended complaint must arise from the facts alleged in the original
complaint or amended complaints. Tolbert may add additional defendants, provided that the
claims against the new parties are properly joined. Each claim for relief must be stated in a
separate count and must identify each defendant sued in that count. If Tolbert fails to file an
amended complaint within the time specified, the Court will enter judgment.
Tolbert’s other pending motions for writ of habeas corpus, which is actually a request to
testify on his own behalf, and for leave to file an amended complaint (ECF No. 3 & 5) are
DENIED without prejudice to re-file at the appropriate time once screening is complete.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE
Date: September 28, 2017.

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