Edgerson v. West et al

Filing 8

ORDER DISMISSING COMPLAINT, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE. Signed by Judge James D. Todd on 5/29/19. (mbm)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
JAMES IVORY EDGERSON,
Plaintiff,
VS.
LISA WEST, ET AL.,
Defendants.

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No. 2:17-cv-2765-JDT-cgc

ORDER DISMISSING COMPLAINT,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE

On October 16, 2017, Plaintiff James Ivory Edgerson, who is incarcerated at
FCI La Tuna in Anthony, New Mexico, filed a pro se complaint on the form used for
commencing actions pursuant to 42 U.S.C. § 1983 and a motion to proceed in forma
pauperis. (ECF Nos. 1 & 2.) The complaint concerns events that occurred at the West
Tennessee Detention Facility (WTDF) in Mason, Tennessee, while Edgerson was a federal
detainee at the WTDF in custody of the U.S. Marshal Service. (ECF No. 1 at PageID 2.)
The Court issued an order on October 26, 2017, granting leave to proceed in forma
pauperis and assessing 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 Lisa West, WTDF Business Manager; Jeremy Hensley, Assistant Warden; and former
WTDF Warden Arvil Chapman.

Edgerson alleges that on June 16, 2017, Defendant West came to the warehouse
where Edgerson worked, went through his personal belongings, and threw into the trash
his Bible and other items. (ECF No. 1 at PageID 2.) West allegedly was recorded on video
throwing away Edgerson’s belongings and saying, “I’ll worry about going to hell later.”
(Id.) Edgerson alleges that West also reported her actions to Defendants Hensley and
Chapman. (Id.) Edgerson states he grieved the incident but received no response. (Id.)
Edgerson alleges he was fired for filing a grievance against West and has not been able to
obtain new employment. (Id.) He subsequently filed a second grievance about the firing.
(Id.) Edgerson alleges that “[t]hey stick together (Mrs. West, Warden).” (Id.)
Edgerson asserts that Defendant West’s actions violated his rights under the First
Amendment. (Id. at PageID 3.) He sues the Defendants in their official and individual
capacities and seeks $3 million in damages. (Id.)
The Court is required to screen prisoner complaints and to dismiss any complaint,
or any portion thereof, if the complaintC
(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 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). The Court
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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. Although 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 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)). Pro se litigants,
however, 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, 613 (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))).
Because Edgerson’s claims arose while he was a federal detainee at the WTDF, his
claims cannot be brought under 42 U.S.C. § 1983, which applies only to deprivations of
constitutional rights committed by a person acting under color of state law. Therefore, his
claims arise, if at all, under Bivens v. Six Unknown Fed. Agents, 403 U.S. 388 (1971).
Bivens provides a right of action against federal employees who violate an individual’s
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rights under the United States Constitution. “Under the Bivens line of cases, the Supreme
Court has recognized a cause of action against federal officials for certain constitutional
violations when there are no alternative processes to protect the interests of the plaintiff
and no special factors counseling against recognizing the cause of action.” Koubriti v.
Convertino, 593 F.3d 459, 466 (6th Cir. 2010).
Although Edgerson was a federal detainee when the events at WTDF occurred, the
WTDF is operated not by federal officials but by CoreCivic, a private prison corporation,
and the Defendants in this case are alleged to be CoreCivic employees. The Supreme Court
has held that a Bivens action may not be brought against private corporations that operate
prison facilities housing federal detainees and convicted prisoners. Corr. Servs. Corp. v.
Malesko, 534 U.S. 61 (2001). Therefore, Edgerson’s official-capacity claims, which must
be treated as having been brought against CoreCivic, fail to state a valid claim.
The Supreme Court also has declined to extend the Bivens remedy to actions brought
against “privately employed personnel working at a privately operated federal prison”
where the allegedly unconstitutional conduct “is of a kind that typically falls within the
scope of traditional state tort law.” Minneci v. Pollard, 565 U.S. 118, 131 (2012).
Additionally, the Supreme Court recently stated in Ziglar v. Abbasi that “the Court
has made clear that expanding the Bivens remedy is now a ‘disfavored’ judicial activity.”
137 S. Ct. 1843, 1857 (2017). Thus, when claims arise in a new Bivens context, “a Bivens
remedy will not be available if there are ‘special factors counselling hesitation in the
absence of affirmative action by Congress.’” Id. (quoting Carlson v. Green, 446 U.S. 14,
18 (1980)).
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In this case, Edgerson has alleged a First Amendment claim retaliation claim and,
although it is not clearly articulated, possibly a First Amendment Free Exercise claim.
However, the Supreme Court has never extended a Bivens remedy to any First Amendment
claim. See Reichle v. Howards, 132 S. Ct. 2088, 2093 n.4 (2012) (“We have never held
that Bivens extends to First Amendment claims.”) Indeed, the Ziglar Court noted that in
Bush v. Lucas, 462 U.S. 367, 390 (1983), it had declined to extend the implied damages
remedy of Bivens to a First Amendment retaliation claim. Ziglar, 137 S. Ct. at 1857.
Given that the Supreme Court has declined to recognize a Bivens remedy under the
First Amendment in any context, this Court is particularly reluctant to do so in this case
involving private prison employees. Therefore, the Court concludes that pursuant to the
decisions in Minneci and Ziglar, Edgerson has no plausible Bivens damages remedy against
the Defendants in their individual capacities.
For the foregoing reasons, Edgerson’s complaint is subject to dismissal in its
entirety for failure to state a claim.
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., 511 F. App’x 4, 5 (1st Cir. 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. 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
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reversed. If it is crystal clear that . . . amending the complaint would be futile, then a
sua sponte dismissal may stand.”); 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.
In conclusion, the Court DISMISSES Edgerson’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 Edgerson 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).

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 Edgerson would not be taken in
good faith.
The Court must also address the assessment of the $505 appellate filing fee if
Edgerson 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
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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, §§ 1915(a)-(b). Therefore, Edgerson 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 the PLRA and McGore 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 Edgerson, 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. See Coleman v. Tollefson, 135 S. Ct. 1759,
1763-64 (2015).
The Clerk is directed to prepare a judgment.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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