E. CLIFTON KNOWLES, Magistrate Judge.
This matter is before the Court upon a Partial Motion to Dismiss filed by Defendants Corrections Corporation of America ("CCA"), Cherry Lindamood, Danny Dodd, Christopher McClain, Robert Cobble, Bill Morgan, Katherine Buttram, and Dewell Jamerson, Jr. ("Defendants"). Docket No. 62. Defendants have contemporaneously filed a supporting Memorandum of Law, arguing that: (1) Bill Morgan should be dismissed as a Defendant; (2) Dewell Jamerson, Jr. should be dismissed as a Defendant; (3) the official capacity claims against the CCA employees should be dismissed; (4) the claims that are barred by the applicable one year statute of limitations should be dismissed; (5) CCA cannot be held liable on the basis of respondeat superior; and (6) Plaintiff has failed to allege sufficient facts to support his state law claims of Intentional Infliction of Emotional Distress, Assault and Battery, Official Oppression, and Medical Malpractice, such that those claims should be dismissed. Docket No. 63.
Plaintiff has not responded to the instant Motion.
This is a pro se, in forma pauperis action filed pursuant to 42 U.S.C. §1983. See Docket Nos. 1, 6. Plaintiff filed his verified original 145 page Complaint on October 1, 2015, and his verified 162 page Amended Complaint on October 13, 2015, each alleging a myriad of state law claims and Eighth Amendment violations. Docket Nos. 1, 6. In the Memorandum Opinion issued upon initial review, Judge Sharp summarized the factual allegations of Plaintiff's verified Amended Complaint, as well as his prayer for relief, as follows:
Docket No. 17, p. 3-7.
For the reasons set forth below, the undersigned recommends that Defendants' Partial Motion to Dismiss (Docket No. 62) be GRANTED.
Fed. R. Civ. P. 12(b)(6) provides that a claim may be dismissed for failure to state a claim upon which relief can be granted. In order to state a claim upon which relief can be granted, a complaint must contain either direct or inferential allegations respecting all material elements to sustain a recovery under some viable legal theory. Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005). Conclusory allegations or legal conclusions masquerading as factual allegations will not suffice. Id. A complaint containing a statement of facts that merely creates a suspicion of a legally cognizable right of action is insufficient. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007). The "[f]actual allegations must be enough to raise a right to relief above the speculative level"; they must "state a claim to relief that is plausible on its face." Id. At 1965, 1974. See also, Ass'n of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545, 548 (6th Cir. 2007).
Moreover, the United States Supreme Court has recently addressed the appropriate standard that must be applied in considering a Motion to Dismiss for failure to state a claim. See Ashcroft v. Iqbal, 129 S.Ct. 1937, 137 L. Ed. 2d 868 (2009). The Iqbal Court stated in part as follows:
129 S.Ct. at 1949-1950, 173 L. Ed. 2d at 884 (citations omitted).
Section 1983 provides, in part, that:
Thus, in order to state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2254-55 (1988), citing Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913, 68 L. Ed. 2d 420 (1981) (overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 330-331, 106 S.Ct. 662, 88 L. Ed. 2d 662 (1986)); Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729, 1733, 56 L. Ed. 2d 185 (1978). The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power "possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." Id. at 49, 108 S.Ct. 2255, quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L. Ed. 1368 (1941).
42 U.S.C. § 1983 does not permit the imposition of liability based upon respondeat superior. Polk County v. Dodson, 454 U.S. 312, 325, 102 S.Ct. 445, 454, 70 L. Ed. 2d 509 (1981). See also, Monell v. Dep't of Soc. Serv., 436 U.S. 658, 694, 98 S. Ct. `, 2037, 56 L. Ed. 2d 611 (1978); Street v. Corrections Corp. of America, 102 F.3d 810, 818 (6th Cir. 1996).
In order for a defendant to be held liable in his individual capacity, a plaintiff must demonstrate that that defendant personally condoned, encouraged, or participated in the conduct that allegedly violated his rights. Birrell v. Brown, 867 F.2d 956, 959 (6th Cir. 1989) (citations omitted). See also, Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984) (citing Hays v. Jefferson County, 668 F.2d 869, 872-874 (6th Cir. 1982) (The supervisor must have "at least implicitly authorized, approved or knowingly acquiesced in" the misconduct.) Conclusory allegations are not enough. See Street, 886 F.2d at 1479. See also, Anderson, 477 U.S. at 257; Nix v. O'Malley, 160 F.3d 343, 347 (6th Cir. 1998); Lujan v. National Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 3188, 111 L. Ed. 2d 695 (1990); McDonald v. Union Camp Corp., 898 F.2d 1155, 1162 (6th Cir. 1990). Plaintiff must establish a "causal connection between the misconduct complained of and the official sued." Dunn v. State of Tennessee, 697 F.2d 121, 128 (6th Cir. 1982).
In complaints alleging federal civil rights violations under § 1983, "[a]n official capacity claim filed against a public employee is equivalent to a lawsuit directed against the public entity which that agent represents." Claybrook v. Birchwell, 199 F.3d 350, 355 n.4 (6th Cir. 2000) (citing Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 3105, 87 L. Ed. 2d 114 (1985)). See also, Frost v. Hawkins County Bd. of Educ., 851 F.2d 822, 827 (6th Cir. 1988). As such, when a public employee is sued in his or her official capacity, the claims are essentially made against the public entity. Id.
The Eighth Amendment provides that:
U.S. Const. amend. VIII.
The United States Supreme Court has held that the constitutional prohibition of "cruel and unusual punishments" forbids punishments that are incompatible with "the evolving standards of decency that mark the progress of a maturing society," or which "involve the unnecessary and wanton infliction of pain." Estelle v. Gamble, 429 U.S. 97, 102-03, 97 S.Ct. 285, 290, 50 L. Ed. 2d 251 (1976) (citations omitted).
In order to establish an Eighth Amendment claim, an inmate must satisfy a two-prong test: (1) the deprivation alleged must be objectively serious; and (2) the official responsible for the deprivation must have exhibited deliberate indifference to the inmate's health or safety. Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 1977, 128 L. Ed. 2d 811 (1994).
As discussed above, Defendants argue that: (1) Bill Morgan should be dismissed as a Defendant; (2) Dewell Jamerson, Jr. should be dismissed as a Defendant; (3) the official capacity claims against the CCA employees should be dismissed; (4) the claims that are barred by the applicable one year statute of limitations should be dismissed; (5) CCA cannot be held liable on the basis of respondeat superior; and (6) Plaintiff has failed to allege sufficient facts to support his state law claims of Intentional Infliction of Emotional Distress, Assault and Battery, Official Oppression, and Medical Malpractice, such that those claims should be dismissed. Docket No. 63. The undersigned will address contention each in turn.
As noted, in order to state a cognizable § 1983 claim against Defendant Morgan in his individual capacity, Plaintiff must show that Defendant Morgan had some direct, personal involvement in the alleged constitutional deprivation. See, e.g., Knott v. Sullivan, 481 F.3d 561, 574 (6th Cir. 2005). Because the only allegations Plaintiff makes against Defendant Morgan are that he was employed in the SCCF maintenance department and failed to properly repair his leaky pipe, and because Judge Sharp has dismissed Plaintiff's claims that he slipped and fell on the water from the leaky pipe, Plaintiff has failed to do so. Accordingly, Plaintiff's claims against Defendant Morgan should be dismissed and he should be terminated as a Defendant in this action.
As discussed above, in order for Plaintiff to hold Defendant Jamerson, Jr. liable in his individual capacity, Plaintiff must demonstrate that Defendant Jamerson, Jr. personally condoned, encouraged, or participated in the conduct that allegedly violated his rights; conclusory allegations are not enough. Birrell, 867 F.2d at 959; Bellamy, 729 F.2d at 421; Anderson, 477 U.S. at 257; Nix, 160 F.3d at 347; Lujan, 497 U.S. at 888; McDonald, 898 F.2d at 1162. When a complaint contains only conclusory allegations without any specific factual assertions upon which to base its allegations, the Complaint fails to state a claim upon which relief can be granted. Okolo v. Metro. Gov't, 892 F.Supp.2d 931, 943 (M.D. Tenn. 2012).
Plaintiff, in his Amended Complaint, fails to assert any factual allegations against Defendant Jamerson, Jr. See Docket No. 6. Absent such allegations, Plaintiff cannot sustain his individual capacity claims against him, and Defendant Jamerson, Jr. should be terminated as a Defendant in this action.
With regard to Plaintiff's official capacity claims against Defendants who are CCA employees, as noted, "[a]n official capacity claim filed against a public employee is equivalent to a lawsuit directed against the public entity which that agent represents." Claybrook, 199 F.3d at 355 n.4; Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994); Frost, 851 F.2d at 827. As such, when a public employee is sued in his or her official capacity, the claims are essentially made against the public entity. Id.
Where an entity is named as a defendant, an official capacity claim against its individual employees is redundant, and those claims should be dismissed. Foster v. Michigan, 573 Fed. Appx. 377, 390 (6th Cir. 2014); Faith Baptist Church v. Waterford Twp., 522 F. App'x 322, 327 (6th Cir. 2013). Because CCA is a named Defendant in this action, Plaintiff's official capacity claims against the CCA employee Defendants should be dismissed.
As Judge Sharp noted in his Memorandum Opinion filed November 12, 2015, the statute of limitations for § 1983 actions arising in Tennessee is one year. Docket No. 17, p. 11 (citing Tenn. Code Ann. § 28-3-104(a); Roberson v. Tennessee, 399 F.3d 792, 794 (6th Cir. 2005). Given the prison mailbox rule, for statute of limitations purposes in the instant Motion, Plaintiff filed his original Complaint in this action on September 25, 2015. Accordingly, any independent claims which Plaintiff avers arose prior to September 25, 2014 would be time-barred, and should be dismissed.
As an initial matter, CCA is a private corporation that contracts with the State to operate the penal facility. A private entity that contracts with the State to perform a traditional state function, such as operating a penal facility, acts under color of state law and may be sued under § 1983. Hicks v. Frey, 992 F.2d 1450, 1458 (6th Cir. 1993); Street v. Corrections Corp. of America, 102 F.3d 810, 814 (6th Cir. 1996). Thus, CCA is amenable to suit under § 1983.
The law is well-settled that respondeat superior does not provide a basis for liability under § 1983. See Bd. Of County Comm'rs v. Brown, 520 U.S. 397, 403 (1997); Monell v. Dept. of Soc. Serv., 436 U.S. 658, 690-91 (1978); Miller v. Calhoun County, 408 F.3d 803, 813 (6th Cir. 2005). In order for CCA to be held liable, therefore, Plaintiff must plead allegations, inter alia, that an "official policy or custom was adopted by the official makers of policy with `deliberate indifference' towards the constitutional rights of persons affected by the policy or custom." City of Canton v. Harris, 489 U.S. 378, 387-88, 109 S.Ct. 1197, 1204, 103 L. Ed. 2d 41 (1989). See also, Monell, 436 U.S. at 690-91 (In order to find a governmental entity liable, Plaintiff must establish that (1) he/she suffered a deprivation of a constitutionally protected interest, and (2) the deprivation was caused by an official policy, custom, or usage of the local governmental entity.). In other words, a plaintiff must show that some official policy, practice, or custom was the moving force behind the alleged constitutional deprivation. See Monell, 436 U.S. at 691; Miller, 408 F.3d at 813.
Additionally, CCA cannot be held liable for the actions or inactions of its supervisory officials simply as their employer unless a plaintiff can show that the supervisor either encouraged the specific incident of misconduct or had some direct, personal involvement in the alleged constitutional deprivation. See, e.g., Knott, 481 F.3d at 574; Poe v. Haydon, 853 F.2d 418, 429 (6th Cir. 1988). At a minimum, a plaintiff must show that the official at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending officers. Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999).
Plaintiff's rambling 162 page Amended Complaint avers claims against Defendant CCA and its supervisory employees under a wide variety of theories. For purposes of the instant Motion, Plaintiff's general claims against Defendant CCA that are neither tied to an official CCA policy, practice, or custom, nor based upon the action or inaction of its employees, should be dismissed.
Plaintiff, in his verified Amended Complaint, asserts a state law claim of intentional infliction of emotional distress ("IIED"). Docket No. 6. In order to establish an IIED claim, a plaintiff must prove that the complained-of conduct: (1) is intentional or reckless; (2) is so outrageous that it is not tolerated by a civilized society; and (3) results in serious mental injury. See Doe 1 ex rel. Doe v. Roman Catholic Diocese, 154 S.W.3d 22, 23 (Tenn. 2005).
Plaintiff avers that Defendants inflicted IIED upon him by: (1) "intentionally and knowingly refus[ing] to enforce the policy of STG activity in Housing units Columbia, Gemini and Apollo, while strictly enforcing them in Housing units Discovery and enterprise, and the Annex, while plaintiff was as signed [sic] to Columbia, resulted directly in his injuries and suffering"; (2) "intentionally and knowingly enforcing a policy that required Plaintiff to walk in the rain, on slippery concrete with his hands behind his back, [which] resulted directly in his injuries and suffering"; (3) "intentionally and knowingly enforcing a policy that required Plaintiff and other inmates to suffer "hardship, pain and misery" while incarcerated"; (4)"intentionally and knowingly enforcing a policy . . . that required Plaintiff to walk in a line with his hands outside of his pockets with no gloves, in freezing temperatures; [to] wait in line consistently outside in the rain for no reason, other then to make the inmates angry and to feel miserable; [and to] forcing Plaintiff to be awakened multiple times throughout the evening, purposefully subjecting him to willful sleep deprivation"; (5) "knowingly refusing to remove Plaintiff from cells wherein dangerous living conditions existed to wit: slippery wet floors and black mold" and forcing him to live in those conditions; and (6) "failing to render proper aid and medical treatment." Docket No. 6, p. 153-57.
Taking Plaintiff's allegations as true, Plaintiff has failed to demonstrate either that these actions are "so outrageous that [they are] not tolerated by a civilized society" or that they "resulted in serious mental injury." Accordingly, Plaintiff cannot sustain his IIED claim and it should be dismissed.
Plaintiff, in his verified Amended Complaint, asserts a state law claim of assault and battery. Docket No. 6. In Tennessee, the tort of assault is "any act tending to do corporal injury to another, accompanied with such circumstances as denote at the time an intention, coupled with the present ability, of using actual violence against the person" (Thompson v. Williamson Co., 965 F.Supp. 1026. 1037 (M.D. Tenn. 1997) (citations omitted)), while the tort of battery is "an intentional act that causes an unpermitted, harmful or offensive bodily contact" (Cary v. Arrowsmith, 777 S.W.2d 8, 21 (Tenn. Ct. App. 1989) (citations omitted)).
Plaintiff avers that Defendants committed assault and battery upon him by: (1) "intentionally and knowingly enforcing a policy that required Plaintiff to walk in the rain, on slippery concrete with his hands behind his back, result[ing] directly in his injuries and suffering"; (2) "intentionally and knowingly enforcing a policy that required Plaintiff and other inmates to suffer `hardship, pain and misery' while incarcerated"; and (3) "knowingly refusing to remove Plaintiff from cells wherein dangerous living conditions existed; to wit: slippery wet floors and black mold." Docket No. 6, p. 154-57.
Taking Plaintiff's allegations as true, Plaintiff has failed to demonstrate either that these actions "created reasonable apprehension of imminent physical harm" or "caused an unpermitted harmful or offensive bodily contact." Accordingly, Plaintiff cannot sustain his assault and battery claim and it should be dismissed.
Plaintiff, in his verified Amended Complaint, asserts that Defendants committed the "tort of official oppression." Docket No. 6, p. 157.
Despite Plaintiff's assertion, there is no such tort. "Official oppression" relates to a criminal statute. See Tenn. Code Ann. §39-16-403. Tenn. Code Ann. §39-16-403 does not provide for a private cause of action. See id. Accordingly, Plaintiff's "official oppression" claims should be dismissed.
Plaintiff, in his verified Amended Complaint, asserts that Defendants committed "the tort of medical malpractice" by "failing to render proper aid and medical treatment." Docket No. 6, p. 157.
In order to sustain a claim in Tennessee under the Medical Malpractice Act, Tenn. Code Ann. § 29-26-115 — § 29-26-122. Section 121 of that Act requires that, prior to filing suit, the plaintiff must send a notice to prospective defendants. Specifically, "[a]ny person . . . asserting a potential claim for medical malpractice shall give written notice of the potential claim to each health care provider that will be named a defendant at least sixty (60) days before the filing of a complaint." Tenn. Code Ann. § 29-26-121(a)(1). Plaintiff in the case at bar failed to do so. Accordingly, he cannot sustain this claim, and Plaintiff's medical malpractice claim should be dismissed.
For the reasons discussed above, the undersigned recommends that Defendants' Partial Motion to Dismiss (Docket No. 62) should be GRANTED.
Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14) days after service of this Report and Recommendation in which to file any written objections to this Recommendation with the District Court. Any party opposing said objections shall have fourteen (14) days after service of any objections filed to this Report in which to file any response to said objections. Failure to file specific objections within fourteen (14) days of service of this Report and Recommendation can constitute a waiver of further appeal of this Recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L. Ed. 2d 435 (1985), reh'g denied, 474 U.S. 1111 (1986); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.
