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Howard v. Purkey

February 6, 2008

TIMOTHY W. HOWARD, SR.
v.
OTTO PURKEY, ROOKIE INMAN, DOUG RICH, HAMBLEN COUNTY JAIL MEDICAL STAFF, BOBBY BULLINGTON, JAMES COFFEY, BOB OSBOURNE, DAVID CRIBLEY, BRAD CRAWFORD, BOBBY THARP, NURSE LINDA BROOKS, AND ALL EMPLOYEES AT HAMBLEN COUNTY JAIL



The opinion of the court was delivered by: J. Ronnie Greer United States District Judge

MEMORANDUM and ORDER

Timothy W. Howard, a prisoner confined in the Hamblen County Jail, brings this pro se civil rights action for injunctive and monetary relief under 42 U.S.C. § 1983. Plaintiff's application to proceed in forma pauperis is GRANTED. (Doc. 1). However, since plaintiff is a prisoner, he is ASSESSED the full filing fee of three hundred, fifty dollars ($350.00). 28 U.S.C. § 1914(a); McGore v. Wrigglesworth, 114 F.3d 601, 607 (6th Cir.1997).*fn1 The Court now must screen the complaint to determine whether it should be dismissed as frivolous, malicious or for failure to state a claim or because monetary damages are sought from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2) and § 1915A. Some of the claims have been grouped together for ease of discussion.

1. Excessive Force

2. Unconstitutional Conditions

3. Failure to Protect

In the first claim in this category, plaintiff alleges that on June 14, 2006, in an incident recorded on videotape, he was kicked and beaten while housed in the drunk tank; that, for 24-hours, he was deprived of water, socks, shoes, and underwear and received only one meal; and that one jailer, defendant Bobby Bullington, twisted his arm while another jailer looked on. The shift leader is defendant Doug Rich.

Plaintiff's second claim is that he asked defendant James Coffey, the Assistant Jail Administrator, to place him in protective custody, which the defendant refused to do. Afterwards, plaintiff was housed with felons in the overcrowded facility, his nose and ribs were broken, presumably by his fellow prisoners, and he was refused medical care for his injuries.

Plaintiff's third claim is that, on June, 24, 2006, as a result of his asking for medication, he was again placed nude in the drunk tank, where he turned blue in the near-freezing 35E temperature. This stint in the drunk tank lasted 33 hours and, during this time, he received one meal. He charges that defendants Osborne and Coffee refused to speak with him regarding an illegal network, supposedly in existence in the jail, which netted $10,000 per month and involved cover-ups, payoffs, bribery, mail fraud and money theft.

A constitution violation results when prison officials show deliberate indifference to an inmate's serious medical needs, Estelle v. Gamble, 429 U.S. 97, 104 (1976), or a substantial risk of serious harm to an inmate. Farmer v. Brennan, 511 U.S. 825, 834 and 842 (1994). An inmate's allegation that he was subjected to an unprovoked attack by prison guards states a claim under § 1983. Pelfrey v. Chambers, 43 F.3d 1034, 1037 ( 6th Cir. 1995). Moreover, jail conditions which involve the wanton and unnecessary infliction of pain and result in the serious deprivation of basic human needs violate the Eighth Amendment. Rhodes v. Chapman, 452 U.S. 337, 346-47 (1981). Claims one and two state colorable Eighth Amendment claims against defendants Bullington and Coffee. As to claim three, plaintiff gives no indication as to the identity of the person who placed him in the drunk tank merely for asking for his medications. Absent information linking or connecting a specific defendant to the supposed wrongdoing, plaintiff's contentions are conclusory. Conclusory allegations, as are these, do not state a claim for relief under § 1983. Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987). The allegations that defendants Osborne and Coffee refused to discuss plaintiff's accusations of illicit schemes and conduct at the jail do not state a claim either. The right to free speech, which, it must be noted, is limited for prisoners, also encompasses the freedom not to speak. See, e.g., Wooley v. Maynard, 430 U.S. 705, 714 (1977) ("[T]he right of freedom of thought protected by the First Amendment...includes both the right to speak freely and the right to refrain from speaking at all."). In any event, allegations of fraud in a civil rights complaint must be pled with particularity, see Fed. R. Civ. P. 9(b), and plaintiff's complaint is fatally lacking in this respect.

4. Conditions in E-4 Cell

This claim arose on July 7, 2007, when plaintiff reported that three felony prisoners were endangering his life and asked defendant Bullington to move him. Ultimately, he was moved by defendant Bobby Tharp to cell E-4 on lock down, where the water did not work, the drain was stopped up, water stood two inches deep on the floor, and there was no shower. Plaintiff remained in this cell 23 hours, without food or lunch. Two days earlier, plaintiff directed a request to defendant Rookie Inman, the Jail Administrator, to be moved to isolation, but received no response.

Arguably, plaintiff has alleged a claim for unconstitutional jail conditions against defendant Tharp. Rhodes, 452 U.S. at 346-47. However, unless there is some indication that an inmate is confronted with a substantial risk of serious harm, a supervisor's mere failure to act on plaintiff's request for a cell change does not violate the Constitution. See, e.g., Greene v. Barber, 310 F.3d 889, 899 (6th Cir. 2002). This is what happened here because plaintiff has not contended that defendant Inman knew that he faced a substantial danger of serious harm. See Farmer, 511 U.S. at 837. Logically, a defendant who has no knowledge of a condition cannot consciously disregard any attendant risk of serious harm to an inmate's health or safety.

5. - 8. Medical Care

The last contentions in the complaint relate to a denial of ...


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