The opinion of the court was delivered by: J. Ronnie Greer United States District Judge
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendants' Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, [Doc. 8]. The pro se plaintiffs have responded to the defendants' motion, [Doc. 12]. Attached to the response is the affidavit of each plaintiff. Because the plaintiffs are acting pro se, and because they assert in their response to the defendants' motion that they are willing to amend their complaint, the Court will treat these affidavits as an attempt by the pro se plaintiffs to amend their complaint. For the reasons which follow, the motion of the defendants will be granted in part and denied in part.
I. Applicable Legal Standard
A motion to dismiss under Rule 12(b)(6) requires the Court to construe the complaint in the light most favorable to the plaintiffs, accept all the complaint's factual allegations as true, and determine whether the plaintiffs undoubtedly can prove no set of facts in support of the claims that would entitle them to relief. Meador v. Cabinet for Human Resources, 902 F.2d 474, 475 (6th Cir.), cert. denied, 498 U.S. 867 (1990). The Court may not grant such a motion based upon a disbelief of a complaint's factual allegations. Lawler v. Marshall, 898 F.2d 1196, 1199 (6th Cir.1990). The Court must liberally construe the complaint in favor of the party opposing the motion. Miller v. Currie, 50 F.3d 373, 377 (6th Cir.1995). However, the complaint must articulate more than a bare assertion of legal conclusions. Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir.1988). "[The] complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory." Id. (citations omitted).
The following facts, taken as true, are set forth in the plaintiffs' original complaint and the affidavits of the plaintiffs.
The plaintiff, Alfretta Renee Johnson ("Johnson"), is a white, 37 year old female resident of Sullivan County, Tennessee. Johnson co-habits with plaintiff, Mack Edward Scott ("Scott"), who is a 52 year old black male resident of Sullivan County, Tennessee. Johnson was an inmate at the Sullivan County Jail from February 10, 2006 through July 12, 2006 and at the Sequatchie County, Tennessee Jail from July 13, 2006 through October 18, 2006.*fn1 Johnson has now completed a 12 month term of probation which began on October 19, 2006.
An inmate work program is operated at the Sullivan County Jail. The program includes a work program for inmates who attain trusty status and female inmates may apply for transfer to the Johnson City City Jail-Women's Work Camp ("women's work camp"). Inmate work assignments include "cell housekeeping, hall, kitchen, car wash, dog pound, garage, maintenance crew, road crew and cleanup crew." Only inmates who meet certain established criteria may apply for participation in the inmate work program. Johnson met all of the criteria to be considered for the inmate work program and had previously had trusty status and transfer to the women's work camp on prior stays at the Sullivan County Jail.
During her most recent stay at the Sullivan County Jail, Johnson requested trusty status and requested transfer to the women's work camp but never received a written response. Several inmates who were housed with Johnson had also been denied trusty status. Johnson inquired of several corrections officers who were employed at the Sullivan County Jail about her request to be a trusty and those officers expressed "concern" about her not making trusty. A corrections officer later told Johnson that the defendant Hensley had indicated that Johnson would never again be a trusty in the jail "due to the fact I had been in and out numerous times." According to Johnson, this was said only after Hensley found out she was dating a black man. Also, at the time of Johnson's transfer to Sequatchie County, Tennessee Jail a corrections officer approached her and said "Your Blackman has a long way to go to see you now!".
While Johnson's request for the inmate work program was pending, Scott, her boyfriend, left voice mail messages with officials at the Sullivan County Jail expressing Johnson's excitement about the opportunity to be transferred to the women's work camp. Scott also wrote a letter to Sheriff Anderson to inquire as to why Johnson had not been made a trusty or transferred to the women's work camp. Defendant Hensley responded to the letter to the Sheriff in a "condescending and racist" manner and threatened retaliation by transferring Johnson to a Nashville prison. Scott wrote Anderson a second letter on June 26, 2006 and objected to what he called the racist and threatening nature of the first response. Scott also asked for a meeting with the Sheriff. He apparently received no response and his request for a meeting went unheeded. Prior to Johnson's transfer to the Sequatchie County Jail on July 12, she was subjected to increased inspections and searches and there were increased unit wide drug tests.
Tennessee Department of Corrections inmates are compensated for good behavior by being awarded eight days per month off their sentence. A trusty at the Sullivan County Jail is compensated for good behavior by being awarded thirty days per month off their sentence and inmates working at the women's work camp also receive thirty days per month off their sentence.
According to Johnson, a corrections officer approached her in March, 2004 and requested that she meet him after her release at a location in Blountville, Tennessee and also made comments to the effect of "I have a nice hotel I would like to take you to". She filed a complaint about the incident, the incident was investigated and no disciplinary/administrative action was taken against the corrections officer. Johnson now believes that she "might" be the victim of discrimination by the staff of the Sullivan County Jail as retaliation for her complaint. Johnson also claims that racial discrimination against black inmates was "blatant and openly practiced" at the Sullivan County Jail and that there was a routine practice of transferring inmates whose family staff of the jail felt were a problem. Johnson also complains of a situation where a highly qualified black applicant for a deputy position with the sheriff's department had been denied employment because he was married to a white woman and that employees had openly bragged about not hiring him because of his interracial marriage.
Scott, a self described community "activist" in Northeast Tennessee and Southwest Virginia, claims to have had a long standing rivalry with the sheriff of Sullivan County, dating back to the days when the sheriff was a Kingsport, Tennessee police officer. Scott apparently made numerous complaints to the Kingsport governing board concerning matters involving the police department and details his role in "rallying a large contingent of the black community" in support of a young, black defendant involved in a criminal case in 1995. He also alleges an incident in March, 2006, while waiting to visit Johnson, in which he scrambled to obtain a preferred seat ahead of another visitor, a white female, which led the white female to angrily curse and scream at Scott. As a result of the incident, he received a call from an on duty officer at the Sheriff's department who questioned him about the incident and suggested that he could be "brought up on charges" for that kind of conduct. According to Scott, his response was that he would "not tolerate being victimized by white males that had been enlisted by a white female who could not victimize me by herself. That type of racism is intolerable and unacceptable." Scott assumes that it was reported to the "chain of command" in the Sheriff's office that he had called the Sheriff's office a "racist institution."
Scott alleges that, because Johnson was "wrongfully transferred" to the Sequatchie County Jail, he incurred additional expenses for phone calls, trips to Sequatchie County and the additional cost of providing various items of clothing and supplies to Johnson while at the Sequatchie County Jail. He also alleges lost income because Johnson did not make trusty. Scott ...