United States District Court, W.D. Tennessee, Western Division
REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION TO DISMISS AND/OR FOR SUMMARY JUDGMENT
CHARMIANE G. CLAXTON, Magistrate Judge.
Before the Court is Defendant Shelby County, Tennessee's Motion to Dismiss and/or Motion for Summary Judgment. (Docket Entry "D.E. #12"). For the reasons set forth herein, it is recommended that Defendant's Motion to Dismiss and/or Motion for Summary Judgment be GRANTED.
On April 22, 2014, Plaintiff filed a pro se Complaint for Violation of Civil Rights under 42 U.S.C. § 1983 (D.E. #1), alleging as follows:
I was in my cell June 4, 2013 when I was attacked by my cell-mate and was seriously injured. After contacting my pod officer informing him that I was jumped on, he saw the cuts and scrapes. He did not separate us out. Put us back in the cell together where I was assaulted once again. Injuring my neck and back-plus head. I was sent to the Med and he was charged with assault. I even tried to get the officer Mr. Kyle Wilson to come here before the fight broke out and he didn't budge.
(Compl. § IV). Plaintiff states that he "wrote grievances and talked to Internal Affairs" about the incident but that no actions were taken. (Compl. § II). As relief, Plaintiff seeks damages for his medical bills and also to be compensated for Defendant's negligence, including "pain and suffering" and "punitive damages." He also requests that Officer Wilson be fired and that the "speaker box" or "intercom" be replaced in that cell "so someone can be contacted next time in case of an emergency." (Compl. § V).
Plaintiff was granted leave to proceed in forma pauperis on April 24, 2014, and the Court completed its screening pursuant to 28 U.S.C. § 1915 and issued an Order to Issue and Effect Service of Process on June 24, 2014. (D.E. #5). Summons was returned executed on July 10, 2014 as to Shelby County, Tennessee. (D.E. #8). On August 22, 2014, after receiving an extension to respond to Plaintiff's Complaint, Defendant filed the instant motion.
Local Rules 12.1(b) and 56.1(b) require a party opposing a motion to dismiss or motion for summary judgment to file a response within twenty-eight days after the motion is served. Plaintiff did not file a timely response. On September 26, 2014, the Court issued an Order to Show Cause directing Plaintiff to respond within fourteen days of the entry of that order as to why the Magistrate Judge should not recommend that Defendant's Motion to Dismiss and/or Motion for Summary Judgment be granted. (D.E. #13). The Magistrate Judge advised that "Plaintiff's failure to respond to this Order will be deemed good grounds for such a recommendation."
II. Proposed Findings of Fact
Shelby County Divisions of Corrections' Inmate Handbook states that an inmate may not file a grievance "more than 30 days after the event in question." (Affidavit of Tonya Beasley ("Beasley Aff.") at 2). Plaintiff never filed a grievance regarding any June 4, 2013 incident. ( Id. at 3). Plaintiff did file a grievance regarding an incident on June 1, 2013, but he did not do so until October 14, 2013. ( Id. at 2-3). The allegations relating to his October 14, 2013 grievance appear to be the same as those alleged in his Complaint, as they pertain to an assault in his cell by his cellmate, his notification to Officer Wilson of the assault, and the repeated assault by his cellmate. ( Id. at Exh. 1).
III. Proposed Analysis
A. Motion to Dismiss for Failure to State a Claim
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that a claim may be dismissed for failure to state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). In addressing a motion to dismiss under Rule 12(b)(6), the court must construe the complaint in the light most favorable to plaintiff and accept all well-pled factual allegations as true. League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007). A plaintiff can support a claim "by showing any set of facts consistent with the allegations in the complaint." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563 (2007). This standard requires more than bare assertions of legal conclusions. Bovee v. Coopers & Lybrand C.P.A., 272 F.3d 356, 361 (6th Cir. 2001). "[A] formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. Any claim for relief must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Fed.R.Civ.P. 8(a)(2)). "Specific facts are not necessary; the statement need only give the defendant fair notice of what the....claim is and the grounds upon which it rests." Id. (citing Twombly, 550 U.S. at 555).
Nonetheless, a complaint must contain sufficient facts "state a claim to relief that is plausible on its face'" to survive a motion to dismiss. Twombly, 550 U.S. at 570. "The plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that defendant has acted unlawfully." Ashcroft v. Iqbal, 556 US. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 ...