United States District Court, W.D. Tennessee, Western Division
ORDER DISMISSING COMPLAINT AND GRANTING LEAVE TO AMEND
JAMES D. TODD, District Judge.
On September 11, 2014, Plaintiff Lavell Pennington, booking number 13111350, a pretrial detainee at the Shelby County Criminal Justice Complex ("Jail") in Memphis, Tennessee, filed a pro se complaint pursuant to 42 U.S.C. § 1983, accompanied by a motion seeking leave to proceed in forma pauperis. (ECF Nos. 1 & 2.) In an order issued on September 12, 2014, the Court granted leave to proceed in forma pauperis and assessed 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 Shelby County, the State of Tennessee, Chief First Name Unknown ("FNU") Moore, Shelby County Mayor Mark Luttrell, Tennessee Governor Bill Haslam and Memphis Mayor AC Wharton.
The complaint alleges that, on August 1, 2014, the fourth floor at the Jail was locked down because a work crew was repainting and removing rust from the shower area. Before painting, the workers used a sander to remove or smooth over areas that were rusted or moldy. Because of the rust debris that spread throughout the pod, Plaintiff had a severe asthma attack. Plaintiff and several other inmates asked to be taken to another part of the Jail so they would not be exposed to the harmful debris, but Officer Walker, who is not a party to this action, told him, "Hell naw [sic]." (ECF No. 1 at PageID 2-3.)
Plaintiff has also submitted a statement in which he alleges that proper ventilation was not used while chemicals were being sprayed throughout the fourth floor. Plaintiff suffers from chronic asthma. Because he was not moved, Plaintiff's asthma flared up "and since then its been hard for [him] to breathe without spitting out small tracks of blood." ( Id. at PageID 4.) Plaintiff seeks medical care and money damages. ( Id. at PageID 3.)
On September 6, 1014, Plaintiff submitted a copy of an inmate grievance that he had filed. (ECF No. 5.) On September 28, 2014, Plaintiff filed a document titled "Statement of Fact" that reiterates the factual allegations in the complaint. (ECF No. 6.) The document is signed by Plaintiff and sixteen other inmates and is accompanied by a copy of the Jail's mission statement. ( Id. at 5.)
On October 14, 2014, Plaintiff filed another copy of the § 1983 form complaint that addresses the events at issue in his original complaint. That filing, which was docketed by the Clerk as an amended complaint, appears intended to supplement, rather than to supersede, the original complaint. (ECF No. 7.) The Defendants named in the amended complaint are Shelby County, Mayors Luttrell and Wharton, and Amy Weirich, the District Attorney General for the Thirtieth Judicial District at Memphis. The Clerk shall record Weirich as an additional Defendant. The amended complaint alleges that, since the events of August 1, 2014, Plaintiff's nose has been bleeding severely. (ECF No. 7 at PageID 27-28.) The prayer for relief seeks compensatory damages. ( Id. at PageID 28.)
The Court is required to screen prisoner complaints and to dismiss any complaint, or any portion thereof, if the complaint-
(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). "Accepting all well-pleaded allegations in the complaint as true, the Court consider[s] the factual allegations in [the] complaint to determine if they plausibly suggest an entitlement to relief.'" Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (quoting Iqbal, 556 U.S. at 681). "[P]leadings that... are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Iqbal, 556 U.S. at 679; see also Twombly, 550 U.S. at 555 n.3 ("Rule 8(a)(2) still requires a showing, ' rather than a blanket assertion, of entitlement to relief. Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only fair notice' of the nature of the claim, but also grounds' on which the claim rests.").
"A complaint can be frivolous either factually or legally." Hill, 630 F.3d at 470 (citing Neitzke v. Williams, 490 U.S. 319, 325 (1989)). "Any complaint that is legally frivolous would ipso facto fail to state a claim upon which relief can be granted." Id. (citing Neitzke, 490 U.S. at 328-29).
Whether a complaint is factually frivolous under §§ 1915A(b)(1) and 1915(e)(2)(B)(i) is a separate issue from whether it fails to state a claim for relief. Statutes allowing a complaint to be dismissed as frivolous give judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless. Unlike a dismissal for failure to state a claim, where a judge must accept all factual allegations as true, a judge does not have to accept "fantastic or delusional" factual allegations as true in prisoner complaints that are reviewed for frivolousness.
Id. at 471 (citations and internal quotation marks omitted).
" 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.Appx. 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))); Payne v. Sec'y of Treas., 73 F.Appx. 836, 837 (6th Cir. 2003) (affirming sua sponte dismissal of complaint pursuant to Fed.R.Civ.P. 8(a)(2) and stating, "[n]either this court nor the district court is required to create Payne's claim for her"); cf. Pliler v. Ford, 542 U.S. 225, 231 (2004) ("District judges have no obligation to act as counsel or paralegal to pro se litigants."); Young Bok Song v. Gipson, 423 F.Appx. 506, 510 (6th Cir. 2011) ("[W]e decline to affirmatively require courts to ferret out the strongest cause of action on behalf of pro se litigants. Not ...