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Terry v. Mills

United States District Court, W.D. Tennessee, Eastern Division

April 1, 2015

MARCUS TERRY a/k/a MARCUS BENSON a/k/a TORAIN BENSON, Plaintiff,
v.
CORPORAL JEFFREY MILLS, et al., Defendants.

ORDER OF DISMISSAL ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH AND ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

JAMES D. TODD, District Judge.

On April 7, 2014, Plaintiff Marcus Terry a/k/a Marcus Benson a/k/a Torian Benson, Tennessee Department of Correction prisoner number 22087, an inmate now confined at the West Tennessee State Penitentiary ("WTSP") in Henning, Tennessee, filed a pro se complaint pursuant to 42 U.S.C. § l983, along with a motion seeking leave to proceed in forma pauperis. (ECF Nos. 1 & 2.) On April 9, 2014, the Court entered an order granting leave to proceed in forma pauperis and assessing the filing fee. (ECF No. 3.) Plaintiff was previously confined at the Northwest Correctional Complex ("NWCX"). The Clerk shall record the defendants as Corporal Jeffrey Mills, Sergeant David Burkeen, Correctional Counselors Danny Ellison and Rhonda Chesser, Teacher Chris Birmingham, Corporal James Hyde, Unit Manager Jeff Bratton, and Captain Jerry Jones.

Plaintiff alleges that all defendants conspired to deny him of due process and equal protection by illegally convicting him of the disciplinary of assault on another inmate, increasing his security classification level, and decertifying him for parole review. (ECF No. 1 at PageID 2.)

Plaintiff alleges that Inmate Stephen Sheppard was released from protective custody onto Plaintiff's unit. ( Id. at PageID 6-7.) Plaintiff alleges that Sheppard started an argument that ended in an "altercation" with Plaintiff and another inmate. ( Id. at PageID 7.) Inmate Sheppard sustained a black eye and was moved to another unit. ( Id. ) Plaintiff was taken to punitive segregation pending investigation. ( Id. ) On March 20, 2013, Plaintiff was taken to Defendant Chesser's office to be interviewed by Defendant Mills about the incident. ( Id. at PageID 8.) Plaintiff contends that Mills told him that Sheppard said that Plaintiff and the other inmate attacked him and that the videotape supported Sheppard. ( Id. ) Plaintiff characterized the incident as a brief wrestling match and claimed the videotape should show Sheppard as the instigator. ( Id. ) Plaintiff alleges that Mills told him it did not look good with two black inmates beating up on a white inmate. ( Id. at PageID 9.) Plaintiff was moved to the close security unit the next day. ( Id. )

On March 26, 2013, a disciplinary charge was issued charging Plaintiff with assault. ( Id. ) On March 28, 2013, Defendant Chesser prepared a classification hearing notice and custody assignment form despite the lack of a disciplinary hearing and conviction. ( Id. at PageID 10.) On April 4, 2013, Plaintiff pled not guilty at the disciplinary hearing before Burkeen, Ellison, and Birmingham, but was convicted of assault. ( Id. ) Plaintiff contends that he was not allowed to call witnesses, view the videotape, or challenge the veracity of the confidential informant. ( Id. at PageID 10-12.) Plaintiff was sentenced to ten days in punitive segregation, to pay a five dollar ($5.00) fee, and to package restrictions for twelve months. ( Id. at PageID 12.)

Plaintiff alleges that Defendant Chesser attempted to re-classify him to close custody status on April 10, 2013. ( Id. ) Plaintiff requested his forty-eight hour notice and hearing and refused to sign the form. ( Id. at PageID 12-13.) On April 12, 2013, Defendant Bratton took Plaintiff to Defendant Chesser's office for reclassification. ( Id. at PageID 13-14.) Plaintiff protested that he had not received his notice in writing. ( Id. at PageID 14.) Defendant Bratton signed and dated the form, handed it to Plaintiff, and told Plaintiff he would be reclassified to close custody on April 15, 2013. ( Id. ) Plaintiff contends that his punitive segregation time expired on April 14, 2014 however, he was not permitted to return to general population. ( Id. ) Plaintiff contends that Defendant Bratton conspired with Defendant Jones to keep Plaintiff in punitive segregation until the reclassification took effect. ( Id. ) Plaintiff believes that, if returned to general population, his assigned counselor would not have permitted him to be reclassified to close custody. ( Id. at PageID 16.) On April 15, 2013, Plaintiff was reclassified as close custody as a result of the assault conviction. ( Id. at PageID 16-17.) On April 22, 2013, Plaintiff appealed the reclassification. ( Id. ) Warden Steward denied Plaintiff's appeal. ( Id. at PageID 18.)

Plaintiff was decertified for his August 1, 2013, parole grant hearing as a result of his reclassification to close custody. ( Id. ) In November 2013, Plaintiff was taken off close custody but remains decertified for a parole grant hearing for one year. ( Id. ) Plaintiff contends that Defendants treated him more harshly than white inmates who have been involved in similar situations. ( Id. at PageID 19-21.) Plaintiff seeks compensatory and punitive damages from Defendants.

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).

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 Atl. 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) (alteration in original). "[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. See Neitzke [ v. Williams ], 490 U.S. [319, ] 325, 109 S.Ct. at 1827 [(1989)]. Any complaint that is legally frivolous would ipso facto fail to state a claim upon which relief can be granted. See id. at 328-29, 109 S.Ct. 1827." Hill, 630 F.3d at 470.

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." Neitzke, 490 U.S. at 327, 109 S.Ct. 1827 (interpreting 28 U.S.C. § 1915). Unlike a dismissal for failure to state a claim, where a judge must accept all factual allegations as true, Iqbal, 129 S.Ct. at 1949-50, a judge does ...

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