United States District Court, W.D. Tennessee, Western Division
ORDER OF PARTIAL DISMISSAL AND ORDER TO ISSUE SERVICE OF PROCESS
JAMES D. TODD, District Judge.
On May 2, 2014, Plaintiff Tavarius Jones, booking number 13133088, who is incarcerated at the Shelby County Criminal Justice Complex ("Jail") in Memphis, Tennessee, filed a pro se complaint pursuant to 42 U.S.C. § 1983 and a motion seeking leave to proceed in forma pauperis. (ECF Nos. 1 & 2.) On May 5, 2014, the Court entered an order granting leave to proceed in forma pauperis and assessing the filing fee. (ECF No. 5.) On May 27, July 9, and July 10, 2014, Plaintiff filed motions for leave to amend his complaint. (ECF Nos. 6, 9 & 10.) The Court entered an order on February 10, 2015, that granted the motions to amend the complaint. (ECF No. 13.) Plaintiff filed an amended complaint on March 13, 2015. (ECF No. 14.) The Clerk shall record the defendants as Bartlett Police Officer Grant Young, Bartlett Detective Kevin Martin, Bartlett Police Chief Gary Rikard, and the City of Bartlett.
Plaintiff alleges that on August 30, 2013, he and two friends were shoplifting at the Bartlett WalMart. (ECF No. 14 at PageID 46.) Plaintiff alleges that Defendant Young attempted to stop them in the parking lot. ( Id. ) Plaintiff alleges that he and his friends ran to his car, but by the time Plaintiff cranked the car, Defendant Young was at the front passenger's door, attempting to open it. ( Id. at PageID 46-47.) Plaintiff alleges that Defendant Young was yelling racial slurs at them. ( Id. at PageID 47.) Plaintiff alleges that Young released the passenger door and ran to the back of the vehicle like he was going to get the plate number and Plaintiff put the vehicle in drive to attempt to flee. ( Id. ) Plaintiff contends that Young then ran in front of his vehicle and Plaintiff put the vehicle in reverse. ( Id. ) Plaintiff alleges that sometimes Young's knee was on the bumper and sometimes Young was inches from the bumper. ( Id. ) Plaintiff contends that, when he realized that he had backed up as far as he could go, he put the vehicle in park and put his hands in the air. ( Id. ) Plaintiff alleges that Defendant Young then fired six shots into the vehicle and three hit Plaintiff causing serious injuries to his right arm. ( Id. )
Plaintiff alleges that, after he was arrested, Defendant Martin investigated and, rather than finding that Young used excessive force, fabricated a report stating that Plaintiff had attempted to run over Young. ( Id. at PageID 48.) Plaintiff alleges that Defendant Rikard was aware of Young's and Martin's misconduct, but failed to investigate thoroughly and disregarded the truth. ( Id. ) Plaintiff contends that the City of Bartlett violated his rights by enacting a policy that "[i]f a car is coming at one of our officers and he/she is in fear of being hit, he/she can use deadly force." ( Id. at PageID 51.)
Plaintiff seeks discipline for the individual defendants, dismissal of his criminal charges, and compensatory and punitive damages from all defendants. ( Id. at PageID 53-54.)
The Court is required to screen prisoner complaints and to dismiss any complaint, or any portion thereof, if the complaintC
(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,
[t]he court must construe the complaint in the light most favorable to plaintiffs, accept all well-pled factual allegations as true and determine whether plaintiffs undoubtedly can prove no set of facts consistent with their allegations that would entitle them to relief.... Though decidedly liberal, this standard does require more than bare assertions of legal conclusions.... Plaintiffs' obligation to provide the "grounds" of their entitlement to relief requires more than labels and conclusions or a formulaic recitation of the elements of the cause of action. The factual allegations, assumed to be true, must do more than create speculation or suspicion of a legally cognizable cause of action; they must show entitlement to relief.... To state a valid claim, a complaint must contain either direct or inferential allegations respecting all the material elements to sustain recovery under some viable legal theory.
League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007) (citations omitted; emphasis in original); see also Minadeo v. ICI Paints, 398 F.3d 751, 762-63 (6th Cir. 2005) (complaint insufficient to give notice of statutory claim); Savage v. Hatcher, 109 F.Appx. 759, 761 (6th Cir. 2004); Coker v. Summit County Sheriff=s Dep't, 90 F.Appx. 782, 787 (6th Cir. 2003) (affirming dismissal of pro se complaint where plaintiff "made bare bones, ' conclusory assertions that do not suffice to state a cognizable constitutional claim"); Foundation for Interior Design Educ. Research v. Savannah College of Art & Design, 244 F.3d 521, 530 (6th Cir. 2001) (the complaint must "allege a factual predicate concrete enough to warrant further proceedings'") (citation omitted); Mitchell v. Community Care Fellowship, 8 F.Appx. 512, 513 (6th Cir. 2001); Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 406 (6th Cir. 1998); Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988) ("[M]ore than bare assertions of legal conclusions is ordinarily required to satisfy federal notice pleading requirements.").
To state a claim under 42 U.S.C. § 1983,  a plaintiff must allege two elements: (1) a deprivation of rights secured by the "Constitution and laws" of the United States (2) committed by a defendant acting under color of state law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970).
Plaintiff has no claim against Defendant Young for Young's use of racial slurs. Allegations of verbal harassment and threats are insufficient to state a civil rights claim under § 1983. See Ivey v. Wilson, 832 F.2d 950, 954-55 (6th Cir. 1987) (holding verbal abuse does not qualify as punishment under the Eighth Amendment). Just as the Constitution "does not mandate comfortable prisons, " Wilson v. Seiter, ...