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 June 24, 2014, Plaintiff Bobby Buffer, prisoner number 14112907, who is incarcerated at the Shelby County Correctional Facility ("SCCF") 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 June 26, 2014, the Court entered an order granting leave to proceed in forma pauperis and assessing the filing fee. (ECF No. 3.) The Clerk shall record the defendants as Officer Frazier, Sergeant Bryant, Lieutenant Askew, Nurse Gwen, first name unknown Washington, Nurse Battle, Correct Care Solutions, and Shelby County.
Plaintiff alleges that while he was incarcerated at the Shelby County Jail, he was prescribed Tylenol for his chest and leg pain from gunshot wounds. (ECF No. 1 at PageID 4.) Unbeknownst to Plaintiff, Defendant Washington gave him Mobic. (Id. ) After two weeks, Defendant Gwen explained to Plaintiff what medication he had been taking. (Id. ) Plaintiff contends that the Mobic caused him to cough up blood, to lose his appetite, and to be unable to have a bowel movement. (Id. ) Plaintiff alleges that on May 3, 2014, he was coughing up blood and bleeding from the nose. (Id. ) Defendant Frazier was informed, saw Plaintiff, and called Defendant Bryant instead of calling a Code White. (Id. ) Defendant Bryant cursed Plaintiff and said Plaintiff could fill out a sick call. (Id. ) Plaintiff alleges that he informed medical the next day, and the prescription was discontinued. (Id. ) Plaintiff admits that Frazier and Bryant were reprimanded by Defendant Lieutenant Askew but complains that Askew also failed to provide medical attention. (Id. at PageID 5.) Plaintiff seeks monetary and punitive damages and injunctive relief providing he be examined by a specialist. (Id. at PageID 6.)
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,
[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 sues Shelby County. A local government "cannot be held liable under 1983 on a respondeat superior theory." Monell v. Dep't. of Soc. Serv., 436 U.S. 658, 691 (1978) (emphasis in original); see also Searcy v. City of Dayton, 38 F.3d 282, 286 (6th Cir. 1994); Berry v. City of Detroit, 25 F.3d 1342, 1345 (6th Cir. 1994). A municipality cannot be held responsible for a constitutional deprivation unless there is a direct causal link between a municipal policy or custom and the alleged constitutional deprivation. Monell, 436 U.S. at 691-92; Deaton v. Montgomery Co., Ohio, 989 F.2d 885, 889 (6th Cir. 1993). To demonstrate municipal liability, a plaintiff "must (1) identify the municipal policy or custom, (2) connect the policy to the municipality, and (3) show that his particular injury was incurred due to execution of that policy." Alkire v. Irving, 330 F.3d 802, 815 (6th Cir. 2003) (citing Garner v. Memphis Police Dep't, 8 F.3d 358, 364 (6th Cir. 1993)). "Where a government custom has not received formal approval through the body's official decisionmaking channels, ' such a custom may still be the subject of a § 1983 suit." Alkire, 330 F.3d at 815 (quoting Monell, 436 U.S. at 690-91). The policy or custom "must be the moving force of the constitutional violation' in order to establish the liability of a government body under § 1983." Searcy, 38 F.3d at 286 (quoting Polk Co. v. Dodson, 454 U.S. 312, 326 (1981) (citation omitted)). "[T]he touchstone of official policy' is designed to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible.'" City of St. Louis v. Praprotnik, 485 U.S. 112, 138 (1988) (quoting Pembaur v. Cincinnati, 475 U.S. 469, 479-80 (1986)) (emphasis in original).
Although civil rights plaintiffs are not required to plead the facts demonstrating municipal liability with particularity, Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168-69 (1993), the complaint must be sufficient to put the municipality on notice of the plaintiff's theory of liability, see, e.g., Fowler v. Campbell, Civil Action No. 3:06CV-P610-H, 2007 WL 1035007, at *2 (W.D. Ky. Mar. 30, 2007); Yeackering v. Ankrom, No. 4:05-CV-00018-M, 2005 WL 1877964, at *2 (W.D. Ky. Aug. 5, 2005); Oliver v. City of Memphis, No. 04-2074-B, 2004 WL 3316242, at *4 (W.D. Tenn. Dec. 2, 2004); cf. Raub v. Correctional Med. Servs., Inc., No. 06-13942, 2008 WL 160611, at *2 (E.D. Mich. Jan. 15, 2008) (denying motion to dismiss where complaint contained conclusory allegations of a custom or practice); Cleary v. County of Macomb, No. 06-15505, 2007 WL 2669102, at *20 (E.D. Mich. Sept. 6, 2007) (same); Morningstar v. City of Detroit, No. 06-11073, 2007 WL 2669156, at *8 (E.D. Mich. Sept. 6, 2007) (same); Chidester v. City of Memphis, No. 02-2556 MA/A, 2006 WL 1421099, at *3 (W.D. Tenn. June 15, 2005). The allegations of the complaint fail to identify a purported official policy or custom which caused injury to Plaintiff. Instead, it appears that Plaintiff is suing the Shelby County because he was confined in a county institution.
The complaint contains no allegations arising from any action of Defendants Lieutenant Askew, Nurse Gwen, Nurse Battle, and Correct Care Solutions. When a complaint fails to allege any action by a defendant, it necessarily fails to "state a claim for relief that is plausible on its face." Twombly, 550 U.S. at 570.
Section 1983 will not support a claim based upon a theory of respondeat superior alone. Polk County v. Dodson, 454 U.S. 312, 325 (1981); Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984). A plaintiff must allege that a defendant official was personally involved in the unconstitutional activity of a subordinate in order to state a claim against such a defendant. Dunn v. State of Tennessee, 697 F.2d 121, 128 (6th Cir. 1982). A failure to supervise, control or train an individual is not actionable "unless the supervisor either encouraged the specific incident of misconduct or in some other way directly participated in it.'" Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). "At a minimum a plaintiff must show that the official least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending officers." Hays ...