United States District Court, M.D. Tennessee, Nashville Division
H. SHARP, CHIEF UNITED STATES DISTRICT JUDGE
Demance Beasley is a state prisoner incarcerated at the
Riverbend Maximum Security Institution (“RMSI”)
in Nashville, Tennessee. Before the court is Plaintiff's
application to proceed in forma pauperis. (ECF No.
2). In addition, Plaintiff has filed a complaint for civil
rights violations under 42 U.S.C. § 1983 against
Defendants Warden Bruce Westbrooks; Sgt. Bryan Tyner; Cpl. B.
McClure; Sgt. Deneice Bah and Cpl. Robin Fish, which is
before the court for an initial review pursuant to the Prison
Litigation Reform Act (“PLRA”), 28 U.S.C.
§§ 1915(e)(2) and 1915A, and 42 U.S.C. §
Application to Proceed In Forma Pauperis
28 U.S.C. § 1915(a), a prisoner bringing a civil action
may be permitted to file suit without prepaying the filing
fee of $350 required by 28 U.S.C. § 1914(a). Because the
plaintiff properly submitted an in forma pauperis
affidavit, and because it appears from his submissions that
the plaintiff lacks sufficient financial resources from which
to pay the full filing fee in advance, the application (ECF
No. 2) will be granted.
under § 1915(b), Plaintiff remains responsible for
paying the full filing fee. The obligation to pay the fee
accrues at the time the case is filed, but the PLRA provides
prisoner-plaintiffs' the opportunity to make a
“down payment” of a partial filing fee and to pay
the remainder in installments. Accordingly, Plaintiff will be
assessed the full $350 filing fee, to be paid as directed in
the order accompanying this memorandum opinion.
Standard of Review
the PLRA, the court must conduct an initial review of any
civil complaint brought by a prisoner if it is filed in
forma pauperis, 28 U.S.C. § 1915(e)(2), seeks
relief from government entities or officials, 28 U.S.C.
§ 1915A, or challenges the prisoner's conditions of
confinement, 42 U.S.C. § 1997e(c). Upon conducting this
review, the court must dismiss the complaint, or any portion
thereof, that fails to state a claim upon which relief can be
granted, is frivolous, or seeks monetary relief from a
defendant who is immune from such relief. 28 U.S.C.
§§ 1915(e)(2) and 1915A; 42 U.S.C. § 1997e(c).
The Sixth Circuit has confirmed that the dismissal standard
articulated by the Supreme Court in Ashcroft v.
Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp.
v. Twombly, 550 U.S. 544 (2007), “governs
dismissals for failure to state a claim under those statutes
because the relevant statutory language tracks the language
in Rule 12(b)(6).” Hill v. Lappin, 630 F.3d
468, 470-71 (6th Cir. 2010). Thus, to survive scrutiny on
initial review, “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 570). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556).
reviewing the complaint to determine whether it states a
plausible claim, “a district court must (1) view the
complaint in the light most favorable to the plaintiff and
(2) take all well- pleaded factual allegations as
true.” Tackett v. M & G Polymers, USA,
LLC, 561 F.3d 478, 488 (6th Cir. 2009) (citing
Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir.
2009) (citations omitted)). A pro se pleading must
be liberally construed and “held to less stringent
standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing
Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
“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). The Court is not required to create a claim for
the plaintiff. Clark v. Nat'l Travelers Life Ins.
Co., 518 F.2d 1167, 1169 (6th Cir. 1975); see also
Brown v. Matauszak, 415 F.App'x 608, 613 (6th Cir.
2011) (“[A] court cannot create a claim which [a
plaintiff] has not spelled out in his pleading”)
(internal quotation marks and citation omitted); Payne v.
Sec'y of Treas., 73 F.App'x 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”). To
demand otherwise would require the “courts to explore
exhaustively all potential claims of a pro se
plaintiff, [and] would also transform the district court from
its legitimate advisory role to the improper role of an
advocate seeking out the strongest arguments and most
successful strategies for a party.” Beaudett v.
City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Finally, the Court need not sift through exhibits attached to
Plaintiff's complaint in order to determine what, if any,
basis exists for Plaintiff's claims against Defendants.
See Jackson v. Lawrence Corr. Ctr. Heatlh Care, No.
15-cv-00082-JPG, 2015 WL 603853, at *2 (S.D. Ill. Feb. 12,
alleges that on July 13, 2016, Defendant Westbrooks
approached his cell during cell inspection and commented on
some debris on Plaintiff's sink and writing on
Plaintiff's cell door. Plaintiff explained that the
writing on the door was there before Plaintiff moved into the
cell, but that he never asked for cleaning supplies to remove
the writing because Defendant Bah and her officers
“catch attitudes when asked for cleaning
supplies.” (Complaint, ECF No. 1 at Page ID#6.)
Defendant Westbrooks told Defendant Bah to give Plaintiff
some paint so he could re-paint the door. (Id.)
Defendant Westbrook left the area of Plaintiff's cell.
alleges that, to spite him, Defendant Bah told Defendant
Westbrooks that Plaintiff was a gang member and that he had
written on the door. (Id.) Plaintiff is aware of
this conversation between Defendants Westbrook and Bah
because another inmate heard the conversation and told
Plaintiff about it. (Id.)
Westbrooks and Bah came back to Plaintiff's cell to take
pictures of the writing on Plaintiff's door.
(Id.) Two days later Plaintiff was written up,
presumably for the writing on his door. (Id. at Page
ID# 8.) Plaintiff alleges that although there were
five letters on the door, Defendant Bah took pictures of only
two of the letters. (Id.) The pictures were sent to
the Security Threat Group (STG) Coordinator, Defendant Fish,
who determined that the two letters were gang related.
(Id.) Plaintiff was written up for possession of
15, 2016, Defendant Westbrooks approached Plaintiff's
cell while conducting cell inspections and noticed that the
writing was still on Plaintiff's door. (Id.)
According to Plaintiff, Defendant Westbrooks “became
irate saying how much disdain he had for ‘Black Gang
Members' and proceeded to take out his ink pen and write
on the door ‘O.G. Sucks Big Dicks'.”
(Id. (emphasis in original)) Plaintiff told
Defendant Westbrooks that his behavior was very
unprofessional. (Id.) Defendant Westbrooks
“became even more irate and told [Plaintiff that he]
was going to clean it.” (Id.) Plaintiff
alleges that he told Defendant Westbrooks that he would not
clean off what Defendant Westbrooks had written because what
Defendant Westbrooks did “was disrespectful, racist and
unethical.” (Id.) Defendant Westbrooks then
told a member of the “cert team, ” who had
witnessed Defendant Westbrooks' behavior, to take
Plaintiff to segregation. (Id.)
18, 2016, Unit 4 Counselor Don Ferguson and Classification
Coordinator Tom Rushing, neither of whom is a Defendant,
“held a special re-class to re-class me to maximum
custody.” (Id.) Plaintiff alleges that
Ferguson and Rushing falsified documents to make his
custody-level points higher than they really were and when
Plaintiff pointed out the errors in their calculations,
Ferguson and Rushing plotted with Defendant Tyner, the
disciplinary chairperson, so that Plaintiff would be found
guilty on a ...