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Whipple v. Millay

United States District Court, M.D. Tennessee, Columbia Division

September 21, 2017

ROBERT ZENAS WHIPPLE, III, Plaintiff,
v.
REBECCA MILLAY, et al., Defendants.

          MEMORANDUM AND ORDER

          WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE

         Pending before the Court is Defendant Cazz Crowder's Motion to Dismiss. (Doc. No. 135.) Because the Court finds Whipple's claims against Crowder are MOOT, the Motion to Dismiss is GRANTED. On sua sponte review pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court also finds that Whipple's claims against defendants Kim Sims and Jeff Hughes are MOOT and must be DISMISSED for that reason. Finally, Whipple's claims against Defendant Crownover must be DISMISSED based upon the Suggestion of Death filed May 5, 2016.

         I. Statement of Facts

         On September 3, 2014, Plaintiff Robert Zenas Whipple, III, proceeding pro se and in forma pauperis, filed this civil rights action under 42 U.S.C. § 1983 against twenty-two defendants, alleging violations of his First Amendment rights. (Doc. No. 1, PageID# 281, 294.) Whipple was an inmate at Turney Center Industrial Complex during the times relevant to this action. (Doc. No. 1, PageID# 282.) He was transferred to Bledsoe County Correctional Complex in April 2015. (Doc. No. 27.)

         Whipple's claims concern his access to Turney's law library and alleged retaliation for his filing of grievances and lawsuits. Specifically, Whipple alleges that: (1) Turney's law library was open fewer than its posted hours, in violation of Tennessee Department of Correction (TDOC) policy, (id. at PageID# 296-98); (2) he faced long delays in being added to Turney's “legal deadline list, ” which gives inmates with pending legal deadlines additional law-library access, (id. at PageID# 298-301); (3) in retaliation for filing lawsuits and grievances, a false disciplinary charge was filed against him and, on the basis of this disciplinary charge, he was dismissed from Turney's “Serving with Canines” program and moved to a “more dangerous” housing unit with fewer privileges, (id. at PageID# 301-03); (4) Turney's “master callout” system hindered access to the courts by requiring prisoners to request law-library passes at least two days in advance, (id. at PageID# 303-04); (5) Turney charged a fee to print legal documents in violation of TDOC policy, (id. at PageID# 305-06); (6) a law-library computer shortage limited the time prisoners were allotted to do legal work on computers, (id. at PageID# 307-08); (7) one of Whipple's trust fund withdrawal forms was altered to replace “printout” with “copy” in order to “cover up” Turney's policy of charging for printing, (id. at PageID# 308); (8) Whipple was prevented from copying this altered form “to submit as an exhibit with a claim before the Tennessee Claims Administration as well as to send to authorities as proof of criminal conduct, ” (id. at PageID# 309- 10); (9) Whipple was “forced to sign false Trust Fund Withdrawal forms, ” which stated that the withdrawal was for copies rather than printing, (id. at PageID# 310); and (10) six hours after arguing with Defendant Rebecca Millay, Turney's “Correctional Principal, ” about the trust fund forms, Whipple was moved to Turney's Unit 4, where he was exposed to tobacco smoke, his top bunk was unsecured and subject to collapse, and a gang leader threatened him. (Id. at PageID# PageID# 310-11.)

         Whipple sued Debra Johnson, then Turney's Warden; David Gary and Kim Lake, sergeants at Turney; and Millay in their individual and official capacities. (Doc. No. 1, PageID# 281). He sued the remaining defendants, [1] including Crowder (Turney's library supervisor), Sims (supervisor of Serving With Canines), and Hughes (Turney's fiscal director) in their official capacities only. (Id.) The complaint requested declaratory and injunctive relief, as well as compensatory damages from Millay and Johnson. (Id. at PageID# 281, 314.)

         The Court granted Defendant Retrieving Independence's motion to dismiss (Doc. No. 74), finding that Whipple had failed to “allege plausible facts that Retrieving Independence, a private party, acted in concert with the state official who terminated Plaintiff's involvement with Serving with Canines.” (Doc. No. 143, PageID# 866.) Upon the motion of Defendants Millay, Johnson, Gary, Lake, Haslam, Schofield, Lorch, Woodall, Inglis, Stephens, Whitt, Butler, Treadwell, Setzer, Harrington, Rochelle, and Chandler (Doc. No. 107), the Court dismissed all of Whipple's claims for injunctive relief against all defendants, reasoning that Whipple's transfer from Turney to a different facility mooted his claims for injunctive relief.[2] (Doc. No. 144, PageID# 868-69; Doc. No. 145). Whipple appealed that denial of an injunction and the Sixth Circuit affirmed, holding that “[n]o live controversy remains regarding the conditions at the prison where Whipple was formerly incarcerated.” Whipple v. Millay, No. 17-5083, 2017 WL 3159939, at *1 (6th Cir. July 13, 2017).

         At the time of the Court's dismissal order, service of process had not been effected upon Defendants Kim Sims, Jeff Hughes, Arthur Crownover, and Cazz Crowder. (Doc. Nos. 50-52.) The Attorney General's Office filed a suggestion of Crownover's death on May 5, 2016, showing that he died on February 25, 2016. (Doc. No. 53.) Sims, Hughes, and Crowder no longer worked at Turney when service was attempted. (Doc. Nos. 50-52.) Pursuant to the Court's order, Defendant Derrick Schofield filed their addresses under seal (Doc. No. 102), and summonses to Sims, Hughes, and Crowder were re-issued on October 14, 2016 (Doc. No. 124.) Crowder and Hughes were served with process. (Doc. Nos. 127, 131.) Hughes has not appeared in this action. Defendant Sims has not yet been served. On Whipple's motion for assistance in effectuating service, the Court reissued a summons to Sims on September 12, 2017. (Doc. No. 198.)

         Crowder was ultimately served on October 26, 2016, (Doc. No. 127), and he filed the instant motion to dismiss (Doc. No. 135) on December 23, 2016, accompanied by a memorandum of law (Doc. No. 136). Whipple responded in opposition on January 30, 2017 (Doc. No. 164), and Crowder has replied (Doc. No. 174). Crowder argues that Whipple's claims for injunctive relief against him should be dismissed as moot because Whipple no longer resides at the Turney. (Doc. No. 136, PageID# 854-56.)

         II. Legal Standard

         In deciding a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted, the Court must view the complaint in the light most favorable to the plaintiff, accepting all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim.” Fed.R.Civ.P. 8(a)(2). However, the plaintiff must allege sufficient facts to show that the claim is “plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007).

         “The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). A plaintiff must plead more than “labels and conclusions, ” “a formulaic recitation of the elements of a cause of action, ” or “naked assertion[s] devoid of further factual enhancement.” Id. (alteration in original) (internal quotation marks omitted) (quoting Twombly, 550 U.S. at 555, 557). “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. Finally, “[a] document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation and internal quotation marks omitted).

         III. Analysis

         “A ‘case is moot when the issues presented are no longer “live” or the parties lack a legally cognizable interest in the outcome.'” Townsend v. Vasbinder, 365 F. App'x 657, 660 (6th Cir. 2010) (quoting Cty. of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)). “To determine whether a case is moot this court considers ‘whether the relief sought would, if granted, make a difference to the legal interests of the parties.'” Id. (quoting United States v. Detroit, 401 F.3d 448, 450-51 (6th Cir. 2005)). Mootness also results “when events occur[ing] during the pendency of the litigation . . . render the court unable ...


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