United States District Court, W.D. Tennessee, Eastern Division
JOHNNY L. MCGOWAN, JR. Plaintiff,
CORECIVIC, ET AL., Defendant.
ORDER ON PENDING MOTIONS, PARTIALLY DISMISSING
COMPLAINT, AND DIRECTING THAT PROCESS BE ISSUED AND
D. TODD, UNITED STATES DISTRICT JUDGE
September 20, 2016, Plaintiff Johnny L. McGowan, Jr., a
Tennessee Department of Correction (TDOC) inmate who is
currently incarcerated at the West Tennessee State
Penitentiary in Henning, Tennessee, filed a pro se
complaint pursuant to 42 U.S.C. § 1983 and Title III of
the Americans with Disabilities Act (ADA), 42 U.S.C. §
12181 et seq. (ECF No. 1.) The filing fee has been
paid; therefore, the motion for an extension of time to pay
the fee (ECF No. 9) is DENIED as moot.
complaint concerns events that occurred during his previous
incarceration at the Hardeman County Correctional Facility
(HCCF) in Whiteville, Tennessee. HCCF is operated by
CoreCivic, a private prison-management company formerly known
as Corrections Corporation of America (CCA). McGowan named CCA
as a Defendant and, following the company's name-change,
filed motions to amend the case caption and the
Defendant's name on the docket. (ECF Nos. 8 & 10.) Those
motions are GRANTED. The Clerk is DIRECTED to modify the
docket to reflect the change in CCA's name. The Clerk
shall record the other Defendants as Dr. First Name Unknown
(FNU) Dietz; HCCF Health Administrator Jill Miller; HCCF
Warden Grady Perry; Associate Warden Charlotte Burns;
Assistant Warden Byron Ponds; TDOC Compliance Officer Darnell
Peterson; Sergeants FNU Edwards, Arthur Thomas, FNU
Fitzgerald and Mary Robertson; Unit Managers E. Greer,
Dorothy Robertson, Tanesha Douglas-Robinson, FNU Owens and
Shatasha Jones; Case Manager Tameka Walker; Officers S.
Carver, FNU Polk, FNU Cross, LaShun Woods, Barbara Pirtle,
Ricky Beasley, and FNU Malone; Marquetta Golden; and
Lieutenant (Lt.) Brandon Smith. Defendants are sued in both their
individual and official capacities.
November 7, 2016, McGowan filed a motion to hold the case in
abeyance so he could exhaust his administrative remedies.
(ECF No. 6.) That motion is DENIED as moot because Plaintiff
has since filed documents demonstrating the exhaustion of
several grievances. (E.g., ECF Nos. 15, 16, 18-1,
18-2 & 23.)
alleges that on September 14, 2015, he was forced to walk a
long distance without his four-prong cane by Defendant
Edwards and an unidentified officer. (ECF No. 1 at 8.)
McGowan contends the officers could see he was using his cane
and that he told them he was Class B Medical; nevertheless,
the officers said it did not matter because he had to be
handcuffed. (Id.) His hands were handcuffed behind
his back, and the officers escorted him for several minutes.
(Id.) As they passed Defendant Greer's office,
she informed McGowan she had instructed that he be taken to
segregation. (Id.) McGowan alleges that he suffers
from Isthmic Spondilolisthesis and arthritis in his spine and
that he was recovering from fractures in his lower spine at
the time. (Id.) McGowan alleges that the actions of
Defendant Edwards violated his Eighth Amendment rights, his
right to equal protection as a disabled inmate under the
Fourteenth Amendment, and the ADA. (Id. at 9.) He
further alleges that CoreCivic was negligent in training its
security staff on how to escort handicapped inmates from
place to place within the prison. (Id.)
alleges that on November 12, 2015, he placed
“another” of his “numerous” sick call
and medical requests to Defendant Dietz and the HCCF medical
staff, including Defendant Miller, requesting to have his
“keep on person” medications renewed by the
doctor. (Id. at 10.) However, his requests allegedly
were ignored for several months, causing McGowan to suffer in
pain without medication for his serious medical conditions.
McGowan alleges that Defendants Dietz and Miller acted with
deliberate indifference because they were aware, via his
medical file, that he suffers from a thyroid condition,
isthmic spondylolisthesis, chronic back pain and arthritis,
and that he was recovering from several back fractures.
January 2016, Defendants Perry, Peterson, Greer, Ponds,
Owens, Roberts, Dorothy Robertson, Jones, Walker, Mary
Robertson (Robinson), Fitzgerald, Thomas, Woods, Carver,
Beasley, Pirtle, Polk, and Cross allegedly “strongly
implemented” TDOC policy #506.14.VI(E). (Id.
at 11.) McGowan alleges that particular policy provides for
“Tier Management” and that the Defendants used it
to justify locking inmates who are in double-man cells into
their cells for more than sixteen to twenty-three hours per
day, which allegedly violates the Eighth Amendment.
(Id. at 11-12.)
alleges that Defendant Peterson, the TDOC Compliance Officer,
allowed the HCCF Defendants to ignore or illegally apply Tier
Management and other TDOC policies, which McGowan contends
resulted in the violation of his and other inmates'
constitutional rights. (Id. at 13-14.)
19, 2016, McGowan allegedly was again forced to walk without
his cane, this time by Defendants Jones, Malone and Perry.
(Id. at 14.) After handcuffing him behind his back,
Defendants Jones and Malone walked McGowan for several
minutes. (Id. at 15.) McGowan alleges that when he
had to stop repeatedly to adjust to the pain in his lower
back and left knee, he was pushed by Defendant Jones.
(Id.) Defendant Perry took over for Jones, and
McGowan was walked further until a wheelchair was produced;
McGowan was taken to the medical department prior to
placement in segregation. (Id.) McGowan asserts this
was a violation of the ADA and his constitutional rights.
further alleges that he was in segregation for twenty days,
during which he was subjected to cruel and unusual
punishment. He alleges that he was confined in a double cell
with small square footage and that the cell doors were
barricaded with crossbars and steel grating to obstruct the
view and prevent the windows from being washed. (Id.
at 16.) Cleaning supplies were not issued daily, in violation
of TDOC policy, and the cells were not cleaned at all until
they unoccupied by inmates, possibly for thirty days or more.
(Id.) Toilets would back up into neighboring cells,
and the inmates had to eat their meals in those unsanitary
conditions. (Id.) The cell doors were equipped with
only one pie-flap or door opening, so that food trays and
other items had to be passed through the same opening, which
McGowan alleges is unsanitary and unconstitutional.
(Id.) He states the segregation showers are not
handicapped-accessible, which allegedly violates the ADA and
is unconstitutional. (Id.) McGowan contends that
Defendants' allowing these conditions to exist amounted
to deliberate indifference to his health and safety.
(Id. at 17.)
February 9, 2017, McGowan filed a motion to amend the
complaint. (ECF No. 18.) He seeks to assert a claim for
retaliation against Defendant Douglas-Robinson and new
Defendant Marquetta Golden, and to assert an excessive force
claim against new Defendant Lt. Brandon Smith. The motion to
amend is GRANTED.
amendment, McGowan alleges that on August 23, 2016,
Defendants Douglas-Robinson and Golden moved him from his job
and from (I)-Unit-Cell-A110 to HA-114 in retaliation and as
punishment for his grievance against Officer Thomas, who is
not a party, after she denied him access to the law library.
(Id. at 1-2.)
further alleges that after he was placed in a segregation
cell on August 23, 2016, his cellmate, Cortez, was brought in
from recreation. (Id. at 3.) Once Cortez was inside
he announced, “Everybody get your shit off the floor
I'm busting a sprinkler” and told McGowan,
“I'm busting the sprinkler.” (Id.)
Cortez packed his own property and gave it to Defendant
Smith. (Id.) When Smith closed the door to the cell,
Cortez starting trying to break the sprinkler head with a
shoe, and McGowan began “repeatedly telling Lt. Smith
that I had nothing to do with whatever is going on I just got
over here. Let me out of the cell.” (Id.)
Smith ignored McGowan and sprayed pepper spray into the cell,
which McGowan alleges was a violation of TDOC policy and
amounted to excessive force. (Id. at 4.) As a
result, he allegedly suffered from a swollen throat and sinus
problems lasting from two to three days. (Id.)
McGowan told Defendant Smith about his injuries, and the next
day Smith contacted Nurse Rhymes, who is not a party.
(Id.) The nurse came to the segregation unit and
examined McGowan but “acted as if nothing was
wrong” even though his throat was still raw, red and
swollen. (Id.) During inspection later on August
24th, McGowan told Defendant Perry what had happened, and the
Warden allegedly “approved of” Smith's
seeks injunctive relief in various forms as well as
compensatory and punitive damages against all of the
Defendants. (ECF No. 1 at 17-24; ECF No. 18 at 6-7.)
Court is required to screen prisoner complaints and to
dismiss any complaint, or any portion thereof, if the
(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
28 U.S.C. § 1915A(b); see also 28 U.S.C. §
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
Atlantic 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). “[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.”).
complaint can be frivolous either factually or
legally.” Hill, 630 F.3d at 470 (citing
Neitzke v. Williams, 490 U.S. 319, 325 (1989)).
“Any complaint that is legally frivolous would
ipso facto fail to state a claim upon which
relief can be granted.” Id. (citing
Neitzke, 490 U.S. at 328-29).
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. Unlike a dismissal for
failure to state a claim, where a judge must accept all
factual allegations as true, a judge does not have to accept
“fantastic or delusional” factual allegations as
true in prisoner complaints that are reviewed for
Id. at 471 (citations and internal quotation marks
se complaints are to be held ‘to less stringent
standards than formal pleadings drafted by lawyers, ' and
should therefore be liberally construed.”
Williams, 631 F.3d at 383 (quoting Martin v.
Overton, 391 F.3d 710, 712 (6th Cir. 2004)). 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);
see also Brown v. Matauszak, 415 F. App'x 608,
612, 613 (6th Cir. Jan. 31, 2011) (affirming dismissal of
pro se complaint for failure to comply with
“unique pleading requirements” and stating
“a court cannot ‘create a claim which [a
plaintiff] has not spelled out in his pleading'”
(quoting Clark v. Nat'l Travelers Life Ins. Co.,
518 F.2d 1167, 1169 (6th Cir. 1975))); 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”); cf.
Pliler v. Ford, 542 U.S. 225, 231 (2004)
(“District judges have no obligation to act as counsel
or paralegal to pro se litigants.”); Young
Bok Song v. Gipson, 423 F. App'x 506, 510 (6th Cir.
2011) (“[W]e decline to affirmatively require courts to
ferret out the strongest cause of action on behalf of pr ...