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Bennett v. Parker

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

October 13, 2017

TONY PARKER, et al., Defendants.



         The Court is in receipt of a pro se prisoner complaint (Docket Entry No. 1) brought pursuant to 42 U.S.C. § 1983, an application to proceed in forma pauperis (Docket Entry No. 2), a motion (Docket Entry No. 3) for the appointment of counsel, a motion (Docket Entry No. 8) for an emergency injunction, a motion (Docket Entry No. 9) for a fast and speedy ruling on the application to proceed in forma pauperis, and a motion (Docket Entry No. 10) to review an earlier order assigning plaintiff's cases to a particular Magistrate Judge.

         The plaintiff is an inmate at the Riverbend Maximum Security Institution in Nashville. It appears from his application that he lacks sufficient financial resources from which to pay the fee required to file the complaint. Accordingly, the plaintiff's application is GRANTED. The Clerk shall file the complaint in forma pauperis. 28 U.S.C. § 1915(a).[1]

         The plaintiff is herewith ASSESSED the civil filing fee of $350.00. Pursuant to 28 U.S.C. § 1915(b)(1)(A) and (B), the custodian of the plaintiff's inmate trust account at the institution where he now resides is directed to submit to the Clerk of Court, as an initial partial payment, whichever is greater of:

(a) twenty percent (20%) of the average monthly deposits to the plaintiff's inmate trust account; or
(b) twenty percent (20%) of the average monthly balance in the plaintiff's inmate trust account for the prior six (6) months.

         Thereafter, the custodian shall submit twenty percent (20%) of the plaintiff's preceding monthly income (or income credited to the plaintiff's trust account for the preceding month), but only when such monthly income exceeds ten dollars ($10.00), until the full filing fee of three hundred fifty dollars ($350.00) as authorized under 28 U.S.C. § 1914(a) has been paid to the Clerk of Court. 28 U.S.C. § 1915(b)(2).

         The plaintiff brings this action against twenty (20) defendants. These defendants include twelve members of the Riverbend staff (Carolyn Jones, Brandi McClure, Michael Sargunis, Ernest Lewis, Celina Taylor, James Horton, Robert Mosley, Robert Bates, Mark Collins, Andrew Brown, Bruce Westbrooks and Frank Heroux) and eight employees of the Tennessee Department of Correction (Tony Parker, Donna Turner, Mandy Ellis, Tom Joplin, Rossi Jackson, Ramon Sherrell, Nathan Miller and Samuel Roberts).

         According to the complaint, the plaintiff is “filing this against various TDOC prison officials for allowing me to repeatedly be victimized and raped by Riverbend Warden Bruce Westbrooks.” Docket Entry No. 1 at 4. The plaintiff claims that he was made to perform oral sex on the Warden on nine separate occasions while the Warden anally raped him three times. Id.

         The plaintiff has attempted to file grievances to complain about the sexual abuse he is suffering but the Grievance Chairperson, Brandi McClure, allegedly refuses to process the grievances. Id. The plaintiff also insists that he has repeatedly written to Ellis, Brown, Roberts, Sherrell, Jackson, Miller, Turner and Parker about the sexual abuse “to no avail.” Id. at 5. Defendants Joplin and Jordan have been made aware of the situation but they refuse to follow appropriate procedures mandated by the Prison Rape Elimination Act. Id.

         While on a visit to the prison in July, 2017, the plaintiff alleges that he informed defendants Parker, Bates, Heroux, Ellis, Turner, Collins, Joplin, Lewis, Roberts, Brown and Sargunis about what had been happening to him. Id. These defendants not only ignored the plaintiffs' pleas for help, but they “retaliated against me by directing Cpl. Taylor, Michael Sargunis and Mark Collins to come to my cell and remove all my pen and paper, legal material and denied me access to it.” Id. at 6. Taylor and Sargunis then “brutally beat me”, resulting in two black eyes, a “busted” eye socket, a broken nose and a broken collarbone.” Id.

         The attack was reported to Mosley, Horton and Heroux who refused to take any action against plaintiff's assailants or get him medical care. Id. The plaintiff describes a five day period during which he was not allowed out of his cell, had no access to running water, was “butt-naked” and was only fed once. Id.

         The plaintiff specifically alleges that has been sexually assaulted by Warden Westbrooks and physically assaulted by Celina Taylor and Michael Sargunis. Such assaults by prison personnel are actionable under § 1983. Freitas v. Ault, 109 F.3d 1335, 1338 (8th Cir. 1997). Therefore, the plaintiff has stated a colorable claim for relief against these defendants.

         The plaintiff claims that the remaining defendants were aware of the sexual abuse but took no action to prevent it. It is well settled that the plaintiff must allege the personal involvement of a defendant in the alleged misconduct to state a claim under § 1983. Taylor v. Michigan Dept. of Corrections, 69 F.3d 76, 81 (6th Cir. 1995) (the plaintiff must allege facts showing that the defendant participated in, condoned, encouraged, or knowingly acquiesced in the alleged misconduct). A showing of “direct responsibility” for the misconduct is a prerequisite for liability. The mere failure to ...

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