United States District Court, M.D. Tennessee, Columbia Division
CORDARO HUGHES, No. 416857 Plaintiff,
TONY PARKER, et al. Defendants.
Crenshaw Magistrate Judge
REPORT AND RECOMMENDATION
JEFFERY S. FRENSLEY, U.S. MAGISTRATE JUDGE.
pending before the court is Defendant's Motion to Dismiss
(Docket No. 33) and supporting memorandum of law (Docket No.
34) to which the Plaintiff has filed a response in opposition
(Docket No. 36). For the reasons stated herein, the
undersigned recommends that the Defendant's Motion to
Dismiss be GRANTED.
Cordaro Hughes, is an inmate in the custody of the Tennessee
Department of Correction who brought this action pro se under
42 U.S.C. § 1983. Following the Court's initial
review pursuant to the Prison Litigation Reform Act
(“PLRA”), Plaintiff was allowed to proceed on his
claim under § 1983 against Jeffery Butler for race based
discrimination under the Fourteenth Amendment's equal
Defendant, Mr. Butler, is the Assistant Warden at the Turney
Center Industrial Complex (“TCIX”), the
institution where Mr. Hughes was housed during all times
relevant to this action. The complaint alleges that while at
TCIX, Plaintiff was placed in segregation for allegedly
participating in gang activities, possessing a deadly weapon,
and assaulting another inmate. After being found guilty in a
disciplinary hearing, Plaintiff lost good time sentence
credits. Docket No. 1, p. 5. Mr. Hughes contends that he was
denied a fair hearing by the TCIX administration and
disciplinary board. He further alleges that he was racially
profiled and the victim of discrimination as African
American. Id. Specifically, the complaint alleges
that Assistant Warden Jeff Butler told the Plaintiff:
“you're a nigger, [and] we can't let you win
here, we play a dirty game down here.” Id.
Court allowed this claim to survive initial review on these
allegations holding: “At this point in the proceedings,
the Plaintiff has stated an arguable claim against Defendant
Butler in his individual capacity for race based
discrimination under the Fourteenth Amendment's equal
protection clause.” Docket No. 8, p. 7. (citations
Defendant has now filed a Motion to Dismiss alleging that the
Plaintiff has failed to state a cognizable § 1983 claim
pursuant to Heck v. Humphrey, 512 U.S. 477 (1994)
and Edwards v. Balisok, 520 U.S. 641 (1997) and
failed to allege sufficient personal involvement of the
Defendant. Docket No. 33. Specifically, the Defendant asserts
that under established Supreme Court precedent, a finding in
Plaintiff's favor would necessarily apply the invalidity
of the deprivation of his good time credits thereby
indirectly effecting the length or fact of his confinement, a
claim that is not cognizable under § 1983. Docket No.
34, pp. 2-3. The Defendant further contends the Plaintiff
“has failed to allege any specific or general facts as
to how Defendant caused, influenced, or was involved in an
allegedly unfair disciplinary hearing.” Id. at
p. 4. Defendant asserts that because Plaintiff has not
alleged or established any personal involvement by the
Defendant in the proceedings about which the Plaintiff
complains, he has failed to state a claim upon which relief
can be granted. Id.
Plaintiff responds in opposition asserting that the
“administrative policies and procedures, disciplinary
hearing summary report show that the Defendant was designated
by the deputy warden to investigate this matter which means
he is personally involved in everything.” Docket No.
36, p. 1. He further contends that the Defendant does not
address his assertion that “when I brought this matter
to his attention after gettin (sic) found guilty, Defendant
never denied the fact that he racially profiled me, the
Defendant also never denied the fact that I was never advised
of my rights and served a write up properly.”
Id. He asserts that he brought this issue to the
Defendant's attention so that the Defendant could conduct
a proper investigation and reasserts his allegation about the
statement that the Defendant made to him that the
irregularities and the procedures used in his hearing were
motivated by race. Id. Plaintiff again reiterates
the alleged deficiencies in his hearing as well. Id.
at p. 2.
ruling on a defendant's motion to dismiss, the court must
“construe the complaint liberally in the
plaintiff's favor and accept as true all factual
allegations and permissible inferences therein.”
Gazette v. City of Pontiac, 41 F.3d 1061, 1064 (6th
Cir. 1994). The court should allow “a well-pleaded
complaint [to] proceed even if it strikes a savvy judge that
actual proof of those facts is improbable.”
Twombly, 550 U.S. at 556. However, a
“plaintiff's obligation to provide the
‘grounds' of his ‘entitle[ment] to
relief' requires more than labels and conclusions.”
Id. at 555. “‘[A] legal conclusion
couched as a factual allegation' need not be accepted as
true on a motion to dismiss, ” Fritz v. Charter
Twp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010)
(citation omitted), and mere recitation of the elements of a
cause of action “or an “unadorned,
the-defendant-unlawfully-harmed-me accusation” will not
do, Iqbal, 556 U.S. at 678; Twombly, 550
U.S. at 555. While the court must accept “as true all
non-conclusory allegations in the complaint, ”
Delay v. Rosenthal Collins Grp., LLC, 585 F.3d 1003,
1005 (6th Cir. 2009), it does not have to accept unsupported
legal conclusions, Iqbal, 556 U.S. at 678.
se complaints are to be held to less stringent standards than
formal pleadings drafted by lawyers, and should therefore be
liberally construed.” Williams v. Curtin, 631
F.3d 380, 383 (6th Cir. 2011) (internal quotation marks and
citation omitted). Pro se litigants, however, are not exempt
from the requirements of 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 a 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).
every allegation of constitutional violations in prisoner
proceedings is the proper subject for an action under §
1983. In a series of cases beginning with Preiser v.
Rodriguez, 411 U.S. 475, 3 S.Ct. 1827, 36 L.Ed.2d 439
(1973), the Supreme Court has considered the interplay
between 42 U.S.C. § 1983 and the federal habeas corpus
statute, 28 U.S.C. § 2254. In Preiser, state
prisoners who had been deprived of good-conduct-time credits
by the New York State Department of Correction Services as a
result of disciplinary proceedings brought a § 1983
action to compel the restoration of the credits which would
have led to their immediate release but did not seek
compensatory damages for the loss of the credits. 411 U.S. at
476, 494. The Supreme Court held that: “when a state
prisoner, though asserting jurisdiction under the Civil
Rights Act, is challenging the very fact or duration of his
physical imprisonment, and the relief he seeks is a
determination that he is entitled to immediate release or
speedier release from that imprisonment, his sole federal
remedy is a writ of habeas corpus.” Id. at
later in Heck v. Humphries, 512 U.S. 477, 114 S.Ct.
2364, 129 L.Ed.2d 383 (1994), the Court considered a question
related to the one presented in Preiser, whether a
prisoner could challenge the constitutionality of his
conviction in a suit for damages only under § 1983, a