United States District Court, W.D. Tennessee, Eastern Division
ORDER PARTIALLY DISMISSING AMENDED COMPLAINT AND
DIRECTING THAT PROCESS BE ISSUED AND SERVED ON THE REMAINING
D. TODD UNITED STATES DISTRICT JUDGE
20, 2016, Plaintiff Elton Keith McCommon
(“McCommon”), who is currently incarcerated at
the Morgan County Correctional Complex (“CCCX”)
in Wartburg, Tennessee, filed a pro se complaint
pursuant to 42 U.S.C. § 1983 accompanied by a motion to
proceed in forma pauperis. (ECF Nos. 1 & 2.) The
complaint concerns McCommon's previous incarceration at
the Haywood County Jail (Jail) in Brownsville, Tennessee. In
an order issued July 21, 2016, the Court granted leave to
proceed in forma pauperis and assessed the civil
filing fee pursuant to the Prison Litigation Reform Act, 28
U.S.C. §§ 1915(a)-(b). (ECF No. 4.) However,
because the entire filing fee was subsequently paid on August
31, 2016 (ECF No. 6), the Court set aside the fee assessment
(ECF No. 7). On March 22, 2015, the Court denied
McCommon's motion to appoint counsel and dismissed the
complaint, but also granted leave to amend. (ECF No. 11.) On
April 13, 2017, McCommon filed an amended complaint. (ECF No.
13.) Pursuant to the amended complaint, the Clerk shall
record the Defendants as Officer Cynthia Croom, former
Haywood County Sheriff Melvin Bonds, attorney Michael Banks,
and Assistant Jail Administrator Cedric Tyus. Defendants are
sued in their individual and official capacities.
alleges that when he discovered that his attorney, Defendant
Banks, was also representing the agency involved in his
he filed a complaint with the Tennessee Board of Professional
Responsibility (TBPR). (ECF No. 13 at 5.) When Banks learned
of the complaint, he allegedly threatened McCommon by stating
he had friends at the Jail, both employees and inmates, so
McCommon should drop the complaint. (Id.) When
McCommon refused to drop the complaint, he was attacked and
beaten by another Jail inmate, David Cage, who told McCommon
that he better drop the complaint against Banks.
(Id.) As a result of that altercation, McCommon was
charged with a disciplinary violation for fighting.
further alleges that Defendant Banks was a member of the
Disciplinary Board at McCommon's disciplinary hearing.
(Id.) At that hearing, Banks allegedly threatened
McCommon with physical harm if McCommon continued to pursue
the complaint against him and also voted to find McCommon
guilty of fighting. (Id.at 6.) As a result of those
threats, McCommon asked for and was granted protective
alleges that after he was placed in protective custody,
Defendant Croom, who controlled the cell locks, deliberately
unlocked McCommon's cell and allowed inmate Lawrence
Tyus, a relative of Defendant Cedric Tyus, to enter
McCommon's cell for the purpose of beating and stabbing
McCommon. (Id. at 7.) McCommon contends that while
Lawrence Tyus was beating him, Defendant Croom told McCommon
that he had better stop the complaints against Defendant
Banks or next time he would be killed. (Id.) The
assault by Lawrence Tyus allegedly resulted in significant
injuries to McCommon, including damaged ribs, bleeding from
being stabbed in the ear, and black eyes. (Id. at
McCommon was at the clinic after the assault, Defendant Croom
allegedly allowed Lawrence Tyus to steal McCommon's
personal belongings from his cell as payment for the assault.
(Id. at 7.) McCommon further contends that Defendant
Cedric Tyus arranged for Lawrence Tyus to be released from
the Jail as a reward for the assault on McCommon.
(Id. at 8.)
alleges the Defendants conspired to violate and did violate
his constitutional rights, inflicting both physical injuries
and emotional pain. (Id.) He seeks both compensatory
and punitive damages.
legal standards for assessing the claims in an inmate's
complaint were set forth in the previous order (ECF No. 11 at
2-5) and will not be reiterated here.
claims against the Defendants in their official capacities
are construed as claims against Haywood County. When a §
1983 claim is made against a municipality or county, a court
must analyze two distinct issues: (1) whether plaintiff's
harm was caused by a constitutional violation; and (2) if so,
whether the municipality is responsible for that violation.
Collins v. City of Harker Heights, Tex., 503 U.S.
115, 120 (1992). The second issue is dispositive of
McCommon's official capacity claims.
government “cannot be held liable solely because it
employs a tortfeasor-or, in other words, a municipality
cannot be held liable under § 1983 on a respondeat
superior theory.” Monell v. Dep't. of Soc.
Serv., 436 U.S. 658, 691 (1978) (emphasis in original);
see also Searcy v. City of Dayton, 38 F.3d
282, 286 (6th Cir. 1994); Berry v. City of Detroit,
25 F.3d 1342, 1345 (6th Cir. 1994). A municipality cannot be
held responsible for a constitutional deprivation unless
there is a direct causal link between a municipal policy or
custom and the alleged constitutional deprivation.
Monell, 436 U.S. at 691-92; Deaton v. Montgomery
Co., Ohio, 989 F.2d 885, 889 (6th Cir. 1993). To
demonstrate municipal liability, a plaintiff “must (1)
identify the municipal policy or custom, (2) connect the
policy to the municipality, and (3) show that his particular
injury was incurred due to execution of that policy.”
Alkire v. Irving, 330 F.3d 802, 815 (6th Cir. 2003)
(citing Garner v. Memphis Police Dep't, 8 F.3d
358, 364 (6th Cir. 1993)). “Where a government
‘custom has not received formal approval through the
body's official decisionmaking channels, ' such a
custom may still be the subject of a § 1983 suit.”
Alkire, 330 F.3d at 815 (quoting Monell,
436 U.S. at 690-91). The policy or custom “must be
‘the moving force of the constitutional violation'
in order to establish the liability of a government body
under § 1983.” Searcy, 38 F.3d at 286
(quoting Polk Co. v. Dodson, 454 U.S. at 326
(citation omitted)). “[T]he touchstone of
‘official policy' is designed ‘to distinguish
acts of the municipality from acts of employees of the
municipality, and thereby make clear that municipal liability
is limited to action for which the municipality is actually
responsible.'” City of St. Louis v.
Praprotnik, 485 U.S. 112, 138 (1988) (quoting
Pembaur v. Cincinnati, 475 U.S. 469, 479-80 (1986))
(emphasis in original).
civil rights plaintiffs are not required to plead the facts
demonstrating municipal liability with particularity,
Leatherman v. Tarrant Cnty Narcotics Intelligence &
Coordination Unit, 507 U.S. 163, 168-69 (1993), the
complaint must be sufficient to put the municipality on
notice of the plaintiff's theory of liability, see,
e.g., Fowler v. Campbell, No. 3:06CV-P610-H,
2007 WL 1035007, at *2 (W.D. Ky. Mar. 30, 2007);
Yeackering v. Ankrom, No. 4:05-CV-00018-M, 2005 WL
1877964, at *2 (W.D. Ky. Aug. 5, 2005); Oliver v. City
of Memphis, No. 04-2074-B, 2004 WL 3316242, at
*4 (W.D. Tenn. Dec. 2, 2004); cf. Raub v. Correctional
Med. Servs., Inc., No. 06-13942, 2008 WL 160611, at *2
(E.D. Mich. Jan. 15, 2008) (denying motion to dismiss where
complaint contained conclusory allegations of a custom or
practice); Cleary v. Cnty of Macomb, No. 06-15505,
2007 WL 2669102, at *20 (E.D. Mich. Sept. 6, 2007) (same);
Morningstar v. City of Detroit, No. 06-11073, 2007
WL 2669156, at *8 (E.D. Mich. Sept. 6, 2007) (same);
Chidester v. City of Memphis, No. 02-2556 MA/A, 2006
WL 1421099, at *3 (W.D. Tenn. June 15, 2005). The allegations
of the complaint fail to identify an official policy or
custom of Haywood County which caused injury to McCommon.
only allegation in the amended complaint concerning Defendant
Bonds is that McCommon “complained” to him in an
unspecified manner but received no response. (ECF No. 13 at
3.) However, McCommon has no claim against Defendant Bonds
merely because of his position as the Sheriff at the time of
the events at issue or his failure to respond to a complaint.
Under § 1983, “[g]overnment officials may not be
held liable for the unconstitutional conduct of their
subordinates under a theory of respondeat
superior.” Ashcroft v. Iqbal, 556 U.S. at
676; see also Bellamy v. Bradley, 729 F.2d 416, 421
(6th Cir. 1984). Thus, “a plaintiff must plead that
each Government-official defendant, through the
official's own official actions, violated the
Constitution.” Iqbal, 556 U.S. at 676.
There must be a showing that the supervisor encouraged the
specific instance of misconduct or in some other way directly
participated in it. At a minimum, a § 1983 plaintiff
must show that a supervisory official at least implicitly
authorized, approved or knowingly acquiesced in the
unconstitutional conduct of the offending subordinates.
729 F.2d at 421 (citation omitted). A supervisory official
who is aware of the unconstitutional conduct of his or her
subordinates, but fails to act, generally cannot be held
liable in his or her individual capacity. Grinter v.
Knight, 532 F.3d 567, 575-76 (6th Cir. 2008);
Gregory v. City of Louisville, 444 F.3d 725, 751
(6th Cir. 2006); Shehee v. Luttrell, 199 F.3d 295,
300 (6th Cir. 1999); Lillard v. Shelby Cnty. Bd. of
Educ., 76 F.3d 716, 727-28 (6th Cir. 1996). A failure to
take corrective action in response to an inmate grievance or
complaint ordinarily does not supply the necessary personal
involvement for § 1983 liability. See George v.
Smith, 507 F.3d 605, 609-10 (7th Cir. 2007)
(“Ruling against a prisoner on an administrative
complaint does not cause or contribute to the