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Carver v. Swing

United States District Court, E.D. Tennessee, Winchester

March 6, 2018

AUSTIN SWING and TIM LOKEY[1], Defendants.



         Plaintiff, Danny Earl Carver, a pro se prisoner, has filed a civil rights complaint pursuant to 42 U.S.C. § 1983 [Doc. 1], as well as a supplement to his original complaint [Doc. 10]. Defendants Swing and Lokey have jointly moved to dismiss Plaintiff's complaint for failure to state a claim upon which relief may be granted [Doc. 19], as well as filed a memorandum in support of their motion to dismiss [Doc. 20]. Plaintiff has not filed a response in opposition, and the time for doing so has now passed. E.D. Tenn. L. R. 7.1, 7.2.

         Also before the Court are Defendants' status motion on whether additional PLRA screening will occur [Doc. 16] and motion for extension of time to file a response to Plaintiff's complaint [Doc. 17]. For the reasons discussed below, Defendants' status motion [Doc. 16] will be GRANTED in part, Defendants' motion for extension of time [Doc. 17] will be GRANTED nunc pro tunc, and Defendants' motion to dismiss [Doc. 19] will be GRANTED.


         Plaintiff filed this civil rights action under 42 U.S.C. § 1983 against Defendants Austin Swing and Tim Lokey, as well as against the Bedford County Sheriff's Department [Doc. 1]. The Court screened the complaint on May 11, 2017, and dismissed the Bedford County Sheriff's Department as a Defendant, but allowed Plaintiff twenty days to amend his complaint to cure the deficiencies noted with his respect to his Eighth Amendment claims [Doc. 9 p. 7]. On May 22, 2017, Plaintiff filed a supplement to his amended complaint [Doc. 10], and the Court determined that Plaintiff had stated a claim under the Eighth Amendment, and permitted service on the remaining two Defendants [Doc. 11]. Defendants Swing and Lokey then filed a motion to dismiss and supporting brief, in which they argue that Plaintiff has failed to state a claim for relief [Docs. 19, 20].


         The Court previously detailed the factual allegations contained in Plaintiff's original complaint, stating:

Bacteria of a kind unknown to Plaintiff, along with dust, rust, mold, mildew and fungi are present inside Plaintiff's cell, the showers, the kitchen, the chow hall, and throughout the structure of the Bedford County Jail [Doc. 1 p.2]. Mere cleaning would remedy these unsanitary and unsafe conditions [Id.]. Plaintiff and several other inmates-none of whom are identified or are named as parties in this lawsuit-have asked Defendant Tim Ioky, the Jail Administrator, to permit them to clean and repair the jail, but he refuses to provide the inmates with proper cleaning supplies [Id.]. Additionally, for months and, in some cases, years, the cells have leaked, but Defendants Ioky and Sheriff Austin Swing refuse to fix the wrongful living conditions [Id.]. Plaintiff is forced to sleep on the floor next to a toilet and, when his cellmates void into the toilet, urine splashes onto Plaintiff, his mattress, and his personal property [Id.]. Plaintiff also has been deprived of sufficient opportunities for physical exercise to maintain proper health [Id.].

[Doc. 9 p. 2-3].

         In Plaintiff's supplement to his original complaint, Plaintiff alleged that he arrived at the Bedford County Jail on December 10, 2015, and was forced to sleep on the floor next to the toilet until March 2016 [Doc. 10 p. 1]. Plaintiff then filed eight grievances, which he addressed to Defendant Lokey [Id.]. Plaintiff alleges that Defendant Lokey responded, “[d]ue to overcrowding, we can't help where you sleep” [Id.]. Ultimately, Plaintiff claims that he was forced to live in a nine-man pod, where at times there was anywhere from twenty-four to thirty people living in the pod [Id.].

         With respect to the presence of black mold, dust, rust, mildew and fungi at the Bedford County Jail, Plaintiff alleges that he filed several grievances from December 2015 until May 2017 to Defendants Lokey and Swing [Id.]. Defendants responded to one of Plaintiff's grievances that “we're trying to get it under control, be patient” [Id.]. Further, Plaintiff alleges that several newspaper reports regarding jail conditions at the Bedford County Jail demonstrate “that both Defendants, Sheriff Austin Swing and Jail Administrator Tim Lokey know about the conditions of the jail” [Id. at 2]. Lastly, Plaintiff alleges that he has filed several grievances about the lack of exercise opportunities, and that he was only allowed to access the “rec yard” sixteen times over a seventeen-month period [Id.]. Plaintiff further claims that the overcrowding at the jail also prevents him from proper exercise [Id. at 3].


         Federal Rule of Civil Procedure 8(a)(2) sets out a liberal standard, requiring only “‘a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to ‘give the [opposing party] fair notice of what the . . . claim is and the grounds upon which it rests.'” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Detailed factual allegations are not required, but a party's “obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions.” Twombly, 550 U.S. at 555. “[A] formulaic recitation of the elements of a cause of action will not do, ” neither will “‘naked assertion[s]' devoid of ‘further factual enhancement[, ]'” nor “an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555, 557).

         When faced with a Rule 12(b)(6) motion, courts must construe the complaint in the light most favorable to the plaintiff, accept all factual allegations as true, draw all reasonable inferences in favor of the plaintiff, and determine whether the complaint contains “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007) (citation omitted). “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.” Iqbal, 556 U.S. at 678. ‚ÄúDetermining whether a complaint ...

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