United States District Court, E.D. Tennessee, Chattanooga
MEMORANDUM OPINION AND ORDER
JORDAN, UNITED STATES DISTRICT JUDGE.
pro se, Robert Zenas Whipple, III (“Plaintiff”),
a prisoner in the custody of the Tennessee Department of
Correction (“TDOC”) now housed in the Bledsoe
County Correctional Complex (“BCCX”), brings this
civil rights action for injunctive, declaratory, and monetary
relief under 42 U.S.C. §§ 1983, 1985 and 1986 [Doc.
8]. Plaintiff's primary claim is that Defendants
retaliated against him and conspired to retaliate against him
by denying him parole. Defendants are the Tennessee Board of
Parole; Parole Board Members Zane Duncan, Gary Faulcon, and
Barett Rich; Parole Board General Counsel Columba McHale;
Parole Board Assistant General Counsel Rob Clark; BCCX Parole
Officer Daryl Beard; State of Tennessee Assistant Attorneys
General Madeline Brough and Eric Fuller; TDOC Staff Attorney
Torrey Grimes; BCCX Associate Warden of Treatment Brett
Cobble; BCCX Grievance Board Chairman Dustin Brown; BCCX Site
2 Mail Room Officer McBride; and BCCX Information Technology
Department employee Chris Odenberger.
THE FILILNG FEE
has also filed an application for leave to proceed in
forma pauperis and a second such application, with the
second application being accompanied by a certified copy of
his inmate trust account statement [Docs. 2, 14]. The first
application, along with the inmate trust account statement
supplied in the second application reflect that Plaintiff
lacks the financial resources to pay the full filing fee all
at once [Docs. 2, 14].
Plaintiff's first application to proceed in forma
pauperis [Doc. 2] is GRANTED, and he
may proceed in this lawsuit without prepayment of the filing
fee. However, because Plaintiff is a prisoner, he is
ASSESSED the civil filing fee of three
hundred and fifty dollars ($350), though he will be permitted
to pay the fee on an installment basis. McGore v.
Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997)
(incarcerated prisoners are required by statute to pay the
filing fee), overruled on other grounds by Jones v.
Bock, 549 U.S. 199 (2007).
to 28 U.S.C. § 1915(b)(1)(A) and (B), the custodian of
Plaintiff's inmate trust account at the BCCX is directed
to submit to the Clerk, U.S. District Court; 900 Georgia
Avenue, Room 309, Chattanooga, Tennessee 37401, as an initial
partial payment, whichever is greater of: (a) twenty percent
(20%) of the average monthly deposits to Plaintiff's
inmate trust account; or (b) twenty percent (20%) of the
average monthly balance in his inmate trust account for the
six-month period preceding the filing of the complaint.
the custodian shall submit twenty percent (20%) of
Plaintiff's preceding monthly income (or income credited
to Plaintiff's trust account for the preceding month),
but only when such monthly income exceeds ten dollars ($10),
until the full filing fee of three hundred and fifty dollars
($350), as authorized under 28 U.S.C. § 1914(a), has
been paid to the Clerk. 28 U.S.C. § 1915(b)(2).
Clerk is DIRECTED to send a copy of this
Order to the custodian of inmate trust accounts at the BCCX
to ensure that the inmate trust account custodian complies
with that portion of the Prison Litigation Reform Act
relating to payment of the filing fee. The Clerk further is
DIRECTED to forward a copy of the Order to
Tony C. Parker, TDOC Commissioner, and to the Court's
financial deputy. This Order shall be placed in
Plaintiff's institutional file and follow him if he is
transferred to another correctional facility.
second application for leave to proceed without prepayment of
the filling fee [Doc. 14] is DENIED as moot.
SCREENING and LEGAL STANDARDS
Court must now review the complaint to determine whether it
states a claim entitling Plaintiff to relief or is frivolous
or malicious or seeks monetary relief from a defendant who is
immune from such relief. 28 U.S.C. § 1915(e)(2) and
§ 1915A. If so, this suit must be dismissed. In
performing this task, the Court bears in mind the rule that
pro se pleadings filed in civil rights cases must be
liberally construed and held to a less stringent standard
than formal pleadings drafted by lawyers. Haines v.
Kerner, 404 U.S. 519, 520 (1972).
the complaint must be sufficient “to state a claim to
relief that is plausible on its face, ” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007),
which simply means that the factual content pled by a
plaintiff must permit a court “to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 556). The
standard articulated in Twombly and Iqbal
“governs dismissals for failure state a claim under
[§§ 1915A(b)(1) and 1915(e)(2)(B)(ii)] because the
relevant statutory language tracks the language in Rule
12(b)(6).” Hill v. Lappin, 630 F.3d 468,
470-71 (6th Cir. 2010).
order to state a claim under 42 U.S.C. § 1983, Plaintiff
must establish that he was deprived of a federal right by a
person acting under color of state law. See Black v.
Barberton Citizens Hospital, 134 F.3d 1265, 1267 (6th
Cir. 1998); see also Braley v. City of Pontiac, 906
F.2d 220, 223 (6th Cir. 1990) (“Section 1983 does not
itself create any constitutional rights; it creates a right
of action for the vindication of constitutional guarantees
Court examines the claims in the amended
complaint under these guidelines.
asserts claims for a retaliatory denial of parole and a
retaliatory conspiracy to deny him parole, to inflict cruel
and unusual punishment upon him, and to deny him access to
the courts, due process, and equal protection [Doc. 8
pp.1-2]. In addition to his federal claims, Plaintiff
presents state tort claims for intentional infliction of
emotional distress and for negligent infliction of emotional
distress [Id. at 2, 21-22]. Plaintiff sorts his
claims into fifteen counts: Conspiracy (Counts I-VI);
Retaliation (Counts VII-VIII); Access to Courts (Count IX);
Cruel and Unusual Punishments (Count X); Due Process (Count
XI); Equal Protection (Count XII); and State Torts of
Intentional and Negligent Infliction of Emotional Distress
(Counts XIII-XIV). The last count, Count XV, is not a cause
of action at all, but instead an application for a common law
writ of certiorari.
first contends that he was denied parole as a reprisal for
his repeatedly writing letters to TDOC Attorney Grimes
requesting documents under the Public Records Act. Plaintiff
believes that Defendant Grimes resented these requests. In
January of 2017, Defendant Grimes tried to prevent Plaintiff
from using privileged mail envelopes, and she did so to
retaliate against him for his use of the Public Records Act.
Grimes' cited conduct interfered with Plaintiff's
prosecution of two “active” civil rights
was not provided the documents he sought under the Public
Records Act. Plaintiff then sued the Parole Board for access
to his records. Defendant Brough represented defendants in
the Parole Board lawsuit. In settlement of the case, the
Parole Board paid the filing fee, reimbursed Plaintiff $1.65
for copying costs, and supplied him with his non-confidential
parole records. Plaintiff believes that Defendants Duncan,
Faulcon, Rich, McHale, Clark, Beard, and Brough experienced
humiliation and anger because they had to settle a lawsuit
with a mere prisoner.
next claims that he was denied parole to retaliate against
him for filing a second § 1983 lawsuit alleging a
retaliatory transfer from the Turney Center prison to BCCX.
Defendant Fuller represented Defendants in that suit.
Defendant Fuller submitted filings in the Turney Center
lawsuit that displayed animosity toward Plaintiff, including
the filing of a motion that sought to have Plaintiff declared
a vexacious litigator. Defendant Fuller also opposed
injunctive relief that Plaintiff requested by submitting
Defendant Grimes's affidavit stating that any prison
disciplinary report issued to Plaintiff that was later
dismissed had been been removed from Plaintiff's
institutional file [Doc. 8 ¶¶ 20-28].
directs his next contentions to this instant civil rights
case, maintaining that he had prepared a draft of the
complaint on a computer provided for use of inmates in the
BCCX annex and that, afterwards, Defendant Odenberger, acting
on Defendant Cobble's order, seized the computer. Later,
Defendant Odenberger refused to print files contained on the
computer to enable Plaintiff to reply to a summary judgment
motion filed in the Turney Center lawsuit. Because Plaintiff
had no copies of his Turney Center suit files, he was
required to seek additional time to file a reply in that suit
and to request an order compelling the return of his legal
work. Plaintiff's requests in the Turney Center lawsuit
are still pending. Plaintiff maintains that the seizure of
the computer was a step taken in furtherance of a conspiracy
to curtail Plaintiff's lawsuits, grievances, and
complaints and to retaliate for such.
LAW AND ANALYSIS
Official/Individual Capacity Claims for Damages
has named as Defendants the Tennessee Board of Parole,
members of the Parole Board, TDOC employees, Parole Board and
TDOC attorneys, and attorneys with the Tennessee Attorney
General's Office. Defendant Parole Board is an agency of
the State of Tennessee and the remaining Defendants are
employees of that agency and other State of Tennessee
agencies, such as the TDOC, or the Tennessee Attorney
General's Office. All Defendants have been sued in both
their official and individual capacities.
“a suit against a state official in his or her official
capacity is not a suit against the official but rather is a
suit against the official's office.” Will v.
Mich. Dep't of State Police, 491 U.S. 58, 71 (1989)
(citing Brandon v. Holt,469 U.S. 464, 471 (1985)).
This means that “neither a State nor its officials
acting in their official capacities are ‘persons'
under § 1983, ” who are subject to suit for