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Whipple v. Tennessee Board of Paroles

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

March 19, 2018




         Acting 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.


         Plaintiff 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].[1]

         Accordingly, 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).

         Pursuant 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.

         Thereafter, 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).

         The 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.

         Plaintiff's second application for leave to proceed without prepayment of the filling fee [Doc. 14] is DENIED as moot.


         The 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).

         Still, 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).

         In 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 found elsewhere.”).

         The Court examines the claims in the amended complaint[2] under these guidelines.


         Plaintiff 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.

         Plaintiff 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 lawsuits.

         Plaintiff 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.

         Plaintiff 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].

         Plaintiff 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.


         A. Official/Individual Capacity Claims for Damages

         Plaintiff 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.

         However, “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 damages ...

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