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Turner v. Parker

United States District Court, M.D. Tennessee, Nashville Division

May 21, 2018

RANDALL TURNER, No. 133233, Plaintiff,
v.
TONY PARKER, et al., Defendants.

          MEMORANDUM

          Aleta A. Trauger, United States District Judge.

         Randall Turner, an inmate of the Turney Center Industrial Complex in Only, Tennessee, brings this pro se action under 42 U.S.C. § 1983 Tony Parker, Jason Woodall, Jonathan Lebo, Johnny Fitz, Wanda Markland, Charles Sweat, Captain f/n/u Taylor, Kevin Johnson, and Arthur Bellott, alleging violations of the plaintiff's civil rights. (Docket No. 1). The plaintiff seeks pauper status (Docket Nos. 2, 11, 19, 20, 21) and the appointment of counsel (Docket No. 3). The plaintiff also has filed two motions to supplement the record (Docket Nos. 8 and 9), a notice (Docket No.15), and a motion for an extension of time (Docket No. 22).

         I. Application to Proceed In Forma Pauperis

         The plaintiff falls within the scope of 28 U.S.C. § 1915(g), which bars prisoners from bringing a civil action or appealing a judgment in a civil action in forma pauperis if the prisoner has, on three (3) or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 28 U.S.C. § 1915(g).

         Because he has had at least three lawsuits previously dismissed as frivolous, [1] plaintiff Turner may not proceed in forma pauperis and instead must pay the full filing fee in advance in order to pursue his lawsuit, unless he is under imminent danger of serious physical injury. Wilson v. Yaklich, 148 F.3d 596, 603-04 (6th Cir. 1998).

         The plaintiff, who is not a member of a gang, alleges that he is in imminent danger because at the West Tennessee State Penitentiary, non-gang members are housed with gang members, a practice that the defendants know poses a risk of harm to non-gang member inmates. In particular, on November 9, 2017, members of the Crips gang “strip searched” and assaulted the plaintiff in the kitchen restroom. (Docket No. 1 at 2). As a result of the assault, the plaintiff received four stitches over his right eye. (Id. at 3). Although the plaintiff met with a counselor about being placed in protective custody on November 22, 2017, the plaintiff was moved from a single cell to a double cell with a Vice Lord gang member on December 7, 2017. (Id. at 7). Other gang members “have been yelling through the [cell] doors that the Plaintiff is gay . . . trying to get [the Plaintiff] and V. Lord into a fight.” (Id.) On December 18, 2017, when the plaintiff was in the shower, the Vice Lord gang member tried to take all of the plaintiff's property. (Id.) On December 24, 2017, officers Doyle and McKinney tried to move the plaintiff into a cell with a member of the Crips gang and the plaintiff refused to move. (Id. at 8). On December 26, 2017, a Vice Lord gang member delivered the plaintiff's lunch tray to him, which the plaintiff refused to eat, fearing for his safety as no maximum security inmate is supposed to have access to the food of an inmate in protective custody. (Id. at 9).

         The plaintiff was subsequently transferred and is currently confined at the Turney Center Industrial Complex. He alleges that, like at the West Tennessee State Penitentiary, non-gang member inmates are housed with known gang member inmates, and that the gang inmates at Turney Center are allowed to “run wild.” (Docket No. 17 at 2). According to the plaintiff, these inmates have access to knives and previously have engaged in attacks with the knives. (Id.) The plaintiff further alleges that prison officials are unwilling to protect the plaintiff from harm by gang members because these defendants refuse to move the plaintiff “to a less violent unit.” (Id. at 1).

         For the purposes of § 1915(g), the court considers whether a plaintiff is in imminent danger at the time of the filing of the complaint. Vandiver v. Vasbinder, 416 Fed.Appx. 560, 562 (6th Cir. 2011) (“[T]he plain language of § 1915(g) requires the imminent danger to be contemporaneous with the complaint's filing.”). Although the United States Court of Appeals for the Sixth Circuit has not offered a precise definition of imminent danger, it has suggested that the threat of serious physical injury “must be real and proximate.” Rittner v. Kinder, 290 Fed.Appx. 796, 797 (6th Cir. 2008). Moreover, the Sixth Circuit has noted that “[t]he imminent danger exception is essentially a pleading requirement subject to the ordinary principles of notice pleading.” Vandiver, 416 Fed.Appx. at 562.

         As a pro se plaintiff, Turner is entitled to have his complaint liberally construed. Vandiver, 416 Fed.Appx. at 562. Moreover, at this stage in the proceedings, the court must accept as true the factual allegations in the complaint, unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992). The court cannot decline pauper status simply because it finds the factual allegations of imminent danger to be improbable or unlikely. Id.

         With these principles in mind, the court finds that the complaint alleges a presently existing, continuing imminent danger to the plaintiff's well-being. Although the plaintiff's allegations regarding his confinement at the West Tennessee State Penitentiary no longer constitute imminent danger of serious physical harm because the plaintiff has been transferred to another facility, the plaintiff alleges that his current place of confinement, Turney Center Industrial Complex, exposes the plaintiff to similar safety issues. According to the plaintiff, non-gang member inmates are housed with known inmate gang members who are allowed to “run wild.” (Docket No. 17 at 2). According to the plaintiff, the inmate gang members have access to knives, and the plaintiff fears for his safety. (Id.) The plaintiff further alleges, as an ongoing matter, that prison officials (excluding Ms. Himes) are unwilling to protect the plaintiff from harm by gang members because they refuse to move the plaintiff away from the gang member inmates. (Id. at 1).

         The plaintiff's allegations are not necessarily delusional or irrational, and the court must, for now, accept them as true. The court therefore finds that the plaintiff has alleged imminent danger of serious physical injury. In addition, the plaintiff specifically requests injunctive relief to prevent the plaintiff from being housed with inmate gang members to keep their threats of harm to the plaintiff from coming to fruition. Accordingly, the court will grant the plaintiff permission to seek pauper status.

         II. PLRA Screening Standards

         Having determined that the plaintiff may proceed as a pauper, the plaintiff's complaint is before the court for an initial review pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(a). Under 28 U.S.C. § 1915(e)(2)(B), the court must dismiss any portion of a civil complaint filed in forma pauperis that fails to state a claim upon which relief can be granted, is frivolous, or seeks monetary relief from a defendant who is immune from such relief. Section 1915A similarly requires initial review of any “complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity, ” i d. § 1915A(a), and summary dismissal of the complaint on the same grounds as those articulated in § 1915(e)(2)(B). Id. § 1915A(b).

         III. Motions to Supplement and Notice

         The plaintiff filed two motions to supplement his complaint (Docket Nos. 8 and 9) and a notice to the court (Docket No. 15).[2] The first motion to supplement documents the plaintiff's efforts to exhaust his administrative remedies prior to filing this lawsuit. The second motion to supplement provides additional context for the claims raised in the original complaint. No. new defendants or claims are added.

         In his notice to the court, the plaintiff describes events occurring after the plaintiff's transfer from the West Tennessee State Penitentiary to the Morgan County Correctional Complex and then to the Turney Center Industrial Complex. In his notice, the plaintiff seeks to add another defendant to this action, Dr. f/n/u Bigham. (Docket No. 15). The plaintiff alleges that Bigham, who works at the Turney Center Industrial Complex, refuses to provide medical treatment to the plaintiff. (Id. at 2). The court construes the plaintiff's notice as a motion to amend the complaint.

         Rule 15(a) (2) of the Federal Rules of Civil Procedure states that leave to amend should be freely given “when justice so requires.” In deciding whether to grant a motion to amend, courts should consider undue delay in filing, lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of amendment. Brumbalough v. Camelot Care Ctrs., Inc., 427 F.3d 996, 1001 (6th Cir. 2005).

         There appears to be no undue prejudice to the opposing parties by permitting the plaintiff to amend his complaint at this time; no defendants have been served. With regard to the futility of the plaintiff's proposed amendment, the court finds that the law is well settled that the Eighth Amendment to the United States Constitution requires that inmates be provided with reasonably adequate food, clothing, shelter, sanitation, recreation, and medical care. See Grubbs v. Bradley, 552 F.Supp. 1052, 1119-24 (M.D. Tenn. 1982). The failure to provide such necessities is a violation of an inmate's right to be free from cruel and unusual punishment. See Bellamy v. Bradley, 729 F.2d 416, 419 (6th Cir. 1984). The United States Supreme Court has held that deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976); Brooks v. Celeste, 39 F.3d 125, 127 (6thCir. 1994). The court finds that the plaintiff's proposed amendment is not futile; therefore, the plaintiff's motion to amend will be granted, and Dr. f/n/u Bigham will be added as a defendant in his or her individual capacity to this action.

         The court will grant the motions to supplement and screen the original complaint, as informed by the plaintiff's supplements to the original complaint and the notice to the court, pursuant to the Prison Litigation Reform Act ...


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