United States District Court, W.D. Tennessee, Eastern Division
ORDER DISMISSING COMPLAINT AND GRANTING LEAVE TO
D. TODD UNITED STATES DISTRICT JUDGE.
27, 2018, Plaintiff Scott Kilian and two other inmates, all
of whom are incarcerated at the Whiteville Correctional
Facility (WCF) in Whiteville, Tennessee, filed a pro
se complaint pursuant to 42 U.S.C. § 1983. (ECF No.
1.) Each Plaintiff also filed his own motion to proceed
in forma pauperis. (ECF Nos. 2, 3 & 4.) The
Court issued an order on September 26, 2018, that, inter
alia, severed the Plaintiffs' claims and directed
the Clerk to open separate cases for the other two
Plaintiffs, granted Kilian leave to proceed in forma
pauperis, and assessed him the civil filing fee pursuant
to the Prison Litigation Reform Act (PLRA), 28 U.S.C.
§§ 1915(a)-(b). (ECF No. 6.) The Clerk shall record
the Defendants as the former WCF Warden, Tamara
Ford; Rosheda White, Unit Manager; and First
Name Unknown (FNU) Cleaves, Unit Counselor.
alleges that the WCF no longer has a “protective
custody pod” and instead has instituted a new policy,
under which inmates seeking protective custody must refuse
their cell assignment, receive a disciplinary write up, and
transfer to the “refuse cell assignment pod.”
(ECF No. 1 at PageID 2.) The designated “refuse cell
assignment pod, ” according to Kilian, is in I-Unit.
(Id.) On April 1, 2018, WCF officials allegedly
announced that I-Unit would be an open, general population
pod. (Id.) Kilian alleges that the Defendants told
the inmates that “all of ‘you scared
motherfuckers will just need to learn how to fight, because
CCA is apparently tired of protecting y'alls
asses.'” (Id. at PageID 2, 4.) Kilian
alleges that he is housed in segregation because he
previously was assaulted by gangs. (Id. at PageID
4.) When he grieved the assault, he was told to “check
in to P.C., ” which is the protective custody unit that
no longer exists at the WCF. (Id.) Kilian claims
that in I-Unit, the televisions have been stolen, inmates are
assaulted daily, violent prisoners sneak in to attack I-Unit
inmates, and black mold grows on the walls. (Id.)
Kilian alleges he showed Counselor Cleaves the mold and
grieved the issue to White and Ford but was told simply to
“wash it off or something.” (Id. at
seeks a permanent injunction “to ensure that the
Whiteville Correctional Facility has an active, running,
operational, and secure protective custody segregations
housing unit.” (Id. at PageID 6.) He wants
full access to media, disciplinary action taken against the
Defendants, removal of all black mold from the cells, and
$10, 000 in compensatory damages. (Id.)
Court is required to screen prisoner complaints and to
dismiss any complaint, or any portion thereof, if the
(1) is frivolous, malicious, or fails to state a claim upon
which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from
28 U.S.C. § 1915A(b); see also 28 U.S.C. §
assessing whether the complaint in this case states a claim
on which relief may be granted, the standards under
Fed.R.Civ.P. 12(b)(6), as stated in Ashcroft v.
Iqbal, 556 U.S. 662, 677-79 (2009), and in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007),
are applied. Hill v. Lappin, 630 F.3d 468, 470-71
(6th Cir. 2010). The Court accepts the complaint's
“well-pleaded” factual allegations as true and
then determines whether the allegations “plausibly
suggest an entitlement to relief.'” Williams v.
Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (quoting
Iqbal, 556 U.S. at 681). Conclusory allegations
“are not entitled to the assumption of truth, ”
and legal conclusions “must be supported by factual
allegations.” Iqbal, 556 U.S. at 679. Although
a complaint need only contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief, ” Fed.R.Civ.P. 8(a)(2), Rule 8 nevertheless
requires factual allegations to make a
“‘showing,' rather than a blanket assertion,
of entitlement to relief.” Twombly, 550 U.S.
at 555 n.3.
se complaints are to be held ‘to less stringent
standards than formal pleadings drafted by lawyers,' and
should therefore be liberally construed.”
Williams, 631 F.3d at 383 (quoting Martin v.
Overton, 391 F.3d 710, 712 (6th Cir. 2004)). Pro
se litigants, however, are not exempt from the
requirements of the Federal Rules of Civil Procedure.
Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989);
see also Brown v. Matauszak, 415 Fed.Appx. 608, 612,
613 (6th Cir. Jan. 31, 2011) (affirming dismissal of pro
se complaint for failure to comply with “unique
pleading requirements” and stating “a court
cannot ‘create a claim which [a plaintiff] has not
spelled out in his pleading'” (quoting Clark v.
Nat'l Travelers Life Ins. Co., 518 F.2d
1167, 1169 (6th Cir. 1975))).
filed his complaint pursuant to 42 U.S.C. § 1983, which
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for
redress . . . .
state a claim under § 1983, a plaintiff must allege two
elements: (1) a deprivation of rights secured by the
“Constitution and laws” of the United States (2)
committed by a defendant acting under color of state law.
Adickes v. S.H. Kress & Co., 398 U.S. 144, 150
extent Kilian sues the Defendants in their official
capacities, his claims are against CoreCivic, which manages
the WCF. “A private corporation that performs the
traditional state function of operating a prison acts under
color of state law for purposes of § 1983.”
Thomas v. Coble, 55 Fed.Appx. 748, 748 (6th Cir.
2003) (citing Street v. Corr. Corp. of Am., 102 F.3d
810, 814 (6th Cir. 1996)). The Sixth Circuit has applied the
standards for assessing municipal liability to claims against
private corporations that operate prisons or provide medical
care or food services to prisoners. Id. at 748-49;
Street, 102 F.3d at 817-18; Johnson v. Corr.
Corp. of Am., 26 Fed.Appx. 386, 388 (6th Cir. 2001);
see also Eads v. State of Tenn., No. 1:18-cv-00042,
2018 WL 4283030, at *9 (M.D. Tenn. Sept. 7, 2018). To prevail
on a § 1983 claim against CoreCivic, ...