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Gennoe v. Washburn

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

November 4, 2019

RICKY JOE GENNOE, Plaintiff,
v.
RUSSELL WASHBURN, Warden, et al., Defendants.

          MEMORANDUM OPINION

          Aleta A. Trauger United States District Judge.

         The plaintiff, Ricky Joe Gennoe, is a state inmate who was formerly incarcerated at the Trousdale Turner Correctional Complex in Hartsville, Tennessee. Proceeding pro se, the plaintiff filed a complaint under 42 U.S.C. § 1983 (Doc. No. 1), a motion to appoint counsel (Doc. No. 2), and an application for leave to proceed in forma pauperis (IFP). (Doc. No. 1 at 12-14; Doc. No. 1-2.) Shortly after receiving these filings, the court received an amended complaint (Doc. No. 6) and a notice from the plaintiff that he had been transferred to the Whiteville Correctional Facility in Whiteville, Tennessee. (Doc. No. 7.)

         The case is before the court for a ruling on the IFP application and for an initial review pursuant to the Prison Litigation Reform Act (PLRA), 28 U.S.C. §§ 1915(e)(2) and 1915A, and 42 U.S.C. § 1997e.

         I. Application to Proceed IFP

         Under the PLRA, 28 U.S.C. § 1915(a), a prisoner bringing a civil action may apply for permission to file suit without prepaying the filing fee of $350.00 required by 28 U.S.C. § 1914(a). Because it is apparent from the plaintiff's IFP application that he lacks the funds to pay the entire filing fee in advance, his application will be granted by separate order.

         II. Initial Review of the Complaint

         A. PLRA Screening Standard

         Pursuant to 28 U.S.C. § 1915(e)(2)(B), the court must dismiss any IFP complaint that is facially frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. Similarly, 28 U.S.C. § 1915A provides that the court shall conduct an initial review of any prisoner complaint against a governmental entity, officer, or employee, and shall dismiss the complaint or any portion thereof if the defects listed in Section 1915(e)(2)(B) are identified. Under both statutes, this initial review of whether the complaint states a claim upon which relief may be granted asks whether it contains “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face, ” such that it would survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

         “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. Applying this standard, the court must view the complaint in the light most favorable to the plaintiff and, again, must take all well-pleaded factual allegations as true. Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (citations omitted)). Furthermore, pro se pleadings must be liberally construed and “held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). However, pro se litigants are not exempt from the requirements of the Federal Rules of Civil Procedure, Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989), nor can the court “create a claim which [a plaintiff] has not spelled out in his pleading.” Brown v. Matauszak, 415 Fed.Appx. 608, 613 (6th Cir. 2011) (quoting Clark v. Nat'l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975)).

         B. Section 1983 Standard

         The plaintiff seeks to vindicate alleged violations of his federal constitutional rights under 42 U.S.C. § 1983. Section 1983 creates a cause of action against any person who, acting under color of state law, deprives an individual of any right, privilege or immunity secured by the Constitution or federal laws. Wurzelbacher v. Jones-Kelley, 675 F.3d 580, 583 (6th Cir. 2012). Thus, to state a Section 1983 claim, the plaintiff must allege two elements: (1) a deprivation of rights secured by the Constitution or laws of the United States, and (2) that the deprivation was caused by a person acting under color of state law. Carl v. Muskegon Cty., 763 F.3d 592, 595 (6th Cir. 2014).

         C. Allegations and Claims

         In his amended complaint, [1] the plaintiff alleges that in the early morning hours of February 5, 2019, he was sexually assaulted by his cellmate after having been drugged by him the night before. (Doc. No. 1 at 1.) At around 8:00 a.m., the plaintiff stopped Sergeant Scottie Roach at his cell door and slid him a note, in which the plaintiff revealed that he had been sexually assaulted hours earlier and needed Roach to either bring him a phone to report the assault to the Prison Rape Elimination Act (PREA) coordinator, or report the assault to PREA himself. (Id. at 3.) Sergeant Roach smiled and walked away, leaving the plaintiff housed in the same cell. (Id.)

         Around midday on February 5th, the plaintiff again saw Sergeant Roach and asked if he had addressed the issue raised in the note. Sergeant Roach responded that it was not his problem and made an obscene gesture toward the plaintiff before leaving him in the same cell, still housed with his assailant. (Id.) The plaintiff subsequently filed a grievance over the matter. (Id.)

         On February 6th, the plaintiff stopped mental health counselor Reed at his cell door and asked to be pulled from his cell for an urgent consultation. (Id. at 4.) Counselor ...


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