Montgomery v. Whidbee

• Decision Date: 18 March 2020
• Docket Number: No. 3:19-cv-00747,3:19-cv-00747
• Citation: 446 F.Supp.3d 306
• Parties: Gary MONTGOMERY, Plaintiff, v. Kendra WHIDBEE, et al., Defendants.
• Court: U.S. District Court — Middle District of Tennessee

446 F.Supp.3d 306

Gary MONTGOMERY, Plaintiff,

v.Kendra WHIDBEE, et al., Defendants.

No. 3:19-cv-00747

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

Filed March 18, 2020

Gary Montgomery, Nashville, TN, pro se.

MEMORANDUM OPINION

WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE

Gary Montgomery, a pretrial detainee in the custody of the Davidson County Sheriff's Office in Nashville, Tennessee, has filed a pro se complaint under 42 U.S.C. § 1983 (Doc. No. 1) and an amended application to proceed in forma pauperis (IFP). (Doc. No. 7) He has also filed a motion to appoint counsel. (Doc. No. 5)

I. Application to Proceed IFP

Under the Prison Litigation Reform Act (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 required by 28 U.S.C. § 1914(a). Because it is apparent from Plaintiff's IFP application that he lacks the funds to pay the entire filing fee in advance, his application (Doc. No. 7) will be granted.

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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (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, 129 S.Ct. 1937. Applying this standard, the Court must view the complaint in the light most favorable to Plaintiff and 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, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (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 F. App'x 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

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, 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

Plaintiff alleges that he was unable to obtain an absentee ballot to cast a vote in the 2016 presidential election because of delays and a lack of helpfulness from Program Manager Sheree Amos and his case manager at the time, Ms. Miller. (Doc. No. 1 at 10) Around July 1, 2016, Amos told Plaintiff that he could "have whatever [he] need[ed]" to submit a ballot application after completing a program in which he was enrolled. (Id. ) Upon finishing the program at the end of July 2016 and being moved to a new housing pod, Plaintiff requested Miller's assistance in obtaining an absentee ballot, and Miller responded, "It's not my job to obtain ballots." (Id. )

On July 2, 2018, after again being moved to a different housing pod, Plaintiff requested assistance from case manager Kendra Whidbee in securing an absentee ballot and bankruptcy forms. (Id. ) And on August 7, 2018, Plaintiff made another request for this assistance from Ms. Jackson, who was filling in for Whidbee that day. (Id. at 10–11) On September 18, 2018, after Plaintiff filed numerous complaints concerning Whidbee's lack of responsiveness and "had also brought up receiving a letter from the [Election] [C]ommission advising [he] missed the deadline," Plaintiff "went into case manager Whidbee's office to conduct a phone call" with his sister. (Id. at 11–12) During that call, Plaintiff told his sister that he believed the jail staff was intentionally trying to keep him from voting. (Id. at 12) Plaintiff describes the ensuing events as follows:

Mrs. Whidbee was being nosy and interrupted [the] phone call and started yelling at the Plaintiff. Plaintiff ignored Whidbee's outburst and calmly concluded his phone call. Once completed Plaintiff then calmly exercised his right to free speech telling Whidbee she should mind her own business. Plaintiff did not raise his voice or use foul language, then calmly walked out of the room.

(Id. at 12–13) Plaintiff was placed in a holding cell shortly after this incident in Whidbee's office, and, within an hour, was transferred to a different housing pod. (Id. at 13)

Whidbee filed a disciplinary report charging Plaintiff with being disruptive and threatening during the September 18 incident in her office. (Id. ) He was convicted on this charge without being permitted to call Whidbee to testify, and his appeal was heard by Whidbee's supervisor, G. Earl. (Id. at 13–14) The disciplinary conviction was sustained, and Plaintiff was punished for the infraction. (Id. at 14)

Meanwhile, on October 8, 2018,¹ in the new housing pod, Plaintiff's new case manager Kinya Jamison provided him an application to register to vote and to request an absentee ballot. (Id. at 11) The application was marked at the top with a submission deadline of October 16, 2018. (Id. ) Plaintiff promptly completed the application and returned it to Jamison, who assured Plaintiff that she would have it notarized by Earl, the Program Director. (Id. ) The notarized application was not returned to Plaintiff until October 12, when he immediately placed it in the prison mail. (Id. at 11–12) Despite giving the application to prison authorities for mailing ahead of the submission deadline, Plaintiff subsequently "received a letter from the [Election] Commission advising the application was late filed." (Id. at 12) As a result, Plaintiff was unable to vote in the 2018 mid-term elections. (Id. at 12) Plaintiff reported this untimely processing and his inability to vote to Facility Administrator Harold Taylor, whose response was to blame Plaintiff. (Id. )

Plaintiff claims that he was denied his right to vote "in violation of [the] Equal Protection Clause of the Fourteenth Amendment to the Constitution"; that he was retaliated against and defamed by Whidbee when she falsely charged him with threatening behavior and had him moved to a different housing pod; and, that he was deprived of due process during the disciplinary hearing and appeal. (Id. at 14–16) He further claims that all Defendants acted negligently under state law. (Id. ) He seeks declaratory and injunctive relief, as well as compensatory and punitive damages against the Davidson County Sheriff's Office and John Does 1–5, Defendants Whidbee, Jamison, Miller, Amos, and Jackson in their individual capacities, and Defendants Earl and Taylor in their individual and official capacities.

D. Analysis

1. Right to Vote

" ‘[V]oting is of the most fundamental significance under our constitutional structure.’ " Mays v. LaRose, 951 F.3d 775, 783 (6th Cir. 2020) (quoting Ill. Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979) ). The right to vote may be "subject to the imposition of state standards," Lassiter v. Northampton Cty. Bd. of Elections, 360 U.S. 45, 51, 79 S.Ct. 985, 3 L.Ed.2d 1072 (1959), but those standards cannot unduly burden a particular group of voters, such as those who are incarcerated. Mays, 951 F.3d at 782–83. For instance, although "there is no constitutional right to an absentee ballot," id. at 792 (citing McDonald v. Bd. of Election Comm'rs, 394 U.S. 802, 807–09, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969) ), the State cannot impose an "absolute bar to voting" upon pretrial detainees otherwise entitled to vote without running afoul of the Equal Protection Clause of the Fourteenth Amendment. O'Brien v. Skinner, 414 U.S. 524, 529–30, 94 S.Ct. 740, 38 L.Ed.2d 702 (1974) (distinguishing McDonald, 394 U.S. at 808 n.7, 809, 89 S.Ct. 1404, which affirmed the denial of relief to allegedly disenfranchised detainees because "there [was] nothing in the record to show that appellants [were] in fact absolutely prohibited from voting by the State"). But where "the possibility [exists] that the State might furnish some other alternative means of voting" than the one sought by the detainee, no constitutional violation is established. See id. at 529, 94 S.Ct. 740.

In the case of a detainee alleging...