Powell v. Correct Care Solutions et al

Filing 7

MEMORANDUM OPINION AND ORDER: (1) Powell's 3 Motion for Leave to Proceed in forma pauperis is GRANTED. (2) The $50 administrative fee is WAIVED. 28 U.S.C. § 1915 requires that Powell pay the $350 filing fee. (3) Within 28 days, Powell MUST PAY $6.23 to the Clerk as an initial partial filing fee. (4) Clerk shall open an account in Powell's name for receipt of the filing fee. Clerk shall complete Notice of Payment Form (EDKy 525). Clerk shall send a copy of this Ord er and the Notice of Payment Form to the Jailer/Warden of the institution as well as the Office of the General Counsel for the Dept of Corrections in Frankfort, KY. (5) Each month, Powell's custodian shall send the Clerk a payment in an amount e qual to 20% of Powell's income for the preceding month out of his inmate trust fund account, but only if the amount in the acct exceeds $10. Custodian shall then continue monthly payments until the entire $350 is paid. (6) Powell& #039;s 5 Motion to Appoint Counsel is DENIED. (7) Powell's Eighth Amendment claims are DISMISSED, with prejudice. (8) Powell's state law negligence claims are DISMISSED, without prejudice. (9) This action is DISMISSED and STRICKEN from the Court's docket. (10) A corresponding judgment will be entered this date. Signed by Judge Karen K. Caldwell on October 17, 2017. (Attachments: # 1 EDKy 525) (AWD)cc: Pla via US Mail,F,Jailer/Warden,Office of General Counsel

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
JAMES POWELL,
Plaintiff,

Civil Action No. 5:17-397-KKC

v.
CORRECT CARE SOLUTION, ET. AL.,

MEMORANDUM OPINION
AND ORDER

Defendants.

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James Powell is an inmate at the Northpoint Training Center, a Kentucky state prison in
Burgin, Kentucky. Proceeding without a lawyer, Powell has filed a civil rights complaint [R. 1],
as well as a motion for leave to proceed in forma pauperis [R. 3] and a motion asking the Court to
appoint him an attorney [R. 5]. While the Court will permit Powell to proceed in forma pauperis,
it will deny his request for a lawyer and dismiss his complaint.
In Powell’s short complaint, he alleges that he has had a history of medical problems with
his ankle and, therefore, has worn “special jungle boots” for support. [R. 1 at 2]. Powell indicates
that other correctional institutions have provided him with the special boots, but that the defendants
have not given him the boots at Northpoint. [R. 1 at 2-3]. Instead, Powell generically claims the
defendants “took them away” and removed information about the boots from his medical records.
[R. 1 at 3].
Powell completed and filed an inmate grievance form with the prison. [R. 1-1 at 1-2].
Defendant Stephanie Thompson, a registered nurse, responded by telling Powell, “When you were
seen by the provider, she did not feel you were in need of special boots. You were issued ankle

sleeves during that visit. You now state that the ankle sleeves are no help. I will schedule you to
see Dr. Clifford for evaluation.” [R. 1-1 at 2]. Powell does not dispute the nurse’s characterization
of events; in fact, although Powell appealed the nurse’s response to the prison’s healthcare
grievance committee, he acknowledged that “the medical provider had stated that I did not need
[the special boots] anymore and that I would be issued ankle sleeves.” [R. 1-1 at 3]. Powell,
however, took exception to that decision, describing it as “one medical provider overrul[ing] the
other” while lacking information. [Id.]. The healthcare grievance committee responded by telling
Powell, “You have been seen by Dr. Clifford; she will determine your need for boots based on her
clinical findings.” [R. 1-1 at 4]. Still unsatisfied, Powell sought further administrative review.
However, in August 2017, the prison’s medical director concurred with the healthcare grievance
committee. [R. 1-1 at 7].
Powell then filed a civil rights complaint with this Court. Powell first claims that the
defendants were negligent. [R. 1 at 2-3]. Powell also claims that the defendants inflicted cruel
and unusual punishment on him in violation of the Eighth Amendment to the Constitution “by not
giving [him] the proper treatment that he is entitled to.” [R. 1 at 3-4]. That said, Powell
characterizes the defendants’ actions as “nothing but mere negligence.” [R. 1 at 4]. Powell is
seeking an unspecified amount of compensatory and punitive damages. [R. 1 at 4].
As an initial matter, the Court will grant Powell’s motion for leave to proceed in forma
pauperis [R. 3] pursuant to 28 U.S.C. § 1915. The Court will waive the $50.00 administrative fee
in this case and will allow Powell to pay the $350.00 filing fee in installments as set forth below.
That said, the Court will deny Powell’s motion to appoint counsel. [R. 5]. That is because, despite
Powell’s suggestions to the contrary, he does not have a constitutional right to a lawyer in this civil

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case, and this matter does not present the kind of exceptional circumstances that would otherwise
justify the appointment of counsel. See Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir. 2003).
The Court has conducted an initial review of Powell’s complaint. See 28 U.S.C. § 1915A.
With respect to Powell’s Eighth Amendment claims, he fails to state a claim upon which relief
may be granted. After all, to make out such a claim, Powell would have to show that the defendants
acted with deliberate indifference to his serious medical needs. See Blackmore v. Kalamazoo
County, 390 F.3d 890, 895 (6th Cir. 2004) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)).
Here, even if the Court assumes that Powell’s medical needs are serious, there is no indication that
any of the defendants acted with deliberate indifference to those needs. Rather, Powell’s allegations
simply relate to a judgment call about whether he would benefit more from boots or ankle
sleeves—a decision that medical officials at the prison are still apparently in the process of making.
And while Powell briefly claims that the defendants removed information about boots from his
medical records, his submissions demonstrate that he is still receiving medical attention for his
ankle. Thus, it is clear that Powell is only taking issue with the adequacy of the treatment he is
receiving. That is simply not enough to make out an Eighth Amendment claim of cruel and unusual
punishment. See Graham ex rel. Estate of Graham v. County of Washtenaw, 358 F.3d 377, 385
(6th Cir. 2004); Wright v. Sapp, 59 F. App’x 799, 801 (6th Cir. 2003); Simpson v. Ameji, 57 F.
App’x 238, 239 (6th Cir. 2003). Thus, the Court will dismiss those claims.
Finally, while Powell has not stated viable claims under the Eighth Amendment, the Court
reaches no conclusion as to his negligence claims, which appear to be medical malpractice claims.
Instead, the Court simply declines to exercise supplemental jurisdiction over these claims. This is
because the Court concludes that the balance of judicial economy, convenience, fairness, and
comity all point toward declining jurisdiction over those state law claims. See 28 U.S.C. §

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1367(c)(3); Carnegie-Mellon University v. Cohill, 484 U.S. 343 (1988); Musson Theatrical, Inc.
v. Federal Exp. Corp., 89 F.3d 1244, 1255 (6th Cir. 1996) (noting that “[a]fter a 12(b)(6) dismissal,
there is a strong presumption in favor of dismissing supplemental claims”).
Accordingly, it is hereby ORDERED as follows:
1. Powell’s motion for leave to proceed in forma pauperis [R. 3] is GRANTED.
2. The $50.00 administrative fee in this case is WAIVED. That said, 28 U.S.C. § 1915
requires that Powell pay the $350.00 filing fee as set forth below.
3. Within 28 days from the entry of this order, Powell MUST PAY $6.23 to the Clerk of
the Court as an initial partial filing fee. 28 U.S.C. § 1915(b)(1)(A).
4. The Clerk of the Court shall open an account in Powell’s name for receipt of the filing
fee. The Clerk shall complete a Notice of Payment Form (E.D. Ky. Form 525) with (a)
Powell’s name, (b) his inmate registration number, and (c) this case number. The Clerk
shall then send a copy of this Order and the Notice of Payment Form to the
Jailer/Warden of the institution in which Powell is currently confined, as well as the
Office of the General Counsel for the Department of Corrections in Frankfort,
Kentucky.
5. Each month, Powell’s custodian shall send the Clerk of the Court a payment in an
amount equal to 20% of Powell’s income for the preceding month out of his inmate
trust fund account, but only if the amount in the account exceeds $10.00. The custodian
shall then continue such monthly payments until the entire $350.00 filing fee is paid.
6. Powell’s motion to appoint counsel [R. 5] is DENIED.
7. Powell’s Eighth Amendment claims are DISMISSED, with prejudice.
8. Powell’s state law negligence claims are DISMISSED, without prejudice.

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9. This action is DISMISSED and STRICKEN from the Court’s docket.
10. A corresponding judgment will be entered this date.
Dated October 17, 2017.

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