Satterwhite v. Jennings et al

Filing 5

MEMORANDUM AND ORDER: The motion to proceed in forma pauperis is GRANTED IN PART and DENIED IN PART (Court File No. 3). Plaintiff is a prisoner in custody at CCA-Silverdale, so he is ASSESSED the full civil filing fee of $350 .00. Plaintiff SHALL label Amended Complaint. Plaintiffs failure to amend his complaint within twenty (20) days from the date of this Memorandum and Order will result in the complaint being dismissed for failure to state a claim and for failure to pr osecute and follow the orders of this Court. Signed by District Judge Curtis L Collier on 5/5/2014. (BJL, )Mailed to George Satterwhite, along with a copy of the original complaint and a blank 1983 Complaint. Memorandum and Order also mailed to the Warden and Custodian of Records at CCA-Silverdale, in Chattanooga, TN, the Commissioner of the Tennessee Department of Corrections, the State Attorney General, and emailed to the Court's Financial Deputy. Modified on 3/5/2014 (BJL, ).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
at CHATTANOOGA
GEORGE SATTERWHITE,

)
)
Plaintiff,
)
)
v.
)
)
WARDEN PAUL L. JENNINGS; REGIONAL )
MANAGER OF CCA NURSES, MICHELLE )
TIPTON; AND CCA-SILVERDALE
)
PSYCHOLOGIST DR. BUSHAWN;
)
)
Defendants.
)

No. 1:12-cv-313
Judge Curtis L. Collier

MEMORANDUM and ORDER
George Satterwhite (“Plaintiff”), a pro se prisoner, has filed this civil rights complaint
pursuant to 42 U.S.C. § 1983 (Court File No. 1). Pursuant to the Court’s Deficiency Order, Plaintiff
filed a motion to proceed in forma pauperis (Court File No. 3).
The Court discerns Plaintiff alleges Dr. Bushawn put him on the generic form of the
medications he was taking prior to being incarcerated, and the generic medications have “messed
up” his nervous system (Court File No. 1). Plaintiff has failed to identify the capacity in which he
sues Defendants. As it stands now, it appears he has only sued each of them in their official
capacity, and there are no allegations demonstrating any official liability on the part of any of the
named defendants.

Nevertheless, as discussed in more detail below in section III, because these shortcomings
may be remedied by amendment, Plaintiff will be permitted to amend his complaint as to his claims
against Defendants. See LaFountain v. Harry, 716 F.3d 944 (6th Cir. 2013) (a district court may
allow a prisoner to amend a complaint to avoid sua sponte dismissal under the PLRA).
I.

APPLICATION TO PROCEED IN FORMA PAUPERIS
It appears from the application to proceed in forma pauperis submitted by Plaintiff, that he

lacks sufficient financial resources at the present time to pay the required filing fee of $350.00.
Accordingly, his motion to proceed in forma pauperis is GRANTED IN PART and DENIED IN
PART (Court File No. 3). Plaintiff’s motion is GRANTED to the extent he does not have to
initially pay the full $350.00 filing fee but DENIED to the extent that he is not relieved of the
ultimate responsibility of paying the full $350.00 filing fee. Rather, Plaintiff will pay the full fee
as assessed in installments. Since Plaintiff is a prisoner in custody at CCA-Silverdale, he is
ASSESSED the full civil filing fee of $350.00 under the Prisoner Litigation Reform Act (“PLRA”),
Pub. L. 104-134, 110 Stat. 1321 (1996), codified in 28 U.S.C. § 1915.
Pursuant to 28 U.S.C. § 1915(b)(1)(A) and (B), the custodian of Plaintiff’s inmate trust
account at the institution where he now resides SHALL submit to the Clerk, United States District
Court, 900 Georgia Avenue, Room 309, Chattanooga, Tennessee 37402, as an initial partial
payment, whichever is the greater of
(a)

twenty percent (20%) of the average monthly deposits to Plaintiff’s
inmate trust account; or

(b)

twenty percent (20%) of the average monthly balance in Plaintiff’s
inmate trust account for the six-month period preceding the filing of
the complaint.

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Thereafter, the custodian shall submit twenty percent (20%) of Plaintiff’s preceding monthly
income (or income credited to his trust account for the preceding month), but only when such
monthly income exceeds $10.00, until the full filing fee of $350.00 as authorized under 28 U.S.C.
§ 1914(a) has been paid to the Clerk. 28 U.S.C. § 1915(b)(2).
The Clerk of Court is DIRECTED to send a copy of this Memorandum and Order to the
Warden and Custodian of Records at CCA-Silverdale, in Chattanooga, TN, the Commissioner of the
Tennessee Department of Corrections, the State Attorney General, and the Court’s Financial Deputy
to ensure the custodian of Plaintiff’s inmate trust account complies with the portion of the PLRA
relating to payment of the filing fee.
The agency having custody of Plaintiff SHALL collect the filing fee as funds become
available. This order SHALL become a part of Plaintiff’s file and follow him if he is transferred
to another institution. The agency having custody of Plaintiff SHALL continue to collect monthly
payments from Plaintiff’s prisoner account until the entire filing fee of $350.00 is paid.
Plaintiff is also ORDERED to provide the prison officials at any new institution with a copy
of this order. Failure of Plaintiff to notify the new prison officials of this order and outstanding debt
will result in the imposition of appropriate sanctions against him without any additional notice or
hearing by the Court.
II.

FACTS
Plaintiff submits the following scant allegations pertaining to his claims against Defendants.

When Plaintiff arrived at CCA-Silverdale, he advised Dr. Bushawn of his medical problems and the
medications he was taking prior to being incarcerated. Dr. Bushawn subsequently prescribed and
administered the generic forms of the medication Plaintiff was previously taking. These generic

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forms have “messed up” Plaintiff’s nervous system to the point that he “can’t hold steal [sic] for
more then [sic] 5 seconds.” Plaintiff notified Dr. Bushawn of the side effect. Apparently, at some
time thereafter, the nurse informed Plaintiff there was nothing they could do for him, and Dr.
Bushawn was not going to change his medication. Plaintiff requests the Court to investigate the
situation.
III.

SCREENING
The Court screens the complaint to determine whether it should be dismissed as frivolous,

malicious, or for failure to state a claim. 28 U.S.C. § 1915(e)(2) and § 1915A. When performing
this task, the Court bears in mind that the pleadings of pro se litigants 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) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Nevertheless, the
complaint must be sufficient “to state a claim to relief that is plausible on its face,” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007), which simply means the factual content pled by a
plaintiff must permit a court “to draw the reasonable inference that the defendant is liable for the
misconduct alleged[,]” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and must contain factual
allegations sufficient to “raise a right to relief above the speculative level.” Bell Atlantic Corp. v.
Twombly, 550 U.S. at 555.
At this point, Plaintiff's allegations do not sufficiently state a constitutional violation. As
previously noted, in addition to failing to specify in what capacity he is suing Defendants, he has
failed to provide sufficient factual support for his claim to indicate any liability on the part of any
of these named defendants in their official capacity. In addition, Plaintiff has failed to make any
claim at all against the Warden. Furthermore, Plaintiff does not make a claim specifically against

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Michelle Tipton. Although Plaintiff references a nurse in his allegations, it appears to be a nurse
at CCA rather than Michelle Tipton who is apparently the Regional Manager of CCA nurses in
Nashville. Nevertheless, the deficiencies and confusing allegations in Plaintiff’s complaint may be
able to be cured. Therefore, the Court will permit Plaintiff to file an amended complaint. See
LaFountain v. Harry, 716 F.3d at 951. The Court cautions Plaintiff, that his complain must contain
factual allegations sufficient to “raise a right to relief above the speculative level.” Bell Atlantic
Corp. v. Twombly, 550 U.S. at 555.
In sum, as it stands now, Plaintiff has sued the Defendants only in their official capacities
since he failed to identify the capacity in which he is suing each Defendant. In addition, he has
failed to state a claim against any of the defendants in their official capacity. Furthermore, Plaintiff
has failed to assert any claim against Warden Jennings or Regional Manager of CCA Nurses,
Michelle Tipton. Moreover, Plaintiff has failed to allege sufficient facts to support his medical claim
beyond more than speculation that a constitutional violation may have occurred. For example,
Plaintiff fails to explain the details of any new side effects he is experiencing as a result of his
medication change and when they occurred. Specifically, he fails to explain the specific symptoms
he is experiencing. In addition, he does not identify the date on which this medication change
occurred, when the side effects began, or explain the circumstances and discussion that occurred
between him and the Defendants about this issue. In other words, Plaintiff has not sufficiently
alleged a serious medical problem or supplied facts that he is being denied medical attention for a
serious medical problem. Because these are potentially curable deficiencies, however, Plaintiff will
be given an opportunity to amend his complaint to cure these deficiencies. See LaFountain v. Harry,
716 F.3d at 951.

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Accordingly, the Clerk will be DIRECTED to send Plaintiff a § 1983 form complaint which
Plaintiff SHALL label “Amended Complaint.” Plaintiff’s failure to amend his complaint within
twenty (20) days from the date of this Memorandum and Order will result in the complaint being
dismissed for failure to state a claim and for failure to prosecute and follow the orders of this Court.
Accordingly, it is hereby ORDERED that:
Plaintiff’s motion to proceed in forma pauperis is GRANTED IN PART AND DENIED
IN PART (Court File No. 3). The Custodian of Plaintiff’s inmate trust account at CCA-Silverdale
SHALL submit, as an initial partial payment, 20% of the average monthly deposits to Plaintiff’s
trust account or 20% of the average monthly balance in Plaintiff's trust account for the six-month
period preceding the filing of the complaint. Thereafter, the Custodian SHALL collect from
Plaintiff’s prison trust account the $350 filing fee owed in this case by collecting monthly payments
from the account in an amount equal to twenty percent (20%) of the preceding months income and
forward payments to the Clerk of Court each time the amount in the account exceeds $10 in
accordance with 28 U.S.C. § 1915(b)(2).
The Clerk is DIRECTED to send a copy of this Memorandum and Order to the Warden and
Custodian of Records at CCA-Silverdale, the Commissioner of the Tennessee Department of
Corrections, the State Attorney General, and the Court’s Financial Deputy to ensure the custodian
of Plaintiff’s inmate trust account complies with the portion of the PLRA relating to payment of the
filing fee.
The Clerk SHALL mail Plaintiff a copy of this Memorandum and Order, a copy of his
original complaint, and a blank § 1983 complaint. Plaintiff SHALL entitle the blank § 1983
complaint AMENDED COMPLAINT and complete the complaint in its entirely and cure all the

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deficiencies of his original complaint. Plaintiff is GRANTED twenty (20) days from the date of
this Order in which to file a First Amended Complaint that SHALL cure all the deficiencies of
pleading noted above. Plaintiff’s Amended Complaint MUST be complete in itself without
reference to his original complaint as the original complaint will be superseded by the Amended
Complaint.
In other words, Plaintiff’s Amended Complaint will replace his original complaint.
Therefore, defendants not named and all claims not realleged in the Amended Complaint will be
deemed to have been waived. Further, if Plaintiff’s Amended Complaint fails to state a claim upon
which relief may be granted, it may be dismissed without further leave to amend and may be counted
as a “strike” under 28 U.S.C. § 1915(g). To be perfectly clear, Plaintiff is warned that if his
Amended Complaint fails to address the deficiencies noted above, it may be dismissed with
prejudice and without further leave to amend. The Court cautions Plaintiff, if he chooses to amend
his complaint he must do so within twenty (20) days from the date of this Memorandum and Order
or his complaint will be dismissed for failure to state a claim upon which relief may be granted and
for failure to prosecute and follow the orders of this Court.
Finally, Plaintiff is ORDERED to inform the Court, and Defendants or Defendants’ counsel
of record, immediately of any address change. Failure to provide a correct address to this Court
within fourteen (14) days following any change of address will result in the dismissal of this action.
ENTER:
/s/
CURTIS L. COLLIER
UNITED STATES DISTRICT JUDGE

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