Cook v. Southern Health Partners et al

Filing 15

MEMORANDUM AND ORDER: granting 1 MOTION for Leave to Proceed in forma pauperis filed by George M Cook. It appears from the financial data plaintiff has supplied that he is indigent and cannot afford to pay the $350.00 filing fee. Accordingly, his application is GRANTED. Accordingly, defendants Sheriff Chris Mathis and Jail Administrator Tom Smith are DISMISSED from this lawsuit for plaintiffs failure to state a claim against them. The Clerk is DIRECTED to send the plaintiff two service packets (which contain a blank summons and USM 285 form) for each remaining defendant. See Order for details. (C/M) Signed by District Judge J Ronnie Greer on 12/8/2014. (LMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE
GEORGE M. COOK,
Plaintiff,
v.
SOUTHERN HEALTH PARTNERS;
FRANCHESCA SHOUN, Nurse
Practitioner; CHRIS MATHES, Sheriff;
TOM SMITH, Jail Adm’r,
Defendants.

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No.: 2:13-cv-30-JRG-DHI

MEMORANDUM AND ORDER

The Court is in receipt of a pro se civil rights complaint under 42 U.S.C. § 1983 filed by
a now former prisoner in the Carter County Detention Center, (Doc. 1). Plaintiff has also
submitted an application to proceed in forma pauperis (Doc. 1).

It appears from the financial

data plaintiff has supplied that he is indigent and cannot afford to pay the $350.00 filing fee.
Accordingly, his application is GRANTED.
In order to state a claim under 42 U.S.C. § 1983, a plaintiff must establish that he was
deprived of a federal right by a person acting under color of state law. Black v. Barberton
Citizens Hospital, 134 F.3d 1265, 1267 (6th Cir. 1998); O'Brien v. City of Grand Rapids, 23 F.3d
990, 995 (6th Cir. 1994); Russo v. City of Cincinnati, 953 F.2d 1036, 1042 (6th Cir. 1992). See
also Braley v. City of Pontiac, 906 F.2d 220, 223 (6th Cir. 1990) ("Section 1983 does not itself
create any constitutional rights; it creates a right of action for the vindication of constitutional
guarantees found elsewhere.").

Under the Prison Litigation Reform Act (PLRA), district courts must screen prisoner
complaints and sua sponte dismiss those that are frivolous or malicious, fail to state a claim for
relief, or are against a defendant who is immune. See, e.g., Benson v. O'Brian, 179 F.3d 1014
(6th Cir. 1999).
Responding to a perceived deluge of frivolous lawsuits, and, in
particular, frivolous prisoner suits, Congress directed the federal
courts to review or "screen" certain complaints sua sponte and to
dismiss those that failed to state a claim upon which relief could be
granted, that sought monetary relief from a defendant immune
from such relief, or that were frivolous or malicious.

Id. at 1015-16 (6th Cir. 1999) (citing 28 U.S.C. §§ 1915(e)(2) and 1915A).
Plaintiff alleges, in his complaint, that defendants Sheriff Chris Mathis and Captain Tom
Smith have been neglectful, have practiced discrimination, have committed mental and physical
abuse, have caused mental and physical suffering, and have handed out cruel and unusual
punishment.

The Court infers from other allegations that the above-described conduct is

manifested by these two defendants’ failure to render to plaintiff what he believes is due him,
that is, the best mental and physical care that is available at all times while he is incarcerated and
to which he is entitled as a United States citizen. Plaintiff claims that he suffers from Hepatitis
C, kidney stones, a lower rupture, an enlarged prostate, polyps, hemorrhoids, acute seizures,
severe depression, and severe anxiety, which results in panic attacks and extreme mood
fluctuations. He further claims that he is not receiving any treatment for any of his diseases.
No specific allegations of wrongdoing have been made against Defendant Sheriff Chris
Mathis or Defendant Jail Administrator Tom Smith; all the allegations against them are general
and conclusory. Conclusory allegations such as these do not state a claim. See Harden-Bey v.
Rutter, 524 F.3d 789, 796 (6th Cir. 2008) (“[I]n the context of a civil rights claim, . . . conclusory
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allegations of unconstitutional conduct without specific factual allegations fail to state a claim.”)
(citing Lillard v. Shelby County Bd. of Educ.,76 F.3d 716, 726 (6th Cir. 1987)); Cline v. Rogers,
87 F.3d 176, 184 (6th Cir.1996) (instructing courts not to suppose a plaintiff would be able to
show facts not alleged or that a defendant has violated the law in ways not alleged). Plaintiff has
not “stated simply, concisely, and directly events that, [he] alleged, entitled [him] to damages
from the [defendants],” as he is required to do to make out a plausible constitutional claim.
Johnson v. City of Shelby, Miss., 135 S. Ct. 346, 347 (2014) (per curiam).
But perhaps, plaintiff has named these officials as defendants under the theory that they
bear overall responsibility for delivery of medical care to inmates at the Carter County Detention
Center and for properly managing or supervising the facility’s staff. However, §1983 liability
must be based on more than respondeat superior, or a defendant’s right to control employees.
Taylor v. Michigan Dep't of Corrections, 69 F.3d 76, 80-81 (6th Cir. 1995).
Though respondeat superior does not provide a valid basis of liability, Polk County v.
Dodson, 454 U.S. 312, 325 (1981); Monell v. Department of Social Services, 436 U.S. 658, 691
(1978); Rizzo v. Goode, 423 U.S. 362 (1976), plaintiff can still hold these defendants liable so
long as he can demonstrate that they implicitly authorized, approved, or knowingly acquiesced in
the alleged wrongdoing of any of their subordinates. Leach v. Shelby County Sheriff, 891 F.2d
1241, 1244 (6th Cir. 1989). But they cannot be held liable for a mere failure to act. Greene v.
Barber, 310 F.3d 889, 899 (6th Cir. 2002) ("Supervisory liability under § 1983 does not attach
when it is premised on a mere failure to act; it 'must be based on active unconstitutional
behavior.'") (quoting Bass v. Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999)).
Also, the failure of a prison official to review favorably a grievance provides no basis for
section 1983 liability. See Ramsey v. Martin, 28 F.App’x 500, *502, 2002 WL 169559, *1 (6th

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Cir. Jan. 31, 2002); see also Burks v Raemisch, 555 F3d. 592, 596 (7th Cir. 2005) ( “[Plaintiff’s]
view that everyone who knows about a prisoner's problem must pay damages implies that he
could write letters to the Governor . . . and 999 other public officials, demand that every one of
those 1,000 officials drop everything he or she is doing in order to investigate a single prisoner's
claims, and then collect damages from all 1,000 recipients if the letter-writing campaign does not
lead to better medical care. That can't be right.”).
As plaintiff does not allege that these defendants knew of any of the complained of lack
of medical treatment, there is nothing from which to conclude that these defendants condoned
any subordinate’s failure to act on any risks to plaintiff’s health or well-being caused by the
purported medical mistreatment. See e.g., Estate of Rosenberg v. Crandell, 56 F.3d 35, 37 (8th
Cir.1995) (“The general responsibility of a warden for supervising the operation of a prison is
not sufficient to establish personal liability.”).
Accordingly, defendants Sheriff Chris Mathis and Jail Administrator Tom Smith are
DISMISSED from this lawsuit for plaintiff’s failure to state a claim against them.
A prison authority’s deliberate indifference to an inmate’s serious medical needs violates
the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97 (1976). Prison doctors and officials are
deliberately indifferent to a prisoner's serious medical needs respectively, “in their response to a
prisoner’s needs” or by “interfer[ing] with treatment once prescribed.” Estelle, 429 U.S. at 10405. Also, “a prisoner who suffers pain needlessly when relief is readily available has a cause of
action against those whose deliberate indifference is the cause of his suffering.” See Berryman v.
Rieger, 150 F.3d 561, 566 (6th Cir. 1998) (citing Boretti v. Wiscomb, 930 F.2d 1150, 1154-55
(6th Cir.1991)); see also Estelle, 429 U.S. at 103 (“[T]he denial of medical care may result in
pain and suffering which no one suggests would serve any penological purpose.”).

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However, where a prisoner receives some medical care and the dispute is over its
adequacy, no claim has been stated. Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976).
By the same token, a difference of opinion between medical care providers as to appropriate
treatment for an inmate’s ailment does not present a constitutional controversy. Estelle, 429 U.S.
at 105-06; see also Keeper v. King, 130 F.3d 1309, 1314 (8th Cir.1997) (finding that a
disagreement between prison physician and physician who originally prescribed medications is
not of constitutional magnitude).
It may well be the case that plaintiff’s medical claim is that he was not furnished with the
particular medications in the dosage amounts that he desired. If that is plaintiff’s true allegation,
then he has no constitutional claim. While plaintiff may prefer to receive certain medications, the
Eighth Amendment does not entitle an inmate “to demand specific care. [An inmate] is not
entitled to the best care possible.” Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997); see also
Fisc. v. Shappell, 468 F.2d 1072, 1076 (6th Cir. 1972) (The Eighth Amendment does not require
every request for medical care made by prisoner to be honored or the courts “to engage in a
process of second-guessing in every case the adequacy of medical care that the state provides.”).
As long as the treatment actually afforded an inmate squares with constitutional standards, he has
no right to demand a particular treatment. Estelle, 429 U.S. at 106-07; McCracken v. Jones, 562
F.2d 22 (10th Cir. 1977).
But, it is equally plausible that plaintiff is contending that he was not provided with any
medication or treatment whatsoever to address the many medical conditions from which he
purports to suffer. Accordingly, the claim may proceed, though it may be shown, as this claim
progresses, that what seems plausible actually is not what happened.

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The Clerk is DIRECTED to send the plaintiff two service packets (which contain a blank
summons and USM 285 form) for each remaining defendant.

Plaintiff is ORDERED to

complete the service packets and return them to the Clerk's Office within twenty (20) days of the
date of receipt of this Memorandum and Order. At that time, the summonses will be signed and
sealed by the Clerk and forwarded to the U.S. Marshal for service. Fed. R. Civ. P. 4. Plaintiff is
forewarned that failure to return the completed service packets within the time required could
jeopardize his prosecution of this action.
Defendants shall answer or otherwise respond to the complaint within twenty-one (21)
days from the date of service. Defendants' failure to timely respond to the complaint may result
in entry of judgment by default against Defendants.
Plaintiff is ORDERED to inform the Court, in writing, and the defendants or their
counsel of record immediately of any address changes. Failure to provide a correct address to
this Court within ten (10) days following any change of address may result in the dismissal of
this action.
ENTER:

s/J. RONNIE GREER
UNITED STATES DISTRICT JUDGE

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