Moss v. Minor et al

Filing 3

MEMORANDUM and ORDER directing the Clerk to file this action without the prepayment of costs or fees as of the date the complaint was received. However, process shall not issue, and this action is dismissed sua sponte, as frivolous and for failure to state a claim upon which relief can be granted under § 1983. In addition to the above, this court CERTIFIES that any appeal from this action would not be taken in good faith and would be totally frivolous. Plaintiff is assesse d the civil filing fee of $350. The Clerk is DIRECTED to send a copy of this Memorandum and Order to the Sheriff of Union County, Tennessee, and the county attorney for Union County, Tennessee, to ensure that the custodian of the plaintiff' s inmate trust account complies with that portion of the Prison Litigation Reform Act relating to payment of the filing fee. The Clerk is further DIRECTED to forward a copy of this Memorandum and Order to the court's financial deputy. Signed by District Judge Thomas W Phillips on December 14, 2011. (mailed to Mr. Moss) (AYB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE

JOSHUWA M. MOSS,
Plaintiff,
v.

3:11-cv-425

RODNEY MINOR, et al.,
Defendants.

MEMORANDUM AND ORDER

The court is in receipt of a pro se prisoner's civil rights complaint under 42 U.S.C. §
1983 and an application to proceed in forma pauperis. It appears from the application that
the plaintiff lacks sufficient financial resources to pay the $350.00 filing fee. Accordingly,
pursuant to 28 U.S.C. § 1915(b)(4), the Clerk is DIRECTED to file this action without the
prepayment of costs or fees or security therefor as of the date the complaint was received.
However, for the reasons stated below, process shall not issue and this action is
DISMISSED.
Plaintiff is an inmate in the Union County Jail. The defendants are Union County
Sheriff Earl Loy, Jr., Jail Administrator Rodney Minor, and numerous correctional officers.
The primary basis for plaintiff's complaint is an alleged denial of medical treatment.

Plaintiff alleges that after first complaining about his stomach hurting, it was a week
before he was taken to the hospital where it was determined he had a gall bladder infection
and his gall bladder was removed. Plaintiff also alleges that, upon his release from the
hospital, defendant Correctional Officer Mike Hale told the doctor that plaintiff could not
have a pain pill. Plaintiff further alleges that defendant Correctional Officer Jermey
Meltabarger did not take him back to the doctor to get his staples out on the day of his
appointment and he waited a month before the staples were removed. As his claim for relief,
plaintiff states that he wants to sue the Union County Jail for medical malpractice.
Plaintiff makes no specific allegations against defendants Loy and Minor, and
apparently seeks to hold them liable based upon their supervisory positions. In a suit brought
under § 1983, however, liability cannot be imposed solely on the basis of respondeat
superior. Polk County v. Dodson, 454 U.S. 312, 325 (1981); Bellamy v. Bradley, 729 F.2d
416, 421 (6th Cir. 1984). The law is well-settled that a plaintiff must allege that a defendant
official was personally involved in the unconstitutional activity of a subordinate in order to
state a claim against such a defendant. Dunn v. State of Tennessee, 697 F.2d 121, 128 (6th
Cir. 1982). "[L]iability cannot be based solely on the right to control employees." Leach v.
Shelby County Sheriff, 891 F.2d 1241, 1246 (6th Cir. 1989).
With respect to plaintiff's claims against defendants Hale and Meltabarger, in order
to state a claim under § 1983 in the medical context, "a prisoner must allege acts or omissions
sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle
v. Gamble, 429 U.S. 97, 106 (1976). The test for whether a jail official has demonstrated
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"deliberate indifference" to medical needs is a subjective inquiry into the official's state of
mind rather than an objective test. Negligence, even gross negligence, will not support a §
1983 claim for denial of medical care. See Farmer v. Brennan, 511 U.S. 825, 837 (1994);
Gibson v. Foltz, 963 F.2d 851, 853 (6th Cir. 1992). "Deliberate indifference to serious
medical needs" is distinguishable from an inadvertent failure to provide adequate medical
care.
Thus, a complaint that a physician has been negligent in diagnosing or treating
a medical condition does not state a valid claim of medical mistreatment under
the Eighth Amendment. Medical malpractice does not become a constitutional
violation merely because the victim is a prisoner.
Estelle, 429 U.S. at 106. See also Gibson v. Matthews, 926 F.2d 532, 536-37 (6th Cir. 1991)
(negligence of medical personnel does not state a claim under § 1983 for deliberate
indifference to medical needs); Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976)
("Where a prisoner has received some medical attention and the dispute is over the adequacy
of the treatment, federal courts are generally reluctant to second guess medical judgments
and to constitutionalize claims which sound in state tort law."). Under the circumstances, the
court finds that plaintiff's allegations against defendants Hale and Meltabarger fail to satisfy
the Estelle standard.
Plaintiff has also named as defendants numerous additional correctional officers at the
Union County Jail, and makes the conclusory allegation that the jail's correctional officers
do not do their job correctly. Plaintiff does not, however, make specific allegations against
any particular officer. Conclusory allegations, without more, fail to state a claim for which

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relief can be granted under 42 U.S.C. § 1983. Chapman v. City of Detroit, 808 F.2d 459, 465
(6th Cir. 1986); Smith v. Rose, 760 F.2d 102 (6th Cir. 1985).
Finally, the court notes that plaintiff did not state in his complaint whether the
defendants are sued in their official capacity or individual capacity. Accordingly, the court
must presume that the defendants have been sued in their official capacity only. Wells v.
Brown, 891 F.2d 591 (6th Cir. 1989). Because the defendants have been sued only in their
official capacity as officers of Union County, Tennessee, the court must proceed as if
plaintiff has in fact sued Union County, Tennessee. Kentucky v. Graham, 473 U.S. 159, 165
(1985); Brandon v. Holt, 469 U.S. 464, 471 (1985); Monell v. Department of Social Services
of City of New York, 463 U.S. 658, 690 n.55 (1978). Given that, in order to prevail plaintiff
must demonstrate that the violation of his constitutional rights resulted from acts representing
official policy or custom adopted by Union County, Tennessee. Monell, 463 U.S. at 690-91;
Leach v. Shelby County Sheriff, 891 F.2d 1241, 1245-46 (6th Cir. 1989). Plaintiff did not
claim, nor does the record suggest, that the alleged violation of his rights was the result of
any policy or custom on the part of the county. The complaint therefore fails to state a claim
upon which relief may be granted in that regard.
Although this court is mindful that a pro se complaint is to be liberally construed,
Haines v. Kerner, 404 U.S. 519, 520-21 (1972), it is quite clear that the plaintiff has not
alleged the deprivation of any constitutionally protected right, privilege or immunity, and,
therefore, the court finds his claims to be frivolous under 28 U.S.C. §§ 1915(e) and 1915A.
It appears beyond doubt that plaintiff can prove no set of facts which would entitle him to
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relief, Malone v. Colyer, 710 F.2d 258 (6th Cir. 1983), and that plaintiff's claim lacks an
arguable basis in law and fact, Neitzke v. Williams, 490 U.S. 319, 325 (1989). Therefore, this
action is DISMISSED sua sponte, as frivolous and for failure to state a claim upon which
relief can be granted under § 1983. In addition to the above, this court CERTIFIES that any
appeal from this action would not be taken in good faith and would be totally frivolous. See
Rule 24 of the Federal Rules of Appellate Procedure.
Because the plaintiff is an inmate in the Union County Jail, he is herewith
ASSESSED the civil filing fee of $350.00. Pursuant to 28 U.S.C. § 1915(b)(1)(A) and (B),
the custodian of the plaintiff's inmate trust account at the institution where he now resides
is directed to submit to the Clerk, U.S. District Court, 800 Market Street, Suite 130,
Knoxville, Tennessee 37902, as an initial partial payment, whichever is greater of:
(a)

twenty percent (20%) of the average monthly deposits to the plaintiff's inmate

trust account; or
(b)

twenty percent (20%) of the average monthly balance in the plaintiff's inmate

trust account for the six-month period preceding the filing of the complaint.
Thereafter, the custodian shall submit twenty percent (20%) of the plaintiff's
preceding monthly income (or income credited to the plaintiff's trust account for the
preceding month), but only when such monthly income exceeds ten dollars ($10.00), until
the full filing fee of three hundred fifty dollars ($350.00) as authorized under 28 U.S.C. §
1914(a) has been paid to the Clerk. 28 U.S.C. § 1915(b)(2).

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The Clerk is DIRECTED to send a copy of this Memorandum and Order to the
Sheriff of Union County, Tennessee, and the county attorney for Union County, Tennessee,
to ensure that the custodian of the plaintiff's inmate trust account complies with that portion
of the Prison Litigation Reform Act relating to payment of the filing fee. The Clerk is further
DIRECTED to forward a copy of this Memorandum and Order to the court's financial
deputy.

ENTER:
s/ Thomas W. Phillips
United States District Judge

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