Holland v. Bivens et al (TVV)

Filing 23

MEMORANDUM AND OPINION as set forth in following order. Signed by Chief District Judge Thomas A Varlan on 3/13/14. (c/m)(ABF)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
MICHAEL HOLLAND,
Plaintiff,
v.
RODNEY BIVENS,
OFFICER McANDREWS,
TAMMIE STRUNK,
JANE DOE, and
DAN WALKER,
Defendants.

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No.: 3:13-cv-235-TAV-CCS

MEMORANDUM
This is a pro se prisoner’s civil rights action pursuant to 42 U.S.C. § 1983. The matter
is before the Court on the motion to dismiss filed by defendant Walker, the motion to dismiss
filed by defendants Bivens and Strunk, plaintiff’s motion to subpoena medical records, and
plaintiff’s motions to amend the complaint to add additional defendants. For the following
reasons, the motion to dismiss filed by defendant Walker [Doc. 12] will be GRANTED IN
PART and DENIED IN PART and the motion to dismiss filed by defendants Bivens and
Strunk [Doc. 21] will be GRANTED IN PART and DENIED IN PART; the motions to
dismiss will be GRANTED to the extent the defendants have been sued in their official
capacities and will be DENIED to the extent the defendants have been sued in their
individual capacities. Plaintiff’s motions to amend [Docs. 5 and 11] and his motion to

subpoena medical records [Doc. 6] will be DENIED WITHOUT PREJUDICE. In
addition, defendants McAndrews and Doe will be DISMISSED WITHOUT PREJUDICE.
I.

Standard of Review
A motion to dismiss tests whether a claim has been adequately stated in the complaint.

In considering a motion to dismiss, all well-pleaded allegations in the complaint must be
regarded as true and all factual allegations must be construed in favor of the plaintiff.
Scheuer v. Rhodes, 416 U.S. 232, 236-37 (1974); Collins v. Nagle, 892 F.2d 489, 493 (6th
Cir. 1989). Nevertheless, “though a complaint must be construed in the light most favorable
to the plaintiff when the defendant files a motion to dismiss, the complaint must still contain
‘enough facts to state a claim to relief that is plausible on its face.’” Brown v. Matauszak,
415 F. App’x 608, 612 (6th Cir. 2011) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)).
To survive a motion to dismiss, the complaint must allege grounds
entitling plaintiff to relief, which requires “more than labels and conclusions
[or] a formulaic recitation of the elements of a cause of action.” The “[f]actual
allegations must be enough to raise a right to relief above the speculative
level.”
Casden v. Burns, 306 F. App’x 966, 973 (6th Cir. 2009) (quoting Twombly, 550 U.S. at 555)
(footnote omitted). The Twombly standard applies to all civil actions filed in the U.S. district
courts. Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1953 (2009).
II.

Factual and Procedural Background
Plaintiff brought this action while he was in the custody of the Tennessee Department

of Correction; he has since been released. Plaintiff’s complaint concerns an alleged denial
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of medical treatment, during his confinements in the Knox County Detention Center (KCDC)
and the Morgan County Correctional Complex (MCCX), for a tooth infection which spread
to his left eye and resulted in loss of vision in that eye. The defendants are KCDC
Administrator Rodney Bivens, Head Nurse Tammie Strunk, Officer McAndrews, Jane Doe,
and MCCX Medical Services Director Dan Walker.1
The Court allowed service of process to issue as to defendants Walker, Bivens,
Strunk, and McAndrews; the Court ordered that process would not issue against the “Jane
Doe” defendant until plaintiff provided the Clerk’s Office with the correct name and address
of that individual. Process was returned executed as to defendants Walker, Bivens, and
Strunk, and unexecuted as to defendant McAndrews. Plaintiff has yet to identify the “Jane
Doe” defendant. Defendants Walker, Bivens, and Strunk move to dismiss the complaint
against them for failure to state a claim upon which relief can be granted.
III.

Discussion
A.

The Motions to Dismiss

In order to state a claim under 42 U.S.C. § 1983, 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

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The Court sua sponte dismissed defendants Tenova Medical Corporation, the State of
Tennessee, the Morgan County Correctional Complex, and the Knox County Detention Center.
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does not itself create any constitutional rights; it creates a right of action for the vindication
of constitutional guarantees found elsewhere.”).
As noted, plaintiff alleges he was denied medical care for an infection in his tooth
which spread to his left eye. The Eighth Amendment’s ban against cruel and unusual
punishment obliges correctional authorities to provide medical care for prisoners’ serious
medical needs. 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). Thus, under the Estelle
standard, “[a] constitutional claim for denial of medical care has objective and subjective
components.” Blackmore v. Kalamazoo County, 390 F.3d 890, 895 (6th Cir. 2004).
The objective component requires an inmate to establish that he is suffering from a
sufficiently serious medical need, such that “‘he is incarcerated under conditions posing a
substantial risk of serious harm.’” Brown v. Bargery, 207 F.3d 863, 867 (6th Cir. 2000)
(quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). The subjective component
necessitates an inmate show that a prison official possessed a culpable state of mind. Id. “A
defendant possess[es] a sufficiently culpable state of mind when he acts with deliberate
indifference.” Carter v. City of Detroit, 408 F.3d 305, 312 (6th Cir. 2005) (citation omitted).
“Put simply, ‘deliberate indifference to a substantial risk of serious harm to a prisoner is the
equivalent of recklessly disregarding that risk.’” Johnson v. Karnes, 398 F.3d 868, 875 (6th
Cir.2005) (quoting Farmer v. Brennan, 511 U.S. at 836).

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1.

Motion to Dismiss by Defendants Bivens and Strunk

Plaintiff alleges that while in the KCDC he suffered from an abscessed tooth, that
penicillin was ordered to treat it, but that nurse Jane Doe forgot to order the medication.
According to plaintiff, for three weeks he was told by Nurse Doe, Head Nurse Strunk, and
Administrator Bivens to be patient, during which time the infection spread to his left eye.
Plaintiff further alleges that by the time he got the medication it was too late because his eye
was badly damaged and he has lost part of his vision in that eye. Plaintiff brings this action
against the defendants in both their individual and official capacities.
When defendants are sued in their official capacity as county employees, the Court
must proceed as if plaintiff has in fact sued the county itself, in this case Knox 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 alleged
violation of his constitutional rights resulted from acts representing official policy or custom
adopted by Knox 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 allege, however, that the
violation of his rights was the result of any policy or custom on the part of Knox County and
his complaint thus fails to state a claim for relief against the defendants in their official
capacities. For that reason, the motion to dismiss will be granted to the extent the defendants
have been sued in their official capacity.

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With respect to the claim against them in their individual capacity, defendants Bivens
and Strunk contend that the complaint does not allege any facts to establish that either of
them personally examined or provided any medical care to plaintiff or that either made any
medical decisions with respect to plaintiff. Assuming, however, that plaintiff’s allegations
are true, and construing the factual allegations in favor of the plaintiff, the Court is
constrained to disagree. Read in its entirety, it would appear that plaintiff claims he
complained to the defendants concerning the delay in treating his infection for a period of
three weeks which in turn could demonstrate deliberate indifference on the part of the
defendants to plaintiff’s serious medical need. See Blackmore v. Kalamazoo County, 390
F.3d 890, 900 (6th Cir. 2004) (a prisoner’s medical need must be addressed “within a
reasonable time frame”).
In addition, in support of the motion to dismiss, the defendants rely upon the affidavit
of defendant Tammie Strunk for their contention. The defendants having presented matters
outside the pleadings in support of their motion to dismiss, the motion must be treated as a
motion for summary judgment. Fed. R. Civ. P. 12(d). Given that, “[a]ll parties must be
given a reasonable opportunity to present all the material that is pertinent to the motion.” Id.
For that reason, the plaintiff should be given an opportunity to conduct discovery. Alspaugh
v. McConnell, 643 F.3d 162, 166-68 (6th Cir. 2011). Under the circumstances, the motion
to dismiss by the defendants in their individual capacity will be denied without prejudice
with leave to file a motion for summary judgment.

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2.

Motion to Dismiss by Defendant Walker

Plaintiff alleges that after he filed a grievance about the matter with the KCDC
authorities he was transferred to MCXX, where the eye doctor told him he needed to see a
retina specialist. Plaintiff claims he contacted Medical Services Director Dan Walker about
seeing the specialist weeks prior to filing suit but never received a response. Plaintiff alleges
that his vision gets worse each day he goes without treatment. Plaintiff brings this action
against the defendant in both his individual and official capacities.
A state official may be held personally liable under § 1983 in his individual capacity
for actions taken in his official capacity. Hafer v. Melo, 502 U.S. 21 (1991). However, if
a defendant is sued only in his official capacity for money damages, then that defendant is
entitled to absolute immunity under § 1983. Will v. Michigan Department of State Police,
491 U.S. 58 (1989); Whittington v. Milby, 928 F.2d 188, 193 (6th Cir. 1991). “A suit against
an individual in his official capacity is the equivalent of a suit against the governmental
entity.” Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994). For that reason, the motion
to dismiss will be granted to the extent the defendant has been sued in his official capacity.
With respect to the claim against him in his individual capacity, defendant Walker
contends that the complaint does not allege that he was indifferent to plaintiff’s medical
needs or otherwise personally involved in a violation of plaintiff’s rights. Again, assuming
that plaintiff’s allegations are true, and construing the factual allegations in favor of the
plaintiff, the Court is constrained to disagree. Read in its entirety, it would appear that
plaintiff claims that the defendant, as director of medical services at MCCX, was the person
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responsible to scheduling the appointment with the eye specialist and he failed to do so,
which in turn could demonstrate deliberate indifference to plaintiff’s serious medical need.
Under the circumstances, the motion to dismiss by the defendant in his individual capacity
will be denied without prejudice with leave to file a motion for summary judgment.
B.

The Motion to Amend

Plaintiff filed two motions to amend the complaint to add additional parties, the
second motion essentially a copy of the first. In the motions to amend, plaintiff stated he had
discovered that other people were involved in the alleged mismanagement of the care
provided him. He sought to amend the complaint to add those individuals but did not state
who they were. Accordingly, plaintiff’s motions to amend will be denied without prejudice.
C.

The Motion to Subpoena

Plaintiff filed a motion asking the Court to issue a subpoena for his medical records.
Plaintiff does not identify the proper custodians of the medical records he seeks and his
motion to subpoena medical records will be denied without prejudice.
D.

Defendants McAndrews and Doe

The complaint was filed on April 26, 2013. Defendants McAndrews and Doe have
not been served with a copy of the complaint within 120 days of the filing date. Accordingly,
this action should be dismissed without prejudice as to defendants McAndrews and Doe
pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.

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IV.

Conclusion
The motion to dismiss filed by defendant Walker will be GRANTED IN PART and

DENIED IN PART and the motion to dismiss filed by defendants Bivens and Strunk will
be GRANTED IN PART and DENIED IN PART; the motions to dismiss will be
GRANTED to the extent the defendants have been sued in their official capacities and will
be DENIED to the extent the defendants have been sued in their individual capacities.
Defendants Walker, Bivens, and Strunk will be ORDERED to file an answer or other
responsive pleading to the complaint within twenty-one days from entry of the Court’s Order.
Plaintiff’s motions to amend and his motion to subpoena medical records will be DENIED
WITHOUT PREJUDICE.

Defendants McAndrews and Doe will be DISMISSED

WITHOUT PREJUDICE.
AN APPROPRIATE ORDER WILL ENTER.

s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE

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