Holland v. Bivens et al (TVV)

Filing 36

MEMORANDUM OPINION. Signed by Chief District Judge Thomas A Varlan on 3/24/15. (c/m) (JBR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
MICHAEL HOLLAND,

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Plaintiff,
v.
RODNEY BIVENS, et al.,
Defendants.

No.:

3:13-CV-235-TAV-CCS

MEMORANDUM OPINION
This action is before the Court on Defendant Dan Walker’s Motion for Summary
Judgment [Doc. 25] and the Motion of Defendants Rodney Bivens and Tammy Strunk for
Summary Judgment [Doc. 32]. No responses were filed, and the time for doing so has
passed. E.D. Tenn. L.R. 7.1, 7.2. For the reasons that follow, the Court will grant the
motions and dismiss this action.
I.

Background
Plaintiff’s complaint concerns an alleged denial of medical treatment, during his

confinements in the Knox County Detention Center (“KCDC”) and the Morgan County
Correctional Complex (“MCCX”), for a tooth infection that spread to his left eye and
resulted in loss of vision in that eye [Doc. 2 p. 3]. He claims he was supposed to obtain
medication for his tooth infection while he was incarcerated in the KCDC, but a nurse
forgot to order it [Id.]. Subsequently, when he asked about the medication that he had not
yet received, head nurse Tammie Strunk and jail administrator Rodney Bivens allegedly

told him to be patient [Id.]. He further claims that he was then transferred to MCCX
because he filed a grievance [Id.]. While there, he claims he contacted Dan Walker,
director of medical services, about his condition but did not receive a response [Id.].
II.

Standard of Review
Summary judgment under Rule 56 of the Federal Rules of Civil Procedure is

proper “if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The
moving party bears the burden of establishing that no genuine issues of material fact
exist. Celotex Corp. v. Catrett, 477 U.S. 317, 330 n.2 (1986); Moore v. Philip Morris
Cos., Inc., 8 F.3d 335, 339 (6th Cir. 1993). All facts and all inferences to be drawn
therefrom must be viewed in the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);
Burchett v. Kiefer, 301 F.3d 937, 942 (6th Cir. 2002).
Yet, “[o]nce the moving party presents evidence sufficient to support a motion
under Rule 56, the nonmoving party is not entitled to a trial merely on the basis of
allegations.” Curtis Through Curtis v. Universal Match Corp., 778 F. Supp. 1421, 1423
(E.D. Tenn. 1991) (citing Celotex, 477 U.S. at 317). To establish a genuine issue as to
the existence of a particular element, the nonmoving party must point to evidence in the
record upon which a reasonable finder of fact could find in its favor. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The genuine issue must also be material; that is, it
must involve facts that might affect the outcome of the suit under the governing law. Id.
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The Court’s function at the point of summary judgment is limited to determining
whether sufficient evidence has been presented to make the issue of fact a proper
question for the factfinder. Anderson, 477 U.S. at 250. The Court does not weigh the
evidence or determine the truth of the matter. Id. at 249. Nor does the Court search the
record “to establish that it is bereft of a genuine issue of material fact.” Street v. J.C.
Bradford & Co., 886 F.2d 1472, 1479–80 (6th Cir. 1989). Thus, “the inquiry performed
is the threshold inquiry of determining whether there is a need for a trial—whether, in
other words, there are any genuine factual issues that properly can be resolved only by a
finder of fact because they may reasonably be resolved in favor of either party.”
Anderson, 477 U.S. at 250.
III.

Analysis
According to plaintiff, he contacted defendant Walker about his eye problems and

defendant Walker failed to respond [Doc. 2 p. 3]. Defendant Walker argues plaintiff
cannot show that he was personally involved in the alleged violations of plaintiff’s
constitutional rights and respondeat superior is not a basis for liability under § 1983.
Also according to plaintiff, he contacted defendants Bivens and Strunk about his
eye problems and they responded by telling him to be patient [Doc. 2 p. 3]. Among other
things, these defendants argue plaintiff cannot show that they personally violated
plaintiff’s rights because they were not personally involved in the provision of his
medical care.

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A plaintiff pursuing a § 1983 claim must allege and prove that each defendant was
personally involved in the alleged unconstitutional activity set out in the complaint.
Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“[A] plaintiff must plead that each
Government-official defendant, through the official’s own individual actions, has
violated the Constitution.”). Liability under § 1983 cannot be based upon mere failure to
act, and allegations that a defendant mishandled a grievance or failed to investigate a
complaint are insufficient. Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999); Bellamy
v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984); see also Henry v. Pogats, 35 F.3d 565,
1994 WL 462129, at *2 (6th Cir. Aug. 25, 1994) (“A combination of knowledge of a
prisoner’s grievance and failure to respond or remedy the complaint is insufficient to
impose liability under § 1983.” (citation omitted)).

Moreover, liability cannot be

imposed solely on the basis of respondeat superior. Polk County v. Dodson, 454 U.S.
312, 325 (1981); Bradley, 729 F.2d at 421. Instead, liability under § 1983 must be based
on active unconstitutional behavior. At a minimum, a plaintiff must show the official at
least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional
conduct of his or her subordinates. Combs v. Wilkinson, 315 F.3d 548 (6th Cir. 2002).
With respect to defendant Walker, plaintiff seeks to impose liability upon
defendant Walker because he did not respond to complaints about plaintiff’s eye. This is
insufficient to impose liability. Moreover, from evidence in the record, it appears that
defendant Walker had no authority, direction, control, or influence over the medical care
and treatment provided to plaintiff at MCCX, nor did he have authority, direction, or
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control over the scheduling of plaintiff’s medical appointments or surgeries [Doc. 26-1 ¶¶
4–9].

Accordingly, the Court finds that defendant Walker is entitled to summary

judgment and shall be dismissed from this action.
With respect to defendant Bivens and Defendant Strunk, upon review of the
record, plaintiff asserts he complained to them about his eye problems and they failed to
respond, telling him to be patient. From evidence in the record, it appears that defendant
Bivens does not personally examine or provide any medical services to or for any
individual KCDC inmates, nor personally direct any medical care or medical treatment,
nor personally render any medical care or medical treatment decisions [Doc. 32-1 ¶¶ 2–
3]. It further appears that defendant Bivens never spoke to plaintiff and was unaware that
plaintiff claimed to have any need for medication treatment while he was an inmate at the
facility [Id.].
Defendant Strunk oversees the medical staff and all inmate medical care and
treatment at the detention facility on Maloneyville Road and for inmates housed at the jail
in the City County Building [Doc. 32-2 ¶ 2]. The record indicates that she did not
personally examine or provide medical services to or for plaintiff, nor personally direct
any medical care or medical treatment, nor personally render any medical care or
treatment decisions with respect to plaintiff [Id. ¶ 4]. And she states that plaintiff never
complained to her about any delay in treating his infection [Id. ¶ 5]. Thus, it seems
defendant Strunk was unaware of any need for medical treatment for plaintiff [Id.].

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To the extent that defendants Bivens and Strunk did become aware of plaintiff’s
need or desire for medication and told plaintiff to be patient, liability cannot be based
upon the filing of a complaint or grievance with a supervisory official who then fails to
act. Accordingly, the Court finds defendants Bivens and Strunk are entitled to summary
judgment and will be dismissed.
IV.

Conclusion
For the reasons explained herein, the Court will GRANT Defendant Dan Walker’s

Motion for Summary Judgment [Doc. 25] and the Motion of Defendants Rodney Bivens
and Tammy Strunk for Summary Judgment [Doc. 32], and DISMISS this action. The Court
will CERTIFY 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.
ORDER ACCORDINGLY.

s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE

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