Deramus v. McCoig

Filing 10

MEMORANDUM AND ORDER: Based on the foregoing, Plaintiff's motion for leave to proceed in forma pauperis [Doc. 2 ] is GRANTED and his motion to appoint counsel [Doc. 3 ] and motion for default judgment [Doc. 7 ] are both DENI ED. To ensure compliance with the fee-collection procedure, the Clerk is DIRECTED to mail a copy of this order to the custodian of inmate accounts at the institution where Plaintiff is now confined. The Clerk is also DIRECTED to furnish a copy of thi s order to the Court's financial deputy. This order shall be placed in Plaintiffs prison file and follow him if he is transferred to another correctional institution. The Court further finds that Plaintiff failed to allege adequate facts to supp ort a claim that his conditions of confinement during his temporary stay in the drunk tank amounted to a violation of his constitutional rights. Therefore, Plaintiff's claims regarding his conditions of confinement are DISMISSED under 28 U.S.C. § 1915(e)(2)(B)(ii). The Clerk is DIRECTED to send Plaintiff a service packet (a blank summons and USM 285 form) for Defendant. Plaintiff is ORDERED to complete the service packet and return it to the Clerk's Office within twenty (20) days of the date of this Order. Signed by District Judge J Ronnie Greer on 11/07/2016. (C/M to Custodian of Inmate Accounts; to pro se Plaintiff along with service packet; email to financial deputy) (AMP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE

EDMOND B DERAMUS,

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Plaintiff,
v.
BUD McCOIG,
Defendant.

No. 3:16-CV-275-JRG-HGB

MEMORANDUM AND ORDER
Edmond B Deramus, an inmate confined in the Morgan County Correctional Complex,
has filed this pro se complaint under 42 U.S.C. § 1983 [Doc. 1]. Additionally, the Court is in
receipt of Plaintiff’s motion for leave to proceed in forma pauperis [Doc. 2], motion to appoint
counsel [Doc. 3], and motion for default judgment [Doc. 7].
Based on the analysis below, Plaintiff’s motion to proceed in forma pauperis will be
GRANTED and his motion to appoint counsel and motion for default judgment will both be
DENIED [Doc. 3 and 7].
I.

Filing Fee
Based on the financial data provided by Plaintiff, his application to proceed without

prepayment of fees [Doc. 1] is GRANTED.

The Prison Litigation Reform Act of 1995

(“PLRA”) requires a prisoner who files a complaint in a district court and wishes to proceed
without prepayment of fees to supply the Court with an application and certified copy of his
inmate trust account for the previous six-month period. 28 U.S.C. § 1915(a)(2). Here, Plaintiff
provided a self-drafted application, along with a print out of recent activity on his trust account

and a notarized certificate of inmate trust fund account showing a total of $1.08 on account to his
credit [Doc. 2 p. 3 and 4].
Because Plaintiff is an inmate, he is ASSESSED the filing fee of three hundred and fifty
dollars ($350). McGore v. Wrigglesworth, 114 F.3d 601, 607 (6th Cir. 1997), overruled on other
grounds by Jones v. Bock, 549 U.S. 199 (2007). The custodian of Plaintiff’s inmate trust account
at the institution where he now resides shall submit, 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 his inmate trust
account for the six-month period preceding the filing of the complaint.

28 U.S.C. §

1915(b)(1)(A) and (B). Thereafter, the trust account 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 has been paid to the Clerk’s Office. McGore, 114 F.3d at 607.
Payments should be sent to: Clerk, USDC; 800 Market Street, Suite 130, Knoxville,
Tennessee 37902.

To ensure compliance with the fee-collection procedure, the Clerk is

DIRECTED to mail a copy of this order to the custodian of inmate accounts at the institution
where Plaintiff is now confined. The Clerk is also DIRECTED to furnish a copy of this order to
the Court’s financial deputy. This order shall be placed in Plaintiff’s prison file and follow him if
he is transferred to another correctional institution.
II.

Screening Requirement
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

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relief, or are against a defendant who is immune. See, e.g., Benson v. O’Brian, 179 F.3d 1014
(6th Cir. 1999).
In screening this complaint, the Court bears in mind that pro se pleadings filed in civil
rights cases must be liberally construed and held to a less stringent standard than formal
pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). Still, the pleading
must be sufficient “to state a claim to relief that is plausible on its face,” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007), which simply means that 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) (citing Twombly, 550 U.S. at
556).
The “facial plausibility” standard does not require “detailed factual allegations, but it
demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at 678
(citations and internal quotation marks omitted). The standard articulated in Twombly and Iqbal
“governs dismissals for failure to state a claim under [28 U.S.C. §§ 1915(e)(2) and 1915A]
because the relevant statutory language tracks the language in Rule 12(b)(6).” Hill v. Lappin,
630 F.3d 468, 470-71 (6th Cir. 2010).
III.

Plaintiff’s Allegations
On January 15, 2016, Plaintiff was arrested on an outstanding warrant and was taken to

Tennova Hospital of Jefferson City to be treated for injuries sustained during his arrest [Doc. 1 p.
2]. Plaintiff claims that he was “going in and out of consciousness” and was “treated for a
broken hand” [Id.]. A partial cast was placed on Plaintiff’s wrist and he was given medication
for the pain [Id.]. Upon checking Plaintiff’s vitals, the doctor ordered Plaintiff to be hospitalized
due to severely high blood pressure [Id.]. Plaintiff was placed on an IV and given blood pressure

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medication [Id.]. Over twenty-four hours passed before Plaintiff’s blood pressure dropped to a
“safe level” [Id. at 2]. Plaintiff was prescribed Narvask, a medication to control his blood
pressure, and Oxycodone, for the pain in his broken wrist [Id.].
The following day, Plaintiff was released from the hospital and booked into Jefferson
County Jail [Id.].

Plaintiff asserts that Deputy Cameron contacted Defendant Sheriff Bud

McCoig (“Defendant”) to request permission to fill Plaintiff’s prescriptions but Defendant
refused to fill the prescriptions [Id.].
On January 17, 2016, Plaintiff filed a medical request regarding his prescriptions and
described “intense pain” in his broken wrist [Id.]. To date, Plaintiff has received no response
from his medical request [Id.]. Additionally, Plaintiff alerted multiple shift supervisors of his
need for medication but was only given Aspirin for his pain [Id.].
On January 28, 2016, Plaintiff was examined by Nurse Connelly during a routine
entrance physical [Id. at 4]. During the physical examination, Nurse Connelly found Plaintiff to
have dangerously high blood pressure [Id.].
Plaintiff claims that he was denied medical care in violation of his Eighth Amendment
rights when Defendant refused to fill his prescriptions. Over a month after being booked at the
jail, Plaintiff’s blood pressure medication was finally filled [Id.]. To date, his prescription for
pain medication has not been filled [Id.].
Furthermore, Plaintiff complains of the conditions of his confinement during his
temporary stay in “the drunk tank cell” [Id.]. Plaintiff explains that “the drunk tank cell” is a cell
used to temporarily hold inmates prior to booking [Id.]. Plaintiff complains that in the drunk
tank his mat was taken away from 6:00 am until 10:00 pm due to jail house policy [Id.]. Plaintiff
requested to be placed in the jail’s medical bay which contains bunk beds, but his request was

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denied [Id.]. Plaintiff alleges that he was forced to rest on the floor without a mat during the day,
causing him pain and discomfort [Id. at 5].
IV.

Analysis
A.

Access to Prescription Medication

At this point in the proceedings, the Court does not find the allegations concerning denied
access to prescription medications to be frivolous or malicious and cannot say that they do not
state a claim which would entitle Plaintiff to relief under § 1983. Thus those specific allegations
may advance.
B.

Conditions of Confinement

Complaints about jail conditions fall within the scope of the “Cruel and Unusual
Punishments” provision in the Eighth Amendment, which prohibits conditions that involve the
wanton and unnecessary infliction of pain and result in the serious deprivation of basic human
needs. Rhodes v. Chapman, 452 U.S. 337, 346-47 (1981).
An Eighth Amendment claim, has an objective element, i.e., a sufficiently serious
deprivation, and a subjective element, i.e., deliberate indifference on the part of a defendant.
Farmer v. Brennan, 511 U.S. 825, 834 (1970). Assuming that Plaintiff’s allegation that he was
forced to rest on the floor without a mat during the day time hours while temporarily held in the
drunk tank are true, the Court finds that Plaintiff has failed to tie the alleged wrongful housing
condition to any action or inaction of Defendant. Accordingly, he has failed to satisfy the
subjective prong of an Eighth Amendment claim.
It may be that Plaintiff believes that, as the sheriff, Defendant is responsible for operating
the jail within constitutional bounds, and, thus, that he has a duty to ensure that the facility is run
in a way that does not infringe upon the rights of inmates housed in the jail. If Plaintiff’s theory

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of recovery is based upon this reasoning, he fails to state actionable § 1983 claims against
Defendant because the law is well-settled that § 1983 liability must be based on more than
respondeat superior, or a defendant’s right to control employees. Taylor v. Mich. Dep’t of Corr.,
69 F.3d 76, 80-81 (6th Cir. 1995). While respondeat superior does not provide a valid basis of
liability, Polk Cnty. V. Dodson, 454 U.S. 312, 325 (1981); Monell, 436 U.S. at 691; Rizzo v.
Goode, 423 U.S. 362 (1976), Plaintiff can still hold Defendant liable so long as he can
demonstrate that he implicitly authorized, approved, or knowingly acquiesced in any alleged
wrongdoing of a subordinate. Leach v. Shelby Cnty. Sheriff, 891 F.2d 1244 (6th Cir. 1989). An
“affirmative link” must exist between the subordinate’s misconduct and the supervisor’s
authorization or approval, tacit or otherwise, of the wrongdoing. Rizzo, 423 U.S. at 371. But
supervisors 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)).
As Plaintiff does not allege that Defendant authorized any unconstitutional conduct, there
is nothing from which to conclude that he condoned any alleged wrongful behavior. Plaintiff’s
assertions, if they are based on a theory of respondeat superior, fail to state a claim against
Defendant.
In the alternative, even if Plaintiff had asserted that Defendant was somehow directly
responsible for the alleged conditions of confinement, the conditions alleged are insufficient to
state a claim for “[T]he Constitution does not mandate comfortable prisons.”

Rhodes v.

Chapman, 452 U.S. 337, 349 (1981). In claims regarding conditions of confinement, only
extreme deprivations can be characterized as punishment prohibited by the Eighth Amendment.

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Hudson v. McMillan, 503 U.S. 1, 8-9 (1992). An extreme deprivation is one “so grave that it
violates contemporary standards of decency to expose anyone unwillingly to such a risk. In
other words, the prisoner must show that the risk of which he complains is not one that today’s
society chooses to tolerate.” Helling v. McKinney, 509 U.S. 25, 36 (1993) (emphasis in original).
Here, requiring an inmate to sleep on a mat on the floor and removing the mat during day
time hours does not violate the Eighth Amendment. See Mounce v. Harris, 206 WL 133571 at
*5 (January 17, 2006). While it might have been uncomfortable and unpleasant in the short
term, it did not constitute either the denial of a basic human need or “the wanton and unnecessary
infliction of pain” as described in Rhodes, 452 U.S. at 347.
Accordingly, Plaintiff’s claims regarding the conditions of his confinement are
DISMISSED for failure to state a claim upon which relief may be granted.
V.

Motion to Appoint Counsel [Doc. 3]
Now before the Court is Plaintiff’s motion for appointment of counsel [Doc. 3]. Therein,

Plaintiff argues that the appointment of counsel by this Court is necessary due to his limited
access to a law library, limited knowledge of the law, and the complexity of the issues presented
in his case [Id.].
However, there is no “automatic” constitutional right to counsel in a civil rights suit and
typically counsel is only appointed in an exceptional case. See Glover v. Johnson, 75 F.3d 264,
268 (6 th Cir. 1996) (observing that courts in the Sixth Circuit do not appoint counsel for
indigent and pro se prisoners in civil cases absent truly extraordinary circumstances.).
The Court has carefully considered Plaintiff’s motion, his ability to represent himself, the
record as a whole, and the issues and complexity of this case, and concludes that there are no
exceptional circumstances to justify appointing counsel at this time. Lavado v. Keohane, 992

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F.2d 601 (6th Cir. 1993). The issues in this case are straightforward and legal, rather than
complex and factual. Mira v. Marshall, 806 F.2d 636 (6th Cir. 1986). Accordingly, the motion
to appoint counsel [Doc. 3] is DENIED.
VI.

Motion for Default Judgment [Doc. 7]
Also before the Court is Plaintiff’s motion for default judgment [Doc. 7].
Entry of default is appropriate as to any party against whom a judgment for affirmative

relief is sought that has failed to plead or otherwise defend as provided by the Federal Rules of
Civil Procedure and where that fact is made to appear by affidavit or otherwise. See Fed. R. Civ.
P. 55(a). Rule 12 of the Federal Rules of Civil Procedure provides, “[A] defendant must serve an
answer within 20 days after being served with the summons and complaint; or if it has timely
waived service under Rule 4(d), within 60 days after the request for a waiver was sent.” Fed. R.
Civ. P. 12(a)(1)(A).
Plaintiff’s complaint is a pro se complaint subject to screening. Thus, the Court finds that
Defendants are not required to file an answer or other pleading in response to Plaintiff’s
complaint until after the Court has completed its mandatory screening process to determine
whether Plaintiff states any cognizable claims.

At the time Plaintiff’s motion was filed,

Plaintiff’s claims had not been screened.
At this stage in the proceedings, the Court finds this motion for default judgment to be
premature prior to screening Plaintiff’s complaint in accordance with the Prisoner Litigation
Reform Act. Accordingly, Plaintiff’s motion for default judgment [Doc. 7] is DENIED.
VII.

Conclusion

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Based on the foregoing, Plaintiff’s motion for leave to proceed in forma pauperis [Doc.
2] is GRANTED and his motion to appoint counsel [Doc. 3] and motion for default judgment
[Doc. 7] are both DENIED.
The Court further finds that Plaintiff failed to allege adequate facts to support a claim that
his conditions of confinement during his temporary stay in the drunk tank amounted to a
violation of his constitutional rights. Therefore, Plaintiff’s claims regarding his conditions of
confinement are DISMISSED under 28 U.S.C. § 1915(e)(2)(B)(ii).
However, at this point in the proceedings, the Court does not find the allegations of
Defendant’s refusal to fill Plaintiff’s medical prescriptions to be frivolous or malicious and
cannot say that they do not state a claim which would entitle Plaintiff to relief under § 1983.
Thus, those specific allegations may advance. Accordingly, the Clerk is DIRECTED to send
Plaintiff a service packet (a blank summons and USM 285 form) for Defendant. Plaintiff is
ORDERED to complete the service packet and return it to the Clerk’s Office within twenty (20)
days of the date of this Order. At that time, the summons 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 packet within the time required could jeopardize his
prosecution of this action.
Defendant SHALL answer or otherwise respond to the complaint within twenty (20)
days from the date of service.
Finally, Plaintiff SHALL promptly notify the Court of any address change and he is
ADVISED that his failure to do so, within fourteen (14) days of any such change, will result in
the dismissal of this lawsuit for failure to prosecute under Rule 41(b) of the Federal Rules of
Civil Procedure.

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SO ORDERED.

s/J. RONNIE GREER
UNITED STATES DISTRICT JUDGE

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