Tate v. Jones et al
REPORT AND RECOMMENDATION:For the reasons stated above, the Magistrate Judge recommends the amended complaint as to Defendant Kelly be dismissed with prejudice for failure to exhaust administrative remedies, or alternatively, under 28 U.S.C. 1915A, f or failure to state a claim. The claims as to the other Defendants remain. Signed by Magistrate Judge Joe Brown on 4/13/2017. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(mg)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
DR. JONES, et al.,
THE HONORABLE WAVERLY D. CRENSHAW, JR.
REPORT AND RECOMMENDATION
recommends that the amended complaint as to the Defendant Kelly be
dismissed with prejudice under 28 U.S.C. § 1915A for failure to
state a cause of action and to exhaust administrative remedies. The
Magistrate Judge further recommends that any appeal from such a
dismissal not be certified as taken in good faith.
The Plaintiff’s original complaint in this matter (Docket
Entry 1) lists Health Administrator Debra Kelly as a Defendant. In
his statement of claims he alleges difficulties resulting after two
of his teeth were removed on April 15, 2016. He did not name
Defendant Kelly at any point in the description of the difficulties.
On March 13, 2017, the Defendant Kelly filed a motion to
dismiss supported by a memorandum of law (Docket Entry 21). In the
memorandum she points out the obvious deficiency in the complaint.
A scheduling order (Docket Entry 27) was entered on March
15, 2017, and the Plaintiff was advised of his right to seek to
amend his complaint to provide additional information about this
Defendant. He was told that he needed to file a complaint which is
complete as to all details so the Court has only to look at a single
document. The Plaintiff was warned that if he did not in some
fashion respond to the motion to dismiss that in all likelihood I
would recommend the claim against Defendant Kelly be dismissed. He
was specifically advised of the need to respond to any dispositive
motions and that he could not simply rely on his complaint.
The Plaintiff filed a motion for a preliminary injunction
(Docket Entry 14) on March 9, 2017. The Defendants responded to that
motion (Docket Entry 37), and in that response they filed copies of
the Plaintiff’s medical records (Docket Entry 37). A hearing on the
Plaintiff’s motion for preliminary injunction was held on March 28,
2017, and the Magistrate Judge subsequently issued a report and
recommendation (Docket Entry 44) recommending that the motion be
The Plaintiff filed a motion to amend his complaint
(Docket Entry 45), which unfortunately did not comply with the
Court’s directions to file a single document which was complete in
all respects. The Plaintiff did attempt to provide more information
about Defendant Kelly. The additional information which he added
(Docket Entry 45, p. 2) states that he signed up for sick call in
February 2017 and was seen by Defendant Kelly. He stated that she
looked at the knot, swelling, and infection on Plaintiff’s jaw, and
although she had the authority to refer him to the facility doctor,
she did not.
Plaintiff alleges that Defendant Kelly stated she would
prescribe Ibuprofen for him and that there was nothing more she
could do for his jaw injuries. He alleged that not referring him to
a doctor and treating his jaw with Ibuprofen constituted deliberate
The Defendants filed a response in opposition to the
motion to amend (Docket Entry 52). In their objection they note the
Plaintiff’s failure to comply with the Court’s order to have a
single complaint, but go on to argue that it should be denied on its
merits on the grounds that the amendment would be futile.
A plaintiff has an absolute right to amend his complaint
without Court permission within 21 days of the filing of a motion
to dismiss under Rule 12(b). In this case the Plaintiff’s motion to
amend was allowed as a matter of course (Docket Entry 53). However,
the amended complaint is still subject to an initial review under
28 U.S.C. § 1915A.
In this case the Magistrate Judge has the benefit of the
amendment as well as the medical records, which have been filed. The
Magistrate Judge believes that the claim against the Defendant Kelly
should be dismissed with prejudice for failing to state a claim. As
an initial matter, complaints of malpractice or allegations of
negligence are insufficient to entitle the Plaintiff to relief under
the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 105-06 (1976).
A prisoner’s difference of opinion regarding diagnosis or treatment
does not rise to the level of an Eighth Amendment violation. Where
a prisoner receives some medical attention and disputes the adequacy
of the treatment civil courts are reluctant to second guess the
medical judgment of prison officials and malpractice claims are
matters for state courts. Westlake v. Lucas, 537 F.2d 857, 860 n.
5 (6th Cir. 1976). In this case Defendant Kelly provided the
Plaintiff Ibuprofen for his pain.
The Magistrate Judge also now has the benefit of the
actual medical records in this case (Docket Entry 37-2). The records
show the Plaintiff has had dental problems since the extraction of
two teeth in April 2016. He has regularly been prescribed Ibuprofen
for pain since that time. From a review of the medical records the
Magistrate Judge did not find Defendant Kelly even listed, although
some of the listings are illegible.
However, taking the Plaintiff’s complaint’s amendment at
fact value, he is alleging action by Defendant Kelly in February
2017. The Plaintiff filed his complaint on January 11, 2017. It
would have therefore been impossible for Plaintiff to have exhausted
his administrative grievances at the time he filed the complaint
Litigation Reform Act, 420 U.S.C. 1997e(a). Therefore, it is clear
from the record that the complaint against Defendant Kelly must be
dismissed for failure to exhaust administrative remedies. One cannot
exhaust administrative remedies about an incident that occurred in
February of 2017 when the complaint is filed a month earlier.
To the extent the Magistrate Judge has considered matters
outside the complaint the Plaintiff has an opportunity to object to
this recommendation to dismiss this Defendant. See Rico v. Wells
Fargo, 2007 WL 4126525 (E.D. Mich. 2007).
recommends the amended complaint as to Defendant Kelly be dismissed
with prejudice for failure to exhaust administrative remedies, or
alternatively, under 28 U.S.C. 1915A, for failure to state a claim.
The claims as to the other Defendants remain.
Under Rule 72(b) of the Federal Rules of Civil Procedure,
any party has 14 days from receipt of this Report and Recommendation
in which to file any written objections to this Recommendation with
the District Court. Any party opposing said objections shall have
14 days from receipt of any objections filed in this Report in which
to file any responses to said objections. Failure to file specific
Recommendation can constitute a waiver of further appeal of this
Recommendation. Thomas v. Arn, 474 U.S. 140 106 S. Ct. 466, 88
L.Ed.2d 435 (1985), Reh’g denied, 474 U.S. 1111 (1986).
ENTER this 12th day of April, 2017.
Joe B. Brown
JOE B. BROWN
United States Magistrate Judge
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