Tarvin v. Lindamood et al

Filing 78

ORDER: In sum, Defendants' filings fail to state viable grounds to challenge the conclusions of the Magistrate Judge, or otherwise provide a basis to reject or modify the Report and Recommendation. Having fully considered Defendants' obj ections, the Court concludes they are without merit, and that the Report and Recommendation should be adopted and approved. Accordingly, Defendants' Motions (Doc. Nos. 53 , 64 ) are GRANTED, as to the following claims: (1) Plaintiff's claims against Shane McClain; (2) Plaintiff's Title II ADA claims against CoreCivic; (3) Plaintiff's Eighth Amendment deliberate indifference claim against TDOC; and (4) Plaintiff's First and Fourteenth Amendment access to the courts claim against Matthew Corkum, f/n/u Simmons, Chris Jackson, and TDOC. In all other respects, Defendants' Motions are DENIED. Signed by District Judge William L. Campbell, Jr on 1/30/2020. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(mg)

IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
COLUMBIA DIVISION
COREY TARVIN,
Plaintiff,
v.

CHERRY LINDAMOOD, et al.,
Defendants.

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NO. 1:18-cv-00025
JUDGE CAMPBELL
MAGISTRATE JUDGE FRENSLEY

ORDER
Pending before the Court is the Magistrate Judge’s Report and Recommendation (Doc. No.
70), recommending the Court grant in part, and deny in part Defendants’ partial motions to dismiss
(Doc. Nos. 53, 64). Defendants have filed Objections (Doc. Nos. 72, 73) to the Report and
Recommendation, and Plaintiff has filed a Response (Doc. No. 74) to the Objections.
Under 28 U.S.C. § 636(b)(1) and Local Rule 72.02, a district court reviews de novo any
portion of a report and recommendation to which a specific objection is made. United States v.
Curtis, 237 F.3d 598, 603 (6th Cir. 2001). General or conclusory objections are insufficient. See
Zimmerman v. Cason, 354 F. Appx. 228, 230 (6th Cir. 2009). Thus, “only those specific objections
to the magistrate’s report made to the district court will be preserved for appellate review.” Id.
(quoting Smith v. Detroit Fed’n of Teachers, 829 F.2d 1370, 1373 (6th Cir. 1987)). In conducting
the review, the court may “accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).
In considering a motion to dismiss, a court must determine whether the plaintiff has
sufficiently alleged “a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). A claim has facial plausibility when

the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937,
1949, 173 L. Ed. 2d 868 (2009). Well-pleaded factual allegations are accepted as true and are
construed in the light most favorable to the nonmoving party. 129 U.S. at 1950; Mills v. Barnard,
869 F.3d 473, 479 (6th Cir. 2017).
In his Amended Complaint, Plaintiff alleges he is legally blind and was beaten while
incarcerated at South Central Correctional Facility, a facility operated by CoreCivic to house
prisoners for the Tennessee Department of Corrections (“TDOC”). (Doc. No. 32). Plaintiff alleges
Defendants CoreCivic, TDOC, and certain CoreCivic employees have violated his constitutional
rights and his rights under the Americans with Disabilities Act (“ADA”), and the Rehabilitation
Act. Defendants CoreCivic and TDOC separately moved for dismissal of several of Plaintiff’s
claims. The Magistrate Judge reviewed the parties’ filings and recommends Defendants’ motions
be granted as to the following claims: (1) Plaintiff’s claims against Shane McClain; (2) Plaintiff’s
Title II ADA claims against CoreCivic; (3) Plaintiff’s Eighth Amendment deliberate indifference
claim against TDOC; and (4) Plaintiff’s First and Fourteenth Amendment access to the courts
claim against Matthew Corkum, f/n/u Simmons, Chris Jackson, and TDOC. The Magistrate Judge
recommends denial of the motions as to the following claims: (1) Plaintiff’s Eighth Amendment
failure to protect claim against CoreCivic; and (2) Plaintiff’s First and Fourteenth Amendment
access to the courts claim against CoreCivic. In addition, the Magistrate Judge recommends
denial of Defendants’ request to temporally limit Plaintiff’s Rehabilitation Act claim against
CoreCivic and TDOC and his ADA Title II claim against TDOC.
Defendants CoreCivic, Corkum, and Jackson raise the following objections to the Report

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and Recommendation: (1) the Magistrate Judge erred in failing to recommend dismissal of the
Eighth Amendment failure to provide medical care claim and the Eighth Amendment failure to
protect claim; and (2) the Magistrate Judge erred in failing to recommend dismissal of the First
and Fourteenth Amendment denial of access to the courts claim. With regard to the first objection,
the defendants initially argue the Magistrate Judge erred in construing their motion to dismiss as
omitting a request to dismiss Plaintiff’s Eighth Amendment failure to provide medical care claim.
Having reviewed Defendants’ motion and memorandum (Doc. Nos. 53, 54), the Court is not
persuaded the Magistrate Judge erred in failing to recognize Defendants’ intent to develop such an
argument.1
With regard to the Eighth Amendment failure to protect claim, the defendants argue the
Magistrate Judge erred in finding the Amended Complaint sufficiently alleged liability under
Monell v. Dep’t of Social Servs., 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). CoreCivic
argues that in order to state a claim it acted with deliberate indifference through its training and
supervision, Plaintiff must allege “specific prior instances of unconstitutional conduct
demonstrating that the defendant has ignored a history of abuse and was clearly on notice that the
training or supervision ‘in the particular area’ was deficient and likely to cause injury.” (Doc. No.
73, at 3).
To state an Eighth Amendment claim against a private prison company, like CoreCivic, a
plaintiff must allege the company’s official policies or customs resulted in injury to the plaintiff.
O'Brien v. Michigan Dep't of Corr., 592 Fed. Appx. 338, 341 (6th Cir. 2014). In this case, the
Amended Complaint alleges CoreCivic had a policy and custom of failing to adequately train and

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A footnote in Defendants’ Reply (Doc. No. 69 n.1) brief is not sufficient to put the Magistrate Judge
on notice of such an argument.

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supervise officers on how to handle incidents involving members of a “Security Threat Group”
(“STG”) at the prison, permitting undocumented or unscreened STG cell assignments, and
permitting officers to clear codes without conducting an adequate investigation. (Doc. No. 32 ¶
58). These allegations meet the pleading standards of Rule 12 and Iqbal/Twombley. The cases cited
by Defendants to support their argument for dismissal do not establish the heightened pleading
standard they suggest for this claim.2 See, e.g., Warren v. Metro. Gov't of Nashville, 2015 WL
3417844, at *6 (M.D. Tenn. May 27, 2015) (distinguishing between evidence required to withstand
summary judgment on a failure to train claim and the allegations sufficient to withstand a motion
to dismiss on such a claim). Thus, Defendants’ objections to the Magistrate Judge’s
recommendations on Plaintiff’s Eighth Amendment claims are without merit.
The CoreCivic defendants also argue the Magistrate Judge erred in finding the Amended
Complaint sufficiently alleged a First and Fourteenth Amendment denial of access to the courts
claim because Plaintiff has failed to allege “actual injury.” Defendants contend Plaintiff must
allege a claim has been lost or rejected, or that the presentation of a claim is currently being
prevented, as a result of the denial of his access to the courts.
In order to state a claim for denial or interference with access to the courts, the plaintiff
must show an “actual injury.” Harbin-Bey v. Rutter, 420 F.3d 571, 578 (6th Cir. 2005). Examples

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Plinton v. County of Summit, 540 F.3d 459, 464 (6th Cir. 2008) (finding summary judgment
warranted because plaintiff failed to present probative evidence on the question of county’s deliberate
indifference); Fisher v. Harden, 398 F.3d 837, 849 (6th Cir. 2005) (finding summary judgment warranted
because plaintiff failed to present sufficient evidence that the county’s training programs were inadequate);
Okolo v. Metro. Gov’t of Nashville & Davidson Co., 892 F. Supp. 2d 931, 943 (M.D. Tenn. 2012) (finding
the plaintiff’s “formulaic recitations” failed to adequately state a claim for failure to train); Hutchison v.
Metro. Gov’t. of Nashville & Davidson Co., 685 F. Supp. 2d 747, 751 (M.D. Tenn. 2010) (finding the
plaintiff failed to allege facts related to a municipal liability on traffic stops and disabled drivers or
passengers).

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of actual injury include “having a case dismissed, being unable to file a complaint, and missing a
court-imposed deadline.” Id.
Plaintiff’s denial of access to the courts claim includes the following allegations:
93. Defendants’ practices have obstructed and hindered Plaintiffs’ ability to pursue
his legal claims, including the constitutional rights and disability discrimination
claims asserted in this lawsuit. Those underlying claims are non-frivolous. Indeed,
this Court already found that Plaintiff’s previously asserted constitutional rights
claims were non-frivolous.
94. As described above, Defendants denied Plaintiff the ability to pursue his claims
by denying him necessary services to read and write, refusing to waive the 7-day
grievance limitation while he was in the hospital, and locking him up in a solitary
cell 23 hours per day (leaving him blind and alone). They also denied him
equivalent access to the law library at each facility and the ability to investigate and
grieve his claims timely and effectively.
95. Furthermore, even after this case was filed, Defendants continued to deny Mr.
Tarvin basic services necessary to communicate with the outside world. Then, it
prevented him from communicating with outside counsel in a videoconference,
falsely stamped a letter from the Court concerning the civil appointment of counsel
as “inmate refused,” falsely stamped a letter from counsel as “refused” to obstruct
written communication with his counsel, impounded other communications
without delivering them, failed to translate those that it did deliver, and then
intentionally and surreptitiously violated Plaintiff’s attorney-client privilege during
a videoconference to gain a strategic advantage, to retaliate against him, and to chill
future communications with counsel.
96. Upon information and belief, these actions taken to hinder and obstruct
Plaintiff’s access to the courts are part of a policy, custom, or practice of CoreCivic
and the TDOC. These actions serve no legitimate penological interest – they simply
function to prevent Plaintiff and others from gaining access to the court system and
vindicating their rights.
97. These actions did, and continue to, severely prejudice Plaintiff in pursuing his
legal claims. They prevented him from effectively researching, grieving, and filing
this lawsuit, and they continue to interfere with his ability to effectively
communicate with counsel verbally or writing to further investigate, formulate, and
prosecute his claims against Defendants. These actions have chilled written and
remote communications between Plaintiff and his counsel.
98. The prejudice is severe. To the extent that the statute of limitations or any
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exhaustion requirements might otherwise have barred any of Plaintiff’s claims, the
Court should find that Plaintiff is entitled to equitable tolling or that those doctrines
otherwise do not bar Plaintiff’s claims.
99. Defendants retaliated against Plaintiff for attempting to exercise his right of
access to the courts. Plaintiff’s right to file a public lawsuit and make public
allegations and other filings against Defendants, including his right to amend his
complaint through counsel as ordered by this Court in this case, are forms of
protected First Amendment activity. In connection with the Court’s appointment of
counsel, Defendants intentionally retaliated against the Plaintiff by impounding his
mail or falsely stamping it as having been rejected, and by unlawfully snooping on
attorney-client privileged communications between Plaintiff and his appointed
counsel. These actions were intended to deter Plaintiff from pursuing his claims, to
intimidate him and other prisoners from pressing their rights in court, and to
retaliate against Plaintiff for successfully obtaining appointed counsel. Defendants’
actions would deter a person of ordinary firmness from engaging in this type of
speech in the future.
(Doc. No. 32) (emphasis added).
Plaintiff alleges Defendants’ interference with his access to counsel and the courts
prejudiced him by, among other things, delaying his ability to file grievances and this lawsuit. That
alleged prejudice is evidenced by Defendants’ request to dismiss certain claims on statute of
limitations grounds. (Doc. Nos. 53, 54, 64, 65). Defendants’ objection is meritless. Plaintiff has
sufficiently alleged actual injury resulting from denial of access to the courts.
Defendant TDOC objects to the Magistrate Judge’s failure to recommend temporally
limiting Plaintiff’s ADA and Rehabilitation Act claims. In response to Defendants’ argument that
the statute of limitations bars these claims or requires such temporal limits, Plaintiff has relied, in
part, on the doctrine of equitable tolling. To determine whether equitable tolling should be applied,
courts are to consider the following factors: “(1) lack of notice of the filing requirement; (2) lack
of constructive knowledge of the filing requirement; (3) diligence in pursuing one’s rights; (4)
absence of prejudice to the defendant; and (5) the plaintiff’s reasonableness in remaining ignorant

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of the particular legal requirement.” Jones v. Nat. Essentials, Inc., 740 Fed. Appx. 489, 494 (6th
Cir. 2018) (quoting Truitt v. Cty. of Wayne, 148 F.3d 644, 648 (6th Cir. 1998)). TDOC has not
addressed these factors in its Objections, nor has it identified sufficient factual support for the
courts’ application of the factors at this stage of the proceedings. Thus, TDOC has failed to
demonstrate the Magistrate Judge erred on this point.
In sum, Defendants’ filings fail to state viable grounds to challenge the conclusions of the
Magistrate Judge, or otherwise provide a basis to reject or modify the Report and
Recommendation. Having fully considered Defendants’ objections, the Court concludes they are
without merit, and that the Report and Recommendation should be adopted and approved.
Accordingly, Defendants’ Motions (Doc. Nos. 53, 64) are GRANTED, as to the following claims:
(1) Plaintiff’s claims against Shane McClain; (2) Plaintiff’s Title II ADA claims against CoreCivic;
(3) Plaintiff’s Eighth Amendment deliberate indifference claim against TDOC; and (4) Plaintiff’s
First and Fourteenth Amendment access to the courts claim against Matthew Corkum, f/n/u
Simmons, Chris Jackson, and TDOC. In all other respects, Defendants’ Motions are DENIED.
It is so ORDERED.

_______________________________
WILLIAM L. CAMPBELL, JR.
UNITED STATES DISTRICT JUDGE

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