Harris v. Likens et al

Filing 11

MEMORANDUM AND ORDER Assessing Filing Fee ($350) for Donald Wayne Harris per granting of 10 IFP. For the reasons given above, this action is hereby DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(b)(ii), for failure to state a claim upon which relief can be granted. Plaintiff's motion to appoint counsel (Doc. No. 9 ) is DENIED as moot. This is the final order in this action. The Clerk SHALL enter judgment. Fed. R. Civ. P. 58(b)(1). It is so ORDERED. Signed by District Jud ge William L. Campbell, Jr on 3/31/2021. (xc:Pro se party and to Warden of Hardeman County Correctional Facility by regular mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) Modified text on 3/31/2021 (hb).

IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
COLUMBIA DIVISION
DONALD WAYNE HARRIS,
Plaintiff,
v.
CANDACE WRIGHT LIKENS, et al.,
Defendants.

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NO. 1:20-cv-00049
JUDGE CAMPBELL

MEMORANDUM AND ORDER
Plaintiff Donald Wayne Harris, a state inmate formerly incarcerated in the Marshall County
Jail, has filed a pro se complaint under 42 U.S.C. § 1983 (Doc. No. 1), a motion to appoint counsel
(Doc. No. 9), and an application for leave to proceed in forma pauperis (IFP) (Doc. No. 10).
The case is before the Court for ruling on the IFP application and for initial review pursuant
to the Prison Litigation Reform Act (PLRA), 28 U.S.C. §§ 1915(e)(2), 1915A, and 42 U.S.C.
§ 1997e.
I. APPLICATION TO PROCEED IFP
Under the PLRA, 28 U.S.C. § 1915(a), a prisoner bringing a civil action may apply for
permission to file suit without prepaying the filing fee required by 28 U.S.C. § 1914(a). Because
Plaintiff’s IFP application substantially complies with the statutory requirements and demonstrates
that he lacks the funds to pay the entire filing fee in advance, that application (Doc. No. 10) is
GRANTED.
Pursuant to 28 U.S.C. §§ 1915(b) and 1914(a), Plaintiff is nonetheless assessed the $350
civil filing fee. The warden of the facility in which Plaintiff is currently housed, as custodian of

Plaintiff’s trust account, is DIRECTED to submit to the Clerk of Court, as an initial payment, the
greater of: (a) 20% of the average monthly deposits to Plaintiff’s credit at the jail; or (b) 20% of
the average monthly balance to Plaintiff’s credit for the six-month period immediately preceding
the filing of the complaint. 28 U.S.C. § 1915(b)(1). Thereafter, the custodian shall submit 20% of
Plaintiff’s preceding monthly income (or income credited to Plaintiff for the preceding month),
but only when the balance in his account exceeds $10. Id. § 1915(b)(2). Payments shall continue
until the $350 filing fee has been paid in full to the Clerk of Court. Id. § 1915(b)(3).
The Clerk of Court MUST send a copy of this Order to the warden of the facility where
Plaintiff is housed to ensure compliance with that portion of 28 U.S.C. § 1915 pertaining to the
payment of the filing fee. If Plaintiff is transferred from his present place of confinement, the
custodian must ensure that a copy of this Order follows Plaintiff to his new place of confinement,
for continued compliance with the Order. All payments made pursuant to this Order must be
submitted to the Clerk of Court for the United States District Court for the Middle District of
Tennessee, 801 Broadway, Nashville, TN 37203.
II. INITIAL REVIEW
A. PLRA Screening Standard
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court must dismiss any IFP complaint that is
facially frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks
monetary relief against a defendant who is immune from such relief. Similarly, Section 1915A
provides that the Court shall conduct an initial review of any prisoner complaint against a
governmental entity, officer, or employee, and shall dismiss the complaint or any portion thereof
if the defects listed in Section 1915(e)(2)(B) are identified. Under both statutes, this initial review
of whether the complaint states a claim upon which relief may be granted asks whether it contains

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“sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face,”
such that it would survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Hill
v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)).
“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.”
Iqbal, 556 U.S. at 678. Applying this standard, the Court must view the complaint in the light most
favorable to Plaintiff and, again, must take all well-pleaded factual allegations as true. Tackett v.
M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551
F.3d 461, 466 (6th Cir. 2009) (citations omitted)). Furthermore, pro se pleadings must be liberally
construed and “held to less stringent standards than formal pleadings drafted by lawyers.” Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). However,
pro se litigants are not exempt from the requirements of the Federal Rules of Civil Procedure,
Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989), nor can the Court “create a claim which [a
plaintiff] has not spelled out in his pleading.” Brown v. Matauszak, 415 F. App’x 608, 613 (6th
Cir. 2011) (quoting Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975)).
B. Section 1983 Standard
Plaintiff seeks to vindicate alleged violations of his federal constitutional rights under 42
U.S.C. § 1983. Section 1983 creates a cause of action against any person who, acting under color
of state law, deprives an individual of any right, privilege or immunity secured by the Constitution
or federal laws. Wurzelbacher v. Jones-Kelley, 675 F.3d 580, 583 (6th Cir. 2012). Thus, to state a
Section 1983 claim, Plaintiff must allege two elements: (1) a deprivation of rights secured by the

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Constitution or laws of the United States, and (2) that the deprivation was caused by a person
acting under color of state law. Carl v. Muskegon Cnty., 763 F.3d 592, 595 (6th Cir. 2014).
C. Allegations and Claims
Plaintiff alleges that, on May 14, 2020, he “reported to Nurse Candace that [he] was losing
[his] vision, [having] headaches, and deterioration of [his] vision,” and that he also “wrote or spoke
with [Jail Administrator] Sabrina Patterson, [Assistant Jail Administrator] Richard Phillips, and
[Marshall County Sheriff] Billy Lamb,” all of whom noted that Nurse Candace had performed an
eye examination since the Marshall County Jail did not have an eye doctor. (Doc. No. 1 at 6.) Over
two months later, in the span of two weeks between July 27 and August 10, 2020, Plaintiff alleges
that he requested and was denied treatment “for [his] failing eyesight” on six occasions. (Id. at 5,
7.) He claims that his worsening eyesight left him unable to see an attack launched by a fellow
inmate who hit Plaintiff with a lunch tray. (Id.) As relief, Plaintiff seeks $350,000 “for being
assaulted with a lunch tray and not being seen by medical.” (Id.)
It appears from attachments to the Complaint 1 that Plaintiff filed a sick call request on July
27, 2020, complaining that he was losing his eyesight, which had worsened since he filed the last
such request “a couple of months ago.” (Doc. No. 1-1 at 1–2.) The response to the July 27 request
was essentially that the county would arrange for an eye exam by a specialist but would not pay
for it, and that Plaintiff could attempt to secure help in paying for an exam through local churches
or other charitable organizations. (Id. at 2.) Then, on August 4, Plaintiff filed a grievance
complaining of the denial of an examination by an eye doctor, in which he stated that he was

In performing the PLRA screening to determine whether a prisoner complaint states a claim, the
Court may consider grievances and other items attached to the complaint. Hardy v. Sizer, No. 16-1979,
2018 WL 3244002, at *2 (6th Cir. May 23, 2018) (citing Bassett v. Nat’l Collegiate Athletic Ass’n, 528
F.3d 426, 430 (6th Cir. 2008) (explaining that a district court evaluating whether a complaint fails to state
a claim may consider “any exhibits attached” to the complaint).

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experiencing blurred vision and headaches and “need[ed] a trained official to determine if [he]
need[s] glasses or not.” (Id. at 5.) In response, a nurse stated that Plaintiff was “currently on our
doctor’s list & will be seen at the next available date.” (Id.) Two days later, on August 6, Plaintiff
directed a grievance to Sheriff Lamb, complaining that he needed to see a specialist due to his
symptoms and that Nurse Candace was not qualified to perform an eye examination; in response,
Sheriff Lamb stated that he had requested Plaintiff be scheduled for an appointment with an eye
doctor. (Id. at 6.)
D. Analysis
Plaintiff claims that Defendants violated his right to medical care by delaying or denying
treatment of his worsening eyesight. (Doc. No. 1 at 4.) That claim arises under the Eighth
Amendment and requires a plausible allegation of deliberate indifference to a serious medical
need. Darrah v. Krisher, 865 F.3d 361, 367 (6th Cir. 2017).
Deliberate-indifference claims have both an objective and subjective component. The
objective component requires that Plaintiff’s visual complaints and associated headaches present
a sufficiently serious medical need, see Rhinehart v. Scutt, 894 F.3d 721, 737 (6th Cir. 2018)––
i.e., “one that has been diagnosed by a physician as mandating treatment or one that is so obvious
that even a lay person would easily recognize the necessity for a doctor’s attention.” Harrison v.
Ash, 539 F.3d 510, 518 (6th Cir. 2008) (citation and quotation marks omitted). If it does, the
subjective component requires that Defendants understood yet consciously disregarded his need
for treatment of those symptoms. See Rhinehart, 894 F.3d at 738. Deliberate indifference thus
entails conduct that “amounted to more than ordinary negligence or medical malpractice.” Atkins
v. Parker, No. 19-6243, 972 F.3d 734, 739 (6th Cir. 2020) (citing Farmer v. Brennan, 511 U.S.
825, 835 (1994)). It has been described as “something approaching a total unconcern for [the

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inmate’s] welfare in the face of serious risks, or a conscious, culpable refusal to prevent harm.”
Slone v. Lincoln Cnty., Ky., 242 F. Supp. 3d 579, 591 (E.D. Ky. 2017) (quoting Duane v. Lane,
959 F.2d 673, 677 (7th Cir. 1992)).
Here, presuming the truth of Plaintiff’s alleged need for vision correction and treatment of
associated symptoms, those allegations simply do not support a finding of the serious medical need
required to state an Eighth Amendment claim. Two months after the denial of his initial request to
be examined by an eye doctor, Plaintiff filed one additional sick call request before turning to the
grievance process to pursue such relief. Nowhere in the Complaint or attached sick call and
grievance filings does Plaintiff allege that the vision loss he suffered was dramatic or abrupt, that
his headaches were severe or unremitting, or that there was reason to believe that his blurry vision
and worsening eyesight might be related to any more serious medical concern. Cf. Lumbard v.
Lillywhite, 815 F. App’x 826, 832–33 (6th Cir. 2020) (finding that inmate had shown symptoms
that “were the kind that, if deliberately ignored, would reveal a sufficiently culpable state of mind
by the relevant prison official in denying medical care,” including frequent complaints of eyesight
that was abruptly deteriorating, blurred vision, double vision, and headaches in inmate with
undiagnosed multiple sclerosis).
Instead, Plaintiff’s filings assert that he had a “need [for] a specialist to check [his] eyes”
(Doc. No. 1-1 at 6) in order to determine if he required a prescription for eyeglasses (id. at 5); and,
that because of the “lack/delay in medical care,” he was left vulnerable to an attack which he
otherwise “could have seen.” (Doc. No. 1 at 7.) Such allegations are not sufficient to establish an
objectively serious medical need. See Wagner v. City of Saint Louis Dep’t of Public Safety,
4:12CV1901 AGF, 2014 WL 3529678, at *8 (E.D. Mo. July 16, 2014) (“Courts in this District
and others have concluded as a matter of law that the denial of eyeglasses and eye medication or

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headaches and blurry vision resulting from an incorrect eyeglass prescription are insufficient to
establish an objectively serious medical need.”) (citing, e.g., Davidson v. Scully, 155 F. Supp. 2d
77, 88–89 (S.D.N.Y. 2001) (concluding that headaches and blurry vision resulting from an
incorrect eyeglasses prescription “are not a sufficiently serious condition” to establish a violation
of the Eighth Amendment)).
Nor does the harm Plaintiff allegedly suffered indicate that the delay following early
refusals to pay for an eye examination resulted in a serious medical need. See Blackmore v.
Kalamazoo Cnty., 390 F.3d 890, 897 (6th Cir. 2004) (citing cases for proposition that “the
seriousness of a prisoner’s medical needs may also be decided by the effect of delay in treatment,”
considering whether delay “caused injury, loss, or handicap” or “whether any delay in providing
medical care was harmless”). Rather, Plaintiff’s grievance filings in early August 2020 quickly
persuaded the Sheriff and an unidentified nurse to recommend a doctor’s visit (Doc. No. 1-1 at 5,
6), and he does not allege any untreated or unresolved pain or injury from eyestrain, headaches, or
the incident “where a member of the Aryan Nation hit [him] with a dinner tray.” (Id. at 8.)
Accordingly, the Court finds that Plaintiff fails to allege a plausible right to relief under the
Eighth Amendment. His Complaint must therefore be dismissed.
III. CONCLUSION
For the reasons given above, this action is hereby DISMISSED pursuant to 28 U.S.C.
§ 1915(e)(2)(b)(ii), for failure to state a claim upon which relief can be granted. Plaintiff’s motion
to appoint counsel (Doc. No. 9) is DENIED as moot.

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This is the final order in this action. The Clerk SHALL enter judgment. Fed. R. Civ. P.
58(b)(1).
It is so ORDERED.
____________________________________
WILLIAM L. CAMPBELL, JR.
UNITED STATES DISTRICT JUDGE

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