Shabazz v. Schofield et al

Filing 539

ORDER: The Court rules as follows:(1) The R & R (Docket No. 490 ) recommending denial of Plaintiff's requests for injunctive relief is hereby ACCEPTED insofar is it makes that recommendation in relation to injunctive relief for other inmates, and Plaintiff's "Motion to Amend and Supplemental Motion for Injunctive Relief" (Docket No. 281 ) that purports to raise claims on behalf of others is DENIED. The R & R is VACATED insofar as it denies injunctive relief to Plaintiff and this matter is RETURNED to Magistrate Judge Knowles for further consideration of this issue. With this ruling, Plaintiff's Objections to the R & R (Docket Nos. 499 & 500 ) are hereby DENIED AS MOOT. (2) The R & Rs recommending denial o f Plaintiff's Motions for Partial Summary Judgment as to Defendants Schofield and Lester (Docket Nos. 491 & 492 ) are hereby ACCEPTED; Plaintiff's Objections (Docket Nos. 500 & 501) are OVERRULED; and his Motions for Partial Summary J udgment (Docket Nos. 216 & 395 ) are hereby DENIED AS MOOT. (3) Plaintiff Objections (Docket No. 517) to the denial of his requests for sanctions, and his Objections (Docket No. 516) to the extension of time for filing dispositive Motions are OVERRULED. Signed by Chief Judge Kevin H. Sharp on 4/16/2015. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
OMOWALE ASHANTI SHABAZZ,
Plaintiff,
v.
DERRICK SCHOFIELD, et al.,
Defendants.

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No. 3:13-00091
Judge Sharp

ORDER
Pending before the Court are several Reports and Recommendations (“R & R’s”) and Orders,
to which Plaintiff has filed either “Objections” or “Motions for Review.” The Court considers the
R & Rs and Orders, and Plaintiff’s objections thereto, seriatim.
A. Requests for Injunctive Relief
Plaintiff has filed a Motion for a Temporary Injunction (Docket No. 245) in which he requests
that Defendants be ordered to provided him treatment for Hepatitis C. He subsequently amended this
Motion (Docket No. 281) to include a request that Defendants be enjoined from denying or delaying
treatment to other inmates who have Hepatitis C.
In an R & R (Docket No. 490), Magistrate Judge Knowles recommends that Plaintiff’s
requests for injunctive relief be denied. Even though this Court’s review is limited because the
recommended disposition is non-dispositive, thus the Court can only “modify or set aside any part
of the order that is clearly erroneous or is contrary to law,” Fed. R. Civ. P. 72(a), and even though
the ultimate decision to grant or deny preliminary injunctive relief is generally a matter of discretion,
Ohio State Conference of N.A.A.C.P. v. Husted, 768 F.3d 524, 533 (6th Cir. 2012), the Court
concludes that this matter must be returned to the Magistrate Judge for further consideration.

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In support of his Motion for a Temporary Restraining Order, Plaintiff relies on his “Amended
and Supplemental and Verified Complaint,” which, because it is verified, carries the same weight as
an affidavit. See, El Bey v. Roop, 530 F.3d 407, 414 (6th Cir. 2008). In that Complaint, Plaintiff
alleges that, sometime around 2006, he “was diagnosed with Hepatitis C.” (Docket No. 323, Cmp.
¶ 45). He claims he has never “received any treatment for Hepatitis C, although he has received
sporadic monitoring and blood work,” (Id. ¶ 53), and this alleged failure in treatment violates the
terms of the settlement of a grievance that he had filed against the Tennessee Department of
Corrections. After the settlement, and before treatment began, Plaintiff was transferred to another
institution.
In the R & R, Magistrate Judge Knowles points out that “there are significant differences
between the relief Plaintiff has requested in his complaints versus the relief he has requested in the
instant Motion and its Supplement,” (Docket No. 490 at 5), and focusing solely on the latter, which
controls, concludes that Plaintiff has not shown a substantial likelihood of success on the merits.
Magistrate Judge Knowles also recommends that injunctive relief be denied because the acts sought
to be enjoined cannot be described in reasonable detail, and Plaintiff is not entitled to some of the
relief he seeks.
Insofar as Plaintiff requests an injunction in favor of other inmates, the Court agrees that
Plaintiff is not entitled to that relief. Not only does he represent only himself in this litigation, the
decision of whether a specific inmate should be provided with certain medical treatment is a highly
individualized matter. There is absolutely no basis to issue a blanket injunction about medical
treatment, even for those inmates who may have Hepatitis C, particularly since a deliberate
indifference claim requires as showing that the “alleged mistreatment was objectively serious” and
that prison officials “subjectively ignored the risk to the inmate’s safety.” Bishop v. Hackel, 636 F.3d

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757, 766 (6th Cir. 2011).
Plaintiff’s own request for treatment may be a different matter. In the R & R, after quoting
the supervisor’s response to Plaintiff’s grievance, Magistrate Judge Knowles concluded that “[t]here
was . . . no ‘prescribed’ Hepatitis C treatment that was actually ordered or directed by Dr. Campbell,”
and that “[d]espite Plaintiff’s attempts to argue that somehow Dr. Campbell directed or ordered that
Plaintiff receive certain treatment, the record simply does not support such an argument.” (Docket
No. 490 at 6).
Respectfully, that may be too narrow a reading of the record. The quoted response of the
supervisor to the grievance was a follows:
According to inmate Dean’s medical record there was no indication that he had
requested treatment for his illness. I met with him and Dr. Campbell today and they
agreed to start inmate Dean on the process for receiving treatment for his illness in
accordance with the CDC Centers for Disease Control and the NIH National Institute
for Health. As a result of this meeting inmate Dean agreed to resolve this grievance.
(Docket No. 1, Complaint at 91). In the Court’s opinion, this suggests that Dr. Campbell did, in fact,
determine that Plaintiff needed treatment for his Heptatitis C in accordance with the protocols
established by the CDC and NIH, unless one assumes (perhaps unwarrantedly) that Dr. Campbell just
feigned agreement to resolve a grievance.
Admittedly, the record on this issue is not complete. So far as the Court can tell, Defendants
have never responded to Plaintiff’s Motion for a Temporary Injunction. They apparently have failed
to do so, even though Plaintiff’s Motion has been pending for a very long time, and even though this
Court’s Local Rules provide that a “[f]ailure to file a timely response shall indicate that there is no
opposition to [a] motion” that has been filed. L.R. 7.01(b). The Court will leave it to Magistrate
Judge Knowles to determine whether a response by Defendants should be allowed, and/or whether
an evidentiary hearing is necessary.

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As for the remedy requested for Plaintiff’s own medical condition, it may not be too broad.
Dr. Campbell, presumably for legitimate medical reasons, appears to have concluded that Plaintiff
needs treatment in accordance with the NIH and/or CDC standards, yet Plaintiff claims to have
received no treatment, even though he has elevated enzyme levels and is at serious risk of harm.
It may well be that Plaintiff will be unable to establish a substantial likelihood of success on
the merits, or entitlement to treatment in accordance with specific protocols. After all, deliberate
indifference to a serious medical need “is not mere negligence, but rather “requires that the
defendants knew of and disregarded a substantial risk of serious harm to [a plaintiff’s] health and
safety.” Phillips v. Roane Cnty., 534 F.3d 531, 539 (6th Cir.2008). Moreover, where “the dispute
is over the adequacy of the treatment, federal courts are generally reluctant to second guess medical
judgments and to constitutionalize claims that sound in state tort law.” Graham ex rel. Estate of
Graham v. Cnty. of Washtenaw, 358 F.3d 377, 385 (6th Cir. 2004).
The record as it now stands is simply insufficient to make considered determination as to
whether Plaintiff is entitled to injunctive relief because it does not answer many questions, including,
most fundamentally, whether Plaintiff’s health is at serious risk due to the lack of treatment which
is medically necessary. Accordingly, the matter will be returned to Magistrate Judge Knowles for
further consideration.
B. Requests for Partial Summary Judgment
Magistrate Judge Knowles has entered a R & R (Docket No. 491) recommending that
Plaintiff’s Motion for Partial Summary Judgment as to Defendant Derrick Schofield (Docket No.
296) be denied as moot, and another R & R (Docket No. 492) recommending the same disposition
of the Motion for Partial Summary Judgment as to Jerry Lester (Docket No. 315). The basis for both
recommendations is that, after both Motions were filed, Plaintiff filed an Amended and Supplemental

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Complaint, rendering his motions moot. This was a correct application of law. See, Drake v. City
of Detroit, 266 F. App’x 444, 448 (6th Cir. 2008)) (stating that a prior “complaint is a nullity, because
an amended complaint supercedes all prior complaints”); Tuttobene v. Assurance Group, Inc., 2012
WL 2871848, at *1 n.1 (M.D. Tenn. July 12, 2012) (motion to dismiss denied as moot where plaintiff
filed an amended complaint). These two R & Rs will be accepted, and Plaintiff’s objections (Docket
Nos. 500 & 501) will be overruled.
C. Motion for Sanctions
Plaintiff objects (Docket No. 517) to Magistrate Judge Knowles’ Order (Docket No. 505)
denying Plaintiff’s request for sanctions against Defendant Corizon’s attorneys (Docket No. 206).
He argues that his claim that Corizon received his medical records is not based solely on hearsay, as
Magistrate Judge Knowles stated, because there is evidence in the record that Corizon’s attorneys
actually subpoenaed his medical records.
Even if that is true, however, Magistrate Judge Knowles correctly observed that “a plaintiff
who files suit claiming medical injuries or medical problems waives his right to confidentiality with
regard to his medical records,” and since Plaintiff has sued Corizon for providing him
Constitutionally inadequate medical care . . . [s]urely, under those circumstances, Corizon is entitled
to see Plaintiff’s medical records.” (Docket No. 505 at 3-4). Magistrate Judge Knowles did not err
in denying Plaintiff’s request for sanctions.
D. Motions for Extensions of Time
Magistrate Judge Knowles’ has entered an Order (Docket No. 506) which, among other
things, extended the time for Defendants to file dispositive Motion. Notwithstanding Plaintiff’s 10page Objection (Docket No. 516), the decision to allow further time, if not the epitome of the exercise
of discretion, was certainly not its abuse. See, Kimble v. Hoso, 439 F.3d 331, 336 (6th Cir. 2006)

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(courts “enjoy broad discretion in matters of pretrial management, scheduling, and docket control”).
E. Conclusion
In accordance with the foregoing, the Court rules as follows:
(1) The R & R (Docket No. 490) recommending denial of Plaintiff’s requests for injunctive
relief is hereby ACCEPTED insofar is it makes that recommendation in relation to injunctive relief
for other inmates, and Plaintiff’s “Motion to Amend and Supplemental Motion for Injunctive Relief”
(Docket No. 281) that purports to raise claims on behalf of others is DENIED. The R & R is
VACATED insofar as it denies injunctive relief to Plaintiff and this matter is RETURNED to
Magistrate Judge Knowles for further consideration of this issue. With this ruling, Plaintiff’s
Objections to the R & R (Docket Nos. 499 & 500) are hereby DENIED AS MOOT.
(2) The R & Rs recommending denial of Plaintiff’s Motions for Partial Summary Judgment
as to Defendants Schofield and Lester (Docket Nos. 491 & 492) are hereby ACCEPTED; Plaintiff’s
Objections (Docket Nos. 500 & 501) are OVERRULED; and his Motions for Partial Summary
Judgment (Docket Nos. 216 & 395) are hereby DENIED AS MOOT.
(3) Plaintiff Objections (Docket No. 517) to the denial of his requests for sanctions, and his
Objections (Docket No. 516) to the extension of time for filing dispositive Motions are
OVERRULED.
It is SO ORDERED.
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KEVIN H. SHARP
UNITED STATES DISTRICT JUDGE

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