Driver v. Sator et al

Filing 70

REPORT AND RECOMMENDATION re 59 MOTION for Leave to File a Supplemental Complaint. For the foregoing reasons, the undersigned recommends that Plaintiff's Motion for Leave to File a Supplemental Complaint be DENIED. Signed by Magistrate Judge E. Clifton Knowles on 9/10/2013. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

JERRY LYNN DRIVER,
Plaintiff,

vs.

PAUL ALEXANDER, M.D. and
CORIZON MEDICAL SERVICES,
Defendants.

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) CASE NO. 3:13-0364
) JUDGE TRAUGER/KNOWLES
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REPORT AND RECOMMENDATION
This matter is before the Court upon the pro se prisoner Plaintiff’s “Motion for Leave to
File a Supplemental Complaint.” Docket No. 59. Plaintiff seeks to “supplement” his Complaint
by averring actions that allegedly occurred after the filing of his Complaint. Id. Plaintiff has
contemporaneously filed supporting materials, including his proposed Supplemental Complaint.
Docket Nos. 59-1 - 59-3.
Defendants have filed a Response in Opposition to the instant Motion. Docket No. 65.
Defendants essentially argue that Plaintiff’s Motion should be denied because it would be futile,
as the actions of which Plaintiff complains amount to medical malpractice claims and he has
failed to adhere to the requirements for medical malpractice cases as set forth in Tennessee law.
Id. Defendants also contend, “When a prison doctor provides treatment, albeit carelessly or
inefficaciously, to a prisoner, he has not displayed a deliberate indifference to the prisoner’s
needs, but merely a degree of incompetence which does not rise to the level of a constitutional

violation.” Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001). Defendants assert that
Plaintiff received medical care, and that the dispute at issue is whether the type of medication he
has been prescribed is appropriate such that he received adequate treatment. Id.
Plaintiff’s basic claims are that he is receiving medication (Tylenol 3 with Codeine) that
is exacerbating his Hepatitis C and Cirrhosis of the liver, and that, for monetary reasons,
Defendants are refusing to treat him with appropriate medication. See Docket Nos. 1, 59.
Plaintiff has previously sought a Temporary Injunction against Defendants to prevent them from
continuing to prescribe him Tylenol 3 with Codeine. Docket No. 26. The undersigned
recommended that Plaintiff’s Motion for a Temporary Injunction be denied (Docket No. 40), and
the undersigned’s recommendation was adopted and accepted by Judge Trauger (Docket No.
68).
The allegations of Plaintiff’s proposed Supplemental Complaint are that, despite his
requests to the contrary, Defendant Alexander has continued to prescribe him Tylenol 3 with
Codeine, telling Plaintiff that he could safely take up to 4,000 mg per day of the Tylenol 3 with
Codeine. Docket No. 59. Plaintiff argues that, within two weeks, he broke out in red spots that
turned yellow and then brown, and that these spots had not been visible until after he was
prescribed Tylenol 3 with Codeine as his pain medication. Id. Plaintiff argues that “nurses and
other health care providers” have told him that the spots were an indication that his liver
problems had worsened because he was taking Tylenol 3 with Codeine and that he should not be
taking that medication. Id. Plaintiff contends that he again filed a grievance requesting to be
taken off Tylenol 3 with Codeine and placed on different medication that would not harm his
liver, but that Hospital Administrator Tim McConnell responded to his grievance saying that the

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950 mg of Tylenol 3 with Codeine he was taking daily was safe, as he could take up to 4,000 mg
per day. Id.
Although leave to amend a Complaint “shall be freely given when justice so requires”
(Fed. R. Civ. P. 15(a)), “a motion to amend a complaint should be denied if the amendment . . .
would be futile” (Crawford v. Roane, 53 F.3d 750, 753 (6th Cir. 1995)). Futility can occur when,
e.g., the proposed amendment seeks to add a cause of action that is not legally cognizable (Jet
Inc. V. Sewage Aeration Systems, 165 F.3d 419, 525 (6th Cir. 1999), or when the proposed
amendment could not survive a Fed. R. Civ. P. 12(b)(6) motion to dismiss (Thiokol Corp. V.
Dep’t of Treasure, State of Mich., Rev. Div., 987 F.2d 376, 382-83 (6th Cir. 1993).
In Plaintiff’s proposed Supplemental Complaint, Plaintiff acknowledges that Defendants
have provided him medical care and treatment, as it is precisely the treatment that Defendants
have provided him that is at issue. See Docket Nos. 59 - 59-3. Plaintiff’s case centers on his
desire for a different course of treatment than that provided to him by Defendants. Id. While
Plaintiff is entitled to adequate medical care, he is not entitled to the medical care of his
choosing. Dotson v. Correctional Medical Services, 584 F.Supp. 2d 1063, 1067 (W.D. Tenn.
2008). Plaintiff’s contention that the course of treatment Defendants have prescribed for him is
wrong and causes him harm is, therefore, essentially a medical malpractice claim. Medical
malpractice claims sound in State law, and do not amount to a constitutional violation. See, e.g,
Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001); Westlake v. Lucas, 537 F.2d 857, 860
(6th Cir. 1976).
For the foregoing reasons, the undersigned recommends that Plaintiff’s Motion for Leave
to File a Supplemental Complaint be DENIED.

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Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14)
days after service 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
fourteen (14) days after service of any objections filed to this Report in which to file any
response to said objections. Failure to file specific objections within fourteen (14) days of
service of this Report and Recommendation can constitute a waiver of further appeal of this
Recommendation. See 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); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.

E. Clifton Knowles
United States Magistrate Judge

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