Tankesly v. Corrections Corporation of America et al

Filing 284

REPORT AND RECOMMENDATION: The Magistrate Judge RECOMMENDS that: 1) the motions for summary judgment filed by Dr. Coble, NP Martin, and Nurse Orton (Docs. 218, 223) be GRANTED; 2) all federal law claims against Dr. Coble, NP Martin, and Nurse Orton be DISMISSED WITH PREJUDICE; 3) the district court DECLINE TO EXERCISE SUPPLEMENTAL JURISDICTION over plaintiff's state law claims against Dr. Coble, NP Martin and Nurse Orton; 4) plaintiff's state law claims be DISMISSED WITHOUT PREJUDI CEto whatever relief plaintiff may be entitled in state court; 5) acceptance and adoption of this R&R constitute the FINAL JUDGMENT in this action; 6) any appeal NOT BE CERTIFIED as taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). Signed by Magistrate Judge Joe Brown on 3/2/2017. (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
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
CALVIN TANKESLY, JR. # 90944,
Plaintiff,
v.
CORRECTIONS CORPORATION
OF AMERICA, ET AL.,
Defendants.

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No. 3:14-00911
Judge Trauger/Brown

REPORT AND RECOMMENDATION
For the reasons explained below, the Magistrate Judge RECOMMENDS that: 1) the
motions for summary judgment filed by Dr. Robert Coble, M.D., Nurse Practitioner (NP) Susan
Martin, and Nurse Karen Orton (Docs. 218, 223) be GRANTED; 2) all federal law claims against
Dr. Coble, NP Martin, and Nurse Orton be DISMISSED WITH PREJUDICE; 3) the district court
DECLINE TO EXERCISE SUPPLEMENTAL JURISDICTION over plaintiff’s state law claims
against Dr. Coble, NP Martin and Nurse Orton; 4) plaintiff’s state law claims be DISMISSED
WITHOUT PREJUDICE to whatever relief plaintiff may be entitled in state court; 5) acceptance
and adoption of this Report and Recommendation (R&R) constitute the FINAL JUDGMENT in
this action; 6) any appeal NOT BE CERTIFIED as taken in good faith pursuant to 28 U.S.C. §
1915(a)(3).
I. INTRODUCTION
AND
BACKGROUND
Plaintiff proceeding pro se and in forma pauperis was a prisoner in the South Central
Correctional Facility (SCCF) in Clifton, Tennessee when he brought this action on April 1, 20141
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The envelope in which plaintiff mailed his complaint to the district court is not stamped with the date it was
delivered to the SCCF mailroom to be mailed to the district court. (Doc. 1-1) Under the mailbox rule, the date plaintiff
delivered his complaint to the prison mail room constitutes the date he filed his complaint. See Richard v. Ray, 290 F.3d

alleging violations under 42 U.S.C. 1983; the Americans with Disabilities Act (ADA) of 1990, 42
U.S.C. §§ 12101 et seq; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a); §§ 504
and 704(a) of the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq; 42 U.S.C. §§ 1981(a) and
“1981 2(b)(3).” Plaintiff also alleged that defendants violated his rights under Article I §§ 8, 13, 16
and 32 of the Tennessee Constitution, as well as Tenn. Code Ann. §§ 4-3-603 and 606.
The Magistrate Judge entered a R&R on June 9, 2015 (“previous R&R”) recommending that
all federal law claims be dismissed against all defendants, and that the court decline to exercise its
supplemental jurisdiction over plaintiff’s state law claims. (Doc. 145) The Magistrate Judge
incorporates the introduction and background section of the previous R&R herein by reference.
On December 31, 2015, the District Judge accepted the previous R&R in part and rejected
it in part. (Doc. 192) The District Judge rejected the recommendation that the claims under 42
U.S.C. § 1983 and state law against Dr. Coble, NP Martin, and Nurse Orton be dismissed. (Doc.
192) The District Judge accepted “the recommendation that all claims against the remaining
defendants and all claims under the ADA, Title VII, the RA, 42 U.S.C. § 1981 and the Fourteenth
Amendment be dismissed sua sponte under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim
for which relief may be granted.” (Doc. 192)
On May 26, 2016, Dr. Coble and Nurse Orton filed a joint motion for summary judgement
(Doc. 218), memorandum of law with attachments (Docs. 219-21), and joint statement of undisputed
material facts (Doc. 222). Plaintiff filed a response in opposition to the joint motion on August 1,

810, 813 (6th Cir. 2002)(citing Houston v. Lack 487 U.S. 266, 270 (1988)(a pro se prisoner filing is deemed filed on the
date that the filing is turned over to prison officials for transmittal to the court.) Because there is no stamp to indicate
when plaintiff submitted his complaint to the SCCF mailroom, the complaint is deemed to have been filed on the date
plaintiff signed it, i.e., on April 1, 2014. (Doc. 1, p. 37) See e.g. Smith v. United States, 2014 WL 558401 * 1 (E.D.
Tenn. Feb 11, 2014)(Mattice, J).

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2016 (Doc. 258), and objections to their consolidated statement of undisputed facts (Doc. 259). Dr.
Coble and Nurse Orton filed a reply on August 15, 2016 (Doc. 268), following which plaintiff filed
a response to their reply on September 1, 2016 (Doc. 276).
NP Martin filed a motion for summary judgment on June 1, 2016 (Doc. 223), a supporting
memorandum of law (Doc. 225), her sworn declaration (Doc. 226), and a statement of undisputed
material facts (Doc. 227). Plaintiff filed a response in opposition to NP Martin’s motion for
summary judgment on August 15, 2016 (Doc. 270), and opposition to NP Martin’s statement of
undisputed material facts (Doc. 271). NP Martin filed a reply on August 29, 2016 (Doc. 274),
following which plaintiff filed a response to NP Martin’s reply on September 19, 2016 (Doc. 282).
This matter is now properly before the court.
II. STANDARD OF REVIEW
A. Summary Judgment
Summary Judgment is appropriate only where “there is no genuine issue as to any material
fact and the movant is entitled to summary judgment as a matter of law.” Rule 56(a), Fed. R. Civ.
P.; see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Gillis v. Miller, 845 F.3d 677, 683
(6th Cir. 2017). A genuine issue of material fact exists “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986); Williams v. AT&T Mobility Services LLC, 847 F.3d 384, 387 (6th Cir. 2017). The moving
party has the burden of showing the absence of genuine factual disputes from which a reasonable
jury could return a verdict for the non-moving party. Anderson, 477 U.S. at 249-50; Stiles ex. Rel.
D.S. v. Grainger County, Tenn., 819 F.3d 834, 847 (6th Cir. 2016). Inferences from underlying facts
“must be viewed in the light most favorable to the party opposing the motion.” See Matsushita Elec.

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Indus. Co. v. Zenith Radio Corp., Ltd., 475 U.S. 574, 587 (1986); Rogers v. O’Donnell, 737 F.3d
1026, 1030 (6th Cir. 2013).
In considering whether summary judgment is appropriate, the court must “look beyond the
pleadings and assess the proof to determine whether there is a genuine need for trial.” Sowards v.
Loudon County, 203 F.3d 426, 431 (6th Cir.), cert. denied, 531 U.S. 875 (2000). If there is a genuine
issue of material fact, then summary judgment should be denied. Sowards, 203 F.3d at 431.
However, “[t]he moving party need not support its motion with evidence; instead, it only must point
out the deficiencies in the nonmoving party’s case.” Max Arnold & Sons, LLC v. W.L. Hailey & Co.,
Inc., 452 F.3d 494, 507 (6th Cir. 2006)(citing Celotex Corp., 477 U.S. at 324-25).
“Once the moving party has presented evidence sufficient to support a motion for summary
judgment, the nonmoving party is not entitled to trial merely on the basis of allegations; significant
probative evidence must be presented to support the complaint.” Jones v. City of Franklin, et al.,
__ Fed.Appx. __, 2017 WL 383383 * 2 (6th Cir. 2017)(citing Goins v. Clorox Co., 926 F.2d 559, 561
(6th Cir. 1991)). “[T]o withstand a properly supported motion for summary judgment, plaintiff must
do more than rely merely on the allegations of h[is] pleadings or identify a ‘metaphysical doubt’ of
hypothetical ‘plausibility’ based on a lack of evidence; [h]e is obliged to come forward with
‘specific facts,’ based on ‘discovery and disclosure materials on file, and any affidavits,’ showing
that there is a genuine issue for trial.” Rule 56(c), Fed. R. Civ. P.; Chappell v. City of Cleveland,
585 F.3d 901, 912 (6th Cir. 2009)(citing Matsushita Elec. Indus. Co., Ltd., 475 U.S. at 586-87).
Conclusory allegations, speculation, and unsubstantiated assertions are not evidence, and are not
sufficient to defeat a well-supported motion for summary judgment. Jones, __ Fed.Appx. __, 2017
WL 383383 * 2 (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990)). In other words, to

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defeat summary judgment, the party opposing the motion must present affirmative evidence to
support his or her position; a mere scintilla of evidence is insufficient. See Brown v. Battle Creek
Police Department, 844 F.3d 556, 565 (6th Cir. 2016); Bell v. Ohio State University, 351 F.3d 240,
247 (6th Cir. 2003)(citing Anderson, 477 U.S. at 252).
B. 42 U.S.C. § 1983
To state a claim under § 1983, plaintiff must allege and show: 1) that he was deprived of a
right secured by the Constitution or laws of the United States; and 2) that the deprivation was caused
by a person acting under color of state law. Wershe v. Combs, 763 F.3d 500, 504-05 (6th Cir. 2014)
(citing Flanory v. Bonn, 604 F.3d 249, 253 (6th Cir. 2010)). Plaintiff also “must establish that the
defendant acted knowingly or intentionally to violate his . . . constitutional rights . . . mere
negligence or recklessness is insufficient.” Rainey v. Patton, 534 Fed.Appx. 391, 393 (6th Cir.
2013)(quoting Ahlers v. Schebil, 188 F.3d 365, 373 (6th Cir. 1999)(citing Harlow v. Fitzgerald, 457
U.S. 800, 815-19 (1982)).
C. ANALYSIS
1. Dr. Coble’s Motion for Summary Judgment
The complaint alleges that Dr. Coble was deliberately indifferent to plaintiff’s serious
medical needs in violation of his rights under the Eighth Amendment.2 Plaintiff alleges specifically

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The Magistrate Judge notes for the record that plaintiff makes the following statements in his objection to
Dr. Coble’s motion for summary judgment:
Defendant’s have known of the[] constitutional violations [alleged in the complaint]
and have continued to operate under these . . . policies, customs and practices since
1993. . . . Plaintiff . . . has illustrated that this practice has continued long before
Plaintiff’s cancer was discovered [at a minimum] for twenty two years, and the
defendant[]s have refused to correct these practices. . . .
Plaintiff has illustrated . . . the defendants conscious and knowingly acquiesced of
the unconstitutional conduct at SCCF’s medical dept. since 1994 when defendant

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that Dr. Coble: 1) acted knowingly, deliberately, capriciously, and arbitrarily with the intent to cause
pain and suffering (Doc. 1, p. 23); 2) substituted Lortab instead of time released morphine prescribed
by oncologist Dr. Michael Sattasiri, M.D. (Doc. 1, pp. 11, 22-23); 3) reduced plaintiff’s pain
medication after he was examined by Dr. f/n/u Conway without examining plaintiff himself (Doc.
1, pp. 15, 34); 4) discontinued plaintiff’s “Flavored Ensures” without examining plaintiff, having
been deliberately misinformed by other members of the SCCF medical staff that plaintiff was able
to eat (Doc. 1, pp. 13, 16, 22-23, 33, 35); 5) refused to treat plaintiff’s weight and muscle loss (Doc.
1, p. 13); 6) refused to check plaintiff’s weight (Doc. 1, p. 23); 7) denied plaintiff access to a scale
to show that he had regained only 7 lbs. of the 67 lbs. he claims to have lost during and after
treatment (Doc. 1, p. 33); 8); refused to assist plaintiff with problems arising from his cancer
treatment during recovery (Doc. 1, pp. 16, 34).
Dr. Coble argues in his motion for summary judgment that: 1) plaintiff was not denied
adequate medical care; 2) plaintiff cannot establish that he was deliberately indifferent to plaintiff’s
serious medical needs; 3) the alleged acts and omissions attributable to Dr. Coble prior to April 1,
2013 are barred by the one-year statute of limitations. Dr. Coble also argues that plaintiff’s state law
claims should be dismissed with prejudice for failure to comply with state law. (Doc. 219, ¶¶ I.B-C,
III, pp. 8-15, 17-18)
“[A] prisoner’s Eighth Amendment right is violated when prison doctors or officials are
deliberately indifferent to the prisoner’s serious medical needs.” Quigley v. Tuong Vinh Thai, 707

Coble was ‘under contract’, has repeatedly defended claims of his denial of medical
care in the interest of profit. . . .
(Doc. 258, pp. 5-6 of 24)(Unnecessary bold and italics omitted here as well as in all further quotes attributable to
plaintiff. Internal footnote omitted.) The alleged “policies, customs and practices since 1993” are not before the court.

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F.3d 675, 681 (6th Cir. 2013)(quoting Comstock v. McCrary, 273 F.3d 693, 702 (6th Cir.2001)(citing
Estelle v. Gamble, 429 U.S. 97, 104 (1976)). An Eighth Amendment claim for the denial of medical
care has an objective and subjective component. Quigley, 707 F.3d at 681 (citing Comstock, 273
F.3d at 702). Satisfying the objective component establishes that the alleged deprivation was
sufficiently severe, while satisfying the subjective component establishes that the defendant prison
officials acted with a sufficiently culpable state of mind. Quigley, 707 F.3d at 681 (citing Comstock,
273 F.3d at 702)).
Notwithstanding the foregoing, complaints of malpractice or allegations of negligence are
insufficient to entitle plaintiff to relief under § 1983. Estelle, 429 U.S. at 105-06. A prisoner’s
difference of opinion regarding treatment also does not rise to the level of an Eighth Amendment
violation. Estelle, 429 U.S. at 107. Finally, where a prisoner has received some medical attention,
but disputes the adequacy of that treatment, the federal courts are reluctant to second-guess prison
officials’ medical judgments and constitutionalize claims which sound in state tort law. Graham
ex rel Estate of Graham v. County of Washtenaw, 358 F.3d 377, 385 (6th Cir. 2004)(citing Westlake
v. Lucas, 537 F.2d 857, 860 n. 5 (6th Cir. 1976)). In such cases, the medical treatment must be so
“woefully inadequate as to amount to no treatment at all” to give rise to an actionable claim under
§ 1983. Alspaugh v. McConnell, 643 F.3d 162, 169 (6th Cir. 2011)(citing Westlake, 537 F.2d at 860
n. 5).
Dr. Coble addresses plaintiff’s Eighth Amendment claim at length in his memorandum of
law in support of his motion for summary Judgment. (Doc. 219, ¶¶ I.B, B-2, C, pp. 8-15) Dr. Coble
asserts in his sworn declaration dated May 24, 2016 that he took, or caused to be taken, the actions
shown below in Fig. 1 with respect to the treatment of plaintiff’s cancer.

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Date

Action

Reference

04/30/13

Nurse Martin first refers plaintiff to Dr. Coble for “knot ® side of Doc. 219-5, p.
neck . . . 2-3 cm size mass.”
11 of 156

05/03/13

Dr. Coble first examined plaintiff and referred him to an Ear, Doc. 219-5, pp.
Nose, and Throat (ENT) specialist and to have a CT scan. (Doc. 12, 99 of 156
219-1, ¶ 8, p. 1)

05/07/13

Plaintiff was transported Wayne County Medical Center for a CT Docs. 219-5, pp.
Scan of the neck on referral from Dr. Coble. (Doc. 219-1, ¶ 10, 2, 12, 99 of 156;
p. 2)
221, p. 21 of
261

05/14/133

Plaintiff is evaluated by ENT Dr. Stephen Parey, M.D., on referral
from Dr. Coble. (Doc. 219-1, ¶ 11, p. 2)

Docs. 219-5, pp.
12, 99 of 156;
221, pp. 22-25
of 261

05/30/13

Plaintiff is examined by oncologist Dr. Mark Messenger, M.D.,
on referral by Dr. Coble. (Doc. 219-1, ¶ 12, p. 2)

Docs. 219-5, p.
99 of 156; 221
p. 12-13 of 261

06/17/13

Plaintiff is examined by radiation oncologist Dr. Joel Kochanski,
M.D., at the Maury Regional Medical Center Cancer Center on
referral from Dr. Messenger. Dr. Kochanski recommended
treating plaintiff with a combination of chemotherapy and
radiation, but requested an additional PET/CT scan and dental
evaluation. (Doc. 219-1, ¶¶ 13-15, p. 2)

Docs. 219-5, p.
100 of 156; 221,
pp. 31-34, 49-53
of 261

07/08/13

Plaintiff receives PET/CT scan requested by Dr. Kochanski. Docs. 219-5, p.
(Doc. 219-1, ¶ 15, p. 2)
2, 102 of 156;
221, pp. 26-29,
36-37 of 261

07/17/13

Plaintiff is seen by Dr. Messenger on referral from Dr. Coble, and Docs. 219-5, pp.
scheduled plaintiff to begin chemotherapy in August 2013. (Doc. 16, 102 of 156;
219-1, ¶ 18, p. 2)
221, p. 39 of
261

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There are minor inconsistencies – 1 to 2 days – between some of the dates in Dr. Coble’s sworn declaration
and the dates in plaintiff’s medical records. The dates in plaintiff’s medical records are used in Fig. 1 above.

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Date

Action

Reference

08/13
thru
09/13

Plaintiff is transferred to and from chemotherapy and radiation Docs. 219-5, pp.
treatment at the Maury Regional Medical Center throughout this 16-32, 106-113
period. (Doc. 219-1, ¶ 19, p. 2)
of 156; 221, pp.
14-20, 46-48,
54-67 of 261

09/04/14

Dr. Coble orders a PEG (percutaneous endoscopic gastrostomy) Docs. 1, ¶ 24, p.
tube4 inserted to allow for rapid nutritional input if necessary after 12; 219-5, p.
plaintiff began to lose weight. (Doc. 219-1, ¶ 23, p. 2) The PEG 109 of 156
tube was implanted on September 16, 2013

12/06/13

Dr. Coble Orders the PEG tube removed after plaintiff began to Docs. 1, ¶ 35, p.
gain weight. (Doc. 219-1, ¶ 23, p. 2) The PEG tube was removed 12; 221-5, p.
on January 3, 2014.
116 of 156

02/25/14

Physical examination, CT, and PET scans reveal plaintiff’s cancer Doc. 221, pp.
had been resolved. (Doc. 219-1, ¶ 24, pp. 2-3)
104-108 of 261

10/15/14

A subsequent CT scan ordered by Dr. Coble showed no
significant abnormalities. (Doc. 219-1, ¶ 25, p. 3)

03/03/15

Dr. Parey reported to Dr. Coble that there was “no evidence of Doc. 221, p. 124
disease” and that the “[m]alignant neoplasm metastis to the of 261.
cervical lymph nodes [was] resolved.” (Doc. 219-1. ¶ 26, p. 3)

Doc. 221, pp.
109-110

Fig. 1
Dr. Coble’s Principle Documented Actions in
Treating Plaintiff’s Cancer
Dr. Coble also makes the following summary arguments in support of his sworn declaration:
During Tankesly’s stay at SCCF, I treated Tankesly’s cancer by
providing and/or ordering him numerous treatments and/or
medications including, but not limited to: [E]nsures; [B]oosts; pain
medication, including Lortab; other medications; referrals to other
providers; and a PEG tube placement. (See generally Pltf.’s Med.
Rec., Bates Stamp No. 8-56, 98-136, 169-236.)[5]

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A PEG tube is used to provide a means of feeding a patient when oral intake is not adequate.
Http://my.clevelandclinic.org/health/articles/percutaneous-endoscopic-gastrostomy-peg.
5

The Bates Stamp numbers referred to above appear in red ink at the top of the pages of the medical records
accompanying Dr. Coble’s motion for summary judgment.

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From the first time I saw Tankesly regarding his swollen neck
through the date he was transferred from SCCF, I entered, approved,
or reviewed over 60 orders related to Tankesly’s cancer treatment via
telephone, voice, or hand written notes. (Pltf.’s Med. Rec., Bates
Stamp No. 99-100, 102, 104, 106, 108-126, 129-136.)
These orders included but were not limited to: orders referring him
to outside providers (Pltf.’s Med. Rec. Bates Stamp No. 99), orders
for CT scans (Id.), transport orders (Id.), orders for pain medication
like Lortab (Id., at 100, 109, 114, 117, 119), [E]nsure orders (Id. at
100, 116), orders for phenegran (Id. Bates Stamp No. 108), orders for
feeding tube placements (Id. at 109), miracle mouth wash orders (Id.
at 116.), orders for PET and CT scans (Id. at 120), and [B]oost
orders, (Id at 134).
(Doc. 219-1, ¶¶ 28-30, p. 3) Dr. Coble repeats the foregoing in his statement of undisputed material
facts. (Doc. 222, ¶¶ 7-8, 10-13, 15, 17-19, 24, 26, pp. 4-8, 10)
The medical records before the court show that Dr. Coble did, in fact, either take the specific
medical actions referenced in Fig. 1 above after plaintiff was referred to him by the SCCF medical
staff, or that the events described in Fig. 1 were directly attributable to actions that Dr. Coble took.
A page-by-page review of the references to plaintiff’s medical records (Pltf.’s Med. Rec.) made in
the summary arguments above shows that Dr. Coble was, in fact, actively engaged in plaintiff’s
treatment after he first examined plaintiff on May 5, 2013. This page-by-page review also reveals
that Dr. Coble made the first of several referrals to outside medical specialists immediately after he
first examined plaintiff, he did not delay or prevent treatment provided by those outside medical
specialists, he referred plaintiff to additional specialized treatment or tests recommended by those
outside medical specialists, he provided plaintiff with continuing medical care at SCCF between his
outside treatments, and he continued to provide related medical care during plaintiff’s recovery. In
short, the actions shown in Fig. 1, and the references to “Pltf.’s Med. Rec.” above do not support
plaintiff’s overarching argument that Dr. Coble acted knowingly, deliberately, capriciously, and
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arbitrarily with the intent to cause pain and suffering.
Turning to plaintiff’s remaining specific claims enumerated above at p. 6, plaintiff alleges
that Dr. Coble violated his Eighth Amendment rights by substituting Lortab6 for “time released
morphine” prescribed by Dr. Sattasiri, and that Dr. Coble reduced the Lortab dosage three days after
he had Dr. f/n/u Conway “from a state prison” examine him in the March 2014 time frame.7 At
most, plaintiff’s allegations amount to a disagreement with Dr. Coble’s decision to substitute one
approved medication to treat cancer pain for another, and to manage the dosage of that medication
during the course of plaintiff’s treatment and recovery. As previously established above at p. 7,
plaintiff’s disagreement with Dr. Coble’s treatment does not give rise to an Eighth Amendment
violation. Dr. Coble’s alleged failure to examine plaintiff before reducing the Lortab dosage three
days after plaintiff was examined by another physician may amount to negligence, perhaps even
malpractice. However, as noted above at p. 7, neither negligence nor malpractice are actionable
under § 1983.
Plaintiff alleges next that Dr. Coble discontinued his Ensures in early April 20148 based on
misinformation provided to him deliberately by other members of the SCCF medical staff,9 and that
Dr. Coble discontinued his Ensures without first examining him personally. As noted above at p.
6

Lortab is an opiod commonly used to treat moderate to severe pain in cancer patients.
Https://www.cancer.org/treatment/treatments-and-side-effects/physical-side-effects/pain/opiod-pain-medicines-forcancer.
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Plaintiff asserts that Dr. Coble initially prescribed one 5. Mg. Lortab twice a day, raising the dosage to 7.5
mg twice a day, and finally increasing the dosage to two 7.5 mg twice a day. (Doc. 1, ¶ D, p. 22) On March 10, 2014,
Dr. Coble reduced the Lortab to 7.5 mg once a day. (Doc. 1, ¶ D, p. 23)
8

This date is derived from plaintiff’s statement that Dr. Coble stopped his Ensures “[t]wo (2) weeks” after Dr.
Conway examined him on March 20, 2014. (Doc. 1, pp. 15-16)
9

Plaintiff asserts that this deliberate misinformation “left [him] with zero nutritional intake for twenty five (25)
to thirty (30) days straight, multiple times.” (Doc. 1, ¶¶ 43-44, p. 13)

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5, plaintiff must show that Dr. Coble acted knowingly or intentionally to make a showing under §
1983. Because Dr. Coble acted on misinformation allegedly provided to him by other members of
the SCCF medical staff, he did not act knowingly or intentionally. Consequently, plaintiff is not
entitled to relief under § 1983 for those actions. As to Dr. Coble’s decision to discontinue plaintiff’s
Ensures without personally examining him first, Dr. Coble’s decision so close on the heels of Dr.
Conway’s examination once again may amount to negligence, perhaps even malpractice. Again,
however, neither negligence nor malpractice is actionable under § 1983.
Plaintiff asserts next that Dr. Coble refused to treat his weight loss, alleging first that Dr.
Coble denied him proper nutrition when he discontinued plaintiff’s Ensure. As previously discussed
above, plaintiff avers that Dr. Coble’s decisions to reduce or discontinue his Ensures were based on
deliberate misinformation allegedly provided to him by other members of the SCCF medical staff.
Again, plaintiff is not entitled to relief under § 1983 if Dr. Coble did not act knowingly. Plaintiff
also argues that Dr. Coble would not weigh him, nor would he provide plaintiff access to a scale so
that he could check his weight. Dr. Coble does not have a constitutional obligation to weigh
plaintiff on demand for the purpose of demonstrating that, having lost 67 lbs., plaintiff’s weight gain
was minimal, nor does plaintiff have a constitutional right to have access to a scale to weigh himself.
In any event, plaintiff fails to allege that Dr. Coble’s alleged refusal caused him any injury. As to
Dr. Coble’s affirmative actions with respect to plaintiff’s weight, the record shows that he and Ms.
Wendy Ashe, the Health Administrator at SCCF, arranged for plaintiff to receive a liquid diet during
his recovery. (Doc. 1, ¶ 40, p. 12) Although plaintiff asserts that he did not always receive these
meals, he does not allege that Dr. Coble prevented him from receiving them. Finally, the record
shows that Dr. Coble ordered a PET tube implanted because of plaintiff’s weight loss, and ordered

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it to be removed when plaintiff began to gain weight. In sum, plaintiff’s claim that Dr. Coble
refused to treat his weight loss is not supported by the record.
Finally, plaintiff claims that Dr. Coble refused to assist him for problems arising during his
recovery. (Doc. 1, ¶ 19, p. 16) As shown in the paragraph above, Dr. Coble ordered a liquid diet
for plaintiff during his recovery, and ordered that a PET tube be installed during his recovery. As
shown above at Fig. 1, and in the references to the “Pltf.’s Med. Rec.” in the summary arguments
at pp. 9-10, Dr. Coble also took several actions involving outside medical sources during the period
of plaintiff’s after care. In short, the record before the court does not support plaintiff’s allegation
that Dr. Coble refused to assist him during the course of his recovery.
As shown above, plaintiff either disagrees with the care Dr. Coble provided, or challenges
the adequacy of that care. The case before the court also is not one where Dr. Coble’s care was so
woefully inadequate as to amount to no care or treatment at all. Accordingly, Dr. Coble’s motion
for summary judgment should be granted, plaintiff’s federal claims against him dismissed with
prejudice, and plaintiff’s state law claims dismissed without prejudice as to any relief plaintiff might
be entitled in state court.
2. Nurse Practitioner Martin’s Motion for Summary Judgment
NP Martin makes several arguments in support of her motion for summary judgment,
including the argument that plaintiff’s claims are time barred because they were filed beyond the
one-year statute of limitations. (Doc. 225, ¶ A, pp. 7-9) NP Martin’s statute-of-limitations argument
is dispositive; therefore, the other arguments need not be addressed.
Congress did not establish a limitations period applicable to § 1983 actions. Instead, the
federal courts apply the state personal injury statute of limitations. See Owens v. Okure, 488 U.S.

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235, 249-250 (1989); Wilson v. Garcia, 471 U.S. 261, 280 (1985)(superseded by statute on other
grounds as recognized in Jones v. R.R. Donnelley & Sons, Co., 541 U.S. 369, 379-380 (2004));
Wolfe v. Perry, 412 F.3d 707, 713-714 (6th Cir. 2005); Roberson v. Tennessee, 399 F.3d 792, 794
(6th Cir. 2005). The statute of limitations for personal injury arising in Tennessee is one year. Tenn.
Code Ann. § 28-3-104(a)(1)(A); see Roberson, 399 F.3d at 794.
Although the duration of the statute of limitations is governed by state law, federal standards
govern when the statute begins to run. See Wilson, 471 U.S. at 267; Sharpe v. Cureton, 319 F.3d
259, 266 (6th Cir. 2003); Hughes v. Vanderbilt Univ., 215 F.3d 543, 548 (6th Cir. 2000); Sevier v.
Turner, 742 F.2d 262, 272 (6th Cir.1986). The statute of limitations begins to run “when the plaintiff
knows or has reason to know of the injury which is the basis of his action.” Kelly v. Burks, 415 F.3d
558, 561 (6th Cir. 2005)(quoting Sevier, 742 F.2d at 273). “A plaintiff has reason to know of his
injury when he should have discovered it through the exercise of reasonable diligence.” Ruiz-Bueno
v. Maxim Healthcare Services, Inc., 659 Fed.Appx. 830, 834 (6th Cir. 2016)(quoting Sevier, 742
F.2d at 273). At that point, the plaintiff has a “complete and present cause of action” such that he
may “file suit and obtain relief.” Johnson v. Memphis Light Gas & Water Div., 777 F.3d 838, 843
(6th Cir. 2015)(quoting Wallace v. Kato, 549 U.S. 384, 388 (2007)). This inquiry is objective and
federal courts look “to what event should have alerted the typical lay person to protect his or her
rights.” Hughes, 215 F.3d at 548.10
10

Plaintiff did not respond to NP Martin’s statute-of-limitations argument in his response to her motion for
summary judgment. (Doc. 270) Plaintiff did not address the statute-of-limitations issue until he filed his response to
NP Martin’s reply to his objection to her motion for summary judgment, wherein he asserts: “Defendant Martin’s
argument on the Statute of Limitations has no merit. The honorable Judge Alet[]a Trauger or Magistrate Judge Joe B.
Brown would have dismissed this cause in April 2013 had Plaintiff failed to comply with the statute of limitations.”
(Doc. 282, ¶ A, p. 1 of 8) Beyond that, plaintiff avers only that the statute of limitations did not begin to run until April
30, 2013, and that he “clearly filed this cause within the one year statute of limitations.” (Doc. 282, ¶ A, pp. 1-2 of 8)
Plaintiff’s response is insufficient to prevail against NP Martin’s motion for summary judgment for failure to file within
the prescribed statute of limitations. Given plaintiff’s unresponsiveness, NP Martin is entitled to summary judgment on

14

The first task in a statute-of-limitations analysis is to determine what date applies in
determining whether the statute of limitations had run prior to plaintiff filing his complaint. NP
Martin asserts in her memorandum of law that she saw plaintiff on July 16, 2012, August 16, 2012,
and January 8, 2013.11 (Doc. 225, ¶ III.A, p. 8) NP Martin also asserts in her sworn declaration that,
in addition to the foregoing dates, she also saw plaintiff on April 30, 2013.12 (Doc. 226, ¶¶ 4, 7, 13,
15, pp. 1-2, 4 of 7) NP Martin asserts in her undisputed statement material facts that the dates above
are the dates she saw plaintiff. (Doc. 227, ¶¶ 1, 4, 7, 9, 11,13, pp. 1-4 of 6)
Although plaintiff objects to NP Martin’s statement of undisputed facts in legalistic terms
(Doc. 271), he does not dispute the actual dates on which NP Martin claims to have seen him, i.e.,
July 16, 2012, August 16, 2012, and January 8, 2013 (Doc. 227, ¶¶ 1, 4, 7, 9, 11, pp. 1-4 of 6).
Plaintiff’s failure to challenge these dates means that he does not dispute the dates themselves for
purposes of summary judgment. LR56.01, Local Rules of Court. The next question is which of
these three dates, if any, establishes the date that plaintiff knew, or should have known, that he had
a cause of action against NP Martin.
Plaintiff asserts in his objections to NP Martin’s statement of undisputed material facts that
NP Martin “documented [his] Cancer as early as December 27, 2011.” (Doc. 271, p. 2) Plaintiff

these grounds without further ado. Nevertheless, the Magistrate Judge will analyze NP Martin’s statute-of-limitations
argument for the sake of completeness.
11

NP Martin noted the following in her July 16, 2012 clinical note: CBC (complete blood count) with “diff”
(differential), return to clinic in one month for followup for “lymphadenopathy” (disease of the lymph nodes),
“submental” (inferior to the chin) on the right side, administration of multiple medications. (Doc.43-5, p. 22 of 40)
Presented for back pain. NP Martin noted the following in her August 16, 2012 clinical note: CBC normal, right
“submental lymph node palpable – size of pea,” “palpable lymph node.” (Doc. 43-5, p. 26 of 40) NP Martin noted the
following in her January 8, 2013 clinical note: administration of multiple medications, including medications for
hemorrhoids. (Doc. 3-5, p. 21 of 40)
12

As noted in Fig. 1 above, April 30, 2013 is that date that NP Martin referred plaintiff to see Dr. Coble for
the mass in his neck. Therefore, April 30, 2013 does not figure into when the statute of limitations began to run.

15

also alleged the following in his October 16, 2013 grievance against NP Martin: “For more than 10
months Ms. Martin repeatedly told me, ‘Not to [w]orry, it (the lump) is nothing to be concerned
about’ . . . while she [r]efused to test it, [d]iagnose it and [r]efused to permit me to se[e] a doctor.”
(Doc. 2-6, p. 4 of 5) The beginning of the “10 months” to which plaintiff refers in his grievance
corresponds to mid-December 2011 which, in turn, corresponds closely to the December 27, 2011
date to which plaintiff refers in his objections to NP Martin’s statement of undisputed material facts.
It is apparent from the foregoing that plaintiff knew, or should have known, that he had a
cause of action against NP Martin at least as early as December 27, 2011. Consequently, December
27, 2011 is the date on which the one-year statute of limitations began to run. That said, the
Magistrate Judge elects to use July 16, 2012 as the date on which the one-year statute of limitations
began to run because it is closest in time of the three dates in question to the beginning of the tenmonth period described above, because it may have taken additional time for plaintiff to conclude
that NP Martin’s alleged acts and omissions amounted to deliberate indifference, and because July
16, 2012 is more advantageous – by 7 ½ months (228 days) – to plaintiff in the following analysis
than December 27, 2011. The Magistrate Judge also selects the July 16, 2012 date because, in his
objection to Nurse Orton’s statement of undisputed material facts, plaintiff states unambiguously
that “Gate Keepers Martin and Orton prohibited [him] from seeing Dr. Coble for 304 days (10
months) until May 2013 for testing.13” (Doc. 259, ¶ 8, p. 6) Backing off 304 days from May 3,

13

The Magistrate Judge looked to plaintiff’s December 15, 2013 grievance against Nurse Orton in an effort
to zero in on the start date, but without luck. (Doc. 2-9) The grievance does not pertain to the claims that the complaint
alleges; it grievance merely accuses Nurse Orton of disrespect, contempt, lack of compassion, and failure to follow
protocol in the distribution of medications on December 13 and 15, 2013, and the three months preceding those dates.
(Doc. 2-9, p. 4 of 9) Although the complaint against Nurse Orton appears to be subject to dismissal for failure to
exhaust, failure to exhaust is an affirmative defense, and Nurse Orton does not argue that plaintiff’s claims against her
are subject to dismissal for failure to exhaust.

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2013, the first time Dr. Coble saw plaintiff, yields July 3, 2012 which, in turn, corresponds favorably
with the date of July 16, 2012.
With July 16, 2012 as the date on which the one-year statute of limitations began, the statute
of limitations would have run one year later on July 16, 2013. As established above at pp. 1-2 n. 1,
plaintiff did not file his complaint against her until April 1, 2014. Therefore, with July 16, 2012 as
the start date, plaintiff filed his complaint approximately 8 ½ months (259 days) beyond the statute
of limitations in a strictly chronological sense.
As explained above, NP Martin’s argument that plaintiff filed his complaint against her after
the one-year statute of limitations had run is correct as far as it goes. However, she does not address
the various tolling exceptions to the statute of limitations. Neither does plaintiff. Therefore, the
Magistrate Judge provides the tolling analysis below pursuant to the authority under 28 U.S.C. §
1915(e)(2).
The statute of limitations in § 1983 actions is tolled while prisoners exhaust their
administrative remedies. Brown v. Morgan, 209 F.3d 595, 596-97 (6th Cir. 2000). Plaintiff has
attached a copy of a grievances to his complaint that he filed against NP Martin on October 16, 2013
alleging that NP Martin had been deliberately indifferent to his serious medical needs. (Doc. 2-6)
The grievance board’s response was unfavorable, and plaintiff appealed at every level. (Doc. 2-6,
pp. 2-3 of 5) On December 19, 2013, the Deputy Commissioner of Operations for the Tennessee
Department of Corrections concurred in the decision below, and the Deputy Commissioner’s
decision was received back at SCCF on December 23, 2013. (Doc. 2-6, p. 1 of 5)
As shown above, plaintiff began to pursue his administrative remedies against NP Martin
on October 16, 2013 – three months (92 days) after the one year statute of limitations ran on July

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16, 2013. Consequently, the grievance plaintiff filed against NP Martin had no tolling effect on the
statute of limitations. Even giving plaintiff credit for the first of the seven grievances that he filed
in connection with this case beginning on August 2, 2013, i.e., grievance # 19758 against Dr. Jose
Garriga, M.D., CCA Director of Health Services filed on August 2, 2013 (Doc. 2-3), using the July
16, 2012 start date, plaintiff filed that first grievance 17 days after the statute of limitations had run.
Consequently, none of the seven grievances filed by plaintiff, either individually or collectively,
tolled the statute of limitations.
The doctrine of equitable tolling also applies to civil rights actions. See e.g., Brown v.
Cuyahoga County, Ohio, 517 Fed.Appx. 431, 434-35 (6th Cir. 2013). The period of time when
plaintiff underwent chemotherapy and radiation, and his recovery period thereafter, are obvious
candidates for equitable tolling.
The record shows that plaintiff underwent chemotherapy and radiation from August 6
through September 23, 2013. (Docs. 1, ¶ 23, p. 10; 270, p. 3) As shown above at Fig. 1, p. 9,
plaintiff’s cancer was deemed to “resolved” on February 25, 2014. The Magistrate Judge assumes
without deciding that, all things considered equal, the statute of limitations would have been
equitably tolled the entire time from August 6, 2013 to February 25, 2014 during plaintiff’s
chemotherapy and radiation treatment, and recovery thereafter. However, because the one-year
statute of limitations already had run on July 16, 2013, and because equitable tolling period would
not have begun until August 6, 2013, i.e., 21 days later, plaintiff’s chemotherapy and radiation
treatment, and recovery had no tolling effect on the statute of limitations.
As explained above, plaintiff did not file his complaint against NP Martin within the oneyear statute of limitations required for § 1983 actions. Consequently, NP Martin’s motion for

18

summary judgment should be granted as a matter of law, plaintiff’s federal claims against her should
be dismissed with prejudice, and plaintiff’s state law claims should be dismissed without prejudice
to whatever relief plaintiff might be entitled in state court.
3. Nurse Karen Orton’s Motion for Summary Judgment
Nurse Orton makes several arguments in support of her motion for summary judgment,
including that plaintiff’s claims are time barred because they were filed beyond the one-year statute
of limitations. (Doc. 225, ¶ A, pp. 7-9) As shown below, Nurse Orton’s statute-of-limitations
argument is dispositive.
Once again, the first task is to determine when the one year statute of limitations began to
run. The complaint alleges generally that Nurse Orton ignored him between July 2012 and May
2013. (Doc. 1, ¶ 2, p. 8) Plaintiff also asserts generally that Nurse Orton “had . . . s[een] [him]
many times between July 2012 and April 2013 and repeatedly refused to order testing on the
suspicious mass, until after cancer had developed . . . .” (Doc. 259, ¶ 35, p. 18) On the other hand,
plaintiff notes specifically in his objection to Nurse Orton’s declaration and statement of undisputed
material facts that Nurse Orton prohibited from him from seeing Dr. Coble for “304 days” prior to
May 3, 2013 when Dr. Coble first examined him. (Doc. 259, ¶ 8, p. 6) This unambiguous 304-day
reference pinpoints the start date of the statute of limitations as to Nurse Orton as July 3, 2012.14
Based on the information provided by plaintiff in the pleadings, the one-year statute of

14

The Magistrate Judge looked to plaintiff’s December 15, 2013 grievance against Nurse Orton in an effort
to zero in on the start date, but without luck. (Doc. 2-9) The grievance does not pertain to the claims that the complaint
alleges; it grievance merely accuses Nurse Orton of disrespect, contempt, lack of compassion, and failure to follow
protocol in the distribution of medications on December 13 and 15, 2013, and during the three months preceding those
dates. (Doc. 2-9, p. 4 of 9) Although the complaint against Nurse Orton appears to be subject to dismissal for failure
to exhaust, failure to exhaust is an affirmative defense, and Nurse Orton does not argue that plaintiff’s claims against
her are subject to dismissal on those grounds.

19

limitations as to Nurse Orton would have run on July 3, 2013. As previously established, plaintiff
did not file his complaint until April 1, 2014. Therefore, unless otherwise tolled, plaintiff filed his
complaint as to Nurse Orton nearly 9 months (272 days) after the statute of limitations had run. For
the reasons explained above at pp. 18-19, the statute of limitations would not have been tolled while
plaintiff pursued his administrative remedies or during his treatment and recovery because the time
frame for both of those events occurred after the statute of limitations already had run.
As explained above, plaintiff did not file his complaint against Nurse Orton within the oneyear statute of limitations required for § 1983 actions. Consequently, Nurse Orton’s motion for
summary judgment should be granted as a matter of law, plaintiff’s federal claims against her should
be dismissed with prejudice, and plaintiff’s state law claims should be dismissed without prejudice
to whatever relief plaintiff might be entitled in state court.
III. CONCLUSION
AND
RECOMMENDATIONS
For the reasons explained above, the Magistrate Judge RECOMMENDS that: 1) the motions
for summary judgment filed by Dr. Coble, NP Martin, and Nurse Orton (Docs. 218, 223) be
GRANTED; 2) all federal law claims against Dr. Coble, NP Martin, and Nurse Orton be
DISMISSED WITH PREJUDICE; 3) the district court DECLINE TO EXERCISE
SUPPLEMENTAL JURISDICTION over plaintiff’s state law claims against Dr. Coble, NP
Martin and Nurse Orton; 4) plaintiff’s state law claims be DISMISSED WITHOUT PREJUDICE
to whatever relief plaintiff may be entitled in state court; 5) acceptance and adoption of this R&R
constitute the FINAL JUDGMENT in this action; 6) any appeal NOT BE CERTIFIED as taken
in good faith pursuant to 28 U.S.C. § 1915(a)(3).
ENTERED this the 2nd day of March 2017.
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s/ Joe B. Brown
Joe B. Brown
United States Magistrate Judge

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