Tankesly v. Corrections Corporation of America et al

Filing 309

MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 7/18/2017. (xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
CALVIN TANKESLY, JR.,
Plaintiff,
v.
CORRECTIONS CORPORATION OF
AMERICA, et al.,
Defendants

)
)
)
)
)
)
)
)
)
)

Case No. 3:14-cv-0911
Judge Aleta A. Trauger

MEMORANDUM
At issue are plaintiff Calvin Tankesly, Jr.’s claims under 42 U.S.C. § 1983 and state law
against defendants Dr. Robert Coble, Nurse Karen Orton, and Nurse Practitioner Susan Martin,
based on their allegedly deliberate indifference to the plaintiff’s serious medical needs. Now
before the court are the plaintiff’s Objections (Doc. No. 297) to the magistrate judge’s Report
and Recommendation (“R&R”) (Doc. No. 284), recommending that the defendants’ Motions for
Summary Judgment (Doc. Nos. 218 (filed jointly by Coble and Orton), 223 (filed by Martin)) be
granted, that all of the plaintiff’s claims under federal law be dismissed with prejudice and that
his state law claims be dismissed without prejudice. The defendants have filed Responses to the
Objections (Doc. Nos. 304, 305), and the plaintiff filed Replies to both (Doc. Nos. 306, 307).
When a party files objections to a magistrate judge’s report and recommendation
regarding a dispositive motion, the district court must review de novo any portion of the report
and recommendation to which objections are properly lodged. Fed. R. Civ. P. 72(b)(3); 28
U.S.C. § 636(b)(1)(B) & (C). In conducting its review, the district court “may accept, reject, or
modify the recommended disposition; receive further evidence; or return the matter to the
magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3).

2
The court has conducted a de novo review of the defendants’ motions and the entire
evidentiary record in light of the plaintiff’s Objections and finds that the § 1983 claims against
Martin and Coble should be dismissed on the basis that the facts viewed in the light most
favorable to the plaintiff fail to establish that either of these defendants acted with deliberate
indifference to his serious medical needs. The undisputed facts also establish that Orton did not
act with deliberate indifference to the plaintiff’s needs during the period of time leading up to his
cancer diagnosis. However, disputed issues of fact preclude summary judgment in favor of Orton
on the § 1983 claim based on her treatment of the plaintiff during his recovery from cancer.
Finally, the court rejects the magistrate judge’s recommendation that any state law claims be
dismissed without prejudice. Instead, the court will grant summary judgment in favor of the
defendants as to those claims and dismiss them with prejudice.
I.

PROCEDURAL BACKGROUND
Tankesly was a state prisoner confined at the South Central Correctional Facility (“SCCF”)

in Clifton, Tennessee during the time frame relevant to this action. SCCF was operated at the time by
Corrections Corporation of America (“CCA”). The plaintiff is currently confined at the Northwest
Correctional Complex.
Proceeding pro se and in forma pauperis, Tankesly filed the Verified Complaint in this action
on April 1, 2014, naming eleven defendants, including CCA and various CCA executives and health
care workers employed at SCCF. The Complaint asserts claims under 42 U.S.C. § 1983; the
Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12191 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)”; it also asserts that the defendants violated
the plaintiff’s rights under the Tennessee constitution and state law. In December 2015, all claims
against all defendants were dismissed, except for the § 1983 and state law claims against defendants

3
Coble, Orton, and Martin. (Doc. No. 192.)
Defendants Coble and Orton filed their joint Motion for Summary Judgment on May 26,
2016; defendant Martin filed a separate Motion for Summary Judgment on June 1, 2016. In
connection with their motions, the defendants filed a complete copy of the plaintiff’s prison medical
record along with numerous other exhibits, supporting Memoranda of Law, and Statements of
Undisputed Facts. The defendant responded by filing his “Objections” to the defendants’ motions,
Objections to their Statements of Undisputed Facts, and his own exhibits. The R&R recommending
entry of judgment in the defendants’ favor was filed on March 2, 2017. The court granted the
plaintiff’s request for an extension of the deadline for filing his Objections to the R&R. The
Objections have now been filed and fully briefed.

II.

RELEVANT FACTS
A.

Facts Related to Claims Against Nurse Practitioner Susan Martin

According to Nurse Practitioner Susan Martin, while Tankesly was incarcerated at SCCF,
he was designated as a chronic-care inmate because he suffered from a number of health
problems that required regular medical evaluation and treatment. (Martin Decl. ¶ 3, Doc. No.
226.) On July 16, 2012, Martin evaluated Tankesly in the chronic-care clinic and documented,
among other things, an enlarged lymph node on his neck, which she described as pea-sized.
(Martin Decl. ¶ 4.)
Martin knew, based on her medical training, that enlarged lymph nodes are most
commonly caused by infections, particularly viral infections such as a common cold. (Id.) Martin
observed that Tankesly was “well appearing” and that his vital signs were within normal limits,
but she ordered a complete-blood-count (“CBC”) test to rule out infection. She states that she
instructed Tankesly to return in one month for reevaluation and ordered repeat blood work in

4
five months (Martin Decl. ¶ 5; see also Med. Rec. 8, 97, 270.1)
Martin received the results from Tankesly’s CBC panel on July 25, 2012, and the results
were within normal limits. At this point, according to Martin, she did not believe or have any
reason to believe that Tankesly was suffering from any serious undiagnosed illness. (Martin
Decl. ¶ 6.)
Tankesly returned for follow-up on August 16, 2012. At that time, Martin examined his
pharynx with an otoscope and also performed a gloved-hand examination of his throat. She
determined that he still had a palpable pea-sized lymph node on his neck. (Martin Decl. ¶ 7; see
also Med. Rec. 8.) She avers that it was her belief that the best course of action at that time was
to monitor Tankesly. She alleges that she informed him of the results of the CBC and instructed
him to return as needed. (Martin Decl. ¶ 8.) At that time, she claims, she had no reason to be
concerned. (Martin Decl. ¶ 9.)
Martin states that Tankesly had blood drawn on November 21, 2012 for another CBC
panel, as Martin had ordered during his July 16, 2012 visit. This CBC panel was normal with two
minor exceptions that did not suggest cancer. (Martin Decl. ¶ 11.) Martin examined these results
on November 28, 2012 and determined that no medical intervention was necessary. (Martin
Decl. ¶ 11.) Martin did not actually see Tankesly at that time.
Tankesly underwent a chest x-ray on December 12, 2012. (Med. Rec. 9.) Martin was not
involved in the decision to send him for an x-ray. The documentation associated with the x-ray
indicates that Tankesly was experiencing a questionable cough and tired easily. (Martin Decl. ¶
12; Med. Rec. 9.) The chest x-ray was related to a tuberculosis diagnosis in 1997 and was
1

The Medical Record is comprised of Document Numbers 219-5, 220, and 221. Each
page of the record has a clear Bates number stamped at the top of the page in red. For
convenience and consistency, the court refers to the Medical Record by that pagination rather
than by document filing number or electronic page number.

5
ordered for precautionary reasons; it was not related to Tankesly’s complaint about his lymph
node. (Martin Decl. ¶ 12; Med. Rec. 9–10, 465.)
According to Martin, she next saw Tankesly on January 8, 2013 for a routine six-month
chronic-care evaluation. She maintains that, between August 16, 2012 and January 8, 2013,
Tankesly did not submit any written complaints regarding a swelling in his neck and that she did
not hear him make any verbal complaints regarding his neck. (Martin Decl. ¶ 10; see also Med.
Rec. 271, 10.) At the January 8 appointment, Martin reviewed the chest x-ray results and
determined that they were normal. (Martin Decl. ¶ 12; Med. Rec. 10.) She prescribed numerous
medications, including Prilosec, Pravastatin, Neurontin, Robaxin, and Clotrimazole, among
others. (Med. Rec. 98.) Martin’s handwritten notes in the plaintiff’s Medical Record do not
document a complaint related to the lymph node, and Martin alleges that Tankesly did not
complain to her about the swollen lymph node at that appointment. (Martin Decl. ¶ 13.)
Tankesly did not present to Martin again until April 30, 2013. Between January 8 and
April 30, 2013, Tankesly had seen other medical practitioners with complaints regarding the
swollen lymph node and other symptoms, as discussed below, but he had not seen Martin. (See
Med. Rec. 10.) On April 30, 2013, Tankesly first saw Nurse Karen Orton complaining of a knot
on the side of his neck, swelling in his cheek and jaw, and difficulty swallowing. He also
informed Orton that the knot had increased in size over the past few weeks. (Med. Rec. 11.)
Orton referred him to Martin, who saw him the same day. (Martin Decl. ¶ 16; Med. Rec. 11.)
When she saw him on April 30, 2013, Martin documented Tankesly’s complaints of
difficulty swallowing, headache, knot on the right side of his neck, and pain in his ear. Her
physical examination of Tankesly revealed a mass on his neck of two to three centimeters.
Tankesly reported the mass had been that size for approximately a year. (Med. Rec. 11.) Martin

6
noted that “prior documentation does not reveal this.” (Med. Rec. 11.) She states in her
Declaration that her medical notes of July 2012 establish that his recollection in that regard was
inaccurate, since her evaluations during the summer of 2012 indicated that the swelling was the
size of a pea. (Martin Decl. ¶ 16.) Tankesly requested to see a doctor, and Martin referred
Tankesly to Dr. Robert Coble, to be seen “ASAP per IM [inmate] request.” (Med. Rec. 11.)
Martin did not oversee Tankesly’s treatment after that time, but she did see him or help
with his needs a few more times. She states that, on June 20, 2013, she documented, likely on
behalf of Dr. Coble, that Tankesly had tonsillar cancer, needed a radiographic scan and a dentist
appointment, and was to prepare for radiation. (Martin Decl. ¶ 18.) She saw Tankesly again on
July 1, 2013 for his routine, six-month chronic-care evaluation. It appears that she did not
actually see or treat Tankesly again after that date. Shortly thereafter, Martin left the employment
of CCA and did not treat, evaluate, or interact with Tankesly again. (Martin Decl. ¶ 19.)
In his Objection to Martin’s Statement of Undisputed Facts (Doc. No. 271), Tankesly
purports to dispute nearly every one of Martin’s statements of fact, referring generally to his
response in opposition to Martin’s Motion for Summary Judgment and to his Exhibits A, B, and
F, which consist of his own Sworn Affidavit, the sworn statements of several witnesses, over 80
pages of letters written to various persons and entities dating from November 2010 through
January 2015, and photographs downloaded from the internet showing the mouth sores of people
undergoing chemotherapy/radiation therapy for mouth and throat cancer. (Doc. Nos. 258-1, 2582, 259-3.)
In objecting to Martin’s statement that she first became aware of the swollen lymph node
on July 16, 2012, Tankesly points out that Martin purportedly documented the plaintiff as having

7
cancer as early as December 27, 2011. (Doc. No. 271, at 2 (citing Med. Rec. 4–5).)2 He asserts
that this note in his Medical Record is dispositive of Martin’s knowledge that he had cancer, but
that assertion is contradicted by his claim that he did not begin complaining of swelling in his
neck until January 2012. (Doc. No. 271 ¶ 3.) Moreover, he concedes under oath that he did not
begin complaining about the swelling until around July 2012. (See Pl. Aff. ¶ 1, Doc. No. 258-1,
at 10 (“As early as July 16, 2012 maybe a few weeks earlier I started asking about a Suspicious
Mass [lump] in my neck at sick call and was seen by Susan Martin, Nurse Practitioner.”).)
Tankesly generally disputes that Martin’s decision to send him for a CBC panel
constituted standard procedure or was medically appropriate. He does not dispute that she wrote
“RTC” on the treatment note (for “return to clinic”), but states that this notation was never
shown to him and that she never actually told him to return to the clinic as needed. (Doc. No. 271
¶ 2.) He also asserts that, if Martin’s allegations were true, he “would not have proceeded with
the letters, declarations and affidavits demanding help as early as January 2012.” (Doc. No. 271
¶ 2.) He claims that, if “Martin had acted in her role as a responsible Nurse Practitioner and
order[ed] the proper test, she would have known immediately there was a reason to believe that
Plaintiff Calvin Tankesly was suffering from an illness . . . that could have Been Prevented.”
(Doc. No. 271 ¶ 6.)
In his Sworn Affidavit, Tankesly states that Martin falsely documented the lump as the

2

Page 5 of the plaintiff’s Medical Record is an unsigned Health Classification Summary,
purportedly dated 12-27-11, on which some unidentified medical practitioner noted a “Health
Related Restrictions” Code of G, which corresponded with “Cancer.” The person completing the
form also circled the “G” next to the word Cancer. There is no explanation in the record for this
assessment, and no indication that Tankesly was exhibiting symptoms or that Martin had any
reason to believe in December 2011 that Tankesly was suffering from any form of cancer.
Moreover, although Tankesly attributes the form to Martin, the form is not signed. (Med. Rec.
5.) In any event, it appears the plaintiff was not aware of this record until he conducted discovery
in this action.

8
size of a pea in August 2012 when it “was actually the size of a walnut.” ((Pl. Aff. ¶ 2, Doc. No.
258-1.) He further claims: “Without access to all the dates of my clinic visits I repeatedly asked
about the Suspicious Mass that continued to grow, between my medical visits.” (Pl. Aff. ¶ 3.)
Although he asserts, in his “Objections” to Martin’s Statement of Facts, that “Martin heard also
of Plaintiff’s concern from other nurses that Plaintiff complained to at the medication window”
(Doc. No. 271 ¶ 3), he does not point to actual evidence in the record to support that statement.
In his Affidavit, he further avers that he asked about the “Suspicious Mass” at his chronic care
visit with Martin in January 2013, but Martin told him not to worry, that it was “nothing to be
concerned about.” (Pl. Aff. ¶ 4.) He also alleges that he finally insisted that he see a doctor in
May 2013, at which time Martin relented and referred him to Dr. Coble. (Pl. Aff. ¶ 5.) He saw
Dr. Coble for the first time on May 3, 2013. (Id.)
Tankesly also filed with the court copies of letters to various individuals regarding his
health care complaints. The earliest letter in which he documents complaints related to his
swollen lymph node is dated November 3, 2012. This letter, addressed to Wendy Ashe, Health
Administrator of SCCF, states that Tankesly had a swollen gland in his neck and that he had
asked Nurse Practitioner Susan Martin about it “for nearly four months,” but she continued to
dismiss his concerns as insignificant without providing appropriate testing or access to a doctor.
(Doc. No. 258-2, at 7.) He asserted that, as a result, he was being denied medical care as
guaranteed by the Tennessee and United States constitutions. The record contains additional
letters to Ashe and others, including Donna White, TDOC Health Director, CCA CEO Damon
Hiniger [sic],3 and Lester Lewis, M.D., dating from November 2012 and continuing through
March 2013. In these letters, Tankesly continued to complain that Susan Martin was refusing to

3

The CEO of CCA (now called CoreCivic) is Damon Hininger.

9
allow him access to a medical doctor or to refer him for further testing of the swelling on his
neck. (Doc. No. 258-2, at 8–11, 13–17.)
B.

Facts Related to Claims Against Nurse Karen Orton and Dr. Robert Coble

The facts pertaining to Orton and Coble’s joint Motion are set forth in their Statement of
Undisputed Facts. (Doc. No. 222.) The plaintiff filed “Objections” to the defendants’ Statement,
objecting to nearly every fact asserted therein on the basis that they are “misplaced,” that they
pertain to treatment by outside providers who are not parties to this lawsuit, and that they are
generally not relevant to the plaintiff’s claims. (See generally Doc. No. 259.) In support of his
Objections, Tankesly refers broadly to his Exhibits A and B (Doc. Nos. 258-1, 258-2), which
include the plaintiff’s Sworn Affidavit and the plaintiff’s letters to various CCA and TDOC
authorities about his complaints.
There is no dispute that, after seeing Martin for his chronic care visit on January 8, 2013,
the plaintiff did not return to sick call until April 9, 2013. At that visit, he complained again
about the swollen lymph node on the right side of his neck and reported that he was coughing up
blood four to five times a month, that swallowing was difficult, that the lymph node was tender
when touched, and that the swollen lymph node had “been there a year.” (Med. Rec. 10.) The
chart entry for that day states “refer to MD for lymph node.” (Med. Rec. 10.) The signature in the
medical chart indicates that the plaintiff saw nurse Treasa Petty at that time, not Martin or Orton.
(Id.)
The plaintiff does not dispute the defendants’ assertion that he did not return to sick call
between January 8 and April 9, 2013, but he insists that he “registered countless complaints daily
when signing for his chronic care Medications at the Medication Window for no less than ten
months.” (Doc. No. 259 ¶ 5, Pl.’s Resp. to Coble and Orton’s Statement of Undisp. Facts.). The

10
only evidence in the record to support this assertion, as indicated above, is the plaintiff’s
allegation in his Sworn Affidavit that, “[w]ithout access to all the dates of my clinic visits I
repeated asked about the Suspicious Mass that continued to grow, between my medical visits.”
(Pl. Aff. ¶ 3.)
The chart includes an entry from April 22, 2013 that is completely illegible except for the
words “will reschedule.” (Med. Rec. 10.) According Dr. Coble, Tankesly was scheduled to see
him on that date for his complaints about the swollen lymph node. (Coble Decl. ¶ 7, Doc. No.
219-1.) Coble reviewed Tankesly’s medical chart, requested more information from nurses, and
noted that the visit should be rescheduled due to the facility’s being on lockdown. (Coble Decl. ¶
7.)
On April 24, 2013, the plaintiff presented again at the clinic and again saw Nurse Petty.
He continued to complain of pain in his right ear, neck, and jaw and difficulty swallowing. Petty
noted that the swelling to the right side of his neck was visible and that the plaintiff would be
referred to the dentist. (Med. Rec. 10.)
The plaintiff returned to the clinic on April 30, 2013. On that date he was seen by
defendant Karen Orton. (Med. Rec. 11.) Orton documented a knot on the right side of the
plaintiff’s neck with swelling in the cheek and jaw area. According to Orton’s note, the plaintiff
reported that the knot had “gotten bigger the past few weeks” and that he continued to have
difficulty swallowing. (Med. Rec. 11.) Orton referred him immediately to the nurse practitioner.
As noted above, Susan Martin also saw him the same day and referred him to Dr. Coble to be
seen “ASAP.” (Med. Rec. 11.)
Coble saw the plaintiff three days later, on May 3, 2013. Coble noted that the plaintiff
reported the development of a hard, two-centimeter nodule over the course of “a year or so,” now

11
associated with dysphagia and a twenty-pound weight loss. He ordered a referral to an Ear, Nose
and Throat specialist (“ENT”) and a CT scan. He also noted that he was “anticipating onco
[oncology] referral.” (Coble Decl. ¶ 8; Med. Rec. 12, 99.)
Consistent with Coble’s order, Tankesly was taken to Wayne County Medical Center on
May 7, 2013 for a CT scan. (Coble Decl. ¶ 10; Med. Rec. 12, 99, 290.) He was evaluated by Dr.
Stephen Parey, an ENT with Middle Tennessee ENT Specialists, on May 15, 2013. (Coble Decl.
¶ 8; Med. Rec. 12, 99, 291–94.) Dr. Parey performed a biopsy of the mass and diagnosed the
plaintiff as having a malignant neoplasm of the right tonsil and malignant neoplasm metastasis to
the cervical lymph nodes—in other words, metastatic tonsillar cancer. He ordered a referral to an
oncologist. (Med. Rec. 294.) Dr. Coble informed Tankesly that he had cancer on May 22, 2013.
(Pl. Aff. ¶ 5; Med. Rec. 13.)
Based on Parey’s referral, Tankesly was evaluated by an oncologist, Dr. Mark
Messenger, on May 30, 2013. (Coble Decl. ¶ 12; Med. Rec. 99, 281–82.) Messenger determined
that treatment required a course of combined chemotherapy and radiation and referred the
plaintiff for radiation. Messenger’s letter to Coble stated: “We will see him back in the next
week or so. I will talk to Radiation in the meantime and hopefully get him started in relatively
short manner for his chemotherapy and radiation.” (Med. Rec. 282.)
On June 5, 2013, the plaintiff presented at the prison clinic requesting to see Coble to
discuss his diagnosis and his increased pain level. Orton noted that she was referring the plaintiff
to Dr. Coble. (Med. Rec. 13.) He returned the next day to review his medical records. “R.
Littrell” noted that Tankesly was “concerned with the possibility of having cancer.” (Med. Rec.
13.)
Tankesly was transported to Maury Regional Medical Center Cancer Center on June 17,

12
2013 to see saw Dr. Joel Kochanski, a radiation oncologist. (Coble Decl. 13; Med. Rec. 100,
300–03, 322.) Kochanski, like Messenger, recommended a combined course of chemotherapy
and radiation. He noted that Tankesly reported a pain rating of 6 out of 10, but he did not
recommend pain intervention. (Med. Rec. 303.) He noted that the plaintiff needed a “treatment
planning” PET/CT scan and dental evaluation before radiation therapy could begin. (Coble Decl.
¶ 15; Med. Rec. 303.) He anticipated a start date within “two–three weeks.” (Med. Rec. 303.)
Following the dental evaluation and PET scan, Tankesly saw Messenger again, on
Coble’s orders, on July 17, 2013. (Coble Decl. ¶ 18; Med. Rec. 16, 102, 308.) Messenger noted
that Tankesly was to follow up with him on August 5, 2013 to start chemotherapy and that he
would need to continue seeing Messenger “each Monday starting 8/5/13 for at least the next 8
wks.” (Med. Rec. 308.)
Between August 5, 2013 and September 26, 2013, Tankesly was transported to outside
medical providers numerous times for radiation and chemotherapy treatments. He finished his
last chemotherapy and radiation treatments on September 26, 2013. (Coble Decl. ¶ 19; Med. Rec.
16–32, 106–13, 315–36, 397–98.)
During this time period, Tankesly refused his radiation and chemotherapy treatment at
least once. (Med. Rec. 21, 406.) The defendants allege that Tankesly also refused his Ensure or
Boost nutritional supplemental drinks on “multiple occasions.” (Coble Decl. ¶ 21; see also Med.
Rec. 19, 21, 404, 405, 22, 407, 408 (indicating he refused Ensure or Boost seven times from
Aug. 24–31, 2013); 25, 30, 409, 410 (skipped four supplements from Sept. 14–17, 2013
(9/14/13); 413–16 (skipped four supplements between Oct. 25, 2013 and Jan. 11, 2014). The
plaintiff insists that he only refused the Boost and Ensure in August and September 2013 because
he was in severe pain, unable to swallow, and vomiting up his medications. (See Pl. Aff. ¶¶ 6, 9,

13
10.)
This statement is substantiated by the Medical Record, which shows that his
chemotherapy doctor ordered placement of a feeding tube (“PEG tube”) on August 28, 2013,
because the plaintiff was unable to talk or swallow. (Pl. Aff. ¶ 22.) Coble authorized the
placement of the PEG tube on September 4, 2013, and the tube was surgically inserted on
September 16, 2013.4 (Coble Decl. ¶ 23; Med. Rec. 28–29, 109, 110.) Tankesly complains that
Wendy Ashe entered an order that the PEG tube should not be used and that, in fact, it was never
used after it was inserted. (Pl. Aff. ¶ 22.) He also alleges that, by that time the tube was placed,
he was able to swallow again (Pl. Aff. ¶¶ 22, 33)5, suggesting that there was no need for it to be
used.6
Tankesly states that he refused the cancer therapies because he was in pain and frustrated
that Coble would not see him to evaluate the sores in his mouth and throat or order sufficient
pain medication. Specifically, the plaintiff complains that his radiation oncologist prescribed
time-released morphine, but Coble would not authorize it. (Pl. Aff. ¶¶ 7–16.) Tankesly alleges
that, even at a meeting arranged with Wendy Ashe, other officials, the plaintiff, and Coble on
August 26, 2013, Coble refused to speak directly with the plaintiff or acknowledge his condition
or pain level. The plaintiff complained at that meeting that he was frustrated that no one was
taking his complaints seriously and that he had lost a significant amount of weight as a result of
having not eaten anything for five days. (Pl. Aff. ¶ 17.) Coble stated only that he would not

4

Around the same time, beginning on September 14, 2013, the plaintiff began
complaining of blood in his urine. He was taken to the emergency room for diagnosis and
treatment of what turned out to be a urinary tract infection. (Med. Rec. 337–51.)
5
The court has located one reference to usage of the PEG tube: the plaintiff was given
“60 cc H20 per tube” on 9/19/13. (Med. Rec. 31.)
6
The plaintiff also began inquiring about the possibility of removing the PEG tube in
November and December 2013. (Pl.’s Ex. C, Doc. No. 258-3, at 5.)

14
prescribe pain medication other than Lortab. (Pl. Aff. ¶ 18.) The plaintiff alleges that he told his
radiation oncologist on August 27, 2013 that he wanted to discontinue treatment, not because he
wanted to die, but because he could not handle the pain without adequate medication. The
doctor talked him into continuing treatment by telling him the pain would continue to get worse
even without treatment and that his tumor would return if he did not finish his course of
treatment. (Pl. Aff. ¶¶ 19–20.) The plaintiff concedes that Coble increased his Lortab 7.5 to
three times a day on August 30, 2013. (Pl. Aff. ¶ 27.)
The feeding tube was removed on January 3, 2014. Coble asserts that the tube was
removed because Tankesly had begun to regain weight, so the tube was no longer necessary.
(Coble Decl. ¶ 23; Med. Rec. 35–36.) The plaintiff denies that he had actually gained significant
weight. The plaintiff states that he weighed 239 pounds in January 2013. Plaintiff’s Exhibit D,
titled “Weight Loss/Gain Record,” is sworn under penalty of perjury. It reflects that the plaintiff
had lost 25 pounds by July 2013, before beginning chemotherapy and radiation, and weighed 174
by the time his treatments ended on September 23, 2013. ((Pl.’s Ex. E, Doc. No. 258-4, at 2.)
From the end of September through the end of December 2013, his weight fluctuated around 172
pounds. He weighed 168 on December 27, 2013, down from 173 at the beginning of December.
(Id. at 3.) In mid-December, it increased to 180 or close thereto for about a week, and then
steadily dropped when his Ensure was reduced and then discontinued. (Id.) Regardless, the
plaintiff does not allege that there was ever a point that he was unable to swallow at all and
therefore needed the PEG tube after it was inserted. His complaint is that Coble refused to
provide effective pain control and continuously tinkered with the amount of Ensure he was
allowed to receive, without actually monitoring the plaintiff’s weight or overall condition.
The plaintiff submitted as an exhibit his Sick Call Requests dating from June 4, 2013

15
through November 3, 2013 (Pl.’s Ex. C., Doc. No. 258-3, at 1–9.) Many of these document
complaints about pain relief and nutritional supplementation. His request dated August 23, 2013
notes that this is his “FIFTH REQUEST” to see the doctor, implying that the other four had been
denied or ignored. (Doc. No. 258-3, at 4.) The record does not include any sick call requests
predating his cancer diagnosis demanding to see the doctor relating to the swelling in his neck.
By February 2014, Tankesly’s cancer had resolved. (Coble Decl. ¶ 24.) Coble ordered a
follow-up CT scan in October 2014, which indicated that the plaintiff remained cancer-free at
that time. (Coble Decl. ¶ 25.) Another follow-up examination with an ENT on March 3, 2015
revealed no evidence of cancer. (Coble Decl. ¶ 26.) The plaintiff’s medical record reflects that he
continued to complain about difficulty swallowing, eating, and gaining weight throughout that
time frame. (See, e.g., Med. Rec. 40–42 (complaining of sores in mouth and inability to eat in
March and April, 2014); Med. Rec. 54 (requesting that order for Ensure/Boost be increased,
stating he was still not able to gain weight), Med. Rec. 59 (on transfer to NWCX, complaining of
continued problem with lack of saliva and difficulty swallowing).) However, the record also
shows that he weighed 189 on April 24, 2014 (Med. Rec. 43) and 182 in September and
November 2014 (Med. Rec. 50). He weighed 180 when he was transferred to Northwest
Correctional Complex (“NWCX”) on March 18, 2015. (Med. Rec. 59.)
Dr. Coble asserts generally that, from the time he first saw the plaintiff for the swelling in
his neck on May 3, 2013 through the date he was transferred to NWCX almost two years later,
he entered, approved, or reviewed over sixty orders relating to the plaintiff’s cancer treatment.
These include orders referring him to outside providers; orders for CT and PET scans; transport
orders; orders for pain medication, specifically Lortab; orders for Phenergan, Miracle
Mouthwash, Boost and Ensure; and orders for the feeding tube placement and removal. (Coble

16
Decl. ¶¶ 29, 30.) Coble alleges that he also “monitored and treated” the plaintiff throughout the
process of his cancer treatment, by “reviewing and approving his medical file, examining [him],
and counseling [him].” (Coble Decl. ¶ 31.) According to Coble, he never refused or denied
Tankesly medical care or treatment. (Coble Decl. ¶ 33.) He attests that he acted in good faith as a
reasonably prudent medical professional in all his interactions with the plaintiff and that his
treatment of Tankesly at all times met or exceeded the standard of medical care in a corrections
setting. (Coble Decl. ¶ 31.)
Tankesly specifically denies that Coble ever “counseled” him or monitored him and
maintains that Coble only rarely examined him. ((Pl. Aff. ¶¶ 8, 9, 18; Reply in Supp. of Objs. to
R&R, Doc. No. 306, at 2.) He insists that Coble was aware of the sores and blisters on the
plaintiff’s tongue and throat but refused to order adequate pain relief and nutritional
supplements. (Doc. No. 306, at 2 (citing Pl.’s Ex. C, Doc. No. 258-3, showing sick call requests
that Coble purportedly ignored).) He claims that Coble tinkered with the amount of Ensure he
was authorized to receive, but the continuous changes did not correlate with substantial weight
gain by the plaintiff. (Pl. Aff. ¶¶ 52, 72; Weight Log, Pl.’s Ex. D, Doc. No. 258-4, at 2–3.)
Defendant Orton also treated Tankesly after referring him to Martin on April 30, 2013.
She referred him to Coble in connection with the plaintiff’s complaints about pain on June 5,
2013, as a result of which Coble ordered Lortab on June 10, 2013. (Orton Decl. ¶ 7, Doc. No.
219-2; Med. Rec. 13, 100.) She referred him for pain again on July 18, 2013, and Coble again
ordered Lortab. (Orton Decl. ¶ 8; Med. Rec. 16, 104 (“Increase Lortab to 7.5 BID x 180 days”).)
Orton assisted in preparing the plaintiff’s medical packets in connection with his outside
appointments. (Orton Decl. ¶ 9.) She also provided him with prescribed medication, dispensed
Ensure and Boost, and performed PEG tube flushes. (Orton Decl. ¶¶ 5, 10.) According to Orton,

17
she never refused or denied Tankesly medical care or treatment. (Orton Decl. ¶ 11.)
Like Coble, Orton attests that she acted in good faith as a reasonably prudent medical
professional in all her interactions with the plaintiff and that her treatment of him at all times met
or exceeded the standard of medical care in a corrections setting. (Orton Decl. ¶ 12.)
The plaintiff insists that Orton withheld Boost and Ensure drinks from him and
deliberately sabotaged his recovery. For instance, in his Verified Complaint, he alleges that
Orton “set out to Sabotage Plaintiff’s Recovery . . . by distributing his Flavored Ensures to every
inmate prescribed Boost Nutrition Drinks, deliberately leaving Plaintiff with NO Nutritional
Intake for as long as 90(+) days which continues as this claim is being prepared.” (Verif. Compl.
at 13 ¶ 43.) In his Sworn Affidavit, he alleges that Orton refused to provide prescribed
medication, specifically Omeprazole for acid reflux, from September 18 through September 24,
2013 (Pl. Aff. ¶¶ 35, 37, 39, 41–43), and Ensure. He states: “It is virtually impossible to keep a
record of every time they DID NOT have Ensure, it is so frequent, nearly every weekend,
because Orton gave it to anyone. This negligence is prohibiting me from Recovery, slowing my
Healing and diminishing any weight gain from one day to the next.” (Pl. Aff. ¶ 46.) On
December 13, 2013, Orton was distributing medications at the pill window and asked the
plaintiff for his identification card. The plaintiff claims she did this purely out of malice, never
having asked him for identification in the three years of his going to the pill window, and that he
was forced to return to his cell to retrieve his identification card, even though it was 19 degrees
outside. He also complains that, on the same date, Orton handed sealed bottles of Ensure to other
inmates but opened his before handing it to him. (Pl. Aff. ¶ 57.) He claims generally that Orton
deliberately interfered with his recovery, causing unnecessary stress and anxiety, despite
knowing the harm that stress can delay recovery from serious illness. (Pl. Aff. ¶ 63.) He

18
complains generally about her speaking hatefully and threateningly to him at every interaction.
The plaintiff complains generally that the medical staff did not have any Ensure to
distribute to him at various times, in particular for nine straight days during December 2013. He
alleges that during this time period, he was without any nutrition at all, because he was still not
capable of eating real food. (Pl. Aff. ¶ 73.) He does not tie the lack of Ensure to specific acts by
Orton other than to blame her generally for sabotaging his recovery and distributing Ensure to
other inmates, despite Wendy Ashe’s directive that Tankesly should be the only inmate receiving
flavored Ensure. (Pl. Aff. ¶ 56.)
The plaintiff submits the declarations and affidavits of other prisoners who purport to
have personally witnessed Orton and other medical staff withhold Ensure and other medication
in “complete disregard” for Tankesly’s obvious pain and suffering. (See, e.g., Tony Robinson
Decl., Doc. No. 258-1, at 19–20; James Allen Decl., Doc. No. 258-1, at 27–28.)
The plaintiff wrote letters and had others write letters on his behalf, complaining in
particular about the lack of adequate pain control and nutrition while his treatment was ongoing.
(See, e.g., 8/26/2013 Letter from Ronald Small, Assistant Fed. Public Defender, to Warden Arvil
Chapman, requesting that he “facilitate Mr. Tankesly receiving the pain treatment that he
requires”).
II.

STANDARD OF REVIEW
In reviewing a motion for summary judgment, the court must “constru[e] the evidence

and draw[] all reasonable inferences in favor of the nonmoving party.” Hirsch v. CSX Transp.,
Inc., 656 F.3d 359, 362 (6th Cir. 2011). Summary judgment is appropriate where the movant
demonstrates that there is “no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The key issue is “whether the evidence

19
presents a sufficient disagreement to require submission to a jury or whether it is so one-sided
that one party must prevail as a matter of law.” Rocheleau v. Elder Living Constr., LLC, 814
F.3d 398, 400 (6th Cir. 2016) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52
(1986)).
At this stage, “the judge’s function is not . . . to weigh the evidence and determine the
truth of the matter, but to determine whether there is a genuine issue for trial.” Anderson, 477
U.S. at 249. But “[t]he mere existence of a scintilla of evidence in support of the [non-moving
party’s] position will be insufficient,” and the party’s proof must be more than “merely
colorable.” Id. at 252. An issue of fact is “genuine” only if a reasonable jury could find for the
non-moving party. Id.
III.

DISCUSSION
All three defendants argue, in their respective motions, that (1) any claims based on

events that took place more than one year prior to the filing of the Verified Complaint in this
action are barred by the statute of limitations; (2) the undisputed facts establish that the
defendants did not deny the plaintiff necessary medical treatment or act with deliberate
indifference to his serious medical needs, for purposes of the plaintiff’s claims under 42 U.S.C. §
1983; and (3) the state law claims are subject to dismissal because the plaintiff failed to comply
with the statutory prerequisites for bringing a medical malpractice claim under state law, and
because the undisputed facts do not establish negligence. The defendants argue in the alternative
that the court should decline to exercise jurisdiction over the state claims if the federal claims are
dismissed on the merits. (Doc. Nos. 219, 225.)
The magistrate judge recommends granting summary judgment to Coble on the grounds
that the undisputed facts establish that Coble did not act with deliberate indifference to the

20
plaintiff’s medical needs. He recommends that summary judgment in favor of Orton and Martin
be granted on statute of limitations grounds, and he, therefore, did not reach the merits of the
claims against them. Finally, he recommends that the court decline to exercise jurisdiction over
the state law claims and that those claims be dismissed without prejudice. The plaintiff objects
strenuously to the dismissal of his claims.
A.

Statute of Limitations

The magistrate judge recommends granting summary judgment in favor of both Martin
and Orton on the basis of the statute of limitations. Regarding Martin, he found that the statute
began to run on December 27, 2011, but he elected to use July 16, 2012 as the date on which the
one-year limitations period began to run. (Doc. No. 294, at 16.) He found that the limitations
period expired on July 16, 2013 and that tolling while the plaintiff exhausted his administrative
remedies, or while he received cancer treatment, was not appropriate, because the limitations
period expired before any tolling would have begun. He found that the statute began to run on
the claims against Orton on July 3, 2012, based on the plaintiff’s unambiguous allegation that
Orton had prohibited him from seeing Coble for “304 days” prior to May 3, 2013, when Coble
first examined him. (Doc. No. 284, at 19 (citing Doc. No. 259 at 6 ¶ 8).)
Although the plaintiff did not respond to the defendants’ statute-of-limitations arguments
in his Response to the Motions for Summary Judgment, he objects to the R&R on the basis that
(1) the magistrate judge’s reliance on December 27, 2011 as the date the statute of limitations
began to run is improper, because the plaintiff was unaware of the existence of that notation in
his medical record until he took discovery in this action; (2) he did not know or suspect that he
had a cause of action as early as July 2012 based solely on the swelling in his neck; (3) the
statute of limitations did not accrue until May 2013, when the biopsy revealed cancer and the

21
plaintiff actually learned that he had suffered damages as a result of the defendants’ inaction; (4)
equitable estoppel applies to toll the statute of limitations because the defendant took steps to
prevent the plaintiff from timely filing; and (5) the continuing violation doctrine applies, because
Martin’s actions “inflicted continuing and accumulating harm,” based on a “long standing and
demonstrable policy” of discrimination. (Doc. No. 297, at 15 (citations omitted).)
As set forth below, the court finds that the plaintiff’s claims did not accrue until he
learned of his cancer diagnosis. The court therefore finds, without reaching the plaintiff’s
arguments regarding tolling and estoppel, that his claims against Martin and Orton are not barred
by the statute of limitations.
1. Accrual of the Cause of Action
“The statute of limitations applicable to a § 1983 action is the state statute of limitations
applicable to personal injury actions under the law of the state in which the § 1983 claim arises.”
Eidson v. Tenn. Dep’t of Children’s Servs., 510 F.3d 631, 634 (6th Cir. 2007). The applicable
limitations period in Tennessee is one year. Tenn. Code Ann. § 28-3-104(a). Howell v. Farris,
655 F. App’x 349, 351 (6th Cir. 2016) (citations omitted).
“Although the applicable time period is borrowed from state law, the ‘date on which the
statute of limitations begins to run in a § 1983 action is a question of federal law.’” Id. (quoting
Eidson, 510 F.3d at 635). Under federal law, the limitations period ordinarily begins to run
“when the plaintiff knows or has reason to know of the injury which is the basis of his action.”
Id. That is, the cause of action accrues upon the occurrence of the event that “should have alerted
the typical lay person to protect his or her right.” Id. (quoting Kuhnle Bros., Inc. v. Cnty. of
Geauga, 103 F.3d 516, 520 (6th Cir. 1997)). 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

22
Gas & Water Div., 777 F.3d 838, 843 (6th Cir. 2015) (quoting Wallace v. Kato, 549 U.S. 384,
388 (2007)).
Accrual principles are “governed by federal rules conforming in general to common-law
tort principles.” Wallace, 549 U.S. at 388. No single accrual rule applies to a § 1983 action;
rather, it appears that courts apply “the rule that applies to the common-law cause of action most
similar to the kind of claim the plaintiff asserts.” Devbrow v. Kalu, 705 F.3d 765, 767 (7th Cir.
2013) (citing Wallace, 549 U.S. at 388); see also Owens v. Baltimore City State’s Attorneys
Office, 767 F.3d 379, 389 (4th Cir. 2014) (“[T]o determine the date of accrual for a particular §
1983 claim, a court must look to the common-law tort that is most analogous to the plaintiff’s §
1983 claim and determine the date on which the limitations period for this most analogous tort
claim would begin to run.” (citing Wallace, 549 U.S. at 388)); Varnell v. Dora Consol. Sch.
Dist., 756 F.3d 1208 (10th Cir. 2014) (“Following Wallace, we determine the accrual date of
Plaintiff’s claim by looking to the accrual date for the common-law tort most analogous to her §
1983 claim”).
“The tort claim most closely analogous to a deliberate-indifference claim premised on a
medical error is medical malpractice.” Devbrow, 705 F.3d at 768. In the medical malpractice
context, the Sixth Circuit holds that a cause of action accrues, not simply at the time of the
plaintiff’s injury, but when the plaintiff “knows both the existence and the cause of his injury.”
Amburgey v. United States, 733 F.3d 633, 636 (6th Cir. 2013) (quoting United States v. Kubrick,
444 U.S. 111, 113 (1979)). More specifically, a medical malpractice claim accrues “when a
plaintiff possesses enough information with respect to [his] injury that, ‘[h]ad [he] sought out
independent legal and medical advice at that point, [he] should have been able to determine in
the [limitations] period whether to file an administrative claim.’” Hertz v. United States, 560

23
F.3d 616, 618 (6th Cir. 2009) (quoting McIntyre v. United States, 367 F.3d 38, 53 (1st Cir.
2004)). Determining when a plaintiff has such knowledge is “necessarily fact-intensive.” Hertz,
560 F.3d at 619.
The federal courts also recognize that, when a plaintiff’s claim of malpractice is
predicated upon “a physician’s failure to diagnose, treat, or warn” and that this failure “results in
the development of a more serious medical problem,” identifying the injury and its cause is more
difficult than when “affirmative conduct by a doctor inflicts a new injury.” Augustine v. United
States, 704 F.2d 1074, 1078 (9th Cir. 1983). In the former type of case:
the injury is not the mere undetected existence of the medical problem at the time
the physician failed to diagnose or treat the patient or the mere continuance of that
same undiagnosed problem in substantially the same state. Rather, the injury is
the development of the problem into a more serious condition which poses greater
danger to the patient or which requires more extensive treatment.
Id. (emphasis in original).
Consequently, in a case involving failure to diagnose or treat, a plaintiff’s cause of action
accrues when he “becomes aware or through the exercise of reasonable diligence should have
become aware of the development of a pre-existing problem into a more serious condition.” Id.;
see also Harvey v. United States, 685 F.3d 939, 948 (10th Cir. 2012) (“Before [the plaintiff’s]
misdiagnosis claim could accrue, he must have been aware—or through the exercise of
reasonable diligence should have been aware—that the lack of proper treatment had caused his
broken hand to develop into a more serious condition.”); Arroyo v. United States, 656 F.3d 663,
669 (7th Cir. 2011) (“A plaintiff’s claim accrues the first time the plaintiff knew, or a reasonably
diligent person in the plaintiff’s position, reacting to any suspicious circumstances of which he or
she might have been aware, would have discovered that an act or omission attributable to the

24
government could have caused his or her injury.”).7
Thus, for instance, in Meyer v. United States, 23 F. Supp. 3d 861 (W.D. Mich. 2014), the
court noted that, under federal law, a tort claim generally accrues at the time of the plaintiff’s
injury, but a medical malpractice claim accrues when the plaintiff “knows both the existence and
cause of his injury.” Id. at 863 (quoting United States v. Kubrick, 444 U.S. 111, 113, 120
(1979)). Under that rule, the Meyer court held that the plaintiff’s medical malpractice claim
under the Federal Tort Claims Act, based on a CT scan revealing possible cancer, did not accrue
until the plaintiff actually learned, five years after the scan, that the scan had revealed an
abnormality that required follow up. Only at that point did he learn that he had a cause of action
based on the defendants’ failure to render a timely diagnosis of cancer. The court expressly held
that the cause of action did not accrue when the doctor failed to inform the plaintiff of the results
of his CT scan or even when he was diagnosed with cancer three years later, or when the hospital
released its medical records to him, which contained the doctor’s notes from the CT scan, noting
7

The court finds that Scott v. Ambani, 577 F.3d 642 (6th Cir. 2009), does not compel a
different result. In that case, the plaintiff alleged that his doctor was deliberately indifferent to his
medical needs in connection with his treatment for prostate cancer. There, the defendant
informed the plaintiff in March 2002 that he had an elevated PSA, indicating a possibility of
prostate cancer. The doctor performed a biopsy but did not find cancer. He recommended that
the plaintiff follow up with his regular physician in a year. The plaintiff alleged that the doctor
failed to pursue additional testing or treatment options, as a result of which the plaintiff suffered
distress, “thinking that he could be dying from cancer” and that he experienced a delay in the
treatment of cancer. In October 2004, he still had a high PSA level and was referred back to the
same doctor for a second biopsy. In January 2005, this biopsy revealed cancer.
Even though the parties did not challenge the district court’s findings regarding the
statute of limitations, the Sixth Circuit noted that the trial court had “correctly concluded that
Scott’s claim against Dr. Ambani accrued in 2002,” when the doctor refused the plaintiff’s
requests for further testing and treatment. Id. at 646. “According to the complaint, it was this
denial which caused Scott to experience mental and emotional distress regarding the uncertainty
of his diagnosis. This mental and emotional distress forms the basis of Scott’s claims against Dr.
Ambani . . . .” Id. That case is distinguishable on the basis that the plaintiff here complains that it
was the delay in treatment itself that caused the plaintiff’s cancer to progress and to require more
aggressive treatment, not that the failure to perform additional testing in 2012 caused emotional
distress.

25
the abnormality and recommending follow-up. Id. at 864. Instead, it accrued when he was told,
in 2012, that his cancer could have been detected—and presumably treated—in 2007 instead of
2010. Id. at 865 (citing Augustine, 704 F.2d at 1078).
Applying these principles in the § 1983 context, courts have held that a plaintiff’s cause
of action based on a failure to diagnose cancer, resulting in progression of the disease over time
and more intensive treatment than would have been required if it had been detected sooner, does
not accrue until the plaintiff is actually diagnosed with cancer. In particular, in Devbrow, the
plaintiff knew even before he went to prison that he was at elevated risk for prostate cancer.
When he arrived at prison, he told the intake physician that he had prostate problems and would
need to be tested for prostate cancer within two to four years. Four years later, in February 2004,
the prison doctor ordered a PSA test (“prostate-specific antigen”), which revealed a significantly
elevated PSA level. The nurse practitioner requested a urology consult, but the prison doctor
denied it. A year later, another PSA revealed an even higher PSA, and a biopsy was finally
ordered. That biopsy revealed “high-grade prostatic intraepithelial neoplasia, a precursor to
prostate cancer.” Devbrow, 705 F.3d at 767. Even then, no treatment was ordered. In a follow-up
biopsy six months after that, the plaintiff was diagnosed with prostate cancer, but, by that time,
the disease had metastasized and his treatment options were limited. The plaintiff did not learn of
the cancer diagnosis until October 21, 2005; he learned of the metastasis on December 16, 2005.
The district court construed the claim as a continuing violation that began when the
February 2004 PSA result, in conjunction with the plaintiff’s history, showed the need for a
biopsy, and ended fourteen months later, when the first biopsy was performed. Because the
lawsuit was filed more than two years after that, the district court dismissed the action as timebarred. The Seventh Circuit reversed, holding that “[t]he statute of limitations for a § 1983

26
deliberate-indifference claim brought to redress a medical injury does not begin to run until the
plaintiff knows of his injury and its cause.” Id. at 766. More specifically, the court held that the
plaintiff did not actually know of his injury—and the statute of limitations did not begin to run—
until he learned from the second biopsy that he had metastatic cancer that might have been
diagnosed and treated earlier, but for the defendants’ deliberate indifference. Id. (citing Wallace,
548 U.S. at 387–88).
Rejecting the defendants’ argument that the deliberate indifference ended when the
defendants sent the plaintiff for a biopsy, because the plaintiff at that point could have sued for
nominal or presumed damages, the court stated as follows:
It is true that a prisoner may obtain nominal damages for an Eighth Amendment
deliberate-indifference violation in the absence of a compensable physical injury;
actual damages are not an element of the claim. And a prisoner may also bring an
Eighth Amendment claim when the deliberate indifference of prison officials
creates a likelihood of future harm even if no actual harm is presently manifested.
But accrual rules are applied to the substance of the claim before the court, and
this deliberate-indifference claim seeks redress for a concrete physical injury, not
probabilistic future harm or an abstract injury for which nominal damages are
available as a remedy. Here, Devbrow alleges that the defendants’ deliberate
indifference delayed the diagnosis of his cancer until after it had metastasized.
Devbrow did not know of that injury any sooner than October 21, 2005, when he
received the cancer diagnosis.
Id. at 769 (internal citations omitted). The court recognized that, although the plaintiff could
have brought a deliberate-indifference claim when he was first referred for a biopsy, and before
he had a compensable physical injury in the form of a cancer diagnosis, that was not the claim he
had brought. Id. Because he sought actual damages for cancer, rather than nominal damages
based on the mere failure to refer him for a biopsy sooner, and because he did not know about
the cancer until it was diagnosed, the date of the diagnosis was the appropriate accrual date. Id.
Likewise, in Waters v. The Geo Grp., Inc., No. 2:15CV282, 2016 WL 4373717 (E.D. Va.
Aug. 10, 2016), the prisoner plaintiff alleged that the defendants were deliberately indifferent to

27
his medical needs when they delayed the eventual diagnosis and treatment of his lymphoma. The
defendants argued that the plaintiff’s claims accrued no later than April 29, 2013, when he filed
an informal complaint about a “large tumor protruding from his neck.” Id. at *5. They argued
that, because he “was aware of his medical condition” at that time, his situation was
distinguishable from that of the Devbrow plaintiff. Id. The court disagreed, noting that, although
the plaintiff knew he had a growth, he did not know whether it was malignant or benign until it
was biopsied. He learned that it was malignant on June 18, 2013 and that it was lymphoma a
month later. The court held that his claims accrued, at the earliest, on the date he learned he had
lymphoma and perhaps not until two years later, when he learned that he would suffer from pain
and nerve damage for the rest of his life, as a result of the aggressive chemotherapy required due
to the delay in diagnosis.
The court also distinguished the facts of that case from those in Givens v. Luedtke, 587 F.
App’x 979 (7th Cir. 2014), upon which the defendants in this case rely. In Givens, the inmate
plaintiff alleged that the “defendants unconstitutionally delayed dental care for two months.” Id.
at 979. In January 2007, Dr. Luedtke told Givens he needed to see an oral surgeon for a lesion on
the roof of his mouth. Id. Despite this, Givens did not receive treatment until March 8, 2007, by
which time a “bone was protruding through a hole in his mouth and was gushing pus and blood.”
Id. Three weeks later, Givens was diagnosed with a bone infection. Id. Two years later, another
dentist told Givens that his bone infection was caused by Dr. Luedtke’s use of unsanitary tools
during a root canal. Id. at 980. The district court dismissed Givens’ subsequent suit as timebarred under Wisconsin’s six-year statute of limitations applicable to § 1983 actions. Id.
On appeal, Givens argued that his claim did not accrue until January 2009, when he
learned that Dr. Luedtke had mishandled his root canal. Id. The Seventh Circuit rejected that

28
argument and agreed instead with the district court that Givens’s claim accrued on March 8,
2007, when a “bone was protruding through a hole in [Givens’s] mouth and was gushing pus and
blood,” at which time Givens knew he had a “serious injury.” Id. at 979, 980. The Givens court
also distinguished Devbrow, noting that Devbrow found the accrual date to be the date of
diagnosis “because [Devbrow] could not have known of the injury any sooner.” Id. at 980.
Givens, however, “knew that his mouth was seriously damaged” in March 2007. Id.
The factual scenario presented here is more similar to those in Devbrow and Waters than
to that of Givens. Here, Tankesly filed suit on April 1, 2014. There is no dispute that his claims
are subject to a one-year statute of limitations and that any claims that accrued prior to April 1,
2013 will be time-barred. The undisputed facts demonstrate that Tankesly saw Martin for a
chronic care visit on July 16, 2012, at which time he first complained about a swollen lymph
node on the right side of his neck. She ordered a CBC to check for infection. He had a follow-up
with her after the CBC on August 16, 2012, and he saw her again on January 8, 2013 and April
30, 2013. The record also establishes that Tankesly saw Orton on April 30, 2013, when she made
note of the swelling in his jaw and immediately referred him to Martin, who examined him the
same day and referred him to Coble to be seen ASAP. Tankesly also alleges that he continued to
complain at the pill window and in letters to prison officials that Martin and Orton would not
refer him for additional testing or to see a medical doctor throughout that time period.
Martin and Orton finally referred the plaintiff to Coble on April 30, 2013. Coble
examined him on May 3, 2013 and immediately suspected cancer. The plaintiff was not
affirmatively diagnosed with cancer, however, until he saw the ENT specialist, Dr. Parey, on
May 15, 2013. (See Med. Rec. 291–94.) It appears that Coble received Parey’s assessment on
May 17, 2013 (see Med. Rec. 12, 291), and he met with Tankesly to discuss his diagnosis and

29
expected treatment on May 22, 2013. (Med. Rec. 13.) Tankesly was not informed that he actually
had cancer until May 22, 2013.
The record as a whole makes it clear that, beginning in July 2012 and continuing until
April 30, 2013, Tankesly was dissatisfied with Martin’s (and, to a lesser extent, Orton’s)
response to his fears about the swelling in his neck and believed that he needed further testing
and treatment. Not until his worst fears were confirmed, however, did he have a basis for
believing that the practitioners’ failure to take his complaints seriously and to refer him to a
doctor for further assessment led to the progression of his cancer and the need for more
aggressive treatment. The plaintiff now argues that, even though he suspected a problem, he did
not actually have reason to know that he had suffered an injury until he learned about the cancer
diagnosis and that his cause of action did not accrue until that time. The law appears to support
this argument.
Although Tankesly places great emphasis on the defendants’ failure to refer him to a
physician or for a biopsy from July 2012 until May 2013, his damages claim is based the
defendants’ alleged delay in ordering further diagnostic treatment, which resulted in a metastatic
cancer. In his Verified Complaint, he states that Martin’s and Orton’s refusal to order tests or
refer him to a medical doctor “contributed to the development of the throat cancer” and its
progression to a metastatic stage. (Doc. No. 1 at 8 ¶ 5; see id. ¶ 15;25, 26, 27.) He claims that his
radiation oncologist told him that the delay in treatment resulted in unnecessary complications
and progression of the disease. (Id. ¶ 20.) In other words, the plaintiff brings suit based, not
merely on the failure to provide further testing or referral to a doctor, but on the fact that he
developed stage-four metastatic cancer that allegedly could have been prevented or treated when
it was much less serious, but for the defendants’ alleged deliberate indifference. Like the Waters

30
plaintiff, Tankesly knew that he had a growth in his neck and suspected that it was serious, but
he had no way of actually knowing how serious until it was diagnosed as cancerous.
In support of their statute of limitations defense, the defendants also cite to Hawkins v.
Spitters, 79 F. App’x 168 (6th Cir. 2003), in which the Sixth Circuit affirmed the district court’s
dismissal of the inmate plaintiff’s deliberate indifference claim as time-barred. There, the
plaintiff complained for months about inability to sleep. At some point he learned about sleep
apnea and made repeated requests between November 1996 and December 1997 to be tested for
sleep apnea. These requests were denied. He was finally tested in December 2000 and diagnosed
with sleep apnea. In October 2001, he filed suit against numerous defendants, alleging that they
were deliberately indifferent to his serious medical needs because they denied his repeated
requests for evaluation by a sleep apnea expert.
The district court granted the defendants’ motion to dismiss, finding that the claim
accrued in January 1997, when the defendants denied the plaintiff’s grievance challenging the
denial of his request for a sleep apnea evaluation. On appeal, the plaintiff argued that his claim
did not accrue until he was actually diagnosed with sleep apnea and that, prior to that date, his
claim “would be mere speculation about his condition.” The appellate court nonetheless affirmed
the dismissal, stating that the limitations period “begins to run when the plaintiff knows or has
reason to know that the act providing the basis of his or her injury has occurred.” Id. at 169. The
court stated:
Hawkins’s argument that his cause of action did not accrue until he was actually
diagnosed with sleep apnea is unavailing. In this case, the “violation” being
challenged is the denial of his request for medical attention, i.e., an expert sleep
apnea evaluation. Prior to his diagnosis, Hawkins was clearly aware that the
defendants had rejected his request for such a test and that his grievance had been
denied.
Id. at 169–70. The facts in that case, too, are distinguishable from those presented here, simply

31
on the basis that there was no allegation that Hawkins’s condition worsened over time or was
exacerbated by the defendants’ failure to diagnose and treat it sooner. The plaintiff knew,
beginning in 1996, that he had difficulty sleeping. He continued to have difficulty sleeping. He
was finally diagnosed with sleep apnea, which explained the condition from which he had been
suffering and seeking treatment for several years.
Here, Tankesly’s condition worsened over time to full-fledged metastatic cancer. He
alleges that the delay in treatment contributed to the exacerbation of his condition and the
aggressive nature of the treatment required to address it. The court therefore finds that his claim
based on the failure to diagnose his condition sooner did not accrue until he learned that he had
metastatic cancer on May 22, 2013. The plaintiff filed suit less than one year later, so the claims
are not barred by the statute of limitations.
Moreover, with regard to Orton, the plaintiff brings an entirely separate claim based on
allegations that Orton was deliberately indifferent to the serious medical conditions the plaintiff
suffered as a consequence of his undergoing chemotherapy and radiation—specifically, the sores
in his mouth and throat and difficulties swallowing or keeping down food, which caused
significant pain and resulted in substantial weight loss. This claim did not arise until August
2013, at the earliest, less than one year before the plaintiff filed suit on April 1, 2014. This claim,
as the defendants themselves recognize, is not barred by the statute of limitations.8

8

Even in response to the plaintiff’s Objections to the R&R, Orton does not argue that she
is entitled to summary judgment on all claims against her on the basis of the statute of
limitations, but only on the claim based on actions that took place prior to April 1, 2013. She
argues that any claim based on actions taken after that date fail because the facts do not establish
deliberate indifference. (See, e.g., Defs.’ Resp. to Objs., Doc. No. 305, at 8 (“Here, Tankesly
initiated this action on April 1, 2014. Therefore, he is barred from recovery for any purported
conduct that occurred prior to April 1, 2013. Furthermore, Tankesly has offered zero proof of
any discreet unlawful action taken by Orton after April 1, 2013.” (citation to the record
omitted)).)

32
Consequently, the court will overrule the magistrate judge’s recommendation that the
claims against Martin and Orton be dismissed as barred by the statute of limitations.
B.

Deliberate Indifference

Tankesly’s claims under § 1983 are based on alleged violations of the Eighth
Amendment, which “forbids prison officials from ‘unnecessarily and wantonly inflicting pain’
on an inmate by acting with ‘deliberate indifference’ toward [his] serious medical needs.”
Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 895 (6th Cir. 2004) (quoting Estelle v. Gamble,
429 U.S. 97, 104 (1976)). The Eighth Amendment embodies “broad and idealistic concepts of
dignity, civilized standards, humanity, and decency . . . against which [courts] must evaluate
penal measures.” Estelle, 429 U.S. at 102. “These elementary principles establish the
government’s obligation to provide medical care for those whom it is punishing by
incarceration.” Id. at 103.
The Supreme Court has established a two-step framework for determining whether
certain conditions of confinement constitute “cruel and unusual punishment” prohibited by the
Eighth Amendment. Wilson v. Seiter, 501 U.S. 294, 298 (1991); Reilly v. Vadlamudi, 680 F.3d
617, 623–24 (6th Cir. 2012). That framework, as applied in the context of a deliberate
indifference claim, consists of an objective and a subjective component. Reilly, 680 F.3d at 624;
Blackmore, 390 F.3d at 895.
First, the objective component requires the plaintiff to establish the existence of an
objectively serious medical need, measured in light of “contemporary standards of decency.”
Reilly, 680 F.3d at 624 (quoting Hudson v. McMillian, 503 U.S. 1, 8 (1992)). Second, the
plaintiff must establish the subjective element by demonstrating that the defendants acted with “a
sufficiently culpable state of mind in denying medical care.” Blackmore, 390 F.3d at 895.

33
A plaintiff satisfies the objective component by alleging that the prisoner had a medical
need that was “sufficiently serious.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal
quotation marks omitted). Tankesly clearly suffered from a serious medical need while he was
incarcerated at SCCF: he had stage four, metastatic tonsillar cancer. He had an objectively
serious need for medical treatment. See Blackmore, 390 F.3d at 897.
The question presented here is whether Tankesly has provided sufficient evidence to
prove the subjective component of the deliberate-indifference inquiry. A plaintiff satisfies the
subjective component by “alleg[ing] facts which, if true, would show that the official being sued
subjectively perceived facts from which to infer substantial risk to the prisoner, that he did in fact
draw the inference, and that he then disregarded that risk.” Comstock v. McCrary, 273 F.3d 693,
703 (6th Cir. 2001). The subjective requirement is designed “to prevent the constitutionalization
of medical malpractice claims; thus, a plaintiff alleging deliberate indifference must show more
than negligence or the misdiagnosis of an ailment.” Id. (citing Estelle, 429 U.S. at 106). The
Sixth Circuit has described the mental state of a prison official who has been deliberately
indifferent to a prisoner’s medical needs as akin to criminal recklessness:
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. On the other hand, a plaintiff need not show that the
official acted “for the very purpose of causing harm or with knowledge that harm
will result.” Instead, “deliberate indifference to a substantial risk of serious harm
to a prisoner is the equivalent of recklessly disregarding that risk.”
Id. (internal citations omitted; quoting Farmer, 511 U.S. at 835–36). The plaintiff bears the
burden of proving subjective knowledge, but he may do so with ordinary methods of proof,
including by using circumstantial evidence. Farmer, 511 U.S. at 842. Indeed, “a factfinder may
conclude that a prison official knew of a substantial risk from the very fact that the risk was
obvious.” Id.

34
Bearing these principles in mind, the court turns to addressing whether Tankesly can
prove the subjective component of his claim as to each of the three remaining defendants. See
Rouster v. Cnty. of Saginaw, 749 F.3d 437, 446–47 (6th Cir. 2014) (noting that each defendant’s
subjective knowledge should be assessed separately and that information available to one
defendant may not be automatically imputed to the others (citing Gray v. City of Detroit, 399
F.3d 612, 616 (6th Cir. 2005)).
1.

Martin

Tankesly alleges in his Verified Complaint that Martin failed to diagnose the “Suspicious
Mass” in his neck for a period of ten months, from July 2012 until May 2013, during which time
he repeatedly requested to see a doctor and “even contacted every Corporate and state official
that he knew to contact, requesting medical attention.” His claims against Martin are based on
her failure to order a biopsy or other diagnostic testing and failure to refer him to a doctor. He
avers that “the development of [his] cancer could have been averted had Defendants diagnosed
this Mass in the ten (10) months that Plaintiff repeatedly requested a diagnosis and/or to see a
doctor.” (Doc. No. 1, at 7.)
In his response to her Motion for Summary Judgment, the plaintiff also argues that
Martin should have reviewed his entire Medical Record in advance of each appointment with
him and, thus, that she either knew or should have known that he was complaining about the
mass in his neck continuously from the time he saw her in the summer of 2012 until he saw her
on April 30, 2013. He also asserts, in his Objections to her Statement of Undisputed Facts, that
Martin must have overheard his complaints to other nurses from the medication window. (Doc.
No. 271, at 3.)
The court finds that the undisputed facts in the record, viewed in the light most favorable

35
to the plaintiff, are not sufficient to establish deliberate indifference on Martin’s part. First, the
record is clear that Martin actually saw and treated the plaintiff on July 16, 2012, August 16,
2012, January 8, 2013, and April 30, 2014. In July 2012, she made note of the knot, ordered a
CBC blood panel, and recommended follow-up. Another CBC panel conducted in November
2012 did not provide basis for concern. Martin states in her Declaration that, as of November
2012, she did not have any medical basis for believing that further intervention was required. In
January 2013, she saw Tankesly for his chronic care visit. Her medical notes do not reflect that
Tankesly complained about the swollen lymph node, but Tankesly alleges that he did and that
Martin simply failed to make note of his complaint. Tankesly does not allege that he was
suffering any other symptoms related to the swelling as of that date, however. On April 30, 2014,
when he clearly had experienced a change in his condition, Martin referred him to Dr. Coble for
further evaluation.
The plaintiff does not allege that Martin’s deliberate indifference continued after that
date. He claims, rather, that she knew or should have known, as of July and August 2012 and
January 2013, that the knot on his neck required additional testing and that the tests she ordered
were inadequate. He argues that she knew or should have known that he was continuing to
complain about the knot in his neck from July 2012 through April 2013, because she must have
overheard him complain about it each time he came to the pill window to pick up medications.
Tankesly’s insistence that Martin knew or should have known about his continued
complaints, even if they were not made directly to her, is unsupported by the Medical Record or
by anything other than the plaintiff’s rank speculation. The plaintiff does not point to any sick
call requests made between August 2012 and April 2013, nor does his medical chart reflect
complaints about the swelling during the intervening period. Thus, even if Martin had reviewed

36
his entire medical chart prior to her appointment with him in January, she would not have seen
documentation of repeated complaints about the swollen lymph node. Although it is conceivable,
as Tankesly claims, that he complained about the swelling every time he picked up medications
and that the nurses distributing his medications failed to make note of it, their failure cannot be
attributed to Martin. And, aside from the plaintiff’s speculation, there is no basis in the record for
assuming that Martin would have been aware of these verbal complaints. Martin specifically
denies hearing that Tankesly had made any verbal complaints about the swollen lymph node.
(Martin Decl. ¶¶ 10, 15.) Likewise, although the plaintiff wrote numerous letters to Wendy Ashe
and others complaining that Martin was ignoring his complaints, the plaintiff has not shown that
Martin was aware of these letters.
Moreover, while the plaintiff denies that Martin told him at the August 2012 appointment
to “return as needed” if the knot changed or he developed additional symptoms, the plaintiff’s
subsequent behavior, particularly in April 2013, clearly demonstrates that he knew how to
submit sick call requests and how to lodge complaints about his treatment. In short, there is no
basis in the record for concluding that Martin knew or should have known that the plaintiff
continued to be concerned about the swollen lymph node after she saw him on August 16, 2012
up until she saw him on January 8, 2013.
According to Martin, an enlarged lymph node is most commonly caused by an infection.
She attests that the swollen lymph node, in the absence of any other symptoms, did not give her
reason to suspect that Tankesly was suffering from any serious illness. (Martin Decl. ¶¶ 6, 7.)
Although it is arguable that Martin was negligent in failing to follow the plaintiff’s condition
more closely or to refer the plaintiff for further testing or evaluation by a doctor, the available
evidence is not sufficient to permit a reasonable jury to conclude that she was subjectively aware

37
of how serious the condition was or, therefore, that she was deliberately indifferent to an
objectively serious medical condition.
Generally, “where the prisoner has received some medical attention and now disputes the
adequacy of that treatment, the federal courts are reluctant to second-guess prison officials’
medical judgments and to constitutionalize claims which sound in state tort law.” Lewis v.
McClennan, 7 F. App’x 373, 375 (6th Cir. 2001) (citing Westlake v. Lucas, 537 F.2d 857, 860
n.5 (6th Cir. 1976)). Where there is no evidence that the medical official was aware of
circumstances clearly indicating a serious medical need, there is no basis for concluding that the
medical provider was deliberately indifferent to any such need. Here, the record does not show
that Martin, prior to April 30, 2013, “was aware ‘of facts from which she could and did draw the
inference that her conduct posed a substantial risk of serious harm.’” Reilly, 680 F.3d at 626
(quoting Sanderfer v. Nichols, 62 F.3d 151, 155 (6th Cir. 1995)). Summary judgment in her
favor is appropriate.
The court will grant Martin’s Motion for Summary Judgment on the basis that the facts,
viewed in the light most favorable to the plaintiff, fail to establish that she was deliberately
indifferent to the plaintiff’s serious medical needs.
2.

Orton

As suggested above, the plaintiff has two separate claims against Orton. The first is based
on her alleged failure to refer the plaintiff to a doctor or to order further testing of the swelling on
his neck over the course of ten months, from July 2012 through the end of April 2013, as a result
of which the knot developed into stage-four cancer, requiring chemotherapy and radiation for
treatment. Second, he alleges that Orton was deliberately indifferent to his serious medical needs
during his cancer treatment—that she “deliberately sabotaged” his recovery, perhaps in

38
retaliation for his having filed a complaint against her.
With respect to the claim for failure to treat or refer, the plaintiff alleges that, beginning
in July 16, 2012, he “started asking about a Suspicious Mass [lump] in my neck at sick call and
was seen by Susan Martin, Nurse Practitioner, and Karen Orton. . . . In May 2013 after ten (10)
months seen by nurses Orton, and Martin, the gradual loss of twenty-five (25) pounds I ask to
see a doctor.” (Pl. Aff. ¶¶ 1, 5.) In his Verified Complaint, he alleges that Orton repeatedly told
him not to worry, that the lump was “nothing to be concerned about.” (Doc. No. 1 at 8 ¶ 6.) This
is the sum total of the factual evidence (as opposed to argument) concerning Orton’s
involvement in the plaintiff’s treatment prior to his cancer diagnosis. The plaintiff’s medical
chart does not document that the plaintiff ever saw Orton or was treated by her until April 30,
2013. He saw a Nurse Petty on April 9 and 24, 2013, complaining about the lymph node. By then
the node was visibly swollen, and the plaintiff reported pain, coughing blood, and difficulty
swallowing; Petty recommended follow up by Dr. Coble. (Med. Rec. 10.) There is no evidence
that Orton was involved in those visits.
Even assuming that the plaintiff’s allegations are true, that is, that he repeatedly
mentioned his swollen lymph node to Orton while picking up medications over the course of the
ten months between July 2012 and May 2013, this evidence is insufficient to establish that Orton
was subjectively aware of facts that would have led her to believe that the plaintiff was suffering
from an objectively serious medical condition or that she was deliberately indifferent to that
condition. The undisputed facts establish that, when confronted with more serious symptoms
during the plaintiff’s visit on April 30, she immediately escalated his complaint to Susan Martin,
who referred him to Coble to be seen as soon as possible. While Orton arguably may have been
negligent in failing to inquire further into the plaintiff’s complaints of a swollen lymph node, the

39
plaintiff never put in an actual sick call related to that complaint, and there is no suggestion that
Orton was informed that the swelling had changed over time or was associated with other
symptoms—such as pain, weight loss, difficulty swallowing, or coughing blood—until April 30,
2013. Orton is entitled to summary judgment in her favor on the § 1983 claim arising from her
conduct leading up to the plaintiff’s cancer diagnosis.
Regarding the plaintiff’s claim that she deliberately sabotaged his cancer recovery, the
plaintiff alleges, in his Verified Complaint, Sworn Affidavit, and handwritten declaration the
following facts that allegedly took place after the plaintiff had been diagnosed with cancer, while
he was either undergoing treatment or recovering from the treatment itself:
(1) that Orton intentionally withheld the Ensure that was ordered for Tankesly,
leaving him with no nutritional input for days at a time, while he was unable to
swallow or keep down any other food (Verif. Compl. ¶ 43; Pl. Aff. ¶¶ 54–57; 63–
64; 67–73);
(2) that she intentionally withheld his Lortab and substituted another medication
on at least one occasion, thus deliberately depriving him of pain relief (Verif.
Compl. ¶ 48);
(3) that she deliberately withheld the plaintiff’s prescribed medication for acid
reflux for a period of seven days (Verified Compl. ¶ 9; Pl. Aff. ¶¶ 35–37, 39–43);
(4) that she refused to refer him to Dr. Coble when he was unable to take any food
or swallow pills, due to the sores in his mouth and throat resulting from radiation
and chemotherapy (Pl.’s Decl., Doc. No. 258-1, at 5; Pl. Aff. ¶¶ 9–10);
(5) that she repeatedly threw in the trash notes that the plaintiff left for other
medical practitioners regarding his medical treatment and need for medication
refills (Pl.’s Decl., Doc. No. 258-1, at 6; Pl’s Aff. ¶¶ 23–25); and
(6) that she was continuously rude and disrespectful to him (see, e.g., Pl. Aff. ¶¶
28, 51).
In her Declaration in support of her Motion for Summary Judgment, Orton does not
address most of these allegations. She simply asserts that she provided medical care to Tankesly
for numerous issues, including cancer, by providing various forms of treatment and

40
medications—Boost and Ensure drinks, chronic-care prescription medications, pain medication,
PEG tube flushing

and care—as well as by preparing medical packets for his outside

appointments and referring him to Coble for pain complaints on June 5 and July 18, 2013. (Orton
Decl. ¶¶ 4–10, Doc. No. 219-2.) She asserts that she never refused to provide necessary
treatment and that she acted at all times in good faith. (Id. ¶¶ 11—12.)
The plaintiff’s allegations that Orton was rude and disrespectful do not state an Eighth
Amendment claim. The law is clear that the use of harassing or degrading language by a prison
official, although unprofessional and deplorable, does not violate an inmate’s constitutional
rights. See, e.g., Johnson v. Dellatifa, 357 F.3d 539, 546 (6th Cir. 2004) (harassment and verbal
abuse do not constitute the type of infliction of pain that the Eighth Amendment prohibits).
Accordingly, Tankesly fails to state an Eighth Amendment claim against Orton arising from her
allegedly spiteful and harassing conduct.
Regarding her withholding of his medication for acid reflux, the plaintiff alleges that
Orton intentionally and unnecessarily deprived him of his acid reflux medication for eight days,
causing him to suffer from “Severe Acid Reflux for Eight (8) Days unnecessarily and now
causing my body to build up the [medication] in my system before it can start working again.”
(Pl. Aff. ¶ 43.) Generally, a condition is considered to be objectively serious if a medical
provider has determined that treatment for it is required. See Blackmore, 390 F.3d at 897 (“[A]
medical need is objectively serious if it is one that has been diagnosed by a physician as
mandating treatment . . . .” (citation omitted)). Further, when a prison official intentionally fails
to comply with a medical order or prescription that has already been handed down, this conduct
may give rise to an Eighth Amendment claim. See, e.g., Estelle, 429 U.S. at 104–05 (noting that
intentional interference with prescribed treatment may demonstrate deliberate indifference).

41
The plaintiff also alleges that Orton deliberately denied him nutrition and medications
that had been prescribed in late August 2013, when his mouth was so sore and throat so swollen
that he had difficulty swallowing even water (or supplemental nutrition drinks) and that she
refused to see him or to refer him to Dr. Coble for a period of approximately five days when he
was in desperate pain. (Pl. Aff. ¶¶ 6, 10, 16.) The plaintiff alleges that he lost fifteen pounds
during this time frame. (Pl. Aff. ¶ 17; Weight Log, Doc. No. 258-4, at 2.) He further claims that
Orton repeatedly and intentionally denied him the Ensure supplemental nutrition drinks
prescribed for him by distributing the bottles to other inmates until there was none left for him,
thus sabotaging the plaintiff’s recovery. (See Pl. Aff. ¶ 46 (“It is virtually impossible to keep a
record of every time they DID NOT have Ensure, it is so frequent, nearly every weekend,
because Orton gave it to anyone.”).)9 He also alleges that, in distributing the Ensure to other
inmates, Orton defied a direct order from her supervisor that the flavored Ensure was for
Tankesly only.10 In sum, the plaintiff alleges that Orton intentionally deprived him of medically
prescribed treatment, thus contributing to his inability to gain weight and slowing the healing
process. The court finds that these allegations, if believed by a jury, would be sufficient to permit
the jury to find that Orton acted with deliberate indifference to the plaintiff’s serious medical
needs during the course of his cancer treatments and his recovery from the residual effects of the
radiation and chemotherapy treatments.

9

Although the plaintiff characterizes this conduct as negligent in his Verified Complaint
(see Pl. Aff. ¶ 46), negligence in this context is a legal conclusion, and it is not clear that
Tankesly fully understands the legal effect of that term. Moreover, the court is not required to
accept his characterization of the conduct as opposed to the plaintiff’s factual description of the
conduct itself. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (on motion to dismiss,
courts “are not bound to accept as true a legal conclusion couched as a factual allegation”).
10
As Orton argues, there is no evidence in the record that the plaintiff was allergic to
vanilla-flavored Ensure, and he had no constitutional right to be given the flavor of Ensure that
he wanted.

42
The court will therefore deny that part of Orton’s Motion for Summary Judgment
addressing the plaintiff’s post-diagnosis § 1983 claim, but will grant summary judgment to Orton
on the § 1983 claim based on her alleged pre-diagnosis behavior.
3.

Coble

The plaintiff does not fault Coble for the delayed cancer diagnosis, and the record is clear
that Coble was not responsible for any delay in obtaining treatment for the cancer once it had
been diagnosed. Rather, as the magistrate judge noted, the plaintiff alleges that Coble acted
knowingly, deliberately, capriciously, and arbitrarily with the intent to cause pain and suffering
when he (1) substituted Lortab instead of time-released morphine as prescribed by oncologist Dr.
Michael Sattasiri, M.D. (Verif. Compl. at 11, 22–23); (2) reduced the plaintiff’s pain medication
without examining the plaintiff himself (Verified Verif. Compl. at 15, 34); (3) discontinued the
plaintiff’s “Flavored Ensures” without examining him, having been deliberately misinformed by
other members of the SCCF medical staff that plaintiff was able to eat (Verif. Compl. at 13, 16,
22–23, 33, 35); (4) refused to treat plaintiff’s weight and muscle loss (Verif. Compl. at 13); (5)
refused to check the plaintiff’s weight (Verif. Compl. at 23); and (6) 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 (Verif. Compl. at 33).
The magistrate judge recommends granting summary judgment in favor of Coble on the
basis that the plaintiff’s allegations, even accepted as true, do not establish deliberate
indifference on Coble’s part. The magistrate judge reviewed and summarized the medical record
and concluded that the record as a whole demonstrated that Coble was actively engaged in the
plaintiff’s medical treatment during the initial stages of his diagnosis and treatment for cancer
and during plaintiff’s recovery. He concluded that this record did not support the “plaintiff’s

43
overarching argument that Dr. Coble acted knowingly, deliberately, capriciously, and arbitrarily
with the intent to cause pain and suffering.” (R&R, Doc. No. 284, at 10–11.) And, with regard to
the plaintiff’s specific arguments, the magistrate judge found that: (1) the plaintiff’s claim based
on Coble’s prescribing Lortab instead of the “time-released morphine” prescribed by Dr.
Sattasiri amounted merely to a disagreement with Coble’s decision to substitute one medication
for another and his medical decisions regarding the management of the plaintiff’s pain during his
treatment and recovery, which does not give rise to an Eighth Amendment violation; (2) Coble’s
reduction of the Lortab dosage in March 2014, three days after the plaintiff was examined by a
Dr. Conway but without actually examining the plaintiff himself amounted, at most, to
negligence and not to deliberate indifference to the plaintiff’s serious medical needs; (3) Coble’s
discontinuation of Tankesly’s Ensure in early April 2014 without personally examining him,
based on misinformation deliberately provided to him by other members of SCCF’s medical
staff, again amounted to negligence, at worst, rather than deliberate indifference; (4) the
plaintiff’s allegations that Coble refused to treat his weight loss is contradicted by the record,
which establishes that Coble and Wendy Ashe arranged for the plaintiff to receive a liquid diet
during his recovery, ordered placement of the PEG tub, and ordered that the plaintiff receive
Ensure and Boost to supplement his nutrition; and (5) the plaintiff has not shown that Coble
refused to treat him for problems arising during his recovery. The magistrate judge characterized
the plaintiff’s claims as amounting to disagreement with the care provided or challenges to the
adequacy of the care. He concluded that summary judgment in favor of Coble was warranted on
the basis that “[t]he case before the court is . . . not one where Dr. Coble’s care was so woefully
inadequate as to amount to no care or treatment at all.” (Doc. No. 284, at 13.)
The plaintiff objects, arguing again that the record shows that Coble did not follow all of

44
the plaintiff’s other doctors’ recommendations for treatment, specifically nutrition and pain
control; that, although Coble ordered a liquid diet, the plaintiff did not actually receive an
adequate liquid diet; and that, if “defendant Coble [had] simply looked at Plaintiff’s throat
following his oral and written complaints, plaintiff would not have suffered.” (Doc. No. 298, at
6.) He complains that Dr. Coble did not actually order the PEG tube; rather, he simply
“processed the paper work for the PE[G] tube’s placement and removal based on the direction of
‘outside providers.’” (Id. at 3.) He complains that the PEG tube was removed even though,
contrary to Coble’s allegation, the plaintiff was not actually gaining weight.
The court has reviewed de novo the record as a whole in light of the plaintiff’s
allegations. The plaintiff clearly alleges a serious medical need based on the side effects of the
radiation and chemotherapy treatment he was receiving: severe pain from the sores in his mouth
and throat, resulting in inability to swallow and drastic weight loss. And Dr. Coble was
subjectively aware of the serious medical needs: he ordered placement of the PEG tube as well as
the Ensure and Boost nutritional supplements, a liquid diet, and various types of pain medication.
In other words, he provided care for the plaintiff’s condition. The plaintiff here does not dispute
that Coble prescribed pain medications and nutrition supplements; he simply maintains that he
needed stronger pain medications and more Boost/Ensure drinks.11
The Sixth Circuit, in evaluating deliberate indifference claims, “distinguish[es] between
cases where the complaint alleges a complete denial of medical care and those cases where the
11

For instance, in his Verified Complaint, the plaintiff states:
Defendant Coble prescribed one 5. mg. Loritab [sic] twice a day for CANCER PAIN
eventually raising them to 7.5 mg. twice a day. After 3 weeks of suffering when Plaintiff
could NOT bare [sic] the PAIN any longer, Defendant Coble increased the Loritab’s [sic]
from One 7.5 mg. to two twice a day, leaving Plaintiff to suffer Cancer Pain for Seven (7)
Months . . . . The Pain returned every four hours. Defendant Coble ignored Dr. Sattasiri’s
prescription for Time Released Morphine . . . .
(Verif. Compl. at 22; see also Pl. Aff. ¶¶ 7–8.)

45
claim is that a prisoner received inadequate medical treatment.” Alspaugh v. McConnell, 643
F.3d 162, 169 (6th Cir. 2011) (quoting Westlake, 537 F.2d at 860 n.5). “Where a prisoner alleges
only that the medical care he received was inadequate, ‘federal courts are generally reluctant to
second guess medical judgments.’ However, it is possible for medical treatment to be ‘so
woefully inadequate as to amount to no treatment at all.’” Id. (quoting Westlake, 537 F.2d at 860
n.5).
In this case, there is no question that the plaintiff received extensive treatment related to
his tonsillar cancer. The plaintiff disputes whether Coble actually provided care, insisting that the
care was primarily provided by outside medical providers. He cannot, however, refute Coble’s
testimony that he referred the plaintiff to outside specialists immediately after examining him
and becoming apprised of the swelling in Tankesly’s neck and the other symptoms
accompanying it; that Coble coordinated with outside medical staff and the prison medical staff
to provide for treatment; that he ordered the placement of the PEG tube; that he ordered
medication including Phenergan (for nausea), Miracle Mouthwash, Lortab and other pain
medications, nutritional supplementation, among others; and that he monitored and treated
Tankesly through reviewing and approving his medical file. (Coble Decl., Doc. No. 219-1.)
Although Tankesly would have preferred more aggressive pain medication, the record
establishes that Coble prescribed pain medication. “[A] desire for additional or different
treatment does not suffice by itself to support an Eighth Amendment claim.” Mitchell v.
Hininger, 553 F. App’x 602, 605, (6th Cir. 2014) (citing Estelle, 429 U.S. at 107; Rhinehart v.
Scutt, 509 F. App’x 510, 513–14 (6th Cir. 2013); Graham v. Cnty. of Washtenaw, 358 F.3d 377,
384 (6th Cir. 2004)).
The court will therefore overrule the plaintiff’s Objections and grant summary judgment

46
in favor of Coble.
C.

State Medical Malpractice Claims

In their Motions, the defendants argue that the state-law medical malpractice claims
should be dismissed based on Tankesly’s failure to comply with Tennessee’s mandatory
procedural rules governing the filing of medical malpractice claims.
Specifically, under the Tennessee Health Care Liability Act (“THCLA”), a plaintiff
“asserting a potential claim for health care liability” must provide written notice of the claim to
each health care provider who will be named as a defendant at least sixty days before filing a
complaint based on “health care liability.” Tenn. Code Ann. § 29-26-121(a)(1). A “health care
liability” action is defined as “any civil action . . . alleging that a health care provider or
providers cause an injury related to the provision of, or failure to provide, health care service to a
person, regardless of the theory of liability on which the action is based.” Tenn. Code Ann. § 2926-101(a)(1). THCLA enumerates the information that must be included in the pre-suit notice
and provides that proof of service of the notice must be filed with the Complaint. Tenn. Code
Ann. § 29-26-121(a)(2)–(4). In addition, a plaintiff in a health care liability action is required to
file, with his complaint, a certificate of good faith showing that a medical expert has reviewed
the claims and the plaintiff’s medical records and believes that there is a good faith basis for
maintaining the action. Tenn. Code Ann. § 29-26-122(a)
Tankesly does not respond directly to the defendants’ arguments regarding compliance
with THCLA other than by asserting, without reference to any actual evidence in the record, that
he was prohibited from “working on his lawsuit” while he was still housed at SCCF and that the
defendants generally controlled his access to the library and legal materials. (Doc. No. 270, at
21.) In his Objections to the R&R, he insists, emphatically, that this is “not a malpractice or

47
negligence complaint.” (Doc. No. 298, at 2.)
On the basis of this disclaimer, the court finds that, insofar as the Verified Complaint
may be broadly construed as asserting state-law medical malpractice claims, the plaintiff has
affirmatively abandoned such claims. The defendants are therefore entitled to summary judgment
in their favor and dismissal of any state law claims.12
Even if the plaintiff had not abandoned his claims, the Sixth Circuit Court has concluded
that compliance with THCLA is mandatory, even in federal court. Reed v. Speck, 508 F. App’x
415, 423 (6th Cir. 2012) (dismissing medical malpractice claim on the basis that the plaintiffs
failed to show extraordinary cause to excuse compliance (citing Myers v. AMISUB (SFH), Inc.,
382 S.W.3d 300, 311 (Tenn. 2012); Brandon v. Williamson Med. Ctr., 343 S.W.3d 784, 790
(Tenn. Ct. App. 2010)). Although the Sixth Circuit has apparently not addressed this precise
issue,13 Tennessee state courts as well as several district courts have concluded that pro se
prisoners are required to comply with THCLA before bringing suit for medical malpractice. See,
e.g., Kelly v. S. Health Partners, No. 3:16-1371, 2017 WL 395096, at *5 (M.D. Tenn. Jan. 30,
2017) (recommending dismissal of medical malpractice claims based on the pro se plaintiff’s
failure to comply with THCLA), Report and Recommendation adopted, 2017 WL 998274 (M.D.
Tenn. Mar. 15, 2017); Loyde v. Tennessee, No. 15-2528-JDT-CGC, 2017 WL 1026016, at *5
(W.D. Tenn. Mar. 15, 2017) (dismissing medical malpractice claim on initial review for failure
to comply with notice requirements of THCLA); Baxter v. Tennessee, No. 12-1294-JDT-EGB,

12

Insofar as the Complaint may be construed as asserting claims based on violations of
the Tennessee Constitution, any such claims are subject to dismissal on the grounds that
Tennessee law does not recognize a private cause of action for violations of the Tennessee
Constitution. Bowden Bldg. Corp. v. Tenn. Real Estate Comm’n, 15 S.W.3d 434, 444–45 (Tenn.
Ct. App. 1999); Cline v. Rogers, 87 F.3d 176, 180 (6th Cir. 1996).
13
Reed involved injuries to an incarcerated person, but the suit was brought by the
prisoner’s family after his death.

48
2015 WL 1064601, at *6 (W.D. Tenn. March 11, 2015) (same); Mathes v. Lane, No. E201301457-COA-R3-CV, 2014 WL 346676, at *6–8 (Tenn. Ct. App. Jan. 30, 2014) (holding that the
plaintiff’s status as a pro se prisoner did not excuse his failure to comply with the THCLA’s
procedural requirements).
This court likewise concludes that THCLA applies to pro se prisoners. And, because the
plaintiff has not shown extraordinary cause for failure to comply with the state procedural rules,
any state malpractice claims are subject to dismissal on this basis as well.
IV.

Conclusion
Having conducted a de novo review of the defendants’ Motions for Summary Judgment

in light of the plaintiff’s Objections, the court will grant summary judgment and dismiss the
claims against defendants Martin and Coble in their entirety. The court will grant in part and
deny in part defendant Orton’s Motion for Summary Judgment. Specifically, Orton is not entitled
to summary judgment on the deliberate-indifference claim against her based upon the plaintiff’s
allegations that she deliberately withheld necessary treatment and medication from the plaintiff
during his cancer recovery. However, the court will grant summary judgment in Orton’s favor on
the deliberate indifference claim related to her purported role in delaying the plaintiff’s cancer
diagnosis and on all state-law claims against her.
An appropriate order is filed herewith.

ALETA A. TRAUGER
United States District Judge