Franklin v. Tennessee Department of Correction et al

Filing 5

ORDER: Plaintiff's application to proceed in forma pauperis is herebyGRANTED. The plaintiff is hereby ASSESSED the civil filing fee of $350.00. Clerk is directed to TRANSFER this case to the United States District Court for the Western District of Tennessee, Western Division at Memphis, Tennessee. Signed by District Judge Kevin H. Sharp on 9/18/14. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

JANICE FRANKLIN
Plaintiff,

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v.
TENNESSEE DEPARTMENT OF
CORRECTION, et al.
Defendants.

No. 3:14-1807
Judge Sharp

ORDER

The Court is in receipt of a pro se prisoner complaint (Docket Entry No. 1) under 42 U.S.C.
§ 1983, an application to proceed in forma pauperis (Docket Entry No. 2), and a motion for the
appointment of counsel (Docket Entry No. 3).
The plaintiff is an inmate at the Tennessee Prison for Women in Nashville. It appears from
her application that she lacks sufficient financial resources from which to pay the fee required to file
the complaint. Therefore, the plaintiff’s application to proceed in forma pauperis is hereby
GRANTED. 28 U.S.C. § 1915(a). However, process shall not issue at this time.
The plaintiff is hereby ASSESSED the civil filing fee of $350.00. Pursuant to 28 U.S.C. §
1915(b)(1)(A) and (B), the custodian of the plaintiff's inmate trust account at the institution where
she now resides is directed to submit to the Clerk of Court, as an initial partial payment, whichever
is greater of:
(a) twenty percent (20%) of the average monthly deposits to the plaintiff's inmate trust

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account; or
(b) twenty percent (20%) of the average monthly balance in the plaintiff's inmate trust
account for the prior six (6) months.
Thereafter, the custodian shall submit twenty percent (20%) of the plaintiff's preceding
monthly income (or income credited to the plaintiff's trust account for the preceding month), but
only when such monthly income exceeds ten dollars ($10.00), until the full filing fee of three
hundred fifty dollars ($350.00) as authorized under 28 U.S.C. § 1914(a) has been paid to the Clerk
of Court. 28 U.S.C. § 1915(b)(2).
The plaintiff brings this action against the Tennessee Department of Correction; it’s
Commissioner, Derrick Schofield; the Mark Luttrell Correctional Center (MLCC); Corizon,
presumably the health care provider for inmates at MLCC; Cynthia Pratt, a Corizon Administrator;
Sharon Taylor, Warden at MLCC; at least five members of the MLCC staff; the Regional Medical
Center of Memphis; Nashville General Hospital; the Tennessee Prison for Women; and Dr. Leslie
Collins, a physician at the Tennessee Prison for Women; “because of inadequate and ineffective
medical treatment as well as an indifference to individual care at the Mark Luttrell Correctional
Center”. Docket Entry No. 1 at pg. 9.
Plaintiff’s claims against the Tennessee Prison for Women can not proceed because this
defendant is a penal facility that is not a person that can be sued under § 1983. Rhodes v. McDannel,
945 F.2d 117, 120 (6th Cir. 1991). In addition, the sovereign immunity provided by the Eleventh
Amendment precludes a § 1983 action against the Tennessee Department of Correction. See Berndt
v. Tennessee, 796 F.2d 879 (6th Cir. 1986). Consequently, the claims against these defendants are
DISMISSED.

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The only mention of Nashville General Hospital in plaintiff’s Statement of Facts is that this
facility “would not treat me due to the extensive surgeries I had and transferred me back to Med
Trauma Center at Memphis”. Docket Entry No. 1 at pg. 10. There are no factual allegations provided
in support of this claim of non-treatment. Nor does the plaintiff’s Statement of Facts mention
Commissioner Schofield or Dr. Leslie Collins. The claims against these defendants, therefore, are
conclusory in nature and, as such, are not actionable. Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir.
2005). For that reason, the claims against these three defendants are DISMISSED as well.
Venue for a civil rights action is governed by 28 U.S.C. § 1391(b). That provision requires
that an action, such as the instant case, be brought only in (1) a judicial district where any defendant
resides, if all defendants reside in the same state, (2) a judicial district in which a substantial part of
the events or omissions giving rise to the claim occurred, or a substantial part of the property that
is the subject of the action is situated, or (3) a judicial district in which the defendants are subject
to personal jurisdiction at the time that the action is commenced, if there is no district in which the
action may otherwise be brought.
The remaining defendants in this action either reside or can be found in the Western District
of Tennessee. The plaintiff's claims against these defendants arose at the Mark Luttrell Correctional
Center in Memphis, which lies within the Western District of Tennessee. 28 U.S.C. § 123(c)(2). As
a consequence, venue for the remaining claims more properly belongs in that judicial district.
Accordingly, the Clerk is directed to TRANSFER this case to the United States District
Court for the Western District of Tennessee, Western Division at Memphis, Tennessee. 28 U.S.C.
§ 1406(a). In light of the transfer of this action, plaintiff’s motion for the appointment of counsel is
DENIED, subject to renewal in the receiving court.

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The Clerk is further instructed to send a copy of this order to the Warden of the Tennessee
Prison for Women to ensure that the custodian of the plaintiff's inmate trust account complies with
that portion of the Prison Litigation Reform Act relating to the payment of the filing fee.
It is so ORDERED.

____________________________
Kevin H. Sharp
United States District Judge

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