Bennett v. Brown et al

Filing 54

REPORT AND RECOMMENDATION: Accordingly, the Magistrate Judge recommends that the Plaintiff's motion for an order transferring him to DeBerry Special Needs Facility (Docket Entry 46) be denied, that this case be dismissed as frivolous, accep tance and adoption of this Report and Recommendation ("R&R") constitute the final judgment in this action, that any appeal not be certified as taken in good faith pursuant to 28 U.S.C. § 1915(a)(3), and that dismissal of this action count as a strike under 28 U.S.C. § 1915(g).1 However, the Magistrate Judge also recommends that in its order of dismissal the Court recommend that the State carry. Signed by Magistrate Judge Joe Brown on 1/29/2016. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
COREY ALAN BENNETT #509793,
Plaintiff
v.
WARDEN BRUCE WESTBROOKS, et al.,
Defendants
TO:

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No. 3:15-0937
Senior Judge Haynes/Brown
Jury Demand

THE HONORABLE WILLIAM J. HAYNES, JR.
REPORT AND RECOMMENDATION
For

the

reasons

stated

below,

the

Magistrate

Judge

recommends that this case be dismissed with prejudice and that the
Plaintiff’s motion that the Court order him transferred to the Lois
DeBerry Special Needs Prison (Docket Entry 46) be denied, but despite
the denial of the motion to transfer, that the Court recommend that
Warden Westbrooks institute the mental health evaluation and treatment
outlined in the State’s response to the motion to transfer (Docket
Entry 53).
BACKGROUND
This complaint is one of well over thirty complaints the
Plaintiff has filed against various employees and officials of the
Tennessee Department of Corrections over the years. In his complaint
(Docket Entry 1) the Plaintiff alleged Warden Westbrooks and 24 other
individuals allowed a named inmate to rape him on a daily basis and
that the Defendants had subjected him to numerous beatings, and as a
result he had 22 stitches in his head, a broken collar bone, a broken
jaw, two black eyes, seven stitches behind his ear, a broken left arm,
was transported to Vanderbilt Hospital,

and spent four days in

intensive care. He alleges that when he was released from Vanderbilt
he was again beaten and raped by the inmate and was told that it would
continue until he dismissed his lawsuit.
On

initial

review

the

Court

directed

that

only

Warden

Westbrooks be served, and the matter was referred to the undersigned
to conduct a hearing where the Plaintiff and Warden Westbrooks or his
representative would appear, and that Warden Westbrooks was to bring
for the Court’s inspection all medical records and transport records
relating to the Plaintiff for the preceding six months.
The undersigned was further directed to make a determination
of whether service of process should be entered as to any remaining
Defendants and to consider whether the matter should be referred to the
United States Attorney to investigate possible criminal action against
the Plaintiff under 18 U.S.C. § 1623 for false material declarations
while under oath in any proceedings before federal court (Docket Entry
5).
Pursuant to this directive, the undersigned conducted a
hearing in this matter on December 17, 2015. A transcript of the
proceedings is filed as Docket Entry 50. Before the hearing transcript
was filed, the Plaintiff filed a motion for injunctive relief and a
motion for a fast and speedy ruling (Docket Entry 32); a motion to
voluntarily dismiss this case (Docket Entry 40); and a motion to order
the Plaintiff be transferred to DeBerry Special Needs Facility (Docket
Entry 46).
The Magistrate Judge submitted a report and recommendation
(Docket Entry 42) recommending that the motion for a preliminary
injunction and a fast and speedy trial (Docket Entry 32) be denied.

2

At the hearing, the State submitted the Plaintiff’s medical
records and his transport records (Defendants’ Exhibits 1 and 2) along
with an extensive report by the TBI of an investigation of allegations
the Plaintiff made against a physician employed by a provider of
medical

services

at

Riverbend

Maximum

Security

Prison

where

the

Plaintiff was incarcerated (Exhibit 3). A review of the Plaintiff’s
medical records (Defendants’ Exhibit 2 at the hearing) showed that the
Plaintiff

had

not

been

treated

for

the

injuries

he

claimed

at

Vanderbilt, and an examination of the transport records (Exhibit 1 at
the hearing) established there were no transport records showing his
transportation to Vanderbilt or any other medical facility. The TBI
investigation (Defendants’ Exhibit 3) found the report of misconduct
by the physician was unfounded.
At the hearing, Warden Westbrooks testified concerning his
dealings

with

allegations

the

against

Plaintiff
him

unequivocally that the

and

and
the

specifically
other

denied

individuals.

all
He

of

the

stated

Plaintiff had never been transported from

Riverbend to Vanderbilt Medical Hospital. He explained the plaintiff
was kept in a single cell under 24-hour camera surveillance for his own
protection and for the protection of the staff given the allegations
the Plaintiff made in his lawsuits.

He explained the Plaintiff could

not be put in general population because he had made enemies of both
black and white gangs. The Plaintiff had no questions of the Warden
(Docket Entry 50, trans. pp. 7-11).
The Magistrate Judge pointed out to the Plaintiff some of
the allegations that he had made in his earlier lawsuits about broken
bones and advised him that this was his opportunity to say what he had

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to support his various claims (Docket Entry 50, pp. 12-13). The
Plaintiff advised that despite this advice he did not want to ask the
Warden any questions. He stated that he had mental health problems and
that when he got frustrated he coped with his frustrations by filing
frivolous lawsuits.
He stated he was trying to do better. He admitted he had not
been transported to Vanderbilt and stated he was never going to file
another complaint in the court. He was asked if he understood the
seriousness of filing a lawsuit in which he swore that these things
occurred and the serious consequences that this had on the individuals
he sued, the expense to the State in defending those claims, as well
as the Court’s time in attempting to resolve the matters. He advised
that he was aware of the consequences and that knew he was simply
getting

himself

deeper

and

deeper

in

a

hole

with

his

frivolous

lawsuits. (Docket Entry 50, Trans. 13-15).
The undersigned discussed with the Warden and the Plaintiff
the possibility of a recommendation that the Plaintiff be transferred
to DeBerry Special Needs for mental treatment. The Warden thought at
the time of the hearing that a transfer to DeBerry would be in order
(Docket Entry 50, Trans. 17-21).
Following this hearing, the Plaintiff filed a motion for the
Court to order his transfer to DeBerry (Docket Entry 46). The State has
now responded to that motion (Docket Entry 53) in which it points out
new developments that for practical reasons make a transfer to DeBerry
inappropriate at the present time. The State pointed out in its
response that since the hearing the Plaintiff had scratched threats on
his cell wall and sent a letter stating that he had been cooperating

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with numerous high-ranking members of the vice lords to have them kill
the Assistant Department of Corrections Commissioner and his family.
The State further pointed out it learned the Plaintiff has previously
threatened and committed a physical assault on a female doctor who
would be responsible for overseeing his care at DeBerry. The State
believes that it would be ill-advised to move the Plaintiff to any
other facility at the present time.
The State does, however, propose that the Department provide
the Plaintiff with a thorough mental health evaluation that would be
conducted at his current institution by the Director of Psychiatry for
Corizon, the prison’s mental health service provider. This physician
has not had any previous contact with the Plaintiff and has not been
involved

in

his

treatment.

The

evaluation

would

be

kept

in

the

Plaintiff’s mental health records. The State commits that after this
evaluation the Department would continue to adjust the Plaintiff’s
mental

health

treatment

consistent

with

the

evaluation

and

recommendations, and adjustments would be made as needed concerning the
Plaintiff’s placement at the appropriate correctional institution.
LEGAL DISCUSSION
At the hearing the Plaintiff admitted that his complaints
in his various lawsuits are not true, that he has not been injured as
alleged, and that he files his lawsuits out of frustration. The
Magistrate Judge is satisfied that, while the Plaintiff has mental
health problems, the Plaintiff understood the consequences of what he
was

saying.

It

is

clear

form

the

record

that

the

Plaintiff’s

allegations against all of the Defendants in this case are false and
the case should be dismissed as frivolous.

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The Plaintiff in his motion for a transfer to DeBerry has
cited an order by the this Court in the case of Dunn v. Killingsworth,
1:13-114, directing that the plaintiff in that case be transferred to
DeBerry for mental health treatment (1:13-114, Docket Entry 135). The
undersigned has serious doubts, given the fact that the Plaintiff
admits that his claims in this case are frivolous and are therefore
subject to immediate dismissal, that the Court retains jurisdiction to
order

the

Department

of

Corrections

to

make

such

a

transfer,

particularly given the more recent opinion of the Sixth Circuit in
Hearing v. Sliwowski, 806 F.3d 864 (6th Cir. 2015). Nevertheless, the
Magistrate Judge believes that in the order of dismissal it would be
appropriate for the Court to recommend that the State adopt the program
suggested in its response (Docket Entry 53).
RECOMMENDATION
Accordingly,

the

Magistrate

Judge

recommends

that

the

Plaintiff’s motion for an order transferring him to DeBerry Special
Needs Facility (Docket Entry 46) be denied, that this case be dismissed
as frivolous, acceptance and adoption of this Report and Recommendation
(“R&R”) constitute the final judgment in this action, that any appeal
not be certified as taken in good faith pursuant to 28 U.S.C. §
1915(a)(3), and that dismissal of this action count as a strike under
28 U.S.C. § 1915(g).1 However, the Magistrate Judge also recommends
that in its order of dismissal the Court recommend that the State carry

1

As was previously noted by the District Judge, the Plaintiff has
already “filed at least three civil lawsuits that were subsequently
dismissed as frivolous or for failure to state a claim.” (Docket Entry
5).

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out the program outlined in its response (Docket Entry 53) and that all
other motions be terminated as moot.
Under Rule 72(b) of the Federal Rules of Civil Procedure,
any party has 14 days from receipt of this R&R in which to file any
written objections to this R&R with the District Court. Any party
opposing said objections shall have 14 days from receipt of any
objections filed in this R&R in which to file any responses to said
objections. Failure to file specific objections within 14 days of
receipt of this R&R can constitute a waiver of further appeal of this
R&R. Thomas v. Arn, 474 U.S. 140, 155 (1985).
ENTERED this 29th day of January, 2016.
/s/
Joe B. Brown
JOE B. BROWN
United States Magistrate Judge

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