Hammonds v. W.C. Jail Medical Staff et al

Filing 84

REPORT AND RECOMMENDATION: The Magistrate Judge recommends that the pending motion to dismiss as to all Defendants (Docket Entry 79) be granted and that this case be dismissed with prejudice. The Magistrate Judge further recommends that any appeal fr om the final judgment in this matter not be certified as taken in good faith. Signed by Magistrate Judge Joe Brown on 11/29/2016. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
ERIC T. HAMMONDS, No. 29187,

)
)
Plaintiff
)
)
v.
)
)
W.C. Jail Medical Staff, et al., )
)
Defendants
)
TO:

No. 3:15-1141
Judge Trauger/Brown

THE HONORABLE ALETA A. TRAUGER
REPORT AND RECOMMENDATION
For

the

reasons

stated

below,

the

Magistrate

Judge

recommends that the pending motion to dismiss as to all Defendants
(Docket Entry 79) be granted and that this case be dismissed with
prejudice. The Magistrate Judge further recommends that any appeal
from the final judgment in this matter not be certified as taken in
good faith.
BACKGROUND
The Defendants’ motion to dismiss (Docket Entry 79)
claims four grounds for dismissal.
1.

The complaint fails to state a claim for deliberate
indifference under 42 U.S.C. § 1983 against any
Defendant in their official capacity.

2.

The complaint fails to state a claim for deliberate
indifference

under

42

U.S.C.

§

1983

against

Defendant Handy, Rosenbalm, Barnett, Leonard, and
Sidberry in their individual capacity.

3.

The Plaintiff’s claims against Defendants Kish,
Corriveau, and Sidberry are subject to dismissal
because they are barred the Tennessee one-year
statute of limitations.

4.

The Plaintiff’s claims against Defendants Kish,
Corriveau and Sidberry, to the extent they sound in
malpractice,

should

be

dismissed

because

the

Plaintiff failed to comply with the procedural
requirements of the Tennessee Health Care Liability
Act.
Their memorandum of law in support of the motion (Docket
Entry 8) sets forth a reasonably accurate and complete summary of
the pleadings in the matter. The Plaintiff did not file anything in
opposition. Except as otherwise noted, the Magistrate Judge will
adopt the Defendants’ statement of the case and facts relevant to
the present motions.
The only pleading the Plaintiff filed since the motion to
dismiss (Docket Entry 79) is found at Docket Entry 83 on September
19,

2016,

where

the

Plaintiff

filed

a

motion

entitled

“The

Violation of the Eighth Amendment” which appears to be an objection
to the Magistrate Judge’s report and recommendation to dismiss the
W.C. Jail Medical Staff from the case (Docket Entry 77). It makes
no reference to the Defendants’ motion to dismiss (Docket Entry
79).

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Plaintiff was warned in a previous order that failure to
respond to a motion to dismiss can result in the motion being taken
as unopposed and being granted (Docket Entry 44). The matter is
ready for disposition.
STANDARD OF REVIEW
In ruling on a motion to dismiss under Fed. R. Civ. P.
12(b)(6), the Court should accept all of the allegations contained
in the complaint as true, resolve all doubts in favor of the
plaintiff, and construe the complaint liberally in favor of a pro
se plaintiff. Duckett v. State, 2010 WL 3732192 at *2 (M.D. Tenn.)
(citing Kottmyer v. Maas, 436 F.3d 684 (6th Cir. 2006); Boswell v.
Meyer, 169 F.3d 384, 387 (6th Cir. 1999); Morgan v. Church’s Fried
Chicken, 829 F.2d 10, 11-12 (6th Cir. 1987)).
“Although the Court holds pro se pleadings to a less
stringent standard than formal pleadings drafted by lawyers, the
district court is under no duty to conjure up unpled allegations.”
Kotewa v. Westbrooks, 2013 WL 1249227 at *2 (E.D. Tenn. Mar. 27,
2013) (citing GJR Inv., Inc. v. County of Escambia, 132 F.3d 1359,
1369 (11th Cir. 1998)).
LEGAL DISCUSSION
Official Capacity. Turning first to the contention that
the complaint fails to state a claim for deliberate indifference
against any Defendant in their official capacity, the Defendants
correctly state the case law that a suit against an individual in
an “official capacity” is tantamount to a suit against the local

3

government. In official capacity claims the law requires that the
Plaintiff show that his injuries were the result of some policy or
custom attributable to the governmental entity. Monell v. New York
Dept. of Social Services, 436 U.S. 658, 690 (1978). The Plaintiff
in this case has sued all of the Defendants in both their official
and

individual

capacities.

After

a

careful

review

of

the

Plaintiff’s complaint (Docket Entry 1) and his amendments to the
complaint (Docket Entry 16), the Magistrate Judge cannot find
anywhere that the Plaintiff has identified any policy expressed or
implied or custom initiated by the Defendants which might have
contributed to any alleged injury.
Under Kentucky v. Graham, 473 U.S. § 159, 165-66 (1985),
the governmental entity’s policy or custom must have played a part
in the violation of federal law. The Plaintiff has simply failed to
allege facts to support an official capacity claim. All Defendants
are entitled to a dismissal of all claims against them in their
official capacity.
Individual Capacity. All Defendants, except Kish and
Corriveau, moved to dismiss all claims against them in their
individual capacity.
As the Defendants point out in their motion (Docket Entry
80) the Eighth Amendment prohibits prisoners from being subjected
to unnecessary and wanton infliction of pain, which includes
deliberate

indifference

to

serious

Gamble, 429 U.S. § 97, 106 (1976).

4

medical

needs.

Estelle

v.

To establish a violation of the Eighth Amendment a
plaintiff must meet a two-prong test. The first prong, which is the
subjective

test,

requires

plaintiff

to

demonstrate

that

the

government agent “subjectively perceived a risk of harm and then
disregarded it . . . .” Careless or inefficient treatment, even
incompetent treatment, is not sufficient. Johnson v. Karnes, 398
F.3d 868, 874 (6th Cir. 2005).
The second prong, which is the objective test requiring
the plaintiff to show that the medical issue was sufficiently
serious. A serious medical need is “one that has been diagnosed by
a physician as mandating treatment, or one that is so obvious that
even a lay person would easily recognize the necessity for a
doctor’s attention.” Harrison v. Ash, 539 F.3d 510, 518 (6th Cir.
2008).
The Defendants correctly note a plaintiff must allege
facts which, if true, show that the defendants perceived facts from
which

to

infer

substantial

risk

to

the

plaintiff;

that

the

defendant did in fact draw that inference and that the defendant
then disregarded that risk. Farmer v. Brennan 511 U.S. 825 (1994).
After a review of the complaint the Magistrate Judge
cannot find that the Plaintiff has alleged any facts against
Defendants Handy, Rosenbalm, Barnett and Leonard that allow such a
conclusion. The Plaintiff has simply alleged that these Defendants
lost his blood. However, there is no showing that the loss of blood
caused the Plaintiff any serious harm or was ignored by these

5

Defendants. In its initial review the Court determined that the
Plaintiff’s claim against similar Defendants regarding the alleged
loss of the Plaintiff’s blood failed to state a claim (Docket Entry
9).
In fact, in reviewing the grievances and responses to the
grievances, the Plaintiff attached his complaint, it appears that
the

Plaintiff’s

blood

was

not

lost.

There

was

simply

an

insufficient amount of the blood drawn to allow testing and when
the Plaintiff was requested to provide an additional blood draw, he
refused.
These four Defendants are entitled to a dismissal of all
claims against them in their individual capacities.
Turning next to the claims against Dr. Sidberry in his
individual capacity, the Plaintiff has made a very limited claim
against Dr. Sidberry. He simply alleges that Dr. Sidberry examined
him on June 4, 2015, and that he was already blind in his right eye
by that time. He states that he was seen by the outside eye doctor
on July 9, 2015, and that doctor diagnosed him as blind in his
right

eye.

There

is

no

allegation

that

the

Dr.

Sidberry

unreasonably failed to see him prior to that time, or that the
delay from June 4th to July 9th caused any further injury to the
Plaintiff. Accordingly, the individual capacity claims against Dr.
Sidberry should also be dismissed.
STATUTE OF LIMITATIONS
The Defendants Kish, Corriveau and Sidberry claim that

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they should be dismissed as a matter of law because the claims are
barred by the Tennessee one-year statute of limitations. The
Defendants correctly state the law that Section 1983 does not
provide its own limitation period so that federal courts apply the
personal injury statute of limitations of the state. Owens v.
Okure, 488 U.S. 235, 249-250 (1989). The statute of limitations in
Tennessee for personal injury or for damage actions brought through
the civil rights statutes is one year. T.C.A. § 28-3-104(a).
In this case the Plaintiff alleges that between June 8,
2015, and June 4, 2015, he asked the Defendants Kish and Corriveau
to see an eye doctor (Docket Entry 1, pp. 12-14). He alleges that
the two told him to go back to his cell and wash his eye out
himself. Based on the pleadings it would appear that the cause of
action against these two Defendants arose sometime on or before
June 4, 2015.
For some reason in their brief the Defendants contend
that the May 31, 2016, is the correct cutoff date. It would appear
that

this

is

incorrect.

The

end

date

under

the

Plaintiff’s

pleadings would be June 4, 2015.
The Plaintiff, in his supplemental pleadings (Docket
Entry 8 at p. 5), did identify the two nurses by their first names.
Dr. Sidberry was identified by his last name.
The Magistrate Judge understands, that as a matter of
policy of the company providing medical services to the Williamson
County Jail, the nurses are identified with name tags having only

7

their first names. This practice clearly causes problems for a
plaintiff attempting to fully identify individual Defendants. In
his pleading asking for an extension of time to complete service
(Docket Entry 43) the Plaintiff pointed out that he was attempting
to secure the full names of the individuals and attached a copy of
a letter dated February 18, 2016, from the Sheriff to him at the
jail. The Sheriff’s office did not have this information for
employees of Southern Health Partners and advised him he would need
to contact Southern Health Partners to secure their full names and
addresses. The Plaintiff did not attach any document showing that
he requested the full identification of the employees from Southern
Health Partners.
The Magistrate Judge would note that when he finally
directed Southern Health Partners to provide the full names and
addresses of the employees that the Plaintiff had previously
identified (Docket Entry 44) on July 1, 2016, they promptly
provided the information on July 7, 2016, and service of process
was issued. The Plaintiff has provided no information as to why he
did not make the request himself while he was still well within the
statute

of

limitations

period.

The

Plaintiff

was

provided

information in February as to how obtain the correct names. There
is no indication that he followed up or was refused. Had there been
any indication of any further effort by the Plaintiff or delay by
Southern Health Partners the Magistrate Judge would be willing to
apply tolling given the fact that the Defendants are not using full

8

names on their identification badges or providing a badge number,
which would provide definite identification. Even a plaintiff in
custody must make a reasonable effort to obtain the necessary
information, particularly having been placed on notice by the
District Judge’s order of the need to do so in January 2016 (Docket
Entry 10).
Under these circumstances, the Magistrate Judge cannot
find that the Plaintiff has shown sufficient efforts to justify
tolling. See Pike v. United States of America, 868 F.Supp.2d 667
(M.D. Tenn. 2012). Failure to identify the Defendants within the
statute of limitations is fatal to his case. The Sixth Circuit has
held a mistake in identification does not relate back to the filing
of the complaint. Cox v. Treadway, 75 F.3d 230, 240 (6th Cir. 1996).
MALPRACTICE CLAIMS
To the extent the Plaintiff alleges malpractice claims
against the Defendants Kish, Corriveau, and Sidberry, they are also
subject to dismissal. There is no allegation of diversity of
citizenship and from the record it would appear that all Defendants
and the Plaintiff are residence of Tennessee.
Case law is clear that malpractice claims do not fall
under Section 1983 as constitutional claims. Even if somehow there
was diversity in this case the Plaintiff has made no allegations
whatever that he has complied with the provisions of the Tennessee
Healthcare

Liability

Act,

T.C.A.

§

29-26-122(a)

and

filed

a

certificate of good faith with the complaint as required by T.C.A.

9

§ 29-26-122(a)(1). Failure to file such a certificate makes the
complaint subject to dismissal with prejudice. T.C.A. § 29-26122(c). To the extent the Plaintiff has attempted to allege
malpractice against these three Defendants, failure to file a
certificate is fatal. Myers v. AMISUB, 382 S.W.3d 300, 311-12
(Tenn. S. Ct. 2014).
RECOMMENDATION
For

the

reasons

stated

above,

the

Magistrate

Judge

recommends that all claims be dismissed with prejudice and that any
appeal from such a dismissal not be certified as taken in good
faith.
Under Rule 72(b) of the Federal Rules of Civil Procedure,
any

party

has

14

days

from

receipt

of

this

Report

and

Recommendation in which to file any written objections to this
Recommendation with the District Court. Any party opposing said
objections shall have 14 days from receipt of any objections filed
in this Report in which to file any responses to said objections.
Failure to file specific objections within 14 days of receipt of
this Report and Recommendation can constitute a waiver of further
appeal of this Recommendation. Thomas v. Arn, 474 U.S. 140 106 S.
Ct. 466, 88 L.Ed.2d 435 (1985), Reh’g denied, 474 U.S. 1111 (1986).
ENTER this 30th day of November, 2016.
/s/
Joe B. Brown
JOE B. BROWN
United States Magistrate Judge

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