Bryant v. Westbrooks et al

Filing 38

REPORT AND RECOMMENDATION: The Court respectfully RECOMMENDS that the motion to dismiss (Docket Entry No. 15) filed by Defendant Charles Sidberry be GRANTED, and that the claim brought against Defendant Sidberry be DISMISSED from this action. Signed by Magistrate Judge Barbara D. Holmes on 4/7/2017. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

WAFORD K. BRYANT
v.
BRUCE WESTBROOKS, et al.

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NO: 3:16-3011

TO: Honorable Waverly D. Crenshaw, Jr., District Judge

REPORT AND RECOMENDATION
By Order entered December 6, 2016 (Docket Entry No. 5), this prisoner civil rights action was
referred to the Magistrate Judge for pretrial proceedings under 28 U.S.C. §§ 636(b)(1)(A) and (B),
Rule 72(b) of the Federal Rules of Civil Procedure, and the Local Rules of Court.
Presently pending before the Court is the motion to dismiss (Docket Entry No. 15) filed by
Defendant Charles Sidberry. For the reasons set out below, the Court recommends that the motion be
granted.
I. BACKGROUND
Waford Bryant (“Plaintiff”) is an inmate of the Tennessee Department of Correction
(“TDOC”) confined at the Riverbend Maximum Security Institution (“RMSI”) in Nashville,
Tennessee. On November 21, 2016, he filed this action pro se and in forma pauperis against five
prison officials at the RMSI seeking relief under 42 U.S.C. § 1983 for alleged violations of his civil
rights. He alleges that his Eighth Amendment right to medical care was violated at the RMSI when
he was not appropriately treated after it was discovered that he had foreign objects lodged in his
stomach.

Specifically, Plaintiff alleges that, on May 13, 2016, RMSI Physician Dr. Charles Sidberry
(“Sidberry”) wrote an order directing that Plaintiff, who suffers from a mental illness, be transported
to an off-premises hospital after an x-ray revealed that Plaintiff had a foreign object lodged in his
stomach. See Complaint (Docket No. 1) at 7. Plaintiff alleges that RMSI Warden Bruce Westbrooks
(“Westbrooks”) disregarded Sidberry’s order and directed RMSI Captain and Chief of Security Earnest
Lewis (“Lewis”) to not transport Plaintiff to the hospital. Id. at 7-8. Plaintiff alleges that he was,
nonetheless, subsequently transported to the Nashville General Hospital on May 26, 2016, where, after
an examination and testing, the emergency room physician told the Plaintiff that the foreign object had
perforated his bowel and caused an infection, necessitating immediate, emergency surgery. Id. at 7.
Plaintiff alleges that, on August 13, 2016, he again had an x-ray taken that revealed a foreign object
lodged in his stomach. Id. at 8. He alleges that, instead of being given any treatment or being
transported to an outside hospital, he was placed in four-point restraints at the RMSI. Id. He contends
that he eventually developed a fever, which prompted emergency blood work on August 13, 2016,
showing that he again had an infection. Id. He was then transported to TDOC’s DeBerry Special
Needs Facility, where he underwent a CT-scan, and then was transported to an outside hospital. Id.
Upon initial review, the Court directed that process issue to: 1) Defendants Westbrooks and
Lewis on Plaintiff’s claim that they violated his Eighth Amendment rights by preventing him from
receiving treatment related to the May 2016 events; and 2) to Defendant Sidberry on Plaintiff’s claim
that he violated Plaintiff’ Eighth Amendment rights by failing to ensure that he was sent to an off-site
hospital on August 13, 2016, for treatment for another medial problem that caused Plaintiff’s condition
to worsen.

See Memorandum (Docket Entry No. 4) at 4. Although the Court dismissed claims

brought against two of the other prison officials named in the complaint, the Court found that the

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claims against Defendants Westbrooks, Lewis, and Sidberry should proceed for further factual
development. Id. Defendants Earnest Lewis and Bruce Westbrooks have filed an answer to the
complaint, see Docket Entry No. 32, and a scheduling order has been entered providing for a period
of pretrial activity in the action. See Docket Entry No. 34.
On January 30, 2017, Defendant Sidberry filed his motion to dismiss under Rule 12(b)(6) of
the Federal Rules of Civil Procedure in lieu of an answer. He argues that Plaintiff’s allegations fail
to support a claim that Sidberry acted with deliberate indifference to Plaintiff’s serious medical needs,
which is the standard required for an Eighth Amendment claim. See Memorandum in Support (Docket
Entry No. 16) at 3-6. He further contends that Plaintiff has not exhausted his administrative remedies
for his claim against Defendant Sidberry, as required by 42 U.S.C. § 1997e(a). Id. at 7-9. Finally,
Defendant Sidberry asserts that, to the extent that Plaintiff’s complaint can be read to assert a medical
malpractice or negligence claim under Tennessee law, the complaint does not show that Plaintiff has
complied with the pre-suit requirements necessary to pursue such a claim. Id. at 6-7. Plaintiff has not
responded to the motion to dismiss.

II. STANDARD OF REVIEW
A motion to dismiss filed under Rule 12(b)(6) of the Federal Rules of Civil Procedure is
reviewed under the standard that the Court must accept as true all of the well-pleaded allegations
contained in the complaint and construe the complaint in the light most favorable to the plaintiff.
Morgan v. Church’s Fried Chicken, 829 F.2d 10, 11-12 (6th Cir. 1987). Although a complaint need
not contain detailed factual allegations, the factual allegations supplied must be enough to show a
plausible right to relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-61, 127 S.Ct. 1955, 167

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L.Ed.2d 929 (2007) (abrogating Conley v. Gibson, 355 U.S. 41 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). See
also Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A claim has facial
plausibility when the plaintiff pleads factual content that allows the Court to draw the reasonable
inference that the defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678. In review of
the sufficiency of the complaint, the Court need not accept as true legal conclusions or unwarranted
factual inferences. See Gregory v. Shelby County, 220 F.3d 433, 446 (6th Cir. 2000).

III. CONCLUSIONS
Initially, the Court notes that nowhere in Plaintiff’s pleadings does he assert a claim under
state law. Nor did the Court in its initial review of the Complaint construe the complaint as asserting
anything other than claims brought by Plaintiff under 42 U.S.C. § 1983 for violations of his
constitutional rights. Accordingly, Defendant Sidberry’s argument regarding the inadequacy of any
state law claims is not germane to the issues raised in this case.
Plaintiff’s Section 1983 claim against Defendant Sidberry should be dismissed because
Plaintiff has not shown that the claim has been administratively exhausted. The Prison Litigation
Reform Act (“PLRA”) provides that:
No action shall be brought with respect to prison conditions under section 1983 of
this title, or any other Federal law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are available are exhausted.
42 U.S.C. § 1997e(a). This statute requires a prisoner plaintiff to exhaust all available administrative
remedies before filing a lawsuit under 42 U.S.C. § 1983 in the district court. Porter v. Nussle, 534
U.S. 516, 528, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002); Booth v. Churner, 532 U.S. 731, 733, 121 S.Ct.
1819, 149 L.Ed.2d 958 (2001); Brown v. Toombs, 139 F.3d 1102, 1103-04 (6th Cir. 1998). Although

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exhaustion is mandatory under the PLRA, the failure of a prisoner plaintiff to satisfy the exhaustion
requirement is an affirmative defense that a defendant must plead. Jones v. Bock, 549 U.S. 199, 21117, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). Once the defense of failure to exhaust is raised, a prisoner
plaintiff must present evidence to show that he has complied with the requirements of exhaustion. See
Napier v. Laurel Cnty., Ky., 636 F.3d 218 (6th Cir. 2011). To establish exhaustion of administrative
remedies, a prisoner plaintiff must show that he presented his grievance(s) “through one complete
round” of the established grievance process. Thomas v. Woolum, 337 F.3d 720, 733 (6th Cir. 2003),
abrogated on other grounds, Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006).
Further, it is well-settled that there is no futility exception to the exhaustion requirement, Booth, 532
U.S. at 741 n.6; Napier, 636 F.3d at 222, and a prisoner plaintiff cannot abandon the grievance
process.
Defendant Sidberry has raised the defense of lack of administrative exhaustion. Relying on
the exhibits Plaintiff attached to the complaint, Defendant Sidberry contends that there is no indication
that Plaintiff pursued a prison grievance about the events occurring in August 2016 upon which his
claim against Defendant Sidberry is based. Defendant Sidberry asserts that the copies of the
grievances that are attached to the complaint all pre-date the August 2016 events. See Docket Entry
No. 1 at 18-38. Plaintiff has not set forth any evidence disputing Defendant Sidberry’s affirmative
defense of lack of exhaustion and showing that he pursued and exhausted his administrative remedies
pertaining to the claim brought against Defendant Sidberry. It is Plaintiff’s burden to rebut
Defendant’s defense that he failed to exhaust. See Napier, supra. Plaintiff has not met this burden,
warranting dismissal of the claim against Defendant Sidberry. Because Plaintiff’s failure to comply
with the PLRA requires dismissal of the claim against Defendant Sidberry, it is not necessary to

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address Defendant Sidberry’s argument that Plaintiff’s allegations do not state a claim for relief under
Section 1983.

RECOMMENDATION
Based on the foregoing, the Court respectfully RECOMMENDS that the motion to dismiss
(Docket Entry No. 15) filed by Defendant Charles Sidberry be GRANTED, and that the claim brought
against Defendant Sidberry be DISMISSED from this action.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of
Court within fourteen (14) days of service of this Report and Recommendation and must state with
particularity the specific portions of this Report and Recommendation to which objection is made.
Failure to file written objections within the specified time can be deemed a waiver of the right to
appeal the District Court's Order regarding the Report and Recommendation. See Thomas v. Arn, 474
U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.
1981).

Respectfully submitted,

BARBARA D. HOLMES
United States Magistrate Judge

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