Kirby v. Mazes et al

Filing 12

MEMORANDUM OPINION OF THE COURT. Signed by Chief Judge Waverly D. Crenshaw, Jr on 10/20/2017. (xc:Pro se party by regular 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
CHRISTOPHER KIRBY,
No. 0571547,

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Plaintiff,
v.
TONY MAYES, et al.,
Defendants.

No. 3:17-cv-01027
CHIEF JUDGE CRENSHAW

MEMORANDUM
Plaintiff, an inmate of the Bledsoe County Correctional Complex in Pikeville, Tennessee,
brings this pro se, in forma pauperis action under 42 U.S.C. § 1983, the Americans with Disabilities
Act, 42 U.S.C. § 12131, et seq. (ADA), and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.
§ 794(a) (Rehabilitation Act) against Tony Mays, Ernest Lewis, Carolyn Jordan, Frank Heroux,
Michael Ward, Charles Sidberry, Tom Rushing, f/n/u Smith, f/n/u Green, f/n/u Davis, f/n/u
McGlasson, f/n/u Shoa, and the Tennessee Department of Correction (TDOC), alleging violations
of the Plaintiff’s federal civil and constitutional rights. (Doc. No. 1). As relief, the Plaintiff seeks
compensatory damages and injunctive relief. (Id. at 28).
The complaint is before the Court for an initial review pursuant to the Prison Litigation
Reform Act (“PLRA”), 28 U.S.C. §§ 1915(e)(2) and 1915A.
I.

PLRA Screening Standard
Under 28 U.S.C. § 1915(e)(2)(B), the court must dismiss any portion of a civil complaint

filed in forma pauperis that fails to state a claim upon which relief can be granted, is frivolous, or
seeks monetary relief from a defendant who is immune from such relief. Section 1915A similarly
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requires initial review of any “complaint in a civil action in which a prisoner seeks redress from a
governmental entity or officer or employee of a governmental entity,” id. § 1915A(a), and summary
dismissal of the complaint on the same grounds as those articulated in § 1915(e)(2)(B). Id. §
1915A(b).
The Sixth Circuit has confirmed that the dismissal standard articulated by the Supreme Court
in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007),
“governs dismissals for failure to state a claim under those statutes because the relevant statutory
language tracks the language in Rule 12(b)(6).” Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir.
2010). Thus, to survive scrutiny on initial review, “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at
678 (quoting Twombly, 550 U.S. at 570). “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.” Id. (citing Twombly, 550 U.S. at 556). “[A] district court must (1) view
the complaint in the light most favorable to the plaintiff and (2) take all well-pleaded factual
allegations as true.” Tackett v. M & G Polymers, USA, LLC, 561F.3d 478, 488 (6th Cir. 2009)
(citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (citations omitted)).
Although pro se pleadings are to be held to a less stringent standard than formal pleadings
drafted by lawyers, Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Jourdan v. Jabe, 951 F.2d 108,
110 (6th Cir. 1991), the courts’ “duty to be ‘less stringent’ with pro se complaints does not require
us to conjure up [unpleaded] allegations.” McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979)
(citation omitted).

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II.

Alleged Facts
According to the complaint, the Plaintiff is confined to a wheelchair. In October 2016, the

Plaintiff was confined in the Riverbend Maximum Security Institution (“Riverbend”) in Nashville,
Tennessee, in a unit without handicapped-accessible shower, ramps, or handrails. (Doc. No. 1 at
6). As a result, the Plaintiff had difficulty transferring himself in and out his wheelchair and into
the shower and onto the toilet. Upon his placement in this unit, the Plaintiff contacted Ernest Lewis,
acting Associate Warden of Security, and Tony Mays, Warden, and asked for reassignment to an
accessible unit. The Plaintiff received no response.
The Plaintiff was classified as “limited activity” due to his confinement to a wheelchair.
Tom Rushing, who oversees inmate classification at Riverbend, was notified of the Plaintiff’s
classification but he refused to accommodate the Plaintiff’s disability by recommending that the
Plaintiff be housed in an accessible unit. (Id. at 3). The Plaintiff sent multiple written requests to
Defendants Lewis and Mays asking to be transferred to a handicapped-accessible location. Neither
Defendant responded, and the Plaintiff remained in the same unit. (Id. at 7-8).
The Plaintiff contacted the medical department, stating that he was “in need of a real shower
chair and handrails in the shower to safely take a shower.” (Id. at 8). Although medical staff
responded by ordering a medical shower chair for the Plaintiff and promising to notify the Warden
of the Plaintiff’s situation, the Plaintiff had to shower for weeks without the chair or handrails and
“almost fell 3 times,” which caused the Plaintiff to experience pain. (Id.)

When the Plaintiff

returned to the medical department, a staff member prescribed the Plaintiff pain medication and told
the Plaintiff the Warden would be notified again of the Plaintiff’s need for accommodations.

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On May 7, 2017, still housed in the same unit, the Plaintiff fell while attempting to transfer
himself onto the toilet. As a result of the fall, he sustained injuries to his head and back. During his
examination by physicians assistant Shao, the Plaintiff stated that his current pain medication was
not strong enough. Shao refused to prescribe the Plaintiff stronger pain medication. (Id. at 8).
The Plaintiff sent sick call requests on May 14, 2017, May 15, 2017, and May 18, 2017, due
to pain, loss of appetite, and insomnia; however, he was not permitted to return to the medical
department. (Id. at 9). He asked Unit Manager Davis to assist him with obtaining medical treatment
and a transfer to a housing unit equipped to meet the needs of inmates with ambulatory disabilities.
Davis told the Plaintiff he was unable to help without the permission of the Unit Manager. (Id. at
9).
On May 22, 2017, the Plaintiff was permitted to see a nurse who placed the Plaintiff on a
physician referral list. (Id.) On that same day, the Plaintiff “was taken out of [his] cell to be given
a shower in the same non-handicap shower . . . .” (Id.) The Plaintiff asked Corporal of Operations
f/n/u Smith to assist him in entering the shower, and Smith replied: “It was not his job to help the
handicap [sic], and [the Plaintiff] need[ed] to grow up and stop being a baby and more of a man.”
(Id.) While returning to the Plaintiff’s cell, the Plaintiff told Smith he was going to “write him up”
for Smith’s comments. Smith “became upset and maliciously push[ed] [the Plaintiff’s] wheelchair
real hard and fast, slamming [the Plaintiff] face first into the concret[e] wall.” (Id.) The Plaintiff
sustained a black eye and a “whip lash” back injury. (Id.)
The Plaintiff attempted to obtain medical attention for his injuries over the next seven hours
but Smith refused to let the Plaintiff out of his cell. (Id. at 10). Smith gave the Plaintiff an ice bag
and threatened the Plaintiff’s safety if he told anyone what had happened. When the Plaintiff told

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Sergeant of Operations Michael Ward about the incident, Ward told the Plaintiff he was “full of shit”
and refused to let the Plaintiff see a nurse or doctor. (Id.) On the following day, Smith returned to
the Plaintiff’s cell and threatened “that he would have [the Plaintiff] fucked off if [he] told.” (Id.)
Davis responded to the Plaintiff’s request for medical attention by sending a nurse to the
Plaintiff’s cell to evaluate him. During the Plaintiff’s examination, Ward sent an officer into the
Plaintiff’s cell to listen to his conversation with the nurse. (Id. at 11). Corrections Officer f/n/u
McGlasson called the Plaintiff a “snich” [sic] and said he “would get what [he] had coming.” (Id.)
Shortly thereafter, Ward confronted the Plaintiff in the company of McGlasson, and the two
officers “became upset and aggressive . . . .” (Id.) They picked the Plaintiff up in his wheelchair
and slammed the wheelchair to the floor; McGlasson also choked the Plaintiff. (Id.) The Plaintiff
bit McGlasson to stop him from choking the Plaintiff, and the Plaintiff states that he was disciplined
for biting McGlasson and has “taken responsibility for [his] action . . . but that dose [sic] not give
[McGlasson] a right to slam a person that is fully secure, in full restraints, who is disabled and
confined to a wheelchair, and then chooke [sic] him.” (Id. at 12).
The Plaintiff subsequently was transferred to another unit; however, that unit did not contain
an handicapped-accessible shower either. (Id.) There, the Plaintiff received one shower in fifteen
days. The Plaintiff continued to write grievances and seek assistance with gaining access to an
accessible shower. He also verbally requested a transfer to f/n/u Fish and informed Lewis, Fish, and
Mays of the attack by Ward and McGlasson. (Id.)

The Plaintiff was briefly transferred to the

infirmary, which had a handicapped-accessible shower. (Id. at 13).
The Plaintiff filed a grievance against Mays, Lewis, Jordan, Davis, Smith, and Shoa. (Id.)
After filing the grievance, Mays, Lewis, and Jordan retaliated against the Plaintiff with the

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assistance of Heroux by moving the Plaintiff into a suicide cell. (Id. at 14). The cell was flooded
with “foul smelling sewage water.” (Id. at 15). The inmate who had been in the cell just prior to
the Plaintiff had flooded the cell with human waste and toilet water and had “smeared stuff all over
the cell walls as well as cut his stomake [sic] with a shaving razor blade and placed blood on the
food trap.” (Id. at 14).

Because the Plaintiff could not lift himself or his property and no one

would assist him, he slept on the floor with his mattress “soaking up the foul smelling sewage water
and contaminating” the Plaintiff’s blanket. (Id. at 15). When the Plaintiff asked Lewis to be moved
out of the suicide cell because he could not transfer himself into the shower and was unable to reach
the button for turning the shower off and on, Lewis told the Plaintiff: “If you don’t like it, drop your
tittle [sic] VI grievance.” (Id. at 16).
The Plaintiff fell off the toilet on June 12, 2017. (Id.) He was unable to shower for twelve
days. (Id.) The Defendants refused to the move the Plaintiff out of the mental health unit even when
he complained that the conditions of his confinement were causing him to have suicidal thoughts.
(Id. at 17). On June 22, 2017, the Plaintiff attempted suicide by overdosing on medication,
swallowing two razor blades, and placing a metal foreign object “inside of [his] urine track to try
to shut down [his] kidneys.” (Id. at 18). Even so, Defendant Dr. Sidberry refused to send the
Plaintiff to an outside hospital or address the Plaintiff’s pain, and he left the Plaintiff lying on the
floor with no mattress or clothing. (Id.)
After twenty hours passed, the Plaintiff was taken to a hospital emergency room and
underwent two surgeries. (Id.) The Plaintiff was treated at the hospital for four days. (Id.) Upon
his release, the Plaintiff was returned to the mental health unit and, despite his continued requests
to be moved to a handicapped-accessible unit, was not moved. However, on August 27, 2017, the

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Plaintiff was transferred to the Bledsoe County Correctional Complex, a facility that houses
wheelchair-confined inmates in accessible cells. (Doc. No. 10).
III.

Analysis
The Plaintiff brings his federal claims pursuant to 42 U.S.C. § 1983, the ADA, and the

Rehabilitation Act.
A.

ADA and Rehabilitation Act claims against Defendants Mays, Lewis, Jordan,
Heroux, Green, Davis, and Rushing

The complaint names Mays, Lewis, Jordan, Heroux, Green, Davis and Rushing as
Defendants to the Plaintiff’s claims under Title II of the Americans with Disabilities Act, 42 U.S.C.
§ 12131, et seq., and Section 504 of the Rehabilitation Act of 1973.
The ADA prohibits public entities from discriminating against a qualified individual with
a disability on account of that disability in the operation of services, programs, or activities. 42
U.S.C. § 12131(1); Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210 (1998). The ADA
is applicable to state and local government entities, including prisons and county jail facilities. See
Yeskey, 524 U.S. at 210 (holding that the term “public entity” includes prison facilities); Tucker v.
Tenn., 539 F.3d 526, 529 (6th Cir. 2008). Title II's implementing regulations provide that “[a]
public entity shall make reasonable modifications in policies, practices, or procedures when the
modifications are necessary to avoid discrimination on the basis of disability, unless the public entity
can demonstrate that making the modifications would fundamentally alter the nature of the services,
program, or activity.” 28 C.F.R. § 35.130(b)(7).
To establish a prima facie case under the ADA, a plaintiff must show that: (1) he has a
disability; (2) he is otherwise qualified; and (3) he is being excluded from participating in, being
denied the benefits of, or being subjected to discrimination under the program solely because of his
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ability. Anderson v. City of Blue Ash, 798 F.3d 338, 357 (6th Cir. 2015). Title II of the ADA
authorizes suits by private citizens for money damages against public entities that violate § 12132.
United States v. Georgia, 546 U.S. 151, 160 (2006)(holding that Title II of the ADA validly
abrogated state sovereign immunity insofar as it created a private cause of action for damages
against the States for conduct that actually violates the Fourteenth Amendment).
The proper defendant to a suit under Title II of the ADA is the public entity or an official
acting his or her official capacity. Everson v. Leis, 556 F.3d 484, 501 n.7 (6th Cir. 2009). “Title II
of the ADA does not, however, provide for suit against a public official in his individual capacity.”
Everson, 556 F.3d at 501 n.7; see also Williams v. McLemore, 247 F. App'x 1, 8 (6th Cir. 2007)
(“[T]he ADA does not provide for personal liability for defendants sued in their individual
capacities. . . . We have held repeatedly that the ADA does not permit public employees or
supervisors to be sued in their individual capacities.”). Therefore, the Plaintiff’s ADA claims
against the named Defendants in their individual capacities must be dismissed.
Although the complaint does not list TDOC as a Defendant to the Plaintiff’s ADA claims,
the complaint names TDOC as a Defendant to this action. Given the liberal construction afforded
to pro se complaints, and the requirement that the Court construes all well-pleaded allegations in the
light most favorable to the Plaintiff, the Court finds that the Plaintiff's allegations state an ADA
claim against TDOT. See 28 C.F.R. § 35.133(a) (requiring public entities to “maintain in operable
working condition those features of facilities and equipment that are required to be readily accessible
and usable by persons with disabilities” as provided for by the ADA or the regulations implementing
the ADA); see also Kutrip v. City of St. Louis, 329 Fed.Appx. 683 (8th Cir. 2009) (denying
summary judgment where facts issue remained on ADA claim regarding jail officials' denial of

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disabled-accessible shower and shower chair to obviously disabled inmate); Doker v. Montgomery
County Jail, No. 3:17-cv-00947, 2017 WL 3172745, at *3 (M.D. Tenn. July 26, 2017)(Trauger,
J.)(on initial review under PLRA, finding a colorable ADA claim against the county based on
inmate’s confinement to cell not equipped to meet his needs while he was confined to a wheelchair);
Schmidt v. Odell, 64 F. Supp.2d 1014, 1032 (D. Kan. 1999)(denying summary judgment on inmate’s
ADA claim against jail where plaintiff, a double amputee, was not provided a wheelchair and had
to crawl and push himself about the jail on the floor; “The fact the plaintiff was actually able to use
most of the jail services does not preclude his claim in light of the fact that he was able to do so only
by virtue of exceptional and painful exertion which was contrary to physician’s instructions
concerning his disability.”). Therefore, the Court finds that the Plaintiff’s ADA claim against TDOC
will proceed for further development.
Next, section 504 of the Rehabilitation Act of 1973 (Rehabilitation Act) provides that “[n]o
otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be
excluded from the participation in, be denied the benefits of, or be subjected to discrimination under
any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). To establish a
claim under the Rehabilitation Act, a plaintiff must prove (1) that he is a “handicapped person”
under the Act; (2) that he is “otherwise qualified”; (3) that he is being excluded from participation
in, being denied the benefits of, or being subjected to discrimination under the program solely
because of his handicap; and (4) that the program or activity receives federal funds. Burns v. City
of Columbus, 91 F.3d 836, 840–41 (6th Cir.1996) (citing Doherty v. S. Coll. of Optometry, 862 F.2d
570, 573 (6th Cir.1988)). If a plaintiff establishes a prima facie case under the Rehabilitation Act,
the burden shifts to the defendant to show that the defendant's decision was reasonable under the

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circumstances. Id.
Generally speaking, because both the Rehabilitation Act and the ADA prohibit
discrimination on the basis of disability, the jurisprudence regarding both statutory schemes has
developed in tandem, and the claims are frequently considered as coextensive with each other. See,
e.g., Thompson v. Williamson Cnty., 219 F.3d 555, 557 (6th Cir. 2000) (given the similarity
between the ADA and the RA, claims brought under both statutes can be analyzed together);
Andrews v. Ohio, 104 F.3d 803, 807 (6th Cir.1997) (“Because the standards under both of the acts
are largely the same, cases construing one statute are instructive in construing the other.”).
The Sixth Circuit Court of Appeals has held that the Rehabilitation Act does not impose
personal liability upon individuals. Hiler v. Brown, 177 F.3d 542, 546 (6th Cir.1999) (citing EEOC
v. AIC Sec. Investigations, Ltd., 55 F.3d 1276, 1279-81 (7th Cir.1995)). Therefore, the Plaintiff's
claims under these statutes apply, if at all, against the state or its agencies, and Plaintiff may not
assert a claim against the named Defendants individually pursuant to the Rehabilitation Act. For
the same reasons the Court construes the pro se complaint to allege an ADA claim against TDOC,
the Court construes the complaint to allege a claim against TDOC under the Rehabilitation Act.
This claim will proceed for further development.
B.

Excessive force claims against Defendants Smith, Ward, and McGlasson

The Plaintiff’s remaining claims are brought pursuant to 42 U.S.C. § 1983. Title 42 U.S.C.
§ 1983 creates a cause of action against any person who, acting under color of state law, abridges
“rights, privileges, or immunities secured by the Constitution and laws . . . .” To state a claim under
§ 1983, a plaintiff must allege and show two elements: (1) that he was deprived of a right secured
by the Constitution or laws of the United States; and (2) that the deprivation was caused by a person

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acting under color of state law. Tahfs v. Proctor, 316 F.3d 584, 590 (6th Cir. 2003); 42 U.S.C. §
1983.
The complaint alleges that Defendant Smith used excessive force when he pushed the
Plaintiff in his wheelchair face-first into a concrete wall on May 22, 2017, resulting in injuries to
the Plaintiff’s eye and back. (Doc. No. 1 at 9). The complaint also alleges that, later that month,
Defendants Ward and McGlasson picked the Plaintiff up in his wheelchair and slammed him to the
floor, and that McGlasson also choked the Plaintiff. (Id. at 11).
It appears that the Plaintiff was a convicted prisoner, not a pre-trial detainee, at the time of
the alleged use of excessive force. The legal status of an alleged victim of excessive force is
significant because the conduct of the offending officer must be analyzed under the standard
appropriate to the applicable constitutional provision. See Coley v. Lucas County, Ohio, 799 F.3d
530, 538-39 (6th Cir. 2015)(“The Supreme Court has recently clarified . . . that when assessing
pretrial detainees excessive force claims we must inquire into whether the plaintiff shows ‘that the
force purposefully or knowingly used against him was objectively unreasonable.’”)(quoting
Kingsley v. Hendrickson, ___ U.S. ___, ___ 135 S. Ct. at 2473 (2015)).
Under the Eighth Amendment, which applies to convicted prisoners, an officer’s conduct
will be found to amount to cruel and unusual punishment “when the[] ‘offending conduct reflects
an unnecessary and wanton infliction of pain.’” Cordell v. McKinney, 759 F.3d 573, 580 (6th Cir.
2014)(quoting Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011)). In examining an excessive
force claim under the Eighth Amendment, the constitutional analysis has both a subjective and an
objective component, requiring the court to determine “whether the force was applied in a good-faith
effort to maintain or restore discipline, or maliciously and sadistically to cause harm,” and whether

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“the pain inflicted was sufficiently serious.” Cordell, 759 F.3d at 580 (internal quotation marks and
citations omitted) (alteration added). The heightened Eighth Amendment standard acknowledges
that “‘[t]he maintenance of prison security and discipline may require that inmates be subjected to
physical contact actionable as assault under common law.’” Id. (quoting Combs v. Wilkinson, 315
F.3d 548, 556 (6th Cir. 2002))(alteration in original).
In determining whether the force used was applied in a good faith effort to restore discipline
or rather inflicted for a malicious purpose, it is “proper to evaluate the need for application of force,
the relationship between that need and the amount of force used, the threat ‘reasonably perceived
by the responsible officials,’ and ‘any efforts made to temper the severity of a forceful response.’”
Hudson v. McMillian, 503 U.S. 1, 8, 112 S. Ct. 995, 117 L.Ed.2d 156 (1992) (quoting Whitley v.
Albers, 475 U.S. 312, 321, 106 S. Ct. 1078, 89 L.Ed.2d 251 (1986)).
“While the extent of a prisoner's injury may help determine the amount of force used by the
prison official, it is not dispositive of whether an Eighth Amendment violation has occurred.”
Cordell, 759 F.3d at 581 (citing Wilkins v. Gaddy, 559 U.S. 34, 37, 130 S. Ct. 1175, 175 L.Ed.2d
995 (2010)). “‘When prison officials maliciously and sadistically use force to cause harm,
contemporary standards of decency always are violated . . . [w]hether or not significant injury is
evident.’ ” Cordell, 759 F.3d at 581 (quoting Hudson v. McMillian, 503 U.S. 1, 9, 112 S. Ct. 995,
117 L.Ed.2d 156 (1992)) (alteration in original). De minimus uses of physical force are generally
excluded from recognition under an Eighth Amendment analysis, “provided the use of force is not
of a sort ‘repugnant to the conscience of mankind.’” Hudson, 503 U.S. at 10, 112 S. Ct. 995 (quoting
Whitley v. Albers, 475 U.S. 312, 318–22, 106 S. Ct. 1078, 89 L.Ed.2d 251 (1986)). “The absence
of serious injury is . . . relevant to the Eighth Amendment inquiry, but does not end it.” Id. at 8, 112

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S. Ct. 995. In the end, a determination of what constitutes “unnecessary and unwanton infliction of
pain,” is “contextual and responsive to contemporary standards of decency.” Hudson, 503 U.S. at
8, 112 S. Ct. 995.
Based on the allegations in the complaint, the Court finds that the Plaintiff states Eighth
Amendment excessive force claims under § 1983 against Defendants Smith, Ward, and McGlasson
in their individual capacities. Although it is unclear whether the Plaintiff will ultimately prevail on
these claims, the allegations of the complaint survive the required PLRA’s screening and warrant
further factual development.
C.

Medical needs claims against Defendants Shao and Sidberry

The complaint names Physician’s Assistant Shao and Dr. Charles Sidberry as Defendants
to the Plaintiff’s Eighth Amendment claims alleging deliberate indifference to his serious medical
needs. The United States Supreme Court has held that deliberate indifference to serious medical
needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth
Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). A claim of deliberate indifference under
the Eighth Amendment has both an objective and subjective component. Rouster v. Cnty. of
Saginaw, 749 F.3d 437, 446 (6th Cir. 2014). A plaintiff satisfies the objective component by alleging
that the prisoner had a medical need that was “sufficiently serious.” Id. (quoting Farmer v. Brennan,
511 U.S. 825, 834 (1994)). A plaintiff satisfies the subjective component “by alleging 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.” Id. The requisite intent is more than mere negligence and is more akin to recklessness.
Id.

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Complaints of malpractice or allegations of negligence are insufficient to entitle plaintiff to
relief. Estelle, 429 U.S. at 105-06. A prisoner’s difference of opinion regarding diagnosis or
treatment also does not rise to the level of an Eighth Amendment violation. Id. at 107. Further,
where a prisoner has received some medical attention, but disputes the adequacy of that treatment,
the federal courts are reluctant to second-guess the medical judgments of prison officials and
constitutionalize claims that sound in state tort law. Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th
Cir. 1976). Finally, to set forth a viable claim for the denial of medical care, the plaintiff must argue
that his health suffered as a consequence of such alleged denial. See Thaddeus-X v. Blatter, 175
F.3d 378, 401 (6th Cir. 1999).
As to Defendant Shao, the complaint alleges that, on May 7, 2017, after the Plaintiff fell and
sustained injuries to his head and back, Shao examined the Plaintiff but refused to provide the
Plaintiff with stronger pain medication. (Doc. No. 1 at 8). These allegations do not support a claim
of deliberate indifference to the Plaintiff’s serious medical needs by Shao. See Estelle, 429 U.S. at
107; Westlake, 537 F.2d at 860 n.5. Therefore, the Plaintiff’s Eighth Amendment claim against
Shao will be dismissed.
As to Dr. Sidberry, the Court finds that the medical problems resulting from the Plaintiff’s
suicide attempt on June 22, 2017, constituted a sufficiently serious medical need. See Rouster, 749
F.3d at 446. As to Dr. Sidberry’s state of mind, the complaint alleges that Dr. Sidberry provided no
medical assistance to the Plaintiff after confirming the presence of dangerous foreign objects in the
Plaintiff’s body with x-rays and, instead, left the Plaintiff naked on a cold concrete floor for twenty
hours. The Court finds that these allegations, “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

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draw the inference, and that he then disregarded that risk.” Id. Consequently, the Plaintiff’s claim
against Dr. Sidberry in his individual capacity states an Eighth Amendment claim upon which relief
can be granted, and this claim shall proceed.
D.

Retaliation claims against Defendants Mays, Lewis, Jordan, Heroux, and Green

The complaint names Mays, Lewis, Jordan, Heroux, and Green as Defendants to the
Plaintiffs’ retaliation claims. (Doc. No. 1 at 14). A prisoner's claim that prison officials have
retaliated against him for engaging in protected conduct is grounded in the First Amendment.
Thaddeus-X v. Blatter, 175 F.3d 378, 388 (6th Cir. 1999) (en banc). To establish a prima facie case
of retaliation within the context of § 1983, a plaintiff must prove that: (1) he engaged in protected
conduct; (2) an adverse action was taken against him that would deter a person of ordinary firmness
from continuing to engage in that conduct; and (3) the defendant’s conduct was substantially
motivated at least in part by retaliation for the plaintiff’s protected speech and conduct. Id. at 39499. In addition to proving a retaliatory motive, the plaintiff must establish that the alleged
discriminatory action was punitive in nature by showing other than de minimis harm resulting from
it. See Ingraham v. Wright, 430 U.S. 651, 674 (1977); Thaddeus-X, 175 F.3d at 396.
The complaint specifically alleges that Defendants Mayes, Lewis, Jordan, and Heroux
retaliated against the Plaintiff for complaining about them in his “tittle VI” grievances. (Doc. No.
1 14). The complaint alleges that Defendant Green was present when the other Defendants, in an
act of retaliation, moved the Plaintiff from a handicapped-accessible infirmary cell to a nonaccessible suicide cell; it is unclear whether Green assisted with the move. (Id.) The complaint
further alleges that these Defendants chose this particular cell for the Plaintiff because it had been
soiled by the previous occupant and refused to assist the Plaintiff with moving himself or his

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property, intentionally causing the Plaintiff to sleep on the filthy, wet cell floor. Although it is
unclear at this early state of the proceedings whether the Plaintiff ultimately can prevail on his
retaliation claims, the Court finds that the Plaintiff’s allegations of retaliation withstand the required
frivolity review. These § 1983 retaliation claims will be permitted to proceed for further
development against Defendants Mayes, Lewis, Jordan, Heroux, and Green in their individual
capacities.
E.

Conditions of confinement claims against Defendants Mays, Lewis, Jordan,
Heroux, Green, and Davis

Next, the complaint names Mays, Lewis, Jordan, Heroux, Green, and Davis as Defendants
to the Plaintiff’s Eighth Amendment conditions of confinement claims. The Eighth Amendment
“imposes duties on [prison] officials, who must provide humane conditions of confinement; prison
officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and
must ‘take reasonable measures to guarantee the safety of the inmates.’” Farmer v. Brennan, 511
U.S. 825, 832 (1994)(collecting cases); Grubbs v. Bradley, 552 F. Supp. 1052, 1119-1124 (M.D.
Tenn. 1982). The failure to provide such necessities is a violation of an inmate’s right to be free
from cruel and unusual punishment. Bellamy v. Bradley, 729 F.2d 416 (6th Cir. 1984).
Here, the Plaintiff’s claims against Mays and Lewis are premised, at least in part, on these
Defendants’ failure to place or transfer the Plaintiff to a handicapped-accessible cell. As to
Defendants Jordan, Heroux, Green, and Davis, the Plaintiff’s claims are premised on the alleged
retaliatory transfer of the Plaintiff from his handicapped-accessible cell to a non-accessible suicide
cell that was contaminated with filth.
The Eighth Amendment protects against conditions of confinement that constitute serious
health or safety threats, but not against those that cause mere discomfort or inconvenience. Hudson
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v. McMillian, 503 U.S. 1, 8 (1992). An inmate “cannot expect the amenities, conveniences and
services of a good hotel.” Harris v. Fleming, 839 F.2d 1232, 1235 (7th Cir. 1988), quoted in
Thaddeus–X v. Blatter, 175 F.3d 378, 405 (6th Cir. 1999). While prison conditions may be
“restrictive and even harsh,” they do not violate the constitution unless they “deprive inmates of the
minimal civilized measure of life's necessities.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981).
“Not every unpleasant experience a prisoner might endure while incarcerated constitutes cruel and
unusual punishment within the meaning of the Eighth Amendment.” Ivey v. Wilson, 832 F.2d 950,
954 (6th Cir. 1987) (per curiam). In the context of a conditions-of-confinement claim, only extreme
deprivations can be characterized as punishment prohibited by the Eighth Amendment. Hudson v.
McMillian, 503 U.S. 1, 8-9 (1992). For challenged jail conditions to qualify as extreme, they must
have resulted in “the deprivation of [at least one] identifiable human need such as food, warmth, or
exercise— for example, a low cell temperature at night combined with a failure to issue blankets.”
Wilson v. Seiter, 501 U.S. 294, 304 (1991). The Plaintiff's allegations about the lack of cleanliness
in the suicide cell, combined with the Defendants’ alleged knowledge that the Plaintiff would be
unable to move himself off the dirty floor due to his ambulatory limitations, may rise to that level.
Further, in the Eighth Amendment context, “a violation of a federally secured right is
remediable in damages only upon proof that the violation proximately caused injury.” Horn v.
Madison Cnty. Fiscal Court, 22 F.3d 653, 659 (6th Cir. 1994). Besides the long-standing legal
requirement of an “injury” in case law concerning prisoner complaints, Congress acted to further
limit prisoner suits to only a specific kind of injury. Under the PLRA, a lawsuit brought by an
institutionalized person requires a “physical” injury in order to permit recovery: “No Federal civil
action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for

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mental or emotional injury suffered while in custody without a prior showing of physical injury.”
42 U.S.C. § 1997e(e). The physical injury need not be significant, but it must be more than de
minimis for an Eighth Amendment claim to proceed. See Adams v. Rockafellow, 66 Fed.Appx. 584,
586 (6th Cir. 2003) (citing Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997)). The Court finds
that, for purposes of the PLRA screening, the allegations of the complaint are sufficient to satisfy
the requirement for an injury arising from the lack of sanitation of the suicide cell. Therefore, the
Plaintiff has stated an Eighth Amendment claim in this regard.
The Plaintiff's claims about his being confined for months in a cell not equipped to address
his needs as an inmate confined to a wheelchair are even more concerning. “As a society, we have
grown increasingly sensitive to the need to accommodate individuals with disabilities,” and courts
have repeatedly found that the failure to provide handicapped-accessible facilities to inmates may
violate the Constitution. Stoudemire v. Michigan Dept. of Corr., 614 Fed.Appx. 798, 803 (6th Cir.
2015) (quoting Frost v. Agnos, 152 F.3d 1124, 1129 (9th Cir. 1998)). The safety risks associated
with confining a handicapped inmate in a cell not equipped for his needs has a level of
“obviousness” sufficient to satisfy the objective and subjective elements of a claim for deliberate
indifference. Id. at 803-04. Moreover, with regard to Defendants Mays, Lewis, Jordan, Heroux,
Green, and Davis, the complaint alleges that these Defendants intentionally moved the Plaintiff into
a non-handicapped accessible cell in retaliation for the Plaintiff having filed grievances against
them; these allegations support a claim of deliberate indifference. Therefore, the Court finds that
the complaint states actionable Eighth Amendment conditions of confinement claims against
Defendants Mays, Lewis, Jordan, Heroux, Green, and Davis in their individual capacities based on
their roles in the Plaintiff’s placement in non-handicapped accessible cells while housed at

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Riverbend.

F.

TDOC

Finally, the complaint alleges that TDOC violated the Plaintiff’s “right to be free from
interference with court access, by implimenting [sic] prison policy’s [sic] that unjustifiably obstruct
the ability to meet the Exhaustion of Administrative Remedies standards.” (Doc. No. 1 at 5).
The Plaintiff filed numerous grievances and complaints regarding his confinement in a nonaccessible cell at Riverbend. Although the Plaintiff may feel that his grievances were not taken
seriously or handled properly, a plaintiff cannot premise a § 1983 claim on allegations that the an
institution’s grievance procedure was inadequate and/or unresponsive because there is no inherent
constitutional right to an effective grievance procedure in the first place. See Hewitt v. Helms, 459
U.S. 460, 467 (1983)(overruled in part on other grounds by Sandin v. Conner, 515 U.S. 472 (1995));
Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996); Adams v. Rice, 40 F.3d 72, 75 (4th Cir.
1994); Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991). Because a prisoner does not have a
constitutional right to an effective or responsive grievance procedure, any claim raised by the
Plaintiff based on TDOC’s failure to respond to his grievances does not state a claim upon which
relief can be granted.
To the extent that the Plaintiff claims that TDOC did not follow its own policies and thereby
thwarted the Plaintiff from pursuing his administrative remedies, procedural requirements alone do
not create a substantive liberty interest, and mere violation of such procedures is not a constitutional
violation. Hewitt v. Helms, 459 U.S. 460, 471 (1983); Levin v. Childers, 101 F.3d 44, 46 (6th
Cir.1996) (“there is a fundamental logical flaw in viewing the process as a substantive end in

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itself”); Harrill v. Blount County, Tenn., 55 F.3d 1123, 1125 (6th Cir. 1995) (state law cannot create
a federal constitutional right); Spruytte v. Walters, 753 F.2d 498, 508 (6th Cir.1985) (violation of
state law does not by itself constitute deprivation of due process). After Sandin, it is clear that
mandatory language in prison regulations does not create a liberty interest protected by the due
process clause. Rimmer–Bey v. Brown, 62 F.3d 789, 790-91 (6th Cir. 1995). Thus, to the extent that
the complaint asserts that TDOC did not comply with its own regulations to the Plaintiff’s detriment,
the Plaintiff has not suffered any deprivation of due process because of such noncompliance.
To the extent that the complaint alleges TDOC interfered with the Plaintiff’s right to access
to courts, the law is well settled that a prisoner has a First Amendment right of access to the courts.
Bounds v. Smith, 430 U.S. 817, 821-823 (1977). The right of access to the courts requires prison
officials to ensure that inmates have access to the courts that is “adequate, effective and
meaningful.” Id. at 822. To ensure the meaningful exercise of this right, prison officials are under
an affirmative obligation to provide inmates with access to an adequate law library, Walker v.
Mintzes, 771 F.2d 920, 931 (6th Cir. 1985), or some alternative form of legal assistance. Procunier
v. Martinez, 416 U.S. 396, 419 (1974)(overruled on other grounds by Thornburgh v. Abbott, 490
U.S. 401 (1989)). Meaningful access varies with the circumstances, and prison officials are
accorded discretion in determining how that right is to be administered. Bounds, 430 U.S. at 830-31.
However, it is not enough for plaintiff simply to claim that he was denied access to the courts, or
that he did not have access to an adequate law library or to some alternate form of legal assistance.
To state a claim on which relief may be granted, plaintiff must show that a defendant’s conduct in
some way prejudiced the filing or prosecution of a legal matter. Walker, 771 F.2d at 932; Kensu v.
Haigh, 87 F.3d 172, 175 (6th Cir. 1996).

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Although the complaint alleges that TDOC interfered with the Plaintiff’s “right to be free
from interference with court access,” (Doc. No. 1 at 5), the complaint does not allege that any action
by TDOC prejudiced either the Plaintiff’s filing or prosecution of a legal matter. Thus, the
complaint fails to state an actionable claim under the First Amendment for the denial of access to
the courts. The Plaintiff’s claims against TDOC, other than the Plaintiff’s ADA and Rehabilitation
Act claims against TDOT as discussed above in Section IIIA, will be dismissed.
IV.

Conclusion
In conclusion, the Court has reviewed the complaint pursuant to the PLRA and finds that the

complaint states colorable ADA and Rehabilitation Act claims against TDOT; however, the
Plaintiff’s ADA and Rehabilitation Act claims against all other Defendants fail to state claims upon
which relief can be granted, and those claims will be dismissed. Further, the Court finds that the
complaint states colorable claims pursuant to § 1983 as follows: Eighth Amendment excessive force
claims against Smith, Ward, and McGlasson in their individual capacities; Eighth Amendment
deliberate indifference to medical needs claims against Dr. Sidberry in his individual capacity; First
Amendment retaliation claims against Mays, Lewis, Jordan, Heroux, and Green in their individual
capacities; and Eighth Amendment conditions of confinement claims against Mays, Lewis, Jordan,
Heroux, Green, and Davis in their individual capacities. These claims shall proceed for further
development of the record. 28 U.S.C. § 1915A.
However, the complaint fails to state § 1983 claims upon which relief can be granted as to
all other claims against all other named Defendants. Therefore, those claims and Defendants will
be dismissed.

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An appropriate Order will be entered.

WAVERLY D. CRENSHAW, JR.
CHIEF UNITED STATES DISTRICT JUDGE

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