Mayes v. Sehorn et al

Filing 10

MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 11/22/2017. (xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
STEPHEN RICHARD MAYES,
# 537428,

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Plaintiff,
v.
DAVID SEHORN, et al.,
Defendants.

No. 3:17-cv-01326
Judge Trauger

MEMORANDUM
Stephen Richard Mayes, an inmate of the Lois DeBerry Special Needs Facility in Nashville,
Tennessee, brings this pro se, in forma pauperis action under 42 U.S.C. § 1983 against physician’s
assistant David Sehorn, Unit 7B Provider, Dr. Madu Nwozo, and Unit 7B Physician, alleging
violations of the plaintiff’s civil and constitutional rights. (Docket No. 1). As relief, the complaint
seeks compensatory and punitive damages. (Id. at p. 6). The plaintiff also has filed a motion for
appointment of counsel (Docket No. 3) and a “Motion Requesting Guidance and Assistance with
Case” (Docket No. 5).
I.

Motion for Appointment of Counsel
Along with the filing of his complaint, the plaintiff submitted a motion seeking the

appointment of counsel. (Docket No. 3). The Supreme Court has held that “an indigent’s right to
appointed counsel . . . exists only where the litigant may lose his physical liberty if he loses the
litigation.” Lassiter v. Dep’t of Social Servs., 452 U.S. 18, 25 (1981). Thus, unlike criminal
proceedings, there is no constitutional right to an appointed counsel in a civil action, such as this

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action. Willett v. Wells, 469 F. Supp. 748, 751 (E.D. Tenn. 1977), aff’d, 595 F.2d 1227 (6th Cir.
1979); see Williamson v. Autorama, Inc., No. 91-5759, 947 F.2d 947 (6th Cir. 1991)(citing Willett
favorably). The appointment of counsel for a civil litigant is a matter within the discretion of the
district court and will occur only under exceptional circumstances. Lavado v. Keohane, 992 F.2d
601, 604-05 (6th Cir. 1993).
The plaintiff’s circumstances as described are typical to most prisoners and do not suggest
anything exceptional in nature. The plaintiff submitted a detailed, coherent complaint. He does not
allege that he suffers from any mental defects or physical disabilities that would limit his ability to
prosecute his case. Therefore, his motion for the appointment of counsel (Docket No. 3) will be
denied.
II.

Motion Requesting Guidance and Assistance with Case
The plaintiff also submitted a motion “requesting guidance and assistance with case.”

(Docket No. 5). In his motion, the plaintiff states that he has “had two other incidents of deliberate
indifference occur since filing the complaint.” (Id. at p. 1). He states that he is “in fear of [his]
well-being” and is “afraid something will happen to [him] soon and need to get some guidance.”
(Id.)
The court must be impartial to all parties. Therefore, the court cannot give legal advice or
assistance to litigants, including pro se litigants, because the court cannot favor or appear to favor
one litigant over another litigant.
In addition, the plaintiff’s motion does not explain what “incidents” have occurred or what
specific threat(s) to the plaintiff’s health and safety are present. Without more details, the court is
unable to address the plaintiff’s unspecified concerns. The motion, therefore, will be denied.

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III.

PLRA Screening Standard
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.
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
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)).

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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).
IV.

Section 1983 Standard
The plaintiff brings his federal claims 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 acting
under color of state law. Tahfs v. Proctor, 316 F.3d 584, 590 (6th Cir. 2003); 42 U.S.C. § 1983.
V.

Alleged Facts
According to the complaint, while incarcerated at the Lois DeBerry Special Needs Facility,

David Sehorn, a physician’s assistant, diagnosed the plaintiff with shingles on March 14, 2017. He
prescribed Acyclovir, an antiviral used to treat the symptoms for shingles, as well as acetaminophen
for pain twice daily. From March 14, 2017 to March 20, 2017, the plaintiff experienced “extreme
pain that caused loss of sleep and severe physical discomfort and mental anguish . . . .” (Docket No.
1 at p. 5). On March 16, 2017, the plaintiff filled out a sick call request to be reevaluated “in order
to get a change in medication for pain . . . .” (Id.) Sehorn told the plaintiff that Acyclovir would
take five to seven days to begin working.
On March 17, 2017, Unit Nurse Paula Lampman told the plaintiff that she had spoken to Mr.

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Sehorn, and he had placed the plaintiff on bed restriction and had denied the plaintiff’s request for
a change of pain medication or an increase in the amount of pain medication. The plaintiff believes
that Sehorn “had available avenues of treatment and deliberately ignored Plaintiff’s request for
proper pain management.” (Id. at p. 6).
VI.

Analysis
The complaint alleges that the defendants failed to provide the plaintiff with proper pain

management for his shingles-related pain. To establish a violation of his Eighth Amendment
constitutional rights resulting from a denial of adequate medical care, a plaintiff must show that the
defendants were deliberately indifferent to his serious medical needs. Estelle v. Gamble, 429 U.S.
97, 106 (1976); Brooks v. Celeste, 39 F.3d 125, 127 (6th Cir. 1994). “Deliberate indifference” is the
reckless disregard of a substantial risk of serious harm; mere negligence, or even gross negligence,
will not suffice. Farmer v. Brennan, 511 U.S. 825, 835-36 (1994); Williams v. Mehra, 186 F.3d 685,
691 (6th Cir. 1999)(en banc); Westlake v. Lucas, 537 F.2d 857, 860-61 n. 5 (6th Cir. 1976); see also
Estelle, 429 U.S. at 105-06.
An Eighth Amendment claim of denial of medical care claim has both an objective and
subjective component. The objective component requires that the plaintiff’s medical needs were
sufficiently serious. See Rhodes v. Chapman, 452 U.S. 337 (1981); Hunt v. Reynolds, 974 F.2d 734,
735 (6th Cir. 1992). The subjective component requires that the defendants were deliberately
indifferent to the plaintiff’s medical needs. See Wilson v. Seiter, 501 U.S. 294 (1991); Hunt, 974
F.2d at 735.
Complaints of malpractice or allegations of negligence are insufficient to entitle a plaintiff
to relief. Estelle, 429 U.S. at 105-06. A prisoner’s difference of opinion regarding diagnosis or

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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, 537 F.2d at 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).
While the complaint names Unit 7B Provider and Unit 7B Physician as defendants to this
action, the complaint does not alleged any specific personal involvement by these defendants in the
events described in the complaint. A plaintiff must identify the right or privilege that was violated
and the role of the defendant in the alleged violation, Dunn v. Tennessee, 697 F.2d 121, 128 (6th Cir.
1982), and the plaintiff here has failed to do so with regard to the above-named defendants. Thus,
the plaintiff’s claims against defendants Unit 7B Provider and Unit 7B Physician must be dismissed.
As to defendant Sehorn, the plaintiff admits that, after Sehorn diagnosed the plaintiff with
shingles, Sehorn prescribed an antiviral medication for the plaintiff’s condition and acetaminophen
for the plaintiff’s pain. When the plaintiff sought an increase in pain medication or a change of pain
medication, Sehorn denied the plaintiff’s request, although he placed the plaintiff on bed restriction.
Thus, the plaintiff received medical treatment; he simply disagrees with Sehorn’s decision regarding
whether the plaintiff’s pain medication should be changed or increased.
Although the plaintiff disagrees with the manner in which he was treated, a prisoner’s
disagreement with a course of medical treatment does not state a federal constitutional claim.
Furthermore, even if the plaintiff’s medical treatment was allegedly deficient in some manner,

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“[m]edical malpractice does not become a constitutional violation merely because the victim is a
prisoner.” Estelle v. Gamble, 429 U.S. at 105-06. Simply put, an inmate is not entitled to the “best”
medical treatment available. Bemer v. Correctional Med. Services, No. 10-12228, 2012 WL 525564,
*7 (E.D. Mich. Jan. 27, 2012)(citing the 5th Circuit). The plaintiff in this case has received some
medical attention, including an antiviral and pain medication and prescribed bed rest; therefore, he
has not established that Sehorn acted with deliberate indifference to the plaintiff’s serious medical
needs.
The plaintiff’s claims against Dr. Nwozo are based solely on his role as attending physician
for the plaintiff’s unit; indeed, the complaint alleges that Nwozo “is the direct supervisor of Mr.
Sehorn, and ultimately responsible for Mr. Sehorn’s actions because Mr. Sehorn is acting under the
authority of Dr. Nwozo’s medical licence.” (Docket No. 1 at p. 6). Further, the complaint alleges
that Dr. Nwozo “is deliberately indifferent for not reviewing Mr. Sehorn’s records as required by
law, also, liable for not instituting proper protocols that would address the needs of inmates in need
of short-term pain management.” (Id.)
Even if Dr. Nwozo bears responsibility for Sehorn’s decisions as the supervising physician
of a physician’s assistant, the plaintiff has not stated an actionable Eighth Amendment claim against
Dr. Nwozo because the court already has determined that Sehorn did not violate the plaintiff’s
constitutional rights under the facts alleged in the complaint. Furthermore, the complaint fails to
explain how a change in institutional protocols regarding pain management would have altered the
defendants’ behavior in this instance when the court has determined that no constitutional violation
occurred with regard to the plaintiff’s treatment. Therefore, the plaintiff’s claims against Sehorn and
Dr. Nwozo, as well as the unnamed Unit 7B Provider and Physician, will be dismissed. 28 U.S.C.

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§ 1915A.
VII.

Conclusion
In conclusion, the court will deny the plaintiff’s motion for appointment of counsel (Docket

No. 3) as well as the plaintiff’s motion “requesting guidance and assistance with case” (Docket No.
5). The court has reviewed the complaint pursuant to the PLRA and finds that the complaint fails
to state § 1983 claims upon which relief can be granted as to any defendant. Therefore, this action
will be dismissed. 28 U.S.C. § 1915A.
An appropriate order will be entered.
ENTER this 22nd day of November 2017.

Aleta A. Trauger
United States District Judge

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