Willis v. Parker et al

Filing 49

REPORT AND RECOMMENDATION re 25 MOTION to Dismiss filed by Kenneth Williams, Tony Parker. For the reasons set out above, the undersigned respectfully RECOMMENDS that the motion to dismiss (Docket Entry No. 25) of Defendants Tony Parker and Kenneth Williams be GRANTED as follows: (1) Plaintiff's claims under the ADA and the Tennessee Constitution be DISMISSED for failure to state a claim upon which relief can be granted; and (2) Plaintiff's constitutional claim brought under 42 U.S.C. § 1983 seeking injunctive and declaratory relief related to his need for medical treatment for the Hepatitis virus be DISMISSED in light of the class action case, Graham v. Davis, 3:16-cv-1954, that is currently ongoing within this Court and of which Plaintiff is a member of the class. ANY OBJECTIONS to this Report and Recommendation must be filed 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. See Rule 72(b)(2) of the Federal Rules of Civil Procedure and Local Rule 72.03(b)(1). Failure to file written objections within the specified time can be deemed a waiver of the right to ap peal the District Court's Order regarding the Report and Recommendation. Signed by Magistrate Judge Barbara D. Holmes on 8/6/2018. (xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am)

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

HOWARD HAWK WILLIS
v.
COMMISSIONER TONY PARKER, et al.

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NO. 3:17-1423

TO: Honorable Aleta A. Trauger, District Judge

REPORT AND RECOMENDATION
By Order entered November 27, 2017 (Docket Entry No. 4), this pro se and in forma
pauperis 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 is the motion to dismiss (Docket Entry No. 25) of Defendants Tony Parker
and Kenneth Williams, to which Plaintiff has filed a response in opposition (Docket Entry No. 40).
For the reasons set forth below, the undersigned respectfully recommends that the motion be granted
and this action be dismissed.

I. BACKGROUND
Howard Hawk Willis (“Plaintiff”) is an inmate of the Tennessee Department of Correction
(“TDOC”) currently confined at the Riverbend Maximum Security Institution (“RMSI”) in
Nashville, Tennessee. He asserts that he suffers from the Hepatitis viruses but that he has been

denied critical and necessary medical treatment during his incarceration. Specifically, he alleges that
a treatment using a combination of drugs was recommended for him in 2016 but was not provided
by prison officials because they deemed that Plaintiff did not fall into the category of inmates who
needed treatment the most. Id. at 13. He further alleges that prison officials have also refused to
provide other Hepatitis treatments although they are readily available, such as the latest generation
of drug, Maverick. Plaintiff contends that prison officials have been deliberately indifferent to his
serious medical needs and that they are imposing improper barriers to withhold Hepatitis treatment
in order to limit the number of prisoners who receive treatment and save money. Id.
On November 1, 2017, Plaintiff filed this lawsuit against: the TDOC; TDOC Commissioner
Tony Parker (“Parker”); Centurion of Tennessee, LLC, a private entity under contract to provide
health care services for inmates at RMSI (“Centurian”); TDOC Medical Director Kenneth Williams
(“Williams”); and Dr. Marina Cadreche, Assistant Commissioner of Rehabilitative Services for
TDOC (“Cadreche”). The individual defendants are sued in only their official capacities. Plaintiff
brings claims for violations of: (1) the Eighth and Fourteenth Amendments; (2) the Americans with
Disabilities Act, 42 U.S.C. § 12132, and (3) Article I, Sections 8, 13, and 32 of the Tennessee
Constitution. Id. at 15. He seeks only prospective injunctive and declaratory relief related to the
provision of medical treatment to him for his condition. Id. at 25-26.
Upon initial review of the Complaint under 28 U.S.C. § 1915(e)(2), the Court dismissed the
claims against TDOC but permitted the action to proceed against all other Defendants. See Docket
Entry No. 4. In response to the complaint, Defendant Centurian has filed an answer (Docket Entry
No. 38) and Defendants Parker and Williams have filed the pending motion to dismiss. The docket
does not reflect that Defendant Cadreche has ever been served with process. See Docket Entry
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Nos. 7 and 12. Minimal pretrial proceedings have occurred in the action and a scheduling order has
yet to be entered. Plaintiff’s motions seeking to expand the scope of this lawsuit in order to attack
the legality of his underlying criminal conviction and to pursue other types of civil rights claims have
been denied by the Court. See Order entered February 5, 2018 (Docket Entry No. 28), and July 31,
2018 (Docket Entry No. 48).

II. MOTION TO DISMISS
In their motion to dismiss, Defendants Parker and Williams argue that Plaintiff’s lawsuit
should be dismissed because there is currently pending in this Court a class action lawsuit against
Parker, Williams, and Cadreche that involves the alleged unconstitutional denial of medical
treatment to TDOC inmates who suffer from the Hepatitis C infection. See Graham, et al. v. Parker,
et al., No. 3-16- cv-01954 (“Graham”). Defendants argue that Plaintiff falls within the class that has
been certified in Graham as:
All persons currently incarcerated in any facility under the supervision or control of
the Tennessee Department of Corrections or persons incarcerated in a public or
privately owned facility for whom the Tennessee Department of Corrections has
ultimate responsibility for their medical care and who have at least 90 days or more
remaining to serve on their sentences and are either currently diagnosed with
Hepatitis C infection or are determined to have Hepatitis C after a screening test has
been administered by the Department of Corrections.
See Order entered May 4, 2017 (Docket Entry No. 33) in Graham. Defendants assert that the
prospective injunctive and declaratory relief sought in Graham regarding treatment of TDOC
inmates with Hepatitis will apply to Plaintiff and that the factual and constitutional issues raised by
Plaintiff will necessarily be decided within Graham. Defendants argue that it would be duplicative
and potentially conflictive for the Court to review and rule upon the same facts and issues in the
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instant case when those facts and issues are being contemporaneously reviewed and decided in
Graham.
In a supplement to their motion, Defendants Parker and Williams argue that Plaintiff fails
to state a viable claim under either the ADA or the Tennessee Constitution. They request that these
two claims be dismissed for failure to state a claim upon which relief can be granted. See Docket
Entry No. 31.
Plaintiff responds in opposition to the motion to dismiss, arguing that he should not be
viewed as being part of the Graham class because all members have not suffered the same injury and
will have different medical needs and a need for different treatment. See Docket Entry No. 40. He
further asserts that he should not be forced into a class action lawsuit that may take years to resolve
while his own medical condition is deteriorating and that he has been denied his right to opt out of
the class action suit by either requesting exclusion or filing a motion in Graham to vacate the order
granting class certification. Id. Plaintiff does not offer an argument opposing the dismissal of his
ADA or state constitutional claims.

III. ANALYSIS AND CONCLUSIONS
A. Rule 12(b)(6) Standard
Rule 12(b)(6) provides for the dismissal of a complaint when a plaintiff fails to state a claim
upon which relief can be granted. To survive a motion to dismiss brought under Rule 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929
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(2007). A claim is facially plausible when a plaintiff pleads factual content that permits a court to
reasonably infer that the defendant is liable for the alleged misconduct. Id. (citing Twombly, 550
U.S. at 556). When assessing the sufficiency of a plaintiff's claim, a district court must accept all
of a complaint's factual allegations as true. See Ziegler v. IBP Hog Mkt., Inc., 249 F.3d 509, 512 (6th
Cir. 2001). “Mere conclusions,” however, “are not entitled to the assumption of truth.” Iqbal, 556
U.S. at 664. While the Court must liberally construe documents filed by a pro se plaintiff, see
Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), a complaint filed by a
pro se plaintiff must still plead sufficiently specific factual allegations, not just legal conclusions,
in support of each claim. See Iqbal, 556 U.S. at 678-679.

B. Claims under the ADA and Tennessee Constitution
The motion to dismiss should be granted as to Plaintiff’s ADA and state constitutional
claims. Defendants have set out legally compelling and sound arguments for dismissal of these
claims. See Docket Entry No. 31. Plaintiff has not responded to these arguments, see Docket Entry
No. 40, and has thus waived any rebuttal to the legal argument for dismissal. Scott v. State of
Tennessee, 1989 WL 72470 at *2 (6th Cir.1989) (“if a plaintiff fails to respond or to otherwise
oppose a defendant’s motion, then the district court may deem the plaintiff to have waived
opposition to the motion.”). In the absence of a responsive argument from Plaintiff showing why
these claims should not be dismissed, it is not the duty of the Court to find grounds to defeat the
motion to dismiss as it pertains to these claims. See Guarino v. Brookfield Township Trustees, 980
F.2d 399, 406 (6th Cir. 1992).

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C. Plaintiff’s Section 1983 medical care claims in light of Graham
The Court finds Defendants’ arguments on this issue to be persuasive. Any fair reading of
Plaintiff’s lawsuit shows that he falls within the class certified in Graham. His allegations that
prison officials have ignored his urgent need for treatment of the Hepatitis virus, have prevented him
from receiving a treatment regimen, and have purposefully prevented the use of modern treatments
for the Hepatitis virus, and that they have taken such steps with deliberate indifference to his medical
needs and because of a policy limiting Hepatitis treatment in order to reduce expenses and save
costs, essentially mirror the allegations and claims at issue in Graham. Further, the declaratory and
injunctive relief he seeks in his lawsuit overlaps and is subsumed within the relief sought by the
inmate class in Graham. In such a situation, Plaintiff should not be permitted to pursue duplicative
claims for declaratory and injunctive relief, and the policy of avoiding duplicative litigation about
the same factual issues and same claims warrants the dismissal of Plaintiff’s constitutional claims.
See Shabazz v. Centurion, 2018 WL 1440985 at *3 (W.D. Tenn. Mar. 22, 2018) (finding that inmate
was a member of the class in Graham and dismissing the inmate’s claims for declaratory and
injunctive relief). See also Groseclose v. Dutton, 829 F.2d 581, 584 (6th Cir. 1987) (“To allow two
or more district judges to issue directions to prison officials simultaneously would be to create ... an
inefficient situation, fraught with potential for inconsistency, confusion, and unnecessary expense.”
(citation and internal quotation marks omitted)).
As Plaintiff correctly points out, each TDOC inmate that falls within the class certified in
Graham will have some differing circumstances that are unique to their own situation. However,
the potential for these differences was addressed by Chief Judge Crenshaw in Graham and found to
be an insufficient basis upon which to deny the class. The class was certified under Rules 23(b)(1)
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and (2) of the Federal Rules of Civil Procedure. Accordingly, it is a mandatary “non-opt out” class
and there is no mechanism - or need- for any putative class member to opt out. Any person who falls
within the parameters of the class definition will be a class member and will benefit in the event
class-wide relief is granted.
The Court finally notes that the prison class in Graham is represented by counsel, who have
actively litigated the case. The proceedings in Graham are much further along than those in the
instant case. Indeed, discovery has occurred in Graham, a motion for summary judgment on behalf
of the prisoner class has been filed, and a trial is set for December 4, 2018. Plaintiff’s belief that he
will be prejudiced because of a delay in the resolution of Graham is unfounded.

RECOMMENDATION
For the reasons set out above, the undersigned respectfully RECOMMENDS that the motion
to dismiss (Docket Entry No. 25) of Defendants Tony Parker and Kenneth Williams be GRANTED
as follows:
(1) Plaintiff’s claims under the ADA and the Tennessee Constitution be DISMISSED for
failure to state a claim upon which relief can be granted; and
(2) Plaintiff’s constitutional claim brought under 42 U.S.C. § 1983 seeking injunctive and
declaratory relief related to his need for medical treatment for the Hepatitis virus be DISMISSED
in light of the class action case, Graham v. Davis, 3:16-cv-1954, that is currently ongoing within this
Court and of which Plaintiff is a member of the class.
ANY OBJECTIONS to this Report and Recommendation must be filed within fourteen (14)
days of service of this Report and Recommendation and must state with particularity the specific
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portions of this Report and Recommendation to which objection is made. See Rule 72(b)(2) of the
Federal Rules of Civil Procedure and Local Rule 72.03(b)(1). 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). Any response to the
objections must be filed within fourteen (14) days after being served with a copy of such objections.
See Federal Rule 72(b)(2) and Local Rule 72.03(b)(2).

Respectfully submitted,

BARBARA D. HOLMES
United States Magistrate Judge

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