Skelley v. Bridges et al

Filing 4

MEMORANDUM AND ORDER: The case is before the court for a ruling on the IFP application and for an initial review pursuant to the Prison Litigation Reform Act. Because it is apparent from the plaintiff's IFP application that he lacks the funds to pay the entire filing fee in advance, his application (Doc. No. 2 ) is GRANTED. Dewayne Skelley is nonetheless assessed the $350.00 civil filing fee. This action is DISMISSED for failure to state a claim upon which relief can be granted . Signed by District Judge Aleta A. Trauger on 11/28/2018. (xc:Pro se party and the Metro-Davidson County Detention Facility by regular mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
DEWAYNE SKELLEY,
Plaintiff,
v.
DR. JAMES BRIDGES, et al.,
Defendants.

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Case No. 3:18-cv-00430
Judge Trauger

MEMORANDUM AND ORDER
The plaintiff, Dewayne Skelley, is an inmate in the custody of the Metro-Davidson County
Detention Facility in Nashville, Tennessee. He has filed a pro se complaint under 42 U.S.C. § 1983
(Doc. No. 1) and an application for leave to proceed in forma pauperis (IFP) (Doc. No. 2). The
case is before the court for a ruling on the IFP application and for an initial review pursuant to the
Prison Litigation Reform Act (PLRA), 28 U.S.C. §§ 1915(e)(2) and 1915A, and 42 U.S.C. §
1997e.
I.

Application to Proceed IFP
Under the PLRA, 28 U.S.C. § 1915(a), a prisoner bringing a civil action may apply for

permission to file suit without prepaying the filing fee of $350 required by 28 U.S.C. § 1914(a).
Because it is apparent from the plaintiff’s IFP application that he lacks the funds to pay the entire
filing fee in advance, his application (Doc. No. 2) is GRANTED.
Pursuant to 28 U.S.C. §§ 1915(b) and 1914(a), the plaintiff is nonetheless assessed the
$350.00 civil filing fee. The warden of the facility in which the plaintiff is currently housed, as
custodian of the plaintiff’s trust account, is DIRECTED to submit to the Clerk of Court, as an
initial payment, the greater of: (a) 20% of the average monthly deposits to the plaintiff’s credit at

the jail; or (b) 20% of the average monthly balance to the plaintiff’s credit for the six-month period
immediately preceding the filing of the complaint. 28 U.S.C. § 1915(b)(1). Thereafter, the
custodian shall submit 20% of the plaintiff’s preceding monthly income (or income credited to the
plaintiff for the preceding month), but only when the balance in his account exceeds $10.00. 28
U.S.C. § 1915(b)(2). Payments shall continue until the $350.00 filing fee has been paid in full to
the Clerk of Court. 28 U.S.C. § 1915(b)(3).
The Clerk of Court MUST send a copy of this Order to the Metro-Davidson County
Detention Facility to ensure compliance with that portion of 28 U.S.C. § 1915 pertaining to the
payment of the filing fee. If the plaintiff is transferred from his present place of confinement, the
custodian must ensure that a copy of this order follows the plaintiff to his new place of
confinement, for continued compliance with the order. All payments made pursuant to this order
must be submitted to the Clerk of Court for the United States District Court for the Middle District
of Tennessee, 801 Broadway, Nashville, TN 37203.
II.

Initial Review of the Complaint
A.

PLRA Screening Standard

Pursuant to 28 U.S.C. § 1915(e)(2)(B), the court must dismiss any IFP complaint that is
facially frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks
monetary relief against a defendant who is immune from such relief. Similarly, § 1915A provides
that the court shall conduct an initial review of any prisoner complaint against a governmental
entity, officer, or employee, and shall dismiss the complaint or any portion thereof if the defects
listed in § 1915(e)(2)(B) are identified. Under both statutes, this initial review of whether the
complaint states a claim upon which relief may be granted asks whether it contains “sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face,” such that it

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would survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Hill v. Lappin,
630 F.3d 468, 470–71 (6th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (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. Applying this standard, the court must view the complaint in the light most
favorable to the plaintiff and, again, must take all well-pleaded factual allegations as true. Tackett
v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin,
551 F.3d 461, 466 (6th Cir. 2009) (citations omitted)). Furthermore, pro se pleadings must be
liberally construed and “held to less stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
However, pro se litigants are not exempt from the requirements of the Federal Rules of Civil
Procedure, Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989), nor can the court “create a claim
which [a plaintiff] has not spelled out in his pleading.” Brown v. Matauszak, 415 F. App’x 608,
613 (6th Cir. 2011) (quoting Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir.
1975)).
B.

Section 1983 Standard

The plaintiff seeks to vindicate alleged violations of his federal constitutional rights under
42 U.S.C. § 1983. Section 1983 creates a cause of action against any person who, acting under
color of state law, deprives an individual of any right, privilege or immunity secured by the
Constitution or federal laws. Wurzelbacher v. Jones-Kelley, 675 F.3d 580, 583 (6th Cir. 2012).
Thus, to state a § 1983 claim, the plaintiff must allege two elements: (1) a deprivation of rights
secured by the Constitution or laws of the United States, and (2) that the deprivation was caused

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by a person acting under color of state law. Carl v. Muskegon Cnty., 763 F.3d 592, 595 (6th Cir.
2014).
C.

Allegations and Claims of the Complaint

The plaintiff alleges that he has been suffering from chronic kidney stones since
approximately January of 2017, when he first brought the issue to the attention of Dr. Bridges.
(Doc. No. 1 at 5.) He alleges that he has “been having issues concerning the treatment of his kidney
stones for over a year,” and has had nine CAT scans 1 in that time. (Id.) He states that the CAT
scans confirmed the presence of multiple stones in both kidneys, and that he has been passing the
stones, retrieving them, and taking them to medical for testing. (Id.) The plaintiff has suffered
severe pain during this process, discomfort and the passing of blood while urinating, and
humiliation over his diagnosis. (Id.) He alleges that Dr. Bridges and CoreCivic, Inc. (the operator
of the prison) have demonstrated medical neglect; that Dr. Bridges has failed to provide him
adequate treatment; and that CoreCivic has failed to provide proper care and has denied him
“access to proper outpatient procedures to remedy the situation.” (Id.) He asserts a violation of his
Eighth Amendment rights and medical negligence, and seeks an award of compensatory damages
and an apology. (Id. at 5–6.)
D.

Analysis

The plaintiff claims that he was denied appropriate medical care in violation of his rights
under the Eighth Amendment to the U.S. Constitution. “Eighth Amendment jurisprudence clearly
establishes that deliberate indifference to serious medical needs of prisoners constitutes the

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Computed tomography (CT or CAT) scans use special x-ray equipment to make crosssectional pictures of the body. Such scans require the patient to lie still on a table that passes
through the center of a large x-ray machine. https://medlineplus.gov/ctscans.html (last visited
November 27, 2018).
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unnecessary and wanton infliction of pain that is violative of the Constitution.” Darrah v. Krisher,
865 F.3d 361, 367 (6th Cir. 2017) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 105 (1976))
(internal quotation marks omitted). In order to succeed in bringing a deliberate indifference claim
in the medical context, the plaintiff must allege the deprivation of a “sufficiently serious” medical
need by a defendant who acted with a “sufficiently culpable state of mind.” Darrah, 865 F.3d at
367–68 (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)). 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.” Villegas v. Metro. Gov’t
of Nashville, 709 F.3d 563, 570 (6th Cir. 2013). The state of mind described by “deliberate
indifference” is demonstrated not by mere medical negligence, but only when an official knows of
and disregards an excessive risk to the inmate’s health or safety. Farmer, 511 U.S. at 836–37.
While kidney stones present a serious medical need, Thomas v. Webb, 39 F. App’x 255,
256 (6th Cir. 2002), the plaintiff has not plausibly alleged the defendants’ deliberate indifference
to that need based on the denial of “proper medical care” or of certain “outpatient procedures.”
(Doc. No. 1 at 5.) He does not allege that his complaints are being ignored or that he is being
deprived of any treatment for his condition. Indeed, the plaintiff states that he has had nine CAT
scans since January of 2017, presumably upon Dr. Bridges’s orders and/or with CoreCivic’s
approval, revealing multiple stones in both kidneys. (Id.) He states that he has “been having issues
concerning the treatment of [his] kidney stones,” and contends that his medical care has been either
improper or insufficient “to remedy the situation.” (Id.)
However, “negligence or negligent medical treatment are not actionable theories of liability
under 42 U.S.C. § 1983.” Boldon v. Claiborne Cnty. Det. Ctr., No. 3:16-CV-441-TWP-HBG, 2017
WL 4158612, at *6 (E.D. Tenn. Sept. 19, 2017) (citing Daniels v. Williams, 474 U.S. 327, 328–

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331 (1986) (finding that a “mere lack of due care” is not constitutionally actionable); Estelle, 429
U.S. at 106 (explaining that “[m]edical malpractice does not become a constitutional violation
merely because the victim is a prisoner”)). Thus, there is a distinction between cases where the
complaint alleges a complete denial of medical care and cases challenging the adequacy of the
care received: “Where a prisoner has received some medical attention and the dispute is over the
adequacy of the treatment, federal courts are generally reluctant to second guess medical
judgments and to constitutionalize claims which sound in state tort law.” Westlake v. Lucas, 537
F.2d 857, 860 n.5 (6th Cir. 1976). In this case, the plaintiff essentially claims that Dr. Bridges and
CoreCivic are treating him more conservatively than he would like, or than is proper to remedy
his condition. This is a claim of medical negligence, not a claim of deliberate indifference in
violation of the Eighth Amendment.
III.

Conclusion
In light of the foregoing, the plaintiff’s application for leave to proceed IFP (Doc. No. 2)

is GRANTED, and this action is DISMISSED pursuant to 28 U.S.C. § 1915(e)(2), for failure to
state a claim upon which relief can be granted.
It is so ORDERED.
ENTER this 28th day of November 2018.

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Aleta A. Trauger
United States District Judge

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