Murdock et al v. State of Tennessee et al

Filing 49

ORDER ON PENDING MOTIONS 47 48 , ORDER OF DISMISSAL AND GRANTING LEAVE TO AMEND. Signed by Chief Judge J. Daniel Breen on 9/26/13. (Breen, J.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION

MARSHALL H. MURDOCK, et al.,
Plaintiffs,
vs.
STATE OF TENNESSEE, et al.,
Defendants.

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No. 11-1220-JDB-egb

ORDER ON PENDING MOTIONS
ORDER OF DISMISSAL
AND
GRANTING LEAVE TO AMEND

On July 5, 2011, Plaintiffs, Marshall H. Murdock, Tennessee
Department of Correction (“TDOC”) prisoner number 363417, Charles
H. Roberts, TDOC prisoner number 428139, Julius Perkins, TDOC
prisoner number 258949, and Rudolph Powers, TDOC prisoner number
95360, all of whom were, at the time, inmates at the Northwest
Correctional Complex (“NWCX”) in Tiptonville, Tennessee, filed a
joint pro se complaint pursuant to the Title II of the Americans
With Disabilities Act (“ADA”), 42 U.S.C. §§ 12131—12134, in the
United States District Court for the Middle District of Tennessee,
accompanied by a legal memorandum.
2.)1

(Docket Entries (“D.E.”) 1 &

The named Defendants are the State of Tennessee, TDOC

1

Murdock is currently confined at the Riverbend Maximum Security
Institution (“RMSI”) in Nashville, Tennessee, which is in the Middle District of
Tennessee. Roberts is at the Morgan County Correctional Complex (“MCCX”) in
(continued...)

Commissioner Derrick R. Schofield; TDOC Assistant Commissioner of
Operations Reuben Hodge; former NWCX Warden David Mills; NWCX
Deputy Warden Brenda Jones; NWCX Assistant Warden for Operations
Melvin Tirey; NWCX Health Care Administrator Samantha Phillips; and
NWCX Physicians Assistant Amanda Collins.

Each Defendant is sued

in his or her individual and official capacities.

(D.E. 1 at 5.)

Roberts also filed a factual affidavit and on July 15, 2011, he
filed a Statement of Jurisdiction.

(D.E. 3, 10.)

On July 18,

2011, each Plaintiff filed a motion for appointment of counsel.
(D.E. 12, 14, 16 & 18.)
After the inmates submitted the required documents, United
States District Judge Todd J. Campbell issued an order on July 22,
2011, that granted leave to proceed in forma pauperis, assessed
each plaintiff one-quarter of the civil filing fee pursuant to the
Prison Litigation Reform Act of 1996 (“PLRA”), 28 U.S.C. §§
1915(a)—(b), and transferred the case to this district, where venue
is proper.

(D.E. 21.)

The case was docketed in this district on

the same day as the transfer.

(D.E. 22.)

Plaintiffs purported to sue on their own behalf and on behalf
of all other similarly situated prisoners in TDOC custody.
1 at 1.)

(D.E.

In an order issued on September 18, 2012, the Court

denied class certification.

(D.E. 46 at 2—3.)

That order also

denied the motions for appointment of counsel (id. at 4—5), granted
Murdock’s motion to voluntarily dismiss his claims against Mills

1

(...continued)
Wartburg, Tennessee, which is in the Eastern District of Tennessee.

2

without prejudice pursuant to Federal Rule of Civil Procedure
41(a)(1)(A) (id. at 9), denied Plaintiff Murdock’s motion to add
additional defendants located in the Middle District of Tennessee
(id. at 9—10), denied Murdock’s motion to transfer the case back to
the Middle District of Tennessee (id.

at 10—11), and denied

Roberts’ motion to add additional defendants located in the Eastern
District of Tennessee (id. at 11).
On October 5, 2012, Roberts filed a motion, titled “Response
to Judge Breen’s Orders and Motion to Amend the Original Complaint
as

Necessary.”

reiterated

his

(D.E.
desire

47.)
to

In

amend

his
his

pleading,
complaint

the
to

Plaintiff

incorporate

violations of the ADA that occurred while he was incarcerated at
the MCCX, which is in the Eastern District of Tennessee, and the
Charles

B.

Bass

Correctional

Complex

(“CBCX”)

Tennessee, which is in the Middle District.

in

Nashville,

This Motion is DENIED

for the reasons stated in the September 18, 2012, order with
respect to Murdock’s similar motion.

(See D.E. 46 at 10.)

“It is

administratively impractical to allow each Plaintiff to amend to
make allegations pertaining only to him that are unrelated to the
original claims.

The Court also is unable to grant injunctive

relief” on new claims arising outside this judicial district.
(Id.)
On June 3, 2013, Murdock and Roberts filed another “Motion to
Transfer This Matter to the United States District Court for the
Middle District of Tennessee, Nashville Division Due to Systemic
Involvement of All Prisons in Tennessee.”
3

(D.E. 48 (additional

emphasis

omitted).)2

That

filing

asserts

that

all

Tennessee

prisons are denying certain treatments to disabled inmates after
the TDOC engaged Corizon as its medical provider and Pharmacorp as
its pharmacy provider.
pleading,

inmates

commissary,”

but

are

(Id. at 2.)
told

inmates

to

“get

without

commissary purchases. (Id.)

According to the Plaintiffs’
what

funds

you

are

can

unable

from
to

the
make

The TDOC confiscates all the funds

received by some inmates from their prison jobs, leaving them with
zero balances. (Id.) Some inmates, including Murdock and Roberts,
have been unable to obtain replacement parts for the Constant
Positive Airway Pressure (“CPAP”) or Bi-Level Positive Airway
Pressure (“BIPAP”) devices used to treat their sleep apnea. (Id.)3
The inmates assert that the Middle District of Tennessee is the
proper venue for these new claims because TDOC officials are
located in that district.

(Id. at 3.)

This Motion is essentially a reiteration of Murdock’s previous
motions for leave to amend and to transfer this action to the
Middle District of Tennessee, and it is DENIED for the reasons
previously stated. The Motion is also denied because, as discussed
infra, the proposed new claims are not properly addressed under
Title II of the ADA.

2

The pages of this document are not in the correct order. All page
references to this filing refer to the typewritten page numbers on the document.
3

The filing also stated that distilled water must be used in CPAP and
BIPAP machines (id. at 2—3), but there is no allegation that Murdock and Roberts
do not receive distilled water.

4

The factual allegations of the Complaint are vague.
consist, in their entirety, of the following:
1.
That they are the plaintiffs in pro se and are
desirous of a speedy resolution to this matter now before
this Honorable Court;
2.
That they are disabled within the meaning and
definition of statutes and the words and that this may be
shown by petitioners’ TDOC medical records;
3.
That they are being discriminated against by
the DOC because of their disabilities and denied access
to programming, certain education, work programs,
transfers, and in cases visits and access to the courts;
4.
That because of their disabilities they are
being further discriminated against by being only given
menial tasks which do not pay as much as others or even
deminimus [sic] wages and further handicapped by forcing
their love [sic] ones to travel extensive distances which
further contributes to a financial burden and further
contributes to petitioners’ hardship and causes even more
disability as they are not able to obtain proper and
necessary medical care and treatment without having to
travel extensive distances;
. . . .
5.
That the petitioners would ask this Honorable
Court enter a temporary injunction against respondents in
this matter now before this Honorable Court for their
refusal to allow this class of petitioner (Class “B” or
“C” medical) to transfer to other facilities for the
reasons supra from which they are excluded, and allow the
transfers as requested;
. . . .
9.
That certain members of the class of
petitioner/inmate are also denied proper access to the
various courts within and/or without Tennessee as they
should be at an incarceratory facility closest to whre
[sic] the court is located in order to have access to
whtnesses [sic], court documents, and other material as
well as proper access to legal Materials and a law
library, etc., and proper medical care while awaiting the
action in said court . . . .

5

They

(D.E. 1 at 6—8.)

Plaintiffs seek a temporary restraining order,

money damages, and transfers to a prison in the Middle District of
Tennessee.

(Id. at 9.)

The Complaint contains no detail about the manner in which
each Plaintiff was injured and the role played by each named
Defendant.

Attached to the Complaint are 31 pages of inmate

grievance documents (D.E. 1-1), which Plaintiffs presumably intend
to serve as each prisoner’s factual allegations.
grievance

complaining

that,

because

he

is

Roberts filed a

classified

as

B/C

medical, he is ineligible to transfer to another TDOC facility. He
asked to be transferred to the CBCX in Nashville, Tennessee. (D.E.
1-1 at 3.) Roberts asserts that, because of his confinement at the
NWCX, he is being denied family visits and does not receive
appropriate medical care in some unspecified manner.

(Id. at 4.)

The supervisor’s response, signed by Tirey, states that “I can not
force another institution to accept an inmate.

I submit names.

Prisons have the priviledge [sic] of accepting or denying inmates.”
(Id. at 5.)
In

his

factual

affidavit,

which

was

submitted

with

Complaint, Roberts states, in pertinent part:
2.
That in addition to Counselor Blackley named in
my grievance dated 3/24/11, I have also talked to
Counselors W. Turner and Mays as well as medical staff
concerning my request for transfer and all have stated
that as I am a person with disabilities and fall within
the TDOC classification of a Class “B” medical that I am
ineligible for transfer to any other facility, that noone will accept me for any reason;
3.
I also inquired of medical and counseling staff
about being transferred to a geriatric facility as I am
6

the

a senior citizen/inmate, but have been told that as I am
unable to be “self-sufficient” that I am ineligible for
such placement that as I am unable to work I am not
allowed to go to such a facility;
4.
That my trial counsel stated that I would be
kept “in a place like a nice nursing home” during my
incarceration, yet, rather than being so placed, I was
send [sic] from the TDOC intake facility straight to the
Northwest Correctional Complex (NWCX), which is, in all
reality, nothing more than a “Thunderdome,” where
assaults and robberies, threats and intimidation are rife
and the order of the day[.]
(D.E. 3 at 1—2.)
Murdock submitted a grievance in January 2010 in which he
stated that “I am being discriminated against for consideration for
a incentive transfer to the Geriatrics Unit at either CBCX or
DSNF.”

(D.E. 1-1 at 7.)

He avers that he was told by NWCX staff

that “I cannot be accepted at any other facility or site offering
programs because of my medical condition/classification.”
8.)

(Id. at

The inmate asserts that “there are no programs for me to

attend [at NWCX] considering my offense.”

(Id.)

Murdock also

submitted documents showing that someone at NWCX sent an email to
CBCX asking whether that facility would accept him in its Geriatric
Unit, but no response was received.

(See id. at 10—11.)

In

response to an Inmate Inquiry — Information Request submitted by
Murdock, someone on the NWCX staff wrote that “I never got a
response. A no response is a negative response.”

(Id. at 11.)

In

2008, the prisoner requested a transfer for a staff job at either
DSNF, CBCX, or RMSI and was told that “[y]ou are class B medical —
you cannot go to any facility as a support worker.”

(Id. at 13.)

In 2009, Murdock was told that “CBCX has a geriatric unit but will
7

not accept you with your heart problems.”

(Id. at 14.)

In an

unsigned statement dated January 25, 2010, Murdock reiterated the
statements in his inmate grievances and stated that he “cannot go
to other TDOC facilities/sites offering programs that [he] must
complete to be considered for parole because of [his] medical
conditions and a Class B medical.”

(Id. at 15.)

In a grievance

dated December 28, 2010, Murdock requested a transfer to “the
Geriatrics Unit near Nashville” and noted that it is difficult for
his wife to travel to the NWCX to visit him.

(Id. at 16, 17.)

In

an undated letter to Joe Birch, who is not identified, Murdock
complains about inadequate medical treatment at the NWCX.

(Id. at

18.) A grievance response, dated April 11, 2011, lists the various
medical conditions from which the inmate suffers.

(Id. at 23.)

Perkins submitted a grievance in which he asserts that he
suffers from a herniated disc.

His condition apparently is not

severe enough for a transfer to the Lois M. DeBerry Special Needs
Facility in Nashville, but he must travel to Nashville in a prison
van

from

time

appearances.

to

time

for

medical

assessments

and

court

The journey allegedly takes between four and six

hours, and Perkins suffers discomfort during the trip. He seeks to
be transferred to any facility in Nashville.

His grievance also

complains, without elaboration, that he is “being forced to not
follow medical instruction, and not honor doctors of competent
state certified advise.”

(Id. at 31.)

The grievance response

states that Perkins is not a surgical candidate and that he is

8

being

treated

management.”

with

“medication,

(Id. at 29.)

conservatively,

for

pain

The response also states that

Mr. Perkins is able to provide self-care and conduct
activities of daily living. At this time, his condition
can be managed on an out patient basis with specialty
consultation services as clinically indicated.
This case has been renew [sic] with institutional
providers. There is currently no medical justification
to request a transfer to DSNF.
CBCX is not a prison
designed to provide special medical services. . . .
As previously stated, Mr. Perkins’ travel and/or
restraint does not pose a risk to his health or safety,
though we understand it is not comfortable.
(Id.)
Powers has provided no information about his specific claims.
The Court is required to screen prisoner complaints and to
dismiss any complaint, or any portion thereof, if the complaint—
(1) is frivolous, malicious, or fails to state a
claim upon which relief may be granted; or
(2) seeks monetary relief from a defendant who is
immune from such relief.
28 U.S.C. § 1915A(b); see also 28 U.S.C. § 1915(e)(2)(B)(i)—(iii).
In assessing whether the complaint in this case states a claim
on which relief may be granted, the standards under Rule 12(b)(6)
of the Federal Rules of Civil Procedure, as stated in Ashcroft v.
Iqbal, 556 U.S. 662, 677—79, 129 S. Ct. 1937, 1949—50 (2009), and
in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555—57, 127 S. Ct.
1955, 1964—66, 167 L. Ed. 2d 929

(2007), are applied.

Hill v.

Lappin, 630 F.3d 468, 470—71 (6th Cir. 2010). “Accepting all wellpleaded allegations in the complaint as true, the Court considers
the factual allegations in the complaint to determine if they
9

plausibly suggest an entitlement to relief.”

Williams v. Curtin,

631 F.3d 380, 383 (6th Cir. 2011) (internal quotation marks,
alteration & citation omitted).

“[P]leadings that . . . are no

more than conclusions[] are not entitled to the assumption of
truth.

While legal conclusions can provide the framework of a

complaint, they must be supported by factual allegations.”

Iqbal,

556 U.S. at 679, 129 S. Ct. at 1950; see also Twombly, 550 U.S. at
555 n.3, 127 S. Ct. at 1964—65 n.3 (“Rule 8(a)(2) still requires a
‘showing,’ rather than a blanket assertion, of entitlement to
relief.

Without some factual allegation in the complaint, it is

hard to see how a claimant could satisfy the requirement of
providing not only ‘fair notice’ of the nature of the claim, but
also ‘grounds’ on which the claim rests.”).
“A complaint can be frivolous either factually or legally. Any
complaint that is legally frivolous would ipso facto fail to state
a claim upon which relief can be granted.”

Hill, 630 F.3d at 470

(internal citation omitted).
Whether a complaint is factually frivolous under §§
1915A(b)(1) and 1915(e)(2)(B)(i) is a separate issue from
whether it fails to state a claim for relief. Statutes
allowing a complaint to be dismissed as frivolous give
judges not only the authority to dismiss a claim based on
an indisputably meritless legal theory, but also the
unusual power to pierce the veil of the complaint’s
factual allegations and dismiss those claims whose
factual contentions are clearly baseless.
Unlike a
dismissal for failure to state a claim, where a judge
must accept all factual allegations as true, a judge does
not have to accept fantastic or delusional factual

10

allegations as true in prisoner complaints that are
reviewed for frivolousness.
Id. at 471 (internal quotation marks & citations omitted).

“Pro se complaints are to be held to less stringent standards
than formal pleadings drafted by lawyers, and should therefore be
liberally

construed.”

quotation

marks

&

Williams,

citation

631

F.3d

at

383

(internal

omitted).

Pro

se

litigants

and

prisoners, however, are not exempt from the requirements of the
Federal Rules of Civil Procedure.

Wells v. Brown, 891 F.2d 591,

594 (6th Cir. 1989), reh’g denied (Jan. 19, 1990); see also Brown
v. Matauszak, 415 F. App’x 608, 613 (6th Cir. 2011) (“[A] court
cannot ‘create a claim which [a plaintiff] has not spelled out in
his pleading[.]”) (internal quotation marks & citation omitted);
Payne v. Sec’y of Treas., 73 F. App’x 836, 837 (6th Cir. 2003)
(affirming sua sponte dismissal of complaint pursuant to Fed. R.
Civ. P. 8(a)(2) and stating, “[n]either this court nor the district
court is required to create Payne’s claim for her”); cf. Pliler v.
Ford, 542 U.S. 225, 231, 124 S. Ct. 2441, 2446, 159 L. Ed. 2d 338
(2004) (“District judges have no obligation to act as counsel or
paralegal to pro se litigants.”); Young Bok Song v. Gipson, 423 F.
App’x 506, 510 (6th Cir. 2011) (“[W]e decline to affirmatively
require courts to ferret out the strongest cause of action on
behalf of pro se litigants. Not only would that duty be overly
burdensome, it would transform the courts from neutral arbiters of
disputes into advocates for a particular party.

11

While courts are

properly charged with protecting the rights of all who come before
it, that responsibility does not encompass advising litigants as to
what legal theories they should pursue.”), cert. denied, ___ U.S.
___, 132 S. Ct. 461, 181 L. Ed. 2d 300 (2011).
Title II of the ADA provides, in pertinent part, that “no
qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public
entity, or be subjected to discrimination by any such entity.”

42

U.S.C. § 12132. “The term ‘qualified individual with a disability’
means

an

individual

with

a

disability

who,

with

or

without

reasonable modifications to rules, policies, or practices, the
removal

of

architectural,

communication,

or

transportation

barriers, or the provision of auxiliary aids and services, meets
the essential eligibility requirements for the receipt of services
or the participation in programs or activities provided by a public
entity.”

Id. § 12131(2).

The term “public entity” includes “any

State . . . government” and “any department, agency, special
purpose district, or other instrumentality of a State[.]”
12131(1)(A)—(B).

Id. §§

The United States Supreme Court has held that

Title II of the ADA applies to prisoners housed in state prisons.
Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 213, 118 S. Ct. 1952,
1956, 141 L. Ed. 2d 215 (1998).

Thus, Title II applies to claims

that an inmate has been denied the benefit of, or excluded from
participation in, “recreational activities, medical services, and

12

educational and vocational programs.”

Id. at 210, 118 S. Ct. at

1955 (internal quotation marks omitted).
The proper defendant to a suit under Title II of the ADA is
the public entity or an official acting in his official capacity.
Everson v. Leis, 556 F.3d 484, 501 n.7 (6th Cir. 2009); Carter v.
Mich. Dep’t of Corr., No. 1:13-cv-37, 2013 WL 3270909, at *5 (W.D.
Mich. June 27, 2013) (same).
however,

provide

for

individual capacity.”

suit

“Title II of the ADA does not,

against

a

public

official

in

his

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.”); Law v. Stewart, No. 1:09-cv-503,
2011 WL 926863, at *7 (W.D. Mich. Feb. 7, 2011) (report and
recommendation) (same), adopted, 2011 WL 901962 (W.D. Mich. Mar.
15, 2011).

Therefore, the Court DISMISSES the Complaint against

Defendants Schofield, Hodge, Mills, Jones, Tirey, Phillips, and
Collins in their individual capacities for failure to state a claim
on

which

relief

may

be

granted,

pursuant

to

28

U.S.C.

§§

1915(e)(2)(B)(ii) and 1915A(b)(1).
The Eleventh Amendment provides that “[t]he Judicial power of
the United States shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens or Subjects of
any Foreign State.” U.S. Const. amend. XI. The Eleventh Amendment
13

has been construed to prohibit citizens from suing their own states
in federal court.

Welch v. Tex. Dep’t of Highways & Pub. Transp.,

483 U.S. 468, 472, 107 S. Ct. 2941, 2945, 97 L. Ed. 2d 389 (1987);
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.
Ct. 900, 908, 79 L. Ed. 2d 67 (1984); Emps. of Dep’t of Pub. Health
& Welfare v. Mo. Dep’t of Pub. Health & Welfare, 411 U.S. 279, 280,
93 S. Ct. 1614, 1616, 36 L. Ed. 2d 251 (1973).

“A State may waive

its sovereign immunity at its pleasure, and in some circumstances
Congress may abrogate it by appropriate legislation. But absent
waiver or valid abrogation, federal courts may not entertain a
private person’s suit against a State.”

Va. Office for Prot. &

Advocacy v. Stewart, ___ U.S. ___, 131 S. Ct. 1632, 1638, 179 L.
Ed. 2d 675 (2011) (citations omitted).

By its terms, the Eleventh

Amendment bars all suits, regardless of the relief sought.
Pennhurst, 465 U.S. at 100—01, 104 S. Ct. at 908.
“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, 154, 126 S. Ct. 877, 879,
163 L. Ed. 2d 650 (2006) (citing 42 U.S.C. § 12133).

The Supreme

Court has held that, “insofar as Title II creates a private cause
of action for damages against the States for conduct that actually
violates

the

Fourteenth

sovereign immunity.”

Amendment,

Title

II

abrogates

Id. at 159, 126 S. Ct. at 882.

state

A district

court evaluating a Title II complaint that seeks money damages must
consider,

14

on a claim-by-claim basis, (1) which aspects of the
State’s alleged conduct violated Title II; (2) to what
extent such misconduct also violated the Fourteenth
Amendment; and (3) insofar as such misconduct violated
Title II but did not violate the Fourteenth Amendment,
whether Congress’s purported abrogation of sovereign
immunity as to that class of conduct is nevertheless
valid.
Id. at 159, 126 S. Ct. at 882.

Relying on the Supreme Court’s

decision in Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356,
121 S. Ct. 955, 148 L. Ed. 2d 866 (2001), the Sixth Circuit Court
of Appeals has held that Title II of the ADA validly abrogates
sovereign immunity for claims arising under the Due Process Clause
of the Fourteenth Amendment, but not for claims arising under the
Equal Protection Clause of the Fourteenth Amendment.

Popovich v.

Cuyahoga Cnty. Court of Common Pleas, 276 F.3d 808, 811 (6th Cir.
2002) (en banc), cert. denied, 537 U.S. 812, 123 S. Ct. 72, 154 L.
Ed. 2d 15 (2002).

A claim that a litigant was denied access to

programs and services on account of his disability “is essentially
one that he was treated differently from other, non-disabled
individuals, and sounds in equal protection[.]”

Robinson v. Univ.

of Akron Sch. of Law, 307 F.3d 409, 413 (6th Cir.

2002).

The

Court of Appeals subsequently held that Popovich bars only Equal
Protection

claims

where

the

litigant

“claim[s]

to

deserve

heightened scrutiny as a member of a suspect class,” but not Equal
Protection claims that challenge the rational basis for a public
15

entity’s actions.
2010).

Mingus v. Butler, 591 F.3d 474, 483 (6th Cir.

In cases where the Eleventh Amendment bars money damages

against a state entity, injunctive relief against that entity will
also be barred.

Angel v. Kentucky, 314 F.3d 262, 265 (6th Cir.

2002); Carten v. Kent State Univ., 282 F.3d 391, 397—98 (6th Cir.
2002).
The Eleventh Amendment does not bar a suit against a state
official in his or her official capacity to enjoin an ongoing
violation of federal law.

Ex parte Young, 209 U.S. 123, 160, 28 S.

Ct. 441, 454, 52 L. Ed. 714 (1908).

“[I]n determining whether the

doctrine of Ex parte Young avoids an Eleventh Amendment bar to
suit, a court need only conduct a straightforward inquiry into
whether the complaint alleges an ongoing violation of federal law
and seeks relief properly characterized as prospective.”

Stewart,

___ U.S. at ___, 131 S. Ct. at 1639 (internal quotation marks,
alterations & citations omitted); see also Diaz v. Mich. Dep’t of
Corr., 703 F.3d 956, 964 (6th Cir. 2013) (same).

The Eleventh

Amendment does not bar suits under the ADA against individual state
actors

in

their

official

capacities

solely

for

prospective

injunctive relief. Angel, 314 F.3d at 265; Whitfield v. Tennessee,
639 F.3d 253, 257 (6th Cir. 2011), reh’g denied (Apr. 18, 2011).
As required by the decision in Georgia, the Court will first
address whether the Complaint properly alleges a violation of Title
II.

To establish a prima facie case under Title II of the ADA, a

plaintiff must prove that “(1) [he] has a disability; (2) [he] is
otherwise

qualified;

and

(3)

[he]
16

is

being

excluded

from

participation in, being denied the benefits of, or being subjected
to

discrimination

disability.”

under

the

program

solely

because

of

[his]

Dillery v. City of Sandusky, 398 F.3d 562, 567 (6th

Cir. 2005) (alterations added & citations omitted).

Money damages

are only available where the discrimination is intentional.
Woodward v. City of Paris, Tenn., 520 F. Supp. 2d 911, 917 (W.D.
Tenn. 2007).

“[T]he plaintiff must show that the discrimination

was intentionally directed toward him or her in particular.”
Tucker v. Tennessee, 539 F.3d 526, 532 (6th Cir. 2008), cert.
denied, 558 U.S. 816, 130 S. Ct. 60, 175 L. Ed. 2d 24 (2009); see
also Dillery, 398 F.3d at 568 (“Acts and omissions which have a
disparate impact on disabled persons in general are not specific
acts of intentional discrimination against [the plaintiff] in
particular.”) (alterations & citation omitted); Logan v. Corr.
Corp. of Am., No. 1:12-cv-0003, 2012 WL 2131676, at *4 (M.D. Tenn.
June 12, 2012) (same).
Plaintiffs’ Complaint parrots the ADA standards but provides
few factual allegations.

Plaintiffs allege, without elaboration,

that they are disabled and that they are “being discriminated
against by the [TDOC] because of their disabilities and denied
access to programming, certain education, work programs, transfers,
and in cases visits and access to the courts.”

(D.E. 1 at 6.)

The

remaining contentions assert that some disabled prisoners are being
discriminated against, but no details of any discrimination against
any Plaintiff is provided.

(Id. at 6—7, 9—10.)

Therefore, the

Complaint, as submitted, is subject to dismissal because it does
17

not assert a plausible claim of discrimination on behalf of any
named Plaintiff arising from his incarceration at the NWCX.
Three of the four Plaintiffs have supplemented the Complaint
with inmate grievances that purport to show the basis for their
claims.

Rule 8(a)(2) of the Federal Rules of Civil Procedure

requires pleadings to contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.”

A stack of

documents cannot substitute for specific factual allegations in a
pleading.

See Jennings v. Emry, 910 F.2d 1434, 1436 (7th Cir.

1990) (“A . . . complaint must be presented with intelligibility
sufficient for a court or opposing party to understand whether a
valid claim is alleged and if so what it is.

And it must be

presented with clarity sufficient to avoid requiring a district
court or opposing party to forever sift through its pages in search
of that understanding.”) (citations omitted); Septer v. Warden,
Hocking Corr. Facility, No. 2:12-CV-01209, 2013 WL 4456043, at *2
(S.D. Ohio Aug. 16, 2013) (“[I]t is the plaintiff’s job, and not
the Court’s, to sift through his various grievances and both to
decide, and plead with some level of specificity, what claims he
intends to assert against what defendants.”); Mobley v. Warden
London Corr. Inst., No. 2:09-cv-638, 2010 WL 518033, at *1 (S.D.
Ohio Feb. 1, 2010) (form complaint accompanied by many inmate
grievances “do[es] not constitute a proper complaint”). Because it
has discretion to allow Plaintiffs to submit an amendment that
cures the deficiency in their original pleading, the Court will

18

address the substance of the claims discerned from the various
inmate grievances.
The documents submitted by Perkins establish that he suffers
from a herniated disc, that he is receiving appropriate medical
treatment at the NWCX, but that it is painful for him to ride in a
transport van to see medical providers and make unspecified court
appearances in Nashville.

He seeks an order transferring him to

any TDOC facility in Nashville.

See supra pp. 8—9.

Those

allegations are insufficient to state a claim under Title II of the
ADA because there is no allegation that Perkins has been excluded
from participation in, been denied the benefits of, or excluded
from participation in any program solely because of his disability.
See 42 U.S.C. § 12132.4
The factual affidavit and grievances submitted by Roberts
state that he has not received appropriate medical care at the NWCX
and that family members are unable to travel to the facility to
visit him.

He seeks to be transferred to the CBCX in Nashville,

Tennessee, and asserts that, because he is a Class B or Class C
inmate, he is ineligible for a transfer. A claim about substandard
medical care ordinarily is not actionable under Title II of the
ADA.

See, e.g., Brown v. Deparlos, 492 F. App’x 211, 215 (3d Cir.

2012) (“Brown’s complaint merely asserts that defendants violated
the ADA and fails to allege any facts that demonstrate that the
alleged inadequate or improper medical care he received was because
4

Perkins’ claim that the van trips to Nashville are painful might be
redressable in a suit under 42 U.S.C. § 1983 as a violation of the Eighth and
Fourteenth Amendments, provided the other requirements for suit are satisfied.

19

of a disability.”); Burger v. Bloomberg, 418 F.3d 882, 883 (8th
Cir. 2005) (per curiam) (challenge to medical treatment decisions
not actionable under ADA); Fitzgerald v. Corr. Corp. of Am., 403
F.3d 1134, 1144 (10th Cir. 2005) (“purely medical decisions . . .
do not ordinarily fall within the scope of the ADA”); Spencer v.
Easter, 109 F. App’x 571, 573 (4th Cir. 2004) (per curiam) (claim
of inadequate medical care not actionable under the ADA absent
evidence

of

discriminatory

intent

arising

from

prisoner’s

disability), cert. denied, 544 U.S. 911, 125 S. Ct. 1611, 161 L.
Ed. 2d 289 (2005); Baldridge-El v. Gundy, ___ F. App’x ___, 2000 WL
1721014, at *2 (6th Cir. 2000) (ADA does not provide a cause of
action for medical malpractice); Bryant v. Madigan, 84 F.3d 246,
249 (7th Cir. 1996) (“the [ADA] would not be violated by a prison’s
simply failing to attend to the medical needs of its prisoners”),
reh’g denied (Aug. 1, 1996).
Roberts’ allegations that he is ineligible for a transfer to
another TDOC facility because of his disability arguably asserts a
claim under Title II of the ADA.

Since the commencement of this

action, he was transferred from the NWCX to the CBCX, the prison
where he sought to be transferred.

Therefore, his claim for

injunctive relief under the ADA is moot.
App’x

561,

562

(6th

Cir.

2003)

(claims

Moore v. Curtis, 68 F.
for

declaratory

and

injunctive relief against prison staff moot when inmate transferred
to another facility); Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir.
1996) (same); Tramber v. Pleasant, No. 4:12CV-P31-M, 2012 WL
4594339, at *5 (W.D. Ky. Oct. 2, 2012) (inmate’s claim for a
20

transfer and medical care moot when he was transferred to another
facility).

Roberts’ assertion for money damages against the State

of Tennessee for past violations of the ADA is not moot.
Murdock’s grievances establish that there are no programs that
he can access at the NWCX “considering [his] offense” (D.E. 1-1 at
8), that he is ineligible for a transfer to the geriatric unit at
CBCX and DSNF because of his medical classification (id. at 7,
10—11, 14), and that he is ineligible for a transfer to take a
staff job at DSNF, CBCX, or RMSI because he is Class B medical (id.
at 13).

He also asserts that he is ineligible to transfer to an

institution that offers programs that can enhance his parole
eligibility

because

of

his

medical

classification as Class B medical.

conditions

and

his

(Id. at 15.)

Murdock’s claim that there are no programs for him at NWCX
“considering [his] offense” is not actionable under the ADA because
there is no allegation that he has been excluded from participation
in, been denied the benefits of, or excluded from participation in
any program solely because of his disability.

See 42 U.S.C. §

12132.
Murdock’s contention that he is not eligible for a transfer to
a geriatric unit at another TDOC prison because of his disability
arguably is actionable under Title II of the ADA.

His claim that

he is not eligible for transfer to the DSNF, CBCX, or RMSI and is
not eligible for a staff job at those facilities also is arguably
actionable under Title II of the ADA. The latter assertion appears

21

to be moot because Murdock has been transferred to the RMSI.5
Murdock’s claim for money damages against the State of Tennessee
for past discrimination is not moot.
Because Murdock and Roberts have allegations that might be
actionable under Title II of the ADA, it is necessary to proceed to
the next step of the analysis mandated by Georgia as to those
claims, namely, whether the conduct that violated the ADA also did
so with regard to the Fourteenth Amendment. None of the ADA claims
asserted by Murdock and Roberts are actionable under the Due
Process Clause of the Fourteenth Amendment.
due

process

is

implicated

only

if

a

An inmate’s right to

restriction

constitutionally protected liberty interest.

involves

a

Swarthout v. Cooke,

___ U.S. ___, 131 S. Ct. 859, 861, 178 L. Ed. 2d 732 (2011), reh’g
denied, ___ U.S. ___, 131 S. Ct. 1845, 179 L. Ed. 2d 796 (Apr. 4,
2011); Wilkinson v. Austin, 545 U.S. 209, 221, 125 S. Ct. 2384,
2393, 162 L. Ed. 2d 174 (2005).

“A liberty interest may arise from

the Due Process Clause or a state regulation.”

Grinter v. Knight,

532 F.3d 567, 573 (6th Cir. 2008). Any liberty interest created by
state law “will be generally limited to freedom from restraint
which . . . imposes atypical and significant hardship on the inmate
in relation to the ordinary incidents of prison life.”

Sandin v.

Conner, 515 U.S. 472, 484, 115 S. Ct. 2293, 2300, 132 L. Ed. 2d 418
(1995).

5

It is unclear whether Murdock has an incentive job at the RMSI and,
therefore, the claim seeking a transfer so he can obtain a prison job is not
moot. It also is not clear why Murdock could not get a prison job at the NWCX.

22

Prisoners
release

on

have

parole

no

constitutional

before

the

right

expiration

of

to

discretionary

their

sentences,

Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7,
99 S. Ct. 2100, 2104, 60 L. Ed. 2d 668 (1979); Inmates of Orient
Corr. Inst. v. Ohio State Adult Parole Auth., 929 F.2d 233, 235
(6th Cir. 1991), and “[p]risoners have no liberty interest in
opportunities to obtain good-time credits,” Martin v. O’Brien, 207
F. App’x 587, 589—90 (6th Cir. 2006).

Inmates also do not have a

liberty

in

interest

programs.

in

participation

prison

rehabilitation

See Moody v. Daggett, 429 U.S. 78, 88 n.9, 97 S. Ct.

274, 279 n.9, 50 L. Ed. 2d 236 (1976); Manning v. Unknown Parties,
56 F. App’x 710, 711 (6th Cir. 2003) (parole board’s recommendation
that inmate complete a program on impulse control did not create a
liberty

interest

requiring

his

admission

into

the

program);

Harrington v. Smokoska, ___ F. App’x ___, 1992 WL 376855, at *2
(6th Cir. 1992) (affirming dismissal of claim for inmate’s removal
from halfway house program, stating “[t]here is no liberty interest
in being placed in a community residential program or within any
particular prison in the state of Michigan”); Jones v. Nichols, ___
F. App’x ___, 1990 WL 151047, at *1 (6th Cir. 1990) (affirming
dismissal of claim that inmate was denied credit for barber
training classes, stating “[t]here is no constitutional right to
vocational or educational programs in prisons. Nor does Jones have
a state created liberty interest in such programs subject to due
process protection.”) (citations omitted); Molenkamp v. Brown, ___
F. App’x___, 1990 WL 75225, at *1 (6th Cir. 1990) (“Molenkamp has
23

no liberty interest in participation in the community release
program subject to due process protection, as participation in the
program rests within the discretion of prison authorities.”);
Canterino v. Wilson, 869 F.2d 948, 953 (6th Cir. 1989) (no liberty
interest in study and work-release programs); Frantz v. Mich. Dep’t
of Corr., No. 1:11-cv-584, 2011 WL 3100564, at *7 (W.D. Mich. July
25, 2011) (“Federal courts consistently have found that inmates
have no constitutionally protected liberty interest in prison
employment, vocational, rehabilitation, and educational programs
based on the Fourteenth Amendment.”) (collecting cases); Bush v.
Hogsten, No. 6:11-CV-00167-KSF, 2011 WL 2682971, at *3 (E.D. Ky.
July 11, 2011) (dismissing habeas petition requesting placement in
federal Residential Drug Abuse Treatment Program, explaining that
“it

is

well

settled

that

prisoners

have

no

constitutionally

protected liberty interest in either discretionary release prior to
the expiration of their prison terms or participation in any prison
rehabilitation programs”) (citation omitted); Jones v. Benion, No.
2:10-CV-12360-DT, 2011 WL 2221166, at *3—4 (E.D. Mich. May 13,
2011)

(report

property

and

interest

recommendation)
in

participation

(inmate
in

has

programs

no

liberty

required

or
for

parole), adopted, 2011 WL 2183384 (E.D. Mich. June 6, 2011).
“[T]he Constitution does not create a property or liberty
interest in prison employment [and] any such interest must be
created by state law by language of an unmistakably mandatory
character.”

Newsom v. Norris, 888 F.2d 371, 374 (6th Cir. 1989)

(internal quotation marks & citations omitted).
24

The Sixth Circuit

has consistently rejected claims by prisoners based on their loss
of, or failure to be assigned to, a prison job.

See, e.g., Shields

v. Campbell, 83 F. App’x 72, 74 (6th Cir. 2003), cert. denied sub
nom. Shields v. White, 541 U.S. 996, 124 S. Ct. 2033, 158 L. Ed. 2d
505 (2004); Carter v. Tucker, 69 F. App’x 678, 680 (6th Cir. 2003);
Jewell v. Leroux, 20 F. App’x 375, 377 (6th Cir. 2001); Dellis v.
Corr. Corp. of Am., 257 F.3d 508, 511 (6th Cir. 2001); Ivey v.
Wilson, 832 F.2d 950, 955 (6th Cir. 1987).
Inmates also do not have a liberty interest in their prison
assignments. See, e.g., Olim v. Wakinekona, 461 U.S. 238, 245, 103
S. Ct. 1741, 1745, 75 L. Ed. 2d 813(1983) (“Just as an inmate has
no justifiable expectation that he will be incarcerated in any
particular prison within a State, he has no justifiable expectation
that he will be incarcerated in any particular State.”); Meachum v.
Fano, 427 U.S. 215, 224—25, 96 S. Ct. 2532, 2538, 49 L. Ed. 2d 451
(1976) (Due Process Clause not implicated by assignment of prisoner
to

any

prison

within

a

state

or

by

transfer

to

another

institution), reh’g denied, 429 U.S. 873, 97 S. Ct. 191, 50 L. Ed.
2d 155 (Oct. 4, 1976); Montanye v. Haymes, 427 U.S. 236, 243, 96 S.
Ct. 2543, 2547, 49 L. Ed 2d 466 (1976) (inmate had no liberty
interest in “remain[ing] at any particular prison facility and no
justifiable expectation that he would not be transferred unless
found guilty of misconduct”); Newell v. Brown, 981 F.2d 880, 883
(6th Cir. 1992) (federal law does not create any liberty interest
that would allow a state prisoner to avoid a reclassification and
transfer to a close security prison), cert. denied, 510 U.S. 842,
25

114 S. Ct. 127, 126 L. Ed. 2d 91 (1993); Beard v. Livesay, 798 F.2d
874,

876

(6th

Cir.

1986)

(“A

prisoner

has

no

inherent

constitutional right to be housed in a particular institution or to
enjoy a particular security classification.”) (citations omitted).
The claims of Murdock and Roberts arise only under the Equal
Protection Clause of the Fourteenth Amendment.

The Court declines

to dismiss those claims as barred by Popovich at this stage of the
litigation because it is not clear whether the inmates are claiming
that their disabilities render them members of a protected class
for equal protection purposes or whether they contend that there is
no rational basis of their unequal treatment.
Butler, 591 F.3d at 483.

See Mingus v.

For the same reason, it is premature to

address the third step of the Georgia analysis, which assumes that
a prisoner has asserted a valid claim under the ADA that does not
also violate the Fourteenth Amendment.
The Sixth Circuit recently held that a district court may
allow a prisoner to amend his complaint to avoid a sua sponte
dismissal under the PLRA.

LaFountain v. Harry, 716 F.3d 944, 951

(6th Cir. 2013); see also Brown v. Rhode Island, 511 F. App’x 4, 5
(1st Cir. 2013) (per curiam) (“Ordinarily, before dismissal for
failure to state a claim is ordered, some form of notice and an
opportunity to cure the deficiencies in the complaint must be
afforded.”). Leave to amend is not required where a deficiency
cannot be cured. Brown, 511 F. App’x at 5; Grayson v. Mayview State
Hosp., 293 F.3d 103, 114 (3d Cir. 2002) (“in forma pauperis
plaintiffs who file complaints subject to dismissal under Rule
26

12(b)(6) should receive leave to amend unless amendment would be
inequitable or futile”);

Gonzalez-Gonzalez v. United States, 257

F.3d 31, 37 (1st Cir. 2001) (“This does not mean, of course, that
every sua sponte dismissal entered without prior notice to the
plaintiff automatically must be reversed.

If it is crystal clear

that the plaintiff cannot prevail and that amending the complaint
would be futile, then a sua sponte dismissal may stand.”); Curley
v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001) (“We agree with the
majority view that sua sponte dismissal of a meritless complaint
that cannot be salvaged by amendment comports with due process and
does not infringe the right of access to the courts.”), cert.
denied, 534 U.S. 922, 122 S. Ct. 274, 151 L. Ed. 2d 201 (2001).
The claims against the Defendants Schofield, Hodge, Mills, Jones,
Tirey, Phillips, and Collins in their individual capacities cannot
be cured by amendment for the reasons previously stated. See supra
p. 13.
The

Court

cannot

conclude

that

any

amendment

to

each

Plaintiff’s remaining claims would be futile as a matter of law.
Therefore, leave to amend is GRANTED. All of the Plaintiffs will be
allowed to file a separate amended complaint pertaining to his
treatment at the NWCX.

Any amendment must be filed within thirty

days of the date of entry of this order.

Plaintiffs are advised

that an amended complaint supersedes the original complaint and
must be complete in itself without reference to the prior pleading.
The text of the amended complaint must allege sufficient facts to
support each claim without reference to any extraneous document.
27

Any exhibits must be identified by number in the text of the
amended complaint and must be attached to the complaint.

The

amendment may not include any claim that was not in the original
complaint.

Each claim for relief must be stated in a separate

count and must identify each defendant sued in that count.

If any

Plaintiff fails to file an amended complaint within the time
specified, the Court will dismiss the action as to that Plaintiff
and will assess a strike pursuant to 28 U.S.C. § 1915(g).
IT IS SO ORDERED this 26th day of September, 2013.

s/J. DANIEL BREEN
UNITED STATES DISTRICT JUDGE

28