Lively v. Lindamood et al

Filing 10

ORDER DISMISSING COMPLAINT AND GRANTING LEAVE TO AMEND. Signed by Judge James D. Todd on 9/9/15. (Todd, James)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
_____________________________________________________________________________
RICKY Q. LIVELY,

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Plaintiff,
vs.
CHERRY LINDAMOOD, et al.,
Defendants.

No. 1:14-cv-1241-JDT-egb

ORDER DISMISSING COMPLAINT AND GRANTING LEAVE TO AMEND

On September 16, 2014, Plaintiff Ricky Q. Lively (“Lively”) who is an inmate at the
Morgan County Correctional Complex in Watrburg, Tennessee filed a pro se complaint pursuant
to 42 U.S.C. § 1983 based on events occurring at Whiteville Correctional Facility (“WCF”)
accompanied by a motion asking leave to proceed in forma pauperis. (ECF Nos. 1 & 2). In an
order issued September 3, 2014, the Court granted leave to proceed in forma pauperis and
assessed the civil filing fee pursuant to the Prison Litigation Reform Act of 1006 (“PLRA”), 28
U.S.C. §§ 1915(a)-(b). (ECF No. 4).

The Clerk shall record the defendants as Cherry

Lindamood and Mrs. Doaks, Nurse Practioner.
I. THE COMPLAINT AND AMENDED COMPLAINT
Lively alleges that in January 2013, when he arrived at WCF, he informed unnamed
individuals during intake of his Hepatitis C condition and was told that he would be given blood
work on a regular basis. (Compl. 2, ECF. No. 1.) Lively contends that in August his blood work
was ordered, but not taken. (Id.) He also alleges that Defendant Doaks stated that they would
take his blood. (Id.) In his amended complaint, Lively claims that his blood was only taken in

December of 2013, and then again in September 2014, after a grievance was filed. (Amended
Compl. 12, ECF No. 4.) Lively added an allegation that Defendant Doaks stated he is not
eligible for treatment due to having tattoos and being a previous drug user. (Id.) Lively requests
adequate medical attention and treatment as well as money damages from both Defendants for
pain and suffering. (Id.)
II. ANALYSIS
A.

Screening and Standard
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).
In assessing whether the complaint in this case states a claim on which relief may be
granted, the standards under Fed. R. Civ. P. 12(b)(6), as stated in Ashcroft v. Iqbal, 556 U.S. 662,
677-79 (2009), and in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007), are applied.
Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). “Accepting all well-pleaded allegations in
the complaint as true, the Court ‘consider[s] the factual allegations in [the] complaint to
determine if they plausibly suggest an entitlement to relief.’” Williams v. Curtin, 631 F.3d 380,
383 (6th Cir. 2011) (quoting Iqbal, 556 U.S. at 681) (alteration in original). “[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; see also Twombly, 550 U.S. at 555 n.3 (“Rule 8(a)(2) still
requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief. Without some

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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 (citing Neitzke v. Williams, 490 U.S. 319, 325, 328-29 (1989)).
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.” Neitzke, 490 U.S. at 327, 109 S. Ct. 1827 (interpreting 28
U.S.C. § 1915). Unlike a dismissal for failure to state a claim, where a judge
must accept all factual allegations as true, Iqbal, 129 S. Ct. at 1949-50, a judge
does not have to accept “fantastic or delusional” factual allegations as true in
prisoner complaints that are reviewed for frivolousness. Neitzke, 490 U.S. at
327-28, 109 S. Ct. 1827.
Id. at 471.
“Pro se complaints are to be held ‘to less stringent standards than formal pleadings
drafted by lawyers,’ and should therefore be liberally construed.” Williams, 631 F.3d at 383
(quoting Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004)). Pro se litigants and prisoners
are not exempt from the requirements of the Federal Rules of Civil Procedure. As the Sixth
Circuit has explained:
Before the recent onslaught of pro se prisoner suits, the Supreme Court
suggested that pro se complaints are to be held to a less stringent standard than
formal pleadings drafted by lawyers. See Haines v. Kerner, 404 U.S. 519
(1972) (per curiam). Neither that Court nor other courts, however, have been
willing to abrogate basic pleading essentials in pro se suits. See, e.g., id. at 521
(holding petitioner to standards of Conley v. Gibson); Merritt v. Faulkner, 697
F.2d 761 (7th Cir.) (duty to be less stringent with pro se complaint does not
require court to conjure up unplead allegations), cert. denied, 464 U.S. 986
(1983); McDonald v. Hall, 610 F.2d 16 (1st Cir.1979) (same); Jarrell v. Tisch,
656 F. Supp. 237 (D.D.C. 1987) (pro se plaintiffs should plead with requisite
specificity so as to give defendants notice); Holsey v. Collins, 90 F.R.D. 122
(D. Md. 1981) (even pro se litigants must meet some minimum standards).

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Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989); see also Brown v. Matauszak, No. 09-2259,
2011 WL 285251, at *5 (6th Cir. Jan. 31, 2011) (affirming dismissal of pro se complaint for
failure to comply with “unique pleading requirements” and stating “a court cannot ‘create a
claim which [a plaintiff] has not spelled out in his pleading’”) (quoting Clark v. Nat’l Travelers
Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975)) (alteration in original); 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 (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. 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.”).
B.

§ 1983 Claim
Lively filed his amended complaint on the court-supplied form for actions under 42

U.S.C. § 1983. (ECF No. 4.) Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia, subjects,
or causes to be subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress, except that
in any action brought against a judicial officer for an act or omission taken in
such officer's judicial capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was unavailable. For the
purposes of this section, any Act of Congress applicable exclusively to the

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District of Columbia shall be considered to be a statute of the District of
Columbia.
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) a deprivation
of rights secured by the “Constitution and laws” of the United States (2) committed by a
defendant acting under color of state law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150
(1970).
1.

Defendant Lindamood, Supervisor

It is clear that Bryant sues Defendant Lindamood because of her supervisory capacities as
Warden at WCF. (Compl. 2, ECF No. 1.) Under 42 U.S.C. § 1983, “[g]overnment officials may
not be held liable for the unconstitutional conduct of their subordinates under a theory of
respondeat superior.” Ashcroft v. Iqbal, 556 U.S. at 676; see also Bellamy v. Bradley, 729 F.2d
416, 421 (6th Cir. 1984). Thus, “a plaintiff must plead that each Government-official defendant,
through the official’s own official actions, violated the Constitution.” Iqbal, 556 U.S. at 676.
There must be a showing that the supervisor encouraged the specific instance of
misconduct or in some other way directly participated in it. At a minimum, a §
1983 plaintiff must show that a supervisory official at least implicitly authorized,
approved or knowingly acquiesced in the unconstitutional conduct of the
offending subordinates.
Bellamy, 729 F.2d at 421 (citation omitted).

A supervisory official, who is aware of the

unconstitutional conduct of his or her subordinates, but fails to act, generally cannot be held
liable in his or her individual capacity. Grinter v. Knight, 532 F.3d 567, 575-76 (6th Cir. 2008);
Gregory v. City of Louisville, 444 F.3d 725, 751 (6th Cir. 2006); Shehee v. Luttrell, 199 F.3d
295, 300 (6th Cir. 1999); Lillard v. Shelby Cnty. Bd. of Educ., 76 F.3d 716, 727-28 (6th Cir.
1996). The complaint does not allege that Defendant Lindamood, through her own actions,
violated Lively’s rights.

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2.

Eighth Amendment Claim for Medical Indifference against Defendant Doaks

The Eighth Amendment to the United States Constitution prohibits cruel and unusual
punishment. See generally Wilson v. Seiter, 501 U.S. 294 (1991). An Eighth Amendment claim
consists of both objective and subjective components. Farmer v. Brennan, 511 U.S. 825, 834
(1994); Hudson v. McMillian, 503 U.S. 1, 8 (1992); Wilson, 501 U.S. at 298; Williams v. Curtin,
633 F.3d at 383; Mingus v. Butler, 591 F.3d 474, 479-80 (6th Cir. 2010). The objective
component requires that the deprivation be “sufficiently serious.” Farmer, 511 U.S. at 834;
Hudson, 503 U.S. at 8; Wilson, 501 U.S. at 298.
Under Estelle v. Gamble, 429 U.S. 97, 104 (1976), “deliberate indifference to serious
medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain,’. . .
proscribed by the Eighth Amendment.” However, not “every claim by a prisoner that he has not
received adequate medical treatment states a violation of the Eighth Amendment.” Estelle, 429
U.S. at 105. “In order to state a cognizable claim, a prisoner must allege acts or omissions
sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such
indifference that can offend ‘evolving standards of decency’ in violation of the Eighth
Amendment.” Id. at 106.
Within the context of Estelle claims, the objective component requires that the medical
need be sufficiently serious. Hunt v. Reynolds, 974 F.2d 734, 735 (6th Cir. 1992). “A medical
need is serious if it 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.” Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980) (quoting Laaman v. Helgemoe,
437 F. Supp. 269, 311 (D.N.H. 1977)).

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To make out a claim of an Eighth Amendment Estelle violation, a prisoner must plead
facts showing that “prison authorities have denied reasonable requests for medical treatment in
the face of an obvious need for such attention where the inmate is thereby exposed to undue
suffering or the threat of tangible residual injury.” Westlake v. Lucas, 537 F.2d 857, 860 (6th
Cir. 1976). The Court clarified the meaning of deliberate indifference in Farmer v. Brennan, as
the reckless disregard of a substantial risk of serious harm; mere negligence will not suffice. Id.
511 U.S. at 835-36. Lively’s complaint does not provide any statement of harm created by
Defendant Doaks’ actions. His only claim is that he asked for blood to be taken, and it has not
been taken on a regular basis. Because there is no allegation of harm, Defendant Doaks’ actions
no not rise to deliberate indifference to a serious medical need. The allegations are insufficient
to demonstrate circumstances endangering plaintiff or causing him harm amounting to the cruel
and unusual punishment prohibited by the Eighth Amendment.
C.

Motion to Appoint Counsel
On September 24, 2014, Lively filed a motion for appointment of counsel. (ECF No. 6.)

Pursuant to 28 U.S.C. § 1915(d), the “court may request an attorney to represent any such person
unable to employ counsel.” However, “[t]here is no constitutional or . . . statutory right to
counsel in federal civil cases.” Farmer v. Haas, 990 F.2d 319, 323 (7th Cir. 1993), and “§
1915(d) does not authorize the federal courts to make coercive appointments of counsel” to
represent indigent civil litigants, Mallard v. United States Dist. Court, 490 U.S. 296, 310 (1989).
Generally, a court will only appoint counsel in exceptional circumstances. Willett v. Wells, 469
F. Supp. 748, 751 (E.D. Tenn. 1977). Although “no comprehensive definition of exceptional
circumstances is practical,” Branch v. Cole, 686 F.2d 264, 266 (5th Cir. 1982), courts resolve
this issue through a fact-specific inquiry. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.

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1986). Examining the pleadings and documents in the file, the Court analyzes the merits of the
claims, the complexity of the case, the pro se litigant’s prior efforts to retain counsel, and his
ability to present the claims. Henry v. City of Detroit Manpower Dep’t, 763 F.2d 757, 760 (6th
Cir. 1985); Wiggins v. Sargent, 753 F.2d 663, 668 (8th Cir. 1985).
As a general rule, counsel should be appointed in civil cases only if a litigant has made “a
threshold showing of some likelihood of merit.” Cooper v. A. Sargenti Co., 877 F.2d 170, 174
(2d Cir. 1989). Because the complaint is to be dismissed, the motion is DENIED. 
III.

LEAVE TO AMEND

The Sixth Circuit has 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. R.I., No. 12-1403, 2013 WL 646489, at *1 (1st Cir. Feb.
22, 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, 2013 WL 646489, at
*1; 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.”); 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 12(b)(6) should receive leave to amend unless amendment would
be inequitable or futile”); 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.”).

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IV.

CONCLUSION

The Court DISMISSES the complaint for failure to state a claim on which relief can be
granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).

However, with the

exception of Lively’s § 1983 claims against Defendant Lindamood, the court cannot conclude
that any amendment to Lively’s claims would be futile as a matter of law. Therefore, Lively is
GRANTED leave to amend his complaint as to Defendants Doaks. Any amendment must be
filed within thirty (30) days of the date of entry of this order. Lively is advised that an amended
complaint supersedes the original complaint and must be complete in itself without reference to
the prior pleadings. The text of the complaint must allege sufficient facts to support each claim
without reference to any extraneous document. Any exhibits must be identified by number in the
text of the amended complaint and must be attached to the complaint. All claims alleged in an
amended complaint must arise from the facts alleged in the original complaint or the first
amended complaint. Lively may add additional defendants provided that the claims against the
new parties arise from the acts and omissions set forth in the original or first amended
complaints. Each claim for relief must be stated in a separate count and must identify each
defendant sued in that count. If Lively fails to file an amended complaint within the time
specified, the Court will assess a strike pursuant to 28 U.S.C. § 1915(g) and enter judgment.
Lively shall promptly notify the Clerk of any change of address or extended absence.
Failure to comply with these requirements, or any other order of the Court, may result in the
dismissal of this case without further notice.
IT IS SO ORDERED.

_s/James D. Todd___________
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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