Johnson v. Corizon Health Inc. et al

Filing 25

ORDER DISMISSING SECOND AMENDED COMPLAINT, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by Judge James D. Todd on 3/27/18. (skc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
BOBBY JOHNSON,
Plaintiff,
VS.
CORIZON HEALTH, INC., ET AL.,
Defendants.

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No. 14-1306-JDT-egb

ORDER DISMISSING SECOND AMENDED COMPLAINT,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

The pro se Plaintiff, Bobby Johnson a/k/a Bobbie Johnson, filed this action pursuant
to 42 U.S.C. § 1983 on November 6, 2014, while he was an inmate at the Northwest
Correctional Complex (NWCX) in Tiptonville, Tennessee. (ECF No. 1.)1 He complains that
the medical treatment he received at the NWCX was inadequate in violation of the Eighth
Amendment. The Court granted leave to proceed in forma pauperis and assessed the civil
filing fee pursuant to 28 U.S.C. §§ 1915(a)-(b). (ECF No. 4.) On November 26, 2014,
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The Defendants named in the original complaint were Corizon Health, Inc.; Corizon,
Inc.; Dr. Carl Keldie, the national medical director for Corizon in November and December
2012; Becky Pinney, the chief nursing officer for Corizon in November and December 2012; Dr.
John Louis Hochberg and Dr. Vernita Duncan, both of whom were alleged to be the NWCX
Medical Director; Amanda Collins, the Chief Nursing Officer at the NWCX; Samantha Phillips,
the NWCX Health Services Administrator; the State of Tennessee; the Tennessee Department of
Correction (TDOC); former NWCX Warden Henry Steward; NWCX Deputy Warden Brad
Poole; and NWCX Associate Warden Melvin Tirey.

Plaintiff filed a first amendment to the complaint in which he named several additional
Defendants.2 (ECF No. 6.) On February 10, 2015, the Court issued an order dismissing the
complaint and the first amendment for failure to state a claim but granted leave to file a
second amended complaint. (ECF No. 10.) Plaintiff filed a timely second amended
complaint on February 27, 2015. (ECF No. 11.) On April 16, 2015, Plaintiff notified the
Court he had been released from prison and provided a new address. (ECF No. 17.)
The Corizon Defendants, which are also named as parties in the second amended
complaint, filed an answer (ECF No. 14) and a motion for summary judgment (ECF No. 22).3
Plaintiff did not respond, and Corizon’s motion for summary judgment was granted. (ECF
No. 24.)
In the prior order of dismissal, the Court found that all of Plaintiff’s claims arising
before November 6, 2013 were time barred. (ECF No. 10 at 13-14.) The second amended
complaint only concerns Plaintiff’s medical treatment that occurred from January 14, 2014,
through December 11, 2014. The second amended complaint again names as Defendants the
TDOC; NWCX Chief Nursing Officer Amanda Collins; former TDOC Commissioner
Derrick Schofield; former NWCX Warden Henry Steward; NWCX Deputy Warden Brad

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The additional Defendants named in Plaintiff’s first amendment were former TDOC
Commissioner Derrick Schofield; TDOC Deputy Commissioners of Operations Catherine Posey
and Jim Thrasher; TDOC Commissioner of Operations Reuben Hodge; TDOC Director of
Health Services Donna K. White; and TDOC Medical Director of Clinical Services Lester
Lewis.
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It is unclear how why Corizon responded to the second amended complaint, as no
process has been issued in this case for any Defendant.
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Poole; and NWCX Associate Warden Melvin Tirey. Additional Defendants named in the
second amended complaint are Dr. First Name Unknown K, a physician at the NWCX;
Tommie Hamilton, a Family Nurse Practitioner (FNP) at the NWCX; and Recie Yanders, a
health administrator at the NWCX.
Plaintiff does not expressly state in the second amended complaint whether the
Defendants are sued in their individual capacities in addition to their official capacities.
However, because he seeks compensatory and punitive damages (ECF No. 11 at 14), the
Court will construe the complaint as asserting both official and individual capacity claims.
Plaintiff’s second amended complaint alleges that he received a sick-call pass to visit
Defendant Collins on January 14, 2014. (Id. at 6-7, ¶ 14.) Collins allegedly asked Plaintiff
whether he had been exercising and taking his medication, and Plaintiff replied that the blood
pressure medication caused him to suffer severe chest and stomach pains and other
unspecified adverse side effects. (Id.) However, Collins allegedly did not perform any tests
or evaluation of Plaintiff’s complaints, even though he explained that his symptoms included
difficulty breathing and the inability to perform normal daily activities. (Id. at 7, ¶ 15.)
Although Collins told Plaintiff she would refer him to see a doctor, he states he did not see
a doctor until October 2, 2014. (Id.)
Plaintiff alleges he was called to the clinic on January 17, 2014, and January 19, 2014,
where his blood pressure was checked. (Id., ¶ 16.)
Plaintiff states that he filed a grievance against Collins on April 17, 2014 for her
failure to refer him to a doctor and her failure to properly evaluate his complaints or to order
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necessary tests. (Id. ¶ 17.) Defendant Yanders allegedly reviewed the grievance but ignored
Plaintiff’s requests for medical attention. (Id.)
Plaintiff alleges he received a sick call pass to see Defendant Dr. K on October 2,
2014. (Id. at 7, ¶ 18.) Dr. K checked Plaintiff’s blood pressure, listened to his heart and had
him perform “recommended breathing evaluations.” (Id.) Dr. K allegedly reviewed
Plaintiff’s medical records and told him that when he got out of prison Plaintiff should look
at the records before they were archived after thirty days. (Id.) However, Plaintiff alleges
Dr. K did not do any other tests or evaluations even though Plaintiff explained to him about
the pain in his chest and left shoulder and numbness in his fingertips and forearm. (Id. at 7-8,
¶ 18.)
Plaintiff states he was called to the clinic on October 6, 2014 and November 6, 2014,
where his blood pressure was checked. (Id. at 8, ¶ 19.)
Plaintiff further alleges he received a sick call pass on December 11, 2014, and was
seen by Defendant FNP Hamilton. (Id. ¶ 20.) Hamilton checked Plaintiff’s blood pressure
and asked another nurse to listen to his heart, and that nurse allegedly told Plaintiff his heart
“has a single beat unlike what a regular normal heart has.” (Id.) Hamilton then allegedly
told Plaintiff he had “a serious case of aorta regurgitation.” (Id.) However, Plaintiff states
Hamilton performed no other tests or evaluations even after he explained his ongoing
symptoms. (Id.)
Plaintiff asserts that on June 7, 2014, he requested emergency medical treatment while
the prison was on lockdown. (Id. at 11, ¶ 34.) Plaintiff was taken to the clinic in a
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wheelchair where he states that he described his symptoms to an unspecified nurse, including
sharp chest and left side pain and numbness in the fingertips, left forearm and left shoulder.
(Id.) The nurse allegedly performed an EKG and checked Plaintiff’s blood pressure, which
was 150/100; she gave Plaintiff an aspirin and a nitroglycerin pill. (Id.) Shortly thereafter,
when the facility came off lockdown, Plaintiff alleges he approached Defendants Steward
and Tirey during their daily inspections and had a conversation with Steward concerning the
failure to treat his medical problems. (Id. ¶ 35.) However, Steward responded there was
nothing he could do and Plaintiff should go to the nurses at the clinic. (Id. ¶ 36.)
Plaintiff alleges the grievance he filed against Defendant Collins on April 17, 2014,
was exhausted through the former Warden, Defendant Steward, and the former TDOC
Commisioner, Defendant Schofield. (Id. at 11, ¶ 33.) Plaintiff further alleges the grievance
put Defendants Steward, Tirey and Poole on notice of the inadequate medical care he was
receiving.

(Id. at 12, ¶ 37.)

He asserts these Defendants had a “personal role in

implementing or enforcing or ignoring” a “policy of providing only cursory medical
treatment to inmates.” (Id.) Plaintiff further asserts Defendants Steward, Tirey and Poole
each had the necessary “personal involvement in decisions that he otherwise authorized,
approved,or knowingly acquiesced in unconstitutional conduct, given free reign to medical
staff . . . indicating they failed their duty to oversee and correct the problems. . . .” (Id. ¶ 38.)

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In several respects, the second amended complaint suffers from the same deficiencies
as the original and amended complaints.4 As stated in the prior order, Plaintiff’s claims
against the TDOC and his official capacity claims against Defendants Schofield, Steward,
Poole and Tirey are treated as claims against the State of Tennessee. As such, they are barred
by the Eleventh Amendment’s grant of sovereign immunity. Welch v. Tex. Dep’t of
Highways & Pub. Transp., 483 U.S. 468, 472 (1987); Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100 (1984); see also Tenn. Code Ann. § 20-13-102(a).
Plaintiff’s official capacity claims against the NWCX medical staff, Defendants
Collins, Dr. K, Hamilton and Yanders, also fail to state a valid claim. The Court granted
Corizon’s motion for summary judgment on the ground that the medical services provider’s
contract with TDOC was terminated in September 2013; therefore, the company was not
involved in Plaintiff’s medical care after that date. (ECF No. 24 at 3.) Plaintiff has not
identified the corporation that provided medical services to inmates at the NWCX for the
time period referenced in the second amended complaint. Therefore, he can point to no
official policy or custom of any such corporation that caused his injury. See Thomas v.
Coble, 55 F. App’x 748, 748 (6th Cir. 2003) (citing Street v. Corr. Corp. of Am., 102 F.3d
810, 814 (6th Cir. 1996)); see also Parsons v. Caruso, 491 F. App’x 597, 609 (6th Cir. 2012)
(private corporation that provides medical care to prisoners can be sued under § 1983);
Braswell v. Corr. Corp. of Am., 419 F. App’x 622, 627 (6th Cir. 2011) (private corporation

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The general standards for evaluating a prisoner’s complaint were set out in the prior
order of dismissal and will not be reiterated here.
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providing medical care for prisoners cannot be liable under § 1983 unless it is shown that a
policy or custom of the corporation was behind the deprivation of rights).
Plaintiff has sued Defendants Schofield, Steward, Poole, Tirey and Yanders because
of their respective positions as former TDOC Commissioner, former NWCX Warden,
NWCX Deputy Warden, NWCX Associate Warden and NWCX health administrator. He
alleges that their failure to take action in response to his grievances about alleged inadequate
medical care is sufficient to support liability under § 1983.
As stated in the prior order of dismissal, in order for supervisors to be held liable
under § 1983, a plaintiff must plead that “that each Government-official defendant, through
the official’s own official actions, violated the Constitution.” Ashcroft v. Iqbal, 556 U.S.
662, 676 (2009). Respondeat superior is not enough. Id.; see also Bellamy v. Bradley, 729
F.2d 416, 421 (6th Cir. 1984). 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). The
knowledge gained through an inmate grievance or complaint ordinarily does not supply the
necessary personal involvement for § 1983 liability. See George v. Smith, 507 F.3d 605,
609-10 (7th Cir. 2007) (“Ruling against a prisoner on an administrative complaint does not
cause or contribute to the [constitutional] violation. A guard who stands and watches while
another guard beats a prisoner violates the Constitution; a guard who rejects an
administrative complaint about a completed act of misconduct does not.”).

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Plaintiff has not alleged sufficient personal involvement on the part of Schofield,
Steward, Poole or Tirey to support liability. Plaintiff does allege that he actually spoke to
Defendant Steward on one occasion about the need for additional care and that Steward told
him to go to the clinic. However, Plaintiff’s description of that one brief encounter is not
enough to support a claim that Steward was personally involved in the alleged denial of
medical care.
The second amended complaint also fails to state an Eighth Amendment claim against
Defendants Collins, Hamilton, or Dr. K. An Eighth Amendment claim consists of both
objective and subjective components. Farmer v. Brennan, 511 U.S. 825, 834 (1994). The
objective component requires that the deprivation be “sufficiently serious.” Farmer, 511
U.S. at 834. The subjective component requires that the official act with the requisite intent,
that is, that he have a “sufficiently culpable state of mind.” Farmer, 511 U.S. at 834.
The objective component of an Eighth Amendment claim for inadequate medical care
requires that a prisoner have a serious medical need. Blackmore v. Kalamazoo Cnty., 390
F.3d 890, 895 (6th Cir. 2004); Brooks v. Celeste, 39 F.3d 125, 128 (6th Cir. 1994). “[A]
medical need is objectively 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 readily recognize
the necessity for a doctor’s attention.” Blackmore, 390 F.3d at 897 (internal quotation marks
and citations omitted).
To establish the subjective component of an Eighth Amendment medical claim, a
prisoner must demonstrate that the prison official acted with “deliberate indifference” to a
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substantial risk that the prisoner would suffer serious harm. Farmer, 511 U.S. at 834;
Helling v. McKinney, 509 U.S. 25, 32 (1993). “[D]eliberate indifference describes a state of
mind more blameworthy than negligence.” Farmer, 511 U.S. at 835.
A prison official cannot be found liable under the Eighth Amendment for
denying an inmate humane conditions of confinement unless the official
knows of and disregards an excessive risk to inmate health or safety; the
official must both be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also draw the
inference.
Id. at 837. “‘[T]hat a [medical professional] has been negligent in diagnosing or treating a
medical condition does not state a valid claim . . . under the Eighth Amendment.’”
Dominguez v. Corr. Med. Servs., 555 F.3d 543, 550 (6th Cir. 2009) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)). “The requirement that the official have subjectively
perceived a risk of harm and then disregarded it is meant to prevent the constitutionalization
of medical malpractice claims; thus, a plaintiff alleging deliberate indifference must show
more than negligence or the misdiagnosis of an ailment.” Comstock, 273 F.3d at 703.
“When a doctor provides treatment, albeit carelessly or inefficaciously, to a prisoner, he has
not displayed a deliberate indifference to the prisoner’s needs, but merely a degree of
incompetence which does not rise to the level of a constitutional violation.” Id.; see also
Johnson, 398 F.3d at 875 (same). “‘[D]eliberate indifference to a substantial risk of serious
harm to a prisoner is the equivalent of recklessly disregarding that risk.’” Comstock, 273
F.3d at 703 (quoting Farmer, 511 U.S. at 836). “A medical decision not to order an X-ray,

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or like measures, does not represent cruel or unusual punishment. At most it is medical
malpractice, and as such the proper forum is the state court.” Estelle, 429 U.S. at 107.
Plaintiff does not allege that he did not receive any medical treatment during the
period in question, as he was seen by nurses, a physician, and a nurse practitioner. He
complains, in essence, because he was not provided with additional tests he thought were
needed. The failure of Defendants Collins, Dr. K, and Hamilton to order additional tests for
Plaintiff amounts, at most, to medical malpractice, not deliberate indifference. Plaintiff also
alleges that Defendant Collins told him on January 14, 2014, that she would refer him to see
a doctor, but he did not actually see a doctor until October 2, 2014. However, Plaintiff does
not sufficiently allege that the eight-month delay in seeing a doctor caused his condition to
worsen. This allegation against Collins also does not rise to the level of deliberate
indifference.
For the foregoing reasons, Plaintiff’s second amended complaint is DISMISSED for
failure to state a claim on which relief may be granted, under 28 U.S.C. §§ 1915(e)(2)(B)(ii)(iii) and 1915A(b)(1)-(2).
It is CERTIFIED, pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rule of Appellate
Procedure 24, that an appeal by Plaintiff in this case would not be taken in good faith. Leave
to appeal in forma pauperis is, therefore, DENIED.
For analysis under 28 U.S.C. § 1915(g) of future filings, if any, by Plaintiff, this is the
first dismissal of one of his cases as frivolous or for failure to state a claim. This “strike”

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shall take effect when judgment is entered. Coleman v. Tollefson, 135 S. Ct. 1759, 1763-64
(2015).
The Clerk is directed to prepare a judgment.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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