Dunning v. Vastbinder et al

Filing 13

ORDER DISMISSING COMPLAINT AND GRANTING LEAVE TO AMEND. Signed by Judge James D. Todd on 4/14/16. (Todd, James)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
CHARLES DUNNING,
Plaintiff,

VS.

JERRY VASTBINDER, ET AL.,
Defendants.

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No. 15-1058-JDT-egb

ORDER DISMISSING COMPLAINT AND GRANTING LEAVE TO AMEND

On March 23, 2015, Plaintiff Charles Dunning (“Dunning”), who was, at the time,
confined at the Weakley County Jail in Dresden, Tennessee,1 filed a pro se complaint
pursuant to 42 U.S.C. § 1983, accompanied by a motion to proceed in forma pauperis.
(ECF Nos. 1 & 2.) After Dunning filed the required documentation, the Court issued an
order granting leave to proceed in forma pauperis and assessing the civil filing fee
pursuant to the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. §§ 1915(a)-(b). (ECF
Nos. 6 & 7). The Clerk shall record the Defendants as Obion County Sheriff Jerry
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When the complaint was filed, Dunning was incarcerated in Weakley County. (ECF
No. 1 at 2.) He subsequently notified the Clerk that he had been transferred into the custody of
the Tennessee Department of Correction, at the Bledsoe County Correctional Complex. (ECF
No. 9.) From there, he was transferred to the Northwest Correctional Complex. (ECF No. 10.)
According to the TDOC’s Felony Offender Information database, Dunning has been paroled and
is under supervision by the Office of Probation and Parole in Lexington, Tennessee. See
https://apps.tn.gov/foil-app/search.jsp. However, Dunning has not provided an updated address.

Vastbinder, Obion County Jail Captain First Name Unknown (“FNU”) Dean, and Obion
County Jail Medical Officer Barbara Crowder.
I. The Complaint
Dunning alleges that between September 2014 and February 2015, while housed at
the Obion County Jail, he was in severe pain due to cysts on both of his testicles. (ECF
No. 1 at 2.) After a nurse felt the affected area, she ordered an ultrasound. (Id.)
However, Dunning contends the Defendants would not approve the ultrasound due to the
cost and alleges that he continues to suffer severe pain. (Id.) Dunning is suing the
Defendants in both their individual and official capacities. (Id.) He seeks compensatory
and punitive damages. (Id. at 3.)
II. Analysis
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)
such relief.

seeks monetary relief from a defendant who is immune from

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 court applies the standards under Federal Rules of Civil Procedure
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). Hill v. Lappin, 630 F.3d 468, 470-71
(6th Cir. 2010). “Accepting all well-pleaded allegations in the complaint as true, the
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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 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.

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“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.
Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989); see also Brown v. Matauszak, No. 092259, 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.”).
Dunning filed his complaint on the court-supplied form for actions under 42
U.S.C. § 1983. Section 1983 provides:
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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 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).
Dunning’s claims against the Defendants in their official capacities are asserted
against Obion County. When a § 1983 claim is made against a municipality or county,
the court must analyze two distinct issues: (1) whether plaintiff’s harm was caused by a
constitutional violation; and (2) if so, whether the municipality is responsible for that
violation. Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120 (1992). The second
issue is dispositive of Dunning’s official capacity claims.
A local government “cannot be held liable solely because it employs a tortfeasor—
or, in other words, a municipality cannot be held liable under § 1983 on a respondeat
superior theory.” Monell v. Dep’t. of Soc. Serv., 436 U.S. 658, 691 (1978) (emphasis in
original); see also Searcy v. City of Dayton, 38 F.3d 282, 286 (6th Cir. 1994); Berry v.
City of Detroit, 25 F.3d 1342, 1345 (6th Cir. 1994). A municipality cannot be held
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responsible for a constitutional deprivation unless there is a direct causal link between a
municipal policy or custom and the alleged constitutional deprivation. Monell, 436 U.S.
at 691-92; Deaton v. Montgomery Co., Ohio, 989 F.2d 885, 889 (6th Cir. 1993). To
demonstrate municipal liability, a plaintiff “must (1) identify the municipal policy or
custom, (2) connect the policy to the municipality, and (3) show that his particular injury
was incurred due to execution of that policy.” Alkire v. Irving, 330 F.3d 802, 815 (6th
Cir. 2003) (citing Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir. 1993)).
“Where a government ‘custom has not received formal approval through the body’s
official decisionmaking channels,’ such a custom may still be the subject of a § 1983
suit.” Alkire, 330 F.3d at 815 (quoting Monell, 436 U.S. at 690-91). The policy or
custom “must be ‘the moving force of the constitutional violation’ in order to establish
the liability of a government body under § 1983.” Searcy, 38 F.3d at 286 (quoting Polk
Co. v. Dodson, 454 U.S. at 326 (citation omitted)). “[T]he touchstone of ‘official policy’
is designed ‘to distinguish acts of the municipality from acts of employees of the
municipality, and thereby make clear that municipal liability is limited to action for
which the municipality is actually responsible.’” City of St. Louis v. Praprotnik, 485 U.S.
112, 138 (1988) (quoting Pembaur v. Cincinnati, 475 U.S. 469, 479-80 (1986))
(emphasis in original).
Although civil rights plaintiffs are not required to plead the facts demonstrating
municipal liability with particularity, Leatherman v. Tarrant Cnty Narcotics Intelligence
& Coordination Unit, 507 U.S. 163, 168-69 (1993), the complaint must be sufficient to
put the municipality on notice of the plaintiff’s theory of liability, see, e.g., Fowler v.
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Campbell, No. 3:06CV-P610-H, 2007 WL 1035007, at *2 (W.D. Ky. Mar. 30, 2007);
Yeackering v. Ankrom, No. 4:05-CV-00018-M, 2005 WL 1877964, at *2 (W.D. Ky. Aug.
5, 2005); Oliver v. City of Memphis, No. 04-2074-B, 2004 WL 3316242, at *4 (W.D.
Tenn. Dec. 2, 2004); cf. Raub v. Correctional Med. Servs., Inc., No. 06-13942, 2008 WL
160611, at *2 (E.D. Mich. Jan. 15, 2008) (denying motion to dismiss where complaint
contained conclusory allegations of a custom or practice); Cleary v. Cnty of Macomb, No.
06-15505, 2007 WL 2669102, at *20 (E.D. Mich. Sept. 6, 2007) (same); Morningstar v.
City of Detroit, No. 06-11073, 2007 WL 2669156, at *8 (E.D. Mich. Sept. 6, 2007)
(same); Chidester v. City of Memphis, No. 02-2556 MA/A, 2006 WL 1421099, at *3
(W.D. Tenn. June 15, 2005). The allegations of the complaint fail to identify an official
policy or custom of Obion County which caused injury to Dunning.
Dunning complains about being denied medical treatment, specifically the refusal
to approve an ultrasound test. For a convicted prisoner, such claims arise under the
Eighth Amendment, which prohibits cruel and unusual punishments.

See generally

Wilson v. Seiter, 501 U.S. 294 (1991). In the case of a pretrial detainee such as Plaintiff,
“the ‘cruel and unusual punishment’ proscription of the Eighth Amendment to the
Constitution does not apply,” because “as a pre-trial detainee [the plaintiff is] not being
‘punished,’” Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000). Instead, a person
detained prior to conviction receives protection against mistreatment at the hands of
prison officials under the Due Process Clause of the Fourteenth Amendment if held in
state custody. Caiozzo v. Koreman, 581 F.3d 63, 69 (2d Cir. 2009); Liscio v. Warren,
901 F.2d 274, 275–76 (2d Cir.1990). Although it appears that Dunning was a pretrial
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detainee during the events at issue, the court will analyze his claims regarding a lack of
medical care under Eighth Amendment principles because the rights of pretrial detainees
are equivalent to those of convicted prisoners. Thompson v. Cnty. of Medina, 29 f.3d
238, 242 (6th Cir. 1994) (citing Roberts v. City of Troy, 773 F.2d 720, 723 (6th Cir.
1985).2
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.
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, 631 F.3d at 383; Mingus v.
2

On June 22, 2015, the Supreme Court held, in Kingsley v. Hendrickson, 135 S. Ct. 2466
(2015), that excessive force claims brought by pretrial detainees must be analyzed under a
Fourteenth Amendment standard of objective reasonableness, rejecting a subjective standard that
takes into account a defendant’s state of mind. Id. at 2472-73. It is unclear whether or to what
extent the holding in Kingsley may affect the deliberate indifference standard for claims
concerning an inmate’s health or safety, which the Sixth Circuit applies to both pretrial detainees
and convicted prisoners. See Morabito v. Holmes, 628 F. App’x 353, 356-58 (6th Cir. 2015)
(applying, even after the decision in Kingsley, the objective reasonableness standard to pretrial
detainee’s excessive force claims and the Eighth Amendment’s deliberate indifference standard
to denial of medical care claim). Absent further guidance, the Court will continue to apply the
deliberate indifference analysis to claims concerning a pretrial detainee’s health and safety.
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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.
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)).
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 Supreme 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. Thus,
[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. This approach comports best with the text of the Eighth
Amendment as our cases have interpreted it. The Eighth Amendment does
not outlaw cruel and unusual “conditions”; it outlaws cruel and unusual
“punishments.” An act or omission unaccompanied by knowledge of a
significant risk of harm might well be something society wishes to
discourage, and if harm does result society might well wish to assure
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compensation. The common law reflects such concerns when it imposes
tort liability on a purely objective basis. . . . But an official’s failure to
alleviate a significant risk that he should have perceived but did not, while
no cause for commendation, cannot under our cases be condemned as the
infliction of punishment.
Id. at 837-38 (emphasis added; citations omitted); see also Garretson v. City of Madison
Heights, 407 F.3d 789, 796 (6th Cir. 2005) (“If the officers failed to act in the face of an
obvious risk of which they should have known but did not, then they did not violate the
Fourteenth Amendment.”). “‘[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 Xray, or like measures, does not represent cruel or unusual punishment.” Estelle, 429 U.S.
at 107.
Dunning does not set forth any facts or circumstances suggesting that any
Defendant was deliberately indifferent to his serious medical needs.

There is no

allegation that the Defendants were aware of a substantial risk of undue suffering or
serious harm to Dunning and deliberately chose to ignore that risk and disapprove the
request for an ultrasound. (ECF No. 1 at 2.)
For these reasons, Dunning’s complaint is subject to dismissal in its entirety for
failure to state a claim on which relief can be granted.
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
10

*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.”).

In this case, with the exception of the claims against the

Defendants in their official capacities, the Court cannot conclude that any amendment to
Dunning’s claims would be futile as a matter of law.
IV. Conclusion
The Court DISMISSES Dunning’s 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, Dunning is GRANTED leave to amend his complaint with regard to the
Defendants in their individual capacities. Any amended complaint must be filed within
thirty (30) days after the date of this order.
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Dunning is advised that an amended

complaint will supersede the original pleadings and and must be complete in itself
without reference to those 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. Each claim for relief must be stated in a
separate count and must identify each defendant sued in that count. If Dunning 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.
Dunning is reminded that he must 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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