Elmore v. Tennessee Department of Correction et al

Filing 15

ORDER DENYING PENDING MOTIONS, DISMISSING COMPLAINT AND GRANTING LEAVE TO AMEND. Signed by Judge James D. Todd on 3/17/17. (Todd, James)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
NATHANEAL JOEL ELMORE
Plaintiff,
VS.
DERRICK SCHOFIELD, ET AL.,
Defendants.

)
)
)
)
)
)
)
)
)

No. 16-1101-JDT-cgc

ORDER DENYING PENDING MOTIONS,
DISMISSING COMPLAINT AND GRANTING LEAVE TO AMEND

On May 13, 2016, Plaintiff Nathaneal Joel Elmore (“Elmore”), who is presently
incarcerated at the Trousdale Turner Correctional Center in Hartsville, Tennessee, 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.) The complaint concerns his previous incarceration at
the Hardeman County Correctional Facility (“HCCF”) in Whiteville, Tennessee. The
Court granted leave to proceed in forma pauperis and assessed the civil filing fee
pursuant to the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. §§ 1915(a)-(b). (ECF
No. 4)

The Clerk shall record the Defendants as Derrick Schofield, former

Commissioner of the Tennessee Department of Correction (“TDOC”); Damon Hininger,
President of Corrections Corporation of America (“CCA”); HCCF Warden Grady Perry;
TDOC Commissioner of Operations Jason Woodall; HCCF Assistant Warden Charlotte

Burns; Health Services Administrator Jill Miller; TDOC Medical Director Dr. Kenneth
Williams; HCCF Dr. Bernard Dietz; HCCF Nurse Practitioner Ollie Herron; HCCF
Registered Nurse Jill Sharon; HCCF Registered Nurse Ashley Harris; and HCCF
Registered Nurse Tammy Pettigrew. Defendants are sued in their individual and official
capacities.
I. The Complaint
Elmore’s complaint contains several exhibits and attachments, some of which are
unreadable due to the poor quality of the original documents. Elmore asserts claims
pursuant to 42 U.S.C. §§ 1983, 1985(3), (5) and 1986 and pursuant to Title II of the
Americans With Disabilities Act (“ADA”), 42 U.S.C. §§ 12131-12132 et seq. (ECF No.
1 at 1.) Elmore alleges that on June 30, 2015, he woke up with high-pitched ringing in
his ear which has caused deafness in his right ear, dizziness, light headedness, nausea,
vomiting, popping in his right ear, unbalanced walking and nosebleeds, as well as
anxiety, depression, and emotional stress. (Id. at 7.) Elmore contends that since June 30,
2015, he has brought these symptoms to the attention of various prison officials in order
to get proper diagnosis and treatment; however, he has been unsuccessful. (Id.)
Attached as exhibits to the complaint are twenty-one sick call submission forms
from July 6, 2015 to January 24, 2016, in which Elmore complains of his on-going
discomfort (ECF No. 1-1 at 2-3, 5, 7-9, 11-23, 25); in two of the requests, he refers to a
CT scan that was done (id. at 11, 15). Also attached are four responses from prison
officials generally stating that Elmore was seen by medical on certain dates. (Id. at 4, 6,
10, 24.) Similarly, Elmore included exhibits of sixteen inmate request forms from July
2

15, 2015 to November 24, 2015, which mostly replicate the sick call forms; however,
they also include complaints about Elmore’s mental health issues and his difficulty in
attending school while having symptoms from his ear issues. (ECF No. 1-2.)
In an attached grievance, Elmore complained that he saw Defendant Dietz on
November 4, 2015. (ECF No. 1-4 at 21-22.) Elmore alleged Dietz refused to send him to
a specialist or to the Deberry Special Needs Facility and that he prescribed Zoloft, to
which Elmore is allergic, without first discussing it with Elmore. (Id,) Additionally,
Elmore contends that if his ear problems were fixed instead of being ignored, he would
not need medication for anxiety and depression. (Id.)
Elmore also submitted an affidavit setting out a day-to-day description of his
experiences from June 30, 2015 through February 3, 2016. (ECF No. 1-7.) While the
portion of the document covering June 30 through October 20 and part of December 31
through February 3 are legible, the middle portion of the document covering October 21
through part of December 31 is unreadable.
Elmore’s complaint includes the following allegations against the named
individuals: Defendants Perry, Burns, Schofield, Hininger, and Woodall, who were made
aware of Elmore’s issues though grievances, failed to train their staff and employees
regarding their duties toward inmates generally and toward Elmore specifically (ECF No.
1 at 9); Defendant Miller failed to train her staff and employees and denied Elmore’s
emergency medical requests from June through November of 2015 (id. at 9-10, see also
ECF No 1-3); Defendant Williams failed to consult with the HCCF medical department
after being made aware of Elmore’s grievances (id. at 10); and Defendants Dietz, Herron,
3

Sharon, Harris, and Pettigrew failed to perform their duties as part of the HCCF medical
staff (id. at 10-11).
Elmore contends that as a result of Defendants’ actions, he was exposed to further
“serious nerve ending and damages to internal body organs as injuries and caused him
prolonged suffering of extreme body pains.” (Id. at 12.) Elmore alleges that at the time
of this filing, no doctor has performed a full physical, including an MRI, to diagnose his
injures. (Id.) Elmore contends that as a result of the lack of treatment, Defendant Perry
failed to protect Elmore’s rights under the Eighth Amendment, and the medical
Defendants were deliberately indifferent to his medical needs as well as failed in their
special medical duty to perform. (Id.at 14.)
Elmore seeks $1 million in compensatory and punitive damages. (Id. at 18.)
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)
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 standards under Federal Rule 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.
4

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 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.
5

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.
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.”).

6

B.

§ 1983 Claim
Elmore filed his complaint pursuant to actions under 42 U.S.C. § 1983. 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 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).
Elmore also asserts claims pursuant to 42 U.S.C. §§ 1985(3) & (5), and 1986 and
pursuant to Title II of the Americans With Disabilities Act of 1990 (“ADA”), 42 U.S.C.
§§ 12131-12132 et seq.
There is no statute designated 42 U.S.C. § 1985(5). The complaint does not assert
a valid claim under 42 U.S.C. § 1985(3), which prohibits conspiracies “for the purpose of
depriving, either directly or indirectly, any person or class of persons of the equal
protection of the laws or of equal privileges and immunities under the laws.”
[I]n order to state a cause of action under § 1985, the plaintiff must allege
that the defendants (1) conspired together, (2) for the purpose of depriving,
7

directly or indirectly, a person or class of persons of the equal protection of
the laws, (3) and committed an act in furtherance of the conspiracy, (4)
which caused injury to person or property, or a deprivation of any right or
privilege of a citizen of the United States, and (5) and that the conspiracy
was motivated by racial, or other class-based, invidiously discriminatory
animus.
Bass v. Robinson, 167 F.3d 1041, 1050 (6th Cir. 1999); see also Center for Bio-Ethical
Reform, Inc. v. City of Springboro, 477 F.3d 807, 832 (6th Cir. 2007). The complaint
alleges no facts to suggest that the conduct of any Defendant was motivated by racial
animus.
A claim under 42 U.S.C. § 1986 is entirely derivative of a valid claim pursuant to
42 U.S.C. § 1985. Bass, 167 F.3d at 1051 n.5. Because Elmore has no valid claim under
§ 1985, he also has no claim under § 1986.
Elmore also purports to sue under Title II of the ADA which 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.” Id. §
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[.]” Id. §
12131(1)(A)-(B). The Supreme Court has held that Title II of the ADA applies to
8

prisoners housed in state prisons. Pennsylvania v. Yeskey, 524 U.S. 206, 213 (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 educational and
vocational programs.” Id. at 210 (internal quotation marks omitted).
Although Plaintiff’s ADA claim suffers from several deficiencies, it is
unnecessary to address each defect in detail because 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 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);
Baldridge-El v. Gundy, No. 99-2398, 2000 WL 1721014, at *2 (6th Cir. Nov. 8, 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”).
Elmore’s claims against TDOC employees Schofield and Woodall in their official
capacities are brought against the State of Tennessee. “[A] suit against a state official in
9

his or her official capacity is not a suit against the official but rather is a suit against the
official’s office. As such, it is no different from a suit against the State itself.” Will v.
Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) (citation omitted).
Plaintiff has no valid claim against the State of Tennessee.

The Eleventh

Amendment to the United States Constitution 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 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 (1987); Pennhurst State Sch.
& Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Employees of Dep’t of Pub. Health &
Welfare v. Mo. Dep’t of Pub. Health & Welfare, 411 U.S. 279, 280 (1973); see also Va.
Office for Protection & Advocacy v. Stewart, 563 U.S. 247, 253-54 (2011) (“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.” (citations omitted)). By
its terms, the Eleventh Amendment bars all suits, regardless of the relief sought.
Pennhurst, 465 U.S. at 100-01. Tennessee has not waived its sovereign immunity. Tenn.
Code. Ann. § 20-13-102(a). Moreover, a state is not a person within the meaning of 42
U.S.C. § 1983. Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 613, 617
(2002); Will, 491 U.S. at 71.

10

Elmore’s official capacity claims against the remaining Defendants, who are CCA
officers and employees, are properly construed as claims against CCA. However, the
complaint does not allege a viable claim against CCA or the CCA Defendants in their
official capacities. “A private corporation that performs the traditional state function of
operating a prison acts under color of state law for purposes of § 1983.” 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) (corporation that provides medical care to prisoners can be sued under §
1983). The Sixth Circuit has applied the standards for assessing municipal liability to
claims against private corporations that operate prisons or provide medical care to
prisoners. Thomas, 55 F. App’x at 748-49; Street, 102 F.3d at 817-18; Johnson v. Corr.
Corp. of Am., 26 F. App’x 386, 388 (6th Cir. 2001). CCA “cannot be held liable under a
theory of respondeat superior.” Braswell v. Corr. Corp. of Am., 419 F. App’x 622, 627
(6th Cir. 2011). Instead, to prevail on a § 1983 claim against CCA, Elmore “must show
that a policy or well-settled custom of the company was the ‘moving force’ behind the
alleged deprivation” of his rights. Id. Elmore does not allege that his injuries are due to
an unconstitutional policy or custom of CCA.
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,

11

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 her subordinates, but fails to act, generally cannot be held
liable in 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). Elmore’s conclusory claims against Defendants Perry, Burns, Schofield,
Hininger, Woodall, and Miller on the basis of failure to supervise, control or train their
staff do not sufficiently allege the type of personal involvement that is necessary for
individual liability under § 1983.
Similarly, Elmore has no cause of action against these supervisory Defendants for
failing to investigate or take remedial measures in reponse to his complaints. A failure to
take corrective action in response to a grievance or complaint also 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.”). In addition,
12

the Sixth Circuit has affirmed the dismissal of a claim of supervisory liability based on
the “failure to investigate,” stating:
Young’s claim against defendants McAninch and Goff is based solely on
their alleged failure to investigate defendant Ward’s behavior towards
Young. Although Young stated that defendants McAninch and Goff had
knowledge of his allegations against defendant Ward, this is insufficient to
meet the standard that they either condoned, encouraged or knowingly
acquiesced in the misconduct.
Young v. Ward, No. 97-3043, 1998 WL 384564, at *1 (6th Cir. June 18, 1998).
The main focus of Elmore’s complaint is the alleged failure to treat his ear
condition.

“The right to adequate medical care is guaranteed to convicted federal

prisoners by the Cruel and Unusual Punishments Clause of the Eighth Amendment.”
Johnson v. Karnes, 398 F.3d 868, 873 (6th Cir. 2005). “A prisoner’s right to adequate
medical care ‘is violated when prison doctors or officials are deliberately indifferent to
the prisoner’s serious medical needs.’” Id. at 874 (quoting Comstock v. McCrary, 273
F.3d 693, 702 (6th Cir. 2001)); see also Santiago v. Ringle, 734 F.3d 585, 590 (6th Cir.
2013) (same). “Although the right to adequate medical care does not encompass the right
to be diagnosed correctly, [the Sixth Circuit] has long held that prison officials who have
been alerted to a prisoner’s serious medical needs are under an obligation to offer medical
care to such a prisoner.” Johnson, 398 F.3d at 874 (internal quotation marks and citation
omitted).
The objective component of an Eighth Amendment claim requires that a prisoner
have a serious medical need. Blackmore, 390 F.3d at 895; Brooks v. Celeste, 39 F.3d
125, 128 (6th Cir. 1994). “[A] medical need is objectively serious if it is one that has
13

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); see also Santiago, 734
F.3d at 590 (same); Johnson, 398 F.3d at 874 (same). Plaintiff alleges that he suffered
severe pain resulting from a condition in his right ear. Thus, Plaintiff has sufficiently
alleged an objectively serious medical condition.
To establish the subjective component of an Eighth Amendment violation, a
prisoner must demonstrate that the official acted with the requisite intent, that is, that he
or she had a “sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. 825, 834
(1994); Wilson v. Seiter, 501 U.S. 294, 302-03 (1991). The plaintiff must show that the
prison officials acted with “deliberate indifference” to a substantial risk that the prisoner
would suffer serious harm. Farmer, 511 U.S. at 834; Wilson, 501 U.S. at 303; Helling v.
McKinney, 509 U.S. 25, 32 (1993); Woods v. Lecureux, 110 F.3d 1215, 1222 (6th Cir.
1997); Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996); Taylor v. Mich.
Dep’t of Corr., 69 F.3d 76, 79 (6th Cir. 1995). “[D]eliberate indifference describes a
state of mind more blameworthy than negligence.” Farmer, 511 U.S. at 835. 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
14

assure 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.”).
“‘[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).

15

In his complaint, Elmore complains only generally about inadequate treatment,
which is insufficient to satisfy the subjective component of an Eighth Amendment claim.
Elmore provides more specific details in his exhibits; however, as noted supra, portions
of his exhibits are unreadable, thus making it difficult for the Court to ascertain what
level of treatment he allegedly received or what further treatment he alleges was denied.
In Elmore’s attached affidavit, he notes that he was given a CT scan was but was having
difficulty getting the results (ECF No. 1-7 at 12-16); however later in the affidavit (after
several unreadable pages) he notes that an inmate told him of another inmate with similar
conditions whose prognosis could not be determined by a CT scan (id. at 28). Elmore
also states that he has been told to apply a hot rag to his ear three times a day; however, it
is apparent that he finds this insufficient. (Id.) Without being able to interpret the full
affidavit, the Court is unable to determine the full extent of Elmore’s claims for medical
indifference. What is provided indicates that treatment was provided, although not the
treatment Elmore wanted or at the speed he desired. Such claims are properly litigated as
claims for medical malpractice, not deliberate indifference under the Eighth Amendment.
On May 26, 2016, Elmore filed a motion which, in essence, is a request for his
medical records. (ECF No. 5.) Elmore filed a similar motion on August 12, 2016, asking
the court to order the release of his medical records. (ECF No. 11.) These requests are
construed as requests for discovery. All discovery in this case must be conducted in
accordance with Rules 26 through 37 of the Federal Rules of Civil Procedure. Discovery
should be conducted between the parties, without the involvement of the Court, unless a
dispute arises that cannot be resolved without Court intervention. Therefore, Plaintiff
16

should not file his discovery requests as “motions” with the Court.1 In addition, any
discovery requests are premature at this time because the Court has not ordered that
process be issued for any Defendant. Therefore, the motions for discovery are DENIED.
On July 5, 2016, Elmore filed a motion for appointment of counsel. (ECF No. 7.)
Pursuant to 28 U.S.C. § 1915(e)(1), 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 Ҥ 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. 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
1

If a motion to compel becomes necessary, the disputed discovery requests and any
responses thereto should be filed as exhibits to the motion to compel.
17

F.2d 170, 174 (2d Cir. 1989). Because Elmore has not met the threshold showing
likelihood of success, the motion for appointment of counsel is DENIED.
On July 5, 2016, Elmore filed a motion to serve defendants. (ECF No. 8.) Where
a civil case is filed by an indigent prisoner, summonses are not issued and the defendants
are not served unless and until the case has been screened and allowed to go forward
under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b).

See Local Rule 4.1(b)(3).

Plaintiff’s motion is DENIED as premature.
On July 5, 2016 and August 12, 2016, Elmore filed motions asking about the
status of the case. (ECF Nos. 9 & 10.) Elmore received copies of the docket after each
request; additionally, this order provides the status of the case. Therefore, the motions
are MOOT.
III. Standard For 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,
18

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 Elmore’s § 1983 claims against
Defendants in their official capacities, the Court cannot conclude that any amendment to
Elmore’s complaint would be futile as a matter of law.
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,
leave to amend is GRANTED. Any amendment must be filed within thirty (30) days
after the date of this order. Elmore 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. Each claim for relief must be stated in a separate count and
must identify each defendant sued in that count. If Elmore fails to file an amended

19

complaint within the time specified, the Court will assess a strike pursuant to 28 U.S.C.
§ 1915(g) and enter judgment.
Elmore is reminded that he must promptly notify the Clerk, in writing, of any
change of address or extended absence.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

20