Metcalf v. Shelby County Justice Center et al

Filing 11

ORDER OF DISMISSAL; ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH AND ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL. Signed by Judge James D. Todd on 7/8/2013. (Todd, James)

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

CLARK METCALF,
Plaintiff,
VS.
SHELBY COUNTY, et al.,
Defendants.

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No. 12-2091-JDT-tmp

ORDER OF DISMISSAL
ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
AND
ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

On February 6, 2012, Plaintiff Clark Metcalf, who was at that time an inmate at the
Shelby County Jail (“SCJ”) in Memphis, Tennessee, filed a pro se complaint pursuant to 42
U.S.C. § l983, accompanied by a motion seeking leave to proceed in forma pauperis. (ECF
Nos. 1 & 2.) The Court issued an order on February 7, 2012, that granted leave to proceed
in forma pauperis and assessed the civil filing fee. (ECF No. 3.)
The Clerk shall record the defendants as Shelby County,1 Correct Care Solutions, and
Dr. Robert C. Stetzel, Jr.
Plaintiff was previously incarcerated at the SCJ. He alleges that he arrived at the SCJ

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Plaintiff named the SCJ as a Defendant. Governmental departments,
divisions, and buildings are not suable entities. Therefore, the Court
construes those claims against Shelby County. See generally Hafer v. Melo, 502
U. S. 21 (1991).

with an abscessed and extremely decayed tooth and sought immediate treatment. Plaintiff
alleges that he was seen by the dental department the next day and received pain medication
and antibiotics. Plaintiff was advised that he would see the dentist before his pain medication
ran out. After seven weeks, Plaintiff alerted a nurse to his continuing problems and was
advised that his original paperwork must have been misplaced. Plaintiff received additional
pain medication free of charge and another appointment date.
Plaintiff received treatment by Defendant Stetzel who informed Plaintiff that the tooth
would have to be split in half during extraction because of the extreme decay. Plaintiff
describes the extraction as a lengthy and difficult process. Plaintiff alleges that he could feel
a piece of tooth remaining after the numbness wore off. Plaintiff contends that he requested
additional dental care but was not seen until an officer sent him to the dental department due
to Plaintiff’s complaints of pain. Plaintiff alleges that Dr. Stetzel advised Plaintiff that he
was feeling bone that was supposed to be there but that Stetzel also offered to remove it.
Plaintiff alleges that Defendant Stetzel’s response did not make any sense. Because of
continuing pain and problems, Plaintiff returned to the nurse, who removed the remaining
piece of tooth.
Plaintiff sues the defendants for negligence, medical/dental malpractice, hiring of an
incompetent dentist, and pain and suffering.
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
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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 standards under Fed. R. Civ. P. 12(b)(6), as stated in Ashcroft v. Iqbal, 556 U.S.
662, 677-79, 129 S. Ct. 1937, 1949-50, 173 L. Ed. 2d 868 (2009), and in Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555-57, 127 S. Ct. 1955, 1964-66, 167 L. Ed. 2d 929 (2007), are
applied. Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). “Accepting all 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, 129 S. Ct. at 1951)
(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, 129 S. Ct.
at 1950; see also Twombly, 550 U.S. at 555 n.3, 127 S. Ct. at 1964-65 n.3 (“Rule 8(a)(2) still
requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief. Without some
factual allegation in the complaint, it is hard to see how a claimant could satisfy the
requirement of providing not only ‘fair notice’ of the nature of the claim, but also ‘grounds’
on which the claim rests.”).
“A complaint can be frivolous either factually or legally. See Neitzke [v. Williams],

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490 U.S. [319,] 325, 109 S. Ct. at 1827 [(1989)]. Any complaint that is legally frivolous
would ipso facto fail to state a claim upon which relief can be granted. See id. at 328-29, 109
S. Ct. 1827.” Hill, 630 F.3d at 470.
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, 92
S. Ct. 594, 30 L. Ed. 2d 652 (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, 92 S. Ct. at 596 (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, 104 S. Ct. 434, 78 L. Ed. 2d
3366 (1983); McDonald v. Hall, 610 F.2d 16 (1st Cir.1979) (same); Jarrell v.
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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).
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. Secretary 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.”).
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).
Section 1983 will not support a claim based upon a theory of respondeat superior
alone. Polk County v. Dodson, 454 U.S. 312, 325 (1981); Bellamy v. Bradley, 729 F.2d 416,
421 (6th Cir. 1984). A plaintiff must allege that a defendant official was personally involved
in the unconstitutional activity of a subordinate in order to state a claim against such a

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defendant. Dunn v. State of Tennessee, 697 F.2d 121, 128 (6th Cir. 1982). A failure to
supervise, control or train an individual is not actionable “unless the supervisor ‘either
encouraged the specific incident of misconduct or in some other way directly participated in
it.’” Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). “At a minimum a plaintiff must
show that the official least implicitly authorized, approved, or knowingly acquiesced in the
unconstitutional conduct of the offending officers.” Hays v. Jefferson Co., Ky, 668 F.2d 869,
874 (6th Cir. 1982).
It is clear that Plaintiff sues Defendant Correct Care Solutions because of its
supervisory capacity over Defendant Stetzel. He alleges no personal involvement of Correct
Care Solutions in the dental treatment. All claims against Defendant Correct Care Solutions
must be dismissed.
Plaintiff has sued Shelby County. When a § 1983 claim is made against a
municipality, 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 Plaintiff’s claim against Shelby County.
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 responsible for a
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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 County 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. Campbell,
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Civil Action 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. County 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 which caused
injury to Plaintiff. Instead, it appears that Plaintiff is suing Shelby County because he was
confined in a county institution and the County employed persons who allegedly violated his
rights.
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.
To satisfy the objective component of an Eighth Amendment claim, a prisoner must
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show that he “is incarcerated under conditions posing a substantial risk of serious harm,”
Farmer, 511 U.S. at 834; see also Miller v. Calhoun Cnty., 408 F.3d 803, 812 (6th Cir. 2005),
or that he has been deprived of the “minimal civilized measure of life’s necessities,” Wilson,
501 U.S. at 298 (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)); see also Hadix v.
Johnson, 367 F.3d 513, 525 (6th Cir. 2004).
The subjective component of an Eighth Amendment claim 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; Wilson, 501 U.S. at 297, 302-03. The official's intent must rise at
least to the level of deliberate indifference. Farmer, 511 U.S. at 834; Wilson, 501 U. S. at
302-03.
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., 429 U.S. 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
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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 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. Consequently, allegations of medical malpractice or
negligent diagnosis and treatment fail to state an Eighth Amendment claim of cruel and
unusual punishment. See Estelle, 429 U.S. at 106.
When a prisoner has received some medical attention, but disputes the adequacy of
that treatment, the federal courts are reluctant to second-guess the medical judgments of
prison officials and constitutionalize claims which sound in state tort law. Westlake, 537 F.2d
at 860 n. 5. Even if Defendant Stetzel was negligent in treating and evaluating Plaintiff, that
error would amount at most to dental malpractice. “[A] complaint that a physician [or nurse]
has been negligent in treating or failing to treat a medical condition does not state a valid
claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not
become a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S.
at 105-06. The allegations are insufficient to establish the subjective component of an Eighth
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Amendment violation.
The Sixth Circuit recently held that a district court may allow a prisoner to amend his
complaint to avoid a sua sponte dismissal under the PLRA. LaFountain v. Harry, ___ F.3d
___, ___, 2013 WL 2221569, at *5 (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.”). The deficiencies in Plaintiff’s complaint cannot be cured by amendment because
Plaintiff suffered no injury during his incarceration and the claims asserted are entirely
lacking in merit.
Therefore, the Court DISMISSES the complaint pursuant to 28 U.S.C. §§
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1915(e)(2)(B)(ii) and 1915A. Judgment shall be entered for all Defendants.
The Court must also consider whether Plaintiff should be allowed to appeal this
decision in forma pauperis, should he seek to do so. The United States Court of Appeals for
the Sixth Circuit requires that all district courts in the circuit determine, in all cases where
the appellant seeks to proceed in forma pauperis, whether the appeal would be frivolous.
Twenty-eight U.S.C. § 1915(a)(3) provides that “[a]n appeal may not be taken in forma
pauperis if the trial court certifies in writing that it is not taken in good faith.”
The good faith standard is an objective one. Coppedge v. United States, 369 U.S. 438,
445 (1962). The test under 28 U.S.C. § 1915(a) for whether an appeal is taken in good faith
is whether the litigant seeks appellate review of any non-frivolous issue. Id. at 445-46. It
would be inconsistent for a district court to determine that a complaint should be dismissed
prior to service on the defendants, but has sufficient merit to support an appeal in forma
pauperis. See Williams v. Kullman, 722 F.2d 1048, 1050 n.1 (2d Cir. 1983). The same
considerations that lead the Court to dismiss this case for failure to state a claim also compel
the conclusion that an appeal would not be taken in good faith. It is therefore CERTIFIED,
pursuant to 28 U.S.C. § 1915(a)(3), that any appeal in this matter by Plaintiff would not be
taken in good faith and Plaintiff may not proceed on appeal in forma pauperis.
The final matter to be addressed is the assessment of a filing fee if Plaintiff appeals
the dismissal of this case. In McGore v. Wrigglesworth, 114 F.3d 601, 610-11 (6th Cir.
1997), the Sixth Circuit set out specific procedures for implementing the PLRA. Therefore,
Plaintiff is instructed that, if he wishes to take advantage of the installment procedures for
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paying the appellate filing fee, he must comply with the procedures set out in McGore and
28 U.S.C. § 1915(b).
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”
shall take effect, without further action by the Court, upon expiration of the time for filing
a notice of appeal, the dismissal of any appeal, or the affirmation of the district court’s ruling
on appeal, whichever is later.
IT IS SO ORDERED.

s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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