Spencer v. Oldham et al
Filing
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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 7/22/13. (Todd, James)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
LORENZO SPENCER, SR.,
Plaintiff,
VS.
WILLIAM P. OLDHAM, et al.,
Defendants.
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No. 12-2519-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 June 28, 2012, Plaintiff Lorenzo Spencer, Sr., booking number 11112190, an
inmate at the Shelby County Criminal Justice Complex (“Jail”) 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 July 2, 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 Sheriff William P. Oldham,
Dr. Washington, Dental Staff, Officer Clark, and Officer Anderson.
Plaintiff alleges that he was at the Jail gym on May 24, 2011, when his finger was hit
by a ball and dislocated. Plaintiff sought medical treatment and alleges that Defendant Dr.
Washington had the nurse put a splint on the finger. The attachments to the complaint reveal
that Plaintiff was sent to an outside medical facility for an x-ray and an orthopedic consult
was ordered. Plaintiff alleges that he has not received his eye drops during his Jail
confinement. Plaintiff also alleges that he requested dental care for a boil in his mouth and
to have a tooth pulled. The attachments to the complaint reveal that the dental department
was behind in providing care to inmates, Plaintiff’s boil burst before he was seen, and
Plaintiff’s tooth was pulled.
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 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
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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],
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
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(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.
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.”).
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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
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 Sheriff Oldham because of his supervisory capacity over
the Jail. He alleges no personal involvement of Defendant Oldham in his original injury or
subsequent treatment. All claims against Defendant Oldham must be dismissed.
The complaint contains no factual allegations against Defendants Officer Clark and
Officer Anderson. When a complaint fails to allege any action by a defendant, it necessarily
fails to “state a claim for relief that is plausible on its face.” Twombly, 550 U.S. at 570.
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The Eighth Amendment to the United States Constitution prohibits cruel and unusual
punishment. See generally Wilson v. Seiter, 501 U.S. 294 (1991). An Eighth Amendment
claim consists of both objective and subjective components. Farmer v. Brennan, 511 U.S.
825, 834 (1994); Hudson v. McMillian, 503 U.S. 1, 8 (1992); Wilson, 501 U.S. at 298;
Williams v. Curtin, 633 F.3d at 383; Mingus v. Butler, 591 F.3d 474, 479-80 (6th Cir. 2010).
The objective component requires that the deprivation be “sufficiently serious.” Farmer, 511
U.S. at 834; Hudson, 503 U.S. at 8; Wilson, 501 U.S. at 298.
Under Estelle v. Gamble, 429 U.S. 97, 104 (1976), “deliberate indifference to serious
medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain,’...
proscribed by the Eighth Amendment.” However, not “every claim by a prisoner that he has
not received adequate medical treatment states a violation of the Eighth Amendment.”
Estelle, 429 U.S. at 105. “In order to state a cognizable claim, a prisoner must allege acts or
omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.
It is only such indifference that can offend ‘evolving standards of decency’ in violation of
the Eighth Amendment.” Id., 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
treatment or one that is so obvious that even a lay person would easily recognize the
necessity for a doctor's attention." Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir.
1980)(quoting Laaman v. Helgemoe, 437 F. Supp. 269, 311 (D.N.H. 1977)).
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To make out a claim of an Eighth Amendment Estelle violation, a prisoner must plead
facts showing that “prison authorities have denied reasonable requests for medical treatment
in the face of an obvious need for such attention where the inmate is thereby exposed to
undue suffering or the threat of tangible residual injury." Westlake v. Lucas, 537 F.2d 857,
860 (6th Cir. 1976). The Court clarified the meaning of deliberate indifference in Farmer v.
Brennan, as the reckless disregard of a substantial risk of serious harm; mere negligence will
not suffice. Id. 511 U.S. at 835-36. 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 Defendants Dr. Washington and the unnamed dental staff were negligent
in treating and evaluating Plaintiff, that error would amount at most to nursing 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 or dental 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 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
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___, ___, 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
the claims asserted are entirely lacking in merit.
Therefore, the Court DISMISSES the complaint pursuant to 28 U.S.C. §§
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
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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
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”
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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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