Jones v. Willie et al

Filing 8

ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS, ASSESSING $350 CIVIL FILING FEE, ADDRESSING PENDING MOTIONS, DISMISSING CASE AND GRANTING LEAVE TO AMEND 2 3 4 6 7 . Signed by Judge James D. Todd on 1/30/15. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
TOMMY EARL JONES,
Plaintiff,

VS.

DONALD WILLIE, ET AL.,
Defendants.

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No. 14-2492-JDT-dkv

ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS,
ASSESSING $350 CIVIL FILING FEE, ADDRESSING PENDING MOTIONS,
DISMISSING CASE AND GRANTING LEAVE TO AMEND

On June 23, 2014, Plaintiff Tommy Earl Jones, Tennessee Department of Correction
(“TDOC”) prisoner number 464968, an inmate at the West Tennessee State Penitentiary
(“WTSP”) in Henning, Tennessee, filed a pro se complaint pursuant to 42 U.S.C. § 1983 and
Title II of the Americans With Disabilities Act (“ADA”), 42 U.S.C. §§ 12131 et seq.,
accompanied by motions seeking the appointment of counsel and for an injunction. (ECF
Nos. 1, 2 & 3.) The Clerk shall record the Defendants as Donald Willie, a Family Nurse
Practitioner at the WTSP;1 the State of Tennessee; former WTSP Warden Jerry Lester;
TDOC Commissioner Derrick Schofield; Tennessee Governor Bill Haslam; and Lynette

1

While Plaintiff refers to Willie as a “prison doctor” (ECF No. 1 at PageID 3), he also
specifically alleges that Willie is an “FNP” (id. at PageID 5, 6).

Williams. On September 17, 2014, Plaintiff filed a motion seeking leave to proceed in forma
pauperis. (ECF No. 4.)
On November 24, 2014, Plaintiff filed an amended complaint adding Defendant
Williams, who is alleged to be a doctor employed at the WTSP. (ECF No. 5 at PageID 34.)
The amended complaint appears to be intended to supplement the original complaint. On
November 26, 2014, Plaintiff filed another motion for an injunction and another motion for
appointment of counsel. (ECF Nos. 6 & 7.)
Under Prison Litigation Reform Act (“PLRA”), 28 U.S.C. §§ 1915(a)-(b), a prisoner
bringing a civil action must pay the full filing fee required by 28 U.S.C. § 1914(a).2 The
statute merely provides the prisoner the opportunity to make a “downpayment” of a partial
filing fee and pay the remainder in installments. See McGore v. Wrigglesworth, 114 F.3d
601, 604 (6th Cir. 1997) (“[w]hen an inmate seeks pauper status, the only issue is whether
the inmate pays the entire fee at the initiation of the proceeding or over a period of time
under an installment plan. Prisoners are no longer entitled to a waiver of fees and costs.”),
partially overruled on other grounds by LaFountain v. Harry, 716 F.3d 944, 951 (6th Cir.
2013).

2

Twenty-eight U.S.C. § 1914(a) requires a civil filing fee of $350. However, pursuant to
§ 1914(b), “[t]he clerk shall collect from the parties such additional fees only as are prescribed
by the Judicial Conference of the United States.” Effective May 1, 2013, the Judicial
Conference prescribed an additional administrative fee of $50 for filing any civil case, except for
cases seeking habeas corpus and cases in which the plaintiff is granted leave to proceed in forma
pauperis under 28 U.S.C. § 1915. Because the Court is denying leave to proceed in forma
pauperis in this case, Plaintiff is liable for the entire $400 fee.
2

However, not all indigent prisoners are entitled to take advantage of the installment
payment provisions of § 1915(b). Section 1915(g) provides as follows:
In no event shall a prisoner bring a civil action or appeal a judgment in
a civil action or proceeding under this section if the prisoner has, on 3 or more
prior occasions, while incarcerated or detained in any facility, brought an
action or appeal in a court of the United States that was dismissed on the
grounds that it is frivolous, malicious, or fails to state a claim upon which
relief may be granted, unless the prisoner is under imminent danger of serious
physical injury.
Thus, “[s]uch a litigant cannot use the period payment benefits of § 1915(b). Instead, he
must make full payment of the filing fee before his action may proceed.” In re Alea, 286
F.3d 378, 380 (6th Cir. 2002). The Sixth Circuit has upheld the constitutionality of this
provision. Wilson v. Yaklich, 148 F.3d 596, 602-06 (6th Cir. 1998).
Plaintiff has filed at least three previous civil rights lawsuits that were dismissed for
failure to state a claim.3 Therefore, Plaintiff may not take advantage of the installmentpayment provisions of 28 U.S.C. § 1915(b) unless he is in imminent danger of serious
physical injury. The assessment whether a prisoner is in imminent danger is made at the time
of the filing of the complaint. See, e.g., Vandiver v. Vasbinder, 416 F. App’x 560, 561-62
(6th Cir. 2011); Rittner v. Kinder, 290 F. App’x 796, 797-98 (6th Cir. 2008); Malik v.
McGinnis, 293 F.3d 559, 562-63 (2d Cir. 2002); Abdul-Akbar v. McKelvie, 239 F.3d 307,
312-16 (3d Cir. 2001) (en banc).

3

Plaintiff previously filed Jones v. Raye, No. 3:12-cv-01230 (M.D. Tenn. Nov. 27, 2012)
(dismissed for failure to state a claim); Jones v. Sator, No. 3:12-cv-00519 (M.D. Tenn. May 30,
2012) (dismissed for failure to state a claim); and Jones v. Walls, No. 3:09-cv-1037 (M.D. Tenn.
Nov. 3, 2009) (dismissed for failure to state a claim), aff’d, No. 12-6568 (6th Cir. June 3, 2014).
3

Plaintiff’s complaint alleges several claims. First, Plaintiff alleges that, on April 9,
2014, his prescriptions for Naproxen 500 mg. and antacid tablets were discontinued. Plaintiff
suffers from Crohn’s disease, which results in severe pain.4 A gastroenterologist had
prescribed Naproxen for moderate to severe pain in Plaintiff’s back and right shoulder that
he experienced on a daily basis. (ECF No. 1 at PageID 4-5.) Plaintiff had heard from
various sources that pain medications are not prescribed to inmates in Tennessee. (Id. at
PageID 7.) Plaintiff has sued Defendant Willie for discontinuing his pain medication. (Id.)
Plaintiff also seeks a transfer to the Lois M. DeBerry Special Needs Facility
(“DSNF”) in Nashville, Tennessee, and to have his active inflammatory exudate examined
by gastroenterologists. “An exudate is a fluid emitted by an organism through pores or a
wound, a process known as exuding.” Http://en.wikipedia.org/wiki/Exudate. Medication
for Crohn’s disease must be approved by a gastroenterlogist and a pain specialist. The
WTSP staff is only equipped to store medication and to address routine issues. Defendant
Willie has allegedly failed to take Plaintiff’s medical need seriously, telling Plaintiff that his
condition is not serious enough to be housed at the DSNF. (ECF No. 1 at PageID 5-6.)
On May 8, 2014, Plaintiff asked Officer Dewalt, who is not a party to this action, to
remove Devon Walls from his cell. Walls is a cousin of the former sheriff of Dickson
County, Tennessee, and is also related to the mother of Plaintiff’s child. Plaintiff claims that
4

“Crohn’s disease is an ongoing disorder that causes inflammation of the digestive tract,
also referred to as the gastrointestinal (GI) tract. . . . The damaging inflammation resulting from
Crohn’s may cause pain and may make the intestines empty frequently, resulting in diarrhea and
other Crohn’s disease symptoms.” Http://www.crohnsandcolitisinfo.com/Crohns/What-IsCrohns-Disease.
4

Walls had been engaged in “whisky making, drug dealing, tobacco dealing, drug use[.]” (Id.
at PageID 8.) Unit Manager Ragland, who is not a party to this action, was attempting to find
a cell when an unidentified captain, who is not a party to this action, directed that both
inmates be locked in the “hole.” (Id.) However, it does not appear that Plaintiff was actually
moved to the “hole.” Instead, on May 8, 2014, inmate Mario Morgan moved into Plaintiff’s
cell. On May 26, 2014, Morgan began making whiskey. (Id.)
On or about May 20, 2014,5 Plaintiff encountered Dennis Yeager, who is responsible
for classification and who also is not a party to this action. (Id. at PageID 8-9.) Plaintiff told
Yeager that Willie had refused to recommend that he be transferred to the DSNF and had
discontinued his pain medication a month after he had filed a lawsuit. (Id. at 9.)6 Yeager
allegedly told Plaintiff there was nothing he could do for him. However, Plaintiff contends
that Yeager could have emailed other prisons to see whether any would accept Plaintiff. (Id.)
On May 22, 2014, the prison was visited by TDOC staff. A diet sheet posted in the
kitchen reflected that Plaintiff was to receive meals with no spices and three snacks per day.
On the diet line, Plaintiff is served cheese or peanut butter, both of which he describes as

5

The date in the complaint is not clearly legible.

6

On December 2, 2013, Plaintiff filed his complaint in Jones v. Cuddy, No. 13-2942JDT-tmp (W.D. Tenn.). That suit, brought against Dr. Stephen Cuddy, alleged that Cuddy had
refused to provide medication for abdominal pain, nausea and vomiting caused by Crohn’s
disease and refused to refer Plaintiff to a specialist for his active inflammatory exudate. The
case was dismissed for failure to state a claim on January 16, 2014. On appeal, the Sixth Circuit
partially affirmed the dismissal but vacated and remanded with regard to Plaintiff’s claim that he
was denied pain medication. Jones v. Cuddy, No. 14-5087 (6th Cir. Sept. 5, 2014).
5

“bad,” or sides from the regular meal with no meat. Someone at the WTSP allegedly has
altered the records to reflect that Plaintiff is being properly fed. (Id. at PageID 10.)
On May 24, 2014, a food steward refused to serve Plaintiff a bland tray. Sergeant
Murley asked Plaintiff to go to the clinic to get verification. Plaintiff keeps his verification
with him at all times. A nurse walked Plaintiff to the kitchen to explain the situation, but the
steward refused to listen. (Id. at PageID 9-10.)
On May 30, 2014, no lunch had been prepared for Plaintiff. Plaintiff was in pain and
advised Officer Cotton, who is not a party to this action, that he was leaving because he was
not feeling well and that he planned to file a grievance. The complaint alleges that, “[u]pon
leaving a tray was brought out.” (Id. at PageID 10.) The tray consisted of rice, greens, corn
and a biscuit, which he alleges is not a proper diet for someone with a serious medical
condition. (Id. at PageID 11.)
After receiving his tray, Plaintiff went to the medication window to speak to the nurse
on call. Plaintiff told the nurse that, if his name had been submitted to the dietician in
Nashville, he would be receiving his medically required bland diet. The nurse allegedly
replied that the kitchen had been notified of Plaintiff’s dietary restrictions and that the clinic
has no control over the kitchen. Plaintiff told the nurse that he was in pain and needed to be
transferred to Nashville. The nurse said that Plaintiff had refused medical, but he has been
constantly asking to be transferred to Nashville. The nurse said that Plaintiff had been
refusing to come to the clinic, and Plaintiff replied that, the last time he visited the clinic,
Defendant Willie “stated I have no terminal illness, by stating there was nothing wrong with
6

me.” (Id.) The nurse, who is not a party to this action, allegedly ignored Plaintiff’s statement
that he was in pain and told him to leave the clinic. A female officer, who is not a party to
this action, walked over and told Plaintiff to leave the clinic. Plaintiff replied that he was just
trying to get fed and that he was in pain. (Id.)
A yard officer arrived, and Plaintiff told him that the kitchen staff knew he was
coming to the clinic and showed him a copy of his therapeutic diet order. The officer said
the nurses had told him that Plaintiff was refusing medical treatment. Plaintiff replied that
he had not been served lunch and was in pain. The officer, who is not a party to this action,
told Plaintiff to get away from the clinic. The yard officer claimed that the nurses had told
him that Plaintiff’s therapeutic diet order would not be renewed and that it was really there
to mislead people. (Id. at PageID 11-12.)
The complaint also alleges:
Since April 2014 the water in cell 4.B.18 has been defected [sic]. One
situation the water runs for over two weeks. Two theres only hot water for
over two weeks. Three theres only cold water for over two weeks. For this
day 6.3.2014 prison locked down and officer Fussell refused to bring bag of
ice when told cell has no running cold water[.]
(Id.)
Plaintiff seeks a transfer to the DSNF and “relief under Americans with Disability
Act.” (Id. at 7.)
In his amended complaint, Plaintiff alleges that, during a chronic care visit in 2014,
he advised Defendant Williams that he needed medication to treat the pain associated with
his Crohn’s disease. Williams allegedly denied treatment. (ECF No. 5 at PageID 36.) The
7

amended complaint also alleges that Plaintiff wrote to Defendants Schofield and Haslam
about his need for pain medication. (Id. at PageID 36-37, 37-38.) Plaintiff informed
Defendants that his mucosal surface is entirely ulcerated, causing inflammatory exudate.
Defendant Willie said that Plaintiff was not telling the truth and did not refer him to be seen
by a specialist. (Id. at PageID 38.) Defendant Williams allegedly failed to act on Plaintiff’s
request to be seen by a specialist. (Id. at PageID 39.)
The amended complaint also alleges that, as of early November 2014, Plaintiff’s
fingernail began to turn green. He has “always” had a rash on his right hand due to his
Crohn’s disease. Defendant Willie allegedly advised Plaintiff to clip his fingernail as it
grows. (Id.)
Because of his Crohn’s disease, Plaintiff requires a bland diet. A bland diet is similar
to the regular diet but the food is served bland. Plaintiff asked Defendants Willie and
Williams to submit his name to a dietician located in Nashville, but they refused. (Id. at
PageID 41.)
The amended complaint seeks money damages under the ADA. (Id. at PageID 42-43.)
Plaintiff also seeks “urgently proper medical treatment and housing at Lois Deberry Special
Needs.” (Id. at PageID 43.)
Because Plaintiff’s complaint alleges a danger of serious harm due to a failure to
properly treat a chronic condition, he has arguably satisfied the “imminent danger” exception
to § 1915(g). Vandiver v. Prison Health Servs., Inc., 727 F.3d 580, 582-83 (6th Cir. 2013)
(“[A]lleging a danger of serious physical injury as a result of being presently denied adequate
8

medical treatment for a chronic illness satisfies the imminent-danger exception.”). As
Plaintiff has properly completed and submitted an in forma pauperis affidavit and a copy of
his inmate trust fund account statement, the Court GRANTS leave to proceed in forma
pauperis in accordance with the terms of the PLRA.
Pursuant to 28 U.S.C. § 1915(b)(1), it is ORDERED that Plaintiff cooperate fully
with prison officials in carrying out this order. It is further ORDERED that the trust account
officer at Plaintiff’s prison shall calculate a partial initial filing fee equal to twenty percent
(20%) of the greater of the average balance in or deposits to Plaintiff’s trust account for the
six months immediately preceding the completion of the affidavit. When the account
contains any funds, the trust account officer shall collect them and pay them directly to the
Clerk of Court. If the funds in Plaintiff’s account are insufficient to pay the full amount of
the initial partial filing fee, the trust account officer is instructed to withdraw all of the funds
in Plaintiff’s account and forward them to the Clerk of Court. On each occasion that funds
are subsequently credited to Plaintiff’s account, the trust account officer shall immediately
withdraw those funds and forward them to the Clerk of Court, until the initial partial filing
fee is paid in full.
It is further ORDERED that, after the initial partial filing fee is fully paid, the trust
account officer shall withdraw from Plaintiff’s account and pay to the Clerk of this Court
monthly payments equal to twenty percent (20%) of all deposits credited to Plaintiff’s

9

account during the preceding month, but only when the amount in the account exceeds $10,
until the entire $350 filing fee is paid.7
Each time that the trust account officer makes a payment to the Court as required by
this order, he shall print a copy of the prisoner’s account statement showing all activity in the
account since the last payment under this order and file it with the Clerk along with the
payment. All payments and account statements shall be sent to:
Clerk, United States District Court, Western District of Tennessee,
167 N. Main, Room 242, Memphis, TN 38103
and shall clearly identify Plaintiff’s name and the case number on the first page of this order.
If Plaintiff is transferred to a different prison or released, he is ORDERED to notify
the Court immediately of his change of address. If still confined, he shall provide the
officials at the new prison with a copy of this order. If Plaintiff fails to abide by these or any
other requirements of this order, the Court may impose appropriate sanctions, up to and
including the dismissal of this action, without any additional notice or hearing by the Court.
The Clerk shall mail a copy of this order to the prison official in charge of inmate trust
accounts at Plaintiff’s prison. The Clerk is further ORDERED to forward a copy of this
order to the warden of Plaintiff’s prison to ensure that the custodian of Plaintiff’s inmate trust
account complies with that portion of the PLRA pertaining to the payment of filing fees.

7

The assessment for this case is in addition to the assessments made in the other cases
filed by Plaintiff. In other words, Plaintiff is not entitled to pay his filing fees one at a time. See
Goodrich v. Tyree, No. 08-CV-13664, 2010 WL 2572773 (E.D. Mich. June 23, 2010).
10

Plaintiff has filed two motions seeking the appointment of counsel in this matter.
(ECF Nos. 2 & 7.) Pursuant to 28 U.S.C. § 1915(e)(1), “[t]he court may request an attorney
to represent any person unable to afford counsel.” However, “[t]he appointment of counsel
in a civil proceeding is not a constitutional right.” Lanier v. Bryant, 332 F.3d 999, 1006 (6th
Cir. 2003); see also Shepherd v. Wellman, 313 F.3d 963, 970 (6th Cir. 2002) (“[T]he
plaintiffs were not entitled to have counsel appointed because this is a civil lawsuit.”);
Lavado v. Keohane, 992 F.2d 601, 605-06 (6th Cir. 1993) (no constitutional right to counsel
in a civil case); Farmer v. Haas, 990 F.2d 319, 323 (7th Cir. 1993) (“There is no
constitutional or . . . statutory right to counsel in federal civil cases . . . .”). Appointment of
counsel is “a privilege that is justified only by exceptional circumstances.” Lavado, 992 F.2d
at 606 (internal quotation marks and citation omitted). “In determining whether ‘exceptional
circumstances’ exist, courts have examined the type of case and the abilities of the plaintiff
to represent himself. This generally involves a determination of the complexity of the factual
and legal issues involved.” Id. at 606 (internal quotation marks and citations omitted).
Appointment of counsel is not appropriate when a pro se litigant’s claims are frivolous or
when his chances of success are extremely slim. Id. (citing Mars v. Hanberry, 752 F.2d 254,
256 (6th Cir. 1985)); see also Cleary v. Mukasey, 307 F. App’x 963, 965 (6th Cir. 2009)
(same).8

8

These factors are important, because § 1915(e)(1) “does not authorize the federal courts
to make coercive appointments of counsel” to represent indigent civil litigants. Mallard v.
United States Dist. Ct., 490 U.S. 296, 310 (1989).
11

Plaintiff has not satisfied his burden of demonstrating that the Court should exercise
its discretion to appoint counsel in this case. Nothing in Plaintiff’s motion serves to
distinguish this case from the many other cases filed by pro se prisoners who are not trained
attorneys and who have limited access to the law library. The motions for appointment of
counsel are DENIED.
Plaintiff has also filed two motions for injunctive relief in which he asks to be
transferred to the DSNF. (ECF Nos. 3 & 6.) Even if Plaintiff were to establish that
Defendants were deliberately indifferent to his serious medical needs, it does not follow that
the appropriate remedy would be a transfer to the DSNF. See, e.g., Olim v. Wakinekona, 461
U.S. 238, 245 (1983) (“Just as an inmate has no justifiable expectation that he will be
incarcerated in any particular prison within a State, he has no justifiable expectation that he
will be incarcerated in any particular State.”); Branham v. Grinage, No. 88-1611, 1989 WL
11070, at *1 (6th Cir. Feb. 10, 1989); Christian v. Mich. Dep’t of Corr.—Health Servs., No.
12-12936, 2013 WL 607783, at *3 n.3 (E.D. Mich. Jan. 28, 2013) (report and
recommendation), adopted, 2013 WL 607779 (E.D. Mich. Feb. 19, 2013); Skinner v.
Unknown Grandson, No. 05-70556, 2006 WL 1997392, at *12 (E.D. Mich. July 14, 2006).
If the Court were to find an Eighth Amendment violation, the appropriate remedy would be
an order directing Defendants to provide appropriate treatment for Plaintiff’s conditions. It
would be up to Defendants to decide whether that treatment should be provided at Plaintiff’s
current prison, the DSNF, or any other facility. The motions for a preliminary injunction are
DENIED.
12

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 (2009), and in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (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). “[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.”).

13

“A complaint can be frivolous either factually or legally.” Hill, 630 F.3d at 470
(citing Neitzke v. Williams, 490 U.S. 319, 325 (1989)). “Any complaint that is legally
frivolous would ipso facto fail to state a claim upon which relief can be granted.” Id. (citing
Neitzke, 490 U.S. at 328-29).
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. Unlike a dismissal for failure to state a claim, where a judge
must accept all factual allegations as true, a judge does not have to accept
“fantastic or delusional” factual allegations as true in prisoner complaints that
are reviewed for frivolousness.
Id. at 471 (citations and internal quotation marks omitted).
“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, however,
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, 415 F. App’x 608,
612, 613 (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))); 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.

14

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.”).
To state a claim under 42 U.S.C. § 1983,9 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).
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

9

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.
15

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, 131 S. Ct. 1632, 1638 (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. § 2013-102(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 v. Mich.
Dep’t of State Police, 491 U.S. 58, 71 (1989). The Court DISMISSES Plaintiff’s § 1983
claim against the State of Tennessee pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii)-(iii) and
1915A(b)(1)-(2).
The original complaint contains no factual allegations against Defendants Lester,
Schofield, and Haslam. The amended complaint also contains no factual allegations against

16

Defendant Lester.10 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.
The amended complaint alleges that Defendant Schofield “was informed by letter that
prison doctors were and have been denying prisoner proper medical care, no progress was
made.” (ECF No. 8 at PageID 39; see also id. at PageID 36.) Defendant Haslam “was
informed by letter that prison doctors were and have been denying prisoner proper medical
care, no progress was made.” (Id. at PageID 39; see also id. at PageID 36-37.) Defendants
Schofield and Haslam allegedly “refused to take notification concerning terminal illness due
to Crohn’s Disease serious[,] as well as other complaints.” (Id. at PageID 42.)
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, 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.

10

In fact, Defendant Lester is listed as a named party only in the original complaint.
(ECF No. 1 at PageID 3.) He is not listed either in the caption or in the “Parties” section of the
amended complaint. (ECF No. 5 at PageID 32, 34.)
17

Bellamy, 729 F.2d at 421 (citation omitted). A supervisory official who is aware of the
unconstitutional conduct of his subordinates, but fails to act, generally cannot be held liable
in his 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).
A failure to take corrective action in response to an inmate grievance or complaint does not
supply the necessary personal involvement for § 1983 liability. See George v. Smith, 507
F.3d at 609-10 (“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.”). The complaint does not allege
that Defendants Schofield and Haslam had any personal involvement in the events at issue.
Defendants Schofield and Haslam cannot be held liable under § 1983 because of their
respective positions as TDOC Commissioner and Governor, even if they did not respond to
his Plaintiff’s letters.11
Several of the incidents about which Plaintiff complains are not linked to any named
Defendant. Specifically, no named Defendant is alleged to have been responsible for housing
Plaintiff with Devon Walls; for threatening to have Plaintiff and Walls sent to the “hole”; for

11

These parties also cannot be sued for prospective injunctive relief, see Ex parte Young,
209 U.S. 123, 160 (1908), because they are not alleged to have personal responsibility for the
provision of medical care to prisoners at the WTSP and because a transfer to the DSNF is not an
appropriate remedy for the alleged constitutional violations.
18

refusing to serve Plaintiff a bland food tray on May 24, 2014; for altering records to reflect
that Plaintiff was being properly fed; for failing to provide Plaintiff a proper lunch on May
30, 2014; for threatening to change Plaintiff’s therapeutic diet order and directing him to
leave the clinic on May 30, 2014; and for failing to provide both hot and cold water to
Plaintiff’s cell for part of April 2014. The classification coordinator, Dennis Yeager, who
allegedly failed to email other prisons to ask whether they would accept Plaintiff, is not a
party to this action. Neither is Officer Fussell, who refused to bring Plaintiff a bag of ice.
“The right to adequate medical care is guaranteed to convicted federal prisoners by
the Cruel and Unusual Punishments Clause of the Eighth Amendment, and is made
applicable to convicted state prisoners and to pretrial detainees (both federal and state) by the
Due Process Clause of the Fourteenth 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 v. Kalamazoo Cnty., 390 F.3d 890, 895 (6th Cir. 2004);
19

Brooks v. Celeste, 39 F.3d 125, 128 (6th Cir. 1994). “[A] medical need is objectively serious
if it is one that has been diagnosed by a physician as mandating treatment or one that is so
obvious that even a lay person would readily recognize the necessity for a doctor’s
attention.” Blackmore, 390 F.3d at 897 (internal quotation marks and citations omitted); see
also Santiago, 734 F.3d at 590 (same); Johnson, 398 F.3d at 874 (same). Plaintiff has been
diagnosed with Crohn’s Disease, which is a serious medical condition. See, e.g., Hendricks
v. DesMarais, No. 2:11-cv-40, 2013 WL 5408258, at *5 (S.D. Ohio Sept. 25, 2013); Holder
v. Lawson, No. 3:10CV-P512-H, 2010 WL 3277131, at *2 (W.D. Ky. Aug. 17, 2010).
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.
20

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 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.”).
This is a case in which a prisoner received some medical treatment but he contends
that a more appropriate treatment was withheld from him. “‘[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.;

21

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). The failure to approve a
consultation with a specialist does not establish deliberate indifference. “A medical decision
not to order an X-ray, or like measures, does not represent cruel or unusual punishment. At
most it is medical malpractice, and as such the proper forum is the state court.” Estelle, 429
U.S. at 107.
That Defendant Willie declined to recommend that Plaintiff be transferred to the
DSNF or to refer Plaintiff to a gastroenterologist for treatment of his Crohn’s disease and
active inflammatory exudate (which might be a complication of Crohn’s disease) does not
establish deliberate indifference. At most, Defendant Willie may have been negligent. See
Slip op. at 3, Jones v. Cuddy, No. 14-5087 (6th Cir. Sept. 5, 2014).
Plaintiff’s allegations that Defendant Willie discontinued his pain medication are not
entirely consistent with his claims in case number 13-2942 that inmates in Tennessee are
never prescribed pain medication. In this case, Plaintiff had apparently been prescribed
Naproxen for his pain, and Defendant Willie allegedly decided to discontinue that
treatment.12 Even if it were assumed that the complaint adequately alleges an Eighth
Amendment claim against Defendant Willie for discontinuing his Naproxen, process will not

12

In his most recent motion for an injunction, Plaintiff stated that he had not been
prescribed “oxicotine” or Lortab. (ECF No. 6 at 2.) However, the complaint does not allege the
pain medication that Plaintiff had been taking was inadequate.
22

issue on Plaintiff’s § 1983 claim at this time because the only relief sought under § 1983 is
a transfer to the DSNF, which is not an appropriate remedy for the reasons previously
stated.13
Plaintiff 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.” 42 U.S.C.
§ 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 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

13

While the amended complaint recites that Plaintiff’s claims are brought under 42
U.S.C. § 1983 (ECF No. 5 at PageID 32), the amendment does not actually seek relief under that
statute. Instead, the amended complaint seeks relief only under the ADA. (ECF No. 5 at PageID
42-43.) Therefore, it is unnecessary to address whether Plaintiff might have a claim against
Defendant Williams, who is named only in the amended complaint, under § 1983.
23

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”).
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
at 951; see also Brown v. Rhode Island, 511 F. App’x 4, 5 (1st Cir. Feb. 22, 2013) (per
curiam) (“Ordinarily, before dismissal for failure to state a claim is ordered, some form of
24

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, 511 F. App’x
at 5; 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.”).
With the sole exception of Plaintiff’s claim against the State of Tennessee under 42
U.S.C. § 1983, the Court cannot conclude that any amendment to Plaintiff’s complaint would
be futile as a matter of law. Therefore, leave to amend is GRANTED. Any amended
complaint must be filed within twenty-eight days after the date of this order.
Plaintiff is advised that an amended complaint supersedes the original complaint and
must be complete in itself without reference to the prior pleading. 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
25

arise from the facts alleged in the original complaint. Plaintiff may add additional defendants
provided that the claims against the new parties arise from the acts and omissions 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 Plaintiff fails to file an amended complaint within the
time specified, the Court will assess yet another strike pursuant to 28 U.S.C. § 1915(g) and
enter judgment.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

26