Sparks v. Schofield et al

Filing 13

ORDER DISMISSING CLAIMS, CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH, AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE. Signed by Judge James D. Todd on 8/3/16. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
_____________________________________________________________________________
CLINT A. SPARKS,
Plaintiff,
vs.
DERRICK SCHOFIELD, ET AL.,
Defendants.

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No. 2:15-cv-2287-JDT-tmp

ORDER DISMISSING CLAIMS,
CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH, AND
NOTIFYING PLAINTIFF OF APPELLATE FILING FEE

On April 27, 2015, Plaintiff Clint A. Sparks (“Sparks”), who is confined in the Lois M.
DeBerry Special Needs Facility (“DSNF”) in Nashville, Tennessee, filed a pro se complaint
pursuant to 42 U.S.C. § 1983 and a motion for leave to proceed in forma pauperis. (ECF Nops.
1 & 2.) The complaint concerns Sparks’s previous incarceration at the West Tennessee State
Penitentiary (“WTSP”) in Henning, Tennessee. On April 29, 2015, the Court granted leave to
proceed in forma pauperis and assessed the civil filing fee pursuant to the Prison Litigation
Reform Act, 28 U.S.C. §§ 1915(a)-(b). (ECF No. 5). On July 1, 2015, the Court DISMISSED
this case for failure to prosecute after the order to proceed in forma pauperis was returned as
undeliverable and after Sparks failed to supply the court with a new address. (ECF No. 7.) On
July 10, 2014, Sparks filed a motion to alter or amend judgment. (ECF No. 9.) On July 21,
2010, the Court granted Sparks’s motion. (ECF No. 10.) The Clerk shall record the defendants
as the Tennessee Department of Correction (“TDOC”), former TDOC Commissioner Derrick

Schofield, former WTSP Warden James M. Holloway, Nurse Tim Wauthorp,1 Nurse W.C.
Robinson, Dr. Thomas Kesler and Nurse Trulena Watters.2
I. THE COMPLAINT
In April 2014, Unit 10 at WTSP was locked down due to violence. (Compl. at 4, ECF
No. 1.) For the first six days of the lockdown, inmates were not allowed to shower – Sparks
contends this was the main contributor to his infection. (Id.) On April 20, 2014, Defendant
Wauthorp answered Sparks’s April 19, 2014, sick call request and informed Sparks that he
would be placed on the list to see Defendant Kesler. (Id.) At this time Defendant Wauthorp
listed Sparks’s condition as having STAPH with drainage. (Id.) Sparks followed the sick call
with multiple requests to be taken to the clinic for treatment as well as sick call requests. (Id.)
Defendant Wauthorp’s responded that Sparks’s was on the list to see the doctor and that repeated
requests were, “’getting on people’s nerves would get him nowhere.’” (Id. at 5.) Defendant
Wauthorp brought Sparks bandages and biohazard bags for the used bandages. (Id.)
Sparks continued to sign-up for sick call and April 29, 2014, he was able to take tests to
screen for HIV and Hepatitis C.

(Id.)

Sparks used the opportunity to inform the nurse

administering the test of the STAPH infection. (Id.) The nurse told him that it was jock-itch and
gave Sparks itch cream, but no antibiotics. (Id.)
Sparks continued to sign up for sick call causing Defendant Wauthorp to tell Sparks to
stop signing-up and that he was getting on people’s nerves. (Id.) The sick call was answered by
Defendant Robinson who inspected Sparks and told Sparks that he would ensure that he was

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Sparks spells this Defendant’s name both as Wauthorp and Wauford. The Court
construes all allegations against Wauford as directed against Wauthorp.
2

The Clerk is DIRECTED to add Dr. Thomas Kesler and Nurse Trulena Watters as a
defendant pursuant to Sparks’s complaint. (Compl. at 4-5, ECF No. 1.)

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seen by the doctor to address the “extreme case” of STAPH. (Id.) Sparks alleges that defendants
Watters and Kesler reviewed the report and prescribed hydrocortisone cream and bandages, but
did not prescribe anti-biotics nor did they examine Sparks. (Id.)
In a somewhat contradictory allegation, Sparks contends that in his grievance it states that
he was seen on May 6, 8, and 10, 2014; however, he alleges that he was not seen until May 10,
2014, because at that time Officer Thorpe, who is not a party to this complaint, enabled Sparks to
file an emergency sick call request. (Id. at 6.) At that time, Sparks was brought to the clinic,
where antibiotics were administered.

(Id.)

The nurse and Officer Jones both stated that

antibiotics should have been given at the beginning of the outbreak. (Id.) Sparks states that he
heard Defendant Watters discussing that he should go to an outside hospital, but, “’we can’t send
him now. They will see that he should have been taken care of.’” (Id.) Sparks was told that he
would need multiple IV treatments as well as antibiotics in pill-form. (Id.)
Sparks seeks a preliminary and permanent injunction to provide him with satisfactory
medical treatment as well as compensatory and punitive damages. (Id. at 8.)
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)

seeks monetary relief from a defendant who is immune from such relief.

28 U.S.C. § 1915A(b); see also 28 U.S.C. § 1915(e)(2)(B).
In assessing whether the complaint in this case states a claim on which relief may be
granted, the court applies the standards under Federal Rule of Civil Procedure 12(b)(6), as

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stated in Ashcroft v. Iqbal, 556 U.S. 662, 677-79 (2009), and in Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555-57 (2007). Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). “Accepting
all well-pleaded allegations in the complaint as true, the Court ‘consider[s] the factual allegations
in [the] complaint to determine if they plausibly suggest an entitlement to relief.’” Williams v.
Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (quoting Iqbal, 556 U.S. at 681) (alteration in
original). “[P]leadings that . . . are no more than conclusions . . . are not entitled to the
assumption of truth. While legal conclusions can provide the framework of a complaint, they
must be supported by factual allegations.” Iqbal, 556 U.S. at 679; see also Twombly, 550 U.S. at
555 n.3 (“Rule 8(a)(2) still requires a ‘showing,’ rather than a blanket assertion, of entitlement to
relief. Without some factual allegation in the complaint, it is hard to see how a claimant could
satisfy the requirement of providing not only ‘fair notice’ of the nature of the claim, but also
‘grounds’ on which the claim rests.”).
“A complaint can be frivolous either factually or legally. Any complaint that is legally
frivolous would ipso facto fail to state a claim upon which relief can be granted.” Hill, 630 F.3d
at 470 (citing Neitzke v. Williams, 490 U.S. 319, 325, 328-29 (1989)).
Whether a complaint is factually frivolous under §§ 1915A(b)(1) and
1915(e)(2)(B)(i) is a separate issue from whether it fails to state a claim for
relief. Statutes allowing a complaint to be dismissed as frivolous give “judges
not only the authority to dismiss a claim based on an indisputably meritless
legal theory, but also the unusual power to pierce the veil of the complaint’s
factual allegations and dismiss those claims whose factual contentions are
clearly baseless.” Neitzke, 490 U.S. at 327, 109 S. Ct. 1827 (interpreting 28
U.S.C. § 1915). Unlike a dismissal for failure to state a claim, where a judge
must accept all factual allegations as true, Iqbal, 129 S. Ct. at 1949-50, a judge
does not have to accept “fantastic or delusional” factual allegations as true in
prisoner complaints that are reviewed for frivolousness. Neitzke, 490 U.S. at
327-28, 109 S. Ct. 1827.
Id. at 471.
“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. Wells v. Brown,
891 F.2d 591, 594 (6th Cir. 1989); see also Brown v. Matauszak, No. 09-2259, 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.”).
B.

§ 1983 Claim
Sparks filed his complaint on the court-supplied form for actions under 42 U.S.C. § 1983

which 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

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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).
1.

Twombly Claims

The complaint contains no factual allegations against defendants Schofield and
Holloway. 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.
2.

Claims against Defendants Schofield and Holloway as Supervisors

Furthermore, Schofield and Holloway cannot be held liable merely because of their
positions as TDOC Commissioner and WTSP Warden respectively. 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.

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Bellamy, 729 F.2d at 421 (citation omitted). A supervisory official who is aware of the
unconstitutional conduct of his or her subordinates, but fails to act, generally cannot be held
liable in his or 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).

The complaint contains no allegations demonstrating that Defendants Schofield

Holloway authorized, approved or acquiesced in the actions of the other named defendant.
3.

Eighth Amendment: Cruel and Unusual Punishment

For a convicted prisoner, claims for denial of adequate medical care arise under the
Eighth Amendment, which 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.” Id. 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

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that can offend ‘evolving standards of decency’ in violation of the Eighth Amendment.” Id. 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)).
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. 511
U.S. at 835-36.
“‘[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

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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). “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.
There are no claims that Defendant Robinson denied Sparks treatment, but rather the only
claim is that he created a report upon which others acted. Similarly Defendant Wauthorp, while,
only providing bandages, did not refuse Sparks treatment, but referred Sparks to a doctor to
obtain further treatment.

The allegations against Robinson and Wauthorp fail to meet the

subjective component of an Eighth Amendment claim. Sparks claims Defendants Watters and
Kesler, provided treatment; however, that treatment prescribed was insufficient to treat his
ailment. (Compl. at 5, ECF No. 1.)

At most the actions of Defendants Watters and Kessler

were negligent in their treatment, but not rising to the level of deliberate indifference.
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

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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.”).
IV. Appeal Issues
Pursuant to 28 U.S.C. §1915(a)(3), the Court must also consider whether an appeal by
Plaintiff in this case would be taken in good faith. The good faith standard is an objective one.
Coppedge v. United States, 369 U.S. 438, 445 (1962). The test for whether an appeal is taken in
good faith is whether the litigant seeks appellate review of any issue that is not frivolous. Id. 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.
V. Conclusion
The Court DISMISSES Sparks’s complaint as to the Defendants 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). Leave to Amend is DENIED because the deficiencies in Sparks’s complaint cannot
be cured. It is also 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.

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The Court must also address the assessment of the $505 appellate filing fee if Plaintiff
nevertheless appeals the dismissal of this case. A certification that an appeal is not taken in good
faith does not affect an indigent prisoner plaintiff’s ability to take advantage of the installment
procedures contained in § 1915(b). See McGore v. Wrigglesworth, 114 F.3d 601, 610-11 (6th
Cir. 1997), partially overruled on other grounds by LaFountain, 716 F.3d at 951. McGore sets
out specific procedures for implementing the PLRA, 28 U.S.C. § 1915(a)-(b). Therefore, the
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 § 1915(a)(2)
by filing an updated in forma pauperis affidavit and a current, certified copy of his inmate trust
account for the six months immediately preceding the filing of the notice of appeal.
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 when judgment is entered. Coleman v. Tollefson, 135 S. Ct. 1759, 1763-64 (2015).
The Clerk is directed to prepare a judgment.
IT IS SO ORDERED.
s/James D. Todd_____________________
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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