Ray v. Reyes et al
ORDER DENYING PENDING MOTIONS, DISMISSING COMPLAINT, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE. Signed by Judge James D. Todd on 3/20/17. (Todd, James)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
NURSE REYES, ET AL.,
ORDER DENYING PENDING MOTIONS,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE
On February 22, 2016, Plaintiff Johnathan Ray (“Ray”), who is currently an inmate at the
Trousdale Turner Correctional Center (“TTCC”) in Hartsville, Tennessee, filed a pro se
complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1.) The complaint concerns his previous
incarceration at the West Tennessee State Penitentiary in Henning, Tennessee. After Plaintiff
submitted the required documentation, the Court granted leave to proceed in forma pauperis and
assessed the civil filing fee pursuant to the Prison Litigation Reform Act (“PLRA”), 28 U.S.C.
§§ 1915(a)-(b). (ECF No. 6.) The Clerk shall record the Defendants as Nurse First Name
Unknown (“FNU”) Reyes, Director of Nurses Alisha Hurdle, and Health Administrator Natalie
I. The Complaint
Ray alleges that on November 14, 2015, Defendant Reyes was dispensing pill
medications in unit 8-A Pod at WTSP. (ECF No. 1 at 4.) Defendant Reyes arrived at Ray’s door
and asked for his name. When Ray told her his name, she gave him medication. (Id.) After Ray
took the pill, Defendant Reyes returned to the cell door and advised him that she had given him
the wrong medication. (Id.) When Ray advised Defendant Reyes that he had already taken the
pill, she told him, “sorry.” (Id.) Approximately thirty minutes later, Ray began sweating and
became dizzy, at which time Officer Tidwell, who is not a party to this complaint, called
medical. Ray was taken to the infirmary and was told he would be fine. (Id.) The next day,
November 15, 2015, Ray awoke with a rash and swelling in his face. (Id.) Officer DeBerry,
who is not a party to this complaint, called the infirmary and told them about the problem, but
they refused to see Ray. (Id.)
Ray further alleges that on December 12, 2015, Defendant Reyes was again dispensing
medication, and when she arrived at his cell, she said “Hello Mr. Ray” and gave him medication.
Ray states that he informed Defendant Reyes that the pills were different, but she
responded that the infirmary had changed companies causing the pills to look different, but that
they were the correct pills. (Id. at 4-5.) Ray took the pills, but then Defendant Reyes came back
and said she had given him the wrong medication again. (Id. at 5.) Ray told Officer Tidwell that
he was not feeling well, and Tidwell called the infirmary; Ray alleges that Defendant Hurdle and
Voss both knew what had happened to Ray, but still refused to see him after he broke out in a
rash, had swelling in his face, and became short of breath. (Id.)
Ray seeks two million dollars in compensation. (Id. at 5-6.)
Screening and Standard
The Court is required to screen prisoner complaints and to dismiss any complaint, or any
portion thereof, if the complaint—
is frivolous, malicious, or fails to state a claim upon which relief
may be granted; or
seeks monetary relief from a defendant who is immune from such
28 U.S.C. § 1915A(b); see also 28 U.S.C. § 1915(e)(2)(B).
In assessing whether the complaint in this case states a claim on which relief may be
granted, the court applies standards under Federal Rule of Civil Procedure 12(b)(6), as stated in
Ashcroft v. Iqbal, 556 U.S. 662, 677-79 (2009), and in Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555-57 (2007). Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). “Accepting all wellpleaded 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
(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
§ 1983 Claim
Ray filed his complaint pursuant to actions under 42 U.S.C. § 1983. Section 1983
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
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
Ray alleges that the Defendants provided him with the wrong medical treatment and did
not address his medical needs once that happened. For both pretrial detainees and convicted
prisoners, the Sixth Circuit has analyzed claims for failure to provide adequate medical care
under the Eighth Amendment’s deliberate indifference standard, even after the decision in
Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015).1 See Morabito v. Holmes, 628 F. App’x 353,
In Kingsley, the Supreme Court held that excessive force claims brought by pretrial
detainees must be analyzed under the Fourteenth Amendment’s standard of objective
reasonableness, rejecting a subjective standard that takes into account a defendant’s state of
mind. Id. at 2472-73.
356-58 (6th Cir. 2015) (applying the objective reasonableness standard to pretrial detainee’s
excessive force claims and deliberate indifference standard to claim for denial of medical care).
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 v. Seiter, 501 U.S. 294, 298 (1991); Williams v. Curtin, 631 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. In the context of an Eighth Amendment claim based on a lack of medical care,
the objective component requires that a prisoner have a serious medical need. Blackmore v.
Kalamazoo Cnty., 390 F.3d 890, 895 (6th Cir. 2004); 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 omitted); see also Johnson v. Karnes, 398 F.3d 868, 874 (6th Cir. 2005).
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 had a
“sufficiently culpable state of mind.” Farmer, 511 U.S. at 834; see also Wilson, 501 U.S. at 30203. 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; Dominguez v. Corr. Med. Servs., 555 F.3d 543, 550 (6th Cir. 2009); 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
A prison official cannot be found liable under the Eighth Amendment unless he
subjectively knows of an excessive risk of harm to an inmate’s health or safety and also
disregards that risk. Id. at 837. “[A]n official’s failure to alleviate a significant risk that he
should have perceived but did not” does not state a claim for deliberate indifference. Id. at 838.
While Ray alleges he was twice given the wrong medicine resulting in sweating,
dizziness, a rash, swelling, and shortness of breath, he does not allege that these conditions were
anything but minor or that they had any lasting effect. Thus, Ray has not sufficiently alleged the
type of serious medical need required to establish the objective component of an Eighth
The bare allegation that Defendants Hurdle and Voss knew what had happened is
insufficient to establish deliberate indifference, i.e., that they were aware of and disregarded a
serious medical need. As to Defendant Reyes, Ray has alleged, at most, that she was negligent.
“‘[T]hat a [medical professional] has been negligent in diagnosing or treating a medical
condition does not state a valid claim . . . under the Eighth Amendment.’” Dominguez v. Corr.
Med. Servs., 555 F.3d 543, 550 (6th Cir. 2009) (quoting Estelle v. Gamble, 429 U.S. 97, 106
(1976)). “The requirement that the official have subjectively perceived a risk of harm and then
disregarded it is meant to prevent the constitutionalization of medical malpractice claims; thus, a
plaintiff alleging deliberate indifference must show more than negligence or the misdiagnosis of
an ailment.” Comstock, 273 F.3d at 703. “When a doctor provides treatment, albeit carelessly or
inefficaciously, to a prisoner, he has not displayed a deliberate indifference to the prisoner’s
needs, but merely a degree of incompetence which does not rise to the level of a constitutional
violation.” Id.; see also Johnson, 398 F.3d at 875 (same). “‘[D]eliberate indifference to a
substantial risk of serious harm to a prisoner is the equivalent of recklessly disregarding that
risk.’” Comstock, 273 F.3d at 703 (quoting Farmer, 511 U.S. at 836).
Additionally, Ray does not have a claim against Defendants Hurdle or Voss as
supervisors. 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.
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.
For the foregoing reasons, Ray’s complaint is subject to dismissal in its entirety for
failure to state a claim on which relief may be granted.
III. Standard for Leave to Amend
The Sixth Circuit has held that a district court may allow a prisoner to amend his
complaint to avoid a sua sponte dismissal under the PLRA. LaFountain v. Harry, 716 F.3d 944,
951 (6th Cir. 2013); see also Brown v. R.I., No. 12-1403, 2013 WL 646489, at *1 (1st Cir. Feb.
22, 2013) (per curiam) (“Ordinarily, before dismissal for failure to state a claim is ordered, some
form of notice and an opportunity to cure the deficiencies in the complaint must be afforded.”).
Leave to amend is not required where a deficiency cannot be cured. Brown, 2013 WL 646489, at
*1; Gonzalez-Gonzalez v. United States, 257 F.3d 31, 37 (1st Cir. 2001) (“This does not mean, of
course, that every sua sponte dismissal entered without prior notice to the plaintiff automatically
must be reversed. If it is crystal clear that the plaintiff cannot prevail and that amending the
complaint would be futile, then a sua sponte dismissal may stand.”); Grayson v. Mayview State
Hosp., 293 F.3d 103, 114 (3d Cir. 2002) (“in forma pauperis plaintiffs who file complaints
subject to dismissal under Rule 12(b)(6) should receive leave to amend unless amendment would
be inequitable or futile”); Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001) (“We agree with
the majority view that sua sponte dismissal of a meritless complaint that cannot be salvaged by
amendment comports with due process and does not infringe the right of access to the courts.”).
In this case, the Court finds that leave to amend is not warranted.
The Court DISMISSES Ray’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. All pending motions are also DENIED.
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. Therefore, it is 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.
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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