Bacchus v. Medical Staff et al

Filing 8

ORDER DISMISSING CLAIMS ORDER GRANTING LEAVE TO AMEND. Signed by Chief Judge S. Thomas Anderson on 5/15/17. (Anderson, S.)

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

ELDRA BACCHUS,

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Plaintiff,
VS.
NURSE PINKENS,
Defendant.

No. 16-2276-STA-egb

ORDER DISMISSING CLAIMS
ORDER GRANTING LEAVE TO AMEND

On April 22, 2016, Plaintiff Eldra Bacchus (“Bacchus”), who is currently an inmate at the
Shelby County Criminal Justice Center (“the jail”) in Memphis, Tennessee, filed A Pro Se
Complaint pursuant to 42 U.S.C. § 1983, accompanied by a motion to proceed in forma
pauperis. (ECF Nos. 1 & 2.)

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. 4.) The Clerk shall record the defendant as Nurse First Name
Unknown (“FNU”) Pinkens.1

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The complaint also purports to sue the Medical Staff at the jail. Service of process
cannot be made on a fictitious party. The filing of a complaint against a “John Doe” defendant
does not toll the running of the statute of limitation against that party. See Cox v. Treadway, 75
F.3d 230, 240 (6th Cir. 1996); Bufalino v. Mich. Bell Tel. Co., 404 F.2d 1023, 1028 (6th Cir.
1968). The Clerk is directed to terminate the reference to the Medical Staff defendant on the
docket.

BACKGROUND
Bacchus alleges that during the 2:00-10:00 shift he asked Officer Jones, who is not a
party to this action, to inform Defendant Pinkens that he was bitten by a spider. (Compl. at 2,
ECF No. 1.) Bacchus told Defendant Pinkens that he was light-headed, dizzy, and in severe
pain. Defendant Pinkens told Bacchus to put in a sick call and refused to call a code white,
which it seems would have allowed Bacchus to see a doctor immediately. (Id.) Bacchus
contends that he later developed a hole in his leg, his leg is swollen, and he cannot sleep on his
right side because of the pain shooting through his leg. (Id.) Bacchus alleges that Defendant
Pinkens could have gotten him outside medical treatment to help him instead of making him wait
two or three days for sick call to respond. (Id.) Bacchus

seeks

$50,000

to

$60,000

in

compensation for pain and suffering and future medical expenses.
SCREENING 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 Pro Se 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
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

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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
(quoting Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004)). Pro se litigants and prisoners

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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.”).
ANALYSIS
Bacchus filed his Pro Se Complaint on the court-supplied form for actions under 42
U.S.C. § 1983. 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
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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).
Bacchus alleges that Defendant Pinkens refused to provide him with needed medical
treatment. It is not clear from the pleadings whether Bacchus was a pretrial detainee or was
serving a sentence at the jail. In any event, for both pretrial detainees and convicted prisoners,
the Sixth Circuit analyzes 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).2 See Morabito v. Holmes, 628 F. App’x 353, 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,

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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.
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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
835.

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.
The Court holds that Bacchus fails to allege a claim against Pinkens. At the pleadings
stage, the Court assumes without deciding that the spider bite was an objectively serious medical
need at the time Bacchus requested aid from Pinkens. Accepting the allegations of the Pro Se
Complaint as true, Bacchus suffered serious complications from the spider bite. Bacchus alleges

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that instead of receiving immediate medical attention from a doctor, he had to wait two to three
days. But Bacchus does not allege that he never received any care for the wound. Where the
plaintiff has received some medical treatment, “federal courts are generally reluctant to second
guess medical judgments and to constitutionalize claims which sound in state tort law.” Burgess
v. Fischer, 735 F.3d 462, 476 (6th Cir. 2013) (quoting Westlake v. Lucas, 537 F.2d 857, 860 n.5
(6th Cir. 1976)).

Bacchus has not alleged that Defendant Pinkens actually denied him

appropriate medical treatment, either when he first approached her or after the two to three-day
wait. Bacchus only faults Pinkens for not requesting immediate treatment from a doctor. The
Court concludes that Bacchus fails to allege that Pinkens acted with deliberate indifference.
III. 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

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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 good cause to allow Bacchus an opportunity to cure the defects in his
Pro Se Complaint by amending his pleadings.
CONCLUSION
The Court DISMISSES Bacchus’s complaint as to the Defendant 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). Bacchus is granted 30 days from the service of this order to file an amended
pleading. Bacchus is advised that any amended complaint supersedes the original complaint and
must be complete in itself without reference to the prior pleadings. 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 arise from the facts
alleged in the original complaint. The amended complaint must state each claim for relief in a
separate count and identify each defendant sued in that count. If Bacchus fails to file an
amended complaint within the time specified, the Court will assess a strike pursuant to 28 U.S.C.
§ 1915(g) and enter judgment.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE
Date: May 15, 2017.

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