Hamby v. Dr. Hernandez et al

Filing 61

ORDER ON PENDING MOTIONS AND SEVERING AND TRANSFERRING CERTAIN CLAIMS PURSUANT TO PURSUANT TO 28 U.S.C. § 1406(a).The claims against Defendant OToole and any possible claims against Defendant Corizon arising out of Hamby's incarceration at the DSNF are SEVERED and are hereby TRANSFERRED, pursuant to 28 U.S.C. § 1406(a), to the Nashville Division of the U.S. District Court for the Middle District of Tennessee. All of the claims arising out of events occurring at the MCCX are also SEVERED and hereby TRANSFERRED, pursuant to 28 U.S.C. § 1406(a), to the Northern Division of the U.S. District Court for the Eastern District of Tennessee, at Knoxville. The only claims remaining in this case, against Defendant Corizon for any issues arising at the WTSP, will be addressed in a separate order. Signed by Judge James D. Todd on 3/22/17. (Todd, James)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
WILLIAM DAVIDSON HAMBY, JR.,
Plaintiff,
vs.
DR. HERNANDEZ, et.al.,
Defendants.

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No. 16-2399-JDT-cgc

ORDER ON PENDING MOTIONS AND
SEVERING AND TRANSFERRING CERTAIN CLAIMS
PURSUANT TO PURSUANT TO 28 U.S.C. § 1406(a)

On May 6, 2016, Plaintiff William Davidson Hamby, Jr. (“Hamby”), an inmate
who is currently incarcerated at the Morgan County Correctional Complex (“MCCX”), in
Wartburg, Tennessee, filed a pro se complaint pursuant to 42 U.S.C. § 1983 in the U.S.
District Court for the District of Delaware.

(ECF No. 1.)

The original complaint

concerns Hamby’s previous incarcerations at the Deberry Special Needs Facility
(“DSNF”) in Nashville, Tennessee and the West Tennessee State Penitentiary (“WTSP”)
in Henning, Tennessee. On May 23, 2016, U.S. District Judge Richard G. Andrews
transferred the case to this district. (ECF No. 4.) At some point, Hamby was transferred
to the MCCX. After he filed the necessary financial documentation, this 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. 14.)

I. PENDING MOTIONS
In the original complaint, Hamby sued WTSP physician Dr. Benitez;1 DSNF
physician Dr. Molly O’Toole; WTSP Nurse Sanders; and Corizon Health, Inc.
(“Corizon”). However, on June 3, 2016, Hamby filed a motion to amend to remove
Defendants Sanders and Benitez from this action.

(ECF No. 5.)

That motion is

GRANTED; therefore, Defendants Hernandez/Benitez and Sanders are dismissed from
this action. The only claims left that may concern events occurring at the WTSP are
against Corizon.2
On June 20, 2016, Hamby filed a “Motion to Cease & Desist” which concerned
his property being held at the WTSP while he was temporarily at the Riverbend
Maximum Security Institution. (ECF No. 9.) As Hamby is no longer at either of those
institutions, the motion is DENIED as moot. On August 11, 2016, Hamby filed a motion
asking the Court to waive “court fees.” (ECF No. 21.) That motion is also DENIED.
The filing fee in this case was assessed in installments pursuant to the statutory
authorization of the PLRA, and the fact that Hamby is alleging his health and life are in
danger is not a sufficient reason to waive that assessment.
Hamby filed a motion for summary judgment on September 6, 2016, with regard
to Defendant O’Toole on the ground that she failed to answer the complaint. (ECF No.

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In the original complaint, Hamby named this Defendant as Dr. Hernandez. However, in
a motion to amend filed May 20, 2016, he sought to clarify that the Defendant’s correct name is
Benitez. (ECF No. 3.) That motion is GRANTED, and the Clerk is directed to modify the
docket to reflect that correction.

2

It is unclear from Hamby’s original complaint whether the claims against Corizon stem
from events at the WTSP, the DSNF or both. (See ECF No. 1 at 2; ECF No. 5.)

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26.) Similar motions for summary judgment alleging default were filed with regard to
specific Defendants named in various amendments (ECF Nos. 39 & 51) and with regard
to all Defendants (ECF No. 60). Those motions are DENIED. No Defendant is in
default because it has not yet been ordered that any process should be served in this
matter.
On September 15, 2016, Hamby filed a motion asking that the U.S. Marshal be
directed to serve certain Defendants with a warrant for violation of a federal order
directing Hamby’s immediate transfer. (ECF No. 29.) That motion is DENIED because
no such order for immediate transfer has been issued.
Hamby filed a motion for appointment of counsel on October 3, 2016. (ECF No.
34.) 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

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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).
Hamby has not demonstrated that the Court should exercise its discretion to
appoint counsel. Nothing in his 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 legal materials. Therefore, the motion for appointment of counsel is DENIED.
On October 5, 2016, Hamby filed a motion “for Constitutional Tort Against
Defendant’s Wages,” part of which asks for garnishment of the Defendants’ wages and
bank accounts. (ECF No. 40.)3 He filed a similar motion on October 5, 2016, seeking to
freeze or seize the Defendants’ bank accounts. (ECF No. 42.) To the extent these
motions seek immediate garnishment or seizure of the Defendants’ assets, they are
DENIED as improper. Hamby has been awarded no judgment, monetary or otherwise,
against any Defendant.
Hamby has also sought discovery in certain motions or portions of motions. (ECF
Nos. 20, 52, 59.) As no Defendant has been served, discovery in this case is premature.
Therefore, to the extent these motions seek discovery, they are DENIED.

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This motion also appears to seek amendment in order to assert a retaliation claim
against certain Defendants.

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Since his transfer to the MCCX, Hamby also has filed numerous motions
concerning his treatment at that facility.

Many of the motions seek to amend the

complaint in order to add claims and/or additional Defendants or demand additional
compensatory relief. (ECF Nos. 17, 20, 22, 24, 25, 32, 37, 40, 41, 45, 49 & 52.) Hamby
also filed an amended complaint on August 15, 2016, adding a Defendant. (ECF No. 22.)
To the extent the listed motions seek to add claims or demand additional relief against
new identified Defendants, they are GRANTED. However, to the extent the motions
seek to add claims against unknown individuals, they are DENIED.4 Accordingly, the
Clerk is directed to add the following persons as additional Defendants: Dr. Niner; Dr.
Spall; MCCX Warden Shawn Phillips; Associate Warden Gary Hamby; Counselor Ms.
Buchanan; IRC Bell; Counselor Crass (or Krass); Classification Coordinator Mahoney;
TDOC Commissioner Tony Parker; Ms. Ridenour of Internal Affairs; Neysa Taylor; Dr.
Marina Cadreche, TDOC Assistant Commissioner of Rehabilitative Services; Dr.
Kenneth Williams, TDOC Medical Director; MCCX Health Administrator Ms. Lenndy;
Head Nurse Jenner; Corporal Robinson; Correctional Officer Mason; Unit Manager
Rathers; Warden of Treatment Jeff Nance; and Unit Manager Stanton.
Many other motions or portions of motions concerning Hamby’s confinement at
the MCCX seek various types of preliminary injunctive relief, including immediate
and/or specific medical care, placement in protective custody, transfer or release, an order

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Service of process cannot be made on an unidentified party. Furthermore, the filing of a
complaint against such 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).

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directing the filing of criminal charges against specific Defendants, federal takeover of
the MCCX medical department, etc. (ECF Nos. 13, 17, 18, 19, 23, 24, 28, 30, 35, 36, 38,
42, 44, 45, 46, 47, 49, 50, 53, 54, 56, 57, & 58.) However, the Court has considered the
applicable factors for granting injunctive relief and finds that all of the motions for
injunctive relief should be and are hereby DENIED.
Finally, Hamby’s motions to ascertain the status of the case (ECF Nos. 48 & 57)
are now DENIED as moot.
In summary, the following motions are GRANTED: Docket Entry Nos. 3, 5, 25,
32, and 41.
The following motions are DENIED: Docket Entry Nos. 9, 13, 18, 19, 21, 23, 24,
26, 28, 29, 30, 34, 35, 36, 37, 38, 39, 42, 44, 46, 47, 48, 50, 51, 53, 54, 56, 57, 58, 59 and
60.
The following motions are GRANTED to the extent Hamby seeks to amend the
complaint but are DENIED in all other respects: Docket Entry Nos. 17, 20, 40, 45, 49
and 52.
II. SEVERANCE AND TRANSFER OF CLAIMS
Twenty-eight U.S.C. § 1391(b) authorizes the commencement of a civil action
only in a judicial district:
(1) where any defendant resides, if all defendants reside in the same State,
(2) a judicial district in which a substantial part of the events or omissions
giving rise to the claim occurred . . . , or (3) a judicial district in which any
defendant may be found, if there is no district in which the action may
otherwise be brought.

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With the exception of possible claims against Defendant Corizon arising out of Hamby’s
incarceration at the WTSP, see supra note 2, none of his current claims are connected to
this district. The claims against Defendant O’Toole and possibly some claims against
Defendant Corizon arise out of events occurring at the DSNF in Nashville, Tennessee.
Those claims should have been brought in the U.S. District Court for the Middle District
of Tennessee.
As indicated, most of Hamby’s current claims arise out of conduct occurring at the
MCCX and are brought against employees of that facility. Morgan County is part of the
Northern Division of the Eastern District of Tennessee.

28 U.S.C.

§ 123(a)(1).

Therefore, the claims arising out of Hamby’s incarceration at the MCCX should have
been brought in the U.S. District Court for the Eastern District of Tennessee.
Twenty-eight U.S.C. § 1406(a) states that “[t]he district court of a district in which
is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the
interest of justice, transfer such case to any district or division in which it could have
been brought.” Therefore, the claims against Defendant O’Toole and any possible claims
against Defendant Corizon arising out of Hamby’s incarceration at the DSNF are
SEVERED and are hereby TRANSFERRED, pursuant to 28 U.S.C. § 1406(a), to the
Nashville Division of the U.S. District Court for the Middle District of Tennessee.
In addition, all of the claims arising out of events occurring at the MCCX should
have been brought in the Eastern District of Tennessee. Therefore, the claims concerning
those events are also SEVERED and hereby TRANSFERRED, pursuant to 28 U.S.C.
§ 1406(a), to the Northern Division of the U.S. District Court for the Eastern District of

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Tennessee, at Knoxville.

This includes all claims against Defendants Niner, Spall,

Phillips, Gary Hamby, Buchanan, Bell, Crass (Krass), Mahoney, Parker, Ridenour,
Taylor, Cadreche, Williams, Lenndy, Jenner, Robinson, Mason, Rathers, Nance and
Stanton.
The only claims remaining in this case, against Defendant Corizon for any issues
arising at the WTSP, will be addressed in a separate order.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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