Hamby v. Dr. Hernandez et al

Filing 63

ORDER 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 3/23/17. (Todd, James)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
WILLIAM DAVIDSON HAMBY, JR.,
Plaintiff,
vs.
DR. BENITEZ, ET AL.,
Defendants.

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No. 16-2399-JDT-cgc

ORDER DISMISSING COMPLAINT,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE

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.) After Hamby filed the necessary
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. 14.)

In the original complaint, Hamby sued WTSP physician Dr. Benitez;1 DSNF
physician Dr. Molly O’Toole; WTSP Nurse Sanders; Corizon Health, Inc. (“Corizon”);2
and the unknown Chief Medical Officer at the WTSP. (ECF No. 1 at 2.) However, on
June 3, 2016, Hamby filed a motion to amend to remove Defendants Sanders and Benitez
from this action. (ECF No. 5.) On March 21, 2017, the Court granted that motion. (ECF
No. 61 at 2.) The March 21 order also addressed Hamby’s numerous other pending
motions (id. at 2-6), severed the claims concerning his incarceration at the DSNF and
transferred them to the U.S. District Court for the Middle District of Tennessee (id. at 67), and also severed the claims concerning Hamby’s incarceration at the MCCX,
transferring them to the U.S. District Court for the Eastern District of Tennessee (id. at 78). Thus, the only remaining claims in this case are any claims against Defendant
Corizon Health arising from Hamby’s incarceration at the WTSP.3
I. The Complaint
In the original complaint, Hamby alleged that after he was transferred from the
DSNF to the WTSP his health deteriorated because Defendant Corizon’s employees

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This Defendant was originally identified as Dr. Hernandez (ECF No. 1 at 2), but Hamby
moved to correct the Defendant’s name to Dr. Benitez (ECF No. 3). The Court has granted that
motion. (ECF No. 61 at 2 n.1.)

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In the prior order, the Court noted that it is not entirely clear whether Hamby’s claims
against Corizon concern events at the WTSP, the DSNF or both. For purposes of this order the
Court will presume that Hamby is asserting claims against Corizon stemming from his time at
the WTSP.

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With regard to any claims against the “unknown” Chief Medical Officer, 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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acted with racial bias and neglect in the provision of medical services, resulting in him
receiving no doctor’s help and no medication. (ECF No. 1 at 1.) Specifically, Hamby
alleges he was denied treatment for hepatitis C and coccidioidomycosis (“Valley Fever”)
and was denied medications for neuropathy and high cholesterol. (Id. at 2.) Hamby
further alleges that he suffers from stage 3 hepatitis C, neuropathy, and has had multiple
documented injuries and surgeries. (Id.) He contends that the lack of medical care at the
WTSP caused him pain and suffering which constituted cruel and unusual punishment,
yet white inmates were assisted. (Id. at 3.)
Hamby seeks both monetary compensation and injunctive relief. (Id.)
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 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, 55557 (2007), are applied. 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.

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“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. 092259, 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
Hamby filed his complaint pursuant to 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,

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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.
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)
The complaint does not allege a viable claim against Corizon.

“A private

corporation that performs the traditional state function of operating a prison acts under
color of state law for purposes of § 1983.” Thomas v. Coble, 55 F. App’x 748, 748 (6th
Cir. 2003) (citing Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996)); see
also Parsons v. Caruso, 491 F. App’x 597, 609 (6th Cir. 2012) (corporation that provides
medical care to prisoners can be sued under § 1983). The Sixth Circuit has applied the
standards for assessing municipal liability to claims against private corporations that
operate prisons or provide medical care to prisoners. Thomas, 55 F. App’x at 748-49;
Street, 102 F.3d at 817-18; Johnson v. Corr. Corp. of Am., 26 F. App’x 386, 388 (6th Cir.
2001). Corizon “cannot be held liable under a theory of respondeat superior.” Braswell
v. Corr. Corp. of Am., 419 F. App’x 622, 627 (6th Cir. 2011). Instead, to prevail on a
§ 1983 claim against Corizon, Plaintiff “must show that a policy or well-settled custom of
the company was the ‘moving force’ behind the alleged deprivation” of his rights. Id.

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The complaint does not adequately allege that Plaintiff suffered any injury because of an
unconstitutional policy or custom of Corizon.
Although Hamby’s original complaint alleges that he was denied access to legal
assistance or a law library (id. at 3), he does not allege that Corizon, which is only a
provider of medical services, was in any way involved in that denial. Therefore, Hamby
also has no First Amendment claim against Corizon.
For the foregoing reasons, Hamby’s claims against Corizon stemming from his
incarceration at the WTSP are subject to dismissal in their entirety for failure to state a
claim.
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

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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 concludes that leave to amend is not
warranted.
IV. Conclusion
The Court DISMISSES Hamby’s complaint 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.
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.

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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 at 610-11
(6th Cir. 1997). 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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