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Walcott v. Upchurch

May 4, 2007

LARRY WALCOTT, PLAINTIFF,
v.
HOWARD L. UPCHURCH; RICK FINGER; BETH A. CASSADY; MIKE NEAL; MELBA HUFFMAN; DEFENDANTS.



The opinion of the court was delivered by: Harry S. Mattice, Jr. United States District Judge

Mattice/Carter

MEMORANDUM

Larry Walcott ("plaintiff"), a pro se prisoner, has filed a civil rights complaint pursuant to 42 U.S.C. § 1983 (Court File No. 1). Plaintiff brings suit against Rhea County Jail personnel, Dr. Beth A. Cassady, Mike Neal, and Melba Huffman; a Veteran's Administration Hospital employee, Rick Finger; and plaintiff's private attorney, Howard L. Upchurch ("Attorney Upchurch"). Plaintiff claims Attorney Upchurch ignored his requests to assist him in obtaining medical care while he was incarcerated in the Rhea County Jail.*fn1 Plaintiff claims the other defendants deliberately denied him adequate medical treatment and inflicted cruel and unusual punishment upon him. Plaintiff seeks compensatory damages in the total amount of $13,000,000.00. As explained below, no service shall issue and this complaint will be dismissed as frivolous because it is time-barred (Court File No. 1).

I. Standard of Review

Pro se pleadings filed in civil rights cases are liberally construed and held to a less stringent standard than formal pleadings drafted by lawyers. McNeil v. United States, 508 U.S. 106, 113 (1993); Boag v. MacDougall, 454 U.S. 364, 365 (1982); Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996); Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991). However, pro se status does not exempt the plaintiff from the requirement that he comply with relevant rules of procedural and substantive law. Hulsey v. State of Texas, 929 F.2d 168, 171 (5th Cir. 1991); Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981). Pro se plaintiffs must comply with Rule 8 of the Federal Rules of Civil Procedure which provides that a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief. . . ." LRL Properties v. Portage Metro Housing Authority, 55 F.3d 1097, 1104 (6th Cir. 1995). Although the standard of review is liberal, it does require more than the bare assertion of legal conclusions. Lillard v. Shelby County Bd. Of Educ., 76 F.3d 716, 726 (6th Cir. 1996) (standard of review for dismissing a complaint pursuant to FED. R. CIV. P. 12(b)(6)-failure to state a claim upon which relief may be granted); LRL Properties, 55 F.3d at 1103-04; Allard v. Weitzman (In re DeLorean Motor Co.), 991 F.2d 1236, 1240 (6th Cir. 1993); Hartfield v. East Grand Rapids Public Schools, 960 F. Supp. 1259, 1268 (W.D. Mich. 1997).

The Court screens the complaint pursuant to 28 U.S.C. § 1915A and § 1915(e). Furthermore, 28 U.S.C. §§ 1915A and 1915(e)(2) provides that the Court must dismiss a case at any time if the Court determines that it is frivolous or fails to state a claim upon which relief can be granted.

A. Screening Pursuant to 28 U.S.C. §§ 1915A and 1915(e)

When screening a prisoner complaint, a district court must examine both § 1915(e)(2) and § 1915A. If the civil action seeks redress from a governmental entity, officer, or employee, the district court must dismiss the complaint, or any portion of the complaint, which (a) is frivolous, malicious, or fails to state a claim upon which relief may be granted, or (b) seeks monetary relief from a defendant who is immune from monetary relief. 28 U.S.C. § 1915A. Should the complaint contain any allegations that do not fall within § 1915A, the district court must then examine the complaint under § 1915(e)(2). The requirements of §1915(e)(2) overlap the criteria of § 1915A. Section 1915A is restricted to prisoners who sue government entities, officers, or employees. In contrast, § 1915(e)(2) is restricted neither to actions brought by prisoners, nor to cases involving government defendants. Further, § 1915A is applicable at the initial stage of the litigation, while § 1915(e)(2) is applicable throughout the entire litigation process. A case that may not initially appear to meet §1915(e)(2) may be dismissed at a future date should it become apparent that the case satisfies this section. Thus, in prisoner cases, the district court must first examine a complaint under § 1915A and then review the complaint under § 1915(e)(2) before the case can proceed in due course. A district court is required to screen all civil cases brought by prisoners, regardless of whether the inmate paid the full filing fee, is a pauper, is pro se, or is represented by counsel as the statute does not differentiate between various civil actions brought by prisoners. The dismissal of a complaint under §1915(e)(2) or § 1915A does not negate a prisoner's obligation to pay the filing fee in accordance with § 1915(b)(1)- (2). See In re Tyler, 110 F.3d at 529-30. We make it explicit: a court's responsibility under the Prison Litigation Act is to first examine the financial status of a prisoner and make the assessment of fees. After the fees have been assessed, the merits of a complaint or appeal may be reviewed. Our mandate, however, does not prevent a district court from making the fee assessment and conducting the screening process in the same opinion or order.

McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997).

II. Facts

Plaintiff avers he was arrested and transported to the Rhea County Jail on April 5, 2004, where he remained until an unspecified date in May of 2004, when he was transferred to Brushy Mountain State Penitentiary in Petros, Tennessee. Plaintiff claims defendants Melba Huffmen, Mike Neal, and Dr. Beth Cassady, personnel at the Rhea County Jail, were aware of his medical needs and the medication he was prescribed at that time but failed to provide him with medical care. Plaintiff was eventually taken to the Veteran's Administration Clinic in Chattanooga, Tennessee and Ernest Finger, Head Administrator, allegedly refused to treat him.

Forty-four days later Plaintiff was transported to Dr. Cassady's private office but once again, Dr. Cassady allegedly refused to treat him. The next day plaintiff was transferred to the State Prison at Brushy Mountain in Petros, Tennessee. Currently, he resides at the State Prison in Pikeville, Tennessee.

III. Analysis - 42 U.S.C. § 1983 Claim

To state a viable claim under 42 U.S.C. ยง 1983, a plaintiff must allege he was deprived of a right, privilege, or immunity secured by the Constitution or laws of the United States by a person acting under color of law, without due process of law. Flagg Brothers Inc. v. Brooks, 436 U.S. 149, 155 (1978); Chatman v. Slagle, 107 F.3d 380, 384 (6th Cir. 1997); Brock v. McWherter, 94 F.3d 242, 244 (6th Cir. 1996); O'Brien v. City of Grand Rapids, 23 F.3d 990, 995 (6th Cir. 1994); Rhodes v. McDannel, 945 F.2d 117, 119 (6th Cir. 1991) cert. denied, 502 U.S. 1032 (1992). Assuming ...


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