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Newell v. Ruth

United States District Court, E.D. Tennessee, Chattanooga Division

September 8, 2014

JIMMY J. NEWELL, Plaintiff,
v.
SHERIFF JAMES RUTH; CAPT. JON COLLINS; LT. JOLENE HICKMAN; SGT. LYNN ROE; QUALITY CONTROL CORRECTIONAL HEALTHCARE, INC. LPH BRE WOODS; DR. JERRY GURLEY; DR. BATES; LT. ANDERSON SANDERS; All Parties are Sued in Their Individual and Official Capacities; Defendants.

MEMORANDUM

HARRY S. MATTICE, Jr., District Judge.

Jimmy J. Newell ("Plaintiff"), a pro se prisoner, has filed a civil rights complaint pursuant to 42 U.S.C. § 1983 (Court Doc. 2). Plaintiff alleges he was denied adequate access to a law library; injured due to Defendants' failure to properly classify and separate dangerous offenders; sexually assaulted by an officer; denied nutritious meals; denied medical attention; and negligently administered another inmate's medication. In addition, Plaintiff claims inmates are charged high prices on commissary items; charged $2.75 each time money is put on their commissary account; have media and reading material censored; charged high prices for telephone calls; denied a fair and impartial tribunal when charged with violating rules; and "D-Seg" inmates are subjected to "conditions that have a cumulative effect of cruelty[.]" (Court Doc. 2).

Plaintiff's motion to proceed in forma pauperis will be GRANTED IN PART and DENIED IN PART (Court Doc. 1), and for the reasons discussed below, Plaintiff's complaint will be DISMISSED sua sponte for failure to state a claim upon which relief may be granted (Court File No. 2).

I. APPLICATION TO PROCEED IN FORMA PAUPERIS

It appears from the application to proceed in forma pauperis submitted by Plaintiff that he lacks sufficient financial resources at the present time to pay the required filing fee of $350.00. Plaintiff, however, is not relieved of the ultimate responsibility of paying the $350.00 filing fee. Plaintiff's motion to proceed in forma pauperis is GRANTED IN PART and DENIED IN PART (Court Doc. 1). It is GRANTED to the extent that Plaintiff can file his complaint without prepayment of the full filing fee but DENIED to the extent he will not be excused from paying the filing fee. Rather, the Court ASSESSES the entire filing fee and permits Plaintiff to pay the filing fee in installments in accordance with the Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 28 U.S.C. § 1915(b)(1); see McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997), abrogated on other grounds, Jones v. Bock, 549 U.S. 199 (2007) and LaFountain v. Henry, 716 F.3d 944, 951 (6th Cir. 2013). Plaintiff SHALL pay the full filing fee of three-hundred and fifty dollars ($350.00) pursuant to Prisoner Litigation Reform Act, Pub. L. 104-134, 110 Stat. 1321, codified in 28 U.S.C. § 1915.

Pursuant to 28 U.S.C. § 1915(b)(1)(A) and (B), the custodian of Plaintiff's inmate trust account at the institution where he now resides SHALL submit to the Clerk, United States District Court, 900 Georgia Ave., Room 309, Chattanooga, Tennessee 37402, as an initial partial payment, whichever is the greater of

(a) twenty percent (20%) of the average monthly deposits to Plaintiff's inmate trust account; or
(b) twenty percent (20%) of the average monthly balance in Plaintiff's inmate trust account for the six-month period preceding the filing of the complaint.

Thereafter, the custodian shall submit twenty percent (20%) of Plaintiff's preceding monthly income (or income credited to his trust account for the preceding month), but only when such monthly income exceeds $10.00, until the full filing fee of $350.00 as authorized under 28 U.S.C. § 1914(a) has been paid to the Clerk. 28 U.S.C. § 1915(b)(2).

The Clerk of Court will be DIRECTED to send a copy of this memorandum and order to the Sheriff of Bradley County, the Custodian of Inmate Trust Fund Accounts at the Bradley County Justice Center, the Commissioner of the Tennessee Department of Corrections, the Attorney General for the State of Tennessee, and the Court's Financial Deputy, to ensure the custodian of Plaintiff's inmate trust account complies with the portion of the Prison Litigation Reform Act relating to payment of the filing fee.

The agency having custody of Plaintiff SHALL collect the filing fee as funds become available. This order shall become a part of Plaintiff's file and follow the inmate if he is transferred to another institution. The agency having custody of Plaintiff SHALL continue to collect monthly payments from Plaintiff's prisoner account until the entire filing fee of $350.00 is paid.

Plaintiff will be ORDERED to notify this Court and Defendants or Defendants' attorney of any change of address if he is transferred to another institution, and to provide the prison officials at any new institution with a copy of this order. Failure of Plaintiff to notify this Court of an address change and/or the new prison officials of this order and outstanding debt, will result in the imposition of appropriate sanctions against Plaintiff without any additional notice or hearing by the Court.

II. SCREENING

The Court screens the complaint to determine whether it should be dismissed as frivolous, malicious, or for failure to state a claim. 28 U.S.C. § 1915(e)(2) and § 1915A. When performing this task, the Court bears in mind that the pleadings of pro se litigants must be liberally construed and "held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Nevertheless, the complaint must be sufficient "to state a claim to relief that is plausible on its face, " Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), which simply means the factual content pled by a plaintiff must permit a court "to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

III. FACTS

Plaintiff's complaint consists of a laundry list of general complaints about the Bradley County Justice Center along with a few complaints about his specific conditions of confinement. The Court liberally construes the facts stated in the complaint in the light most favorable to Plaintiff. The following facts are gleaned from Plaintiff's complaint:

1. Plaintiff's requests for access to legal books and papers were denied by Lt. Anderson Sanders.

2. Plaintiff requested to be housed away from dangerous inmates. On March 8, 2011, another inmate, James May ("May"), attempted to stab Plaintiff in the neck repeatedly.

3. Officer Stevenson[1] pinched Plaintiff on the behind "during a meal pass."

4. Plaintiff "has suffered from drastic weight loss and constant hunger due to the poor nutritional value of food served."

5. The commissary charges $1.00 for Ramen Noodles, $1.60 for a roll of toilet paper, and $2.75 each time an inmate deposits money in his commissary account.

6. The facility censors all media and reading material.

7. Telephone calls costs $1.50 for a ten minute local call and the contractor charges a $7.00 convenience fee to add funds to a prepaid account.

8. Inmates are denied a fair and impartial tribunal when they violate facility rules.

9. Inmates in "D-Seg" are subjected to cruel conditions.

a. "D-Seg" meals are served on Styrofoam trays with smaller portions.

b. Personal hygiene items are allowed only once per day during "out time."

c. Pen, paper, and legal papers can only be accessed during this "out time[]" and "[a]ccess to counsel is inhibited" (Doc. 2, p. 7).

d. Exercise is allowed during this "out time" but under restraint of handcuffs and leg shackles.

e. Telephone use is permitted during this "out time" so inmates have to decide what to do during this "out time" which is scheduled to last an hour "but seldom exceeds 20 minutes."

f. "D-Seg" prohibits reading material.

g. "D-Seg" inmates are confined for approximately 23 hours a day, receiving only one hour or less of "out time."

h. Inmates sentenced to "D-Seg" for violating institutional rules are given a specific sentence, but because they have to wait for the "Captain's Review" before being returned to the general population, they remain on "D-Seg" longer than their original "D-Seg" sentence.

10. On February 28, 2011, Plaintiff suffered "an injury requiring medical attention" but he did not receive any medical attention until later that day or the next day when he received ibuprofen. On March 1, 2011, the day after he suffered the injury, he was taken to the infirmary but denied any medication until "med pass' at 19:00 p.m." 11. On March 28, 2011, ...


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