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Wolfe v. Alexander

United States District Court, M.D. Tennessee, Nashville Division

September 30, 2014

Tony Wolfe, Plaintiff,
Paul Alexander, et al., Defendants.


KEVIN SHARP, District Judge.

Before the Court are five motions, listed in chronological order of filing: (1) Plaintiff's Motion for Summary Judgment Against Defendant Alexander as to Liability for Violation of Plaintiff's Fourteenth Amendment Right to Refuse a Medical Diet (ECF 117); (2) Plaintiff's Second Motion for Preliminary Injunction (ECF 127); (3) Defendant Burns' Motion for Partial Summary Judgment (ECF 156); (4) Defendants Campbell, McConnell, Steele, and Woods' Motion for Summary Judgment (ECF 159); and (5) Plaintiff's Motion for Partial Summary Judgment for Violation of His Right Against Forced Medical Treatment Against Defendants Alexander, Burns, Woods, and Campbell (ECF 162).


At all times relevant to this case, Plaintiff was housed as an inmate at the DeBerry Special Needs Facility ("DeBerry"), a TDOC facility equipped to provide for prisoners with medical needs. Plaintiff suffers from end-stage renal disease and takes dialysis treatments because of his kidney failure. Defendant Paul Alexander, a medical doctor, was the Medical Director at DeBerry from prior to Plaintiff's arrival at DeBerry in 2007 until March, 2012. Defendant Roberta Burns, also a medical doctor, replaced Defendant Alexander as Medical Director from March 2012 until July 2013. In July 2013, Dr. Alexander returned to the position of Medical Director at DeBerry.

Many of the facts in this matter are not in dispute. When Plaintiff arrived at DeBerry in 2007, Defendant Alexander had already established a policy (the "Diet Tray Policy") requiring that dialysis-patient inmates receive special diet trays at mealtimes with foods designed to meet their medical needs. Under this policy, inmates were not allowed to sign an Against Medical Advice ("A.M.A.") form to refuse the diet tray.

In 2007, Defendant Alexander also implemented a policy pertaining to Plaintiff and other dialysis-patient inmates at DeBerry which prohibited them from purchasing or possessing anything from the commissary that was not on a pre-approved list of items (the "Restricted Commissary Policy"). Defendant Alexander avers that the commissary restrictions were for the purpose of meeting the medical needs of the dialysis patients. Plaintiff requested that he be allowed to sign an A.M.A. form and thus be allowed to purchase commissary items that were not on this pre-approved list. Prison staff did not allow him to do so.

On July 27, 2007, Defendant Alexander caused a staff member to issue a memo (the "Commissary Warning Memo") to all DeBerry staff members stating: "As per Dr. Alexander, If an inmate wishes to A.M.A. their special Commissary order, there will be NO Commissary AT ALL. Commissary is a privilege." (ECF 1, at 11.)

In response to the Commissary Warning Memo, Plaintiff filed additional grievances (ECF 1, at 12-22) and continued attempting to order non-approved items from the commissary by signing A.M.A. forms. On September 3, 2008, Defendant Alexander instituted a new policy (the "No Commissary Policy") stating: "Effective immediately dialysis patients are no longer allowed to have and/or purchase food commissary." (ECF 1, at 23.)

The parties disagree about Defendant Alexander's motivation for instituting the No Commissary Policy. Plaintiff alleges it was in retaliation against him and other inmates for grieving the restrictions on their access to commissary items. Dr. Alexander asserts that his actions were not retaliatory but instead were motivated by concern for the inmates' health. He asserts that the inmates were informally trading commissary food and thus consuming food not recommended for their medical conditions.

Plaintiff also requested to see a dietician to get advice about his diet. He filed grievances after his requests were denied. (ECF 1, at 24-32.) In September 2008, a DeBerry staff member provided a written response to one of his grievances, stating: "We currently do not have a dietician on staff and I cannot get one to come work here. Your dietary issues are being addressed by a doctor who is above the dietician." (Id. at 24-25.) Staff responded similarly to a grievance about the lack of access to a dietician in October 2008. (Id. at 29-30.)

On November 24, 2009, Plaintiff filed a grievance alleging that from October 2008 to the time of his grievance, he was facing ongoing harassment, retaliation, and "[d]ifferent standards/opportunities/programs" (Id. at 33-35.)

In December 2009, Plaintiff filed a complaint with the Office for Civil Rights in the U.S. Department of Justice, which the agency immediately administratively closed for lack of jurisdiction. (Id. at 36.)

On January 10 and June 21, 2011, Plaintiff filed additional grievances complaining about the Diet Tray and No Commissary policies. He also alleged that Defendant Alexander was continuing to "abuse his authority" and discriminating against dialysis patients. (Id. at 39-40, 43-44.) DeBerry staff returned the June 2011 grievance to him on a pre-printed form for grievances that are deemed "inappropriate to the grievance procedure" because he had a "diagnosis by medical professionals." (Id. at 41.)

On August 5, 2011, Plaintiff Tony Wolfe filed a pro se and in forma pauperis Complaint against numerous defendants wherein he sought relief under 42 U.S.C. § 1983 for alleged violations of his constitutional rights during his confinement at the Tennessee Department of Correction ("TDOC"). (ECF 1.) On September 7, 2011, Plaintiff filed a pro se first amended Complaint. (ECF 11.)

On December 14, 2011, Defendants Woods, Campbell, McConnell, and Steele filed a motion to dismiss (ECF 40), in response to which Plaintiff filed a pro se verified Opposition. (ECF 55.)

On July 5, 2012, the Magistrate Judge issued a Report and Recommendation ("R&R"). Because the Magistrate Judge considered factual allegations in Plaintiff's verified Opposition, he treated the motion as one for summary judgment. The Magistrate Judge considered both the original Complaint (ECF 1) and the First Amended Complaint (ECF 11), quoting from both complaints to assist him in understanding Plaintiff's claims.

On February 8, 2013, this Court considered Defendants' objections to the R&R (ECF 69), accepted and approved the R&R, and overruled the objections thereto. (ECF 102.) In approving the R&R, the Court granted the motion to dismiss as to any claims involving matters that occurred more than one year prior to the filing of the original Complaint on August 11, 2011. But to the extent that Plaintiff alleged that the violation of his right to refuse medical treatment had been ongoing and continuous, the Court held that any violation of § 1983 alleged to have occurred within the year preceding the filing of the Complaint was not barred by the statute of limitations. The Court also held that although a plaintiff pursuing a § 1983 claim must allege and prove that a defendant was personally involved in the alleged unconstitutional activity set out in the complaint, "these Defendants apparently adhered to Dr. Alexander's restrictions and, in so doing, appear to have violated written Policies of TDOC, " and thus were not entitled to judgment as a matter of law. (ECF 66, at 4.)

On March 28, 2012, Defendant Alexander filed a motion for summary judgment (ECF 57), to which Plaintiff filed a pro se response in opposition. (ECF 60.) The Magistrate Judge issued an R&R, concluding that there were disputed issues as to material fact such that Defendant Alexander was not entitled to judgment as a matter of law. (ECF 65.)

On July 19, 2012, this Court overruled Defendant Alexander's objection to the R&R (ECF 70), and accepted and approved it. (ECF 101.) In so doing, the Court ruled that claims based on acts alleged to have occurred in 2007 and 2008 were barred by the one-year statute of limitations set out in Tenn. Code Ann. § 28-3-104(a)(3). The Court also held that, to the extent Plaintiff complained that he continued to be denied the right to refuse medical treatment, any claims for instances that occurred within one year of the filing of the Complaint were not barred by the statute of limitations. The Court held that "the right to refuse medical treatment... is recognized by state law and constitutes a protectable liberty interest under the Fourteenth Amendment." (ECF 65, at 8.) The Court found that there were genuine disputes as to material facts related to Defendant Alexander's role in deciding upon and implementing the dietary restrictions and his motivation for restricting and later eliminating commissary privileges, and that a "reasonable jury could certainly conclude that these actions amount to retaliation." ( Id. )

On July 27, 2012, Plaintiff filed a Motion for Joinder (ECF 72), which the Magistrate Judge interpreted as a motion to amend the complaint to add an additional defendant. The Magistrate Judge granted this motion on December 6, 2012 (ECF 89), after he issued his R&Rs on the two motions for summary judgment. On December 31, 2012, Plaintiff filed his Second Amended Complaint. (ECF 95.) On June 13, 2013, Plaintiff filed a Third (and final) Amended Complaint with assistance of counsel, who had entered his appearance the previous day. (ECF 119.)

Plaintiff's Third Amended Complaint raises some additional legal claims that were not part of his previous complaints and therefore were not addressed in the earlier orders resolving Defendants' motions for summary judgment. This most recent complaint raises claims against Defendants Alexander and Burns for their actions as medical directors at DeBerry. He also brings claims against Defendants Julia Campbell and Clifford Woods, who were correctional officers at DeBerry and enforced the medical director's policies through disciplinary actions against Plaintiff. There is no dispute that following the issuance of the No Commissary Policy, Defendants Campbell and Woods disciplined Plaintiff for possession of disallowed commissary items. He was placed in segregation and faced other restrictions. Plaintiff also brings claims against Defendant Jewel Steele, [1] who was the Warden at DeBerry, and Defendant Joel McConnell, who was the Medical Director.


I. Summary Judgment Standard

Federal Rule of Civil Procedure 56(c) requires the Court to grant a motion for summary judgment if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." If a moving defendant shows that there is no genuine issue of material fact as to at least one essential element of the plaintiff's claim, the burden shifts to the plaintiff to provide evidence beyond the pleadings, "set[ting] forth specific facts showing that there is a genuine issue for trial." Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir. 2009); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). "In evaluating the evidence, the court must draw all inferences in the light most favorable to the [plaintiff]." Moldowan, 578 F.3d at 374.

"[T]he judge's function is not... to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). But "the mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient, " and the plaintiff's proof must be more than "merely colorable." Anderson, 477 U.S. at 249, 252. An issue of fact is "genuine" only if a reasonable jury could find for the plaintiff. Moldowan, 578 F.3d at 374 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

II. Plaintiff's Motions for Summary Judgment Against Defendant Alexander as to Liability for Violation of Plaintiff's Fourteenth Amendment Right to Refuse a Medical Diet.

The Court interprets Plaintiff's Third Amended Complaint as raising the following four § 1983 claims against Dr. Alexander: (1) Fourteenth Amendment Due Process violation of Plaintiff's right to refuse medical services by refusing the special medical diet and accessing the regular meal trays and commissary food generally available to other inmates at DeBerry; (2) First Amendment retaliation against Plaintiff for his attempts to exercise his right to refuse a medical diet by continuing the No Commissary and Diet Tray policies, continuing to fail to provide Plaintiff with medical education and counseling as to his dietary needs, and disciplining him for having unapproved commissary items; (3) Fourteenth Amendment Due Process violation for subjecting Plaintiff to punitive segregation and other deprivations because he exercised his right to refuse medical restrictions and possess commissary items; (4) Eighth and Fourteenth Amendment violations of Plaintiff's right to be free of cruel and unusual punishment through deliberate indifference to his medical needs based on Defendant's failure to assist Plaintiff with developing a diet that would appropriately meet his medical needs. (ECF 119.) Plaintiff alleges he has suffered physical and emotional damage as a result of Dr. Alexander's actions, including weight loss and "other ill effects" from consuming the special diet, from the "lack of individualized medical guidance, " and from the disciplinary actions taken against him because he was in possession of disallowed commissary items. (ECF 119, at ¶11.)

Although he raises four claims, the Court interprets both of Plaintiff's motions for summary judgment against Defendant Alexander (ECF 117, 162) as seeking judgment only on the first claim enumerated above. Although Defendant Alexander's response addresses the retaliation claim, listed as claim number two above, the Court does not interpret Plaintiff's motion to be seeking judgment on that claim. Further, the Court interprets this first claim, based on the Third Amended Complaint and the arguments raised in his various pleadings, as only raising a claim that Plaintiff's substantive due process rights were violated, not his procedural due process rights.

A. Fourteenth Amendment Substantive Due Process Claim

As to Plaintiff's substantive due process claim, the Magistrate Judge cited in his R&R. the Tennessee Health Care Decisions Act, which provides that "[a]n adult or emancipated minor may give an individual instruction, " which is defined as "an individual's direction concerning a health care decision for the individual." Tenn. Code Ann. §§ 68-11-1803(a), 68-11-1802(a)(10). The state statute also provides, "An individual is presumed to have capacity to make a health care decision." Tenn. Code Ann. § 68-11-1812(b). This Act is in the section of the Tennessee Code that regulates "health facilities and resources." Neither party addresses the applicability of these provisions to the prison context.

However, as the Magistrate also noted, TDOC policy itself specifically allows inmates to refuse "therapeutic" diets: "In accordance with Policy #113.51, inmates may refuse medical diets by signing a Refusal of Medical Services, CR-1983... Inmates with an order for a therapeutic diet tray may refuse the tray in favor of a regular diet tray." TDOC Policy #113.35.VI.D.4. TDOC policy #113.51 states that its purpose is "[t]o establish guidelines for an inmate's informed consent or refusal of health care services, " and outlines procedures to be followed "[w]hen an inmate chooses to refuse an examination, treatment, or procedure." TDOC Policy #113.51.VI.B. Further, under the heading "Forced Treatment, " TDOC policy provides, "Treatment beyond that required for maintaining the life of the inmate shall not be forced by health care staff, absent a court order." TDOC Policy 113.51.VI.D.

As a preliminary matter, the parties dispute the proper analysis for Plaintiff's substantive due process claim. Plaintiff's motion quotes Black v. Parke, 4 F.3d 442 (6th Cir. 1993), for the proposition that a state regulation confers a liberty interest protected by the Due Process Clause "when it constitutes more than a simple procedural guideline, and uses language of an unmistakably mandatory character.'" Id. at 446 (quoting Hewitt v. Helms, 459 U.S. 460, 469 (1983)).

Defendant Alexander correctly points out that the Supreme Court explicitly abandoned this "methodology" in Sandin v. Conner, 515 U.S. 472, 484 n.5 (1995). No longer does every state statute or prison regulation create a liberty interest protected by the Due Process Clause. As the Sandin Court held,

States may under certain circumstances create liberty interests which are protected by the Due Process Clause. But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force... nonetheless imposes atypical ...

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