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Dixon v. Hall

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

October 24, 2014

CEDRICK DIXON # 511099, Plaintiff,
v.
DARON HALL, ET AL., Defendants.

REPORT AND RECOMMENDATION

JOE B. BROWN, Magistrate Judge.

To: The Honorable Todd Campbell, United States District Judge.

For the reasons stated below, the Magistrate Judge RECOMMENDS that: 1) the motions to dismiss filed by Sheriff Daron Hall and defendant Patricia Young (Docs. 25, 55) be GRANTED; 2) this case be DISMISSED as to defendant Dr. Roberta Burns for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1); 3) plaintiff's motion to amend (Doc. 134) be DENIED; 4) all other pending motions be TERMINATED AS MOOT; 5) dismissal of this case count as a "STRIKE" under 28 U.S.C. § 1915(g); 6) acceptance and adoption of this Report and Recommendation (R&R) constitute the FINAL JUDGMENT in this action; 7) any appeal NOT BE CERTIFIED as taken in good faith under 28 U.S.C. § 1915(a)(3).

I. INTRODUCTION and BACKGROUND

Plaintiff was arrested on March 17, 2014. (Doc. 1, ¶ IV, p. 3 of 5)[1] Plaintiff claims that the arresting officer "pulled [his] right shoulder out of place." (Doc. 1, ¶ IV, p. 3 of 5)

Plaintiff asserts that he reported his injury to the nurse when he was transported to the Criminal Justice Center (CJC) in Nashville, and that the nurse provided him with "pain pills" and a "medical form" to complete. (Doc. 1, ¶ IV, p. 3 of 5) The nurse allegedly told plaintiff that it would take forty-eight hours to x-ray his shoulder. (Doc. 1, ¶ IV, p. 3 of 5) Plaintiff avers that, when he did not hear from medical within forty-eight hours, he waited seven days then filed a grievance "because no one x-rayed [his] shoulder so they could put it back in place." (Doc. 1, ¶ IV, p. 3 of 5)

Plaintiff asserts that he filed another "medical form" on March 29, 2014, but was informed by Nurse S. Darren that x-rays and surgical procedures were not performed at CJC. (Doc. 1, ¶ IV, p. 3 of 5) Plaintiff claims that he spoke with his case manager on the matter, but was informed his grievance was not on file and that he needed to file another one. (Doc. 1, ¶ IV, pp. 3-4 of 5)

Plaintiff claims that he filed another grievance on April 19, 2014. (Doc. 1, ¶ IV, p. 4 of 5) Plaintiff avers that he also filed another "medical form" that same day because he still had not heard from medical, and because the pain pills he had been given made him "dizzy and vomit." (Doc. 1, ¶ IV, p. 4 of 5)

Plaintiff maintains that no one responded until May 7, 2014, when he was given "more pain pills" and his arm was put in a sling. (Doc. 1, ¶ IV, p. 4 of 5) According to plaintiff, Nurse Darren told him on May 7th that Dr. Burns did not want to see him "because no one [at CJC] c[ould] put [his] right shoulder in place, and [that] it w[ould] cost to[o] much money to send [him] to the hospital." (Doc. 1, ¶ IV, 4 of 5) Plaintiff asserts that he filed another grievance that same day. (Doc. 1, ¶ IV, p. 4 of 5)

Plaintiff alleged at the time he filed his complaint that he had not yet received a response to his grievances, that CJC medical still will not see him even though he "constantly" submits "medical forms, " and that he had filed four grievances since March 29th. (Doc. 1, ¶ 1V, p. 4 of 5) Plaintiff also claims that his "brother and girlfriend contacted the Sheriff, " but "the Sheriff" told them that "no one got his medical forms or grievances." (Doc. 1, ¶ IV, p. 4 of 5) Finally, plaintiff alleges that he was told by Nurse Darren that medical was not going to see him, and to get his shoulder fixed when he was released. (Doc. 1, ¶ IV, p. 5 of 5)

Plaintiff is suing Sheriff Hall, defendant Young of Correct Care Solutions (CCS), and Dr. Burns because, in plaintiff's words, "they are the Bosses." (Doc. 1, ¶ III.c, p. 3 of 5) Plaintiff seeks injunctive relief and money damages. (Doc. 1, ¶ V, p. 5 of 5)

II. PROCEDURAL HISTORY

Plaintiff, proceeding pro se and in forma pauperis, is a pre-trial detainee at CJC. He filed this action on May 22, 2014[2] under 42 U.S.C. § 1983 alleging violations of his rights under the Fourteenth Amendment.[3] (Doc. 1)

The District Judge entered an order on May 27, 2014 directing that process issue, and for the custodian of plaintiff's inmate trust fund account comply with the Prison Litigation Reform Act (PLRA) regarding the payment of filing fees.[4] (Doc. 3) The District Judge also referred this action to the Magistrate Judge with the following instructions:

[E]nter a scheduling order for the management of the case, to dispose or recommend disposition of any pretrial motions under 28 U.S.C. §§ 636(b)(1)(A) and (B), and... conduct further proceedings, if necessary, under Rule 72(b), Fed.R.Civ.P., and the Local Rules of Court. The Magistrate Judge may recommend the dismissal of any claim for the reasons set forth in 28 U.S.C. § 1915(e)(2).

(Doc. 3) Process was served on Sheriff Hall on June 13, 2014, and both defendant Young and Dr. Burns on June 17, 2014. (Docs. 12, 14, 16)

Defendant Young filed a motion to dismiss on July 15, 2014 for failure to state a claim. (Docs. 25-26) Defendant Young argues that plaintiff failed to "allege[] facts as to how she was involved or responsible for the alleged violation of [plaintiff's] rights." (Doc. 26, ¶ II, p. 2) Plaintiff filed a response on July 24, 2014 and again on August 7, 2014. (Docs. 36, 68)

On July 29, 2014, the Magistrate Judge entered an order notifying plaintiff that he had until August 15, 2014 to amend his complaint should he wish to do so. (Doc. 47, p. 1) Plaintiff filed a motion to amend on October 23, 2014. (Doc. 134)

Dr. Burns answered the complaint on July 30, 2014. (Doc. 46) In her answer, Dr. Burns argues, inter alia, that "Plaintiff's complaint fails to state a claim on which relief can be granted." (Doc. 46, ¶ ...


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