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Whitson v. Chisholm

United States District Court, Western District of Tennessee, Western Division

January 22, 2015

CYRUS RANDY WHITSON, Plaintiff,
v.
DONNA CHISHOLM, ET AL., Defendants.

ORDER PARTIALLY DISMISSING COMPLAINT AND DIRECTING THAT PROCESS BE ISSUED AND SERVED ON THE REMAINING DEFENDANTS

JAMES D. TODD UNITED STATES DISTRICT JUDGE

On September 19, 2014, Plaintiff Cyrus Randy Whitson, Tennessee Department of Correction (“TDOC”) prisoner number 237655, an inmate at the West Tennessee State Penitentiary (“WTSP”) in Henning, Tennessee, filed a pro se complaint pursuant to 42 U.S.C. § 1983, accompanied by a copy of his trust fund account statement. (ECF Nos. 1 & 2.) After Plaintiff submitted the required documents (ECF No. 5), the Court issued an order on October 16, 2014, granting leave to proceed in forma pauperis and assessing the civil filing fee pursuant to 28 U.S.C. §§ 1915(a)-(b). (ECF No. 6.) The Clerk shall record the Defendants as Donna Chisholm, a Nurse Practitioner; former WTSP Warden Jerry Lester; Deputy Warden Stanley Dickerson; Inmate Relations Coordinator William Pugh; TDOC Commissioner Derrick Schofield; and Dr. Larry Anthony.

The complaint alleges that, at 8:20 a.m. on October 30, 2013, Plaintiff was assaulted by another inmate. Plaintiff contends that he “was shoved down and [his] leg poped [sic].” (ECF No. 1 at 4.) A Code 1 was called and staff members responded. Plaintiff’s leg had become badly swollen in the five minutes after the injury had been sustained. Plaintiff told members of the TDOC Security Team and Defendant Pugh that he had a broken leg. Pugh allegedly stated that the leg could not be broken because Plaintiff was walking on it. Pugh required Plaintiff to walk one hundred to two hundred yards, while pushing a buggy containing his property, to the medical department. (Id.)

At the medical unit, Plaintiff “begged and pleaed [sic] for them to x-ray [his] leg and give [him] pain medication.” (Id.) The nurse refused to order an x-ray. Instead, she took pictures of Plaintiff’s leg, wrapped it, gave him a pair of crutches and sent him to a holding cell. (Id.) That nurse apparently was Defendant Chisholm. (Id.) Plaintiff spoke to Defendant Dickerson, as well as to Captain Mooney, who is not a party to this action, and also to unidentified Internal Affairs officers, begging and pleading for them to do something because he had a broken leg. The officers responded that there was nothing they could do because Medical had said the leg was not broken. (Id.)

Plaintiff was taken to the “hole” for fighting. He was not given any pain medication. He was forced to walk “over a mile or 2 miles, ” presumably to get to the “hole.” (Id.) On October 31, 2013, a nurse came to Plaintiff’s cell. She gave him some pain medication, at his request, and said that his leg appeared to be broken. The nurse asked Plaintiff why the staff had not ordered x-rays. (Id.)

Plaintiff was released from the “hole” on November 5, 2013. He was “forced to walk and push a cart with [his] property on it for over a mile or 2 miles on a broken leg.” (Id.) Plaintiff signed up for sick call and an x-ray was performed, which showed that Plaintiff’s right leg had a broken fibula. Defendant Anthony told Plaintiff that he would require surgery to put pins into his leg. (Id.)

Plaintiff was sent to Nashville to see Dr. Baker, who is not a party to this action, for surgery. For reasons that are not explained, Plaintiff says that he “refused surgery for now.” (Id.) Baker told Plaintiff that, if he did not have the surgery, he would always have trouble with his leg. Plaintiff suffers from pains in his leg. (Id.)

Plaintiff seeks money damages and a reduction of his sentence from life imprisonment to ten years. (Id. at 5.)

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, 555-57 (2007), are applied. Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). “Accepting 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). “[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.” Hill, 630 F.3d at 470 (citing Neitzke v. Williams, 490 U.S. 319, 325 (1989)). “Any complaint that is legally frivolous would ipso facto fail to state a claim upon which ...


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