United States District Court, W.D. Tennessee, Western Division
ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS, ASSESSING $350 CIVIL FILING FEE, ADDRESSING PENDING MOTIONS, DISMISSING CASE AND GRANTING LEAVE TO AMEND
JAMES D. TODD, District Judge.
On June 23, 2014, Plaintiff Tommy Earl Jones, Tennessee Department of Correction ("TDOC") prisoner number 464968, an inmate at the West Tennessee State Penitentiary ("WTSP") in Henning, Tennessee, filed a pro se complaint pursuant to 42 U.S.C. § 1983 and Title II of the Americans With Disabilities Act ("ADA"), 42 U.S.C. §§ 12131 et seq., accompanied by motions seeking the appointment of counsel and for an injunction. (ECF Nos. 1, 2 & 3.) The Clerk shall record the Defendants as Donald Willie, a Family Nurse Practitioner at the WTSP; the State of Tennessee; former WTSP Warden Jerry Lester; TDOC Commissioner Derrick Schofield; Tennessee Governor Bill Haslam; and Lynette Williams. On September 17, 2014, Plaintiff filed a motion seeking leave to proceed in forma pauperis. (ECF No. 4.)
On November 24, 2014, Plaintiff filed an amended complaint adding Defendant Williams, who is alleged to be a doctor employed at the WTSP. (ECF No. 5 at PageID 34.) The amended complaint appears to be intended to supplement the original complaint. On November 26, 2014, Plaintiff filed another motion for an injunction and another motion for appointment of counsel. (ECF Nos. 6 & 7.)
Under Prison Litigation Reform Act ("PLRA"), 28 U.S.C. §§ 1915(a)-(b), a prisoner bringing a civil action must pay the full filing fee required by 28 U.S.C. § 1914(a). The statute merely provides the prisoner the opportunity to make a "downpayment" of a partial filing fee and pay the remainder in installments. See McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997) ("[w]hen an inmate seeks pauper status, the only issue is whether the inmate pays the entire fee at the initiation of the proceeding or over a period of time under an installment plan. Prisoners are no longer entitled to a waiver of fees and costs."), partially overruled on other grounds by LaFountain v. Harry, 716 F.3d 944, 951 (6th Cir. 2013).
However, not all indigent prisoners are entitled to take advantage of the installment payment provisions of § 1915(b). Section 1915(g) provides as follows:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
Thus, "[s]uch a litigant cannot use the period payment benefits of § 1915(b). Instead, he must make full payment of the filing fee before his action may proceed." In re Alea, 286 F.3d 378, 380 (6th Cir. 2002). The Sixth Circuit has upheld the constitutionality of this provision. Wilson v. Yaklich, 148 F.3d 596, 602-06 (6th Cir. 1998).
Plaintiff has filed at least three previous civil rights lawsuits that were dismissed for failure to state a claim. Therefore, Plaintiff may not take advantage of the installment-payment provisions of 28 U.S.C. § 1915(b) unless he is in imminent danger of serious physical injury. The assessment whether a prisoner is in imminent danger is made at the time of the filing of the complaint. See, e.g., Vandiver v. Vasbinder, 416 F.Appx. 560, 561-62 (6th Cir. 2011); Rittner v. Kinder, 290 F.Appx. 796, 797-98 (6th Cir. 2008); Malik v. McGinnis, 293 F.3d 559, 562-63 (2d Cir. 2002); Abdul-Akbar v. McKelvie, 239 F.3d 307, 312-16 (3d Cir. 2001) (en banc).
Plaintiff's complaint alleges several claims. First, Plaintiff alleges that, on April 9, 2014, his prescriptions for Naproxen 500 mg. and antacid tablets were discontinued. Plaintiff suffers from Crohn's disease, which results in severe pain. A gastroenterologist had prescribed Naproxen for moderate to severe pain in Plaintiff's back and right shoulder that he experienced on a daily basis. (ECF No. 1 at PageID 4-5.) Plaintiff had heard from various sources that pain medications are not prescribed to inmates in Tennessee. ( Id. at PageID 7.) Plaintiff has sued Defendant Willie for discontinuing his pain medication. ( Id. )
Plaintiff also seeks a transfer to the Lois M. DeBerry Special Needs Facility ("DSNF") in Nashville, Tennessee, and to have his active inflammatory exudate examined by gastroenterologists. "An exudate is a fluid emitted by an organism through pores or a wound, a process known as exuding." Http://en.wikipedia.org/wiki/Exudate. Medication for Crohn's disease must be approved by a gastroenterlogist and a pain specialist. The WTSP staff is only equipped to store medication and to address routine issues. Defendant Willie has allegedly failed to take Plaintiff's medical need seriously, telling Plaintiff that his condition is not serious enough to be housed at the DSNF. (ECF No. 1 at PageID 5-6.)
On May 8, 2014, Plaintiff asked Officer Dewalt, who is not a party to this action, to remove Devon Walls from his cell. Walls is a cousin of the former sheriff of Dickson County, Tennessee, and is also related to the mother of Plaintiff's child. Plaintiff claims that Walls had been engaged in "whisky making, drug dealing, tobacco dealing, drug use[.]" ( Id. at PageID 8.) Unit Manager Ragland, who is not a party to this action, was attempting to find a cell when an unidentified captain, who is not a party to this action, directed that both inmates be locked in the "hole." ( Id. ) However, it does not appear that Plaintiff was actually moved to the "hole." Instead, on May 8, 2014, inmate Mario Morgan moved into Plaintiff's cell. On May 26, 2014, Morgan began making whiskey. ( Id. )
On or about May 20, 2014,  Plaintiff encountered Dennis Yeager, who is responsible for classification and who also is not a party to this action. ( Id. at PageID 8-9.) Plaintiff told Yeager that Willie had refused to recommend that he be transferred to the DSNF and had discontinued his pain medication a month after he had filed a lawsuit. ( Id. at 9.) Yeager allegedly told Plaintiff there was nothing he could do for him. However, Plaintiff contends that Yeager could have emailed other prisons to see whether any would accept Plaintiff. ( Id. )
On May 22, 2014, the prison was visited by TDOC staff. A diet sheet posted in the kitchen reflected that Plaintiff was to receive meals with no spices and three snacks per day. On the diet line, Plaintiff is served cheese or peanut butter, both of which he describes as "bad, " or sides from the regular meal with no meat. Someone at the WTSP allegedly has altered the records to reflect that Plaintiff is being properly fed. ( Id. at PageID 10.)
On May 24, 2014, a food steward refused to serve Plaintiff a bland tray. Sergeant Murley asked Plaintiff to go to the clinic to get verification. Plaintiff keeps his verification with him at all times. A nurse walked Plaintiff to the kitchen to explain the situation, but the steward refused to listen. ( Id. at PageID 9-10.)
On May 30, 2014, no lunch had been prepared for Plaintiff. Plaintiff was in pain and advised Officer Cotton, who is not a party to this action, that he was leaving because he was not feeling well and that he planned to file a grievance. The complaint alleges that, "[u]pon leaving a tray was brought out." ( Id. at PageID 10.) The tray consisted of rice, greens, corn and a biscuit, which he alleges is not a proper diet for someone with a serious medical condition. ( Id. at PageID 11.)
After receiving his tray, Plaintiff went to the medication window to speak to the nurse on call. Plaintiff told the nurse that, if his name had been submitted to the dietician in Nashville, he would be receiving his medically required bland diet. The nurse allegedly replied that the kitchen had been notified of Plaintiff's dietary restrictions and that the clinic has no control over the kitchen. Plaintiff told the nurse that he was in pain and needed to be transferred to Nashville. The nurse said that Plaintiff had refused medical, but he has been constantly asking to be transferred to Nashville. The nurse said that Plaintiff had been refusing to come to the clinic, and Plaintiff replied that, the last time he visited the clinic, Defendant Willie "stated I have no terminal illness, by stating there was nothing wrong with me." ( Id. ) The nurse, who is not a party to this action, allegedly ignored Plaintiff's statement that he was in pain and told him to leave the clinic. A female officer, who is not a party to this action, walked over and told Plaintiff to leave the clinic. Plaintiff replied that he was just trying to get fed and that he was in pain. ( Id. )
A yard officer arrived, and Plaintiff told him that the kitchen staff knew he was coming to the clinic and showed him a copy of his therapeutic diet order. The officer said the nurses had told him that Plaintiff was refusing medical treatment. Plaintiff replied that he had not been served lunch and was in pain. The officer, who is not a party to this action, told Plaintiff to get away from the clinic. The yard officer claimed that the nurses had told him that Plaintiff's therapeutic diet order would not be renewed and that it was really there to mislead people. ( Id. at PageID 11-12.)
The complaint also alleges:
Since April 2014 the water in cell 4.B.18 has been defected [sic]. One situation the water runs for over two weeks. Two theres only hot water for over two weeks. Three theres only cold water for over two weeks. For this day 6.3.2014 prison locked down and officer Fussell ...