United States District Court, M.D. Tennessee, Nashville Division
CALVIN TANKESLY, JR. #90944, Plaintiff,
CORRECTIONS CORPORATION OF AMERICA, ET AL., Defendants.
REPORT AND RECOMMENDATION
JOE B. BROWN, Magistrate Judge.
For the reasons explained below, the Magistrate Judge RECOMMENDS that: 1) the motion for judgment on the pleadings (Doc. 106) be GRANTED; 2) all federal law claims be DISMISSED WITH PREJUDICE as to all defendants; 3) the district court DECLINE TO EXERCISE SUPPLEMENTAL JURISDICTION over plaintiff's state law claims; 4) this case be DISMISSED WITHOUT PREJUDICE as to whatever relief plaintiff may be entitled in state court on his state law claims; 5) acceptance and adoption of this Report and Recommendation (R&R) constitute the FINAL JUDGMENT in this action; 6) all pending motions be terminated as MOOT.
I. INTRODUCTION AND BACKGROUND
Plaintiff proceeding pro se and in forma pauperis was a prisoner in the South Central Correctional Facility (SCCF) in Clifton, Tennessee when he brought this action on April 3, 2014 alleging violations of his rights under the First, Fifth, Sixth, Eighth, and Fourteenth Amendments; the Americans with Disabilities Act (ADA) of 1990, 42 U.S.C. §§ 12101 et seq; 42 U.S.C. § 1983; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a); §§ 504 and 704(a) of the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq; 42 U.S.C. §§ 1981(a) & "1981 2(b)(3)." Plaintiff also alleges that defendants violated his rights under Article I §§ 8, 13, 16 and 32 of the Tennessee Constitution, as well as Tenn. Code Ann. §§ 4-3-603 and 606.
Plaintiff named the following defendants to this action: 1) Corrections Corporation of America (CCA); 2) Damon Hininger, CCA Chief Executive Officer (CEO); 3) Dr. Jose Garriga, M.D., CCA Director of Health Services; 4) Susan Martin, a nurse practitioner at SCCF; 5) Karen Orton, a nurse at SCCF; 6) Brandi Keaton, a nurse at SCCF; 7) Dr. Robert Coble, M.D., the contract physician at SCCF; 8) Lisa Crum, SCCF security officer; 9) Jessica McElroy, the SCCF grievance chairperson; 10) Daniel Prichard, SCCF Assistant Warden; 11) Avril Chapman, SCCF Warden. Plaintiff is suing defendants in their individual and "corporate" capacity, the latter of which the Magistrate Judge construes as defendants in their "official capacity." Plaintiff alleges that defendants were deliberately indifferent to his serious medical needs, failed to treat his tonsil cancer properly and/or in a timely fashion, and interfered with his rights to file grievances and access to the courts.
This matter was referred to the Magistrate Judge on May 16, 2014 with the following instruction:
[E]nter a scheduling order for the management of the case... dispose or recommend disposition of any pretrial motions under 28 U.S.C. §§ 636(b)(1)(A) and (B)... conduct further proceedings, if necessary, under Rule 72(b), Fed. R. Civ. P., and the Local Rules of Court....
(Doc. 5, p. 6) The District Judge also authorized the Magistrate Judge to "recommend the dismissal of any claim for the reasons set forth in 28 U.S.C. § 1915(e)(2)." (Doc. 5, p. 6)
Plaintiff filed a motion for a preliminary injunction and temporary restraining order (TRO) on June 23, 2014. (Doc. 18) Defendants responded in opposition to plaintiff's motion on July 28, 2014. (Doc. 40) Defendants provided copies filed under seal of plaintiff's medical records, including the period at issue. (Doc. 43) Plaintiff replied on September 10, 2014. (Doc. 64) In his reply, plaintiff filed additional copies of his medical records. The Magistrate Judge entered a R&R on September 17, 2014, recommending that plaintiff's motion for a preliminary injunction and TRO be denied. (Doc. 65) Thereafter, the District Judge entered an order on September 29, 2014 adopting and approving the Magistrate Judge's R&R. (Docs. 81-82)
In an order entered on August 28, 2014, the District Judge set this case for trial on September 15, 2015. (Doc. 56) The trial date has not been changed.
Chief Executive Officer Hininger and Director Garriga filed a motion for judgment on the pleadings on February 9, 2015. (Doc. 106) Plaintiff filed a response to the motion on April 3, 2015. (Doc. 135) The motion for judgment on the pleadings filed by CEO Hininger and Director Garriga is properly before the court.
A. Motion for Judgment on the Pleadings Filed by CEO Hininger and Director Garriga (Doc. 106)
Plaintiff alleges that CEO Hininger and Director Garriga violated his rights under the Eighth and Fourteenth Amendments. Plaintiff alleges specifically that CEO Hininger and Director Garriga: 1) are legally responsible for overseeing the CCA contract staff at SCCF, and for providing adequate medical care to inmates there (Doc. 1, pp. 3, 17-19); 2) did not respond to plaintiff's letters about his medical situation (Doc. 1, p. 3 n. 1); 3) were deliberately indifferent to his serious medical needs (Doc. 1, pp. 8, 18); 4) did not ensure the CCA medical staff at SCCF followed the clinical and nursing protocols established to ensure the medical well being of the inmates (Doc. 1, p. 8); 5) did not ensure the CCA medical staff at SCCF adhered to the letters of agreement that CCA required the staff to sign in which the staff acknowledged in writing they understood their duties and responsibilities to the inmates (Doc. 1, p. 8); 6) developed a protocol to keep inmates from seeing the doctor unless they were "unconscious, or bleeding to death'" (Doc. 1, pp. 9 n. 2, 15); 7) "consistently" delayed the approval of necessary funds " for every individual medical need " (Doc. 1, p. 16)(italics in the original); 8) failed to supervise the CCA staff at SCCF to make sure the staff complied with CCA's contract with the State of Tennessee (Doc. 1, pp. 17-19); 9) "failed to ensure Plaintiff's essential, life saving' and timely Medical Care, deliberately delayed essential Cancer Treatments... while permitting his subordinates to work diligently and without Time Restraints' to find a way to defer their cost to state tax payers...." (Doc. 1, p. 18); 10) played a "direct role" in CCA's policy encouraging departmental savings to maximize corporate profits and year-end bonuses (Doc. 1, pp. 18-19, 30).
Chief Executive Officer Hininger and Director Garriga argue that they are entitled to judgment on the pleadings because plaintiff's allegations against them are conclusory, and because they are not liable under the doctrine of respondeat superior based on the acts and/or omissions alleged against CCA employees at SCCF. Both defendants argue their motion solely in terms of § 1983 notwithstanding that, as noted previously, plaintiff asserts that he is entitled to relief under several other federal acts and statutes, as well as state law.
"The standard of review applicable to a motion for judgment on the pleadings... is the same... standard applicable to a motion to dismiss under Rule 12(b)(6).'" Hayward v. Cleveland Clinig Foundation, 759 F.3d 601, 608 (6th Cir. 2014)(citations omitted). In assessing a motion to dismiss under Rule 12(b)(6), the court is required to construe the complaint in the light most favorable to the plaintiff, accept the plaintiff's factual allegations as true, and determine whether the complaint "contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Heinrich v. Waiting Angels Adoption Services, Inc., 668 F.3d 393, 403 (6th Cir. 2012)(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A motion to dismiss under Rule 12(b)(6) "should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Dubay v. Wells, 506 F.3d 422, 427 (6th Cir. 2007)(quoting Ricco v. Potter, 377 F.3d 599, 602 (6th Cir. 2004)). Review under Rule 12(b)(6) generally is limited to the pleadings. See Tellabs, Inc. v. Makor Issues & rights, Ltd., 551 U.S. 308, 322-23 (2007); see also Buck v. Thomas M. Cooley Law School, 597 F.3d 812, 816 (6th Cir. 2010).
To state a claim under § 1983, the plaintiff must allege and show: 1) that he was deprived of a right secured by the Constitution and/or laws of the United States; and 2) that the deprivation was caused by a person acting under color of state law. Wershe v. Combs, 763 F.3d 500, 504-05 (6th Cir. 2014)(citing Flanory v. Bonn, 604 F.3d 249, 253 (6th Cir. 2010)). Both parts of this two-part test must be satisfied to support a claim under § 1983. See Christy v. Randlett, 932 F.2d 502, 504 (6th Cir. 1991). A successful § 1983 claimant also must establish that defendants acted knowingly or intentionally to violate his rights. Daniels v. Williams, 474 U.S. 327, 333-36 (1986); Flagg v. City of Detroit, 715 F.3d 165, 174 (6th Cir. 2013); Ahlers v. Schebil, 188 F.3d 365, 373 (6th Cir. 1999).
Private entities performing traditional state functions like prison management, including health care, act under the color of state law. See Street v. Corrections Corp. of America, 102 F.3d 810, 814 (6th Cir. 1996)(citing Hicks v. Frey, 992 F.2d 1450, 1458 (6th Cir. 1993)("it is clear that a private entity which contracts with the state to perform a traditional function such as providing medical services to prison inmates may be sued under § 1983 as one acting under color of state law.'"). Having established that CEO Hininger and Director Garriga are state actors for purposes of § 1983, the next question is whether CEO Hininger and Director Garriga deprived plaintiff of a right secured by the Constitution and/or laws of the United States.
A close reading of the complaint reveals that the claims enumerated above at pp. 3-4 are conclusory, naked claims unsupported by any factual allegations. Although pro se complaints are held to less stringent standards than complaints prepared by an attorney, see Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011), the courts are not willing to "abrogate basic pleading essentials in pro se suits, " see Clark v. Johnston, 413 Fed.Appx. 804, 817 (6th Cir. 2011)(quoting Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1990)). A "complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory.'" Handy-Clay v. City of Memphis, Tenn., 695 F.3d 531, 538 (6th Cir. 2012)(quoting Eidson v. Tenn. Dep't of Children's Servs., 510 F.3d 631, 634 (6th Cir. 2007)). Conclusory claims such as those enumerated above are subject to dismissal. See Ashcroft, 556 U.S. at 678; Bell Atlantic v. Twombly, 550 U.S. 544, 555 (1995); Erie County, Ohio v. Morton Salt, Inc. 702 F.3d 860, 867 (6th Cir. 2012).
In the event it were determined on subsequent review that the claims enumerated above are not conclusory, CEO Hininger and Director Garriga also argue that the complaint against them should be dismissed because they are not liable under the doctrine of respondeat superior based on the facts alleged. The law is settled that actions brought against state actors such as CEO Hininger and Defendant Garriga cannot be maintained under § 1983 on a theory of respondeat superior, see Collins v. City of Harker Heights, Tex., 503 U.S. 115, 122 (1992); Monell v. Dept. of Social Serv's of The City of New York, et al., 436 U.S. 658, 691-95 (1978); Flagg, 715 F.3d at 174, unless they "directly participated" in the alleged violations of the plaintiff's constitutional rights, see Flagg, 715 F.3d at 174; Copeland v. Machulis, 57 F.3d 476, 481 (6th Cir. 1995); Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984). For vicarious liability to attach, plaintiff must demonstrate that CEO Hininger and Director Garriga "directly participated' in the alleged misconduct, at least by encouraging, implicitly authorizing, approving or knowingly acquiescing in the misconduct if not carrying it out [themselves]." Flagg, 715 F.3d at 174 (citing Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)).
Plaintiff does not allege, nor can it be liberally construed from the complaint, that CEO Hininger and Director Garriga were personally responsible for any of the acts and/or omissions alleged in the complaint against the CCA staff at SCCF, i.e., that they encouraged, directly participated in, authorized, approved, or knowingly acquiesced in the acts and/or omissions alleged. Neither does plaintiff allege that CEO Hininger and/or Director Garriga personally acted pursuant to any policy or custom intended to violate his constitutional rights. See Collins, 503 U.S. at 122; Stemler Hininger City of Florence, 126 F.3d 856, 865 (6th Cir. 1997). On the contrary, plaintiff states numerous times that CEO Hiniger and Director Garriga promulgated policies that were intended to ensure his medical well being while incarcerated in SCCF. (Doc. 1, pp. 8, 18, 20, 21)
Chief Executive Officer Hiniger and Director Garriga's motion for judgment on the pleadings should be granted for the reasons explained above, and plaintiff's claims against them under § 1983 dismissed with prejudice for failure to state a claim on which relief may be granted. For the reasons explained in ¶¶ II.A.2.a-e below, plaintiff's remaining claims against CEO Hiniger and Director Garriga also should be dismissed sua sponte with prejudice under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim on which relief may be granted.
2. Plaintiff's Other Grounds for Relief
As previously noted, plaintiff alleges that his rights were violated under various acts and/or statutes other than §1983. A plain reading of the complaint reveals that plaintiff's demand for relief under those other acts and/or statutes warrants dismissal under 28 U.S.C. § 1915(e)(2))(2)(B(ii).
a. Americans with Disabilities Act (ADA) of 1990 42 U.S.C. §§ 12101 et seq
Plaintiff asserts in the Jurisdiction and Venue section of his complaint that defendants violated his rights under the ADA. (Doc. 1, p. 1) The ADA bars employment discrimination "against a qualified individual on the basis of disability in regard to the... terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). Plaintiff does not mention the ADA anywhere in body of his complaint, he makes no effort to establish a prima facie case under the ADA, nor does he allege that he suffered an adverse employment action due to defendants' alleged acts and/or omissions. Plaintiff's claim(s) under the ADA ...