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Rucker v. Lindamood

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

December 12, 2016

MORRIS RUCKER, Plaintiff,
v.
CHERRY LINDAMOOD, et al., Defendants.

          MEMORANDUM

          WILLIAM J. HAYNEX JR. Senior United States District Judge

         Plaintiff, Morris Rucker, an inmate at the South Central Correctional Facility ("SCCF") filed this pro se action under 42 U.S.C. § 1983 against the Defendants: Cherry Lindamood, f/n/u Frank, Jane Doe Nurses, "Centennial Med. Ctr Employees, " Dr. Ron Wilson, and Corizon Medical Services. Plaintiff asserts claims for deliberate indifference to his serious medical needs, racial discrimination, and retaliation. Plaintiff requests "immediate health care, " including "appropriate/effective medications" as well as an injunction from retaliation by SCCF officials. Plaintiff also seeks money damages.

         According to his complaint, Plaintiff suffers from chronic obstructive pulmonary disease ("COPD"). (Docket Entry No. 1, Complaint, at 6). On May 5, 2016, Plaintiff alleges that he was placed in SCCF's clinic for observation and experienced difficulty breathing, shortness of breath, wheezing, and coughing. Id. at 7. Plaintiff alleges that he was given breathing treatment, but "did not have the right inhaler." Id. On May 29, 2016, Plaintiff alleges that he was again placed in the SCCF clinic for observation and experienced difficulty breathing, coughing, and wheezing. Id. at 8. Plaintiff alleges that Defendant Frank, a nurse practitioner, ordered SCCF Nurse Harville not to give Plaintiff a rescue inhaler, but he was provided breathing treatment. Id. On June 1, 2016, Plaintiff alleges that Dr. Coble examined Plaintiff and prescribed a rescue inhaler for Plaintiff. Id.

         On My 11, 2016, Plaintiff alleges that a pulmonary physician specialist at Meharry Hospital Clinical Services examined Plaintiff and recommended that Plaintiff "continue spirva advir ventolin inhalers and breathing treatment 3x's per day as needed." Id. at 6. Plaintiff alleges that the recommended treatment "worked favorably" until My 16, 2016, when Plaintiffs inhaler ran out. Id. Plaintiff alleges that he asked SCCF Nurse Keeon when his inhaler would be refilled, and she responded that "it could take up to 3 weeks because Corporate Office had to approve it." Id. at 6-7. Plaintiff alleges that he was forced to use a less effective breathing treatment while waiting for his inhaler prescription to be refilled. Id. at 7.

         On My 17, 2016, Plaintiff alleges that he filed a "Title 6 Complaint" against SCCF Nurse McClain for being disrespectful and referring to Plaintiff as "boy." Id. at 7-8. Plaintiff alleges that this complaint and another complaint against Nurse McClain are missing as a retaliatory measure for Plaintiffs filing complaints. Id. at 8.

         On My 22, 2016, Plaintiff alleges that all of his prescribed medications expired and that Defendant Frank told SCCF Nurse Robertson that Plaintiffs medications were intentionally not renewed. Id. at 7. According to his complaint, Plaintiff "took the statement to mean that [Defendant] Frank was discriminating against [him] ."Id. Plaintiff alleges that Defendant Frank made "derogatory comments" about Plaintiff. Id.

         On My 27, 2016, Plaintiff alleges that Defendant Frank "defied Dr. Coble's orders and refused to renew [his] blood pressure medications." Id. at 8.On My 28, 2016, Plaintiff alleges that Defendant Frank issued an order directing the other nurses not to give Plaintiff breathing treatment unless his oxygen "fell below 90." Id. at 7. Plaintiff alleges that Defendant Frank's "directive [was] in direct contradiction to what the specialist recommended, " because the specialist recommended that all nurses check Plaintiffs vital signs and listen to his lungs to determine if he were wheezing. Id. Plaintiff also alleges that Defendant Frank told other nurses that Plaintiff was faking shortness of breath and that Plaintiff was "using too must medication in his nebulizer." Id. Plaintiff alleges that Defendant Frank's actions were "negligent and discriminatory due to [Plaintiffs] race." Id.

         On August 2, 2016, Plaintiff alleges that Defendant Frank refused to renew Plaintiffs "breathing med singler" and placed Plaintiff on medications that caused Plaintiff adverse gastrointestinal side-effects. Id. at 8.

         Plaintiff alleges that he is "being denied access to the grievance procedure" and is therefore "forced [] to continue to [] seek medical service from inferior nurses who are abusive, incompetent and neglectful." Id.

         Under 28 U.S.C. § 1915(e)(2), the Court must conduct an initial review of any complaint filed in forma pauperis, and dismiss the complaint if the complaint is facially frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief against a defendant who is immune from such relief. In reviewing the complaint, "a district court must (1) view the complaint in the light most favorable to the plaintiff and (2) take all well-pleaded factual allegations as true." Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d461, 466 (6th Cir. 2009)). A pro se pleading must be liberally construed and "held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

         To state a claim under 42 U.S.C.§1983, Plaintiff "must set forth facts that, when construed favorably, establish (1) the deprivation of a right secured by the Constitution or laws of the United States (2) caused by a person acting under the color of state law." Burley v. Gagacki, 729 F.3d 610, 619 (6th Cir. 2013).

         Plaintiff names Corizon Medical Services ("Corizon") as a Defendant in this action. Defendant Corizon, a private medical-care provider, may be subject to a § 1983 action as an entity that provides medical care to individuals in state custody. See West v. Atkins, 487 U.S. 42, 54 (1988) (holding that a private medical provider contracted to provide medical care to state prisoners is a state actor for purposes of § 1983). Yet, Defendant Corizon cannot be liable solely on the basis of respondeat superior. McQueen v. Beecher Cmty. Sch., 433 F.3d460, 470 (6th Cir. 2006). To state a viable claim against Corizon, Plaintiff must allege plausible facts that he suffered an injury caused by an official policy or custom of Defendant Corizon. Thomas v. Coble, 55 F.App'x 748, 749 (6th Cir. 2003) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978)). Here, Plaintiff alleges that as a result of an official Corizon policy or custom on approving certain medications, Plaintiff did not receive the treatment recommended by a physician. Thus, the Court concludes that Plaintiff states a plausible claim against Defendant Corizon.

         As to Defendants Lindamood and Wilson, Plaintiff does not allege specific facts about any of these Defendants' conduct or omissions that is required to state a viable claim. Dunn v. State of Tennessee, 697 F.2d 121, 128 (6th Cir. 1982). Thus, Plaintiffs claims against Defendants Lindamood and Wilson should be dismissed.

         As to Plaintiffs allegations of retaliation, Plaintiff alleges that he submitted two complaints against Nurse McClain that were later missing in retaliation for Plaintiffs filing his complaints. Prisoners have a First Amendment right to petition the state for redress of grievances, Noble v. Schmitt87 F.3d 157, 162 (6th Cir. 1996) (citations omitted), but a conclusory allegation of retaliation, standing alone, is insufficient to state a claim. LaFountain v. Harry, 716 F.3d 944, 949 (6th Cir. 2013) (citing Bishop v. Lucent Techs., Inc., 520 ...


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