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Tankesly v. Corrections Corporation of America

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

March 2, 2017

CALVIN TANKESLY, JR. # 90944, Plaintiff,

          Trauger Judge


          Joe B. Brown United States Magistrate Judge

         For the reasons explained below, the Magistrate Judge RECOMMENDS that: 1) the motions for summary judgment filed by Dr. Robert Coble, M.D., Nurse Practitioner (NP) Susan Martin, and Nurse Karen Orton (Docs. 218, 223) be GRANTED; 2) all federal law claims against Dr. Coble, NP Martin, and Nurse Orton be DISMISSED WITH PREJUDICE; 3) the district court DECLINE TO EXERCISE SUPPLEMENTAL JURISDICTION over plaintiff's state law claims against Dr. Coble, NP Martin and Nurse Orton; 4) plaintiff's state law claims be DISMISSED WITHOUT PREJUDICE to whatever relief plaintiff may be entitled in state court; 5) acceptance and adoption of this Report and Recommendation (R&R) constitute the FINAL JUDGMENT in this action; 6) any appeal NOT BE CERTIFIED as taken in good faith pursuant to 28 U.S.C. § 1915(a)(3).


         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 1, 2014[1] alleging violations under 42 U.S.C. 1983; the Americans with Disabilities Act (ADA) of 1990, 42 U.S.C. §§ 12101 et seq; 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) and “1981 2(b)(3).” Plaintiff also alleged 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.

         The Magistrate Judge entered a R&R on June 9, 2015 (“previous R&R”) recommending that all federal law claims be dismissed against all defendants, and that the court decline to exercise its supplemental jurisdiction over plaintiff's state law claims. (Doc. 145) The Magistrate Judge incorporates the introduction and background section of the previous R&R herein by reference.

         On December 31, 2015, the District Judge accepted the previous R&R in part and rejected it in part. (Doc. 192) The District Judge rejected the recommendation that the claims under 42 U.S.C. § 1983 and state law against Dr. Coble, NP Martin, and Nurse Orton be dismissed. (Doc. 192) The District Judge accepted “the recommendation that all claims against the remaining defendants and all claims under the ADA, Title VII, the RA, 42 U.S.C. § 1981 and the Fourteenth Amendment be dismissed sua sponte under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim for which relief may be granted.” (Doc. 192)

         On May 26, 2016, Dr. Coble and Nurse Orton filed a joint motion for summary judgement (Doc. 218), memorandum of law with attachments (Docs. 219-21), and joint statement of undisputed material facts (Doc. 222). Plaintiff filed a response in opposition to the joint motion on August 1, 2016 (Doc. 258), and objections to their consolidated statement of undisputed facts (Doc. 259). Dr. Coble and Nurse Orton filed a reply on August 15, 2016 (Doc. 268), following which plaintiff filed a response to their reply on September 1, 2016 (Doc. 276).

         NP Martin filed a motion for summary judgment on June 1, 2016 (Doc. 223), a supporting memorandum of law (Doc. 225), her sworn declaration (Doc. 226), and a statement of undisputed material facts (Doc. 227). Plaintiff filed a response in opposition to NP Martin's motion for summary judgment on August 15, 2016 (Doc. 270), and opposition to NP Martin's statement of undisputed material facts (Doc. 271). NP Martin filed a reply on August 29, 2016 (Doc. 274), following which plaintiff filed a response to NP Martin's reply on September 19, 2016 (Doc. 282).

         This matter is now properly before the court.


         A. Summary Judgment

         Summary Judgment is appropriate only where “there is no genuine issue as to any material fact and the movant is entitled to summary judgment as a matter of law.” Rule 56(a), Fed. R. Civ. P.; see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Gillis v. Miller, 845 F.3d 677, 683 (6th Cir. 2017). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Williams v. AT&T Mobility Services LLC, 847 F.3d 384, 387 (6th Cir. 2017). The moving party has the burden of showing the absence of genuine factual disputes from which a reasonable jury could return a verdict for the non-moving party. Anderson, 477 U.S. at 249-50; Stiles ex. Rel. D.S. v. Grainger County, Tenn., 819 F.3d 834, 847 (6th Cir. 2016). Inferences from underlying facts “must be viewed in the light most favorable to the party opposing the motion.” See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., Ltd., 475 U.S. 574, 587 (1986); Rogers v. O'Donnell, 737 F.3d 1026, 1030 (6th Cir. 2013).

         In considering whether summary judgment is appropriate, the court must “look beyond the pleadings and assess the proof to determine whether there is a genuine need for trial.” Sowards v. Loudon County, 203 F.3d 426, 431 (6th Cir.), cert. denied, 531 U.S. 875 (2000). If there is a genuine issue of material fact, then summary judgment should be denied. Sowards, 203 F.3d at 431. However, “[t]he moving party need not support its motion with evidence; instead, it only must point out the deficiencies in the nonmoving party's case.” Max Arnold & Sons, LLC v. W.L. Hailey & Co., Inc., 452 F.3d 494, 507 (6th Cir. 2006)(citing Celotex Corp., 477 U.S. at 324-25).

         “Once the moving party has presented evidence sufficient to support a motion for summary judgment, the nonmoving party is not entitled to trial merely on the basis of allegations; significant probative evidence must be presented to support the complaint.” Jones v. City of Franklin, et al., __ Fed.Appx. __, 2017 WL 383383 * 2 (6th Cir. 2017)(citing Goins v. Clorox Co., 926 F.2d 559, 561 (6th Cir. 1991)). “[T]o withstand a properly supported motion for summary judgment, plaintiff must do more than rely merely on the allegations of h[is] pleadings or identify a ‘metaphysical doubt' of hypothetical ‘plausibility' based on a lack of evidence; [h]e is obliged to come forward with ‘specific facts, ' based on ‘discovery and disclosure materials on file, and any affidavits, ' showing that there is a genuine issue for trial.” Rule 56(c), Fed. R. Civ. P.; Chappell v. City of Cleveland, 585 F.3d 901, 912 (6th Cir. 2009)(citing Matsushita Elec. Indus. Co., Ltd., 475 U.S. at 586-87). Conclusory allegations, speculation, and unsubstantiated assertions are not evidence, and are not sufficient to defeat a well-supported motion for summary judgment. Jones, __ Fed.Appx. __, 2017 WL 383383 * 2 (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990)). In other words, to defeat summary judgment, the party opposing the motion must present affirmative evidence to support his or her position; a mere scintilla of evidence is insufficient. See Brown v. Battle Creek Police Department, 844 F.3d 556, 565 (6th Cir. 2016); Bell v. Ohio State University, 351 F.3d 240, 247 (6th Cir. 2003)(citing Anderson, 477 U.S. at 252).

         B. 42 U.S.C. § 1983

         To state a claim under § 1983, plaintiff must allege and show: 1) that he was deprived of a right secured by the Constitution 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)). Plaintiff also “must establish that the defendant acted knowingly or intentionally to violate his . . . constitutional rights . . . mere negligence or recklessness is insufficient.” Rainey v. Patton, 534 Fed.Appx. 391, 393 (6th Cir. 2013)(quoting Ahlers v. Schebil, 188 F.3d 365, 373 (6th Cir. 1999)(citing Harlow v. Fitzgerald, 457 U.S. 800, 815-19 (1982)).

         C. ANALYSIS

         1. Dr. Coble's Motion for Summary Judgment

         The complaint alleges that Dr. Coble was deliberately indifferent to plaintiff's serious medical needs in violation of his rights under the Eighth Amendment.[2] Plaintiff alleges specifically that Dr. Coble: 1) acted knowingly, deliberately, capriciously, and arbitrarily with the intent to cause pain and suffering (Doc. 1, p. 23); 2) substituted Lortab instead of time released morphine prescribed by oncologist Dr. Michael Sattasiri, M.D. (Doc. 1, pp. 11, 22-23); 3) reduced plaintiff's pain medication after he was examined by Dr. f/n/u Conway without examining plaintiff himself (Doc. 1, pp. 15, 34); 4) discontinued plaintiff's “Flavored Ensures” without examining plaintiff, having been deliberately misinformed by other members of the SCCF medical staff that plaintiff was able to eat (Doc. 1, pp. 13, 16, 22-23, 33, 35); 5) refused to treat plaintiff's weight and muscle loss (Doc. 1, p. 13); 6) refused to check plaintiff's weight (Doc. 1, p. 23); 7) denied plaintiff access to a scale to show that he had regained only 7 lbs. of the 67 lbs. he claims to have lost during and after treatment (Doc. 1, p. 33); 8); refused to assist plaintiff with problems arising from his cancer treatment during recovery (Doc. 1, pp. 16, 34).

         Dr. Coble argues in his motion for summary judgment that: 1) plaintiff was not denied adequate medical care; 2) plaintiff cannot establish that he was deliberately indifferent to plaintiff's serious medical needs; 3) the alleged acts and omissions attributable to Dr. Coble prior to April 1, 2013 are barred by the one-year statute of limitations. Dr. Coble also argues that plaintiff's state law claims should be dismissed with prejudice for failure to comply with state law. (Doc. 219, ¶¶ I.B-C, III, pp. 8-15, 17-18)

“[A] prisoner's Eighth Amendment right is violated when prison doctors or officials are deliberately indifferent to the prisoner's serious medical needs.” Quigley v. Tuong Vinh Thai, 707

F.3d 675, 681 (6th Cir. 2013)(quoting Comstock v. McCrary, 273 F.3d 693, 702 (6th Cir.2001)(citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). An Eighth Amendment claim for the denial of medical care has an objective and subjective component. Quigley, 707 F.3d at 681 (citing Comstock, 273 F.3d at 702). Satisfying the objective component establishes that the alleged deprivation was sufficiently severe, while satisfying the subjective component establishes that the defendant prison officials acted with a sufficiently culpable state of mind. Quigley, 707 F.3d at 681 (citing Comstock, 273 F.3d at 702)).

         Notwithstanding the foregoing, complaints of malpractice or allegations of negligence are insufficient to entitle plaintiff to relief under § 1983. Estelle, 429 U.S. at 105-06. A prisoner's difference of opinion regarding treatment also does not rise to the level of an Eighth Amendment violation. Estelle, 429 U.S. at 107. Finally, where a prisoner has received some medical attention, but disputes the adequacy of that treatment, the federal courts are reluctant to second-guess prison officials' medical judgments and constitutionalize claims which sound in state tort law. Graham ex rel Estate of Graham v. County of Washtenaw, 358 F.3d 377, 385 (6th Cir. 2004)(citing Westlake v. Lucas, 537 F.2d 857, 860 n. 5 (6th Cir. 1976)). In such cases, the medical treatment must be so ...

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