United States District Court, M.D. Tennessee, Nashville Division
CALVIN TANKESLY, JR. # 90944, Plaintiff,
CORRECTIONS CORPORATION OF AMERICA, ET AL., Defendants. Date Action Reference
REPORT AND RECOMMENDATION
Brown United States Magistrate Judge
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).
INTRODUCTION AND BACKGROUND
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,
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.
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
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)
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).
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).
matter is now properly before the court.
STANDARD OF REVIEW
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).
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).
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).
42 U.S.C. § 1983
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)).
Dr. Coble's Motion for Summary Judgment
complaint alleges that Dr. Coble was deliberately indifferent
to plaintiff's serious medical needs in violation of his
rights under the Eighth Amendment. 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).
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,
“[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)).
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 ...