United States District Court, W.D. Tennessee, Western Division
ORDER TO MODIFY THE DOCKET, PARTIALLY DISMISSING THE
AMENDED COMPLAINT AND DIRECTING THAT PROCESS BE ISSUED AND
D. TODD UNITED STATES DISTRICT JUDGE.
February 2, 2015, Plaintiff Tommy Earl Jones, Tennessee
Department of Correction prisoner number 464968, an inmate
who is currently incarcerated at the Northeast Correctional
Complex (“NECX”) in Mountain City, 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 leave to proceed in
forma pauperis, the appointment of counsel and an injunction.
(ECF Nos. 1, 2, 3 & 4.) The complaint concerns
Plaintiff's previous incarceration at the West Tennessee
State Penitentiary (“WTSP”) in Henning,
Tennessee. On June 24, 2015, the Court issued an order
finding that Plaintiff, a three-strike filer under 28 U.S.C.
§ 1915(g), had sufficiently alleged that he was in
imminent danger of serious physical injury; therefore, the
Court granted leave to proceed in forma pauperis and
assessed the civil filing fee. (ECF No. 5 at 4-7.) However,
the Court also dismissed the complaint for failure to state a
claim on which relief may be granted but granted leave to
amend the § 1983 claim within thirty days. (Id.
at 12-18.)Plaintiff subsequently filed a timely
amended complaint against the sole Defendant, Dr. Jorge
Benitez. (ECF No. 6.)
legal standards for assessing the claims in an inmate's
complaint were set forth in the prior order of dismissal (ECF
No. 5 at 10-12) and will not be reiterated here.
amended complaint restates his claims under the ADA. As
noted, supra note 1, the Court denied leave to amend
the ADA claim; therefore, for the reasons stated in the
previous order (id. at 16-18), the ADA claims are
also restates his § 1983 claims that the Defendant
changed his medication, failed to refer him to a specialist,
failed to recommend that Plaintiff be transferred to the
Deberry Special Needs Facility in Nashville, Tennessee.
However, the claims as re-alleged fail to cure the
deficiencies identified in the prior order, as those actions
are insufficient to establish the subjective component of an
Eighth Amendment violation because, at most, they establish
as noted by the Court in the prior order of dismissal in this
case and also by the Sixth Circuit Court of Appeals in an
appeal from another of Plaintiff's cases, Jones v.
Willie, No. 14-2492-JDT-cgc (W.D. Tenn.), partially
vacated and remanded, No. 15-5658 (6th Cir. Jan. 28,
2016), Jones's claim that he was not provided with a
special diet is contradicted by his allegations in that case
that he “already had documentation of his dietary
restrictions and that a nurse explained these restrictions to
the kitchen staff.” Id., (ECF No. 18 at PageID
for the reasons set forth in the prior order, the above
allegations still fail to state a claim on which relief may
Court does find, however, that Plaintiff's allegations
that the Defendant acted with deliberate indifference by
denying him sufficient pain medication is sufficient to state
a claim under the Eighth Amendment. Process will be issued
solely on that claim.
ORDERED that the Clerk shall issue process for Defendant
Benitez and deliver that process to the U.S. Marshal for
service. Service shall be made on Defendant Benitez pursuant
to Federal Rule of Civil Procedure 4(e) and Tennessee Rules
of Civil Procedure 4.04(1) and (10), either by mail or
personally if mail service is not effective. All costs of
service shall be advanced by the United States. The service
on Defendant Benitez shall include a copy of the amended
complaint (ECF No. 6) and a copy of this order.
further ORDERED that Plaintiff shall serve a copy of every
additional document he files in this cause on the attorneys
for Defendant Benitez or on Defendant Benitez personally if
he is unrepresented. Plaintiff shall make a certificate of
service on every document filed. Plaintiff shall familiarize
himself with the Federal Rules of Civil Procedure and this
Court's Local Rules.
shall promptly notify the Clerk of any change of address or
extended absence. Failure to comply with these requirements,
or any other order of the Court, may result in the dismissal
of this case without further notice.