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Howell v. Breedlove

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

March 14, 2017

TIMOTHY V. HOWELL, No. 502030, Plaintiff,
v.
MIKE BREEDLOVE, et al., Defendants.

          MEMORANDUM

          WAVERLY D. CRENSHAW, JR. UNITED STATES DISTRICT JUDGE

         Plaintiff, an inmate of the Cheatham County Jail in Ashland City, Tennessee, brings this pro se, in forma pauperis action under 42 U.S.C. § 1983 against Cheatham County Sheriff Mike Breedlove, Lt. J.J. Hannah, Jail Administrator Bobby Whitt, Nurse Jessica Plank, and Dr. Donald Kern, alleging a violation of his civil rights. (Doc. No. 1). As relief, the Plaintiff seeks “compensation for pain and suffering.” (Id. at p. 5).

         The complaint is before the Court for an initial review pursuant to the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. §§ 1915(e)(2) and 1915A.

         I. PLRA Screening Standard

         Under 28 U.S.C. § 1915(e)(2)(B), the court must dismiss any portion of a civil complaint filed in forma pauperis that fails to state a claim upon which relief can be granted, is frivolous, or seeks monetary relief from a defendant who is immune from such relief. Section 1915A similarly requires initial review of any “complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity, ” id. § 1915A(a), and summary dismissal of the complaint on the same grounds as those articulated in § 1915(e)(2)(B). Id. § 1915A(b).

         The Sixth Circuit has confirmed that the dismissal standard articulated by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), “governs dismissals for failure to state a claim under those statutes because the relevant statutory language tracks the language in Rule 12(b)(6).” Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). Thus, to survive scrutiny on initial review, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “[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, 561F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (citations omitted)).

         Although pro se pleadings are to be held to a less stringent standard than formal pleadings drafted by lawyers, Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991), the courts' “duty to be ‘less stringent' with pro se complaints does not require us to conjure up [unpleaded] allegations.” McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979) (citation omitted).

         II. Section 1983 Standard

         Plaintiff brings his federal claims pursuant to 42 U.S.C. § 1983. Title 42 U.S.C. § 1983 creates a cause of action against any person who, acting under color of state law, abridges “rights, privileges, or immunities secured by the Constitution and laws . . . .” To state a claim under § 1983, a plaintiff must allege and show two elements: (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. Tahfs v. Proctor, 316 F.3d 584, 590 (6th Cir. 2003); 42 U.S.C. § 1983.

         III. Motion to Amend

         After filing his complaint, the Plaintiff filed a “Motion for Cruel and Unusual Punishment Neglect, Medical Malpractice.” (Doc. No. 4). The Court construes the Plaintiff's motion as a motion amend his complaint. “The court should freely give leave [to amend] when justice so requires.” Rule 15(a), Fed. R. Civ. P.; Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000). A motion to amend should not be denied unless there is evidence of undue delay, bad faith, undue prejudice to the nom-movant, or futility. Ziegler v. IBP Hog Market, Inc., 249 F.3d 509, 519 (6th Cir. 2001), see Foman v. Davis, 371 U.S. 178, 182 (1962).

         There is no evidence before the Court suggesting any intent on the part of the Plaintiff to delay or prejudice this action. The proposed amendments provide additional information regarding the Plaintiff's allegations. Therefore, the Court will grant the Plaintiff's motion to amend.

         IV. Alleged Facts

         The amended complaint alleges that, after one month of being incarcerated at the Cheatham County Jail in Ashland City, Tennessee, the Plaintiff began to experience a rash and severe itching. He noticed that other inmates were experiencing the same problem. He believes that all of the Defendants knew the cause of the problem was scabies because another inmate had scabies and was later transferred to a different facility. On October 4, 2016, the Plaintiff filed a grievance about his rash and itching. He subsequently filed over twenty (20) additional grievances about the problems. Over the course of three to four months, he went to “sick call” thirty-one (31) times seeking treatment for his rash and itching. Defendant Nurse Plank told the Plaintiff that he did not have scabies, but the Plaintiff did not believe her. Dr. Kern provided the Plaintiff with triamcinolone cream 0.025% for his rash and itching but the Plaintiff believes this cream was not an appropriate treatment. The Plaintiff also was given “other medications” for his symptoms, and Defendant Whitt changed the Plaintiff's detergent for a brief period of time in an effort to diminish ...


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