United States District Court, E.D. Tennessee
MEMORANDUM AND ORDER
S. MATTICE, JR. UNITED STATES DISTRICT JUDGE.
Anthony Allen, a state prisoner who is confined in the
Lincoln County jail, in Fayetteville, Tennessee, filed a pro
se civil rights complaint for injunctive relief under 42
U.S.C. § 1983, which the Court screened and found to be
insufficient as pled [Doc. 3]. In the screening order, the
Court allowed Plaintiff twenty days to submit an amended
complaint providing specific facts to support the Eighth
Amendment claim alleged in the original complaint
[Id.]. Plaintiff filed the amended complaint [Doc.
4], and it is now before the Court for review to that amended
complaint which must be reviewed in order to determine
whether Plaintiff has corrected the deficiencies noted in the
amended complaint, Plaintiff alleges that, on March 21, 2015,
he sustained a fracture to his right foot. Plaintiff was sent
to the emergency room the next day, where X-rays were taken
of his foot. A few days later, he was provided an orthopedic
boot to stabilize his foot and referred to Dr. Eric Bouldin,
a podiatrist physician and surgeon, for examination.
days after his injury, on March 31, 2015, Plaintiff had his
first visit with Dr. Bouldin. Dr. Bouldin examined
Plaintiff's foot, took more X-rays, reviewed the X-rays,
and diagnosed a “Jones fracture” of the fifth
metatarsus of Plaintiff's right foot. Dr. Bouldin advised
Plaintiff to continue wearing the boot, told him to return to
the doctor's officer every three weeks for three months
for monitoring of his injury and for additional X-rays of his
foot, and placed Plaintiff under a non-weight bearing
stipulation. On the last such visit, Dr. Bouldin reviewed
Plaintiff's X-rays, advised him that the bone had not
completely closed in on its own, and explained that Plaintiff
had two options to close the gap: (1), shock therapy, a
procedure to help stimulate bone growth, which would allow
the bone to fill in completely, or (2) surgery to place a pin
in the bone.
reported to Defendants Nurse Brenda Burns and Assistant Jail
Administrator David Ford the two options to fix the bone in
his foot, but was told that the jail would not pay for either
option. Plaintiff's four grievances complaining about the
matter received no responses, though the grievances did
prompt a meeting with Defendant Ford in the
Administrator's office, where Plaintiff was advised that
the mayor would not like to pay the costs of either option.
Defendant Ford stated that he would take the following steps:
(1) try to resolve the situation by talking to Chief
Administrator Chris Thornton, (2) try to arrange a transfer
to a Tennessee Department of Correction (“TDOC”)
facility where the medical problems could be remedied, and
(3) talk to Defendant Sheriff Murray Blackwelder about
effecting Plaintiff's transfer to a TDOC prison, based on
a medical necessity for treatment for his foot.
and his family have made numerous, but unsuccessful, attempts
to obtain answers as to the how Defendants intend to resolve
Plaintiff's medical problem, but to date Plaintiff has
not afforded the treatment or transferred to a TDOC prison.
Plaintiff asks the Court either to require Defendants to
arrange for him to have surgery on his foot or to transfer
him to a facility where that surgery can be performed.
LAW AND ANALYSIS
indifference to the serious medical needs of prisoners
constitutes the ‘unnecessary and wanton infliction of
pain, ” which violates the Eighth Amendment.
Estelle v. Gamble, 429 U.S. 97, 104 (1976). A
serious medical need is one “that has been diagnosed by
a physician as mandating treatment or one that is so obvious
that even a layperson would easily recognize the necessity
for a doctor's attention.” Blackmore v.
Kalamazoo Cnty., 390 F.3d 890, 897 (6th Cir. 2004). A
sufficiently culpable mental state - one of deliberate
indifference-may be evinced by showing that a defendant
official knows of, but disregards, an excessive risk to an
inmate's heath. Farmer v. Brennan, 511 U.S. 825,
837 (1994). That is, the defendant “must both be aware
of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also
draw the inference.” Id. Prison officials may
be found deliberately indifferent “in intentionally
denying or delaying access to medical care or intentionally
interfering with the treatment once prescribed.”
Estelle, 429 U.S. at 104-05.
have found that, as a matter of law, a broken foot
constitutes a serious injury. Herrington v. Hodge,
No. 2:12-CV-01648-AC, 2016 WL 4361526, at *7 (D. Or. Aug. 12,
2016) (finding that a broken metatarsus in a prisoner's
right foot demonstrated a serious medical need).
Plaintiff's allegation that he was diagnosed with a
broken metatarsus in his right foot constitutes a serious
medical need and, therefore, satisfies the first component of
an Estelle claim.
question becomes therefore whether he has stated enough facts
to show that Defendants were deliberately indifferent to that
serious medical need.
contends that he informed Defendants Nurse Burns and
Assistant Jail Administrator Ford about the options for shock
therapy or surgery presented to him by Dr. Bouldin and that
he was told that the jail would not pay for either option.
Plaintiff does not allege that gave that same information to
Defendants Sheriff Murray Blackwelder or Chief Jail
Administrator Chris Thorton. Plaintiff maintains only that
Defendant Ford told him that he would speak Defendant Thorton
about shock treatment and surgery and to Defendant
Blackwelder regarding Plaintiff's possible transfer to a
state prison for medical reasons.
allegations against Defendants Thorton and Blackwelder are
insufficient to show deliberate indifference, as it has been
defined in Farmer. See Blackmore, 30 F.3d at 896
(knowledge of the asserted serious needs or of circumstances
clearly indicating the existence of such needs, is essential
to a finding of deliberate indifference.”);
Thaddeus-X v. Blatter, 175 F.3d 378, 402 (6th Cir.
1999) (finding that the inquiry for deliberate indifference
is “[w]as this individual prison official aware of the
risk to the inmate's health and deliberately indifferent
to it?” citing Farmer, 511 U.S. at 837).
Plaintiff cannot show, by means of Defendant Ford's
alleged stated intent to discuss Plaintiff's medical
situation with Defendants Thorton and Blackwelder, that
Defendant Ford in fact apprised these Defendants of
Plaintiff's need for further treatment, so that
Defendants Thorton and Blackwelder actually were made aware
of facts revealing Plaintiff's asserted need for either
shock therapy or surgery. Nor can Plaintiff show that
Defendants Thorton and Blackwelder actually drew the
inference that Plaintiff faced a substantial risk of harm
unless he was provided one or the other medical treatment or
was transferred to another facility for medical reasons.
to the extent that Plaintiff seeks to hold these two
Defendants liable for his claimed medical mistreatment based
on their respective roles as supervisory officials over the
jail, a theory of supervisory liability is unacceptable in a
§ 1983 case. See Ashcroft v. Iqbal, 556 U.S.
662, 676 (2009) (“[O]ur precedents establish . . . that
Government officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory
of respondeat superior.”); Monell v. New York City
Dept. of Soc. Servs., 436 U.S. 658, 691 (1978 (finding
that liability under § 1983 may not be imposed simply
because a defendant “employs a tortfeasor”). The
law is settled that § 1983 liability must be based on
more than respondeat superior, or a defendant's right to
control employees. Taylor v. Mich. Dep't of
Corr., 69 F.3d 76, 80-81 (6th Cir. 1995). At a minimum,
“a plaintiff must plead that each Government-official
defendant, through the official's own individual actions,
has violated the Constitution” because “[a]bsent
vicarious liability, each Government official, his or her
title notwithstanding, is only liable for his or her own
misconduct.” Iqbal, 556 U.S. at 676-77.
Plaintiff can still hold these two Defendants liable so long
as he can demonstrate that they authorized, approved, or
knowingly acquiesced in any alleged wrongdoing of a
subordinate. Leach v. Shelby Cnty. Sheriff, 891 F.2d
1241, 1244 (6th Cir. 1989). An “affirmative link”
must exist between the subordinate's misconduct and the