United States District Court, M.D. Tennessee, Nashville Division
MEMORANDUM AND ORDER
WAVERLY D. CRENSHAW, JR. UNITED STATES DISTRICT JUDGE.
Tucker, an inmate of the Rutherford County Adult Detention
Center in Murfreesboro, Tennessee, has filed this pro
se civil rights action under 42 U.S.C. § 1983 (Doc.
No. 1), along with an application to proceed without
prepaying fees and costs. (Doc No. 2.) The case is before the
Court for a ruling on the application and for an initial
review pursuant to the Prison Litigation Reform Act
(“PLRA”), 28 U.S.C. §§ 1915(e)(2) and
1915A, and 42 U.S.C. § 1997e.
APPLICATION TO PROCEED AS A PAUPER
the Prison Litigation Reform Act (“PLRA”), 28
U.S.C. § 1915(a), a prisoner bringing a civil action may
be permitted to file suit without prepaying the filing fee of
$350 required by 28 U.S.C. § 1914(a). Because it is
apparent from Plaintiff's submission that he lacks the
funds to pay the entire filing fee in advance, his
application to proceed as a pauper (Doc. No. 2) is GRANTED.
to 28 U.S.C. §§ 1915(b) and 1914(a), Plaintiff is
nonetheless assessed the $350.00 civil filing fee. The
Administrator of the Rutherford County Adult Detention
Center, as custodian of Plaintiff's trust account, is
DIRECTED to submit to the Clerk of Court, as an initial
payment, the greater of: (a) 20% of the average monthly
deposits to Plaintiff's credit at the jail; or (b) 20% of
the average monthly balance to Plaintiff's credit for the
six-month period immediately preceding the filing of the
complaint. 28 U.S.C. § 1915(b)(1). Thereafter, the
custodian shall submit 20% of the Plaintiff's preceding
monthly income (or income credited to Plaintiff for the
preceding month), but only when the balance in his account
exceeds $10.00. 28 U.S.C. § 1915(b)(2). Payments shall
continue until the $350.00 filing fee has been paid in full
to the Clerk of Court. 28 U.S.C. § 1915(b)(3).
Clerk of Court MUST send a copy of this Order to the
Administrator of the Rutherford County Adult Detention Center
to ensure compliance with that portion of 28 U.S.C. §
1915 pertaining to the payment of the filing fee. If
Plaintiff is transferred from his present place of
confinement, the custodian must ensure that a copy of this
Order follows Plaintiff to his new place of confinement, for
continued compliance with the Order. All payments made
pursuant to this Order must be submitted to the Clerk of
Court for the United States District Court for the Middle
District of Tennessee, 801 Broadway, Nashville, TN 37203.
INITIAL REVIEW OF THE COMPLAINT
to 28 U.S.C. § 1915(e)(2), the Court is required to
conduct an initial review of any complaint filed in forma
pauperis, and to dismiss the complaint if it is facially
frivolous or malicious, if it fails to state a claim upon
which relief may be granted, or if it seeks monetary relief
against a defendant who is immune from such relief. In
reviewing the complaint to determine whether it states a
plausible claim, “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)). A pro se pleading must be liberally
construed and “held to less stringent standards than
formal pleadings drafted by lawyers.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v.
Gamble, 429 U.S. 97, 106 (1976)).
seeks to vindicate alleged violations of his federal
constitutional rights under 42 U.S.C. § 1983. Section
1983 confers a private federal right of action against any
person who, acting under color of state law, deprives an
individual of any right, privilege or immunity secured by the
Constitution or federal laws. Wurzelbacher v.
Jones-Kelley, 675 F.3d 580, 583 (6th Cir. 2012). Thus,
to state a § 1983 claim, a plaintiff must allege two
elements: (1) a deprivation of rights secured by the
Constitution and 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) (citations omitted).
alleges that around December 8, 2016,  he had a toenail
that was “becoming ingrown” and hurting, so he
asked for nail clippers, but was told that he had to wait for
the barber. Plaintiff asked again for the nail clippers a
week later, and was provided with clippers a few days after
that. Plaintiff alleges that he cut the toenail, but that it
was “a little infected” and looked bad, so he
submitted an emergency sick call request. Plaintiff alleges
that “a few days later . . . around 12/29/16,
” he saw a nurse who told him that, because
he is diabetic, he would have to see the nurse practitioner
about his toe. Plaintiff later saw someone who took a picture
of his toe. On January 9, 2017, he saw someone else who did
not look at his toe, which he alleges was “badly
infected” by then, but cut the nail out of his finger
(which was also infected) and put him on medication. On
February 17, 2017, a nurse practitioner cut the nail out of
Plaintiff's toe, tried to “burn the growth of skin
off, ” and put him on more medication. Plaintiff
alleges that the procedure was painful. On February 27, 2017,
a member of medical staff recommended that Plaintiff see a
specialist. The recommendation was approved on February 28,
and Plaintiff saw the doctor on March 10. The doctor
performed a surgical procedure to treat Plaintiff's
ingrown toenail. At a follow-up visit two weeks later, the
doctor said the wound was healing well. According to
Plaintiff, “[i]t took from December 8, 2016, till
3/10/2017, ” to get proper treatment for his toe. (Doc.
No. 1, at 5.) Plaintiff also alleges that he has been
routinely charged for his health care in jail, including
emergency services and care for his chronic conditions, which
he says violates 18 U.S.C. 4048(b) and Tenn. Code Ann. §
56-7-2355, and that he is “being treated like this
deliberately” because of a previous lawsuit he filed.
(Doc. No. 1, at 6.)
allegations about the treatment he received for an ingrown
toenail do not state a claim for deliberate indifference to
his serious medical needs under the Eighth or Fourteenth
Amendment. The “deliberate indifference”
necessary to violate the constitution is a higher standard
than negligence and requires that the official know of
and disregard an excessive risk to inmate health or
safety. Farmer, 511 U.S. 825, 837 (1994). Deliberate
indifference to a prisoner's serious medical needs
“constitutes the unnecessary and wanton infliction of
pain” and violates the Eighth Amendment. Ruiz v.
Martin, 72 F. App'x 271, 275 (6th Cir. 2003)
(quoting 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 lay person would easily
recognize the necessity for a doctor's attention.”
Villegas v. Metro. Gov't of Nashville, 709 F.3d
563, 570 (6th Cir. 2013). But mere claims of negligent
treatment or medical malpractice do not amount to deliberate
indifference. Estelle, 429 U.S. at 106. “Where
a prisoner has received some medical attention and the
dispute is over the adequacy of the treatment, federal courts
are generally reluctant to second guess medical judgments and
to constitutionalize claims which sound in state tort
law.” Westlake v. Lucas, 537 F.2d 857, 860 n.5
(6th Cir. 1976). To prevail under those circumstances, an
inmate must establish that the treatment he received was
“so woefully inadequate as to amount to no treatment at
all.” Ruiz, 72 F. App'x at 276 (quoting
Westlake, 537 F.2d at 860 n.5).
toenail did not present a serious medical need until it
became infected. Edwards v. Hynes, No. CV 316-019,
2016 WL 5844479, at *3 (S.D. Ga. Sept. 30, 2016), report and
recommendation adopted, No. CV 316-019, 2016 WL 6821099 (S.D.
Ga. Nov. 16, 2016), and report and recommendation adopted,
No. CV 316-019, 2017 WL 235188 (S.D. Ga. Jan. 18, 2017)
(acknowledging that an ingrown toenail can progress to
serious infection, but holding that the plaintiff's
toenail was not a serious medical need when it caused only
itching, pain and a callous); accord Patterson v.
Kim, No. 1:08-CV-873, 2009 WL 2982753, at *8 (W.D. Mich.
Sept. 14, 2009) (“Plaintiff's alleged ingrown
toenail and foot fungus are not ‘serious medical
needs' sufficient to support the objective component of
an Eighth Amendment claim.”); Marchwicz v.
O'Mara, No. 11-CV-109-SM, 2011 WL 5571825, at *4
(D.N.H. Oct. 25, 2011), report and recommendation adopted sub
nom. Marchwicz v. Hillsborough Cty. Dep't of
Corr., No. 11-CV-109-SM, 2011 WL 5570634 (D.N.H. Nov.
16, 2011) (“[T]he court is unable to find a single case
in which an ingrown toenail was deemed by a federal court to
constitute a ‘serious medical need' in a §
1983 action asserting inadequate medical care.”)
According to Plaintiff, once his toe became “a little
infected” and he submitted his sick call request, he
saw a nurse just “a few days later, ” and was
thereafter provided with two rounds of medication and a
procedure to treat his toenail between then and when he was
approved to see a specialist approximately two months later.
Neither the slight delays nor the attempts at more
conservative treatment before Plaintiff was taken to a
specialist constitute such woefully inadequate care as to
amount to none at all.
regard to the medical charges, the Constitution does not
prohibit charging inmates a fee for health care services, as
long as indigent inmates are provided with necessary service
regardless of their ability to pay. White v. Correctional
Medical Services, Inc., 94 Fed.Appx. 262, 264 (6th Cir.
2004). The statutes on which Plaintiff relies for this claim
regulate the health care charges imposed on federal inmates
and detainees (Federal Prisoner Health Care Copayment Act of
2000, 18 U.S.C. 4048) and Tennessee's mandated coverage
provisions for health insurers and health benefit plans
(Tenn. Code Ann. § 56-7-2355), but do not pertain to the
fees that may be charged to state or local inmates by the
local jail in which Plaintiff is incarcerated. The
documentation Plaintiff attaches to his complaint indicates
that the charges assessed against him are in compliance with
the jail's policy, and one of his own grievances on the
matter asserts that staff is “charging us for
everything, ” and not singling him out for medical
charges. (Doc. No. 1, at 12, 14 (emphasis added).)
Accordingly, the charges do not constitute the “adverse
action” necessary to state a claim for retaliation.
See Tankesly v. Corr. Corp. of Am., No. 3:14-00911,
2014 WL 4657481, at *5 (M.D. Tenn. Sept. 17, 2014), report
and recommendation adopted, No. 3:14-CV-00911, 2014 WL
5488759 (M.D. Tenn. Oct. 29, 2014) (holding that plaintiff
did not state a claim for retaliation because sick call
charges, which were pursuant to policy and not
unconstitutional, were not adverse action); see also Hill
v. Lappin, 630 F.3d ...