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Taylor v. First Medical Management

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

August 11, 2017

JAMES WILLIAM TAYLOR, Plaintiff,
v.
FIRST MEDICAL MANAGEMENT, et al., Defendants.

          Trauger, Judge

          REPORT AND RECOMMENDATION AND ORDER

          JEFFERY S. FRENSLEY, United States Magistrate Judge

         I. Introduction and Background

         This matter is before the Court upon two Motions to Dismiss filed pursuant to Fed.R.Civ.P. 12(b)(6): the first, filed by Defendants Thorten, Rhodes, King, Johnson, Colson, Davis, Duffel, Hassan, Hodge, and Little (collectively referred to as the “TDOC Defendants”) (Docket No. 180); and the second, filed by Defendants First Medical Management (“First Medical” or “FMM”), Salcedo, and McNeal (collectively referred to as the “Medical Defendants”) (Docket No. 199). Each Motion is accompanied by a supporting Memorandum of Law. Docket Nos. 181, 199-1.

         Plaintiff has filed a Response in opposition to each Motion. Docket Nos. 192, 201.

         Also pending before this Court are Plaintiff's “Motion to Re-Issue Summons, ” filed on February 2, 2017, which seeks to have summons' issued to “f/n/u Jones, female, ” “f/n/u Jones, male, ” “Michael l/n/u, ” “f/n/u Buchanan, ” “Toni l/n/u, ” Paul Alexander, and Karen Baugh (Docket No. 190), and a “Motion to Strike Plaintiff's Supplemental Pleadings” (Docket No. 198) filed by the Medical Defendants, which seeks to strike two submissions filed by Plaintiff without leave of Court: the first, entitled “Supplemental Pleadings: Damages and a Request for Relief” (Docket No. 193) filed by Plaintiff on February 17, 2017; and the second, entitled “Supplemental Pleadings: Statement of Claim, 42 U.S.C. § 1983, Claim of Serious Physical Injury, Eighth and Fourteenth Constitutional Amendment Violations” (Docket No. 194) filed by Plaintiff on February 27, 2017. Plaintiff's Response to the Medical Defendants' Motion to Dismiss is also a Response in Opposition to the Medical Defendants' Motion to Strike. Docket No. 201.

         Plaintiff, an inmate in the custody of the Tennessee Department of Correction (“TDOC”) who, at all times relevant to the instant action was housed at the Lois M. Deberry Special Needs Facility (“DSNF”), filed this pro se action pursuant to 42 U.S.C. §1983, alleging that Defendants violated his Eighth Amendment rights by being deliberately indifferent to his serious medical needs. Docket No. 1. Plaintiff sues First Medical Management, “f/n/u Jones, female”, “f/n/u Jones, male, ” Dennis Davis, Rueben Hodge, George Little, Alayna Duffel, Shereen Hassan, Ronald Colson, Mark King, “f/n/u McNeil, ”[1] “f/n/u Salcedo, ” Betty Thorten, “Michael l/n/u, ” “f/n/u Buchanan, ” Debra Johnson, B.J. Rhodes, “Toni l/n/u, ” and Paul Alexander, in their official and individual capacities, seeking compensatory and punitive damages. Id.[2]

         A. TDOC Defendants' Motion to Dismiss

         As grounds for their Motion to Dismiss, the TDOC Defendants argue that Plaintiff's claims against Defendants “King, Rhodes, Johnson, Colson, Davis, Duffel, Hassan, Hodge, and Little are based upon respondeat superior and grievance responses, ” neither of which is independently sufficient under §1983. Docket Nos. 180, 181, citing, e.g. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1948 (2009); Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999); Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984); Dunn v. State of Tn., 697 F.2d 121, 128 (6th Cir. 1983); Wilson v. Beebe, 612 F.2d 275, 276 (6th Cir. 1980); Monell v. Dept of Soc. Svcs., 436 U.S. 658, 694 (1978). The TDOC Defendants maintain that because Plaintiff has failed to allege that any of them were personally involved in any alleged Eighth Amendment violations, he has failed to state a claim against them. Id. The TDOC Defendants further maintain that, to the extent that Plaintiff avers that they should be liable for not responding to his grievances regarding the acts of subordinates, those allegations would likewise fail to state a claim against them, as liability under § 1983 must be based on active unconstitutional behavior and cannot be based upon “a mere failure to act.” Id., citing Shehee, 199 F.3d at 300. They contend that allegations that a defendant mishandled a grievance or failed to investigate a complaint fails to state a claim, and they note that, “A supervisory official who is aware of the unconstitutional conduct of his subordinates, but fails to act, generally cannot be held liable in his individual capacity.” Id.

         As to Plaintiff's claims against TDOC Commissioner Little, the TDOC Defendants argue that Plaintiff cannot sustain those claims because Commissioner Little has Eleventh Amendment immunity from suit in his official capacity, and he was not served in his personal capacity. Id., citing, e.g., Alden v. Maine, 527 U.S. 706 (1999); Will v. Mich. Dept. Of St. Police, 491 U.S. 58 (1989); Quern v. Jordan, 440 U.S. 332, (1979); Hans v. Louisiana, 134 U.S. 1, 10 (1890); ACLU v. Tn, 496 F.Supp. 218 (M.D. Tenn. 1980).

         Regarding Plaintiff's claims against Nurse Thorten, the TDOC Defendants maintain that Plaintiff's allegations that Nurse Thorten advised him that his prescription for pain medication had run out but that an order from WalGreens drugstore was on its way to the prison fails to state a claim of deliberate indifference to serious medical needs since a short delay in the receipt of pain medication on two occasions is de minimis and fails to rise to the level of an Eighth Amendment medical indifference claim. Id., citing, e.g., Farmer v. Brennan, 511 U.S. 825, 834 (1994); Hudson v. McMillan, 503 U.S. 1, 8-9 (1992); Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Estelle v. Gamble, 429 U.S. 97, 102-03 (1976); Loukas v. Gundy, 70 Fed.Appx. 245, 247 (6th Cir. 2003). Additionally, the TDOC Defendants note that Plaintiff alleged only that he experienced pain as a result of the delayed receipt of pain medication, not physical injury, and they argue that absent allegations of physical injury, Plaintiff's claim for damages is barred under the PLRA. Id. The TDOC Defendants further note that Plaintiff failed to submit the requisite verifying medical evidence into the record to establish a detrimental effect from the delay in receiving pain medication. Id. The TDOC Defendants argue that Plaintiff has therefore failed to state a deliberate indifference claim against Nurse Thorten. Id.

         Plaintiff responds that “the proof will show that each defendant named in this action acted with deliberate indifference when denying and agreeing to deny plaintiff proscribed [sic] pain medication, antibiotic and physical therapy following his post lower back surgery and each defendant knowingly, intentionally and deliberately engaged in the unlawful act of mental and physical abuse with the intent to cause irreversible damage toward plaintiff's future health.” Docket No. 192. Plaintiff argues that while he was at Centennial Medical Center after his back surgery, he was properly medicated and feeling good, but that his health deteriorated quickly upon his return to DSNF due to DSNF “denying him proscribed [sic] life supporting pain medication and antibiotics which cause[d] plaintiff to blackout and fall to the floor injuring his surgical lower back area, ” resulting in him receiving “chronic care treatment for lower back pain complication[s].” Id.

         Plaintiff reiterates the allegations he levied against Nurses Thorten and Rhodes in his Complaint, and argues that they “had a responsibility to protect the welfare and physical health of plaintiff following post lower back surgery [sic], yet as a nurse [they] refuse[d] to minister care toward plaintiff's serious medical indicated [sic] need while working under color of state law.” Id. He argues that the “acts and actions” of Nurses Thorten and Rhodes set forth in his Complaint violated his Eighth Amendment rights. Id.

         Regarding Health Administrator King, Plaintiff reiterates the allegations levied against him in his Complaint and argues that he “had a responsibility to protect the welfare and physical health of plaintiff following post lower back surgery [sic], yet as the Health Care Administrator he refuse[d] to instruction [sic] his nursing staff to minister care toward plaintiff's serious medical indicated [sic] need while working under color of state law.” Id. (Emphasis original.) He argues that the “acts and actions” of Health Administrator King set forth in his Complaint violated his Eighth Amendment rights. Id.

         As to Deputy Warden Johnson, Plaintiff reiterates his contentions against her and argues that, as the Deputy Warden, she “had a responsibility to protect the welfare and physical health of plaintiff following post lower back surgery, yet as the deputy warden she refuse[d] to take appropriate action to stop the physical and mental abuse and order that First Medical Management Nursing Staff to provided [sic] plaintiff with pain medication, antibiotics and physical therapy.” Id. (Emphasis original.) Plaintiff further asserts that Defendant Johnson “neglect[ed] her duties to corrective physical and mental abuse supports” his claim that she intentionally interfered with his prescribed pain medication and physical therapy, causing him pain, suffering and mental anguish, in violation of his Eighth Amendment rights. Id.

         With respect to his allegations against Warden Colson, Plaintiff argues that Warden Colson was “put on notice” because he filed “numerous emergency grievance[s] complaining about cruel and unusual punishment and denial of pain medication and antibiotics, ” but Warden Colson agreed with the supervisors' responses to Plaintiff's grievances and “refuse[d] to take appropriate action to stop the physical and mental abuse and order First Medical Management Nursing Staff to minister care toward [his] serious medical indicated [sic] need while working under color of state law.” Id. (Emphasis original.) Plaintiff contends that the “acts and action[s] [of Warden Colson] show approval of physical and mental abuse, ” such that Warden Colson acted with deliberate indifference in violation of his Eighth Amendment rights. Id.

         Regarding Plaintiff's claims against Grievance Board Chairman Davis, Grievance Board Member Duffel, and Grievance Board Member Hassan, Plaintiff reiterates his contentions against them and argues that they were “put on notice” because he filed “numerous emergency grievance[s] complaining about cruel and unusual punishment and denial of pain medication and antibiotics, ” but despite their “responsibility to protect the welfare and physical health of plaintiff following” his back surgery, they “refuse[d] to take appropriate action to stop the physical and mental abuse and order First Medical Management Nursing Staff to minister care toward [his] serious medical indicated [sic] need while working under color of state law.” Id. (Emphasis original.) Plaintiff contends that their “acts and action[s] show approval of physical and mental abuse, ” such that they acted with deliberate indifference in violation of his Eighth Amendment rights. Id.

         With regard to his claims against Assistant TDOC Commissioner of Operations Hodge and TDOC Commissioner Little, Plaintiff reiterates the allegations of his Complaint against them and argues that they were “put on notice” because he filed “numerous emergency grievance[s] complaining about cruel and unusual punishment and denial of pain medication and antibiotics, ” but despite their “responsibility to protect the welfare and physical health of plaintiff following” his back surgery, they “refuse[d] to take appropriate action to stop the physical and mental abuse and order First Medical Management Nursing Staff to minister care toward [his] serious medical indicated [sic] need while working under color of state law.” Id. (Emphasis original.) Plaintiff contends that their “acts and action[s] show approval of physical and mental abuse, ” such that they acted with deliberate indifference in violation of his Eighth Amendment rights. Id.

         Plaintiff summarizes that the proof shows that DSNF medical staff “knowingly[, ] deliberately and intentionally denied plaintiff proscribed [sic] pain medication, antibiotics and physical therapy for approximately 94 hours straight and a grand total of approximate [sic] 286 hours missed in the span of three weeks following plaintiff's post lower back surgery.” Id. He avers that the “health care provided to him following his lower back surgery by First Medical Management, Lois M. Deberry Special Needs Facility was reckless[, ] dangerous and below the standard of negligence.” Id. (Emphasis original.) Plaintiff maintains, “Surely the intent on behalf [sic] of First Medical Management Nursing Staff, and Tennessee Department of Correction Correctional Officials at the Lois M. Deberry Special Needs Facility, Nashville Tennessee were to set up surgical infection or worst [sic] that [sic] that cause death, as plaintiff surely felt that he were going to die.” Id.

         For the reasons to be discussed below, the undersigned recommends that the TDOC Defendants' Motion to Dismiss (Docket No. 180) be GRANTED.

         B. Medical Defendants' Motion to Dismiss

         As grounds for their Motion to Dismiss, the Medical Defendants argue that Plaintiff's claims against them are conclusory and fail to state a claim against them for deliberate indifference or a violation of the Eighth Amendment under 42 U.S.C. § 1983. Docket Nos. 199, 199-1. Specifically, the Medical Defendants contend that, although Plaintiff alleges that certain nurses deprived him of pain medication, he does not allege any facts that implicate the director of FMM, Dr. Salcedo or Dr. McNeal; rather, “each and every allegation against these Defendants is a conclusory assertion that they intentionally deprived him of his pain medication or acted with deliberate indifference. There are no factual allegations that describe the specific conduct of any of these Defendants with any degree of particularity that could support a claim for relief under §1983.” Id. The Medical Defendants note that the allegations against them “are essentially identical to those allegations against their co-defendants in each respective section of the Complaint.” Id. The Medical Defendants maintain that, although Plaintiff describes the alleged actions of some Defendants, he does not describe how Defendants FMM, Salcedo, or McNeal “acted with deliberate indifference, ” “intentionally interfered with plaintiff's pain medication, ” or failed to “take appropriate action” against other Defendants. Id. The Medical Defendants argue: “These three allegations are repeated throughout the Complaint, but there are no supporting factual assertions that would entitle the Plaintiff to relief.” Id. The Medical Defendants reiterate their assertion that the entirety of Plaintiff's allegations against them are conclusory and “rely on this Court to make unwarranted factual inferences to fill in the gaps left by the Plaintiff's Complaint, ” such that they fail to state a claim for relief under 42 U.S.C. § 1983. Id. With regard to Plaintiff's claims against them for their “failure to act, ” the Medical Defendants argue that these claims likewise fail to state a claim against them because respondeat superior does not provide a basis for the imposition of liability under § 1983. Id.

         The Medical Defendants further argue that taking Plaintiff's allegations as true that they intentionally interfered with his receiving pain medication or failed to take “appropriate actions” against subordinates who engaged in this same conduct, these allegations are insufficient to state a claim upon which relief can be granted under any Amendment to the Constitution, and they incorporate by reference the TDOC Defendant's arguments and citations in support thereof. Id. They additionally note that deliberate indifference may be found on the part of a physician “where there is evidence tending to establish that the physician is present while the inmate is in distress, that distress is communicated to the physician, and the physician purposefully ignores the distress knowing that an adverse outcome is likely to occur” (id., quoting Jones v. Muskegon County, 625 F.3d 935, 944-45 (6th Cir. 2010)), and they argue that Plaintiff's Complaint contains no such allegations against Drs. Salcedo or McNeal (id.).

         As to Plaintiff's official capacity claims against them, the Medical Defendants incorporate by reference the TDOC Defendants' arguments that an action brought under § 1983 for monetary damages against a state official or state employee in their official capacity is barred by the Eleventh Amendment. Id., citing Will v. Mich. Dept. Of State Police, 491 U.S. 58, 109 (1989) and incorporating the citations contained in the TDOC Defendants' Motion. The Medical Defendants also note that, to the extent they may be deemed private actors or independent contractors with the State, Plaintiff's claims would also fail because “claims against private contractor ‘state actors' in an official capacity proceed in the same manner as claims against government entities in an official capacity.” Id., citing St. v. Corr. Corp. Of Am., 102 F.3d 810, 817 (6th Cir. 1996). They note that an entity is not liable for its employees' actions under respondeat superior, but rather, liability can arise under § 1983 only if the entity's official policy, practice, or custom caused the alleged deprivation of federal rights. Id., citing id; Hocker v. Pikeville City Police Dept., 738 F.3d 150, 158 (6th Cir. 2013). The Medical Defendants argue that Plaintiff has failed to allege that they acted pursuant to an official policy, practice, or custom, and therefore cannot sustain his official capacity claims against them. Id.

         Plaintiff responds that the filing of his “multiple emergency grievances” put the Medical Defendants on notice that he was not receiving pain medication and was therefore “denied medical care and suffering in pain and mental anguish.” Docket No. 201. Plaintiff reiterates his contentions that they “knowingly[, ] deliberately and intentionally denied plaintiff proscribed [sic] pain medication, antibiotics and physical therapy for approximately 94 hours straight and a grand total of approximate[ly] 286 hours missed in the span of three weeks following” his back surgery, and that the health care he received at DSNF was “reckless[, ] dangerous and below the standard of negligence.” Id. Plaintiff again asserts, “sure[ly] the intent on behalf of Defendants . . . were to set up surgical infection or worst [sic] than that cause death, as plaintiff surely felt that he were going to die.” Id. Plaintiff contends, “such negligence on behalf of Defendants . . . left plaintiff to depend on a Prosthetic Medical Device / Walking Cane.” Id. (Emphasis original.)

         For the reasons set forth below, the undersigned recommends that the Medical Defendants' Motion to Dismiss (Docket No. 199) be GRANTED.

         C. Plaintiff's Motion to Re-Issue Summons

         As noted above, also pending before this Court is Plaintiff's “Motion to Re-Issue Summons, ” filed on February 2, 2017, which seeks to have summons' issued to “f/n/u Jones, female, ” “f/n/u Jones, male, ” “Michael l/n/u, ” “f/n/u Buchanan, ” “Toni l/n/u, ” Paul Alexander, and Karen Baugh. Docket No. 190. In that Motion, Plaintiff states, “On January 20, 2017 United States District Court Middle District of Tennessee Nashville Division Judge Trauger / Frensley Granted plaintiff permission of leave of court to identify and refile civil summons on the above named defendants. Plaintiff hereby request[s] that the attach[ed] civil Summons concerning Case No. 3:10-cv-00451 be served upon the above mention[ed] defendants. Plaintiff aver[s] that each defendant named herein and therein are to be named in his or her official and individual capacity.” Id.

         For the reasons discussed herein, the undersigned finds that serving the requested people would be FUTILE, as the allegations of Plaintiff's Complaint fail to state a claim against them. Accordingly Plaintiff's Motion to Re-Issue Summons (Docket No. 190) will be DENIED.

         D. Medical Defendants' Motion to Strike Plaintiff's Supplemental Pleadings

         As noted, also before the Court is a Motion to Strike Plaintiff's Supplemental Pleadings filed by the Medical Defendants pursuant to Fed.R.Civ.P. 12(f). Docket No. 198. The Medical Defendants' Motion seeks to strike two submissions filed by Plaintiff without leave of Court: the first, entitled “Supplemental Pleadings: Damages and a Request for Relief” (Docket No. 193) filed by Plaintiff on February 17, 2017; and the second, entitled “Supplemental Pleadings: Statement of Claim, 42 U.S.C. § 1983, Claim of Serious Physical Injury, Eighth and Fourteenth Constitutional Amendment Violations” (Docket No. 194) filed by Plaintiff on February 27, 2017. Plaintiff's submissions essentially reiterate the allegations of his Complaint, but increase the amount of compensatory and punitive damages he seeks, asserts that he injured his lower back when he had a fever and fell to the floor, and asserts that he was prescribed a walking cane on April 19, 2010 due to the deprivation of his pain medication. Id., referencing Docket No. 193, 194. The Medical Defendants argue that both Plaintiff's February 17 and February 27 supplemental pleadings should be stricken because Plaintiff did not move the Court for permission to supplement the pleadings, and because under Fed.R.Civ.P. 15, there is no factual basis to permit Plaintiff to supplement the pleadings. Id. They note that Fed.R.Civ.P. 15 permits a supplemental pleading “on motion and reasonable notice” with permission from the Court, and further note that the “purpose of a supplemental pleading is to set forth new facts that have occurred since the filing of the original pleading and that affect the controversy and the relief sought.” Id. They assert that Plaintiff has satisfied none of the stated criteria or purposes, such that his supplemental pleadings should be stricken. Id.

         The Medical Defendants argue that, should the Court treat Plaintiff's supplemental pleadings as “amended” pleadings, they should nevertheless be stricken because Plaintiff has not secured either the consent of Defendants or the permission of the Court required to amend his Complaint under Fed.R.Civ.P. 15(a). Id.

         Plaintiff's Response to the Medical Defendants' Motion to Dismiss is also a Response in Opposition to the Medical Defendants' Motion to Strike. Docket No. 201. As pertains to his Response in Opposition to the Motion to Strike, Plaintiff argues that the Court “should freely give leave when justice so requires, ” and he argues that “do [sic] to his illiteracy over-sighting he fail [sic] to title his pleadings under Federal Rules of Civil Procedureal [sic] 15(c)(1)(A)(B)(C) Relation Back of Amendments and (d) Supplemental Pleadings.Id. (Emphasis original.) Plaintiff notes that the Court “may permit supplementation even though the original pleading is defective in stating a claim or defense. . . .” Id., citing Fed. R. Civ. P. 15(d). Plaintiff asks this Court to do so, and to deny the Motion to Strike. Id.

         For the reasons set forth below, the Medical Defendants' Motion to Strike Plaintiff's Supplemental Pleadings (Docket No. 198) will be GRANTED, and Plaintiff's ...


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