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Mann v. Cook

United States District Court, E.D. Tennessee, Knoxville

September 13, 2017

ANDREW MANN, Plaintiff,



         The Court is in receipt of a pro se state prisoner's civil rights complaint[1] under 42 U.S.C. § 1983 [Doc. 5] and two motions for leave to proceed in forma pauperis [Doc. 3 (in part)[2] and 6]. Plaintiff alleges that he has been denied proper medical care for mastoiditis behind his left ear and a mass in his head [Doc. 5]. Plaintiff identifies the Defendants as the now deceased Doug Cook; Darren Settles, Warden; Centurion Medical Provider (“Centurion”); and Health Administration at the DeBerry Special Needs Facility (“DNSF”). For the reasons set forth below, Plaintiff's motions for leave to proceed in forma pauperis [Docs. 3 (in part) and 6] will be GRANTED, no process shall issue, and this action will be DISMISSED for failure to state a claim upon which relief may be granted under § 1983.[3]

         I. FILING FEE

         It appears from the in forma pauperis motions that Plaintiff lacks sufficient financial resources to pay the filing fee. Accordingly, pursuant to 28 U.S.C. § 1915, the Court will GRANT Plaintiff's motions for leave to proceed in forma pauperis [Docs. 3 (part) and 6]. Because Plaintiff is an inmate in the Deberry Special Needs Facility (“DSNF”), he will be ASSESSED the civil filing fee of $350.00. The custodian of Plaintiff's inmate trust account at the DSNF will be DIRECTED to submit to the Clerk, U.S. District Court, 800 Market Street, Knoxville, Tennessee 37902, as an initial partial payment, twenty percent (20%) of the greater of either the average monthly deposits or the average monthly balance in the account for the six (6) months immediately preceding the filing of the complaint. 28 U.S.C. § 1915(b)(1).

         After full payment of the initial partial filing fee, the custodian shall submit twenty percent (20%) of Plaintiff's preceding monthly income (or income credited to the account), but only when the amount in the account exceeds ten dollars ($10), until the full $350 fee has been paid to the Clerk. 28 U.S.C. § 1915(b)(2). The Clerk will be DIRECTED to send a copy of this Memorandum Opinion and accompanying Order to the custodian of inmate accounts at the DSNF to ensure compliance with these fee-assessment procedures. The Clerk also will be DIRECTED to forward a copy of the Order to the Court's financial deputy.


         Under the Prison Litigation Reform Act (“PLRA”), district courts must screen prisoner complaints and sua sponte dismiss any claims that are frivolous or malicious, fail to state a claim for relief, or are against a defendant who is immune. See, e.g., 28 U.S.C. §§ 1915(e)(2)(B) and 1915(A); Benson v. O'Brian, 179 F.3d 1014 (6th Cir. 1999). The dismissal standard articulated by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and in Bell Atl. Corp. v. Twombly, 550 U.S. 554 (2007) “governs dismissals for failure state a claim under [28 U.S.C. §§ 1915(e)(2)(B) and 1915A] 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 an initial review under the PLRA, 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).

         Courts liberally construe pro se pleadings filed in civil rights cases and hold them to a less stringent standard than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). Allegations that give rise to a mere possibility that a plaintiff might later establish undisclosed facts supporting recovery are not well-pled and do not state a plausible claim, however. Twombly, 550 U.S. at 555, 570. Further, formulaic and conclusory recitations of the elements of a claim unsupported by specific facts are insufficient to state a plausible claim for relief. Iqbal, 556 U.S. at 681.

         In order to state a claim under 42 U.S.C. § 1983, a plaintiff must establish that he was deprived of a federal right by a person acting under color of state law. Black v. Barberton Citizens Hosp., 134 F.3d 1265, 1267 (6th Cir. 1998); see also Braley v. City of Pontiac, 906 F.2d 220, 223 (6th Cir. 1990) (stating that “Section 1983 does not itself create any constitutional rights; it creates a right of action for the vindication of constitutional guarantees found elsewhere.”).


         Plaintiff alleges that on August 21, 2015, Dr. Williams, an ENT (i.e., an Ear, Nose, and Throat specialist) at the Meharry and Vanderbilt Hospitals who was treating him, set a date of September 2015 for Plaintiff to have surgery [Doc. 5 p.5]. The purpose of the surgery was to remove a mass in Plaintiff's head and to clear out an infection behind his left ear that is called mastoiditis [Id.]. In October of 2015, the surgery was performed. However, in the interim, Plaintiff was forced to travel more than twenty times from his then-assigned prison, Bledsoe Correctional Complex (“BCCX”), to the DSNF-a journey of some 260 miles round trip [Id.]. Plaintiff posits that Defendant Centurion Medical Services, the company who delivers and approves of medical care to inmates in the custody of the Tennessee Department of Correction, made him take those trips, hoping that he would refuse services so that it would not have to pay for Plaintiff's treatment and surgery [Id.]. Plaintiff asserts that he has taken more than fifteen antibiotics, both orally and intravenously.[4]

         Dr. Williams also recommended or requested that Plaintiff have follow-up surgery to ensure “that everything was done correctly and that [Plaintiff] was free of any future infection and growth” [Id.]. However, Defendant Centurian and the doctors at DNSF refused to approve of the second surgery and Plaintiff has now lost over 95% of his hearing in his left ear due to the malpractice of the doctors [Id. at 5-6]. Plaintiff surmises that the DNSF doctors comply only with the orders with which they want to comply and that they decide to provide the course of treatment that will save money for the State [Id. at 6].

         In June of 2016, the doctors at the BCCX saw a growth protruding above Plaintiff's left ear and a couple of holes in his ear canal [Id.]. Due to severe pain in Plaintiff's left ear, he was rushed to the DNSF, and there he was told that he needed a prompt follow-up appointment with Dr. Williams [Id.]. Plaintiff had two CT-Scans performed and then saw Dr. Williams [Id.]. Dr. Williams advised Plaintiff that he needed another surgery to repair the holes in his ear canal and needed to remain at DNSF until the request for a second surgery was completed and he could see an audiologist for a second opinion [Id.].

         Plaintiff was admitted to a skilled unit at DNSF for treatment that he characterizes as “a complete joke” [Id.]. At some point, Dr. Conway overrode Dr. Williams' request that Plaintiff remain at DNSF until he could be seen by an audiologist and, in turn, by Dr. Williams and he (Dr. Conway) sent Plaintiff back to BCCX [Id.]. Plaintiff maintains that, at the time of his transfer to BCCX ...

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