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McGowan v. Corecivic

United States District Court, W.D. Tennessee, Eastern Division

September 25, 2017

JOHNNY L. MCGOWAN, JR. Plaintiff,
v.
CORECIVIC, ET AL., Defendant.

          ORDER ON PENDING MOTIONS, PARTIALLY DISMISSING COMPLAINT, AND DIRECTING THAT PROCESS BE ISSUED AND SERVED

          JAMES D. TODD, UNITED STATES DISTRICT JUDGE

         On September 20, 2016, Plaintiff Johnny L. McGowan, Jr., a Tennessee Department of Correction (TDOC) inmate who is currently incarcerated at the West Tennessee State Penitentiary in Henning, Tennessee, filed a pro se complaint pursuant to 42 U.S.C. § 1983 and Title III of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12181 et seq. (ECF No. 1.) The filing fee has been paid; therefore, the motion for an extension of time to pay the fee (ECF No. 9) is DENIED as moot.

         McGowan's complaint concerns events that occurred during his previous incarceration at the Hardeman County Correctional Facility (HCCF) in Whiteville, Tennessee. HCCF is operated by CoreCivic, a private prison-management company formerly known as Corrections Corporation of America (CCA).[1] McGowan named CCA as a Defendant and, following the company's name-change, filed motions to amend the case caption and the Defendant's name on the docket. (ECF Nos. 8 & 10.) Those motions are GRANTED. The Clerk is DIRECTED to modify the docket to reflect the change in CCA's name. The Clerk shall record the other Defendants as Dr. First Name Unknown (FNU) Dietz; HCCF Health Administrator Jill Miller; HCCF Warden Grady Perry; Associate Warden Charlotte Burns; Assistant Warden Byron Ponds; TDOC Compliance Officer Darnell Peterson; Sergeants FNU Edwards, Arthur Thomas, FNU Fitzgerald and Mary Robertson; Unit Managers E. Greer, Dorothy Robertson, Tanesha Douglas-Robinson, FNU Owens and Shatasha Jones; Case Manager Tameka Walker; Officers S. Carver, FNU Polk, FNU Cross, LaShun Woods, Barbara Pirtle, Ricky Beasley, and FNU Malone; Marquetta Golden; and Lieutenant (Lt.) Brandon Smith.[2] Defendants are sued in both their individual and official capacities.[3]

         On November 7, 2016, McGowan filed a motion to hold the case in abeyance so he could exhaust his administrative remedies. (ECF No. 6.) That motion is DENIED as moot because Plaintiff has since filed documents demonstrating the exhaustion of several grievances. (E.g., ECF Nos. 15, 16, 18-1, 18-2 & 23.)

         I. The Complaint

         McGowan alleges that on September 14, 2015, he was forced to walk a long distance without his four-prong cane by Defendant Edwards and an unidentified officer. (ECF No. 1 at 8.) McGowan contends the officers could see he was using his cane and that he told them he was Class B Medical; nevertheless, the officers said it did not matter because he had to be handcuffed. (Id.) His hands were handcuffed behind his back, and the officers escorted him for several minutes. (Id.) As they passed Defendant Greer's office, she informed McGowan she had instructed that he be taken to segregation. (Id.) McGowan alleges that he suffers from Isthmic Spondilolisthesis and arthritis in his spine and that he was recovering from fractures in his lower spine at the time. (Id.) McGowan alleges that the actions of Defendant Edwards violated his Eighth Amendment rights, his right to equal protection as a disabled inmate under the Fourteenth Amendment, and the ADA. (Id. at 9.) He further alleges that CoreCivic was negligent in training its security staff on how to escort handicapped inmates from place to place within the prison. (Id.)

         McGowan alleges that on November 12, 2015, he placed “another” of his “numerous” sick call and medical requests to Defendant Dietz and the HCCF medical staff, including Defendant Miller, requesting to have his “keep on person” medications renewed by the doctor. (Id. at 10.) However, his requests allegedly were ignored for several months, causing McGowan to suffer in pain without medication for his serious medical conditions. McGowan alleges that Defendants Dietz and Miller acted with deliberate indifference because they were aware, via his medical file, that he suffers from a thyroid condition, isthmic spondylolisthesis, chronic back pain and arthritis, and that he was recovering from several back fractures. (Id.)

         In January 2016, Defendants Perry, Peterson, Greer, Ponds, Owens, Roberts, Dorothy Robertson, Jones, Walker, Mary Robertson (Robinson), Fitzgerald, Thomas, Woods, Carver, Beasley, Pirtle, Polk, and Cross allegedly “strongly implemented” TDOC policy #506.14.VI(E). (Id. at 11.) McGowan alleges that particular policy provides for “Tier Management” and that the Defendants used it to justify locking inmates who are in double-man cells into their cells for more than sixteen to twenty-three hours per day, which allegedly violates the Eighth Amendment. (Id. at 11-12.)

         McGowan alleges that Defendant Peterson, the TDOC Compliance Officer, allowed the HCCF Defendants to ignore or illegally apply Tier Management and other TDOC policies, which McGowan contends resulted in the violation of his and other inmates' constitutional rights. (Id. at 13-14.)

         On May 19, 2016, McGowan allegedly was again forced to walk without his cane, this time by Defendants Jones, Malone and Perry. (Id. at 14.)[4] After handcuffing him behind his back, Defendants Jones and Malone walked McGowan for several minutes. (Id. at 15.) McGowan alleges that when he had to stop repeatedly to adjust to the pain in his lower back and left knee, he was pushed by Defendant Jones. (Id.) Defendant Perry took over for Jones, and McGowan was walked further until a wheelchair was produced; McGowan was taken to the medical department prior to placement in segregation. (Id.) McGowan asserts this was a violation of the ADA and his constitutional rights. (Id.)

         McGowan further alleges that he was in segregation for twenty days, during which he was subjected to cruel and unusual punishment. He alleges that he was confined in a double cell with small square footage and that the cell doors were barricaded with crossbars and steel grating to obstruct the view and prevent the windows from being washed. (Id. at 16.) Cleaning supplies were not issued daily, in violation of TDOC policy, and the cells were not cleaned at all until they unoccupied by inmates, possibly for thirty days or more. (Id.) Toilets would back up into neighboring cells, and the inmates had to eat their meals in those unsanitary conditions. (Id.) The cell doors were equipped with only one pie-flap or door opening, so that food trays and other items had to be passed through the same opening, which McGowan alleges is unsanitary and unconstitutional. (Id.) He states the segregation showers are not handicapped-accessible, which allegedly violates the ADA and is unconstitutional. (Id.) McGowan contends that Defendants' allowing these conditions to exist amounted to deliberate indifference to his health and safety. (Id. at 17.)

         On February 9, 2017, McGowan filed a motion to amend the complaint. (ECF No. 18.) He seeks to assert a claim for retaliation against Defendant Douglas-Robinson and new Defendant Marquetta Golden, and to assert an excessive force claim against new Defendant Lt. Brandon Smith. The motion to amend is GRANTED.

         In the amendment, McGowan alleges that on August 23, 2016, Defendants Douglas-Robinson and Golden moved him from his job and from (I)-Unit-Cell-A110 to HA-114 in retaliation and as punishment for his grievance against Officer Thomas, who is not a party, after she denied him access to the law library. (Id. at 1-2.)

         McGowan further alleges that after he was placed in a segregation cell on August 23, 2016, his cellmate, Cortez, was brought in from recreation. (Id. at 3.) Once Cortez was inside he announced, “Everybody get your shit off the floor I'm busting a sprinkler” and told McGowan, “I'm busting the sprinkler.” (Id.) Cortez packed his own property and gave it to Defendant Smith. (Id.) When Smith closed the door to the cell, Cortez starting trying to break the sprinkler head with a shoe, and McGowan began “repeatedly telling Lt. Smith that I had nothing to do with whatever is going on I just got over here. Let me out of the cell.” (Id.) Smith ignored McGowan and sprayed pepper spray into the cell, which McGowan alleges was a violation of TDOC policy and amounted to excessive force. (Id. at 4.) As a result, he allegedly suffered from a swollen throat and sinus problems lasting from two to three days. (Id.) McGowan told Defendant Smith about his injuries, and the next day Smith contacted Nurse Rhymes, who is not a party. (Id.) The nurse came to the segregation unit and examined McGowan but “acted as if nothing was wrong” even though his throat was still raw, red and swollen. (Id.) During inspection later on August 24th, McGowan told Defendant Perry what had happened, and the Warden allegedly “approved of” Smith's actions. (Id.)

         McGowan seeks injunctive relief in various forms as well as compensatory and punitive damages against all of the Defendants. (ECF No. 1 at 17-24; ECF No. 18 at 6-7.)

         II. Analysis

         The Court is required to screen prisoner complaints and to dismiss any complaint, or any portion thereof, if the complaint-

(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.

28 U.S.C. § 1915A(b); see also 28 U.S.C. § 1915(e)(2)(B).

         In assessing whether the complaint in this case states a claim on which relief may be granted, the standards under Fed.R.Civ.P. 12(b)(6), as stated in Ashcroft v. Iqbal, 556 U.S. 662, 677-79 (2009), and in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007), are applied. Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). “Accepting all well-pleaded allegations in the complaint as true, the Court ‘consider[s] the factual allegations in [the] complaint to determine if they plausibly suggest an entitlement to relief.'” Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (quoting Iqbal, 556 U.S. at 681). “[P]leadings that . . . are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at 679; see also Twombly, 550 U.S. at 555 n.3 (“Rule 8(a)(2) still requires a ‘showing, ' rather than a blanket assertion, of entitlement to relief. Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only ‘fair notice' of the nature of the claim, but also ‘grounds' on which the claim rests.”).

         “A complaint can be frivolous either factually or legally.” Hill, 630 F.3d at 470 (citing Neitzke v. Williams, 490 U.S. 319, 325 (1989)). “Any complaint that is legally frivolous would ipso facto fail to state a claim upon which relief can be granted.” Id. (citing Neitzke, 490 U.S. at 328-29).

Whether a complaint is factually frivolous under §§ 1915A(b)(1) and 1915(e)(2)(B)(i) is a separate issue from whether it fails to state a claim for relief. Statutes allowing a complaint to be dismissed as frivolous give judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless. Unlike a dismissal for failure to state a claim, where a judge must accept all factual allegations as true, a judge does not have to accept “fantastic or delusional” factual allegations as true in prisoner complaints that are reviewed for frivolousness.

Id. at 471 (citations and internal quotation marks omitted).

         “Pro se complaints are to be held ‘to less stringent standards than formal pleadings drafted by lawyers, ' and should therefore be liberally construed.” Williams, 631 F.3d at 383 (quoting Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004)). Pro se litigants, however, are not exempt from the requirements of the Federal Rules of Civil Procedure. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989); see also Brown v. Matauszak, 415 F. App'x 608, 612, 613 (6th Cir. Jan. 31, 2011) (affirming dismissal of pro se complaint for failure to comply with “unique pleading requirements” and stating “a court cannot ‘create a claim which [a plaintiff] has not spelled out in his pleading'” (quoting Clark v. Nat'l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975))); Payne v. Sec'y of Treas., 73 F. App'x 836, 837 (6th Cir. 2003) (affirming sua sponte dismissal of complaint pursuant to Fed.R.Civ.P. 8(a)(2) and stating, “[n]either this court nor the district court is required to create Payne's claim for her”); cf. Pliler v. Ford, 542 U.S. 225, 231 (2004) (“District judges have no obligation to act as counsel or paralegal to pro se litigants.”); Young Bok Song v. Gipson, 423 F. App'x 506, 510 (6th Cir. 2011) (“[W]e decline to affirmatively require courts to ferret out the strongest cause of action on behalf of pr ...


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