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Kirby v. Mazes

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

October 20, 2017

CHRISTOPHER KIRBY, No. 0571547, Plaintiff,
v.
TONY MAYES, et al., Defendants.

          MEMORANDUM

          WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE.

         Plaintiff, an inmate of the Bledsoe County Correctional Complex in Pikeville, Tennessee, brings this pro se, in forma pauperis action under 42 U.S.C. § 1983, the Americans with Disabilities Act, 42 U.S.C. § 12131, et seq. (ADA), and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a) (Rehabilitation Act) against Tony Mays, Ernest Lewis, Carolyn Jordan, Frank Heroux, Michael Ward, Charles Sidberry, Tom Rushing, f/n/u Smith, f/n/u Green, f/n/u Davis, f/n/u McGlasson, f/n/u Shoa, and the Tennessee Department of Correction (TDOC), alleging violations of the Plaintiff's federal civil and constitutional rights. (Doc. No. 1). As relief, the Plaintiff seeks compensatory damages and injunctive relief. (Id. at 28).

         The complaint is before the Court for an initial review pursuant to the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. §§ 1915(e)(2) and 1915A.

         I. PLRA Screening Standard

         Under 28 U.S.C. § 1915(e)(2)(B), the court must dismiss any portion of a civil complaint filed in forma pauperis that fails to state a claim upon which relief can be granted, is frivolous, or seeks monetary relief from a defendant who is immune from such relief. Section 1915A similarly requires initial review of any “complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity, ” id. § 1915A(a), and summary dismissal of the complaint on the same grounds as those articulated in § 1915(e)(2)(B). Id. § 1915A(b).

         The Sixth Circuit has confirmed that the dismissal standard articulated by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), “governs dismissals for failure to state a claim under those statutes 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 scrutiny on initial review, “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). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “[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)).

         Although pro se pleadings are to be held to a less stringent standard than formal pleadings drafted by lawyers, Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991), the courts' “duty to be ‘less stringent' with pro se complaints does not require us to conjure up [unpleaded] allegations.” McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979) (citation omitted).

         II. Alleged Facts

         According to the complaint, the Plaintiff is confined to a wheelchair. In October 2016, the Plaintiff was confined in the Riverbend Maximum Security Institution (“Riverbend”) in Nashville, Tennessee, in a unit without handicapped-accessible shower, ramps, or handrails. (Doc. No. 1 at 6). As a result, the Plaintiff had difficulty transferring himself in and out his wheelchair and into the shower and onto the toilet. Upon his placement in this unit, the Plaintiff contacted Ernest Lewis, acting Associate Warden of Security, and Tony Mays, Warden, and asked for reassignment to an accessible unit. The Plaintiff received no response.

         The Plaintiff was classified as “limited activity” due to his confinement to a wheelchair. Tom Rushing, who oversees inmate classification at Riverbend, was notified of the Plaintiff's classification but he refused to accommodate the Plaintiff's disability by recommending that the Plaintiff be housed in an accessible unit. (Id. at 3). The Plaintiff sent multiple written requests to Defendants Lewis and Mays asking to be transferred to a handicapped-accessible location. Neither Defendant responded, and the Plaintiff remained in the same unit. (Id. at 7-8).

         The Plaintiff contacted the medical department, stating that he was “in need of a real shower chair and handrails in the shower to safely take a shower.” (Id. at 8). Although medical staff responded by ordering a medical shower chair for the Plaintiff and promising to notify the Warden of the Plaintiff's situation, the Plaintiff had to shower for weeks without the chair or handrails and “almost fell 3 times, ” which caused the Plaintiff to experience pain. (Id.) When the Plaintiff returned to the medical department, a staff member prescribed the Plaintiff pain medication and told the Plaintiff the Warden would be notified again of the Plaintiff's need for accommodations.

         On May 7, 2017, still housed in the same unit, the Plaintiff fell while attempting to transfer himself onto the toilet. As a result of the fall, he sustained injuries to his head and back. During his examination by physicians assistant Shao, the Plaintiff stated that his current pain medication was not strong enough. Shao refused to prescribe the Plaintiff stronger pain medication. (Id. at 8).

         The Plaintiff sent sick call requests on May 14, 2017, May 15, 2017, and May 18, 2017, due to pain, loss of appetite, and insomnia; however, he was not permitted to return to the medical department. (Id. at 9). He asked Unit Manager Davis to assist him with obtaining medical treatment and a transfer to a housing unit equipped to meet the needs of inmates with ambulatory disabilities. Davis told the Plaintiff he was unable to help without the permission of the Unit Manager. (Id. at 9).

         On May 22, 2017, the Plaintiff was permitted to see a nurse who placed the Plaintiff on a physician referral list. (Id.) On that same day, the Plaintiff “was taken out of [his] cell to be given a shower in the same non-handicap shower . . . .” (Id.) The Plaintiff asked Corporal of Operations f/n/u Smith to assist him in entering the shower, and Smith replied: “It was not his job to help the handicap [sic], and [the Plaintiff] need[ed] to grow up and stop being a baby and more of a man.” (Id.) While returning to the Plaintiff's cell, the Plaintiff told Smith he was going to “write him up” for Smith's comments. Smith “became upset and maliciously push[ed] [the Plaintiff's] wheelchair real hard and fast, slamming [the Plaintiff] face first into the concret[e] wall.” (Id.) The Plaintiff sustained a black eye and a “whip lash” back injury. (Id.)

         The Plaintiff attempted to obtain medical attention for his injuries over the next seven hours but Smith refused to let the Plaintiff out of his cell. (Id. at 10). Smith gave the Plaintiff an ice bag and threatened the Plaintiff's safety if he told anyone what had happened. When the Plaintiff told Sergeant of Operations Michael Ward about the incident, Ward told the Plaintiff he was “full of shit” and refused to let the Plaintiff see a nurse or doctor. (Id.) On the following day, Smith returned to the Plaintiff's cell and threatened “that he would have [the Plaintiff] fucked off if [he] told.” (Id.)

         Davis responded to the Plaintiff's request for medical attention by sending a nurse to the Plaintiff's cell to evaluate him. During the Plaintiff's examination, Ward sent an officer into the Plaintiff's cell to listen to his conversation with the nurse. (Id. at 11). Corrections Officer f/n/u McGlasson called the Plaintiff a “snich” [sic] and said he “would get what [he] had coming.” (Id.)

         Shortly thereafter, Ward confronted the Plaintiff in the company of McGlasson, and the two officers “became upset and aggressive . . . .” (Id.) They picked the Plaintiff up in his wheelchair and slammed the wheelchair to the floor; McGlasson also choked the Plaintiff. (Id.) The Plaintiff bit McGlasson to stop him from choking the Plaintiff, and the Plaintiff states that he was disciplined for biting McGlasson and has “taken responsibility for [his] action . . . but that dose [sic] not give [McGlasson] a right to slam a person that is fully secure, in full restraints, who is disabled and confined to a wheelchair, and then chooke [sic] him.” (Id. at 12).

         The Plaintiff subsequently was transferred to another unit; however, that unit did not contain an handicapped-accessible shower either. (Id.) There, the Plaintiff received one shower in fifteen days. The Plaintiff continued to write grievances and seek assistance with gaining access to an accessible shower. He also verbally requested a transfer to f/n/u Fish and informed Lewis, Fish, and Mays of the attack by Ward and McGlasson. (Id.) The Plaintiff was briefly transferred to the infirmary, which had a handicapped-accessible shower. (Id. at 13).

         The Plaintiff filed a grievance against Mays, Lewis, Jordan, Davis, Smith, and Shoa. (Id.) After filing the grievance, Mays, Lewis, and Jordan retaliated against the Plaintiff with the assistance of Heroux by moving the Plaintiff into a suicide cell. (Id. at 14). The cell was flooded with “foul smelling sewage water.” (Id. at 15). The inmate who had been in the cell just prior to the Plaintiff had flooded the cell with human waste and toilet water and had “smeared stuff all over the cell walls as well as cut his stomake [sic] with a shaving razor blade and placed blood on the food trap.” (Id. at 14). Because the Plaintiff could not lift himself or his property and no one would assist him, he slept on the floor with his mattress “soaking up the foul smelling sewage water and contaminating” the Plaintiff's blanket. (Id. at 15). When the Plaintiff asked Lewis to be moved out of the suicide ...


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