United States District Court, M.D. Tennessee, Nashville Division
CHRISTOPHER KIRBY, No. 0571547, Plaintiff,
TONY MAYES, et al., Defendants.
WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE.
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).
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.
PLRA Screening Standard
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).
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)).
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).
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
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).
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.
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).
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).
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.)
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]
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.)
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.
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).
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 ...