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Webster v. Parker

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

October 31, 2017

JAVON WEBSTER, Plaintiff,
v.
TONY PARKER, et al., Defendants.

          MEMORANDUM AND ORDER

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

         The Court is in receipt of a pro se prisoner Complaint (Doc. No. 1) brought pursuant to 42 U.S.C. § 1983, and an Application to proceed in forma pauperis (Doc. Nos. 5, 11 and 13).[1]

         Javon Webster is an inmate at the South Central Correctional Center in Clifton, Tennessee. It appears from his Applications that he lacks sufficient financial resources from which to pay the fee required to file the Complaint. Accordingly, Plaintiff's Applications are GRANTED. The Clerk shall file the Complaint in forma pauperis. 28 U.S.C. § 1915(a).

         The Plaintiff is herewith ASSESSED the civil filing fee of $350.00. Pursuant to 28 U.S.C. § 1915(b)(1)(A) and (B), the custodian of the Plaintiff's inmate trust account at the institution where he now resides is directed to submit to the Clerk of Court, as an initial partial payment, whichever is greater of:

(a) twenty percent (20%) of the average monthly deposits to the Plaintiff's inmate trust account; or

         (b) twenty percent (20%) of the average monthly balance in the Plaintiff's inmate trust account for the prior six (6) months.

         Thereafter, the custodian shall submit twenty percent (20%) of the Plaintiff's preceding monthly income (or income credited to the Plaintiff's trust account for the preceding month), but only when such monthly income exceeds ten dollars ($10.00), until the full filing fee of three hundred fifty dollars ($350.00) as authorized under 28 U.S.C. § 1914(a) has been paid to the Clerk of Court. 28 U.S.C. § 1915(b)(2).

         A fourth Motion (Doc. No. 14) seeks to amend the Complaint by adding “That the State Defendants have failed to disclose evidence by failing to provide (since Nov. 27, 2015, and all times until this present time) documentation regarding the incident, investigation, and all matters concerning No. 1:17-cv-00030. Respondents have purposely delayed disclosure, hindering Plaintiff's ability to timely and effectively litigate his claim.” Plaintiff requests that the Court “intervene and prevent any further discovery delay from occurring.” At the initial stage of this litigation, the Defendants are exempt from the Plaintiff's requests for discovery. Rule 26(a)(1)(B)(iv), Fed.R.Civ.P. The Court finds, therefore, that the Plaintiff's proposed amendment would be futile. Where amendment of a complaint would be futile, leave to amend should not be granted. Kottmyer v. Maas, 436 F.3d 684, 692 (6th Cir. 2006). Accordingly, Plaintiff's fourth Motion (Doc. No. 14) to amend is DENIED.

         The Plaintiff brings this action against Tony Parker, Commissioner of the Tennessee Department of Correction, Cherry Lindamood, former Warden of the South Central Correctional Center, Corizon Medical Services, and ten members of the staff (f/n/u Pevahouse, Geneva Roberts, Rhonda Staggs, Leigh Staggs, CNS Paden, Jessica McElroy, Dr. Coble, Nurse Frank, Nurse McClain and Candace Murphy) at the South Central Correctional Center.

         On November 27, 2015, the Plaintiff dislocated a finger on his left hand playing basketball. (Doc. No. 1 at 9.) The finger was x-rayed and placed in a splint. (Id.) Later, the Plaintiff was working as a cook in the prison kitchen. Because his finger had not healed properly, he dropped several cookie sheets on his right knee (June 7, 2016). Following the accident, Plaintiff's knee began to ache.

         The Plaintiff filed several grievances related to the medical care he was receiving for these maladies. According to the Plaintiff, these grievances were either ignored or not taken seriously. (Id. at 2.) He now claims that the Defendants violated his right to adequate medical care that the defendants are liable for failing to investigate his grievances, and for punishing him in retaliation for the filing of grievances (the A5/13/16" incident). (Id.)

         The Eighth Amendment guarantees a prisoner the right to medical care. This right has been violated when prison officials are deliberately indifferent to a prisoner's serious medical needs. Estelle v. Gamble, 429 U.S. 97 (1976). The forty eight (48) page Complaint contains numerous references to medical care provided to the Plaintiff. Thus, at first blush, it does not appear that the Defendants were in any way deliberately indifferent to the Plaintiff's serious medical needs. However, the Plaintiff has alleged that he waited “in extreme pain” for up to four months before he was given medication for pain. (Doc. No. 1 at 15.) An inference of deliberate indifference may be drawn from this allegation. Boretti v. Wiscomb, 930 F.2d 1150, 1154 (6th Cir. 1991) (the suffering that arises from a denial of pain medication “may constitute cruel and unusual punishment within the meaning of the Eighth “mendment”); see also Westlake v. Lucas, 537 F.2d 857, 860 (6th Cir. 1976) (a prisoner who suffers pain needlessly when relief is readily available has a cause of action against those whose deliberate indifference is the cause of his suffering). Therefore, the Court finds that the Plaintiff has stated a colorable claim for ' 1983 relief. 28 U.S.C. § 1915A.

         Pro se pleadings are subject to liberal construction. Haines v. Kerner, 404 U.S. 519 (1972). Nevertheless, liberal construction does not require the Court to create a claim which the Plaintiff has not spelled out in his Complaint. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). A Plaintiff is required to plead more than bare legal conclusions. Lillard v. Shelby County Board of Education, 76 F.3d 716, 726 (6th Cir. 1996). He must meet the basic pleading requirements for a complaint in order to state a cognizable claim for relief. Wells, supra. Plaintiff must identify the right or privilege that was violated and the role that each defendant played in the alleged violation. Dunn v. Tennessee, 697 F.2d 121, 128 (6th Cir. 1982).

         In the entire forty eight (48) page Complaint, there are no references made to the Defendants Geneva Roberts, Rhonda Staggs, Corizon Medical Services, Nurse Frank or Nurse McClain. There are no factual allegations offered from which the Court could liberally construe claims against these Defendants. None of these Defendants appear in any of the Plaintiff's exhibits. Accordingly, the claims against these Defendants are DISMISSED. 28 U.S.C. § 1915(e)(2).

         The incident that took place on May 13, 2016 which was retaliatory in nature is not described in the Complaint. In fact, it is only mentioned in passing as an example of Plaintiff being punished in retaliation for the filing of grievances. (Doc. No. 1 at 2.) There are no allegations against any of the Defendants asserting that they retaliated against the Plaintiff for filing grievances. Therefore, any claim of retaliation by the Plaintiff is conclusory in nature and is DISMISSED. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (plaintiff has failed to state a claim of ...


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