United States District Court, M.D. Tennessee, Nashville Division
MEMORANDUM AND ORDER
A. Trauger United States District Judge.
Court is in receipt of a pro se prisoner complaint
(Doc. No. 1) and an application (Doc. No. 2) to proceed in
Hawk Willis is an inmate at the Riverbend Maximum Security
Institution in Nashville. It appears from his application
that the plaintiff lacks sufficient financial resources from
which to pay the fee required to file the complaint.
Accordingly, the plaintiff's application is
GRANTED. The Clerk shall file the complaint
in forma pauperis. 28 U.S.C. § 1915(a).
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;
(b) twenty percent (20%) of the average monthly balance in
the plaintiff's inmate trust account for the prior six
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. §
plaintiff brings this action against Tony Parker,
Commissioner of the Tennessee Department of Correction
(TDOC); Centurion of Tennessee, a private entity under
contract to provide health care services for inmates at
Riverbend; Kenneth Williams, Medical Director for TDOC; Dr.
Marina Cadreche, Assistant Commissioner of Rehabilitative
Services for TDOC; and the Tennessee Department of
Correction; seeking declaratory and injunctive relief.
a court ordered medical exam in November, 2006, it was
discovered that the plaintiff had contracted the Hepatitis C
virus. Doc. No. 1 at 10. The plaintiff subsequently tested
positive for Hepatitis B as well. Id. at 12.
infectious disease specialist (Dr. Berthaud) reviewed the
plaintiff's medical records in July, 2014 and concluded
that plaintiff's Hepatitis C could be treated using a
combination of Ribavirin, Pegylated Interferon, alpha 2a and
Solvadi. Id. The plaintiff requested the recommended
treatment but was told that “priority is given to those
who need treatment most.” Id. at 13. The
plaintiff did not fall into that category.
plaintiff wrote a letter to the Commissioner of TDOC
requesting treatment but received no response to the letter.
Id. He filed several grievances requesting treatment
that were either denied or ignored. Id. In the
meantime, the damage to the plaintiff's liver has become
progressively noticeable, Id. at 20, and he now
suffers from diabetes. Id. at 14.
plaintiff claims “more than 3 years after a meaningful
treatment was ordered, the Defendants are refusing to provide
treatment, although drugs to cure Hepatitis C are readily
available, specifically the latest generation drug,
Maverick.” Id. He alleges that the defendants
have been deliberately indifferent to his serious medical
needs and that “the Defendants are imposing improper
barriers to withhold HCV treatment, for the purpose of
limiting the number of prisoners who receive treatment in
order to limit financial responsibility.” Id.
at 13. The plaintiff also alleges an excessive use of force
claim by asserting that “ .... the Defendants'
actions of denying the Plaintiff's treatment for years
does constitute attempted murder.” Id. at 20.
Eighth Amendment guarantees a prisoner the right to medical
care. This right has been violated when jail officials are
deliberately indifferent to a prisoner's serious medical
needs. Estelle v. Gamble, 429 U.S. 97 (1976). The
Plaintiff alleges that he has a serious medical condition
that is not being treated because treatment would be costly.
It can be inferred from his allegations that the choice of
not providing the plaintiff with adequate treatment is a
policy decision that has been made by Centurion of Tennessee
and adopted by TDOC. Because deliberate indifference could be
inferred from the plaintiff's allegations, the Court
finds that the plaintiff has stated a colorable claim for
relief. 28 U.S.C. § 1915A.
noted, however, that the plaintiff has named the Tennessee
Department of Correction as a defendant. This defendant is an
agency of the State of Tennessee. The Eleventh Amendment bars
a suit in federal court by a citizen against a state or its
agencies unless the state has expressly consented to suit by
waiving its sovereign immunity or Congress has clearly
overridden that immunity. Pennhurst State School and