United States District Court, E.D. Tennessee, Greeneville
CLIFTON L. CORKER JUDGE.
MEMORANDUM AND ORDER
R. MCDONOUGH UNITED STATES DISTRICT JUDGE
the Court is Plaintiff's pro se complaint for violation
of civil rights pursuant to 42 U.S.C. § 1983 [Doc. 1]
and motion for a temporary restraining order and injunctive
relief [Doc. 4]. Plaintiff has also filed a memorandum in
support of his § 1983 complaint [Doc. 3]. For the
reasons discussed below, Plaintiff's motion for a
temporary restraining order and injunctive relief [Doc. 4]
will be DENIED. Defendants Crowell, Kessler,
Ballard, and Corizon will be DISMISSED.
Plaintiff's claims against Defendants Bernard,
Richardson, Jennings, and Ollis in their official capacities
will be DISMISSED. Accordingly, this action
will proceed only as to Plaintiff's claims of deliberate
indifference under the Eighth Amendment against Defendants
Bernard, Richardson, Jennings, and Ollis, in their individual
capacities, and against Defendant Centurion.
currently in custody at the Northeast Correctional Complex
(“NECX”), filed this complaint under 42 U.S.C.
§ 1983 on November 20, 2017, against Defendants Crowell,
Bernard, Richardson, Jennings, Ollis, Kessler, Ballard,
Centurion Medical (“Centurion”), and Corizon
Medical (“Corizon”) [Doc. 1 p. 2]. Plaintiff
brings this action for inadequate medical care in violation
of the Eighth Amendment [Id. at 4].
claims that he has a diagnosed degenerative congential spinal
disorder, which had been previously treated with cortisol
shots [Doc. 3 p. 2]. However, Plaintiff alleges that, upon
his incarceration at NECX, his cortisol treatment ended
[Id.]. Further, Plaintiff claims that Defendant
Bernard informed him during his initial diagnosis that he
would not receive cortisol shots due to the cost of treatment
[Id. at 3]. Plaintiff additionally claims that
Defendant Jennings stated “we do give cortisol shots
but no one here will touch your neck” [Id.].
alleges that he suffered a fracture of his C-1 vertebrae in
2014, and his physical status has “deteriorated
significantly, ” including suffering from neuropathy
and constant pain in his arms, due to the lack of treatment
[Id. at 3]. Plaintiff claims that Defendants have
refused to provide him with cortisol injections, which has
accelerated the degeneration of his spine [Id.].
Instead, Defendant Richardson recently treated
Plaintiff's medical conditions and neuropathy merely by
providing Plaintiff with athlete's foot cream
[Id.]. Moreover, Plaintiff alleges that Defendant
Bernard told Plaintiff that, although he needed surgery, the
State would not pay the “$240, 000 to do it”
[Id.]. Plaintiff claims that Centurion has refused
to provide medically necessary surgery “not as a matter
of necessity but as a matter of cost” [Id. at
4]. Additionally, Plaintiff alleges that surgery and proper
treatment are not being performed because he potentially will
be released in 2019 [Id.]. Plaintiff requests that
the Court order an M.R.I. and spinal surgery to be performed,
as well as costs and any other required medical treatment
[Doc. 3 p. 4].
the Prison Litigation Reform Act (“PLRA”),
district courts must screen prisoner complaints and sua
sponte dismiss those that are frivolous or malicious,
fail to state a claim for relief, or are against a defendant
who is immune. See Benson v. O'Brian, 179 F.3d
1014, 1015- 16 (6th Cir. 1999) (“Congress directed the
federal courts to review or ‘screen' certain
complaints sua sponte and to dismiss those that
failed to state a claim upon which relief could be granted
[or] . . . sought monetary relief from a defendant immune
from such relief.”). The dismissal standard articulated
by the Supreme Court in Ashcroft v. Iqbal, 556 U.S.
662 (2009) and in Bell Atlantic Corp. v. Twombly,
550 U.S. 554 (2007) “governs dismissals for failure
state a claim under [28 U.S.C. §§ 1915(e)(2)(B) and
1915A] 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 an
initial review under the PLRA, 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). However, “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, 561 F.3d 478, 488 (6th Cir. 2009) (citing
Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir.
2009) (citations omitted)).
state a claim under 42 U.S.C. § 1983, Plaintiff must
establish that he was deprived of a federal right by a person
acting under color of state law. Black v. Barberton
Citizens Hosp., 134 F.3d 1265, 1267 (6th Cir. 1998);
O'Brien v. City of Grand Rapids, 23 F.3d 990,
995 (6th Cir. 1994); Russo v. City of Cincinnati,
953 F.2d 1036, 1042 (6th Cir. 1992); see also Braley v.
City of Pontiac, 906 F.2d 220, 223 (6th Cir. 1990)
(“Section 1983 does not itself create any
constitutional rights; it creates a right of action for the
vindication of constitutional guarantees found
elsewhere.”). In other words, Plaintiff must plead
facts sufficient to show: (1) the deprivation of a right,
privilege, or immunity secured to him by the United States
Constitution or other federal law; and (2) that the
individual responsible for such deprivation was acting under
color of state law. Gregory v. Shelby Cty., 220 F.3d
433, 441 (6th Cir. 2000).
Lack of Personal Involvement
has failed to allege the personal involvement of Defendants
Crowell, Kessler, Ballard, and Corizon. A defendant's
personal involvement in the deprivation of constitutional
rights is required to establish liability under § 1983.
Polk Cty. v. Dodson, 454 U.S. 312, 325 (1981);
Miller v. Calhoun Cty., 408 F.3d 803, 817 n.5 (6th
Cir. 2005). Generous construction of pro se complaints is not
limitless; indeed, a court need not assume or conjure up
claims that a pro se litigant has not pleaded. Martin v.
Overton, 391 F.3d 710, 714 (6th Cir. 2004). Plaintiff
must affirmatively show that each Defendant he seeks to hold
liable, through that Defendant's own actions, has
violated his constitutional rights. Robertson v.
Lucas, 753 F.3d 606, 615 (6th Cir. 2014). Other than
listing Defendants Crowell, Kessler, Ballard, and Corizon as
Defendants, Plaintiff's complaint fails to mention these
Defendants or to allege their personal involvement in any
unconstitutional behavior. Where a person is named as a
defendant without an allegation of specific conduct, the
complaint is subject to dismissal as to that defendant, even
under the liberal construction afforded to pro se complaints.
See Gilmore v. Corr. Corp. of Am., 92 F. App'x
188, 190 (6th Cir. 2004) (affirming dismissal of complaint
where plaintiff failed to allege how any named defendant was
involved in the violation of his rights).
these Defendants cannot be held liable due to any potential
supervisory position. Under § 1983, “[g]overnment
officials may not be held liable for the unconstitutional
conduct of their subordinates under a theory of respondeat
superior.” Iqbal, 556 U.S. at 676; see
also Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir.
1984). A plaintiff must show “that the supervisor
encouraged the specific instance of misconduct or in some
other way directly participated in it.”
Bellamy, 729 F.2d at 421 (internal citation
omitted); see also Greene v. Barber, 310 F.3d 889,
899 (6th Cir. 2002) (explaining that “[s]upervisory
liability under § 1983 does not attach when it is
premised on a mere failure to act; it ‘must be based on
active unconstitutional behavior'”) (quoting
Bass v. Robinson, 167 F.3d 1041, 1048 (6th Cir.
1999)). Thus, Plaintiff's complaint fails ...