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McNutt v. Centurion Medical

United States District Court, E.D. Tennessee, Greeneville

February 9, 2018





         Before 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.

         I. BACKGROUND

         Plaintiff, 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].

         Plaintiff 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.].

         Plaintiff 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].

         II. ANALYSIS

         A. Screening Standard

         Under 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)).

         To 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).

         B. Lack of Personal Involvement

         Plaintiff 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).

         Further, 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 ...

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