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Taylor v. First Medical Management

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

February 21, 2018

JAMES WILLIAM TAYLOR, Plaintiff,
v.
FIRST MEDICAL MANAGEMENT et al., Defendants.

          MEMORANDUM

          ALETA A. TRAUGER UNITED STATES DISTRICT JUDGE.

         Before the court is the plaintiff's Objection (Doc. No. 207) to the magistrate judge's Report and Recommendation (“R&R”) and Order (Doc. No. 202), recommending that two separate Motions to Dismiss (Doc. Nos. 180, 199) be granted and that this action be dismissed in its entirety with prejudice, ordering that the plaintiff's Motion to Re-Issue Summons (Doc. No. 190) be denied, and that a Motion to Strike Plaintiff's Supplemental Pleadings (Doc. No. 198) be granted. The court construes the plaintiff's filing as objecting both to the recommendation that the Motions to Dismiss be granted and to the order denying the Motion to Re-Issue Summons as futile.

         As set forth herein, the court will affirm the Order denying as futile the Motion to ReIssue Summons (Doc. No. 190) and will overrule the Objection, grant the Motions to Dismiss (Doc. Nos. 180, 199), accept the findings of fact and conclusions of law set forth in the R&R, and dismiss this case with prejudice.

         I. Factual and Procedural Background

         The lengthy and tortuous background of this case need not be recited in detail. It suffices to say that the pro se plaintiff filed suit under 42 U.S.C. § 1983 in May 2010, asserting claims against numerous defendants, some of whom have never been fully identified or served with process, based on alleged violations of the plaintiff's constitutional rights, specifically his Eighth Amendment right to be free from cruel and unusual punishment. The R&R outlines the factual allegations in the Complaint in great detail. The court summarizes them briefly here, just for purposes of clarity in addressing the plaintiff's Objection.

         The plaintiff is and has been at all times relevant to this lawsuit an inmate in the custody of the Tennessee Department of Correction (“TDOC”). In September 2009, he had surgery on his lower back at Centennial Medical Center in Nashville, Tennessee. He received care there for a couple of days following surgery but was discharged to be returned to the Lois M. Deberry Special Needs Facility (“DSNF”) at 8:16 a.m. on September 11, 2009. He alleges that two correctional officers, known by their last names only (both Jones), knew that the plaintiff had been discharged but decided not to request transportation for the plaintiff back to DSNF until approximately 12:30 p.m. The plaintiff claims that they made this decision in order to “intentionally interfere with the treatment prescribed to plaintiff” (Doc. No. 1, at 11) and to “sle[ep] through a days work” rather than having him transported promptly back to the prison. (Doc. No. 1, at 11-12.) The plaintiff suffered mental anguish, pain and suffering as a result of being deprived of prescribed pain medication for approximately four hours (until he was back at DSNF), because the hospital staff would not dispense pain medication to him once he had technically been discharged.

         The plaintiff filed a grievance against the two officers related to this conduct that was denied. In this lawsuit, he asserts claims against the two officers for cruel and unusual punishment, based on their intentional interference with his medical treatment. He also asserts claims against defendants Grievance Board Chairperson Dennis Davis, Grievance Board Member Alayna Duffel, Grievance Board Member Shereen Hassan, Warden Ronald Colson, Assistant Commissioner of Operations Reuben Hodge[1] and TDOC Commissioner George Little “for fail[ing] to take appropriate actions against Co. Jones and Co. Jones, et al. for their acts of cruelty, ” that is, by denying the plaintiff's grievance related to this event or upholding the denial of the grievance on appeal. (Doc. No. 1, at 13; Doc. No. 1-1.)

         The plaintiff also alleges that, on September 14, 2009 at 7:15 a.m. and on September 16, 2009 at 7:45 a.m., he requested pain medication from defendant Betty Thorten, a nurse at DSNF. Thorten explained to him that the plaintiff's prescription for pain medication had “run out” but that an order was on its way from the pharmacy to the prison. (Doc. No. 1, at 15.) He sues Thorten, alleging that her failure to provide him pain medication on those two occasions amounted to deliberate indifference to his serious medical needs.

         He also sues Dr. Pepito Salcedo, Dr. Larry McNeal, and the director of First Medical Management (“FMM”), the entity that contracts with DSNF to provide medical care for inmates, for deliberate indifference, asserting that they deliberately and intentionally failed to provide pain medication and antibiotics that were prescribed to him. He sues Health Administrator Mark King for deeming one of the grievances the plaintiff filed concerning the alleged denial of pain medication to be non-emergent in nature, and he again sues Dennis Davis, Alayna Duffel, Shereen Hassan, Ronald Colson, Reuben Hodge, and George Little based on their failure to “take appropriate actions” in response to the other defendants' denial of prescribed pain medication to the plaintiff.

         In addition, the plaintiff alleges that he filed at least seven “emergency grievances” (on September 15, 18, 21, 22, 23, and 24 and October 26, 2009) based on the denial of pain medications. The medical staff who conducted an initial review of the grievances deemed them not to concern emergencies. All of the grievances were ultimately denied at the initial level and on appeal. The plaintiff sues the responsible individuals both for deeming the grievances not to be emergencies and for denying the plaintiff the prescribed pain medication he sought, including nurse Michael [L/N/U], nurse supervisor Toni [L/N/U], nurse supervisor [F/N/U] Buchanan, B.J. Rhodes, and Paul Alexander. He sues defendants Salcedo, McNeal, King, Davis, Duffel, Hassan, Colson, Hodge, Little, and the unknown director of First Medical Management for failing to take appropriate actions against the medical staff for their deliberate indifference to the plaintiff's medical needs.

         Defendants Thorten, Rhodes, King, Johnson, Colson, Davis, Duffel, Hassan, Hodge, and Little filed their Motion to Dismiss in January 2017. They assert that the claims against Thorten fail because the alleged denial of pain medication on two discrete occasions and for relatively brief periods of time does not amount to deliberate indifference in violation of the Eighth Amendment, and that the claims against the remaining defendants must be dismissed because the mere denial of a grievance, without additional personal involvement, does not give rise to a claim under 42 U.S.C. § 1983. (Doc. No. 181.)

         First Medical Management, Dr. Salcedo, and Dr. McNeal filed their own Motion to Dismiss in May 2017, arguing that the conclusory allegations in the Complaint are insufficient to state a claim against them in their individual or official capacity for which relief may be granted. (Doc. No. 199.)[2]

         The magistrate judge entered the R&R recommending dismissal of the plaintiff's § 1983 claims against all defendants in August 2017. Regarding the claims against Nurse Thorten, the magistrate judge found that the allegations of a short delay in the receipt of pain medications on two occasions does not rise to the level of an Eighth Amendment violation.[3] He found that the “conclusory” claims against the other defendants, including those served and those not served, fail because (1) the plaintiff does not have a constitutional right to have grievances characterized as he wishes or to have them responded to in the way that he wishes; (2) respondeat superior is not a basis for the imposition of liability under § 1983, and the plaintiff fails to allege the personal involvement of any of the other defendants in the acts that he claims violated his rights; (3) § 1983 liability cannot be premised upon a mere failure to act; and (4) the plaintiff has not alleged that his injury was caused by an official custom or policy, for purposes of his official-capacity claims. (Doc. No. 202, at 26-27.)

         The plaintiff objects to the R&R, asserting that “each defendant has acted with deliberate indifference toward the plaintiff's serious medical indicated need when delaying and denying plaintiff prescribed pain medication, antibiotics and physical therapy” and that their actions have had permanent adverse consequences. (Doc. No. 207, at 2.) The plaintiff recognizes that, to establish a claim of deliberate indifference under Farmer v. Brennan, 511 U.S. 825, 834 (1994), a plaintiff must establish both an objective and a subjective component. He argues that he has alleged facts supporting both components with respect to each and ...


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