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Johnson v. Lindamood

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

March 7, 2018

KEVIN LEE JOHNSON, Plaintiff,
v.
CHERRY LINDAMOOD et al., Defendant.

          MEMORANDUM OPINION

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

         Kevin Lee Johnson is a state prisoner incarcerated at the Whiteville Correctional Facility in Whiteville, Tennessee, although the events about which he complains took place while he was incarcerated that the South Central Correctional Facility in Clifton, Tennessee. Before the court is Plaintiff's application to proceed in forma pauperis (Doc. No. 2). In addition, Plaintiff has filed a civil rights complaint against Defendants Cherry Lindamood, Ryan Dethrage, Stanly Wilbanks, Rhonda Staggs, and Nurse Jane Doe, which is before the court for an initial review pursuant to the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. §§ 1915(e)(2) and 1915A, and 42 U.S.C. § 1997e.

         I. APPLICATION TO PROCEED IN FORMA PAUPERIS

         Under the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(a), a prisoner bringing a civil action may be permitted to file suit without prepaying the filing fee of $350 required by 28 U.S.C. § 1914(a). Because it appears from Plaintiff's submissions that he lacks sufficient financial resources from which to pay the full filing fee in advance, the application (Doc. No. 2) will be granted.

         Nevertheless, under § 1915(b), Plaintiff remains responsible for paying the full filing fee. The obligation to pay the fee accrues at the time the case is filed, but the PLRA provides prisoner-plaintiffs' the opportunity to make a “down payment” of a partial filing fee and to pay the remainder in installments. Accordingly, Plaintiff will be assessed the full $350 filing fee, to be paid as directed in the order accompanying this memorandum opinion.

         II. INITIAL REVIEW

         Under the PLRA, the court must conduct an initial review of any civil complaint brought by a prisoner if it is filed in forma pauperis, 28 U.S.C. § 1915(e)(2), seeks relief from government entities or officials, 28 U.S.C. § 1915A, or challenges the prisoner's conditions of confinement, 42 U.S.C. § 1997e(c). Upon conducting this review, the court must dismiss the complaint, or any portion thereof that fails to state a claim upon which relief can be granted, is frivolous, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2) and 1915A; 42 U.S.C. § 1997e(c). The Sixth Circuit has confirmed that the dismissal standard articulated by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), “governs dismissals for failure to state a claim under those statutes 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 scrutiny on initial review, “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). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).

         In reviewing the complaint to determine whether it states a plausible claim, “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, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (citations omitted)). A pro se pleading must be liberally construed and “held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

         A. Factual Allegations

         Plaintiff alleges that from approximately December 26, 2016 to January 22, 2017, while he was housed at the South Central Correctional Facility, he was exposed to naked wiring which shocked him nearly every day and his cell was infested with mold, causing him to experience migraine headaches, nausea and pressure in his chest. (Doc. No. 1.) Specifically, Plaintiff alleges that on December 26, 2016, Correctional officer (“CO”) Livingston told CO Wilson to bring Plaintiff a cleaning kit so he could clean his cell, but Plaintiff was not given a cleaning kit. (Id.) Plaintiff sent his third request to Defendant Staggs and his first request to Defendant Dethrage complaining about his living conditions. (Id. at Page ID#7.) Plaintiff asked CO Bright and CO Cantrel to send a HazMat team to clean his cell and to take pictures of his cell to substantiate his complaints about mold and exposed wiring, he was told that someone would come and take care of the mold, but no one came. (Id. at Page ID#7-8.) Plaintiff asked Ms. Bridges for an emergency sick call because he was nauseas and having chest pain, but his request was denied. (Id.)

         On December 28, 2016, Plaintiff spoke to CO Brantly who pretended that he did not know anything about Plaintiff's mold and exposed wire problems, despite being told about the problems numerous times. (Id. at Page ID# 8.) On December 29, 2016, Plaintiff asked for a cleaning kit. (Id.) His request was at first denied but he eventually got a cleaning kit and cleaned some of the mold in his cell, until he got nauseas and had to stop. (Id.) On December 29 and 30, 2016, Plaintiff asked CO Brantly to have a HazMat team come to clean his cell, but his requests were denied. (Id.) On December 30 and 31, 2016, Plaintiff experienced unbearable headaches and chest pains. (Id.) He requested a sick call but, did not see a nurse. (Id.)

         On January 1, 2017, Nurse Matt Smith wrote a report regarding the mold and exposed wiring in Plaintiff's cell and gave the report to Nurse Rick Plonk. (Id.) On January 4, 2017, CO Brantly told Plaintiff that his cell would be cleaned with “mean green, ” but Plaintiff's cell was not cleaned. (Id.) CO Trafton told Plaintiff that Defendant Staggs told CO Trafton that Plaintiff's cell had been cleaned. (Id.) On January 5, 2017, Plaintiff was taken to the outdoor recreational cages and left outside for more than two hours while his cell was supposed to be getting cleaned. (Id.) Plaintiff cell mate told him that the cell was getting cleaned, but it was only cleaned for “two minutes.” (Id. at Page ID# 9.) Plaintiff went back to his cell and found that one spot on the wall had been cleaned, but nothing else, and the spot that was cleaned did not even have mold on it. (Id.) Plaintiff also learned that CO Bright and some other workers, and not a HazMat team, cleaned his cell. (Id.) Plaintiff asked CO Brantly why his cell was not fully cleaned and was told that CO Bright got bleach in his eyes and had to stop. (Id.) Plaintiff asked CO Brantly for an emergency sick call because he “could not feel [his] toes” because he was left outside in the cold wearing his shower shoes. (Id.) Plaintiff alleges that a nurse came by his cell and saw him through a window in his door and said that he was ok. (Id.) Plaintiff alleges that the nurse could not really know whether he was ok just by looking through the window. (Id.) Plaintiff alleges that there is mold on every wall, on his bunk and all over his sheets. (Id.)

         On January 5, 2017, Defendant Staggs, COs Brantly, Villanueva, Bright and Gorska came to his cell to inspect the cleaning. (Id.) Plaintiff told them that his cell was not properly cleaned. (Id.) Defendant Staggs wiped Plaintiff's mattress and bed post with a piece of wet tissues, which she then showed to COs Bright and Brantly. (Id.) The tissue had mold all over it. (Id.) Defendant Staggs appeared to be upset with what she saw, but Plaintiff alleges that Defendant Staggs was just “trying to keep up appearances by doing cell inspections.” (Id.) On January 8, 2017, Captain Kiddy took pictures of the mold and exposed wires in Plaintiff's cell. (Id.) On January 9, 2017, Plaintiff spoke with CO Cantrel and a Nurse and asked them about his headache medicine. (Id.) The Nurse said that “the[y] stopped it” and tried to triage Plaintiff through the door of his cell, to which he objected. (Id. at Page ID#10.) CO Contrel asked Plaintiff if he wanted a cleaning kit to clean the mold, but Plaintiff told CO Contrel that he would not clean the mold because last time he cleaned the mold it made him very sick. (Id.) Plaintiff asked CO Contrel to clean it but CO Contrel said he cannot clean the mold because he is not HazMat certified. (Id.) On January 10, 2017, Nurse Matt Smith came to Plaintiff's cell door and told Plaintiff that Nurse Rick Plunk had spoken to Defendant Wilbanks who indicated that he would have the cells cleaned for mold, mildew and fungi. (Id.)

         On January 13, 2017, Defendant Lindamood came into Plaintiff's pod to do an inspection and “stated that it was not mold and that I have refused to clean my cell.” (Id.) Plaintiff alleges that he cannot clean the mold because he is not HazMat certified and because the mold has been making him sick. (Id.) On January 14, 2017, Plaintiff woke up with a terrible headache and smelling ammonia. (Id.) Plaintiff flipped over his mattress and it was covered with mold. (Id.) Plaintiff told CO Stultz about the mold on his mattress. (Id.) Plaintiff asked CO Trafton for new sheets but she refused to help. (Id.) On January 15, 2017, Plaintiff asked CO Trafton for an emergency sick call because he was having bad migraines and chest pains. (Id.) CO Trafton said she called medical but “they refused to see me.” (Id.) CO Trafton also said she emailed Defendants Staggs and Wilbank. (Id.) Plaintiff eventually got a new sheet, but by the next day it was showing signs of mold. (Id.) On January 16, 2017, CO Stultz refused to allow Plaintiff to take a shower. (Id.) Plaintiff asked to speak to CO Westerman “to get the Captain up here so I can speak with him because of the mold.” (Id.) On January 17 and 19, 2017, Plaintiff asked CO Brantly for new sheets and cloths but, he never got any. (Id.) On January 20, 2017, Plaintiff asked CO Trafton for an emergency sick call, but was denied. (Id.) On January 21, 2017, Plaintiff told Nurse Matt Smith and CO Boney about the mold, he showed them his sheets and told them that he was having migraines and chest pains. (Id.) Nurse Smith said that he would talk to “RN” tonight. (Id.) ...


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