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Maher v. State

United States District Court, W.D. Tennessee, Eastern Division

March 20, 2018

ROBERT W. MAHER, JR. Plaintiff,
v.
STATE OF TENNESSEE, et. al., Defendants.

          ORDER PARTIALLY DISMISSING THE COMPLAINT AND DIRECTING THAT PROCESS BE ISSUED AND SERVED ON THE REMAINING DEFENDANTS

          JAMES D. TODD, UNITED STATES DISTRICT JUDGE

         On December 7, 2016, Plaintiff Robert W. Maher, Jr. (Maher), who is incarcerated at the Hardeman County Correctional Facility (HCCF) in Whiteville, Tennessee, filed a pro se complaint pursuant to 42 U.S.C. § 1983 accompanied by a motion to proceed in forma pauperis. (ECF Nos. 1 & 2.) In an order issued December 8, 2016, the Court granted leave to proceed in forma pauperis and assessed the civil filing fee pursuant to the Prison Litigation Reform Act (PLRA), 28 U.S.C. §§ 1915(a)-(b). (ECF No. 4.) The Clerk shall record the Defendants as the State of Tennessee, Dr. Bernhard Dietz, HCCF Health Services Administrator John Borden, HCCF Warden Grady Perry, and CoreCivic.

         I. The Complaint

         Maher alleges that he has needed surgery on his left leg, ankle, right arm, and shoulder since he arrived at HCCF on March 25, 2016, where he has been treated by Defendant Dietz beginning on April 8, 2016. (ECF No. 1 at PageID 3; see also ECF Nos. 5 & 6 (Grievances).) Maher contends that he has very little movement in his right shoulder and arm. (ECF No. 1 at PageID 3.) He states that he is restricted to no lifting, no climbing up and down steps, and no activities with his right arm and shoulder. (Id.) Maher alleges the Defendant Dietz told him that his injuries will not be repaired unless they are life threatening even though Maher is using a cane, can only walk on flat surfaces, cannot do any exercises, and is designated as Class C medical, which Maher alleges is the “worst you can be. . . .” (Id. at PageID 4.) Maher has written ten grievances, but he alleges he has received no help from the State of Tennessee, HCCF, or Defendants Borden, Dietz and Perry. (Id. at PageID 5.)

         Maher alleges that he has seen several nurses over seven months, but they have told him they cannot do more without Defendant Dietz taking action. (Id. at PageID 7.) He contends that he is now seeing Dr. Kirk, who is not a party to this complaint, about his mental health because the lack of medical treatment is leaving him physically and mentally drained. (Id.)

         Maher alleges the deliberate indifference to his injuries is a violation of his Eighth Amendment rights and the Americans with Disabilities Act (ADA) because he was on 100% disability for the previous ten years. (Id. at PageID 8.)

         Maher contends that he was told by his orthopedic specialist, Dr. Ramashad, that he needed surgeries to repair the injuries; however, Defendant Dietz stated that Maher did not need the surgeries at that time. (Id. at PageID 9.) Maher argues that Dietz, a general practioner, is not qualified to make that determination; has only provided Maher with a brace to ease the pain and discomfort; and will not agree to the surgeries because the injuries did not occur at the HCCF. (Id.) Maher was given a cane because of damage to his knee and ankle and a brace for his arm; however, he contends the cane and brace were merely temporary fixes. (Id. at PageID 10.) Mather alleges he also was promised an ankle brace; however, Defendant Dietz has told him that the cane would suffice. (ECF Nos. 16 & 21.) Maher contends that if surgery was done to remove shrapnel he could walk normally without the use of a cane. (Id. at PageID 11.) Maher also contends that he has carpal tunnel syndrome and a torn rotator cuff in his right arm and shoulder that need to be repaired in order for him to have 100% use of the arm. (Id. at PageID 11-12.)

         Maher seeks money damages for pain and suffering and for the Court to order the Defendants to provide him with the surgeries that he needs. (Id. at 13.)

         Since the filing of the complaint, Maher has filed numerous letters and motions continuing to assert that Defendants Dietz and Borden adamantly refuse to provide him with necessary medical care. He states that he met with both Dietz and Borden to discuss his medical problems and that both are well aware that his condition continues to deterioriate and his pain continues to worsen. (ECF Nos. 12, 16 & 21.) Notwithstanding that knowledge, they still have indicated to him they have no intention of sending him for the surgeries he seeks. Several of the motions and letters include additional exhibits such as medical records, sick call requests, and grievance documents. To the extent these various motions and letters seek to add allegations and attached exhibits, they are GRANTED.

         In one of Maher's motions, he asks the Court to simply order that he undergo the surgeries he seeks. (ECF No. 22.) That motion is DENIED, as it has not yet been determined that he is entitled to any relief in this case. In addition, several of Maher's motions ask for copies of all documents sent by the Court to the Defendants or for copies of any evidence the Defendants have provided. However, no Defendant has yet been served; therefore, the Court has sent no documents to the Defendants and the Defendants have submitted no evidence. Maher also asks for the Court to send him copies of his medical records. However, the only medical records that have been filed with the Court are those few that Maher himself already submitted. Any other medical records Maher needs must be sought from the Defendants themselves through discovery, after they have been served with process and have responded to the complaint. Accordingly, all of the motions asking that Maher be provided with various types of documents are DENIED.

         In three of Maher's motions, he states that he seeks relief under Federal Rule of Civil Procedure 60(b). (ECF Nos. 29, 31 & 40.) However, Rule 60(b) governs motions for relief from an order of the Court or a judgment of the Court. No. judgment has been entered in this case and there were no orders ruling on any substantive issues when Maher filed his motions. Therefore, those motions are also DENIED.

         II. Analysis

         A. Screening and Standard

         The Court is required to screen prisoner complaints and to dismiss any complaint, or any ...


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