United States District Court, W.D. Tennessee, Eastern Division
ROBERT W. MAHER, JR. Plaintiff,
STATE OF TENNESSEE, et. al., Defendants.
ORDER PARTIALLY DISMISSING THE COMPLAINT AND
DIRECTING THAT PROCESS BE ISSUED AND SERVED ON THE REMAINING
D. TODD, UNITED STATES DISTRICT JUDGE
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.
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.)
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
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.)
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.)
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.)
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.
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.
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.
Screening and Standard
Court is required to screen prisoner complaints and to
dismiss any complaint, or any ...