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Kelly v. Kulenovic

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

March 21, 2018

TIMOTHY E. KELLY, Plaintiff,
v.
DINA KULENOVIC et al., Defendants.

          MEMORANDUM

          ALETA A. TRAUGER UNITED STATES DISTRICT JUDGE

         The plaintiff Timothy E. Kelly, proceeding pro se, has filed a civil complaint under §1983 against defendants Dina Kulenovic, Mark Collins, Amanda Hynes and Shawn Phillips. (ECF No. 1.) Before the court is the plaintiff's application to proceed in forma pauperis (ECF No. 3.) In addition, his complaint 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 as a Pauper

         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 required by 28 U.S.C. § 1914(a). Because the plaintiff properly submitted an application to proceed in forma pauperis and because it appears from his submissions that the plaintiff lacks sufficient financial resources from which to pay the full filing fee in advance, the application (ECF No. 3) will be granted.

         However, under § 1915(b), the plaintiff nonetheless 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, the plaintiff will be assessed the full $350 filing fee, to be paid as directed in the accompanying order.

         II. Initial Review

         Pursuant to 28 U.S.C. § 1915(e)(2), the court is required to conduct an initial review of any complaint filed in forma pauperis and to dismiss the complaint if it is facially frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief against a defendant who is immune from such relief. Begola v. Brown, 172 F.3d 47 (Table), 1998 WL 894722, at *1 (6th Cir. Dec. 14, 1998) (citing McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007)). The court must construe a pro se plaintiff's complaint liberally, Boag v. McDaniel, 454 U.S. 364, 365 (1982), and accept the plaintiff's allegations as true unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992).

         A. Factual Allegations

         The plaintiff has a long history of mental illness, dating back to when he was seven years old. He has received in-patient and out-patient treatment at various facilities in Middle Tennessee. (ECF No. 1 at Page ID# 4.) In 2017, while incarcerated at the Riverbend Maximum Security Institution (“RMSI”), the plaintiff began experiencing extreme episodes of schizophrenia which caused him to “blank out” and cut his arms “to the point where I would lose large amounts of blood.” (Id. at Page ID# 2.) The plaintiff alleges that he was referred to defendant Kulenovic, who ignored his condition and, along with defendant Collins, refused to provide necessary treatment as requested by the mental health therapists assigned to Unit 4. (Id.) The plaintiff alleges that he “would flip out lose sense of reality and self-mutilate repeatedly” but instead of being referred to a doctor or institution like the Lois M. DeBerry Special Needs Facility, the plaintiff was placed in four-point restraints and housed in a high security housing unit that required 24-hour lock-down in a cell, or when given recreation, the plaintiff was allowed out for one hour. (Id. at Page ID# 3.)

         The plaintiff alleges that defendant Hynes does not provide adequate care in compliance with TDOC Policy 113.87, which requires that “Level 3 SLU” inmates be provided “a structured environment designed to assist seriously mentally ill inmates in functioning psychosocially and vocationally at the highest possible level within the correctional setting” and requires at least four hours of group therapy daily. (Id.) Plaintiff alleges that defendant Hynes forced him to live in a harsh SuperMax prison when she was well aware that this was an unsuitable placement for the plaintiff. (Id.)

         Defendant Phillips was well aware that mentally ill inmates were not getting the services required by TDOC policy but allowed this situation to occur and did not do anything to change the situation. (Id. at Page ID# 4)

         The plaintiff alleges that he was transferred to the Morgan County Correctional Complex because of the grievances and complaints he filed while housed at RMSI. (Id.)

         The plaintiff alleges claims for violation of his Eighth Amendment rights, retaliation and violation of the Americans with Disabilities Act (ADA). As relief, the plaintiff seeks monetary damages and a transfer to a suitable facility.

         B. Stand ...


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