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Daily v. Cca-Wcfa Whiteville Transport Officers

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

April 2, 2018

LEVAR FIVE DAILY, Plaintiff,
v.
CCA-WCFA WHITEVILLE TRANSPORT OFFICERS ., Defendants.

          MEMORANDUM OPINION

          WILLIAM L. CAMPBELL, JR., UNITED STATES DISTRICT JUDGE.

         Plaintiff LeVar Five Daily, proceeding pro se, has filed a complaint against Defendants CCA-WCFA Whiteville Transport Officers, Sergeant [F/N/U] Brown and Correctional Officer [F/N/U] Caldwell. (Doc. No. 1.) Plaintiff also filed a supplement to the complaint. (Doc. No. 4.) Before the court is the plaintiff's application to proceed in forma pauperis. (Doc. No. 2.) In addition, his complaint and supplement to the complaint are 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 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 it appears from his submissions that Plaintiff lacks sufficient financial resources from which to pay the full filing fee in advance, the application (Doc. No. 2) will be granted.[1]

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

         II. Initial Review of the Complaint

         A. Factual Allegations

         In his complaint, the plaintiff alleges that on October 2, 2017, he was being transferred from CCA-WCFA at Whiteville to the Lois M. DeBerry Special Needs Facility (“LDSNF”) in Nashville. (Doc. No. 1 at Page ID# 7.) Plaintiff alleges that he traveled this route frequently because of pending court cases and that LDNSF provides housing for transit inmates with pending charges. (Id.) Plaintiff alleges that Defendant Caldwell was driving and Defendant Brown was riding in the front passenger seat. (Id. at Page ID# 4, 7.) Plaintiff alleges that as was usual for this route, Defendant Caldwell was speeding, driving 80 to 90 mph. (Id. at Page ID# 7.) Plaintiff also alleges that another transport van was following the van in which he was riding. (Id.) Defendant Caldwell was driving with music blasting from his cell phone which was attached to the transport van speakers via a cord plugged into an auxiliary port. (Id.) At one point, Defendant Caldwell was fumbling with his phone-to scroll through a music play list or to text someone-and looked down at his phone. (Id.) By the time he looked up, Defendant Caldwell was heading right into a semi-truck at 85 to 90 mph. (Id.) Defendant Caldwell slammed on the brakes, lost control of the van for a few seconds, and then regained control of the van. (Id.) However, by the time Defendant Caldwell regained control of the van, Plaintiff had been bounced around the steel cage, with his head and neck striking the cage first, and then had to absorb the force of the three other inmates in the van slamming into him. (Id.) At the time of the incident, Plaintiff was shackled and handcuffed with a belly chain. (Id. at Page ID# 4.)

         Plaintiff alleges that the initial contact between his head and the steel cage “knocked him out.” (Id. at Page ID # 8.) When he came to he felt pain in his head and neck. (Id.) By the time the van made it to the “Hub, ” Plaintiff was experiencing severe back and neck pain. (Id.)[2]Plaintiff was “immediately seen by medical and the Doctor.” (Id.) Plaintiff was prescribed a muscle relaxer and a pain pill and was given a steroid shot in his back. (Id.) Unfortunately, because Plaintiff has Type 2 diabetes, the shot nearly sent him into a diabetic coma. Plaintiff alleges that it has taken months to get his blood sugar under control and that he's still dealing with back and neck pain. (Id.) Plaintiff alleges that the Doctor prescribed him an x-ray and an MRI in October, but he has yet to have either imagining study done. (Id.) Plaintiff has been taken on and off different prescription medications as a result of his injuries and to relieve his pain. (Id.) Nevertheless, he is still experiencing pain and he alleges that he is “getting [the] run around[ ] [a]bout my x-ray, MRI, meds and medical att[e]n[tion] for these issues, still no help and no concern for either.” (Id.)

         In the supplement to the complaint, Plaintiff alleges that he continues to have difficulty getting medical attention for his injuries and pain and that he still has not obtained an x-ray or MRI. (Doc. No. 4 at Page ID#16.) Additionally, medical personnel have told Plaintiff that they do not have orders to obtain an x-ray or MRI of Plaintiff's back and neck, when, Plaintiff alleges, they do have the necessary orders. (Id.)

         Plaintiff also notes that Defendant Caldwell and an inmate who was being transported with Plaintiff almost had a physical altercation after the incident when the inmate complained that Defendant Caldwell should not have been tampering with his cell phone. (Doc. No. 4 at Page ID# 17.)

         As relief, the plaintiff seeks immediate release form custody and money damages. (Id. at Page ID# 5.)

         B. Standard of Review

         If an action is filed in forma pauperis, “the court shall dismiss the case at any time if the court determines that . . . the action . . . fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). In assessing whether the complaint in this case states a claim on which relief may be granted, the court applies the standards under Rule 12(b)(6) of the Federal Rules of Civil Procedure, as construed by Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). See Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding that “the dismissal standard articulated in Iqbal and Twombly governs dismissals for failure to state a claim under [§ 1915(e)(2)(B)(ii)] because the relevant statutory language tracks the language in Rule 12(b)(6)”). “Accepting all well-pleaded allegations in the complaint as true, the Court ‘consider[s] the factual allegations in [the] complaint to determine if they plausibly suggest an entitlement to relief.'” Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (quoting Iqbal, 556 U.S. at 681) (alteration in original). “[P]leadings that . . . are no more than conclusions[] are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at 679; see also Twombly, 550 ...


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