United States District Court, M.D. Tennessee, Columbia Division
BURNACE R. McDONALD, JR., Plaintiff,
HICKMAN COUNTY JAIL, et al., Defendants.
REPORT AND RECOMMENDATION
JEFFERY S. FRENSLEY UNITED STATES MAGISTRATE JUDGE
Introduction and Background
matter is before the Court upon Defendants' “Motion
to Dismiss or, in the Alternative, Motion for Summary
Judgment.” Docket No. 10. Along with their Motion,
Defendants have contemporaneously filed a “Brief in
Support” of their Motion (Docket No. 11), a
“Concise Statement of Undisputed Facts” (Docket
No. 10-1), and the Declarations of Captain Barry McNabb
(Docket No. 10-2) and Lorie Fuller Davis (Docket No. 10-3).
Because the undersigned will consider Defendants'
submitted materials, the undersigned will construe
Defendants' Motion as a Motion for Summary Judgment.
has not responded to either the instant Motion or to the
Concise Statement of Undisputed Material Facts, nor has
Plaintiff filed his own Statement of Undisputed Material
Facts. Plaintiff filed this pro se, in forma pauperis action
pursuant to 42 U.S.C. § 1983, alleging, inter
alia, that Defendants violated his Eighth Amendment
rights by refusing to give him his mental health medications
and by charging him for a blood test. Docket No. 1.
Specifically, Plaintiff avers that Defendant Fuller ordered a
blood test for him, the results of which she reported showed
that Plaintiff did not need mental health medication, so she
refused to give it to him. Id. Plaintiff argues that
he is a veteran who is on full disability due to depression,
anxiety, and PTSD, and that doctors have ordered that he
receive mental health medication. Id. Plaintiff sues
Defendant Fuller solely in her official capacity as Nurse of
the Hickman County Jail. Id. Plaintiff argues that
Defendant Fuller “was incompetent [and] has since been
fired by the Jail.” Id. Plaintiff seeks
“proper medical care, ” reimbursement for the
costs of the blood test that he was required to pay, and at
least $150, 000 for pain and suffering (with the actual
“amount to be determined” to “exceed
originally sued Southern Health Partners, Nurse Fuller, and
the Hickman County Jail. See Docket No. 1. Judge
Crenshaw, when conducting his initial frivolity review
dismissed Plaintiff's claims against the Hickman County
Jail, and the Jail was terminated as a Defendant in this
action. Docket Nos. 7, 8. Accordingly, the only remaining
Defendants in this action are Southern Health Partners and
Nurse Fuller. In his Memorandum and Order, Judge Crenshaw
further held that Plaintiff could not pursue any claims
against Southern Health Partners or Nurse Fuller that
occurred on or before July 6, 2016, as those claims would
fall outside the applicable statute of limitations period.
Id. Thus, the Court will consider only
Plaintiff's claims that allegedly occurred after July 6,
2016. Finally, Judge Crenshaw additionally denied
Plaintiff's request for injunctive relief as moot, since
he is no longer incarcerated. Id. Therefore, the
only relief requested that is presently before the Court is
reimbursement to Plaintiff of the cost of his blood test and
monetary relief for pain and suffering.
filed the instant Motion and supporting materials arguing:
(1) Plaintiff's claim against Defendant Fuller is
time-barred by the applicable statute of limitations; (2)
Plaintiff has failed to identify an official Southern Health
Partners policy or custom that caused him constitutional
injury, and therefore cannot maintain his claim against it as
there is no respondeat superior liability under §1983;
and (3) Plaintiff has failed to exhaust his administrative
remedies as required under the Prison Litigation Reform Act.
Docket Nos. 10, 11.
reasons set forth below, the undersigned recommends that
Defendants' Motion for Summary Judgment (Docket No. 10)
be GRANTED, and that this action be DISMISSED WITH PREJUDICE.
Declaration of Captain Barry McNabb
Barry McNabb is the Jail Administrator of the Hickman County
Jail. Docket No. 10-2 (“McNabb Dec.”), ¶ 1.
As the Jail Administrator, Captain McNabb carries out the
policies and procedures for the Hickman County Jail that have
been established by Sheriff Randal Ward. Id., ¶
2. Sheriff Ward has delegated the day-to-day duties of
operations of the Hickman County Jail to Captain McNabb.
was booked into the Hickman County Jail most recently on
September 14, 2015, and was released on June 30, 2017.
Id., ¶ 4.
Hickman County Jail has a grievance policy for inmates to
express complaints with the conditions of their confinement.
Id., ¶ 5. Inmates with a grievance may submit a
grievance electronically on a kiosk machine, which is located
in each housing pod. Id. The grievance must be
submitted within seven (7) days of the occurrence.
Id. The grievances are reviewed by a grievance
officer/board and a response is sent to the inmate no later
than fifteen (15) days of receipt of the grievance.
Id. If an inmate is dissatisfied with the response,
they may appeal to the Jail Administrator within seven (7)
days of the decision. Id. The Jail Administrator has
fifteen (15) days to respond to the appeal. Id. Once
the Jail Administrator makes a determination as to a
resolution of the Plaintiff's appeal, he/she notifies the
inmate of his/her decision. Id.
submitted no grievances and no appeals of grievances through
the Jail kiosk system between the dates of July 6, 2016 and
June 30, 2017. Id., ¶ 7.
Declaration of Lorie Fuller Davis
Fuller Davis was employed by Southern Health Partners as a
nurse at the Hickman County Jail until December 9, 2015.
Docket No. 10-3 (“Fuller Davis Dec.”), ¶ 1.
Lorie Fuller Davis has not worked at the Hickman County Jail
or provided medical care to Plaintiff at any time since
December 5, 2015. Id., ¶ 3.
Law and Analysis
Local Rules 7.01(b) and 56.01(c) and (g)
Rule 7.01(b) states, in pertinent part:
b. Response. Each party opposing a motion
shall serve and file a response, memorandum, affidavits and
other responsive material not later than fourteen (14) days
after service of the motion, except, that in cases of a
motion for summary judgment, that time shall be twenty-one
(21) days after the service of the motion, unless otherwise
ordered by the Court. Failure to file a timely response shall
indicate that there is no opposition to the motion.
filed the instant Motion on November 3, 2017. Docket No. 10.
Plaintiff has failed to respond to Defendants' Motion.
with respect to Motions for Summary Judgment specifically,
Local Rules 56.01(c) and (g) state, in pertinent part:
c. Response to Statement of Facts. Any party
opposing the motion for summary judgment must respond to each
fact set forth by the movant by either (i) agreeing that the
fact is undisputed; (ii) agreeing that the fact is undisputed
for the purpose of ruling on the motion for summary judgment
only; or (iii) demonstrating that the fact is disputed. ...