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Green v. State

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

May 21, 2018

MARVIN GREEN, # 432484, Plaintiff,
v.
STATE OF TENNESSEE, et al., Defendants.

          MEMORANDUM

          Aleta A. Trauger United States District Judge.

         Marvin Green, an inmate of the Trousale Turner Correctional Center in Hartsville, Tennessee, filed this pro se, in forma pauperis action against the State of Tennessee, Core Civic, Warden Rusty Washburn, and Correction Care Solutions under 42 U.S.C. § 1983, alleging violations of his civil rights. (Docket No. 1).

         The court notes that the plaintiff is subject to the “three-strikes” provision under 28 U.S.C. § 1915(g) because he has, on at least six prior occasions, filed a civil action or an appeal that was dismissed as frivolous, malicious or for failure to state a claim. (See Docket No. 7 at 2)(citing cases). However, the court previously determined that the plaintiff has established that he is under an imminent danger of serious physical injury and therefore has successfully demonstrated that he falls within the exception to the PLRA's “three-strikes” rule. (Id. at 3-4).

         In the same order, the court took judicial notice of the fact that local jails experienced an outbreak of scabies in 2016 and 2017. (Id. at 3). Scabies “is not an infection, but an infestation. Tiny mites . . . set up shop in the outer layers of human skin. The skin does not take kindly to the invasion. As the mites burrow and lay eggs inside the skin, the infestation leads to relentless itching and an angry rash.” http://www.webmd.com/skin-problems-and-treatments/ss/slideshow-scabies- overview (July 13, 2017). According to the World Health Organization, scabies infestation “is frequently complicated by bacterial infection, leading to the development of skin sores that, in turn, can cause more serious consequences such as septicaemia, heart disease and chronic kidney disease.” http://www.who.int/lymphaticfilariasis/epidemiology/scabies/en/ (March 6, 2018). (Id. at 3).

         I. PLRA Screening Standard

         The 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.

         Under 28 U.S.C. § 1915(e)(2)(B), the court must dismiss any portion of a civil complaint filed in forma pauperis that fails to state a claim upon which relief can be granted, is frivolous, or seeks monetary relief from a defendant who is immune from such relief. Section 1915A similarly requires initial review of any “complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity, ” id. § 1915A(a), and summary dismissal of the complaint on the same grounds as those articulated in § 1915(e)(2)(B). Id. § 1915A(b).

         The Sixth Circuit has confirmed that the dismissal standard articulated by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), “governs dismissals for failure to state a claim under those statutes because the relevant statutory language tracks the language in Rule 12(b)(6).” Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). Thus, to survive scrutiny on initial review, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “[A] district court must (1) view the complaint in the light most favorable to the plaintiff and (2) take all well-pleaded factual allegations as true.” Tackett v. M & G Polymers, USA, LLC, 561F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (citations omitted)).

         Although pro se pleadings are to be held to a less stringent standard than formal pleadings drafted by lawyers, Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991), the courts' “duty to be ‘less stringent' with pro se complaints does not require us to conjure up [unpleaded] allegations.” McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979) (citation omitted).

         II. Section 1983 Standard

         The plaintiff brings his claims pursuant to 42 U.S.C. § 1983. Title 42 U.S.C. § 1983 creates a cause of action against any person who, acting under color of state law, abridges “rights, privileges, or immunities secured by the Constitution and laws . . . .” To state a claim under § 1983, a plaintiff must allege and show two elements: (1) that he was deprived of a right secured by the Constitution or laws of the United States; and (2) that the deprivation was caused by a person acting under color of state law. Tahfs v. Proctor, 316 F.3d 584, 590 (6th Cir. 2003); 42 U.S.C. § 1983.

         III. Alleged Facts

         According to the complaint, while incarcerated at the Trousdale Turner Correctional Center, the plaintiff filed for a “sick call” (an appointment to see the facility physician) on approximately August 7, 2017. On September 7, 2017, the plaintiff received his infirmary pass and told his pod officer that he needed to report to the infirmary. The officer told the plaintiff that he could not leave his cell because the prison was on lock-down. The pill nurse came to the plaintiff's cell to give medication to another inmate, and the plaintiff asked her if he could leave his cell to report to the infirmary. The pill nurse “said no one is going to sick-call because the nursing staff feel[s] unsafe.” (Docket No. 1 at 2).

         On September 12, 2017, at approximately 2:45 a.m., the plaintiff told his pod officer that he needed an emergency sick call. The nurse came to the plaintiff's pod, and the plaintiff stated that he was “itching all over [his] body real bad.” (Id. at 2). The nurse told the plaintiff that his itching was not an emergency and that he would need ...


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