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Vick v. Core Civic

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

June 11, 2018

JASPER LEE VICK, # 139471, Plaintiff,
v.
CORE CIVIC, et al., Defendants.

          MEMORANDUM OPINION

          WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE

         Jasper Lee Vick, an inmate of the South Central Correctional Facility (SCCF) in Clifton, Tennessee, brings this pro se, in forma pauperis action under 42 U.S.C. § 1983 against Core Civic, Corrections Care of America (CCA), the Tennessee Department of Correction (TDOC), TDOC Commissioner Tony Parker, Core Civic Chief Executive Officer Damon Hinninger, SCCF nurse Westray, Trousdale Turner Correctional Facility (TTCC) food steward Compton, TTCC staff advisor K. Walton, TTCC Chief of Security Cox, TTCC TDOC Liaison Chris Brum, SCCF TDOC Liason Robert Cole Thurman, TTCC Administrative Warden Blair Liebach, SCCF Administrative Warden Cherry Lindamood, TTCC Assistant Warden J. Wardlow, TTCC Assistant Warden of Programs Yolanda Pittman, TTCC Chief of Unit Managers J. Veal, TTCC Unit Manager M. Dethrow, TTCC Inmate Relation Counsel V. Jenkins, TTCC Disciplinary Hearing Officer J. Garner, TTCC Case Manager B. Peterson, TTCC Unit Manager S. Payne, TTCC corrections officer V. McVay, TTCC corrections officer M. Otjens, TTCC corrections officer Cole, TTCC corrections officer Price, SCCF nurse Clenny, SCCF nurse Westray, SCCF Health Administrator J. Garner, SCCF nurse Heather Banks, SCCF corrections officer Daniel Harville, SCCF corrections officer Brandy White, SCCF corrections officer James Bumphus, SCCF corrections officer Wesson, SCCF grievance coordinator Leigh Staggs, SCCF mailroom personnel Lineberry, SCCF corrections officer Sharvon Harris, SCCF nurse Brandi Keeton, SCCF Assistant Warden Danny Dodd, SCCF Assistant Warden of Security Scotty Peeler, SCCF nurse practitioner Kelley, SCCF Captain G. Keeton, SCCF Disciplinary Hearing Officer G. Gonzales, SCCF mailroom personnel H. Nava, and SCCF Disciplinary Hearing Officer B. Pevahouse, alleging violations of the Plaintiff's civil rights. (Doc. No. 1). 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.

         I. Three Strikes Analysis

         The Prison Litigation Reform Act (PLRA) provides the following under § 1915(g) with respect to prisoner-plaintiffs:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

28 U.S.C. § 1915(g). In other words, a prisoner-plaintiff who falls within the scope of § 1915(g) because of three or more previous “strikes” must be pay the entire filing fee at the outset of the case, unless he or she is under imminent danger of serious physical injury. Wilson v. Yaklich, 148 F.3d 596, 603-04 (6th Cir. 1998), cert. denied, 525 U.S. 1139 (1999).

         Vick is subject to the “three-strikes” provision under 28 U.S.C. § 1915(g) because he has, on at least three prior occasions, filed a civil action or an appeal that has been dismissed for failure to state a claim upon which relief could be granted.[1]

         To fall within the statutory exception to the “three-strikes” rule, a prisoner must allege that the threat or prison condition is “real and proximate” and that the danger of serious physical injury exists at the time the complaint is filed. See Rittner v. Kinder, 290 Fed.Appx. 796, 797-98 (6th Cir. 2008)(citation omitted). A prisoner's assertion that he faced danger in the past is insufficient to invoke the exception. Id. Therefore, pursuant to Section 1915(g) of the PLRA, the Plaintiff may pursue the instant action as a pauper only if he is under imminent danger of serious physical injury.

         The complaint alleges that the Plaintiff, an inmate of TDOC, was housed at the TTCC from February 3, 2016, to May 22, 2017, and has been housed at SCCF since May 22, 2017. (Doc. No.1 at 1). The Plaintiff suffers from insulin dependent, or Type 1, diabetes. (Id.) He explains that “a person with Type 1 diabetes must receive insulin from an outside source in order to survive.” (Id. at 20). He continues:

Insulin is typically administered through injections or use of an insulin pump . . . . Failure to administer insulin in a timely manner to a person with Type 1 diabetes can lead to diabetic ketoacidosis. DKA is a potentially fatal condition caused by severely elevated blood glucose levels. Similarly, failure to appropriately monitor blood glucose levels, or delayed access to food after insulin is administered, can lead to drastic drop in blood glucose levels resulting in the diabetic losing consciousness, or going into a coma or dying.

(Id. at 21).

         The complaint alleges that, at both facilities, “due to understaffing and undertraining, reasonable accommodations for persons with insulin-dependent diabetes are either not available or [are] routinely denied, and Constitutional rights or privileges are routinely hindered, impaired or denied the free exercise and enjoyment thereof.” (Id. at 2). The complaint more specifically alleges that all persons with insulin dependent diabetes presently incarcerated at TTCC and SCCF lack access to basic diabetes care, including blood glucose checks and insulin administration coordinated with regular mealtimes and an appropriate diet. (Id. at 3, 20). For example, the complaint alleges that, upon the Plaintiff's arrival to TTCC, he was not seen by a doctor after his arrival for a period of nearly seven months. (Id. at 19). The complaint further alleges that corrections officers at times skip medications call for diabetics if the officers are too busy, which puts the diabetic inmates at risk for serious health complications. (Id. at 30).

         Additionally, the complaint alleges that during periods of lockdowns and at other times of restricted movement, including August 29, 2016 through September 18, 2016 at TTCC, and on June 5, 2017, and July 21-19, 2017 at SCCF, inmates including the Plaintiff must rely on corrections staff to provide access to medical staff for diabetic care. (Id. at 26). During these periods, inmates are given meals in their cells, meals are provided at irregular times, and diabetic inmates are not allowed to check their glucose or receive insulin injections until after their meals; the complaint alleges that “[s]uch unconscionable delays in receiving basic diabetes care is the functional equivalent of receiving no care at all and is the direct result of Defendant CCA's policy or practice of understaffing and undertraining.” (Id.) The complaint alleges that, as a result of being denied access to basic diabetes care, the Plaintiff has experienced numerous diabetes-related complications including degraded vision, diabetic neuropathy, kidney disfunction, heart palpitations, and heart disease. (Id. at 27, 54). The complaint also alleges that, due to the staffing levels and lack of training at both facilities, the delays in receiving basic diabetes care “has recurred several times, with the high likelihood of recurrence in the future.” (Id. at 26).

         The imminent-danger exception is a pleading requirement subject to the ordinary principles of notice pleading. Vandiver v. Prison Health Servs., Inc., 727 F.3d 580, 585 (6th Cir. 2013). Under this standard, the plaintiff must “allege[ ] facts from which a court, informed by its judicial experience and common sense, could draw the reasonable inference that [he] was under an existing danger at the time he filed his complaint.” Id. (internal quotation marks and citation omitted). To support a finding of sufficiently imminent danger, “the threat or prison condition must be real and proximate and the danger of serious physical injury must exist at the time the complaint is filed.” Id. (citing Rittner v. Kinder, 290 Fed.Appx. 796, 797 (6th Cir. 2008)). “Thus a prisoner's assertion that he or she faced danger in the past is insufficient to invoke the exception.” Id. (citations omitted). In an unpublished opinion, the Sixth Circuit has held that “[f]ailure to receive adequate treatment for potentially life-threatening illnesses . . . clearly constitutes ‘imminent danger' under the [PLRA].” Vandiver v. Vasbinder, 416 Fed.Appx. 560, 562-63 (6th Cir. 2011) (citing Ibrahim v. District of Columbia, 463 F.3d 3, 6-7 (D.C. Cir. 2006) (holding that “failure to provide adequate treatment for Hepatitis C, a chronic and potentially fatal disease, constitutes ‘imminent danger' ”)). In a later, published opinion in a case filed by the same plaintiff, the Court reaffirmed that “a plaintiff who alleges a danger of serious harm due to a failure to treat a chronic illness or condition satisfies the imminent-danger exception under § 1915(g).” Vandiver v. Prison Health Servs., Inc., 727 F.3d 580, 587 (6th Cir. 2013). Other circuits have similarly held that failure to treat “serious medical needs” may satisfy the imminent-danger requirement. See, e.g., Partin v. Harmon, 113 Fed.Appx. 717, 718 (8th Cir. 2004) (finding that plaintiff's allegations were sufficient to meet imminent-danger exception where he alleged that he was denied treatment for treatment for tuberculosis, prostate cancer, and colon cancer, deprived of prosthetic support boots, denied medical care for an injured knee and ankle, and forced to work against medical restrictions).

         Some courts have rejected a requirement that the district courts scrutinize the seriousness of the continuing injury before granting a three-striker leave to proceed in forma pauperis. For example, in Ciarpaglini v. Saini, 352 F.3d 328 (7th Cir. 2003), the plaintiff alleged imminent danger resulting from the defendants' wrongful discontinuation of his medication for attention deficit hyperactivity disorder and panic disorder. The court rejected the defendant's assertion that the plaintiff's claims were “not serious enough, ” stating:

[Section] 1915(g) is not a vehicle for determining the merits of a claim. To follow the [defendant's] logic, a district court would not just need to determine whether a prisoner is alleging some type of ongoing or imminent harm. It would also need to fine-tune what is “serious enough” to qualify for the exception. Is being denied heart medication? What about a cholesterol-lowering drug? How frequently do beatings need to occur before they are serious? This would result in a complicated set of rules about what conditions are serious enough, all for a simple statutory provision governing when a prisoner must pay the filing fee for his claim. This is not required, and so we find that the district court erred in concluding that [the plaintiff's] complaint didn't meet the imminent danger exception.

Id. at 331. Accord Chavis v. Chappius, 618 F.3d 162, 169 (2d Cir. 2010) (“[A]lthough the feared physical injury must be ‘serious, ' ‘we should not make an overly detailed inquiry into whether the allegations qualify for the exception, ' because § 1915(g) ‘concerns only a threshold procedural question'. . . .” (quoting Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007))).

         Upon carefully reviewing the complaint and attachments thereto, the Court finds that the complaint adequately alleges facts supporting an inference that Plaintiff is in imminent danger of serious physical injury due to the inconsistent or inadequate medical care provided to him for his Type 1 diabetes at his current place of incarceration for purposes of the threshold inquiry required by 28 U.S.C. § 1915(g). See Vandiver v. Prison Health Srvs., 727 F.3d 580, 587-88 (6th Cir. 2013)(holding that prisoner alleged imminent danger of serious physical injury sufficient to satisfy exception to three strike rule where prisoner alleged that defendants continued to deny approved specialty care referral visits for prisoner's chronic illnesses of diabetes and Hepatitis C, he faced risk of coma or death resulting from the denial of physician prescribed special shoes, a transport vehicle, a special diet and medication, and already had undergone partial amputation of his feet). Having satisfied the exception to the three strikes rule, and demonstrating that he lacks sufficient financial resources to pay the filing fee upon the filing of his complaint, the Plaintiff will be permitted to proceed in forma pauperis.

         II. PLRA Screening Standard

         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).

         III. Analysis of Claims

         A. ADA and Rehabilitation Act claims

         The complaint alleges claims under Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131, et seq., against CCA and under Section 504 of the Rehabilitation Act of 1973 (Rehabilitation Act) against TDOC.

         The ADA prohibits public entities from discriminating against a qualified individual with a disability on account of that disability in the operation of services, programs, or activities. 42 U.S.C. § 12131(1); Pa. Dep't of Corr. v. Yeskey, 524 U.S. 206, 210 (1998). The ADA is applicable to state and local government entities, including prisons and county jail facilities. See Yeskey, 524 U.S. at 210 (holding that the term “public entity” includes prison facilities); Tucker v. Tenn., 539 F.3d 526, 529 (6th Cir. 2008). Title II's implementing regulations provide that “[a] public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the services, program, or activity.” 28 C.F.R. § 35.130(b)(7).

         To establish a prima facie case under the ADA, a plaintiff must show that: (1) he has a disability; (2) he is otherwise qualified; and (3) he is being excluded from participating in, being denied the benefits of, or being subjected to discrimination under the program solely because of his disability. Anderson v. City of Blue Ash, 798 F.3d 338, 357 (6th Cir. 2015). Title II of the ADA authorizes suits by private citizens for money damages against public entities that violate § 12132. United States v. Ga., 546 U.S. 151, 160 (2006)(holding that Title II of the ADA validly abrogated state sovereign immunity insofar as it created a private cause of action for damages against the States for conduct that actually violates the Fourteenth Amendment).

         The proper defendant to a suit under Title II of the ADA is the public entity or an official acting his or her official capacity. Everson v. Leis, 556 F.3d 484, 501 n.7 (6th Cir. 2009). “Title II of the ADA does not, however, provide for suit against a public official in his individual capacity.” Everson, 556 F.3d at 501 n.7; see also Williams v. McLemore, 247 Fed.Appx. 1, 8 (6th Cir. 2007) (“[T]he ADA does not provide for personal liability for defendants sued in their individual capacities. . . . We have held repeatedly that the ADA does not permit public employees or supervisors to be sued in their individual capacities.”).

         Here, the complaint alleges that the Plaintiff is a qualified individual with a disability pursuant to the ADA and Rehabilitation Act, that he is qualified to receive Defendants' services, and that Defendants “have intentionally with deliberate indifference discrimated [sic] against Plaintiff and limited, segregated, excluded, treated and classified Plaintiff in a way which adversely affects his opprotunities [sic] and denies him receipt of services and benefits of defendant entities because of his disability.” (Doc. No. 1 at 28-29). The complaint further alleges that the Plaintiff requires accommodations to the Defendants' programs, services, and activities in order to manage his diabetes. (Id. at 28). According to the complaint, the Plaintiff sought reasonable accommodations, including access to blood glucose checks and insulin administration according to the schedule set by his physician, regular mealtimes, the opportunity to exercise, and access to medical treatment and equipment, and Defendants denied the Plaintiff's requests. (Id. at 28-29).

         As a private entity, however, Defendant CCA cannot be liable for disability discrimination under Title II of the ADA. See Edison v. Douberly, 604 F.3d 1307, 1310 (11th Cir. 2010)(“A private contractor does not . . . become liable under Title II merely by contracting with the State to provide governmental services, essential or otherwise.”); Collazo v. Corr. Corp. of Am., No. 4:11CV1424, 2011 WL 6012425, at *3 (N.D. Ohio Nov. 30, 2011)(“A private prison does not qualify as a department or agency of a state or local government and therefore is not a ‘public entity' under the statute.”); Lee v. Corr. Corp. of Am./Corr. Treatment Facility, 61 F.Supp.3d 139, 143 (D.D.C. 2014)(“As a private prison company, defendant is not covered by Title II of the ADA.”); Goodman v. The Robert A. Deyton Det. Facility, No. 1:15-CV-1724, 2015 WL 5480046, at *4 (N.D.Ga. Sept. 15, 2015), appeal dismissed (Dec. 8, 2015) (dismissing inmate's ADA and Rehabilitation Act claims against federal detention center run by a private corporation). Accordingly, the Plaintiff cannot bring a claim against CCA under Title II, and the claim will be dismissed.

         Section 504 of the Rehabilitation Act provides that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). To establish a claim under the Rehabilitation Act, a plaintiff must prove (1) that he is a “handicapped person” under the Act; (2) that he is “otherwise qualified”; (3) that he is being excluded from participation in, being denied the benefits of, or being subjected to discrimination under the program solely because of his handicap; and (4) that the program or activity receives federal funds. Burns v. City of Columbus, 91 F.3d 836, 840-41 (6th Cir.1996) (citing Doherty v. S. Coll. of Optometry, 862 F.2d 570, 573 (6th Cir.1988)). If a plaintiff establishes a prima facie case under the Rehabilitation Act, the burden shifts to the defendant to show that the defendant's decision was reasonable under the circumstances. Id.

         Generally speaking, because both the Rehabilitation Act and the ADA prohibit discrimination on the basis of disability, the jurisprudence regarding both statutory schemes has developed in tandem, and the claims are frequently considered as coextensive with each other. See, e.g., Thompson v. Williamson Cnty., 219 F.3d 555, 557 (6th Cir. 2000) (given the similarity between the ADA and the RA, claims brought under both statutes can be analyzed together); Andrews v. Ohio, 104 F.3d 803, 807 (6th Cir.1997) (“Because the standards under both of the acts are largely the same, cases construing one statute are instructive in construing the other.”). There are several important distinctions between the two statutes, however. First, Rehabilitation Act claims against the state are not barred by the Eleventh Amendment. Nihiser v. Ohio, 269 F.3d 626, 628 (6th Cir. 2001). And second, the “solely because of” language in the Rehabilitation Act imposes a higher burden of proof upon the plaintiff. Lewis v. Humboldt Acquisition Corp., 681 F.3d 312, 314-15 (6th Cir. 2012).

         Here, the complaint alleges that TDOC, a recipient of federal funds for the operation of the state Department of Correction (Doc. No. 1 at 5), “intentionally with deliberate indifference discrimated [sic] against Plaintiff and limited, segregated, excluded, treated and classified Plaintiff in a way which adversely affects his opprotunities [sic] and denies him receipt of services and benefits of defendant entities because of his disability.” (Doc. No. 1 at 28-29). The complaint does not, however, explain in what way TDOC has discriminated against the Plaintiff solely because of his diabetes; neither does the complaint identify what opportunities, services, and benefits TDOC is denying the Plaintiff because of his diabetes. To the extent that the complaint alleges that diabetic inmates are placed in the SCCF Refuse Cell Assignment (RCA) pod where they are not provided the benefits of daily recreation, daily showers, jobs, and full commissary privileges, the complaint acknowledges that inmates other than diabetic inmates are placed in RCA pods, such as “inmates requesting PC and inmates who has [sic] obvious serious mental health needs and need immediate serious medical care and attention . . . .” (Doc. No. 1 at 51). Thus, because non-diabetic inmates in the RCA pod are subject to the same limited benefits as diabetic inmates, the complaint fails to show that the Plaintiff and other diabetes inmates are denied these benefits solely because of their disability.

         The complaint primarily focuses on TDOC's alleged failure to accommodate the Plaintiff's disability by providing access to blood glucose checks and insulin administration according to the schedule set by his physician, regular mealtimes, the opportunity to exercise, and access to medical treatment and equipment. (Id. at 28-29). Still, the Plaintiff has not sufficiently alleged that he was excluded from participation in a program or activity, or otherwise treated differently, because of his disability. To be sure, the complaint does recite this second element, almost verbatim. (Doc. No. 1 at 28-29). However, when it comes to alleging facts to support this legal conclusion, the Plaintiff focuses on the Defendants' failure to provide ...


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