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Kelly v. Kulenovic

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

February 12, 2019

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

          Honorable Aleta A. Trauger, District Judge.

          REPORT AND RECOMMENDATION

          ALISTAIR E. NEWBERN UNITED STATES MAGISTRATE JUDGE.

         This prisoner civil rights action has been referred to the Magistrate Judge to dispose or recommend disposition of pretrial motions under 28 U.S.C. § 636(b)(1)(A) and (B). (Doc. No. 7.) Now pending is Defendant Shawn Phillips's motion to dismiss (Doc. No. 20), to which pro se Plaintiff Timothy E. Kelly has responded in opposition (Doc. No. 26). For the following reasons, the Magistrate Judge RECOMMENDS that Phillips's motion to dismiss be GRANTED and that Kelly's claims against him be DISMISSED WITH PREJUDICE.

         I. Background

         A. Kelly's Allegations[1]

         Kelly's “long history of mental illness” began when he was seven years old. (Doc. No. 1, PageID# 4.) He has received treatment from various medical providers, including the Mental Health Cooperative and Vanderbilt University Medical Center. (Id.) In 2017, when Kelly was incarcerated at the Riverbend Maximum Security Institution (RMSI), he “experience[ed] extreme episodes of schizophrenia” in which he would “blank out, ” “lose [his sense] of reality, ” and “self mutilate repeatedly” by cutting his left and right arms until he was bleeding heavily. (Id. at PageID# 2.) Instead of being referred to a doctor or transferred to an “institution like [the] Lois M. De[B]erry Special Needs Facility, ” Kelly was “placed in four[-]point restraints.” (Id.) Kelly alleges that Defendant Dina Kulenovic, a mental health supervisor, ignored his condition and that Defendant Mark Collins, also a mental health supervisor, refused to comply with the recommendations offered by the mental health therapist assigned to Kelly's unit and thereby denied Kelly the “correct care.”[2] (Id.)

         In response to the grievances that he filed regarding his confinement at RMSI, Kelly was transferred to the Morgan County Correctional Complex (MCCC) in August 2017. (Id. at PageID# 4.) He states that, there, he experienced “harsh supermax confinement” consisting of a twenty-four-hour lock down inside his cell or twenty-three hours of lock down and one hour of recreation. (Id. at PageID# 3.) He further alleges that “[m]ental health employee[s] [did] not provide adequate care” in accordance with MCCC “policy and regulations.” (Id.) Specifically, Kelly states that, under Policy 113.87, the Level 3 Supportive Living Unit (SLU) where Kelly was housed must “provide a structured environment designed to assist seriously mentally ill inmates in functioning psychosocially and vocationally at the highest possible level within the correctional setting . . . .” (Id.) Kelly states that such an environment would include four hours each day of group therapy. (Id.) He alleges that the practices of his unit “are not even close to meeting” that policy and that inmates occasionally do not receive any group therapy. (Id.) Kelly states that Defendant Amanda Hynes forced Kelly to live in such conditions despite her awareness that they “were not suitable for [him, ]” and that Defendant Shawn Phillips, then the warden of MCCC, “allow[ed] such a situation to take place even thou[gh he was] made aware [of it], several times . . . .” (Id. at PageID# 3-4.)

         B. Procedural History

         Kelly filed this action on December 12, 2017, while he was incarcerated at the MCCC, alleging that Defendants' actions violated the Eighth Amendment and the Americans with Disabilities Act (ADA) and that his transfer to the MCCC was retaliatory. (Id. at PageID# 1, 4, 5.) Kelly seeks $500, 000.00 in damages and transfer to a facility “suitable for treating [his] needs . . . .”[3] (Id. at PageID# 6.)

         In a March 21, 2018 order (Doc. No. 7) and accompanying memorandum (Doc. No. 6), the Court granted Kelly's application to proceed in forma pauperis (Doc. No. 3) and conducted the screening of his complaint required by the Prison Litigation Reform Act, 28 U.S.C. § 1915A. The Court found that Kelly had stated claims for deliberate indifference to his medical needs against all defendants but dismissed his retaliation and ADA claims. (Doc. No. 6, PageID# 34; Doc. No. 7, PageID# 42.) The Court's screening order did not address a March 1, 2018 filing in which Kelly notified the Court that he had been transferred to the Northeast Correctional Complex (NECC) in Mountain City, Tennessee, and purported to add to his complaint a “factual argument” concerning his confinement at the RMSI. (Doc. No. 5, PageID# 23-24.) He also sought to add to his request for relief that the defendants have their “license[s] revoked.” (Id. at PageID# 25.) Kelly made two additional filings, neither docketed as a motion, in which he sought to supplement the factual allegations of his complaint or clarify the relief he is seeking in this lawsuit. (Doc. Nos. 9, 17.) The Court addressed those filings in its January 28, 2019 order. (Doc. No. 28.)

         After receiving an extension of time to respond to Kelly's complaint (Doc. No. 16), Phillips, who is now the warden at the Northwest Correctional Complex (NWCC), [4] timely filed a motion to dismiss (Doc. No. 20) and a supporting memorandum (Doc. No. 21). Phillips argues that, to the extent Kelly seeks to hold him liable for the actions of his former subordinates at the MCCC, Kelly has failed to allege that Phillips had sufficient involvement in violating Kelly's rights. (Doc. No. 21, PageID# 102.) Phillips argues in the alternative that Kelly was placed in solitary confinement in the SLU in an effort to “address [his] illness” and, therefore, that Phillips did not disregard Kelly's medical needs. (Id. at PageID# 102, 105.) Finally, Phillips argues that, even if Kelly was deprived of group therapy in violation of an MCCC policy, that denial does not amount to a constitutional violation given that Kelly has not alleged a complete disregard of his condition. (Id. at PageID# 106.)

         Kelly did not timely respond to Phillips's motion. On September 18, 2018, Kelly filed a “Motion to Include as Evidence” a notarized document dated March 28, 2017, and addressed to Defendant Kulenovic, in which Kelly complained that he was receiving inadequate medical care at RMSI. (Doc. No. 24, PageID# 113-15.) Kelly's motion also stated that he had been transferred to the NWCC, where he was not able to send out or receive legal mail. (Id. at PageID# 113.) On October 4, 2018, the Court denied Kelly's motion, explaining that the document he sought to introduce into evidence was not relevant to any motion before the Court. (Doc. No. 25, PageID# 125.) The Court also extended the deadline for Kelly to respond to Phillips's motion until October 26, 2018, noting that the motion had been sent to the NECC rather than the NWCC, where Kelly is now housed. (Id. at PageID# 124-25.)

         Kelly's response to Phillips's motion to dismiss, postmarked October 25, 2018, was docketed on November 5, 2018. (Doc. No. 26, PageID# 130.) In it, Kelly does not respond directly to any of Phillips's arguments. (Id. at PageID# 127.) Instead, Kelly alleges that he has been receiving “pure discriminatory” treatment from health officials at the NWCC, where Phillips is now the warden. (Id. at PageID# 128.)

         II. ...


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