United States District Court, W.D. Tennessee, Eastern Division
PEREZ D. BASS, Plaintiff,
CHERYL TAYLOR, ET AL., Defendants.
ORDER TO MODIFY THE DOCKET, DISMISSING AMENDED
COMPLAINT, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD
FAITH AND NOTIFYING PLAINTIFF OF APPELLATE FILING
D. TODD UNITED STATES DISTRICT JUDGE
12, 2019, the Court entered an order dismissing Plaintiff
Perez D. Bass's pro se complaint under 42 U.S.C.
§ 1983 and granting leave to file an amended complaint.
(ECF No. 10.) On July 2, 2019, Bass filed a motion to amend,
to which he attached his amended complaint. (ECF No. 11.) The
Clerk shall record the following additional Defendants:
Sergeant First Name Unknown (FNU) Jones, Whiteville
Correctional Facility (WCF) Grievance Chairman; Lieutenant
FNU Scott; Medical Correctional Officer (C/O) FNU Cleaves;
Vashti McKinney, WCF Title VI Coordinator; Toyos Eye Care;
and C/O FNU Traylor-Allen.
reiterates many of the allegations regarding his eye
condition, need for specialty contact lenses, and denial of
proper treatment. His primary allegations are directed at
Defendant Dr. Bishop, who Bass alleges prescribed him
prosthetic glasses, ibuprofen, and redness reliever, none of
which offered him any relief. (ECF 11-1 at PageID 84-85, 88.)
Bishop allegedly told Bass that he had requested replacement
equipment at WCF to treat inmate eye issues but had not yet
received it. (Id. at PageID 84, 88.) Bass alleges
that an outside specialist recommended a cornea transplant,
but Bishop told Bass that the glasses and ibuprofen
“was all he could do.” (Id. at PageID
84.) Bass eventually did receive contact lenses, but he
alleges “they were not my original kind that sat off my
pupil” and only caused him more pain. (Id. at
PageID 88.) He reported the issue to Bishop, who allegedly
told Bass “there's nothing else that he could do
but give me Ibuprofen.” (Id.) Bass saw a
different outside specialist, who recommended antibiotic eye
drops. (Id. at PageID 90.) He also was seen at Toyos
Eye Care, where a cornea transplant again was recommended.
(Id.) Bishop, however, allegedly told Bass that
those recommendations were “denied by CoreCivic medical
chief and TDOC.” (Id.)
alleges that Defendant Nurse McCalvin told him to “stop
filling out sick calls” because he would not be
receiving the recommended treatment. (Id. at PageID
85.) McCalvin also allegedly told Bass that Defendant
Preston, Medical Director, had denied Bass's request for
prescription contact lenses. (Id. at PageID 86.)
However, Bass also alleges that Preston told Bass he
“had the one condi[t]ion where I needed
contacts.” (Id.) Bass also alleges that
McCalvin did not reorder his “mental health med's
like she was suppose to [sic].” (Id. at PageID
alleges in passing that Defendant Nurse Stokes on one
occasion refused to take his vital signs while Bass was
having an anxiety attack. (Id. at PageID 87.) Bass
also alleges that on one occasion he attempted to talk with
Defendant Corman, also identified as a Medical Director, who
simply said “he has nothing else for me.”
(Id.) Bass alleges that on at least two occasions,
an officer called medical for Bass when he was having an
anxiety attack, but unnamed “medical staff”
refused to see Bass or tell him who was working.
alleges that, when returning to his cell after being denied a
medical visit, Defendant Lt. Scott refused to allow him to
return to his unit. (Id. at PageID 89.) Defendant
Cleaves, Medical C/O, allegedly told Scott that Bass
“had a lawsuit on medical.” (Id.) Scott
allegedly threatened to “spray [Bass] with mas
[sic].” (Id.) Bass alleges that Scott and
Cleaves “proceeded to converse and conspired to
retaliate against me for filing a lawsuit and treating me
with disparate treatment.” (Id.) Scott then
ordered Defendant C/O Traylor-Allen to lock down Bass, even
though, Bass alleges, around twenty other inmates were
“out of place.” (Id.) The next morning,
Traylor-Allen verified that Bass had permission to see
medical, even though he had been denied a visit the previous
alleges that Defendant Preston discriminated against him
because of his race. (Id. at PageID 91.) Bass
alleges that a different inmate, who is white, “was
approved and treated for 2 sep[a]rate eye operations.”
(Id.) However, Bass, who is black, has been denied
the cornea transplant twice recommended for his keratoconus.
sues the Defendants in their official and individual
capacities. (ECF No. 11 at PageID 82.) He does not specify
the relief he seeks.
legal standards for assessing the claims in an inmate's
complaint were set forth in the prior order of dismissal,
(ECF No. 10 at PageID 72-73), and will not be reiterated
amended complaint fails to state a claim against any
Defendant in his or her official capacity. As discussed in
the previous order, Bass cannot sue the TDOC. (ECF No. 10 at
PageID 73-74.) In his amended complaint, Bass again does not
allege that he suffered an injury because of an
unconstitutional policy or custom of the City of Whiteville,
CoreCivic, or Corizon Health. He therefore fails to state a
claim against any of these Defendants or employees of these
Defendants in their official capacities. (See Id. at
amended complaint is devoid of any allegations against
Defendants Chapman, Jones, McKinney, or Taylor. When a
complaint fails to allege any action by a Defendant, it
necessarily fails to “state a claim for relief that is
plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). His general
allegations against “the medical staff” also fail
to state a claim. See Gray v. Weber, 244 Fed.Appx.
753, 754 (8th Cir. 2007) (affirming dismissal of inmate's
§ 1983 complaint alleging denial of medical care against
defendants identified “only collectively as
amended complaint fails to state an Eighth Amendment claim
against Defendant Bishop. Bass alleges that Bishop was unable
to provide the treatment Bass wanted but did prescribe
prosthetic glasses, ibuprofen, and redness reliever. At most,
Bass's allegations amount to a disagreement about
treatment. Disagreement about the course of treatment does
not present a proper claim under § 1983. Estelle v.
Gamble, 429 U.S. 97, 107 (1976); Westlake v.
Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976)
(“Where a prisoner has received some medical attention
and the dispute is over the adequacy of the treatment,
federal courts are generally reluctant to second guess
medical judgments and to constitutionalize claims which sound
in state tort law.”). Even if Bishop was negligent in
his treatment to Bass, neither negligence nor medical
malpractice amount to a constitutional violation. See
Farmer v. Brennan, 511 U.S. 825, 835-36 (1994).;
Estelle, 429 U.S. at 106 (“Medical malpractice
does not become a constitutional violation merely because the
victim is a prisoner.”).
does Bass state an Eighth Amendment claim against Defendants
McCalvin, Chalk, or Stokes. Bass alleges McCalvin failed to
reorder his “mental health med's” for his
anxiety attacks, Chalk failed to reschedule an appointment to
address the attacks, and Stokes on one occasion did not take
his vitals during an anxiety attack. Bass does not allege
that McCalvin intentionally refused to order his anxiety
medication. At most, he alleges that McCalvin negligently
failed to reorder the medication that he had been taking.
That negligence does not amount to a constitutional
violation. See Farmer, 511 U.S. at 835-36. Although
Bass does have a constitutional right to psychological
treatment, see Clark-Murphy v. Foreback, 439 F.3d
280, 292 (6th Cir. 2006) (citing cases), he does not have a
right to have someone schedule his appointments for him. Bass
does not allege that he was unable to receive treatment for
his anxiety attacks without Chalk making the appointment.
Moreover, the PLRA bars prisoner suits “for mental or
emotional injury suffered while in custody without a prior
showing of physical injury or the commission of a sexual
act.” 42 U.S.C. § 1997e(e); see Braswell v.
Corr. Corp. of Am., 419 Fed.Appx. 522, 626 (6th Cir.
2011). Bass does not allege that he suffered any injury from
McCalvin, Chalk, or Stokes's alleged inadequate treatment
of his anxiety attacks.
alleges that Defendant Corman refused to discuss his medical
treatment with him on one occasion in August 2018. (ECF No.
11-1 at PageID 87.) However, the exhibits that Bass attached
to his amended complaint, and to which he refers throughout
his amended complaint, show Corman wrote to Bass in January
2019 about his treatment and notified Bass that he was on a
list to be seen for treatment on February 5, 2019. (ECF No.
11-2 at PageID 96.) He also explained to Bass why the
recommendation for surgery had been ...