United States District Court, W.D. Tennessee, Western Division
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
21, 2019, this Court dismissed Plaintiff James Gates's
pro se complaint and granted leave to amend. (ECF
No. 12.) Gates timely filed a second amended complaint. (ECF
No. 14.) The second amended complaint names as Defendants
only four Registered Nurses (RNs), all of whom work at the
Federal Correctional Institution (FCI) in Memphis, Tennessee:
S. Walton, Sheena Bailey, First Name Unknown Booker, and
Lacey Barzar. (Id. at PageID 247.) The Clerk is
DIRECTED to terminate all other Defendants in this action.
second amended complaint, Gates alleges that the four RNs
“criminally and civilly conspired together as federal
employees to ‘neglect' and ‘mistreat'
Gates medical care and needs.” (Id. at PageID
248.) Gates reiterates the medical problem he experienced
with his sciatic nerve “flaring up” and the blood
clot that allegedly developed as a result of his improper
treatment. (Id.) He alleges that Defendant Walton
improperly inserted a needle into his left bicep but was
unable to inject the contents into Gates's arm.
(Id. at PageID 248-49.) Gates alleges that
“Walton was digging negligently in my arm” with
the needle, causing him “extreme pain, ” when the
contents of the syringe “burst out from between my arm
and the IV syringe, and all over my arm and the examination
room.” (Id. at PageID 249.) Gates alleges that
he still experiences “severe pain and numbness
throughout my left arm.” (Id.)
further alleges that he repeatedly informed Defendants Bailey
and Booker about the pain in his leg from the blood clot and
that he could barely walk. (Id.) The two RNs
allegedly “neglected to process my Medical Request
forms, ” so Gates was never seen for “the blood
clots that were in my leg which was causing me extreme pain
and suffering.” (Id.) Defendant Barzar
allegedly told Gates that he could not receive care at FCI
Memphis because he was not yet a federal inmate.
(Id. at PageID 250.) Gates alleges his condition
“continued to deteriate [sic] and worsen, ” and
his “extreme pain and suffering” remained.
sues the Defendants in their individual and official
capacities. (Id. at PageID 247.) He seeks punitive
and compensatory damages. (Id. at PageID 251.)
legal standards for assessing the claims in an inmate's
complaint were set forth in the prior order of dismissal,
(ECF No. 12 at PageID 236-38), and will not be reiterated
claims arise under Bivens v. Six Unknown Fed.
Agents, 403 U.S. 388 (1971), which allows federal
inmates to bring claims only against individual officers for
certain constitutional violations. As discussed in the
previous order, Gates's official capacity claims are
construed as against FCI Memphis and, in turn, against the
Federal Bureau of Prisons (B O P) . (Id. at PageID
238-39.) However, a claim under Bivens may not be
brought “against the officer's employer, the United
States, or the BOP.” Corr. Servs. Corp. v.
Malesko, 534 U.S. 61, 72 (2001). Gates therefore fails
to state a valid claim against any Defendant in his or her
allegations amount to a claim of deliberate indifference to
his medical needs. Gates alleges in this second amended
complaint that he was a convicted inmate at the time of the
alleged events. (ECF No. 14 at PageID 248.) However, in his
original complaint Gates alleged he was a detainee at the
time because he was still waiting to be sentenced in federal
court when he was transferred to FCI Memphis. (ECF No. 1 at
PageID 7, 9.) In his first amended complaint Gates also
alleged he was denied medical care at FCI Memphis “due
to his being ‘pre-trail' [sic].” (ECF No. 8
at PageID 223.) According to the docket in his criminal case,
Gates entered a guilty plea in July 2017, which is when he
alleges the events in this case occurred. See United
States v. Gates, No. 2:17-cr-20118-SHL (W.D. Tenn.)
(Mins. Guilty Plea Hr'g, ECF No. 19). He was not
sentenced until October 16, 2017, and the criminal judgment
was entered on that date. Id. (Mins. Sent. Hr'g,
ECF No. 31; Judgment, ECF No. 32). Gates therefore was a
federal pretrial detainee at the time of the alleged events
in this case, and the Court reviews his claim of deliberate
indifference under the Fourteenth Amendment. (Id. at
does not state a claim of deliberate indifference against any
Defendant. Defendant Walton's alleged negligence, even
incompetence, in administering the shot to Gates does not
amount to a constitutional violation. See Farmer,
511 U.S. at 835-36; Estelle, 429 U.S. at 106;
Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir.
2001) (explaining that a prison doctor who has provided
treatment, “albeit carelessly or inefficaciously . . .
has not displayed a deliberate indifference to the
prisoner's needs, but merely a degree of incompetence
which does not rise to the level of a constitutional
violation”). Gates alleges that Defendants Bailey and
Booker were aware of his health problems but merely neglected
to process his medical request forms. He does not allege that
either Defendant “consciously chose to disregard the
risks to [his] health” by intentionally refusing him
treatment. Allen v. Hemingway, 24 Fed.Appx. 346, 348
(6th Cir. 2001) (citing Farmer, 511 U.S. at 847).
Regarding Defendant Barzar, Gates alleges only that she told
Gates he could not receive medical care at FCI Memphis. Gates
does not allege that Barzar knew of Gates's serious
medical conditions and deliberately disregarded a risk to his
in passing alleges the Defendants conspired to deny him
proper medical treatment. Claims of conspiracy “must be
pled with some degree of specificity, and vague and
conclusory allegations unsupported by material facts are not
sufficient to state a claim.” Hamilton v. City of
Romulus, 409 Fed.Appx. 826, 835-36 (6th Cir. 2010)
(citing Spadafore v. Gardner, 330 F.3d 849, 854 (6th
Cir. 2003)). Gates's single-sentence allegation does not
meet this pleading standard and fails to state a claim.
conclusion, Gates's second amended complaint is DISMISSED
for failure to state a claim on which relief can be granted,
pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b)(1). Leave to further amend is DENIED.
to 28 U.S.C. § 1915(a)(3), the Court must also consider
whether an appeal by Gates in this case would be taken in
good faith. The good faith standard is an objective one.
Coppedge v. United States, 369 U.S. 438, 445 (1962).
It would be inconsistent for a district court to determine
that a complaint should be dismissed prior to service on the
Defendants but has sufficient merit to support an appeal
in forma pauperis. See Williams v. Kullman,
722 F.2d 1048, 1050 n.1 (2d Cir. 1983). The same
considerations that lead the Court to dismiss this case for
failure to state a claim also compel the conclusion that an
appeal would not be taken in good faith.
Court must also address the assessment of the $505 appellate
filing fee if Gates nevertheless appeals the dismissal of
this case. A certification that an appeal is not taken in
good faith does not affect an indigent prisoner
plaintiff's ability to take advantage of the installment
procedures contained in § 1915(b). See McGore v.
Wrigglesworth, 114 F.3d 601, 610-11 (6th Cir. 1997),
partially overruled on other grounds by LaFountain,
716 F.3d at 951. McGore sets out specific procedures
for implementing the PLRA, §§ 1915(a)-(b).
Therefore, Gates is instructed that if he wishes to take
advantage of the installment procedures for paying the
appellate filing fee, he must comply with the procedures set
out in the PLRA and McGore by filing an updated
in forma pauperis affidavit and a current, certified
copy of his inmate trust account for the six months
immediately preceding the filing of the notice of appeal.
analysis under 28 U.S.C. § 1915(g) of future filings, if
any, by Gates, this is the first dismissal of one of his
cases as frivolous or for failure to state a claim. This
strike shall take effect when judgment is ...