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Bostic v. Tennessee Department of Corrections

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

December 4, 2019

JAMES E. BOSTIC
v.
TENNESSEE DEPARTMENT OF CORRECTIONS, et al.

          Honorable William L. Campbell, Jr., District Judge

          REPORT AND RECOMENDATION

          BARBARA D. HOLMES, UNITED STATES MAGISTRATE JUDGE

         By Order entered July 23, 2018 (Docket Entry No. 10), the Court referred this pro se and in forma pauperis prisoner civil rights action to the Magistrate Judge for pretrial proceedings under 28 U.S.C. §§ 636(b)(1)(A) and (B), Rule 72(b) of the Federal Rules of Civil Procedure, and the Local Rules of Court.

         Presently pending before the Court is the motion for summary judgment or, in the alternative, motion to dismiss (Docket Entry No. 57) filed by Defendants Katherine Campbell, Casey Dillon, and Austin Rich. Plaintiff has responded in opposition to the motion. See Docket Entry Nos. 62 and 65. For the reasons set out below, the undersigned respectfully recommends that the motion be granted and that this action be dismissed.

         I. BACKGROUND

         James Bostic (“Plaintiff”) is a former prisoner of the Tennessee Department of Correction (“TDOC”). He filed this lawsuit pro se and in forma pauperis on June 20, 2018, seeking relief under 42 U.S.C. § 1983 based on allegations that his constitutional rights were being violated by prison officials. See Complaint (Docket Entry No. 1). Although Plaintiff appears to have been released from confinement, [1] he was within the custody of the TDOC and was confined at the Bledsoe Creek Correctional Complex (“BCCX”) in Pikeville, Tennessee at the time he filed the lawsuit. In his complaint and in three post-complaint letters that were construed as amendments to his complaint, see Docket Entry Nos. 5, 6, and 8, Plaintiff named several defendants and made multiple allegations of wrongdoing at the BCCX, including the denial of medical care, retaliation, the denial of sentence credits, and the denial of placement in work release programs and specific housing units.

         Upon initial frivolity review of the case under 28 U.S.C. §§ 1915(e)(2) and 1915A, the Court found that Plaintiff asserted colorable claims that his Eighth Amendment right to constitutionally adequate medical care had been violated. See Memorandum entered July 23, 2018 (Docket Entry No. 9), and Order entered September 10, 2018 (Docket Entry No. 20).[2] Specifically, the Court found that process should issue to three defendants - Dr. Dillon, Nurse f/n/u Darrius, and Nurse f/n/u Auston - based on Plaintiff's allegations that he had not been properly treated for chronic obstructive pulmonary disease (“COPD”), lung disease, asthma, hypertension, epilepsy, nerve pain in his feet, and an unspecified eye problem. See Memorandum at 18-21. All other claims and defendants were dismissed. See Order at 3. Plaintiff's subsequent request to amend his complaint was granted to the extent that he identified an additional defendant - BCCX Medical Administrator Kathy Campbell -on his Eighth Amendment medical care claims but was denied in all other respects. See Order entered September 10, 2018 (Docket Entry No. 20).

         Process was eventually served upon Defendants Katherine Campbell (“Campbell”), Austin Rich (“Rich”), [3] and Casey Dillon (“Dillon”) (hereinafter referred to collectively as “Defendants), who filed a joint answer.[4] See Docket Entry No. 56. Process for Nurse f/n/u Darius was returned unexecuted with a notion that there was no one with that name employed at the BCCX. See Docket Entry No. 50.

         II. MOTION FOR SUMMARY JUDGMENT AND RESPONSE

         Defendants seek summary judgment under Rule 56 of the Federal Rules of Civil Procedure, raising three arguments. First, they contend that Plaintiff did not pursue the prison grievance process about his claims prior to filing his lawsuit, and thus he has failed to exhaust his available administrative remedies, as is required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e. See Memorandum (Docket Entry No. 58) at 5-7. Second, they argue that Plaintiff does not allege sufficient facts against Defendants to state a constitutional claim that they were deliberately indifferent to his serious medical needs. Id. at 7-9. Finally, they contend that Plaintiff's claims actually sound in healthcare liability under state law but that he has not complied with the requirements of the Tennessee Health Care Liability Act, and thus his claims should be dismissed. Id. at 9-12. Defendants support their motion with the Affidavit of TDOC Correctional Program Manager and grievance records custodian Benjamin Bean and documents attached thereto (Docket Entry No. 57-1) and with a statement of undisputed material facts (Docket Entry No. 59).

         In unsworn responses to Defendants' motion, Plaintiff clarifies that the only claim he is pursuing is a claim is for an approximate seven month delay that he alleges occurred before he was given a sleep study for his COPD after a doctor had ordered in December 2017 that he be tested for this condition. See Response (Docket Entry No. 62) at 1-3 and Second Response (Docket Entry No. 65) at 3. He contends that Defendant Campbell is responsible for this delay, as well as TDOC, see Response at 1-3, but states that the other defendants should be dismissed from the case. Id. at 4. Plaintiff argues that this claim should be set for a jury trial because the claim involves a serious medical need and the Court has already determined that his allegations qualify him for the “imminent danger” exception under 28 U.S.C. § 1915(g) and raise a colorable constitutional claim. See Second Response at 1-4. With respect to Defendants' PLRA grievance defense, Plaintiff argues that he was not required to pursue a prison grievance because the issue involved the denial of medical care for a serious life threatening condition that put him in imminent danger. Id. at 2. Plaintiff does not respond to Defendants' argument about the lack of merit of any state law claim and also does not respond to Defendants' statement of undisputed material facts.[5]

         In a reply, Defendants contend that Plaintiff's assertion of a delay in treatment fails to support his constitutional claim because Plaintiff fails to allege that he suffered a serious physical injury as a result of the alleged failure to provide him with medical care. See Reply (Docket Entry No. 3).

         III. STANDARD OF REVIEW

         A motion for summary judgment is reviewed under the standard that summary judgment is appropriate if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Rule 56(a) of the Federal Rules of Civil Procedure. See also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A “genuine issue of material fact” is a fact which, if proven at trial, could lead a ...


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