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Landers v. Cadreche

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

December 11, 2019

CALVIN LANDERS #417289, Plaintiff,
v.
MARINA CADRECHE, Defendant

          MEMORANDUM OPINION AND ORDER

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

         Calvin Landers, a convicted inmate currently housed in the Northwest Correctional Complex in Tiptonville, Tennessee, has filed this pro se civil rights action under 42 U.S.C. § 1983 (Doc. No. 1), and an application to proceed in district court without prepaying fees and costs. (Doc No. 4.) Plaintiff has also filed a document captioned as “1983 Prisoner Civil Rights Violated By Marina Cadreche, ” which the Court liberally construes as a supplement to his original complaint. (Doc. No. 5.) The case is before the Court for a ruling on the application and for an initial review pursuant to the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. §§ 1915(e)(2) and 1915A, and 42 U.S.C. § 1997e.

         I. APPLICATION TO PROCEED AS A PAUPER

         Under the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(a), a prisoner bringing a civil action may be permitted to file suit without prepaying the filing fee of $350 required by 28 U.S.C. § 1914(a). Because it is apparent from Plaintiff's submission that he lacks the funds to pay the entire filing fee in advance, his application to proceed as a pauper (Doc. No. 4) is GRANTED.

         Pursuant to 28 U.S.C. §§ 1915(b) and 1914(a), Plaintiff is nonetheless assessed the $350.00 civil filing fee. The custodian of Plaintiff's trust account is DIRECTED to submit to the Clerk of Court, as an initial payment, the greater of: (a) 20% of the average monthly deposits to Plaintiff's credit at the jail; or (b) 20% of the average monthly balance to Plaintiff's credit for the six-month period immediately preceding the filing of the complaint. 28 U.S.C. § 1915(b)(1). Thereafter, the custodian shall submit 20% of the Plaintiff's preceding monthly income (or income credited to Plaintiff for the preceding month), but only when the balance in his account exceeds $10.00. 28 U.S.C. § 1915(b)(2). Payments shall continue until the $350.00 filing fee has been paid in full to the Clerk of Court. 28 U.S.C. § 1915(b)(3).

         The Clerk of Court MUST send a copy of this Order to the Warden of Northwest Correctional Complex to ensure compliance with that portion of 28 U.S.C. § 1915 pertaining to the payment of the filing fee. If Plaintiff is transferred from his present place of confinement, the custodian must ensure that a copy of this Order follows Plaintiff to his new place of confinement, for continued compliance with the Order. All payments made pursuant to this Order must be submitted to the Clerk of Court for the United States District Court for the Middle District of Tennessee, 801 Broadway, Nashville, TN 37203.

         II. INITIAL REVIEW OF THE COMPLAINT

         A. Standard for Initial Review

         Pursuant to 28 U.S.C. § 1915(e)(2), the Court is required to conduct an initial review of any complaint filed in forma pauperis, and to dismiss the complaint if it is facially frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief against a defendant who is immune from such relief. In reviewing the complaint to determine whether it states a plausible claim, “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, 561 F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (citations omitted)). A pro se pleading must be liberally construed and “held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

         Plaintiff seeks to vindicate alleged violations of his federal constitutional rights under 42 U.S.C. § 1983. Section 1983 confers a private federal right of action against any person who, acting under color of state law, deprives an individual of any right, privilege or immunity secured by the Constitution or federal laws. Wurzelbacher v. Jones-Kelley, 675 F.3d 580, 583 (6th Cir. 2012). Thus, to state a § 1983 claim, a plaintiff must allege two elements: (1) a deprivation of rights secured by the Constitution and laws of the United States, and (2) that “the deprivation was caused by a person acting under color of state law.” Tahfs v. Proctor, 316 F.3d 584, 590 (6th Cir. 2003) (citations omitted); 42 U.S.C. § 1983.

         B. Allegations

         Plaintiff alleges that he complained to a doctor on May 22, 2017, about having an infection and was denied medical treatment. (Doc. No. 1 at 5.) After several more months of complaining, he asked a nurse to take a stool sample on August 17, 2017, which tested positive for an infection. (Id.)

         Plaintiff also alleges that on December 1, 2017, a dermatologist prescribed him Cetirizine HCL[1] and petroleum jelly for an unspecified “serious health issue.” (Doc. No. 1 at 12; Doc. No. 5 at 2.) Plaintiff was provided with those remedies on December 13 and December 15, respectively, but in the following months his refills were sometimes delayed by 1-2 days, and once he was without Cetirizine HCL for 17 days and without petroleum jelly for 15 days. (Doc. No. 1 at 12; Doc. No. 5 at 2-3.) He characterizes this as “Marina Cadreche['s] denial of medication in a timely manner” and her “fail[ure] to refill” his medication. (Doc. No. 1 at 12; Doc. No. 5 at 2.) He identifies Cadreche as the Assistant Commissioner of Rehabilitative Services for the Tennessee Department of Correction in Nashville. (Doc. No. 1 at 2.)

         Finally, Plaintiff alleges that on August 16, 2019, a dermatologist prescribed an anti-itch lotion and Dove soap for an itchy rash. (Doc. No. 5 at 4.) He says he received the lotion on August 23, but did not receive the Dove soap until September 12, “2 weeks 5 days late.” (Id.) Plaintiff says that his rash causes him ...


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