Hempstead v. Parker (PSLC2)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

HAROLD HEMPSTEAD, )

)

Petitioner, )

)

v. ) No.: 3:21-CV-417-TAV-DCP

)

TONY PARKER, )

KENNETH WILLIAMS, )

EMMA RICH, )

KATIE CAMPBELL, )

SHAWN PHILLIPS, and )

NATHAN TOLLETT, )

)

Defendants. )

MEMORANDUM OPINION

Before the Court are Defendants’ motions for summary judgment in this pro se

prisoner civil rights action under 42 U.S.C. § 1983 [Docs. 139, 141, 145, 148, 151]. Also

before the Court are Defendants’ joint motion to dismiss for failure to prosecute [Doc. 176]

and various non-dispositive motions filed by the parties [Docs. 175, 178, 182, 186, 187,

194, 195, 197]. Upon consideration of the parties’ pleadings, the competent summary

judgment evidence, and the applicable law, the Court finds that summary judgment should

be GRANTED. Defendants’ motion to dismiss and all other pending motions will be

DENIED as MOOT, and this action will be DISMISSED with prejudice.

I. BACKGROUND

A. Factual Background

Plaintiff is a 47-year-old state prisoner with a history of hip and lower back pain

[Doc. 144 p. 3]. In November 2020, he was transferred to Bledsoe County Correctional

Center (“BCCX”), where healthcare is provided by Centurion of Tennessee (“Centurion”)

[Doc. 20 p. 3]. The following month, a nurse practitioner evaluated Plaintiff regarding his

back and hip pain and determined that he did not need physical therapy [Doc. 144 p. 5].

However, in March 2021, a nurse practitioner placed Plaintiff on Class B restrictions,

which mandate limitations on weight-lifting and strenuous activity, as well as a bottom

bunk assignment [Id. at 4].

On June 2, 2021, Plaintiff submitted a sick call request regarding a lump in his lower

abdomen that “often times causes [him] pain” [Id. at 9]. The next day, Plaintiff was seen

by a sick call nurse [Id. at 10]. He told the nurse that the lump had appeared two months

earlier and that his pain was four or five on a scale of one to ten [Id.]. Plaintiff also told

her that he was taking naproxen sodium (Aleve) that he purchased at the commissary for

the pain [Id.]. The nurse referred Plaintiff to a provider [Id.].

On July 15, 2021, Physician Assistant Nathan Tollett evaluated Plaintiff regarding

the abdominal lump [Id. at 13–14]. Tollett diagnosed Plaintiff with an inguinal hernia1

1 An inguinal hernia is a protrusion of tissue through a weak spot in the abdominal

muscles that may or may not cause pain. See Mayo Clinic, Inguinal hernia,

https://www.mayoclinic.org/diseases-conditions/inguinal-hernia/symptoms-causes/syc-20351547

(last visited May 15, 2023).

2

[Doc. 144 p. 14]. In Plaintiff’s medical chart, Tollett documented that the lump was a

“[r]educible mass @ lower abdominal quadrant” 2 [Id. at 14]. He also noted that it

was “small,” and that Plaintiff was experiencing “intermittent pain” [Id.; see also

Doc. 145-1 ¶ 7]. Tollett determined that surgical intervention was not indicated and

instructed Plaintiff to undergo watchful waiting, meaning that Plaintiff should monitor the

hernia and return to the clinic with any changes [Doc. 145-1 ¶ 7].

According to Plaintiff, during the evaluation, Tollett said that “for budget reasons

Centurion and Tennessee Department of Corrections (“TDOC”) do not refer inmates to

have hernia surgeries until they become strangulated, so the Plaintiff would not be able to

have surgery on his hernia until it becomes strangulated” [Doc. 20 p. 7]. Plaintiff attests

that when he raised concerns about strangulation being a life-threatening condition, Tollett

flippantly responded that there would be a twelve hour window in which to perform surgery

if Plaintiff’s hernia strangulates [Id.]. Tollett denies telling Plaintiff that he could not have

a hernia surgery due to budget reasons [Doc. 170 ¶ 7].

On August 5, 2021, Plaintiff submitted a sick call request, stating that his hernia was

“causing him pain and altering his daily activities” [Doc. 144 p. 15]. He asked for a hernia

belt, low residue diet, and ultrasound [Id.]. When Plaintiff saw a sick call nurse two days

2 A hernia is “reducible” if the protruding tissue can be pushed back through the abdominal

wall. When a hernia is not reducible and the blood flow to the protruding tissue is restricted or

reduced, the hernia is “strangulated.” Strangulation is a life-threatening, but rare condition. The

risk of a hernia becoming strangulated is estimated at 1% to 3% over a person’s lifetime. See

Alyssa Pastorino & Amal A. Alshuqayfi. Strangulated Hernia. (Updated Dec. 19, 2022). In:

StatPearls [Internet]. Treasure Island (FL): StatPearls Publishing; 2023 Jan-. Available from:

https://www.ncbi.nlm.nih.gov/books/NBK555972/ (last visited May 15, 2023).

3

later, he reported that he was experiencing a throbbing pain that was a level four out of ten

[Id. at 16–17]. He asked for a second opinion on his hernia and repeated his request for a

hernia belt [Id. at 17–18]. The nurse referred him to a provider [Id. at 16].

On August 17, 2021, Tollett reviewed Plaintiff’s chart and ordered him a hernia belt

size large [Id. at 19; Doc. 170-1 ¶ 3]. That same day, Plaintiff was called to the medical

department where a nurse issued him the hernia belt [Doc. 144 p. 20]. According to

Plaintiff, the belt did not fit because it was two sizes too large [Doc. 165-1 p. 5–6]. Tollett

attests that when he ordered the belt he believed it was the appropriate size and that the

purported sizing problem was not brought to his attention. [Doc. 170-1 ¶ 3].

On August 18, 2021, Warden Shawn Phillips received a copy of a handwritten

notice (“the Notice”) that Plaintiff had been mass distributing among the BCCX inmates

[Doc. 141-1 ¶ 15]. The Notice—which invited inmates to join a civil rights class action

against Centurion and TDOC—read as follows:

Important

Do you have a hernia that Centurion Medical staff are refusing to arrange for

you to have surgery on? Do you believe that inmates who are housed in the

transit housing units at Special Needs for medical reasons, are subjected to

food and nutritional deprivation? Do you believe that the large amount of

inmates and staff who go in and out of the transit housing units at Special

Needs on a daily basis, place the inmates who are housed in those units for

medical reasons, at high risk of contracting Covid-19? Do you believe that

the housing problems that are at TDOC institutions other than Bledsoe,

that cause a lot of the violence in TDOC, place the inmates housed in the

transit housing units at Special Needs for medical problems, at high risk

of being physically and/or sexually assaulted? Has Centurion Medical staff

told you, that for budget reasons, they cannot provide you with a certain

form of medical care or surgery? If you answered yes to any of these

questions and you’d like to be involved with a federal class action civil

4

rights complaint, I’d like to talk with you. My name is Harold Hempstead

and I’m in Unit 12. You can also have your people contact Windy at

hempsteadpublications8@gmail.com. Please tell your true story in the

email.

[Doc. 165-2 p. 8]. Several inmates had posted copies of the Notice on the bulletin boards

in all of the housing units [Doc. 20 p. 16]. This led to Plaintiff having “hundreds of

conversations” with inmates about the concerns raised in the Notice [Id.].

After investigating the situation, Phillips determined that the Notice was causing

unrest among the inmates, and he suspected Plaintiff of inciting a riot [Doc. 141-1, ¶¶ 13,

18–19]. He directed TDOC staff to place Plaintiff in a pending investigation cell and

ordered a transfer request for Plaintiff to be transferred to Trousdale Turner Correctional

Center (“Trousdale”) [Id. ¶ 25; Doc. 177-2 ¶ 3]. Warden Phillips routinely “swap[s]”

inmates with other TDOC institutions for the purposes of operating the prison in a secure

manner [Doc. 177-2 ¶ 6].

Phillips names two additional reasons for his actions. First, he says he suspected

Plaintiff of violating an unwritten BCCX policy prohibiting inmates from posting flyers on

prison bulletin boards [Doc. 141-1 ¶ 23]. Plaintiff attests that there is no such rule,

and inmates regularly hang flyers of all types on the bulletin boards [Doc. 168 p. 7]. In

addition, Phillips attests that he placed Plaintiff in segregation for Plaintiff’s own safety

[Doc. 141-1, ¶¶ 18, 25]. According to Phillips, inmates were angry with Plaintiff for telling

Centurion staff members that they were supporters of his “cause” [Id. ¶ 12, 14]. Plaintiff

maintains that he never used the names of any inmates in a conversation with Centurion

staff members and that no inmates were upset with him [Doc. 168 p. 5].

5

On the morning of August 19, 2021, Institutional Investigator Corporal Velma

Barnett met with Plaintiff in his segregation cell [Doc. 20 p. 17]. Plaintiff told Barnett that

he had written and distributed the Notice [Id.]. That afternoon, a classification counselor

asked Plaintiff to sign papers reclassifying him to Trousdale [Id. at 18–19]. Plaintiff

initially refused to sign because he believed that if he were transferred to Trousdale he

might be raped or killed [Id. p. 17–18]. However, the counselor advised him that there

would be “more problems” if he did not sign the papers, so Plaintiff complied [Id. at p. 18].

After signing the reclassification papers, Plaintiff called his sister, two friends, and a

journalist at the Miami Herald to tell them that he was being subjected to a retaliatory

transfer [Id. at 18–19]. He also made two Prison Rape Elimination Act (“PREA”) tip line

calls, a call to the PREA center, and a call to Prison Legal News to inform them about his

situation [Id. at 20].

At some point between August 19, 2021 and August 20, 2021, Warden Phillips

determined that it was safe for Plaintiff to remain at BCCX and that he did not need to be

transferred [Doc. 177-2 ¶ 5]. On the morning of August 20, 2021, the Warden directed

that Plaintiff be reclassified back to BCCX without any disciplinary charges [Doc. 141-1,

¶¶ 26, 27, 29].

Plaintiff attests that prior to his release, Corporal Barnett told him that the Warden

was being investigated for possible misconduct in connection with Plaintiff’s treatment

[Doc. 20 p. 21]. She then warned Plaintiff that if he publicized or filed a grievance about

6

what had happened, he would be arrested for obstruction of justice, transferred to

Trousdale, or placed in close custody at another institution [Id.].

On August 24, 2021, Dr. Ernest Jones evaluated Plaintiff’s hernia [Doc. 144 p. 21;

Doc. 20 p. 8]. Plaintiff told Dr. Jones that pain from his hernia was altering his daily

activities and requested a low residue diet, ultrasound, and surgical treatment [Doc. 20,

p. 8]. Dr. Jones documented that Plaintiff had a small bulge in the inguinal area that was

not in the scrotal sac, that Plaintiff suffered from intermittent pain, and that he had a hernia

belt he was not using [Doc. 144 p. 21]. Dr. Jones did not alter Tollett’s recommendation

for watchful waiting and use of the hernia belt [Id.]. According to Plaintiff, Dr. Jones said

that due to financial reasons, Centurion would not allow him to refer Plaintiff to a specialist,

but that surgery for Plaintiff’s hernia would be arranged if the hernia strangulated [Id.].

On January 20, 2022, Plaintiff submitted a sick call request regarding his “painful

hernia” and lower body mobility problems [Doc. 165-2 p. 75]. He requested a wheelchair,

pain medicine, a sonogram, low residue diet, and a referral to a local hernia specialist for a

consult [Id.]. Plaintiff saw a sick call nurse on January 24, 2022 [Doc. 165-1 p. 5 ¶].

On February 16, 2022, Tollett reviewed Plaintiff’s chart and ordered him a hernia

belt [Doc. 170-1 ¶ 4]. According to Plaintiff, the belt, which was size extra-large, was

much too large for him [Doc. 165-1 p. 5–6]. Tollett attests that when he ordered the belt

he believed it was the appropriate size, and that the sizing problem was not brought to his

attention [Doc. 170-1 ¶ 4]. After February 16, 2022, Tollett did not treat Plaintiff and was

no longer responsible for his care [Doc. 145-1 ¶ 12].

7

B. Relevant Procedural History

On December 6, 2021, Plaintiff filed a complaint pursuant to 42 U.S.C. § 1983

against various TDOC officials and Centurion medical personnel associated with BCCX

[Doc. 1]. He filed an amended complaint on January 26, 2022 [Doc. 20].

After the Court entered a screening order [Doc. 21] and ruled on the Centurion

defendants’ motions to dismiss [see Doc. 98], this action proceeded as to Plaintiff’s

individual capacity claims against Tollett, Campbell, and Phillips for denial of medical care

for his hernia and against Phillips for First Amendment retaliation. This action also

proceeded as to Plaintiff’s official capacity claims against Centurion and TDOC defendants

for denial of medical care for his hernia; against Phillips for First Amendment retaliation;

and against TDOC defendants Williams and Strada3 for denial of access to his medical

records. Plaintiff seeks declaratory and injunctive relief as well as money damages

[Doc. 20 p. 29–31].

Defendants now move for summary judgment on all claims.

II. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate when the pleadings and evidence, viewed in a

light most favorable to the nonmoving party, illustrate that no genuine issue of material

fact exists and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P.

56(a),(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is deemed “material”

3 Because Frank Strada has replaced Tony Parker as TDOC Commissioner, Strada

is automatically substituted for Parker as a defendant in his official capacity. See Fed. R.

Civ. P. 25(d).

8

if resolving that fact in favor of one party “might affect the outcome of the suit under the

governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To establish

an entitlement to summary judgment, the moving party must demonstrate that the

nonmoving party cannot establish an essential element of his case for which he bears the

ultimate burden of proof at trial. Celotex, 477 U.S. at 322.

Once the motion is properly supported with competent evidence, the nonmovant

must show that summary judgment is inappropriate by setting forth specific facts showing

there is a genuine issue for trial. Anderson, 477 U.S. at 250. If the “evidence is such that

a reasonable jury could return a verdict for the nonmoving party,” then there is a genuine

dispute as to a material fact. Id. at 248. If no proof is presented, however, the Court does

not presume that the nonmovant “could or would prove the necessary facts.” Little v.

Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citing Lujan v. Nat’l Wildlife Fed’n.,

497 U.S. 871, 889 (1990)).

III. ANALYSIS

Defendants contend that no genuine issue of material fact exists regarding the claims

against them, and that they are entitled to judgment as a matter of law. In addition, the

Centurion defendants and Warden Phillips argue that Plaintiff’s failure to exhaust

administrative remedies entitles them to summary judgment. The Court will first address

the issue of exhaustion before turning to the merits of Plaintiff’s individual and official

capacity claims.

9

A. Administrative Exhaustion

Under the Prison Litigation Reform Act, a prisoner must exhaust “such

administrative remedies as are available” before bringing a civil rights suit in federal court.

42 U.S.C. § 1997e(a). Administrative exhaustion is mandatory, regardless of the type of

relief sought, or whether such relief can be granted through the administrative

process. See Ross v. Blake, 578 U.S. 632, 641 (2016); Woodford v. Ngo, 548 U.S. 81,

85 (2006) (citing Booth v. Churner, 532 U.S. 731, 739 (2001)). Moreover, the requirement

is one of “proper exhaustion,” which requires a plaintiff to complete the grievance

procedures put forward by his correctional institution, including procedural rules and

deadlines, before bringing suit in federal court. Woodford, 548 U.S. at 88, 93.

Failure to exhaust is an affirmative defense for which defendants bear the burden of

proof. Surles v. Andison, 678 F.3d 452, 458 (6th Cir. 2012). Therefore, “[w]hen the

defendants in prisoner civil rights litigation move for summary judgment on administrative

exhaustion grounds, they must prove that no reasonable jury could find that the plaintiff

exhausted his administrative remedies.” Mattox v. Edelman, 851 F.3d 583, 590 (6th Cir.

2017) (citing Surles, 678 F.3d at 455–56).

1. TDOC Administrative Process

TDOC follows a three-level process of review for inmate grievances [See

Doc. 141-3 p. 3–4]. At the first level, an inmate must submit a grievance form within seven

days of the occurrence that gave rise to the grievance [Id. at 3]. The grievance should

10

include “specific details, i.e. dates, times, names of persons involved” [See id. at 13].

Grievances that are improperly completed or contain insufficient information for

processing are returned to the inmate for correction [Id. at 3]. After the grievance is

received, the supervisor writes a response, which is reviewed by the chairperson, and then

the chairperson writes a response on the grievance form [Id.]. The inmate can appeal the

level one response within five days [Id.]. At the second level, the institution’s grievance

committee drafts a proposed response, and the warden decides whether or not to adopt it

[Id.]. The inmate can appeal the level two response within five days [Id. at 4]. At the third

level, TDOC’s Assistant Commissioner of Prisons or their designee reviews the grievance

and prepares a response which is “final and not subject to appeal” [Id.].

2. Exhaustion of Denial of Medical Care Claim

In separate motions, Centurion defendants Tollett, Campbell, and Rich move for

summary judgment on exhaustion grounds [See Doc. 146 p. 12; Doc. 154 p. 16–17;

Doc. 152 p. 17–18]. They each contend that Plaintiff failed to exhaust his claims against

them because he did not adequately name them in his grievances, as required by TDOC

policy [Doc. 170 p. 6–7; Doc. 172 p. 3; Doc. 174 p. 6]. In support of this assertion, they

have submitted a record of Plaintiff’s medical grievances from September 2020 to

March 2022 [See, e.g. Doc. 145-2].

11

A review of Plaintiff’s medical grievances shows that he filed a grievance

regarding his hernia on August 2, 2021 and September 1, 20214 [Id. at 24, 36]. In the

August grievance, Plaintiff stated:

This grievance is on a pattern and practice of Centurion medical staff and

TDOC staff, for budget reasons, denying inmates hernia surgeries until their

hernias became strangulated . . .

. . .

On 7-27-21, I was told that the nurse’s name that I saw on 7-15-21, is Nathan

Tollitt [sic]. During the consultation that I had with the foregoing nurse, he

told me that I have a hernia. That for budget reasons Centurion and TDOC

don’t send inmates to have hernia surgeries until they become strangulated,

so I wouldn’t be able to have surgery on my hernia until it becomes

strangulated . . .

[Id. at 24–25]. As requested relief, Plaintiff demanded that TDOC officials, as well

as “ . . . Centurion and the BCCX Doctor and Health Service[s] Administrator . . . stop the

unconstitutional practice of denying inmates hernia surgery until their hernias become

strangulated” [Id. at 27]. Plaintiff exhausted this grievance on August 24, 2021

[Id. at 22, 24].

A reasonable jury could find that the August grievance satisfies the exhaustion

requirement as to Tollett and Campbell. Tollett was expressly named. And Campbell—

who was the Health Services Administrator at all times relevant to this complaint—was

4 Plaintiff also filed a grievance regarding his hernia on February 22, 2022 [See

Doc. 145-2 p. 2]. However, because that grievance was filed after the commencement of this

lawsuit, Plaintiff cannot rely upon it to satisfy the exhaustion requirement. See Freeman v.

Francis, 196 F.3d 641, 645 (6th Cir. 1999) (“The prisoner . . . may not exhaust administrative

remedies during the pendency of the federal suit.”).

12

named by job title [See Doc. 151-1 ¶ 2]. Campbell points to no TDOC rule requiring the

use of personal names in grievances. Indeed, even if TDOC had such a rule, it was not

enforced here. See Reed-Bey v. Pramstaller, 603 F.3d 322, 325 (6th Cir. 2010) (“When

prison officials decline to enforce their own procedural requirements and opt to consider

otherwise-defaulted claims on the merits, so as a general rule will [the court].”).

Arguably, Plaintiff also sufficiently named Dr. Rich in the August grievance when

he referred to “the BCCX Doctor.” Dr. Rich was the site doctor at BCCX at the time

Plaintiff filed this grievance [See Doc. 158 ¶ 2]. In any event, Plaintiff named Rich in the

grievance he filed on September 1, 2021 [Doc. 145-2 p. 40]. Among other issues raised in

that grievance, Plaintiff demanded that “Centurion Dr. Rich” and other officials “stop

denying me my rights to treatment and surgery on my . . . hernia” [Id.]. Defendant Rich

has presented no argument regarding why this grievance, which Plaintiff exhausted on

September 15, 2021, cannot satisfy the exhaustion requirement as to Plaintiff’s claim

against her [Id. at 34].

In sum, Defendants Tollett, Campbell, and Rich have not met their respective

burdens of showing that they would prevail on the exhaustion issue at trial. Thus, they are

not entitled to summary judgment on that ground.

3. Exhaustion of Retaliation Claim

Warden Phillips argues that he is entitled to summary judgment on the retaliation

claim against him because Plaintiff failed to exhaust administrative remedies

[Doc. 142 p. 17]. Plaintiff admits that he did not file any grievances regarding this claim

13

[Doc. 20 p. 25]. However, he asserts that the grievance process was not available to him

because “[Corporal] Barnett told him that he would be arrested for obstruction of justice

and transferred to Trousdale or placed in close custody segregation status if [he] filed any

grievances” [Id.].

Although exhaustion is generally a strict requirement, there is an exception: an

inmate is not required to exhaust remedies that are not “available.” Ross v. Blake, 578 U.S.

632, 642 (2016). The Supreme Court has recognized that remedies are not available if

prison officials “thwart inmates from taking advantage of a grievance process through

machination, misrepresentation, or intimidation.” Id. at 643–44.

To determine whether intimidation excuses a prisoner’s non-exhaustion, several

circuit courts have adopted a two-part test that includes an objective and a subjective

component: (1) that the threat of retaliation would have deterred an inmate of ordinary

firmness from using the grievance process and (2) that the inmate was actually deterred.

See, e.g. Turner v. Burnside, 541 F.3d 1077, 1085 (11th Cir. 2008) (originating the test);

Rinaldi v. United States, 904 F.3d 257, 269 (3d Cir. 2018) (joining the Ninth and Tenth

Circuits in adopting the test from Turner); but see Edmeyer v. Brock, 11 F. 4th 537, 543

(7th Cir. 2021) (joining the Second Circuit in adopting purely objective test).

The Sixth Circuit has not adopted this two-part test in a published opinion.

However, several district courts in this circuit have found it persuasive as a means of

imposing reasonable limits on the intimidation exception. See Peterson v. Pigg, Civil

Action No. 20-12635, 2021 U.S. Dist. LEXIS 170863, at *9 (E.D. Mich. Aug. 2, 2021);

14

Greene v. United States, Civil Action No. 6:19-cv-00024-GFVT, 2021 U.S. Dist. LEXIS

60837, at *43–46 (E.D. Ky. Mar. 29, 2021); Pool v. Klenz, No. 3:15 CV 1430, 2017 U.S.

Dist. LEXIS 43258, 2017 WL 1113359, at *4 (N.D. Ohio Mar. 24, 2017), aff'd,

No. 17-3426, 2018 U.S. App. LEXIS 1174 (6th Cir. Jan. 17, 2018). This Court also finds

it persuasive and will apply it here.

Taking Plaintiff’s statements as true, a reasonable jury could find that the objective

component is satisfied. Specifically, the threat of a criminal charge—such as Barnett’s

alleged threat that Plaintiff would be charged with obstruction of justice—could deter an

ordinary inmate from using the grievance process. And although the threat of being

transferred to another prison does not necessarily rise to the level of intimidation, the threat

of being transferred to a more restrictive environment or a significantly more dangerous

prison could meet that standard. See Hill v. Lappin, 630 F.3d 468, 475 (6th Cir. 2010)

(“Being threatened with a transfer to a more restrictive living environment with fewer

privileges would deter a person of ordinary firmness from exercising the constitutional

right to file grievances.”); Himmelreich v. Federal Bureau of Prisons, 766 F.3d 576,

577–78 (6th Cir. 2014) (finding that an inmate of ordinary firmness could be deterred from

using the grievance process where, among other circumstances, a prison official threatened

the plaintiff that if he filed more grievances he would be transferred to a prison where he

would “more than likely be attacked and not just beat up”).

Phillips argues that Plaintiff’s failure to exhaust should not be excused because he

was not actually intimidated by Barnett’s threat [See Doc. 142 p. 19]. He claims that

15

Plaintiff was not intimidated because he was “undeterred in filing grievances at BCCX”

[Id. at 19]. As evidence in support of that argument, he has submitted twenty-eight

grievances that Plaintiff submitted between June 15, 2021 and December 2, 2021, twenty-

three of which were filed after Plaintiff’s release from segregation [See Doc. 191-2;

Doc. 191-3; Doc. 191-4; Doc. 191-5; see also Doc. 191-1]. He also points to Plaintiff’s

conduct while in segregation as evidence that he was not afraid to challenge the Warden’s

authority [Doc. 142 p. 20].

“Evidence that an inmate continued to file substantially similar claims through the

same grievance process . . . may be sufficiently compelling to defeat an inmate’s assertion

of subjective deterrence.” Rinaldi, 904 F.3d at 269; see also Sango v. Fleury,

No. 21-2597/2598/2599, 2022 U.S. App. LEXIS 12111, at *7 (6th Cir. May 4, 2022)

(finding that inmate’s history of grievances belied his claim of intimidation because he

continued to file grievances, some of which were against the same prison officials who

supposedly intimidated him).

However, Plaintiff did not file grievances that were substantially similar to his

retaliation claim during the year following his release from segregation. Phillips’s

evidence includes only one grievance that Plaintiff filed after his release from segregation

on August 20, 2021, and before his filing of this lawsuit on December 6, 2021 [See

Doc. 191-2 p. 97]. That was the September 1, 2021, grievance mentioned above in

connection with Plaintiff’s exhaustion of the claim against Dr. Rich [Id.]. In that grievance,

16

Plaintiff complained about Centurion staff’s treatment of his hernia and objected to the

possibility of being sent to DeBerry Special Needs Facility (“DSNF”) for care [Id.]. The

grievance records reflect that Plaintiff did not file another grievance until February of 2022,

seven months later, when he submitted a grievance regarding his hernia and other health

concerns [Doc. 191-4 p. 12]. The remainder of Plaintiff’s grievances were submitted

between August and December of 2022 [See Doc. 191-3; Doc. 191-4 p. 17–60;

Doc. 191-5].

The Warden argues that Plaintiff’s September 1, 2021, grievance—as well as two

grievances that Plaintiff claims to have filed on September 7, 2021, and September 9, 2021,

regarding conditions at DSNF [see Doc. 20 p. 22]—show that he was not intimidated

because those grievances raise topics mentioned in the Notice [Doc. 142 p. 19–20].

Warden Phillips has not produced a copy of the September 7 and September 9 grievances.

However, assuming that Plaintiff filed them, those grievances, like the September 1, 2021,

grievance, were only indirectly related to Plaintiff’s retaliation claim. They did not

mention Warden Phillips, retaliation, or the circumstances of Plaintiff’s segregation.

Phillips also points out that Plaintiff filed three grievances that implicated the

Warden in retaliation: one for retaliatory transfer; one for retaliatory refusal to transfer; and

one for denial of access to Westlaw [See Doc. 142 p. 19; see also Doc. 191-3 p. 56;

Doc. 191-5 p. 4, 24]. However, Plaintiff filed those grievances between September 2022

and October 2022, over a year after his placement in segregation. Given their remoteness

17

in time from the events underlying Plaintiff’s retaliation claim, those grievances do

not disprove Plaintiff’s claim of intimidation when applying the applicable summary

judgment standards.

The Court agrees with Phillips that Plaintiff’s vocal self-advocacy during his stay

in segregation suggests that he was not afraid to challenge the Warden’s authority at that

time. When Plaintiff learned of his impending transfer to Trousdale he contacted multiple

parties—his sister, friends, a journalist, Prison Legal News, and the PREA tip line—to

enlist their help in fighting what he deemed a retaliatory transfer. However, Plaintiff made

these calls on August 19, 2021, before the alleged threat by Barnett the following day.

Also, given that Plaintiff expended significant effort while in segregation to avoid being

transferred to Trousdale, a reasonable jury could find that the threat of being transferred to

that very prison was enough to silence him on the issue of retaliation.

In addition to his argument that Plaintiff was not actually intimidated, Warden

Phillips argues that Plaintiff cannot be excused from the exhaustion requirement because

he made no affirmative effort to use the administrative process [Doc. 142 p. 21]. Generally,

“[t]he Sixth Circuit requires some affirmative efforts to comply with the administrative

procedures before analyzing whether the facility rendered these remedies unavailable.”

Napier v. Laurel Cnty., 636 F.3d 218, 223 (6th Cir. 2011) (citations omitted). However,

when, as here, an inmate asserts that he was deterred from using the grievance process by

a prison official’s intimidation, a showing of affirmative efforts to exhaust is not strictly

18

required. See Gilmore v. Ormond, No. 19-5237, 2019 U.S. App. LEXIS 30007, at *4 (6th

Cir. Oct. 4, 2019) (quoting Rinaldi, 904 F.3d 257 at 267) (“[A] threat of substantial

retaliation” by a prison official constitutes intimidation and is sufficient to make the

grievance system unavailable to an inmate.”). Indeed, if Plaintiff had attempted to use the

grievance process despite Barnett’s alleged threat, that attempt would show that he was not

actually intimidated.

The Court does not suggest that Plaintiff would win on the exhaustion issue at a

later stage of litigation. In particular, the likelihood that Barnett actually made such a

threat—which Phillips does not question and which the Court does not address here—may

be open to challenge. However, taking Plaintiff’s statements as true and viewing the

evidence in the light most favorable to him, a reasonable juror could find that intimidation

rendered the grievance process unavailable. Accordingly, Plaintiff’s failure to exhaust is

not fatal to his retaliation claim.

B. Individual Capacity Claims

The Court now turns to the merits of Plaintiff’s individual capacity claims. To

demonstrate individual liability under § 1983, Plaintiff must establish (1) that the defendant

acted under color of state law, and (2) that his actions violated the rights secured by the

Constitution and/or laws of the United States. Jones v. Muskegon Cnty., 625 F.3d 935,

941 (6th Cir. 2010).

19

It is uncontested that the Defendants acted under color of state law.5 At issue is

whether they violated Plaintiff’s constitutional rights.

To establish a violation of his federal rights, a §1983 plaintiff must make a clear

showing that the particular defendant was personally involved in the activity that forms the

basis of the complaint. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Because vicarious

liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government

official defendant, through the official’s own individual actions, has violated the

Constitution.”). A supervisor cannot be held liable based upon a mere failure to act or

the right to control employees. Bass v. Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999).

Rather, the plaintiff must show that the supervisor actively engaged in unconstitutional

behavior. Id.

1. Denial of Medical Care

Plaintiff claims that Defendants Tollett, Campbell, and Phillips violated his Eighth

Amendment right to adequate medical care by failing to adequately treat his hernia [See,

e.g. Doc. 20 p. 26]. An Eighth Amendment claim for the denial of adequate medical

treatment is composed of two parts: (1) an objective component, which requires a plaintiff

to show a "sufficiently serious" medical need; and (2) a subjective component, which

5 Employees of private companies that perform traditional state functions, such as

providing medical care to inmates, act under color of state law for the purposes of § 1983. Martin

v. Warren Cnty., 799 F. App’x 329, 337 (6th Cir. 2020) (citing Winkler v. Madison Cnty., 893 F.3d

877, 890 (6th Cir. 2018)).

20

requires the plaintiff to show the defendants acted with “deliberate indifference” to that

need. Farmer v. Brennan, 511 U.S. 825, 834 (1994).

For the purposes of argument, the Court will assume that Plaintiff’s hernia

constitutes a sufficiently serious medical need. However, he cannot establish that

Defendants acted with deliberate indifference.

“Deliberate indifference requires more than mere negligence, more even than

medical malpractice.” Mitchell v. Hininger, 553 F. App’x 602, 604 (6th Cir. 2014) (citing

Estelle v. Gamble, 429 U.S. 97, 106 (1976)). “It requires something akin to criminal

recklessness: The defendant must ‘know that inmates face a substantial risk of serious harm

and disregard that risk by failing to take reasonable measures to abate it.’” Mitchell,

553 F. App’x at 604 (quoting Farmer v. Brennan, 511 U.S. 825, 847 (1994) (cleaned up)).

When, as here, a prisoner has received some medical attention and the dispute concerns the

adequacy of the treatment provided, a prisoner cannot establish deliberate indifference

unless his treatment was “so grossly incompetent, inadequate, or excessive as to shock the

conscience or to be intolerable to fundamental fairness.” See Miller v. Calhoun Cnty.,

408 F.3d 803, 819 (6th Cir. 2005).

a. Physician Assistant Nathan Tollett

Plaintiff alleges that Defendant Tollett showed deliberate indifference to his hernia

by failing to recommend surgery or other interventions such as pain medication, an

21

ultrasound, wheelchair, or hernia belt that fit [Doc. 20 p. 7; Doc. 165 p. 6].6 Tollett

maintains that he treated Plaintiff appropriately [Doc. 170-1 ¶¶ 5–6].

Although the care Tollett provided was minimal, the record does not show that it

was grossly incompetent. On July 15, 2021—the only time Tollett performed an in-person

evaluation of Plaintiff—Tollett diagnosed Plaintiff with an inguinal hernia. He noted that

the hernia was small, reducible, and causing only intermittent pain. Based on that

evaluation and the other information available to him, he determined that surgery was not

indicated and that watchful waiting was appropriate. Tollett did not prescribe any pain

medication. However, medical records reflect that Plaintiff was taking over the counter

pain medication that he purchased through the commissary. Then on August 17, 2021, in

response to Plaintiff’s complaint that the hernia was “causing him pain and altering his

daily activities,” Tollett ordered Plaintiff a hernia belt which Plaintiff received the same

day. Dr. Jones, who examined Plaintiff’s hernia on August 24, 2021, affirmed Tollett’s

assessment that watchful waiting and a hernia belt were appropriate. Finally, Tollett

ordered Plaintiff a different sized hernia belt on February 16, 2022, after Plaintiff submitted

a sick call request regarding his lower body problems and “painful hernia.” Although

Plaintiff claims the two hernia belts that Tollett prescribed did not fit him, there is no

6 Plaintiff also claims that Tollett disregarded his possible allergy to anesthesia, thereby

placing him at risk of complications should he require emergency hernia surgery in the future

[Doc. 20 p. 7–8]. “An Eighth Amendment claim may be premised on deliberate indifference to

exposing an inmate to an unreasonable risk of serious harm in the future.” Dodson v. Wilkinson,

304 F. App’x 434, 439 (6th Cir. 2008) (citing Helling v. McKinney, 509 U.S. 25, 36 (1993)).

However, Plaintiff has provided no evidence in support of this possible allergy, and his

speculations are not competent summary judgment evidence.

22

evidence that Tollett was made aware of the problem or that Plaintiff ever complained. In

Tollett’s professional judgment, during his treatment of Plaintiff from July 15, 2021 to

February 16, 2022, Plaintiff did not need surgery, a wheelchair, an ultrasound, or other

intervention [Doc. 170-1 ¶ 6]. In short, the record reflects that Tollett provided a limited,

but reasonable amount of care based on his professional judgment that more was not

needed.

Plaintiff maintains that Tollett’s failure to recommend surgery was deliberately

indifferent because it was based on budget concerns [Doc. 20 p. 7]. Certainly, if a prison

official knowingly delays necessary medical treatment due to non-medical reasons, his

conduct in creating the delay constitutes deliberate indifference. Darrah v. Krisher,

865 F.3d 361, 372 (6th Cir. 2017). Here, however, Tollett determined surgery on Plaintiff’s

hernia was not necessary [Doc. 145-1 ¶ 7]. Therefore, Tollett’s decision not to recommend

surgical treatment, even if cost was a consideration, does not rise to the level of deliberate

indifference. See Winslow v. Prison Health Servs. (PHS), 406 F. App’x 671, 674 (3d Cir.

2011) (“[P]risoners do not have a constitutional right to limitless medical care, free of the

cost constraints under which law-abiding citizens receive treatment.”).

The Court recognizes that Plaintiff was not satisfied with the care he received.

However, his disagreement regarding the proper course of treatment does not rise to the

level of an Eighth Amendment violation. Darrah, 865 F.3d at 372; see also Ward v.

Kemen, No. 3:08-CV-P238-S, 2010 U.S. Dist. LEXIS 101763, at *8–9 (W.D. Ky. Sep. 24,

2010) (finding that inmate’s dissatisfaction with treatment did not amount to deliberate

23

indifference where prison doctor examined his hernia twice and having determined that it

was easily reducible, counseled him regarding proper exercise and referred him for

evaluation for a hernia belt). Because the treatment Tollett provided was adequate and was

not so grossly incompetent as to shock the conscience, Tollett is entitled to summary

judgment on this claim.

b. Health Services Administrator Katherine Campbell

Plaintiff’s deliberate indifference claim against Campbell fails because he has not

shown that she was personally involved in his medical care. During the relevant time

period, she did not render Plaintiff any care, was not responsible for his care, and did not

provide clinical supervision for any physicians who were responsible for his care

[Doc. 151-1 ¶¶ 3–4]. Contrary to Plaintiff’s assertion, there is no evidence that she refused

to process consults for non-emergency hernia surgeries for Plaintiff or for anyone else

[See Doc. 20 p. 11]. As Centurion’s administrative supervisor, Campbell did respond to

Plaintiff’s medical grievances and indicated that he was being treated appropriately

[See Doc. 145-2 p. 4, 28]. However, “[t]he ‘denial of administrative grievances or the

failure to act’ by prison officials does not subject supervisors to liability under

§ 1983.” Grinter v. Knight, 532 F.3d 567, 576 (6th Cir. 2008) (quoting Shehee v. Luttrell,

199 F.3d 295, 300 (6th Cir. 1999)).

Because Plaintiff has not shown that Campbell was personally involved in his

medical care, he cannot show that she was deliberately indifferent to his needs. Campbell

is entitled to summary judgment on this claim.

24

c. Warden Shawn Phillips

Like Campbell, Warden Phillips cannot be held liable for deliberate indifference

because he was not personally involved in Plaintiff’s medical care. Phillips is not

responsible for administering medical care to inmates [Doc. 141-1 ¶ 6]. And he did not

provide Plaintiff with any medical care or participate in any decision-making concerning

Plaintiff’s care [Id. ¶ 7]. Plaintiff argues that Phillips should be held liable because he is

responsible for “allowing” Centurion to systematically refuse to authorize non-emergency

hernia surgeries [Doc. 20 p. 11]. However, even assuming such a practice exists, Phillips

cannot be held liable as a supervisor based merely on his failure to act. See Bass, 167 F.3d

at 1048. Rather, to establish supervisory liability, Plaintiff must show that Phillips actively

participated in or encouraged unconstitutional conduct. Plaintiff has not made that

showing. Accordingly, Phillips is entitled to summary judgment on this claim.

2. Retaliation

Plaintiff claims that he had a First Amendment right to distribute the Notice, in

which he invited other inmates to join a class action lawsuit against prison conditions

[Doc. 20 p. 19]. He asserts that Phillips retaliated against him for exercising that right by

placing him in segregation for two days before ultimately releasing him back to the general

population [Id.].

To prevail on a First Amendment retaliation claim Plaintiff must show that (1) he

engaged in protected conduct; (2) a sufficiently serious adverse action was taken against

him that would deter a prisoner of “ordinary firmness” from continuing to engage in the

25

protected conduct; and (3) there is a causal connection between the first two elements—

that is, the adverse action was motivated at least in part by Plaintiff's protected

conduct. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999). The Sixth Circuit has

recognized that placement in administrative segregation is a sufficiently adverse action to

satisfy the second component of a retaliation claim. See id. (“In the prison context, an

action comparable to transfer to administrative segregation would certainly be adverse.”).

Phillips argues that Plaintiff’s conduct was not protected because it was

incompatible with legitimate prison objectives and even if it was protected, he is entitled

to qualified immunity [Doc. 142 p. 23–24]. The Court agrees.

Prisoners retain certain constitutional rights, such as the First Amendment right to

pursue non-frivolous grievances and civil rights lawsuits. Pell v. Procunier, 417 U.S. 817,

822 (1974); Noble v. Schmitt, 87 F.3d 157, 162 (6th Cir. 1996). However, those rights are

not absolute. A prison inmate’s speech is not protected by the First Amendment if it is

“inconsistent with his status as a prisoner or with the legitimate penological objectives of

the corrections system.” Pell, 417 U.S. at 822; see also Turner v. Safley, 482 U.S. 78,

89 (1987) (recognizing that prison officials may impinge on an inmate’s constitutional

rights if the official’s action “is reasonably related to legitimate penological interests”).

Here, Phillips contends that Plaintiff’s distribution of the Notice was inconsistent

with prison order and security, which are clearly legitimate penological goals [See

Doc. 142 p. 23]. Courts accord prison administrators “wide-ranging deference in the

adoption and execution of policies and practices that in their judgment are needed to

26

preserve internal order and discipline and to maintain institutional security.” Bell v.

Wolfish, 441 U.S. 520, 547 (1979) (citations omitted); see also Sandin v. Conner, 515 U.S.

472, 482 (1995) (“[F]ederal courts ought to afford appropriate deference and flexibility to

state officials trying to manage a volatile environment.”). “In the absence of substantial

evidence in the record to indicate that the officials have exaggerated their response to these

considerations, courts should ordinarily defer to their expert judgment in such matters.”

Pell, 417 U.S. at 827.

The Court affords considerable deference to the Warden’s determination that the

Notice, and Plaintiff’s efforts in promoting it, posed a security threat. Phillips, not the

Court, is in the best position to assess what presents a safety concern at BCCX. And the

text of the Notice provides support for Phillips’s view. Although it did not explicitly

encourage unrest, the Notice was clearly critical of Centurion and TDOC. It called for

collective action in the form of a class action. And it was “mass-distributed,” posted on

bulletin boards, and led to Plaintiff speaking with “hundreds” of other inmates. Given the

subject matter and scale upon which the Notice was apparently distributed, Phillips

reasonably anticipated a possible disruption.

Moreover, there is not substantial evidence in the record that Phillips’s response was

exaggerated. Having anticipated a disruption, the Warden was entitled to act preemptively

by removing Plaintiff from the general population before a riot or other unrest occurred.

See King v. Zamiara, 680 F.3d 686, 700 (6th Cir. 2012) (recognizing that maintaining order

in a prison “may require acting preemptively based on concerns that have not yet

27

materialized”). And the record does not suggest that Plaintiff’s two-day placement in

administrative segregation involved unduly restrictive conditions. Indeed, Plaintiff was

afforded ample opportunity to communicate with friends, his sister, and others outside the

prison regarding his situation.

Even if in retrospect the Warden’s response was exaggerated, Phillips is entitled to

summary judgment based on qualified immunity. Qualified immunity protects

governmental employees from individual liability as long as their conduct does not violate

clearly established constitutional rights. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

“Clearly established law is not defined at a high level of generality.” Vanderhoef v. Dixon,

938 F.3d 271, 278–79 (6th Cir. 2019). For a right to be clearly established, “[t]he contours

of the right must be sufficiently clear that a reasonable official would understand that what

he is doing violates that right.” Comstock v. McCrary, 273 F.3d 693, 702 (6th Cir. 2001)

(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Once a defendant raises the

defense of qualified immunity, the plaintiff has the burden of showing that it does not

apply. See Silberstein v. City of Dayton, 440 F.3d 306, 311 (6th Cir. 2006).

Here, Plaintiff makes the general claim that Phillips retaliated against him for

“asserting his right to freedom of speech” [Doc. 20 p. 28]. However, he has not pointed to

any legal authority showing that he had a clearly established constitutional right to engage

in the kind of inmate-to-inmate mass communication at issue here. The Court has not been

directed to any Sixth Circuit recognition of such a right. Indeed, the Supreme Court has

held that prisoners do not have an independent right to communicate with one another. See

28

Turner, 482 U.S. at 91–93 (upholding regulation restricting communication between

prisoners at different prisons).7 Accordingly, the Court concludes that Plaintiff’s right to

distribute the Notice—if he had such a right—was not clearly established.

Griffin v. Berghuis, 563 F. App’x 411 (6th Cir. 2014), which also involved

a prisoner’s § 1983 retaliation claim against a warden, is instructive here. There, the

plaintiff, Griffin, was removed from his elected position on the Warden’s Forum

and transferred to another prison after he wrote a letter to the warden’s supervisor. Id.

at 412–13. The letter—which was distributed to other inmates on the Forum—expressed

concern that prison staff would retaliate against Forum members for their efforts to improve

prison conditions. Id. Upholding summary judgment in favor of the warden, the Court of

Appeals found that the warden reasonably perceived the letter as a security risk. Id. at 418.

The Court reasoned that even though the letter did not expressly call for any unrest, it

showed an intent by Griffin and his fellow representatives on the Forum to “pit themselves

against the administration in a manner that would disrupt the legitimate objectives of the

institution.” Id. This was especially true given that there were other indications that Forum

members were engaging in collective action. Id. Ultimately, affording considerable

deference to prison officials, the Court found that the letter was not protected by the First

7 The Court also notes that practically speaking, “[p]ro se prisoners generally may not

bring class action lawsuits concerning prison conditions.” Dodson v. Wilkinson, 304 F. App’x

434, 438 (6th Cir. 2008); see also Ziegler v. Michigan, 90 F.App’x 808, 810 (6th Cir. 2004)

(finding “non-attorneys proceeding pro se cannot adequately represent a class”).

29

Amendment because it was inconsistent with legitimate prison objectives, and even if it

was protected, the warden was entitled to qualified immunity. Id. at 419.

Like the warden in Griffin, Phillips determined that an inmate’s distribution of

written materials that were critical of prison staff posed an inherent security threat. And

as in Griffin, this security threat was compounded by evidence of collective action.

Plaintiff did not act alone. He attests that other inmates assisted him by posting the Notice

on prison bulletin boards. And Plaintiff spoke with numerous inmates about joining his

potential lawsuit. Even if Phillips over-reacted to this situation by temporarily placing

Plaintiff in segregation, qualified immunity protects him—as it protected the warden in

Griffin—from liability for that mistake.

The Court notes that Phillips makes two additional arguments in favor of summary

judgment. First, he claims that Plaintiff’s conduct was not protected because it violated an

unwritten rule against prisoners posting flyers on bulletin boards [Doc. 142 p. 23–24]. He

also claims that Plaintiff cannot show causation, as required for a retaliation claim, because

even without the Notice, he would have placed Plaintiff in segregation to protect him from

inmates who were angry with him [Id. at 24]. However, Plaintiff attests that there is no

unwritten rule against prisoners posting on bulletin boards and that no inmates were angry

with him. Hence, there are genuine issues of material fact regarding the Warden’s

additional arguments.

30

Nevertheless, as discussed above, Phillips is entitled to summary judgment because

the security risk posed by Plaintiff’s distribution of the Notice rendered Plaintiff’s conduct

unprotected.

C. Official Capacity Claims

Finally, the Court turns to Plaintiff’s official capacity claims. “[A]n official-

capacity suit is, in all respects other than name, to be treated as a suit against the entity.”

Kentucky v. Graham, 473 U.S. 159, 166 (1985). To prevail on an official capacity claim

under § 1983, Plaintiff must show (1) that he suffered a deprivation of a federal right, and

(2) that the entity’s policy or custom was the moving force behind the deprivation. Id. at

165–66 (citations omitted).

1. Official Capacity Claims Against Centurion Defendants

Plaintiff has sued Campbell as Health Services Administrator and Rich as BCCX

Doctor for enforcing a policy of denying non-emergency hernia surgeries for financial

reasons [See Doc. 20 p. 26]. These claims are essentially against their employer, Centurion.

Centurion, a private company, may be sued because it serves a traditional state function of

providing medical care to inmates. See West v. Atkins, 487 U.S. 42, 56 (1988).

As evidence that Centurion maintains an unconstitutional policy of denying surgical

intervention for hernias until strangulation, Plaintiff attests that Tollett and Dr. Jones told

him about the policy. He also provides three affidavits from fellow inmates, attesting that

they suffer from a painful hernia and that unidentified members of Centurion medical staff

told them they were not eligible for surgery due to financial reasons [Doc. 165-2 p. 2–7].

31

In affidavits of their own, Campbell and Rich deny knowledge of such a policy [Doc. 158

¶ 22; Doc. 151-1 ¶ 24; see also Doc. 151-2 ¶ 6].

Regardless of whether there is a genuine dispute over the nature of Centurion’s

policy on hernia surgeries, Plaintiff cannot establish liability against Centurion because he

has not shown that he suffered a violation of his right to adequate medical care. As

discussed above, Tollett was not deliberately indifferent to his medical needs. And a

broader view of Plaintiff’s medical records shows that Centurion staff as a whole were not

deliberately indifferent. Plaintiff was seen multiple times by sick call nurses who referred

him to a provider for further medical attention. Following the diagnosis of his hernia,

Plaintiff received a second opinion from Dr. Jones. And there is no evidence that Plaintiff

was denied necessary care. Accordingly, Defendants Campbell and Rich are entitled to

summary judgment on the official capacity claims against them.

2. Official Capacity Claims Against TDOC Defendants

Plaintiff brings three official capacity claims against the TDOC defendants. Those

claims are essentially claims against the State of Tennessee. See Hix v. Tenn. Dep’t of

Corr., 196 F. App’x 350, 355 (6th Cir. 2006) (holding TDOC is equivalent of the “State”);

see also Pusey v. City of Youngstown, 11 F.3d 652, 657 (6th Cir. 1993) (explaining that in

an action for money damages against a state officer acting in an official capacity, “the

plaintiff seeks damages not from the individual officer, but from the entity from which the

officer is an agent”).

32

Plaintiff cannot obtain money damages against the State of Tennessee for two

reasons. First, “a State is not a person within the meaning of § 1983.” Will v. Mich. Dep’t

of State Police, 491 U.S. 58, 64 (1989); Hix, 196 F. App’x at 355 (holding TDOC is not a

“person” within the meaning of § 1983). Moreover, the Eleventh Amendment prohibits

suits against a state or its agencies in federal court for damages, unless Congress has

abrogated its immunity, or the state has expressly waived it. See Pennhurst State Sch. &

Hosp. v. Halderman, 465 U.S. 89, 99–101 (1984); Quern v. Jordan, 440 U.S. 332,

345 (1979). The State of Tennessee has not waived its immunity to suit under § 1983.

Berndt v. State of Tennessee, 796 F.2d 879, 881 (6th Cir. 1986). Thus, Plaintiff’s claims

for money damages against the TDOC Defendants in their official capacities must be

dismissed.

In addition to the bar posed by sovereign immunity, Plaintiff’s three official capacity

claims against the TDOC defendants fail on the merits.

First, Plaintiff claims that Strada, Williams, and Phillips should be liable in their

official capacities because they are complicit in Centurion’s alleged policy of denying non-

emergency hernia surgeries [Doc. 20 p. 11]. However, as discussed above, Plaintiff has

not shown that any defendant was deliberately indifferent to his medical needs.

Second, Plaintiff claims that Phillips should be liable in his official capacity for

retaliating against him for exercising his First Amendment rights. However, as discussed

above, Plaintiff has not established that his First Amendment rights were violated.

33

Third, Plaintiff claims that Strada as TDOC Commissioner and Williams as Chief

Medical Officer failed to provide him with access to his medical records [Id. at p. 24–25].

The Court previously dismissed this same Fourteenth Amendment due process claim

against the Centurion defendants [Doc. 98 p. 19]. Specifically, the Court found that

Plaintiff failed to state a cognizable claim because he did not allege that corrective

procedures were inadequate, as required for a due process claim [Id. at 12]. The Court also

found that Plaintiff’s claim failed because he does not have a constitutionally protected

interest in his medical records [Id. at 12–13]. Plaintiff’s due process claim against the

TDOC defendants fails for the same reasons.

Moreover, the record shows that corrective procedures were available to Plaintiff:

he filed a grievance regarding the medical records on August 17, 2021, Campbell

responded, and TDOC processed Plaintiff’s appeal up through the third level of review

[Doc. 191-2 p. 72–92]. That Plaintiff did not receive the answer he wanted does not render

the corrective process inadequate. Rice v. Mich. Dep’t of Corr., No. 1:07-cv-578, 2007

U.S. Dist. LEXIS 86465, at *13 (W.D. Mich. Oct. 10, 2007) (“[I]t is clear that Plaintiff

was able to use the grievance process. He simply disagreed with the reason for rejecting

his grievance, which states no claim of constitutional dimension.”).8

8 The Court notes that TDOC provided Plaintiff with a copy of his medical records in

connection with this lawsuit [See Doc. 139-3 p. 2].

34

Accordingly, as with his official capacity claims against the Centurion defendants,

Plaintiff’s official capacity claims against the TDOC defendants fail because he has not

established a violation of his constitutional rights.

IV. CONCLUSION

For the foregoing reasons, Defendants’ motions for summary judgment [Docs. 139,

141, 145, 148, 151] will be GRANTED. Defendants’ joint motion to dismiss [Doc. 176]

and all other pending motions [Docs. 175, 178, 182, 186, 187, 194, 195, 197] will be

DENIED as MOOT, and this action will be DISMISSED without prejudice.

AN APPROPRIATE JUDGMENT ORDER WILL ENTER.

ENTER:

s/ Thomas A. Varlan

UNITED STATES DISTRICT JUDGE

35