# Montgomery v. Wellpath Medical

> District Court, M.D. Tennessee · February 10, 2020

URL: https://www.frixlaw.com/law-library/cases/10436258

## Case

- **Court:** District Court, M.D. Tennessee
- **Decided:** February 10, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10436258

## How later opinions describe it (automated extraction)

- finding that corporate provider of medical services to jail inmates is “clearly a state actor” under § 1983 and, like the county that operates the jail, can only be liable for harm directly caused by the execution of its policy
- finding combination of diabetes and foot condition to present serious medical need

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

GARY MONTGOMERY, )
)
Plaintiff, )
)
v. ) NO. 3:19-cv-00675
)
WELLPATH MEDICAL, ET AL., )
)
Defendants. )

MEMORANDUM OPINION
Gary Montgomery, a pretrial detainee in the custody of the Davidson County Sheriff’s
Office in Nashville, Tennessee, has filed a pro se complaint under 42 U.S.C. § 1983 (Doc. No. 1)
and an application to proceed in forma pauperis (IFP). (Doc. No. 2.) He has also filed a Motion to
Appoint Counsel. (Doc. No. 3.)
After the Court issued an Order notifying Plaintiff that his IFP application was deficient
(Doc. No. 7), Plaintiff cured the deficiency by filing an amendment to his application. (Doc. No.
8.)
I. Application to Proceed IFP
Under the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915(a), a prisoner bringing
a civil action may apply for permission to file suit without prepaying the filing fee of $350.00
required by 28 U.S.C. § 1914(a). Because it is apparent from Plaintiff’s amended IFP application
that he lacks the funds to pay the entire filing fee in advance, his application (Doc. No. 8) will be
granted by Order entered contemporaneously herewith.
II. Initial Review of the Complaint
A. PLRA Screening Standard
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court must dismiss any IFP complaint that is
facially frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks

monetary relief against a defendant who is immune from such relief. Similarly, 28 U.S.C. § 1915A
provides that the Court shall conduct an initial review of any prisoner complaint against a
governmental entity, officer, or employee, and shall dismiss the complaint or any portion thereof
if the defects listed in Section 1915(e)(2)(B) are identified. Under both statutes, this initial review
of whether the complaint states a claim upon which relief may be granted asks whether it contains
“sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face,”
such that it would survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Hill
v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. Applying this standard, the Court must view the complaint in the light most
favorable to Plaintiff and 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)). Furthermore, pro se pleadings 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) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
However, pro se litigants are not exempt from the requirements of the Federal Rules of Civil
Procedure, Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989), nor can the Court “create a claim
which [a plaintiff] has not spelled out in his pleading.” Brown v. Matauszak, 415 F. App’x 608,
613 (6th Cir. 2011) (quoting Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir.
1975)).
B. Section 1983 Standard

Plaintiff seeks to vindicate alleged violations of his federal constitutional rights under 42
U.S.C. § 1983. Section 1983 creates a cause 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
Section 1983 claim, Plaintiff must allege two elements: (1) a deprivation of rights secured by the
Constitution or laws of the United States, and (2) that the deprivation was caused by a person
acting under color of state law. Carl v. Muskegon Cty., 763 F.3d 592, 595 (6th Cir. 2014).
C. Allegations and Claims
Plaintiff alleges that his incarceration in the Davidson County Jail began on May 5, 2016,
at which time he received an intake medical screening that did not include dental screening. (Doc.

No. 1 at 7.)
On June 21, 2017, Plaintiff received a dental checkup pursuant to his request. He alleges
that he had an obviously broken tooth that was sensitive to heat and cold and requested that it be
repaired with a crown. (Id.) He also requested teeth cleaning at this appointment. Both services
were refused, and a dental technician told Plaintiff that “[W]e don’t clean teeth here, we only pull
them.” (Id.) Plaintiff was offered the option of tooth extraction but declined. Knowing that
extraction was the only treatment offered, Plaintiff “continued to tolerate the sensitivity
discomfort” throughout 2018. (Id. at 7–8.)
On June 3, 2019, Plaintiff received his second dental examination at the Jail. At this visit,
“it was noted that the gaps in Plaintiff’s gums were growing larger and that they were bleeding.
[The] technician also noted excessive calcified tarter build up present.” (Id. at 8.) Plaintiff again
requested that his teeth be cleaned, his gums be treated, and that a crown be put on his broken tooth

to deal with the sensitivity. (Id.) A technician, Jenny Denest, responded “[T]his is a short term
facility and we only offer limited services, but you can have services when you go to prison.” (Id.)
No x-rays were taken and no dental services were performed at the Jail. (Id.)
After having his request for a higher quality mattress due to chronic back issues denied,
Plaintiff began experiencing excruciating back pain in mid-April 2019, which made sleeping
nearly impossible. (Id.) Despite filing several sick call requests and telling several nurses about his
pain, Plaintiff was not seen by medical until June 18, 2019, when a nurse practitioner prescribed a
muscle relaxer. (Id.) This medication was not delivered prior to Plaintiff leaving to attend court on
June 19 and 20, and he did not receive his first dose until the night of June 21, 2019. (Id. at 8–9.)
After Plaintiff took five daily doses of this medication, his order of additional medication was

delayed for nearly two weeks because the first prescription had expired. (Id. at 8.)
Beginning just prior to this timeframe, in late March 2019, Plaintiff requested nail cutting
service. (Id.) After a month’s delay, Plaintiff was provided the opportunity to cut his own nails on
April 27, 2019. However, Lt. Conrad ordered the staff and nurses to “keep Plaintiff’s hands
connected to a belly chain while cutting nails,” which made the task of cutting fingernails difficult
and made it impossible for Plaintiff to reach his toenails. (Id.) Plaintiff alleges that his is a “known
diabetic and must take special care of his feet.” (Id.) When he experiences an ingrown toenail, he
must dig the toenail out of his skin, a process which is more difficult when the toenails are longer
and which “initially often causes bleeding,” “a dangerous and serious medical condition for a
diabetic.” (Id.) Plaintiff states that since the nurses refuse to dig his ingrown toenails out, “I must
take care of it myself.” (Id.) He alleges that nurses have advised him that Lt. Conrad “advises his
staff and other lieutenants not to allow the nurses assigned to nail cutting service into Plaintiff’s
building[,] causing long delays.” (Id.) At the time he filed his complaint, Plaintiff was “in pain due

to the ingrown nails” and he had put in at least four nail-cutting requests over the prior 6–7 weeks,
without response. (Id.)
Plaintiff has sued Wellpath Medical, the current health and dental care provider for the
Jail; Correct Care Solutions, the prior health and dental care provider; Davidson County; Davidson
County Sheriff’s Department; Harold Taylor, the CDM Facility Administrator responsible for all
staff, programs, and care delivered at the facility; Tony Wilkes, the Chief of Corrections in charge
of all jail facilities; Chris Brown, the MCC Facility Administrator in charge of the housing unit
where Plaintiff currently resides and all staff, programs, and care delivered at that facility; Lt.
Thomas Conrad, a correctional officer; M. Stephens, the Health Services Administrator in charge
of all health care and dental staff at the Jail; S. Price, the Contract Coordinator Monitor responsible

for overseeing health and dental care providers; Jenny Denest, a dental technician employed by
“the provider,” Wellpath Medical; Unknown Nurse Does 1–5; and Unknown Dental Technician
Does 1–3. (Doc. No. 1 at 6–7.) Plaintiff claims violations of his rights under the Eighth and
Fourteenth Amendments, 42 U.S.C. §§ 1985 and 1986, and the Americans with Disabilities Act,
as well as state law claims of negligence, breach of contract, and conspiracy. (Id. at 5.) He seeks
declaratory and injunctive relief, as well as an award of compensatory and punitive damages. (Id.
at 11–13.)
D. Analysis
1. Deliberate Indifference Claims
Plaintiff claims violations of his right to constitutionally adequate medical and dental care
under the Eighth and Fourteenth Amendments to the U.S. Constitution. As a pretrial detainee,

Plaintiff’s § 1983 claim of deliberate indifference to medical needs arises under the Fourteenth
Amendment. Winkler v. Madison Cty., 893 F.3d 877, 890 (6th Cir. 2018) (quoting Phillips v.
Roane Cty., 534 F.3d 531, 539 (6th Cir. 2008)). This claim is comprised of an objective and a
subjective component. “The objective component requires the plaintiff to show that the medical
need at issue is ‘sufficiently serious.’” Richmond v. Huq, 885 F.3d 928, 938 (6th Cir. 2018)
(quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). “As the Supreme Court explained in
Farmer, ‘[T]he inmate must show that he is incarcerated under conditions posing a substantial risk
of serious harm.’” Brown v. Bargery, 207 F.3d 863, 867 (6th Cir. 2000). To satisfy the subjective
component, a prison official “must both be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he [or she] must also draw the inference.” Id. at

939 (quoting Farmer, 511 U.S. at 837). Deliberate indifference “entails something more than mere
negligence,” Farmer, 511 U.S. at 835, but can be “satisfied by something less than acts or
omissions for the very purpose of causing harm or with knowledge that harm will result.” Id.
A serious medical need is “one that has been diagnosed by a physician as mandating
treatment or one that is so obvious that even a lay person would easily recognize the necessity for
a doctor’s attention.” Harrison v. Ash, 539 F.3d 510, 518 (6th Cir. 2008). “Dental needs fall into
the category of serious medical needs because dental care is one of the most important needs of
inmates.” Flanory v. Bonn, 604 F.3d 249, 253 (6th Cir. 2010) (quoting McCarthy v. Place, 313 F.
App’x 810, 814 (6th Cir. 2008)) (internal quotation marks omitted). “Nevertheless, not all dental
problems constitute serious medical needs. Rather, ‘[a] cognizable claim regarding inadequate
dental care, like one involving medical care, can be based on various factors, such as the pain
suffered by the plaintiff, the deterioration of the teeth due to a lack of treatment, or the inability to
engage in normal activities.’” McCarthy, 313 F. App’x at 814 (quoting Chance v. Armstrong, 143

F.3d 698, 703 (2d Cir. 1998)); see also Kyles v. Care & Comfort Comm., No. 18-cv-2003, 2019
WL 480519, at *2 (E.D. Wis. Feb. 7, 2019) (noting that “[s]everal courts have held that dental pain
accompanied by various degrees of attenuated medical harm may constitute an objectively serious
medical need”; finding that inmate who “does not allege that he suffered any pain or that the delay
in getting his teeth cleaned caused him any harm” does not present a serious need). In McCarthy,
the Sixth Circuit found that the inmate adequately alleged a serious medical need based on a cavity
and “significant pain and discomfort” that went untreated for more than seven months, resulting
in difficulty eating solid foods. 313 F. App’x at 814. Similarly, the Sixth Circuit in Flanory found
that although a temporary deprivation of hygiene items would not satisfy the objective component
of a medical needs claim, the complete deprivation of toothpaste for 337 days resulting in

toothache, periodontal gum disease, and the need to extract a tooth was sufficient to establish a
cognizable claim for denial of necessary care, as it resulted in physical injury that was more than
de minimis. 604 F.3d at 254.
Here, the alleged need for prophylactic teeth cleaning and a crown to treat one tooth’s
sensitivity to cold and heat is not sufficiently serious to allow the inference that denial of those
services posed a substantial risk of serious harm. Brown, 207 F.3d at 867. Plaintiff does not allege
that he was denied dental hygiene products as in Flanory, or that he suffered any tooth decay or
pain as a result of the denial of a professional cleaning. Regarding the alleged need for a crown to
remedy sensitivity in his tooth, Plaintiff states that this sensitivity merely produced discomfort
which was tolerable enough that he did not request dental services after a crown was first denied
in 2017. (Doc. No. 1 at 7–8.) In the absence of allegations demonstrating his objectively serious
need for treatment, Plaintiff’s claim that it was unconstitutional to provide “just cursory
examinations or extractions” (id. at 10), and his request that the Jail be enjoined to “institute a plan

where every inmate held over one year get[s] a minimum of teeth cleaning” (id. at 12), must fail.
See Wishneski v. Dona Ana Cty., No. CV 08-0348 MCA/WPL, 2009 WL 10708582, at *4
(D.N.M. Feb. 19, 2009), report and recommendation adopted as modified, No. 08CV348
MCA/WPL, 2009 WL 10708217 (D.N.M. May 7, 2009) (“Wishneski does not have a
constitutional right to prophylactic care . . . and neither Wishneski’s complaint nor his subsequent
filings indicate that he was harmed by the Detention Center’s alleged policy of treating cavities by
extraction only. The record does not reflect that Wishneski had any teeth pulled as a result of the
policy or that he was otherwise adversely affected by it.”). Accordingly, no viable constitutional
claim is stated with respect to the two unnamed dental technicians’ denial of Plaintiff’s requests
for routine teeth cleaning and a crown.

However, at this initial stage of the proceedings, and even though Plaintiff does not allege
pain or difficulty eating or sleeping due to his dental condition, the Court finds that an objectively
serious medical need is colorably claimed based on the dental technician’s observation of “gaps in
Plaintiff’s gums [that] were growing larger and . . . were bleeding” at his June 3, 2019
examination.1 (Id. at 8.) Insofar as such symptoms may be indicative of an infection, they present
a need for medical attention that would be obvious to a layperson. Harrison, 539 F.3d at 518; see
Blackmore v. Kalamazoo Cty., 390 F.3d 890, 899 (6th Cir. 2004) (“the test for deliberate

1 This observation, as well as the observation of excessive tartar buildup, appears to have been made
by a third unnamed dental technician. However, Plaintiff attributes the denial of necessary care exclusively
to Defendant Denest. (See Doc. No. 1 at 8.)
indifference is whether there exists a substantial risk of serious harm, and does not require actual
harm to be suffered”) (emphasis in original; internal citation and quotation marks omitted). In
response to Plaintiff’s request for treatment of his gums, Defendant Jenny Denest is alleged to
have responded, “This is a short term facility and we only offer limited services, but you can have

services when you go to prison. . . . See you again next year.” (Doc. No. 1 at 8.) Denest is thus
alleged to have acknowledged that treatment was appropriate, but to have denied treatment based
on the Jail’s policy of offering only limited dental services. Accordingly, the Court finds that
Plaintiff has stated a colorable claim of deliberate indifference to serious medical needs based on
the failure to provide dental treatment after June 3, 2019. This claim will be allowed to proceed
against Defendant Denest.
Furthermore, because Denest’s refusal to provide services reflects a policy of denying such
services based on the Jail being “a short term facility,” and because it is not clear at this point if
this policy is put forward by the county or by Denest’s corporate employer, or both, this claim will
also proceed against Davidson County and Wellpath Medical.2 See Starcher v. Corr. Med. Sys.,

Inc., 7 F. App’x 459, 465 (6th Cir. 2001) (finding that corporate provider of medical services to
jail inmates is “clearly a state actor” under § 1983 and, like the county that operates the jail, can
only be liable for harm directly caused by the execution of its policy).
Plaintiff’s allegation that he began experiencing excruciating back pain in the middle of
April, 2019, and filed several sick call requests and complained to “several nurses” but was not
seen until June 18, 2019, supports a colorable deliberate indifference claim against “Unknown
Nurse Does 1–5.” He alleges that this pain was “equivalent to having a kidney stone” and “made

2 The claim will not proceed against Correct Care Solutions, “the prior health and dental care
provider . . . in 2016,” which Plaintiff believes to have subsequently merged with the current provider,
Wellpath Medical. (Doc. No. 1 at 6.)
sleeping nearly impossible.” (Doc. No. 1 at 8.) Nevertheless, he was not seen by medical staff or
prescribed a muscle relaxant until two months later, when a nurse practitioner wrote the
prescription to start the same day and “even made a phone call for someone to bring the
medication” to Plaintiff. (Id.) “Where the alleged constitutional violation is a delay in medical

treatment for a serious medical need, a slightly different analysis is employed to determine whether
a plaintiff has satisfied the objective element of the test.” Kimbrough v. Core Civic, No. 1:19-cv-
00048, 2019 WL 2501558, at *2 (M.D. Tenn. June 17, 2019). In such cases:
[The] court must examine the effect of the delay to ascertain whether the
deprivation was sufficiently grave that it posed a substantial risk of serious harm.
Napier v. Madison County, 238 F.3d 739, 742 (6th Cir. 2001). Where the delay-of-
treatment claim involves an injury that is not obvious, a plaintiff must submit
verifying medical evidence showing the detrimental effect of the delay. Blackmore
v. Kalamazoo County, 390 F.3d 890, 898 (6th Cir. 2004) (citing Napier, 238 F.3d.
at 742-43). Where the delay-of-treatment claim involves an obvious injury, a
plaintiff makes the necessary showing by demonstrating that he experienced the
need for medical treatment and that the need was not addressed within a reasonable
time. Id. at 900. Where the injury is evident, the detrimental effect of the delay is
not at issue because it is the delay itself which creates the substantial risk of harm.
Id. at 890.

Kimbrough, 2019 WL 2501558, at *2.
Here, accepting Plaintiff’s allegations as true, he had “documented chronic back issues”
and began experiencing excruciating pain following a change in housing and the subsequent denial
of his request for a higher quality mattress. (Doc. No. 1 at 8.) His complaint suggests that he
received no treatment whatsoever for this exacerbation of his chronic pain until two months had
passed, during which time he sought medical attention on multiple occasions. Accordingly, this
claim involves an obvious injury, and Plaintiff’s allegations “demonstrat[e] that he experienced
the need for medical treatment and that the need was not addressed within a reasonable time.”
Kimbrough, 2019 WL 2501558, at *2. Plaintiff therefore states a colorable deliberate indifference
claim against Unknown Nurse Does 1–5. See also Smith v. Knox Cty. Jail, 666 F.3d 1037, 1040
(7th Cir. 2012) (“Even a few days’ delay in addressing a severely painful but readily treatable
condition suffices to state a claim of deliberate indifference.”).
Finally, Plaintiff states a nonfrivolous deliberate indifference claim by alleging that, despite
being “a known diabetic [who] must take special care of his feet,” he was denied the opportunity

to trim his toenails often enough to keep them from growing into the skin of his toes, and was
denied help from the nurses in removing the ingrown toenails from his skin, leaving him to do this
himself and resulting in bleeding. (Doc. No. 1 at 9.) For purposes of initial review, the Court finds
that Plaintiff alleges a serious medical need for diabetic footcare. See Hall-Bey v. Ridley-Turner,
No. 2:04-cv-69-RLY-WGH, 2006 WL 1994795, at *9 (S.D. Ind. July 14, 2006), aff’d, 233 F.
App’x 572 (7th Cir. 2007) (finding combination of diabetes and foot condition to present serious
medical need). He adequately alleges Lt. Conrad’s deliberate indifference in refusing to allow
access to nail cutting services (or allowing access to a nail cutting instrument only while Plaintiff
is shackled and therefore unable to cut his own toenails) as well as the nurses’ deliberate
indifference in refusing to treat his painful ingrown toenails. (Doc. No. 1 at 9.) See Woodward v.

Cloninger, No. 3:18-cv-220-FDW, 2018 WL 4052170, at *1–2 (W.D.N.C. Aug. 24, 2018)
(allowing diabetic detainee’s deliberate indifference claim to proceed based on nurses’ alleged
refusal to dress and bandage his bleeding toes); Bovin Belskis v. DT Developers, Inc., No. 1:15-
cv-00091-JAW, 2016 WL 5395833, at *13 (D. Me. Sept. 27, 2016) (declining to dismiss claim
against nurses at pleading stage, despite lack of specificity in allegations against individual nurses;
finding it reasonable to infer that each nurse was deliberately indifferent based on allegation of
delay in proper wound care for diabetic inmate). These claims will be allowed to proceed for
further development.
2. Other Claims
Plaintiff claims that the failure to treat his dental and other medical needs also amount to
negligence under state law. (Doc. No. 1 at 10–13.) These state law negligence claims will be

allowed to proceed under the Court’s supplemental jurisdiction. See 28 U.S.C. § 1367(a) (“[I]n
any civil action of which the district courts have original jurisdiction, the district courts shall have
supplemental jurisdiction over all other claims that are so related to claims in the action within
such original jurisdiction that they form part of the same case or controversy. . . .”).
However, Plaintiff’s isolated, conclusory statements that Defendants’ conduct amounted
to “a conspiracy in violation of state and federal law, including 42 U.S.C. § 1985”; a breach of a
contract to which Plaintiff is a third-party beneficiary; an equal protection violation; and a violation
of the Americans with Disabilities Act (Doc. No. 1 at 10–12)––without any factual allegations to
support the existence of a conspiracy, contractual right, or discriminatory treatment––are not
sufficient to state a plausible claim under any of these theories or statutes. Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (“A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged. . . . Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”). All such claims will therefore be dismissed.
3. Proper Defendants
As stated above, Plaintiff’s deliberate indifference claims will proceed against Defendants
Davidson County and Wellpath Medical, as well as the individual Defendants Denest, Conrad, and
Unknown Nurse Does 1–5 (all of whom are sued in their individual capacity only (Doc. No. 1 at
6, 7)). These claims are not plausibly stated against Correct Care Solutions and Unknown Dental
Technicians 1–3, and they will therefore be dismissed from this action.
Furthermore, “the Davidson County Sheriff’s Office is not a suable entity under § 1983.”
French v. Davidson Cty. Sheriff’s Office, No. 3:18-cv-00073, 2018 WL 1763207, at *2 (M.D.

Tenn. Apr. 12, 2018) (Campbell, J.) (citing Mathes v. Metro. Gov’t of Nashville & Davidson Cty.,
No. 3:10-cv-0496, 2010 WL 3341889, at *2 (M.D. Tenn. Aug. 25, 2010) (“[F]ederal district courts
in Tennessee have frequently and uniformly held that police departments and sheriff's departments
are not proper parties to a § 1983 suit.”) (collecting cases)). As to Defendants Harold Taylor, Tony
Wilkes, Chris Brown, M. Stephens, and S. Price, although these individuals are named at the outset
of the complaint as responsible parties by virtue of their administrative or oversight responsibilities
(Doc. No. 1 at 6–7), they are not alleged to have been personally involved in any wrongdoing and
must therefore be dismissed from the action. Green v. Correct Care Sols., No. 3:14-cv-01070, 2014
WL 1806997, at *4 (M.D. Tenn. May 7, 2014) (citing cases) (“It is a basic pleading essential that
a plaintiff attribute factual allegations to particular defendants. Where a person is named as a

defendant without an allegation of specific conduct, the complaint is subject to dismissal as to that
defendant, even under the liberal construction afforded to pro se complaints.”); see also Murphy
v. Grenier, 406 F. App’x 972, 974 (6th Cir. 2011) (“Personal involvement is necessary to establish
section 1983 liability.”) (citing Gibson v. Matthews, 926 F.2d 532, 535 (6th Cir. 1991)); Sweat v.
Sanders, No. 5:18-cv-557-REW, 2019 WL 3240018, at *3 (E.D. Ky. July 17, 2019) (citing
Bellamy v. Bradley, 729 F.2d 416, 420 (6th Cir. 1984)) (“[Section] 1983 supervisor liability
requires culpable conduct by the individual supervisor. It is not enough that a supervisor have a
place or position of authority. Rather, he must actively engage in behavior leading to the wrong;
inaction does not suffice.”).
III. Motion to Appoint Counsel
Plaintiff has filed a motion to appoint counsel to represent him in this matter. (Doc. No. 3.)

An indigent plaintiff in a civil action, unlike a criminal defendant, has no constitutional right to
the appointment of counsel. Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir. 2003); Lavado v.
Keohane, 992 F.2d 601, 605 (6th Cir. 1993). Rather, the appointment of counsel is a “privilege
justified only by exceptional circumstances.” Lavado, 992 F.2d at 606 (citations omitted). Whether
to appoint counsel for an indigent plaintiff in a civil action is a matter within the discretion of the
district court. Id. at 604. In making the determination of whether the circumstances warrant the
appointment of counsel, courts are to consider the type of case presented and the abilities of the
plaintiff to represent himself. Id. at 606 (citations omitted). Evaluation of these factors in turn
“generally involves a determination of the complexity of the factual and legal issues involved.” Id.
(internal quotation marks and citation omitted).

In this case, the issues are relatively straightforward, and Plaintiff has presented his claims
ably. Because no exceptional circumstances exist to justify the appointment of counsel, Plaintiff’s
motion will be denied without prejudice to renewal if warranted by future developments in the
case.
IV. Conclusion
In light of the foregoing, Plaintiff’s application to proceed IFP will be granted and the filing
fee will be assessed by separate Order. This action will be allowed to proceed against Defendants
Davidson County and Wellpath Medical, as well as the individual Defendants Denest, Conrad, and
Unknown Nurse Does 1–5. Defendants Davidson County Sheriff’s Office, Correct Care Solutions,
Unknown Dental Technicians 1—3, Harold Taylor, Tony Wilkes, Chris Brown, M. Stephens, and
S. Price will be dismissed from the action.
An appropriate order will enter.

alla CRENSHAW, J =|
CHIEF UNITED STATES DISTRICT JUDGE

15

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10436258. Public record. Not legal advice.