Kelly v. O'Toole

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

TIMOTHY E. KELLY, )

)

Plaintiff, )

)

v. ) Case No. 3:19-cv-00796

) Judge Trauger

MOLLY O’TOOLE, et al., )

)

Defendants. )

MEMORANDUM

Timothy E. Kelly, an inmate of the DeBerry Special Needs Facility (DSNF) in Nashville,

Tennessee, has filed a pro se civil rights complaint (Doc. No. 1) and an application for leave to

proceed in forma pauperis (IFP). (Doc. No. 7.) He has also filed supplements to these filings. (Doc.

Nos. 10–12.)

The case is before the court for a ruling on the plaintiff’s IFP 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 IFP

Under the 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).

The plaintiff’s IFP application (Doc. No. 7), as supplemented by his submission of a second

application and inmate trust fund account statement (Doc. No. 11), reveals that he currently has no

available funds and no recent activity in his inmate account.1 Because it is apparent from the

plaintiff’s IFP application that he lacks the funds to pay the entire filing fee in advance, his

application (Doc. No. 7) will be granted by separate order.

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, Section 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 the plaintiff and, again, must 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,

1 Despite being printed on November 15, 2019 and reflecting his incarceration at DSNF, the

plaintiff’s account printout shows no activity since November 2018, when he was still incarcerated at the

Northwest Correctional Complex. (Doc. No. 11-1 at 2.)

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

The plaintiff seeks to vindicate alleged violations of his federal constitutional rights under

42 U.S.C. § 1983.2 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, the 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

The plaintiff has filed what amounts to an amended complaint (Doc. No. 10) and a

supporting declaration (Doc. No. 12), in which he repeats the allegations of his original complaint,

claiming that his constitutional rights were violated beginning in July 2019, one month after his

2 The plaintiff’s original complaint is designated for filing as a “Title 18 United States Code [§] 241

Conspiracy against rights” (Doc. No. 1 at 1), but his supplement, which the court construes below as an

amended complaint, is properly designated under 42 U.S.C. § 1983. (Doc. No. 10 at 1.)

arrival at DSNF, by defendants Molly O’Toole and Christianah Ajenege. He alleges that in July

and September of 2019, defendant O’Toole, a psychiatrist, wrote orders for the plaintiff to receive

intramuscular injections of Risperdal and Benadryl “by force,”3 and that defendant Ajenege, a

registered nurse, thereafter administered those injections by force using a 20-gauge syringe over

the plaintiff’s objections that he did not consent and did not want the injections. (Doc. No. 10 at

1–3.) The plaintiff alleges that these forcible injections produced mental distress as well as severe

physical pain in his arms, causing him to lose sleep because he sleeps on his side. (Id. at 2.) He

alleges that he was never appointed a conservator, that defendant O’Toole knew that she did not

have the authority to order the forcible injections, and that defendant Ajenege knew that the

plaintiff did not want the injections she administered. (Id. at 2–3.) The plaintiff claims that these

actions violated his rights under the Eighth and Fourteenth Amendments. (Id. at 2.)

As relief for the claimed violation of his rights, the plaintiff seeks an award of $700,000.00

from defendants O’Toole and Ajenege, and an order enjoining O’Toole from continuing to provide

mental health care at state facilities. (Id. at 3.)

D. Analysis

As an initial matter, the plaintiff’s amended complaint (Doc. No. 10) was properly filed

without leave of court before the original complaint had been served on any defendant. Fed. R.

Civ. P. 15(a)(1). The amended complaint is now “the legally operative complaint” that controls

this case, superseding the original complaint and the supplement thereto (Doc. No. 3). Parry v.

Mohawk Motors of Michigan, Inc., 236 F.3d 299, 306 (6th Cir. 2000) (citing, e.g., In re Atlas Van

3 As support for his subsequently filed motion for summary judgment, the plaintiff has submitted a

copy of Dr. O’Toole’s July 2019 order for forcible injections of Risperdal Consta and Benadryl (Doc. No.

8 at 5), and Nurse Ajenege’s written recognition that he objected to receiving an injection in September

2019. (Id. at 8.) “Risperdal Consta is an antipsychotic medication” in injection form, “used to treat

schizophrenia and symptoms of bipolar disorder.” https://www.drugs.com/risperdal_consta.html (last

visited January 21, 2020).

Lines, Inc., 209 F.3d 1064, 1067 (8th Cir. 2000)). Accordingly, while the plaintiff’s original

pleadings named a third defendant, “Michelle the Warden of Treatment,” and alleged the plaintiff’s

solitary confinement for more than 15 days (Doc. No. 1 at 1; Doc. No. 3 at 1–2), his exclusion of

this defendant and allegation from the amended complaint is controlling. The Clerk will be directed

to dismiss defendant “Michelle (l/n/u), Warden of Treatment” from the case.

As to the amended complaint against Dr. O’Toole and Nurse Ajenege, the court finds that

the plaintiff states a colorable due process claim based on his allegations that these defendants

ordered and administered antipsychotic medication by use of force, without the plaintiff’s consent.

While “[i]nvoluntary commitment to a mental institution substantially restricts individual liberty

in many respects, one of which is allowing the state to subject the individual to compulsory

treatment,” “[c]ertain freedoms . . . survive incarceration.” Noble v. Schmitt, 87 F.3d 157, 161 (6th

Cir. 1996) (citing Vitek v. Jones, 445 U.S. 480, 491–92 (1980)). “The Supreme Court has held that

individuals in state custody enjoy protectable liberty interests to be free from bodily restraint, and

to refuse medical treatment such as the administration of antipsychotic drugs.” Id. (citing, e.g.,

Washington v. Harper, 494 U.S. 210, 221–22 (1990) (“respondent possesses a significant liberty

interest in avoiding the unwanted administration of antipsychotic drugs under the Due Process

Clause of the Fourteenth Amendment”)). The plaintiff’s claim that he was forcibly injected with

antipsychotic and other medications by defendant Ajenege pursuant to defendant O’Toole’s orders

will be allowed to proceed for further development.

III. Conclusion

In light of the foregoing, the 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 O’Toole and Ajenege. Defendant “Michelle (/n/u), Warden of Treatment” will be

dismissed from the action.

An appropriate order will enter. ff

Aleta A. Trauger

United States District Judge