Bumpus v. Howard

IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

PATRICK L. BUMPUS, )

a/k/a/ Zakiya ‘Kondo’ Miwinyi, )

)

Plaintiff, ) NO. 3:19-cv-01081

)

v. ) JUDGE RICHARDSON

)

ROBERT HOWARD, et al., )

)

Defendants.

MEMORANDUM OPINION

Plaintiff Patrick L. Bumpus, a state prisoner at the Trousdale Turner Correctional Center

(“TTCC”) in Hartsville, Tennessee, filed a pro se complaint under 42 U.S.C. § 1983 against TTCC

Assistant Warden James Deal, Chief of Security Robert Howard, Dr. Terence Leveck, Nurse

Johnson, and medical provider Walter. (Doc. No. 1). Plaintiff also filed an application to proceed

in this court without prepaying fees and costs (Doc. Nos. 2, 6), and a motion to stay this action for

three months (Doc. No. 7). The case is before the Court for a ruling on the application and pending

motion, and an initial review of the Complaint pursuant to the Prison Litigation Reform Act

(“PLRA”), 28 U.S.C. § 1915(e)(2) and 42 U.S.C. § 1997e.

I. APPLICATION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

The Court may authorize a prisoner to file a civil suit without prepaying the filing fee. 28

U.S.C. § 1915(a). Plaintiff’s application to proceed as a pauper and certified trust account

statement reflect that he cannot pay the full filing fee in advance. (See Doc. No. 6).1 Accordingly,

1 Plaintiff originally filed an incomplete application to proceed in forma pauperis (Doc. No. 2), but refiled a

complete application (Doc. No. 6) pursuant to an Order of the Court (Doc. No. 5).

the application will be granted and the $350.00 filing fee will be assessed as directed in the

accompanying Order. 28 U.S.C. § 1915(b)(1).

II. INITIAL REVIEW OF THE COMPLAINT

Under the PLRA, the court must review and dismiss any prisoner complaint filed in forma

pauperis if it is frivolous or malicious, fails to state a claim, or seeks monetary relief from an

immune defendant. 28 U.S.C. §§ 1915(e)(2).

A. STANDARD OF REVIEW

To determine whether a complaint “fails to state a claim on which relief may be granted”

under the PLRA’s screening requirements, the court applies the same standard as under Rule

12(b)(6) of the Federal Rules of Civil Procedure. Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir.

2010). The court must (1) view the complaint in the light most favorable to the plaintiff and (2)

take all well-pleaded factual allegations as true unless they are entirely without credibility.

Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011); 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)). An

assumption of truth does not extend to legal conclusions or “‘naked assertion[s]’ devoid of ‘further

factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 557 (2007)). The court determines whether those factual allegations

“plausibly suggest an entitlement to relief,” Williams, 631 F.3d at 383 (quoting Iqbal, 556 U.S. at

681 (2009)), that rises “above the speculative level,” Twombly, 550 U.S. at 555.

“Pro se complaints are to be held to less stringent standards than formal pleadings drafted

by lawyers, and should therefore be liberally construed.” Williams, 631 F.3d at 383; Erickson v.

Pardus, 551 U.S. 89, 93 (2007) (citing Estelle v. Gamble, 429 U.S. 97 (1976)). Even under this

lenient standard, however, pro se plaintiffs must meet basic pleading requirements and are not

exempted from the requirements of the Federal Rules of Civil Procedure. Martin v. Overton, 391

F.3d 710, 714 (6th Cir. 2004); Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989); see also Young

Bok Song v. Gipson, 423 F. App’x 506, 510 (6th Cir. 2011) (explaining the role of the courts is not

“to ferret out the strongest cause of action on behalf of pro se litigants” or to “advis[e] litigants as

to what legal theories they should pursue”).

B. FACTUAL BACKGROUND

The liberally-construed Complaint alleges the following facts that the Court must accept

as true for purposes of initial review. While at TTCC, Plaintiff sought medical care for a skin rash

on his left arm. (Doc. No. 1-1 at 5). Medical provider Walter prescribed him a therapeutic

shampoo. (Id.) The rash spread up Plaintiff’s harm and to his neck, and the skin turned red and

itchy. (Id.) Walter then prescribed Plaintiff Hydrocrostine and A&D ointment. (Id.) The rash then

spread to Plaintiff’s genitals. (Id.) Walter prescribed castor oil and Predisone. (Id.) Soon Plaintiff’s

skin looked “as if [he] had been burnt by fire,” and he was rushed to the medical unit. (Id.) Dr.

Leveck gave Plaintiff a steroid injection and Walter gave Plaintiff more Prednisone. (Id. at 5-6).

Nonetheless, Plaintiff’s skin condition continued to worsen. His entire body became red,

burned, and his skin was severely dry and “constantly falling off.” (Id. at 6). Dr. Leveck, Walter,

and Nurse Johnson gave Plaintiff more steroids without any diagnosis. (Id.) The Prednisone

worsened Plaintiff’s condition, and his skin turned dark red. (Id.) Plaintiff’s condition became so

severe that the “excruciating” itching prevented him from engaging in normal day-to-day functions

like working and sleeping. (Id.) Plaintiff had to constantly change his sheets due to “dead skin . . .

shed[ding] off [his] entire body.” (Id.) Plaintiff requested a consultation with an outside specialist,

but Dr. Leveck denied the request. (Id.) When Plaintiff asked Dr. Leveck for a diagnosis, Dr.

Leveck admitted that he did not know what condition Plaintiff had or how to properly treat him.

(Id.) When Plaintiff told the Warden that he was being treated without a diagnosis, the Warden

“laughed in [Plaintiff’s] face.” (Id.) Plaintiff also received no response from letters to Tennessee

Department of Correction (“TDOC”) Commissioner Tony Parker.2 (Id.)

On July 10, 2019, Plaintiff returned to TTCC from another facility after a court date. (Id.

at 2). During the intake process, other inmates were given cell assignments. (Id.) However, Chief

of Security Robert Howard made Plaintiff sleep in a cell in the intake area that was very cold, bug-

infested, and “nasty” with blood and other biohazard materials smeared on the walls. (Id.) The cell

also had no running water. (Id.) Plaintiff voiced his concerns to Howard, but Howard ignored them.

(Id.) The next day, Howard assigned Plaintiff to the only cell in the D-unit with no running water.

(Id.) As a result, Plaintiff had to hold his bodily waste and restrict hygienic needs, and he could

not perform religious obligations that required the use of water.3 (Id.) After one week, the pipes

were repaired and water was restored to the cell. (Id. at 3). By this time, Plaintiff had a bloated

stomach and an aggravated skin condition. (Id.) He was rushed to medical and given another

steroid shot. (Id.) However, this did not heal the outer layer of Plaintiff’s skin, which looked

infected. (Id.) Plaintiff filed a grievance about these circumstances, but he never received a

response. (Id.)

Plaintiff alleges that Nurse Johnson refused him medical treatment for his skin condition

multiple times in July and August of 2019. (Id.) On October 13, 2019, Plaintiff requested

emergency medical treatment for his skin condition. (Id. at 3-4). His skin was “red, irritated,

blistered, itchy[, and] fluids were running from open cut wounds,” which Plaintiff alleges was

caused in some degree by the steroids he had been given. (Id.) The skin condition was “very

2 Neither TTCC Warden Washburn nor TDOC Commissioner Parker are Defendants in this action.

3 Bumpus is a Sunni Muslim. (Doc. No. 1-1 at 2).

noticeable.” (Id. at 4). However, Nurse Johnson refused to admit Plaintiff to medical or provide

any medical services. (Id. at 3). After Plaintiff complained, Chief Howard also denied him access

to medical services. (Id.) Plaintiff’s skin was so irritated that he subsequently “passed out” from

the itching and scratching. (Id. at 4). A TTCC officer notified Nurse Johnson that Plaintiff was

having a severe allergic reaction and needed immediate treatment. (Id.) Nurse Johnson and Chief

Howard came on the radio and instructed the officer to take Plaintiff back to his assigned unit

because he would not be seen by medical or receive any treatment. (Id.) The officer repeated his

analysis of Plaintiff over the radio, but Johnson and Howard repeated their instructions to take

Plaintiff back to his unit. (Id.) Other prisoners became frustrated at pod Sergeant Cannon for

denying Plaintiff treatment. (Id.) Cannon stated, “I know he needs emergency medical, but I can’t

send him to medical because Lieutenant Crensan, Chief Robert Howard, and Nurse Johnson [are]

refusing him medical treatment.”4

The next morning, October 14, 2019, Plaintiff presented himself to TTCC medical during

diabetic call. (Id.) Upon seeing Plaintiff’s condition, Nurse Moore immediately admitted Plaintiff.

(Id.) Plaintiff was rushed into the infirmary and given medicine by Dr. Elouho and Nurse Moore,

who stated that the condition was severe due to lack of treatment on the previous day. Plaintiff

could not walk for several days due to the strength of the steroids. (Id. at 4-5). Dr. Leveck confessed

to Plaintiff that his skin condition “had become ten times worse” due to the denial of treatment.

(Id. at 5).

On October 24, 2019, Plaintiff was sent for a consultation with an outside dermatologist

after pressure from his family members. (Id. at 7). The dermatologist prescribed several hygienic

products, and made an order for Dr. Leveck to follow. (Id.) Plaintiff told Dr. Leveck about the

4 Neither Cannon nor Crensan are Defendants in this action.

dermatologist’s order, but Dr. Leveck stated, “I’m not going to prescribe you anything that the

dermatologist has recommended you, because CCA won’t allow me to.”5 (Id.) Dr. Leveck added,

“I’m sorry, but if this is the stuff that you need to heal up and get better, you’re just going to have

to suffer while you’re here in [until] you get out and be able to get better treatment for yourself.”

(Id.) Dr. Leveck also refused to allow Plaintiff’s family to order the prescriptions, stating “CCA

[won’t] allow your family to order through the pharmacy.” (Id.)

On October 25, 2019, Plaintiff notified Dr. Leveck that the skin symptoms were becoming

worse, “like last time.” (Id.) Dr. Leveck stated, “I cannot fully treat you because CCA has a strict

limit on medical supplies.” (Id.) On October 30, 2019, a TTCC officer escorted Plaintiff to the

medical unit due to “fluids leaking from [his back] and private area” and his skin being severely

“dry, itchy, and irritated.” (Id.) Plaintiff’s condition worsened the next day, and on November 1,

2019, he had an allergic skin reaction in front of medical provider Davis. (Id.) However, Davis

refused Plaintiff treatment due to the instructions of Nurse Johnson.6 (Id. at 8).

On November 4, 2019, medical provider Walter told Plaintiff that the steroid injections had

made Plaintiff’s condition worse. (Id. at 9). Nurse Moore also stated that she tried to tell Dr. Leveck

and Nurse Johnson to stop giving Plaintiff steroids, but they “waved her off.” (Id.) Nurse Moore

said that she did not believe Plaintiff’s medical file accurately documented the cause of his

condition. (Id.) Plaintiff wrote grievances about these medical issues, but the grievance committee

sent paperwork back stating that “a diagnosis by medical professionals” was not a grievable matter.

5 “CCA” is a common abbreviation for Corrections Corporation of America, which is the former corporate

name of CoreCivic, the private company that operates the TTCC under contract with TDOC. See

https://www.tn.gov/correction/sp/state-prison-list/trousdale-turner-correctional-center.html (explaining

that “Trousdale Turner Correctional Center is a medium security facility managed by CoreCivic, a private

corrections management firm”)

6 Davis is not a Defendant in this action.

(Id. at 8, 9). On November 5, 2019, the TTCC mail room denied Plaintiff medical supplies sent by

his family. (Id. at 9). On November 8, 2019, Plaintiff again went to sick call about his skin

condition, and medical provider Walter told Plaintiff there was “nothing I can do for you,” and

threatened him with segregation if he kept seeking treatment. (Id.)

That same day—November 8—Plaintiff received all his legal, personal, and media mail

back from the mail room despite it having been approved to be sent out. (Id.) When the unit

counselor called the mail room clerk to ask why this happened, the clerk stated that, “Assistant

Warden James deal has come out with a new policy as of November 1, 2019, which means no

legal mail or media mail will be sent out unless you have the money to pay for postage on your

account.” (Id.) As a result, indigent inmates at TTCC, such as Plaintiff, cannot send out legal mail.

(Id. at 8-9). Plaintiff alleges that this policy is restricting him from “seeking help in [court] for an

address of grievances, contacting the media, corresponding with attorneys, and so forth.” (Id.)

Plaintiff had “several things pending in [court],” and he had “several legal deadlines that [he] could

not meet.” (Id.) Plaintiff further alleges that he will never be able to utilize the mail under this

policy because the State is garnishing his funds and he is always indigent. (Id.) Plaintiff believes

that his mail is being restricted because Assistant Warden Deal does not want Plaintiff’s concerns

to be heard outside of TTCC. (Id.)

Plaintiff sues Assistant Warden Deal, Chief Howard, Dr. Leveck, Nurse Johnson, and

medical provider Walter in their individual and official capacities. (Doc. No. 1 at 2-4). He brings

claims under § 1983 for violations of the First, Eighth, and Fourteenth Amendments. (Id. at 3; Doc.

No. 1-2). He seeks injunctive relief, compensatory damages, and punitive damages. (Doc. No. 1-

3).

C. ANALYSIS

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, a 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.7 Carl v. Muskegon Cty., 763 F.3d 592, 595 (6th Cir. 2014).

Plaintiff sues Defendants in both their individual and official capacities. “[I]ndividuals

sued in their official capacities stand in the shoes of the entity they represent.” Alkire v. Irving, 330

F.3d 802, 810 (6th Cir. 2003) (citing Kentucky v. Graham, 473 U.S. 159, 165 (1985)). Here, the

individual Defendants represent Core Civic, which is “the private entity contracted to manage [the]

TTCC.” Shallenberger v. CoreCivic - Trousdale Turner Corr. Ctr., No. 3:19-cv-00900, 2020 WL

869984, at *3 & n.1 (M.D. Tenn. Feb 21, 2020) (citing Plemons v. CoreCivic Admin.

Headquarters, No. 3:18-cv-00498, 2018 WL 4094816, at *3 & n.1 (M.D. Tenn. Aug. 28, 2018)).

Thus, Plaintiff’s official-capacity claims against the individual Defendants are effectively claims

against Core Civic.

Because Core Civic is “a private corporation that performs the traditional state function of

operating a prison,” Gennoe v. Washburn, Case No. 3:19-cv-00478, 2019 WL 5693929, at *5

(M.D. Tenn. Nov. 4, 2019) (citations omitted), it is subject to suit under Section 1983. Thomas v.

7 To the extent that any of Plaintiff’s claims are premised on the mishandling of his grievances or violation

of TTCC policies, he fails to state a claim under Section 1983. Hursey v. Anderson, No. 16-1146, 2017 WL

3528206, at *2 (6th Cir. Mar. 31, 2017) (explaining that “a prisoner has no constitutional right to an

effective prison grievance procedure”); Crockett v. Davidson Cty. Sheriff’s Dep’t, No. 3:19-cv-00545, 2019

WL 5592546, at *3 (M.D. Tenn. Oct. 30, 2019).

Coble, 55 F. App’x 748, 748 (6th Cir. 2003) (citing Street v. Corr. Corp. of Am., 102 F.3d 810,

814 (6th Cir. 1996)); see also Shadrick v. Hopkins Cty., Ky., 805 F.3d 724, 736 (6th Cir. 2015)

(citing Rouster v. Cty. of Saginaw, 749 F.3d 437, 453 (6th Cir. 2014)). The Sixth Circuit applies

the standards for assessing municipal liability to claims against private corporations that operate

prisons. Thomas, 55 F. App’x at 748-49; Street, 102 F.3d at 817-18; Johnson v. Corr. Corp. of

Am., 26 F. App’x 386, 388 (6th Cir. 2001). Thus, Core Civic “cannot be held liable under a theory

of respondeat superior.” Street, 102 F.3d at 818; Braswell v. Corr. Corp. of Am., 419 F. App’x

622, 627 (6th Cir. 2011). To sustain an official-capacity claim, Plaintiff must allege: (1) that he

suffered a constitutional violation; and (2) that a policy or custom of Core Civic directly caused

the violation. See Savoie v. Martin, 673 F.3d 488, 494 (6th Cir. 2012) (citing Miller v. Sanilac

Cty., 606 F.3d 240, 255 (6th Cir. 2010)); Braswell, 419 F. App’x at 627.

1. First Amendment Access to the Courts

Plaintiff first brings an access-to-courts claim against Assistant Warden Deal in his

individual and official capacities. While Plaintiff characterizes these claims as brought under both

the First and Fourteenth Amendments (see Doc. No. 1-2 at 3), they are properly analyzed under

the First Amendment. See Sharp v. Kelsey, 918 F. Supp. 1115, 1121 (W.D. Mich. 1996) (“[T]he

Fourteenth Amendment does not apply where there is a more specific constitutional provision

available.”) (citing Albright v. Oliver, 510 U.S. 266 (1994); Graham v. Connor, 490 U.S. 386

(1989)).

Prisoners have a well-settled First Amendment right of access to the courts. Singer v. Price,

Case No. 3:16-cv-02621, 2017 WL 413853, at *4 (M.D. Tenn. Jan. 31, 2017) (citing Bounds v.

Smith, 430 U.S. 817, 821-823 (1977)); see also Hall v. Callahan, 727 F.3d 450, 456 (6th Cir. 2013)

(noting that access to the courts is a fundamental right). This right guarantees that prisoners have

“a reasonably adequate opportunity to present claimed violations of fundamental constitutional

rights to the courts.” Bounds, 430 U.S. at 825. To ensure the meaningful exercise of this right,

prison officials have an affirmative obligation to, among other things, provide indigent inmates

with “paper and pen to draft legal documents, notarial services to authenticate them, and with

stamps to mail them.” Bounds, 430 U.S. at 824-25. Furthermore, officials are prohibited from

actively interfering with inmates’ attempts to prepare legal documents, Johnson v. Avery, 393 U.S.

483, 484, 489-90 (1969), or file them. See, e.g., Dorn v. Lafler, 601 F.3d 439, 445 (6th Cir. 2010)

(explaining that “prisons have an obligation to timely mail court documents when prisoners have

been diligent and punctual in submitting them to prison officials”), abrogated on other grounds by

Harrington v. Richter, 562 U.S. 86 (2011); Ex Parte Hull, 312 U.S. 546, 547-49 (1941).

Meaningful access to the courts varies with the circumstances, and prison officials are accorded

discretion in determining how that right is to be administered. Bounds, 430 U.S. at 830-31.

However, in order to state a colorable claim for interference with access to the courts, a

plaintiff must plead both a violation of the right and “actual injury.” Lewis v. Casey, 518 U.S. 343,

349 (1996). Because the right of access is “ancillary to [a lost] underlying claim, without which a

plaintiff cannot have suffered injury by being shut out of court,” Sampson v. Garrett, 917 F.3d

880, 881 (6th Cir. 2019), “[a]n inmate who claims his access to the courts was denied fails to state

a claim without any showing of prejudice to his litigation.” Kensu v. Haigh, 87 F.3d 172, 175 (6th

Cir. 1996). Thus, a plaintiff must plead both a violation and “that the defendant[ ] ha[s] scuttled

his pursuit of a ‘nonfrivolous, arguable’ claim.” Sampson, 917 F.3d at 881 (quoting Christopher

v. Harbury, 536 U.S. 403, 415 (2002)); see also Loyde v. Wilkes, No. 3:16-cv-00758, 2016 WL

3058484, at *6 (M.D. Tenn. May 31, 2016) (a prisoner must also allege “actual prejudice to

pending or contemplated litigation”) (quoting Moore v. Chavez, 36 F. App’x 169, 171 (6th Cir.

2002)). Accordingly, the “underlying cause of action and its lost remedy” is an “element that must

be described in the complaint.” Christopher, 536 U.S. at 415-16 (citing Lewis, 518 U.S. at 353 &

n.3). Furthermore, the injury must be specific prejudice, “[such as] the late filing of a court

document or the dismissal of an otherwise meritorious claim,” Loyde, 2016 WL 3058484, at *5

(quoting Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996)), and the impacted claim must be

either a “direct appeal[], habeas corpus application[], [or] civil rights” action. Thaddeus-X v.

Blatter, 175 F.3d 378, 391 (6th Cir 1999) (en banc); see also Lewis, 518 U.S. at 351.

The Complaint alleges that Assistant Warden Deal implemented a policy that restricted

Plaintiff from “seeking help in [court] for an address of grievances, contacting the media,

corresponding with attorneys, and so forth.” (Doc. No. 1-1 at 8-9.) However, Plaintiff has failed

to allege actual injury. Plaintiff alleges only that he has not been able to meet “several legal

deadlines” for “several things pending in [court].” (Id.) Plaintiff does not provide factual matter

on the nature of his legal claims, and he does not allege any adverse legal decisions stemming from

missed deadlines. Accordingly, Plaintiff has failed to plead, as required, specific prejudice in an

underlying cause of action seeking to vindicate constitutional rights. See, e.g., Cody v. Slusher,

No. 17-3764, 2018 WL 3587003, at *2 (6th Cir. Mar. 8, 2018) (affirming dismissal of pro se

prisoner access-to-courts claim on ground that plaintiff did not demonstrate arguably meritorious

underlying claims); Vick v. Core Civic, 329 F.Supp.3d 426, 457 (M.D. Tenn. 2018) (dismissing

access-to-courts claim because plaintiff failed to plead a denial or dismissal of underlying claim)

(citing Lewis, 518 U.S. at 348-354); Loyde, 2016 WL 3058484, at *5 (dismissing access-to-courts

claim because plaintiff failed to plead actual injury). Plaintiff’s individual and official capacity

First Amendment access-to-courts claims against Assistant Warden Deal will therefore be

dismissed for failure to state a claim. However the dismissal of these claims will be without

prejudice, so that Plaintiff is not precluded from moving to re-assert the claims, if appropriate,

supported by specific allegations of actual injury.

2. First Amendment Freedom of Speech

Plaintiff also brings freedom of speech claims against Assistant Warden Deal in his

individual and official capacities. A prisoner has a First Amendment right to send mail. Hudson v.

Palmer, 468 U.S. 517, 547 (1984). A restriction on this right is valid “only if it is reasonably related

to legitimate penological interests.” Rodgers v. Hawley, 14 F. App’x 403, 408 (6th Cir. 2001)

(quoting Turner v. Safley, 482 U.S. 78, 89 (1987)). For example, interfering with a prisoner’s right

to send mail simply because the letter contains legal information bears no relation to a legitimate

penological interest. Id. (citing Antonelli v. Sheahan, 81 F.3d 1422, 1431-32 (7th Cir. 1996)).

The Complaint alleges that Assistant Warden Deal implemented a blanket policy that – at

a minimum – prevented indigent inmates, including Plaintiff, from corresponding with courts, the

media, and attorneys. Liberally construing the Complaint, the Court infers that Plaintiff contends

this is a Core Civic policy, and it is not reasonably related to any legitimate penological interest.

The Court finds that, at this early juncture, these allegations state a colorable First Amendment

freedom of speech claim against Assistant Warden Deal in his individual and official capacities.

These claims will be allowed to proceed for further development.

3. First Amendment Retaliation

Liberally construed, the Complaint also brings a First Amendment retaliation claim against

Assistant Warden Deal in his individual and official capacities. To advance this claim, Plaintiff

must plausibly allege “that (1) he engaged in protected conduct, (2) the defendant took an adverse

action that is capable of deterring a person of ‘ordinary firmness from continuing to engage in that

conduct,’ and (3) ‘the adverse action was motivated at least in part by the [prisoner’s] protected

conduct.’” Hill, 630 F.3d at 472 (quoting Thaddeus-X, 175 F.3d at 394, 398); Strader v.

Cumberland Cty., No. 2:19-cv-00045, 2020 WL 291383, at *10 (M.D. Tenn. Jan. 21, 2020). In

Hill, the Sixth Circuit reversed the district court’s dismissal of a First Amendment retaliation claim

on initial review, emphasizing that the essential elements of such a claim are not overly difficult

to establish, “especially in light of the ‘indulgent treatment’ that ‘[c]ourts are instructed to give . .

. to the ‘inartfully pleaded’ allegations of pro se prison litigants.” Hill, 630 F.3d at 471 (quoting

Pasley v. Conerly, 345 F. App’x 981, 986 (6th Cir. 2009)). The Court of Appeals indicated that,

where the facts alleged in a prisoner’s complaint are sufficient to support these elements, the claim

should go forward even if the inmate “fails to explicitly state” that he is making a First Amendment

retaliation claim or does not “make an effective argument for that claim in his . . . complaint.” Id.

(citing Pasley, 345 F. App’x at 986).

Here, Plaintiff alleges that Assistant Warden Deal implemented a blanket policy restricting

indigent inmates, including Plaintiff, from sending mail to courts, media, and attorneys, after

Plaintiff had filed numerous grievances concerning medical treatment, because Deal did not want

Plaintiff’s concerns to be heard outside of TTCC. Although Plaintiff does not use the term

“retaliation,” the Court finds that Plaintiff’s allegations are indeed sufficient to state a nonfrivolous

claim of First Amendment retaliation. First, Plaintiff’s efforts to seek medical care and complaints

about the lack of medical care “are activities protected by the Constitution.” Lumbard v. Lillywhite,

--- F. App’x ---, No. 18-2335, 2020 WL 2569357, at *6 (6th Cir. May 21, 2020) (citing Noble v.

Schmitt, 87 F.3d 157, 162 (6th Cir. 1996)). Second, although “[p]risoners may be required to

tolerate more than public employees, who may be required to tolerate more than average citizens,

before an action taken against them is considered adverse,” Thaddeus-X, 175 F.3d at 398, a blanket

preclusion against certain prisoners using the mail to contact people or entities who can assist them

“would likely have a strong deterrent effect” on those prisoner’s protected activities. See Lumbard,

2020 WL 2569357, at *6 (citing Thaddeus-X, 175 F.3d at 398 (adverse action “threshold is

intended to weed out only inconsequential actions, and is not a means whereby solely egregious

retaliatory acts are allowed to proceed”)). Finally, Plaintiff has sufficiently alleged that these

punitive actions were motivated by Deal’s desire to conceal Plaintiff’s complaints about

inadequate medical care from outsiders. See id. (explaining that a retaliation claim survives if a

plaintiff “alleges facts that his protected activity was ‘a motivating factor’ behind the adverse

action”) (citing Thaddeus-X, 175 F.3d at 399); Hill, 630 F.3d at 475-76 (retaliatory motive can be

supported by circumstantial evidence including “the disparate treatment of similarly situated

individuals or the temporal proximity between the prisoner’s protected conduct and the official’s

adverse action”) (citing Holzemer v. City of Memphis, 621 F.3d 512, 525-26, (6th Cir. 2010)).

Finally, the Court again construes the Complaint to allege that Plaintiff contends Deal

implemented a Core Civic policy. Accordingly, at this early stage of the case, the Court concludes

Plaintiff states a colorable First Amendment retaliation claim against Assistant Warden Deal in his

individual and official capacities.

4. First Amendment Free Exercise of Religion

Next, Plaintiff brings a free exercise of religion claim against Chief of Security Howard in

his individual and official capacities. The First Amendment provides that “Congress shall make

no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . .” U.S.

CONST. amend. I. Prisoners retain the right to free exercise of their religion, and they must therefore

be provided “reasonable opportunities” to practice their religion. Hudson, 468 U.S. at 523; Walker

v. Mintzes, 771 F.2d 920, 929 (6th Cir. 1985). However, a prisoner’s right to exercise his religious

beliefs may be subjected to reasonable restrictions and limitations reasonably related to legitimate

penological interests. Vick, 329 F. Supp. 3d at 452-53 (citing Bell v. Wolfish, 441 U.S. 520, 549-

51 (1979); Pollack v. Marshall, 845 F.2d 656, 658-60 (6th Cir.1988)). The First Amendment does

not require that prison officials provide inmates with the best possible means of exercising their

religious beliefs, nor does it require that general prison policies and concerns become subordinate

to the religious desires of any particular prisoner; the internal administration of a correctional

facility is a function left to the discretion of prison administrators. Id. (citations omitted).

Liberally construing the Complaint, Plaintiff alleges that Howard denied him the ability to

perform Sunni Muslim religious obligations requiring the use of water by placing him in two cells

(intake and then D-unit) without running water for over one week. The Complaint further alleges

that Howard was aware of Plaintiff’s concerns but ignored them. The Complaint does not indicate

that, without the ability to use water, Plaintiff had an alternative means of exercising his particular

religious beliefs. See Vick, 329 F. Supp. 3d. at 453. For example, the Complaint does not include

allegations suggesting that the Plaintiff may complete the same Sunni Muslim rituals without

water. Based upon the allegations that were made in the Complaint, which the Court must accept

as true, the Court concludes that Plaintiff has stated a non-frivolous First Amendment free exercise

of religion claim for purposes of the required PLRA screening.8 See Maye v. Klee, 915 F.3d 1076,

1083 (6th Cir. 2019) (“Denying a Muslim inmate the opportunity to partake in Eid would

substantially burden his free exercise rights, so Maye has alleged a deprivation of his rights under

the Free Exercise Clause.”); Vick, 329 F. Supp. 3d at 453 (allowing claim that prisoner was denied

ability to partake in religious services while in certain housing to proceed for further development).

8 The Complaint likely also states a claim for violation of the Religious Land Use and Institutionalized

Persons Act of 2000, 42 U.S.C. § 2000cc et seq. (“RLUIPA”). However, money damages are not available

against state prison officials under RLUIPA, Haight v. Thompson, 763 F.3d 554, 570 (6th Cir. 2014), and

Plaintiff does not seek injunctive relief concerning this deprivation. Accordingly, there is no basis for a

RLUIPA claim to proceed for further development.

This individual-capacity claim against Chief Howard will therefore be allowed to advance beyond

initial review. The official-capacity claim, however, will be dismissed because Plaintiff fails to

allege that any Core Civic policy or custom caused this violation.

5. Eighth Amendment Deliberate Indifference to Serious Medical Need

Next, Plaintiff brings individual and official-capacity claims against Defendants Howard,

Leveck, Johnson, and Walter concerning inadequate medical treatment at TTCC. While Plaintiff

characterizes these claims as brought under the both Eighth and Fourteenth Amendments (see Doc.

No. 1-2 at 1-2), they are properly analyzed under the Eighth Amendment. Sharp, 918 F. Supp. at

1121 (citations omitted). “[D]eliberate indifference to serious medical needs of prisoners

constitutes ‘the unnecessary and wanton infliction of pain’ that is violative of the Constitution.”

Darrah v. Krisher, 865 F.3d 361, 367 (6th Cir. 2017) (quoting Estelle, 429 U.S. at 104, 105). “[A]

prisoner’s Eighth Amendment right is violated when prison doctors or officials are deliberately

indifferent to the prisoner’s serious medical needs,” Comstock v. McCrary, 273 F.3d 693, 702 (6th

Cir. 2001) (citing Estelle, 429 U.S. at 104), and the prisoner’s health suffered as a consequence.

See Thaddeus-X, 175 F.3d at 401.

“A constitutional claim for deliberate indifference contains both an objective and a

subjective component. The objective component requires a plaintiff to show the existence of a

‘sufficiently serious’ medical need.” Dominguez v. Corr. Med. Servs., 555 F.3d 543, 550 (6th Cir.

2009) (quoting Farmer, 511 U.S. at 834). 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.” Villegas v. Metro. Gov’t of Nashville, 709 F.3d

563, 570 (6th Cir. 2013). “[W]hen an inmate had a medical need diagnosed by a physician as

mandating treatment, the plaintiff can establish the objective component by showing that the prison

failed to provide treatment, or that it provided treatment so cursory as to amount to no treatment

at all.” Rhinehart v. Scutt, 894 F.3d 721, 737 (6th Cir. 2018) (citations and internal quotation marks

omitted). “But when an inmate has received on-going treatment for his condition and claims that

this treatment was inadequate, the objective component of an Eighth Amendment claim requires a

showing of care ‘so grossly incompetent, inadequate, or excessive as to shock the conscience or to

be intolerable to fundamental fairness.’” Id. (quoting Miller v. Calhoun Cty., 408 F.3d 803, 819

(6th Cir. 2005)).

For the subjective component, a plaintiff must allege that an official was “aware of facts

from which the inference could be drawn that a substantial risk of serious harm exists, and . . .

also dr[e]w the inference.” Winkler v. Madison Cty., 893 F.3d 877, 891 (6th Cir. 2018) (quoting

Farmer, 511 U.S. at 837). “[N]egligence or negligent medical treatment are not actionable theories

of liability under 42 U.S.C. § 1983.” Boldon v. Claiborne Cty. Det. Ctr., No. 3:16-CV-441-TWP-

HBG, 2017 WL 4158612, at *6 (E.D. Tenn. Sept. 19, 2017) (citing Daniels v. Williams, 474 U.S.

327, 328-331 (1986)). A prisoner’s difference of opinion regarding diagnosis or treatment also

does not rise to the level of a constitutional violation. Estelle, 429 U.S. at 107.

First, the Court finds that Plaintiff has satisfied the objective component. He alleges that

he suffered from a full-body condition so severe that his skin looked as if it “had been burnt by

fire”; was constantly “shed[ding] off [his] entire body”; and caused “excruciating” discomfort and

itching that prevented him from engaging in normal day-to-day functions like working and

sleeping. (Doc. No. 1-1 at 6.) On one occasion, the skin irritation became so severe that it caused

Plaintiff to pass out, and on several other occasions Plaintiff was rushed to TTCC’s medical

infirmary on an emergency basis. Generally, simple rashes do not rise to the level of an objectively

serious medical need. See Lee v. Hatcher, Case No. 3:16-cv-02590, 2016 WL 5467948, at *3

(M.D. Tenn. Sept. 29, 2016) (citing Prather v. Corr. Care Sols., No. 3:16-CV-P60-JHM, 2016

WL 2903288, at *4 (W.D. Ky. May 18, 2016)). However, in this instance Plaintiff alleges not an

inconsequential rash, but rather a severe, full-body skin condition that had a visible and significant

impact on his overall health and well-being. Accordingly, the Court finds, for purposes of PLRA

initial review, that Plaintiff has alleged a serious medical need for purposes of the objective

component .

The Complaint also alleges that Defendants Howard and Johnson denied Plaintiff access

to medical care for this condition from July to mid-October of 2019, despite emergency

developments and the express requests of other TTCC employees. Plaintiff also alleges that Dr.

Leveck, Nurse Johnson, and medical provider Walter provided certain grossly inadequate care

before or after this period of denial. According to the Complaint, Dr. Leveck admitted that he did

not know what condition Plaintiff had or how to properly treat him, yet refused Plaintiff’s request

to see a specialist for a lengthy period of time. Plaintiff alleges that on the occasions he did receive

treatment from these three Defendants for his serious condition, it was either wholly inadequate or

visibly worsened his condition. Moreover, after Plaintiff was finally allowed to see an outside

specialist, Dr. Leveck refused to follow the specialists orders, telling Plaintiff he would “just . . .

have to suffer while you’re here in [until] you get out and be able to get better treatment for

yourself.” (Id. at 7.) In sum, at this early stage of the case, the Complaint is sufficient to allege that

the Defendants to this claim either “failed to provide treatment, or . . . provided treatment so

cursory as to amount to no treatment at all,” Rhinehart, 894 F.3d at 737, or provided care “so

grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to

fundamental fairness.” Id. Finally, Plaintiff alleges he has suffered detrimental effects from the

Defendants’ actions, including exacerbation of existing symptoms, pain, passing out, extreme

discomfort, and disruption to basic life functions. For the purpose of initial review, this is sufficient

to satisfy the objective standard insofar as it requires an alleged “fail[ure] to provide treatment, or

[provision of] treatment so cursory as to amount to no treatment at all.” Rhinehart, 894 F.3d at

737.

Second, the liberally-construed Complaint satisfies the subjective component by alleging

these four Defendants were aware of Plaintiff’s serious medical needs and disregarded them.

Specifically, Plaintiff alleges that he presented to these Defendants on multiple occasions with the

same serious medical complaints, and these Defendants were aware of emergency situations

caused by Plaintiff’s condition. Plaintiff alleges that, despite this knowledge, these Defendants

deliberately denied him adequate care. This is sufficient, at this early stage, to allege that the

Defendants were “aware of facts from which the inference could be drawn that a substantial risk

of serious harm exists, and . . . also dr[e]w the inference.” Winkler, 893 F.3d at 891 (quoting

Farmer, 511 U.S. at 837). Accordingly, for purposes of initial review, the Court finds that Plaintiff

has stated colorable Eighth Amendment deliberate-indifference claims against Defendants

Howard, Leveck, Johnson, and Walter in their individual capacities.

Concerning the official-capacity claims, the Complaint alleges Dr. Leveck refused to

implement the outside specialist’s orders and stated, “CCA won’t allow me to.” (Doc. No. 1-1 at

7.) The Complaint further alleges that Dr. Leveck acknowledged Plaintiff’s condition was

worsening, but stated, “I cannot fully treat you because CCA has a strict limit on medical supplies.”

(Id.) Liberally construing the Complaint in Plaintiff’s favor, the Court infers that Plaintiff alleges

that Core Civic has a policy or custom of denying necessary medical treatment to inmates, at least

in part due to limits on the cost of medical supplies. This is sufficient, at this point, to pursue a

deliberate-indifference claim against Core Civic. Accordingly, the official-capacity claim against

Dr. Leveck will proceed for further development. Plaintiff’s official-capacity claims against the

other Defendants will be dismissed as redundant.

To be clear, at this time Plaintiff is not confronted by a motion to dismiss. Instead, he has

a “lower burden . . . to overcome” at the (current) PLRA screening stage. Vick, 329 F. Supp. 3d at

446. The Court finds merely that, for now, these claims survive the required screening under the

PLRA.

6. Eighth Amendment Conditions of Confinement

Plaintiff also brings an Eighth Amendment conditions-of- confinement claim against Chief

Howard based on the allegations that Howard placed Plaintiff in two cells without running water

for over one week. The Constitution does not protect a prisoner from unpleasant prison

experiences. Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir. 1987). Nor does it mandate comfortable

conditions of confinement. Rhodes v. Chapman, 452 U.S. 337, 349 (1981). However, the Eighth

Amendment does impose an obligation to provide prisoners with reasonably adequate food,

clothing, shelter, sanitation, recreation, and medical care to guarantee prisoner safety. Farmer, 511

U.S. at 832; Grubbs v. Bradley, 552 F. Supp. 1052, 1119-24 (M.D. Tenn. 1982). The failure to

provide such necessities is a violation of an inmate’s right to be free from cruel and unusual

punishment. Bellamy v. Bradley, 729 F.2d 416 (6th Cir. 1984). A claim that prison officials have

failed to meet this obligation requires: (1) a “sufficiently serious” deprivation that falls below a

“minimal civilized measure of life’s necessities,” and (2) “deliberate indifference to inmate health

or safety” on the part of a prison official. Hamby v. Gentry, No. 3:12-CV-01296, 2013 WL

3315494, at *5 (M.D. Tenn. July 1, 2013) (quoting Spencer v. Bouchard, 449 F.3d 721, 727 (6th

Cir. 2006)). Without an allegation of injury or harm, a plaintiff does not state a viable Eighth

Amendment conditions-of-confinement claim. Chaffins v. Lindamood, No. 1:17-cv-00061, 2017

WL 3130558, at *3 (M.D. Tenn. July 24, 2017).

Plaintiff alleges that Chief Howard placed him in two cells (successively) without running

water for eight consecutive days. (See Doc. No. 1-1 at 2-3 (alleging placement in an intake cell

without water for one day and a cell in D-unit without water for one week)). Liberally construed,

the Complaint also alleges that Plaintiff did not have access to other water facilities during part or

all of this time. (See id. at 3 (alleging that Plaintiff’s “stomach was bloated from not being able to

use the bathroom,” his skin condition worsened, and he was unable to perform religious rituals

requiring water). Especially given the alleged duration of the deprivation, these allegations are

sufficient to state a colorable individual-capacity conditions-of-confinement claim against Chief

Howard. Compare Grubbs, 552 F. Supp. at 1131 (confinement for more than one week without

hot water amounted to cruel and unusual punishment), and Perry v. Knowles, No. 4:12-cv-3, 2013

WL 4046319, at *4 (E.D. Tenn. Aug. 8, 2013) (to state a conditions-of-confinement claim based

on alleged lack of running water in a cell, a plaintiff must also allege that “he was denied use of

[other] facilities in the jail with running water and a working commode”), with Richmond v.

Settles, 450 F. App’x 448, 455 (6th Cir. 2011) (denial of running water for less than one week is

not actionable). This claim will therefore be allowed to proceed for further development. The

official-capacity claim against Chief Howard will be dismissed because Plaintiff fails to allege that

any Core Civic policy or custom caused this violation.

7. Equal Protection Claim

Finally, Plaintiff claims that Chief Howard violated his Fourteenth Amendment right to

equal protection by placing him in the substandard cells. (Doc. No. 1-2 at 1). The Equal Protection

Clause of the Fourteenth Amendment commands that no state shall “deny to any person within its

jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV, § 1. This is “in essence ‘a

direction that all persons similarly situated should be treated alike.’” Robinson v. Jackson, 615 F.

App’x 310, 314 (6th Cir. 2015) (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,

439 (1985)). Thus, the threshold element of an equal protection claim is disparate treatment.

Scarbrough v. Morgan Cty. Bd. of Educ., 470 F.3d 250, 260 (6th Cir. 2006). A plaintiff must allege

that the government treated him or her disparately as compared to “similarly situated persons.”

Center for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 379 (6th Cir. 2011); see also

Tree of Life Christian Schs. v. City of Upper Arlington, 905 F.3d 357, 368 (6th Cir. 2018)

(explaining that an equal protection plaintiff must be similarly situated to his comparators “in all

relevant respects”). However, “to establish an equal protection violation, a plaintiff must establish

more than differential treatment alone—a discriminatory intent or purpose is required.” Maye, 915

F.3d at 1085 (citing Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264-65

(1977)); Pleasant-Bey v. Tennessee, No. 3:19-cv-00486, 2020 WL 707584, at *9 (M.D. Tenn.

Feb. 12, 2020). Thus, a plaintiff may state an equal protection claim by plausibly alleging “that

(1) he was treated disparately from similarly situated prisoners, and (2) the disparate treatment is

the result of intentional and purposeful discrimination.” Davis v. Heyns, No. 17-1268, 2017 WL

8231366, at *4 (6th Cir. Oct. 16, 2017) (quoting Robinson, 615 F. App’x at 314-15).

Here, Plaintiff alleges that he was treated differently than other prisoners who were placed

in cells with running water. However, while Plaintiff identifies himself as a Sunni Muslim, he does

not allege that Defendant Howard “intentionally discriminated against him because of his

membership in that protected class.” McGaughy v. Johnson, 63 F. App’x 177, 178 (6th Cir. 2003)

(citing Herron v. Harrison, 203 F.3d 410, 417 (6th Cir. 2000)). Nor does Plaintiff allege that he is

a member of any other protected class; notably, prisoners as a group are not members of a protected

class for equal protection purposes. See Hampton v. Hobbs, 106 F.3d 1281, 1286 (6th Cir. 1997)

Nor does Plaintiff allege any other discriminatory intent or purpose sufficient to support an equal

protection claim. Because Plaintiff has not sufficiently alleged a discriminatory intent or purpose,

the individual and official capacity equal protection claims against Howard must be dismissed for

failure to state a claim.

IV. MOTION TO STAY

Plaintiff has moved the Court to stay this action for 90 days because TTCC is under

lockdown due to Covid-19 and Plaintiff has unfortunately contracted the illness. (Doc. No. 7.) This

request, which will not prejudice Defendants, will be granted in part. The case will remain active.

However, the Court will allow Plaintiff 120 days, rather than the standard 30 days, to return the

service packets in order to issue process.

V. CONCLUSION

For the reasons explained above, Plaintiff’s in forma pauperis application will be granted.

The following colorable claims will be allowed to proceed: First Amendment freedom of speech

and First Amendment retaliation claims against Defendant Deal in his individual and official

capacities; First Amendment free exercise of religion claim against Defendant Howard in his

individual capacity; Eighth Amendment deliberate-indifference claims against Defendants

Howard, Johnson, Leveck, and Walter in their individual capacities, and against Defendant Leveck

in his official capacity; and an Eighth Amendment conditions-of-confinement claim against

Defendant Howard in his individual capacity.

All other claims will be dismissed. All dismissed claims will be dismissed with prejudice,

except that Plaintiff’s First Amendment access-to-courts claims against Defendant Deal in his

individual and official capacities will be dismissed without prejudice.

Plaintiff will be allowed additional time (an extra 30 days, as noted above) to return the

forthcoming service packets due to his medical status. This case will be referred to the Magistrate

Judge for further proceedings.

An appropriate Order will be entered.

ELI RICHARDSON

UNITED STATES DISTRICT JUDGE

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