# Greer v. Jones

> District Court, M.D. Tennessee · November 5, 2020

URL: https://www.frixlaw.com/law-library/cases/10436787

## Case

- **Court:** District Court, M.D. Tennessee
- **Decided:** November 5, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

JAMES GREER #582777, )
)
Plaintiff, )
)
v. ) Case No. 3:20-cv-00726
) Case No. 3:20-cv-00794
TENNESSEE DEPARTMENT )
OF CORRECTION, et al., ) JUDGE TRAUGER
)
Defendants. )

MEMORANDUM AND ORDER
James Greer, an inmate of the Bledsoe County Correctional Complex in Pikeville,
Tennessee, filed the first of these civil rights complaints pursuant to 42 U.S.C. § 1983 on August
24, 2020. That complaint, however, was not accompanied by either the requisite filing fee or by
an application to proceed in district court without prepaying fees and costs. Accordingly, on
August 28, 2020, the court ordered the plaintiff to correct that deficiency. (Doc. No. 4 in Case
No. 3:20-726.) On September 17, 2020, the plaintiff filed a second complaint along with an
affidavit to proceed without prepaying. (Doc. Nos. 1, 2 in Case No. 3:20-794.) The District
Judge to whom the second case was assigned correctly observed that the claims in the two cases
are materially related and accordingly transferred the second case to the undersigned to enable
efficient and consistent handling of both cases. (Doc. No. 4 in Case No. 3:20-794.)
The second case—No. 3:20-794—is hereby CONSOLIDATED with the plaintiff’s
original case as they raise materially the same claim. All further filings in this matter should be
made under Case No. 3:20-726, and the Clerk of Court is INSTRUCTED to close Case No.
3:20-794 without judgment.
The matter is before the court for a ruling on the plaintiff’s application to proceed in
forma pauperis (IFP). (Doc. No. 2 in Case No. 3:20-794.) In addition, the plaintiff’s pleadings
are before the court 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.

A. Application to Proceed as a Pauper
Under the PLRA, 28 U.S.C. § 1915(a), a prisoner bringing a civil action may be
permitted to file suit without prepaying the filing fee required by 28 U.S.C. § 1914(a). Because
it appears from the plaintiff’s submission that he lacks sufficient financial resources from which
to pay the full filing fee in advance, the court GRANTS his motion (Doc. No. 2 in 3:20-794) to
proceed IFP in this matter.
However, under Section 1915(b), the plaintiff nonetheless remains responsible for paying
the full filing fee. The obligation to pay the fee accrues at the time the case is filed, but the PLRA
provides prisoner-plaintiffs the opportunity to make a “down payment” of a partial filing fee and
to pay the remainder in installments. Accordingly, the plaintiff is hereby ASSESSED a $350

filing fee, to be paid as follows:
The custodian of the plaintiff’s inmate trust fund account at the institution where he now
resides is DIRECTED to submit to the Clerk of Court, as an initial payment, the greater of: (a)
20% of the average monthly deposits to the plaintiff’s inmate trust account; or (b) 20% of the
average monthly balance in the plaintiff’s inmate trust fund account for the six-month period
immediately preceding the filing of the complaint. 28 U.S.C. § 1915(b)(1). Thereafter, the trust
fund officer must withdraw from the plaintiff’s account and pay to the Clerk of this Court
monthly payments equal to 20% of all deposits credited to Plaintiff’s account during the
preceding month, but only when the amount in the account exceeds $10. Such payments must
continue until the entire $350 filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
Each time the trust account officer makes a payment to this court as required by this
order, he or she must print a copy of the prisoner’s account statement showing all activity in the
account since the last payment made in accordance with this order and submit it to the Clerk

along with the payment. All submissions to the Court must clearly identify the plaintiff’s name
and the case number assigned to this consolidated case—No. 3:20-cv-00726—and must be
mailed to: Clerk, United States District Court, Middle District of Tennessee, 801 Broadway,
Nashville, TN 37203.
The Clerk of Court is DIRECTED to send a copy of this order to the Warden of the
prison in which the plaintiff is currently housed to ensure that the custodian of the plaintiff’s
inmate trust account complies with the portion of 28 U.S.C. § 1915 pertaining to payment of the
filing fee. If the plaintiff is transferred from his present place of confinement, the custodian
MUST ensure that a copy of this order follows the plaintiff to his new place of confinement for
continued compliance with this order.

B. Initial Review
Pursuant to 28 U.S.C. § 1915(e)(2), the court is required to conduct an initial review of
any complaint filed in forma pauperis and to dismiss the complaint if it is facially frivolous or
malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary
relief against a defendant who is immune from such relief. In reviewing the complaint to
determine whether it states a plausible claim, “a district court must (1) view the complaint in the
light most favorable to the plaintiff and (2) take all well-pleaded factual allegations as true.”
Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v.
Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (citations omitted)). A pro se pleading must be liberally
construed and “held to less stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
However, “a court cannot 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).

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

his financial inability to purchase it from the prison commissary. He alleges that this is due to a
recent Tennessee Department of Correction (TDOC) policy change that went into effect in July
2020 and that the policy applies to all inmates with no exception for indigency. He says the
failure to provide him with his medication has repeatedly caused him to suffer acute abdominal
pain, gastritis, and diarrhea.
Deliberate indifference to a prisoner’s serious medical needs “constitutes the unnecessary
and wanton infliction of pain” and violates the constitution. Ruiz v. Martin, 72 F. App’x 271, 275
(6th Cir. 2003) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The “deliberate
indifference” necessary to violate the constitution is a higher standard than negligence and
requires that the official know of, and disregard, an excessive risk to the inmate. Farmer v.
Brennan, 511 U.S. 825, 837 (1994). 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).
The plaintiff’s allegations would state a colorable claim for damages against the
responsible individuals under this standard. Moreover, because he alleges that his injuries are
the result of policy, he would state a claim for injunctive relief against TDOC officials in their
official capacities. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). But neither the
court nor the parties can proceed on the basis of allegations spread across two separate
complaints naming different sets of defendants and two supplements. The Federal Rules of Civil
Procedure require a single complaint setting forth “a short and plain statement of the claim” and
the plaintiff’s demand for relief. Fed. R. Civ. P. 8(a). They also require a complaint’s caption to
name all parties to the suit. Fed. R. Civ. P. 10(a).

Accordingly, the plaintiff MUST, within 28 days of the date of entry of this order, file a
single amended complaint clearly identifying all the parties and claims he wishes to pursue in
this case.1 The amended complaint must reflect the matter number under which the consolidated
cases are proceeding: 3:20-cv-00726. The plaintiff is cautioned that his previous submissions in
these cases will not be served on the defendants and will be disregarded for future purposes; the
validity of his claims will be judged solely on the amended complaint.
The Clerk of Court is DIRECTED to provide the plaintiff with a blank Section 1983
complaint form for the plaintiff’s use in drafting his amended complaint. The plaintiff MUST

1 The court is aware that the plaintiff currently has yet another complaint pending in Case No. 2:20-cv-
00054. That complaint is not related to this consolidated matter and is not affected by this order. The
plaintiff should NOT include those or any other unrelated claims in his amended complaint in this case.
include the matter number for this case (3:20-cv-00726) on his amended complaint. The plaintiff
is warned that his failure to comply with this order within the time provided, or to file a timely
motion for extension of time to do so, may result in dismissal of this case for failure to prosecute
and failure to comply with the court’s order.

It is so ORDERED.

Aleta A. Trauger
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10436787. Public record. Not legal advice.