Bostick v. Byrd

IN THE UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

CHRISTOPHER BOSTICK )

)

v. ) NO. 3:20-01041

)

WARDEN BYRD, et al. )

TO: Honorable Eli J. Richardson, District Judge

R E P O R T A N D R E C O M E N D A T I O N

By Memorandum and Order entered March 9, 2021 (Docket Entry No. 9), this prisoner

civil rights action was referred to the Magistrate Judge for pretrial proceedings under 28 U.S.C.

§§ 636(b)(1)(A) and (B), Rule 72(b) of the Federal Rules of Civil Procedure, and the Local Rules

of Court.

Pending before the Court is the motion for summary judgment of Defendant Laura Johnson

(Docket Entry No. 25), to which Plaintiff has responded in opposition. For the reasons set out

below, the undersigned respectfully recommends that the motion be granted and this action be

dismissed.

I. FACTUAL AND PROCEDURAL BACKGROUND

Christopher Bostick (“Plaintiff”) is an inmate of the Tennessee Department of Correction

(“TDOC”) currently confined at the Trousdale Turner Correctional Center (“TTCC”) in Hartsville,

Tennessee. On December 3, 2020, he filed this action pro se and in forma pauperis against several

prison officials, seeking damages and injunctive relief under 42 U.S.C. § 1983 based on allegations

that the officials denied him constitutionally adequate medical care at the TTCC in 2019 and 2020.

Although Plaintiff’s original complaint was dismissed by the Court for failure to state a claim upon

which relief could be granted, Plaintiff subsequently filed an amended complaint (Docket Entry

No. 8) and the case was re-opened. See Orders entered December 9, 2020 (Docket Entry No. 4),

and February 4, 2021 (Docket Entry No. 7). Upon initial review of the amended complaint under

28 U.S.C. §§ 1915(e)(2), the Court found that Plaintiff stated an Eighth Amendment constitutional

claim against Laura Johnson (“Johnson”). See Docket Entry No. 9 at 3-4. All other claims and

defendants were dismissed from the action for failure to state a claim upon which relief can be

granted. Id. at 5.

Plaintiff’s claim against Johnson is based upon an allegation that she was deliberately

indifferent to his serious medical needs. Plaintiff alleges that he suffers from a serious eye

condition called Keratoconus and that physicians recommended in 2018 and again in 2019 that he

have a corrective surgery. See Amended Complaint at 7. Plaintiff alleges that “he was told” that

Johnson would schedule his follow-up to proceed with the surgery but that the scheduling never

occurred. Id. Plaintiff alleges that, as a result of not having the surgery, his vision has deteriorated

to the point that he was classified by a physician as legally blind. Id.

Johnson filed an answer (Docket Entry No. 20), and a period of pretrial activity in the case

occurred in accordance with a scheduling order (Docket Entry No. 21) and amended scheduling

order (Docket Entry No. 24). Although both parties demand a jury trial, a trial date has not been

scheduled pending resolution of Johnson’s motion for summary judgment.

2

II. MOTION FOR SUMMARY JUDGMENT AND RESPONSE

Johnson seeks summary judgment in her favor under Rule 56 of the Federal Rules of Civil

Procedure. In support of her motion, Johnson submits: (1) a supporting memorandum (Docket

Entry No. 26); (2) her own declaration (Docket Entry No. 28); and, (3) a statement of undisputed

material facts (Docket Entry No. 27).

Johnson argues that the undisputed evidence shows that she did not act in a manner that

violated Plaintiff’s constitutional rights. She asserts that she serves as the Health Services

Administrative Assistant at the TTCC and served in that role during the time frame at issue in this

case. See Johnson Declaration at ¶ 3. She contends that her job duties do not include locating,

contacting, or scheduling appointments for inmates with offsite providers, but that she is only

responsible for inputting relevant information into a web-based system operated by a third party,

Inmate Health Services, LLC (“IHS”), which was responsible for contacting the offsite providers

and scheduling inmate appointments during the time frame at issue, and then communicating the

appointment information to the transportation and security officers at the TTCC. Id. at ¶¶ 4-6.

Johnson asserts that if an offsite appointment was approved by the Regional Director, she would

input the information, wait to be notified by IHS of the date, time and location of the appointment,

and then communicate that information to the security and transportation teams. Id. at ¶ 5. She

asserts that if an offsite appointment was not approved by the Regional Director, she took no

further action. Id. Johnson contends that, with respect to Plaintiff, she appropriately entered the

relevant information regarding Plaintiff’s offsite referrals into the web-based system and

communicated the relevant information to the security and transportation teams. Id. ¶ 8.

3

Plaintiff responds to the motion for summary judgment by submitting a three-page

response in opposition. See Response (Docket Entry No. 32). Plaintiff’s response is not supported

by any actual evidence nor has he filed a specific response to Johnson’s statement of undisputed

material facts. Plaintiff argues:

Here Johnson was deliberately indifferent to Bostick’s medical needs. The in-house

medical provider requested offsite consulting multiple times for Bostick. Also the

offsite providers requested follow-ups. Johnson admits to entering said request into

the web-based systems. Therefor she not only knew of his eye condition but also

the seriousness of it. Johnson also admits to doing nothing if the CoreCivic

Regional Director denied a request. . . . This was obviously done consciously and

is exposing Bostick to the excessive risk of having to maneuver one of the most

violent and understaffed prison in the country legally blind. Not to mention the

incident where Bostick fell of his bunk causing him to be on crutches for six

months.

See Response at 3. Plaintiff also contends that his claim is also based upon a violation of his rights

protected by the Tennessee Constitution and that Johnson has not contested this claim in her

motion. Id. at 1.

In reply (Docket Entry No. 33), Johnson argues that: (1) Plaintiff’s failure to respond to

her statement of undisputed material facts renders those facts undisputed in accordance with the

Local Rules of Court; (2) Plaintiff fails to show any factual or legal basis for a finding of liability

against Defendant Johnson under the Eighth Amendment; and, (3) Plaintiff’s state constitutional

claim was not recognized as a colorable claim upon initial screening and, further, the claim lacks

merit because a private right of action does not exist to pursue a claim under the Tennessee

Constitution

4

III. STANDARD OF REVIEW

A motion for summary judgment is reviewed under the standard that summary judgment

is appropriate if "the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law." Rule 56(a) of the Federal Rules of Civil

Procedure. See also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A "genuine issue of

material fact" is a fact which, if proven at trial, could lead a reasonable jury to return a verdict for

the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In reviewing

a motion for summary judgment, the Court must view the evidence and all inferences drawn from

underlying facts "in the light most favorable to the party opposing the motion." See Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., Ltd., 475 U.S. 574, 587 (1986).

The moving party has the burden of showing the absence of genuine factual disputes from

which a reasonable jury could return a verdict for the non-moving party. Anderson, at 249-50.

"Once the moving party has presented evidence sufficient to support a motion for summary

judgment, the nonmoving party is not entitled to trial merely on the basis of allegations; significant

probative evidence must be presented to support the complaint." Goins v. Clorox Co., 926 F.2d

559, 561 (6th Cir. 1991). The party opposing the motion for summary judgment may not rely

solely on the pleadings but must present evidence supporting the claims asserted by the party.

Banks v. Wolfe Cnty. Bd. of Educ., 330 F.3d 888, 892 (6th Cir. 2003). Moreover, conclusory

allegations, speculation, and unsubstantiated assertions are not evidence, and are not sufficient to

defeat a well-supported motion for summary judgment. See Lujan v. National Wildlife Fed'n, 497

U.S. 871, 888 (1990). In other words, to defeat summary judgment, the party opposing the motion

must present affirmative evidence to support his or her position; a mere "scintilla of evidence" is

5

insufficient. Bell v. Ohio State Univ., 351 F.3d 240, 247 (6th Cir. 2003) (quoting Anderson, 477

U.S. at 252).

IV. ANALYSIS

A. Eighth Amendment Standards

The government has a constitutional obligation to provide medical care for the individuals

it incarcerates, and “deliberate indifference to the serious medical needs of a prisoner constitutes

the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.” Estelle v.

Gamble, 429 U.S. 97, 103 (1976). A claim for deliberate indifference to a prisoner’s serious

medical needs has both a subjective and an objective component. See Farmer v. Brennan, 511 U.S.

825, 834 (1994); Comstock v. McCrary, 273 F.3d 693, 702 (6th Cir. 2001). Although this standard

does not require a showing that the Defendant acted with a purpose or intent to inflict harm, the

standard is nonetheless a high standard and is not satisfied by a showing of negligence. See

Estelle, 429 U.S. at 105 (“[A]n inadvertent failure to provide adequate medical care cannot be said

to constitute” a violation of the Eighth Amendment); Comstock, 273 F.3d at 703. Plaintiff must

show more than medical malpractice or negligence on the part of Johnson because the subjective

requirement acts “to prevent the constitutionalization of medical malpractice claims.” Comstock,

273 F.3d at 703. See Estelle, 429 U.S. at 105; Walker v. Norris, 917 F.2d 1449, 1454 (6th Cir.

1990); Roberts v. City of Troy, 773 F.2d 720, 724 (6th Cir. 1985).

B. Motion for Summary Judgment of Defendant Johnson

Summary judgment should be granted to Johnson because there is no evidence in the record

that would permit a reasonable jury to find in favor of Plaintiff on his Eighth Amendment claim

against her. Johnson has set forth evidence in the form of her own declaration that explains her

6

duties and her role in the provision of medical care at the TTCC and that rebuts Plaintiff’s

allegation that she acted or failed to act and thus prevented his medical surgery from being

scheduled or prevented him from attending a scheduled surgery. In the face of this affirmative

evidence from Johnson, Plaintiff cannot merely rest on the general and somewhat vague

allegations that are contained in his pleadings. He must respond with affirmative evidence

supporting his claim and establishing the existence of a genuine issue of material fact that requires

that his claim be resolved at trial. See Celotex Corp., 477 U.S. at 323-24; Chao v. Hall Holding

Co., Inc., 285 F.3d 415, 424 (6th Cir. 2002); Cloverdale Equip. Co. v. Simon Aerials, Inc., 869

F.2d 934, 937 (6th Cir. 1989).

Plaintiff has not met this burden. Indeed, he has presented no evidence in support of his

claim.1 Although Plaintiff’s pro se status requires the Court to view his filings with some measure

of leniency, see Haines v. Kerner, 404 U.S. 519, 520 (1972); Jourdan v. Jabe, 951 F.2d 108, 110

(6th Cir. 1991), this status does not require the Court to assume facts or evidence that is not in the

record or make legal arguments supporting Plaintiff’s case. See Bell v. Tennessee, 2012 WL

996560, *9 (E.D. Tenn. March 22, 2012) (quoting Thompson v. A.J. Rose Mfg. Co., 208 F.3d 215

(6th Cir. 2000). See also Brown v. Matauszak, 415 Fed.App’x 608, 613 (6th Cir. 2011); Payne v.

Secretary of Treas., 73 Fed.App'x 836, 837 (6th Cir. 2003).

A defendant cannot be held individually liable under Section 1983 for constitutional

violations absent a showing that the defendant was personally involved in some manner in the

1 Plaintiff has also failed to specifically respond to Johnson’s statement of undisputed

material facts. Local Rule 56.01(f) provides that Plaintiff=s failure to respond shall deem the facts

asserted by Johnson to be undisputed for the purposes of summary judgment.

7

allegedly unconstitutional conduct. Miller v. Calhoun County, 408 F.3d 803, 817, n.3 (6th Cir.

2005); Hardin v. Straub, 954 F.2d 1193, 1196 (6th Cir. 1992). As the party bringing this lawsuit,

Plaintiff bears the ultimate burden to set forth evidence showing specific actions or inactions that

Johnson took that prevented him from obtaining a corrective surgery, which is the underlying

alleged unconstitutional conduct.

There is no such evidence before the Court. Plaintiff’s claim against Johnson is based

entirely upon speculation and conjecture, and there is no evidence showing a link between

something she did or did not do and the ultimate failure of prison officials to provide Plaintiff with

a corrective eye surgery. Further, there is a lack of any evidence as to the necessary requirement

that Johnson’s conduct occurred as a result of deliberate indifference on her part. See Miller, 408

F.3d at 812. While it is apparently undisputed that Plaintiff was not taken for the surgery, there is

simply no evidentiary basis before the Court upon which a reasonable jury could reach a

conclusion that Johnson acted or failed to act in manner that was deliberately indifferent to

Plaintiff’s serious medical need to be taken for the corrective surgery.

Plaintiff’s contention that his case should proceed based upon a claim under the Tennessee

Constitution lacks merit. There is no cognizable private right of action for damages based upon

alleged violations of the Tennessee Constitution. See Cline v. Rogers, 87 F.3d 176, 179 (6th Cir.

1996); Knight v. Montgomery Cty., Tennessee, 470 F.Supp.3d 760, 769 n.7 (M.D. Tenn. 2020);

Siler v. Scott, 591 S.W.3d 84, 102 (Tenn. Ct. App. 2019).

8

RECOMMENDATION

Based on the foregoing, it is respectfully RECOMMENDED that the motion for summary

judgment of Defendant Laura Johnson (Docket Entry No. 25) be GRANTED and that this action

be DISMISSED WITH PREJUDICE.

ANY OBJECTIONS to this Report and Recommendation must be filed within fourteen

(14) days of service of this Report and Recommendation and must state with particularity the

specific portions of this Report and Recommendation to which objection is made. See Rule

72(b)(2) of the Federal Rules of Civil Procedure and Local Rule 72.02(a). Failure to file written

objections within the specified time can be deemed a waiver of the right to appeal the District

Court's Order regarding the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Any response to the objections

must be filed within fourteen (14) days after service of objections. See Federal Rule 72(b)(2).

Respectfully submitted,

of

ote DIL

XRBARA D. HOLMES

nited States Magistrate Judge