Bawcom v. Roades

IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

RALPH A. BAWCOM, JR., )

)

Plaintiff, )

)

v. ) NO. 3:22-cv-00923

)

DUSTY ROADES, et al., ) JUDGE RICHARDSON

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Ralph Bawcom, an inmate of the Williamson County Jail in Franklin, Tennessee,

has filed a pro se civil rights complaint under 42 U.S.C. § 1983 (Doc. No. 1), as well as a motion

for appointment of counsel (Doc. No. 3) and an application for leave to proceed in forma pauperis

(IFP) supported by a certified trust account statement. (Doc. Nos. 5, 6.)

The case is before the Court for ruling on Plaintiff’s IFP application and initial review

under the Prison Litigation Reform Act (PLRA), 28 U.S.C. §§ 1915(e)(2) and 1915A, and 42

U.S.C. § 1997e.

APPLICATION TO PROCEED IFP

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). 28 U.S.C. § 1915(a). Because it appears from Plaintiff’s

submissions that he lacks sufficient financial resources from which to pay the full filing fee in

advance, his application to proceed IFP in this matter (Doc. No. 5) is GRANTED and a $350 filing

fee1 is ASSESSED.

1 While prisoners who are not granted pauper status must pay a total fee of $402––a civil filing fee of $350

plus a civil administrative fee of $52––prisoners who are granted pauper status are only liable for the $350

The warden of the facility in which Plaintiff is currently housed, as custodian of his trust

account, is DIRECTED to submit to the Clerk of Court, as an initial payment, the greater of: (a)

20% of the average monthly deposits to Plaintiff’s credit at the jail; or (b) 20% of the average

monthly balance to Plaintiff’s credit for the six-month period immediately preceding the filing of

the Complaint. 28 U.S.C. § 1915(b)(1). Thereafter, the custodian shall submit 20% of Plaintiff’s

preceding monthly income (or income credited to Plaintiff for the preceding month), but only when

the balance in his account exceeds $10. Id. § 1915(b)(2). Payments shall continue until the $350

filing fee has been paid in full to the Clerk of Court. Id. § 1915(b)(3).

The Clerk of Court MUST send a copy of this Order to the warden of the facility in which

Plaintiff is currently housed to ensure compliance with that portion of 28 U.S.C. § 1915 pertaining

to the payment of the filing fee. If Plaintiff is transferred from his present place of confinement,

the custodian must ensure that a copy of this Order follows Plaintiff to his new place of

confinement, for continued compliance with the Order. All payments made pursuant to this Order

must be submitted to the Clerk of Court for the United States District Court for the Middle District

of Tennessee, 719 Church Street, Nashville, TN 37203.

INITIAL REVIEW OF THE COMPLAINT

I. LEGAL STANDARD

The Court is required to screen the Complaint in order to determine whether its claims are

cognizable, or whether it (or any portion of it) must be dismissed because it 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. 28 U.S.C. § 1915A(b); see id. § 1915(e)(2)(B), 42

U.S.C. § 1997e(c).

civil filing fee. See 28 U.S.C. § 1914(a)–(b) and attached District Court Miscellaneous Fee Schedule,

provision 14 (eff. Dec. 1, 2020).

The review for 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, upon “view[ing] the complaint in the light most

favorable to the plaintiff[.]” 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)). This

review only assumes that the facts alleged in the Complaint are true; allegations that consist of

legal conclusions or “‘naked assertion[s]’ devoid of ‘further factual enhancement’” are not

accepted as true. Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557

(2007)).

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) (citing 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)).

Plaintiff sues under 42 U.S.C. § 1983, which 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 cognizable Section 1983 claim, Plaintiff must allege (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 Cnty., 763

F.3d 592, 595 (6th Cir. 2014).

II. ALLEGATIONS AND CLAIMS

Plaintiff sues Williamson County Sheriff Dusty Rhoades and two individuals employed at

the Williamson County Jail––Lieutenant C. Youker and an unknown doctor––in both their

personal and their official capacities (see Doc. No. 1 at 2–3), claiming a violation of his Eighth

Amendment right to adequate medical treatment in regard to a hernia diagnosed in November

2022. (Id. at 3, 12.) Plaintiff alleges that after he requested to be seen on October 17 because he

“was in pain and needed help,” an ultrasound was performed on November 1, and he saw the

doctor on November 3, 2022. (Id. at 12.) The doctor told him that “the county did not have the

money to fix [his] hernia.” (Id.) When Plaintiff grieved this outcome, Lt. Youker responded to his

grievance by stating that “it was not life threatening so the jail would not pay” for surgery. (Id. at

7–8.) Plaintiff alleges that his hernia “gives [him] pain day and night” (id. at 7) and asserts that his

injury in this action is the failure to order surgery “because the county financially could not pay to

have it fixed.” (Id. at 5, 13.) As relief, he seeks an order directing that his hernia be repaired, as

well as an award of damages for pain and suffering. (Id. at 5.)

III. ANALYSIS

The Eighth Amendment protects inmates from “cruel and unusual punishments,” U.S.

CONST. amend. VIII, a category which includes deliberate indifference to their serious medical

needs while incarcerated. Brawner v. Scott Cnty., Tennessee, 14 F.4th 585, 591 (6th Cir. 2021)

(citing Richmond v. Huq, 885 F.3d 928, 937 (6th Cir. 2018)). A deliberate-indifference claim has

an objective and a subjective component. “To meet the objective component, the plaintiff must

show that the medical need is ‘sufficiently serious,’” and “[t]o meet the subjective component, the

plaintiff must show that ‘an official kn[ew] of and disregard[ed] an excessive risk to inmate health

or safety.’” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 834, 837 (1994)). The defendant

official’s subjective culpability is established by demonstrating that the official was both “aware

of facts from which an inference of substantial risk of serious harm to inmate health or safety could

be drawn,” and that he “actually drew the inference.” Id.

The Complaint’s allegations establish, for purposes of initial review, that Plaintiff has been

diagnosed with a hernia that produces pain “day and night,” and which could be surgically

repaired, but which Defendants have declined to repair on grounds that the cost of such a procedure

to remedy a non-life-threatening condition is too great. The Complaint does not allege whether or

not Plaintiff is receiving other, nonsurgical treatment for his hernia-related pain. At this initial

stage of the proceedings, and liberally construing the Complaint in Plaintiff’s favor, he has

sufficiently alleged the denial, for a nonmedical reason, of treatment that would remedy his

objectively serious medical condition, by Defendants (Youker and the unnamed doctor) who knew

that condition to be painful. See Delker v. Maass, 843 F. Supp. 1390, 1399 (D. Or. 1994) (finding

Eighth Amendment violation where inmate’s hernia surgery was withheld for nonmedical reasons,

despite fact that “plaintiff clearly suffered some degree of needless pain, anxiety, and restricted

body function” due to unrepaired hernia; observing that “[w]here surgery is elective, prison

officials may properly consider the costs and benefits of treatment in determining whether to

authorize that surgery, but the words ‘elective surgery’ are not a talisman insulating prison officials

from the reach of the Eighth Amendment” in every case).

Plaintiff has thus at least colorably claimed that the denial of hernia surgery amounts to

“the unnecessary and wanton infliction of pain” that the Eighth Amendment forbids. Estelle v.

Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291, 50 L. Ed. 2d 251 (1976). Further development of

the facts may reveal that Plaintiff’s hernia condition is not sufficiently serious to be of

constitutional concern, or that nonsurgical treatment is appropriate as a matter of professional

medical judgment, in addition to being cost-effective. See Ocampo v. Noel, No. CV 3:19-0091,

2022 WL 288188, at *9 (M.D. Pa. Jan. 31, 2022) (granting summary judgment to prison doctor

accused of denying hernia surgery due to cost constraints; finding that doctor is not “required to

be blind to assessing the risks and costs of various treatment options”); Hamby v. Hammond, No.

3:14-CV-05065-RBL, 2015 WL 1263253, at *23 (W.D. Wash. Mar. 19, 2015), aff’d, 821 F.3d

1085 (9th Cir. 2016) (finding that “complete pain relief is not the standard for establishing

deliberate indifference,” and that decision to treat residual pain from reducible hernia non-

surgically, “where treatment providers conclude surgery is not necessary or recommended,” does

not violate Eighth Amendment). At this point, however, his Eighth Amendment claim will survive

initial review and proceed against the unnamed doctor (who allegedly declined to order surgery,

and whose identity Plaintiff will be responsible for ascertaining) and Lt. Youker (who allegedly

rejected Plaintiff’s grievance over the denial of surgery) in their individual capacity.

The Defendants are also sued in their official capacity. “Official capacity claims are

equivalent to claims against a defendant’s employer,” Perkins v. Washburn, No. 3:19-cv-00959,

2020 WL 3972749, at *8 (M.D. Tenn. July 14, 2020) (citing Alkire v. Irving, 330 F.3d 802, 810

(6th Cir. 2003) (holding that “individuals sued in their official capacities stand in the shoes of the

entity they represent”)), which in this case appears to be Williamson County. “To plead a claim

for municipal liability under § 1983, Plaintiff must plausibly allege that his or her constitutional

rights were violated and that a policy or custom of [the municipality] was the ‘moving force’

behind the deprivation of Plaintiff’s rights.” Okolo v. Metro. Gov’t of Nashville, 892 F. Supp. 2d

931, 941 (M.D. Tenn. 2012) (citing Miller v. Sanilac Cnty., 606 F.3d 240, 254–55 (6th Cir. 2010)).

In light of Plaintiff’s allegations that he was denied surgery based on the inability or unwillingness

of “the jail” or “the county” to pay for hernia surgery (Doc. No. 1 at 7, 12–13), the Court finds, for

purposes of initial review, that Williamson County’s alleged payment policy is sufficiently

implicated to allow the official-capacity claims against its employees to go forward.

With regard to Sheriff Rhoades, the Complaint names him as a Defendant but does not

allege his personal involvement with the surgery decision at issue, nor does it otherwise assert any

claim against him. Even if the Complaint is liberally construed to assert Sheriff Rhoades’s

supervisory liability for the violations alleged to have occurred under his watch, supervisory

liability requires some sort of active involvement with––rather than a mere failure of action to

prevent––unconstitutional behavior that proximately causes injury to the plaintiff. Crawford v.

Tilley, 15 F.4th 752, 761–62 (6th Cir. 2021). Because Plaintiff does not allege any action at all by

Sheriff Rhoades, much less “active unconstitutional conduct,” he fails to colorably claim

Rhoades’s supervisory liability for the deliberate indifference of any subordinate official. Id. at

767; see also Green v. Correct Care Sols., No. 3:14-cv-01070, 2014 WL 1806997, at *4 (M.D.

Tenn. May 7, 2014) (citing cases) (“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.”). Accordingly, Sheriff Rhoades will be dismissed

from this action.

MOTION TO APPOINT COUNSEL

Plaintiff has filed a Motion to Appoint Counsel. (Doc. No. 3.) An indigent plaintiff in a

civil action, unlike a criminal defendant, has no constitutional right to the appointment of counsel;

rather, the appointment of counsel in such cases is a privilege “justified only in exceptional

circumstances.” Miles v. Michigan Dep’t of Corr., No. 19-2218, 2020 WL 6121438, at *4 (6th Cir.

Aug. 20, 2020) (citing Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir. 2003), and Lavado v.

Keohane, 992 F.2d 601, 606–07 (6th Cir. 1993)). As no such circumstances are yet readily

apparent, the Motion to Appoint Counsel will be denied without prejudice to renewal if

circumstances warrant after service of process is accomplished.

CONCLUSION

As described above, Plaintiff’s IFP application (Doc. No. 5) is GRANTED, and the $350

filing fee is ASSESSED against his inmate trust account.

The Court finds that the Complaint states a nonfrivolous Eighth Amendment claim against

the unnamed doctor and Lt. Youker. Accordingly, the Clerk is INSTRUCTED to send Plaintiff

service packets (blank summonses and USM 285 forms) for both of these Defendants.

Because process cannot be served upon unidentified individuals, Plaintiff is put on notice

of his obligation to conduct a reasonable investigation or, if necessary, to conduct limited

discovery to promptly determine the full name of the doctor he sues. Plaintiff MUST identify this

Defendant and complete and return his service packet to the Clerk’s Office, so that process can be

served within 90 days as required by Fed. R. Civ. P. 4(m). Plaintiff MUST also file a timely motion

pursuant to Fed. R. Civ. P. 15(a) for leave to amend his Complaint to correctly name the Defendant

he identifies. Plaintiff is warned that failure to comply with these instructions could jeopardize his

case against this Defendant.

Upon return of the completed service packets, PROCESS SHALL ISSUE.

The Complaint fails to state a claim against Sheriff Rhoades, who is therefore

DISMISSED from this action.

Plaintiff's Motion to Appoint Counsel (Doc. No. 3) is DENIED.

The Court’s determination that the Complaint states a colorable claim for purposes of this

initial screening does not preclude the Court from dismissing any claim at any time for the reasons

set forth in 28 U.S.C. § 1915(e)(2), nor does it preclude any Defendant from filing a motion to

dismiss any claim under Federal Rule of Civil Procedure 12.

This action is REFERRED to the Magistrate Judge to enter a scheduling order for the

management of the case, to dispose or recommend disposition of any pretrial motions under 28

U.S.C. §§ 636(b)(1)(A) and (B), and to conduct further proceedings, if necessary, under Rule 72(b)

of the Federal Rules of Civil Procedure and the Local Rules of Court.

IT IS SO ORDERED.

ELI RICHARDSON

UNITED STATES DISTRICT JUDGE