McComsey v. Stokes

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TENNESSEE

EASTERN DIVISION

JEFFREY MCCOMSEY, )

)

Plaintiff, )

)

VS. ) No. 20-1095-JDT-cgc

)

MYRON STOKES, ET AL., )

)

Defendants. )

ORDER TO MODIFY THE DOCKET,

DENYING MOTION TO APPOINT COUNSEL,

GRANTING MOTION TO AMEND,

PARTIALLY DISMISSING CASE, AND DIRECTING

THAT PROCESS BE ISSUED AND SERVED ON DEFENDANT ROBERTSON

On April 27, 2020, Plaintiff Jeffrey McComsey, who is incarcerated at the

Whiteville Correctional Facility (WCF) in Whiteville, Tennessee, filed a pro se complaint

pursuant to 42 U.S.C. § 1983 and a motion to proceed in forma pauperis. (ECF

Nos. 1 & 2.) The Court subsequently granted leave to proceed in forma pauperis and

assessed the civil filing fee pursuant to the Prison Litigation Reform Act (PLRA), 28

U.S.C. §§ 1915(a)-(b). (ECF No. 10.) McComsey also has filed a motion to amend the

complaint to name CoreCivic as an additional defendant, (ECF No. 11); that motion is

GRANTED. The Clerk shall record the Defendants as Myron Stokes, a physician at the

WCF; Tazma Robertson, a nurse at the WCF; Tony Parker, Commissioner of the Tennessee

Department of Correction (TDOC); Samuel Rogers, WCF Warden; and CoreCivic, a

private company that manages the WCF.1 The individual Defendants are sued in both their

official and individual capacities.

Though McComsey demanded a jury trial in the complaint, (see ECF No. 1 at

PageID 8), the Clerk inadvertently did not record that jury demand on the docket.

McComsey filed a second jury demand on May 4, 2020. (ECF No. 5.) The Clerk is

directed to MODIFY the docket to show that McComsey has demanded a jury in this case.

McComsey also filed a motion for appointment of counsel. (ECF No. 9.) Pursuant

to 28 U.S.C. § 1915(e)(1), the “court may request an attorney to represent any person

unable to afford counsel.” However, “[t]he appointment of counsel in a civil proceeding

is not a constitutional right.” Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir. 2003); see

also Shepherd v. Wellman, 313 F.3d 963, 970 (6th Cir. 2002) (“[T]he plaintiffs were not

entitled to have counsel appointed because this is a civil lawsuit.”); Lavado v. Keohane,

992 F.2d 601, 605-06 (6th Cir. 1993) (no constitutional right to counsel in a civil case);

Farmer v. Haas, 990 F.2d 319, 323 (7th Cir. 1993) (“There is no constitutional or . . .

statutory right to counsel in federal civil cases . . . .”). Appointment of counsel is “a

privilege that is justified only by exceptional circumstances.” Lavado, 992 F.2d at 606

(internal quotation marks and citation omitted).

1 See www.tn.gov/content/tn/correction/sp/state-prison-list/whiteville-correctional-

facility.html (Whiteville Correctional Facility (WCFA) is a time-building prison with a security

designation of medium. WCFA is managed by CoreCivic, a private corrections management

firm.”).

“In determining whether ‘exceptional circumstances’ exist, courts have examined

the type of case and the abilities of the plaintiff to represent himself. This generally

involves a determination of the complexity of the factual and legal issues involved.” Id. at

606 (internal quotation marks and citations omitted). Appointment of counsel is not

appropriate when a pro se litigant’s claims are frivolous or when his chances of success

are extremely slim. Id. (citing Mars v. Hanberry, 752 F.2d 254, 256 (6th Cir. 1985)); see

also Cleary v. Mukasey, 307 F. App’x 963, 965 (6th Cir. 2009) (same). “[I]n contrast to

criminal defendants, civil litigants unable to afford counsel cannot ordinarily” have counsel

appointed unless “there is a risk of loss of liberty, as in mental commitment or juvenile

delinquency proceedings.” Iannaccone v. Law, 142 F.3d 553, 556 (2d Cir. 1998), cited in

Shepherd v. Wellman, 313 F.3d 963, 970 (6th Cir. 2002).

The only reasons McComsey offers to justify appointment of counsel is that he is

indigent and incarcerated and that an attorney would be better able to present evidence and

cross-examine witnesses if this case goes to trial. None of those things, either separately

or combined, amounts to exceptional circumstances warranting the appointment of counsel

in this case. The motion to appoint counsel is DENIED.

McComsey alleges in his complaint that in August of 2019 he submitted a sick call

request to see a doctor about swelling in his left leg and foot. (ECF No. 1 at PageID 4.)

On August 28, 2019, he saw Nurse Drummond, who is not named as a defendant, and

Nurse Drummond referred him to see the doctor, Defendant Stokes, the next day. (Id.)

However, McComsey did not see Dr. Stokes the next day; instead, he saw Defendant Nurse

Robertson on August 30, 2019, and complained that his leg was swollen and he was in

severe pain. (Id.)

McComsey alleges he was taken to see Dr. Hayden, an outside medical provider in

Jackson, Tennessee, on September 1, 2019. (Id.) Dr. Hayden ordered an ultrasound and

allegedly determined that McComsey had a blood clot in his left leg. (Id.) The next day,

McComsey was issued a wheelchair at the WCF because of his pain. However, on

September 30, 2019, Defendant Robertson allegedly took away McComsey’s wheelchair,

“saying basically he needs to suffer through the pain.” (Id.) McComsey further alleges

that as of April 11, 2020, his left leg was still swollen and painful but he was not being

allowed to have a wheelchair. (Id. at PageID 5.) Thus he asserts he is forced to walk on

his left leg and foot, which allegedly causes him “severe pain and anguish.” (Id.)

McComsey asserts the denial of a wheelchair constitutes cruel and unusual punishment and

deliberate indifference. (Id. at PageID 5, 6.) He seeks declaratory and injunctive relief and

both compensatory and punitive damages. (Id. at PageID 8-9.)2

The Court is required to screen prisoner complaints and to dismiss any complaint,

or any portion thereof, if the complaintC

(1) is frivolous, malicious, or fails to state a claim upon which relief may

be granted; or

2 At the end of the factual allegations in the complaint, McComsey states: “Please see

copy of time line as well as Grievance’s [sic] attached.” (Id. at PageID 5.) However, there were

no exhibits of any kind accompanying the complaint when it was received and docketed by the

Clerk.

(2) seeks monetary relief from a defendant who is immune from such

relief.

28 U.S.C. § 1915A(b); see also 28 U.S.C. § 1915(e)(2)(B).

In assessing whether the complaint in this case states a claim on which relief may

be granted, the standards under Fed. R. Civ. P. 12(b)(6), as stated in Ashcroft v. Iqbal, 556

U.S. 662, 677-79 (2009), and in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57

(2007), are applied. Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). The Court

accepts the complaint’s “well-pleaded” factual allegations as true and then determines

whether the allegations “plausibly suggest an entitlement to relief.’” Williams v. Curtin,

631 F.3d 380, 383 (6th Cir. 2011) (quoting Iqbal, 556 U.S. at 681). Conclusory allegations

“are not entitled to the assumption of truth,” and legal conclusions “must be supported by

factual allegations.” Iqbal, 556 U.S. at 679. Although a complaint need only contain “a

short and plain statement of the claim showing that the pleader is entitled to relief,” Fed.

R. Civ. P. 8(a)(2), Rule 8 nevertheless requires factual allegations to make a “‘showing,’

rather than a blanket assertion, of entitlement to relief.” Twombly, 550 U.S. at 555 n.3.

“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 (quoting Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004)). Pro se litigants,

however, are not exempt from the requirements of the Federal Rules of Civil Procedure.

Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989); see also Brown v. Matauszak, 415 F.

App’x 608, 612, 613 (6th Cir. Jan. 31, 2011) (affirming dismissal of pro se complaint for

failure to comply with “unique pleading requirements” and stating “a court cannot ‘create

a claim which [a plaintiff] has not spelled out in his pleading’” (quoting Clark v. Nat’l

Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975))).

McComsey filed his complaint pursuant to 42 U.S.C. § 1983, which provides:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws, shall be liable

to the party injured in an action at law, suit in equity, or other proper

proceeding for redress . . . .

To state a claim under § 1983, a plaintiff must allege two elements: (1) a deprivation of

rights secured by the “Constitution and laws” of the United States (2) committed by a

defendant acting under color of state law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150

(1970).

McComsey does not state a valid claim against any of the Defendants in their official

capacities. With regard to Defendant Parker, the TDOC Commissioner, any official

capacity claims against him are treated as claims against the State of Tennessee. See Will

v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). McComsey, however, does not

state a valid claim against the State of Tennessee. The Eleventh Amendment to the United

States Constitution provides that “[t]he Judicial power of the United States shall not be

construed to extend to any suit in law or equity, commenced or prosecuted against one of

the United States by Citizens of another State, or by Citizens or Subjects of any Foreign

State.” U.S. Const. amend. XI. The Eleventh Amendment has been construed to prohibit

citizens from suing their own states in federal court. Welch v. Tex. Dep’t of Highways &

Pub. Transp., 483 U.S. 468, 472 (1987); Pennhurst State Sch. & Hosp. v. Halderman, 465

U.S. 89, 100 (1984); see also Va. Office for Protection & Advocacy v. Stewart, 563 U.S.

247, 253-54 (2011) (“A State may waive its sovereign immunity at its pleasure, and in

some circumstances Congress may abrogate it by appropriate legislation. But absent

waiver or valid abrogation, federal courts may not entertain a private person’s suit against

a State.” (citations omitted)). Tennessee has not waived its sovereign immunity and

therefore may not be sued for damages. See Tenn. Code Ann. § 20-13-102(a). Moreover,

a state is not a person within the meaning of 42 U.S.C. § 1983. Lapides v. Bd. of Regents

of the Univ. Sys. of Ga., 535 U.S. 613, 617 (2002); Will, 491 U.S. at 71.

The Supreme Court has clarified, however, that “a state official in his or her official

capacity, when sued for injunctive relief, would be a person under § 1983 because

‘official-capacity actions for prospective relief are not treated as actions against the State.’”

Will, 491 U.S. at 71 n.10 (quoting Kentucky v. Graham, 473 U.S. 159, 167 n. 14 (1985),

and Ex Parte Young, 209 U.S. 123, 159-60 (1908)); see also Thiokol Corp. v. Dep’t of

Treasury, State of Mich., Revenue Div., 987 F.2d 376, 381 (6th Cir. 1993) (“[T]he

[eleventh] amendment does not preclude actions against state officials sued in their official

capacity for prospective injunctive or declaratory relief.” (citing Ex Parte Young, 209 U.S.

123)).

To proceed with official-capacity claims for prospective injunctive relief against

Defendant Parker, McComsey must allege that the State of Tennessee was responsible for

the violation of his constitutional rights because of a practiced custom or policy. Kentucky

v. Graham, 473 U.S. 159, 16-67 (1985); Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691

(1978). The Sixth Circuit has held that to establish the requisite causal link between

constitutional violation and policy, a plaintiff must “identify the policy, connect the policy

to the [entity] itself and show that the particular injury was incurred because of the

execution of that policy.” Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir.

1993). The custom or policy must be “the moving force” behind the deprivation of the

plaintiff’s rights. Powers v. Hamilton Cnty. Pub. Defender Comm’n, 501 F.3d 592, 606-

07 (6th Cir. 2007) (citing Monell, 436 U.S. at 694). Because McComsey does not allege

that a State policy was the “moving force” behind the alleged violation of his rights, he

does not state a claim against Defendant Parker in his official capacity.

McComsey’s official-capacity claims against the WCF Defendants are treated as

claims against their employer, Defendant CoreCivic. However, McComsey also fails to

state a claim against CoreCivic. “A private corporation that performs the traditional state

function of operating a prison acts under color of state law for purposes of § 1983.”

Thomas v. 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)). The Sixth Circuit has applied the standards for

assessing municipal liability to claims against private corporations that operate prisons or

that provide medical care or food services to prisoners. Id. 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); see also

Eads v. State of Tenn., No. 1:18-cv-00042, 2018 WL 4283030, at *9 (M.D. Tenn. Sept. 7,

2018). CoreCivic “cannot be held liable under a theory of respondeat superior.” Braswell

v. Corr. Corp. of Am., 419 F. App’x 622, 627 (6th Cir. 2011). To prevail on a § 1983 claim

against CoreCivic, McComsey again must show that the alleged deprivation of his rights

was due to a policy or custom of the company. Id. McComsey, however, does not allege

that his injuries are the result of an unconstitutional policy or custom of CoreCivic. He

therefore fails to state a claim against CoreCivic or against the WCF Defendants in their

official capacities.

McComsey also does not state a valid claim against Defendants Parker or Rogers in

their individual capacities. The complaint alleges no wrongdoing against these Defendants,

and when a complaint fails to allege any action by a Defendant, it necessarily fails to “state

a claim for relief that is plausible on its face.” Twombly, 550 U.S. at 570. Instead, it is

evident that McComsey sues Parker and Rogers only because of their respective positions

as the TDOC Commissioner and WCF Warden. However, under § 1983, “[g]overnment

officials may not be held liable for the unconstitutional conduct of their subordinates under

a theory of respondeat superior.” Iqbal, 556 U.S. at 676; see also Bellamy v. Bradley, 729

F.2d 416, 421 (6th Cir. 1984). Thus, “a plaintiff must plead that each Government-official

defendant, through the official’s own individual actions, has violated the Constitution.”

Iqbal, 556 U.S. at 676.

There must be a showing that the supervisor encouraged the specific incident

of misconduct or in some other way directly participated in it. At a minimum,

a § 1983 plaintiff must show that a supervisory official at least implicitly

authorized, approved or knowingly acquiesced in the unconstitutional

conduct of the offending subordinates.

Bellamy, 729 F.2d at 421 (citation omitted). A supervisory official who is aware of the

unconstitutional conduct of his subordinates but fails to act generally cannot be held liable

in his individual capacity. Grinter v. Knight, 532 F.3d 567, 575-76 (6th Cir. 2008);

Gregory v. City of Louisville, 444 F.3d 725, 751 (6th Cir. 2006). In addition, a failure to

take corrective action in response to an inmate grievance or complaint does not supply the

necessary personal involvement for § 1983 liability. See George v. Smith, 507 F.3d 605,

609-10 (7th Cir. 2007) (“Ruling against a prisoner on an administrative complaint does not

cause or contribute to the [constitutional] violation. A guard who stands and watches

while another guard beats a prisoner violates the Constitution; a guard who rejects an

administrative complaint about a completed act of misconduct does not.”). McComsey

does not allege that either Parker or Rogers, through their own actions, violated his

constitutional rights.

With regard to McComsey’s individual-capacity claims against Defendants Stokes

and Robertson, the claims arise under the Eighth Amendment, which prohibits cruel and

unusual punishments. See generally Wilson v. Seiter, 501 U.S. 294, 297 (1991). Under

Estelle v. Gamble, 429 U.S. 97, 104 (1976), “deliberate indifference to serious medical

needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain’ . . .

proscribed by the Eighth Amendment.” To state a cognizable claim, “a prisoner must

allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious

medical needs. It is only such indifference that can offend ‘evolving standards of decency’

in violation of the Eighth Amendment.” Id. at 106.

An Eighth Amendment claim consists of both objective and subjective components.

Farmer v. Brennan, 511 U.S. 825, 834 (1994); Hudson v. McMillian, 503 U.S. 1, 8 (1992);

Wilson, 501 U.S. at 298. The objective component of an Eighth Amendment claim based

on a lack of medical care requires that a prisoner have a serious medical need. Blackmore

v. Kalamazoo Cnty., 390 F.3d 890, 895 (6th Cir. 2004); Brooks v. Celeste, 39 F.3d 125,

128 (6th Cir. 1994). For purposes of this order, the Court assumes that McComsey’s

alleged blood clot was a serious medical need.

To establish the subjective component of an Eighth Amendment violation,

a prisoner must demonstrate that the defendant acted with the requisite intent, that is, that

he had a “sufficiently culpable state of mind.” Farmer, 511 U.S. at 834; see also Wilson,

501 U.S. at 302-03. The plaintiff must show that the defendants acted with “deliberate

indifference” to a substantial risk that the prisoner would suffer serious harm. Farmer,

511 U.S. at 834; Wilson, 501 U.S. at 303; Dominguez v. Corr. Med. Servs., 555 F.3d 543,

550 (6th Cir. 2009); Woods v. Lecureux, 110 F.3d 1215,1222 (6th Cir. 1997). “[D]eliberate

indifference describes a state of mind more blameworthy than negligence.” Farmer,

511 U.S. at 835. A defendant cannot be found liable under the Eighth Amendment unless

he subjectively knows of an excessive risk of harm to an inmate’s health or safety and

disregards that risk. Id. at 837.

The only allegation in the complaint concerning Defendant Stokes is that on August

28, 2019, Nurse Drummond referred McComsey to see Stokes the next day but that

McComsey did not actually see Stokes. Instead, he saw Defendant Robertson on August

30th. McComsey does not allege that Stokes at that time knew of an excessive risk to

McComsey’s health and yet intentionally refused to see him. McComsey also does not

allege that Stokes ever examined him or provided inadequate treatment for the blood clot

on any other occasion. Thus, McComsey has not stated an Eighth Amendment claim

against Defendant Stokes.

Construing the allegations against Defendant Robertson liberally, McComsey

alleges that Robertson examined him on August 30th, at which time he complained of

severe pain in his leg. After McComsey allegedly was diagnosed with a blood clot and

was given a wheelchair, Robertson allegedly took away the wheelchair even though she

knew McComsey still had severe pain in his leg and foot and could not walk without

difficulty. The Court finds these allegations state a plausible, albeit minimal, Eighth

Amendment claim of deliberate indifference to a serious medical need.

In conclusion, with the exception of his individual-capacity claim against Defendant

Robertson, all of McComsey’s claims are DISMISSED for failure to state a claim on which

relief may be granted, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).

McComsey’s Eighth Amendment claim of deliberate indifference against Defendant

Robertson will proceed.

It is ORDERED that the Clerk shall issue process for Defendant Nurse Tazma

Robertson and deliver that process to the U.S. Marshal for service. Service shall be made

on Defendant Robertson pursuant to Federal Rule of Civil Procedure 4(e) and Tennessee

Rules of Civil Procedure 4.04(1) and (10) by registered or certified mail or personally if

mail service is not effective. All costs of service shall by advanced by the United States.

It is further ORDERED that McComsey shall serve a copy of every subsequent

document he files in this case on the attorneys for Defendant Robertson or on Defendant

Robertson personally if she is unrepresented. McComsey shall make a certificate of service

on every document he files. McComsey shall familiarize himself with the Federal Rules

of Civil Procedure and this Court’s Local Rules.3

McComsey is reminded that he must promptly notify the Clerk of any change of

address or extended absence. Failure to comply with these requirements, or any other order

of the Court, may result in the dismissal of this case without further notice.

IT IS SO ORDERED.

s/ James D. Todd

JAMES D. TODD

UNITED STATES DISTRICT JUDGE

3 A copy of the Local Rules may be obtained from the Clerk or on the Court’s website at

https://www.tnwd.uscourts.gov/pdf/content/LocalRules.pdf.