Vick v. Core Civic

• Citation: 329 F.Supp.3d 426
• Decision Date: 11 June 2018
• Docket Number: No. 1:18–cv–00003,1:18–cv–00003
• Parties: Jasper Lee VICK, # 139471, Plaintiff, v. CORE CIVIC, et al., Defendants.
• Court: U.S. District Court — Middle District of Tennessee

329 F.Supp.3d 426

Jasper Lee VICK, # 139471, Plaintiff,

v.CORE CIVIC, et al., Defendants.

No. 1:18–cv–00003

United States District Court, M.D. Tennessee, Columbia Division.

Filed June 11, 2018

Jasper Lee Vick, Clifton, TN, pro se.

CHIEF JUDGE CRENSHAW

MEMORANDUM OPINION

Jasper Lee Vick, an inmate of the South Central Correctional Facility (SCCF) in Clifton, Tennessee, brings this pro se, in forma pauperis action under 42 U.S.C. § 1983 against Core Civic, Corrections Care of America (CCA), the Tennessee Department of Correction (TDOC), TDOC Commissioner Tony Parker, Core Civic Chief Executive Officer Damon Hinninger, SCCF nurse Westray, Trousdale Turner Correctional Facility (TTCC) food steward Compton, TTCC staff advisor K. Walton, TTCC Chief of Security Cox, TTCC TDOC Liaison Chris Brum, SCCF TDOC Liaison Robert Cole Thurman, TTCC Administrative Warden Blair Liebach, SCCF Administrative Warden Cherry Lindamood, TTCC Assistant Warden J. Wardlow, TTCC Assistant Warden of Programs Yolanda Pittman, TTCC Chief of Unit Managers J. Veal, TTCC Unit Manager M. Dethrow, TTCC Inmate Relation Counsel V. Jenkins, TTCC Disciplinary Hearing Officer J. Garner, TTCC Case Manager B. Peterson, TTCC Unit Manager S. Payne, TTCC corrections officer V. McVay, TTCC corrections officer M. Otjens, TTCC corrections officer Cole, TTCC corrections officer Price, SCCF nurse Clenny, SCCF nurse Westray, SCCF Health Administrator J. Garner, SCCF nurse Heather Banks, SCCF corrections officer Daniel Harville, SCCF corrections officer Brandy White, SCCF corrections officer James Bumphus, SCCF corrections officer Wesson, SCCF grievance coordinator Leigh Staggs, SCCF mailroom personnel Lineberry, SCCF corrections officer Sharvon Harris, SCCF nurse Brandi Keeton, SCCF Assistant Warden Danny Dodd, SCCF Assistant Warden of Security Scotty Peeler, SCCF nurse practitioner Kelley, SCCF Captain G. Keeton, SCCF Disciplinary Hearing Officer G. Gonzales, SCCF mailroom personnel H. Nava, and SCCF Disciplinary Hearing Officer B. Pevahouse, alleging violations of the Plaintiff's civil rights. (Doc. No. 1). The complaint is before the Court for an initial review pursuant to the Prison Litigation Reform Act ("PLRA"), 28 U.S.C. §§ 1915(e)(2) and 1915A.

I. Three Strikes Analysis

The Prison Litigation Reform Act (PLRA) provides the following under § 1915(g) with respect to prisoner-plaintiffs:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

28 U.S.C. § 1915(g). In other words, a prisoner-plaintiff who falls within the scope of § 1915(g) because of three or more previous "strikes" must pay the entire filing fee at the outset of the case, unless he or she is under imminent danger of serious physical injury. Wilson v. Yaklich, 148 F.3d 596, 603–04 (6th Cir. 1998), cert. denied, 525 U.S. 1139, 119 S.Ct. 1028, 143 L.Ed.2d 38 (1999).

Vick is subject to the "three-strikes" provision under 28 U.S.C. § 1915(g) because he has, on at least three prior occasions, filed a civil action or an appeal that has been dismissed for failure to state a claim upon which relief could be granted.¹

To fall within the statutory exception to the "three-strikes" rule, a prisoner must allege that the threat or prison condition is "real and proximate" and that the danger of serious physical injury exists at the time the complaint is filed. See Rittner v. Kinder, 290 Fed. Appx. 796, 797–98 (6th Cir. 2008) (citation omitted). A prisoner's assertion that he faced danger in the past is insufficient to invoke the exception. Id . Therefore, pursuant to Section 1915(g) of the PLRA, the Plaintiff may pursue the instant action as a pauper only if he is under imminent danger of serious physical injury.

The complaint alleges that the Plaintiff, an inmate of TDOC, was housed at the TTCC from February 3, 2016, to May 22, 2017, and has been housed at SCCF since May 22, 2017. (Doc. No. 1 at 1). The Plaintiff suffers from insulin

dependent, or Type 1, diabetes. (Id. ) He explains that "a person with Type 1 diabetes must receive insulin from an outside source in order to survive." (Id. at 20). He continues:

Insulin

is typically administered through injections or use of an insulin pump....Failure to administer insulin in a timely manner to a person with Type 1 diabetes can lead to diabetic ketoacidosis. DKA is a potentially fatal condition caused by severely elevated blood glucose levels. Similarly, failure to appropriately monitor blood glucose levels, or delayed access to food after insulin is administered, can lead to drastic drop in blood glucose levels resulting in the diabetic losing consciousness, or going into a coma or dying.

(Id. at 21).

The complaint alleges that, at both facilities, "due to understaffing and undertraining, reasonable accommodations for persons with insulin-dependent diabetes

are either not available or [are] routinely denied, and Constitutional rights or privileges are routinely hindered, impaired or denied the free exercise and enjoyment thereof." (Id. at 2). The complaint more specifically alleges that all persons with insulin dependent diabetes presently incarcerated at TTCC and SCCF lack access to basic diabetes care, including blood glucose checks and insulin administration coordinated with regular mealtimes and an appropriate diet. (Id. at 3, 20). For example, the complaint alleges that, upon the Plaintiff's arrival to TTCC, he was not seen by a doctor after his arrival for a period of nearly seven months. (Id. at 19). The complaint further alleges that corrections officers at times skip medications call for diabetics if the officers are too busy, which puts the diabetic inmates at risk for serious health complications. (Id. at 30).

Additionally, the complaint alleges that during periods of lockdowns and at other times of restricted movement, including August 29, 2016 through September 18, 2016 at TTCC, and on June 5, 2017, and July 21–19, 2017 at SCCF, inmates including the Plaintiff must rely on corrections staff to provide access to medical staff for diabetic care. (Id. at 26). During these periods, inmates are given meals in their cells, meals are provided at irregular times, and diabetic inmates are not allowed to check their glucose or receive insulin injections

until after their meals; the complaint alleges that "[s]uch unconscionable delays in receiving basic diabetes care is the functional equivalent of receiving no care at all and is the direct result of Defendant CCA's policy or practice of understaffing and undertraining." (Id. ) The complaint alleges that, as a result of being denied access to basic diabetes care, the Plaintiff has experienced numerous diabetes-related complications including degraded vision, diabetic neuropathy, kidney disfunction, heart palpitations, and heart disease. (Id. at 27, 54). The complaint also alleges that, due to the staffing levels and lack of training at both facilities, the delays in receiving basic diabetes care "has recurred several times, with the high likelihood of recurrence in the future." (Id. at 26).

The imminent-danger exception is a pleading requirement subject to the ordinary principles of notice pleading. Vandiver v. Prison Health Servs., Inc., 727 F.3d 580, 585 (6th Cir. 2013). Under this standard, the plaintiff must "allege[ ] facts from which a court, informed by its judicial experience and common sense, could draw the reasonable inference that [he] was under an existing danger at the time he filed his complaint." Id. (internal quotation marks and citation omitted). To support a finding of sufficiently imminent danger, "the threat or prison condition must be real and proximate and the danger of serious physical injury must exist at the time the complaint is filed." Id. (citing Rittner v. Kinder, 290 Fed.Appx. 796, 797 (6th Cir. 2008) ). "Thus a prisoner's assertion that he or she faced danger in the past is insufficient to invoke the exception." Id. (citations omitted). In an unpublished opinion, the Sixth Circuit has held that "[f]ailure to receive adequate treatment for potentially life-threatening illnesses...clearly constitutes ‘imminent danger’ under the [PLRA]." Vandiver v. Vasbinder, 416 Fed.Appx. 560, 562–63 (6th Cir. 2011) (citing Ibrahim v. District of Columbia, 463 F.3d 3, 6–7 (D.C. Cir. 2006) (holding that "failure to provide adequate treatment for Hepatitis C

, a chronic and potentially fatal disease, constitutes ‘imminent danger’ ") ). In a later, published opinion in a case filed by the same plaintiff, the Court reaffirmed that "a plaintiff who alleges a danger of serious harm due to a failure to treat a chronic illness or condition satisfies the imminent-danger exception under § 1915(g)." Vandiver v. Prison Health Servs., Inc., 727 F.3d 580, 587 (6th Cir. 2013). Other circuits have similarly held that failure to treat "serious medical needs" may satisfy the imminent-danger requirement. See, e.g.,

Partin v. Harmon, 113 Fed.Appx. 717, 718 (8th Cir. 2004) (finding that plaintiff's allegations were sufficient to meet imminent-danger exception where he alleged that he was denied treatment for treatment for tuberculosis, prostate cancer, and colon cancer, deprived of prosthetic support boots, denied medical care for an injured knee and ankle, and forced to work against medical restrictions).

Some courts have rejected a requirement that the district courts scrutinize the seriousness of the continuing injury before granting a three-striker leave to proceed in forma pauperis. For example, in Ciarpaglini v. Saini, 352 F.3d 328 (7th Cir. 2003), the plaintiff alleged imminent danger resulting...