UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TENNESSEE EASTERN DIVISION

NICHOLE TURNER, ) ) Plaintiff, ) ) VS. ) No. 1:18-cv-1163-JDT-cgc ) AMY FRANKS, ET AL., ) ) Defendants. )

ORDER DISMISSING COMPLAINT, DENYING MOTION FOR DISCOVERY (ECF No. 7), CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

On August 17, 2018, Plaintiff Nichole Turner, who is currently incarcerated at the Obion County Jail in Union City, Tennessee, filed a pro se complaint pursuant to

and a motion to proceed in forma pauperis. (ECF Nos. 1 & 2.) The complaint concerns his previous confinement at the Madison County Criminal Justice Complex (CJC) in Jackson, Tennessee. The Court issued an order on August 22, 2018, granting leave to proceed in forma pauperis and assessing the civil filing fee pursuant to the Prison Litigation Reform Act (PLRA),

(a)-(b). (ECF No. 4.) Turner sues Amy Franks, a Nurse Practitioner at the CJC, and Quality Health Care. Turner alleges that he has put in several sick-call requests with Nurse Franks about pain in his left hand and a bump on his neck. (ECF No. 1 at PageID 2.) Franks allegedly examined Turner only once and did not give him pain medication. (Id.) Turner alleges that Franks cancelled his request for a second opinion by a different nurse practitioner or doctor. (Id.) Turner lists twelve different dates on which he requested, but was denied, a

medical visit. (Id. at PageID 3.) Turner did, however, receive an x-ray in May 2018.1 (Id.) He also alleges that his requests to view his medical records were denied. (Id.) Turner seeks $20 million in compensatory damages. (Id. at PageID 4.) 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) seeks monetary relief from a defendant who is immune from such relief.

28 U.S.C. § 1915A(b); see also

(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,

(2009), and in Bell Atlantic Corp. v. Twombly,

(2007), are applied. Hill v. Lappin,

(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,

(6th Cir. 2011) (quoting Iqbal,

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

1 Though Turner does not specify, the Court presumes the x-ray was of his left hand. factual allegations.” Iqbal,

. 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,

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,

(quoting Martin v. Overton,

(6th Cir. 2004)). Pro se litigants, however, are not exempt from the requirements of the Federal Rules of Civil Procedure.

Wells v. Brown,

(6th Cir. 1989); see also Brown v. Matauszak,

(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.,

(6th Cir. 1975))).

Turner filed his complaint pursuant to

, 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.,

(1970). From Turner’s complaint, it appears that Quality Health Care is a private company providing medical services for prisoners at the CJC and Nurse Franks’s employer. “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,

(6th Cir. 2003) (citing Street v. Corr. Corp. of Am.,

(6th Cir. 1996)). The Sixth Circuit has applied the standards for assessing municipal liability to claims against private corporations that operate prisons or provide medical care or food services to prisoners. Id. at 748-49; Street,

; Johnson v. Corr. Corp. of Am.,

(6th Cir. 2001); see also Eads v. State of Tenn., No. 1:18-cv-00042,

, at *9 (M.D. Tenn. Sept. 7, 2018). To prevail on a § 1983 claim against Quality Health Care, therefore, Turner “must show that a policy or well-settled custom of the company was the ‘moving force’ behind the alleged deprivation” of his rights. Braswell v. Corr. Corp. of Am.,

(6th Cir. 2011).

Turner has not alleged that a policy or custom of Quality Health Care was the “moving force” behind the alleged violation of his constitutional rights. In fact, he states no allegations at all against Quality Health Care and directs his allegations only at Nurse Franks. He therefore fails to state a claim against Quality Health Care. The Court reviews Turner’s claims regarding the denial of medical care under the

Eighth Amendment, which prohibits cruel and unusual punishments. See generally Wilson v. Seiter,

(1991). Under Estelle v. Gamble,

(1976), “deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain,’. . . proscribed by the Eighth Amendment.” However, not “every claim by a prisoner that he has not received adequate medical treatment states a violation of the Eighth Amendment.” Estelle,

. “In order 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.”

. An Eighth Amendment claim consists of both objective and subjective components. Farmer v. Brennan,

(1994); Hudson v. McMillian,

(1992); Wilson,

. 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.,

(6th Cir. 2004); Brooks v. Celeste,

(6th Cir. 1994). “[A] medical need is objectively serious if it is ‘one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would readily recognize the necessity for a doctor’s attention.’” Blackmore,

; see also Johnson v. Karnes,

(6th Cir. 2005). To establish the subjective component of an Eighth Amendment violation, a prisoner must demonstrate that the official acted with the requisite intent, that is, that she had a “sufficiently culpable state of mind.” Farmer,

; see also Wilson,

. The plaintiff must show that the prison officials acted with “deliberate

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

; Wilson,

; Dominguez v. Corr. Med. Servs.,

(6th Cir. 2009); Woods v. Lecureux,

(6th Cir. 1997). “[D]eliberate indifference describes a state of mind more blameworthy than negligence.” Farmer,

. A prison official cannot be found liable under the Eighth Amendment unless she subjectively knows of an excessive risk of harm to an inmate’s health or safety and disregards that risk.

. “[A]n official’s failure to alleviate a significant risk

that he should have perceived but did not” does not amount to cruel and unusual punishment.

. Turner’s allegations fail to satisfy the objective component of an Eighth Amendment claim. He alleges that he has pain in his left hand and a bump on his neck. “Not ‘every ache and pain or medically recognized condition involving some discomfort

can support an Eighth Amendment claim.’” Sarah v. Thompson,

(6th Cir. 2004) (quoting Gutierrez v. Peters,

(7th Cir. 1997)). Turner does not describe the pain or allege that it has affected his life in any way by, for example, limiting his use of his hand or disrupting his sleep. Nor does he allege that his pain has worsened without treatment. See

(noting that whether an injury affects daily activities

or results in chronic and substantial pain are factors to consider when evaluating if a condition is “sufficiently serious” to satisfy objective component). Turner does not give any detail about the bump on his neck. He does not allege that it causes him pain, that it is swollen, or that there is any indication it is a serious medical issue. Even if Turner had satisfied the objective component, he also fails to satisfy the

subjective component. He alleges that he received treatment from Nurse Franks and, at some other unspecified time, an x-ray. Nurse Franks may have denied Turner’s request for her to examine him a second time, but Turner fails to allege that he required additional treatment or that Franks’s decision not to treat him further was in deliberate disregard of his serious medical condition. At most, Turner’s allegations amount to a disagreement about treatment.

Disagreement about the course of treatment does not present a proper claim under § 1983. Estelle,

; Westlake v. Lucas,

, 860 n.5 (6th Cir. 1976) (“Where a prisoner has received some medical attention and the dispute is over the adequacy of the treatment, federal courts are generally reluctant to second guess medical judgments and to constitutionalize claims which sound in state tort law.”). Even if Nurse Franks were

negligent in refusing further treatment, negligence or medical malpractice does not amount to a constitutional violation. See Farmer,

; Estelle,

(“Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.”). For the foregoing reasons, the complaint is subject to dismissal for failure to state a

claim on which relief may be granted. The Sixth Circuit has held that a district court may allow a prisoner to amend his complaint to avoid a sua sponte dismissal under the PLRA. LaFountain v. Harry,

(6th Cir. 2013); see also Brown v. R.I.,

(1st Cir. 2013) (per curiam) (“Ordinarily, before dismissal for failure to state a claim is ordered, some form

of notice and an opportunity to cure the deficiencies in the complaint must be afforded.”). Leave to amend is not required where a deficiency cannot be cured. Gonzalez-Gonzalez v. United States,

(1st Cir. 2001) (“This does not mean, of course, that every sua sponte dismissal entered without prior notice to the plaintiff automatically must be reversed. If it is crystal clear that . . . amending the complaint would be futile, then a sua sponte dismissal may stand.”); Curley v. Perry,

(10th Cir. 2001) (“We agree with the majority view that sua sponte dismissal of a meritless complaint that

cannot be salvaged by amendment comports with due process and does not infringe the right of access to the courts.”). In this case, the Court concludes that leave to further amend is not warranted. In conclusion, the Court DISMISSES Turner’s complaint for failure to state a claim on which relief can be granted, pursuant to

(e)(2)(B)(ii) and

1915A(b)(1). Leave to amend is DENIED. Turner also moved for discovery, including production of his medical records. (ECF No. 7.) Because the Court is dismissing his complaint, the motion is DENIED as moot. Pursuant to

(a)(3), the Court must also consider whether an appeal by Turner in this case would be taken in good faith. The good faith standard is an objective

one. Coppedge v. United States,

(1962). It would be inconsistent for a district court to determine that a complaint should be dismissed prior to service on the Defendants but has sufficient merit to support an appeal in forma pauperis. See Williams v. Kullman,

, 1050 n.1 (2d Cir. 1983). The same considerations that lead the Court to dismiss this case for failure to state a claim also compel the conclusion that an

appeal would not be taken in good faith. The Court must also address the assessment of the $505 appellate filing fee if Turner nevertheless appeals the dismissal of this case. A certification that an appeal is not taken in good faith does not affect an indigent prisoner plaintiff’s ability to take advantage of the installment procedures contained in § 1915(b). See McGore v. Wrigglesworth,

(6th Cir. 1997), partially overruled on other grounds by LaFountain,

. McGore sets out specific procedures for implementing the PLRA, §§ 1915(a)-(b).

Therefore, Turner is instructed that if he wishes to take advantage of the installment procedures for paying the appellate filing fee, he must comply with the procedures set out in the PLRA and McGore by filing an updated in forma pauperis affidavit and a current, certified copy of his inmate trust account for the six months immediately preceding the filing of the notice of appeal.

For analysis under

(g) of future filings, if any, by Turner, this is the first dismissal of one of his cases as frivolous or for failure to state a claim. This strike shall take effect when judgment is entered. See Coleman v. Tollefson,

(2015). IT IS SO ORDERED. s/ James D. Todd JAMES D. TODD UNITED STATES DISTRICT JUDGE