# FILED
April 28, 1999 Cecil Crowson, Jr. Appellate Court Cle rk IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

______________________________________________ DARRELL PHILLIPS, Plaintiff-Appella

nt, Lauderdale Circuit No. 5096 Vs. C.A. No. 02A01-9811-CV-00318 DR. FAISAL SHAMSHAD, ET AL, Defendants-Ap

pellees.

__________________

_________________________________________________________ _ FROM THE LAUDERDAL E COUNTY CIRCUIT CO URT THE HONORABLE JOSEPH H. WALKER, JUDGE

Darrell Phillips, Pr

o Se Paul G. Summers, Attorney General and Reporter Michael E. Moore, Solicitor General Elena J. Xoinis, Assistant Attorney General

For Appellees

REVERSED AND REMANDED

Opinion filed:

W. FRANK CRAWFORD,

PRESIDING JUDGE, W.S.

CONCUR: ALAN E. HIGHERS, JUDGE DAVID R. FARMER,

JUDGE Plaintiff/Appella

nt, Darrell Phillips, a

ppeals the order

of the trial court

d ismis sing his complaint for failureto state

a claim against De

fendants/Appelle

es, Dr. Faisal Sham

shad, et al. In reviewing an appeal from an order dismissing a suit for failure to state a claim upon which relief can be gr

anted, we obvious

ly are limited to

the allegations in the complaint, and we1 The correct name of this defendant is Ralph Gromley, and we will use that name in the Opinion. 2 must construe the comp

laint liberally in

favor of the plaintiff, taking all of the allegations of fact therein as true. Randolph v. Dominion Bank of Middle Tennessee , 826 S.W.2d 477, 478 (Tenn. App. 1991) (citing Huckeby v. Spangler , 521 S.W.2d 568, 571 (Tenn. 1974)). Dismissal under Tenn. R. Civ. P. 12.02(6) is warranted only when no set of facts will entitle the plaintiff to relief. Pemberton v. American Distilled Spirits Co. , 664 S.W.2d 690, 691 (Tenn. 1984). Moreover,

a complaint should not

be dismissed no matte

r how poorly

drafted if it state

s a cause of action. Dobbs v. Guenther , 846 S.W.2d 270, 273 (Tenn. App. 1992). In Humphries v. W es t End Terrace, Inc. , 795 S.W.2d 128 (Tenn. App. 1990), this Court said:

A motion to dismiss pursuant to Rule 12.02(6), Tenn. R. Civ. P., for failure to state a claim upon which relief can be grantedis the equivalent of a demurrer under our former common law procedure and, thus, is a test of the sufficiency of

the leading pleading. Cornpropst v. Sloan , 528 S.W. 2d 188, 190, 93 A.L.R.3d 979 (Tenn. 1975). Such a motion admits th e truth of all relevant and material averments contained in the complaint but assert s that such facts do not constitute a cause of act ion

. Cornpropst , 528 S.W.2d at 190. A comp lai nt should not be dismissed upon such motion “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him

to relief.” Fuerst v. Methodist Hos pital South , 566 S.W.2d 847, 848 (Tenn. 1978). In con sideri ng whether to dismiss a complaint for failureto state a claim upon which relief can be granted, the c

ourt should constru

e the complaint libe

rally in favor of the plaintiff taking all of the allegations of

fact therein as true. Huckeby v. Spangler , 5 21 S.W .2d 568, 571 (Tenn. 1975). Humphries , 795 S.W.2d at 130. On appeal, issues raised by a Rule 12 .02(6) motion to dismi ss

are questions of law that are reviewed de novo with no presumption of correctness. Owens v. Truckstops of Am. , 915 S.W.2d 420, 424 (Tenn. 1996). With the above rules in

mi nd, we exami

ne Plaintiff’s complaint filed April 20, 1998, against Dr. Faisal Shamshad, Ralph Grangler 1 , Mari Richards, Bill Harber, Jim Blankens hip , Jeffrey Johnson, John Kelley, Vicky Kirby, Steve Vaughn, Anthony Freeman, Ty Leffner, Robert Conley, and Jim Rose.

The pertinent all

egations of the co

mplaint are as fol

lows: Phillips is incarcerate

d at the West Tenn

essee High Secur

ity Facility (Corre

ctional Facility) i

n Henning, Tennesse

e . On February 6, 1998, Phillips fell and injured his knee. He was subsequently

escorted to the prison clinic and treated by Ralph Gromley, a nurse employed by the Corr ectional Facility, who issued a pair of crutches and ace bandages to Phillips. Phillips

avers that Gromley, without performing a physical examination, stated that he had a knee strain.3

On February 9, 1998, Phillips awoke that morning having pain in his knee and requested medical attention which was denied since he failed to sign the sick call roster the night before. Four days la ter, Phill ips filed a grievance which he avers was subjectively and selectively denied by Anthony Freeman, chairman of the grievance board and a corr ections o fficer, without any opportunity

to rebutor correct a mistake in complying with prison policy. On February 18, 1998, Phillips was again treated by Gromley who issued a work waiver and an extra pillow to Phillips. A couple of days later, on February 20, 1998, Phillips filed a grievanc e in regard to his medical care which was rejected by prison officials. A few days later, a shakedown of the prison cells was performed in which correctional offic ers confiscated a cane and extra pillow from Phillips’ cell since there was no documentation approving his possession of such items. Phillips avers that he fell again later that day due to his knee collapsing. On March 2, 1998, Phill

ips filed another

grievance reg

ardin g his medical treatment whic h

was once again denied. On the same day, Phillips avers that he attempted to file an emergency grievance, but the proper policy regarding the filing of such grievance s was n ot followed by prison personnel even after he brought the policy to their attention. He avers that after protesting the mishandling of his grievance, he was verbally abused by prison personnel. Philli ps then attempted to file another e mergency grieva

nce which was sum

marily r ejected by prison personnel. On March 5, 1998, Phillips filed another grievance because of the foregoing actions by prison officials. This grievance was denied once again. On March 10, 1998, Phillips signed up for sick call and was seen by Gromley and Mari Richards, a nurse employed a t the Correctional Fac

ility. On March 11,

1998, Phillips wrote Robert Conley, the ward en atthe Correctional Facility, and Jim Blankenship, the medical administrator

at the Correctional Fac

ility, regarding h

is medical care a

nd the handling of h

is grievances.Six days later, Phillips was again seen by Richards who issued him a work waiver. On March 18, 1998, Phillips wa s seen once aga in by Gromley who referred him to Dr. Faisal Shamshad, a physician at th e Correcti onal Facility, who prescribed Feldine, a pain reliever. Phillips avers that Dr. Shamshad was to inquire as to when he would be transferred to a facility for surgery on his knee

. The following day, Phillips requested a “job drop” which was subsequently denied because Dr. Shamshad stated that he had the same problem with his knee and that Phillips can work like he does. O n Mar ch 20, 1998, Phillips attempted to pick up a prescription of Feldine but was u nable to obtain such because Dr. Shamshad had failed to sign4

off on the prescription and was unavailable at the time. Upon returning to work that day, Phillips

was rep rim anded and verbally abused by Ty Leffner, a job coordinator at the Correctional Facility, for not being at wo rk and complaining

about his knee. On March 31, 1998, Phillips was issued another work waiver by the medical clinic. Phillips avers that upon presenting the work waiver to Leffner, he responded that he would talk with th

e clinic to make su

re that was the la

st waiver Phillips received. On April 2, 1998, Phillips returned t o the medical clinic and spoke to Richards who requested that he ret urn the next day since she could not examine him at that time. Phillips returned to the clinic the next

day where he was seen by Bill Harber, a physician assistant at the Correctional Faci lity. Ha rber prescribed Tylenol to Phillips but refused to issue him a work waiver. On April 8, 1998, Phillips returned to the clinic to req uest anoth er prescription of Feldine but was told by Gromley that he was not goin g to be able

to receive any more Feldine. Rather, Gromley prescribed Tylenol to Phillips. The following day during sick call, Gromley offered to place Phillips in the infirmary. Phillips refused this offer because the infirmary does nothave cable tele

vision as he has in hi

s cell. On April 10,

1998, Philli ps fell once agai n injuring his left elbow. Richards saw Phillips for the injury and prescribeda sling and pain medication. Phillips’s complaint alleges a 42 U.S.C. § 1983 suit fo

r violation of the Fir

st, Fifth, Eighth, Thirteenth and Fou rteenth Amendmen

ts of the United Stat

es Constitut ion, and violations under the Tenness ee Constit

ution. Phillips allege

s that the Defend

ants exhibited a de

liberate indifference

to his serious medic

al condition and ne

eds, and th at the De fendants’ intent ional, malicious acts andpractices caused him to suffer pain, emotional distress, and mental anguish. On August 21, 1998, the Defendants filed a motion pursuant to Tenn.R.Civ.P. 12.02(6) to dismiss the complaint for failure to s ta te a claim upon which relief can be granted. On Se ptembe r

25, 1998, Phillips file

d a motion for exte

nsion of time to repl

y to the motion to dismiss. On October 9, 1998, the trial court gr anted the Defen

dants’ motion to dismi

ss. Adopt ing the Def

endants’ memorandum in support of their motion to dismiss, the trial court found that Phillips failed to establish t hat the D efendants were deliberately ind

ifferent to his medical needs by failin

g to allege acts or omissions sufficiently harmful to evidence such deliberate indifference to serious needs as required for a cause of action under th e Eighth Amendment. Furthermore, the trial court found

that the Defenda

nts were sued in th

eir official capacity, and that under 42 U.S.C. § 1983, neither a state nor its officials s

ued in their

official5

capacity are “persons.” Also, the trial court stated that state officers and employees are immune from liability for certain acts or omissions under T.C.A. § 9-8-307(h). Phillips appeals an

d sets forth in his br

ief two issues for

review as follow

s: 1. Whether the trial court erred i n dismiss ing plaintiff’s pro se complaint for failure to state a claim under the st andard of the rule of liberal reading required for pro se litigants. 2. Whether the tria

l court erred in

holding that the appellees were entitled to immunity as a result of being sued in their official capacity. Phillips contends that the trial cour t erroneously dism

issed his complaint p

ursu ant to Rul e 12.02(6) in that his complaint properly alleged acts and omissions sufficiently harmfu l to evidence deliberate

indifference o

n the part of the D

efendants with

regard to his serious medical needs. He states that the

allegations in

his complaintwere sufficient to meet the objective and subjective components of a claim under the Eighth Amendment

. Furthermore, Phillips states that if he had been allowed an extension of tim

e inwhich to respond to

the motion to dismiss, he would have had the opportunity to provide further

supporting eviden

ce in regard to hi

s claims. On the other hand, th

e Defendants av

er that th e trial court correctly determined that Phillips failed to establis

h that they were d

eliberately in

d ifferent to his medical needs in violation of the Eighth Amendment. They state that Phillips’ allegations do not support his conclusions that he was denied ad

equate medical care. Phillips’ difference of opinion with medical personnel regarding the typeof treatment received is not sufficient to constitute a violation of the Eig

hth Amendment. They further submit tha t Phillips failed to e

stablish any delibe

rate indiffere

nce to his medical needs sufficient to meet the objective component requirement especially in light of the fact that he was prescribed pain medication, crutches, extra pi llows and work wai vers. Moreover, the Defendants assert that Phillips failed to establish that they acted with a culpable state of mind. They submit that Phillips failed to allege that the Defendants were motivated by

an intent to harm or punish him, thus, his claims fal l short of t he conduct necessary to state a claim under

the Eighth Amendment. They conclude by asserting that Phillips simply failed to establish that the alleged deprivations were sufficiently serious or that they acte d with deliberate indifference. In Este lle v. Gamble , 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976), the United States Supreme

Court articulate

d the standard for

determining wheth

er a prisoner’s constitutiona l rightunder the Eighth Amendment to m edical car e has been violated. The Supreme Court6

stated: We therefore conclude that deliberat e i ndifference to se rious medical needs of prisoners constitutes the “unnecessary a nd wanton infliction of pain,” proscribed by the Eight h Amendment. This is true whether the indifference is manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or de l aying access to medical care or intentio

nally interfering with

the treatment once prescribed. Regardless

of how evidenced, deliberate indifference to a prisoner’s ser

ious illness or injur

y state s a cause of action under § 1983. Estelle , 429 U.S. at 1 04-05, 97 S. Ct. at 291 (cita tion omitted); see also Molton v. City of Cleveland

, 839 F.2d 240, 243 (6th Cir. 1988) (de liberate indifference to a prisoner’s serious medical needs amounts

to cruel and

unusual punishment and violates the Eighth Amendment). As noted by the Sixth

Circuit in Hunt v. Reynolds , 974 F.2d 734, 735 (6th Cir. 1992), the Estelle standard consists of both an objectiv

e component - the p

risoner’s medica

l needs must be sufficiently ser

ious - and a subjec

tive component - th

e defendants must

act in a deliberately indiffere nt manne r to the prisoner’ s serious medical n eeds. When a pri

soner suffers pa

in needlessly

and relief is readily available, they have a ca use of action aga inst those whose deliberate indifference i

s the cause of the suffering. Boretti v. Wiscomb , 930 F.2d 1150, 1154-55 (6th Cir. 1991). In Farmer v. Brennan , 511 U.S. 825, 114 S. Ct. 1970, 128 L . Ed. 2d 811 (1 994), the Supreme Court stated: It

is not, howeve r , every injury suffered by one prisoner at the hands of another that translates into constitutional liability for prison officials responsible for the victim’s safety. Our cases have held that a prison o ffic ial violates the Eighth Amendment only w hen two requirem ents are met. First

, the deprivati

o n allegedmust be , obj ectively, “sufficiently serious,” a prison official’s act or omission must r esu l t in the denial of the “the minimal civilized measure of life’s necessities. . . .” The second req uirem ent follows from the principle that “onlythe unnecessar

y and wanton in

fliction o f pain implicates the Eigh th A mendment.” To violate the Cruel and Unusual Punishment Clause, a prison of ficial must have a

“sufficiently culpable state of mind.” Farmer , 511 U.S. at 834, 114 S. Ct. at 1977 (citations omitted). From our examination of the complaint, we find that the allega tions of p ain and discomfort

are sufficient t

o set out a serious c

onditi on warrantin

g medical attention. The complaint also alleges facts demonstra ting an indiffere

nce to Plaintiff’s

needs and in some instances facts that indicate an actual thwarting of Plaintiff’s efforts to obtain medical help. In light of the stringent sta

ndar d for reviewing motions to dismiss and construing the complaint7

most liberally in Phillips’ favor, we hold thatthe complaint states a cause of action of violation of Phillips’ Eighth

Amendment rights.

Defendants failed to respond to Plaintiff’s second issue, and although we note that the trial court did not err in its finding, this is not a determinative issue. Plaintiff’s complaint sues the Defendants in the

ir personal and indiv

idual capacitie

s; thus, they are not entitled to immunity from suit for violation of Plaintiff’s constitutional rights under the Eighth Amendment. Accordingly, the order of the trial court is reversed, and the case is remanded to the trial court for such further proceedings as necessary. Costs of the appeal are a ssessed aga inst the appellees.

_________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W.S. CONCUR:

____________________________________ ALAN E. HIGHERS, JUDGE

____________________________________ DAVID R. FARMER,

JUDGE