1

Since filing this action, Plaintiff has been released from

incarceration. (Docs. 18 & 19).

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

TRENNIS WADE CHAPMAN, SR., :

:

Plaintiff, :

:

vs. : CIVIL ACTION 07-00795-WS-B

:

LOUISIANA CORRECTIONAL SERVICES,:

et al., :

:

Defendants. :

REPORT AND RECOMMENDATION

Plaintiff Trennis Wade Chapman, Sr. filed the instant action

while incarcerated at the Perry County Correctional Center

(hereinafter “PCCC”) in Uniontown, Alabama. Plaintiff, who is

proceeding pro se, filed a Complaint alleging violations under 42

U.S.C. § 1983, together with a Motion to Proceed Without Prepayment

of Fees.1 (Docs. 1 & 10). Plaintiff’s requests to proceed in

forma pauperis have been granted. (Docs. 15 & 21). This action

has been referred to the undersigned for appropriate action

pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(4).

Upon careful review of Plaintiff’s Amended Complaint (Doc. 14), it

is recommended that this action be dismissed with prejudice, prior

to service of process, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)

for failure to state a claim upon which relief can be granted.

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The frivolity and the failure-to-state-a-claim analysis

contained in Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827

(1989), was unaltered when Congress enacted 28 U.S.C. §

1915(b)(2)(B) in 1996. Bilal v. Driver, 251 F.3d 1346, 1349

(11th Cir.), cert. denied, 534 U.S. 1044 (2001). However,

dismissal is now mandatory under § 1915(e)(2)(B). Id. at 1348-49.

2

I. Standards of Review Under 28 U.S.C. § 1915(e)(2)(B).

Because Plaintiff is proceeding in forma pauperis, the Court

is reviewing his Amended Complaint (Doc. 14) under 28 U.S.C. §

1915(e)(2)(B).2 Under § 1915(e)(2)(B)(i), a claim may be dismissed

as “frivolous where it lacks an arguable basis in law or fact.”

Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32,

104 L.Ed.2d 338 (1989). In addition, a complaint may be dismissed

under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim

upon which relief may be granted. Mitchell v. Farcass, 112 F.3d

1483, 1490 (11th Cir. 1997). 

In order to state a claim upon which relief can be granted,

there must be “sufficient factual matter, accepted as true, ‘to

state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal, ___ U.S. ___, ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868

(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570,

127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007)). “[W]hen the

plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the

misconduct alleged[,]” a claim is facially plausible. Id. at ___,

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129 S.Ct. at 1949. 

Plausibility requires more than the possibility that the

defendant engaged in unlawful conduct. Id. “Where the well-pleaded

facts do not permit the court to infer more than the mere

possibility of conduct, the complaint has alleged - but it has not

‘show[n]’ - ‘that the pleader is entitled to relief.’” Id. at ___,

129 S.Ct. at 1950 (quoting Fed.R.Civ.P. 8(a)(2)(requiring the

statement of the claim to show that the pleader is entitled to

relief)). Moreover, “[t]hreadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do not

suffice.” Id. at ___, 129 S.Ct. at 1949. 

A pro se litigant’s allegations must be construed liberally.

Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595-596, 30

L.Ed.2d 652 (1972) (holding that a pro se litigant’s allegations

are held to a more lenient standard than the those of an attorney).

However, the Court does not have “license . . . to rewrite an

otherwise deficient pleading [by a pro se litigant] in order to

sustain an action.” GJR Investments, Inc. v. County of Escambia,

Fla., 132 F.3d 1359, 1369 (11th Cir. 1998). Furthermore, a pro se

litigant “is subject to the relevant law and rules of court

including the Federal Rules of Civil Procedure.” Moon v. Newsome,

863 F.2d 835, 837 (11th Cir.), cert. denied, 493 U.S. 863 (1989).

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These are the Defendants listed in section III of the

complaint form. (Doc. 14 at 5). The complaint form provides

that the “defendants listed in section III of the complaint are

deemed by the Court to be the only defendants to this action.” 

(Id. at 1(D)).

4

II. Analysis.

A. Nature of Proceedings. 

Plaintiff initiated this action by filing a Complaint alleging

violations 42 U.S.C. § 1983. (Doc. 1). In an Order dated February

14, 2008 (Doc. 6), Plaintiff was directed to file a new Complaint

because his original Complaint was not on the form required for an

action alleging § 1983 violations. Plaintiff was advised that his

new complaint would supersede his original Complaint. (Doc. 6).

In response thereto, Plaintiff filed the instant Amended Complaint.

(Doc. 14). In his Amended Complaint, Plaintiff names as Defendants

David Strieff, warden at PCCC, and Tommy Buford, assistant warden

at PCCC. (Id. at 5-6).3

Plaintiff’s allegations are chiefly concerned with the

timeliness of the dispensing of his prescribed medication and the

adequacy of the medical treatment received for his back condition.

(Id.). To a great extent, the Amended Complaint contains numerous

nebulous allegations, and legal conclusions, which are used to

describe actions for which no facts have been provided.

Plaintiff’s Amended Complaint contains the following

allegation: “Plaintiff alleges an ongoing practice of ‘deliberate

indifference’, [i]nadequate [m]edical [t]reatment, [m]edical

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negligence-[s]ince” his incarceration on May 7, 2002. (Id. at 1).

In Plaintiff’s first ground, he alleges that there “is an ongoing

practice of ... erratic, haphazard dispensing of medication which

has cause[d] irr[e]parable harm . . . physical[ly] and

emotional[ly].” (Id.). For his second ground, Plaintiff alleges

that his complaints concerning the pill-call procedure and the

manner his medicine is dispensed have been unsuccessful, and his

“‘degenerative [b]ack’ [c]ondition has never and was never dealt

with from a medical perspective.” (Id.). In his third ground,

Plaintiff alleges that “he was denied medical treatment [and] the

medical treatment that he did receive was/is woefully substandard

[and] has irre[]parably harmed Plaintiff Chapman by continually

allowing Plaintiff Chapman to suffer dizziness, chronic back

[p]ain, emotion anxiety, stress, [and] duress[.]” (Id.).

With respect to Plaintiff’s claims against the named

Defendants, Plaintiff’s specific claim against Defendant Strieff

is based on the fact that he is in charge of the facility. (Id. at

5). The actions supporting this claim are described as occurring

from May 7, 2007 to December 18, 2007, when Plaintiff was regularly

denied his prescribed medication, “thereby allowing for

‘[d]elibertate [i]ndifference’ [i]nadequate [m]edical [t]reatment,

[and] medical neg[li]gence.” (Id.). Plaintiff’s specific claim

against Defendant Buford is that as the assistant warden, he “acted

in concert with the Warden to deny [Plaintiff] medical treatment

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and [he] allowed for the [m]edical staff at P.C.C.C. to be allowed

to foster an [e]nvironment where the medical staff could look the

other way when Plaintiff . . . grievanced the medical issues.”

(Id.).

Attached to Plaintiff’s Amended Complaint is a grievance that

Plaintiff alleges was submitted to the warden for the purpose of

exhausting his administrative remedies. (Id. at 8). In the

grievance, Plaintiff asserts that he has spoken with his unit

manager about finding a solution to the problem of his medication

being dispensed thirty minutes to several hours late because the

“the medication does not have the prescribed affect.” (Id. at 8-

9). According to Plaintiff, he takes medication for high blood

pressure and Seraquill for severe mood swings. (Id. at 9).

Plaintiff also alleges that he has “[d]egenerative [s]pinal

[d]isease and [he is] not being properly treated for it[.]” (Id.).

Plaintiff states that a federal facility would have a “medical

dep[artment that is] better suited to his needs . . . [and that]

unless this Administration changes the structure of their [p]ill

[c]all procedure and help[s] [him] get proper treatment for [his]

[b]ack[, he] will continue to suffer.” (Id. at 9-10). Plaintiff

requests to be transferred to a federal facility where his

treatment would be consistent with the Bureau of Prisons’

guidelines. (Id. at 10). To this end, Plaintiff filed a Motion

for Injunctive Relief with his Amended Complaint. (Id. at 11-13).

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In addition to this request for an injunction, Plaintiff requests

$700,000 in compensatory and punitive damages. (Id. at 7). 

B. Analysis.

1. Law Regarding Medical Claims.

“[I]n order to state a cognizable [§ 1983] claim [in a medical

context], a prisoner must allege acts or omissions sufficiently

harmful to evidence a deliberate indifference to serious medical

needs.” Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50

L.Ed.2d 251 (1976). Negligence in treating and in diagnosing does

not rise to level of deliberate indifference, and “an inadvertent

failure to provide adequate medical care cannot be said to

constitute” a violation of the Eighth Amendment. Id. at 105-06, 97

S.Ct. at 292. “Medical malpractice does not become a constitutional

violation merely because the victim is a prisoner.” Id. at 106, 97

S.Ct. at 292. Moreover, it is only those needs that are serious that

can be addressed “[b]ecause society does not expect that prisoners

will have unqualified access to health care[.]” Hudson v.

McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 1000, 117 L.Ed.2d 156

(1992). Furthermore, a defendant must be causally connected to a

claim by showing a defendant’s actions, orders, customs, or policies

caused a deprivation of a plaintiff’s constitutional rights in order

to state a claim upon which relief may be granted against a

defendant in a § 1983 action. Zatler v. Wainwright, 802 F.2d 397,

401 (11th Cir. 1986); Williams v. Bennett, 689 F.2d 1370, 1380 (11th

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Cir.) (same), cert. denied, 464 U.S. 932 (1983). 

2. Plaintiff’s General Description of Claims.

An examination of the general description of claims contained

on page 4 of Plaintiff’s Amended Complaint reflects that Plaintiff

did not refer to either Defendant. (Doc. 14 at 4). In this

description, Plaintiff merely alleges “an ongoing practice of

‘[d]eliberate [i]ndifference’, [i]nadequate [m]edical [t]reatment,

[m]edical negligence”; “erratic, haphazard dispensing of medication

which has cause[d] irr[e]parable harm to Plaintiff[’s] physical

[and] emotional [h]ealth”; “Plaintiff [has a] ‘degenerative [b]ack’

condition [that] . . . was never dealt with from a medical

perspective”; and “he was denied medical treatment [and] the medical

treatment that he did receive was/is woefully substandard.” (Id.).

These statements are nebulous at best. They contain absolutely no

facts that would permit the Court to draw the conclusion that

specific actions of a named defendant amounted to a deliberate

indifference to a medical need that was serious. Therefore, these

claims are not plausible. Iqbal, ___U.S. at ___, 129 S.Ct. at 1949.

The Court acknowledges that Plaintiff mentions dizziness,

chronic back pain, emotional anxiety, stress and duress. (Id.).

However, the lack of factual allegations or his limited allegations

regarding his back condition preclude the Court from reaching a

conclusion that a serious medical need is involved. Accordingly,

Plaintiff has failed to state a claim upon which relief can be

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granted on the foregoing allegations. 

3. Plaintiff’s Claim Against Each Defendant.

Turning to section III of Plaintiff’s Amended Complaint, at

page 5, Plaintiff allegations fail to state a claim upon which

relief can be granted. According to Plaintiff, Defendant Strieff

denied him prescribed medications regularly “thereby allowing for

‘[d]eliberate indifference,’ [i]nadequate [m]edical [t]reatment,

[and] [m]edical neg[li]gence.” (Id. at 5). Plaintiff also allges

that Defendant Buford “acted in concert with the Warden to deny

[Plaintiff] medical treatment” and “allowed an [e]nvironment [to be

fostered] where the medical staff could look the other way when

Plaintiff” complained of medical problems to them. (Id.). These

allegations lack specific facts that would allow the Court to draw

the conclusion that Plaintiff’s constitutional rights were violated.

Id. 

At best, these allegations of “allowing” sound in negligence.

However, negligence is not actionable in a § 1983 action. Estelle,

429 U.S. at 105-06, 97 S.Ct. at 292 (negligence in treating and in

diagnosing does not rise to the level of deliberate indifference

which is required for stating a violation of the Eighth Amendment);

see Daniels v. Williams, 474 U.S. 327, 328, 106 S.Ct. 662, 663, 88

L.Ed.2d 662 (1986) (“a negligent act of an official causing

unintended loss of or injury to life, liberty, or property” does not

violate the Constitution); Davidson v. Cannon, 474 U.S. 344, 348,

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106 S.Ct. 668, 671, 88 L.Ed.2d 677 (1986)(“As we held in Daniels,

the protections of the Due Process Clause, whether procedural or

substantive, are just not triggered by lack of due care by prison

officials.”).

Furthermore, Plaintiff’s allegation that Defendant Buford acted

in “concert” is conclusory as no other facts are provided to support

this assertion. Given that Plaintiff has provided no indication of

the intended meaning of the word “concert,” the Court analogizes it

to a conspiracy. A conclusory allegation of conspiracy, however,

fails to state a claim upon which relief can be granted. Fullman

v. Graddick, 730 F.2d 553, 556-57 (11th Cir. 1984). 

In addition, Plaintiff complains that the medical staff “looked

the other way” when he submitted a grievance to them. The law is

well settled that there is no constitutional right to receive a

response to a grievance. Brown v. Dodson, 863 F.Supp. 284, 285

(W.D. Va. 1994); Greer v. DeRobertis, 568 F.Supp. 1370, 1375 (N.D.

Ill. 1983); see Kilgo v. Ricks, 983 F.2d 189, 194 (11th Cir. 1993)

(dismissing as frivolous the claim against prison commissioner for

failure to respond to an inmate’s complaints about the denial of

medical care because there were no allegations of personal

involvement or of a policy by commissioner in the underlying claim);

Mann v. Adams, 855 F.2d 639, 640 (9th Cir.) (holding there is no

entitlement to a grievance procedure), cert. denied, 488 U.S. 898

(1988). 

Case 2:07-cv-00795-WS-B Document 22 Filed 04/06/10 Page 10 of 17
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It is also noteworthy that Defendants Strieff and Buford are

correctional officials, not medical personnel. Plaintiff has not

offered any explanation as to just how these supervisory,

correctional Defendants are involved in his medical issues. 

4. Application of Respondeat Superior.

According to Plaintiff, he lodged his claim against Defendant

Strieff because he is in charge of PCCC. (Doc. 14 at 5). Thus,

Plaintiff seeks to impose liability against Defendant Strieff for

the actions of a subordinate or an employee. However, in a § 1983

action, liability cannot be imposed against a supervisor solely on

the basis of the actions of an employee or a subordinate. 

Fundiller v. City of Cooper City, 777 F.2d 1436, 1443 (11th Cir.

1985) (holding a supervisor cannot be held liable in a § 1983

action under the theory of respondeat superior solely for the acts

of a subordinate). Section 1983 imposes liability only when one

person causes injury to another. Monell v. Department of Social

Services, 436 U.S. 658, 692, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611

(1978). That is, a defendant cannot be held liable on the basis of

respondeat superior or vicarious liability for the constitutional

violation that is caused by another when there is no showing of a

causal connection between the actions of the defendant and the

constitutional violation. Id. at 691, 98 S.Ct. at 2036. In other

words, “[s]upervisory liability . . . occurs either when the

supervisor personally participates in the alleged constitutional

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violation or when there is a causal connection between actions of

the supervising official and the alleged constitutional violation.”

Gonzalez v. Reno, 325 F.3d 1228, 1234 (11th Cir. 2003). “The

standard by which a supervisor is held liable in [his] individual

capacity for actions of a subordinate is extremely rigorous.” Id.

In the instant action, Plaintiff’s allegations do not suggest

that Defendant Strieff directed the medical care for inmates or for

Plaintiff, or that he had the medical credentials to do so.

Plaintiff’s allegations also fail to reflect that Defendant Strieff

had any personal involvement with Plaintiff’s medical treatment,

that he had a policy or custom that resulted in Plaintiff’s

complained of treatment, or that he directed a subordinate to act

unlawfully or knew that a subordinate would do so and failed to

stop the subordinate. See Id. at 1234-35. 

In regards to Defendant Buford, Plaintiff alleges that he

acted in concert with Defendant Strieff to deny Plaintiff medical

treatment. Without additional facts to support this allegation, no

claim has been stated. As noted supra, Plaintiff has failed to

proffer facts that suggest a conspiracy, and has further failed to

show that Defendant Buford had any personal involvement in

Plaintiff’s medical treatment, or that he had a policy or custom

that resulted in Plaintiff’s complained of treatment. 

Furthermore, Plaintiff’s allegations that Defendant Buford

allowed an environment to exist where the medical staff could

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13

ignore Plaintiff’s medical grievances, are conclusory and vague.

In order to state a claim, Plaintiff is required to allege facts

that would lead the Court to the conclusion that a claim is

plausible. Iqbal, ___U.S. at ___, 129 S.Ct. at 1949. Plaintiff

has simply failed to offer any facts that would lead this Court to

conclude that this Defendant was deliberately indifferent to a

serious medial need. See Estelle, 429 U.S. at 106, 97 S.Ct. at 292

(in the medical context, “in order to state a cognizable claim

[under the Eighth Amendment], a prisoner must allege acts or

omissions sufficiently harmful to evidence a deliberate

indifference to serious medical needs”). For the above reasons,

Plaintiff has failed to state a claim against Defendants Strieff

and Buford on the individual claims that are directed to them.

(Doc. 14 at 5).

5. Inconsistent Allegations.

Finally, the Court observes that many of Plaintiff’s

allegations appear to contradict each other. For example,

Plaintiff states that he was denied his medications (Doc. 14 at 5),

but then he alleges that his medications were not given to him in

a timely manner. (Id. at 4 & 8). Plaintiff also alleges at one

point in his Complaint, that he is not being properly treated for

his spinal disease, and that he needs “proper” treatment for it,

yet at another point in the Complaint, he alleges that “he was

denied medical treatment [and] the medical treatment that he did

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14

receive was/is woefully substandard . . . causing him to suffer

dizziness, chronic back pain, emotional anxiety, stress [and]

duress.” (Id. at 4, 9-10). Besides being nebulous, Plaintiff’s

allegations do not appear to be consistent with each other. One

allegation indicates that there is a total denial of medication or

medical care, while in another allegation, Plaintiff indicates that

the medication or medical care being received is not in the manner

that Plaintiff would like. Contradictory allegations are

considered baseless and serve as grounds for a frivolous dismissal.

Battle v. Central State Hosp., 898 F.2d 126, 130 n.3 (11th Cir.

1990); see Bilal, 251 F.3d at 1350 (discounting allegations because

each amended complaint presented a different story); Nails v.

Franklin, 279 Fed. Appx. 899 (11th Cir. May 30, 2008) (considerable

doubt was cast on the reliability of factual assertions because

each filing presented different allegations). Further, where the

dispute is over the adequacy of the medical care, as opposed to the

denial of medical care, a constitutional claim is generally not

stated. Hamm v. DeKalb County, 774 F.2d 1567, 1575 (11th Cir.)

(“Where a prisoner has received . . . 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 that sound in tort law.”) (quotation

omitted), cert. denied, 475 U.S. 1096 (1986).

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IV. Conclusion.

Based upon the foregoing reasons, it is recommended that this

action be dismissed with prejudice, prior to service of process,

pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a

claim upon which relief may be granted. 

The attached sheet contains information regarding objections

to the Report and Recommendation.

DONE this 6th day of April, 2010.

 /s/ Sonja F. Bivins 

UNITED STATES MAGISTRATE JUDGE

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Effective December 1, 2009, the time for filing written

objections was extended to “14 days after being served with a

copy of the recommended disposition[.]” Fed.R.Civ.P. 72(b)(2).

16

MAGISTRATE JUDGE’S EXPLANATION OF PROCEDURAL RIGHTS

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation or

anything in it must, within fourteen days of the date of service of

this document, file specific written objections with the clerk of

court. Failure to do so will bar a de novo determination by the

district judge of anything in the recommendation and will bar an

attack, on appeal, of the factual findings of the magistrate judge.

See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738

(11th Cir. 1988). The procedure for challenging the findings and

recommendations of the magistrate judge is set out in more detail

in SD ALA LR 72.4 (June 1, 1997), which provides, in part, that:

A party may object to a recommendation entered by a

magistrate judge in a dispositive matter, that is, a

matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing a

“Statement of Objection to Magistrate Judge’s

Recommendation” within ten days4 after being served with

a copy of the recommendation, unless a different time is

established by order. The statement of objection shall

specify those portions of the recommendation to which

objection is made and the basis for the objection. The

objecting party shall submit to the district judge, at

the time of filing the objection, a brief setting forth

the party’s arguments that the magistrate judge’s

recommendation should be reviewed de novo and a different

disposition made. It is insufficient to submit only a

copy of the original brief submitted to the magistrate

judge, although a copy of the original brief may be

submitted or referred to and incorporated into the brief

in support of the objection. Failure to submit a brief

in support of the objection may be deemed an abandonment

of the objection.

A magistrate judge’s recommendation cannot be appealed to a

Court of Appeals; only the district judge’s order or judgment can

be appealed.

2. Opposing party’s response to the objection. Any opposing

party may submit a brief opposing the objection within ten (10)

days of being served with a copy of the statement of objection.

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Fed. R. Civ. P. 72; SD ALA LR 72.4(b). 

3. Transcript (applicable where proceedings tape recorded).

Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the magistrate

judge finds that the tapes and original records in this action are

adequate for purposes of review. Any party planning to object to

this recommendation, but unable to pay the fee for a transcript, is

advised that a judicial determination that transcription is

necessary is required before the United States will pay the cost of

the transcript.

DONE this the 6th day of April, 2010.

 /s/ Sonja F. Bivins 

UNITED STATES MAGISTRATE JUDGE

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