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Lee v. Tanner

United States District Court, E.D. Louisiana

September 6, 2019

KENNETH LEE
v.
ROBERT TANNER, ET AL.

         SECTION: “S” (3)

          PARTIAL REPORT AND RECOMMENDATION

          DANA M. DOUGLAS UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, Kenneth Lee, a state prisoner incarcerated at the Rayburn Correctional Center (“RCC”), filed this pro se and in forma pauperis civil action pursuant to 42 U.S.C. § 1983. He sued Warden Robert Tanner, Deputy Wardens Keith Bickham and Beverly Kelly, Dr. Robert Cleveland, Emergency Medical Technician Laura Buckley, and other unidentified “Medical Nursing Officials.” In this lawsuit, plaintiff claims that the defendants have been deliberately indifferent to his serious medical needs.

         In order to conduct the screening mandated by federal law, the Court ordered production of plaintiff's medical records and administrative grievance records from RCC.[1] In addition, the Court held a Spears hearing on July 9, 2019. See Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). “[T]he Spears procedure affords the plaintiff an opportunity to verbalize his complaints, in a manner of communication more comfortable to many prisoners.” Davis v. Scott, 157 F.3d 1003, 1005-06 (5th Cir. 1998). The United States Fifth Circuit Court of Appeals has observed that a Spears hearing is in the nature of a Fed.R.Civ.P. 12(e) motion for more definite statement. Eason v. Holt, 73 F.3d 600, 602 (5th Cir. 1996). Spears hearing testimony becomes a part of the total filing by the pro se applicant. Id.

         At the Spears hearing, plaintiff testified that he is required to use a catheter.[2] Although he was originally inserting the catheter himself, the doctor ordered that medical personnel begin performing that task. However, plaintiff complains that the medical personnel refuse to follow that order. In addition, they change the catheter only when then want, rather than every thirty days as the doctor ordered. As a result, plaintiff has had to use the same catheter for up to two months. Medical personnel also refuse to change his bandages as needed or supply him with a razor to shave the necessary area.[3]

         Plaintiff also testified was “born crippled, ” and, as a result, he is required to use knee braces. When he reported that his knee braces were “ripping apart, ” Dr. Robert Cleveland and Emergency Medical Technician Laura Buckley told plaintiff simply to have someone stitch them back together. Although plaintiff did as instructed, the braces are unusable because the thread cuts into his knees. He contends that he should be provided with new braces. He further complains that he has been denied ankle braces.

         Plaintiff explained that Warden Robert Tanner and Deputy Warden Keith Bickham were not personally involved in these incidents, but they have been named as defendants because they hold supervisory positions at RCC.

         I. Screening Standards

         Federal law mandates that federal courts “review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). Regarding such lawsuits, federal law further requires:

On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint -
(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).

         Additionally, with respect to actions filed in forma pauperis, such as the instant lawsuit, federal law similarly provides:

Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court ...

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