Opinion
No. 1:07-cv-0013
03-26-2012
DANNY RAY MEEKS, et al., Plaintiff, v. TENNESSEE DEPARTMENT OF CORRECTION, et al., Defendants.
JUDGE HAYNES
JURY DEMAND
MOTION FOR A NEW TRIAL
PURSUANT TO FED.R.CIV.P., 59(a)(2)
COMES NOW THE PLAINTIFF, Danny Ray Meeks, pro se, as an indigent, incarcerated litigant and pursuant to Fed. Rules of Civil Proc., 59(a)(2), moves this District Court for a new trial or for an Amendment to the Judgment by the taking of additional testimony, amend the findings of fact and conclusions of law or make new ones, and direct the entry of a new judgment.
In support of this Motion the Plaintiff relies upon the following facts contained in the Court records:
Plaintiff contends that the Court has, without notice to the Plaintiff, abandoned the previous acceptance of the Report and Recommendation of Magistrate Judge, John S. Bryant. D.E.#220. It is obvious, per the ORDER D.E.# 386 and Memorandum, D.E.# 385, that Plaintiff has not received, "the factual contentions viewed in the light most favorable to the party opposing the motion for summary judgment. Duchon v. Cajon Co., 791 F.2d 43, 46 (6th Cir. 1986). Here the Plaintiff has presented the Court with the Affidavit of Tenn. Prison Inmate, Michael A. Kelley, #465781, dated December. 30, 2011. This affidavit is presented to demonstrate that the Defendant (TDOC) has in full force and effect a "secret" DIRECTIVE that VOIDS the "public" policy 506.21, addressing inmate drug testing.
D.E.f's 385 & 386, make no reference to the four Affidavits presented by the Plaintiff. Following the Second Motion for Summary Judgment Plaintiff presented the affidavit of Inmate Michael Kelley. However, there is no mention of the evidence stated therein. The Court places great weight upon the affidavits of Mr. Frank Gupton and Ms. Donna White while giving the afidavits of the many inmates absolutely no credence.
GENUINE ISSUES OF MATERIAL FACT
A fact is ^material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim". Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way". Id. citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505).
Plaintiff submits that the existence of the DIRECTIVE issued by the Director of Substance Programs prior to August 1, 2002, is essential to the disposition of the claim and that sufficient evidence has been presented so that a rational trier of fact could resolve the issue either way. There is proof of the existence of a genuine issue of material fact. In the Report and Recommendation, D.E. #220, as set forth herein.
II. STATEMENT OF THE CASE
Page 3, Defendant's have not addressed the Plaintiff's claim that TDOC's policy prohibiting prison medical staff from diagnosing medical conditions related to inmate drug testing violates the ADA. (D.E. #130 at 9).
III. UNDISPUTED FACTS
a. ) ... in accordance with an internal prison medical memorandum dated August 1, 2002 implementing the instructions of TDOC's Director of Substance Abuse Programs, medical staff are forbiden from "get[ting! involved in any manner with the collection of specimen's (sic) (urine) or the testing of specimen's (sic) for the purposes of security drug testing". (D,E, #1-1 at 18). b. ) Plaintiff was thus unable to procure an AVO and was convicted of a disciplinary charge for refusing drug screening on September 17, 2005 and August 21, 2006.
IV. CONCLUSIONS OF LAW
B. Analysis
At page 7, Magistrate Judge John Bryant stated, "However, Plaintiff continues to face the root cause of the particular harms he suffered in the past: he reasonably expects that because his medical condition inhibits his ability to take a drug test under normal conditions, he will likely be subjected to future sanctions stemming from a disciplinary conviction for refusing a drug screening. (Docket Entry No. 144 at 4) Plaintiff does not have to wait until he is punished again for failing to take a drug test before making a claim of discrimination under the ADA; a significant possibility of future harm is sufficient to justify an injunction to prevent the possibility of prospective harm. Peoples Rights Org., Inc. v. City of Columbus, 152 F.3d 522, 527 (6th Cir. 1998). Accordingly, Plaintiff can seek an order enjoining the TDOC medical staff from refusing Plaintiff psychological medical care as directed in the memorandum from Kevin Rea ("Rea") on the grounds that it is related to inmate drug testing". D.E. #220 at p.7).
At page 10, Magistrate Bryant found: "Based on the record as it currently stands, Plaintiff has asserted facts sufficient to state a claim for an injunction under Title II of the ADA because he has demonstrated a documented diagnosis of his alleged disability and has offered specific facts to support the allegation that he will be subjected to discrimination by TDOC on the basis of his mental disorder as a result of TDOC's policy of preventing inmates from receiving psychological evaluations from prison medical staff in order to qualify for a special accommodation during inmate drug testing". Because it. appears likely that Plaintiff will encounter a future situation in which he will be required to give a urine sample for an inmate drug screen, his request for injunctive relief preventing TDOC from enforcing its policy prohibiting prison medical staff from officially diagnosing Plaintiff's disorder because it may implicate drug testing remains viable,...". (D.E.# 220 at p. 10).
IMPROPRER DISMISSAL WITH PREJUDICE
OF PLAINTIFF'S MEDICAL CASE
Plaintiff submits the District Court has abused its discretion and has improperly set itself up as a medical professional making diagnosis of the Plaintiff's future medical treatment at the hands of the Defendant (TDOC).
The District Court released an ORDER, D.E. #386 with MEMORANDUM, #386. The District Court has entered its ORDER of Dismissal with Prejudice based solely upon the personal Affidavits of two TDOC employees, Mr. Frank Gupton and Ms. Donna White. These affidavits, while attesting to actual facts make no reference to the "root cause" of the instant case, |he "Directive" issued by the Director of Substance Programs for the Defendant (TDOC).
UNDISPUTED GENUINE ISSUES OF MATERIAL FACT
THAT ARE QUESTIONS FOR THE JURY
And
PRECLUDE SUMMARY JUDGMENT
1.) On August 1, 2002 the Director of Substance Programs for the TDOC issued a "Directive" forbidding all TDOC medical staff from "getting involved in inmate drug testing" in any manner.
2.) At no time, nor in any written affidavit, has the Defendant (TDOC) ever denied that the internal "DIRECTIVE" referred to in TJ1, was issued by the Director of Substance Programs prior to August 1,2002.
3.) At no time, nor in any written affidavit, has the Defendant (TDOC) ever stated that the "Directive" has been withdrawn and is no longer binding upon all TDOC medial staff.
4.) The TDOC Inmate Drug Testing Policy 506.21, relied upon by the Defendant in the Affidavits of Mr. Frank Gupton and Ms. Donna White, was in full force and effect on December 30, 2011 when Inmate Michael A. Kelley, #465781 was denied a requested medical evaluation of his mental anxiety disorder (social phobia) named paruresis).
ARGUMENT SUPPORTING GRANTING MOTION FOR NEW TRIAL
Plaintiff submits that the District Court has acquiesced to the improper, ex parte ORDER and MEMORANDUM drafted by Defense Counsel in this case. It is obvious the District Court has not given the instant pro se prisoner case it deserves. The TDOC has continuously maintained its Inmate Drug Testing Policy 506.21 with the intent and purpose to comply with the federal constitutional requirements of the Americans with Disabilities Act of 1990. However, the District Court has refused to "pierce the pleadings and to assess the proof" , in the light most favorable to the party opposing the motion for summary judgment, and to see whether there is a genuine need for trial. Here the District Court fails to recognize that the "Rea Memorandum" released by the TDOC was released against the wishes of the TDOC. Further, the TDOC had in effect its Inmate Drug Testing Policy (506.21) at all times prior to, during and after the Plaintiff was denied medical treatment in violation of the ADA.
The District Court has refused to acknowledge the fact that the TDOC drug testing policy (506.21) was also in effect on December 30, 2011 when another inmate named Michael A. Kelley, #465781, sought and was denied medical treatment for his disability (paruresis). This disability is the same disability for which your Plaintiff has been continuously denied medical treatment by the TDOC because of the "DIRECTIVE" issued by the Director of Substance Programs for the TDOC prior to August 1, 2002.
The refusal of the District Court to recognize the "root cause" of the Plaintiff's medical problems, as reflected in D.E.# 220, clearly demonstrates the presence of a GENUINE ISSUE OF MATERIAL FACT which the TDOC has never denied its existence and purpose.
Plaintiff contends that the "DIRECTIVE" forbidding the TDOC medical staff from getting involved in inmate drug testing in any form creates a genuine issue of material fact. This is true because, while the District Court has attempted to restrict the ADA violations to the "Rea MEMORANDUM", Plaintiff has produced sworn affidavits from four (4) prisoners, at four (4) different prisons regarding the same "Directive".
Medical staff at the Turney Center Industrial Prison, Centerville, Tennessee; South Central Correctional Facility, Clifton, Tennessee; Riverbend Maximum Security Institution, Nashville, Tennessee; and the DeBerry Special Needs Facility, Nashville, Tennessee, had no reason to know anything about the "Rea Memorandum" which exposed the continuing ADA violations.
The District Court has, without any logical basis, determined that, "... there are not any facts that Plaintiff will be subjected to future disciplinary convictions for refusing a drug screening due to his paruresis".
The District Court goes on to grant unrequested " vicarious liability" to the TDOC based upon the "Rea Memorandum". These determinations were reached in light of the TDOC's policy #506.21. What the District Court fails and refuses to recognize is that this same policy has been in effect each and every time the Plaintiff and other inmates have sought medical treatment from the TDOC.
It is noteworthy that the TDOC has never DENIED THE DIRECTIVE WAS ISSUED BY THE DIRECTOR OF SUBSTANCE ABUSE PROGRANS FOR THE TDOC. THE TDOC HAS NEVER DENIED THAT THE DIRECTIVE HAS BEEN IN FULL FORCE AND EFFECT SINCE AUGUST 1, 2002.
CONCLUSION
For, but not limited to the foregoing reasons this District Court should GRANT the instant Rule 59(a)(2) Motion for a New Trial and allow the Plaintiff to present his case to a Jury. Plaintiff submits that the District Court has not given this pro se prisoner case the proper review and has erroneously found that no "genuine issues of material fact" exist. It is obvious the TDOC has maintained a practice and procedure which, while not contained in the promulgated policy, is violative of the ADA.
Plaintiff hereby requests this District Court to allow Plaintiff to present his claims to a jury for a final and just determination. A jury decision is necessary because the TDOC, while hiding behind its policy, operates a "secret directive" in violation of constitutionally protected rights of every TDOC prisoner who suffers the disability named paruresis.
RESPECTFULLY SUBMITTED ON THIS ____ DAY OF MARCH, 2012.
BY: ______________________
Danny Ray Seeks, #116192
D.S.N.F., U-15-A-26-b
7575 Cockrill Bend Blvd.
Nashville, TN 37209-1056
CERTIFICATE OF SERVICE
I, the undersigned, hereby certifies that a true and correct copy of the foregoing has been forwarded by First Class U.S. Mail with sufficient postage prepaid to guarantee delivery to the following:
Mr. Arthur Crownover II
Senior Counsel
P.O. Box 20207
Nashville, TN 37202-0207
BY: ______________________
Danny Ray Meeks