                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0142n.06

                                            No. 08-6432                                    FILED
                                                                                       Mar 10, 2011
                           UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


ROBERT LEE BARNETT,                                        )
                                                           )        ON APPEAL FROM THE
       Plaintiff-Appellant,                                )        UNITED STATES DISTRICT
                                                           )        COURT FOR THE WESTERN
v.                                                         )        DISTRICT OF TENNESSEE
                                                           )
MARK H. LUTTRELL, JR., Shelby County                       )                           OPINION
Sheriff; TONY COOPER, Medical Director; ET                 )
AL.,                                                       )
                                                           )
       Defendants-Appellees.




BEFORE:        MOORE, COLE and ROGERS, Circuit Judges.

       COLE, Circuit Judge. Plaintiff-Appellant Robert Lee Barnett is a Tennessee prisoner who

appeals the dismissal, under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A, of his pro se complaint. His

complaint, filed under 42 U.S.C. § 1983, alleged that Defendants-Appellees Shelby County and its

employees and officials denied him adequate medical care and mishandled his grievances. The

district court dismissed Barnett’s complaint for failure to state a claim, but we find that some of his

claims are adequate to survive dismissal: namely, the failure-to-treat claims against defendants Terrie

and Cooper. For that reason, we AFFIRM in part and REVERSE in part the district court’s

dismissal, and REMAND for further proceedings consistent with this opinion.
No. 08-6432
Barnett v. Luttrell, et al.

                                                   I.

        We take all facts “from the [c]omplaint, since those were the facts available to the district

court.” Williams v. Curtin, --- F.3d ---, No. 09-1381, 2011 WL 284494, at *1 (6th Cir. Jan. 31,

2011). In 2002, Barnett was incarcerated in Shelby County and allegedly received improper

treatment and counseling for tuberculosis. In June 2004, also while incarcerated in Shelby County,

Barnett claims he sought treatment for tuberculosis yet again, but received only delayed treatment.

        On June 26, 2004, Barnett was to receive ibuprofen from Nurse Terrie, but she incorrectly

gave him Dilantin, the seizure medication of another patient. Shift Officer J. Hicks sent him to the

medical unit without an escort after determining that Barnett took the wrong medicine. On the way

to the medical unit, Barnett grew dizzy and fell down the escalator, sustaining a head injury and

headaches as a result. No one administered any treatment to Barnett after this injury.

        On September 16, 2004, Barnett filed his pro se complaint in the United States District Court

for the Western District of Tennessee. The district court dismissed his complaint for failure to

exhaust on February 17, 2006, but we reversed that dismissal and reinstated Barnett’s complaint on

June 7, 2006, Barnett v. Luttrell, No. 06-5438 (6th Cir. June 7, 2007). On remand, the district court

again dismissed Barnett’s complaint, this time largely for failure to state a claim. Barnett timely

appealed.

                                                   II.

        We review de novo the district court’s dismissal under §§ 1915(e)(2) and 1915A. Grinter

v. Knight, 532 F.3d 567, 571-72 (6th Cir. 2008). To avoid dismissal, “a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

                                                  -2-
No. 08-6432
Barnett v. Luttrell, et al.

Ashcroft v. Iqbal, --- U.S. ---, 129 S. Ct. 1937, 1949 (2009) (emphasis added) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). However, “we are mindful to construe [a pro se

litigant’s] arguments liberally.” El Bey v. Roop, 530 F.3d 407, 413 (6th Cir. 2008).

        Barnett appeals the denial of only a subset of his claims: those pertaining to M. Love, Nurse

Terrie, Shift Officer J. Hicks, Medical Administrator Tony Cooper, Nurse Webb, Dr. Stipanuk,

Shelby County Sherriff Mark H. Luttrell, Shelby County, and Correctional Medical Services

(“CMS”). His complaints regarding these parties fall into seven general categories: (1) failure to

diagnose correctly his tuberculosis in 2002; (2) failure to remedy or act on his tuberculosis in 2004;

(3) administration of Dilantin instead of ibuprofen; (4) failure to accompany him to the medical unit

after administration of Dilantin, resulting in his fall down the escalator; (5) failure to treat his

headaches and other pain resulting from that fall; (6) failure to adequately train and supervise prison

personnel; and (7) general inappropriate handling of his grievances.

        As an initial matter, we reject two of the arguments Barnett makes for procedural and

jurisdictional reasons. Barnett’s arguments relating to events in 2002 are time-barred, see Tenn.

Code Ann. § 28-3-104(a)(3) (one-year statute of limitations for section 1983 claims in Tennessee);

Hughes v. Vanderbilt Univ., 215 F.3d 543, 547 (6th Cir. 2000) (acknowledging the same), and

Barnett gives us no reason to exempt his claims here. Also, Barnett’s tuberculosis claims include

the argument that defendants improperly released him into the general prison population, seemingly

because of the risk he posed to other inmates. Barnett, however, does not have standing to raise

arguments on behalf of others. See Jones v. Caruso, 569 F.3d 258, 276-77 (6th Cir. 2009). We

therefore affirm the district court’s dismissal of both of these claims.

                                                 -3-
No. 08-6432
Barnett v. Luttrell, et al.

        Turning to the merits, we note that Barnett’s claims allege infringement of two different

constitutional rights: First Amendment access to the courts and Eighth Amendment denial of medical

treatment.

        A. First-Amendment Claim

        Barnett alleges that Love did not properly deal with Barnett’s grievances, and that Love

falsified various of Barnett’s information in relation to the grievances. In effect, Barnett appears to

argue that Love did not follow the grievance procedure and acted in a manner that frustrated

Barnett’s attempts to gain relief through that procedure.

        Prison officials are not liable under § 1983 for denying or failing to act on grievances.

Grinter v. Knight, 532 F.3d 567, 576 (6th Cir. 2008). They are liable, however, for frustrating a

prisoner’s First Amendment right to access the courts. Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir.

1996). To state a violation of this right, a prisoner must allege that a prison official’s conduct caused

him an actual injury, such as frustration of a particular legal claim. Hadix v. Johnson, 182 F.3d 400,

405-06 (6th Cir. 1999). Barnett identifies no injury from this alleged frustration, so his First

Amendment claim must fail. Because this violation is the only basis for recovery from Love that

Barnett has pursued on appeal, the district court properly dismissed Love from this litigation.

        B. Eighth-Amendment Claims

        The Eighth Amendment prohibits prison officials from “unnecessarily and wantonly

inflicting pain” on prisoners by acting with “deliberate indifference” to their “serious medical

needs.” Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 895 (6th Cir. 2004) (internal quotation marks

and citation omitted). Such a claim has both a subjective and objective component. Id. The

                                                  -4-
No. 08-6432
Barnett v. Luttrell, et al.

objective component mandates a sufficiently serious medical need. Id. The subjective component

regards prison officials’ state of mind. Id. Deliberate indifference “entails something more than

mere negligence, but can be satisfied by something less than acts or omissions for the very purpose

of causing harm or with knowledge that harm will result.” Id. at 895-96 (internal quotation marks

and citations omitted). The prison official must “be aware of facts from which the inference could

be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id. at

896 (internal quotation marks and citation omitted).

                1. Defendant Terrie

        Barnett alleges that Terrie, a nurse, gave him Dilantin, an anti-seizure medication, rather than

the ibuprofen he was supposed to receive. He alleges further that she “left the ‘scene’ of the incident

without supervision of plaintiff [sic] care” and “violated plaintiff [sic] care by denying plaintiff of

[sic] treatment for headache after plaintiff [sic] fall.”1 The subjective component of Eighth-

Amendment claims “is meant to prevent the constitutionalization of medical malpractice claims,”

Dominguez v. Correctional Med. Servs., 555 F.3d 543, 550 (6th Cr. 2009) (internal quotation marks

and citation omitted), and Barnett alleges no facts suggesting that Terrie’s incorrect administration

of Dilantin was anything other than negligent. It thus constituted medical malpractice at most and

cannot constitute an Eighth-Amendment violation. See id.




        1
       Barnett alleged below also that the Dilantin caused him a rash, but he seems to have
abandoned that claim on appeal, so we do not consider it. See Bickel v. Korean Air Lines Co., 96
F.3d 151, 153 (6th Cir. 1996).

                                                 -5-
No. 08-6432
Barnett v. Luttrell, et al.

        However, Barnett’s claim that Terrie abandoned him after his fall without providing him with

any treatment does state a plausible claim for relief under the Eighth Amendment. Terrie’s alleged

presence at the fall and subsequent departure satisfy the subjective requirement. See Blackmore, 390

F.3d at 895-96. And the fact that Barnett, a pro se non-lawyer, titles many of his claims “medical

negligence” is immaterial, for a plaintiff pleads facts, not legal claims. See Iqbal, 129 S. Ct. at 1949.

It is our job to place those facts into the corresponding legal boxes. See id.

        As for the other component of an Eighth-Amendment claim, head injuries—especially after

as significant a fall as the one Barnett alleges—are sufficiently serious to satisfy the objective

requirement. See Talal v. White, 403 F.3d 423, 427 (6th Cir. 2005); see also Williams, 2011 WL

284494, at *3 (finding that “coughing and a shortage of oxygen” is adequately serious, and that—in

any case—the “de minimus” nature of an injury is an insufficient basis for dismissal of a complaint).

In Talal, we found “sinus problems and dizziness” adequate to constitute a serious medical need.

403 F.3d at 427. Here, the headaches and pain caused by the fall are of comparable nature to the

injuries alleged in Talal, so we find that Barnett has adequately pled an Eighth-Amendment claim

against Terrie. The dismissal of this claim against her was thus in error.

                2. Defendant Hicks

        Barnett’s allegation against Hicks, the shift officer on duty when Terrie allegedly improperly

gave Barnett Dilantin, is that she sent Barnett to the medical unit without an escort. Barnett,

however, does not allege facts that would give us any reason to believe Hicks understood the

significance of Barnett’s ingestion of Dilantin, including any immediate side effects such as

dizziness. At most, Hicks’s actions constitute negligence, which is not actionable under the Eighth

                                                  -6-
No. 08-6432
Barnett v. Luttrell, et al.

Amendment. See Blackmore, 390 F.3d at 895. The district court thus properly dismissed Hicks as

a party.

                  3. Defendant Cooper

           Aside from the 2002-related claims addressed above, Barnett alleges that Cooper, the prison

medical director, failed to adequately supervise the nursing staff and did not provide medical

treatment after his Dilantin-related fall (that Cooper did “not se[e] to plaintiff getting the proper

medical attention and treatment”). Because Barnett does not allege that Cooper took any deliberate

action or otherwise involved himself personally in Terrie’s purported actions, the failure-to-supervise

claim is not well taken. See Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (requiring “either

encourage[ment of] the specific incident of misconduct or in some other way direct[] participat[ion]

in it” for supervisory liability under § 1983). However, Barnett’s allegation that Cooper took no

action to treat Barnett’s fall-caused head injuries adequately states a claim for relief. Barnett alleges

that he made Cooper aware of the injury through the health-service-request and grievance processes,

satisfying the subjective requirement. See Blackmore, 390 F.3d at 895-96. And, as explained above,

the purported head injuries are sufficiently serious to meet the objective requirement. See Talal, 403

F.3d at 427. Barnett thus sufficiently pled an Eighth-Amendment claim against Cooper, and the

dismissal of this claim against Cooper was in error.

                  4. Defendant Webb

           Barnett alleges that Webb violated his rights based on actions taken in 2002 and potential

harm caused to others. As explained above, those arguments fail as a matter of law. One allegation

remains: an unclear complaint regarding Webb’s purported delay in receiving results from a 2004

                                                  -7-
No. 08-6432
Barnett v. Luttrell, et al.

tuberculosis test and getting Barnett medication for his disease. This allegation alternates between

alleging negligence for incorrectly checking the results of his tuberculosis test and deliberate failure

to treat for a period of time. To the extent that Barnett alleges negligence, his claim is not actionable.

See Blackmore, 390 F.3d at 895. His claim of deliberate delayed failure to treat, meanwhile, does

not allege a sufficiently serious consequence of that purported delay to survive dismissal. See id. at

897-98. The district court thus properly dismissed Webb as a party.

                5. Defendant Stipanuk

        Because they are partially time-barred and partially precluded by standing, Barnett’s

allegations against Stipanuk regarding the 2002 diagnosis or counseling regarding tuberculosis must

fail. Barnett also alleges, seemingly for the first time on appeal, that Stipanuk is liable for his failure

to train and supervise the nurses that Barnett sues. Because Barnett did not advance this argument

below, we may not consider this claim. See Varhola v. Doe, 820 F.2d 809, 815 n.4 (6th Cir. 1987).

Yet even were we to consider the merits of this argument, Barnett has failed to allege facts that

would indicate Stipanuk “either encouraged the specific incident of misconduct or in some other way

directly participated in it.” Shehee, 199 F.3d at 300 (internal quotation marks and citation omitted).

The district court thus properly dismissed Stipanuk as a party.

                6. Defendant Luttrell

        Barnett alleges that Luttrell, the Shelby County Sheriff, failed to adequately train and

supervise jail employees. However, there is no respondeat superior liability under § 1983, and

Barnett does not allege that Luttrell encouraged or participated in any particular unconstitutional

action. See id. A failure-to-train claim, meanwhile, is properly directed against the municipality.

                                                   -8-
No. 08-6432
Barnett v. Luttrell, et al.

See Phillips v. Roane Cnty., Tenn., 534 F.3d 531, 543-44 (6th Cir. 2008). The district court thus

properly dismissed Luttrell as a party.

                7. Defendants Shelby County and Correctional Medical Services

        Barnett argues that Shelby County and CMS failed to train and supervise their employees,

but he points to no deliberate action by CMS, see Shehee, 199 F.3d at 300, and does not allege facts

indicating a particular municipal policy or custom of deliberate indifference, see Miller v. Sanilac

Cnty., 606 F.3d 240, 255 (6th Cir. 2010). Barnett thus has not adequately pled these claims, and the

district court properly dismissed Shelby County and CMS as defendants.

                                                III.

        For the foregoing reasons, we AFFIRM the district court’s dismissal of Barnett’s claims

against all defendants but Terrie and Cooper, REVERSE the district court’s dismissal of Barnett’s

failure-to-treat claims against Terrie and Cooper, and REMAND for further proceedings consistent

with this opinion.




                                               -9-
No. 08-6432
Barnett v. Luttrell, et al.

ROGERS, J., concurring in part and dissenting in part.



        I would affirm in its entirety the district court’s careful dismissal of plaintiff’s haphazard and

rambling complaint. The claims against defendants Terrie and Cooper are stated in terms of medical

malpractice or negligence, and require considerable inference to be read as Eighth Amendment

deliberate-indifference claims. Barnett’s complaint does not suggest that Terrie flat-out abandoned

Barnett after seeing him injure himself, and instead describes a case of inadequate medical attention.

The fact that Barnett labeled this portion of his complaint “Medical Negligent” makes this clear. For

Cooper too, Barnett’s complaint appears concerned with inadequate medical attention, the primary

example of which is Cooper’s failure to order Barnett a cat scan, rather than with some absolute

refusal to provide Barnett any medical treatment.




                                                 - 10 -
