Cardona v. Federal Bureau of Prisons et al
MEMORANDUM OPINION & ORDER: 1. Dft S. Slone's Motion to Dismiss, or in the Alternative, Motion for Summary Judgment (R. 23 ) is GRANTED. 2. Cardona's Amended Complaint (R. 11 ) is DISMISSED. 3. All pending motions are DEN IED AS MOOT. 4. Action is STRICKEN from Court's active docket. 5. Judgment shall be entered contemporaneously with this Memorandum Opinion and Order. Signed by Judge Karen K. Caldwell on 9/1/2017. (TDA) cc: COR & Cardona (via US Mail)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at PIKEVILLE
JOSE CRISTOBAL CARDONA,
Civil Action No. 7: 15-125-KKC
*** *** *** ***
Plaintiff Jose Cristobal Cardona is an inmate confined by the Bureau of Prisons (“BOP”)
at the United States Penitentiary-Big Sandy (“USP-Big Sandy”) located in Inez, Kentucky.
Proceeding without an attorney, Cardona filed an Amended Complaint [R. 11] against Defendant
Sherry Slone, USP-Big Sandy’s Health Service Administrator (“HSA”), in which he asserts
constitutional claims under 28 U.S.C. § 1331, pursuant to the doctrine announced in Bivens v. Six
Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). Cardona has previously been granted
in forma pauperis status in this proceeding. [R. 13].
Defendant Slone has now filed a Motion to Dismiss, or in the Alternative, for Summary
Judgment. [R. 23]. Cardona has filed a Response [R. 25] and Slone has filed a Reply [R. 26].
Thus, this matter is fully briefed and ripe for review.
Factual and Procedural Background
In his Amended Complaint, Cardona alleges that, since he arrived at USP-Big Sandy, Slone
has refused to provide him medical treatment for his Hepatitis C, which has caused him pain on
his stomach and side. [R. 11, Amended Complaint at ¶¶ 11, 12]. Cardona further alleges that
Slone’s failure to provide him medical treatment is a violation of the Eight Amendment’s
prohibition against cruel and unusual punishment. [Id. at ¶ 14].
Based on these allegations,
Cardona seeks an injunction requiring Slone to arrange for Cardona to be provided with his
medication, as well as an award of compensatory and punitive damages. [Id. at p. 3]. Although
Cardona originally brought a variety of claims against multiple other parties [R. 1, 11], these claims
have previously been dismissed or severed from this case. [R. 7, 17]. Thus, Cardona’s Eighth
Amendment Bivens claim against Slone is the only claim remaining in this case. [R. 17].
Standard of Review
A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) tests the sufficiency of the
plaintiff’s complaint. Gardner v. Quicken Loans, Inc., 567 F. App’x 362, 364 (6th Cir. 2014).
When addressing a motion to dismiss, the Court views the complaint in the light most favorable to
the plaintiff and accepts as true all ‘well-pleaded facts’ in the complaint. D’Ambrosio v. Marino,
747 F.3d 378, 383 (6th Cir. 2014). Because the plaintiff here is proceeding without the benefit of
an attorney, the Court reads his complaint to include all fairly and reasonably inferred claims.
Davis v. Prison Health Servs., 679 F.3d 433, 437-38 (6th Cir. 2012).
Here, however, Slone moved both to dismiss and for summary judgment, attaching and
relying upon declarations extrinsic to the pleadings in support of her motion. [R. 23]. Thus, the
Court will treat Slone’s motion to dismiss the complaint as a motion for summary judgment under
Rule 56. Fed. R. Civ. P. 12(d); Wysocki v. Int’l Bus. Mach. Corp., 607 F. 3d 1102, 1104 (6th Cir.
2010). See also Ball v. Union Carbide Corp., 385 F.3d 713, 719 (6th Cir. 2004) (where defendant
moves both to dismiss and for summary judgment, plaintiff is on notice that summary judgment is
being requested, and the court’s consideration as such is appropriate where the nonmovant submits
documents and affidavits in opposition to summary judgment).
A motion under Rule 56 challenges the viability of another party’s claim by asserting that
at least one essential element of that claim is not supported by legally-sufficient evidence. Fed. R.
Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 324-25 (1986). A party moving for summary
judgment must establish that, even viewing the record in the light most favorable to the nonmovant,
there is no genuine dispute as to any material fact and that the party is entitled to a judgment as a
matter of law. Loyd v. St. Joseph Mercy Oakland, 766 F. 3d 580, 588 (6th Cir. 2014).
The Court reviews all of the evidence presented by the parties in a light most favorable to
the responding party, with the benefit of any reasonable factual inferences which can be drawn in
his favor. Harbin-Bey v. Rutter, 420 F. 3d 571, 575 (6th Cir. 2005). If the responding party’s
allegations are so clearly contradicted by the record that no reasonable jury could adopt them, the
court need not accept them when determining whether summary judgment is warranted. Scott v.
Harris, 550 U.S. 372, 380 (2007). The Court must grant summary judgment if the evidence would
not support a jury verdict for the responding party with respect to at least one essential element of
his claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). If the applicable substantive
law requires the responding party to meet a higher burden of proof, his evidence must be sufficient
to sustain a jury’s verdict in his favor in light of that heightened burden of proof at trial. Harvey
v. Hollenback, 113 F. 3d 639, 642 (6th Cir. 1997); Moore, Owen, Thomas & Co. v. Coffey, 992 F.
2d 1439, 1444 (6th Cir. 1993).
Cardona’s Failure to Exhaust His Administrative Remedies
As a preliminary matter, the Motion and supporting materials submitted by Slone [R. 23]
establish that Cardona did not properly and timely exhaust his administrative remedies as required
by federal law. Under the Prison Litigation Reform Act of 1995 (“PLRA”), a prisoner wishing to
challenge the manner in which his criminal sentence is being carried out under federal law must
first exhaust all available administrative remedies. 42 U.S.C. § 1997e(a); Jones v. Bock, 549 U.S.
199, 211 (2007) (“There is no question that exhaustion is mandatory under the PLRA and that
unexhausted claims cannot be brought in court.”). Requiring exhaustion of remedies available
within the agency whose actions are being challenged preserves the agency’s administrative
authority by providing the agency with “an opportunity to correct its own mistakes with respect to
the programs it administers before it is haled into federal court.” Woodford v. Ngo, 548 U.S. 81,
89 (2006). A prospective litigant must present their claim for relief in such a manner to “give the
agency a fair and full opportunity to adjudicate their claims...” Id. at 90.
The BOP’s Inmate Grievance System requires a federal prisoner to first seek informal
resolution of any issue with staff, and then to institute a formal grievance with the warden within
twenty days. 28 C.F.R. §§ 542.13, 542.14(a). If the prisoner is not satisfied with the warden’s
response, he or she must appeal to the appropriate regional office within twenty days, and if
unsatisfied with that response, to the General Counsel within thirty days thereafter. 28 C.F.R.
§ 542.15(a). See BOP Program Statement 1300.16. Because “[p]roper exhaustion demands
compliance with an agency’s deadlines and other critical procedural rules...,” Woodford, 548 U.S.
at 90, the prisoner must file the initial grievance and any appeals within these time frames.
The Sixth Circuit has made clear that a prisoner must take each of these steps and complete
the entire prison grievance process before filing suit:
While we recognize that plaintiff made some attempts to go through the prison’s
grievance procedures, we must dismiss plaintiff’s complaint because he filed his
federal complaint before allowing the administrative process to be completed. The
plain language of the statute makes exhaustion a precondition to filing an action in
federal court...The prisoner, therefore, may not exhaust administrative remedies
during the pendency of the federal suit.
Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999) (citations omitted).
However, while Cardona has previously pursued an administrative remedy with respect to
his medical treatment at another BOP institution, he has not done so with respect to his medical
treatment at USP-Big Sandy. On February 12, 2014, while Cardona was housed at the United
States Penitentiary, Allenwood (‘USP-Allenwood”) in Allenwood, Pennsylvania, Cardona filed
an Informal Resolution Form (BP-8) at UPS-Allenwood complaining that, although he had signed
a consent for Hepatitis C treatment on November 15, 2013, and had been cleared for the Hepatitis
C treatment, he had not received medical treatment for his Hepatitis C. [R. 23-2, Martinez Decl.,
Attachment D at p. 206]. On February 20, 2014, a medical officer at USP-Allenwood responded
to Cardona’s BP-8, explaining that Cardona’s medical file had been reviewed and, at that time, he
did not meet the criteria for hepatitis treatment based on the BOP’s current guidelines for the
treatment of Hepatitis C. [Id. at p. 207]. Cardona then pursued this administrative claim by filing
a Request for Administrative Remedy (BP-9) with the Warden at USP-Allenwood [id. at p. 208209], followed by a Regional Administrative Remedy Appeal (BP-10) to the North-East Regional
Office (“NERO”), the regional office for USP-Allenwood, [id. at p. 211], as well as an appeal to
the General Counsel (BP-11), re-alleging Cardona’s assertion that there was a conspiracy to deny
Cardona Hepatitis C treatment at USP-Allenwood in retaliation for filing grievances. [Id. at p.
This February 20, 2014 claim involved only allegations regarding Cardona’s treatment at
another BOP facility, involved different medical providers, and occurred prior to Cardona’s
transfer to USP-Big Sandy in August 2014. To properly exhaust a claim, an inmate must identify
the issue with sufficient particularity to permit prison officials with a reasonable opportunity to
address it. Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004). In Jones v. Bock, 549 U.S. 199
(2007), the Supreme Court addressed the question of “how courts determine whether a prisoner
has properly exhausted administrative remedies - specifically, the level of detail required in a
grievance to put the prison and individual officials on notice of the claim.” Id. at 205. Citing
Woodford, the Court held that “[t]he level of detail necessary in a grievance to comply with the
grievance procedures will vary from system to system and claim to claim, but it is the prison’s
requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Id. at 218.
Here, the Court must turn to the BOP’s Administrative Remedy Program, the program
through which inmates may seek formal review of issues related to any aspect of their confinement,
to determine whether Cardona has exhausted his administrative claim. Although the BOP does
not require that a particular defendant being sued also be named in earlier grievances, it does
require an inmate to “place a single complaint or a reasonable number of closely related issues”
on a single form, explaining that this “facilities indexing, and promotes efficient, timely and
comprehensive attention to the issues raised.” BOP Program Statement 1330.018, Administrative
Remedy Program [R. 23-2, Martinez Decl., Attachment D at p. 220].
In this case, at each step of the administrative process of Cardona’s February 12, 2014
claim, Cardona’s allegations only related to his Hepatitis C treatment at USP-Allenwood. At no
point throughout the process related to this administrative claim did Cardona make any references
to treatment he did or did not receive at USP-Big Sandy, nor could he have, as he had not yet been
transferred to USP-Big Sandy when he filed this claim. Thus, the only claims investigated and
addressed in Cardona’s February 12, 2014 claim, were against USP-Allenwood, not against USPBig Sandy or Slone. Moreover, those allegations all involved conduct that occurred prior to
Cardona’s transfer to USP-Big Sandy in August 2014. [R. 11]. Notably, as of February 7, 2017,
Cardona has filed over 350 Administrative Remedies while he has been housed in the BOP [R. 232, Martinez Decl. at ¶ 5], thus he cannot claim ignorance of how to do so with respect to his
treatment at USP-Big Sandy. Regardless, while Cardona may have pursued his administrative
remedies with respect to his Hepatitis C treatment at USP-Allenwood, he has not pursued, much
less exhausted, any administrative remedies with respect to his allegations made in this case
regarding his Hepatitis C treatment at USP-Big Sandy.
In his response, with respect to the exhaustion of his available administrative remedies,
Cardona argues that “[t]he defendant is wrong,” without further explanation. [R. 25 at p. 2]. The
Court has an obligation to liberally construe pleadings filed by a person proceeding without
counsel, but it has no authority to create arguments or claims that the plaintiff has not made.
Coleman v. Shoney’s, Inc., 79 F. App’x 155, 157 (6th Cir. 2003) (“Pro se parties must still brief
the issues advanced with some effort at developed argumentation.”). Cardona also argues that the
provisions of the PLRA do not apply to him because he is “actually a Mexican Slave” and the
PLRA does not apply to “an individual subjected to involuntary servitude.” [Id. at 1-2]. The Sixth
Circuit Court of Appeals has previously considered and rejected Cardona’s argument that he is
currently being subject to “involuntary servitude.” Cardona v. Warden, Big Sandy U.S.P., No. 166524 (6th Cir. Mar. 21, 2017). Even so, without question, Cardona is a “prisoner confined in [a]
jail, prison, or other correctional facility,” 42 U.S.C. § 1997e(a), thus he must comply with the
requirements of the PLRA prior to filing a lawsuit.
Because it is clear that Cardona failed to file any grievance with respect to his treatment as
USP-Big Sandy prior to filing his Complaint in this action, let alone pursue his available appeals
to completion, he did not satisfy the exhaustion requirement of 42 U.S.C. § 1997e(a) prior to filing
his complaint, which must therefore be dismissed. Liggett v. Mansfield, 2009 WL 1392604, at *23 (E.D. Tenn. May 15, 2009) (“A prisoner who files a grievance but does not appeal to the highest
possible administrative level, does not exhaust available administrative remedies.”) (citing
Hartsfield v. Vidor, 199 F.3d 305, 309 (6th Cir. 1999)).
Cardona’s Complaint is Untimely
In addition, Cardona’s claim must be dismissed with prejudice because he did not file suit
within the time permitted by the applicable statute of limitations, thus it is time-barred. According
to Cardona, he was transferred from USP-Allenwood to USP-Big Sandy in August of 2014. [R.
11, Amended Complaint at ¶ 9]. He further alleges that “[u]pon arrival at USP-Big Sandy,” he
requested medication for his Hepatitis C during a teleconference with an unknown doctor and was
told that Slone would attend to his infectious disease. [Id. at ¶ 10]. He then claims that, although
Slone scheduled him for bloodwork, she refused and ignored his request for medication. [Id. at ¶
11]. Although an exact date is not given, Cardona alleges that his allegedly deficient medical care
began “upon his arrival to USP-Big Sandy” in August 2014. [Id. at ¶ 10-12].
Because the remedy afforded in a Bivens action is entirely judge-made, there is no statutory
limitations period. Instead, federal courts apply the most analogous statute of limitations from the
state where the events occurred. Wilson v. Garcia, 471 U.S. 261, 268-71 (1985). The medical
care about which Cardona now complains occurred in Kentucky; therefore, Kentucky’s one-year
statute of limitations for asserting personal injuries applies. Ky. Rev. Stat. § 413.140(1)(a);
Hornback v. Lexington-Fayette Urban Co. Gov’t., 543 F. App’x 499, 501 (6th Cir. 2013); Mitchell
v. Chapman, 343 F.3d 811, 825 (6th Cir. 2003). The Kentucky-related medical care which forms
the basis for this severed action began upon Cardona’s arrival to USP-Big Sandy in August
2014. [R. 11 at ¶ 10-12]. As Cardona alleges that his requests for Hepatitis C treatment were
refused beginning in August 2014, his claim accrued at this time. Estate of Abdullah ex rel.
Carswell v. Arena, 601 F. App’x 389, 393-94 (6th Cir. 2015) (“Once the plaintiff knows he has
been hurt and who has inflicted the injury, the claim accrues.”) (internal quotation marks omitted)
(citing United States v. Kubrick, 444 U.S. 111, 122 (1979)). Because Cardona did not file suit
until December 7, 2015, more than one year after the date his claims accrued, his claim is barred
by the applicable statute of limitations and must be dismissed. Dellis v. Corr. Corp. of Am., 257
F.3d 508, 511 (6th Cir. 2001).
In his response, Cardona does not deny that he filed his lawsuit more than one year after
he became aware of his injury. [R. 25]. Rather, he argues that his claim falls under the “continuing
violation” doctrine. [Id. at p. 3]. Cardona also argues that he has “been real busy attempting to
litigate all my civil and criminal litigation pro-se” and argues that he should be entitled to equitable
tolling on these grounds. [R. 25-1 at ¶ 12].
Cardona makes absolutely no effort to explain or develop his arguments that his claim falls
under the “continuing violation” doctrine or that he is entitled to equitable tolling, thus waiving
these arguments. “[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived. It is not sufficient for a party to mention a possible
argument in the most skeletal way, leaving the court to...put flesh on its bones.” McPherson v.
Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997) (quoting Citizens Awareness Network, Inc. v. United
States Nuclear Regulatory Comm'n, 59 F.3d 284, 293–94 (1st Cir.1995) (citation omitted)) (other
Even so, Cardona’s argument that the date of accrual of his claim should be extended
pursuant to the “continuing violation” doctrine is without merit. The Sixth Circuit Court of
Appeals summarized the test for determining the existence of a continuing violation as follows:
First, the defendant’s wrongful conduct must continue after the precipitating event
that began the pattern....Second, injury to the plaintiff must continue to accrue after
that event. Finally, further injury to the plaintiff [ ] must have been avoidable if the
defendants had at any time ceased their wrongful conduct.
Eidson v. State of Tennessee Dep't of Children's Servs., 510 F.3d 631, 635 (6th Cir. 2007) (quoting
Tolbert v. State of Ohio Dep’t of Transp., 172 F.3d 934, 940 (6th Cir. 1999) (other citations
omitted)). The Sixth Circuit further explained that a “continuing violation is occasioned by
continual unlawful acts, not continual ill effects from an original violation.” Id. (quoting Tolbert,
172 F.3d at 940). Notably, “[p]assive inaction does not support a continuing violation theory.”
Id. (citations omitted).
Here, Cardona alleges only that Slone “ignores” his requests for medication and is “never
available.” [R. 11 at ¶¶ 11-12]. Thus, his allegations describe “passive inaction” as opposed to
discrete, continual unlawful acts and, accordingly, are insufficient to establish the existence of a
continuing violation sufficient to invoke the continuing violation doctrine.
Moreover, Cardona has failed to establish the presence of any circumstances that would
justify tolling the statute of limitations applicable to his claims on equitable grounds. Although
the running of the applicable statute of limitations may be tolled for the period during which a
prisoner is exhausting the available administrative remedies, Brown v. Morgan, 209 F.3d 595, 596
(6th Cir. 2000), Cardona did not pursue any administrative remedies with respect to his Eighth
Amendment Bivens claim regarding his medical treatment at USP-Big Sandy by Slone. Thus, the
statute of limitations on Cardona’s claims is not tolled on these grounds.
In addition, the doctrine of equitable tolling applies sparingly and “only when a litigant’s
failure to meet a legally-mandated deadline unavoidably arose from circumstances beyond that
litigant’s control.” Jurado v. Burt, 337 F.3d 638, 642 (6th Cir. 2003) (quoting Graham-Humphreys
v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 560-61 (6th Cir.2000)). Equitable tolling
applies only if two requirements are met. “First, the petitioner must establish ‘that he has been
pursuing his rights diligently.’ And second, the petitioner must show ‘that some extraordinary
circumstance stood in his way and prevented timely filing.’” Hall v. Warden, Lebanon Corr. Inst.,
662 F.3d 745, 749 (6th Cir. 2011) (quoting Holland v. Florida, 560 U.S. 631, 649 (2010)).
Neither of these requirements are met here. Cardona offers only that he has been “real
busy” attempting to manage all of his civil and criminal litigation pro se. “It is well settled that
the lack of legal assistance, ignorance of the law or the frustrations of typical prison conditions
that make prison-based litigation difficult, such as transfers, lack of access to copies and legal
materials, do not constitute exceptional circumstances justifying equitable tolling.” Portman v.
Wilson, No. 10-cv-169-KSF, 2010 WL 4962922 at *2 (E.D. Ky., December 1, 2010) (citations
omitted). Thus, equitable tolling of the statute of limitations is not justified in this case.
Cardona’s Eighth Amendment Claim Fails
Finally, even putting aside Cardona’s failure to exhaust his administrative remedies and
the untimeliness of his claim, Cardona fails to state a viable claim for violation of the Eighth
Amendment. The Eighth Amendment “forbids prison officials from ‘unnecessarily and wantonly
inflicting pain’ on an inmate by acting with ‘deliberate indifference’ toward [his] serious medical
needs.” Blackmore v. Kalamazoo County, 390 F. 3d 890, 895 (6th Cir. 2004) (quoting Estelle v.
Gamble, 429 U.S. 97, 104 (1976)). A plaintiff asserting deliberate indifference to his serious
medical needs must establish both the objective and subjective components of such a claim. Jones
v. Muskegon Co., 625 F. 3d 935, 941 (6th Cir. 2010). The objective component requires the
plaintiff to show that the medical condition is “sufficiently serious,” Farmer v. Brennan, 511 U.S.
825, 834 (1994), such as one “that has been diagnosed by a physician as mandating treatment or
one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s
attention.” Harrison v. Ash, 539 F. 3d 510, 518 (6th Cir. 2008) (citations omitted). The subjective
component requires the plaintiff to show that prison officials actually knew of a substantial risk of
harm to the plaintiff’s health but consciously disregarded it. Cooper v. County of Washtenaw, 222
F. App’x 459, 466 (6th Cir. 2007); Brooks v. Celeste, 39 F. 3d 125, 128 (6th Cir. 1994).
Even assuming that Cardona could satisfy the objective component, the subjective
component requires a showing that his health care providers were aware of his medical conditions
yet, through their actions, chose to consciously and deliberately disregard a serious risk to his
health, a much more demanding standard. Farmer, 511 U.S. at 834; Arnett v. Webster, 658 F. 3d
742, 751 (7th Cir. 2011) (“Deliberate indifference ‘is more than negligence and approaches
intentional wrongdoing.’”) (quoting Collignon v. Milwaukee Cnty., 163 F.3d 982, 988 (7th Cir.
Here, Cardona complains that Slone failed to treat his Hepatitis C with medication, as he
requested. [R. 11]. However, the medical evidence submitted by Slone establishes that, since
Cardona has been housed at USP-Big Sandy, he has been regularly examined, tested and monitored
through the Chronic Care Clinics for his Hepatitis C condition. [R. 23-1, Dr. Marrero Decl. at ¶
4, Medical Records]. Cardona’s condition has been evaluated and managed and he has been found
to be stable with no significant symptoms or signs requiring the initiation of treatment. [Id.]. Slone
has submitted evidence that, in determining not to provide treatment for Cardona’s Hepatitis C,
the medical personnel reviewed test results, BOP policy guidelines, American Association for the
Study of Liver Diseases, the Infectious Diseases Society of America and International Antiviral
Society-USA guidance and updates, and determined that Cardona is not a candidate for treatment.
[R. 23-1, Dr. Marrero Decl. at ¶ 5, Attachment C].
In contrast, Cardona offers only his opinion that he believes that he should be receiving
medication for his condition and that Slone’s denial of this medication constitutes deliberate
indifference to his medical needs. [R. 11]. However, the extensive history of medical testing and
evaluation submitted by Slone is sufficient to refute this claim, even if Cardona disagrees with his
treating physician’s conclusion that his symptoms did not support treatment of his condition.
Graham ex rel. Estate of Graham v. County of Washtenaw, 358 F.3d 377, 385 (6th Cir. 2004)
(“[w]here a prisoner has received some 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 state tort law.”)
Simply put, the facts here are insufficient to support a claim of deliberate indifference to
Cardona’s health. Where a prisoner has been examined and treatment provided but the prisoner
merely disagrees with the course of care determined by his treating physician in the exercise of his
medical judgment, his claim sounds in state tort law – it does not state a viable claim of deliberate
indifference under the Eighth Amendment. Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014).
See also Durham v. Nu’Man, 97 F. 3d 862, 868-69 (6th Cir. 1996). Even “[w]hen a prison doctor
provides treatment, albeit carelessly or inefficaciously, to a prisoner, he has not displayed a
deliberate indifference to the prisoner’s needs, but merely a degree of incompetence which does
not rise to the level of a constitutional violation.” Comstock v. McCrary, 273 F. 3d 693, 703 (6th
Cir. 2001). A prisoner’s “disagreement with the exhaustive testing and treatment he received while
incarcerated does not constitute an Eighth Amendment violation.” Lyons v. Brandy, 430 F. App’x
377, 381 (6th Cir. 2011) (citing Estelle, 429 U.S. at 107; Westlake v. Lucas, 537 F.2d 857, 860 n.5
(6th Cir. 1976)); see also Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir. 2008) (“Deliberate
indifference is not medical malpractice; the Eighth Amendment does not codify common law
In sum, Cardona’s disagreement with his treating physicians regarding the best course of
treatment is insufficient to state a claim of deliberate indifference under the Eighth Amendment.
Thus, Cardona’s Amended Complaint fails to state a claim for violation of the Eighth Amendment.
Accordingly, IT IS ORDERED that:
Defendant S. Slone’s Motion to Dismiss, or in the Alternative, Motion for Summary
Judgment [R. 23] is GRANTED.
Cardona’s Amended Complaint [R. 11] is DISMISSED.
All pending motions in this case are DENIED AS MOOT.
This action is STRICKEN from the Court’s active docket.
Judgment shall be entered contemporaneously with this Memorandum Opinion and
Dated September 1, 2017.
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