Dunson v. Lyons

Filing 6

MEMORANDUM: For the reasons explained in the accompanying memorandum, the Court dismisses this action under 28 U.S.C. § 1915A(b)(1).cc: Plaintiff (pro se), Defendant (JM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
MARK ANTHONY DUNSON

PLAINTIFF

v.

CIVIL ACTION NO. 3:21-cv-413-BJB

CHRISTINA C. LYONS

DEFENDANT
MEMORANDUM OPINION

Plaintiff Mark Anthony Dunson initiated this pro se 42 U.S.C. § 1983 action. This matter
is before the Court for screening pursuant to 28 U.S.C. § 1915A and McGore v. Wrigglesworth,
114 F.3d 601, 604 (6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199
(2007). For the following reasons, the Court dismisses this lawsuit.
I. STATEMENT OF CLAIMS
Plaintiff, an inmate at the Kentucky State Reformatory (KSR), names as Defendant
Christina C. Lyons, an “APRN” (or Advanced Practice Registered Nurse) with “Corrections
Care Solutions,” the medical provider for KSR.
It appears from the Complaint that Plaintiff suffered from chronic neck pain for some
time. Plaintiff alleges:
My pain meds from Jan. to Dec. 4, 20 I taking off my pain meds and I was told to
buy pain releavers from Canteen[.] In all my sick-call medical Records, all my
encounters with my doctor I describe my pain[.] I hurt constanly so bad my pain is
a 10 out 10[.]
DN 1 at 4.
Plaintiff further alleges that his neck is “not right”; that his pain is “worsening daily”; and
that he is “being forced off of” his muscle relaxer, which he states he had been taking since May
2020. He states that his muscle-relaxer prescription is being discontinued because he refuses to

have contact with Defendant Lyons for fear of retaliation and “problems” because he is
“currently proceeding an outside case” on Defendant Lyons. Id. at 5.
Plaintiff attaches 200 pages of exhibits, almost all of which are his prison medical
records.
As relief, Plaintiff asks for monetary damages. Id. at 6.
II. STANDARD OF REVIEW
When a prisoner sues a governmental entity, officer, or employee, the trial court must
review the complaint and dismiss the case if it is frivolous or malicious, fails to state a claim
upon which relief may be granted, or seeks monetary relief from a defendant who is immune
from such relief. See 28 U.S.C. § 1915A(b)(1) and (2). When screening the complaint, the
Court must construe it in the light most favorable to Plaintiff and accept well-pled allegations as
true, but has no obligation to accept “fantastic or delusional” allegations as true. Hill v. Lappin,
630 F.3d 468, 471 (6th Cir. 2010) (quotation omitted). And while a reviewing court liberally
construes pro se pleadings, see id. at 471; Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per
curiam), a complaint must include “enough facts to state a claim to relief that is plausible on its
face” in order to avoid dismissal, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
III. ANALYSIS
A. Claims under the Eighth Amendment
Reading the Complaint liberally, Plaintiff alleges that the denial of medication for the
pain in his neck on December 4, 2020, violates his Eighth Amendment right to be free from cruel
and unusual punishment. In particular, Plaintiff alleges that he is no longer given pain
medication for his neck but instead must buy it from the canteen and that his prescription for a

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muscle relaxer is being discontinued because he refuses to be seen by Defendant Lyons. Neither
of these allegations, however, rises to the level of a constitutional violation.
The Eighth Amendment protects convicted prisoners from “cruel and unusual
punishments.” U.S. Const. amend. VIII. The United States Supreme Court has held that
deliberate indifference to serious medical needs of prisoners may constitute the unnecessary and
wanton infliction of pain proscribed by the Eighth Amendment. See Estelle v. Gamble, 429 U.S.
97, 104–05 (1976); Brooks v. Celeste, 39 F.3d 125, 127 (6th Cir. 1994).
Plaintiff alleges that he was taken off of his pain medication on December 4, 2020 and
told to buy pain relievers from the canteen. The medical records attached to the Complaint show
that Plaintiff had neck surgery in 2019 and that, since arriving at KSR in January 2020,
Defendant Lyons had prescribed Plaintiff a number of different medications for his chronic neck
pain, including prescription pain medication and muscle relaxers, all of which he claimed did not
work.1 See DN 1-2 at 19–20. On September 21, 2020, he reported to KSR Health Services that
his pain medicines were “‘not helping anymore and [were] hurting my stomac[h].’” Id. at 105.
On September 28, 2020, Defendant Lyons saw Plaintiff, who reported “the medications:
baclofen, nortriptyline, Relafen, Cymbalta and now Zanaflex are not helping [with neck pain].”
At that time, he refused an increase in Cymbalta, stating, “‘I really don’t want to take it.’”2
Defendant Lyons discontinued his prescription for Duloxetine (generic for Cymbalta) and
prescribed Tylenol and Ibuprofen. Id. at 109.

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The KSR medical notes also document that Plaintiff was known for drug-seeking behavior, id. at 138, and that he
had refused to take prescribed the pain medications Nortriptyline and Cymbalta despite being advised of the need to
stay on these medications long enough to reach therapeutic levels. Id. at 45, 64, 109.

2

Cymbalta is prescribed for, among other things, chronic pain. See www.drugs.com.

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According to a December 23, 2020, medical note, Plaintiff stated that he had received no
pain medication since December 3. The note documents that Plaintiff “has been on both
Ibuprofen and Tylenol” and that these medications “should be available for him to purchase from
the canteen as he is not on the indigent list. No further action is required at this time.” DN 1-2 at
137. The medical records, however, show that Plaintiff was no longer receiving Ibuprofen and
Tylenol via prescription, but his prescription for analgesic ointment was renewed on December
23, 2020, three days before his September 2020 prescription was due to expire. He also was
prescribed Zanaflex, a muscle relaxer, on December 21, 2020. DN 1-2 at 145.
Plaintiff does not allege that he cannot buy pain medication from the canteen. In fact, his
Complaint indicates that he has been buying pain medication from the canteen. See DN 1 at 4-5
(“[I have] been suffering without any pain meds since Dec. 4 but what I buy from Canteen[.]”).
Plaintiff, therefore, fails to state an Eighth Amendment claim related to having to buy medicine
from the canteen.
To the extent that Plaintiff is alleging an Eighth Amendment claim because of continued
pain in his neck that has not been alleviated by Defendant Lyons’s treatment, his claim also fails.
As the voluminous records attached to his Complaint show, Plaintiff has received continued care
from Defendant Lyons for his neck pain. For example, in 2020, he saw Defendant Lyons for his
neck at least five times: on January 14, when he was prescribed Baclofen and Nortriptyline
(DN 1-2 at 19-20); February 11, when he was prescribed Topamax (id. at 28-29); March 17,
when his prescription for Nabumetone (generic for Relafen, an NSAID) was discontinued due to
“elevated creat[ine]” and changed to Tylenol (id. at 38-39); June 17, when his prescription for
Nortriptyline was cancelled and he was put on Tizanidine (Zanaflex) and Duloxetine (Cymbalta)
(id. at 56, 60-61, 64); and September 28, when Cymbalta was discontinued because Plaintiff did

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not want to take it (id. at 109-11).
The Sixth Circuit has noted that, in the context of deliberate-indifference claims, “we
distinguish between cases where the complaint alleges a complete denial of medical care and
those cases where the claim is that a prisoner received inadequate medical treatment.” Westlake
v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976). Where a prisoner alleges only that the medical
care he received was inadequate, “federal courts are generally reluctant to second guess medical
judgments.” Id. “A plaintiff must also show that his claim involves more than a difference of
opinion between the plaintiff and a doctor regarding the plaintiff’s diagnosis and treatment.”
Wilson v. Smith, No. 3:15-CV-P456-CRS, 2015 WL 6870142, at *4 (W.D. Ky. Nov. 6, 2015)
(citing Westlake, 537 F.2d at 860, n.5). Plaintiff thus fails to state a claim for deliberate
indifference to a serious medical need related to either having to buy over-the-counter medicine
or as to the inadequacy of Defendant Lyons’s treatment.
Nor do Plaintiff’s allegations about the discontinuation of his muscle relaxer prescription
show that he was denied treatment. Instead, Plaintiff alleges that his prescription for a muscle
relaxer is being discontinued because he refuses to see Defendant Lyons.3 He states:
The reason for stoping my meds is because I [won’t] have contact with “Dr. Lyons”
the doctor who I’m “Sueing” they forcing me to be in contact with her or be cut off
all my meds and I explain I’m currently proceeding an outside case on the “Dr.
Lyons” who they want me to see and I [won’t] out of fear of retallyation and
problems.
DN 1 at 5.
The fact that Plaintiff was willing to let his prescription lapse rather than see Defendant
Lyons does not state an Eighth Amendment claim. A prison cannot be expected to provide a

3

A “Medical Response” form dated May 18, 2021 and attached to the Complaint states that Defendant Lyons would
need to re-evaluate Plaintiff before renewing his prescription for Zanaflex. DN 1-2 at 183.

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different healthcare provider simply because a prisoner requests one. Plaintiff “has no
constitutional right to choose his doctor[.]” Brittenham v. Dinsa, No. CIVA 10-10257, 2010 WL
1576842, at *2 (E.D. Mich. Apr. 20, 2010); see also Simms v. Neil, No. 08-1346RMB, 2008 WL
1924873, at *3 (D.N.J. Apr. 29, 2008) (“An inmate has no constitutional right to a medical
practitioner of his choice[.]”) (citations omitted). Nor does the Constitution provide inmates
with “unqualified access to healthcare,” Hudson v. McMillian, 503 U.S. 1, 9 (1992), or a right to
see a doctor other than ones they’ve sued, Stephen v. Tilestone, No. 2:20-CV-1841 KJN P, 2020
WL 5642363, at *4 (E.D. Cal. Sept. 22, 2020) (“The fact that prison officials required plaintiff to
continue being seen by a doctor whom plaintiff had sued fails to state a cognizable Eighth
Amendment claim.”). The Court, therefore, finds that Plaintiff has not stated a claim for the
alleged discontinuation of his prescription for a muscle relaxer.
B. Retaliation claim
Plaintiff explains that the reason that he will not see Defendant Lyons for treatment is
that he fears retaliation for having brought a lawsuit against her. A retaliation claim requires
“actual injury, rather than a speculative fear of injury[.]” Freeman v. Carraway, No. 5:19CVP150-TBR, 2019 WL 6242593, at *3 (W.D. Ky. Nov. 21, 2019); Valley Forge Christian College
v. Ams. United for Separation of Church & State, 454 U.S. 464, 471 (1982). Here, Plaintiff’s
speculative fear of retaliation does not state a retaliation claim. See Ely v. Campbell, 8 F. App’x
472, 473 (6th Cir. 2001) (affirming district court’s dismissal of retaliation claim where pro se
prisoner plaintiff merely speculated “that he might be subjected to retaliation for filing his suit”).
C. Allegations related to grievance
Finally, the Complaint also contains an explanation of difficulties Plaintiff experienced
trying to get a response to a grievance. DN 1 at 4. These difficulties do not appear to have

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anything to do with Defendant Lyons, and Plaintiff does not allege that they do. Nor has
Plaintiff provided any factual enhancement to allow the Court to ascertain whether the claims are
cognizable. In any event, “the denial of or failure to act upon an inmate’s grievance does not, by
itself, subject a prison official to liability.” Nation v. White, No. 5:20-CV-P104-BJB, 2021 WL
768132, at *3 (W.D. Ky. Feb. 26, 2021).
III. CONCLUSION
For the foregoing reasons, the Court, by separate Order, will dismiss this lawsuit.
Date:

November 19, 2021

cc:

Plaintiff, pro se
Defendant
B213.009

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