Fisher v. A.C.H. Medical
Filing
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MEMORANDUM OPINION by Chief Judge Joseph H. McKinley, Jr. The Court will dismiss this action on initial screening for failure to state a claim upon which relief may be granted. cc: Plaintiff, pro se; Defendant (ERH)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT OWENSBORO
EDWARD GENE FISHER
v.
PLAINTIFF
CIVIL ACTION NO. 4:15CV-P141-JHM
A.C.H. MEDICAL FACILITY
DEFENDANT
MEMORANDUM OPINION
Plaintiff Edward Gene Fisher, a prisoner proceeding in forma pauperis, filed a pro se
complaint pursuant to 42 U.S.C. § 1983 (DN 1). This matter is before the Court for initial
review of the complaint pursuant to 28 U.S.C. § 1915A and McGore v. Wrigglesworth,
114 F.3d 601 (6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007).
For the reasons that follow, the Court will dismiss this action.
I. SUMMARY OF CLAIMS
Plaintiff identifies the Defendant in this action as A.C.H. Medical Facility (ACH) at
Daviess County Detention Center (DCDC).1 He seeks monetary and punitive damages against
Defendant.
Plaintiff states that he arrived at the DCDC on December 17, 2014, and in January his
ears started to bother him. He states that after putting in a sick-call form, he was seen by
“medical” and “[t]hey flushed [his] ears out and gave [him] benydrel for them whicth did not
help.” According to Plaintiff, he submitted another sick-call form and “they flushed [his] ears
out and put [him] on ear drops witch did not help.” On June 8, 2015, according to Plaintiff,
“after multible visits to medical,” he filed a grievance. He states that he has “filed multapule
sick calls after that and they have noglected to do anything about [his] Illness and it is still going
According to the DCDC website, www.daviesscojail.org., the institution “has contracted with
Advanced Correctional Healthcare to provide 24/7 on-site medical, mental health and dental care to
incarcerated inmates.”
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on with [his] ears and after all of this neglect [he is] on psyc meds that KCPC and the Doctor at
LSCC percribed [him].” According to Plaintiff, the “medical facility at DCDC” stopped giving
him the “psyc meds” and no one can tell him why. Plaintiff continues as follows:
I am going through mintle distress and amotional stress and they have naglected
me on giving me a meds to help my the doctor seen me and put me in suaside
whatch for no reason and they still have not gave me any meds to help with my
illness and my ears have not gotten any better and all they tell me is not to get
water in them but will not give me any type of ear protection for when I take a
shower and my hearing is getting worse then when I arrived hear. thay just will
not help me in any way and I am scared if something is not done about it I might
lose my hearing and medical keeps neglecting me but tells me to put in a sick call
form so that thay can charge my account money for telling me that my ear has
fluid and it will get better and that is all that thay will do for me and send me back
to my cell.
II. STANDARD OF REVIEW
When a prisoner initiates a civil action seeking redress from a governmental entity,
officer, or employee, the trial court must review the complaint and dismiss the complaint, or any
portion of it, if it determines that the complaint 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. 28 U.S.C. § 1915A; McGore v. Wrigglesworth, 114 F.3d at 604. A claim is
legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams,
90 U.S. 319, 325 (1989). The trial court may, therefore, dismiss a claim as frivolous where it is
based on an indisputably meritless legal theory or where the factual contentions are clearly
baseless. Id. at 327. In order to survive dismissal for failure to state a claim, “a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
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“[A] district court must (1) view the complaint in the light most favorable to the plaintiff
and (2) take all well-pleaded factual allegations as true.” Tackett v. M & G Polymers, USA, LLC,
561 F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009)
(citations omitted)). “But the district court need not accept a ‘bare assertion of legal
conclusions.’” Tackett v. M & G Polymers, USA, LLC, 561 F.3d at 488 (quoting Columbia
Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995)). The court’s duty “does not
require [it] to conjure up unpled allegations,” McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979),
or to create a claim for a plaintiff. Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169
(6th Cir. 1975). To command otherwise would require the district court “to explore exhaustively
all potential claims of a pro se plaintiff, [and] would also transform the district court from its
legitimate advisory role to the improper role of an advocate seeking out the strongest arguments
and most successful strategies for a party.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278
(4th Cir. 1985).
III. ANALYSIS
The sole Defendant in this action, ACH, is not a governmental entity. Plaintiff has sued
Defendant ACH in its official-capacity. The Sixth Circuit has held that “[i]t is clear that a
private entity which contracts with the state to perform a traditional state function such as
providing medical services to prison inmates may be sued under § 1983 as one acting ‘under
color of state law.’” Hicks v. Frey, 992 F.2d 1450, 1458 (6th Cir. 1993), abrogation on other
grounds recognized by Warren v. Prison Health Servs., Inc., 576 F. App’x 545, 559 (6th Cir.
2014). Defendant ACH has apparently contracted with the DCDC to provide medical services to
the inmates. Thus, on initial review of the complaint, the Court presumes that ACH is a state
actor.
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When a § 1983 claim is made against a municipality, this Court must analyze two distinct
issues: 1) whether Plaintiff’s harm was caused by a constitutional violation; and 2) if so, whether
the municipality is responsible for that violation. Collins v. City of Harker Heights, Tex., 503
U.S. 115, 120 (1992). The same municipal-liability analysis applies to § 1983 claims against a
private corporation like Defendant ACH. See Street v. Corr. Corp. of Am., 102 F.3d 810, 818
(6th Cir. 1996) (“‘Monell involved a municipal corporation, but every circuit to consider the
issue has extended the holding to private corporations as well.’”) (quoting Harvey v. Harvey, 949
F. 2d 1127, 1129 (11th Cir. 1992). Liability must be based on a policy or custom of the
contracted private entity or “the inadequacy of [an employee's] training.” Id. at 817; Starcher v.
Corr. Med. Sys., Inc., 7 F. App’x 459, 465 (6th Cir. 2001) (“CMS’s [Correctional Medical
Systems, Inc.,] liability must also be premised on some policy that caused a deprivation of
[plaintiff’s] Eighth Amendment rights.”).
Plaintiff’s complaint fails to satisfy the first requirement of a municipal-liability claim,
i.e., showing that Plaintiff’s harm was caused by a constitutional violation. In the instant case,
Plaintiff alleges that Defendant “has neglected to do any thing about [his] Illness and it is still
going on.” The Eighth Amendment’s proscription against cruel and unusual punishment
prohibits prison officials from deliberate indifference to an inmate’s serious medical needs since
such indifference constitutes the “unnecessary and wanton infliction of pain.” Estelle v. Gamble,
429 U.S. 97, 104 (1976); see also Flanory v. Bonn, 604 F.3d 249, 253 (6th Cir. 2010) (“The
Eighth Amendment prohibits prison officials from unnecessarily and wantonly inflicting pain on
prisoners by acting with deliberate indifference to prisoners’ serious medical needs.”) (quotations
omitted). “In order to state a cognizable claim, a prisoner must allege acts or omissions
sufficiently harmful to evidence deliberate indifference to serious medical needs.” Estelle v.
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Gamble, 429 U.S. at 106; see also Terrance v. Northville Reg’l Psychiatric Hosp., 286 F.3d 834,
843 (6th Cir. 2002) (“It is well settled that the deliberate indifference to serious medical needs of
prisoners constitutes the unnecessary and wanton infliction of pain . . . proscribed by the Eighth
Amendment.”) (quotations omitted).
An Eighth Amendment claim consists of both an objective and subjective component.
Farmer v. Brennan, 511 U.S. 825, 834 (1994); Hudson v. McMillian, 503 U.S. 1, 8 (1992). The
objective component requires that the medical need be sufficiently serious. Rhodes v. Chapman,
452 U.S. 337, 345-47 (1981); Hunt v. Reynolds, 974 F.2d 734, 735 (6th Cir. 1992). This
component is contextually driven and is responsive to “contemporary standards of decency.”
Hudson v. McMillian, 503 U.S. at 8. The subjective component requires that the official’s
conduct be deliberately indifferent to Plaintiff’s needs. Farmer v. Brennan, 511 U.S. at 834;
Wilson v. Seiter, 501 U.S. 294, 297-304 (1991); Hunt v. Reynolds, 974 F.2d at 735. Deliberate
indifference is a “state of mind more blameworthy than negligence.” Farmer v. Brennan,
511 U.S. at 835-36.
“To satisfy the subjective component, the plaintiff must allege facts which, if true, would
show that the official being sued subjectively perceived facts from which to infer substantial risk
to the prisoner, that he did in fact draw the inference, and that he then disregarded that risk.”
Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001) (citing Farmer v. Brennan, 511 U.S. at
837). “The requirement that the official have subjectively perceived a risk of harm and then
disregarded it is meant to prevent the constitutionalization of medical malpractice claims; thus, a
plaintiff alleging deliberate indifference must show more than negligence or the misdiagnosis of
an ailment.” Id. (citing Estelle v. Gamble, 429 U.S. at 106; Farmer v. Brennan, 511 U.S. at 835).
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Further, not every claim of inadequate medical treatment states an Eighth Amendment
violation. Estelle v. Gamble, 429 U.S. at 105. Neither negligent medical care nor delay in
medical care constitutes a constitutional violation without deliberate indifference resulting in
substantial harm. Acord v. Brown, No. 93-2083, 1994 WL 679365, at *2 (6th Cir. Dec. 5, 1994)
(“Accidents, mistakes, negligence and medical malpractice are not constitutional violations
merely because the victim is a prisoner. Neither negligent medical care nor delay in medical
care constitutes a violation of the Eighth Amendment unless there has been deliberate
indifference, which results in substantial harm.”); Mendoza v. Lynaugh, 989 F.2d 191, 195
(5th Cir. 1993) (“Succinctly stated, negligent medical care does not constitute a valid section
1983 claim. Further, delay in medical care can only constitute an Eighth Amendment violation if
there has been deliberate indifference, which results in substantial harm.”).
Plaintiff’s problem lies with the subjective component of his alleged Eighth Amendment
claim, i.e., “‘a sufficiently culpable state of mind in denying medical care.’” Miller v. Calhoun
Cty., 408 F.3d 803, 812 (6th Cir. 2005) (quoting Farmer v. Brennan, 511 U.S. at 834). “[O]nly
those deprivations denying ‘the minimal civilized measure of life’s necessities’ are sufficiently
grave to form the basis of an Eighth Amendment violation.” Hudson v. McMillian, 503 U.S. at 9
(citations omitted). “Where 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 which sound in state tort law.” Westlake v. Lucas, 537
F.2d 857, 860 n.5 (6th Cir. 1976). A court generally will not find deliberate indifference when
some level of medical care has been offered to the inmate. Christy v. Robinson, 216 F. Supp. 2d
398, 413-14 (D.N.J. 2002). Mere disagreement over medical treatment cannot give rise to a
constitutional claim of deliberate indifference. Durham v. Nu’Man, 97 F.3d 862, 869 (6th Cir.
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1996). Thus, a difference in medical judgment between an inmate and prison medical personnel
regarding the appropriate diagnosis or treatment is not enough to state a deliberate-indifference
claim. Ward v. Smith, No. 95-6666, 1996 WL 627724, at *2 (6th Cir. Oct. 29, 1996). The
Supreme Court stated: “the question whether an X-ray or additional diagnostic techniques or
forms of treatment is indicated is a classic example of a matter for medical judgment. A medical
decision not to order an x-ray, or like measures, does not represent cruel and unusual
punishment.” Estelle v. Gamble, 429 U.S. at 107.
Based on Plaintiff’s own assertions in the complaint, Plaintiff received medical treatment
for his complaints of problems with his ears. He states that he was seen by the medical staff on
multiple occasions concerning this condition, his ears were flushed out, and he was given
Benadryl and ear drops. He was advised by the medical staff that he should avoid getting water
in his ears and that his ears would get better. With regard to the medication for Plaintiff’s
psychiatric problem, Plaintiff indicates that he was seen by a doctor and put on suicide watch.
Plaintiff contends that the treatment he has received is insufficient. However, disagreements
over the adequacy of treatment do not give rise to the level of an Eighth Amendment deliberateindifference claim. Westlake v. Lucas, 537 F.2d at 860 n.5. Prisoners are not entitled to
“unqualified access to health care.” Hudson v. McMillian, 503 U.S. at 8. While Plaintiff may
disagree with the treatment offered, such disagreement does not amount to a constitutional claim.
Plaintiff’s complaint also fails to satisfy the second requirement of a municipal-liability
claim, i.e., showing that Plaintiff’s harm was caused by the municipality. “[A] municipality
cannot be held liable solely because it employs a tortfeasor --or, in other words, a municipality
cannot be held liable under § 1983 on a respondeat superior theory.” Monell v. Dep’t of Soc.
Servs. of N.Y., 436 U.S. 658, 691 (1978) “The ‘official policy’ requirement was intended to
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distinguish acts of the municipality from acts of employees of the municipality, and thereby make
clear that municipal liability is limited to action for which the municipality is actually
responsible.” Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986) (emphasis in original). To
demonstrate municipal liability, a plaintiff “must (1) identify the municipal policy or custom, (2)
connect the policy to the municipality, and (3) show that his particular injury was incurred due to
execution of that policy.” Alkire v. Irving, 330 F.3d 802, 815 (6th Cir. 2003) (citing Garner v.
Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir. 1993)).
A municipality cannot be held responsible for a constitutional deprivation unless there is
a direct causal link between a municipal policy or custom and the alleged constitutional
deprivation. Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. at 694; see also Molton v. City of
Cleveland, 839 F.2d 240, 246 (6th Cir. 1988) (finding that the plaintiff failed to “adduce[]
evidence of a definitive City policy, custom, or usage which was an affirmative link, the moving
force that animated the behavior-the acts of commission or omission-of the police officers that
resulted in the constitutional violations alleged.”). Simply stated, “a plaintiff must ‘identify the
policy, connect the policy to the [county] itself and show that the particular injury was incurred
because of the execution of that policy.’” Garner v. Memphis Police Dep’t, 8 F.3d 358, 364
(6th Cir. 1993) (quoting Coogan v. City of Wixom, 820 F.2d 170, 176 (6th Cir. 1987), overruled
on other grounds by Frantz v. Vill. of Bradford, 245 F.3d 869 (6th Cir. 2001)). The policy or
custom “must be ‘the moving force of the constitutional violation’ in order to establish the
liability of a government body under § 1983.” Searcy v. City of Dayton, 38 F.3d 282, 286
(6th Cir. 1994) (quoting Polk Cty. v. Dodson, 454 U.S. 312, 326 (1981) (citation omitted)).
In the instant case, Plaintiff has not alleged that Defendant ACH acted pursuant to a
policy or custom in committing the alleged wrong against him. In addition, nothing in the
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complaint demonstrates that the action or inaction of any medical personnel occurred as a result
of any custom or policy implemented or endorsed by Defendant ACH. The complaint, therefore,
fails to establish a basis of liability against Defendant ACH and, therefore, fails to state a
cognizable § 1983 claim.
IV. CONCLUSION
For the foregoing reasons, the Court will dismiss this action pursuant to 28 U.S.C.
§ 1915A(b)(1) for failure to state a claim upon which relief may be granted by separate Order.
Date:
March 9, 2016
cc: Plaintiff, pro se
Defendant
4414.003
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