Odom v. Hiland et al

Filing 10

MEMORANDUM OPINION by Senior Judge Thomas B. Russell on 8/8/13; For the reasons set forth, the Court will dismiss the action. cc:Plaintiff(pro se) (ERH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT PADUCAH
GLENN D. ODOM, II

PLAINTIFF

v.

CIVIL ACTION NO. 5:13CV-P29-R

DR. STEVE HILAND et al.

DEFENDANTS
MEMORANDUM OPINION

Plaintiff Glenn D. Odom, II, filed the instant pro se 28 U.S.C. § 1983 action proceeding
in forma pauperis. This matter is before the Court on initial review pursuant to 28 U.S.C.
§ 1915A and McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997). Upon review, the Court
will dismiss the action.
I.
Plaintiff is an inmate at the Kentucky State Penitentiary (KSP). He sues the following
KSP personnel: Dr. Steve Hiland; John Wood, a nurse supervisor; Terri Jones, a registered
nurse; Duke Pettit, the Deputy Warden of Programs; Skyla Grief, the “Grievance
Coordinator/Program Director/Chaplin/Unit Administrator”; Randy White, Warden; and Bob
Wilkerson, ARPN. He sues Defendants Hiland, Wood, and Wilkerson in their individual and
official capacities; Defendants Jones and Grief in their individual capacities only; and
Defendants Pettit and White in their official capacities only.
Plaintiff alleges that he filed a medical request on November 19, 2012, to be pulled out of
his segregation cell for an examination of his “fractured finger (damaged ligament)” by
Defendant Hiland. The response directed him to stop the doctor on his segregation round. He
later attempted to stop Defendant Wilkerson but Wilkerson “refused to pull plaintiff out for an
examination and carelessly stated ‘its arthritis’ as [he] rudely walked away.” Plaintiff again

requested the finger to be examined on December 1, 2012. On December 20, 2012, he again
stopped Defendants Hiland and Wilkerson to examine his finger. They “asked plaintiff when did
the fracture occur? When plaintiff stated ‘it was beat with a master lock in Feb. 2011’ Dr.
Hiland clearly laughed at plaintiff loudly and rudely, then APRN Wilkerson joined in the
laughter as they walked off.”
Plaintiff states that he filed a grievance to which Defendant Wood responded “Dr. looked
at finger [through the cell door - solid steel] . . . .” (Brackets and ellipses by Plaintiff.) Plaintiff
states that he appealed the grievance response but that Defendant Grief “trashed the grievance.”
Plaintiff inquired about the grievance appeal numerous times, but Defendant Grief responded
that no grievance had been received regarding Plaintiff’s finger, although Plaintiff copied the
appeal and mailed it. Plaintiff complained to the Warden and Ombudsman about missing
grievance appeals, and the Ombudsman responded that no grievance appeal had been received.
Plaintiff further states that Defendant Grief “kept plaintiff on grievance restriction since 2011 for
absolutely no logic reason other then to obstruct litigation.”
Plaintiff states that Defendants Hiland and Wood have “allowed inmates to die with their
‘pull no seg. inmates out for examinations’ policy.” He states that Defendant Hiland is allowed
to do as he pleases and “has the most prior bad acts out of all M.D.’s in the Commonwealth of
Kentucky.” He states that his finger “obviously needs surgery.” He has requested “to pay for a
private exam from a private physician but Dep. Warden Duke Pettit and medical defendants has
given plaintiff the opportunity to use ‘the prison’s’ private doctor.” He has requested “to pay, in
advance, all expenses to receive an exam from a hand/bone specialist with an x-ray machine on
site as this prison does not have one.” He states that he is “afraid” of KSP’s private doctor.

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Plaintiff also states that Defendants Wood and Hiland no longer allow segregation
inmates to receive Tylenol, Tums, aspirin, or any over-the-counter medications. He states that
Defendants Wilkerson and Hiland are refusing Plaintiff a “much needed blood test.” He states,
“Strangely, seg. inmates must receive blood pressure checks and be weighed. If they refuse the
cell extraction team is activated and the inmate is ‘stripped-out.’” He states that Defendants
Hiland and Wilkerson “also switch up their ‘seg round’ days and sneak through at 5:30 am
without announcing ‘Doctor on the walk.’” He “has continuously begged for examinations for
all seg. inmates when a ‘serious medical need’ is addressed. All defendants refuse to treat seg.
inmates like a human being.”
As relief, Plaintiff seeks compensatory and punitive damages and injunctive and
declaratory relief.
Plaintiff attaches numerous exhibits to his complaint. The attachments show that the
injury to Plaintiff’s finger occurred on February 11, 2011, while he was incarcerated in Indiana.
His attachments also show that at the time of the injury he received two x-rays and treatment.
Plaintiff’s attachments also include a progress note signed by Registered Nurse Terri Jones
stating, “MD LOOKED AT FINGER. NO NEW ORDERS FROM MD.” To the extent Plaintiff
attaches grievances and other documents concerning issues not alleged in the complaint, the
Court notes that Plaintiff has filed other lawsuits in this Court concerning other medical
conditions and issues. The Court does not consider any issues not raised in the complaint to be
part of the instant action.

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II.
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 the court 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. See 28 U.S.C. §§ 1915A(b)(1), (2); McGore, 114 F.3d at 604.
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)). “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550 U.S. at 556). “[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, 561 F.3d at 488 (quoting
Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995)). “A pleading that
offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will
not do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557).
Although this Court recognizes that pro se pleadings are to be held to a less stringent
standard than formal pleadings drafted by lawyers, Haines v. Kerner, 404 U.S. 519, 520-21
(1972); Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991), “[o]ur duty to be ‘less stringent’
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with pro se complaints does not require us to conjure up unpled allegations.” McDonald v. Hall,
610 F.2d 16, 19 (1st Cir. 1979) (citation omitted). And this Court is not required to create a
claim for Plaintiff. Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975).
To command otherwise would require the 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.
A.

Official-capacity claims for damages
“Official-capacity suits . . . ‘generally represent [] another way of pleading an action

against an entity of which an officer is an agent.’” Kentucky v. Graham, 473 U.S. 159, 166
(1985) (quoting Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 691 n.55 (1978)).
Because all of the Defendants are employees or officers of the Commonwealth of Kentucky, the
claims brought against them in their official capacities are deemed claims against the
Commonwealth of Kentucky. See Kentucky v. Graham, 473 U.S. at 166. State officials sued in
their official capacities for money damages are not “persons” subject to suit under § 1983. Will
v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). Thus, because Plaintiff seeks money
damages from state officers or employees in their official capacities, he fails to allege cognizable
claims under § 1983. Additionally, the Eleventh Amendment acts as a bar to claims for
monetary damages against these Defendants in their official capacities. Kentucky v. Graham,
473 U.S. at 169. Therefore, Plaintiff’s official-capacity claims against Defendants Hiland,
Wood, Wilkerson, Pettit, and White will be dismissed for failure to state a claim upon which

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relief can be granted and for seeking monetary relief from Defendants who are immune from
such relief.
B.

Grievance handling
The only allegations against Defendants Grief and White concern the handling of

Plaintiff’s grievances and grievance appeals. However, there is “no constitutionally protected
due process interest in unfettered access to a prison grievance procedure.” Walker v. Mich.
Dep’t of Corr., 128 F. App’x 441, 445 (6th Cir. 2005); Young v. Gundy, 30 F. App’x 568, 569-70
(6th Cir. 2002). If the prison provides a grievance process, violations of its procedures do not
rise to the level of a federal constitutional right. Spencer v. Moore, 638 F. Supp. 315, 316 (E.D.
Mo. 1986). “The ‘denial of administrative grievances or the failure to act’ by prison officials
does not subject supervisors to liability under § 1983.” Grinter v. Knight, 532 F.3d 567, 576 (6th
Cir. 2008) (quoting Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)). “The mere denial of a
prisoner’s grievance states no claim of constitutional dimension.” Alder v. Corr. Med. Servs.,
73 F. App’x 839, 841 (6th Cir. 2003). Therefore, Plaintiff does not state a claim under § 1983
concerning the handling of his grievances or appeals, and his claims against Defendants Grief
and White (to the extent Plaintiff seeks injunctive relief regarding this claim) will be dismissed.
C.

Defendant Jones
Plaintiff’s only statement in the complaint concerning the actions of Defendant Jones is

in his prayer for relief, where he states that he requests the Court to award injunctive relief in the
form of “Prohibit Terri Jones from threatening disciplinary if an inmate expresses medical
concerns.” Threats of discipline are not sufficient to state a violation of the Eighth
Amendment’s cruel and unusual punishments clause. Ivey v. Wilson, 832 F.2d 950, 954-55 (6th
Cir. 1987); see also Searcy v. Gardner, No. 3:07-0361, 2008 U.S. Dist. LEXIS 10312, at *4
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(M.D. Tenn. Feb. 11, 2008) (“A claim under 42 U.S.C. § 1983 cannot be based on mere threats,
abusive language, racial slurs, or verbal harassment by prison officials.”). Therefore, Plaintiff’s
claim against Defendant Jones will be dismissed for failure to state a claim upon which relief
may be granted.
D.

Denial of medical treatment
“A prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to an

inmate violates the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 828 (1994). In
order for a claim to rise to the level of an Eighth Amendment violation, “a prison official must
know of and disregard an excessive risk to inmate health or safety; the official must both be
aware of the 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 837-38. Therefore, to prove a prison
official is liable under the Eighth Amendment for denial of medical treatment, the prisoner must
first demonstrate the existence of a “sufficiently serious” medical need. Miller v. Calhoun Cnty.,
408 F.3d 803, 812 (6th Cir. 2005). The prisoner must also demonstrate that the prison official
subjectively possessed “‘a sufficiently culpable state of mind in denying medical care.’” Id.
(quoting Farmer, 511 U.S. at 834).
The objective component of an Eighth Amendment deliberate-indifference claim requires
the existence of a sufficiently serious medical need. Turner v. City of Taylor, 412 F.3d 629, 646
(6th Cir. 2005). The objective component is governed by “contemporary standards of decency.”
Hudson v. McMillian, 503 U.S. 1, 8 (1992). “[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.” Id. at 9 (citations omitted). It is unclear whether Plaintiff’s injured
finger would satisfy the standard for a sufficiently serious medical need.
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However, the Court need not determine this issue on initial review. “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. 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 U.S. App. LEXIS 28322, at *2 (6th Cir. Oct. 29, 1996). In Estelle v. Gamble, 429
U.S. 97 (1976), 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.” Id. at 107.
Based on Plaintiff’s own assertions and attachments to the complaint, he received two xrays and treatment at the time of his injury and shortly thereafter while incarcerated in Indiana.
He was not referred to a hand specialist or recommended for surgery at that time. Moreover,
according to Plaintiff’s allegations and attachments to the complaint, medical staff at KSP
“looked at” his finger, inquired when he received the injury, observed that it was arthritis, and
did not find treatment necessary. While Plaintiff contends that he should be sent to a hand
specialist and receive surgery, such disagreement constitutes a dispute over the adequacy of
treatment, which does not give rise to an Eighth Amendment deliberate-indifference claim.
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Westlake v. Lucas, 537 F.2d at 860 n.5. Moreover, Plaintiff states that KSP officials have given
him the opportunity to see the prison’s private doctor, but he wants to see an outside doctor of
his own choosing. 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.
In addition, Plaintiff complains that segregation inmates are no longer being allowed to
receive Tylenol, Tums, and other over-the-counter drugs, he has been refused a blood test,
segregation inmates are required to receive blood pressure checks and be weighed, and
Defendants Hiland and Wilkerson do not announce themselves when they make rounds in
segregation. These claims fail because Plaintiff does not state a sufficiently serious medical
need associated with these conditions or what injury he may have suffered due to these
conditions. Horn by Parks v. Madison Cnty. Fiscal Court, 22 F.3d 653, 659 (6th Cir. 1994)
(finding that “a violation of a federally secured right is remediable in damages only upon proof
that the violation proximately caused injury”); see also Memphis Cmty. Sch. Dist. v. Stachura,
477 U.S. 299, 308 (1986). Moreover, to the extent he seeks to bring any claims on behalf of
other prisoners in segregation, Plaintiff does not have standing to bring a claim on another’s
behalf. See, e.g., Shepherd v. Wellman, 313 F.3d 963, 970 (6th Cir. 2002) (“pro se” means to
appear for one’s self; thus, one person may not appear on another person’s behalf in the other’s
cause).
Accordingly, all claims against Defendants Hiland, Wood, Pettit, and Wilkerson
concerning his medical treatment will be dismissed for failure to state claim upon which relief
may be granted.

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E.

Spoiled milk
Finally, Plaintiff makes a reference in the complaint to a statement by the non-defendant

Ombudsman stating that there was “no record of spoiled milk issues on file from you.” Plaintiff
includes in his attachments copies of grievances he filed concerning a one-time incident when he
was served spoiled milk and the guard did not replace his food tray. While it is not clear whether
Plaintiff is bringing a claim concerning the spoiled milk, a one-time incident of being served
spoiled milk or one-time denial of a meal is not sufficient to give rise to an Eighth Amendment
claim. Beene v. Rasseki, No. 3:10-0285, 2010 U.S. Dist. LEXIS 52379, *5, 20 (M.D. Tenn. May
27, 2010) (prisoner’s claim that he was not allowed to trade spoiled milk for fresh milk not
sufficient to state Eighth Amendment claim); see also Cunningham v. Jones, 667 F.2d 565, 566
(6th Cir. 1982) (per curiam) (holding that a prisoner served only one meal per day, over fifteen
days, that provided sufficient nutrition did not violate the Eighth Amendment); Waring v.
Meachum, 175 F. Supp. 2d 230, 240-41 (D. Conn. 2001) (finding no Eighth Amendment claim
where inmate missed two meals and there was no indication that future meals were missed).
Therefore, any claim based on being served spoiled milk will be dismissed for failure to state a
claim.
For the foregoing reasons, the Court will dismiss this action by separate Order.
Date:

August 7, 2013

cc:
Plaintiff, pro se
4413.010

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