Hill v. Walton et al

Filing 12

OPINION and ORDER of Summary Dismissal and Declining Certificate of Appealability. Signed by District Judge Thomas L. Ludington. (SGam)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
TYRONE HILL,
Plaintiff,
Case Number 1:12-CV-13999
HONORABLE THOMAS L. LUDINGTON
UNITED STATES DISTRICT JUDGE

v.
J.S. WALTON, et. al.

Defendants,
__________________________________________/
OPINION AND ORDER OF SUMMARY DISMISSAL
Plaintiff Tyrone Hill, presently confined at the McKean Federal Correctional Institution in
Bradford, Pennsylvania, filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983. His
complaint will be dismissed because Plaintiff has failed to state a claim upon which relief can be
granted.
I
The Court initially notes that Plaintiff’s § 1983 lawsuit alleges that his constitutional rights
were violated by the warden and a mid-level practitioner (MLP) at the Federal Correctional
Institution in Milan, Michigan (FCI-Milan). But § 1983 does not apply to actions against federal
officials, because they are not state actors acting under color of state law. However, a plaintiff may
file suit in federal court for damages arising from the violation of constitutional rights by persons
acting under the color of federal law. See Bivens v. Six Unknown Named Agents of Federal Bureau
of Narcotics, 403 U.S. 388, 395 (1971). Because Plaintiff is alleging that his constitutional rights
were violated by persons acting under color of federal law, the plaintiff’s § 1983 complaint is
properly construed as a Bivens action. See, e.g., Shehee v. Luttrell, 199 F.3d 295, 298 (6th Cir.
1999).

In this matter, Plaintiff was allowed to proceed without prepayment of fees. See 28 § U.S.C.
1915(a); McGore v. Wrigglesworth, 114 F. 3d 601, 604 (6th Cir. 1997). But § 1915(e)(2)(B) states:
Notwithstanding any filing fee, or any portion thereof, that may have been
paid, the court shall dismiss the case at any time if the court determines that:
(B) the action or appeal:
(I) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from
such relief.
28 U.S.C. § 1915(e)(2)(B). These screening provisions are applicable to Bivens actions brought by
federal inmates. See, e.g., Plunk v. Givens, 234 F. 3d 1128, 1129 (10th Cir. 2000); see also Diaz v.
Van Norman, 351 F. Supp. 2d 679, 680–81 (E.D. Mich. 2005).
A complaint is frivolous if it lacks an arguable basis in law or fact. Neitzke v. Williams, 490
U.S. 319, 325 (1989); see also Denton v. Hernandez, 504 U.S. 25, 32 (1992). “A complaint lacks
an arguable basis in law or fact if it . . . is based on legal theories that are indisputably meritless.”
Brown v. Bargery, 207 F. 3d 863, 866 (6th Cir. 2000)(citing Neitzke, 490 U.S. at 327–28). A
complaint fails to state a claim “if it appears beyond a doubt that the plaintiff can prove no set of
facts in support of his claim that would entitle him to relief.” Brown, 207 F. 3d at 867. Sua sponte
dismissal is appropriate if the complaint lacks an arguable basis when filed. McGore, 114 F. 3d at
612; Goodell v. Anthony, 157 F. Supp. 2d 796, 799 (E.D. Mich. 2001).
A pro se litigant’s complaint is to be construed liberally, Middleton v. McGinnis, 860 F.
Supp. 391, 392 ( E.D. Mich.1994)(citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)); that is, they
are held to a “less stringent standard” than complaints drafted by attorneys. Haines v. Kerner, 404
U.S. 519, 520 (1972). Such complaints, however, must plead facts sufficient to show a legal wrong
has been committed from which the plaintiff may be granted relief. Fed. R. Civ. P. 12(b); Dekoven

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v. Bell, 140 F. Supp. 2d 748, 755 (E.D. Mich. 2001).
II
On August 12, 2011, Plaintiff injured his left wrist while playing basketball at the Federal
Correctional Institution in Milan, Michigan. Plaintiff was taken to the medical unit, where he was
examined by Defendant Restituto, an MLP at FCI-Milan. Restituto informed Plaintiff that he had
sprained his left wrist and further informed Plaintiff that had he broken his wrist, he would know
it. Restituto wrapped Plaintiff’s hand in an ace bandage and advised him to relax, keep ice on his
hand, elevate his wrist, and stay awake with the ace bandage on. Restituto, however, did not order
an X-ray of Plaintiff’s wrist. Other documentation that Plaintiff has attached to his complaint
indicates that he was advised to return to the medical unit if his condition did not improve.

Plaintiff was transferred to the McKean Correctional Institution, where he went to the health
service and spoke with a Rebecca Miller about his wrist. Miller ordered an X-ray of the wrist, which
revealed a left scaphoid fracture. A cast was applied, although the condition may require surgery.
Plaintiff contends that the medical staff at FCI-Milan were negligent in failing to order an
X-ray of his wrist, exhibiting medical indifference to his medical problem. He now seeks monetary
damages.
III
Under the Eighth Amendment to the U.S. Constitution, prison officials must provide
adequate medical care to prisoners. Farmer v. Brennan, 511 U.S. 825, 832 (1994); Brooks v.
Celeste, 39 F. 3d 125, 127 (6th Cir. 1994). The Eighth Amendment prohibition against unnecessary
and wanton infliction of pain is violated when there is deliberate indifference to the serious medical

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needs of an inmate. Hicks v. Grey, 992 F. 2d 1450, 1454–55 (6th Cir. 1993).
The test to determine whether prison or jail officials have been deliberately indifferent to an
inmate’s serious medical needs, in violation of the Eighth Amendment, has an objective and
subjective component. Napier v. Madison County, Ky., 238 F. 3d 739, 742 (6th Cir. 2001)(citing
to Brown v. Bargery, 207 F. 3d at 867). The objective component requires an inmate to show that
the alleged deprivation is sufficiently serious, and poses a substantial risk of serious harm. The
subjective component is satisfied if the inmate shows that prison officials had a “sufficiently
culpable state of mind.” Napier, 238 F. 3d at 742 (citing to Farmer, 511 U.S. at 834). In other
words, to prove deliberate indifference, a plaintiff must show that the defendant “knew of, yet
disregarded, an excessive risk to his health.” Logan v. Clarke, 119 F. 3d 647, 649 (8th Cir. 1997).
This Court notes that “[t]he Due Process Clause is simply not implicated by a negligent act
of an official causing unintended loss of or injury to life, liberty, or property.” Daniels v. Williams,
474 U.S. 327, 328 (1986)(emphasis original); see also Lewellen v. Metropolitan Government of
Nashville and Davidson County, Tenn., 34 F. 3d 345, 348 (6th Cir. 1994)(“[I]t is now firmly settled
that injury caused by negligence does not constitute a ‘deprivation’ of any constitutionally protected
interest.”). Likewise, a complaint that a doctor has been negligent in diagnosing or treating a
medical condition of a prisoner does not state a valid claim of medical mistreatment under the
Eighth Amendment. Estelle v. Gamble, 429 U.S. at 106; Sanderfer v. Nichols, 62 F. 3d 151, 154
(6th Cir. 1995). “[M]edical malpractice does not become a constitutional violation merely because
the victim is a prisoner.” Estelle, 429 U.S. at 106. Thus, an Eighth Amendment claim of deliberate
indifference must be supported by more than mere negligence. See Harrison v. Ash, 539 F.3d 510,
522 (6th Cir. 2008).

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In the present case, Plaintiff does not allege that the medical staff at FCI-Milan refused to
examine his wrist or offer any medical treatment. Instead, he alleges that the medical staff were
indifferent and negligent for failing to order an X-ray. But the failure by prison personnel to
perform an X-ray or to use additional diagnostic techniques does not constitute cruel and unusual
punishment; it is, at most, medical malpractice. Estelle, 429 U.S. at 107; see also Grose v.
Correctional Medical Services, Inc., 400 F. App’x. 986, 988 (6th Cir. 2010)(unpublished); Durham
v. Nu’Man, 97 F.3d 862, 868 (6th Cir. 1996).
At most, Plaintiff has alleged that Defendants were negligent in treating his broken wrist, and
he has thus failed to state a claim upon which relief can be granted. The Court has no discretion in
permitting plaintiff to amend his complaint to avoid a sua sponte dismissal. McGore, 114 F.3d at
612. “If a complaint falls within the requirements of § 1915(e)(2) when filed, the district court
should sua sponte dismiss the complaint.” Id.
Additionally, the Court certifies that any appeal by plaintiff would be frivolous and not in
good faith. See 28 U.S.C. § 1915(a)(3); Coppedge v. United States, 369 U.S. 438, 445 (1962);
Goodell, 157 F. Supp. 2d at 802.
IV
Accordingly, it is ORDERED that Plaintiff’s complaint, ECF No. 1, is DISMISSED for
failing to state a claim upon which relief can be granted pursuant to § 1915(e)(2)(B).
It is further ORDERED that the Court DECLINES to issue a certificate of appealability.
Dated: April 5, 2013

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge

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PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail, and upon Tyrone Hill #43500-060 at Federal Medical
Center, Devens; P.O. Box 879 Ayer, MA 01432 by first class U.S. mail
on April 5, 2013.
s/Tracy A. Jacobs
TRACY A. JACOBS

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