Hall v. Dodman et al

Filing 8

ORDER DISMISSING CASE. Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DENNIS HALL,
Plaintiff,

CASE NO. 13-13859

v.
RICHARD M. DODMAN, R.N.,
and WILLIAM C. BORGERDING, D.O.,

Hon. Paul D. Borman
United States District Court

Defendants.
___________________________________/
ORDER OF DISMISSAL
I. INTRODUCTION
Plaintiff Dennis Hall, a state prisoner at Oaks Correctional Facility in Manistee,
Michigan, recently filed a pro se civil rights complaint under 42 U.S.C. § 1983. The
defendants are Richard M. Dodman, R.N., and William C. Borgerding, D.O. The
complaint and exhibits allege that, in 2007, state officials granted Plaintiff a medical
accommodation so that he could wear prescription athletic shoes, which he claimed to
need as a result of past injuries to his feet, as well as, foot and ankle deformities. The
shoes were issued in 2008, and the medical accommodation was re-issued every six
months thereafter. On June 14, 2011, however, defendant Dodman declined to re-issue
the medical accommodation, and defendant Borgerding subsequently upheld Dodman’s
decision.

Plaintiff claims that the defendants caused him to suffer unnecessary and wanton

infliction of pain in violation of the Eighth Amendment to the United States Constitution.
He asserts that defendant Dodman misrepresented his pre-existing and current medical
conditions and that defendant Borgerding denied his request to have the medical
accommodation renewed without personally examining him or ordering alternative
treatment. Plaintiff seeks money damages and an order compelling the defendants to reissue his medical accommodation for athletic shoes.

II. LEGAL STANDARD
Due to Plaintiff’s indigence, the Court has granted him permission to proceed
without prepayment of the fees and costs for this action. When screening an indigent
prisoner’s complaint, a federal district court
must examine both [28 U.S.C.] § 1915(e)(2) and [28 U.S.C.] § 1915A. If
the civil action seeks redress from a governmental entity, officer, or
employee, the district court must dismiss the complaint, or any portion of
the complaint, which (a) is frivolous, malicious, or fails to state a claim
upon which relief may be granted, or (b) seeks monetary relief from a
defendant who is immune from monetary relief. 28 U.S.C. §§ 1915(e)(2),
1915A.
Smith v. Campbell, 250 F.3d 1032, 1036 (6th Cir. 2001).1 A complaint is frivolous if it

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28 U.S.C. § 1915(e)(2) reads:

(2) 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-(A) the allegation of poverty is untrue; or
(B) the action or appeal-2

lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).
“To state a claim under 42 U.S.C. § 1983, a plaintiff must set forth facts that, when
construed favorably, establish (1) the deprivation of a right secured by the Constitution or
laws of the United States (2) caused by a person acting under the color of state law.”
Sigley v. Parma Heights, 437 F.3d 527, 533 (6th Cir. 2006). While a complaint need not

(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.
Section 1915A of Title 28, United States Code, reads:
(a) Screening.--The court shall review, before docketing, if feasible
or, in any event, as soon as practicable after docketing, a complaint in a
civil action in which a prisoner seeks redress from a governmental entity or
officer or employee of a governmental entity.
(b) Grounds for dismissal.--On review, the court shall identify
cognizable claims or dismiss the complaint, or any portion of the complaint,
if the complaint-(1) is frivolous, malicious, or fails to state a claim upon which
relief may be granted; or
(2) seeks monetary relief from a defendant who is immune
from such relief.
(c) Definition.--As used in this section, the term “prisoner” means
any person incarcerated or detained in any facility who is accused of,
convicted of, sentenced for, or adjudicated delinquent for, violations of
criminal law or the terms and conditions of parole, probation, pretrial
release, or diversionary program.
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contain “detailed factual allegations,” the “[f]actual allegations must be enough to raise a
right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007). “So, to survive scrutiny under §§ 1915A(b)(1) and 1915(e)(2)(B)(ii), ‘a
complaint must contain sufficient factual matter, accepted as true, to state a claim to relief
that is plausible on its face.’” Hill v. Lappin, 630 F.3d. 468, 471 (6th Cir. 2010) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “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.” Iqbal, 556 U.S. at 678.
III. DISCUSSION
A. Legal Framework
Plaintiff brings his claim against state officials for alleged violations of the Eighth
Amendment to the United States Constitution. A prison official
violates the Eighth Amendment when she exhibits “deliberate indifference
to [the] serious medical needs” of a prisoner. Estelle [v. Gamble, 429 U.S.
97, 104 (1976)]. An Eighth Amendment claim has an objective component
and a subjective component. Comstock v. McCrary, 273 F.3d 693, 702 (6th
Cir. 2001). The objective component requires a plaintiff to prove a
“sufficiently serious” medical need, and the subjective component requires
a plaintiff to prove that the doctors had a “sufficiently culpable state of
mind.” Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 128 L. Ed.
2d 811 (1994) (internal quotation marks omitted).
Santiago v. Ringle, et al., __ F.3d __, __, No. 12-4075, 2013 WL 5911217, at *3 (6th
Nov. 5, 2013).
A prison official’s interruption of a prescribed plan of treatment can manifest
deliberate indifference and constitute a constitutional violation, id. at *4, but
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to demonstrate that a medical need is “sufficiently serious” under the objective
component of an Eighth Amendment claim, the plaintiff must show that his or her
medical need
is “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) (internal quotation marks omitted). If the plaintiff’s claim,
however, is based on “the prison’s failure to treat a condition adequately, or
where the prisoner’s affliction is seemingly minor or non-obvious,”
Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 898 (6th Cir. 2004), the
plaintiff must “place verifying medical evidence in the record to establish
the detrimental effect of the delay in medical treatment,” Napier v. Madison
Cnty., 238 F.3d 739, 742 (6th Cir. 2001) (internal quotation marks omitted).
Id.
The subjective component of an Eighth Amendment claim
requires a plaintiff to prove that the doctors had a “sufficiently culpable
state of mind,” equivalent to criminal recklessness. Farmer, 511 U.S. at
834, 839–40 (internal quotation marks omitted). To be liable, the doctors
need not act “for the very purpose of causing harm or with knowledge that
harm will result,” id. at 835, but they must act with more than mere
negligence, Miller v. Calhoun Cnty., 408 F.3d 803, 813 (6th Cir. 2005) . . . .
[A] prison doctor “has a duty to do more than simply provide some
treatment to a prisoner who has serious medical needs; instead, the doctor
must provide medical treatment to the patient without consciously exposing
the patient to an excessive risk of serious harm.” LeMarbe v. Wisneski,
266 F.3d 429, 439 (6th Cir. 2001).
Id. at *5.
B. Application
Plaintiff’s complaint and exhibits indicate that a regional medical director
approved new athletic shoes for Plaintiff in 2008 and that the shoes were ordered on May

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21, 2008. In subsequent years, Plaintiff asked for, and received, new shoes to replace his
worn out shoes. However, on June 14, 2011, defendant Dodman physically examined
Plaintiff after Plaintiff asked to have his shoes replaced. Dodman found:
no deformities, no redness, swelling, or discoloration. No corns, callouses.
No open areas or wounds. Skin pink, warm and dry. No numbness or
tingling. Foot arches intact . . . . Has a healed scar on left great toe. Shoes
are in good condition at this time. Has current accommodation and detail
written by nurse.
Compl., Attach. C, page 1.
On June 16, 2011, Kyle L. Sperling, PA, determined that Plaintiff had ankle
deformities, which appeared to be congenital, and an old gunshot injury on his left foot.
Mr. Sperling noted that Plaintiff had a wide base toe box with high arches, but that
Plaintiff was able to ambulate with a normal, stable gait while wearing a pair of old tennis
shoes. Mr. Sterling opined that, if Plaintiff had to wear standard state shoes, dermal
breakdown would eventually occur. Mr. Sterling’s plan of action was to request a special
tennis shoe accommodation for Plaintiff but to wait for the regional medical director’s
decision on whether Plaintiff qualified for the shoe accommodation. Id., page 2.
On September 9, 2011, defendant Borgerding reviewed Plaintiff’s request for a
medical accommodation and reiterated Mr. Sterling’s comments regarding Plaintiff’s
ankle deformities, gunshot injury, wide toe box, and high arches. But instead of
approving Plaintiff’s request for an athletic shoe accommodation, Dr. Borgerding
deferred the request, noting that Plaintiff was able to play basketball. Id., page 3.
Finally, on September 23, 2011, defendant Dodman interviewed Plaintiff in
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connection with Plaintiff’s Step I Grievance on the issue. Dodman denied Plaintiff’s
grievance and instructed Plaintiff to purchase his tennis shoes from an approved vendor.
Dodman noted that, following the interview, Plaintiff walked briskly out of the health
clinic with a normal, stable gait. Compl., Attach. A, page 2.
The facts set forth in the complaint and exhibits indicate that Plaintiff did not have
a serious medical need. His gunshot wound apparently had healed, and he was able to
walk normally, wearing an old pair of tennis shoes. His condition did not mandate
treatment; nor was it so obvious that even a lay person would have easily recognized the
need for medical attention.
Plaintiff also has not shown that the defendants had a culpable state of mind.
Defendant Dodman examined Plaintiff and gave him the option of buying the type of
shoes that Plaintiff thought he needed. Defendant Borgerding subsequently assessed
Plaintiff’s situation and determined that a medical accommodation was unnecessary.
Although Plaintiff alleges that defendant Dodman intentionally misrepresented Plaintiff’s
injuries and deformities and arbitrarily denied Plaintiff’s request for a medical
accommodation, “federal courts are generally reluctant to second guess medical
judgments . . . .” Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976). Plaintiff’s
allegations establish nothing more than a difference of opinion about whether a medical
accommodation for athletic shoes was needed. Whether a different form of treatment was
necessary “is a classic example of a matter for medical judgment,” and a medical decision
not to order certain measures “does not represent cruel and unusual punishment.” Estelle
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v. Gamble, 429 U.S. at 107. A mere “difference in opinion between a prisoner and the
medical staff about treatment does not state a cause of action.” Kirkham v. Wilkinson,
101 F. App’x 628, 630 (6th Cir. 2004).
IV. CONCLUSION
Plaintiff has failed to establish the objective and subjective prongs of an Eighth
Amendment claim. The complaint therefore lacks an arguable basis in law and fails to
state a plausible claim for which relief may be granted. Consequently, the complaint is
summarily dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii) and 28 U.S.C. §
1915A(b)(1). An appeal from this decision would be frivolous and could not be taken in
good faith. 28 U.S.C. § 1915(a)(3); Coppedge v. United States, 369 U.S. 438, 443-45
(1962); McGore v. Wrigglesworth, 114 F.3d 601, 610-11 (6th Cir. 1997), overruled on
other grounds by LaFountain v. Harry, 716 F.3d 944, 951 (6th Cir. 2013).
SO ORDERED.
s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: December 23, 2013

CERTIFICATE 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 on
December 23, 2013.

s/Deborah Tofil
Case Manager
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