Guinn v. McEldowney et al

Filing 7

OPINION AND ORDER OF SUMMARY DISMISSAL Signed by District Judge Marianne O. Battani. (KDoa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JASON GUINN,
Plaintiff,
CASE NO. 2:14-CV-13085
HONORABLE MARIANNE O. BATTANI

v.
CAROL MCELDOWNEY and
ALLEGIANCE HEALTH,
Defendants.
_________________________________/

OPINION AND ORDER OF SUMMARY DISMISSAL
I.
The Court has before it Plaintiff Jason Guinn’s pro se civil rights complaint filed
pursuant to 42 U.S.C. § 1983. Plaintiff is a state prisoner currently confined at the
Marquette Branch Prison in Marquette, Michigan. The Court has granted Plaintiff leave to
proceed without prepayment of the filing fee. See 28 U.S.C. § 1915(a). In his complaint,
Plaintiff raises claims of medical malpractice, negligence, and cruel and unusual
punishment with pain and suffering arising from a blood draw while he was in police
custody at a hospital in Jackson, Michigan on March 15, 2013.

Plaintiff names

phlebotomist Carol McEldowney and Allegiance Health Hospital as the defendants in this
action.

He sues them in their personal and official capacities and seeks monetary

damages. Having reviewed the complaint, the Court concludes that Plaintiff fails to state
a claim upon which relief may be granted under 42 U.S.C. § 1983 and dismisses the
complaint. The Court also concludes that an appeal from this decision cannot be taken in
good faith.

II.
Plaintiff has been granted in forma pauperis status. Under the Prison Litigation
Reform Act (“PLRA”), the Court is required to sua sponte dismiss an in forma pauperis
complaint before service upon a defendant if it determines that the action is frivolous or
malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief
against a defendant who is immune from such relief. See 42 U.S.C. § 1997e(c); 28 U.S.C.
§ 1915(e)(2)(B). The Court is similarly required to dismiss a complaint seeking redress
against government entities, officers, and employees which it finds to be 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). A complaint
is frivolous if it lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504
U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 319, 325 (1989).
III.
To state a federal civil rights claim under 42 U.S.C. § 1983, a plaintiff must allege
that (1) he or she was deprived of a right, privilege, or immunity secured by the federal
Constitution or laws of the United States; and (2) the deprivation was caused by a person
acting under color of state law. Flagg Bros. v. Brooks, 436 U.S. 149, 155-57 (1978); Harris
v. Circleville, 583 F.3d 356, 364 (6th Cir. 2009).
A pro se civil rights complaint is construed liberally. Haines v. Kerner, 404 U.S. 519,
520-21 (1972). Nonetheless, Federal Rule of Civil Procedure 8(a) requires that a complaint
set forth “a short and plain statement of the claim showing that the pleader is entitled to
relief,” as well as “a demand for the relief sought.” Fed. R. Civ. P. 8(a)(2), (3). The
purpose of this rule is to “give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
2

(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957) and Fed. R. Civ. P. 8(a)(2)). While this
notice pleading standard does require not require detailed factual allegations, it does
require more than the bare assertion of legal conclusions. Twombly, 550 U.S. at 555. Rule
8 “demands more than an unadorned, the defendant-unlawfully-harmed me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A pleading that offers ‘labels and conclusions’
or ‘a formulaic recitation of the elements of a cause of action will not do.’” Id. (quoting
Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’
devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557). “Factual
allegations must be enough to raise a right to relief above the speculative level on the
assumption that all the allegations in the complaint are true (even if doubtful in fact).”
Twombly, 550 U.S. at 555-56 (citations and footnote omitted).
With these standards in mind, the Court finds that Plaintiff ‘s complaint is subject to
dismissal. As an initial matter, Plaintiff fails to state a claim upon which relief may be
granted as to Allegiance Health because he fails to allege facts demonstrating Allegiance
Health’s involvement in the actions giving rise to the complaint. It is well-settled that a
plaintiff must allege the personal involvement of a defendant to state a civil rights claim
under § 1983. See Monell v. Department of Social Svs., 436 U.S. 658, 691-92 (1978)
(Section 1983 liability cannot be based upon a theory of respondeat superior or vicarious
liability); Everson v. Leis, 556 F.3d 484, 495 (6th Cir. 2009) (same); see also Taylor v.
Michigan Dep’t of Corrections, 69 F.3d 716, 727-28 (6th Cir. 1995) (plaintiff must allege
facts showing that the defendant participated, condoned, encouraged, or knowingly
acquiesced in alleged misconduct to establish liability). Plaintiff has not done so. Any
claims that Allegiance Health failed to supervise an employee, should be vicariously liable
for an employee’s conduct, and/or did not sufficiently respond to the situation is insufficient
3

to state a civil rights claim. See, e.g., Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999);
see also Martin v. Harvey, 14 F. App’x 307, 309 (6th Cir. 2001). Plaintiff also does not
allege facts to show that any injury he suffered is the result of any policy or regulation, or
that any improper conduct arose from the deliberate failure to adequately investigate, train,
or supervise employees. See Ellis v. Cleveland Mun. Sch. Dist., 455 F.3d 690, 700 (6th
Cir. 2006) (setting forth three-part test for such claims). He thus fails to state a claim upon
which relief may be granted under § 1983 as to Allegiance Health.
Plaintiff’s claims against defendant McEldowney are also subject to dismissal.
Plaintiff asserts that defendant McEldowney committed medical malpractice and was
negligent in drawing his blood. It is well-settled, however, that claims of negligence
concerning a prisoner’s medical treatment, i.e. medical malpractice, are not cognizable in
a civil rights action brought pursuant to 42 U.S.C. § 1983. Estelle v. Gamble, 429 U.S. 97,
106 (1976). An “injury caused by negligence does not constitute a deprivation of any
constitutionally-protected interest” and a claim that officials have engaged in negligent
conduct does not state a claim under §1983. Collins v. City of Harker Hgts., 503 U.S. 115,
127-28 (1992); Lewellen v. Metropolitan Gov't. of Nashville & Davidson Co., Tenn., 34 F.3d
345, 348 (6th Cir. 1994). Plaintiff thus fails to state a claim upon which relief may be
granted under § 1983 as to such matters.
The United States Supreme Court has held that “deliberate indifference to serious
medical needs of prisoners constitutes the unnecessary and wanton infliction of pain
proscribed by the Eighth Amendment.”

Estelle, 429 U.S. at 104.

The deliberate

indifference standard requires a prisoner to show that the defendant acted with a reckless
disregard of a known risk of serious harm to the prisoner. Farmer v. Brennan, 511 U.S.
825, 836 (1994). A plaintiff may establish deliberate indifference by a showing of grossly
4

inadequate medical care. Terrance v. Northville Reg. Psych. Hosp., 286 F.3d 834, 843 (6th
Cir. 2002).
Plaintiff makes no such showing. Rather, the report he submitted with his complaint
reveals that defendant McEldowney was attempting to draw his blood at the hospital
pursuant to a police request and/or court order and that Plaintiff was uncooperative and
struggling during the procedure. Plaintiff fails to allege facts to show that defendant
McEldowney was deliberately indifferent to his medical needs under the foregoing
standards or that she was intentionally trying to harm him.
Plaintiff also asserts that defendant McEldowney subjected him to cruel and unusual
punishment and caused him pain and suffering in violation of the Eighth Amendment. To
state such a claim, a prisoner must allege that the offending conduct constitutes an
“unnecessary and unwanton infliction of pain” and that it offends contemporary standards
of decency. Hudson v. McMillian, 503 U.S. 1, 8 (1992); Ingraham v. Wright, 430 U.S. 651,
670 (1977). Such a claim has both an objective and subjective component. Farmer, 511
U.S. at 833; Wilson v. Seiter, 501 U.S. 294, 298 (1991). The objective component of
requires that the pain be serious or concern the deprivation of the “minimal civilized
measure of life’s necessities.” Rhodes v. Chapman, 452 U.S. 337, 347-49 (1981). “Not
every unpleasant experience a prisoner might endure while incarcerated constitutes cruel
and unusual punishment within the meaning of the Eighth Amendment.” Ivey v. Wilson,
832 F.2d 950, 954 (6th Cir. 1987). The subjective component requires that the offending
conduct be intentional or deliberately indifferent. Estelle, 429 U.S. at 104-05; see also
Wilson, 501 U.S. at 301-03.
Plaintiff fails to allege facts to support such an Eighth Amendment claim. Plaintiff
fails to meet the objective component because he does not allege facts to show that his
5

pain was serious and/or concerned the deprivation of the minimal civilized measure of life’s
necessities. Blood draws are considered routine. See Schmerber v. California, 384 U.S.
757, 771 n. 13 (1966) (citing Breithaupt v. Abram, 352 U.S. 432, 436 (1957) (a blood test”
would not be considered offensive even by the most delicate”); United States v. Hook, 471
F.3d 766, 775 (7th Cir. 2006) (“the government’s desire for identifying information along
with the minimal pain and discomfort accompanying a blood draw take the DNA Act outside
of the ambit of cruel and unusual punishment”); Nicholas v. Goord, 430 F.3d 652, 676 (2d
Cir. 2005) (the drawing of blood is “quite a minor intrusion, of the sort that ordinary citizens
voluntarily submit to routinely for medical purposes”).
Recognizing this fact, several courts have ruled that a forced blood draw, even when
performed poorly and causing injury, is not the sort of conduct and/or harm that rises to the
level of a Eighth Amendment violation. See Ali v. McAnany, 262 F. App’x 443, 446 (3d Cir.
2008) (upholding dismissal of claims against defendants who needed four attempts to draw
prisoner’s blood); Lavite v. Wexford Health Sys., No. 13-CV-00576-JPG, 2013 WL
3776288, *2-3 (S.D. Ill. July 17, 2013) (ruling that an Eighth Amendment claim “cannot be
predicated on the de minimis use of force that would result from a mere blood draw”);
Thompson v. CCA-LAC Medical Dept., No. 1:06-CV-104, 2007 WL 390356, *5 (D. Vt. Jan.
30, 2007) (citing cases and ruling that nurse’s conduct in mistakenly drawing blood and
poking prisoner numerous times, and resulting harm to prisoner’s arms and hands, “did not
cause the sort of degeneration or extreme pain” required for an Eighth Amendment
violation); Johnson v. Illinois Dept. of Corr., No. 04-222-MJR, 2006 WL 741218, *6 (S.D.
Ill. March 22, 2006) (dismissing prisoner’s Eighth Amendment claim against defendant who
stuck him several times with a needle “nowhere near his veins” during blood draw). This
Court agrees with the reasoning of those decisions. While being stuck with a needle during
6

multiple blood draw attempts can be painful, such conduct is not the type of unnecessary
and wanton infliction of pain that constitutes cruel and unusual punishment.
Plaintiff also fails to meet the subjective component of the test because he does not
allege facts to show that defendant McEldowney acted intentionally or with deliberate
indifference. Rather, the record before the Court indicates that defendant McEldowney was
drawing his blood pursuant to a police request and/or a court order, that Plaintiff was
uncooperative and struggling during the procedure, and that McEldowney was attempting
to draw Plaintiff’s blood, not trying to intentionally cause him pain or otherwise injure him.
Any discomfort endured by Plaintiff during the blood draw was de minimis – and largely
resulted from his own uncooperative behavior. Consequently, Plaintiff fails to state an
Eighth Amendment claim. His complaint must therefore be dismissed.
IV.
For the reasons stated, the Court concludes that Plaintiff fails to state a claim upon
which relief may be granted under 42 U.S.C. § 1983 in his complaint. Accordingly, the
Court DISMISSES WITH PREJUDICE the civil rights complaint. The Court also concludes
that an appeal from this order cannot be taken in good faith. See 28 U.S.C. § 1915(a)(3);
Coppedge v. United States, 369 U.S. 438, 445 (1962).
IT IS SO ORDERED.
Date: September 10, 2014

s/Marianne O. Battani
MARIANNE O. BATTANI
United States District Judge

7

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing Order was served upon counsel of record via the Court's ECF System to their respective
email addresses or First Class U.S. mail to the non-ECF participants on September 10, 2014.
s/ Kay Doaks
Case Manager

8