Langford v. Prima et al

Filing 36

ORDER Granting Defendants Motions to Dismiss 31 18 24 and Dismissing Complaint Against Defendants Nurse Unknown Rick and Unknown Person from the Bureau of Health Care Services. Signed by District Judge Victoria A. Roberts. (LVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT LANGFORD,
Plaintiff,
Case No. 17-cv-11862
v.
HONORABLE. VICTORIA A. ROBERTS
MUZIRMAN PRIMA, ET AL,
Defendants.
_________________________________/
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS (Doc. # 18, Doc. # 24,
Doc. # 31) AND DISMISSING COMPLAINT AGAINST DEFENDANTS NURSE
UNKNOWN RICK AND UNKNOWN PERSON FROM THE BUREAU OF HEALTH
CARE SERVICES
Robert Langford (“Langford”) brings this Prisoner Civil Rights claim against
several defendants (collectively, “Defendants”) under 42 U.S.C. § 1983 for violations of
his First and Eighth Amendment rights. Langford claims that by inadequately treating his
ingrown toenail, Defendants showed deliberate indifference in violation of the Eighth
Amendment. Langford also claims that he received a misconduct ticket in retaliation for
his decision not to allow a prison nurse to operate on his toenail, in violation of the First
Amendment.
Three groups of Defendants filed separate motions to dismiss. After the
Defendants filed their motions to dismiss, the Court ordered Langford to either file an
amended complaint or respond to all three motions. Langford filed a response; only one
reply brief was filed. No motions to dismiss were filed on behalf of Defendant Unknown
Rick, a nurse, and an Unknown Person from the Bureau of Health Care Services
(“Unknown Person”).

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For the reasons that follow, all three motions are GRANTED; Langford’s claims
are DISMISSED WITH PREJUDICE against all Defendants.
I. BACKGROUND
A. Facts of the Case
i.

Medical Treatment For Ingrown Toenail

Langford alleges that on September 16, 2016, he requested medical attention for
an ingrown toenail. Three days later, he was notified that he had an appointment to both
have his toenail examined and to use the toenail clippers. He met with “Nurse Unknown
Rick,” who allowed him to use the toenail clippers. Nurse Rick said he would schedule
Langford to see a doctor. Langford did not get notice of an appointment, so he sent
another request on September 25, 2016 for an appointment, indicating he was in pain
and had difficulty walking. In response to this request, he was scheduled to see Nurse
Cynthia Brzyski (“Brzyski”) on September 28, 2016. That appointment was canceled. He
sent another request, which resulted in him seeing Nurse Lisa Wurmlinger
(“Wurmlinger”) on October 7, 2016; she indicated that she would schedule Langford to
see a doctor. [Complaint, Pg. 6-7].
On October 14, 2016, Langford was seen by Nurse Practioner Prima Muzirman
(“Muzirman”), who advised him that he should have the toenail removed. Langford
asked Muzirman if she had such experience; she said she had never removed a toenail.
Langford told Muzirman that he preferred a doctor to remove his toenail. Id. at 7.
Between November 2016 and February 2017, Langford alleges that he made
several requests concerning his toenail and went to several appointments, only to be

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told they were cancelled when he arrived. Notably, he says he sent a request stating
that he needed to see a physician to remove his toenail because he was not going to let
an inexperienced medical provider perform the procedure. He admits he declined a few
appointments to have a medical provider assess his toenail or to use the toenail
clippers, either because his toenail was already assessed, or because he did not need
to use clippers. Id. at 7-8.
After sending a letter inquiring about an appointment for his toenail, Langford
alleges receiving a letter from an Unknown Person on February 8, 2017. That letter
indicated that they were looking into his concern. Id. at 8.
ii.

Prisoner Misconduct Ticket

On January 25, 2017, Langford alleges that he was given a pass to see
Muzirman, who examined Langford’s ingrown toenail and said it was due to a fungus.
He asked her why she kept calling him to see her when he was not going to let her
perform any procedures on his toenail. Langford alleges that Muzirman became angry,
and told him to get out of her office. Muzirman told a custody officer that Langford yelled
at her, and the custody officer – according to Langford – told Muzirman that Langford
could be written up for insolence. Langford admits he did raise his voice, but he did not
threaten or intimidate Muzirman. He told the custody officer that the only issue was that
he did not want Muzirman to work on his toenail. Id. at 9-10.
The next day, the control center issued Langford a Class II misconduct for
insolence. Langford unsuccessfully appealed the ticket. Langford later pled guilty to the
misconduct. Id.

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iii.

Langford’s Grievances For Ingrown Toenail

Langford alleges that on September 30, 2016, he filed a Step I grievance stating
that he had been seen by a nurse for his ingrown toenail, but had not been seen by a
“medical provider.” On October 21, 2016, Langford received a Step I grievance
response from Nurse K. Hamblin (“Hamblin”), which was reviewed by Nurse C. Ives
(“Ives”), denying his grievance. Id. at 8.
On October 26, 2016, Langford says he filed a Step II grievance appeal,
indicating that although Muzirman offered to remove his toenail, he refused and said he
wanted a physician to perform the procedure. Langford claims he received the Step II
grievance appeal back with no receipt. He then filed a Step III grievance appeal on
October 29, 2016, stating the same issues as set forth in his Step II grievance appeal.
He also indicated that he never received a response to his Step II appeal. Id. at 8-9.
Langford allegedly received a letter from the office of legal affairs, dated October
31, 2016, stating that he did not included his Step II response as required, or provide a
reason why it was not included. He responded to this letter saying that he did not
receive a response to his Step II appeal, which is why he did not include a copy of it in
his Step III appeal. Langford sent another letter to Richard D. Russell (“Russell”) in the
grievance section of the office of legal affairs, stating he had sent a Step III appeal, but
had not received a response to it. He allegedly never received a response to that letter.
Id. at 9.

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II. LEGAL STANDARD
A motion to dismiss under Fed. R. Civ. P. 12(b)(6) tests the legal sufficiency of
the complaint. RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th
Cir. 1996). A court must “construe the complaint in the light most favorable to the
plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the
plaintiff.” Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). A complaint must
contain sufficient factual matter to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A claim is plausible on its face “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 complaint “must contain something more ... than ... a statement of facts that
merely creates a suspicion [of] a legally cognizable right of action.” Twombly, 550 U.S.
at 555 (citations omitted). Indeed, “a plaintiff's obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Id.; see also Iqbal, 556 U.S.
at 678 (“Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”). Moreover, the Court is “not bound to accept as
true a legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678 (citation
omitted).

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III. ANALYSIS
A. The Court Need Not Address Exhaustion of Administrative Remedies
All Defendants argue that because Langford did not exhaust administrative
remedies within the Michigan Department of Corrections (“MDOC”), his complaint
should be dismissed without prejudice. The MDOC grievance procedure requires
prisoners to file a Step I, Step II, and Step III grievance form. Defendants attach
affidavits and grievance records to support their position that Langford did not exhaust
through the required steps.
Langford argues that he attempted to exhaust MDOC procedures, but grievance
appeals were returned to him without receipts or instructions. To support his position,
Langford attaches carbon copies of his grievance forms, as well as letters he wrote to
the grievance coordinator.
Under the Prisoner Litigation Reform Act, a prisoner cannot bring an action
challenging his prison conditions unless he exhausts administrative remedies. 42 USC §
1997e(a). “This requirement is not jurisdictional; rather, exhaustion is an affirmative
defense that must be pleaded and proved by the defendants.” Mattox v. Edelman, 851
F.3d 583, 590 (6th Cir. 2017). “In the event that a claim is, on its face, frivolous,
malicious, [or] fails to state a claim upon which relief can be granted, … the court may
dismiss the underlying claim without first requiring the exhaustion of administrative
remedies.” 42 USC § 1997e(c)(2).
Due to the poor quality of the attachments, the Court cannot determine whether
Langford properly exhausted remedies. Nevertheless, as explained in detail below,

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Langford’s deliberate indifference and retaliation claims are frivolous and can be
dismissed on their merits, so “the Court need not consider whether [Langford’s] claims
are exhausted.” Laster v. Pramstaller, 2011 U.S. Dist. LEXIS 84281, *6 (E.D. Mich. Feb.
24, 2011). See also Williams v. Moore, 34 Fed. Appx. 475, 476, (6th Cir. 2002)
(“exhaustion does not need to be considered where the claim fails to state a claim upon
which relief can be granted”).
B. Claims Dismissed Against Defendants Not Alleged to Have Been
Personally Involved In The Alleged Violations
Langford requests money damages for alleged constitutional violations, suing
Defendants in their individual capacity. Several Defendants argue that because
Langford fails to allege their personal involvement in the facts underlying his
constitutional violation, his claims against them should be dismissed. The Court agrees.
For Defendants to be held liable for alleged § 1983 violations, Langford has to
allege “that they did more than play a passive role in the alleged violation…” Salehpour
v. Univ. of Tenn., 159 F.3d 199, 206 (6th Cir. 1998) “A plaintiff must allege facts, not
simply conclusions, that show that an individual was personally involved in the
deprivation of his civil rights. Liability under § 1983 must be based on the personal
involvement of the defendant.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.
1998).
Langford lists Defendants Sabrina Aiken (“Aiken”), Taylor Adams (“Adams”), and
Albercook as defendants in the caption of his complaint, but fails to allege any facts
about them in the complaint itself. Because Langford “must plead that each

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Government-official defendant, through the official’s own individual actions, has violated
the Constitution,” and failed to do so for Aiken, Adams, and Albercook, the claims
against them are dismissed. Iqbal, 556 U.S. at 676.
Langford names two nurses, Brzyski and Wurmlinger, as Defendants. Langford
does not allege that Bryzski took any action. Instead, he alleges that an appointment
with Brzyski was scheduled and canceled. This does not even begin to suggest her
personal involvement in the deprivation of Langford’s civil rights. Barren, 152 F.3d at
1194. Langford alleges that Wurmlinger said she would schedule him to see a doctor
concerning his ingrown toenail. Since Langford’s case is based on an alleged lack of
medical attention for his ingrown toenail, Wurmlinger’s actions in furtherance of this
medical attention would certainly not constitute personal involvement in denying him
medical care. Id. The claims against nurses Brzyski and Wurmlinger are dismissed.
Some Defendants are alleged to have taken what would be considered passive
roles in Langford’s alleged constitutional violations. Defendants Hamlin, Ives, and
Russell responded to grievance forms and letters from Langford. These actions do not
rise to the level of involvement necessary to claim that they violated Langford’s
constitutional rights. See Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)
(concluding that the denial of administrative grievances do not constitute allegations that
the defendants “directly participated, encouraged, authorized or acquiesced in the
claimed” constitutional violations). Thus, the claims against Hamlin, Ives, and Russell
are dismissed.
Although Langford alleges facts against the remaining Defendants, because his
constitutional claims fail on their merits, they are dismissed.
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C. Langford’s Allegations Do Not Constitute an Eighth Amendment
Violation
Langford alleges that Defendants were deliberately indifferent to his medical
needs concerning his ingrown toenail, in violation of his Eighth Amendment right against
cruel and unusual punishment.
Two groups of Defendants argue that Langford’s allegations do not support an
Eighth Amendment violation. Wurmlinger, Brzyski, Hamblin, Ives, Russell, and Lee
McRoberts argue that even if an ingrown toenail constitutes a sufficiently serious
medical condition, Langford was not denied medical care. To the contrary, they say
Langford refused medical care, which as a matter of law does not establish an Eighth
Amendment claim. Similarly, Albercook and Muzirman argue that because Langford
admits that he refused medical treatment, he fails to allege the requisite subjective
component of a deliberate indifference claim.
A prison official violates the Eighth Amendment when two requirements are met.
Farmer v. Brennan, 511 U.S. 825, 834 (1994). “First, the deprivation alleged must be,
objectively, sufficiently serious.” Id. (internal quotations and citations omitted). Second,
“a prison official must have a sufficiently culpable state of mind.” Id. (internal quotations
and citations omitted). “In prison-conditions cases that state of mind is one of deliberate
indifference to inmate health or safety.” Id. (internal quotations and citations omitted).
i.

An Ingrown Toenail Is Not A Serious Medical Need

A medical need is sufficiently serious if it has been diagnosed by a physician as
mandating treatment, or if it is so obvious that even a layperson would easily recognize
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the need for medical attention. Whitfield v. Whalen, 2009 U.S. Dist. LEXIS 127120, *7-9
(W.D. Mich. Jul. 20, 2009). Several courts have held that an ingrown toenail does not
constitute a sufficient serious medical need. See Boardley v. First Corr. Med., 2004 U.S.
Dist. LEXIS 25918 *7 (D. Del. Dec. 21, 2004) (finding that a delay in performing surgery
on an ingrown toenail does not amount to a serious injury as required by § 1983);
McKaye v. Toombs, 1991 U.S. App. LEXIS 7043, *3 (6th Cir. 1991) (affirming a district
court’s adoption of a magistrate judge’s recommendation that a prison nurse’s refusal to
provide immediate medical attention to an ingrown toenail did not constitute deliberate
indifference to a serious medical need); Hess v. Tulsa County Sheriff's Office, 2009 U.S.
Dist. LEXIS 36799, *6 (N.D. Okla. Apr. 27, 2009) (“the Court finds that an ingrown
toenail is not sufficiently serious to satisfy the objective component.”); Marchwicz v.
O'Mara, 2011 U.S. Dist. LEXIS 132895 *10 (D.N.H. Nov. 16, 2011) (“the court is unable
to find a single case in which an ingrown toenail was deemed by a federal court to
constitute a ‘serious medical need’ in a § 1983 action asserting inadequate medical
care”). As a matter of law, Langford fails to allege that his ingrown toenail is a serious
medical need.
ii.

Prison Officials Did Not Act With Deliberate Indifference

A prison official cannot be found liable for deliberate indifference “unless the
official knows of and disregards an excessive risk to inmate health or safety.” Farmer
511 U.S. at 837. “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). “[D]ifferences in
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judgment between an inmate and prison medical personnel regarding the appropriate
medical diagnoses or treatment are not enough to state a deliberate indifference claim.”
Campbell v. Engelsgjerd, 2008 U.S. Dist. LEXIS 113726, *15 (W.D. Mich. Aug. 29,
2009), report and recommendation adopted, 2008 U.S. Dist. LEXIS 74857 (W.D. Mich.
Sept. 24, 2008).
Langford does not allege that he was denied medical care. Instead, he alleges
that he saw Muzirman on two occasions, but refused to allow her to remove his toenail
because he wanted a physician to do it. Further, he alleges that he did not attend
several scheduled appointments because he believed that his toenail had already been
assessed, or that he did not need to use toenail clippers. Langford clearly disagreed
with the appropriate treatment for his ingrown toenail, and does not state enough facts
to state a claim of deliberate indifference. Id.
“[Langford’s] allegations about the treatment he received for an ingrown toenail
do not state a claim for deliberate indifference to his serious medical needs under the
Eighth [Amendment].” Tucker v. Rudd, 2017 U.S. Dist. LEXIS 56780, *5 (M.D. Tenn.
Apr. 13, 2017).
Langford’s deliberate indifference claim is dismissed.
D. Langford’s Allegations Do Not State A Claim For Retaliation
Langford alleges that Muzirman retaliated against him by writing him a
misconduct ticket after he refused to allow her to remove his toenail. Defendants argue
that this claim fails because refusal of medical treatment is not protected conduct under
a First Amendment retaliation claim.
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A retaliation claim consists of three elements: “(1) the plaintiff engaged in
protected conduct; (2) an adverse action was taken against the plaintiff that would deter
a person of ordinary firmness from continuing to engage in that conduct; and (3) there is
a causal connection between elements one and two – that is, the adverse action was
motivated at least in part by the plaintiff's protected conduct.” Thaddeus-X v. Blatter,
175 F.3d 378, 394 (6th Cir. 1999). A plaintiff has the burden to show that his protected
conduct was a motivating factor behind the adverse action. Id. at 399.
Langford claims that he received the misconduct ticket in retaliation for because
he refused medical treatment. However, refusing medical treatment is not protected
conduct for the purposes of a First Amendment retaliation claim. See Carter v. Ayala,
2014 U.S. Dist. LEXIS 130395 *9-10 (W.D. Mich. Aug. 20, 2014) (finding that the right to
refuse medical treatment is not protected conduct under a First Amendment retaliation
claim, although it is protected conduct under the Fourteenth Amendment), report and
recommendation adopted, 2014 U.S. Dist. LEXIS 129911.
Langford’s retaliation claim is dismissed.
E. Claims Against Nurse Rick and Unknown Person Are Dismissed
The Court can, on its own, dismiss a § 1983 action brought with respect to prison
conditions if the Court finds the action is frivolous or fails to state a claim upon which
relief can be granted. 42 USC § 1997e(c)(2). As detailed above, Langford fails to state a
claim for deliberate indifference and retaliation. Thus, even though no motions were
filed on behalf of Nurse Rick and Unknown Person, the Court will sua sponte dismiss
Langford’s claims against them.

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IV. CONCLUSION
Defendants’ motions to dismiss are GRANTED. Langford’s claims are
DISMISSED WITH PREJUDICE.
IT IS ORDERED.
S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: February 1, 2018

The undersigned certifies that a copy of this document
was served on the attorneys of record and Robert
Langford by electronic means or U.S. Mail on February
1, 2018.
s/Linda Vertriest
Deputy Clerk

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