Walker v. Greiner et al
Filing
4
OPINION and ORDER of Partial Dismissal. Signed by District Judge Denise Page Hood. (LSau)
Case 2:21-cv-12874-DPH-EAS ECF No. 4, PageID.67 Filed 05/04/22 Page 1 of 8
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARCUS L. WALKER,
Case Number: 2:21-cv-12874
HON. DENISE PAGE HOOD
Plaintiff,
v.
MARY GREINER, ET AL.,
Defendants.
/
OPINION AND ORDER OF PARTIAL DISMISSAL
This matter is before the Court on Marcus L. Walker’s pro se civil rights
complaint filed under 42 U.S.C. § 1983. Walker is incarcerated at the Gus Harrison
Correctional Facility. Walker claims that Defendants have denied him medical care in
violation of the Eighth Amendment.
Walker names twenty-one defendants. He seeks monetary and injunctive relief.
For the reasons discussed below, the Court dismisses Defendants Henry Fresnick, Janet
Campbell, Kimberly Korte, Sherman Campbell, and Heidi Washington. The case will
proceed against the remaining Defendants.
I.
Legal Standard
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
Case 2:21-cv-12874-DPH-EAS ECF No. 4, PageID.68 Filed 05/04/22 Page 2 of 8
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) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957) and Fed. R. Civ. P. 8(a)(2)). While such notice pleading
does 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).
Because Plaintiff paid the full filing fee, the Court screens this complaint under 28
U.S.C. § 1915A, which directs the Court to review a civil complaint in which a prisoner
seeks redress from a governmental entity or an employee of a governmental entity. 28
U.S.C. § 1915A(a). On this review, the Court must dismiss the complaint if it is
frivolous, malicious, or fails to state a claim upon which relief may be granted. 28 U.S.C.
§ 1915A(b)(1).
II.
Complaint
Plaintiff’s complaint asserts that he has been receiving inadequate care for a
shoulder injury and the resulting severe, chronic pain. He names as Defendants Michigan
Department of Corrections employees and other health care professionals servicing the
Gus Harrison Correctional Facility, most of whom appear to be employees of Corizon
Health.
On February 1, 2018, Plaintiff injured his right shoulder and arm while working
out in the prison’s weight room. (ECF No. 1, PageID.3.) In September 2018, an MRI
2
Case 2:21-cv-12874-DPH-EAS ECF No. 4, PageID.69 Filed 05/04/22 Page 3 of 8
performed at a Henry Ford Health System facility showed that he had a near complete
tear of his rotator cuff. (Id. at 52.)
In December 2019, Plaintiff was seen at Michigan Medicine Orthopedic Sports
Medicine Program by Dr. Michael Freehill. (Id. at 47-48.) Dr. Freehill diagnosed him
with a complete rotator cuff tear or rupture, administered one steroid injection for the
pain, prescribed three additional steroid injections, and referred Plaintiff for three to four
months of physical therapy. (Id. at 10, 19.) Plaintiff asserts he never received the
additional steroid injections or physical therapy. (Id. at 20.) He also has failed to receive
adequate treatment for his chronic pain. He details many fruitless attempts to be treated
by a pain management specialist. (See e.g. id. at 5, 7-8.)
Plaintiff alleges the delay in treatment and failure to adequately treat his injury has
resulted in permanent disability and that he continues to suffer from severe, debilitating
pain which severely impacts and restricts his function. Finally, Plaintiff notes that
policymakers for Corizon Health and the Michigan Department of Corrections institute
and enforce policies denying medical care as cost-saving measures.
III.
Discussion
Plaintiff argues that Defendants have violated his rights under the Eighth
Amendment since 2018 when he injured his shoulder. He claims that appropriate
treatment has been delayed and denied, that he suffers from resulting permanent damage
and chronic pain which Defendants have failed to treat.
“[T]he Eighth Amendment prohibits punishments which, although not physically
3
Case 2:21-cv-12874-DPH-EAS ECF No. 4, PageID.70 Filed 05/04/22 Page 4 of 8
barbarous, involve the unnecessary and wanton infliction of pain, or are grossly
disproportionate to the severity of the crime.” Rhodes v. Chapman, 452 U.S. 337, 346
(1981) (citation omitted) (internal quotation marks omitted). To succeed on an Eighth
Amendment claim, a prisoner must establish two elements, one objective and one
subjective. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). First, the objective
component requires a prisoner to show that the conduct was “sufficiently serious.”
Rafferty v. Trumbull County, Ohio, 915 F.3d 1087, 1094 (6th Cir. 2019) (quotation
omitted). The objective component “is a ‘contextual’ inquiry that is ‘responsive to
contemporary standards of decency.’” Williams v. Curtin, 631 F.3d 380, 383 (6th Cir.
2011) (quoting Hudson v. McMillian, 503 U.S. 1, 8-9 (1992)). The subjective component
requires the plaintiff to “allege facts which, if true, would show that the official being
sued subjectively perceived facts from which to infer substantial risk to the prisoner, that
he did in fact draw the inference, and that he then disregarded that risk.” Comstock v.
McCrary, 273 F.3d 693, 703 (6th Cir.2001).
A.
Defendants Sherman Campbell and Heidi Washington
Plaintiff’s Eighth Amendment claims against defendants deputy warden Sherman
Campbell and MDOC director Heidi Washington are based upon their supervisory
authority. The doctrine of respondeat superior does not apply in § 1983 lawsuits to
impute liability onto supervisory personnel, see Monell, 436 U.S. at 691-95 (1978), unless
it is shown “that the supervisor encouraged the specific incident of misconduct or in some
other way directly participated in it.” Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir.
4
Case 2:21-cv-12874-DPH-EAS ECF No. 4, PageID.71 Filed 05/04/22 Page 5 of 8
1984). A supervisor’s failure to supervise, train or control an employee is not actionable
under § 1983, unless the plaintiff shows “the official at least implicitly authorized,
approved, or knowingly acquiesced in the unconstitutional conduct . . .” Hays v.
Jefferson County, Ky., 668 F.2d 869, 874 (6th Cir. 1982).
Plaintiff fails to allege that defendants Campbell and Washington engaged in any
“active unconstitutional behavior” rather than a “‘mere failure to act.’” Shehee v. Luttrell,
199 F.3d 295, 300 (6th Cir. 1999) (quoting Salehpour v. Univ. of Tenn., 159 F.3d 199,
206 (6th Cir. 1998)). He, therefore, fails to state a claim against them.
B.
Defendants Henry Fresnick, Janet Campbell, and Kimberly Korte
Plaintiff’s factual allegations against Defendants Henry Fresnick, Janet Campbell,
and Kimberly Korte are insufficient to state a claim.
Plaintiff claims that he saw Defendant Fresnick, a registered nurse, on January 23,
2019. Fresnick “was negative, had smart comments and displayed a deliberate
indifference to Plaintiff’s health concern.” (ECF No. 1, PageID.11.) Verbal abuse or
general harassment does not constitute cruel and unusual punishment in violation of the
Eighth Amendment. Wingo v. Tennessee Department of Corrections, 499 F. App’x 453,
455 (6th Cir. 2012) (“Verbal harassment or idle threats by a state actor do not create a
constitutional violation and are insufficient to support a section 1983 claim for relief.”);
Johnson v. Unknown Dellatifa, 357 F.3d 539, 546 (6th Cir. 2004) (holding harassment
and verbal abuse, while “shameful and utterly unprofessional ... [they] do not constitute
the type of infliction of pain that the Eighth Amendment prohibits”). In addition,
5
Case 2:21-cv-12874-DPH-EAS ECF No. 4, PageID.72 Filed 05/04/22 Page 6 of 8
Plaintiff’s vague allegation that Fresnick was deliberately indifferent to Plaintiff’s health
needs is insufficient to state a claim because “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007)).
Plaintiff’s claims against Defendants Janet Campbell (health unit manager) and
Kimberly Korte (assistant health unit manager) are similarly deficient. The only specific
factual allegations raised against these defendants is that they never “reached out to
discuss any medical concerns.” (ECF No. 1, PageID.13.) This conclusory claim,
unsupported by any factual allegations fails to state a claim upon which relief may be
granted.
IV.
Conclusion
For the reasons stated, the Court DEFENDANTS DEPUTY SHERMAN
CAMPBELL, HEIDI WASHINGTON, HENRY FRESNICK, JANET CAMPBELL,
AND KIMBERLY KORTE are DISMISSED from this action.
Plaintiff’s remaining claims and defendants survive the Court’s initial screening.
Plaintiff paid the full filing fee to commence this action. Under the Federal Rules he is
therefore responsible for effecting service of the summons and complaint in accordance
with Federal Rule of Civil Procedure 4(e) or obtaining a waiver of service pursuant to
Federal Rule of Civil Procedure 4(d).
SO ORDERED.
6
Case 2:21-cv-12874-DPH-EAS ECF No. 4, PageID.73 Filed 05/04/22 Page 7 of 8
s/Denise Page Hood
DENISE PAGE HOOD
UNITED STATES DISTRICT JUDGE
DATED: May 4, 2022
7
Case 2:21-cv-12874-DPH-EAS ECF No. 4, PageID.74 Filed 05/04/22 Page 8 of 8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?