Robbins #340564 v. Hallworth et al

Filing 9

OPINION; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHAEL ANTHONY ROBBINS,
Plaintiff,

Case No. 1:10-cv-1241

v.

Honorable Robert J. Jonker

RICH HALLWORTH et al.,
Defendants.
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OPINION
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983.
The Court has granted Plaintiff leave to proceed in forma pauperis. Under the Prison Litigation
Reform Act, PUB. L. NO . 104-134, 110 STAT . 1321 (1996), the Court is required to dismiss any
prisoner action brought under federal law if the complaint is frivolous, malicious, fails to state a
claim upon which relief can be granted, or seeks monetary relief from a defendant immune from such
relief. 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c). The Court must read Plaintiff’s pro
se complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and accept Plaintiff’s
allegations as true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504
U.S. 25, 33 (1992). Applying these standards, the Court will dismiss Plaintiff’s complaint for failure
to state a claim against all of the named Defendants, except for Plaintiff’s Eighth Amendment claim
against Defendants Fletcher, Graham, Neyo and Lambart.

Factual Allegations
Plaintiff is incarcerated at the Handlon Correctional Facility. In his pro se complaint,
he sues Rich Hallworth, President and CEO, PHS Correctional Healthcare; Michael W. Taylor, CFO,
PHS Correctional Healthcare; J. Scott King, Senior Vice General Counsel, PHS Correctional
Healthcare; Lawrence H. Pomeroy, President, State Corrections; Geoffrey Perselay, President/CEO,
Correctional Health Services; American Services Group, PHS Correctional Healthcare; Prison
Health Services, Inc.; and the Michigan Department of Corrections (MDOC). In addition, Plaintiff
sues the following employees of the Handlon Correctional Facility: Dr. Roger Gerlack; Psycoholgist
D. Reinbolo; Medical Practitioner Brendon Sherry; Health Information Manager Barbara Zeis,
Registered Nurse and Risk Management Coordinator Joshua Schad, Registered Nurses and Health
Unit Managers J. LaBarre and Michelle Pelon and the following Registered Nurses: (unknown)
Jones, J. Swain, R. Neyo, R. Hunt, (unknown) Endres, (unknown) McLean, K. Stouffer, Julie
Fletcher, Todd Lambart, Douglas Graham, Heidi Smith and Venette Schafer. Plaintiff also sues
unknown parties named as “Bonds of all the Defendants” and John Does 1-100.1
Plaintiff claims that he suffers from chronic neck and back pain, migraine headaches
and diabetes. He makes broad allegations against Defendants for failing to provide him with proper
medical care for his conditions in violation of the Eighth Amendment and the Fourteenth
Amendment Due Process Clause. However, the only specific allegations contained in the complaint
concern his transfer from the Newberry Correctional Facility to the Richard A. Handlon Correctional
Facility on April 28, 2010. Plaintiff claims that while he was being evaluated by Defendants

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Plaintiff assigned letters to each of the named Defendants, ranging from A to ZZZZ. For purposes of the
opinion and order, the Defendants will be referred to by name.

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Fletcher and Graham following his arrival at Handlon, he requested pain medication for “his major
migra[i]ne headache and pain and discomfort from being without his diabetic insulin while in transit
to the prison.” (Compl, ¶ 12, Page ID#10.) Defendants Fletcher and Graham instructed him to send
a medical kite in order to be seen by nursing staff. Plaintiff sent kites on April 28 and May 1. On
May 3, Plaintiff received a written response from Defendant Neyo saying only “watch callout.”
Plaintiff claims that he was not seen by nursing staff for eight days. Plaintiff claims that he suffered
terrible pain and discomfort during that period and was without pain medication or insulin. Plaintiff
sent an additional medical kite on May 10, 2010, requesting to see a neurologist about his chronic
migraine, back and shoulder pain. Defendant Lambart responded “You are scheduled to see the
nurse about these matters, an appropriate referral will be made if necessary at that time.” (Compl.,
16, Page ID#11.) Plaintiff claims that no such neurological evaluation has occurred and he continues
to suffer unnecessary pain due to the deliberate indifference of all of the named Defendants.
Plaintiff also generally asserts that the Defendant medical staff members are denying
him medical care in retaliation for his grievances concerning inadequate medical care. The only
specific allegations he makes with regard to retaliation are that Defendants Pelon and Schad, as
supervisory personnel, “fail[ed] to abate the retaliatory acts of commissions [sic] of their subordinate
staff,” thus placing Plaintiff at risk of irreparable harm. (Compl, ¶ 25, Page ID#13.)
Plaintiff seeks injunctive relief and monetary damages of $900,000.
Discussion
I.

Immunity

As an initial matter, Plaintiff may not maintain a § 1983 action against the MDOC.
Regardless of the form of relief requested, the states and their departments are immune under the
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Eleventh Amendment from suit in the federal courts, unless the state has waived immunity or
Congress has expressly abrogated Eleventh Amendment immunity by statute. See Pennhurst State
Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-101 (1984); Alabama v. Pugh, 438 U.S. 781, 782
(1978); O’Hara v. Wigginton, 24 F.3d 823, 826 (6th Cir. 1993). Congress has not expressly
abrogated Eleventh Amendment immunity by statute, Quern v. Jordan, 440 U.S. 332, 341 (1979),
and the State of Michigan has not consented to civil rights suits in federal court. Abick v. Michigan,
803 F.2d 874, 877 (6th Cir. 1986). In numerous unpublished opinions, the Sixth Circuit has
specifically held that the MDOC is absolutely immune from suit under the Eleventh Amendment.
See, e.g., McCoy v. Michigan, 369 F. App’x 646, 653-54 (6th Cir. Mar. 12, 2010); Turnboe v.
Stegall, No. 00-1182, 2000 WL1679478, at *2 (6th Cir. Nov. 1, 2000). In addition, the State of
Michigan (acting through the MDOC) is not a “person” who may be sued under § 1983 for money
damages. See Lapides v. Bd. of Regents, 535 U.S. 613 (2002) (citing Will v. Mich. Dep’t of State
Police, 491 U.S. 58 (1989)). Therefore, the MDOC must be dismissed.
II.

Failure to state a claim

A complaint may be dismissed for failure to state a claim if “‘it fails 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, 45-46 (1957)).
While a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include
more than labels and conclusions. Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949 (2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”). The court must determine whether the complaint contains “enough
facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has
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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, 129 S. Ct. at
1949. Although the plausibility standard is not equivalent to a “‘probability requirement,’ . . . it asks
for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 129 S. Ct. at 1949
(quoting Twombly, 550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’
– that the pleader is entitled to relief.” Iqbal, 129 S. Ct. at 1950 (quoting FED . R. CIV . P. 8(a)(2));
see also Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding that the Twombly/Iqbal
plausibility standard applies to dismissals of prisoner cases on initial review under 28 U.S.C.
§§ 1915A(b)(1) and 1915(e)(2)(B)(I)).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right
secured by the federal Constitution or laws and must show that the deprivation was committed by
a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Dominguez v. Corr.
Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009). Because § 1983 is a method for vindicating federal
rights, not a source of substantive rights itself, the first step in an action under § 1983 is to identify
the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994).
A.

Eighth Amendment

The Eighth Amendment prohibits the infliction of cruel and unusual punishment
against those convicted of crimes. U.S. Const. amend. VIII. The Eighth Amendment obligates
prison authorities to provide medical care to incarcerated individuals, as a failure to provide such
care would be inconsistent with contemporary standards of decency. Estelle v. Gamble, 429 U.S.
102, 103-04 (1976). The Eighth Amendment is violated when a prison official is deliberately
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indifferent to the serious medical needs of a prisoner. Id. at 104-05; Comstock v. McCrary, 273 F.3d
693, 702 (6th Cir. 2001).
A claim for the deprivation of adequate medical care has an objective and a subjective
component. Farmer v. Brennan, 511 U.S. 825, 834 (1994). To satisfy the objective component, the
plaintiff must allege that the medical need at issue is sufficiently serious. Id. In other words, the
inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm.
Id. The objective component of the adequate medical care test is satisfied “[w]here the seriousness
of a prisoner’s need[ ] for medical care is obvious even to a lay person.” Blackmore v. Kalamazoo
County, 390 F.3d 890, 899 (6th Cir. 2004). If, however the need involves “minor maladies or
non-obvious complaints of a serious need for medical care,” Blackmore, 390 F.3d at 898, the inmate
must “place verifying medical evidence in the record to establish the detrimental effect of the delay
in medical treatment.” Napier v. Madison County, Ky., 238 F.3d 739, 742 (6th Cir. 2001).
The subjective component requires an inmate to show that prison officials have “a
sufficiently culpable state of mind in denying medical care.” Brown v. Bargery, 207 F.3d 863, 867
(6th Cir. 2000) (citing Farmer, 511 U.S. at 834). Deliberate indifference “entails something more
than mere negligence,” Farmer, 511 U.S. at 835, but can be “satisfied by something less than acts
or omissions for the very purpose of causing harm or with knowledge that harm will result.” Id.
Under Farmer, “the official must both be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837.
With the exception of Defendants Fletcher, Graham, Neyo and Lambart, Plaintiff fails
to make specific factual allegations against the named Defendants concerning the alleged denial of
medical care. Rather, Plaintiff makes sweeping, conclusory assertions throughout his complaint that
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all of the named Defendants (“Defendants A thru ZZZZ”) denied him medical treatment. Plaintiff
has failed to sufficiently plead facts that would allow the Court to draw a reasonable inference that
Defendants, other than Fletcher, Graham, Neyo and Lambart, are liable for the misconduct alleged.
Iqbal, 129 S. Ct. at 1949-50. Moreover, to the extent Plaintiff sues Defendants by virtue of their
supervisory capacity within PHS Correctional Healthcare, the MDOC or the Handlon Correctional
Facility, he fails to state a claim.

Government officials may not be held liable for the

unconstitutional conduct of their subordinates under a theory of respondeat superior or vicarious
liability. Iqbal, 129 S. Ct. at 1948; Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658,
691(1978); Everson v. Leis, 556 F.3d 484, 495 (6th Cir. 2009). A claimed constitutional violation
must be based upon active unconstitutional behavior. Grinter v. Knight, 532 F.3d 567, 575 (6th Cir.
2008); Greene v. Barber, 310 F.3d 889, 899 (6th Cir. 2002). The acts of one’s subordinates are not
enough, nor can supervisory liability be based upon the mere failure to act. Grinter, 532 F.3d at 575;
Greene, 310 F.3d at 899; Summers v. Leis, 368 F.3d 881, 888 (6th Cir. 2004). Moreover, § 1983
liability may not be imposed simply because a supervisor denied an administrative grievance or
failed to act based upon information contained in a grievance. See Shehee v. Luttrell, 199 F.3d 295,
300 (6th Cir. 1999). “[A] plaintiff must plead that each Government-official defendant, through the
official’s own individual actions, has violated the Constitution.” Iqbal, 129 S. Ct. at 1948. Plaintiff
has failed to allege that Defendants engaged in any active unconstitutional behavior. Accordingly,
Plaintiff’s Eighth Amendment claim must be dismissed against all of the named Defendants, except
Defendants Fletcher, Graham, Neyo and Lambart.
As set forth above in the statement of fact, Plaintiff claims that Defendants Fletcher,
Graham, Neyo and Lambart denied him medical treatment following his transfer to the Handlon
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Correctional Facility. Plaintiff claims that as a result of Defendants’ conduct he was without pain
medication or insulin for and suffered terrible pain and discomfort. He also contends that he has
been denied a neurological evaluation for his ongoing migraines and neck and shoulder pain. At this
stage of the proceedings, the Court finds that Plaintiff’s allegations against Defendants Fletcher,
Graham, Neyo and Lambart are sufficient to state an Eighth Amendment claim.
B.

Fourteenth Amendment Due Process

Plaintiff also asserts a Fourteenth Amendment due process claim arising from the
denial of medical treatment, which the Court construes as a substantive due process claim. The
Eighth Amendment is Plaintiff’s proper source for relief. The Eighth Amendment protects prison
inmates against deliberate indifference to their serious medical needs, regardless of how that
deliberate indifference is evidenced. “Where a particular Amendment ‘provides an explicit textual
source of constitutional protection’ against a particular sort of government behavior, ‘that
Amendment, not the more generalized notion of substantive due process, must be the guide for
analyzing these claims.’” Albright v. Oliver, 510 U.S. 266, 273 1994) (quoting Graham v. Connor,
490 U.S. 386, 395 (1989)). The Eighth Amendment is the primary source of substantive protection
to a prison inmate alleging the denial of medical care. Whitley v. Albers, 475 U.S. 312, 319, 327
(1986) (citing Estelle, 429 U.S. at 104); see also Walker v. Norris, 917 F.2d 1449, 1455 (6th Cir.
1990) (recognizing that the reasoning of Graham applies “in the context of claims arising under the
eighth amendment.”); Dodson v. Wilkinson, 304 F. App’x 434 (6th Cir. 2008) (same). Accordingly,
Plaintiff’s substantive due process claim will be dismissed for failure to state a claim.
C.

Retaliation

Plaintiff generally asserts that all of the named Defendants (“Defendants A thru
ZZZZ”) denied him medical care in retaliation for his grievances concerning medical care. Plaintiff
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only specifically alleges that Defendants Pelon and Schad, as supervisory personnel, “fail[ed] to
abate the retaliatory acts of commissions [sic] of their subordinate staff,” thus placing Plaintiff at risk
of irreparable harm. (Compl, ¶ 25, Page ID#13.)
Retaliation based upon a prisoner’s exercise of his or her constitutional rights violates
the Constitution. See Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). In order
to set forth a First Amendment retaliation claim, a plaintiff must establish that: (1) he was engaged
in protected conduct; (2) an adverse action was taken against him that would deter a person of
ordinary firmness from engaging in that conduct; and (3) the adverse action was motivated, at least
in part, by the protected conduct. Thaddeus-X, 175 F.3d at 394. Moreover, a plaintiff must be able
to prove that the exercise of the protected right was a substantial or motivating factor in the
defendant’s alleged retaliatory conduct. See Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001)
(citing Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).
Assuming Plaintiff can satisfy the first two requirements for a retaliation claim, he
fails to satisfy the third. It is well recognized that “retaliation” is easy to allege and that it can
seldom be demonstrated by direct evidence. See Harbin-Bey v. Rutter, 420 F.3d 571, 580 (6th Cir.
2005); Murphy v. Lane, 833 F.2d 106, 108 (7th Cir. 1987). “[A]lleging merely the ultimate fact of
retaliation is insufficient.” Murphy, 833 F.2d at 108. “[C]onclusory allegations of retaliatory motive
‘unsupported by material facts will not be sufficient to state . . . a claim under § 1983.’” Harbin-Bey,
420 F.3d at 580 (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1538-39 (6th Cir. 1987)); see also
Murray v. Unknown Evert, 84 F. App’x 553, 556 (6th Cir. 2003) (in complaints screened pursuant
to 28 U.S.C. § 1915A, “[c]onclusory allegations of retaliatory motive with no concrete and relevant
particulars fail to raise a genuine issue of fact for trial”) (internal quotations omitted); Lewis v.
Jarvie, 20 F. App’x 457, 459 (6th Cir. 2001) (“bare allegations of malice on the defendants’ parts
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are not enough to establish retaliation claims” that will survive § 1915A screening). Plaintiff merely
alleges the ultimate fact of retaliation in this action. He has not presented any facts whatsoever to
support his conclusion that all of the named Defendants retaliated against him because of his
grievances. The Supreme Court recently held in Iqbal that in order to state a claim, “[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” 129 S. Ct. at 1949.
Furthermore, as discussed above, Defendants Pelon and Schad cannot be held liable
for the conduct of their employees under a theory of respondeat superior of vicarious liability. Iqbal,
129 S. Ct. at 1948. Plaintiff has failed to allege that Defendants Pelon and Schad engaged in any
active unconstitutional behavior. Accordingly, Plaintiff fails to state a retaliation claim against any
of the named Defendants.
Conclusion
Having conducted the review now required by the Prison Litigation Reform Act, the
Court determines that all of the claims and Defendants named in the complaint will be dismissed for
failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e,
with the exception of Plaintiff’s Eighth Amendment claim against Defendants Fletcher, Graham,
Neyo and Lambart. The Court will serve the complaint against those four Defendants.
An Order consistent with this Opinion will be entered.

Dated:

April 21, 2011

/s/ Robert J. Jonker
ROBERT J. JONKER
UNITED STATES DISTRICT JUDGE

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