Brooks #240084 v. Unknown Party #1 et al
Filing
9
OPINION; Order to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CHRISTOPHER BROOKS,
Plaintiff,
Case No. 1:14-cv-631
v.
Honorable Janet T. Neff
T. JONES et al.,
Defendants.
____________________________________/
OPINION
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. §§ 1981,
1983 and 1985, as well as the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.
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 on
grounds of immunity and/or failure to state a claim against “MDOC, Medical Provider” (see Am.
Compl., docket #8, Page ID#30) and Defendants Bhavasar, Mamby, Lafleur, and Nurse Unknown
Party #4. Moreover, Defendants Rielly, Mason, Jankart, Wright, Resident Unit Manager Unknown
Party #5, and Nurse Unknown Party #6 will be dismissed without prejudice because they are not
mentioned in the amended complaint. The Court will serve the complaint against Defendants
Gladsklov, Jones, Officer Unknown Party #1, Resident Unit Manager Unknown Party #2, and
Assistant Resident Unit Supervisor Unknown Party #3.
Discussion
I.
Parties
Plaintiff Christopher Brooks was incarcerated with the Michigan Department of
Corrections (MDOC) at Pugsley Correctional Facility (MPF) at the time that he filed the complaint.1
The events about which he complains occurred while he was incarcerated at MPF, Charles Egeler
Reception & Guidance Center (RGC), and West Shoreline Correctional Facility (MTF).2 He sues
the following MDOC employees at RGC: Dr. Janak R. Bhavasar,3 Officer T. Jones, Officer
(Unknown) Gladsklov, a second-shift officer identified as Jane Doe (“Unknown Party #1”), a
Resident Unit Manager (RUM) identified as John Doe (“Unknown Party #2”), an Assistant Resident
Unit Supervisor (ARUS) identified as John Doe (“Unknown Party #3”), and an intake nurse on
November 1, 2012, who is identified as Jane Doe (“Unknown Party #4”). He also sues Dr. Audley
Mamby, who is employed at MTF, and Physician Assistant (PA) Ouinn Lafleur, who is employed
1
According to a letter received from Plaintiff after he filed this action, he was released from prison on July 1,
2014.
(See docket #7.)
His MDOC profile indicates that he was released on parole.
See
http://mdocweb.state.mi.us/OTIS2/otis2profile.aspx?mdocNumber=240084 (visited December 3, 2014).
2
Plaintiff refers to West Shoreline Correctional Facility as “MTF” or “Muskegon Temp Facility” in the
pleadings. (See Compl., docket #1, Page ID#_; Am. Compl., docket #8, Page ID#31.) MTF is the acronym used by the
MDOC for the West Shoreline Correctional Facility. See alphabetical list of prisons on the MDOC website, available
at http://michigan.gov/corrections/0,4551,7-119-68854_1381_1385---,00.html (visited Dec. 2, 2014).
3
Throughout his pleadings, Plaintiff uses more than one spelling for several of the parties’ names (e.g.,
“Bhauasar” for Bhavasar, “Gladskov” for Gladsklov, and “Laflur” for Lafleur). The Court will use the spellings from
the list of defendants in the amended complaint. (See Am. Compl., docket #8, Page ID##30-31.)
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at MPF. Finally, he sues a party identified as “MDOC, Medical Provider.” (Am. Compl., docket #8,
Page ID#30.)
Plaintiff named the following parties as defendants in the original complaint, but they
are not named in the amended complaint: Nurses Heidi L. Rielly, Candi M. Mason, and Christopher
J. Jankart; a RUM at RGC identified as Jane Doe (“Unknown Party #5”); a nurse identified as Jane
Doe who examined Plaintiff on November 27, 20144 (“Unknown Party #6”); and Health Unit
Manager (HUM) K. Wright. Because they are not named in the amended complaint, the Court
assumes that Plaintiff does not intend to pursue an action against them at this time. Thus,
Defendants Rielly, Mason, Jankart, Wright, Unknown Party #5, and Unknown Party #6 will be
dismissed without prejudice.
II. Factual Allegations
According to the allegations set forth in the original and amended complaints,5 when
Plaintiff arrived at RGC on November 1, 2012, he told the intake nurse (Unknown Party #4), that
he had several medical conditions: injuries to his knee, obesity (body weight over 300 pounds on
a five-foot, nine-inch frame), and “[um]bilical [h]ern[i]a surgery.” (Compl., docket #1, Page ID#3.)
She told him that he would see a doctor the following day, but she failed to assign him to a lower
bunk. The next day, Dr. Bhavasar examined Plaintiff and issued him a “medical detail order” for
a lower bunk due to his medical conditions. (Id.) That same day, Plaintiff notified Officer
4
In his original complaint, Plaintiff refers to a nurse who conducted an “exam” on December 27, 2012 (Compl.,
docket #1, Page ID#2), but no such examination is described in the allegations. The Court assumes that Plaintiff is
referring to the nurse who examined him on November 27, 2012.
5
Even though Plaintiff’s amended complaint supercedes the original version, the Court incorporates facts from
the original because the amended complaint is very brief and contains few allegations. Thus, the Court assumes that
Plaintiff intends to rely upon the more detailed description of facts contained in the original complaint.
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Gladsklov, Officer Jones, second-shift officer Unknown Party #1, RUM Unknown Party #2, and
ARUS Unknown Party #3 of the medical detail order and the fact that he needed an accommodation
for his conditions. Apparently, these officials did not respond to Plaintiff’s request. In addition,
Officer Jones stated that, notwithstanding Plaintiff’s medical detail, Jones was not authorized to
move Plaintiff to a lower bunk without permission from the RUM or the ARUS.
On November 27, 2012, Plaintiff attempted to climb down from his top bunk with
one leg on the edge of the bottom bunk and his other leg supported by a metal chair. As he did so,
the chair broke, causing Plaintiff to fall. As he fell to the floor, Plaintiff’s back, torso and neck
collided with the steel frame of the bottom bunk. Plaintiff asked for assistance and was taken to the
healthcare unit for an examination. A nurse (Unknown Party #6) conducted a “quick” evaluation
and stated that Plaintiff had sustained “just a strained muscle [and] minor swelling.” (Compl. at
Page ID#4.) She gave him Tylenol for his pain and some information about exercising. He
requested a more thorough examination by a doctor and an x-ray because of “severe pain” resulting
in “inability to ambulate,” but she refused. (Id.) He tried to explain that something was “terrible
wrong” with his back, but again she refused. (Id.) She signed a pass to change his bunk and sent
him back to his cell. When he returned to his cell, the unit officer moved him to a bottom bunk.
Approximately one week later, on December 4, 2012, Plaintiff sent a kite to
healthcare complaining about “sever[e]” pain in his side and back; he received no response. (Id.)
On December 6, 2012, he was transferred to MPF.
When Plaintiff arrived at MPF, he immediately notified healthcare staff about his
injury, his continuing pain, and the “debilitating condition” of his back. (Id.) He then sent a kite to
the medical unit on December 14, 2012. At a healthcare appointment, he received a hot water bottle
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and some pain medication. These remedies did not relieve his pain, however, or the numbness in
his leg, his difficulty in bending or getting out of bed, his loss of mobility, and the strain on his
“lower extremities from the waist down.” (Id.)
Plaintiff then filed a grievance on December 27, 2012, complaining about a lack of
treatment by healthcare staff. The grievance was denied. He requested a step II appeal form, but
HUM Wright, who was acting as grievance coordinator at the time, refused to send him a form.
On December 30, 2012, Plaintiff filed a grievance complaining that he was denied
access to an “accident report.” (Id. at Page ID#5.) The grievance was rejected at step I and
Defendant Wright refused to provide him a step II grievance form.
On February 2, 2013, Plaintiff was transferred to MTF. Upon arrival, he notified
medical staff of his injury, his “painful continuous condition,” and his desire for an additional
medical examination and further diagnostic testing. (Id.) In May 2013, he filed another grievance,
complaining about lack of treatment and proper evaluation of his condition. The grievance was
denied at step I and on appeal at steps II and III. On October 30, 2013, Plaintiff was transferred back
to MPF.
According to his original and amended complaints, Plaintiff seeks the following
relief: (1) a declaratory judgment that (a) Defendants Jones, Gladsklov, second-shift officer
Unknown Party #1, RUM Unknown Party #2, and ARUS Unknown Party #3 were negligent in
following the medical detail order and/or were deliberately indifferent to Plaintiff’s need for a
bottom-bunk assignment; (b) Defendants Mamby and Lafleur were negligent for failing to properly
diagnose and treat Plaintiff’s injury and pain and for denying Plaintiff’s request for further diagnostic
testing and examination; (c) the nurses who examined Plaintiff (Nurses Jankart, Rielly, Mason, the
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intake nurse, Unknown Party #4, and the examining nurse, Unknown Party #6) were not qualified
to diagnose Plaintiff’s condition, were negligent in providing care, and/or were deliberately
indifferent to his need for care; and (d) Defendant Wright’s failure to provide step II grievance forms
deprived Plaintiff of due process and constituted deliberate indifference to his medical needs; (2) an
injunction requiring Defendants to provide an MRI; and (3) compensatory and punitive damages.
III.
Immunity
Plaintiff sues a party identified as “MDOC, Medical Provider,” which apparently
refers to the MDOC or one of its departments. Regardless of the form of relief requested, the states
and their departments are immune under the 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.
2010); Turnboe v. Stegall, No. 00-1182, 2000 WL1679478, at *2 (6th Cir. Nov. 1, 2000). This
immunity applies to claims under 42 U.S.C. §§ 1981, 1983 and 1985. See Ejikeme v. Violet, 307 F.
App’x 944, 951 (6th Cir. 2009) (holding that Eleventh Amendment applies to claims under section
1981); Thiokol Corp. v. Dep’t of Treasury, 987 F.2d 376, 383 (6th Cir. 1993) (“Congress did not
intend to abrogate the states’ Eleventh Amendment immunity by passing section 1983.”); An–Ti
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Chai v. Mich. Technological Univ., 493 F. Supp. 1137, 1162 (W.D. Mich. 1980) (holding that the
Eleventh Amendment applies to claims under § 1985). In addition, the State of Michigan (acting
through the Michigan Department of Corrections) 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)).
The MDOC is not necessarily immune from suit under the ADA, see United States
v. Georgia, 546 U.S. 151, 159 (2006), but for the reasons stated in section IV infra, Plaintiff does
not state an ADA claim. Therefore, the Court will dismiss the party identified as “MDOC, Medical
Provider.”
IV.
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 Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (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, 556 U.S. 662, 678 (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 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 679. 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, 556 U.S. at 678 (quoting Twombly,
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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, 556 U.S. at 679 (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)).
A. 42 U.S.C. § 1983
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); Street v. Corr.
Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). 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).
Construing the complaint liberally, Plaintiff contends that his Eighth Amendment
rights were violated when: (1) the intake nurse at RGC, Unknown Party #4, failed to assign him to
a bottom bunk; (2) prison officials at RGC (Officer Gladsklov, Officer Jones, the RUM, the ARUS,
and a second-shift officer) did not accommodate Plaintiff’s request for a bottom bunk even though
he had been issued a medical detail for one; (3) a nurse at RGC evaluated his injury on November
27, 2012, and gave him Tylenol but refused to order further tests or allow an examination by a
physician; (4) Doctor Mamby and PA Lafleur did not adequately treat his pain or order further
diagnostic testing for his condition; (5) the nurses who examined Plaintiff did so without proper
qualifications to diagnose his condition; (6) he did not receive an adequate response to his requests
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for treatment of his back and neck; and (7) HUM Wright denied his request for grievance forms to
appeal grievances regarding a lack of medical care.
The Eighth Amendment imposes a constitutional limitation on the power of the states
to punish those convicted of crimes. Punishment may not be “barbarous” nor may it contravene
society’s “evolving standards of decency.” Rhodes v. Chapman, 452 U.S. 337, 345-46 (1981). The
Amendment, therefore, prohibits conduct by prison officials that involves the “unnecessary and
wanton infliction of pain.” Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir. 1987) (per curiam) (quoting
Rhodes, 452 U.S. at 346). 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 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
Cnty., 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 Cnty., 238 F.3d 739, 742 (6th Cir. 2001).
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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.
1. Intake nurse: bottom-bunk assignment
The intake nurse at RGC, Unknown Party #4, was not deliberately indifferent to
Plaintiff’s needs when she failed to assign him to a bottom bunk on the day of his arrival at the
facility. She told him that he would be evaluated by a doctor the following day. Plaintiff alleges no
facts from which to infer that sleeping on an upper bunk for one evening posed a serious risk of
substantial harm, let alone that she was deliberately indifferent to such a risk. He does not allege that
his prior knee injury, hernia surgery, or weight presented a serious risk of harm in these
circumstances. Cf. Mulazim v. Corrigan, 7 F. App’x 427, 430 (6th Cir. 2001) (dismissing claim that
defendants improperly assigned plaintiff a top bunk despite his age (56 years) and prior knee injury);
Burley v. Upton, 257 F. App’x 207, 210 (11th Cir. 2007) (“Even if Burley did have a ‘serious
medical need,’ he failed to show that officials were anything more than negligent by keeping him
in a top bunk for five days.”).
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2. Housing officers: bottom-bunk assignment
Construing the complaint generously, Plaintiff alleges that several officers at RGC
(Officer Gladsklov, Officer Jones, second-shift officer Unknown Party #1, RUM Unknown Party #2,
and ARUS Unknown Party #3) denied or failed to respond to his request for a bottom bunk, even
though he had received a medical order authorizing one. Also, Officer Jones told Plaintiff that he
did not have authorization to change Plaintiff’s assignment without approval from the RUM or the
ARUS. At this stage of the proceedings, the Court concludes that these allegations are adequate to
state an Eighth Amendment claim against the foregoing officers.
3. Evaluation and treatment on November 27, 2012
After Plaintiff was injured, a nurse (Unknown Party #6) quickly evaluated his injury
and concluded that he had strained a muscle and sustained some minor swelling. She gave him
Tylenol for his pain. Plaintiff requested additional testing and an evaluation by a physician, but she
refused. As indicated supra, Plaintiff does not identify Unknown Party#6 as a defendant in his
amended complaint; thus, she will be dismissed without prejudice.
Even if Plaintiff did name her as a defendant, he does not state a claim against her.
Plaintiff does not allege any specific harm to his health as a result of the her failure to approve
additional testing or evaluation by an physician. Even assuming that the treatment she offered was
inadequate for his pain, and did not address an underlying condition, not every claim by a prisoner
that he has received inadequate medical treatment states a violation of the Eighth Amendment.
Estelle, 429 U.S. at 105. As the Supreme Court explained:
[A]n inadvertent failure to provide adequate medical care cannot be
said to constitute an unnecessary and wanton infliction of pain or to
be repugnant to the conscience of mankind. Thus, a complaint that
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a physician has been negligent in diagnosing or treating a medical
condition does not state a valid claim of medical mistreatment under
the Eighth Amendment. Medical malpractice does not become a
constitutional violation merely because the victim is a prisoner. In
order to state a cognizable claim, a prisoner must allege acts or
omissions sufficiently harmful to evidence deliberate indifference to
serious medical needs.
Id. at 105-06 (quotations omitted). Simply put, differences in judgment between an inmate and
prison medical personnel regarding the appropriate medical diagnoses or treatment do not state a
deliberate indifference claim. Sanderfer v. Nichols, 62 F.3d 151, 154-55 (6th Cir. 1995). This is so
even if the misdiagnosis results in an inadequate course of treatment and considerable suffering.
Gabehart v. Chapleau, No. 96-5050, 1997 WL 160322, at *2 (6th Cir. Apr. 4, 1997). The Sixth
Circuit distinguishes “between cases where the complaint alleges a complete denial of medical care
and those cases where the claim is that a prisoner received inadequate medical treatment.” Westlake
v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976). If “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.” Id.; see also
Rouster v. Saginaw Cnty., 749 F.3d 437, 448 (6th Cir. 2014). “Where the claimant received
treatment for his condition . . . he must show that his treatment was ‘so woefully inadequate as to
amount to no treatment at all.’” Mitchell v. Hininger, 553 F. App’x 602, 605 (6th Cir. 2013)
(quoting Alspaugh v. McConnell, 643 F.3d 162, 169 (6th Cir. 2011)).
Here, the nurse provided some pain medication to Plaintiff based on her assessment
that he had strained a muscle. There is no indication that this care was so “woefully inadequate as
to amount to no treatment at all.” Alspaugh, 643 F.3d at 169. Even assuming that her evaluation
was brief, her diagnosis incorrect, and her treatment ineffective for his condition, there are no facts
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from which to infer that she was aware of, and deliberately indifferent to, a serious medical need
requiring additional care. Thus, he does not state a claim against her.
4. Treatment by Dr. Mamby and PA Lafleur
Plaintiff complains that Dr. Mamby and PA Lafleur did not properly diagnose or treat
his back pain. They chose to prescribe pain medication and to provide information about exercise.
They did not allow him to obtain an MRI, which Plaintiff asserts is indicative of a “pattern of neglect
and malpractice,” and which resulted in “ongoing discomfort[] and excruciating pain.” (Compl.,
docket #1, Page ID#6.) Like his allegations against Nurse Unknown Party #6, his allegations against
Defendants Mamby and Lafleur do not suffice to show deliberate indifference.
Plaintiff
acknowledges that Defendants Mamby and Lafleur responded to his medical needs by providing
medication for his pain. Plaintiff complains that they should have ordered an MRI, but as the
Supreme Court has stated, “the question whether an X-ray or additional diagnostic techniques or
forms of treatment is indicated is a classic example of a matter for medical judgment. A medical
decision not to order an X-ray, or like measures, does not represent cruel and unusual punishment.”
Estelle, 429 U.S. at 107; see also Mitchell, 553 F. App’x at 605 (“[A] desire for additional or
different treatment does not suffice by itself to support an Eighth Amendment claim.”). Likewise,
Plaintiff’s disagreement with Defendants’ decision not to order an MRI does not state a claim under
§ 1983.
Plaintiff implies that the treatment he received (i.e., pain medication and exercise
recommendations) was inadequate, but he does not indicate why that is the case, let alone that the
treatment was so “woefully inadequate as to amount to no treatment at all.” Alspaugh, 643 F.3d at
169. Plaintiff alludes to continuing pain and discomfort, but ineffective or even negligent treatment
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does not give rise to an Eighth Amendment claim. See Estelle, 429 U.S. at 106; Comstock v.
McCrary, 273 F.3d 693, 703 (6th Cir. 2001) (“When a [medical professional] provides treatment,
albeit carelessly or inefficaciously, to a prisoner, he has not displayed a deliberate indifference to the
prisoner’s needs, but merely a degree of incompetence which does not rise to the level of a
constitutional violation.”). Moreover, Plaintiff does not allege that Defendants Mamby and Lafleur
were aware of any significant pain after they prescribed medication and deliberately disregarded his
complaints. Consequently, he does not state an Eighth Amendment claim.
5. Treatment by nurses
Plaintiff asserts in his original complaint that the nurses who examined him
(Unknown Party #4, Unknown Party #6, Jankart, Rielly and Mason) were not qualified to diagnose
his condition, which “shows a consistent pattern of negligence[,] [v]iolation of the [E]ighth
[A]mendment, deliberate indifference, [and] reckless behavior of medical staff.”
(Compl.,
docket #1, Page ID#7.) Plaintiff does not state a claim against Unknown Party #4 and Unknown
Party #6, for the reasons stated supra. Furthermore, Defendants Unknown Party #6, Jankart, Rielly
and Mason will be dismissed from the action because are not named in the amended complaint. In
any event, the mere fact that nurses examined him without sufficient qualifications does not, in itself,
establish deliberate indifference on their part. The pertinent issue is whether they were “aware of
facts from which the inference could be drawn that a substantial risk of serious harm exists,” see
Farmer, 511 U.S. at 837, and then disregarded the risk. Plaintiff’s allegations do not make this
showing.
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6. Inadequate responses by healthcare staff
Plaintiff alleges that he sent several kites to healthcare staff complaining about his
condition, but he did not receive an adequate response. On December 4, 2012, while he was housed
at RGC, he sent a kite complaining about “severe” pain in his side and back, but he did not receive
a response. After he was transferred to MPF, he notified staff about his “debilitating” condition and
pain in his back, and then approximately one week later, he sent another kite to healthcare. He
received a water bottle and pain medication in response to his kite, but these treatments were not
sufficient to relieve his pain. Eventually, near the end of December that year, he filed a grievance
complaining about a lack of treatment. In addition, when he arrived at MTF in February 2013, he
notified medical staff at that facility of his painful condition and desire for additional treatment and
evaluation. Apparently, he did not receive the treatment he desired. Several months later, he filed
another grievance complaining about a lack of proper treatment and evaluation of his conditions.
None of the foregoing allegations regarding the lack of adequate responses to his
healthcare requests identify any individuals. It is a basic pleading essential that a plaintiff attribute
factual allegations to particular defendants. See Twombly, 550 U.S. at 544 (holding that, in order
to state a claim, a plaintiff must make sufficient allegations to give a defendant fair notice of the
claim); Frazier v. Michigan, 41 F. App’x 762, 764 (6th Cir. 2002) (dismissing plaintiff’s claims
where the complaint did not allege with any degree of specificity which of the named defendants
were personally involved in or responsible for each alleged violation of rights); Rodriguez v. Jabe,
No. 90-1010, 1990 WL 82722, at *1 (6th Cir. June 19, 1990) (“Plaintiff’s claims against those
individuals are without a basis in law as the complaint is totally devoid of allegations as to them
which would suggest their involvement in the events leading to his injuries.”). Furthermore, to state
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a claim under § 1983, “a plaintiff must plead that each Government-official defendant, through the
official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. Plaintiff
has not alleged that any of the individual Defendants were involved in responding, or failing to
respond, to his healthcare requests. Consequently, his allegations regarding these requests do not
state a claim against them.
7. Denial of grievance forms by HUM Wright
In his original complaint, Plaintiff contends that HUM Wright, in her capacity as
grievance coordinator, acted with deliberate indifference to his medical needs and deprived him of
due process when she denied his requests for forms to appeal his grievances. Plaintiff does not name
Wright as a defendant in his amended complaint, however. Thus, she will be dismissed without
prejudice.
Even if Plaintiff had named Wright as a defendant in the amended complaint, his
allegations would not state a claim against her. Plaintiff does not have a protected right to access
the grievance process. Walker v. Mich. Dep’t of Corr., 128 F. App’x 441, 445 (6th Cir. 2005); Argue
v. Hofmeyer, 80 F. App’x 427, 430 (6th Cir. 2003). Without a protected interest in the grievance
procedure, he cannot state a due process claim. See Experimental Holdings, Inc. v. Farris, 503 F.3d
514, 519 (6th Cir. 2007) (“Without a protected liberty or property interest, there can be no federal
procedural due process claim.”).
Moreover, her actions do not state a claim under the Eighth Amendment. Generally,
the denial of a grievance or the failure to act in response to one does not give rise to liability under
§ 1983. See Grinter v. Knight, 532 F.3d 567, 576 (6th Cir. 2008); Shehee v. Luttrell, 199 F.3d 295,
300 (6th Cir. 1999). Likewise, denying a grievance regarding medical care does not make the
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official is responsible for the lack of care. See Martin v. Harvey, 14 F. App’x 307, 309 (6th Cir.
2001) (“The denial of the grievance is not the same as the denial of a request to receive medical
care.”). If the denial of a grievance does not subject an official to liability under § 1983 or make the
official responsible for the conduct at issue in the grievance, it follows that the denial of access to
a grievance form also does not state a claim.
Moreover, Wright is not liable for the conduct of the officials involved in providing
(or failing to provide) medical care to Plaintiff merely because she supervised them in her role as
Health Unit Manager. Government officials may not be held liable for the unconstitutional conduct
of their subordinates under a theory of respondeat superior or vicarious liability. Iqbal, 556 U.S. at
676; 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, 532 F.3d at 575-76; 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 576; Greene, 310 F.3d at 899; Summers v. Leis,
368 F.3d 881, 888 (6th Cir. 2004). “[A] plaintiff must plead that each Government-official
defendant, through the official’s own individual actions, has violated the Constitution.” Iqbal, 556
U.S. at 676. Plaintiff has not alleged that HUM Wright engaged in any active unconstitutional
behavior. Consequently, he does not state a claim against her under § 1983.
B. 42 U.S.C. §§ 1981, 1985
“In order to state a claim under 42 U.S.C. §§ 1981 and 1985(3), a plaintiff must allege
that he is a member of a protected class.” Underfer v. City of Toledo, 36 F. App’x 831, 833 (6th Cir.
2002). “Section 1981 prohibits intentional race discrimination in the making and enforcing of
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contracts with both public and private actors.” Christian v. Wal-Mart Stores, Inc., 252 F.3d 862,
867-68 (6th Cir. 2001). Section 1985(3) prohibits a conspiracy “for the purpose of depriving, either
directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal
privileges and immunities under the laws . . . .” 42 U.S.C. § 1985(3). “[T]he Supreme Court has
stated that ‘[t]he language [in § 1985] requiring intent to deprive of equal protection, or equal
privileges and immunities, means there must be some racial or perhaps otherwise class-based,
invidiously discriminatory animus behind the conspirators’ actions.’” Radvansky v. Olmsted Falls,
395 F.3d 291, 314 (6th Cir. 2005) (quoting Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)). The
class of individuals protected by § 1985(3) are “those so-called discrete and insular minorities that
receive special protection under the Equal Protection Clause because of inherent personal
characteristics.” Volunteer Med. Clinic, Inc. v. Operation Rescue, 948 F.2d 218, 224 (6th Cir. 1991)
(internal quotation marks and citation omitted). Plaintiff has not alleged that he is a member of a
protected class, let alone that Defendants discriminated against him on account of his race or
membership in such a class. Consequently, he fails to state a claim under either § 1981 or § 1985.
C. ADA
Plaintiff also cites the ADA as a basis for relief. Title II of the ADA provides that
“no qualified individual with a disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services, programs, or activities of a public entity,
or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. To state a claim under
Title II, Plaintiff must show (1) that he is a qualified individual with a disability, and (2) that he was
discriminated against or denied the benefits of a program, service or activity of the state on account
of his disability. Plaintiff’s allegations fail at the first step because he does not allege facts indicating
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that he had a “disability,” which is defined as “a physical or mental impairment that substantially
limits one or more major life activities,” or a record of such an impairment, or being “regarded” as
having such an impairment. 42 U.S.C. § 12102(1). Plaintiff states only that he is obese and that he
had knee injuries and a hernia surgery. He does not indicate how any of these conditions
substantially limited a major life activity. Cf. Tucker v. Ganshimer, No. 1:07CV1035, 2008 WL
4452722, at *4 (N.D. Ohio Sept. 30, 2008) (holding that discomfort from climbing bunk ladders is
not a substantial limitation on a major life activity).
Moreover, he does not allege that he was denied participation in, or the benefit of, a
service, program or activity of the prison on account of a disability. Plaintiff complains that he was
not assigned to a bottom bunk to accommodate his condition, but even assuming that a bed is a
“service” or “program” provided by the prison, he was not deprived of a bed. He was able to use the
top bunk until he injured himself. Following that, he was assigned to a lower bunk. Finally, he does
not allege that Defendants discriminated against him on account of his disability. In other words,
he does not allege that he was treated differently with respect to the temporary denial of a bottom
bunk assignment, the denial of additional medical care, or the denial of grievance forms, because of
his condition. Consequently, for all the foregoing reasons, he does not state an ADA claim.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
will dismiss Plaintiff’s action against “MDOC, Medical Provider,” and Defendants Bhavasar,
Mamby, Jankart, Lafleur, and the intake nurse at RGC (Unknown Party #4), on grounds of immunity
and/or failure to state a claim. Moreover, Defendants Rielly, Mason, Jankart, Wright, RUM Jane
Doe (Unknown Party #5), and Nurse Jane Doe, who examined Plaintiff on November 27, 2014
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(Unknown Party #6) will be dismissed without prejudice because they are not named in the amended
complaint. The Court will allow the action to proceed against Defendants Gladsklov, Jones, and the
individuals identified herein as Unknown Party #1, Unknown Party #2, and Unknown Party #3.
An Order consistent with this Opinion will be entered.
Dated:
December 17, 2014
/s/ Janet T. Neff
Janet T. Neff
United States District Judge
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