Rosario #247823 v. Health Care (MDOC) et al

Filing 6

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

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______
RICARDO ROSARIO,
Plaintiff,
v.

Case No. 1:17-cv-825
Honorable Robert J. Jonker

HEALTH CARE (MDOC) et al.,
Defendants.

____________________________/
OPINION
This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983.
Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), 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 against Defendants MDOC, MDOC Health
Care, and the Kent County Jail on grounds of immunity or for failure to state a claim.
Discussion
I.

Factual allegations

Plaintiff is presently incarcerated with the Michigan Department of Corrections
(MDOC) at the Michigan Reformatory (RMI) in Ionia, Michigan. The circumstances that give

rise to the complaint, however, began after his arrest on September 6, 2014, when he was detained
in the Kent County Jail.
Plaintiff alleges that immediately prior to his arrest he was assaulted. As he tried
to defend himself, he injured his right shoulder and upper back and broke his right hand. (Compl.,
ECF No. 1, PageID.4.) Plaintiff states “the Kent County Jail never gave me any medical treatment
for my injuries.” (Id.) Plaintiff claims that because of the lack of treatment his right hand did not
heal correctly and his back and shoulder injuries are irreparable. (Id., PageID.4-5.)
By December of 2014, following his guilty plea to a charge of assault with intent
to commit murder, MICH. COMP. LAWS § 750.83, Petitioner was in the custody of the Michigan
Department of Corrections (MDOC). Plaintiff alleges that doctors at the MDOC’s Duane Waters
Hospital in Jackson, Michigan, told him that the only way to fix his hand would be to re-break it.
Plaintiff notes that he agreed to that treatment, but that it never healed back correctly. (Compl.,
ECF No. 1, PageID.5.) Plaintiff notes that he also received injections in his shoulder for pain.
(Id.) Nonetheless, he states that his hand, shoulder, and back always hurt. Plaintiff contends that
the MDOC will not give him adequate medical treatment, but he does not indicate in what way his
treatment falls short. It appears that Plaintiff characterizes the treatment as inadequate simply
because it has not been successful.
Plaintiff states that the Kent County Jail and the MDOC were deliberately
indifferent to Plaintiff’s serious medical needs in violation of the Eighth Amendment. He
identifies the Defendants as “Health Care (MDOC)”, (Id., PageID.1), the “Kent County
Correctional Facility”, (Id., PageID.2), “Any/All Unnamed Defendants”, (Id.), and “Any/All
Unknown Defendants”, (Id.). Plaintiff does not ascribe any action or misconduct to unnamed or
unknown defendants in the body of his complaint.

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Plaintiff asks for an award of compensatory and punitive damages as well as an
order compelling Defendants to provide him with adequate medical care.
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 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, 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)).
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

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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).
III.

MDOC or Health Care (MDOC)

Plaintiff may not maintain a § 1983 action against the Michigan Department of
Corrections or one of its divisions. 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). 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)). Therefore, the
Court dismisses the Michigan Department of Corrections and/or the Health Care Department
within the MDOC.

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IV.

The Kent County Correctional Facility or Jail

Plaintiff sues the Kent County Correctional Facility or Jail. The jail is a building,
not an entity capable of being sued in its own right. However, construing Plaintiff’s pro se
complaint with all required liberality, Haines, 404 U.S. at 520, the Court assumes that Plaintiff
intended to sue Kent County. Kent County may not be held vicariously liable for the actions of its
employees under § 1983. See Connick v. Thompson, 563 U.S. 51, 60 (2011); City of Canton v.
Harris, 489 U.S. 378, 392 (1989); Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).
Instead, a county, regardless of the form of relief sought, is liable only when its official policy or
custom causes the injury. Id.; Los Angeles Cnty. v. Humphries, 131 S. Ct. 447, 453-54 (2010)
(citing Monell, 436 U.S. at 694).
In a municipal liability claim, the finding of a policy or custom is the initial
determination to be made. Doe v. Claiborne Cnty., 103 F.3d 495, 509 (6th Cir. 1996). The policy
or custom must be the moving force behind the constitutional injury, and a plaintiff must identify
the policy, connect the policy to the governmental entity and show that the particular injury was
incurred because of the execution of that policy. Turner v. City of Taylor, 412 F.3d 629, 639 (6th
Cir. 2005); Alkire v. Irving, 330 F.3d 802, 815 (6th Cir. 2003); Doe, 103 F.3d at 508-509. It is the
Court’s task to identify the officials or governmental bodies which speak with final policymaking
authority for the local government in a particular area or on a particular issue. McMillian v.
Monroe Cnty., 520 U.S. 781, 784-85 (1997).
In matters pertaining to the conditions of the jail and to the operation of the deputies,
the sheriff is the policymaker for the county. MICH. COMP. LAWS § 51.75 (sheriff has the “charge
and custody” of the jails in his county); MICH. COMP. LAWS § 51.281 (sheriff prescribes rules and
regulations for conduct of prisoners); MICH. COMP. LAWS § 51.70 (sheriff may appoint deputies

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and revoke appointments at any time); Kroes v. Smith, 540 F. Supp. 1295, 1298 (E.D. Mich. 1982)
(the sheriff of “a given county is the only official with direct control over the duties,
responsibilities, and methods of operation of deputy sheriffs” and thus, the sheriff “establishes the
policies and customs described in Monell”). Thus, the Court looks to the allegations in Plaintiff’s
complaint to determine whether Plaintiff has alleged that the county and/or sheriff has established
a policy or custom which caused Plaintiff to be deprived of a constitutional right.
Plaintiff’s action fails at this first step because his allegations have not identified a
policy or custom. A “policy” includes a “policy statement, ordinance, regulation, or decision
officially adopted and promulgated” by the sheriff. Monell, 436 U.S. at 690. Plaintiff has not
asserted that there is an official policy.

Plaintiff also has not identified a custom. The Sixth

Circuit has explained that a “custom”
. . . for the purposes of Monell liability must be so permanent and well settled as to
constitute a custom or usage with the force of law. In turn, the notion of “law”
includes deeply embedded traditional ways of carrying out state policy. It must
reflect a course of action deliberately chosen from among various alternatives. In
short, a “custom” is a “legal institution” not memorialized by written law.
Claiborne Cnty., 103 F.3d at 507 (citations and quotations omitted).
Plaintiff makes no allegations regarding a custom or policy in his complaint. He
states only that his injuries were not treated. Plaintiff’s allegations fail to show that the sheriff
took “a course of action deliberately chosen from among various alternatives.” Claiborne Cnty.,
103 F.3d at 507. Morever, mere negligence in failing to take preventive measures is insufficient
to show § 1983 liability. Molton v. City of Cleveland, 839 F.2d 240, 246 (6th Cir. 1988). In other
words, allegations that there were negligent acts by county officials, without a showing that the
acts were the result of a policy or custom, do not support liability under § 1983. Molton, 839 F.2d

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at 246. Thus, Plaintiff has failed to allege that the county had a policy or custom that caused
plaintiff to be deprived of a constitutional right.
Where a plaintiff fails to allege that a policy or custom existed, dismissal of the
action for failure to state a claim is appropriate. Rayford v. City of Toledo, No. 86-3260, 1987 WL
36283, at *1 (6th Cir. Feb. 2, 1987); see also Bilder v. City of Akron, No. 92-4310, 1993 WL
394595, at *2 (6th Cir. Oct. 6, 1993) (affirming dismissal of § 1983 action when plaintiff’s
allegation of policy or custom was conclusory, and plaintiff failed to allege facts tending to support
the allegation). Therefore, the Court will dismiss Plaintiff’s action against Kent County because
he has failed to state a claim upon which relief may be granted.
V.

Deliberate indifference

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
indifferent to the serious medical needs of a prisoner. Id. at 104-05; Comstock v. McCrary, 273
F.3d 693, 702 (6th Cir. 2001).1
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

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“The Due Process Clause of the Fourteenth Amendment provides the same guarantee to pretrial detainees.” Bays
v. Montmorency Cnty., 874 F.3d 264, 268 (6th Cir. 2017) (citing City of Revere v. Mass. Gen. Hosp., 463 U.S. 239,
243-44 (1983).

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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 the plaintiff’s claim,
however, is based on “the prison’s failure to treat a condition adequately, or where the prisoner’s
affliction is seemingly minor or non-obvious,” Blackmore, 390 F.3d at 898, the plaintiff 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) (internal quotation
marks omitted).
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.
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 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.
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Id. at 105-06 (quotations omitted). Thus, differences in judgment between an inmate and prison
medical personnel regarding the appropriate medical diagnoses or treatment are not enough to state
a deliberate indifference claim. Sanderfer v. Nichols, 62 F.3d 151, 154-55 (6th Cir. 1995); Ward
v. Smith, No. 95-6666, 1996 WL 627724, at *1 (6th Cir. Oct. 29, 1996). 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); Perez v. Oakland County, 466 F.3d 416, 434 (6th Cir. 2006); Kellerman v.
Simpson, 258 F. App’x 720, 727 (6th Cir. 2007); McFarland v. Austin, 196 F. App’x 410 (6th Cir.
2006); Edmonds v. Horton, 113 F. App’x 62, 65 (6th Cir. 2004); Brock v. Crall, 8 F. App’x 439,
440 (6th Cir. 2001); Berryman v. Rieger, 150 F.3d 561, 566 (6th Cir. 1998). “Where the claimant
received treatment for his condition, as here, 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)).
A.

MDOC personnel

Plaintiff does not identify any of the individuals who failed to provide him care at
the MDOC. The MDOC personnel he specifically references in his complaint provided treatment:
doctors rebroke and reset his hand and someone gave Plaintiff injections for shoulder pain. The

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fact that such treatments may not have succeeded in healing Plaintiff does not render them “‘so
woefully inadequate as to amount to no treatment at all.’” Mitchell, 553 F. App’x at 605. To the
extent Plaintiff intended to include the Duane Waters Hospital “doctors” as Defendants, his
allegations are insufficient. The same is true with respect to the dispenser of pain injections.
That leaves only the following allegation: “I am always hurting (my hand &
shoulder) (my upper back) etc. but the (MDOC) will not give the adequate medication, treatment,
etc.” (Compl., ECF No. 1, PageID.5.) If Plaintiff attributed the failure to give treatment to an
individual, it mightd be possible to assess whether that person was aware of facts that would permit
the inference that Plaintiff was subject to a substantial risk of serious harm absent medical care,
and that such person actually drew the inference. Without somehow identifying the individual,
either by name or by factual description of the person’s role in demonstrating deliberate
indifference to Plaintiff’s serious medical needs, Plaintiff’s allegations fall short with respect to
the subjective component of his deliberate indifference claim.
B.

Kent County Jail personnel

Plaintiff’s allegations with regard to his treatment at the Kent County Jail are even
more meager. He alleges only: “The Kent County Jail never gave me any medical treatment for
my injuries.” (Comp., ECF No. 1, PageID.4.) Once again, without identifying the individual or
individuals who denied Plaintiff care, either by name or role, it cannot be said that Plaintiff has
adequately alleged the subjective component of a deliberate indifference claim.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the
Court determines that Plaintiff’s complaint against the MDOC, MDOC Health Care, and the Kent

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County Jail will be dismissed for failure to state a claim, under 28 U.S.C. §§ 1915(e)(2) and
1915A(b), and 42 U.S.C. § 1997e(c).
The Court will permit Plaintiff twenty-eight days to file an amended complaint that
identifies the MDOC or Kent County Jail personnel by name and/or role and describes the factual
circumstances demonstrating that the person was aware of facts that would permit the inference
that Plaintiff was subject to a substantial risk of serious harm absent medical care and that such
person actually drew the inference.
An Order consistent with this Opinion will be entered.

Dated:

December 20, 2017

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

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