Wilkins #759458 v. Corizon of Michigan et al

Filing 6

OPINION; signed by Magistrate Judge Phillip J. Green (jkw)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______

ROBERT WILKINS,
Plaintiff,
v.

Case No. 1:21-cv-793
Honorable Phillip J. Green

CORIZON OF MICHIGAN, et al.,
Defendants.

____________________________/
OPINION
This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983.
Plaintiff has consented to the conduct of all proceedings in this case, including entry
of a final judgment and all post-judgment motions, by a United States magistrate
judge. (ECF No. 5.) 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 for failure to state a claim.

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Discussion
I.

Factual allegations
Plaintiff is presently incarcerated with the Michigan Department of

Corrections (MDOC) at the Lakeland Correctional Facility (LCF) in Coldwater,
Branch County, Michigan. The events about which he complains occurred at that
facility. Plaintiff sues Corizon of Michigan a/k/a Corizon Health Inc., Warden Bryan
Morrison, Nurse Practitioner Janette Altenbert, Physician’s Assistant Margaret
Ouellette, Unknown Party #1 named as John Doe, and Unknown Party #2 named as
Jane Doe.
Plaintiff alleges that he was seen by Defendants Unknown Parties #1 and #2
for an infection of his right ear on March 20, 2020, August 23, 2020, and October 2,
2020. Plaintiff asserts that although Defendants claimed to have cured his ear
infection, he never actually received any treatment. As a result, both ears became
infected and he now suffers permanent damage to his hearing. Plaintiff attaches the
results of a hearing test that was conducted on March 8, 2021, which shows that
Plaintiff suffers from mild to moderate hearing loss in his left ear and profound
hearing loss in his right ear. (ECF No. 1-3.)
Plaintiff alleges that, on February 16, 2021, RN Taylor Schwarz performed a
series of examinations and concluded that Plaintiff was not suffering from any
impairment. On March 4, 2021, after nearly a year of no treatment, Defendant
Altenbert stated that Plaintiff’s ear canal appeared normal in color and was pearly,
almost translucent. But four days later, on March 8, 2021, Defendant Ouellette

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charted that Plaintiff had damage to his left ear. Plaintiff claims that Defendant
Altenbert’s failure to provide him with treatment is the cause of his hearing loss.
Plaintiff attaches a number of exhibits related to his medical treatment to his
complaint. In a Clinical Encounter Note dated October 2, 2020, Amanda GlennOkeke, RN, noted that Plaintiff complained of right ear ringing and pain, and stated
that he was experiencing fluid in his right ear. Plaintiff told Glenn-Okeke that he
had an ear infection to his left ear back in March and was treated with Augmentin at
that time. (ECF No. 1-9, PageID.42.) Plaintiff’s right ear became infected sometime
in March 2020, and was treated with Augmentin; it became infected again in July or
August and was treated with seven days of Augmentin, and then ten days of
Augmentin because the infection did not clear up. (Id.) Plaintiff described the pain
to his right ear as tight stabbing pain upon lying down and said that clear liquid with
yellow residue was coming out of his ear. (Id.) Glenn-Okeke stated that Plaintiff’s
right tympanic membrane was not visible due to thick green mucus, but his left
tympanic membrane was visible and pearly. A culture was taken of Plaintiff’s right
ear. (Id., PageID.43.)
In another Clinical Encounter Note dated October 2, 2020, with a stamped “See
Amendment” on it, Defendant Ouellette states that she was seeing Plaintiff because
the RN, presumably Glenn-Okeke, asked her to evaluate Plaintiff’s right ear. (ECF
No. 1-11, PageID.49.) Defendant Ouellette noted that Plaintiff had failed treatment
with Augmentin 875 mg BID and reported a history of recurrent ear infections for
the past ten years. Defendant Ouellette noted that the CDC recommended “Rocephin

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daily x 3 doses,” and indicated that she would prescribe Rocephin 1 gm to be injected
IM daily for three days. Defendant Ouellette also educated Plaintiff regarding the
potential side-effects.

(Id.)

But Plaintiff also attaches the amended Clinical

Encounter Note, which is identical to the first note except there is no indication that
Plaintiff would be prescribed Rocephin. Instead, a wound culture was ordered for
Plaintiff’s right ear. (ECF No. 1-12, PageID.52.)
Plaintiff offers a Lab Report dated October 10, 2020, showing the results of the
culture of Plaintiff’s ear. The report indicates the presence of K. pneumoniae, C.
koseri, and Beta-Hemolytic Streptococcus Group B, and states that the Group B
Streptococcus showed predictable response to empiric therapy with Penicillin,
Ampicillin, and Cefazolin. (ECF No. 1-13, PageID.54-55.)
Plaintiff also attaches a step II grievance appeal response dated March 9, 2021,
regarding Plaintiff’s complaint of inappropriate care. The step II respondent Subrina
Aiken, RN, summarized the February 2, 2021, step I response as follows:
Upon investigation and review of the Electronic Health Record (EHR),
Grievant was seen on 3/20/2020 and treated. Reported everything is fine
on 6/16/2020, Grievant was seen on 7/5/2020 for an Annual Health
Screen and no issues were reported. Grievant was seen on 8/23/2020
and treated. Grievant was seen 10/2/2020 and was treated. Grievant
has not reported permanent hearing loss. Grievant has not sent a
Health Care Request (HCR) or had unit Officer call since October of 2020
regarding this issue. Grievance is denied. Your disagreement with the
decisions of qualified Medical Provider (MP) does not constitute support
for your claim. You shall be provided with a continuum of medically
necessary health care services that are supported by evidence based
medical research. You are being evaluated, treated, have had diagnostic
testing conducted and is [sic] being monitored by the MP. The MP is
responsible for determining the most appropriate course of treatment
for his/her patients taking into consideration all information available.
Your medical needs are being met.
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(ECF No. 1-10, PageID.45.)
In the summary of the step II investigation, Aiken noted that the EHR had
been reviewed and that Plaintiff had been seen for his complaints of pain/ringing in
his right ear by Nursing, who had referred Plaintiff to the Medical Provider. Aiken
stated that Plaintiff had been seen by two different Medical Providers, that his
treatment plan had been updated, that he had been approved for an Audicus
Audiogram, and that his medical needs were being met as he reported them.
Plaintiff’s step II grievance appeal was considered resolved. (Id.)
Plaintiff filed a step III grievance appeal asserting that “the RNs repeatedly
failed to provide him with prescribed antibiotics, and as a result he suffered
permanent hearing loss.” (ECF No. 1-6, PageID.31.) On March 25, 2021, S. Smoyer,
RN, rejected the step III appeal because Plaintiff did not try to resolve the issue with
staff by filing a health care kite prior to filing a grievance. (Id., PageID.32.)
In a kite response dated February 12, 2021, Plaintiff was referred for a nursing
appointment in response to his complaint that his right ear was constantly ringing
and throbbing like a toothache, and that he could not hear out of his right ear. (ECF
No. 1-4.)
A February 16, 2021, Clinical Encounter Note indicates that Plaintiff’s right
ear showed inflammation and cerumen impaction, and that his left ear showed
inflammation.

In

the

assessment

section,

Taylor

Schwarz

stated

“No

Impairment/Normal Examination” and noted that Plaintiff had complained of ear

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pain since his last ear infection. Plaintiff was given three days’ worth of Tylenol and
released back to his housing unit. (ECF No. 1-5.)
In a Clinical Encounter Note dated March 4, 2021, Defendant Altenbert noted
that Plaintiff has a history of allergic rhinitis and took medications from the inmate
store daily.

Defendant Altenbert further stated that physical examination of

Plaintiff’s left ear showed a normal color ear canal and tympanic membrane, which
was pearly and translucent.

Plaintiff’s right ear canal appeared red, and the

tympanic membrane was dark and non-translucent. Patient denied any pain or
feeling of fluid in the right ear. Patient failed whisper test right side. Plaintiff was
referred for audiology testing. (ECF No. 1-7, PageID.34.)
On March 8, 2021, Defendant Ouellette created a Clinical Encounter Note,
noting that Plaintiff was presenting for a hearing test and that his right ear was
abnormal and left ear required some help. Defendant Ouellette stated that the plan
was to await the final hearing report. (ECF 1-8, PageID.39.)
A March 30, 2021, CT imaging report of Plaintiff’s temporal bone showed that
the mastoid air cells were normally aerated bilaterally, there was normal aeration of
the middle ear cavity and Prussak’s space on each side, and the middle ear ossicles
and tympanic membranes appeared intact bilaterally. Plaintiff’s external auditory
canals were patent and his internal auditory canals were unremarkable in
appearance. No acute temporal bone abnormality was seen on either side. But
moderate mucosal thickening was seen involving the paranasal sinuses indicative of

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chronic sinusitis. In addition, a 1.7 cm retention cyst or polyp was seen in the right
maxillary sinus. (ECF No. 1-14, PageID.57.)
Plaintiff claims that Defendants violated his rights under the Eighth
Amendment, as well as under state law. Plaintiff seeks damages and equitable relief.
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)
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(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); 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).
A.

Defendants Corizon and Morrison

Plaintiff fails to make specific factual allegations against Defendants Corizon
and Morrison other than his claim that they failed to properly train and supervise
their employees. 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). In addition, a
plaintiff that sues a private or public corporation for constitutional violations under
§ 1983 must establish that a policy or custom caused the alleged injury. Sova v. City
of Mt. Pleasant, 142 F.3d 898, 904 (6th Cir. 1998); Street, 102 F.3d at 818. The Sixth
Circuit has specifically held that like a municipal corporation, a private health care
corporation’s “liability must also be premised on some policy that caused a

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deprivation of [a prisoner’s] Eighth Amendment rights.” Starcher v. Corr. Med. Sys.,
Inc., 7 F. App’x 459, 465 (6th Cir. 2001).
A claimed constitutional violation must be based upon active unconstitutional
behavior. Grinter v. Knight, 532 F.3d 567, 575–76 (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
576; 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, 556 U.S. at 676.
The Sixth Circuit repeatedly has summarized the minimum required to
constitute active conduct by a supervisory official:
“[A] supervisory official’s failure to supervise, control or train the
offending individual is not actionable unless the supervisor either
encouraged the specific incident of misconduct or in some other way
directly participated in it.” Shehee, 199 F.3d at 300 (emphasis added)
(internal quotation marks omitted). We have interpreted this standard
to mean that “at a minimum,” the plaintiff must show that the
defendant “at least implicitly authorized, approved, or knowingly
acquiesced in the unconstitutional conduct of the offending officers.”
Peatross v. City of Memphis, 818 F.3d 233, 242 (6th Cir. 2016) (quoting Shehee, 199
F.3d at 300, and citing Phillips v. Roane Cnty., 534 F.3d 531, 543 (6th Cir. 2008)); see
also Copeland v. Machulis, 57 F.3d 476, 481 (6th Cir. 1995) (citing Rizzo v. Goode,
423 U.S. 362, 375–76 (1976), and Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir.
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1984)); Walton v. City of Southfield, 995 F.2d 1331, 1340 (6th Cir. 1993); Leach v.
Shelby Cnty. Sheriff, 891 F.2d 1241, 1246 (6th Cir. 1989).
Plaintiff fails to allege any facts showing that Defendants Corizon and
Morrison encouraged or condoned the conduct of their subordinates, or authorized,
approved or knowingly acquiesced in the conduct. Indeed, he fails to allege any facts
at all about their conduct. Nor has Plaintiff alleged facts showing that decisions
regarding his medical treatments were based a policy or custom of Defendant
Corizon.

His vague and conclusory allegations of supervisory responsibility are

insufficient to demonstrate that Defendants were personally involved in decisions
regarding Plaintiff’s medical treatment. Conclusory allegations of unconstitutional
conduct without specific factual allegations fail to state a claim under § 1983. See
Iqbal, 556 U.S. at 678–79; Twombly, 550 U.S. at 555. Because Plaintiff’s § 1983
claims against Defendants Corizon and Morrison are premised on nothing more than
respondeat superior liability, they are properly dismissed.
B.

Defendants Altenbert, Ouellette, and the Unknown Defendants

As noted above, Plaintiff claims that Defendants violated his rights under the
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. 97, 103–04 (1976).
The Eighth Amendment is violated when a prison official is deliberately indifferent

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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); see also Phillips v. Roane Cnty.,
534 F.3d 531, 539–40 (6th Cir. 2008). Obviousness, however, is not strictly limited to
what is detectable to the eye. Even if the layman cannot see the medical need, a
condition may be obviously medically serious where a layman, if informed of the true
medical situation, would deem the need for medical attention clear. See, e.g., Rouster
v. Saginaw Cnty., 749 F.3d 437, 446–51 (6th Cir. 2014) (holding that a prisoner who
died from a perforated duodenum exhibited an “objectively serious need for medical
treatment,” even though his symptoms appeared to the medical staff at the time to
be consistent with alcohol withdrawal); Johnson v. Karnes, 398 F.3d 868, 874 (6th
Cir. 2005) (holding that prisoner’s severed tendon was a “quite obvious” medical need,
since “any lay person would realize to be serious,” even though the condition was not
visually obvious). 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

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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). Deliberate indifference “entails something more than
mere negligence,” 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.” Farmer,
511 U.S. at 835. “[T]he 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. To prove a defendant’s subjective knowledge, “[a] plaintiff
may rely on circumstantial evidence . . . : A jury is entitled to ‘conclude that a prison
official knew of a substantial risk from the very fact that the risk was obvious.’”
Rhinehart v. Scutt, 894 F.3d 721, 738 (6th Cir. 2018) (quoting Farmer, 511 U.S. at
842)).
But 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:

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[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.
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, 749 F.3d at 448; Perez v. Oakland Cnty., 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, 440–41 (6th Cir. 2001);
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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. 2014) (quoting Alspaugh v. McConnell, 643 F.3d 162, 169 (6th Cir.
2011)). He must demonstrate that the care he received was “so grossly incompetent,
inadequate, or excessive as to shock the conscience or to be intolerable to fundamental
fairness.” See Miller v. Calhoun Cnty., 408 F.3d 803, 819 (6th Cir. 2005) (quoting
Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989)).
Plaintiff’s alleges that he suffered from recurring ear infections in 2020 and
2021. It is apparent from Plaintiff’s complaint and the attachments thereto that
Plaintiff had a history of ear infections going back ten years (ECF No. 1-11,
PageID.49), that he was seen on multiple occasions for his ear infections and was
treated with Augmentin on at least three occasions (ECF No. 1-9, PageID.42), that
his right ear was subsequently cultured to determine the best course of treatment
(ECF Nos. 1-12, PageID.52, and ECF No. 1-13, PageID.54-55), and that Plaintiff was
provided with both hearing and diagnostic testing to address his hearing loss (ECF
No. 1-7, PageID.34, ECF 1-8, PageID.39, ECF No. 1-14, PageID.57). Although it is
clear to the Court that Plaintiff is suffering from the effects of recurrent ear
infections, it is also clear that he has received treatment for this condition on
numerous occasions.

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There are no allegations in Plaintiff’s complaint, nor is there information in
the exhibits he attaches to that complaint, that suggest any involvement by
Defendant Altenbert until she saw Plaintiff on March 4, 2021. (Compl., ECF No. 1,
PageID.7) (“On 3/4/2021 at 11:59am, the Plaintiff[] first encounter[ed] Defendant
Janette Altenbert . . . .”); (Clinical Encounter Report, ECF No. 1-7). By that time,
however, the alleged failure in treatment had already caused the damage of which
Plaintiff complains—he had already lost hearing in his right ear and hearing in his
left ear had already been compromised. Moreover, Altenbert prompted the hearing
test that resulted in Plaintiff’s visit with Defendant Ouellette four day later. (Id.,
PageID.34) (“Provider to place 407 for audiology testing.”). Thus, there is nothing in
the March 4, 2021, encounter that supports an inference that Defendant Altenbert
was indifferent, deliberately or otherwise, to Plaintiff’s serious medical need. He has
failed to state a claim against her.
Defendant Ouellette, on the other hand, was apparently involved in the
treatment of Plaintiff’s ear infections from the start. According to Plaintiff, she saw
Plaintiff in March and October of 2020, and March of 2021. None of those encounters,
however, supports an inference that Defendant Ouellette was deliberately
indifferent. During 2020, she prescribed antibiotic treatment on both occasions.
Plaintiff does not deny receiving the antibiotics, he simply suggests he should have
received more.

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Plaintiff also claims that Defendant Ouellette initially prescribed Ceftriaxone
(Rocephin), an antibiotic given by injection, but then removed that prescription. A
comparison of the original and amended Clinical Encounter Reports, however,
indicates that the prescription was removed pending a lab report regarding the
exudate culture taken from Plaintiff’s left ear for the purpose of identifying the
bacteria that had infected the ear. (Clinical Encounter Report, ECF No. 1-11; Clinical
Encounter Report, ECF No. 1-12.) Moreover, subsequent notes suggest that, after
the lab report came back, Plaintiff received some form of antibiotic injections, even if
the lab report supported injection of an antibiotic other than Ceftriaxone. (Clinical
Encounter Report, ECF No. 1-5, PageID.28) (“My right hear rings constantly. Throbs
like a tooth-ache. And I cannot hear out of it. Last I was to see you I was told I was
being sent out for it. I also told you it was worse after the shots I received.”)
(emphasis added).
Plaintiff essentially invites the Court to infer that, because Defendant
Ouellette failed to “fix” Plaintiff’s right ear, she must have been deliberately
indifferent.

Indeed, that is the basis of his claim against all of the Unknown

Defendants as well: “no unknown John or [Jane] Doe medical staff at [L]akeland Corr.
Fac., ever treated/fixed the plaintiff’s right ear infection, which now makes each
unknown John and Jane Doe, personally involved and deliberately indifferen[t] to
Mr. Wilkins serious medical needs . . . .” (Compl., ECF No. 1, PageID.6.) Plaintiff
offers no authority to support his suggestion that a bad outcome will suffice to
establish the subjective component of a deliberate indifference claim.

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Because Plaintiff has failed to allege facts showing that the named Defendants
were deliberately indifferent or that his treatment was ‘so woefully inadequate as to
amount to no treatment at all,” Mitchell, 553 F. App’x at 605, his Eighth Amendment
claims are properly dismissed.
C.

State law claims

Plaintiff claims that Defendants were grossly negligent with regard to the
treatment of Plaintiff’s ear infections. Claims under § 1983 can only be brought for
“deprivations of rights secured by the Constitution and laws of the United States.”
Lugar v. Edmondson Oil Co., 457 U.S. 922, 924 (1982). Section 1983 does not provide
redress for a violation of a state law. Pyles v. Raisor, 60 F.3d 1211, 1215 (6th Cir.
1995); Sweeton v. Brown, 27 F.3d 1162, 1166 (6th Cir. 1994). Plaintiff’s assertion that
Defendants violated state law therefore fails to state a claim under § 1983.
Moreover, to the extent that Plaintiff seeks to invoke this Court’s supplemental
jurisdiction over a state-law claim, the Court declines to exercise jurisdiction.
Ordinarily, where a district court has exercised jurisdiction over a state-law claim
solely by virtue of supplemental jurisdiction and the federal claims are dismissed
prior to trial, the court will dismiss the remaining state-law claims. See Experimental
Holdings, Inc. v. Farris, 503 F.3d 514, 521 (6th Cir. 2007) (“Generally, once a federal
court has dismissed a plaintiff’s federal law claim, it should not reach state law
claims.”) (citing United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966));
Landefeld v. Marion Gen. Hosp., Inc., 994 F.2d 1178, 1182 (6th Cir. 1993).

In

determining whether to retain supplemental jurisdiction, “[a] district court should

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consider the interests of judicial economy and the avoidance of multiplicity of
litigation and balance those interests against needlessly deciding state law issues.”
Landefeld, 994 F.2d at 1182; see also Moon v. Harrison Piping Supply, 465 F.3d 719,
728 (6th Cir. 2006) (“Residual jurisdiction should be exercised only in cases where the
interests of judicial economy and the avoidance of multiplicity of litigation outweigh
our concern over needlessly deciding state law issues.”) (internal quotations omitted).
Dismissal, however, remains “purely discretionary.” Carlsbad Tech., Inc. v. HIF Bio,
Inc., 556 U.S. 635, 639 (2009) (citing 28 U.S.C. § 1367(c)); Orton v. Johnny’s Lunch
Franchise, LLC, 668 F.3d 843, 850 (6th Cir. 2012).
Here, the balance of the relevant considerations weighs against the continued
exercise of supplemental jurisdiction.

Accordingly, Plaintiff’s state-law claims

against Defendants will be dismissed without prejudice.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the
Court determines that Plaintiff’s federal claims 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). In
addition, Plaintiff’s state law claims against Defendants will be dismissed without
prejudice to Plaintiff’s ability to bring those claims in the state courts.
The Court must next decide whether an appeal of this action would be in good
faith within the meaning of 28 U.S.C. § 1915(a)(3). See McGore v. Wrigglesworth, 114
F.3d 601, 611 (6th Cir. 1997). Although the Court concludes that Plaintiff’s claims
are properly dismissed, the Court does not conclude that any issue Plaintiff might
raise on appeal would be frivolous. Coppedge v. United States, 369 U.S. 438, 445
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(1962). Accordingly, the Court does not certify that an appeal would not be taken in
good faith. Should Plaintiff appeal this decision, the Court will assess the $505.00
appellate filing fee pursuant to § 1915(b)(1), see McGore, 114 F.3d at 610-11, unless
Plaintiff is barred from proceeding in forma pauperis, e.g., by the “three-strikes” rule
of § 1915(g). If he is barred, he will be required to pay the $505.00 appellate filing
fee in one lump sum.
This is a dismissal as described by 28 U.S.C. § 1915(g).
A judgment consistent with this opinion will be entered.

Dated:

January 7, 2022

/s/ Phillip J. Green
PHILLIP J. GREEN
United States Magistrate Judge

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