Colston #230362 v. Matthews

Filing 52

ORDER ADOPTING REPORT AND RECOMMENDATION 48 ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN N O R T H E R N DIVISION M A R K COLSTON, P l a in tif f , v. DORENE MATTHEWS, D e f e n d a n t. _________________________________/ O P I N IO N ADOPTING REPORT AND RECOMMENDATION T h is is a prisoner civil rights action filed pursuant to 42 U.S.C. § 1983. Defendant f il e d a motion for summary judgment (docket #26). The matter was referred to the F I L E NO. 2:08-CV-107 H O N . ROBERT HOLMES BELL

M a g istra te Judge, who issued a Report and Recommendation (R&R), recommending that this C o u rt grant Defendant's motion and enter judgment for Defendant (docket #48). The matter p re se n tly is before the Court on Plaintiff's objections to the R&R (docket #51). For the re a so n s that follow, Plaintiff's objections are rejected and the R&R is adopted as clarified by th is Opinion. I. T h i s Court reviews de novo those portions of an R&R to which objections are made. 2 8 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The Court may accept, reject or modify any or a ll of the Magistrate Judge's findings or recommendations. Id. On a motion for summary judgment, a court must consider all pleadings, depositions, a f f id a v its and admissions and draw all justifiable inferences in favor of the party opposing

t h e motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 ( 1 9 8 6 ). The court, however, "'need not accept as true legal conclusions or unwarranted f a c tu a l inferences.'" Michigan Paytel Joint Venture v. City of Detroit, 287 F.3d 527, 533 (6th C ir. 2002) (quoting Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987)). T h e party moving for summary judgment has the burden of pointing the court to the absence o f evidence in support of some essential element of the opponent's case. Celotex Corp. v. C a tre tt, 477 U.S. 317, 323 (1986); Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th C ir. 1989). Once the moving party has made such a showing, the burden is on the

n o n m o v i n g party to demonstrate the existence of a genuine issue for trial. Id. Summary ju d g m e n t is appropriate when the record reveals that there are no genuine issues as to any m a te ria l fact in dispute and the moving party is entitled to judgment as a matter of law. FED. R . CIV. P. 56(c); Kocak v. Community Health Partners of Ohio, Inc., 400 F.3d 466, 468 (6th C ir. 2005). In order to prove that a triable issue exists, the nonmoving party must do more than re ly upon allegations, but must come forward with specific facts in support of his or her c la im . Celotex, 477 U.S. at 322; Mulhall v. Ashcroft, 287 F.3d 543, 550 (6th Cir. 2002). A p a rty opposing a motion for summary judgment "may not merely recite the incantation, 'c re d ib ility,' and have a trial in the hope that a jury may believe factually uncontested proof." F o g e ry v. MGM Holdings Corp., Inc., 379 F.3d 348, 353 (6th Cir. 2004). After reviewing th e whole record, the court must determine "whether the evidence presents a sufficient

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d i sa g r e e m e n t to require submission to a jury or whether it is so one-sided that one party must p r e v a il as a matter of law." Booker v. Brown & Williamson Tobacco Co., Inc., 879 F.2d 1 3 0 4 , 1310 (6th Cir. 1989) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1 9 8 6 )). "'[D]iscredited testimony is not [normally] considered a sufficient basis'" for d e f e a tin g the motion. Anderson, 477 U.S. at 256-57 (quoting Bose Corp. v. Consumers U n io n of United States, Inc., 466 U.S. 485, 512 (1984)). In addition, where the factual co n te x t makes a party's claim implausible, that party must come forward with more p e rs u a s iv e evidence demonstrating a genuine issue for trial. Celotex, 477 U.S. at 323-24; M a tsu sh ita , 475 U.S. at 586-87; Street, 886 F.2d at 1480. "A mere scintilla of evidence is in s u f f ic ie n t; 'there must be evidence on which a jury could reasonably find for the [nonm o v a n t ].'" Daniels v. Woodside, 396 F.3d 730, 734 (6th Cir. 2005) (quoting Anderson, 477 U .S . at 252). II. P la in tif f alleged in his complaint that, while he was a prisoner at Ojibway Correctional F a c ility (OCF), he received constitutionally inadequate mental health care. He alleged that D e f en d a n t, an OCF social worker, violated the Eighth Amendment by discontinuing one-ono n e counseling sessions with Plaintiff and concluding that Plaintiff was not clinically eligible f o r a referral to the Outpatient Mental Health Program. The Magistrate Judge determined th a t Defendant was entitled to summary judgment on Plaintiff's Eighth Amendment claim. T h e Magistrate Judge also concluded that Plaintiff was not entitled to the removal of

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a lle g e d ly false information from his medical file. In addition, the Magistrate Judge found th a t Plaintiff made only conclusory allegations to support his equal protection and retaliation c la im s . Finally, the Magistrate Judge concluded that Plaintiff's claims for compensatory and p u n itive damages for emotional injuries were barred by 42 U.S.C. § 1997e(e). In his objections, Plaintiff first argues that Defendant is not entitled to summary ju d g m e n t on the Eighth Amendment claim because he introduced sufficient evidence to c re a te a genuine issue of material fact concerning the reason Defendant refused to continue m e n ta l health counseling. Specifically, Plaintiff claims that he filed an affidavit stating that D e f en d a n t told him that she had discontinued his visits after receiving instructions from c o rre c ti o n al officers who were interested in minimizing evidence of Plaintiff's depression a ris in g out of an admitted sexual assault by a prison guard. T h e Eighth Amendment prohibits the infliction of cruel and unusual punishment ag ains t those convicted of crimes. U.S. Const. amend. VIII. The Eighth Amendment o b lig ates 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 o f f ic ia l is deliberately indifferent to the serious medical needs of a prisoner. Id. at 104-05; C o m s to c k 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 c o m p o n e n t. Farmer v. Brennan, 511 U.S. 825, 834 (1994). To satisfy the objective

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c o m p o n e n t, 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 s u b s ta n tia l risk of serious harm. Id. The objective component of the adequate medical care te st is satisfied "[w]here the seriousness of a prisoner's need[ ] for medical care is obvious e v e n to a lay person." Blackmore v. Kalamazoo County, 390 F.3d 890, 899 (6th Cir. 2004). If , however the need involves "minor maladies or non-obvious complaints of a serious need f o r medical care," Blackmore, 390 F.3d at 898, the inmate must "place verifying medical e v id e n c e in the record to establish the detrimental effect of the delay in medical treatment." N a p ie r v. Madison County, Ky., 238 F.3d 739, 742 (6th Cir. 2001). T h e Court has reviewed the Magistrate Judge's reasoning and finds no error. Plaintiff w a s seen by Defendant on a numerous occasions over a period of five months in response to his complaints of depression. He was offered written materials on coping with depression, a n x ie ty and sexual assault. Plaintiff was seen in the medical unit and was offered

m e d ic a tio n , which he refused. The Sixth Circuit distinguishes "between cases where the c o m p la in t 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). Where, as here, "a prisoner has received some medical attention and the d is p u te is over the adequacy of the treatment, federal courts are generally reluctant to second g u e s s medical judgments and to constitutionalize claims which sound in state tort law." Id.; s e e also Perez v. Oakland County, 466 F.3d 416, 434 (6th Cir. 2006); Kellerman v. Simpson,

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2 5 8 F. App'x 720, 727 (6th Cir. 2007); McFarland v. Austin, 196 F. App'x 410 (6th Cir. 2 0 0 6 ); Edmonds v. Horton, 113 F. App'x 62, 65 (6th Cir. 2004); Brock v. Crall, 8 F. App'x 4 3 9 , 440 (6th Cir. 2001); Berryman v. Rieger, 150 F.3d 561, 566 (6th Cir. 1998). No reaso n a b le factfinder could conclude that Defendant was deliberately indifferent to Plaintiff's s e rio u s medical need. P la in tif f next objects that the Magistrate Judge erred in concluding that Plaintiff had n o due process right to have allegedly false information removed from his prison mental h e a lth file. The Magistrate Judge accepted Plaintiff's argument that, under the reasoning of P a in e v. Baker, 595 F.2d 197 (4th Cir. 1979), an inmate has a limited right to have i n f o r m a t i o n expunged from his prison file. See also Johnson v. CCA-Northeast Ohio C o r r e c tio n a l Center Warden, No. 00-4483, 2001 WL 1109487, at *1 (6th Cir. Sept. 14, 2 0 0 1 ) (citing Paine); Maiden v. Johnson, No. 98-1479, 1000 WL 507027, at *1 (6th Cir. June 1 0 , 1999) (same); Draughn v. Green, No. 97-1263, 1999 WL 164915, at *2 (6th Cir. Mar. 1 2 , 1999) (same) (all unpublished). In Paine, the Fourth Circuit held that, in order to e sta b lish a right to expunge information, the prisoner must show that the information is a c tu a lly in his file, that it is false and that the information is relied on to a constitutionally s ig n if ic a n t degree. Paine, 595 F.2d at 201-02. The court held that, to demonstrate reliance to a constitutionally significant degree, an inmate must show that he has a liberty interest at s ta k e so that the due process clause is implicated. Id. at 202. The facts underlying Paine in v o lv e d the prisoner's disciplinary record, which arguably could have implicated his due

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p ro c e s s interest in his parole. Id. (distinguishing other administrative actions such as transfer to another facility or classification status, which are not within the ambit of the Due Process C lau se ); see also Johnson v. Rodriguez, 110 F.3d 299, 308 n.13 (5th Cir. 1997) (noting that, af ter Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 442 U.S. 1 (1979), which re je c te d the existence of a freestanding due process right to be fairly considered for parole, th e continuing viability of the Paine decision is highly dubious).1 P lain tiff argues that Defendant's progress report of May 5, 2007 ­ which allegedly f a ls e ly indicated that Plaintiff was coping with his situational stressors and that clinical e v id e n c e did not support a referral to outpatient mental health ­ is being used to label P la in tif f as a threat to security, which prevents him from being eligible for certain programs a n d job assignments. The Supreme Court has held that a prisoner does not have a protected liberty interest in the procedures affecting his classification and security because the resulting re stra in t does not impose an "atypical and significant hardship on the inmate in relation to th e ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484 (1995). In a d d itio n , the Supreme Court repeatedly has held that a prisoner has no constitutional right to be incarcerated in a particular facility or to be held in a specific security classification. See O lim v. Wakinekona, 461 U.S. 238, 245 (1983); Moody v. Daggett, 429 U.S. 78, 88 n.9

Plaintiff does not directly state that his medical records will be used against him in a parole hearing. However, to the extent he intends to raise such a claim, he fails to demonstrate a constitutional interest. The Sixth Circuit has expressly held that, in Michigan, because a prisoner has no liberty interest in parole, the parole board's reliance on false information does not implicate the due process clause. See Caldwell v. McNutt, 158 F. App'x 739, 741 (6th Cir. 2006). -7-

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(1 9 7 6 ); Meachum v. Fano, 427 U.S. 215, 228-29 (1976). Further, federal courts consistently h a v e found that prisoners have no constitutionally protected liberty interest in prison v o c a tio n a l, rehabilitation, and educational programs based on the Fourteenth Amendment. See, e.g., Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976) (Due Process Clause not implicated b y prisoner classification and eligibility for rehabilitative programs, even where inmate su f f e rs "grievous loss"); Newsom v. Norris, 888 F.2d 371, 374 (6th Cir. 1989) (no c o n stitu tio n a l right to prison employment); Ivey v. Wilson, 832 F.2d 950, 955 (6th Cir. 1987) (" [ N ]o prisoner has a constitutional right to a particular job or to any job"); Antonelli v. S h e a h a n , 81 F.3d 1422, 1431 (7th Cir. 1996) (participation in a rehabilitative program is a p riv ileg e that the Due Process Clause does not guarantee); Rizzo v. Dawson, 778 F.2d 527, 5 3 1 (9th Cir. 1985) (no constitutional right to rehabilitative services); Carter v. Morgan, No. 9 7 -5 5 8 0 , 1998 WL 69810, at *2 (6th Cir. Feb. 10, 1998) (no constitutional right to e d u c a tio n a l classes); Tribell v. Mills, No. 93-5399, 1994 WL 236499, at *1 (6th Cir. June 1, 1 9 9 4 ) ("no constitutional right to vocational or educational programs"). Because Plaintiff h a s no liberty interest in his classification or in any program or job, Plaintiff has no due p ro c e ss right to the expungement of the allegedly false medical record. In his third objection, Plaintiff contends that has adequately supported an equal p ro te c tio n claim because Defendant allegedly told him that, if he was female, his sexual a ss a u lt by a corrections officer would have been treated differently and would have resulted in criminal charges. Assuming Defendant made such a comment, the comment does not

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s u p p o rt Plaintiff's claim that Defendant herself engaged in conduct that deprived Plaintiff of h is right to equal protection. Moreover, such a comment by a mental health treatment p ro v id e r constitutes insufficient evidence for a jury to conclude that some unnamed person tre a te d Plaintiff differently than any similarly situated female. The Magistrate Judge's d e ter m in a tio n was patently correct. In his fourth objection, Plaintiff contends that the Magistrate Judge erroneously c o n c lu d e d that Plaintiff failed to demonstrate a genuine issue of material fact on his re ta lia tio n claim. The Court has fully reviewed the reasoning of the Magistrate Judge and fin d s no error. F in a lly, Plaintiff asserts that the Magistrate Judge erred by concluding that Plaintiff's c o m p e n s a to ry and punitive damages were barred by 42 U.S.C. § 1997e(e). The Court finds n o merit in Plaintiff's objection. III. H a v in g considered each of Plaintiff's objections and finding no error, the Court hereby d e n ies Plaintiff's objections and adopts the Report and Recommendation of the Magistrate J u d g e , as clarified by this Opinion. Accordingly, the Court will grant Defendant's motion for su m m a ry judgment and enter judgment for Defendant. A Judgment consistent with this O p in io n shall be entered.

Dated: June 19, 2009

/s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE -9-