Johnson #205885 v. Unknown Part(y)(ies) et al
Filing
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OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
PERNIS JOHNSON,
Plaintiff,
Case No. 2:12-cv-351
v.
Honorable Robert Holmes Bell
UNKNOWN PARTIES, et al.,
Defendants.
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OPINION
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983.
The Court has granted Plaintiff leave to proceed in forma pauperis without payment of an initial
partial filing fee. 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, Plaintiff’s action will be dismissed for failure to state a claim.
Factual Allegations
In his complaint, Plaintiff asserts claims against Unknown Health Care Professionals,
Warden J. Larson, and Records Technician Lori Todd. Plaintiff alleges that on May 5, 2003, he was
diagnosed with colon cancer and taken to the Upper Peninsula Medical Center for treatment.
Plaintiff had two tumors removed from his stomach and was told that he would require long-term
treatment for ulcerative colitis.
On April 12, 2012, Plaintiff kited health care services for symptoms of internal
bleeding, dysentry [sic], stomach pain, and blurry vision. Plaintiff was scheduled for a call-out.
However, while waiting to be seen by the nurse, an emergency count was called and all call-outs
were cancelled. Plaintiff states that he was never seen by a health care provider and has been denied
any medical care. Plaintiff states that he continues to receive his folic acid and sulfasalazine1 as
prescribed, but is being denied chronic care treatment and call outs to the doctor.
Plaintiff also alleges that while confined in the Marquette Branch Prison (MBP) for
the past 6 years, he has had all of his special good time credits forfeited. Plaintiff asserts that this
forfeiture has resulted in more than 12 years being added to his maximum outdate. On March 27,
2012, Defendants Todd and Larson filed a time review and disposition sheet that changed Plaintiff’s
maximum outdate in an attempt to add 20 years to Plaintiff’s maximum sentence.
Plaintiff asserts that Defendants’ actions violated his rights under the Eighth and
Fourteenth Amendments. Plaintiff seeks punitive and compensatory damages, as well as declaratory
and injunctive relief.
Sulfasalazine is used to treat bowel inflammation, diarrhea (stool frequency), rectal bleeding,
and abdominal pain in patients with ulcerative colitis, a condition in which the bowel is inflamed.
See http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0000610/.
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Discussion
I.
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, 45-46 (1957)).
While a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include
more than labels and conclusions. Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 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 by
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a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Dominguez v. Corr.
Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009). Because § 1983 is a method for vindicating federal
rights, not a source of substantive rights itself, the first step in an action under § 1983 is to identify
the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994).
As noted above, Plaintiff claims that Unknown Health Care Professionals denied him
needed medical care. 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).
A claim for the deprivation of adequate medical care has an objective and a subjective
component. Farmer v. Brennan, 511 U.S. 825, 834 (1994). To satisfy the objective component, the
plaintiff must allege that the medical need at issue is sufficiently serious. Id. In other words, the
inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm.
Id. The objective component of the adequate medical care test is satisfied “[w]here the seriousness
of a prisoner’s need[ ] for medical care is obvious even to a lay person.” Blackmore v. Kalamazoo
County, 390 F.3d 890, 899 (6th Cir. 2004). If, however the need involves “minor maladies or
non-obvious complaints of a serious need for medical care,” Blackmore, 390 F.3d at 898, the inmate
must “place verifying medical evidence in the record to establish the detrimental effect of the delay
in medical treatment.” Napier v. Madison County, 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.
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.
Estelle, 429 U.S. 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).
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Plaintiff alleges that he has not been seen by health care providers following the
cancellation of his appointment on April 12, 2012. Plaintiff filed a grievance on this issue and
attaches a copy of the Step III response. According to the step III response by the Bureau of Health
Care Services:
All relevant information within the electronic medical record has
been reviewed. Upon review, of the electronic medical record it is
found the grievant is uncooperative with his health care staff. The
grievant refuses to leave his cell for assessments or has multiple no
shows for evaluations. The grievant has been assessed, evaluated and
provided treatment as determined medically indicated by his qualified
Medical Provider when applicable. Grievant is encouraged to
cooperate with his health care staff and attend all appointments.
(See Docket #1-1, p. 2 of 12.)
The court notes that Plaintiff’s allegations are somewhat vague, and that he fails to
specify any individual responsible for the asserted lack of medical attention. Plaintiff also concedes
that he continues to received medication for his ulcerative colitis. Finally, it appears that the alleged
failure to examine Plaintiff is the result of his own behavior. 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). Where, as here, “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
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);
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Berryman v. Rieger, 150 F.3d 561, 566 (6th Cir. 1998). Therefore, the court will dismiss Plaintiff’s
Eighth Amendment claims.
Plaintiff also claims that Defendants Larson and Todd improperly deprived him of
special good time credits and changed his maximum outdate in an attempt to add 20 years to
Plaintiff’s maximum sentence. However, the court notes that a challenge to the fact or duration of
confinement should be brought as a petition for habeas corpus and is not the proper subject of a civil
rights action brought pursuant to § 1983. See Preiser v. Rodriguez, 411 U.S. 475, 484, 493 (1973)
(the essence of habeas corpus is an attack by a person in custody upon the legality of that custody
and the traditional function of the writ is to secure release from illegal custody). Therefore, to the
extent that Plaintiff’s complaint challenges the fact or duration of his incarceration, it must be
dismissed. See Barnes v. Lewis, No. 93-5698, 1993 WL 515483 (6th Cir. Dec. 10, 1993) (dismissal
is appropriate where § 1983 action seeks equitable relief and challenges fact or duration of
confinement); Moore v. Pemberton, 110 F.3d 22 (7th Cir. 1997) (reasons for not construing a § 1983
action as one seeking habeas relief include (1) potential application of Heck v. Humphrey, 512 U.S.
477 (1994), (2) differing defendants, (3) differing standards of § 1915(a)(3) and § 2253 (c), (4)
differing fee requirements, (5) potential application of second or successive petition doctrine or
three-strikes rules of § 1915(g)).
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Plaintiff’s action will be dismissed for failure to state a claim pursuant to 28 U.S.C.
§§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c).
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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). For the same reasons that the Court dismisses the action, the Court discerns no
good-faith basis for an appeal. Should Plaintiff appeal this decision, the Court will assess the
$455.00 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 $455.00 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: October 17, 2012
/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE
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