Racine v. Unknown Part(y)(ies) #1 et al

Filing 17

OPINION ; signed by Judge R. Allan Edgar (Judge R. Allan Edgar, cam)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION

DAMIEN K. RACINE,
Plaintiff,

Case No. 2:13-cv-65

v.

Honorable R. Allan Edgar

UNKNOWN PART(Y)(IES), et al.,
Defendants.
____________________________________/
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
Plaintiff Damien K. Racine, a prisoner confined at the Marquette County Jail, filed
this civil rights action pursuant to 42 U.S.C. § 1983 against Defendants Unknown Part(y)(ies) #1
named as Jail Staff, Captain Gregg Gustafson, R.N. Leigh Freeberg, Unknown Part(y)(ies) #2 named
as Correctional Healthcare MQT Co. Jails Health Care Contractor, Sheriff Elect Mike Lovelace,
Undersheriff Jack Schneider, Jail Medical Doctor Steven Dood, Jail Nurse Practitioner Angela Rose,
and the Marquette County Jail.
In Plaintiff’s complaint, he alleges that he suffers from back pain, ADHD, and severe
anxiety is being denied treatment by a qualified medical doctor and is being treated by Defendant
Freeberg, which is inconsistent and inadequate.
Plaintiff attaches numerous exhibits, including copies of Health Service Request
Forms and Individual Rules Violation Reports, which show that Plaintiff was accused of snorting
Artane, which was one of his medications, on February 5, 2013. (Docket #1-1, pp. 17-18 of 30.)
On February 6, 2013, the medication Neurontin was substituted for Artane. Plaintiff complained and
was told that Neurontin was appropriate for his medical condition. (Docket #1-1, p. 13 of 30.) On
February 5, 2013, Officer Deidrich saw Plaintiff standing in front of the urinal and snorting inwardly
through his nose. Officer Deidrich observed that Plaintiff’s eyes were watery and that there was a
white powdery residue and a piece of what looked like a white pill on the top of the urinal. Plaintiff
stated that the white powder was cleanser from cleaning. Officer Deidrich retrieved the piece of pill
and placed it in a cup. Plaintiff was then escorted into the hall and questioned. When Officer
Deidrich told Plaintiff that they would test the residue, Plaintiff asked how they could test it.
Plaintiff was returned to the dorm and the Sergeant was notified. Plaintiff then began to claim that
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the white residue was deodorant, and when Officer Deidrich returned to the bathroom, he discovered
a deodorant stick placed on the side of the urinal with some pieces broken off and laying nearby.
Officer Deidrich states that this was not present on the urinal when he removed Plaintiff from the
area. (Docket #1-1, p. 17 of 30.)
On February 15, 2013, health care staff responded to Plaintiff’s request for pain
medication by stating that the physician was continuing to discontinue Plaintiff’s use of Artane and
that he would not authorize an increase in Neurontin. (Docket #1-1, p. 26 of 30.) On February 21,
2013, health care staff responded to Plaintiff’s request for Wellbutrin by stating that this had been
discussed with Plaintiff on February 18, 2013 during his visit with the Nurse Practitioner, and that
it had not been approved. (Docket #1-1, p. 28 of 30.)
Plaintiff claims that Defendants violated his rights under the First, Eighth, and
Fourteenth Amendments. Plaintiff seeks compensatory and punitive damages.
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
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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
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 Defendants violated his Eighth Amendment
rights by allowing him to be treated by Defendant Freeberg, R.N., rather than by a qualified medical
doctor. Plaintiff also claims that Defendants denied him adequate medical care for his back pain,
ADHD, and severe anxiety. 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
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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).
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.

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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.
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). Initially,
the court notes that Plaintiff’s claims regarding his medical condition are entirely conclusory.
Plaintiff fails to allege any specific facts showing that ADHD and anxiety constituted a serious
medical need. With regard to Plaintiff’s back pain, Plaintiff was prescribed pain medication and
continued to receive such medication. After Plaintiff was accused of snorting his Artane, it was
discontinued, but Plaintiff continued to receive Neurontin. Plaintiff continued to be seen by health

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care personnel on a regular basis. The mere fact that Plaintiff was seen by an R.N. rather than by a
medical doctor is insufficient to show that he was denied medical care. 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); Berryman v. Rieger, 150 F.3d 561, 566 (6th Cir. 1998).
Plaintiff also claims that his prescription for Artane was discontinued for misuse of
medication even though there was no concrete evidence that he had misused the medication.
Plaintiff claims that this violated his First Amendment right to be free from retaliation. Retaliation
based upon a prisoner’s exercise of his or her constitutional rights violates the Constitution. See
Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). In order to set forth a First
Amendment retaliation claim, a plaintiff must establish that: (1) he was engaged in protected
conduct; (2) an adverse action was taken against him that would deter a person of ordinary firmness
from engaging in that conduct; and (3) the adverse action was motivated, at least in part, by the
protected conduct. Thaddeus-X, 175 F.3d at 394. Moreover, a plaintiff must be able to prove that
the exercise of the protected right was a substantial or motivating factor in the defendant’s alleged
retaliatory conduct. See Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001) (citing Mount
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). In this case, Plaintiff fails
to allege that he engaged in protected conduct. Therefore, Plaintiff’s retaliation claims are properly
dismissed.
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Plaintiff also appears to be claiming that this conduct constituted a Fourteenth
Amendment procedural due process violation. “The Fourteenth Amendment protects an individual
from deprivation of life, liberty or property, without due process of law.” Bazetta v. McGinnis, 430
F.3d 795, 801 (6th Cir. 2005). To establish a procedural due process violation, a plaintiff must show
that one of these interests is at stake. Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Analysis of
a procedural due process claim involves two steps: “[T]he first asks whether there exists a liberty
or property interest which has been interfered with by the State; the second examines whether the
procedures attendant upon that deprivation were constitutionally sufficient.” Ky. Dep’t of Corr. v.
Thompson, 490 U.S. 454, 460 (1989). The Supreme Court long has held that the Due Process Clause
does not protect every change in the conditions of confinement having an impact on a prisoner. See
Meachum v. Fano, 427 U.S. 215, 225 (1976). In Sandin v. Conner, 515 U.S. 472, 484 (1995), the
Court set forth the standard for determining when a state-created right creates a federally cognizable
liberty interest protected by the Due Process Clause. According to the Sandin Court, a prisoner is
entitled to the protections of due process only when the sanction “will inevitably affect the duration
of his sentence” or when a deprivation imposes an “atypical and significant hardship on the inmate
in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 486-87; see also Jones v.
Baker, 155 F.3d 810, 812 (6th Cir. 1998); Rimmer-Bey v. Brown, 62 F.3d 789, 790-91 (6th Cir.
1995). The court concludes that the denial of one specific medication for back pain, while still
providing another medication for the same purpose, does not rise to the level of an atypical and
significant hardship. Therefore, Plaintiff’s due process claims are properly dismissed.
Finally, Plaintiff claims that Defendants delayed the mailing of the instant complaint
to this court for five days in violation of his right of access to the courts. In Bounds v. Smith, 430
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U.S. 817 (1977), the Supreme Court recognized a prisoner’s fundamental right of access to the
courts. While the right of access to the courts does not allow a State to prevent an inmate from
bringing a grievance to court, it also does not require the State to enable a prisoner to discover
grievances or litigate effectively. Lewis v. Casey, 518 U.S. 343 (1996). Thus, Bounds did not create
an abstract, free-standing right to a law library, litigation tools, or legal assistance. Id. at 351 (1996).
Further, the right may be limited by legitimate penological goals, such as maintaining security and
preventing fire or sanitation hazards. See Acord v. Brown, No. 91-1865, 1992 WL 58975 (6th Cir.
March 26, 1992); Hadix v. Johnson, No. 86-1701, 1988 WL 24204 (6th Cir. March 17, 1988);
Wagner v. Rees, No. 85-5637, 1985 WL 14025 (6th Cir. Nov. 8, 1985).
To state a claim, an inmate must show that any shortcomings in the library, litigation
tools, or legal assistance caused actual injury in his pursuit of a legal claim. Lewis, 518 U.S. at 351;
Talley-Bey, 168 F.3d at 886; Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996); Pilgrim v. Littlefield,
92 F.3d 413, 416 (6th Cir. 1996); Walker v. Mintzes, 771 F.2d 920, 932 (6th Cir. 1985). An inmate
must make a specific claim that he was adversely affected or that the litigation was prejudiced.
Vandiver v. Niemi, No. 94-1642, 1994 WL 677685, at *1 (6th Cir. Dec. 2, 1994). Particularly, an
inmate cannot show injury when he still has access to his legal materials by request, Kensu, 87 F.3d
at 175, when he fails to state how he is unable to replicate the confiscated documents, Vandiver,
1994 WL 677685, at *1, or when he could have received the material by complying with the limits
on property, e.g., where he had the opportunity to select the items that he wanted to keep in his cell,
or when he had an opportunity to purchase a new footlocker that could hold the property. Carlton
v. Fassbender, No. 93-1116, 1993 WL 241459, at *2 (6th Cir. July 1, 1993). In this case, Plaintiff

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is unable to show the requisite injury because he was able to file his lawsuit in this court in a timely
manner. Therefore, Plaintiff’s access to courts claims are properly dismissed.
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).
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:

5/14/2013

/s/ R. Allan Edgar
R. Allan Edgar
United States District Judge