Choice #306273 v. Heyns et al

Filing 5

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

MOSES CHOICE,
Plaintiff,

Case No. 2:13-cv-87

v.

Honorable R. Allan Edgar

DANIEL HEYNS 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. 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, the Court will dismiss Plaintiff’s complaint for failure
to state a claim against all of the named Defendants, except Defendant Filion. The Court will serve
the complaint against Defendant Filion.

Discussion
I.

Factual allegations

Plaintiff is incarcerated in the Muskegon Correctional Facility, but the events giving
rise to his complaint occurred at the Kinross Correctional Facility (KCF). In his pro se complaint,
Plaintiff sues the following KCF employees: Warden Thomas Mackie; Nurse Practitioner Susan
Wilson; Registered Nurses Penny Filion, Chris Henson, Matt Sizer and Carol Williams; Corrections
Officer (Unknown) Hack; and Warden Secretary Kathy Atkinson. Plaintiff also sues Michigan
Department of Corrections (MDOC) Director Daniel Heyns, MDOC Assistant Director Richard
McKeon and PHS/CMS Health Care Providers.
On or about October 4, 2010, Plaintiff scraped his left knee during recreational
activities. Two days later, Plaintiff was awakened by pain in his knee. On October 7, Plaintiff sent
a medical kite after he noticed a bloody discharge from the wound. The following day, Defendant
Filion examined and dressed the wound in sterile gauze. Defendant Filion did not believe that the
wound was infected, nevertheless, she swabbed the wound for a culture. Plaintiff claims that when
he returned to health services to have his bandages changed on October 9, Defendant Filion was
hostile towards him and told him that he was overreacting to his injury and made threatening
comments, such as, “‘You’re the kind that end up in ad seg by annoying us.’” (Compl. ¶ 11, docket
#1, Page ID#8.) When Plaintiff asked to see another nurse, Filion responded, “‘Either you see me
or no one at all.’” (Compl. ¶ 13, Page ID#9.) Plaintiff was afraid of being put in segregation, so he
declined the appointment.
On October 12, 2010, the culture test results for Plaintiff’s wound were positive for
Methicillin-resistant staphylococcus aureus (MRSA). The following day, Plaintiff was called out
for a new bandage dressing and a prescription for antibiotics. Plaintiff also was placed in quarantine
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from October 13 through 21, 2010. His next medical appointment was scheduled for November 6,
2010.
Plaintiff does not make any other allegations regarding what transpired between his
release from quarantine on October 21 and December 9, 2010, when he was placed back in
quarantine for the second time as a result of his MRSA-infected wound. On December 13, 2010,
while Plaintiff was in quarantine, Defendant Hack allegedly overheard Plaintiff ask the unit porter
for an extra cup that Plaintiff could use to heat up a cup of water in the microwave. Hack interrupted
the conversation and shouted, “‘You’re not going to put a MRSA infected water bottle in the
microwave!’” (Compl. ¶ 17, Page ID#10.) Also during the second quarantine, Plaintiff was
prescribed an anti-bacterial nasal spray. Defendants Williams and Sizer visited Plaintiff daily to
administer the nasal spray and change the dressings on Plaintiff’s wound. One day, Defendant Filion
came to visit Plaintiff instead of the other nurses. Plaintiff claims that Filion was hostile toward him
because he had filed a grievance against her. When Plaintiff reminded Filion about the nasal spray,
Filion told him that the doctor had discontinued the nasal spray prescription. Plaintiff did not argue
with Filion for fear of retaliation. The next day, Plaintiff asked Defendant Williams if the doctor had
discontinued the nasal spray prescription. Williams said “no” and administered the spray.
Plaintiff contends that Defendants were deliberately indifferent to his serious medical
needs by failing to provide timely and adequate treatment for his MRSA infection. Plaintiff alleges
that Defendants’ failure to properly treat his infection has resulted in physical and psychological pain
and injury. In addition, Plaintiff asserts that Defendant Hack violated department policy and
committed a “medical breach of confidentiality” when he referred to Plaintiff’s medical condition
in front of another prisoner. Plaintiff seeks declaratory relief, as well as monetary damages.

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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, 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
a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Street v. Corr.

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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 Heyns, McKeon, PHS/CMS, Wilson, Mackie, Henson
and Atkinson

Plaintiff fails to make specific factual allegations against Defendants Heyns, McKeon,
PHS/CMS and Wilson, other than his claim that they failed to take measures to prevent their
subordinates from violating Plaintiff’s federal rights. 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). A claimed constitutional
violation must be based upon active unconstitutional behavior. Grinter v. Knight, 532 F.3d 567, 575
(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 575; 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. Plaintiff
has failed to allege that Defendants Heyns, McKeon, PHS?CMS or Wilson engaged in any active
unconstitutional behavior. Accordingly, he fails to state a claim against them.
Plaintiff also fails to make any specific factual allegations whatsoever against
Defendants Mackie, Henson and Atkinson. It is a basic pleading essential that a plaintiff attribute
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factual allegations to particular defendants. See Twombly, 550 U.S. at 544 (holding that, in order
to state a claim, Plaintiff must make sufficient allegations to give a defendant fair notice of the
claim). Where a person is named as a defendant without an allegation of specific conduct, the
complaint is subject to dismissal, even under the liberal construction afforded to pro se complaints.
See Frazier v. Michigan, 41 F. App’x 762, 764 (6th Cir. 2002) (dismissing Plaintiff’s claims where
the complaint did not allege with any degree of specificity which of the named defendants were
personally involved in or responsible for each alleged violation of rights); Griffin v. Montgomery,
No. 00-3402, 2000 WL 1800569, at *2 (6th Cir. Nov. 30, 2000) (requiring allegations of personal
involvement against each defendant)); Rodriguez v. Jabe, No. 90-1010, 1990 WL 82722, at *1 (6th
Cir. June 19, 1990) (“Plaintiff’s claims against those individuals are without a basis in law as the
complaint is totally devoid of allegations as to them which would suggest their involvement in the
events leading to his injuries.”); see also Eckford-El v. Toombs, 760 F. Supp. 1267, 1272-73 (W.D.
Mich. 1991). Because Plaintiff fails to even mention Defendants Mackie, Henson and Atkinson in
the body of his complaint, his allegations fall far short of the minimal pleading standards under FED.
R. CIV. P. 8 (requiring “a short and plain statement of the claim showing that the pleader is entitled
to relief”). Plaintiff, therefore, also fails to state a claim against Defendants Mackie, Henson and
Atkinson.
B.

Defendants Sizer and Williams

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.

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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).
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.
Plaintiff alleges that during his second quarantine, Defendants Williams and Sizer
administered the prescribed nasal spray and changed the bandages on his wound. Plaintiff does not

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allege that these nurses denied him medical care, nor does he allege any conduct supporting a claim
of deliberate indifference. Plaintiff, therefore, fails to state an Eighth Amendment claim against
Defendants Williams and Sizer.
C.

Defendant Hack

Plaintiff asserts that Defendant Hack violated department policy and committed a
“medical breach of confidentiality” when he referred to Plaintiff’s medical condition in front of
another prisoner. Specifically, Hack allegedly yelled at Plaintiff in front of a unit porter, “‘You’re
not going to put a MRSA infected water bottle in the microwave!’” (Compl. ¶ 17, Page ID#10.)
There is a constitutional right to informational privacy under the Fourteenth
Amendment, but the Sixth Circuit has limited that right “‘only to interests that implicate a
fundamental liberty interest.’” Wurzelbacher v. Jones–Kelley, 675 F.3d 580, 586 (6th Cir. 2012)
(quoting Lambert v. Hartman, 517 F.3d 433, 440 (6th Cir. 2008) (internal quotation marks and
citation omitted)). A plaintiff alleging a violation of his informational privacy rights must
demonstrate that “‘the interest at stake relates to those personal rights that can be deemed
fundamental or implicit in the concept of ordered liberty.’” Id. (quoting Bloch v. Ribar, 156 F.3d
673, 684 (6th Cir. 1998) (internal quotation marks and citation omitted)); see also Lee v. City of
Columbus, 636 F.3d 245, 260 (6th Cir. 2011); J.P. v. DeSanti, 653 F.2d 1080, 1087–91 (6th Cir.
1981).
Applying the foregoing standard, the Sixth Circuit repeatedly has rejected claims
asserting a constitutional right to non-disclosure of personal information. See, e.g., Lee, 636 F.3d
at 261 (city’s requirement that employees returning from sick leave disclose the “nature of [their]
illness” to their immediate supervisors does not implicate a fundamental right); Summe v. Kenton

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Cnty. Clerk's Office, 604 F.3d 257, 270–71 (6th Cir. 2010) (county’s release of medical record of
deputy county clerk pursuant to an open records request did not implicate a right fundamental or
implicit in the concept of ordered liberty so as to violate constitutional right to privacy); Barber v.
Overton, 496 F.3d 449, 455–57 (6th Cir. 2007) (release of guards’ birth dates and social security
numbers to prisoners did not rise to constitutional level); Coleman v. Martin, 63 F. App’x 791, 793
(6th Cir. 2003) (dissemination of prisoner’s mental health records to parole board was not a
constitutional violation); Jarvis v. Wellman, 52 F.3d 125, 126 (6th Cir.1 995) (disclosure of rape
victim’s medical records to an inmate did not violate her constitutional privacy rights); DeSanti, 653
F.2d at 1091 (constitutional rights not violated by dissemination of juvenile delinquents’ social
histories to various state agencies). Indeed, the court “has recognized a constitutionally-protected
informational-privacy interest in only two circumstances: (1) where the release of personal
information may lead to bodily harm, and (2) where the released information relates to matters ‘of
a sexual, personal, and humiliating nature.’ ” Wurzelbacher, 675 F.3d at 586 (quoting Lambert, 517
F.3d at 440).
Plaintiff does not allege that Hack’s reference to Plaintiff’s MRSA infection in front
of another prisoner put Plaintiff at risk of bodily harm, or involved information of a sexual, personal,
and humiliating nature. Moreover, because MRSA is spread by contact, it was reasonable for Hack
to be concerned about Plaintiff’s use of a microwave that also was being used by other prisoners and
staff.1 Furthermore, none of Plaintiff's allegations meaningfully distinguish his case from Lee,
Summe, Coleman, or Jarvis, in which the Sixth Circuit held that the disclosure of medical
information did not violate the plaintiff’s constitutional right to privacy. See Lee, 636 F.3d at 261
1

While it is unclear from Plaintiff’s complaint, it seems improbable that other prisoners were unaware of
Plaintiff’s placement in quarantine and the medical reason for the quarantine.

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(“[W]e have not yet confronted circumstances involving the disclosure of medical records that, in
our view, are tantamount to the breach of a ‘fundamental liberty interest’ under the Constitution.”).
Plaintiff, therefore, fails to state an informational privacy claim against Defendant Hack.
To the extent Plaintiff asserts a violation of MDOC policy, Defendant’s alleged
failure to comply with an administrative rule or policy does not itself rise to the level of a
constitutional violation. Laney v. Farley, 501 F.3d 577, 581 n.2 (6th Cir. 2007); Smith v. Freland,
954 F.2d 343, 347-48 (6th Cir. 1992); Barber v. City of Salem, 953 F.2d 232, 240 (6th Cir. 1992);
McVeigh v. Bartlett, No. 94-23347, 1995 WL 236687, at *1 (6th Cir. Apr. 21, 1995) (failure to
follow policy directive does not rise to the level of a constitutional violation because policy directive
does not create a protectable liberty interest). Section 1983 is addressed to remedying violations of
federal law, not state law. Lugar v. Edmondson Oil Co., 457 U.S. 922, 924 (1982); Laney, 501 F.3d
at 580-81.
Moreover, to the extent that Plaintiff’s complaint presents claims under state law, this
Court declines to exercise jurisdiction over the state law claims. “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 state law claims should be dismissed without reaching
their merits.” Coleman v. Huff, No. 97-1916, 1998 WL 476226, at *1 (6th Cir. Aug. 3, 1998) (citing
Faughender v. City of N. Olmsted, Ohio, 927 F.2d 909, 917 (6th Cir. 1991)); see also Landefeld v.
Marion Gen. Hosp., Inc., 994 F.2d 1178, 1182 (6th Cir. 1993).
D.

Defendant Filion

The Court finds that Plaintiff’s allegations are sufficient to warrant service of the
complaint against Defendant Filion.

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Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Defendants Heyns, McKeon, PHS/CMS, Mackie, Wilson, Hack, Henson, Sizer,
Williams and Atkinson 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 will serve the complaint against
Defendant Filion.
An Order consistent with this Opinion will be entered.

Dated:

4/18/2013

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

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