O'Brien #484428 v. Michigan Department of Corrections et al

Filing 19

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

JOE O’BRIEN,
Plaintiff,

Case No. 2:13-cv-131

v.

Honorable R. Allan Edgar

MICHIGAN DEPARTMENT
OF CORRECTIONS, 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, and Plaintiff has paid the 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 Joe O'Brien, a state prisoner currently confined at the Newberry Correctional
Facility, filed this civil rights action pursuant to 42 U.S.C. § 1983 against Defendants Michigan
Department of Corrections, Corizon Health, Inc., Regional Medical Officer William Borgerding,
Dale E. Asche, M.D., Lizabeth Ralles, M.D., Jeffrey W. Bomber, M.D., Richard D. Russell, M.D.,
Lorenz P. Kielhorn, M.D., Joshua Schad, R.N., Unknown Shullick, M.D., Aster Berhane, M.D., and
Garcia Clinical Laboratory, Inc.
In Plaintiff’s complaint, he alleges that in 1997-1998, while on active duty in the
United States Marine Corps, he was diagnosed as having Hypogonadotropic Hypogonadism1 (HH).
Plaintiff asserts that HH causes a deficiency in testosterone, which can cause decreased libido,
erectile dysfunction, a decline in cognitive skill, awareness, and brain function, sleep disturbance,
vasomotor instability, drastic mood swings, depression, anger, decreased lean body mass, increased
visceral fat, testicular atrophy, gynecomastia, and nutritional deficiencies. In addition, testosterone
deficiency increases the odds of coronary artery disease.
Plaintiff states that during the initial stages of his treatment in 1997-1998, he received
testosterone injections and HCG [human chorionic gonadotropin] three times per week for over a
year. Plaintiff alleges that this therapy was successful in developing his testis to a “functional” size.
Thereafter, Plaintiff received testosterone injections as a maintenance program. In 2010, while
Plaintiff was in quarantine at Jackson Prison, he was told by medical staff that “all” hormonal

Hypogonadotropic hypogonadism (HH) is a form of hypogonadism that is due to a problem
with the pituitary gland or hypothalamus. See http://www.nlm.nih.gov/medlineplus/ency/article
/000390.htm.
1

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treatment would start at Plaintiff’s primary facility, and that because his hormonal therapy had begun
prior to his incarceration, it would be continued.
Plaintiff arrived at the Newberry Correctional Facility (NCF) on February 25, 2010,
and filed a health care request form. Plaintiff was told that he would be seen no later than March 4,
2010. Plaintiff made another health care request on March 22, 2010, and on March 25, 2010,
Defendant Bomber ordered weekly testosterone injections. Plaintiff claims that there were errors
in the injections and that it wore off very quicky, causing him to suffer from migraines. On April
8, 2011, Plaintiff kited health services to see why his medical call-out had been cancelled. Plaintiff
was told that he would be seen on April 8, 2011. On April 11, 2011, Plaintiff was rescheduled for
a medical call-out because his medication was not available.
On April 12, 2011, Plaintiff filed a grievance regarding the deprivation of his
testosterone injections. The step I response to the grievance indicated that the medication had
expired and that blood work would be ordered at the end of April. The May 5, 2011, step II response
indicated that blood work had not yet been completed. On May 21, 2011, Plaintiff filed a health care
request, complaining that he had not received a testosterone injection in either April or May. On
June 28, 2011, Plaintiff filed a health care request, seeking to be seen by Defendant Bomber and an
endocrinologist.
On July 11, 2011, Defendant Shullick went over Plaintiff’s lab results with him, and
told Plaintiff that the results were “ideal.” Plaintiff pointed out that he had begun receiving weekly
injections again. Defendant Shullick ordered a follow-up blood draw, which was taken a few days
after Plaintiff received a testosterone injection, causing the results to be at a peak level. However,
Defendant Shullick refused to discuss the matter with Plaintiff. On July 18, 2011, Plaintiff submitted
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a health care request to see Defendant Bomber and an endocrinologist, to no avail. On July 21, 2011,
Plaintiff filed a grievance asserting deliberate indifference to a serious medical need. In the
grievance, Plaintiff complained about being switched to weekly injections based on lab results which
indicated that his labs were “ideal.” Plaintiff wished to be maintained on the treatment plan which
had been implemented prior to his incarceration. Plaintiff also asked to be seen by Defendant
Bomber.
On August 8, 2011, Plaintiff was seen by Defendant Bomber and lab work was
ordered. Plaintiff discussed his concerns regarding peaks and lows in his testosterone levels and
Defendant Bomber told him that he would go over the lab results and reschedule an appointment for
August 29, 2011. On August 15, 2011, Plaintiff received a response to his grievance, which
indicated that the current medical plan was therapeutic and that Plaintiff had been referred to
Defendant Bomber. On August 22, 2011, Plaintiff filed a step II appeal seeking continued weekly
injections, even if the dosage needed to be divided. The step II response indicated that Defendant
Bomber had been consulted regarding the best approach to achieve target testosterone levels.
On September 12, 2011, Plaintiff submitted a health care request for an appointment
with Defendant Bomber. On October 10, 2011, Plaintiff filed another health care request seeking
to have his follow-up appointment with Defendant Bomber, stating that he was still suffering from
migraines and other discomfort. On October 14, 2011, Plaintiff did not receive his scheduled
injection, so he filed another grievance against Defendants Shullick and Bomber asserting deliberate
indifference. On October 25, 2011, Plaintiff received a response to his grievance, stating that
Plaintiff’s medication was due to expire, labs had been requested, and that treatment had been
deferred. Plaintiff filed a step II appeal and on November 4, 2011, he received a response which
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indicated that his weekly testosterone injections had a stop date of January 20, 2012. Plaintiff filed
health care kites on October 31, 2011, November 6, 20, and 25, 2011, complaining that he continued
to suffer “hormonal imbalance issues.” On November 27, 2011, Plaintiff wrote a letter to Defendant
Berhane regarding staff’s failure to give him weekly injections. On November 28, 2011, Plaintiff’s
step III grievance appeal was denied.
On November 30, 2011, Plaintiff filed a grievance asserting deliberate indifference
by Defendants Shullick, Berhane, and Borgerding. Plaintiff claims that their actions caused delays
in his treatment for over two months, which caused Plaintiff to suffer a hormonal imbalance. On
December 18, 2011, Plaintiff filed a health care request. Plaintiff fails to allege what, if any,
response he received. On December 20, 2011, Plaintiff received a step I response to his grievance,
which stated that all medication was being deferred until new blood work could be drawn.
According to Plaintiff, the response also stated that the Regional Medical Officer “does not make
changes based on new blood work, but old Extreme low testosterone reading and reference range
changes Garcia Labs needs to be questioned.” On December 27, 2011, Plaintiff filed a step II
grievance appeal, asserting that the step I response was misleading. Plaintiff stated that health
services failed to reschedule his appointment after they instructed Plaintiff to return to his unit and
failed to take responsibility for denying Plaintiff his medication. Plaintiff states that this misconduct
was done in retaliation for his use of the grievance system. Plaintiff filed a step III appeal asserting
that the Regional Medical Officer made changes in his treatment based on budgetary concerns, rather
than on Plaintiff’s medical needs.
On January 17, 2012, Plaintiff filed another health care request, complaining that he
was “suffering.” On January 20, 2012, Plaintiff missed his injection because no medication was
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available. Plaintiff was told that the doctor would call him later in the day, but Plaintiff was never
called out. Plaintiff filed a grievance. On January 22, 2012, Plaintiff attempted to talk to Defendant
Berhane about medical treatment.

However, Defendant Berhane used “insults, threats and

intimidation tactics to force Plaintiff into dropping the subject of medical care.”
On January 26, 2012, Plaintiff filed a grievance on Defendants Berhane and
Borgerding asserting that they acted with deliberate indifference. Plaintiff also grieved the fact that
Defendant Berhane threatened Plaintiff in order to get him to drop his complaints. Plaintiff also filed
another health care request, seeking the contact information for the laboratory used by the prison.
On February 3, 2012, the step I grievance response reviewed the peaks and troughs of Plaintiff’s
testosterone levels. On February 15, 2012, Physician’s Assistant Matthew Luttrell met with Plaintiff
and informed him that he would request that Plaintiff receive daily treatment. On February 23, 2012,
Plaintiff filed a Freedom of Information Act (FOIA) request, seeking the contact information for the
laboratory used by the prison.
On February 29, 2012, Plaintiff gave durable power of attorney to his father, Francis
Richard Mead. On March 8, 2012, Mr. Mead filed a formal FOIA request for laboratory results from
Garcia Laboratory. Plaintiff filed a grievance regarding the denial of daily treatment and appealed
the rejection / denial of this grievance to step III. On March 10, 2012, Plaintiff was transferred to
the Ojibway Correctional Facility (OCF). On March 16, 2012, Defendant Borgerding ended all
treatment for Plaintiff’s hypogonadism, as well as his prescription for vitamin D. Plaintiff claims
that he had been receiving vitamin D because of a deficiency related to low testosterone. Plaintiff
claims that this decision was motivated by a desire to retaliate against Plaintiff for filing grievances
and that it was a conscious choice to emasculate Plaintiff.
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On March 22, 2012, Defendant Asche informed Plaintiff of Defendant Borgerding’s
decision to defer Plaintiff’s treatment. Plaintiff was charged a $5 co-pay, despite the fact that he was
not actually examined. Plaintiff requested continued treatment, complaining that he was suffering
from pain in his nipples and testicles, to no avail. Plaintiff filed a grievance against Defendants
Asche and Ralles asserting a violation of the ADA (Americans with Disabilities Act) and the Eighth
Amendment.
On April 4, 2012, Plaintiff was seen by Defendant Ralles for pain in his nipples and
testicles.

Defendant Ralles examined Plaintiff and concluded that he suffered from

“gynocomastca2.” Defendant Ralles did not examine Plaintiff’s testicles. Plaintiff requested
continuation on hormone therapy, stating that he was extremely distressed because of his body’s
failure to function like a normal man. Plaintiff was subsequently seen by a psychologist, who stated
that testosterone has nothing to do with depression. Plaintiff filed a grievance.
On April 27, 2012, Plaintiff received a step II response to a grievance regarding the
cessation of treatment, which stated that Defendant Borgerding had documented that such treatment
was not medically necessary. In addition, it was stated that “no medical services will be provided
for preestablished hormonal services prior to incarceration.” Plaintiff filed a formal complaint with
the Legislative Ombudsman’s office, who declined to investigate, stating that medical services were
available to Plaintiff at the prison, and that it did not have the medical expertise to challenge the
decision of medical professionals. Plaintiff also filed a complaint with the U.S. Department of
Justice, who indicated that they did not have the resources to investigate Plaintiff’s complaint.

2

The court assumes that Plaintiff intended to say that he suffered from gynecomastia, which is swelling of the
breast tissue in boys or men, caused by an imbalance of the hormones estrogen and testosterone. See http://
www.mayoclinic.com/health/gynecomastia/DS00850.

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On October 22, 2012, Plaintiff was seen by Defendant Asche. Plaintiff complained
that he was suffering and requested to be placed back on hormone therapy. Defendant Asche asked
Plaintiff what his ERD3 [estrogen-receptor downregulator] level was and Plaintiff responded that it
was 2014. Defendant Asche stated that Plaintiff would “make it” without hormone therapy.
Defendant Asche did not examine Plaintiff. Plaintiff states that his testicles have atrophied and that
he is developing breasts, which have caused sexual predators to make advances toward Plaintiff.
Plaintiff contends that he now has to fear for his safety.
Plaintiff states that Defendants have violated his rights under the First, Eighth and
Fourteenth Amendments, as well as the ADA. Plaintiff seeks compensatory and punitive damages,
as well as declaratory and injunctive relief.
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, 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

3

Estrogen receptor downregulators, called ERDs for short, block the effects of estrogen in breast tissue. ERDs
are used in the prevention and treatment of certain types of breast cancer. See http://www.breastcancer.org/
treatment/hormonal/erds.

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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).
Initially, the court notes that Plaintiff has named the Michigan Department of
Corrections as a Defendant. Plaintiff may not maintain a § 1983 action against the Michigan
Department of Corrections. Regardless of the form of relief requested, the states and their
departments are immune under the Eleventh Amendment from suit in the federal courts, unless the
state has waived immunity or Congress has expressly abrogated Eleventh Amendment immunity by
statute. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-101 (1984); Alabama v.
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Pugh, 438 U.S. 781, 782 (1978); O’Hara v. Wigginton, 24 F.3d 823, 826 (6th Cir. 1993). Congress
has not expressly abrogated Eleventh Amendment immunity by statute, Quern v. Jordan, 440 U.S.
332, 341 (1979), and the State of Michigan has not consented to civil rights suits in federal court.
Abick v. Michigan, 803 F.2d 874, 877 (6th Cir. 1986). In numerous unpublished opinions, the Sixth
Circuit has specifically held that the MDOC is absolutely immune from suit under the Eleventh
Amendment. See, e.g., McCoy v. Michigan, 369 F. App’x 646, 653-54 (6th Cir. 2010); Turnboe v.
Stegall, No. 00-1182, 2000 WL1679478, at *2 (6th Cir. Nov. 1, 2000). In addition, the State of
Michigan (acting through the Michigan Department of Corrections) is not a “person” who may be
sued under § 1983 for money damages. See Lapides v. Bd. of Regents, 535 U.S. 613 (2002) (citing
Will v. Mich. Dep’t of State Police, 491 U.S. 58 (1989)).
Moreover, to state a constitutional claim against Corizon pursuant to 42 U.S.C. §
1983, Plaintiff must specifically allege the existence of a policy, practice, or custom by Corizon that
is allegedly unconstitutional. A review of Plaintiff’s complaint shows that he has failed to make any
such allegations. Accordingly, Plaintiff’s claims against Defendant Corizon are properly dismissed.
Ferguson v. Corizon, 2013 WL 4758196, 7 (E.D. Mich. 2013).
With regard to Plaintiff’s claims that individual Defendants were deliberately
indifferent to a serious medical need, the court concludes that this claim lacks merit. 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

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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.
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). In this
case, Plaintiff has attached voluminous copies of grievances, health care requests, and letters to his
complaint, as well as responses to those items. A review of the record reveals that Plaintiff was seen
by medical personnel on numerous occasions and had blood draws to monitor his testosterone levels.
Plaintiff’s complaint is solely with the decision to decrease and eventually discontinue his
testosterone injections.

On February 15, 2012, Defendant Borgerding noted that Plaintiff’s

testosterone injections could be decreased from 200 mg every two weeks to 200 mg every four weeks
because blood levels two weeks after injection were “mid-range/therapeutic per UpToDate protocol.”

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Therefore, more frequent injections were not necessary. See docket #1-1, p. 54 of 60. On March 16,
2012, Defendant Borgerding noted that Plaintiff’s treatment with injectable testosterone was being
deferred because “[p]ost puberty testosterone is indicated for treating libido and secondary sex
characteristics. Not medically necessary in this case.” See docket #1-1, p. 59 of 60.
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). The court concludes that Plaintiff’s Eighth Amendment
claims against the individual Defendants are properly dismissed.
Plaintiff also claims that Defendants’ conduct was motivated by a desire to retaliate
against him for his use of the grievance procedure. 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. Id. Moreover, 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)).
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Filing a grievance is constitutionally protected conduct under the First Amendment.
See Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001); Noble v. Schmitt, 87 F.3d 157, 162 (6th
Cir. 1996). Plaintiff, however, cannot show that his medical treatment, including the discontinuation
of his testosterone injections, was an adverse action taken against him from filing a grievances.
Nor does Plaintiff allege facts showing that Defendants were actually motivated by
a desire to retaliate against him. Temporal proximity may be “‘significant enough to constitute
indirect evidence of a causal connection so as to create an inference of retaliatory motive.’”
Muhammad v. Close, 379 F.3d 413, 417-18 (6th Cir. 2004) (quoting DiCarlo v. Potter, 358 F.3d
408, 422 (6th Cir. 2004)). However, “[c]onclusory allegations of temporal proximity are not
sufficient to show a retaliatory motive.” Skinner v. Bolden, 89 F. App’x 579, 580 (6th Cir. 2004).
Moreover, Muhammad does not stand for the proposition that temporal proximity
alone is sufficient to create an issue of fact as to retaliatory motive.
In Muhammad the Sixth Circuit did not resolve the issue, but merely
observed that “temporal proximity alone may be ‘significant enough
to constitute indirect evidence of a causal connection so as to create
an inference of retaliatory motive.’” Id. at 418 (quoting DiCarlo v.
Potter, 358 F.3d 408, 422 (6th Cir.2004) (emphasis added). Even if
temporal proximity may in some cases create an issue of fact as to
retaliatory motive, it would only be sufficient if the evidence was
“significant enough.” Plaintiff’s conclusory and ambiguous evidence
is not “significant enough” to create an issue of fact as to retaliatory
motive.
Brandon v. Bergh, 2010 WL 188731, slip op. at 1 (W.D. Mich., Jan. 16, 2010). Therefore, the court
concludes that Plaintiff’s retaliation claims are properly dismissed.
In addition, Plaintiff appears to be asserting that Defendants violated his substantive
due process rights. In order to state a viable substantive due process claim premised upon the

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arbitrary use of governmental power, plaintiff must show at a minimum that intentional
governmental conduct which “shocks the conscience” or interferes with rights “implicit in the
concept of ordered liberty.” See e.g. United States v. Salerno, 481 U.S. 739, 746 (1987); Nobles v.
Brown, 985 F.2d 235, 236-237 (6th Cir. 1992). In the Sixth Circuit, these standards require that
plaintiff establish that he has been deprived of a fundamental right and that the defendants were more
than simply negligent. See generally, Nobles, supra; Newell v. Brown, 981 F.2d 880 (6th Cir. 1992),
cert. denied 510 U.S. 842 (1993); Sutton v. Cleveland Board of Education, 958 F.2d 1339, 13501351 (6th Cir. 1992); Charles v. Baesler, 910 F.2d 1349 (6th Cir. 1990) (Hillman, sitting by special
designation); see also Nishiyama v. Dickson County, 814 F.2d 277, 282 (6th Cir. 1987). Plaintiff
must show that defendants’ conduct was egregious, shocking to the conscience, or otherwise
transcending all bounds of reasonable behavior. Williams v. Smith, 717 F. Supp. 523 (W.D. Mich.
1989) (Hillman, C.J.). Plaintiff has failed to allege such behavior.
Plaintiff contends that Defendants’ conduct deprived him of his rights under the ADA
[Americans with Disabilities Act]. Title II of the ADA provides
. . . that “no qualified individual with a disability shall, by reason of
such disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public entity, or
be subjected to discrimination by any such entity.” § 12132 (2000
ed.). A “‘qualified individual with a disability’” is defined as “an
individual with a disability who, with or without reasonable
modifications to rules, policies, or practices, the removal of
architectural, communication, or transportation barriers, or the
provision of auxiliary aids and services, meets the essential eligibility
requirements for the receipt of services or the participation in
programs or activities provided by a public entity.” § 12131(2). The
Act defines “‘public entity’” to include “any State or local
government” and “any department, agency, . . . or other instrumentality of a State,” § 12131(1). [The
Supreme Court has] previously held that this term includes state prisons. See Pennsylvania Dep’t
of Corr. v. Yeskey, 524 U.S. 206, 210 (1998).
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United States v. Georgia, 546 U.S. 151, 153-54 (2006). Thus, to state a claim under the ADA, a
plaintiff must show that he is “(1) disabled under the statute, (2) otherwise qualified for participation
in the program, [services or activities], and (3) being excluded from participation in, denied the
benefits of, or subjected to discrimination under[,] the program, [services, or activities] by reason
of his disability.” S.S. v. E. Ky. Univ., 532 F.3d 445, 453 (6th Cir. 2008). The MDOC is not
necessarily immune from a damages claim under the ADA, because Title II abrogates state sovereign
immunity for claims based on “conduct that actually violates the Fourteenth Amendment[.]”
Georgia, 546 U.S. at 159.
Assuming that Plaintiff’s Hypogonadotropic Hypogonadism (HH) is a disability under
the ADA, Plaintiff does not allege that he has been discriminated against, or that he has been unable
to participate in or receive the benefit of a service, program, or activity available to other inmates
by reason of that disability. Instead, Plaintiff merely claims that he was deprived of specific
medications, which he had been receiving prior to his incarceration. This claim is properly analyzed
under the Eighth Amendment. As noted above, Plaintiff’s allegations do not rise to the level of an
Eighth Amendment violation. Therefore, the ADA claim will be dismissed.
To the extent that plaintiff is claiming his state law rights were violated, the court will
refuse to exercise pendent jurisdiction over such claims. Claims raising issues of state law are best
left to determination by the state courts, particularly in the area of prison administration. In addition,
pendent jurisdiction over state law claims cannot be exercised after all federal claims have been
dismissed. United Mine Workers v. Gibbs, 383 U.S. 715, 726-727 (1966); Smith v. Freland, 954
F.2d 343, 348 (6th Cir.), cert. denied, 504 U.S. 915 (1992).
Conclusion
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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:

1/2/2014

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