Davis #156563 v. Michigan Department of Corrections Bureau of Health Care Services et al

Filing 12

OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

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

GEORGE DAVIS,
Plaintiff,

Case No. 2:13-cv-362

v.

Honorable Gordon J. Quist

MICHIGAN DEPARTMENT
OF CORRECTIONS, 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 immediate 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 George Davis, a state prisoner currently confined at the Detroit Reentry
Center, filed this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims that while
he was confined at the Chippewa Correctional Facility (URF), Defendants in this action violated his
Eighth Amendment right to receive necessary medical care. As Defendants, Plaintiff names the
Michigan Department of Corrections (MDOC), MDOC Director Daniel Heyns, URF Warden Jeffrey
Woods, Deputy Warden Connie Hurtun, Deputy Warden Thomas Mackie, Dr. Unknown Bartoski,
Physician Assistant M. Milette, Penny Filion, R.N., Melissa LaPlaunt, R.N., Wendy Ball, R.N.,
Unknown Fisher, R.N., Theresa Merlings, R.N., Patricia Lamb, R.N., S. Laughhunn, R.N., Unknown
Bonnee, R.N., Amy MacDowell, R.N., L. Nagorny, R.N., Samantha Belonga, R.N., Grievance
Coordinator M. McLean, and Unknown Parties.
Plaintiff alleges that on March 18, 20, and 25, 2013, he complained that Defendants
Woods, Hurtun and Unknown Nurses retaliated against him and conspired to deny him medical
treatment, despite charging him a $5.00 co-pay. On March 29, 2013, Plaintiff complained to
Defendant Murlin and other health care providers that he was in constant pain due to bullet
fragments lodged in his skull. On April 8, 2013, Plaintiff’s grievance number URF 13-04-1085-12D was denied and it was noted in the grievance response that Plaintiff was loud and uncooperative.
Plaintiff contends that the only evidence that he was loud and uncooperative were the statements
made by Defendants. On April 22, 2013, Defendant McLean rejected Plaintiff’s grievance number
URF 13-04-1267-28-C pursuant to Policy Directive 03.02.130 because his grievance included more
than one issue. Plaintiff asserts that all of the issues included in his grievance are directly related
to the same incident. Plaintiff’s step II appeal was denied by Defendant Woods. Plaintiff’s step III
appeal was also denied.
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On April 14, 2013, Plaintiff filed grievance URF 13-04-1201-12-E-1, asserting that
he was suffering from headaches due to bullet fragments lodged in his skull and that Defendants
were refusing to provide treatment. On April 2013, in an unnamed, unsigned response to Plaintiff’s
grievance, Defendants Ball, LaPlaunt, Woods, Hurtun, Bartoski, Fisher, and Murlin refused to
provide treatment and/or pain medications to Plaintiff. In addition, the response indicated that
Plaintiff had declined an evaluation with the nurse, but there was no evidence to support that
assertion. Plaintiff claims that the nurse refused to evaluate him and spoke to him in a humiliating
manner. Plaintiff attempted to file separate grievances regarding the conduct, but Defendant
McLean refused to process the request. Plaintiff’s step II grievance appeal was denied by Defendant
Lamb. Plaintiff’s step III appeal was rejected as vague by Defendant Laughhunn.
On May 23, 2013, Plaintiff filed grievance number URF 13-05-5164-12-E-1,
asserting that he had been denied adequate medical care for his headaches. Plaintiff claimed that
he had told the nurse that he was being forced to trade his food for prescription pain medications and
that she had refused to help him, and had merely terminated the visit. Plaintiff’s grievance was
denied at step I on May 30, 2013. Defendant Lamb denied Plaintiff’s step II grievance appeal. On
October 21, 2013, Defendant Laughhunn confirmed that Plaintiff was consuming other inmates
medications, but stated that Plaintiff’s concerns had been appropriately addressed by the step I and
II responses. Plaintiff concedes that he is allowed to purchase over-the-counter pain medications,
but that these medications are not sufficient to relieve his pain. Moreover, Plaintiff states that he
is often indigent and cannot purchase medications if he does not have sufficient funds.

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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, 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
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.
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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).
Plaintiff claims that Defendants violated his rights under the Eighth Amendment.
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 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).
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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.
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).

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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). If “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 Rouster v. Saginaw Cnty., 749 F.3d 437, 448 (6th
Cir. 2014); Perez v. Oakland Cnty., 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). “Where the claimant received
treatment for his condition, as here, he must show that his treatment was ‘so woefully inadequate
as to amount to no treatment at all.’” Mitchell v. Hininger, No. 13-5315, slip op. at 4-5 (6th Cir.
Apr. 4, 2013) (quoting Alspaugh v. McConnell, 643 F.3d 162, 169 (6th Cir. 2011)).
In this case, Plaintiff claims that Defendants violated his rights when they refused
to provide him with prescription pain medication as treatment for his headaches. Plaintiff fails to
allege any specific facts regarding the history of his condition and treatment. Plaintiff merely asserts
that he suffers from headaches as a result of bullet fragments and that he requires prescription
strength pain medication. According to the step I response to grievance number URF 13-04-108512-D1, which is dated April 8, 2013:
The patient’s primary complaint is that on March 18, 2013 and March
26, 2013 his complaints of pain were not addressed.
Investigation of the patient’s complaint and the patient’s electronic
medical record shows that during the transfer intake on March 18,
2013 the patient did complain of pain. Documentation shows that he
was loud and uncooperative with the nurses attempt to address his
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issues and therefore no evaluation was completed. The patient was
evaluated by the medical provider on March 26, 2013 for complaints
of headaches. The patient told the medical provider the [sic] he had
been taking pain medications from other inmates. The patient was
educated on the dangers of taking other patients [sic] medications.
The medical provider advised the patient that he should follow the
recommendation [sic] treatment plan of the pain management
committee. Disagreement with the recommended treatment plan
does not support the patient’s allegations of denial of treatment.
Chippewa Correctional facility health care is adequately prepared to
meet the patient’s health care needs. The patient has been advised to
follow the recommendations of care and request follow up care as
necessary.
See docket #1-1, p. 18 of 40.
Plaintiff also attaches a copy of the May 6, 2013, step II response to grievance
number 13-04-1085-12-D1 to his complaint. This response states:
Grievant claims that he has been denied adequate treatment for pain
and that all staff “worked together in concert to racially deprive me
of fair medical treatment.” Grievant claims “their intentions are to
inflict pain upon my (Black African American) person.” Grievant
asserts that he needs to see a specialist.
Investigation determined that grievant’s issue was appropriately
addressed by the Step I Respondent and is affirmed at the Step II
Appeal. Review of the electronic medical record reveals that
grievant has been evaluated on multiple occasions related to this
issue and related to grievant’s insistence on receiving Ultram and / or
Neurontin. It is noted that Ultram was discontinued upon the
recommendation of the Pain Management Committee. There is no
record that Neurontin was ever prescribed for grievant. An alternate
treatment plan is in place as deemed appropriate by the medical
providers.
While grievant’s concern re: his symptoms is acknowledged, grievant
is reminded that a disagreement with the plan of care does not
constitute a denial of treatment. Grievant is assured that those
interventions deemed medically necessary will be ordered. Grievant
is encouraged to follow the plan of care as instructed.

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Grievant’s claims of denial of care and discrimination are not
supported.
Grievant is encouraged to submit a CHJ-549 Health Care Request for
evaluation should any adverse symptoms persist or worsen.
See docket #1-1, p. 23 of 40.
According to the step I response to grievance number URF 13-05-1646-12-E1:
The patient’s primary complaint is he was denied treatment for head,
throat and neck pain on May 16, 2013. He states that nurse was
unprofessional in conduct during the visit.
Investigation of the patient’s primary complaint and the patient’s
electronic medical record indicates the patient was evaluated for the
above complaints by the nurse on May 16, 2013. The patient
indicated he was exchanging food for other inmates’ pain medication
because he has been denied pain medication from health care. The
patient was advised to purchase over the counter medications from
the store and has saline spray ordered for chronic sinus symptoms.
The visit was terminated by the nurse prior to any further assessment
due to the patient becoming agitated.
See docket #1-1, p. 26 of 40. This response was affirmed at step II. Id. at p. 27 of 40. In the step
III response, Defendant Laughhunn stated:
All relevant information within the electronic medical record has
been reviewed. Step I and Step II appropriately addressed this
grievance and are affirmed at the Step III appeal. Grievant is also
educated, consuming medication ordered for other inmates is
inappropriate and considered contraband. Grievant is encouraged to
seek over the counter medication though [sic] his prisoner store or
seek evaluation and treatment through his health care clinic.
Disagreement with the treatment plan provided does not constitute a
denial of care.
Id. at p. 28 of 40.
Plaintiff also attaches a copy of the June 13, 2013, step I response to grievance
number URF 13-06-1782-12-D3, which addressed Plaintiff’s complaint that he had been denied a

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referral to the Pain Management Committee and had been denied Ultram for pain relief. The
grievance respondent stated:
Investigation of the patient’s complaint and the patient’s electronic
medical record indicates the patient was evaluated by the medical
provider on June 11, 2013 for head/neck pain and chronic care. The
medical provider did not find a medical indication for Ultram to be
prescribed. The patient continues to be a poor candidate for the use
of non-formulary pain medications. The medical provider followed
the Pain Management Committee recommendations from February
14, 2013. The recommendations included Ultram to be discontinued
as the patient has been found diverting Ultram on more than one
occasion in the past. The patient was recommended to purchase
medications from the store if desired.
Id. at p. 32 of 40.
On July 8, 2013, Defendant Lamb noted in the step II response that Plaintiff had
already been referred to the Pain Management Committee, and that his case had most recently been
reviewed on February 13, 2013. Defendant Lamb stated that there was no current indication to
repeat the referral. Id. at p. 35 of 40. In the October 28, 2013, step III response, Defendant
Laughhunn stated:
Grievant alleges his request for evaluation by the Pain Management
Committee has been inappropriately denied.
All relevant information within the electronic medical record has
been reviewed. The Pain Management Committee (PMC) is a
resource available to the Medical Providers to further assist in
determining appropriate treatment plans for prisoners. The PMC is
not a resource available to the prisoners and they cannot initiate or
request PMC review. The Medical Provider is the medical authority
and is responsible to manage the treatment plan of the patient.
Disagreement with the treatment plan does not constitute a denial of
care.
Id. at p. 34 of 40.

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A review of the pleadings in this case clearly shows that Plaintiff’s condition has
been evaluated by medical personnel and that he continues to be monitored by such personnel.
Plaintiff was previously prescribed Ultram for pain, but it was discontinued after he had been found
diverting it on more than one occasion. Plaintiff’s condition was reviewed by the Pain Management
Committee, who determined that Plaintiff’s condition did not warrant prescription pain medication.
It is clear from the record that Defendants gave Plaintiff’s requests for Ultram and Neurontin due
consideration and concluded that Plaintiff should not be prescribed these medications at that time.
Such facts do not support a finding that Defendants were deliberately indifferent to Plaintiff’s
medical needs. Therefore, Plaintiff’s Eighth Amendment claims are properly dismissed.
Plaintiff also makes a conclusory assertion that Defendants retaliated against him.
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, 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 what protected conduct he was engaging in that
motivated Defendants to want to retaliate against him. Nor does Plaintiff allege any facts showing
that Plaintiff’s conduct was the result of any improper retaliatory intent. Therefore, Plaintiff’s
retaliation claims are properly dismissed.
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Finally, the Court notes that Defendants Heyns, Woods, Hurtun, Mackie, and
McLean were not involved in the denial of Plaintiff’s requests for prescription pain medication and
that their only roles in this action involve the denial of administrative grievances or the failure to
act. Defendants Heyns, Woods, Hurtun, Mackie, and McLean cannot be liable for such conduct
under § 1983. Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999), cert. denied, 530 U.S. 1264,
120 S. Ct. 2724 (2000).
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
$505.00 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 $505.00 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: September 5, 2014

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
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