Hardy #159525 v. Sizer et al
Filing
9
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
DAVID HARDY,
Plaintiff,
Case No. 2:15-cv-135
v.
Honorable R. Allan Edgar
MATTHEW SIZER, 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. 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 David Hardy, a former prisoner currently residing in Pontiac, Michigan, filed
this civil rights action pursuant to 42 U.S.C. § 1983 against Defendants Matthew Sizer, RN, Russell
DeFreitas, RN, Dawn Eicher, RN, Shannon Martin, RN, Patricia Lamb, RN, S. Langhhunn, RN,
Grievance Section Manager Richard D. Russell, Physician’s Assistant Unknown Luttrell, J. Schad,
RN, Health Unit Manager Unknown Jenkins, Deputy Warden Unknown Lesatz, Unknown Party #1,
RN, Dr. Unknown Berhane, Unknown Carr, RN, Warden Catherine Bauman, Unknown Corning,
RN, S. Buskirk, RN, Health Unit Manager Ann Karp, Subrina Aiken, RN, and Dr. Unknown
Abdellatif.
Plaintiff alleges that he has suffered with flat feet his entire life. As far back as 2008,
Plaintiff alerted prison health services that the state issue shoes were causing damage to his feet,
ankles, and knees. Plaintiff asserts that if Defendants had provided him with medically issued
athletic shoes, he would have avoided much of the damage to his health. Plaintiff claims that as a
result of having to wear the state issue shoes, he required two surgeries to alleviate some of the pain
and damage. Plaintiff asserts that Defendants’ conduct violated the Eighth Amendment and seeks
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, 47 (1957)). While
a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include more
-2-
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. 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 Eighth Amendment rights when they
failed to provide him with the “medically necessary shoes” that he required. The Eighth Amendment
-3-
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 the plaintiff’s claim, however, is based on “the prison’s
failure to treat a condition adequately, or where the prisoner’s affliction is seemingly minor or
non-obvious,” Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 898 (6th Cir. 2004), the plaintiff 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) (internal quotation
marks omitted).
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
-4-
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).
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
-5-
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 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). “Where the claimant received treatment for
his condition, he must show that his treatment was ‘so woefully inadequate as to amount to no
treatment at all.’” Mitchell v. Hininger, 553 F. App’x 602, 605 (6th Cir. 2013) (quoting Alspaugh
v. McConnell, 643 F.3d 162, 169 (6th Cir. 2011)).
Plaintiff states that he filed a series of grievances on Defendants relating to problems
with his shoes. Plaintiff attaches copies of the grievances and responses to his complaint. Plaintiff
also attaches copies of his health care requests and kite responses. In January of 2010, Dr. John C.
Pollina, M.D., indicated that over the previous five years, Plaintiff had suffered from cervical strain,
lumbar strain, TMJ syndrom, right shoulder tendonitis, cervical disc herniation, and lumbar disc
herniation. (ECF No. 1-1, PageID.60.) In 2010 and 2011, Plaintiff kited health care with complaints
of pain in his back, neck, knees, ankles, shoulders. (ECF No. 1-1, PageID.61-62, 64-70.) X-rays of
Plaintiff’s knees were normal in June of 2011. (ECF No. 1-1, PageID.63.) In late 2011, Plaintiff
began complaining of feet and ankle pain due to state issue shoes. (ECF No. 1-1, PageID.67-68.)
Plaintiff apparently has “hammer toe.” (ECF No. 1-1, PageID.52, 85.) In a November 8, 2011, kite
response, it was noted that deep toe box shoes had already been ordered and would be given to
Plaintiff upon arrival. (ECF No. 1-1, PageID.68.) In response to a step II grievance appeal,
Defendant Bauman stated that Plaintiff had been seen by Defendant Berhane on October 13, 2011,
-6-
and that he had submitted a request for deep toe box shoes, which had been ordered and would be
provided to Plaintiff upon arrival. (ECF No. 1-1, PageID.57.)
In 2012 and 2013, Plaintiff continued to complain that the shoes he had been issued
were causing extremely painful corns, that he had an infection between his toes, that his ankles were
swollen, and his knees popped and caused him pain. (ECF No. 1-1, PageID.75-77, 79-83.) On April
20, 2012, Defendant Lamb responded to a step II grievance appeal by stating:
Grievant claims that he has been denied adequate treatment for knee,
ankle and foot pain which he states is the result of wearing state
shoes.
Extensive review of the electronic medical record reveals that
grievant has been evaluated on multiple occasions by many different
providers re: his pain issue. The Pain Management Committee has
been consulted and recommendations implemented. It has been
determined that grievant does not qualify for medically issued athletic
shoes. An accommodation for Deep Toe Box shoes was approved re:
grievant’s hammer toes.
Grievant is advised that it is well within the providers’ scope of
practice to determine what interventions are necessary and
appropriate to address grievant’s symptoms. Grievant is advised to
follow the plan of care as instructed.
Grievant’s claim of inadequate treatment is not supported.
(ECF No. 1-1, PageID.52.)
Plaintiff subsequently received the Deep Toe Box shoes. On April 21, 2013, Plaintiff
filed a grievance asserting that his shoes were worn out and that they had holes in them which started
in December of 2012. Plaintiff claimed that he had requested “deep pocket” shoes on four occasions
and had been told to contact the quartermaster. (ECF No. 1-1, PageID.40.) The response to the step
I grievance by Defendant Shannon Martin states:
-7-
The grievant was interviewed and reported his issue is that he is being
denied medical shoes. In review of the medical record it is
documented that the patient was seen for complaints of foot pain on
12/27/12. The patient was assessed and noted to have a callous on
the second digit of his left foot that was irritated from rubbing. The
patient was again assessed for complaints of foot pain in response to
a kite on 3/9/13. The RN issued a basin for foot soaks and instructed
him to buy corn pads at the store. On 3/20/13 the patient was in
healthcare for his annual health screen. On 4/2/13 the patient was
seen for a kite received on 3/31/13 for complaints of foot pain.
During this assessment it was noted that the patient was in need of
new shoes and the RN indicated that they would be ordered. On
4/4/13 an order for Deep toe box shoes size 15.5A was placed to MSI.
The patient was again seen on 4/19/13 at which time he was told that
the shoes had not arrived and if there was a problem that healthcare
would make sure that they were ordered. It was explained to the
patient during this interview that the shoes take 4-6 weeks for
delivery. There is no indication that the patient has been denied
medical shoes. The grievance is denied.
(ECF No. 1-1, PageID.41.)
Plaintiff filed a step II appeal and Defendant Lamb responded that Plaintiff’s shoes
had not yet arrived and would be forwarded to IBC (Bellamy Creek Correctional Facility), where
Plaintiff had been transferred, when they arrived. (ECF No. 1-1, PageID.42, 44.) On July 18, 2013,
while at IBC, Plaintiff filed a grievance on Defendant Corning, complaining that he had denied him
fungal cream for an infection between his toes and merely told Plaintiff to start wearing socks. (ECF
No. 1-1, PageID.34.) Defendant Buskirk responded to the grievance, stating:
The grievant and Nurse Corning were interviewed and the medical
record was reviewed. The Grievant stated that he saw Nurse Corning
two weeks ago and that he did nothing for his feet. The medical
record indicated that he was evaluated by Nurse Corning on 7/18/13
and there was no treatment needed for the Grievant’s feet. Grievant
was encouraged to wear socks in his shoes and that he may purchase
antifungal cream from the store if needed.
-8-
MP (medical provider) looked at Grievant feet with this writer today
and stated that he needed to keep his feet clean and dry and to
continue to wear his socks. If he has any more problems then he will
need to send in a health care request to be re-evaluated.
The grievance [is] denied. Grievant has been evaluated and the
treatment that he is requesting is not medically indicated at this time.
Grievant disagreement with this medical conclusion does not support
his claim that he has been denied treatment.
(ECF No. 1-1, PageID.35.)
On August 29, 2013, Defendant Aiken responded to Plaintiff’s step II appeal of
grievance IBC 2013 07 2097 12E3, stating:
Upon investigation of the EMR (Electronic Medical Records),
Grievant was seen by RN on 7/18 for Multiple foot complaints; corns,
shoes rubbing on top of toes, sores between toes, blisters on bottom
of feet. RN indicates; Has deep toe box shoes but says they still rub
on the tops of his toes. Not wearing socks; says they are all worn out
and the quartermaster won’t give him another pair. He was strongly
advised to wear what he has for now and get with the quartermaster
to obtain more socks. No blisters noted. Wearing corn pads on two
toes; asking for more. I told him we do not have corn pads. He
shows me between his toes; the skin is whitened but intact w/o
bleeding or open areas. Advised to obtain antifungal medication from
the store. He was not happy with this and wanted us to provide the
medication and to “make” the quartermaster issue new socks. RN
instructed Mr. Hardy to kite if signs and symptoms of infection
develop or symptoms that do not subside.
Grievant was instructed, per OP 03.04.100C, Pharmacy Services
and Medication Management; Refers prisoners to the store to
purchase OTC medications that are not medically necessary; e.g.,
medicated shampoo, moisturizing lotions/creams, ibuprofen or
acetaminophen for occasional headaches or muscle strain, antacids,
stool softeners, high fiber bowel regulating agents, antifungal cream,
antihistamines, decongestants, vitamins unless documented
deficiency or TB prophylaxis, anti-itch cream for mild symptoms.
Per Prisoner Accounting, as it pertains to Indigence status, June 2013
denied [due to] unemployed since 10/3/12. Grievant was approved
-9-
effective July 1st, 2013 for $9.92 based on May 25th to June 24th
activity. Effective August 1st he was approved for $0.20 indigent
pay, as he had $10.80 in prior month receipts (school payroll for
June). On September 1st, will be approved for $11.00.
Prisoners shall be provided with a continuum of medically necessary
health care services that are supported by evidence based medical
research. Grievant is being evaluated, treated, diagnostic testing
conducted and monitored by the Medical Provider (MP). The MP is
responsible for determining the most appropriate course of treatment
for his patients taking into consideration all information available.
The MP’s treatment plan for the grievant demonstrates that was done
in this case. A disagreement with the medical judgment of the MP
does not support a claim that the treatment plan is inappropriate.
Grievant is encouraged to access health care through the kite process
to address any current health care concerns.
(ECF No. 1-1, PageID.38.) Plaintiff’s step III appeal was denied because his complaints were based
solely on Plaintiff’s disagreement with the clinical judgment of the medical provider. (ECF No. 1-1,
PageID.39.)
A review of the kite responses attached to Plaintiff’s complaint show that he was
scheduled to see the nurse in April, June, July, September, and November of 2013, after Plaintiff
complained of pain in his feet, knees, ankles, and back. (ECF No. 1-1, PageID.77-83.) Plaintiff was
also seen by the RN in June and December of 2014, in order to have medications refilled, his feet
examined, and his cane adjusted. (ECF No. 1-1, PageID.87-89.) On December 24, 2014, Plaintiff
kited that he had received new shoes on December 22, 2014, but that they were too small. The RN
responded that Plaintiff’s kite would be forwarded to the quartermaster because the medical only
provides accommodations, the shoes are actually ordered by the quartermaster. (ECF No. 1-1,
PageID.91-92.) On February 9, 2015, Plaintiff kited that he had been experiencing itching and rash
on both legs, and that he had developed a cyst on his knee. A nurse visit was scheduled. (ECF No.
- 10 -
1-1, PageID.93.) On June 21, 2015, Plaintiff kited that he needed a refill for the corn cushions
because his shoes continued to hurt his feet. Plaintiff also complained that the cyst on his left knee
cap was very painful. (ECF No. 1-1, PageID.94.) On July 15, 2015, Plaintiff had minor surgery on
his knee to remove the cyst. (ECF No. 1-1, PageID.95.) Plaintiff was released on parole on October
27, 2015. (Http://mdocweb.state.mi.us/OTIS2/otis2profile.aspx?mdocNumber=159525.)
In this case, Plaintiff suffered from hammer toe. Plaintiff was given special shoes to
address this condition. It is clear from the record that Plaintiff suffered from a variety of
musculoskeletal ailments as far back as 2002. (ECF No. 1-1, PageID.60.) It is also apparent from
the record that while he was incarcerated, Plaintiff was seen and treated by medical personnel on
numerous occasions for complaints regarding his feet, knees, ankles, back, and other wide ranging
medical issues. Plaintiff was provided with deep toe box shoes to accommodate his hammer toe.
Plaintiff’s sole complaint in this case is that he did not receive the specific shoes that he requested.
Plaintiff fails to allege any specific facts in support of his claim that the failure to provide athletic
shoes was the cause of serious medical problems with his feet, ankles, and knees. In addition, as
noted above, where a prisoner has 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, 553 F.
App’x at 605 (quoting Alspaugh, 643 F.3d at 169). Because the record shows that Plaintiff’s
treatment was not sufficiently inadequate to amount to no treatment at all as required to implicate
the Eighth Amendment, Plaintiff’s claims are properly dismissed.
- 11 -
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: 5/31/2016
/s/ R. Allan Edgar
R. ALLAN EDGAR
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?