Karn #938055 v. Asche et al
OPINION; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
DONALD LEROY KARN, JR.,
Case No. 2:17-cv-10
Honorable Paul L. Maloney
UNKNOWN ASCHE, et al.,
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 against Defendants Asche, Aho, Willbanks, Lamb, Harbaugh, and Russell for failure to
state a claim.
Plaintiff is presently incarcerated with the Michigan Department of Corrections
(MDOC) at Newberry Correctional Facility (NCF) in Newberry, Luce County, Michigan. The
events about which he complains, however, occurred at the Ojibway Correctional Facility (OCF)
in Marenisco, Gogebic County, Michigan. Plaintiff sues Medical Provider Unknown Asche,
Registered Nurse V. Aho, Health Unit Manager J. Willbanks, Registered Nurse Patricia Lamb,
Registered Nurse R. Harbaugh, and Manager Richard D. Russell.
Plaintiff alleges that he was he denied an accommodation for medically prescribed
athletic shoes by Defendant Asche on August 23, 2016, in violation of the Eighth Amendment.
Plaintiff filed a grievance, which was denied at step I by Defendants Aho and Willbanks.
Plaintiff’s step II grievance appeal was denied by Defendant Lamb on October 5, 2016. Plaintiff’s
step III grievance appeal was denied by Defendant Harbaugh on November 21, 2016. The step III
denial was approved by Defendant Russell. Plaintiff seeks damages and equitable relief.
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); Street v. Corr.
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
Initially the Court notes that Plaintiff fails to make specific factual allegations
against Defendants Aho, Willbanks, Lamb, Harbaugh, and Russell, other than his claim that they
failed to conduct an investigation in response to his grievances. 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, 575-76 (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 576; 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[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
Aho, Willbanks, Lamb, Harbaugh, and Russell engaged in any active unconstitutional behavior.
Accordingly, he fails to state a claim against them.
Plaintiff alleges that Defendant Asche refused to provide him with medically issued
athletic shoes or to be evaluated for such shoes by an outside specialist. 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
A[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 Athe 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 Aplace 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 Aa
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 Aentails something more
than mere negligence,@ Farmer, 511 U.S. at 835, but can be Asatisfied by something less than acts
or omissions for the very purpose of causing harm or with knowledge that harm will result.@ Id.
Under Farmer, Athe 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
[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 Abetween 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 Aa
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 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). AWhere 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, 553 F. App=x 602, 605 (6th
Cir. 2013) (quoting Alspaugh v. McConnell, 643 F.3d 162, 169 (6th Cir. 2011)).
As noted by Defendant Lamb in the step II grievance response:
Grievant claims that he has been inappropriately denied an
accommodation for medically issued athletic shoes. Grievant
asserts that he requires such accommodation to address his “medical
hip replacement pain and suffering.”
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 confirms that the
grievant was examined on 8/23/16 by a physician. No acute findings
were noted and it was determined that grievant does not currently
qualify for medically issued athletic shoes.
Grievant may purchase athletic shoes from an approved vendor at
his own expense and may wear such shoes subject to the rules and
regulations established by custody.
See ECF No. 1-1, PageID.10. As noted above, Plaintiff was evaluated by a physician, who
determined that Plaintiff did not require medically issued athletic shoes. The fact that Plaintiff
disagrees with this evaluation does not constitute an Eighth Amendment violation. Therefore,
Plaintiff’s Eighth Amendment claim is properly dismissed.
Having conducted the review required by the Prison Litigation Reform Act, the
Court determines that Defendants Asche, Aho, Willbanks, Lamb, Harbaugh, and Russell 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).
A Judgment consistent with this Opinion will be entered.
Dated: September 14, 2017
/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge
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