Velthuysen #195606 v. Eicher et al

Filing 5

OPINION; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

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

CHRISTOPHER J. VELTHUYSEN,
Plaintiff,

Case No. 2:17-cv-60

v.

Honorable Paul L. Maloney

DAWN EICHER, 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 Christopher J. Velthuysen, a state prisoner currently incarcerated at the
Baraga Maximum Correctional Facility (AMF), filed this pro se civil rights action against
Defendants Dawn Eicher and Jessica Knack. Both Defendants are Registered Nurses and were
employed at the Kinross Correctional Facility (KCF) during the pertinent time period.
In Plaintiff’s complaint, he alleges that he was seen by Defendant Eicher after he
suffered an injury from playing basketball. Plaintiff states that he came down wrong on his leg and
ran into the metal basketball stand. Plaintiff had to be carried to his unit following the accident.
Plaintiff’s friends carried him to health care after the desk officer called to make sure that someone
could see Plaintiff. When Plaintiff arrived at health care, he told Defendant Eicher that he had no
feeling in his leg, could not walk to and from chow hall without crutches, and was in “exquisite
pain.” Defendant Eicher asked Plaintiff if the pain was also in his hip or back. Plaintiff responded
that he had pain in his lower left back. Defendant Eicher examined Plaintiff’s foot and leg and
issued him a detail for a hot water bottle. Defendant Eicher also scheduled a nurse callout for
Plaintiff in fourteen days, but did not schedule a doctor’s appointment for him.
Plaintiff’s next nurse visit was with Defendant Knack, who told Plaintiff to remove
his pants in front of everyone so that she could examine Plaintiff’s leg. Defendant Knack then
“screamed that [Plaintiff] tried to ‘sexually assault’ her.” Plaintiff was given a hot water bottle and
was escorted back to his unit. Plaintiff received a false misconduct ticket for the alleged sexual
misconduct and had his security level increased. Plaintiff states that he was transferred to AMF
shortly thereafter in April of 2016. The nurse at AMF told Plaintiff that his symptoms sounded like
a “pinched nerve.” Plaintiff claims that he is still suffering from numbness and pain and cannot walk
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properly. Plaintiff asserts that the failure to give him a medical lay-in resulted in the loss of his job.
Plaintiff also states that he was improperly charged a $5 co-pay for his medical appointments, despite
the fact that emergency and follow-up appointments are not to be charged a co-pay.
Plaintiff claims that Defendants violated his rights under the Eighth and Fourteenth
Amendments and seeks compensatory and punitive 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
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
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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 both Defendants were deliberately indifferent to his serious
medical needs in violation of 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
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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
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.

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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
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, 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)).
In this case, Plaintiff was examined by Defendants who prescribed him a hot water
bottle for his discomfort, but did not refer him to a doctor or give him a medical lay-in from his job.
The Court concludes that Plaintiff’s allegations constitute, at most, negligence. As noted above,
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deliberate indifference “entails something more than mere negligence,” Farmer, 511 U.S. at 835.
Plaintiff’s allegations do not rise to the level of an Eighth Amendment violation. Therefore,
Plaintiff’s Eighth Amendment claims are properly dismissed.
Plaintiff claims that Defendant Knack wrote a false misconduct ticket on him, which
resulted in his security level being increased. A prisoner’s ability to challenge a prison misconduct
conviction depends on whether the convictions implicated any liberty interest. The Supreme Court
has held that a prisoner does not have a protected liberty interest in the procedures affecting his
classification and security because the resulting restraint does not impose an “atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515
U.S. 472, 484 (1995). In Rimmer-Bey v. Brown, 62 F.3d 789, 790-91(6th Cir. 1995), the Sixth
Circuit applied the Sandin test to the claim of a Michigan inmate that the mandatory language of the
MDOC’s regulations created a liberty interest that he receive notice and hearing before being placed
in administrative segregation. The court held that regardless of the mandatory language of the prison
regulations, the inmate did not have a liberty interest because his placement in administrative
segregation did not constitute an atypical and significant hardship within the context of his prison
life. Id; see also Mackey v. Dyke, 111 F.3d 460, 463 (6th Cir. 1997). Without a protected liberty
interest, plaintiff cannot successfully claim that his due process rights were violated because,
“[p]rocess is not an end in itself.” Olim v. Wakinekona, 461 U.S. 238, 250 (1983).
Moreover, the Supreme Court repeatedly has held that a prisoner has no constitutional
right to be incarcerated in a particular facility or to be held in a specific security classification. See
Olim, 461 U.S. at 245; Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976); Meachum v. Fano, 427 U.S.
215, 228-29 (1976). The Sixth Circuit has followed the Supreme Court’s rulings in a variety of
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security classification challenges. See, e.g., Harris v. Truesdell, 79 F. App’x 756, 759 (6th Cir.
2003) (holding that prisoner had no constitutional right to be held in a particular prison or security
classification); Carter v. Tucker, 69 F. App’x 678, 680 (6th Cir. 2003) (same); O’Quinn v. Brown,
No. 92-2183, 1993 WL 80292, at *1 (6th Cir. Mar. 22, 1993) (prisoner failed to state a due process
or equal protection claim regarding his label as a “homosexual predator” because he did not have
a constitutional right to a particular security level or place of confinement). Plaintiff’s designation
as a “Security Threat Group Member” is nothing more than a security classification used by the
prison. Because Plaintiff does not have a constitutional right to a particular security level or
classification, this claim is properly dismissed.
Plaintiff also claims that Defendant Eicher’s failure to give him a medical lay-in from
his job resulted in him being fired. The Sixth Circuit has consistently found that prisoners have no
constitutionally protected liberty interest in prison employment under the Fourteenth Amendment.
See, e.g., Dellis v. Corr. Corp. of Am., 257 F.3d 508, 511 (6th Cir. 2001) (district court properly
dismissed as frivolous the plaintiff’s claim that he was fired from his prison job); Newsom v. Norris,
888 F.2d 371, 374 (6th Cir. 1989) (no constitutional right to prison employment); Ivey v. Wilson, 832
F.2d 950, 955 (6th Cir. 1987) (“[N]o prisoner has a constitutional right to a particular job or to any
job”); Carter v. Tucker, No. 03-5021, 2003 WL 21518730, at *2 (6th Cir. July 1, 2003) (same).
Morever, “as the Constitution and federal law do not create a property right for inmates in a job, they
likewise do not create a property right to wages for work performed by inmates.” Carter, 2003 WL
21518730 at *2 (citing Williams v. Meese, 926 F.2d 994, 997 (10th Cir. 1991), and James v. Quinlan,
866 F.2d 627, 629-30 (3d Cir. 1989)). Under these authorities, Plaintiff fails to state a due process
claim arising from the termination of his prison employment.
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Finally, Plaintiff claims that $10.00 was improperly taken from his account to pay for
co-pays for each of his appointments with the named Defendants. Plaintiff’s due process claim
regarding the loss of $10.00 to cover his co-pays is barred by the doctrine of Parratt v. Taylor, 451
U.S. 527 (1981), overruled in part by Daniels v. Williams, 474 U.S. 327 (1986). Under Parratt, a
person deprived of property by a “random and unauthorized act” of a state employee has no federal
due process claim unless the state fails to afford an adequate post-deprivation remedy. If an adequate
post-deprivation remedy exists, the deprivation, although real, is not “without due process of law.”
Parratt, 451 U.S. at 537. This rule applies to both negligent and intentional deprivation of property,
as long as the deprivation was not done pursuant to an established state procedure. See Hudson v.
Palmer, 468 U.S. 517, 530-36 (1984). Because Plaintiff’s claim is premised upon allegedly unauthorized acts of a state official, he must plead and prove the inadequacy of state post-deprivation
remedies. See Copeland v. Machulis, 57 F.3d 476, 479-80 (6th Cir. 1995); Gibbs v. Hopkins, 10
F.3d 373, 378 (6th Cir. 1993). Under settled Sixth Circuit authority, a prisoner’s failure to sustain
this burden requires dismissal of his § 1983 due-process action. See Brooks v. Dutton, 751 F.2d 197
(6th Cir. 1985).
Plaintiff has not and cannot meet his burden. Plaintiff has not alleged that state postdeprivation remedies are inadequate. The Sixth Circuit has found that Michigan law provides
“several adequate post-deprivation remedies” to a prisoner asserting improper removal of money
from his prison account. Copeland, 57 F.3d at 480. In a number of cases similar to this one, the
Sixth Circuit has affirmed dismissal where the inmate failed to allege and show that state law postdeprivation remedies were inadequate. Id. at 479-80 (money wrongly removed from prison account);
Lillie v. McGraw, No. 97-3359, 1997 WL 778050, at *1 (6th Cir. Dec. 12, 1997) (officials allegedly
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broke television); Mowatt v. Miller, No. 92-1204, 1993 WL 27460, at *1 (6th Cir. Feb. 5, 1993)
(misapplication of money to a deficit in prison account); Shabazz v. Lecureux, No. 85-2014, 1986
WL 16140, at *1 (6th Cir. Dec. 5, 1986) (illegal appropriation of money from prisoner account).
Accordingly, the court will dismiss Plaintiff’s action.
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: May 2, 2017

/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge