Bailey #254983 v. Zelenak
OPINION signed by Magistrate Judge Maarten Vermaat (cam)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
Case No. 2:23-cv-82
Honorable Maarten Vermaat
This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983. Pursuant to
28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure, Plaintiff consented to
proceed in all matters in this action under the jurisdiction of a United States magistrate judge. (ECF
No. 1, PageID.4.)
This case is presently before the Court for preliminary review under the Prison Litigation
Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), pursuant to 28 U.S.C.
§ 1915A(b), and 42 U.S.C. § 1997e(c). The Court is required to conduct this initial review prior to
the service of the complaint. See In re Prison Litig. Reform Act, 105 F.3d 1131, 1131, 1134 (6th
Cir. 1997); McGore v. Wrigglesworth, 114 F.3d 601, 604–05 (6th Cir. 1997). Service of the
complaint on the named defendants is of particular significance in defining a putative defendant’s
relationship to the proceedings.
“An individual or entity named as a defendant is not obliged to engage in litigation unless
notified of the action, and brought under a court’s authority, by formal process.” Murphy Bros.,
Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347 (1999). “Service of process, under
longstanding tradition in our system of justice, is fundamental to any procedural imposition on a
named defendant.” Id. at 350. “[O]ne becomes a party officially, and is required to take action in
that capacity, only upon service of a summons or other authority-asserting measure stating the time
within which the party served must appear and defend.” Id. (citations omitted). That is, “[u]nless
a named defendant agrees to waive service, the summons continues to function as the sine qua non
directing an individual or entity to participate in a civil action or forgo procedural or substantive
rights.” Id. at 351. Therefore, the PLRA, by requiring courts to review and even resolve a plaintiff’s
claims before service, creates a circumstance where there may only be one party to the
proceeding—the plaintiff—at the district court level and on appeal. See, e.g., Conway v. Fayette
Cnty. Gov’t, 212 F. App’x 418 (6th Cir. 2007) (“Pursuant to 28 U.S.C. § 1915A, the district court
screened the complaint and dismissed it without prejudice before service was made upon any of
the defendants . . . [such that] . . . only [the plaintiff] [wa]s a party to this appeal.”).
Here, Plaintiff has consented to a United States magistrate judge conducting all
proceedings in this case under 28 U.S.C. § 636(c). That statute provides that “[u]pon the consent
of the parties, a full-time United States magistrate judge . . . may conduct any or all
proceedings . . . and order the entry of judgment in the case . . . .” 28 U.S.C. § 636(c). Because the
named Defendants have not yet been served, the undersigned concludes that they are not presently
parties whose consent is required to permit the undersigned to conduct a preliminary review under
the PLRA, in the same way they are not parties who will be served with or given notice of this
opinion. See Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995) (“The record does not contain a
consent from the defendants[; h]owever, because they had not been served, they were not parties
to th[e] action at the time the magistrate entered judgment.”).1
Under the PLRA, 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. § 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 for failure to state a claim.
Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC)
at the Alger Correctional Facility (LMF) in Munising, Alger County, Michigan. The events about
which he complains occurred at that facility. Plaintiff sues Registered Nurse Paul Zelenak in his
official and individual capacities.
Plaintiff alleges that, on May 25, 2020, he was injured by non-party Officer Hill Sr. while
performing his work assignment. (Compl., ECF No. 1, PageID.3.) No incident report was written,
and Plaintiff was not provided with medical care. (Id.)
But see Coleman v. Lab. & Indus. Rev. Comm’n of Wis., 860 F.3d 461, 471 (7th Cir. 2017)
(concluding that, when determining which parties are required to consent to proceed before a
United States magistrate judge under 28 U.S.C. § 636(c), “context matters” and the context the
United States Supreme Court considered in Murphy Bros. was nothing like the context of a
screening dismissal pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c));
Williams v. King, 875 F.3d 500, 503–04 (9th Cir. 2017) (relying on Black’s Law Dictionary for
the definition of “parties” and not addressing Murphy Bros.); Burton v. Schamp, 25 F.4th 198, 207
n.26 (3d Cir. 2022) (premising its discussion of “the term ‘parties’ solely in relation to its meaning
in Section 636(c)(1), and . . . not tak[ing] an opinion on the meaning of ‘parties’ in other contexts”).
On May 28, 2020, Plaintiff submitted a health care request seeking medical attention for
“a strain on [Plaintiff’s] left wrist.” (ECF No. 1-1, PageID.8; ECF No. 1, PageID.3.) Plaintiff
explained only that his wrist had been “hurting . . . ever since” Officer Hill Sr. closed a cell door
on Plaintiff. (ECF No. 1-1, PageID.8.)
That same day, Plaintiff submitted a “medical question” kite seeking medical attention for
the strain to Plaintiff’s left wrist. (Id., PageID.9.) Here too, Plaintiff indicated that his wrist had
been hurting ever since Officer Hill closed a cell door on Plaintiff. (Id.) Defendant Zelenak
responded that same day, explaining:
Due to the State of Emergency in Michigan, Health Care is only seeing urgent and
emergent appointments. Once the State of Emergency lifts, you can re-kite Health
Care. If your symptoms become worse or you feel that your situation has become
urgent/emergent, please contact Health Care immediately.
(Id.) Defendant Zelenak further instructed Plaintiff that pain relievers were available for purchase
from the prison store. (Id.)
On June 1, 2020, Plaintiff submitted a grievance, explaining that he “kited healthcare about
[his] wrist being injured on the job,” but “healthcare never came.” (ECF No. 1-3, PageID.14; ECF
No. 1, PageID.3.) Plaintiff’s grievance was denied. (ECF No. 1-3, PageID.16–19.)
On June 3, 2020, non-party Sergeant Seymour interviewed Plaintiff related to a grievance
that Plaintiff had previously submitted against Officer Hill Sr. (ECF No. 1, PageID.3.) During that
interview, Plaintiff told Sergeant Seymour about the pain that Plaintiff was experiencing and that
he had been denied medical care. (Id.) Sergeant Seymour told Plaintiff that, if Plaintiff signed off
on the grievance against Officer Hill Sr., Sergeant Seymour would ensure that Plaintiff was seen
by healthcare. (Id.) Plaintiff agreed. (Id.) Thereafter, Plaintiff was examined by non-party
Registered Nurse Crane, who gave Plaintiff pain medication and referred Plaintiff to non-party
Physician Assistant Westcomb. (Id.)
Physician Assistant Westcomb examined Plaintiff on June 4, 2020, and requested that
Plaintiff be sent to Munising Memorial Hospital. (Id.) At Munising Memorial Hospital Plaintiff
was diagnosed with “an ulna positive variance which can predispose to TCFF tears.” (ECF
No. 1-4, PageID.21). Diagnostic testing showed “no fracture, dislocation, or significant arthritic
Based on the foregoing allegations, the Court construes Plaintiff’s complaint to raise an
Eighth Amendment claim regarding the denial of medical care. Plaintiff seeks a declaratory
judgment and monetary damages. (ECF No. 1, PageID.4.)
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. Id.; 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.” Id. 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.” Id. 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)(ii)).
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
Official Capacity Claim
Plaintiff brings claims against Defendant Zelenak in both his official and individual
capacities. A suit against an individual in his or her official capacity is equivalent to a suit brought
against the governmental entity: in this case, the MDOC. See Will v. Mich. Dep’t of State Police,
491 U.S. 58, 71 (1989); Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994). 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. Pugh, 438 U.S. 781, 782 (1978); O’Hara v. Wigginton, 24 F.3d 823, 826 (6th Cir.
1994). 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 opinions, the
United States Court of Appeals for the Sixth Circuit has specifically held that the MDOC is
absolutely immune from a § 1983 suit under the Eleventh Amendment. See, e.g., Harrison v.
Michigan, 722 F.3d 768, 771 (6th Cir. 2013); Diaz v. Mich. Dep’t of Corr., 703 F.3d 956, 962 (6th
Cir. 2013); McCoy v. Michigan, 369 F. App’x 646, 653–54 (6th Cir. 2010). Therefore, the Court
will dismiss Plaintiff’s claim for monetary damages against Defendant Zelenak in his official
capacity on grounds of immunity.
Although damages claims against an official capacity defendant are properly dismissed on
grounds of immunity, an official capacity action seeking injunctive or declaratory relief may
constitute an exception to sovereign immunity. See Ex Parte Young, 209 U.S. 123, 159–60 (1908)
(holding that the Eleventh Amendment immunity does not bar prospective injunctive relief against
a state official). However, the Supreme Court has cautioned that, “Ex parte Young can only be
used to avoid a state’s sovereign immunity when a ‘complaint alleges an ongoing violation of
federal law and seeks relief properly characterized as prospective.’” Ladd v. Marchbanks, 971 F.3d
574, 581 (6th Cir. 2020) (quoting Verizon Md. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645
Here, Plaintiff seeks relief for past harm; he does not allege that Defendant Zelenak is
engaged in any course of conduct that can be described as ongoing. Past exposure to an isolated
incident of illegal conduct does not, by itself, sufficiently prove that the plaintiff will be subjected
to the illegal conduct again. See, e.g., id.; Alvarez v. City of Chicago, 649 F. Supp. 43 (N.D. Ill.
1986); Bruscino v. Carlson, 654 F. Supp. 609, 614, 618 (S.D. Ill. 1987), aff’d, 854 F.2d 162 (7th
Cir. 1988); O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974). Therefore, Plaintiff’s claim for
declaratory relief against Defendant Zelenak in his official capacity is also properly dismissed.
Individual Capacity Claim
Plaintiff alleges that Defendant Zelenak improperly denied Plaintiff medical care for
Plaintiff’s left wrist strain on May 29, 2020.2 The Court construes this as a claim for Eighth
Amendment deliberate indifference.
In keeping with the Eighth Amendment’s prohibition against the infliction of cruel and
unusual punishment, 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. 97, 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). Deliberate indifference may be manifested by a doctor’s failure to respond to the
medical needs of a prisoner, or by “prison guards in intentionally denying or delaying access to
medical care or intentionally interfering with the treatment once prescribed. Regardless of how
evidenced, deliberate indifference to a prisoner’s serious illness or injury states a cause of action
under § 1983.” Estelle, 429 U.S. at 104–05.
The Court notes that, although Plaintiff alleges that he was previously denied medical care on
May 28, 2020, that Plaintiff’s grievance related to the lack of medical care was denied, and that
Plaintiff was only provided with care after he agreed to sign off on a grievance against non-party
Officer Hill Sr., Plaintiff does not allege that Defendant Zelenak was personally involved in these
incidents. It is a basic pleading essential that a plaintiff attribute factual allegations to particular
defendants. See Twombly, 550 U.S. at 544 (holding that, in order to state a claim, a plaintiff must
make sufficient allegations to give a defendant fair notice of the claim). Government officials, such
as Defendant Zelenak, may not be held liable for the unconstitutional conduct of others 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 plaintiff must plead facts to demonstrate that the named defendant was “personally
involved” in the unconstitutional action. Burley v. Gagacki, 729 F.3d 610, 619 (6th Cir. 2013)
(quoting Binay v. Bettendorf, 601 F.3d 640, 650 (6th Cir. 2010)). Because Plaintiff has not alleged
that Defendant Zelenak was personally involved any other incident described in Plaintiff’s
complaint, any intended claim based upon these incidents would be subject to dismissal.
A claim for the deprivation of adequate medical care has both 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); see also Phillips v. Roane Cnty., 534 F.3d
531, 539–40 (6th Cir. 2008). Obviousness, however, is not strictly limited to what is detectable to
the eye. Even if the layman cannot see the medical need, a condition may be obviously medically
serious where a layman, if informed of the true medical situation, would deem the need for medical
attention clear. See, e.g., Rouster v. Saginaw Cnty., 749 F.3d 437, 446–51 (6th Cir. 2014) (holding
that a prisoner who died from a perforated duodenum exhibited an “objectively serious need for
medical treatment,” even though his symptoms appeared to the medical staff at the time to be
consistent with alcohol withdrawal); Johnson v. Karnes, 398 F.3d 868, 874 (6th Cir. 2005)
(holding that prisoner’s severed tendon was a “quite obvious” medical need, since “any lay person
would realize to be serious,” even though the condition was not visually obvious). 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, 390 F.3d at 898, 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). “[I]f a plaintiff suffered from a minor or non-obvious medical condition,
he can show that his condition was objectively serious ‘if it is one that has been diagnosed by a
physician as mandating treatment.’” Mattox v. Edelman, 851 F.3d 583, 598 (6th Cir. 2017)
(quoting Blackmore, 390 F.3d at 897).
The subjective component of the Eighth Amendment’s deliberate indifference standard
requires an inmate to plead facts that would demonstrate that that the prison official had “a
sufficiently culpable state of mind” in denying medical care. Brown v. Bargery, 207 F.3d 863, 867
(6th Cir. 2000). Deliberate indifference “entails something more than mere negligence,” 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.” Farmer, 511 U.S. at 835. “[T]he 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. To prove a defendant’s subjective knowledge, “[a]
plaintiff may rely on circumstantial evidence . . . : A jury is entitled to ‘conclude that a prison
official knew of a substantial risk from the very fact that the risk was obvious.’” Rhinehart v. Scutt,
894 F.3d 721, 738 (6th Cir. 2018) (quoting Farmer, 511 U.S. at 842).
However, 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).
Plaintiff alleges that he informed Defendant Zelenak that he was experiencing pain from
“a strain on [his] left wrist” (ECF No. 1-1, PageID.9; see ECF No. 1, PageID.3.) Taking Plaintiff’s
allegation as true, Plaintiff has not shown a medical condition sufficiently serious to implicate the
A left wrist strain alone, while unpleasant, does not produce symptoms that are lifethreatening or urgent in nature, and there are no allegations in Plaintiff’s complaint from which
the Court might infer any need for medical treatment even following the June 4, 2020, diagnostic
testing (see ECF No. 1-4, PageID.21). Indeed, Plaintiff does not allege that his left wrist strain did
not simply resolve on its own. See Larkin v. Schroeder, No. 2:20-cv-111, 2020 WL 4344985, at *5
(W.D. Mich. July 29, 2020) (“[I]t is difficult to infer a serious medical need from the facts Plaintiff
has alleged. Similarly, Plaintiff does not suggest that his bruising or headache did not resolve on
their own.”) Accordingly, Plaintiff has failed to allege a serious medical need as required to satisfy
the objective component of the test for deliberate indifference.
Yet, even if Plaintiff had alleged facts to indicate a serious medical need, his allegations
regarding the subjective component fall short. Defendant Zelenak’s response to Plaintiff’s medical
question does not plausibly suggest “a sufficiently culpable state of mind in denying medical care.”
Brown, 207 F.3d at 867. Mindful of the COVID-19 public health emergency and the State of
Emergency in Michigan, Defendant Zelenak explained to Plaintiff that healthcare was limiting its
visits to “urgent and emergent appointments.” (ECF No. 1-2, PageID.12.) However, based upon
the information that Plaintiff provided in his kite (ECF No. 1-1, PageID.9), Defendant Zelenak
formulated a plan of action. Defendant Zelenak instructed Plaintiff on how to obtain pain relievers
and specifically informed Plaintiff that Plaintiff should submit a second request should his
symptoms become worse or rise to an urgent/emergent nature. (Id.) Plaintiff does not allege that
he had any interactions with Defendant Zelenak regarding Plaintiff’s wrist strain aside from this
single medical kite.
The Court recognizes that Plaintiff disagrees with Defendant Zelenak’s plan of action.
However, 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.
Darrah v. Krisher, 865 F.3d 361, 372 (6th Cir. 2017); Briggs v. Westcomb, 801 F. App’x 956, 959
(6th Cir. 2020); Mitchell v. Hininger, 553 F. App’x 602, 605 (2014). 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).
Plaintiff fails to allege any facts to support an inference that Defendant Zelenak was aware
of a substantial risk of serious harm to Plaintiff and then disregarded that risk. Therefore, on this
basis as well, Plaintiff fails to state an Eighth Amendment claim.
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Plaintiff’s complaint will be dismissed for failure to state a claim, under 28 U.S.C.
§ 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, 114 F.3d
at 611. Although the Court concludes that Plaintiff’s claims are properly dismissed, the Court does
not conclude that any issue Plaintiff might raise on appeal would be frivolous. Coppedge v. United
States, 369 U.S. 438, 445 (1962). Accordingly, the Court does not certify that an appeal would not
be taken in good faith. 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.
United States Magistrate Judge
May 19, 2023
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