Anderson v. Less et al

Filing 7

Memorandum Opinion and Order: This action is dismissed pursuant to 28 U.S.C. Section 1915(e). Pursuant to 28 U.S.C. Section 1915(a)(3), an appeal from this decision could not be taken in good faith. (Related Doc # 1 ). Judge Sara Lioi on 1/14/2014. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
EMERSON M. ANDERSON,
PLAINTIFF,
vs.

DAVID LESS, et al,
DEFENDANTS.

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CASE NO. 1:13cv1630
JUDGE SARA LIOI

MEMORANDUM OPINION
AND ORDER

Pro se plaintiff Emerson M. Anderson filed this action under 42 U.S.C. §
1983 against Lorain Correctional Institution (“LORCI”) Health Care Administrator David
Less, LORCI Nurse Quality Insurance Coordinator (“QIC”) Gina Maddox, LORCI Nurse
John Doe #1, LORCI Nurse John Doe #2, LORCI Nurse John Doe #3, and Ohio
Department of Rehabilitation and Correction (“ODRC”) Assistant Chief Medical Inspector
Mona Parks. In the complaint, plaintiff alleges he was denied appointments with a
physician to obtain medications and was told to purchase the medications from the
commissary. He claims he does not have sufficient funds in his account to purchase these
medications, and asserts that defendants have been deliberately indifferent to his serious
medical needs in violation of the Eighth Amendment. He seeks monetary damages.

I.

Background
Plaintiff is engaged in a dispute with the LORCI medical department

concerning who should provide and pay for his over-the-counter medications. He contends
he has chronic allergy symptoms, heartburn, dandruff, and arthritis, for which physicians
have advised him to take allergy tablets, Prilosec, Motrin, Tylenol, and Naprosyn (Alleve)

which can all be purchased without a prescription at the LORCI commissary. He was also
advised to purchase lotions and dandruff shampoos for his dandruff and dry skin. He
contends that the medical department at LORCI should provide these medications and
ointments to him at no cost because he does not have sufficient funds in his account to
purchase them. He repeatedly signed up for sick call, asking to be referred to a doctor in
order to obtain medication to relieve his symptoms. He claims the triage nurses refused to
refer him for a physician visit, and instead advised him to purchase the medications at the
prison commissary. Plaintiff claims he makes only $17 per month at his prison
employment1 and does not have sufficient funds in his prison trust account to buy the
medications after purchasing other items.
The medical department staff informed plaintiff that he is not indigent and
he could afford to purchase the medications if he made wiser budgeting choices.
Specifically, in response to his grievances, Maddox suggested that he could have purchased
allergy medication, if he had not chosen to purchase ice cream, which was three times as
expensive as the medication he needed. Maddox suggested that if his allergies caused him
such discomfort, he should prioritize his spending. Similarly, the Institutional Inspector
noted with respect to his heartburn that Plaintiff “has made significant purchases from [the]
commissary every month, but has not purchased his Prilosec. In addition he is purchasing
spicy Cajun noodles every commissary visit which is probably why he has heartburn.”
(Doc. No. 1-7 at 37.) The Inspector concurred with Maddox, stating that plaintiff has the
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While plaintiff states in his complaint that his state pay is $16 per month, the prison cashier attached a
summary of his account statement which indicates his state pay is $17 per month.

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capability of purchasing his medications through the prison commissary, but has chosen not
to do so.2 Plaintiff claims Maddox, Pawlus, Parks, and John Does ## 1-3 were deliberately
indifferent to his serious medical needs.
Finally, plaintiff claims Health Care Administrator David Less failed to
properly supervise his staff and did not overrule the decisions of Maddox or order the
medical department to provide the medication to him through a prescription. He claims
Less also violated his Eighth Amendment rights.

II.

Standard of Review
Although pro se pleadings are liberally construed, Boag v. MacDougall,

454 U.S. 364, 365, 102 S. Ct. 700, 70 L. Ed. 2d 551 (1982) (per curiam); Haines v. Kerner,
404 U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972), the district court is required to
dismiss an in forma pauperis action under 28 U.S.C. § 1915(e) if it fails to state a claim
upon which relief can be granted, or if it lacks an arguable basis in law or fact. Neitzke v.
Williams, 490 U.S. 319, 328, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989); Lawler v.
Marshall, 898 F.2d 1196 (6th Cir. 1990); see Sistrunk v. City of Strongsville, 99 F.3d 194,
197 (6th Cir. 1996). A claim lacks an arguable basis in law or fact when it is premised on
an indisputably meritless legal theory or when the factual contentions are clearly baseless.
Neitzke, 490 U.S. at 327. A cause of action fails to state a claim upon which relief may be
granted when it lacks plausibility in the complaint. Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 564, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007).

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Plaintiff’s prison trust account statement (Doc. No. 1-2 at 28) indicates plaintiff spent $123.93 at the prison
commissary from February 13, 2013 to August 13, 2013.
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A pleading must contain a short and plain statement of the claim showing
that the pleader is entitled to relief. Ashcroft v. Iqbal, 556 U.S. 662, 677-78, 129 S. Ct.
1937, 173 L. Ed. 2d 868 (2009) (citing Fed. R. Civ. P. 8(a)(2)). The factual allegations in
the pleading must be sufficient to raise the right to relief above the speculative level on the
assumption that all the allegations in the complaint are true. Bell Atlantic Corp., 550 U.S. at
555. The plaintiff is not required to include detailed factual allegations, but must provide
more than an unadorned, the defendant unlawfully harmed me accusation. Iqbal, 556 U.S.
at 678. A pleading that offers legal conclusions or a simple recitation of the elements of a
cause of action will not meet this pleading standard. Id. In reviewing a complaint, the Court
must construe the pleading in the light most favorable to the plaintiff. Bibbo v. Dean Witter
Reynolds, Inc., 151 F.3d 559, 561 (6th Cir. 1998).

III.

Analysis
Prison officials may not deprive inmates of “the minimal civilized measure

of life’s necessities.” Rhodes v. Chapman, 452 U.S. 337, 347, 101 S. Ct. 2392, 69 L. Ed. 2d
59 (1981). The Supreme Court in Wilson v. Seiter, 501 U.S. 294, 298, 111 S. Ct. 2321, 115
L. Ed. 2d 271 (1991), set forth a framework for courts to use when deciding whether
certain conditions of confinement constitute cruel and unusual punishment prohibited by
the Eighth Amendment. A plaintiff must first plead facts which, if true, establish that a
sufficiently serious deprivation has occurred. Id. Seriousness is measured in response to
“contemporary standards of decency.” Hudson v. McMillian, 503 U.S. 1, 8, 112 S. Ct. 995,
117 L. Ed. 2d 156 (1992) (internal quote omitted). Routine discomforts of prison life do not
suffice. Id. Only deliberate indifference to serious medical needs, or extreme deprivations
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regarding the conditions of confinement, will implicate the protections of the Eighth
Amendment. Id. at 9. Plaintiff must also establish a subjective element showing the prison
officials acted with a sufficiently culpable state of mind. Id. Deliberate indifference is
characterized by obduracy or wantonness, not inadvertence or good faith error. Whitley v.
Albers, 475 U.S. 312, 319, 106 S. Ct. 1078, 89 L. Ed. 2d 251 (1986). Liability cannot be
predicated solely on negligence. Id. A prison official violates the Eighth Amendment only
when both the objective and subjective requirements are met. Farmer v. Brennan, 511 U.S.
825, 834, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994).
As a threshold matter, plaintiff fails to establish the objective component of
his claim. The duty under the Eighth Amendment to provide a certain level of health care to
incarcerated offenders is a limited one. “Not ‘every ache and pain or medically recognized
condition involving some discomfort can support an Eighth Amendment claim.’” Sarah v.
Thompson, 109 F. App’x 770, 771 (6th Cir. 2004) (quoting Gutierrez v. Peters, 111 F.3d
1364, 1372 (7th Cir. 1997)). Only serious medical needs trigger Eighth Amendment
protections. Id. A medical condition is deemed to be serious if it is “life threatening or
pose[s] a risk of needless pain or lingering disability if not treated at once.” Davis v. Jones,
936 F.2d 971, 972 (7th Cir. 1991). Maladies that most members of the general public treat
at home with over-the-counter remedies generally are not considered to be serious medical
needs under the Eighth Amendment. See Watson-El v. Wilson, No. 08 C 7036, 2010 WL
3732127, at *13-*14 (N.D. Ill. Sept. 15, 2010) (acid reflex did not rise to the level of a
serious medical need for purposes of Eighth Amendment analysis); Latona v. Pollack, No.
07-1 Erie, 2010 WL 358526, at *8 (W.D. Pa. Jan. 25, 2010)(fever and sore throat are not
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serious medical needs because of common recognition that doctors can do little to treat a
cold virus); Peters v. Berghuis, No. 1:09–cv–14, 2009 WL 261387, at *6 (W.D. Mich. Feb.
3, 2009) (sinus headaches and congestion pressure are not the sort of serious medical
conditions that implicate the Eighth Amendment); George v. Jones, No. C 06-2800 CW
(PR), 2008 WL 859439, at *7 (N.D. Cal. Mar. 28, 2008) (heartburn, which is common
among the American population and can be managed through diet, exercise, and
medication, is not a serious medical need within the meaning of the Eighth Amendment);
Davidson v. Scully, No. 81 Civ. 0390(PKL), 86012, 2001 WL 963965, at *5 (S.D.N.Y.
Aug. 22, 2001) (inmate’s common seasonal allergies were not a serious medical need under
the Eighth Amendment”); Hudgins v. DeBruyn, 922 F. Supp. 144, 148 (S.D. Ind. 1996)
(indigestion, constipation, dandruff, acne, vitiligo, chapped lips, dry hands, most
headaches, common colds, and muscle ache from exertion are not serious medical needs).
The state need not treat prisoners at a level that “exceeds what the average reasonable
person would expect or avail [him]self of in life outside the prison walls.” Dean v.
Coughlin, 804 F.2d 207, 215 (2d Cir. 1986); Lapine v. Caruso, 1:10-CV-1272, 2011 WL
588774, at *5 (W.D. Mich. Feb. 10, 2011).
Here, plaintiff complains he suffers from an itchy dry scalp and skin,
allergies, heartburn, and pain in his knees. He has been prescribed over-the-counter
medications, lotion, and shampoo to treat these conditions, and he suggests these
medications are effective when he takes them. Plaintiff does not allege facts that suggest
these conditions are sufficiently serious to trigger Eighth Amendment protections.
Even if plaintiff’s medical conditions were objectively serious, he fails to
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allege facts to demonstrate the defendants were deliberately indifferent to his ailments to
satisfy the subjective component of his Eighth Amendment claim. Plaintiff claims
defendants are requiring him to purchase his medications from the commissary, but he does
not have sufficient funds in his account after purchasing other items to buy the medications.
Charging inmates who can pay for medical care does not constitute deliberate indifference.
Reynolds v. Wagner, 128 F.3d 166, 173-75 (3d Cir. 1997); Washington v. Sommerville, No.
98-5515, 1999 WL 253652, at *2 (6th Cir. Apr. 23, 1999). Prisoners can be asked to budget
their monthly income and to be selective in their purchases to enable them to buy their own
medications. Reynolds, 128 F.3d at 175. If the prisoner makes the choice to purchase other
items and forego medication, any delay in treatment which occurs is solely a result of
inmate’s decisions, not because of any conduct on the part of the prison administration. Id.
Plaintiff’s prisoner trust account statement filed with his application to
proceed in forma pauperis (Doc. No. 5) indicates plaintiff spent $123.93 at the prison
commissary in a six-month period of time. These purchases included the spicy Cajon
ramen noodles referenced by the Institutional Inspector, sour cream and onion potato chips,
nacho cheese tortilla chips, and ice cream. The defendants were not deliberately indifferent
to plaintiff’s medical needs by asking him to choose between purchasing spicy snack food,
and purchasing over-the-counter medications to relieve his discomfort.
Finally, even if plaintiff had stated a viable claim for relief under the Eighth
Amendment, he failed to allege sufficient facts to impose liability on Maddox, Pawlus,
Parks, and Less. Maddox, Pawlus and Parks are named as defendants in this action simply
because they answered grievances in a way that was unfavorable to the plaintiff.
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Responding to a grievance or otherwise participating in the grievance procedure, however,
is insufficient to trigger liability under 42 U.S.C. § 1983. Shehee v. Luttrell, 199 F.3d. 295,
300 (6th Cir. 1999).
Plaintiff’s claims against Less are based on his alleged failure to supervise
his employees and override decisions with which plaintiff did not agree. Supervisory
liability cannot be imposed on a theory of respondeat superior. See Monell v. Department
of Soc. Servs., 436 U.S. 658, 691, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). To be held
liable for a claim for damages, the supervisor must have encouraged the specific
misconduct or in some way directly participated in it. See Monell, 436 U.S. at 690-91; Hays
v. Jefferson Cnty., 668 F.2d 869, 873-74 (6th Cir. 1982); Bellamy v. Bradley, 729 F.2d 416,
421 (6th Cir. 1984). Liability can be imposed upon a supervisor: (a) when the supervisor
actively participates in the unconstitutional conduct; Birrell v. Brown, 867 F.2d 956, 959
(6th Cir. 1989); (b) when the supervisor encourages or condones the specific incident of
misconduct; Id.; (c) where the supervisor has a policy of inadequately training
subordinates, Barber v. Salem, 953 F.2d 232, 236 (6th Cir. 1992); and (d) when the
supervisor fails to conduct a reasonable inquiry into the incident after the fact. Marchese v.
Lucas, 758 F.2d 181, 188 (6th Cir. 1985). Plaintiff does not allege sufficient facts to show
that Less played an active role in the events plaintiff describes in the complaint, had a
policy of inadequately training employees, or failed to conduct an inquiry into the decision
after it was made. Instead, plaintiff is attempting to hold Less liable for the actions of
LORCI medical personnel under a theory of respondeat superior. This is not a basis for
liability in a civil rights action under 42 U.S.C. § 1983.
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IV.

Conclusion
For all the foregoing reasons, this action is dismissed pursuant to 28 U.S.C.

§ 1915(e). Pursuant to 28 U.S.C. § 1915(a)(3), an appeal from this decision could not be
taken in good faith.
IT IS SO ORDERED.

Dated: January 14, 2014
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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