Hendricks v. Ohio Department of Rehabilitation and Corrections et al

Filing 106

REPORT AND RECOMMENDATIONS that 101 MOTION for Summary Judgment be granted. Objections due w/in fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 2/28/2013. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

Benjamin Hendricks,

:

Plaintiff,

:

v.

:

Case No. 2:11-cv-40

Ohio Department of
Rehabilitation and Correction,
et al.,

:

JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp

Defendants.

:

:

REPORT AND RECOMMENDATION
Plaintiff, Benjamin Hendricks, a state prisoner, filed this
action under 42 U.S.C. §1983 alleging that by denying him a
restricted diet as ordered by medical specialists, defendants
John DesMarais, Mona Parks, Theresa Bell, and Susan Nesbitt have
demonstrated deliberate indifference to his serious medical
needs.

Mr. Hendricks also alleges that Michelle Miller, Warden

at the Belmont Correctional Institution, violated his First
Amendment rights when she destroyed his legal materials in
retaliation for his having filed grievances regarding his medical
care.

Currently before the Court is the defendants’ motion for

summary judgment.

The motion has been fully briefed.

For the

following reasons, the Court will recommend that the motion for
summary judgment be granted.
I.

Legal Standard

Summary judgment is not a substitute for a trial when
facts material to the Court's ultimate resolution of the case
are in dispute.

It may be rendered only when appropriate

evidentiary materials, as described in Fed. R. Civ. P. 56(c),
demonstrate the absence of a material factual dispute and the
moving party is entitled to judgment as a matter of law.

Poller v. Columbia Broadcasting Systems, Inc., 368 U.S. 464
(1962).

The moving party bears the burden of demonstrating

that no material facts are in dispute, and the evidence
submitted must be viewed in the light most favorable to the
nonmoving party.
(1970).

Adickes v. S.H. Kress & Co., 398 U.S. 144

Additionally, the Court must draw all reasonable

inferences from that evidence in favor of the nonmoving
party.

United States v. Diebold, Inc., 369 U.S. 654 (1962).

The nonmoving party does have the burden, however, after
completion of sufficient discovery, to submit evidence in
support of any material element of a claim or defense on
which that party would bear the burden of proof at trial,
even if the moving party has not submitted evidence to negate
the existence of that material fact.

See Celotex Corp. v.

Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242 (1986).

Of course, since "a party seeking

summary judgment ... bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact,"
Celotex, 477 U.S. at 323, the responding party is only required
to respond to those issues clearly identified by the moving party
as being subject to the motion.

It is with these standards in

mind that the instant motion must be decided.
II.

Factual Background

At the outset, the Court notes that the verified revised
amended complaint is not entirely specific regarding the time
frame relevant to Mr. Hendricks’ Eighth Amendment claim.

In his

response to the motion for summary judgment, Mr. Hendricks
clarifies that his claim is directed only to events occurring
between February 20, 2009 and November, 2009 while he was
incarcerated at the Belmont Correctional Institution.
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See

Plaintiff’s Response (Doc. #102), p. 24.

As a result, the Court

will limit its discussion of the medical records and other
factual material presented to this time period other than as
needed to provide background information.

Almost all of the

evidentiary material submitted for the Court’s review is
addressed to Mr. Hendricks’ Eighth Amendment claim.

The

following facts, construed in the light most favorable to Mr.
Hendricks, are taken from the verified revised amended complaint
and Mr. Hendricks’ declaration in support of his memorandum
contra the motion for summary judgment with attached exhibits.
A.

Eighth Amendment Claim

Dr. DesMarais was the medical director for the Ohio
Department of Rehabilitation and Correction during Mr. Hendricks’
incarceration at Belmont.

Revised Amended Complaint ¶11.

Ms.

Parks was an assistant chief inspector (medical) for the ODRC
during this time.

Id. at ¶12.

Ms. Bell was the dietary

operations manager for the ODRC and Ms. Nesbitt was the health
care administrator at Belmont.

Id. at ¶¶13, 14.

Prior to his incarceration, Mr. Hendricks was diagnosed with
ulcerative colitis and had his colon removed.
Declaration, ¶3, ¶5.

Hendricks’

Upon his incarceration, he was hospitalized

at the Ohio State University Medical Center.

Id. at ¶8.

He was

discharged from OSU on October 23, 2008, with orders to the
Corrections Medical Center that he be given a “Regular/Lo
Residue” diet.

Id. at ¶11.

On December 24, 2008, he was

transferred to the Belmont Correctional Institution.

Id. at ¶13.

Shortly after his arrival at Belmont, Mr. Hendricks met with a
dietetic technician who attempted to address his dietary needs.
Id. at ¶14.

Because food service was having difficulty

understanding the diet, Mr. Hendricks had a conversation with the
inspector of institutional services on February 19, 2009.
¶15.

Id. at

The inspector obtained a copy of Mr. Hendricks’ diet card
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and contacted Ms. Nesbitt.

Id. at ¶16. On February 20, 2009, Ms.

Nesbitt confiscated Mr. Hendricks’ diet card.

Id. at ¶17.

On

February 25 and 27, 2009, Mr. Hendricks met again with the diet
technician.

Id. at ¶¶19, 21.

Mr. Hendricks did not believe his meeting on February 27
resolved his diet issue and he initiated the grievance process
later that day.

Hendricks Declaration, ¶23, PAGEID# 855. In his

informal complaint, he stated:
On 2/19/09 I had a conversation with Ms. Riley
about my special diet. She took a photo copy of my
diet card and contacted Ms. Nesbitt HCA. ON 2/20/09
Ms. Nesbitt took my diet card because the doctor did
not prescribe the diet. Ms. Nesbitt then consulted my
chart from O.S.U. Hospital and found the diet
prescription. On 2/25/09 I saw the diet technician who
found out that the diet I was to be on was what she had
on the original diet that Ms. Nesbitt took. On 2/27/09
I saw the diet technician who said that per DRC and
Belmont policy that my diet didn’t have to be followed.
...
Id.
Mr. Hendricks received a response to this complaint on March
10, 2009, which stated, in part, “you are receiving the
appropriate diet and diet education from medical.”

PAGEID # 855.

Mr. Hendricks prepared a notification of grievance on March 13,
2009, stating:
I have been having problems with dietary issues
since day 1. It clearly states in my chart from OSU
Hospital that I am to be on a low residue diet. Also
anybody who knows anything about Crohns Disease knows
there are certain foods that cause irritation and pain.
Also because of the loss of my entire colon I should be
taking some kind of dietary supplement. Under the
Fussell agreement section JJ under diets it states that
all institutions must provide medically required diets.
PAGEID #856.
Mr. Hendricks received a disposition of grievance dated
March 27, 2009, signed by Kelly S. Riehle which stated:
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Your grievance, filed on 03/17/2009, has been
reviewed and disposed of follows:
The office of Inspector is in receipt of your complaint
in which you state that you are having problems with
your diet and that you are to be on a low residue diet.
To investigate your complaint, I reviewed your medical
file and spoke to Ms. Nesbitt, HCA.
Per your medical file, OSU notes, there is no evidence
that you have Crohn’s Disease. Your colon was removed
prior to incarceration so there is nothing in your
current medical file to indicate why the surgery was
performed. You give conflicting stories of why to
various BeCI staff, telling medical it’s Crohn’s but
telling other staff you were shot in Iraq. BeCI
medical has sent for you (sic) medical records. Once
they obtain them they will be reviewed to see if there
is any record or medical evidence of Crohns’ (sic)
disease. If there is, it will be addressed. Regarding
your diet, because you do have a colostomy bag you are
being afforded a special diet. You are to receive 6
small meals a day. You have been educated on what food
you are to stay away from. If a food that you are not
to eat is on the menu you are given a substitute for
that item.
Per your medical records you have gained weight since
you entered the system so apparently your nutritional
needs are being met. There is nothing in your medical
chart to indicate you need a dietary supplement.
It is my finding that there is insufficient evidence to
support your claim.
This office will take no further action on this matter
at this time.
PAGEID #857.
On April 5, 2009, Mr. Hendricks filed an appeal to the Chief
Inspector which stated:
Ms. Riehle is incorrect in her review of my medical
records. Crohn’s Disease is well documented and
surgery is needed, per OSU, from this problem. Ms.
Riehle is correct that my colon was removed prior to my
incarceration but it is well documented as to why Crohn’s disease. Again if BECI had sent for my records
3 months ago the level of care I’m receiving wouldn’t
be an issue.
-5-

As for the special diet. I am receiving 3 regular
trays a day (1,000 calorie) like everybody else plus 3
so called small meals consisting of: 1 piece of cheese,
1 piece of stale bread, 1 apple/orange. This is the
same thing every day. This does not constitute 6 small
meals.
Ms. Riehle is correct that I am being adjusted but only
from recent info sent to me from Crohn’s and Colitis
Foundation of America and not from IHS. This is
basically the problem. Every time I raise the issue of
what I have learned I’m told either I’m lying or I
don’t have Crohns or something else.
The only substitution of the food is the main course
which is substituted with other food I still have
trouble eating.
...
PAGEID #858.

The chief inspector responded on April 22, 2009,

concluding that Mr. Hendricks was being afforded proper care
under ODRC guidelines and affirming the inspector.

PAGE ID

##859-860.
On April 23, 2009, Mr. Hendricks was seen at the East Ohio
Regional Hospital for abdominal pain.
¶26.

Hendricks’ Declaration,

The emergency trauma record contains the following

information:
This is a 32-year-old presents to the emergency
department complaining of right-sided abdominal pain.
He has a history of Crohn’s. Has a colostomy on the
right. He states he gets flare-ups like this before
when he gets constipated and obstructed. He is not
vomiting. No nausea at this time. Just the right-side
cramping pain. He states he really has had much out of
his colostomy. He states usually will need some
Toradol for pain and magnesium citrate. It is mainly
because he states they are not giving him the right
diet. He has no other complaints.
Emergency Department Course
After evaluation I went ahead and obtained Hep-Lock.
Lab work was drawn. CBC, metabolic panel were within
normal limits. Abdominal series showed nonspecific
bowel gas pattern. He was given Toradol, mag citrate,
which he states [is] what he typically gets when this
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happens. We will go ahead and discharge him back to
the prison where he [] follow up with Dr. Gujral and
modify his diet and return if his symptoms worsen.
Page ID #862
On July 7, 2009, Mr. Hendricks was seen over GI Telemed by
Dr. Levine to discuss treatment and follow-up care for Crohn’s
disease.

PAGEID #868.

Dr. Levine’s impression and treatment

plan are reflected in a letter addressed to Dr. Akusoba of the
Corrections Medical Center.

Id.

Impression: 1. Crohn’s colitis status post total
colectomy diagnosed in 2002. There is no family
history of colon cancer. He does not [] a rectum still
left in situ and he has an ileostomy. His endoscopies
from October 2008 were reviewed. He does have some
rectal inflammation. I had referred him for a DEXA
scan. This was not done. I referred him for
evaluation with colorectal surgery but this was not
done. He had talked with his gastroenterologist and
colorectal surgeon who had seen him prior to him coming
to prison and they did not recommend removing his
rectum. We stopped his Remicade and he has had no real
change in his symptoms. He is really doing pretty
well. No abdominal pain, no nausea, no vomiting.
Weight loss. His weight is down 8 pounds from
November. No fever, no chills. He does not smoke. He
does complain of the fact that he has not been able to
be placed on a low residue diet. 2. History of
seizures.
Plan: 1. DEXA scans.
2. Low-residue diet.
3. Follow-up with me in Telemedicine six months’ time.
4. Yearly flex sig for surveillance purposes.
5. Folic acid 1 mg per day for chemo prophylaxis.
Id.
On July 29, 2009, Mr. Hendricks underwent DEXA scanning at
OSU.

Page ID #869.

Crohn’s disease.

One of the indications for testing was

Id.

On October 10, 2009, Mr. Hedricks was admitted to the East
Ohio Regional Hospital.

PAGEID #871.
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He was discharged on

October 14, 2009 with a discharge diagnosis of Stevens-Johnson
syndrome, secondary to Dilantin allergy; absence epilepsy,
controlled; history of Crohn’s disease, status post partial colon
resection and status post ileostomy; hypokalemia; and allergic
pneumonia, secondary to medication.

Id.

On November 2, 2009, Mr. Hendricks was seen at the East Ohio
Regional Hospital Emergency Room for “bleeding from ostomy,
abdominal pain.”

PAGEID #872.

According to the emergency trauma

record, the treating physician’s findings included:
Ed Course
The patient states he has changed his ostomy bag
once had the same amount of blood earlier today. The
patient did have a heparin lock established. I was
concerned about anemia secondary to blood loss. CBC
showed a white count of 10.4, H&H 13.7 and 41.2,
platelet count was 309.000. Basic metabolic panel
showed a potassium of 3.3, direct bilirubin less than
0.1. The remainder was normal. He had a serum
sedimentation rate performed which was normal at 7. I
discussed this case with Dr. Chacko who is the
gastroenterologist on-call at OSU. He did accept this
patient in transfer. I have spoken with Dr. Gujral
prior to this and he approved the transfer of the
patient to OSU. The patient has been cared for at OSU
in the past for this, was hospitalized for a week for
the same problem. He was transferred via ambulance to
OSU for further workup and management. He had had an
abdominal CT with oral contrast and this had shown
thickening of the walls of the small bowel proximal
loops consistent with enteritis. I believe the patient
is suffering with an exacerbation of his Crohn (sic)
disease. He was transferred to OSU in stable
condition.
Id.
According to the discharge instructions from OSU, Mr
Hendricks was admitted on November 3, 2009 and discharged on
November 22, 2009.

PAGEID #876-878.

The reason for

hospitalization is stated as:
admitted with [] and pain. Found to have
perastomal hernia. repaired. postop with pain, possible
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infected hematoma. drained. wound to heal by secondary
intention. TID wet to dry dressings. Invanz to
continue through 11.25. Tolerating diet at d/c. Also
found to have diversion colitis. Gi recommends BID
short chain fatty acid enemas x 6 weeks.
The discharge instructions indicate a diagnosis of Crohn’s flare
and a recommended regular/lo residue diet.

PAGEID ##876-877.

In

late November, 2009, Mr. Hendricks was transferred from Belmont
to the Frazier Health Center at Pickaway Correctional
Institution.

Hendricks’ Declaration, ¶38.

Medical records for the relevant time period provided by the
defendants in support of their motion for summary judgment reveal
the following.

Interdisciplinary progress notes dated February

20, 2009 state as follows:
Met with patient to review diet orders. He
discussed what he could not eat and his food
preferences. He stated that OSU had him on a low
residue diet. I located his discharge instructions
from OSU and found:
Regular low residue listed as his
diet. I shared this information with the dietician and
asked which of our diet plans fits this criteria.
Informed patient I would have him seen on Wednesday by
diet technician. SNesbittHCA.
Further, notes dated March 26, 2009 state:
Arrived in IHS to sign releases of information. Asked
if he wanted to keep appointment with diet technician.
He reports “I had passes for SAMI and medical at same
time.” Informed him I would get him rescheduled with
diet tech. He asked to be seen by NP re: wound care.
Informed him he would be scheduled. Has appointment
with Dr. Gujral to review seizure medication. SNesbitt
HCA.
Motion for Summary Judgment, Exhibit G
Infirmary admission orders dated April 23, 2009, indicate
that Mr. Hendricks had a “low residue diet order.”
Summary Judgment Exhibit I.

Motion for

Further, orders dated May 22, 2009

indicate that Mr. Hendricks was to have six small meals a day for
six months and be weighed monthly.
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Id. at Exhibit K.

Defendants’ Exhibit M is a page of interdisciplinary
progress notes containing an incomplete date (--/29/09 which
defendants appear to interpret as December 12, 2009, see Roush
Affidavit Exhibit P ¶9) which states:
When diet cards were passed for inmate to pick up
this inmate refused the diet card and stated to corr.
officer “when the pass is yellow, then I will accept
it. See diet pass attached to note.
The signature following this entry is illegible.

This page

also contains a photocopy of a diet pass issued to Mr. Hendricks.
The pass identifies Mr. Hendricks’ diet as “six small meals” with
special instructions indicating an allergy to peanut butter, and
that he is not to have “wheat bread, corn, raw veg or fruit.”
The pass notes an expiration date of November 17, 2009 and states
that it “[e]xpires 180 days from issue date.”
Defendants also have submitted declarations from Ms. Nesbitt
and Mary Roush, the Acting Operations Manager at the Pickaway
Correctional Institution where Mr. Hendricks is currently housed.
According to these declarations, while correctional institutions
can provide meal plans to address an inmate’s specific dietary
needs, the inmates are entitled to refuse these plans and
purchase food items from the institution’s commissary.

Mr.

Hendricks’ commissary records for the relevant time period
indicate purchases of coffee, ramen noodles, Snickers, popcorn,
cookies, hot sauce, soft drinks, and macaroni and cheese.

Motion

for Summary Judgment, Exhibits L and P.
Defendants also have submitted several of Mr. Hendricks’
medical records from 2007 and 2008.

Some of these records

indicate a history of Crohn’s disease but at least one of these
records suggests no evidence of Crohn’s disease.
Summary Judgment Exhibits A-D.

See Motion for

Mr. Hendricks has submitted

several medical records dating from 2002-2008.

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See PAGEID ##825-

854.

These records indicate a diagnosis of ulcerative colitis in

2002 followed by the removal of his colon.

Records from 2003

indicate symptoms consistent with Crohn’s disease.

A Corrections

Medical Center discharge summary dated October 23, 2008,
indicates that Mr. Hendricks experienced a “Crohn’s
Exacerbation.”

PAGEID #854.

Discharge instructions from OSU

Medical Center indicate that Mr. Hendricks was hospitalized from
October 11, 2008 to October 22, 2008, for a “Crohn’s
exacerbation.”

PAGEID #850.

The Ohio Department of Rehabilitation and Correction Bureau
of Medical Services utilizes a diet formulary protocol the
purpose of which “is to establish standardized guidelines,
language, ordering procedures, and to specify the approved types
of diets when ordering of therapeutic diets and liquid
supplements for patients requiring nutrition intervention to
treat medical conditions.”

See Defendants’ Reply, Attachment 1

(intended as Exhibit LL to Plaintiff’s Response).

This protocol

recognizes several therapeutic diets but does not specifically
recognize a “low residue” diet.

Id. at pp. 3-6.

The version of

the protocol provided here has a revision date of February 19,
2009 and an effective date of March 3, 2009. Id. at p. 1.
The protocol addresses requests for non-formulary diets as
follows:
C.

Non-Formulary Diets

1. A nurse of ALP will refer all non-formulary
diet orders to the nutrition services person for
review.
2. Non-formulary diet orders from non-DRC
facilities are considered to be recommendations and
shall be reviewed by the DRC Dietary Operations Manager
and the DRC Medical Director prior to implementation.
3. The dietitic technician shall contact the
Dietary Operations Manager in writing listing the
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patient name, number, Diet Order (DRC5002) and reason
documented for diet order.
4. The Dietary Operations Manager is responsible
for reviewing the written request and working with the
nutrition service person and the ALP to provide diet
alternatives that can be produced in DRC and that meet
the medical needs of the patient.
Defendants’ Reply, Attachment 1, pp. 6-7.
There is no dispute that Mr. Hendricks was provided with a
“six meals diet” while housed at Belmont.
Declaration, ¶42.

Hendricks’

Under the diet formulary protocol, this diet

is described as follows
ii.

Six Meals Diet

1)

The diet provides the 3 meals and 3 snacks
each day to provide adequate calories for
patients who need to consume small amounts of
food more frequently.

2)

The morning and afternoon snack shall consist
of 1 slice of bread, 2 ounces of cheese, 1
piece of fresh fruit or ½ cup of canned fruit
and 1 cup of beverage.

3)

The evening snack shall be the same as a
regular HS snack (see the HS snack section,
2-b-vii, of this protocol).

The HS Snack is described in the protocol as follows:
1)

HS snacks maintain consistent carbohydrate
and protein levels throughout the night for
insulin-dependent diabetics and provide
additional calories for patients who have
difficulty maintaining adequate weight. HS
snacks shall be composed of:

a)

1 serving of starch - either 4 graham
crackers or 6 saltine crackers, or 1 slice of
bread.

b)

1 piece of fresh fruit or 1/2 cup of canned
fruit, and
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c)

2 tablespoons of peanut butter for a regular
HS snack or 2 tablespoons of jelly for a low
protein/RENAL snack.

Defendant’s Reply, Attachment 1, pp. 5 and 6.

Mr. Hendricks was

unable to consume some of the food in the snack bags.

Hendricks

Declaration, ¶45.
B.

First Amendment Claim

With respect to Mr. Hendricks’ First Amendment claim, the
verified amended complaint alleges:
(29) During plaintiff’s stay at Belmont
Correctional Institution, he made several complaints
about his health and medical care.
(30) Plaintiff had been in contact with the Ohio
Justice & Policy Center; Americans Civil Liberties
Union; Crohn’s & Colitis Foundation of America; private
attorneys and physicians.
(31) On June 10, 2009, defendant Miller ordered,
and was present at the time, the seizure and
destruction of most of this material causing a delay in
filing this complaint.
From his declaration, it appears that Mr. Hendricks
intended to submit affidavits from two witnesses, a copy of his
notification of grievance form, and the decision of the chief
inspector.

Hendricks Declaration, ¶¶46, 47.

These documents

were not attached to his declaration as filed.

Defendants have

submitted these documents in connection with their reply as
Attachment 2.

According to the affidavits, two inmates observed

a corrections officer search and remove papers from Mr.
Hendricks’ legal box and then tear up these papers and throw them
away.

Defendants’ Reply, Attachment 2, pp. 3-4.

Both

affidavits also indicate that Warden Miller was “sitting on the
desk.”

Id.

According to the notification of grievance filed by

Mr. Hendricks on June 10, 2009, a correction officer searched his
legal box and “confiscated material/evidence crucial important
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for a civil litigation against BECI.”

Id. at p.1.

Further,

according to this grievance, “Warden Michele Miller ordered that
this evidence be destroyed and disposed of.”

Id.

The decision

of the chief inspector indicates a belief that the grievance was
directed to Warden Eberlin, denies it for failure to allege
Warden Eberlin’s personal involvement, and states that, to the
extent Mr. Hendricks is complaining about the actions of the
corrections officer, he failed to properly pursue the inmate
grievance procedure.
III.

Id. at p.2.
Motion for Summary Judgment

In their motion for summary judgment, defendants argue that
Mr. Hendricks has failed to demonstrate their deliberate
indifference to his serious medical need.

Further, they contend

that Mr. Hendricks’ has failed to exhaust his administrative
remedies relating to his retaliation claim against Warden Miller,
and that they are entitled to qualified immunity.

They also

contend that Mr. Hendricks’ Eighth Amendment claim is barred by
the statute of limitations because, as they interpret his
allegations relating to this claim, December 24, 2010 was the
latest date by which he could have filed his complaint.
With respect to Mr. Hendricks’ Eighth Amendment claim, the
defendants argue that there is no evidence in the file supporting
his claim that he has been diagnosed with Crohn’s disease.
Regardless, however, they assert that Mr. Hendricks’
institutional records demonstrate that he has received
appropriate dietary accommodations.

Defendants contend that any

continued distress Mr. Hendricks has suffered is a result of his
refusal to accept his diet passes and his commissary purchases of
spicy, seeded, or sugary foods and cigarettes, all of which are
items contraindicated for his digestive issues.
In response, Mr. Hendricks takes issue with the defendants’
assertion that he has not been diagnosed with Crohn’s disease and
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devotes pages of his brief and his exhibits (as detailed above)
to establishing in excruciating detail the existence of this and
numerous other gastrointestinal conditions.

However, in one

paragraph found on page 16 of his 25-page response, he describes
the nature of his Eighth Amendment claim as follows:
In this case, Plaintiff has offered evidence that
he endured pain and suffering while being denied the
prescribed low residue diet, notwithstanding the
absence of a tangible residual injury. The record
reflects that Plaintiff experienced severe pain,
bleeding, anemia, hypokalemia, and ultimately a
parastomal hernia resulting in surgical repair.
Moreover, Plaintiff suffered this pain while being
denied a prescribed diet that would help to alleviate
these very problems which Defendants’ motion concedes
was prescribed on several occasions, however, they
offer no proof that it was followed or as to why this
was denied, other than the Declaration from Defendant
Nesbitt - one of the defendants directly involved in
the denial.
See Response, p. 16.
Further, Mr. Hendricks states on pages 17-18,
In the case at bar, Defendants concede and
acknowledge the prescribed and needed low residue diet,
however they do not explain why this was interfered
with and/or denied by the Defendants. All Defendants
have done is point out that the low residue diet was,
in fact, needed and ordered. They have not submitted
any actual physical proof that this was actually
followed through with other than the Declaration from
Susan Nesbitt, one of the key defendants in this case,
stating that it was. Contrary to the Defendants
assertion that Plaintiff was provided a low residue
diet, the Defendants Declarations from Susan Nesbitt
and Mary Rousch, taken in conjunction with Exhibits “SW”, supra, and “LL” infra, actually shows that
Plaintiff was not provided with a low residue diet,
rather, he was provided a six small meal diet. This is
not the same as a low residue diet. Plaintiff submits
a copy of the Defendant’s own policy concerning “Diet
Formulary” which outlines a “six small meal” diet. It
should be noted that nowhere in this policy does it
even mention a low residue diet. Even parts of this
“six small meal” diet contained in the “snack bags”
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were not consumable by Plaintiff.
With respect to the remaining issues raised by the motion
for summary judgment, Mr. Hendricks argues that the defendants
are not entitled to qualified immunity because they were under an
obligation to provide medically prescribed or necessary diets
under the stipulation in Fussell v. Wilkinson.

Further, he

contends that, because his claim is limited to the time period
between February 20, 2009 and November, 2009, it is not barred by
the statute of limitations.

Additionally, he contends that he

has exhausted his claim against Ms. Miller as evidenced by the
grievance he filed and the disposition of that grievance issued
by the chief inspector.

With respect to the merits of his

retaliation claim, he contends that he has a “right to file nonfrivolous grievances and legal filings about mistreatment,” and
Ms. Miller’s destruction of his legal materials in retaliation
for doing so violates his First Amendment rights.
In reply, the defendants recognize that the Diet Formulary
Protocol does not specify a “low residue diet” and that,
consistent with this protocol, no such specific diet is available
at Belmont.

However, they contend Mr. Hendricks’ records

indicate that they “made every attempt” to provide a diet that
met his needs.

They argue that Mr. Hendricks has failed to raise

any genuine issue of material fact to the contrary.

Further,

they contend that, after Ms. Nesbitt’s offer in February, 2009,
to schedule Mr. Hendricks for consultations with diet
technicians, he did not complain to any Belmont healthcare staff
about his diet.

Additionally, they suggest that Mr. Hendricks’

commissary purchases indicate his failure to adhere to an
appropriate diet plan and reject as nonsensical his explanation
that he uses his commissary purchases to barter for food which he
can tolerate.

Defendants continue to argue that Mr. Hendricks’

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claims are barred by the statute of limitations, they are
entitled to qualified immunity, and he has failed to exhaust his
retaliation claim against Ms. Miller.
IV.

Analysis

Initially, the Court notes that because Mr. Hendricks has
specifically limited his claims to include only the time period
between February 20, 2009 and November, 2009, it will not
consider the statute of limitations argument raised by
defendants.

His complaint was filed within two years of those

dates.
A.

Eighth Amendment Claim

To establish an Eighth Amendment violation, a prisoner
must show that he or she has a serious medical condition and
that the defendants displayed a deliberate indifference to
his or her health.

Estelle v. Gamble, 429 U.S. 97 (1976);

Wilson v. Seiter, 501 U.S. 294 (1991).
a subjective and an objective component.

This formulation has both
Objectively, the

medical condition at issue must be “serious” as opposed to
“trivial,” “minor,” or “insubstantial.”

Subjectively, the

defendants accused of violating the Eighth Amendment must have
acted with a state of mind that can accurately be described as
“deliberate indifference.”

Each of these components requires

some elaboration.
It is not always easy to distinguish serious medical
conditions from those that are not sufficiently substantial to
implicate the Constitutional prohibition against cruel and
unusual punishment, and the facts concerning the seriousness of
an inmate’s condition are frequently in dispute.

In evaluating

such claims, courts have given weight to a variety of factors,
including whether the condition is one that a doctor or other
health care professional would find worthy of treatment, whether
it significantly affects everyday activities, and whether it
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causes (or, if left untreated, has the potential to cause)
chronic and substantial pain.

See Chance v. Armstrong, 143 F.3d

688, 702-03 (2d Cir. 1998); see also Harrington v. Grayson, 811
F.Supp. 1221 (E.D. Mich. 1993)(focusing on the severity of the
condition, the potential for harm if treatment is delayed, and
whether such a delay actually caused additional harm).
Under some circumstances, expert testimony may be needed to
establish the seriousness of a medical condition, particularly if
the inmate’s claim is founded upon an unreasonable delay in
treatment.
Cir. 2001).

See Napier v. Madison Co., Ky., 238 F.3d 739 (6th
In other cases, however, when the condition does not

involve “minor maladies or non-obvious complaints of a serious
need for medical care,” but rather “an obvious need for medical
care that laymen would readily discern as requiring prompt
medical attention by competent health care providers,” expert
testimony is not essential to a finding that a serious medical
condition is present.

Blackmore v. Kalamazoo County, 390 F.3d

890, 898 (6th Cir. 2004).
As to the subjective element, in Farmer v. Brennan, 511 U.S.
825, 839 (1994), the Court adopted "subjective recklessness as
used in the criminal law" as the appropriate definition for
deliberate indifference. It held that "a prison official cannot
be held liable under the Eighth Amendment for denying an inmate
humane conditions of confinement unless the official knows of and
disregards an excessive risk to inmate health or safety. . . ."
Id. at 837.

Officials must be aware of facts from which they

could conclude that a substantial risk exists and must actually
draw that conclusion.

Id.

Prison officials who know of a

substantial risk to the health or safety of an inmate are free
from liability if "they responded reasonably to the risk, even if
the harm ultimately was not averted." Id. at 844.
Because an Eighth Amendment medical claim must be
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premised on deliberate indifference, mere negligence by a
prison doctor or prison official with respect to medical
diagnosis or treatment is not actionable under 42 U.S.C.
§1983.

"[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."

Estelle v. Gamble, 429 U.S. 97, 106 (1976); see

also Brooks v. Celeste, 39 F.3d 125 (6th Cir. 1994).
The Court will turn first to the objective component of this
claim - the existence of a serious medical condition.

While the

parties may disagree on the precise diagnosis of Mr. Hendricks’
condition - whether ulcerative colitis or Crohn’s disease - the
fact that Mr. Hendricks’ suffered from a serious medical
condition is not at issue here.

Nor could it be given the

extensive, history of Mr. Hendricks’ medical care demonstrated by
the parties’ exhibits and set forth at length above.

Rather, the

focus of defendants’ motion for summary judgment is the
subjective component of an Eighth Amendment claim - whether they
acted with deliberate indifference in the face of Mr. Hendricks’
serious medical condition.

Mr. Hendricks argues that because the

defendants did not provide what he considers to be a “low residue
diet” as ordered by various doctors outside Belmont, they have
acted with deliberate indifference resulting in his documented
pain and suffering.

To the contrary, the defendants argue that,

although a “low residue diet” is not a diet specified under the
ODRC’s Diet Formulary Protocol, they made every attempt to
accommodate Mr. Hendricks’ dietary needs.

The Court agrees with

the defendants.
While the denial of a medically necessary diet may give rise
to deliberate indifference under certain circumstances, see
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Sellers v. Henman, 41 F.3d 1100 (7th Cir. 1994), Mr. Hendricks
has presented no such circumstances here.

Further, while “a

prisoner who suffers pain needlessly when relief is available”
may be able to demonstrate deliberate indifference, see Gorley v.
Sullivan County Jail Medical Dept., 2012 WL 1565416 (E.D. Tenn.
April 30, 2012), Mr. Hendricks has not done so here.

Mr.

Hendricks admits that he met with dietary staff at Belmont and
that dietary accommodations were made for him during his
incarceration at Belmont.

Further, he does not dispute that he

was issued at least one diet pass stating that he should not be
given peanut butter, wheat bread, corn, raw vegetables or fruit
and that he refused this diet pass.
Additionally, Mr. Hendricks provides no evidence of what he
considers to constitute a “low residue” diet nor does he explain
how the diet he received and a “low residue” diet differ.

He has

attached to his declaration a three-page document detailing
nutrition therapy for Crohn’s disease and ulcerative colitis with
various notations directed to him, although there is nothing
indicating from whom he received this information.

To the extent

that the Court may consider such information, it does not set
forth any specific “low residue” diet.

Rather, it contains lists

of recommended and non-recommended foods and appears consistent
with various dietary accommodations provided to Mr. Hendricks.
Mr. Hendricks offers nothing to rebut the defendants’
contention that they attempted to accommodate his diet within the
confines of the ODRC’s Diet Formulary Protocol.

His desire for a

“low residue” diet rather than the six small meals diet provided
for him constitutes nothing more than a disagreement with the
treatment provided to him.

Differences in judgment, however, are

insufficient to state a deliberate indifference claim. Estelle,
429 U.S. at 105-106. Similarly, to the extent Mr. Hendricks
believes that he should have been prescribed nutritional
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supplements, he fails to demonstrate deliberate indifference for
this very same reason.
To the extent that Mr. Hendricks believes that his Crohn’s
flares and hernia surgery requiring hospitalization while he was
incarcerated at Belmont are clear evidence of defendants’
deliberate indifference, he is mistaken. It may be that, based on
Mr. Hendricks’ medical history, a reasonable trier of fact could
conclude that the defendants were aware that he faced a
substantial risk of additional harm in the way of flare-ups or
other gastrointestinal complications. However, as discussed
above, under Farmer, knowledge alone is not sufficient to
demonstrate deliberate indifference. Rather, Mr. Hendricks must
demonstrate that in the face of this knowledge, the defendants
disregarded the risk of further gastrointestinal complications or
failed to take reasonable measures to prevent them. This he has
failed to do. Mr. Hendricks simply has provided no evidence from
which a trier of fact could conclude that the defendants’
response, in the form of diet accommodations, was unreasonable,
let alone intentionally or recklessly calculated to cause him
harm.
Absent any evidence of this sort, Mr. Hendricks has not
raised a genuine issue of material fact on the issue of
deliberate indifference sufficient to withstand the motion for
summary judgment. See Farmer, 511 U.S. 844. Consequently, the
Court will recommend that defendants’ motion for summary judgment
be granted as to Mr. Hendricks’ Eighth Amendment claim.
B. First Amendment Claim
Turning to Mr. Hendricks’First Amendment claim against Ms.
Miller, the Court notes first defendants’ argument that he has
not exhausted this claim.

Mr. Hendricks disputes this assertion

and has provided copies of the grievance he filed against Ms.
Miller and the disposition of that grievance from the chief
inspector.

In light of this evidence, Mr. Hendricks may have

raised a genuine issue of material fact on the issue of
exhaustion.

However, because Mr. Hendricks’ claim clearly fails
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on its merits, the Court will not consider the issue of
exhaustion.

See Woodford v. Ngo, 548 U.S. 81, 101 (2006)(the

PLRA exhaustion requirement is not jurisdictional and district
courts may “dismiss plainly meritless claims without first
addressing what may be a much more complex question, namely,
whether the prisoner did in fact exhaust available administrative
remedies.”)
To the extent that Mr. Hendricks intends to set forth a
retaliation claim against Ms. Miller, there is no question that
retaliation for the exercise of constitutional rights is itself a
violation of the Constitution.

To state a retaliation claim, a

plaintiff must allege three elements: (1) that he or she was
engaged in protected conduct; (2) an adverse action was taken
against him or her that would deter a person of ordinary firmness
from continuing to engage in that conduct; and (3) the adverse
action was motivated at least in part by the plaintiff’s
protected conduct.
Cir. 1999).

Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th

Retaliation claims must include a “chronology of

events from which retaliation may plausibly be inferred.”

Ishaaq

v. Compton, 900 F.Supp. 935 (W.D. Tenn. 1995), quoting Cain v.
Lane, 857 F.2d 1139, 1143 n. 6 (7th Cir. 1988).

The retaliatory

filing of a disciplinary charge or other negative actions strike
at the heart of an inmate’s constitutional right to seek redress
of grievances, so the injury to this right inheres in the
retaliatory conduct itself.

Id.

“An inmate has an undisputed

First Amendment right to file grievances against prison officials
on his own behalf.”

Herron v. Harrison, 203 F.3d 410, 415 (6th

Cir. 2000).
Assuming Mr. Hendricks could satisfy the first two elements
of his retaliation claim, he fails to provide any facts
establishing a causal connection between the filing of grievances
and the alleged destruction of his legal materials at the
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direction of Ms. Miller.

It is well recognized that retaliation

is easy to allege and that it can seldom be demonstrated by
direct evidence.

See Harbin–Bey v. Rutter, 420 F.3d 571, 580

(6th Cir. 2005); Murphy v. Lane, 833 F.2d 106, 108 (7th Cir.
1987). “[A]lleging merely the ultimate fact of retaliation is
insufficient.”

Murphy, 833 F.2d at 108. “[C]onclusory

allegations of retaliatory motive ‘unsupported by material facts
will not be sufficient to state ... a claim under §1983.’ ”
Harbin–Bey, 420 F.3d at 580, quoting Gutierrez v. Lynch, 826 F.2d
1534, 1538–39 (6th Cir. 1987); see also Murray v. Unknown Evert,
84 F. App'x 553, 556 (6th Cir. 2003) (in complaints screened
pursuant to 28 U.S.C. § 1915A, “[c]onclusory allegations of
retaliatory motive with no concrete and relevant particulars fail
to raise a genuine issue of fact for trial”) (internal quotations
omitted); Lewis v. Jarvie, 20 F. App'x 457, 459 (6th Cir. 2001)
(“bare allegations of malice on the defendants' parts are not
enough to establish retaliation claims”).

Mr. Hendricks makes no

allegations and provides no evidence from which a trier of fact
could conclude that Ms. Miller had any awareness of complaints he
had made or grievances he had filed such that this knowledge
motivated the alleged destruction of his legal materials.
Consequently, the Court will recommend that summary judgment be
granted as to Mr. Hendricks’ retaliation claim.
Finally, to the extent that Mr. Hendricks’ First Amendment
claim is intended as a denial of access to the courts claim,
summary judgment also is appropriate.

In order to succeed on

such a claim, Mr. Hendricks must demonstrate actual prejudice to
underlying litigation.

See Rodgers v. Hawley, 14 Fed.Appx. 403,

409 (6th Cir. 2001), citing Lewis v. Casey, 518 U.S. 343 (1996).
In his verified amended complaint Mr. Hendricks alleges only a
delay in filing the complaint in this action.

Mr. Hendricks has

not been prejudiced in pursuing this litigation by any delay in
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filing the complaint.

Consequently, the Court will recommend

that the motion for summary judgment be granted as to any access
to the courts claim.
V.

Recommended Disposition

For the reasons stated above, it is recommended that the
defendants’ motion for summary judgment (#101) be granted.
PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that
party may, within fourteen days of the date of this Report, file
and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made,
together with supporting authority for the objection(s).

A judge

of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.

Upon proper

objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to object
to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and
Recommendation de novo, and also operates as a waiver of the
right to appeal the decision of the District Court adopting the
Report and Recommendation.

See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

/s/ Terence P. Kemp
United States Magistrate Judge

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