Dodson v. Banks et al

Filing 13

ORDER and REPORT AND RECOMMENDATIONS re 7 MOTION to Dismiss: The Magistrate Judge RECOMMENDS that Defendants' Motion to Dismiss be GRANTED such that Plaintiff's claims against Wexford Defendants are DISMISSED WITH PREJUDICE. Defendants' 12 MOTION to Strike is DENIED AS MOOT. Objections to R&R due within fourteen (14) days of the date of this Report. Signed by Magistrate Judge Elizabeth Preston Deavers on 12/1/2011. (er1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

CHARLES LEWIS DODSON,
Plaintiff,
Civil Action 2:11-cv-164
Judge Michael H. Watson
Magistrate Judge E.A. Preston Deavers

v.

WARDEN EDWARD BANKS, et al.,
Defendants.

ORDER AND REPORT AND RECOMMENDATION
Plaintiff, Charles Lewis Dodson, an Ohio inmate who is proceeding in forma pauperis
and without the assistance of counsel, brings this civil rights action under 42 U.S.C. § 1983
against Defendants Noble Correctional Institution (“NCI”) Warden Edward Banks and NCI
Health Care Administrator Vanessa Sawyer.1 Plaintiff also named as Defendants Wexford
Health Sources, Inc.; Wexford Health Services Administrator Sara Seeburger; and Wexford
employees at Noble Correctional Institute (collectively, the “Wexford Defendants”); as well as
“all unknown others,” including unspecified administrative and medical staff. He seeks
monetary and injunctive relief. Plaintiff asserts that Defendants utilized cruel and unusual
punishment and were deliberately indifferent to his serious medical needs in violation of the
Eighth Amendment to the United States Constitution. This matter is before the Court for
consideration of Wexford Defendants’ Motion to Dismiss pursuant to Federal Rules of Civil

1

Defendants Banks and Sawyer filed an Answer to the Complaint and are not movants
for the instant motion.

Procedure 12(b)(6) and 12(b)(5). For the reasons that follow, it is RECOMMENDED that
Defendant’s Motion to Dismiss be GRANTED. (ECF No. 7.)
I. BACKGROUND
Plaintiff is presently incarcerated at NCI in Caldwell, Ohio. According to Plaintiff as set
forth in his Complaint, he suffers from complications resulting from a broken left cheekbone.
Plaintiff alleges that prison and medical officials did not adequately treat his cheekbone when he
broke it some years ago. Plaintiff alleges that the medical staff set his cheekbone incorrectly.
His complications worsened in 2010, causing sinus trouble, headaches, dizzy spells, and possible
inner ear trouble. Plaintiff alleges that his symptoms “escalated” in 2010 as a result of a
reduction and eventual cessation of his prescription medication. (Compl. 5, ECF No. 3.) On
October 15, 2010, Plaintiff presented his symptoms to the nurse’s sick call. A doctor did not
treat Plaintiff or prescribe him the medication he desired. Instead, a nurse provided Plaintiff
with over-the-counter (“OTC”) medication, and charged him a co-pay fee for ongoing care.
Plaintiff asserts that he has been denied medical care because of “budget cut backs” and that a
doctor should have prescribed him medication. (Id.) He further maintains that instead of a
nurse, he should have seen a doctor and that he should not be charged for these visits, which he
characterizes as “chronic” care. (Pl.’s Mem. In Opp. 2, ECF No. 9.) Plaintiff does not allege
that NCI consistently denies him access to a doctor; nor does he allege any other specific
instances in which he was in need of medical attention but denied care.
On February 24, 2011, Plaintiff filed his Complaint. Plaintiff asserts that Defendants’
denial of full and proper medical care amounted to cruel and unusual punishment and deliberate
indifference. (Compl. 5, ECF No. 3.) Plaintiff seeks damages for pain and suffering, punitive
damages, and an injunction compelling “full care - even repair surgery or treatment.” (Id. at 6.)
2

On April 15, 2011, the Wexford Defendants filed the subject Motion to Dismiss. (ECF
No. 7.) The Wexford Defendants assert that they are entitled to judgment under Rules 12(b)(6)
and 12(b)(5) because Plaintiff has failed to state a claim, never properly effected service and did
not exhaust his administrative remedies.

Plaintiff counters that he did sufficiently exhaust his administrative remedies. He
explains that his grievances have consistently stated his inability to see a doctor and his
disagreement that his condition is such that he should not have to pay for his care. He also
emphasizes that the care he received was not adequate. Plaintiff contends that his claim is
properly filed under 42 U.S.C. § 1983 and that Defendants’ motion is “pre-mature” because his
incarceration makes it difficult to perform discovery. (Pl.’s Opp. 4, ECF No. 9.) Plaintiff also
posits that through discovery, he could specify whom he intends to sue under his “all unknown
others” category. (Id. at 3.) Finally, Plaintiff represents that, if given more time, he can obtain
testing from a medical professional to support his allegations.
II.

MOTION TO DISMISS STANDARD

Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain a “short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]
pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause
of action,’” is insufficient. Ashcroft v. Iqbal, 566 U.S. ----, ----, 129 S.Ct. 1937, 1949 (2009).
Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a
complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on
its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Facial
3

plausibility is established “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, 129
S.Ct. 1949.
In considering whether this facial plausibility standard is met, a Court must construe the
complaint in the light most favorable to the non-moving party, accept all factual allegations as
true, and make reasonable inferences in favor of the non-moving party. Total Benefits Planning
Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008) (citations
omitted). In addition, the Court holds pro se complaints “‘to less stringent standards than formal
pleadings drafted by lawyers.’” Garrett v. Belmont County Sheriff’s Dept., No. 08-3978, 2010
WL 1252923, at *2 (6th Cir. April 1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520
(1972)). The Court is not required, however, to accept as true mere legal conclusions
unsupported by factual allegations. Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 555).
III.

ANALYSIS

As set forth above, the Wexford Defendants advance three alternative bases for dismissal.
First, they contend that Plaintiff’s complaint fails to state a claim upon which relief can be
granted. Second, they assert that dismissal is appropriate because Plaintiff failed to properly
effect service. Finally, the Wexford Defendants contend that Plaintiff failed to exhaust his
administrative remedies as required under 42 U.S.C. § 1997e, as amended by the Prison
Litigation Reform Act (“PLRA”). Because the undersigned concludes that Plaintiff has failed to
state an Eighth Amendment claim, it is unnecessary to consider Defendants’ alternative
arguments in favor of dismissal.
It is well established that “[t]he Eighth Amendment forbids prison officials from
unnecessarily and wantonly inflicting pain on an inmate by acting with deliberate indifference
4

toward [his] serious medical needs.” Jones v. Muskegon County, 625 F.3d 935, 941 (6th Cir.
2010) (internal quotations and citations omitted). A claim for deliberate indifference “has both
objective and subjective components.” Alspaugh v. McConnell, 643 F.3d 162, 169 (6th Cir.
2011). The United States Court of Appeals for the Sixth Circuit has explained:
The objective component mandates a sufficiently serious medical need. [Blackmore
v. Kalamazoo Cnty., 390 F.3d 890, 895 (6th Cir.2004).] The subjective component
regards prison officials’ state of mind. Id. 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.” Id. at 895–96 (internal quotation marks and citations omitted). The
prison official must “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
896 (internal quotation marks and citation omitted).
Barnett v. Luttrell, 414 F. App’x 784, 787–88 (6th Cir. 2011).
The Sixth Circuit has also noted that in the context of deliberate indifference claims:
“[W]e distinguish 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).
Where a prisoner alleges only that the medical care he received was inadequate,
“federal courts are generally reluctant to second guess medical judgments.” Id.
However, it is possible for medical treatment to be “so woefully inadequate as to
amount to no treatment at all.” Id.
Alspaugh, 643 F.3d at 169. Along similar lines, “[o]rdinary medical malpractice does not satisfy
the subjective component.” Grose v. Corr. Med. Servs, Inc., 400 F. App’x 986, 988 (6th Cir.
2010). Furthermore, “a difference of opinion between [a prisoner] and the prison health care
providers and a dispute over the adequacy of [a prisoner’s] treatment . . . does not amount to an
Eighth Amendment claim.” Apanovitch v. Wilkinson, 32 F. App’x 704, 707 (6th Cir. 2002).
Here, Plaintiff’s allegations fail to sufficiently plead both the objective and the subjective
components of an Eighth Amendment deliberate indifference claim. Although Plaintiff’s failure
to sufficiently plead one of these components is dispositive, the undersigned nonetheless
5

addresses both components for the sake of completeness.
A.

Objective Component
Plaintiff fails to allege a sufficiently serious medical need that satisfies the objective

component of a deliberate indifference claim. Plaintiff’s disagreement with a medical
practitioner’s decision to discontinue his prescription medication does not amount to an Eighth
Amendment claim. See Apanovitch, 32 F. App’x at 707. Defendant’s classification of Plaintiff’s
condition as non-chronic such that he must pay for his OTC medication fails to satisfy the
objective component. Although a prison must provide its inmates with adequate medical care,
this care does not necessarily have to be free of charge. See Reynolds v. Wagner, 128 F.3d 166,
174 (3d Cir. 1997) (“If a prisoner is able to pay for medical care, requiring such payment is not
‘deliberate indifference to serious medical needs.’”). Here, Plaintiff has not alleged that he is
unable to pay for his OTC medication. Plaintiff’s contention that he should have been examined
by a doctor instead of a nurse on October 15, 2010 likewise fails to meet the objective
requirement because he has failed to allege circumstances suggesting an objective need for a
doctor on that date. As set forth above, Plaintiff sought medical attention for discomforts such as
sinus trouble, headaches, dizzy spells, and possible inner ear trouble. These symptoms do not
evidence an obvious immediate need for a doctor rather than a nurse. Finally, Plaintiff has failed
to offer verifying medical evidence demonstrating that his delay in seeing a doctor cause serious
medical injury.
B.

Subjective Component
Plaintiff likewise fails to allege facts sufficient to establish the subjective component of a

deliberate indifference claim. Indeed, Plaintiff’s complaint is self-defeating in this regard.
Plaintiff does not allege that Defendants perceived a “substantial risk” to his health, nor does he
6

allege that Defendants “disregarded that risk.” Comstock, 273 F.3d at 703. Rather, Plaintiff
simply alleges that he received “inadequate care” due to “budget cut backs.” (Compl. 5, ECF
No. 3.) Therefore, it is clear that even Plaintiff does not believe that his nurse and other officials
“subjectively perceived a risk of harm and then disregarded it.” See Comstock, 273 F.3d at 703.
Moreover, Plaintiff’s allegations that Defendants denied him medical care are belied by his
allegations that he presented his symptoms to a nurse.
IV.

MOTION TO STRIKE

After the Wexford Defendants filed their Reply, Plaintiff filed a “Rebuttal
Memorandum.” The Wexford Defendants moved to strike the document as inconsistent with the
Court’s Local Rules, which prohibit such filings without leave of Court upon a showing of good
cause. S. D. Ohio Civ. R. 7.2(a)(2). The Court has reviewed the memorandum and concludes
that nothing contained therein alters the analysis set forth above. Accordingly, Defendants’
Motion to Strike is DENIED AS MOOT. (ECF No. 12.)
IV.

CONCLUSION

For the reasons state above, Defendants’ Motion to Strike is DENIED AS MOOT.
(ECF No. 12.) Further, the undersigned RECOMMENDS that Defendants’ Motion to Dismiss
(ECF No. 7) be GRANTED such that Plaintiff’s claims against Wexford Defendants are
DISMISSED WITH PREJUDICE. (ECF No. 7.)
V.

PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, that
party may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in

7

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when timely objections are filed,
appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to
specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation
omitted)).
Date: December 1, 2011

/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge

8