Hendricks v. Reeves-Valentine

Filing 37

OPINION AND ORDER granting 26 motion for summary judgment. Signed by Magistrate Judge Norah McCann King on 2/15/13. (rew)

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

BENJAMIN HENDRICKS,
Plaintiff,
vs.

Case No. 2:11-cv-938
Magistrate Judge King

TOBBI REEVES-VALENTINE, et al.,
Defendants.

OPINION AND ORDER
Plaintiff Benjamin Hendricks, a state inmate incarcerated at the
Frazier Health Center of the Pickaway Correctional Institution
(“PCI”), brings this action against Tobbi Reeves-Valentine
(“defendant”), identified as the “Health Care Administrator (or
Medical Operations Manager” at PCI, Complaint, Doc. No. 5, ¶ 10,1 under
42 U.S.C. § 1983.

Plaintiff alleges that defendant acted with

deliberate indifference to his medical needs in violation of the
Eighth Amendment to the United States Constitution.

This matter is

before the Court, with the consent of the parties pursuant to 28
U.S.C. § 636(c), for consideration of defendant’s Motion for Summary
Judgment (“Defendant’s Motion”), Doc. No. 26.

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Plaintiff opposes

Plaintiff also includes as defendants 25 unnamed John and Jane Doe
defendants. However, service of process has not been made on the unnamed
John and Jane Doe defendants within the 120 days required by Fed. R. Civ. P.
4(m). Moreover, it would appear that any attempt to now join a new party
would be untimely. See Fed. R. Civ. P. 15(c)(1). See also Cox v. Treadway,
75 F.3d 230, 240 (6th Cir. 1996)(“Substituting a named defendant for a ‘John
Doe’ defendant is considered a change in parties, not a mere substitution of
parties.”). The Court therefore regards defendant Reeves-Valentine as the
only defendant in this action.

Defendant’s Motion.

Plaintiff’s Response in Opposition to Defendant’s

Motion for Summary Judgment (“Plaintiff’s Response”), Doc. No. 29.
Defendant has filed a reply.

Defendant’s Reply Brief to Plaintiff’s

Response in Opposition to Defendant’s Motion for Summary Judgment
(“Defendant’s Reply”), Doc. No. 32.

Plaintiff, after being granted

leave, filed a sur-reply, Plaintiff’s Sur-reply, Doc. No. 35, to which
defendant has filed a response.
Sur-Reply, Doc. No. 36.

Defendant’s Response to Plaintiff’s

This matter is now ripe for consideration.

For the reasons that follow, Defendant’s Motion is GRANTED.
I.

Background
Plaintiff alleges that he suffers from Crohn’s disease and that,

as a result, he has undergone an ileostomy and must use an ostomy
device or pouch.

Complaint, ¶¶ 14-16.

A specific ostomy device and

associated supplies, i.e., colostomy bag, part number 401932, and
wafer, part number 125262, Plaintiff’s Response, p. 15, were
prescribed for him by a physician in September 2010.
¶ 17.

Id.; Complaint,

However, plaintiff was denied those supplies for “about a six

week period between January-February 2011.”

Complaint, ¶ 18.

Instead, plaintiff alleges, he was provided supplies designed for a
urostomy.

Plaintiff’s Response, pp. 2, 10.2

Plaintiff complained to defendant, who initially insisted that
the necessary supplies were “readily available.”

Complaint, ¶¶ 19-23.

On February 11, 2012, defendant confirmed that the supplies were not
in fact available “and a rush order was placed . . . .”

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Id. at ¶ 24.

A urostomy bag is designed to catch and hold the discharge of urine;
plaintiff was prescribed supplies for an ileostomy, which are designed to
catch and hold the discharge of fecal matter. Plaintiff’s Response, p. 2.

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Plaintiff again received the proper supplies beginning on February 15,
2011. Id. at ¶ 25.
The Complaint alleges that proper ostomy supplies are “vital to
plaintiff’s activities of daily living.”

Id. at ¶ 2. Defendant,

plaintiff alleges, “acted in a manner that no objectively reasonable
government and/or medical employee would have acted.”
Plaintiff seeks declaratory and monetary relief.

Id. at ¶ 27.

Id. at PAGEID# 32.

In Defendant’s Motion, defendant argues that plaintiff has failed
to allege or establish either injury or deliberate indifference on her
part.
II.

STANDARD
The standard for summary judgment is well established.

This

standard is found in Rule 56 of the Federal Rules of Civil Procedure,
which provides in pertinent part:
The judgment sought shall
discovery and disclosure
affidavits show that there
material fact and that the
as a matter of law.
Fed. R. Civ. P. 56(c).

be rendered if the pleadings,
materials on file, and any
is no genuine issue as to any
movant is entitled to judgment

Pursuant to Rule 56(c), summary judgment is

appropriate if “there is no genuine issue as to any material fact.”
Id.

In making this determination, the evidence “must be viewed in the

light most favorable” to the non-moving party.
& Co., 398 U.S. 144, 157 (1970).

Adickes v. S.H. Kress

Summary judgment will not lie if the

dispute about a material fact is genuine, “that is, if the evidence is
such that a reasonable jury could return a verdict for the non-moving
party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

However, summary judgment is appropriate if the opposing party “fails

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to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the
burden of proof at trial.”
322 (1986).

Celotex Corp. v. Catrett, 477 U.S. 317,

The “mere existence of a scintilla of evidence in support

of the [opposing party’s] position will be insufficient; there must be
evidence on which the jury could reasonably find for the [opposing
party].”

Anderson, 477 U.S. at 252.

The “party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis for its
motion, and identifying those portions” of the record which
demonstrate “the absence of a genuine issue of material fact.”
Celotex Corp., 477 U.S. at 323.

The burden then shifts to the

nonmoving party who “must set forth specific facts showing that there
is a genuine issue for trial.”
Fed. R. Civ. P. 56(e)).

Anderson, 477 U.S. at 250 (quoting

“Once the moving party has proved that no

material facts exist, the non-moving party must do more than raise a
metaphysical or conjectural doubt about issues requiring resolution at
trial.”

Agristor Fin. Corp. v. Van Sickle, 967 F.2d 233, 236 (6th

Cir. 1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986)).
III. DISCUSSION
Section 1983 provides in relevant part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights,
privileges,
or
immunities
secured
by
the
Constitution and laws, shall be liable to the party injured

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in an action at law, suit in
proceeding for redress . . . .
42 U.S.C. § 1983.

equity,

or

other

proper

A prima facie case under § 1983 requires evidence

of (1) conduct by an individual acting under color of state law, and
(2) the deprivation of a right secured by the Constitution or laws of
the United States.

Day v. Wayne Cnty. Bd. of Auditors, 749 F.2d 1199,

1202 (6th Cir. 1984) (citing Parratt v. Taylor, 451 U.S. 527, 535
(1981)).

Section 1983 merely provides a vehicle for enforcing

individual rights found elsewhere and does not itself establish any
substantive rights.

See Gonzaga Univ. v. Doe, 536 U.S. 273, 285

(2002).
In the case presently before the Court, plaintiff alleges that
defendant acted with deliberate indifference to his medical needs in
violation of the Eighth Amendment to the United States Constitution.
See Estelle v. Gamble, 429 U.S. 97, 103-04 (1976).

A claim of

deliberate indifference to an inmate’s serious medical needs includes
both an objective and a subjective component.

The objective component

requires a plaintiff to show the existence of a “sufficiently serious”
medical need.

Farmer v. Brennan, 511 U.S. 825, 834 (1994).

The

subjective component requires a plaintiff to “allege facts which, if
true, would show that the official being sued subjectively perceived
facts from which to infer substantial risk to the prisoner, that he
did in fact draw the inference, and that he then disregarded that
risk.”

Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001) (citing

Farmer, 511 U.S. at 837).

However, “a plaintiff need not show that

the official acted ‘for the very purpose of causing harm or with
knowledge that harm will result.’”

Id. (quoting Farmer, 511 U.S. at

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835).

“Instead, ‘deliberate indifference to a substantial risk of

serious harm to a prisoner is the equivalent of recklessly
disregarding that risk.’”

Id. (quoting Farmer, 511 U.S. at 836).

“A serious medical need is ‘one that has been diagnosed by a
physician as mandating treatment or one that is so obvious that even a
lay person would easily recognize the necessity for a doctor's
attention.’”

McCarthy v. Place, 313 F. App’x 810, 814 (6th Cir. 2008)

(quoting Harrison v. Ash, 539 F.3d 510, 518 (6th Cir. 2008)).

“A

plaintiff may establish the serious medical needs requirement in one
of two ways.”
2011).

Blosser v. Gilbert, 422 F. App’x 453, 460 (6th Cir.

First, for obvious medical needs left completely untreated,

“the delay alone in providing medical care creates a substantial risk
of serious harm.”

Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 897

(6th Cir. 2004).

Second, where a “̔deliberate indifference’ claim is

based on the prison's failure to treat a condition adequately, or
where the prisoner's affliction is seemingly minor or non-obvious,” a
plaintiff must “place verifying medical evidence in the record to
establish the detrimental effect of the delay in medical treatment.”
Blackmore, 390 F.3d at 898 (citing Napier v. Madison Cnty., 238 F.3d
739, 742 (6th Cir. 2001).

See also Blosser, 422 F. App’x at 460.

The

requirement of verifying medical evidence “ensures an accurate
appraisal of whether the ‘alleged deprivation is sufficiently
serious.’”

Cain v. Irwin, 286 F. App’x 920, 926 (6th Cir. 2008)

(quotations omitted) (quoting Napier, 238 F.3d at 742)).
Plaintiff’s claim falls within the second category, despite his
arguments to the contrary.

Plaintiff argues that his need for the

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specifically “prescribed ostomy supplies w[as] so obvious that the
delay alone in receiving them created a substantial risk of serious
harm.”

Plaintiff’s Response, p. 7.

The “obviousness standard” that

plaintiff seeks to invoke “refers to a doctor’s attention, and thus is
primarily applicable to claims of denial or delay of any medical
treatment rather than claims that a plaintiff was denied or delayed in
receiving a specific type of medical treatment.”

Blosser, 422 F.

App’x at 460 (citations omitted) (emphasis in original).

Plaintiff

alleges that he received the wrong ostomy supplies for a period of six
weeks; he does not argue that his medical needs were entirely unmet or
that the care actually provided amounted to no care at all.

Thus,

plaintiff’s claim is that defendant failed to treat his condition
adequately;

under this circumstance, plaintiff must, in order to

succeed on his claim, provide verifying medical evidence of the
detrimental effect of the delay in proper medical treatment.

See id.

(citing Blackmore, 390 F.3d at 898).
Plaintiff has not provided any such evidence.

In fact, plaintiff

does not even allege that he suffered an injury as a result of his
receipt of improper ostomy supplies.3

Furthermore, there is no

evidence that plaintiff did not or could not use the supplies actually
provided, see Plaintiff’s Response, p. 17 (“[Plaintiff] acknowledged
that he understood the situation and appreciated my work on the
matter, and agreed to work with current situation until the new bags
arrived.”), and plaintiff concedes that, during the relevant period,

3

Plaintiff refers to a “skin-sensitivity issue,” but it appears that the
condition was “exacerbated” by “Stevens-Johnson syndrome,” not by his receipt
of the wrong ostomy supplies. Complaint, ¶ 17; Plaintiff’s Sur-reply, p. 2.

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he “was in a hospital-like setting” and “would merely ask for
assistance” “when he did have problems with leaks [and] cleaning.”
Plaintiff’s Sur-reply, p. 3.

Plaintiff did not complain of pain

during his February 9, 2011 monthly assessment.

See Plaintiff’s

Response, p. 17.4
Although a deliberate indifference claim does not require actual
harm, see Blackmore, 390 F.3d at 899 (quoting Farmer, 511 U.S. at
827), where, as here, the claim is based on the prison’s failure to
treat a condition adequately, verifying medical evidence of actual
harm “ensures an accurate appraisal of whether the ‘alleged
deprivation is sufficiently serious.’”
(quoting Napier, 238 F.3d at 742).

Cain, 286 F. App’x at 926

Plaintiff’s failure to produce

such evidence demonstrates that no “substantial risk of serious harm”
existed.
Furthermore, plaintiff has failed to adduce evidence that
defendant deliberately or recklessly disregarded a known risk of
injury to plaintiff by reason of the delay in providing the proper
ostomy supplies.

The evidence establishes that defendant responded to

plaintiff’s complaints.

Complaint, ¶¶ 19-23.

Although she was

mistaken in her belief that the supplies were readily available,
mistake or even negligence on the part of a prison official is not
tantamount to deliberate indifference.

See Estelle, supra, 429 U.S.

at 106.
4
Plaintiff does contend in his response to Defendant’s Motion, but did not
allege in the Complaint, that he was unable to keep a surgical consultation
in connection with a hernia condition because he did not have the proper
supplies. Plaintiff’s Response, pp. 5-6, 11. Plaintiff does not allege any
medical complications as a result, however.

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For both these reasons, the Court concludes that defendant is
entitled to summary judgment on plaintiff’s deliberate indifference
claim.
WHEREUPON, Defendant’s Motion for Summary Judgment, Doc. No. 26,
is GRANTED.

The Clerk shall enter FINAL JUDGMENT in favor of

defendant.

February 15, 2013

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

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