Lawson v. McQuate et al

Filing 6

INITIAL SCREENING AND REPORT AND RECOMMENDATIONS re 5 Complaint - It is hereby RECOMMENDED that the complaint be DISMISSED as to defendants Charles Jenkins, Beth Higginbothum, Alice Ault, Corby Free, Dr. Gary Artrip, Dr. Larry Houts, Terry Harris , and Mona Parks. These defendants are not required to answer the complaint unless later ordered to do so by the Court. Defendants Jessica McQuate and Dina Cardaras are ORDERED to respond to the complaint w/in 45 days of being served with summons and complaint - objections due w/in 14 days. Signed by Magistrate Judge Mark R. Abel on 07/09/2012. (sr1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
James H. Lawson, Jr.,

:

Plaintiff

Defendants

Judge Smith

:

Jessica McQuate, et al.,

Civil Action 2:12-cv-0533

:

v.

:

Magistrate Judge Abel

:

INITIAL SCREENING
REPORT AND RECOMMENDATION
Plaintiff James H. Lawson, Jr., an inmate at Chillicother Correctional Institution,
brings this prisoner civil rights action under 42 U.S.C. §1983 alleging that defendants
have denied him medical care. This matter is before the Magistrate Judge for a Report
and Recommendation on initial screening of the complaint pursuant to 28 U.S.C.
§1915A(a) and (b)1 and 42 U.S.C. §1997e(c) to identify cognizable claims, and to dismiss

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The full text of §1915A reads:
(a) Screening.--The court shall review, before docketing, if feasible or, in any event, as soon as practicable after
docketing, a complaint in a civil action in which a prisoner
seeks redress from a governmental entity or officer or employee of a governmental entity.
(b) Grounds for Dismissal.--On review the court shall
identify cognizable claims or dismiss the complaint, or any
portion of the complaint, if the complaint-(1) is frivolous, malicious, or fails to state a

the complaint, or any portion of it, which is frivolous, malicious, fails to state a claim
upon which relief may be granted, or seeks monetary relief from a defendant who is
immune from such relief. The Magistrate Judge finds that the complaint fails to state a
claim upon which relief may be granted against defendants Charles Jenkins, Beth Higginbothum, Alice Ault, Corby Free, Dr. Gary Artrip, Dr. Larry Houts, Terry Harris, and
Mona Parks and therefore RECOMMENDS dismissal of the complaint as to those
defendants. The lawsuit shall continue as to plaintiff’s claims against defendants Jessica
McQuate and Dino Cardaras.
The complaint alleges that on July 21, 2010 plaintiff James H. Lawson, Jr. was
seen by defendant nurse Dino Cardaras for complaints of a headache, dizziness, fever
and tightness in his chest. Cardaras dismissed the large reddish spot/mark on Lawson's
left leg as heat rash. He did not take Lawson's temperature because there were no probe
covers, but Cadaras nonetheless recorded his temperature in his notes. Before leaving
the medical office, Lawson asked to see a doctor. That request was denied. Complaint,
¶¶ 5-6. It is the "Culture of Care" at the Chillicothe Correctional Institution to deny
claim upon which relief may be granted; or
(2) seeks monetary relief from a defendant who
is immune from such relief.
(c) Definition.--As used in this section, the term "prisoner" means any person incarcerated or detained in any
facility who is accused of, convicted of, sentence for, or adjudicated delinquent for, violations of criminal law or terms
and conditions of parole, probation, pretrial release, or
diversionary program.
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medical care to inmates. Id., Complaint, ¶ 7.
Within 24 hours, Lawson was admitted to the Ohio State University Medical
Center, where he was placed in the infectious disease unit and given antibiotics. When
he returned to the Chillicothe Correctional Institution on July 27, he was to continue
taking the prescribed antibiotics. But when he arrived at the prison, no steps were taken
to insure that he received the prescribed medication. Complaint, ¶¶ 2 and 7. Instead,
defendant nurse Jessica McQuate cleared Lawson for return to the general population,
where he did not receive the antibiotics. Complaint, ¶¶ 2-3. Lawson then experienced
increased pain and swelling in his left foot. His request for crutches was denied.
McQuate and Cardaras made no effort to assess or inquire into why Lawson needed
crutches. Lawson was returned to the Ohio State University Medical Center. Complaint, ¶ 3.
The complaint further contains the conclusory allegation that defendants Charles
Jenkins, Beth Higginbothum, Alice Ault, Corby Free, Dr. Gary Artrip, Dr. Larry Houts,
Terry Harris, and Mona Parks "have all directly or indirectly conspired with others to
covery-up their misconduct and negligent medical care" by failing to favorably act on
his grievances. Complaint, ¶¶ 9-12.
Rule 8(a), Federal Rules of Civil Procedure provides for notice pleading. Conley
v. Gibson, 355 U.S. 41, 47 (1957). The United States Supreme Court held in Erickson v.
Pardus, 551 U.S. 89, 93 (2007):
. . . Rule 8(a)(2) requires only "a short and plain statement of the claim
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showing that the pleader is entitled to relief." Specific facts showing that
the pleader is entitled to relief are not necessary; the statement need only
"'give the defendant fair notice of what the . . . claim is and the grounds
upon which it rests.': Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555, 127
S.Ct. 1955 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Moreover, pro se complaints must be liberally construed. Erickson, 551 U.S. at 94; Hughes
v. Rowe, 449 U.S. 5, 9-10 (1980). Nonetheless, "a complaint must contain sufficient factual
matter, accepted as true, to 'state a claim to relief that is plausible on its face.' Twombly,
550 U.S. at 570." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).
The Eighth Amendment forbids prison officials from “unnecessarily and wantonly inflicting pain” on an inmate by acting with “deliberate indifference” toward the
inmate’s serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976). To demonstrate an Eighth Amendment deprivation, a prisoner must show that a prison official
acted with deliberate indifference to his serious medical needs. There is both an objective and a subjective component to a cruel and unusual punishment claim. Scott v.
Ambani, 577 F.3d 642, 648 (6th Cir. 2009). The objective component requires a plaintiff
to demonstrate that the medical need was “serious.” Id. 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.” Harrison v. Ash, 539 F.3d 510, 518 (6th Cir. 2008). To meet the subjective component, a complaint must plead “facts which show that the prison official had a ‘sufficiently
culpable state of mind.’ [Brennan v.] Farmer, 511 U.S. [825], 834 [(1994)]; Comstock [v.
McCrary, 273 F.3d 693], 834 [(6th Cir. 2001).” Prison officials are liable only if they know
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of and disregard “an excessive risk to inmate health or safety; the 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 draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837
(1994). Mere negligence does not constitute deliberate indifference. See, Estelle, 429 U.S.
at 106. Further, a prisoner does not state a claim merely by pleading that he disagrees
with the diagnosis or treatment. Estelle, 429 U.S. at 107-08; Westlake v. Lucas, 537 F.2d
857, 860 n. 5 (6th Cir. 1976).
Nonetheless, prison officials may not entirely insulate themselves from liability
under § 1983 simply by providing some measure of treatment. Deliberate indifference
may be established in cases where it can be shown that a defendant rendered “grossly
inadequate care” or made a “decision to take an easier but less efficacious course of
treatment.” Terrance v. Northville Reg'l Psychiatric Hosp., 286 F.3d 834, 843 (6th Cir.2002)
(quoting McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999)); see also Chance v. Armstrong, 143 F.3d 698, 704 (2d Cir. 1998). A complaint states a claim when it alleges that
“prison authorities have denied reasonable requests for medical treatment in the face of
an obvious need for such attention where the inmate is thereby exposed to undue
suffering or the threat of tangible residual injury.” Westlake, 537 F.2d at 860; Scott v.
Ambani, 577 F.3d at 648.
Here the complaint is sufficient on initial screening to state a claim against
defendants Jessica McQuate and Dino Cardaras; however, the complaint fails to state a
claim upon which relief may be granted against defendants Charles Jenkins, Beth
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Higginbothum, Alice Ault, Corby Free, Dr. Gary Artrip, Dr. Larry Houts, Terry Harris,
and Mona Parks. There only role in Lawson's treatment was to respond to his grievances. Prison officials whose only roles “involve their denial of administrative grievances and their failure to remedy the alleged retaliatory behavior” cannot be liable
under §1983. Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999); see also Bellamy v.
Bradley, 729 F.2d 416, 421 (6th Cir. 1984); Hays v. Jefferson County, 668 F.2d 869, 874 (6th
Cir. 1982). None of these defendants is alleged to have taken any action to intentionally
subject Lawson to cruel and unusual punishment by acting with deliberate indifference
to his serious medical needs or to facilitate Cardaras's and McQuate's alleged actionable
conduct.
Accordingly, it is hereby RECOMMENDED that the complaint be DISMISSED
as to defendants Charles Jenkins, Beth Higginbothum, Alice Ault, Corby Free, Dr. Gary
Artrip, Dr. Larry Houts, Terry Harris, and Mona Parks for failure to state a claim
against them under 42 U.S.C. §1983. The lawsuit shall continue as to plaintiff’s claims
against defendants Jessica McQuate and Dino Cardaras.
IT IS FURTHER ORDERED that the United States Marshal serve upon each
defendant named in part III, B and C of the form civil rights complaint a summons, a
copy of the complaint, and a copy of this Order. Defendants Charles Jenkins, Beth
Higginbothum, Alice Ault, Corby Free, Dr. Gary Artrip, Dr. Larry Houts, Terry Harris,
and Mona Parks are not required to answer the complaint unless later ordered to do so
by the Court.
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Defendants Jessica McQuate and Dino Cardaras are ORDERED to respond to
the complaint within 45 days of being served with summons and complaint.
The Clerk of Court is DIRECTED to mail a copy of this Order to the Attorney
General of Ohio, Corrections Litigation Section, 150 East Gay St., 16th Floor, Columbus,
OH 43215.
If any party objects to this Report and Recommendation, that party may, within
fourteen (14) days, file and serve on all parties a motion for reconsideration by the
Court, specifically designating this Report and Recommendation, and the part thereof
in question, as well as the basis for objection thereto. See 28 U.S.C. §636(b)(1)(B); Fed. R.
Civ. P. 72(b).
The parties are specifically advised that 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. Thomas v.
Arn, 474 U.S. 140, 150-152 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
See also Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989).

s/Mark R. Abel
United States Magistrate Judge

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