Ramey v. Mohr et al

Filing 4

REPORT AND RECOMMENDATIONS re 3 Complaint filed by Carl Lee Ramey, Sr. Objections to R&R due by 7/23/2012. It is RECOMMENDED that the action be dismissed. Signed by Magistrate Judge Norah McCann King on 7/6/12. (jcw1)

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

CARL LEE RAMEY, Sr.,
Plaintiff,
vs.

Civil Action 2:12-cv-592
Judge Frost
Magistrate Judge King

GARY MOHR, et al.,
Defendants.
REPORT AND RECOMMENDATION

Plaintiff, an inmate at the London Correctional Institution
[“LoCI”], brings this action under 42 U.S.C. § 1983 claiming a denial of
medical care.

This matter is now before the Court for the initial screen

of the Complaint, Doc. No. 3, required by 28 U.S.C. §§ 1915(e), 1915A.
Named as defendants to the Complaint are the Director of the
Ohio Department of Rehabilitation and Correction [“ODRC”] and various
officials at LoCI, including the warden, the institutional inspector, an
administrative assistant, the director of special services and the
medical director.

Plaintiff alleges that, because of a change in ODRC

policy, certain over the counter medications that had previously been
prescribed for him, including fish oil, Tylenol, medication for gastric
reflux disease and allergies, are no longer provided to him. Plaintiff
also alleges that he has not been referred to a specialist for treatment
of genital warts, cysts and a rash on his face.

Plaintiff asks that the

Court order a full physical on plaintiff’s “stomach, throat, knee and
testicles . . . and all [his] medications that [he] needs.”

Complaint,

p. 7. Plaintiff also seeks compensatory and punitive damages.
The Eighth and Fourteenth Amendments to the United States

Constitution proscribe "deliberate indifference to serious medical needs
of prisoners."

Estelle v. Gamble, 429 U.S. 97, 104 (1976).

The

Constitution does not, however, prohibit medical malpractice within the
prison context.

Id.; Wester v. Jones, 554 F.2d 1285, 1286 (4th Cir.

1977); Hampton v. Holmesburg Prison Officials, 546 F.2d 1077, 1081 (3d
Cir. 1976).

Of course, a dispute over the course of medical treatment

is likewise not actionable under §1983.
Cir. 1977).

Young v. Gray, 560 F.2d 201 (5th

On the other hand, the needless suffering of pain when

relief is readily available gives rise to a cause of action against those
whose deliberate indifference caused the inmate's unnecessary pain.
Westlake v. Lucas, 537 F.2d 857 (6th Cir. 1976).

Moreover, an inmate can

state a colorable claim under §1983 even if it is alleged that the
difference to his medical needs existed for only a short period of time.
Byrd v. Wilson, 701 F.2d 592 (6th Cir. 1983).
Documents attached to the Complaint indicate that plaintiff
has received substantial medical care on an approximate monthly basis at
LoCI for hypertension, diabetes and elevated lipids.
disposition

of

plaintiff’s

grievance,

the

Chief

In a March 2011
Inspector

advised

plaintiff that treatment, including removal, of warts and rashes had not
been authorized in the absence of medical necessity or complications.
Decision of the Chief Inspector on a Grievance Appeal, attached to
Complaint at p. 38.

Over the counter medications, such as Prilosec, are

apparently no longer prescribed for plaintiff but are available for
purchase at the prison commissary.

Although plaintiff complains that he

cannot afford to purchase these medications, the Chief Inspector, in a
June 2011 denial of plaintiff’s grievance appeal, noted that
you spent $238.35 [at the LoCI commissary] but did
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not purchase an[y] gastric reflux medication. I
note that you have purchased coffee; tea; honey;
mayonnaise; 2 pounds of sugar cubes; dill pickles,
peanut butter; ice cream; 45 pkgs Ramen noodles;
Vienna sausages, 30 pkgs chips/crackers; popcorn;
and 73 pkgs of cookies/pastry/candy items.
Decision of the Chief Inspector on a Grievance Appeal, attached to
Complaint at p. 31.

In October 2011, the Chief Inspector noted that

plaintiff refused an assessment of his complaints of warts and rash by
defendant Dr. Woods because she is female.

Decision of the Chief

Inspector on a Grievance Appeal, attached to Complaint at p. 33.
The evidence submitted by plaintiff himself demonstrates that
plaintiff

has

not

been

denied

constitutionally entitled.

the

medical

care

to

which

he

is

The Court therefore concludes that the

Complaint fails to state a claim upon which relief can be granted.

See

28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1).
It is therefore RECOMMENDED that the action be dismissed
pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1) for failure to
state a claim upon which relief can be granted.

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
thereof in question, as well as the basis for objection thereto.
U.S.C. §636(b)(1); F.R. Civ. P. 72(b).

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Response to objections must be

filed within fourteen (14) days after being served with a copy thereof.
F.R. Civ. P. 72(b).
The parties are specifically advised that failure to object to
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the Report and Recommendation will result in a waiver of the right to de
novo review by the District Judge and 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); Smith v. Detroit Federation of Teachers,
Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States v. Walters,
638 F.2d 947 (6th Cir. 1981).

s/Norah McCann King
Norah McCann King
United States Magistrate Judge
DATE: July 6, 2012

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