Austin et al v. Kasich et al

Filing 4

INITIAL SCREENING/REPORT AND RECOMMENDATIONS re 3 Complaint filed by Benjamin Hendricks, Robert Austin. The Clerk of Court is DIRECTED to open a separate case for plaintiff Robert Austin. It is RECOMMENDED that defendants Mona Parks, Dr. Hale, Dr. Khan, and Anthony Ayres be DISMISSED because the complaint fails to state a claim. These defendants need not respond to the complaint unless later ordered to do so by the court. It is FURTHER RECOMMENDED that at the initial screening stage the c omplaint states a claim for violaltion of the Eight Amendment against Governor John Kasich, Gary Mohr, Ohio Department of Rehabilitation Correction, Andrew Eddy, Medical Director, ODRC and John Gardner, Cheif Medical Officer. These defendants are ORDERED to answer or otherwise respond to the complaint w/in forty-five (45) days of being served with the summons and complaint. Objections due w/in fourteen (14) days. Signed by Magistrate Judge Mark R. Abel on 10/23/2012. (sr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Benjamin Hendricks
and Robert Austin,

:
:

Civil Action 2:12-cv-0729

:

Judge Smith

:

Magistrate Judge Abel

Plaintiff
v.
John Kasich, et al.,
:
Defendants
:
INITIAL SCREENING
REPORT AND RECOMMENDATION
Plaintiffs Benjamin Hendricks and Robert Austin, inmates at the Pickaway
Correctional Institution, bring this prisoner civil rights action under 42 U.S.C. §1983.
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.
1

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
claim upon which relief may be granted; or
(2) seeks monetary relief from a defendant who

§1997e(c) to identify cognizable claims, and to dismiss 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 plaintiffs Hendricks and Austin have improperly joined as
parties plaintiff, that the complaint fails to state a claim upon which relief may be granted against defendants Mona Parks, Dr. Hale, Dr. Khan, and Anthony Ayres, that at the
initial screening stage the complaint states a claim against defendants Governor John
Kasich, Gary Mohr, Andrew Eddy, and John Gardner, and therefore RECOMMENDS
dismissal of the complaint as to the defendants Mona Parks, Dr. Hale, Dr. Khan, and
Anthony Ayres and that suit continue as to defendants Kasich, Mohr, Eddy and Gardner. The Clerk of Court is DIRECTED to open a separate case for plaintiff Robert Austin, filing a copy of the complaint here and this Report and Recommendation in that
new case file.
The complaint names as defendants Governor John Kasich; Gary Mohr, Director,
Ohio Department of Rehabilitation and Correction ("ODRC"); Andrew Eddy, Medical
Director, ODRC; John Gardner, Chief Medical Officer, ODRC; Mona Parks, Assistant

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.
2

Chief Inspector (Medical), ODRC; Dr. Hale, Chief Medical Officer, Pickaway Correctional Institution ("PCI"); Dr. Khan, Long Term Care/Chronic Care physician, PCI;
and Anthony Ayres, Health Care Administrator/Medical Operations Manager, PCI. It
alleges the following facts and claims, summarized separately as to each plaintiff.
Benjamin Hendricks
Defendants have denied Hendricks necessary and/or prescribed medical care for
his left shoulder prothesis, Crohn's disease, diversion colitis, ventral & parastomal
hernias, and pain. Complaint, ¶¶ 31-64. Each of these medical conditions are discussed
briefly below.
Left shoulder prosthesis. In March 2010, the Ohio State University Medical
Center and the Orthopedic and Surgery Clinics at the Corrections Medical Center
determined that Hendricks needed surgery to repair damage to a prosthetic implant in
his left shoulder. Surgery was scheduled for June 2010, then cancelled without explanation. Complaint, ¶¶ 33-37. Two years later Hendricks had a meeting at the Pickaway
Correctional Institution with nurse supervisor Connie Ostrander, Q.I.C. Missy Rousch,
and defendants Ayres, Khan and Hale during which he “was informed that his shoulder was deemed inoperable by Defendants Eddy and Gardner.” Complaint, ¶ 38. Hendricks told them that the explanation was untrue because the earlier specialist consultations found he needed the surgery; and they told him “that the problem would be
‘looked into’ and he would be informed about a decision when one was made which
was subsequently denied.” Complaint, ¶¶ 39-40.
3

Crohn’s disease. In September 2008, Hendricks was prescribed Remicade® for
abdominal pain, diarrhea, malabsorption, fistula formation, and bloody stool. After
several infusions the treatment was stopped but Hendricks experienced numerous
flareups that caused excruciating pain, bleeding, and other problems. He has repeatedly
asked for and been denied treatment. Complaint, ¶¶ 41-46. “After two (2) years of
complaints, Hendricks finally had a ‘meeting’ with” nurse supervisor Connie Ostrander, Q.I.C. Missy Rousch and defendants Ayres, Khan, and Hale, who told him “that he
had a teleconference scheduled to determine a course of treatment.” Complaint, ¶ 47.
Diversion colitis. During recovery from a November 2009 surgery to repair a
parastomal hernia, doctors discovered Hendricks suffered from diversion colitis. An
OSU Medical Center gastroenterologist recommended treatment with a short-chain
fatty-acid enema, which was started but discontinued when he returned to the PCI.
After two years of complaints, the treatment was resumed. However, it had to be discontinued when Hendricks experienced trauma during one of the treatments. By the
time he was capable of resuming the treatment, the enema had expired and needed to
be reordered. It has not yet been resumed. Complaint, ¶¶ 48-53.
Ventral and parastomal hernias. About 6-7 months after the November 2009
hernia repair surgery, the repair failed. Hendricks also developed a ventral hernia. Due
to circumstances beyond his control, Hendricks was unable to keep a February 14, 2011
appointment at the Surgery Clinic. Later defendant Mona Parks, Assistant Chief Inspector (Medical) for ODRC, concluded he should be reevaluated to determine whether
4

the surgery was still needed. Defendant John Gardner, Chief Medical Officer, ODRC,
conducted the reevaluation and informed Hendricks that the surgery would not be
performed until the hernias had become a medical emergency. After several more
complaints, nurse supervisor Connie Ostrander, Q.I.C. Missy Rousch and defendants
Ayres, Khan, and Hale met with Hendricks and told him that a speciality consult
request would again be submitted. It was denied again. Complaint, ¶¶ 54-59.
Pain management. In addition to the painful medical conditions set out above,
Hendricks suffers from painful degenerative disc disease at L-3, L-4, ostearthitis, sciatic
nerve pain, and an old pelvic fracture. Complaint, ¶ 60. A former physician at PCI
referred Hendricks to a pain clinic, but the consultation was denied without explanation. After two years of "excruciating, and sometimes debilitating, pain and numerous
complaints," nurse supervisor Ostrander, Q.I.C. Rousch and defendants Ayres, Khan,
and Hale met with Hendricks and told him that a speciality consult request would
again be submitted. On May 3, 2012, defendant Dr. Hale informed Hendricks that the
consult had been denied "and, as a last ditch effort, prescribed Neurontin/gabamentin
for pain management." Complaint, ¶¶ 62-64.
Plaintiff Robert Austin
Austin has sought treatment for polycythemia vera, wound care, and pain management. The allegations regarding those conditions will be summarized below.
Polycythemia vera. In 1993, Austin was diagnosed with poycythemia vera, an
incurable, life-threatening myeloproliferative disorder. Complaint, ¶¶ 65-67. He has not
5

been provided with the treatment needed to help control the disease. Complaint, ¶ 72.
In February 2011, Austin underwent surgery to have a Mediport implanted. It needs to
be flushed monthly to prevent infection and clotting problems, but has been flushed
only twice. A February 23, 2012 attempt to flush the Mediport was unsuccessful because
one of the two ports was clogged and could not be opened. Complaint, ¶¶ 75-78.
Wound care. Austin developed venous stasis ulcers that are poorly, slowly healing ulcers for which he has been referred by his treating physician at PCI to a wound
clinic at the Corrections Medical Center. One treatment ordered for the wounds is a
boot-like dressing over the lower extremity. Defendant Gardner fitted Ausin with the
dressing once. Complaint, ¶¶ 79-84. “Subsequent attempts at this treatment were futile
because nobody seemed to want to do them or did not know how leaving Austin to
perform his own wound care.” Complaint, ¶ 85. As a result of his performing the
wound care in an unsterile environment, Austin has had numerous infections. Complaint, ¶ 86.
Pain management. Although plaintiff has been referred to pain specialists by his
treators, every request for a pain specialist consult has been denied by defendants with
no reason given. He has been given pain medications that are contraindicated because
of his hepatitis. “Since Defendant Kasich’s cost cutting measures have been implemented by the other Defendants, Austin has been reduced to 100 mg. of Ultram TID (3x day)
compared to his previous prescriptions of 100 mg. of Ultram QID (4 x day), 10 mg. of
Roxonol (morphine sulphate) once a day as needed, 50 mg. of Elavil at night, and 800
6

mg. of Ibuprofen.” Complaint, ¶ 90.
Causes of Action pleaded by both plaintiffs. The first cause of action pleads that
plaintiffs’ Eighth Amendment rights were violated when defendants Governor Kasich
and Gary Mohr “implemented cost cutting measures that have had a direct and detrimental effect on the medical care received by all inmates in the custody and/or care of
Ohio prisons.” Complaint, ¶¶ 95-96. The individual defendants’ actions violated plaintiffs’ rights under the Eighth Amendment. to the Constitution of the United States.
Complaint, ¶¶ 97-99. The second cause of action seeks a declaratory judgment that
defendants not deny them treatment or medical care prescribed by specialists. Complaint, ¶¶ 100-106.
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
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).

7

Prisoners’ right to medical treatment. 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 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).
8

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.
Analysis. The claims of plaintiffs Benjamin Hendricks and Robert Austin will be
discussed separately below.
Benjamin Hendricks
Right shoulder prosthesis. In March 2010, specialists determined that Hendricks
needed surgery to repair damage to a prosthetic implant in his left shoulder. The
surgery was scheduled, but canceled. In or around June 2012, defendants Ayres, Khan
and Hale informed Hendricks that defendants Eddy and Gardner deemed his shoulder
inoperable. Complaint ¶¶ 33-40.
At the initial screening stage, the complaint states a claim against defendants
ODRC Medical Director Andrew Eddy and ODRC Chief Medical Officer John Gardner,
9

because they denied Hendricks surgery that specialists determined he needed. It does
not state a claim against defendants PCI Health Care Administrator Anthony Ayres,
PCI Long Term Care/Chronic Care Physician Dr. Khan, or PCI Chief Medical Officer
Dr. Hale, who merely informed Hendricks of the decision made by Eddy and Gardner.
Crohn’s disease. The complaint alleges that Hendricks repeatedly asked for but
was denied treatment for Crohn’s disease. Complaint ¶¶ 41-46. It does not allege the
dates he sought treatment, the dates treatment was denied, or the identity of the person(s) denying him treatment. Consequently, the complaint does not give any individual defendant fair notice of the claim pleaded against him or her.
The complaint further alleges that Hendricks met with defendants Ayres, Khan
and Hale, who told him he had a teleconference scheduled to determine the course of
treatment for his Crohn’s disease. Complaint ¶ 47. That allegation does not state a claim
that these defendants denied plaintiff necessary treatment for a serious medical condition. Rather, they informed him he had an upcoming teleconference to determine how
his Crohn’s disease should be treated.
Diversion colitis. The complaint alleges that a specialist recommended treatment
with a short-chain fatty-acid enema that Hendricks has rarely received. Complaint ¶¶
48-53. However, the complaint does not alleges the dates plaintiff sought and was refused the enemas or the name of the person(s) who denied him the treatment prescribed
by the specialist. Consequently, the complaint fails to give fair notice of the claim to any
named defendant.
10

Ventral and parastomal hernias. The complaint alleges that Hendricks underwent a surgical hernia repair that failed. He was scheduled for a surgery consult but
missed the appointment because of circumstances beyond his control. Defendant Mona
Parks, Assistant Chief Inspector later concluded that he should be reevaluated to
determine whether surgery was still needed. Defendant John Gardner conducted the
reevaluation and decided that the surgery would not be performed until Hendricks’
hernias became a medical emergency. Defendants Ayres, Khan and Hale met with
Hendricks and told him a request for a specialist consult would again be made. It was
denied. Complaint ¶¶ 54-59.
At the initial screening stage, the complaint states a claim against defendant
Gardner, but not against defendants Parks, Ayres, Khan, or Hale. Gardner is alleged to
have denied Hendricks surgery specialists determined he needed. Parks only role was
to make a decision on a grievance. 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). The complaint here only alleges that Parks’ role was to
make a decision on a grievance. Finally, the complaint does not allege that defendants
Ayres, Khan or Hale did anything to deny Hendricks treatment for his hernias.
Pain management. Although the complaint alleges that defendants Ayres, Khan
and Hale requested a consult by a pain management specialist, it was denied. Dr. Hale
11

then prescribed Neurontin/gabamentin in an attempt to manage Hendricks’ pain.
Complaint, ¶¶ 60-64. These allegations are insufficient to state a claim against defendants Ayres, Khan or Hale because it points to no conduct by them that denied plaintiff a
consult with a pain specialist or that otherwise denied him treatment for a serious medical need.
Additional allegations. The complaint alleges that defendants Governor Kasich
and Gary Mohr “implemented cost cutting measures that have had a direct and detrimental effect on the medical care received by all inmates in the custody and/or care of
Ohio prisons.” Complaint, ¶¶ 95-96. At the initial screening stage, these allegations are
sufficient to state a claim that these defendants’ conduct denied Hendricks treatment
prescribe by specialists for serious medical needs.
Robert Austin
Polycythemia vera, wound care, and pain management. The complaint fails to
allege dates any individual defendant denied Austin treatment for these conditions.
Consequently, it fails to give any individual defendant fair notice of a claim that he or
she denied Austin needed treatment for a serious medical need. The complaint does
allege that defendant Gardner fitted Austin with a dressing for his venous stasis ulcers
once, but it does not allege that he refused to treat the ulcers at any time nor, if he had,
the date of that refusal. Complaint, ¶¶ 79-85. The pain management allegations do included the allegation that Governor Kasich’s cost cutting measures caused his prescribed pain medications to be reduced. Complaint, ¶ 90. Consequently, at the initial screen12

ing stage, the complaint does state a claim against defendant Kasich.
Additional allegations. The complaint alleges that defendants Governor Kasich
and Gary Mohr “implemented cost cutting measures that have had a direct and detrimental effect on the medical care received by all inmates in the custody and/or care of
Ohio prisons.” Complaint, ¶¶ 95-96. At the initial screening stage, these allegations are
sufficient to state a claim that these defendants’ conduct denied Austin treatment prescribe by specialists for serious medical needs.
Accordingly, it is hereby RECOMMENDED for the reasons set out above that
defendants Mona Parks, Dr. Hale, Dr. Khan, and Anthony Ayres be DISMISSED
because the complaint fails to state a claim for a violation of the Eighth Amendment
under 42 U.S.C. §1983 against them. These defendants need not respond to the complaint unless later ordered to do so by the Court.
The Magistrate Judge FURTHER RECOMMENDS that at the initial screening
stage the complaint states a claim for violation of the Eighth Amendment against
defendants Governor John Kasich; Gary Mohr, Director, Ohio Department of Rehabilitation and Correction ("ODRC"); Andrew Eddy, Medical Director, ODRC; and John
Gardner, Chief Medical Officer, ODRC. These defendants are ORDERED to answer or
otherwise respond to the complaint within forty-five (45) days of being served with
summons and complaint.
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
13

copy of the complaint, and a copy of this Order. Defendants are not required to answer
the complaint unless later ordered to do so by the Court.
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

14