Spencer v. Mohr et al

Filing 4

REPORT AND RECOMMENDATIONS re 3 Complaint: The Magistrate Judge RECOMMENDS that the Court Dismiss Plaintiff's Complaint in ite entirety for failure to state a claim. Objections to R&R due within fourteen (14) days of the date of this Order. Signed by Magistrate Judge Elizabeth Preston Deavers on 12/18/2012. (er1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

CLAUDE SPENCER,
Plaintiff,
Civil Action 2:12-cv-1050
Judge George C. Smith
Magistrate Judge Elizabeth P. Deavers

v.

GARY MOHR, et al.,
Defendants.

REPORT AND RECOMMENDATION
Plaintiff, Claude Spencer, a state inmate who is proceeding with out the assistance of
counsel, brings this action under 42 U.S.C. § 1983, alleging that Defendants were deliberately
indifferent to his serious medical needs in violation of the Eighth Amendment.1 This matter is
before the Court for the initial screen of Plaintiff’s Complaint under 28 U.S.C. §§ 1915(e)(2) and
1915A to identify cognizable claims and to recommend dismissal of Plaintiff’s 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. 28 U.S.C. §
1915(e)(2); see also McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997). Having
performed the initial screen, for the reasons set forth below, the undersigned RECOMMENDS
that the Court DISMISS this action for failure to state claim upon which relief can be granted
pursuant to 28 U.S.C. § 1915(e)(2).

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Plaintiff names the following as Defendants: Gary Mohr, the Director of the Ohio
Department of Rehabilitation and Corrections; unnamed warden of Hocking Correctional
Institute; Nurse Blosser; Dr. John Nduagaba; and Martin Akusoba.

I.
According to the Complaint, Plaintiff fell out of his bed in January 2006, sustaining
injuries to his head, neck, shoulder, and forearm. Since this incident, he has experienced “black
outs and constant pain.” (Compl. 2, ECF No. 1-2.)
In a June 2010 Informal Complaint Resolution, Plaintiff indicated that as a result of the
2006 incident, he experiences headaches and arthritis pain and needs Ibuprofen to treat these
symptoms. He complained that the nurse practitioner had refused to renew his prescription for
Ibuprofen on the grounds that he could purchase that pain medication from the commissary.
(June 26, 2010 ICR, ECF No. 1-3 at Ex. 25.) Plaintiff raised this complaint again in a April
2011 Informal Complaint Resolution, this time seeking a prescription for Ibuprofen and muscle
relaxants. In denying his request, the prison healthcare assistant noted that per prison policy,
inmates are required to purchase medications such as Ibuprofen at the commissary and that
muscle relaxants would not help the arthritis pain he experienced. (April 15, 2011 ICR, ECF No.
1-3 at Ex. 27.) Plaintiff escalated this Complaint to a grievance, which was affirmed. (ECF Nos.
29 and 31.) The Assistant Chief Inspector (Medical), Nurse Parks, denied his subsequent appeal
on June 7, 2011. (June 7, 2011 Dec. of Chief Insp., ECF No. 1-3 at Ex. 32.) In addition to
reviewing Plaintiff’s grievance history, Nurse Park’s investigation included a review of
Plaintiff’s medical file and recent history of commissary purchases. In denying Plaintiff’s
grievance, Nurse Parks noted as follows:
I note that [you] are being followed in CCC for elevated lipids, hypertension
and hypothyroidism, last being seen on 4-6-11. You had ear surgery 8-3-09 due to
“chronic otitis medical with effusion, conductive hearing loss” to your left ear and
surgeons performed a left tympansostomy tube insertion. The surgeon noted that you
voiced a “history of lifelong Eustachian tube dysfunction on left side.” I find an xray of your left foot dated 7-9-09 that shows a “small chronic heel spur.” On 9-18-09
an x-ray of your right shoulder shows “moderate degenerative changes to the AC
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joint.” I have reviewed your commissary purchases for the past 90 days and find that
you spent $682.90. I find that during that time you purchased one container (100
tabs) of Ibuprofen 200mg. But with the CCC concerns that are noted above I find
that there are numerous items that are not appropriate. I note 61 cans of soft drinks;
16 pkgs of coffee; 13-12oz pkgs of sugar; 5 jars of jelly; 4 pounds of cheese; 8 pints
of ice cream; 102 pkgs of Ramen noodles; 77 pkgs of various summer sausages; 33
pkgs crackers/popcorn; and 99 pkgs of pastry/cookie items. All of these items, if you
are eating them are contraindicated in your diet. The medical staff is treating you per
current ODRC policy and Bureau of Medical Services guidelines. See Nurse Sick
Call for further concerns.
(Id.)
Plaintiff filed the instant action on November 14, 2012. Referencing the informal
complaints and grievances outlined above, he asserts that Defendants were deliberately
indifferent to his medical needs.
II.
Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to
“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992).
In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are
assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from
filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490
U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)2 as part of the
statute, which provides in pertinent part:

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Formerly 28 U.S.C. § 1915(d).
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(2) Notwithstanding any filing fee, or any portion thereof, that may have been
paid, the court shall dismiss the case at any time if the court determines that-*

*

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(B) the action or appeal-(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or . . . .
28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua sponte
dismissal of an action upon the Court’s determination that the action is frivolous or malicious, or
upon determination that the action fails to state a claim upon which relief may be granted. See
Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure
12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)).
To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, a plaintiff must satisfy the basic federal pleading requirements
set forth in Federal Rule of Civil Procedure 8(a). Under Rule 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, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Further, a complaint will not “suffice if it
tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly,
550 U.S. at 557). Instead, to survive a motion to dismiss for failure to state a claim under Rule
12(b)(6) of the Federal Rules of Civil Procedure, “a complaint must contain sufficient factual
matter . . . to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550

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U.S. at 570). Facial 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.” Id. 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). The Court is not required, however, to accept as true mere legal
conclusions unsupported by factual allegations. Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 555). In addition, the Court holds pro se complaints “‘to less stringent standards than
formal pleadings drafted by lawyers.’” Garrett v. Belmont Cnty. Sheriff’s Dep’t, No. 08-3978,
2010 WL 1252923, at *2 (6th Cir. April 1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520
(1972)).
III.
Because Plaintiff has failed to plead a facially plausible medical indifference claim, the
undersigned recommends that the Court dismiss this action pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii) for failure to state a claim.
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
toward [his] serious medical needs.” Jones v. Muskegon Cnty., 625 F.3d 935, 941 (6th Cir.
2010) (internal quotations 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
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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.
Here, even if the Court assumes that Plaintiff’s headaches and arthritis pain are serious
enough to satisfy the objective component, the conduct he alleges, specifically, forcing him to
pay for Ibuprofen and denying him a prescription for muscle relaxants, does not constitute
deliberate indifference to his medical needs.
Plaintiff’s claim concerning his access to Ibuprofen fails because he has not alleged that
he was denied necessary treatment on the basis that he could not afford to purchase the
medication. Although a prison is required to 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
(3rd Cir. 1997) (“If a prisoner is able to pay for medical care, requiring such payment is not
‘deliberate indifference to serious medical needs.’”); Slattery v. Mohr, No. 2:11-CV-202, 2012
WL 2931131, at *8 (S.D. Ohio July 17, 2012) (inmate forced to purchase over-the-counter

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medications from commissary pursuant to ODRC policy did not establish an Eighth Amendment
violation where he failed to demonstrate that he was denied medical care due to his inability to
afford medication); Hudgins v. DeBruyn, 922 F.Supp. 144, 151 (S.D. Ind. 1996) (holding that
policy requiring purchase of over the counter drugs was not unconstitutional); cf. White v. Corr.
Med. Servs. Inc., 94 F. App’x 262, 264 (6th Cir. 2004) (citation omitted) (“It is constitutional to
charge inmates a small fee for health care where indigent inmates are guaranteed service
regardless of ability to pay.”). Although Plaintiff makes no allegations concerning his ability to
purchase Ibuprofen, the grievance materials he attaches to his Complaint reflect that he spent
$682.90 at the commissary over a ninety-day period and that he did, indeed, purchase a bottle of
Ibuprofen.
Plaintiff’s claim concerning the denial of muscle relaxants likewise fails because it
amounts to nothing more than a disagreement between him and prison medical personnel over
the appropriate medication to treat his symptoms. The grievance materials Plaintiff attaches to
his Complaint demonstrate that in denying his request for muscle relaxants, prison officials have
not ignored his allegations of pain. Rather, the prison healthcare assistant conveyed her medical
opinion that the muscle relaxants he sought would not help his arthritis and noted that he could
purchase Motrin or Ibuprofin from the commissary. (April 15, 2011 ICR, ECF No. 1-3 at Ex.
27.) Under these circumstances, the medical personnel’s alleged refusal to prescribe Plaintiff the
muscle relaxants he requested fails to state a claim for medical indifference. See White, 94 F.
App’x at 264 (citations omitted) (doctor’s refusal to prescribe inmate’s preferred medications
“amounted to only negligence or a difference of opinion” rather than “a deliberate indifference to
his medical needs”); Thomas v. Coble, 55 F. App’x 748, 749 (6th Cir. 2003) (holding that inmate
and medical provider’s disagreement “over the preferred medication to treat [inmate’s] pain . . .
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does not support an Eighth Amendment claim” and noting that “[t]he district court properly
declined to second-guess [the doctor’s] medical judgment”); Apanovitch v. Wilkinson, 32 F.
App’x 704, 707 (6th Cir. 2002) (“[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.”).
IV.
For the reasons set forth above, it is RECOMMENDED that the Court DISMISS
Plaintiff’s Complaint in its entirety pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A for
failure to state a claim. Additionally, the Clerk is DIRECTED to send a copy of this order to the
Ohio Attorney General’s Office, 150 E. Gay St., 16th Floor, Columbus, Ohio 43215.
PROCEDURE ON OBJECTIONS
If Plaintiff seeks review by the District Judge of this Report and Recommendation, he
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
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).
Plaintiff is 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
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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 18, 2012

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

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