Pierce v. Mohr

Filing 18

ORDER adopting Report and Recommendations re 13 Report and Recommendations.. Signed by Judge James L Graham on 11/17/2014. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Ricky H. Pierce,
Plaintiff,
v.

Case No. 2:14-cv-889

Gary Mohr, Director, Ohio
Department of Rehabilitation
and Correction, et al.,
Defendants.
ORDER
Plaintiff Ricky H. Pierce, a state prisoner, filed this civil
rights action pursuant to 42 U.S.C. §1983, against Gary Mohr,
Director of the Ohio Department of Rehabilitation and Correction
(“ODRC”); Doctor Eddy, ODRC Chief Medical Officer; Mona Parks, ODRC
Assistant Chief Medical Inspector; Beth Higginbotham, Health Care
Administrator at the Chillicothe Correctional Institution (“CCI”);
and Gary Artrip, a nurse practitioner at CCI.

Plaintiff alleged

that the defendants have denied him needed medical care for
treatment

of

hemochromotosis,

Type

II

diabetes

and

triglycerides in violation of the Eighth Amendment.

elevated
Plaintiff

further alleged that after he was transferred to CCI on December
19, 2012, he requested to be enrolled in general medical care for
hemochromotosis, but that he was not enrolled until June 10, 2013.
On September 29, 2014, the magistrate judge issued a report
and recommendation (Doc. 13) following an initial screen of the
complaint pursuant to 28 U.S.C. §1915(e)(2).

The magistrate judge

concluded that plaintiff’s amended complaint failed to state claims
against the defendants or to give them fair notice of the claims

against them, and he recommended that the complaint be dismissed.
This matter is before the court on plaintiff’s motion for
reconsideration with objections (Doc. 17) to the magistrate judge’s
report and recommendation.

If a party objects within the allotted

time to a report and recommendation, the court “shall make a de
novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.”
28 U.S.C. §636(b)(1); see also Fed. R. Civ. P. 72(b). Upon review,
the Court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”

28

U.S.C. §636(b)(1).
As

the

magistrate

judge

correctly

explained,

28

U.S.C.

§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.
(6th Cir. 2008).

Grinter v. Knight, 532 F.3d 567, 572

Courts conducting initial screens under §1915(e)

apply the motion to dismiss standard.

See, e.g., Hill v. Lappin,

630 F.3d 468, 470–71 (6th Cir. 2010) (applying Fed. R. Civ. P.
12(b)(6)

standards

to

review

under

28

U.S.C.

§§1915A

and

1915(e)(2)(B)(ii)).
Courts ruling on a motion to dismiss under Rule 12(b)(6)
construe the complaint in a light most favorable to the plaintiff,
accepting all well-pleaded allegations in the complaint as true,
and determining whether plaintiff undoubtedly can prove no set of
facts in support of those allegations that would entitle him to
relief.

Erickson v. Pardus, 551 U.S. 89, 94 (2007); Bishop v.

Lucent Techs., Inc., 520 F.3d 516, 519 (6th Cir. 2008). To survive

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a motion to dismiss, the “complaint must contain either direct or
inferential allegations with respect to all material elements
necessary to sustain a recovery under some viable legal theory.”
Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005).
complaint

need

not

contain

detailed

factual

While the

allegations,

the

“[f]actual allegations must be enough to raise the claimed right to
relief above the speculative level” and “state a claim that to
relief that is plausible on its face.”

Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555, 570 (2007).
In regard to Mohr and Eddy, the magistrate judge noted that
the amended complaint alleged no actions taken by these defendants;
rather, plaintiff alleged that they were liable because they were
in the “chain of command.”

Doc. 13, p. 2.

In his objections,

plaintiff summarily argues that these defendants are decision
makers. However, as the magistrate judge observed, Doc. 13, pp. 45, there is no respondeat superior liability under §1983.

Polk

Couty v. Dodson, 454 U.S. 313, 325 (1981); Grinter, 532 F.3d at 575
(plaintiff must allege “personal involvement” because there is no
respondeat superior liability under § 1983).

Likewise, §1983

liability cannot be based on mere knowledge or failure to act. See
Grinter, 532 F.3d at 576 (failure to act by prison officials does
not subject supervisors to liability). To hold a supervisor liable
under § 1983, plaintiff “must show that the official at least
implicitly authorized, approved, or knowingly acquiesced in the
unconstitutional conduct[.]”

Everson v. Leis, 556 F.3d 484, 495

(6th Cir. 2009); see also Phillips v. Roane County, Tenn., 534 F.3d
531, 543 (6th Cir. 2008)(supervising official is not liable unless
the

supervisor

either

encouraged

3

the

specific

incident

of

misconduct, or in some other way directly participated in it, or
implicitly authorized, approved, or knowingly acquiesced in the
unconstitutional conduct of other officers).

Plaintiff does not

allege facts indicating that either of these defendants personally
took any action in regard to his medical treatment, or authorized,
approved, or knowingly acquiesced in unconstitutional conduct by
other prison officials.

The court agrees with the conclusion of

the magistrate judge that because the amended complaint fails to
allege that Mohr or Eddy took any action to deprive plaintiff of
medical care in violation of the Eighth Amendment or that they
approved or condoned an Eighth Amendment violation by others, the
amended complaint fails to state a claim for relief against these
defendants.
The amended complaint alleges that Parks rejected plaintiff’s
appeals

from

the

rejection

of

plaintiff’s

grievances.

The

magistrate judge correctly noted that where a prison official’s
only role involves the denial of administrative grievances and the
failure to remedy alleged retaliatory behavior, that official
cannot be liable under §1983.

See Doc. 13, p. 5 (citing Shehee v.

Luttrell, 199 F.3d 295, 300 (6th Cir. 1999); see also Grinter, 532
F.3d at 576 (the mere fact that a defendant denied an inmate’s
grievance is not sufficient to establish supervisory liability).
The amended complaint fails to allege a claim against Parks.
The amended complaint alleges in general that Higginbotham and
Artrip were responsible for plaintiff’s health care, see Doc. 10,
¶ 3.

However, Higginbotham is not alleged to be a treator.

Rather, plaintiff alleges that after he complained a second time
about his treatment, Higginbotham sent a request to the collegial

4

review

board

for

a

hematologist

examination of plaintiff.

to

perform

Doc. 10, ¶¶ 4-5.

a

consultative

Plaintiff further

contends that Higginbotham told an institutional inspector that
plaintiff’s chart indicated that he should not receive treatment
for hemochromotosis until his ferritin levels exceeded 800.
10, ¶ 8.

Doc.

Plaintiff alleges that another unidentified hematologist

wrote a letter at an unstated date recommending that plaintiff’s
ferritin levels be kept below 500, and that lab results on four
occasions showed ferritin levels over 500.

Doc. 10, ¶¶

8-9, 14).

Plaintiff also alleges that Artrip did not follow up on allegedly
abnormal

lab

results

on

April

1,

2013,

and

that

he

removed

plaintiff from glucose level monitoring for his type II diabetes.
Doc. 10, ¶¶ 5, 13.

Decisions by the Chief Inspector attached to

the complaint state that plaintiff’s ferritin levels and hemoglobin
are being monitored, and that the Collegial Review Board ordered an
alternative treatment plan for plaintiff’s hemochromotosis.

See

Doc. 10-1, PageID 83, 88, 92.
To establish an Eighth Amendment violation based on the
failure to provide medical care, a prisoner must show that he has
a serious medical condition and that the defendants displayed a
deliberate indifference to his health. Farmer v. Brennan, 511 U.S.
825, 839 (1994); Wilson v. Seiter, 501 U.S. 294, 298 (1991)(inmate
must prove both an objective and subjective component: (1) a
sufficiently grave deprivation, such as serious medical needs; and
(2) a sufficiently culpable state of mind (wantonness)); Estelle v.
Gamble, 429 U.S. 97 (1976)).

To be liable under the Eighth

Amendment, officials must know of and disregard an excessive risk
to inmate health or safety, must be aware of facts from which they

5

could conclude that a substantial risk exists and must actually
draw that conclusion.

Farmer, 511 U.S. at 844.

A complaint that

a prison doctor or official has been negligent with respect to
medical diagnosis or treatment does not state a valid claim under
the Eighth Amendment. Estelle, 429 U.S. at 106; Brooks v. Celeste,
39 F.3d 125, 127

(6th Cir. 1994).

Further, a prisoner does not

state a claim merely by pleading that he disagrees with the
diagnosis of prison medical personnel or the treatment provided by
the institution.

Estelle, 429 U.S. at 107-08; Westlake v. Lucas,

537 F.2d 857, 860 n. 5 (6th Cir. 1976).
The magistrate judge noted that the amended complaint did not
allege that Higginbotham interfered in plaintiff’s treatment to
deprive him of needed medical care for a serious medical need. The
magistrate judge concluded that the amended complaint therefore
failed to state a claim for relief against her.

Doc. 13, p. 5.

The magistrate judge further observed that the amended complaint
did not allege that Artrip had reason to believe that plaintiff
would be exposed to undue suffering or serious injury if the
treatment plaintiff requested was not initiated, nor did it allege
any injury to plaintiff.

The magistrate judge concluded that the

amended complaint failed to state a claim against Artrip. Doc. 13,
p. 7.
In his objections, plaintiff expresses his disagreement with
the treatment plan followed by the institution.
magistrate

judge

correctly

stated

that

choosing

However, the
one

doctor-

supported treatment regimen over another doctor-supported treatment
regimen does not amount to deliberate indifference. Doc. 17, p. 34.

As the Sixth Circuit stated in Mitchell v. Hininger, 553

6

F.App’x 602 (6th Cir. 2014), “a desire for additional or different
treatment does not suffice by itself to support an Eight Amendment
claim.”

Id. at 605.

provide

more

or

A claim that the medical staff failed to

better

treatment,

as

opposed

to

showing

indifference to plaintiff’s medical condition, amounts to a plea to
“‘second guess medical judgments’ as opposed to enforce the crueland-unusual-punishments

ban

in

the

Eighth

(quoting Westlake, 537 F.2d at 860 n. 5).

Amendment.”

Id.,

See also Rhinehart v.

Scutt, 509 F.App’x 510, 513 (6th Cir. 2013)(neither negligence
alone, nor a disagreement over the wisdom or correctness of a
medical judgment is sufficient to allege a deliberate indifference
claim); Kirkham v. Wilkinson, 101 F.App’x 628, 630 (6th Cir.
2004)(“[A] difference in opinion between a prisoner and the medical
staff about treatment does not state a cause of action....

This

court is reluctant to second-guess medical judgments where a
prisoner has received some medical attention and the dispute
concerns the adequacy of that treatment.”); Chapman v. Parke, 946
F.2d

894

(table),

1991

WL

203080

at

*2

(6th

Cir.

Oct.

4,

1991)(difference of opinion regarding treatment is insufficient to
state an Eighth Amendment claim).
his

objections

that

Dr.

Although plaintiff alleges in

Friedman,

an

outside

hematologist,

recommended that plaintiff’s ferritin levels not be permitted to
get above 500, this is not sufficient to state a claim under the
Eighth Amendment.
judgment

to

modify

“[A] prison doctor who relies on his medical
or

disagree

with

an

outside

specialist’s

recommendation of how to treat an inmate is not said to act with
deliberate

indifference.”

Williams

v.

Smith,

No.

02

4558(DLC), 2009 WL 2431948 at *9 (S.D.N.Y. Aug. 10, 2009).

7

Civ.

Having reviewed the report and recommendation and plaintiff’s
objections in accordance with 28 U.S.C. § 636(b)(1) and Rule 72(b),
the court finds that plaintiff’s objections are without merit. The
court overrules plaintiff’s objections (Doc. 17), and adopts the
magistrate judge’s report and recommendation (Doc. 13).

This

action is hereby dismissed pursuant to 28 U.S.C. §1915(e)(2)(B)(ii)
for failure to state a claim for which relief may be granted.
clerk shall enter judgement dismissing this case.

The

The clerk 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, Ohio 43215.

Date: November 17, 2014

s/James L. Graham
James L. Graham
United States District Judge

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