Jennings v. Mohr et al

Filing 3

REPORT AND RECOMMENDATION: Magistrate Judge GRANTS 1 MOTION for Leave to Proceed in forma pauperis, RECOMMENDS 2 Complaint be DISMISSED. Objections to R&R due by 5/22/2017. Signed by Magistrate Judge Kimberly A. Jolson on 5/8/2017. (ew)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
GREGORY ALLEN JENNINGS,
Plaintiff,
v.

Civil Action 2:17-cv-248
Judge George C. Smith
Magistrate Judge Jolson

GARY MOHR, et al.,
Defendants.
REPORT AND RECOMMENDATION
Plaintiff Gregory Allen Jennings, a pro se prisoner, filed a Motion for Leave to Proceed
in forma pauperis on March 24, 2017. (Doc. 1). Pursuant to 28 U.S.C. § 1915(a), that Motion is
GRANTED. All judicial officers who render services in this action shall do so as if the costs
had been prepaid. However, as explained below, the Court concludes this action cannot proceed.
Because Plaintiff is proceeding in forma pauperis, this Court must conduct an initial
screening pursuant to 28 U.S.C. § 1915. The Court must dismiss the Complaint if it determines
that it is frivolous or 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
Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991) (“[T]he allegations of a complaint drafted by
a pro se litigant are held to less stringent standards than formal pleadings drafted by lawyers....”);
Thompson v. Kentucky, 812 F.2d 1408, No. 86-5765, 1987 WL 36634, at *1 (6th Cir. 1987)
(“Although pro se complaints are to be construed liberally, they still must set forth a cognizable
federal claim.” (citation omitted)). In order to survive dismissal for failure to state a claim, “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 554, 570 (2007)).

Applying those standards here, the Undersigned

RECOMMENDS DISMISSAL. (Doc. 1-2).
I.

BACKGROUND
In the most general terms, Plaintiff brings an Eighth Amendment claim for deliberate

indifference to his medical needs. The details of his claim, however, are difficult to decipher. In
terms of physical complaints, Plaintiff states that he has “very sharp pains” “at the top of [his]
cervical,” where he has “screws” (Doc. 1-1 at 5, PAGEID #: 10) and back problems (id. at 9,
PAGEID #: 14). Plaintiff states that he had surgery at Ohio State University, where they “took a
lot out” and “almost lost [him].” (Id. at 5, PAGEID #: 10).

Plaintiff also complains of

“constant[ly] getting real hard headaches” that cause “the entire portion of [his] left side” to go
“numb.” (Id. at 11, PAGEID #: 16).
Plaintiff claims he fell getting out of the bathtub, and Defendant Nurse Kelly Haggard
and others picked him up despite being “well aware” that “his neck was broken.” (Id. at 7,
PAGEID #: 12; see also id. at 9, PAGEID #: 14 (alleging generally that “medical officials put
[him] in the wheelchair and put [him] in harm’s way, considering [his] neck was broken
already”)). Plaintiff also complains that, at some later point in time, Defendants took the
wheelchair away from him, which caused him to fall. (Id. at 11, PAGEID #: 16). Similarly,
Plaintiff contends that two nurses improperly “took a device from [him]” before he left North
Central Correctional Complex. (Id. at 7, PAGEID #: 12).
Plaintiff complains about the understaffing of medical personnel (id. at 6, PAGEID #: 11;
id. at 9, PAGEID #: 14) and states that his requests for medication have been ignored (id. at 5,
PAGEID #: 10). Plaintiff further claims, upon his transfer to a new institution, the medical

2

officials were never informed, as they should have been, about an “upcoming procedure” (id. at
10, PAGEID #: 15) and, prior to April 20, 2014, an “H.C.A. said they didn’t have to honor
taking [him] to Toledo University.” (id. at 7, PAGEID #: 12).
Plaintiff also claims that Defendants have improperly limited his movement within the
institution. In particular, Plaintiff asserts he was confined to his cell because he was in a
wheelchair (id. at 8, PAGEID #: 13) and when Nurse Haggard was working, which “was
everyday” (id. at 10, PAGEID #: 15). He also asserts that “the H.C.A. would not allow [him] to
go farther than the front part of the infirmary.” (Id.).
Plaintiff’s primary complaint appears to be based on his interactions with Dr. DeLaCruz
in the summer of 2014. (Id. at 6, PAGEID #: 11). According to Plaintiff, he revealed to Dr.
DeLaCruz that he “was intending [to] bring charges against the Med. Officials in Allen for the
wanton infliction of pain they caused [him],” to which she responded, “if you have a problem
with any of my colleagues you and I will become enemies.” (Id.). Plaintiff claims that Dr.
DeLaCruz conducted only “basic checks,” but concluded that his medications were unnecessary.
(Id. at 9–10, PAGEID #: 14–15). Plaintiff further accuses Dr. DeLaCruz of “removing all
important paperwork” to hide her actions. (Id. at 10, PAGEID #: 15).
Plaintiff asserts that “medical officials” have “done everything to make [him] give up the
fight concerning [his] health” and to convince him “there was nothing wrong….” (Id. at 6,
PAGEID #: 11). According to Plaintiff, tests showed “at the very beginning that [he] had a
serious condition that required a specialist to deal [his] circumstances,” but Defendants “tried to
prove one thing. There was nothing wrong….” (Id. at 11, PAGEID # 16). He claims that “even
at this point they are trying to get [him] to walk.” (Id.).
Finally, in allegations seemingly unrelated to his health, Plaintiff complains of having to

3

rely on an officer to put his outgoing mail in the box and that “auditors” conducting an “internal
audit” were “laughing at [him].” (Id. at 8, PAGEID #: 13).
II.

DISCUSSION
A.

Statute of Limitations

As an initial matter, it appears that Plaintiff’s claim is untimely. Although the statute of
limitations is normally an affirmative defense that must be raised by defendants in an answer, if
the limitations bar appears on the face of the complaint, the Court may apply it during the initial
screening process. See, e.g., Watson v. Wayne Cty., 90 Fed. App’x 814, 815 (6th Cir. Jan. 26,
2004) (“If a statute of limitations defense clearly appears on the face of a pleading, the district
court can raise the issue sua sponte”). The statute of limitations for claims under 42 U.S.C.
§ 1983 is the two years. See Browning v. Pendleton, 869 F.2d 989, 990 (6th Cir. 1989). Plaintiff
submitted his Complaint to this Court on March 27, 2017, so any claim that arose before March
27, 2015 generally would be considered untimely.

See id.

The allegations in Plaintiff’s

Complaint appear to have occurred in or before 2014. (See Doc. 1-1 at 6, PAGEID #: 11
(referencing 2014); see also id. at 7, PAGEID #: 12 (same)).
Plaintiff even acknowledges that his claim may be barred by the statute of limitations,
stating that he never pursued his claim in Court and “took for grant[ed] the time of its expiration
date.” (Id. at 5, PAGEID #: 10). Plaintiff’s fall while getting out of the bathtub appears to have
occurred sometime in or before 2014 (id. at 7, PAGEID #: 12) (referencing an appointment
scheduled for April 20, 2014, after the fall)), as does the allegedly improper interaction with Dr.
DeLaCruz (id. at 5, PAGEID #: 10) (referencing the summer 2014)).

Moreover, Plaintiff

acknowledges that certain circumstances he complains of, such as understaffing, have improved
since 2014. (See, e.g., id. at 6, PAGEID #: 11 (discussing his transfer from C.R.C. and observing

4

that there is “no comparison been medical then and now”); id. (noting that “P.C.I. is has
definitely tried picking up the pace” by hiring more individuals “to efficiently deal overcrowding
of inmates”); id. at 9, PAGEID #: 14 (stating that it used to be that the institution “didn’t have
enough staff for inmate medical care,” but “there seem[s] to be very quick treatment for an
inmate these days”).
Because Plaintiff’s claim appears to be time barred, the Court RECOMMENDS that the
Complaint be DISMISSED. See, e.g., Smith v. Warren County Sheriff’s Dep’t, No. 1:10-cv-113,
2010 WL 761894, at *2 (S.D. Ohio Mar. 2, 2010) (applying the statute of limitations to a
prisoner screening).
B.

Failure To State A Claim

However, to the extent that Plaintiff’s claim may fall within the fairly limited
circumstances that allow the continuing violation doctrine to apply to a § 1983 claim, see Wilder
v. Collins, No. 2:12-cv-64, 2012 WL 1606035, at *3 (S.D. Ohio May 8, 2012), or may otherwise
be considered timely, it is subject to dismissal for other reasons.
1.

Allegedly Inadequate Medical Treatment

Plaintiff must plead a facially plausible claim that Defendants acted with deliberate
indifference to his medical needs. Such a claim has an objective and a subjective component.
Blackmore v. Kalamazoo Cty., 390 F.3d 890, 895 (6th Cir. 2004). The objective component
“requires a plaintiff to show that the medical need at issue is sufficiently serious,” and the
subjective component requires “that prison officials have a sufficiently culpable state of mind in
denying medical care.” Alspaugh v. McConnell, 643 F.3d 162, 169 (6th Cir. 2011) (citation
omitted) (quotations omitted).

Moreover, the Sixth Circuit “disintiguish[es] between cases

where the complaint alleges a complete denial of medical care and those cases where the claim is

5

that a prisoner received inadequate medical treatment.” Id. In the latter, “federal courts are
generally reluctant to second guess medical judgments” unless the care the plaintiff received was
“so woefully inadequate as to amount to no treatment at all.” Id.
In addition, Eighth Amendment claims may be resolved on the pleadings where the
complaint makes clear that, even accepting the allegations, the plaintiff can prove no set of facts
in support of the claim. See LaFlame v. Montgomery Cty. Sheriff’s Dep’t, 3 F. App’x 346, 347
(6th Cir. 2001) (holding that “difference of opinion” over “treatment does not state an Eighth
Amendment claim”). This is particularly true where the complaint reflects that the plaintiff was
indeed receiving some kind of treatment for his ailment. Dotson v. Wilkinson, 477 F. Supp. 2d
838, 849 (N.D. Ohio 2007) (dismissing Eighth Amendment claim based on receipt of treatment).
In the Complaint, Plaintiff makes clear that he has received medical treatment, which has
included multiple surgeries (Doc. 1-1 at 5, PAGEID #: 10 (referencing the “last operation”)),
seeing specialists (id. at 6, PAGEID #: 11 (stating that “they were actually bringing some Doctor
from somewhere in Columbus to claim he was a top surgeon or something”)), and undergoing
tests (id. at 9–10, PAGEID #: 14–15 (referencing an MRI); id. at 11, PAGEID #: 16 (explaining
that “time after time” his tests demonstrated a serious condition). (See also id. at 12, PAGEID #:
17 (referencing “therapy”)).
Thus, Plaintiff appears to allege that Defendants violated his rights by refusing to provide
him a certain type of treatment. For example, Plaintiff seems to suggest that the medical officials
should have sent him to a specialist sooner. (See id. at 11, PAGEID #: 16) (stating that tests
showed “at the very beginning that [he] had a serious condition that required a specialist to deal
[his] circumstances,” but Defendants “tried to prove one thing. There was nothing wrong…”).
However, “the contention that [Plaintiff] was denied treatment by a specialist is . . . insufficient

6

to establish a constitutional violation.” Jenkins v. Mohr, No. 2:14-cv-248, 2014 WL 4748619, at
*7 (S.D. Ohio Sept. 23, 2014) (“Although Plaintiff disagrees with the timing of his referral to a
specialist, that disagreement is insufficient to give rise to an Eighth Amendment claim for
deliberate indifference.”). Consequently, the Court RECOMMENDS that the Complaint be
DISMISSED on this basis.
2.

Personal Involvement

Further, in order to plead a cause of action under 42 U.S.C. § 1983, a plaintiff must plead
two elements: “(1) a deprivation of a right secured by the Constitution or law of the United
States (2) caused by a person acting under color of state law.” Hunt v. Sycamore Cmty. Sch.
Dist. Bd. of Educ., 542 F.3d 529, 534 (6th Cir. 2008) (citation omitted). To plead the second
element sufficiently, a plaintiff must allege that each defendant had “personal involvement” in
the deprivation of his rights. Grinter v. Knight, 532 F.3d 567, 575 (6th Cir. 2008) (citation
omitted).
With the exception of Nurse Haggard and Dr. DeLaCruz, Plaintiff’s Complaint fails to
provide sufficient factual content or context from which the Court could infer that any of the
Defendants were involved personally in any violation of his constitutional rights. On this basis,
it is RECOMMENDED that Plaintiff’s Complaint against the Defendants other than Nurse
Haggard and Dr. DeLaCruz be DISMISSED.
To the extent that Plaintiff’s allegations concern Nurse Haggard, they allege that she
picked him up from a fall with others and relayed information from a doctor that “nothing was
wrong” with Plaintiff. (Doc. 1-1 at 7, PAGEID #: 12). Although it is unclear why, Plaintiff
alleges that he was not permitted to leave his cell while Nurse Haggard was working. (Id.).

7

Even if it was somehow improper for Nurse Haggard to move Plaintiff after his fall,
“[m]edical malpractice does not become a constitutional violation merely because the victim is a
prisoner.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). Rather, “[i]n order to state a cognizable
claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate
indifference to [his] serious medical needs.” Id. Further, conveying a doctor’s opinion that
“nothing was wrong” with Plaintiff and that Plaintiff was confined to his cell while Nurse
Haggard was working are allegations insufficient to support Plaintiff’s Eighth Amendment
claim. See Blackmore, 390 F.3d at 895.
As to Plaintiff’s allegations against Dr. DeLaCruz, he refers to her as unprofessional (see
Doc. 1-1 at 6, PAGEID #: 11) and says he felt a “strange aura” when meeting her (id. at 9,
PAGEID #: 14). He further states that “her assessment of [him] did not convince her enough that
[he] should have any of the medications” (id. at 10, PAGEID #: 15), although he does not allege
that the medications were taken away (see id.).
“[A] prisoner’s difference of opinion regarding treatment does not rise to the level of an
Eighth Amendment violation.” DeFreeze v. Zuberi, 39 F. App’x 137, 139 (6th Cir. 2002); see,
e.g., Alspaugh, 643 F.3d at 169 (no deliberate indifference claim where the plaintiff “would have
desired more aggressive treatment” but “was at no point denied treatment”); Owens v.
Hutchinson, 79 F. App’x 159, 161 (6th Cir. 2003) (“A patient’s disagreement with his physicians
over the proper medical treatment alleges no more than a medical malpractice claim, which is a
tort actionable in state court, but is not cognizable as a federal constitutional claim.”); 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 . . . does not support an
Eighth Amendment claim”); LaFlame, 3 F. App’x at 347; Dotson, 477 F. Supp. 2d at 849. In

8

sum, nothing in Plaintiff’s Complaint demonstrates that his treatment by Dr. DeLaCruz was “so
woefully inadequate as to amount to no treatment at all.” See Alspaugh, 643 F.3d at 169.
Based upon his pleadings, Plaintiff is receiving medical care, and those monitoring his
medical care have had a difference of opinion on the type of care he should receive or have not,
in Plaintiff’s opinion, treated him professionally.

For the reasons set forth above, these

allegations are insufficient to state a plausible constitutional claim.

It is therefore

RECOMMENDED that Plaintiff’s Complaint be DISMISSED.
III.

CONCLUSION
For the reasons stated, it is RECOMMENDED that Plaintiff’s Complaint be

DISMISSED.
Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) days of the date of this Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection is made, together with
supporting authority for the objection(s).

A Judge of this Court shall make a de novo

determination of those portions of the Report or specified proposed findings or recommendations
to which objection is made. Upon proper objections, a Judge of this Court may accept, reject, or
modify, in whole or in part, the findings or recommendations made herein, may receive further
evidence or may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C.
§ 636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the District Judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of

9

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
IT IS SO ORDERED.

Date: May 8, 2017

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

10