Finley v. Murphy et al

Filing 21

ORDER ADOPTING the REPORT AND RECOMMENDATION 17 and GRANTING 13 Motion to Dismiss for Failure to State a Claim filed by Lawson, Tim Cowgill, Young, Joseph Murphy. This action is hereby dismissed pursuant to 28 U.S.C.§1915(e)(2)(B)(ii) for failure to state a claim for which reliefmay be granted. The court also certifies pursuant to 28 U.S.C. §1915(a)(3) that, for the foregoing reasons, an appeal of this courts order adopting the report and recommendation would not be taken in good faith, and plaintiff is denied leave to appeal in forma pauperis. The clerk shall enter judgement dismissing this case. Signed by Judge James L. Graham on 03/05/2020. (mdr)(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
Ray L. Finley,
Plaintiff,
v.

Case No. 2:19-cv-1449

Joseph Murphy,
et al.,
Defendants.
ORDER
Plaintiff Ray L. Finley, an inmate within the custody of the
Ohio Department of Rehabilitation and Correction (“ODRC”), filed
the instant action pursuant to 42 U.S.C. §1983, alleging that ODRC
employees Joseph Murphy, Nurse Young, Nurse Tim Cowgill, and
Correctional Officer Lawson were deliberately indifferent to his
serious medication needs in violation of the Eight Amendment.
Plaintiff alleged that on July 5, 2018, he was given a fast-acting
insulin injection at approximately 5:15 p.m.

He stated that

inmates are typically then permitted to cross the prison yard to
the cafeteria, but that on the date in question, the yard was
closed due to inclement weather.
half-hour,

he

started

to

Plaintiff alleged that after a

experience

shakiness,

irritability, chills, and lightheadedness.

nervousness,

He claims that when he

asked about getting food, defendant Young responded in an “uncaring
and rude” manner.

A blood glucose check was administered and

showed a low blood sugar level, after which graham crackers were
provided.

Plaintiff further alleged that at approximately 6:30

p.m., a staff member brought meals and snacks for the diabetic
inmates.
On June 27, 2019, defendants moved to dismiss the complaint

pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim
for

which

relief

may

be

granted.

On

January

7,

2020,

the

magistrate judge issued a report and recommendation recommending
that the motion to dismiss be granted.
This matter is before the court on plaintiff’s objection (Doc.
20) to the magistrate judge’s report and recommendation.
party

objects

within

the

allotted

time

to

a

If 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).
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
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

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relief that is plausible on its face.”

Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555, 570 (2007).
The magistrate judge correctly concluded that plaintiff’s
official capacity claims for money damages against the defendants
as employees of the State of Ohio are barred by the Eleventh
Amendment.

See Pennhurst St. Sch. & Hosp. v. Halderman, 465 U.S.

89, 100 (1984).

The magistrate judge also properly found that

plaintiff failed to state a claim for prospective injunctive relief
against the defendants in their official capacities because he
failed

to

allege

that

a

policy

or

custom

of

the

State

responsible for a violation of his constitutional rights.
he

has

alleged

that

his

rights

were

violated

due

was

Rather,
to

a

misapplication of a policy, and he has also alleged that the
institution has now implemented a new policy.
The magistrate judge did not err in finding that no claim had
been stated against Joseph Murphy as Health Care Administrator of
the Belmont Correctional Institution. To establish liability under
§1983, a plaintiff must plead and prove that a defendant is
personally responsible for the unconstitutional actions which
injured him.

Monell v. New York City Dept. of Soc. Servs., 436

U.S. 658, 694 (1978); Grinter v. Knight, 532 F.3d 567, 575 (6th
Cir. 2008).

To assert a constitutional claim against individual

government officials, “a plaintiff must plead that each GovernmentOfficial defendant, through the official’s own individual actions,
has violated the Constitution,” and cannot rely on a theory of
respondeat superior or vicarious liability. Ashcroft v. Iqbal, 556
U.S. 662, 676 (2009).

To hold a supervisor liable under § 1983,

plaintiff

that

“must

show

the

3

official

at

least

implicitly

authorized,

approved,

or

unconstitutional conduct[.]”
(6th Cir. 2009).
case.

knowingly

acquiesced

in

the

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

No such factual allegations were made in this

The magistrate judge also properly found that no claim had

been asserted against Correctional Officer Lawson because he was
only named in the caption of the complaint and was not referred to
in any of the factual allegations.
Plaintiff’s objection does not specifically contest the above
findings.

Rather, plaintiff simply reargues that he has stated an

Eight Amendment claim.

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).

The

magistrate

judge

found

that

plaintiff

had

satisfied the serious medical condition requirement by alleging
that he is diabetic.
The deliberate indifference prong is a subjective component
which focuses on the prison official’s state of mind, requiring
something more than mere negligence, but something less than acts
or omissions for the very purpose of causing harm.

Barnett v.

Luttrell, 414 F. App’x 784, 787-788 (6th Cir. 2011).

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.

Blackmore v. Kalamazoo County, 390 F.3d

890, 896 (6th Cir. 2004).
The court agrees with the finding of the magistrate judge that
the allegations in the complaint do not rise to the level of a

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constitutional violation.

This is not a case involving the

complete failure to provide medical care.

Rather, plaintiff

alleges that Nurses Young and Cowgill failed to follow the specific
protocol in place and that they should have provided him with a
meal or snack sooner than they did.

A complaint does not state an

Eighth Amendment claim merely by pleading that the plaintiff
disagrees

with

the

treatment

provided

by

the

institution.

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); 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).
As

a

general

rule,

a

patient’s

disagreement

with

his

physicians over the proper course of treatment alleges at most a
medical-malpractice claim which is not cognizable under §1983.
Estelle v. Gamble, 429 U.S. 97, 107-08 (1976).

“Where a prisoner

has received some medical attention and the dispute is over the
adequacy of the treatment, federal courts are generally reluctant
to second guess medical judgments and to constitutionalize claims
which sound in state tort law.”

Westlake v. Lucas, 537 F.2d 857,

860 n. 5 (6th Cir. 1976); see also Santiago v. Ringle, 734 F.3d
585, 591 (6th Cir. 2013)(when prison doctor provides treatment to
a prisoner carelessly or inefficaciously, he has not displayed a
deliberate indifference to a prisoner’s needs, but merely a degree
of

incompetence

which

does

not

constitutional violation).

5

rise

to

the

level

of

a

The court also agrees with the determination of the magistrate
judge that plaintiff has failed to allege sufficient facts from
which it could reasonably be inferred that these defendants were
“aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists,” Blackmore, 390 F.3d at
896, or that they actually drew that inference and ignored the
risk.

See Buchanan v. Oklahoma, 398 F. App’x 339, 342 (10th Cir.

2010)(affirming dismissal on initial screen of Eighth Amendment
claim of inadequate medical care made by diabetic prisoner who
alleged that he was not allowed to eat immediately after insulin
shots due to a lockdown at facility).
Having reviewed the report and recommendation and plaintiff’s
objection, the court finds that plaintiff’s objection is without
merit.

The court overrules plaintiff’s objection (Doc. 20), and

adopts the magistrate judge’s report and recommendation (Doc. 17).
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.

The court also certifies pursuant to 28 U.S.C.

§1915(a)(3) that, for the foregoing reasons, an appeal of this
court’s order adopting the report and recommendation would not be
taken in good faith, and plaintiff is denied leave to appeal in
forma pauperis.
case.

The clerk shall enter judgement dismissing this

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: March 5, 2020

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

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