Opinion
Case No. 1:09-cv-263.
April 23, 2009
ORDER
Plaintiff, an inmate at the London Correctional Institution and former inmate at the Lebanon Correctional Institution (LeCI) brings this action pro se against Ohio Department of Rehabilitation and Correction Director Terry Collins, LeCI Warden Timothy Brunsman, LeCI Assistant Warden Ellen Myers, LeCI Health Care Administrator Amy Weiss, LeCI nurse Gene Weaver, LeCI nurse practitioner Erin Newkirk, and LeCI doctors McWeeney and Huerta. By separate Order issued this date, plaintiff has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This matter is before the Court for a sua sponte review of plaintiff's complaint to determine whether the complaint, or any portion of it, should be dismissed because it 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. See Prison Litigation Reform Act of 1995 § 804, 28 U.S.C. § 1915(e)(2)(B); § 805, 28 U.S.C. § 1915A(b).
A complaint may be dismissed as frivolous when the plaintiff cannot make any claim with a rational or arguable basis in fact or law. Neitzke v. Williams, 490 U.S. 319, 328-29 (1989); see also Lawler v. Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990). An action has no arguable legal basis when the defendant is immune from suit or when plaintiff claims a violation of a legal interest which clearly does not exist. Neitzke, 490 U.S. at 327. An action has no arguable factual basis when the allegations are delusional or rise to the level of the irrational or "wholly incredible." Denton v. Hernandez, 504 U.S. 25, 32 (1992); Lawler, 898 F.2d at 1199.
Congress has also authorized the dismissal of complaints which fail to state a claim upon which relief may be granted or which seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(ii-iii). In order to state a claim for relief under 42 U.S.C. § 1983, plaintiff must allege that the persons engaging in the conduct complained of were acting under color of state law and that this conduct deprived plaintiff of some right secured by the Constitution or laws of the United States. Graham v. National Collegiate Athletic Ass'n, 804 F.2d 953, 957 (6th Cir. 1986) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 517 (1984)). Plaintiff's complaint must "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests," Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007) (citations omitted); Wysong v. Dow Chemical Co., 503 F.3d 441, 446 (6th Cir. 2007), and provide "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007).
Plaintiffs complaint alleges that on May 31, 2008, while an inmate at LeCi, he suffered chest pain, shortness of breath, and profuse sweating. A corrections officer called the prison infirmary and was allegedly told by the nurse that they were "too busy," did not have the time to respond at that moment, and "will come when they can." Another officer, dissatisfied with the response from the infirmary, then activated the emergency response button to call for a medical emergency. The appropriate personnel responded and plaintiff was then taken to the infirmary. At the infirmary, plaintiff was examined by defendant nurse Weaver, who took plaintiff's temperature and blood pressure. Weaver gave plaintiff an aspirin with water and advised plaintiff that his chest pain and difficulty breathing were caused by indigestion and dehydration. Plaintiff remained at the nurses station for twenty minutes before being given an EKG. Defendant Weaver read the EKG results, and based on plaintiff use of drugs prior to entering prison, told plaintiff that illegal drugs had damaged his heart. Weaver then walked the EKG results to Dr. Huerta's office. Dr. Huerta ordered that plaintiff be immediately taken by ambulance to the hospital. Plaintiff alleges that defendant Weaver failed to note in plaintiff's chart that plaintiff had taken aspirin upon arriving at the infirmary and that emergency medical personnel were "angry" about the omission since the doctors at the hospital needed that information if plaintiff were to have surgery. Plaintiff was taken to Middletown Hospital, then flown by air care to the Ohio State University Hospital for bypass surgery. Plaintiff had an arterial stent placement and advised he had 100% blockage of his artery. Two days later, plaintiff underwent a second surgery to repair a second blocked artery.
Plaintiff alleges that on July 8, 2008, after he had returned to LeCI, the second shift nursing staff refused to see him for pressure headaches and a blood pressure check. Plaintiff states he had to wait until the third shift before he was permitted to see the nursing staff and have his blood pressure checked.
Plaintiff also alleges that on August 4, 2008, defendant nurse practitioner Newkirk expressed indifference to the nursing assistant when asked if plaintiff's vital signs should be checked. Plaintiff states the only vital sign checked was his weight. Plaintiff alleges that as a person recovering from heart surgery his vital signs should have been checked.
Plaintiff alleges that defendants Weaver, Huerta, and Newkirk failed to provide adequate medical care and follow-up treatment in violation of plaintiff's Eighth Amendment rights. Plaintiff further alleges that defendants McWeeney, Brunsman, Myers, Weiss, and Collins failed to properly oversee staff and violated his Eighth Amendment rights. Plaintiff seeks compensatory and punitive damages, and a declaratory judgment that his rights were violated.
Plaintiff's complaint against all of the defendants in their official capacities must be dismissed. A suit against defendants in their official capacities is in essence a suit against the entity of which defendants are agents, in this case the State of Ohio. Will v. Michigan Dept. of State Police, 491 U.S. 58, 70-71 (1989); Scheuer v. Rhodes, 416 U.S. 232 (1974). Absent an express waiver, the Eleventh Amendment to the United States Constitution bars suit against a State or one of its agencies or departments in federal court regardless of the nature of the relief sought. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 58 (1996); Pennhurst State School v. Halderman, 465 U.S. 89, 100 (1984); Alabama v. Pugh, 438 U.S. 781, 782 (1978); Edelman v. Jordan, 415 U.S. 651, 663 (1974). The exceptions to the Eleventh Amendment bar of suits in federal court against a state do not apply in this case. The State of Ohio has neither constitutionally nor statutorily waived its Eleventh Amendment rights. See Mixon v. State of Ohio, 193 F.3d 389, 397 (6th Cir. 1999); State of Ohio v. Madeline Marie Nursing Homes, 694 F.2d 449, 460 (6th Cir. 1982); Ohio Inns, Inc. v. Nye, 542 F.2d 673, 681 (6th Cir. 1976), cert. denied, 430 U.S. 946 (1977); see also Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989). Nor has plaintiff sued a state official seeking prospective relief for future constitutional violations. Ex Parte Young, 209 U.S. 123 (1908). In addition, Congress did not "explicitly and by clear language" express its intent to "abrogate the Eleventh Amendment immunity of the States" in enacting Section 1983. See Quern v. Jordan, 440 U.S. 332, 341-43, 345 (1979). Therefore, plaintiff's claims against the defendants in their official capacities are dismissed.
Plaintiff's complaint, liberally construed and taken as a whole, alleges sufficient facts to state a claim for relief against defendant Weaver in his individual capacity for deliberate indifference to serious medical needs under the Eighth Amendment. Farmer v. Brennan, 511 U.S. 825, 847 (1994). Therefore, plaintiff's claims against defendant Weaver in his individual capacity deserves further development and may go forward.
However, plaintiff's complaint fails to state a claim for relief under the Eighth Amendment against defendants Huerta and Newkirk in their individual capacities. In order to state a claim for relief under 42 U.S.C. § 1983 for a denial of medical care, a prisoner "must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). A prisoner who is allowed to suffer needlessly through a denial of medical care when relief is available has a cause of action under the Eighth Amendment against an individual whose deliberate indifference caused the suffering. Plaintiff must allege that prison officials have denied his reasonable requests for medical care when such need is obvious, and when he is susceptible to undue suffering or threat of tangible residual injury. Byrd v. Wilson, 701 F.2d 592, 594 (6th Cir. 1983); Westlake v. Lucas, 537 F.2d 857, 860 (6th Cir. 1976); see also Estelle, 429 U.S. at 106. Where medical assistance has been administered, such treatment must be so "woefully inadequate as to amount to no treatment at all" in order to give rise to a cause of action under § 1983. Westlake, 537 F.2d at 860-61 n. 5. Allegations of negligence in diagnosing or treating medical conditions are not actionable under § 1983. Estelle, 429 U.S. at 106; Byrd, 701 F.2d at 595 n. 2; Westlake, 537 F.2d at 860-61 n. 5. A prison official may be held liable under the Eighth Amendment for denying humane conditions of confinement, including proper medical care, only if "he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Farmer v. Brennan, 511 U.S. 825, 847 (1994).
Plaintiff fails to allege any facts indicating defendant Dr. Huerta was deliberately indifferent to his medical needs. Rather, plaintiff alleges that Dr. Huerta ordered that plaintiff immediately be transported to the hospital upon reviewing the results of the EKG. This allegation does not show Dr. Huerta took any action which disregarded a substantial risk of serious harm to plaintiff, but that Dr. Huerta took appropriate action under the circumstances presented. Plaintiff alleges no other facts of Dr. Huerta's involvement in his medical care. Therefore, the complaint against defendant Huerta must be dismissed.
Likewise, the complaint against defendant Newkirk must be dismissed because plaintiff fails to allege any facts showing he suffered any harm as a result of Newkirk's failure to check his vital signs on August 4, 2008. Plaintiff does not allege he was in any particular distress at the time or exhibited any symptoms necessitating his vital signs be checked. Any alleged failure to check his vital signs on this one occasion amounts to nothing more than mere negligence and does not state a claim for deliberate indifference to serious medical needs under the Eighth Amendment.
The complaint must be dismissed as to all other defendants in their individual capacities. Liability under § 1983 cannot be premised on the doctrine of respondeat superior. Monell v. Department of Social Services, 436 U.S. 658 (1978). A supervisor cannot be held liable unless there is evidence he directly participated in or encouraged the specific incident of misconduct. Searcy v. City of Dayton, 38 F.3d 282, 287 (6th Cir. 1994); Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir.), cert. denied, 469 U.S. 845 (1984). "At a minimum, a § 1983 plaintiff must show that a supervisory official at least implicitly authorized, approved or knowingly acquiesced in the unconstitutional conduct of the offending subordinate." Bellamy, 729 F.2d at 421; Hays v. Jefferson County, Ky., 668 F.2d 869, 874 (6th Cir.), cert. denied, 459 U.S. 833 (1982). Where a supervisor is found to have abandoned the specific duties of his position, such as adopting and implementing a particular operating procedure, liability is direct, not vicarious. Taylor v. Mich. Dept. of Corrections, 69 F.3d 76 (6th Cir. 1995). "[L]iability under § 1983 must be based on active unconstitutional behavior and cannot be based upon `a mere failure to act.'" Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999), citing Salehpour v. University of Tennessee, 159 F.3d 199, 206 (6th Cir. 1998), cert. denied, 526 U.S. 1115 (1999).
Plaintiff does not allege that defendants McWeeney, Brunsman, Myers, Weiss, and Collins were personally involved in any of his medical care. His only allegation against these defendants is that they "failed to properly oversee" the medical staff. Plaintiff has not alleged any facts indicating that any of these supervisory defendants "implicitly authorized, approved or knowingly acquiesced" in the alleged unconstitutional conduct, Bellamy 729 F.2d at 421, or that they even knew about his medical condition. Since respondeat superior may not serve as a basis for liability on these defendants, the complaint against defendants McWeeney, Brunsman, Myers, Weiss, and Collins must be dismissed.
In summary, with the exception of defendant Weaver, plaintiff's complaint against all other defendants is DISMISSED. 28 U.S.C. § 1915(e)(2)(B).
It is ORDERED that the United States Marshal serve a copy of the complaint, summons, and this order upon defendant Weaver as directed by plaintiff. All costs of service shall be advanced by the United States.
It is further ORDERED that plaintiff shall serve upon defendant Weaver or, if appearance has been entered by counsel, upon defendant's attorney, a copy of every further pleading or other document submitted for consideration by the Court. Plaintiff shall include with the original paper to be filed with the clerk of court a certificate stating the date a true and correct copy of any document was mailed to defendant or counsel. Any paper received by a district judge or magistrate judge which has not been filed with the clerk or which fails to include a certificate of service will be disregarded by the court.
It is further ORDERED that plaintiff shall inform the Court promptly of any changes in his address which may occur during the pendency of this lawsuit.
IT IS SO ORDERED.
Exhibit