Opinion
Case No. 1:06-cv-403.
September 14, 2006
ORDER
Plaintiff, an inmate at the Southern Ohio Correctional Facility (SOCF) in Lucasville, Ohio, brings this action pursuant to 42 U.S.C. § 1983 alleging a violation of his constitutional rights. On June 28, 2006, the Court ordered plaintiff to submit a copy of the complaint, summons, and United States Marshal form for each of the defendants named in this lawsuit. (Doc. 2). Plaintiff subsequently submitted a complaint signed by him on July 19, 2006. This complaint appears to clarify the claims made in his original complaint filed on June 28, 2006. (Doc. 1). Accordingly, the Court shall construe the complaint dated July 19, 2006 as plaintiff's amended complaint and DIRECTS the Clerk of Court to file this document as plaintiff's amended complaint.
This matter is before the Court for a sua sponte review of the amended complaint to determine whether the amended 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 28 U.S.C. §§ 1915(e)(2)(B), 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. § 1915A(b)(1-2). A complaint fails to state a claim for relief "if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Brown v. Bargery, 207 F.3d 863, 867 (6th Cir. 2000).
Plaintiff's amended complaint is brought against Terry Collins, the Director of the Ohio Department of Rehabilitation and Correction (ODRC), Gary Croft, the ODRC Chief Inspector, William Eleby, the Chief of the ODRC Bureau of Classification, ODRC employees Kay Northrope and Deborah Nixon-Hughes, SOCF Warden Edwin Voorhies, and SOCF employees Mona Parks, Dr. James McWeeney, Dirk Prise, James Goodman, and Dennis Packard. Plaintiff's amended complaint alleges that when he arrived at SOCF on November 2, 2005, Dr. McWeeney took him off Lantus and Humolog insulin without examining him or reviewing his medical chart. Plaintiff was given "regular" insulin which was ineffective. Plaintiff states Dr. McWeeney refused to properly treat plaintiff's diabetes from November 28 through December 1, 2005, and, as a result, plaintiff was hospitalized for fourteen days for "out of control blood sugars."
Plaintiff also alleges that on December 16, 17, and 18, 2005, he was forcibly administered insulin injections without his consent and without a court order by defendant Packard at the direction of Warden Voorhies. Plaintiff states that Warden Voorhies filed for an emergency guardianship over plaintiff, but was not granted emergency guardianship until after he was forcibly administered the insulin injections. (Amended Complaint, attachment).
Plaintiff alleges he saw Dr. McWeeney in February 2006, who failed to treat him for his symptoms of neuropathy. Plaintiff states that Dr. McWeeney subsequently wrote a doctor's order on May 14, 2006 "to have the medical staff force medical treatment on [him] if [he] refused the inadequate treatment." (Amended Complaint at 7).
Plaintiff states that on November 12 and 23, 2005, and February 23, 2006, he sent kites and informal complaints to Mona Parks, the SOCF Health Care Administrator, about the inadequate medical treatment he was receiving but "at no time did she ever try to help." Id.
Plaintiff states that on March 9, April 30, and May 10, 2006, he sent kites and informal complaints to Dirk Prise, the SOCF Mental Health Administrator, about the inadequate treatment and forced medication. Plaintiff states defendant Prise "always answered my paper work telling me what someone else said." Id. Plaintiff also filed grievances with James Goodman, the SOCF Institutional Inspector, and appeals to ODRC Chief Inspector Gary Croft on March 15 and 19, 2006, which were denied "with no investigation done." Id.
Plaintiff complains that William Eleby improperly approved his transfer to SOCF from the Trumbull Correctional Institution in 2005, and subsequently denied his appeal protesting the transfer. He also alleges that defendant Eleby directed that plaintiff be placed in "4B the hole" without doing an investigation. (Amended Complaint at 8).
Plaintiff alleges he personally spoke with Deborah Nixon-Hughes, the Chief Mental Health Director, about the forcible administration of psychiatric medications on plaintiff. Plaintiff states he wrote to Kay Northrope, the medical director over all the prison doctors, about his transfer from the Frazier Medical Center to the Trumbull Correctional Institution in June 2005, but never received a response. Plaintiff also states he is in the process of writing a letter to Terry Collins, the ODRC Director, about his problems at SOCF. (Amended Complaint at 9). Plaintiff seeks declaratory, injunctive, and monetary relief.
Because it does not appear beyond doubt that plaintiff can prove no set of facts in support of his Eighth Amendment deliberate indifference to serious medical needs claims against defendants McWeeney, Parks, Prise, and Goodman, these claims shall be permitted to go forward. Likewise, because plaintiff is proceeding pro se, the Court liberally construes the amended complaint as alleging a due process claim of being forcibly administered medication without plaintiff's consent. See Washington v. Harper, 494 U.S. 210, 221 (1990). This claim against defendants Packard, Voorhies, and Croft shall also be permitted to proceed.
Plaintiff's claim that defendant Eleby improperly approved his transfer to SOCF and caused his placement in "4B the hole" must be dismissed for failure to state a claim upon which relief may be granted. Plaintiff's allegations fail to state a claim for a denial of due process because plaintiff has failed to allege that defendant Eleby's actions had the effect of altering the term of his imprisonment or imposed restraints which amounted to an "atypical and significant hardship on [plaintiff] in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484 (1995). See Jones v. Baker, 155 F.3d 810, 812 (6th Cir. 1998); Mackey v. Dyke, 111 F.3d 460 (6th Cir. 1997), cert. denied, 118 S.Ct. 136 (1997); Rimmer-Bey v. Brown, 62 F.3d 789 (6th Cir. 1995). Plaintiff does not allege facts showing that his transfer to SOCF and placement in Unit 4B resulted in the lengthening of his prison sentence, the withdrawal of good-time credits, or the deprivation of any necessities of life. Sandin, 515 U.S. at 486; Smith v. Corrections Corp. of America, 5 Fed. Appx. 443, 444, 2001 W.L. 223873, **1 (6th Cir. 2001) (unpublished) (thirty days of disciplinary segregation does not rise to level of atypical and significant hardship). See also Jones, 155 F.3d at 812 (6th Cir. 1998) (administrative segregation for two and a half years did not satisfy Sandin); Mackey v. Dyke, 111 F.3d 460, 463 (6th Cir. 1997) (administrative confinement for 117 days for lack of bed space could not satisfy Sandin); Collmar v. Wilkinson, 187 F.3d 635 (6th Cir. 1999) (unpublished), 1999 W.L. 623708 (30 days in Security Control, 14 days in Disciplinary Control and six to eight months in Administrative Control were not atypical hardship under Sandin). Cf. Wilkinson v. Austin, 125 S.Ct. 2384, 2394-95 (2005) (holding that transfer to Ohio's "supermax" prison "imposes an atypical and significant hardship" given combination of extreme isolation of inmates, prohibition of almost all human contact, indefinite duration of assignment, and disqualification for parole consideration of otherwise eligible inmates). Moreover, to the extent plaintiff's security classification may have been increased as a result of his transfer to SOCF, such action does not constitute an atypical and significant hardship because heightened security status is one of the ordinary incidents of prison life. See Harbin-Bey v. Rutter, 420 F.3d 571, 577 (6th Cir. 2005). See also Workman v. Wilkinson, 23 Fed. Appx. 439, 2001 W.L. 1450709 (6th Cir. 2001) (unpublished), citing Sandin, 515 U.S. at 484. Because plaintiff does not have a protected liberty interest under the circumstances alleged, his complaint fails to state a due process claim against defendant Eleby.
Finally, the complaint against defendants Nixon-Hughes, Northrope, and Collins is dismissed. Plaintiff fails to allege any personal wrongdoing or misconduct on the part of these defendants which would give rise to a claim under the Constitution. Therefore, dismissal as to these defendants is appropriate.
Accordingly, it is hereby ORDERED that plaintiff's claims against defendants McWeeney, Parks, Prise, Goodman, Packard, Voorhies, and Croft shall be permitted to proceed as set forth in this Order. Plaintiff's remaining claims against defendants Eleby, Nixon-Hughes, Northrope, and Collins are DISMISSED for failure to state a claim upon which relief may be granted.
It is ORDERED that the United States Marshal serve a copy of the complaint (Doc. 1), amended complaint, summons, and this order upon defendants McWeeney, Parks, Prise, Goodman, Packard, Voorhies, and Croft as directed by plaintiff. All costs of service shall be advanced by the United States.
It is further ORDERED that plaintiff shall serve upon defendants or, if appearance has been entered by counsel, upon defendants' 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.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing reasons an appeal of this Court's Order would not be taken in good faith. See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).
IT IS SO ORDERED.