Jenkins v. Eddy

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

LEONARD JENKINS,

Plaintiff,

Case No. 2:19-cv-3388

vs. Judge Michael H. Watson

Chief Magistrate Judge Elizabeth P. Deavers

DR. ANDREW EDDY, et al.,

Defendants.

INITIAL SCREEN REPORT AND RECOMMENDATION

Plaintiff, Leonard Jenkins, a state inmate who is proceeding without the assistance of

counsel, brings this action against several individuals employed by Franklin Medical Center

(“FMC”), Pickaway Correctional Institution (“PCI”), and Ohio Department of Rehabilitation and

Correction (“ODRC”). (ECF No. 1.) On September 3, 2019, the Court granted Plaintiff leave to

proceed in forma pauperis in this action. (ECF No. 4.) This matter is before the Court for the

initial screen of Plaintiff’s Complaint under 28 U.S.C. §§ 1915(e)(2) and 1915A to identify

cognizable claims and to recommend dismissal of Plaintiff’s Complaint, or any portion of it,

which 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. 28 U.S.C. §§ 1915(e)(2),

1915A(b); see also McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997). Having

performed the initial screen, for the reasons that follow, it is RECOMMENDED that the Court

DISMISS Plaintiff’s action in its entirety pursuant to § 1915(e)(2) for failure to state a claim on

which relief may be granted.

I.

Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to

“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992).

In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are

assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from

filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490

U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)1 as part of the

statute, which provides in pertinent part:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been

paid, the court shall dismiss the case at any time if the court determines that--

* * *

(B) the action or appeal--

(i) is frivolous or malicious;

(ii) fails to state a claim on which relief may be granted; or . . . .

28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 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.

To properly state a claim upon which relief may be granted, a plaintiff must satisfy the

basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See also

Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure

12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under Rule

8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the

1Formerly 28 U.S.C. § 1915(d).

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual

demands on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B.,

727 F.3d 502, 503 (6th Cir. 2013).

Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]

pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause

of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked

assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).

Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a

complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on

its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. “The plausibility of an inference depends on

a host of considerations, including common sense and the strength of competing explanations for

the defendant’s conduct.” Flagstar Bank, 727 F.3d at 504 (citations omitted). Further, the Court

holds pro se ain complaints “‘to less stringent standards than formal pleadings drafted by

lawyers.’” Garrett v. Belmont Cnty. Sheriff’s Dep’t., No. 08-3978, 2010 WL 1252923, at *2 (6th

Cir. April 1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). This lenient

treatment, however, has limits; “‘courts should not have to guess at the nature of the claim

asserted.’” Frengler v. Gen. Motors, 482 F. App’x 975, 976–77 (6th Cir. 2012) (quoting Wells v.

Brown, 891 F.2d 591, 594 (6th Cir. 1989)).

II.

Plaintiff, currently incarcerated at FMC, has named as Defendants the following fourteen

individuals: Dr. Andrew Eddy, Annette C. Smith, Dr. Choudry Bashir, Brian Collins, Todd

Hoffman, Rosslinda Lemaster, Joshua Suedieck, John Garner, Dr. Howard Bellin, Yolanda

Ewing, Tammy Blackmon, Phillip Rice, Dr. Jerry Smacker, and Dr. Arthur Hale. (ECF No. 1.)

The entirety of Plaintiff’s Complaint alleges as follows:

Am a paralyzed inmate confined to a wheelchair . I have wounds on both buttocks

which has [sic] been there for the last five (5) years. Dr. Andrew Eddy, is the

Medical Director in Columbus, Ohio. He’s the doctor who’s turning everybody

down for surgery. Back in Feb. 2017, I had surgery on one of my wounds on my

buttock, all they did was cut a piece of skin off one place, put it over the whole. It

came a lose [sic] and I ended up with five (5) infections. The wounds that I have

is [sic] life threating [sic], causing me to be in and of [sic] the hospital all the time.

Five years ago I was told by the doctor to wear a colostomy bag until I get my

surgery, five years later no surgery. These people has [sic] been lying to me all of

this time.

Rosslinda Lemaster, R.N. she did my treatment on my buttocks. Joshua

Suedieck, Inst. Inspector.

John Garner, Nurse Practitioner. Dr. Bellin Medical Director. Yolanda

Ewing, Nurse Practitioner who works with the doctor. Tammy Blackmon, R.N.

Supervisor. Phillip Rice, L.P.N., pass out medicine, check and change. Dr. Jerry

Smacker, Fmr. Medical Director. Dr. Arthur Hale, Chief Medical for Pickaway

Corr. Inst.

Would like to have surgery on my wounds immediately because anything

could happen to me far as death.

Am asking for 4,300,000 million and three hundred thousand. And the

lawyer fees does’t [sic] come out of this money.

(ECF No. at PAGEID ## 7–8.)

As a preliminary matter, Plaintiff fails to provide factual allegations sufficient to state a

plausible cause of action against Defendants Smith, Bashir, Collins, Hoffman, Suedieck, Garner,

Bellin, Ewing, Blackmon, Rice, Smacker, or Hale. See Iqbal, 556 U.S. at 678. Plaintiff simply

lists their names and does not allege specific wrongful conduct by any of these named

Defendant. (ECF No. 1 at PAGEID ## 1, 5–7.) Plaintiff’s limited assertions therefore do not

support any claim arising under Section 1983 against any of these Defendants. Iqbal, 556 U.S. at

678; see also Leach v. Shelby Co. Sheriff, 891 F.2d 1241, 1246 (6th Cir. 1989) (providing that a

party cannot be held liable under Section 1983 unless the party personally participated in, or

otherwise authorized, approved or knowingly acquiesced in, the allegedly unconstitutional

conduct); Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984) (stating that, “[a]t a minimum a

[Section] 1983 plaintiff must show that a supervisory official at least implicitly authorized,

approved, or knowingly acquiesced in the unconstitutional conduct”).

Plaintiff alleges that Defendant Lemaster “did my treatment on my buttocks” and that

Defendant Eddy “is the Medical Director who’s turning everybody down for surgery.” (ECF No.

1 at PAGEID # 7.) From the context of these allegation, it appears that Plaintiff attempts to

assert that Defendants Lemaster and Eddy violated his rights under the Eighth Amendment to the

United States Constitution. (Id.) It is well established that “[t]he Eighth Amendment forbids

prison officials from unnecessarily and wantonly inflicting pain on an inmate by acting with

deliberate indifference toward [his] serious medical needs.” Jones v. Muskegon Cnty., 625 F.3d

935, 941 (6th Cir. 2010) (internal quotations and citations omitted). A claim for deliberate

indifference “has both objective and subjective components.” Alspaugh v. McConnell, 643 F.3d

162, 169 (6th Cir. 2011). The United States Court of Appeals for the Sixth Circuit has

explained:

The objective component mandates a sufficiently serious medical need. [Blackmore

v. Kalamazoo Cnty., 390 F.3d 890, 895 (6th Cir.2004).] The subjective component

regards prison officials’ state of mind. Id. Deliberate indifference “entails

something more than mere negligence, but can be satisfied by something less than

acts or omissions for the very purpose of causing harm or with knowledge that harm

will result.” Id. at 895–96 (internal quotation marks and citations omitted). 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.”

Id. at 896 (internal quotation marks and citation omitted).

Barnett v. Luttrell, 414 F. App’x 784, 787–88 (6th Cir. 2011); see also Taylor v. First Med.

Mgmt., No. 18-5282, 2019 WL 1313828, at *2 (6th Cir. Feb. 21, 2019) (stating that, to satisfy the

subjective component, “the prisoner must show that the defendant recklessly disregard[ed] the

substantial risk of serious harm” by showing that “the defendant perceived facts from which to

infer substantial risk to the prisoner, that he did in fact draw the inference, and that he then

disregarded that risk”) (internal quotation marks and citations omitted).

The Sixth Circuit has also noted that in the context of deliberate indifference claims:

[W]e distinguish between cases where the complaint alleges a complete denial of

medical care and those cases where the claim is that a prisoner received inadequate

medical treatment. Where a prisoner alleges only that the medical care he received

was inadequate, federal courts are generally reluctant to second guess medical

judgments. However, it is possible for medical treatment to be so woefully

inadequate as to amount to no treatment at all.

Alspaugh, 643 F.3d at 169 (internal quotations and citations omitted). “A prisoner’s allegation

that a prison has failed to treat [a prisoner’s] condition adequately . . . is evaluated under the

effect-of-delay standard[,]” which “‘requires the submission of verifying medical evidence to

establish “the detrimental effect of the delay in medical treatment.’” Anthony v. Swanson, No.

16-3444, 2017 WL 2992224, at *3 (6th Cir. July 14, 2017) (quoting Santiago v. Ringle, 734 F.3d

585, 590 (6th Cir. 2013) (citation omitted)). Additionally, “[o]rdinary medical malpractice does

not satisfy the subjective component.” Grose v. Corr. Med. Servs., Inc., 400 F. App’x 986, 988

(6th Cir. 2010); see also Santiago, 734 F.3d at 591 (“[W] a prison doctor provides treatment,

albeit carelessly or inefficaciously, to a prisoner, he has not displayed a deliberate indifference to

the prisoner’s needs, but merely a degree of incompetence which does not rise to the level of a

constitutional violation.”) (internal quotation marks and citations omitted). Moreover, “a

difference of opinion between [a prisoner] and the prison health care providers and a dispute

over the adequacy of [a prisoner’s] treatment . . . does not amount to an Eighth Amendment

claim.” Apanovitch v. Wilkinson, 32 F. App’x 704, 707 (6th Cir. 2002).

Applying this standard to his allegations against Defendants Lemaster and Eddy,

Plaintiff’s Complaint does not show that either of these Defendants perceived facts from which

they inferred substantial risk to Plaintiff, that they did in fact draw the inference, and that they

then consciously disregarded that risk. (See generally ECF No. 1 at PAGEID # 7.) Instead,

Plaintiff admits that he was in and out of the hospital receiving treatment. (Id.) While Plaintiff

complains at one point that he was “told by the doctor to wear a colostomy bag until I get my

surgery, five years later no surgery[,]” he also admits that he indeed “had surgery on one of [his]

wounds on [his] buttock” in February 2017. (Id.) Nothing in the Complaint suggests that

additional surgery was medically indicated. (Id.) To the extent that Plaintiff believes that the

actions and/or inaction of Defendants Lemaster and Eddy amounted to medical negligence or

malpractice, as previously discussed, medical incompetence or medical malpractice is

insufficient to state a claim for deliberate indifference under the Eighth Amendment. See Grose,

400 F. App’x 986, 988; Santiago, 734 F.3d at 591. Similarly, to the extent that Plaintiff believes

that he should have received different or additional treatment beyond what he received, his

disagreement “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.” Owens v. Hutchinson, 79 F. App’x 159, 161 (6th Cir. 2003); see also Apanovitch, 32 F.

App’x 704, 707; cf. Koos v. Corr. Corp. of Am., 63 F. App’x 796, 797 (6th Cir. 2003) (“A mere

difference of opinion between the plaintiff and his doctor regarding diagnosis and treatment does

not state a claim under the Eighth Amendment.”). For all of these reasons, Plaintiff has failed to

plausibly allege medical indifference claims and, therefore, his claims must be dismissed

pursuant to 28 U.S.C. § 1915(e)(2).

III.

For the reasons set forth above, it is RECOMMENDED that the Complaint in its

entirety be DISMISSED pursuant to 28 U.S.C. § 1915(e)(2) for failure to state a claim for relief

on which relief can be granted. It is FURTHER RECOMMENDED that the Court certify

pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing reasons an appeal of any Order

adopting this Report and Recommendation would not be taken in good faith and therefore, if

Plaintiff moves for leave to appeal in forma pauperis, that such request be denied. See McGore

v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).

The Clerk is DIRECTED to send a copy of this Order and Initial Screen Report and

Recommendation to the Ohio Attorney General’s Office, 150 E. Gay St., 16th Floor, Columbus,

Ohio 43215.

PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, that

party may, within fourteen (14) days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part in

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review of by the District Judge

and waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l

Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the

magistrate judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal

the district court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding

that defendant waived appeal of district court’s denial of pretrial motion by failing to timely

object to magistrate judge’s report and recommendation). Even when timely objections are filed,

appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d

981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to

specify the issues of contention, does not suffice to preserve an issue for appeal . . . .” (citation

omitted)).

IT IS SO ORDERED.

/s/ Elizabeth A. Preston Deavers______

DATED: September 9, 2019 ELIZABETH A. PRESTON DEAVERS

CHIEF UNITED STATES MAGISTRATE JUDGE