Collins #182427 v. Rhodes et al, No. 2:2019cv00145 - Document 7 (W.D. Mich. 2019)

Court Description: OPINION ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)

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Collins &#035;182427 v. Rhodes et al Doc. 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN NORTHERN DIVISION ______ CARLOS COLLINS, Plaintiff, v. Case No. 2:19-cv-145 Honorable Robert J. Jonker KAREN RHODES et al., Defendants. ____________________________/ OPINION This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983. Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), the Court is required to dismiss any prisoner action brought under federal law if the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant immune from such relief. 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c). The Court must read Plaintiff’s pro se complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and accept Plaintiff’s allegations as true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992). Applying these standards, the Court will dismiss Plaintiff’s complaint against Defendants Rhodes and Viven for failure to state a claim. Discussion I. Factual allegations Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Chippewa Correctional Facility (URF) in Kincheloe, Chippewa County, Michigan. Dockets.Justia.com The events about which he complains occurred at that facility and the G. Robert Cotton Correctional Facility (JCF) in Jackson, Jackson County, Michigan and the Chippewa Correctional Facility (URF) in Kincheloe, Chippewa County, Michigan. Plaintiff sues Dr. Karen Rhodes and Dr. Dorsey Viven, M.D. Plaintiff alleges that he was diagnosed with a hernia in 2013. On October 23, 2014, Plaintiff filed a civil rights complaint in the Eastern District of Michigan against MDOC Director Daniel Heyns and Defendant Dr. Rhodes for deliberate indifference toward his serious medical needs. See Collins v. Heyns, et al., No. 2:14-cv-14105 (E.D. Mich. Apr. 15, 2016). On April 15, 2016, Plaintiff’s claims against Defendant Rhodes were dismissed without prejudice for lack of service and failure to prosecute. However, Plaintiff alleges that he continues to suffer with a grapefruit sized hernia. Plaintiff seeks to reinstate his claims against Defendant Rhodes in this complaint. Plaintiff also alleges that Defendant Dorsey and Viven are well aware of Plaintiff’s documented hernia, left knee, and lower back conditions, but on March 4, 2019, found that Plaintiff did not need surgery. Plaintiff states that he has continuous problems with lower back and knee pain, which affect all aspects of his life, including standing and lying down. Plaintiff complains that both Defendants have refused to recommend surgery and have instead prescribed conservative treatment, providing Plaintiff with a cane, knee brace, and abdominal binder. Plaintiff also contends that the pain medication prescribed by Defendants makes his abdominal walls thinner and his hernia bigger. Plaintiff states that Defendants violated his rights under the Eighth Amendment. Plaintiff seeks compensatory damages. 2 II. Failure to state a claim A complaint may be dismissed for failure to state a claim if it fails “‘to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include more than labels and conclusions. Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”). The court must determine whether the complaint contains “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 679. Although the plausibility standard is not equivalent to a “‘probability requirement,’ . . . it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)); see also Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding that the Twombly/Iqbal plausibility standard applies to dismissals of prisoner cases on initial review under 28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B)(i)). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right secured by the federal Constitution or laws and must show that the deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). Because § 1983 is a method for vindicating 3 federal rights, not a source of substantive rights itself, the first step in an action under § 1983 is to identify the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994). III. Defendant Rhodes Plaintiff seeks to reinstate the claims he asserted against Defendant Rhodes in Collins v. Heyns, et al., No. 2:14-cv-14105 (E.D. Mich. Apr. 15, 2016). State statutes of limitations and tolling principles apply to determine the timeliness of claims asserted under 42 U.S.C. § 1983. Wilson v. Garcia, 471 U.S. 261, 268-69 (1985). For civil rights suits filed in Michigan under § 1983, the statute of limitations is three years. See Mich. Comp. Laws § 600.5805(2); Carroll v. Wilkerson, 782 F.2d 44, 44 (6th Cir. 1986) (per curiam); Stafford v. Vaughn, No. 97-2239, 1999 WL 96990, at *1 (6th Cir. Feb. 2, 1999). Accrual of the claim for relief, however, is a question of federal law. Collyer v. Darling, 98 F.3d 211, 220 (6th Cir. 1996); Sevier v. Turner, 742 F.2d 262, 272 (6th Cir. 1984). The statute of limitations begins to run when the aggrieved party knows or has reason to know of the injury that is the basis of his action. Collyer, 98 F.3d at 220.1 Plaintiff’s claims against Defendant Rhodes are untimely. He asserts claims arising in 2013 and 2014. Plaintiff had reason to know of the “harms” done to him at the time they occurred. Hence, his claims accrued in 2014. When Plaintiff originally asserted his claims against Defendant Rhodes they were timely. However, as noted above, those claims were dismissed on April 15, 2016. Plaintiff did not file the instant complaint until July 12, 2019. Assuming that the 1 28 U.S.C. § 1658 created a “catch-all” limitations period of four years for civil actions arising under federal statutes enacted after December 1, 1990. The Supreme Court’s decision in Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369 (2004), which applied this federal four-year limitations period to a suit alleging racial discrimination under § 1981 does not apply to prisoner claims under 28 U.S.C. § 1983 because, while § 1983 was amended in 1996, prisoner civil rights actions under § 1983 were not “made possible” by the amended statute. Id. at 382. 4 statute of limitations was tolled while Plaintiff’s action was pending in the Eastern District, three years and three months elapsed before he filed the instant case.2 Michigan law no longer tolls the running of the statute of limitations when a plaintiff is incarcerated. See Mich. Comp. Laws § 600.5851(9). Further, it is well established that ignorance of the law does not warrant equitable tolling of a statute of limitations. See Rose v. Dole, 945 F.2d 1331, 1335 (6th Cir. 1991); Jones v. Gen. Motors Corp., 939 F.2d 380, 385 (6th Cir. 1991); Mason v. Dep’t of Justice, No. 01-5701, 2002 WL 1334756, at *2 (6th Cir. June 17, 2002). A complaint “is frivolous where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). A complaint may be dismissed as frivolous if it is time-barred by the appropriate statute of limitations. See Dellis v. Corr. Corp. of Am., 257 F.3d 508, 511 (6th Cir. 2001). The Sixth Circuit has repeatedly held that when a meritorious affirmative defense based upon the applicable statute of limitations is obvious from the face of the complaint, sua sponte dismissal of the complaint is appropriate. See Dellis, 257 F.3d at 511; Beach v. Ohio, No. 03-3187, 2003 WL 22416912, at *1 (6th Cir. Oct. 21, 2003); Castillo v. Grogan, No. 02-5294, 2002 WL 31780936, at *1 (6th Cir. Dec. 11, 2002); Duff v. Yount, No. 02-5250, 2002 WL 31388756, at *1-2 (6th Cir. Oct. 22, 2002); Paige v. Pandya, No. 00-1325, 2000 WL 1828653 (6th Cir. Dec. 5, 2000). Accordingly, Plaintiff’s claims against Defendant Rhodes must be dismissed as frivolous. 2 Under 28 U.S.C. § 1367(d), if a federal plaintiff adds state-law claims under the federal court’s supplemental jurisdiction that are subsequently dismissed without prejudice, the statute of limitations for those claims is tolled while those claims are pending in federal court and for 30 days after federal dismissal. In Artis v. District of Columbia, No. 16-460 (U.S. Jan. 22, 2018), the Supreme Court held that the provision, on its terms, refers to the tolling of the running of the statute of limitations for the entire time it is pending. It does not constitute a mere grace period of only 30 days after dismissal for refiling. 5 IV. Defendant Viven Plaintiff claims that Defendant Viven violated his Eighth Amendment rights by denying him surgery on March 4, 2019. Plaintiff states that, like Defendant Rhodes, the only treatment provided by Defendant Viven was pain medication, a cane, a knee brace, and an abdominal binder. Plaintiff states that this treatment is inadequate to address his hernia and other medical needs. The Eighth Amendment prohibits the infliction of cruel and unusual punishment against those convicted of crimes. U.S. Const. amend. VIII. The Eighth Amendment obligates prison authorities to provide medical care to incarcerated individuals, as a failure to provide such care would be inconsistent with contemporary standards of decency. Estelle v. Gamble, 429 U.S. 102, 103-04 (1976). The Eighth Amendment is violated when a prison official is deliberately indifferent to the serious medical needs of a prisoner. Id. at 104-05; Comstock v. McCrary, 273 F.3d 693, 702 (6th Cir. 2001). A claim for the deprivation of adequate medical care has an objective and a subjective component. Farmer v. Brennan, 511 U.S. 825, 834 (1994). To satisfy the objective component, the plaintiff must allege that the medical need at issue is sufficiently serious. Id. In other words, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm. Id. The objective component of the adequate medical care test is satisfied “[w]here the seriousness of a prisoner’s need[ ] for medical care is obvious even to a lay person.” Blackmore v. Kalamazoo Cty., 390 F.3d 890, 899 (6th Cir. 2004). If the plaintiff’s claim, however, is based on “the prison’s failure to treat a condition adequately, or where the prisoner’s affliction is seemingly minor or non-obvious,” Blackmore, 390 F.3d at 898, the plaintiff must “place verifying medical evidence in the record to establish the detrimental effect of the delay in medical 6 treatment,” Napier v. Madison Cty., 238 F.3d 739, 742 (6th Cir. 2001) (internal quotation marks omitted). The subjective component requires an inmate to show that prison officials have “a sufficiently culpable state of mind in denying medical care.” Brown v. Bargery, 207 F.3d 863, 867 (6th Cir. 2000). 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.” Farmer, 511 U.S. at 835. “[T]he official must both 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 837. Not every claim by a prisoner that he has received inadequate medical treatment states a violation of the Eighth Amendment. Estelle, 429 U.S. at 105. As the Supreme Court explained: [A]n inadvertent failure to provide adequate medical care cannot be said to constitute an unnecessary and wanton infliction of pain or to be repugnant to the conscience of mankind. Thus, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. Id. at 105-06 (quotations omitted). Thus, differences in judgment between an inmate and prison medical personnel regarding the appropriate medical diagnoses or treatment are not enough to state a deliberate indifference claim. Sanderfer v. Nichols, 62 F.3d 151, 154-55 (6th Cir. 1995); Ward v. Smith, No. 95-6666, 1996 WL 627724, at *1 (6th Cir. Oct. 29, 1996). This is so even if the misdiagnosis results in an inadequate course of treatment and considerable suffering. Gabehart v. Chapleau, No. 96-5050, 1997 WL 160322, at *2 (6th Cir. Apr. 4, 1997). 7 The Sixth Circuit distinguishes “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.” Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976). If “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.” Id.; see also Rouster v. Saginaw Cty., 749 F.3d 437, 448 (6th Cir. 2014); Perez v. Oakland Cty., 466 F.3d 416, 434 (6th Cir. 2006); Kellerman v. Simpson, 258 F. App’x 720, 727 (6th Cir. 2007); McFarland v. Austin, 196 F. App’x 410 (6th Cir. 2006); Edmonds v. Horton, 113 F. App’x 62, 65 (6th Cir. 2004); Brock v. Crall, 8 F. App’x 439, 440 (6th Cir. 2001); Berryman v. Rieger, 150 F.3d 561, 566 (6th Cir. 1998). “Where the claimant received treatment for his condition, as here, he must show that his treatment was ‘so woefully inadequate as to amount to no treatment at all.’” Mitchell v. Hininger, 553 F. App’x 602, 605 (6th Cir. 2014) (quoting Alspaugh v. McConnell, 643 F.3d 162, 169 (6th Cir. 2011)). He must demonstrate that the care he received was “so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness.” See Miller v. Calhoun Cty., 408 F.3d 803, 819 (6th Cir. 2005) (quoting Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989)). Plaintiff alleges that his medical needs included degenerative changes in his left knee, a degenerated disk in his lower back, “spondylolisthesis and spondylolysis,” and “a symptomatic mid epigastric direct hernia.” Plaintiff insists that he needs surgery for his hernia and that Defendant Viven’s denial of surgery is unreasonable. However, as noted above, 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. Plaintiff’s allegations show that he received constant 8 conservative medical treatment for his hernia, which includes an abdominal binder and pain medication. The fact that Defendant Viven denied Plaintiff’s request for surgery is a matter of medical judgment which does not rise to a federal constitutional violation. Courts have determined that a physician’s decision to treat a prisoner’s hernia, including the decision to perform corrective surgery, is a matter of medical judgment which does not give rise to a federal constitutional violation. See, e.g., Winslow v. Prison Health Serv., 406 F. App’x 671 (3rd Cir. 2011) (prison doctors did not act with deliberate indifference to prisoner’s medical needs by deciding to forego surgery in treatment of prisoner’s hernia, even though doctors considered the cost of the procedure in declining surgery, where the prisoner’s hernia was not strangulated or incarcerated and the doctor stated that the standard treatment for an inguinal hernia was non-surgical, and that with proper treatment the hernia could heal without surgical intervention); Palazon v. Sec. for Dep’t of Corr., 361 F. App’x. 88, 89-90 (11th Cir. 2010) (where medical records indicated that a prisoner’s hernia was treatable without surgery, defendant state prison officials were not deliberately indifferent for making decision not to perform surgery; this case presented a classic “matter of medical judgment” which is not an appropriate basis for a federal Eighth Amendment claim). Bradley v. Hallsworth, No. 1:09-CV-1070, 2011 WL 4404116, at *8 (W.D. Mich. Aug. 19, 2011), report and recommendation adopted, No. 1:09-CV-1070, 2011 WL 4404080 (W.D. Mich. Sept. 21, 2011). Plaintiff’s disagreement with the conservative course of medical treatment set by Defendant Viven does not state a federal constitutional claim under the Eighth Amendment. Therefore, Defendant Viven is properly dismissed from this action. Conclusion Having conducted the review required by the Prison Litigation Reform Act, the Court determines that Defendants Rhodes and Viven will be dismissed for failure to state a claim, under 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c). The Court must next decide whether an appeal of this action would be in good faith within the meaning of 28 U.S.C. § 1915(a)(3). See McGore v. Wrigglesworth, 114 F.3d 601, 611 (6th Cir. 1997). For the same reasons that the Court dismisses the action, the Court discerns no good-faith basis for an appeal. Should Plaintiff appeal this decision, the Court will assess the 9 $505.00 appellate filing fee pursuant to § 1915(b)(1), see McGore, 114 F.3d at 610-11, unless Plaintiff is barred from proceeding in forma pauperis, e.g., by the “three-strikes” rule of § 1915(g). If he is barred, he will be required to pay the $505.00 appellate filing fee in one lump sum. This is a dismissal as described by 28 U.S.C. § 1915(g). A judgment consistent with this opinion will be entered. Dated: November 1, 2019 /s/ Robert J. Jonker ROBERT J. JONKER CHIEF UNITED STATES DISTRICT JUDGE 10

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