Maldonadodeher #735228 v. Corizon Medical Services, Inc. et al, No. 2:2016cv00021 - Document 5 (W.D. Mich. 2016)

Court Description: OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

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Maldonadodeher #735228 v. Corizon Medical Services, Inc. et al Doc. 5 UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN NORTHERN DIVISION JOSE RUBEN MALDONADODEHER, Plaintiff, Case No. 2:16-cv-21 v. Honorable Robert Holmes Bell CORIZON MEDICAL SERVICES, INC., et al., Defendants. ____________________________________/ OPINION This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983. The Court has granted Plaintiff leave to proceed in forma pauperis. Under the Prison Litigation Reform Act, PUB. L. NO. 104-134, 110 STAT. 1321 (1996), 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 for failure to state a claim against Defendants Jeffrey Woods and M. McLean. The Court will serve the complaint against Defendants Corizon Medical Services, Inc., Melissa LaPlant, and Penny Filion. Dockets.Justia.com Discussion I. Factual allegations Plaintiff Jose Ruben Maldonadodeher, a prisoner currently confined at the Ojibway Correctional Facility (OCF), filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 against Defendants Corizon Medical Services, Inc., Jeffrey Woods, M. McLean, Melissa LaPlant, and Penny Filion, who were employed at the Chippewa Correctional Facility (URF) during the pertinent time period. In his complaint, Plaintiff asserts that while he was incarcerated at URF, he was assaulted by another prisoner on September 19, 2015, and suffered a broken jaw. Plaintiff was taken to a hospital emergency room outside the prison and his jaw was wired shut. The doctor who treated Plaintiff prescribed a liquid diet and Ultram for pain. In addition, Plaintiff was told that the wires should be removed in 3 to 4 weeks. Plaintiff states that Defendants failed to comply with the doctor’s prescriptions and only gave him Tylenol for pain. In addition, Plaintiff states that his detail for a liquid diet expired on October 22, 2015, but that the wires in his jaw had not yet been removed. Plaintiff was unable to eat and filed two kites with medical and dental services. On October 27, 2015, Dennis Miller, RN, responded to Plaintiff’s kite and stated that Plaintiff would be scheduled for a follow-up visit with the Oral surgeon. On October 28, 2015, Plaintiff filed a grievance regarding this issue, stating that he had been unable to eat for the past 6 days. In the November 5, 2015, grievance response, Defendant Filion states: Patient’s primary complaint is that his liquid diet detail and his order for resource expired on October 22, 2015, while he still had the wires on his jaw and he was unable to obtain a renewal of his details. -2- Investigation of the patient’s complaint and the patient’s [electronic medical record] shows that the patient had a detail [for a] full liquid diet from September 25, 2015 until October 22, 2015 and [an] order for resource from September 24, 2015 until October 20, 2015. Review of the [electronic medical record] shows that only one request for a renewal of the liquid diet and resource was received on October 27, 2015. Review of the health care telephone log and the unit log book does not show any calls from the unit on behalf of the patient. The dental assistant who responded to the request for renewal has been reminded that if there is no dentist available she should have medical staff assist with details and orders for dental. The patient has since had his wires removed from his jaw. See ECF No. 1, PageID.13. Plaintiff claims that Defendants violated his constitutional rights by preventing him from receiving proper medical care, depriving him of the ability to eat for several days, interfering with his ability to file grievances, and failing to properly supervise prison employees. Plaintiff seeks damages. 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 -3- 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 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). The court notes that Plaintiff’s claims against Defendant Woods are based solely on the fact that he was warden at URF during the pertinent time period. Liability under Section 1983 must be based on more than merely the right to control employees. Polk Co. v. Dodson, 454 U.S. 312, 325-26 (1981); Monell v. New York City Department of Social Services, 436 U.S. 658 (1978). Thus, Section 1983 liability cannot be premised upon mere allegations of respondeat superior. Monell, 436 U.S. at 691; Polk, 454 U.S. at 325. A party cannot be held liable under Section 1983 absent a showing that the party personally participated in, or otherwise authorized, approved or -4- knowingly acquiesced in, the allegedly unconstitutional conduct. See e.g. Leach v. Shelby Co. Sheriff, 891 F.2d 1241, 1246 (6th Cir. 1989), cert. denied, 495 U.S. 932 (1990); Hays v. Jefferson, 668 F.2d 869, 874 (6th Cir.), cert. denied, 459 U.S. 833 (1982). See also Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir.), cert. denied 469 U.S. 845 (1984). Supervisory officials can be held liable for the acts of their subordinates only if plaintiff establishes that the supervisor failed to appropriately discharge his supervisory duties, and that this failure resulted in a denial or deprivation of plaintiff’s federal rights. See e.g. Leach, 891 F.2d at 1246; Hayes v. Vessey, 777 F.2d 1149, 1154 (6th Cir. 1985). However, the failure of a supervisor to supervise, control or train the offending employee is not actionable absent a showing that the official implicitly encouraged, authorized, approved or knowingly acquiesced in, or in some other way directly participated in, the offensive conduct. Leach, 891 F.2d at 1246. Such a claim requires, at a minimum, that the official had knowledge of the offending employee’s conduct at a time when the conduct could be prevented, or that such conduct was otherwise foreseeable or predictable. See e.g. Gibson v. Foltz, 963 F.2d 851, 854 (6th Cir. 1992). In addition, plaintiff must show that defendant had some duty or authority to act. See e.g. Birrell v. Brown, 867 F.2d 956, 959 (6th Cir. 1989) (lower level official not liable for shortcomings of building); Ghandi v. Police Dept. of City of Detroit, 747 F.2d 338, 351 (6th Cir. 1984) (mere presence at the scene is insufficient grounds to impose Section 1983 liability in the absence of a duty to act); accord Hall v. Shipley, 932 F.2d 1147 (6th Cir. 1991). In addition, merely bringing a problem to the attention of a supervisory official is not sufficient to impose such liability. See Shelly v. Johnson, 684 F. Supp. 941, 946 (W.D. Mich. 1987) (Hillman, C.J.), aff’d 849 F.2d 228 (6th Cir. 1988). Finally, supervisory liability claims -5- cannot be based on simple negligence. Leach, 891 F.2d at 1246; Weaver v. Toombs, 756 F. Supp. 335, 337 (W.D. Mich. 1989), aff’d 915 F.2d 1574 (6th Cir. 1990). Plaintiff has not alleged facts establishing that Defendant Woods was personally involved in the activity which forms the basis of his claim. Defendant Woods’ only role in this action involves the denial of administrative grievances or the failure to act. Defendant Woods cannot be liable for such conduct under § 1983. Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999), cert. denied, 530 U.S. 1264 (2000). Accordingly, the Court concludes that Plaintiff’s claims against Defendant Woods are properly dismissed for lack of personal involvement. In addition, Plaintiff’s claim that Defendant McLean interfered with his ability to grieve his claims by refusing to provide him with step II grievance appeal forms is properly dismissed for lack of merit. Plaintiff has no due process right to file a prison grievance. The courts repeatedly have held that there exists no constitutionally protected due process right to an effective prison grievance procedure. See Hewitt v. Helms, 459 U.S. 460, 467 (1983); Walker v. Mich. Dep’t of Corr., 128 F. App’x 441, 445 (6th Cir. 2005); Argue v. Hofmeyer, 80 F. App’x 427, 430 (6th Cir. 2003); Young v. Gundy, 30 F. App’x 568, 569-70 (6th Cir. 2002); Carpenter v. Wilkinson, No. 993562, 2000 WL 190054, at *2 (6th Cir. Feb. 7, 2000); see also Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996); Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994) (collecting cases). Michigan law does not create a liberty interest in the grievance procedure. See Olim v. Wakinekona, 461 U.S. 238, 249 (1983); Keenan v. Marker, 23 F. App’x 405, 407 (6th Cir. 2001); Wynn v. Wolf, No. 93-2411, 1994 WL 105907, at *1 (6th Cir. Mar. 28, 1994). Because Plaintiff has no liberty interest in the grievance process, Defendant McLean’s conduct did not deprive him of due process. -6- Moreover, to the extent that Plaintiff is asserting a First Amendment access to courts claim against Defendant McLean, his right of access to the courts to petition for redress of his grievances (i.e., by filing a lawsuit) cannot be compromised by his inability to file institutional grievances. See, e.g., Lewis v. Casey, 518 U.S. 343, 355 (1996) (requiring actual injury); Bounds v. Smith, 430 U.S. 817, 821-24 (1977). The exhaustion requirement only mandates exhaustion of available administrative remedies. See 42 U.S.C. § 1997e(a). If Plaintiff were improperly denied access to the grievance process, the process would be rendered unavailable, and exhaustion would not be a prerequisite for initiation of a civil rights action. In light of the foregoing, the Court finds that Plaintiff fails to state a cognizable claim. Finally, the court notes that Plaintiff’s claims against Defendants Corizon Medical Services, LaPlant, and Filion for preventing him from receiving appropriate medical treatment are nonfrivolous and may not be dismissed on initial review. Conclusion Having conducted the review required by the Prison Litigation Reform Act, the Court determines that Defendants Woods and McLean will be dismissed for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c). The Court will serve the complaint against Defendants Corizon Medical Services, LaPlant, and Filion. An Order consistent with this Opinion will be entered. Dated: March 29, 2016 /s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE -7-

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