Opinion
Case No. 1:99-CV-144.
DATED: February 9, 2000.
JUDGMENT
In accordance with the Opinion entered this date:
IT IS HEREBY ORDERED that Defendants' Motion for Judgment on the Pleadings or, in the Alternative, for Summary Judgment Pursuant to Rule 56(c) (Dkt. #30) is GRANTED and Plaintiff's Complaint is DISMISSED.
OPINION
Steven Kenneth Schwab filed this case without benefit of counsel complaining of events that occurred while he was incarcerated at the Newaygo County jail. He brings this action under 42 U.S.C. § 1983 claiming that the defendants violated his rights under the Eighth Amendment by failing to provide him with adequate medical care. This matter is presently before the court on Defendants' Motion for Judgment on the Pleadings or, in the Alternative, for Summary Judgment Pursuant to Rule 56(c) (Dkt. #30), filed November 15, 1999. Plaintiff has not responded. For the following reasons, the Defendants' Motion for Judgment on the Pleadings or, in the Alternative, for Summary Judgment Pursuant to Rule 56(c) is granted.
Background
Mr. Schwab allegedly suffers chronic pain in his testicles. According to Mr. Schwab, prior to his incarceration he was being seen by a neurologist and had been prescribed a TENs unit for his pain. On numerous occasions he allegedly complained to Dr. Steven Gunnell and others on the jail's medical staff about his pain and his need to be seen by a neurologist, and informed them of his prescription for a TENs unit. His complaints and requests were allegedly ignored. Three months after his incarceration, he filed this action seeking equitable relief and damages "for any medical problems that might result from [defendants'] neglect" and his pain and suffering. Mr. Schwab is no longer incarcerated.
Defendants in this action are the Newaygo County jail; the jail medical staff; Dr. Steven Gunnell; Nurse Cheryl; PA Rob; Lieutenant Byrd; and Mr. Palmiter, the jail administrator. Defendants argue that Mr. Schwab's Eighth Amendment claim is moot due to his release from jail. If the claim is not moot, Defendants contend that Mr. Schwab has failed to state a cause of action or, alternatively, that "there is no genuine issue of material fact that each of the Defendants is entitled to qualified immunity."
Standard of Review
The standard for a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) is the same as the standard for a motion under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. See Morgan v. Church's Fried Chicken, 829 F.2d 10, 11 (6th Cir. 1987). Under Rule 2(b)(6), the court's inquiry is limited to whether the challenged pleadings set forth allegations sufficient to make out the elements of a right to relief. Windsor v. The Tennessean, 719 F.2d 155, 158 (6th Cir. 1983); Great Lakes Steel v. Deggendorf, 716 F.2d 1101, 1105 (6th Cir. 1983). All allegations in the complaint are to be accepted as true and construed in favor of the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Church's Fried Chicken, 829 F.2d at 12. However, the Court need not accept as true legal conclusions or unwarranted factual inferences. See Lewis v. ACB Business Serv., Inc., 135 F.3d 389, 405 (6th Cir. 1998). The complaint should not be dismissed unless it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02.2 L.Ed.2d 80 (1957).
Equitable Relief
It is well established that a prisoner's request for injunctive relief is moot upon his transfer to a different facility or release from incarceration. See Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996); cf. City of Los Angeles v. Lyons, 461 U.S. 95, 111, 103 S.Ct. 1660, 1669, 75 L.Ed.2d 675 (1983) (holding that a plaintiff is entitled to declaratory or injunctive relief only if he has a personal stake in the outcome of the litigation). Because Mr. Schwab has been released from the Newaygo County jail and is no longer subjected to the conditions of which he complains, his request for injunctive relief is moot. His claim for damages is not mooted by his release.
Newaygo County Jail
Mr. Schwab's claim against the Newaygo County jail is in fact a claim against Newaygo County. Municipal liability cannot be imposed absent an allegation that unlawful actions were taken pursuant to a municipality's policy or custom. See Board of the County Commissioners of Bryan County v. Brown, 520 U.S. 397, 403, 111 S.Ct. 1382, 137 L.Ed.2d 626 (1997); Monell v. Dept. of Social Serv's, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A municipality may not be held liable solely because it employs a tortfeasor. See Brown, 520 U.S. at 402. A plaintiff must show a direct causal link between municipal action and the plaintiff's alleged constitutional injury. See id. at 404; see also Canton v. Harris, 489 U.S. 378, 388 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) (finding that the plaintiff alleging a municipal's inadequate training program must show that the municipal's actions were more than simple negligence, but were taken with deliberate indifference to the known or obvious consequences).
Mr. Schwab does not allege that Defendants' refusal to provide him with proper medical treatment was pursuant to a county policy or custom, and there are no facts alleged that could give rise to such an inference. Accordingly, the claim must be dismissed against the Newaygo County jail.
Personal Involvement
Section 1983 liability is premised on personal involvement. An official can be held liable under § 1983 only if the official participated in or was directly responsible for the alleged unconstitutional act. See Leach v. Shelby County Sheriff, 891 F.2d 1241, 1246 (6th Cir. 1989). A jail's medical personnel are generally responsible for decisions regarding an inmate's medical care, which in this case include Nurse Cheryl and Dr. Gunnell. Non-medical officials may be held liable for denying medical care if they adversely interfere or withhold treatment or prescriptions ordered by the medical team. See Estelle v. Gamble, 429 U.S. 97, 104-105, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Mr. Schwab, however, has not alleged that PA Bob, Lieutenant Byrd, or Mr. Palmiter interfered in any way with medical orders, nor has he alleged facts that would reasonably support such an inference. Because there is nothing to suggest that these defendants were responsible for or participated in denying Mr. Schwab a TENs unit or an examination by a neurologist, the complaint against them must be dismissed.
Decisions concerning the type of pain medication or treatment that is appropriate for an inmate, or whether an examination by a specialist is warranted, are solely within the province of the treating doctor. Nurse Cheryl had no legal authority to make such decisions and no control over the decisions made by Dr. Gunnell. Accordingly, Nurse Cheryl cannot be held liable for withholding appropriate and effective pain medication or referral to a specialist. The complaint against Nurse Cheryl must be dismissed.
Claims Against Dr. Gunnell
The question is whether Mr. Schwab has stated a claim upon which relief can be granted against Dr. Gunnell. In an Eighth Amendment claim of inadequate medical care in a prison, a plaintiff must show that a responsible state official was deliberately indifferent to the plaintiff's serious medical need. See Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Estelle v. Gamble, 429 U.S. at 106, 97 S.Ct. 285.
Mr. Schwab alleges that he has chronic testicle pain, that he was under treatment for three years before his incarceration, and that he had been prescribed a TENs unit for his pain. Mr. Schwab does not indicate what malady is responsible for his alleged chronic pain. While Mr. Schwab bears the burden of proving that his medical condition was serious, at this stage the court cannot find "beyond doubt" that Mr. Schwab does not have a serious medical condition.
Mr. Schwab alleged that he was under the care of a neurologist and complains that while incarcerated he was not allowed treatment from a neurologist. In other documents he has submitted he refers to a urologist, which seems the more likely specialist under the circumstances.
It does not necessarily follow that he had a serious medical need to be treated by a specialist. In fact, Mr. Schwab's request for damages to compensate for the possibility that he may suffer future harm weighs against such an inference. He does not allege that his symptoms were exacerbated by the lack of specialist treatment or that his medical condition worsened in any way. See, e.g. Beyerbach v. Sears, 49 F.3d 1324, 1326 (8th Cir. 1995) (finding the inmate's suit failed because he had not presented any "verifying medical evidence . . . that defendants ignored an acute or escalating situation or that delays adversely affected his prognosis"); Hill v. DeKalb Regional Youth Detention Center, 40 F.3d 1176, 1188 (11th Cir. 1994) (finding that where delayed treatment results in such a worsening of a medical condition that the prisoner suffers a life-long handicap or permanent loss, the medical need is properly deemed serious). Mr. Schwab has not stated an Eighth Amendment claim with respect to his failure to receive treatment from a specialist.
Because nothing suggests that his allegation of chronic testicle pain "moving into the groin area," does not present a serious medical need for pain treatment, the court must consider whether he has pleaded sufficient facts in regard to the issue of deliberate indifference. Mr. Schwab alleges that he informed the doctor of his pain, informed the doctor that the TENs unit had been effective, and showed him his prescription from his personal physician for a TENs unit. The doctor refused his request.
A prison official acts with deliberate indifference when "he acts with criminal recklessness," a state of mind that requires that the official act with conscious disregard of a substantial risk of serious harm. See Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). To be deliberately indifferent a prison 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. In other words, the official must know there is a risk of serious harm and consciously disregard it. It is not enough that he "should have known" of the risk. Id. at 836-837. Under this standard, allegations showing medical malpractice or negligent treatment fail to state an Eighth Amendment claim. See, e.g., Estelle v. Gamble, 429 U.S. at 105-06 ("Medical malpractice does not become a constitutional violation merely because the victim is a prisoner").
The thrust of Mr. Schwab's complaint is that Dr. Gunnell failed to follow the treatment prescribed by Mr. Schwab's personal physician. A doctor is not deliberately indifferent to an inmate's needs where the doctor simply disagrees with the professional judgment of another doctor, see White v. Napoleon, 897 F.2d 103, 110 (3d Cir. 1990), or with the inmate's own assessment of his needs. See Meriwether v. Faulkner, 821 F.2d 408, 413 (7th 1987); Smart v. Villar, 547 F.2d 112, 114 (10th Cir. 1976). Moreover, the Constitution does not guarantee an inmate the medical treatment of his choice. See Jackson v. Fair, 846 F.2d 811, 817 (1st Cir. 1988); Meriwether, 821 F.2d at 413.
Mr. Schwab submitted a copy of his inmate trust account which is now a matter of record. The document shows that in the three-month period before he filed his complaint, Mr. Schwab was seen by the doctor on three occasions, and was seen again within a week of filing the complaint, and had received a substantial amount of medication on fourteen occasions. Although the medication may not have been Mr. Schwab's choice, and may not have successfully controlled his pain, it shows that Dr. Gunnell was not deliberately indifferent to Mr. Schwab's complaints. At most, Dr. Gunnell was negligent in his decision regarding pain control, but this is not enough to establish an Eighth Amendment violation.
The court notes that Mr. Schwab had been incarcerated for only three months before he filed his complaint.
Because the court considered matters outside the pleadings, the dismissal of this claim is treated as a summary judgment. See Fed.R.Civ.P. 12(c); Noble v. Schmitt, 87 F.3d 157, 162 (6th Cir. 1996).
Qualified Immunity
In light of the court's decision, Defendants' qualified immunity argument is inapplicable. The protection of qualified immunity is available only if the court determines that a constitutional violation has occurred. See Crawford-El v. Britton, 523 U.S. 574, 118 S.Ct. 1584. 1592, 140 L.Ed.2d 759 (1998); Hoard v. Sizemore, 198 F.3d 205, 212 (6th Cir. 1999) (stating that when determining whether qualified immunity exists, the court first asks "whether the plaintiff has asserted a violation of a constitutional right at all").
Conclusion
For the foregoing reasons, the court grants the Defendants' Motion for Judgment on the Pleadings or, in the Alternative, for Summary Judgment Pursuant to Rule 56(c) (Dkt. #30).