UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JASON GUINN,

Plaintiff,

CASE NO. 2:14-CV-13085

v. HONORABLE MARIANNE O. BATTANI

CAROL MCELDOWNEY and

ALLEGIANCE HEALTH,

Defendants.

_________________________________/

OPINION AND ORDER OF SUMMARY DISMISSAL

I.

The Court has before it Plaintiff Jason Guinn’s pro se civil rights complaint filed

pursuant to 42 U.S.C. § 1983. Plaintiff is a state prisoner currently confined at the

Marquette Branch Prison in Marquette, Michigan. The Court has granted Plaintiff leave to 

proceed without prepayment of the filing fee. See 28 U.S.C. § 1915(a). In his complaint,

Plaintiff raises claims of medical malpractice, negligence, and cruel and unusual

punishment with pain and suffering arising from a blood draw while he was in police

custody at a hospital in Jackson, Michigan on March 15, 2013. Plaintiff names

phlebotomist Carol McEldowney and Allegiance Health Hospital as the defendants in this

action. He sues them in their personal and official capacities and seeks monetary

damages. Having reviewed the complaint, the Court concludes that Plaintiff fails to state

a claim upon which relief may be granted under 42 U.S.C. § 1983 and dismisses the

complaint. The Court also concludes that an appeal from this decision cannot be taken in

good faith.

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II.

Plaintiff has been granted in forma pauperis status. Under the Prison Litigation

Reform Act (“PLRA”), the Court is required to sua sponte dismiss an in forma pauperis

complaint before service upon a defendant if it determines that the action is frivolous or

malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief

against a defendant who is immune from such relief. See 42 U.S.C. § 1997e(c); 28 U.S.C.

§ 1915(e)(2)(B). The Court is similarly required to dismiss a complaint seeking redress

against government entities, officers, and employees which it finds to be frivolous or

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. § 1915A(b). A complaint

is frivolous if it lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504

U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 319, 325 (1989). 

III.

To state a federal civil rights claim under 42 U.S.C. § 1983, a plaintiff must allege

that (1) he or she was deprived of a right, privilege, or immunity secured by the federal

Constitution or laws of the United States; and (2) the deprivation was caused by a person

acting under color of state law. Flagg Bros. v. Brooks, 436 U.S. 149, 155-57 (1978); Harris

v. Circleville, 583 F.3d 356, 364 (6th Cir. 2009).

A pro se civil rights complaint is construed liberally. Haines v. Kerner, 404 U.S. 519,

520-21 (1972). Nonetheless, Federal Rule of Civil Procedure 8(a) requires that a complaint

set forth “a short and plain statement of the claim showing that the pleader is entitled to

relief,” as well as “a demand for the relief sought.” Fed. R. Civ. P. 8(a)(2), (3). The

purpose of this rule is to “give the defendant fair notice of what the . . . claim is and the

grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)

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(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957) and Fed. R. Civ. P. 8(a)(2)). While this

notice pleading standard does require not require detailed factual allegations, it does

require more than the bare assertion of legal conclusions. Twombly, 550 U.S. at 555. Rule

8 “demands more than an unadorned, the defendant-unlawfully-harmed me accusation.” 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A pleading that offers ‘labels and conclusions’

or ‘a formulaic recitation of the elements of a cause of action will not do.’” Id. (quoting

Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’

devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557). “Factual

allegations must be enough to raise a right to relief above the speculative level on the

assumption that all the allegations in the complaint are true (even if doubtful in fact).” 

Twombly, 550 U.S. at 555-56 (citations and footnote omitted).

With these standards in mind, the Court finds that Plaintiff ‘s complaint is subject to

dismissal. As an initial matter, Plaintiff fails to state a claim upon which relief may be

granted as to Allegiance Health because he fails to allege facts demonstrating Allegiance

Health’s involvement in the actions giving rise to the complaint. It is well-settled that a

plaintiff must allege the personal involvement of a defendant to state a civil rights claim

under § 1983. See Monell v. Department of Social Svs., 436 U.S. 658, 691-92 (1978)

(Section 1983 liability cannot be based upon a theory of respondeat superior or vicarious

liability); Everson v. Leis, 556 F.3d 484, 495 (6th Cir. 2009) (same); see also Taylor v.

Michigan Dep’t of Corrections, 69 F.3d 716, 727-28 (6th Cir. 1995) (plaintiff must allege

facts showing that the defendant participated, condoned, encouraged, or knowingly

acquiesced in alleged misconduct to establish liability). Plaintiff has not done so. Any

claims that Allegiance Health failed to supervise an employee, should be vicariously liable

for an employee’s conduct, and/or did not sufficiently respond to the situation is insufficient

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to state a civil rights claim. See, e.g., Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999);

see also Martin v. Harvey, 14 F. App’x 307, 309 (6th Cir. 2001). Plaintiff also does not

allege facts to show that any injury he suffered is the result of any policy or regulation, or

that any improper conduct arose from the deliberate failure to adequately investigate, train,

or supervise employees. See Ellis v. Cleveland Mun. Sch. Dist., 455 F.3d 690, 700 (6th

Cir. 2006) (setting forth three-part test for such claims). He thus fails to state a claim upon

which relief may be granted under § 1983 as to Allegiance Health.

Plaintiff’s claims against defendant McEldowney are also subject to dismissal. 

Plaintiff asserts that defendant McEldowney committed medical malpractice and was

negligent in drawing his blood. It is well-settled, however, that claims of negligence

concerning a prisoner’s medical treatment, i.e. medical malpractice, are not cognizable in

a civil rights action brought pursuant to 42 U.S.C. § 1983. Estelle v. Gamble, 429 U.S. 97,

106 (1976). An “injury caused by negligence does not constitute a deprivation of any

constitutionally-protected interest” and a claim that officials have engaged in negligent

conduct does not state a claim under §1983. Collins v. City of Harker Hgts., 503 U.S. 115,

127-28 (1992); Lewellen v. Metropolitan Gov't. of Nashville & Davidson Co., Tenn., 34 F.3d

345, 348 (6th Cir. 1994). Plaintiff thus fails to state a claim upon which relief may be

granted under § 1983 as to such matters.

The United States Supreme Court has held that “deliberate indifference to serious

medical needs of prisoners constitutes the unnecessary and wanton infliction of pain

proscribed by the Eighth Amendment.” Estelle, 429 U.S. at 104. The deliberate

indifference standard requires a prisoner to show that the defendant acted with a reckless

disregard of a known risk of serious harm to the prisoner. Farmer v. Brennan, 511 U.S.

825, 836 (1994). A plaintiff may establish deliberate indifference by a showing of grossly

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inadequate medical care. Terrance v. Northville Reg. Psych. Hosp., 286 F.3d 834, 843 (6th

Cir. 2002).

Plaintiff makes no such showing. Rather, the report he submitted with his complaint

reveals that defendant McEldowney was attempting to draw his blood at the hospital

pursuant to a police request and/or court order and that Plaintiff was uncooperative and

struggling during the procedure. Plaintiff fails to allege facts to show that defendant

McEldowney was deliberately indifferent to his medical needs under the foregoing

standards or that she was intentionally trying to harm him.

Plaintiff also asserts that defendant McEldowney subjected him to cruel and unusual

punishment and caused him pain and suffering in violation of the Eighth Amendment. To

state such a claim, a prisoner must allege that the offending conduct constitutes an

“unnecessary and unwanton infliction of pain” and that it offends contemporary standards

of decency. Hudson v. McMillian, 503 U.S. 1, 8 (1992); Ingraham v. Wright, 430 U.S. 651,

670 (1977). Such a claim has both an objective and subjective component. Farmer, 511

U.S. at 833; Wilson v. Seiter, 501 U.S. 294, 298 (1991). The objective component of

requires that the pain be serious or concern the deprivation of the “minimal civilized

measure of life’s necessities.” Rhodes v. Chapman, 452 U.S. 337, 347-49 (1981). “Not

every unpleasant experience a prisoner might endure while incarcerated constitutes cruel

and unusual punishment within the meaning of the Eighth Amendment.” Ivey v. Wilson,

832 F.2d 950, 954 (6th Cir. 1987). The subjective component requires that the offending

conduct be intentional or deliberately indifferent. Estelle, 429 U.S. at 104-05; see also

Wilson, 501 U.S. at 301-03.

Plaintiff fails to allege facts to support such an Eighth Amendment claim. Plaintiff

fails to meet the objective component because he does not allege facts to show that his

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pain was serious and/or concerned the deprivation of the minimal civilized measure of life’s

necessities. Blood draws are considered routine. See Schmerber v. California, 384 U.S.

757, 771 n. 13 (1966) (citing Breithaupt v. Abram, 352 U.S. 432, 436 (1957) (a blood test”

would not be considered offensive even by the most delicate”); United States v. Hook, 471

F.3d 766, 775 (7th Cir. 2006) (“the government’s desire for identifying information along

with the minimal pain and discomfort accompanying a blood draw take the DNA Act outside

of the ambit of cruel and unusual punishment”); Nicholas v. Goord, 430 F.3d 652, 676 (2d

Cir. 2005) (the drawing of blood is “quite a minor intrusion, of the sort that ordinary citizens

voluntarily submit to routinely for medical purposes”).

Recognizing this fact, several courts have ruled that a forced blood draw, even when

performed poorly and causing injury, is not the sort of conduct and/or harm that rises to the

level of a Eighth Amendment violation. See Ali v. McAnany, 262 F. App’x 443, 446 (3d Cir.

2008) (upholding dismissal of claims against defendants who needed four attempts to draw

prisoner’s blood); Lavite v. Wexford Health Sys., No. 13-CV-00576-JPG, 2013 WL

3776288, *2-3 (S.D. Ill. July 17, 2013) (ruling that an Eighth Amendment claim “cannot be

predicated on the de minimis use of force that would result from a mere blood draw”);

Thompson v. CCA-LAC Medical Dept., No. 1:06-CV-104, 2007 WL 390356, *5 (D. Vt. Jan.

30, 2007) (citing cases and ruling that nurse’s conduct in mistakenly drawing blood and

poking prisoner numerous times, and resulting harm to prisoner’s arms and hands, “did not

cause the sort of degeneration or extreme pain” required for an Eighth Amendment

violation); Johnson v. Illinois Dept. of Corr., No. 04-222-MJR, 2006 WL 741218, *6 (S.D.

Ill. March 22, 2006) (dismissing prisoner’s Eighth Amendment claim against defendant who

stuck him several times with a needle “nowhere near his veins” during blood draw). This

Court agrees with the reasoning of those decisions. While being stuck with a needle during

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multiple blood draw attempts can be painful, such conduct is not the type of unnecessary

and wanton infliction of pain that constitutes cruel and unusual punishment.

Plaintiff also fails to meet the subjective component of the test because he does not

allege facts to show that defendant McEldowney acted intentionally or with deliberate

indifference. Rather, the record before the Court indicates that defendant McEldowney was

drawing his blood pursuant to a police request and/or a court order, that Plaintiff was

uncooperative and struggling during the procedure, and that McEldowney was attempting

to draw Plaintiff’s blood, not trying to intentionally cause him pain or otherwise injure him. 

Any discomfort endured by Plaintiff during the blood draw was de minimis – and largely

resulted from his own uncooperative behavior. Consequently, Plaintiff fails to state an

Eighth Amendment claim. His complaint must therefore be dismissed.

IV.

For the reasons stated, the Court concludes that Plaintiff fails to state a claim upon

which relief may be granted under 42 U.S.C. § 1983 in his complaint. Accordingly, the

Court DISMISSES WITH PREJUDICE the civil rights complaint. The Court also concludes

that an appeal from this order cannot be taken in good faith. See 28 U.S.C. § 1915(a)(3);

Coppedge v. United States, 369 U.S. 438, 445 (1962).

IT IS SO ORDERED.

Date: September 10, 2014 s/Marianne O. Battani 

MARIANNE O. BATTANI

United States District Judge

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CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing Order was served upon counsel of record via the Court's ECF System to their respective

email addresses or First Class U.S. mail to the non-ECF participants on September 10, 2014.

s/ Kay Doaks 

Case Manager

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