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The full text of §1915A reads:

(a) Screening.--The court shall review, before docketing, if feasible or, in any event, as soon as practicable after

docketing, a complaint in a civil action in which a prisoner

seeks redress from a governmental entity or officer or

employee of a governmental entity.

(b) Grounds for Dismissal.--On review the court shall

identify cognizable claims or dismiss the complaint, or any

portion of the complaint, if the complaint--

(1) is frivolous, malicious, or fails to state a

claim upon which relief may be granted; or

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Keith E. Gunther,

Plaintiff

 v.

Ohio Department of Rehabilitation and

Correction, et al.,

Defendant

:

:

:

:

:

:

Civil Action 2:10-cv-00997

Judge Economus

Magistrate Judge Abel

INITIAL SCREENING

REPORT AND RECOMMENDATION

Plaintiff Keith E. Gunther, an inmate at the Marion Correctional Institution,

brings this prisoner civil rights action under 42 U.S.C. §1983. This matter is before the

Magistrate Judge for a Report and Recommendation on initial screening of the

complaint pursuant to 28 U.S.C. §1915A(a) and (b)1

 and 42 U.S.C. §1997e(c) to identify

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(2) seeks monetary relief from a defendant who

is immune from such relief.

(c) Definition.--As used in this section, the term

"prisoner" means any person incarcerated or detained in any

facility who is accused of, convicted of, sentence for, or

adjudicated delinquent for, violations of criminal law or

terms and conditions of parole, probation, pretrial release, or

diversionary program.

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cognizable claims, and to dismiss the 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. The Magistrate Judge finds

that the complaint fails to state a claim upon which relief may be granted and therefore

RECOMMENDS dismissal of the complaint.

The complaint alleges disparate claims arising over the course of three years

against a number of defendants at several prisons and prison medical facilities. As

background information, the complaint alleges that plaintiff Keith Gunther has low

back pain radiating across his lower back and left leg. Surgery in 2003 was unsuccessful.

He also has a history of paranoia and schizophrenia. At the Lorain and Marion

correctional facilities, Gunther asked for mental health care because he heard voices and

was depressed. He did not receive mental health care. He did see a neurologist and was

given Ultrium, Flexeril and Neurontin. There is no allegation in the complaint that any

of the named defendants denied him mental health care. ¶¶ 1-9. 

In December 2008, Gunther fell on ice in the prison yard and broke his arm. He

was taken to the OSU Hospital Medical Center. The orthopedic doctor was on vacation,

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and Gunther's arm was braced and put in a sling. ¶¶ 10-13A. On January 8, 2009, an

orthopedic doctor examined Gunther. ¶ 16. On January 9, 2009, plaintiff was released

from CMC and taken back to the Lorain Correctional Facility. ¶ 18. Plaintiff believed his

low back pain and broken arm pain required more pain medication than his doctors

prescribed. ¶¶ 22, 26 and 27. Gunther did not have surgery on his arm until September

29, 2009. ¶ 57.

Claims pleaded against individual defendants. There are no allegations in the

complaint that defendants Dr. Mosher or Dr. Krisko took any action to deny plaintiff

Gunther a constitutional right. The allegations against the remaining defendants will be

briefly summarized below.

Ed Castineda. When Gunther came to P-1 Medical, Castineda told him he would

use the bathroom first, then get in the shower. Complaint, ¶ 69. Sometime in August

2010, Castineda let nurses convince him plaintiff should shower in the dorm, then go to

P-1 Medical. ¶ 72.

Dr. Ojukwü. On January 12, 2009, Dr. Ojukwü examined Gunther when he was

returned to the Lorain Correctional Institution. He continued plaintiff on Ultrim,

Flexeril and Neurontin, but he did not increase his pain medication as Gunther would

have liked. ¶¶ 19-20.

Nurse Linda Burtox. Nurse Burtox told Gunther he was in the shower too long.

Plaintiff believes she was harassing him. ¶ 65.

Nurse Slown. Nurse Burtox got Nurse Slow to harass plaintiff. ¶ 67.

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Corrections Officers Jerald Raypole and Ricky Reed. They temporarily detained

plaintiff when they saw him without his arm in a sling. They also searched inside his

sling many times. Gunther believed they were unprofessional. ¶ 61.

Mrs. Tukaris. On an unspecified date, Mrs. Tukaris told plaintiff that he would

remain in hospital to avoid other inmates bumping into his broken arm. ¶ 33.

Corrections Officer Titler. On August 19, 2010, Titler, who never liked Gunther,

told him to put his hands on the wall because he had shown his P-1 pass to another

corrections officer and not to him. Titler handcuffed Gunther because plaintiff said he

was going to "get him." Plaintiff was taken to disciplinary control, where he remained

for 11 days. The rules infraction board did not believe Gunther had threatened or

disrespected Titler, although the Warden ultimately found him guilty of disrespect. ¶¶

72 and 73.

Corrections Officer Lucal. On March 6, 2009. Lucal "put his finger in my face very

close and I felt threatened. He told me I was to do as I was told . . . ." He grabbed

Gunther's broken arm to pull the pants from under his arm. ¶¶ 36-38.

Corrections Officers Dotson and Collier. They made fun of how long it took

plaintiff to change clothes to go to a doctor's appointment. They told him he only

wanted attention, and they were not going to give it. ¶ 34.

Rule 8(a), Federal Rules of Civil Procedure provides for notice pleading. Conley

v. Gibson, 355 U.S. 41, 47 (1957). The United States Supreme Court held in Erickson v.

Pardus, 551 U.S. 89, 93 (2007):

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. . . Rule 8(a)(2) requires only "a short and plain statement of the claim

showing that the pleader is entitled to relief." Specific facts showing that

the pleader is entitled to relief are not necessary; the statement need only

"'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. 554, 555, 127

S.Ct. 1955 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

Moreover, pro se complaints must be liberally construed. Erickson, 551 U.S. at 94; Hughes

v. Rowe, 449 U.S. 5, 9-10 (1980). Nonetheless, § 1983 claims subject to a motion to dismiss

based on qualified immunity "a complaint must contain sufficient factual matter,

accepted as true, to 'state a claim to relief that is plausible on its face.' Twombly, 550 U.S.

at 570." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).

Cruel and Unusual Punishment. The Eighth Amendment prohibits prison

employees from subjecting prisoners to the “‘unnecessary and wanton infliction of

pain." Ingraham v. Wright, 430 U.S. 651, 670 (1977) (quoting Estelle v. Gamble, 429 U.S. 97,

103 (1976)); Talal v. White, 403 F.3d 423, 426 (6th Cir. 2005). There is both an objective

and subjective component to an Eighth Amendment claim. Farmer v. Brennan, 511 U.S.

825, 834 (1994); Wilson v. Seiter, 501 U.S. 294, 297-300 (1991); Talal, 403 F.3d at 426; Woods

v. Lecureux, 110 F.3d 1215, 1222 (6th Cir. 1997). The objective component requires that

the pain be “sufficiently serious.” Wilson, 501 U.S. at 298; Talal, 403 F.3d at 426. The

conduct must be contrary to “‘contemporary standards of decency.’” Hudson v.

McMillian, 503 U.S. 1, 8(1992)(quoting Estelle, 429 U.S. at 103). 

To satisfy the subjective component, a plaintiff must demonstrate that the prison

officials had “a sufficiently culpable state of mind.” Farmer, 511 U.S. at 834. A “sufficCase: 2:10-cv-00997-PCE-MRA Doc #: 5 Filed: 12/01/10 Page: 5 of 8 PAGEID #: <pageID>
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iently culpable state of mind” is one in which “the official knows of and disregards an

excessive risk to inmate health or safety; the 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; accord Clark-Murphy v. Foreback, 439 F.3d 280,

286 (6th Cir. 2006); Weaver v. Shadoan, 340 F.3d 398, 410 (6th Cir. 2003). A prison official

can be liable if he “disregards that risk by failing to take reasonable measures to abate

it.” Farmer, 511 U.S. at 847; accord Greene v. Bowles, 361 F.3d 290, 294 (6th Cir. 2004).

Negligence is insufficient to establish the subjective component of an Eighth Amendment claim. Farmer, 511 U.S. at 835-40; Brooks, 39 F.3d at 128-29; see also Sanderfer v.

Nichols, 62 F.3d 151, 154-55 (6th Cir. 1995) (prison health specialist was guilty of negligence at most for her misdiagnosis and treatment of inmate, as the evidence did not

show that she was both aware of facts from which an inference could be drawn that a

substantial risk of serious harm to the inmate existed and that she did in fact draw that

inference).

Here, assuming the truth of the allegations in the complaint, plaintiff does not

plead any facts from which a reasonable juror could find that any defendant

intentionally subjected him to cruel and unusual punishment. There is no allegation the

medical providers knew of a serious medical need and intentionally decided not to treat

it. Prison officials are liable only if they know of and disregard “an excessive risk to

inmate health or safety; the 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

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draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Mere negligence does

not constitute deliberate indifference. See, Estelle, 429 U.S. at 106. At most, the complaint alleges that plaintiff disagreed with some medical decision made by treators, but

mere disagreement with the medical decision of a treator is not actionable. Estelle, 429

U.S. at 107-08; Westlake v. Lucas, 537 F.2d 857, 860 n. 5 (6th Cir. 1976). 

The claims pleaded against corrections officers do not allege brutality intentionally causing physical injury. See, 42 U.S.C. § 1997e. Most involve a corrections officer

using language that Gunther found offensive. Intentionally insulting language is not

actionable under the Eighth Amendment. Ivey v. Wilson, 832 F.2d 950, 955 (6th Cir.

1987); Roden v. Sowders, 2003 WL 40063 (6th Cir. 2003).

Accordingly, it is hereby RECOMMENDED that the complaint be DISMISSED

for failure to state a claim under 42 U.S.C. §1983.

IT IS FURTHER ORDERED that the United States Marshal serve upon each

defendant named in part III, B and C of the form civil rights complaint a summons, a

copy of the complaint, and a copy of this Order. Defendants are not required to answer

the complaint unless later ordered to do so by the Court.

The Clerk of Court is DIRECTED to mail a copy of this Order to the Attorney

General of Ohio, Corrections Litigation Section, 150 East Gay St., 16th Floor, Columbus,

OH 43215.

If any party objects to this Report and Recommendation, that party may, within

ten (10) days, file and serve on all parties a motion for reconsideration by the Court,

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

question, as well as the basis for objection thereto. See 28 U.S.C. §636(b)(1)(B); Fed. R.

Civ. P. 72(b).

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

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

Judge and waiver of the right to appeal the judgment of the District Court. Thomas v.

Arn, 474 U.S. 140, 150-152 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 

See also Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989).

s/Mark R. Abel 

United States Magistrate Judge

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