IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

DONALD R. SLATTERY,

Plaintiff,

vs. Civil Action 2:11-CV-202 

 Judge Watson

Magistrate Judge King

GARY MOHR, et al.,

Defendants.

REPORT AND RECOMMENDATION

Plaintiff Donald Slattery (“plaintiff”), an Ohio inmate formerly

incarcerated at the Ross Correctional Institution (“RCI”) and currently

incarcerated at the Marion Correctional Institution (“MCI”), brings this

action pursuant to 42 U.S.C. §1983 alleging deliberate indifference to

his medical needs in violation of the Eighth and Fourteenth Amendments

to the United States Constitution. See Initial Screen of the Complaint,

Doc. No. 4; Complaint, Doc. No. 3. Plaintiff seeks declaratory,

injunctive and monetary relief. Complaint, Doc. No. 3. Plaintiff has

named six employees of the Ohio Department of Rehabilitation and

Correction (“ODRC”) as defendants: Gary Mohr, Director of ODRC; Dr.

Andrew Eddy, Medical Director for ODRC’s Bureau of Medical Services;

Robert Jeffries, Warden at RCI; Lisa Bethel, Health Care Administrator

(“HCA”) at RCI; Kelley Detillon, Dietician Technician at RCI; and Dr.

Gary Krisher, Chief Medical Officer (“CMO”) at RCI (collectively,

“defendants”). 

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This matter is before the Court for consideration of defendants’

Motion for Summary Judgment, Doc. No. 27. For the reasons that follow,

it is RECOMMENDED that defendants’ motion be GRANTED. 

I. Background

In the verified Complaint, plaintiff alleges that he suffers from

Crohn’s disease [at times referred to as “CD”]and gastroesophageal reflux

disease [at times referred to as “GERD”] and that he received inadequate

treatment for these conditions from approximately September 2005 to April

2007 and again from March 2009 to January 2011. Complaint, Doc. No. 3,

¶¶ 11, 25, 26, 72, 77; Plaintiff’s Memorandum in Opposition to Summary

Judgment, Doc. No. 30, pp. 6, 8, 17 (“Memorandum in Opposition”).

Plaintiff’s allegations relating to the period September 2005 to

April 2007 concern treatment administered by medical professionals not

named as defendants.1 Complaint, Doc. No. 3, ¶¶ 26-34. It is therefore

unnecessary to further address those allegations. Moreover, plaintiff

acknowledges that the care that he received during the period April 2007

to March 2009 was adequate. Memorandum in Opposition, Doc. No. 30, p.8

1

In particular, plaintiff alleges that he requested treatment and was

seen by Dr. James Coulter soon after his arrival at RCI in September 2005, and

that despite plaintiff’s reports of illness Dr. Coulter failed to prescribe

medicine or refer plaintiff to a specialist. Complaint, ¶¶ 25-26. Plaintiff

alleges that adequate treatment could have prevented the surgery that he

underwent in October 21, 2005 “to repair an active perirectal abcess . . .

[and] to determine the source of the infection and possible fistula.” Id. ¶

27. Plaintiff also alleges that he was seen by Dr. Coulter in November 2005

and prescribed an antibiotic “to battle the active infection in his perirectal

abcess”; that RCI staff submitted a request for specialist care for plaintiff

in February 2006; that “plaintiff continued to receive sporadic, minimal care

over the next several months, and Dr. James Coulter prescribed the pain

medication Tramadol to mask the pain symptoms the plaintiff had developed”;

and that he received a CT scan in March 2007 but that “[n]o other examinations

or actions were taken.” Id. ¶¶ 30, 33, 34. Because plaintiff does not

name Dr. Coulter as a defendant, and because he does not allege that any of

the named defendants directly participated in his care prior to March 2009,

the Court will not address these allegations.

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(acknowledging that "[f]rom April 2007 to March 2009, [he] did receive

medical attention from ODRC medical staff and by Edward J. Levine, M.D.,

who is a board certified Gastroenterologist with the Ohio State

University Medical Center"); see also Complaint, Doc. No. 3, ¶ 77

(“During a period of eight months from August 2008 until March 2009 the

plaintiff did receive appropriate care from Dr. Levine at the Ohio State

University G.I. Clinic.”). It is therefore unnecessary to repeat

plaintiff’s allegations regarding his treatment for that period. 

Plaintiff does complain that, beginning in March 2009, the named

defendants were deliberately indifferent to his serious medical needs.

Plaintiff’s allegations about defendant Detillon, the dietician

technician at RCI, concern a single appointment in March 2009. Id. ¶ 43;

see Motion for Summary Judgment, Doc. No. 27, p.1. Plaintiff, who

alleges that he was referred to defendant Detillon by Dr. Levine for a

dietary consultation, complains that defendant Detillon “arranged for her

superiors to cancel the plaintiff’s prescriptions” for Ensure, “reasoning

. . . that the plaintiff weighed too much to receive Ensure, as at fivefoot ten-inches the plaintiff would have to weigh less than one hundred

sixty-five pounds to qualify for nutritional supplements.” Complaint,

Doc. No. 3, ¶ 43; see also Defendants’ Exhibit C, Doc. No. 27-3, p.1.

Plaintiff also complains about diet advice given by defendant Detillon:

Plaintiff alleges that defendant Detillon “informed the plaintiff that

she had never heard of tap water, beef, port, soy, milk, dairy products,

or ruffage [sic] aggravating C.D. [Crohn’s disease], and that the

plaintiff should be eating these foods as they are served in the

cafeteria as part of his regular diet.” Complaint, Doc. No. 3, ¶ 43; see

also Defendants’ Exhibit C, Doc. No. 27-3, p.1; Plaintiff’s Exhibit 27,

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Doc. No. 30-1, pp. 27-28. Plaintiff alleges that defendant Detillon

offered “[n]o advice towards a C.D. or G.E.R.D. specific diet.” 

Complaint, Doc. No. 3, ¶ 43; but see Plaintiff’s Exhibit 27, Doc. No. 30-

1, p.27 (nutrition assessment noting goal of “[m]aintain[ing] a healthy

BMI”).

Plaintiff admits that he was seen by defendant Krisher, the CMO at

RCI, and prescribed different medications for Crohn’s disease and

gastroesophageal reflux disease on three occasions: (1) in March 2010

defendant Krisher “extended the plaintiff’s prescriptions for Prilosec,

Docusate, Asacol, Imuran, and Tramadol,” Complaint, ¶ 50, (2) in

September 2010 defendant Krisher admitted plaintiff to the infirmary and

prescribed “two Prilosec tablets daily . . . for fourteen days, and

Tramadol 100mg three times daily for the duration of the plaintiff’s

Infirmary admission,” id. ¶ 59, and (3) during a period extending from

January 11 to January 14, 2011, plaintiff was seen by defendant Krisher,

admitted to the infirmary, given Asacol, Azathioprine, Tylenol and

Zantac, and was discharged with prescriptions for Tylenol, Zantac, and

a fiber laxative, in addition to an existing prescription for

Azathioprine, id. ¶¶ 68-71. See Defendants’ Exhibit A, Doc. No. 27-1,

p.3 (declaring that plaintiff was admitted to the infirmary and examined

during this period “[i]n accordance with the ODRC algorithm for Crohn’s

disease” and that “stool counts . . .[and] a Complete Blood Count (‘CBC’)

test” were conducted).

Plaintiff alleges that defendant Krisher improperly cancelled

existing appointments or prescriptions. In particular, plaintiff alleges

that (1) on May 14, 2009 and July 28, 2009, defendant Krisher cancelled

plaintiff’s scheduled appointment with Dr. Levine, noting on the later

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date that the prison could treat plaintiff “in-house,” Complaint, ¶¶ 46,

48; (2) on June 9, 2010, defendant Krisher cancelled an existing

prescription for the pain medication Tramadol and issued instructions

advising plaintiff that if he was “experiencing chronic pain . . . [he

could] self-admit to the Infirmary, and . . . receive as much Tramadol

as needed,” id. ¶ 52; see also Defendants’ Exhibit A, Doc. No. 27-1, p.2

(declaring that defendant Krisher “changed his analgesic Tramadol/Ultram

to be used only when his pain was moderate to severe” as determined

following an admission to Inmate Health Service because the medicine “is

not recommended for Crohn’s condition”); Defendants’ Exhibit M, Doc. No.

27-13, p.1; (3) on August 14, 2010, defendant Krisher cancelled existing

prescriptions for Prilosec and Colace without examining the plaintiff,

action that a nurse later informed plaintiff was taken pursuant to a

prison policy requiring that over-the-counter medication be purchased

through the prison commissary, Complaint, ¶¶ 55, 57; and (4) on or about

October 28, 2010, defendant Krisher cancelled an existing prescription

for Colace and instructed plaintiff to purchase the medication in the

prison commissary, id. ¶ 62.

Plaintiff also alleges that he was seen by medical professionals, 

who are not named as defendants in this action, on five dates from July

2009 to December 2010: (1) in approximately July 2009, plaintiff was

seen by two nurses in the prison and, as he requested, received a renewed

prescription for Tramadol, id. ¶ 49, (2) on October 20, 2010, plaintiff

was seen by a nurse in the prison, admitted to the infirmary and released

with prescriptions for Prilosec, Asacol, Colace, and Azathioprine, id.

¶ 61, (3) on October 28, 2010, plaintiff was seen by a nurse in the

prison and informed of defendant Krisher’s cancellation of his

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prescription for Colace, id. ¶ 62,2 (4) on November 16, 2010, plaintiff

was seen by a nurse in the prison, was given a 180 day prescription for

Prilosec but was denied prescriptions for Colace and pain medication, 

id. ¶ 65, (5) on December 9, 2010, plaintiff was seen by a nurse in the

prison, was prescribed the antibiotic Cipro but was denied prescriptions

for pain medication and nutritional supplements, id. ¶ 68.

Plaintiff’s Complaint also asserts a claim of denial of due process

in connection with Dr. Krisher’s June 9, 2010 directive that plaintiff

enter the prison infirmary in order to receive narcotic pain medication. 

“If the plaintiff had remained an inpatient in the Infirmary long-tern,

his prison sentence would in effect have been lengthened as the plaintiff

would have forfeited one ‘Good Day’ . . . a month while pursuing medical

treatment . . .” [and] would have in effect been volunteering for

administrative segregation. . . . .” Id., ¶¶ 89-90. The Complaint also

alleges that defendant Krisher cancelled plaintiff’s appointments with

an outside specialist, cancelled plaintiff’s prescription for the

narcotic pain medication Tramadol except upon admission to the infirmary,

cancelled plaintiff’s prescriptions for over the counter medications

Prilosec and Colace and admitted plaintiff to the infirmary for

observation, all in retaliation for plaintiff’s pursuit of administrative

grievances regarding his medical care. Id., ¶¶ 93-97. 

In support of the Motion for Summary Judgment, defendants have

submitted declarations by defendant Krisher and defendant Bethel, HCA at

RCI, and copies of plaintiff’s medical records and of a portion of

2

Plaintiff alleges that he informed the nurse that Prilosec was

unavailable in the commissary at the time and the nurse promised to inform

defendant Krisher. Complaint, ¶ 62. 

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plaintiff’s commissary purchase records.3 Submitted in connection with

the Memorandum in Opposition are additional medical records, plaintiff’s

own notes and the Affidavit of Donald R. Slattery, Doc. No. 31.

II. Summary Judgment Standard

The standard for summary judgment is well established. This

standard is found in Rule 56 of the Federal Rules of Civil Procedure,

which provides in pertinent part:

The court shall grant summary judgment if the movant

shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment

as a matter of law.

Fed. R. Civ. P. 56(a). In making this determination, the evidence must

be viewed in the light most favorable to the non-moving party. Adickes

v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Summary judgment will not

lie if the dispute about a material fact is genuine, “that is, if the

evidence is such that a reasonable jury could return a verdict for the

non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). However, summary judgment is appropriate if the opposing party

fails to make a showing sufficient to establish the existence of an

element essential to that party’s case and on which that party will bear

the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317,

322 (1986). The mere existence of a scintilla of evidence in support of

the opposing party’s position will be insufficient; there must be

evidence on which the jury could reasonably find for the opposing party. 

Anderson, 477 U.S. at 251.

The party moving for summary judgment always bears the initial

3

Defendants have failed to authenticate the records but, because

plaintiff does not challenge the authenticity of the evidence, and because no

gross miscarriage of justice will result, the Court will consider the medical

records in considering the Motion for Summary Judgment. See Johnson v. U.S.

Postal Serv., 64 F.3d 233, 237 (6th Cir. 1995).

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responsibility of informing the district court of the basis for its

motion, and identifying those portions of the record which demonstrate

the absence of a genuine issue of material fact. Catrett, 477 U.S. at

323. Once the moving party has met its initial burden, the burden then

shifts to the nonmoving party who “must set forth specific facts showing

that there is a genuine issue for trial.” Anderson, 477 U.S. at 250

(quoting former Fed. R. Civ. P. 56(e)); Talley v. Bravo Pitino

Restaurant, Ltd., 61 F.3d 1241, 1245 (6th Cir. 1995)(“[N]onmoving party

must present evidence that creates a genuine issue of material fact

making it necessary to resolve the difference at trial.”). “Once the

burden of production has so shifted, the party opposing summary judgment

cannot rest on the pleadings or merely reassert the previous allegations. 

It is not sufficient to ‘simply show that there is some metaphysical

doubt as to the material facts.’” Gover v. Speedway Super Am., LLC, 284

F.Supp.2d 858, 861-62 (S.D. Ohio 2003)(citing Matsushita Elec. Indus. Co.

v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). Instead, the non-moving

party must support the assertion that a fact is genuinely disputed. Fed.

R. Civ. P. 56(c)(1). 

In ruling on a motion for summary judgment “[a] district court is

not ... obligated to wade through and search the entire record for some

specific facts that might support the nonmoving party’s claim.” Gover,

284 F.Supp.2d at 862 (citing InteRoyal Corp. v. Sponseller, 889 F.2d 108,

111 (6th Cir. 1989)). Instead, “a court is entitled to rely, in

determining whether a genuine issue of material fact exists on a

particular issue, only upon those portions of the verified pleadings,

depositions, answers to interrogatories and admissions on file, together

with any affidavits submitted, specifically called to its attention by

the parties.” Id.; see also Fed. R. Civ. P. 56(c)(3).

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III. Eighth Amendment Claims

A. Deliberate Indifference Standard

 In an action such as this, a claim of failure to provide adequate

medical treatment requires a showing that a defendant acted with

deliberate indifference to an inmate’s serious medical need. Estelle v.

Gamble, 429 U.S. 97, 104-05 (1976). There are two parts to this

constitutional claim - one objective, one subjective. Flanory v. Bonn,

604 F.3d 249, 253 (6th Cir. 2010) (citing Farmer v. Brennan, 511 U.S.

825, 833 (1994)). To satisfy the objective component, the plaintiff must

demonstrate the existence of a sufficiently serious medical need; for the

subjective component, the plaintiff must demonstrate that the defendant

possessed a sufficiently culpable state of mind in denying medical care. 

Id. at 253-54. The United States Court of Appeals for the Sixth Circuit

has explained that a condition is “sufficiently serious” when the need

for medical care is obvious even to a lay person. Blackmore v. Kalamazoo

Cty., 390 F.3d 890, 899-900 (6th Cir. 2004). “To satisfy the subjective

component, the plaintiff must allege facts which, if true, would show

that the official being sued subjectively perceived facts from which to

infer substantial risk to the prisoner, that he did in fact draw the

inference, and that he then disregarded that risk.” Comstock v. McCrary,

273 F.3d 693, 703 (6th Cir. 2001). The requisite state of mind “entails

something more than mere negligence” but “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.

Thus, not every claimed denial of adequate medical treatment amounts

to a constitutional violation. Estelle, 429 U.S. at 105. The United

States Court of Appeals for the Sixth Circuit distinguishes “between

cases where a complaint alleges a complete denial of medical care and

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those cases where the claim is that the prisoner received inadequate

medical treatment.” Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir.

1976). Where a prisoner has received some medical attention and the

dispute is over the adequacy or course of treatment, federal courts are

generally reluctant to second guess medical judgments and to

constitutionalize claims that actually sound in state tort law. Id.; see

also Wester v. Jones, 554 F.2d 1285, 1286 (4th Cir. 1977) (“Even if the

doctor were negligent in examining [plaintiff] and in making an incorrect

diagnosis, his failure to exercise sound professional judgment would not

constitute deliberate indifference to serious medical needs.”); Hampton

v. Holmesburg Prison Officials, 546 F.2d 1077, 1081 (3d Cir. 1976)

(“Neglect, carelessness or malpractice is more properly the subject of

a tort action in the state courts.”).

Moreover, to succeed on a claim under 42 U.S.C. §1983, a plaintiff

must show the personal involvement of each defendant with respect to the

alleged constitutional violation. Liability based on a theory of

respondeat superior is not cognizable under §1983. See Turner v. City of

Taylor, 412 F.3d 629, 649 (6th Cir.2005). In order to be held liable

under §1983, a defendant with supervisory authority must have either

“encouraged the specific incident of misconduct or in some other way

directly participated in it.” Hays v. Jefferson County, Ky., 668 F.2d

869, 874 (6th Cir. 1982). “At a minimum a plaintiff must show that the

official at least implicitly authorized, approved, or knowingly

acquiesced in the unconstitutional conduct of the offending officers.”

Id.; see also Combs v. Wilkinson, 315 F.3d 548, 558 (6th Cir. 2002)

(“Supervisory liability under §1983 cannot be based upon a mere failure

to act but must be based upon active unconstitutional behavior.”).

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B. Deliberate Indifference Claims Against Defendants Mohr, Eddy,

Jeffries and Bethel

Defendants Mohr, Eddy and Jeffries urge summary judgment in their

favor because plaintiff cannot show their personal involvement with

respect to the alleged constitutional violations. Defendant Bethel does

not argue that summary judgment is appropriate in her favor on the same

basis, but plaintiff’s Memorandum in Opposition makes it clear that the

claims against her rest on the same theory as the claims against

defendants Mohr, Eddy, and Jeffries: Plaintiff concedes that

“[d]efendants Mohr, Eddy, Warden Jeffries, and Bethel did not commit the

constitutional violations” but he seeks to hold these defendants liable

because “they failed to correct them in the course of their supervisory

responsibilities, and affirmed the actions of Defendant Detillon and Dr.

Krisher following their investigations of the alleged conduct.” 

Memorandum in Opposition, Doc. No. 30, pp. 27-28.

Specifically, plaintiff’s claims against defendants Mohr and Eddy

are based primarily on the allegation that “[d]efendants Mohr and Dr.

Eddy are responsible for the creation and implementation of th[e] policy”

regarding the provision of health care to prisoners. Complaint, ¶ 75. 

Plaintiff’s claims against defendant Jeffries are based primarily on the

allegation that plaintiff’s family members wrote to defendant Jeffries,

“advis[ed] him that the plaintiff’s family felt that he was receiving

inadequate medical care . . . and asked that Mr. Jeffries intercede.” 

Id. ¶ 60. Plaintiff’s claims against defendant Bethel concern three

informal complaint resolutions that plaintiff filed with her “requesting

assistance in having his Tramadol prescription renewed,” “requesting

assistance in having his prescriptions for Prilosec and Colace renewed,”

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and “requesting assistance in receiving health care from a G.I.

specialist.” Id. ¶¶ 53, 57, 58. Plaintiff further alleges several

failures “to amend existing policies and procedures,” failures “to

implement a quality assurance program,” and failures to prevent

inadequate care from prison medical personnel. Id. ¶¶ 99-106, 109.

To the extent that plaintiff seeks injunctive relief in his claims

against defendant Jeffries, defendant Bethel, defendant Detillon, and

defendant Krisher, these claims are now moot: All of these defendants

are employees of RCI and no longer have the authority to issue such

relief to plaintiff, who is currently incarcerated at MCI. See Kensu v.

Haigh, 87 F.3d 172, 175 (6th Cir. 1996).

Furthermore, prison administrators’ “denial of [a plaintiff’s]

administrative grievances and their failure to remedy the alleged

[unconstitutional] behavior” does not amount to a constitutional

violation. Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). 

Because plaintiff does not allege that defendants Mohr, Eddy, Jeffries

and Bethel participated directly in his medical care, and because

plaintiff appears to base his claims against these defendants on their

supervisory roles or on their failures to remedy allegedly deficient

medical treatment, summary judgment in favor of these defendants is

appropriate.

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C. Deliberate Indifference Claims Against Defendants Detillon and

Krisher

The remaining named defendants argue that summary judgment in their

favor is appropriate because plaintiff cannot show that they were

deliberately indifferent to a serious medical need. The Court will deal

with the claims against each defendant in turn.

(1) Deliberate Indifference Claims Against Defendant

Detillon

Plaintiff’s only allegation regarding defendant Detillon is that

this defendant “denied or delayed access to the plaintiff’s prescribed

nutritional supplements of liquid Ensure.” Complaint, Doc. No. 3, ¶ 77;

see also id. ¶ 43 (alleging that defendant Detillon “arranged for her

superiors to cancel the plaintiff’s prescriptions”); Memorandum in

Opposition, Doc. No. 30, p.8. As a preliminary matter, plaintiff never

expressly alleges that defendant Detillon knew about and disregarded any

risk to plaintiff’s health. Instead, he acknowledges that she

articulated a medical basis for her denial: “Ms. Detillon’s reasoning

was that the plaintiff weighed too much to receive Ensure . . . [as a]

nutritional supplement[].” Complaint, Doc. No. 3, ¶ 43; see also

Defendants’ Exhibit C, Doc. No. 27-3. Plaintiff further alleges that

defendant Detillon “informed the plaintiff that she had never heard of

tap water, beef, pork, soy, milk, dairy product, or ruffage [sic]

aggravating C.D., and that the plaintiff should be eating these foods as

they are served in the cafeteria as part of his regular diet” and that

she did not advise him to make any dietary modifications. Complaint, ¶

43. Plaintiff’s allegation represents a difference of opinion as to the

appropriate care of plaintiff’s conditions rather than an allegation that

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defendant Detillon “subjectively perceived facts from which to infer

substantial risk to the prisoner, that [s]he did in fact draw the

inference, and that [s]he then disregarded that risk.” Comstock, 273

F.3d at 703; see also Williams v. Hartz, 43 F. App’x 964, 966 (7th Cir.

2002) (“In any event Williams has offered no evidence that Hartz's

refusal to place Williams on a special diet reflected a conscious

disregard to his well being”). Summary judgment in favor of defendant

Detillon is therefore appropriate .

(2) Deliberate Indifference Claims Against Defendant Krisher

As articulated in plaintiff’s response to the Motion for Summary

Judgment, his three general allegations against defendant Krisher are

that this defendant “[p]ursu[ed] the same course of treatment despite

repeated reports of worsening symptoms,” did not allow plaintiff to see

a gastroenterologist after May 2009, and “allowed [only] . . . the

medications Azathioprine and Mesalamine.” Memorandum in Opposition, Doc.

No. 30, p.13. However, plaintiff’s own verified Complaint contradicts

the first and third of these general allegations. Plaintiff alleges in

the Complaint that he was seen by defendant Krisher on three occasions,

that the prescriptions following from each occasion were not identical,

and that defendant Krisher prescribed medications other than Azathioprine

and Mesalamine. Complaint, ¶ 50 (alleging that in March 2010 defendant

Krisher “extended the plaintiff’s prescriptions for Prilosec, Docusate,

Asacol, Imuran, and Tramadol”), ¶ 59 (alleging that in September 2010

defendant Krisher admitted plaintiff to the infirmary, prescribed “two

Prilosec tablets daily . . . for fourteen days, and Tramadol 100 mg three

times daily for the duration of the plaintiff’s Infirmary admission”),

¶¶ 68-71 (alleging that, between January 11 to 14, 2011, plaintiff was

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seen by defendant Krisher, admitted to the infirmary, given Asacol,

Azathioprine, Tylenol, and Zantac, and discharged with prescriptions for

Tylenol, Zantac, and a fiber laxative, in addition to an existing

prescription for Azathioprine).

Plaintiff’s specific allegations in response to the Motion for

Summary Judgment suggest that his real concern is with defendant

Krisher’s cancellation of his appointments with a specialist and the

alleged denial of prescriptions for Tramadol, Colace, Prilosec, and the

nutritional supplement Ensure. Memorandum in Opposition, Doc. No. 30,

pp. 8-9 (concerning the nutritional supplement Ensure), 14-19 (concerning

the prescription of Tramadol), 19-22 (concerning the prescription of

Colace and Prilosec). In other words, plaintiff does not allege that he

was denied a request to be seen by medical professionals within the

prison. Instead, he is concerned with the denial of opportunities to be

seen by an outside specialist and with the denial or cancellation of 

prescriptions. This Court rejects plaintiff’s contention that these (and

minor incidents noted in the Complaint but not raised in the Memorandum

in Opposition) amount to deliberate indifference on the part of defendant

Krisher.

Regarding the cancellation of his appointments with Dr. Levine,

plaintiff does not have an Eighth Amendment right to see the doctor of

his choice. See Patterson v. Epp, No. 85-1512, 1985 WL 13864, *1 (6th

Cir. Oct. 15, 1985)(“Although the plaintiff may have preferred treatment

at the hospital by a particular physician, the district court did not err

in concluding the defendant’s decision to treat the wound within the

prison medical center did not constitute cruel and unusual punishment.”). 

Here, where plaintiff alleges that his symptoms were treated by defendant

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Krisher on three occasions from March 2010 to January 2011 and by prison

nurses on five additional occasions from July 2009 to January 2011,

defendant Krisher’s decision to treat plaintiff within the prison does

not amount to an Eighth Amendment violation. That plaintiff’s

allegations in this regard do not rise to the level of a constitutional

violation is particularly clear in light of the fact that plaintiff’s

allegations address the method by which he received Tramadol, Prilosec

and Colace, not with the absence of treatment.

Regarding plaintiff’s access to Tramadol, plaintiff does not have

an Eighth Amendment right to the pain medication of his choice and he

certainly does not have a right to receive such pain medication in

precisely the manner he chooses. See Thomas v. Coble, 55 F. App’x 748,

749 (6th Cir. 2003) (holding that plaintiff and defendant “clearly

disagreed over the preferred medication to treat [defendant]’s pain” but

that “this difference of opinion does not support an Eighth Amendment

claim”). Here, where defendant placed restrictions on plaintiff’s

receipt of Tramadol but allowed him to receive it upon admission to the

infirmary, as he did in September 2010, plaintiff cannot show an Eighth

Amendment violation. Plaintiff alleges that he was denied Tramadol

during an infirmary admission on only one occasion, i.e., the visit in

January 2011; to the extent that plaintiff objects to the denial of

Tramadol during this visit, he fails to demonstrate an Eighth Amendment

violation. Plaintiff does not allege that he was denied treatment or

medication; rather he alleges that he received prescriptions for Tylenol

in addition to Asacol, Azathioprine, Zantac, and a fiber laxative, all

of which were intended to treat his symptoms. Complaint, Doc. No. 3, ¶¶

68-71. At most, plaintiff states a claim for negligence, which is not

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actionable under the Eighth Amendment to the United States Constitution. 

See Farmer, 511 U.S. at 835.

Plaintiff also complains that he was required to purchase the over

the counter medications Prilosec and Colace. This requirement was

apparently imposed in conformity with a policy of the ODRC by which “nonprescription, over the counter medication and personal care items [are

available] for inmates to purchase through each institutional

commissary.” Defendants’ Exhibit 27-25, Doc. No. 27. Plaintiff does not

have an Eighth Amendment right to receive free medical care regardless

of his financial circumstances. Reynolds v. Wagner, 128 F.3d 166, 174

(3d Cir. 1997) (“If a prisoner is able to pay for medical care, requiring

such payment is not ‘deliberate indifference to serious medical

needs.’”). Plaintiff has not established that he has been denied needed

medical care because he could not afford to purchase Colace and Prilosec

in the prison commissary during the relevant time. Although plaintiff

alleges that he “has no guaranteed monthly income, and is considered

indigent,”4 Complaint, Doc. No. 3, ¶ 83, and that purchasing medication

“would not have left enough money on [his] account for [him] to purchase

necessary hygiene items such as soap and other essentials and nutritional

supplements such as multivitamins,” id., ¶ 64, defendants have offered

evidence that plaintiff’s purchases at the prison commissary include such

items as sugar cubes, cookies, candy, potato chips and pop. Defendants’

Exhibit Z, Doc. No. 27-26. See also Plaintiff’s Exhibit 30-1, p. 28

4

Plaintiff states in his Memorandum in Opposition that "he receives []

$10.00 per month as State Pay as guaranteed monthly income." Memorandum in

Opposition, Doc. No. 30, p.20. In his affidavit in support of his

Application and Affidavit by Incarcerated Person to Proceed without Prepayment

of Fees, Doc. No. 1, plaintiff avers that he receives $13.50 per month. He

also indicated that he had received monetary gifts from family members, but

that such gifts are not guaranteed. Id.

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(“Nutrition Note: . . . Commissary purchases [are] cheese danishes, ice

cream, peanut butter, chips, brownies, cookies, honey buns, chili &

coffee”).5 Requiring plaintiff to be selective in his purchases does not

amount to an Eighth Amendment violation. See Reynolds, 128 F.3d at 174.

Finally, the allegations in the Complaint do not support plaintiff’s

contentions regarding a denial of access to over the counter medications

Colace and Prilosec. Plaintiff alleges that neither was available on

October 26, 2010, but he does not allege that this fact prevented him

from taking the medicine: Plaintiff alleges that on October 20, 2010,

he received a 30-day prescription of Prilosec and a 180-day prescription

of Colace and that when his prescription for Colace was cancelled on

October 28, 2010, the nurse gave him “until 11/29/10 to purchase.” 

Complaint, Doc. No. 3, ¶ 62. He does not allege that either Colace or

Prilosec was unavailable after this date. In fact, he alleges that, on

November 16, 2010, he received another 180-day prescription for Prilosec

which, according to the Complaint, continued until it was cancelled in

favor of Zantac on January 12, 2011. Id. ¶¶ 65, 69.

Summary judgment in favor of defendant Krisher on plaintiff’s Eighth

Amendment claim is therefore appropriate.

IV. Due Process and Retaliation Claims6

5

In his Memorandum in Opposition, which is unverified and which

therefore does not constitute admissible evidence, plaintiff offers a curious

explanation for these purchases: he “has purchased food items from the

commissary that are contradictory to his prescribed diet” because he “is

regularly forced to borrow heartburn medication and stool softeners or

laxatives” and is then “forced to purchase whatever the other inmates want in

return.” Id., Doc. No. 30, p. 22.

6

Plaintiff notes that defendants failed to address these claims in the

Motion for Summary Judgment. Memorandum in Opposition, Doc. No. 30, p. 6. 

The Court notes that the Initial Screen of the Complaint, Doc. No. 4,

addressed only plaintiff’s Eighth Amendment denial of medical care claims.

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Plaintiff also asserts a due process claim in connection with

defendant Krisher’s conditioning plaintiff’s receipt of prescription

narcotic pain medication on his admission into the infirmary. However,

prisoners have no constitutionally protected liberty interest in

receiving their medical care in the location of their choice or in

remaining either in the general population or free of administrative

segregation. See Sandin v. Conner, 515 U.S. 472 (1995). Plaintiff’s due

process claim against defendant Krisher cannot, therefore, prevail. 

Plaintiff’s retaliation claims against defendant Krisher are

likewise without merit. A claim of retaliation cannot proceed if the

defendant’s actions would not have been different even absent the

plaintiff’s protected conduct. Thaddeus-X v. Blatter, 175 F.3d 378,

400(6th Cir. 1999) (en banc). As the Court concluded supra, the actions

about which plaintiff complains, i.e., the termination of prescribed

Ensure, the decision to treat plaintiff’s conditions within the prison,

the limitations on plaintiff’s access to narcotic pain medications and

the requirement that plaintiff purchase over the counter medications from

the prison commissary, were actions that were either medically justified

or medically indicated or were required by official policy. Defendant

Krisher is entitled to judgment on these claims as well.

V. Qualified Immunity

In light of this Court’s conclusion that plaintiff has failed to

establish a violation of his constitutional rights, the Court need not

and does not address defendants’ arguments regarding qualified immunity. 

Pearson v. Callahan, 555 U.S. 223 (2009); Saucier v. Katz, 533 U.S. 194

(2001).

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It is RECOMMENDED that defendants’ Motion for Summary Judgment, Doc.

No. 27, be GRANTED.

If any party seeks review by the District Judge of this Report and

Recommendation, that party may, within fourteen (14) days, file and serve

on all parties objections to the Report and Recommendation, specifically

designating this Report and Recommendation, and the part thereof in

question, as well as the basis for objection thereto. 28 U.S.C.

§636(b)(1); Fed. R. Civ. P. 72(b). Response to objections must be filed

within fourteen (14) days after being served with a copy thereof. 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 of the right to appeal the decision of

the District Court adopting the Report and Recommendation. See Thomas v.

Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of Teachers, Local 231,

829 F.2d 1370 (6th Cir. 1987); United States v. Walters, 638 F.2d 947

(6th Cir. 1981).

 

July 17, 2012 s/Norah McCann King 

 Norah McCann King

 United States Magistrate Judge

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