ERNELL HAILES, 

Plaintiff, 

v. 

CORBY FREE, et a/. 

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

Civil Action 2:12-cv-00687 

Judge Michael H. Watson 

Magistrate Judge Elizabeth P. Deavers 

Defendants. 

ORDER 

Plaintiff proceeds in forma pauperis and without the assistance of counsel in this 

28 U.S.C. § 1983 prisoner civil rights action. Plaintiff asserts claims against Defendants 

Mr. Elam and Mr. Collier for retaliation on the basis of religion in violation of the First 

Amendment to the United States Constitution. Plaintiff also asserts a claim against 

Defendant Elam for deprivation of property in violation of the Fourteenth Amendment. 

Additionally, Plaintiff asserts claims against Defendants Dr. Krisher, Mr. Artrip and Ms. 

Carter for deliberate indifference toward his serious medical needs in violation of the 

Eighth Amendment. Plaintiff also asserts a claim against Defendant Corby Free for 

deliberate indifference toward Plaintiff's prison grievances, and for violation of his 

Fourteenth Amendment right to equal protection. This matter is before the Court for 

consideration of the September 24, 2012 Report and Recommendation of the 

Magistrate Judge. (ECF No.6.) After conducting an initial screen pursuant to 28 

U.S.C. § 1915(e), the Magistrate Judge recommended dismissal of all of Plaintiff's 

claims except his claims against Defendants Elam and Collier for retaliation. Plaintiff 

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filed his Objections to the Report and Recommendation on October 11, 2012. (ECF 

No. 12.) For the reasons that follow, Plaintiff's Objections are OVERRULED. The 

Report and Recommendation of the Magistrate Judge is ADOPTED. Plaintiff may 

proceed with his claims against Mr. Elam and Mr. Collier for retaliation in violation of the 

First Amendment to the United States Constitution. Plaintiff's remaining claims against 

Defendants Elam, Krisher, Artrip, Carter and Free are DISMISSED. Additionally, 

Plaintiff's Request for Leave to Amend his Complaint is DENIED. (ECF No. 12.) 

I. STANDARD OF REVIEW 

The Magistrate Judge set forth the standard governing initial screens pursuant to 

28 § U.S.C. 1915(e) in her Report and Recommendation. (Report and 

Recommendation 5-6, ECF No. 6.) Finding it unnecessary to repeat that familiar 

standard here, the Court adopts the standard contained in the Report and 

Recommendation. 

II. ANALYSIS 

Plaintiff has failed to state a claim upon which relief may be granted with respect 

to his claims against (1) Defendant Elam for deprivation of property; (2) Defendants 

Krisher, Artrip and Carter with respect to deliberate indifference toward serious medical 

needs; (3) Defendant Free for deliberate indifference toward Plaintiff's prison 

grievances; and (4) Defendant Free for violation of Plaintiff's right to equal protection. 

A. Plaintiff's Claim Against Elam for Deprivation of Property 

Plaintiff has failed to state a claim upon which relief may be granted against 

Defendant Elam for deprivation of property. In his Complaint, Plaintiff alleges that 

Defendant Elam, after sending Plaintiff to isolation, failed to follow prison policy in 

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collecting Plaintiff's personal belongings. As a result, Plaintiff alleges, other inmates 

stole Plaintiff's property. 

The Magistrate Judge recommended dismissal of Plaintiff's deprivation of 

property claim for failure to state a claim upon which relief may be granted. Plaintiff has 

not objected to that portion of the Magistrate Judge's Report and Recommendation. 

See Robert v. Tesson, 507 F.3d 981, 984 (6th Cir. 2007) (holding that review of issues 

not raised in an objection is waived). The Report and Recommendation of the 

Magistrate Judge with regard to Plaintiff's deprivation of property claim is ADOPTED. 

Plaintiff's claim against Defendant Elam for deprivation of property is DISMISSED. 

B. Plaintiff's Claims Against Krisher, Artrip and Carter for Deliberate 

Indifference 

Plaintiff has also failed to state a claim upon which relief may be granted against 

Defendants Krisher, Artrip and Carter for deliberate indifference toward Plaintiff's 

serious medical needs. Plaintiff alleges that one of his legs is three-eighths of an inch 

shorter than the other. He also alleges that he has undergone surgeries in the past, 

and that he has a prosthetic elbow and hip. As a result, Plaintiff alleges that he 

experiences chronic pain and difficulty ambulating to the cafeteria and climbing to the 

top-bunk. 

Plaintiff alleges that Dr. Krisher acted with deliberate indifference toward 

Plaintiff's serious medical needs. He first challenges Dr. Krisher's qualifications, noting 

that he "is only a licensed surgeon," and thus ill-equipped to treat the conditions from 

which Plaintiff suffers. (Compl. 9 at 1J9, ECF No.3.) Also, Dr. Krisher purportedly 

advised Plaintiff to purchase Tylenol from the commissary to manage his pain. Plaintiff 

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further alleges that Dr. Krisher acts in a manner "unbecoming of a professional health 

care provider." (/d.) Specifically, Plaintiff alleges that Dr. Krisher has yelled at him, and 

told him he would just have to deal with his pain until he was able to purchase Tylenol 

from the commissary. 

Plaintiff also alleges that Defendants Artrip and Carter, both nurse practitioners, 

deceived Plaintiff into believing they were doctors. Additionally, during a medical visit 

Dr. Artrip informed Plaintiff that he would schedule an appointment for Plaintiff to be 

measured for a shoe-lift. As of the date of filing his Complaint, Plaintiff alleges that he 

has not been measured for the lift. Plaintiff further alleges that Defendant Carter 

previously ordered a shoe-lift, but later retracted the order due to budget cuts and 

because of undue influence from Dr. Krisher. 

As the Magistrate Judge correctly noted, to succeed on a claim for deliberate 

indifference toward serious medical needs in violation of the Eighth Amendment, an 

inmate must satisfy both an objective and a subjective component. Phillips v. Roane 

Cnty., Tenn., 534 F.3d 531, 539 (6th Cir. 2008). The objective component requires a 

plaintiff to show the existence of a "sufficiently serious" medical need. /d. (citing Farmer 

v. Brennan, 511 U.S. 825, 834 (1994)). "Where the seriousness of a prisoner's needs 

for medical care is obvious even to a lay person, the constitutional violation may arise." 

Blackmore v. Kalamazoo County, 390 F.3d 890, 899 (6th Cir. 2004); see also Phillips, 

534 F.3d at 539-40 ("[W]here a plaintiff's claims arise from an injury so obvious that 

even a layperson would easily recognize the necessity for a doctor's attention ... it is 

sufficient to show that he actually experienced the need for medical treatment, and that 

the need was not addressed within a reasonable time frame.") (internal quotation marks 

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omitted). The subjective component requires a plaintiff to "'allege facts which, if true, 

would show that the official being sued subjectively perceived facts from which to infer a 

substantial risk to the prisoner, that he did draw that inference, and that he then 

disregarded that risk."' Phillips, 534 F.3d at 540 (quoting Comstock v. McCrary, 273 

F.3d 693, 703 (6th Cir. 2001)). The subjective component "'is meant to prevent the 

constitutionalization of medical malpractice claims."' /d. (quoting Farmer, 511 U.S. at 

836). Deliberate indifference in this context is equivalent to a reckless disregard of a 

substantial risk of serious harm to the prisoner. /d. "[A] difference of opinion between 

[an inmate] and the prison health care provider and a dispute over the adequacy of [an 

inmate's] treatment ... does not amount to an Eighth Amendment claim." Apanovitch 

v. Wilkinson, 32 Fed. App'x 704, 707 (6th Cir. 2002). 

Here, Plaintiff has failed to allege facts sufficient to state a claim with respect to 

both the objective and the subjective components. 1 Objectively, the facts contained in 

Plaintiff's Complaint do not indicate that he suffers from a medical need that is 

"sufficiently serious" to trigger the Eighth Amendment. Phillips, 534 F.3d at 539. 

Plaintiff generally alleges that he suffers from pain related to past surgeries, and that he 

experiences difficulty ambulating because of the condition of his legs. Plaintiff provides 

no facts, however, that indicate his condition rises to the level of a serious medical 

need, much less one that even a layperson would recognize. Nor does Plaintiff's 

allegation that he should have been examined by a more qualified health professional 

1 The Magistrate Judge also concluded that Plaintiff failed to meet both prongs of 

the deliberate-indifference test. Plaintiff's Objection to the Magistrate Judge's Report 

and Recommendation essentially reiterates the facts alleged in his Complaint. 

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establish the objective component of a deliberate indifference claim. Plaintiff's 

allegations do not demonstrate an objective need for professionals more qualified than 

two nurse practitioners and a surgeon. 

Even if Plaintiff had alleged fact sufficient to indicate the existence of an 

objectively serious medical need, his claim would nevertheless fail because he has not 

alleged facts sufficient to meet the subjective component of a deliberate indifference 

claim. First, Plaintiff does not allege that he was completely denied care. Rather, he 

alleges disagreement with the care that he received. 2 Specifically, Plaintiff disagrees 

with Dr. Krisher's advice to purchase Tylenol from the commissary for pain 

management. (Compl. 9 at 1[10, ECF No.3; Obj. 3, ECF No. 12.) Plaintiff further 

disagrees with prison officials' delay in ordering a shoe-lift. (Compl. 9 at 1J 8, ECF No. 

9, Obj. 3, ECF No. 12.) In his Objection, Plaintiff expresses further discontent with Dr. 

Krisher's refusal to prescribe light-duty detail and a bottom-bunk, as well as Defendant 

Artrip's refusal to order further x-rays. (Obj. 7, 2, ECF No. 12.) A disagreement over 

diagnosis or treatment, including the need for x-rays, does not amount to deliberate 

2 In his Objection to the Report and Recommendation, Plaintiff argues that prison 

officials' refusal to provide a lower bunk, pain medicine, and light duty restrictions 

amounts to a complete denial of care. (Pl.'s Obj. 7, ECF No. 12.) The Court disagrees. 

In his Complaint, Plaintiff alleges that he has seen Dr. Krisher, Nurse Practitioner Artrip 

and Nurse Practitioner Carter on multiple occasions during his incarceration. (Compl. 

8-9 at 1l1f3, 7, 9, ECF No.3.) He also concedes that Dr. Krisher performed a medical 

examination of his injuries, though he characterizes the exam as "perfunctory." (/d. 9 at 

1[11.) Additionally, Plaintiff acknowledges that Defendant Carter performed a 

"thorough" examination of his injuries, during which she measured the irregularities in 

his legs, noted that Plaintiff has a prosthetic elbow and hip, and ordered Plaintiff a 

shoe-lift. (/d. 8 at 1[3.) The foregoing allegations demonstrate that Plaintiff has not 

been denied care. Rather, these facts confirm that Plaintiff is simply unhappy with the 

care he received. 

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indifference. See Wyatt v. Hart, 201 F.3d 442, 442 (6th Cir. 1999) (noting that a 

"disagreement ... over the need for X-rays does not rise to the level of evidence of 

deliberate indifference"). Although disagreements with prison medical staff might give 

rise to a state-law medical malpractice claim-and the Court makes no determination 

whatsoever that they do here-they do not implicate the Eighth Amendment to the 

United States Constitution. Apanovitch, 32 Fed. App'x at 707. 

Second, Plaintiff has not alleged facts indicating that prison medical staff 

subjectively perceived facts from which to infer a substantial risk to Plaintiff's health, 

that they did draw that inference, and that they disregarded that risk. Phillips, 534 F.3d 

at 540. Nothing in Plaintiff's Complaint, nor in his Objection to the Report and 

Recommendation, indicates that prison medical staff acted with reckless disregard to 

Plaintiff's condition. 

Accordingly, Plaintiff has failed to state a claim upon which relief may be granted 

with respect to his claim of deliberate indifference against Defendants Krisher, Carter 

and Artrip. The Report and Recommendation of the Magistrate Judge is ADOPTED. 

Plaintiff's claims against these Defendants are DISMISSED. 

C. Plaintiff's Claim Against Defendant Free for Deliberate Indifference to 

Grievances 

Plaintiff has also failed to state a claim upon which relief may be granted against 

Defendant Free for deliberate indifference toward Plaintiff's prison grievances. Plaintiff 

alleges that Defendant Free acts with bias toward prison staff when addressing prisoner 

grievances, and that he customarily decides grievances in favor of prison officials. 

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The Magistrate Judge was correct to point out that prisoners do not have a 

constitutional right to prison grievances. Argue v. Hofmeyer, 80 Fed. App'x 427, 430 

(6th Cir. 2003) (citing Hewitt v. Helms, 450 U.S. 460, 467 (1983)); see also Keenan v. 

Marker, 23 Fed. App'x 405, 407 (6th Cir. 2001) ("[T]here is no inherent constitutional 

right to an effective prison grievance procedure.") (citation omitted). Thus, any 

deliberate indifference relating to the prison-grievance process falls outside of the 

protections of the United States Constitution, and therefore outside of the scope 28 

U.S.C. § 1983. See Walkerv. Mich. Dept. ofCorr., 128 Fed. App'x441, 445 (6th Cir. 

2005) ("[A] violation of a constitutional right is required in order to obtain relief under § 

1983 .... "). 

In any event, Plaintiff's arguments contained in his Objection are without merit. 

Plaintiff argues that he must have a constitutionally protected liberty interest in the 

prison grievance process because the whole point of the process is to protect 

constitutional rights. (Obj. 4, ECF No. 12.) But the United States Supreme Court and 

the Sixth Circuit have repeatedly held that proposition to be false. Hewitt, 450 U.S. at 

467; Argue, 80 Fed. App'x at 430; Keenan, 23 Fed. App'x at 407. Inmates possess no 

liberty interest in the prison grievance process. Plaintiff next argues that it would violate 

the Constitution if prison officials, for the purpose of preventing inmates from accessing 

the courts, designed a grievance process with which inmates could not possibly comply. 

(Obj. 5, ECF No. 12.) Whether or not Plaintiff is correct, he has not alleged facts 

suggesting that such a situation exists here. Indeed, as this case demonstrates, the 

prison grievance procedure Plaintiff utilized has not prevented his access to the courts. 

Accordingly, the Report and Recommendation of the Magistrate Judge is ADOPTED. 

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Plaintiff has failed to state a claim upon which relief may be granted with regard to his 

deliberate indifference claim against Defendant Free. His claim is, therefore, 

DISMISSED. 

D. Plaintiff's Claim Against Free for Equal Protection Violation 

Plaintiff has also failed to state a claim upon which relief may be granted against 

Defendant Free for violating his Fourteenth Amendment right to equal protection. 

Plaintiff alleges that Free violated his right to equal protection because Free acts with 

bias toward prison officials and routinely decides grievances in favor of prison staff. 

The Magistrate Judge recommended dismissal of Plaintiff's equal protection claim for 

failure to state a claim. Plaintiff did not raise an objection to that portion of the 

Magistrate Judge's Report and Recommendation. The Court, therefore, ADOPTS the 

Magistrate Judge's analysis in this regard. Plaintiff's equal protection claim is 

DISMISSED for failure to state a claim. 

Ill. Plaintiff's Reference to Fussell v. Wilkinson and 

Plaintiff's Request for Leave to Amend Complaint 

A. Fussell v. Wilkinson 

The Court finds Plaintiff's reference to Fussell v. Wilkinson irrelevant to its 

analysis in this case. Plaintiff discusses Fussell v. Wilkinson, No. 1 :03-cv-704, 2005 

WL 3132321 (S.D. Ohio Nov. 22, 2005) in his Objection to the Magistrate Judge's 

Report and Recommendation. (Obj. 1-2, ECF No. 12.) In Fussell, the Court approved 

a settlement between a class of Ohio inmates and the Ohio Department of 

Rehabilitation and Correction ("ODRC"). Along with his Objection to the Report and 

Recommendation, Plaintiff attached a Motion for Extension of Stipulation for Injunctive 

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Relief that was recently filed in the Fussell case. (/d. at Ex. 2, ECF No. 12-2.) In that 

motion, the plaintiffs' counsel alleges that, despite the settlement, system-wide 

problems still exist in the ODRC. Plaintiff argues that the deficiencies identified in the 

motion caused the injuries he complains of in his Complaint. 

Fussell is unrelated and thus irrelevant to this case. The fact that a class of 

plaintiffs allege that problems exist in ODRC has no bearing on whether the Defendants 

named in Plaintiff's Complaint committed constitutional violations against Plaintiff. Put 

another way, Plaintiff cannot rely on unrelated factual allegations contained in an 

unrelated case to state a claim upon which relief may be granted. Rather, Plaintiff must 

allege that he, the pleader, is entitled to relief because of actions that Defendants 

committed. Fed. R. Civ. P. 8(a). He has not done so here with regard to the claims 

discussed above. Those claims are, therefore, dismissed. 

B. Plaintiff's Request for Leave to Amend Complaint 

In an effort to avoid dismissal of the claims discussed above, Plaintiff requests 

leave to amend his Complaint to cure the defects contained therein. (Obj. 9, ECF No. 

12.) Plaintiff's Motion is DENIED. See McGore v. Wrigglesworth, 114 F.3d 601, 612 

(6th Cir. 1997) ("Under the [PLRA], courts have no discretion in permitting a plaintiff to 

amend a complaint to avoid a sua sponte dismissal.") (overruled on other grounds); see 

also Bright v. Thompson, 467 Fed. App'x 462, 464 (6th Cir. 2012) (noting that, in 

dismissing a prisoner's complaint for failure to state a claim pursuant to§ 1915(e)(2), 

the court must do so "without first affording a plaintiff leave to amend"). 

IV. CONCLUSION 

Accordingly, Plaintiff's Objections to the Report and Recommendation of the 

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., 

Magistrate Judge are OVERRULED. The Report and Recommendation is ADOPTED. 

(ECF No.6.) At this juncture, Plaintiff may proceed on his claims against Defendants 

Elam and Collier for retaliation. The remainder of Plaintiff's claims are DISMISSED. 

Plaintiff's request for leave to amend his Complaint is DENIED. 

IT IS SO ORDERED. 

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