UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

CLAUDE SPENCER,

Plaintiff,

 Civil Action 2:12-cv-1050

v. Judge George C. Smith

 Magistrate Judge Deavers

GARY MOHR, et al.,

Defendants.

ORDER

Plaintiff, Claude Spencer, a state inmate who is proceeding without the assistance of

counsel, brings this action under 42 U.S.C. § 1983, alleging that Defendants were deliberately

indifferent to his serious medical needs in violation of the Eighth Amendment.1 This matter is

before the Court for consideration of the December 18, 2012 Report and Recommendation of the

United States Magistrate Judge (ECF No. 4) and Plaintiff’s Objections to the Report and

Recommendation (ECF No. 6). For the reasons that follow, Plaintiff’s Objections are

OVERRULED, the Report and Recommendation is ADOPTED, and this action is

DISMISSED for failure to state claim upon which relief can be granted pursuant to 28 U.S.C. §

1915(e)(2). 

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Plaintiff names the following as Defendants: Gary Mohr, the Director of the Ohio

Department of Rehabilitation and Corrections; unnamed warden of Hocking Correctional

Institute; Nurse Blosser; Dr. John Nduagaba; and Martin Akusoba. 

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I.

On December 18, 2012, in connection with her initial screen of Plaintiff’s Complaint

under 28 U.S.C. §§ 1915(e)(2) and 1915A, the Magistrate Judge issued a Report and

Recommendation, recommending that the Court dismiss Plaintiff’s action for failure to state a

claim under § 1915(e)(2). (ECF No. 4.) The Magistrate Judge summarized Plaintiff’s

Complaint and its exhibits as follows: 

 According to the Complaint, Plaintiff fell out of his bed in January 2006,

sustaining injuries to his head, neck, shoulder, and forearm. Since this incident,

he has experienced “black outs and constant pain.” (Compl. 2, ECF No. 1-2.) 

In a June 2010 Informal Complaint Resolution, Plaintiff indicated that as a

result of the 2006 incident, he experiences headaches and arthritis pain and needs

Ibuprofen to treat these symptoms. He complained that the nurse practitioner had

refused to renew his prescription for Ibuprofen on the grounds that he could

purchase that pain medication from the commissary. (June 26, 2010 ICR, ECF

No. 1-3 at Ex. 25.) Plaintiff raised this complaint again in a April 2011 Informal

Complaint Resolution, this time seeking a prescription for Ibuprofen and muscle

relaxants. In denying his request, the prison healthcare assistant noted that per

prison policy, inmates are required to purchase medications such as Ibuprofen at

the commissary and that muscle relaxants would not help the arthritis pain he

experienced. (April 15, 2011 ICR, ECF No. 1-3 at Ex. 27.) Plaintiff escalated

this Complaint to a grievance, which was affirmed. (ECF Nos. 29 and 31.) The

Assistant Chief Inspector (Medical), Nurse Parks, denied his subsequent appeal

on June 7, 2011. (June 7, 2011 Dec. of Chief Insp., ECF No. 1-3 at Ex. 32.) In

addition to reviewing Plaintiff’s grievance history, Nurse Park’s investigation

included a review of Plaintiff’s medical file and recent history of commissary

purchases. In denying Plaintiff’s grievance, Nurse Parks noted as follows: 

 

I note that [you] are being followed in CCC for elevated

lipids, hypertension and hypothyroidism, last being seen on 4-6-11. 

You had ear surgery 8-3-09 due to “chronic otitis medical with

effusion, conductive hearing loss” to your left ear and surgeons

performed a left tympansostomy tube insertion. The surgeon noted

that you voiced a “history of lifelong Eustachian tube dysfunction on

left side.” I find an x-ray of your left foot dated 7-9-09 that shows a

“small chronic heel spur.” On 9-18-09 an x-ray of your right

shoulder shows “moderate degenerative changes to the AC joint.” I

have reviewed your commissary purchases for the past 90 days and

find that you spent $682.90. I find that during that time you

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purchased one container (100 tabs) of Ibuprofen 200mg. But with the

CCC concerns that are noted above I find that there are numerous

items that are not appropriate. I note 61 cans of soft drinks; 16 pkgs

of coffee; 13-12oz pkgs of sugar; 5 jars of jelly; 4 pounds of cheese;

8 pints of ice cream; 102 pkgs of Ramen noodles; 77 pkgs of various

summer sausages; 33 pkgs crackers/popcorn; and 99 pkgs of

pastry/cookie items. All of these items, if you are eating them are

contraindicated in your diet. The medical staff is treating you per

current ODRC policy and Bureau of Medical Services guidelines. 

See Nurse Sick Call for further concerns. 

(Id.) 

Plaintiff filed the instant action on November 14, 2012. Referencing the

informal complaints and grievances outlined above, he asserts that Defendants

were deliberately indifferent to his medical needs. 

(Dec. 18, 2012 Report & Rec. 1–2, ECF No. 4.) 

After setting forth the appropriate standards, the Magistrate Judge concluded that

Plaintiff had failed to plead a facially plausible medical indifference claim. She analyzed this

issue as follows: 

 Here, even if the Court assumes that Plaintiff’s headaches and arthritis

pain are serious enough to satisfy the objective component, the conduct he

alleges, specifically, forcing him to pay for Ibuprofen and denying him a

prescription for muscle relaxants, does not constitute deliberate indifference to his

medical needs. 

Plaintiff’s claim concerning his access to Ibuprofen fails because he has

not alleged that he was denied necessary treatment on the basis that he could not

afford to purchase the medication. Although a prison is required to provide its

inmates with adequate medical care, this care does not necessarily have to be free

of charge. See Reynolds v. Wagner, 128 F.3d 166, 174 (3rd Cir. 1997) (“If a

prisoner is able to pay for medical care, requiring such payment is not ‘deliberate

indifference to serious medical needs.’”); Slattery v. Mohr, No. 2:11-CV-202,

2012 WL 2931131, at *8 (S.D. Ohio July 17, 2012) (inmate forced to purchase

over-the-counter medications from commissary pursuant to ODRC policy did not

establish an Eighth Amendment violation where he failed to demonstrate that he

was denied medical care due to his inability to afford medication); Hudgins v.

DeBruyn, 922 F.Supp. 144, 151 (S.D. Ind. 1996) (holding that policy requiring

purchase of over the counter drugs was not unconstitutional); cf. White v. Corr.

Med. Servs. Inc., 94 F. App’x 262, 264 (6th Cir. 2004) (citation omitted) (“It is

constitutional to charge inmates a small fee for health care where indigent inmates

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are guaranteed service regardless of ability to pay.”). Although Plaintiff makes

no allegations concerning his ability to purchase Ibuprofen, the grievance

materials he attaches to his Complaint reflect that he spent $682.90 at the

commissary over a ninety-day period and that he did, indeed, purchase a bottle of

Ibuprofen.

Plaintiff’s claim concerning the denial of muscle relaxants likewise fails

because it amounts to nothing more than a disagreement between him and prison

medical personnel over the appropriate medication to treat his symptoms. The

grievance materials Plaintiff attaches to his Complaint demonstrate that in

denying his request for muscle relaxants, prison officials have not ignored his

allegations of pain. Rather, the prison healthcare assistant conveyed her medical

opinion that the muscle relaxants he sought would not help his arthritis and noted

that he could purchase Motrin or Ibuprofen from the commissary. (April 15, 2011

ICR, ECF No. 1-3 at Ex. 27.) Under these circumstances, the medical personnel’s

alleged refusal to prescribe Plaintiff the muscle relaxants he requested fails to

state a claim for medical indifference. See White, 94 F. App’x at 264 (citations

omitted) (doctor’s refusal to prescribe inmate’s preferred medications “amounted

to only negligence or a difference of opinion” rather than “a deliberate

indifference to his medical needs”); Thomas v. Coble, 55 F. App’x 748, 749 (6th

Cir. 2003) (holding that inmate and medical provider’s disagreement “over the

preferred medication to treat [inmate’s] pain . . . does not support an Eighth

Amendment claim” and noting that “[t]he district court properly declined to

second-guess [the doctor’s] medical judgment”); Apanovitch v. Wilkinson, 32 F.

App’x 704, 707 (6th Cir. 2002) (“[A] difference of opinion between [a prisoner]

and the prison health care providers and a dispute over the adequacy of [a

prisoner’s] treatment . . . does not amount to an Eighth Amendment claim.”). 

 (Id. at 6–8.) 

Plaintiff timely filed objections to the Report and Recommendation on January 2, 2013. 

(ECF No. 6.) In his Objections, Plaintiff first complains that the “Magistrate Judge fail[ed] to

address the objective component required.” (Pl.’s Obj. 2, ECF No. 6.) He asserts that his pain

satisfies this component. Plaintiff next posits that his submission of the grievances establish that

he has also satisfied the subjective component. He explains that “Defendants knew and could

draw inferences that [his] pain is exceeding the standard pain relief policies because [he]

requested a different form of pain relief and yet Defendants still ignored him.” (Id. at 3.) 

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Plaintiff concludes that the Court should therefore permit him to proceed with the prosecution of

his medical indifference claim. 

II.

If a party objects within the allotted time to a report and recommendation, the Court

“shall make a de novo determination of those portions of the report or specified proposed

findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also Fed

R. Civ. P. 72(b). Upon review, the Court “may accept, reject, or modify, in whole or in part, the

findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).

The Magistrate Judge correctly explained that 28 U.S.C. § 1915(e) requires sua sponte

dismissal of an action upon the Court’s determination that the action is frivolous or malicious, or

upon determination that the action fails to state a claim upon which relief may be granted. She

also correctly employed Federal Rule of Civil Procedure 12(b)(6) standards in reviewing

complaints under §§ 1915A and 1915(e). See Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir.

2010) (applying Federal Rule of Civil Procedure 12(b)(6) standards to review pleadings under 28

U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). 

A complaint will be dismissed pursuant to Rule 12(b)(6) only if there is no law to support

the claims made, if the facts alleged are insufficient to state a claim, or if on the face of the

complaint there is an insurmountable bar to relief. Rauch v. Day & Night Mfg. Corp., 576 F.2d

697, 702 (6th Cir. 1978). Rule 12(b)(6) must be read in conjunction with Rule 8(a) of the

Federal Rules of Civil Procedure, which requires the complaint to contain a “short and plain

statement of the claim showing that the pleader is entitled to relief[.]” Fed. R. Civ. P. 8(a). 

A court, in considering a 12(b)(6) motion to dismiss, must “construe the complaint in the

light most favorable to the plaintiff,” accepting as true all the plaintiff’s factual allegations. 

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Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009). Although in this context all of the

factual allegations in the complaint are taken as true, a court is “not bound to accept as true a

legal conclusion couched as a factual allegation.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

555 (2007). Consequently, “[t]hreadbare recitals of the elements of a cause of action, supported

by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Further, to survive dismissal pursuant to Rule 12(b)(6), a claim must contain sufficient factual

matter to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A

claim has facial plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,

556 U.S. at 678. 

 III. 

 The Court has conducted a de novo review and agrees with the reasoning and analysis of

the Magistrate Judge. The Magistrate Judge did not err in failing to analyze whether or not

Plaintiff’s allegations satisfied the objective component of a medical indifference claim because

for purposes of her analysis, she assumed that his headaches and arthritis pain did satisfy the

objective component. (See Dec. 18, 2012 Report & Rec. 6, ECF No. 4.); see also Alspaugh v.

McConnell, 643 F.3d 162, 169 (6th Cir. 2011) (holding that a claim for deliberate indifference

“has both objective and subjective components”).

Nor did she err in concluding that Plaintiff had failed to sufficiently plead the subjective

component of a medical indifference claim. Plaintiff’s speculation that Defendants “could draw

inferences” that Ibuprofen was not functional in relieving his pain is unsupported and

undermined by his efforts to obtain the medication for free. Regardless, in his Complaint,

Plaintiff does not allege that the over-the-counter medication was not functional or that

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Defendants knew that the medications were not effective. Rather, Plaintiff’s Complaint details

his grievance history and posits that this history establishes Defendants’ deliberate indifference. 

Review of the grievances he attaches to his Complaint reveals that Plaintiff complained about

having to purchase Ibuprofen and about not receiving a prescription for muscle relaxants to treat

arthritis. The attached grievances further indicate that the prison healthcare assistant conveyed

her medical opinion that the muscle relaxants he sought would not help his arthritis and advised

him that he could purchase Motrin or Ibuprofen from the commissary. The Magistrate Judge

explained why, under the circumstances presented here, any claims premised upon denial of

muscle relaxants and requiring the purchase of Ibuprofen at the commissary would fail to satisfy

the subjective component of a medical indifference claim. The Court agrees with and adopts the

Magistrate Judge’s analysis on this issue. 

IV. 

For the reasons set forth above, Plaintiff’s Objections (ECF No. 6) are OVERRULED,

the December 18, 2012 Report and Recommendation (ECF No. 4) is ADOPTED, and this action

is DISMISSED for failure to state claim upon which relief can be granted pursuant to 28 U.S.C.

§ 1915(e)(2). 

IT IS SO ORDERED.

/s/ George C. Smith 

GEORGE C. SMITH, JUDGE

UNITED STATES DISTRICT COURT

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