1

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

LEROY COLLINS, 

 Plaintiff, 

 

 Civil Action 2:12-cv-1093 

 v. Judge George C. Smith 

 Magistrate Judge Elizabeth P. Deavers 

WARDEN, LONDON CORRECTIONAL 

INSTITUTION, et al., 

 

 Defendants. 

REPORT AND RECOMMENDATION

Plaintiff, Leroy Collins, an Ohio inmate who proceeds in forma pauperis and without the 

assistance of counsel, brings this civil rights action under 42 U.S.C. § 1983. This matter is 

before the Court for consideration of Plaintiff’s Motion for Summary Judgment (ECF No. 28), 

Defendants Motion for Summary Judgment and Memorandum in Opposition (ECF No. 35), 

Plaintiff’s Reply and Memorandum in Opposition (ECF No. 38), and Defendants Reply (ECF 

No. 42). For the reasons that follow, it is RECOMMENDED Defendants’ Motion for Summary 

Judgment be GRANTED (ECF No. 35) and that judgment be entered in favor of Defendants. 

Accordingly, it is RECOMMENDED that Plaintiff’s Motion be DENIED. (ECF No. 28.) 

I. BACKGROUND 

The Court incorporates by reference the factual background set forth in its June 5, 2013 

Order. (ECF No. 18.) The Court sets forth the following pertinent facts as they relate to the 

parties’ instant motions. 

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Plaintiff’s action is premised upon his allegations that Defendants, Tina Marie Bottorff 

and her supervisor, Robin Murphy, violated his Eight Amendment rights as a result of their 

deliberate indifference to his medical needs. Specifically, Plaintiff alleges that the staff at the 

London Correctional Facility (“LCI”) eliminated the treatment plan that was established at his 

prior institution to treat his spinal condition. According to Plaintiff, Defendant Bottorff 

eliminated his lower-bunk restriction and cancelled his prescriptions for Ibuprofen, Tylenol, and 

Neurontin. (Compl. 2, ECF No. 3.) He further alleges that Defendant Bottorff denied his 

request for an MRI, discontinued his asthma treatment, and refused to treat him for Hepatitis C. 

(Id.) 

Plaintiff also maintains that Defendant Bottorff retaliated against him for filing 

complaints against her. Specifically, he contends that each time he filed a complaint with her 

supervisor, Defendant Murphy, Defendant Bottorff discontinued another treatment. (Id. at 3.) 

He also maintains that Defendant Murphy has not taken appropriate steps in response to his 

complaints about Defendant Bottorff. 

Plaintiff sues Defendants in both their personal and official capacities. (See Order and 

Report and Recommendation 5, ECF No. 18.) He seeks injunctive relief against both 

Defendants, including restoration of his medical treatments and a new medical provider. He also 

seeks monetary damages from Defendant Bottorff. 

Plaintiff filed his Motion on October 3, 2013. (ECF No. 29.) In his Motion, Plaintiff 

asserts that the Court should grant summary judgment in his favor because he is entitled to 

judgment as a matter of law. Plaintiff maintains that Defendant Bottorff eliminated his treatment 

for his spinal condition and refused to treat him for his other conditions. He reiterates that 

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Defendant Bottorff eliminated treatments as retaliation for his complaints against her and 

Defendant Murphy failed to prevent such retaliatory action from taking place. 

Defendants filed their Memorandum in Opposition and Motion for Summary Judgment 

on November 12, 2013. (ECF No. 35.) In their Motion, Defendants set forth five reasons the 

Court should grant summary judgment in their favor and deny Plaintiff’s Motion. First, they 

assert that Plaintiff failed to exhaust his administrative remedies prior to bringing suit. Second, 

they contend that Defendant Bottorff was not deliberately indifferent because her decisions were 

based on sound medical judgment. Third, Defendants maintain that Defendant Murphy was not 

involved in Plaintiff’s medical treatment and cannot be held liable for responding to grievances. 

Fourth, they posit that Plaintiff cannot show Defendant Bottorff’s retaliatory motive for adjusting 

his treatment plan. Finally, Defendants assert that they are entitled to qualified immunity. 

Plaintiff opposes Defendants’ Motion. In his Reply, Plaintiff asserts that he completed 

the grievance process and exhausted his administrative remedies prior to bringing suit. Further, 

he notes that he was transferred to the Franklin Medical Center (“FMC”) on October 15, 2013 

and “within two weeks of [his] arrival . . . the medical staff reinstated the original treatment 

plan.” (Pl.’s Mem. in Opp. 3, ECF No. 38.) He maintains that genuine issues of material fact 

remain, including the reasons for Defendant Bottorff’s decision to eliminate most of his medical 

prescriptions, whether Defendant Bottorff should have ordered an MRI, and whether Defendant 

Murphy knew of Defendant Bottorff’s allegedly unconstitutional actions. 

In Defendants’ Reply, they again assert that no genuine issues of material fact exist and 

summary judgment should be granted in their favor. They maintain that Plaintiff did not exhaust 

his administrative remedies as it pertains to his asthma and hepatitis treatment. They contend 

that Plaintiff cannot show that Defendant Bottorff was deliberately indifferent to Plaintiff’s 

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medical needs or that Defendant Murphy violated his rights. Finally, Defendants again contend 

that they are entitled to qualified immunity. 

II. STANDARD OF REVIEW 

Under Federal Rule of Civil Procedure 56, “[t]he 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). “The moving party has the initial 

burden of proving that no genuine issue of material fact exists, and the court must draw all 

reasonable inferences in the light most favorable to the nonmoving party.” Stansberry v. Air 

Wisconsin Airlines Corp., 651 F.3d 482, 486 (6th Cir. 2011) (internal quotations omitted); cf. 

Fed. R. Civ. P. 56(e)(2) (providing that if a party “fails to properly address another party’s 

assertion of fact” then the Court may “consider the fact undisputed for purposes of the motion”). 

 “Once the moving party meets its initial burden, the nonmovant must ‘designate specific 

facts showing that there is a genuine issue for trial.’” Kimble v. Wasylyshyn, No. 10–3110, 2011 

WL 4469612, at *3 (6th Cir. Sept. 28, 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 

324 (1986)); see also Fed. R. Civ. P. 56(c) (requiring a party maintaining that a fact is genuinely 

disputed to “cit[e] to particular parts of materials in the record”). “The nonmovant must, 

however, do more than simply show that there is some metaphysical doubt as to the material 

facts, . . . there must be evidence upon which a reasonable jury could return a verdict in favor of 

the non-moving party to create a genuine dispute.” Lee v. Metro. Gov’t of Nashville & Davidson 

Cnty., 432 F. App’x 435, 441 (6th Cir. 2011) (internal quotation marks and citations omitted). 

“When a motion for summary judgment is properly made and supported and the nonmoving 

party fails to respond with a showing sufficient to establish an essential element of its case, 

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summary judgment is appropriate.” Stansberry, 651 F.3d at 486 (citing Celotex, 477 U.S. at 

322–23). 

III. ANALYSIS 

A. Mootness 

Although the parties do not address the issue, the Court properly raises the jurisdictional 

issue of mootness sua sponte. See North Carolina v. Rice, 404 U.S. 244, 246 (1971) (“Mootness 

is a jurisdictional question because the Court is not empowered to decide moot questions or 

abstract propositions . . . .”) (internal quotations marks and citations omitted); Berger v. 

Cuyahoga Cnty. Bar Ass’n, 983 F.2d 718, 721 (6th Cir. 1993) (“Questions of jurisdiction are 

fundamental matters which [a court] may review sua sponte.”). 

 Article III of the United States Constitution limits a federal court’s exercise of judicial 

power to actual, ongoing “Cases” or “Controversies.” U.S. Const. art. III, § 2, cl. 1. Article III’s 

case-or-controversy requirement subsists throughout all stages of the litigation. U.S. v. Juvenile 

Male, 131 S.Ct. 2860, 2864 (2011) (internal quotation marks and citation omitted) (“It is a basic 

principle of Article III that a justiciable case or controversy must remain extant at all stages of 

review, not merely at the time the complaint is filed.”). The doctrine of mootness is a corollary 

of Article III’s case-or-controversy requirement. “The mootness doctrine provides that although 

there may be an actual and justiciable controversy at the time the litigation is commenced, once 

that controversy ceases to exist, the federal court must dismiss the action for want of 

jurisdiction.” 15 James Wm. Moore et al., Moore’s Federal Practice § 101.9, at 101–238 (3d 

ed. 2011). 

 When an inmate files suit against prison officials at the institution of his incarceration 

based upon those officials’ wrongful conduct, seeking declaratory and injunctive relief, and that 

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inmate is subsequently transferred or released, courts routinely dismiss the declaratory and 

injunctive relief claims as moot. See Sossamon v. Texas, 131 S.Ct. 1651, 1669–70 (2011) 

(citations omitted) (“A number of . . . suits seeking injunctive relief have been dismissed as moot 

because the plaintiff was transferred from the institution where the alleged violation took place 

prior to adjudication on the merits.”); see, e.g., Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996) 

(concluding that inmate’s claims for declaratory and injunctive relief were rendered moot upon 

inmate’s transfer from the prison about which he complained); Abdur-Rahman v. Michigan 

Dep’t of Corr., 65 F.3d 489, 491 (6th Cir. 1995) (inmate’s request for injunctive relief mooted 

upon transfer from relevant prison); Lavado v. Keohane, 992 F.2d 601 (6th Cir. 1993) (same). 

Indeed, an inmate’s transfer or release ends the alleged violations of his or her constitutional 

rights, which “render[s] the court unable to grant the requested relief.” Berger, 983 F.2d at 724; 

Fredette v. Hemingway, 65 F. App’x 929, 931 (6th Cir. 2003) (concluding that an inmate’s 

request for injunctive relief to prevent his transfer to another prison became moot upon the 

inmate’s subsequent transfer because “the district court was unable to grant the relief 

requested”). 

 “There is . . . an exception to the mootness doctrine for claims that are capable of 

repetition, yet evade review.” Fredette, 65 F. App’x at 931. This narrow, capable-of-repetition 

exception is limited to situations in which ‘“the challenged action was in its duration too short to 

be fully litigated prior to its cessation or expiration”’ and ‘“there was a reasonable expectation 

that the same complaining party would be subjected to the same action again.”’ Id. (quoting 

Sandison v. Mich. High Sch. Athletic Ass’n, Inc., 64 F.3d 1026, 1029-30 (6th Cir. 1995)). 

 Applying the foregoing principles in the instant case, the Undersigned concludes that 

Plaintiff’s claims for injunctive relief are moot. Plaintiff only sues medical staff at LCI, the 

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institution where he was formerly incarcerated. Thus, the Court’s entry of equitable relief in 

Plaintiff’s favor would have no effect on Defendants’ behavior toward him because they perform 

their duties at an institution where Plaintiff is not incarcerated. Put another way, an entry of 

equitable relief would accomplish nothing. This Court does not have jurisdiction to accord 

Plaintiff with prospective relief that has no effect or impact on Defendants. In addition, because 

Plaintiff’s claims are LCI-specific, and because there is no reasonable expectation that he will be 

transferred back to LCI or that he will be subjected to the same action at FMC,1

 the capable-ofrepetition exception to the mootness doctrine does not apply. Accordingly, the Undersigned 

concludes that Plaintiff’s claims for injunctive relief are MOOT. The Undersigned therefore 

RECOMMENDS that the Court DISMISS Plaintiff’s claims for injunctive relief pursuant to 28 

U.S.C. § 1915(e)(2) (obligating the court to dismiss a claim at any time if the court determines 

that it fails to state a claim upon which relief can be granted). 

B. Summary Judgment 

 Accordingly, Plaintiff’s remaining claims are those for monetary damages against 

Defendant Bottorff. (See Compl. 9, ECF No. 3.) The Court will consider the parties’ arguments 

as they pertain to Plaintiff’s claims against Defendant Bottorff in turn. 

1. Exhaustion 

 In his Complaint, Plaintiff asserts that Defendant Bottorff improperly discontinued his 

asthma medication and refused to treat him for Hepatitis C. He indicates that his only 

medication to deal with his pain is an arthritis medicine called Mobic. (Compl. 2, ECF No. 3.) 

 

1

 In fact, Plaintiff points out that the FMC medical staff has reinstated his former treatment plan, 

making it even less likely that Plaintiff will be subjected to similar actions at FMC. (Pl.’s Mem. 

in Opp. 3, ECF No. 38.) 

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In his Motion for Summary Judgment, Plaintiff asserts for the first time that Defendant Bottorff 

improperly cancelled his Mobic prescription. (Pl.’s Mot. 2, ECF No. 28.) 

Defendants argue that Plaintiff failed to follow the “three-step prison grievance 

procedure” for his allegations that Defendant Bottorrf denied his asthma and Hepatitis C 

treatment and cancelled his Mobic prescription. (Blackwell Aff. ¶¶ 9-12, ECF No. 35-10.) 

Defendants provide an affidavit from DeCarlo Blackwell, the custodian of the grievance records 

at LCI. (Blackwell Aff. ¶ 2, ECF No. 35-10.) In his affidavit, Mr. Blackwell attests that Plaintiff 

has not filed any grievances for his claims related to the denial of his asthma treatment. (Id. at ¶ 

10.) Additionally, Mr. Blackwell attests that Plaintiff has not filed any grievances identifying 

Defendant Bottorff as the individual responsible for denying his Hepatitis C treatment. (Id. at ¶ 

11.) He further avers that Plaintiff’s grievance concerning his Mobic prescription occurred after 

the date he filed the instant lawsuit. (Id. at ¶ 12.) Finally, Mr. Blackwell attests that the 

grievance records submitted by Defendants “are true and accurate copies of grievance documents 

and appeals” for Plaintiff during his time at LCI. (Id. at ¶ 13.) 

In his unsworn Memorandum in Opposition, Plaintiff asserts that he has completed the 

three-step grievance process. He does not, however, provide such grievance records or an 

affidavit attesting to his compliance with the process. The Undersigned concludes that Plaintiff 

has not adduced sufficient evidence to create a genuine issue of material fact as to whether he 

exhausted his administrative remedies with regard to the above mentioned claims. 

Under 42 U.S.C. § 1997e(a), as amended by the PLRA, “a prisoner confined in any jail, 

prison, or other correctional facility” may not bring an action challenging “prison conditions” 

under 42 U.S.C. § 1983 “or any other Federal law . . . until such administrative remedies as are 

available are exhausted.” 42 U.S.C. § 1997e(a); Jones v. Bock, 549 U.S. 199, 211 (2007) 

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(“There is no question that exhaustion is mandatory under the PLRA and that unexhausted 

claims cannot be brought in court.” (citation omitted)). This mandatory exhaustion requirement 

applies to all lawsuits relating to prison conditions, regardless of the nature of the wrong or the 

relief sought. Porter v. Nussle, 534 U.S. 516, 524 (2002). “Exhaustion” under the PLRA means 

“proper exhaustion.” Woodford v. Ngo, 548 U.S. 81, 93 (2006). To properly exhaust, prisoners 

must “tak[e] advantage of each step the prison holds out for resolving the claim internally and . . 

. follow the ‘critical procedural rules’ of the prison’s grievance process to permit prison officials 

to review and, if necessary, correct the grievance ‘on the merits’ in the first instance.” Reed-Bey 

v. Pramstaller, 603 F.3d 322, 324 (6th Cir. 2010); Jones, 549 U.S. at 217–18 (noting that proper 

exhaustion requires “[c]ompliance with prison grievance procedures”). Where an inmate 

“affirmatively endeavors to comply” with the administrative procedures, a court must “analyze[] 

whether those ‘efforts to exhaust were sufficient under the circumstances.’” Risher v. Lappin, 

639 F.3d 236, 240 (6th Cir. 2011) (quoting Napier v. Laurel Cnty., 636 F.3d 218, 224 (6th Cir. 

2011)). 

 Ohio has established a procedure for resolving inmate complaints. Ohio Admin. Code § 

5120–9–31. To properly exhaust a claim seeking relief “regarding any aspect of institutional life 

that directly and personally affects the [inmate],” an inmate at an ODRC facility must comply 

with its three-step grievance system. Id. For the first step, the inmate must submit an informal 

complaint to the staff member or to the direct supervisor of the staff member or to the 

department most directly responsible over the subject matter with which the inmate is concerned. 

Ohio Admin. Code § 5120–9–31(K)(1). If the inmate is not satisfied with the results at the first 

step, he may take the second step by filing a formal grievance with the inspector of institutional 

services at the prison where he is confined. Ohio Admin. Code § 5120–9–31(K)(2). That 

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inspector will investigate the matter and issue a written response to the inmate’s grievance within 

fourteen calendar days of receipt. Id. If the inmate is still dissatisfied, he may pursue the third 

step, which is an appeal to the office of the Chief Inspector of ODRC. Ohio Admin. Code § 

5120–9–31(K)(3). An inmate does not exhaust his remedies under § 5120-9-31 until he has 

received a decision in an appeal to the office of the Chief Inspector. 

 “Although ‘exhaustion is not per se inadequate simply because an individual later sued 

was not named in the grievances,’ . . . a plaintiff generally fails to exhaust administrative 

remedies by failing to include an official’s name in a grievance if it is required by the applicable 

grievance procedures.” Hall v. Warren, 443 F. App’x 99, 106 (6th Cir. 2011) (quoting Jones, 

549 U.S. at 218). The United States Court of Appeals for the Sixth Circuit has recognized an 

exception to the general rule requiring adherence to the applicable grievance procedures when 

“prison officials decline to enforce their own procedural requirements and opt to consider 

otherwise-defaulted claims on the merits.” Reed–Bey, 603 F.3d at 324. 

 At the time Plaintiff filed his various grievances, Section 5120–9–31(K) set forth the 

specificity requirement as follows: 

Informal complaints and grievances must contain specific information; dates, 

times, places, the event giving rise to the complaint and, if applicable, the name or 

names of personnel involved and the name or names of any witnesses. Specificity 

of the complaint provides institutional staff the opportunity to investigate the 

complaint and to take corrective action to address a valid complaint. In the event 

an inmate does not know the identity of the personnel involved, a “John/Jane 

Doe” complaint may be filed. However, the complaint shall be specific as to 

dates, times, places, physical descriptions of any unidentified personnel and the 

actions of said personnel giving rise to the complaint. 

Ohio Admin. Code § 5120-9-31 K) (emphasis added).

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 Applying the foregoing authority, the Undersigned concludes that Plaintiff failed to 

properly exhaust his administrative remedies with regard to the denial of Hepatitis treatment.2 

Although the relevant policy required Plaintiff to identify the individuals involved, he does not 

name Defendant Bottorff in his grievances. In his grievance related to Hepatitis C treatment, he 

attributes the denial of treatment to a “Nurse Wise.” (Grievance 28, ECF No. 35-2.) 

 Assuming the claim is even properly before the Court, the Undersigned further concludes 

that Plaintiff failed to exhaust his administrative remedies as it pertains to his prescription for 

Mobic.3 “The PLRA attempts to eliminate unwarranted federal-court interference with the 

administration of prisons, and thus seeks to ‘affor[d] corrections officials time and opportunity to 

address complaints internally before allowing the initiation of a federal case.’” Woodford v. 

Ngo, 548 U.S. 81, 93-94 (2006) (quoting Porter v. Nussle, 534 U.S. 516, 525 (2002)); see also 

Napier v. Laurel Cnty., Ky., 636 F.2d 218, 222 (6th Cir. 2011) (“The [PLRA] seeks to alleviate 

the burden of this litigation by requiring prisoners to exhaust all administrative remedies before 

they can file suit in federal court.”). Plaintiff filed his Complaint in this action on November 28, 

2012. In his Complaint, Plaintiff indicates that he was receiving Mobic for his pain. (Compl. 2, 

ECF No. 3.) He asserts that Defendant Bottorff improperly terminated his prescription for 

Mobic for the first time in his Motion for Summary Judgment. 

 

2

 Similarly, Plaintiff attributes his denial of Ultram to “Dr. Woods” in the relevant grievance and 

now attempts to attribute this denial to Defendant Bottorff. The Court has already dismissed 

Plaintiff’s claims against Dr. Woods. As explained above, Plaintiff has in all events failed to 

exhaust his administrative remedies as to Defendant Bottorff as it pertains to such a denial. (Pl.’s 

Grievance 28, ECF No. 35-2.) 

3

 The Court notes that Plaintiff first asserted this claim in his Motion for Summary Judgment. 

He cannot properly assert a claim in a Motion for Summary Judgment, but instead should have 

moved to amend his Complaint. Even if had moved to amend his Complaint, it would fail as 

futile because, as set forth above, he did not properly exhaust his administrative remedies. 

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Defendants’ grievance records indicate that Plaintiff did not file a grievance relating to 

Mobic until December 27, 2012, nearly a month after he initiated this lawsuit. (Grievance Rec. 

9, ECF No. 35-2.) Plaintiff does not present competent summary judgment evidence to 

contradict Defendants’ grievance records and Mr. Blackwell’s affidavit. Instead, Plaintiff 

claims, without support, in his unsworn Memorandum in Opposition that he “fully exhausted all 

3-steps of the inmate grievance process regarding all aspects of his claims.” (Pl.’s Mem. in Opp. 

5, ECF No. 38.) Plaintiff also attaches to his Memorandum the December 27, 2012 grievance 

related to Mobic, which specifically notes that he has a federal lawsuit pending against 

Defendant Bottorff. (Dec. 27, 2012 Grievance, ECF No. 38-1.) Thus, because he did not 

exhaust his claim regarding denial of Mobic prior to instituting this case, the Undersigned 

concludes that Plaintiff has not exhausted his administrative remedies as it pertains to this claim. 

 Plaintiff likewise does not provide competent summary judgment evidence under Rule 56 

that he exhausted his administrative remedies with regard to his asthma treatment. The 

grievance records show that Plaintiff has not yet filed a grievance related to the denial of his 

asthma treatment. (See Grievance Rec., ECF No. 35-2.) In response, Plaintiff asserts, without 

more, that a genuine dispute of material fact exists as to whether he exhausted his administrative 

remedies. He does not set forth an affidavit or any other authenticated documentation attesting 

that he properly grieved the denial of his asthma treatment. See United States v. Brown, 7 F. 

App’x 353, 354 (6th Cir. 2001) (concluding that summary judgment was proper where defendant 

failed to present evidence by “fil[ing] an affidavit” or “sign[ing] any pleading under the penalty 

of perjury.”). Nor does he provide any grievance records or dispute the affidavit provided by 

Defendants. As such, Defendants have adduced sufficient evidence to demonstrate that Plaintiff 

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has not exhausted his administrative remedies with regard to his claims that Defendant Bottorff 

improperly withheld his asthma treatment. 

Accordingly, the Undersigned RECOMMENDS that summary judgment be entered in 

favor of Defendants on Plaintiff’s claims related to denial of his Hepatitis C treatment, his 

prescription for Mobic, and his asthma treatment. 

2. Deliberate Indifference Claims 

In his Complaint, Plaintiff alleges that Defendant Bottorff eliminated all treatment for his 

spinal condition in violation of his Eighth Amendment rights. He indicates that the treatment 

plan for his spinal condition included prescriptions for pain relievers including Neurontin, 

Tylenol, and Ibuprofen, and a lower-bunk restriction. Defendants contend that summary 

judgment is appropriate on Plaintiff’s deliberate indifference claims because Defendant Bottorff 

terminated Plaintiff’s various treatments based on sound medical decisions and did not intend to 

inflict punishment. 

 “The Eighth Amendment forbids prison officials from unnecessarily and wantonly 

inflicting pain on an inmate by acting with deliberate indifference toward [his] serious medical 

needs.” Jones v. Muskegon Cnty., 625 F.3d 935, 941 (6th Cir. 2010) (internal quotations and 

citations omitted). A claim for deliberate indifference “has both objective and subjective 

components.” Alspaugh v. McConnell, 643 F.3d 162, 169 (6th Cir. 2011). The United States 

Court of Appeals for the Sixth Circuit has explained: 

The objective component mandates a sufficiently serious medical need. 

[Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 895 (6th Cir. 2004).] The 

subjective component regards prison officials’ state of mind. Id. Deliberate 

indifference “entails something more than negligence, but can be satisfied by 

something less than acts or omissions for the very purpose of causing harm or 

with knowledge that harm will result.” Id. at 895-96 (internal quotation marks 

and citations omitted). The prison official must “be aware of facts from which the 

inference could be drawn that a substantial risk of serious harm exists, and he 

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must also draw the inference.” Id. at 896 (internal quotation marks and citations 

omitted). 

Barnett v. Luttrell, 414 F. App’x 784, 787–88 (6th Cir. 2011). 

When a prison doctor provides treatment, albeit carelessly or inefficaciously, to a 

prisoner, he [or she] has not displayed a deliberate indifference to the prisoner's 

needs, but merely a degree of incompetence which does not rise to the level of a 

constitutional violation. On the other hand, a plaintiff need not show that the 

official acted for the very purpose of causing harm or with knowledge that harm 

will result. Instead, deliberate indifference to a substantial risk of serious harm to 

a prisoner is the equivalent of recklessly disregarding that risk. 

Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001) (internal citations and 

quotations omitted). The Sixth Circuit has also noted that in the context of deliberate 

indifference claims:

[W]e distinguish between cases where the complaint alleges a complete denial of 

medical care and those cases where the claim is that a prisoner received 

inadequate medical treatment. Where a prisoner alleges only that the medical 

care he received was inadequate, federal courts are generally reluctant to second 

guess medical judgments. However, it is possible for medical treatment to be so 

woefully inadequate as to amount to no treatment at all. 

Alspaugh, 643 F.3d at 169 (internal quotations and citations omitted). Along similar lines, 

“[o]rdinary medical malpractice does not satisfy the subjective component.” Grose v. Corr. 

Med. Servs., Inc., 400 F. App’x 986, 988 (6th Cir. 2010). Furthermore, “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.” Apanovitch v. 

Wilkinson, 32 F. App’x 704, 707 (6th Cir. 2002). 

Again, Plaintiff alleges that Defendants were deliberately indifferent to his serious 

medical needs related to his spinal condition because Nurse Bottorff discontinued his 

prescriptions and eliminated a requirement that he be given a lower-bunk bed. Defendants first 

address Plaintiff’s claim that Defendant Bottorff improperly discontinued his prescription for 

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Neurontin. In an affidavit, Defendant Bottorff attests that she terminated Plaintiff’s Neurontin 

prescription because Plaintiff “complained that Neurontin was ineffective at treating his pain.” 

(Bottorff Aff. ¶ 12, ECF No. 35-1.) She further asserts that, at the time, Plaintiff “was still 

proscribed Mobic . . . to treat his pain.” (Id.). In his Memorandum in Opposition, Plaintiff 

agrees that the Neurontin was ineffective to treat his pain but asserts that he asked Defendant 

Bottorff to substitute that medication with a different pain reliever. He further posits that 

Defendant Bottorff “refused to give Plaintiff any substitute pain medication.” (Pl.’s Mem. in 

Opp. 3, ECF No. 38.) He maintains that a genuine issue of material fact exists as to whether 

Defendant Bottorff prescribed Mobic to treat his arthritis and not his disc disease. Defendants 

note that at the time of his Complaint, however, Plaintiff indicates that he was receiving Mobic 

as a pain reliever. (Compl. 6, ECF No. 3.) 

 Next, Defendants address Plaintiff’s assertion that Defendant Bottorff improperly 

eliminated his lower-bunk restriction. They maintain that Nurse Bottorff used her medical 

discretion to remove the restriction because Plaintiff “was athletic, moved about well,” and did 

not report increased pain over the year. (Defs.’ Mot. 12, ECF No. 35.) Defendants also submit 

evidence that Defendant Bottorff did renew his “job restriction limiting his standing time while 

at work.” (Id. citing Med. Record 26, ECF No. 35-3.) In his Memorandum in Opposition, 

Plaintiff does not dispute Defendant Bottorff’s assertion that she maintained his work restriction. 

 Defendants have provided competent evidence to indicate that Defendant Bottorff did not 

completely deny Plaintiff care related to his spinal condition. “In cases ‘where a prisoner alleges 

only that the medical care he received was inadequate federal courts are generally reluctant to 

second guess medical judgments.’” Burton v. Kakani, 514 F. App’x 577, 579 (6th Cir. 2013) 

(quoting Alspaugh, 643 F.3d at 169); see also Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 

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1976) (“Where a prisoner has received some medical attention and the dispute is over the 

adequacy of the treatment, federal courts are generally reluctant to second guess medical 

judgments and to constitutionalize claims which sound in state tort law.”). Here, Plaintiff 

acknowledges that he was receiving Mobic as a pain reliever at the time he filed his Complaint. 

Further, he was able to purchase over-the-counter pain relievers at the prison commissary. As to 

his lower-bunk restriction, Plaintiff has not rebutted Defendant Bottorff’s sworn assertions that 

she reviewed his history and determined that he no longer was eligible for a low-bunk restriction. 

Further, Plaintiff does not dispute that Defendant Bottorff maintained his restriction regarding 

how much time he was required to stand at work. These are discretionary decisions made by a 

medical professional. The Court will not second guess Defendant Bottorff’s decision, based on 

her sound medical judgment, to discontinue Plaintiff’s prescription for Neurontin and cancel his 

lower-bunk restriction. 

 For the same reasons, the Undersigned also concludes that Defendants are entitled to 

summary judgment on Plaintiff’s claims relating to Defendant Bottorff’s decision to use an Xray as a diagnostic tool rather than the MRI Plaintiff requested. “[T]he question whether an Xray or additional diagnostic techniques or forms of treatment is indicated is a classic example of 

a matter for medical judgment.” Estelle v. Gamble, 429 U.S. 97, 107-08 (1976). “A medical 

decision not to order an X-ray, or like measures, does not represent cruel and unusual 

punishment.” Id.; see also Marbry v. Antonini, 289 F. App’x 895, 902 (6th Cir. 2008) 

(concluding that plaintiff’s assertion that his physician “did not order specific tests . . . [did] not 

state a constitutional claim of deliberate indifference as to serious medical needs.”). Here, 

Plaintiff does not dispute Defendant Bottorff’s statement that she ordered an X-ray rather than 

the MRI he requested. In her affidavit, Defendant Bottorff states that she made the decision to 

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order an X-ray because “Inmate Collins had not complained of pain relating to his back during 

the previous year, and using [her] medical training, experience, and knowledge, [she] determined 

that an MRI was not indicated for Inmate Collins.” (Bottorff Aff. ¶ 15, ECF No. 35-1.) Based 

on this irrefuted testimony and the applicable case law, the Undersigned therefore concludes that 

Defendants are entitled to summary judgment on Plaintiff’s claim related to his preference for an 

MRI over an X-ray. 

Defendants are also entitled to summary judgment on Plaintiff’s claim concerning his 

access to Tylenol and other over-the-counter pain medications. Plaintiff 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 are guaranteed service 

regardless of ability to pay.”). Plaintiff does not dispute his ability to pay for his over-thecounter medications. Nor does he challenge Defendant Bottorff’s attestation that she terminated 

his access to free over-the-counter pain medications after a review of his indigency status, in 

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which she determined that Plaintiff’s “financial records no longer categorized him as indigent.” 

(Bottorff Aff. ¶ 14, ECF No. 35-1.) Plaintiff has not adduced competent sufficient evidence to 

create a genuine issue of material fact that Defendant Bottorff violated his Eighth Amendment 

rights by requiring him to pay for over-the-counter pain relievers. 

The Undersigned therefore RECOMMENDS that the Court grant Defendants’ Motion 

for Summary Judgment and enter judgment in favor of Defendants on Plaintiff’s Eighth 

Amendment claims. 

3. Retaliation Claim 

Defendants assert that they are entitled to summary judgment on Plaintiff’s retaliation 

claim against Defendant Bottorff. They contend that Plaintiff has not established a causal 

connection between his protected conduct and Defendant Bottorff’s allegedly retaliatory actions. 

Further, they assert that his claims for retaliation consist of only unsupported, conclusory 

allegations. Plaintiff does not address Defendants’ arguments in his Memorandum in 

Opposition. 

The Court of Appeals for the Sixth Circuit has set out the elements of a First Amendment 

Retaliation claim as follows: 

To establish a First Amendment retaliation claim, a plaintiff must prove that: 1) 

the plaintiff engaged in activities protected by the Constitution or statute; 2) the 

defendant took an adverse action that would deter a person of ordinary firmness 

from continuing to engage in that conduct; and 3) that this adverse action was 

taken at least in part because of the exercise of the protected conduct. 

Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001) (citing Thaddeus-X v. Blatter, 175 F.3d 

378, 394 (6th Cir. 1999)). Here, the parties do not dispute that Plaintiff engaged in protected 

conduct by filing grievances against Defendant Bottorff. See Herron v. Harrison, 203 F.3d 410, 

415 (6th Cir. 2000) (“An inmate has an undisputed First Amendment right to file grievances 

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against prison officials on his own behalf.”); see also Clark v. Johnston, 413 F. App’x 804, 814 

(6th Cir. 2011) (recognizing that inmates enjoy a First Amendment right to file grievances 

against prison staff). Further, construing the materials in the light most favorable to Plaintiff, he 

has arguably met his burden under the second element. The deprivation of a prescribed pain 

medication constitutes an adverse action. Smith v. Yarrow, 78 F. App’x 529, 540 (6th Cir. 2003); 

see also Tate v. Williams, No. 2:06-cv-47, 2007 WL 2302613, *4 (S.D. Ohio Aug. 8, 2007) (“In 

the prison context, ‘adverse action’ includes . . . deprivation of pain medication.”). 

The Undersigned concludes, however, that Plaintiff has failed to meet his burden on the 

third element. To establish the causation element of a retaliation claim, “the plaintiff must be 

able to prove that the exercise of the protected right was a substantial or motivating factor in the 

defendant’s alleged retaliatory conduct.” Smith, 250 F.3d at 1037 (citing Mount Health City 

School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). 

In support of his retaliation claim, Plaintiff indicates that “[e]very time [he would] file an 

informal complaint against Nurse Bottorff to [her supervisor], Nurse Bottorff would retaliate 

against [him] and discontinue a medical treatment for the numerous health problems [he has].” 

(Compl. 3, ECF No. 3.) Plaintiff’s argument is unavailing. Temporal proximity between the 

filing of grievances and an adverse action provide “some circumstantial support for a causal 

connection.” Smith, 250 F.3d at 1038. That evidence is “easily overcome,” however, if 

Defendants can show that they would have taken the same action in the absence of protected 

activity. Id.; see also Thaddeus-X, 175 F.3d at 399 (“If the defendant can show that he would 

have taken the same action in the absence of the protected activity, he is entitled to prevail on 

summary judgment.”). 

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Here, Defendants have submitted affidavits and medical records to demonstrate that 

Defendant Bottorff had neutral, non-retaliatory reasons for adjusting Plaintiff’s course of 

treatment. First, they provided records to demonstrate the decision to discontinue his asthma 

treatment occurred on June 5, 2012. Plaintiff, however, did not file a grievance against 

Defendant Bottorff alleging retaliation until September 24, 2012. (Med. Rec. 25, ECF No. 35-3, 

Grievance Rec. 18, ECF No. 35-2.) Similarly, Defendant Bottorff eliminated Plaintiff’s lowerbunk restriction before he filed any grievances against her, making it impossible for her to have 

done so in retaliation for his grievances. Next, they provide records to show that the decision to 

terminate his treatment for Hepatitis C was made by individuals other than Defendant Bottorff. 

(Grievance Rec. 36, ECF No. 35-2.) Further, Defendant Bottorff indicates that she cancelled 

Plaintiff’s Neurontin prescription because he complained about the side effects, which Plaintiff 

does not dispute. (Bottorff Aff. ¶ 12, ECF No. 35-1.) She also provides sworn evidence that she 

ordered an X-ray for Plaintiff rather than an MRI based on her medical judgment after evaluating 

Plaintiff’s condition. (Id.at ¶ 15.) 

Defendants have provided sufficient evidence to show that Defendant Bottorff would 

have taken the same actions in the absence of Plaintiff’s grievances against her. Therefore, the 

Undersigned RECOMMENDS that the Court grant Defendants’ Motion for Summary Judgment 

and enter judgment in favor of Defendants on Plaintiff’s claim for retaliation. 

IV.

 For the foregoing reasons, it is RECOMMENDED that Plaintiff’s claims for injunctive 

relief be DENIED AS MOOT. It is further RECOMMENDED that Defendants’ Motion for 

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Summary Judgment be GRANTED.

4

 (ECF No. 35.) Accordingly, it is RECOMMENDED 

that Plaintiff’s Motion for Summary Judgment be DENIED. (ECF No. 28.) 

V. PROCEDURE ON OBJECTIONS

 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 in 

question, as well as the basis for objection. 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. 

Fed. R. Civ. P. 72(b). 

 The parties are specifically advised that the 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. See, e.g., Pfahler v. Nat’l Latex 

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate 

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district 

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that 

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to 

magistrate judge’s report and recommendation). Even when timely objections are filed, 

appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 

981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to 

specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation 

omitted)). 

 

 

4

 The Court dispenses with an analysis of qualified immunity given this recommendation to grant 

summary judgment to Defendants on the merits. 

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Date: April 23, 2014 /s/ Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers 

 United States Magistrate Judge

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