UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

DERRICK ALLISON,

Plaintiff, CASE NO. 09-CV-10099

v. DISTRICT JUDGE THOMAS L. LUDINGTON

MAGISTRATE JUDGE CHARLES E. BINDER

N. MARTIN, SAVI KAKANI,

ANIL PRASAD, and JOHN DOE, 

Defendants.

/

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

ON DEFENDANTS KAKANI and PRASAD’S MOTION TO DISMISS

AND DEFENDANT MARTIN’S MOTION TO DISMISS

(Docs. 14, 16)

I. RECOMMENDATION

For the reasons set forth below, IT IS RECOMMENDED that Defendants’ motions be

GRANTED and that the case be dismissed in its entirety.

II. REPORT

A. Background

Plaintiff Derrick Allison, a Michigan inmate, filed this prisoner civil rights action on

January 9, 2009. Plaintiff’s application to proceed without prepayment of fees was granted on

January 13, 2009. The case was referred to the undersigned magistrate judge for pretrial

management on January 26, 2009. (Doc. 4.)

Plaintiff is currently incarcerated by the Michigan Department of Corrections (“MDOC”)

at the Alger Maximum Correctional Facility (“LMF”) in Munising, Michigan. The events giving

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rise to his lawsuit occurred while Plaintiff was incarcerated at the Gus Harrison Correctional

Facility in Adrian, Michigan. Plaintiff suffers from eczema. Plaintiff alleges that although he was

“given one small refill of Kenalog ointment” in April 2008, he experienced “further irritation from

4/08-5/08 and request[ed] [a] larger refill of Kenalog lotion instead of the generic or substitute

ointment I got one [sic] response to several kites where (RN) Ausdale said she would put request

on (PA) Kakani’s desk.” (Doc. 1 ¶ 2.) Plaintiff had sent a kite in early May because he was

scratching himself in his “sleep to the“point of bloodying [his] sheets.” (Id. ¶ 3.) On May 10,

2008, Plaintiff indicates that Nurse Van Ausdale responded to the kite, indicating that she had

made a second request to Defendant Kakani on behalf of Plaintiff. (Id.) 

On May 24, 2008, Nurse Van Ausdale responded to another complaint by informing

Plaintiff that he was scheduled for an appointment on May 29, 2008. (Id. ¶ 4.) When Plaintiff was

not called out for his appointment on that day, he submitted another kite on May 29, 2008. (Id.

¶ 5.) Having received no response to that kite, Plaintiff filed Grievance # ARF-08060-1053-12F2

on June 2, 2008. (Id. ¶ 6.) 

Plaintiff avers that on June 7, 2008, Nurse Van Ausdale informed him that Defendant

Kakani was cancelling orders for his medication, so Plaintiff sent another kite on June 16, 2008.

(Id. ¶¶ 7, 8.) On June 18, 2008, Nurse Van Ausdale responded to the kite, indicating she had

placed his file on Defendant Kakani’s “desk for her to write a new order.” (Id. ¶ 9.) On June 30,

2008, Plaintiff was invited to speak with Nurse Rothar, but “refused, stating, ‘either give me meds

or flat-out refuse me.’” (Id. ¶ 10.)

Plaintiff was examined by Defendant Kakani on July 2, 2008. However, Plaintiff complains

that he “was upset because of the poor nature of the exame [sic] (a quick glance under no lights,

while I was in chains and still dressed) [so he] informed Kakani she was not a dermatologist and

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didn’t know what she was doing or talking about.” (Id. ¶ 11.) Another series of complaints and

responses followed. (Id. ¶¶ 12-17.) Plaintiff alleges that Nurse Clark informed him that Defendant

Kakani has been purposeful in denying him his medication refills. (Id. ¶ 18.) On July 25, 2008,

Plaintiff “showed (RN) Brent [his] inflammation [and RN Brent’ [t]old [Plaintiff] [he] would

report it.” (Id. ¶ 19.) Plaintiff states that Nurse Van Ausdale indicated that she was “powerless”

to do anything other than report and file requests or complaints. (Id. ¶ 20.) On July 29, 2008,

“(RN) Rothar performed a skin exame [sic] through [Plaintiff’s] food tray slot and acted as though

she saw nothing worthy of treatment.” (Id. ¶ 22.)

On August 1, 2008, Plaintiff sent a medical kite to Defendant Prasad, M.D., and followed

up with a letter to Defendant Prasad on August 3, 2008. (Id. ¶¶ 24, 25.) More kites were sent on

August 14, 2008, and on August 18, 2008. Nurse Van Ausdale scheduled Plaintiff to see

Defendant Prasad on August 19, 2008. (Id. ¶ 27.) On August 22, 2008, Nurse Brent and Sergeant

Johnson saw Plaintiff’s skin and each indicated he would notify medical staff about Plaintiff’s

condition. (Id. ¶ 28.) On August 23, 2008, Nurse Brent told Plaintiff that he would talk to

Defendant Prasad, but that he had heard “they can’t get Kenalog.” (Id. ¶ 29.) On August 24, 2008,

Nurse Marine checked Plaintiff and “noted extreme dryness of skin.” (Id. ¶ 30.) Plaintiff filed

another kite on August 25, 2008, but was refused antibiotic ointment by Nurse Van Ausdale on

August 26, 2008. (Id. ¶¶ 31, 32.) 

Plaintiff indicates that on September 4, 2008, Nurse Marine checked his skin and stated that

“it looked like psoriasis, quite the contrary to 8/24 exame [sic].” (Id. ¶ 33.) Plaintiff sent a letter

of complaint to Defendants Kakani and Prasad on September 5, 2008, “who never responded.”

(Id. ¶ 34.) Plaintiff received responses from others on September 8 and 10, 2008, and on

September 11, 2008, Plaintiff was transferred to “JCF,” i.e., the G. Robert Cotton Correctional

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Defendant Martin also argues that any official capacity claims are barred by the Eleventh Amendment;

however, since I suggest the claim may be dismissed on substantive grounds, I do not need to address that issue.

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Facility in Jackson, Michigan. (Id. ¶¶ 36, 37.) Plaintiff was given Kenalog ointment and was

transferred to the Alger Correctional Facility (“LMF”) in Munising, Michigan, where he currently

resides, on October 17, 2008. (Id. ¶¶ 37, 40.) Although Plaintiff’s complaint includes events

occurring after his transfer to LMF, any complaint regarding those events would need to be filed

in the United States District Court for the Western District of Michigan. 

Plaintiff’s complaint alleges that the above actions constituted deliberate indifference to his

serious medical needs in violation of the Eighth Amendment to the United States Constitution. (Id.

at 10.) Plaintiff seeks injunctive relief, compensatory damages and punitive damages in the

amount of $100,000. (Id. at 11.) 

The two motions before the Court are Defendant Kakani and Prasad’s motion to dismiss

contending that Plaintiff’s complaint does not allege facts that state a claim for deliberate

indifference to serious medical needs (Doc. 14) and Defendant Martin’s “motion to dismiss under

Rule 56.” (Doc. 16.) Although Rule 56 refers to motions for summary judgment rather than

motions to dismiss, since it is not necessary to look to any evidence beyond the face of the

complaint, the Court will treat both motions as motions to dismiss. Defendant Martin’s motion

argues that she was not personally involved in the actions giving rise to the complaint other than

review of grievance responses, which is insufficient, and that she is entitled to qualified immunity.

(Doc. 16.)1

Upon review of the documents, I conclude that, pursuant to E.D. Mich. LR 7.1(e)(2), these

motions are ready for Report and Recommendation without oral argument.

B. Motion Standards

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In facing a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal

Rules of Civil Procedure, “[t]he court must construe the complaint in the light most favorable to

the plaintiff, accept all the factual allegations as true, and determine whether the plaintiff can prove

a set of facts in support of its claims that would entitle it to relief.” Bovee v. Coopers & Lybrand

C.P.A., 272 F.3d 356, 360 (6th Cir. 2001). As the Supreme Court held in Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007), a complaint must be dismissed

pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted if the

complaint does not plead “enough facts to state a claim to relief that is plausible on its face.” Id.

at 570 (rejecting the traditional Rule 12(b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41,

45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)). Under Rule 12(b)(6), “a plaintiff’s obligation to

provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and

a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555

(citations omitted). Even though a complaint need not contain “detailed” factual allegations, its

“[f]actual allegations must be enough to raise a right to relief above the speculative level on the

assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id.

(citations omitted). 

The Supreme Court recently explained that the “tenet that a court must accept as true all of

the allegations contained in the complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal,

___U.S.___, 129 S. Ct. 1937, 1949 (2009) (finding assertions that a defendant was the “principal

architect” of an invidious policy and another defendant was “instrumental” in adopting and

executing a policy of invidious discrimination were insufficient to survive a motion to dismiss

because they were “conclusory” and thus not entitled to the presumption of truth). Although Rule

8 of the Federal Rules of Civil Procedure “marks a notable and generous departure from the hyper1:09-cv-10099-TLL-CEB Doc # 21 Filed 06/17/09 Pg 5 of 12 Pg ID 149
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technical, code-pleading regime of a prior era,” it “does not unlock the doors of discovery for a

plaintiff armed with nothing more than conclusions.” Id. at 1950. “Determining whether a

complaint states a plausible claim for relief will . . . be a context-specific task that requires the

reviewing court to draw on its judicial experience and common sense.” Id. Thus, “a court

considering a motion to dismiss can choose to begin by identifying pleadings that, because they

are no more than conclusions, are not entitled to the assumption of truth.” Id. “When there are

well-pleaded factual allegations, a court should assume their veracity and then determine whether

they plausibly give rise to an entitlement to relief.” Id.

Where a plaintiff is proceeding without the assistance of counsel, the court is required to

liberally construe the complaint and hold it to a less stringent standard than a similar pleading

drafted by an attorney. Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed. 2d 652

(1972); Hahn v. Star Bank, 190 F.3d 708, 715 (6th Cir. 1999). However, courts may not rewrite

a complaint to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128 (10th

Cir. 1999), nor may courts construct the plaintiff’s legal arguments for him. Small v. Endicott, 998

F.2d 411 (7th Cir. 1993). Courts are not to “conjure up unpled allegations,” McDonald v. Hall,

610 F.2d 16, 19 (1st Cir. 1979), or to identify a claim not alleged in the complaint, Clark v. Nat’l

Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975), because to hold otherwise would

require the court “to explore exhaustively all potential claims of a pro se plaintiff, [and] would also

transform the district court from its legitimate advisory role to the improper role of an advocate

seeking out the strongest arguments and most successful strategies for a party.” Beaudett v. City

of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

The elements of a claim under 42 U.S.C. § 1983 are: (1) the violation of a right secured by

the federal Constitution or federal law that was (2) committed by a person acting under color of

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state law. West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988); Street v.

Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). 

C. Defendant Martin

Defendant Martin argues that she was not personally involved in the actions giving rise to

the complaint other than review of grievance responses, which she contends is insufficient to give

rise to potential liability under section 1983. (Doc. 16.)

It is beyond dispute that liability under § 1983 must be based on active unconstitutional

behavior, not on a failure to act. Green v. Barber, 310 F.3d 889, 899 (6th Cir. 2002); Shehee v.

Luttrell, 199 F.3d 295, 300 (6th Cir. 1999); Salehpour v. Univ. of Tenn., 159 F.3d 199, 206 (6th

Cir. 1998) (liability must be based upon active unconstitutional behavior). See also Hafer v. Melo,

502 U.S. 21, 25, 112 S. Ct. 358, 116 L. Ed. 2d 301 (1991) (stating that to establish personal

liability of a government official under § 1983, a plaintiff must show that the official caused the

deprivation of a federal right). In addition, the mere denial of a prisoner’s grievance is not

sufficient involvement to state a claim of constitutional dimension. Alder v. Correctional Medical

Servs., 73 Fed. App’x 839, 841 (6th Cir. 2003); Martin v. Harvey, 14 Fed. App’x 307, 309 (6th

Cir. 2001) (“The denial of the grievance is not the same as the denial of a request to receive

medical care.”).

Furthermore, liability under section 1983 must be based on more than merely the right to

control employees. Polk Co. v. Dodson, 454 U.S. 312, 325-26, 102 S. Ct. 445, 70 L. Ed. 2d 509

(1981); Monell v. New York City Dep’t of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed.

2d 611 (1978). A party cannot be held liable under section 1983 absent a showing that the party

personally participated in, or otherwise authorized, approved or knowingly acquiesced in, the

allegedly unconstitutional conduct. See, e.g., Leach v. Shelby Co. Sheriff, 891 F.2d 1241, 1246

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(6th Cir. 1989); Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984); Hays v. Jefferson, 668 F.2d

869, 874 (6th Cir. 1982); Kesterson v. Moritsugu, No. 96-5898, 1998 WL 321008, at **4 (6th Cir.

1998) (a plaintiff must “allege that a specific defendant performed a specific act that suffices to

state a claim”). 

The only mention of Defendant Martin in the complaint is that on “10/14/08 N. Martin

(Regional Healthcare Administrator) responded to grievance 12F2 stating this matter is under

review because of length of time and number of [my] requests.” (Doc. 1 ¶ 39 (brackets in

original).) Denial of a grievance does not render the reviewing official personally involved in the

deprivation alleged in the grievance. See Lee v. Michigan Parole Bd., 104 Fed. App’x 490, 493

(6th Cir. 2004) (“Section 1983 liability may not be imposed simply because a defendant denied

an administrative grievance or failed to act based upon information contained in a grievance”).

Therefore, I suggest that Defendant Martin’s motion to dismiss be granted. 

D. Defendants Kakani and Prasad

Defendants contend that Plaintiff’s complaint does not allege facts that state a claim for

deliberate indifference of serious medical needs. (Doc. 14.) The Supreme Court held in Estelle

v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976), that the deliberate indifference to

serious medical needs of prisoners constitutes unnecessary and wanton infliction of pain in

violation of the Cruel and Unusual Punishments Clause of the Eighth Amendment to the

Constitution. The Court explained that “[t]his conclusion does not mean, however, that every

claim by a prisoner that he has not received adequate medical treatment states a violation of the

Eighth Amendment.” Id. at 105.

The standard for deliberate indifference is two-pronged, consisting of both a subjective and

an objective element. Wilson v. Seiter, 501 U.S. 294, 111 S. Ct. 2321, 2323, 115 L. Ed. 2d 271,

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279 (1991). In order to satisfy the objective component of an Eighth Amendment claim, the

plaintiff must show that he “is incarcerated under conditions posing a substantial risk of serious

harm,” Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994), or that

he has been deprived of the “minimal civilized measure of life’s necessities,” Wilson, 501 U.S. at

298 (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S. Ct. 2392, 69 L. Ed. 2d 59 (1981)).

The Constitution “‘does not mandate comfortable prisons.’” Wilson, 501 U.S. at 298 (quoting

Rhodes, 452 U.S. at 349). Rather, “routine discomfort ‘is part of the penalty that criminal

offenders pay for their offenses against society.’” Hudson v. McMillian, 503 U.S. 1, 9, 112 S. Ct.

995, 117 L. Ed. 2d 156 (1992) (quoting Rhodes, 452 U.S. at 347).

In cases where an inmate alleges deliberate indifference but the record demonstrates that

the inmate received medical attention and is, in essence, filing suit because he disagrees with

certain treatment decisions made by the medical staff, the defendant is entitled to summary

judgment. 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 of the treatment, federal

courts are generally reluctant to second guess medical judgments and to constitutionalize claims

which sound in state tort law”); McFarland v. Austin, 196 Fed. App’x 410, 411 (6th Cir. 2006) (“as

the record reveals that McFarland has received some medical attention and McFarland’s claims

involve a mere difference of opinion between him and medical personnel regarding his treatment,

McFarland does not state a claim under the Eighth Amendment”); White v. Correctional Medical

Services, 94 Fed. App’x 262 (6th Cir. 2004) (where the essence of plaintiff’s claims was that he

disagreed with the defendants’ approaches to his medical treatment, dismissal of complaint for

failure to state a claim was affirmed); Selby v. Martin, 84 Fed. App’x 496, 499 (6th Cir. 2003)

(“the record reveals that [plaintiff] not only received a medical evaluation by a nurse and a

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physician, he also received instructions with regard to daily care of his abrasions. Thus, the record

clearly reveals a competent and conscientious course of medical treatment, and [plaintiff’s]

dissatisfaction with his treatment does not state a claim under the Eighth Amendment”).

Here, it is undisputed that Plaintiff received frequent medical attention. Plaintiff’s

complaint avers that he was seen by nurses or the physician’s assistant over a dozen times between

May and August of 2008 for his eczema. Plaintiff does not allege that he was denied medication,

but rather complains that he was not given “Kenalog” in the quantity he requested and instead was

given a generic topical cream. I suggest that Plaintiff’s complaint reveals nothing more than a

difference of opinion as to the treatment of his eczema which is insufficient to state a claim for

deliberate indifference in violation of the Eighth Amendment. See also Davies v. Low, 297 Fed.

App’x 634, 635 (9th Cir. 2008) (affirming summary judgment because difference of opinion

regarding proper treatment of eczema did not constitute deliberate indifference); Matthews v.

Palte, 282 Fed. App’x 770, 771 (11th Cir. 2008) (complaint that psoriasis was mistreated with the

wrong cream did not state a claim for deliberate indifference); Gossage v. Oldenkamp, No. 94-

35429, 1994 WL 594708 (9th Cir. Oct. 31, 1994) (treatment of inmate’s psoriasis with topical

cream did not amount to deliberate indifference despite inmate’s request for ultraviolet light

treatment).

I further suggest that the Eighth Amendment is not violated when an inmate disagrees with

the type of drug prescribed, i.e., specific brand name versus generic, even if the decision is made

based on cost rather than effectiveness and even if the generic drug is less effective. DeBoer v.

Luy, 70 Fed. App’x 880, 883 (2003) (summary judgment properly granted because doctor did not

act with deliberate indifference when he disagreed with prescription written by ENT specialist and

instead prescribed a generic drug to treat inmate’s ear infection); Williams v. Ulep, No. 3-06cv730,

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Defendant Martin also argues that she is entitled to qualified immunity but since no constitutional violation

is stated, there is no need to apply the qualified immunity analysis.

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2008 WL 5459776, at *3 (E.D. Va. Mar. 17, 2008) (“Plaintiff’s unhappiness with his course of

treatment is not sufficient to establish deliberate indifference because Plaintiff clearly was

receiving some treatment, even if it was cheaper or not as effective as the treatment Plaintiff

desired”); Legler v. Bruce, No. 06-3311-SAC, 2007 WL 4241845, at *2 (D. Kan. Nov. 27, 2007)

(prescribing generic medication to cut costs does not amount to deliberate indifference); Jilk v.

Frank, No. 07-C-569, 2007 WL 2053344, at *2 (E.D. Wis. July 16, 2007) (“the mere fact that

treatment with the generic equivalent to Lamical and another drug did not work is not enough to

state a claim for deliberate indifference”); Brightwell v. Lehman, No. 03-205J, 2006 WL 931702,

at *8 (W.D. Pa. Apr. 10, 2006) (“Even assuming that Plaintiff is correct and he was given a generic

substitute, disagreement over which drugs to administer simply does not demonstrate the deliberate

indifference necessary to state an Eighth Amendment claim”).

Therefore, I suggest that Plaintiff has failed to state a claim of deliberate indifference in

violation of the Eighth Amendment and that Defendants’ motion to dismiss should be granted.2

E. Conclusion

Accordingly, I suggest that the motions to dismiss be granted and that the case be dismissed

in its entirety with prejudice.

III. REVIEW

The parties to this action may object to and seek review of this Report and Recommendation

within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1). Failure

to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474

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U.S. 140, 106 S. Ct. 466, 88 L. Ed.2d 435 (1985); Howard v. Sec’y of Health & Human Servs., 932

F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). The parties are

advised that making some objections, but failing to raise others, will not preserve all the objections

a party may have to this Report and Recommendation. Willis v. Sec’y of Health & Human Servs.,

931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370,

1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be

served upon this Magistrate Judge.

 s/ Charles` E Binder 

CHARLES E. BINDER 

Dated: June 17, 2009 United States Magistrate Judge

CERTIFICATION

I hereby certify that this Report and Recommendation was electronically filed this date,

electronically served upon counsel of record via the Court’s ECF system, and was mailed by the U.S.

Postal Service to the following non-ECF participant: Derrick Allison #416330, Alger Maximum

Correctional Facility, Industrial Park Drive, P.O. Box 600, Munising, MI 49862.

Date: June 17, 2009 By s/Patricia T. Morris 

Law Clerk to Magistrate Judge Binder

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