UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

ANTHONY CLARK,

Plaintiff, CASE NO. 09-CV-12717

v. DISTRICT JUDGE DENISE PAGE HOOD

MAGISTRATE JUDGE CHARLES E. BINDER

NURSE SCOTT, HEALTH SERVICE

ADMINISTRATOR NAVIDA,

NURSE FORTUNE, UNITED

STATES OF AMERICA, DOCTOR

MALATINSKY,

Defendants. 

/

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

PURSUANT TO 28 U.S.C. §§ 1915A(b), 1915e(2)(B), & 42 U.S.C. § 1997e(c)(1)

I. RECOMMENDATION

For the reasons set forth below, IT IS RECOMMENDED that the case be sua sponte

DISMISSED for failure to state a claim upon which relief may be granted.

II. REPORT

A. Introduction

Plaintiff Anthony Clark is a federal prisoner who is incarcerated at the Federal Correctional

Institution in Milan, Michigan. On July 9, 2009, Plaintiff filed a pro se prisoner civil rights

complaint pursuant to Bivens v. Six Unknown Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d

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A Bivens action is a “judicially created damages remedy designed to vindicate violations of constitutional

rights by federal actors.” Yeager v. General Motors Corp., 265 F.3d 389, 398 (6th Cir. 2001). It is “the federal

analog to suits brought against state officials under . . . 42 U.S.C. § 1983.” Hartman v. Moore, 547 U.S. 250, 255

n.2, 126 S. Ct. 1695, 164 L. Ed. 2d 441 (2006). 

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619 (1971),1

 asserting that his Eighth Amendment right to not have his serious medical needs met

with deliberate indifference was violated.

Plaintiff’s application to proceed without prepayment of fees pursuant to the in forma

pauperis statute, 28 U.S.C. § 1915(a)(1), was granted on July 16, 2009. On August 7, 2009, U.S.

District Judge Denise Page Hood referred all pretrial matters to the undersigned magistrate judge.

After screening the pro se complaint pursuant to 28 U.S.C. §§ 1915A(b), 1915e(2)(B), and 42

U.S.C. § 1997e(c)(1), I conclude that the case is ready for Report and Recommendation.

B. Governing Law

This case is subject to screening under several provisions of the United State Code.

Pursuant to 28 U.S.C. § 1915A, 28 U.S.C. § 1915(e), and 42 U.S.C. § 1997e(c)(1), the Court is to

sua sponte dismiss a case if it determines that the action is frivolous or malicious, fails to state a

claim upon which relief can be granted, or seeks monetary relief against a defendant who is

immune from such relief.

Further, the law in this circuit is clear that the district court, in performing its initial

review, should only consider the complaint and that the plaintiff should not be given

the opportunity to amend to avoid sua sponte dismissal. Baxter v. Rose, 305 F.3d

486, 489 (6th Cir. 2002); McGore v. Wrigglesworth, 114 F.3d 601, 612 (6th Cir.

1997).

Baker v. Thomas, 86 Fed. App’x 906, 909 (6th Cir. 2004). Likewise, a plaintiff may not repair a

complaint’s fatal deficiencies by correcting them in his or her objections to a report and

recommendation. See Williams v. Lowe, No. 1:08-CV-375, 2008 WL 5411838, at *1 (W.D. Mich.

Dec. 23, 2008). “If a complaint falls within the requirements of § 1915(e)(2) when filed, the

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district court should sua sponte dismiss the complaint.” McGore, 114 F.3d at 612 (emphasis

added).

When the court screens a complaint 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). Rule

8(a) sets forth the basic federal pleading requirement that a complaint “shall contain . . . a short and

plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a).

Rule 8 requires “that the complaint give the defendant fair notice of the claim and its supporting

facts.” E.E.O.C. v. J.H. Routh Packing Co., 246 F.3d 850, 854 (6th Cir. 2001). Despite this

relatively low threshold, a complaint must nevertheless contain more than legal labels, conclusions,

and a recitation of the elements of a cause of action; it must also contain “enough facts to state a

claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570,

127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007). However, 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” 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).

C. Plaintiff’s Allegations

Plaintiff states that on Saturday, October 4, 2008, he experienced severe numbing and

tingling pain on his left side, so he went to healthcare. There he was seen by Defendant Nurse

Scott, who performed an electrocardiogram (“EKG”). (Compl. at 3.) Plaintiff alleges that Nurse

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Scott telephoned a physician’s assistant at home because she did not know how to read the EKG

printout, and then she sent Plaintiff back to his unit and told him to come to sick call on Monday.

(Id.) Plaintiff states that when he went back to healthcare on Monday, another EKG was

performed, he was transferred to a hospital, and was diagnosed as having had a heart attack.

Plaintiff claims that he was told that his “heart attack started Saturday.” (Id.) He states that now

he has irreversible heart damage. (Id.)

As relief, Plaintiff seeks to have the employment of everyone associated with his medical

care terminated, lifetime healthcare provided, and $1 million from the employees personally and

from the United States as their employer. (Id.)

D. Analysis and Conclusions

1. Defendants Navida, Fortune and Malatinsky

The Supreme Court has made it clear that a plaintiff “must plead that each

Government-official defendant, through the official’s own individual actions, has violated the

Constitution.” Ashcroft v. Iqbal, ___U.S.___, 129 S. Ct. 1937, 1948 (2009). See also Rizzo v.

Goode, 423 U.S. 362, 371-72, 377, 96 S. Ct. 598, 46 L. Ed. 2d 561 (1976) (a plaintiff must allege

that he suffered a specific injury as a result of the conduct of a particular defendant and he must

allege an affirmative link between the injury and the conduct of that defendant). In this case, there

are no allegations made in the complaint against Defendant Nurse Fortune, Defendant Navida, the

Health Service Administrator, or Defendant Malatinsky, a staff doctor. Indeed, their names only

appear where Plaintiff listed the names of the defendants. Accordingly, I suggest that Plaintiff has

failed to state a claim against these defendants and that they be sua sponte dismissed.

 Additionally, to the extent that Plaintiff has sued Defendants Navida and Malatinsky

because of their supervisory positions over Nurse Scott, I suggest that the result does not change.

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To state a claim against a supervisory official, the civil rights complainant must allege that the

supervisory official personally participated in the constitutional deprivation or that the supervisory

official was aware of widespread abuses and, with deliberate indifference to the inmate’s

constitutional rights, failed to take action to prevent further misconduct. See Monell v. New York

City Dep’t of Social Services, 436 U.S. 658, 691-92, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978).

There is no respondeat superior liability available, and therefore, a defendant’s position as the

supervisor of persons who allegedly violated a plaintiff’s constitutional rights does not impose

liability. Monell, 436 U.S. at 691-92. Here, where Plaintiff has not alleged that Defendants

Navida and Malatinsky personally participated in unconstitutional conduct or that they were aware

of widespread abuses yet did nothing, I suggest that Plaintiff has failed to state a claim under

Monell.

2. Defendant Scott

Plaintiff alleges that Defendant Nurse Scott saw him on October 4, 2008, performed an

EKG, and sent him back to his unit. Liberally construed, Plaintiff is alleging that Nurse Scott

failed to diagnose that he was having a heart attack and take the appropriate action. He thus claims

that his right to adequate medical care was violated.

A prisoner’s claim of inadequate medical care falls under the Eighth Amendment’s

provision that “cruel and unusual punishments [shall not be] inflicted.” U.S. Const. amend VIII.

This amendment requires that convicted prisoners be provided “the minimal civilized measure of

life’s necessities.” Rhodes v. Chapman, 452 U.S. 337, 347, 101 S. Ct. 2392, 2399, 69 L. Ed. 2d

59 (1981). “A prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to an

inmate violates the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 828, 114 S. Ct. 1970,

128 L. Ed. 2d 811 (1994). However, liability exists “only if [the defendant] knows that inmates

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face a substantial risk of serious harm and disregards that risk by failing to take reasonable

measures to abate it.” Id. at 847. “Deliberate indifference . . . does not include negligence in

diagnosing a medical condition.” Sanderfer v. Nichols, 62 F.3d 151, 154 (6th Cir. 1995). Even

if plaintiff’s medical treatment was allegedly deficient in some manner, “[m]edical malpractice

does not become a constitutional violation merely because the victim is a prisoner.” Estelle v.

Gamble, 429 U.S. 97, 105-06, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976). See also Westlake v. Lucas,

537 F.2d 857, 860 n.5 (6th Cir. 1976) (“[w]here 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, where Plaintiff acknowledges that he received medical attention but claims that it was

negligent or inadequate, he is alleging a medical malpractice claim which does not rise to the level

of an Eighth Amendment violation pursuant to Estelle and Westlake. Accordingly, I suggest that

Plaintiff has failed to state a claim against Defendant Nurse Scott and that she should be sua sponte

dismissed.

3. Defendant United States

Although Plaintiff does not mention the Federal Torts Claim Act (“FTCA”) in his

complaint, a liberal reading of the complaint could encompass such a claim. The FTCA provides

a limited waiver of sovereign immunity making the United States liable for injury “caused by the

negligent or wrongful act or omission of any employee of the Government while acting within the

scope of his office or employment,” under circumstances where the United States, if a private

person, would be liable to the claimant in accordance with the law of the place where the act or

omission occurred. 28 U.S.C. § 1346(b).

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However, in order for this Court to exercise jurisdiction over a claim brought pursuant to

the FTCA, a prisoner must have exhausted the Bureau of Prisons’ administrative remedy program,

see 28 C.F.R. §§ 543.10-19, and second, a prisoner must have filed an administrative claim with

the regional office. See 28 C.F.R. §§ 543.30-32; 28 U.S.C. § 2675(a). The administrative claim

prerequisite is a jurisdictional requirement that cannot be waived. See Rogers v. United States, 675

F.2d 123, 124 (6th Cir. 1982); Juide v. City of Ann Arbor, 839 F. Supp. 497, 508 (E.D. Mich.

1993). Thus, unlike the exhaustion requirement of the Prison Litigation Reform Act, 42 U.S.C.

§ 1997e(a), which is not jurisdictional and is therefore an affirmative defense, the burden is on the

plaintiff seeking recovery under the FTCA to plead facts demonstrating presentment of an

administrative claim pursuant to 28 U.S.C. § 2675. See McNutt v. General Motors Acceptance

Corp., 298 U.S. 178, 182, 56 S. Ct. 780, 782, 80 L. Ed. 1135 (1936); Celestine v. Mount Vernon

Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir. 2005); In Re Agent Orange Prod. Liability

Litig., 818 F.2d 210, 214 (2d Cir. 1987); Bruce v. United States, 621 F.2d 914, 918 (8th Cir. 1980).

In the absence of such compliance, a district court has no subject matter jurisdiction over a

plaintiff’s claim. Wyler v. United States, 725 F.2d 156, 159 (2d Cir. 1983). 

In this case, Plaintiff has not pleaded facts to indicate that he presented an administrative

claim prior to filing suit. Accordingly, I suggest that to the extent the complaint could be read to

include a claim under the FTCA, this Court lacks subject matter jurisdiction and therefore I further

suggest that the case be sua sponte dismissed in its entirety.

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

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

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: September 3, 2009 United States Magistrate Judge

CERTIFICATION

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

served by first class mail on Anthony Clark, #10813-424, at FCI Milan, P.O. Box 1000, Milan, MI,

48160; and served on District Judge Hood in the traditional manner.

Date: September 3, 2009 By s/Jean L. Broucek 

Case Manager to Magistrate Judge Binder

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