Moore v. Prunick, Case No. 2:15-cv-143

ANTHONY LAMONT MOORE, Plaintiff, v. KAREN PRUNICK, et al., Defendants.

Case No. 2:15-cv-143

UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN NORTHERN DIVISION

June 23, 2016

Honorable R. Allan Edgar

OPINION

This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983. The Court has granted Plaintiff leave to proceed in forma pauperis. Under the Prison Litigation Reform Act, PUB. L. NO. 104-134, 110 STAT. 1321 (1996), the Court is required to dismiss any prisoner action brought under federal law if the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant immune from such relief. 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c). The Court must read Plaintiff's pro se complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and accept Plaintiff's allegations as true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992). Applying these standards, the Court will dismiss Defendants Trierweiler, Lamb, Kimsel, Bauman, Denman, Lancor, Rutter, Bonevelle, Lindemuth, CMS, Westcomb, Bonefeld, Carlson, and Jane and John Doe Nurses from this action. In addition, the Court will dismiss Plaintiff's due process claims against Defendants Lagina, Schram, and Semansky. The Court will further dismiss Plaintiff's Eighth Amendment claims against Defendants Scott, McTiver, and Prunick. Finally, the Court will serve the complaint against Defendants Semansky, Lagina, Prunick, Schram, Rasmussen, Thomma, McTiver, and Scott with regard to Plaintiff's retaliation claims.

Discussion

I. Factual allegations

Plaintiff Anthony Lamont Moore, a state prisoner currently confined at the Ojibway Correctional Facility (OCF), filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 against Defendants Assistant Resident Unit Supervisor Karen Prunick, Assistant Resident Unit Supervisor Unknown Schram, Assistant Resident Unit Supervisor Unknown Lancor, Assistant Resident Unit Supervisor Unknown Denman, Resident Unit Manager Tammy Lindenmuth, Warden Catherine Bauman, Inspector Unknown Rutter, Corrections Officer Unknown Rasmussen, Corrections Officer Unknown Thomma, Corrections Officer Unknown Lagina, Corrections Officer Unknown Semansky, Grievance Coordinator Unknown Trierweiler, Grievance Coordinator Unknown Bonevelle, Dr. Unknown Bonefeld, Physician's Assistant Amy Westcomb, Nurse Unknown Carlson, Nurse Unknown McTiver, Nurse Unknown Scott, Nurse John Kimsel, Nurse Patricia Lamb, CMS, and Unknown Parties named as John and Jane Doe Nurses. Plaintiff claims that Defendants were employed at the Alger Maximum Correctional Facility (LMF) during the pertinent time period.

Plaintiff's complaint consists of 110 pages of narrative, and 156 pages of exhibits. In his complaint, Plaintiff asserts that during 2013 and 2014, while he was confined at the Alger Maximum Correctional Facility (LMF), the named Defendants engaged in a variety of misconduct in violation of his rights under the First, Eighth and Fourteenth Amendments to the United States Constitution, as well as under state law.

Plaintiff alleges that from October 4, 2013, until October 13, 2013, he sent numerous medical kites to CMS [Correctional Medical Services, now Corizon Correctional Healthcare], requesting medical care for symptoms of chest pain, coughing up blood, and blood in his stool. Plaintiff did not receive a response, so he filed a grievance, which was denied by Defendant Scott, who refused to look at video evidence on Plaintiff's behalf. Plaintiff later discovered that health care personnel logged in the electronic medical record that Plaintiff had been seen on October 8, 17, and 24 of 2013. Plaintiff claims that the only time he was actually seen by health care was on October 24, 2013. Plaintiff states that on October 8 and 17, 2013, he went to pick up medication for his acid reflux, at which time Defendant McTiver refused to examine Plaintiff and told him to send a kite regarding his complaints. Plaintiff explained that he had already done so, and Defendant McTiver told him to send another.

From October 14, 2013, to October 17, 2013, Plaintiff sought assistance from Defendant Prunick, who stated that Plaintiff was still alive and that he should kite medical. Plaintiff filed a grievance on Defendant Prunick. On October 17, 2013, Plaintiff had a family member call MDOC administration in Lansing regarding Plaintiff's inability to get health care. Administration called the prison and Plaintiff was seen by Defendant Westcomb on October 18, 2013. Defendant Westcomb told Plaintiff that a medication had been ordered for the blood in Plaintiff's stool. It turned out that this was Hydrocortisone Acetate Suppositories for hemorrhoids, which Plaintiff did not have. When Plaintiff asked why he was coughing up blood, Defendant Westcomb stated that she did not know. On October 19, 2013, Plaintiff picked up test cards to check for blood in his stool. On October 24, 2013, the test revealed that Plaintiff did have blood in his stool. Defendant Westcomb gave Plaintiff some hemorrhoid pads and told Plaintiff that he should be receiving theHydrocortisone Acetate Suppositories the next day. Plaintiff asserts that Defendant Westcomb never performed any tests to determine the blood in his stool was the result of hemorrhoids. Defendant Westcomb continued to ignore Plaintiff's complaints of chest pain and coughing up blood.

On October 26, 2013, Plaintiff sent a letter to Defendant Bonefeld explaining his symptoms and seeking assistance. On October 28, 2013, a nurse gave Plaintiff Tylenol and scheduled him to see the doctor. On October 31, 2013, Plaintiff was seen by Defendant Bonefeld, who diagnosed Plaintiff with bronchitis and hemoptysis and prescribed Azithromycin. Defendant Bonefeld also gave Plaintiff a cup and told him to provide a sputum sample for testing. During the month of October, Plaintiff's cell was shaken down numerous times. Plaintiff states that this had not occurred prior to him writing grievances on health care.

On November 2, 2013, Plaintiff turned in his sputum sample. On November 4, 2013, Plaintiff sent a letter to Defendant Bonefeld complaining of worsening pain in chest. On November 5, 2013, Plaintiff found his property was all over the floor and his legal papers in the garbage can. On November 6, 2013, Plaintiff was called out to provide another sputum sample because his first sample had been lost. Plaintiff's cell was tossed on November 6, 2013, November 8, 2013, November 10, 2013, and November 13, 2013. On November 9, 2013, Plaintiff found a homemade knife or shank planted in his cell. Plaintiff believes this was planted to set him up on a misconduct charge. Plaintiff wrote letters to Defendant Bonefeld on November 6, 2013, and November 10, 2013, seeking medical attention. Plaintiff filed a grievance regarding the fact that he had still not gotten x-rays. This grievance was denied at each level.

On November 15, 2013, Defendant Bonefeld met with Plaintiff and informed him that he had two types of bacteria in his body, which could cause death if left untreated. These bacteriawere Klebsiella Oxytoca and Serratia Marcescen, and had been discovered after testing Plaintiff's sputum. Defendant Bonefeld told Plaintiff that he was going to prescribe a strong antibiotic and pain medication, and order an x-ray. On November 17, 2013, Plaintiff filed a grievance on Defendants Bonefeld and Westcomb, asserting malpractice because they had initially diagnosed him with hemorrhoids and bronchitis. On November 18, 2013, Plaintiff received Ciprofloxacin HCL.

On November 22, 2013, Plaintiff sent a letter of complaint to Defendant Bauman, but received no response. On November 25, 2013, Plaintiff sent a letter of complaint to the Ombudsman, but was told that there was nothing that could be done. Plaintiff claims that Defendant Trierweiler interfered with Plaintiff's grievances by removing attachments. Plaintiff's grievance was never processed by Defendant Trierweiler. On November 28, 2013, Defendant Semansky told Plaintiff that he and Defendant Lagina had tossed Plaintiff's legal property in the garbage during cell shakedowns on numerous occasions. When asked, Defendant Lagina told Plaintiff that he could not prove it. On December 2, 2013, Plaintiff sent a letter to Defendant Trierweiler asking to add the names of Defendants Semansky and Lagina to the grievance that he had submitted on November 18, 2013. Plaintiff also requested video from November 27, 2013, to December 1, 2013, as evidence of staff misconduct. Plaintiff did not receive a response.

Plaintiff filed grievances on November 25 and 26 of 2013, but did not receive a response or a receipt. On December 5, 2013, Plaintiff attempted to file an amended grievance regarding his November 18, 2013, grievance. Plaintiff also resubmitted his November 25, 2013, grievance. These grievances were not processed. On December 9, 2013, Plaintiff resubmitted his December 5, 2013, grievance, but it was rejected by Defendant Trierweiler. On December 10, 2013, Defendant Prunick refused to send out Plaintiff's legal mail, saying that she was busy.Approximately two hours later, Plaintiff asked Defendant Prunick to mail out his legal mail, but she stated that she was still busy. Defendant Prunick then told Plaintiff that he should not have written "that grievance," referring to a grievance that Plaintiff had filed on Defendant Prunick in October of 2013, for the denial of medical care. Plaintiff filed a grievance regarding Defendant Prunick's refusal to send his mail, which was denied at step I by Defendant Schram. However, Defendant Schram sent Plaintiff's legal mail out for him on December 10, 2013.

On December 11, 2013, Plaintiff sent a kite seeking medical attention and asserting that the "two types of bacteria" in his body had gotten worse. Plaintiff...