United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION AND ORDER
R. ADAMS, UNITED STATES DISTRICT JUDGE
se Plaintiff Richard Austin White filed this action
against Lorain Correctional Institution (“LORCI”)
Advanced Licensed Practitioner Ray Lengel. In the Complaint,
Plaintiff alleges his current pain medication is causing hair
loss as a side effect and Defendant refuses to switch the
medication to Ultram. He asserts the Defendant is
deliberately indifferent to his serious medical needs in
violation of the Eighth Amendment. He seeks monetary damages
and an order requiring the Defendant to prescribe Ultram.
a prisoner at LORCI, contends the Defendant provides him with
chronic care for Hepatitis C and knee pain. He claims that
during his appointment on January 10, 2019, he informed the
Defendant that his current pain levels were beyond the relief
his current medication, Tegritol, could provide. Furthermore,
Tegritol was causing hair loss as a side effect. Plaintiff
requested that he be placed on Ultram, a medication he had
found to be effective in the past. He states the Defendant
denied his request, explaining that Ultram is no longer
provided by the Ohio Department of Corrections. Plaintiff asked
for steroid shots to address the hair loss but Defendant
denied them stating the hair loss was cosmetic. He asked for
another MRI and Defendant denied this request. Plaintiff
contends the only options Defendant gave him were to stay on
Tegritol and suffer hair loss, or to discontinue that
medication and suffer increased pain levels. He claims the
Ultram worked well for him in the past and the Defendant is
deliberately indifferent to his serious medical needs by
refusing to order it for him to replace his current
Standard of Review
pro se pleadings are liberally construed, Boag
v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam);
Haines v. Kerner, 404 U.S. 519, 520 (1972), the
district court is required to dismiss an in forma
pauperis action under 28 U.S.C. § 1915(e) if it
fails to state a claim upon which relief can be granted, or
if it lacks an arguable basis in law or fact. Neitzke v.
Williams, 490 U.S. 319 (1989); Lawler v.
Marshall, 898 F.2d 1196 (6th Cir. 1990); Sistrunk v.
City of Strongsville, 99 F.3d 194, 197 (6th Cir. 1996).
A claim lacks an arguable basis in law or fact when it is
premised on an indisputably meritless legal theory or when
the factual contentions are clearly baseless.
Neitzke, 490 U.S. at 327. A cause of action fails to
state a claim upon which relief may be granted when it lacks
“plausibility in the complaint.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 564 (2007).
pleading must contain a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” Ashcroft v. Iqbal, 556 U.S. 662,
677-78 (2009). The factual allegations in the pleading must
be sufficient to raise the right to relief above the
speculative level on the assumption that all the allegations
in the complaint are true. Twombly, 550 U.S. at 555.
The Plaintiff is not required to include detailed factual
allegations, but must provide more than “an unadorned,
the defendant unlawfully harmed me accusation.”
Iqbal, 556 U.S. at 678. A pleading that offers legal
conclusions or a simple recitation of the elements of a cause
of action will not meet this pleading standard. Id.
In reviewing a Complaint, the Court must construe the
pleading in the light most favorable to the Plaintiff.
Bibbo v. Dean Witter Reynolds, Inc., 151 F.3d 559,
561 (6th Cir. 1998).
Eighth Amendment imposes a constitutional limitation on the
power of the states to punish those convicted of crimes.
Punishment may not be “barbarous” nor may it
contravene society's “evolving standards of
decency.” Rhodes v. Chapman, 452 U.S. 337, 346
(1981). The Eighth Amendment protects inmates by requiring
that “prison officials ... ensure that inmates receive
adequate food, clothing, shelter, and medical care, and ...
‘take reasonable measures to guarantee the safety of
the inmates.' ” Farmer v. Brennan, 511
U.S. 825, 832 (1994)(quoting Hudson v. Palmer, 468
U.S. 517, 526-27 (1984)). This, however, does not mandate
that a prisoner be free from discomfort or inconvenience
during his or her incarceration. Ivey v. Wilson, 832
F.2d 950, 954 (6th Cir. 1987) (per curiam) (quoting
Rhodes, 452 U.S. at 346). Prisoners are not entitled
to unfettered access to the medical treatment of their
choice, see Hudson v. McMillian, 503 U.S. 1, 9
(1992), nor can they “expect the amenities,
conveniences and services of a good hotel.” Harris
v. Fleming, 839 F.2d 1232, 1235 (7th Cir. 1988);
see Thaddeus-X v. Blatter, 175 F.3d 378,
405 (6th Cir. 1999). In sum, the Eighth Amendment affords the
constitutional minimum protection against conditions of
confinement which constitute health threats, but does not
address those conditions which cause the prisoner to feel
merely uncomfortable or which cause aggravation or annoyance.
Hudson, 503 U.S. at 9-10 (requiring extreme or grave
Supreme Court in Wilson v. Seiter, 501 U.S. 294, 298
(1991), set forth a framework for courts to use when deciding
whether certain conditions of confinement constitute cruel
and unusual punishment prohibited by the Eighth Amendment. A
plaintiff must first plead facts which, if true, establish
that a sufficiently serious deprivation has occurred.
Id. Seriousness is measured in response to
“contemporary standards of decency.”
Hudson, 503 U.S. at 8. Routine discomforts of prison
life do not suffice. Id. Only deliberate
indifference to serious medical needs or extreme deprivations
regarding the conditions of confinement will implicate the
protections of the Eighth Amendment. Id. at 9. A
Plaintiff must also establish a subjective element showing
the prison officials acted with a sufficiently culpable state
of mind. Id. Deliberate indifference is
characterized by obduracy or wantonness, not inadvertence or
good faith error. Whitley v. Albers, 475 U.S. 312,
319 (1986). Liability cannot be predicated solely on
negligence. Id. A prison official violates the
Eighth Amendment only when both the objective and subjective
requirements are met. Farmer v. Brennan, 511 U.S.
825, 834 (1994).
context of a claim regarding medical treatment, it is clear
that the duty to provide a certain level of health care to
incarcerated offenders under the Eighth Amendment is a
limited one. “Not ‘every ache and pain or
medically recognized condition involving some discomfort can
support an Eighth Amendment claim.'” Sarah v.
Thompson, No. 03-2633, 2004 WL 2203585 (6th Cir. Sept.
15, 2004) (quoting Gutierrez v. Peters, 111 F.3d
1364, 1372 (7th Cir. 1997)). Furthermore, a difference of
opinion regarding the medical diagnosis and treatment
provided do not rise to the level of an Eighth Amendment
violation. Estelle v. Gamble, 429 U.S. 97, 107
(1976). Where the Plaintiff has received some medical
attention, but disputes the adequacy of that treatment, a
federal court will not second-guess the medical judgments of
prison officials and constitutionalize claims which fall
within the parameters of state tort law. Westlake v.
Lucas, 537 F.2d 857, 860 n. 5. (6th Cir. 1976). A
medical professional providing treatment to an inmate will
not be considered to be deliberately indifferent to the
inmate's medical needs unless the treatment is “so
grossly incompetent, inadequate, or excessive as to shock the
conscience or to be intolerable to fundamental
fairness.” Terrance v. Northville Regional
Psychiatric Hosp., 286 F.3d 834, 844 (6th Cir. 2002).
case, Plaintiff wants to take Ultram instead of Tegritol for
pain. He claims Tegritol no longer provides enough pain
relief and is causing him to experience hair loss as a side
effect. Defendant indicated Plaintiff already was taking the
strongest pain medication that the ODRC offers. Plaintiff
disagreed and suggested Ultram, because it had been an
effective pain reliever for him in the past. Defendant
informed him the ODRC no longer approves or provides Ultram
so it is not available. Plaintiff does not believe this
statement and indicates Defendant could get it for him
against ODRC policy if he made a good case that Plaintiff
a difference of opinion about the course of treatment.
Plaintiff does not have an Eighth Amendment right to the pain
medication of his choice. See Thomas v. Coble, 55
Fed.Appx. 748, 749 (6th Cir. 2003) (holding that plaintiff
and defendant clearly disagreed over the preferred medication
(Ultram) to treat Defendant's pain but that “this
difference of opinion does not support an Eighth Amendment
violation.”). While hair loss may be an unpleasant side
effect of his current medication, it is not sufficiently
serious in itself to trigger Eighth Amendment concerns.
Defendant's decision to treat Plaintiff's pain with
the strongest available medication despite its side effects
does not rise to the level of an Eighth Amendment violation.