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Willard v. Ohio Department of Rehabilitation And Correction

United States District Court, S.D. Ohio, Eastern Division

December 5, 2019

CHRISTOPHER WILLARD, Plaintiff,
v.
OHIO DEPARTMENT OF REHABILITATIONS & CORRECTIONS, et al., Defendants.

          Judge Algenon L. Marbley

          ORDER AND REPORT AND RECOMMENDATION

          CHELSEY M. VASCURA, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Christopher Willard, an Ohio inmate who is proceeding without the assistance of counsel, brings this civil rights action under 42 U.S.C. § 1983 against the Ohio Department of Rehabilitations and Corrections (“ODRC”), Belmont Correctional Institution (“BCI”), and ODRC physician Dr. Eddy, alleging that Defendants' decisions regarding his medical treatment were negligent and in violation of the Eighth Amendment and an order from the Cuyahoga County Court of Common Pleas. This matter is before the Court for the initial screen of Plaintiff's Complaint under 28 U.S.C. §§ 1915(e)(2) and 1915A to identify cognizable claims and to recommend dismissal of Plaintiff's Complaint, or any portion of it, which is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2); see also McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997). Having performed the initial screen, for the reasons that follow, the undersigned RECOMMENDS that the Court DISMISS Plaintiff's federal claims pursuant to § 1915(e)(2) for failure to state a claim on which relief may be granted and DISMISS his state-law claims WITHOUT PREJUDICE.

         This matter is also before the Court for consideration of Plaintiff's motions for leave to proceed in forma pauperis under 28 U.S.C. § 1915(a)(1) and (2), which are GRANTED. (ECF Nos. 2 and 4.) Plaintiff is required to pay the full amount of the Court's $350 filing fee. 28 U.S.C. § 1915(b)(1). Plaintiff's certified trust fund statements reveal that he cannot pay the filing fee because he currently possesses no money in his prison account.

         Pursuant to 28 U.S.C. § 1915(b)(1), the custodian of Plaintiff's inmate trust accounts (Inmate Id. Number A651822) at Belmont Correctional Institution is DIRECTED to submit to the Clerk of the United States District Court for the Southern District of Ohio as an initial partial payment, 20% of the greater of either the average monthly deposits to the inmate trust account or the average monthly balance in the inmate trust account, for the six-months immediately preceding the filing of the Complaint.

         After full payment of the initial, partial filing fee, the custodian shall submit 20% of the inmate's preceding monthly income credited to the account, but only when the amount in the account exceeds $10.00 until the full fee of $350.00 has been paid to the Clerk of this Court. 28 U.S.C. § 1915(b)(2). See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).

         Checks should be made payable to: Clerk, United States District Court. The checks should be sent to:

Prisoner Accounts Receivable 260 U.S. Courthouse 85 Marconi Boulevard Columbus, Ohio 43215

         The prisoner's name and this case number must be included on each check.

         It is ORDERED that Plaintiff be allowed to prosecute his action without prepayment of fees or costs and that judicial officers who render services in this action shall do so as if the costs had been prepaid. The Clerk of Court is DIRECTED to mail a copy of this Order to Plaintiff and the prison cashier's office. The Clerk is further DIRECTED to forward a copy of this Order to the Court's financial office in Columbus.

         I.

         According to the Complaint, in November 2014, Judge Stephen Gall of the Cuyohoga County Court of Common Pleas sentenced Plaintiff to a term of incarceration of eight years and ordered that ODRC dispense the medication Enbrel to Plaintiff. In March 2015, ODRC sent Plaintiff to a rheumatologist at The Ohio State University (“OSU”). The OSU physician diagnosed Plaintiff with rheumatoid arthritis and psoriasis and recommended that Plaintiff be prescribed Enbrel, Methotrexate, and Mobic. Thereafter, ODRC approved Plaintiff to receive Enbrel and continued to dispense Enbrel to him for more than four years, until October 25, 2019, when Defendant Dr. Eddy informed Plaintiff that ODRC discontinued his medication. Plaintiff alleges that ODRC Nurse Practitioner McNally and ODRC Healthcare Administrator Mr. Murphy met with him on October 31, 2019, and informed him that he would instead be prescribed Naproxen and Elavil. According to Plaintiff, his condition “is not curable” but only treatable, and ODRC's decision to prescribe him Naproxen and Elavil instead of Enbrel “is not [providing] any form of treatment.” (Pl.'s Compl. 8, ECF No. 4-1 at PAGEID # 45 (emphasis in original).) Plaintiff alleges that the side effects for his preferred medication “really only include lymphoma and liver toxicity, ” and he speculates that if he does not receive Enbrel, he “will suffer” a number of symptoms, including joint deformities, joint stiffness, flexion contractures, ulnar deviation of the fingers, hammer toe deformity, morning stiffness, chronic pain, loss of sleep, depression, and weakening of his joints and body. (Id. at PAGEID # 46.)

         Plaintiff filed a Motion for Emergency Injunctive Relief on November 8, 2019, but neglected to attach a complaint, prompting the Court to put on a Notice of Deficiency (ECF No. 3) giving Plaintiff until November 26 to file a Complaint. Plaintiff timely filed a Complaint on November 26, 2019. (ECF No. 4-1.) Plaintiff includes several attachments to his Complaint, including his grievance history spanning from October 25, 2019, through November 14, 2019.

         In these grievances, Plaintiff states that he was informed that the discontinuation of Enbrel was a “formulary issue” and also that he “presented none of the symptoms, ” to which Plaintiff replied that the lack of symptoms “demonstrates the effectiveness of the Enbrel that [he] was taking.” (Id. at PAGEID # 64.) The Office of the Inspector of the Institutional Services responded to Plaintiff's grievance on November 7, 2019, stating that Plaintiff had previously been prescribed Enbrel “due to the signs and symptoms” he was experiencing and his historical recount of his diagnoses. (Id.) The grievance response further explains that Enbrel's status as a non-formulary medication triggers periodic review of the “current medical status of the patient, ” which may result in continued approval or development of an alternative plan of care. (Id.) The response goes on to state that Plaintiff's “lab values were drawn, [a] physical evaluation took place and up-to-date imaging was processed, ” which were reviewed together with “the potential adverse effects” of ...


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