McCoy v. Gebreyes, No. 3:2011cv00474 - Document 13 (E.D. Va. 2012)
Court Description: MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 12/20/12. Copy sent: Yes(tdai, )
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division ANTHONY McCOY, Plaintiff, v. Civil Action No. 3:11CV474 DOCTOR GEBREYES, Defendant. MEMORANDUM OPINION Anthony McCoy, a Virginia state prisoner proceeding pro se and informa pauperis, brings this civil rights action. The matter is before the Court for evaluation pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A. I. BACKGROUND The Magistrate Judge made the following findings and recommendations: Preliminary Review Pursuant to the Prison Litigation Reform Act ("PLRA") this Court must dismiss any action filed by a prisoner if the Court determines the action (1) "is frivolous" or (2) "fails to state a claim on which relief may be granted." 28 U.S.C. § 1915(e)(2); see 28 U.S.C. § 1915A. The first standard includes claims based upon "'an indisputably meritless legal theory,'" or claims where the '"factual contentions are clearly baseless.'" Clay v. Yates, 809 F. Supp. 417, 427 (E.D. Va. 1992) {quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)). The second standard is the familiar standard for a motion to dismiss under Fed. R. Civ. P. 12(b)(6). "A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party ofN.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) {citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990)). In considering a motion to dismiss for failure to state a claim, a plaintiffs well-pleaded allegations are taken as true and the complaint is viewed in the light most favorable to the plaintiff. Mylan Labs., Inc. v. Matkari, 1 F.3d 1130, 1134 (4th Cir. 1993); see also Martin, 980 F.2d at 952. This principle applies only to factual allegations, however, and "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." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009). The Federal Rules of Civil Procedure "require[ ] only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (second alteration in original) {quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Plaintiffs cannot satisfy this standard with complaints containing only "labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Id. at 555 (citations omitted). Instead, a plaintiff must allege facts sufficient "to raise a right to relief above the speculative level," id. (citation omitted), stating a claim that is "plausible on its face," id. at 570, rather than merely "conceivable." Id. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949 {citing Bell Atl Corp., 550 U.S. at 556). Therefore, in order for a claim or complaint to survive dismissal for failure to state a claim, the plaintiff must "allege facts sufficient to state all the elements of [his or] her claim." Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003) {citing Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4th Cir. 2002);Iodice v. United States, 289 F.3d 270, 281 (4th Cir. 2002)). Lastly, while the Court liberally construes pro se complaints, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), it does not act as the inmate's advocate, sua sponte developing statutory and constitutional claims the inmate failed to clearly raise on the face of his complaint. See Brock v. Carroll, 107 F.3d 241, 243 (4th Cir. 1997) (Luttig, J., concurring); Beaudett v. City ofHampton, 775 F.2d 1274, 1278 (4th Cir. 1985). Summary of Allegations and Claims McCoy alleges thatDr. Gebreyes has violated his Eighth Amendment1 and Fourteenth Amendment2 rights by discontinuing McCoy's Vicoden3 prescription "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const, amend VIII. No State shallmake or enforce any law which shall... deprive any personof life, liberty orproperty, without due process of law " U.S. Const, amend XIV. McCoy suggests that Dr. Gebreyes, through his conduct, violated both McCoy's Eighth Amendment rights and his Fourteenth Amendment substantive due process rights. (Compl. 6.) "[I]t is nowwell established thatthe Eighth Amendment 'serves as theprimary source of substantive protection to convicted prisoners,' and the Due Process Clause affords a prisoner no greater substantive protection 'than does the Cruel and Unusual Punishments Clause.'" Williams v. Benjamin, 11 F.3d 756, 768 (4th Cir. 1996) {quoting Whitley v. Albers, 475 U.S. 312, 327 (1986)). Thus, McCoy's Fourteenth Amendment substantive due process claim is subsumed within his Eighth Amendment claim. Vicoden is the trade name for a prescription painkiller primarily used to relieve moderate to severe pain. and prescribing him over-the-counter pain killers. (Compl. 4.)4 McCoy states that Dr. Gebreyes prescribed McCoy Vicoden as treatment for an ongoing back problem. (Id) McCoy subsequently saw a neurosurgeon who recommended that McCoy be treated by a physical therapist. (Id.) The physical therapist, in turn, recommended that McCoy "do some stretches [and] try to start moving around." (Id) McCoy claims that, because he had been "bed bound" for so long, he could not perform exercises recommended by the physical therapist without Vicoden. (Id.) McCoy further avers that "the neurosurgeon recommended that I continue the conservative treatment that I was on until I get through enough physical therapy, to rehabilitate enough to not need the Vicoden anymore." (Id. (capitalization corrected).) McCoy states that "I was taken off of Vicoden [and] put on Motrin the very next day because the doctor thinks I'm faking my symptoms." (Id. at 4-5.) McCoy claimsthat he "tried in every way [he] possibly [could] to explain to the doctor that its [sic] very important that [McCoy] be on the oral analgesics[5 and] painkillers as it was recommended so that I can conduct my physical therapy." (Mat 5.) McCoy admits that he is able to perform his physical therapy exercises, though he is "limited due to the pain." (Id.) McCoy complains of "major discomfort [and] pain . . . numbness ... throughout [his] lower back and down [his] legs to the soles of [his] feet... when [he] sit[s] up for a long period of time, stand[s] or [is] active for a long period of time, or even a short period of time." (Mat 6.) McCoy also complains of stiff muscles. (Id.) Analysis McCoy insists the neurosurgeon directed him to be on "continued oral analgesics." (Id. at 4.) Yet McCoy admits that Dr. Gebreyes gave him Motrin and Tylenol, both of which are oral analgesics. (Id. at 4-5.) "Whether and how pain associated with medical treatment should be mitigated is for doctors to decide free from judicial interference, except in the most extreme situations." Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996). This is not such an extreme circumstance. See, e.g., Martinez v. Mancusi, 443 F.2d 921, 924-25 (2d Cir. 1971) (Relief granted when prison doctor forced prisoner plaintiff, without hospital ordered pain medication, to walk out of hospital and stand for meals after plaintiff had leg surgery for which hospital specialist had ordered plaintiff to lie flat and not to walk.). Dr. Gebreyes wrote McCoy's original prescription for Vicoden and later decided that it was appropriate to switch McCoy's painkiller medication to Motrin and/or Tylenol. Thus, McCoy's disagreement with Dr. Gebreyes about which painkiller to use in McCoy's case insufficiently states an Eighth Amendment claim. Wright v. Collins, 166 F.2d 841, 849 (4th Cir. 1985) (citing Gittlemacker v. Prasse, 428 F.2d 1, 6 (3d Cir. 1970)). Accordingly, it is RECOMMENDED that the action be DISMISSED. The Court employs the page numbers assigned to McCoy's Complaint by the Court's EM/ECF system. 5Analgesic is defined simply as "[something that relieves pain." Webster's II New College Dictionary 40 (1999). Accordingly, an oral analgesic is a pain reliever taken by mouth. 3 (April 3, 2012 Report and Recommendation (alterations and omissions in original).) The Court advised McCoy that he couldfile objections or an amended complaint withinfourteen (14) days afterthe entry of the Reportand Recommendation. On April 11, 2012, McCoy filed an Amended Complaint. (Docket No. 12.) As explained below, the Magistrate Judge's analysis applies with equal force to the Amended Complaint. II. McCOY'S AMENDED COMPLAINT In his Amended Complaint, McCoy again states that Dr. Gebreyes prescribed McCoy Vicoden for his back pain prior to McCoy seeing a neurosurgeon. (Am. Compl. 1.)6 McCoy asserts that "[t]he neurosurgeon did recommend that I continue the 'conservative treatment' of the Vicoden & bed rest, until I saw the physical therapist & was deemed necessary by the physical therapist that I could conduct my physical therapy without the help of an analgesic." (Id) McCoy explains that, though "the law prohibited] [theneurosurgeon and orthopedic specialist] fromprescribing [McCoy] specific/medications," they promised "to word [the] recommendations so that the prisonM.D. would understand that [McCoy] needed to be taking a powerful analgesic. That[ is] why the neurosurgeon put in the report 'continue conservative treatment.'" (Id. at 2.) Nevertheless, Dr. Gebreyes refused to renew his original prescription of Vicoden for McCoy and prescribed McCoy Motrinand Tylenol. (Id.) "Whether and howpain associated with medical treatment should be mitigated is for doctors to decide free from judicial interference, except in the most extreme situations." Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996). McCoy suggests that, due to "the extent ofpain that I felt due to the injury I had," his situation is "in fact an extreme circumstance" warranting Because McCoy failed to number the pages of the Amended Complaint, citations to this document will refer to the page numbers assigned by the Court's CM/ECF system. The Court corrects the capitalization in the quotations to this document. 4 the Court's intervention. (Am. Compl. 3.) McCoy asserts that Dr. Gebreyes's conduct "was ultimately the reason why I was leftto layon a cell floor for such a long period of time, & was partof the reason why my muscles became very stiff, which only caused me more pain, and even more limited movement." (Id.) McCoy's Amended Complaint fails to state an Eighth Amendment claim for denial of adequate medical care. As stated above, "[disagreements between an inmate and a physician over the inmate's propermedical care do not state a § 1983 claim unless exceptional circumstances are alleged." Wright v. Collins, 166 F.2d 841, 849 (4thCir. 1985) (citing Gittlemacker v. Prasse, 428 F.2d 1, 6 (3d Cir. 1970)). Moreover, if an inmate's "disagreement with a doctor's professional judgmentdoes not statea violation of the Eighth Amendment, then certainly no claim is statedwhen a doctor disagrees with the professional judgmentof another doctor. There may, for example, be several acceptable ways to treat an illness." White v. Napoleon, 897 F.2d 103, 110 (3d Cir. 1990); see United States v. Clawson, 650 F.3d 530, 538 (4th Cir. 2011). Here, McCoy's Amended Complaintalleges that by recommending that Dr. Gebreyes '"continue conservative treatment'" for McCoy's backpain, the neurosurgeon implicitly recommended the continued prescription for Vicoden for McCoy. McCoy fails to allege any exceptional circumstances justifyingjudicial interference withthe professional judgment of Dr. Gebreyes. Moreover, McCoy cannot allege Dr. Gebreyes ignored McCoy'spain, as he prescribed medication to treat it. McCoy's disagreement with Dr. Gebreyes over the discontinuation of the stronger pain medication in favor of Motrin and Tylenol fails to state a claim of deliberate indifference. SeeHill v. Curcione, 657F.3d 116, 123 (2d Cir. 2011) (concluding prisoner's claim alleging the insufficiency of Motrin medication and denial of stronger pain medication for his wrist injuries failed to state a deliberate indifference claim); 5 Diaz v. Turner, 160F. App'x. 360, 362-63 (5th Cir. 2005) (finding inmate's disagreement with decision by medical personnel not to provide him with nonprescription medication on demand fails to constitute deliberate indifference to medical needs); Reyes v. Gardener, 93 F. App'x 283, 285 (2d Cir. 2004) (concluding defendants' decision to prescribe Tylenol or Motrin to manage prisoner's pain and to administer Demerol or Morphine only when necessary did not constitute deliberate indifference). Accordingly, McCoy's claims will be DISMISSED WITH PREJUDICE. III. CONCLUSION Plaintiffs claims will be DISMISSED WITH PREJUDICE and the action will be DISMISSED. The Clerk will be directed to note the disposition of the action for purposes of 28 U.S.C. § 1915(g). An appropriate Order will accompany this Memorandum Opinion. JsL Date:'*-^-/-^ Richmond, Virginia James R. Spencer United States District Judge
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