Stewart v. Taft, No. 3:02-CV-7057.

• Decision Date: 08 October 2002
• Docket Number: No. 3:02-CV-7057.
• Citation: Stewart v. Taft, 235 F.Supp.2d 763 (N.D. Ohio 2002)
• Parties: Marvin STEWART, Plaintiff v. Bob TAFT, et. al., Defendants
• Court: U.S. District Court — Northern District of Ohio

235 F.Supp.2d 763

Marvin STEWART, Plaintiff v. Bob TAFT, et. al., Defendants

No. 3:02-CV-7057.

United States District Court, N.D. Ohio, Western Division.

October 8, 2002.

Marvin Stewart, Lima, OH, pro se.

Kelley A. Sweeney, Office of Attorney General, State of Ohio, Corrections Litigation Section, Cleveland, OH, for Defendants.

ORDER

CARR, District Judge.

Plaintiff pro se Marvin Stewart brings this case under 42 U.S.C. § 1983 against Ohio Governor Bob Taft, Ohio Department of Rehabilitation and Correction ("ODRC") Director Reginald Wilkinson, ODRC Medical Director Dr. Bruce Martin, ODRC Associate Medical Director Dr. Lawrence Mendel, Allen Correctional Institution ("ACI") Doctor Ashwin Amin, ACI Health Care Administer Nurse Christine Barkimer, ACI Chronic Care Nurse Nancy Hefner, and "John/Jane Does × 1000." This court has jurisdiction pursuant to 28 U.S.C. § 1331. Currently pending is defendants' motion to dismiss, which is being treated as a motion for summary judgment because both parties rely on evidence outside the record. For the reasons given below, defendants' motion for summary judgment shall be granted.

BACKGROUND

Marvin Stewart is an inmate at ACI, serving a term of fifteen years to life for a 1993 murder conviction. He began his incarceration at the Lorain Correctional Institution. He was transferred to ACI in 1999.

On March 29, 2001, sixty-three ACI inmates tested positive for the latent form of tuberculosis ("TB") in an institution-wide purified protein derivative ("ppd") test.¹ After all 2,147 ACI inmates were tested, approximately eighty to ninety inmates tested positive for latent TB — about four percent of the ACI inmate population. The ODRC has a goal of 0% infection rate, but a less than 1% infection rate will be tolerated.

In April, 2001, Ramon Perez, the ODRC's Infectious Disease Coordinator, and Jimmy Keller, a representative of the Center for Disease Control ("CDC") and the Ohio Department of Health, investigated the results of the positive ppd tests at ACI. Following the recommendations of the CDC Morbidity and Mortality Weekly Report ("MMWR"), Perez and Keller devised a treatment and prevention plan for the ACI inmates. Each inmate with latent TB received 900 milligrams of Isoniazid ("INH") twice a week for six months. Or, if the inmate preferred, he could take one pill, or 300 mg, of INH daily for six months. The inmates who did not test positive for TB were given ppd tests every three months. A less than 1% infection rate was accomplished in November, 2001. A 0% infection rate was accomplished by May, 2002.

Stewart tested positive for TB during the March 29, 2001, institution-wide test. On April 4, 2001, ACI prescribed Stewart 900 milligrams of INH and fifty milligrams of vitamin B6 every Tuesday and Friday for six months. On April 9, 2001, Stewart altered the regimen by taking 300 milligrams of INH daily for six months.

After testing positive for TB, Stewart complained that the combination of the prison's conditions — namely, overcrowding —and the staff's incompetence exposed him to the TB virus. On or about May 15, 2001, plaintiff claims he filed an "Informal Complaint" with defendant Nurse Barkimer asserting that the prison medical staff failed to control, treat, and properly test for TB.

On May 16, 2001, Stewart filed a "Notification of Grievance" to the ACI Inspector of Institutional Services. Plaintiff claimed the ACI staff disregarded a known and obvious health risk, failed to follow ACI policies relating to TB control once they were aware of inmates becoming exposed, failed to properly prevent further spreading after confirmed cases of TB appeared, and contributed to purposeful overcrowding of the inmate population.

In the ACI's "Disposition of Grievance" notice to Stewart, the Inspector of Institutional Services responded, in part:

Allen Correctional Institution upon the discovery of a Positive T/B test implemented and appropriately followed Departmental infectious disease policy. All Staff and inmates were provided a PPD test. Appropriate treatment was given as necessary. Prison population in and of itself does not cause tuberculosis. Population trends are on a Consistent decrease between July of 1999 and January of this year there has been a 15% decrease in the population at ACI resulting in a 23.5% decrease in the crowding at ACI.

Plaintiff appealed this decision to the Office of the Chief Inspector. On July 2, 2001, the Assistant Chief Inspector affirmed the decision of the Inspector, noting:

The Ohio Department of Health was consulted including a person who was trained by the Center for Disease Control who also provided advice and approved the action plan that was used. They continue to work with the department. A second follow-up test will be provided in the second week of July. In light of these facts it does not appear that the institution has been indifferent to your medical needs.

On January 30, 2002, plaintiff filed this § 1983 action. Plaintiff alleges he has been subjected to cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the U.S. Constitution.

First, plaintiff claims that because of unconstitutional overcrowding in the prison, he was exposed to TB. This overcrowding, according to plaintiff, establishes a dangerous condition of confinement.

Second, plaintiff claims that the ACI staff failed to control, treat, and properly test for TB. Plaintiff alleges that ACI officials did not inform inmates there were active TB cases within ACI, and they failed to isolate any inmates with active TB. This delay in responding to a TB outbreak, according to plaintiff, caused Stewart's needless exposure to the disease.

Third, plaintiff claims his constitutional rights were violated by the inadequate medical treatment he received after he tested positive for TB.

Defendants move this court for summary judgment on all of plaintiff's claims.

STANDARD OF REVIEW

Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. 2548. The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting FED. R. CIV.P. 56(e)).

Once the burden of production shifts, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is insufficient "simply [to] show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rather, Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex, 477 U.S. at 324, 106 S.Ct. 2548.

In deciding the motion for summary judgment, the evidence of the non-moving party will be accepted as true, all doubts will be resolved against the moving party, all evidence will be construed in the light most favorable to the non-moving party, and all reasonable inferences will be drawn in the non-moving party's favor. Eastman Kodak Co. v. Technical Servs., Inc., 504 U.S. 451, 456, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992). Summary judgment shall be rendered only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c).

DISCUSSION

I. Liability of Defendants Taft, Wilkinson, Martin, and Mendel

Defendants Taft, Wilkinson, Martin, and Mendel move this court for summary judgment claiming they did not directly participate in any alleged deprivation of constitutional rights. Thus, they cannot be held liable.

Plaintiff claims that defendants Taft, Wilkinson, Martin, and Mendel were aware of the alleged unconstitutional overcrowding at ACI. This awareness, according to plaintiff, coupled with these defendants' failure to take the proper measures to prevent overcrowding, has caused ACI to become a breeding ground for infectious diseases. More specifically, defendant Taft has "personally failed to act and correct this problem ...." (Plaintiff Opposition Br. at ¶ 11) Defendant Wilkinson knew that "Ohio's prisons [were] severely overcrowded and he has taken no measure to correct this problem." (Id. at ¶ 17) Defendants Martin and Mendel have "directly or indirectly allowed the condistion [sic] at ACI to deteriorate substantially that caused the unconstitutional conditions at ACI." (Id. at ¶ 21) According to plaintiff, these defendants are therefore not liable under respondeat superior, but they have directly participated in depriving plaintiff of his constitutional rights.

The Supreme Court has clearly indicated that neither the doctrine of respondeat superior nor vicarious liability can form the basis of liability for a § 1983 claim. Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Rizzo v. Goode, 423 U.S. 362, 371, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). In Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir.1984), the Sixth Circuit held that § 1983 liability of supervisory personnel must be based on more than the right to control employees. There must be a showing that the supervisor encouraged the specific incident of misconduct or in some other way...