United States District Court, W.D. Michigan, Northern Division
J. JONKER CHIEF UNITED STATES DISTRICT JUDGE
a civil rights action brought by a state prisoner under 42
U.S.C. § 1983. Under the Prison Litigation Reform Act,
Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), 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
Plaintiff’s complaint for failure to state a claim
against Defendants Smith, Krause, and McLean.
Plaintiff’s Eighth Amendment claims against Defendants
Canlas and Unknown Part(y)(ies) #1 remain in the case.
Plaintiff is presently incarcerated with the Michigan
Department of Corrections (MDOC) at the Chippewa Correctional
Facility (URF) in Kincheloe, Chippewa County, Michigan. The
events about which he complains occurred at that facility.
Plaintiff sues the following personnel at the URF facility:
Nurses (unknown) Smith and Unknown Part(y)(ies); Doctor
Bienvenido Canlas; Licensed Practical Nurse (LPN) Jody M.
Krause; and Grievance Coordinator Mike McLean.
alleges that, on September 9, 2019, he went to health
services for evaluation and treatment of pain and swelling in
his left ear. Defendant Smith examined Plaintiff and informed
him that he had an ear infection. She called a doctor and
described Plaintiff’s symptoms. After speaking with the
doctor, Defendant Smith gave Plaintiff some ibuprofen and
acetaminophen, together with several orange antibiotic pills
(amoxicillin), which she placed in a small envelope. Smith
did not indicate what antibiotic had been prescribed, but she
advised Plaintiff to take one pill at each meal. She directed
Plaintiff to take the first antibiotic pill while he was
still in the health care unit.
minutes after Plaintiff went back to his unit, Defendant
Smith called him back to health care. Smith told Plaintiff
that she had just noticed in his chart that Plaintiff was
allergic to penicillin. Smith asked Plaintiff to retrieve the
remainder of the pills and asked Plaintiff whether he had
taken any. When Plaintiff reminded Smith that he had taken
one in the health care unit, she advised Plaintiff that
health care personnel would be checking on him. Defendant
Smith exchanged the amoxicillin for azithromycin.
Plaintiff returned to his unit, he became dizzy and nauseous,
and his neck and jaw swelled up. Plaintiff informed the
correctional officer on duty that he was having symptoms of
an allergic reaction. The officer sent Plaintiff back to
health services, where Defendant Smith prescribed Plaintiff
Benadryl to combat the allergic reaction. Smith told
Plaintiff to go back to his unit and lie down.
that day, Plaintiff was called to health care, where he saw
Defendant Nurse Unknown Part(y)(ies). Defendant checked
Plaintiff’s mouth and saw swelling of the tongue and
throat. The nurse told Plaintiff that he had a fever of
104° and gave him Motrin. Plaintiff was told to wait
three days, until Tuesday, September 13, 2018, when the
doctor was scheduled to come in.
did not see the doctor on September 13. During the four days
following his visit with the unknown nurse, Plaintiff’s
ear infection grew worse, and he suffered with ongoing
symptoms of the allergic reaction, including a swollen throat
and tongue, hearing loss, high fever, and itchy skin all over
his body. He could not hold down either food or water and had
constant headaches. Plaintiff claims that both the Unknown
Nurse Defendant who saw him on September 9, and Defendant Dr.
Canlas who originally prescribed the offending antibiotic and
later the Benadryl to fight the allergic reaction, did
nothing to address Plaintiff’s serious and ongoing
medical needs during this time.
Plaintiff was finally seen in health care on September 14,
2018, Defendant Canlas discovered that Plaintiff had
developed a second ear infection in his right ear. Plaintiff
alleges that Nurse Practitioner Wilson (not a Defendant)
provided him with Bactrim until a better medicine was ordered
and received by the facility. On September 20, 2019,
Plaintiff was issued Trimethoprim to treat the ear infection.
He took the medication until September 30, 2018. Plaintiff
complains, however, that he continued to suffer with symptoms
of the allergic reaction until about October 5, 2018.
alleges that he filed multiple kites to health services.
Defendant LPN Krause received Plaintiff’s kite on
September 20, 2019. She responded that she had forwarded the
kite to Health Unit Manager Melissa LaPlaunt, noting that
Plaintiff had filed multiple complaints about being given an
antibiotic to which he was allergic and from which he was
experiencing symptoms. Plaintiff contends that Defendant
Krause knew or should have known that his condition was
serious, but she provided him no treatment.
filed a grievance on September 12, 2018. Defendant McLean,
however, rejected the grievance on September 18, because
Plaintiff had not attempted to resolve the issue with the
person most directly involved. Defendant McLean gave
Plaintiff the option of attempting to resolve the issue with
health services and refiling a new grievance. Plaintiff sent
a memorandum to Health Unit Manager Melissa LaPlaunt, to
which he attached the rejected grievance. When he received no
response, Plaintiff filed a new grievance, which Defendant
McLean rejected as duplicative of Plaintiff’s first
rejected grievance. Plaintiff again filed a grievance,
attaching the earlier rejection letter and its instructions,
together with copies of his kites to health care. Plaintiff
pursued all three grievances through the third step of the
contends that Defendants were deliberately indifferent to his
serious medical needs when they erroneously prescribed and
issued him a medication to which he was known to be allergic.
He also alleges that Defendants delayed treating or failed to
adequately treat both his serious allergic reaction to the
medication and his progressive ear infection. Plaintiff
complains that Defendant McLean retaliated against ...