United States District Court, W.D. Michigan, Southern Division
KUSHAWN S. MILES, Plaintiff,
v.
TIMOTHY VERSALLES, Defendant.
OPINION
JANET
T. NEFF UNITED STATES DISTRICT JUDGE.
This is
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.
Discussion
I.
Factual allegations
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, however, occurred at the Muskegon
Correctional Facility (MCF) in Muskegon, Muskegon County,
Michigan. Plaintiff sues Registered Nurse Timothy Versalles.
Plaintiff
alleges that he has a well-documented history of severe
asthma, allergies, chronic rhinitis, and sinusitis. On
December 23, 2016, at 9:23 a.m., Plaintiff began experiencing
wheezing and tightness in the chest associated with his
medical condition. Plaintiff was sent to health care where
Defendant wrongly told him that he had to fill out a kite and
agree to pay the $5 co-pay in order to receive treatment. The
delay in treatment caused his condition to worsen, so
Plaintiff filled out a kite, but did not sign it. Plaintiff
states that Defendant then took an additional 10 to 20
minutes to begin evaluating Plaintiff, asking Plaintiff for
information that was already part of Plaintiff's medical
record. Defendant listened to Plaintiff's lungs and told
him that he was fine, that nothing was wrong. At this point,
the doctor stepped in and evaluated Plaintiff. The doctor
then had Defendant give Plaintiff a breathing treatment and
prescribed Plaintiff a seven-day course of prednisone.
Plaintiff
states that at the time of this incident, he had a special
accommodation for breathing treatments 24 hours a day due to
his asthma. Plaintiff contends that the potential
consequences of failing to treat an asthma attack are
increased symptoms, a pulmonary embolism, and death.
Plaintiff
attaches a copy of his step II grievance response, which
states:
Investigation determined that grievant's issue was
appropriately addressed by the Step I Respondent and is
affirmed at the Step II Appeal. Review of the electronic
medical record confirms that RN Versalle evaluated grievant
on 12/23/16 re: an acute exacerbation of asthma. The nurse
assessed the grievant and administered a breathing treatment
and other medication as ordered by the physician.
Grievant's symptoms appear to have stabilized in response
to these interventions.
This respondent can neither confirm nor refute grievant's
claims re: the timing of the interventions that were
implemented during the nursing visit that occurred on
12/23/16. Grievant's point that he had a valid order for
breathing treatments as needed is noted. This respondent
contacted MCF Health Care and discussed grievant's
concerns with supervisory staff. This respondent was assured
that measures have been implemented to ensure that previously
ordered breathing treatments are administered promptly - and
without assessment of a co-pay charge. It is noted that
grievant ultimately was not charged a co-pay for the
12/23/16 visit.
Grievant's concern re: his asthma symptoms is
acknowledged and understood. Grievant is assured that he will
be provided with any intervention deemed medically necessary
to treat his asthma. Grievant is encouraged to notify Health
Care immediately if he has any further adverse symptoms re:
to his asthma.
(ECF No. 1-1, PageID.25.)
Plaintiff
claims that Defendant was deliberately indifferent to his
serious medical condition in violation of the Eighth
Amendment. Plaintiff seeks damages and equitable relief.
II.
Failure ...