                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 08a0738n.06
                             Filed: December 3, 2008

                                           No. 07-4104

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


IRVIN FRANK KRAMER,                                      )
                                                         )
          Plaintiff-Appellant,                           )
                                                         )
v.                                                       )   On Appeal from the United States
                                                         )   District Court for the Northern
REGINALD WILKINSON, et al.,                              )   District of Ohio
                                                         )
          Defendants-Appellees.                          )




Before:          BOGGS, Chief Judge; and MERRITT and GRIFFIN, Circuit Judges.

                 PER CURIAM. Irvin Kramer, proceeding pro se, appeals the decision of the district

court dismissing his 42 U.S.C. § 1983 suit against Reginald Wilkinson, the former Director of the

Ohio Department of Rehabilitation and Correction (“ODRC”) and Dr. Ronald Moomaw, director

of Clinical Services at the ODRC. The suit alleges that the coerced medical care Kramer has

received violates the Constitution’s prohibitions against cruel and unusual punishment and

deprivation of liberty without due process of law. He argues that the lithium prescribed for his

diagnosed mental conditions is causing his kidneys to fail and that he has a constitutional right to

prevent the prison system from medicating him over his objections. He also alleges at least one

instance of forcible medication, where he was held down and administered Haldol, an anti-psychotic

medication. The district court held that he failed to exhaust the administrative remedies available
No. 07-4104
Kramer v. Wilkinson

to him in the prison system as required by the Prison Litigation Reform Act (“PLRA”) and, in the

alternative, that his complaint failed to state a claim. For the reasons outlined below, we affirm the

district court’s decision that Kramer’s pleadings failed to state a claim on which relief could be

granted.

                                                  I

           Kramer is an inmate currently incarcerated at the Grafton Correctional Institution in

Grafton, Ohio. He is diagnosed with manic depression and prescribed lithium to control his disease.

He has been taking the medication under the supervision of the ODRC since 1995. He alleges that

he withdrew consent for the medication and it has been involuntarily administered to him since 1999.

In February 2004, Kramer was afforded an involuntary medication hearing. The hearing resulted

in a decision to continue to require him to take his prescribed medication. That decision was

appealed by Kramer and affirmed by Dr. Moomaw. At some point thereafter1 Kramer filed an

informal complaint alleging that his mental health treatment was harming him and requesting that

he be removed from the Mental Health caseload. The complaint was handled by an appropriate staff

member and denied. Kramer properly filed a notification of a grievance and appealed the subsequent

adverse decision to the Office of the Chief Inspector. According to a prison system review of his

grievance file, Kramer named “Ms. Henderson, RN, Dr. Wayshville, Mental Health, Dr. Hammond,

Mental Health Administrator, and Dr. J. Herbert Manton” but neither of the defendants. On

November 22, 2005, the Office of the Chief Inspector described the appeal as a request “to be


       1
        The record does not contain his original informal complaint. The district court relies only
on a review of Kramer’s grievance file by Grafton’s Assistant Chief Inspector, Hugh Daley.

                                                -2-
No. 07-4104
Kramer v. Wilkinson

removed from the Mental Health caseload” and affirmed, concluding that “although [Kramer does]

not agree with the treatment [he is] receiving [his] mental health concerns are not being ignored and

are addressed by a licensed mental health professional.”

           Simultaneously to this grievance process, Kramer pursued relief in the federal courts and

filed this suit February 3, 2005, naming Wilkinson and Dr. Moomaw as defendants. The original

complaint alleged that “mental health in the Ohio prison system has gone down . . . .” Specifically,

Kramer states that “doctors say I would have to go off my medication (lithium) because of kidney

failure. I can control my manic depression but I cannot control my kidneys . . . the last three years

I have been asking about getting off the mental Health case load.” He also alleged a specific incident

in April 2003 where he refused medication and was involuntarily administered a shot of Haldol. In

detailing this event, his complaint named four ODRC employees (but neither of the defendants):

Carol Moul; Mike Malaya; Lieutenant Scott; and Lieutenant Cope. He now asserts he has “a legal

right to a second opinion” and therefore “ask[s] the court to order D.R.C.’s mental Health to take

him off Mental Health Case Load and to be med free. The Constitutional rights of Kramer has been

violated and what happened to due process of law.” He asks also for $ 7 million in damages,

requesting that, should he prevail and obtain an award, “3 million [go] to D.R.C.’s Mental Health

to upgrade, and 4 million to prison reform advocacy center.”

           On March 7, 2005, the district court dismissed Kramer’s complaint sua sponte for failure

to exhaust his administrative remedies. Plaintiff appealed and this court reversed in light of the

Supreme Court decision in Jones v. Bock, 127 S. Ct. 910 (2007), which invalidated the heightened

pleading requirements imposed by this court for litigants under the PLRA and applied by the district

                                                -3-
No. 07-4104
Kramer v. Wilkinson

court to Kramer’s complaint. Kramer v. Wilkinson, 226 F. App’x 461 (6th Cir. 2007) (per curiam)

(unpublished opinion). The suit was remanded for consideration under the proper legal standard.

           On remand, the defendants moved to dismiss, asserting failure to exhaust as an

affirmative defense and failure to state a claim on which relief could be granted under Fed. R. Civ.

P. 12(b)(6). Kramer moved for summary judgment. The district court denied the motion for

summary judgment and dismissed the complaint. The court held that the only relevant exhausted

grievance did not name the defendants nor discuss lithium and therefore the claims in this suit were

not exhausted. In the alternative, the court held that Kramer’s allegations failed to state a claim on

which relief could be granted because it did not demonstrate that defendants acted with the

“deliberate indifference to a serious medical need” that constitutes a violation of the Eighth

Amendment. Finally, the district court noted that the complaint made no reference to, or explanation

of, defendant Wilkinson’s participation in the alleged illegality and, accordingly, held that even if

there were an exhausted claim, he should be dismissed as a defendant.

           This appeal followed.



                                                 II

           The PLRA requires a prisoner who wishes to file a civil rights action challenging the

conditions of confinement to first exhaust the administrative remedies available in the prison system.

42 U.S.C. § 1997(a). Kramer argues that his claims were exhausted by his grievance against the

involuntary medication. The district court, however, held that Kramer’s grievance failed to exhaust

his claims because he did not name the defendants or allege the specific facts on which he now asks

                                                -4-
No. 07-4104
Kramer v. Wilkinson

for relief. We review such a determination de novo. Owens v. Keeling, 461 F.3d 763, 768 (6th Cir.

2006).

           Before discussing this exhaustion issue, it is important to note that the PLRA affords a

measure of flexibility to a federal court in approaching prisoner’s claims. “[T]he PLRA exhaustion

requirement is not jurisdictional” and therefore a court can “dismiss plainly meritless claims without

first addressing what may be a much more complex question . . . whether the prisoner did in fact

properly exhaust available administrative remedies.” Woodford v. Ngo, 548 U.S. 81, 101 (2006).

           Kramer’s claims arise out of two different sets of circumstances. Exhaustion regarding

claims relating to one set is complex and discussed below. But exhaustion on the claim arising out

of the other circumstances is not and we hold that the district court properly dismissed for failure to

exhaust the claim alleging a constitutional violation arising from a specific instance of forcibly

administered Haldol. None of the three grievances Kramer fully pursued through the prison system’s

grievance process – regarding the general practice of involuntary medication, favoritism in job

assignments, and the law library equipment – plausibly included this specific incident. Kramer is

barred by PLRA from proceeding on this claim in federal court.

           Kramer’s other claims, however, arise out of more general allegations about involuntary

medication and present a much closer question regarding exhaustion. His exhausted grievances

include one that alleged he wished “to be removed from the Mental Health caseload.” The district

court concluded that this was insufficient to exhaust because the exhausted grievance was “against

other individuals . . . who are not defendants herein” and “the plaintiff’s Grievance File ‘contains



                                                 -5-
No. 07-4104
Kramer v. Wilkinson

no complaints concerning his treatment neither with Lithium nor with the state of Mental Health

services having gone down hill.’” It is not at all clear whether this assessment was correct.

           Whether a relevant grievance sufficiently exhausted a claim to allow a prisoner to proceed

in federal court is “defined not by the PLRA, but by the prison grievance process itself.” Jones, 127

S. Ct. at 922 (citing Woodford, 548 U.S. at 88 (“[A] prisoner must complete the administrative

review process in accordance with the applicable procedural rules . . . .”)). The Ohio policy at issue

here, however, is ambiguous as to both of the district court’s reasons for holding Kramer did not

exhaust. It is unclear whether a grievance with generalized facts is sufficient and it is unclear

whether a grievance regarding an institutional decision to require medication requires named

defendants. See OHIO ADMIN . CODE 5120-9-31(K) (The initial informal complaint “must contain

specific information; dates, times, places, the event giving rise to the complaint and, if applicable,

the name or names of personnel involved and the name or names of any witnesses.”) (emphasis

added). There is no authoritative interpretation of the Ohio grievance process by this court or a state

court to guide us. We would therefore be required to analyze closely the grievance process’s

requirements in the first instance in order to determine whether he has sufficiently exhausted. See

Jones, 127 S. Ct. at 922-24 (discussing the Michigan grievance process in rejecting a per se rule that

exhaustion required defendants to be named, reviewing both the policy’s mandates and the forms

used by prisoners).

           In light of the flexibility allowed by the PLRA noted above, we will not resolve this

statutory interpretation question and instead proceed to the easier merits issue.



                                                 -6-
No. 07-4104
Kramer v. Wilkinson

                                                 III

           This circuit reviews “de novo an order dismissing a complaint under Rule 12(b)(6) for

failure to state a claim for relief.” Daubenmire v. City of Columbus, 507 F.3d 383, 387 (6th Cir.

2007).   Kramer’s complaint, properly benefitting from “a liberal construction,” makes two

allegations of constitutional harm. Boswell v. Mayer, 169 F.3d 384, 387 (6th Cir. 1999). He argues

that he has been involuntarily administered medicine, asking “whatever happened to due process of

law.” He also alleges that the course of medical treatment is dangerous to his health because “two

doctors say I would have to go off my medication (lithium) because of kidney failure.” Kramer has

not alleged facts that allow him to recover on either theory.

                                                  A

           Our circuit has recognized that “individuals in state custody enjoy [a] protectable liberty

interest[] . . . to refuse medical treatment.” Noble v. Schmitt, 87 F.3d 157, 161 (6th Cir. 1996)

(citing, inter alia, Washington v. Harper, 494 U.S. 210, 221 (1990)). But that interest is often

subject to regulation in the prison setting because of the “legitimacy, and the necessity, of

considering the State’s interests in prison safety and security . . . .” Harper, 494 U.S. at 223; cf.

United States v. Green, 532 F.3d 538 (6th Cir. 2008) (upholding order for involuntary medication

to allow defendant to stand trial). Here, like the regulation in Harper, Ohio’s policy of involuntary

medication where determined to be necessary by prison doctors “is an accommodation between an

inmate’s liberty interest in avoiding forced administration of . . . drugs and the State’s interests in

providing appropriate medical treatment to reduce the danger than an inmate suffering from a serious

mental disorder represents to himself or others.” Harper, 494 U.S. at 236. In light of his admitted

                                                 -7-
No. 07-4104
Kramer v. Wilkinson

mental illness and the prison doctor’s conclusions that his medication is necessary to control that

illness, Kramer’s naked assertions that he does not wish to be medicated fails to demonstrate that

the medical choice is not “reasonably related to legitimate penological interests.” Id. at 223; see also

Everson v. Mich. Dep’t of Corr., 391 F.3d 737, 751 n.16 (6th Cir. 2004) (“In cases involving

constitutional challenges to the actions of prison administrators, the Supreme Court has stressed

repeatedly that the decisions of administrators are entitled to substantial deference.”). Even if he

were to prove the facts alleged he could not obtain relief.

            While Kramer does not expressly allege that the decision to medicate him involuntarily

was made without constitutionally sufficient process, we note that he was afforded a hearing to

challenge the medication and given an explanation of why the prison felt he must continue on the

medication. Indeed, his complaint refers to the “appeal decision of 2/5/04" in which defendant

Moomaw upheld the treatment as medically necessary. See also J.A. 18 (Appeal Decision affirming

the decision of “an involuntary medication hearing” that upheld the treatment for Kramer). The

actions of defendants did not fall below the standard demanded by procedural due process. See

Harper, 494 U.S. at 233 (“The risks associated with antipsychotic drugs are for the most part

medical ones, best assessed by medical professionals. A state may conclude with good reason that

a judicial hearing will not be as effective . . . as administrative review using medical decisionmakers.

We hold that due process requires no more.”).




                                                 -8-
No. 07-4104
Kramer v. Wilkinson

                                                   B

           There is a recognized Eighth Amendment protection for prisoners against “deliberate

indifference” to a serious medical need, but that indifference generally involves the failure to provide

medical care. See Estelle v. Gamble, 429 U.S. 97, 104 (1976). In cases like Kramer’s, where the

medical personnel are treating him and have made a decision about the precise course of action he

requests, claims are generally unsuccessful. E.g., Davis v. Agosto, 89 F. App’x 523, 529 (6th Cir.

2004) (denying Eighth Amendment claim on summary judgment where defendant argued that the

unwanted treatment of a head wound unnecessarily inflicted pain upon him).

           This is because failing to prevent medical harm only “rises to the level of a constitutional

violation where both objective and subjective requirements are met.” Harrison v. Ash, 539 F.3d 510,

518 (6th Cir. 2008). Where the prisoner was in the care of a doctor (and the allegation is deliberate

indifference based on care given and not intentional infliction of pain), our cases offer two verbal

formulations to describe when a doctor’s actions were subjectively callous so as to be

constitutionally cruel and unusual punishment. First, if the prisoner received “grossly inadequate

care,” we will conclude a doctor acted with “subjective” deliberate indifference. Perez v. Oakland

County, 466 F.3d 416, 424 (6th Cir. 2006). Second, we have favorably cited the Eleventh Circuit’s

test: “whether a reasonable doctor . . . could have concluded his actions were lawful.” Terrance v.

Northville Reg’l Psychiatric Hosp., 286 F.3d 834, 844 (6th Cir. 2002) (quoting Waldrop v. Evans,

871 F.2d 1030, 1034 (11th Cir. 1989)). While both approaches lack absolute analytic precision, it

is clear that Kramer has not alleged facts that rise to the level of seriousness they convey. Kramer

asserts only that he disagrees with the decision to keep him on lithium in the face of the risk of

                                                 -9-
No. 07-4104
Kramer v. Wilkinson

kidney failure and that outside doctors have not been permitted to review the decision made by the

prison’s medical professionals. This does demonstrate a possible disagreement over which health

problem – the mental disorder or the risk of kidney problems – posed a more serious medical threat

to Kramer. But it is far short of an allegation of “grossly inadequate care” or unlawful behavior. Cf.

Terrance, 286 F.3d at 844-47 (holding that doctors and nurses could be found to have provided

grossly inadequate care after they failed to supervise decedent or plan for risks associated with

decedent’s medical conditions despite their knowledge of immediate risk factors of sudden death).

That is, even if he were to prove the disagreement at trial, he would not be entitled to relief because

no alleged fact tends to show that the prison doctors provided “grossly inadequate care” or that their

treatments were so medically unsound as to violate the law.



                                                  IV

           The district court’s dismissal of the complaint is therefore AFFIRMED.




                                                - 10 -
