United States District Court, E.D. Michigan, Southern Division
REPORT AND RECOMMENDATION TO GRANT DEFENDANT KILARU'S MOTION TO DISMISS  AND DEFENDANT STIEVE'S MOTION FOR SUMMARY JUDGMENT 
ELIZABETH A. STAFFORD, Magistrate Judge.
Before the Court are two motions, one by defendant Dr. Ramesh Kilaru to dismiss claims against him made by plaintiff inmate Roderick Walker, and a second, by Dr. Jeffrey Stieve, for summary judgment on Walker's claims against him. For the following reasons, the Court recommends granting both motions. [11, 26].
Walker, a Michigan Department of Corrections ("MDOC") inmate proceeding pro se, brings his verified complaint against Drs. Kilaru and Stieve for violation of his Eighth Amendment right to be free from cruel and unusual punishment. He alleges that both defendants were deliberately indifferent to his serious medical needs when they ignored certain medical evidence in rendering and accepting a diagnosis that Walker alleges was contrary to the medical evidence of record, and which resulted in the stoppage of necessary pain medication. Walker alleges that, as a result, he has been in intractable pain that has caused him to pass out on at least one occasion, necessitating emergency room treatment.
Walker has been diagnosed with degenerative disc disease ("DDD"). From 2008 through 2013 the Pain Management Committee ("PMC") had approved a prescription of the narcotic Ultram for his condition. Walker had been offered surgery but declined due to the associated risks, opting to continue medical maintenance. Dr. Kilaru re-evaluated Walker's condition in September 2013, after Walker transferred to his present facility. Dr. Kilaru reviewed the details of Walker's medical history, but his examination revealed no neurological deficits at any spinal level and a normal range of motion throughout his spine and extremities. Dr. Kilaru opined that "[t]he diagnosis here appears to be Myalgia [muscle pain] rather than Myopathy [muscle disease] or Radiculopathy [pinched or irritated nerves] as he has no neurological deficit despite MRI findings in the record namely DDD. Actual MRI could not be located." [1, Pg. ID 16]. Dr. Kilaru filled out Walker's PMC reevaluation plan and explained the reevaluation process to him. Id.
The PMC, with Dr. Stieve as the head, evaluated Walker's plan in October 2013 and determined that Ultram was not indicated due to the diagnosis of myalgia. [1, Pg ID 17]. Instead, the medical providers were directed to offer Tylenol and/or an anti-inflammatory. Id. Walker's Ultram prescription was immediately stopped. Less than a week later, Walker fell in the yard and was taken to the emergency room, allegedly due to his increased pain level as a result of no longer having access to Ultram. While there, CT scans were performed on his lumbar, thoracic and cervical spine revealing a mild disc bulge at L3-4, a mild disc degeneration at T11-12 and multilevel degenerative disc disease throughout the cervical spine. [1, Pg ID 18-21, 24].
From October 2013 to January 2014, Walker filed grievances, contacted the deputy warden, and kited the health care unit, all in an effort to have his Ultram prescription reinstated. He was informed that local health care staff could not override PMC decisions, and that the PMC would not review his case again for another three to six months. Defendants allege, and Walker denies, that he was offered Tylenol and an anti-inflammatory in December 2013, but that he declined to accept them. Walker requested the Tylenol treatment plan in January 2014, and alleges that it has been ineffective to control his pain.
On March 7, 2014, Walker filed suit against Drs. Kilaru and Stieve, alleging deliberate indifference of a serious medical need, in violation of the Eighth Amendment. He alleges that the doctors showed reckless disregard for his health when they failed to review his old MRI films or order new films before diagnosing him with myalgia rather than radiculopathy from degenerative disc disease, and when they stopped his Ultram prescription.
Drs. Kilaru and Stieve move to dismiss and for summary judgment, respectively, arguing that Walker has alleged only medical negligence at most, which is insufficient to support an Eighth Amendment claim for deliberate indifference. Dr. Stieve further alleges that he is entitled to qualified immunity on Walker's claims against him.
III. LEGAL STANDARD
A. Motion to Dismiss
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests a complaint's legal sufficiency. Although the federal rules only require that a complaint contain a "short and plain statement of the claim showing that the pleader is entitled to relief, " see Rule 8(a)(2), the statement of the claim must be plausible. Indeed, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Iqbal Court explained, "[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." Id.
The plausibility standard "does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal [conduct]." Twombly, 550 U.S. at 556. Put another way, the complaint's allegations "must do more than create speculation or suspicion of a legally cognizable cause of action; they must show entitlement to relief." League of United Latin Am. ...