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Abram v. Corizon Health, Inc.

United States District Court, E.D. Michigan Southern Division

February 9, 2015

MICHAEL ABRAM, Plaintiff,
v.
CORIZON HEALTH, INC., et al., Defendants.

REPORT AND RECOMMENDATION TO GRANT DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [23]

DAVID R. GRAND, Magistrate Judge.

Before the Court is the Motion for Summary Judgment filed on June 16, 2014, by two of the defendants in this action, Troy Pendell and Penny Parsons. [23]. Abram submitted a response to this motion on October 8, 2014. [37]. An Order of Reference was entered on June 18, 2014, referring all pretrial matters to the undersigned pursuant to U.S.C. §636(b). [26]. The Court finds that the facts and legal issues are adequately presented in the briefs and on the record, and it declines to order a hearing at this time.

I. RECOMMENDATION

For the reasons set forth below, IT IS RECOMMENDED that Defendants' motion for summary judgment [23] be GRANTED.

II. REPORT

A. Abram's Allegations

Abram is a former Michigan Department of Corrections ("MDOC") prisoner and current parolee, though at all times relevant to the complaint he was confined in either the Central Michigan Correctional Facility (the "CMCF") in St. Louis, Michigan, or the Pugsley Correctional Facility (the "PCF") in Kingsley, Michigan. [1 at 3; 23-2 at 2]. Abram brought this civil rights action pursuant to 42 U.S.C. § 1983 alleging that Defendants Corizon Health, Inc., Registered Nurse Penny Parsons ("Nurse Parsons"), Registered Nurse Commins, unknown nurse Jane Doe, Dr. Joseph Burtch, and Dr. Harriet Squier violated his Eighth Amendment right to be free from cruel and unusual punishment by failing to provide him with timely health care, and that Assistant Resident Unit Supervisor Troy Pendell ("ARUS Pendell") violated his First Amendment right to free speech by retaliating against him for filing grievances related to that matter. [1]. The facts discussed below focus on Abram's claims against Nurse Parsons and ARUS Pendell, as they are the only movants with respect to the instant motion.

In his complaint, Abram asserts that at approximately 11:00 p.m. on February 21, 2013, while he was housed at CMCF, he reported experiencing "extreme pain in [his] rectum" to Third Shift Officer Schott, who put Abram in touch with the health clinic. [1 at 3]. Abram alleges that he then spoke by phone to Nurse Parsons, an on-call nurse (who was at the St. Louis Correctional Facility (the "SLCF")), who asked him to identify his "symptoms." [ Id. ].[1] Abram claims to have informed her that he was experiencing "extreme pain in [his] rectum" (though, as discussed below, Nurse Parsons denies that he so advised her). [ Id. ]. Abram claims that Nurse Parsons advised him that the prison's "health care" center was closed at that time of night, and instructed him to "send a health clinic kite."[2] [1 at 3].

Abram acted quickly on Nurse Parson's suggestion. He alleges that the next morning, he reported this same pain to First Shift Officer Chaney, who put him in touch with an unnamed "Jane Doe" nurse on call.[3] [ Id. ]. Abram states that he was again asked to identify his "symptoms, " told the nurse that he was experiencing "extreme pain" in his rectum, and was instructed to send a kite to the health center. [ Id. ]. Abram asserts that around 2:45 p.m. that same day, he started having chills, and told Second Shift Officer Sowels that he was in extreme pain and that his body was shaking. [ Id. ]. He was then sent to health care in a wheelchair. [ Id. ]. Abram alleges that he was found to have a very high temperature, and was "rushed to the hospital" for "emergency" surgery, though the surgery did not take place until two days later, on February 24, 2013. [ Id. ].[4]

Abram also alleges that he filed grievances against certain prison officials relating to the medical care he received, and was retaliated against as a result. [ Id. ]. Specifically, Abram asserts that ARUS Pendell transferred him to the PCF on April 2, 2013, despite a "hold" resulting from his participation in the "Sexual Offender Program." [ Id. ]. He was returned to the CMCF one week later. [ Id. ].

B. Parsons and Pendell's Motion for Summary Judgment

On June 16, 2014, Nurse Parsons and ARUS Pendell filed the instant motion for summary judgment. [23]. Nurse Parsons argues that Abram's Eighth Amendment claim fails because he did not inform her that he was experiencing rectal pain, he did not demonstrate that the delay in care allegedly attributable to Parsons caused serious injury[5], medical care was not available at the time of Abram's call, and because, at worst, she acted in a negligent fashion, thereby falling short of deliberate indifference. [23 at 9-11]. ARUS Pendell argues that Abram's First Amendment claim fails because a transfer from one prison to another is generally not considered an adverse action, because ARUS Pendell did not initiate the transfer, and because Abram presented no evidence that Pendell's action was motivated by retaliation. [23 at 12-14]. Finally, Nurse Parsons and ARUS Pendell argue that they are entitled to qualified immunity because Abram did not suffer the violation of a clearly established right. [23 at 16-17].

C. Standard of Review

Pursuant to Federal Rule of Civil Procedure 56, the Court will grant summary judgment if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Pittman v. Cuyahoga County Dep't of Children & Family Servs., 640 F.3d 716, 723 (6th Cir. 2011). A fact is material if it might affect the outcome of the case under governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material fact exists, the Court assumes the truth of the non-moving party's evidence and construes all reasonable inferences from that evidence in the light most favorable to the non-moving party. See Ciminillo v. Streicher, 434 F.3d 461, 464 (6th Cir. 2006).

The party seeking summary judgment bears the initial burden of informing the Court of the basis for its motion, and must identify particular portions of the record that demonstrate the absence of a genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009). "Once the moving party satisfies its burden, the burden shifts to the nonmoving party to set forth specific facts showing a triable issue.'" Wrench LLC v. Taco Bell Corp., 256 F.3d 446, 453 (6th Cir. 2001) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). In response to a summary judgment motion, the opposing party may not rest on its pleadings, nor "rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact' but must make an affirmative showing with proper evidence in order to defeat the motion." Alexander, 576 F.3d at 558 (internal quotations omitted).

D. Analysis

As set forth above, Abram claims that Nurse Parsons violated his Eighth Amendment right to be free from cruel and unusual punishment when she failed to provide medical treatment to him. Abram also claims that ARUS Pendell violated his First Amendment rights when Pendell purportedly transferred him to the PCF in retaliation ...


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