United States District Court, W.D. Michigan, Southern Division
REPORT AND RECOMMENDATION
KENT United States Magistrate Judge
a pro se civil rights action brought by a state
prisoner in the custody of the Michigan Department of
Corrections (MDOC) pursuant to 42 U.S.C. § 1983. This
matter is now before the Court on motions for summary
judgment filed by defendants Dr. Bomber, Corizon Health, Inc.
(Corizon), Dr. Tan and Dr. Whiteman (docket no. 23),
defendants Dr. Bogerding, Corrections Officer (CO) Bourque,
Nurse Buren, Co Douglas, CO Hansen, CO Kingsley, Nurse Myers,
Dr. Pandya, Deputy Warden Pratt, CO Sherman, CO Sobeck, CO
Sour, CO Wilson and CO Zaborowski (docket no. 27), and
defendant CO Ecklin (docket no. 32).
filed a complaint against 23 defendants arising from injuries
he sustained when other prisoners attacked him on April 26,
2014, and medical staff failed to provide medical treatment
while he was incarcerated at the Pugsley Correctional
Facility (MPF). Compl. (docket no. 1). According to medical
records on that date, plaintiff was hit in the head
“with what he believes was a padlock in a sock.”
Munson Medical Center Records (April 26, 2014) (docket no.
1-2, PageID.75). A consultation at the medical center found
that plaintiff had significant fractures of the right nasal
bone and medial orbital wall as well as right infraorbital
rime due to direct trauma from his assailant, and that
“the septum appears paradoxically shifted to the right
side.” Consultation Report (docket no. 1-2, PageID.86).
The doctor recommended “operative fixation of all of
the above.” Id.
allegations involve events leading up to, and including, the
April 26, 2014 attack at MPF; medical treatment provided by
MPF personnel after the attack; medical treatment provided by
personnel at the MDOC's Duane Waters Hospital (DWH)
through May 2014; plaintiff's first eye surgery at the
University of Michigan in August 2014; plaintiff's second
eye surgery in September 2014; and a recommended third eye
surgery which has not yet occurred. Id.
complaint consists of 25 counts. Counts 1, 2, 3, 4, 5, 6, 7,
8, 10, 15, 16, and 17 allege that MPF personnel Warden Harry,
Deputy Warden Pratt, Capt. Pant, Capt. Snow, and CO's
Sherman, Douglas, Sour, Wilson, Ecklin, Kingsley, Zaborowski
and Bourque violated plaintiff's Fourteenth Amendment
rights by failing to prevent the attack. Counts 9, 11, 12, 13
and 14 allege that MPF personnel Nurse Buren and CO's
Zaborowski, Bourque, Hansen and Sobeck violated
plaintiff's Eighth Amendment rights by being deliberately
indifferent to his serious medical needs after the attack.
Counts 18, 19 and 20 allege that DWH personnel Dr. Tan, Dr.
Pandya and Nurse Myers violated plaintiff's Eighth
Amendment rights by being deliberately indifferent to his
serious medical needs in 2014. Counts 21, 22 and 23 allege
that Drs. Bomber, Bogerding and Whiteman were supervising
medical doctors for the MDOC and Corizon commencing in 2014
and as “Gate Keepers” prevented plaintiff from
receiving his necessary eye surgeries. Count 24 alleges that
Corizon violated plaintiff's Eighth Amendment rights by
delaying and refusing treatments for plaintiff. Count 25
alleges that the MDOC violated plaintiff's Fourteenth and
Eighth Amendment rights. After screening, the Court dismissed
defendants Capt. Pant, Capt. Snow, Warden Harry and the MDOC,
and authorized service on the remaining 19 defendants.
Opinion and Order (docket nos. 2 and 3).
Defendants' motions for summary judgment
have moved for summary judgment on the ground that plaintiff
failed to properly exhaust a grievance with respect to his
claims. “The court shall 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). Rule 56 further
provides that a party asserting that a fact cannot be or is
genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1).
Copeland v. Machulis, 57 F.3d 476 (6th Cir. 1995),
the court set forth the parties' burden of proof in a
motion for summary judgment:
The moving party bears the initial burden of establishing an
absence of evidence to support the nonmoving party's
case. Once the moving party has met its burden of production,
the nonmoving party cannot rest on its pleadings, but must
present significant probative evidence in support of the
complaint to defeat the motion for summary judgment. The mere
existence of a scintilla of evidence to support
plaintiff's position ...