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Weatherspoon v. Jindell

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

March 21, 2017

MORRIS WEATHERSPOON, Plaintiff,
v.
JINDELL, Defendant.

          R. Steven Whalen Magistrate Judge.

          OPINION AND ORDER DENYING MOTION FOR EXTENSION OF TIME [124], ADOPTING REPORT AND RECOMMENDATIONS [120, 122, 123], AND DENYING MOTIONS FOR ENFORCEMENT OF INJUNCTION AND TO ADMIT EVIDENCE [116, 117]

          LAURIE J. MICHELSON U.S. DISTRICT JUDGE

         Plaintiff Morris Weatherspoon is a Michigan prisoner proceeding pro se. He filed this Complaint against several medical professionals, who, he claims, forcibly administered to him “powerful antipsychotic medications” which caused severe side effects, denied him medical care for ongoing dental problems, and denied him emergent care for an “abscessed” femur. (See R. 1.) All defendants except physician's assistant Rosilyn Jindal (named as “Dr. Jindell” in the complaint) have been dismissed. (R. 59.) Weatherspoon claims that Jindal was deliberately indifferent to his serious medical need-treatment for his femur-in violation of his rights under the Eighth Amendment. The Court disagrees and will affirm the Magistrate Judge's recommendation to dismiss the case.

         I. BACKGROUND

         Jindal is a physician's assistant (“PA”) at Gus Harrison Correctional Facility. (R. 100-2, PID 882.) She evaluated and treated Plaintiff “regarding complaints of back pain and a mass on his left leg” one time in September 2013. (Id.) Jindal avers that she was able to review Plaintiff's medical files before treating him. (Id. at PID 883.) Those files revealed that Weatherspoon had an x-ray of his left femur in August 2012, which revealed a mass. (Id. at PID 883.) The radiologist concluded that the mass “possibly represents old healed trauma . . . clinical correlation is recommended if other etiologies are of concern.” (R. 102-1, PID 921.) Shortly thereafter, in September 2012, PA Michael P. Millette updated Weatherspoon's chart, stating, “Email correspondence with radiologist indicates that [Weatherspoon] should have a follow-up x-ray in three months. He reports that the likelihood of this being pathological is low.” (Id. at PID 922.) It is unclear whether the follow-up x-ray was ever scheduled. Nonetheless, in August 2013, Nurse Laura Rock examined Weatherspoon following complaints of pain in the lower back and left knee. (Id. at PID 931.) Rock reported that she “palpated” a “mass . . . above left knee.” (Id.) She stated it was “not noticeable while seated, or without palpitation” and there was “no guarding upon examination.” (Id.) Rock ordered ice/cool compresses, heat applications, a bandage, and exercises in addition to the Tylenol that had already been recommended. (Id. at PID 932.)

         Jindal examined Weatherspoon on September 11, 2013, after he requested a bottom bunk detail due to pain in his leg and back. (Id. at PID 937.) At that time, Weatherspoon reported pain in his left thigh radiating to his back. (Id.) Jindal reported, “Likely exostosas [sic] of the left thigh. Continue Tylenol . . . for pain and inflammation. Also encouraged to purchase muscle rub and use warm compresses on the affected area.” (Id. at PID 938.) In her declaration, Jindal explained that “Exostosis is the formation of new bone bumps or cysts on the surface of bone due to excess calcium. Conservative treatment of the condition is to observe the growth over time to determine if it is growing or getting worse and managing any related pain with medication.” (R. 100-2, PID 884.) Jindal also ordered an x-ray of Weatherspoon's lower spine. (R. 201-1, PID 921.) This was the first and last time Jindal saw Weatherspoon. (Id. at PID 886.)

         Weatherspoon was transferred to Muskegon Correctional Facility shortly after seeing Jindal. When he got to the next facility, PA Barbara Bien ordered x-rays of both his lower spine and his left thigh. (Id. at PID 946.) The radiology report from that x-ray stated, “Five views of the left femur demonstrates no displaced fracture or any other acute osseous abnormalities. No abnormal soft tissue densities were present. No radiopaque foreign bodies were present. . . . On the lateral projection of the distal femur, there is a small elevation of the bone cortex that is seen. It appears to be a benign lesion such as an extosis and possibly results from previous old healed trauma.” (Id. at PID 947.)

         Jindal moved for summary judgment on July 22, 2016, arguing that no genuine issue of material fact existed as to whether she was deliberately indifferent to Weatherspoon's leg issue, and in the alternative, Weatherspoon failed to exhaust his administrative remedies for this claim. (R. 100.) On February 28, 2017, Executive Magistrate Judge R. Steven Whalen entered his report and recommendation recommending that the Court grant Jindal's motion for summary judgment. (R. 120.)

         II. DISCUSSION

         A. Motion for Extension of Time (R. 124.)

         At the conclusion of his report and recommendation, the Magistrate Judge informed the parties: “Any objections to this Report and Recommendation must be filed within 14 days of service of a copy hereof as provided for in 28 U.S.C. §636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal.” (R. 120, PID 1231.) Instead of filing timely objections, Weatherspoon submitted a motion to extend signed on March 10, 2017, and entered in CM/ECF on March 17, 2017. (R. 124.) Weatherspoon says he needs an additional 60 days to file his objections because he is presently confined to administrative segregation and has additional litigation obligations in the case Weatherspoon v. Thibault, in which he “has a deadline to file [a] pretrial narrative statement[.]” (R. 124, PID 1250.) This request will be denied.

         Weatherspoon stated in a different filing that he was placed in administrative segregation on January 30, 2017. (R. 119, PID 1080.) Yet, he was still able to organize and file over 100 pages of documents that he requested the Court enter into the record on February 6, 2017. (R. 119, PID 1081.) And this Court has already denied a motion for extension of time Weatherspoon previously filed due to Weatherspoon being confined in administrative segregation. (R. 52.) Moreover, the Court was able to access the docket in Weatherspoon v. Thibault, No. 14-cv-00108 (W.D. Mich. filed May 5, 2014). It appears that Weatherspoon has been able to file two objections, four affidavits, a motion for preliminary injunction, a letter, and two motions for an extension of time in that case since January 30. Id. (docket entries 124-130; 132-134).

         Thus, the Court is not convinced that Weatherspoon did not have time to file objections in this case. Therefore, Weatherspoon's motion for extension of time (R. 124) will be DENIED.

         B. Report and Recommendation ...


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