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Simmons v. Rogers

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

March 30, 2017

NIKO S. SIMMONS, # 197744, Plaintiff,
PENNY ROGERS, et al., Defendants.



         This is a civil rights action brought pro se by a state prisoner under 42 U.S.C. §1983. Plaintiff is an inmate at the Chippewa Correctional Facility (URF). (ECF No. 54). This lawsuit arises out of conditions of plaintiff's confinement in 2011 and 2012 at the Kinross Correctional Facility. (KCF). The defendants are Nurse Practitioner Penny Rogers and Corizon.[1] Plaintiff alleges that on August 4, 2011, he experienced an allergic reaction to Tegretol and that he received inadequate pain medication following outpatient surgery on September 11, 2012, to remove a cyst on his back. Plaintiff alleges that defendants were deliberately indifferent to his serious medical needs in violation of his rights under the Eighth Amendment's Cruel and Unusual Punishments Clause. Plaintiff also alleges that Nurse Practitioner Rogers was grossly negligent in violation of Michigan law when she diagnosed plaintiff as having strep throat rather than Stevens-Johnson syndrome. Plaintiff seeks an award of damages.

         The matter is before the Court on defendants' motion for summary judgment. (ECF No. 37). Plaintiff filed his response. (ECF No. 43, 45). For the reasons set forth herein, plaintiff's state-law claim will be dismissed pursuant to the statutory authority provided in 28 U.S.C. § 1915(e)(2)(B)(ii) because he fails to state a claim upon which relief can be granted. Defendants' motion for summary judgment will be granted and a judgment will be entered in defendants' favor on all plaintiff's federal claims.

         Preliminary Notes

         A few matters need to be noted at the outset. Plaintiff concedes that he “has not provided any evidentiary support for his claims[.]” (ECF No. 43, PageID.515). Plaintiff noted in his complaint that his allegations were made on “information and belief.” (ECF No. 1, PageID.33, 63, 87). “[S]tatements made on belief or on information and belief, cannot be utilized on a summary-judgment motion” and here, the Court cannot discern what statements plaintiff made on personal knowledge and under penalty of perjury and those he made on mere information and belief. See Ondo v. City of Cleveland, 795 F.3d 597, 605 (6th Cir. 2015). Thus, plaintiff's complaint is not a verified complaint that could be considered as his affidavit in opposition to defendants' motion. See, e.g., Brown v. City of Grand Rapids, No. 1:13-cv-964, 2016 WL 4920144, at *3 n.3 (W.D. Mich. June 13, 2016); Naumovski v. Federal Nat'l Mort. Ass'n, No. 15-11466, 2016 WL 949220, at *2 (E.D. Mich. Mar. 14, 2016).

         In any event, “verified” arguments and legal conclusions are not evidence. Legal conclusions, whether asserted in an affidavit or verified complaint, do not suffice to create a genuine issue of material fact for trial. See Medison Am. Inc. v. Preferred Med. Sys., LLC, 357 F. App'x 656, 662 (6th Cir. 2009); Houston v. McDaniels, No. 1:12-cv-299, 2014 WL 1493402, at *2 n. 2 (W.D. Mich. Apr.16, 2014). “Arguments in parties' briefs are not evidence.” Duha v. Agrium, Inc., 448 F.3d 867, 879 (6th Cir. 2006).

         Although plaintiff's briefs contain references to Federal Rule of Civil Procedure 56(d) (ECF No. 42, PageID.514; ECF No. 45, PageID.555), he did not file the “affidavit or declaration” required by the Rule. Accordingly, the Court, in its discretion, denies plaintiff's request to deny defendants' motion for summary judgment or defer consideration of the motion. See Scadden v. Werner, No. 16-1876, __ F. App'x __, 2017 WL 384874, at *3 (6th Cir. Jan. 27, 2017) (“even when a party provides a Rule 56(d) affidavit and a motion to extend discovery, the rule only provides that a court ‘may' extend the discovery deadline.”); Cacevic v. City of Hazel Park, 226 F.3d 483, 488 (6th Cir. 2000). The primary consideration is whether the party seeking an extension was “diligent in pursuing discovery.” Scadden, 2017 WL 384874, at *3. Plaintiff here was not diligent in pursuing discovery. (See ECF No. 48).

         Summary Judgment

         Summary judgment is appropriate when the record reveals that there are no genuine issues as to any material fact in dispute and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); McKay v. Federspiel, 823 F.3d 862, 866 (6th Cir. 2016). The standard for determining whether summary judgment is appropriate is “whether ‘the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.' ” Rocheleau v. Elder Living Const., LLC, 814 F.3d 398, 400 (6th Cir. 2016) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). The Court must consider all pleadings, depositions, affidavits, and admissions on file, and draw all justifiable inferences in favor of the party opposing the motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); France v. Lucas, 836 F.3d 612, 624 (6th Cir. 2016).

         When the party without the burden of proof seeks summary judgment, that party bears the initial burden of pointing out to the district court an absence of evidence to support the nonmoving party's case, but need not support its motion with affidavits or other materials “negating” the opponent's claim. See Morris v. Oldham County Fiscal Court, 201 F.3d 784, 787 (6th Cir. 2000); see also Minadeo v. ICI Paints, 398 F.3d 751, 761 (6th Cir. 2005). Once the movant shows that “there is an absence of evidence to support the nonmoving party's case, ” the nonmoving party has the burden of coming forward with evidence raising a triable issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To sustain this burden, the nonmoving party may not rest on the mere allegations of his pleadings. See Ellington v. City of E. Cleveland, 689 F.3d 549, 552 (6th Cir. 2012); see also Scadden v. Warner, No. 16-1876, __ F. App'x __, 2017 WL 384874, at * 4 (6th Cir. Jan. 27, 2017). The motion for summary judgment forces the nonmoving party to present evidence sufficient to create a genuine issue of fact for trial. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir. 1990); see Newell Rubbermaid, Inc. v. Raymond Corp., 676 F.3d 521, 533 (6th Cir. 2012). “A mere scintilla of evidence is insufficient; ‘there must be evidence on which a jury could reasonably find for the [non-movant].' ” Dominguez v. Corr. Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009) (quoting Anderson, 477 U.S. at 252); see Brown v. Battle Creek Police Dep't, 844 F.3d 556, 565 (6th Cir. 2016).


         The following facts are beyond genuine issue. Plaintiff is an inmate in the custody of the Michigan Department of Corrections. He is currently an inmate at the Chippewa Correctional Facility (URF). Plaintiff was an inmate at the Kinross Correctional Facility (KCF) at all times relevant to his complaint. Penny Rogers is a licensed nurse practitioner and during the relevant time period in 2011 and 2012, she, and other health care professionals provided plaintiff with medical treatment. (Rogers Decl. ¶¶ 2-32, ECF No. 37-2, PageID.328-36).

         The Pain Management Committee was established by the MDOC to address the appropriate and consistent management of pain for MDOC inmates. Upon review of the information regarding the patient's condition and pain, including a review of the patient's medical record, the Pain Management Committee makes a recommendation aimed at maintaining the patient's level of function while addressing his pain complaints. Pain control must be balanced with the need to function in life and to minimize the risk of prescription drug abuse. Excessive medication, while it may resolve a patient's pain, will threaten the patient's health and undermine the quality of that patient's life. (Rogers Decl. ¶ 8, PageID.330; Bomber Decl. ¶¶ 5-9, ECF No. 37-4, PageID.340-42).

         On June 1, 2011, the Pain Management Committee noted plaintiff's history of substance abuse and his refusal of any pain medication in March 2011. The Pain Management Committee recommended offering plaintiff Tylenol and the NSAID of his choice up to the maximum dosage. In addition, the Pain Management Committee prescribed Tegretol for four months, with a gradual increase to a dosage of 200 mg. twice a day. (Rogers Decl. ¶ 10, PageID.331; ECF No. 39-1, PageID.386). Tegretol is an anticonvulsant. In addition to treating seizures, Tegretol is also used to treat nerve pain because it works by decreasing nerve impulses. Peer reviewed publications have confirmed the analgesic properties of Tegetol and other anti-convulsant medications for the management of chronic pain since the mid-1980s. There is no indication that this course of treatment was recommended for plaintiff because of cost, but rather it was ...

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