United States District Court, W.D. Michigan, Southern Division
NIKO S. SIMMONS, # 197744, Plaintiff,
PENNY ROGERS, et al., Defendants.
L. MALONEY UNITED STATES DISTRICT JUDGE.
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. 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.
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
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).
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).
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.
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
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).
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.
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,
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 ...