United States District Court, W.D. Michigan, Southern Division
L. Maloney, United States District Judge
a civil rights action brought by a state prisoner pursuant to
42 U.S.C. § 1983. The Court has granted Plaintiff leave
to proceed in forma pauperis. Under the Prison
Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321
(1996), the Court is required to dismiss any prisoner action
brought under federal law if the complaint is frivolous,
malicious, fails to state a claim upon which relief can be
granted, or seeks monetary relief from a defendant immune
from such relief. 28 U.S.C. §§ 1915(e)(2), 1915A;
42 U.S.C. § 1997e(c). The Court must read
Plaintiff's pro se complaint indulgently,
see Haines v. Kerner, 404 U.S. 519, 520 (1972), and
accept Plaintiff's allegations as true, unless they are
clearly irrational or wholly incredible. Denton v.
Hernandez, 504 U.S. 25, 33 (1992). Applying these
standards, Plaintiff's action will be dismissed as
frivolous and for failure to state a claim.
Demetrius Rogers is presently incarcerated with the Michigan
Department of Corrections (MDOC) at the Kinross Correctional
Facility (KCF) in Kincheloe, Michigan. Plaintiff has filed
suit against Defendants Dr. Lyle S. Mindlin and Corizon
Medical Services. Plaintiff alleges that he suffered an
injury, specifically a fracture, to his right elbow when he
was arrested on August 2, 2010. He contends that since he was
incarcerated with the MDOC on January 14, 2011, he has not
been provided the treatment he wants for his elbow injury.
alleges that during the first week of March, 2011, he was
seen by an unknown physician at the E.C. Brooks Correctional
Facility (LRF). That physician directed Plaintiff to use warm
compresses and to stretch his right arm to improve extension
was transferred to the Muskegon Temporary Facility (MTF) on
April 7, 2012. In that facility he made several healthcare
requests regarding the pain, disfigurement, and discomfort in
his right elbow.
was transferred back to LRF on May 8, 2013, for x-rays of his
right elbow. The x-rays were read by Defendant Dr. Lyle S.
Mindlin. Plaintiff attaches Defendant Mindlin's unsigned
radiology report to his complaint. (May 8, 2013 Radiology
Report, ECF No. 1-1, PageID.7.) Defendant Mindlin found
“no conclusive radiographic evidence of fracture,
dislocation, osseous or joint pathology.” Id.
His impression was that Plaintiff had a “[n]ormal right
elbow.” Id. Plaintiff contends that Defendant
Mindlin misread or altered Plaintiff's x-ray films.
(Compl., ECF No. 1, PageID.4.) Plaintiff filed a grievance
against Defendant Mindlin more than three years after his
radiology report. (Grievance LRF16120236128E, ECF No. 1-1,
PageID.13.) The grievance was rejected as untimely.
24, 2013, Plaintiff was transferred to the Ojibway
Correctional Facility (OCF) where he continued to seek
medical treatment for pain because of his injured elbow. He
filed healthcare requests seeking treatment (OCF Healthcare
Requests and Responses, ECF No. 1-1, PageID.34-63), followed
by a grievance when he thought the treatment was inadequate.
(Grievance OCF1310-628-12D1, ECF No. 1-1, PageID.18-20.)
August 14, 2015, Dr. Dale Asche ordered x-rays of
Plaintiff's right elbow. On August 20, 2015, Dr. Marinus
Van Ooyen reported his findings regarding the x-rays:
There is deformity of the olecranon process which is probably
due to a previous fracture. There is considerable arthritic
change in the elbow joint at this time. The bones are in
normal alignment. I do not see any evidence of a acute
fracture. No effusion is seen.
IMPRESSION: Arthritis. Deformity of the olecranon process
which is probably due to a previous fracture.
(Radiology Report, ECF No. 1-1, PageID.9.) Dr. Asche reported
to Plaintiff that:
Right elbow shows evidence of a previous fracture. Otherwise
there is arthritis. Of note, bone alignment is normal, and no
new fracture is present.
(Diagnostic Testing Result Notification, ECF No. 1-1,
alleges that he made several requests to see an orthopedic
surgeon while he was incarcerated at OCF. Each request was
denied. He filed another grievance regarding the treatment
provided for his elbow on October 1, 2015. (Grievance OCF
1510-0607-12D1, ECF No. 1-1, PageID.21-25.)
has since been transferred to the Baraga Correctional
Facility (AMF), the Marquette Branch Prison (MBP) (MBP
Healthcare Requests and Responses, ECF No. 1-1, PageID.61-64)
and then, finally, to the Kinross Correctional Facility (KCF)
(KCF Healthcare Requests and Responses, ECF NO. 1-1,
PageID.65-84). Plaintiff continued to seek additional
treatment for his elbow, specifically consultation with an
orthopedic specialist. The doctors and nurses offered
treatment, but not the specific treatment sought by
instant complaint is not the first time Plaintiff has brought
to the Court's attention his claim that the doctors and
nurses of the MDOC are failing to provide the treatment he
wants for his elbow. By complaint dated August 12, 2014,
Plaintiff raised the same claims, but he named as defendants
OCF, MTF, and LRF. Rogers v. Ojibway Correctional
Facility , No. 2:14-cv-171 (W.D. Mich.) (herein
Rogers I) (Compl., 2:14-cv-171, PageID.1-4). The
Court dismissed Plaintiff's complaints against the MDOC
correctional facilities because of sovereign immunity; but
the Court also considered whether Plaintiff had stated a
claim against the individual healthcare providers he
referenced in his complaint. (Op., 2:14-cv-171,
PageID.14-22.) The Court concluded that Plaintiff had failed
to sufficiently allege the objective and subjective elements
of an Eighth Amendment claim for deliberate indifference to
serious medical needs. (Op., 2:14-cv-171, PageID.20-21.)
responded to the Rogers I opinion and judgment by
filing a motion to amend his complaint to name the individual
defendants and to conform his allegations to Eighth Amendment
pleading requirements, albeit in very conclusory fashion.
(Proposed Am. Compl., 2:14-cv-171, PageID.38-42.) The Court
rejected Plaintiff's motion because the case was already
closed. (Ord., 2:14-cv-171, PageID.37.)
appealed this Court's Rogers I judgment to the
Sixth Circuit Court of Appeals. Rogers v. Ojibway
Correctional Facility, , No. 14-2200 (6th Cir.) (herein
Rogers I Appeal). After filing his appellate brief,
Plaintiff also filed a motion for leave to file an amended
complaint. Rogers I Appeal (Mot. to Amend, ECF No.
9.) Plaintiff's proposed amended complaint was virtually
identical to the proposed amended complaint he filed in this
Court. (Id.) The Sixth Circuit affirmed this
Court's judgment dismissing Plaintiff's Rogers
I complaint and rejection of the proposed ...