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Rogers v. Mindlin

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

July 12, 2017

LYLE MINDLIN, Defendants.


          Paul L. Maloney, United States District Judge

         This is 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.

         Factual Allegations

         Plaintiff 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.

         Plaintiff 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 and flexion.

         Plaintiff 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.

         Plaintiff 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. (Id., PageID.13-17.)

         On May 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.)

         On 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, PageID.8.)

         Plaintiff 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.)

         Plaintiff 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 Plaintiff.

         The 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.)

         Plaintiff 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.)

         Plaintiff 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 ...

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