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Rose v. Heidi Washington

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

August 31, 2017

WILLIE ROSE, Plaintiff,
v.
HEIDI WASHINGTON, et al., Defendants.

          OPINION

          GORDON J. QUIST 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, the Court will dismiss Plaintiff's complaint for failure to state a claim against Defendants Washington, Sherry, McKee, Rapelje, Woods, Borgerding, Kernstein, Snider, Olsen, Baker, Simmons, Vining, Witty, Bowers, Corizon Health, LaPlaunt, Ball, Jenkins, Ander Jack, Anderson, Mastaw, McLaren, Parkinson, McPherson, Lamb, Groves, Sheldon, Curley, Haapala, Unknown Parties ##1-11 and ##13-16, Recla, Cryderman, Bury, Mackenzie, Goodell, MacMasters, Vollick, Kemp, and Unknown Parties named in supplemental complaints (ECF Nos. 32 and 34). However, Plaintiff's Eighth Amendment claims against Defendants Damron, Covert, Bonefeld, Rogers, McDowell, Kinny, Paquette, and Canlas, his retaliation claims against Defendants Fretag, Covert, Rogers, and McDowell, and his Fourth Amendment claims against Defendants Rogers, McDowell, and Unknown Party #12 will not be dismissed on initial review.

         Discussion

         I. Factual allegations

          Plaintiff, Willie Rose, a prisoner currently confined at the Alger Maximum Correctional Facility (LMF), filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 against forty-nine individuals. In Plaintiff's amended complaint (ECF No. 26), he names Defendants MDOC Director Heidi Washington, Deputy Director Jeri-Ann Sherry, Deputy Director Unknown McKee, Regional Prison Administrator Lloyd Rapelje, Warden Jeffrey Woods, Assistant Chief Medical Officer William Borgerding, Chief Medical Officer Unknown Kernstein, Joseph Damron, RN, Corrections Officer Unknown Snider, Corrections Officer Unknown Olsen, Corrections Officer Unknown Baker, Corrections Officer Unknown Simmons, Corrections Officer Unknown Vining, Elizabeth Kinny, RN, Physician's Assistant Danielle Paquette, Chief Executive Officer Corizon Health Karey Witty, Chief Operating Officer Corizon Health Scott Bowers, Corizon Health, Dr. Bienvenido Canlas, Assistant Resident Unit Supervisor Rebecca Fretag, Gerald Covert, RN, Health Unit Manager Melissa LaPlaunt, Dr. Unknown Bonefeld, Wendy Ball, RN, Health Unit Manager C. Jenkins, Assistant Grievance Coordinator Unknown Ander Jack, Grievance Coordinator Unknown Anderson, Administrative Assistant Unknown Mastaw, Warden Unknown McLaren, Health Care Worker P. Parkinson, Prisoner Accounting Unknown McPherson, P. Lamb, RN, Policy Section Manager Cheryl Groves, Administrator at Bureau of Health Care Joanne Sheldon, Assistant Deputy Director M. Curley, and Heather Haapala.

         Plaintiff also names the following unknown parties as Defendants in this action: Unknown Party #1 Regional Health Administrator, Unknown Party #2 Corrections Officer, Unknown Party #3 Health Care Worker, Unknown Party #4 Health Care Worker, Unknown Party #5 Health Care Worker, Unknown Party #6 Health Care Worker, Unknown Party #7 Health Care Worker, Unknown Party #8 Corrections Officer, Unknown Party #9 Shift Commander, Unknown Party #10 MDOC Official, Unknown Party #11 Corizon Health Official, Unknown Party #12 Corrections Officer, Unknown Party #13 Corrections Officer, Unknown Party #14 Training Division Coordinator, Unknown Party #15 Health Information Compliance Coordinator, and Unknown Party #16 Records Administrator.

         Plaintiff's complaint with attached exhibits is 299 pages long. Plaintiff claims that all of the named Defendants were deliberately indifferent to Plaintiff's serious medical need on November 22, 2015, which caused Plaintiff to suffer unnecessary pain and injury, and could have resulted in Plaintiff's death. Plaintiff claims that in the early morning on November 20, 2015, he informed Defendant Unknown Party #2 that he was suffering from symptoms of cholecystitis. Defendant Unknown Party #2 called health services twice, but did not get a response. Due to lack of proper training, Defendant Unknown Party #2 told Plaintiff that there was no answer, so he would have to wait until Monday to be treated.

         In the early morning of November 22, 2015, Defendant Snider called health care and arranged for Plaintiff to be seen by Defendant Damron, who gave Plaintiff over the counter medication, but refused to provide any other care. Defendant Damron told Plaintiff that he believed Plaintiff had a virus and would be alright. At 9:00 a.m., Plaintiff told Defendant Snider that Defendant Damron had refused to give him treatment. Defendant Snider responded that there was no one else in health care and did nothing while Plaintiff suffered from severe pain, dizziness, vomiting, and chills. At 2:15 p.m. on the same date, Defendants Olsen and Baker called health care for Plaintiff, but were denied access by Defendant Damron. Defendant Damron asked them to put Plaintiff on the phone and told him that he was not going to be given treatment. Plaintiff stated that his condition had worsened and pleaded to be treated. Defendant Damron told Plaintiff that he was going home soon, but he would leave a note for the nurse to follow up with Plaintiff. When Plaintiff relayed this information to Defendants Olsen and Baker, they told him that they were sorry, but there was nothing more that they could do. Plaintiff states that the nurse, who was Unknown Party #5, never followed up with Plaintiff.

         Plaintiff attempted to take Tums and Tylenol, but became overwhelmed with extreme pain and dizziness and lost consciousness. When Plaintiff became conscious again, his roommate was asking him if he was ok. The roommate then went to get help. Plaintiff fell back into unconsciousness and when he became conscious again, Defendant Simmons was asking him questions. Plaintiff told Defendant Simmons that he was suffering from extreme back and stomach pain and pleaded for help. Defendant Simmons called health services for assistance, but Unknown Party #6 refused to respond because no health professionals were in the station. Defendant Simmons called again at 10:40 p.m., but there was still no health professional in the station. Defendant Unknown Party #7 then directed Defendant Simmons to bring Plaintiff to health services. Defendants Simmons and Vining complied, but dropped Plaintiff three times during the process. Once Plaintiff arrived at health services, he was required to wait for the arrival of Defendant Kinny who was in another facility. When Defendant Kinny arrived, Plaintiff explained his symptoms. Defendant Kinny asked how Plaintiff had gotten into the wheelchair, and Defendants Vining and Unknown Party #8 stated that they had put Plaintiff in the chair. Defendants Kinny, Vining, and Unknown Party #8 then went into an adjacent room and began to argue. Defendant Kinny then asked Plaintiff if his back hurt, and Plaintiff stated that it did. After examining Plaintiff, Defendant Kinny called Defendant Paquette, who ordered that Plaintiff be taken to the hospital. Defendants Kinny, Vining, and Unknown Party #8 then began accusing Plaintiff of faking an illness and being drunk. Plaintiff was told that the state was going to charge him a big medical bill for the incident. Defendant Kinny then stated that she had to go and directed officers to prepare Plaintiff for transport. Defendant Kinny left Plaintiff with no medical professionals in attendance. Defendants Vining and Unknown Party #8 then pushed Plaintiff into the waiting room and left him there.

         Defendant Paquette decided that corrections officials would transport Plaintiff to the hospital. Defendants Paquette, Kinny, and Unknown Parties #9 and #10 allowed Plaintiff to be taken to the hospital in a small squad car without any accompanying medical personnel. At 11:30 p.m., Defendant Unknown Party #12 performed a body search on Plaintiff by jerking his pants off while Plaintiff was in the wheelchair, causing Plaintiff extreme back pain. Defendant Unknown Party #12 then pushed Plaintiff outside to a small squad car, where Defendant Unknown Party #13 grabbed Plaintiff and put him in the back seat to be transported to the hospital without the assistance of any health care professional.

         Plaintiff was taken to War Memorial Hospital, where he was diagnosed as having acute cholecystitis and was scheduled for immediate surgery. On November 23, 2015, the doctor advised Plaintiff of the gravity of his condition, which involved perforation of the gallbladder with fluid leakage and severe infection, and told Plaintiff that he wanted to operate as soon as Plaintiff's white blood cell count came down. Plaintiff had surgery on November 24, 2015. After the surgery, the doctor told Plaintiff that his gallbladder had been gangrenous and that the infection had spread to Plaintiff's liver, so the doctor had to remove part of Plaintiff's liver, as well as Plaintiff's gallbladder. The doctor explained that the liver involvement would have contributed to Plaintiff's severe pain and excessive bleeding. Because of the severity of Plaintiff's condition, he required intravenous antibiotics and an extended hospital stay. Plaintiff was sent to the Chippewa Correctional Facility (URF) on November 26, 2015, where he received follow-up care by URF nursing staff and was scheduled to see Defendant Canlas.

         On November 30, 2015, Defendant Canlas saw Plaintiff for his post-op visit, but refused to address Plaintiff's severe back pain. Defendant Canlas stated that there had been no reports of breaks or fractures in Plaintiff's back and that Plaintiff should lose some weight. Defendant Canlas told Plaintiff that if he wanted to be seen for his back, he should kite. Plaintiff protested that he was in severe pain and that waiting for an appointment would be cruel. Plaintiff also complained that he could not afford the co-pay for the appointment. Defendant Canlas advised Plaintiff that he would not be charged a co-pay because the visit would be a follow-up to the November 22, 2015, medical emergency. Defendant Canlas then cancelled the visit. Plaintiff submitted a kite and was eventually charged a co-pay in violation of policy.

         On December 17, 2015, Defendant Canlas saw Plaintiff for his back pain and refused to do anything but give him OTC Tylenol and tell him to lose weight. When Plaintiff complained about the co-pay, Defendant Canlas told him that he should not have been charged. During the appointment, Plaintiff asked about his medical records from November 22, 2015. Defendant Canlas told Plaintiff that the records were about six pages long and that they showed that Plaintiff had told Defendant Damron that he was suffering from serious gallbladder pain. Plaintiff went to the records office to ask for a copy of the November 22, 2015, medical records. However, when the records were provided, they were incomplete and consisted of only two pages. Plaintiff attempted to order the records again on April 29, 2016, but he was only given a cover sheet with no substantive information.

         On December 1, 2015, Plaintiff asked Defendant Fretag for the names of all individuals who were involved with Plaintiff's treatment on November 22, 2015, but Defendant Fretag became verbally abusive and refused to give Plaintiff any information. On December 2, 2015, Plaintiff filed a grievance regarding the treatment he received from prison officials on November 22, 2015, as well as a grievance on Defendant Fretag for her failure to provide him with the names of parties involved in his treatment on November 22, 2015. However, the grievance was not filed by Defendant McLean until December 15, 2015, after Plaintiff's family called the prison to ask why Plaintiff's grievance had not been processed. During the interim period, Plaintiff was seen by health care on December 2, 7, and 9. At each appointment, Plaintiff was scheduled for a new follow-up appointment with a nurse.

         Plaintiff wrote to Defendants Woods and LaPlaunt, advising them that he had been suffering from serious back pain and was being denied treatment. Plaintiff did not receive a response from either Defendant Woods or Defendant LaPlaunt. On December 15, 2015, Plaintiff was seen by Social Worker Dreary for stress and depression. Mr. Dreary counseled Plaintiff and told him that he was scheduled to be called out to see health services twice the next day. On December 16, 2015, Plaintiff was seen by Defendant Covert, who told Plaintiff that he was causing problems for good people. Plaintiff said he was not there to talk about the grievance, but only to be treated. Plaintiff also told Defendant Covert that according to Defendant Canlas, he should not be charged a co-pay. Defendant Covert told Plaintiff that there was nothing wrong with him, and that he was going to be charged a co-pay every time he visited health services. Plaintiff told Defendant Covert that Defendant Damron had set up the appointment so that Plaintiff could be seen by the doctor if he had not already been seen, and could get an extension on the hot water bottle if necessary. In response, Defendant Covert took Plaintiff's hot water bottle. Defendant Covert also falsified Plaintiff's records by stating that his back injury was caused by a fall from his bunk and not related to the way he was treated for gallbladder problems on November 22, 2015. Defendant Covert then ripped up some papers from Plaintiff's medical chart and made him fill out a new kite. Plaintiff claims that Defendant Covert's treatment of Plaintiff was motivated by a desire to retaliate against him for writing the December 2, 2015, grievance and insinuated that Plaintiff was too comfortable at URF.

         Shortly thereafter, Defendant Fretag stated that Defendants Covert and Damron had told her that Plaintiff was trying to get them in trouble, that it was not going to work because Plaintiff was a prisoner, and that Defendant Damron wanted Plaintiff to turn in his hot water bottle. Less than a week later, Plaintiff was transferred at the behest of Defendant Fretag, which caused the loss of Plaintiff's property and made it difficult for him to meet a court deadline. Plaintiff claims that this transfer was motivated by a desire to retaliate against Plaintiff for engaging in protected conduct.

         Plaintiff alleges that Defendants Corizon Health, Borgerding, Witty, Bowers, Paquette, and Unknown Parties #1, #9, #10, and #11 failed to properly train medical employees or to ensure adequate staffing of medical personnel, which violated Plaintiff's Eighth Amendment rights. Plaintiff also claims that Defendants Washington, Sherry, McKee, Unknown Party #14, Rapelje, Woods, Witty, Bowers, Corizon Health, Sheldon, Kernstein, Curley, and Unknown Party #1 failed to supervise and/or train corrections employees, which resulted in a violation of Plaintiff's rights. Plaintiff states that since the time of his illness, the staffing problem has been corrected and third shift health care personnel have been added to all prisons.

         Plaintiff claims that Defendants Parkinson, Haapala[1], Damron, and Covert altered Plaintiff's medical records in an effort to prevent Plaintiff from supporting his legal claims. Plaintiff states that he made Defendant Woods aware of Plaintiff's request for records via a letter. Plaintiff states that Defendants Haapala, McPherson, Ball, Jenkins, Unknown Party #15 Health Information Compliance Coordinator, Rogers, Damron, Covert, Anderson, Ander Jack, and Bonefeld conspired to commit fraud when they altered Plaintiff's medical records and/or interfered with his grievance remedies. Plaintiff also claims that Defendant Lamb lied about being given an extension to answer the grievance.

         On January 21, 2016, Defendant Bonefeld denied Plaintiff's request to treat him for back pain, stating that he was only going to see Plaintiff for his gallbladder problem, and that since Plaintiff was not having gallbladder issues, he should leave health care. Defendant Bonefeld falsely charted that Plaintiff had injured his back “while bending over.” Plaintiff asserts that he was actually injured when he was transported to the hospital in a small squad car.

         On May 23, 2016, and June 8, 2016, Plaintiff wrote grievances on Defendant Parkinson for alteration and/or destruction of medical records. Defendant Parkinson retaliated by denying Plaintiff's requests for records. Plaintiff specifically states that he has been seeking copies of medical kites requesting emergency treatment between November 19, 2015, and November 22, 2015, as well as kites submitted between November 26, 2015, and December 21, 2015, which complained of back pain, psychological trauma, nausea, and fever. Defendant Parkinson refused to provide Plaintiff with these documents and told him that there were not any “CHJ-549” kites in his record between November 19, 2015, and December 22, 2015. Plaintiff claims that between July 26, 2016, and August 3, 2016, Defendant Parkinson told him that she could not give him records because she feared losing her job. She then gave Plaintiff some altered records from Defendants Damron, Kinny, and Covert, and told Plaintiff not to ask for records again because these were the only records she had.

         The Court notes that Plaintiff has filed two motions to supplement his complaint (ECF Nos. 32 and 34), in which he seeks to add new Defendants and claims. The Court will grant Plaintiff's motions and add Defendants Corrections Officers Recla, Cryderman, McDowell, Bury, Mackenzie, Goodell, MacMasters, and Vollick, as well as Defendants Regional Medical Officer Keith Papendik, Nurse Practitioner Penny Rogers, Law Librarian Gina Kemp, and Unknown Parties prison officials.

         In Plaintiff's proposed supplemental pleadings, Plaintiff alleges that while he was confined at URF and at the Kinross Correctional Facility (KCF), he filed numerous grievances, which he pursued through step III. The grievances demonstrated that Defendants Papendik, Borgerding, LaPlaunt, and others were aware of the misconduct of prison and health care employees. In addition, Defendants Papendik and Borgerding began to retaliate against Plaintiff by directing Corizon Health and health care officials to provide less effective care to Plaintiff. Specifically, Plaintiff points to care he received from Defendant Canlas on October 30, 2015, and December 17, 2015, Defendant Covert on December 16, 2015, and Defendant Bonefeld on January 21, 2016. Plaintiff claims that health care officials refused to approve Dr. Stallman's request for blood work and antibiotics when Plaintiff was suffering painful, swollen lymph nodes. Plaintiff claims that Defendant Borgerding and Nurse Practitioner Weist, who is not named as a defendant, switched his prescription from Prednisone to Methyl-Prednisone. When Plaintiff complained, Defendant Rogers stated that it had been changed by Defendant Bonefeld's boss, but that she would reinstate Plaintiff's prescription. Plaintiff attempted to pay for a copy of his medical records with regard to that change, but his request was refused by Defendant Parkinson.

         On May 24, 2016, Plaintiff was scheduled for an unnecessary appointment with Defendant Rogers by an Unknown Party. When Plaintiff arrived, Defendant Rogers asked why Plaintiff was there and Plaintiff responded that he did not know. Defendant Rogers then said that Plaintiff's EMG[2] was finally approved and that it would be soon. Defendant Rogers asked ...


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