United States District Court, E.D. Michigan, Southern Division
ORDER DENYING MOTION FOR RECONSIDERATION
ROBERT
H. CLELAND, UNITED STATES DISTRICT JUDGE.
Plaintiff
Eugene McCain moves the court to reconsider its July 27, 2017
opinion and order granting summary judgment to Defendants.
Because the motion fails to identify a palpable defect by
which the court was misled that would have led to a different
disposition of the case, see E.D. Mich. LR
7.1(h)(3), the court will deny the motion.
First,
Plaintiff contends that the court erred in holding that
Plaintiff had presented no more than a scintilla of evidence
to show that Defendant Nurse Bishop had actually received and
read the medical screening form. (Dkt. #85 Pg. ID 2172-74.)
In its opinion and order, the court explained that Plaintiff
essentially offered evidence to show only that it was Nurse
Bishop's pattern and practice to collect and review the
forms multiple times during the shift. (Dkt. #81 Pg. ID
2148.) The court explained that simply because pattern and
practice evidence is admissible does not mean that,
standing alone, it is more than a scintilla. (Id. at
Pg. ID 2147-48.) Dr. Stromberg's testimony reinforcing
the existence of the pattern and practice does change the
fact that the existence of the standard practice amounts to
no more than a scintilla of evidence that Nurse Bishop
actually followed that practice here. The court will draw all
reasonable inferences in Plaintiff's favor,
Sagan v. United States, 342 F.3d 493, 497 (6th Cir.
2003), but, as the court's earlier opinion explained, the
chain of inferences required from the mere existence of the
practice is not reasonable.
Plaintiff
next objects that the court did not address Plaintiff's
claim that Defendant Nurses failed to provide adequate care
following Plaintiff's first seizure. (Dkt. #85 Pg. ID
2175-76.) The court inaccurately stated in its opinion and
order that Plaintiff did not challenge the adequacy of care
provided in response to the first seizure. (Dkt. #81 Pg. ID
2145.) Plaintiff's brief in fact argued that “Nurse
Bishop's response to Mr. McCain when he suffered his
first seizure . . . was also grossly substandard . . .”
because “[t]he only thing that Nurse Bishop did was
order that Mr. McCain be observed by deputies every 30
minutes.” (Dkt. #71 Pg. ID 1170.) But Plaintiff's
brief cited to no evidence in the record, relying instead on
vague assertions that Plaintiff's witnesses “all
agree that Nurse Bishop's actions were grossly
substandard.” (Id.)[1]
Although
Plaintiff complains that the court also “did not
address this claim as it pertained to Nurses Schieman and
King[, ]” (Dkt. #85 Pg. ID 2175-76), neither did
Plaintiff's briefing. (Dkt. #71 Pg. ID 1171-72.)
Plaintiff's briefing made no mention of Nurses
Schieman's or King's response to the first seizure.
Moreover, Plaintiff's briefing in this entire section
(Dkt. #71 Pg. ID 1171-72) cited no evidence in the record.
The
court is under no obligation to search the record beyond the
parties' citations. Fed.R.Civ.P. 56(c)(3). Finding no
evidence to support the Plaintiff's contention that the
Defendant nurses “provided grossly substandard care in
response to Mr. McCain's first seizure” (Dkt. #85
Pg. ID 2175), the court has determined that summary judgment
as to Nurses Bishop, Schieman, and King was proper.
Plaintiff
next contends that the court mistakenly faulted him for not
citing evidence in the record in his opposition to summary
judgment. (Dkt. #85 Pg. ID 2177- 79.) He first objects to the
court's conclusion that he cited nothing in the record to
support his assertion that Nurse Bishop knew that a seizure
disorder is a serious condition. (Dkt. #85 Pg. ID 2177.)
Plaintiff points to the “Statement of Underlying
Facts” section of his response to summary judgment
where he cited a portion of Nurse Bishop's deposition; he
claims that in this portion Nurse Bishop admitted that a
seizure disorder is a serious condition. (Dkt. #71 Pg. ID
1149.) Any such “admission” in this section of
Nurse Bishop's testimony, however, is borne out of
Plaintiff's own conclusory statements. Nowhere in this
section of Nurse Bishop's testimony does she use or
accept the term “serious condition.” Plaintiff
also points to the depositions of other witnesses that he
cited in response to the motion for summary judgment-the
court is unclear, however, how statements from other
witnesses amount to an admission from Nurse Bishop that a
seizure disorder is a serious condition.
Citing
the court's opinion (Dkt. #81 Pg. ID 2151), Plaintiff
also objects that the court improperly concluded that he
cited no evidence in the record to suggest that “Nurse
Schieman admitted that a seizure disorder is a serious
medical condition, and that stopping medication right away
can result in the onset of seizures.” (Dkt. #85 Pg. ID
2178.) He contends that the court made the same improper
conclusion as to Nurse King. (Id.) But the court
made no such conclusion in this section of its opinion.
Rather, the court determined that the Plaintiff had pointed
to no evidence that would “contradict [Nurse
Bishop's] statements, echoed by Nurse Schieman and Nurse
King, that she would not have believed there to be a
substantial risk to Plaintiff's health.” (Dkt. #81
Pg. ID 2151.) The court went on to say that “Plaintiff
points to no circumstantial evidence to show that any risk of
harm to Plaintiff would have been obvious to Defendant LPNs
to counter their testimony that they were or would have been
unconcerned.” (Dkt. #81 Pg. ID 2151.) The court finds
that Plaintiff's cited sections in the present motion
(Dkt. #85 Pg. ID 2178-79) still fail to contradict or counter
these statements.
Finally,
Plaintiff contends that the court improperly failed to
analyze testimony and affidavits from four witnesses supplied
by Plaintiff. (Id. at Pg. ID 2179.) But the
Plaintiff fails to articulate how the court should have taken
that material into account, he fails to explain why that
material resulted in the court and parties being misled, and
he fails to state how “correcting the defect will
result in a different disposition of the case.”
See E.D. Mich. LR 7.1(h)(3).
Plaintiff,
in his motion, seems to misunderstand his burden in opposing
a motion for summary judgment. As the court noted in its
opinion and order granting summary judgment, the movant has
the initial burden of showing the absence of a genuine
dispute as to a material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Once the movant meets
that initial burden, “the party opposing the motion
then may not ‘rely on the hope that the trier of fact
will disbelieve the movant's denial of a disputed
fact' but must make an affirmative showing with proper
evidence in order to defeat the motion.” Alexander
v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009)
(quoting Street v. J.C. Bradford & Co., 886 F.2d
1472, 1479 (6th Cir. 1989)). “[T]he opposing party
‘cannot rest solely on the allegations made in [his]
pleadings, ' but must set forth-by pointing to specific
facts-that there is a genuine issue for trial. Everson v.
Leis, 556 F.3d 484, 496 (6th Cir. 2009) (quoting
Skousen v. Brighton High School, 305 F.3d 520, 527
(6th Cir. 2002)). On the initial motions for summary
judgment, Plaintiff did not meet his burden, as the
nonmovant, to demonstrate a genuine issue for trial. He has
similarly not done so now.
The
court finds no “palpable defect by which the Court and
the parties and other persons entitled to be heard on the
motion have been misled” that would “result in a
different disposition of the case” if corrected. E.D.
Mich. LR 7.1(h)(3). Accordingly, Plaintiff's
“Motion for Reconsideration of This Court's July
27, 2017 Opinion and Order Granting Motions for Summary
Judgment” (Dkt. #85) is DENIED.
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Notes:
[1] And regardless of the court's
misstatement, Plaintiff's assertion is belied by what
Defendants have cited in the record. Nurse Bishop's notes
indicate that-in addition to ordering the 30-minute
checks-she evaluated Plaintiff, had him moved to a cell
closer to the officer's station, and ordered his seizure
medication. (Dkt. #63 Pg. ID 483.) Plaintiff's expert
...