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Nichols v. Unknown Party #1

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

February 27, 2018

UNKNOWN PARTY #1, et al., Defendants.


          RAY KENT, United States Magistrate Judge

         This is a pro se civil rights action brought by a prisoner in the custody of the Michigan Department of Corrections (MDOC). This matter is now before the Court on defendant Dr. Carrel's motion for summary judgment based on plaintiff's failure to exhaust his administrative remedies (ECF No. 10), Dr. Carrel's second motion for summary judgment on the merits (ECF No. 18), and plaintiff's motion to amend the complaint to add Nurse Amber Pinkston (ECF No. 29).[1]

         I. Background

         Plaintiff's complaint involves medical treatment provided to him at the Carson City Correctional Facility (“DRF”) by David Carrel, D.O., and two unknown nurses referred to as “Jane Doe's”. Plaintiff sets forth the following allegations. On April 3, 2015, plaintiff was “feeling really bad.” Compl. (ECF No. 1, PageID.3). He was examined by a nurse (RN) who told plaintiff he was suffering from the flu. When plaintiff tried to explain that he had something more serious, the nurse stated that “prisoners always think they are suffering from something more serious than they have.” Id. Plaintiff went back to his housing unit where he stated he had chills, was feverish, and sweating profusely. Id.

         On April 4, 2015, plaintiff stated that he was getting worse, his throat was almost closed, and he had a high temperature. Id. A nurse examined plaintiff and stated that he was suffering from the flu, gave him some Tylenol, and said the doctor did not have time to see prisoners with the flu. Id.

         On April 5, 2015 plaintiff stated that he was “gasping for air” with his throat “three times its normal size.” Id. He was barely able to get out of bed. Id. Corrections Officer Kalnins called Health Care and after a “brief argument” with the RN, plaintiff was told to go to Health Care. Id. Plaintiff passed out in the hallway. Id. He awoke on a gurney and told the nurse he was dying. Id. The nurse called Dr. Carrel, who told the nurse that plaintiff was suffering from the flu and sent him back to his unit. Id. at PageID.4.

         On April 6, 2015, plaintiff was “in and out of consciousness.” Id. He was taken to Health Care in a wheelchair. The Nurse Practitioner, Victoria Merren, looked at plaintiff's vitals and ordered that he be sent to the local hospital emergency room. Id. Later, he was air-lifted to the University of Michigan Hospital, where he was diagnosed with necrotizing fasciitis, a condition which plaintiff identified as “a flesh eating bacteria.” Id. Plaintiff stated that he had six surgeries to remove the bacteria. Id. He was hospitalized for two months, and “had to undergo physical therapy to learn how to walk, talk and eat again.” Id.

         Plaintiff alleged that defendants were deliberately indifferent to his serious medical needs, with the gravamen of his claim as follows:

It was obvious to the RN(s) who initially examined me that I was seriously ill and in need of urgent medical care. But instead of the RN(s) taking my apparent need of medical treatment serious, they simply diagnosed me with having the flu. Even Dr. Carrell should have know[n] that I was seriously ill and need medical attention. That I was not just suffering from the flu when my condition continued to deteriorate. Losing consciousness is not a normal flu symptom.

Id. Plaintiff seeks compensatory and punitive damages. PageID.5.

         II. Defendant's motions for summary judgment

         A. Legal standard

         Dr. Carrel has filed two motions for summary judgment. The first motion is based on lack of exhaustion, while the second motion is based on the merits of plaintiff's claims. “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Rule 56 further provides that a party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1).

         In Copeland v. Machulis, 57 F.3d 476 (6th Cir. 1995), the court set forth the parties' burden of proof in a motion for summary judgment:

The moving party bears the initial burden of establishing an absence of evidence to support the nonmoving party's case. Once the moving party has met its burden of production, the nonmoving party cannot rest on its pleadings, but must present significant probative evidence in support of the complaint to defeat the motion for summary judgment. The mere existence of a scintilla of evidence to support plaintiff's position ...

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