United States District Court, W.D. Michigan, Southern Division
REPORT AND RECOMMENDATION
KENT, United States Magistrate Judge
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).
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.
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.
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.
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
alleged that defendants were deliberately indifferent to his
serious medical needs, with the gravamen of his claim as
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
Id. Plaintiff seeks compensatory and punitive
damages. Id.at PageID.5.
Defendant's motions for summary judgment
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).
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 ...