United States District Court, E.D. Michigan, Northern Division
Patricia T. Morris Magistrate Judge.
OVERRULING OBJECTIONS, ADOPTING REPORT AND RECOMMENDATION,
GRANTING MOTION TO DISMISS, DENYING PLAINTIFF'S MOTION
FOR EMERGENCY INJUNCTIVE RELIEF WITHOUT PREJUDICE, DENYING
PLAINTIFF'S MOTION FOR PARTAL SUMMARY JUDGMENT WITHOUT
PREJUDICE, AND DISMISSING COMPLAINT
L. LUDINGTON United States District Judge.
25, 2017, Plaintiff James Maben, a prisoner currently
incarcerated at the Michigan Department of Corrections Thumb
Correctional Facility, filed a complaint against Corizon
Health Care and several of Corizon's employees which have
been responsible for Maben's healthcare. ECF No. 1. In
the complaint, Maben alleges that the Defendants have
violated his constitutional rights by providing inadequate
care for a plantar wart on his foot. He also advances a state
medical malpractice claim which he alternatively describes as
a negligence claim. On June 19, 2017, all pretrial matters
were referred to Magistrate Judge Anthony P. Patti. ECF No.
8. On July 24, 2017, Maben filed an emergency motion for
injunctive relief. ECF No. 21. In that motion, he seeks an
order prohibiting Defendants from harassing him, interfering
with his access to the law library, and interrogating him
regarding the ongoing litigation by conducting medical
examinations. On August 12, 2017, Defendants filed a motion
to dismiss. ECF No. 28. Several weeks later, Maben filed a
motion for partial summary judgment on his medical
malpractice and negligence claims. ECF No. 34.
December 18, 2017, Judge Patti issued a report recommending
that Defendants' motion to dismiss be granted,
Plaintiff's motions be denied without prejudice, and the
complaint dismissed. ECF No. 46. On January 8, 2018, Maben
filed objections to that report and recommendation. ECF No.
49. For the following reasons, those objections will be
overruled, the Defendants' motion to dismiss will be
granted, Plaintiff's motions will be denied without
prejudice, and the complaint will be dismissed.
Patti has summarized the factual allegations in Maben's
complaint. See Rep. & Rec. at 5-7, ECF No. 46.
For clarity, a brief summary will be provided here. Maben
alleges that he developed a plantar wart prior to
incarceration. Compl. at 1, ECF No, 1. He received various
treatments for the plantar wart prior to being transferred to
the Macomb Regional Facility (“MRF”) in 2014.
Upon admittance to MRF, Maben was examined by Defendant Raul
Tumada. Maben indicated that he needed continued treatment
for his plantar wart, but Tumada indicated that such
treatment would not be provided.
10, 2014, Plaintiff was examined by a nurse who informed him
that medical shoes might help him walk with a normal gait,
but indicated that Defendant Corizon's policy was to not
provide special shoes. Several days later, Maben was examined
by Defendant Badawi Abdellatif. Maben told Dr. Abdellatif
that he was unable to work with a normal gait, which was
causing blisters, open sores, knee pain, and hip pain.
According to Maben, Abdellatif refused to treat him.
24, 2014, Maben indicated to prison personnel that his pain
was worsening (including extreme knee and hip pain) and that
he was having trouble walking normally. On July 3, 2014, he
was examined by Nurse Angela. She gave Maben “moleskin
and a soak basis.” Id. at 2. Defendant Tumada
then examined Maben again, concluding that no further
treatment was necessary.
was then transferred to Central Michigan Correctional
facility. He alleges that his pain became unbearable because
of open sores, blisters, knee and hip pain, and the inability
to walk normally. On May 19, 2015 (approximately ten months
after his last medical examination), Maben informed medical
personnel that he was experiencing extreme pain. He saw a
nurse ten days later who scheduled Maben to see a doctor. On
June 8, 2015, Maben was examined by Defendant Hilda Mbidzo, a
nurse practitioner. Defendant Mbidzo “pared back the
Wart, and provided antibiotic cream.” Id. at
3. Maben asked to be referred to a specialist, but that
request was denied. After that visit, Maben requested
“more acid pads as he had run out.” Id.
In response, Maben was told “that he was supposed to be
treating his ailment himself.” Id. at 3-4.
28, 2015, Defendant Mbidzo “performed further paring
and explained that she was just doing Plaintiff a favor and
that Plaintiff would have to do this on his own in the
future.” Id. at 4. Maben alleges that the
paring required a scalpel and thus was not something he could
do on his own. Approximately one month later, Maben was
examined for an unrelated matter and “showed the blood
blisters, open wounds, on his feet as a result of this lack
of treatment.” Id.
September of 2015, Maben was examined by a nurse. Maben
explained that his feet were bleeding and he was experiencing
extreme pain. He was referred to Dr. Mbidzo, who examined him
four days later. According to Maben, his feet were bleeding.
Mbidzo stated that Maben's feet were in such “bad
condition” that she wanted to take pictures. Maben
requested referral to a specialist and for special shoes.
Mbidzo informed him that shoes would be requested, but that
Corizon's policy was to deny that request. Maben's
feet were photographed several days later. According to
Maben, he was not received any further treatment to
words, Maben “has three years with an almost completely
untreated Plantar Wart. This Wart has caused extreme pain, an
uneven gait, blisters, and knee and hip pain. Plaintiff Has
[sic] made repeated requests to the Defendants for treatment
and specialist (podiatrist) care and the Defendants have been
completely and Deliberately Indifferent to his Serious
Medical Need.” Id. at 5.
to Federal Rule of Civil Procedure 72, a party may object to
and seek review of a magistrate judge's report and
recommendation. See Fed. R. Civ. P. 72(b)(2).
Objections must be stated with specificity. Thomas v.
Arn, 474 U.S. 140, 151 (1985) (citation omitted). If
objections are made, “[t]he district judge must
determine de novo any part of the magistrate judge's
disposition that has been properly objected to.”
Fed.R.Civ.P. 72(b)(3). De novo review requires at least a
review of the evidence before the magistrate judge; the Court
may not act solely on the basis of a magistrate judge's
report and recommendation. See Hill v. Duriron Co.,
656 F.2d 1208, 1215 (6th Cir. 1981). After reviewing the
evidence, the Court is free to accept, reject, or modify the
findings or recommendations of the magistrate judge. See
Lardie v. Birkett, 221 F.Supp.2d 806, 807 (E.D. Mich.
those objections that are specific are entitled to a de novo
review under the statute. Mira v. Marshall, 806 F.2d
636, 637 (6th Cir. 1986). “The parties have the duty to
pinpoint those portions of the magistrate's report that
the district court must specially consider.”
Id. (internal quotation marks and citation omitted).
A general objection, or one that merely restates the
arguments previously presented, does not sufficiently
identify alleged errors on the part of the magistrate judge.
See VanDiver v. Martin, 304 F.Supp.2d 934, 937 (E.D.
Mich. 2004). An “objection” that does nothing
more than disagree with a magistrate judge's
determination, “without explaining the source of the
error, ” is not considered a valid objection.
Howard v. Sec'y of Health and Human Servs., 932
F.2d 505, 509 (6th Cir. 1991). Without specific objections,
“[t]he functions of the district court are effectively
duplicated as both the magistrate and the district court
perform identical tasks. This duplication of time and effort
wastes judicial resources rather than saving them, and runs
contrary to the purposes of the Magistrate's Act.”
objections were filed twenty-one days after the report and
recommendation was issued. Accordingly, they are untimely and
could be overruled solely on that basis. Thomas v.
Arn, 474 U.S. at 151. Nevertheless, the Court's
preference is to adjudicate matters on their merits and not
on procedural technicalities. For that reason, Maben's
objections will be addressed, briefly, on the merits.
has filed twenty-one objections. Broadly speaking, they can
be placed in several categories. In several of Maben's
objections, he argues that the magistrate judge
mischaracterized the factual allegations in his complaint. In
others, he argues that Judge Patti should have concluded that
the plantar wart was a serious medical issue. Maben also
objects to Judge Patti's conclusion that he did not
satisfy the subjective component of the deliberate
indifference standard. He further challenges Judge
Patti's recommendation that Corizon be dismissed.
Finally, Maben argues that he has stated a valid state
medical malpractice claim. The objections will be addressed,
by type, in the same order.
first objection, Maben argues that Judge Patti should not
have referenced the sentence he is currently serving. The
fact that Maben is incarcerated, however, is relevant because
it is the reason he was treated by Defendant Corizon and the
individual Defendants. The fact that he was being held in a
state institution and subject to healthcare by a government
contractor is also a predicate basis for his constitutional
second objection, Maben argues that Judge Patti did not
accept as true all facts alleged in his complaint. He does
not identify any specific examples in this objection.
Maben's eleventh and twelfth objections identify specific
instances where he believes that Judge Patti improperly
discounted his allegations. In objection eleven, Maben faults
Judge Patti for stating that Maben “alleged” that
Defendant Abdellatiff refused all treatment. Similarly, in
the twelfth objection, Maben argues that Judge Patti
improperly discounted his allegations that Defendant
Abedellatiff told him to shave the wart himself. Despite
Judge Patti's indication that these factual statements
were “claimed” and “alleged” by
Maben, there is no reason to believe that Judge Patti
improperly discounted them. Regardless, the Court will
conduct a de novo review of all of Maben's objections
and, in doing so, will take care to accept as true all facts
fifth objection, Maben contends that his plantar wart was
diagnosed and treated prior to incarceration, but not
adequately treated during incarceration, and so his
constitutional rights were violated. Those facts were alleged
in the complaint, and Judge Patti referenced them.
See Rep. & Rec. at 5. Those facts will likewise
be considered by the Court in reviewing ...