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Maben v. Corizon Health Care Provider

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

March 21, 2018

JAMES MABEN, Plaintiff,

          Patricia T. Morris Magistrate Judge.


          THOMAS L. LUDINGTON United States District Judge.

         On May 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.

         On 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.


         Judge 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.

         On June 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.

         On June 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.

         Maben 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.

         On July 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.

         In 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 date.[1]

         In his 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.


         Pursuant 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. 2002).

         Only 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.” Id.


         Maben's 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.

         Maben 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.


         In his 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 claims.

         In his 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 alleged.

         In the 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 ...

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