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Griffin v. Malatinsky

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

May 29, 2018

NEVIN GRIFFIN, Plaintiff,
v.
WILLIAM MALATINSKY, MD, and AURELIO ROSARIO, Defendants.

          Judge Mark A. Goldsmith

          REPORT AND RECOMMENDATION TO GRANT DEFENDANTS' MOTION TO DISMISS OR, IN THE ALTERNATIVE MOTION FOR SUMMARY JUDGMENT (DE 21) AND ORDER DENYING AS MOOT DEFENDANTS' MOTION FOR EXTENSION OF TIME TO FILE AN ANSWER (DE 18)

          ANTHONY P. PATTI UNITED STATES MAGISTRATE JUDGE

         I. RECOMMENDATION:

         The Court should grant Defendants' motion to dismiss or, in the alternative, motion for summary judgment. (DE 21.) In addition, Defendants' motion to extend the time to answer (DE 18) is denied as moot.

         II. REPORT

         A. Background

         Plaintiff, Nevin Griffin, is an inmate currently incarcerated at the U.S. Penitentiary in Terre Haute, Indiana (USP Terre Haute) who is proceeding in forma pauperis. Plaintiff brings this Bivens action against Defendants William Malatinsky, M.D. and Aurelio Rosario, alleging that they were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. Dr. Malatinsky was the clinical director at FCI Milan during the times relevant to this complaint, and Mr. Rosario was employed at FCI Milan as a Mid-Level Practitioner (MLP), which Defendants explain is analogous to a physician assistant.

         According to Plaintiff's complaint, prior to being incarcerated, he was suffering from a pulmonary embolism and acute recurrent thromboembolic disease and was taking a prescription blood thinner, Warfarin, among other medications, since “at least” December 4, 2012. (DE 1, ¶ 5.) He continued to receive Warfarin after his incarceration at FCI Milan starting on November 22, 2013, until December 2013, when Dr. Malatinsky discontinued the prescription. (Id.) According to Plaintiff's medical records, he reported to Dr. Malatinsky on December 3, 2013 that he “was suppose[d] to take Coumadin for 3-6 months” and “[h]e is waiting for someone to stop it.” (DE 21-3 at 12.) On December 4, 2013, Dr. Malatinsky discontinued Plaintiff's Coumadin (Warfarin) prescription because he had been on it for 12 months, and the Federal Bureau of Prisons (BOP) Clinical Practice Guideline, Anticoagulation Protocol, called for discontinuing the medication after three months for a patient with a history of pulmonary embolism. (DE 21-3 at 11; DE 21-4, ¶ 6; DE 21-5.)

         Plaintiff alleges, contrary to his medical records, that he objected to discontinuing the medication, asserting that medical specialists had warned him not to discontinue the drug without tests, and that Dr. Malatinsky stated “that he did not care what the specialists had said, and ‘To Hell with Them, ' he was discontinuing the Warfarin.” (DE 1, ¶ 5.) Plaintiff contends that Dr. Malatinsky stated that that Warfarin was “too expensive” and when Plaintiff continued to protest, he ordered Plaintiff to leave his office. (Id.) Plaintiff's medical records show that he continued to be evaluated and treated by various physicians, including Dr. Malatinsky, and that he did not report any issues related to his pulmonary embolism or other complications regarding discontinuance of Warfarin. (DE 21-3 at 1-10; DE 21-6 at 49-50.)

         Plaintiff contends that approximately 15 months later, on March 24, 2015, upon awaking in his cell, he began to suffer from severe chest pain with shortness of breath, sweating and other “associated symptoms.” (DE 1, ¶ 6.) He was taken to the FCI Milan medical department where he was examined by Rosario, who then ordered that Plaintiff be returned to his cell because he could discern nothing wrong with him. (Id.) Plaintiff asserts that he collapsed after returning to his cell and was returned to the medical department, examined again by Rosario, and then Dr. Wilson directed that Plaintiff be taken to a hospital immediately. (Id. ¶ 7.) Plaintiff asserts that he was diagnosed with a heart attack, saddle embolism and acute recurrent thromboembolic disease, and admitted for several days of in-patient treatment in the cardiac intensive care unit. (Id. ¶ 8.)

         Plaintiff claims that Defendants exhibited deliberate indifference in violation of the Eighth Amendment to the U.S. Constitution “by ignoring the opinion of medical specialists who issued warnings against discontinuing Warfarin without undergoing prior medical testing” and in “refusing to treat the symptoms exhibited by the plaintiff on March 24, 2015[.]” (DE 1, ¶¶ 10-11.) Plaintiff asserts that he is now permanently disabled from returning to his “normal occupation, ” that his lifespan has been shortened, and that he is now required to take medication “for the remainder of his life due to suffering the saddle embolism, ” all because Dr. Malatinsky discontinued his prescription for Warfarin. (Id. ¶¶ 9, 12.) He seeks an award of $25 million in compensatory damages, as well as punitive damages and “any and other relief to which he may appear entitled, including costs, and interest.” (Id. ¶¶ 13-15.)

         B. Defendants' Motion to Dismiss or, in the Alternative, Motion for Summary Judgment

         On January 12, 2018, Defendants filed a motion to dismiss or, in the alternative, motion for summary judgment, arguing that Plaintiff failed to exhaust his administrative remedies for any claims against Defendant Rosario. Defendants further argue that Plaintiff's allegations that Dr. Malatinsky discontinued Warfarin and that Rosario failed to identify symptoms of a saddle embolism and heart attack do not satisfy the subjective component of an Eighth Amendment deliberate indifference claim. Finally, Defendants contend that Plaintiff's Bivens claims fail because Defendants are entitled to qualified immunity. (DE 21.)

         On February 26, 2018, Plaintiff filed a response in opposition to Defendants' motion, supported by his declaration. (DE 25.) Plaintiff's response brief primarily cites to or quotes case law regarding Eighth Amendment deliberate indifference claims, but fails to apply that law to the facts of this case or otherwise substantively address the grounds for the pending motion. He generally asserts that Defendants' motion is premature “at this stage of the proceedings, ” that Defendants “failed to provide [him] with the patent [sic] care to which the situation and facts demanded” and “[t]here was no room for disagreement as to the proper course of treatment amongst physicians, ” and that the complaint “adequately alleges that the defendants violated known constitutional rights of the plaintiff[.]” He further argues that exhaustion of administration is excused as to his claims against Rosario because Defendants “and/or the staff at the prison” interfered with his ability to file a grievance against Rosario.

         Defendants filed a reply brief in support of their motion on March 12, 2013. (DE 26.) Defendants argue that Plaintiff's claims against Rosario should be dismissed because he has not exhausted his administrative remedies as to those claims, and he has failed to show that the grievance process was unavailable to him. Defendants also reassert their arguments that Plaintiff's deliberate indifference allegations fail to rise to an Eighth Amendment violation because he acknowledges he received medical treatment from both defendants, and that both defendants are entitled to qualified immunity.

         C. Standards for Dispositive Motions

         Defendants bring this motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), or, in the alternative, motion for summary judgment pursuant to Fed.R.Civ.P. 56.

         1. Motions to Dismiss (Fed. R. Civ. P. 12)

         When deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must “construe the complaint in the light most favorable to plaintiff and accept all allegations as true.” Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation omitted); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (concluding that a plausible claim need not contain “detailed factual allegations, ” but it must contain more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action”). Facial plausibility is established “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility of an inference depends on a host of considerations, including common sense and the strength of competing explanations for the defendant's conduct.” 16630 Southfield Ltd., P'Ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 503 (6th Cir. 2013).

         2. Motions for Summary Judgment (Fed. R. Civ. P. 56)

         Under Federal Rule of Civil Procedure 56, “[t]he 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). A fact is material if it might affect the outcome of the case under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court “views the evidence, all facts, and any inferences that may be drawn from the facts in the light most favorable to the nonmoving party.” Pure Tech Sys., Inc. v. Mt. Hawley Ins. Co., 95 Fed.Appx. 132, 135 (6th Cir. 2004) (internal citations omitted).

         “The moving party has the initial burden of proving that no genuine issue of material fact exists . . . .” Stansberry v. Air Wis. Airlines Corp., 651 F.3d 482, 486 (6th Cir. 2011) (internal quotations omitted); cf. Fed.R.Civ.P. 56 (e)(2) (providing that if a party “fails to properly address another party's assertion of fact, ” then the court may “consider the fact undisputed for the purposes of the motion.”). “Once the moving party satisfies its burden, ‘the burden shifts to the nonmoving party to set forth specific facts showing a triable issue.'” Wrench LLCv. Taco Bell Corp., 256 F.3d 446, 453 (6th Cir. 2001) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). The nonmoving party 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); see also Metro. Gov't of Nashville & Davidson Cty., 432 Fed.Appx. 435, 441 (6th Cir. 2011) (“The nonmovant must, however, do more than ...


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