United States District Court, W.D. Michigan, Northern Division
OPINION AND ORDER
J. QUIST UNITED STATES DISTRICT JUDGE.
a civil rights action brought by state prisoner D'Andre
Alexander under 42 U.S.C. § 1983. Defendants Fillion,
Russo, MacDowell, Chapman, Waske, Bennet, Benoit, Merling,
and Pietrangelo (MDOC Defendants) moved for summary judgment
(ECF No. 115), as did Defendant Millette (ECF No. 106).
Magistrate Judge Timothy Greeley issued a Report and
Recommendation (R & R) recommending that the Court grant
the motions with respect to Alexander's Eighth Amendment
claim related to inadequate medical treatment after January
9, 2014, and deny the motions with respect to all other
claims. (ECF No. 137.) Millette and Alexander filed
objections to the R & R. (ECF No. 143 & 144.)
Federal Rule of Civil Procedure 72(b), a party “may
serve and file specific written objections” to the R
& R, and the Court is to consider any proper objection.
Local Rule 72.3(b) likewise requires that written objections
“shall specifically identify the portions” of the
R & R to which a party objects. Under 28 U.S.C. §
636(b), upon receiving objections to a report and
recommendation, the district judge “shall make a de
novo determination of those portions of the report or
specified proposed findings or recommendations to which
objection is made.” After conducting a de novo review
of the R & R, the parties' objections, and the
pertinent portions of the record, the Court concludes that
the R & R should be adopted in part and denied in part.
makes six objections to the R & R, and the Court will
address them each in turn.
Objective Component of Alexander's Deliberate
makes several arguments that the R & R erred in
concluding that Alexander met the objective element of his
deliberate indifference claim. First, Millette argues that
Napier v. Madison County, 238 F.3d 739 (6th Cir.
2001), applies, not Blackmore v. Kalamazoo County,
390 F.3d 890 (6th Cir. 2004). Napier requires
prisoners to submit “verifying medical evidence”
in certain circumstances. Blackmore summarized this
requirement as follows:
In sum, the “verifying medical evidence”
requirement is relevant to those claims involving minor
maladies or non-obvious complaints of a serious need for
medical care. Napier, which was relied upon by the
district court, falls within this branch of decisions. In a
word, Napier does not apply to medical care claims
where facts show an obvious need for medical care that laymen
would readily discern as requiring prompt medical attention
by competent health care providers. Napier applies
where the plaintiff's “deliberate
indifference” claim is based on the prison's
failure to treat a condition adequately, or where the
prisoner's affliction is seemingly minor or non-obvious.
In such circumstances, medical proof is necessary to assess
whether the delay caused a serious medical injury.
Blackmore, 390 F.3d at 898 (citing Napier,
238 F.3d at 742).
relies primarily upon the language, “Napier
applies where the plaintiff's ‘deliberate
indifference' claim is based on the prison's failure
to treat a condition adequately.” Millette argues that
because Alexander received medical treatment for the bite
injury on his hand the same day he was injured, Alexander is
challenging the prison's failure to treat a condition
adequately. Therefore, he argues, Napier applies and
Alexander's failure to introduce medical proof dooms his
conditions from the bite injury are a separate condition from
Alexander's broken hand. Treatment only for the former
does not automatically grant Millette a shield for the
latter. Napier “does not apply to medical care
claims where facts show an obvious need for medical care that
laymen would readily discern as requiring prompt medical
attention by competent health care providers.”
Id. at 898; see also Williams v. Michigan
Dep't of Corr., No. 2:16-CV-72, 2018 WL 1150025, at
*2 (W.D. Mich. Mar. 5, 2018). The R & R concluded that
Alexander's broken hand would likely be sufficiently
obvious to a layperson. Millette has not shown this to be
incorrect and, therefore, Alexander need not have provided
medical proof as required by Napier.
next cites Burgess v. Fischer, 735 F.3d 462 (6th
Cir. 2013), to argue that Alexander's after-the-fact
diagnosis of a fracture based upon an x-ray does not satisfy
the objective component of deliberate indifference for events
that occurred prior to the x-ray. Burgess is
distinguishable because the plaintiff's injuries were
latent medical injuries discovered only by a CT scan,
contrasted to Alexander's injuries, which were likely
sufficiently obvious for a layperson to recognize the need
for treatment. Id. at 476-77.
argues that the R & R's reliance on Hubbard v.
Gross, 199 Fed.Appx. 433 (6th Cir. 2006), is incorrect
because the facts are distinguishable from Alexander's.
Although the facts are different, the applicable legal
standard is not, and Millette has not shown that the R &
R's use of Hubbard was in error.
runs through the relevant timeline of events regarding his
treatment of Alexander's hands, to show that there was no
objective evidence that Alexander had a fracture until the
x-ray report of Alexander's hand. However, Alexander
alleged that his hand was bruised, swollen, and made a
bone-clicking noise-as noted by the R & R. Viewing the
facts in a light most favorable to the non-movant,
i.e., Alexander, Millette has not shown that the R
& R was incorrect in concluding that the facts were so
obvious that even a layperson would recognize the need for
attention of a doctor.
Millette's first objection is overruled.
The Subjective Component of Alexander's Deliberate
argues that the R & R's conclusion that Alexander
satisfied the subjective component of his deliberate
indifference claim was incorrect. Millette argues that the
allegations that Millette should have known that Alexander
had a broken hand “might demonstrate
negligence”-which is insufficient to state a claim or
to satisfy the subjective prong of the test.
Deliberate indifference “entails something more than
mere negligence, ” but can be “satisfied by
something less than acts or omissions for the very purpose of
causing harm or with knowledge that harm will result.”
Under Farmer, “the official must both be aware
of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also
draw the inference.”
Blackmore, 390 F.3d at 895-96 (quoting Farmer v.
Brennan, 511 U.S. 825, 835, 837, 114 S.Ct. 1970, 1978-79
(1994)). In Blackmore, the plaintiff complained of
stomach pain, vomited, and received minimal treatment for
over fifty hours. From these circumstances, the court found
that a reasonable jury could conclude that the defendants
were “aware of facts from which the inference could be
drawn that a substantial risk of serious harms exists and the
Defendants ignored that ...