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Alexander v. Fillion

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

June 27, 2018

D'ANDRE ALEXANDER #731077, Plaintiff,
v.
PENNY FILLION, et al., Defendants.

          OPINION AND ORDER

          GORDON J. QUIST UNITED STATES DISTRICT JUDGE.

         This is 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.)

         Under 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.

         Millette's Objections

         Millette makes six objections to the R & R, and the Court will address them each in turn.

         1) Objective Component of Alexander's Deliberate Indifference Claim

         Millette 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).

         Millette 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 claim.

         The 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.

         Millette 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.

         Millette 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.

         Millette 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.

         Accordingly, Millette's first objection is overruled.

         2) The Subjective Component of Alexander's Deliberate Indifference Claim

         Millette 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 ...


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