United States District Court, W.D. Michigan, Southern Division
Gordon J. Quist, Judge
REPORT AND RECOMMENDATION
KENT, UNITED STATES MAGISTRATE JUDGE
a pro se civil rights action brought by a prisoner
in the custody of the Michigan Department of Corrections
(MDOC). This matter is now before the Court on motions for
summary judgment filed by defendants George Johnson, Andrea
Lindhout and Keith Papendick (ECF No. 47), defendants S.
Aiken and R. Harbaugh (ECF No. 48), and plaintiff (ECF No.
action involves incidents which occurred at the Bellamy Creek
Correctional Facility (IBC). Plaintiff's complaint named
the following defendants: PA George [named as
“Goerge”] Johnson (primary care physician); Sue
Buskirk (housing unit manager); RN S. Aiken; Dr. Keith
Papendick; RN Andrea Lindhout [named as
“Lindout”]; Dr. Lyle Mindlin; RN R. Harbaugh; and
Richard Russell (Manager, Grievance Section Office of Legal
Affairs). Compl. (ECF No. 1, PageID.2-3).
complaint stated the following claim (in his words):
In the beging [sic] days of May 2015 I tore my bicep tendon
and ligaments in an accident. This was confirmed by several
doctors and technicians wich my medical documents state
clearly. Due to lack of treatment, mainly a surgery to repare
damages that will not heal otherwise my arm is in constant
pain, lack of mobility, and little strength. This has
affected everyday duties and caused mental distress. Each
defendant has spoke directly with me or has reviewed my
medicl records. S. Aiken is a nurse that addressed my arm.
Andrea lindout is R.N. that also saw me for injury. George
Johnson is the doctor that saw me for injury. Sue Buskirk
spoke with me about my descrepince with medical service. Lyle
Mindlin was my ultra sound Doctor for arm. Keith Papendick
was my orthopedic doctor for arm. R. Harbaugh is my RN that
reviewed case a Bureau of Health Care Service. Richard
Russell managed legal affairs for my Grievance on Health
Care. None of these people did due diligents or attempted to
Help aide me/due job to the fullest.
Compl. at PageID.4. For his relief, plaintiff asked the Court
to order a procedure to fix his “deformed and useless
arm” and compensation “for pain and suffering,
mental destress, loss of wages, and poor living.”
Id. at PageID.5.
Court dismissed defendants Buskirk and Russell on initial
screening. Opinion (ECF No. 7). The Court construed the rest
of the paragraph as stating a cause of action for deliberate
indifference to a serious medical need in violation of
plaintiff's Eighth Amendment rights and allowed the claim
to proceed against the remaining defendants. Id. The
Court previously denied defendants Harbaugh and Aiken's
motion for summary judgment for lack of exhaustion and
defendants Johnson, Papendick, and Lindhout's motion to
dismiss. See Order (ECF No. 41).
defendant Dr. Mindlin executed a waiver of service on May 30,
2017. He is not represented by counsel and has
filed nothing in this lawsuit. As discussed, infra,
Dr. Mindlin did not treat plaintiff at IBC. Dr. Mindlin was
the radiologist at the MDOC's Duane Waters Hospital
(DWHC) who interpreted plaintiff's left upper arm
ultrasound on May 1, 2015 and identified the
“[a]pparent biceps rupture” treated by
plaintiff's medical providers at IBC. See
Medical Records (MR) (ECF No. 31-1, PageID.183-184).
The parties' motions for summary judgment
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). Rule 56 further provides that a party
asserting that a fact cannot be or is genuinely disputed must
support the assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1).
Copeland v. Machulis, 57 F.3d 476 (6th Cir. 1995),
the court set forth the parties' burden of proof in a
motion for summary judgment:
The moving party bears the initial burden of establishing an
absence of evidence to support the nonmoving party's
case. Once the moving party has met its burden of production,
the nonmoving party cannot rest on its pleadings, but must
present significant probative evidence in support of the
complaint to defeat the motion for summary judgment. The mere
existence of a scintilla of evidence to support
plaintiff's position will be insufficient; there must be
evidence on which the jury could reasonably find for the
Copeland, 57 F.3d at 478-79 (citations omitted).
“In deciding a motion for summary judgment, the court
views the factual evidence and draws all reasonable
inferences in favor of the nonmoving party.” McLean
v. 988011 Ontario Ltd., 224 F.3d 797, 800 (6th Cir.
2000). However, the Court is not bound to blindly adopt a
non-moving party's version of the facts. “When
opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable
jury could believe it, a court should not adopt that ...