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Morgan v. Johnson

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

February 26, 2019

ROBERT JAMES MORGAN, Plaintiff,
v.
GOERGE JOHNSON, et al., Defendants.

          Hon. Gordon J. Quist, Judge

          REPORT AND RECOMMENDATION

          RAY KENT, UNITED STATES MAGISTRATE JUDGE

         This is 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. 54).

         I. Background

         This 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).[1]

         Plaintiff's 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.

         The 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).

         Finally, defendant Dr. Mindlin executed a waiver of service on May 30, 2017.[2] 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).

         III. The parties' motions for summary judgment

         A. Legal standard

         “The 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).

         In 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 plaintiff.

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 ...


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