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Rose v. Damron

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

February 26, 2019

WILLIE ROSE #235893, Plaintiff,
v.
JOSEPH DAMRON, et al., Defendants.

          HON. GORDON J. QUIST, JUDGE

          REPORT AND RECOMMENDATION

          TIMOTHY P. GREELEY, UNITED STATES MAGISTRATE JUDGE

         This is a civil rights action brought by state prisoner Willie Rose pursuant to 42 U.S.C. § 1983. Plaintiff asserts First, Fourth, and Eighth Amendment claims against Defendants Bienvenido Canlas, Danielle Paquette, Penny Rogers, Gerald Covert, Joseph Damron, Rebecca Freytag, Elizabeth Kinney, and Michael McDowell. Defendants Canlas, Paquette, and Rogers (the “Corizon Defendants”) filed a motion for summary judgment. (ECF No. 291.) Plaintiff filed a response. (ECF No. 319.) Defendants Covert, Damron, Freytag, Kinney, and McDowell (the “MDOC Defendants”) filed a separate motion for summary judgment and assert that they are entitled to qualified immunity. (ECF No. 361.) Plaintiff filed a response. (ECF No. 368.) This matter is ready for decision.

         The claims in this case arise from a series of events that occurred at the Chippewa Correctional Facility (URF) and the Kinross Correctional Facility (KCF). On November 20, 2015, Plaintiff began to feel noxious and had pain in his stomach. At about 8:00 a.m. on November 22, 2015, Plaintiff was examined by Defendant Damron, RN. Plaintiff reported that he vomited several times over the past couple days. Plaintiff also claims that he told Defendant Damron that he had a family history of gallbladder problems. Defendant Damron checked Plaintiff's vitals and noted that Plaintiff's abdomen was a little tender, but no masses were found. Following the examination, Defendant Damron gave Plaintiff over the counter medication including antacid tabs, Tylenol, and Mylanta. Defendant Damron also instructed Plaintiff to rest, avoid eating spicy food, drink water, and notify healthcare if his symptoms increased.

         At about 2:15 p.m. on the same date, Plaintiff again requested medical care because his symptoms were getting worse. According to Plaintiff, Defendant Damron refused to see him in person for a second time. Instead, Defendant Damron spoke to Plaintiff by phone. During this phone conversation, Plaintiff explained that his condition had worsened. Defendant Damron told Plaintiff that he was going home soon but that he would leave a note for the next nurse to follow up with Plaintiff.

         Over the next several hours, Plaintiff's condition continued to worsen. He states that he lost consciousness and fell out his bunk, injuring his back. At about 11:00 p.m., Plaintiff was returned to health care by wheelchair and examined by Defendant Kinney, RN. After taking Plaintiff's vitals, Defendant Kinney called Defendant Paquette, NP. Defendant Paquette ordered Plaintiff to be transferred to War Memorial Hospital by security transport for further evaluation and treatment. Plaintiff was then placed back in a wheelchair and left alone for twenty to thirty minutes before the security transport arrived. Plaintiff was subsequently transferred to the hospital by two untrained medical professionals.

         When Plaintiff arrived at War Memorial Hospital, he was diagnosed with having acute cholecystitis. The doctor advised Plaintiff that he would have surgery as soon as his white blood cell count came down. On November 24, 2015, Plaintiff had a successful laparoscopic cholecystectomy to remove his gallbladder. After the surgery, the doctor told Plaintiff that his gallbladder had been gangrenous and that the infection had spread to his liver. Plaintiff was also prescribed Cipro and Flagyl. In addition, while at the hospital, Plaintiff had an x-ray on his back because he continued to complain of pain from falling on November 22, 2015. The results showed that Plaintiff had mild levoscoliosis but no fractures or any other abnormalities. Plaintiff returned to URF on November 26, 2015.

         On November 30, 2015, Defendant Canlas saw Plaintiff for his post-op visit. At this appointment, Plaintiff again complained of pain in his lower back. After reviewing Plaintiff's file, Defendant Canlas told Plaintiff that he did not have any breaks or fractures in his back. Defendant Canlas suggested that Plaintiff should lose some weight. Defendant Canlas also told Plaintiff that if he wanted to be seen for his back, he should kite to set up an appointment. Plaintiff sent a kite later that day. On December 2, 2015, Defendant Damron examined Plaintiff for his back pain. Prior to this appointment, Plaintiff had a bottom bunk and was provided Tylenol for pain management. Following a consult with Defendant Canlas, Defendant Damron ordered Phenergan for nausea, a bottom bunk detail for two weeks, and Tylenol. Defendant Damron also gave Plaintiff instructions for several stretching exercises that could help reduce his back pain. Plaintiff continued to complain of back pain and was seen by a medical provider on December 7, 2015, and December 16, 2015. On December 17, 2015, Defendant Canlas saw Plaintiff again for his back pain. Defendant Canlas again gave Plaintiff Tylenol and extended his temporary bottom bunk detail. Defendant Canlas also instructed Plaintiff to avoid lifting weights, yard activity, and back bending.

         On December 1, 2015, Plaintiff asked Defendant Freytag for the names of all individuals who were involved with Plaintiff's treatment on November 22, 2015. Defendant Freytag refused to provide any names. Plaintiff eventually filed a grievance against Defendant Freytag for her failure to provide him with the names. On December 16, 2015, Plaintiff was seen by Defendant Covert, who told Plaintiff that he was causing problems for good people. Plaintiff said he was not there to talk about the grievance, but only to be treated. Plaintiff also told Defendant Covert that according to Defendant Canlas, he should not be charged a co-pay. Defendant Covert told Plaintiff that there was nothing wrong with him, and that he was going to be charged a co-pay every time he visited health services. Defendant Covert then ripped up some papers from Plaintiff's medical chart and made him fill out a new kite. Plaintiff claims that Defendant Covert's treatment of Plaintiff was motivated by a desire to retaliate against him for writing the December 2, 2015, grievance and insinuated that Plaintiff was too comfortable at URF. Shortly thereafter, Defendant Freytag stated that Defendants Covert and Damron had told her that Plaintiff was trying to get them in trouble and that it was not going to work. Less than a week later, Plaintiff was transferred to KCF, which caused the loss of Plaintiff's property and made him miss a court deadline. Plaintiff claims that this transfer was motivated by a desire to retaliate against Plaintiff for engaging in protected conduct.

         On May 24, 2016, Plaintiff visited health care and was seen by Defendant Rogers, NP. Plaintiff states that Defendant Rogers told him that his request for an EMG was finally approved. Defendant Rogers asked Plaintiff if he was feeling any serious pain, and Plaintiff responded that he was not because the recently prescribed Prednisone was effective. As Plaintiff was leaving, however, Defendant Rogers checked her computer and told Plaintiff to wait. Defendant Rogers then told Plaintiff that she needed to examine him to set up an MRI. Defendant Rogers proceeded to poke Plaintiff with a paper clip in the toes, feet, and legs. When Plaintiff said that he could feel the poking, Defendant Rogers smiled and said, “No, you didn't.” Defendant Rogers subsequently asked Plaintiff if he had any incontinence and, when Plaintiff said that he did not, she stated, “Yes, you do.” Defendant Rogers then told Plaintiff that she needed to do a rectal exam on Plaintiff. Plaintiff refused and asked Defendant Rogers why she was doing this. Defendant Rogers replied, “You're writing all of these complaints and trying to hold us accountable for your back pain so I need to perform this rectum exam on you.” Plaintiff again refused the exam, thus, Defendant Rogers called Defendant McDowell into the exam room. Defendant McDowell told Plaintiff that he had to comply with the exam or he would be sent to segregation until he complied. Defendant McDowell also said that everyone was sick of Plaintiff's “crap” and he could write as many grievances as he wanted. Plaintiff finally complied, and Defendant Rogers conducted a rectal exam on Plaintiff.

         Summary judgment is appropriate only if the moving party establishes that there is no genuine issue of material fact for trial and that he is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If the movant carries the burden of showing there is an absence of evidence to support a claim or defense, then the party opposing the motion must demonstrate by affidavits, depositions, answers to interrogatories, and admissions on file, that there is a genuine issue of material fact for trial. Id. at 324-25. The nonmoving party cannot rest on its pleadings but must present “specific facts showing that there is a genuine issue for trial.” Id. at 324 (quoting Fed.R.Civ.P. 56(e)). The evidence must be viewed in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). Thus, any direct evidence offered by the plaintiff in response to a summary judgment motion must be accepted as true. Muhammad v. Close, 379 F.3d 413, 416 (6th Cir. 2004) (citing Adams v. Metiva, 31 F.3d 375, 382 (6th Cir. 1994)). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson, 477 U.S. at 247-48. Ultimately, the court must determine whether there is sufficient “evidence on which the jury could reasonably find for the plaintiff.” Id. at 252. See also Leahy v. Trans Jones, Inc., 996 F.2d 136, 139 (6th Cir. 1993) (single affidavit, in presence of other evidence to the contrary, failed to present genuine issue of fact); cf. Moore, Owen, Thomas & Co. v. Coffey, 992 F.2d 1439, 1448 (6th Cir. 1993) (single affidavit concerning state of mind created factual issue).

         The MDOC Defendants assert that they are entitled to qualified immunity. Government officials, performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Dietrich v. Burrows, 167 F.3d 1007, 1012 (6th Cir. 1999); Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997); Noble v. Schmitt, 87 F.3d 157, 160 (6th Cir. 1996); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). An “objective reasonableness” test is used to determine whether the official could reasonably have believed his conduct was lawful. Dietrich, 167 F.3d at 1012; Anderson v. Creighton, 483 U.S. 635, 641 (1987). “Qualified immunity balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). In making a qualified immunity determination, the court must decide whether the facts as alleged or shown make out a constitutional violation or whether the right that was allegedly violated was a clearly established right at the time of the alleged misconduct. Id. at 232. If the court can conclude that either no constitutional violation occurred or that the right was not clearly established, qualified immunity is warranted. The court may consider either approach without regard to sequence. Id.

         Plaintiff first asserts several Eighth Amendment claims stemming from the medical care he received at URF. The Eighth Amendment obligates prison authorities to provide medical care to incarcerated individuals, as a failure to provide such care would be inconsistent with contemporary standards of decency. Estelle v. Gamble, 429 U.S. 102, 103-04 (1976). A prisoner's Eighth Amendment rights are violated when a prison official is deliberately indifferent to the serious medical needs of a prisoner. Id. at 104-05; Comstock v. McCrary, 273 F.3d 693, 702 (6th Cir. 2001).

         A claim for the deprivation of adequate medical care has an objective and a subjective component. Farmer v. Brennan, 511 U.S. 825, 834 (1994). To satisfy the objective component, the plaintiff must allege that the medical need at issue is sufficiently serious. Id. In other words, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm. Id. The objective component of the adequate medical care test is satisfied “[w]here the seriousness of a prisoner's need[ ] for medical care is obvious even to a lay person.” Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 899 (6th Cir. 2004). The subjective component requires an inmate to show that prison officials have “a sufficiently culpable state of mind in denying medical care.” Brown v. Bargery, 207 F.3d 863, 867 (6th Cir. 2000) (citing Farmer, 511 U.S. at 834). Deliberate indifference “entails something more than mere negligence, ” Farmer, 511 U.S. at 835, but can be “satisfied by something less than acts or omissions for the very ...


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