United States District Court, W.D. Michigan, Northern Division
GORDON J. QUIST, JUDGE
REPORT AND RECOMMENDATION
TIMOTHY P. GREELEY, UNITED STATES MAGISTRATE JUDGE
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
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.
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.
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.
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.
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.
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.
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.
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).
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.
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.
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 ...