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Cook v. Corizon Health, Inc.

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

April 25, 2019

DANIEL COOK #290601, Plaintiff,
v.
CORIZON Health, Inc., et al., Defendants.

          Hon. Paul L. Maloney U.S. District Judge

          REPORT AND RECOMMENDATION

          MAARTEN VERMAAT U.S. MAGISTRATE JUDGE

         Introduction

         This is a civil rights action brought by state prisoner Daniel Cook pursuant to 42 U.S.C. § 1983. Plaintiff filed his initial complaint on February 28, 2018, and his amended complaint on August 21, 2018. Plaintiff alleges that Defendants Corizon Health, Inc., Nurse Gabriel Gluesing, Nurse Joe Wixtrom, Doctor Keith Papendick, Nurse Richard Harbaugh, Doctor Sylvie Stacy, Doctor George Bonefeld, Doctor Roger Gerlach, Deputy Warden Gary Miniard, Resident Unit Manager Davis, and Warden John Christiansen failed to provide him with appropriate medical care while he was confined at the Marquette Branch Prison (MBP) and the Ionia Correctional Facility (ICF), in violation of the 8th Amendment to the U.S. Constitution, and/or retaliated against him for complaining about this, in violation of the 1st Amendment to U.S. Constitution.[1]

         This Report and Recommendation addresses the following motions:

(1) a motion for summary judgment, filed by Defendants Gluesing, Wixtrom, Harbaugh, Miniard, Davis and Christiansen, asserting that Plaintiff failed to exhaust his available administrative remedies. (ECF No. 66.)
(2) a motion for summary judgment, filed by Defendants Corizon Health, Inc., Papendick, Bonefeld, Stacy and Gerlach, asserting that Plaintiff's claim that Defendants were deliberately indifferent to his serious medical needs fails to establish a genuine issue of material fact, and a related motion, filed by Defendant Gerlach, asserting that Plaintiff failed to exhaust his available administrative remedies. (ECF No. 122.)
(3) Plaintiff's motion for a preliminary injunction. (ECF No. 69.)
(4) Plaintiff's motion for a temporary restraining order and preliminary injunction. (ECF No. 77.)
(5) Plaintiff's motion for a temporary restraining order and preliminary injunction.[2] (ECF No. 98.)

         The undersigned respectfully recommends that all of Defendants' motions for summary judgment be granted. If these recommendations are adopted, all of Plaintiff's claims will be eliminated and his case should be dismissed.[3] If any of Plaintiff's claims remain, then the undersigned respectfully recommends that Plaintiff's motions for TROs and preliminary injunctions be denied.

         Plaintiff's Allegations

         This Court previously summarized Plaintiff's factual allegations in its Opinion dated Sept. 19, 2018. (See ECF No. 28, Opinion, at PageID.429-435).) This summary is repeated, with a few minor modifications, below.

         Plaintiff alleges that, on July 6, 2016, he experienced acid reflux and diarrhea. Nurse Hammonds told Plaintiff that it was the result of a change in food companies. On September 12, 2016, Plaintiff told Defendant Gluesing that he was suffering from bloody vomit, a burning sensation throughout his gastrointestinal tract, a sore throat, sores in his mouth, flatus, weakness, and strong-smelling urine. Plaintiff showed him a deodorant lid full of vomit with blood in it. Defendant Gluesing stated that Plaintiff looked fine and began walking away. Plaintiff then placed a sign in the camera's view stating, “Internal Bleeding, Emergent.” Defendant Gluesing stated, “show me.” Plaintiff then choked up some “white acidy” looking “stuff” that had “drops of blood in it.” Defendant Gluesing told Plaintiff to submit a health care request. Plaintiff asked Defendant Gluesing to do a vital check and to send him to the hospital, but Defendant Gluesing refused, stating that he was not going to pull Plaintiff out on third shift. Plaintiff completed a health care request.

         On September 15, 2016, Nurse Practitioner Falk told Plaintiff that his sedimentation rate (or “sed” rate) was 36 mm/hh as a result of inflammation, but that Plaintiff shouldn't worry because he had seen rates much worse. Falk then told Plaintiff that he had ulcers, but that Protonix would take care of them. Plaintiff had an x-ray on September 20, 2016, which showed constipation and several phleboliths.

         On September 23, 2016, Defendant Wixtrom told Plaintiff that he had “one big ulcer, ” and that there was something wrong with Plaintiff's gall bladder and stomach. However, Defendant Wixtrom did not write this in the medical record. Instead, Defendant Wixtrom recorded that the Protonix was having “good results.”

         On February 15, 2017, an x-ray of Plaintiff's abdomen showed constipation, phleboliths, and early arthritic changes of the hip. On March 22, 2017, an x-ray of Plaintiff's abdomen showed constipation and several phleboliths in Plaintiff's pelvic area. An x-ray taken on April 10, 2017, showed that Plaintiff was suffering from constipation throughout his colon and rectal area.

         Defendant Papendick ordered that Plaintiff be placed on Senna (a laxative) to address his constipation.

         On April 27, 2017, Plaintiff kited healthcare stating that his stools had become watery, but that he was still having pain.

         On May 1, 2017, R.N. Mleiko responded to a call from corrections officers reporting that Plaintiff was in bad shape. Defendant Bonefeld examined Plaintiff and ordered Plaintiff to stop taking the Senna. Defendant Bonefeld then recorded Plaintiff's pain as being in the wrong location and prevented the R.N. from sending Plaintiff to the hospital. Defendant Bonefeld told Plaintiff to stop submitting healthcare requests.

         On May 1, 2017, Plaintiff had midline abdominal pain, and upper right quadrant pain that Defendant Bonefeld did not document. On May 4, 2017, Plaintiff's lab results revealed elevated ALT, AST, YGT, and triglycerides, which indicate hepatobiliary dysfunction. On May 2, 2017, an x-ray showed that Plaintiff continued to have constipation throughout his colon and rectal area. Blood work done on May 4, 2017, showed multiple abnormalities consistent with hepatobiliary dysfunction.

         On May 26, 2017, Nurse Practitioner Falk submitted a request for a CT scan of Plaintiff's abdomen. Falk charted that Plaintiff reported an inability to take Senna because it caused watery stools, and that Plaintiff was experiencing pain in his right and left abdomen, with tingling on his right side. Defendant Papendick denied the requested CT scan and ordered that Plaintiff continue to take Senna.

         On June 6, 2017, Nurse Practitioner Falk submitted a request for an ultrasound, but Defendant Papendick denied the request, stating that there was not a demonstrable medical necessity at the time and that watery stools might be necessary to clear the constipation. On June 27, 2017, after Plaintiff had been taking Senna for an extended period of time, an x-ray showed that Plaintiff was suffering from obstipation, which is a severe form of constipation. Plaintiff claims that his medical record had been falsified on numerous occasions in order to deny him treatment. In particular, Plaintiff states that lab results showing that his sed rate was near 0 were medically impossible, given his arthritis, abscessed tooth, and abnormal liver enzymes.

         On July 30, 2017, Plaintiff submitted a healthcare request stating that his stool was “paste-like” and had blood in it. Plaintiff asked for a CT scan, pain medication, and to see a gastroenterologist. Plaintiff complained of liver pain. On August 1, 2017, Plaintiff complained of blood in his stool to R.N. Kristy. A couple of days later, Plaintiff had a positive test for fecal occult blood. Plaintiff was placed on Medicaid. Plaintiff states that a prisoner is only placed on Medicaid when he is about to go home or when he has a chronic condition. Plaintiff states that he is 12 years from his release date, but that he has not been officially diagnosed by Defendants.

         On September 25, 2017, Plaintiff had a colonoscopy, which did not pinpoint the source of the bleeding. The doctor concluded that based on Plaintiff's symptoms and family history, he should have an EGD test. On September 26, 2017, Plaintiff was ordered to take four Senna per day. On September 27, 2017, Plaintiff told nurse Brenda James that she was supposed to request an EGD. Nurse James responded, “Yeah see if Corizon approves that.” On October 25, 2017, Nurse Practitioner Falk requested an ultrasound on Plaintiff's behalf. This request was denied by Defendant Stacy. On November 7, 2017, an x-ray showed constipation throughout Plaintiff's colon and rectal area.

         On January 8-9, 2018, Nurse Practitioner Falk ordered lab tests to be sent to the hospital as a result of Plaintiff's concerns regarding the reliability of Corizon labs. Plaintiff states that the results show that the majority of his liver enzymes are abnormal and show that Plaintiff suffers from serious hepatobiliary dysfunction. On January 11, 2018, Defendant Wixtrom refused to do a full vital check or to send Plaintiff to the hospital despite the worsening of his symptoms. On January 16, 2018, an x-ray revealed continued constipation.

         On January 28, 2018, Dr. Bohjanen told Plaintiff that his lab results were the result of his lactose intolerance. Plaintiff explained that he no longer had reflux and that milk did not cause him any problems. On January 31, 2018, Defendant Gluesing attempted to send Plaintiff to the hospital, but Dr. Bohjanen refused, stating that Plaintiff was lactose intolerant. On February 2, 2018, Plaintiff's LDH isoenzymes 1 and 5 were abnormally high, but these results were later removed from Plaintiff's record. On February 12, 2018, Nurse Charles Scott deflected Plaintiff's complaints by placing blame on Corizon and the cost of care. Nurse Scott told Plaintiff that his labs did not warrant further examination and told him that a sed rate of 0 was clinically possible for someone with Plaintiff's abnormalities.

         On March 8, 2018, Plaintiff received detailed information regarding the medication Senna, stating:

Senna is not recommended when abdominal pain, nausea, or vomiting or sudden change of bowel habits are present. Long term administration of Senna is not recommended for the treatment of chronic constipation. “Rectal bleeding” or failure to have a bowel movement after Senna use may indicate a serious underlying gastrointestinal condition and warrants discontinuation of therapy and evaluation.

(ECF No. 25, PageID.338, ¶ 42.) Plaintiff immediately stopped taking the Senna and submitted a request to be evaluated for gastrointestinal damage.

         On March 22, 2018, a specialist named Lewis evaluated Plaintiff and told him that if he was not in prison, he would have already had an ultrasound, an EGD, and a CT scan. Lewis then submitted a request for an ultrasound, which was denied by Defendant Papendick, who also ordered that Plaintiff be placed on the maximum dose for Senna. Nursing staff told Plaintiff that several prisoners have been taking Senna for chronic constipation for two years or more.

         On April 30, 2018, an ultrasound was conducted by Christina Arnoldus. In the report, Arnoldus stated that the black box restraints on Plaintiff and the gas in his abdomen were complicating factors in obtaining a clear ultrasound. The ultrasound revealed a small nodule mass that was suggestive of a small gall bladder wall polyp. Plaintiff states that recognized medical experts state that a patient with a gall bladder polyp and persistent biliary symptoms should undergo a cholecystectomy, or removal of the gall bladder. Plaintiff discussed his symptoms and history with Dr. Verbridge, who recommended that Plaintiff see a gastroenterologist if his pain and symptoms persisted. Plaintiff's ALT was nearly double the upper limit of normal.

         On May 1, 2018, Defendant Bonefeld charted that he did a physical examination, but only checked Plaintiff's blood pressure, oxygen level, weight, and temperature. Defendant Bonefeld failed to document that a polyp was located on the wall of Plaintiff's gall bladder. Defendant Bonefeld falsely charted that Plaintiff's LDH levels were normal on April 6, 2018, and then lost the actual test results. Defendant Bonefeld charted “no dx [diagnosis] found” and blamed the elevation in Plaintiff's ALT on his statin medication. On May 3, 2018, Plaintiff asked to be placed on observation status due to feelings of loss and pain.

         On May 4, 2018, Defendant Gerlach conducted a cursory examination in a room with eight corrections officers and no privacy. Defendant Gerlach also conducted a chart review and diagnosed Plaintiff with chronic constipation and slight drug induced liver intoxication caused by Lipitor. Plaintiff requested treatment for his gall bladder, a liver biopsy, and an EGD due to his family history of small bowel cancer and mouth sores. Plaintiff also told Defendant Gerlach about his difficulties with Senna. After his exam, Defendant Gerlach ordered that Plaintiff's treatment for hyperlipidemia be discontinued and that he be placed back on Senna.

         On May 30, 2018, Plaintiff received a hepatitis screen result from March 27, 2018, showing that Plaintiff had tested positive for Hepatitis B. Plaintiff states that such a test signifies either the end of the acute infection phase of Hepatitis B or immunity as a result of the Hepatitis B vaccine. Plaintiff states that he was never vaccinated, but that Defendants claimed he was vaccinated in 1999. Defendants continued to tell Plaintiff that his symptoms were the result of constipation, Lipitor, and lactose intolerance. Defendant Harbaugh has continually denied all of Plaintiff's medical grievances, affidavits, and pleas for adequate health services.

         Plaintiff states that on May 15, 2018, Defendants Christiansen, Miniard, and Davis had Plaintiff moved from administrative segregation to a detention cell that had human feces on the ceiling, walls, and floor, and that there was blood on the mattress. Plaintiff was told that he was in a wing for “problem inmates.” Plaintiff claims that this move followed his request for grievance forms, for a writing surface in his cell, and for his grievances to be processed. Therefore, Plaintiff asserts that the move was retaliatory. Plaintiff's request for cleaning supplies was denied, so he cleaned the cell with a bar of hand soap and a wash cloth. Plaintiff then filed a grievance. On May 24, 2018, Defendant Davis stated that Plaintiff liked to write a lot and that he should enjoy his cell. Plaintiff spent three weeks in the cell and was never given any cleaning supplies. Plaintiff subsequently requested a hepatitis screen and an HIV test because of the condition of the cell, but his requests were denied. On June 4, 2018, Plaintiff was moved to an administrative segregation cell. On July 17, 2018, Plaintiff was placed on modified access to the grievance procedure.

         After initial review of the complaint, Plaintiff's remaining claims are that Defendants Miniard, Davis, and Christiansen retaliated against him in violation of his 1st Amendment rights, and that Defendants Corizon Health, Gluesing, Wixtrom, Papendick, Harbaugh, Stacy, Bonefeld, and Gerlach denied him medical care in violation of his 8th Amendment rights. (ECF No. 28, PageID.439-440.) Plaintiff seeks compensatory and punitive damages, as well as declaratory and injunctive relief.[4]

         Summary Judgment Standard

         Summary judgment is appropriate when the record reveals that there are no genuine issues as to any material fact in dispute and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Kocak v. Comty. Health Partners of Ohio, Inc., 400 F.3d 466, 468 (6th Cir. 2005); Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005). The standard for determining whether summary judgment is appropriate is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” State Farm Fire & Cas. Co. v. McGowan, 421 F.3d 433, 436 (6th Cir. 2005) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)); Tucker v. Union of Needletrades Indus. & Textile Employees, 407 F.3d 784, 787 (6th Cir. 2005). The court must consider all pleadings, depositions, affidavits, and admissions on file, and draw all justifiable inferences in favor of the party opposing the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Twin City Fire Ins. Co. v. Adkins, 400 F.3d 293, 296 (6th Cir. 2005).

         Exhaustion of Administrative Remedies

         A prisoner's failure to exhaust his administrative remedies is an affirmative defense, which Defendants have the burden to plead and prove. Jones v. Bock, 549 U.S. 199, 212-16 (2007). A moving party without the burden of proof need show only that the opponent cannot sustain his burden at trial. Morris v. Oldham Cnty. Fiscal Court, 201 F.3d 784, 787 (6th Cir. 2000); Minadeo v. ICI Paints, 398 F.3d 751, 761 (6th Cir. 2005). A moving party with the burden of proof faces a “substantially higher hurdle.” Arnett v. Myers, 281 F.3d 552, 561 (6th Cir. 2002); Cockrel v. Shelby Cnty. Sch. Dist., 270 F.3d 1036, 1056 (6th Cir. 2001). “Where the moving party has the burden -- the plaintiff on a claim for relief or the defendant on an affirmative defense -- his showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party.” Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986) (quoting W. SCHWARZER, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 487-88 (1984)). The Sixth Circuit repeatedly has emphasized that the party with the burden of proof “must show the record contains evidence satisfying the burden of persuasion and that the evidence is so powerful that no reasonable jury would be free to disbelieve it.” Arnett, 281 F.3d at 561 (quoting 11 JAMES WILLIAM MOORE, et al., MOORES FEDERAL PRACTICE § 56.13[1], at 56-138 (3d ed. 2000)); Cockrel, 270 F.2d at 1056. Accordingly, summary judgment in favor of the party with the burden of persuasion “is inappropriate when the evidence is susceptible of different interpretations or inferences by the trier of fact.” Hunt v. Cromartie, 526 U.S. 541, 553 (1999).

         Pursuant to the applicable portion of the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a), a prisoner bringing an action with respect to prison conditions under 42 U.S.C. § 1983 must exhaust his available administrative remedies. Porter v. Nussle, 534 U.S. 516, 532 (2002); Booth v. Churner, 532 U.S. 731, 733 (2001). A prisoner must first exhaust available administrative remedies, even if the prisoner may not be able to obtain the specific type of relief he seeks in the state administrative process. Porter, 534 U.S. at 520; Booth, 532 U.S. at 741; Knuckles El v. Toombs, 215 F.3d 640, 642 (6th Cir. 2000); Freeman v. Francis, 196 F.3d 641, 643 (6th Cir. 1999). In order to properly exhaust administrative remedies, prisoners must complete the administrative review process in accordance with the deadlines and other applicable procedural rules. Jones, 549 U.S. at 218-19; Woodford v. Ngo, 548 U.S. 81, 90-91 (2006). “Compliance with prison grievance procedures, therefore, is all that is required by the PLRA to ‘properly exhaust.'” Jones, 549 U.S. at 218-19. In rare circumstances, the grievance process will be considered unavailable where officers are unable or consistently unwilling to provide relief, where the exhaustion procedures may provide relief, but no ordinary prisoner can navigate it, or “where prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Ross v. Blake, 578 U.S.___, 136 S.Ct. 1850, 1859-60 (2016).

         Michigan Dept. of Corrections (MDOC) Policy Directive 03.02.130 (effective on July 9, 2007, superseded on March 18, 2019), sets forth the applicable grievance procedures for prisoners in MDOC custody at the time relevant to this complaint. Inmates must first attempt to resolve a problem orally within two business days of becoming aware of the grievable issue, unless prevented by circumstances beyond his or her control. Id. at ¶ P. If oral resolution is unsuccessful, the inmate may proceed to Step I of the grievance process and submit a completed grievance form within five business days of the attempted oral resolution. Id. at ¶¶ P, V. The inmate submits the grievance to a designated grievance coordinator, who assigns it to a respondent. Id. at ¶ V. The Policy Directive also provides the following directions for completing grievance forms: “The issues should be stated briefly but concisely. Information provided is to be limited to the facts involving the issue being grieved (i.e., who, what, when, where, why, how). Dates, times, places and names of all those involved in the issue being grieved are to be included.” Id. at ΒΆ R (emphasis in original). When prison ...


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