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Witek v. Washington

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

June 22, 2019


          Arthur J. Tarnow, District Judge.



         I. RECOMMENDATION: The Court should GRANT Defendant Anderson's February 19, 2019 motion for summary judgment. (DE 33.)

         II. REPORT

         A. Plaintiff initiated this lawsuit against five Defendants.

         Plaintiff Kyle Avery Witek is currently incarcerated at the Michigan Department of Corrections (MDOC) Macomb Correctional Facility (MRF) in Lenox Township, Michigan, and apparently suffers from Crohn's Disease.[1] On November 6, 2017, while incarcerated at the St. Louis Correctional Facility (SLF), Plaintiff filed this lawsuit in pro per against five defendants. His combination form / handwritten complaint includes, among other things, a statement of claim (DE 1 at 7-26), a description of injuries and a prayer for relief (DE 1 at 27-30), details on exhaustion (DE 1 at 31-33), as well as some “additional information, ” (DE 1 at 37-38).

         Plaintiff is proceeding in forma pauperis. (DEs 2, 3.) On December 15, 2017, Judge Tarnow entered an opinion and order of partial summary dismissal and directing service upon the remaining defendants. (DE 5.) Accordingly, Washington, Balcarcel, and Zamora were terminated as Defendants.

         Defendants Anderson, a Registered Dietician, and Delbeke, a Nurse Practitioner, have since appeared and are represented by counsel. (DE 1 at 4-5, 11, 50; DEs 9, 10, 16, 25; see also DE 33-3 at 2.)

         B. Defendant Anderson is the only remaining, active Defendant.

         Although Plaintiff filed another complaint on February 16, 2018, it was stricken from the record a month later. (DEs 8, 11.) More recently, on January 9, 2019, the Court granted Defendant Delbeke's motion to dismiss for failure to exhaust administrative remedies. (DEs 13, 30.) Accordingly, Delbeke was terminated as a Defendant, and only Defendant Anderson remains.

         Judge Tarnow has referred this case to me for all pretrial proceedings. Currently before the Court is Defendant Anderson's February 19, 2019 motion for summary judgment. (DE 33.) Plaintiff's verified response is timely under the Prisoner Mailbox Rule. (DE 34, DE 35.) Houston v. Lack, 487 U.S. 266, 270 (1988). Defendant has filed a timely reply. (DEs 34, 36.)

         C. Fed.R.Civ.P. 56(a)

         Under Federal Rule of Civil Procedure 56, “[t]he 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). A fact is material if it might affect the outcome of the case under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court “views the evidence, all facts, and any inferences that may be drawn from the facts in the light most favorable to the nonmoving party.” Pure Tech Sys., Inc. v. Mt. Hawley Ins. Co., 95 Fed.Appx. 132, 135 (6th Cir. 2004) (citation omitted).

         “The moving party has the initial burden of proving that no genuine issue of material fact exists . . . .” Stansberry v. Air Wis. Airlines Corp., 651 F.3d 482, 486 (6th Cir. 2011) (internal quotations omitted); cf. Fed.R.Civ.P. 56 (e)(2) (providing that if a party “fails to properly address another party's assertion of fact . . . [, ]” then the court may “consider the fact undisputed for the purposes of the motion[.]”). “Once the moving party satisfies its burden, ‘the burden shifts to the nonmoving party to set forth specific facts showing a triable issue.'” Wrench LLC v. Taco Bell Corp., 256 F.3d 446, 453 (6th Cir. 2001) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). The nonmoving party must “make an affirmative showing with proper evidence in order to defeat the motion.” Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009) (citation omitted); see also Metro. Gov't of Nashville & Davidson Cnty., 432 Fed.Appx. 435, 441 (6th Cir. 2011) (“The nonmovant must, however, do more than simply show that there is some metaphysical doubt as to the material facts . . . . [T]here must be evidence upon which a reasonable jury could return a verdict in favor of the non-moving party to create a genuine dispute.”) (internal quotation marks and citations omitted).

         Summary judgment is appropriate if the evidence favoring the nonmoving party is merely colorable or is not significantly probative. City Management Corp. v. United States Chem. Co., 43 F.3d 244, 254 (6th Cir. 1994). In other words, summary judgment is appropriate when “a motion for summary judgment is properly made and supported and the nonmoving party fails to respond with a showing sufficient to establish an essential element of its case[.]” Stansberry, 651 F.3d at 486 (referencing Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986)).

         The fact that Plaintiff is pro se does not lessen his or her obligations under Rule 56. Rather, “[t]he liberal treatment of pro se pleadings does not require lenient treatment of substantive law, and the liberal standards that apply at the pleading stage do not apply after a case has progressed to the summary judgment stage.” Johnson v. Stewart, No. 08-1521, 2010 WL 8738105, at *3 (6th Cir. May 5, 2010) (internal citations omitted). The Sixth Circuit has made clear that, when opposing summary judgment, a party cannot rely on allegations or denials in unsworn filings and that a party's “status as a pro se litigant does not alter [this] duty on a summary judgment motion.” Viergutz v. Lucent Techs., Inc., 375 Fed.Appx. 482, 485 (6th Cir. 2010) (emphasis added); see also United States v. Brown, 7 Fed.Appx. 353, 354 (6th Cir. 2001) (affirming grant of summary judgment against a pro se plaintiff because he “failed to present any evidence to defeat the government's motion”).

         D. Discussion

         1. Plaintiff's SLF confinement diet

         Plaintiff declares that the therapeutic diet prescribed to him, presumably at the time he was diagnosed with Crohn's in September 2014, consisted of “high protein, soft, bland food . . . .” (DE 1 at 14, DE 35 at 11 ¶ 13.) He claims he was remanded to the MDOC's custody in June 2015. (DE 1 at 14.) The MDOC currently defines a therapeutic diet as “[a] modified diet plan prescribed by the MP or dentist for a prisoner whose nutritional needs cannot be adequately met from the MDOC Statewide Standard Menu.” MDOC PD 04.07.101, effective Sept. 1, 2018, ¶ D. According to Plaintiff, the MDOC claimed it did not specifically provide the prescribed diet and, in its place, “provided a low residue diet[.]” (DE 35 at 11 ¶ 14.) Whatever differences may exist between the diet as allegedly prescribed and the therapeutic diet provided by the MDOC, they do not appear to be the basis of Plaintiff's claims.[2]

         a. January 31, 2017 - February 22, 2017

         Plaintiff alleges that he was transferred to SLF on January 31, 2017. (DE 1 at 14, 48.) Renewal of his therapeutic diet detail became a problem at SLF, allegedly because his care “once again fell to [Dietician] Anderson[.]” (Id. at 20, 38.) He also claims to have had “troubles being provided meals that were in accordance with . . . [his] therapeutic diet requirements.” (Id. at 14, 38.)

         The salient events began on February 1, 2017, when Delbeke prescribed Loperamide, an antidiarrheal. (DE 33-12 at 2.)[3] It seems that Defendant Anderson reviewed Plaintiff's chart on February 14, 2017 and/or February 17, 2017. (Id. at 61, DE 33-3 at 2; see also DE 33-16 at 5.)

         On February 21, 2017, Plaintiff completed a health care request regarding the then-forthcoming expiration of his diet detail. (DE 1 at 15, 54.) Nurse Adams's same-day response indicates that a nurse's visit was to be scheduled on or about February 23, 2017 to discuss the dietician's response to the chart review. (DE 1 at 55.)

         Plaintiff contends that, on February 22, 2017, a registered dietician - presumably Defendant Anderson - extended his diet detail to March 23, 2017, pending review of his chart. (Id. at 21, 38, 89.) The order appears to have been placed by Natalie Souder, R.N. (DE 33-9 at 2.)

         b. February 23, 2017 - March 2017

         Plaintiff asserts that the events giving rise to his claims “began essentially on February 23, 2017, ” at which point he was notified “of the denial to renew [hi]s therap[eu]tic diet by medical staff, and the registered dietician[, ]” also presumably Defendant Anderson. (Id. at 13.) It does appear that a ...

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