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Blau v. Fortescue

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

June 26, 2019

James E. Blau, Plaintiff,
v.
Angela Fortescue, et al., Defendants.

          Elizabeth A. Stafford, U.S. Magistrate Judge.

          OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [11]

          Arthur J. Tarnow, Senior United States District Judge.

         Plaintiff, James Blau, was a prisoner at the G. Robert Cotton Correctional Facility (“JCF”) of the Michigan Department of Corrections (“MDOC”) when he brought this suit on November 8, 2016. He alleged that prison officials were denying him the low-fat, low-cholesterol, and low-sodium diet that was medically necessary to alleviate his cardiovascular problems. Since then, he has been transferred to a different MDOC facility and provided a vegan diet that meets his medical needs. Though this change moots his case for injunctive relief, Mr. Blau is still entitled to pursue monetary relief for Defendants' refusal to provide him with his medically necessary diet in the first place.

         Defendant has filed a Motion for Summary Judgment [11] arguing that Mr. Blau did not exhaust his administrative remedies and that Defendants are entitled to qualified immunity. That motion will be granted as to Defendants Washington and Doe but denied as to Defendant Fortescue.

         Factual and Procedural History

         The underlying basis for Plaintiff's motions stems from his July 2016 heart surgery at Henry Ford Allegiance Hospital, during which doctors placed a stent in an artery with 90% blockage. (Compl. at 1). According to Plaintiff, the doctors noted that blockages in other arteries could be remedied through the use of certain medications and a low-fat / low-sodium diet. After the surgery, Dr. Danial Rashid, M.D., or a member of his staff, ordered that Plaintiff be prescribed a low-fat, low-cholesterol, 2, 000 milligram sodium therapeutic diet. (Dkt. 17, Pg. ID 276). Similarly, on May 15, 2017, after Plaintiff received a second heart catheterization, a registered nurse completed discharge instructions informing Plaintiff that he should maintain “a low cholesterol low fat vegan diet per Dr. Pielsticker.” (Id. at Pg. ID 282).

         Shortly after receiving his first surgical discharge, Mr. Blau filed a kite with JCF Health Services requesting a low-sodium diet. (Dkt. 11-2, Affidavit of Angela Fortescue, May 4, 2017, ¶ 6). Upon receiving the kite, Ms. Fortescue, a Registered Dietician with the MDOC, prepared a nutritional assessment in accordance with the MDOC Policy Directive on Therapeutic Diet Services, PD 04.07.101. (Id. at ¶ 4). The assessment included her recommendation that Mr. Blau “did not require a therapeutic diet.” (Id. at ¶ 7). Instead, Ms. Fortescue recommended that staff “reinforce healthy choices off the regular meal line, ” and attached the Healthy Choice Options guidelines to assist Mr. Blau with making such choices. (Id.).

         Ms. Fortescue provided two justifications for her actions in her affidavit. First, she noted that the regular meal line at all MDOC facilities provides a no added salt diet which prisoners can select. (Id. at ¶ 8). Second, Ms. Fortescue noted that Mr. Blau's “medical records did not evidence a medical need for the 2 g sodium diet.” (Id. at ¶ 9). She observed that “[t[here was no order from the physician or physician assistant at MDOC requiring this - despite repeated, recent visits by this provider and health services.” (Id.). She further noted that a 2-gram[1] sodium diet was reserved, according to the aforementioned MDOC manual, for prisoners with conditions “like congestive heart failure, liver disease, kidney failure, and refractory hypertension.” (Id.). Ms. Fortescue also noted that Mr. Blau was in the habit of purchasing unhealthy snacks from the commissary store. (Id. at ¶ 10). She found that “consumption of these items would mitigate, if not entirely remove, any health benefit of the 2g diet.” (Id.).

         On August 9, 2016, Mr. Blau filed a Step I grievance pursuant to the MDOC grievance procedure. That grievance stated as follows.

DELIBERATE INDIFFERENCE TO SERIOUS MEDICAL NEEDS: ANGELA FORTESCUE R.D. DENIED A MEDICALLY ORDERED THERAPEUTIC DIET PRESCRIBED TO TREAT MY CORONARY ARTERY DISEASE. I have been diagnosed with Cardiovascular Artery Disease (CAD) and recently had an angioplasty which discovered a 90% blockage in my coronary artery (which they stented), and two other significant blockages noted but not stented. Cardiac specialists from the Michigan Heart Group at Allegiance Health ORDERED a low sodium / low fat diet with several notifications. On 8/8/16, I was notified that the MDOC/JCF Dietician ANGELA FORTESCUE, R.D. OVERRULED these cardiologists and DENIED this therapeutic diet.

(Dkt. 11-4, Pg. ID 85).

         Mr. Blau was interviewed about his grievance, and MDOC's Summary of the Step I Response read as follows.

According to the [Electronic Health Record], Mr. Blau 214995 on 8/4/16 Dietary did a chart review at this time she indicates that Grievant does not require a therapeutic diet and to reinforce healthy choices off the regular meal line. Also checked his store orders from the last 2 months included items such as refried beans, spicy chili with beans, honey roasted peanuts, flour tortillas, ...

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