United States District Court, E.D. Michigan, Southern Division
James E. Blau, Plaintiff,
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
J. Tarnow, Senior United States District Judge.
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.
has filed a Motion for Summary Judgment  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.
and Procedural History
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).
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
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 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.”
August 9, 2016, Mr. Blau filed a Step I grievance pursuant to
the MDOC grievance procedure. That grievance stated as
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).
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, ...