United States District Court, E.D. Michigan, Northern Division
ORDER OVERRULING OBJECTIONS, ADOPTING REPORT AND
RECOMMENDATION, GRANTING DEFENDANTS' MOTIONS TO DISMISS,
AND DISMISSING COMPLAINT
L. LUDINGTON UNITED STATES DISTRICT JUDGE.
is a state prisoner currently incarcerated at the Lakeland
Correctional Facility (LCF) in Coldwater, Michigan.
Plaintiff, who is proceeding pro se, brings this lawsuit
under 42 U.S.C. § 1983, based on alleged substandard
medical care. ECF No. 1. He names 13 defendants, all medical
providers allegedly involved in his treatment on or around
December 11 through December 14, 2017: Mohan Kulkarni, David
Williamson, James E. Heisel, Waseem Ullah, Katherine
McCormack, Daniel Smith, Amber Koon, Emily Prevo, Andrew A.
Nackashi, Dan Smith, E. Coe Hill, Katie LNU, and Corizon
Health. Id. He sues all defendants in their
individual and official capacities. Id. Plaintiff
claims that the events giving rise to his claims occurred at
Henry Ford Allegiance Hospital in Jackson, Michigan.
Id. He alleges generally that Defendants failed to
remove a tumor from his lung during a procedure on December
11, 2017. His complaint asserts two counts: 1) deliberate
indifference in violation of the Eighth Amendment, and 2)
medical malpractice pursuant to MCL 600.2912a.
matters were referred to Magistrate Judge Anthony Patti. ECF
No. 8. No. party objects to Judge Patti's detailed
factual and procedural summary, which can be found in Judge
Patti's thirty-six-page report and recommendation, ECF
No. 91. In his report and recommendation, Judge Patti
recommended granting Defendants' motions to dismiss,
dismissing Plaintiff's Eighth Amendment claim with
prejudice, and dismissing Plaintiff's state law medical
malpractice claim without prejudice for lack of jurisdiction.
Patti concluded that Plaintiff's individual capacity
Eighth Amendment claims are subject to dismissal because
Plaintiff did not allege sufficient facts from which the
Court could draw an inference that Defendants were
deliberately indifferent to Plaintiff's serious medical
needs. Judge Patti explained that Plaintiff alleged not that
he was denied medical care outright but that his medical care
was insufficient. Judge Patti explained that Plaintiff's
complaint alleged nothing more than medical negligence,
including Plaintiff's disagreement with the doctors'
professional judgment and his allegation of a misdiagnoses.
Id. at 15. Judge Patti further explained that
medical negligence does not rise to the level of deliberate
indifference under the Eighth Amendment. Finally, Judge Patti
explained that Plaintiff did not allege the personal
involvement of each defendant but merely alleged conduct of
the Defendants' generally.
respect to Plaintiff's official capacity claim under the
Eighth Amendment, Judge Patti explained that Plaintiff did
not allege the existence of a pattern or practice.
Id. at 18. Judge Patti recommended dismissing the
Eighth Amendment claim with prejudice and dismissing
Plaintiff's state law medical malpractice claim without
prejudice for lack of jurisdiction.
to Federal Rule of Civil Procedure 72, a party may object to
and seek review of a Magistrate Judge's report and
recommendation within 14 days after being served a copy of
the recommendation. Fed.R.Civ.P. 72(b)(2). A party may
respond to another party's objections within 14 days
after being served with a copy. Id. Objections must
be stated with specificity. Thomas v. Arn, 474 U.S.
140, 151 (1985) (citation omitted). If objections are made,
“[t]he district judge must determine de novo any part
of the magistrate judge's disposition that has been
properly objected to.” Fed.R.Civ.P. 72(b)(3). De novo
review requires at least a review of the evidence before the
Magistrate Judge; the Court may not act solely on the basis
of a Magistrate Judge's report and recommendation.
See Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th
Cir. 1981). After reviewing the evidence, the Court is free
to accept, reject, or modify the findings or recommendations
of the Magistrate Judge. See Lardie v. Birkett, 221
F.Supp.2d 806, 807 (E.D. Mich. 2002).
those objections that are specific are entitled to a de novo
review under the statute. Mira v. Marshall, 806 F.2d
636, 637 (6th Cir. 1986). “The parties have the duty to
pinpoint those portions of the magistrate's report that
the district court must specially consider.”
Id. (internal quotation marks and citation omitted).
A general objection, or one that merely restates the
arguments previously presented, does not sufficiently
identify alleged errors on the part of the magistrate judge.
See VanDiver v. Martin, 304 F.Supp.2d 934, 937 (E.D.
Mich. 2004). An “objection” that does nothing
more than disagree with a magistrate judge's
determination, “without explaining the source of the
error, ” is not considered a valid objection.
Howard v. Sec'y of Health and Human Servs., 932
F.2d 505, 509 (6th Cir. 1991). Without specific objections,
“[t]he functions of the district court are effectively
duplicated as both the magistrate and the district court
perform identical tasks. This duplication of time and effort
wastes judicial resources rather than saving them, and runs
contrary to the purposes of the Magistrate's Act.”
filed his objections on June 13, 2019. ECF No. 94. In his
first objection, Plaintiff argues that he “can prove
without a doubt that Plaintiff has a serious medical need and
that defendant's acts were deliberately indifferent if he
knows of a substantial risk to an inmate health yet
recklessly disregards the risk by failing to take reasonable
measures to abate it.” This is nonresponsive to Judge
Patti's analysis of the sufficiency of the allegations in
Plaintiff's complaint. The objection will be overruled.
second objection is perhaps easier to quote in full than to
The recommendation that this claim of an eight amendment
violation of cruel and unusual punishment and mis-diagnosis
be dismissed is in error and contrary to the rulings by the
sixth circuit. Indeed the responses at all three steps had
sufficient information afford both prison officials and
defendants that he was being denied medical treatment by the
three different diagnosis given by both defendants. Neither
of which cured the pain and suffering, or assisted Plaintiff
in the results of the cat scans that warned the doctors or
defendants before Dec. 11 2017 not to have open surgery. The
replies were basis the same at all three steps with a merit
based denial for the claims of deliberate indifference to the
serious medical need. All three steps addressed the claims
embedded in the grievance process including all three replys
and different diagnosis and the inadequate treatment by the
different doctors and the different medication as to be told