United States District Court, E.D. Michigan, Southern Division
Anthony P. Patti United States Magistrate Judge.
ORDER ACCEPTING AND ADOPTING REPORT AND
RECOMMENDATION [#46] GRANTING DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT [#32] AND DISMISSING THIS ACTION WITHOUT
Gershwin A. Drain United States District Court Judge.
Introduction and Factual Background
Plaintiff James Whorton is currently incarcerated at the
Woodland Center Correctional Facility (“WCC”).
Dkt. No. 1, pg. 4 (Pg. ID 4). In June of 2014, he was housed
at the Ionia Correctional Facility. Id. at pg. 5
(Pg. ID 5). On June 7, 2014, Plaintiff cut his stomach and he
was sent to the hospital. Id. On June 9, 2014,
Plaintiff cut his stomach again “to a graver
extent” and was sent back to the hospital. Id.
Plaintiff alleges that on both occasions, the hospital failed
to repair his wound. Id. After being discharged from
the hospital, Plaintiff was sent to WCC, his current
facility. Id. Defendant Joan Roggenbuck was the
Warden of WCC during the relevant time period. Defendant Joe
Lapum was the Resident Nurse Manager at WCC during the
relevant time period. Defendant Alfred Brown was the Health
Unit Manger at WCC during the relevant time period who
supervised the nurses and resident nurse managers.
Id. at pg. 6 (Pg. ID 6).
staff at WCC placed Plaintiff in the infirmary ward for 2.5
months. Id. During this time, Plaintiff's wound
was opened and his intestines were encased in a transparent
“shield.” Id. Plaintiff's complaint
asserts that over 6 inches of his intestines were protruding
from his stomach during this time. Id. In addition,
Plaintiff had a colostomy bag. Id. For 6 months,
Plaintiff received Vicodin and Norco to manage his pain.
Id. Before his prescription expired, Plaintiff filed
a grievance requesting that his pain medication be reordered.
Id. at pg. 6 (Pg. ID 6). Instead, Plaintiff received
Tylenol when his prescription ended, which did not help his
pain. Id. Plaintiff repeatedly requested WCC to
re-prescribe his Vicodin and Norco pain medication.
Id. WCC denied Plaintiff's grievance to refill
his Vicodin and Norco. Id. Plaintiff had 6 inches of
his intestine protruding from his stomach and a colostomy bag
for nearly two years. Id.
states that his pain and suffering caused severe mental
anguish and resulted in him injuring himself again.
Id. After Plaintiff injured himself for the third
time, the medical team at WCC removed his colostomy bag and
repaired his stomach. Id.
October 27, 2016, Plaintiff filed a complaint against Joan
Roggenbuck, Kim Ferris-the head physician assistant and WCC,
Shanthi Gopal-the doctor at WCC, Joe Lapum, and Alfred Brown.
Dkt. No. 1. On December 11, 2017, this Court accepted
Magistrate Judge Patti's Report and Recommendation
(“R&R”) and dismissed defendants Ferris and
Gopal for failure to state an Eighth Amendment claim of
deliberate indifference against them. Dkt. No. 36, 40.
matter is before the Court on Defendants Joan Roggenbuck and
Alfred Brown's Motion for Summary Judgment, filed on
October 2, 2017. Dkt. No. 32. Plaintiff filed two responses
on December 21, 2017. Dkt. Nos. 42, 43. This Court referred
the matter to Magistrate Judge Anthony P. Patti on September
14, 2018. Dkt. No. 45. Magistrate Judge Patti issued a
R&R on October 9, 2018, recommending that the Court grant
Defendants' Motion for Summary Judgment. Dkt. No. 46. The
R&R stated that this Court should dismiss Plaintiff's
claims against Roggenbuck, Brown, and Defendant Joe Lapum for
failure to state a claim upon which relief can be granted.
Id. at pg. 1 (Pg. ID 303). Alternatively, the
R&R recommended that this Court should grant
Defendants' Motion for Summary Judgment to the extent
that it seeks dismissal for failure to state a claim upon
which relief can be granted. Id.
October 24, 2018, Plaintiff filed an Objection. Dkt. No. 47.
Plaintiff's Objection is not written like a standard
objection. Rather, it is similar to an amended complaint in
that it attempts to expound on and give greater detail to the
allegations made in his original complaint.
for the reasons discussed below, the Court will accept and
adopt Magistrate Judge Patti's R&R and dismiss
Plaintiff's complaint against Defendants Roggenbuck,
Brown, and Lapum without prejudice.
Court employs “a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C.
§ 636 (b)(1)(C). This Court “may accept, reject or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge.” Id. However,
when objections are “merely perfunctory responses . . .
rehashing . . . the same arguments set forth in the original
petition, reviewing courts should review [a Report and
Recommendation] for clear error.” Ramirez v.
U.S., 898 F.Supp.2d 659, 663 (S.D.N.Y. 2012).