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Sedore v. Burt

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

September 12, 2019

SCOTT SEDORE, Plaintiff,
v.
SHERRY BURT, et al., Defendants.

          HON. PAUL L. MALONEY JUDGE.

          REPORT AND RECOMMENDATION

          RAY KENT UNITED STATES MAGISTRATE JUDGE

         This is a pro se civil rights action brought by a state prisoner at a Michigan Department of Corrections (MDOC) facility pursuant to 42 U.S.C. § 1983. This matter is now before the Court on a motion for summary judgment filed by defendants Barbara Bien, P.A., Jon Decker, M.D., Suzanne Howard, M.D., and Richard Worel, M.D. (collectively referred to as the “Corizon defendants”) (ECF No. 125), and a motion for summary judgment filed by defendants Sherry Burt, Michael Wilkinson, and Tamerla Hamilton (collectively referred to as the “MDOC defendants”) (ECF No. 140).

         I. Background

         Plaintiff filed a 27-page complaint. By way of background, on October 9, 2009, while driving intoxicated, plaintiff caused a motor vehicle accident which killed one person, injured another, and caused himself serious injuries. Compl. (ECF No. 1, PageID.7). Plaintiff was convicted of crimes related to the accident. Due to his criminal history, plaintiff was sentenced as an habitual offender and began serving his sentence at the MDOC on May 19, 2011. Id. at PageID.11. According to plaintiff, since his incarceration at the MODC, he has “slid dramatically backwards in physical health, ” has “pursued and fought for adequate medical care, ” and has been transferred six times. Id. at PageID.11-12. Plaintiff stated that he needs medical care related to the following: cardiology exam; swollen lymph nodes in the right side of his chest; ongoing physical therapy; ongoing orthotics and treatment; respiratory/lung specialist assessment; urologist referral; orthopedic surgeon referral (related to his November 2013 hip replacement); left knee problem; right knee problem; comprehensive program for pain management; remove rod in left femur; neuro-psychology treatment; posttraumatic stress disorder; medical devices related to his disabilities (air mattress, orthopedic shoes, a walker, ice for his left foot, hot water bottle for chronic back pain, ace bandages, urinal bottle, medical detail for unlimited bathroom access due to urinary problems, padded cane handle, basin tub to soak feet, heavy duty diaper/incontinence undergarment); and, to purchase a wheelchair, shower chair, and necessary appliances and supplies at his own expense. Id. at PageID.12-15.

         In this case, plaintiff's complaint named the following defendants at the Muskegon Correctional Facility (“MCF”): Warden Sherry Burt; Health Unit Manager (“HUM”) and RN Michael Wilkinson; RN Tamerla Hamilton;[1] PA Barbara Bien; Dr. Jon W. Decker; Dr. Richard Worel; Dr. Suzanne Howard; and Corizon, Inc (“Corizon”). Id. at PageID.2-3. At the heart of plaintiff's complaint is plaintiff's claim that he received “barbaric” medical care since being transferred to MCF on June 4, 2015.[2] Id. at PageID.17.

         The Court adopted the undersigned's recommendation that some claims be dismissed, that defendant Corizon, Inc., be dismissed, and that the case proceed “on plaintiff's claims that the individual defendants violated his Eighth Amendment rights by being deliberately indifferent to his serious medical needs as alleged in Counts I-X, XII, XIV, and XVIII-XX, and that defendants Wilkinson and Hamilton retaliated against plaintiff in violation of the First Amendment as alleged in Counts XIII and XVI.” R&R (ECF No. 85, PageID.1549-1550) (emphasis in original); Order Adopting R&R (ECF No. 95, PageID.1585). As discussed in the Court's Order (ECF No. 95), the following claims survived defendants' dispositive motions and form the basis of this lawsuit:

Count I. Since June 4, 2015, plaintiff has written kites to MCF Warden Burt about his poor medical care at MCF, but the Warden has never spoken to him or intervened on his behalf.
Count II. In June 2015, PA Bien denied plaintiff a referral to a urologist and adequate pain medication.
Count III. On June 10, 2015, HUM Hamilton cancelled plaintiff's accommodation order for a padded cane handle.
Count IV. On June 24, 2015, HUM Wilkinson and NS Hamilton scheduled an appointment with Dr. Howard to discuss plaintiff's details and accommodations, which resulted in Dr. Howard taking away plaintiff's basin tub and Epsom salts.
Count V. On June 24, 2015, Dr. Howard ignored plaintiff's plea for adequate pain medication.
Count VI. On August 7, 2015, HUM Wilkinson and NS Hamilton scheduled plaintiff to see Dr. Worel to discuss details and accommodations, which resulted in the doctor cancelling plaintiff's hot water bottle, ace wrap, and ice.
Count VII. On August 7, 2015, Dr. Worel ignored plaintiff's plea for adequate pain medication.
Count VIII. In September 2015, PA Bien ignored plaintiff's pleas to refer him to a urologist and for adequate pain medication.
Count IX. On October 15, 2015, PA Bien cancelled plaintiff's pain medication, because he would not take Pamelar and Mobic.
Count X. In December 2015, PA Bien ignored plaintiff's pleas to refer him to a urologist and for adequate pain medication.
Count XII. On January 26, 2016, Wilkinson took away plaintiff's shower chair.
Count XIII. On February 18, 2016, HUM Wilkinson and NS Hamilton retaliated and harassed plaintiff by having officers shake down his cell.
Count XIV. On April 1, 2016, Dr. Decker ignored plaintiff's plea for adequate pain medication.
Count XVI. On April 20, 2016, HUM Wilkinson and NS Hamilton retaliated and harassed plaintiff by having officers shake down his cell.
Count XVIII. On April 21, 2016, Dr. Decker ignored plaintiff's pleas to send him to a urologist and for adequate pain medication.
Count XIX. On May 12, 2016, Dr. Decker cancelled plaintiff's accommodation for a shower chair.
Count XX. On May 12, 2016, Dr. Decker ignored plaintiff's pleas to send him to a urologist and for adequate pain medication.

         II. Motions for summary judgment

         A. Legal standard

         “The 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). Rule 56 further provides that a party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1).

         In Copeland v. Machulis, 57 F.3d 476 (6th Cir. 1995), the court set forth the parties' burden of proof in a motion for summary judgment:

The moving party bears the initial burden of establishing an absence of evidence to support the nonmoving party's case. Once the moving party has met its burden of production, the nonmoving party cannot rest on its pleadings, but must present significant probative evidence in support of the complaint to defeat the motion for summary judgment. The mere existence of a scintilla of evidence to support plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.

Copeland, 57 F.3d at 478-79 (citations omitted). “In deciding a motion for summary judgment, the court views the factual evidence and draws all reasonable inferences in favor of the nonmoving party.” McLean v. 988011 Ontario Ltd., 224 F.3d 797, 800 (6th Cir. 2000). However, the Court is not bound to blindly adopt a non-moving party's version of the facts. “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).

         B. Corizon defendants

         1. Failure to exhaust

         The PLRA provides that a prisoner bringing an action with respect to prison conditions under 42 U.S.C. § 1983 must first exhaust available administrative remedies. See Porter v. Nussle, 534 U.S. 516 (2002); Booth v. Churner, 532 U.S. 731 (2001). A prisoner must exhaust available administrative remedies, even if the prisoner may not be able to obtain the specific type of relief he seeks in the state administrative process. See Porter, 534 U.S. at 520; Booth, 532 U.S. at 741. One reason for creating prisoner grievance procedures under the PLRA was to create an administrative record for the court.

Requiring exhaustion allows prison officials an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court. This has the potential to reduce the number of inmate suits, and also to improve the quality of suits that are filed by producing a useful administrative record.

Jones v. Bock, 549 U.S. 199, 204 (2007). In order to properly exhaust administrative remedies, prisoners must complete the administrative review process in accordance with the deadlines and other applicable procedural rules. Id. at 218; Woodford v. Ngo, 548 U.S. 81, 90-91 (2006). “Compliance with prison grievance procedures, therefore, is all that is required by the PLRA to ‘properly exhaust.'” Jones, 549 U.S. at 218.

         The MDOC requires prisoners to follow a three-step process to exhaust grievances. See Policy Directive 03.02.130 (effective July 9, 2007). A prisoner must first attempt to resolve a problem with the staff member within two business days of becoming aware of the grievable issue, unless prevented by circumstances beyond his or her control. Id. at ¶ P. If the issue is not resolved, then the grievant may file a Step I grievance on the prescribed form within five business days after the grievant attempted to resolve the issue with appropriate staff. Id. at ¶¶ P and R. The Policy Directive provides the following directions for completing grievance forms:

The issues should be stated briefly but concisely. Information provided is to be limited to the facts involving the issue being grieved (i.e., who, what, when, where, why, how). Dates, times, places and names of all those involved in the issue being grieved are to be included.

Id. at ¶ R (emphasis in original). The prisoner must send the Step I grievance to the appropriate grievance coordinator. Id. at ¶ V. If the prisoner is dissatisfied with the Step I response, or does not receive a timely response, he must request the appropriate form and send it to the Step II Grievance Coordinator. Id. at ¶ BB. Finally, if a prisoner is dissatisfied with the Step II response, or does not receive a timely response, he must send a completed Step III grievance, using the appropriate form, to the Grievance and Appeals Section. Id. at ¶ FF.

         a. PA Bien (Counts II, VIII, IX, and X)

         Plaintiff has four claims against defendant Bien: Count II (Bien failed to refer plaintiff to a urologist in June 2015); Count VIII (Bien ignored plaintiff's request for a urologist referral and pain medication in September 2015); Count IX (Bien cancelled plaintiff's pain medication on October 15, 2015); and Count X (Bien ignored plaintiff's request for a referral to a urologist and pain medication in December 2015). Defendant Bien points out that while plaintiff filed seven grievances at MCF, none of them exhausted the claims against her: MCF-15-06-0600-28I (“600”) (June 9, 2015)[3] (denial of adequate accommodations and details for wheelchair use and his disability needs) (PageID.1734); MCF-15-08-0837-12Z (“837”) (August 7, 2015) (denial of access to a pulmonary specialist) (PageID.1739); MCF-15-08-0836-12Z (“836”) (August 7, 2015) (PageID.1744) denial of access to a neuro-psychologist for past trauma to the head); MCF-15-08-0856-28i (“856”) (August 11, 2015) (denial of treatment for ongoing cardiac concerns) (PageID.1749); MCF-16-01-0103-12z (“103”) (January 19, 2016) (Medical Provider (“MP”) discontinued his accommodation for incontinence garments) (PageID.1754); MCF-16-07-0805- 28A (“805”) (July 1, 2016) (denial of special accommodations for his urinary incontinence) (PageID.1758); and, MCF-16-07-0806-28A (“806”) (July 1, 2016) (denial of adequate medical care) (PageID.1763).[4] See Grievances (ECF No. 125-7, PageID.1730-1763). Based on this record, there is no evidence that plaintiff properly exhausted any grievances with respect to the four claims alleged against defendant PA Bien. See Jones, 549 U.S. at 218-19; Woodford, 548 U.S. at 90-93. Accordingly, PA Bien is entitled to summary judgment on the claims alleged against her.[5]

         b. Dr. Decker (Counts XIV, XVIII, XIX, and XX)

         Plaintiff has four claims against defendant Dr. Decker: Count XIV (Decker ignored plaintiff's request for pain medication on April 1, 2016); Count XVIII (Decker ignored plaintiff's request to send him to a urologist and for adequate pain medication on April 21, 2016); Count XIX (Decker cancelled plaintiff's accommodation for a shower chair on May 12, 2016); and, Count XX (Decker ignored plaintiff's request to send him to a urologist and for adequate pain medication on May 12, 2016).[6] Defendant Dr. Decker points out that plaintiff filed four grievances at MCF, none of which exhausted the claims against Decker in the present action: MCF-16-05-0535-12I (“535”) (April 21, 2016) (MP denied or discontinued his special accommodation for an extra blanket) (PageID.1767); MCF-16-06-0732-12E2 (“732”) (June 21, 2016) (denied an evaluation and forced to sit in pain on June 21, 2016) (PageID.1772); Grievance 805 (July 11, 2016) (denial of special accommodations for urinary incontinence); and, Grievance 806 (July 11, 2016) (denial of adequate medical care). Based on this record, there is no evidence that plaintiff properly exhausted any grievances with respect to the four claims alleged against defendant Dr. Decker. See Jones, 549 U.S. at 218-19; Woodford, 548 U.S. at 90-93. Accordingly, Dr. Decker is entitled to summary judgment on the claims alleged against him in this action.

         c. Dr. ...


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