United States District Court, W.D. Michigan, Southern Division
OPINION AND ORDER
T. NEFF, United States District Judge.
filed this prisoner civil rights action pursuant to 42 U.S.C.
§ 1983, and the matter was referred to the Magistrate
Judge. Defendants filed a motion for summary judgment (ECF
No. 13). Plaintiff filed a response to the motion (ECF Nos.
17-18) as well as a motion seeking additional time to obtain
an affidavit (ECF No. 19). Defendants filed a reply to
Plaintiff’s response (ECF No. 22). On January 22, 2019,
the Magistrate Judge issued an Order denying
Plaintiff’s motion (ECF No. 23) and a Report and
Recommendation (R&R), recommending this Court grant
Defendants’ motion for summary judgment and close this
case (ECF No. 24). The matter is presently before the Court
on Plaintiff’s appeal from the Magistrate Judge’s
Order (ECF No. 25) and Plaintiff’s objections to the
Magistrate Judge’s Report and Recommendation (ECF Nos.
26-27). Defendants filed a response to Plaintiff’s
objections (ECF No. 29). The Court denies the appeal, denies
the objections, and issues this Opinion and Order.
Order denying Plaintiff’s motion for additional time to
obtain an affidavit, the Magistrate Judge indicated that even
assuming Plaintiff had demonstrated both his need for the
discovery and why he had not previously obtained the
information, he had failed to provide “any indication
or suggestion as to what material facts he expects his expert
witness to provide” (Order, ECF No. 23 at
PageID.224-225). In his appeal from the Magistrate
Judge’s Order, Plaintiff does not dispute that he
failed to identify in his motion any material facts his
expert witness would provide. Plaintiff instead argues that
the Magistrate Judge’s “resolution in this case
of denying his motion for extension of time and
simultaneously recommending his lawsuit be terminated”
was “radically harsh” (ECF No. 25 at PageID.239).
Plaintiff’s argument fails to demonstrate that the
Magistrate Judge’s Order was either “clearly
erroneous or contrary to law.” See 28 U.S.C.
§ 636(b)(1)(A) (setting forth standard of review);
see also Fed. R. Civ. P. 72(a); W.D. Mich. LCivR
72.3(a). Therefore, the appeal is properly denied.
Magistrate Judge determined that Defendants Ouellette and
Corizon, Inc. are both entitled to summary judgment on the
merits (R&R, ECF No. 24 at PageID.230, 234). In
accordance with 28 U.S.C. § 636(b)(1)(B) and
Fed.R.Civ.P. 72(b)(3), the Court has performed de novo
consideration of those portions of the Report and
Recommendation to which objections have been made. See
also W.D. Mich. LCivR 72.3(b).
Defendant Ouellette, Plaintiff argues that summary judgment
is not properly granted where “the refusal to continue
a pre-existing medical accommodation for a brimmed hat and
long sleeve shirt interferes with prescribed treatment,
” the delays “resulted in unnecessary permanent
disfigurement, ” and the “cancellation of
follow-up care interferes with prescribed treatment”
(Pl.’s Objs., ECF No. 26 at PageID.244).
Plaintiff’s argument fails to demonstrate any factual
or legal error by the Magistrate Judge. Rather, Plaintiff
merely reiterates the positions he set forth to the
Magistrate Judge. As the Magistrate Judge pointed out,
allegations of negligent treatment, misdiagnosis, or medical
malpractice do not implicate the Eighth Amendment, and
Plaintiff presented no medical evidence establishing that he
suffered a detrimental effect as a result of the alleged
delay in treatment (R&R, ECF No. 24 at PageID.231, 234).
Defendant Corizon, Inc., Plaintiff argues that
“Corizon’s direct participation in the civil
rights violations, sworn to by Plaintiff in his verified
complaint, is not protected under the doctrine of respondeat
superior” (Pl.’s Objs., ECF No. 26 at
PageID.243). This argument also fails to demonstrate any
factual or legal error by the Magistrate Judge. As set forth
by the Magistrate Judge, Corizon is “not vicariously
liable for the actions of its employees and, therefore,
‘may not be sued under § 1983 for an injury
inflicted solely by its employees or agents’”
(R&R, ECF No. 24 at PageID.229, citing Thomas v. City
of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005)
(quoting Monell v. Dep’t of Social Servs., 436
U.S. 658, 694 (1978)). Rather, to impose liability against
Corizon, Plaintiff must demonstrate that he suffered a
violation of his federal rights “because of” a
Corizon policy or custom. Plaintiff has not addressed-let
alone demonstrated- how he suffered a violation of his
federal rights “because of” a Corizon policy or
Plaintiff’s objections are properly denied.
Accordingly, this Court adopts the Magistrate Judge’s
Report and Recommendation as the Opinion of this Court. A
Judgment will be entered consistent with this Opinion and
Order. See Fed. R. Civ. P. 58. Because this action
was filed in forma pauperis, this Court certifies,
pursuant to 28 U.S.C. § 1915(a)(3), that an appeal of
this decision would not be taken in good faith. See
McGore v. Wrigglesworth, 114 F.3d 601, 610 (6th Cir.
1997), overruled on other grounds by Jones v. Bock,
549 U.S. 199, 206, 211-12 (2007). Therefore:
IS HEREBY ORDERED that Plaintiff’s Appeal from
the Magistrate Judge’s Order (ECF No. 25) is DENIED.
IS FURTHER ORDERED that Plaintiffs Objections (ECF
Nos. 26-27) are DENIED and the Report and Recommendation of
the Magistrate Judge (ECF No. 24) is APPROVED and ADOPTED as
the Opinion of the Court.
IS FURTHER ORDERED that Defendants’ Motion for
Summary Judgment (ECF No. 13) is GRANTED.
IS FURTHER ORDERED that this Court certifies
pursuant to 28 U.S.C. Â§ 1915(a)(3) that an appeal of this