Cummings v. Klee

          Stephanie Dawkins Davis Magistrate Judge

          OPINION AND ORDER ADOPTING THE REPORT AND RECOMMENDATION [226]; OVERRULING DEFENDANT’S OBJECTION [227]; AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [201]

          ARTHUR J. TARNOW SENIOR UNITED STATES DISTRICT JUDGE

         Humpty Dumpty sat on a wall Humpty Dumpty had a great fall.

         All the King’s horses and all the king’s men Couldn’t put humpty together again.

         “Humpty Dumpty”^[1]

         Walter Cummings suffered many falls during his time at the Gus Harrison Correctional Facility. Though he was unable to function without a wheelchair and barrier-free housing, the prison medical providers believed that Mr. Cummings would somehow be healed or put back together again by the exercise of staggering, crawling, or scooting up and down the stairs of his facility. During this time, Mr. Cummings was 67-years-old, 6-feet 7-inches tall, and weighed 275 pounds. (Dkt. 203, PageID 1948). While he was afforded a wheelchair for longer travel, Mr. Cummings was deprived the use of a wheelchair for short distances. He was also moved from a cell on the first floor to a cell on the second. Somehow this was to make him whole.

         After one great fall, prison guards allegedly told Mr. Cummings, “you should be in Hollywood, because we looked at your fall and it looked almost real.” (Dkt. 82, pg. 9). The defendants surely would have been convinced that Mr. Cummings needed a wheelchair if, after one of his falls, he shattered into pieces like poor Mr. Dumpty. Though the defendants would have had the medical certainty so important to them, this would have been too late for Mr. Cummings, for neither all the king’s horses nor all the king’s men can put a man back together again once he is broken.

         Seeking redress for the deprivation of his special accommodations, Mr. Cummings has brought claims pursuant to 42 U.S.C. § 1983 against Defendant Roselyn Jindal, P.A. - an employee of the private contractor Corizon - and various other officials of the Michigan Department of Corrections (“MDOC”). Before the Court is Defendant Jindal’s Motion for Summary Judgment [201]. All pretrial matters, including this motion, had been referred [46] to Magistrate Judge Stephanie Dawkins Davis. Pursuant to 28 U.S.C. § 636(b)(1), the Magistrate Judge held a hearing on the motion on May 16, 2019 and then issued a Report and Recommendation (R&R) [226] on August 4, 2019.

         The R&R advises the Court to deny Jindal’s Motion for Summary Judgment. Defendant objected to the R&R on August 19, 2019 [227]. For the reasons stated below, the Court will overrule that objection and follow the Magistrate Judge’s recommendation to deny summary judgment.

         Factual Background

         The factual background is set forth in the R&R as follows.

         At all times relevant to the claims in his Amended Complaint Cummings was confined at the Gus Harrison Correctional Facility (ARF), and Jindal was a physician’s assistant and medical provider at ARF. (Dkt. 201 – Exhibit B, Jindal Affidavit, at ¶ 1-2). Cummings’s claims in his Amended Complaint arise out of two events that occurred on the same day: his move to a wheelchair non-accessible unit after having been afforded the accommodation of a barrier-free unit during a preceding period of months and his medical treatment after a fall down the stairs on September 26, 2013. Cummings has used a wheelchair since about 2011 (“three plus years” pre-dating the filing of his original complaint). (Dkt. 82, at ¶ 13, Dkt. 1 at ¶ 13).

         Neither party contests what is in the medical records attached to Jindal’s motion and Cummings’ response; instead, they contest the interpretation of the facts. The records show the following with regard to the wheelchair accommodations. On August 8, 2012, Jindal ordered for Cummings to receive an accommodation for wheelchair use for long distance only with a stop date of August 8, 2013. (Dkt. 203 - Medical Records, Pg ID 1945). Two weeks later, on August 22, 2012, Jindal added a further accommodation through August 8, 2013 for an attendant to assist Cummings with movement inside the prison. (Id. at Pg ID 1950). Despite the August 2012 accommodations he was afforded, in the latter months of 2012, Cummings filed kites complaining of falling while trying to put his wheelchair in his non-accessible cell and requested to be moved to an accessible cell. (Dkt. 205, Pg ID 2041-49). He variously reported severe pain in his lower back extending to his legs and feet, headaches, chest pain, chest bruising and pain in his right hand from falls in that occurred in August and November 2012. On November 28, 2012, in response to Cummings’ complaints about inaccessible housing, Jindal gave a verbal order for a wheelchair accessible room. (Dkt. 203, Pg. ID 1959). On November 29th, Jindal updated his special accommodations to include barrier-free housing, a wheelchair accessible bottom bunk in the cell, and wheelchair use not limited to distances. (Id. at Pg. ID 1963). These accommodations were scheduled to end on August 8, 2013. (Id. at Pg ID 1963). However, on January 14, 2013, Jindal updated Cummings’ records to reflect the following reduced special accommodations: bottom bunk housing, a walker for short-distance use, and a wheelchair for longdistance use; she removed the accommodations for a barrier-free cell, wheelchair-accessible housing and wheelchair use for all distances. (Id. at Pg ID 1969). She noted that, during this visit, Cummings was able to ambulate from his wheelchair to the examination table with a slow but steady gait with some assistance – grasping surrounding objects such as a door and bookshelf. (Id. at Pg ID 1967). She renewed the updated – i.e. more limited – accommodations after seeing him on September 9, 2013 for one year. (Id. at Pg ID 1975). During the September 9th visit, Jindal encouraged Cummings to increase his exercise. (Id.).

         A little over two weeks later, defendant nurse Ellenwood treated Cummings after a fall down the stairs on September 26, 2013 which was captured on videotape. (Dkt. 15, Exhibit 5). Cummings complained of pain in his lower back and the back of his head. (Dkt. 203, at Pg ID 1976). Ellenwood saw no signs of injury to his head or lower back. Ellenwood noted that Cummings used a wheelchair for distances but that he was moved to a unit without an elevator to encourage ambulation. After he had been in healthcare for an hour, Cummings told her that he could not climb the stairs back to his cell and asked for an elevator special accommodation. Ellenwood notified Jindal of this request but Jindal declined to discuss it with him. (Id.). Ellenwood gave Cummings ice or a cold compress for his back. (Id. at Pg ID 1977). In the critical incident report, Ellenwood stated that she notified Jindal that Cummings refused to get up off the gurney and that Jindal said Cummings could “walk just fine when he wants to.” (Dkt. 205, Pg ID 2037).

         On September 27th and 30th, Cummings kited healthcare complaining of back and leg pain. He was scheduled for a medical visit on October 1st. (Dkt. 203, at Pg ID 1979-80). Cummings presented to healthcare on October 1st with complaints of pain. He stated that Tylenol did not help with the pain he experienced from having to crawl or scoot up and down the stairs. (Id. at Pg ID 3). This medical record reflects that the “MSP” instructed Ellenwood to let Cummings “rest a while” in healthcare after the fall. (Dkt. 203, at Pg ID 1977). This record also reflects that the “MP” was notified of Cummings complaint that he could not the climb the stairs and request for the elevator accommodation. (Id.). Jindal identifies herself as the individual who instructed Ellenwood to let Cummings rest in healthcare (Dkt. 201, at p. 10) and as the individual who Ellenwood notified of the issue regarding climbing stairs (Id. at p. 4). It appears, then, that the MSP and MP noted in the records, at least this particular record, is Jindal. On October 1, 2013, medical staff gave him a hot compress and ACE wrap and referred him to Jindal for an assessment of his pain. The nurse who treated him that day noted Cummings’ complaints of pain and having to scoot on the stairs. She was unable to assess his gait but found that he was able to scoot himself around in a wheelchair using his feet and that he did not appear to be in distress. (Id. at Pg ID 1983-87). Cummings kited healthcare again on October 6, 2013, that Cummings’ accommodation for a barrier-free cell was discontinued after it expired on August 8, 2013, because his wheelchair accommodation was for distances only. Kopka further indicated that Jindal is the only person who can determine accommodations. (Id.).

         On October 19, Cummings submitted a request for healthcare because he fell again trying to get his wheelchair into his cell. (Dkt. 205, Pg ID 2059). On October 26, 2013, Cummings complained that he hurt his knees, hip, and lower back trying to use a shower that was inaccessible to disabled inmates. (Dkt. 205, Pg ID 2063). Cummings also stated that healthcare’s failure to accommodate his disabilities made it unsafe, difficult, and painful to move in the prison. (Id.). The nurse responding to the kite stated that the information had been forwarded to the housing unit manager (“HUM”) and that Cummings was scheduled to see a nurse for an evaluation of his pain. (Id. at Pg ID 2064). On October 30th, a nurse reviewed Cummings’ complaints about having to crawl on the stairs and having an inaccessible cell and shower. (Dkt. 203, at Pg ID 1998). The nurse indicated that the nursing supervisor addressed the issue with the “MP.” The MP stated that Cummings was able to walk up and down the stairs and that he had an accommodation for wheelchair use for distances only. On November 2, 2013, Cummings kited healthcare again for pain from crawling up and down the stairs. (Dkt. 205, at Pg ID 2065). The responding nurse explained that if he could not walk on the stairs, ...