United States District Court, E.D. Michigan, Southern Division
Stephanie Dawkins Davis Magistrate Judge
OPINION AND ORDER ADOPTING THE REPORT AND
RECOMMENDATION ; OVERRULING
DEFENDANT’S OBJECTION ; AND DENYING
DEFENDANT’S MOTION FOR SUMMARY
J. TARNOW SENIOR UNITED STATES DISTRICT JUDGE
Dumpty sat on a wall Humpty Dumpty had a great
the King’s horses and all the king’s men
Couldn’t put humpty together again.
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.
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.
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 . All
pretrial matters, including this motion, had been referred
 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)  on August 4, 2019.
R&R advises the Court to deny Jindal’s Motion for
Summary Judgment. Defendant objected to the R&R on August
19, 2019 . For the reasons stated below, the Court will
overrule that objection and follow the Magistrate
Judge’s recommendation to deny summary judgment.
factual background is set forth in the R&R as follows.
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 ¶
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.).
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).
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.).
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, ...