Mark Reed-Bey v. George Pramstaller, et al

Filing

OPINION filed : AFFIRMED, pursuant to FRAP 34(a)(2)(C), decision not for publication. Martha Craig Daughtrey, Authoring Circuit Judge; Raymond M. Kethledge, Circuit Judge and Peter C. Economus, U.S. District Judge for the Northern District of Ohio, sitting by designation.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0239n.06
No. 13-2602
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

MARK ANTHONY REED-BEY,
Plaintiff-Appellant,
v.
GEORGE PRAMSTALLER; S. VADLAMUDI;
RICHARD D. RUSSELL; BUREAU OF HEALTH
CARE MICHIGAN DEPARTMENT OF
CORRECTIONS; CAROLYNN DUBUC;
MICHIGAN DEPARTMENT OF
CORRECTIONS; ANDREW JACKSON;
CORRECTIONAL MEDICAL SERVICES, INC.,
Defendants-Appellees,
and
JOHN DOE, et al.,
Defendants.

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FILED
Apr 02, 2015
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
MICHIGAN

Before: DAUGHTREY and KETHLEDGE, Circuit Judges; ECONOMUS, District Judge.*

DAUGHTREY, Circuit Judge. Mark Anthony Reed-Bey, a Michigan state prisoner
proceeding pro se, appeals a district court judgment dismissing his civil-rights complaint filed
pursuant to 42 U.S.C. § 1983 and moves for oral argument. This case has been referred to a
panel of the court pursuant to Federal Rule of Appellate Procedure 34(a)(2)(C), which permits us
*

The Honorable Peter C. Economus, United States District Judge for the Northern District of Ohio, sitting

by designation.

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-2to dispense with oral argument when we conclude that it would not significantly aid the decision.
Upon examination, we conclude that oral argument is not needed, and we deny Reed-Bey’s
motion in this regard. Fed. R. App. P. 34(a).
On September 12, 2005, Reed-Bey, while in the custody of the Michigan Department of
Corrections (MDOC), injured his shoulder during a prison basketball game. Reed-Bey was
examined at Detroit Receiving Hospital that evening by an emergency room physician who
noted that one of the bones in Reed-Bey’s shoulder was visibly out of place. Upon his return to
the prison facility, a nurse provided Reed-Bey with a seven-day prescription for Vicodin.
Almost three months later, on December 1, prison officials finally sent Reed-Bey to an
orthopedic specialist, who advised Reed-Bey that his shoulder required surgery. Prison officials
did not approve his shoulder surgery until sometime after March 2006.
In March 2006, Reed-Bey sued the MDOC; Correctional Medical Services, Inc. (CMS);
the Bureau of Health Care Services (the BHCS); Andrew Jackson, the MCF Warden; George
Pramstaller, former Chief Medical Officer for the MDOC; Richard Russell, former BHCS
Administrator; Carolynn DuBuc, the MDOC Region III Health Care Administrator; Nurses
Justina Nzums and Ruth Ingram; and Doctor Seetha Vadlamudi. Reed-Bey claimed that the
defendants violated his rights by denying and delaying medical treatment for his shoulder injury.
The district court sua sponte dismissed the complaint pursuant to the “total exhaustion rule.” We
vacated the district court’s judgment in light of Jones v. Bock, 549 U.S. 199 (2007). Reed-Bey v.
Pramstaller, No. 06-1812 (6th Cir. Apr. 25, 2007).
On remand, defendants CMS, the MDOC, Russell, Pramstaller, the BHCS, and
Vadlamudi moved for summary judgment. A magistrate judge filed a report recommending that
the district court grant these defendants’ motions and dismiss the complaint for failure to exhaust
administrative remedies because Reed-Bey failed to name any of them in his initial grievance.
Over Reed-Bey’s objections, the district court adopted the magistrate judge’s recommendation
and dismissed the complaint, after sua sponte dismissing Reed-Bey’s claims against defendants
DuBuc, Jackson, and Ingram under Federal Rule of Civil Procedure 12(h)(3). We again vacated
the district court’s judgment. Reed-Bey v. Pramstaller, 603 F.3d 322 (6th Cir. 2010).

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-3On remand, defendants CMS, Pramstaller, and Russell filed motions for summary
judgment, to which Reed-Bey responded. The district court granted summary judgment in favor
of these defendants, concluding, in part, that Reed-Bey (1) failed to identify a CMS policy or
custom that caused a deprivation of his rights and (2) failed to identify an MDOC policy or
custom subjecting Pramstaller and Russell to liability or that Pramstaller and Russell were
personally involved in his medical treatment.
Subsequently, defendants DuBuc, Jackson, and Vadlamudi moved for summary
judgment. The magistrate judge filed a report recommending that the district court: (1) deny
Vadlamudi’s request for summary judgment and permit Reed-Bey’s Eighth Amendment claim
against her to proceed to trial and (2) grant summary judgment in favor of defendants Jackson
and DuBuc because Jackson was not personally involved in Reed-Bey’s medical treatment and
DuBuc could not be held liable based solely on her response to Reed-Bey’s Step II grievance.
Reed-Bey sought additional time to file objections, alleging that he had not received a copy of
the report and recommendation. The district court denied Reed-Bey’s request, noting that the
proof of service indicated that the report was mailed to his correct address. The district court
also rejected Vadlamudi’s objections, denied her motion for summary judgment, and ordered that
Reed-Bey’s Eighth Amendment claim against her should proceed to trial on the issue of whether
she was liable for any delays and pain suffered by Reed-Bey in September and October 2005.
The district court denied Vadlamudi’s second motion for summary judgment because that motion
asserted the same issues previously rejected. We affirmed. Reed-Bey v. Pramstaller, No 122041 (6th Cir. July 8, 2013).
In March 2012, Reed-Bey moved for a default judgment against defendants Nzums and
Ingram, noting that the defendants had not responded to his complaint. The request was denied.
Subsequently, Reed-Bey again filed two motions for a default judgment against defendants
Nzums and Ingram. A magistrate judge filed a report concluding that default judgment was not
warranted because the defendants in question had never received the complaint, despite the
district court’s best attempts to have them served, and because there was no initial entry of

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-4default.

Over Reed-Bey’s objections, the district court adopted the magistrate judge’s

recommendation.
In July 2013, Reed-Bey filed a motion requesting the appointment of counsel, which the
district court granted. In October 2013, the district court issued a protective order permitting
Reed-Bey’s attorney to inspect certain documents listed in the order but directing that the
documents not be released to Reed-Bey.

Thereafter, the case proceeded to trial against

Vadlamudi. The jury returned a verdict in favor of Vadlamudi, and the district court entered a
final judgment.
On appeal, Reed-Bey argues that the district court erred when it denied him a fair
opportunity to litigate fully his Eighth Amendment claim, first, because it restricted the issues he
could present against Vadlamudi at trial to her involvement in “pain management” in September
and October 2005, thus prohibiting him from presenting evidence that she provided delayed
treatment and failed to ensure that he received adequate follow-up treatment after his surgery;
second, because it prevented him from objecting to the dismissal of defendants Jackson and
DuBuc; and third, because it denied him adequate discovery, which would have allowed him to
obtain information concerning a contract between CMS and the MDOC. He insists that the court
should have granted his motion for default judgment against Nzums and Ingram because he
provided the court with the defendants’ addresses and the United States Marshals Service failed
to effectuate service on them. He next claims that the court should not have granted summary
judgment in favor of CMS because it delayed his medical treatment by not timely responding to
requests from the prison medical staff and by failing to carry out its duty to provide medical
treatment to inmates and supervise prison medical staff, as required by its contract with the
MDOC. He contends that the court also erred in granting summary judgment to Pramstaller and
Russell because they were aware of his medical needs and failed to ensure that he received
adequate medical treatment. Finally, he faults the court for granting summary judgment to
DuBuc because she was involved in decisions concerning his medical treatment and failed to
resolve his grievance concerning his treatment.

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-5After careful review, we conclude that the district court did not err in determining what
issues Reed-Bey could present at trial, specifically by issuing the pre-trial order that prohibited
him from submitting to the jury the issue of whether he was denied adequate follow-up
treatment. We reach this conclusion because Reed-Bey did not allege any facts in his complaint
to indicate that Vadlamudi was responsible for delaying or denying him treatment following his
surgery.
Nor did the district court violate Reed-Bey’s rights with respect to the dismissal of
defendants Jackson and DuBuc. Reed-Bey argues that the district court erred when it denied his
motion for an extension of time to file objections to the magistrate judge’s February 2012 report
and recommendation with respect to the determination that defendants Jackson and DuBuc were
not personally involved in Reed-Bey’s medical care. Reed-Bey claims that an extension should
have been granted because he did not receive a copy of the report. However, as the district court
properly noted, the proof of service included in the magistrate judge’s report established that it
had been mailed to Reed-Bey’s correct address.
Finally, the district court did not violate Reed-Bey’s rights based on the allegation that
Reed-Bey was denied adequate discovery. Reed-Bey argues that, had he been granted adequate
discovery, he would have been able to obtain evidence concerning a contract between CMS and
the MDOC. Reed-Bey contends, for the first time on appeal, that he is a third-party beneficiary
to such a contract. However, because he did not present this issue in the district court, it is
forfeited, and we opt not to review it for the first time on appeal. See Vance v. Wade, 546 F.3d
774, 781 (6th Cir. 2008).
The district court properly denied Reed-Bey’s motion for default judgment against
defendants Nzums and Ingram pursuant to Federal Rule of Civil Procedure 55(b), because ReedBey failed first to obtain an entry of default pursuant to Federal Rule of Civil Procedure 55(a).
See, e.g.. O.J. Distrib., Inc. v. Hornell Brewing Co., 340 F.3d 345, 352-53 (6th Cir. 2003).
Nor did the district court err in dismissing Reed-Bey’s claims against Nzums and Ingram.
Under Federal Rule of Civil Procedure Rule 4(m), a plaintiff must serve the summons and
complaint upon each defendant within 120 days after the complaint is filed, unless the plaintiff

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-6demonstrates good cause for the failure. When a plaintiff is proceeding in forma pauperis, the
district court bears the responsibility for issuing the plaintiff’s process to a United States
Marshal, who must effect service upon the defendants once the plaintiff has properly identified
them. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3); Byrd v. Stone, 94 F.3d at 217, 219 (6th
Cir. 1996). Thus, failure by the Marshals Service to carry out their duties may constitute good
cause under Rule 4. See Byrd, 94 F.3d at 220. Nevertheless, an incarcerated plaintiff may not
shirk all responsibility for seeing that the Marshals Service fulfils its duty to effectuate service.
See id. Here, the record reflects that, after the district court ordered service of process on
defendants Nzums and Ingram, the waiver of service was returned unexecuted on four separate
occasions. There is nothing in the record to suggest that the plaintiff made an effort to discover
or provide additional information about the whereabouts of Nzums and Ingram. We therefore
cannot say that the dismissal was in error.
We also conclude that the district court properly granted summary judgment to
defendants CMS, Pramstaller, Russell, and DuBuc, based on de novo review. Dargie v. United
States, 742 F.3d 243, 245 (6th Cir. 2014). Summary judgment is appropriate “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). In order to prevail, the moving party must
demonstrate “the absence of a genuine issue of material fact as to at least one essential element
on each of Plaintiff’s claims,” at which point the non-moving party “must present sufficient
evidence from which a jury could reasonably find for him.” Jones v. Muskegon Cnty., 625 F.3d
935, 940 (6th Cir. 2010). The court must draw all inferences in favor of the non-moving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Reed-Bey alleged that CMS, a private corporation responsible for providing medical
services at Michigan prisons, denied or delayed his treatment for his shoulder separation.
However, a private corporation cannot be held liable under § 1983 on the basis of respondeat
superior or vicarious liability. See Street v. Corr. Corp. of Am., 102 F.3d 810, 818 (6th Cir.
1996). Rather, the plaintiff must establish a policy or custom that caused the constitutional
violation. Ford v. Cnty. of Grand Traverse, 535 F.3d 483, 495 (6th Cir. 2008). In this case,

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-7Reed-Bey failed to identify any CMS policy or custom that resulted in the denial or delay of his
medical treatment. Moreover, although Reed-Bey alleged that the prison medical staff acted on
behalf of CMS, CMS argued that those individuals were employees of the MDOC, not CMS.
Reed-Bey has presented no evidence to rebut CMS’s statement that prison staff are not employed
by CMS. Finally, CMS presented evidence that it responded in a timely manner to Vadlamudi’s
requests for a consultation with a specialist and for surgery, even though the approval of those
requests was delayed at times, pending Vadlamudi’s submission of additional information
concerning Reed-Bey’s condition.
The district court also properly granted summary judgment to defendants Pramstaller and
Russell.

Reed-Bey argued that these defendants were liable for the delay in his medical

treatment because they failed to act after being notified that he had been denied adequate medical
treatment. He claims that, although these defendants denied being aware of his situation, he filed
grievances and wrote a letter to the BHCS concerning his inadequate medical treatment, which
should have provided Pramstaller and Russell with knowledge of the nature of his complaints.
To establish personal liability under § 1983, it must be shown that the official acted to
“cause[] the deprivation of a [federal] right.” Kentucky v. Graham, 473 U.S. 159, 166 (1985);
see also Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (explaining that, because there is no
vicarious liability in § 1983 suits, a plaintiff must plead that each government defendant,
“through the official’s own individual actions, has violated the Constitution”). Reed-Bey did not
establish that Pramstaller and Russell were involved personally in either his medical care or the
decision-making process concerning his medical care. In addition, Pramstaller and Russell are
entitled to summary judgment on Reed-Bey’s official-capacity claims because he did not
establish that his medical treatment was denied or delayed based on an MDOC policy or custom.
See Leach v. Shelby Cnty. Sheriff, 891 F.2d 1241, 1245 (6th Cir. 1989).
Likewise, the district court properly granted summary judgment for defendant DuBuc.
Reed-Bey argues that DuBuc should be liable for the delay in his medical treatment because she
failed to resolve his complaints concerning his medical treatment during his Step II grievance.
But DuBuc was not involved personally in the decisions concerning his medical treatment, and

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-8“[t]he ‘denial of administrative grievances or the failure to act’ by prison officials does not
subject supervisors to liability under § 1983.” Grinter v. Knight, 532 F.3d 567, 576 (6th Cir.
2008) (quoting Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)).
For the reasons set out above, we AFFIRM the judgment of the district court.