Nelson v. Walsh et al

Filing 42

ORDER Overruling 41 Objections, Adopting 39 Report and Recommendation, Granting 22 Motion to Dismiss, Denying Plaintiff's 31 35 Motions, Withdrawing 13 Order of Reference, Granting 36 Motion for Summary Judgment, and Dismissing 1 Complaint. Signed by District Judge Thomas L. Ludington. (Sian, M)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
JOSHUA NELSON,
Plaintiff,
v.

Case No. 16-cv-10405
Honorable Thomas L. Ludington
Magistrate Judge Patricia T. Morris

LISA A. WALSH, et al
Defendant.
__________________________________________/
ORDER OVERRULING OBJECTIONS, ADOPTING REPORT AND
RECOMMENDATION, GRANTING MOTION TO DISMISS, DENYING PLAINTIFF’S
MOTIONS, WITHDRAWING ORDER OF REFERENCE, GRANTING MOTION FOR
SUMMARY JUDGMENT, AND DISMISSING COMPLAINT
Plaintiff Joshua Nelson filed a complaint on February 1, 2016, alleging that he was
mistreated while incarcerated in Macomb Correctional Facility because he is a gay, Jewish man.
ECF No. 1. He joins as Defendants three employees of the Macomb Correctional Facility: Lisa
Walsh,1 Janine LaCroix,2 and Jon Pavitt.3 Nelson filed an amended complaint on February 22,
2016. ECF No. 8. In that complaint, Nelson brings thirteen claims: Violation of Rape
Elimination Act, Denial of Equal Protection, First Amendment Retaliation, Denial of Access to
Courts, Eighth Amendment Violations, Violation of Free Exercise Clause, Violation of RLUIPA
and RFRA, Deliberate Indifference, Cruel and Unusual Punishment, Criminal Negligence,
Fraud, Declaratory Relief, and Injunctive Relief. The case was referred to Magistrate Judge
Elizabeth A. Stafford. ECF No. 13.

1

Nelson alleges that Walsh is the assistant resident unit supervisor.
According to Nelson, LaCroix is the business manager.
3
Nelson asserts that Pavitt is the acting dental service supervisor.
2

On April 22, 2016, Defendants LaCroix and Walsh filed a motion to dismiss. ECF No.
22. Several months later, Nelson filed a motion for entry of default judgment against Defendant
Pavitt. ECF No. 31. On August 29, 2016, Nelson filed a motion to amend the first count of his
amended complaint. ECF No. 35. Five weeks later, Pavitt filed a motion for summary judgment.
ECF No. 36.
Now, Judge Stafford has issued a report recommending that Walsh and LaCroix’s motion
to dismiss be granted and Nelson’s outstanding motions be denied. ECF No. 39. Nelson has filed
five objections to the report and recommendation. ECF No. 41. For the reasons stated below,
those objections will be overruled and the report and recommendation will be adopted.
I.
Nelson indicates that he does not object to Judge Stafford’s summary of the procedural
and factual history of the case. Accordingly, that summary is adopted and incorporated as if
recounted here in full. For clarity, a brief summary will be provided. Nelson alleges that because
he is gay, Walsh refused to separate him from a known, violent gang member with whom Nelson
was sharing a cell. According to Nelson, his cellmate had threatened to sexually abuse him, but
prison employees took no action when informed of the threat. Nelson asserts that Walsh refused
to accommodate his request for a transfer because she believed that Nelson wanted a homosexual
cellmate. Nelson further argues that Walsh transferred him to a facility that did not have a
kosher-meal program despite knowing that Nelson is Jewish. He believes this transfer was
retaliation for the grievances he filed against Walsh. Nelson alleges that Defendant LaCroix
denied him access to the courts because she gave Nelson a financial statement which
misrepresented the amount of funds in his trust account. Because of that misrepresentation, he
was unable to pay a court filing fee, and his suit was dismissed.

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II.
Pursuant to Federal Rule of Civil Procedure 72, a party may object to and seek review of
a magistrate judge’s report and recommendation. See Fed. R. Civ. P. 72(b)(2). Objections must
be stated with specificity. Thomas v. Arn, 474 U.S. 140, 151 (1985) (citation omitted). If
objections are made, “[t]he district judge must determine de novo any part of the magistrate
judge’s disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). De novo review
requires at least a review of the evidence before the magistrate judge; the Court may not act
solely on the basis of a magistrate judge’s report and recommendation. See Hill v. Duriron Co.,
656 F.2d 1208, 1215 (6th Cir. 1981). After reviewing the evidence, the Court is free to accept,
reject, or modify the findings or recommendations of the magistrate judge. See Lardie v. Birkett,
221 F. Supp. 2d 806, 807 (E.D. Mich. 2002).
Only those objections that are specific are entitled to a de novo review under the statute.
Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). “The parties have the duty to pinpoint those
portions of the magistrate’s report that the district court must specially consider.” Id. (internal
quotation marks and citation omitted). A general objection, or one that merely restates the
arguments previously presented, does not sufficiently identify alleged errors on the part of the
magistrate judge. See VanDiver v. Martin, 304 F. Supp. 2d 934, 937 (E.D. Mich. 2004). An
“objection” that does nothing more than disagree with a magistrate judge’s determination,
“without explaining the source of the error,” is not considered a valid objection. Howard v. Sec’y
of Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). Without specific objections,
“[t]he functions of the district court are effectively duplicated as both the magistrate and the
district court perform identical tasks. This duplication of time and effort wastes judicial resources
rather than saving them, and runs contrary to the purposes of the Magistrate’s Act.” Id.

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III.
Nelson has five objections to Judge Stafford’s report and recommendation. First, Nelson
objects to Judge Stafford’s articulation of his claims. Second, he asserts that he exhausted all
claims. Third, Nelson challenges the sufficiency of the affidavits which Walsh and LaCroix
submitted. Fourth, Nelson asserts that LaCroix was personally involved in the mistreatment he
suffered. Fifth, Nelson argues that the Defendants are not entitled to qualified immunity.
A.
In his first objection, Nelson argues: “The Magistrate improperly interprets the complaint
and amended complaint to indicate that she was in fact the claim under 42 USC 1985 makes a
single reference to make only one allegation.” Objs. at 1, ECF No. 41. Nelson further clarifies
his objection: Walsh and two non-defendants were engaged in a conspiracy to transfer Nelson to
a facility without a kosher-meal program in retaliation for the grievances he filed.
After careful consideration of Nelson’s first objection, the Court is unable to determine
which portion of the report and recommendation Nelson is challenging. To the extent the first
objection is meant to correct factual misunderstandings made by Judge Stafford, the Court is
unable to find any material contradictions between the facts as articulated in Judge Stafford’s
report and recommendation and the allegations in the first objection. To the extent Nelson is
attempting to bring a conspiracy claim, that effort is futile because Nelson has not named or
sought leave to name two of the alleged members of the conspiracy as defendants. To the extent
Nelson is challenging Judge Stafford’s resolution of his claim under the Prison Rape Elimination
Act, he does not dispute that the PREA does not provide a private cause of action. Nelson’s first
objection will be overruled because it does not specifically challenge a portion of Judge
Stafford’s report or pinpoint an error.

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B.
In his second objection, Nelson asserts that all claims against each Defendant were
exhausted prior to bringing suit. Judge Stafford found that one of Nelson’s grievances, MRF-1503-0426-01z, had only been exhausted in part. Rep. & Rec. at 10. Explaining that “Nelson’s
grievance did not address the alleged misrepresentation of his account statement,” Judge Stafford
concluded that Nelson did not “exhaust his claim that LaCroix provided him with an inaccurate
prisoner account statement.” Id. She also explained that, even if the claim had been exhausted,
the misrepresentation he alleges does not “implicate the ‘access to the courts’ jurisprudence,
which prohibits prison officials ‘from actively interfering with inmates’ attempts to prepare legal
documents.” Id. (quoting Lewis v. Casey, 518 U.S. 343, 350 (1996). In his objection, Nelson
does not provide any information which would indicate that he actually did exhaust this
grievance. He points to other claims which Defendants and Judge Stafford agreed had been
exhausted, but does not identify any errors in Judge Stafford’s conclusion that his account
misrepresentation claim was not exhausted. Even if it had been, Nelson has provided no nonconclusory allegations that the misrepresentation LaCroix made was intentional or made with the
purpose of preventing him from accessing the courts. Lewis prohibits only active interference
with a defendant’s access to court, and Nelson’s allegations fall short of showing interference of
that nature. 518 U.S. at 350.
C.
Third, Nelson objects to Judge Stafford’s reliance on the affidavits which Walsh and
LaCroix submitted. Specifically, Nelson asserts that the affidavits were not made under penalty
of perjury and that Sixth Circuit law thus prohibits reliance upon them. In footnote seven, Judge
Stafford addressed this argument and concluded that, because the affidavits were sworn and

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notarized, they could be relied upon. Rep. & Rec. at 13 n.7. In his objection, Nelson cites to
Harris v. J.B. Robinson Jewelers, 627 F.3d 235, 239 n.1 (6th Cir. 2010). In that footnote, the
Sixth Circuit rejected a report, explaining: “The report is not sworn, nor is it made under penalty
of perjury. Accordingly, it cannot be considered on summary judgment.” Id. Here, Walsh’s and
LaCroix’s affidavits were sworn. Judge Stafford did not err by relying on the affidavits because
Harris states that sworn affidavits can be considered even if not made under penalty of perjury.
D.
In the fourth objection, Nelson states that the “Magistrate Judge incorrectly determined
that Defendant LaCroix was not personally involved within the allegations in the complaint.”
Objs. at 3. He asserts that a genuine issue of fact exists on this issue because both Nelson and
LaCroix have submitted contradictory affidavits. Id. But Judge Stafford considered both
affidavits. She stated that Nelson’s affidavit “provides no details whatsoever about [his
conversation with LaCroix], and specifically nothing to rebut her assertion that she had no
personal involvement in the transaction at issue.” Rep. & Rec. at 16. Thus, Judge Stafford
explicitly considered both affidavits and concluded that the discrepancy between them did not
demonstrate a genuine issue of fact. Nelson provides no new information which would cast
doubt on that conclusion. Accordingly, his fourth objection will be overruled.
E.
Finally, Nelson argues that Judge Stafford improperly concluded that the “defendants are
entitled to Qualified Immunity at this time.” Objs. at 4. He argues that: “They are not entitled to
this as there still exists an issue of material fact in controversy.” Id. However, Nelson’s claim
that his affidavit demonstrates a genuine issue of fact as to LaCroix’s personal involvement has
been rejected. Likewise, Nelson has not objected to Judge Stafford’s conclusion that he has

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presented “insufficient evidence that Walsh was personally involved or responsible for his
transfer to a prison that did not provide kosher food.” Because Nelson has not provided sufficient
evidence that the named Defendants violated his constitutional rights, they are entitled to
qualified immunity. Nelson’s fifth objection will be overruled.
IV.
On June 27, 2016, a waiver of service for Defendant Pavitt was filed on the docket. ECF
No. 30. Pursuant to that waiver, Pavitt’s answer to the complaint was due by August 16, 2016.
On July 26, 2016, Nelson filed a motion for default judgment against Defendant Pavitt. ECF No.
31. Because, at the time that motion was filed, Pavitt was still within the time to file a response,
the motion for default judgment was untimely. Judge Stafford later granted Pavitt an enlargement
of time to file a responsive pleading. ECF No. 34. On October 5, 2016, two days before the
deadline, Pavitt filed a motion for summary judgment. Because Pavitt filed a responsive motion
within the time provided after signing a waiver of service (and for the reasons stated in Judge
Stafford’s report and recommendation), Nelson’s motion for default judgment against Pavitt will
be denied.
Judge Stafford’s report and recommendation does not address Pavitt’s outstanding
motion for summary judgment. In the interest of comprehensively addressing all pending
motions, the order of reference will be withdrawn and that motion will be considered in the first
instance. For the reasons stated below, Pavitt’s motion for summary judgment will be granted.
A.
A motion for summary judgment should be granted 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). The moving party has the initial burden of identifying where to look

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in the record for evidence “which it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the
opposing party who must set out specific facts showing “a genuine issue for trial.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (citation omitted). The Court must view the
evidence and draw all reasonable inferences in favor of the non-movant and determine “whether
the evidence presents a sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.” Id. at 251–52.
B.
Nelson’s amended complaint advances allegations regarding Pavitt in Count V, VIII, XI,
XII, and XIII. Nelson alleges that he “sought to have his teeth cleaned on or about August 7,
2015. This was denied by Pavitt, despite his being fully-advised that the Plaintiff is chronicallyill.” Am. Compl. at ¶ 68, ECF No. 8. Nelson also asserts that Pavitt “did process and lodge a copay for dental services. This amount $5.00 was processed and debited to the trust account of the
Plaintiff. The Plaintiff did not receive any services.” Id. at ¶ 83.
C.
In Claims VI and VIII, Nelson asserts an Eighth Amendment deliberate indifference
claim against Pavitt. By its terms, the Eighth Amendment prohibits the imposition of any cruel
and unusual punishment. At the time of its adoption, “cruel and unusual punishment” included
draconian punishments such as the rack, thumbscrews, “tortures[,] and other barbarous methods
of punishment.” Gregg v. Georgia, 428 U.S. 153, 170 (1976) (internal citations omitted). Since
then, Eighth Amendment jurisprudence has not remained static, but instead has been subject to
“the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles,
356 U.S. 86, 100 (1958). Under this evolving standard, the Supreme Court has recognized the

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requirement that prison officials “provide medical care for those whom it is punishing by
incarceration,” and a prohibition against deliberate indifference to a prisoner’s serious medical
needs. Estelle v. Gamble, 429 U.S. 97, 103-04 (1976). This includes a prohibition against
deliberate indifference to a prisoner’s serious medical needs, meaning the “unnecessary and
wanton infliction of pain.” Id. at 104 (internal quotations and citation and omitted).
To demonstrate a claim of deliberate indifference, a plaintiff must meet an objective
component and a subjective component. Farmer v. Brennan, 511 U.S. 825, 837 (1994). First, he
must show that he has an objectively “sufficiently serious” medical need. Blackmore v.
Kalamazoo Cnty., 390 F.3d 890, 895 (6th Cir. 2004) (quoting Farmer, 511 U.S. at 834). Second,
he must show that the prison official subjectively had a “sufficiently culpable state of mind.” Id.
(quoting Farmer, 511 U.S. at 834).
The second element requires a plaintiff to show more than “mere negligence.” Watkins v.
City of Battle Creek, 273 F.3d 682, 686 (6th Cir. 2001). Instead, a plaintiff must show the
“equivalent of recklessly disregarding [a substantial risk of serious harm to a prisoner].”
Dominguez v. Corr. Med. Servs., 555 F.3d 543, 550 (6th Cir. 2009). Where “a prisoner has
received some medical attention and the dispute is over the adequacy of the treatment, federal
courts are generally reluctant to second guess medical judgments and to constitutionalize claims
that sound in state tort law.” Graham ex rel. Estate of Graham v. County of Washtenaw, 358 F.3d
377, 385 (6th Cir. 2004). It is only “[w]hen prison officials are aware of a prisoner’s obvious and
serious need for medical treatment and delay medical treatment of that condition for non-medical
reasons, [that] their conduct in causing the delay” violates the Eighth Amendment. Blackmore,
390 F.3d at 899.

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Generally speaking, “[c]omplaints of malpractice or allegations of negligence are
insufficient to entitle a plaintiff to relief.” Carpenter v. Wilkinson, 205 F.3d 1339 (6th Cir. 2000).
If “the seriousness of a prisoner’s needs for medical care is obvious even to a lay person,” then
the medical condition is sufficiently serious to become constitutionally cognizable. Blackmore,
390 F.3d at 899. “[R]outine preventative dental care does not constitute a serious medical need.”
Howell v. Reams, No. CIV.A. 14-206-DLB, 2015 WL 1951940, at *4 (E.D. Ky. Apr. 29, 2015).
See also Sanders v. Prison Health Servs., Inc., No. 2:10-CV-12846, 2013 WL 878747, at *5
(E.D. Mich. Jan. 29, 2013) (same); Dennis v. Heyns, No. 1:15-CV-87, 2015 WL 1211592, at *2
(W.D. Mich. Mar. 17, 2015) (“The denial of routine medical care for 24 months, in and of itself,
does not create a condition posing a substantial risk of serious harm.”).
In his response to Pavitt’s motion for summary judgment, Nelson argues that Pavitt’s
refusal to provide a dental examination constituted deliberate indifference because Nelson
suffers from several chronic illnesses: “(1) coronary artery disease; (2) protein-c deficiency of
blood; (3) previous CVA or ischemic stroke; (5) [sic] hyperactive thyroid; (6) irregular
heartbeat.” Resp. at 2, ECF No. 37. Nelson asserts that he “has been advised by treating
physicians of the necessity to maintain dental hygiene to reduce his risk of potential shortening
of life expectancy and increase of any additional complications due to lack of dental hygiene.”
Id. at 5.
Even if Nelson’s representation regarding the importance of maintaining dental hygiene
is true, he has not alleged, much less provided evidence, that he experienced any health problems
as a result of Pavitt’s refusal to conduct a routine dental examination. Nelson might be more
prone to complications from poor dental hygiene because of his chronic health issues, but he
provides no indication that he actually suffered any complications as a result of Pavitt’s denial.

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Absent some showing that the denial resulted in a physical injury to Nelson, he has not
demonstrated that he was suffering from a serious medical condition. His assertion that the
denial might have created “long-term health complication [sic] and shortened life-span due [to]
exposure to excessive bacteria” is too speculative to constitute a serious medical condition.
Nelson’s deliberate indifference claim will be dismissed.
Nelson also brings a fraud claim against Pavitt. This claim arises out of state common
law. Because all of Nelson’s federal claims will be dismissed, there is no remaining federal
nexus in this case. When a plaintiff’s federal claims have been dismissed on the merits, the
question of whether to retain jurisdiction over any state law claims rests within the court’s
discretion. Blakely v. United States, 276 F.3d 853, 860 (6th Cir. 2002). Nelson’s fraud claim
against Pavitt would be better resolved in state court. Accordingly, it will be dismissed without
prejudice. Nelson is free to reassert the claim in state court.
V.
Accordingly, it is ORDERED that Plaintiff Nelson’s Objections, ECF No. 41, are
OVERRULED.
It is further ORDERED that Judge Stafford’s Report and Recommendation, ECF No. 39,
is ADOPTED.
It is further ORDERED that Defendant LaCroix’s and Walsh’s Motion to Dismiss, ECF
No. 22, is GRANTED.
It is further ORDERED that Plaintiff Nelson’s Motion for Entry of Default Judgment
and Motion to Amend, ECF No. 31, 35, are DENIED as moot.
It is further ORDERED that the Order of Reference, ECF No. 13, is WITHDRAWN.

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It is further ORDERED that Defendant Pavitt’s Motion for Summary Judgment, ECF
No. 36, is GRANTED.
It is further ORDERED that Counts One, Two, Three, Four, Five, Six, Seven, Eight,
Nine, Ten, Twelve, and Thirteen are DISMISSED with prejudice.
It is further ORDERED that Count Eleven is DISMISSED without prejudice.

Dated: March 24, 2017

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on March 24, 2017.
s/Michael A. Sian
MICHAEL A. SIAN, Case Manager

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