Lashuay v. Delilne et al

Filing 126

ORDER Adopting in Part 120 Report and Recommendation, Overruling Plaintiff's 122 Objections, Sustaining Defendants' 121 Objections, Granting Defendants' 90 , 92 Motion for Summary Judgment, and Dismissing 65 Second Amended Complaint. Signed by District Judge Thomas L. Ludington. (KWin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
KEN LASHUAY, Individually
and as a Personal Representative
of the Estate of David Lashuay
Plaintiff,
v.

Case No. 17-cv-13581
District Judge Thomas L. Ludington
Magistrate Judge Patricia T. Morris

RN LORRAINE VANBERGEN, et al,
Defendants.
_______________________________________/
ORDER ADOPTING IN PART REPORT AND RECOMMENDATION, OVERRULING
PLAINTIFF’S OBJECTIONS, SUSTAINING DEFENDANTS’ OBJECTIONS,
GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, AND
DISMISSING SECOND AMENDED COMPLAINT
On November 1, 2017, Plaintiff David Lashuay filed a complaint against a variety of
medical staff and medical providers alleging that they were deliberately indifferent to his medical
needs while he was incarcerated by the Michigan Department of Corrections.1 ECF No. 1. On
November 10, 2017, and before any Defendants were served, Lashuay filed an amended complaint
which made minor factual clarifications and corrected several clerical errors. ECF No. 4. On April
27, 2018, Lashuay filed a second amended complaint after receiving leave to do so. ECF No. 65.
The next week, all pretrial matters were referred to Magistrate Judge Patricia Morris. ECF
No. 68. Defendants filed motions for summary judgment the next year. ECF Nos. 90, 92.
Magistrate Judge Morris issued a report recommending that the motions be granted in part and

1

Lashuay died in April 2019. His father, Ken Lashuay, was appointed the personal representative for his estates and
was substituted as Plaintiff in this action on September 11, 2019. ECF Nos. 108, 109.

denied in part. ECF No. 120. Specifically, she recommended that Plaintiff’s claims against
Defendants Trout, Zeigler, Borgerding, Sigler, Vanbergen, Klee, Dunning-Meyers, DeLine,
Whiteman, Hill, and Larson be dismissed. She further recommended that all claims against
Defendants Papendick and Rais be dismissed except for Plaintiff’s claim that Papendick and Rick
violated his Eighth Amendment rights by failing to arrange his surgery. Excluding these claims
against Papendick and Rick, she recommended that Defendants’ motions for summary judgment,
ECF Nos. 90 and 92, be granted.
Defendants Papendick and Rais filed objections to Magistrate Judge Morris’s report. ECF
No. 121. Plaintiff also filed objections to the report, contending that Magistrate Judge Morris erred
in dismissing his claims that Defendants Larson, Hill, and Rais had violated his Eighth
Amendment rights by reducing his pain medications. ECF No. 122. None of the parties objected
to Magistrate Judge Morris’s recommendation that Plaintiff’s claims against Defendants
Vanbergen, Zeigler, Dunning-Meyers, Bogerding, Sigler, DeLine, Trout, Klee, and Whiteman be
dismissed. Accordingly, Plaintiff’s claims against those defendants will be dismissed.
I.
A.
Neither party has objected to Magistrate Judge Morris’s summary of the facts, which
provides:
Plaintiff was admitted to the Hurley Medical Center on July 19, 2014, after
suffering burns on up to 49 percent of his body in a meth lab explosion. (ECF No.
90, PageID.1491; ECF No. 112, PageID.2917.) He remained at Hurley for three
months, during which time he was placed in a medically induced coma for six
weeks and received “extensive skin grafting.” (ECF No. 98, PageID.2528.)
Roughly three months later, on October 16, 2014, Plaintiff was transferred to the
Otsego County Sheriff’s Office. (ECF No. 92, PageID.2000.) The following day,
he entered Duane Waters Hospital (DWH), run by the MDOC. (ECF No. 98,
PageID.2527.)

-2 

*****
Nurse Hill was Plaintiff’s “primary provider” at DHW, a role she characterized as
focusing on “infection control, wound care, and pain management.” (ECF No. 112,
PageID.3000.) She explained that a patient’s treatment plan would be revised as
needed during visits with the patient, and changes to it were marked in session notes
in the “assessment plan areas.” (ECF No. 112, PageID.3002.) Changes could be
made by “[w]however [sic] is seeing the patient that day . . . . So we revise the plan
every time we see the patient.” (ECF No. 112, PageID.3003.) There was no longerterm plan. (Id.) Similarly, in his deposition, Defendant Dr. Muhammad Rais
testified that any physician could come to a pain management plan once they made
a diagnosis and assessed the pain. (ECF No. 92, PageID.2197.) During Hill’s
deposition, she testified that she had treated patients with superficial burns, but
never anyone with burns as extensive as Plaintiff’s and that while she had no special
training for burn wounds, she did use a leading reference resource as a guide. (ECF
No. 112, PageID.2974, 3000.)
Hill testified at length about Plaintiff’s wound-care regimen. Regarding Plaintiff’s
bandaging, Hill noted that he did not initially want bandages, which caused pain on
the open wounds; according to Hill, he never complained to her about any lack of
bandaging and she tried multiple other methods (such as meshing) to cover his
wounds. (ECF No. 112, PageID.3007, 3009-3011.) She also ordered fresh linens
daily. (ECF No. 112, PageID.3009.) When they discovered that his mirror for
seeing where to apply ointment was missing, they got him another one. (ECF No.
112, PageID.3007-3008.) While the wounds would open in new places, overall the
openings and discharges decreased over time. (ECF No. 112, PageID.3013-3014.)
Also, during his time at DWH, the nurses completed a patient care flowsheet to
record two check-ups each day measuring things like ambulation, pain levels, social
activity, and functional level. (ECF No. 90, PageID.1569-1620.)
Regarding medications, when Plaintiff arrived from Hurley, he took, among other
things, methadone (3 tablets every 8 hours), morphine (2 tablets every 3 hours), and
gabapentin (Neurontin) (2 tablets every 8 hours). (ECF No. 112, PageID.2920.)
DWH kept him on that regimen initially, and he was given other medications such
as bacitracin. (ECF No. 112, PageID.2923.) In October, Danielle Alford, PA,
switched his methadone for one 60mg tablet of MS Contin. (ECF No. 112,
PageID.2925.) Hill testified that DWH does not regularly prescribe methadone and
therefore she tried early on to switch to an equivalent dose of morphine. (ECF No.
112, PageID.3004-3005.) She noted that there were risks with every narcotic like
methadone, but she could not think of anything specific. (Id.) A doctor at the
facility, Defendant Dr. Terrence Whiteman, testified that methadone was “not a
good drug for analgesia,” so the hospital used a superior drug; specifically,
methadone’s residual effects outlasted its period of effectiveness, remaining in the
bloodstream well after it wore off and leading to potential repercussions such as
respiratory depression. (ECF No. 92, PageID.2225-2226.) He also observed that
Plaintiff was a substance abuser. (ECF No. 92, PageID.2226.) Defendant Dr.
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William Borgerding, who had been the chief medical officer or assistant chief
medical officer during the relevant period, testified that “long-term narcotics are
really not recommended for anything,” they were “highly addictive,” and “there’s
really not a lot of studies that show their benefit,” so “the idea is to get them off
sooner than later.” (ECF No. 112, PageID.2909.)
Later in October, Nurse Jennifer Weirman added one 15mg tab of MS Contin every
8 hours so that Plaintiff would now be receiving 75mg total. (ECF No. 112,
PageID.2927.) She also took his dosage of gabapentin from 100mg (which was
giving him “200mg PO Q8hrs”) to 400mg (which gave him “2 tabs PO Q8hrs”).
(Id.) In November, Hill upped the gabapentin (Neurontin) to 3 tabs of 400mg every
8 hours, giving him 3600mg each day. (ECF No. 112, PageID.2929.) Later that
month, Hill reordered the medications (including morphine at 30mg every 4 hours).
(ECF No. 112, PageID.2931.) These dosages stayed the same the following month,
and Hill added amitriptyline (25mg at bedtime) for pain. (ECF No. 112,
PageID.2932; ECF No. 98, PageID.2603.)
In January 2015, Hill renewed his medications in the same dosages, including MS
Contin, bacitracin, and morphine, among others. (ECF No. 98, PageID.2592.) At
her deposition, Hill was asked why she discontinued applying Aquacel AG to
weeping wounds on January 19, 2015, and why her notes on that day stated Plaintiff
had to remove scabbing and apply bacitracin ointment to open areas. (ECF No. 112,
PageID.3149-3150; ECF No. 90, PageID.1169.) Hill said the Aquacel wasn’t
working and that Hurley (which Plaintiff had recently seen for a follow-up,
discussed below) wanted the scabs removed. (ECF No. 9 112, PageID.3049-3050.)2
On the same day, Hill added amitriptyline for neuropathic pain. (ECF No. 90,
PageID.1169; ECF No. 92, PageID.2199.)
Around the same time, she submitted a request that Defendant Dr. Keith Papendick
approved for continued physical therapy. (ECF No. 98, PageID.2593-2594.) Hill
had also been prescribing the maximum dosage of Neurontin (gabapentin). (ECF
No. 98, PageID.2603.) The medication order for February kept his medications
steady but increased the Amitriptyline to 50mg at bedtime. (ECF No. 112,
PageID.2934.)
Hill ordered same roster of medications and dosages again in March. (ECF No. 112,
PageID.2935.) The same month, Plaintiff was “in good spirits,” with “[n]o new
complaints” and normal vital signs due to the “addition of new medication.” (ECF
No. 98, PageID.2612.) According to the notes, Plaintiff’s pain had “been stable for
months.” (ECF No. 98, PageID.2613.) Hill kept the medications the same in April
and submitted another request for continued physical therapy, which was approved.
(ECF No. 112, PageID.2936; ECF No. 98, PageID.2617-2618.)

5

Although she could not recall at the deposition a specific request by Hurley to discontinue the Aquacel, her
progress notes from February 23, 2015 stated that Plaintiff “[r]elates that he has been instructed to remove all scab
areas and apply bacitracin until these wounds are healed per Hurley Burn Center.” (ECF No. 98, PageID.2602.)

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In May, Hill continued Plaintiff’s current medications and dosages. (ECF No. 112,
PageID.2937) He was doing well that month, according to Hill’s report, and the
pain control was “[a]dequate.” (ECF No. 98, PageID.2623-2624.) The following
month she took Plaintiff off of MS Contin and reduced his morphine from a 30 mg
tablet every four hours to one every six hours. (ECF No. 98, PageID.2630.) In June,
too, she submitted requests (that were ultimately approved by Dr. Papendick) for
refitting of his Jobskin burn stockings and for continued physical therapy. (ECF
No. 98, PageID.2635-2638.)
More generally, at her deposition Hill could not recall that Plaintiff frequently
requested additional pain medication, and she explained that she added several on
her own, including Neurontin and morphine. (ECF No. 112, PageID.3062.) The
hospital’s goal was to get patients functioning again, so she measured Plaintiff’s
pain in part based on whether he could independently complete daily activities.
(ECF No. 112, PageID.3063.) This, along with vital signs and other indications,
provided objective signs by which to judge subjective complaints of pain. (ECF No.
112, PageID.3063-3064.) Dr. Whiteman similarly testified that the effectiveness of
pain medications was gauged by objective observations, such as the appearance of
discomfort and the patients’ functional capacities. (ECF No. 92, PageID.22272228.)
In addition to these treatments, additional procedures on Plaintiff’s burns were
being considered. Plaintiff had a checkup at Hurley in December 2014. (ECF No.
98, PageID.2586-2587.) Hill testified that she sent the request to have him
examined at Hurley. (ECF No. 112, PageID.3016.) At the time, he had been
improving and she likely called Hurley to see if they wanted him back for a follow
up. (ECF No. 112, PageID.3019-3020.) At Hurley, Dr. Stephen Morris noted that
Plaintiff had “some scattered residual unhealed areas,” no signs of infection, leftelbow and anterior neck contractures, some difficulty extending his neck, and
webbing between two fingers on his right hand, and that the grafting in his neck
had healed well. (ECF No. 98, PageID.2586.) Plaintiff testified that Dr. Morris
reacted to seeing him by “throwing his hands in the air and said I don’t know what
we did anything for because my condition was so poor that he was disgusted that
he put all his effort into fixing me . . . .” (ECF No. 112, PageID.3213)
After examining Plaintiff, Dr. Morris wrote out his recommendations to DWH
medical officials:
[R]ecommending redo skin grafts on the left side of the neck, the
left shoulder, the scattered areas in the right shoulder, and the
anterior chest. It is also recommended that he undergo daily hand
therapy and physical therapy. At some point in the future months,
he will benefit from a contracture release and regrafting. Quite likely
it would be useful to use Integra on these. However, this should wait
until all of the small residual open areas are healed.

-5 

(ECF No. 98, PageID.2586; see also ECF No. 113, PageID.3571 (handwritten note
from Dr. Morris containing these recommendations).) A skin graft “adds an element
to grant the skin together,” whereas the contracture “cuts the bonds of the skin.”
(ECF No. 112, PageID.3132.) Dr. Morris also noted that the message to prison
officials informed them that it was
up to the prison system to determine where he gets care and we
would not undertake this at Hurley unless we had written
authorization for surgery and approval for however, long a stay was
necessary which in his situation could be as long as 30 days.
Particularly in contracture releases, if Integra is used it would be
pointless for him to go back to the prison system or it would simply
fail. However systemically he is not particularly ill.
(ECF No. 98, PageID.2586.) At Plaintiff’s deposition, he said that Dr. Morris’s
recommendation was for immediate surgery. (ECF No. 112, PageID.3213.) Hill
said she didn’t see the documentation from his visit until sometime in January 2015.
(ECF No. 112, PageID.3028, 3033-3034.) Her notes from that month stated that
she finally received the paperwork and that it said Hurley would do the skin grafts
if he could stay there until he healed. (ECF No. 90, PageID.1170.) Hill interpreted
the notes from Hurley as indicating that all procedures—regrafting and contracture
release—should wait until his open areas healed. (ECF No. 112, PageID.30373038.)
On June 5, 2015, Hill placed a “407”—DWH’s term for many types of medical
requests, (ECF No. 112, PageID.2990)—for the contracture release and regrafting
mentioned in the Hurley notes. (ECF No. 90, PageID.815; ECF No. 98,
PageID.2631; ECF No. 112, PageID.3043-3044.) On the same record reporting the
407 request, Hill wrote that “[p]ain medications will begin to be weaned now as
[Plaintiff] is functioning well at this time. He regularly goes out for out time and
ambulates,” was able independently to do all activities of daily living, and
participated in physical therapy. (ECF No. 90, PageID.815.)
A few days later, on June 9, 2015, Dr. Papendick responded to Hill’s request. (ECF
No. 98, PageID.2633.) During the relevant period, Dr. Papendick served as the
utilization medical director, which meant he reviewed the 407 requests submitted
by medical providers and formulated alternative treatment plans if necessary; he
did not see patients and never saw Plaintiff, nor did he have responsibility for pain
management. (ECF No. 92, PageID.2149-2152, 2159, 2980.) In determining
whether to approve a 407 request, cost was never a factor, Dr. Papendick testified.
(ECF No. 92, PageID.2152, 2157-2159.)
Regarding Hill’s request for the procedures, Dr. Papendick stated that “[m]edical
necessity not determined.” (ECF No. 98, PageID.2634.) Instead, he proposed an
alternative plan “to find a surgeon locally who could manage his case.” (ECF No.
92, PageID.2152.) Therefore, he rejected the request and instead directed that
-6 

another surgeon be found. (ECF No. 98, PageID.2634.) The problem with sending
him to Hurley, Dr. Papendick testified, was the 30 days he might need to remain
there, raising concerns about public security. (ECF No. 92, PageID.2152, 2156.)
Ultimately, Dr. Papendick testified, security concerns did not dictate the plan if the
patient needed care, but the preference was for treatment at one of the two secure
units in Michigan, Allegiance and McLaren, or at a local option where Plaintiff
could be returned to DWH for recovery post-surgery. (ECF No. 92, PageID.21522153.)6 However, if Plaintiff could not get medically necessary treatment at these
alternative locations, Dr. Papendick would have approved a request to send him to
Hurley—but no such request was ever made, he testified. (ECF No. 92,
PageID.2157-2158.)
While the alternative plan was being formed, Plaintiff was transferred from DWH
to the “C-Unit” on July 7, 2015, which was a “step down” facility, meaning “they
were stable for [DWH] . . . . [and] they have a [medication] taper and then we
continue that taper.” (ECF No. 98, PageID.2645; ECF No. 92, PageID.2199-2200;
see also ECF No. 92, PageID.2233 (Dr. Whiteman’s testimony that the C-Unit
“[p]rovides care for low security risk patients that [sic] can’t be cared for in the
general population and don’t require infirmary level care”).) Defendant Dr. Lynn
Larson signed off on the move. (ECF No. 98, PageID.2649.) She testified that she
saw Plaintiff twice, once on June 25, 2015 and once on July 7, 2015. (ECF No. 112,
PageID.3091.)7 On the first occasion, she noted webbing, restricted motion, a
clawed right hand, and that his urine stream was weakened and “hesitancy—on
Flomax.” (ECF No. 90, PageID.757.) Dr. Larson believed that despite the restricted
movements and clawed hand, his function was not limited because he could still
complete daily activities such as dressing himself, bathing himself, and moving
independently. (ECF No. 112, PageID.3162-3163.)
According to Dr. Larson, Plaintiff’s urinary problems might have been due to his
amitriptyline medication (an antidepressant sometimes used for pain relief), which
she reduced and later stopped upon his transfer, explaining that this medication can
affect the urinary system. (ECF No. 90, PageID.758; ECF No. 112, PageID.3074,
3153-3154.) Benadryl was another possible cause of the urinary issues, so she
stopped that medication as well, explaining that even though Plaintiff was taking
medication specifically for the urinary problems (Flomax) he was still struggling
with this issue and “the best thing to do in this situation is to remove the offending
components to it, and then solve the problem.” (ECF No. 112, PageID.3158.) Asked
if she was concerned that discontinuing these medications might increase his pain,
she responded that “when I stop medications, I review it with the patient as well”
and monitor the pain level; here, for example, she decreased the amitriptyline but

6

He testified that he had experience with burn victims, but not extensively and he had not officially treated anyone
with severe burns. (ECF No. 92, PageID.2147.)
7
Dr. Larson testified that she was “not a burn expert” and had not “read the recent literature on burns.” (ECF No.
112, PageID.3137.)

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“the pain didn’t dramatically increase . . . . So it was a trial. I didn’t just stop it cold
turkey.” (ECF No. 112, PageID.3158-3159.)8
At the June visit, she continued the MS Contin prescription writing “taper as able,”
and morphine for breakthrough pain, and increased Neurontin due to nerve pain.
(ECF No.  90, PageID.758; ECF No. 112, PageID.3074, 3143, 3145-3146.)9 She
made more changes at the July appointment. (ECF No. 112, PageID.3076.)
Gabapentin (Neurontin) was reduced from three 400mg tablets every 8 hours to two
tablets; MS Contin was reduced from one 60mg tablet every 8 hours to one 60mg
tablet every 12 hours; morphine went from one 30mg tab every 6 hours to one 15mg
tab every 8 hours; and lidocaine and amitriptyline were discontinued. (ECF No.
112, PageID.3076.)
Tapering off narcotics was “optimal,” Dr. Larson testified, and the hospital would
“give enough narcotics so that the patient can care for themselves and be
functional.” (ECF No. 112, PageID.3143-3145.) To taper, they would reduce the
narcotic “and see how he does functionally.” (ECF No. 112, PageID.3145.)
Plaintiff’s “pain was managed quite well” both times Dr. Larson examined him.
(ECF No. 112, PageID.3144.) Dr. Larson also recalled at her deposition that when
she saw him, Plaintiff could care for himself and just needed help applying the
bacitracin to his back. (ECF No. 112, PageID.3136.)
In the C-Unit transfer paperwork, Dr. Larson indicated that Plaintiff’s elbows were
“flexing,” but that physical therapy was helping; his neck was webbed and had
restricted range of motion; and his right hand was clawed, such that he could not
fully open it. (ECF No. 98, PageID.2649.) The record also reports that DWH had
provided Plaintiff, per Hurley’s recommendations, with burn gloves and a second
skin vest, and that Plaintiff’s pain was stable with his current medications and he
was “independent in self-care,” so was “ready to go to C Unit.” (ECF No. 98,
PageID.2655.) Additionally, his open wounds had closed. (ECF No. 98,
PageID.2656.) Regarding the surgery, Dr. Larson wrote that “the cost of staying
inpatient [at Hurley after the possible surgery] would be a large amount,” and so
they considered other options, including a Dr. Lanigan. (ECF No. 98, PageID.2655;
ECF No. 112, PageID.3113.) The surgery “was still in question as of discharge.”
(Id.) At her deposition, when asked if the 30 days was “a problem for some reason
that you’re aware of,” she responded that she “wasn’t the primary provider, and I
didn’t get those specific answers from utilization.” (ECF No. 112, PageID.31183119.) She followed up, however, by stating that DWH tried to employ secure units,

8

Dr. Larson also testified that she stopped magnesium, which another provider had ordered for Plaintiff’s
constipation, because she did not use that substance to treat constipation and because he was already taking
Lactulose for constipation. (ECF No. 112, PageID.3160-3161.) The records show that Hill prescribed the
magnesium and Lactulose for constipation. (ECF No. 90, PageID.1169.) 
9
She testified that she reduced the morphine prescription from every 8 hours, which was “a lot,” to every 12 hours.
(ECF No. 112, PageID.3143, 3145-3146.) However, the order form from June 25, 2015, shows that she ordered a
30mg tab every 6 hours. (ECF No. 112, PageID.3074.) In addition, the same form orders only 60mg of MS Contin,
an apparent reduction from the 75mg he’d been taking before, although no such changes were expressly mentioned
on the order form (even though adjustments were usually noted). (Id.)

-8 

and his physical examination showed no infection and healing wounds. (ECF No.
112, PageID.3119-3120.) Dr. Whiteman testified that the 30 days was a problem
because it was “not best practices,” in that he could get adequate recovery care at
DWH and Hurley had no reason to believe otherwise. (ECF No. 92, PageID.2230.)
Cost, according to Dr. Whiteman, wasn’t a factor. (Id.) Hill testified that “any
inmate who is off-site has to have two officers with them at all times.” (ECF No.
112, PageID.3041.)
In the C Unit, Defendant Dr. Muhammad Rais took charge of Plaintiff’s care. (ECF
No. 98, PageID.2660.) When Plaintiff arrived in the C Unit, Dr. Rais also ordered
lidocaine gel for pain relief, which Dr. Larson had discontinued upon transfer,
likely because she believed Plaintiff was no longer using it and because she “knew
if he needed it, it could be reordered once he got to C Unit. So it’s not like things
were just going to stop.”10 (ECF No. 92, PageID.2206; ECF No. 98, PageID.2666;
ECF No. 112, PageID.3156-3157, 3159-3160.) The lidocaine request was not
approved, however. (ECF No. 92, PageID.2206.) Dr. Rais testified that physical
therapy was one component of the pain management plan, as were non-opioid
medications such as Motrin, Tylenol, and Neurontin. (ECF No. 92, PageID.2198,
2206.)
Dr. Rais noted that Plaintiff’s Neurontin had been tapered, and he wrote that
Plaintiff “will need Neurontin 300 mg PO Four times a day for one year.” (Id.) He
explained that tapering was measured by toleration of pain, not by its total
elimination; a tapering plan “means keeping them comfortable, discontinuing it
[i.e., a medication] to the level where they can function.” (ECF No. 92,
PageID.2198.) The reason for the Neurontin taper was that “there has to be a
blending Neurontin level which we check for patients inside . . . and then if the
level [from lab results] is therapeutic [sic] range, there’s no benefit for giving
hydros.” (ECF No. 92, PageID.2200-2201.) Dr. Borgerding testified that the need
taper Neurontin depended on the type of pain a patient had, and that the drug “is
not clinically indicated for pain, but it’s used quite a bit.” (ECF No. 112,
PageID.2911.)
Tapering was “standard procedure,” according to Dr. Rais, so that patients would
not become dependent on an opioid, “but their pain is controlled in a compassionate
way” and assessed with “constant evaluation.” (ECF No. 92, PageID.2198-2199.)
There was nothing written out that labelled the progressive steps in a tapering plan.
(ECF No. 92, PageID.2199.) In the C Unit, approval from the pain management
committee was required to initiate opioid medications (due to their potential side
effects and risk of creating dependency) or initiate a tapering plan. (ECF No. 92,
PageID.2199-2200.)

10

Dr. Larson acknowledged that she had not worked in C Unit, but she knew that “[a]ny facility that I transfer a
patient to, everything gets re-evaluated.” (ECF No. 112, PageID.3160.) Hill had prescribed the lidocaine before the
transfer. (ECF No. 112, PageID.2943.)

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When Plaintiff completed his initial taper, around August 11, 2015, he continued
to request pain medications and Dr. Rais testified that he “tried to help him and give
him another option to complete another taper if he want[ed] to,” even though
Plaintiff was not showing signs of withdrawal. (ECF No. 92, PageID.2201-2202.)
Hospital records from around that time show that Plaintiff was on a Neurontin taper
and that Dr. Rais concluded he “will need to continue Neurontin.” (ECF No. 98,
PageID.2692.) As Dr. Rais observed at the deposition, Plaintiff during this period
was filing requests (called “kites”) for pain medications due to ongoing pain, as
well as grievances. (ECF No. 92, PageID.2202; see, e.g., ECF No. 98,
PageID.2693.) In a 407 request to the pain committee dated August 27, 2015, Dr.
Rais observed that the Neurontin was not helping with the pain and that Plaintiff
would benefit from Norco (he testified that it might have helped “just to some
extent”); the request was denied a few days later by Dr. Gary Kerstein. (ECF No.
98, PageID.2709, 2711; ECF No. 98, PageID.2205.) Afterwards, Plaintiff
continued to request increased pain medications and surgery. (ECF No. 98,
PageID.2712-2714.) Overall, Dr. Rais testified, he requested a few tapers. (ECF
No. 92, PageID.2204.)
Regarding other medications, in July 2015, Dr. Rais ordered 300mg of gabapentin
(Neurontin) four times a day. (ECF No. 112, PageID.3258.) At the start of August
Dr. Rais wrote, “Monitoring for pain. No change in medicine.” (ECF No. 112,
PageID.3307.) Later that month, he continued the gabapentin (Neurontin), stopped
MS Contin and morphine, and started acetaminophen (two 325mg tabs three times
a day) and Mobic (one 15mg tab a day). (ECF No. 112, PageID.3260, 3262.)
When Dr. Rais visited Plaintiff on September 17, 2015, he explained the recent the
[sic] pain committee’s deferral of another round of tapering; he also wrote that “[i]t
has been two weeks so restarting morphine and taper again will not help.” (ECF
No. 98, PageID.2720.) Plaintiff’s kites were also addressed, (id.), although he
continued to submit new ones complaining of pain. (ECF No. 98, PageID.2730,
2733-2734.)
Dr. Rais also followed up on the possible surgery. He understood that there was a
“safety security issue” at one facility, so he sought places in Lansing and with the
secured units. (ECF No. 92, PageID.2207.) On July 9, 2015, Dr. Rais requested that
Plaintiff have the contracture release and regrafting procedures with Dr. Pfeiffer at
Allegiance. (ECF No. 98, PageID.2663; ECF No. 92, PageID.2207-2208.) But Dr.
Pfieffer wanted to see Plaintiff first—although Dr. Rais acknowledged uncertainty
about whether Dr. Pfieffer made this request—so later in July Dr. Rais submitted a
request for a consultation regarding the surgery. (ECF No. 98, PageID.2673; ECF
No. 92, PageID.2207-2208.) The request was approved. (ECF No. 92,
PageID.2207.) After reviewing Plaintiff’s charts, Dr. Pfeiffer refused to see him.
(ECF No. 92, PageID.2208-2209.) Following this, Dr. Rais testified that he
contacted two other surgeons, Dr. Jones and Dr. Smith. (ECF No. 92,
PageID.2209.) On the August 27, 2015 notes, Dr. Rais wrote that he “[t]ried to
contact surgery at Allegiance and Mclaren and plastic surgery and no one is willing
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to accept patient for contracture release.” (ECF No. 98, PageID.2708.) At his
deposition, Dr. Rais explained that “this was a complicated procedure, and there
are not many plastic . . . surgeons who do this and choice is limited.” (ECF No. 92,
PageID.2210.)
By November 12, 2015, Dr. Rais had concluded that “[n]o Surgery or plactic [sic]
surgery center is willing to address this and perform a surgery. Continue to montor
[sic].” (ECF No. 98, PageID.2732; ECF No. 92, PageID.2210-2211.) Dr. Whiteman
testified that many plastic surgeons might be reluctant to get involved in situations
like this, where the burns resulted from a meth lab explosion. (ECF No. 92,
PageID.2228.) Dr. Rais did not recontact Hurly [sic] regarding their ability to do
the surgery because it was clear he could not be returned to DWH after surgery at
Hurley. (ECF No. 92, PageID.2212.) He thought the conclusion had been reached
that returning to Hurley for surgery was “out of the question,” although he could
not recall any specific discussion on the matter. (ECF No. 92, PageID.2212-2213.)
It was something that others had discussed before Plaintiff came to him. (ECF No.
92, PageID.2213.)
In February 2016, Plaintiff was discharged from the C-Unit. (ECF No. 98,
PageID.2749.) He was released from prison on September 1, 2016, and the same
day he returned to Dr. Morris at Hurley. (ECF No. 113, PageID.3660.) He had not
been back since December 2014. (Id.) Dr. Morris wrote:
At this time, his burns wounds have healed. He has actually done
very well. The current issues that he has involved contractures of the
hands, the anterior neck and the axilla. On the right hand, there are
contractures of the first webspace as well as webbing of the 2nd and
3rd web spaces. The 4th is actually quite good. On the left hand, his
primary issue is a band on the radial side of the thumb. The rest of
the hand does not bother him. There are some limiting contractures
of the anterior neck and bilateral axilla. . . . Mr. Lashuay’s advised
this would require surgical release. Since the right hand bothers him
the most, it will be reasonable to start with the right hand, we could
not do all of the areas at once. Quite likely, we would use an Integra
regimen on the neck and axilla.
(ECF No. 113, PageID.3660.) Later that month he underwent contracture release
and skin grafting on his right hand. (ECF No. 113, PageID.3661; ECF No. 114,
PageID.2491-2492.) A few days after that, Plaintiff informed Hurley that he would
not be following up with them because of the “excessive driving distance,” and he
would instead rely on his primary care physician. (ECF No. 113, PageID.3662.)
In 2018, Dr. Morris completed an affidavit. (ECF No. 90, PageID.1941-1943.) At
the December 2014 appointment, Dr. Morris “recommended that [Plaintiff’s] future
treatment should include, at some point, a contracture release and re-grafting.”
(ECF No. 90, PageID.1942.) When Plaintiff returned to him in 2016, “[i]t was not
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too late for [Plaintiff] to have the contracture release and re-grafting procedures.”
(Id.) Plaintiff’s progress at the time of the 2016 surgery “was consistent with my
expectations for him.” (Id.) Afterwards, when Plaintiff ceased following up at
Hurley, Dr. Morris believed that “[h]e had the potential at that time for additional
progress and improvements,” possibly with additional surgeries. (Id.) Dr. Morris
concluded that “[a]t the time of my involvement in [Plaintiff’s] care from 20142016, I did not identify any harm that [Plaintiff] suffered as a result of inadequate
or delayed medical care while incarcerated.” (ECF No. 90, PageID.1943.)
The record also contains a report and affidavit from Plaintiff’s physician from early
2017. (ECF No. 113, PageID.3667-3687.) To his doctor, Dr. David Yonick,
Plaintiff denied tingling, numbness, or weakness, but did report stiffness and
contractures in his hands and neck. (ECF No. 113, PageID.3670.) Dr. Yonick
recommended “aggressive OT and physical therapy” and “bilateral axillary Zplasty releases.” (ECF No. 113, PageID.3671.) Plaintiff reported to the physical
therapist that his exercises were markedly reducing the pain. (ECF No. 113,
PageID.3680.) Dr. Yonick later completed an affidavit, averring that when he
evaluated Plaintiff “there was still an opportunity for a major contracture release
undertaking, but only if [Plaintiff] was compliant with my recommended orders of
physical and occupational therapy.” (ECF No. 92, PageID.2017.) Plaintiff was not
compliant and failed to schedule any follow up visits with Dr. Yonick, the affidavit
concluded. (Id.)
*****
Other affidavits and reports from medical professionals also appear in the record.
Dr. Matthew Hettle completed an affidavit, explaining that he treated Plaintiff at
the rehabilitation unit in Hurley before the transfer to DWH. (ECF No. 92,
PageID.2009.) Upon discharge from Dr. Hettle’s care, Plaintiff “presented to be
independent with mobility using adaptive techniques, and he could complete all
activities of daily living.” (ECF No. 92, PageID.2010.) Dr. Hettle had expected that
Plaintiff “would need contracture release surgery at some point in the future” and
that his hands were unlikely to regain their former functionality. (Id.)
Dr. Randall Stolz also provided an expert report dated March 12, 2019. (ECF No.
92, PageID.2020-2030.) He explained that Plaintiff’s initial roster of pain
medications was “highly potent” and “were adjusted over time as seemed
warranted. . . . It is standard of care to try and wean patients off of narcotics due to
tolerance and to avoid addiction if possible and substitute less potent pain control
medications. This was done during [Plaintiff’s] care.” (ECF No. 92, PageID.2029.)
Ultimately, Dr. Stolz concluded that “[t]here was no delay in the wound care or
pain management” and that “[t]here was no harm in waiting for further surgery until
September 2016.” (ECF No. 92, PageID.2030.)
Dr. Gary Vercruysse completed an expert report in March 2019. (ECF No. 92,
PageID.2040-2043.) He stated that it was common for major burn victims to need
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“reconstructive surgery for contractures several months after they are initially
grafted.” (ECF No. 92, PageID.2042-2043.) Burns and sores could persist for
months…because the initial surgery is meant to save the patient’s life, so the skin
used for grafting often is “relatively poor quality” and the doctors might anticipate
future regrafting with better skin when the emergency passes. (ECF No. 92,
PageID.2043.) In conclusion, Dr. Vercruysse wrote that although incarceration
delayed the second surgery, and the “standard” of care at the DWH might not have
been equivalent to that “of a burn center,” Plaintiff was not denied care “and it
would likely still have taken many months/ more than a year for him to undergo
revisionary burn surgery” had he not been imprisoned. (Id.)
Plaintiff sued various medical staff in November 2017, after his release from prison.
(ECF No. 1.) In his second amended complaint, he alleges that defendants violated
his rights under the Eighth and Fourteenth Amendments by being deliberately
indifferent to his serious medical needs. (ECF No. 65, PageID.539-540.) His
complaint listed, among other things, defendants’ failure to provide the regrafting
and contracture release procedures, failure to provide wound care, and “[d]enial of
medically necessary pain management.” (ECF No. 65, PageID.540.)
ECF No. 120 at PageID.3771-3793.
B.
Magistrate Judge Morris found that “Plaintiff’s allegations of inadequate treatment fall
under three broad categories–wound care, pain medications, and surgery.” ECF No. 120 at
PageID.3814. She addressed each of these three categories in turn.
Of the Defendants, Plaintiff only alleged that Defendant Hill provided inadequate wound
care. Magistrate Judge Morris determined that Plaintiff had furnished insufficient evidence to
sustain a claim of inadequate wound care against Defendant Hill and recommended that the claim
be dismissed. Plaintiff has not objected to the dismissal of this claim. Accordingly, the claim of
inadequate wound care against Defendant Hill will be dismissed.
Magistrate Judge Morris then addressed Plaintiff’s arguments that Defendants Larson, Hill,
and Rais provided inadequate pain medication. Magistrate Judge Morris recommended dismissing
the claim because Plaintiff did not furnish “proof of his need for certain medications or dosages
and the effects of not getting them.” ECF No. 120 at PageID.3817.
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Magistrate Judge Morris then addressed Plaintiff’s final claims, that Defendants violated
Plaintiff’s Eighth Amendment rights by failing to arrange contracture and regrafting surgeries for
Plaintiff. ECF No. 120 at PageID.3823. She recommended that a question of fact remained as to
whether Papendick and Rais were deliberately indifferent to Plaintiff’s medical needs. ECF No.
120 at PageID.3824-3830.
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

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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.
III.
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 quotation marks and citation
omitted). Since then, Eighth Amendment jurisprudence has not remained static, but has developed
with “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 requires prison
officials to “provide medical care for those whom it is punishing by incarceration.” Estelle v.
Gamble, 429 U.S. 97, 103 (1976). Prison officials are prohibited from being deliberately
indifferent to a prisoner’s serious medical needs, meaning the “unnecessary and wanton infliction
of pain.” Id. at 104.
A constitutional claim for the deprivation of adequate medical care “has two components,
one objective and one subjective.” Johnson v. Karnes, 398 F.3d 868, 874 (6th Cir. 2005) (citing
Comstock v. McCrary, 273 F.3d 693, 702 (6th Cir. 2001), cert. denied, 537 U.S. 817 (2002)).
The objective component requires a plaintiff to show the existence of a “sufficiently
serious” medical need. Farmer v. Brennan, 511 U.S. 825, 834 (1994). To establish a serious need
for medical care, “Farmer requires only that ‘the inmate show that he is incarcerated under

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conditions posing a substantial risk of serious harm[,]’ so as to avoid ‘the unnecessary and wanton
infliction of pain.’” Blackmore v. Kalamazoo Cty., 390 F.3d 890, 896 (6th Cir. 2004) (quoting
Farmer, 511 U.S. at 834). A serious medical need may be demonstrated by a physician’s diagnosis
mandating treatment or a condition that “is so obvious that even a lay person would easily
recognize the necessity for a doctor’s attention.” Id. at 897 (citations omitted).
Establishing the second, subjective, component “requires a plaintiff to ‘allege facts which,
if true, would show that the official being sued subjectively perceived facts from which to infer
substantial risk to the prisoner, that he did in fact draw the inference, and that he then disregarded
that risk.’” Dominguez v. Corr. Med. Serv., 555 F.3d at 550 (quoting Comstock, 273 F.3d at 703).
Deliberate indifference requires “more than negligence or the misdiagnosis of an ailment.”
Comstock, 273 F.3d at 703 (citations omitted). Courts evaluating such a claim “distinguish
between cases where the complaint alleges a complete denial of medical care and those cases
where the claim is that a prisoner received inadequate medical treatment.” Alspaugh v. McConnell,
643 F.3d 162, 169 (6th Cir. 2011) (quoting Westlake v. Lucas, 537 F.2d 857, 860 n. 5 (6th
Cir.1976)).
Allegations of negligence, poor medical judgment, or unsuccessful treatment do not
provide a basis to find an Eighth Amendment violation. Smith v. Green, 959 F.2d 236 (6th Cir.
1992) (citing Estelle, v. Gamble, 429 U.S. 97, 106 (1976)). “Where a prisoner alleges only that the
medical care he received was inadequate, ‘federal courts are generally reluctant to second guess
medical judgments,’ although ‘it is possible for medical treatment to be ‘so woefully inadequate
as to amount to no treatment at all.’” Id. (citing Westlake, 537 F.2d at 860 n. 5). But “a desire for
additional or different treatment does not suffice by itself to support an Eighth Amendment claim.”
Mitchell v. Hininger, 553 F. App’x 602, 605 (6th Cir. 2014) (citing Estelle, 429 U.S. at 107;

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Rhinehart v. Scutt, 509 F. App’x 510, 513–14 (6th Cir. 2013)) (other citation omitted). See also
Alspaugh, 643 F.3d at 169 (while “Alspaugh certainly would have desired more aggressive
treatment, he was at no point denied treatment.”).
IV.
Plaintiff and Defendants Papendick and Rais have filed objections to Magistrate Judge
Morris’s report and recommendation. Both sets of objections will be addressed in turn and for the
following reasons, Plaintiff’s objections will be overruled and Defendant Papendick and Rais’s
objections will be sustained.
A.
Magistrate Judge Morris recommended dismissing Plaintiff’s claim of inadequate pain
management treatment by Defendants Larson, Hill, and Rais because Plaintiff did not furnish
“proof of his need for certain medications or dosages and the effects of not getting them.” ECF
No. 120 at PageID.3817. Plaintiff filed an objection to Magistrate Judge Morris’s report, but did
not identify any medical evidence to support his assertion. Without this showing, he has not
demonstrated that he experienced a serious medical need.
Plaintiff does not claim in his complaint that Defendants failed to provide him with pain
medications. Instead, he claims that Defendants reduced or ceased certain medications that he
allegedly needed. ECF No. 112 at PageID.2861-2862. As noted above, Defendants reduced
Plaintiff’s pain medications for various medical reasons, including concerns about the addictive
nature of some of the drugs. Plaintiff has not provided any medical evidence to support the
proposition that this decrease in medication caused a serious medical need. “To the contrary, the
evidence all suggests that the tapering which occurred was standard practice or at least had some
medical rationale.” ECF No. 120 at PageID.3817. Though he may disagree with Defendants

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decision to reduce his pain medications, this does not rise to the level of an Eighth Amendment
violation. See Owens v. Hutchinson, 2003 WL 22434571, at *2 (6th Cir. Oct. 24, 2003) (“A
patient’s disagreement with his physicians over the proper medical treatment alleges no more than
a medical malpractice claim, which is a tort actionable in state court, but is not cognizable as a
federal constitutional claim.”).
Accordingly, Plaintiff’s objections will be overruled.
B.
Defendants Papendick and Rais object to Magistrate Judge Morris’s recommendation that
questions of fact remain regarding their actions related to Plaintiff’s recommended surgery. As
explained above, under the objective component, a plaintiff must show the existence of a
“sufficiently serious” medical need. Dominguez, 555 F.3d at 550 (6th Cir. 2009) (citing Farmer v.
Brennan, 511 U.S. 825, 834 (1994)). A serious medical need may be demonstrated by a physician’s
diagnosis mandating treatment or a condition that “is so obvious that even a lay person would
easily recognize the necessity for a doctor’s attention.” Blackmore v. Kalamazoo Cty., 390 F.3d
890, 897 (6th Cir. 2004). “[F]ailure to provide the prescribed plan of treatment may form the basis
of a claim for deliberate indifference to an inmate’s serious medical needs.” Richmond v. Huq, 885
F.3d 928, 941 (6th Cir. 2018); see also Boretti v. Wiscomb, 930 F.2d 1150, 1154 (6th Cir. 1991).
Rais and Papendick claim that “Plaintiff has not established a serious medical need,
because there was no timeline associated with the recommended surgery and no harm would have
resulted from delaying the procedure.” ECF No. 121 at PageID.3836. Dr. Morris, the doctor who
treated Plaintiff at Hurley prior to Plaintiff’s transfer to DWH, testified in an affidavit that:
Based on Mr. Lashuay’s medical chart, between July 24, 2014 and September 30,
2014, a series of skin graft surgeries were performed on Mr. Lashuay’s burns.

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On October 15, 2014 I noted that Mr. Lashuay was likely to require contracture
releases in the future; however, prior to any further surgery he would have to
maximize his available functioning and allow the grafted wounds to mature.
On December 19, 2014, I had my first follow up with Mr. Lashuay following his
discharge from Hurley Rehab in October. Mr. Lashuay presented with a healed
face, scattered residual unhealed areas on the left side of his neck, left shoulder, and
right shoulder. I also noted poor hand movement, left elbow contracture, and no
signs of infection.
I recommended that Mr. Lashuay’s future treatment should include, at some point,
a contracture release and re-grafting…
When Mr. Lashuay was released from prison in September 2016, he had another
follow-up visit with me. It was not too late for Mr. Lashuay to have the contracture
release and re-grafting procedures at that time.
On September 26, 2016, I performed another skin graft on Mr. Lashuay’s right
hand. At that time, I recommended a post-surgical follow-up visit and additional
surgery to be completed at a later time.
Mr. Lashuay did not schedule any further follow up with me…
At the time of my involvement in Mr. Lashuay’s care from 2014-2016, I did not
identify any harm that Mr. Lashuay suffered as a result of inadequate or delayed
medical care while incarcerated.
ECF No. 90-13. Another doctor who treated Plaintiff at Hurley, Dr. Hettle, testified that “it was
expected that Mr. Lashuay would have scarring and that he would need contracture release surgery
at some point in the future.” ECF No. 92-6 at PageID.2010.
Neither Dr. Morris nor Dr. Hettle provided a specific timeframe in which Plaintiff should
receive his surgery. Eight months after Plaintiff was admitted to DWH, Dr. Hill requested that
Plaintiff receive the surgeries. Her report provided:
407 placed for Contracture Release surgery at Hurley Burn Clinic. This surgery
request has been held per instruction from the Burn Clinic whose progress note
indicated:
“At some point in the future months, he will benefit from a contracture release and
regrafting. However, this should wait until [sic] all of the small residual open areas
are healed.”
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ECF No. 90-3. The next month, Dr. Rais also requested that Plaintiff receive the surgery. His report
provided, “It has been recommended by Hurley Burn Center that once all open wounds are healed
he could/should have contracture release.” ECF No. 98 at PageID.2663. He contacted three
different surgeons, but concluded by November 2015 that none of them were willing to perform
Plaintiff’s surgery.
Magistrate Judge Morris determined that Defendant Hill’s and Defendant Rais’s
recommendations for the surgery demonstrate that the Defendants acknowledged that the surgery
was necessary. However, neither their requests nor the original recommendations by Dr. Morris or
Dr. Hettle provide any indication that the surgery had to be performed immediately. Plaintiff
cannot sustain his argument that he suffered a serious medical need when Defendants allegedly
failed to “provide the prescribed plan of treatment.” Richmond v. Huq, 885 F.3d 928, 941 (6th Cir.
2018). None of his healthcare providers concluded that the surgery was urgent or required
immediate attention. This is further supported by Dr. Morris’s assertion that following Plaintiff’s
discharge from DWH, Dr Morris concluded that “[i]t was not too late for Mr. Lashuay to have the
contracture release and re-grafting procedures at that time.”
Magistrate Judge Morris notes that Dr. Morris’s statement “cuts both ways” and reasons
that:
[P]erhaps the lack of an earlier surgery in prison did not harm Plaintiff over the
long run, the fact that the procedures could be effective suggests that an earlier
surgery would have provided him increased functionality or relief (or whatever Dr.
Morris meant by effectiveness) while still in jail. At the very least, then, Dr.
Morris’s statement does not weigh against the possibility that more timely
procedures would have provided benefits to treat this serious medical need.
ECF No. 120 at PageID.3825. Her recommendation further provides:
Regardless, the fact that Plaintiff might have eventually received treatment in time
to benefit from it does not negate the pain or loss of function he might have
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experienced prior to the treatment—and given the evidence that he needed the
procedures, it is reasonable to conclude that at least some of his suffering and
physical difficulties in prison flowed from the lack of surgery…Indeed, while in
prison, his right hand was clawed, and his motions were restricted. See, e.g., (ECF
No. 90, PageID.757.)
Id. at PageID.3826.
However, during Plaintiff’s incarceration, he was receiving continuous treatment for his
burns. The Sixth Circuit distinguishes “between cases where the complaint alleges a complete
denial of medical care and those cases where the claim is that a prisoner received inadequate
medical treatment.” Westlake v. Lucas, 537 F.2d 857, 860 n. 5 (6th Cir. 1976). “Allegations ‘that
more should have been done by way of diagnosis and treatment’ and ‘suggest[ions]’ of other
‘options that were not pursued’ raise at most a claim of medical malpractice, not a cognizable
Eighth Amendment claim.” Rhinehart v. Scutt, 894 F.3d 721, 741 (6th Cir. 2018) (quoting Estelle,
429 U.S. at 107).
Plaintiff does not dispute that he was receiving treatment for his burns while incarcerated.
Though Dr. Morris, Dr. Hill, and Dr. recommended that Plaintiff receive surgery at some
undetermined point in the future, this alone does not rise to the level of an Eighth Amendment
violation. Plaintiff received treatment for his burns the entire time he was incarcerated. This is
supported by Dr. Morris’s assertion that he “did not identify any harm that Mr. Lashuay suffered
as a result of inadequate or delayed medical care while incarcerated.” ECF No. 90-13. Though
Plaintiff may have desired that the surgery occur sooner, this does not negate the fact that Plaintiff
was still receiving adequate medical care while incarcerated. Accordingly, his complaint does not
qualify as an Eighth Amendment claim.
V.

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Accordingly, it is ORDERED that the Report and Recommendation, ECF No. 120, is
ADOPTED IN PART.
It is further ORDERED that Plaintiff’s objections, ECF No. 122, are OVERRULED.
It is further ORDERED that Defendants’ objections, ECF No. 121, are SUSTAINED.
It is further ORDERED that Defendants’ motions for summary judgment, ECF Nos. 90
and 92, are GRANTED.
It is further ORDERED that Plaintiff’s Second Amended complaint, ECF No. 65, is
DISMISSED.

Dated: March 16, 2020

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

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