Hall v. Raja et al

Filing 150

ORDER Adopting Report and Recommendation for 87 Motion for Summary Judgment, Motion to Dismiss filed by Correctional Medical Services, Inc., 116 Report and Recommendation and Continuing Full Case Reference. Signed by District Judge David M. Lawson. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TOMMY HALL,
Plaintiff,
v.

Case Number 09-10933
Honorable David M. Lawson
Magistrate Judge Mark A. Randon

RAJA a/k/a VISHNAMPET THYAGARAJAN,
JANY SHARPLEY, RAWAL, CORRECTION
MEDICAL SERVICES, INC. and PRISON
HEALTH SERVICES, INC.,
Defendants.
____________________________________/
ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION, OVERRULING PLAINTIFF’S
OBJECTIONS, OVERRULING DEFENDANT CMS’S OBJECTIONS IN PART,
AND GRANTING IN PART AND DENYING IN PART DEFENDANT CMS’S
MOTION TO DISMISS OR FOR SUMMARY JUDGMENT
The case is before the Court on objections filed by the plaintiff and defendant Correction
Medical Services (CMS) to a report issued by Magistrate Judge Mark A. Randon recommending that
CMS’s motion to dismiss or for summary judgment be granted in part and denied in part. Plaintiff
Tommy Hall was a Michigan prisoner who suffered from a congenital condition that caused spinal
stenosis and nerve impingement. He required surgery to decompress his spinal cord, which was
performed while Hall was a prisoner. He complained because the defendants refused to provide
proper follow-up care, including medications for pain, physical therapy, and double-layered
mattresses. Hall filed grievances and then this lawsuit. The case was referred to Magistrate Judge
Mark A. Randon to conduct all pretrial proceedings. The plaintiff was allowed to amend his
complaint to join CMS as a defendant. CMS responded with a motion to dismiss or for summary
judgment raising issues of failure to exhaust remedies and failure to state a claim. On October 7,
2011, Judge Randon filed his report recommending that the Court reject the exhaustion argument,

dismiss a claim against CMS based on respondeat superior, and deny the balance of the motion.
Both sides filed timely objections, and the matter is before the Court for de novo review. The Court
finds that the magistrate judge’s conclusion is correct. Therefore, the Court will overrule the
objections, adopt the report and recommendation, grant defendant CMS’s motion to dismiss in part,
dismiss Count 3 of the amended complaint, and deny the rest of the motion to dismiss.
I.
The facts and proceedings are familiar to the parties and need not be repeated here. The
proceedings, including the pre-suit grievance proceedings, were well described by the magistrate
judge. In its motion to dismiss or for summary judgment, defendant CMS contends that the plaintiff
did not exhaust properly the administrative grievance process because he never identified CMS by
name, instead referring to the “medical staff” when describing the failure of medical care. Also, the
plaintiff allegedly failed to set out in his grievance the precise deprivation that he described in his
amended complaint. CMS also argued that the complaint did not allege a claim against it for which
relief could be granted because CMS cannot be found liable on the theory of vicarious liability, and
the amended complaint does not allege a harm that was caused by an unconstitutional policy,
custom, or practice.
The plaintiff had filed three separate grievances, but the magistrate judge focused on the
October 2, 2008 filing, SMT 08-10-1184-12z, which is set out in full in the report and
recommendation. The magistrate judge construed the grievance liberally and concluded that its text
claimed “a lack of access to a specialist (pain doctor) and a lack of diagnostic testing (an MRI).”
Rep. & Rec. at 7. The magistrate reasoned that those medical complaints and the term “medical
staff” (which appears three times in the grievance) were sufficient to give prison officials fair notice

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that the grievance was against CMS. Because no party disputed that the grievance was denied on
the merits, the magistrate judge applied established Sixth Circuit law and concluded that “the
prison’s response to the merits of the Grievance satisfied the need for specificity expressed in the
MDOC’s grievance procedure, and the grievance filed by the plaintiff satisfied the exhaustion
requirement.” Rep. & Rec. at 8 (citation omitted).
The magistrate judge also found that Hall has stated a facially plausible claim of deliberate
indifference against CMS. In the amended complaint, Hall identified specific policies and practices
that, as adopted and implemented by CMS, operated to deprive him of his constitutional rights.
CMS argued that those are policies of the MDOC that may not be imputed to CMS; however, the
magistrate judge reasoned that it is unclear at this stage of the litigation whether CMS can be held
accountable for following the policies. The magistrate judge recommended denial of the motion to
dismiss count 2.
The magistrate recommended granting CMS’s motion to dismiss Count 3 because it premises
CMS’s liability on the actions or inactions of its employees.
The plaintiff objected to the recommendation to dismiss Count 3 of the amended complaint
because the contract between the Michigan Department and CMS made CMS “entirely responsible”
for the acts of its agents, employees, servants, and subcontractors, Therefore, the plaintiff reasons,
the doctrine of respondeat superior should apply and CMS should be liable for the acts of its
employees and subcontractors. CMS responded and argued that respondeat superior cannot support
a claim under 42 U.S.C. § 1983, citing Monell v. Dep’t of Social Services, 436 U.S. 658, 692 (1978).
The Sixth Circuit extended the holding in Monell to private corporations in Street v. Corrections

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Corp. of America, 102 F.3d 810, 818 (6th Cir. 1996), holding that they are also immune from claims
based on respondeat superior.
CMS objected to the report and recommendation, urging again its exhaustion arguments and
reiterating that the plaintiff did not file a single grievance identifying naming CMS by name before
filing the present action; the plaintiff’s grievance did not identify the same claims that he brought
against CMS in the amended complaint; and it is unreasonable to require CMS personnel to
understand that the grievance was filed against CMS. Hall did not respond to those objections.
II.
Objections to a report and recommendation are reviewed de novo. 28 U.S.C. § 636(b)(1).
The Sixth Circuit has stated that “[o]verly general objections do not satisfy the objection
requirement.” Spencer v. Bouchard, 449 F.3d 721, 725 (6th Cir. 2006). “The objections must be
clear enough to enable the district court to discern those issues that are dispositive and contentious.”
Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995). “‘[O]bjections disput[ing] the correctness of the
magistrate’s recommendation but fail[ing] to specify the findings . . . believed [to be] in error’ are
too general.” Spencer, 449 F.3d at 725 (quoting Miller, 50 F.3d at 380).

“[T]he failure to file

specific objections to a magistrate’s report constitutes a waiver of those objections.” Cowherd v.
Million, 380 F.3d 909, 912 (6th Cir. 2004).
A. Plaintiff’s objections
In Count 3 of the amended complaint, the plaintiff alleges that CMS “had the duty, through
its employees, including but not limited to Defendant Thyagarajan[,] to meet Plaintiff’s medical
needs at all times herein mentioned.” Am. Compl. ¶ 52. The plaintiff then proceeds to list the
offending conduct, most of which duplicates the allegations in count 2. Those paragraphs that do

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not duplicate count 2 address the individual conduct of Dr. Thyagarajan and other unnamed CMS
employees, including the members of the Pain Management Committee. The theory advanced in
count 3 is that CMS is vicariously liable for the conduct of its employees.
The plaintiff objects to the magistrate judge’s recommendation to dismiss Count 3 against
CMS because a paragraph in the contract between CMS and the MDOC makes CMS “entirely
responsible” for the acts of its employees. Therefore, the plaintiff reasons, the doctrine of
respondeat superior should apply.
The contract provision states:
1-BB Relationship of the Parties. (Independent Contractor) The relationship
between the State and the Contractor is that of client and independent Contractor.
No agent, employee, or servant of the Contractor or any of its subcontractors shall
be or be deemed to be an employee, agent, or servant of the State for any reason.
The Contractor will be solely and entirely responsible for its acts and the acts of its
agents, employees, servants[,] and subcontractors during the performance of this
Contract.
Pl.’s Response to Mot. to Dismiss Ex. A, Contract ¶ 1-BB. The exhibit has no identifying
information to connect it to CMS, but all the plaintiff’s factual allegations must be accepted as true
at this stage of litigation.
It is well settled that “respondeat superior is not available as a theory of recovery under
section 1983.” Doe v. Claiborne Cnty., 103 F.3d 495, 507 (6th Cir. 1996) (citing Monell, 436 U.S.
at 691); see also Vereecke v. Huron Valley Sch. Dist., 609 F.3d 392, 403 (6th Cir. 2010). The
plaintiff does not press that point. Instead, he seems to rely on the theory that Hall is a third-party
beneficiary under the contract between the MDOC and CMS. However, the plaintiff’s attorney has
not explicitly argued such a theory. Even if she had, the theory would only apply to an action for
breach of contract, and not to the constitutional claim now before the Court.

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The plaintiff has cited no authority for the idea that contracting parties may expand the
liability of a state actor beyond the limits set out in the Constitution and section 1983. Therefore,
“[s]ection 1983 liability must be premised on more than mere respondeat superior, the right to
control one’s employees.” Everson v. Leis, 556 F.3d 484, 495 (6th Cir. 2009) (citing Shehee v.
Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)). A private corporation may not be held liable in a §
1983 claim based solely on respondeat superior; rather, a private corporation can only be held liable
if the deliberate indifference suffered by the plaintiff is due to a policy, practice, or custom of the
corporation. Street, 102 F.3d at 818 (extending Monell’s holding to private corporations).
The plaintiff’s objection to the report and recommendation lacks merit and will be overruled.
B. CMS’s objection
The magistrate judge concluded that the plaintiff stated a claim against defendant CMS in
Count 2 of the amended complaint because the plaintiff identified specific policies and practices that
caused him harm, satisfying the requirements of Monell. The magistrate judge rejected CMS’s
argument that it could not be accountable for damages because the policies were those of the
Michigan Department of Corrections.

CMS did not object to that part of the report and

recommendation. A party’s failure to file objections to the report and recommendation waives any
further right to appeal. Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.
1987). Likewise, the failure to object to an unfavorable portion of the magistrate judge’s report
releases the Court from its duty to independently review the issue. Thomas v. Arn, 474 U.S. 140,
152 (1985). The Court will adopt that part of the recommendation.
CMS’s three objections focus on the exhaustion requirement of the Prison Litigation Reform
Act, 42 U.S.C. § 1997e(a). The PLRA’s exhaustion requirement is mandatory. Porter v. Nussle,

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534 U.S. 516, 524 (2002); Booth v. Churner, 532 U.S. 731, 741 (2001). “Exhaustion” under the
PLRA means “proper exhaustion.” Woodford v. Ngo, 548 U.S. 81, 93 (2006). “Proper exhaustion”
means “compliance with an agency’s deadlines and other critical procedural rules . . . .” Id. at 90.
The Supreme Court has held that “failure to exhaust is an affirmative defense under the
PLRA, and . . . inmates are not required to specially plead or demonstrate exhaustion in their
complaints.” Jones v. Bock, 549 U.S. 199, 216 (2007). This affirmative defense may serve as a
basis for dismissal only if raised and proven by the defendants. Ibid.
Since the Supreme Court decided Jones v. Bock, the Sixth Circuit has stated that courts ought
not impose severe technical requirements on prisoners who comply with the spirit and purpose of
the administrative exhaustion rules. “[I]t is sufficient for a court to find that a prisoner’s [grievance]
gave prison officials fair notice of the alleged mistreatment or misconduct that forms the basis of
the constitutional or statutory claim made against a defendant in a prisoner’s complaint.” Bell v.
Konteh, 450 F.3d 651, 654 (6th Cir. 2006) (internal quotation marks and citation omitted).
A fair indicator that the purpose of the grievance was fulfilled is the prison’s response to the
inmate’s complaint. If the information in the grievance is too vague or imprecise, a response so
indicating would tell the interested parties that more detail is necessary. However, when the prison
officials address the merits of the prisoner’s complaint without mentioning a problem identifying
the object of the grievance, the administrative system has worked, and the prison officials have had
the “opportunity to correct [their] own mistakes.” Woodford, 548 U.S. at 89 (internal citation and
quotation marks omitted).

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As the magistrate judge observed, the plaintiff’s October 2, 2008 grievance does not identify
CMS or any of its employees by name; instead, it simply refers to “medical staff.” CMS objects
that Hall did not exhaust because he did not file a single grievance against CMS before bringing this
lawsuit. However, in Reed-Bey v. Pramstaller, 603 F.3d 322 (6th Cir. 2010), a prisoner pursued a
grievance through all levels of the prison’s procedure and was denied on the merits at each level.
The district court dismissed his section 1983 lawsuit for failure to exhaust administrative remedies
because he did not include in his grievance the names of all the people involved. On appeal, the
Sixth Circuit reversed, holding that, “the State’s decision to review a claim on the merits gives [the
court] a warrant to do so as well, even when a procedural default might otherwise have resolved the
claim.” Id. at 325.
The plaintiff’s situation is similar to Reed-Bey’s: despite the plaintiff’s failure to name
individuals, prison officials accepted the grievance and responded on the merits by quoting from his
medical record. Their decision to do so, rather than reject the grievance for procedural deficiencies,
shows that they had fair notice of the alleged misconduct, fulfilling the purpose of the grievance.
Where the prison officials did not enforce their own procedural rules for grievances, dismissing the
case now for the same inadequacies would give the MDOC’s merit-based denial of the grievance
“undeserved insulation from federal judicial review.” Id. at 326.
CMS also objects that the grievance does not raise the exact same claims brought against
CMS in the present action. The purpose of the PLRA’s exhaustion requirement is to “affor[d]
corrections officials time and opportunity to address complaints internally before allowing the
initiation of a federal case.” Porter, 534 U.S. at 525. If the grievance “gave prison officials fair
notice of the alleged mistreatment or misconduct that forms the basis of the constitutional or

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statutory claim made against a defendant in a prisoner’s complaint,” that will be sufficient to
exhaust. Burton v. Jones, 321 F.3d 569, 575 (6th Cir. 2003) abrogated with respect to other
principles by Jones v. Bock, 549 U.S. 199 (2007).
However, the factual allegations in the grievance and those in Count 2 of the second
amended complaint are substantially similar. Both mention the denial of the plaintiff’s request for
a special accommodation for his mattress, the lack of a referral to a pain specialist, and inadequate
pain medication to address his suffering. The grievance even identifies the violation of the Eighth
Amendment’s prohibition against cruel and unusual punishment as the legal basis for Hall’s
grievance. The main differences are found in Count 3, which deals with the individual conduct of
CMS employee Dr. Thyagarajan. But that does not undermine the viability of the claims in Count 2.
CMS’s final objection is that the text of the grievance could not be understood by CMS
employees that the grievance was against CMS. However, the responses to the grievance at each
of the three levels of the process demonstrate not only that it was reasonable for the people who
responded to the grievance to understand that the grievance was against CMS, but that they actually
understood that the grievance was against CMS as well.
None of CMS’s objections have merit and they all will be overruled.
III.
The Court’s de novo review of CMS’s motion to dismiss and the plaintiff’s response leads
to the conclusion that the magistrate judge applied the law correctly to the facts of the case.
Accordingly, it is ORDERED that the magistrate judge’s report and recommendation [dkt
#116] is ADOPTED.

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It is further ORDERED that the plaintiff’s and defendants’ objections to the report and
recommendation [dkt #121, 122] are OVERRULED.
It is further ORDERED that defendant CMS’s motion to dismiss or for summary judgment
[dkt #87] is GRANTED IN PART AND DENIED IN PART. Count 3 of the second amended
complaint is DISMISSED.
It is further ORDERED that the matter is referred to Magistrate Judge Mark A. Randon
under the previous reference order [dkt #12] to ready the matter for trial and to conduct a trial if the
parties consent under 28 U.S.C. § 636(c)(1).

s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: March 27, 2012

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 27, 2012.
s/Deborah R. Tofil
DEBORAH R. TOFIL

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