Parsons v. Heebsh et al

Filing 34

ORDER Adopting in part 32 Report and Recommendation, Sustaining in part and Overruling in part Plaintiff's Objections 33 ; and Granting 23 Defendants' Motion for Summary Judgment. Signed by District Judge Stephen J. Murphy, III. (CCoh)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JEANNIE PARSONS,
Case No. 09-cv-14411
Plaintiff,
HONORABLE STEPHEN J. MURPHY, III
v.
HOPE S. HEEBSH et. al.,
Defendants.
/
OPINION AND ORDER ADOPTING IN PART REPORT
AND RECOMMENDATION (docket no. 32), SUSTAINING IN
PART AND OVERRULING IN PART PLAINTIFF’S
OBJECTIONS (docket no. 33), AND GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (docket no. 23)
Plaintiff Jeannie Parsons, the successor personal representative of the estate of
Randy J. Parsons (“Parsons”), filed this action pursuant to 42 U.S.C. § 1983, alleging that
defendants Sara Hope Heebsh and Correctional Medical Services (“CMS”) (collectively
“Defendants”) were deliberately indifferent to Parsons’s medical needs, resulting in his
death. Defendants filed a motion for summary judgment. The motion was referred to the
magistrate judge, who issued a Report and Recommendation (“R & R”) recommending that
the Court grant Defendants’ motion. Plaintiff timely objected to the R & R. Defendants did
not respond to Plaintiff’s objections. For the following reasons, the Court will sustain in part
and overrule in part Plaintiff’s objections; adopt the R & R in part, with modifications; and
grant Defendants’ motion for summary judgment.

STANDARD OF REVIEW
1. Review of R & R
The standard of review applicable to a magistrate judge’s report and recommendation
is dependent upon whether a party files objections. The Court need not review portions of
a report to which a party does not object. Thomas v. Arn, 474 U.S. 140, 150 (1985). The
Court, however, “must determine de novo any part of the magistrate judge’s disposition that
has been properly objected to. The district judge may accept, reject, or modify the
recommended disposition; receive further evidence; or return the matter to the magistrate
judge with instruction.” Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1) (“A judge
of the court shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.”).

Overly broad

objections do not satisfy the objections requirement. Spencer v. Bouchard, 449 F.3d 721,
725 (6th Cir. 2006). The objections must be clear enough that the court can “discern those
issues that are dispositive and contentious.” Id. Objections that merely challenge the
correctness of the magistrate’s recommendation but fail to specify what findings were
erroneous are insufficient. Id.
2. Summary Judgment
Summary judgment is appropriate if the evidence, when viewed in the light most
favorable to the nonmoving party, shows that there is no genuine issue of material fact
such that the moving party is entitled to judgment as a matter of law. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). A fact is “material” for
purposes of summary judgment “if proof of that fact would have the effect of establishing
or refuting an essential element of the cause of action or a defense” advanced by the
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parties. Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984). A dispute over a
material fact is genuine “if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Accordingly, when a reasonable jury could not find that the nonmoving party is entitled to
a verdict, there is no genuine issue for trial and summary judgment is appropriate. Id.;
Feliciano v. City of Cleveland, 988 F. 2d 649, 654 (6th Cir. 1993). “The judge is not to
weigh the evidence and determine the truth of the matter, but rather [is to] determine
whether there is a genuine issue for trial.” Sterling China Co. v. Glass, Molders, Pottery,
Plastics and Allied Workers Local No. 24, 357 F.3d 546, 551 (6th Cir. 2004).
BACKGROUND
The Court will briefly summarize the factual background of the case, but incorporates
by reference the section of facts contained in Judge Morgan’s R & R.
At the time of his death, Parsons was incarcerated and in the custody of the Michigan
Department of Corrections (“MDOC”). Parsons had a documented history of mental illness
and seizure disorder, and was on numerous medications, including Dilantin, an anti-seizure
medication. On August 25, 2004, Parsons was transferred to the Standish Maximum
Correctional Facility (“Standish”). Parsons arrived at Standish without his medications.
On the night of his arrival at Standish, Parsons was screened by a nurse. The
following day, he was examined by Heebsh, a physician’s assistant, and Dr. McCarthy, a
psychiatrist. Heebsh prescribed Dilantin for Parsons’s seizure disorder, and indicated on
the prescription that Parsons should be started on Dilantin that same day – August 26,
2004. The MDOC nursing staff, however, ordered the Dilantin from PharmaCorr, a CMS
subsidiary located in Oklahoma. The medication arrived the next day, and, according to
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prison records, was administered to Parsons on August 27 and 28. On August 28, 2004
– three days after he arrived at Standish – Parsons died in his cell.
Two autopsies were performed. One indicated that Parsons died of “seizures
disorder.” The second indicated that the cause and manner of death were undetermined.
A toxicology screen done at the same time as the second autopsy identified traces of
Wellbutrin, an anti-depressant which Parsons had never been prescribed, in his system,
but found no trace of Dilantin.
In August 2007, Plaintiff filed a lawsuit against various individuals, alleging that the
defendants had denied and delayed Parsons’s medical care and were thereby responsible
for his death. After numerous defendants were dismissed, either voluntarily or involuntarily,
the Court granted summary judgment as to the remaining six defendants, including Dr.
McCarthy, nurses who had either evaluated Parsons or distributed medications to him, the
former director of MDOC, and the warden of Standish. Subsequently, Plaintiff filed the
instant suit, alleging that defendant Heebsh was deliberately indifferent to Parsons’s
medical needs, and that Heebsh’s employer CMS, a private corporation contracted out with
MDOC to manage inmate health at Standish, implemented an unconstitutional custom,
policy, or practice requiring that all prescriptions be obtained from PharmaCorr, in violation
of Parsons’s constitutional rights.
ANALYSIS
A. Summary Judgment as to CMS
Plaintiff asserts that CMS instituted a policy at Standish to obtain all medication from
PharmaCorr and to deny inmates medication until it could be obtained from the same.
Magistrate Judge Morgan recommended granting summary judgment in favor of CMS, after
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finding that CMS, as a private corporation, could not be subject to a “policy, custom, and
practice” (i.e., Monell1) claim. Moreover, Magistrate Judge Morgan concluded that “if
anything, as an MDOC contractor, CMS would be considered part of the state for purposes
of the Eleventh Amendment.” See R & R at 10.
Plaintiff objects to Magistrate Judge Morgan’s finding and asserts that CMS is not an
arm of the state entitled to immunity under the Eleventh Amendment. The Court sustains
the objection. A private or public corporation may be held liable for constitutional violations
under § 1983 where a plaintiff establishes that the corporations’ policy or custom caused
the alleged injury. See Braswell v. Corr. Corp. of Am., No. 09-6100, 2011 U.S. App. LEXIS
7903, at *14 (6th Cir. April 15, 2011) (holding that “[a] private corporation that performs the
traditional state function of operating a prison acts under color of state law for purposes of
§ 1983” will be held liable for constitutional violations if the corporation’s policy was “the
moving force” behind the alleged constitutional deprivation) (internal citation omitted);
Street v. Corr. Corp. of Am., 102 F.3d 810, 814, 817 (6th Cir. 1996). Moreover, “there is
no indication that any court has recognized CMS as an ‘arm of the state’ for Eleventh
Amendment purposes,” nor did CMS argue that it is entitled to Eleventh Amendment
immunity. See Lamb v. Taylor, No. 08-324, 2009 U.S. Dist. LEXIS 26853, at *6 (D. Del.

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In Monnell v. New York City Dept. of Social Servs., 436 U.S. 658 (1978), the
Supreme Court held that municipalities and local governments are “persons” subject to suit
pursuant to § 1983 and may be held liable “when execution of a government’s policy or
custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said
to represent official policy” results in a constitutional deprivation. Id. at 690-91. In other
words, a local government entity may be held liable under § 1983, when the local
government’s policy or custom is “‘the moving force behind the deprivation,’ such that the
‘entity’s policy or custom . . . played a part in the violation of federal law.” S.H.A.R.K. v.
Metro Parks Serv. Summit Cnty, 499 F.3d 553, 563 (6th Cir. 2007) (quoting Kentucky v.
Graham, 473 U.S. 159, 166 (1985) (internal quotation marks omitted)).
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Mar. 31, 2009). Accordingly, the Court sustains Plaintiff’s objection and will consider
Defendants’ motion for summary judgment as to CMS de novo.
To prevail on her claim against CMS, Plaintiff must demonstrate that a CMS policy
or custom deprived Parsons’s of his constitutional rights. Stracher v. Corr. Med. Sys., Inc.,
7 F. App’x 459, 465 (6th Cir. 2001). In the analogous context of municipal liability, a policy
is made “when a decisionmaker possess[ing] final authority to establish municipal policy
with respect to the action” issues a final proclamation, policy or edict. Pembaur v. City of
Cincinnati, 475 U.S. 469, 481 (1986). A custom, on the other hand, is an act “that has not
been formally approved by an appropriate decisionmaker,” but is “so widespread as to have
the force of law.” Bd. of the Cnty. Comm’rs v. Brown, 520 U.S. 397, 404 (1997). Bare
allegations of custom or policy, unsupported by evidence, are insufficient to entitle a plaintiff
to relief. Broyles v. Corr. Med. Servs., No. 08-1638, 2009 U.S. App. LEXIS 5494, at * 5
(6th Cir. Jan. 23, 2009).
Citing the precedent of a court appointed independent medical monitor in Hadix v.
Caruso, No. 92-110, Plaintiff asserts that CMS instituted an unconstitutional policy of
obtaining medication only from PharmaCorr and denying inmates medication until it could
be obtained from the same. See Docket no. 28, ex. P. Moreover, Plaintiff cites evidence
indicating that delivery from PharmaCorr was sometimes unreliable, resulting in delays in
receiving prescriptions. McCarthy Dep. Tr. 17, 67-69; Report by Nat. Comm. on Corr.
Health at 11 (docket no. 28, ex J). Plaintiff argues that as a result of this policy, Parsons
was denied Dilantin for at least four days, which resulted in his death.
Plaintiff has not demonstrated that CMS had a policy or custom that resulted in
Parsons’s injury. First, the only evidence of a formal policy relating to ordering and
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administering prescription medication pertains to MDOC policy.2 See 6/4/2009 Heebsh
Dep. Tr. 38. Further, while Plaintiff presents evidence that CMS had a contract with
PharmaCorr, that PharmaCorr was CMS’s preferred pharmacy, and that delivery from
PharmaCorr was sometimes unreliable, there is no evidence that CMS had a policy
requiring inmates to wait until prescriptions were received from PharmaCorr.
In fact, substantially all of the evidence demonstrates that medical staff at Standish
could obtain medication from other sources. According to Heebsh an “emergency stock”
of medication, including Dilantin, was kept in a box at Standish, that nurses were able to
access. 6/4/2009 Heebsh Dep. Tr. 20-21; see also Pausits Dep. Tr. 60; Alexander Dep.
Tr. 82. Moreover, when a prisoner arrived at Standish without medication, Heebsh wrote
“start today” on the inmate’s prescription, indicating that a few days worth of the medication
should be ordered from a local pharmacy, until PharmaCorr was able to send a supply of
the medication.3

Id. at 21, 32. And although Heebsh did not write “start today” on

Parsons’s Dilantin prescription, there is no evidence that she failed to do so because of

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MDOC policy states that in emergency situations, nurses are to consult with doctors
and obtain medication from the emergency drug kit or the physician’s box at Standish.
MDOC Operating Procedure OP-NRH 04-06-170A (docket no. 23, ex. F). The policy
further provides that during non-emergency situations when the pharmacy is not available,
nurses should obtain prescriptions from the emergency or physician’s box, or, if the inmate
will suffer adverse consequences as a result of not receiving his medication, obtain the
medication from an offsite pharmacy. Id. Moreover, where health care services are
delivered by a private vendor, such as CMS, the vendor must comply with all MDOC policy,
unless explicitly exempted by contract. MDOC Operating Procedure 03.04.100 (docket no.
23, ex. J).
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Dr. McCarthy followed this same protocol when ordering other medication for
Parsons. Dr. McCarthy testified that because it could take several days for prescriptions
to arrive from PharmaCorr, he ordered a five-day supply of medication from a local
pharmacy for Parsons. McCarthy Dep. Tr. 17.
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CMS policy. In fact, Heebsh ordered that Parsons should begin taking Dilantin on August
26, 2004, see Medical Records at 4 (docket no. 23, ex. A), and the Court agrees with
Magistrate Judge Morgan’s conclusion that there is no evidence Heebsh knew that Parsons
would not receive his medication that day.
Moreover, Plaintiff’s contention that inmates were required to wait until medication
was received from PharmaCorr is particularly unpersuasive given that Plaintiff’s claims
against Heebsh rest on the assertion that Heebsh could “override” CMS protocol and obtain
the medication from a local pharmacy. See Pl. Resp. Br. 16 (“Heebsh . . . failed to override
CMS’s protocol to specify to the nurses to order Parsons’ medication from the local
pharmacy.”). Plaintiff’s evidence that a medical monitor, evaluating a different prison
facility, found that the de facto policy at that facility was to wait until medication could be
obtained from PharmaCorr, see Report in Hadix v. Caruso (docket no. 28, ex. P), is
insufficient to create a material issue of fact in light of the evidence in this case.
Finally, there is also no evidence that Parsons’s death was directly attributable to a
delay in receiving Dilantin as a result of CMS policy.

Dilantin was received from

PharmaCorr on August 27, 2004 and, evidence demonstrates that it was administered to
Parsons on both August 27 and 28. See Medical Records at 7, 8; Pausits Dep. Tr. 43-44.
And while an autopsy of Parsons revealed no trace of Dilantin in Parsons’s system when
he died,4 whether the Standish medical staff failed to distribute Dilantin or whether Parsons
failed to take it, is irrelevant to the issue of CMS’s liability. While evidence supports the

4

According to testimony by Denise Bukacel, a clinical pharmacist, in order for there
to be no discernable trace of Dilantin in Parsons’s system when he died, Parsons must not
have ingested Dilantin for approximately 100 to 125 hours prior to his death. Bukacel Dep.
Tr. 33.
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conclusion that Parsons died from a seizure, Plaintiff has cited no evidence demonstrating
that the seizure would not have occurred but for the one day delay caused by ordering
Dilantin from PharmaCorr instead of from a local pharmacy. To assume that the one day
delay caused Parsons’s death is pure speculation, insufficient to survive a motion for
summary judgment. See Morris v. Oldham Cnty. Fiscal Court, 201 F.3d 784, 788 (6th Cir.
2000) (holding that the “mere existence of a scintilla of evidence in support of plaintiff’s
position will be insufficient” (quoting Anderson, 477 U.S. at 252)); cf. Napier v. Madison
County, 238 F.3d 739, 742 (6th Cir. 2001) (“[A]n inmate who complains that delay in
medical treatment rose to a constitutional violation must place verifying medical evidence
in the record to establish the detrimental effect of the delay in medical treatment to
succeed.” (internal citation omitted)).
B. Factual Objections
Plaintiff also objects to several of Magistrate Judge Morgan’s factual findings, and
argues that the magistrate judge did not adhere to the standards for granting summary
judgment because she took the evidence in a light most favorable to Defendants, not to
Plaintiff. The Court overrules all of Plaintiff’s factual objections for the reasons discussed
below.
In objection i, Plaintiff objects to Judge Morgan’s finding that “[t]he record does not
contain evidence that P.A. Heebsh knew that Parsons had not taken his medication prior
to his arrival at Standish.” R & R at 8. In support of her objection, Plaintiff cites evidence
demonstrating that Parsons arrived at Standish without his medication, and asserts that
Heebsh should have known, based on a review of Parsons’s chart, that he had not received
Dilantin since he left his previous facility. Moreover, Plaintiff contends that Heebsh’s
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reliance on Parsons’s statement that he was “taking his medications as directed” was
unreasonable in light of the fact that Heebsh noted that Parsons was “a poor historian,
histrionic with flight of ideas.” These arguments are without merit. Plaintiff’s contentions
rest on assumptions about what Heebsh should have known. To demonstrate that Heebsh
was deliberately indifferent, however, the relevant inquiry is what Heebsh actually knew.
Plaintiff must show that Heebsh subjectively perceived the facts giving rise to an inference
of a substantial risk to Parsons, and that she actually drew the inference. See Farmer v.
Brennan, 511 U.S. 825, 837 (1994). Plaintiff has failed to produce any evidence supporting
such a conclusion.
In objection ii, Plaintiff objects to Magistrate Judge Morgan’s conclusion that “[t]he
record does not contain evidence that P.A. Heebsh or anyone else at Standish was aware
that Parsons did not ingest the Dilantin after it was administered.” R & R at 44. In support,
Plaintiff cites evidence demonstrating that Heebsh failed to indicate “start today” on her
prescription, that she knew that the medication would take several days to arrive from
PharmaCorr, and that medication ordered from a local pharmacy arrived sooner than
medication ordered from PharmaCorr. Moreover, Plaintiff argues that prison records
demonstrating that Parsons was administered Dilantin on August 27 and 28 are suspect
in light of Parsons’s behavior and the toxicology report. Again, the evidence cited by
Plaintiff in support of her objection is misplaced.

Evidence pertaining to when the

medication arrived from PharmaCorr as compared to the local pharmacy has no bearing
on whether Heebsh and other medical staff at Standish knew that Parsons had not ingested

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Dilantin after it was administered.5 Moreover, although Parsons became ill and toxicology
reports showed no trace of Dilantin in his system at the time he died, Plaintiff has cited no
evidence to support a conclusion that Heebsh, who saw Parsons on only one occasion,
knew before his death that he had not ingested Dilantin.
In objection iii, Plaintiff objects to the magistrate judge’s assertion that “[i]n the event
that a medication was needed, and it could not be obtained through the normal methods,
the prison had a stock box of medications that the nurses could access.” R & R at 3.
Plaintiff argues that despite this conclusion, Heebsh could still be liable because her failure
to administer Dilantin to Parsons during her exam amounted to deliberate indifference. The
Court notes that although Plaintiff frames her objection as a factual one, in reality Plaintiff
objects to Magistrate Judge Morgan’s legal conclusions regarding whether Heebsh was
deliberately indifferent.

Plaintiff has again failed to cite any evidence, however,

demonstrating that Heebsh actually knew that Parsons faced an objectively serious risk of
harm if she did not administer Dilantin to him during her examination. Moreover, Heebsh
indicated on her prescription that Parsons’s Dilantin prescription should begin the same day
as the examination, and Plaintiff has not demonstrated that Heebsh knew Parsons would
not receive his medication that day.
In objection iv, Plaintiff objects to Magistrate Judge Morgan’s finding that “[i]n fact,
medications arrived from PharmaCorr and were dispensed to Parsons on August 27, 2004
. . . thus, there is no factual issue giving rise to a deliberate claim against P.A. Heebsh.”

5

Further, as discussed supra, the medication was received from PharmaCorr on
August 27, 2004, and Plantiff has not demonstrated that the one day delay in receiving
medication caused Parsons’s death.
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R & R at 9. Plaintiff asserts that there is no evidence that the medication was ever received
or administered to Parsons, which is attributable to Heebsh’s failure to ensure that the
prescription was ordered locally, instead of from PharmaCorr. Moreover, Plaintiff argues
that because the toxicology report demonstrates that Parsons did not have Dilantin in his
system when he died, whether Parsons was ever administered Dilantin while at Standish
is a question for the jury.
The Court overrules this objection for several reasons. First, contrary to Plaintiff’s
assertions, there is admissible evidence that Standish received Dilantin and that the MDOC
nurses administered it to Parsons. See Medical Records at 7, 8; Pausits Dep. Tr. 43-44.
Second, whether the medication was actually administered to Parsons by the MDOC
nurses is irrelevant to whether Heebsh was deliberately indifferent. And, moreover, the
Court has already rejected Plaintiff’s argument that whether Parsons was ever administered
Dilantin is a question for the jury. In its order adopting the report and recommendation in
Plaintiff’s prior case based on the same facts, the Court stated that “for a jury to find that
[MDOC Nurse] Pausits failed to administer Dilantin to Parsons, it would have to disregard
the documentary evidence demonstrating that Pausits administered Dilantin, not Wellbutrin,
and speculate about the possibility that Pausits administered the wrong medication. But,
even if there was a mix up, there is no evidence that a mix up would have been done with
deliberate indifference to the substantial risk of harm to Parson’s health.” See Case No.
07-13335, docket no. 140 (Mar. 31, 2010).
Accordingly, the Court overrules all of Plaintiff’s factual objections. The Court agrees
with the conclusion that summary judgment in favor of Heebsh is warranted.
ORDER
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WHEREFORE it is hereby ORDERED that the R&R (docket no. 32) is ADOPTED IN
PART, with modifications.
IT IS FURTHER ORDERED that Plaintiff’s objections to the R & R (docket no. 33) are
SUSTAINED IN PART and OVERRULED IN PART.
IT IS FURTHER ORDERED that Defendants’ motion for summary judgment (docket
no. 23) is GRANTED.
SO ORDERED.
s/Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
Dated: July 15, 2011
I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on July 15, 2011, by electronic and/or ordinary mail.
s/Carol Cohron
Case Manager

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