Wagle v. Michigan Department of Corrections et al

Filing 167

ORDER granting 145 Motion for Summary Judgment and dismissing Defendant Khan; rejecting 159 Report and Recommendation. Signed by District Judge Nancy G. Edmunds. (CHem)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

EDDIE WAGLE,
Case No. 10-10506
Plaintiff(s),
Honorable Nancy G. Edmunds
v.
CORRECTIONAL MEDICAL SERVICES,
INC. and ZAKIUDDIN KHAN, M.D.,,
Defendant(s).
/

OPINION AND ORDER REJECTING MAGISTRATE JUDGE’S MAY 12, 2012
REPORT AND RECOMMENDATION [159] AND GRANTING DEFENDANT KHAN'S
MOTION FOR SUMMARY JUDGMENT [145]

This matter comes before the Court on the Magistrate Judge’s May 12, 2012 Report
and Recommendation [159]. Being fully advised in the premises and having reviewed the
record and the pleadings, including Defendant Dr. Khan’s objections, REJECTS the
Magistrate Judge’s Report and Recommendation (“R&R”), and GRANTS Defendant Khan’s
motion for summary judgment [145].
I.

Analysis
The R&R recommends that Defendant Khan’s second motion for summary judgment

be denied because (1) procedurally, it was filed without first obtaining leave from the court
in violation of LR 7.1(b)(2); and (2) substantively, it fails to resolve the factual issues
remaining for trial. Defendant Khan filed timely objections arguing that (1) procedurally, he
filed his second motion for summary judgment based upon his understanding of the
Magistrate Judge’s November 30, 2011 scheduling order that provided a dispositive motion

cutoff of March 30, 2012 [Dkt. No. 119] and the grant of further discovery, including
Plaintiff’s deposition [Dkt. No. 132]; and (2) substantively, the second motion for summary
judgment relies on Plaintiff’s deposition testimony and argues that, based on that
testimony, Plaintiff cannot establish that Defendant Khan was deliberately indifferent to
Plaintiff’s serious medical needs on June 26, 2009. This Court finds Defendant Khan’s
objections are well taken.
First, because additional discovery was permitted, including Plaintiff’s deposition, and
a new cutoff date for dispositive motions was set, this Court finds that it was reasonable for
Defendant Khan to construe these actions as constituting leave to file a second motion for
summary judgment that raised new legal arguments in light of Plaintiff’s recent deposition
testimony.
Second, the R&R failed to fully consider the effect of Plaintiff’s deposition testimony
on his claim, brought pursuant to 42 U.S.C. § 1983, that Defendant Khan violated his
Eighth Amendment rights by being deliberately indifferent to Plaintiff’s serious medical
needs. Construing the evidence in the light most favorable to Plaintiff, he cannot establish
that Defendant Khan was both aware of facts from which the inference could be drawn that
a substantial risk of harm to Plaintiff existed if he waited 45 minutes to 1 hour before eating
lunch, and that Defendant Khan also drew that inference. Accordingly, Defendant Khan’s
motion for summary judgment [145] is granted.
Each day, Plaintiff went to the prison medical clinic and was administered insulin to
treat his Type II diabetes between 6:15 a.m. and 6:30 a.m. and between 4:30 a.m. and 5:00
p.m.

(Def.’s Mot., Ex. A, Pl.’s 1/14/12 Dep. at 17, 55.) Plaintiff also has a glucometer

available to him in his cell. (Id. at 17, 33.) Plaintiff has never been hospitalized as a result
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of a low blood sugar level. Typically, when his blood sugar level is low, he just “goes to
chow” and that usually corrects it. (Id. at 21, 31-32.)
On June 26, 2009, Plaintiff’s blood sugar level was 124 at 6:30 a.m. (Id. at 25.) Then,
at about 11:44 a.m., Plaintiff reported to the unit officer that his blood sugar level was 55
mg/dl and asked him to contact the prison medical clinic (referred to as “Healthcare”). (Id.
at 22.) Plaintiff started getting shaky and felt what he described as an adrenalin rush to his
heart, so he checked his glucometer. (Id. at 23, 37.) Plaintiff showed the glucometer with
the 55 reading to the unit officer who then called Healthcare. (Id. at 23, 57.) Plaintiff did
not personally talk to anyone at Healthcare, but was present and overheard the unit
officer’s conversation. (Id. at 23.) Plaintiff testified that he believed the other person on the
phone – Dr. Khan – told the unit officer to send him to eat, but the officer explained to Dr.
Khan that he couldn’t do that until after count time, which usually took between 45 minutes
to an hour. (Id. at 23-24.)
Q. Okay. What did the officer say occurred?
A. I was standing right there when he called.
Q. Well, what did you observe from listening to his end of the phone call?
A. He was talking to somebody on the other end of the line, and told them
that he had a diabetic there, Mr. Wagle, with blood sugar of 55, and he
didn’t have anything to eat or drink in his cell, what should he do.
Q. And what did the officer say Healthcare told him?
A. They conversed back and forth for – I don’t know how long, but he told
them – I believe the other person on the other line told him to send me
to eat. The officer explained I couldn’t because it was count time and
there wasn’t supposed to be any movement outside the unit.
Q. How long does count time typically last?

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A. At that time, they were taking up to an hour – 45 minutes to an hour.
Q. Okay. Do you remember how long after the officer called Healthcare on
June 26, 2009 until you got to go to chow?
A. No, I don’t.
Q. Okay. Do you know who specifically the doctor spoke to – I’m sorry, do
you know specifically who the officer spoke to in Healthcare?
A. He told me it was Dr. Khan.
Q. But you did not speak to Dr. Khan directly?
A. No.
(Pl.’s Dep. at 23-24). The unit officer recorded in the prison log book that at 11:44 a.m. on
June 26, 2009, “I tx’d H/C for Wagle 232438 who stated that his blood sugar was 55. Dr.
Kohn [sic] stated he would be ok for 45 minutes until he eats.” (Dkt. No. 1, Compl., Ex. J,
Grievance at 3.) In his affidavit, Defendant Kahn averred that:
I understand that Mr. Wagle claims that on June 26, 2009, he suffered an
episode of low blood sugar of 55, an officer contacted me concerning this level,
and I recommended that Mr. Wagle go eat in forty-five minutes. I do not recall
this incident . . . [h]owever, I have reviewed the grievance Mr. Wagle filed
concerning this matter and it is attached as “B.” While a number 55 mg/dl for
blood sugar is low, this number does not mean that the patient will suffer any
negative effects. When a patient is asymptomatic, the appropriate response to
cure low blood sugar is to eat, and in Mr. Wagle’s case he would be eating within
forty-five minutes. In my professional judgment, waiting forty-five minutes would
not lead to any negative results to a patient with blood sugar of 55 mg/dl,
certainly not coma or death as claimed by Mr. Wagle.
(Def.’s Mot., Ex. B., Khan Aff. at ¶ 11.)
There is no evidence disputing that, at the time the unit officer spoke with Defendant
Khan on June 26, 2009, Plaintiff was conscious, lucid and able to express that his blood
sugar was low and that he should eat soon. He had no medical history of hospitalizations
for low blood sugar episodes. That Plaintiff testified he subsequently got sweaty and
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confused before he got to go to chow does not address the facts known to Dr. Khan at the
time of the 11:44 a.m. communication with the unit officer. (Pl.’s Dep. at 37.) Moreover,
Plaintiff testified that, after he ate, he had a headache and generally did not feel well for the
rest of that day, but had no lasting health problem as a result of the June 26, 2009 low
blood sugar episode.
Q. Okay. Other than a headache and staying in your cell, did you have any
other symptoms or problems afterwards on June 26?
A. Well, I just felt sick, you know, just didn’t feel good.
Q. Okay. Were you all right the next day?
A. As far as I recall.
Q. Okay. Do you know if you had any long-term problems as a result of the
June 26th low blood sugar incident?
A. Not that I know of.
Q. Okay. Do you think right now you’re suffering any problems that may
have resulted because of the June 26th, 2009 incident?
A. I don’t know.
Q. Okay. Do you recall how soon after June 26, 2009 you went back to
Healthcare?
A. Well, if the incident happened during count, it would have been between
4:30 and 5:00 later on that day.
Q. Okay. Do you recall if you reported the lunchtime incident to Healtcare
when you went on the evening of June 26th?
A. I can’t recall if I did or not. There wouldn’t have been nobody to tell
except the nurse.
Q. But if you were still having problems, you could have spoken to the nurse
about it?
A. Yes.
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Q. Okay. And you don’t recall if you did?
A. No.
Q. Do you know if you spoke to anyone in Healthcare the next day or a
couple days later about the incident?
A. Not that I recall.
Q. Okay. So the only time you would have spoke to someone would have
been when Nurse Walker interviewed you about the grievance?
A. Possibly, yes.
(Pl.’s Dep. at 37-39.)
As the Sixth Circuit recently observed, a two-part test is used in evaluating the Eighth
Amendment rights of prisoners with serious medical needs. See Bruederle v. Louisville
Metro Gov't, ___ F.3d ___, 2012 WL 3000601, at *4 (6th Cir. July 24, 2012). Thus, Plaintiff
must first demonstrate "'the existence of a 'sufficiently serious' medical need.'" Id. (quoting
Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 895 (6th Cir. 2004)). "If a failure to treat a
particular condition would deny the inmate the minimal civilized measure of life's
necessities, it meets this 'objective' prong." Id. (internal quotation marks and citation
omitted). Under the second prong, Plaintiff "must show that the officials in question 'kn[ew]
of and disregard[ed] an excessive risk to inmate health and safety.'" Id. (quoting Farmer
v. Brennan, 511 U.S. 825, 837 (1994)). "'Deliberate indifference is characterized by
obduracy or wantonness -- it cannot be predicated on negligence, inadvertence, or good
faith error.'" Id. (quoting Reilly v. Vadlamudi, 680 F.3d 617, 624 (6th Cir. 2012)).
Plaintiff’s claim hinges on whether Dr. Khan’s decision that Plaintiff could delay eating
for 45 minutes to 1 hour while count was taken by jail officials represented deliberate

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indifference to his serious medical needs. This Court concludes that, viewing the evidence
in the light most favorable to Plaintiff, it did not.
Rather, the evidence, viewed in the light most favorable to Plaintiff, shows that Dr.
Khan recognized that Plaintiff's low blood sugar level presented at least some risk but, in
his medical opinion, a delay of 45 minutes to 1 hour before eating was reasonable and did
not create an excessive risk to Plaintiff's health. Based on the facts presented here, no
reasonable juror could find that Dr. Khan knew that Plaintiff required further attention.
Consequently, Plaintiff cannot establish the required subjective component of the Eighth
Amendment "deliberate indifference" test. See Farmer, 511 U.S. at 837 (observing that
"the official must be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference.") (emphasis
added). The essence of Plaintiff's argument is that Dr. Khan should have known that,
although he did not, he could have suffered serious medical consequences as the result
of the 45 minute to 1 hour delay in eating. As the Sixth Circuit observed in Bruederle, "that
is the language of medical malpractice, not deliberate indifference." Bruederle, ___ F.3d
at ___, 2012 WL 3000601 at *6 (citing Watkins v. City of Battle Creek, 273 F.3d 682, 686
(6th Cir. 2001)).
Further, to the extent Plaintiff claims that Dr. Khan was deliberately indifferent to the
physical consequences he suffered as a result of having to wait the 45 minutes to 1 hour
to eat, that claim is also dismissed. It is well-established in the Sixth Circuit "that an inmate
who complains that delay in medical treatment rose to a constitutional violation must place
verifying medical evidence in the record to establish a detrimental effect of the delay in
medical treatment to succeed." Id. at *7 (internal quotation marks and citations omitted).
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II.

Conclusion
For the above-stated reasons, the Magistrate Judge's May 15, 2012 Report and

Recommendation [159] is REJECTED, and Defendant Khan's motion for summary
judgment [145] is GRANTED.

s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: August 23, 2012
I hereby certify that a copy of the foregoing document was served upon counsel of record
on August 23, 2012, by electronic and/or ordinary mail.
s/Carol A. Hemeyer
Case Manager

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