Pasley v. Caruso, et al

Filing 193

ORDER adopting in part 189 Report and Recommendation; denying 165 Motion for Summary Judgment; denying 180 Motion for Summary Judgment. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LYNN T. PASLEY,

Case No. 10-11805
SENIOR UNITED STATES DISTRICT
JUDGE ARTHUR J. TARNOW

Plaintiff,
v.

U.S. MAGISTRATE JUDGE
MONA K. MAJZOUB

PATRICIA CARUSO, ET AL.,
Defendants.
/

ORDER ADOPTING IN PART REPORT AND RECOMMENDATION [189]; DENYING
DEFENDANT OUELLETTE’S MOTION FOR SUMMARY JUDGMENT [165]; AND
DENYING DEFENDANT WHITE’S MOTION FOR SUMMARY JUDGMENT [180]

Plaintiff, a prisoner of the state of Michigan, alleges that Defendants
Ouellette and White—among others—acted with deliberate indifference to his
serious medical needs, in violation of his Eighth Amendment right to be spared
cruel and unusual punishment. Defendant Ouellette filed a Motion for Summary
Judgment [165] on June 10, 2013. Defendant White filed a Motion for Summary
Judgment [180] on September 26, 2013.1 On November 13, 2013, the Magistrate
1

Defendant White styled her motion in the alternative, as either a motion for summary judgment
or a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). The Magistrate
Judge correctly characterized the motion as a motion for summary judgment.
1

Judge issued a Report and Recommendation (R&R) [189] recommending that the
Court deny Defendant Ouellette’s motion but grant Defendant White’s. Defendant
Ouellette filed Objections [191] on November 27, 2013. Defendant White filed an
Objection [192] the same day, arguing that the R&R should have identified an
additional reason for granting her motion.
The Court adopts the R&R’s analysis in part.

Accordingly, Defendant

Ouellette’s Motion for Summary Judgment [165] is DENIED. Contrary to the
R&R’s recommendation, Defendant White’s Motion for Summary Judgment [180]
is also DENIED.2
FACTUAL BACKGROUND
The Court adopts the following summary of the relevant facts, as set forth in
the R&R:
According to Plaintiff, on or about September 20, 2008, while
incarcerated at the Macomb Correctional Facility, Plaintiff first
complained of, and was examined for, a spot on his penis. (Docket
no. 27 ¶ 15.) Plaintiff’s medical records reflect that this complaint
was communicated on or around December 28, 2008. (Docket no.
181-1 at 111.) On January 5, 2009 former Defendant Geml performed
a visual examination of Plaintiff’s penis. (Id. at 110.) Geml’s notes
indicate that Plaintiff noticed the “rash” on his penis one or two weeks
2

In light of its recommendation that the Court grant Defendant White’s Motion for Summary
Judgment [180], the R&R further recommended that the Court deny as moot Defendant White’s
Motion to Compel Complete Answers to Interrogatories [175] and two related motions [182,
184]. Because the Court now denies Defendant White’s Motion for Summary Judgment, these
discovery motions are not moot. As stated in the R&R, the Magistrate Judge will issue a
separate opinion and order on the discovery motions.
2

earlier and that Plaintiff did not complain of any pain. (Id.) Geml
diagnosed Plaintiff with hypopigmentation and prescribed a
hydrocortisone cream. (Id.)
On February 12, 2009 Plaintiff was seen by former-Defendant
Noronha, whom Plaintiff alleged examined Plaintiff’s penis,
discontinued the hydrocortisone cream use, and did not put in place
another treatment plan. (Docket no. 27 ¶ 18.) Plaintiff’s medical
records, however, reflect that Dr. Noronha saw Plaintiff with regard to
his hypertension and hyperlipidemia. (See docket no. 181-1 at 10209.) Dr. Noronha’s notes neither indicate that Plaintiff discussed the
spot on his penis with her, nor that she examined his penis. (See id.)
The next day, Plaintiff was transferred to the Adrian Temporary
Correctional Facility (ATF), where Plaintiff alleges that he explained
to the intake nurse that his condition had worsened. (Docket no. 27 ¶
19.) Plaintiff maintains that the intake nurse told him that she would
put him on a list to see the doctor. (Id.) While the intake nurse did
order follow-up visits for Plaintiff on February 18, 2009, these visits
are listed as “new transfer” visits with a nurse and with Defendant
White; her notes do not mention any complaints by Plaintiff regarding
his penis. (Docket no. 181-1 at 99-101.)
On February 19, 2009, Plaintiff had a follow-up appointment
with a nurse, who performed what appears to have been a full physical
examination of Plaintiff. (See id. at 95-97.) Plaintiff does not appear to
have discussed his penile issues with this nurse, but the nurse did note
that a “Scan of Skin” revealed no genital ulcers and no urethral
discharge. (Id. at 96.) Plaintiff reported to the ATF clinic on February
24, 2009 for a complaint of low blood sugar. (Id. at 92.) Plaintiff did
not mention any problems with his penis, but he did indicate that “his
medications were changed before he [was transferred to ATF], and he
wants to discuss his medications with the MP ([Defendant White]).”
(Id.) At that time, Plaintiff was scheduled to see Defendant White
three days later. (Id.)
In his Amended Complaint, Defendant alleges that he was seen
by Defendant White on March 3, 2009. (Docket no. 27 ¶ 20.) It
appears, however, that Defendant White did not see Plaintiff until
later in March. On March 7, 2009 Plaintiff sent a kite complaining
that he still hadn’t met with Defendant White and that his blood
pressure medication had not been refilled since he was transferred.
3

(See docket no. 181-1 at 91.) Plaintiff was told that his medications
would be refilled and that he was “on [the] list to be seen” by
Defendant White. (Id.)
Plaintiff met with Defendant White on March 20, 2009. (Id. at
79-89.) Plaintiff states that “[i]t was [his] understanding that [he] was
seeing [Defendant] White that day based on [his] earlier requests to
see medical staff for the penis pain.” (Docket no. 186-6 at 4.) In
Plaintiff’s Amended Complaint, he alleged that he told Defendant
White that his condition had worsened and that the spot that was once
small had spread over the entire head and foreskin of his penis, the
pain had become unbearable, and the small spot had started bleeding.
(Docket no. 27 ¶ 21.) In his Amended Complaint, Plaintiff alleged that
Defendant White did not perform a visual examination or provide any
treatment. (Id.) Plaintiff further alleged that Defendant White stated
that she would see Plaintiff at a later time about his condition. (Id. ¶
22.)
In his Response to Defendant White’s Motion, however,
Plaintiff states that “[a]s a result of my telling [Defendant] White of
my penis pain, she examined it,” but she “did not want to deal with
the penis pain,” and “her refusal to provide medical care for the penis
pain” caused him to continue to suffer. (Id. at 3-4.) Defendant White
contends that Plaintiff “made no complaints to [her] regarding his
penis, penile discoloration, and/or penile pain,” and that “[h]ad [he]
made such complaints, [she] would have documented them in the
medical record . . . and addressed [them].” (Docket no. 180-3 at 4.)
The records from Plaintiff’s appointment with Defendant White show
that she performed a full examination of Plaintiff in the
Cardiovascular and Endocrine Clinics, but the records do not include
any mention of Plaintiff’s penile pain, discoloration, or discomfort.
(See docket no. 181-1 at 79-89.) This was Defendant White’s only
involvement with Plaintiff; on April 1, 2009, Defendant White was
transferred to another MDOC facility. (Docket no. 180-3 at 4.)
Plaintiff alleges that on April 2, 2009, former-Defendant
Kakani examined Plaintiff’s penis but did not make any diagnosis or
set up a treatment plan. (Docket no. 27 ¶ 23.) Plaintiff also alleges that
he told Kakani about his pain and also discussed with her the alleged
referral for a biopsy that Geml had suggested. (Id.) Plaintiff states that
Kakani said she would submit a request for the biopsy. (Id.)
4

According to Plaintiff’s medical records, this examination occurred on
April 13, 2009, but Kakani only issued a consultation request. (Docket
no. 181-1 at 67, 70.) The consultation-request form noted that the spot
on Plaintiff’s penis is a “1 cm hypopigmented [a]rea on the penis
[with] no crust [and] no drainage.” (Id. at 67.) She requested that the
consultation be performed within one month. (Id. at 68.) It does not
appear that this consultation ever occurred, but a note from April 16,
2009, indicates that the request “needs to be resubmitted with
description of lesion on penis & duration.” (Docket no. 167. at 12.)
Kakani appears to have amended the request to note that “pt lesion is
as discribed (sic) aboe (sic) has for more than month (sic).” (Id. at 20.)
On June 24, 2009, Plaintiff was transferred to the Adrian
Regional Correction Facility (ARF). (Docket no. 27 ¶ 24.) Plaintiff
alleges that when he moved to ARF, he told the intake nurse about his
condition, and he alleges that she told him that she would place his
name on the list to see the doctor or physician’s assistant. (Docket no.
27 ¶ 24.) The first record from Plaintiff’s care at ARF that was
provided to the Court shows a full examination by former-Defendant
Jindal but, like previous records, does not indicate that Plaintiff
discussed his penile pain or discoloration. (See docket no. 181-1 at 1928.)
On July 17, 2009, Plaintiff was transferred to the Florence
Crane Correctional Facility (AFC). (Id. ¶ 26.) He states that, upon his
arrival there, he immediately informed the intake nurse of his
condition. (Id.) He states that the intake nurse informed Plaintiff that
she would put him on the doctor or physician assistant list. (Id.)
Again, however, the health-care screened forms completed by the
nurse at ARF and at AFC do not indicate that Plaintiff complained of
his penile pain or discoloration. (See docket no. 167 at 31-36.) At the
time of his arrival at AFC, Defendant Ouellette3, a licensed Physician
Assistant, was assigned as his medical provider. (Id. at 35.)
On July 28, 2013, Plaintiff refused all medication from AFC.
(See docket no. 181-1 at 15.) On July 31, a note in Plaintiff’s medical
record indicates that Plaintiff “[d]oes not want medical care from this
3

The R&R consistently referred to Defendant Ouellette as Defendant “Ouelette.”
For simplicity’s sake, the Court has corrected the spelling of Defendant Ouellette’s
name without the customary use of brackets.
5

facility” and that he had refused several of his medications. (Docket
no. 167 at 37.) Plaintiff alleges that he did not see the doctor
promptly, so he submitted a health care request and refused all of his
medications until a doctor would see him. (Docket no. 27 ¶¶ 27-29.)
On August 4, 2009, Defendant Ouellette scheduled an appointment
“to discuss refusal of medications,” which was set for “approximately
8/21/2009.” (Docket no. 167 at 38-39.) And on August 6, 2009,
Plaintiff submitted a kite stating, “I am experiencing serious pain
around the foreskin and the head of my penis” and noting that he was
supposed to have been put on a call out list to see a doctor regarding
this issue. (Docket no. 27 at 12.) Plaintiff received a response telling
him that he was scheduled to see his provider “about this complaint.”
(Docket no. 27 at 12, 13.) On August 21, 2009, Plaintiff again sent in
a kite noting that he is “experiencing serious pain on [his] penis the
foreskin and head which has turned colors.” (Id. at 15.) He received a
response on August 25, 2009, indicating that his appointment was
scheduled for the next day. (Id. at 16.)
On August 26, 2009, Plaintiff met with Defendant Ouellette.
(Docket no. 181-1 at 40-42.) Plaintiff “believed he was finally going
to receive care for his penis and the severe pain, in part, because he
was scheduled to see his medical provider.” (Docket no. 170-1 at 7.)
Plaintiff states that Defendant [Ouellette] was only concerned with
him signing a form “waiving any liability against the medical staff”
and that the appointment ended without an examination. (Id.; see also
docket no. 27 ¶¶ 36-38.) The notes from Plaintiff’s appointment with
Defendant Ouellette indicate that Plaintiff voiced his complaint over
his “other concerns [not being] addressed” and the facility “neglecting
his medical needs.” (Docket no. 167 at 40.) Defendant Ouellette also
noted that Plaintiff “has sent a kite indicating he has penile pain and
discoloration.” (Id.) Defendant Ouellette informed Plaintiff of the
risks in refusing to take his medications and noted that she would
“[r]efer to [Dr. Raymond] Gelabert for evaluation of penile pain and
discoloration.” (Id. at 41.) Plaintiff did not sign the waiver. (Id. at 42.)
This was Plaintiff’s only involvement with Defendant Ouellette.
Dr. Gelabert performed an examination of Plaintiff the next day
and prescribed a steroid cream. (Id. at 43.) Dr. Gelabert’s notes
indicate that Plaintiff had “a small irritation on the skin” of his penis
for “about one year.” (Id.) He indicated that the affected area included
6

“two localized spots of irritated, fissured skin, of irregular border, one
localized right behind the superior mid gland and the other on the
[left] side close to where the penis shaft starts.” (Id.) Dr. Gelabert
noted that there was “no discharge or bleeding” and opined that “[t]he
white skin was very typical of Vitiligo.” (Id.) Plaintiff states that Dr.
Gelabert questioned why Plaintiff had waited so long to get a
diagnosis or a treatment plan (docket no. 27 ¶ 38), but Dr. Gelabert’s
notes acknowledge that Plaintiff had treated with a hydrocortisone
cream for about a month with no improvement and that a biopsy had
been scheduled in April 2009 (docket no. 167 at 43).
Dr. Gelabert prescribed Plaintiff a group V steroid cream and
noted that if the cream did not help, he would refer Plaintiff for a
biopsy and further management with a dermatologist. (Id.) Plaintiff
had a biopsy on September 4, 2009 (see id. at 44), which returned a
result of “Chronic Inflammation and reactive change” (see id. at 48).
Dr. Gelabert diagnosed Plaintiff with Foreskin Hypopigmentation and
told Plaintiff that the color may never return to normal or may take a
very long time to improve. (Id.)
On September 26, 2009, Plaintiff again refused all of his
medications, at which time he met with Dr. Gelabert to discuss his
refusal. (Id. at 50-51.) At that time, Dr. Gelabert noted that Plaintiff’s
“Penis discoloration” was stable. (Id. at 51.) By May 2011, Plaintiff’s
condition had deteriorated and his symptoms were “getting worse
from the medical treatment.” (Docket no. 165-2 at 59.) On June 6,
2011, Plaintiff told his then-treating physician at the MDOC Bureau
of Health Care Services that he had “burning pain over the foreskin”
and that the creams he had been prescribed were not working, so he
requested a circumcision. (Id. at 61.) Plaintiff’s request appears to
have initially been denied because on July 21, 2011, Plaintiff was still
complaining to his physician that he was only receiving a cream,
which was not working. (Id. at 64.) On October 4, 2011, Plaintiff was
ultimately diagnosed with Bilantis Xerotica Obliterans (BXO), a
chronic, progressive disease that is commonly treated by
circumcision. (See id. at 69.) Plaintiff was circumcised on January 18,
2012. (See docket no. 165-5.)

7

LEGAL STANDARDS
The Court reviews objections to an R&R on a dispositive motion de novo.
28 U.S.C. § 636(b)(1)(C). “A judge of the court may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate judge.”
Id.
Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c). The moving
party has the burden of establishing that there are no genuine issues of material
fact, which may be accomplished by demonstrating that the nonmoving party lacks
evidence to support an essential element of its case. Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). The Court must construe the evidence and all reasonable
inferences drawn therefrom in the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
A genuine issue for trial exists 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).

8

ANALYSIS
Prison medical providers violate the Eighth Amendment when they act with
deliberate indifference to prisoners’ serious medical needs. Santiago v. Ringle,
734 F.3d 585, 590 (6th Cir. 2013) (citing Estelle v. Gamble, 429 U.S. 97, 104
(1976)). A deliberate indifference claim has both an objective prong and a
subjective prong. Id. (citing Comstock v. McCrary, 273 F.3d 693, 702 (6th Cir.
2001)). The Sixth Circuit has recently summarized the objective prong as follows:
The objective component requires a plaintiff to prove a sufficiently
serious medical need, which is one that has been diagnosed by a
physician as mandating treatment or one that is so obvious that even a
lay person would easily recognize the necessity for a doctor’s
attention. If the plaintiff’s claim, however, is based on the prison’s
failure to treat a condition adequately, or where the prisoner’s
affliction is seemingly minor or non-obvious, the plaintiff must place
verifying medical evidence in the record to establish the detrimental
effect of the delay in medical treatment.
Id. (internal citations and quotation marks omitted). To satisfy the subjective
prong, a plaintiff must show that the defendant “(1) subjectively perceived facts
from which to infer substantial risk to the prisoner, (2) did in fact draw the
inference, and (3) then disregarded that risk.” Id. at 591 (quoting Comstock, 273
F.3d at 703).
While a prisoner, Plaintiff suffered chronic pain in his penis and eventually
was diagnosed with balanitis xerotica obliterans (BXO). He claims that his
9

condition constituted a “serious medical need” at the time of his medical
appointments with Defendants White and Ouellette. He further claims that
Defendants White and Ouellette knew of this need but consciously disregarded it.
Defendants have both moved for summary judgment. The Court will address
Defendants’ motions separately.
I.

Defendant Ouellette’s Motion for Summary Judgment
The R&R recommended that the Court deny Defendant Ouellette’s Motion

for Summary Judgment [165].

Ouellette’s motion effectively concedes that

Plaintiff has raised a genuine issue of material fact on the objective prong of his
claim against her, acknowledging that it is “arguable” whether Plaintiff’s condition
constituted a serious medical need at the time of his appointment with Ouellette.
Accordingly, the R&R found the objective prong satisfied for purposes of this
motion.

The R&R also concluded that Plaintiff has raised genuine issues of

material fact on the subjective prong. First, the R&R found that there was a
genuine issue of material fact regarding whether Ouellette knew of Plaintiff’s pain
when she met with him. Second, accepting Ouellette’s assertion that she arranged
Plaintiff’s next-day appointment with Dr. Gelabert, the R&R determined that even
this one-day delay in treatment could constitute deliberate indifference if it were
found to be based in a retaliatory motive rather than Ouellette’s medical judgment.
10

Defendant Ouellette objects to the R&R’s conclusions on the subjective
prong. First, she argues that she did not know Plaintiff had been suffering penile
pain at the time of her appointment with him—essentially arguing that she did not
believe his complaints.

Second, she argues that she adequately responded to

Plaintiff’s medical needs by arranging his next-day appointment with Dr. Gelabert.
She characterizes her expedited scheduling of an appointment with Dr. Gelabart as
a “treatment plan,” rather than a denial of or delay in treatment, and points out that
a prisoner’s mere dissatisfaction with treatment does not give rise to a
constitutional claim.
The Court finds Defendant Ouellette’s objections unpersuasive.

A

reasonable jury could find that Ouellette knew of Plaintiff’s pain. Further, the jury
could find that Ouellette, in retaliation for Plaintiff’s refusal to sign a release of
liability, not only refused to treat Plaintiff herself but also chose to make Plaintiff
wait approximately two weeks for his next appointment—an unreasonable delay in
treatment averted only by the intervention of a third party.

Accordingly,

Defendant Ouellette’s Motion for Summary Judgment must be denied.4

4

Defendant Ouellette also objects that the R&R improperly considered Plaintiff’s amended
response [170-1] without allowing Ouellette to file an amended reply. Plaintiff’s amended
response does not cite any document that was not already in the record, but does contain a few
extra pages of argument concerning the purported purpose of Defendant Ouellette’s meeting with
Plaintiff. The Court did not consider the added argument in reaching its conclusion on
Defendant Ouellette’s Motion for Summary Judgment [165]. Further, Ouellette could not have
11

A.

Knowledge of Plaintiff’s Serious Medical Need

The R&R concluded that Plaintiff has raised a genuine issue of material fact
regarding whether Defendant Ouellette knew Plaintiff’s pain complaint reflected a
serious medical need when she deferred treatment. The R&R identified three
pieces of supporting evidence for this conclusion.

First, Defendant Ouellette

reviewed Plaintiff’s file approximately three weeks before the meeting,
presumably noticing records in his file regarding his penis pain. Second, Plaintiff
sent two kites complaining of his pain shortly before the meeting.

Finally,

Ouellette’s own notes concerning the meeting indicate that Plaintiff told her of his
pain, explaining that he refused to take his medication because the prison was not
treating it.
Defendant Ouellette essentially argues that she did not know the seriousness
of Plaintiff’s medical need because she did not believe Plaintiff’s pain complaints.
She suggests that even if she saw notes regarding Plaintiff’s pain during her review
of his file, she could not have remembered those notes at the time of the meeting
unless she were “practically omniscient.” She also claims that the record contains
no indication that she was aware of Plaintiff’s kites concerning his pain. However,
the notes Ouellette prepared immediately after her meeting with Plaintiff—
raised any argument in an amended reply that she could not have raised in her Objections [191].
The Court therefore finds Defendant Ouellette’s objection moot.
12

arguably the most probative piece of evidence in the record regarding Ouellette’s
knowledge on that day—plainly state that Plaintiff had filed a kite complaining of
pain in his penis. Finally, she claims that Plaintiff did not present objective clinical
signs of pain during the meeting, suggesting that she therefore believed his
condition was actually painless.
The Court does not engage in factfinding on a motion for summary
judgment.

Accordingly, the R&R did not “impute” knowledge to Defendant

Ouellette, as she claims. The R&R merely concluded that, on the current record, a
reasonable jury could find that Ouellette knew Plaintiff had been suffering
significant pain. The Court agrees with this conclusion. A reasonable jury may or
may not credit Ouellette’s claim that she believed Plaintiff was merely
experiencing a painless rash or discoloration, despite his willingness to forego
medication to obtain treatment. The Court is not entitled to deprive the jury of
responsibility for that decision.

B.

Disregard of Plaintiff’s Serious Medical Need

The Court need not decide—as the R&R did—whether the next-day referral
Defendant Ouellette clams to have arranged could constitute a delay or denial of
treatment sufficient to constitute deliberate indifference.
13

Drawing reasonable

inferences in Plaintiff’s favor, there is a genuine issue of material fact regarding
whether Ouellette actually arranged for Dr. Gelabert to examine Plaintiff’s penis
on an expedited basis. A reasonable jury could conclude instead that Ouellette
refused to personally treat Plaintiff’s serious medical need despite believing he
would not be seen by another doctor until approximately two weeks later. The jury
could conclude that this refusal constituted deliberate indifference. See Blackmore
v. Kalamazoo Cnty., 390 F.3d 890, 899–900 (6th Cir. 2004) (holding that where a
plaintiff’s deliberate indifference claim arises from a condition obviously requiring
medical attention, the plaintiff need only show he actually experienced the need
and it was not addressed within a reasonable time frame).
Plaintiff has offered evidence undermining Defendant Ouellette’s claim that
she arranged his next-day appointment with Dr. Gelabert.

At his deposition,

Plaintiff testified that Ouellette did not tell him she would schedule an appointment
regarding his pain, let alone expedite such an appointment. He further testified that
he complained to Deputy Warden Klee about Ouellette’s refusal to treat him; that
Klee responded he would take care of the situation; and that Klee told Plaintiff the
next day that he had taken care of it and Plaintiff would be scheduled to see a
doctor. The prison’s records contain additional circumstantial evidence. Plaintiff
filed a grievance against Defendant Ouellette on August 29, 2009, describing their
14

meeting much as he now describes it.

Plaintiff appealed the denial of this

grievance, and the first-step denial of his appeal stated that Ouellette had not
examined his penis because an appointment regarding his pain had been scheduled
for September 9, 2009—approximately two weeks after his meeting with Ouellette.
In fact, when Ouellette recorded her plan to refer Plaintiff to Dr. Gelabert for an
examination of his penis, she wrote the following directly beneath that plan: “MSP
[Medical Service Provider] visit approximately 09/09/2009.”
On the basis of this evidence, a reasonable jury could find the following:
Defendant Ouellette knew that Plaintiff was refusing medication in protest of the
prison’s delay in treating his painful condition. She therefore knew that if she
examined Plaintiff’s penis, she would alleviate his concerns and likely convince
him to resume taking his medication.5 She further knew, as she explained to
Plaintiff, that his refusal of medication could endanger his health. However, her
overriding concern regarding that health risk was the chance that it would result in
liability for the prison and possibly herself. Therefore, her priority was to obtain
Plaintiff’s consent to a release of liability, resulting in conflict when Plaintiff
refused. In retaliation for Plaintiff’s refusal to sign the release, she declined to
examine his penis or to inform him that she would schedule an exam—thus leaving
5

Indeed, Dr. Gelabert’s notes indicate that Plaintiff decided to resume taking his medication as
soon as the doctor examined him.
15

intact his reasons for refusing medication. She referred Plaintiff to Dr. Gelabert for
an exam approximately two weeks later, knowing Plaintiff would suffer from his
condition and likely continue refusing medication in the interim. Dr. Gelabert
examined Plaintiff the next day only because Deputy Warden Klee intervened.
In sum, a reasonable jury could conclude that Defendant Ouellette knew
Plaintiff was suffering persistent, substantial pain in his penis but delayed
treatment for approximately two weeks for non-medical reasons. The jury could
therefore conclude that Ouellette acted with deliberate indifference. Blackmore,
390 F.3d at 899 (“When prison officials are aware of a prisoner’s obvious and
serious need for medical treatment and delay medical treatment of that condition
for non-medical reasons, their conduct in causing the delay creates [a]
constitutional infirmity.”). Plaintiff has thus raised a genuine issue of material fact
on both the objective and subjective prongs of his claim against Ouellette.
II.

Defendant White’s Motion for Summary Judgment
The R&R recommended that the Court grant Defendant White’s Motion for

Summary Judgment [180]. The R&R reasoned that although Plaintiff has raised a
genuine issue of material fact on the objective prong, he has failed to do so on the
subjective prong. Specifically, the R&R concluded that Plaintiff has failed to raise

16

more than a metaphysical doubt as to whether White knew of his pain complaints
at the time of her appointment with Plaintiff.
In her Objection [192], Defendant White does not contest the R&R’s
conclusion that her motion should be granted. She objects, however, to the R&R’s
conclusion that Plaintiff has raised a genuine issue of material fact on the objective
prong. She argues that the R&R failed to assess the seriousness of Plaintiff’s
medical needs at the time she allegedly disregarded them. According to White, the
R&R impermissibly relied on a diagnosis and symptoms that developed or
occurred only after White’s single meeting with Plaintiff.
The Court is not persuaded by Defendant White’s Objection, and therefore
agrees with the R&R that Plaintiff has raised a genuine issue of material fact on the
objective prong of his claim against White. The Court disagrees with the R&R,
however, regarding the subjective prong. Because Plaintiff has raised genuine
issues of material fact on both the objective and subjective prongs of his deliberate
indifference claim, Defendant White’s Motion for Summary Judgment must be
denied.
A.

Objective Prong

The R&R concluded that Plaintiff has raised a genuine issue of material fact
on the objective prong. The R&R reasoned that Plaintiff has been diagnosed with
17

BXO by a physician and that even a lay person would recognize the need for
medical attention to complaints of serious pain, cracking, and bleeding of the
penis.

Defendant White objects that Plaintiff’s complaints of serious pain,

cracking, and bleeding were not recorded in his medical records until after her
single meeting with Plaintiff on March 20, 2009. She further points out that
Plaintiff was not diagnosed with BXO until more than two years after she met him.
She argues that Plaintiff has therefore failed to raise a genuine issue of material
fact regarding whether his penis condition was a serious medical need at the time
she met him.
The Court disagrees. It is true that Plaintiff’s medical records do not show
that Plaintiff complained of penile pain prior to his transfer to the Adrian
Temporary Correctional Facility (ATF), or during his incarceration there.
However, Plaintiff has alleged that upon arrival at ATF, he complained to an intake
nurse that his condition had seriously worsened. He has further alleged that during
his meeting with Defendant White, he told her that his penis was bleeding and he
was experiencing unbearable pain. Further, a physician’s record from November
2011 identifies a presumed diagnosis of BXC and indicates that Plaintiff’s signs
and symptoms began around January 1, 2008—more than a year before his
meeting with Defendant White.
18

This evidence does not conclusively establish that Plaintiff suffered serious
pain, cracking, and/or bleeding of the penis in March 2009. But a reasonable jury
could reach that conclusion. As the R&R concluded, such symptoms constitute a
serious medical need because even a lay person would recognize that they require
medical attention. See Blackmore, 390 F.3d at 899–900. Therefore, Plaintiff has
raised a genuine issue of material fact on the objective prong.
B.

Subjective Prong

The R&R concluded that Plaintiff has failed to raise a genuine issue of
material fact regarding whether White, at the time of her meeting with Plaintiff,
knew of his serious medical need. The R&R acknowledged that Plaintiff claims he
told White about his pain and that White claims the opposite, creating the type of
“he-said-she-said” dispute that typically precludes summary judgment. However,
the R&R found Plaintiff’s account of the meeting less credible, reasoning that the
medical records do not state that Plaintiff complained of his pain to White or to any
other medical provider at ATF. The R&R therefore discredited Plaintiff’s claim to
have complained to White about bleeding and unbearable pain, concluding that
Plaintiff’s allegation raised no more than a metaphysical doubt as to White’s
knowledge of his condition.

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The Court disagrees with the R&R.

Drawing reasonable inferences in

Plaintiff’s favor, a reasonable jury could conclude the following: Plaintiff informed
an intake nurse of his pain upon arrival at ATF, as he claims he did. The nurse did
not mention the pain in her notes because it was her practice to describe new
transfer appointments simply as new transfer appointments, rather than specifying
the transferred prisoner’s complaints. Plaintiff’s conversation with the intake nurse
nevertheless led him to expect an upcoming appointment focused on his penis
condition, and so he did not discuss his pain during appointments for unrelated
matters.

Plaintiff believed his appointment with White was the promised

appointment regarding his pain, and accordingly told White about his pain during
their meeting.

Defendant White nevertheless did not record Plaintiff’s pain

complaints in her notes regarding the meeting.
The R&R identified considerable evidence supporting Defendant White’s
account of her meeting with Plaintiff. However, the evidence is not so one-sided
as to justify this Court finding, before this case reaches a jury, that White is honest
and Plaintiff is lying. A reasonable jury could conclude that Defendant White
knew of Plaintiff’s serious medical need at the time of their meeting because
Plaintiff told her about it, as he claims. It is undisputed that White did not treat

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that need. Therefore, Plaintiff has raised a genuine issue of material fact on the
subjective prong of his claim against White.
CONCLUSION
For the foregoing reasons,
IT IS ORDERED that the Magistrate Judge’s Report and Recommendation
[189] is ADOPTED IN PART.
IT IS FURTHER ORDERED that Defendant Ouellette’s Motion for
Summary Judgment [165] is DENIED.
IT IS FURTHER ORDERED that Defendant White’s Motion for
Summary Judgment [180] is DENIED.
SO ORDERED.

Dated: November 18, 2014

s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge

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