Washington v. Jenkins et al

Filing 128

OPINION AND ORDER Granting 126 Objections to Report and Recommendation filed by Jerry Washington, Rejecting 125 REPORT AND RECOMMENDATION re 114 MOTION for Summary Judgment and Denying 114 MOTION for Summary Judgment Pursuant to FRCP 56 filed by Eddie James Jenkins. Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JERRY WASHINGTON,
Plaintiff,
MICHIGAN DEPARTMENT OF
COMMUNITY HEALTH

Case No. 10-cv-12233

Paul D. Borman
United States District Judge

Intervenor,
v.

Elizabeth A. Stafford
United States Magistrate Judge

DR. EDDIE JAMES JENKINS,
Defendant.
_____________________________/
OPINION AND ORDER (1) GRANTING PLAINTIFF’S OBJECTIONS (ECF NO. 126);
(2) REJECTING THE MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION (ECF NO. 125); AND
(3) DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (ECF NO. 114)
On February 9, 2015, Magistrate Judge Elizabeth A. Stafford issued a Report and
Recommendation in favor of granting Defendant Dr. Eddie James Jenkins’ Motion for Summary
Judgment (ECF No. 114). (ECF No. 125, Report and Recommendation). Plaintiff Jerry
Washington filed a timely Objection to the Report and Recommendation dated February 23,
2015. (ECF No. 126). Thereafter, Defendant filed a Response to Plaintiff’s Objection. (ECF
No. 127).
This Court reviews de novo the portions of a report and recommendation to which
objections have been filed. 28 U .S.C. § 636(b)(1); FED. R. CIV. P. 72(b). Having conducted a
de novo review of the parts of the Magistrate Judge’s Report and Recommendation to which
valid objections have been filed pursuant to 28 U.S.C. § 636(b)(1), the Court will reject the
Report and Recommendation, grant Plaintiff’s objections, and deny Defendant’s motion for

summary judgment.
I. PERTINENT PROCEDURAL HISTORY
Plaintiff brought this action in June 2010 against a number of defendants. (ECF No. 1).
Thereafter, on February 13, 2013, Plaintiff filed an Amended Complaint against only Defendant,
setting forth a claim pursuant to 28 U.S.C. § 1983 and alleging Defendant was deliberately
indifferent to his serious medical needs in violation of Plaintiff’s Eighth Amendment rights.
Plaintiff and Defendant both retained expert witnesses during the pendency of this
action.1 However, after Plaintiff filed his Response to this Motion for Summary Judgment,
Defendant filed a Motion to Strike portions of Plaintiff’s expert opinion as inadmissible pursuant
to Fed. R. Evid. 704. (ECF No. 120). Plaintiff failed to respond to Defendant’s Motion to
Strike. Thereafter, on January 30, 2015, Magistrate Judge Stafford granted Defendant’s Motion
to Strike Plaintiff’s Expert Opinion and held that Plaintiff could not rely upon Wayne Gradman,
M.D.’s expert opinion to the extent that he concluded that: (1) medical care was “intentionally
denied” to Plaintiff, (2) Defendant acted “with callous indifference or cruel and unusual
punishment”, (3) Defendant “needlessly and callously withheld” medical care from Plaintiff; (4)
Defendant had a “callous disregard” of Plaintiff; and (5) “displayed callous indifference to Mr.
Washington’s serious medical condition”. (ECF No. 124, at 2). Plaintiff did not object to the
Magistrate Judge’s order.

1

The Court notes that Plaintiff was allowed to substitute Wayne Gradman, M.D. as his
expert witness in place of his previously designated expert witness, M. Wayne Flye, M.D., after
Dr. Flye retired and voluntarily surrendered his medical license. (ECF No. 101, Order granting
Motion to Substitute Sole Expert Witness).
2

II. BACKGROUND
Plaintiff’s action is based on incidents that occurred between April 2007 through July
2007. During that time period, Plaintiff was 54 years old and a prisoner in the custody of the
Michigan Department of Corrections. Plaintiff had previously been diagnosed with peripheral
vascular disease (“PVD”) in his lower extremities and received a femoral-popliteal bypass graft
in 2005. (Def.’s Mot., Ex. A, Medical Records, 1-7; Pl.’s Resp., Ex. A, Washington Aff. ¶¶ 1-3).
Plaintiff had a history of uncontrolled diabetes. (Medical Records, at 8-15).
In April and through May 2007, Plaintiff’s Medical Service Provider (“MSP”) was
Kenya Everette, M.D., an independent contractor physician with Correctional Medical Services,
Inc. (“CMS”).2 During those months, Plaintiff submitted multiple kites regarding pain he felt in
his feet and toes and complained his legs were cramping. (Id. at 8-20). Eventually, on May 1,
2007, Dr. Everette examined Plaintiff who complained that he had pain similar to “frostbite”, felt
like he was “walking on nerves”, and noted the pain diminished but not completely resolve when
he was at rest. After the exam, Dr. Everette sent Plaintiff to Foote Hospital for an “urgent
venous study”. (Id., at 21). An ultrasound was conducted and ruled out a deep venous
thrombosis but demonstrated an “occlusion” or blockage of Plaintiff’s right femoral-popliteal
bypass graft. (Id. at 22).
On May 2, 2007, Dr. Everette submitted an internal request for Plaintiff to receive a
follow-up consultation with a vascular surgeon to be performed within one week of May 2, 2007.
(Id. at 23-24; 31-32). The request was authorized and scheduled for May 18, 2007 with Joseph

2

CMS was dismissed without prejudice as a defendant from this action by stipulated
order on April 14, 2012. (ECF No. 82, Stipulated Order).
3

V. Cotroneo, M.D. (Id. at 31-32). Plaintiff was ultimately seen by Dr. Cotroneo on May 29,
2007. (Id. at 56-57). After the exam, Dr. Cotroneo contemporaneously sent a letter to Duane
Waters Hospital that stated Plaintiff needed “arteriograms as soon as possible to evaluate his
circulation in his right leg” and “is clearly going to need some procedure in order to salvage his
right leg” and “has severe ischemia and if not addressed in the near future he will end up with an
amputation”. (Pl.’s Ex. C, Cotroneo 5/29/07 Letter and Notes). It is undisputed that this letter
did not become part of Plaintiff’s MDOC medical record. Dr. Cotroneo also authored a “Form
409” (“First Form 409”), which did become part of the MDOC medical record, on which the
word “URGENT” was handwritten largely on the top and in which Dr. Cotroneo requested
arteriograms for Plaintiff “ASAP”. (Pl.’s Ex. B, at 25). The “TIME FRAME” line on the First
Form 409 was left blank. (Id.).
That same day, on May 29, 2007, Dr. Everette reviewed and signed the First Form 409
authored by Dr. Cotroneo and noted in her progress notes that she spoke with Dr. Cotroneo who
informed her that Plaintiff was “becoming susceptible to limb ischemia and requir[ed] urgent
treatment.” She then noted that an “emergent arteriogram” would be scheduled. (Medical
Records, at 57). Dr. Everette’s emergent request for an arteriogram and follow up appointment
was partially approved on May 30, 2007 such that the urgent arteriogram was scheduled for June
7, 2007. (Id. at 63-64). However, the follow up appointment request was denied “as premature.
Patient may require emergent surgery following arteriogram– not another [follow up].” (Id. at
61) (emphasis added). Dr. Everette also prescribed Plaintiff pain medication at that time. (Id. at
62).

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In early June 2007, Plaintiff’s MSP, Dr. Everette, was reassigned to a different
correctional facility and was no longer in charge of Plaintiff’s care. (See Def.’s Ex. H, Everette
Aff.). At that time, Defendant was assigned to Plaintiff as his primary care physician or MSP.
On June 7, 2007, the Plaintiff’s arteriogram was performed by Dr. Cotroneo who set forth
in his procedure note that: “Right superficial femoral artery occlusion, right femoral popliteal
graft occlusion, right popliteal artery and trifurcation occlusion” and “right profunda stenosis of
about 50%”. (Medical Records, at 66). Dr. Cotroneo recommended “[p]robably a femoral
endarterectomy to open up the profunda and at that time, perhaps an endovascular attempt to
open up something, either his graft or the superficial femoral artery going down into the
popliteal”. (Id.). On that same date, Dr. Cotroneo also filled out a Specialty Consult Form
(“Second Form 409”) noting that the arteriogram was performed and diagnosing Plaintiff with
“Severe PVD [right] leg”. (Id. at 70). In the Second Form 409, Dr. Controneo recommended
that Plaintiff receive surgery and vicodin for “rest pain” but left the “TIME FRAME” line on the
form blank. (Id.).
Plaintiff claims that he first met with Defendant on June 8, 2007. At that meeting
Plaintiff informed Defendant that Dr. Cotroneo had advised him that he needed the vascular
procedure as soon as possible. (Washington Aff. at ¶ 11). Defendant claimed he did not
remember this meeting but did not deny that this meeting took place. (Jenkins’ Dep. at 48).
Plaintiff alleges that during this first examination, Defendant allegedly told him that “I don’t
know nothing about no surgery, and I’m not doing shit for you.” (Washington Aff. at ¶ 11). On
that same day, June 8, 2007, Defendant reviewed Dr. Cotroneo’s Second Form 409 and
submitted an internal request for the surgery to be performed within one month of June 8, 2007

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rather than urgently as requested by Plaintiff. (Id. at 70-74). Defendant also prescribed Plaintiff
Vicodin every four hours as needed for 60 days to treat the ischemic pain associated with his
PVD. (Id.).
On June 14, 2007, Defendant examined Plaintiff but made no notes regarding the
examination. (Id. at 77). However, the attending nurse, Teresa Thompson, RN, noted that
Plaintiff was complaining of right foot pain and blistering and that the exam revealed toes that
were swollen and painful, but normal color and temperature. (Id.).
On June 15, 2007, Defendant examined Plaintiff and noted that Plaintiff had “severe
PVD”, was awaiting surgery, and that Plaintiff reported the pain medications “help[ed]”.
(Medical Records, at 78). Defendant noted that there was no pulse in Plaintiff’s right foot, a
small ruptured blister on his right great toe, but no change in color. (Id.).
Thereafter, Plaintiff submitted multiple kites and was seen by nurses on June 20, June 22,
June 23, and June 25 for complaints of foot pain. Nurses who saw Plaintiff noted his great right
toe and foot were black in color (June 22); that he could stand but not bear weight on his right
foot (June 23); that his foot was “killing him”, had no sensation in his right great toe, and that
there was no pedal or post-tibial pulses, there was intact blister on the top of his right foot, and
his “2nd toe [was the] only toe [without] black area noted” (June 25). (Id. 80-89). Photographs
were also taken of Plaintiff’s right foot on June 25, 2007. (Id. at 88).
Thereafter, on June 26 and 27, Plaintiff was seen again by nurses. On June 26, Plaintiff
complained the blister on his foot was draining. (Id. at 90). The nurse noted that Plaintiff still
had sensation to all his toes but it was diminished at his right great and fourth toes. (Id.). There
was “no increase in black appearance to toes” and the foot remained warm. (Id.). On June 27,

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the same nurse noted that the blister on Plaintiff’s right foot was drying out but two new blisters
were present at the base of his great right toe. (Id. at 91). Plaintiff noted his foot was “not on
fire as much as yesterday”. (Id.).
On June 27, 2007, Plaintiff’s vascular surgery was approved and scheduled for July 6,
2007. (Id. at 92-93, 95-96).
On June 28, 2007, Defendant and a nurse examined Plaintiff. The nurse noted surgery
was scheduled for July 6, 2007 and that there was capillary refill to bottom of foot but it was
slow. (Medical records, at 94). The nurse also noted that “sensation intact to bottom of foot, 2nd
thru 5th toes. Great toe w/o sensation.” (Id.). Defendant set forth in his notes that Plaintiff
complained of continued pain and stated that his foot was getting worse and wanted to know
when his surgery would occur. (Id. at 97). Defendant noted that Plaintiff had “gangrenous tips
of 1st, 3rd, 4th and 5th toes” of his right foot, and no distal pulses, and recommended continuing his
pain medication. (Id.). Defendant’s note mistakenly provided that Plaintiff’s surgery was
scheduled for July 8, 2007. (Id.).
On June 29, 2007, Plaintiff was seen by a nurse who noted that he complained his toes
hurt more and found that Plaintiff had diminished circulation. (Id. at 99). A follow up
appointment was made for July 2, 2007. (Id.). On July 1, 2007, Plaintiff submitted a kite and
was seen by a nurse for pain in his foot and swelling. (Id. at 100). The nurse noted that there
was “[n]o change in appearance of foot from yesterday.” (Id. at 101).
On July 2, 2007, Plaintiff was taken to Foote Hospital after he complained of chest pains.
Plaintiff was diagnosed there with acute inferior posterior wall myocardial infarction, commonly
referred to as a heart attack. (Id. at 102-04). Plaintiff’s records from Foote Hospital noted that:

7

Plaintiff’s “right leg has chronic ischemic changes”; Plaintiff’s right great toe was “gangrenous”;
and his foot was “necrotic”. (Pl.’s Ex. I, Foote Hospital Medical Records, 4-5, 9-12). The notes
also reflected that Plaintiff’s vascular surgery was rescheduled but mistakenly state the surgery
that had to be rescheduled was an “amputation”. (Id. at 8).
While at Foote Hospital, Plaintiff “underwent cardiac catheterization and stent placement
to the right coronary artery.” (Medical Records, at 107). Plaintiff remained at Foote Hospital
until July 6, 2007 when he was transferred to Duane Waters Hospital for transition care, and
where he remained until being released on parole on July 24, 2007. (Medical Records, at 107;
Pl.’s Ex. L, parole verification). The medical notes from Duane Water Hospital provided that
Plaintiff’s scheduled vascular procedure was postponed because of his “recent myocardial
infarction” and noted that Plaintiff’s “right foot [wa]s gangrenous” and he was receiving pain
medication every eight hours for pain control. (Id. at 107-08).
After being paroled, Plaintiff admitted himself to St. Mary’s Medical Center in Saginaw,
Michigan, and on August 3, 2007, Plaintiff’s right lower leg was amputated below the knee.
III. STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1), the Court
conducts a de novo review of the portions of the Magistrate Judge’s Report and
Recommendation to which a party has filed “specific written objections” in a timely manner.
Lyons v. Comm’r Soc. Sec., 351 F. Supp. 2d 659, 661 (E.D. Mich. 2004). 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

8

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. An “objection”
that does nothing more than disagree with a magistrate judge's determination, “without
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).
Defendant has moved for summary judgment under Rule 56(a) of the Federal Rules of
Civil Procedure. This rule provides that a court “shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Summary judgment is appropriate where the moving party
demonstrates that there is no genuine issue of material fact as to the existence of an essential
element of the nonmoving party’s case on which the nonmoving party would bear the burden of
proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “Of course, [the moving
party] always bears the initial responsibility of informing the district court of the basis for its
motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the
absence of genuine issue of material fact.” Id. at 323; see also Gutierrez v. Lynch, 826 F.2d
1534, 1536 (6th Cir. 1987).
A fact is “material” for purposes of a motion for summary judgment where proof of that
fact “would have [the] effect of establishing or refuting one of the essential elements of a cause
of action or defense asserted by the parties.”

Kendall v. Hoover Co., 751 F.2d 171, 174 (6th

Cir. 1984) (quoting BLACK=S LAW DICTIONARY 881 (6th ed. 1979)) (citations omitted). A
dispute over a material fact is genuine “if the evidence is such that a reasonable jury could return

9

a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48
(1986). Conversely, where a reasonable jury could not find for the nonmoving party, there is no
genuine issue of material fact for trial. Feliciano v. City of Cleveland, 988 F.2d 649, 654 (6th
Cir. 1993). In making this evaluation, the court must examine the evidence and draw all
reasonable inferences in favor of the non-moving party. Bender v. Southland Corp., 749 F.2d
1205, 1210-11 (6th Cir. 1984).
If this burden is met by the moving party, the non-moving party=s failure to make a
showing that is “sufficient to establish the existence of an element essential to that party=s case,
and on which that party will bear the burden of proof at trial” will mandate the entry of summary
judgment. Celotex, 477 U.S. at 322-23. The non-moving party may not rest upon the mere
allegations or denials of his pleadings, but the response, by affidavits or as otherwise provided in
Rule 56, must set forth specific facts which demonstrate that there is a genuine issue for trial.
FED. R. CIV. P. 56(e). The rule requires that non-moving party to introduce “evidence of
evidentiary quality” demonstrating the existence of a material fact. Bailey v. Floyd County Bd.
of Educ., 106 F.3d 135, 145 (6th Cir. 1997); see Anderson, 477 U.S. at 252 (holding that the nonmoving party must produce more than a scintilla of evidence to survive summary judgment).
IV. ANALYSIS
The Magistrate Judge recommended granting Defendant’s motion for summary judgment
in her Report and Recommendation because she concluded that Plaintiff had failed to present
sufficient evidence from which a reasonable jury could find that Defendant was deliberately
indifferent to Plaintiff’s serious medical needs. Plaintiff has objected the Report and
Recommendation on three grounds: (1) the Magistrate Judge ignored his claim that Plaintiff’s

10

suffering of needless and unnecessary pain associated with the gangrene on his right foot is
actionable under the Eighth Amendment; (2) the Magistrate Judge failed to view the evidence
and draw all inferences in Plaintiff’s favor as required when reviewing a motion for summary
judgment; and (3) the Magistrate Judge erred in finding that Johnson v. Karnes, 98 F.3d 868 (6th
Cir. 2005) was distinguishable from the underlying facts of this action. As the Court finds
Plaintiff’s second and third objections meritorious, it declines to address Plaintiff’s first
objection.
As an initial matter, the Court notes that pursuant to the Eighth Amendment’s prohibition
against cruel and unusual punishment, “prisoners have a constitutional right to medical care.”
Comstock v. McCrary, 273 F.3d 693, 702 (6th Cir. 2001) (citing Estelle v. Gamble, 429 U.S. 97,
103 (1976)). This right is violated when officials are “deliberately indifferent” to an inmate’s
serious medical needs. Id. To establish such an Eighth Amendment claim, a plaintiff must
satisfy two components: an objective one and a subjective one. See Wilson v. Seiter, 501 U.S.
294, 300-04 (1991).
“To satisfy the objective component, the plaintiff must allege that the medical need at
issue is “sufficiently serious.” Comstock, 273 F.3d at 702-03 (quoting Farmer v. Brennan, 511
U.S. 825, 834 (1994)). “A medical need is sufficiently serious if the need is ‘so obvious that
even a lay person would easily recognize the necessity for a doctor’s attention.’” Blackmore v.
Kalamazoo Cnty., 390 F.3d 890, 897 (citation omitted). “To satisfy the subjective component,
the plaintiff must 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 then disregarded that risk.” Comstock, 273 F.3d at 703 (citation omitted).
However, “an official’s failure to alleviate a significant risk that he should have perceived but
11

did not, while no cause for commendation, cannot under our cases be condemned as the
infliction of punishment.” Id. (quoting Farmer, 511 U.S. at 837) (emphasis in Comstock).
Further, while “courts are generally reluctant to second guess medical judgments” when
prisoners allege that their treatment was inadequate; “it is possible for medical treatment to be
‘so woefully inadequate as to amount to no treatment at all.’” Alspaugh v. McConnell, 643 F.3d
162, 169 (quoting Westlake v. Lucas, 537 F.2d at 860 n. 5).
In the instant case, while the Defendant did not contest that Plaintiff alleged a
“sufficiently serious” medical issue, the Magistrate Judge concluded that Plaintiff had failed to
meet the subjective component of the Eighth Amendment inquiry because he failed to create a
genuine issues of material fact regarding whether the Defendant had (1) subjectively perceived
facts from which to infer a substantial risk to the prisoner; (2) that he did in fact draw the
inference; and (3) then disregarded that risk.
A.

Failure to View the Record in a Light Most Favorable to Plaintiff

Plaintiff now objects to the Report and Recommendation on the basis that the Magistrate
Judge erroneously credited the Defendant’s version of the facts and failed to draw all reasonable
inferences in his favor as a court must when evaluating a motion for summary judgment pursuant
to Federal Rules of Civil Procedure 56. (Obj., at 6-14). In his Objections, Plaintiff has provided
a number of examples that he claims demonstrate the Magistrate Judge failed to view the facts or
inferences in a light most favorable to him, the non-moving party. The Court examines these
instances below.
First, the Plaintiff argues that the Magistrate Judge misconstrued Plaintiff’s allegations
regarding his first meeting with Defendant on June 8, 2007. In the Report and Recommendation,
the Magistrate Judge stated:
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Washington further alleges that on June 8, 2007, Jenkins told him, “I don’t know
nothing about no surgery, and I’m not doing shit for you.” Even if that allegation
is true, it does not raise a genuine issue of material fact; the question before the
Court is whether Jenkins acted with deliberate indifference not whether he treated
Washington with courtesy. With regard to Jenkins’ actions, the record shows that
he requested approval for the vascular procedure the same day as the alleged
remark, examined Washington multiple times throughout June and provided him
with pain medication while awaiting surgery.
(R&R, at 19). The Court finds that the Magistrate Judge erred in her analysis by failing to view
this evidence in a light most favorable to Plaintiff. Plaintiff clearly alleged that he first met
Defendant on June 8, 2007 (a fact that Defendant did not recall but did not deny) and advised
him that the vascular surgeon had instructed him that he needed his vascular surgery as soon as
possible. Plaintiff also alleged that Defendant responded in discourteous manner and told him he
would not being doing “shit” for him. Regardless, the Magistrate Judge failed to view this
evidence in a light most favorable to Plaintiff because the import of this allegation goes to
establishing a genuine issue of material fact regarding whether Defendant was subjectively
aware, as of June 8, 2007, that Plaintiff needed emergency surgery.
Indeed, other facts in the record when viewed in a light most favorable to Plaintiff also
support finding a genuine issue of material fact as to whether Defendant was subjectively aware
that Plaintiff needed emergency surgery in early June 2007. Specifically, Plaintiff’s MDOC
record which Defendant relied upon in caring for Plaintiff, contained no less than three different
references to Plaintiff’s need of “urgent” or “emergent” care: (1) Dr. Everette’s note regarding
her communication with Dr. Cotroneo on May 29, 2007; (2) the denial of Dr. Everette’s request
for a follow up appointment after the arteriorgram because Plaintiff might need “emergent
surgery”; and (3) Dr. Cotroneo’s First Form 409 upon which he had written in all caps:
URGENT and ASAP. Therefore, the Court finds that Plaintiff has established a genuine issue of
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material fact regarding whether Defendant was subjectively aware that Plaintiff needed
emergency surgery.
Plaintiff also argues that the Magistrate Judge erred when she failed to view Defendant’s
testimony in a light most favorable to Plaintiff. Specifically, the fact that Defendant confirmed
during his deposition that he was aware in early June 2007, “according to the record and
according to [his] examination”, that Plaintiff “had severe limb ischemia”. (Jenkins’ Dep. at 5758). Defendant also acknowledged that he knew that “severe limb ischemia can lead to
gangrene”. (Id. at 58). Defendant went on to admit that Plaintiff did not have gangrene when
Defendant first saw Plaintiff in the beginning of June, 2007, but did in fact have gangrenous toes
at the end of June, 2007. (Id. at 58-59). Accordingly, there is testimony from Defendant that he
was aware of Plaintiff’s “severe” condition that could lead to gangrene and then observed
Plaintiff’s condition deteriorate and worsen until Plaintiff did in fact have gangrene. Defendant
also submitted a contradictory statement made under penalty of perjury that when he first saw
Plaintiff he believed Plaintiff’s foot “had some collateral flow to the foot and was not ischemic,
and therefore it was appropriate to wait for surgery as requested by 7/6/2007.” (Def.’s Ex. B,
Jenkins’ Cert. at ¶ 9). In the Report and Recommendation, the Magistrate Judge erroneously
relied upon Defendant’s contradictory statement that he did not believe Plaintiff’s foot was
ischemic in early June 2007 and the medical experts’ opinions to conclude that Plaintiff failed to
show that Defendant actually perceived a substantial risk to Plaintiff and disregarded that risk.
(R&R, at 18).
The Court finds that Defendant’s clear testimony that he was aware that Plaintiff was
suffering from “severe ischemia” in early June 2007, and was similarly aware that such a
condition can lead to gangrene, coupled with the fact that Plaintiff’s condition and pain
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progressively worsened throughout the month of June 2007 under Defendant’s supervision,
creates a genuine issues of material fact regarding whether (1) Defendant did in fact draw the
inference that failing to schedule emergency surgery constituted a substantial risk to Plaintiff,
and (2) then disregarded that risk.
In sum, the Court finds that Plaintiff has set forth sufficient evidence to create a genuine
issue of material fact regarding whether Defendant was deliberately indifferent to Plaintiff’s
serious medical need.
B.

Johnson v. Karnes

The conclusions set forth above dovetail with Plaintiff’s objection that the Magistrate
Judge erred in finding that Johnson v. Karnes, 398 F.3d 868 (6th Cir. 2005) was distinguishable
from the facts of this case.
In Johnson, the plaintiff was taken into custody shortly after severing all the tendons in
his dominant hand. Id. at 870-71. The plaintiff was in custody for the next 31 days but spoke to
the defendant doctor only once, his wound was not checked on a regular basis, and plaintiff’s
bandages were changed only once. Id. at 871. The Sixth Circuit held that the medical need was
obvious and concluded that there were genuine issues of material fact regarding whether the
defendant doctor subjectively perceived a risk of harm and whether he then disregarded that risk.
Id. 875-76. The Sixth Circuit explained that a reasonable juror could find that the defendant
doctor was being untruthful and was in fact aware of plaintiff’s severed tendons based on his
testimony that it was policy for him to be contacted about kites reflecting urgent situations and
plaintiff had submitted kites complaining of an urgent medical issue, and he had admittedly seen
the plaintiff at least once. Id. at 876. The Sixth Circuit also found that the medical evidence
demonstrated that it was “common medical knowledge” that tendons had to be repaired quickly
15

or the injury could be come irreparable. That medical knowledge combined with the fact that the
defendant doctor never scheduled plaintiff for surgery, the plaintiff’s testimony regarding his
problems receiving treatment while in custody, and the plaintiff’s medical forms that “very
explicitly stat[ed] his need for prompt surgery” was sufficient to create a genuine issue of fact
over whether the defendant doctor in fact disregarded the risk associated with the plaintiff’s
severed tendons. Id. at 875-76.
The Magistrate Judge distinguished Johnson on the fact that in Johnson it was “common
knowledge” that severed tendons must be repaired in a timely manner because over time the
tendons could become irreparable as compared to the medical issue in the present case, where
“three of the four experts who reviewed this case did not believe that it was evident that
Washington’s vascular procedure should have been scheduled earlier than July 6.” (R&R, at
20).
Plaintiff argues that the relevant portion of Johnson is the Sixth Circuit’s conclusion that:
Based on Dr. Spagna’s testimony about the way medical forms are processed, a
reasonable jury could conclude that Dr. Spagna was not being truthful or accurate
when he stated that he had not seen the medical request forms and did not know
that Johnson’s tendons were in fact severed.
Johnson, 398 F.3d at 876. Plaintiff avers that like Johnson, a reasonable juror in this case could
conclude that Defendant is being untruthful in his testimony that nothing in Plaintiff’s chart
suggested that he needed urgent treatment.
The Court agrees. As the Sixth Circuit noted in Johnson, the burden to establish the
subjective component is “onerous”, but it is “subject to proof by ‘the usual ways.’” 398 F.3d at
875 (citation omitted). “The subjective knowledge standard does not allow a prison official [to]
escape liability if the evidence showed that he merely refused to verify underlying facts that he
16

strongly suspected to be true, or declined to confirm inferences of risk that he strongly suspected
to exist.” Id. (citing Comstock, 273 F.3d at 703) (internal quotation marks removed)
Here, Defendant narrowly argues that the notations indicating a need for urgent treatment
only refer to Plaintiff’s need for an arteriogram. However, the Court must take the record in a
light most favorable to Plaintiff, and as noted above, viewing the record in a light most favorable
to Plaintiff, the medical chart Defendant relied upon contained multiple references to Plaintiff’s
need for “urgent” medical care. Specifically, the medical record indicated repeatedly that
Plaintiff’s need for an arteriogram was “URGENT” and needed “ASAP”, and included a denial
for a follow up appointment based on the fact the likelihood that Plaintiff would need
“emergent” surgery after the arteriogram.
The Court finds that Defendant’s testimony acknowledging Plaintiff’s severe limb
ischemia and obvious deterioration of Plaintiff’s condition as documented by Plaintiff’s nurses,
in addition to multiple notations of the need of “urgent” or “emergent” care in Plaintiff’ medical
chart, could lead a reasonable juror to conclude that Defendant’s reliance on a blank
“TIMELINE” section in the Second Form 409 or Defendant’s failure to call Dr. Cotroneo to
confirm the surgery was “routine” was merely Defendant’s refusal to “verify underlying facts
that he strongly suspected to be true” or failure to “confirm inferences of risk that he strongly
suspected to exist”. Johnson, 398 F.3d at 875 (citation omitted). However, like the defendant in
Johnson, Defendant cannot “escape liability” under the subjective standard by simply refusing to
acknowledge facts that he knew or strongly suspected to be true. Additionally, these facts could
reasonably lead a juror to conclude that Defendant was being untruthful when he testified that
nothing in Plaintiff’s chart suggested that Plaintiff needed emergency surgery.

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Accordingly, the Court finds the Johnson analysis is persuasive and supports the
conclusion that Plaintiff has evidenced a general issue of material fact regarding whether
Defendant was deliberately indifferent to his serious medical need by failing to schedule his
vascular surgery urgently.
C.

Proximate Cause

The Court notes that the Magistrate Judge did not reach Defendant’s alternative argument
that Plaintiff’s claim fails because he cannot show by a preponderance of the evidence that
Defendant’s actions were the proximate cause of his harms. As the Court concludes that
Plaintiff has evidenced a genuine issue of fact regarding Defendant’s deliberate indifference to
his medical needs in violation of the Eighth Amendment, the Court will address Defendant’s
alternative argument.
Defendant argues in his Motion for Summary Judgment that Plaintiff’s Eighth
Amendment claim must fail because there is insufficient evidence in the record for a jury to
conclude that Defendant’s acts were the proximate cause of any harm to Plaintiff. (Def.’s Br. at
29-35). In short, Defendant argues that Plaintiff’s July 2, 2007 heart attack was a completely
unforeseen, intervening and superceding event that constituted the “but for” cause of Plaintiff’s
amputation. Defendant relies upon his medical experts to support his claim that “but for”
Plaintiff’s heart attack, Plaintiff would have received his vascular surgery on July 6, 2007 and
his leg would not have been amputated. Plaintiff argues in response that his medical expert, Dr.
Gradman, opined that Plaintiff’s heart attack was likely precipitated by Plaintiff’s “extensive
symptomatic severe peripheral vascular disease and the stress and anxiety daily watch[ing] his
foot necrose” and was therefore not an unforeseeable event. (Pl.’s Ex. O, Gradman Rule 26
Report, at 13-14). Plaintiff also argues that whether Plaintiff’s heart attack was a foreseeable
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event due to his medical history and the fact he was suffering extreme pain and watching his toes
turn black with gangrene is an issue of fact properly submitted to a jury.
First, the Court notes that Defendant did not argue in its motion for summary judgment
that Plaintiff had failed to evidence he had a “serious medical need”, i.e. the objective standard
of the Eighth Amendment inquiry. Rather, Defendant argued that Plaintiff could not establish
the subjective component of the inquiry: that Defendant had consciously disregarded a known
serious risk of substantial harm to Plaintiff. This distinction is relevant to Defendant’s
alternative argument regarding whether Defendant was the proximate cause of the harm to
Plaintiff because such an argument is subsumed by this inquiry.
The Sixth Circuit has explained there are two ways to establish a “serious medical need”:
For obvious medical needs left completely untreated, “the delay alone in
providing medical care creates a substantial risk of serious harm.” [Blackmore v.
Kalamazoo Cnty., 390 F.3d 890, 899 (6th Cir. 2004) (citation omitted)]. By
contrast, where a “ ‘deliberate indifference’ claim is based on a prison's failure to
treat a condition adequately” or on “a determination by medical personnel that
medical treatment was unnecessary,” a plaintiff must “place verifying medical
evidence in the record to establish the detrimental effect of the delay in medical
treatment.” Blackmore, 390 F.3d at 897–98 (emphasis added) (citing Napier v.
Madison Cnty. Ky., 238 F.3d 739, 742 (6th Cir.2001)); see also Blosser v. Gilbert,
422 Fed.Appx. 453, 460 (6th Cir.2011).
Cobbs v. Pramstaller, 475 F. App’x 575, 580 (6th Cir. 2012). Further, “[w]here the seriousness
of a prisoner’s needs for medical are is obvious even to a lay person, the constitutional violation
may arise. This violation is not premised upon the ‘detrimental effect’ of delay, but rather that
the delay alone in providing medical care creates a substantial risk of serious harm.” Owensby v.
City of Cincinnati, 414 F.3d 596, 604 (citing Blackmore, 390 F.3d at 899)). In those types of
cases, “the effect of the delay goes to the extent of the injury, not the existence of a serious
medical condition.” Id.
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In the present case, Plaintiff argues that he was denied the right to adequate medical care
under the Eighth Amendment due to Defendant’s deliberate indifference to his need for urgent
surgery. Plaintiff alleges that this delay in treatment caused Plaintiff harm, including pain and
suffering through the month of June as his toes turned black, and also the eventual amputation of
his leg in August. To the extent that Plaintiff’s medical condition was not obvious to a layperson
where he was clearly diagnosed on June 7, 2007 with an occlusion in his right leg and “Severe
PVD [right] leg” that required surgery; Plaintiff has also set forth sufficient medical evidence to
establish a genuine issue of material fact regarding “the detrimental effect of the delay in
medical treatment” through the medical records documenting his ongoing pain, the onset of
gangrene and necrosis of his toes, and his medical expert’s opinions that his leg would not have
been saved by vascular surgery on July 6, 2007 and that his heart attack was not unforeseeable.
Put another way, Plaintiff has established at least a genuine issue of material fact regarding the
“link” from Defendant’s actions and his injuries. See Clark-Murphy v. Foreback, 439 F.3d 280
(6th Cir. 2006) (rejecting the defendant’s argument that their actions were not the “proximate
cause” of the plaintiff’s death, holding: “the claimant need only demonstrate a link between each
defendant’s misconduct and Clark’s injury, which may include his death as well as ‘the pain and
suffering,’ [] that preceded his death.” (emphasis in original)) (citing Boretti v. Wiscomb, 930
F.2d 1150, 1153 (6th Cir. 1991), Westlake v. Lucas, 537 F.2d 857, 860 (6th Cir. 1976)).
Accordingly, the Court finds that Defendant’s argument regarding proximate cause is
more correctly addressed in the context of whether Plaintiff has established that he suffered a
“serious medical need”. The Court further concludes that Plaintiff has set forth sufficient
medical evidence in the record to demonstrate at least a genuine issue of material fact regarding
the “detrimental effect” of not scheduling Plaintiff’s surgery emergently (which could include
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Plaintiff’s pain, suffering, and/or amputation of his right leg). Additionally, the Court notes that
even if it was appropriate to assess Defendant’s proximate cause argument separately from the
Eighth Amendment inquiry, the issue of proximate cause is one for the jury where there are
competing medical opinions in the record. See Toth v. Yoder Co., 749 F.2d 1190, 1197 (6th Cir.
1984) (“Proximate causation, or the lack of it, is generally a question of fact....”).
VI. CONCLUSION
For all these reasons the Court GRANTS Plaintiff’s Objections (ECF No. 126) and
REJECTS the Magistrate Judge’s Report and Recommendation (ECF No. 125). The Court also
DENIES Defendant’s Motion for Summary Judgment (ECF No. 114).
IT IS SO ORDERED.

s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: September 30, 2015
CERTIFICATE 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 September 30, 2015.

s/Deborah Tofil
Case Manager

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