Casanova v. Michigan Department of Corrections et al

Filing 25

OPINION AND ORDER Overruling Plaintiff's Objections, Adopting 21 Report and Recommendation, Granting Defendant Michigan Department of Corrections Motion to Dismiss, and Dismissing all Claims against Defendant Dr. Holmes. Signed by District Judge Marianne O. Battani. (BThe)

UNTIED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ROBERTO CASANOVA,
Plaintiff,
CASE NO. 10-13950
v.
HON. MARIANNE O. BATTANI
MICHIGAN DEPARTMENT OF
CORRECTIONS, ET AL.,
Defendants.
_______________________ __________/
OPINION AND ORDER OVERRULING PLAINTIFF’S OBJECTIONS,
ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION,
GRANTING DEFENDANT MICHIGAN DEPARTMENT OF CORRECTIONS’ MOTION
TO DISMISS, AND DIMISSING ALL CLAIMS AGAINST DEFENDANT DR. HOLMES
Before the Court are Plaintiff Robert Casanova’s objections (Doc. 23) to the
Magistrate Judge's June 8, 2011 Report and Recommendation ("R&R") (Doc. 21). In
the R&R, the Magistrate Judge recommended that the Court grant Defendant Michigan
Department of Corrections’ (“MDOC”) Rule 12(b) Motion for Dismissal (Doc. 14) and
dismiss all claims against MDOC. The R&R further recommends that the Court sua
sponte dismiss all claims against Defendant Dr. Scott Holmes under Fed. R. Civ. P.
12(b)(1). For the reasons that follow, the Court OVERRULES Plaintiff’s objections,
ADOPTS the R&R, GRANTS MDOC’s motion to dismiss, and DISMISSES all claims
against Dr. Holmes.
I.

STATEMENT OF FACTS
As the parties have not objected to the R&R’s recitation of the facts, the Court

adopts that portion of the R&R. See (Doc. 21 at 1-3).

II.

STANDARD OF REVIEW
A district court must conduct a de novo review of the parts of a magistrate

judge’s report and recommendation to which a party objects. 28 U.S.C. § 636(b)(1).
The district “court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate” judge. Id. The requirement of de novo
review “is a statutory recognition that Article III of the United States Constitution
mandates that the judicial power of the United States be vested in judges with life
tenure.”

United States v. Shami, 754 F.2d 670, 672 (6th Cir. 1985).

Accordingly,

Congress enacted 28 U.S.C. § 636(b)(1) to “insure[ ] that the district judge would be the
final arbiter” of a matter referred to a magistrate judge. Flournoy v. Marshall, 842 F.2d
875, 878 (6th Cir. 1987).
III.

ANALYSIS
Although he did not respond to MDOC’s Motion for Dismissal, Plaintiff raises two

objections to the R&R. First, Plaintiff argues that MDOC and its employees denied his
medical procedure “for the sole purpose of not having to bear the cost of the surgery.”
(Doc. 23 at 3). Second, Plaintiff alleges that Dr. Holmes was deliberately indifferent to
his medical condition because Dr. Holmes did not appeal the decision not to repair
Plaintiff’s ACL. (Doc. 23 at 6). Before addressing each objection, the Court reviews the
applicable law concerning Plaintiff’s “deliberate indifference” claim.
A. Deliberate Indifference
Pursuant to the Eighth Amendment’s prohibition on cruel and unusual
punishment, the government has an obligation to provide inmates with medical care.

2

Estelle v. Gamble, 429 U.S. 97, 103 (1976). A prisoner’s constitutional claim regarding
medical care received, or lack thereof, is analyzed under the Eighth Amendment. Id.
The Eighth Amendment “forbids prison officials from ‘unnecessarily and wantonly
inflicting pain’ on an inmate by acting with ‘deliberate indifference’ toward [his] serious
medical needs.” Jones v. Muskegon Cnty., 625 F.3d 935, 941 (6th Cir. 2010) (quoting
Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 895 (6th Cir. 2004)). In order to succeed
on a deliberate indifference claim, a plaintiff must satisfy two elements, an objective one
and a subjective one. Wilson v. Seiter, 501 U.S. 294, 300 (1991).
The objective element of a deliberate indifference claim is satisfied by a showing
that the plaintiff had a serious medical need. Id. at 297. One way the plaintiff can prove
a serious medical need is by showing that his need for medical care was “obvious even
to a lay person.”

Johnson v. Karnes, 398 F.3d 868, 874 (6th Cir. 2005) (quoting

Blackmore, 390 F.3d at 899). If the need for medical care was not obvious to a lay
person, the plaintiff can show a serious medical need by placing medical evidence in
the record that establishes a detrimental effect caused by a delay in medical treatment.
Id.
The subjective element of a deliberate indifference claim requires a plaintiff to
demonstrate that the defendant “subjectively perceived a risk of harm and then
disregarded it.” Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001). Indeed, the
plaintiff must establish “that prison officials have a sufficiently culpable state of mind in
denying medical care.” Jones, 625 F.3d at 941 (quoting Blackmore, 390 F.3d at 895).
A culpable state of mind requires obduracy and wantonness, not mere inadvertence.
Gibson v. Foltz, 923 F.2d 851, 853 (6th Cir. 1992). A plaintiff does not need to show

3

that an official acted with the purpose or knowledge of causing harm; recklessness in
disregarding a substantial risk will suffice. Comstock, 273 F.3d at 703 (quoting Farmer
v. Brennan, 511 U.S. 825, 835 (1994) (holding that official must know of and disregard
an excessive risk to inmate health or safety)). In other words, deliberate indifference
can be established by a plaintiff showing that medical care was “so grossly incompetent,
inadequate, or excessive as to shock the conscience or to be intolerable to fundamental
fairness.” Miller v. Calhoun Cnty., 408 F.3d 803, 819 (6th Cir. 2005) (quoting Terrance
v. Northville Reg’l Psychiatric Hosp., 286 F.3d 834, 843 (6th Cir. 2001)).
The objective element is not at issue in the case at hand; both of Plaintiff’s
objections concern the subjective element of his deliberate indifference claim.
B. Objection #1 – Defendant MDOC
Plaintiff has not stated a claim upon which relief can be granted regarding
MDOC’s failure to repair his ACL. Plaintiff’s chief complaint is that “rather than repairing
[his] damaged ACL, it was debrided.” (Doc. 1 at 4-5). Here, Plaintiff merely disagrees
with the determination of the appropriate medical procedure. Additionally, Plaintiff has
not alleged that Defendants took cost into consideration with the knowledge that they
were performing an ineffective procedure.
1. Disagreement With Medical Procedure
A prisoner’s subjective disagreement with a certain medical procedure performed
does not amount to a deliberate indifference claim under the Eighth Amendment.
Graham ex. Rel. Estate of Graham v. Cnty. of Washtenaw, 358 F.3d 377, 385 (6th Cir.
2004); Mabry v. Antonini, 289 F. App’x 895, 902 (6th Cir. 2008); Jennings v. Al-Dabagh,
275 F. Supp. 2d 863, 870 (E.D. Mich. 2003) (“[T]he fact that a prisoner disagrees with a

4

course of treatment that he was prescribed, or even that the treatment he did receive
was negligently administered, does not rise to a constitutional violation.”). It is wellsettled that a challenge to a doctor’s medical judgment is a state-law matter and does
not give rise to an Eighth Amendment claim of deliberate indifference. Estelle, 429 U.S.
at 107; see also Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976) (reasoning
that dispute as to the adequacy of medical treatment is a state law tort claim). In fact,
“[w]here a prisoner has received some medical attention and the dispute is over the
adequacy of the treatment, federal courts are generally reluctant to second guess
medical judgments and to constitutionalize claims that sound in state tort law.” Graham,
358 F.3d at 385 (quoting Westlake, 537 F.2d at 860 n.5). A doctor’s failure to provide a
specific treatment does not state a constitutional claim of deliberate indifference. Mabry
289 F. App’x at 902.
In the case at hand, Plaintiff’s allegations simply show that he has a
disagreement with the medical procedures that were performed.

Although Plaintiff

would have liked his ACL repaired, MDOC’s physicians ultimately decided to sever the
ACL. Plaintiff has not alleged that the debridement of his ACL was a less effective or
riskier procedure; he merely contends that the cheaper of two procedures was
performed. Plaintiff’s disagreement with his course of treatment does not establish that
Defendants acted wantonly or with the subjective intent to cause him harm. See Estate
of Carter v. City of Detroit, 408 F.3d 305, 311(6th Cir. 2005). The Magistrate correctly
reasoned that it is not a court’s place to second-guess MDOC’s medical decisions.
(Doc. 21 at 6-7). Accordingly, since Plaintiff’s allegation amounts to nothing more than

5

a mere disagreement with a medical procedure, he fails to state a colorable deliberate
indifference claim.
Furthermore, even if Plaintiff’s disagreement could serve as the basis for a valid
Eight Amendment claim, his allegations do not establish that Defendants acted with a
culpable subjective intent. The record is replete with facts suggesting that Defendants
did plenty to help Plaintiff. Plaintiff had numerous appointments and was provided with
a vast amount of medical advice. (Doc. 21 at 2). Additionally, Plaintiff was treated
before surgery, and had surgery on both his left and right ACL.

(Id.).

Plaintiff’s

allegation that Defendants were deliberately indifferent to his medical condition belies
the record. Thus, the Court finds that Plaintiff has not stated a claim upon which relief
can be granted.
2. Deliberate Indifference Based on Cost of Medical Procedure
If the Court assumes, arguendo, that Defendants considered cost when
determining the appropriate course of treatment, Plaintiff has still not alleged that
Defendants wantonly or recklessly disregarded a substantial risk to Plaintiff’s health or
safety.
The United States Supreme Court has held that the Eighth Amendment does not
require that prisoners receive “unqualified access to health care.” Hudson v. McMillian,
503 U.S. 1, 9 (1992). In considering the cost factor, several circuit courts have held that
a mere claim that cost was taken into account in denying a prisoner’s medical
procedure does not per se establish the subjective component of an Eighth Amendment
claim. In fact, “the naked assertion that [a defendant] considered cost in treating [a
plaintiff’s condition] does not suffice to state a claim for deliberate indifference, as

6

prisoners do not have a constitutional right to limitless medical care, free of the cost
constraints under which law-abiding citizens receive treatment.”

Winslow v. Prison

Health Servs., 406 F. App’x 671, 674 (3d Cir. 2011). To state an Eighth Amendment
claim, a plaintiff must establish that a defendant performed a medical procedure for the
purposes of cost savings with knowledge that the procedure was ineffective. Johnson
v. Doughty, 433 F.3d 1001, 1013 (7th Cir. 2006) (citing Kelley v. McGinnis, 899 F.2d
612, 616 (7th Cir. 1990)).
The Winslow case is instructive as to how a court should address a plaintiff’s
deliberate indifference claim when cost is alleged to have led to a medical decision. In
Winslow, the court affirmed the district court’s dismissal of the plaintiff’s claims because
the complaint did not state a claim upon which relief could be granted. 406 F. App’x at
674. The court reasoned that the plaintiff’s complaint alleging that he was harmed
because of cost considerations was “exceedingly conclusory.” Id. The complaint did
not address, inter alia, “what basis [plaintiff] ha[d] for thinking that ‘policies to save
money’ affected his medical treatment.” Id. Thus, the court dismissed plaintiff’s claim,
holding that his subjective dissatisfaction with his medical treatment and conclusory
allegations that cost played a factor were not enough to survive a motion to dismiss. Id.
Essentially, an allegation that cost played a role in a defendant’s deliberate indifference
to a medical decision must specifically assert that the defendant knew the alternative
procedure was ineffective. See Kelley v. McGinnis, 899 F.2d at 616.
The Court adopts the analysis set forth in Winslow and Kelley and finds that
Plaintiff does not allege that Defendants knew that debridement of the ACL was an
ineffective procedure. He merely points out that cost was taken into account by citing

7

one sentence in a Consultation Request written by Dr. Holmes in which Dr. Holmes
observed that “the ACL is torn but [M]DOC won’t pay for ACL repair.” (Doc. 1 at 5). In
his objections, Plaintiff contends that “[t]he only reason for the failure to perform the
prescribed replacement of the ACL was the cost.” (Doc. 23 at 3). Nowhere in his
complaint or in his objections does Plaintiff allege that Defendants knew that
debridement of the ACL was an ineffective alternative; he simply makes an unsupported
statement that cost was the sole reason Defendants performed the debridement
procedure. Accordingly, the Court finds Plaintiff’s cost allegation conclusory and that he
has not stated a claim upon which relief can be granted.
C. Objection #2 – Dr. Holmes
Plaintiff fails to state a cognizable Eighth Amendment claim against Dr. Holmes.
Essentially, Plaintiff claims that Dr. Holmes was deliberately indifferent to his medical
condition because Dr. Holmes failed to appeal the MDOC’s decision not to repair
Plaintiff’s ACL. (Doc. 23 at 6). Additionally, the complaint alleges that “[a]lthough [Dr.
Holmes] tried to request the necessary treatment, he was ineffective in the treatment of
Plaintiff’s day-to-day needs, and did not pursue every possible avenue to obtain the
necessary treatment.” (Doc. 1 at 7).
First, the failure to appeal an administrative decision does not constitute a
medical decision and does not give rise to a deliberate indifference claim. Second, the
Eighth Amendment does not require Dr. Holmes to take every measure possible in
providing medical care to Plaintiff.

To state a viable deliberate indifference claim,

Plaintiff must demonstrate that Dr. Holmes acted with a culpable state of mind in
providing or withholding medical care to Plaintiff. Plaintiff cannot make that showing

8

based on the facts pled in his complaint.

The record clearly reflects, and Plaintiff

himself acknowledges, that Dr. Holmes served as an effective patient advocate:
Dr. Holmes examined the Plaintiff days after the initial 2006
knee injury. He provided treatment, and scheduled a followup exam, after which he requested a consult with an
orthopedic surgeon. While CMS initially failed to authorize
an orthopedic consult (through no fault of Dr. Holmes), an
MRI was performed, and eventually, through Dr. Holmes’
efforts, the Plaintiff was seen by an orthopedist, Dr. Ikrim.
Based on Dr. Ikrim’s evaluation, Dr. Holmes requested that
arthroscopic surgery be performed, and the Plaintiff in fact
underwent two such surgeries, one on each knee.
(Doc. 21 at 8). The R&R rightfully observed that “Dr. Holmes paid close attention to
Plaintiff’s medical condition, and appears to have been his strongest medical advocate.”
(Id.). Accordingly, the Court agrees with the Magistrate Judge that Plaintiff’s deliberate
indifference claim against Dr. Holmes should be dismissed as frivolous. See Apple v.
Glenn, 183 F.3d 477, 479 (6th Cir. 1999) (“[A] district court may, at any time, sua
sponte, dismiss a complaint for lack of subject matter jurisdiction pursuant to Rule
12(b)(1) of the Federal Rules of Civil Procedure when the allegations of a complaint are
totally implausible, attenuated, unsubstantial, frivolous, devoid of merit, or no longer
open to discussion.”).
IV.

CONCLUSION

9

For the reasons stated above, the Court OVERRULES Plaintiff’s objections
(Doc. 23), ADOPTS the R&R (Doc. 21), GRANTS MDOC’s motion to dismiss (Doc. 14),
and DISMISSES all claims against Dr. Holmes.
IT IS SO ORDERED.
s/Marianne O. Battani
MARIANNE O. BATTANI
UNITED STATES DISTRICT JUDGE

DATE: September 20, 2011

CERTIFICATE OF SERVICE
I hereby certify that on the above date a copy of this Order was served upon the
Plaintiff via ordinary U.S. Mail and Counsel for the Defendant, electronically.
s/Bernadette M. Thebolt
Case Manager

10