Nalls v. Napolean

Filing 95

ORDER granting in part and denying in part 84 Motion for Summary Judgment; adopting in part 94 Report and Recommendation, Dismissing Defendants Tiffany Jones, Jacquelyn Foster, Tango Chetam, Maxine Hawk, Kimberly Majors, Vanessa Thomas, David Andreski and Aaron Cohen and forwarding case to Pro Bono Committee for Assignment of Counsel. Following the Assignment of Counsel, a scheduling conference will be set within 30 days. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KENYATTA NALLS,
Case No. 11-12670
Plaintiff,
SENIOR UNITED STATES DISTRICT
JUDGE ARTHUR J. TARNOW

v.
BENNY N. NAPOLEON, ET. AL.,

MAGISTRATE JUDGE ELIZABETH A.
STAFFORD

Defendant.
/

ORDER ADOPTING IN PART AND REJECTING IN PART REPORT AND
RECOMMENDATION [94]; GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ RENEWED MOTION FOR SUMMARY JUDGMENT [84]
On August 6, 2015, all Defendants filed a renewed Motion for Summary
Judgment [84]. On December 4, 2015 Plaintiff filed a response to the Motion for
Summary Judgment [93]. On January 15, 2016, the Magistrate filed a Report and
Recommendation, which recommended that the Court grant Defendants’ Motion
for Summary Judgment. Plaintiff did not file any objections. For the reasons stated
below, Defendants’ Motion for Summary Judgment is GRANTED in part and
DENIED in part.

1

1. STATEMENT OF FACTS
Plaintiff’s claims stem from an incident that occurred on either March 12 or
March 13, 20101 when Plaintiff was a pretrial detainee. While in pretrial detention,
Plaintiff was being moved to a different ward in the Wayne County Jail. On either
March 12 or March 13, Plaintiff was awoken by extreme pain when his left hand
was crushed by the bars of the cell door.
According to medical evidence presented by Defendants, Plaintiff’s
condition was assessed by a nurse on the same day that the injury occurred,
accessed by a nurse three days later, and seen by a doctor five days after the injury
occurred. He also received pain medication, an x-ray, and a referral for surgery.
[84-3 at 62, 38, 20, 22, 40, 60, 62; 84-4]. Plaintiff alleges that, on a visit to see an
orthopedic doctor on April 2, 2010, Defendants Andreski and Cohen told the
doctor that they did not have time to wait for x-rays and asked that no treatment be
provided that day [1 at ¶47, 49-50]. Despite these alleged requests, Plaintiff did in
fact receive medical treatment that day. [1 at ¶48]. From May 25, 2010-August 4,
2010, Plaintiff received medical care that included physical therapy, rehabilitation,
examinations and pain and anti-inflammatory medication that resulted in the

1

Plaintiff avers that the incident took place on March 13 while Defendants have
presented medical evidence to suggest that the injury occurred on March 12 [84-3
at 62].
2

healing of Plaintiff’s fractures by late July or early August. [84-2 at 30-31; 84-2 at
4-12, 82-87, 25-27, 66, 80; 84-4].
Plaintiff also alleges that, on March 19, 2010, he was called to go to Court
and Defendant Dixon told him to grab his linen and mattress. When Plaintiff
explained to Dixon that he had broken bones in his hands and was unable to carry
the mattress but could carry the linens, the Defendant told him he did not care if he
had ten broken hands and ordered Plaintiff to lift the mattress. When he lifted the
mattress he experienced extreme pain and Defendant Dixon did not make any
attempt to take the mattress from Plaintiff, instead forcing him to carry the mattress
an unspecified distance. Additionally, on April 7, 2010, Plaintiff alleges that, as he
was returning to Ward 401, Defendant Brandon was searching Ward 402.
Defendant Brandon stopped Plaintiff and ordered him to remove all clothing and
also ordered Plaintiff to remove his temporary cast and finger splint on his hands.
The removal of this cast by Plaintiff caused him pain as he had to inexpertly pry
his cast off, resulting in Plaintiff not being able to have his cast properly replaced
after the search.
2. STANDARD OF REVIEW
This Court reviews objections to an R&R on a dispositive motion de novo.
See 28 U.S.C. § 636(b)(1)(c). Summary judgment is appropriate “if the pleadings,
3

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).
3. ANALYSIS
Plaintiff’s amended complaint was stricken with respect to new factual
allegations per the Order, and the naming of additional and previously unknown
defendants is the only substance of the Amended Complaint that remains. [75].
Therefore, the allegations in the original complaint [1] are relevant to Defendants’
Motion, but these allegations are construed as being applicable to the Defendants
as named in the amended complaint [42]. The Defendants named in the amended
4

complaint include Wayne County Sheriff Benny N. Napoleon, Deputy Michael
Brandon, Deputy Linton Dixon, Nurse Tiffany Jones, Social Worker Jacquelyn
Foster, Nurse Tango Cheatham, Nurse Maxine Hawk, Nurse Kimberly Majors,
Nurse Vanessa M. Thomas, Deputy David Andreski, and Deputy Aaron Cohen
[42]. The claims against Napoleon, and against the remaining individual
defendants in their official capacities, have been dismissed. [5; 69].
a. WAYNE COUNTY
Defendants argue that Wayne County cannot be liable under 42 USC §1983
because Plaintiff has not shown that the County had an unconstitutional policy or
that an unconstitutional policy that caused Plaintiff’s harm as required by Monell v.
Depoartment of Social Services, 436 U.S. 658 (1978) [84].
The Court agrees with the Report and Recommendation that this point is
moot, since Wayne County is not a party to this case, and all claims against
Defendants that were previously brought against Defendants in their official
capacities have been dismissed in this matter by Order [5; 69]. Therefore, liability
against Wayne County is not in dispute and the Motion for Summary Judgment on
this issue is denied as moot.

5

b. DELIBERATE INDIFFERENCE TO SERIOUS MEDICAL NEEDS
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 nonobvious, 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 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). To prove the subjective prong, Plaintiff must show that Defendants had a
“’sufficiently culpable state of mind,’ equivalent to criminal recklessness.” Id

6

(citing Farmer v. Brennan, 511 U.S. 825, at 834, 839–40 (1970) (internal quotation
marks omitted).
The Court agrees with the Report and Recommendation that Plaintiff cannot
present a triable issue surrounding any of his allegations of deliberate indifference
to his serious medical needs. While objectively the Plaintiff has indisputedly
proven that his injury was sufficiently serious to require medical care, there are no
material facts in dispute that could lead a reasonable factfinder to conclude that
Defendants were deliberately indifferent to his medical needs.
When his injury occurred, Plaintiff admitted in his deposition that the deputy
did not know his hand was trapped in the door, and merely faulted him for not
making an announcement that the door was being opened, and thus causing his
injury. This does not show deliberate indifference. Since the deputy was not aware
at the time of injury that Plaintiff was injured, he could not have been indifferent.
Additionally, while it is alleged that Defendants Andreski and Cohen told the
Nurse that there was no time for medical treatment, the medical treatment still
occurred, there was no delay, and there are no facts alleged that there was a
sufficiently culpable mindset for the two Defendants.
Moreover, there is medical evidence presented that Plaintiff was assessed by
a nurse on the day of the injury and again three days later. Within five days of the
7

accident he was seen by a doctor and received x-ray and pain medication.
Additionally, his treatment continued for months, with physical therapy,
rehabilitation, and continued prescription of pain and anti-inflammatory
medications to treat the injury. Therefore, there is no dispute that Plaintiff was
treated for his injury quickly without any substantial risk towards Plaintiff.
Because Plaintiff was treated medically, if he were to prevail on a claim of
deliberate indifference, it would have had to be based on inadequate treatment.
This type of deliberate indifference claim requires, as stated above, that “the
plaintiff must place verifying medical evidence in the record to establish the
detrimental effect of the delay in medical treatment.” Santiago, 734 F.3d at 590.
Plaintiff has provided no such evidence. The only medical evidence in the record
demonstrates that Plaintiff’s fractures were almost entirely healed, with only a few
issues remaining, such as lingering soreness, by August 2010.
The facts as viewed in the light most favorable to the Plaintiff establish that,
once the injury occurred and was discovered, Plaintiff received continual medical
care from the date of injury until August 2010. Therefore, the Court agrees with
the Report and Recommendation that there is no genuine issue of material fact that
Defendants were deliberately indifferent to Plaintiff’s medical needs, and the
Motion for Summary Judgment is granted as to these claims.
8

c. CRUEL AND UNUSUAL PUNISHMENT ALLEGATIONS AGAINST
DEFENDANTS DIXON AND BRANDON
As the Report and Recommendation states, Plaintiff raises claims of
unjustified infliction of pain that do not relate to his medical care. Defendants did
not address these allegations in their response, but the Court has an obligation to
examine these allegations to see if they state a viable claim. In re Prison Litg.
Reform Act, 105 F. 3d 1131, 1134 (6th Cir. 1997) (citing 28 U.S.C. §1915(e)(2)(B)
and 28 U.S.C. §1915A).
Plaintiff’s remaining allegations include statements that Defendant Dixon
ordered him to carry his mattress an unspecified distance despite Plaintiff telling
him that he was unable to because of his hand injury, resulting in intense pain.
Upon seeing Plaintiff crying in pain while moving the mattress, Dixon allegedly
did nothing to remedy the situation, and continued to force him to move the
mattress. The other allegation concerns Defendant Brandon requiring Plaintiff to
remove his own cast while he was returning to his ward following a medical
appointment. Brandon, who was performing a search of a different ward from the
one to which Plaintiff was headed, stopped Plaintiff, and forced him to strip down
and to remove his own cast. The removal of the cast was painful and prevented it
from being correctly replaced. These facts are alleged to support a claim that
9

Defendants Dixon and Brandon violated Plaintiff’s Eighth Amendment right to be
protected from unnecessary and wanton infliction of pain. Barker v. Goodrich, 649
F.3d 428, 434 (6th Cir. 2011).
To sustain this claim, Plaintiff must show both objective and subjective
deliberate indifference. Villegas v. Metro. Gov't of Nashville, 709 F.3d 563, 568
(6th Cir. 2013). The 6th Circuit has held that the objective component:
first demands a showing that the detainee faced a substantial risk of
serious harm…The objective component further requires a court to
assess whether society considers the risk that the prisoner complains
of to be so grave that it violates contemporary standards of decency—
that is, it is not one that today's society chooses to tolerate.

Id (citations omitted).
To prove the subjective component, a Plaintiff must show that the
Defendant’s state of mind was sufficiently culpable, or that the “official knows of
and disregards the substantial risk of serious harm facing the detainee.” Id. “[T]he
official must both 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.”
Farmer, 511 U.S. at 837 (1970). “Direct evidence about a defendant's knowledge
is not necessary,” but “the knowledge aspect of the subjective component can be
inferred from the obviousness of the harm stemming from the risk.” Villegas v.
Metro. Gov't of Nashville, 709 F.3d 563, 569 (6th Cir. 2013). Specific to an Eighth
10

Amendment excessive force claim, the inquiry is “whether force was applied in a
good-faith effort to maintain or restore discipline, or maliciously and sadistically to
cause harm.” Id at 570.
Plaintiff has alleged facts that a reasonable factfinder could find to
constitute excessive force. First, having a fractured hand and being ordered to
move heavy objects, and further being ordered to remove your cast by a person
who knows that your hand is broken, could be found to violate contemporary
standards of decency. This is especially true in this case since, according to the
facts presented by Plaintiff, there was absolutely no justification for these actions.
Defendants were not trying to stem any unrest or restore discipline. Instead,
Defendants, who were aware of Plaintiff’s injury either as a result of observing the
cast or from Plaintiff’s informing them of its existence, required him to perform
tasks that caused extreme pain and could significantly have delayed or harmed the
healing of his fracture. There was no discernible peniological or institutional
objective to the actions of Defendants, and instead their acts could reasonably be
seen as an effort to inflict pain with malicious intent.
Finally, the R&R states that these claims must be dismissed because the
claims fail to allege “a pattern of conduct that fits the ordinary concept of
punishment.” [94 at 11]. The R&R cites Dillon v. Wilson, 935 F. 2d 269 (6th Cir.
11

1991), which relied on a 2nd Circuit case, Johnson v. Glick, 481 F. 2d 1028 (2nd
Cir. 1973) to support this proposition. However, the 6th Circuit explicitly
repudiated this decision in Pelfrey v. Chambers, which reversed a lower court
holding that a spontaneous assault on a prisoner does not state a cognizable claim
under the Eighth Amendment because it is not considered “punishment.” Thus the
court has categorically rejected the contention that “an unprovoked attack is not
punishment” under an Eighth Amendment analysis. 43 F.3d 1034, 1036-37 (6th
Cir. 1995).
Plaintiff allegations plainly support a triable issue as to whether the force
used was malicious and sadistic for both claims. Defendants have not provided any
reasoning or evidence to refute these allegations, and did not even address them in
their Response to the Motion for Summary Judgment. Therefore, the Court rejects
the R&R’s contention that the claims against Defendants Dixon and Brandon
should be dismissed. Accordingly,
IT IS ORDERED that the Magistrate Judge’s Report and Recommendation
[94] is ADOPTED IN PART.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary
Judgment [84] is GRANTED IN PART in regards to the claims of deliberate

12

indifference against Tiffany Jones, Jacquelyn Foster, Tango Chetam, Maxine
Hawk, Kimberly Majors, Vanessa Thomas, David Andreski and Aaron Cohen.
IT IS FURTHER ORDERED that Defendants Tiffany Jones, Jacquelyn
Foster, Tango Chetam, Maxine Hawk, Kimberly Majors, Vanessa Thomas, David
Andreski and Aaron Cohen are DISMISSED from this case.
IT IS FURTHER ORDERED that the claims of cruel and unusual
punishment against Defendants Brandon and Dixon survive summary judgment.
IT IS FURTHER ORDERED that Plaintiff will be appointed a pro bono
attorney and following the appearance filing of the pro bono attorney, the court
will set a scheduling conference within 30 days.
SO ORDERED.

Dated: March 2, 2016

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

13