Colwell v. Corizon Healthcare et al
Filing
89
ORDER Adopting 82 Report and Recommendation: Granting 64 Motion for Summary Judgment, filed by Adam Edelman, Rich Hollworth, Corizon Healthcare Signed by District Judge Stephen J. Murphy, III. (CCoh)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DICKIE COLWELL,
Plaintiff,
Case No. 11-cv-15586
v.
HONORABLE STEPHEN J. MURPHY, III
CORIZON HEALTHCARE INC., et al.,
Defendants.
/
ORDER ADOPTING THE REPORT AND
RECOMMENDATION (document no. 82) AND GRANTING
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (document no. 64)
Plaintiff Dickie Colwell is a prisoner at the G. Robert Cotton Correctional Facility
(“Cotton Facility”). Colwell filed suit under 42 U.S.C. § 1983 against health care providers
at the Cotton Facility, claiming they were deliberately indifferent to his serious medical
needs, in violation of the Eighth Amendment to the United States Constitution. The
defendants filed a motion for summary judgment. Mot. Summ. J., ECF No. 64. The Court
referred the motion to a United States magistrate judge, who issued a Report and
Recommendation (“Report”) advising the Court to dismiss the case. Report, ECF No. 82.
Colwell filed eight timely objections. Objection, ECF No. 87.
BACKGROUND
The Report contains a thorough and accurate description of Colwell’s medical and
treatment history, none of which Colwell disputes. Accordingly, the Court will adopt the
Report’s statement of facts. A brief summary of pertinent events, however, will help better
frame the issues.
The gallbladder is an organ located near the liver. Mot. Summ. J., Edelman Aff. ¶ 4,
ECF No. 64-2. It stores bile, a fluid made by the liver to help absorb fat. Id. When the bile
coagulates, it turns into gallstones. Id. A person may suffer from gallstones for years
without any symptoms or pain. Id. The stones become problematic, however, when they
obstruct the bile ducts connecting the gallbladder and liver to the small intestine. When a
gallstone temporarily obstructs the bile duct, it causes biliary colic, a condition producing
nausea and intermittent intense pain. Id. Biliary colic, while painful, is not otherwise
dangerous, and may be treated through a low-fat diet and pain killers. Id. When a gallstone
permanently blocks the bile duct, the complications become severe. Id. The obstructed bile
duct causes fluid to build up, inflaming the gallbladder. Unlike a temporary obstruction, this
condition is continuously painful and can be very dangerous. Id. One way to treat an
inflamed gallbladder is to have surgery to remove it. Id., Bergman Aff. ¶ 6, ECF No. 64-6.
While in prison, doctors diagnosed and treated Colwell for HIV and Hepatitis C. The
physicians prescribed Reyataz—a medication that has side effects on the gallbladder and
liver—to treat Colwell’s HIV. Id., Edelman Aff. ¶ 66, ECF No. 64-2. In 2006, an ultrasound
disclosed gallstones forming in Colwell’s gallbladder. Through 2009 his gallstones were
asymptomatic. Beginning in 2010, Colwell noticed a tender lump in his abdomen. Health
Rec. 44, ECF No. 66-1. Colwell was particularly concerned about the lump because his
mother had been diagnosed with Cholangiocarcinoma, a rare form of cancer originating in
the gallbladder and liver. Id. In October of 2010, an ultrasound revealed multiple gallstones,
but no gallbladder wall thickening, pericholecystic fluid build up, or bile duct dilation. Id. at
8, ECF No. 66-2.
At the start of 2011, Colwell began complaining of pain radiating through his back and
shoulders. Id. at 20. He also felt nauseated, and reported vomiting. Id. at 15. Colwell’s
treating physician, Dr. McGuire, made a request for a surgical consult, noting that Colwell’s
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gallstones had become symptomatic. Id. at 18. Defendant Edelman denied the request,
stating Colwell’s symptoms were only “indicative of biliary colic,” and did not require
surgery. Mot. Summ. J., Edelman Aff. ¶ 5, ECF No. 64-2. He noted that Colwell’s elevated
biluribin levels (an indicator of gallbladder inflammation) were likely caused by the HIV
medication, or a genetic disorder called Gilbert’s Disease. Id. Furthermore, Colwell did not
have elevated levels of GGT and alkaline phosphatase—other indicators of gallbladder
inflammation. Health Rec. 23, ECF No. 66-2. Nor did the 2010 ultrasound indicate that
Colwell's galbladder was inflamed. Mot. Summ. J., Edelman Aff. ¶ 6, ECF No. 64-2. Finally,
Colwell's vital signs, such as his heart rate and blood pressure, were not elevated, as would
be expected if Colwell was in severe pain. Id. ¶ 7. Thus, Edelman recommended treating
Colwell through a low-fat diet and pain killers. The parties dispute whether Edelman’s
decision to cancel the surgical consult evinced a deliberate indifference to Colwell’s health.
Over the next few months, diet and pain killers did not alleviate Colwell’s pain. By
March, Colwell complained of frequent diarrhea, bloating, and hot flashes. Health Rec. 42,
ECF No. 66-2. He also had stabbing pain under his ribs and constant pain radiating through
his right shoulder. Id. His vital signs were still within normal ranges, and his lab results still
showed normal levels of GGT and alkaline phosphatase. Id. Dr. McGuire noted that diet
and pain killers had “[f]ailed” as treatment, and requested a gastroenterological
consultation. Id. Once more, Edelman denied the request, stating: “Not clear why we would
need GI consultation. No lab or vital sign abnormalities associated with these episodes.
Follow on site, treat symptomatically.” Id. at 47. Colwell contends that Edelman’s denial of
the gastroenterological consultation showed he was deliberately indifferent.
3
In April, Nurse Haase and Physician Assistant Campbell evaluated Colwell. Both
noted his condition was getting worse. Haase wrote that Colwell presented with “[n]ausea,
pain under R rib cage radiats to back and R shoulder blade, low grade fever, sweats at
night,” as well as belching and frequent diarrhea. Id. at 2, ECF No. 66-3. And she stated
that his skin and eyes were turning yellow. Id. She noted that his pain was “sharp/stabbing,
with waxing/waning course, lasting minutes before resolving on own.” Id. at 3. Furthermore,
he presented with signs of anxiety and depression as a result of the lack of treatment,
particularly because he worried the lump in his abdomen was cancerous. PA Campbell
requested an ultrasound of the "gallbladder to evaluate for fluid collection, wall thickening
or obstruction.” Id. at 5. Again, Edelman rejected the request. Id. at 8. He explained that
elevated bilirubin levels were likely a result of Gilbert's Disease (though he has not provided
any evidence Colwell suffered from this disease). Id. The lab tests had not revealed
elevated alkaline phosphatase or GGT levels. Id. And Colwell's vital signs were within the
normal range. Id. Colwell argues that Edelman's rejection of his request for an ultrasound
violated his Eighth Amendment rights. This was Edelman’s last direct involvement in
Colwell’s care.
In November of 2011, Colwell was still on a low fat diet and taking pain-killers, but had
not yet had a consultation with a surgeon. His fiancé wrote a letter outlining Colwell's
symptoms and treatment to defendant Hallworth, the CEO of Corizon. Mot. Summ. J.,
Mason Aff. 8, ECF No. 64-5. She also sent a copy of the letter to Karen Mason, Corizon's
director of quality improvement. Id. ¶ 3. On December 27, 2011, Colwell underwent a
surgical consultation with Dr. Prough, who recommended surgery to remove the
gallbladder. Health Rec. 4, ECF No. 66-4. On February 10, 2012, physicians performed a
4
laparoscopic cholecystectomy on Colwell. Id. at 8. Surgery revealed Colwell's gallbladder
was tense and inflamed and full of "white bile," findings consistent with an inflamed
gallbladder. Id. at 15–16. The surgery was successful, and resolved Colwell's symptoms.
Id. at 14.
STANDARD OF REVIEW
Summary judgment is warranted "if the movant shows there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ.
P. 56(a). A fact is "material" for purposes of summary judgment if proof of that fact would
establish or refute an essential element of the cause of action or defense. Kendall v.
Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984). A dispute over material facts is “genuine”
"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). To show that a fact is,
or is not, genuinely disputed, both parties are required to either "cite[] to particular parts of
materials in the record" or "show[] that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact." Fed. R. Civ. P. 56(c)(1). In considering a motion for summary
judgment, the Court must view the facts and draw all reasonable inferences in a light most
favorable to the nonmoving party. 60 Ivy St. Corp. v. Alexander, 822 F.2d 1432, 1435 (6th
Cir. 1987). The Court must take care, in evaluating the motion, not to make judgments on
the quality of the evidence, because the purpose of summary judgment is to determine
whether a triable claim exists. Doe v. Metro. Nashville Pub. Schs., 133 F.3d 384, 387 (6th
Cir. 1998) (“[W]eigh[ing] the evidence . . . is never appropriate at the summary judgment
stage.”).
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DISCUSSION
Colwell brings eight objections to the magistrate's Report advising the Court to
dismiss the case. The objections can be grouped roughly into four categories. First, he
argues the magistrate erred in determining that Edelman was not deliberately indifferent
to an excessive risk to Colwell's safety (objections 1, 2, 3, 4 and 5). Second, Colwell
objects to the magistrate's recommendation that the Court dismiss Hallworth (objection 6).
Next, he contends the magistrate incorrectly found Corizon did not have a policy of
constitutional rights violations (objection 7). Finally, Colwell argues the Court should appoint
counsel (objection 8). The Court will address each set of objections in turn.
I.
Edelman Did Not Violate Colwell's Eighth Amendment Rights
The Eighth Amendment states: “Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII. The
Amendment “forbids prison officials from unnecessarily and wantonly inflicting pain on an
inmate by acting with deliberate indifference toward the inmate’s serious medical needs.”
Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 895 (6th Cir. 2004) (internal quotation marks
omitted). To show that a prison official acted with deliberate indifference, the prisoner must
suffer from a “sufficiently serious” medical condition. Id. Furthermore, the prison 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.” Id. at 896. The standard
is satisfied when a prisoner “alleges that prison authorities have denied reasonable
requests for medical treatment in the face of an obvious need for such attention where the
inmate is thereby exposed to undue suffering or the threat of tangible residual injury.” Scott
v. Ambani, 577 F.3d 642, 648 (6th Cir. 2009) (citations omitted); see also Blackmore, 390
6
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 the constitutional infirmity.”).
In evaluating an Eighth Amendment claim, courts "distinguish between cases where
the complaint alleges a complete denial of medical care and those cases where the claim
is that a prisoner received inadequate medical treatment." Alspaugh v. McConnell, 643
F.3d 162, 169 (6th Cir. 2011) (internal quotations omitted). When a prisoner claims his care
was inadequate, "federal courts are generally reluctant to second guess medical
judgments." Id. There are a narrow range of cases, however, when the medical treatment
is "so woefully inadequate as to amount to no treatment at all." Id.
In the present case, there is no doubt an inflamed gallbladder is a serious condition.
The only question is whether Edelman knew Colwell suffered from an inflamed gallbladder
or blocked bile duct, and failed to render adequate treatment. See Rouster v. Cnty. of
Saginaw, 749 F.3d 437, 446–47 (6th Cir. 2014). If there are plausible reasons why
Edelman thought Colwell suffered from biliary colic, as opposed to an inflamed gallbladder,
the Court must dismiss the case, even if the Court otherwise believes Edelman rendered
a substandard level of care.
A. The Denial Of Surgical Consultation
Edelman has provided a plausible explanation for why he thought Colwell exhibited
signs of biliary colic and not gallbladder inflammation. At the time of the surgical
consultation request, Colwell's blood work was inconsistent with gallbladder inflammation.
Colwell did not have elevated levels of GGT or alkaline phosphatase, two indicators that
a gallstone had fully blocked his bile duct. Health Rec. 23, ECF No. 66-2. His bilirubin level
7
was not high enough to indicate an inflamed gallbladder. And Edelman stated the high
bilirubin levels were more easily explained as a side effect of the HIV medication or a
symptom of Gilbert's disease. Mot. Summ. J., Edelman Aff. ¶ 5, ECF No. 64-2.
In addition, Colwell recently had an ultrasound of the gallbladder. The ultrasound
"ruled out gallbladder wall thickening, pericholecystic fluid, or bile duct dilation," all signs
of an obstruction of the bile duct. Id. ¶ 6. Nor did he have involuntary indicia of pain, such
as an elevated heart rate or blood pressure. Id. ¶ 7. Based on those factors, the Court
cannot second guess Edelman's initial determination that Colwell suffered from biliary colic,
but not a blocked bile duct.
Furthermore, Edelman was not deliberately indifferent by recommending treatment
with painkillers and diet changes, not surgery. The Sixth Circuit recently held that a prison
physician did not violate a prisoner's Eighth Amendment rights when he recommended
conservative treatment instead of a surgical consultation. Titlow v. Corr. Med. Servs., Inc.,
507 F. App'x 579, 585 (6th Cir. 2012). The court reasoned that the physician's
recommendation of "a specific alternative treatment plan" and his desire to gather more
information before proceeding to surgery plausibly explained his denial of a surgical
consultation. Id.
In the present case, Colwell first reported pain in his abdomen on January 4, 2011.
Dr. McGuire requested a surgical consult a week later. Health Rec. 18, ECF No. 66-2. In
denying the request, Edelman provided a specific alternative treatment plan—Colwell
should eat less fat and take painkillers. Id. at 23. Dr. Bergman, one of the doctors that
recommended Colwell undergo surgery in 2012, filed an affidavit stating gallstones can be
"managed effectively through conservative treatment such as diet modification and
8
analgesic medication." Mot. Summ. J., Bergman Aff. ¶ 4, ECF No. 64-6. Furthermore,
Colwell has Hepatitis C, HIV, and is on many different medicines. Edelman was justified
in trying to avoid invasive surgery—which would require anesthesia and come with its own
set of risks, especially for someone with so many other health problems.1 Accordingly, the
Court agrees with the magistrate that the initial denial of a surgical consult did not deny
Colwell his Eighth Amendment rights.
B. Denial Of Gastroenterological Consultation
Colwell next argues Edelman violated his constitutional rights by denying his request
for a gastroenterological consultation. By the end of March, Colwell had been on a low-fat
diet and taking aspirin for two months. Yet, Colwell claimed his condition was deteriorating.
He complained of constant stabbing pain in his upper right quadrant, consistent with what
Edelman described as a symptom of gallbladder inflammation. Health Rec. 42, ECF No.
66-2. He also claimed to have frequent diarrhea, bloating, and night sweats. Id. His treating
physician, Dr. McGuire, noted that conservative treatment had failed, and requested a
gastroenterological consultant. Id.
Edelman again denied the request. He stated: "Not clear why we would need GI
consultation. No lab or vital sign abnormalities associated with these episodes. Follow on
site, treat symptomatically." Id. at 47, ECF No. 66-2. Consistent with Edelman's statements,
the objective evidence in Colwell's file documented a low heart rate, normal blood pressure,
no fever, and an absence of lab work showing high GGT or alkaline phosphate levels.
1
Prior to undergoing surgery, physicians counseled Colwell on the extensive risks and
complications that could arise during the procedure. Health Rec. 18, ECF No. 66-4.
9
Thus, the objective evidence was inconsistent with Colwell's description of his symptoms,
and supported a determination Colwell suffered from biliary colic.
Furthermore, Edelman was not deliberately indifferent to Colwell's health by requiring
him to continue with conservative treatment. For example, in Titlow, a woman suffered from
breast pain. 507 F. App'x at 581. Her physician requested a surgical consultation that an
advisor denied. Id. at 582. Instead, the doctor recommended she stop taking certain
hormonal drugs linked to breast sensitivity. Id. Although she ceased taking the medication,
her breast pain continued. Over the next three years, her pain continued unabated, even
though she no longer took the hormonal drugs. On four separate occasions, her doctors
requested surgical consultations; the advisor denied each request. In January of 2008, a
doctor appealed one of the denials to a review committee. The committee denied the
surgical consultation request without explanation. Id.
The Sixth Circuit held that the 2008 denial violated her Eighth Amendment rights. It
noted that after three years of ineffective treatment, it was clear "that more conservative
treatment options failed." Id. at 586. Moreover, extensive treatment records gathered
between 2005 and 2008 provided doctors with all the information they would need to make
a fully informed determination. Id. Finally, the review committee did not provide any
justification for its denial, thus making it less likely the denial had a medical rationale. Id.
In this case, Edelman's denial of a GI consult was plausibly based on medical
judgment. Unlike in Titlow, Colwell had only been undergoing conservative treatment for
two months, not three years. The Court cannot second-guess Edelman's determination that
10
two months is not a long enough trial period for a course of treatment.2 Admittedly, Dr.
McGuire believed conservative treatment had failed as a treatment option. Health Rec. 42,
ECF No. 66-2. But the difference in opinion between Dr. McGuire and Edelman is outside
of the Court's competence, and is not so egregious or obvious as to be a constitutional
violation. Accordingly, Edelman reasonably believed Colwell suffered from biliary colic, and
his decision to continue with conservative treatment was plausibly based on medical
judgment.
C.
Denial Of Ultrasound
Three weeks after requesting a GI consult, Colwell's condition continued to
deteriorate. On April 14, 2011, he had an appointment with RN Haase. He reported nausea,
pain under his rib cage that radiated through his back and shoulder, a fever, night sweats,
and belching. Id. at 2, ECF No. 66-3. Throughout each day, he would have multiple
episodes of diarrhea. Id. And RN Haase noted that his skin and eyes were turning yellow.
Id. Furthermore, his bilirubin levels had spiked significantly over the past month. Id. at 5.
After reviewing the symptoms, PA Campbell requested an updated gallbladder ultrasound
to "evaluate for fluid collection, wall thickening or obstruction." Id.
Edelman denied the requested ultrasound. Id. at 8. He explained that Colwell's vital
signs and lab work were not consistent with an obstructed bile duct or gallbladder
inflammation. In support he noted there were more likely explanations for the bilirubin spike,
such as Gilbert's disease or the HIV medication. Id.; Mot. Summ. J., Edelman Aff. ¶ 5, ECF
2
The magistrate's Report suggests Colwell may not have followed the conservative
treatment plan, as "there is no evidence analgesics were offered to or requested by
Colwell at this juncture to symptomatically treat his pain." Report 25, ECF No. 82. The
Court notes that every medical report from the relevant time period states Colwell was
taking aspirin, an analgesic pain killer. See Health Rec. 37, 42, 44, 46, ECF No. 66-2.
11
No. 64-2. Furthermore, his GGT and alkaline phosphate levels were not elevated, which
Edelman consistently stated would accompany a blocked bile duct. Health Rec. 8, ECF No.
66-3. Finally, he noted that other vital signs were inconsistent with distress. Id. PA
Campbell described Colwell as having "no acute distress," and Colwell's pulse, breathing
and blood pressure were all within normal limits. Id. at 3.
To be sure, other criteria indicated a blockage. Colwell complained of pain radiating
through his back and right shoulder. Id. at 2. And he had a low grade fever and guarding,
both of which Edelman stated were objective indicators of an inflamed gallbladder. Id.
Moreover, unlike surgery, merely getting another ultrasound is not invasive or risky. And
the request appears reasonable because it had been nearly six months since the last
ultrasound. Nonetheless, because Edelman still believed Colwell suffered from biliary colic,
not an inflamed gallbladder, the Court must grant defendant's motion for summary
judgment. See Rouster, 749 F.3d at 451–52 (holding that prison official was not deliberately
indifferent, even though he incorrectly diagnosed prisoner with alcohol withdrawal, when
some of the symptoms were inconsistent with withdrawal).
D.
Edelman Did Not Ignore An Excessive Risk Of Colwell Developing Cancer
Colwell contends that he was at serious risk for Cholangiocarcinoma, because he is
Native American (an ethnic group susceptible to this type of cancer), his mother had
recently died from cancer, and because chronic liver disease, such as Hepatitis C, can
increase the risk of developing cancer. Objection 7–8, ECF No. 87. By not testing for the
cancer, Colwell argues, Edelman put him at excessive risk of death or serious injury.
Edelman has provided a plausible explanation, however, for his decisions and
explained why he did not think Colwell was likely to develop cancer. In his affidavit,
12
Edelman stated that "Cholangiocarcinoma is not hereditary." Mot. Summ. J., Edelman Aff.
¶ 39, ECF No. 64-2. Furthermore, while Edelman acknowledged that Hepatitis C can
increase the risk of Cholangiocarcinoma, "there was no indication in the [2010] ultrasound
that the patient was at risk." Id. And Dr. Hutchinson, an infectious disease specialist
(though not, apparently, a cancer specialist) was watching Colwell for complications arising
from his HIV and Hepatitis C treatment. Id. Finally Dr. Bergman stated in an affidavit that
absent inflammation of the gallbladder, "there was a vanishingly small risk that the patient's
[gallstones] would cause cancer of any kind." Id., Bergman Aff. ¶ 5, ECF No. 64-6. While
Colwell has provided some evidence he was at heightened risk of developing cancer,
Edelman provided a plausible medical explanation for his actions.
E.
Colwell's Attached Wikipedia And Medscape
Articles Do Not Change The Court's Conclusion
Colwell attempted to introduce multiple Wikipedia and Medscape articles as evidence
supporting his brief. The magistrate recommended the Court find the articles inadmissible
as hearsay. In the alternative, the magistrate stated the information in the articles does not
change the outcome of the case. The Court agrees with the magistrate, for the reasons
articulated in the Report, that the articles are inadmissible. Even if the articles were
admissible evidence, however, they would not change the Court's conclusion.
The information in the articles is generally consistent with Edelman's affidavit.
According to Colwell's articles, the primary cause of gallstones "is from a high fat, high
cholesterol diet." Resp. 97, ECF No. 73. And one initial treatment option is to consume less
fat. Id. at 95–96. This treatment option was consistent with Edelman's actions.
Furthermore, the articles state that when a gallstone blocks a bile duct, thereby
causing gallbladder inflammation, it "causes severe pain." Id. at 98. Yet, one reason
13
Edelman concluded Colwell did not have gallbladder inflammation was that his heart rate
and blood pressure were inconsistent with a person in severe pain. In addition, the
wikipedia article states that "elevated alkaline phosphatase" levels were an indication of an
inflamed gallbladder, as were "gallbladder wall thickening . . . pericholecystic fluid, and
gallbladder dilation." Id. at 3. As explained above, Colwell had normal levels of alkaline
phosphatase, and a 2010 ultrasound showed no wall thickening, pericholecystic fluid, or
gallbladder dilation.
Finally, the articles support Edelman's conclusion that Colwell was not excessively
at risk for Cholangiocarcinoma. The wikipedia article states that, while Native Americans
are an at risk group, the cancer predominately occurs in women in their 60s and 70s (such
as Colwell's mother), not in men in their 40s. Id. at 19. Furthermore, the articles recite that
elevated GGT and alkaline phosphatase levels indicate cancer. Id. at 7. And, "the presence
of gallstones is not clearly associated with cholangiocarcinoma." Id.
The only time the articles clearly contradict Edelman's affidavit is when they state that
patients with "chronic" gallbladder inflammation may have normal lab values and nonspecific symptoms. Id. at 33. This assertion is inconsistent with Edelman's claims that high
GGT and alkaline phosphatase levels are reliable indicators that a gallstone is obstructing
a bile duct. The inconsistency is disconcerting because surgery showed Colwell suffered
from chronic gallbladder inflammation and bile duct obstruction. That Colwell did a better
job than his physicians in diagnosing his condition (using only evidence gleaned from
Wikipedia, no less), is enough to give the Court pause. Nonetheless, although Edelman
incorrectly diagnosed Colwell's symptoms, the law is clear that "a plaintiff alleging
deliberate indifference must show more than negligence or the misdiagnosis of an ailment."
14
Rouster, 749 F.3d at 447 (6th Cir. 2014) (internal quotations omitted). Because the article
are inadmissible and show only that Edelman incorrectly evaluated Colwell's condition, the
Court must dismiss the claim.
II.
The Court Will Dismiss The Claims Against Hallworth
In November of 2011, Colwell's fiancé sent a letter to Corizon CEO Richard Hallworth.
In the letter, she outlined Colwell's symptoms and his treatment to that date. Mot. Summ.
J., Mason Aff. 8–9, ECF No. 64-5. Colwell argues the letter put Hallworth on notice that
doctors were providing inadequate care, and that he failed to take corrective action. The
magistrate recommended dismissing the claim because there is no evidence Hallworth ever
received the letter. Report 28, ECF No. 82.
Briana Anderson, a patient safety officer at Corizon, has filed an affidavit stating that
letters sent to Hallworth are directed to the compliance department for evaluation and
response. Mot. Summ. J., Anderson Aff. ¶ 3, ECF No. 64-4. If Hallworth reviewed the letter,
he would put his initials in the top corner. Id. ¶ 5. Because the letter required clinical review,
she was the officer that received and evaluated the letter. Id. ¶ 3. According to her notes,
she forwarded the letter to Dr. Orlebeke and Dr. McQueen, two regional medical officers.
Id. ¶ 6. Furthermore, based on emails attached to the Karen Mason's affidavit, physicians
had scheduled Colwell for surgery as early as December 19, 2011, though he did not
receive the surgery until February of 2012. Mot. Summ. J., Mason Aff. 5, ECF No. 64-5.
For two reasons, the Court will grant Hallworth's motion for summary judgment
because the is no genuine dispute of any material fact. First, there is no evidence that he
ever saw the letter. Anderson's affidavit states that Hallworth would put his initials in the
corner of letters that he read. Because Colwell's letter does not contain any initials, there
15
is no evidence that he saw the letter. Second, even if Colwell had seen the letter, the
evidence would not show that he was deliberately indifferent. Indeed, by December 19,
roughly a month after Colwell's fiancé mailed the letter, Colwell was scheduled for an
operation to remove his gallbladder. If anything, the relatively prompt response to Colwell's
letter shows that Corizon acted appropriately.3
III.
The Court Will Dismiss The Claims Against Corizon
Colwell also brought 42 U.S.C. § 1983 claims against Corizon, arguing that it had a
policy of rendering unconstitutionally poor treatment as a way to save money. To state a
claim against Corizon, Colwell must identify official policies, the actions of officials with final
decision making authority, a policy of inadequate training or supervision, or a custom of
acquiescence of federal rights violations. See Thomas v. City of Chattanooga, 398 F.3d
426, 429 (6th Cir. 2005). More to the point, the allegedly illegal policies or customs must
actually lead to a violation of a constitutional or statutory right in this particular case. As the
Sixth Circuit recently explained, "before reaching the issue of whether the municipality was
deliberately indifferent," the "plaintiff must demonstrate a constitutional violation at the
hands of an agent or employee of the municipality." Fox v. DeSoto, 489 F.3d 227, 238 (6th
3
The magistrate's Report also advises the Court to dismiss Hallworth because a
"supervisory official's awareness of a complaint of allegedly illegal conduct, and her
subsequent failure to take corrective action, is insufficient to trigger § 1983 liability." Report
28, ECF No. 82. The standard applies when the underlying constitutional or statutory
violation requires a positive act. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (finding
supervisor not liable when he did not stop subordinates from intentionally discriminating on
the basis of race and religion); Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984)
(finding prison supervisor not liable when he failed to stop subordinates from harassing a
blind prisoner). The standard does not apply, however, when a prisoner alleges officials are
deliberately indifferent to an excessive risk to a prisoner's health. See Spencer v.
Bouchard, 449 F.3d 721, 730–31 (6th Cir. 2006) abrogated on other grounds by Jones v.
Bock, 549 U.S. 199 (2007); Allen v. Caruso, No. 08-14252, 2009 WL 3063315, at *4–5
(E.D. Mich. 2009). In such a case, the failure to act is the constitutional violation.
16
Cir. 2007); see also Gray v. City of Detroit, 399 F.3d 612, 617 (6th Cir. 2005) (finding that
municipal liability "must rest on a direct causal connection between the policies or customs
of the [local government entity] and the constitutional injury to the plaintiff").
In this case, Colwell has not established that any of Corizon's employees violated his
constitutional rights. At most, he demonstrated that Edelman incorrectly diagnosed him with
biliary colic, as opposed to an inflamed gallbladder. But absent an unconstitutional action
by a subordinate, Colwell cannot establish that Corizon violated his constitutional rights.
IV.
Appointment Of Counsel
Colwell also appeals the magistrate judge's denial of counsel. Order, ECF No. 83.
Under 28 U.S.C. § 1915(e), the "court may request an attorney to represent any person
unable to afford counsel." Colwell first requested counsel on June 26, 2014, after Corizon's
motion for summary judgment had been fully briefed. Mot. App. Counsel, ECF No. 81.
Because the Court agrees with the magistrate that the case should be dismissed, the Court
will also deny the motion as moot.
CONCLUSION
The Court is sympathetic to Colwell's claims. Prisoners, unlike people not
incarcerated, do not have options about what doctors to see, or what treatment plans to
undergo. They are at the mercy of the prison staff. For better or worse, however, the
Constitution prohibits only "cruel and unusual punishments." U.S. Const. amend. VIII.
Courts have interpreted that phrase to preclude claims based on shoddy medical treatment,
or obvious-in-hindsight misdiagnosis. See Rouster v. Cnty. of Saginaw, 749 F.3d 437 (6th
Cir. 2014). While the Court understands Colwell's frustration at being denied surgery for
17
more than year, Sixth Circuit caselaw makes clear that the denial did not violate the Eighth
Amendment. Accordingly, the Court must dismiss the case.
ORDER
WHEREFORE, it is hereby ORDERED that the magistrate's Report and
Recommendation (document no. 82) is ADOPTED.
IT IS FURTHER ORDERED that Corizon's Motion for Summary Judgment (document
no. 64) is GRANTED.
IT IS FURTHER ORDERED that the case is DISMISSED WITH PREJUDICE.
SO ORDERED.
s/Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
Dated: November 26, 2014
I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on November 26, 2014, by electronic and/or ordinary mail.
s/Carol Cohron
Case Manager
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