Kensu v. Rapelje et al

Filing 186

ORDER granting 162 Motion for Summary Judgment. Signed by District Judge Victoria A. Roberts. (SSch)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TEMUJIN KENSU,
Plaintiff,
v.

Case No. 12-11877
Hon. Victoria A. Roberts

LLOYD RAPELJE, Warden, et al,
Defendants.
/
ORDER GRANTING DEFENDANTS’ MOTION FOR JUDGMENT ON THE
PLEADINGS AND FOR SUMMARY JUDGMENT [DKT #162]
I.

INTRODUCTION
Temujin Kensu (“Kensu”) is a prisoner in the custody of the Michigan Department

of Corrections (“MDOC”).
His Second Amended Complaint alleges five causes of action: (Count I) Eighth
Amendment violation for deliberate indifference to Kensu’s alleged wheat and dairy
intolerance; (Count II) Retaliation under the First Amendment; (Count III) Intentional
Infliction of Emotional Distress; (Count IV) Discrimination under Title II of the Americans
with Disabilities Act; and, (Count V) Discrimination on the Basis of Handicap under the
Rehabilitation Act.
Kensu has another suit pending: Kensu v. Buskirk, et al, No. 13-10279. The
Buskirk case alleges deliberate indifference to serious medical needs concerning his
spine and joints. The two lawsuits involve some of the same defendants. In an earlier
order, the Court declined to consolidate the cases since they do not involve a common
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question of law or fact, and consolidation could be prejudicial to Defendants. Dkt. No.
144.
On September 1, 2015, the Court entered an Order granting summary judgment
on behalf of the Corizon Defendants in both cases. Kensu v. Buskirk, et al, No.
13-10279, Dkt. No. 114; Kensu v. Rapelje, et al, No. 12-11877, Dkt. No. 184. The earlier
Order in Rapelje concluded Kensu’s Eighth Amendment claim failed, in part, because
he did not allege the existence of a sufficiently serious medical need.
The matter is now before the Court on a Motion for Judgment on the Pleadings
and Summary Judgment filed by MDOC Defendants Lloyd Rapelje, Dr. Jeffrey C.
Stieve, Susan McCauley, R.N., Karen Peters, R.N., Cheryl Groves, Russell Vittitow,
Terry Malloy, R.N., Meaghan Walters, and Dr. William Borgerding.
Defendants’ Motion is GRANTED.
II.

MOTION FOR JUDGMENT ON THE PLEADINGS AND FOR SUMMARY
JUDGMENT
A.

Standard of Review

A Motion for Judgment on the Pleadings, or in the alternative, Motion for
Summary Judgment, was filed by Defendants. Response and reply briefs were filed.
Defendants seek to dismiss the case under 12(c) and 56(a) of the Rules of Civil
Procedure. Defendants challenge the sufficiency of the pleadings and contend there
are no genuine issues of material fact. Discovery is now closed.
If matters outside the pleadings are presented to and not excluded by the court
on either a motion under Rule 12(b)(6) or 12(c), the motion must be treated as one for
summary judgment under Rule 56. Fed. R. Civ. P. 12(d).
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Defendants attach deposition transcripts to their motion. Accordingly, the Court
treats it as one for summary judgment.
Summary judgment must be granted "if there is no genuine issue as to any
material fact and if the moving party is entitled to judgment as a matter of law."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57 (1986). A fact is material if it
could affect the outcome of the case based on governing substantive law. Id. at 248. A
dispute about a material fact is genuine if on review of the evidence, a reasonable jury
could find in favor of the nonmoving party. Id.
The moving party bears the initial burden to demonstrate the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If
the movant meets this burden, the nonmoving party must "go beyond the pleadings and
. . . designate specific facts showing that there is a genuine issue for trial." Id. at 324.
Summary judgment is appropriate if the party with the burden of proof at trial fails to
establish the existence of an element that is essential to that party's case. Muncie
Power Products, Inc. v. United Technologies Auto., Inc., 328 F.3d 870, 873 (6th Cir.
2003). "The mere existence of a scintilla of evidence in support of the plaintiff's position
will be insufficient; there must be evidence on which the jury could reasonably find for
the plaintiff." Anderson v. Liberty Lobby, Inc., 477 U.S. at 252. Conclusory allegations
are insufficient to create a genuine issue of material fact. Johari v. Big Easy
Restaurants, Inc., 78 F. App'x 546, 548 (6th Cir. 2003).
When reviewing a summary judgment motion, the court must view the evidence
and all inferences drawn from it in the light most favorable to the nonmoving party.
Kochins v. Linden Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir. 1986). "The Court need
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consider only the cited materials, but it may consider other materials in the record."
Fed.R.Civ.P. 56(c)(3). The Court's function at this stage "is not to weigh the evidence
and determine the truth of the matter but to determine whether there is a genuine issue
for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. at 249.
To show a nonmoving party lacks proof to prevail at trial, the moving party is
generally required to identify a basis for its motion and point out to the court that there is
an absence of evidence to support the issue in question. Celotex Corp. v. Catrett, 477
U.S. at 323 and 325. See also, Elkins v. Richardson-Merrell, Inc., 8 F.3d 1068, 1071
(6th Cir. 1993) (defendant moving for summary judgment who does not bear the
ultimate burden at trial need only point out the lack of a genuine issue regarding
causation). A party asserting that a fact is or is not in dispute must support the
assertion by citing to particular materials in the record in a way that supports its position,
or by showing the adverse party cannot produce admissible evidence to support the
fact. Fed. R. Civ. P. 56(c)(1).
In response to a motion for summary judgment, the nonmoving must
demonstrate why summary judgment would not be proper. If a party fails to properly
support its own fact assertions or address another party’s assertions of fact, the Court
may grant summary judgment. Fed. R. Civ. P. 56(e)(3).
B.

Count I: 42 U.S.C. §1983

Kensu claims an Eighth Amendment violation; he says Defendants were
deliberately indifferent and did not treat his severe wheat/gluten and dairy intolerance,
denied him access to a proper and nutritious diet, denied access to supplemental
nutrition, and refused to accommodate or compensate for food allergies.
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In another Order involving other defendants, this Court concluded that Kensu
failed to prove the existence of a sufficiently serious medical need. This is the law of the
case. See generally, Rouse v. DaimlerChrysler Corp., 300 F.3d 711, 715 (6th Cir. 2002)
(findings made at one point in the litigation become the law of the case for subsequent
stages of that same litigation). Hence, this Eighth Amendment claim fails against these
Defendants.
Defendants are entitled to summary judgment on Count I.
C.

Count II: Retaliation

Kensu alleges retaliation under the First Amendment against Defendants Stieve,
Borgerding, Vittitow, Rapelje, and Groves.
To succeed on a First Amendment retaliation claim, three elements must be
established: “(1) the plaintiff engaged in protected conduct; (2) an adverse action was
taken against the plaintiff that would deter a person of ordinary firmness from continuing
to engage in that conduct; and, (3) there is a causal connection between elements one
and two—that is, the adverse action was motivated at least in part by the plaintiff's
protected conduct.” Cox v. Jackson, 579 F. Supp. 2d 831, 848 (E.D. Mich. 2008), citing,
Thaddeus–X v. Blatter, 175 F.3d 378, 394 (6th Cir.1999) (en banc) (plurality op.).
In a retaliation claim, the plaintiff has the burden to establish that his protected
conduct was a motivating factor behind the harm. Once this is established, the burden
shifts to the defendant; if the defendant can show he would have taken the same action
in the absence of the protected activity, he is entitled to prevail on summary judgment.
Thaddeus-X, at 399.
Kensu fails to establish his protected conduct motivated Defendants' actions.
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Kensu says he engaged in protected conduct by filing grievances, that Defendants
retaliated against him by denying care, among other actions, and that the timing of the
events and Defendants' actions demonstrates a causal connection.
These are bare causal allegations. The “summary judgment hurdle is not
insubstantial,” and bare allegations of malice do not suffice to establish a constitutional
claim for retaliation. Thaddeus-X v. Blatter, 175 F.3d 378, 399-400 (6th Cir. 1999). In
considering whether the causation element has been met, circumstantial evidence, like
the timing of events, is sometimes sufficient. Id. But in Thaddeus, the plaintiffs did
more than simply allege retaliation: in their verified complaint and in an additional
affidavit, they put forward specific, nonconclusory allegations and identified affirmative
evidence that could support a jury verdict at trial. Id.
Kensu has not done this. The Second Amended Complaint only alleges the
presence of “suspicious timing of Defendants’ adverse actions. . .” In his response to
Defendants’ motion for summary judgment, Kensu fails to go beyond the pleadings to
supply specific facts to address Defendants’ argument that the retaliation claim lacks
substance. Kensu does not identify affirmative evidence that could support a jury
verdict.
“[T]he party opposing the motion may not rely solely on the pleadings and must
adduce more than a mere scintilla of evidence; if the nonmoving party fails to make a
sufficient showing on an essential element of the case with respect to which the
nonmovant has the burden, the moving party is entitled to summary judgment as a
matter of law.” Thompson v. Ashe, 250 F.3d 399, 405 (6th Cir.2001).
Kensu has failed to make a sufficient showing on the element of causation and
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cannot survive summary judgment.
Defendants Stieve, Borgerding, Vittitow, Rapelje, and Groves are entitled to
summary judgment on Count II.
D.

Count III: Intentional Infliction of Emotional Distress

Under Michigan law, intentional infliction of emotional distress requires extreme
or outrageous conduct which intentionally or recklessly caused extreme emotional
distress. Garretson v. City of Madison Heights, 407 F.3d 789, 799 (6th Cir. 2005).
“Liability for the intentional infliction of emotional distress has been found only where the
conduct complained of has been so outrageous in character, and so extreme in degree,
as to go beyond all possible bounds of decency, and to be regarded as atrocious and
utterly intolerable in a civilized community.” Id. (Citations omitted).
Count III says Defendants Stieve, Malik, McCauley, Peters, and Borgerding
intentionally inflicted emotional distress on Kensu by: (1) subjecting him to unprovoked
and unjustified mistreatment and humiliation; (2) treating Kensu in an extremely and
outrageously abusive manner; (3) intentionally depriving Kensu of medical care and
treatment; and, (4) intentionally depriving Kensu of access to a meaningful
administrative grievance process.
Kensu fails to address Defendants' summary judgment request in his response.
Drawing all justifiable inferences in favor of Kensu, none of the conduct meets the
requisite level of outrageousness.
Defendants Stieve, Malik, McCauley, Peters, and Borgerding are entitled to
summary judgment on Count III.
E.

Count IV: Discrimination under the Americans with Disabilities Act
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Count IV of the Second Amended Complaint alleges (Count IV) Discrimination
under the Americans with Disabilities Act, 42 U.S.C. §12101-12213.
Defendant’s conduct in response to Kensu’s requests for dietary accommodation
was medical treatment. The ADA does not provide relief for alleged incompetent
treatment. Carrion v. Wilkinson, 309 F. Supp. 2d 1007, 1016 (N.D. Ohio 2004) (granting
motion to dismiss because claims that prisoner with diabetes was denied medical
treatment - a proper diet - is not the type of claim that the ADA and the Rehabilitation
Act were intended to cover); Stevenson v. Pramstaller, No. 07-14040, 2008 WL
5085145, at *3 (E.D. Mich. Oct. 2, 2008) report and recommendation adopted, No.
07-14040, 2009 WL 804748 (E.D. Mich. Mar. 24, 2009) (granting defendants’ motion for
summary judgment on ADA claim because state prisoner alleging incompetent medical
treatment is not complaining of being excluded from a prison service, program or
activity, or of discrimination based on his disability).
Defendants Rapelje, Stieve, McCauley, Peters, Groves, Vittitow, Walters and
Borgerding are entitled to Summary Judgment on Count IV.
F.

Count V: Discrimination under the Rehabilitation Act

Kensu says Defendants’ conduct in response to his requests for dietary
accommodations was discrimination under Section 504 of the Rehabilitation Act of
1973, 29 U.S.C. § 794.
This claim fails for the same reason the ADA claim fails: Kensu alleges denial of
medical treatment on the basis of improper diet, and that is not actionable under the
Rehabilitation Act. Carrion v. Wilkinson, 309 F. Supp. 2d at 1016.
Defendants Rapelje, Stieve, McCauley, Peters, Groves, Vittitow, Walters and
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Borgerding are entitled to summary judgment on Count V.
III.

CONCLUSION
Defendants’ Motion is GRANTED; Judgment will enter in their favor.
IT IS ORDERED.

S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: September 10, 2015
The undersigned certifies that a copy of this
document was served on the attorneys of
record by electronic means or U.S. Mail on
September 10, 2015.
s/Linda Vertriest
Deputy Clerk

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