Kirkland v. Keeling et al

Filing 58

ORDER Accepting and Adopting the Magistrate Judge's August 14, 2013 Report and Recommendation 39 denying in part and granting in part 16 Motion to Dismiss filed by John Kearney; granting 25 Motion for Summary Judgment filed by Thomas Birkett, and granting 37 Motion to Dismiss filed by Marvin Keeling. Signed by District Judge Nancy G. Edmunds. (JCur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

George Kirkland, Jr., #566432,
Case No. 12-15275
Plaintiff,
Honorable Nancy G. Edmunds
v.
Marvin Keeling, John Kearney, and Thomas
Birkett,
Defendants.
/

ORDER ACCEPTING AND ADOPTING THE MAGISTRATE JUDGE'S AUGUST 14,
2013 REPORT AND RECOMMENDATION [39]
Plaintiff George Kirkland, Jr., a sixty-six year-old man incarcerated at Central Michigan
Correctional Facility at the beginning of this suit, has filed a 28 U.S.C. § 1983 action for
negligent actions three prison officials allegedly took regarding Plaintiff's various alleged
medical concerns. (Dkt. 1, Compl.) Plaintiff sues Dr. Marvin Keeling, a doctor at the
prison, John Kearney, a physician's assistant at the prison, and Thomas Birkett, the
prison's warden. (Compl. at 1-2.) Plaintiff seeks to recover for alleged injuries relating to
the prison's failure to remove a tube from his left eye, a broken foot, and athlete's foot.
Plaintiff requests money damages amounting to $1,500,000.00 for his eye
complications and other medical concerns. (Compl. at 14-15.)
Defendant John Kearney filed a motion to dismiss and Defendant Thomas Birkett filed
a motion for summary judgment. (Dkt. 16, 25.) Defendant Keeling joined in Kearney's
motion to dismiss. (Dkt. 37.) The Court referred all pretrial matters to the magistrate judge.
(Dkt. 17.)

The magistrate judge addressed the three injuries that Plaintiff alleged: the eye
implant injuries; the broken foot; and the athlete's foot.
The magistrate judge first discussed how, for Plaintiff to succeed on a deliberate
indifference claim against Defendants, he would have to prove both an objective and
subjective element. (Report and Recommendation (R&R) at 13.)
The magistrate judge addressed the eye implant allegations against Defendants
Keeling and Birkett. (Id. at 13.)
The magistrate judge reasoned that Plaintiff could not satisfy the subjective
requirement as to Defendant Keeling. (R&R at 13-14.) The magistrate judge pointed out
that Defendant Keeling could not remove the eye implant and that the only thing Defendant
Keeling could do, request a referral to an ophthalmologist, he did do. (Id. at 15.)
The Court has reviewed Plaintiff's objection concerning Defendant Keeling. Plaintiff
does not show in any way how Defendant Keeling could satisfy the subjective element of
a deliberate indifference claim.
The Court therefore OVERRULES Plaintiff's objection concerning Defendant Keeling,
ACCEPTS AND ADOPTS the report and recommendation, and DISMISSES all the claims
against Defendant Keeling and DISMISSES him from this case.
As to Defendant Birkett, the magistrate judge discussed how Plaintiff's claim again
failed at the subjective prong of a deliberate indifference claim. (R&R at 15-16.) The
magistrate judge also found that qualified immunity would shield Defendant Birkett from
suit. (Id. at 17.) The magistrate judge reasoned that Defendant Birkett "did not subjectively
disregard a substantial risk of harm" to Plaintiff "by failing to transport [him] to his
appointment [in St. Louis.]" (Id. at 15.) The magistrate judge reviewed letters and Michigan
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Department of Corrections policy directives. (Id. at 15-16.) Defendant Birkett's letter to
Plaintiff's sister shows that Birkett wrote to Plaintiff's sister and informed her why Plaintiff
did not receive approval to attend the St. Louis appointment. (Id. at 15.) The policy
directives show that the MDOC does allow for outside provider appointments, but only in
very limited circumstances and with prior approval, which Plaintiff did not seek. (Id.) The
magistrate judge pointed out that Defendant Birkett, in denying Plaintiff's request, "simply
complied with MDOC [p]olicy." (Id. at 16.) The magistrate judge also pointed out that
MDOC policy endows the Bureau of Health Services with the MDOC's health services
program and that it is supposed to coordinate all health care services. (Id. at 16-17.)
Given that discussion, the magistrate judge reasoned that the health care staff, not
the warden, Defendant Birkett, was responsible for making an appointment for Plaintiff.
(R&R at 17.)
Plaintiff objects to the report with respect to Defendant Birkett because he claims that
Defendant Birkett had knowledge that Plaintiff had an outside appointment and that he
needed an appointment with an ophthalmologist, yet did nothing about it. (Pl.'s Objections
at 5.)
The Court OVERRULES Plaintiff's objection with respect to Defendant Birkett. Plaintiff
has not shown that Defendant Birkett subjectively disregarded a substantial risk of harm.
While Plaintiff states that Defendant Birkett knew of the eye implant issues, Plaintiff does
not address, what the magistrate judge points out, the warden's inability to grant the
requested relief and the warden's adherence to MDOC policy for the safety of prisoners
and the public. The magistrate judge pointed out that the Bureau of Health Services was
responsible for health services, not the warden.
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The Court agrees with the magistrate judge and therefore ACCEPTS and ADOPTS
his report and recommendation. Plaintiff has not satisfied the subjective element of a
deliberate indifference claim. Defendant Birkett's actions do not rise to a constitutional
violation. The Court therefore GRANTS Defendant Birkett's motion for summary judgment
and dismisses him from this case.
The magistrate judge recommended that the Court deny Defendant Kearney's motion
to dismiss, relating to Plaintiff's allegations of Defendant Kearney's alleged deliberate
indifference to Plaintiff's broken foot. (R&R at 20.) Neither party has objected to this
recommendation. The Court therefore ACCEPTS and ADOPTS it and DENIES Defendant
Kearney's motion to dismiss.
Last, the magistrate judge recommended finding that Plaintiff failed to state a claim
of deliberate indifference concerning Plaintiff's athlete's foot allegations. (R&R at 20-22.)
The magistrate judge reasoned that athlete's foot does not rise to an objective "sufficiently
grave and serious condition" needed for a deliberate indifference claim. (Id. at 21.) The
magistrate judge also reasoned that Defendants Wheeling and Kearney treated the
athlete's foot with creams and Plaintiff saw results, a clearing of the rash. Given that
Defendants treated the athlete's foot, the magistrate judge reasoned that Plaintiff could not
satisfy the subjective component of a deliberate indifference claim.
The Court has reviewed Plaintiff's objections.

Plaintiff primarily disputes the

effectiveness of treatment. But, as the magistrate judge reviewed, a plaintiff does not get
to pick and choose which type of treatment he receives if he is receiving some treatment.
Here, Plaintiff received treatment and the treatment worked to an extent, even though the
athlete's foot came back after a short while.
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The Court finds that Plaintiff cannot sustain a claim of deliberate indifference based
on his athlete's foot condition. The Court finds that the magistrate judge fully addressed the
issue in his report and recommendation. The Court therefore OVERRULES Plaintiff's
objections and ACCEPTS and ADOPTS the report and recommendation regarding the
athlete's food condition.
Being fully advised in the premises, having read the pleadings, and for the reasons
set forth above, the Court hereby orders as follows: the Court ACCEPTS AND ADOPTS
the magistrate judge's report and recommendation.

The Court therefore GRANTS

Keeling's motion to dismiss (dkt. 37), DENIES IN PART AND GRANTS IN PART Kearney's
motion to dismiss (dkt. 16), and GRANTS Birkett's motion for summary judgment (dkt. 25).
The sole claim going forward is the deliberate indifference claim against Kearney with
regards to the broken foot.
So ordered.
s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: January 16, 2014

I hereby certify that a copy of the foregoing document was served upon counsel of record
on January 16, 2014, by electronic and/or ordinary mail.
s/Johnetta M. Curry-Williams
Case Manager
Acting in the Absence of Carol Hemeyer

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