Kensu v. Buskirk et al
ORDER granting 80 Motion for summary judgment. Signed by District Judge Victoria A. Roberts. (DPer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 13-10279
Hon. Victoria A. Roberts
JOSHUA B. BUSKIRK, et al.,
ORDER GRANTING DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT (Doc. #80)
Temujin Kensu (“Kensu”) is a prisoner in the custody of the Michigan Department
of Corrections (“MDOC”). Only one claim is before the Court: deliberate indifference to
serious medical needs in violation of 42 U.S.C. §1983. Kensu says that for more than
twenty years, he has experienced a lack of appropriate care for joint and spinal injuries.
Kensu has another suit pending. The Rapelje case alleges: (1) an Eighth
Amendment violation for deliberate indifference with respect to his wheat and dairy
intolerance; and (2) retaliation under the First Amendment. The two lawsuits involve
some of the same defendants. In an earlier order, the Court declined to consolidate the
two cases because they do not involve a common question of law or fact, and because
of the risk of prejudice to Defendants. Dkt. No. 144.
The matter is before the Court on a Motion for Summary Judgment filed by
defendants’ Howard Tyree, P.A., Jeffrey Bomber, D.O., Ramesh Kilaru M.D., and
Joshua Buskirk, P.A.
The Court GRANTS their Motion.
This lawsuit involves events which occurred while Kensu was confined at
Saginaw Correctional Facility and the Thumb Correctional Facility. Kensu currently
resides at the Oaks Correctional Facility. Kensu says he was denied medical care for
spinal and joint injuries, disease, inflammation, and degeneration. Kensu says
Defendants’ inaction caused additional injury leading to permanent damage.
Defendant Howard Tyree, P.A., (“Tyree”) worked for Correctional Medical
Services, Inc., (“CMS”) for approximately five years before the CMS contract with the
Michigan Department of Corrections (“MDOC”) ended. Affidavit of Howard Tyree, at 2.
In his capacity as a doctor, he treated Kensu between September 2005 and August
2008. Id. Kensu asked for a surgery referral during an appointment on October 12,
2005; Tyree assessed his activities of daily living (“ADL”) and advised Kensu that
surgery was not medically necessary. Id. Tyree informed Kensu that he could pay for
speciality care himself. Id. On January 18, 2007, Tyree had a discussion with Kensu.
Id. at 3. Afterwards, Tyree typed ten pages of notes with twenty-two different points
addressing Kensu’s complaints about his back, knees, ankles, and shoulders, among
Tyree examined Kensu’s shoulder again on May 4, 2007 because Kensu said it
was getting worse. Id. Although Kensu reported discomfort, Tyree concluded he still
could engage in ADLs. Id. Tyree discussed whether an MRI should be done, but it was
not approved because Kensu was physically active. Id. On January 4, 2008, Kensu
wanted to revisit previously addressed medical issues for his joint and back problems,
but since he did not report new symptoms, Tyree informed him that those issues had
already been addressed. Id. at 3-4. Tyree says his last involvement with Kensu was on
August 18, 2008, when he approved a nurse’s request to provide Kensu with a
breathing treatment. Id. at 4.
Joshua Buskirk, P.A., (“Buskirk”) has been a medical provider at Saginaw
Correctional Facility since 2009. Affidavit of Joshua Buskirk, at 2. Buskirk discontinued
Kensu’s order for supplemental Vitamin D because Kensu refused to take a lab test to
determine his Vitamin D level. Id. at 5. Buskirk saw Kensu regarding back and joint
problems three times; during each visit, Buskirk noted that these were chronic
complaints, there were no new symptoms and the issues had been addressed in a way
that Buskirk determined was appropriate. Id. at 6.
Jeffrey Bomber, D.O., (“Bomber”) was a Regional Medical Director for the region
that includes the Saginaw Correctional Facility. Affidavit of Jeffrey Bomber, at 2.
Bomber saw Kensu on April 5, 2011 along with Buskirk. Id. According to Buskirk,
Kensu “refused to cooperate” with lab testing and did not show up for scheduled
appointments. Affidavit of Joshua Buskirk, at 3. Kensu’s shoulder and back pain were
also discussed. Affidavit of Jeffrey Bomber, at 2. Bomber recommended a fourteen
day prednisone treatment to address complaints of nasal congestion and “inflammatory
conditions.” Id. Bomber says this visit was the only time he heard that Kensu had joint
and back issues; Bomber had no other involvement with these claims by Kensu. Id. at
Ramesh Kilaru M.D. (“Kilaru”) has been a medical provider at Thumb
Correctional Facility since 2009. Affidavit of Ramesh Kilaru, at 2. He first treated Kensu
on March 28, 2012 and he saw him multiple times; his medical treatment of him ceased
in June 2014 when Kensu transferred to another location. Id. at 2 and 5. On May 8,
2012, Kilaru saw Kensu for “mild” popping of the knees. Kensu requested medications
which Kilaru advised were not medically necessary. Id. at 2. Kensu requested ankle
and knee braces as well as x-rays; Kilaru ordered x-rays but concluded braces were not
medically necessary after consulting with Dr. Rodgers at Corizon. Id. at 3.
On November 13, 2012, Kensu was treated for a new right-knee acute sports
injury. Id. Kensu had crutches and an ACE wrap; Kilaru ordered rest, ice, compression
and elevation. Id. Kilaru said it was likely a hamstring injury but it could also be a
meniscal tear. Id. During a follow-up appointment two weeks later, Kensu said his knee
was not improving. Id. Kilaru requested an orthopedic consultation; it was not
approved. Id. Ricky Coleman, D.O., concluded the injury could be managed
conservatively since there was no locking of the joint; Kilaru concurred in that
assessment. Id. Kilaru saw Kensu and requested a knee brace for him on December
27, 2012. Id. at 3-4. Kilaru evaluated Kensu’s knee on five other occasions; he
decided that an MRI was not necessary, that Kensu should perform extensor and
stretching exercises, and see a physical therapist to develop a home exercise program.
Id. at 4-5.
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
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.
Statute of Limitations
Defendants’ say all claims against Tyree are barred by the statute of limitations.
The Court agrees.
Claims brought under 42 U.S.C. §1983 have a three year statute of limitations.
Surles v. Andison, 678 F.3d 452, 455 (6th Cir. 2012). For claims subject to the Prison
Litigation Reform Act of 1995, the statute of limitations is tolled while the plaintiff
exhausts his required administrative remedies. 42 U.S.C.A. § 1997e(a).
Kensu filed his original complaint on January 22, 2013. Tyree last treated Kensu
in August, 2008. Defendants’ say Plaintiffs’ claims can only reach beyond the three
year statute of limitations to the extent it was tolled while Kensu exhausted his
Kensu says Tyree was involved in denying him medical care even when he was
not personally seeing Kensu. Kensu filed a grievance against Tyree on June 8, 2009
and August 21, 2009.
According to Defendants, the last day Tyree provided treatment was August 18,
2008 and Tyree’s last day of work was March 31, 2009.
Kensu fails to establish genuine issues of fact with respect to his claim against
Tyree. Even assuming Tyree was involved in Kensu’s medical care after August 18,
2008, Tyree could not have been involved after March 31, 2009. Additionally, even if
there were decisions that Tyree was involved in, claims against him would still be
barred. Unless an extension is approved, the grievance process is completed within
120 days. MDOC Policy Directive, 03.02.130. If an extension is approved, an
additional 15 days is possible. Id. Thus, Kensu can only seek relief for events that
occurred on or after August 25, 2009. There is none involving Tyree.
Tyree is DISMISSED.
42 U.S.C. §1983
To prevail on a 42 U.S.C. §1983 claim, Kensu must demonstrate there is a
genuine issue of material fact on two elements: (1) he was deprived of a right secured
by the Constitution or laws of the United States; and (2) the deprivation was caused by
someone acting under color of state law. Miller v. Calhoun County, 408 F.3d 803, 812
(6th Cir. 2005).
Kensu asserts an Eighth Amendment violation; he says Defendants were
deliberately indifferent and did not appropriately treat his joint and spinal injuries. Kensu
says this has gone on for over twenty years.
There is no dispute that Defendants acted under color of state law during the
relevant time period. The question is whether they deprived Kensu of a right secured by
federal law. Kensu’s allegations against Defendants fail to allege a constitutional
violation; he cannot show Defendants’ actions amounted to cruel and unusual
“The Eighth 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). The “deliberate indifference” standard applies to a prisoner’s challenge to
medical treatment. Wilson v. Seiter, 501 U.S. 294, 303 (1991). The Eighth Amendment
imposes a duty on prison officials to ensure inmates receive “adequate food, clothing,
shelter, and medical care” as well as reasonable measures to guarantee safety. Farmer
v. Brennan, 511 U.S. 825, 832 (1994).
A deliberate indifference claim under the Eighth Amendment has both objective
and subjective components. Farmer v. Brennan, 511 U.S. at 834. The objective
component requires the existence of a sufficiently serious medical need, such as being
incarcerated under conditions that pose a substantial risk of serious harm. Id. “A
serious medical need 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.’” Harrison v. Ash, 539 F.3d 510, 518 (6th Cir. 2008)
In his response, Kensu says he had serious medical needs and references his
First Amended Complaint (“FAC”). Kensu claims he had a shoulder injury which
needed medical attention in 2005 but Tyree “falsely noted” the injury did not affect his
activities of daily life and decided a surgery referral was not medically necessary. FAC
¶ 98. Kensu also says that after experiencing extreme pain in 2009, he was prevented
from getting shoulder surgery; Kensu says he was told MDOC Chief Medical Officer Dr.
Jeffrey Stieve cancelled his care. FAC ¶¶101-04.
Kensu says Panjak Malik (“Malik”) informed him that “MDOC Chief Medical
Officer Dr. Jeffrey Stieve has ordered cancellations of your care” and that Stieve
“threatened her not to order anything for [Kensu] and not to put anything in writing; to
just ‘call on the phone.’” FAC ¶104. Malik also showed Kensu the cancellation order
and told him “Dr. Stieve is still directing your care. I don’t know why; it is obvious you
need shoulder surgery and it was all approved. He cancelled it. I think maybe he [does]
not like you for some reason.” FAC ¶106.
Defendants dispute whether Kensu’s shoulder is a serious injury. In their reply
brief, they say Kensu refused surgery for it in 2004 and that he was able to engage in all
of his ADLs. Defendants admit that Kensu’s November 2012 right knee injury was an
acute injury requiring treatment.
Kensu meets the required objective component of an Eighth Amendment claim
for deliberate indifference.
Kensu fails to satisfy the subjective component of his claim.
The subjective component requires a showing that the defendant had “a
sufficiently culpable state of mind. . .” Blackmore v. Kalamazoo Cnty., 390 F.3d 890,
895 (6th Cir. 2004). Deliberate indifference requires more than “mere negligence” but
can be satisfied “...by something less than acts or omissions for the very purpose of
causing harm or with knowledge that harm will result.” Farmer v. Brennan, 511 U.S. at
835. A prison official cannot be liable for denying an inmate humane conditions of
confinement “...unless the official knows of and disregards an excessive risk to inmate
health or safety; the 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 837
Defendants’ say several medical providers evaluated and treated Kensu for his
“chronic complaints” over the years and reached similar conclusions. Defendants
maintain that Kensu received appropriate care and follow up for his right knee injury.
Defendants reference Kensu’s medical records and affidavits as support for their
argument that they responded to Kensu’s medical needs in an appropriate manner.
Kensu mentions several instances where he was denied care. He says Dr.
Bomber examined him and found he needed care for his back but this care was not
provided. FAC ¶ 134a. Kensu says he was denied follow up care after receiving
medication that worked well for an “inflammatory process” and ear condition. FAC ¶
134a, n.14. He filed a grievance after Defendant Kilaru refused to listen to his medical
concerns or review medical documentation; Kilaru said “I have been told all about you”
and refused to properly provide care. FAC ¶ 176.
None of the examples provided by Kensu shows Defendants’ disregarded an
excessive risk to his health or safety. He was seen regularly by medical staff. Although
he disagrees with some of the treatment he received and decisions that were made
regarding his health, none of his allegations rise to the level of “deliberate indifference.”
Estelle v. Gamble, 429 U.S. 97, 106 (1976).
Based on the record before the Court, a juror could not reasonably find that
Buskirk knew of and disregarded an excessive risk to Kensu’s health or safety. Buskirk
saw Kensu regularly and determined that there was no new symptoms. He concurred
with previous doctors. Similarly, Bomber had very limited contact with Kensu; he
discussed Kensu’s back and shoulder pain with Buskirk and prescribed what they felt
were appropriate medications.
Kilaru had extensive interaction with Kensu, and the record reflects that various
medical treatments were considered and that multiple doctors were involved in
determining the right course of treatment. There is nothing in the record to reflect that
any of the doctors knew of an excessive risk to Kensu’s health and disregarded it.
A difference of opinion regarding treatment or need for surgery is insufficient to
state a claim under the Eighth Amendment. Chapman v. Parke, 1991 WL 203080, at *2
(6th Cir. Oct. 4, 1991).
Defendants are entitled to summary judgment on Count I.
In his First Amended Complaint, Kensu requested injunctive relief to secure
access to medical care and declaratory judgment saying his Eighth Amendment rights
were violated. Defendants say these claims are moot because Kensu transferred to a
A prisoner's claim for declaratory and injunctive relief against certain prison
officials becomes moot when the prisoner is transferred from the prison of which he
complained to a different facility. Henderson v. Martin, 73 F. App'x 115, 117 (6th Cir.
2003). To the extent that Henderson asks for injunctive relief against officials at
Saginaw Correctional Facility and Thumb Correctional Facility, his claim is moot.
Even if Kensu’s request for an injunction is not moot, it would still be
unwarranted. Kensu does not seek injunctive relief through a motion for a temporary
restraining order or a preliminary injunction. Kensu’s request is for a remedy to be
determined after liability has been established.
When reviewing a request for injunctive relief, the court balances: (1) whether the
person requesting relief has shown a substantial likelihood or probability of success on
the merits; (2) whether irreparable injury would be suffered without the injunction; (3) if
the preliminary injunction will cause substantial harm to others; and (4) whether the
public interest would be served by issuance of the injunction. Tumblebus Inc. v.
Cranmer, 399 F.3d 754, 760 (6th Cir. 2005). The plaintiff bears the burden to persuade
the court that the factors weigh in favor of granting a preliminary injunction. Granny
Goose Foods, Inc. v. Brotherhood of Teamsters and Auto Truck Drivers Local No. 70 of
Alameda County, 415 U.S. 432, 441 (1974).
Neither party addresses these four factors. Kensu’s request for injunctive relief is
Defendants’ Motion for Summary Judgment is GRANTED. Defendants’ Howard
Tyree, P.A., Jeffrey Bomber, D.O., Ramesh Kilaru M.D., and Joshua Buskirk, P.A. are
IT IS ORDERED.
S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: September 2, 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 2, 2015.
S/Carol A. Pinegar
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