Kensu v. Buskirk et al

Filing 116

ORDER Denying 90 Defendants' Motion for Summary Judgment on the Pleadings and for Summary Judgment. Signed by District Judge Victoria A. Roberts. (LVer)

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

Case No. 13-10279
Hon. Victoria A. Roberts

JOSHUA B. BUSKIRK, et al.,
Defendants.
/
ORDER DENYING DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS
AND FOR SUMMARY JUDGMENT [DKT #90]
I.

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

of Corrections. There is only one count in Kensu's First Amended Complaint and
Defendants seek to dismiss it: 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. In his response to
Defendants’ motion, Kensu says he was denied shoulder surgery in 2009.
Kensu filed another suit that the Court recently dismissed. Kensu v. Rapelje, et
al, No. 12-11877. That suit and this one involve some of the same defendants.
Defendants' Dr. Jeffrey C. Stieve, Susan McCauley, Mary Zamora, Charles
Turner, Dr. William Borgerding, Warden Lloyd Rapelje, Russell Vittitow, and Jeannie
Stephenson Motion for Judgment on the Pleadings and for Summary Judgment is

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DENIED.
II.

BACKGROUND
Kensu says he was denied medical care for spinal and joint injuries and other

medical conditions while confined at Saginaw Correctional Facility and the Thumb
Correctional Facility. Kensu says Defendants' inaction caused additional harm leading
to permanent damage. Kensu says many Defendants were aware that he needed
shoulder surgery but it was cancelled without explanation. Kensu says that because of
his shoulder injury, his hand and arm were extremely painful to move. In his First
Amended Complaint, Kensu also says he suffered a knee injury that he describes as a
possible ligament tear.
The First Amended Complaint lumps general allegations of denial of care against
many Defendants. Often, Kensu fails to allege dates; he also often fails to describe the
particular allegedly illegal actions of particular defendants.
III.

DISCUSSION
Defendants attached deposition testimony to their motion, but did not reference

any particular page or paragraph for the Court to consider. Nor do they provide
affidavits or medical records in support of their motion. Instead, they direct the Court to
the Motion for Summary Judgment filed by Defendants Bomber, Kilaru, Tyree, and
Buskirk. Dkt. No. 80. Defendants do not describe how the other motion or its
attachments relates to them. In its discretion, the Court declines to consider these
materials; it considers only the First Amended Complaint and reviews the Motion only
under Fed. R. Civ. P. 12 (c).

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A.

Judgment on the Pleadings

The Court applies essentially the same standard of review for judgment on the
pleadings as for a motion to dismiss under Federal Rule of Civil Procedure 12 (b)(6).
Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010). “For purposes of a
motion for judgment on the pleadings, all well-pleaded material allegations of the
pleadings of the opposing party must be taken as true, and the motion may be granted
only if the moving party is nevertheless clearly entitled to judgment.” Poplar Creek Dev.
Co. v. Chesapeake Appalachia, L.L.C., 636 F.3d 235, 240 (6th Cir.2011) (citation
omitted).
To survive a Rule 12(c) motion, a plaintiff must provide grounds of entitlement to
relief that are more than “labels and conclusions” and “factual allegations must be
enough to raise a right of relief above the speculative level. . .” Sensations, Inc. v. City
of Grand Rapids, 526 F.3d 291, 295 (6th Cir.2008) citing Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007).
B.

Count 1: 42 U.S.C. §1983

To prevail on his 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).
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 asserts an Eighth Amendment violation; he says Defendants were
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deliberately indifferent to his medical needs and did not appropriately treat his joint and
spinal injuries. A review of the First Amended Complaint reveals genuine issues of
material fact do exist concerning the alleged deprivation of this constitutional right.
“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). Prison officials must provide humane conditions of confinement; officials must
ensure that inmates receive “adequate food, clothing, shelter, and medical care” and
take reasonable measures to guarantee the safety of inmates. Farmer v. Brennan, 511
U.S. 825, 832 (1994).
1.

Objective Prong

An Eighth Amendment deliberate indifference claim 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) (citation
omitted).
Kensu says he was cleared for shoulder surgery and Defendants cancelled it. As
a result, Kensu says he experienced great pain and that his condition worsened over
time.
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Defendants argue generally in their Motion that Kensu received care and that a
dispute regarding adequacy of treatment is not cognizable under the Eighth
Amendment.
Not every medical request made by a prisoner must be heeded. Westlake v.
Lucas, 537 F.2d 857, 860 (6th Cir.1976). However, a prisoner states a proper cause of
action when he alleges that reasonable requests for medical treatment for an obvious
need were denied and he was exposed to undue suffering or the threat of tangible
residual injury. Id. The Sixth Circuit distinguishes between cases where a complaint
alleges a complete denial of care and those cases where a prisoner received
inadequate treatment. Id. at 850, n. 5. ". . .[F]ederal courts are generally reluctant to
second guess medical judgments and to constitutionalize claims which sound in state
tort law." Id.
Taking Kensu's allegations as true, he has created an issue of fact as to whether
the denial of surgery meets the objective prong of his constitutional claim. Defendants
may be correct that Kensu received care and that Kensu merely disputes the decisions
made by Defendants; however, Defendants cannot succeed on a Motion for Judgment
on the Pleadings by making unsupported arguments that factually contradict the
Plaintiff. Under 12(c), the moving party concedes the accuracy of the factual allegations
of the nonmoving party. Sun Valley, Ltd. v. Galyan's Trading Co., LLC, No. 13-13641,
2014 WL 1030956, at *3 (E.D. Mich. Mar. 17, 2014).
Kensu alleges these Defendants denied him care by cancelling a surgery that
was medically necessary. The First Amended Complaint alleges other instances where
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Kensu says he was denied medical attention. A motion for judgment on the pleadings
can only be granted when no issue of material fact exists. Coyer v. HSBC Mortgage
Servs., Inc., 701 F.3d 1104, 1108 (6th Cir. 2012).
Kensu establishes an issue of fact regarding the objective prong of his
constitutional claim.
2.

Subjective Prong

Defendants also fail to show they are entitled to judgment as a matter of law on
the subjective component of Kensu’s 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.
While Kensu does group Defendants together and makes generalized allegations
regarding denial of care, he provides enough dates and detail, that, if true, create
factual disputes between the parties on the subjective prong of the Eighth Amendment
claim. Additionally, in his response, Kensu referenced specific paragraphs in the First
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Amended Complaint and Defendants fail to address them in their reply.
Defendants are not entitled to Judgment on the Pleadings on Count I.
3.

Defendant Panjak Malik

On June 12, 2015, the Court ordered Kensu to show cause why Defendant
Panjak Malik (“Malik”) should not be dismissed for failure to prosecute under E.D. Mich.
LR 41.2. Specifically, the Court required information regarding service. On June 26,
2015, Kensu submitted a satisfactory response, demonstrating that Malik was served
with a copy of the complaint. Dkt. No. 109. Malik was served on June 22, 2015. Her
answer was due July 13, 2015 but none has been filed.
Defendant Malik was not named in the motion before the Court. No clerk’s entry
of default has been requested. If Kensu fails to request default by September 18, 2015,
Defendant Malik will be dismissed for failure to prosecute.
IV.

CONCLUSION
Defendants’ Motion is DENIED. This case will proceed to trial on Count I against

Defendants Dr. Jeffrey C. Stieve, Susan McCauley, Mary Zamora, Charles Turner, Dr.
William Borgerding, Warden Lloyd Rapelje, Russell Vittitow, and Jeannie Stephenson.
IT IS ORDERED.
S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: September 11, 2015

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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 11, 2015.
s/Linda Vertriest
Deputy Clerk

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