Moore v. Warren et al

Filing 27

OPINION AND ORDER granting in part and denying in part 8 Motion for Summary Judgment; adopting 21 Report and Recommendation. Signed by District Judge Patrick J. Duggan. (MOre)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SHALECSHA MOORE,
Plaintiff,

Case No. 13-cv-11831

v.

Honorable Patrick J. Duggan

MILLICENT WARREN, JODI
DeANGELO, DR. PEI, R.N. OZOR,
and SUBRINA AIKENS,

Magistrate Judge David R. Grand

Defendants.
______________________________/
OPINION AND ORDER (1) ADOPTING REPORT AND
RECOMMENDATION AND (2) GRANTING IN PART AND DENYING IN
PART THE MDOC DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT
On April 23, 2013, Plaintiff Shalecsha Moore, a state prisoner in the custody
of the Michigan Department of Corrections (“MDOC”), instituted this pro se civil
rights action pursuant to 28 U.S.C. § 1983 alleging a claim of deliberate
indifference to her serious medical needs in violation of the Eighth Amendment to
the United States Constitution. (ECF No. 1.) At all times relevant to the
allegations contained in Plaintiff’s Complaint, Plaintiff was incarcerated at the
Women’s Huron Valley Correctional Facility (“WHV”) in Ypsilanti, Michigan.
As pertinent to the matter presently before the Court, Plaintiff’s Complaint names

four MDOC employees as defendants (the “MDOC Defendants”):1 Warden
Millicent Warren, Deputy Warden Jodi DeAngelo, Nurse Catherine Ozor, and
Nurse Subrina Aikens.
On June 28, 2013, the MDOC Defendants filed a motion for summary
judgment pursuant to Federal Rule of Civil Procedure 56. (ECF No. 8.) Soon
thereafter, this Court referred the lawsuit to Magistrate Judge Grand for all pretrial
matters, proceedings, including a hearing and determination of all non-dispositive
matters pursuant to 28 U.S.C. § 636(b)(1)(A) and/or a report and recommendation
on all dispositive matters pursuant to 28 U.S.C. § 636(b)(1)(B), (ECF No. 10).
After obtaining an extension of time, Plaintiff responded to the MDOC
Defendants’ Motion on August 21, 2013. (ECF No. 16.) No reply brief was filed.
On October 9, 2013, Magistrate Judge Grand filed a Report and
Recommendation (“R&R”) recommending that this Court grant the MDOC
Defendants’ Motion with respect to Defendants Warren, Ozor, and Aiken but deny
the Motion without prejudice as to Defendant DeAngelo. (R&R 20, ECF No. 21.)
At the conclusion of the R&R, Magistrate Judge Grand informs the parties that
they may file objections to the R&R. (Id. at 20-21.) He further advises that the
“[f]ailure to file specific objections constitutes a waiver of any further right of

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Plaintiff also named Dr. Pei, an employee of Prison Health Services, as a
defendant. Dr. Pei is not a party to the motion pending before this Court.
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appeal.” (Id. (citations omitted)). Defendant DeAngelo filed a timely objection on
October 23, 2013. (ECF No. 24.)
Standard of Review
A district judge must review de novo the parts of an R&R to which a party
objects. See Fed. R. Civ. P. 72(b); Thomas v. Halter, 131 F. Supp. 2d 942, 944
(E.D. Mich. 2001). However, a court “is not required to articulate all the reasons it
rejects a party’s objections.” Id. Further, overly general objections do not satisfy
the objection requirement. Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995).
“The objection must be clear enough to enable the district court to discern those
issues that are dispositive and contentious.” Id. “[O]bjections disput[ing] the
correctness of the magistrate’s recommendation but fail[ing] to specify the findings
. . . believed in error” are too general. Id.
Discussion
The sole objection to the R&R is that Magistrate Judge Grand erred in
permitting Plaintiff to amend her Eighth Amendment claim against Defendant
DeAngelo. This objection rests on two grounds. First, Plaintiff did not request
leave to amend. Second, Defendant DeAngelo contends that “[t]he main flaw in
the [R&R] is that the magistrate judge . . . used a dismissal analysis rather than a
summary judgment analysis . . . .” (Def.’s Obj. 3, ECF No. 24.) This second
argument rests on the notion that in order to defeat summary judgment, the non3

moving party must adduce evidence to support the claim whereas here, Plaintiff
offered only allegation. In short, Defendant DeAngelo takes issue with Magistrate
Judge Grand’s recommendation that Plaintiff be allowed to amend her complaint to
incorporate factual allegations made in response to the MDOC Defendants’ Motion
for Summary Judgment.
In the MDOC Defendants’s Motion for Summary Judgment, they argued
that Plaintiff’s claim against Defendant DeAngelo should be dismissed because
Plaintiff failed to allege the requisite level of personal involvement to sustain a
viable § 1983 claim. (MDOC Defs.’ Br. 9-10, ECF No. 8.) Although Plaintiff’s
Complaint did not make allegations that personally implicated Defendant
DeAngelo in the delayed receipt of medical care, Magistrate Judge Grand
explained that Plaintiff raised new allegations in responding to the summary
judgment motion that, if true, would create a question of fact regarding Defendant
DeAngelo’s personal involvement. (R&R 12, ECF No. 21 (citing Pl.’s Resp. 10,
ECF No. 16).) Although Magistrate Judge Grand acknowledged that the additional
allegations “are somewhat suspect,” he determined that the Court should deny the
MDOC Defendants’ Motion with respect to Defendant DeAngelo and sua sponte
grant Plaintiff the opportunity to amend for two interrelated reasons. (Id.)
First, Magistrate Judge Grand explained that he deemed the leave to file an
amended complaint proper in light of Plaintiff’s pro se status and the “admonition”
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embodied in Federal Rule of Civil Procedure 15(a)(2) permitting courts to grant
leave “freely . . . when justice so requires.” (Id. at n.6.) The Court tends to agree
with this conclusion as the MDOC Defendants filed their Motion for Summary
Judgment two months after the Complaint was filed and before discovery
commenced.
Second, Magistrate Judge Grand acknowledged that “unsupported
allegations made in a response brief might not generally be sufficient to overcome
an otherwise properly-supported summary judgment motion, see Garvey v.
Montgomery, 128 F. App’x 453, 462 n.6 (6th Cir. 2005)[(citation omitted)],” he
further explained that no discovery occurred prior to the filing of the Motion for
Summary Judgment.2 (R&R 13-14.) Because Plaintiff’s Response indicated that
her allegations would be supported by a daily log book reflecting when Defendant
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In Garvey, a plaintiff sought to rely on an unsupported statement as
evidence in defeating summary judgment. In responding to the defendants’
summary judgment motion, plaintiff indicated that “Plaintiffs attempted to have a
computer expert inspect the system on which the memorandum was created to
establish its creation date, but counsel for defendants have represented . . . that Mr.
Hennebert threw the computer away.” Garvey v. Montgomery, 128 F. App’x 453,
462 (6th Cir. 2005). On appeal, the Sixth Circuit explained that “the sole support”
offered for the “allegation that the computer in question was destroyed” was the
proponent’s own self-serving statement (a statement that was not supported by any
record evidence). Id. Although the same is true here (in that there is no record
evidence), unlike Garvey, discovery had not commenced prior to the filing of the
instant summary judgment motion. Because the MDOC Defendants are
presumably in custody of the daily log books in question, Plaintiff’s allegation is
not necessarily an ungrounded factual assertion that should be disregarded by this
Court in assessing the propriety of dismissing Plaintiff’s cause of action with
prejudice.
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DeAngelo made her rounds and witnessed Plaintiff writhing in pain, the Court
concludes that Magistrate Judge Grand pursued the proper legal course in his
R&R. Although the law does not require the MDOC Defendants to file a reply
brief, they possess the daily log book to which the Plaintiff refers and could
therefore have easily disposed of Plaintiff’s allegations regarding Defendant
DeAngelo’s personal involvement by presenting the evidence to this Court.
Conclusion
For the reasons set forth above, the Court adopts Magistrate Judge Grand’s
October 9, 2013 Report and Recommendation. The Court concurs in the
conclusion that Defendants Warren, Ozor, and Aikens should be dismissed from
this action for the reasons stated by Magistrate Judge Grand. The Court also
concurs with Magistrate Judge Grand’s recommendation that Plaintiff be permitted
to amend her complaint with respect to her allegations against Defendant
DeAngelo. The Court is therefore denying summary judgment to Defendant
DeAngelo.
Accordingly,
IT IS ORDERED that Magistrate Judge Grand’s October 9, 2013 Report
and Recommendation is ADOPTED;

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IT IS FURTHER ORDERED that the MDOC Defendants’ Motion for
Summary Judgment (ECF No. 8) is GRANTED IN PART and Defendants
Warren, Ozor, and Aikens are DISMISSED AS DEFENDANTS;
IT IS FURTHER ORDERED that the MDOC Defendants’ Motion for
Summary Judgment (ECF No. 8) is DENIED IN PART as to Defendant
DeAngelo.

Date: December 24, 2013
s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE
Copies to:
Shalecsha Moore, # 811643
Huron Valley Complex - Womens
3201 Bemis Road
Ypsilanti, MI 48197
Kevin R. Himebaugh, A.A.G.
Kimberley A. Koester, Esq.
Ronald W. Chapman, Esq.

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