Cummings v. Heyns et al

Filing 191

ORDER granting in part and denying in part 127 Motion to Dismiss; granting in part and denying in part 163 Motion for Summary Judgment; adopting 185 Report and Recommendation. Signed by District Judge Arthur J. Tarnow. (MLan)

Case 2:14-cv-10957-AJT-SDD ECF No. 191 filed 09/12/18

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
WALTER CUMMINGS BEY,
Case No. 14-10957
Plaintiff,
SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW

v.
PAUL KLEE, ET AL,

U.S. MAGISTRATE JUDGE
STEPHANIE DAWKINS DAVIS

Defendants.
/
ORDER ADOPTING REPORT AND RECOMMENDATION [185]
Plaintiff Walter Cummings Bey, a pro se prisoner, has brought claims
pursuant to 42 U.S.C. § 1983 against officials of the Michigan Department of
Corrections (hereinafter “MDOC”) and Roselyn Jindal, P.A., an employee of a
private contractor. He alleges violations of his 8th and 14th Amendment rights,
violations of the Americans with Disability Act, and violations of Michigan
medical malpractice law, all stemming from his fall on September 26, 2013 while
in MDOC custody. On August 19, 2018, the Magistrate Judge issued a Report and
Recommendation (R&R) [Dkt. #185]. Neither Plaintiff nor Defendant objected to
the R&R, and so this Court’s role can be minimal. Fed. R. Civ. P. 72(b).
The R&R advises the Court to Grant the MDOC Defendant’s Motion for
Summary Judgment [163] on all of Plaintiff’s retaliation and conspiracy claims
against any defendant, on Plaintiff’s excessive force claims against defendants
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Case 2:14-cv-10957-AJT-SDD ECF No. 191 filed 09/12/18

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Klee and Ellenwood, and on Plaintiff’s deliberate indifference claim against Klee.
The R&R recommends denying the MDOC defendant’s Motion for Summary
Judgment [163] as to Plaintiff’s claim against defendant Klee for lack of adequate
accommodations under the ADA, as to Plaintiff’s use of excessive force claim
against all MDOC defendants except Klee and Ellenwood, and as to Plaintiff’s
deliberate indifference claim against all defendants except Klee. The R&R
recommends that none of the MDOC defendants be entitled to qualified immunity
on Plaintiff’s deliberate indifference and excessive force claims.
As to defendant Jindal, the R&R recommends granting her Motion to
Dismiss [127] as to the Plaintiff’s claims against her under the ADA and under
Michigan medical malpractice law, but denying her Motion to Dismiss as to the
Plaintiff’s deliberate indifference claims for lack of proper medical
accommodations and for lack of proper medical care.
The Court having reviewed the record, the Report and Recommendation
[185] is hereby ADOPTED and entered as the findings and conclusions of the
Court.
SO ORDERED.

Dated: September 12, 2018

s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge

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