Cummings v. Heyns et al
Filing
229
OPINION AND ORDER ADOPTING 226 Report and Recommendation, OVERRULING 227 Defendant's Objection, and DENYING 201 Defendant's Motion for Summary Judgment. Signed by District Judge Arthur J. Tarnow. (AChu)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
WALTER CUMMINGS,
Case No. 14-10957
Plaintiff,
SENIOR UNITED STATES DISTRICT
JUDGE ARTHUR J. TARNOW
v.
PAUL KLEE, ET AL.,
MAGISTRATE JUDGE STEPHANIE
DAWKINS DAVIS
Defendants.
/
OPINION AND ORDER ADOPTING THE REPORT AND RECOMMENDATION [226];
OVERRULING DEFENDANT’S OBJECTION [227]; AND DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [201]
Humpty Dumpty sat on a wall
Humpty Dumpty had a great fall.
All the King’s horses and all the king’s men
Couldn’t put humpty together again.
“Humpty Dumpty”1
Walter Cummings suffered many falls during his time at the Gus Harrison
Correctional Facility. Though he was unable to function without a wheelchair and
barrier-free housing, the prison medical providers believed that Mr. Cummings
1
THE OXFORD DICTIONARY OF NURSERY RHYMES, ed. Iona & Peter Opie, Oxford:
Oxford UP, 1997, pg. 213-15.
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would somehow be healed or put back together again by the exercise of staggering,
crawling, or scooting up and down the stairs of his facility. During this time, Mr.
Cummings was 67-years-old, 6-feet 7-inches tall, and weighed 275 pounds. (Dkt.
203, PageID 1948). While he was afforded a wheelchair for longer travel, Mr.
Cummings was deprived the use of a wheelchair for short distances. He was also
moved from a cell on the first floor to a cell on the second. Somehow this was to
make him whole.
After one great fall, prison guards allegedly told Mr. Cummings, “you should
be in Hollywood, because we looked at your fall and it looked almost real.” (Dkt.
82, pg. 9). The defendants surely would have been convinced that Mr. Cummings
needed a wheelchair if, after one of his falls, he shattered into pieces like poor Mr.
Dumpty. Though the defendants would have had the medical certainty so important
to them, this would have been too late for Mr. Cummings, for neither all the king’s
horses nor all the king’s men can put a man back together again once he is broken.
Seeking redress for the deprivation of his special accommodations, Mr.
Cummings has brought claims pursuant to 42 U.S.C. § 1983 against Defendant
Roselyn Jindal, P.A. — an employee of the private contractor Corizon — and
various other officials of the Michigan Department of Corrections (“MDOC”).
Before the Court is Defendant Jindal’s Motion for Summary Judgment [201]. All
pretrial matters, including this motion, had been referred [46] to Magistrate Judge
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Stephanie Dawkins Davis. Pursuant to 28 U.S.C. § 636(b)(1), the Magistrate Judge
held a hearing on the motion on May 16, 2019 and then issued a Report and
Recommendation (R&R) [226] on August 4, 2019.
The R&R advises the Court to deny Jindal’s Motion for Summary Judgment.
Defendant objected to the R&R on August 19, 2019 [227]. For the reasons stated
below, the Court will overrule that objection and follow the Magistrate Judge’s
recommendation to deny summary judgment.
FACTUAL BACKGROUND
The factual background is set forth in the R&R as follows.
At all times relevant to the claims in his Amended Complaint
Cummings was confined at the Gus Harrison Correctional Facility (ARF),
and Jindal was a physician’s assistant and medical provider at ARF. (Dkt.
201 – Exhibit B, Jindal Affidavit, at ¶ 1-2). Cummings’s claims in his
Amended Complaint arise out of two events that occurred on the same day:
his move to a wheelchair non-accessible unit after having been afforded
the accommodation of a barrier-free unit during a preceding period of
months and his medical treatment after a fall down the stairs on September
26, 2013. Cummings has used a wheelchair since about 2011 (“three plus
years” pre-dating the filing of his original complaint). (Dkt. 82, at ¶ 13,
Dkt. 1 at ¶ 13).
Neither party contests what is in the medical records attached to
Jindal’s motion and Cummings’ response; instead, they contest the
interpretation of the facts. The records show the following with regard to
the wheelchair accommodations. On August 8, 2012, Jindal ordered for
Cummings to receive an accommodation for wheelchair use for long
distance only with a stop date of August 8, 2013. (Dkt. 203 - Medical
Records, Pg ID 1945). Two weeks later, on August 22, 2012, Jindal added
a further accommodation through August 8, 2013 for an attendant to assist
Cummings with movement inside the prison. (Id. at Pg ID 1950). Despite
the August 2012 accommodations he was afforded, in the latter months of
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2012, Cummings filed kites complaining of falling while trying to put his
wheelchair in his non-accessible cell and requested to be moved to an
accessible cell. (Dkt. 205, Pg ID 2041-49). He variously reported severe
pain in his lower back extending to his legs and feet, headaches, chest pain,
chest bruising and pain in his right hand from falls in that occurred in
August and November 2012. On November 28, 2012, in response to
Cummings’ complaints about inaccessible housing, Jindal gave a verbal
order for a wheelchair accessible room. (Dkt. 203, Pg. ID 1959). On
November 29th, Jindal updated his special accommodations to include
barrier-free housing, a wheelchair accessible bottom bunk in the cell, and
wheelchair use not limited to distances. (Id. at Pg. ID 1963). These
accommodations were scheduled to end on August 8, 2013. (Id. at Pg ID
1963). However, on January 14, 2013, Jindal updated Cummings’ records
to reflect the following reduced special accommodations: bottom bunk
housing, a walker for short-distance use, and a wheelchair for longdistance use; she removed the accommodations for a barrier-free cell,
wheelchair-accessible housing and wheelchair use for all distances. (Id. at
Pg ID 1969). She noted that, during this visit, Cummings was able to
ambulate from his wheelchair to the examination table with a slow but
steady gait with some assistance – grasping surrounding objects such as a
door and bookshelf. (Id. at Pg ID 1967). She renewed the updated – i.e.
more limited – accommodations after seeing him on September 9, 2013 for
one year. (Id. at Pg ID 1975). During the September 9th visit, Jindal
encouraged Cummings to increase his exercise. (Id.).
A little over two weeks later, defendant nurse Ellenwood treated
Cummings after a fall down the stairs on September 26, 2013 which was
captured on videotape. (Dkt. 15, Exhibit 5). Cummings complained of pain
in his lower back and the back of his head. (Dkt. 203, at Pg ID 1976).
Ellenwood saw no signs of injury to his head or lower back. Ellenwood
noted that Cummings used a wheelchair for distances but that he was
moved to a unit without an elevator to encourage ambulation. After he had
been in healthcare for an hour, Cummings told her that he could not climb
the stairs back to his cell and asked for an elevator special accommodation.
Ellenwood notified Jindal of this request but Jindal declined to discuss it
with him. (Id.). Ellenwood gave Cummings ice or a cold compress for his
back. (Id. at Pg ID 1977). In the critical incident report, Ellenwood stated
that she notified Jindal that Cummings refused to get up off the gurney and
that Jindal said Cummings could “walk just fine when he wants to.” (Dkt.
205, Pg ID 2037).
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On September 27th and 30th, Cummings kited healthcare
complaining of back and leg pain. He was scheduled for a medical visit on
October 1st. (Dkt. 203, at Pg ID 1979-80). Cummings presented to
healthcare on October 1st with complaints of pain. He stated that Tylenol
did not help with the pain he experienced from having to crawl or scoot up
and down the stairs. (Id. at Pg ID 3). This medical record reflects that the
“MSP” instructed Ellenwood to let Cummings “rest a while” in healthcare
after the fall. (Dkt. 203, at Pg ID 1977). This record also reflects that the
“MP” was notified of Cummings complaint that he could not the climb the
stairs and request for the elevator accommodation. (Id.). Jindal identifies
herself as the individual who instructed Ellenwood to let Cummings rest
in healthcare (Dkt. 201, at p. 10) and as the individual who Ellenwood
notified of the issue regarding climbing stairs (Id. at p. 4). It appears, then,
that the MSP and MP noted in the records, at least this particular record, is
Jindal. On October 1, 2013, medical staff gave him a hot compress and
ACE wrap and referred him to Jindal for an assessment of his pain. The
nurse who treated him that day noted Cummings’ complaints of pain and
having to scoot on the stairs. She was unable to assess his gait but found
that he was able to scoot himself around in a wheelchair using his feet and
that he did not appear to be in distress. (Id. at Pg ID 1983-87). Cummings
kited healthcare again on October 6, 2013, that Cummings’
accommodation for a barrier-free cell was discontinued after it expired on
August 8, 2013, because his wheelchair accommodation was for distances
only. Kopka further indicated that Jindal is the only person who can
determine accommodations. (Id.).
On October 19, Cummings submitted a request for healthcare
because he fell again trying to get his wheelchair into his cell. (Dkt. 205,
Pg ID 2059). On October 26, 2013, Cummings complained that he hurt his
knees, hip, and lower back trying to use a shower that was inaccessible to
disabled inmates. (Dkt. 205, Pg ID 2063). Cummings also stated that
healthcare’s failure to accommodate his disabilities made it unsafe,
difficult, and painful to move in the prison. (Id.). The nurse responding to
the kite stated that the information had been forwarded to the housing unit
manager (“HUM”) and that Cummings was scheduled to see a nurse for an
evaluation of his pain. (Id. at Pg ID 2064). On October 30th, a nurse
reviewed Cummings’ complaints about having to crawl on the stairs and
having an inaccessible cell and shower. (Dkt. 203, at Pg ID 1998). The
nurse indicated that the nursing supervisor addressed the issue with the
“MP.” The MP stated that Cummings was able to walk up and down the
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stairs and that he had an accommodation for wheelchair use for distances
only. On November 2, 2013, Cummings kited healthcare again for pain
from crawling up and down the stairs. (Dkt. 205, at Pg ID 2065). The
responding nurse explained that if he could not walk on the stairs, he
should try scooting instead of crawling. (Id. at Pg ID 2066). She further
explained that Cummings could use the handrail to assist him in lowering
himself to a seated position on the stair and to use his upper body strength
to move along the stair treads. She said he would experience less
discomfort as his strength increased. (Id.).
On November 4, 2013, Jindal reviewed Cummings’ medical chart.
She noted that Cummings had been complaining of frequent falls or injury
due to living in a non-handicap cell. Jindal stated that they would discuss
the issue at the next “CCC” visit. (Dkt. 203, at Pg ID 2000). On November
30, 2013, Cummings sent a kite to healthcare complaining of pain in his
buttocks, wrist, right shoulder, lower back, hips and knees related to
scooting up and down the stairs. (Id. at Pg ID 2002). The next day, nonparty Nurse Velarde responded to the kite, commenting that Cummings
should continue to work on increasing his strength, increase the amount of
time he spends on his feet, and work on his balance and coordination.
Velarde stated that Cummings could do more to improve his function
himself than could be done by nursing or his medical provider. (Id.). On
December 7, 2013, he submitted another kite about falling while scooting
up and down the stairs, hurting himself. (Dkt. 205, Pg ID 2071). He was
scheduled for an appointment for evaluation of his injury and concerns.
(Id. at Pg ID 2072). Cummings saw Dr. Brady on December 9, 2013 for
issues including musculoskeletal/back/knee pain. Dr. Brady noted that
Cummings had an accommodation for a wheelchair for distances but
appeared to use the wheelchair all the time. (Id.). Dr. Brady stated that he
would discuss Cummings’ issues with staff more familiar with his care to
see if other accommodations were available. (Id. at Pg ID 2005). This is
the last medical record until his transfer to another prison a few weeks later
on January 2, 2014. (Dkt. 203, at Pg ID 2006). A physician’s assistant at
the new facility continued the special accommodation ordered by Jindal:
bottom bunk housing, a walker, and wheelchair for distance on January 31,
2014. (Id. at Pg ID 2014). On January 13, 2015, Cummings’
accommodations were changed to allow for “permanent” wheelchair use.
(Id. at Pg ID 2016). On April 10, 2015, Cummings received a special
accommodations order for a handicapped shower, a wheelchair pusher, and
barrier free/wheelchair accessible housing on the ground floor with no
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steps, in addition to the permanent wheelchair use. (Id. at Pg ID 2021,
2022).
In her affidavit attached to her motion for summary judgment, Jindal
recounts the involvement she had in Cummings’ medical care based on the
medical record beginning in August 2012 until his transfer to another
prison on January 21, 2014, as recounted above. (Dkt. 201-2, ¶¶ 3-22). She
avers that, in her medical judgment, it was important to encourage
Cummings to ambulate and improve his strength, rather than simply resign
himself to life in a wheelchair. (Id. at ¶ 25).
R&R 2-10 (footnotes omitted).
PROCEDURAL BACKGROUND
Plaintiff filed this suit pro se on March 4, 2014. [Dkt. # 1]. Roselyn Jindal,
P.A., was not served until October 4, 2017. She filed a Motion to Dismiss [127] on
November 30, 2017. Following its adoption of the Magistrate Judge’s August 19,
2018 R&R [185], the Court issued an Order [191] granting in part and denying in
part the motion. Plaintiff’s ADA and Michigan medical malpractice causes of action
were dismissed, but his claims for deliberate indifference for lack of proper medical
accommodations and care were not. On September 12, 2019, the Court provisionally
appointed counsel [192] for Plaintiff.
On October 17, 2018, after receiving permission from the Court to file a
second motion under the Rule 56 standard, Defendant Jindal filed her Motion for
Summary Judgment [201]. That motion was fully briefed, and the Magistrate Judge
conducted a hearing on May 16, 2019. She filed an R&R [226] on August 4, 2019.
Defendant filed Objections [227] to the R&R on August 19, 2019.
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STANDARD OF REVIEW
The Court conducts de novo review of objections to a Magistrate Judge’s
Report and Recommendation on a dispositive motion. 28 U.S.C. § 636(b)(1)(c).
Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” FED. R. CIV. P. 56(c). Movant bears the burden
of establishing that there are no genuine issues of material fact, which may be
accomplished by demonstrating that the non-movant lacks evidence to support an
essential element of his case. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Non-movant cannot rest on the pleadings and must show more than “some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd., 475
U.S. at 586-87. Non-movant must “go beyond the pleadings and by . . . affidavits,
or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate
‘specific facts showing that there is a genuine issue for trial.’” Celotex Corp., 477
U.S. at 324 (quoting Rule 56(e)); see also United States v. WRW Corp., 986 F.2d
138, 143 (6th Cir. 1993).
ANALYSIS
Because the “unnecessary and wanton infliction of pain” violates the Eighth
Amendment, “deliberate indifference to a prisoner’s serious illness or injury states a
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cause of action under § 1983.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). An
Eighth Amendment deliberate indifference analysis has both an objective and a
subjective component. Farmer v. Brennan, 511 U.S. 825, 832 (1994). These
components are the grounds for Defendant’s first and second objections.
Defendant’s third and fourth objections are to more specific findings in the R&R.
Objection # 1: The Objective Component
The objective component asks whether the harm inflicted by the officials’
conduct is sufficiently serious to warrant constitutional protection. Hudson v.
McMillian, 503 U.S. 1, 2 (1992). The R&R noted that after Jindal discontinued his
accommodations, Cummings fell at least three more times — on September 26,
October 19, and December 7 — before he was transferred to a new facility and given
full wheelchair accommodations. (R&R 17). Nonetheless, despite Cummings’
repeated complaints, Defendant Jindal continued to deny him wheelchair use for
short distances, preferring that he attempt to walk the best that he could in order to
alleviate his other medical conditions. (Id. at 18). Cummings continued to injure
himself while he haphazardly maneuvered around the prison, requiring repeated trips
to healthcare for pain treatments. (Id.).
Defendant in her objections cast her decision to limit Cummings’ wheelchair
access to “long distance” only as a legitimate medical treatment decision. Defendant
cites a footnote for the proposition that “where a prisoner has received some medical
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attention and the dispute is over the adequacy of the treatment, federal courts are
generally reluctant to second guess medical judgments and to constitutionalize
claims which sound in state tort law.” Westlake v. Lucas, 537 F.2d 857, 860, n. 5
(6th Cir. 1976). This is true, but a reluctance is not a refusal, as the line following
that quoted by Defendant reads, “[o]f course, in some cases the medical attention
rendered may be so woefully inadequate as to amount to no treatment at all.” Id. This
court is ultimately guided by the holding that the footnote was explaining: “a
prisoner who is needlessly allowed to suffer pain when relief is readily available
does have a cause of action against those whose deliberate indifference is the cause
of his suffering.” Westlake, 537 F.2d at 860.
Indeed, “officials may not entirely insulate themselves for liability under §
1983 simply by providing some measure of treatment.” Jones v. Muskegon Cnty.,
625 F.3d 935, 944-45 (6th Cir. 2010) (quoting McCarthy v. Place, 313 Fed.Appx,
810, 814 (6th Cir. 2008)). “[D]eliberate indifference may be established in cases
where it can be shown that a defendant rendered ‘grossly inadequate care’ or made
a ‘decision to take an easier but less efficacious course of treatment.’” Id. From the
evidence on the record, a reasonable jury could find that Cummings suffered serious
harm from grossly inadequate treatment. Cummings’ difficulty ambulating was well
documented and routinely observed. (See Dkt. 205, PageID 2037; 2039-2053).
Summary judgment is not appropriate where a reasonable jury could find that
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requiring a 68-year-old-man to “scoot” up and down stairs when he cannot walk,
despite his back pain and frequent falls, was grossly inadequate.
Objection # 2: The Subjective Component
The subjective component to the Eighth Amendment analysis asks whether
prison officials acted with a “sufficiently culpable state of mind.” Hudson v.
McMillian, 503 U.S. 1, 20 (1992). Proving that an official was merely negligent does
not establish liability. A plaintiff must prove that a prison official acted recklessly,
or with wanton disregard for the health and safety of the plaintiff. Farmer, 511 U.S.
839-840. Plaintiff must show that Defendant “subjectively perceived facts from
which to infer a substantial risk to the prisoner,” that Defendant “did in fact draw the
inference,” and that Defendant “then disregarded that risk.” Richko v. Wayne Cty.,
819 F.3d 907, 915-16 (6th Cir. 2016).
The Magistrate Judge found that there were ample facts from which
Defendant could have inferred a serious risk of harm to Plaintiff. The R&R noted
that Cummings had lived in wheelchair accessible housing accommodations from
November of 2012 to September 26, 2013.2 Indeed, Defendant Jindal originally gave
the verbal order that Plaintiff be given full wheelchair accommodation and a
wheelchair accessible room after Plaintiff complained in his November 28
2
Defendant’s objection to this date is discussed infra at Objection # 3.
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appointment of his November 20, 2012 fall. (Dkt. 203, PageID 1957, 1963).
Defendant countermanded this order following her January 14, 2013 chronic care
visit with Plaintiff, where she ordered wheelchair use for long distance only (Dkt.
203; PageID 1967-1969.). Whether this change went into effect immediately, as
Defendant claims, or not until September, as Plaintiff claims, is irrelevant. By midautumn of that year Plaintiff was falling repeatedly and complaining of pain incurred
from crawling up and down stairs and crawling to the shower. (R&R 20).
Defendant Jindal was aware of Cummings’ falls as late as November 4, 2013,
when she wrote on his chart update “c/o frequent falls/injury due to no handicap
cell.” (Dkt. 203, PageID 2000). Defendant knew that Plaintiff weighed between 250
and 275 pounds and was 68-years-old, so she could easily infer that any one of these
falls could be catastrophic. Given the centrality of Defendant Jindal’s role in
Plaintiff’s treatment, a reasonable jury could certainly find that Jindal did in fact
make that inference. If she did, the next step of the inquiry would ask whether she
disregarded that risk.
Defendant’s objection focuses on the discretion medical officials in prisons
are afforded when balancing competing medical considerations. By her account, she
was prodding a recalcitrant patient into exercising more in order to help him recover
his strength and lessen his many health problems. To credit this account, however,
would be to take the evidence in the light most favorable to Defendant, which is not
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the standard. Indeed, the evidence of Plaintiff’s inability to move safely around the
facility, combined with Jindal’s comment that he could “walk when he wants to,”
suggests that rather than weighing the risks of a long-distance only wheelchair
assignment against its health benefits, Jindal was simply disregarding those risks.
Defendant is right that courts should not second-guess a medical practitioner’s
choice of one legitimate course of treatment over another. See Estelle, 429 U.S. at
107. Ultimately, however, the record does not establish beyond reasonable dispute
that Jindal’s actions were the products of measured medical decisions rather than
those of a cavalier disregard of her preferred treatment plan’s risks. This is therefore
a question for a jury.
Objection # 3: Date of Special Accommodations Reduction
Plaintiff in his Amended Complaint twice states that his special
accommodations were not terminated until September 26, 2013. (Dkt. 82 ¶¶ 15, 55).
The Magistrate Judge credited these statements for purposes of adjudicating this
motion, because Defendant had not disputed them. (R&R 4, n 2). In her objection,
Defendant argues that she did in fact dispute these statements, presumably by
implication, because they are contradicted by an affidavit attached as an exhibit to
her motion. This affidavit merely notes what is already undisputed by all parties, that
Defendant Jindal ended Plaintiff’s wheelchair-accessible cell accommodations on
January 14, 2013. (See Dkt. 201-2, PageID 1925-1926). The affidavit is silent on
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when Plaintiff was actually moved to another cell. It therefore cannot be said that
the date of Plaintiff’s move is an undisputed fact on which summary judgment can
be granted.
That aside, even if Defendant is right and Plaintiff was moved immediately
following her January 14, 2013 order, the fact that Plaintiff may have avoided falls
for nine months before beginning to fall frequently does not excuse Defendant’s
deliberate indifference to his poor condition between his September 26, 2013 fall
and his transfer from the facility. When Plaintiff was moved and what Defendant
observed were the effect of that move would certainly be relevant to a jury, of course.
In this sense Defendant’s objection has only raised another question of material fact.
Objection # 4: Weighing Evidence
Defendant argues that the Magistrate Judge made impermissible credibility
determinations. See Keweenaw Bay Indian Cnty. v. Rising, 477 F.3d 881, 886 (6th
Cir. 2007) (“[w]eighing of the evidence or making credibility determinations are
prohibited on summary judgment”). First, Defendant argues that the Magistrate
Judge erred when she determined that Mr. Cummings was “very large” and that a
fall down the stairs could result in serious injury. It is not clear whether Defendant
is disputing a) the R&R’s statement that Cummings is six feet and seven inches tall
and 250 pounds, b) that this is “very large,” or c) that someone of Cumming’s age
and size could suffer serious injury from a fall down the stairs. These findings are
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not credibility determinations, however. Mr. Cummings’ height and weight were
measured by Roselyn Jindal, P.A. and noted on his Chronic Care Visit reports. (See,
e.g., Dkt. 203, PageID 1948). Taken in the light most favorable to Plaintiff, as
appropriate on summary judgment, the Magistrate Judge was correct to find that a
reasonable jury could find that serious injury would result if Cummings fell down a
flight of stairs.
Defendant next objects that the Magistrate Judge inappropriately found that
Jindal’s statement that Cummings could “walk just fine when he wants to” pertained
to “whether she appreciated the risk and ignored it.” Again, the Magistrate Judge
was not acting as a fact-finder, but only marshaling evidence that a reasonable jury
could use to make a certain determination. How Jindal’s statements pertained to her
state of mind is a fact question, and the Court is satisfied that the Magistrate Judge
referenced them as such, without making factual findings.
CONCLUSION
The evidence, taken in the light most favorable to Plaintiff, tells a story of a
man who needed special accommodations — including the full use of a wheelchair
and barrier-free housing — was deprived of those accommodations, and was injured
and humiliated as a result. Defendant interprets the evidence in a light more
favorable to her position. She suggests that she limited Plaintiff’s wheelchair use in
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an effort to build up his strength and ameliorate his more serious health problems. A
jury, not a judge, must choose between these two competing narratives.
A prison system that forces its inmates to crawl, shimmy, scoot, or stagger up
and down stairs is more medieval than modern. At least in Humpty Dumpty’s time
none would have the audacity to suggest that when one lets a fragile man fall one
does his health a favor. Prisons punish those whom they confine, but they do not
exist to shatter them. Drawing all factual inferences in Plaintiff’s favor, the MDOC’s
restriction of Mr. Cummings’ accommodations was an affront to the Constitution
and a betrayal of all in this state who benignly trust that their prisons are being
operated in a just and civilized manner. That this may be an isolated incident is little
comfort to the Court: an egg only need crack once before it is lost. A prisoner can
seek damages under § 1983, but the federal courts cannot put him back together
again.
The Report and Recommendation [226] is hereby ADOPTED and entered as
the findings and conclusions of the Court.
IT IS ORDERED that Defendant’s Motion for Summary Judgment [201] is
DENIED, and her Objections [227] to the R&R are OVERRULED.
SO ORDERED.
Dated: September 27, 2019
/s/Arthur J. Tarnow___________________
Arthur J. Tarnow
Senior United States District Judge
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