Weatherspoon v. LNU et al

Filing 67

ORDER (1) Overruling Plaintiff's 52 Objections; (2) Adopting the Magistrate Judge's 49 Report and Recommendation as the Opinion of the Court; (3) Granting the MDOC Defendants' 18 Motion for Summary Judgment; and (4) Denying Plaintiff's 38 , 39 , 40 and 41 Motions to Dismiss. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MORRIS WEATHERSPOON,
Plaintiff,

Case No. 14-cv-12789
Hon. Matthew F. Leitman

v.
GEORGE LNU, et al.
Defendants.
_________________________________/
ORDER (1) OVERRULING PLAINTIFF’S OBJECTIONS (ECF #52); (2)
ADOPTING THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION (ECF #49) AS THE OPINION OF THE COURT; (3)
GRANTING THE MDOC DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT (ECF #18); AND (4) DENYING PLAINTIFF’S MOTIONS
FOR SUMMARY JUDGMENT (ECF ##38-41)
In this action, Plaintiff Morris Weatherspoon (“Weatherspoon”) – an inmate
in the custody of the Michigan Department of Corrections (“MDOC”) – alleges
that Defendants Jon Pavitt (“Pavitt”), Gail Wang (“Wang”), Eutrilla Taylor
(“Taylor”), and Diana Hering (“Hering”) (collectively, the “MDOC Defendants”)
violated his First and Eighth Amendment Rights. The assigned Magistrate Judge
has issued a Report and Recommendation (the “R&R”) in which he recommends
that this Court (1) grant summary judgment in favor of the MDOC Defendants, and
(2) deny Weatherspoon summary judgment.

(See ECF #49.)

Weatherspoon

objects to the R&R (the “Objections”). (See ECF #52.) The Court has now

conducted a de novo review of the parts of the R&R to which Weatherspoon
objects. For the reasons stated below, the Court OVERRULES the Objections,
ADOPTS the R&R as the Opinion of this Court, GRANTS summary judgment to
the MDOC Defendants, and DENIES Weatherspoon summary judgment.
RELEVANT FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On July 3, 2014, Weatherspoon filed this pro se action asserting claims
under 42 U.S.C. § 1983. (See ECF #1.) As relevant here, Weatherspoon alleges
that:
1. On three occasions in early 2013, Hering, a registered nurse
employed by the MDOC, denied Weatherspoon access to pain
relief medication that he needed for his leg pain (see ECF #1 at
¶13; see also ECF #18-2 at ¶1);
2. On March 3, 2013, Wang (a dentist) and Pavitt (a registered
dental hygienist) “repeatedly failed to provide [Weatherspoon]
teeth cleaning, dentures, urgent and routine dental care when
treatment was available” (ECF #1 at ¶13; see also ECF #18-3 at
¶1 and ECF #18-4 at ¶1); and
3. Between January 29 and April 29, 2013, Taylor – a
“Corrections Resident Representative (Grievance Coordinator)”
employed by the MDOC (ECF #18-5 at ¶1) – retaliated against
Weatherspoon by failing to process and/or respond to internal
prison grievances that he tried to file (see ECF #1 at ¶16.)
Weatherspoon insists that these acts by the MDOC Defendants violated his rights
under the First and/or Eighth Amendments. (See id. at ¶¶18-21, 23-25.)
The MDOC moved for summary judgment as to all of Weatherspoon’s
claims against them (the “MDOC Defendants’ Motion for Summary Judgment”).
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(See ECF #18.) Weatherspoon responded to that motion and also filed “Motion[s]
to Dismiss [the MDOC Defendants’] Summary Judgment Motion[s] Pursuant to
Fed. R. Civ. P. Rule 56.” (ECF #38-41.) This Court construes Weatherspoon’s
“motions” as both supplemental responses to the MDOC Defendants’ motion for
summary judgment and as separate, cross-motions for summary judgment
(“Weatherspoon’s Motions for Summary Judgment”).
On April 24, 2015, the Magistrate Judge issued his R&R in which he
recommended that the Court grant the MDOC Defendants’ Motion for Summary
Judgment and deny Weatherspoon’s Motions for Summary Judgment. (See ECF
#49.) The Magistrate Judge stated that the MDOC Defendants are entitled to
qualified immunity as to all of Weatherspoon’s claims because “there is no
evidence that the MDOC Defendants violated Weatherspoon’s rights under the
First or Eight Amendments.” (Id. at 5, Pg. ID 335.) The Magistrate Judge advised
the parties that they could file objections to the R&R within 14 days. (See id. at
12, Pg. ID 342.)
On May 7, 2015, Weatherspoon sought an extension of time in which to file
objections to the R&R (the “Motion to Extend”). (See ECF #50.) Weatherspoon
filed his Objections on May 15, 2015. (See ECF #52.) The Court has considered
Weatherspoon’s Objections on their merits and, for the reasons discussed below,
OVERRULES the Objections.
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GOVERNING LEGAL STANDARD
Where a party has objected to portions of a Magistrate Judge's Report and
Recommendation, the Court conducts a de novo review of those portions. See Fed.
R. Civ. P. 72(b). A movant is entitled to summary judgment when it “shows that
there is no genuine dispute as to any material fact....” U.S. SEC v. Sierra Brokerage
Services, Inc., 712 F.3d 321, 326–27 (6th Cir. 2013) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251–52 (1986)) (quotations omitted). When reviewing
the record, “the court must view the evidence in the light most favorable to the
non-moving party and draw all reasonable inferences in its favor.” Id. “The mere
existence of a scintilla of evidence in support of the [non-moving party’s] position
will be insufficient; there must be evidence on which the jury could reasonably
find for [that party].” Anderson, 477 U.S. at 252. Summary judgment is not
appropriate when “the evidence presents a sufficient disagreement to require
submission to a jury.” Id. at 251-252. Indeed, “[c]redibility determinations, the
weighing of the evidence, and the drafting of legitimate inferences from the facts
are jury functions, not those of a judge…” Id. at 255.
ANALYSIS
A. Weatherspoon’s Claim Against Hering
Weatherspoon first objects to the Magistrate Judge’s recommendation that
Hering is entitled to qualified immunity on Weatherspoon’s claim that Hering
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acted with deliberate indifference to his medical needs. An Eighth Amendment
deliberate indifference claim has two components, one objective and the other
subjective.

See Farmer v. Brennan, 511 U.S. 825, 834 (1994); Comstock v.

McCrary, 273 F.3d 693, 702 (6th Cir. 2001). To satisfy the objective component,
the plaintiff must show “that the medical need at issue is ‘sufficiently serious.’”
Comstock, 273 F.3d at 702. To satisfy the subjective component, the plaintiff must
show “that the official being sued subjectively perceived facts from which to infer
substantial risk to the prisoner, that [s]he did in fact draw the inference, and that
[s]he then disregarded that risk.” Id.
The Magistrate Judge stated:
Weatherspoon indicates that, at his March 10th visit with
Hering, she provided him with “4 tablet[s] of pain relief
medication.” Thus … by his own admission, Hering did
not completely withhold medication; rather, she simply
provided a smaller quantity (and perhaps a different type)
of medication than Weatherspoon desired.
…
Hering … submitted an affidavit in which she indicates
that she saw Weatherspoon in healthcare on March 11,
2013, after her had submitted a “kite” requesting medical
attention.
According to Hering, she examined
Weatherspoon and obtained his vital signs. He presented
with “no acute symptoms,” and – just prior to this nurse
visit – had been evaluated by Dr. Abdellatif (another
named defendant) and provided with pain medication.
Weatherspoon also alleges that Hering refused his
request for referral to an outside hospital and evaluation
by a specialist; however, Hering attests that registered
nurses do not have the authority to make such referrals,
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and Weatherspoon has offered no evidence suggesting
otherwise. Thus, where Weatherspoon admits that
Hering provided him with medical attention and pain
medication, and simply disagrees with Hering’s decision
not to provide him with additional medication or refer
him to a specialist, summary judgment in Hering’s favor
is appropriate. See, e.g., Allison v. Martin, 2009 WL
2885088, at *6 (E.D. Mich. Sept. 2, 2009) (“In cases
where an inmate alleges deliberate indifference but the
record demonstrates that the inmate received medical
attention and is, in essence, filing suit because he
disagrees with certain decisions made by the medical
staff, the defendant is entitled to summary judgment.”);
Umbarger v. Corr. Med. Servs., 93 F. App’x 734, 736
(6th Cir. 2004) (holding that a difference of opinion or
disagreement between a prisoner and prison medical staff
over the kinds of treatment the prisoner needs do not rise
to the level of deliberate indifference).
(ECF #49 at 7-8, Pg. ID 337-38) (footnote and citations to record omitted).
Weatherspoon objects to the R&R on the ground that Hering’s affidavit is a
“sham.” (ECF #52 at 1, Pg. ID 349.) Weatherspoon insists that Hering’s affidavit
is false because she examined Weatherspoon on March 9 and 10, 2013, but not on
March 11, 2013. (See id.) However, Weatherspoon has not shown that the date on
which Hering examined him is a material fact.

Indeed, even accepting

Weatherspoon’s version of events as true – i.e., that Hering examined
Weatherspoon on March 9 and 10 but not on March 11 – Weatherspoon’s claim
against Hering still boils down to his apparent disagreement with the type and/or
quantity of pain medication that Hering prescribed him. As the Magistrate Judge
correctly recognized, Weatherspoon cannot establish an Eighth Amendment
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deliberate indifference claim on this basis.    See, e.g., Thomas v. Coble, 55 Fed.
App’x 748 (6th Cir. 2003) (affirming dismissal of deliberate indifference claim
based upon failure to prescribe requested pain medication where plaintiff had been
prescribed pain medications, just not the ones he requested)
B. Weatherspoon’s Claims Against Wang and Pavitt
Weatherspoon next objects to the Magistrate Judge’s recommendation that
Wang and Pavitt are entitled to qualified immunity on Weatherspoon’s claims that
they acted with deliberate indifference to his medical needs. The Magistrate Judge
stated:
Weatherspoon alleges that, on March 3, 2013, Pavitt and
Wang “failed to provide teeth cleaning, dentures, [and]
urgent and routine dental care when treatment was
available.” In their affidavits, however, Wang … and
Pavitt … indicate that, on February 26, 2013, the dental
clinic received a request for dental services from
Weatherspoon, in which he complained about a
bump/sore on his gums. Weatherspoon was placed on
the callout list for March 4, 2013, but he was a “no
show” for his appointment, which was promptly
rescheduled.
Dr. Wang performed an emergency
examination of Weatherspoon’s gums two days later, on
March 6, 2013, at which time no bumps or sores were
present on his gums. Although Weatherspoon now
claims that he presented with “symptoms of swelling,
infection and bleeding,” the medical records indicate
otherwise, specifically stating, “[n]o sore present” and
the sore “[h]ad been present for 10 days and then
‘disappeared.’” According to Wang’s and Pavitt’s
affidavits, as well as the relevant medical records,
Weatherspoon also requested that he be provided a lower
partial denture at this time. Weatherspoon was informed
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that he had been placed on the prosthetic list, but he
transferred out of [the Macomb Correctional Facility] on
April 30, 2013, before the dental work could be
completed. Both Pavitt and Wang attest that at no time
did they deny Weatherspoon necessary dental care, and
Weatherspoon has come forward with no evidence to the
contrary. Again, then, despite the fact that Weatherspoon
believes he should have had his teeth cleaned and been
provided with dentures at his March 2013 dental visit, his
allegations amount to nothing more than a vague dispute
over the adequacy of the dental care his was provided.
This is insufficient to establish a constitutional violation,
and, thus, summary judgment is appropriate on
Weatherspoon’s Eight Amendment claims against Pavitt
and Wang. See Allison, 2009 WL 2885088, at *6;
Umbarger, 93 F. App’x at 736.
(ECF #49 at 8-9, Pg. ID 338-39) (footnote and citations to record omitted).
Weatherspoon again objects to the R&R on the ground that Wang’s and
Pavitt’s affidavits are a “sham.” (ECF #52 at 2, Pg. ID 350.) Weatherspoon
contends that the affidavits are contradictory because Pavitt attested that
Weatherspoon received dental treatment on March 4, 2013 (see ECF #18-4 at ¶4),
whereas Wang attested that Weatherspoon “did not report to the dental clinic” on
March 4, 2015, and instead received treatment on March 6, 2013. (ECF #18-3 at
¶3.) But Weatherspoon has not shown that the alleged inconsistencies in the
affidavits regarding his treatment date are material to his Eighth Amendment
deliberate indifference claim.
Moreover, and in any event, Weatherspoon has not presented evidence that
Wang and Pavitt were deliberately indifferent to his medical needs. Weatherspoon
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submitted affidavits in which he asserts that Wang “did not act reasonably” and
that Pavitt “violated a health and safety regulation and standard of care” in
responding to Weatherspoon’s dental health issues. (ECF #41 at ¶6; ECF #38 at
¶6.) But “that is the language of medical malpractice, not deliberate indifference.”
Bruederle v. Louisville Metro Gov’t, 687 F.3d 771, 778 (6th Cir. 20120); see also
Comstock, 273 F.3d at 703 (allegations that a health care provider acted
unreasonably and/or did not meet the standard of care are insufficient to establish
deliberate indifference under the Eighth Amendment).

Weatherspoon has not

shown that Wang and Pavitt “subjectively perceived facts from which to infer
substantial risk to [Weatherspoon], that [they] did in fact draw the inference, and
that [they] then disregarded that risk.” Comstock, 273 F.3d at 702. Accordingly,
Wang and Pavitt are entitled to summary judgment.
C. Weatherspoon’s Claim Against Taylor
Finally, Weatherspoon objects to the Magistrate Judge’s recommendation
that Taylor is entitled to qualified immunity on Weatherspoon’s claim that she
retaliated against him in violation of the First Amendment by failing to process
and/or respond to internal prison grievances that he tried to file. In order to
establish First Amendment retaliation, a “a plaintiff must prove that 1) he engaged
in protected conduct, 2) the defendant took an adverse action that would deter a
person of ordinary firmness from continuing to engage in that conduct, and 3) the
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adverse action was taken at least in part because of the exercise of the protected
conduct.” Siggers-El v. Barlow, 412 F.3d 693, 699 (6th Cir. 2005).
The Magistrate Judge stated:
Weatherspoon does nothing more than allege the ultimate
conclusion of retaliation. He simply asserts – without
any detail or evidentiary support whatsoever – that
Taylor took adverse action against him (by allegedly
denying him the ability to file grievances) in retaliation
for some (unspecified) alleged protected activity.
Weatherspoon has not identified the underlying protected
activity in which he allegedly engaged, has not
demonstrated that Taylor was aware of that alleged
activity, and has not offered any evidence of unlawful,
retaliatory motivation on her part. Accordingly, because
Weatherspoon has not established that Taylor violated his
clearly established First Amendment rights, Taylor is
entitled to qualified immunity. See Harbin-Bey [v.
Rutter], 420 F.3d [571,] 580 [(6th Cir. 2005)]
(“conclusory allegations of retaliatory motive
unsupported by material facts will not be sufficient to
state … a claim under § 1983.”) (internal quotations
omitted).
(ECF #49 at 10-11, Pg. ID 340-41) (footnote and citations to record omitted).
Weatherspoon insists that he has presented evidence that Taylor retaliated
against him. (See ECF #52 at 3, Pg. ID 351.) Weatherspoon cites to a letter dated
January 2, 2013, from Warden Duncan MacLaren (the “MacLaren Letter”)
informing Weatherspoon that he had been placed on “Modified Access Status”
because he had filed too many rejected grievances. (See id. (citing ECF #1 at 36,
Pg. ID 36).) The MacLaren Letter further stated that Weatherspoon would have to
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“explain [his] issue to the Grievance Coordinator” prior to filing a grievance and
that the Grievance Coordinator “will decide if the issue is grievable and has merit.”
(ECF #1 at 36, Pg. ID 36.) But the MacLaren Letter is not evidence that Taylor
took any adverse action against Weatherspoon, nor that Taylor had any animus
against Weatherspoon. The MacLaren Letter is therefore insufficient to create a
genuine issue of material fact as to Weatherspoon’s allegations that Taylor
retaliated against him in violation of the First Amendment.
Weatherspoon also objects to the R&R on the ground that Taylor’s sworn
statements that she did not “interfere with the grievance process” or “retaliate
against prisoner Weatherspoon” (ECF #18-5 at ¶¶3-4) are “not credible.” (ECF
#52 at 3, Pg. ID 351.)

But “credibility judgments … are prohibited” at the

summary judgment stage, Schreiber v. Moe, 596 F.3d 323, 333 (6th Cir. 2010),
and, in any event, the Magistrate Judge did not rely on Taylor’s affidavit. Because
Weatherspoon has not presented evidence sufficient to create a genuine issue of
material fact, Taylor is entitled to summary judgment.
CONCLUSION
For the reasons discussed in this Order, IT IS HEREBY ORDERED that
the MDOC’s Motion for Summary Judgment (ECF #18) is GRANTED and
Weatherspoon’s Motions for Summary Judgment (ECF ##38-41) are DENIED.

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IT IS FURTHER ORDERED that Weatherspoon’s Motion to Extend
(ECF #50) is TERMINATED AS MOOT.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: August 31, 2015
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on August 31, 2015, by electronic means and/or ordinary
mail.
s/Holly A. Monda
Case Manager
[phone]

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