Imelmann v. Corizon Inc. et al

Filing 78

OPINION AND ORDER (1) Accepting the Magistrate Judge's Recommendation Dated November 25, 2015 (Dkt. 53 ); (2) Overruling Plaintiff's Objections (Dkt. 57 ); (3) Denying Plaintiff's Motion for Preliminary Injunction (Dkt. 15 ); (4) Accepting the Magistrate Judge's Second Recommendation Dated December 16,2015 (Dkt. 58 ); and (5) Granting Defendant Ryder's Motion for Summary Judgment(Dkt. 21 ) Signed by District Judge Mark A. Goldsmith. (Sandusky, K)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CHRISTOPHER IMELMANN,
Plaintiff,

Case No. 15-10343
Hon. Mark A. Goldsmith

vs.
CORIZON INC., et al.,
Defendants.
____________________________/
OPINION AND ORDER (1) ACCEPTING THE MAGISTRATE JUDGE’S
RECOMMENDATION DATED NOVEMBER 25, 2015 (Dkt. 53); (2) OVERRULING
PLAINTIFF’S OBJECTIONS (Dkt. 57); (3) DENYING PLAINTIFF’S MOTION FOR
PRELIMINARY INJUNCTION (Dkt. 15); (4) ACCEPTING THE MAGISTRATE
JUDGE’S SECOND RECOMMENDATION DATED DECEMBER 16, 2015 (Dkt. 58);
AND (5) GRANTING DEFENDANT RYDER’S MOTION FOR SUMMARY JUDGMENT
(Dkt. 21)
I. BACKGROUND
Plaintiff Christopher Imelmann, a state prisoner at the Lakeland Correctional Facility
(“LCF”) in Coldwater, Michigan, brings two civil rights claims against Defendants, who are
various entities involved in providing the health care Plaintiff receives at LCF.
Plaintiff’s first claim is not before the Court at this time.1 His second claim alleges that
Plaintiff receives so few medically necessary supplies that it infringes his Eighth Amendment
right to be free from cruel and unusual punishment. Plaintiff also alleges that this violates Title
II of the Americans with Disabilities Act. This claim for medical supplies is the subject of
Plaintiff’s motion for preliminary injunction (Dkt. 15) and the Magistrate Judge’s first Report &
Recommendation (“R&R”) (Dkt. 53).

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Plaintiff’s first claim, brought under the Eighth Amendment and Title II of the Americans with
Disabilities Act, alleges that Defendants failed to provide him with a referral to a neurosurgeon
not affiliated with LCF, who could have corrected broken instrumentation in his spine. Compl.
¶ 18 (Dkt. 1).
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Specifically, Plaintiff self-administers a urethral catheter in order to empty his bladder
because of a spinal cord injury that he suffered in 1985, which left him an “incomplete”
paraplegic. Compl. ¶ 25 (Dkt. 1). At the time he filed his complaint, the medical unit at LCF
provided him with seven packets of lubricating jelly per week and two “single use” catheters per
week. Id. ¶ 32. Plaintiff claims that, because insertion of the catheter without lubrication is
“akin to being tortured,” id. ¶ 27, this insufficient amount of lubricating jelly limited him to one
catheterization per day, causing all manner of health issues. He further alleges that having to reuse the “single use” catheters throughout the week is dangerously unsanitary. Id. ¶ 32.
Plaintiff’s complaint alternatively requests “4-6 catheters per day,” id. ¶ 34, and “150
catheters per month and one single-use packet of lubricating jelly for each catheter,” id. at 17
(cm/ecf page) (“Relief Requested”).2 In his motion for preliminary injunction, Plaintiff requests
four to six catheters and lubricant packets per day. Pl. Mot. at 3. After the institution of this
action, and in response to Plaintiff’s February 5, 2013 grievance, the Michigan Department of
Corrections (“MDOC”) modified Plaintiff’s medical protocol to allow for four catheters and four
packets of lubricating jelly per day. Second Supp. Resp. to Pl. Mot. at 4 (Dkt. 43). Plaintiff
concedes that he is now receiving four catheters and four packets of lubricating jelly per day,
which meets his needs, but, in his objection, Plaintiff objects to the medical protocol’s
inflexibility. Pl. Obj. at 3 (cm/ecf page) (Dkt. 57) (“Defendants should adjust [P]laintiff’s
medical protocol to four catheters and four packages of lubricating jelly per day or more as
needed.” (Emphasis in original)).
On November 25, 2015, after a telephonic hearing and supplemental briefing, Magistrate
Judge Hluchaniuk issued an R&R recommending that Plaintiff’s motion for a preliminary
injunction be denied. The recommendation noted that granting a preliminary injunction requires

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One hundred fifty catheters per month averages to roughly 5 catheters per day over one year’s
time.
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the movant to demonstrate, among other things, a threat of irreparable harm — specifically,
future harm. First R&R at 13-14. And, as a result of the MDOC’s modification to Plaintiff’s
medical protocol, “even Plaintiff feels that his urological needs are being adequately met.” Id. at
15. Accordingly, recommended the Magistrate Judge, so long as Plaintiff’s medical needs and
his medical protocol remain stable, there is no threat of irreparable future harm. As explained
below, the Court accepts the recommendation of the Magistrate Judge and denies Plaintiff’s
motion for a preliminary injunction.
Also related to Plaintiff’s second claim is Defendant Rhonda Ryder’s motion for
summary judgment (Dkt. 21).

Plaintiff is suing Ryder in both her official and individual

capacities, seeking declaratory and injunctive relief, as well as money damages, for her alleged
role in refusing to provide the proper amount of catheters and lubricant. Compl. ¶ 27. Ryder,
one of Plaintiff’s nurses at LCF, files her motion on grounds that Plaintiff failed to properly
exhaust his administrative remedies regarding the issues raised in the complaint as to her. Ryder
is only mentioned by Plaintiff’s complaint in the context of his claim regarding the catheters and
lubricant packets; Ryder is not alleged to have been involved in the decision whether to refer
Plaintiff to a neurosurgeon, which forms the basis of his other claim.
The Magistrate Judge’s second R&R (Dkt. 58) recommended that Defendant Ryder’s
motion be granted. No parties objected to the second R&R, and the time to do so has expired.
II. STANDARD OF REVIEW
The detailed procedural and factual background, along with the standard of review and
legal principles governing motions for summary judgment under Federal Rule of Civil Procedure
56, have been adequately set forth by the Magistrate Judge in his R&Rs. The Court reviews de
novo any portion of the R&R to which a specific objection has been made. Fed. R. Civ. P. 72(b).
Any arguments made for the first time in objections to an R&R are deemed waived. Uduko v.
Cozzens, 975 F. Supp. 2d 750, 757 (E.D. Mich. 2013). For the reasons that follow, the Court
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accepts the recommendations made in both R&Rs, denies Plaintiff’s motion for a preliminary
injunction, and grants Defendant Ryder’s motion for summary judgment.
III. DISCUSSION
1. The First Report and Recommendation (Dkt. 53)
Plaintiff raises two objections to the first R&R. First, he reiterates his position that a
Michigan statute, which prohibits certain health care facilities’ reuse of “single-use” medical
devices, is controlling. Obj. at 3 (cm/ecf page) (citing Mich. Comp. Laws § 333.20153). More
specifically, in his Reply to Defendant’s Response, Plaintiff, for the first time, argued that LCF’s
health care facility was within the ambit of that statute. Pl. Reply at 3 (Dkt. 27). By invoking
the statute, Plaintiff claimed that he was entitled to receive at least one “single-use” catheter for
every self-catheterization. Pl. Obj. at 3. If true, this would refute Defendants’ initial argument
that two catheters per week were adequate to meet Plaintiff’s needs.
This objection fails for two reasons. First, even assuming for the sake of argument that
the statute controls, by Plaintiff’s own admission, Defendants’ conduct complies with it, as his
needs are currently met. Pl. Reply to Def. Ryder’s Supp. Br. at 2 (“At this point in time the
allotment is adequate to meet Plaintiff’s medical needs.”) (Dkt. 47). Plaintiff is not required to
re-use single-use catheters. And second, in light of Defendants’ compliance with the statute,
Plaintiff’s objection is not responsive to the R&R, because the R&R does not base its analysis
on, or even mention, the inapplicable Michigan statute. Rather, the R&R concludes that a
preliminary injunction is inappropriate because Plaintiff himself admits that there is no danger of
future irreparable harm. First R&R at 13-14; see also Pl. Reply to Def. Ryder’s Supp. Br. at 2.
Plaintiff’s only other objection appears to be founded upon speculation that, at some
point, he may need more than four catheters and four packets of lubricating jelly per day. In
other words, although he admits that his needs are currently met, he objects “to the hard number
4” and argues that “Defendants should adjust [P]laintiff’s medical protocol . . . as needed.” Pl.
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Obj. at 3 (emphasis in original). However, as noted by the Magistrate Judge, granting a motion
for preliminary injunction requires the movant to show a risk of future harm. Plaintiff must
show that “irreparable harm is both certain and immediate, rather than speculative or theoretical
to satisfy [his] burden to receive preliminary injunctive relief.” Conway v. Purves, 963 F. Supp.
2d 708, 712 (E.D. Mich. 2013) (citing NACCO Materials Handling Grp., Inc. v. Toyota
Materials Handling USA, Inc., 246 F. App’x 929, 943 (6th Cir. 2007)). In light of the change to
his medical protocol, Plaintiff’s current worry is exactly the speculative kind that is insufficient
to justify a preliminary injunction. See Turner v. Heckler, 783 F.3d 657, 660-661, 662 (6th Cir.
1986) (reversing grant of preliminary injunction because defendant showed it had cured violation
after plaintiff’s request for injunction, but before injunction issued).
Because Plaintiff’s objections to the first R&R are without merit, the Court accepts the
recommendation contained in the R&R and denies Plaintiff’s motion for a preliminary
injunction.
2. The Second Report and Recommendation (Dkt. 58)
The matter of Defendant Ryder’s motion for summary judgment is before the Court on
the R&R of Magistrate Judge Hluchaniuk, issued on December 16, 2015. In the second R&R,
the Magistrate Judge recommends that Defendant’s motion for summary judgment be granted
and that Plaintiff’s complaint as to Defendant Ryder be dismissed without prejudice for failure to
exhaust his administrative remedies. The parties have not filed objections to the second R&R,
and the time to do so has expired. See Fed. R. Civ. P. 72(b)(2). The Court has reviewed the
second R&R and concludes that the Magistrate Judge has reached the proper conclusion for the
proper reasons.

Therefore, the second R&R is accepted and adopted as the findings and

conclusions of the Court. Accordingly, Defendant’s motion for summary judgment is granted
and Plaintiff’s complaint as to Defendant Ryder is dismissed without prejudice.
IV. CONCLUSION
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For the reasons set forth above, the Court accepts the Magistrate Judge’s first
recommendation dated November 25, 2015 (Dkt. 53); overrules Plaintiff’s objections thereto
(Dkt. 57) and denies Plaintiff’s motion for a preliminary injunction (Dkt. 15); accepts the
Magistrate Judge’s second recommendation dated December 16, 2015 (Dkt. 58); grants
Defendant Ryder’s motion for summary judgment (Dkt. 21); and dismisses Plaintiff’s claim
against Defendant Ryder without prejudice.
SO ORDERED.
Dated: February 23, 2016
Detroit, Michigan

s/Mark A. Goldsmith
MARK A. GOLDSMITH
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and
any unrepresented parties via the Court's ECF System to their respective email or First Class
U.S. mail addresses disclosed on the Notice of Electronic Filing on February 23, 2016.
s/Karri Sandusky
Case Manager

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