Hoosier v. Liu et al

Filing 53

ORDER Granting Plaintiff's 44 Motion for Reconsideration and Order Accepting 40 Report and Recommendation to Grant the Construed Motion for Partial Summary Judgment Filed by Defendants Wendy Liu, N.P., Shi-Yu Tan, M.D., Rickey Coleman, M.D., and Steven Bergman, M.D.; and to Grant in Part the Motion for Summary Judgment Filed by Defendants Vicki Carlson and Renyu Xue. Signed by District Judge Denise Page Hood. (TMcg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DWAYNE HOOSIER,
Plaintiff,

CASE NO. 16-10688
HON. DENISE PAGE HOOD

v.
WENDY LIU, et al.,
Defendants.
/

ORDER GRANTING PLAINTIFF’S
MOTION FOR RECONSIDERATION [# 44]
and
ORDER ACCEPTING REPORT AND RECOMMENDATION [#40]
TO GRANT THE CONSTRUED MOTION FOR PARTIAL SUMMARY
JUDGMENT FILED BY DEFENDANTS WENDY LIU, N.P., SHI-YU TAN,
M.D., RICKEY COLEMAN, M.D., AND STEVEN BERGMAN, M.D.;
AND TO GRANT IN PART THE MOTION FOR SUMMARY JUDGMENT
FILED BY DEFENDANTS VICKI CARLSON AND RENYU XUE

I.

BACKGROUND
On January 23, 2017, Magistrate Judge Anthony P. Patti filed a Report and

Recommendation (Doc # 40) on a Partial Motion for Judgment on the Pleadings
filed by Defendants Wendy Liu, Shi-Yu Tan, Rickey Coleman, and Steven
Bergman (Doc # 26), and a Motion for Summary Judgment filed by Defendants
Vicki Carlson and Renyu Xue (Doc # 35). On February 15, 2017, the Court
entered an Order Accepting the Report and Recommendation. (Doc # 43) The
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Court noted that no objections to the Report and Recommendation had been filed,
and that the time to file objections had passed. Id. at Pg ID 540.
This matter is now before the Court on Plaintiff Dwayne Hoosier’s Motion
for Reconsideration filed pro se on March 7, 2017. (Doc # 44) Plaintiff argues
that he did timely file objections pursuant to the prison mailbox rule.
II.

MOTION FOR RECONSIDERATION
The Local Rules of the Eastern District of Michigan provide that any motion

for reconsideration must be filed within 14 days after entry of the judgment or
order. E.D. Mich. LR 7.1(h)(1). No response to the motion and no oral argument
thereon are permitted unless the Court orders otherwise.

Id. at 7.1(h)(2).

Plaintiff’s Motion is timely filed. See Doc # 44, Pg ID 545.
Local Rule 7.1 further states:
(3) Grounds. Generally, and without restricting the court’s
discretion, the court will not grant motions for rehearing or
reconsideration that merely present the same issues ruled upon by the
court, either expressly or by reasonable implication. The movant must
not only demonstrate a palpable defect by which the court and the
parties and other persons entitled to be heard on the motion have been
misled but also show that correcting the defect will result in a
different disposition of the case.
Id. at 7.1(h)(3).

“A ‘palpable defect’ is a defect which is obvious, clear,

unmistakable, manifest, or plain.” Fleck v. Titan Tire Corp., 177 F. Supp. 2d 605,
624 (E.D. Mich. 2001).

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Plaintiff argues that the Court made a palpable error in its February 15, 2017
Order when it found that no timely objections to the Report and Recommendation
had been filed. Plaintiff maintains that he did timely file objections pursuant to the
prison mailbox rule.
In order to preserve the right to appeal the magistrate judge’s
recommendation, a party must file objections to the report and recommendation
within fourteen days of service of the report and recommendation. Fed. R. Civ. P.
72(b)(2). Failure to file specific objections constitutes a waiver of any further right
of appeal. Thomas v. Arn, 474 U.S. 140, 155 (1985); Howard v. Sec’y of Health &
Human Servs., 932 F.2d 505, 508-09 (6th Cir. 1991); United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981).
The mailbox rule provides that documents submitted by prisoners are
deemed filed when the prisoner delivers the documents to the proper prison
authorities for forwarding to the district court. See Towns v. United States, 190
F.3d 468, 469 (6th Cir. 1999); Houston v. Lack, 487 U.S. 266, 270 (1988).
The record shows that Plaintiff filed Objections to the Report and
Recommendation. (Doc # 41) Although this document was not filed by the
Clerk’s Office until February 14, 2017, the proof of service indicates that Plaintiff
delivered the Objections to prison mailroom personnel on February 8, 2017, before
the February 9, 2017 deadline to file objections to the Report and
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Recommendation. See id. at Pg ID 526. Accordingly, Plaintiff’s Objections were
timely filed, and the Court will grant Plaintiff’s Motion for Reconsideration (Doc #
44). The Court next turns to analyzing Plaintiff’s Objections.
III.

PLAINTIFF’S
OBJECTIONS
RECOMMENDATION

TO

Plaintiff

Objections

has

timely

filed

three

THE

REPORT

to

the

Report

AND

and

Recommendation. (Doc # 41)
The standard of review by the district court when examining a Report and
Recommendation is set forth in 28 U.S.C. § 636. This Court “shall make a de novo
determination of those portions of the report or the specified proposed findings or
recommendations to which an objection is made.” 28 U.S.C. § 636(b)(1)(C). The
court “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” Id.
A.

First Objection- Defendant Liu

Plaintiff’s first objection is to the Magistrate Judge’s conclusions as to
Defendant Liu. Plaintiff first argues that the claims against Liu were properly
exhausted because they were responded to before being denied due to untimeliness
at Step II of the Michigan Prison Grievance Procedures.
On January 20, 2015, Plaintiff filed a Step I grievance, number JCF-201501-0189-12I, against Liu alleging that she “changed/deleted” medical orders
without his having seen a physician, including deleting his “extra pillow; extra
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blanket; ice detail; snack bag detail; chow after med lines; [and] reduc[ing] the
taking of [his] vitals.” (Doc # 26-1, Pg ID 238) This grievance was denied
because Liu, as a nurse practitioner, possessed the authority to make the changes at
issue, which were deemed appropriate. Id. at 239. Plaintiff appealed, but his Step
II appeal was denied as untimely on March 19, 2015. Id. at 237. The Magistrate
Judge correctly noted that this is the only grievance regarding Liu’s alleged failure
to make reasonable accommodations under the ADA and Rehabilitation Act and
Liu’s alleged violation of the Eight Amendment by cancelling accommodations
that Plaintiff was receiving.
On March 10, 2015, Plaintiff filed a Step I grievance, number JCF-2015-030627-12D4, against Liu alleging that she sent a slanderous e-mail to “medical staff
health care [sic] provider” Raul Tamada. Plaintiff claimed that the alleged e-mail
stated that Plaintiff was “pimping transvestite’s [sic]” and is a manipulator who has
caused problems, which resulted in Plaintiff receiving improper health care. (Doc
# 26-1, Pg ID 227, 229) This grievance was denied because Plaintiff had shown
significant medical improvement and because his allegation of improper health
care was deemed unfounded. Id. at 228. Plaintiff appealed, but his Step II appeal
was denied as untimely on June 11, 2015. Id. at 226. The Magistrate Judge
correctly noted that this is the only grievance regarding Liu’s alleged  sending of a
slanderous email in violation of the Federal Torts Claims Act.
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After review of the Report and Recommendation and Plaintiff’s Objections,
the Court finds that the Magistrate Judge’s conclusion that the specified claims
against Liu were not properly exhausted was correct. See Doc # 40, Pg ID 497501. Plaintiff again fails to identify any timely, fully appealed grievance regarding
Liu’s alleged failure to provide reasonable accommodations to Plaintiff in violation
of the ADA and Rehabilitation Act; Liu’s alleged violation of the Eighth
Amendment by cancelling accommodations that Plaintiff was receiving; or Liu’s
alleged sending of a slanderous email in violation of the Federal Torts Claims Act.
The Court agrees that Plaintiff has not shown that he complied with the applicable
deadline for filing a Step II grievance for any of the relevant grievances involving
Liu (JCF-15-01-189-12I, JCF-15-01-189-28E, or JCF-2015-03-0627-12D4), and
there are no other grievances regarding the aforementioned claims at issue.
Plaintiff now also argues that the claims against Liu were properly exhausted
under the continuing violation theory, relying primarily on Ellis v. Vadlamudi, 568
F. Supp. 2d 778 (E.D. Mich. 2008). In Ellis, the plaintiff filed a single grievance in
2006 identifying the five defendants and complaining of ongoing pain that dated
back to 2004. Id. at 780. The court found it important that the plaintiff was
complaining of an ongoing problem instead of a discrete incident. Id. at 781. The
court distinguished the plaintiff’s ongoing pain from an acute medical condition or
“a denial of certain privileges,” for which “the time of the failure to treat (and
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therefore the time of the Eighth Amendment violation) can be determined with
some precision, and therefore the time limit for filing a grievance can be readily
established.”

Id. at 783-84.

On the other hand, the court observed that

indifference to an ongoing chronic condition “and the resulting pain suffered by
the prisoner that equates to the infliction of punishment,” may not become manifest
until some time passes. Id. at 783. The court held that, in the case of an ongoing
chronic medical condition, “a grievance that identifies the persistent failure to
address that condition must be considered timely as long as the prison officials
retain the power to do something about it.” Id. at 784.
Further, in Ellis, the court noted that prison officials had addressed the
substance of the plaintiff’s single grievance and found merit in the plaintiff’s
complaint of delayed or improper medical treatment, which provided another basis
to find that the plaintiff had properly exhausted his remedies. Id. at 785.
The Court finds that the continuing violation theory does not apply to the
claims against Liu that are at issue here for several reasons. First, Plaintiff in this
case complained of discrete incidents (cancellation of extra pillow, extra blanket,
ice detail, snack bag detail, chow after med lines, and some vitals checks on or
about 01/16/15; and sending of an e-mail on or about 02/12/15) for which the time
of the alleged violations and the time limits for filing the grievances were readily

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identifiable. Unlike in Ellis, nothing in this record indicates that cancellation of
such medical orders or sending of such e-mails were ongoing problems.
Second, Plaintiff in this case filed timely Step 1 grievances, and it was his
appeals which were denied as untimely. This is unlike a situation where a Step I
grievance complains of an ongoing chronic condition and inappropriate treatment
dating far back in time as in Ellis. The fact that Plaintiff filed timely Step 1
grievances against Liu also further bolsters the previous conclusion that the time
limits for filing these grievances were readily identifiable and, in fact,
appropriately identified by Plaintiff at Step I.
The Court also notes that, unlike in Ellis, prison officials here did not find
merit in Plaintiff’s grievances discussed above. And unlike in Ellis, they did not
excuse Plaintiff’s delays in filing the Step II appeals by addressing the substance of
these untimely appeals.
In support of his position, Plaintiff points to a “starting grievance,” number
JCF-140-01-0059-12DI, which was completely exhausted through all three steps of
the grievance process. However, this grievance does not name Defendant Liu, nor
does it in any way relate to failure to provide reasonable accommodations,
cancelling accommodations/medical orders, or any slander. See Doc # 46-1, Pg ID
201; Vartinelli v. Cady, No. 07-12388, 2009 WL 706083, at *3 (E.D. Mich. Mar.
13, 2009) (“Vartinelli also argues that the Magistrate Judge erred because his
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claims relate to an ongoing medical condition. . . . The Court finds that Ellis
provides no basis to reject the R & R. It addresses the timeliness of a grievance
raising an ongoing medical condition, not the requirement to name defendants.”)
Plaintiff’s first Objection to the Report and Recommendation is overruled.
The Court agrees with the Magistrate Judge that Plaintiff failed to properly exhaust
his administrative remedies as to Liu’s alleged failure to provide reasonable
accommodations to Plaintiff in violation of the ADA and Rehabilitation Act; Liu’s
alleged violation of the Eighth Amendment by cancelling accommodations that
Plaintiff was receiving; and Liu’s alleged sending of a slanderous email in
violation of the Federal Torts Claims Act. The Court will grant partial summary
judgment in Liu’s favor.
B.

Second Objection- Defendant Tan

Plaintiff’s second objection is to the Magistrate Judge’s conclusions as to
Defendant Tan. Plaintiff argues that his claim against Tan was properly exhausted
through grievance number JCF-140-01-0059-12DI, which was denied on the
merits at Steps I, II, and III.
As accurately set forth by the Magistrate Judge,
[t]he Complaint asserts that Plaintiff was discharged from Allegiance
Hospital on January 13, 2014, with a diagnosis of, among other
things, gastrointestinal bleeding, secondary to ulcerative colitis,
whereupon Plaintiff was placed under the care of Dr. Tan at Duane
Waters Health. (DE 1 at ¶¶ 25-29.) According to the Complaint, Dr.
Tan noted that Plaintiff’s ulcerative colitis was not highly active and
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thus stopped Plaintiff’s prescription for steroids on/about January 17,
2014. (Id. at ¶¶ 29-30.) The sole claim against Tan asserts that he
was deliberately indifferent to Plaintiff’s medical needs, in violation
of the Eight Amendment, by “discontinuing certain medications
prescribed by an outside doctor, causing Plaintiff’s already serious
medical need to become worse than before.” (DE 1 at ¶ 172)
(capitalization standardized).
As Defendants note in their motion, Plaintiff did not file a grievance
pertaining to Tan’s decision to change Plaintiff’s medications. In
early January 2014, Plaintiff filed a grievance against “all JCF health
Care staff, H.U.M., Doctors, Nurses, and Corizon” listing an
occurrence date of December 30, 2013 and stating that he needed to
see a specialist for ongoing “stomach, rectal, and anal pain(s) . . . .”
(DE 26-1 at 23.) That grievance, number JCF 2014-01-0059-12DI,
was denied at Step I in late January 2014 because Plaintiff had been
seen by a gastroenterologist. (Id. at 24.) The grievance was also
denied at Steps II and III later in 2014. (Id. at 18, 21.) Notably,
however, that grievance does not specifically mention Tan and
pertains to conduct predating when the Complaint alleges that he
began treating Plaintiff.
(Doc # 40, Pg ID 501-02)
In his Objection, Plaintiff asserts that grievance number JCF-140-01-005912DI was a general grievance that complained of an ongoing problem. He notes
that he could not name Defendant Tan because he wrote this grievance on January
3, 2014, before Tan treated him. He claims he could not have filed another
grievance pertaining to Tan’s decision to change Plaintiff’s medications because he
did not have time to regroup; and because grievance number JCF-140-01-005912DI was still pending, and another grievance would have been a duplicate
grievance about the same issue.
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Again, grievance number JCF-140-01-0059-12DI, dated January 3, 2014,
pertains to repeated requests to see a specialist for stomach, rectal, and anal pains.
This grievance was addressed shortly thereafter when Plaintiff had a colonoscopy
on/about January 11, 2014 and was seen by a gastroenterologist, before the
Complaint alleges that Tan discontinued Plaintiff’s prescription for steroids on
January 17, 2014. Grievance number JCF-140-01-0059-12DI does not mention
any discontinuance of any medication or identify this as an ongoing problem; it
does not name Defendant Tan; and it predates when the Complaint alleges that Tan
treated Plaintiff. Plaintiff provides no valid or specific reason why he could not
have filed a grievance (even if somewhat delayed) pertaining to Tan’s decision to
discontinue Plaintiff’s prescription for steroids. Plaintiff does not explain how
such a grievance would have been duplicative when it would have pertained to a
different issue, on a different date, against a different doctor at Duane Waters
Health.
Accordingly,

Plaintiff’s

second

Objection

to

the

Report

and

Recommendation is overruled. The Court agrees with the Magistrate Judge that
Plaintiff failed to properly exhaust his administrative remedies as to his claim
against Tan. The Court will grant summary judgment in Tan’s favor, and the
Court will dismiss Tan from this action.

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C.

Third Objection- Defendants Bergman and Coleman

Plaintiff’s third objection is to the Magistrate Judge’s conclusions as to
Defendants Bergman and Coleman.

Plaintiff argues that his claims against

Bergman and Coleman were properly exhausted through grievance number JCF140-01-0059-12DI, which was denied on the merits at Steps I, II, and III.
As accurately set forth by the Magistrate Judge,
Plaintiff contends in relevant part that in early January 2014 (the exact
date is difficult to discern from the Complaint) Drs. Bergman and/or
Coleman sent him from Allegiance Hospital to Duane Waters Health
for an emergency colonoscopy. However, Duane Waters did not have
the capability to perform that procedure, so Plaintiff was returned to
prison without receiving treatment. (DE 1 at 5-6, ¶ 1-4.) Plaintiff also
alleges that Dr. Bergman denied Defendant Liu’s request for Plaintiff
to receive a colonoscopy in August 2014. (Id. at ¶ 46.)
For his causes of action against Bergman and Coleman, Plaintiff
asserts in paragraphs 169-170 of his Complaint that Bergman, along
with Defendant Liu, “showed negligence by not properly address [sic]
Plaintiff’s medical needs in a timely fashion[,] causing Plaintiff’s
serious medical issues to become worse and now permanent, showing
deliberate indifference[,] an Eighth Amendment violation.” (Id. at 3839.)
Paragraph 174 contends Dr. Coleman was deliberately
indifferent, in violation of the Eighth Amendment, by “denying any
type of medical treatment when Plaintiff’s [sic] was sent to an outside
hospital emergency room, leaving Plaintiff in severe pain.” (Id. at
39.)
(Doc # 40, Pg ID 504)
Again, grievance number JCF-140-01-0059-12DI, written on January 3,
2014 and identifying an incident date of December 30, 2013, pertains to repeated
requests to see a specialist for stomach, rectal, and anal pains. This grievance does
12

not name Defendants Bergman or Coleman, and it does not mention their alleged
decision to transfer Plaintiff from Allegiance to Duane Waters Health for a
colonoscopy. The conduct complained of in this grievance took place on or before
December 2013 and predates when the Complaint alleges that Bergman and
Coleman made the transfer decision on/about January 7, 2014. It also predates
when the Complaint alleges that Bergman denied a request for another
colonoscopy in August 2014. The Court agrees with the Magistrate Judge that the
subject matter of grievance number JCF-140-01-0059-12DI does not facially
pertain to any factual allegations in the Complaint against Bergman or Coleman.
Plaintiff seems to argue that he had no way of knowing at the time that
Bergman or Coleman were responsible for these alleged decisions. However,
Plaintiff provides no valid or specific reason why he could not have filed
grievances (even if somewhat delayed, and even if he did not know the specific
names of doctors at Allegiance) pertaining to the January 2014 decision to transfer
him from Allegiance to Duane Waters Health for a colonoscopy, or the August
2014 denial of another colonoscopy request.
Accordingly, Plaintiff’s third Objection to the Report and Recommendation
is overruled. The Court agrees with the Magistrate Judge that Plaintiff failed to
properly exhaust his administrative remedies as to his claims against Bergman and

13

Coleman. The Court will grant summary judgment in Bergman and Coleman’s
favor, and the Court will dismiss Bergman and Coleman from this action.
IV.

CONCLUSION
After review of the Magistrate Judge’s Report and Recommendation, the

Court finds that his findings and conclusions are correct. The Court agrees with
the Magistrate Judge that Defendants’ Motion for Partial Judgment on the
Pleadings (Doc # 26) is properly construed as a motion for partial summary
judgment to resolve the question of whether Plaintiff failed to exhaust his
administrative remedies, an affirmative defense raised by Defendants.
The Court further agrees with the Magistrate Judge that Plaintiff failed to
properly exhaust his administrative remedies as to his claims against Tan,
Coleman, Bergman, and Carlson, and some of his claims against Liu as discussed
above. The Court will grant summary judgment in their favor. The Court will
dismiss Tan, Coleman, Bergman, and Carlson from this action.
The Court, however, will not dismiss the claim against Xue and will deny
her motion for summary judgment. The Court agrees with the Magistrate Judge
that Plaintiff’s grievance against her appears to have been properly exhausted.
For the reasons set forth above,
IT IS HEREBY ORDERED that Plaintiff Dwayne Hoosier’s Motion for
Reconsideration (Doc # 44) is GRANTED to the extent that this Court’s previous
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order found that no timely objections to the Report and Recommendation had been
filed.
IT IS FURTHER ORDERED that Magistrate  Judge Anthony P. Patti’s
Report and Recommendation (Doc # 40) is ACCEPTED and ADOPTED as this
Court’s findings of fact and conclusions of law.
IT IS FURTHER ORDERED that the construed Motion for Partial Summary
Judgment filed by Defendants Wendy Liu, Shi-Yu Tan, Rickey Coleman, and
Steven Bergman (Doc # 26) is GRANTED.
IT IS FURTHER ORDERED that the Motion for Summary Judgment filed
by Defendants Vicki Carlson and Renyu Xue (Doc # 35) is GRANTED IN PART
as to Defendant Vicki Carlson, and DENIED IN PART as to Defendant Renyu
Xue.
IT IS FURTHER ORDERED that Defendants Shi-Yu Tan, Rickey Coleman,
Steven Bergman, and Vicki Carlson are DISMISSED from this action. Defendants
Wendy Liu, Renyu Xue, Karen Rhodes, William Borgerding, Badawi Abdellatif,
Kim Farris, and Jane Doe remain.

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IT IS FURTHER ORDERED that this matter is referred back to Magistrate
Judge Anthony P. Patti as to the remaining Defendants for all pretrial 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).

s/Denise Page Hood
DENISE PAGE HOOD
Chief U.S. District Judge

DATED: June 6, 2017

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 June 6, 2017.

s/Teresa McGovern
Case Manager Generalist 

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