Burley v. Michigan Department of Corrections et al

Filing 162

ORDER accepting 157 Report and Recommendation, denying defendant's 142 Motion to Strike, granting 130 defendant's Motion for Summary Judgment and denying defendants' request for sanctions. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

EDWARD BURLEY, #502426,
Plaintiff,
Case No. 16-CV-10712
HON. GEORGE CARAM STEEH

vs.
MICHIGAN DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.
_______________________________/

ORDER ACCEPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION [DOC. 157], DENYING
DEFENDANTS’ MOTION TO STRIKE [ECF NO. 142], GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [ECF NO. 130]
AND DENYING DEFENDANTS’ REQUEST FOR SANCTIONS
Plaintiff Edward Burley, an inmate with a hearing impairment, filed a
lawsuit against the Michigan Department of Corrections (“MDOC”), as well
as individual defendants, alleging violations of various constitutional and
statutory provisions. The matter is presently before the court on two
motions by defendants Roger Gerlack, M.D., Brenden Sherry, P.A. and
Scott Holmes, M.D. Both motions were referred to Magistrate Judge
Patricia Morris who issued a report and recommendation on January 25,
2019. (ECF NO. 157).
The first motion asks the court to strike plaintiff’s recent affidavit as a
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sham. (ECF NO. 142). The affidavit was filed in support of plaintiff’s
response to defendants’ motion for summary judgment. (ECF NO. 139-4).
The magistrate judge recommends that the court deny the motion to strike
because the affidavit does not contradict plaintiff’s previous testimony and
therefore is not a sham affidavit. There are no objections to this
recommendation. The court agrees with the reasons given by the
magistrate judge in her report and recommendation, adopts her
recommendation and DENIES defendants’ motion to strike plaintiff’s
affidavit.
The second motion before the court is defendants’ motion for
summary judgment. After the motion was filed, the parties stipulated to
dismiss defendants Gerlack and Sherry from the litigation. An order
dismissing those two defendants with prejudice was entered on October 9,
2018. (ECF NO. 147). Defendants requested that the court order
sanctions because the plaintiff abandoned his claims against defendants
Gerlach and Sherry despite refusing to concur in their motion for summary
judgment. (ECF NO. 141, PageID 1798 n.1). The magistrate judge
recommends denying sanctions and this court agrees.
This leaves Scott Holmes as the only remaining defendant for
purposes of the motion for summary judgment at issue. Magistrate Judge

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Morris’s report and recommendation concludes that the claims against
Holmes are either unexhausted or lack merit and therefore the court should
grant Holmes’s motion for summary judgment and dismiss him from the
case.
Plaintiff filed timely objections to the report and recommendation.
Plaintiff has stated three specific objections to which defendant responded
and plaintiff filed a reply brief. Each objection will be addressed by the
court in turn.
I.

Exhaustion of Remedies
Inmates bringing claims under 42 U.S.C. § 1983 must first exhaust

their administrative remedies by complying with the prison grievance
process. MDOC’s grievance procedure provides that if the inmate’s initial
attempt to resolve the issue with the person involved is unsuccessful, there
is a three-step grievance procedure available. The procedure sets out a
time frame and the information that needs to be included in each grievance:
The issues should be stated briefly but concisely. Information
provided is to be limited to the facts involving the issue being
grieved (i.e., who, what, when, where, why, how). Dates,
times, places and names of all those involved in the issue being
grieved are to be included.
MDOC PD 03.02.130(R).
Plaintiff filed his Step I grievance on January 13, 2014. He names

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Dr. Holmes, among others, as having committed “violations of Title II of the
ADA, [and] Medical and Special Accommodations Notices.” He states that
he has profound hearing loss in both ears, is having a difficult time
functioning in the institution because of his hearing loss (“can’t hear PA,
officer’s orders, etc, and can’t hear the maintenance rover’s”). He further
complains that the named health professionals are not qualified to assist
him regarding his inability to hear and his need for an additional hearing
aid. “They also have denied me reasonable accommodations for my
hearing impairment. I have a Special Accommodation for ‘communication
assistant,’ however, medical personal [sic] listed above has [sic] continually
refused to afford me this accommodation.” MDOC rejected plaintiff’s claim
at Step I, noting that plaintiff’s hearing aid was recently repaired, and he
had an upcoming appointment with his medical provider to discuss these
issues.
Plaintiff filed his Step II grievance a day before Holmes revoked the
special accommodation of access to a TTY.1 This grievance does not
name Holmes but does complain that plaintiff needs another hearing aid

1

“A teletypewriter (“TTY”), also known as a telecommunication device for the deaf
(“TDD”), is a telephone equipped with a keyboard and a display screen. TTY devices
enable hearing impaired individuals to communicate over telephone lines by sending
and receiving typed messages.” Homes v. Godinez, 311 F.R.D. 177, 196 (N.D. Ill.
2015).
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and “reasonable accommodation.” Further the grievance states, “The
MDOC has a blanket policy of denying [the] hearing impaired 2 hearing
aids due to budget concerns.” This grievance was rejected because
plaintiff was being treated by a medical provider and the grievance
amounted to a disagreement about treatment.
At Step III, plaintiff stated he had “been discriminated against by Dr.
Holmes for my hearing impairment, atypical hardship, and failure to afford
me a reasonable accommodation, and that Homes has a “propensity to
discriminate against persons with disabilities.” (ECF NO. 65-3, page 175).
MDOC denied the grievance for being a disagreement with the judgment of
his physician.
The magistrate judge recommends that plaintiff’s failure to name
Holmes at Step II does not prevent the court from proceeding to the merits
because the Step II grievance left no doubt that plaintiff intended to
continue to press the claims made in Step I. Additionally, MDOC
overlooked any deficiency at Step II by considering the claims asserted
against Holmes on the merits.
However, the magistrate judge does find that plaintiff failed to exhaust
his complaint about the cancellation of his special accommodation for a
TTY. Plaintiff filed his Step I and Step II grievances before his February 4,

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2014 appointment with Holmes, where the TTY special accommodation
was revoked. Each of these grievances focuses on the refusal to grant a
second hearing aid. Though they also raise interference with accessing
plaintiff’s special accommodation, the magistrate judge reasons this refers
to a failure to provide an assistant or interpreter. She points out that the
first and second steps could not include the TTY issue because that would
require the grievance to encompass an event that had not yet occurred.
Plaintiff’s Step III grievance, which came after the February 4, 2014
appointment, also refers to a “reasonable accommodation” but does not
specifically identify the termination of his TTY privileges. The magistrate
judge recommends finding that plaintiff properly exhausted claims relating
to the second hearing aid and other communication assistance (i.e., an
interpreter), but not the ending of the TTY accommodation.
Plaintiff argues that MDOC injected the TTY accommodation into the
grievance process itself, so clearly MDOC knew this was part of his
grievance. In fact, the denial of the Step II grievance, which was issued
on February 13, does refer to the February 4 appointment where Holmes
revoked the TTY phone. The denial of the Step II grievance concludes
that the treatment plan adopted by Holmes provided plaintiff with medically
necessary health care services. That treatment plan included

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discontinuing the special accommodation for the TTY phone based on the
evidence available to Holmes. However, noting that the TTY
accommodation was revoked as part of a global treatment plan is not the
same thing as determining whether the revocation was proper. Such
determination was not made precisely because that issue was not raised in
any grievance. The court disagrees with plaintiff’s characterization that
MDOC injected the issue into the grievance process. MDOC was aware
of the revocation because it reviewed Holmes’ treatment notes, but MDOC
did not view it as an issue being disputed in the grievance process.
Plaintiff next argues that Holmes did not challenge the failure to
exhaust administrative remedies as to the TTY revocation in his motion for
summary judgment. Therefore, because the issue was raised sua sponte
by the magistrate judge in the report and recommendation, plaintiff
maintains that he could not have responded to the argument until now.
Defendant refers the court to his motion for summary judgment and reply
brief, wherein he argued that for an inmate to properly exhaust his
administrative remedies he must both name the individuals and “explain[]
their allegedly violative conduct at each of the three grievance steps.”
(ECF NO. 130, PageID 1304; EC NO. 141, PageID 1799). Plaintiff was
therefore on notice that defendant was challenging his failure to exhaust

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the TTY issue in addition to the failure to name him in all three grievance
steps.
The court agrees with the recommendation of the magistrate judge
that plaintiff failed to exhaust his administrative remedies as to the
revocation of his TTY accommodation. The court overrules plaintiff’s
objection and adopts the recommendation that plaintiff has “properly
exhausted claims relating to the second hearing aid and other
communication assistance (perhaps an interpreter), but not the ending of
the TTY accommodation.”
II.

Eighth Amendment Deliberate Indifference2
An Eighth Amendment claim for denial of medical care has objective

and subjective components. Farmer v. Brennan, 511 U.S. 825, 834
(1994). The objective inquiry asks whether the deprivation was
“sufficiently serious,” which a claimant satisfies when his or her condition
“’has been diagnosed by a physician as mandating treatment or . . . is so
obvious that even a lay person would easily recognize the necessity for a
doctor’s attention.’” Blackmore v. Kalamazoo Cty., 390 F.3d 890, 897 (6th

2

The magistrate judge points out that plaintiff’s original complaint does not discuss the
Eighth Amendment or deliberate indifference. The amended complaint proposed some
additions that mention deliberate indifference, but not only were these additions rejected
by the court, they were not directed to Dr. Holmes. Nevertheless, because defendant
Holmes does not argue the complaint fails to state a claim of deliberate indifference, the
magistrate judge addresses the claim under the summary judgment framework.
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Cir. 2004) (citations omitted). Defendant concedes that profound hearing
loss, if untreated, is a serious medical need. Furthermore, the magistrate
judge recognizes that the risks posed in a prison setting by an inability to
hear are patent.
Plaintiff argues that defendant provided inadequate treatment by
withholding a second hearing aid and an accommodation such as an
interpreter or assistant.3 In the context of inadequate care claims, if the
prisoner received adequate treatment, then there is no deliberate
indifference. The law requires an inmate to present medical evidence so a
fact-finder can “evaluate the adequacy of the treatment provided and the
severity of the harm caused by the alleged inadequate treatment.”
Rhinehart v. Scutt, 894 F.3d 721, 737 (6th Cir. 2018). The magistrate
judge found that plaintiff failed to point to medical evidence showing the
necessity of the requested items and verifying the harmful effects of their
absence. The court is not required to go through plaintiff’s medical
records searching for evidence to support his claim. Street v. J.C.
Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989).

Plaintiff does

not direct the court to any evidence demonstrating a serious medical need

3

Plaintiff’s objections focus in large part on the revocation of his TTY special
accommodation. Having found that this issue was waived by plaintiff’s failure to
exhaust, the court does not address it further.
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for a second hearing aid or any other auditory assistance. Therefore, his
claim fails on the objective prong.
The subjective inquiry considers whether the official’s state of mind
was sufficiently culpable; it requires a showing that an official “‘knows of
and disregards an excessive risk to inmate health or safety[.]’”. Harrison v.
Ash, 539 F.3d 510, 518 (6th Cir. 2008) (quoting Farmer, 511 U.S. at 837).
In arguing that defendant relied on information that does not qualify as
medical evidence in refusing to give plaintiff a second hearing aid or an
assistant, plaintiff once again attacks the medical basis for Holmes’
treatment plan. The magistrate judge concludes that Holmes in fact relied
on several factors in forming the treatment plan, including reported
observations of plaintiff using the receiver end of a TTY telephone.
Plaintiff’s argument regarding Holmes’ failure to take the “minimal effort to
verify this ‘outside’ information” amounts to a claim of alleged negligence,
not cruel and unusual punishment. Furthermore, plaintiff does not
address allegations that he refused to undergo testing to confirm his selfreports of needing a second hearing aid.
The magistrate judge addressed two statements identified by plaintiff
as evidence that Holmes was predisposed to reject his request for a
second hearing aid. Holmes testified at his deposition that he attended

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the Feb 4 appointment “to discontinue the special accommodation and that
was it, pretty much.” The magistrate judge points out the accuracy of this
testimony; the appointment was in fact set to discontinue the
accommodation. A January 30 record mentions an upcoming visit “to
address discontinuing communication assistance TDD.” (ECF NO. 153,
PageID 3050). As for Holmes’ comment that he had “to be sensitive to the
corrections officers too,” the magistrate judge found that when considered
in context with all the other evidence, the statement fails to create a
material issue of fact on defendant’s motivations, much less the
reasonability of his medical treatment. For example, Holmes testified
plaintiff requested a second hearing aid to help with balance, but he had
objectively normal balance and one hearing aid sufficed for daily living, so it
a second hearing aid was not medically necessary. (ECF NO. 130-5,
PageID 1359-60). Plaintiff had seen the audiologist in early January
without any changes to his hearing aids, other than repairs. After that
visit, Holmes noted that a hearing assistant was not medically necessary.
The evidence supports the magistrate judge’s recommendation that
Holmes used his medical judgment in formulating a treatment plan.
Plaintiff has not demonstrated that Holmes ignored his hearing needs,
much less that he had a culpable state of mind. The court overrules

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plaintiff’s objection, adopts the recommendation of the magistrate judge
and grants summary judgment to defendant on plaintiff’s Eighth
Amendment claim.
III.

First Amendment Free Speech Rights
Plaintiff’s free speech claim focuses on the substantial burden that

cancelling the TTY accommodation imposed on his First Amendment right
to communicate with the outside world.

The magistrate judge

recommends rejecting plaintiff’s First Amendment free speech claim
because of his failure to exhaust that claim. The court agrees with the
magistrate judge’s recommendation and overrules plaintiff’s objections.
The court grants summary judgment to defendant on plaintiff’s First
Amendment free speech claim.
IV.

Conclusion
The court hereby accepts the magistrate judge’s report and

recommendation denying defendants’ motion to strike and granting
defendant’s motion for summary judgment. Now, therefore,
IT IS HEREBY ORDERED that plaintiff’s objections to the report and
recommendation are OVERRULED.
IT IS HEREBY FURTHER ORDERED that defendants’ motion to
strike plaintiff’s affidavit is DENIED.

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IT IS HEREBY FURTHER ORDERED that defendant’s motion for
summary judgment is GRANTED and defendant Holmes is DISMISSED
from the case.
IT IS HEREBY FURTHER ORDERED that defendants’ request for
sanctions is DENIED.
Dated: March 13, 2019
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
March 13, 2019, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk

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