Burley v. Abedellatif et al

Filing 78

ORDER adopting 61 Report and Recommendation; Overruling 63 Objections and granting in part and denying in part 55 Motion to Dismiss. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
EDWARD BURLEY,

Case No. 16-12256
SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW

Plaintiff,
v.
BADAWI ABDELLATIF, ET AL.,

U.S. MAGISTRATE JUDGE
DAVID R. GRAND

Defendants.
/
ORDER ADOPTING REPORT AND RECOMMENDATION [61]; OVERRULING
DEFENDANT’S OBJECTION [63]; OVERRULING PLAINTIFF’S OBJECTIONS [71];
AND GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO
DISMISS [55]
Plaintiff Edward Burley filed the instant prisoner civil rights action on June
17, 2016. Defendants Corizon Health, Inc., Badawi Abdellatif, M.D., and Kim
Farris, P.A., filed a Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) [55] on
March 27, 2017. Plaintiff filed a Response [57] on April 21, 2017. Defendants filed
a Reply [58] on May 8, 2017.
On January 26, 2018, the Magistrate Judge issued a Report and
Recommendation (“R&R”) [61] recommending that the Court grant in part and
deny in part Defendants’ Motion to Dismiss.
Defendant Abdellatif filed an Objection [63] to the R&R on February 2,
2018. Plaintiff filed a Response to Objection [65] on February 16, 2018. Defendant
filed a Reply [68] on February 21, 2018. Plaintiff filed Objections [71] to the R&R
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on March 2, 2018. Plaintiff filed a Cross-Reply [73] on March 5, 2018. Defendants
filed a Response [77] on March 12, 2018.
For the reasons stated below, the R&R [61] is ADOPTED; Defendant’s
Objection [63] is OVERRULED; Plaintiff’s Objections [71] are OVERRULED;
and Defendants’ Motion to Dismiss [55] is GRANTED in part and DENIED in
part.
FACTUAL BACKGROUND
The Court adopts the facts of this case as set forth in the R&R:
At all times relevant to this action, Burley was an inmate at the
Macomb Correctional Facility (“MRF”), a prison operated by
the Michigan Department of Corrections (“MDOC”). Burley’s
claims center around a June 23, 2015 chronic care visit he had
with Dr. Abdellatif regarding his complaints of heel spur pain
and acid reflux. Burley alleges that Dr. Abdellatif took his
vitals, but then, after Burley mentioned that he “was on the
Vegan line and was Jewish,” Abdellatif terminated the
appointment, canceled various accommodations that had been
previously ordered for Burley, and refused to prescribe Burley
pain medicine.
Burley also alleges that he advised PA Farris “that Abdellatif
had denied [him] medical care,” and that she “assured [him]
that [he] would be treated for [his] foot problems and acid
reflux.” However, Farris allegedly, told other nurses not to
provide Burley with accommodations for his “asthma and other
breathing complications,” denied him “a medically necessary
Hearing Aid for a period of time,” and also failed to treat his
injured back.
After pursuing internal grievances against Abdellatif, Burley
filed the instant suit on June 17, 2016. Construing Burley’s
complaint liberally, he alleges the following claims:
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1) deliberate indifference to his serious medical needs in
violation of the Eighth Amendment;
2) retaliation in violation of the First Amendment;
3) violation of his First Amendment right to freedom of
religion;
4) deprivation of property in violation of the Fifth
Amendment stemming from the loss of his foot bath and
“bottom floor” and “bottom bunk” privileges;
5) violation of his Fourteenth Amendment rights under the
Equal Protection Clause in denying or preventing him from
receiving medical treatment either because he is Jewish or
because he is hearing impaired, or both;
6) conspiracy between Defendants and “other medical
personnel” to deny his medical care, presumably in violation
of 42 U.S.C. § 1985;
7) violations of the Americans
(“ADA”) 42 U.S.C. § 12132;

with

Disabilities

Act

8) state law claims of gross negligence and intentional
infliction of emotional distress (“IIED”).
[Dkt. #61 at 2-4] (internal citations omitted).
The R&R [61] recommends that the Court dismiss all claims against
Defendants Corizon and Farris and dismiss the ADA, Conspiracy, First
Amendment Free Exercise, and Fifth Amendment and Due Process claims against
Defendant Abdellatif.

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STANDARD OF REVIEW
This Court reviews de novo the portions of the R&R to which objections
have been filed. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The Court “may
accept, reject, or modify, in whole or in part, the findings or recommendations
made by the magistrate judge.” Id.
ANALYSIS
I. Defendant Abdellatif’s Objection No. 1: A physical injury is required
for an Eighth Amendment deliberate indifference claim under 42 U.S.C.
§ 1983.
42 U.S.C. § 1997e(e) provides:
No Federal civil action may be brought by a prisoner confined
in a jail, prison, or other correctional facility, for mental or
emotional injury suffered while in custody without a prior
showing of physical injury or the commission of a sexual act
(as defined in section 2246 of Title 18).
To sustain an Eighth Amendment claim, the injury alleged need not be
particularly serious; but, it must be more than de minimis. Richmond v. Settles, 450
F. App’x 448, 453 (6th Cir. 2011).
Defendant Abdellatif maintains that Plaintiff must allege a physical injury in
order to proceed with his Eighth Amendment deliberate indifference claim. See
Harden-Bey v. Rutter, 524 F.3d 789, 795 (6th Cir. 2008) (holding that the plaintiff
could not bring an Eighth Amendment claim for placement in segregation because
he did not allege a physical injury.). Defendant argues that the Court should
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dismiss the deliberate indifference claim because Plaintiff has failed to allege a
physical injury. Alternatively, Defendant argues that dismissal is warranted
because the allegations in the Complaint do not rise to the level of de minimis
injury.
As noted in the R&R, “the plain language of [§ 1997e(e)] does not bar
claims for constitutional injury that do not also involve physical injury” and “says
nothing about claims brought to redress constitutional injuries, which are distinct
from mental and emotional injuries.” King v. Zamiara, 788 F.3d 207, 213 (6th Cir.
2015) (internal citation omitted). Contrary to Defendant’s assertion, the Sixth
Circuit has not established whether a prisoner who properly alleges an Eighth
Amendment deliberate indifference claim “must also show that a physical injury
resulted from that violation.” Richardson v. Bauman, No. 2:12-CV-435, 2015 WL
5347557, at *2 (W.D. Mich. Sept. 14, 2015).
Nevertheless, Plaintiff’s repeated allegations of physical pain suffered as a
result of Defendant’s alleged deliberate indifference constitute more than de
minimis physical injuries for purposes of § 1997e(e). See, e.g., Rhinehart v.
Edelman, 2016 WL 2733760, at *12 (E.D. Mich. Apr. 7, 2016), report and
recommendation adopted, No. 2:11-CV-11254, 2016 WL 7209287 (E.D. Mich.
Dec. 13, 2016) (finding that alleged injuries of pain and portal hypertension were
not de minimis); Campbell v. Gause, 2011 WL 825016, at *7 (E.D. Mich. Feb. 1,
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2011), report and recommendation adopted, No. 2:10-CV-11371, 2011 WL
837737 (E.D. Mich. Mar. 4, 2011) (explaining that “Plaintiff’s statement that he
experienced chest pains, spiked blood pressure, broncospasms, migraine
headaches, and dizziness after Defendants confiscated his prescription medicine
states both a ‘physical injury’ and the deliberate indifference required to sustain his
Eighth Amendment claim.”).
This is not a case in which the plaintiff has exclusively alleged emotional
injury, such fear and anxiety. See Rouse v. Caruso, 2014 WL 7877155, at *9 (E.D.
Mich. Aug. 5, 2014), report and recommendation adopted, No. 06-CV-10961,
2015 WL 632025 (E.D. Mich. Feb. 13, 2015). At this early stage in the
proceedings, Plaintiff’s allegations of “heel pains, stomach pains, and other pains,”
and “obvious pain and suffering for a protracted period of time” [Dkt. #1 at 7], are
more than de minimis and therefore satisfy any physical injury requirement.
Accordingly, Defendant’s objection is overruled.
II. Plaintiff’s Objections to the R&R
A. Objection No. 1: A physical injury is not required for an Eighth
Amendment Deliberate Indifference Claim under 42 U.S.C. § 1983.
Should this Court find that King applies only to First Amendment
claims, Plaintiff objects to the Court not finding I plead an injury as
the complaint clearly alleges that I was forced to endure
“excruciating” pain due to Abdellaif [sic] refusing to treat me based
on religious animus.

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Plaintiff’s objection misconstrues the R&R’s recommendation. The R&R
provides that dismissal on the basis of Plaintiff’s failure to plead a physical injury
is unwarranted given that Plaintiff alleged distinct constitutional injuries and
excruciating pain and suffering. [Dkt. #61 at 7].
In their Response [77], Defendants rely on Powell v. Washington, No. 171262, 2017 WL 6422354, at *5 (6th Cir. Dec. 18, 2017), to repeat their argument
that pleading a physical injury is required for an Eighth Amendment deliberate
indifference claim. However, in Powell, the plaintiff solely alleged psychological
injury suffered from his detention in segregation. Id. As explained above, in this
case, even if Plaintiff were subject to the physical injury requirement for his
deliberate indifference claim, his allegations of physical pain are sufficient to
satisfy this hurdle on a motion to dismiss. Accordingly, Plaintiff’s objection is
overruled.
B. Objection No. 2: Plaintiff objects to the Magistrate’s holding of strict
pleading requirement in disposing constitutional claims against
Corizon, and not liberally construing Plaintiff’s complaint under the
law, and holding Plaintiff to a heightened standard of pleading as
that of a licensed attorney.
Plaintiff objects to the R&R’s recommendation to dismiss all claims against
Defendant Corizon because he failed to allege facts to establish that Corizon had a
policy, custom, or practice that violated his constitutional rights.

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In his Complaint, Plaintiff summarily alleges that Corizon has a practice,
custom, and policy “to discriminate against persons with hearing impairments” and
“of not providing pain medications to indigent prisoners.” [Dkt. #1 at 6-7].
However, Plaintiff fails to allege any articulable facts to support these conclusory
assertions. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
It is undisputed that Plaintiff, a pro se litigant, is entitled to leniency. But,
the leniency afforded to Plaintiff “is not boundless” and Plaintiff must still satisfy
“basic pleading standards.” Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004)
(internal citation omitted). Thus, the R&R correctly notes that Plaintiff is entitled
to some leniency, but “is still required to be aware of, and abide by, the rules and
procedures of this Court.” [Dkt. #61 at 11]. In recommending dismissal of the
claims against Corizon, the Magistrate Judge did not impose a heightened pleading
standard, but rather, appropriately required Plaintiff to plead sufficient facts to
support a plausible claim for relief.
Moreover, the R&R clarifies that the Magistrate Judge considered Plaintiff’s
pro se status upon its review of the Complaint. Nevertheless, the R&R
recommends dismissal because Plaintiff fails to plead any facts to support his
allegation that Corizon had a policy that caused Defendant Abdellatif to refuse
medical treatment on the basis of Plaintiff’s religion. See Starcher v. Corr. Med.
Sys., Inc., 7 F. App’x 459, 465 (6th Cir. 2001) (noting that the medical provider’s
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liability “must also be premised on some policy that caused a deprivation of
Starcher’s Eighth Amendment rights.”). Notwithstanding its liberal construction of
the Complaint, the Court is not required “to conjure allegations on [Plaintiff’s]
behalf.” Martin, 391 F.3d at 714. Plaintiff’s objection is overruled.
CONCLUSION
For the reasons stated above,
IT IS ORDERED that the R&R [61] is ADOPTED.
IT IS FURTHER ORDERED that Defendant’s Objection [63] is
OVERRULED.
IT IS FURTHER ORDERED that Plaintiff’s Objections [71] are
OVERRULED.
IS IT FURTHER ORDERED that Defendants’ Motion to Dismiss [55] is
GRANTED in part and DENIED in part.
SO ORDERED.

Dated: March 19, 2018

s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge

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