Griffin v. Malatinsky et al

Filing 27

REPORT AND RECOMMENDATION recommending GRANTING Defendants' 21 MOTION to Dismiss or in the alternative MOTION for Summary Judgment filed by William Malatinsky, Aurelio Rosario, AND ORDER DENYING AS MOOT Defendants' 18 MOTION for Extension of Time to File Answer re 1 Complaint filed by Aurelio Rosario--Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
NEVIN GRIFFIN,
Plaintiff,
v.

Case No. 2:17-cv-12204
District Judge Mark A. Goldsmith
Magistrate Judge Anthony P. Patti

WILLIAM MALATINSKY,
MD, and AURELIO
ROSARIO,
Defendants.
___________________________________/
REPORT AND RECOMMENDATION TO GRANT DEFENDANTS’
MOTION TO DISMISS OR, IN THE ALTERNATIVE MOTION FOR
SUMMARY JUDGMENT (DE 21) AND ORDER DENYING AS MOOT
DEFENDANTS’ MOTION FOR EXTENSION OF TIME TO FILE AN
ANSWER (DE 18)
I.

RECOMMENDATION: The Court should grant Defendants’ motion to

dismiss or, in the alternative, motion for summary judgment. (DE 21.) In addition,
Defendants’ motion to extend the time to answer (DE 18) is denied as moot.
II.

REPORT
A.

Background

Plaintiff, Nevin Griffin, is an inmate currently incarcerated at the U.S.
Penitentiary in Terre Haute, Indiana (USP Terre Haute) who is proceeding in
forma pauperis. Plaintiff brings this Bivens action against Defendants William

Malatinsky, M.D. and Aurelio Rosario, alleging that they were deliberately
indifferent to his serious medical needs in violation of the Eighth Amendment. Dr.
Malatinsky was the clinical director at FCI Milan during the times relevant to this
complaint, and Mr. Rosario was employed at FCI Milan as a Mid-Level
Practitioner (MLP), which Defendants explain is analogous to a physician
assistant.
According to Plaintiff’s complaint, prior to being incarcerated, he was
suffering from a pulmonary embolism and acute recurrent thromboembolic disease
and was taking a prescription blood thinner, Warfarin, among other medications,
since “at least” December 4, 2012. (DE 1, ¶ 5.) He continued to receive Warfarin
after his incarceration at FCI Milan starting on November 22, 2013, until
December 2013, when Dr. Malatinsky discontinued the prescription. (Id.)
According to Plaintiff’s medical records, he reported to Dr. Malatinsky on
December 3, 2013 that he “was suppose[d] to take Coumadin for 3-6 months” and
“[h]e is waiting for someone to stop it.” (DE 21-3 at 12.) On December 4, 2013,
Dr. Malatinsky discontinued Plaintiff’s Coumadin (Warfarin) prescription because
he had been on it for 12 months, and the Federal Bureau of Prisons (BOP) Clinical
Practice Guideline, Anticoagulation Protocol, called for discontinuing the
medication after three months for a patient with a history of pulmonary embolism.
(DE 21-3 at 11; DE 21-4, ¶ 6; DE 21-5.)
2 

Plaintiff alleges, contrary to his medical records, that he objected to
discontinuing the medication, asserting that medical specialists had warned him not
to discontinue the drug without tests, and that Dr. Malatinsky stated “that he did
not care what the specialists had said, and ‘To Hell with Them,’ he was
discontinuing the Warfarin.” (DE 1, ¶ 5.) Plaintiff contends that Dr. Malatinsky
stated that that Warfarin was “too expensive” and when Plaintiff continued to
protest, he ordered Plaintiff to leave his office. (Id.) Plaintiff’s medical records
show that he continued to be evaluated and treated by various physicians, including
Dr. Malatinsky, and that he did not report any issues related to his pulmonary
embolism or other complications regarding discontinuance of Warfarin. (DE 21-3
at 1-10; DE 21-6 at 49-50.)
Plaintiff contends that approximately 15 months later, on March 24, 2015,
upon awaking in his cell, he began to suffer from severe chest pain with shortness
of breath, sweating and other “associated symptoms.” (DE 1, ¶ 6.) He was taken
to the FCI Milan medical department where he was examined by Rosario, who
then ordered that Plaintiff be returned to his cell because he could discern nothing
wrong with him. (Id.) Plaintiff asserts that he collapsed after returning to his cell
and was returned to the medical department, examined again by Rosario, and then
Dr. Wilson directed that Plaintiff be taken to a hospital immediately. (Id. ¶ 7.)
Plaintiff asserts that he was diagnosed with a heart attack, saddle embolism and
3 

acute recurrent thromboembolic disease, and admitted for several days of in-patient
treatment in the cardiac intensive care unit. (Id. ¶ 8.)
Plaintiff claims that Defendants exhibited deliberate indifference in violation
of the Eighth Amendment to the U.S. Constitution “by ignoring the opinion of
medical specialists who issued warnings against discontinuing Warfarin without
undergoing prior medical testing” and in “refusing to treat the symptoms exhibited
by the plaintiff on March 24, 2015[.]” (DE 1, ¶¶ 10-11.) Plaintiff asserts that he is
now permanently disabled from returning to his “normal occupation,” that his
lifespan has been shortened, and that he is now required to take medication “for the
remainder of his life due to suffering the saddle embolism,” all because Dr.
Malatinsky discontinued his prescription for Warfarin. (Id. ¶¶ 9, 12.) He seeks an
award of $25 million in compensatory damages, as well as punitive damages and
“any and other relief to which he may appear entitled, including costs, and
interest.” (Id. ¶¶ 13-15.)
B.

Defendants’ Motion to Dismiss or, in the Alternative, Motion for
Summary Judgment

On January 12, 2018, Defendants filed a motion to dismiss or, in the
alternative, motion for summary judgment, arguing that Plaintiff failed to exhaust
his administrative remedies for any claims against Defendant Rosario. Defendants
further argue that Plaintiff’s allegations that Dr. Malatinsky discontinued Warfarin
and that Rosario failed to identify symptoms of a saddle embolism and heart attack
4 

do not satisfy the subjective component of an Eighth Amendment deliberate
indifference claim. Finally, Defendants contend that Plaintiff’s Bivens claims fail
because Defendants are entitled to qualified immunity. (DE 21.)
On February 26, 2018, Plaintiff filed a response in opposition to Defendants’
motion, supported by his declaration. (DE 25.) Plaintiff’s response brief primarily
cites to or quotes case law regarding Eighth Amendment deliberate indifference
claims, but fails to apply that law to the facts of this case or otherwise
substantively address the grounds for the pending motion. He generally asserts
that Defendants’ motion is premature “at this stage of the proceedings,” that
Defendants “failed to provide [him] with the patent [sic] care to which the situation
and facts demanded” and “[t]here was no room for disagreement as to the proper
course of treatment amongst physicians,” and that the complaint “adequately
alleges that the defendants violated known constitutional rights of the plaintiff[.]”
He further argues that exhaustion of administration is excused as to his claims
against Rosario because Defendants “and/or the staff at the prison” interfered with
his ability to file a grievance against Rosario.
Defendants filed a reply brief in support of their motion on March 12, 2013.
(DE 26.) Defendants argue that Plaintiff’s claims against Rosario should be
dismissed because he has not exhausted his administrative remedies as to those
claims, and he has failed to show that the grievance process was unavailable to
5 

him. Defendants also reassert their arguments that Plaintiff’s deliberate
indifference allegations fail to rise to an Eighth Amendment violation because he
acknowledges he received medical treatment from both defendants, and that both
defendants are entitled to qualified immunity.
C.

Standards for Dispositive Motions

Defendants bring this motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6),
or, in the alternative, motion for summary judgment pursuant to Fed. R. Civ. P. 56.
1.

Motions to Dismiss (Fed. R. Civ. P. 12)

When deciding a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6), the Court must “construe the complaint in the light most favorable to
plaintiff and accept all allegations as true.” Keys v. Humana, Inc., 684 F.3d 605,
608 (6th Cir. 2012). “To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible
on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
omitted); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(concluding that a plausible claim need not contain “detailed factual allegations,”
but it must contain more than “labels and conclusions” or “a formulaic recitation of
the elements of a cause of action”). Facial plausibility is established “when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.
6 

at 678. “The plausibility of an inference depends on a host of considerations,
including common sense and the strength of competing explanations for the
defendant’s conduct.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B., 727
F.3d 502, 503 (6th Cir. 2013).
2.

Motions for Summary Judgment (Fed. R. Civ. P. 56)

Under Federal Rule of Civil Procedure 56, “[t]he court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a). A fact is material if it might affect the outcome of the case under governing
law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court
“views the evidence, all facts, and any inferences that may be drawn from the facts
in the light most favorable to the nonmoving party.” Pure Tech Sys., Inc. v. Mt.
Hawley Ins. Co., 95 F. App’x 132, 135 (6th Cir. 2004) (internal citations omitted).
“The moving party has the initial burden of proving that no genuine issue of
material fact exists . . . .” Stansberry v. Air Wis. Airlines Corp., 651 F.3d 482, 486
(6th Cir. 2011) (internal quotations omitted); cf. Fed. R. Civ. P. 56 (e)(2)
(providing that if a party “fails to properly address another party’s assertion of
fact,” then the court may “consider the fact undisputed for the purposes of the
motion.”). “Once the moving party satisfies its burden, ‘the burden shifts to the
nonmoving party to set forth specific facts showing a triable issue.’” Wrench LLC
7 

v. Taco Bell Corp., 256 F.3d 446, 453 (6th Cir. 2001) (quoting Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). The nonmoving
party must “make an affirmative showing with proper evidence in order to defeat
the motion.” Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009); see also
Metro. Gov’t of Nashville & Davidson Cty., 432 F. App’x 435, 441 (6th Cir. 2011)
(“The nonmovant must, however, do more than simply show that there is some
metaphysical doubt as to the material facts . . . . [T]here must be evidence upon
which a reasonable jury could return a verdict in favor of the non-moving party to
create a genuine dispute.”) (internal quotation marks and citations omitted).
Summary judgment is appropriate if the evidence favoring the nonmoving
party is merely colorable or is not significantly probative. City Management Corp.
v. United States Chem. Co., 43 F.3d 244, 254 (6th Cir. 1994). In other words,
summary judgment is appropriate when “a motion for summary judgment is
properly made and supported and the nonmoving party fails to respond with a
showing sufficient to establish an essential element of its case. . . .” Stansberry,
651 F.3d at 486 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).
3. Pro se Pleadings
The Court holds pro se complaints to “less stringent standards than formal
pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972).
However, even in pleadings drafted by pro se parties, ‘“courts should not have to
8 

guess at the nature of the claim asserted.”’ Frengler v. Gen. Motors, 482 F. App’x
975, 976-77 (6th Cir. 2012) (quoting Wells v. Brown, 891 F.2d 591, 594 (6th Cir.
1989)). Moreover, “courts may not rewrite a complaint to include claims that were
never presented . . . nor may courts construct the Plaintiff’s legal arguments for
him. Neither may the Court ‘conjure up unpled allegations[.]’” Rogers v. Detroit
Police Dept., 595 F.Supp.2d 757, 766 (E.D. Mich. 2009) (Ludington, J., adopting
report and recommendation of Binder, M.J.).1
D.

Discussion
1.

Plaintiff’s Bivens claims against Rosario should be
dismissed for failure to exhaust administrative remedies

Defendants assert that Plaintiff only properly exhausted one claim—that Dr.
Malatinsky was deliberately indifferent to his serious medical needs when Dr.
Malatinsky discontinued Plaintiff’s Warfarin prescription in December 2013.
Defendants argue that Plaintiff has failed to exhaust his claims against Rosario and
those claims therefore should be dismissed. (DE 21 at 20-24.) Plaintiff contends
in response that he was unable to file a grievance against Rosario because staff
members interfered and refused Plaintiff’s attempts to file a grievance naming
Rosario. (DE 25 at 14, 17-18, ¶ 5.) Defendants argue in reply that Plaintiff’s

1

See also, Evans v. Mercedes Benz Fin. Servs., LLC, No. 11-11450, 2011 WL
2936198, at *2 (E.D. Mich. July 21, 2011) (Cohn, J.) (“Even excusing plaintiff's
failure to follow Rules 8(a)(2) and 10(b), a pro se plaintiff must comply with basic
pleading requirements, including Rule 12(b)(6).”).

9 

claims are contradicted by his BOP administrative remedy history, and that he has
failed to exhaust his administrative remedies as to Rosario. (DE 26 at 5-8.)
a.

Exhaustion generally

Under the PLRA, a prisoner may not bring an action “with respect to prison
conditions under section 1983 of this title, or any other Federal law . . . until such
administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).
Congress enacted this provision to address the “outsized share” of prisoner
litigation filings and to ensure that “the flood of nonmeritorious claims does not
submerge and effectively preclude consideration of the allegations with merit.”
Jones v. Bock, 549 U.S. 199, 203-04 (2007). Put another way, the purpose of
§ 1997e(a) is to “reduce the quantity and improve the quality of prisoner suits.”
Porter v. Nussle, 534 U.S. 516, 524-25 (2002). In addition, exhaustion “gives an
agency an opportunity to correct its own mistakes with respect to the programs it
administers before it is haled into federal court, and it discourages disregard of [the
agency’s] procedures.” Woodford v. Ngo, 548 U.S. 81, 89 (2006) (internal
quotations and citations omitted).
“There is no question that exhaustion is mandatory under the PLRA and that
unexhausted claims cannot be brought into court.” Jones, 549 U.S. at 211. The
prison’s grievance process determines when a prisoner has properly exhausted his
or her claim. Id. at 219 (“The level of detail necessary in a grievance to comply
10 

with the grievance procedures will vary from system to system, but it is the
prison’s requirements, and not the PLRA, that define the boundaries of proper
exhaustion.”). Even where a prisoner has made some attempts to go through the
prison’s grievance process, “[t]he plain language of the statute makes exhaustion a
precondition to filing an action in federal court.” Freeman v. Francis, 196 F.3d
641, 645 (6th Cir. 1999). The prisoner “may not exhaust his [or her]
administrative remedies during the pendency of the federal suit.” Id. (citations
omitted); see also Woodford, 548 US at 95 (“A prisoner who does not want to
participate in the prison grievance system will have little incentive to comply with
the system’s procedural rules unless noncompliance carries a sanction . . . .”).
However, “the PLRA and Federal Rule of Civil Procedure 15 permit a plaintiff to
amend his complaint and add claims that were exhausted after the commencement
of the lawsuit, provided that the plaintiff’s original complaint contained at least one
fully exhausted claim.” Mattox v. Edelman, 851 F.3d 583, 595 (6th Cir. 2017).
Moreover, “inmates are not required to specially plead or demonstrate exhaustion
in their complaints.” Jones, 549 U.S. at 216. Instead, failure to exhaust
administrative remedies is an affirmative defense under the PLRA. As such,
Defendants bear the burden of proof on exhaustion. Surles v. Andison, 678 F.3d
452, 456 (6th Cir. 2012).
b.

Grievance Procedures at the Federal BOP 
11 

The Federal BOP Administrative Remedy Program is set forth in Program
Statement 1330.18. See also 28 C.F.R. §§ 542.10-542.19. “The purpose of the
Administrative Remedy Program is to allow an inmate to seek formal review of an
issue relating to any aspect of his/her own confinement.” 28 C.F.R. § 542.10(a).
The procedure begins with informal resolution of any issue with staff, 28 C.F.R. §
542.13, and continues with initial filing of a formal grievance on Form BP-9/BP229 within 20 days. 28 C.F.R. § 542.14. If the prisoner is not satisfied with the
warden’s response, he or she must appeal to the appropriate regional office on
Form BP-10 within 20 days, and if unsatisfied with that response, to the General
Counsel on Form BP-11 within 30 days thereafter. 28 C.F.R. § 542.15. “Appeal
to the General Counsel [(Form BP-11)] is the final administrative appeal.” 28
C.F.R. § 542.15.
c.

Administrative Remedy (AR) 865714 only exhausts
Plaintiff’s claims against Dr. Malatinsky

Defendants state that Plaintiff only fully exhausted one administrative
remedy case prior to filing his complaint in this matter, AR 865714. This
grievance progressed as follows:
 On April 15 2016, Plaintiff completed an “Attempt at Informal
Resolution,” stating that he requested medical services on March 24,
2015 “due to server [sic] chest and breathing problems,” and that “[a]
couple of months earlier Dr. Malitinski [sic] pulled [him] off [his] blood
thinners without doing any test to see if it was safe.” Plaintiff requests
that “Dr. Malitinski [sic] be fired and a $25,000,000 settlement be
awarded.” (DE 21-8.)
12 

 On April 20, 2016, Plaintiff’s Unit Counselor issued a written response
informing Plaintiff that his complaint could “not be resolved at this
level.” (Id.)
 Plaintiff initiated the formal grievance process by completing a “Request
for Administrative Remedy” (BP-229 form), dated April 27, 2016, again
complaining that he was taken to the hospital on March 24, 2015
“because of staff neglance [sic]. Dr. Malintski [sic] took [him] off [his]
blood thinner without doing any test to see if it was safe and against [his]
wishes.” Plaintiff again requests that “Dr. Malintski [sic] be fired” and
“for a $25,000,000 settlement.” (DE 21-9.)
 The legal department at FCI Milan received Plaintiff’s BP-229 form on
June 15, 2016, and the Warden issued a written response denying
Plaintiff’s request on July 25, 2016. The Warden’s response construed
Plaintiff’s complaint as an allegation of “‘staff neglect’ for removing
[Plaintiff] from a blood thinner medication.” The response summarized
Plaintiff’s medical treatment and explained that “[s]ince [Plaintiff] had
completed 12 months of therapy, the Clinical Director stopped the blood
thinner according to the national guidelines.” (DE 21-10.)
 On September 28 2016, the North Central Regional Office received
Plaintiff’s BP-10 appeal dated May 11, 2016, in which he repeated his
complaint of “staff neglance [sic]” and that Dr. Malatinsky took him off
blood thinning medication. Plaintiff requested that Dr. Malatinsky be
fired and asked for $25,000,000. (DE 21-11.)
 On October 21, 2016, the Regional Director issued a written response
denying Plaintiff’s appeal, for the same reasons stated by the Warden,
and explaining that Plaintiff has “consistently been provided timely and
appropriate medical care in accordance with Program Statement 6031.04,
Patient Care, and the National Drug Formulary.” (DE 21-12.)
 On December 8, 2016, Plaintiff’s Central Office Administrative Remedy
Appeal (BP-11) was received, in which Plaintiff complains again that Dr.
Malatinsky should not have removed him from blood thinning
medication, and requests that Dr. Malatinsky be fired and for an award of
$25,000,000. (DE 21-13.)
13 

 On January 6, 2017, the National Inmate Appeals Administrator issued a
written response denying Plaintiff’s appeal, concurring with the findings
of the Warden and the Regional Director, finding no misconduct. (DE
21-14.)
Defendants assert that, based on this grievance, Plaintiff exhausted his
administrative remedies for only one claim—that Dr. Malatinsky was deliberately
indifferent to Plaintiff’s medical needs by discontinuing the prescription for
Warfarin—but that he did not exhaust any claims against Rosario. (DE 21 at 2124.) As Defendants correctly explain, this grievance did not mention Aurelio
Rosario by name or title, or contain factual allegations that could be construed as a
claim of deliberate indifference against Rosario for events on March 24, 2015.
Accordingly, I find that Plaintiff has failed to exhaust his administrative remedies
as to any claims against Rosario through AR 865714.
d.

Plaintiff has failed to show that administrative
remedies were otherwise unavailable

Plaintiff does not dispute that AR 865714 does not exhaust his
administrative remedies as to Rosario. (See DE 25 at 14, 25 ¶ 5.) Instead, he
contends that Defendants “actively interfered” with his attempts to exhaust his
administrative remedies against Rosario, claiming that a “BP-9 was filed against
defendant Rosario, but it was refused by the defendants because the policy at the
prison required all facts to be submitted in a single grievance, and not split between
the staff members.” (Id.)
14 

The PLRA provides that “[n]o action shall be brought with respect to prison
conditions under section 1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted.” 42 U.S.C. § 1997e(a) (emphasis added).
Under some limited circumstances, an inmate may be excused from completing the
applicable grievance process. As the United States Supreme Court recently
explained, an administrative remedy is unavailable to the plaintiff when: (1) it
“operates as a simple dead end—with officers unable or consistently unwilling to
provide any relief to aggrieved inmates,” (2) the grievance process is so
incomprehensible that “no ordinary prisoner can discern or navigate it,” or (3)
“prison administrators thwart inmates from taking advantage of a grievance
process through machination, misrepresentation, or intimidation.” Ross v. Blake,
136 S. Ct. 1850, 1859-60 (2015); see also Himmelreich v. Fed. Bureau of Prisons,
No. 13-4212, 2014 WL 4413214, at *1 (6th Cir. Sept. 9, 2014) (“[W]e have
excused a prisoner’s lack of complete compliance [with exhaustion of
administrative remedies] when the improper actions of prison officials render the
administrative process functionally unavailable.”). Plaintiff here argues that prison
staff members “actively interfered” with his attempts to exhaust his administrative
remedies as to his claims against Rosario. (DE 25 at 14.)

15 

As Defendants properly argue in their reply brief, Plaintiff cannot sustain his
claim that the administrative remedies were unavailable to him. It is undisputed
that he properly filed, and the BOP properly processed the administrative claim
that led to this lawsuit; and Plaintiff could have included claims against Rosario in
that grievance, but did not. (See DE 26-1 at 3 ¶ 12 (“There is no BOP policy or
federal regulation that prohibits an inmate from filing a grievance against multiple
staff members.”)) Defendants assert that Plaintiff’s unsupported claim that the
Federal BOP rejected his BP-9 forms asserting a claim against Rosario is
contradicted by his BOP administrative remedy history, which they attach. (DE 26
at 6.) According to that history, Plaintiff did attempt to file a the same BP-10 form
(grievance AR 862637) directly with the BOP regional office three times,
including May 17, 2016 (862637-R1), August 15, 2016 (862637-R2), and
September 9, 2016 (862637-R3). (DE 26 at 6, citing DE 26-1 at 3, ¶ 13; id. at 2627.) But because this grievance did not meet any of the criteria for bypassing the
Federal BOP requirements to file an initial BP-9 at the institution,2 the regional

2

There are only four exceptions which allow an inmate to bypass the requirements
to initially file a BP-9 at the institution and file a BP-10 or BP-11 directly with the
regional or central office: (1) when the inmate clearly marks the grievance as
“sensitive” and the Regional Administrative Remedy Coordinator agrees the issue
is sensitive (i.e., if the inmate’s safety or well-being would be placed in danger if
the request became known at the institution); (2) when the inmate is appealing a
decision of the Discipline Hearing Office (DHO); (3) when the inmate is appealing
Control Unit placement; or (4) when the inmate is appealing Controlled Housing
16 

office properly rejected the BP-10 on all three occasions. (DE 26-1 at 3 ¶13; id. at
26-27.) Defendants point out that there is no record that Plaintiff ever filed a BP-9
for grievance 862637 or appealed any of the three rejections to the BOP’s central
office. (DE 26 at 7; DE 26-1 at 3 ¶¶ 13-14.)
Plaintiff attaches a declaration to his response brief in support of his
contention that administrative remedies were unavailable to him, but does not
submit any documents or any other evidence in support of his contention that he
attempted to file BP-9 forms asserting a grievance against Rosario, or that those
forms were returned with a notation “that the administration would not accept two
separate grievances from the same incident.” (See DE 25 at 17-18, ¶ 5.) Plaintiff
further offers no details about the claims allegedly grieved and the persons against
whom he filed the grievances that he alleges were refused or thrown away.
Plaintiff cannot create a genuine issue of material fact through such bare
allegations, unsupported by any admissible evidence. Lowe v. Clift, No. 1:06-CV076, 2007 WL 2112672, at *11 (E.D. Tenn. July 19, 2007) (“Plaintiff’s reliance on
bare allegations is not sufficient to create an issue of material fact or otherwise
defeat a summary judgment motion.”). The Sixth Circuit has noted that a plaintiff’s
“generalized statements” that prison officials refused to process grievance forms
“are insufficient to create a genuine dispute of material fact as to whether the

Status placement. (DE 26-1, ¶ 9, citing 28 C.F.R. § 542.14(d).) None of those
exceptions apply in this case.
17 

administrative process was available to him[.]” See Belser v. James, No. 16-2578,
2017 WL 5479595, at *2 (6th Cir. June 6, 2017) (citing in part Arbuckle v.
Bouchard, 92 F. App’x 289, 291 (6th Cir. 2004) (“[Plaintiff’s] bald assertion that
[the grievance coordinator] refused to give him grievance forms is not enough to
excuse the complete absence of evidence that he attempted to exhaust his
administrative remedies for the many claims he raised in his district court
complaint.”)); see also El-Hanini v. Fed. Bureau of Prisons, No. 5:17-256-DCR,
2018 WL 506226, at *2 (E.D. Ky. Jan. 22 2018) (plaintiff’s claims that prison
officials refused to give him BP-8, 9 forms is insufficient to excuse his failure to
comply with the exhaustion requirement).
In light of the evidence presented by Defendants, who bear the burden of
proof, and the lack of evidence presented by Plaintiff, the circumstances are not
such that “the evidence is susceptible of different interpretations or inferences by
the trier of fact,” which would preclude summary judgment in favor of the party
bearing the burden of proof. Hunt v. Cromartie, 526 U.S. 541, 553 (1999).
Plaintiff has failed to establish that the administrative remedy process was a dead
end, or opaque, or that prison officials thwarted Plaintiff from pursuing his claim.
Rather, Defendants have established that the prison officials properly rejected
grievance AR 862637 because the grievance did not meet the criteria for bypassing
the requirement to file an initial BP-9 at the institution, and Plaintiff did not appeal
18 

any of the three rejections to the BOP’s central office or otherwise pursue the
proper avenue. (DE 26-1 at 3 ¶¶ 13-14.) Accordingly, Plaintiff’s claims against
Rosario should be dismissed for failure to exhaust administrative remedies.
2.

Plaintiff’s Eighth Amendment claims fail as a matter of law

Plaintiff asserts a violation of the Eighth Amendment’s prohibition against
cruel and unusual punishment. “The Eighth Amendment prohibition on cruel and
unusual punishment protects prisoners from the ‘unnecessary and wanton infliction
of pain.’” Barker v. Goodrich, 649 F.3d 428, 434 (6th Cir. 2011) (quoting Whitley
v. Albers, 475 U.S. 312, 319 (1986)). “Where prison officials are so deliberately
indifferent to the serious medical needs of prisoners as to unnecessarily and
wantonly inflict pain, they impose cruel and unusual punishment in violation of the
Eighth Amendment.” Horn by Parks v. Madison Cty. Fiscal Court, 22 F.3d 653,
660 (6th Cir 1994) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). “Among
‘unnecessary and wanton’ inflictions of pain are those that are ‘totally without
penological justification.” Rhodes v. Chapman, 452 U.S. 337, 346 (1981) (citing
Gregg v. Georgia, 428 U.S. 153, 183 (1976)).
To support a claim of deliberate indifference under the Eighth Amendment,
a plaintiff must satisfy two components: an objective component, and a subjective
component. Villegas v. Metro. Gov’t of Nashville, 709 F.3d 563, 568 (6th Cir.
2013) (citation omitted). “Satisfying the objective component ensures that the
19 

alleged deprivation is sufficiently severe, while satisfying the subjective
component ‘ensures that the defendant … acted with a sufficiently culpable state of
mind.’” Quigley v. Toung Vinh Thai, 707 F.3d 675, 681 (6th Cir. 2013) (quoting
Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir. 2003)). To satisfy the objective
component, “the plaintiff must allege that the medical need at issue is ‘sufficiently
serious.’” Id. (citations omitted). A sufficiently serious need is “one that has been
diagnosed by a physician as mandating treatment or one that 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 Cir. 2004).
To satisfy the subjective component of a deliberate indifference claim and
show that the defendant had a sufficiently culpable state of mind, a plaintiff must
show that “‘the official knows of and disregards’ the substantial risk of serious
harm.” Villegas, 709 F.3d at 569 (citation omitted). The plaintiff need not prove,
however, “that the official acted ‘for the very purpose of causing harm or with
knowledge that harm will result.’” Comstock v. McCrary, 273 F.3d 693, 703 (6th
Cir. 2001) (quoting Farmer v. Brennan, 511 U.S. 825, 835 (1994)). Instead, a
plaintiff must show that: (1) the defendant “subjectively perceived facts from
which to infer substantial risk to the [plaintiff],” (2) the defendant “did in fact draw
that inference,” and (3) the defendant “then disregarded that risk.” Quigley, 707
F.3d at 681 (citations omitted). However, a difference in judgment between an
20 

inmate and prison medical personnel regarding what constitutes appropriate
medical treatment does not give rise to a constitutional violation. Westlake v.
Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976).
Defendants argue that Plaintiff has failed to allege viable constitutional
claims against Dr. Malatinsky and Rosario for deliberate indifference to his
medical needs. (DE 21 at 24-32.)3 Plaintiff’s response brief generally cites to
and quotes case law, but fails to apply that law to the facts of this case or otherwise
meaningfully discuss the complaint’s allegations or any other facts relevant to
Plaintiff’s deliberate indifference claims. (DE 25.)
a.

Plaintiff’s allegations against Dr. Malatinsky

Plaintiff alleges that Dr. Malatinsky ignored the warning of medical
specialists when he discontinued Plaintiff’s prescription for Warfarin in December
2013 without undergoing prior medical testing and thus was deliberately
indifferent to Plaintiff’s medical needs in violation of the Eighth Amendment. (DE
1, ¶ 11.) Defendants here do not dispute that Plaintiff’s allegations that he suffered
from a pulmonary embolism and thromboembolic disease shortly before he arrived
at FCI Milan in 2013, that he was prescribed Warfarin for treatment of those

3

Plaintiff also asserts that he has been “subjected to punishment not authorized by
the judgment of conviction” in violation of the Fifth and Sixth Amendments[.]”
(DE 1, ¶ 10.) However, these bare allegations contain no factual support and thus
fail to state a claim. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare
recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”) (citation omitted).
21 

conditions, and that he risked suffering pulmonary problems without Warfarin, are
sufficient to satisfy the objective component of his Eighth Amendment claim. (DE
21 at 28.) However, Defendants argue that Plaintiff’s allegations regarding Dr.
Malatinsky fail to satisfy the subjective component of this claim for two reasons:
(1) Plaintiff does not allege what the recommendations of his specialists were in
December 2012, or whether Dr. Malatinsky was aware of those recommendations;
and (2) the record demonstrates that Plaintiff received attention and that he simply
disagrees with treatment decisions made by the medical staff, and a disagreement
over treatment does not rise to the level of a constitutional violation. (DE 21 at 2829.)
The Court agrees that Plaintiff here essentially disagrees with Dr.
Malatinsky’s medical judgment in discontinuing Plaintiff’s prescription for
Warfarin in December 2013. Plaintiff alleges in his complaint that he objected to
discontinuing Warfarin and that unidentified medical specialists had warned him
not to discontinue taking Warfarin without undergoing tests. (DE 1, ¶ 5.) Plaintiff
however has provided no documentation from those specialists setting forth that
warning, much less allege that he showed any such documentation to Dr.
Malatinsky before he discontinued the prescription. On the other hand, Dr.
Malatinsky has provided a legitimate medical reason for discontinuing the
medication—that he reviewed Plaintiff’s medical history and followed BOP
22 

guidelines regarding the length of time a patient should be on Warfarin. (DE 21-4,
¶ 6, citing DE 21-5.) In addition, medical records provided by Defendants show
that Plaintiff continued to be evaluated and treated by various physicians, including
Dr. Malatinsky, and that he did not report any issues related to his pulmonary
embolism or other complaints regarding discontinuance of Warfarin. (DE 21-3 at
1-10; DE 21-6 at 49-50.) That Plaintiff, or even another doctor, might disagree
with Dr. Malatinsky’s decision to discontinue Warfarin is not the point. There is
no dispute that Dr. Malatinsky provided treatment to Plaintiff starting in December
2013, and that Dr. Malatinsky made a medical decision in the course of that
treatment to discontinue Warfarin. “[W]here a prisoner has received some medical
attention and the dispute is over the adequacy of the treatment, federal courts are
generally reluctant to second guess medical judgments and to constitutionalize
claims which sound in state tort law.” Graham ex rel. Estate of Graham v. Cty. of
Washtenaw, 358 F.3d 377, 385 (6th Cir. 2004) (internal quotations marks omitted);
see also White v. Corr. Med. Servs. Inc., 94 F. App’x 262, 264 (6th Cir. 2004)
(“Any perceived deficiencies in his treatment [and the doctor’s decision to
discontinue plaintiff’s previous course of treatment] amounted to only negligence
or a difference of opinion.”). Thus, Plaintiff’s Eighth Amendment claim against
Dr. Malatinsky fails because Dr. Malatinsky made a medical decision in the course

23 

of providing treatment to Plaintiff, and a mere difference of opinion between a
prisoner and a prison doctor does not rise to deliberate indifference.
b. Plaintiff’s allegations against Rosario
Assuming, arguendo, that Plaintiff had properly exhausted his claim against
Rosario, his Eighth Amendment deliberate indifference claim should nevertheless
be dismissed. Defendants concede, as they did above, that Plaintiff has satisfied
the objective prong of an Eighth Amendment claim. Defendants argue, however,
that Plaintiff’s allegations against Rosario fail to satisfy the subjective component
of an Eighth Amendment claim because Plaintiff admits that: (1) when he first
went to the medical department, Rosario was not aware of any symptoms of
concern; (2) that Rosario “could discern nothing was wrong with the plaintiff;”
and, (3) that when he returned to Rosario a second time, after he climbed the stairs
to a second tier unit, had a heart attack, and returned to the medical department, he
admits Rosario contacted a doctor who ordered BOP staff to take Plaintiff to the
hospital immediately. (DE 1, ¶¶ 6-7.) Defendants correctly assert that these
allegations reflect medical treatment, sound (at best) in negligence, and do not state
a constitutional violation. See Jerauld ex rel. Robinson v. Carl, 405 F. App’x 970,
976 (6th Cir. 2010) (citation omitted) (“Deliberate indifference requires a degree of
culpability greater than mere negligence.”); Jennings v. Al-Dabagh, 275 F.Supp.2d
863, 870 (E.D. Mich. 2003) (“[T]he fact that a prisoner disagrees with a course of
24 

treatment that was prescribed, or even that the treatment he did receive was
negligently administered, does not rise to a constitutional violation.”). As stated
above “[w]here a prisoner has received some medical attention and the dispute is
over the adequacy of the treatment, federal courts are generally reluctant to second
guess medical judgments and to constitutionalize claims which sound in state tort
law.” Westlake, 537 F.2d at 860 n.5.
Accordingly, Plaintiff has failed to state a cognizable Eighth Amendment
claim against Rosario, and his complaint should be dismissed.
3.

Qualified Immunity

Both Defendants Dr. Malatinsky and Rosario assert that they are entitled to
qualified immunity. The Court conducts a two-step analysis in assessing qualified
immunity. First, the Court determines whether “the violation of a constitutional
right has occurred” and second, whether the “constitutional right at issue was
clearly established at the time of defendant's alleged misconduct.” Grawey v.
Drury, 567 F.3d 302, 309 (6th Cir.2009).
Dr. Malatinsky and Rosario are entitled to qualified immunity under the first
step of the analysis. For the reasons stated above—even assuming the existence of
a clearly established constitutional right—Plaintiff has failed to establish that Dr.
Malatinsky and Rosario violated the right in question. Accordingly, in addition to
the other reasons given in this report for summary judgment to be granted, it is
25 

recommended that Dr. Malatinsky and Rosario are entitled to qualified immunity
on Plaintiff's claims against them.
E.

Conclusion

For the reasons stated herein, it is recommended that the Court GRANT
Defendants’ motion to dismiss or, in the alternative, motion for summary judgment
(DE 21), and DISMISS Plaintiff’s claims against Defendants with prejudice.
Further, Defendants’ motion to extend time to answer (DE 18) is DENIED as
moot.
III.

PROCEDURE ON OBJECTIONS
The parties to this action may object to and seek review of this Report and

Recommendation, but are required to file any objections within 14 days of service,
as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule
72.1(d). Failure to file specific objections constitutes a waiver of any further right
of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec’y of Health &
Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that raise some
issues but fail to raise others with specificity will not preserve all the objections a
party might have to this Report and Recommendation. Willis v. Sec’y of Health &
Human Servs., 932 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of
Teachers Local 231, 829 F.2d 1370, 1273 (6th Cir. 1987). Pursuant to Local Rule
72.1(d)(2), any objections must be served on this Magistrate Judge.

26 

Any objections must be labeled as “Objection No. 1,” and “Objection No.
2,” etc. Any objection must recite precisely the provision of this Report and
Recommendation to which it pertains. Not later than 14 days after service of an
objection, the opposing party may file a concise response proportionate to the
objections in length and complexity. Fed. R. Civ. P. 72(b)(2); E.D. Mich. LR
72.1(d). The response must specifically address each issue raised in the objections,
in the same order, and labeled as “Response to Objection No. 1,” “Response to
Objection No. 2,” etc. If the Court determines that any objections are without
merit, it may rule without awaiting the response.

Dated: May 29, 2018

s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE

Certificate of Service
I hereby certify that a copy of the foregoing document was sent to parties of record
on May 29, 2018, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti

27