Griffin v. Malatinsky et al

Filing 32

OPINION & ORDER(1) Sustaining In Part and Overruling In Part Plaintiff's Objections (Dkt. 30 ), (2) Adopting In Part and Rejecting In Part the Magistrate Judge's Report and Recommendation (Dkt. 27 ), and (3) Granting Defendants' Motions to Dismiss or In Alternative for Summary Judgment (Dkt. 21 ). Signed by District Judge Mark A. Goldsmith. (Sandusky, K)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

NEVIN GRIFFIN,
Plaintiff,

Case No. 17-cv-12204

vs.

HON. MARK A. GOLDSMITH

WILLIAM MALATINSKY, et al.,
Defendants.
____________________

/

OPINION & ORDER
(1) SUSTAINING IN PART AND OVERRULING IN PART PLAINTIFF’S
OBJECTIONS (Dkt. 30), (2) ADOPTING IN PART AND REJECTING IN PART THE
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION (Dkt. 27), AND (3)
GRANTING DEFENDANTS’ MOTIONS TO DISMISS OR IN ALTERNATIVE FOR
SUMMARY JUDGMENT (Dkt. 21)
This matter is presently before the Court on the Report and Recommendation (R&R) of
Magistrate Judge Anthony P. Patti, issued on May 29, 2018 (Dkt. 27). In the R&R, the magistrate
judge recommends that the Court grant Defendants William Malatinsky and Aurelio Rosario’s
motion to dismiss or in the alternative for summary judgment (Dkt. 21). Plaintiff Nevin Griffin
subsequently filed objections to the R&R (Dkt. 30); Defendants have since filed a response (Dkt.
31). For the reasons that follow, the Court sustains in part and overrules in part Griffin’s
objections, adopts in part and rejects in part the R&R, and grants Defendants’ motion to dismiss
or in the alternative for summary judgment.
I. LEGAL STANDARD
The Court reviews de novo those portions of the R&R to which a specific objection has
been made. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(1). However, “a general objection
to a magistrate’s report, which fails to specify the issues of contention, does not satisfy the
requirement that an objection be filed. The objections must be clear enough to enable the district
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court to discern those issues that are dispositive and contentious.” Miller v. Currie, 50 F.3d 373,
380 (6th Cir. 1995).
In evaluating a motion to dismiss under Rule 12(b)(6), “[c]ourts must construe the
complaint in the light most favorable to plaintiff, accept all well-pled factual allegations as true,
and determine whether the complaint states a plausible claim for relief.” Albrecht v. Treon, 617
F.3d 890, 893 (6th Cir. 2010). To survive a motion to dismiss, a complaint must plead specific
factual allegations, and not just legal conclusions, in support of each claim. Ashcroft v. Iqbal, 556
U.S. 662, 678-679 (2009). A complaint will be dismissed unless it states a “plausible claim for
relief.” Id. at 679; Bell Atlantic Corp. v Twombly, 550 US 544, 570 (2007).
A court must 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). “In making this determination, the court must view the evidence in the light most
favorable to the non-moving party and draw all reasonable inferences in its favor.” U.S. S.E.C. v.
Sierra Brokerage Servs., Inc., 712 F.3d 321, 327 (6th Cir. 2013). The court must determine
“whether the evidence presents a sufficient disagreement to require submission to a jury or whether
it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251-252 (1986). “[W]hen a properly supported motion for summary judgment is
made, the adverse party ‘must set forth specific facts showing that there is a genuine issue for
trial.’” Id. at 250 (quoting Fed. R. Civ. P. 56(e)). Furthermore, plaintiff “cannot rely on conjecture
or conclusory accusations.” Arendale v. City of Memphis, 519 F.3d 587, 605 (6th Cir. 2008).
II. ANALYSIS
Griffin sets forth three objections to the magistrate judge’s R&R: (i) the magistrate judge
erred in recommending that Griffin’s complaint should be dismissed as to Rosario for failure to
exhaust all administrative remedies; (ii) the magistrate judge erred when he recommended that
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Defendants’ actions did not violate the Eighth Amendment’s prohibition against cruel and unusual
punishment; and (iii) the magistrate judge erred in recommending that even if Defendants violated
Griffin’s Eighth Amendment rights, they are entitled to qualified immunity. The Court addresses
each objection in turn.
A. Objection One: Failure to Exhaust Administrative Remedies
Griffin first objects to the magistrate judge’s recommendation that Griffin’s Bivens claim
against Rosario should be dismissed for failure to exhaust all administrative remedies prior to filing
in federal court. The magistrate judge noted that while Griffin properly exhausted all of his
administrative remedies against Malatinsky, he failed to properly exhaust his remedies as to
Rosario because he attempted to file a grievance with the Federal Bureau of Prisons’s (“BOP”)
regional office prior to filing a grievance at the institution in which he was being held, in violation
of the BOP’s Administrative Remedy Program. See 28 C.F.R. §§ 542.10-542.19.
The Prisoner Litigation Reform Act (“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). “Proper exhaustion demands
compliance with [the prison’s] deadlines and other critical procedural rules.” Woodford v. Ngo,
548 U.S. 81, 90 (2006). The failure to exhaust administrative remedies is an affirmative defense
to be pled by the defendant and proven by a preponderance of the evidence. Lee v. Willey, 789
F.3d 673, 677 (6th Cir. 2015).
Griffin does not contest that the procedures applicable to him are set out in the BOP’s
Administrative Remedy Program. The program requires inmates (i) to begin with an informal
resolution of their issue with prison staff; (ii) if that fails, the prisoner must file a formal grievance
using Form BP-9 with his institution’s warden; (iii) if he is unsatisfied with the warden’s response,
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the prisoner is required to the appropriate BOP regional office using Form BP-10; and (iv) if
unsatisfied with the response from the regional office, the prisoner must present his final
administrative appeal to the BOP’s general counsel using Form BP-11. See 28 C.F.R. §§ 542.13524.15.
In his R&R, the magistrate judge notes that Griffin appealed directly to the regional office
instead of first bringing his medical complaints to the staff at FCI Milan, the facility where he was
incarcerated. Griffin argues that this failure to follow the Administrative Remedy Program is not
grounds for dismissal, because “[u]nder the facts of this case, the defendants were served with
ample notice that medical personnel had provided the plaintiff with inadequate medical care
through their respective deliberate indifference.” Obj. at 2, PageID.505. However, an inmate is
only permitted to bring a § 1983 claim without exhausting his administrative remedies where such
remedies are not available. See Ross v. Blake, 136 S.Ct. 1850, 1858 (2016). Administrative
remedies are only considered unavailable (i) where the administrative procedure “operates as a
simple dead end – with officers unable or unwilling to provide any relief to aggrieved inmates”;
(ii) where the administrative remedy scheme is “essentially unknowable” and thus “no ordinary
prisoner can discern or navigate it”; or (iii) “when prisoner administrators thwart inmates from
taking advantage of a grievance process through machination, misrepresentation, or intimidation.”
See id. at 1858-1861.
While Griffin merely states in his objection that he did not need to exhaust his
administrative remedies because Defendant had “ample notice” of his claims, his affidavit attached
to his response to Defendants’ motion provides support that he satisfied the third exception to the
exhaustion requirement. In his affidavit, Griffin states that, following his hospitalization, he
attempted to file a BP-9 against Rosario, but “staff members interfered with the process by
destroying the . . . BP-9s[] that I attempted to file.” See Griffin Aff., Ex. 1 to Pl. Resp., ¶ 5 (Dkt.
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25).

In the R&R, the magistrate judge states that Griffin failed to satisfy the exhaustion

requirement because he filed a BP-10 with the BOP regional office prior to filing a BP-9 at his
institution. However, Griffin states in his affidavit that he was thwarted from filing a BP-9 because
staff at his institution destroyed the form. Id. While the magistrate judge characterizes this
statement as a “bare allegation” insufficient to defeat summary judgment, see Belser v. James, No.
16-2578, 2017 WL 5479595, at *2 (6th Cir. June 6, 2017), Griffin has alleged more than a mere
refusal to issue the BP-9 form, instead alleging that staff at his facility went so far as to destroy the
documentation. The Court thus sustains Griffin’s objection, and rejects the R&R to the extent it
concludes that Griffin failed to exhaust his administrative remedies as to Rosario. However, as
discussed below, he has failed to state an Eighth Amendment claim against both Rosario and
Malatinsky.
B. Objection Two: Eighth Amendment Claim
Griffin next argues that the magistrate judge erred in recommending that his Eighth
Amendment claims fail as a matter of law. “The Eighth Amendment forbids prison officials from
‘unnecessarily and wantonly inflicting pain’ on an inmate by acting with ‘deliberate indifference’
toward the inmate’s serious medical needs.” Blackmore v. Kalamazoo Cty., 390 F.3d 890, 895
(6th Cir. 2004) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). There are both objective
and subjective components to an Eighth Amendment claim for denial of medical care. Id. “The
subjective component requires an inmate to show that prison officials have ‘a sufficiently culpable
state of mind in denying medical care,’” id. (quoting Brown v. Bargery, 207 F.3d 863, 867 (6th
Cir. 2000)), while “[t]he objective component requires the existence of a ‘sufficiently serious’
medical need.” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). In his motion,
Malatinsky concedes that Griffin’s alleged condition, pulmonary embolism and thromboembolic
disease, is sufficiently serious to satisfy the objective component.
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With regard to the subjective component, “[d]eliberate indifference ‘entails something
more than mere negligence,’ but can be ‘satisfied by something less than acts or omissions for the
very purpose of causing harm or with knowledge that harm will result.’” Id. at 895-896 (quoting
Farmer, 511 U.S. at 835). “[T]he official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.”
Id. at 896 (quoting Farmer, 511 U.S. at 837). The Sixth Circuit “distinguish[es] between cases
where the complaint alleges a complete denial of medical care and those cases where the claim is
that a prisoner received inadequate medical treatment.” Westlake v. Lucas, 537 F.2d 857, 860 n.
5 (6th Cir. 1976). “Where 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. Of course, in some cases
the medical attention rendered may be so woefully inadequate as to amount to no treatment at all.”
Id.
The magistrate judge ruled that Griffin failed to satisfy the subjective component because
all he alleges is a disagreement with the medical decision to take Griffin off of Warfarin, his heart
medication.1 In his complaint, Griffin alleges that, a year prior to seeing Malatinsky in December
2013, he was prescribed Warfarin by specialists and was instructed not to discontinue the
medication without first undergoing tests. Compl. ¶ 5 (Dkt. 1). Griffin alleges that after informing
Malatinsky of this instruction, Malatinsky responded “to hell with them,” and stated that he was

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In the R&R, the magistrate judge also addressed Griffin’s claim that Rosario violated his Eighth
Amendment rights by not initially diagnosing him as having a heart attack in March 2015. The
magistrate judge ruled that Griffin had at best alleged that Rosario was negligent in evaluating
Griffin, and that mere negligence does not give rise to a constitutional claim. See R&R at 24-25.
In his objection to the magistrate judge’s Eighth Amendment findings, Griffin only objects to the
recommendation that he has failed to state an Eighth Amendment claim as to the decision to take
him off Warfarin; Griffin does not take issue with the finding regarding Rosario’s response to his
heart attack. Thus, the Court accepts this recommendation.
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discontinuing the Warfarin for Griffin because it was too expensive for the facility. Id. Griffin
alleges that he suffered a heart attack approximately fifteen months later. Id. ¶ 6.
Based on these allegations alone, Griffin has plausibly stated an Eight Amendment claim
arising out of Malatinsky’s deliberate indifference.

Contrary to the magistrate judge’s

characterization of Malatinsky’s actions as medical judgment, the allegations allow for the
inference that Malatinsky chose to discontinue the Warfarin for entirely non-medical reasons, i.e.
to save the prison facility money. If taken as true, as required when evaluating a motion to dismiss,
the trier of fact could conclude that Malatinsky was aware of a substantial risk of harm (in the form
of an untreated pulmonary embolism) and chose to disregard the risk in favor of financial savings.
However, Defendants’ motion is not styled solely motion to dismiss; it is brought as a
motion to dismiss, or in the alternative for summary judgment. Federal Rule of Civil Procedure
12(d) states that “[i]f, on a motion under Rule 12(b)(6) . . . matters outside the pleadings are
presented to and not excluded by the court, the motion must be treated as one for summary
judgment under Rule 56. All parties must be given a reasonable opportunity to present all the
material that is pertinent to the motion.” “Whether notice of conversion of a motion to dismiss to
one for summary judgment by the court to the opposing party is necessary depends upon the facts
and circumstances of each case. Where one party is likely to be surprised by the proceedings,
notice is required.” Salehpour v. Univ. of Tennessee, 159 F.3d 199, 204 (6th Cir. 1998). Here,
Griffin was served with a motion, accompanied with thirteen exhibits, that expressly moved for
summary judgment in the alternative. Griffin was also given approximately two months to file a
response to the motion. See 1/31/2018 Order (Dkt. 23). Griffin was thus on notice that this Court
may decide Defendants’ motion as one for summary judgment.
A review of the motion and accompanying materials leads to the conclusion that Griffin
has failed to establish a genuine dispute of material fact regarding the culpability of Malatinsky
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and Rosario.2 While he alleges in his complaint that Malatinsky discontinued the Warfarin against
the advice of specialists, solely for financial reasons, he has failed to present any evidence rebutting
Malatinsky’s declaration that he discontinued the Warfarin because the BOP Clinical Practice
Guideline, Anticoagulation Protocol “called for discontinuing the medication after three months
for a patient with a history of pulmonary embolism.” See Malatinsky Decl., Ex. C to Defs. Mot.,
¶ 6 (Dkt. 21-4); see also Anderson, 477 U.S. at 257 (“[T]he plaintiff must present affirmative
evidence in order to defeat a properly supported motion for summary judgment.”). It is undisputed
that at the time of his visit with Malatinsky, Griffin had been on Warfarin for twelve months. With
regard to Rosario, Griffin failed to allege Rosario’s involvement in the decision to discontinue
Warfarin in his complaint or response to Defendants’ motion, instead raising it for the first time in
his objection to the R&R. Even assuming this objection was properly before the Court, Griffin
has not presented evidence that Rosario’s involvement in the decision to discontinue Warfarin was
based on anything other than medical judgment.
Griffin has also failed to set forth an affidavit or any documentary evidence supporting his
allegation that he was instructed by cardiac specialists not to stop taking Warfarin without first
undergoing testing. Furthermore, Defendants’ motion attaches ample medical records showing
that Griffin was continuously treated by Malatinsky, Rosario, and other medical staff following
his December 2013 visit, thereby belying that either Malatinsky or Rosario were indifferent to
Griffin’s medical condition. See Medical Records, Ex. B to Defs. Mot. (Dkt. 21-3).
It thus cannot be said that there is a genuine dispute of fact that Malatinsky or Rosario acted
with deliberate indifference towards Griffin’s medical condition. As a result, Malatinsky and
Rosario are entitled to summary judgment. Because Griffin has not stated an Eighth Amendment

The Court also notes that while Griffin alleged in his complaint that only Malatinsky was
responsible for the decision to take him off Warfarin, he now asserts in his objection that Rosario
is liable for this decision as well.
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claim, the Court need not consider his objection to the magistrate judge’s findings regarding
qualified immunity.
III. CONCLUSION
For the foregoing reasons, the Court sustains in part and overrules in part Griffin’s
objections, adopts in part and rejects in part the R&R, and grants Defendants’ motion to dismiss
or in the alternative for summary judgment.
SO ORDERED.
Dated: June 29, 2018
Detroit, Michigan

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

The undersigned certifies that the foregoing document was served upon counsel of record and any
unrepresented parties via the Court's ECF System to their respective email or First Class U.S. mail
addresses disclosed on the Notice of Electronic Filing on June 29, 2018.
s/Karri Sandusky
Case Manager

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