Lyles v. Papendick et al

Filing 72

OPINION AND ORDER Overruling Defendant's Objection to the Magistrate Judge's Report and Recommendation 71 and Adopting the Report and Recommendation 70 . Signed by District Judge Laurie J. Michelson. (EPar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ANDREW LYLES,
Plaintiff,
v.

Case No. 19-10673
Honorable Laurie J. Michelson
Magistrate Judge Kimberly G. Altman

KEITH PAPENDICK, et al.,
Defendants.
OPINION AND ORDER OVERRULING DEFENDANTS’ OBJECTION TO
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION [71]
AND ADOPTING THE REPORT AND RECOMMENDATION [70]
In November 2016, Andrew Lyles saw Dr. Sharon Oliver at Saginaw
Correctional Facility, where he is incarcerated, because he had blood in his stool.
After ordering an X-ray, performing an anoscopy, and prescribing medication, Oliver
submitted a request asking that Lyles receive a colonoscopy, which can only be done
outside the prison. Dr. Keith Papendick is responsible for reviewing requests to see
non-prison doctors. He denied the November request, apparently thinking that Lyles’
bleeding was caused by constipation. He instructed Oliver to prescribe Lyles a
laxative and order another X-ray showing that Lyles’ constipation had cleared. Oliver
did just that. After Lyles’ condition did not improve, Oliver submitted two more
requests in December 2016 and January 2017. Despite that the January request
stated that Lyles’ constipation had cleared, and other therapies were not working to
stop his bleeding, Papendick denied both of these requests. After the January denial,
Lyles’ condition improved for some time, but started deteriorating once again. So in

April 2017, Oliver submitted another request, which Papendick approved. Lyles was
ultimately diagnosed with ulcerative colitis.
In time, Lyles sued Oliver and Papendick, as well as several other medical
professionals and entities, claiming they were deliberately indifferent to his serious
medical condition in violation of the Eighth Amendment. All pretrial matters were
referred to Magistrate Judge Kimberly Altman. Oliver and Papendick are the only
defendants currently remaining in the suit, and both filed for summary judgment.
Magistrate Judge Altman recommends that the claim against Oliver be dismissed,
but that the claim against Papendick survive.
Defendants object to this recommendation. The Magistrate Judge determined
that a reasonable jury could find for Lyles on the subjective element of his deliberate
indifference claim against Papendick. Papendick asserts that this determination is
error. Lyles has not filed any objections to the Report, nor responded to Defendants’
objection.
For the reasons explained below, the Court will overrule Defendants’ objection
and adopt the very thorough and well-reasoned Report and Recommendation.
Legal Standard
The standard of review depends on whether the parties timely object to the
Report and Recommendation. When a party timely objects, a district judge reviews
the issue(s) raised by the objection de novo, but a district judge is not obligated to
review un-objected to issues. See Fed. R. Civ. P. 72(b); Thomas v. Arn, 474 U.S. 140,
150 (1985); Garrison v. Equifax Info. Servs., LLC, No. 10-13990, 2012 WL 1278044,

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at *8 (E.D. Mich. Apr. 16, 2012). Objections should be “specific in order to focus the
busy district court’s attention on only those issues that were dispositive and
contentious.” Howard v. Sec’y of Health and Human Servs., 932 F.2d 505, 509 (6th
Cir. 1991).
Objection to Subjective Element
Papendick’s overarching objection is to the Magistrate Judge’s finding that a
reasonable jury could find that the subjective element of the deliberate indifference
claim against Papendick is satisfied.
Before considering Papendick’s objection, some law is helpful. A plaintiff who
claims they received constitutionally inadequate medical care in prison “must show
that the prison officials acted with deliberate indifference to a substantial risk of
serious harm.” Rhodes v. Michigan, 10 F.4th 665, 673 (6th Cir. 2021). Deliberate
indifference consists of both an objective and subjective component. Id. The subjective
component requires that the official “knows of and disregards an excessive risk to
inmate health or safety.” Id. at 674–75 (quoting Farmer v. Brennan, 511 U.S. 825,
837 (1994)). Thus, “the 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 675; see also Murray v. Dep’t of Corrections, — F.4th —, No. 213398, 2022 WL 946294, at *4 (6th Cir. Mar. 30, 2022) (describing subjective
component as whether there are “facts from which the inference of a substantial risk
of serious harm” to plaintiff’s health could be drawn and whether the doctor “knew of
and disregarded that substantial risk.”). In other words, a showing that the harm was

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caused by an accident or mere negligence is not sufficient under the Eighth
Amendment. See Estelle v. Gamble, 429 U.S. 97, 105 (1976).
The Court finds that, viewing the evidence de novo and in the light most
favorable to Lyles, a reasonable jury could conclude that Papendick was aware of
facts suggesting that a substantial risk of serious harm existed and that he knew of
that risk, but disregarded it by denying a request for Lyles to consult with a
gastroenterologist or receive a colonoscopy.
By January 2017, Papendick was made aware of several facts that would allow
him to infer that Lyles suffered from a serious medical condition. The January
request for a gastrointestinal consult stated that Lyles had rectal bleeding since
October, and that by November, it was “constant.” (ECF No. 66-1, PageID.516.) The
request also states that in November, Lyles had five positive fecal occult blood test
(FOBT) results, which meant blood not visible to the naked eye was present in his
stool (ECF No. 66-2, PageID.572), and had an anoscopy, which checks for any masses
or ulcers (ECF No. 66-2, PageID.573), but the source of his bleeding was not identified
(id.; see also ECF No. 66-1, PageID.516). The request indicated that “no constipation
was seen” on a December 8, 2016 X-ray of Lyles and that by the end of December, he
had three more positive FOBT results “after clearing [the] constipation.” (ECF No.
66-1, PageID.516.) It also told Papendick that Lyles had an increased number of
stools with bright red blood and had lost seven pounds since the beginning of
December. (Id.)

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Papendick testified that bright red blood in stool could be caused by a number
of conditions, including a fissure, hemorrhoids, constipation, a polyp, a gastric ulcer,
ulcerative colitis, or Crohn’s disease. (ECF No. 66-3, PageID.601.) But the January
request indicated that several of these conditions had been ruled out because Lyles’
anoscopy showed normal results and his constipation had cleared. And, as mentioned,
Lyles continued to report bleeding and had lost weight. Papendick also does not object
to the Magistrate Judge’s finding that ulcerative colitis is a serious medical condition
under the Eighth Amendment. (See ECF No. 70, PageID.1186.) So, from the facts of
the January request, Papendick could infer that the risk of a serious condition, like
ulcerative colitis, was substantial because some of the other, less serious potential
causes had been ruled out already.
There is also evidence that Papendick knew of and disregarded the substantial
risk of serious harm to Lyles’ health. Papendick testified that to determine the source
of rectal bleeding, he would need to “find out if the patient is constipated, then clear
the constipation, then do, probably do a colonoscopy.” (ECF No. 66-3, PageID.602.)
This indicates that once Papendick was made aware that constipation was not the
source of Lyles’ bleeding, he inferred a colonoscopy would be necessary to diagnose
Lyles. Yet, Papendick denied the January 2017 request for a GI consult, stating that
medical necessity was not demonstrated at the time. (ECF No. 66-1, PageID.517.)
And Papendick was aware via the request form that Lyles had been experiencing
rectal bleeding for several months and that he had lost seven pounds, indicating

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Lyles’ condition was worsening.1 (ECF No. 66-1, PageID.512; ECF No. 66-2,
PageID.575, 577.) So there is evidence for a jury to find that Papendick did in fact
infer that Lyles was suffering from a serious medical condition, but he ignored the
need for a colonoscopy by denying the request, delaying appropriate treatment. See
Darrah v. Krisher, 865 F.3d 361, 372–73 (6th Cir. 2017) (holding that because there
was no medical reason for prescribing one medication over another and because
defendants “knew that several alternatives had failed,” a reasonable jury could find
that the doctor disregarded a risk of serious harm by not prescribing the more
effective treatment option).
A reasonable jury could also find that Papendick’s inconsistent decisions
further suggest indifference. A fourth request for a colonoscopy was made in April
2017, which Papendick approved. (ECF No. 66-1, PageID.532.) The April request,
however, is not meaningfully different from the January request. The request states
that Lyles had intermittent bright red bleeding from his rectum since October 2016,
which “reappears cyclically.” (ECF No. 66-1, PageID.532.) It states that Lyles had
three more positive FOBT results from March 30 to April 1. (Id.) And it states that
“constipation documented cleared on 12/8/16” and that the December 8, 2016 X-ray

Papendick argues that because Lyles showed temporary improvement after
he denied the January request, Lyles’ deliberate indifference claim fails. (ECF No.
71, PageID.1223–1224.) Specifically, that Papendick could not have consciously
exposed Lyles to harm if Papendick thought Lyles was improving without a
colonoscopy. (Id.) But this temporary improvement after the January denial has no
bearing on whether Papendick was deliberately indifferent at the point of the January
denial. There is no evidence that Papendick thought Lyles was improving when he
decided to deny the January request. In fact, the request form shows the exact
opposite.
1

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showed a “normal abdomen.” (Id.) Under “failed therapies,” it lists Tums, Protonix (a
medication that decreases acid in the stomach and lower intestine), and Senna (a
laxative). (Id.) Both the January and April requests contain the same pertinent
facts—Lyles has had rectal bleeding since October, he has multiple FOBT positive
results, and his constipation cleared in December 2016. But for reasons not apparent
in the record, Papendick decided that a GI consult or colonoscopy were not necessary
in January but were necessary in April. So based on Papendick’s own actions in April,
there is evidence that, in January, he made the inference that Lyles suffered from a
serious medical condition. Yet, in January, Papendick denied the request for a GI
consult.
Resisting this conclusion, Papendick makes several objections to the findings
in the Magistrate Judge’s report. Papendick argues that he was using his medical
judgment when he denied the three requests for a GI consult or colonoscopy for Lyles.
And, says Papendick, because he used his medical judgment in denying the requests,
the Court should neither “second guess” this judgment nor “constitutionalize” claims
that are more akin to state-law medical malpractice claims. (ECF No. 71,
PageID.1208 (quoting Westlake v. Lucas, 537 F.2d 857, n.5 (6th Cir. 1976)).)
The Court agrees with Papendick that there is evidence he was using his
medical judgment when he denied the requests from November and December 2016.
Specifically, the November request stated that Lyles’ X-ray results showed he was
constipated. (ECF No. 66-1, PageID.497.) Papendick testified that he therefore denied
the request because in his view, a colonoscopy cannot be adequately conducted if the

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patient is constipated, and that constipation is often a cause of rectal bleeding in
prisons. (ECF No. 66-3, PageID.602.) As for the December 2016 request, though the
medical records indicate that Lyles was prescribed a laxative as instructed by
Papendick and that his X-ray results showed no constipation (ECF No. 66-1,
PageID.504–505; ECF No. 66-2, PageID.575), there is no evidence indicating that
Papendick was made aware of these facts. The request itself does not indicate that
the constipation was cleared or that Lyles’ abdomen appeared normal. (See ECF No.
66-1, PageID.512.) So again using the same medical reasoning he used to deny the
November request, Papendick denied the December request because constipation had
not been ruled out as a cause based on the information he knew at the time. Thus,
through December, perhaps the medical-judgment rule applies.
But Papendick’s medical-judgment argument falls apart in the face of the
January 2017 request. As described earlier, that request from another medical doctor
clearly stated that Lyles returned three FOBT positive results “after clearing
constipation” and that on the December 8, 2016 X-ray, “no constipation was seen.”
(ECF No. 66-1, PageID.516.) So Papendick’s reason for denying the initial two
requests—Lyles’ constipation—was no longer relevant in January.
In attempting to explain why resolution of Lyles’ constipation did not prompt
him to approve the January request, Papendick testified that it was not sufficient for
the request form to state that constipation was not seen on the X-ray, and that he
needed to look at the radiology report himself. (ECF No. 66-3, PageID.602.) Yet
Papendick did not testify that he doubted the November 2016 request form, which

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stated that the X-ray showed constipation. And Papendick never explained why it
was sufficient (in his view at least) to rely on the request form in determining that
Lyles was constipated, but insufficient for the request form to state that Lyles’
constipation had cleared.
But, even accepting Papendick’s assertion that he had to check the radiology
report himself, Papendick was unable to testify with certainty whether he ever
actually requested or looked at the report. (See ECF No. 66-3, PageID.602 (“I may
have had the X-ray”); id. at PageID.607 (“I did not have the X-ray report; I probably
went and looked at it.”).) Further, had Papendick looked at the December report, he
would have seen that it states under the “impression” section that Lyles had a
“normal abdomen.” (ECF No. 66-1, PageID.509.) In comparison, the November report
clearly states, “constipation is present.” (See ECF No. 66-1, PageID.487, 509.) So a
reasonable jury could conclude that Papendick did not use his medical judgment to
deny the January request because Lyles was no longer constipated, and his
constipation was the supposed reason for the first two denials. Indeed, based on both
the request form (which Papendick definitely saw) and the radiology report (which
Papendick said he might have seen), Lyles’ constipation had cleared. Thus, there is
evidence that Papendick strayed from his prior judgment to clear the constipation
and then order a colonoscopy, and instead, rejected the January request because he
disregarded the facts he was presented with.
Papendick presents two additional reasons for rejecting the January request.
One is that the “lab information says [Lyles is] not anemic, which is unusual in

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somebody who, quote, has blood in every stool.” (ECF No. 66-3, PageID.603.) A couple
of things could lead a jury to determine that this did not motivate Papendick’s
January denial, however. First, Lyles’ hemoglobin count in both the January and
April requests were normal. In January, Lyles’ hemoglobin was at 15.4, and in April,
it was at 15.2. (ECF No. 66-1, PageID.516, 531.) Both place Lyles within normal
range. See Cleveland Clinic, High Hemoglobin Count, https://perma.cc/EU7H-FXG4,
(“Normal hemoglobin counts are 14 to 17 for men”). So a reasonable jury could
conclude that if lack of anemia was not a reason to deny the request in April, it may
not have been the true motivation behind Papendick’s denial in January. Second,
Papendick did not mention anemia as a factor in his decision to deny the requests in
November and December. The alternative therapy he recommends when denying
those two requests focuses on clearing Lyles’ constipation and then re-evaluating the
request. (ECF No. 66-1, PageID.498, 513.) So a reasonable jury could also find that
Papendick initially denied the requests because he thought constipation was the more
likely issue, but once the constipation had resolved, he had no medical reason to deny
the January request.
Papendick also suggests he denied the January request because FOBT results
are subjective. (See ECF No. 66-3, PageID.603.) Specifically, Papendick testified that
the FOBT can return positive results for several reasons: “One is blood; two is
anything he ate that had blood in it; three is anything that causes his stool to be
black; or a misread of the FOBT cards. The FOBT cards are read by nursing staff,
typically. I don’t know if these were read by a physician or not.” (Id.)

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But this argument is a red herring. Papendick did not testify that when he
received the January request, he thought that Lyles’ positive FOBT results were due
to anything other than rectal bleeding. In fact, he testified that he did not assume the
FOBT results were “misread” and that “I don’t know that I doubted [that Lyles had
bright red blood in his stool].” (ECF No. 66-3, PageID.603.) Since there is no evidence
that either Papendick thought any of the non-bleeding reasons were causing Lyles’
positive FOBT results when denying the request or that Papendick doubted that
Lyles had rectal bleeding when denying the request, this testimony does little to move
the ball forward. As is, it does not help a jury determine whether Papendick was made
aware of facts that would allow him to infer a substantial risk of harm to Lyles’s
health, or if Papendick knew of and disregarded that substantial risk. So it does not
change the Court’s finding here.
As a final note, the Court recognizes that Papendick made several objections
involving the Magistrate Judge’s use of evidence from Dr. Albert Choi, Lyles’ expert
witness. These objections, however, also do not change the outcome of the Court’s
findings above. Even without relying upon Choi’s testimony, there is sufficient
evidence for a reasonable jury to conclude that Papendick acted with deliberate
indifference in denying the January request that Lyles receive a GI consult. Because
the objections regarding Choi do not alter the analysis for the subjective component,
the Court will not address them on the merits.

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Other Claims
As to the other claims, none of Lyles, Papendick, or Oliver filed any objections,
and the time to do so has passed. (See ECF No. 70, PageID.1202 (giving the parties
14 days from March 4, 2022 to object and noting that “[f]ailure to file specific
objections constitutes a waiver of any further right of appeal.”).)
The Court therefore finds that the parties have waived further review of the
Magistrate Judge’s findings on Lyles’ other claims.
Conclusion
In sum, the Court OVERRULES Papendick’s objection to the Magistrate
Judge’s Report and Recommendation (ECF No. 71) and ADOPTS the recommended
disposition for all claims (ECF No. 70). So Defendants’ motion for summary judgment
(ECF No. 66) is granted in part. Oliver is DISMISSED as a defendant, but Lyles may
proceed with his deliberate indifference claim against Papendick.
SO ORDERED.
Dated: March 31, 2022
s/Laurie J. Michelson
LAURIE J. MICHELSON
UNITED STATES DISTRICT JUDGE

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