Dowell v. Oliver et al
OPINION AND ORDER granting 25 , 36 Motions for summary judgment. Denying leave to proceed in forma pauperis on appeal. Signed by District Judge Stephen J. Murphy, III. (DPer)
Case 2:19-cv-12402-SJM-PTM ECF No. 40, PageID.483 Filed 07/19/21 Page 1 of 14
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 2:19-cv-12402
HONORABLE STEPHEN J. MURPHY, III
DR. SHARON OLIVER, et al.,
OPINON AND ORDER
GRANTING DR. OLIVER AND PA BUSKIRK'S
MOTION FOR SUMMARY JUDGMENT  AND GRANTING
NURSE SMITH'S MOTION FOR SUMMARY JUDGMENT 
Plaintiff Anthony Dowell, a pro se prisoner, sued Defendants for civil rights
violations. ECF 1. Plaintiff asserted deliberate indifference claims against each
Defendant under 42 U.S.C. § 1983 for violating his Eighth Amendment rights. Id. at
8–9. Plaintiff also asserted claims under the Americans with Disability Act ("ADA")
against each Defendant. Id.
The Court first referred the case to the pro se prisoner mediation program.
ECF 4. After a failed mediation, the Court lifted the stay and ordered the United
States Marshals to serve Defendants with the complaint and a summons. ECF 11.
In time, Defendants responded to the complaint. ECF 25; 28. Doctor Oliver and
PA Buskirk moved for summary judgment. ECF 25. Plaintiff responded to the motion,
ECF 29, and Oliver and Buskirk replied, ECF 31. Three weeks later, Plaintiff filed
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an addendum to his response. ECF 33. Because the addendum violates local rules,
the Court will order the Clerk of the Court to strike it.
Local Rule 7.1(c) allows a party to file only one response in opposition to a
motion. "A party must obtain leave of the court to file more than one response." E.D.
Mich. L.R. 7.1(c)(3). Because Plaintiff submitted two responses without obtaining
leave to do so, Plaintiff violated local rules. Although Plaintiff is pro se, the Court's
Practice Guidelines explain that "[p]ro se litigants, like all attorneys appearing before
the Court, are expected to adhere to the all procedural rules, including . . . the Local
Rules of the Eastern District of Michigan." See also Branham v. Micro Comp.
Analysts, 350 F. App'x 35, 38 (6th Cir. 2009) ("[F]ederal courts 'have never suggested
that procedural rules in ordinary civil litigation should be interpreted so as to excuse
mistakes by those who proceed without counsel.'") (quoting McNeil v. United States,
508 U.S. 106, 113, (1993)). As a result, the Court will order the Clerk of the Court to
strike Plaintiff's addendum, ECF 33.
Nurse Smith later moved for summary judgment, ECF 36, and the parties fully
briefed the motion, ECF 37. The Court did not hold a hearing for the pending civil
motions because Plaintiff is in custody. E.D. Mich. L.R. 7.1(f)(1). For the reasons
below, the Court will grant both summary judgment motions.
Plaintiff claimed that he fell several times in prison and was given poor
medical treatment and accommodations after those falls. ECF 29, PgID 301–02.
Plaintiff accepted "as true the facts" outlined in ECF 25, PgID 121–32 of Dr. Oliver
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and PA Buskirk's summary judgment motion. ECF 29, PgID 290; see also ECF 37,
PgID 469 (Plaintiff explaining that he incorporates his November 30 response to Dr.
Oliver and PA Buskirk's summary judgment motion).1 The Court will detail those
When Plaintiff was transferred to a new prison, Plaintiff was provided special
accommodations that included walking with a wooden cane and ACE wrap for his
knees. ECF 26, PgID 156–57.2 In August 2017, Plaintiff complained of knee pain and
requested a no-stair detail to Dr. Oliver. ECF 25-2, PgID 144; ECF 26, PgID 158–59.
During the exam, Dr. Oliver noted that Plaintiff lacked muscle weakness in his knees
and Dr. Oliver instructed Plaintiff to do motion and strength exercises. ECF 25-2,
PgID 144; ECF 26, PgID 160–61. She also ordered an x-ray to determine whether
Plaintiff needed a no-stair accommodation. ECF 25-2, PgID 144; ECF 26, PgID 162.
The x-ray later revealed that Plaintiff had mild soft tissue swelling in his knees. ECF
26, PgID 165.
Shortly after, Plaintiff complained about his knee pain again and requested a
walker or wheelchair to replace his cane. Id. at 166, 168. This time, Plaintiff saw
Nurse Smith who noted the walker or wheelchair request and noted that Plaintiff's
Plaintiff submitted two unsworn affidavits from fellow inmates. ECF 29, PgID 303–
06; see 28 U.S.C. § 1746(2) (requiring that a declaration state, “'I declare (or certify,
verify, or state) under penalty of perjury under the laws of the United States of
America that the foregoing is true and correct. Executed on (date). (Signature)'.").
Because the affidavits are unsworn, the Court cannot rely on them to resolve the
summary judgment motions. See Fed. R. Civ. P. 56(c)(4).
2 All ECF 26 citations are under seal.
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knees lacked redness or discoloring but had slight swelling. Id. at 168–69. She
informed Plaintiff to call if his symptoms did not subside. Id.
A few days later, on September 13, Plaintiff fell on a flight of stairs. Id. at 171.
After the fall, a nurse examined Plaintiff and noted that Plaintiff could move his arms
but complained of forehead pain. Id. Dr. Oliver ordered an EKG and x-ray for
Plaintiff. Id. at 171–72. And Plaintiff received Motrin for the pain. ECF 25-2, PgID
144; ECF 26, PgID 171–72.
But the Motrin did not help, and Plaintiff returned to Dr. Oliver later that day
complaining of head pain. ECF 26, PgID 175. Dr. Oliver then treated Plaintiff and
instructed Plaintiff that he would be observed for concussion symptoms. ECF 25-2,
PgID 144; ECF 26, PgID 175–78. Over time, the swelling in Plaintiff's forehead
subsided. ECF 26, PgID 177.
Dr. Oliver followed up with Plaintiff about his normal EKG results, and Dr.
Oliver noted that Plaintiff could move his extremities. ECF 25-2, PgID 144–45; ECF
26, PgID 175. Dr. Oliver told Plaintiff to return if any new problems arose. ECF 252, PgID 144–45; ECF 26, PgID 178.
The next day, Plaintiff complained about a headache, facial pain, blurred
vision, and dizziness. ECF 25-2, PgID 145; ECF 26, PgID 179. Nurse Smith contacted
Dr. Oliver who treated his pain with Tylenol and ordered an assistant to help Plaintiff
move in the prison. ECF 25-2, PgID 144–45; ECF 26, PgID 182, 186–87. Plaintiff
agreed to the treatment plan. ECF 25-2, PgID 144–45; ECF 26, PgID 182.
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The day after, Dr. Oliver reviewed Plaintiff's test results and noted that
although Plaintiff appeared normal, she would monitor him. ECF 25-2, PgID 144–45;
ECF 26, PgID 191. Plaintiff later submitted another complaint about neck and back
pain. ECF 26, PgID 193. And, as a result, another x-ray was ordered for Plaintiff.
ECF 26, PgID 187; ECF 26, PgID 194.
The next day, Nurse Smith evaluated Plaintiff for blurred vision and dizziness.
ECF 26, PgID 195. Nurse Smith noted that Plaintiff appeared otherwise normal. Id.
at 196–97. Two days later, Plaintiff met with another nurse who found that Plaintiff
had discomfort removing his shirt but that he could move his extremities freely and
walk with a cane. Id. at 199–201.
Plaintiff next requested, a day later, a wheelchair at his doctor's appointment.
Id. at 202. The healthcare professional who treated Plaintiff explained that she could
not issue wheelchairs, but that Plaintiff should try stretching and strength exercises.
Plaintiff again complained one day later about pain from his recent fall. Id. at
205. When PA Buskirk assessed Plaintiff, Plaintiff complained about knee pain and
headaches. ECF 25-3, PgID 149; ECF 26, PgID 207. PA Buskirk noted no
abnormalities in Plaintiff and recommended Tylenol, a warm compress, and gentle
stretching for treatment. ECF 25-3, PgID 149; ECF 26, PgID 210. PA Buskirk also
provided a walker for Plaintiff, but PA Buskirk declined to provide more treatment
because the x-rays showed no evidence of arthritis. ECF 25-3, PgID 149; ECF 26,
PgID 210, 214. Although Plaintiff told PA Buskirk that he had a history of seizures,
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Plaintiff declined to take the seizure medication that PA Buskirk offered. ECF 25-3,
PgID 149; ECF 26, PgID 210. PA Buskirk explained that he would monitor Plaintiff
for seizure symptoms. ECF 25-3, PgID 149; ECF 26, PgID 210
Plaintiff then visited PA Buskirk and complained that he had fallen while
using the walker. ECF 25-3, PgID 149; ECF 26, PgID 215. PA Buskirk noted that,
after the exam, Plaintiff could easily stand out of a wheelchair and walk using the
walker. ECF 25-3, PgID 149–50; ECF 26, PgID 215. PA Buskirk offered to issue
Plaintiff a different walker or to return his cane, but Plaintiff declined. ECF 25-3,
PgID 149–50; ECF 26, PgID 216.
About a month later, Plaintiff complained of knee and hip pain. ECF 26, PgID
234. Nurse Smith examined Plaintiff and noted that Plaintiff showed a shuffling gait
with a limp, but that Plaintiff had good flexion and extension of his lower extremities.
Id. at 235. Nurse Smith saw no swelling or discoloring. Id. Nurse Smith then referred
Plaintiff to a provider visit. Id.
Plaintiff later saw PA Buskirk who extensively examined Plaintiff's
extremities and range of motion. ECF 25-3, PgID 150–51; ECF 26, PgID 237–40.
During the exam, PA Buskirk noted that Plaintiff's had limited range of motion due
to pain, but Tylenol should continue to treat the pain and that Plaintiff should
continue to use a walker. ECF 25-3, PgID 150–51; ECF 26, PgID 239–40. PA Buskirk
believed that Plaintiff should use Tylenol rather than a non-steroidal, antiinflammatory drug so that Plaintiff could avoid worsening his gastrointestinal issues.
ECF 26, PgID 240.
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More than a month later, Plaintiff went back to PA Buskirk for an exam. ECF
25-3, PgID 151; ECF 26, PgID 249. PA Buskirk determined that Plaintiff's treatment
should remain the same because he had normal strength in his hips and should
continue his stretching and range of motion exercises. ECF 25-3, PgID 151; ECF 26,
At an exam two months later, PA Buskirk noted that Plaintiff's lower
extremities appeared normal aside from pain coming from his range of motion. ECF
25-3, PgID 1512; ECF 26, PgID 258–60. That exam was the last Plaintiff had with
The Court must grant a motion for 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 moving party must identify
specific portions of the record that "it believes demonstrate the absence of a genuine
issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the
moving party has met its burden, the non-moving party may not simply rest on the
pleadings but must present "specific facts showing that there is a genuine issue for
trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(emphasis omitted) (quoting Fed. R. Civ. P. 56(e)).
A fact is material if proof of that fact would establish or refute an essential
element of the cause of action or defense. Kendall v. Hoover Co., 751 F.2d 171, 174
(6th Cir. 1984). A dispute over material facts is genuine "if the evidence is such that
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a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). When considering a motion for summary
judgment, the Court must view the facts and draw all reasonable inferences "in the
light most favorable to the non-moving party." 60 Ivy St. Corp. v. Alexander, 822 F.2d
1432, 1435 (6th Cir. 1987) (citations omitted).
State employees sued in their individual capacities for monetary damages are
sometimes entitled to qualified immunity. Qualified immunity is "an immunity from
suit rather than a mere defense to liability[.]" Mitchell v. Forsyth, 472 U.S. 511, 526
(1985) (emphasis omitted). Only Nurse Smith asserted qualified immunity as a
defense. ECF 36, PgID 366; see ECF 25, PgID 133–37 (Dr. Oliver and PA Buskirk's
summary judgment brief).
Qualified immunity analysis requires a two-pronged inquiry. First, the Court
must consider whether the facts, "when taken in the light most favorable to the party
asserting the injury, show the [defendant's] conduct violated a constitutional right[.]"
Mullins v. Cyranek, 805 F.3d 760, 765 (6th Cir. 2015) (citing Saucier v. Katz, 533 U.S.
194, 201–02 (2001)). Second, the Court must determine whether the right was "clearly
established such 'that a reasonable official would understand that what he is doing
violates that right.'" Id. (quoting Saucier, 533 U.S. at 201–02).
The Court may use its discretion to determine which prong to analyze first. Id.
(citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)). Ultimately, "[p]laintiff bears
the burden of showing that defendants are not entitled to qualified immunity." Maben
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v. Thelen, 887 F.3d 252, 269 (6th Cir. 2018) (citation omitted). But "courts 'should not
grant summary judgment on the issue of qualified immunity if there exists a genuine
issue of material fact, involving an issue on which the question of immunity turns,
such that it cannot be determined before trial whether the defendant did acts that
violate clearly established rights.'" Jones v. Clark Cnty., 959 F.3d 748, 765 (6th Cir.
2020) (quotation omitted).
The Court will first grant qualified immunity to Nurse Smith on the deliberate
indifference claim because her conduct did not violate Plaintiff's constitutional rights.
Employing the same analysis, the Court will grant summary judgment on the
deliberate indifference claims against Dr. Oliver and PA Buskirk because their
conduct did not violate Plaintiff's constitutional rights. After, the Court will grant
summary judgment to Defendants on the ADA claims because the ADA does not
authorize a cause of action against Defendants.
Deliberate Indifference Claim
"To sustain a cause of action under § 1983 for failure to provide medical
treatment, plaintiff must establish that the defendants acted with 'deliberate
indifference to serious medical needs.'" Watkins v. City of Battle Creek, 273 F.3d 682,
686 (6th Cir. 2001) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). To show
deliberate indifference, Plaintiff must prove two prongs: one objective, the other
To satisfy the objective prong, Plaintiff must make one of two showings. Either
he had a serious medical condition that created a serious medical need that went
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untreated, Rhinehart v. Scutt, 894 F.3d 721, 737 (6th Cir. 2018) (citation omitted), or
he had ongoing treatment that was "so grossly incompetent, inadequate, or excessive
as to shock the conscience or be intolerable to fundamental fairness." Id. (citation
omitted). To satisfy the subjective prong, he must show that "each defendant
'subjectively perceived facts from which to infer substantial risk to the prisoner, that
he did in fact draw the inference, and that he then disregarded that risk' by failing to
take reasonable measures to abate it." Id. at 738 (citation omitted). The Court need
only address the objective prong here to grant Defendants' summary judgment
For the objective prong, after Plaintiff "had a medical need 'diagnosed by a
physician as mandating treatment,'" Plaintiff must show "that the prison failed to
provide treatment, or that it provided treatment 'so cursory as to amount to no
treatment at all.'" Rhinehart, 894 F.3d at 737 (quotations omitted). But Plaintiff
received treatment for his falls and pain. For that reason, Plaintiff appears to
complain that his treatment was inadequate. See ECF 29, PgID 291 (arguing that Dr.
Oliver "knew" that Plaintiff should have received better accommodations); id. at 293
(noting that PA Buskirk "knew, or he should have known" that asking Plaintiff to get
off the ground after the fall would cause more injury to Plaintiff); ECF 37, PgID 467
(explaining that Nurse Smith "knew, or she should have known" that moving
Defendant after his fall would cause further injury to Plaintiff).
Because Defendants—at different times—were regularly providing treatment
to Plaintiff, Plaintiff needed to "present enough evidence for a factfinder to evaluate
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the adequacy of the treatment provided and the severity of the harm caused by the
allegedly inadequate treatment." Rhinehart, 894 F.3d at 737. Specifically, Plaintiff
had to produce "'expert medical testimony . . . showing the medical necessity for' the
desired treatment and 'the inadequacy of the treatments' the [he] received." Id. at
737–38 (quotations omitted). Put differently, Plaintiff had to "'place verifying medical
evidence in the record to establish the detrimental effect' of the inadequate
treatment." Id. at 738 (quotation omitted).
But Plaintiff offered no medical evidence or opinion that would have created a
material fact about whether he received inadequate medical treatment. At its core,
Plaintiff recognized that Defendants treated him for his injuries, but Plaintiff wanted
different treatment. "Expressions of this sort, however, do not satisfy the
requirements of an Eighth Amendment claim." LaPine v. Corizon Inc., No. 18-cv10750, 2020 WL 5884710, at *4 (E.D. Mich. Mar. 31, 2020) (Murphy, J.); see also
Rhinehart, 894 F.3d at 744–45 ("'[F]orms of treatment' are generally 'a classic
example of a matter for medical judgment' that 'does not represent cruel and unusual
punishment.'") (quoting Estelle, 429 U.S. at 107).
In the end, "federal courts are generally reluctant to second guess medical
judgments and to constitutionalize claims that sound in state tort law." Graham, 358
F.3d at 385 (quotation omitted). Because Plaintiff offered no medical evidence to
satisfy the objective element of the deliberate indifference claims, no constitutional
violation occurred. The Court will therefore grant qualified immunity to Nurse Smith
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because there was no constitutional violation, and the Court will grant summary
judgment to Dr. Oliver and PA Buskirk.
The ADA prohibits "discrimination against persons with disabilities in three
major areas of public life: employment, which is covered by Title I of the statute;
public services, programs, and activities, which are the subject of Title II; and public
accommodations, which are covered by Title III." Tennessee v. Lane, 541 U.S. 509,
516–17 (2004). "Under the act's anti-retaliation provision, an employer may not
'discriminate against any individual because such individual has opposed any act or
practice made unlawful by [the ADA] or because such individual made a
charge . . . under [the ADA].'" Carson v. Ford Motor Co., 413 F. App'x 820, 822 (6th
Cir. 2011) (quoting 42 U.S.C. § 12203(a)).
Plaintiff offered an unusual argument for why Defendants are liable under the
ADA. Although it is unclear which ADA Title Plaintiff had sued under, Plaintiff
seemed to assert that he could sue Defendants in their individual capacities under
the ADA's "anti relation provision." ECF 29, PgID 296 (citing Shotz v. City of
Plantation, 344 F.3d 1161, 1179–80 (11th Cir. 2003) and Key v. Grayson, 163 F. Supp.
2d 697, 716–17 (E.D. Mich. 2001)); see also ECF 37, PgID 468 (Plaintiff's response
brief to Nurse Smith's summary judgment motion again asserting a claim under the
ADA's "'anti-relation' provision'" and citing Shotz and Key). Because Shotz and Key
involve the ADA's anti-retaliation provision, the Court will assume that Plaintiff
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made a misspelling and meant to bring his ADA claims under that provision. See
Shotz, 334 F.3d at 1179–80; Key, 163 F. Supp. 2d at 716–17.
The anti-retaliation ADA claim against Defendants readily fails. "The ADA's
prohibition on retaliation prevents an employer from 'discriminating against any
individual . . . .'" Sullivan v. River Valley Sch. Dist., 197 F.3d 804, 815 (6th Cir. 1999)
(alteration deleted) (emphasis added) (quoting 42 U.S.C. § 12203(a)). A person who
"does not independently qualify under the statutory definition of employers may not
be held personally liable in ADA cases." Id. at 808 n.1; see also EEOC. v. AIC Sec.
Investigations, Ltd., 55 F.3d 1276, 1282 (7th Cir. 1995) ("[I]ndividuals who do not
otherwise meet the statutory definition of 'employer' cannot be held liable under the
ADA."). Because Defendants worked as medical providers at Plaintiff's prison,
Defendants were employees—not employers under the ADA. ECF 25-2, PgID 144 (Dr.
Oliver); ECF 25-3, PgID 19 (PA Buskirk); ECF 36-3, PgID 454 (Nurse Smith).
Defendants are therefore entitled to summary judgment on the ADA claim because
the ADA lacks a cause of action authorizing Plaintiff to sue them.
In sum, the Court has granted summary judgment on all the claims. Because
Plaintiff is proceeding in forma pauperis, ECF 3, the Court will deny Plaintiff leave
to appeal in forma pauperis: he cannot take an appeal in good faith. Fed. R. App. P.
24(a); 28 U.S.C. § 1915(a)(3).
WHEREFORE, it is hereby ORDERED that the motions for summary
judgment [25 and 36] are GRANTED.
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IT IS FURTHER ORDERED that the Clerk of the Court must STRIKE
Plaintiff's addendum .
IT IS FURTHER ORDERED that leave to proceed in forma pauperis on
appeal is DENIED.
This is a final order that closes the case.
s/ Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
Dated: July 19, 2021
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on July 19, 2021, by electronic and/or ordinary mail.
s/ David P. Parker
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