Coleman v. Gullet et al

Filing 75

OPINION AND ORDER (1) Accepting and Adopting the Magistrate Judge's Reports and Recommendations 41 , 52 , (2) Denying Plaintiff's Motion for Default Judgment 37 , (3) Granting Defendants' Motions for Summary Judgment 20 , 26 , (4 ) Denying Plaintiff's Motion for Summary Judgment 34 , (5) Denying Plaintiff's Motion for Reconsideration 56 , (6) Overruling Plaintiff's Objections 57 , and (7) Denying as Moot Other Outstanding Motions 22 , 38 , 42 , 46 . Signed by District Judge Mark A. Goldsmith. (Chubb, A)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DEON COLEMAN,
Plaintiff,
v.

Civil Action No. 12-10099
HON. MARK A. GOLDSMITH

GULLET, et al.,
Defendants.
___________________/
OPINION AND ORDER (1) ACCEPTING AND ADOPTING THE MAGISTRATE
JUDGE’S REPORTS AND RECOMMENDATIONS (DKTS. 41, 52),
(2) DENYING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT (DKT. 37),
(3) GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT (DKTS. 20,
26), (4) DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (DKT. 34),
(5) DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION (DKT. 56),
(6) OVERRULING PLAINTIFF’S OBJECTIONS (DKT. 57), and
(7) DENYING AS MOOT OTHER OUTSTANDING MOTIONS (DKTS. 22, 38, 42, 46)
Plaintiff Deon Coleman, a state prisoner at Macomb Correctional Facility in New Haven,
Michigan, filed a pro se civil rights complaint under 42 U.S.C. § 1983 for alleged violations of
his constitutional and statutory rights. Defendants are the State of Michigan, an entity named
V.H.S. Healthcare, and various individuals employed by the Michigan Department of
Corrections (MDOC). Plaintiff claims that MDOC employees denied him adequate medical
treatment in violation of his constitutional rights under the First, Eighth, Eleventh, and
Fourteenth Amendments and his statutory rights under Title II of the Americans with Disabilities
Act, 42 U.SC. § 12101 et seq.
Before the Court are two Reports and Recommendations (R&R) issued by Magistrate
Judge Laurie J. Michelson. The first R&R, which was issued on July 30, 2012 (Dkt. 41),
recommends the denial of Plaintiff’s motion for default judgment (Dkt. 37). The second R&R,
which was issued on September 4, 2012 (Dkt. 52), recommends that the motions for summary

judgment of Defendants Bailey, Bergh, Crisenberry, Gidley, and Perea be granted. In addition, it
recommends (i) the sua sponte dismissal of Defendant Smith pursuant 28 U.S.C. §
1915(e)(2)(B)(ii) for failure to state a claim on which relief may be granted, (ii) the denial of
Defendant Smith’s motion for summary judgment as moot (Dkt. 22), and (iii) the denial of
Plaintiff’s motion for summary judgment as moot (Dkt. 34). Plaintiff has not filed objections to
the first R&R, but has filed objections to the second R&R (Dkt. 57).1 Plaintiff objects only to
the Magistrate Judge’s recommendation to dismiss Defendant Smith.

As to the other

recommendations made by the Magistrate Judge regarding Defendants Bailey, Bergh,
Crisenbery, Gidley, and Perea, Plaintiff does not object. Therefore, he has waived any further
right to contest rulings not relating to Defendant Smith. See Thomas v. Arn, 474 U.S. 140, 155
(1985) (explaining the operation of the Federal Magistrates Act in the context of conditioning the
statutory right to appeal by an appellate court). The Court reviews de novo those portions of the
R&R to which a specific objection has been made. Fed. R. Civ. P. 72(b)(3).
In Plaintiff’s objections, Plaintiff contends that the Magistrate Judge erred in her analysis
of Plaintiff’s administrative grievances against Defendant Smith, a nurse, and that Defendant
Smith was deliberately indifferent to his medical needs by forging a medical release preventing
him from receiving medical care in prison. Plaintiff argues that the Magistrate Judge erred
because an issue of material fact exists as to whether he administratively exhausted his
grievances against Defendant Smith. Pl.’s Objections at 1-3 (Dkt. 57). However, Plaintiff
overlooks a critical aspect of the Magistrate Judge’s R&R: the Magistrate Judge did not
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Plaintiff also filed a motion for reconsideration to the second R&R (Dkt. 56). Under
this Court’s local rules, a motion for rehearing or reconsideration must be filed after entry of a
judgment or an order. L.R. 7.1(h)(1). As there is no order or judgment for the Court to
reconsider, the motion is denied. However, the Court notes this motion contains the same
arguments as Plaintiff’s objections (the two filings are the same word-for-word, but have
different pagination). Therefore, the Court’s analysis of the objections applies to the arguments
asserted in the motion for reconsideration.
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recommend dismissal of Defendant Smith on exhaustion grounds. R&R at 15-16 (Dkt. 52)
(“The Court, however, need not decide this issue [of exhaustion]; an examination of Plaintiff’s
allegations against Smith presents a firmer basis for dismissal.”). Rather, the Magistrate Judge
recommended dismissal of Defendant Smith because Plaintiff failed to state a claim against her
for which relief could be granted. Id. at 16-24. After reviewing the R&R and the papers filed by
the parties, the Court agrees with the Magistrate Judge’s R&R that Plaintiff has failed to state a
claim for which relief can be granted against Defendant Smith.
Plaintiff also states in his objections that an allegedly forged medical release amounted to
deliberate indifference of his medical needs. Id. at 3-4, 6-8. The medical release, attached to
Plaintiff’s complaint and thoroughly reviewed in the R&R, has two sections, one to be completed
by care providers, the other to be completed by the patient. Compl. at 16 (Dkt. 1). The first
section states that another defendant, Morris, saw Plaintiff and informed him “to remain nonweight bearing on right foot.” Id. Morris’ and Defendant Smith’s signature appear at the bottom
of this section. Id. The second section states Plaintiff refused treatment and the reason for his
refusal was “because I don’t wanna.” Id. Morris’ signature appears at the bottom of this section.
There is a line for “Patient’s signature and MDOC Number,” but this line is blank. Id. The form
releases MDOC employees from “all responsibility for any ill effects” that result from an
inmate’s refusal of treatment. Id.
Plaintiff alleges that Morris and Defendant Smith forged the release by writing in his
name and his reason for refusing treatment. Id. at 3. Plaintiff misunderstands the release
because the information needed to complete the form – namely the names of the healthcare
providers, patient’s name, and the patient’s reason for refusing treatment – can be filled-in by
others. Clearly, Plaintiff never endorsed the statements of Defendant Smith and Morris because

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he never signed the release and a signature does not appear on the form in Plaintiff’s name that
he claims was signed by someone else to perpetrate fraud.
Furthermore, in his objections, Plaintiff argues that the forged medical release has
prevented his subsequent health care providers from interpreting his pleas for help as urgent. Id.
at 7. This is a new argument raised for the first time by Plaintiff in his objections to the R&R.
“It is well established that a party may not raise an argument, advance a theory, or marshal
evidence before a District Judge that was not fairly presented to the Magistrate Judge.” Marr v.
Foy, No. 07-908, 2010 WL 3061297, at *4 (W.D. Mich. Aug. 3, 2010) (citing Murr v. United
States, 200 F.3d 895, 902 n.1 (6th Cir.2000)). Because Plaintiff did not plead facts regarding
deliberate indifference by Defendant Smith in his complaint or raise deliberate indifference in his
response to Defendant Smith’s motion for summary judgment or in his own motion for summary
judgment, this argument is deemed waived.2
Plaintiff did not object to the other recommendations in the R&Rs and the time to do so
has expired. Plaintiff has waived any further right to contest those conclusions. Thomas, 474
U.S. at 154-155. In any event, the Court has reviewed the R&Rs and finds that Magistrate Judge
Michelson reached the correct results for the proper reasons. Accordingly, (1) both R&Rs (Dkts.
2

Plaintiff’s claim for deliberate indifference also fails on the merits. In order to find
deliberate indifference, a plaintiff needs to present “evidence tending to establish that the
[medical provider] is present while the inmate is in distress, that distress is communicated to the
[medical provider], and the [medical provider] purposefully ignores the distress knowing that an
adverse outcome is likely to occur.” Jones v. Muskegon Cnty., 625 F.3d 935, 945 (6th Cir.
2010). While the evidence tends to show that Defendant Smith saw Plaintiff and Plaintiff
communicated his distress to her, the evidence does not tend to show that Defendant Smith
ignored Plaintiff’s distress. For example, grievance responses completed by Defendant Smith
indicate that Plaintiff’s medication was adjusted and that he received “all medical care
necessary” during the time Plaintiff was incarcerated at the Charles Egeler Reception and
Guidance Center (RGC), a maximum security health care center. Compl. at 14-15 (Dkt. 1).
Plaintiff was then transferred to Mound Correctional Center on August 18, 2011 and no longer
saw Defendant Smith. See id. at 7, 25 (indicating transfer to new facility). Since the transfer
from RGC, Plaintiff has continued to receive care. See, e.g., id. at 15, 25, 28-33, 44.
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41 and 52) are accepted and adopted as the findings and conclusions of the Court; (2) Plaintiff’s
motion for default judgment (Dkt. 37) is denied; (3) the motions for summary judgment by
Defendants Bailey, Bergh, Crisenberry, Gidley, and Perea are granted (Dkts. 20 and 26); (4)
Plaintiff’s motion for summary judgment (Dkt. 34) is denied; (5) Defendant Smith’s motion for
summary judgment (Dkt. 22) is denied as moot, (6) Plaintiff’s request pursuant to Federal Rule
of Civil Procedure 11 to impose a deterrence remedy against Bailey, Crisenbery, and Smith (Dkt.
38) is denied as moot; (7) Defendants Bailey, Bergh, and Crisenbery’s motion to stay discovery
(Dkt. 42) is denied as moot; and (8) Plaintiff’s request for default judgment against Bailey,
Bergh, Crisenbery, and Smith for failure to comply with discovery (Dkt. 46) is denied as moot.
SO ORDERED.
Dated: November 29, 2012
Flint, 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 November 29, 2012.
s/Amanda Chubb for Deborah J. Goltz
DEBORAH J. GOLTZ
Case Manager

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