Pugh v. Holden-Selby et al

Filing 67

ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION [# 63], DENYING DEFENDANT HUNTERS MOTION FOR SUMMARY JUDGMENT [#40]AND GRANTING DEFENDANT ENGSTROMS MOTION TO DISMISS, OR IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT [#47] Signed by District Judge Gershwin A. Drain. (Bankston, T)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TERRANCE PUGH,
Plaintiff,

Case No. 12-cv-12357
HON. GERSHWIN A. DRAIN

v.

KELLY HOLDEN-SELBY, et al.,
Defendants,
_____________________________________/
ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION [# 63],
DENYING DEFENDANT HUNTER’S MOTION FOR SUMMARY JUDGMENT [#40]
AND GRANTING DEFENDANT ENGSTROM’S MOTION TO DISMISS,
OR IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT [# 47]
I.

INTRODUCTION
On May 31, 2012, Plaintiff, Terrance Pugh, a Michigan state prisoner, filed this § 1983

civil rights action asserting an Eighth Amendment denial of medical care claim, a First
Amendment Retaliation claim, and state law claims against Kelly Holden-Selby, Jenny
Engstrom, Richard Cady, Joyce Hunter, Debra Scutt, and Richard Miles1, all employees at the
Michigan Department of Correction’s (MDOC) G. Robert Cotton Correctional Facility. Before
the Court is a report and recommendation by Magistrate Judge Charles Binder, dated August 20,
2013. See Dkt. No. 63. Magistrate Judge Binder recommends granting Defendant Engstrom’s
Motion to Dismiss and denying Defendant Hunter’s Motion for Summary Judgment. On August
27, 2013, Defendant Hunter filed an objection to the magistrate judge’s report and
recommendation. See Dkt. No. 64. On August 29, 2013, Plaintiff filed objections to the

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  Defendants Debra Scutt, Richard Miles, Kelly Holden-Selby, and Richard Cady have been

dismissed from this cause of action. See Dkt. Nos. 7, 30, and 62.

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magistrate judge’s report and recommendation. See Dkt. No. 65. On September 5, 2013, Plaintiff
filed an objection to Defendant Hunter’s objection to the magistrate judge’s report and
recommendation. See Dkt. No. 66. For the reasons set forth below, the Court accepts and adopts
Magistrate Judge Binder’s report and recommendation, overrules Defendant Hunter’s objections,
denies Defendant Hunter’s Motion, overrules Plaintiff’s objections, and grants Defendant
Engstrom’s Motion.
II.

PROCEDURAL AND FACTUAL HISTORY
The incidents giving rise to this action began on April 13, 2011, when Plaintiff was

transferred to the G. Robert Cotton Correctional facility. Upon his arrival at the facility, he was
assigned to an upper-level, top bunk cell. Plaintiff told the officers at the facility that he had a
medical order requiring him to receive a ground-floor, bottom bunk cell because of a broken
foot, but Defendants did not switch Plaintiff’s assignment. Plaintiff filed grievance number JCF11-05-0889-03f after this incident, alleging that Defendant Holden-Selby “disrespected” him by
telling him he should lose weight. On May 9, 2011, Plaintiff fell down about five or six stairs,
causing injury to his back and reinjuring his foot. Plaintiff was brought to the hospital because of
the injury, and when he returned to the facility, he was reassigned to Level IV housing from
Level II housing because there was no available cell in Level II to accommodate Plaintiff.
Plaintiff contends that there were appropriate cells available and that the reassignment
was in retaliation for prior complaints. Plaintiff was moved back to Level II housing once space
was made available. Because of this reassignment, Plaintiff filed grievance number JCF-11-050890-21c, where he complained that the transfer was cruel and unusual punishment.
Plaintiff was subsequently issued a wheelchair because of his injury. Shortly after
receiving the wheelchair one of the wheels broke, leaving only three working wheels. Plaintiff

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informed the officials at the facility that the chair was broken, but there was no replacement
available, and it could not be fixed on site. The officials informed Plaintiff that he could either
stop using the wheelchair or he could use it with three wheels. Plaintiff filed grievance number
JCF-11-07-1495-12i3, where he alleged that leaving him with a broken wheelchair that “[caused
his] ribs to hurt from being stuffed in it” was a form of cruel and unusual punishment. Because
the wheelchair was broken, Plaintiff fell and injured himself and was brought to the hospital once
again. The medical records show that Plaintiff suffered a mild concussion as a result of this
accident.
On July 29, 2011, Plaintiff was issued a medical detail to receive meals in his cell
because of his injury and inoperable wheelchair. The detail was scheduled to expire on August 5,
2011, but was cancelled by Defendant Hunter on August 3, 2011. Plaintiff received a
replacement wheelchair on August 5, 2011. Plaintiff claims that he missed meals during this
period and the missed meals were a form of cruel and unusual punishment.
Plaintiff also filed a number of other grievances, but they are irrelevant to the matters
presently before this Court.
III.

ANALYSIS

A. Standard of Review
The standard of review to be employed by the Court when examining a report and
recommendation is established in 28 U.S.C. § 636. This Court “shall make a de novo
determination of those portions of the report or specified proposed findings or recommendations
to which objection is made.” 28 U.S.C. § 636(b)(1)(C). This Court “may accept, reject or
modify, in whole or in part, the findings or recommendations made by the magistrate.” Id.

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B. Report and Recommendation Regarding Defendant Hunter’s Motion for Summary
Judgment [# 40]
The magistrate judge recommended that Defendant Hunter is not entitled to summary
judgment because the evidence is not so one-sided that one party must prevail as a matter of law.
The Court agrees with the magistrate judge’s conclusions. The evidence offered by both parties
presents a sufficient disagreement to require submission to a fact finder. Therefore, the
magistrate judge properly concluded that Defendant Hunter’s Motion for Summary Judgment
should be denied.
Defendant Hunter argues that Plaintiff has not established an Eighth Amendment
violation. The Supreme Court held in Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d
251 (1976), that the deliberate indifference to serious medical needs of prisoners constitutes
unnecessary and wanton infliction of pain in violation of the Cruel and Unusual Punishment
Clause of the Eighth Amendment to the U.S. Constitution. Id. at 104-05. The Court explained
that “[i]n order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently
harmful to evidence deliberate indifference to serious medical needs. It is only such indifference
that can offend ‘evolving standards of decency’ in violation of the Eighth Amendment.” Id. at
106.
A claim of deliberate indifference encompasses both an objective and a subjective
element. Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994);
Wilson v. Seiter, 501 U.S. 294, 298, 111 S. Ct. 2321, 115 L. Ed. 2d 271 (1991). The objective
inquiry asks whether the deprivation was sufficiently serious and the subjective component asks
whether the officials acted with a sufficiently culpable state of mind. Wilson, 501 U.S. at 298.
The state of mind required for the subjective inquiry is one that evinces “deliberateness
tantamount to intent to punish.” Miller v. Calhoun County, 408 F.3d 803, 813 (6th Cir. 2005)
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(quoting Horn v. Madison County Fiscal Court, 22 F.3d 653, 660 (6th Cir. 1994)). Mere
negligence will not suffice. Daniels v. Williams, 474 U.S. 327, 330-33, 106 S. Ct. 662, 88 L. Ed.
2d 662 (1986). In other words, it must be shown that “the defendant was aware of the risk of
harm.” Sanderfer v. Nichols, 62 F.3d 151, 154 (6th Cir. 1995) (citing Farmer v. Brennan, 511
U.S. 825, 114 S. Ct. 1970, 1979, 128 L. Ed. 2d 811 (1994)). The government 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.” Farmer, 511 U.S. at 837. Finally, the government
official must have “disregarded that risk.” Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir.
2001).
Plaintiff claims that Defendant Hunter was deliberately indifferent to his serious medical
needs when she cancelled his in-cell meal detail. Defendant Hunter was aware that Plaintiff was
under medical orders to use a wheelchair for distance travel until September 16, 2011, and that
Plaintiff did not have an operable wheelchair on August 3, 2011 when she cancelled the in-cell
meals. Defendant Hunter, in her affidavit, states that the meal detail was issued by an RN
without an appropriate evaluation and the issuance was not within the RN’s range of duties. See
Dkt. No. 40, Ex A. Defendant Hunter further states that she believed that Plaintiff “could walk
from his housing unit to the chow hall and therefore in-cell meals were unnecessary.” Id. It is
unclear from the record why the RN could not issue the in-cell meal detail or why Defendant
Hunter is better qualified to evaluate Plaintiff’s ability to walk. The identification of the distance
between Plaintiff’s cell and the chow hall may aid in the determination of the reasonableness of
Defendant Hunter’s actions; however, neither party has brought this distance to the Court’s
attention. A reasonable jury could infer deliberate indifference based on Defendant Hunter’s
actions.

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C. Defendant Hunter’s Objection [# 64]
Defendant Hunter raises one objection, which mischaracterizes the reason that the
magistrate judge recommended denying her Motion for Summary Judgment. The objection states
that it was erroneous for the magistrate judge to conclude that Plaintiff’s in-cell meal detail did
not have a stop date. The Report states that medical records submitted by Defendant Hunter
indicate that the in-cell meals were ordered by a registered nurse March 23, 2011 and there was
no stop date for the detail. This is incorrect; page 7 of Document 41 indicates that an in-cell meal
detail was cancelled on March 23, 2011, the date that the detail started is not indicated. (ID 444).
This error was harmless and its reference in the Report is irrelevant, because the in-cell meal
detail that is the subject of Plaintiff’s claim against Defendant Hunter is the detail that was issued
on July 29, 2011.
Defendant Hunter also argues that Plaintiff only missed two (2) meals due to the
cancellation of the in-cell detail. While Plaintiff concedes to receiving breakfast on August 3,
2011, Defendant Hunter’s own affidavit indicates that Plaintiff did not receive a replacement
wheelchair until August 5, 2011. See Dkt. No. 40, Ex. A. Therefore; assuming Plaintiff was
given his new wheelchair in time for breakfast on August 5th, 2011, Plaintiff missed five (5)
consecutive meals during this period.
Defendant Hunter argues that the missed meals cannot constitute an Eighth Amendment
violation relying on Davis v. Miron, No. 12-1238, 502 F. App'x 569 (6th Cir. Oct. 23, 2012). In
Davis, a prisoner was denied seven meals over six days and the Sixth Circuit using one sentence
stated “the alleged deprivation d[id] not rise to the level of an Eighth Amendment violation.” Id.
at 570. The present case is distinguishable.

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The Davis court relied upon Cunningham v. Jones, 667 F.2d 565 (6th Cir. 1982). In
Cunningham, the Sixth Circuit affirmed a district court’s ruling that one meal a day was
sufficient to maintain normal health. The defense in Cunningham presented evidence that the one
meal served possessed between 2,000 and 2,500 calories and the plaintiff offered no evidence to
rebut the defense’s assertion. The present case is distinguishable for two reasons. First, Plaintiff
missed at least five (5) consecutive meals. Second, Defendant Hunter has not produced any
evidence that the breakfast consumed by Plaintiff on August 3, 2011 was sufficient to maintain
his health until August 5, 2011. Given the factual differences Defendant Hunter is not entitled to
Summary Judgment on this issue.
To the extent that Defendant Hunter argues that Plaintiff has failed to demonstrate that
she possessed a culpable state of mind, summary judgment is still improper. To show deliberate
indifference the government 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.”
Farmer, 511 U.S. at 837. Finally, the government official must have “disregarded that risk.”
Comstock, 273 F.3d at 703. Defendant Hunter was aware that Plaintiff was under medical orders
to use a wheelchair for long distances and that Plaintiff had no wheelchair when she cancelled
his in-cell meal detail. Defendant Hunter’s conduct raises issues of fact to be decided by a jury.
Accordingly, based on the foregoing reasons, Defendant Hunter’s objection is overruled.
Defendant Hunter’s Motion for Summary Judgment is denied and the report and
recommendation is accepted and adopted.
D. Plaintiff’s Objection to Defendant Hunter’s Objection [# 66]
Plaintiff filed an objection to Defendant Hunter’s objection. Defendant Hunter’s
objection is overruled; therefore Plaintiff’s objection is moot.

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E. Report and Recommendation Regarding Defendant Engstrom’s Motion to Dismiss,
or in the Alternative, for Summary Judgment [# 47]
The magistrate judge recommended that the court grant Defendant Engstrom’s Motion
for Summary Judgment because Plaintiff failed to exhaust his administrative remedies with
regard to his allegations against Defendant Engstrom. Plaintiff successfully exhausted his
administrative remedies as to seven grievances; however, none of the properly exhausted
grievances relate to any claims raised against Defendant Engstrom. Therefore, the magistrate
judge properly concluded that Defendant Engstrom’s Motion for Summary Judgment should be
granted.
Prisoner civil rights claims like the present claim are subject to the Prison Litigation
Reform Act. This act states that “[n]o action shall be brought with respect to prison conditions
under § 1983… 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). In order to
exhaust a claim, the prisoner must follow all of the steps of his correctional facility’s grievance
process, because he “cannot abandon the process before completion and claim that he exhausted
his remedies.” Hartsfield v. Vidor, 199 F.3d 305, 309 (6th Cir. 1999). Prisoners must properly
exhaust their claims, which means complying with the facility’s “deadlines and other critical
procedural rules.” Woodford v. Ngo, 548 U.S. 81 (2006).
The Michigan Department of Corrections’ procedure for grievances has three official
steps. See MDOC Policy Directive (“PD”) 03.02.130 (eff. July 9, 2007). Prior to filing a
grievance, an inmate must attempt to verbally resolve the dispute with those involved within two
days. MDOC PD 03.02.130(P). If the attempt is impossible or unsuccessful, the inmate must
submit a Step I grievance form within five days. MDOC PD 03.02.130(v). If the grievance is
accepted, the prison staff is required to respond in writing within fifteen days. MDOC PD
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03.02.130(X). If the inmate is not satisfied with the result, or did not receive a response, he must
file a Step II appeal within ten business days. MDOC PD 03.02.130(BB). If the inmate is not
satisfied with the response or does not receive a response within fifteen days, he must submit a
Step III appeal to the Prisoner Affairs Section. MDOC PD 03.02.130(FF). Once he has filed the
Step III appeal, the prisoner has completed the administrative grievance process and fully
exhausted his remedies.
None of the seven properly exhausted grievances accuse Defendant Engstrom of taking
or participating in any action resulting in harm to Plaintiff. In order to state a claim pursuant to §
1983, Plaintiff must demonstrate that a person acting under color of state law deprived him of his
federal rights. 42 U.S.C. § 1983. It is not enough for Plaintiff to merely allege a constitutional
violation without support from material facts. See Gutierrez v. Lynch, 826 F.2d 1534, 1539 (6th
Cir. 1987). Plaintiff must show that each Defendant, through their own actions, violated the
Constitution. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). The only wrongful act alleged
against Defendant Engstrom is that her response to his grievance was “full of blatant lies and
coverups….” This allegation does not amount to a constitutional violation. See Lee v. Mich.
Parole Bd., No. 03-1775, 104 F. App’x 490, 493 (6th Cir. June 23, 2004) (Section 1983 liability
may not be imposed simply because a defendant denied an administrative grievance or failed to
act based upon information contained in a grievance.”); see also Laster v. Pramstaller, No. 5:08cr-10898, 2011 U.S. Dist. LEXIS 115154, *20-24 (E.D. Mich. Sept. 7, 2011) (collecting cases).
F. Plaintiff’s Objections to Report and Recommendation [# 65]
Plaintiff raises six objections. The Court finds that none of the objections have merit;
therefore, his objections are overruled.

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Plaintiff’s first objection concerns grievance number JCF-11-05-0807-17e. This objection
discusses the problems between Plaintiff and Defendant Holden-Selby.2 Plaintiff admits that
Defendant Engstrom is not mentioned in the body of the grievance and that “the two didn’t meet
and discuss said issues.” (ID 588). Due to Plaintiff’s own admission this objection is irrelevant.
Plaintiff’s second objection concerns grievance number JCF-11-05-0890-21c. This
objection states that Defendant Engstrom “signed off for an increase in the plaintiff’s level of
custody… this was… a form of cruel and unusual punishment…” (ID 588). The grievance itself
does not accuse Defendant Engstrom of participating in the increase in Plaintiff’s level of
custody. In fact, Defendant Engstrom is not mentioned in the body of the grievance at all.
Therefore, this objection is overruled.
Plaintiff’s third objection concerns grievance number JCF-11-05-0889-03f. This
objection accuses Defendant Engstrom of having knowledge of all of Plaintiff’s problems.
Again, Defendant Engstrom is not mentioned in the body of the grievance; therefore, the
objection is irrelevant.
Plaintiff’s fourth objection concerns grievance number JCF-11-07-1495-12-i3. Plaintiff
states that this grievance does not pertain to Defendant Engstrom; therefore, the objection is
irrelevant.
Plaintiff’s fifth objection concerns grievance number JCF-11-05-0895-27a. This
objection accuses Defendant Engstrom of covering up for a co-worker in violation of 18 U.S.C. §
1001. This grievance was not discussed within or attached to Plaintiff’s complaint. Nor was it
addressed by Magistrate Judge Binder or listed in the MDOC Prisoner Step III Grievance Report.
See Dkt. No. 21, Ex. B. Plaintiff does not indicate why this grievance has not been previously
introduced. Plaintiff has not attached a copy of the grievance to his objections for review by the

2

  Defendant Holden-Selby’s Motion for Summary Judgment was granted on July 22, 2013.   

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Court. In any event, the time to introduce a new grievance in support of his claims elapsed prior
to the magistrate judge’s report. Therefore, this objection is irrelevant.
Plaintiff’s sixth objection concerns grievance number JCF-11-0021560-17b. This
grievance was not discussed within or attached to Plaintiff’s complaint. Nor was it addressed by
Magistrate Judge Binder or listed in the MDOC Prisoner Step III Grievance Report. See Dkt. No.
21, Ex. B. Plaintiff does not indicate why this grievance has not been previously introduced.
Plaintiff likewise failed to attach a copy of the grievance to his objections, however even if he
had provided the Court with the grievance identified in his sixth objection, the time to introduce
the grievance in support of his claims elapsed prior to the magistrate judge’s report. Therefore,
this objection is irrelevant.
IV.

CONCLUSION
For the reasons set forth above, Magistrate Judge Charles Binder’s report and

recommendation [#63] is accepted and adopted as this Court’s factual and legal conclusions.
Defendant Hunter’s Motion for Summary Judgment [#40] is DENIED. Defendant
Engstrom’s Motion for Summary Judgment [#47] is GRANTED. Defendant Engstrom is
dismissed from this cause of action.

SO ORDERED.
Dated: October 30, 2013
/s/Gershwin A Drain
GERSHWIN A. DRAIN
UNITED STATES DISTRICT JUDGE

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