Lowe v. Prison Health Service et al

Filing 85

ORDER Adopting Report and Recommendation 77 and Granting Defendants' Motion for Summary Judgment 65 . Signed by District Judge Terrence G. Berg. (DPar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DONALD LOWE,
v.

Plaintiff,

Case No. 13-10058
HON. TERRENCE G. BERG
HON. PATRICIA T. MORRIS

PRISON HEALTH SERVICE, INC. et al.,
Defendants.
/

ORDER ADOPTING REPORT AND
RECOMMENDATION (DKT. 77) AND GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. 65)
Plaintiff Donald Lowe (“Plaintiff”) is a prisoner in the custody of the
Michigan Department of Corrections. On January 8, 2013, Plaintiff filed a pro se
complaint (Dkt. 1) against Defendants Prison Health Services, Inc. (PHS) and Dr.
Adam Edelman, PHS’s “medical director for utilization management” (collectively
“Defendants”). Plaintiff alleges that Defendants were deliberately indifferent to his
serious medical needs, in violation of the Eighth Amendment’s proscription of cruel
and usual punishment, by denying his requests to continue to have his thyroid
condition treated by an outside medical specialist (Id.).
On October 31, 2014, Defendants filed a motion for summary judgment. On
April 7, 2015, Magistrate Judge Patricia Morris issued a report (Dkt. 77)
recommending that Defendants’ motion for summary judgment be granted.
Magistrate Judge Morris based her decision on the fact that Plaintiff had received

medical attention, including referrals to an outside specialist, and that Plaintiff’s
claims amounted to a disagreement with the prison doctors’ treatment decisions.
Accordingly, Magistrate Judge Morris concluded that Plaintiff had not established a
prima facie case of deliberate indifference under the Eighth Amendment, and
Defendants were consequently entitled to summary judgment.
Plaintiff filed lengthy objections, over 40 pages, (Dkt. 80) to Magistrate Judge
Morris’s report and recommendation. Plaintiff organizes his objections into three
sections, but none of the three is particularly distinct in content and nearly all
statements and arguments made by Plaintiff in each objection can be found in the
other two. Broadly speaking, Plaintiff’s three objections may be summarized as
follows: (1) that the facts in the Report and Recommendation are “overwhelmingly
in dispute, leaving out additional facts and evidence, of ongoing deliberate
indifference” (Dkt. 80, p. 3), and then Plaintiff repeats the allegations contained in
his Complaint and the argument contained in his response to Defendants’ motion
for summary judgment; (2) that Magistrate Judge Morris “failed in the Report and
Recommendation to distinguish, not only the two individual defendants, Dr. Adam
Edelman and Prison Health Service, but also failed to distinguish and separate the
two individual claims and cause of action against the two separate defendants, Dr.
Edelman and Prison Health Service. Magistrate Judge [Morris] failed to set forth
facts as to either defendant showing that there is no dispute of material facts, or
that there is no genuine issues for trial [sic]” (Dkt. 80, p. 10); and (3) that the
arguments contained in his objections 1 and 2 are meritorious enough to bear

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repeating, and that Plaintiff strongly objects to the Magistrate Judge’s conclusion
that “[P]laintiff received medical attention and is, in essence, filing suit because he
disagrees with certain treatment made by staff” (Id., p. 13-14).
I. FACTUAL BACKGROUND
The facts of this case have been recited in prior orders (Dkts. 47, 51), and
were accurately stated in Magistrate Judge Morris’s report and recommendation
(Dkt. 77). They are summarized as follows. Plaintiff alleges that in 2000 he had
serious medical problems with a swollen neck, which led to difficulty swallowing
(Dkt. 1, Compl. at 2). Plaintiff “kited” (sent a formal request through prison
channels) to see the prison doctor about his neck and was seen by Dr. Joseph
Burtch1 (Id.). Upon examination, Dr. Burtch placed a consultation request referral
into Defendant PHS for Plaintiff to see an outside specialist (Id.). This consultation
request was granted and Plaintiff saw Dr. Orandi – an endocrinologist – at the
Duane Waters Hospital in Jackson, Michigan (Id.). After performing numerous tests
(including a CT scan, blood tests, thyroid stimulating hormone (TSH) test, and an
ultrasound), Dr. Orandi diagnosed Plaintiff with multi-nodular goiter, with a
diffusely enlarged thyroid (Id.). At this time, Dr. Orandi also noted that Plaintiff
did not exhibit dysphagia (difficulty swallowing) or dysphonia (difficulty speaking)
(Dkt. 65, Ex. A, Edelman Affidavit ¶ 9). In other words, Dr. Orandi found that,
although Plaintiff’s thyroid was enlarged, there was no obstructive phenomenon
(Id.).

Dr. Orandi is the only off-site specialist Plaintiff saw for his thyroid. The other doctors and nurses
referred to in this opinion are prison health care providers.
1

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In 2004, Plaintiff was transferred to the Robert Cotton Correctional Facility
and, five months later, to the Mound Correctional Facility (Id. at 2–3). Upon his
arrival at the Mound Correctional Facility, Plaintiff was seen by the prison doctor
there (Id. at 3). Plaintiff alleges that he “complained” for two-to-three years about
his goiter and thyroid concerns, and that he needed to see an endocrinology
specialist, “but to no avail” (Id.).
On July 18, 2008, Plaintiff was taken to the emergency room at Detroit
Receiving Hospital where he was diagnosed as having an enlarged thyroid (Id. at 3).
The discharge notes indicate a conversation with Dr. Middlebrook who indicated
that if the emergency room doctor “made it clear on the discharge instructions that
[Plaintiff] needs endocrinology follow up, as well as ultrasound[,][t]his will be able
to be managed as an outpatient ... This patient is being discharged” (Id. at 3–4).
Plaintiff was then transferred from the Mound Correctional Facility to the
Brooks Correctional Facility (Id. at 4). On June 17, 2009, Plaintiff received an
offsite thyroid uptake scan at Mercy Hospital in Muskegon Michigan (Dkt. 65, Ex. A
¶12). The report on the thyroid uptake scan stated that Plaintiff had generalized
thyroid enlargement with multiple nodules bilaterally (Id.). However, the results
also indicated that his thyroid uptake results were “barely in the hyperthyroid
range” (Id.).
A progress note dated July 8, 2009 reflects that Plaintiff was scheduled for
a follow up appointment with Dr. Orandi on that date. The appointment was
cancelled by Plaintiff, as he had an attorney visit scheduled for that day (Id. ¶13).

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Plaintiff’s follow up visit with Dr. Orandi was re-scheduled for July 22, 2009
(Id. ¶14). At that visit, the consultation note reflects that Dr. Orandi explained that
Plaintiff’s goiter could be treated either medically (with thyroid medication) or with
radioactive iodine treatment (Id.). Plaintiff stated he preferred using oral
medication, and Dr. Orandi prescribed 5 mg of Tapazole three days a week with
follow up lab tests (Id.).
On August 20, 2009, Plaintiff was transferred to Saginaw Correctional
Facility (Id. ¶15). On September 11, 2009, a consultation request was submitted by
Dr. Burtch requesting that Plaintiff be evaluated for a follow-up visit with Dr.
Orandi based on the recommendation that Plaintiff be seen within 12 weeks of his
July, 2009 visit (Id. ¶16). The lab data at that time reflected that Plaintiff’s thyroid
levels were normal (Id.). On September 16, 2009, Defendant Dr. Edelman denied
the request to see Dr. Orandi for a third time, indicating that Plaintiff would be
treated onsite as appropriate (Id.). Dr. Edelman’s reasoning was that Plaintiff’s
thyroid levels were within normal range; his thyroid levels were being regularly
evaluated; he exhibited no symptoms that required an offsite visit; his goiter
condition was relatively benign; and his condition could be easily treated by an
onsite general practicing physician (Id.).
On January 28, 2010, Plaintiff submitted a health care kite that he was
having problems breathing and swallowing food due to his thyroid problem; he was
seen by a prison doctor the same day. After being examined by Dr. Malik, Plaintiff
made a second consultation request to PHS to see Dr. Orandi, within four weeks

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(Dkt. 1, Compl. at 4). Dr. Malik described signs and symptoms of Plaintiff's
diagnosis and supporting history:
Patient has a [history] of Bilateral Multinodular Goiter and was seen by
Endocrinologist on July 22, 2009 at Duane Waters Hospital (DWH) clinic by
Dr. Orandi, (Endocrinologist) and [follow-up] after 3 months was
recommended. Patient was placed on Tapazole 5 Mg three times per week.
Patient has been [ ]taking that since that time and his Goiter size has not
improved and gotten worse recently. Now he is complaining of difficulty
swallowing & breathing problems at night, laying on his back wakes him up
choking (Dkt. 1, Compl. at 4–5).
On February 4, 2010, Dr. Harriet Squier reviewed the January 28, 2010
consultation request and requested further information about the Tapazole
prescription, as Plaintiff was then “euthyroid” (i.e. had normal thyroid function) (Id.
¶20).
In April 2010, Plaintiff was transferred to Cooper Street Correctional
Facility (Id., ¶21). On May 12, 2010, Plaintiff was seen by Chin Yi, N.P. (Id.). Nurse
Yi reported that Plaintiff, at this time, had normal thyroid readings and was
currently euthyroid (Id.). Thus, Defendant PHS denied the consultation request to
see Dr. Orandi (Id.; see also Ex. H, PHS Denial).
On June 2, 2010, Plaintiff was seen by Dr. Mian Qayyum (Id. ¶22). Dr.
Qayyum reported that Plaintiff stated he was doing well and believed that the size
of his goiter may have decreased (Id.). Plaintiff denied any neck pain, and no other
symptoms were reported (Id.). The most recent lab tests continued to show
Plaintiff’s thyroid readings as normal (Id.).
On June 12, 2010, Plaintiff was seen for a follow up visit with Dr. Qayyum for
his goiter and thyroid condition (Id. ¶23). Plaintiff stated that he was not
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experiencing any difficulty breathing or swallowing (Id.). Plaintiff further reported
that since he has been on Tapazole he believed the right lobe of his thyroid had
receded in size (Id.). He was compliant with his medications and denied any side
effects, and thyroid level readings continued to be normal (Id.).
On August 2, 2010, Plaintiff was seen by Dr. Qayyum as follow up for his
thyroid condition (Id. ¶25). Dr. Qayyum noted that Plaintiff continued to decline
consideration of radiation treatment or surgery as treatment for his goiter (Id.). Dr.
Qayyum observed that Plaintiff was not exhibiting any obstructive symptoms (i.e.
difficulty breathing or swallowing) (Id.). Based on these observations, Plaintiff was
informed that he would not be re-referred to the endocrinology clinic and would
instead be followed at the on-site prison clinic (Id.).
On September 13, 2010, Plaintiff was seen by again Dr. Qayyum (Id. ¶26).
His thyroid readings continued to be normal (Id.). The right lobe of Plaintiff’s
thyroid had reduced in size and he did not exhibit any compressive symptoms (Id.).
On November 23, 2010, Plaintiff was seen by Dr. Milliner (Id. ¶27).
Based on Plaintiff’s continued normal thyroid levels, his Tapezole prescription
was discontinued (Id.). Dr. Milliner ordered that Plaintiff’s thyroid levels be
rechecked periodically to assure that he stayed euthyroid (Id.).
The medical records then contain approximately a one-year gap in their
discussion of Plaintiff’s thyroid. He did see various medical providers during this
time, but primarily concern numbness and tingling in Plaintiff’s left arm, shoulder
and cervical neck pain. In other words, conditions unrelated to this thyroid.

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The next reference to Plaintiff’s thyroid condition is dated December 9, 2011,
when a clinical progress note was entered by Barbara Miller, R.N. stating that
Plaintiff was evaluated for a health care kite in which he stated he could not
breathe or swallow food (Id. ¶28). Plaintiff presented with no apparent distress, so
Nurse Miller asked him if he was still experiencing these symptoms (Id.). The
records indicate that, “he just wanted to see a specialist about his thyroid; nodules
on his thyroid made him feel as if he couldn’t swallow food or breathe when in fact
he is able to do both” (Id.). There is no significant mention of Plaintiff’s thyroid
condition in the medical records before the Court throughout 2012. There are
records indicating that Plaintiff received treatment for neck, shoulder and foot pain,
as well as hypertension, but no complaints relating to his thyroid condition.
On February 28, 2013 Plaintiff complained of difficulty swallowing and heavy
breathing, and was seen by Ryan Mallo, N.P. (Dkt. 67 at 173). Plaintiff stated
“when am I going to get the treatment I need for my goiter,” but Nurse Mallo
reminded Plaintiff that he was regularly have lab testing done for this condition
(Id.). The records indicate that Plaintiff then became “argumentative and
abrasive,” and was asked to leave (Id.). Nurse Mallo did, however, order more lab
tests and instructed Plaintiff to send a medical kite if his condition became acute or
urgent (Id.).
On March 12, 2013, based on Plaintiff’s complaints of trouble swallowing
and some trouble breathing, Ronald Mingle, P.A. submitted a consultation request

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for a repeat ultrasound of the thyroid (Id. at 180). After review of the consultation
request, Dr. Harriet Squier recommended that Plaintiff be evaluated with a barium
swallow to determine the cause of any difficulties swallowing (Id. ¶31). Plaintiff
refused the barium swallow test, but the records indicate that he would send a
medical kite if he changed his mind (Id.).
III. ANALYSIS
A. Standard of Review
Summary judgment is appropriate when the record reveals that there are no
genuine issues as to any material fact in dispute and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c); Kocak v. Community Health
Partners of Ohio, Inc., 400 F.3d 466, 468 (6th Cir. 2005); Thomas v. City of
Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005). The standard for determining
whether summary judgment is appropriate is “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.” State Farm Fire & Cas. Co. v.
McGowan, 421 F.3d 433, 436 (6th Cir. 2005), quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251–52 (1986); see also Tucker v. Union of Needletrades Indus. &
Textile Employees, 407 F.3d 784, 787 (6th Cir. 2005). The court must consider all
pleadings, depositions, affidavits, and admissions on file, and draw all justifiable
inferences in favor of the party opposing the motion. See Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Twin City Fire Ins. Co. v.
Adkins, 400 F.3d 293, 296 (6th Cir.2005).

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Under Rule 56, a party asserting a fact that cannot be or is not genuinely
disputed must support that assertion by citing to particular parts of materials in
the record, including depositions, documents, electronically stored information,
affidavits or declaration, stipulations, admission, interrogatory answers, or other
materials; or a showing that the materials cited do not establish the absence or
presence of a genuine dispute or that an adverse party cannot produce admissible
evidence to support the fact. See Fed. R. Civ. P. 56(c)(1).
B. Deliberate Indifference
In the context of medical care, a prisoner’s Eighth Amendment right to be
free from cruel and unusual punishment is violated only when the prisoner can
demonstrate a “deliberate indifference” to his serious medical needs. Estelle v.
Gamble, 429 U.S. 97, 104–06 (1976). “Where a prisoner has received some medical
attention and the dispute is over the adequacy of treatment, federal courts are
generally reluctant to second guess medical judgments and to constitutionalize
claims that sound in state tort law.” Westlake v. Lucas, 537 F.2d 857, 860 n. 5 (6th
Cir. 1976) (citations omitted). Moreover, mere negligence in identifying or treating
a medical need does not rise to the level of a valid mistreatment claim under the
Eighth Amendment. See Estelle, 429 U.S. at 106.
A viable Eighth Amendment claim has two components, one objective and the
other subjective. See Farmer v. Brennan, 511 U.S. 825, 834 (1994); Comstock v.
McCrary, 273 F.3d 693, 702 (6th Cir. 2002). A court considering a prisoner’s Eighth
Amendment claim must ask both if the alleged wrongdoing was objectively harmful

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enough to establish a constitutional violation and if the officials acted with a
sufficiently culpable state of mind. See Hudson v. McMillian, 503 U.S. 1, 8 (1992).
Under the objective component, “the plaintiff must allege that the medical
need at issue is ‘sufficiently serious.’” Farmer, 511 U.S. at 834. Courts recognize
that “[b]ecause routine discomfort is part of the penalty that criminal offenders pay
for their offenses against society, only those deprivations denying the minimal
civilized measure of life’s necessities are sufficiently grave to form the basis of an
Eighth Amendment violation.” Hudson, 503 U.S. at 8 (internal citations and
quotation marks omitted). Similarly, “[b]ecause society does not expect that
prisoners will have unqualified access to health care, deliberate indifference to
medical needs amounts to an Eighth Amendment violation only if those needs are
‘serious.’” Id. at 9.
The subjective component requires that the defendant act with deliberate
indifference to an inmate’s health or safety. See Farmer, 511 U.S. at 834. To
establish the subjective component, “the plaintiff must allege facts which, if true,
would show that the official being sued 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 the risk.” Id. at 837. In other words, this prong is satisfied
when a prison official acts with criminal recklessness, i.e., when he or she
“consciously disregard[s] a substantial risk of serious harm.” Brooks v. Celeste, 39
F.3d 125, 128 (6th Cir. 1994) (citing Farmer, 511 U.S. at 839–40). “Basically, there
must be a knowing failure or refusal to provide urgently needed medical care which

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causes a residual injury that could have been prevented with timely attention.”
Lewis v. Corr. Med. Servs., 2009 WL 799249, at *2 (E.D. Mich. Mar. 24, 2009).
Regarding claims against a medical provider, in cases where an inmate
alleges deliberate indifference but the record demonstrates that the inmate received
medical attention and is, in essence, filing suit because he disagrees with certain
treatment decisions made by the medical staff, the plaintiff fails to state a claim
under the Eighth Amendment. See McFarland v. Austin, 196 Fed. App’x. 410, 411
(6th Cir. 2006) ( “as the record reveals that McFarland has received some medical
attention and McFarland's claims involve a mere difference of opinion between him
and medical personnel regarding his treatment, McFarland does not state a claim
under the Eighth Amendment”); White v. Corr. Med. Servs., Inc., 94 Fed. App’x. 262,
264 (6th Cir. 2004) (affirming dismissal of the complaint for failure to state a claim
where the essence of plaintiff's claims was that he disagreed with the defendants’
approaches to his medical treatment where defendant discontinued the plaintiff's
previous course of treatment and prescribed what the plaintiff considered to be less
effective treatment); Catanzaro v. Michigan Dep’t of Corr., 2010 WL 1657872, at *3
(E.D. Mich. 2010) (the plaintiff failed to state a claim of deliberate indifference
when “he specifically alleges that he was given medications that proved ineffective
to relieve his symptoms, rather than medications that he believed were more
effective, such as Drixoral, Sudafed and Deconamine”), adopted by 2010 WL
1657690 (E.D. Mich. 2010); Allison v. Martin, 2009 WL 2885088, at *7 (E.D. Mich.
2009) (the plaintiff failed to state a claim of deliberate indifference in violation of

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the Eighth Amendment when the complaint reveals the plaintiff was seen over a
dozen times for his eczema and was given medication, though not the “type” and
quantity he requested).
Defendants’ brief assumes, for purposes of the motion for summary judgment,
that Plaintiff’s thyroid disorder is a serious medical condition and thus primarily
maintains that Plaintiff has failed to satisfy the subjective component of the
deliberate indifference test. That is, even if Plaintiff can satisfy the objective prong
of the deliberate indifference test, the second element of Wilson requires a showing
that Defendants acted with deliberate indifference, which Plaintiff has not done.
“Deliberate indifference” has been variously defined by the federal courts that have
considered prisoners’ Eighth Amendment claims, but all agree that it is more than
mere negligence and less than actual intent in the form of “malicious” or “sadistic”
action. Farmer v. Brennan, 511 U.S. 825, 861 (1994); see also Estelle, 429 U.S. at
105–06 (a complaint that a physician has been negligent in diagnosing or treating a
medical condition does not state a valid claim under the Eighth Amendment;
“medical malpractice does not become a constitutional violation merely because the
victim is a prisoner”); Sanderfer v. Nichols, 62 F.3d 151, 154 (6th Cir. 1995)
(deliberate indifference is the equivalent of “criminal recklessness, which requires a
subjective showing that the defendant was aware of the risk of harm”); Gibson v.
Foltz, 963 F.2d 851, 853 (6th Cir. 1992) (“Obduracy or wantonness, not inadvertence
or good faith error, characterizes deliberate indifference.”).

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As noted in Estelle, “[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.” Id. at 106. An allegation of mere negligence in diagnosis or
treatment is not actionable under § 1983. Estelle v. Gamble, supra; Byrd v. Wilson,
701 F.2d at 595 n. 2. A delay in access to medical attention, however, can violate the
Eighth Amendment when it is “tantamount to ‘unnecessary and wanton infliction of
pain.’” Hill v. DeKalb Reg'l Youth Det. Ctr., 40 F.3d 1176, 1187 (6th Cir. 1994),
quoting Brown v. Hughes, 894 F.2d 1533, 1537 (11th Cir. 1990) (per curiam ).
Further, a claim of inadequate medical treatment may state a constitutional claim
if the treatment rendered is “so woefully inadequate as to amount to no treatment
at all.” Westlake v. Lucas, 537 F.2d 857, 860–61 (6th Cir. 1976). “A defendant must
purposefully ignore or fail to respond to a prisoner’s pain or possible medical need in
order for deliberate indifference to be established.” McGuckin v. Smith, 974 F.2d
1050, 1060 (9th Cir. 1992). The deliberate indifference standard requires knowledge
of the particular medical condition in order to establish an intent (“a sufficiently
culpable state of mind,” Wilson, 501 U.S. at 298) to deny or to delay purposely
“access to medical care” or intentionally to interfere “with the treatment once
prescribed.” Estelle, 429 U.S. at 104–05. Thus, “[k]nowledge of the asserted serious
needs or of circumstances clearly indicating the existence of such needs, is essential
to a finding of deliberate indifference.” Horn ex rel. Parks v. Madison Cnty. Fiscal
Court, 22 F.3d 653, 660 (6th Cir. 1994).

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Plaintiff claims that Defendants were deliberately indifferent because they
refused to refer him to an off-site specialist for a third consultation. In the view of
Magistrate Judge Morris, these facts merely presented a difference of medical
opinion, which does not generally fall within the scope of an Eighth Amendment
claim. See Thomas v. Coble, 55 Fed. App’x. 748, 749 (6th Cir. 2003) (“[Plaintiff] and
Dr. Coble clearly disagreed over the preferred medication to treat at [Plaintiff's]
pain. However, this difference of opinion does not support an Eighth Amendment
claim.”); see also Cuco v. Fed. Med. Center–Lexington, 2006 WL 1635668, *33 (E.D.
Ky. 2006) (The fact that the plaintiff's personal physician believed that the
treatment chosen by prison medical personnel was not an effective treatment
regimen does not matter. That is, even where a plaintiff's private physician
recommends a course of treatment for the plaintiff’s condition, a prison doctor’s use
of a different treatment regimen does not amount to deliberate indifference).
Given that the facts in this case clearly show that the Plaintiff received
consistent and attentive medical treatment for his thyroid, though not by the
specialist that he requested, this Court agrees with Magistrate Judge Morris’s
recommended decision. Magistrate Judge Morris correctly concluded that
Defendants were exercising their professional medical judgment in determining
how and when to treat Plaintiff; they did not ignore his complaints, they provided
medical treatment. Thus, Defendants were not deliberately indifferent to Plaintiff's
thyroid condition. Plaintiff’s objections, which largely just reiterate the arguments
he made in response to Defendants’ motion for summary judgment, but fail to point

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out any flaw in Magistrate Judge Morris’s reasoning, do not alter the fact that
Plaintiff has failed to show deliberate indifference and that Defendants are entitled
to summary judgment.
To review the record, in 2009, based on his report of difficulty swallowing,
Plaintiff was approved for an outside consultation with an endocrinologist. The
endocrinologist confirmed Plaintiff’s diagnosis of an enlarged thyroid and reported
that Plaintiff did not (at that time) suffer from difficulty swallowing or speaking
and had no obstructive phenomena (Dkt. 65, Ex. A, ¶9). After receiving multiple
tests on his thyroid, Plaintiff was seen for a follow up visit with the endocrinologist
who, after Plaintiff stated he did not want surgery or radioactive iodine treatment
on his thyroid, prescribed appropriate medications (Id. ¶14). At that visit, the
endocrinologist recommended a three-month follow-up visit (Id.).
Based on the fact that Plaintiff’s thyroid levels were within normal range; his
thyroid levels were being regularly evaluated by prison medical staff; he exhibited
no symptoms that required an offsite visit; his thyroid condition was relatively
benign and his condition could be treated by an onsite general practicing physician,
Defendant Dr. Edelman did not approve a third visit to the endocrinologist. On the
facts presented here, this decision does not appear to be unreasonable, and clearly
does not amount to criminal recklessness. Dr. Edelman concluded that Plaintiff
should continue to be seen by medical professionals on site for treatment of his
thyroid condition. This single denial of a third request to be seen by a specialist was
Dr. Edelman’s only apparent involvement in Plaintiff’s medical care.

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Plaintiff argues in his objections to Magistrate Judge Morris’s report and
recommendation that, over a period of many years, he has repeatedly complained of
difficulty swallowing and difficulty breathing. While the record includes some of
these complaints, the medical records before the Court show that these symptoms
have not been always been observed or confirmed in clinical examinations. Indeed,
multiple examinations revealed “no obstructive phenomena” and “no compressive
symptoms” (Id. ¶¶22, 23, 25, 26). Furthermore, the medical records show that
Plaintiff declined being evaluated for surgery, which Dr. Orandi indicated is the
recommended treatment if a goiter is blocking the airway or esophagus (Id. ¶32).
There are also indications in the medical records before the Court that Plaintiff
reported that he believed his goiter was decreasing in size and that he did not suffer
any obstructive symptoms (Id. ¶¶22, 23, 25, 26).
Perhaps most notably, the medical records indicate that Plaintiff chose not to
take a barium swallow test that could have conclusively determined if he suffered
from any obstructive symptoms related to his goiter (Id. ¶26). In sum, the medical
records reflect that Plaintiff was appropriately and consistently treated on site and
that his complaints of breathing or swallowing difficulties were regularly evaluated
by prison medical providers and, where necessary, by an outside specialist. There is
insufficient evidence in the record before that Court to raise a genuine issue of
material fact that Defendants, or any other medical provider, acted with the
necessary state of mind, more than negligence and less than intent, to constitute
deliberate indifference to Plaintiff’s serious medical needs when they declined to

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approve a third off-site evaluation of his goiter. Indeed, on this record, it there is
insufficient evidence to show that the medical professionals’ actions were negligent.
As such, the Court finds that Magistrate Judge Morris correctly recommended that
Defendants’ motion for summary judgment should be granted, and this
recommendation will therefore be adopted and the objections thereto overruled.
IV. CONCLUSION
For the reasons set forth above, Magistrate Judge Morris’s April 7, 2015
report and recommendation (Dkt. 77) is ACCEPTED AND ADOPTED as the
Court’s findings of fact and conclusions of law. Plaintiff’s objections (Dkt. 80) to the
report and recommendation are OVERRULED. Accordingly, Defendants’ motion
for summary judgment (Dkt. 65) is GRANTED and this case is DISMISSED
WITH PREJUDICE.
SO ORDERED.
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE

Dated: September 28, 2015

Certificate of Service
I hereby certify that this Order was electronically submitted on September
28, 2015, using the CM/ECF system, which will send notification to each party.

s/A. Chubb
Case Manager

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