Harrison v. Wellpath et al
Filing
113
OPINION AND ORDER Overruling 104 and 105 Objections, Sustaining in Part 103 Objections, Overruling 102 Objections, Adopting 101 Report and Recommendation, and Granting in Part and Denying in Part 73 Motion for Summary Judgment, 69 Motion for Summary Judgment and 68 Motion for Summary Judgment. Signed by District Judge Shalina D. Kumar. (THal)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MATTHEW HARRISON,
Plaintiff,
v.
NAPHCARE et al.,
Case No. 22-10187
Honorable Shalina D. Kumar
Magistrate Judge Kimberly G. Altman
Defendants.
OPINION AND ORDER OVERRULING DEFENDANTS WELLPATH AND
NAPHCARE’S OBJECTIONS (ECF NOS. 104, 105), SUSTAINING IN
PART DEFENDANT WASHINGTON’S OBJECTION (ECF NO. 103),
AND OVERRULING PLAINTIFF’S OBJECTIONS (ECF NO. 102);
ADOPTING REPORT AND RECOMMENDATION (ECF NO. 101); AND
GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT
(ECF NOS. 68, 69, 73)
I.
Introduction
Matthew Harrison, a pro se prisoner, filed this civil rights action
against defendants in January 2022. 1 ECF No. 1. In the consolidated
action, Harrison alleges that defendants Wellpath, NaphCare, Wayne
County, Aisha Freeman (“Freeman”), and Sheriff Raphael Washington
On June 30, 2023, this case was consolidated with another case filed by
Harrison. ECF No. 61; See Harrison v. Wellpath et al., Case No. 22-10335.
These actions arise out of Harrison’s detention at the Wayne County Jail
(“WCJ”) while he was a pretrial detainee.
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1
(“Washington”) were deliberately indifferent to his serious medical needs
regarding back pain, mental health medication, and dental issues, and that
defendants are liable for state-created danger by placing him with a
dangerous cellmate. ECF No. 1; ECF No. 7, Case No. 22-10335. This case
was referred to the magistrate judge for all pretrial matters. ECF No. 5.
II.
Background
On January 27, 2022, Harrison filed his first complaint. This complaint
alleged WCJ failed to adequately treat his back pain, regularly deprived
inmates of their evening dose of medication, and housed him with a
dangerous cellmate who sexually assaulted him. ECF No. 1 (Harrison I).
On February 14, 2022, Harrison filed another complaint regarding the
conditions of his confinement at WCJ alleging he received inadequate
dental care. ECF No. 1, Case No. 22-10335 (Harrison II). On May 11,
2022, he filed an amended complaint. Id. ECF No. 6. NaphCare moved to
consolidate the two cases (ECF No. 57), and the Court granted the motion
on June 30, 2023. ECF No. 61. On August 29, 2023, defendants filed their
motions for summary judgment. ECF Nos. 68, 29, 73. Harrison filed his
response (ECF No. 93) to all three motions and defendants timely replied.
ECF Nos. 97, 98, 99.
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On February 13, 2024, the magistrate judge issued a Report and
Recommendation (“R&R”) recommending that defendants’ motions be
granted in part and denied in part. ECF No. 101. The R&R recommends
that defendants are entitled to summary judgment on Harrison’s claims
regarding medications, back pain, and state-created danger (Harrison I),
but not his dental health claims (Harrison II). Id. The R&R also
recommends Freeman be granted summary judgment on all claims. Id. All
parties filed timely objections. ECF Nos. 102-05.
III.
Standard of Review
When objections are filed to a magistrate judge’s R&R on a
dispositive matter, the Court “make[s] a de novo determination of those
portions of the report or specified proposed finding or recommendations to
which objection is make.” 28 U.S.C. § 636(b)(1). The Court, however, “is
not required to articulate all of the reasons it rejects a party’s objections.”
Thomas v. Halter, 131 F. Supp. 2d 942, 944 (E.D. Mich. 2001) (citations
omitted). A party’s failure to file objections to certain conclusions of the
R&R waives any further right to appeal on those issues. See Smith v.
Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987).
Likewise, the failure to object to certain conclusions in the magistrate
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judge’s report releases the Court from its duty to independently review
those issues. See Thomas v. Arn, 474 U.S. 140, 149 (1985).
Moreover, objections must be clear so that the district court can
discern those issues that are dispositive and contentious. In sum,
the objections must be clear and specific enough that the court
can squarely address them on the merits. And, when objections
are merely perfunctory responses rehashing the same
arguments set forth in the original petition, reviewing courts
should review a Report and Recommendation for clear error.
Carroll v. Lamour, 2021 WL 1207359, at *2 (E.D. Mich. Mar. 31, 2021)
(internal citations, quotations, and marks omitted). Objections cannot raise
new arguments or issues not presented to the magistrate judge. Meddaugh
v. Gateway Financial Servc., 601 F. Supp. 3d 210, 213 (E.D. Mich. 2022)
(citing Murr v. United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000)).
IV. Objections
A. Harrison II Claims
Harrison alleges that Wellpath, NaphCare, Wayne County, and
Washington were deliberately indifferent to his dental health needs while he
was incarcerated at WCJ. Specifically, he contends that due to a WCJ
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“extraction only” policy 2 at least five of his teeth became unsalvageable.
See ECF No. 111, PageID.1507. The R&R determined that a prison
offering extraction of teeth in need only of fillings is not providing
constitutionally adequate care. ECF No. 101, PageID.1429 (citing Prichard
v. Mich. Dep’t of Corr., 2021 WL 698190, at *2 (E.D. Mich. Feb. 23, 2021)).
The R&R found that Harrison indisputably had cavities and broken fillings
while at WCJ and that WCJ offered only pain medication and tooth
extraction. Id. It thus concluded that defendants’ motion for summary
judgment on Harrison’s dental claims must be denied. Id. Wellpath,
NaphCare, and Washington object to this recommendation. ECF Nos. 103,
104, 105.
1.
Wellpath/NaphCare
Wellpath and NaphCare filed like objections to the recommendation
for Harrison’s dental claims. ECF Nos. 104, 105. Accordingly, the Court
considers them together.
Defendants do not dispute that, according to WCJ policy, surgical
extraction was the only procedure offered to Harrison for his decayed teeth
and damaged fillings. See ECF No. 68-2.
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2
a. Objection 1
Both Wellpath and NaphCare argue that the R&R erred by analyzing
Harrison’s allegations against them collectively. ECF Nos. 104, 105.
Wellpath provided dental care services until September 30, 2021, and
NaphCare took over those services on October 1, 2021, but the R&R
makes no distinction between the time periods. Id. They contend this error
is critical because Harrison “must state a plausible constitutional violation
against each individual defendant—the collective acts of defendants cannot
be ascribed to each individual defendant.” Id. at 1458, 1467 (citing Reilly v.
Vadlamudi, 680 F.3d 617, 626 (6th Cir. 2012)).
This argument is unavailing because, even if the R&R had parsed the
providers by their contractual dates of service and considered Wellpath and
NaphCare separately, Harrison sufficiently ascribed independent violative
conduct to each of them. Harrison alleged that problems with new cavities
and fillings arose in 2019 under Wellpath’s watch and all the way through
2023, when NaphCare was in charge. ECF No. 7, PageID.44-46; ECF No.
93, PageID.129; ECF No. 68-3, PageID.638-640. Harrison testified at
deposition that in June 2021, under Wellpath’s watch, he had cavities
which could be remedied with fillings. ECF No. 68-3, PageID.636. He also
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testified that during the five months he was out of WCJ in 2022, he treated
with a dentist about five times, addressing the most extensive damage to
salvageable teeth first. Id. at PageID.638. He was returned to WCJ before
he could revisit that dentist for the fillings he needed. Id. NaphCare did not
provide these fillings when he sought dental treatment upon his return to
WCJ. Id. This evidence, signifying that Harrison presented with treatable
tooth decay before and after NaphCare assumed responsibility for his
dental treatment, creates a genuine question of fact as to whether the
dental care provided to Harrison by Wellpath and by NaphCare each fell
short of constitutional requirements. Accordingly, Wellpath and NaphCare’s
first objection is overruled.
b. Objection 2
Wellpath and NaphCare’s second objection argues that the WCJ
extraction-only policy is constitutional on its face. The R&R rejected that
contention, finding that the authority cited to support that conclusion only
upheld policies that require extraction in lieu of root canal, not extraction
instead of filling or re-filling cavities. Because the objection does not
contest this finding, it is overruled.
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Wellpath and NaphCare also advance identical objections assailing
the R&R’s conclusion that WCJ’s extraction-only policy was
unconstitutional as applied. Specifically, they argue that restrictions
imposed by COVID-19 limited the dental procedures available at WCJ.
ECF Nos. 104, 105. Wellpath’s principal brief references COVID-19
restrictions for invasive procedures in May 2021. See ECF No. 73,
PageID.846. But neither Wellpath nor NaphCare argued that these
restrictions prevented dental care that otherwise would have been provided
before advancing that argument in their objections. Accordingly, the Court
need not consider this argument because it was never presented to the
magistrate judge before she issued the R&R.
Nevertheless, even if Wellpath or NaphCare had preserved their
argument by advancing it to the magistrate judge, the argument would fail.
As Harrison points out in his response to Wellpath and NaphCare’s
objection, there is no evidence to support their argument that, but for
COVID-19 restrictions, WCJ would have provided fillings or repaired
damaged ones. ECF No. 111, PageID.1504. Indeed, defendants have not
disputed the contrary evidence that the WCJ dental care policy offers only
extraction as a remedy. See ECF No. 68-2.
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Nor does COVID-19 and its exigencies automatically excuse WCJ
from providing the dental treatment otherwise mandated by constitutional
standards of necessary care. As Harrison notes, “even in a pandemic, the
Constitution cannot be put away and forgotten.” Roman Catholic Diocese of
Brooklyn v. Cuomo, 593 U.S. 14, 19 (2020). If a public health restriction
“strike[s] at the very heart” of the Bill of Rights, courts “have a duty to
conduct a serious examination of the need for such a drastic measure.” Id.
at 19-20. Because the magistrate judge was denied the opportunity to
conduct such an examination, the Court may not now appropriately conduct
one.
Finally, Wellpath and NaphCare’s attempt to use COVID-19 to
distinguish this case from Prichard—upon which the R&R relies to conclude
that WCJ’s refusal to provide treatment other than extraction for cavities—
is also unavailing. 2021 WL 698190. As in this case, the delay or denial of
treatment for Prichard’s decayed teeth stemmed in part from COVID-19imposed restrictions. Id. The Prichard court found that the more than twoyear delay of treatment was a cognizable claim for denial of necessary
care, notwithstanding that COVID-19 restrictions contributed to that delay.
See id.
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For these reasons, the Court overrules Wellpath and NaphCare’s
second objection.
2.
Washington
Washington objects to the R&R, which recommended against
dismissing him from the action. Washington argues he should be dismissed
because he had no direct personal involvement in Harrison’s dental
treatment. ECF No. 103. Washington also objects to the R&R’s conclusion
that he is not entitled to qualified immunity. Id.
The R&R does not address Washington’s arguments regarding his
personal involvement in the alleged violations of Harrison’s constitutional
rights. The Court agrees with Washington that Harrison did not allege or
present evidence of Washington’s direct personal involvement with the
alleged violations in this case, as is required to defeat a motion for
summary judgment on a claim brough against a government official in his
individual capacity. See Phillips v. Roane Cnty., 534 F.3d 531, 544 (6th Cir.
2008).
However, Washington may not be dismissed from this case in his
official capacity. “[A]n official capacity suit does not require a showing of
supervisory liability.” Leach v. Shelby Cnty. Sheriff, 891 F.2d 1241, 1246
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(6th Cir. 1989). Suits against an individual in his official capacity must show
that the plaintiff’s injuries were the result of some “policy or custom”
attributable to the municipality. See id. at 1256-46. There is no dispute that
the dental procedure program at issue here is a demonstrable WCJ policy.
On this basis, Harrison’s claims against Washington in his official capacity
survive Washington’s motion for summary judgment.
Accordingly, the Court sustains Washington’s objection as it relates to
Harrison’s claims against him in his individual capacity, and those claims
are dismissed. The remainder of the objection is overruled, and
Washington remains a defendant in his official capacity only.
B. Harrison I Claims
The R&R recommended defendants’ motions for summary judgment
be granted on Harrison’s claims against Wellpath and NaphCare for
deprivation of his psychiatric medications, as well as his claim against
NaphCare and Wayne County for housing him with a dangerous cellmate.
ECF No. 101, PageID.1420-21, 1429-32.
1.
Objection 1
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Harrison objects to the R&R’s recommendation to dismiss his
deprivation of medication claims against NaphCare. 3 ECF No. 102,
PageID.1439-41. Harrison asserts that the R&R erred by requiring that he
introduce verified medical evidence showing that the alleged denied
medical care—here, skipped doses of his medication—caused a serious
medical harm. See ECF No. 101, PageID.1431 (citing Daniels v. Tharp,
2020 WL 13561351, at *3 (6th Cir. 2020)). Harrison argues that his
discontinuation syndrome—the symptoms of withdrawal patients suffer
from the abrupt interruption to their dosage—is the type of claim that does
not require verified medical evidence to establish that his missed
medication caused serious harm. ECF No. 102, PageID.1439-41.
Harrison’s objection misunderstands the R&R’s conclusion regarding
Harrison’s missed medication doses. The R&R does not recommend
dismissal of Harrison’s missed medication claims because he failed to
introduce required verified medical evidence of his missed doses causing
serious medical harm. The R&R agreed with Harrison that “verif[ied]
medical evidence is not necessary to survive summary judgment if a
Harrison does not object to the recommendation to dismiss this claim
against Wellpath. ECF No. 102, PageID.1440.
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3
prisoner exhibits obvious manifestations of pain and injury such that even a
layperson would recognize a need for immediate treatment.” Daniels, 2020
WL 13561351, at *4 (cleaned up). The R&R concluded that evidence of
these “obvious manifestations of pain and injury” was lacking. See ECF No.
101, PageID.1432. In other words, the R&R did not recommend dismissal
of Harrison’s missed medication claims because he did not provide an
expert witness report or even medical records. Rather, it recommended
dismissal because Harrison had not supplied any evidence of his suffering
from the withdrawal symptoms which he cataloged in his objection: nausea,
disorientation, vertigo, loss of appetite, and head and stomach aches. The
Court finds no error in the R&R’s analysis and conclusion.
Accordingly, Harrison’s first objection is overruled.
2.
Objection 3 4
The R&R recommends dismissing Harrison’s claims against
defendants for housing him in a cell with a dangerous, unmedicated
inmate. Harrison objects to this recommendation because, he argues, it
The Court does not consider Harrison’s second objection to the
magistrate judge’s denial of his motion to appoint counsel because it does
not relate to this R&R. ECF No. 102, PageID.1441-42; see Case No. 4:22cv-10335, ECF No. 47.
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4
misconstrues his claims as against the individual defendants and not as a
Monell claim for Wayne County’s failure to protect him, a claim which he
contends he stated and supported. ECF No. 102, PageID.1442. Harrison’s
objection ignores the R&R’s explicit finding that his complaint failed to
allege or show “that there was a policy, practice, or custom of housing
detainees with dangerous or unmedicated cellmates” so as to state a viable
claim against Wayne County. ECF No. 101, PageID.1420-21.
As part of the objection, however, Harrison also argues that a
reasonable jury could find for him on his Monell claim for the failure to
protect him because WCJ has a custom of housing unmedicated mentally
ill inmates with the general population, “resulting in at least two fatalities in
the last 10 years, as Mr. Harrison has documented.” ECF No. 102,
PageID.1443.
To establish Monell liability for an alleged violation of a constitutional
right, a plaintiff must prove “(1) the existence of an illegal official policy or
legislative enactment; (2) that an official with final decision-making authority
ratified illegal actions; (3) the existence of a policy of inadequate training or
supervision; or (4) the existence of a custom of tolerance of or
acquiescence to federal rights violations.” Stewart v. City of Memphis, 788
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F. App’x 341, 344 (6th Cir. 2019) (cleaned up). To establish that the
municipality has ratified illegal actions, a plaintiff may prove that a
municipality has a pattern of inadequately investigating similar claims. Id.
(citing Leach, 891 F.2d at 1248). “Importantly, there must be multiple earlier
inadequate investigations and they must concern comparable claims.” Id. at
345.
To establish a custom of tolerance, a plaintiff must prove
1) the existence of a clear and persistent pattern of illegal activity;
2) notice or constructive notice on the part of the municipality; 3)
the municipality’s tacit approval of the unconstitutional conduct,
such that their deliberate indifference in their failure to act can be
said to amount to an official policy of inaction; and 4) that the
municipality’s custom was the moving force or direct causal link
in the constitutional deprivation.
Id. at 346-47. A custom of tolerance claim fails if the plaintiff fails to prove
any of the four elements. Id. at 347.
As evidence of WCJ’s pattern of ratifying or tolerating constitutional
violations, Harrison cites at least three other cases in which he claims a
WCJ inmate was injured or killed when placed in a cell with an
unmedicated schizophrenic cellmate. See, e.g., Est. of Fahner v. Wayne
Cnty., 797 F. Supp. 2d 816 (E.D. Mich. 2011), set aside by 2012 WL
1134743 (E.D. Mich. Apr. 4, 2012) (inmate was brutally beaten and later
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died in 2006 after being placed in a WCJ cell with an unmedicated
schizophrenic inmate); Richko v. Wayne Cnty., 819 F. 3d 907 (6th Cir.
2016) (WCJ inmate sustained serious injuries resulting in his death after he
was punched, kicked, stabbed with a pencil, and sodomized by his
unmedicated, schizophrenic cellmate in 2011); Burks v. Napoleon, 2019
WL 13110675 (E.D. Mich. Apr. 8, 2019) (known predatory inmate raped
plaintiff-cellmate when housed together in protective custody).
The circumstances in Burks, in which an inmate, who was not an
unmedicated schizophrenic, attacked a cellmate, are sufficiently different to
not be comparable for purposes of establishing a pattern of violative
activity. Fahner and Richko, however, both present similar, albeit more
extreme, circumstances to those alleged by Harrison—a general population
inmate assaulted when placed in a cell with an unmedicated schizophrenic.
Nevertheless, the Court finds that a reasonable jury could not conclude that
just two similar occurrences, five years apart and more than ten years
before the events alleged here, show a clear and persistent pattern of
Wayne County violating inmates’ constitutional rights by placing them in
cells with unmedicated schizophrenic prisoners. See Stewart, 788 F. App’x
at 347 (one instance of potential misconduct is insufficient to show a clear
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and persistent patter of constitutional violations); see also Lipman v.
Budish, 974 F.3d 726, 748 (6th Cir. 2020) (six different instances were
enough to draw reasonable inference that conduct represented widespread
custom known to policymakers); Smith v. Aims, 2022 WL 866398, at *8
(E.D. Mich. Mar. 23, 2022) (handful of wrongful incidents over the course of
a single day do not create a “clear and persistent pattern”). Nor do these
two instances suggest a pattern of multiple inadequately investigated or
disciplined claims to establish that Wayne County ratified such illegal
actions. Harrison’s failure to show a genuine issue of material fact
regarding the existence of a clear and persistent pattern of WCJ failing to
protect its inmates from unmedicated schizophrenic prisoners defeats his
Monell claim against Wayne County.
Accordingly, Harrison’s final objection is overruled.
V. Conclusion
For these reasons, the Court OVERRULES defendants Wellpath and
NaphCare’s objections (ECF Nos. 104, 105), SUSTAINS IN PART
defendant Washington’s objection (ECF No. 103), OVERRULES plaintiff’s
objections (ECF No. 102), ADOPTS the R&R (ECF No. 101), and
GRANTS IN PART and DENIES IN PART defendants’ motions for
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summary judgment (ECF Nos. 68, 69, 73). The Harrison I claims, as well
as the claims against defendant Freeman are DISMISSED. The Harrison II
claims against defendants NaphCare, Wellpath, Wayne County, and
Washington in his official capacity will proceed to trial.
Dated: March 27, 2024
s/ Shalina D. Kumar
SHALINA D. KUMAR
United States District Judge
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