Titlow v. Corrections Medical Services, Incorporated et al

Filing 164

OPINION AND ORDER granting in part and denying in part 147 Motion for Summary Judgment; denying 153 Motion for Summary Judgment. Signed by District Judge John Corbett O'Meara. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

VONLEE NICOLE TITLOW,
Case No. 07-12083
Plaintiff,
Honorable John Corbett O’Meara
v.
CORRECTIONAL MEDICAL SERVICES, INC.;
CRAIG HUTCHINSON, M.D.; KEITH IVENS,
M.D.; GREGORY NAYLOR, M.D.; JEFFREY
STIEVE, M.D.; HARESH PANDYA, M.D.;
CRYSTAL RICE; and CRAIG WITHROW,
Defendants.
/
OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART THE CMS DEFENDANTS' MOTION
FOR SUMMARY JUDGMENT, DENYING THE STATE DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT, AND GRANTING SUMMARY JUDGMENT TO
DEFENDANTS HUTCHINSON AND CMS
This matter came before the court on defendants Correctional Medical Services, Hutchinson,
and Ivens' (collectively "CMS Defendants") motion for summary judgment and on defendants
Stieve, Pandya, Naylor, Rice, and Withrows' (collectively "State Defendants") motion for summary
judgment. Plaintiff Vonlee Titlow filed a combined response, and the CMS Defendants filed a reply
brief. For the reasons set forth below, the court will grant in part and deny in part the CMS
Defendants' motion and will deny the State Defendants' motion.
BACKGROUND FACTS
On May 14, 2007, Plaintiff commenced this action by filing a pro se civil rights complaint
pursuant to 42 U.S.C. § 1983 and the Eighth and Fourteenth Amendments, raising several claims
against numerous defendants. Following the court's appointment of pro bono counsel, Plaintiff filed

a second amended complaint on August 16, 2010. The second amended complaint names as
defendants Correctional Medical Services, Inc. (CMS); Dr. Craig Hutchinson, Medical Director of
CMS; Dr. Jeffrey Stieve, MDOC Chief Medical Officer; Dr. Keith Ivens, CMS Utilization
Management Director; Dr. Haresh Pandya, MDOC Regional Medical Director Dr. Gregory Naylor,
Acting Chief Medical Officer of MDOC’s Bureau of Health Care Services; and Correctional
Officers Crystal Rice and Craig Withrow.1 Plaintiff claims that Defendants were deliberately
indifferent to her medical needs in violation of the Eighth Amendment. Specifically, Plaintiff claims
that: (1) Defendants CMS, Hutchinson, Naylor, Stieve, Ivens, and Pandya were deliberately
indifferent to her medical needs by failing to approve corrective surgery; and (2) defendants Rice
and Withrow were deliberately indifferent to her medical needs when they failed to take her to the
hospital at her request.
The basic facts underlying this action are not in dispute. Plaintiff Vonlee Nicole Titlow is a
biologically male prisoner who suffers from gender identity disorder. At the times relevant to this
complaint, Plaintiff was incarcerated at the Southern Michigan Correctional Facility. Prior to her
incarceration,2 Plaintiff received silicon injection to increase her breast size.3 It is undisputed, at
least at this stage of the case, that sometime in 2003, after her incarceration began, Plaintiff’s body

1

Plaintiff's second amended complaint also named as defendants Dennis Straub, George
Pramstallar, James Forshee, and Mary Kleinhardt. Plaintiff's claims against these defendants were
dismissed upon the consent of the parties on February 7, 2011.
2

Although biologically male, Plaintiff refers to herself using feminine pronouns. The court will
do the same here.
3

The exact date is not clear from the record, but it appears to predate Plaintiff’s incarceration by
about 15-20 years. Further, although the parties and the medical records at times refer to Plaintiff’s
silicone breast “implants,” it is clear that Plaintiff did not receive implants but had silicone directly
injected into the breast tissue.
2

began to reject the silicone, causing pain, bruising, and scar tissue. Plaintiff also alleges that the
diffusion of silicone into her body has caused a number of other maladies. Throughout 2004-2006,
Plaintiff’s treating doctors recommended that a surgical option for removal of the silicon be
explored. These requests were repeatedly been denied by prison officials. Finally, Plaintiff alleges
that her requests to be taken to the hospital in April 2006 were ignored by prison guards.
Taken the light most favorable to Plaintiff, the evidence submitted by the parties establishes
the following facts. Plaintiff was initially incarcerated at the Riverside Correctional Facility. On
April 24, 2002, an initial medical screening noted a hard nodular mass in each breast. A May 15,
2002 intake health appraisal noted the same, indicating that the masses were likely caused by a
previous silicone injection. See Pl.'s Resp., Exs. 1A. On September 15, 2003, Plaintiff's treating
physician spoke with defendant Hutchinson regarding treatment for Plaintiff's GID. Defendant
Hutchinson told the treating physician to continue Plaintiff's medication and have her evaluated by
a psychologist. See id., Ex. 1B. In December 2004, Plaintiff was transferred to the Southern
Michigan Correctional Facility. On December 3, Dr. Keith Camaan noted that Plaintiff reported
pain in her breasts and had discoloration accompanied by hard tissue, edema, and painful scarring.
Dr. Camaan requested a surgical consultation. The request was denied by then CMS administrator
Dr. James Forshee on the grounds that the procedure was considered cosmetic. See id., Ex. 1C. Dr.
Camaan again saw Plaintiff on January 7, 2005. At that time, Plaintiff complained of chronic
migraines and nausea. Dr. Camaan informed Plaintiff that he was appealing the denial of the request
for surgical consult to the Medical Services Appeal Committee (MSAC). On January 25, 2005, the
MSAC upheld the denial without explanation. Present at the MSAC meeting were both defendants
Hutchinson and Naylor. See id., Ex. 1D. On June 15, 2005, Dr. Camaan again examined Plaintiff,

3

whom officers had found on her bunk in extreme pain. Dr. Camaan noted that Plaintiff had fibrotic
breast tissue due to a reaction to the silicon and pain related to the fibrotic tissue. Dr. Camaan
requested that the matter be referred to the MSAC for a pain management evaluation, while again
noting that the best option was for Plaintiff to have the silicon removed from her breasts. See id.,
Ex. 1E; see also, Ex. 1F. On June 29, 2005, Plaintiff was taken to Duane Waters Hospital for
emergency treatment of her severe breast pain. The treating emergency room physician, Dr. Ajovi
Scott-Emuakapor, noted that Plaintiff was in extreme pain and had several abnormalities in each
breast. Dr. Scott-Emuakapor diagnosed mastalgia and noted as a concern the possibility of a
secondary infection. Dr. Scott-Emuakapor also noted that due to the severity of the pain, a surgical
consultation was necessary. Dr. Scott-Emuakapor noted that a mammogram or CT scan was
"essential . . . to ascertain if there is an urgency to perform extraction of the foreign body," and that
a "[s]urgical referral is strongly recommended." Id., Ex. 1F.
On July 8, 2005, Dr. Faghihnia examined Plaintiff and again noted that Plaintiff had severe
pain secondary to fibrotic lesions as a likely result of silicone leakage. Dr. Faghihnia requested
authorization from CMS to prescribe Vicodin. Dr. Faghihnia made the same findings on August 1
and August 17, and on the latter date again requested authorization to prescribe additional pain
medications. See id., Ex. 1G-H. Plaintiff was examined by Dr. Fatu on November 21, 2005. Dr.
Fatu's findings mirrored those of the previous treating physicians, and Dr. Fatu likewise requested
a surgical consultation. That request was denied by defendant Ivens on November 28, 2005, because
"[p]ainful breasts are not generally indications to remove the breast." Id., Ex. 1I. Plaintiff was again
taken to the emergency room due to severe breast pain on February 6, 2006. The following day, Dr.

4

Fatu submitted another request to prescribe Vicodin, which was ultimately approved. See id., Ex.
1J.
On February 6, 2007, Plaintiff was seen by staff psychiatrist Dr. Michaela Weller. Dr. Weller
reported that Plaintiff was becoming progressively depressed secondary to her chronic pain issues.
Dr. Weller opined that "[a]lthough true that pain is not a general indication for mastectomy, the
procedure being asked by the [patient] is not a mastectomy but a removal of a foreign body." Id.,
Ex. 1K. Plaintiff was examined by treating physician's assistant Beverly Sainz on March 5, 2007.
P.A. Sainz made findings consistent with the earlier diagnoses and again requested a surgical consult
from CMS. On March 16, Defendant Ivens denied the request for surgical consult, stating:
Criteria not met. Not authorized. General surgery consult for possible leakage of
silicon from breast implants. Silicone implants were removed from the market in 1992.
The patient might not have silicone. Old records would confirm. The FDA has
determined silicone leaks do not lead to increase immune disease or cancer. According
to our records this is a recurrent problem. Dr. Wisneski [CMS's surgical consultant]
was authorized to see the patient for breast inflammation in 2005. Perhaps that eval.
could be reviewed.
Id., Ex. 1L. Despite this determination, there is no evidence in the record that Dr. Wisneski ever
examined Plaintiff, nor is there any evidence that as of March 16, 2007, any of the several requests
for a surgical consultation had been approved by CMS. Further, Plaintiff's pre-incarceration medical
records from the Vanderbilt University Medical Center, dated September 20, 1994, had been
received by the MDOC as early as November 16, 2003. See id., Ex. 1B. Plaintiff was again
examined by P.A. Sainz on March 21, 2007. Sainz noted that she spoke with defendant Ivens, who
again told her to review Dr. Wisneski's consult report and to obtain an authorization from Plaintiff
to release her medical records. See id., Ex. 1M. Plaintiff filed her initial complaint in this action
on May 14, 2007.

5

On August 10, 2007, plaintiff was seen by yet another treating physician, Dr. Suzanne
Hawkins. Dr. Hawkins submitted another request for surgical consult, which defendant Ivens
denied, stating: "Criteria not met. Not authorized for removal of silicone. Dr. Hawkins, Mr. Titlow
has a recurrent history of inflammation in his breast. Review past treatments & you may find a way
to help him." Id., Ex. 1N. On September 17, Plaintiff was seen by Dr. Madeline Boyd-Brown for
a medication review. Dr. Boyd-Brown likewise submitted a request for surgical consult, noting that
more conservative therapies had failed and that "Vicoden-ES does not control pain. Treatment is
ultimately to remove foreign objects." A CMS nurse reviewer denied the request on September 20,
stating: "Criteria not met. This request has gone thru the CMS process. It is now up to
MDOC/[Regional Medical Director] to decide if case moves forward to MSAC committee." Id., Ex.
1O. In response to Dr. Boyd-Brown's appeal of the denial, a nurse reviewer stated that "MSAC may
authorize removal of injected silicone lumps but no mammoplasty and that removal of silicone may
not resolve all his pain." Id. Plaintiff was examined by Dr. Robert Migliorino and nurse Magen
Johnson in December 2007, both of whom noted Plaintiff's breast pain and discharge. See id. Ex.
1P.
On January 10, 2008, Plaintiff was examined by Dr. Robert Crompton. Dr. Compton informed
Plaintiff that he would follow up on Plaintiff's request for an appeal to the MSAC. In his appeal
submitted to defendant Stieve, Dr. Compton noted that a surgical consultation had never been
performed. See id., Ex. 1Q. On November 5, 2008, Plaintiff spoke with nurse Ann Karp, who
confirmed that Plaintiff had received silicon injections, not implants. Nurse Karp also noted that
the record contained no decision of the MSAC on Plaintiff's appeal. On November 7, Nurse Karp
took photographs of Plaintiff's breasts which she forwarded to the Regional Medical Officer. See

6

id., Ex. 1R. On November 18, the MSAC denied Dr. Crompton's appeal of the denial of a surgical
consultation. See id. On December 2, Dr. Scott Holmes requested additional pain medications for
Plaintiff. Dr. Holmes resubmitted the request on January 16, 2009, having received no response to
his initial request. On April 1, 2009, the request was approved. See id., Ex. 1S.
Meanwhile, on March 9, 2009, Plaintiff was seen by two nurses for complaints of pain and
bloody discharge from her right breast. Plaintiff was taken to Ionia County Hospital, where she was
treated for acute mastitis. See id., Ex. 1T. On March 12, Plaintiff spoke with Barbara Zahn,
informing her that she did not expect MDOC to replace the silicone with breast implants and that
she just wanted the silicone removed so that she could be pain free. See id. On March 11, 2009, Dr.
Michael J. Busuito, Plaintiff's retained expert, prepared a report based on his review of Plaintiff's
medical records. Dr. Busuito opined that, based on the assumptions that Plaintiff had direct silicone
injections and was in fact experiencing pain and inflammation, "it is absolutely indicated that
[Plaintiff] be given a surgical consult and from my review of the records and my understanding of
the case it would be my recommendation that this patient undergo bilateral mastectomies." Dr.
Busuito further opined that if injected silicone were present in Plaintiff's breasts and not removed,
Plaintiff "will have progression of his chronic mastitis with inflammation, pain, discomfort and
chronic infections." Although based on disagreement in the medical community Dr. Busuito could
not attribute Plaintiff's systemic symptoms (such as headaches and joint pain) to the presence of
silicone, he could "certainly attribute his complaints of chronic pain and discomfort in his breasts
along with the problem of chronic infection to the presence of injected silicone in his breasts." Id.,
Ex. 1U.

7

On May 26, 2009, defendant Stieve notified Dr. Compton that surgical removal of the silicone
had been approved. On May 28, Defendant Pandya personally delivered the news to Plaintiff. See
id., Ex. 1V. On July 1, 2009, Plaintiff was seen by Dr. Kevin O'Connor for a surgical consultation.
Dr. O'Connor recommended a mastectomy. On April 7, 2010, Dr. O'Connor recommended removal
of Plaintiff's right breast, as that was the one causing the majority of symptoms. The mastectomy
was performed on June 3, 2010. See id., Ex. 1W.
Plaintiff's claims against defendants Rice and Withrow do not relate to the more general failure
to provide her with treatment for her breast condition. Rather, she contends that these defendants,
who are guards and not medical providers, ignored his complaints of pain on one particular occasion.
Specifically, Plaintiff contends that in the early morning hours of April 14, 2006, she was
experiencing severe breast and head pain. She asked defendant Withrow to be taken to the hospital.
According to Plaintiff, defendant Withrow answered in a mocking tone that he would try to call but
doubted that the hospital would see her and then walked away. See id., Ex. 9, ¶¶ 3-4; Ex. 14, at 5758. Later, Plaintiff asked defendant Rice if defendant Withrow had called medical services or the
hospital, but defendant Rice shrugged and walked away. See id. Ex. 9, ¶¶ 6-7, Ex. 14, at 58. When
the first shift officers came on duty, Plaintiff was able to explain the problem to Corrections Officer
Newbecker. Newbecker contacted health care services, and Plaintiff was administered Vicodin. See
id, Ex. 9, ¶¶ 11, 13; Ex. 14, at 58-59. Newbecker informed Plaintiff that neither defendant had
documented a request for medical assistance in the log book. See id., Ex. 9, ¶ 12. The following
night, Plaintiff again began to experience severe pain as well as vomiting. Plaintiff asked defendant
Rice to contact health care. According to Plaintiff, defendant Rice told her that she was too busy

8

and walked away. Plaintiff was again able to secure medical attention after the shift change. See
id., Ex. 9, ¶¶ 14-15; Ex. 14, at 65-66, 67-68.
LAW AND ANALYSIS
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be granted
if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue of material fact and that the moving party is
entitled to judgment as a matter of law. FED. R. CIV. P. 56. “An issue of fact is ‘genuine’ if the
evidence is such that a reasonable jury could return a verdict for the non-moving party.” Hedrick
v. Western Reserve Care Sys., 355 F.3d 444, 451 (6th Cir. 2004) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)). “A fact is material only if its resolution will affect the outcome of
the lawsuit.” Hedrick, 355 F.3d at 451-52 (citing Anderson, 477 U.S. at 248). In deciding a motion
for summary judgment, the court must view the evidence in a light most favorable to the non-movant
as well as draw all reasonable inferences in the non-movant’s favor. See Sutherland v. Michigan
Dep’t of Treasury, 344 F.3d 603, 613 (6th Cir. 2003); Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir.
2003).
“The moving party has the initial burden of showing the absence of a genuine issue of material
fact as to an essential element of the non-moving party’s case.” Hedrick, 355 F.3d at 451 (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). To meet this burden, the moving party need
not produce evidence showing the absence of a genuine issue of material fact. Rather, “the burden
on the moving party may be discharged by ‘showing’ -- that is, pointing out to the district court -that there is an absence of evidence to support the non-moving party’s case.” Celotex Corp., 477
U.S. at 325. “Once the moving party satisfies its burden, ‘the burden shifts to the nonmoving party

9

to set forth specific facts showing a triable issue.’” Wrench LLC v. Taco Bell Corp., 256 F.3d 446,
453 (6th Cir. 2001) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986)).
To create a genuine issue of material fact, however, the non-movant must do more than present
some evidence on a disputed issue. As the Supreme Court has explained:
There is no issue for trial unless there is sufficient evidence favoring the nonmoving
party for a jury to return a verdict for that party. If the [non-movant’s] evidence is
merely colorable, or is not significantly probative, summary judgment may be granted.
Anderson, 477 U.S. at 249-50. (citations omitted); see Celotex Corp., 477 U.S. at 322-23;
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). Thus, “[t]he
existence of a mere scintilla of evidence in support of the non-moving party’s position will not be
sufficient; there must be evidence on which the jury could reasonably find for the non-moving
party.” Sutherland, 344 F.3d at 613.
To state a viable § 1983 claim, a plaintiff must allege that: (1) he was deprived of a right,
privilege, or immunity secured by the Federal Constitution or the laws of the United States; and (2)
the deprivation was caused by a person while acting under color of state law. Doe v. Wigginton, 21
F.3d 733, 738 (6th Cir. 1994). Thus, “[t]he first step in any such claim is to identify the specific
constitutional [or statutory] right allegedly infringed.” Albright v. Oliver, 510 U.S. 266, 271 (1994)
(plurality op.); see also, Graham v. Connor, 490 U.S. 386, 394 (1989). Here, Plaintiff alleges that
Defendants violated his Eighth Amendment right to be free from cruel and unusual punishment.
The Eighth Amendment provides: “Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.” U.S. CONST. Amend. VIII. In its purest
sense, the Eighth Amendment proscribes cruel and unusual punishment meted out in a penal or

10

disciplinary sense. In its application by the courts, the Amendment actually protects a wide
assortment of interests. It proscribes disproportionate punishments, Weems v. United States, 217
U.S. 349, 366-67 (1910), “unnecessary and wanton infliction of pain,” Gregg v. Georgia, 428 U.S.
153, 173 (1976) (plurality opinion), and conduct repugnant to “evolving standards of decency,” Trop
v. Dulles, 356 U.S. 86 (1958) (plurality opinion). See generally, Parrish v. Johnson, 800 F.2d 600,
609 (6th Cir. 1986). The Constitution “does not mandate comfortable prisons.” Rhodes v.
Chapman, 452 U.S. 337, 349 (1981). On the other hand, it does not permit inhumane ones, and it
is clear that “the treatment a prisoner receives in prison and the conditions under which he is
confined are subject to scrutiny under the Eighth Amendment.” Helling v. McKinney, 509 U.S. 25,
31 (1993); see also, Farmer v. Brennan, 511 U.S. 825, 832 (1994). The amendment imposes
affirmative duties on prison officials,
who must provide humane conditions of confinement; prison officials must ensure that
inmates receive adequate food, clothing, shelter and medical care, and must 'take
reasonable measures to guarantee the safety of the inmates.'
Id. (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)).
If the offending conduct is not a criminal penalty, then it must reflect an “‘unnecessary and
wanton infliction of pain’” to come within Eighth Amendment’s prohibition on cruel and unusual
punishment. Ingraham v. Wright, 430 U.S. 651, 670 (1977) (quoting Estelle v. Gamble, 429 U.S.
97, 103 (1976)). Such claims must satisfy both an objective and a subjective test. Farmer, 511 U.S.
at 834; Wilson v. Seiter, 501 U.S. 294, 297-300 (1991). Under this analysis, what constitutes
“unnecessary and wanton infliction of pain” will vary depending on the nature of the alleged
constitutional violation. Hudson v. McMillian, 503 U.S. 1, 5 (1992); Brooks v. Celeste, 39 F.3d 125,

11

128 (6th Cir. 1994). The plaintiff bears the burden of proving these elements by a preponderance
of the evidence. Brooks, 39 F.3d at 127-28.
The objective prong asks whether the harm inflicted by the conduct is sufficiently serious to
warrant Eighth Amendment protection. McMillian, 503 U.S. at 8-9; Rhodes, 452 U.S. at 349 (1981).
To satisfy this prong, the conduct must deprive the plaintiff of “the minimal civilized measure of
life’s necessities.” Rhodes, 452 U.S. at 349. The objective component is contextually driven and
is responsive to “‘contemporary standards of decency.’” McMillian, 503 U.S. at 8 (quoting Estelle,
429 U.S. at 103). The subjective prong asks whether the officials acted with a sufficiently culpable
state of mind; that is, was the conduct “wanton.” Wilson, 501 U.S. at 302; Moore v. Holbrook, 2
F.3d 697, 700 (6th Cir. 1993). In determining whether an official acted wantonly, the court applies
a “deliberate indifference” standard. Wilson, 501 U.S. at 302-03; see Estelle, 429 U.S. at 104-06.
Under this “deliberate indifference” standard,
a prison official may be held liable under the Eighth Amendment for denying humane
conditions of confinement only if he knows that inmates face a substantial risk of
serious harm and disregards that risk by failing to take reasonable measures to abate it.
Farmer, 511 U.S. at 847. A prison official is not free to ignore obvious dangers to inmates and may
be liable even if he does not know the exact nature of the harm that may befall a particular inmate.
Id. at 843-44. However, prison officials may escape liability if they show that they in fact did not
know of the obvious risk to the inmate’s health or safety, or knowing of it, they acted reasonably
under the circumstances. Id. at 844-45. Plaintiff's claims that defendants denied medically
necessary treatment are governed by these objective and subjective tests, as explained by the
Supreme Court in Estelle, supra. In Estelle, the Court held that “[r]egardless of how evidenced,
deliberate indifference to a prisoner’s serious illness or injury states a cause of action under § 1983.”

12

Estelle, 429 U.S. at 105. Thus, a court faced with failure to treat claims has a two-fold inquiry: (1)
does the plaintiff’s complaint involve “serious illness or injury”?–i.e, the objective prong of the
Eighth Amendment analysis; and (2) if so, were the defendants deliberately indifferent to this serious
illness or injury?–i.e., the subjective prong of the Eighth Amendment analysis. See generally,
Durham v. Nu’Man, 97 F.3d 862, 868-69 (6th Cir. 1996). Importantly, however, “a complaint that
a physician has been negligent in diagnosing or treating a medical condition does not state a valid
claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become
a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106.
Further, it is well established that liability in a § 1983 action cannot be based on a theory of
respondeat superior. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009); Monell v. New York City
Dep’t of Social Servs., 436 U.S. 658, 691 (1978). “To recover damages under 42 U.S.C. § 1983, a
plaintiff must establish a defendant’s personal responsibility for the claimed deprivation of a
constitutional right.” Diebitz v. Arreola, 834 F. Supp. 298, 304 (E.D. Wis. 1993). “Because
vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each
Government-official defendant, through the official’s own conduct, has violated the Constitution.”
Iqbal, 129 S. Ct. at 1948. In other words, in order to state a claim under § 1983 “[a] plaintiff must
allege facts, not simply conclusions, that show that an individual was personally involved in the
deprivation of his civil rights. Liability under § 1983 must be based on the personal involvement
of the defendant.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (per curiam); see
also, Carr v. Parker, No. 98-6395, 1999 WL 1206879, at *1 (6th Cir. Dec. 9, 1999); Salehpour v.
University of Tennessee, 159 F.3d 199, 206 (6th Cir. 1998). As the Sixth Circuit has stated:
'Section 1983 liability will not be imposed solely upon the basis of respondeat superior.
There must be a showing that the supervisor encouraged the specific incident of
13

misconduct or in some other way directly participated in it. At a minimum, a § 1983
plaintiff must show that a supervisory official at least implicitly authorized, approved
or knowingly acquiesced in the unconstitutional conduct of the offending subordinate.'
Taylor v. Michigan Dep’t of Corrections, 69 F.3d 73, 81 (6th Cir. 1995) (quoting Bellamy v.
Bradley, 729 F.2d 416, 421 (6th Cir. 1984) (emphasis added)) (emphasis by Taylor court); see also,
Monell, 436 U.S. at 693-95; Birell v. Brown, 867 F.2d 956, 959 (6th Cir. 1989). Furthermore, an
allegation that a supervisor was aware of an actionable wrong committed by a subordinate and failed
to take corrective action “is insufficient to impose liability on supervisory personnel under § 1983.”
Poe v. Haydon, 853 F.2d 418, 429 (6th Cir. 1988). As the Haydon court stated: “A supervisory
official’s failure to control, or train the offending individual is not actionable, unless the supervisor
‘either encouraged the specific incident or in some other way directly participated in it.’” Haydon,
853 F.2d at 429 (quoting Hays v. Jefferson County, 668 F.2d 869, 874 (6th Cir. 1982)).
The State Defendants argue that they are entitled to summary judgment because they were not
directly involved in providing medical care to Plaintiff nor did they supervise those who provided
such care, and because Plaintiff's claim does not involve deliberate indifference but rather a
difference of medical judgment between doctors. Further, the State Defendants argue that Plaintiff's
claims against defendants Rice and Withrow fail because these defendants were not deliberately
indifferent to a serious medical need. The CMS Defendants argue that they are entitled to summary
judgment because there is no evidence that they were deliberately indifferent to Plaintiff's breast
condition and because they were not authorized to approve the reconstructive surgery that Plaintiff
sought. They further contend that CMS itself is entitled to summary judgment because there is no
evidence that CMS maintained an unconstitutional policy or custom which caused the alleged
constitutional violations.

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At the outset, the court concludes that there is sufficient evidence from which a rational jury
could conclude that defendants, in the aggregate, were deliberately indifferent to Plaintiff's serious
medical needs.4 With respect to the objective prong, a serious medical need is nothing more than
a medical need “‘that has been diagnosed by a physician as mandating treatment or one that is so
obvious that even a lay person would easily recognize the necessity for a doctor’s attention.’” Perez
v. Oakland County, 466 F.3d 416, 423 (6th Cir. 2006) (quoting Blackmore v. Kalamazoo County,
390 F.3d 890, 897 (6th Cir. 2004)). Here, the evidence shows that Plaintiff had a medical condition
which resulted in severe pain, hardening of the breast tissue, and possible related maladies such as
headaches and joint pain due to the diffusion of silicone. This severe, long-term pain, which each
of Plaintiff’s treating physicians determined required treatment, constitutes a serious medical need.
See Mata v. Saiz, 427 F.3d 745, 754-55 (10th Cir. 2005); Chance v. Armstrong, 143 F.3d 698, 702
(2d Cir. 1998).
The CMS defendants, relying on Napier v. Madison County, Kentucky, 238 F.3d 739 (6th Cir.
2001), argue that Plaintiff cannot show a serious medical need under the objective prong because
she was eventually provided treatment and cannot point to any evidence that the delay in treatment
had any detrimental effects. In Napier, the Sixth Circuit explained that “an inmate who complains
that [a] delay in medical treatment rose to a constitutional violation, must place verifying medical
evidence in the record to establish the detrimental effect of the delay in medical treatment to
succeed.” Napier v. Madison County, Ky., 238 F.3d 739, 742 (6th Cir. 2001) (quoting Hill v. Dekalb
Reg’l Youth Det. Ctr., 40 F.3d 1176, 1188 (11th Cir. 1994)). This argument is without merit for two

4

The court's discussion here deals with the claims involving the surgical consultation issue.
Plaintiff's claims against defendants Rice and Withrow are discussed below.
15

reasons. First, "Napier's medical verification requirement has since been restricted to those cases
involving 'minor maladies.'" Lyons v. United States, No. 4:03CV1620, 2009 WL 997300, at *12
(N.D. Ohio Apr. 14, 2009) (citing Blackmore, 390 F.3d at 898; Cain v. Irvin, 286 Fed. Appx. 920,
926 (6th Cir. 2008)); see also, Estate of Carter v. City of Detroit, 408 F.3d 305, 311-12 (6th Cir.
2005). Second, Plaintiff's evidence satisfies the Napier standard. Here, plaintiff has presented
abundant objective evidence, through the prison medical records and the report of her expert, that
she had a medical condition that could cause the pain she experienced; and significant pain
constitutes a "detrimental effect" under Napier. See Scott v. Antonini, 764 F. Supp. 2d 904, 908-09
(E.D. Mich. 2011) (Battani, J.).
Turning to the subjective prong of the Eighth Amendment standard, there is ample evidence
in the record to establish that the repeated denial of a surgical consultation amounted to deliberate
indifference to Plaintiff's medical needs. Although the State Defendants characterize the denial of
surgery as a simple matter of medical disagreement between the treating physicians and the medical
administrators over the proper course of treatment, there is sufficient evidence in the record from
which a rational jury could conclude that the decisions to deny surgery, or even a surgical
consultation, were not medical treatment decisions. As recounted above, every doctor or physician's
assistant–numbering at least seven–who actually examined and treated Plaintiff determined that a
surgical consultation was necessary. This included medical providers both at the prisons and at
outside hospitals. Moreover, there is evidence in the record to suggest that the decisions to deny
surgery were not based on a medical determination that it was not an appropriate treatment for
Plaintiff’s specific medical needs. Rather, the record reflects that the decisions were based on
generalities having nothing to do with the actual condition of Plaintiff, such as that the request was

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"considered cosmetic" or that "painful breasts are not generally indications" to amputate the breast.
These denials by health administrators who did not treat Plaintiff, at least when viewed in the light
most favorable to Plaintiff, reflect an administrative decision divorced from the specific
circumstances of Plaintiff’s condition rather than a medical treatment decision with which Plaintiff
simply disagrees. It is well established that deliberate indifference may be shown were prison
officials “deliberately ignore the express orders of a prisoner’s prior physician for reasons unrelated
to the medical needs of the prisoner.” Hamilton v. Endell, 981 F.2d 1062, 1066 (9th Cir. 1992); see
also, Johnson v. Wright, 412 F.3d 398, 404-05 (2d Cir. 2005).
In short, Plaintiff repeatedly and continually complained of severe pain in her breasts and
asked that the silicon be surgically removed. Her treating physicians have unanimously supported
her requests and provided medical justification for the request. Plaintiff's evidence is sufficient to
raise a genuine issue of material fact with respect to whether Defendants, in the aggregate, reached
a contrary administrative as opposed to medical conclusion based on Plaintiff’s unique condition.
In these circumstances, Plaintiff has presented sufficient evidence of deliberate indifference to
withstand summary judgment. See Johnson, 412 F.3d at 404-05; Goldyn v. Angelone, No. 97-17185,
1999 WL 728561, at *1 (9th Cir. Sept. 13, 1999) (defendants were not entitled to summary judgment
on deliberate indifference claims where plaintiff’s “evidence that she complained of pain and asked
to have her implants removed, and that prison officials waited almost two years before doing so is
sufficient to withstand summary judgment.”).
The State Defendants argue that they did not exhibit deliberate indifference because the
response to the requests for a surgical consultation--"that amputation is not the preferred [initial]
therapy for a painful body part, but the last resort--even to a lay person sounds reasonable." State

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Def.s' Br. at 14. This argument is without merit for several reasons. First, even if this was true at
the time of the first request, it does not explain the repeated failure to approve a surgical consultation
after several years of more conservative therapy had failed to alleviate Plaintiff's condition and the
treating physicians repeatedly advised that surgery, or at least a surgical consultation, was the best
course of treatment. Second, while amputation may not be the preferred initial treatment for a
painful body part in general, this does not explain the failure to provide even a consultation to
determine whether surgery might be the proper course of treatment in Plaintiff's case. The
explanation further fails to account for the fact that Plaintiff experienced not only pain but also
objective symptoms such as the presence of hardening, lumps, and discharge from the nipples.
Third, there is sufficient evidence in the record to raise a factual question as to whether the
explanation now offered by Defendants was, in fact, the basis on which the request for a surgical
consultation was denied. The only time that Defendants relied on this explanation was in their
denial of Dr. Fatu's 2005 request for a surgical consultation. See Pl.'s Br., Ex. 1I. In response to Dr.
Camaan's 2005 request, however, Dr. Forshee stated that the request was denied because the
procedure was considered cosmetic; and on appeal that decision was upheld without explanation.
See id., Ex. 1C-D. The 2007 request by P.A. Sainz was denied on the basis that Plaintiff "might not
have silicone"; and Sainz was instructed to obtain an authorization for release of Plaintiff's medical
records and to review the consultation performed by Dr. Wisneski, despite the facts that the MDOC
had received Plaintiff's medical records as early as 2003 and Dr. Wisneski had never performed a
consultation, all prior requests for such a consultation having been denied. See id., Ex. 1L-M. In
response to Dr. Hawkins's 2007 request, Dr. Hawkins was instructed merely to review Plaintiff's
treatment history "and you may find a way to help him." Id., Ex. 1N. In response to Dr. Boyd-

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Brown's later request in 2007, the CMS reviewer did not offer any further explanation but merely
passed the buck to the MSAC. Furthermore, in response to Dr. Crompton's 2008 request, the request
was denied without explanation. See id., Ex. 1R. In short, there is significant evidence in the record
to raise a genuine issue of material fact as to whether both Defendants' current explanation for the
denials was the real reason for those denials, and if so whether Defendants nevertheless exhibited
deliberate indifference by relying on this reason in light of the circumstances of Plaintiff's medical
condition.
The more difficult question is whether each individual Defendant was personally involved or
was personally deliberately indifferent to Plaintiff's serious medical needs such that they can each
be held individually liable. With respect to defendant Hutchinson, the court agrees with Defendants
that Plaintiff has failed to provide sufficient evidence to establish that defendant Hutchinson was
himself deliberately indifferent to Plaintiff's serious medical needs. The only evidence of defendant
Hutchinson's involvement with Plaintiff's medical care is his initial 2003 consultation regarding the
treatment of Plaintiff's GID and his sitting on the MSAC for the initial 2005 denial of a consultation.
Defendant Hutchinson did not have any involvement in the other MSAC meetings, see CMS Def.s'
Br., Ex. B, Dep. of Craig Hutchinson, at 51, nor is there any evidence that defendant Hutchinson had
any other involvement in the decisions that are the subject of Plaintiff's suit. At the time of the 2005
denial it cannot be said that the MSAC's failure to approve a surgical consultation amounted to
deliberate indifference. As of that time, it was plausible for the MSAC to conclude that conservative
treatment options should first be explored or that more information was necessary to make an
informed decision. It cannot be said that the 2005 decision, standing alone, amounts to deliberate
indifference. The only other basis for holding Defendant Hutchinson liable that Plaintiff relies on

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is that Hutchinson was responsible for the hiring and firing of providers contracted by CMS and was
responsible for overseeing the delivery of medical care to prisoners. These arguments, however,
merely seek to hold defendant Hutchinson liable on the basis of respondeat superior, which as
explained above is an insufficient basis for holding him personally liable.
Similarly, the court concludes that Plaintiff has failed to establish that defendant CMS is liable
for the alleged constitutional violations. In the context of a municipality, a plaintiff cannot establish
the municipality’s liability unless she shows that “deliberate action attributable to the municipality
directly caused a deprivation of federal rights.” Board of County Comm’rs v. Brown, 520 U.S. 397,
415 (1997). This rule of municipal liability applies equally to private corporations that are deemed
state actors for purposes of § 1983. See Street v. Corrections Corp. of Am., 102 F.3d 810, 817-18
(6th Cir. 1996); see also, Dubbs v. Head Start, Inc., 336 F.3d 1194, 1216 (10th Cir. 2003) (citing
cases); Dashley v. Correctional Med. Servs., Inc., 345 F. Supp. 1018, 1021 (E.D. Mo. 2004). Thus,
“CMS, although clearly a state actor and therefore a proper party to this § 1983 action, cannot be
held vicariously liable for the actions of its agents . . . . Hence, CMS’s liability must . . . be
premised on some policy that caused a deprivation of [plaintiff]’s Eighth Amendment rights.”
Starcher v. Correctional Medical Systems, Inc., 7 Fed. Appx. 459, 465 (6th Cir. 2001).
Plaintiff does not point to any specific policy or custom of CMS that resulted in the alleged
constitutional violations. Rather, Plaintiff contends that CMS is liable for defendants Hutchinson
and Ivens's constitutional violations because they were policymakers. Although, as noted above,
the acts of municipal employee may not be attributed to a municipality solely on the basis of
respondeat superior, the Supreme Court has recognized that “municipal liability may be imposed
for a single decision by municipal policymakers under appropriate circumstances.” Pembaur v. City

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of Cincinnati, 475 U.S. 469, 480 (1986). In particular, the municipality may be held liable where
the official has final policymaking authority with respect to the act taken or decision made. See Jett
v. Dallas Independent Sch. Dist., 491 U.S. 701, 737 (1989); City of St. Louis v. Praprotnik, 485 U.S.
112, 123 (1988) (plurality); Pembaur, 475 U.S. at 480. Here, however, there is insufficient evidence
to raise a genuine issue of material fact with respect to whether defendant Hutchinson or Ivens had
final policymaking authority with respect to the treatment decisions that are at issue in this case.
Defendant Hutchinson, although CMS's regional director, was subject to corporate supervision; and
there is no evidence that he was granted policymaking authority by CMS. See CMS Def.s' Br., Ex.
B., Dep. of Craig Hutchinson, at 11. Further, Hutchinson's supervision of the provision of medical
care was conducted under the guidance of MDOC regulations and was ultimately subject to review
by the MSAC. In these circumstances, neither defendant Hutchinson nor defendant Ivens was a
policymaking official such that CMS may be held directly liable for their actions. Cf. Camp v.
Correctional Medical Servs., Inc., 668 F. Supp. 2d 1338, 1352 (M.D. Ala. 2009), aff'd, 400 Fed.
Appx. 519 (11th Cir. 2010); Francis v. Carroll, 659 F. Supp. 2d 619, 628 (D. Del. 2009).
The same conclusion, however, cannot be reached with respect to the remaining defendants.
Defendant Ivens was directly involved in each of the requested denials of a surgical consult.
Further, there is sufficient evidence to raise a genuine issue of material fact with respect to whether
defendant Ivens actually knew of Plaintiff's medical condition and the repeated requests for a
surgical consultation by each of Plaintiff's medical providers. Likewise, defendants Stieve, Pandya,
and Naylor were each involved in the subsequent MSAC process which repeatedly denied the
requests of Plaintiff's treating physicians for a surgical consult despite a medical record which
provided objective indications of Plaintiff's condition and the repeated requests for a surgical

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consultation by Plaintiff's treating providers. As explained above, there is sufficient evidence in the
record to raise a genuine issue of material fact with respect to whether those denials amounted to
deliberate indifference to Plaintiff's serious medical needs. Because defendants Ivens, Stieve,
Pandya, and Naylor were directly involved in those denials, they are not entitled to summary
judgment.
The court also rejects the State Defendants' argument that they are entitled to qualified
immunity. “Under § 1983 . . . , a plaintiff may seek money damages from government officials who
have violated her constitutional or statutory rights. But to ensure that fear of liability will not unduly
inhibit officials in the discharge of their duties, the officials may claim qualified immunity; so long
as they have not violated a clearly established right, they are shielded from personal liability.”
Camreta v. Greene, 131 S. Ct. 2020, 2030-31 (2011) (internal quotations and citations omitted).
“The doctrine of qualified immunity protects government officials ‘from liability for civil damages
insofar as their conduct does not violate clearly established statutory or constitutional rights of which
a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, ___, 129 S. Ct. 808,
815 (2009). Thus, “[q]ualified immunity shields an officer from suit when she makes a decision
that, even if constitutionally deficient, reasonably misapprehends the law governing the
circumstances she confronted.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam). The
inquiry into whether a particular right is clearly established “‘must be undertaken in light of the
specific context of the case, not as a broad general proposition.’” Id. (quoting Saucier v. Katz, 533
U.S. 194, 201 (2001)). However, it is not necessary that “the very action in question has previously
been held unlawful.” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (internal quotation omitted). Rather,
what is required is that “in light of pre-existing law the unlawfulness . . . be apparent.” Id. (internal

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quotation omitted). “[A]n action’s unlawfulness can be apparent from direct holdings, from specific
examples described as prohibited, or from the general reasoning that a court employs.” Feathers
v. Aey, 319 F.3d 843, 848 (6th Cir. 2003) (citing Hope, 536 U.S. at 740-41); see also, Grawey v.
Drury, 567 F.3d 302, 313-14 (6th Cir. 2009).
Here, the State Defendants argue that they are entitled to qualified immunity because "[t]here
are no decisions from the U.S. Supreme Court, the Sixth Circuit, this Circuit's District Courts, or
neighboring Circuits that clearly establish that refusal to amputate a painful body part before
attempting other, more conservative measures, in treating the pain constitutes deliberate
indifference." State Def.s' Br., at 14. This argument fails, for two reasons. First, Defendants parse
too finely the right asserted here. As noted above, it is not necessary that the very conduct in
question has been held unlawful for a right to be clearly established. As the discussion of the merits
of Plaintiff's claims shows, it is clearly established that a prisoner has a right to adequate medical
care; and it is equally well-established that prison officials' failure to follow the recommendations
of a prisoner's treating physician's for non-medical reasons can constitute deliberate indifference.
The State Defendants do not contend that these principles are not clearly established. Second,
Defendants' argument is dependent upon their view of the facts--i.e., that what is involved here is
a simple failure to authorize amputation as a first course of treatment for a painful body part.
However, as discussed in this opinion, taken in the light most favorable to Plaintiff, the evidence
shows Defendants continued to deny a surgical consultation even after years of more conservative
treatment had failed to alleviate Plaintiff's symptoms, that Plaintiff had objective medical problems
apart from pain, and that the now-proffered basis for the denials of a surgical consultation may not
have been the real reasons for Defendants' actions. At the summary judgment stage, any subsidiary

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facts are viewed in the light most favorable to the plaintiff; and the question of whether the officer
violated clearly established law is determined by reference to the facts as so viewed. See Champion,
380 F.3d at 900 (“[W]here the legal question of qualified immunity turns upon which version of the
facts one accepts, the jury, not the judge, must determine liability.”); Poe v. Haydon, 853 F.2d 418,
426 (6th Cir. 1988). In other words, “the nonmoving party is given the benefit of all relevant
inferences at the summary judgment stage, and if a genuine dispute exists concerning predicate facts
material to the qualified immunity issue, the defendant is not entitled to summary judgment on that
ground.” Smithson v. Aldrich, 235 F.3d 1058, 1061 (8th Cir. 2000) (internal quotation omitted); cf.
Crawford-El v. Britton, 523 U.S. 574, 598 (1998) (in resolving qualified immunity issue at the
pleading stage, “the court must determine whether, assuming the truth of the plaintiff’s allegations,
the official’s conduct violated clearly established law.”). Because the facts taken in the light most
favorable to the Plaintiff demonstrate that Defendants violated Plaintiff's clearly established
constitutional rights, Defendants are not entitled to summary judgment on the basis of qualified
immunity.
Finally, with respect to his claims against defendants Rice and Withrow, Plaintiff has
presented sufficient evidence to raise a genuine issue of material fact. Plaintiff avers in her affidavit
and testified at her deposition that she was in unbearable pain that was obvious to Defendants. She
also testified that notwithstanding this pain, both defendants were indifferent to her condition, failed
to seek medical attention for her, and failed to document her requests for medical care. These
allegations, if true, are sufficient to demonstrate deliberate indifference. See Estelle, 429 U.S. at
104-05 (deliberate indifference may be manifested by “prison guards in intentionally denying or
delaying access to medical care.”). To be sure, defendants Rice and Withrow present a different

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version of events than Plaintiff, claiming that she complained only of a headache, refused their offer
to see a nurse, and was able to go back to sleep. This presents a credibility contest which may not
be resolved on summary judgment. For purposes of this motion, the court must accept Plaintiff’s
version of events as sworn to in her affidavit and as to which she testified in her deposition.
Accordingly, defendants Rice and Withrow are not entitled to summary judgment.
ORDER
It is hereby ORDERED that the CMS Defendants' motion for summary judgment is
GRANTED with respect to Plaintiff's claims against defendants Hutchinson and CMS and DENIED
with respect to Plaintiff's claims against defendant Ivens.
It is further ORDERED that the State Defendants' motion for summary judgment is DENIED.

s/John Corbett O'Meara
United States District Judge
Date: November 8, 2011

I hereby certify that a copy of the foregoing document was served upon counsel of record on
this date, November 8, 2011, using the ECF system.

s/William Barkholz
Case Manager

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