Fitts et al v. Snyder et al

Filing 170

ORDER Adopting Magistrate Judge's Report and Recommendation 164 Granting Summary Judgment to Defendant Vives and Dismissing Case. Signed by District Judge Judith E. Levy. (TMcg)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Cameron Fitts, et al.,
Plaintiffs,

Case No. 12-cv-13575
Judith E. Levy
United States District Judge

v.
Rick Snyder, et al.,

Mag. Judge Elizabeth A. Stafford
Defendants.

________________________________/

ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [164] GRANTING SUMMARY JUDGMENT
TO DEFENDANT VIVES AND DISMISSING CASE
Plaintiff Cameron Fitts is currently detained in the Oakland
County Jail, but at the time of the incidents alleged in this matter was
an inmate of the Michigan Department of Corrections (“MDOC”) at the
Gus Harrison Correctional Facility in Adrian, Michigan. He filed this
action under 42 U.S.C. § 1983 against, among others, defendant Rene C.
Vives, a nurse practitioner, working under contract for the MDOC, over
incidents he alleges took place in 2012. The only remaining claim in

this lawsuit is a charge of retaliation by defendant Vives, who plaintiff
alleges retaliated against him, in violation of his First Amendment
rights, for his having filed a grievance against her.
Before the Court is the Honorable Elizabeth A. Stafford’s Report
and Recommendation, issued on February 11, 2016.

(Dkt. 164.)

Magistrate Judge Stafford recommends granting defendant Vives’s
motion for summary judgment. (Dkt. 164.)

Plaintiff timely filed

objections to the Report and Recommendation. (Dkt. 168.) Defendant
Vives filed a response to plaintiff’s objections. (Dkt. 169.)
For the reasons set forth below, the Court will adopt the Report
and Recommendation and enter it as the findings and conclusions of
this Court. Defendant’s motion for summary judgment will accordingly
be granted. Because this order will close the case, plaintiff’s request for
counsel is denied as moot. Plaintiff further seeks to seal portions of the
record containing sensitive medical information, and he will be granted
leave to file a motion detailing his request.

2

I.

Factual Background
The factual background is set forth in the Magistrate Judge’s Report

and Recommendation and is adopted here.
II.

Standard of Review
District courts review de novo those portions of a report and

recommendation to which a specific objection has been made. 28 U.S.C.
§ 636(b)(1)(C). “De novo review in these circumstances entails at least a
review of the evidence that faced the magistrate judge; the Court may
not act solely on the basis of a report and recommendation.” Spooner v.
Jackson, 321 F. Supp. 2d 867, 868-69 (E.D. Mich. 2004).
III.

Analysis
A. Summary Judgment
Summary judgment is proper where “the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court may
not grant summary judgment if “the evidence is such that a reasonable

3

jury could return a verdict for the nonmoving party.”

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
If the moving party bears the burden of persuasion at trial, “his
showing must be sufficient for the court to hold that no reasonable trier
of fact could find other than for the moving party.” Calderone v. United
States, 799 F.2d 254, 259 (6th Cir. 1986)(quotation omitted). When the
non-moving party would bear the burden of persuasion at trial, the
moving party can meet its burden under Rule 56 in one to two ways:
“[f]irst, the moving party may submit affirmative evidence that negates
an essential element of the nonmoving party's claim. Second, the
moving party may demonstrate to the Court that the nonmoving party's
evidence is insufficient to establish an essential element of the
nonmoving party's claim.” Celotex Corp. v. Catrett, 477 U.S. 317, 331
(1986). The reasoning behind this rests on the understanding that if
the “nonmoving party cannot muster sufficient evidence to make out its
claim, a trial would be useless and the moving party is entitled to
summary judgment as a matter of law.” Id. (citing Anderson, 477 U.S.
at 249).
4

B. First Amendment Retaliation
A prisoner’s claim of retaliation by prison officials for having
engaged in protected conduct is grounded in the First Amendment.
Thaddeus-X v. Blatter, 175 F.3d 378, 388 (6th Cir. 1999). There are
three elements to such a claim:
(1) the plaintiff engaged in protected conduct; (2) an adverse
action was taken against the plaintiff that would deter a
person of ordinary firmness from continuing to engage in
that conduct; and (3) there was a causal connection between
elements one and two, i.e., the adverse action was motivated,
at least in part, by the plaintiff's protected conduct.
Hall v. Nusholtz, 234 F.3d 1268, at *2 (table case) (6th Cir. 2000) (citing
Thaddeus-X, 175 F.3d at 394).

Submitting a grievance is protected

conduct. Thaddeus-X, 175 F.3d at 394. And deprivation of prescribed
medication has been found to be the type of adverse action that would
deter a prisoner of ordinary firmness. Smith v. Yarrow, 78 F. App’x
529, 540 (6th Cir. 2003) (citing Hall, 234 F.3d 1268 (6th Cir. 2000)).
The third element, causality, is evaluated under the mixed-motive
analysis set forth in Mount Healthy City School District Board of
Education v. Doyle, 429 U.S. 274 (1977); Thaddeus–X, 175 F.3d at 399.
5

Under the mixed-motive analysis, if the plaintiff has met his burden to
establish “that his conduct was a motivating factor behind any harm,”
the burden then shifts to the defendant to “show that he would have
taken the same action in the absence of the protected activity.” Smith,
78 F. App’x at 540 (citing Mount Healthy, 429 U.S. at 287; quoting
Thaddeus-X, 175 F.3d at 399).
C.

Plaintiff’s Objections

Plaintiff raises three objections to the Magistrate Judge’s Report
and Recommendation. First, he asserts that defendant Vives did not
have the authority as a nurse practitioner to modify and then
completely discontinue his medications. (Dkt. 168 at 2-3.) Second, he
asserts that he filed a grievance in January 2012 against defendant
Vives. (Id. at 3.) Third, he argues that the Magistrate Judge applied
the incorrect standard of review to the motion for summary judgment
and should have taken all allegations in the complaint as true. (Id. at
4.)
Defendant counters that Michigan health regulations give nurse
practitioners like defendant Vives the authority to adjust medications.
6

(Dkt. 169 at 2.) And since defendant was exercising her professional
judgment

in

tapering

and

ultimately

discontinuing

plaintiff’s

medication, she argues, it is outside the realm of the Court’s authority
to question that judgment.

(Id. at 3.)

Defendant also asserts that

plaintiff’s claim that he first filed a grievance against her in January
2012 is unsupported by the factual record, and that the February
grievance was filed against other individuals on the medical team, but
not against her. (Id. at 3-4.) Finally, she argues that the Magistrate
Judge applied the appropriate standards to plaintiff’s complaint. (Id. at
5.)
D. Summary Judgment for Defendant is Appropriate
Plaintiff’s complaint alleged in part that “defendant Vives Nurse
Practition[e]r at Gus Correctional Facility took all of his mental
medication after plaintiff filed a grievance on [her] in Feb. 2012 . . . .”
(Dkt. 1 at 9.) This allegation, because it was presented in a prisoner’s
complaint signed under penalty of perjury, carries the weight of an
affidavit for the purposes of summary judgment. (See id. at 14.) See
also El Bey v. Roop, 530 F.3d 407, 414 (6th Cir. 2008) (citing Lavado v.
7

Keohane, 992 F.2d 601, 605 (6th Cir. 1993); Williams v. Browman, 981
F.2d 901, 905 (6th Cir. 1992)).
However, in his objection, which was not signed under penalty of
perjury and was not supported by a sworn statement, plaintiff asserts
that he first grieved the plan to reduce his medication in January 2012.
(Dkt. 168 at 3.) And plaintiff did not include this assertion—that the
first grievance against defendant Vives was in January 2012—in his
sworn declaration submitted in support of his opposition to defendant’s
motion for summary judgment. (See Dkt. 160.) A party cannot create a
material issue of fact at summary judgment by contradicting prior
sworn statements. See Lanier v. Bryant, 332 F.3d 999, 1004 (6th Cir.
2003) (citing United States ex rel. Compton v. Midwest Specialties, Inc.,
142 F.3d 296, 303 (6th Cir. 1998); Dotson v. United States Postal Serv.,
977 F.2d 976, 978 (6th Cir. 1992)). Therefore, plaintiff’s new claim that
he first grieved defendant’s conduct in January 2012 cannot be
considered in the evaluation of defendant’s motion.
The evidence provided at summary judgment demonstrates that
on January 4, 2012, defendant conducted a twenty-minute appointment
8

with plaintiff, during which time she assessed his mood and behavior,
found no evidence of delusional thinking or hallucinations, and
documented concern that his significant medical issues, particularly his
liver problems, would be exacerbated by the “various psychotropic
drugs” he was taking.

(Dkt. 151 at 6-7.)

She also expressed some

concern that he was malingering and should have his medicine tapered
to test that theory. (Id. at 7.) Plaintiff has not provided evidence to
refute

defendant’s

evidence

that

Michigan

law

allows

nurse

practitioners to modify medication prescriptions. Moreover, the cases
cited by plaintiff to support his assertion that discontinuing his
medications can be an act of deliberate indifference to his pain are
distinguishable. In Westlake v. Lucas, medical personnel were aware of
the inmate’s bleeding ulcer and denied him treatment despite his
apparent pain and distress. 537 F.2d 857, 858-59 (6th Cir. 1976). Here,
however, defendant Vives monitored plaintiff’s condition with monthly
appointments and plaintiff did not present with symptoms suggesting
that the tapering of his medication was causing pain or distress. (See
generally Dkt. 151.)
9

The evidence also contains documentation that on February 22,
2012, plaintiff grieved his medical treatment by “RN Patricia A. Carter”
and “Dr. Brady” regarding pain in his feet (Dkt. 148-2), and on April 2,
2012, plaintiff grieved the discontinuation of his medications by
defendant Vives.

(Dkt. 148-3.)

This evidence is not rebutted by

plaintiff’s declaration at summary judgment, which provides no dates or
documentation to support his assertion that he filed three grievances
against defendant Vives. (Dkt. 160 at 2.)
Because plaintiff would have the burden at trial to demonstrate
that his grievance was the motivating factor behind defendant’s
decision to discontinue his medications, defendant must support her
motion with evidence to negate this possibility or demonstrate that
plaintiff’s evidence is insufficient. Here, defendant has met her burden
by showing that she decided on January 4, 2012, to taper and perhaps
discontinue defendant’s medications, while the earliest date on which
plaintiff grieved defendant’s actions was a month later, in February of
2012—if the Court accepts his sworn complaint as valid evidence.

10

Plaintiff engaged in protected conduct when he filed his grievance
against defendant, but there is no causal connection between his
grievance in February 2012, and defendant’s decision a month earlier to
taper medications out of concern for side effects to his liver and possible
malingering.

Without this causal connection, there can be no

retaliation. See Thaddeus-X, 175 F.3d at 399. Because defendant has
demonstrated that the undisputed facts do not support plaintiff’s case,
defendant is entitled to summary judgment on the remaining claim of
retaliation. Celotex Corp., 477 U.S. at 331.
IV.

Plaintiff’s Additional Requests
In plaintiff’s brief outlining his objections to the Magistrate

Judge’s Report and Recommendation, he made three other statements,
which the Court liberally construes to be requests, rather than
objections.

The first request appears to suggest that because of his

confinement in the Oakland County Jail, plaintiff lacks access to
essential evidence in support of his case.

(Dkt. 168 at 1.)

Second,

plaintiff requests that a section of the Report and Recommendation be

11

sealed, as it details his sensitive medical information. (Id. at 2.) And
third, plaintiff requests appointment of pro bono counsel. (Id.)
Plaintiff does not indicate what evidence he has at his home that
is unavailable to him in jail, or how that evidence would support his
stated objections to the Report and Recommendations. And given the
conclusion reached above through consideration of the undisputed
facts—that defendant’s decision to taper plaintiff’s medications came
before his first grievance against defendant—there is no basis to believe
that some unspecified evidence exists in plaintiff’s possession that
would alter this analysis.
While requests to seal court opinions are rare, and granting them
even rarer, sensitive medical information can, on occasion, warrant
such protection. See Federal Judicial Center, Sealed Cases in Federal
Courts 9 (October 23, 2009). However, the local rules of this Court
require plaintiff to submit a motion and proposed order indicating the
authority for sealing, the identification of the item or items to be sealed,
the reason such sealing is necessary, and explaining why no other
method besides sealing the items would achieve plaintiff’s interest.
12

Local R. 5.3(b)(2)(A). This motion must be accompanied by a supporting
brief. Id. Should plaintiff desire to have the Court seal any materials
in this matter, he must file a motion that includes the above
components as required by Local Rule 5.3(b)(2)(A) by no later than
July 11, 2016.
Because summary judgment has been entered in favor of
defendant, this case is dismissed in its entirety. Therefore, plaintiff’s
request for counsel is denied as moot.
V.

Conclusion
Accordingly, the Magistrate Judge’s Report and Recommendation

(Dkt. 164) is ADOPTED;
Defendant’s motion for summary judgment (Dkt. 148) is
GRANTED;
Plaintiff is GRANTED leave to file by no later than July 11,
2016 a motion to seal portions of the record.
This case is DISMISSED with prejudice.
IT IS SO ORDERED.
13

Dated: June 8, 2016
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on June 8, 2016.
s/Felicia M. Moses
FELICIA M. MOSES
Case Manager

14