Hardison v. Murphy et al

Filing 23

OPINION and ORDER Adopting the 21 Magistrate Judge's Report and Recommendation to Grant Defendants' 15 Motion for Summary Judgment - Signed by District Judge Judith E. Levy. (FMos)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Anthony Hardison,
Plaintiff,
v.

Case No. 14-cv-10939
Hon. Judith E. Levy
Mag. Judge David R. Grand

Cyndi Murphy, Karen Horton, and
Richard Cady,
Defendants.
________________________________/
OPINION AND ORDER ADOPTING THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION [21] TO GRANT
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [15]
This is a prisoner civil rights case. Pending is Magistrate Judge
David R. Grand’s Report and Recommendation (Dkt. 21) to grant the
Michigan Department of Corrections defendants’ motion for summary
judgment.
I.

Background
The Court adopts the Report and Recommendation’s statement of

facts, as plaintiff objects only to whether those facts create a genuine

issue of material fact sufficient to deny defendants’ motion for summary
judgment.
II.

Standard of Review
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
jury could return a verdict for the nonmoving party.”

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248. The Court “views the evidence,
all facts, and any inferences that may be drawn from the facts in the
light most favorable to the nonmoving party.” Pure Tech Sys., Inc. v.
Mt. Hawley Ins. Co., 95 F. App'x 132, 135 (6th Cir. 2004) (citing
Skousen v. Brighton High Sch., 305 F.3d 520, 526 (6th Cir.2002)).
Following a magistrate judge’s report and recommendation, “any
party may serve and file written objections to such proposed findings
and recommendations” within fourteen days. 28 U.S.C. § 636(b). The
district court “shall make a de novo determination of those portions of
the report or specified proposed findings or recommendations to which
objection is made.” Id. The district court “may accept, reject, or modify,
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in whole or in part, the findings or recommendations made by the
magistrate judge . . . [and] also receive further evidence or recommit the
matter to the magistrate judge with instructions.” Id.
III.

Analysis

Plaintiff raises two objections to the Magistrate Judge’s Report
and Recommendation, each relating to his Eighth Amendment claim.
The first objection is that a material question of fact exists
because plaintiff “submitted numerous request [sic] to the appropriate
healthcare provider with no success concerning bloody episodes with his
feet due to the shoes that was [sic] provided him.”

(Dkt. 22 at 3.)

Because those requests for new shoes were unsuccessful, plaintiff
experienced severe pain and bleeding as a result of walking in the
orthopedic shoes he was provided. (Id.)
Plaintiff asserted a claim against Registered Nurse Cyndi Murphy
(“RN Murphy”) for deliberate indifference to his serious medical needs
under the Eighth Amendment. (Dkt. 1 at 3-4, 5.) “A prison official acts
with deliberate indifference if he knows of a substantial risk to an
inmate's health, yet recklessly disregards the risk by failing to take
reasonable measures to abate it.” Broyles v. Corr. Med. Servs., Inc., 478
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F. App'x 971, 975 (6th Cir. 2012) (internal quote marks and citations
omitted).
Plaintiff argues that he submitted requests to the “appropriate
healthcare provider.”

The Magistrate Judge found that “RN Murphy’s

affidavit makes clear that she had no authority to . . . order new
orthopedic shoes.” (Dkt. 21 at 7.) Nor is there any “evidence that RN
Murphy interfered with Hardison’s ability to obtain [new shoes] from
the staff responsible for those accommodations.”

(Id.)

Plaintiff’s

objection does not establish that RN Murphy was the “appropriate
healthcare provider” to whom he is referring. At most, the objection
establishes that plaintiff believed RN Murphy to be such a provider, but
not that she, in fact, was the appropriate healthcare provider who could
provide plaintiff with new shoes.
Plaintiff’s objection does not raise a genuine issue of material fact
as to RN Murphy’s alleged deliberate indifference to his serious medical
need. Even assuming plaintiff’s need for different shoes was a “serious
medical need,” inaction on the part of an unspecified other “healthcare
provider” does not constitute a failure to take reasonable measures on
RN Murphy’s part, as required to state an Eighth Amendment claim.
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Plaintiff’s second objection is that “the evidence inside RN
Murphy’s affidavit contradicts Policy Directive 03.04.100 of healthcare
services” and violates the Eighth Amendment. (Dkt. 22 at 5.) Plaintiff
does not provide the Court with Policy Directive 03.04.100, and so the
Court cannot determine whether RN Murphy’s affidavit (Dkt. 15-2)
contradicts the Directive. Further, even if the affidavit did contradict
Policy Directive 03.04.100, the Court would have to first determine
whether the Directive creates a duty under which noncompliance could
give rise to a valid Eighth Amendment claim in this case.
Plaintiff also states that “[d]rawing all reasonable inferences in
Hardison’s behalf, this court would have to conclude that Plaintiff
Hardison sent multiple kites to healthcare complaining of the
orthopedic shoes.” (Dkt. 22 at 5.)1 The Report and Recommendation
took plaintiff’s multiple kites into account in its analysis. (See Dkt. 21
at 7.)

The issue, however, is whether there is a genuine issue of

material fact as to whether RN Murphy was deliberately indifferent to
plaintiff’s requests for medical care when she lacked the authority to act
on them. Plaintiff does not dispute that RN Murphy was unable to help

1

A “kite” is a written request by a prisoner.
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him obtain new shoes, and he does not provide any evidence or
argument that would create a genuine issue of material fact about her
ability to do so.
Finally, plaintiff argues that the urine bottle and cap he was given
constituted “a serious risk of contamination” because “it spills urine
when discharging and constitutes contamination because urine leaks
from the container’s lid.” (Dkt. 22 at 6-7.) This allegation is not in
plaintiff’s complaint, and raises a new theory of liability for the first
time.
As a threshold matter, plaintiff’s objection does not specifically
respond to the Report and Recommendation, but instead objects
because the Magistrate Judge did not consider facts that were not
contained in the record.
However, even if plaintiff’s objection were valid, it would not raise
a genuine issue of material fact. Plaintiff appears to allege that his
urine cap and bottle created a substantial risk to his health because the
cap and bottle did not have a proper seal, and leaking urine could
contaminate something in his environment. However, in order to state
a claim under the Eighth Amendment, an official must know of the
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substantial risk to a plaintiff’s health and recklessly disregard the risk
by failing to take reasonable measures to abate it. Broyles, 478 Fed.
Appx. at 975. A plaintiff must demonstrate that “(1) the official was
aware of facts from which an inference could be drawn that a
substantial risk of serious harm existed, and (2) the official actually
drew the inference.” (Dkt. 21 at 5 (citing Farmer v. Brennan, 511 U.S.
825, 837 (1994).)
Plaintiff has not alleged that any defendant in this case was
aware of any fact from which an inference could be drawn that there
was a substantial risk of serious harm of “contamination” from the
alleged leaky urine cap and bottle, or that any official did or could have
drawn such an inference.
Accordingly, plaintiff’s objections do not raise a genuine issue of
material fact, summary judgment is appropriate in this case.
IV.

Conclusion

For the reasons set forth above, it is hereby ordered that:
Magistrate Judge David R. Grand’s Report and Recommendation
(Dkt. 21) is ADOPTED; and
Plaintiff’s complaint is DISMISSED WITH PREJUDICE.
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IT IS SO ORDERED.
Dated: March 9, 2015
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 March 9, 2015.

s/Felicia M. Moses
FELICIA M. MOSES
Case Manager

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