Richmond v. Huq, MD et al

Filing 83

OPINION AND ORDER granting 53 Motion for Summary Judgment; granting 54 Motion for Summary Judgment; granting 55 Motion for Summary Judgment; granting 56 Motion for Summary Judgment; granting 57 Motion for Summary Judgment; granting [58 ] Motion for Summary Judgment; granting 59 Motion for Summary Judgment; granting 60 Motion for Summary Judgment; granting 61 Motion for Summary Judgment; granting 62 Motion for Summary Judgment; granting 63 Motion for Summary Judgment; granting 64 Motion for Summary Judgment. Signed by District Judge John Corbett O'Meara. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MELISA RICHMOND,
Plaintiff,
Case No. 14-14892
v.
Hon. John Corbett O’Meara
RUBAB HUQ, M.D., et al.,
Defendants.
____________________________/

OPINION AND ORDER GRANTING
DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT
Before the court are twelve motions for summary judgment filed by
Defendants. The court heard oral argument on September 22, 2016, and took the
matter under advisement. For the reasons explained below, Defendants’ motions
are granted.
BACKGROUND FACTS
Plaintiff Melisa Richmond alleges that she was denied medical treatment
while at the Wayne County Jail from December 2012 to February 2013.
Defendants are physicians Rubab Huq and Thomas Clafton; nurse practitioner
Marie Shoulders; resident nurses Jacqueline Lonberger, Shevon Fowler, April
Williams, Felecia Coleman, and Maxine Hawk; medical assistant Danielle Allen;

and psychiatric social workers Agron Myftari and Patricia Rucker.
Plaintiff was arrested during a domestic disturbance on December 25, 2012.
While in the back of the police car, Plaintiff set her shirt on fire with a lighter and
suffered burns to her right breast and torso. The police took her to the hospital,
where Plaintiff was diagnosed with first and second degree burns. Plaintiff was
discharged the same day into police custody, with prescriptions for pain medication
and Silvadene skin cream.
Plaintiff was taken to the Wayne County Jail after her arraignment on
December 26, 2012. Plaintiff was booked and then screened for medical and
mental health issues by a medical assistant. Defs.’s Ex. 16. The medical assistant
referred Plaintiff for medical and mental health evaluations. Id. Two hours later
(at 10:30 p.m.), Defendant Nurse Shevon Fowler examined Plaintiff, changed her
wound dressing, and phoned the on-call doctor. The doctor prescribed
Hydrocodone (Lortab), a narcotic painkiller, and daily wound dressing changes.
The next morning, on December 27, 2012, Defendant Nurse Maxine Hawk
changed Plaintiff’s dressing in the jail clinic. Plaintiff was given two doses of
Hydrocodone that day. On December 28, 2012, Plaintiff received three doses of
Hydrocodone. She was also examined by Defendant Rubab Huq, M.D., who
changed her wound dressing. See Defs.’ Ex. 18 (electronic medical record). In
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addition to the treatment previously ordered, Dr. Huq prescribed antibiotics and
Motrin for pain and ordered a follow up for January 10, 2013. Plaintiff was
permitted to carry the Motrin on her person and dispense it herself.
Also on December 28, Plaintiff saw Defendant Agron Myftari, a psychiatric
social worker, who provided mental health screening. Plaintiff told Myftari about
her history of bipolar disorder and current medications (Prozac and Xanax).
Myftari found Plaintiff to have “mild-moderate symptoms of depression and
anxiety” but noted that she “denied suicidal ideation.” Pl.’s Ex. 13. Myftari set up
an appointment for Plaintiff with a psychiatrist for January 11, 2013. In doing so,
Myftari judged that Plaintiff did not require in-patient mental health treatment, but
was stable enough to wait for an appointment in the normal course. See Myftari
Dep. at 79-80.
On December 29, 2012, Plaintiff received three doses of Hydrocodone. She
allegedly refused a dressing change from Defendant Nurse Jacqueline Lonberger.
Plaintiff contends that Nurse Lonberger was unnecessarily rough in attempting to
change the dressing, causing her pain. Nurse Lonberger did change Plaintiff’s
dressing the next day, when Plaintiff also received two doses of Hydrocodone.
From December 31, 2012, until January 4, 2013, Plaintiff’s dressings were
changed once a day by Nurse Hawk, with the exception of January 3, when
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Plaintiff was in court. On those dates, Plaintiff received two doses of
Hydrocodone.
On January 5, 2013, Plaintiff’s dressing was changed by Defendant Medical
Assistant Danielle Allen. She received two doses of Hydrocodone. On January 6,
2013, there is no record of a dressing change, but Plaintiff received two doses of
Hydrocodone. On January 7, 2013, Allen changed Plaintiff’s dressing and Plaintiff
was given three doses of Hydrocodone. On that same date, Plaintiff saw
Defendant Patricia Rucker, a psychiatric social worker, to ask about obtaining
psychiatric medication. Because Plaintiff did not mention that she had already
been evaluated, Rucker sent Plaintiff to the mental health unit for an evaluation.
There, the social worker (Jim Gilfix) found that Plaintiff already had an
appointment for January 11, 2013, and that she “seems stable [and] denies feeling
suicidal.” Defs.’ Ex. 18. Gilfix determined that Plaintiff could wait for her January
11 appointment.
Also on January 7, 2013, Plaintiff submitted a grievance, complaining that
her “medical needs are being neglected . . . [Their] excuse is they are busy ... the
nurse won’t come & give me clean bandages or burn cream here I need to go to the
hospital. . . .” Pl.’s Ex. 8. It does not appear that the grievance was acted upon
because it was not referred for action until Plaintiff had already been released from
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jail.
Although Plaintiff received three doses of Hydrocodone on January 8, there
is no record of a dressing change. On January 9, 2013, Plaintiff received three
doses of Hydrocodone and Allen changed her dressing. On January 10, 2013,
Plaintiff received two doses of Hydrocodone. Allen noted that she was unable to
change Plaintiff’s dressing because Plaintiff was in court.
On January 11, Plaintiff received two doses of Hydrocodone. She was also
triaged by Nurse April Williams before being seen by Thomas Clafton, M.D., and
Nurse Practitioner Marie Shoulders. Dr. Clafton ordered addition medications for
Plaintiff: Ultram (Tramadol, a painkiller), Santyl (ointment), and Silvadene
(antimicrobial ointment). On that same day, Plaintiff also saw psychiatrist Lisa
Hinchman, who diagnosed Plaintiff with bipolar disorder, depression, and PTSD.
Dr. Hinchman prescribed Vistaril (anti-anxiety), Celexa (antidepressant), and
Trazodone (antidepressant).
On January 12, 2013, Plaintiff received three doses of Hydrocodone and her
dressing was changed at the jail clinic. On January 13, 2013, Plaintiff received
three doses of Hydrocodone; and she received two doses the next day. Her
prescription for Hydrocodone expired on January 13. Plaintiff’s prescription for
the painkiller Tramadol was in effect from January 11 to January 24, 2013.
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Plaintiff was provided a refill of ibuprofen on February 5, 2013.
On January 16, 19, 20, 21, and 22, Plaintiff’s dressings were changed in the
jail clinic. On January 21, 2013, Medical Assistant Allen noted that she provided
extra dressings to Plaintiff so that she could change the dressing herself after she
showered. On January 27, 2013, Plaintiff was provided with wound dressing
supplies to change her dressing herself.
On January 29, 2013, Plaintiff was screened by Defendant Nurse Felecia
Coleman before she was seen by Nurse Practitioner Shoulders. Plaintiff
complained that “her burns are worse and infected.” When Shoulders saw her, she
complained of having a cold and seasonal allergies. Plaintiff also claimed that she
has not had her creams for the past week and has been unable to do dressing
changes. See Defs.’ Ex. 18. Shoulders noted that Plaintiff’s burn “has various
stages of healing” but “no odor present, no signs of infection.” Id. Shoulders noted
that dressing changes are to be done “2 times daily by patient” and that “Patient
verbalized understanding of instructions and willingness to comply.” Id.
After January 29, 2013, there is no record of any further formal medical
encounters before Plaintiff’s release from jail on February 13, 2013. After her
release, Plaintiff visited Dr. Andrei Katychev regarding her burn wound. Dr.
Katychev applied Silvadene cream and a dressing and did not note any sign of
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infection. He referred Plaintiff to the Detroit Medical Center’s Burn Center for
further evaluation.
Plaintiff went to the Detroit Medical Center on February 19, 2013. Because
Plaintiff’s wound was not completely healing by itself, the DMC determined that a
skin graft would be appropriate and performed the procedure on February 22,
2013.
Plaintiff filed this action on December 24, 2014, alleging that Defendants
violated her Eighth Amendment right to be free from cruel and unusual
punishment. Specifically, Plaintiff contends that the medical staff did not ensure
that she was provided all of the dressing changes and pain medication that was
ordered, despite her requests. Plaintiff also complains that she received no
psychiatric treatment or medication during her first twenty days in the Wayne
County Jail.
LAW AND ANALYSIS
A prisoner’s Eighth Amendment right is violated when prison doctors or
officials are deliberately indifferent to the prisoner’s serious medical needs. See
Estelle v. Gamble, 429 U.S. 97, 104 (1976); Comstock v. McCrary, 273 F.3d 693,
702 (6th Cir. 2001). An Eighth Amendment claim has two components, one
objective and the other subjective. Comstock, 273 F.3d at 702. “To satisfy the
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objective component, the plaintiff must allege that the medical need at issue is
‘sufficiently serious.’” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)).
“To satisfy the subjective component, the plaintiff must allege facts which, if true,
would show that the official being sued subjectively perceived facts from which to
infer substantial risk to the prisoner, that he did in fact draw the inference, and that
he then disregarded that risk.” Id. (citing Farmer, 511 U.S. at 837). “The
requirement that the official [has] subjectively perceived a risk of harm and then
disregarded it is meant to prevent the constitutionalization of medical malpractice
claims; thus, a plaintiff alleging deliberate indifference must show more than
negligence or the misdiagnosis of an ailment.” Comstock, 273 F.3d at 703 (citing
Estelle, 429 U.S. at 106).
When a prison doctor provides treatment, albeit
carelessly or inefficaciously, to a prisoner, he has not
displayed a deliberate indifference to the prisoner’s
needs, but merely a degree of incompetence which does
not rise to the level of a constitutional violation. On the
other hand, a plaintiff need not show that the official
acted “for the very purpose of causing harm or with
knowledge that harm will result.” Instead, “deliberate
indifference to a substantial risk of serious harm to a
prisoner is the equivalent of recklessly disregarding that
risk.”
Id. at 703 (citations omitted). In other words, “[d]eliberate indifference is
characterized by obduracy or wantonness – it cannot be predicated on negligence,
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inadvertence, or good faith error.” Reilly v. Vadlamudi, 680 F.3d 617, 624 (6th Cir.
2012). Moreover, “[w]here a prisoner has received some medical attention and the
dispute is over the adequacy of the treatment, federal courts are generally reluctant
to second guess medical judgments and to constitutionalize claims which sound in
state tort law.” Westlake v. Lucas, 537 F.2d 857, 860 n.5 (1976). See also
Alspaugh v. McConnell, 643 F.3d 162, 169 (6th Cir. 2011) (“However, it is
possible for medical treatment to be ‘so woefully inadequate as to amount to no
treatment at all.’”).
Plaintiff contends that she should have received wound dressing changes
twice a day and that she did not receive all of the prescribed doses of pain
medication.1 The medical record does indicate that there were days when dressing
changes or doses of pain medication were missed. There is no evidence, however,
that any treatment was intentionally withheld. (For example, the record indicates
that doses of pain medication or dressing changes may have been missed because
Plaintiff was in court or sleeping.) This distinguishes this case from Boretti v.
Wiscomb, 930 F.2d 1150 (1991) in which the nurse refused to contact a doctor,

1

Although the hospital discharge instructions called for twice a day dressing
changes, the on-call jail doctor prescribed dressing changes once per day. Plaintiff’s
treatment sheet also called for dressing changes once per day. See Defs.’ Ex. 17, Ex. 18,
EMR Note 1/11/13.
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give the plaintiff dressings for his wound, or give him pain medication. See also
Alspaugh, 643 F.3d at 169 (noting that although the plaintiff “certainly would have
desired more aggressive treatment, he was at no point denied treatment”).
Additionally, Plaintiff has not specifically identified a single Defendant who
refused to provide treatment for her wound, or provided treatment “so woefully
inadequate as to amount to no treatment at all.” Id. Rather, Plaintiff lumps together
the alleged failings of the medical staff. “Plaintiff must state a plausible
constitutional violation against each individual defendant – the collective acts of
defendants cannot be ascribed to each individual defendant.” Reilly, 680 F.3d at
626 (emphasis added). Plaintiff has not identified a Defendant who was
responsible for changing her dressings or giving her pain medication on any given
day and who refused to do it or ignored the responsibility. At most, any failures in
this regard appear to be the result of negligence, not deliberate indifference.
Specifically, with respect to Dr. Clafton and Dr. Huq, Plaintiff complains
that they should have sent her to a burn specialist and provided her with supplies to
change her own dressing. Although Plaintiff was dissatisfied with the treatment
she received from Drs. Clafton and Huq, it cannot be termed “so woefully
inadequate as to amount to no treatment at all.” Alspaugh, 643 F.3d at 169.
Plaintiff’s disagreement with how Drs. Clafton and Huq should have handled their
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responsibilities does not state a claim for deliberate indifference.
With respect the nursing staff – Shevon Fowler, Jacqueline Lonberger,
Maxine Hawk, Marie Shoulders, April Williams, Felecia Coleman, and Danielle
Allen – Plaintiff primarily contends that they did not provide ordered dressing
changes and/or provide dressing supplies. As discussed above, Plaintiff fails to
specify any particular nurse or medical assistant who was responsible for changing
Plaintiff’s dressing on a particular date and who failed to do so.
Plaintiff also claims that Nurse Lonberger cleaned her wound in a manner
that caused her pain. See also Lonberger Dep. (“I’m quite sure I told her it’s going
to hurt, it’s a burn.”). This does not rise to the level of deliberate indifference.
See, e.g., Quezada v. Larenson, 2015 WL 2399722, at *2 (C.D. Ill. May 18, 2015)
(“In Plaintiff's case, a reasonable juror would be hard-pressed to say that cleaning a
wound, applying ointment and bandages to prevent infection, and then
administering pain medication was a substantial departure from the treatment that
Plaintiff would have received from any professional medical provider. At least
some pain could be expected from the nature of the injury, and Plaintiff admitted in
his deposition that there was no other way to remove the grits from his wound.”);
Edwards v. Wheat, 2015 WL 926071, at *6 (N.D. Ala. Mar. 4, 2015) (“In this case,
even assuming the nurse defendants caused the plaintiff pain by removing a portion
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of his skin while attempting to remove debris and necrotic tissue from his wound
and even if such action could constitute medical malpractice, that action would not
rise to the level of a constitutional violation.”).
Plaintiff also complains that she had to wait 20 days before seeing a
psychiatrist and receiving psychiatric medications. Plaintiff contends that Huq,
Clafton, Myftari, Rucker, and Fowler all were aware of her mental health history
the fact that she had been taking psychiatric medication. Plaintiff has not shown,
however, that she had a psychiatric need requiring immediate treatment at the
Wayne County Jail. Myftari determined that Plaintiff was stable and that she could
wait for her appointment with the psychiatrist, as did Gilfix, another psychiatric
social worker who is not a defendant here. Plaintiff was not ignored or denied
treatment; rather, a judgment was made that she could wait. This is the type of
medical judgment that federal courts are generally reluctant to second guess.
Under the circumstances presented here, Plaintiff cannot show any of the
Defendants acted with deliberate indifference in determining that she did not need
immediate mental health treatment.
Because Plaintiff has not shown that any of the individual defendants were
deliberately indifferent to her medical needs, she also cannot establish liability on
the part of Wayne County. See Blackmore v. Kalamazoo Cty., 390 F.3d 890, 900
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(6th Cir. 2004) (“A municipality or county cannot be liable under § 1983 absent an
underlying constitutional violation by its officers.”).
ORDER
IT IS HEREBY ORDERED that Defendants’ motions for summary
judgment [Docket Nos. 53-64] are GRANTED.

s/John Corbett O’Meara
United States District Judge
Date: October 5, 2016

I hereby certify that a copy of the foregoing document was served upon
counsel of record on this date, October 5, 2016, using the ECF system.

s/William Barkholz
Case Manager

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