Whitfield #204557 v. Whalen et al

Filing 46

MEMORANDUM OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 43 , and GRANTING Defendants Whalen, Hix, Barrett, Kelley, and Hamilton's motion for summary judgment 24 ; The claims against Nurse Joan Beisiada are DISMISSED without prejudice; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF MICHIGAN S O U T H E R N DIVISION

D A N IE L WHITFIELD, P l a in tif f , v. M IC H A E L WHALEN, et al., D e f e n d a n ts . _________________________/ F ile No. 1:07-CV-399 H O N . ROBERT HOLMES BELL

M E M O R A N D U M OPINION AND ORDER T h is matter is before the Court on an action brought by Plaintiff Daniel Whitfield p u rs u a n t to 42 U.S.C. § 1983 against various correctional facility employees, including H e a lth c a re Unit Manager Michael Whalen and Nurses Todd Hix, Mark Kelley, William B arrett, and Tamerla Hamilton ("Defendants"). Defendants filed a motion for summary ju d g m e n t on Plaintiff's claims on October 30, 2008. (Dkt. No. 24.) On July 21, 2009, M a g is tra te Judge Joseph G. Scoville issued a report and recommendation ("R&R") re c o m m e n d in g that Defendants' motion for summary judgment be granted and that judgment b e entered in their favor on all of Plaintiff's claims. (Dkt. No. 43.) Plaintiff filed objections to the R&R on July 31, 2009. (Dkt. No. 44.) This Court is required to conduct a de novo review of those portions of the R&R to w h ic h specific objection has been made, and may accept, reject, or modify any or all of the

M ag istrate Judge's findings or conclusions. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). O n ly those objections that are specific are entitled to de novo review. Mira v. Marshall, 806 F .2 d 636, 637 (6th Cir. 1986) (per curiam). "The filing of vague, general, or conclusory o b je c ti o n s does not meet the requirement of specific objections and is tantamount to a c o m p le te failure to object." Cole v. Yukins, 7 F. App'x 354, 356 (6th Cir. 2001)

(u n p u b lis h e d ) (citing Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995)). Plaintiff objects to the R&R's determination that Defendants were not "deliberately in d if f ere n t" to Plaintiff's toe injury. Plaintiff claims that Dr. Chase, who eventually removed P la in tif f 's toenail, informed him that if he had waited any longer to have the toenail removed, th e infection may have required removal of the entire toe. Plaintiff claims that this

d e m o n s tra te s that Defendants were deliberately indifferent toward Plaintiff's injury. H o w e v e r, Defendants examined and treated Plaintiff's toe on nine occasions between the in ju ry and the nail-removal operation. (Dkt. No. 34, at 1-13.) Defendants provided Plaintiff w ith bandages for the wound, antibiotic creams, prescriptions and laboratory testing. D e f en d a n ts treated Plaintiff as they deemed appropriate based on their estimation of the s e v e rity of the injury. The fact that Defendants may have underestimated the severity of the in ju ry does not mean that they were deliberately indifferent toward Plaintiff's needs. See S a n d e rfe r v. Nichols, 62 F.3d 151, 154 (6th Cir. 1995) ("Deliberate indifference . . . does not in c lu d e negligence in diagnosing a medical condition." (citing Estelle v. Gamble, 429 U.S. 9 7 , 104-05 (1976))); see also Rumsey v. Martin, 28 F. App'x 500, 501-02 (6th Cir. 2002)

2

(d is m is s in g Eighth Amendment claim when prisoner admitted he was given treatment but c o m p la in e d about the type of treatment). In addition to determining that Defendants were not deliberately indifferent toward P la in tif f 's toe injury, the Magistrate Judge determined that "Plaintiff falls far short of s a tis f yin g the objective component" of the test for an Eighth Amendment violation, namely, th a t Plaintiff's medical needs be "serious." (Dkt. No. 43, at 6.) Plaintiff does not object to this determination, and the Court does not believe it to be erroneous. Thus, even if the Court w e re to conclude that Defendants were deliberately indifferent toward Plaintiff's toe injury, it would still agree that Plaintiff's condition did not rise to the level of seriousness required fo r an Eighth Amendment violation, and thus Plaintiff's claim must still fail at the summary ju d g m e n t stage. Plaintiff's complaint also asserts claims against Nurse Joan Biesiada. In light of its o b s e rv a tio n that "Nurse Joan Biesiada has never been served with process in the more than tw o years since plaintiff filed his complaint on April 23, 2007," the R&R recommends d is m is s a l of the claims against Nurse Joan Biesiada without prejudice. The R&R also notes th a t it "serves as plaintiff's notice of the impending dismissal of all his claims against Nurse J o a n Biesiada" for purposes of Rule 4(m) of the Federal Rules of Civil Procedure. Plaintiff h a s not served Nurse Biesiada. Thus, the Court will dismiss the claims against Nurse B ies iad a without prejudice in accordance with Rule 4(m) of the Federal Rules of Civil P ro c e d u re .

3

A c c o r d i n g l y, I T IS HEREBY ORDERED that Plaintiff's objections to the report and re c o m m e n d a tio n (Dkt. No. 44) are OVERRULED. I T IS FURTHER ORDERED that the report and recommendation (Dkt. No. 43) is A P P R O V E D and, combined with the discussion set forth herein, ADOPTED as the opinion o f the Court. I T IS FURTHER ORDERED that the motion for summary judgment filed by D e f e n d a n ts Whalen, Hix, Barrett, Kelley, and Hamilton (Dkt. No. 24) is GRANTED. I T IS FURTHER ORDERED that the claims against Nurse Joan Beisiada are D I S M I S S E D without prejudice. A judgment consistent with this memorandum opinion and order shall be entered.

Dated: May 20, 2010

/s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE

4