Caruthers #404654 v. Correctional Medical Services, Inc. et al
OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
RANDY WAYNE CARUTHERS,
SERVICES, INC., et al.,
Case No. 1:10-cv-274
Honorable Robert Holmes Bell
This is a civil rights action brought pro se by a state prisoner under 42 U.S.C. § 1983.
The defendants are Correctional Medical Services, Inc. (CMS), Badawi Abdellatif, M.D., Prison
Health Services, Inc. (PHS), and Scott Holmes, M.D. Plaintiff states that he injured his left knee on
May 21, 2007. He alleges that Dr. Abdellatif violated his rights under the Eighth Amendment’s
Cruel and Unusual Punishments Clause by treating his knee in 2007 and 2008 with braces and other
conservative care. On January 2, 2009, plaintiff received arthroscopic knee surgery. Plaintiff alleges
that Dr. Holmes violated his Eighth Amendment rights in 2009 when his treatment failed to include
a second knee surgery that plaintiff desires. Plaintiff alleges Dr. Abdellatif was a CMS employee
and that Dr. Holmes was a PHS employee.
The matter is before the court on defendants’ motions for summary judgment.
(docket #s 63, 64). Plaintiff has filed his response. (docket # 74). On May 31, 2011, defendants
filed a reply brief (docket # 75) in which they objected to plaintiff’s statement of facts because it was
not supported by evidence. See FED . R. CIV . P. 56(c)(2). Upon review, the court sustains
defendants’ objections. However, even assuming plaintiff had supported his statement of facts with
evidence, the result would be unaltered. Plaintiff’s disagreement with the medical treatment he has
received for his left knee problems falls short of an Eighth Amendment violation. Defendants’
motions for summary judgment will be granted and judgment will be entered in defendants’ favor
on all plaintiff’s claims.
Summary Judgment Standard
Summary judgment is appropriate when the record reveals that there are no genuine
issues as to any material fact in dispute and the moving party is entitled to judgment as a matter of
law. FED . R. CIV . P. 56(a); Kizer v. Shelby County Gov’t, 649 F.3d 462, 466 (6th Cir. 2011). The
standard for determining whether summary judgment is appropriate is “whether ‘the evidence
presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law.’” Pittman v. Cuyahoga County Dep’t of Children &
Family Servs., 640 F.3d 716, 723 (6th Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251-52 (1986)). “The court need consider only the cited materials, but it may consider other
materials in the record.” FED . R. CIV . P. 56(c)(3). The court must draw all justifiable inferences in
favor of the party opposing the motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986); Adams v. Hanson, 656 F.3d 397, 401 (6th Cir. 2011).
A party asserting that a fact cannot be genuinely disputed must support the assertion
as specified in Rule 56(c)(1). FED . R. CIV . P. 56(c)(1). Once the movant shows that “there is an
absence of evidence to support the nonmoving party’s case,” the nonmoving party has the burden
of coming forward with evidence raising a triable issue of fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). To sustain this burden, the nonmoving party may not rest on the mere allegations
of his pleadings. FED . R. CIV . P. 56(e)(2), (3); see Bozung v. Rawson, No. 10-1050, __ F.3d __,
2011 WL 4634215, at * 5 (6th Cir. Oct. 7, 2011). The motion for summary judgment forces the
nonmoving party to present evidence sufficient to create a genuine issue of fact for trial. Street v.
J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir. 1990). “A mere scintilla of evidence is
insufficient; ‘there must be evidence on which a jury could reasonably find for the [non-movant].’”
Dominguez v. Corr. Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009) (quoting Anderson, 477 U.S.
at 252); see Hirsch v. CSX Transp., Inc., 656 F.3d 359, 362 (6th Cir. 2011).
A moving party with the burden of proof faces a “substantially higher hurdle.” Arnett
v. Myers, 281 F.3d 552, 561 (6th Cir. 2002); Cockrel v. Shelby County Sch. Dist., 270 F.3d 1036,
1056 (6th Cir. 2001). The moving party without the burden of proof needs only show that the
opponent cannot sustain his burden at trial. “But where the moving party has the burden -- the
plaintiff on a claim for relief or the defendant on an affirmative defense -- 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) (quoting W. SCHWARZER,
Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D.
465, 487-88 (1984)). The Court of Appeals has repeatedly emphasized that the party with the burden
of proof faces “a substantially higher hurdle” and “‘must show that the record contains evidence
satisfying the burden of persuasion and that the evidence is so powerful that no reasonable jury
would be free to disbelieve it.’” Arnett, 281 F.3d at 561 (quoting 11 JAMES WILLIAM MOORE , ET AL.,
MOORE ’S FEDERAL PRACTICE § 56.13, at 56-138 (3d ed. 2000)); Cockrel, 270 F.2d at 1056
(same). Accordingly, a summary judgment in favor of the party with the burden of persuasion “is
inappropriate when the evidence is susceptible of different interpretations or inferences by the trier
of fact.” Hunt v. Cromartie, 526 U.S. 541, 553 (1999). This higher standard applies to the portion
of the motion for summary judgment by Dr. Holmes and PHS seeking dismissal of plaintiff’s claims
based on the affirmative defense provided by 42 U.S.C. § 1997e(a).
Defendants Holmes and PHS have objected to section B of plaintiff’s statement of
facts (Plf. Brief at 1-9, docket # 71-1, ID#s 703-11), which purports to be a “rebuttal” to Dr.
Holmes’s declaration and plaintiff’s medical records. (docket # 75, ID # 752). The “facts” asserted
by plaintiff are not supported by admissible evidence. Section B of plaintiff’s brief does not satisfy
the requirements for an affidavit or declaration under Rule 56(c)(4). FED . R. CIV . P. 56(c)(4); see
28 U.S.C. § 1746; see also Tenneco Auto. Operating Co. v. Kingdom Auto Parts, 410 F. App’x 841,
847-48 (6th Cir. 2010). It is well established that statements appearing in a party’s brief1 are not
evidence. Duha v. Agrium, Inc., 448 F.3d 867, 879 (6th Cir. 2006). Defendants’ objection
“functions much as an objection at trial, adjusted for the pretrial setting. The burden is on the
proponent to show that the material is admissible as presented or to explain the admissible form that
is anticipated.” FED . R. CIV . P. 56 (2010 Advisory Committee comments); see ForeWord Mag., Inc.
Plaintiff’s complaint and supplement (docket #s 1, 12) are not verified under penalty of
perjury. They cannot function as affidavits in opposition to defendants’ motions for summary
judgment. See El Bey v. Roop, 530 F.3d 407, 414 (6th Cir. 2008); Weberg v. Franks, 229 F.3d 514,
526 n.13 (6th Cir. 2000).
v. OverDrive, Inc., No. 1:10-cv-1144, 2011 WL 5169384, at * 2 (W.D. Mich. Oct. 31, 2011).
Plaintiff has not addressed, much less carried his burden. Defendants’ objections are sustained.
Standards Applicable to the Affirmative Defense of Failure to Exhaust Remedies
Defendants PHS and Dr. Holmes have asserted the affirmative defense of plaintiff’s
failure to exhaust administrative remedies. A prisoner bringing an action with respect to prison
conditions under 42 U.S.C. § 1983 must exhaust available administrative remedies. 42 U.S.C. §
1997e(a); see Jones v. Bock, 549 U.S. 199, 220 (2007); Porter v. Nussle, 534 U.S. 516, 532 (2002);
Booth v. Churner, 532 U.S. 731 (2001). A prisoner must exhaust available administrative remedies,
even if the prisoner may not be able to obtain the specific type of relief he seeks in the state
administrative process. See Porter, 534 U.S. at 520; Booth, 532 U.S. at 734. In Jones v. Bock, the
Supreme Court held that “exhaustion is an affirmative defense, and prisoners are not required to
specifically plead or demonstrate exhaustion in their complaints.” 549 U.S. at 216. The burden is
on defendants to show that plaintiff failed to properly exhaust his administrative remedies. The
Supreme Court reiterated that “no unexhausted claim may be considered.” 549 U.S. at 220. The
Court held that when a prisoner complaint contains both exhausted and unexhausted claims, the
lower courts should not dismiss the entire “mixed” complaint, but are required to dismiss the
unexhausted claims and proceed to address only the exhausted claims. 549 U.S. at 219-24.
In order to exhaust administrative remedies, prisoners must complete the
administrative review process in accordance with the deadlines and other applicable procedural rules
established by state law. Jones v. Bock, 549 U.S. at 218-19. In Woodford v. Ngo, 548 U.S. 81
(2006), the Supreme Court held that the PLRA exhaustion requirement “requires proper exhaustion.”
548 U.S. at 93. “Proper exhaustion demands compliance with an agency’s deadlines and other
critical procedural rules.” Id. at 90; see Scott v. Ambani, 577 F.3d 642, 674 (6th Cir. 2009); see also
Vandiver v. Corr. Med. Servs., 326 F. App’x 885, 888 (6th Cir. 2009). Thus, when a prisoner’s
grievance is rejected by the prison as untimely because it was not filed within the prescribed period,
the prisoner’s claim is not “properly exhausted” for purposes of filing a § 1983 action in federal
court. 548 U.S. at 90-93; see 42 U.S.C. § 1997e(a). The procedural bar does not apply where the
State declines to enforce its own procedural rules. See Reed-Bey v. Pramstaller, 603 F.3d 322, 32425 (6th Cir. 2010).
MDOC Policy Directive 03.02.130 (effective July 9, 2007) sets forth the applicable
grievance procedures. In Sullivan v. Kasajaru, 316 F. App’x 469, 470 (6th Cir. 2009), the Sixth
Circuit held that this policy directive “explicitly required [the prisoner] to name each person against
whom he grieved,” and it affirmed the district court’s dismissal of a prisoner’s claim for failure to
properly exhaust his available administrative remedies. Id. at 470.
Policy Directive 03.02.130 is not limited to the requirement that the individual being
grieved be named in the Step I grievance. The following is an overview of the grievance process.
Inmates must first attempt to resolve a problem orally within two business days of becoming aware
of the grievable issue, unless prevented by circumstances beyond his control. Id. at ¶ P. If the
mandatory pre-grievance attempt at resolution is unsuccessful, the inmate may proceed to Step I of
the grievance process and submit a completed grievance form within five business days of the
attempted oral resolution. Id. The Policy Directive also provides the following directions for
completing Step I grievance forms: “The issues should be stated briefly but concisely. Information
provided is to be limited to the facts involving the issue being grieved (i.e., who, what, when, where,
why, how). Dates, times, places, and names of all those involved in the issue being grieved are to
be included.” Id. at ¶ R (emphasis in original). Thus, where an individual is not named in the Step
I grievance, or his or her involvement in the issue being grieved is not indicated, or the individual
is mentioned for the first time during an appeal of a denial of a grievance, the claims against that
individual are not properly exhausted. See Ketzner v. Williams, No. 4:06-cv-73, 2008 WL 4534020,
at * 16 (W.D. Mich. Sept. 30, 2008) (collecting cases); accord Sullivan v. Kasajaru, 316 F. App’x
The inmate submits the grievance to a designated grievance coordinator who makes
an initial determination whether it should be rejected under MDOC policy or assigns it to a
respondent. P.D. 03.02.130 at ¶¶ W, X. If the inmate is dissatisfied with the Step I response, or does
not receive a timely response, he may appeal to Step II by obtaining an appeal form within ten
business days of the response, or if no response was received, within ten business days after the
response was due. Id. at ¶ BB. The respondent at Step II is designated by the policy. The Step II
respondent for grievances regarding health care issues is the Regional Health Administrator or the
Administrator’s designee. Id. at ¶ DD. If the inmate is dissatisfied with the Step II response, or does
not receive a timely Step II response, he may appeal to Step III using the same appeal form. Id. at
¶ FF. The Step III appeal form must be sent to the Grievance and Appeals Section within ten
business days after receiving the Step II response, or if no Step II response was received, within ten
business days after the date the Step II response was due. Id. at ¶ FF. The Grievance and Appeals
Section is the Step III respondent. Id. at ¶ GG. The Grievance and Appeals Section forwards
grievances regarding health care issues to the Administrator of the Bureau of Health Care Services
(BHCS). The BHCS Administrator is required to ensure that the grievance is investigated and a
response provided to the Grievance and Appeals Section in a timely manner. Time limitations shall
be adhered to by the inmate and staff at all steps of the grievance process. Id. at ¶ S. “The total
grievance process from the point of filing a Step I grievance to providing a Step III response shall
generally be completed within 120 calendar days unless an extension has been approved in writing.”
Ordinarily, a prisoner must pursue appeals of his grievance through Step III of the
administrative process. The Sixth Circuit has clearly held that an inmate does not exhaust available
administrative remedies when the inmate fails to invoke the grievance procedure. Napier v. Laurel
County, Ky, 636 F.3d 218, 224 (6th Cir. 2011). An argument that it would have been futile to file
a grievance does not suffice. Assertions of futility do not excuse plaintiff from the exhaustion
requirement. Id.; Hartsfield v. Vidor, 199 F.3d 305, 309 (6th Cir.1999) (“[A]n inmate cannot simply
fail to file a grievance or abandon the process before completion and claim that he has exhausted his
remedies or that it is futile for him to do so because his grievance is now time-barred under the
regulations.”); see Booth v. Churner, 532 U.S. at 741 n. 6 (“[W]e will not read futility or other
exceptions into statutory exhaustion requirements where Congress has provided otherwise.”).
The following facts are beyond genuine issue. Plaintiff is in the custody of the
Michigan Department of Corrections (MDOC) serving lengthy prison sentences imposed in 2006
on his criminal convictions for home invasion-first degree and assault with intent to do great bodily
harm less than murder. He is currently an inmate at the G. Robert Correctional Facility (JCF) in
Jackson, Michigan. The defendants are Correctional Medical Services, Inc. (CMS), Badawi
Abdellatif, M.D., Prison Health Services, Inc. (PHS), and Scott L. Holmes, M.D.
On September 21, 2007, plaintiff stated that he injured his left knee in a slip-and-fall
in the shower at the Lakeland Correctional Facility (LCF). Plaintiff stated that before incarceration
he had experienced the same problem of his knee popping out of place when he “stepped off a
forklift.” Plaintiff’s knee had no swelling, redness, or warmth. The knee had a full range of motion.
Plaintiff was advised to keep his knee elevated and to use the over-the-counter pain medication.
Plaintiff was relieved from his work assignment for one month. (docket # 73, ID# 687-88). October
2, 2007 x-rays of plaintiff’s left knee returned normal results, with no evidence of fracture,
dislocation, or other gross osseous or articular abnormalities. (Id., ID# 688).
Dr. Abdellatif first examined plaintiff on October 12, 2007. Plaintiff had a full range
of motion, a slight amount of effusion, and a lax-feeling anterior cruciate ligament (ACL) in his left
knee. Dr. Abdellatif ordered crutches (which plaintiff declined) and a derotational knee brace. (Id.,
ID#s 690-91). Dr. Abdellatif then requested a physical therapy consultation to properly fit the brace.
Plaintiff received physical therapy and the brace was issued on December 3, 2007.
Dr. Abdelatif next saw plaintiff on January 4, 2008, after plaintiff requested to be
removed from his yard work crew assignment. (docket # 73, ID# 692). Dr. Abdellatif determined
that plaintiff was capable of performing his job with the knee brace. (Id.). When Dr. Abdellatif
examined plaintiff on May 12, 2008, plaintiff complained that despite the brace, his left knee
continued to “pop out.” (Id., ID# 693). Dr. Abdellatif found that plaintiff’s knee examination was
normal with the exception of a lax ACL. He determined that it was medically appropriate to
continue the knee brace. (Id.). On July 23, 2008, plaintiff was transferred to the Bellamy Creek
Correctional Facility (IBC), and Dr. Abdellatif had no further involvement in plaintiff’s medical
An August 21, 2008, MRI of plaintiff’s left knee revealed tear on the posterior horn
of the medial meniscus. (docket # 66, ID# 596; Holmes Decl. ¶ 3). On September 29, 2008, plaintiff
received an outside orthopedic consultation. (Holmes Decl. ¶ 3). On January 2, 2009, plaintiff
underwent surgery at Carson City Hospital. Dr. Young performed a diagnostic and surgical
arthroscopy of plaintiff’s left knee with partial resection of the medial meniscus. During this
surgery, Dr. Young noted that plaintiff had a ruptured ACL (docket # 66, ID#s 599-600; Holmes
Decl. ¶ 3). Dr. Young gave plaintiff a post-surgery prescription for a three-day supply of Ultram,
after which plaintiff was to take Motrin for any residual pain associated with the surgery. (Holmes
Decl. ¶ 4).
On January 14, 2009, Dr. Holmes examined plaintiff. Plaintiff was able to bend his
knee beyond ninety degrees. Plaintiff was wearing the ACL brace, which is designed to provide the
stability that would normally have been provided by the ACL. Plaintiff requested a prescription for
more Ultram, and Dr. Holmes acceded to this request. (Holmes Decl. ¶ 5; docket # 66, ID# 607).
On January 14, 2009, Dr. Holmes authorized plaintiff to eat meals in his cell for one week, use a
wheelchair for two weeks, and relieved plaintiff of his work assignment through February 14, 2009.
(docket # 74-2, ID# 722). On January 20, 2009, plaintiff asked that he be allowed to extend the time
in which he could receive his meals in his cell. Dr. Holmes declined this request. (Holmes Decl. ¶
6; docket # 66, ID#s 608-09). On January 23, 2009, Dr. Holmes denied plaintiff’s request for more
Ultram. Ultram is a synthetic narcotic and it was not medically appropriate treatment three weeks
post-surgery. (Holmes Decl. ¶ 7; docket # 66, ID# 611).
On January 28, 2009, Dr. Holmes conducted a follow-up examination. Dr. Holmes
instructed plaintiff on an exercise program to help strengthen his quadriceps. The quadriceps play
an important role in providing knee joint stability. “Despite being instructed to wear a brace,
[plaintiff] was not wearing one when he presented for this visit. He stated that he preferred the
wheelchair.” (Holmes Decl. ¶¶ 8, 9; docket # 66, ID#s 616-17).
On February 2, 2009, Dr. Holmes examined plaintiff. Plaintiff reported that he
preferred a cane over other assistive devices. Dr. Holmes observed that plaintiff was walking very
well using a cane. (Holmes Decl. ¶ 10; docket # 66, ID# 619). On February 4, 2009, Dr. Holmes
changed plaintiff’s prescription from Salsalate to Motrin at the patient’s request. (Holmes Decl. ¶
10; docket # 66, ID# 620).
On February 20, 2009, Janmeet Sahota, D.O, conducted a consultative examination.
(docket # 66, ID#s 622-23; docket # 74-3, ID#s 742-43). Dr. Sahota offered plaintiff a surgical
treatment option with significant attendant risks:
I would recommend that we get an MRI of his knee to rule out a lateral meniscus tear as that
would be important for preoperative planning as he has some lateral joint line pain. This
maybe just due to instability, however, I would like to know whether he has a meniscus tear
prior to proceeding with surgery. With regards to the instability that he has the only thing
I have to offer him as he has failed with ACL bracing would be an arthroscopic ACL
reconstruction. I offered the patient to have an allograft or an autograft. He chose to have
an allograft tendon and I told him that the expected recovery from such a surgery would be
four to six months. I explained to him the risks of the surgery include bleeding, infection,
risks from anesthesia, deep vein thrombosis, pulmonary embolus and even death and also a
possibility of recurrent instability if he is not compliant with physical therapy or has another
injury. He understands this and plan will be for patient to have the MRI of the left knee to
rule out a meniscus tear and to follow-up with me after that MRI is completed and at that
point we will set him up for an arthroscopic ACL reconstruction and address any meniscal
pathology as noted on this MRI.
(Id., ID#s 742-43). On April 22, 2009, Dr. Holmes filed a consultation request regarding the MRI
and ACL repair recommended by Dr. Sahota. This request was not an indication that Dr. Holmes
agreed with Dr. Sahota’s recommendations, but it was part of the review process. (Holmes Decl.
¶¶ 12-14; docket # 66, ID#s 624-25). When Dr. Sylvia McQueen inquired regarding the impact of
plaintiff’s ACL impairment, Dr. Holmes replied that plaintiff was able to walk with a cane and that
there was no impairment of his activities of daily living. McQueen recommended that plaintiff be
treated conservatively and she saw no need for the additional MRI suggested by Dr. Sahota. Dr.
Holmes agreed with Dr. McQueen’s recommendations. (Holmes Decl. ¶¶ 14, 23-25; docket # 66,
On May 16, 2009, a nurse noted that plaintiff was carrying his cane rather than using
it. Plaintiff walked rapidly without a limp. (Holmes Decl. ¶ 15; docket # 66, ID# 630). On June 22,
2009, a nurse practitioner noted that plaintiff was walking without using his cane very much.
Plaintiff was able to stop and turn to look at females without difficulty. His gait was upright without
limp or sway. The nurse practitioner’s assessment was that plaintiff did not need a cane. Her plan
was to have plaintiff sent to Duane Waters Hospital for a new brace or straps. (Holmes Decl. ¶ 18;
docket # 66, ID# 635). On June 23, 2009, plaintiff was provided with a new knee brace. Progress
notes indicate that plaintiff was satisfied with the fit of his new brace. Plaintiff was very dissatisfied
when he was required to turn in his cane. (Holmes Decl. ¶ 19; docket # 66, ID#s 636-38). On
September 10, 2009, plaintiff asked to be moved to a lower floor at IBC. Dr. Holmes denied
plaintiff’s request because plaintiff had the strength and ability sufficient to negotiate stairs. (docket
# 66, ID# 643). On or about November 4, 2009, plaintiff was transferred from IBC to JCF. Dr.
Holmes has not treated plaintiff since this transfer. (docket # 66, ID# 649-50; Holmes Decl. ¶ 22).
Plaintiff’s medical records reveal that he continues to receive significant medical attention. (docket
# 66, ID#s 649-69).
On March 19, 2010, plaintiff filed this lawsuit.
Doctors Abdellatif and Holmes
In Estelle v. Gamble, 429 U.S. 97 (1976), the Supreme Court held that deliberate
indifference to a prisoner’s serious medical needs, manifested by prison staff’s intentional
interference with treatment or intentional denial or delay of access to medical care, amounts to the
unnecessary and wanton infliction of pain proscribed by the Eighth Amendment. Estelle, 429 U.S.
at 104-05. In judging the sufficiency of “deliberate indifference” claims, the court must view the
surrounding circumstances, including the extent of the injury, the realistic possibilities of treatment,
and the possible consequences to the prisoner of failing to provide immediate medical attention.
Westlake v. Lucas, 537 F.2d 857, 860 n.4 (6th Cir. 1976).
In Wilson v. Seiter, 501 U.S. 294 (1991), the Supreme Court clarified the deliberate
indifference standard. Under Wilson, a prisoner claiming cruel and unusual punishment must
establish both that the deprivation was sufficiently serious to rise to constitutional levels (an
objective component) and that the state official acted with a sufficiently culpable state of mind (a
subjective component). 501 U.S. at 298. No reasonable trier of fact could find in plaintiff’s favor
on the subjective component of Eighth Amendment claims against these defendants.
The objective component of the Eighth Amendment standard requires that a plaintiff
be suffering from a serious medical condition. “Because society does not expect that prisoners will
have unqualified access to health care, deliberate indifference to medical needs amounts to an Eighth
Amendment violation only if those needs are serious.” Hudson v. McMillian, 503 U.S. 1, 9 (1992).
“The objective component requires a plaintiff to show that ‘the medical need at issue is sufficiently
serious.’” Alspaugh v. McConnell, 643 F.3d 162, 169 (6th Cir. 2011)(quoting Blackmore v.
Kalamazoo County, 390 F.3d 890, 895 (6th Cir. 2004)); Jones v. Muskegon County, 635 F.3d 935,
941 (6th Cir. 2010). A reasonable trier of fact could find that plaintiff’s left knee condition satisfies
the objective component of an Eighth Amendment violation.
The second prong under Estelle requires a showing of “deliberate indifference” to
plaintiff’s serious medical need. The Supreme Court held in Farmer v. Brennan, 511 U.S. 825
(1994), that deliberate indifference is tantamount to a finding of criminal recklessness. A prison
official cannot be found liable for denying an inmate humane conditions of confinement “unless the
official knows of and disregards an excessive risk to inmate health or safety.” 511 U.S. at 837. The
Sixth Circuit’s decision in Miller v. Calhoun County, 408 F.3d 803 (6th Cir. 2005), summarized the
subjective component’s requirements:
The subjective component, by contrast, requires a showing that the prison official possessed
a sufficiently culpable state of mind in denying medical care. Deliberate indifference
requires a degree of culpability greater than mere negligence, but less than acts or omissions
for the very purpose of causing harm or with knowledge that harm will result. The prison
official’s state of mind must evince deliberateness tantamount to intent to punish.
Knowledge of the asserted serious needs or of circumstances clearly indicating the existence
of such needs, is essential to a finding of deliberate indifference. Thus, an official’s failure
to alleviate a significant risk that he should have perceived but did not, while no cause for
commendation, cannot under our cases be condemned as the infliction of punishment.
Miller, 408 F.3d at 813 (citations and quotations omitted); see Grose v. Corr. Med. Servs., Inc., 400
F. App’x 986, 987-88 (6th Cir. 2010); Dotson v. Phillips, 385 F. App’x 468, 471 (6th Cir. 2010)
(“Mere negligence does not amount to deliberate indifference, as medical malpractice does not
become a constitutional violation merely because the victim is a prisoner.”); Dominguez v. Corr.
Med. Servs., 555 F.3d 543, 550 (6th Cir. 2009) (“The subjective standard is meant to prevent the
constitutionalization of medical malpractice claims . . . .”). Where 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 constitutionalize claims which sound in state tort
law. See Alspaugh v. McConnell, 643 F.3d at 169; Westlake, 537 F.2d 860 n.5.
Plaintiff has not presented evidence sufficient to support the subjective component
of an Eighth Amendment claim for deliberate indifference to serious medical needs against Drs.
Abdellatif and Holmes. The record shows that the doctors treated plaintiff’s condition on an ongoing
basis and displayed no deliberate indifference. It is pellucid that plaintiff would prefer the
arthroscopic ACL reconstruction surgery suggested by Dr. Sahota, but he has not shown that more
conservative alternative treatment provided by defendants was medically inappropriate, much less
tantamount to criminal recklessness. See Farmer v. Brennan, 511 U.S. at 837. Plaintiff’s
disagreement with defendants’ diagnosis and treatment falls far short of supporting an Eighth
Amendment claim. See Lyons v. Brandly, 430 F. App’x 377, 380-81 (6th Cir. 2011); see also
Almond v. Pollard, No. 11-1555, 2011 WL 4101460, at * 3 (7th Cir. Sept. 15, 2011) (The prisoner
“may disagree with the course of treatment chosen, but that disagreement does not amount to
deliberate indifference.”) (citing Alspaugh v. McConnell, 643 F.3d at 169). The court finds that
defendants Abdellatif and Holmes are entitled to judgment in their favor as a matter of law on
plaintiff’s Eighth Amendment claims. No reasonable trier of fact faced with this record could find
that defendants were deliberately indifferent to plaintiff’s serious medical needs.
Prison Health Services, Inc. and Correctional Medical Services, Inc.
Plaintiff seeks to hold the corporate defendants PHS and CMS vicariously liable for
the acts of their employees. A private corporation cannot be held liable under § 1983 on the basis
of respondeat superior or vicarious liability. See Street v. Corr. Corp. of Am., 102 F.3d 810, 818
(6th Cir. 1996). Rather, the plaintiff must establish a policy or custom that caused the constitutional
violation. Ford v. County of Grand Traverse, 535 F.3d 483, 495 (6th Cir. 2008).
Plaintiff quotes purported excepts from PHS’s contract with the MDOC and argues
that PHS “failed to follow [its] own terms of [its] contract.” (Plf. Brief at 12, docket # 74-1, ID#
714). This lawsuit is not a state-law breach of contract case, and plaintiff is not a party to PHS’s
contract with the State. Further, plaintiff is not a third-party beneficiary of the contract. Plaintiff
cannot perform an “end run” around the vicarious liability rule by recasting his Eighth Amendment
claims as third-party beneficiary claims. See Haithcox v. Greiner, No. 06-11756, 2010 WL 1292712,
at * 6 (E.D. Mich. Mar. 15, 2010); accord Zimmermann v. Michigan, No. 1:11-cv-1178, 2011 WL
5881777, at * 5 (W.D. Mich. Nov. 23, 2011).
Plaintiff argues that the MDOC’s contracts with PHS and CMS are “unconstitutional”
and that defendants failed to provide him with adequate “quality assurance” regarding his healthcare.
(Plf. Brief at 12-13, 15-17, docket # 74-1, ID#s 714-15). Bare arguments do not suffice at the
summary judgment stage. Plaintiff has not presented evidence of a custom or policy sufficient to
establish entitlement to relief against PHS and CMS. See Barnett v. Luttrell, 414 F. App’x 784, 790
(6th Cir. 2011); Grose v. Corr. Med. Servs., Inc., 400 F. App’x at 989.
On an alternative basis, defendants PHS and Dr. Holmes are entitled to dismissal of
plaintiff’s claims based on the affirmative defense that plaintiff did not properly exhaust his available
administrative remedies as required by 42 U.S.C. § 1997e(a). Defendants have supplied evidence
that the grievances plaintiff filed and pursued through Step III decisions do not correspond to any
of the claims he is asserting against Dr. Holmes and PHS. (docket # 64-3, ID#s 544-46, 548-49,
558-63, 568-72). Plaintiff’s 2008 grievance against Dr. Abdellatif (docket # 64-3, ID# 562) does
not suffice. See Sullivan v. Kasajaru, 316 F. App’x at 470. The court finds that defendants Holmes
and PHS have carried their burden on the affirmative defense.
For the foregoing reasons, defendants’ motions for summary judgment (docket #s 63,
64) will be granted and judgment will be entered in defendants’ favor on all plaintiff’s claims.
Dated: December 21, 2011
/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE
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