Maxwell #240605 v. Correctional Medical Services, Inc. et al

Filing 38

OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 23 , Plaintiff's motion for leave to file amended complaint 35 is DENIED as to claims against Defendant Correctional Medical Services; Motion for Summary Judgment 11 is GRANTED IN PART and DENIED IN PART; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

BOBBIE A. MAXWELL, JR.,
Plaintiff,

Case No. 1:10-cv-404

v.

HON. JANET T. NEFF

CORRECTIONAL MEDICAL
SERVICES et al.,
Defendants.
_______________________________/

OPINION AND ORDER
This is a prisoner civil rights action filed pursuant to 42 U.S.C. § 1983 involving Plaintiff’s
claim that Defendants violated his constitutional right to be free from cruel and unusual punishment.
The matter is currently before the Court on Defendants, Correctional Medical Services, Inc., Keith
Ivens, M.D., and Bency Mathai, M.D.’s Motion to Dismiss (Dkt 11). The matter was referred to the
Magistrate Judge, who issued a Report and Recommendation (R & R, Dkt 23), recommending that
Defendants’ motion be granted in part and denied in part. The matter is presently before the Court
on Objections to the Report and Recommendation filed by Plaintiff (Pl. Obj., Dkt 27) and Defendant
Keith Ivens, M.D. (Def. Obj., Dkt 31), as well as the Response to Plaintiff’s Objections filed by
Defendants Correctional Medical Services, Inc. (CMS), Keith Ivens, M.D., and Bency Mathai, M.D.
(Def. Resp., Dkt 32). In accordance with 28 U.S.C. § 636(b)(1) and FED. R. CIV. P. 72(b)(3), the
Court has performed de novo consideration of those portions of the Report and Recommendation
to which objections have been made. The Court denies the Objections and issues this Opinion and
Order.

A. Defendant Mathai
Plaintiff objects to the Magistrate Judge’s finding that Plaintiff failed to exhaust
administrative remedies as to his complaint against Defendant Mathai. Plaintiff asserts that the
Magistrate Judge erred in finding that Plaintiff’s only claim against Dr. Mathai was that the doctor
denied Plaintiff an MRI examination on March 11, 2008. Plaintiff points to Paragraph 42 of the
Complaint in support of his assertion that Dr. Mathai “refus[ed] to support surgery for Plaintiff by
refusing the MRI and stating criteria not met” and “did not act to ‘optimize pain management’” (Dkt
27 at 4) (citing Pl. Compl., Dkt 1 at 14).1 Contrary to Plaintiff’s representation, however, the focus
of paragraph 42 of his Complaint is that “the rejection of a diagnostic MRI by Defendant Mathai
shows deliberate indifference to Plaintiff’s constant suffering” (id.; emphasis added). Further, Dr.
Mathai referred Plaintiff to the pain management clinic (PMC), and “[f]ollowing this
recommendation from Dr. Mathai, the PMC did not act to ‘optimize pain management’” (Dkt 1 at
14) (emphasis added). The Magistrate Judge properly found that Plaintiff’s complaint only asserted
a claim against Dr. Mathai for denial of an MRI examination.
Plaintiff next points to several paragraphs of Grievance ACF-2008-12-1151-12D1 and claims
that “[i]t is fair to conclude . . . that the complaints that are grieved are against both Dr. Ivens and
Dr. Mathai for both the refusal of surgery and the denial of pain medication” (Dkt 27 at 4).

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Plaintiff also asserts in his objection that “Dr. Mathai was also involved with [] the denial
of hip replacement surgery” and “not just the denial of a diagnostic MRI” (Dkt 27 at 2). Plaintiff
points to no allegations in the Complaint to support this assertion, however. The Court, when
evaluating a motion to dismiss pursuant to FED. R. CIV. P. 12(b)(6), “may not consider matters
beyond the complaint.” Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 613 (6th Cir. 2009). As such,
this new claim by Plaintiff is not properly before the Court. Even if, assuming arguendo, the claim
was properly before the Court and sufficient to state a claim of denial of surgery, Plaintiff has not
exhausted his administrative remedies as to such a claim. Nowhere in any of the grievances filed
by Plaintiff did he grieve Dr. Mathai’s involvement in the denial of hip replacement surgery.
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However, as the Magistrate Judge properly noted, Dr. Mathai is only mentioned once in the
grievance, in a paragraph alleging that CMS staff “are allowing [Plaintiff] to suffer . . . pain
needlessly when relief is available” (Dkt 23 at 10; see Dkt 11, Att. 2 at 9). As such, the Magistrate
Judge properly concluded that the grievance “cannot reasonably be said to have put the recipients
on notice that Plaintiff was challenging a months old decision by Dr. Mathai to reject a
recommendation that Plaintiff undergo an MRI examination” (Dkt 23 at 10). As a result, the
Magistrate Judge’s finding that Plaintiff had failed to exhaust administrative remedies as to the claim
against Defendant Mathai was proper.
B. Defendant Ivens
The Magistrate Judge found that Plaintiff had failed to exhaust administrative remedies with
respect to his claim based on Defendant Ivens’ November 14, 2007 denial of hip replacement
surgery, but that Plaintiff had properly exhausted administrative remedies as to Defendant Ivens’
October 22, 2008 denial of surgery. Plaintiff objects to the Magistrate Judge’s finding regarding the
November 14, 2007 denial, and Defendant Ivens objects to the Magistrate Judge’s finding as to the
October 22, 2008 denial.
i. November 14, 2007 Denial
Plaintiff asserts that he properly grieved the November 14, 2007 denial of surgery in
paragraph 6 of Grievance ACF-2008-12-1151-12D1. That paragraph alleges that “C.M.S. Staff
demonstrated ‘Deliberate Indifference’ to My medical needs going back to November, 2007, when
Dr. Ivens refused to authorize my Hip Replacement Operation” (Dkt 11, Att. 2 at 9). The Magistrate
Judge found that this reference to the November 14, 2007 was not sufficient to put the recipients on
notice that Plaintiff was grieving the November 14, 2007 denial because “the clear focus of the

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grievance” was the October 22, 2008 denial and because “the November 2007 incident was more
than one year distant” (Dkt 23 at 9-10).
Plaintiff points to no error in the Magistrate Judge’s analysis, but asserts that “[o]ne fact that
may have mislead [sic] the judge is that it is not clear from that grievance or from the complaint that
Plaintiff did not know during the year that passed from November 2, 2007, to December of 2008,
that Dr. Ivens had denied Dr. Ikram’s recommendation for surgery in November of 2007” (Dkt 27
at 3). Plaintiff also argues that “[t]he fact that Defendant Ivens denied the hip replacement surgery
twice is an essential fact that needs to be in evidence” (Dkt 27 at 2).
The Magistrate Judge properly noted that the clear focus of the grievance at issue was the
October 22, 2008 denial of surgery (see Dkt 11, Att. 2 at 9, ¶ 1). Further, plaintiff’s new factual
assertion regarding his knowledge of the denial, and his insistence that the November 2007 denial
is an essential fact, do not raise challenges to the Magistrate Judge’s analysis or conclusion. These
assertions do not invalidate the Magistrate Judge’s proper determination that Plaintiff failed to
exhaust administrative remedies as to the November 2007 decision. Plaintiff’s objection is,
therefore, denied.
ii. October 22, 2008 Denial
Defendant Ivens asserts that the Magistrate Judge erred in finding that Plaintiff had properly
exhausted administrative remedies related to the October 22, 2008 denial of hip replacement surgery
because “Plaintiff’s Grievance . . . failed to name Defendant, Dr. Ivens, as to any event of October
22, 2008” (Dkt 31 at 4). Defendant asserts that the Magistrate Judge’s finding “directly violates the
plain language of the controlling MDOC Policy Directive, which requires a Grievant to name ‘all

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those involved in the issue being grieved,’” (Dkt 31 at 5) (citing MDOC Policy Directive
03.02.130), and “violates the purpose of the grievance procedure itself” (id. at 6).
Defendant’s objection is without merit.

The Magistrate Judge properly found that

“Plaintiff’s grievance statement . . . is sufficient to have put prison officials on notice that Plaintiff
was grieving Defendant Ivens’ October 22, 2008 decision …” (Dkt 23 at 9). A grievance that fails
to name specific individuals may still exhaust a claim if it “gave prison officials fair notice of the
alleged mistreatment or misconduct that forms the basis of the constitutional or statutory claim made
against a defendant in a prisoner’s complaint.” Hall v. Raja, No. 09-10933, 2010 WL 3070145, at
*5 (E.D. Mich. Apr. 26, 2010) (holding that prisoner had exhausted his administrative remedies
despite the fact that he did not specifically name the medical staff whose decisions he grieved); see
Hudson v. DeForest, No. 09-11245, 2010 WL 1141606, at *3 (E.D. Mich. Mar. 1, 2010) (holding
that “[t]he fact that Plaintiff did not identify [Defendant] by name is not fatal to the claim, despite
the language of the policy directive”).
Defendant Ivens further asserts that “Plaintiff did not attempt to resolve his issue with Dr.
Ivens before filing his written grievance, as required by MDOC P.D. 03.02.130” (Dkt 31 at 5).
Because MDOC accepted Plaintiff’s grievance and reviewed it on the merits, however, Plaintiff’s
failure to attempt to resolve the issue cannot now be used to default Plaintiff’s claim. See Contor
v. Caruso, No. 1:07-cv-303, 2008 WL 878665, at *8 (W.D. Mich. Mar. 28, 2008) (“Because prison
officials did not actually rely upon the procedural rule to bar review of the grievance, they cannot
invoke the default against Plaintiff.”); Baker v. Vanderark, No. 1:07-cv-004, 2007 WL 3244075, at
*7 (W.D. Mich. Nov. 1, 2007) (holding that “[i]nterpreting . . . the proper exhaustion doctrine to

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require MDOC to raise the procedural problems during the grievance process is consistent with
MDOC policy …”).
Because the Magistrate Judge properly found that Plaintiff had exhausted his administrative
remedies as to the October 22, 2008 denial of hip surgery, Defendant’s objections to the Magistrate
Judge’s Report and Recommendation are denied.
C. Defendant Correctional Medical Services, Inc.
In Plaintiff’s Objection to the Report and Recommendation, Plaintiff requests permission to
amend the complaint against CMS (Dkt 27 at 4). Plaintiff states that he “agree[s] that the allegations
against Correctional Medical Services are not specific enough regarding the unconstitutional
policies, practices, and procedures; how the constitutional policies, practices, and procedures were
violated; and how the following or the violation of the policies, practices, and procedures violated
Plaintiff’s constitutional rights” (Dkt 27 at 2). Plaintiff indicates that he “will draft an Amended
Complaint, and in a separate filing, Plaintiff will request leave to file the Amended Complaint” (id.).
On March 16, 2011, Plaintiff filed a “Motion for Leave to File Amended Complaint” (Dkt 35).
Defendants CMS, Keith Ivens, M.D. and Bency Mathai, M.D. have filed a Response in opposition
(Dkt 37).
The Magistrate Judge recommended that Plaintiff’s claims against CMS be dismissed for
failure to state a claim on which relief may be granted (Dkt 23 at 5). Specifically, the Magistrate
Judge concluded that Plaintiff failed to allege in his complaint that his constitutional rights were
violated by (or because of) any policy, practice, or custom of CMS (id.). Plaintiff now moves to
amend his complaint to “specifically allege the policies, practices[, and] customs of each of those
defendants” (Dkt 35 ¶ 1).

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Plaintiff is not eligible to amend his complaint as a matter of course, thus he can amend his
complaint only by leave of the Court. A district court should freely grant leave to amend a
complaint when justice so requires. FED. R. CIV. P. 15(a); Parry v. Mohawk Motors of Mich., Inc.,
236 F.3d 299, 306 (6th Cir. 2000). “Nevertheless, the party requesting leave to amend must ‘act
with due diligence if it wants to take advantage of the Rule’s liberality.’” Parry, 236 F.3d at 306
(quoting United States v. Midwest Suspension & Brake, 49 F.3d 1197, 1202 (6th Cir. 1995)). A
motion to amend is futile when additional factual allegations do not further the plaintiff’s legal
claim. See Kottmyer v. Maas, 436 F.3d 684, 692 (6th Cir. 2006).
The factors relevant when considering a motion to amend include: (1) undue delay in filing,
(2) lack of notice to the opposing party, (3) bad faith by the moving party, (4) repeated failure to
cure deficiencies by previous amendments, (5) undue prejudice to the opposing party, and (6) futility
of amendment. See Wade v. Knoxville Utilities Bd., 259 F.3d 452, 458 (6th Cir. 2001). Notice and
substantial prejudice to the opposing party are the “critical factors” in deciding whether an
amendment should be granted. Id. at 458-59. Moreover, when a party seeks to amend its complaint
at a late stage of the litigation, “there is an increased burden to show justification for failing to move
earlier.” Id. at 459.
Plaintiff, who is represented by counsel, could have attempted long ago to address the legal
deficiencies in his complaint. Instead, Plaintiff waited to attempt to remedy such until after the
Magistrate Judge recommended dismissal of the claims in question. Even were the Court to
overlook the untimeliness of Plaintiff’s motion, and the prejudice resulting therefrom, Plaintiff’s
attempt to cure the legal deficiencies in his complaint is futile.

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Plaintiff’s proposed amended complaint fails to state a claim against CMS on which relief
may be granted. As the Magistrate Judge observed, to establish liability against CMS, Plaintiff must
allege that he suffered a violation of his federal rights “because of” a CMS policy, practice, or
custom (Dkt 23 at 4). To establish the existence of such, Plaintiff must allege: (1) the existence of
a “clear and persistent pattern” of illegal activity; (2) that CMS had notice or constructive notice of
such; (3) that CMS tacitly approved of the illegal activity, such that “their deliberate indifference
in their failure to act can be said to amount to an official policy of inaction” and (4) that the policy,
practice, or custom in question was the “moving force” or “direct causal link” in the constitutional
deprivation (id.). The allegations in Plaintiff’ proposed amended complaint fail to satisfy this
standard, i.e., fail to “raise a right for relief above the speculative level” (id. at 3). Plaintiff’s motion
to amend his complaint is therefore denied.
Accordingly, this Court adopts the Magistrate Judge’s Report and Recommendation as the
Opinion of this Court.
Therefore:
IT IS HEREBY ORDERED that Plaintiff’s Objections (Dkt 27) and Defendant Ivens’
Objections (Dkt 31) are DENIED and the Report and Recommendation (Dkt 23) is APPROVED and
ADOPTED as the Opinion of the Court.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to File Amended
Complaint” (Dkt 35) is DENIED as to claims against Defendant Correctional Medical Services, Inc.
IT IS FURTHER ORDERED that the Motion for Summary Judgment (Dkt 11) is
GRANTED IN PART and DENIED IN PART; Defendants’ Motion is granted as to Plaintiff’s
claims against Defendant Correctional Medical Services, Inc.; granted without prejudice as to

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Plaintiff’s claims against Defendant Mathai; granted without prejudice as to Plaintiff’s claim
based on Defendant Ivens’ November 14, 2007 denial of a request for hip replacement surgery; and
denied as to Plaintiff’s claim based on Defendant Ivens’ October 22, 2008 denial of a request for
hip replacement surgery.

Dated: April 13, 2011

/s/ Janet T. Neff
JANET T. NEFF
United States District Judge

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