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

Filing 97

OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 95 ; denying objections 96 , and granting motion for summary judgment 86 ; signed by Judge Janet T. Neff (Judge Janet T. Neff, rmw)

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, INC. et al.,
Defendants.
_______________________________/

OPINION AND ORDER
This is a prisoner civil rights action filed pursuant to 42 U.S.C. § 1983, alleging violations
of Plaintiff’s Eighth Amendment right against deliberate indifference to his serious medical needs
due to the denial of hip-replacement surgery and adequate pain medication. The case is before the
Court on a motion for summary judgment by Defendant Dr. Keith Ivens, the sole remaining
Defendant and claim: that on November 14, 2007, Defendant Ivens denied the recommendation that
Plaintiff undergo hip surgery. The matter was referred to the Magistrate Judge, who issued a Report
and Recommendation (R & R), recommending that this Court grant Defendant Ivens’ motion (Dkt
95). Plaintiff has filed objections to the Report and Recommendation (Dkt 96). 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.
Plaintiff sets forth ten objections to the Report and Recommendation, none of which provide
a valid basis for rejecting the analysis and conclusion of the Magistrate Judge. The Magistrate Judge

considered Plaintiff’s claim under the applicable legal standards and properly determined that
Defendant Ivens’ motion for summary judgment should be granted.
Plaintiff first objects that the law set forth by the Magistrate Judge concerning the standards
for deciding a motion for summary judgment is irrelevant and therefore confusing (Objs., Dkt 96,
¶¶ 1-2). The Court finds Plaintiff’s criticism unfounded, and in any event, inconsequential. The
Magistrate Judge properly set forth the general legal rules applicable to motions for summary
judgment. Additionally, Plaintiff fails to show how the alleged irrelevance or “confusion”
undermines the result reached by the Magistrate Judge. Plaintiff simply makes the bare conclusory
assertions that he has shown a jury could find in his favor and that Defendant Ivens was deliberately
indifferent to Plaintiff’s medical needs, i.e., he was subjectively aware of Plaintiff’s serious medical
condition and either knowingly or recklessly disregarded it.

Such conclusory statements

demonstrate no error in the Report and Recommendation and provide no basis for relief. Plaintiff’s
first two objections are without merit.
Plaintiff next objects to the Magistrate Judge’s factual statement that Defendant Ivens denied
the recommendation of the orthopedic surgeon because of “‘pre-existing gunshot wounds’” (Objs.
¶ 3). Plaintiff asserts that the gun-shot pellets were in the right thigh, not in his hips. Plaintiff
contends that it is a denial of his constitutional rights to deny medical treatment because of a preexisting condition, and, in addition, this pre-existing condition was clearly irrelevant. Plaintiff
further contends that such a denial shows that Defendant Ivens knew about Plaintiff’s medical
condition and was “deliberately, or at least almost deliberately, certainly at the least recklessly,
indifferent” to it (id.). Plaintiff provides no authority to support his legal contentions, which have

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no foundation in logical reasoning, and as above, are merely bare, conclusory statements. This
objection is denied.
Plaintiff next lists a chronology of excerpts from various medical records and statements in
his affidavits, including that he was in pain while still in prison as a result of the denial of surgery
and he disagrees with the statements in Dr. Ivens’ affidavit. Plaintiff asserts that the medical
evidence and his affidavit were ample to avoid summary judgment (Objs. 4-5). Plaintiff essentially
repeats the medical history cited in his response to the motion for summary judgment (Dkt 94). He
also repeats his contentions noted above based on the purportedly irrelevant pre-existing gunshot
wounds, which Plaintiff asserts was presumably the basis of Dr. Ivens’ denial of Plaintiff’s hip
surgery. Plaintiff asserts that Dr. Ivens could not have reviewed Plaintiff’s medical records, and he
denied Plaintiff needed surgery “for irrelevant and ridiculous reasoning” (Objs. ¶ 5). As above,
these contentions lack any basis in the record or any logical foundation, and are without substantive
merit.
Plaintiff next asserts, without reasoning or further explanation, that the Magistrate Judge did
not view the facts in a light most favorable to Plaintiff, as required (Objs. ¶ 6). Plaintiff states that
Dr. Ivens is not an orthopedic surgeon, and the simple fact that he overrode the opinion of a
specialist is itself evidence of deliberate indifference (Objs. ¶ 7). Further, Dr. Ivens knew about Dr.
Ikram’s recommendation for hip surgery, ignored Dr. Ikram’s warnings about continuing injections
and his finding that conservative treatment had failed. Plaintiff contends that Dr. Ivens knew that
the failure to follow Dr. Ikram’s recommendation would result in considerable pain and suffering
to Plaintiff, and intentionally disregarded the recommendation, which is subjective indifference.

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Plaintiff asserts that he presented medical evidence contradicting Dr. Ivens’ affidavit, and
the Magistrate Judge chose to ignore what Plaintiff presented (Objs. ¶ 8); Dr. Ivens’ decision cannot
be based on his medical judgment because he is not an orthopedic surgeon (id. ¶ 9); “[h]e” could not
have considered all the medical evidence because it substantially supports Plaintiff’s view, not Dr.
Ivens’; and a jury could very well agree with Plaintiff (id.).
Plaintiff’s various assertions and bare, conclusory legal contentions advance no legitimate
challenge to the Report and Recommendation. The Magistrate Judge considered Plaintiff’s claims
in light of the record, including Plaintiff’s medical record (R & R at 6-9), and the governing legal
principles (id. at 5-6, 9). The Magistrate Judge found that based on the evidence then available to
Dr. Ivens, his determination was not unreasonable and did not constitute deliberate indifference.
As the Magistrate Judge observed, Plaintiff’s mere disagreement with the treatment he received or
evidence of negligent care, or even medical malpractice, is insufficient to prevail on an Eighth
Amendment denial of medical treatment claim (id. at 6, 8-9).
Finally, Plaintiff’s objection to the “overall” Report and Recommendation (Objs. ¶ 10) is
improper. See W.D. Mich. LCivR 72.3(b) (written objections “shall specifically identify the
portions of the proposed findings, recommendations or report to which objections are made and the
basis for such objections”). Likewise, to the extent that Plaintiff’s objections merely reargue his
general claims, they are not proper objections to the Report and Recommendation. Plaintiff has
raised no objection that persuades this Court that a full review of his response brief, his affidavit,
and the record is warranted.
Plaintiff’s objections fail to demonstrate any factual or legal error in the Magistrate Judge’s
analysis or conclusion.

Accordingly, this Court adopts the Magistrate Judge’s Report and

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Recommendation as the Opinion of this Court. A Judgment will be entered consistent with this
Opinion and Order. See FED. R. CIV. P. 58.
Therefore:
IT IS HEREBY ORDERED that the Objections (Dkt 96) are DENIED and the Report and
Recommendation (Dkt 95) is APPROVED and ADOPTED as the Opinion of the Court.
IT IS FURTHER ORDERED that the Motion for Summary Judgment (Dkt 86) is
GRANTED.

Dated: September 30, 2014

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

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