Hardy #252393 v. Ingham County Jail et al

Filing 63

OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 54 ; Plaintiff's motion for summary judgment 38 is DENIED; Defendants' motion for summary judgment 26 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

GREGORY HARDY,
Plaintiff,

Case No. 1:13-cv-1133

v

HON. JANET T. NEFF

INGHAM COUNTY JAIL, et al.,
Defendants.
_______________________________/

OPINION AND ORDER
Plaintiff initiated this prisoner civil rights action on October 15, 2013 (Dkt 1). On July 10,
2014, the defendants remaining in this case—Defendants Agueros, Hagerman, Johnson,
Montimayor, Moore, and Shelly—moved for summary judgment (Dkt 26). On July 18, 2014,
Plaintiff moved for summary judgment (Dkt 38). The matter was referred to the Magistrate Judge,
who issued a Report and Recommendation (R&R, Dkt 54), recommending that the Court deny
Plaintiff’s motion and grant in part and deny in part Defendants’ motion. The matter is presently
before the Court on Defendants’ objections to the Report and Recommendation (Dkt 55). 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. For the following reasons, the Court denies the objections and issues this Opinion and
Order.

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In the Report and Recommendation, the Magistrate Judge analyzed Plaintiff’s medication,
failure to protect, retaliation, housing, exercise, and Fourteenth Amendment claims (R&R, Dkt 54
at 5-20). Defendants’ objections challenge only the Magistrate Judge’s analysis of Plaintiff’s
medication and exercise claims.
Plaintiff’s Medication Claim. Defendants make three arguments challenging the Magistrate
Judge’s analysis of Plaintiff’s medication claim. First, Defendants argue that the Magistrate Judge
erroneously emphasized that “Defendant Johnson ... failed to provide Plaintiff with his prescribed
medications,” when it is “immaterial who, among many possible jail staff personnel, delivered
prescribed medication” (Objs., Dkt 55 at 4, quoting R&R, Dkt 54 at 2). Defendants’ argument does
not demonstrate any factual or legal error by the Magistrate Judge. The Court does not construe this
sentence in the Magistrate Judge’s background summary of Plaintiff’s allegations as unnecessarily
highlighting the actor over the alleged deprivation.
Second, Defendants argue that “merely because a doctor has prescribed some medication or
treatment does not mean that variations in the precise time or administration constitute cruel and
unusual punishment” (Objs., Dkt 55 at 4). And third, Defendants similarly opine that the Magistrate
Judge “distorted” the controlling law (id. at 4-12). Defendants assert that Plaintiff “came forward
with no evidence at all that his medications were not administered within the broad time parameters
which the [Physicians’ Desk Reference] or the manufacturer have established as appropriate, nor has
Plaintiff adduced any qualified health provider opinion evidence that minor variations in time of
administration were detrimental to his health in any way, shape or form” (id. at 7). According to
Defendants, the Magistrate Judge’s “assumption that Plaintiff’s medications had to be administered
on some unspecified rigid ‘dot’ of time in order for Defendants to defeat the objective component
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of an Eighth Amendment claim is without a factual basis” (id.). Defendants further assert that the
Magistrate Judge’s “false assumption” is not only legally incorrect but also factually incorrect, as
evidenced by multiple exhibits that Defendants assert the Magistrate Judge “ignored” (id. at 9-11).
Defendants’ second and third arguments are simply misplaced. The Magistrate Judge
addressed Plaintiff’s medication claim in two parts: “Denial of Medications” (I.A) and “Providing
Medication at the Incorrect Times” (I-B). In section I-B, “Providing Medication at the Incorrect
Times,” which is the topic of Defendants’ second and third arguments, the Magistrate Judge
indicated that “[w]here a prisoner alleges that a delay in medical treatment violates the Eighth
Amendment, he ‘must place verifying medical evidence in the record to establish the detrimental
effect of the delay in medical treatment’” (R&R, Dkt 54 at 11, quoting Napier v. Madison Cnty., Ky.,
238 F.3d 739, 742 (6th Cir. 2001)). The Magistrate Judge determined that “Plaintiff has failed to
present any such evidence” (id.). Therefore, with respect to Plaintiff’s claim that Defendant Moore
failed to provide his medications at the allotted time, the Magistrate Judge recommended that
Plaintiff’s motion for summary judgment be denied and Defendant Moore’s motion for summary
judgment be granted (id.).
Plaintiff’s Exercise Claim.

Defendants also make three arguments challenging the

Magistrate Judge’s analysis of Plaintiff’s exercise claim. First, Defendants argue that the Magistrate
Judge “ignore[d] the rather important point that plaintiff has not identified any single date on which
exercise was denied to him” (Objs., Dkt 55 at 13). Defendants’ argument lacks merit. The
Magistrate Judge did not ignore the character of Plaintiff’s pleading. Rather, the Magistrate Judge
observed that “the precise contours of Plaintiff’s [exercise] claim are vague and difficult to discern”
(R&R, Dkt 54 at 16). The Magistrate Judge noted, however, that Defendants opted not to move the
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Court to compel Plaintiff to submit a more definite statement of this claim, and moreover, that
Defendants claimed they were entitled to summary judgment because “the 8th Amendment itself
imposes no such requirement” (id., quoting Defs.’ Br., Dkt 27 at 24).
Second, Defendants argue that the Magistrate Judge “fails to recognize that Plaintiff’s claims
of denial of exercise, such as they are, are predicated on unspecified ‘state and federal laws’ ... and
utterly ignores the authority cited by defendants in support of summary judgment” (Objs, Dkt 55 at
13-14). This argument also lacks merit. As noted, the Magistrate Judge did not fail to recognize the
character of Plaintiff’s pleading. Neither did the Magistrate Judge ignore any relevant authority. The
Magistrate Judge thoroughly and carefully considered application of the Eighth Amendment to
Plaintiff’s claim under relevant Supreme Court and Sixth Circuit precedent (R&R, Dkt 54 at 16-18).1
Third, Defendants argue that Plaintiff has not “claimed that he never got exercise time out
of his cell, or that he was prohibited from leaving his cell to exercise, only that, whatever out of cell
exercise time he enjoyed was not ‘according to state and federal laws’” (Objs, Dkt 55 at 15).
According to Defendants, Plaintiff “pleaded facts that are facially not cognizable under 42 USC
§ 1983” (id.). For the reasons stated in the Report and Recommendation, however, Defendants’
argument lacks merit.
In sum, Defendants’ arguments fail to demonstrate that a result other than the
recommendation by the Magistrate Judge is warranted. Accordingly:

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Nearly the whole of Defendants’ argument in support of dismissal of Plaintiff’s exercise
claim consisted of an excerpt from an unpublished decision issued by the Court of Appeals for the
Seventh Circuit (Defs.’ Br., Dkt 27 at 24-25, citing Winger v. Pierce, 521 F. App’x 569, 573-74 (7th
Cir. 2013)).
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IT IS HEREBY ORDERED that the Objections (Dkt 55) are DENIED, and the Report and
Recommendation (Dkt 54) is APPROVED and ADOPTED as the Opinion of the Court.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary Judgment (Dkt 38) is
DENIED.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment (Dkt 26)
is GRANTED IN PART and DENIED IN PART; specifically, Plaintiff’s claims are DISMISSED
save for the following two claims that are permitted to go forward: (1) from October 15, 2012
through October 7, 2013, Defendants Johnson, Moore, Agueros, Hagerman and Shelly failed to
provide Plaintiff with his properly prescribed medications; and (2) from October 15, 2012 through
October 7, 2013, Defendants Montimayor, Johnson, Agueros, Hagerman, Moore and Shelly
improperly deprived Plaintiff of out-of-cell exercise or recreational opportunities.

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

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Dated: September ___, 2015

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