Pann #254048 v. Corizon Health Services et al

Filing 141

OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION, except as noted 133 ; Defendants motions for Summary Judgment 92 , 95 are GRANTED; Plaintiff's motion 140 to include Defendant's application for Plaintiff to receive a Medicaid Card is GRANTED to the extent that the record in this case will include Dkt [140-1]; Plaintiff's claims against the unidentified John Doe defendants are DISMISSED without prejudice for failure to timely effect service and this action is terminated; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT PANN,
Plaintiff,
Case No. 1:14-cv-1074
v.
HON. JANET T. NEFF
CORIZON HEALTH 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 Eighth Amendment claims concerning medical care Plaintiff received while
incarcerated (“deliberate indifference” to “serious medical needs”).
separate motions for summary judgment (Dkts 92, 95).

Defendants filed two

The matter was referred to the

Magistrate Judge, who on January 13, 2017 issued a Report and Recommendation (R&R, Dkt
133), recommending that both summary judgment motions be granted. The matter is presently
before the Court on Plaintiff’s objections to the Report and Recommendation (Pl. Obj., Dkt 135).
The Corizon Health Services Defendants have filed a Response (Dkt 138), and Plaintiff has filed
a Reply (Dkt 139).1 Plaintiff has now also filed a Motion to Include Defendant’s Application for
Plaintiff to Receive a Medicaid Card (Dkt 140). 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 grants Plaintiff’s

1

Plaintiff failed to seek leave to file a reply as required, but the Court has nevertheless taken Plaintiff’s additional
argument into consideration.

motion to supplement the record, denies Plaintiff’s objections to the Report and
Recommendation, and issues this Opinion and Order.
I. Plaintiff’s Objections
Plaintiff presents the Court with a lengthy recitation of intermixed events, purported fact,
and argument, which fails to provide the Court with his challenges to specific portions of the
Report and Recommendation, as required, for de novo review. Plaintiff identifies ten main
objection topics.

To the best of the Court’s understanding, Plaintiff’s objections can be

appropriately categorized into four categories. The Court considers each in turn.
A. Factual Record Concerning Hand Surgery Medication
Plaintiff asserts that the Magistrate Judge erred in “finding that Plaintiff received his
medication on June 4, 2012” following Plaintiff’s hand surgery (Pl. Obj., Dkt 135 at
PageID.1466). In addressing Plaintiff’s claims against Defendant Silvernail in Count 1, the
Magistrate Judge noted that in response to Defendant Silvernail’s affidavit, Plaintiff provided
treatment notes indicating that “Plaintiff received pain medication on June 4, 2012” (R&R, Dkt
133 at PageID.1444 citing Dkt 121-2 at PageID.1191). However, as Plaintiff points out, he
actually received his Ultram medicine on June 5, 2012; he received the order for medicine on the
afternoon of June 4, 2012, but the medicine was not received until the following morning. To
the extent the Magistrate Judge’s use of the word “received” is a misstatement, the Court
clarifies that Plaintiff “received” his Ultram medicine on June 5, 2012.
In any event, this distinction demonstrates no error in the Magistrate’s Judge’s ultimate
conclusion with regard to Plaintiff’s medical care. As the Corizon Defendants state in response
to this objection, Plaintiff fails to note that he was on Tegretol, Tylenol, and Motrin on June 4,
2012 (Dkt 138 at PageID.1598, citing PageID.718). The Magistrate Judge properly determined

2

that Plaintiff could not maintain a claim of deliberate indifference based on the allegations in
Count 1, with respect to Defendant Silvernail and the five-dollar co-pay. Further, Plaintiff could
not maintain a claim against Defendant Health Unit Manager McKenna based on vicarious
liability (Dkt 133 at PageID.1446). As discussed subsequently, Plaintiff provides no facts or
argument showing that any misstatement that he “received” his pain medication on June 4, 2012
undermines these conclusions.
B. Summary Judgment in Favor of Defendant Silvernail
Plaintiff argues that the Magistrate Judge erred “in granting RN Silvernail summary
judgment” (Pl. Obj., Dkt 4 at PageID.1468). Plaintiff states that his version of events concerning
his Ultram medication directly contradicts that of Defendant Silvernail, which requires a
credibility determination that is improper on summary judgment.
Plaintiff’s objection is without merit. The Magistrate Judge properly considered the
record evidence and determined that the evidence reveals nothing more than a disagreement
between Plaintiff and Defendant Silvernail regarding how best to treat his medical symptoms
(Dkt 133 PageID.1445). Such is insufficient to establish a claim of deliberate indifference to
serious medical needs under the Eighth Amendment (id.). Plaintiff has failed to show that
summary judgment as to Defendant Silvernail is improper based on “credibility” issues.
Plaintiff’s general recounting of purported events and argument concerning Defendant
Silvernail does not constitute proper objection to the Report and Recommendation. A general
objection to a Magistrate Judge’s report, one that fails to specify the issues of contention, does
not satisfy the objection requirement. Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995);
Howard v. Secretary of Health & Human Servs., 932 F.2d 505, 508-09 (6th Cir. 1991). See also
W.D. Mich. LCivR 72.3(b). “Objections must be clear enough to enable the district court to

3

discern those issues that are dispositive and contentious.” Miller, supra. Plaintiff’s objection,
while lengthy, does not reference the Magistrate Judge’s Report and Recommendation and does
not specifically identify any issues of contention, except to merely dispute the Magistrate Judge’s
report (Pl. Obj., Dkt 135 at PageID.1468-72).
C. Five Dollar Co-Pay for Plaintiff’s Medical Visit
Plaintiff states two objections regarding the five dollar co-pay from Plaintiff’s June 21,
2012 medical visit. First, Plaintiff argues that the Magistrate Judge erred “in ordering Plaintiff
has a state claim” on the five dollar co-pay claim (Pl. Obj., Dkt 135 at PageID.1472). In
addressing this issue, the Magistrate Judge stated that “Plaintiff has failed to assert or
demonstrate the absence of an adequate [post-deprivation state] remedy for any alleged
discrepancies in the billing of the required co-pay” (R&R, Dkt 133 at PageID.1446). Plaintiff
asserts that this statement is the Magistrate Judge ordering that Plaintiff has a state claim
regarding the five dollar co-pay (Pl. Obj., Dkt 135 at PageID.1472). This argument is without
merit.
The Magistrate Judge did not order that Plaintiff had a state claim.

Instead, the

Magistrate Judge merely stated that if Plaintiff “asserts that he was mistakenly charged the copay in question, Plaintiff is required to first plead and prove that there does not exist any
adequate post-deprivation remedy for such an alleged billing error” (R&R, Dkt 133 at
PageID.1445-46). The Magistrate Judge then stated that Plaintiff had not pled or proven that a
post-deprivation state remedy was unavailable for him to plead a claim based on the alleged
billing error (id. at PageID.1446). These statements by the Magistrate Judge merely indicate the
steps Plaintiff must take before the court can consider whether Plaintiff was mistakenly charged

4

the co-pay. The Magistrate Judge did not order that Plaintiff has a state claim. Plaintiff’s
objection is denied.
Secondly, Plaintiff argues that “this Court determined both grievances 1460 and 1806 …
were valid” (Pl. Obj., Dkt 135 at PageID.1472). Plaintiff appears to be referring to the Court’s
previous Opinion and Order concerning exhaustion (Op. & Or., Dkt 61 at PageID.574-75). In
that Opinion and Order, the Court concluded that “[i]t thus appears that Plaintiff exhausted his
administrative remedies with respect to the five dollar co-pay claim” (id.). Regardless of this
Court’s previous statement concerning exhaustion, the Magistrate Judge denied Plaintiff’s claim
on the merits.
To the extent that Plaintiff reiterates that the assessment of a five dollar co-pay is
unconstitutional (Pl. Obj., Dkt 135 at PageID.1472-73), the Magistrate Judge properly concluded
that it is constitutional for an institution to assess prisoners a co-pay when meeting with health
professionals. See Miracle v. Smith, 3:16-CV-P346, 2016 WL 5867825, at *4 (W.D. Ky., Oct 6,
2016). Plaintiff met with Defendant Silvernail on June 21, 2012, and Defendant Silvernail
assessed Plaintiff a five dollar co-pay. Plaintiff’s objection fails.
D. Denial of Medical Treatment Claims
1. Defendant Stieve’s Denial of Baclofen for Back Pain
Plaintiff argues that the Magistrate Judge “erred when granting Dr. Stieve summary
judgment” (Pl. Obj., Dkt 135 at PageID.1473).

The Magistrate Judge determined that

“Defendant Stieve, in the exercise of his medical and professional judgment, determined that
Plaintiff’s condition did not require or warrant the prescription of such medication,” i.e.,
Baclofen (R&R, Dkt 133 at PageID.1447). Plaintiff argues that this is not a matter of an inmate
disagreeing with his doctor. Plaintiff merely reargues this issue, and fails to specifically identify

5

those portions of the Report and Recommendation to which he objects. See Miller, 50 F.3d at
380; Howard, 932 F.2d at 508-09.
As the Magistrate Judge stated, to the extent that a plaintiff simply disagrees with the
treatment he received, or asserts that he received negligent care, the defendant is entitled to
summary judgment. See Williams v. Mehra, 186 F.3d 685, 691 (6th Cir. 1999) (citing Estelle v.
Gamble, 429 U.S. 97, 105–06 (1976) (“Medical malpractice does not become a constitutional
violation merely because the victim is a prisoner.”)).
The Magistrate Judge properly concluded that while Plaintiff’s disagreement may
constitute negligence or malpractice, such does not implicate the Eighth Amendment. Plaintiff
fails to show any error in the Magistrate Judge’s analysis or conclusion. Plaintiff’s objection is
denied.
2. Defendants Worel’s and Bien’s Denial of MRI for Back Pain
Plaintiff asserts that the Magistrate Judge’s “findings on the record are incorrect” (Pl.
Obj., Dkt 135 at PageID.1477). The Magistrate Judge determined that “the medical evidence
submitted by Defendants supports their opinion that Plaintiff’s condition did not warrant an MRI
examination” (R&R, Dkt 133 at PageID.1449). Specifically, Plaintiff objects to the Magistrate
Judge’s statement that “Plaintiff presents nothing other than his own lay opinion” (Pl. Obj., Dkt
135 at PageID.1477; R&R, Dkt 133 at PageID.1449). Plaintiff contends that the Magistrate
Judge “overlooked two Radiological Reports” (Pl. Obj., Dkt 135 at PageID.1478). Plaintiff
asserts that “[p]ersonal knowledge is enough to be considered factual” such that an MRI
examination should be ordered to diagnose his back pain (Pl. Obj., Dkt 135 at PageID.1477-78).
Plaintiff relies on FED. R. CIV. P. 56(c) to support his contention that his personal
knowledge is sufficient to overcome Defendants Worel’s and Bien’s medical opinions.

6

However, Plaintiff’s reliance is misplaced.

Plaintiff presumably relies on FED. R. CIV. P.

56(c)(4), which merely provides that “[a]n affidavit or declaration used to support or oppose a
motion must be made on personal knowledge, set out facts that would be admissible in evidence,
and show that the affiant or declarant is competent to testify on the matters stated.” Plaintiff has
not shown that his purported “personal knowledge” meets these standards. The Magistrate Judge
considered the appropriate record evidence under the applicable legal standards, and determined
that the medical opinions that Plaintiff’s condition did not warrant an MRI were supported by the
medical evidence. Plaintiff’s objection is denied.
3. Defendants Worel’s and Bien’s Denial of Cotton Blanket
Plaintiff objects that the Magistrate Judge erred in assuming that a cotton blanket was an
“accommodation” as opposed to medically necessary (Pl. Obj., Dkt 135 at PageID.1480). The
Magistrate Judge observed that “[a] review of the medical evidence fails to reveal that Plaintiff
suffers from a wool allergy or other condition making denial of a cotton blanket cruel and
unusual punishment,” although Plaintiff had been afforded a cotton blanket accommodation
(R&R, Dkt 133 at PageID.1450).

The Magistrate Judge concluded that Plaintiff’s mere

disagreement with treatment decisions provided no basis for an Eighth Amendment claim.
Plaintiff disagrees with the Magistrate Judge’s characterization of the record, and states
discovery and a review of his files would have shown the cotton blanket was medically
necessary. He further states that after a thorough review of his medical file, his provider recently
reinstated his cotton blanket as medically necessary. Plaintiff has shown no error based on the
record before the Magistrate Judge. Moreover, the issue now appears to be moot.
Nonetheless, “Plaintiff feels costs should be ordered due to this issue being part of the
original lawsuit” (id. at PageID.1481). The Court finds no basis for an award of costs. The mere

7

fact that Plaintiff has now received a cotton blanket does not establish that Plaintiff was the
prevailing party with respect to his Eighth Amendment claim asserted in this lawsuit, and the
Magistrate Judge concluded to the contrary.
4. Defendants Worel’s and Bien’s Denial of Bottom Bunk and Ground Floor Housing
Plaintiff argues that the Magistrate Judge erred in granting summary judgment to
Defendants regarding a “Bottom Bunk and Ground Floor Housing” (Pl. Obj., Dkt 135 at
PageID.1481). As with the cotton blanket objection above, Plaintiff states that the bottom bunk
issue has since been resolved and that Plaintiff is currently housed on the ground floor (Pl. Obj.,
Dkt 135 at PageID.1481). These issues appear to be, to a large extent, moot. Regardless,
Plaintiff presents no valid objection to the analysis and conclusion of the Magistrate Judge, i.e.,
that Plaintiff’s mere disagreement with treatment decisions does not implicate the Eighth
Amendment (R&R, Dkt 133 at PageID.1452).
5. Defendants Worel’s and Borgerding’s Denial of Special Footwear
Plaintiff argues that the Magistrate Judge erred “when finding Plaintiff’s foot deformity is
not a substantial injury requiring special footwear” (Pl. Obj., Dkt 135 at PageID.1482). The
Magistrate Judge determined that “[a] review of the medical evidence fails to reveal that Plaintiff
suffers from an impairment such that denying him athletic shoes constitutes cruel and unusual
punishment” (R&R, Dkt 133 at PageID.1454).
Again, Plaintiff contends that “personal knowledge” that “[t]he podiatrist recommended
New Balance series 800 or 900 and a heal lift for the right shoe” is sufficient to overcome
Defendants Worel’s and Borgending’s medical opinions (Pl. Obj., Dkt 135 at PageID.1482).
Plaintiff again relies on FED. R. CIV. P. 56(c)(4) to support his contention. Plaintiff’s argument
fails for the same reasons stated above with regard to other objections premised on Rule 56(c).

8

Plaintiff otherwise merely reargues his claim and presents no valid objection to the analysis and
conclusion of the Magistrate Judge.
6. Defendants Borgerding’s, Stieve’s, and Worel’s Denial of Elbow Surgery and Baclofen
Plaintiff argues that the Magistrate Judge erred in granting summary judgment to
Defendants Dr. Borgerding, Dr. Stieve, and Dr. Worel regarding Plaintiff’s left elbow pain (Pl.
Obj., Dkt 135 at PageID.1483).

Plaintiff again merely reargues his claims and fails to

specifically identify the portions of the Magistrate Judge’s Report and Recommendation to
which his objection is made. Plaintiff’s general objection fails for the same reasons stated above.
See Miller, 50 F.3d at 380; Howard, 932 F.2d at 508-09.
II. Motion
On March 15, 2017, Plaintiff filed a Motion to Include Defendant’s Application for
Plaintiff to Receive a Medicaid Card (Dkt 140). Plaintiff requests that the record include a
Michigan Department of Corrections Prisoner Receipt checklist showing that he received a
Medicaid card (Dkt 140-1). Defendants have not filed a response to the motion. The Court will
grant the motion, but concludes that this fact has no bearing on the issues before the Court with
respect to the Report and Recommendation of the Magistrate Judge.
III. Conclusion
Plaintiff’s objections to the Magistrate Judge’s Report and Recommendation are without
merit. Plaintiff’s request for costs is denied.
Accordingly, this Court adopts the Magistrate Judge’s Report and Recommendation as
the Opinion of this Court, except as noted herein. A Judgment will be entered consistent with
this Opinion and Order. See FED. R. CIV. P. 58. Because this action was filed in forma pauperis,
this Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal of this decision would not

9

be taken in good faith. See McGore v. Wrigglesworth, 114 F.3d 601, 610 (6th Cir. 1997),
overruled on other grounds by Jones v. Bock, 549 U.S. 199, 206, 211-12 (2007).
Therefore:
IT IS HEREBY ORDERED that the Objections (Dkt 135) are DENIED and the Report
and Recommendation of the Magistrate Judge (Dkt 133) is APPROVED and ADOPTED as the
Opinion of the Court, except as noted herein.
IT IS FURTHER ORDERED that Defendants’ Motions for Summary Judgment (Dkts
92, 95) are GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Include Defendant’s
Application for Plaintiff to Receive a Medicaid Card (Dkt 140) is GRANTED to the extent that
the record in this case will include Dkt 140-1.
IT IS FURTHER ORDERED that Plaintiff’s claims against the unidentified John Doe
defendants are DISMISSED without prejudice for failure to timely effect service and this action
is terminated.
IT IS FURTHER ORDERED that this Court certifies pursuant to 28 U.S.C.
§1915(a)(3) that an appeal of this decision would not be taken in good faith.

Dated: March 27, 2017

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

10