Simmons #197744 v. Lafler et al
MEMORANDUM OPINION; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NIKO S. SIMMONS, # 197744,
PENNY ROGERS, et al.,
Case No. 1:14-cv-1242
Honorable Paul L. Maloney
This is a civil rights action brought pro se by a state prisoner under 42 U.S.C.
§1983. Plaintiff is an inmate at the Chippewa Correctional Facility (URF). (ECF No.
54). This lawsuit arises out of conditions of plaintiff’s confinement in 2011 and 2012
at the Kinross Correctional Facility. (KCF). The defendants are Nurse Practitioner
Penny Rogers and Corizon.1 Plaintiff alleges that on August 4, 2011, he experienced
an allergic reaction to Tegretol and that he received inadequate pain medication
following outpatient surgery on September 11, 2012, to remove a cyst on his back.
Plaintiff alleges that defendants were deliberately indifferent to his serious medical
needs in violation of his rights under the Eighth Amendment’s Cruel and Unusual
Punishments Clause. Plaintiff also alleges that Nurse Practitioner Rogers was grossly
negligent in violation of Michigan law when she diagnosed plaintiff as having strep
throat rather than Stevens-Johnson syndrome. Plaintiff seeks an award of damages.
“Although plaintiff [did] not expressly name Corizon as a defendant, he [did]
name PHS and CMS, and in the body of the complaint allege[d] that these
organizations have merged into Corizon.” (ECf No. 21, PageID.220).
The matter is before the Court on defendants’ motion for summary judgment.
(ECF No. 37). Plaintiff filed his response. (ECF No. 43, 45). For the reasons set forth
herein, plaintiff’s state-law claim will be dismissed pursuant to the statutory authority
provided in 28 U.S.C. § 1915(e)(2)(B)(ii) because he fails to state a claim upon which
relief can be granted. Defendants’ motion for summary judgment will be granted and
a judgment will be entered in defendants’ favor on all plaintiff’s federal claims.
A few matters need to be noted at the outset. Plaintiff concedes that he “has not
provided any evidentiary support for his claims[.]” (ECF No. 43, PageID.515). Plaintiff
noted in his complaint that his allegations were made on “information and belief.”
(ECF No. 1, PageID.33, 63, 87). “[S]tatements made on belief or on information and
belief, cannot be utilized on a summary-judgment motion” and here, the Court cannot
discern what statements plaintiff made on personal knowledge and under penalty of
perjury and those he made on mere information and belief. See Ondo v. City of
Cleveland, 795 F.3d 597, 605 (6th Cir. 2015). Thus, plaintiff’s complaint is not a
verified complaint that could be considered as his affidavit in opposition to defendants’
motion. See, e.g., Brown v. City of Grand Rapids, No. 1:13-cv-964, 2016 WL 4920144,
at *3 n.3 (W.D. Mich. June 13, 2016); Naumovski v. Federal Nat’l Mort. Ass’n, No. 1511466, 2016 WL 949220, at *2 (E.D. Mich. Mar. 14, 2016).
In any event, “verified” arguments and legal conclusions are not evidence. Legal
conclusions, whether asserted in an affidavit or verified complaint, do not suffice to
create a genuine issue of material fact for trial. See Medison Am. Inc. v. Preferred Med.
Sys., LLC, 357 F. App’x 656, 662 (6th Cir. 2009); Houston v. McDaniels, No. 1:12-cv299, 2014 WL 1493402, at *2 n. 2 (W.D. Mich. Apr.16, 2014). “Arguments in parties’
briefs are not evidence.” Duha v. Agrium, Inc., 448 F.3d 867, 879 (6th Cir. 2006).
Although plaintiff’s briefs contain references to Federal Rule of Civil
Procedure 56(d) (ECF No. 42, PageID.514; ECF No. 45, PageID.555), he did not file the
“affidavit or declaration” required by the Rule.
Accordingly, the Court, in its
discretion, denies plaintiff’s request to deny defendants’ motion for summary judgment
or defer consideration of the motion. See Scadden v. Werner, No. 16-1876, __ F. App’x
__, 2017 WL 384874, at *3 (6th Cir. Jan. 27, 2017) (“even when a party provides a
Rule 56(d) affidavit and a motion to extend discovery, the rule only provides that a
court ‘may’ extend the discovery deadline.”); Cacevic v. City of Hazel Park, 226 F.3d
483, 488 (6th Cir. 2000). The primary consideration is whether the party seeking an
extension was “diligent in pursuing discovery.” Scadden, 2017 WL 384874, at *3.
Plaintiff here was not diligent in pursuing discovery. (See ECF No. 48).
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); McKay v. Federspiel, 823 F.3d 862,
866 (6th Cir. 2016). 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.’ ” Rocheleau v. Elder Living Const., LLC, 814 F.3d 398, 400 (6th Cir.
2016) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). The
Court must consider all pleadings, depositions, affidavits, and admissions on file, and
draw all justifiable inferences in favor of the party opposing the motion.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); France v.
Lucas, 836 F.3d 612, 624 (6th Cir. 2016).
When the party without the burden of proof seeks summary judgment, that
party bears the initial burden of pointing out to the district court an absence of
evidence to support the nonmoving party’s case, but need not support its motion with
affidavits or other materials “negating” the opponent’s claim. See Morris v. Oldham
County Fiscal Court, 201 F.3d 784, 787 (6th Cir. 2000); see also Minadeo v. ICI Paints,
398 F.3d 751, 761 (6th Cir. 2005). 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. See Ellington v. City of E. Cleveland,
689 F.3d 549, 552 (6th Cir. 2012); see also Scadden v. Warner, No. 16-1876, __ F. App’x
__, 2017 WL 384874, at * 4 (6th Cir. Jan. 27, 2017). 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); see Newell Rubbermaid, Inc. v. Raymond Corp., 676 F.3d 521, 533 (6th Cir.
2012). “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 Brown v.
Battle Creek Police Dep’t, 844 F.3d 556, 565 (6th Cir. 2016).
The following facts are beyond genuine issue. Plaintiff is an inmate in the
custody of the Michigan Department of Corrections. He is currently an inmate at the
Chippewa Correctional Facility (URF).
Plaintiff was an inmate at the Kinross
Correctional Facility (KCF) at all times relevant to his complaint. Penny Rogers is a
licensed nurse practitioner and during the relevant time period in 2011 and 2012, she,
and other health care professionals provided plaintiff with medical treatment. (Rogers
Decl. ¶¶ 2-32, ECF No. 37-2, PageID.328-36).
The Pain Management Committee was established by the MDOC to address the
appropriate and consistent management of pain for MDOC inmates. Upon review of
the information regarding the patient’s condition and pain, including a review of the
patient’s medical record, the Pain Management Committee makes a recommendation
aimed at maintaining the patient’s level of function while addressing his pain
complaints. Pain control must be balanced with the need to function in life and to
minimize the risk of prescription drug abuse. Excessive medication, while it may
resolve a patient’s pain, will threaten the patient’s health and undermine the quality
of that patient’s life. (Rogers Decl. ¶ 8, PageID.330; Bomber Decl. ¶¶ 5-9, ECF No. 374, PageID.340-42).
On June 1, 2011, the Pain Management Committee noted plaintiff’s history of
substance abuse and his refusal of any pain medication in March 2011. The Pain
Management Committee recommended offering plaintiff Tylenol and the NSAID of his
choice up to the maximum dosage. In addition, the Pain Management Committee
prescribed Tegretol for four months, with a gradual increase to a dosage of 200 mg.
twice a day. (Rogers Decl. ¶ 10, PageID.331; ECF No. 39-1, PageID.386). Tegretol is
an anticonvulsant. In addition to treating seizures, Tegretol is also used to treat nerve
pain because it works by decreasing nerve impulses. Peer reviewed publications have
confirmed the analgesic properties of Tegetol and other anti-convulsant medications
for the management of chronic pain since the mid-1980s. There is no indication that
this course of treatment was recommended for plaintiff because of cost, but rather it
was a commonly used medication to treat pain that plaintiff had not been previously
prescribed. Further, Tegretol does not raise the same risks of addiction or abuse as
narcotic or opiate based medications. (Rogers Decl. ¶ 11, PageID.331).
On June 28, 2011, Nurse Practitioner Rogers saw plaintiff in connection with
the treatment recommended by the Pain Management Committee.
treatment in accordance with the Committee’s recommendation began on that date.
(Rogers Decl. ¶¶ 12, 32, PageID.331-32, 336).
On August 6, 2011, it was reported that plaintiff fell down in the bathroom of
his housing unit. He was feverish, had a red-dotted rash, and was in respiratory
distress. He was transported by ambulance to a local hospital. It was believed that
plaintiff had Stevens-Johnson syndrome as a reaction to Tegretol. There was nothing
in plaintiff’s earlier medical records indicating that he would experience an allergic
reaction. Stevens-Johnson is a rare and unpredictable syndrome, but usually appears
as a reaction to medication or an infection. Plaintiff’s prescriptions for Tegretol and
Augmentin were discontinued. Plaintiff was transferred to Duane Waters Hospital.
(Rogers Decl. ¶¶ 13-19, 32, PageID.332-33, 336; ECF No. 39-1, PageID.392-421). Later
that month, plaintiff returned to KCF. (Rogers Decl. ¶ 20, PageID.334).
On September 11, 2012, plaintiff underwent outpatient surgery to remove a cyst
on his back. (Rogers Decl. ¶ 28, PageID.335). Plaintiff received a prescription for
Tylenol # 3.
(ECF No. 39-1, PageID.458).
Tylenol # 3 is a combination of
acetaminophen and codeine, an opiate-based narcotic. (Bomber Decl. ¶ 13, ECF No.
37-4, PageID.343). Opiate based pain relievers have a common and serious side effect
of psychological and physical addiction. Further, in the prison setting, they pose a
higher risk of improper diversion for improper and illicit use. Even when the patient
does not intend to misuse the drug, he may become a target for violence or other
manipulation to obtain access to the patient’s drugs.
(Bomber Decl. ¶¶ 6-10,
PageID.340-43). Given plaintiff’s history of substance abuse and the other risks
mentioned above, a medical determination was made to treat plaintiff with NSAIDs
and other non-narcotic pain medications. (Rogers Decl. ¶ 29, PageID.335-36). This
was an appropriate medical determination. (Bomber Decl. ¶¶ 13-16, PageID.343-44).
Corizon does not have any policy prohibiting the prescription of opiate-based
medications to inmates. Nevertheless, and particularly with patients with a history
of substance abuse, the prescription of such medications should be avoided, unless
medically necessary in lieu of other non-opiate based pain medications. (Bomber Decl.
¶¶ 5-16, PageID.340-44).
Nurse Practitioner Brand ordered 400 mg Motrin for plaintiff to take as needed
for five days and 325 mg of Tylenol for plaintiff to take as needed for five days.
Plaintiff refused the pain medication provided, insisting that he be provided with
narcotic medication. (Rogers Decl. ¶¶ 29-30, PageID.335; ECF No. 39-1, PageID.46164). On September 24, 2012, Dr. Neri found that plaintiff’s surgical wound had
completely healed. (Rogers Decl. ¶ 31, PageID.336; ECF No. 39-1, PageID.465).
On August 6, 2014, plaintiff filed this lawsuit.
Nurse Practitioner Rogers
Eighth Amendment Claim
Plaintiff alleges that Nurse Practitioner Rogers violated his Eighth Amendment
rights under the Cruel and Unusual Punishments Clause. 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: 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 defendant.
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
Miller, 408 F.3d at 813 (citations and quotations omitted). 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 162, 169 (6th Cir. 2011); Westlake, 537 F.2d 860 n. 5; Reed v. Speck, 508 F. App’x
415, 419 (6th Cir. 2012) (“The subjective component is intended ‘to prevent the
constitutionalization of medical malpractice claims.’ ”) (quoting Dominguez v. Corr.
Med. Servs., 555 F.3d at 550)); see also Hollis v. Holmes, No. 1:14-cv-580, 2016 WL
1055750, at *4 (W.D. Mich. Mar. 17, 2016); accord Baker v. Stevenson, 605 F. App’x
514, 518 (6th Cir. 2015) (“[T]he Eighth Amendment does not impose a constitutional
obligation upon prison officials to enable a prisoner’s substance abuse or addiction
Plaintiff has not presented evidence sufficient to support the subjective
component of an Eighth Amendment claim for deliberate indifference to serious
medical needs against Nurse Practitioner Rogers. The record shows that defendant
treated plaintiff’s condition and displayed no deliberate indifference. The claims that
defendant “should have” provided him with “different” medical care are at best,
state-law malpractice claims. Plaintiff’s disagreement with defendant’s treatment falls
far short of supporting an Eighth Amendment claim. See e.g., Kosloski v. Dunlap, 347
F. App’x 177, 180 (6th Cir. 2009); Hix v. Tennessee Dep’t of Corr., 196 F. App’x 350, 357
(6th Cir. 2006).
State Law Claim
Although plaintiff attempted to plead around the requirements of Michigan’s
malpractice laws by labeling his claim as “gross negligence,” plaintiff’s claim that
Nurse Practitioner Rogers misdiagnosed his condition clearly sounds in medical
malpractice. Thus, plaintiff’s proposed claim is “subject to the prerequisites imposed
under Michigan law for the bringing of a malpractice claim, including that the
complaint be accompanied by an affidavit of merit signed by a health professional
attesting to defendant[’s] failure to meet the standard of care. MICH. COMP. LAWS
§ 600.2912d(1). Plaintiff has failed to provide such [an] affidavit . . ., a failure that
requires dismissal[.]” Hamer v. County of Kent, No. 1:13-cv-504, 2013 WL 8479414, at
*9 (W.D. Mich. Nov. 6, 2013); see also Miller v. Westcomb, No. 2:14-cv-45, 2016 WL
4136536, at *4 (W.D. Mich. Aug. 4, 2016). This claim will be dismissed for failure to
state a claim on which relief can be granted2 pursuant to the statutory authority
provided in 28 U.S.C. § 1915(e)(2)(B)(ii).
Plaintiff seeks to hold Corizon vicariously liable for the acts of its employee. A
private corporation cannot be held liable under section 1983 on the basis of respondeat
superior or vicarious liability. See Street v. Corr. Corp. of Am., 102 F.3d 810, 818 (6th
If Nurse Practitioner Rogers had not been so clearly entitled to dismissal of
plaintiff’s malpractice claim for failure to state a claim upon which relief can be
granted, the Court would have declined to exercise supplemental jurisdiction. See
28 U.S.C. § 1367(c)(3); see also Brown v. Cassens Transp. Co., 546 F.3d 347, 363
(6th Cir. 2008); Robert N. Clemens Trust v. Morgan Stanley DW, Inc., 485 F.3d 840,
853 (6th Cir. 2007).
Cir. 1996); Spates v. Aramark Food Service, No. 2:16-cv-92, 2016 WL 4136528, at *2
(W.D. Mich. Aug. 4, 2016). 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); see Lane v. Wexford Health Sources, 510 F. App’x 385, 387-88 (6th
Cir. 2013). Plaintiff has not presented evidence of a custom or policy sufficient to
establish entitlement to relief against the corporate defendant. See Street, 102 F.3d
at 818; see also Parsons v. Caruso, 491 F. App’x 597, 609 (6th Cir. 2012).
For the reasons set forth herein, plaintiff’s state-law claim will be dismissed
pursuant to the statutory authority provided in 28 U.S.C. § 1915(e)(2)(B)(ii) because
he failed to state a claim upon which relief can be granted. Defendants’ motion for
summary judgment (ECF No. 37) will be granted and a judgment will be entered in
defendants’ favor on all plaintiff’s federal claims.
Dated: March 30, 2017
/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge
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