Hardy #267170 v. Gauderer et al

Filing 102

ORDER ADOPTING REPORT AND RECOMMENDATION 96 re 66 : Defendant Gauderer's Motion 66 for Summary Judgment is GRANTED and Defendant Gauderer is DISMISSED; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JERMAINE HARDY,
Plaintiff,
v.

Case No. 1:16-CV-1130

ERNST CHRISTIAN GAUDERER, et al.,

HON. GORDON J. QUIST

Defendants.
__________________________________/
ORDER ADOPTING
REPORT AND RECOMMENDATION
This is a civil rights action brought by a state prisoner, Jermaine Hardy, under 42 U.S.C. §
1983. On May 17, 2017, Defendant Gauderer filed a motion for summary judgment. (ECF No.
66.) On March 5, 2018, Magistrate Judge Ray Kent issued a Report and Recommendation (R &
R), recommending that the Court grant Gauderer’s motion. (ECF No. 96.) Hardy filed Objections.
(ECF No. 99.)
Under Federal Rule of Civil Procedure 72(b), a party “may serve and file specific written
objections” to the R & R, and the Court is to consider any proper objection. Local Rule 72.3(b)
likewise requires that written objections “shall specifically identify the portions” of the R & R to
which a party objects. Under 28 U.S.C. § 636(b), upon receiving objections to a report and
recommendation, the district judge “shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is made.” After
conducting a de novo review of the R & R, Hardy’s Objections, and the pertinent portions of the
record, the Court concludes that the R & R should be adopted.

Hardy first objects that the R & R inappropriately rejected his 45 page “declaration”
because it was not in the form required by 28 U.S.C. § 1746. Hardy’s declaration qualified that it
was based on his beliefs, which is insufficient under § 1746, Federal Rule of Civil Procedure 56,
and Sixth Circuit precedent. The R & R found that the declaration could therefore not be used as
a substitute for an affidavit. Hardy objects and cites case law in asserting that the Court can accept
his declaration. This objection is unnecessary because the R & R did address the factual allegations
in Hardy’s declaration, and the R & R’s legal conclusions were unaffected. (ECF No. 96 at
PageID.701–02.)
Hardy objects to the R & R’s conclusion that Gauderer used his medical judgment in
discontinuing Hardy’s Wellbutrin prescription, and that his Eighth Amendment claim is more than
a “difference of opinion” between Hardy and Gauderer. Hardy’s central objection is that a jury
could find that Gauderer discontinued his Wellbutrin because it was non-formulary and because
of cost. Whether a drug is formulary or non-formulary can certainly be a consideration in a
doctor’s medical judgment. As to cost, Hardy “has failed to provide any evidence that cost was
the ‘sole’ factor.” Simpkins v. Corr. Corp. of Am., No. 3:07-0948, 2008 WL 5158182, at *13
(M.D. Tenn. Dec. 9, 2008) (R & R). Hardy failed to show that Gauderer did anything but exercise
his medical judgment. Hardy’s difference of opinion does not suffice. Estelle v. Gamble, 429
U.S. 97, 107–08, 97 S. Ct. 285, 292–93. His Eighth Amendment claims are not cognizable under
§ 1983.
Hardy objects to the R & R’s conclusion that his First Amendment retaliation claim fails.
The R & R found that Hardy failed to show an adverse action, as required by Thaddeus-X v. Blatter,
175 F.3d 378, 394 (6th Cir. 1999), because he did not demonstrate that Gauderer altered or
fabricated his medical records.

Hardy now makes the conclusory statement that Gauderer

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fabricated his records and that “[t]his was an adverse action.” “Conclusory statements unadorned
with supporting facts are insufficient to establish a factual dispute that will defeat summary
judgment.” Alexander v. CareSource, 576 F.3d 551, 560 (6th Cir. 2009). Hardy also relies on a
temporal connection alone to establish causation. In the totality of the circumstances, this is
insufficient. See Holzemer v. City of Memphis, 621 F.3d 512, 526 (6th Cir. 2010) (stating that
“often evidence in addition to temporal proximity is required”). Accordingly, the R & R will be
adopted.
Therefore,
IT IS HEREBY ORDERED that the Magistrate Judge’s Report and Recommendation
(ECF No. 96) is APPROVED AND ADOPTED as the Opinion of this Court, and Defendant
Gauderer’s Motion for Summary Judgment (ECF No. 66) is GRANTED, and Gauderer is
DISMISSED from this action.

Dated: March 26, 2018

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

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