Hardy #267170 v. Gauderer et al
ORDER ADOPTING IN PART REPORT AND RECOMMENDATION 80 re 13 : Defendant Bratel's Motion for Summary Judgment 13 is GRANTED IN PART AND DENIED IN PART; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
Case No. 1:16-cv-1130
ERNST CHRISTIAN GAUDERER,
HON. GORDON J. QUIST
ORDER ADOPTING IN PART
REPORT AND RECOMMENDATION
This is a pro se civil rights action brought pursuant to 42 U.S.C. § 1983 by a state prisoner
in the custody of the Michigan Department of Corrections. On December 22, 2016, Defendants
Michelle Bratel and Heather Woodin brought a motion for summary judgment based solely on
Plaintiff Jermaine Hardy’s failure to exhaust administrative remedies. On August 14, 2017,
Magistrate Judge Ray Kent issued a Report and Recommendation (R & R) recommending that the
Court grant Bratel’s motion for summary judgment as to Hardy’s fourth cause of action due to his
failure to properly exhaust his claim that Bratel fabricated documents for the purpose of denying
him medical treatment. 1 (ECF No. 80 at PageID.659.) Hardy filed an objection to the R & R on
August 28, 2017. (ECF No. 81 at PageID.666.)
Hardy admits that he failed to exhaust his administrative remedies for the claim that Bratel
fabricated documents for the purpose of denying him medical treatment.
(ECF No. 81 at
As the magistrate judge noted in the R & R, Hardy sought no relief against Woodin in the cause of action in
question, and therefore the Court will only address whether Hardy has exhausted his claims against Bratel.
PageID.667.) However, Hardy requests that the Court parse his fourth cause of action, and only
dismiss the portion relating to Bratel allegedly “fabricat[ing] his in-take documents to deny
treatment.” (Id.) Hardy’s Fourth cause of action reads as follows:
Plaintiff alleges that defendant Bratel was directly involved with Gauderer, had the
knowledge and acquiescence and knew Plaintiff would suffer withdrawals when
his Wellbutrin was stopped “cold turkey” and fabricated his in-take documents to
deny treatment, constituted deliberate indifference in violation of the Eighth
(ECF No.1 at PageID.13) In her motion, Bratel herself claimed that she was entitled to summary
judgment on the grounds that Hardy failed to exhaust the fabrication allegation specifically, and
not the entire fourth cause of action. (ECF No. 14 at PageID.105.)
Parsing out the clause “and fabricated his in-take documents to deny treatment” leaves the
cause of action with the allegation, in summary, that Bratel knew Hardy “would suffer
withdrawals” from Wellbutrin which “constituted deliberate indifference in violation of the Eighth
Amendment.” This is similar to Hardy’s sixth cause of action, which “alleges that Gauderer, Bratel
and Woodin knew that he was suffering from Wellbutrin withdrawals.” (ECF No. 1 at PageID.14.)
(emphasis added) The differences between the proposed parsed fourth and the sixth causes of
action are the inclusion of Gauderer and Woodin in the latter, and the verb tense of the effect on
Hardy, i.e. the conditional “would suffer” versus the past continuous “was suffering.” While the
Court expresses no opinion as to the viability of Hardy’s claims for deliberate indifference, under
Federal Rule of Civil Procedure Rule 8(e)(2), he can plead alternative statements of a claim.
However, he cannot simply restate a claim for deliberate indifference in order to gain a double
Therefore, the magistrate judge properly dismissed the allegation that Bratel “fabricated
[Hardy’s] in-take documents to deny treatment.” However, the Court agrees with Hardy that his
fourth cause of action should not be dismissed in its entirety, and therefore dismisses only the
fabrication allegation without prejudice. The R & R is therefore adopted to the extent that it
dismisses the fabrication claim.
Hardy also objected to some facts stated in the R & R, such as Woodin’s job title and the
date of his depression diagnosis. (ECF No. 81 at PageID.667.) The R & R is not determinative as
to these facts and they may be determined at a later stage. This order relates only to the question
Therefore, IT IS HEREBY ORDERED that the Magistrate Judge’s Report and
Recommendation issued August 14, 2017, (ECF No. 80) is APPROVED IN PART AND
ADOPTED IN PART as the Opinion of this Court, and Petitioner’s Objection (ECF No. 81) is
SUSTAINED IN PART.
IT IS FURTHER ORDERED that Defendant Bratel’s Motion for Summary Judgment
based on lack of exhaustion (ECF No. 13) is GRANTED IN PART AND DENIED IN PART.
Dated: September 29, 2017
/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
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