Hoffman #181813 v. Behler et al

Filing 79

ORDER ADOPTING REPORT AND RECOMMENDATION 68 re 45 , 53 : Defendants' motions for summary judgment 45 , 53 are GRANTED; case closed; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

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

ROBERT HOFFMAN #181813,
Plaintiff,
v.

Case No. 1:17-CV-316

DENNIS BEHLER et al.,

HON. GORDON J. QUIST

Defendants.
__________________________/
ORDER ADOPTING THE REPORT AND RECOMMENDATION
Plaintiff, Robert Hoffman, a state prisoner at a Michigan Department of Corrections
(MDOC) facility, brought this pro se civil rights action pursuant to 42 U.S.C. § 1983, alleging that
Defendants—Physician’s Assistant (PA) Dennis Behler, PA George Johnson, and Registered
Nurse (RN) Ann Karp—violated Plaintiff’s rights under the Eighth Amendment through deliberate
indifference to Plaintiff’s serious medical needs. Plaintiff also requested that the Court exercise
supplemental jurisdiction over Plaintiff’s state-law gross negligence claims against Defendants.
Defendant Karp moved for summary judgment on the grounds that Plaintiff could not show an
Eighth Amendment violation and that Defendant Karp was entitled to qualified immunity. (ECF
No. 45.) Defendants Behler and Johnson moved for summary judgment, arguing that Plaintiff
could not support a deliberate indifference claim. (ECF No. 53.) Magistrate Judge Phillip Green
submitted a Report and Recommendation (R & R) recommending that the Court grant each
Defendant’s dispositive motion, enter judgment in Defendants’ favor on all of Plaintiff’s federal
claims, and decline to exercise supplemental jurisdiction over Plaintiff’s alleged state law claims.
(ECF No. 68.)

Plaintiff has filed objections to the R & R. (ECF No. 74.) Upon receiving objections to
the R & R, 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.” 28 U.S.C. §
636(b)(1). This Court may accept, reject, or modify any or all of the magistrate judge’s findings
or recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
After conducting a de novo review of the R & R, the objections, and the pertinent portions
of the record, the Court concludes that the R & R should be adopted.
I.

Defendant Karp

Although Defendant Karp’s first argument is that Plaintiff is unable to support his
deliberate indifference claim against her, the Court will address the “threshold question” of
qualified immunity first. Crawford-El v. Britton, 523 U.S. 574, 598, 118 S. Ct. 1584, 1597 (1998).
Plaintiff urges the Court to look to the cases he cited—Scott v. Antonini, 764 F. Supp. 2d
904 (E.D. Mich. 2011), and Blackmore v. Kalamazoo County, 390 F.3d 890 (6th Cir. 2004)—to
find that the alleged violation was of a constitutional right that was clearly established, as required
to defeat a qualified immunity defense. See Plumhoff v. Rickard, 572 U.S. 765, ___, 134 S. Ct.
2012, 2023 (2014).

However, Scott is a district court case that has no precedential value in this

district. And Blackmore is factually distinct; in Blackmore, jail staff did not treat an inmate for
several days, despite “classic signs of appendicitis,” such as vomiting. 390 F.3d at 894. Plaintiff
wants the Court to focus on the holding in Blackmore that “[w]hen prison officials are aware of a
prisoner’s obvious and serious need for medical treatment and delay medical treatment of that
condition for non-medical reasons, their conduct in causing the delay creates the constitutional
infirmity.” Id. at 899. But the Supreme Court has “repeatedly told courts not to define clearly
established law at a high level of generality, since doing so avoids the crucial question whether the

2

official acted reasonably in the particular circumstances that he or she faced.” Plumhoff, 572 U.S.
at ___, 134 S. Ct. at 2023 (quotation marks, citation, and alterations omitted). Thus, Plaintiff has
not shown that the right that Defendant Karp supposedly violated was clearly established.
To the contrary, the Seventh Circuit has held that a “no reasonable jury could conclude that
the failure to prescribe narcotic pain medication or contact a doctor who would prescribe it
amounted to deliberate indifference,” in a factually similar case to this case. Burton v. Downey,
805 F.3d 776, 785 (7th Cir. 2015). Because Plaintiff did not—and could not—show that Defendant
Karp violated a right that was clearly established, Defendant Karp is entitled to qualified immunity
on Plaintiff’s deliberate indifference claim.
II.

Defendants Behler and Johnson

Plaintiff’s deliberate indifference claim against Defendants Behler and Johnson is based
on Defendants’ decision not to order occupational therapy for Plaintiff following his hand
surgeries. To support a deliberate indifference claim, Plaintiff has to prove an objective and a
subjective component—“both that the alleged wrongdoing was objectively harmful enough to
establish a constitutional violation and that the official acted with a culpable enough state of mind,
rising above gross negligence.” Rhinehart v. Scutt, 894 F.3d 721, 737 (6th Cir. 2018).
The Sixth Circuit recognizes three categories of claims under the objective component: (1)
claims that the inmate did not receive any treatment; (2) claims that the treatment was “so cursory
as to amount to no treatment at all;” and (3) claims that despite on-going treatment, the care
provided was “so grossly incompetent, inadequate, or excessive as to shock the conscience or to
be intolerable to fundamental fairness.” Id. (quotation marks and citations omitted). Plaintiff’s
deliberate indifference claim falls under the third category, as he was receiving on-going treatment
for his condition.

3

Under the third category, Plaintiff “must present enough evidence for a factfinder to
evaluate the adequacy of the treatment provided and the severity of the harm caused by the
allegedly inadequate treatment,” including “medical proof that the provided treatment was not an
adequate medical treatment of the inmate’s condition or pain.” Id. (quotation marks, alterations,
and citation omitted). The magistrate judge determined that the declaration and note from
Plaintiff’s physician who performed the hand surgeries was “evidence on which a reasonable trier
of fact could find in plaintiff’s favor on the objective component of Eighth Amendment claims
against PA Behler and PA Johnson.” (ECF No. 68 at PageID.861.) Yet, even if the Court agrees
with the magistrate judge’s finding that Plaintiff has supported the objective component of his
deliberate indifference claims against Defendants Behler and Johnson, Plaintiff’s claims fail on
the subjective component.
“A doctor is not liable under the Eighth Amendment if he or she provides reasonable
treatment, even if the outcome of the treatment is insufficient or even harmful.” Rhinehart, 894
F.3d at 738. There is no dispute that Defendants Behler and Johnson provided on-going treatment
for Plaintiff’s medical condition, including regular evaluations, pain medication prescriptions,
encouraging self-directed physical therapy and range of motion exercises, scheduling a Pain
Management Committee evaluation and an orthopedic visit, requesting follow-up appointments
with specialists, submitting requests for injections and further procedures, and ordering labs.
“When a doctor orders treatment consistent with the symptoms presented and then continues to
monitor the patient’s condition, an inference of deliberate indifference is unwarranted.” Id. at 743
(quotation marks and citation omitted). Plaintiff has not met the “high bar” of proving that
Defendants Behler and Johnson “consciously exposed the patient to an excessive risk of serious
harm.” Id. at 738-39 (quotation marks, citation, and alterations omitted) (emphasis in original).

4

Therefore, Defendants Behler and Johnson are entitled to summary judgment on Plaintiff’s
deliberate indifference claims.
III.

State Law Claims

With no remaining federal claims against Defendants Karp, Behler, and Johnson, the Court
will decline to exercise supplemental jurisdiction over Plaintiff’s alleged state law claims. See 28
U.S.C. § 1367(c)(3); Brown v. Cassens Transp. Co., 546 F.3d 347, 363 (6th Cir. 2008).
IV.

Conclusion

For the reasons stated above,
IT IS HEREBY ORDERED that the August 30, 2018, Report and Recommendation (ECF
No. 68) is approved and adopted as the Opinion of the Court.
IT IS FURTHER ORDERED that Defendants’ motions for summary judgment (ECF
Nos. 45, 53) are GRANTED, and Plaintiff’s federal claims against Defendants Karp, Behler, and
Johnson, are dismissed with prejudice.
IT IS FURTHER ORDERED that the Court will decline to exercise supplemental
jurisdiction over Plaintiff’s alleged state law claims, which are dismissed without prejudice.
This case is concluded.
A separate judgment will enter.

Dated: October 30, 2018

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

5