Kelly #225090 v. Corizon of Michigan et al

Filing 50

OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 47 ; granting in part and denying in part motion for summary judgment 28 and terminating Defendants Wellpath Now of Michigan and Heather Doolittle; signed by District Judge Jane M. Beckering (lep)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
OPELTON KELLY,
Plaintiff,
Case No. 1:23-cv-67
v.
HON. JANE M. BECKERING
CORIZON OF MICHIGAN, et al.,
Defendants.

____________________________/
OPINION AND ORDER
This is a prisoner civil rights action filed pursuant to 42 U.S.C. § 1983. With the exception
of Plaintiff’s claims against Corizon, which filed bankruptcy, the remaining claims in this case are
Plaintiff’s claims against Defendants Wellpath Now of Michigan, Nurse Practitioner Heather
Doolittle, and Nurse Practitioner Ecoe Hill (collectively, “Defendants”) for alleged Eighth
Amendment violations and state-law claims of gross negligence and medical malpractice.
Defendants filed a motion for summary judgment, arguing that Plaintiff had not exhausted his
administrative remedies for these claims against them. The matter was referred to the Magistrate
Judge, who issued a Report and Recommendation (R&R), recommending that this Court grant in
part and deny in part Defendants’ motion. The matter is presently before the Court on Plaintiff’s
objections to the Report and Recommendation, to which Defendants filed a response.

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 denies the objections and issues this Opinion and Order.

With regard to Defendants Wellpath and NP Doolittle, the Magistrate Judge recommends
that the motion be granted because Plaintiff did not properly exhaust any claims against these two
Defendants (R&R, ECF No. 47 at PageID.312). With regard to Defendant Hill, the Magistrate
Judge recommends that the motion be denied with respect to the Eighth Amendment claim arising
from the August 11, 2022 incident, which is exhausted by “Grievance 598,” but granted “in all
other respects” (id.).
Plaintiff presents essentially four arguments in his objections to the Report and
Recommendation. First, he objects to the legal standard the Magistrate Judge applied, “in its
entirety” (Pl. Obj., ECF No. 48 at PageID.314–315). Plaintiff’s objection is misplaced. The
Magistrate Judge accurately described the legal standard on exhaustion, see R&R, ECF No. 47 at
PageID.305–308, and Plaintiff’s mere disagreement with the standard does not reveal any legal
error by the Magistrate Judge.
Second, with respect to the Magistrate Judge’s finding that Plaintiff “did not file a
grievance against Defendant Wellpath” (R&R, ECF No. 47 at PageID.308), Plaintiff contends that
“the [Michigan Department of Corrections (MDOC)] does not have a grievance procedure for a
private agency like Wellpath” (Pl. Obj., ECF No. 48 at PageID.316). Plaintiff’s argument lacks
merit. As Defendants point out in their response, Wellpath is not a vendor, but an independent
contractor, and Plaintiff was required to properly exhaust his claims against the entity (Defs. Resp.,
ECF No. 49 at PageID.323, citing, e.g., Kitchen v. Snyder, No. 20-1936, 2021 WL 4470032, at *4
(6th Cir. June 23, 2021) (rejecting a similar argument and pointing out that “[c]ourts in this circuit
have recognized that a prisoner must file a grievance against service providers like Corizon to
exhaust administrative remedies”)).

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Next, Plaintiff argues that because he “provided Doolittle’s name and dates many times”
in “Grievance 0598,” the Magistrate Judge erred in finding that he did not exhaust his
administrative remedies for his claims against Defendant Doolittle (Pl. Obj., ECF No. 48 at
PageID.316–317). Plaintiff’s argument is misplaced. The Magistrate Judge’s conclusion as to
Defendant Doolittle was not dependent on Plaintiff failing to identify her; rather, the Magistrate
Judge concluded that the grievance, which was rejected on procedural grounds, failed to exhaust
Plaintiff’s claims against her. See R&R, ECF No. 47 at PageID.309–310.
Last, Plaintiff argues that the Magistrate Judge erred in finding that his Step I grievance
against Defendant Dolittle was upheld at Step II (Pl. Obj., ECF No. 48 at PageID.317). Plaintiff’s
argument lacks merit. Defendants point out that Plaintiff’s argument depends on an apparent
typographical error, to wit: “this step I rejection … is upheld at step I” (Defs. Resp., ECF No. 49
at PageID.324). The record ably supports the Magistrate Judge’s finding that Plaintiff’s grievance
was “upheld at Steps II and III” (R&R, ECF No. 47 at PageID.309, citing Grievance Records, ECF
No. 28-1 at PageID.177–178).
In sum, Plaintiff’s objections fail to demonstrate any factual or legal error in the Magistrate
Judge’s analyses or conclusions as to Defendants Wellpath or Doolittle, and Plaintiff’s objections
do not include any challenge to the Magistrate Judge’s proposed resolution of the motion as to
Defendant Hill.

Accordingly, this Court adopts the Magistrate Judge’s Report and

Recommendation as the Opinion of this Court. Therefore:
IT IS HEREBY ORDERED that the Objections (ECF No. 48) are DENIED and the
Report and Recommendation of the Magistrate Judge (ECF No. 47) is APPROVED and
ADOPTED as the Opinion of the Court.

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IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment (ECF No.
28) is GRANTED IN PART and DENIED IN PART as set forth in the Report and
Recommendation; specifically, Defendants Wellpath Now of Michigan and Heather Doolittle are
TERMINATED as parties in this case, and this case proceeds on Plaintiff’s claim against
Defendant Ecoe Hill “that Hill violated his Eighth Amendment rights when Hill failed to review
his MRI until August 11, 2022.”
/s/ Jane M. Beckering
JANE M. BECKERING
United States District Judge

Dated: June 3, 2024

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
OPELTON KELLY,
Plaintiff,
Case No. 1:23-cv-67
v.
HON. JANE M. BECKERING
CORIZON OF MICHIGAN, et al.,
Defendants.

____________________________/
JUDGMENT
In accordance with the Opinion and Order entered this date:
IT IS HEREBY ORDERED that Judgment is entered in favor of Defendants and against
Plaintiff.

Dated: June ___, 2024
JANE M. BECKERING
United States District Judge