Shulick #447749 v. Michigan Department of Corrections et al
OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
JOHN JOSEPH SHULICK,
File No. 2:11-CV-73
HON. ROBERT HOLMES BELL
MICHIGAN DEPARTMENT OF,
CORRECTIONS, et al.,
On May 1, 2013, Magistrate Judge Timothy P. Greeley issued a Report and
Recommendation (“R&R”) recommending that Defendant Sue Wilson’s motion to dismiss
and for summary judgment (Dkt. No. 132) be granted. (Dkt. No. 151.) This matter is before
the Court on Plaintiff’s objections to the R&R. (Dkt. No. 152.)
This Court makes a de novo determination of those portions of an R&R to which
specific objections are made. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). “[A] general
objection to a magistrate’s report, which fails to specify the issues of contention, does not
satisfy the requirement that an objection be filed. The objections must be clear enough to
enable the district court to discern those issues that are dispositive and contentious.” Miller
v. Currie, 50 F.3d 373, 380 (6th Cir. 1995). The Court may accept, reject, or modify any or
all of the Magistrate Judge’s findings or recommendations. Id.
Plaintiff raises eight objections: (1) he is not an inmate at the Ionia Correctional
Facility; (2) the incidents in the complaint occurred at the Chippewa Correctional Facility and
not at the Alger Correctional Facility; (3) the Magistrate Judge was prejudiced as evidenced
by his reference only to Wilson’s affidavit; (4) the Magistrate Judge misapplied the Rule 56
standard when he ignored Plaintiff’s affidavit and the incorporated exhibits; (5) the
Magistrate Judge was required to issue a ruling on Plaintiff’s Rule 56(d) affidavit requesting
additional time for discovery (Dkt. No. 138) before ruling on Wilson’s motion for summary
judgment; (6) because the Magistrate Judge did not consider any of Plaintiff’s Rule 56(d)
materials, he could not fairly adjudicate “all material made pertinent to such a motion by
Rule 56” and thus unfairly prejudiced Plaintiff; (7) the Magistrate Judge drew clearly
erroneous and contradictory conclusions from the medical evidence; and (8) the Magistrate
Judge erred by stating that a medical provider cannot be deliberately indifferent if she
provides some form of treatment.
Plaintiff first argues that the Magistrate Judge incorrectly stated that he is an inmate
at the Ionia Correctional Facility. This is immaterial; the analysis in the R&R and the
conclusions reached therein did not depend on Plaintiff’s present facility.
Second, Plaintiff argues that the Magistrate Judge incorrectly indicated that the
incidents in the complaint occurred at Alger. As with the first objection, the location of the
incidents is immaterial to the complaint and unrelated to the substantive findings in the R&R.
Plaintiff’s third objection is frivolous. The two references to a “single affidavit” are
contained in explanatory parentheticals attached to case citations. (See Dkt. No. 151, at 4.)
While the Magistrate Judge later discussed Defendant Wilson’s affidavit, he never stated that
her affidavit was the only affidavit filed. (Id. at 9, 13.) Neither reference to an affidavit is
evidence of prejudice.
Objections four and six are the same objection and are both frivolous. While the
Magistrate Judge did not cite to Plaintiff’s affidavit or exhibits (Dkt. No. 138), that does not
mean that these documents were not considered. Nevertheless, the Court has re-examined
Plaintiff’s affidavit and exhibits in light of his objection. The material contained therein does
not create a genuine issue of material fact as to whether Defendant Wilson acted with a
culpable state of mind. She clearly did not , and the Court agrees with the Magistrate Judge’s
decision not to cite Plaintiff’s documents.
In objection five, Plaintiff argues that the Magistrate Judge should have ruled on his
Rule 56(d) affidavit seeking to extend discovery. Plaintiff is correct in this regard, and the
Court will address the merits of the request at this time.
Rule 56(d) provides that the Court may grant leave for more discovery under the
If a nonmovant shows by affidavit or declaration that, for specified reasons,
it cannot present facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery;
(3) issue any other appropriate order.
Fed. R. Civ. P. 56(d). Plaintiff was afforded a full opportunity for discovery (see Dkt. No.
45), and has not shown that further discovery is necessary. Plaintiff’s complaint alleges that
when he was in the Chippewa segregated housing unit on November 28, 2009, “RN JANE
DOE” palpitated his thigh and concluded that the swelling was minimal despite the fact that
the severe extent of his injury was manifestly obvious. (Dkt. No. 1, at ¶ 57.) While Plaintiff
did not identify RN Jane Doe as Defendant Wilson until after the discovery period had
concluded, the discovery Plaintiff claims he still needs to conduct – attaining copies of his
complete medical record, of a video of the incident in question, and of custody logs – could
have been conducted in the four month discovery period provided by the Magistrate Judge.
(See Dkt. No. 45.) To the extent Plaintiff was unsuccessful in his efforts to discover these
materials during that time frame, he has not demonstrated that he sought these materials in
a manner authorized by the Federal Rules of Civil Procedure or that any party wrongfully
denied him access to these materials.
Additionally, the Court notes that Plaintiff has not demonstrated that these discovery
materials would enable him to adequately oppose Defendant Wilson’s motion for summary
judgment. “‘Rule [56(d)] is not a shield that can be raised to block a motion for summary
judgment without even the slightest showing by the opposing party that his opposition is
meritorious.’” Emmons v. McLaughlin, 874 F.2d 351, 356 (6th Cir. 1989) (quoting Willmar
Poultry Co. v. Morton-Norwich Prods., Inc., 520 F.2d 289 (8th Cir. 1975)). Plaintiff’s
affidavit demonstrates a desire to conduct a fishing expedition. As Plaintiff himself admits,
the basis for the substantial discovery he still wishes to conduct is that he “cannot be certain
at this time that NP Sue Wilson is not the mysterious ‘RN, Jane Doe[.]’” (Dkt. No. 138, at
16.) However, the Court is certain that Wilson was not the person identified as Jane Doe.
The Court has Defendant Wilson’s affidavit, in which she swears not only that she never
treated Plaintiff on the night in question, but also that she was not even employed at
Chippewa on the night in question. (See Dkt. No. 132, Ex. 2, Wilson Aff. ¶¶ 5-6.) Plaintiff’s
medical records support Defendant Wilson’s affidavit and indicate that Michael G. Brown
RN examined Plaintiff on November 28, 2009. (Dkt. No. 132, Ex. 2, at PageID# 1833.) As
discussed in the R&R, Brown only consulted with Defendant Wilson via telephone that night
regarding Plaintiff’s elevated blood pressure and pain. (Dkt. No. 151, at 9.) This is verified
by the medical records. (Id. at 1834.) Plaintiff’s speculation and baseless accusations do not
warrant needless discovery.
Plaintiff’s seventh objection is that the Magistrate Judge drew erroneous and
contradictory conclusions from the medical evidence. In particular, Plaintiff alleges that the
Magistrate Judge’s following assertion was false:
Because none of this information [about the size of one of Plaintiff’s legs
compared to the other and whether a pulse could be felt in Plaintiff’s feet] is
present in the medical record from November 28, 2009, and because she has
no independent recollection of being given such information, it does not
appear that she was consulted on the condition of Plaintiff’s leg.
(Dkt. No. 151, at 10.) This statement is amply supported by the record. While the medical
record notes that Plaintiff complained of pain in his left leg on November 28, 2009, it does
not state that Plaintiff’s left leg was abnormally swollen or that a pulse could not be felt in
Plaintiff’s feet. (See Dkt. No. 132, Ex. 2, at PageID# 1831-34.) Additionally, the medical
record clearly indicates that Defendant Wilson was only consulted about Plaintiff’s blood
pressure and pain. (Id. at 1834.) The medical record is consistent with Wilson’s affidavit.
(Wilson Aff. ¶ 8.) Consequently, Plaintiff’s objection lacks merit.
Last, Plaintiff argues that the Magistrate Judge misstated the Eighth Amendment
deliberate indifference legal standard in stating that a medical provider who provided some
form of treatment could not be deliberately indifferent, even if that treatment was clearly
insignificant. The Magistrate Judge did not make such a statement. Instead, the Magistrate
Judge quoted Sixth Circuit precedent for the notion that 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 to constitutionalize claims which
sound in state tort law.” (Dkt. No. 151, at 12 (quoting Westlake v. Lucas, 537 F.2d 857, 860
n.5 (6th Cir. 1976)).) However, neither Westlake nor the Magistrate Judge implied that
where some care was provided no further analysis was needed. As Westlake explained, “in
some cases the medical attention rendered may be so woefully inadequate as to amount to no
treatment at all.” 537 F.2d at 860 n.5 (citing Tolbert v. Eyman, 434 F.2d 625, 626 (9th Cir.
1970)). Accordingly, the Magistrate Judge noted his reluctance to second guess the medical
judgment of Defendant Wilson, but further found that “[t]here is no evidence that Defendant
Wilson acted with a culpable state of mind in treating Plaintiff or that Defendant Wilson’s
actions or omissions were sufficiently harmful to rise to the level of deliberate indifference
to serious medical needs.” (Dkt. No. 151, at 13.) Thus, the Magistrate Judge did not
misquote or misapply the law governing deliberate indifference.
In sum, Plaintiff’s objections will be overruled and the Magistrate Judge’s R&R will
be approved and adopted. An order consistent with this opinion will be entered.
Dated: July 16, 2013
/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE
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