Hoffman #181813 v. Stallman et al

Filing 41

OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION

ROBERT HOFFMAN,
Plaintiff,
v.

Case No. 2:11-cv-317
HON. ROBERT HOLMES BELL

TIMOTHY STALLMAN, et al.,
Defendants.
___________________________________/

OPINION
Plaintiff Robert Hoffman, an inmate currently confined at the Bellamy Creek
Correctional Facility, filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 against doctors
Timothy Stallman, Unknown Neri1, and Harriet A. Squier. Plaintiff alleges that in 1995, he was
diagnosed with Dupuytren’s Contracture disease in his hands and feet. His disease rapidly
progressed, particularly in his left hand. Plaintiff contends that Defendant have failed to provide him
with adequate medical treatment for his condition in violation of the Eighth Amendment.
In 2010-2011, Defendant Stallman twice submitted surgical consult requests, which
were denied by Defendant Squier. Plaintiff claims that Defendant Squier failed to provide an
alternative treatment plan that provided Plaintiff relief from the contracture in his left hand,
particularly his left ring finger. Plaintiff alleges that as a result of the denial of treatment, the
contracture in his ring finger has progressed to more than a 110 degree angle. Plaintiff further claims

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Initially named in Plaintiff’s complaint as “Doctor Nuri.”

that all of the named Defendants refused to provide him proper medication to treat the pain and
sleeplessness caused by his disease. In addition, Plaintiff claims that Defendant Neri failed to approve
his request for athletic shoes in violated of his Eighth Amendment rights. Plaintiff is suing
Defendants in their individual and official capacities and is seeking compensatory and punitive
damages, as well as injunctive relief.
Presently before the Court is the Defendants’ Motion for Summary Judgment, pursuant
to Fed. R. Civ. P. 56. Plaintiff has filed a response, Defendants have replied to this response, Plaintiff
has filed a motion for order to file a “sur-reply,” and Defendants have filed a motion to strike the
motion for order (docket #32, #33, #34, and #36). The matter is now ready for decision. Because
both sides have asked that the Court consider evidentiary materials beyond the pleadings, the
standards applicable to summary judgment apply. See Fed. R. Civ. P. 12(b).
Initially, the court notes Plaintiff has filed a motion for order to file a “sur-reply”
(docket #34), which seeks to amend his response to Defendants’ motion for summary judgment to
include new arguments and printouts of the wikipedia entry on Dupuytren’s contracture. Defendants
have moved to strike this motion (docket #36). As noted by Defendants, Plaintiff was granted an
enlargement of time to file a response to their motion for summary judgment on April 18, 2012, and
again on June 4, 2012 (docket #27 and #31). A review of Plaintiff’s motion reveals that he seeks to
include new arguments and documents in support of his opinion regarding proper treatment for his
condition. The court will grant Plaintiff’s motion (docket #34) and address the attachments to his
motion as part of his response to the motion for summary judgment. In addition, the court will deny
Defendants’ motion to strike (docket #36).
Summary judgment is appropriate only if the moving party establishes that there is no
genuine issue of material fact for trial and that he is entitled to judgment as a matter of law. Fed. R.
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Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). If the movant carries the
burden of showing there is an absence of evidence to support a claim or defense, then the party
opposing the motion must demonstrate by affidavits, depositions, answers to interrogatories, and
admissions on file, that there is a genuine issue of material fact for trial. Id. at 324-25. The
nonmoving party cannot rest on its pleadings but must present “specific facts showing that there is
a genuine issue for trial.” Id. at 324 (quoting Fed. R. Civ. P. 56(e)). The evidence must be viewed
in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251-52 (1986). Thus, any direct evidence offered by the plaintiff in response to a summary judgment
motion must be accepted as true. Muhammad v. Close, 379 F.3d 413, 416 (6th Cir. 2004) (citing
Adams v. Metiva, 31 F.3d 375, 382 (6th Cir. 1994)). However, a mere scintilla of evidence in support
of the nonmovant’s position will be insufficient. Anderson, 477 U.S. at 251-52. Ultimately, the court
must determine whether there is sufficient “evidence on which the jury could reasonably find for the
plaintiff.” Id. at 252. See also Leahy v. Trans Jones, Inc., 996 F.2d 136, 139 (6th Cir. 1993) (single
affidavit, in presence of other evidence to the contrary, failed to present genuine issue of fact); cf.
Moore, Owen, Thomas & Co. v. Coffey, 992 F.2d 1439, 1448 (6th Cir. 1993) (single affidavit
concerning state of mind created factual issue).
In their motion for summary judgment, Defendants assert that their treatment of
Plaintiff did not violate the Eighth Amendment. The Eighth Amendment prohibits the infliction of
cruel and unusual punishment against those convicted of crimes. U.S. Const. amend. VIII. The
Eighth Amendment obligates prison authorities to provide medical care to incarcerated individuals,
as a failure to provide such care would be inconsistent with contemporary standards of decency.
Estelle v. Gamble, 429 U.S. 102, 103-04 (1976). The Eighth Amendment is violated when a prison

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official is deliberately indifferent to the serious medical needs of a prisoner. Id. at 104-05; Comstock
v. McCrary, 273 F.3d 693, 702 (6th Cir. 2001).
A claim for the deprivation of adequate medical care has an objective and a subjective
component. Farmer v. Brennan, 511 U.S. 825, 834 (1994). To satisfy the objective component, the
plaintiff must allege that the medical need at issue is sufficiently serious. Id. In other words, the
inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm.
Id. The objective component of the adequate medical care test is satisfied “[w]here the seriousness
of a prisoner’s need[ ] for medical care is obvious even to a lay person.” Blackmore v. Kalamazoo
County, 390 F.3d 890, 899 (6th Cir. 2004). If, however the need involves “minor maladies or
non-obvious complaints of a serious need for medical care,” Blackmore, 390 F.3d at 898, the inmate
must “place verifying medical evidence in the record to establish the detrimental effect of the delay
in medical treatment.” Napier v. Madison County, 238 F.3d 739, 742 (6th Cir. 2001).
The subjective component requires an inmate to show that prison officials have “a
sufficiently culpable state of mind in denying medical care.” Brown v. Bargery, 207 F.3d 863, 867
(6th Cir. 2000) (citing Farmer, 511 U.S. at 834). Deliberate indifference “entails something more
than mere negligence,” Farmer, 511 U.S. at 835, but can be “satisfied by something less than acts or
omissions for the very purpose of causing harm or with knowledge that harm will result.” Id. Under
Farmer, “the official must both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837.
Not every claim by a prisoner that he has received inadequate medical treatment states
a violation of the Eighth Amendment. Estelle, 429 U.S. at 105. As the Supreme Court explained:
[A]n inadvertent failure to provide adequate medical care cannot be
said to constitute an unnecessary and wanton infliction of pain or to be
repugnant to the conscience of mankind. Thus, a complaint that a
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physician has been negligent in diagnosing or treating a medical
condition does not state a valid claim of medical mistreatment under
the Eighth Amendment. Medical malpractice does not become a
constitutional violation merely because the victim is a prisoner. In
order to state a cognizable claim, a prisoner must allege acts or
omissions sufficiently harmful to evidence deliberate indifference to
serious medical needs.
Estelle, 429 U.S. at 105-06 (quotations omitted). Thus, differences in judgment between an inmate
and prison medical personnel regarding the appropriate medical diagnoses or treatment are not enough
to state a deliberate indifference claim. Sanderfer v. Nichols, 62 F.3d 151, 154-55 (6th Cir. 1995);
Ward v. Smith, No. 95-6666, 1996 WL 627724, at *1 (6th Cir. Oct. 29, 1996). This is so even if the
misdiagnosis results in an inadequate course of treatment and considerable suffering. Gabehart v.
Chapleau, No. 96-5050, 1997 WL 160322, at *2 (6th Cir. Apr. 4, 1997).
The Sixth Circuit distinguishes “between cases where the complaint alleges a complete
denial of medical care and those cases where the claim is that a prisoner received inadequate medical
treatment.” Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976). Where, as here, “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.” Id.; see also Perez v. Oakland County, 466 F.3d 416, 434 (6th Cir.
2006); Kellerman v. Simpson, 258 F. App’x 720, 727 (6th Cir. 2007); McFarland v. Austin, 196 F.
App’x 410 (6th Cir. 2006); Edmonds v. Horton, 113 F. App’x 62, 65 (6th Cir. 2004); Brock v. Crall,
8 F. App’x 439, 440 (6th Cir. 2001); Berryman v. Rieger, 150 F.3d 561, 566 (6th Cir. 1998).
In support of the motion, Defendant Squier attests that Plaintiff has a condition called
Dupuytren’s Contracture, which is a slow developing hand deformity. Over the course of decades,
Dupuytren’s Contracture causes the formation of knots in the connective tissue under the skin of the
palm, eventually developing into a thick cord that can pull one or more of the fingers into a bent or
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flexed position toward the palm, typically the fourth and fifth fingers. The cause is unknown and the
course of the condition is unpredictable, as contractures may worsen over time, or may remain stable
and mild. The condition is not considered totally disabling when only the ring and pinky fingers are
affected by a contracture because the essential operative digits are the index finger, the middle finger
and the thumb for activities of daily living. Treatment options for Dupuytren’s Contracture are
limited and have a low success rate. (Docket #19-2, Defendants’ Exhibit 1, ¶¶ 4-6.)
Plaintiff has been suffering from Dupuytren’s Contracture to the fourth and fifth
fingers of his left hand, and to a lesser degree to his right hand, for a period of several years. (Docket
#19-2, Defendants’ Exhibit 1, ¶ 4.) On August 17, 2010, Defendant Squier reviewed a request for
an orthopedic consultation from Defendant Stallman to evaluate Plaintiff for possible surgery.
Defendant Stallman noted that Plaintiff had a 45 degree contracture on his left hand and a 30 degree
contracture on his right hand. Defendant Stallman further indicated that Plaintiff was complaining
that it was painful to grip items and that he had difficulty climbing or interlacing his fingers.
Defendant Stallman further noted that Plaintiff had nodular densities in his feet and that he was
reporting pain in his feet when ambulating. (Docket #19-2, Defendants’ Exhibit 1, ¶ 7.) In response
to the request for a consultation, Defendant Squier stated:
According to Up to Date: “Patient can stretch the palms gently twice
a day. Place the fingers on the edge of a table, palm down; then lift the
palms upward gradually, keeping fingers flat to the table. Hold for 10
to 20 seconds, perform five repetitions twice daily.”
Other helpful interventions include avoiding a tight grip on handles
and other objects. Sometimes injection with triamcinolone and
lidocaine can be helpful for pain or rapidly growing nodules. This
procedure may not work for longstanding scar tissue, however.
Surgery in younger patients tends to have a poor prognosis, with a very
high rate of recurrence. UP to Date suggests that if at all possible,
surgery be delayed until after age 70.
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(Docket #21, Defendants’ Attachment #1 to Exhibit #1, p. 48 of 70.)
On January 31, 2011, Defendant Squier reviewed a consultation request from Michael
Millette, P.A. to evaluate Plaintiff’s hand contracture. According to the request, Plaintiff continued
to suffer from a contracture of 60 degrees to his left hand and 30 degrees to his right hand, and it was
noted that passive motion did not extend beyond the contracture with frequent stretching as previously
recommended. Finally, the stretching had failed to improve Plaintiff’s condition and that his
activities of daily living (ADLs) were affected. (Docket #19-2, Defendants’ Exhibit 1, ¶ 9, and
Docket #21, Defendants’ Attachment #1, p. 64 of 70.) On February 1, 2011, Defendant Squier
determined that based on her knowledge and research concerning Dupuytren’s contractures, surgical
repair of Plaintiff’s fingers was not a medical necessity. Defendant Squier recommended that
Plaintiff’s condition be managed conservatively. (Docket #19-2, Defendants’ Exhibit 1, ¶ 9, and
Docket #21, Defendants’ Attachment #1, p. 65 of 70.)
On April 29, 2011, Defendant Squier received a consultation request from Defendant
Stallman, which showed that the measure of contracture on Plaintiff’s left hand was 45 degrees,
which was actually better than the measure of Plaintiff’s contracture on the left hand in January of
2011. Plaintiff’s right hand contracture measured 30-45 degrees and nodular densities were noted in
Plaintiff’s feet. Defendant Squier again denied the consultation request, noting that steroid injections
were generally ineffective for this condition and that surgery was risky and had a high recurrence rate
in younger patients. Defendant Squier also noted that Plaintiff’s ADLs did not appear to be
significantly impaired. (Docket #19-2, Defendants’ Exhibit 1, ¶ 10, and Docket #21, Defendants’
Attachment #1, pp. 62-63 of 70.)
On November 18, 2011, Defendant Squier evaluated another request for an orthopedic
consultation for Plaintiff by Defendant Neri. According to Defendant Neri, Plaintiff reported that the
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contracture of the left ring finger had worsened and that the stretching exercises caused pain. Plaintiff
also complained that the nodule on his foot was causing pain when walking. Defendant Squier noted
that Plaintiff had gained 20 to 30 pounds over the past year and that his foot pain would improve if
he lost weight. Defendant Squier advised Plaintiff against repetitive activities and recommended
against surgery. (Docket #19-2, Defendants’ Exhibit 1, ¶ 11, and Docket #21, Defendants’
Attachment #1, pp. 60-61 of 70.)
Finally, Defendant Squier attests that her recommendations against surgery were each
based on the fact that Plaintiff’s condition only affected the ring and pinky fingers, rather than the
index, thumb and middle fingers, and did not significantly interfere with Plaintiff’s ADLs. Defendant
Squier noted that between January 1, 2010, and November 18, 2011, Plaintiff did not complain that
he could not dress or feed himself, use the restroom, or express any other serious limitation. Plaintiff
has been prescribed various medications for his complaints of pain, which include Naprosyn, Motrin,
and Elavil. Plaintiff chose to discontinue the Elavil, claiming that it was ineffective. Plaintiff was
also approved for tennis shoes to address the nodules in his feet. Defendant Squier further noted that
surgical intervention is not recommended for Plaintiff’s condition unless the risk of surgery is
outweighed by the need of the patient to pursue career objectives. Improvement following surgery
may not be significant and there is a high likelihood of recurrence. Plaintiff was instructed to make
lifestyle adjustments to avoid exacerbation of his conditions, such as to avoid repetitive tasks, lose
weight, and avoid smoking and alcohol consumption. There is no evidence that Plaintiff is
developing contractures in his other fingers. (Docket #19-2, Defendants’ Exhibit 1, ¶¶ 12-14, and
Docket #21, Defendants’ Attachment #1, pp. 11-12, 15, 33, 39, 51-52, 55-57, 60, and 64 of 70.)
In his affidavit, Defendant Stallman attests that he saw Plaintiff on July 12, 2010, and
that Plaintiff complained that his Dupuytren’s contractures were causing difficulty with gripping
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items with his left hand, and stated that he could not climb safely or interlace his fingers. Plaintiff
also complained of pain in his feet when walking. Defendant Stallman observed marked contractures
to Plaintiff’s left hand and nodular densities to his feet and recommended an orthopedic consultation
and tennis shoes to alleviate Plaintiff’s foot discomfort. (Docket #19-2, Defendants’ Exhibit 2, ¶ 6,
and Docket #21, Defendants’ Attachment #1, pp. 55-57 of 70.)
On July 24, 2010, Defendant Stallman saw Plaintiff for a follow-up appointment and
noted the alternative treatment plan recommending a physical therapy evaluation. On July 27, 2010,
Plaintiff was given special accommodation orders for a bottom bunk, arch supports, heel cups,
insoles, orthotic shoe inserts, and athletic shoes. (Docket #19-2, Defendants’ Exhibit 2, ¶¶ 7-8, and
Docket #21, Defendants’ Attachment #1, pp. 52 and 54 of 70.) On August 11, 2010, Plaintiff was
evaluated for physical therapy and it was determined that it would not be productive and that
occupational therapy would be more appropriate for evaluating Plaintiff’s condition. (Docket #19-2,
Defendants’ Exhibit 2, ¶ 9, and Docket #21, Defendants’ Attachment #1, p. 49 of 70.)
On August 23, 2010, Defendant Stallman saw Plaintiff to discuss stretching exercises,
Plaintiff was not pleased. From November 10, 2010, until January 1, 2011, Plaintiff was medically
evaluated multiple times because he was on a hunger strike concerning a dispute regarding Plaintiff’s
segregation evaluation.

(Docket #19-2, Defendants’ Exhibit 2, ¶¶ 11-12, and Docket #21,

Defendants’ Attachment #1, pp. 45-46 of 70.) Plaintiff was seen by Defendant Neri on January 7,
2011, who noted no drastic change in Plaintiff’s contractures. (Docket #19-2, Defendants’ Exhibit
2, ¶ 13, and Docket #21, Defendants’ Attachment #1, pp. 40-41 of 70.) On January 28, 2011, Plaintiff
was seen by Theresa Merling, R.N., who noted Plaintiff’s contractures and Plaintiff’s medication
history. Plaintiff requested surgery and Nurse Merling submitted a request for an orthopedic

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evaluation. (Docket #19-2, Defendants’ Exhibit 2, ¶ 15, and Docket #21, Defendants’ Attachment
#1, pp. 36-37, 64-65 of 70.)
On February 8, 2011, Plaintiff was seen by Physician’s Assistant Michael Millette
regarding Plaintiff’s high blood pressure and hand stretching exercises. On March 4, 2011, Plaintiff
was seen by Defendant Neri regarding his high blood pressure. On April 20, 2011, Plaintiff was seen
by Joseph Damron, R.N., who noted that Plaintiff ambulated with a steady gait. Mr. Damron
recommended ibuprofen for pain and provided patient education regarding Plaintiff’s condition.
(Docket #19-2, Defendants’ Exhibit 2, ¶¶ 16-18, and Docket #21, Defendants’ Attachment #1, pp.
30-34 of 70.) On April 27, 2011, Defendant Stallman saw Plaintiff, who complained of increasing
pain in his contractures. Defendant Stallman requested an orthopedic consultation. On April 29,
2011, Defendant Squier recommended that Plaintiff not receive surgery as it was not a medical
necessity and could be counter-effective. (Docket #19-2, Defendants’ Exhibit 2, ¶¶ 19-20, and
Docket #21, Defendants’ Attachment #1, pp. 40-41 of 70.)
Defendant Stallman states that the appropriateness of surgery for Plaintiff is debatable
because there is no cure for his disease, the surgery is risky and in 50% of the cases it produces no
improvement, and Plaintiff is able to perform the activities of daily living, such as dressing and
feeding himself. Defendant Stallman attests that Plaintiff’s complaints of pain were unusual for his
condition and that they were adequately addressed by Naprosyn and other NSAIDs. Defendant
Stallman considers submitting a consultation request to be the same thing as requesting a second
opinion, which is good practice and standard procedure where a patient’s subjective complaints are
inconsistent with objective observations. Defendant Stallman was not surprised by Defendant
Squier’s denial, as it was based on her review of current medical recommendations and is consistent
with protocol. (Docket #19-2, Defendants’ Exhibit 2, ¶¶ 21-23.)
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Defendant Neri’s affidavit is consistent with the affidavits of Defendants Squier and
Stallman, as well as with the medical record. Defendant Neri attests that he first saw Plaintiff on
January 7, 2011, and noted that Plaintiff was able to manage activities of daily living and that there
had been no drastic change in Plaintiff’s contractures from the time of Plaintiff’s prior assessment.
Defendant Neri noted that an orthopedic consultation had been denied five to six months earlier and
that Plaintiff had been prescribed Elavil for pain. Plaintiff stopped taking the Elavil for one week,
so the medication was cancelled. (Docket #19-2, Defendants’ Exhibit 3, ¶ 6, and Docket #21,
Defendants’ Attachment #1, pp. 38-42, 47-50, 56-59, and 68-70 of 70.) Because there was no change
in Plaintiff’s condition, Defendant Neri did not request an orthopedic consultation. (Docket #19-2,
Defendants’ Exhibit 3, ¶ 7.)
Defendant Neri saw Plaintiff on August 31, 2011, and noted that Plaintiff was doing
stretching exercises, but stated that they were not helping and that his pain was getting worse.
Plaintiff was prescribed Naprosyn for pain. On October 26, 2011, Plaintiff told Gerald Covert, R.N.,
that the Naprosyn was not effective. On November 7, 2011, Plaintiff requested a refill of the
Naprosyn, but declined a full assessment. On November 16, 2011, Defendant Neri examined Plaintiff
and recommended an orthopedic consultation in order to determine if any additional treatment was
available for Plaintiff’s condition. Defendant Neri prescribed Motrin for pain. (Docket #19-2,
Defendants’ Exhibit 3, ¶¶ 9-13, and Docket #21, Defendants’ Attachment #1, pp. 7-11, 12, 15-17 of
70.)
Defendant Neri states that he believes that the appropriateness of surgery for Plaintiff
is debatable because there is no cure for his disease, the surgery is risky and in 50% of the cases it
produces no improvement, and Plaintiff is able to perform the activities of daily living, such as
dressing and feeding himself. Defendant Neri attests that Plaintiff’s complaints of pain were unusual
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for his condition and that they were adequately addressed by Naprosyn and other NSAIDs. Defendant
Neri considers submitting a consultation request to be the same thing as requesting a second opinion,
which is good practice and standard procedure where a patient’s subjective complaints are
inconsistent with objective observations. Defendant Neri does not disagree with Defendant Squier’s
denial of an orthopedic consultation, as it was based on her review of current medical
recommendations and is consistent with protocol. (Docket #19-2, Defendants’ Exhibit 3, ¶¶ 15-17.)
In response to Defendants’ motion for summary judgment, Plaintiff offers a printout
of the wikipedia entry for Dupuytren’s contracture, which states that Radiation therapy is a viable
treatment for the early stages of Dupuytren’s contracture and that after a mean follow-up of thirteen
years, radiotherapy is effective in prevention of disease progression. (Docket #34-1, p. 4 of 9.)
A careful review of the record in this case shows that Plaintiff was evaluated on
numerous occasions and that he was provided with the treatment deemed to be appropriate by medical
professionals. The fact that there might be some treatment available that Plaintiff has not been
offered does not compel a finding that Defendants were deliberately indifferent to Plaintiff’s
condition. As noted above, differences in judgment between an inmate and prison medical personnel
regarding the appropriate medical diagnoses or treatment are not enough to state a deliberate
indifference claim. Sanderfer, 62 F.3d at 154-55; Ward v. Smith, 1996 WL 627724 at *1). Therefore,
the court concludes that Plaintiff’s claims against Defendants Squier, Stallman and Neri do not rise
to the level of an Eighth Amendment claim. Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir.
1976).
In light of the foregoing, the court concludes that Plaintiff has failed to sustain his
burden of proof in response to Defendants’ motion for summary judgment. Accordingly, Defendants’

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Motion for Summary Judgment (Docket #19) will be GRANTED and this case will be dismissed in
its entirety.
The court must next decide whether an appeal of this action would be in good faith
within the meaning of 28 U.S.C. § 1915(a)(3). See McGore v. Wrigglesworth, 114 F.3d 601, 611 (6th
Cir. 1997). For the same reasons that the court grants Defendants’ motion for summary judgment,
the court discerns no good-faith basis for an appeal. Should Plaintiff appeal this decision, the court
will assess the $455 appellate filing fee pursuant to § 1915(b)(1), see McGore, 114 F.3d at 610-11,
unless Plaintiff is barred from proceeding in forma pauperis, e.g., by the “three-strikes” rule of §
1915(g). If Plaintiff is barred, he will be required to pay the $455 appellate filing fee in one lump
sum.
An Order and Judgment consistent with this Opinion will be entered.

Dated: February 20, 2013

/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE

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