Cummings #423843 v. Michigan Department of Corrections Bureau of Health Care Services et al

Filing 11

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

KEITH TYRONE CUMMINGS,
Plaintiff,

Case No. 2:13-cv-237

v.

Honorable Robert Holmes Bell

MICHIGAN DEPARTMENT OF
CORRECTIONS BUREAU OF HEALTH
CARE SERVICES,
Defendants.
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OPINION
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983.
The Court has granted Plaintiff leave to proceed in forma pauperis, and Plaintiff has paid the initial
partial filing fee. Under the Prison Litigation Reform Act, PUB. L. NO . 104-134, 110 STAT . 1321
(1996), the Court is required to dismiss any prisoner action brought under federal law if the
complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks
monetary relief from a defendant immune from such relief. 28 U.S.C. §§ 1915(e)(2), 1915A; 42
U.S.C. § 1997e(c). The Court must read Plaintiff’s pro se complaint indulgently, see Haines v.
Kerner, 404 U.S. 519, 520 (1972), and accept Plaintiff’s allegations as true, unless they are clearly
irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992). Applying these
standards, Plaintiff’s action will be dismissed for failure to state a claim.

Factual Allegations
Plaintiff Keith Tyrone Cummings, a state prisoner currently confined at the Saginaw
Correctional Facility, filed this civil rights action pursuant to 42 U.S.C. § 1983 against Defendants
Michigan Department of Corrections Bureau of Health Care Services, and Health Care Providers Dr.
Brendon J. Sherry, J. Schad, R.N., Dr. Roger M. Gertach, and Laura Kinder, R.N. Plaintiff alleges
that Defendants failed to provide him with appropriate medical care for his right knee.
Plaintiff alleges that Defendant Sherry misread x-ray results regarding arthritis and
cartilage damage to Plaintiff’s right knee. Plaintiff complains that Defendants Sherry, Kinder, and
Schad have failed to provide Plaintiff with needed knee surgery or pain medications. Plaintiff claims
that he suffers from acute pain as a result. Plaintiff further claims that Defendants Gertach and
Sherry refused to run necessary tests on fluid extracted from Plaintiff’s knee prior to refusing
Plaintiff surgery or medication. Defendant Schad declined to address Plaintiff’s concerns in
responding to the step III grievances Plaintiff filed regarding his medical care.
Plaintiff attaches numerous grievances, grievance appeals, and responses as exhibits
to his complaint. According to the step II response to grievance number MTU 12 02 0226 12d,
Plaintiff was examined offsite on December 12, 2011, and four views of his right knee were done
by x-ray. The x-rays were submitted for interpretation on January 6, 2012, and it was noted that soft
tissue swelling was present in the prepatellar and suprapatellar bursa region to a mild degree. In
addition, it was observed that the patella demonstrated a normal relationship to the intercondylar
groove, although decreased joint space was seen in the medial compartment. In addition, mild
arthritic changes were seen involving the anterior and posterior surface of the patella. However,

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there was no evidence of an acute displaced fracture or acute osseous abnormality, and the knee
articulating space was preserved. See docket #1-1, p. 18 of 49.
According to the step II response to grievance number MTU 12 02 0227 12d, Plaintiff
had a medical appointment on December 14, 2011, during which Plaintiff’s right knee was injected
with methylprednisolone acetate, lidocaine, and bupivacaine. In addition, 10 ml of straw colored
joint fluid was extracted from Plaintiff’s knee. The electronic medical record indicated that “there
was no evidence in the description/evaluation of the fluid removed to support laboratory testing.”
See docket #1-1, p. 26 of 49. Defendant Kinder, who responded to the step II grievance, concluded
that Plaintiff was “being evaluated, treated, diagnostic testing conducted and monitored by the
Medical Provider (MP),” who was responsible for determining the most appropriate treatment after
taking into consideration all available information. Id. Defendant Kinder noted that the MP acted
appropriately and that Plaintiff’s disagreement with the treatment plan does not support a claim that
he received inadequate treatment. Id.
The step II grievance response to MTU 12020228 by Defendant Kinder notes that
Plaintiff was seen by the Medical Provider on December 13, 2011, and was still complaining of pain
and difficulty extending his right knee, as well as putting weight on his right leg. Plaintiff described
the pain as lateral to his knee, and complained that it felt like it was “catching.” Plaintiff’s x-rays
were reviewed and were normal. Plaintiff stated that Motrin helped and requested a refill. An
examination of Plaintiff’s right knee showed a moderate amount of patellar effusion compared to
his last visit and Plaintiff was able to extend his knee with encouragement, although Plaintiff was
hesitant and patellar crepitus was present. The Medical Provider consulted with the site M.D. and
arthrocentesis and steroid injection were scheduled.
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Plaintiff was given an ACE wrap for

compression and was advised to elevate his leg. See docket #1-1, p. 28 of 49. The electronic
medical record also showed that on January 5, 2012, the Medical Provider inspected Plaintiff’s right
knee and found no gross effusion or erythema. Although Plaintiff reported tenderness with
palpation, the Medical Provider noted that his responses to minimal palpation seemed hyperexaggerated. Plaintiff’s active range of motion appeared to be quite limited, with Plaintiff refusing
to go past 60 degrees. However, with passive range of motion the Medical Provider was able to
extend Plaintiff’s knee to almost 10 - 15 degrees. The Medical Provider noted that Plaintiff
displayed an exaggerated pain response to the passive range of motion. Finally, the Medical
Provider noted that Plaintiff refused to bear any weight on his right leg. Id.
On January 8, 2012, the Radiologist’s interpretation of Plaintiff’s December 12, 2011,
x-ray indicated that there was soft tissue swelling in the suprapatellar bursa region, mild arthritic
changes of the patella, and early arthritic changes of the joint space and articulating surface. Id. On
February 1, 2012, Plaintiff was seen by the supervising physician for continued knee pain. The
doctor noted that Plaintiff’s x-rays were negative except for patellar findings and that he was
complaining of localized pain on the fibular insertion site of LCL (lateral collateral ligament). No
heat, redness, effusion, crepitus, swelling, or instability were present. The doctor injected the trigger
point, but as expected, it did nothing. The doctor emailed the Regional Medical Director for a
second opinion. Id. On February 3, 2012, Plaintiff was seen by nursing staff after he requested a
pain shot because his leg was “locking up.” Plaintiff was examined and no redness, effusion, or
swelling were noted. Plaintiff was holding his leg in a flexed position and when the nurse attempted
to manually straighten the leg, Plaintiff writhed in pain or thrashed in the chair. The nurse concluded
that there was “no swelling, redness, warmth, or effusion or instability of right knee joint.” Id.
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The step III grievance response to MTU 12020228 by Defendant Schad states:
All relevant information within the electronic medical record has
been reviewed. Step I and Step II appropriately addressed this
grievance and are affirmed at the Step III appeal. Allegations are not
substantiated. X-ray films are read by the Radiologist, a dictation is
provided and issued to the Medical Provider. The Medical Provider
then determines his plan of care based upon all evidence, to include
reports, subjective complaints, objective evaluations, etc. A
disagreement with the judgment of someone qualified and capable of
making same does not support a claim of denial of care. No
violations have been identified.
See docket #1-1, p. 27 of 49.
The step III grievance response to MTU 12020230 by Defendant Schad noted:
All relevant information within the electronic medical record has
been reviewed. Step I and Step II appropriately addressed this
grievance and are affirmed at the Step III appeal. The Medical
Provider referenced having another Department Physician assess the
grievants [sic] knee on February 1, 2012. This was to occur
approximately February 13, 2012 within the facility, however, the
grievant transferred for alternate reasons. There is no support the
Medical Provider indicated the grievant would be sent offsite for this
evaluation. Allegations of falsification of documents or retaliation is
not supported. Grievants [sic] needs continue to be appropriately
assessed, evaluated and treated as determined medically indicated by
qualified health care professionals. A disagreement with the
judgment of someone qualified and capable of making same does not
support a claim of denial of care.
See docket #1-1, p. 42 of 49.
Plaintiff claims that Defendants violated his rights under the Eighth Amendment.
Plaintiff seeks compensatory and punitive damages, as well as declaratory and injunctive relief.

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Discussion
I.

Failure to state a claim

A complaint may be dismissed for failure to state a claim if it fails “‘to give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While
a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include more
than labels and conclusions. Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice.”). The court must determine whether the complaint contains “enough facts to state
a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 679. Although
the plausibility standard is not equivalent to a “‘probability requirement,’ . . . it asks for more than
a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’ – that the
pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (quoting FED . R. CIV . P. 8(a)(2)); see also Hill
v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding that the Twombly/Iqbal plausibility
standard applies to dismissals of prisoner cases on initial review under 28 U.S.C. §§ 1915A(b)(1)
and 1915(e)(2)(B)(I)).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right
secured by the federal Constitution or laws and must show that the deprivation was committed by
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a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Dominguez v. Corr.
Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009). Because § 1983 is a method for vindicating federal
rights, not a source of substantive rights itself, the first step in an action under § 1983 is to identify
the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994).

Initially, the Court notes that Plaintiff may not maintain a § 1983 action against the Michigan
Department of Corrections Bureau of Health Care Services. Regardless of the form of relief
requested, the states and their departments are immune under the Eleventh Amendment from suit
in the federal courts, unless the state has waived immunity or Congress has expressly abrogated
Eleventh Amendment immunity by statute. See Pennhurst State Sch. & Hosp. v. Halderman, 465
U.S. 89, 98-101 (1984); Alabama v. Pugh, 438 U.S. 781, 782 (1978); O’Hara v. Wigginton, 24 F.3d
823, 826 (6th Cir. 1993). Congress has not expressly abrogated Eleventh Amendment immunity
by statute, Quern v. Jordan, 440 U.S. 332, 341 (1979), and the State of Michigan has not consented
to civil rights suits in federal court. Abick v. Michigan, 803 F.2d 874, 877 (6th Cir. 1986). In
numerous unpublished opinions, the Sixth Circuit has specifically held that the MDOC is absolutely
immune from suit under the Eleventh Amendment. See, e.g., McCoy v. Michigan, 369 F. App’x 646,
653-54 (6th Cir. 2010); Turnboe v. Stegall, No. 00-1182, 2000 WL1679478, at *2 (6th Cir. Nov. 1,
2000). In addition, the State of Michigan (acting through the Michigan Department of Corrections)
is not a “person” who may be sued under § 1983 for money damages. See Lapides v. Bd. of Regents,
535 U.S. 613 (2002) (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58 (1989)). Therefore, the
Court dismisses the Michigan Department of Corrections Bureau of Health Care Services.

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As noted above, Plaintiff claims that the remaining Defendants violated his Eighth
Amendment rights by denying him adequate treatment for his right knee. 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 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
Cnty., 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 Cnty., 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
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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 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.
Id. 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). This case
is factually distinguishable from the situation in Moore v. Cheatham, et al., No. 13-1299 (6th Cir.
Jan. 13, 2014), which was recently addressed by the Sixth Circuit. In Moore, the plaintiff, a prisoner,

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suffered from a hydrocele for a number of years and was treated mainly with an order for “scrotal
support.” On December 1, 2008, Moore was taken to an off-site emergency room and then another
hospital with a painful and swollen testicle. A urologist noted that Moore had an immense hydrocele
and ordered medication to treat his pain and fever. The urologist advised the prison that he could
perform a hydrocele repair when Moore’s fever was gone. Moore was then returned to the prison.
Moore’s medical records show that he was seen by a nurse on December 3, 2008, and again on
December 8, 2008, and that he was given pain medication and antibiotics as ordered by the doctor.
On December 10, 2008, Moore was seen by a doctor who found that his hydrocele was “larger than
a grapefruit.” Moore was then sent to the hospital, where the inpatient review report stated that
Plaintiff’s left hemi-scrotum was the size of a volleyball. On December 11, 2008, Moore underwent
surgery to repair the hydrocele. In reversing the district court’s grant of summary judgment, the
Sixth Circuit noted that a testicle swollen to the size of a volleyball, or even a grapefruit, is obviously
a condition requiring the attention of a physician. The Sixth Circuit stated:
The defendants do not suggest that they were unaware of the doctor’s
orders or of Moore’s pain and requests for health services. Given the
severity of Moore’s condition, a refusal to provide medication and
timely treatment could lead a reasonable trier of fact to conclude that
prison officials exposed Moore to “undue suffering or the threat of
tangible residual injury.” Westlake v. Lucas, 537 F.2d 857, 860 (6th
Cir. 1976); see also Scott v. Ambani, 577 F.3d 642, 648 (6th Cir.
2009).
Moore v. Cheatham, No. 13-1299 (6th Cir. Jan. 13, 2014).
As noted above, Plaintiff’s sole complaint is that Defendants’ did not provide him
with the specific treatment he desired based on his subjective complaints of pain in his right knee.
However, as noted above, Plaintiff was seen by Medical Providers on numerous occasions and was

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provided treatment in accordance with medical tests, x-rays, and physical evaluations regarding the
condition of his right knee. 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).
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Plaintiff’s action will be dismissed for failure to state a claim pursuant to 28 U.S.C.
§§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c).
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 dismisses the action, the Court discerns no
good-faith basis for an appeal. Should Plaintiff appeal this decision, the Court will assess the
$505.00 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 he is barred, he will be required to pay the $505.00 appellate filing fee in one lump sum.
This is a dismissal as described by 28 U.S.C. § 1915(g).
A Judgment consistent with this Opinion will be entered.

Dated: April 16, 2014

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