Weatherspoon #471817 v. Woods et al

Filing 106

OPINION and ORDER ; signed by Judge R. Allan Edgar (Judge R. Allan Edgar, cmb)

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

MORRIS WEATHERSPOON,
Plaintiff,

Case No. 2:14-CV-142
Hon. R. Allan Edgar

v.
JEFFREY WOODS, et al.,
Defendants.
___________________________________/
OPINION & ORDER
Plaintiff Morris Weatherspoon, an inmate currently confined by the Michigan
Department of Corrections (MDOC), filed this pro se civil rights action pursuant to 42 U.S.C. §
1983 alleging violations of his Eighth and Fourteenth Amendment Rights.1 After screening,
Plaintiff sues the following Defendants: Dr. Brostoski, Nurse Practitioner (NP) Brand, Physician
Assistant (PA) Millette, Sergeant Officer Anderson, Assistant Resident Unit Manager (ARUM)
Niemi, Correctional Officer (CO) Brown, CO Shaw, CO Ebert, CO Rumstead, and CO Stuhler.2
ECF No. 1 at 1-5; PageID.1-5. Plaintiff is seeking declaratory relief and punitive damages.
Plaintiff filed a complaint on July 3, 2014, alleging that Defendants acted with
deliberate indifference in treating Plaintiff’s medical conditions, and that Defendants conspired
in doing so. ECF No. 1. Defendants Anderson, Brown, Niemi, Shaw, and Stuhler filed a motion
for summary judgment on May 5, 2015. ECF No. 46. On February 9, 2016, Defendant Ebert
was added to this motion for summary judgment (ECF No. 100), to which Plaintiff filed a

1

According to this Court’s October 1, 2014, Opinion (ECF No. 4), the only remaining claims before this
Court are Plaintiff’s Eighth Amendment and civil conspiracy claims. ECF No. 4 at 21.
2

Defendant Brostoski is deceased. ECF No. 16.

response on February 24, 2016 (ECF No. 101). Defendants Brand and Millette filed a motion for
summary judgment on May 21, 2015. ECF No. 55. Plaintiff filed a response to Defendants’
motions for summary judgment (ECF No. 68) as well as several declarations in support of his
response (ECF No. 69-72, 103). The matter is now ready for a decision.
The following are the events in question viewed in the light most favorable to
Plaintiff. Muhammad v. Close, 379 F.3d 413, 416 (6th Cir. 2004) (citing Adams v. Metiva, 31
F.3d 375, 382 (6th Cir. 1994) (noting any direct evidence offered by Plaintiff in response to a
summary judgment motion are accepted as true)). On May 17, 2012, Plaintiff claims that
Defendants Shaw, Brown, and Stuhler failed to provide him with dental care as needed. ECF
No. 1 at 7; PageID.7. Plaintiff’s gums and mouth were swollen and caused him pain as he would
eat and brush his teeth. Id. Rather than immediately taking him to the dentist, Defendants
confined Plaintiff to his cell. Id.
On August 16, 2012, Plaintiff indicated that he had pain in his left leg, which
made it difficult for him to walk, sit, and sleep. ECF No. 1 at 8; PageID.8. Instead of taking
Plaintiff to the doctor, Defendants Shaw, Rumstead, Ebert, Niemi, and Anderson conducted a
one hour search of Plaintiff’s cell. Id. In addition, on August 16 and 27, 2012, Defendants Brand
and Millette failed to provide medical care for Plaintiff’s leg pain once he was brought to the
medical center. Id.
Based on these occurrences, Plaintiff asserts that Defendants conspired against
him by deciding to disregard his obvious need for medical care. Plaintiff seeks legal redress
before this Court for these alleged violations of his constitutional rights.

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I.
Presently before the Court are Defendants’ motions for summary judgment,
pursuant to Fed. R. Civ. P. 56. Because both motions have asked that the Court consider
evidentiary materials beyond the pleadings, the standards applicable to summary judgment apply.
See Fed. R. Civ. P. 56. 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. 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, 379
F.3d at 416 (citing Adams, 31 F.3d at 382). However, a mere scintilla of evidence in support of
the nonmovant’s position will be insufficient. Anderson, 477 U.S. at 251-52. Notably, “[w]hen
opposing parties tell two different stories, one of which is blatantly contradicted by the record, so
that no reasonable jury could believe it, a court could not adopt that version of the facts for the
purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380
(2007). 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
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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).
II.
Defendants argue that Plaintiff’s § 1983 claims are barred since Defendants were
not deliberately indifferent in their treatment of Plaintiff on the dates in question. To state a
claim under § 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 a person acting under
color of state law.” Moore v. Lowe, No. 1:13-CV-1136, 2014 WL 905840, at *5 (W.D. Mich.
Mar. 7, 2014) (citing Dominguez v. Corr. Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009); West v.
Atkins, 487 U.S. 42, 48 (1988)). “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.” Id. (citing Albright v. Oliver, 510 U.S. 266, 271
(1994)).
Notably, the parties do not dispute that Defendants were acting under the color of
state law during the events in question, as they were either prison officials or prison medical
personnel at the time. Therefore, the validity of Plaintiff’s claims depends on whether
Defendants violated his constitutional rights.
A. Eighth Amendment
Plaintiff claims that Defendants violated his Eighth Amendment rights. The
Eighth Amendment prohibits the infliction of cruel and unusual punishment against those
convicted of crimes. U.S. Const. amend. VIII. The Eighth Amendment’s protections are limited
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to “deprivations of essential food, medical care, or sanitation [or] other conditions intolerable for
prison confinement.” Rhodes v. Chapman, 452 U.S. 337, 348 (1981). “Not every unpleasant
experience a prisoner might endure while incarcerated constitutes cruel and unusual punishment
within the meaning of the Eighth Amendment.” Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir.
1987). For a prisoner to prevail on an Eighth Amendment claim, the prisoner must exemplify
that “he faced a sufficiently serious risk to his health or safety and that the defendant official
acted with “‘deliberate indifference’ to [his] health or safety.” Evans v. Capello, No. 2:12-CV135, 2012 WL 1611227, at *4 (W.D. Mich. May 8, 2012) (quoting Mingus v. Butler, 591 F.3d
474, 479-80 (6th Cir. 2010)). The Eighth Amendment obligates prison authorities to provide
medical care to incarcerated people, and a failure to provide such care would be inconsistent with
contemporary standards of decency. Estelle v. Gamble, 429 U.S. 97, 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
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.; Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 899 (6th Cir. 2004)
(“Where the seriousness of a prisoner’s need[] for medical care is obvious even to a lay
person.”). 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
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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 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

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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).
i. Dental Pain
On May 17, 2012, Plaintiff claims that Defendants “Shaw, Brown and Stuhler
repeatedly failed to provide plaintiff Morris Weatherspoon with urgent dental care and services.”
ECF No. 1 at 7; PageID.7. Specifically, Plaintiff stated that he “complained, communicated and
told Defendants Brown, Shaw, [and] Stuhler [he] was experiencing sharp and severe pain at tooth
no. 26 with obvious signs and or symptoms of gums bleeding, swelling of gums, difficulty
sleeping and eating food as Plaintiff also complained about medication, experiencing pain from
extraction of tooth no. 25 on Friday, May 11, 2012.” ECF No. 68 at 5; PageID.465; see ECF No.
1 at 7; PageID.7 (claiming it hurt to eat and brush his teeth). Starting at 6:00 a.m. on May 17,
2012, Plaintiff complained to Defendants about his tooth pain; however, Defendants did not let
him go to the dentist until that afternoon. ECF No. 68 at 5; PageID.465. In addition, Plaintiff
claims that Defendants told him that “health care been calling over here for you[,] I told them
you went to the big yard.” ECF No. 69 at 2; PageID.491. Once Plaintiff went to the dentist on
May 17th, he claims that the nurses told him that he would have to “endure pain and bear the
abuse [of his tooth pain] until Friday May 18, 2012[,] which that [was] the only time a dentist
[could] examine Plaintiff.” ECF No. 69 at 3; PageID.492. Plaintiff claims that he suffered
“disfigurement, disability, worsening and deterioration of [his] health” as a result of Defendants’
six hour delay in allowing him to obtain dental care on May 17, 2012. ECF No. 68 at 4
PageID.464.
Under the objective prong of Plaintiff’s Eighth Amendment claim, Plaintiff
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alleges that Defendants’ six hour delay in taking Plaintiff to the dentist caused him to suffer
“disfigurement and disability.” ECF No. 68 at 4-5;PageID.464-465. However, aside from these
self-serving conclusory allegations, Plaintiff has not submitted any evidence to support this
assertion. See Napier, 238 F.3d at 742 (quoting Hill v. Dekalb Regional Youth Detention Center,
40 F.3d 1176, 1188 (11th Cir. 1994) (“An inmate who complains that delay in medical treatment
rose to a constitutional violation must place verifying medical evidence in the record to establish
the detrimental effect of the delay in medical treatment to succeed.”)); see Blackmore, 390 F.3d
at 898 (“[T]he ‘verifying medical evidence’ requirement is relevant to those claims involving
minor maladies or non-obvious complaints of a serious need for medical care.”).
Moreover, upon review of the evidence of record, it is clear that Plaintiff did not
suffer any serious long or short term harm or “disfigurement” to his teeth or health in general as a
result of his delayed dental visit on May 17, 2012. See ECF No. 48 at 3-4; PageID.330-331. For
example, the medical evidence indicates that Dental Assistant Beckie Rosebrock examined
Plaintiff on May 17, 2012, for complaints of tender gums. ECF No. 48 at 3, 6-7; PageID.330,
333-334. She noted that she prescribed Plaintiff ibuprofen and an oral rinse that day, and that an
appointment was scheduled for Plaintiff to see the dentist the following day for a follow-up. Id.
The evidence shows that Plaintiff did, in fact, see Dentist Adam Winkler on May 18th because
Plaintiff “had a tooth pulled, [and he] want[ed] to make sure [he didn’t] have an infection.” ECF
No. 48 at 3; PageID.330. The dentist examined Plaintiff and concluded that Plaintiff did not
have an infection, that Plaintiff was healing well, and that Plaintiff was pleased by the end of the
visit. ECF No. 48 at 4; PageID.331. Clearly, based on this evidence, Plaintiff did not suffer any
serious health problems or facial disfigurement. See Blackmore, 390 F.3d at 898 (“[M]edical
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proof is necessary to assess whether the delay caused a serious medical injury.”). Because
Plaintiff has not shown that any potential delay in dental care on May 17th caused him
sufficiently serious long or short term harm, Plaintiff has not satisfied the objective component of
his Eighth Amendment claim. Farmer, 511 U.S. at 834.
Even if Plaintiff had shown that he suffered serious harm due to a six hour delay
in receiving dental care on May 17th, Plaintiff has not satisfied the subjective prong of his Eighth
Amendment claim. Specifically, Plaintiff has not demonstrated that Defendants were
deliberately indifferent to his need for medical care. Farmer, 511 U.S. at 837 (noting defendants
must be “aware of facts from which the inference could be drawn that a substantial risk of serious
harm exists,” or that Defendants drew the inference). In fact, the abovementioned medical
evidence directly contradicts Plaintiff’s assertion that Defendants Shaw, Brown and Stuhler acted
with deliberate indifference to Plaintiff’s need for dental care on May 17th. This is because the
evidence shows that Defendants took Plaintiff that day to see the dental assistant as Plaintiff
requested, and there is no evidence in the record demonstrating that Plaintiff’s dental issues were
so severe that immediate attention was necessary. See Farmer, 511 U.S. at 835 (noting that
something more than mere negligence needs to be asserted to sustain an Eighth Amendment
claim). Therefore, Plaintiff has not shown that Defendants had the requisite intent to satisfy the
subjective component of his Eighth Amendment claim, and consequently this claim fails.
ii. Leg Pain
Next, Plaintiff argues that on August 16, 2012, Defendants Shaw, Niemi,
Rumstead, Ebert, and Anderson “repeatedly denied, delayed and disregarded plaintiff’s routine,
emergent and urgent care when the need for treatment was obvious and relief was available.”
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ECF No. 1 at 8; PageID.8. Specifically, Plaintiff alleges that Defendants prevented him from
accessing a medical provider and x-ray technician. Id.; ECF No. 102 at 5, 7-8; PageID. 579, 581582. As a result, Plaintiff claims he unnecessarily suffered intense pain, aches, and discomfort of
his left leg, which made it difficult for him to walk, sit, and sleep. ECF No. 1 at 8; PageID.8.
In addition, on August 16 and 27, 2012, Plaintiff claims that Defendants Brand
and Millette “delayed, disregarded and denied plaintiff emergent and urgent medical care” when
he was experiencing leg pain and discomfort when he walked, sat, and slept. Id. Plaintiff alleges
that he remains untreated and “subjected to needless pain, suffering, physical injury, mental and
emotional distress” as a result. Id.
a. Defendants Shaw, Ebert, Niemi, and Anderson
On August 16, 2012, Plaintiff claims that Defendants Shaw, Ebert, Niemi, and
Anderson intentionally conducted a one hour search of his cell, thereby delaying his ability to
receive medical attention. ECF No. 68 at 10; PageID.470; ECF No. 102 at 7-8; PageID.581-582.
Plaintiff claims that if Defendants wanted to conduct a search of his cell for one hour while he
was in pain, they could have sent him to the medical center to obtain x-rays while they conducted
a cell search. ECF No. 68 at 11; PageID.471. Since this was not done, Plaintiff claims that his
delay in obtaining x-rays and general medical attention caused his health to deteriorate. Id.
Under the objective prong of his Eighth Amendment claim (whether Plaintiff
suffered a serious harm), Plaintiff has not demonstrated that the one hour delay in obtaining
medical treatment due to Defendants Shaw, Ebert, Niemi, and Anderson’s one hour cell search
caused him serious or detrimental harm. Farmer, 511 U.S. at 834. As previously mentioned,
“[a]n inmate who complains that delay in medical treatment rose to a constitutional violation
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must place verifying medical evidence in the record to establish the detrimental effect of the
delay in medical treatment to succeed.” Napier, 238 F.3d at 742 (quoting Hill, 40 F.3d at 1188).
Aside from his own conclusory allegations and subjective interpretations of his mental condition,
Plaintiff has not provided any medical evidence to support his claim that he suffered a serious
harm due to any potential delay in medical treatment on August 16, 2012. Whitley v. Spencer
Cnty. Police Det., 178 F.3d 1298 (Table), 1999 WL 196499, at *3 (6th Cir. 1999) (noting
plaintiff could not demonstrate “serious harm” for the objective prong of an Eighth Amendment
claim when “the objective medical evidence contradicts plaintiff’s self-serving [declarations] and
conclusory allegations.”).
Rather, the medical evidence from August 16, 2012, shows that
Plaintiff did not suffer serious harm due to any delay in medical treatment. For example,
Defendant Brand noted in his chart that he saw Plaintiff on August 16, at which time Plaintiff
was being seen for a “lump in his leg that [was] causing some numbness that he [was] sure [was]
a sign of a heart attack or stroke.” ECF No. 48 at 9; PageID.336. Defendant Brand examined
Plaintiff, noted that overall he was in good health except for the symptoms he complained of in
his leg, and then ordered an x-ray exam of his left thigh. ECF No. 48 at 8-9; PageID.335-336. In
addition, Defendant Brand told Plaintiff that he was not having a heart attack, which relieved
him. ECF No. 48 at 10-12; PageID.337-339. Two days later, the medical records show that
Plaintiff’s left leg was x-rayed, and upon review of the results, Dr. Henderson concluded that the
lump in his leg was representative of an “old healed trauma.” ECF No. 48 at 14-16; PageID.341343; ECF No. 102-1 at 16; PageID.600 (noting the same findings in November 2012). Dr.
Henderson also noted that Plaintiff was walking, sitting, and standing with ease. ECF No. 48 at
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14-16; PageID.341-343. Overall, the medical evidence clearly indicates that Plaintiff was not
suffering from a serious injury that could have worsened due to an hour delay in treatment on
August 16, 2012. As a result, Plaintiff has not satisfied the objective component of his Eighth
Amendment claim.
However, even if he had, Plaintiff has not satisfied the subjective component. To
satisfy this prong, Plaintiff must show that Defendants acted with “a sufficiently culpable state
of mind in denying [him] medical care.” Brown, 207 F.3d at 867 (citing Farmer, 511 U.S. at
834). Aside from his conclusory allegations, Plaintiff has not provided any evidence to satisfy
this prong.
Moreover, the medical evidence of record contradicts Plaintiff’s deliberate
indifference claim by showing that Defendants acted with due diligence and care on August 16,
2012. For example, the August 16th medical records show that Plaintiff was seen at or before
3:19 p.m., and that follow-up appointments were scheduled for him later in the week (which
Plaintiff did, in fact, attend). ECF No. 48 at 8-15; PageID.335-342. Therefore, Plaintiff has not
demonstrated that Defendants denied him medical treatment on August 16, 2012. See Martin v.
Zych, Civil No. 5:09-CV-12724, 2009 WL 2602280, at *2 (E.D. Mich. Aug. 21, 2009) (citing
Parker v. Mich. Dep’t of Corrs., 65 Fed. App’x 922, 923 (6th Cir. 2003) (“Conclusory
allegations by a prisoner of medical indifference on the part of prison officials is insufficient to
state a claim for relief.”)). As such, this claim fails.
b. Defendant Brand
In addition, on August 16, 2012, Plaintiff claims that Defendant Brand failed to
provide Plaintiff with “urgent medical care,” and that he has continued to suffer “needless pain”
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and suffering as a result of her decision not to treat Plaintiff’s leg condition. ECF No. 1 at 8;
PageID.8. Specifically, Plaintiff claims that Defendant Brand misdiagnosed him by stating that
his leg lump was an “old healed trauma.” ECF No. 68 at 12; PageID.472. Plaintiff states that
Defendant Brand was aware of his leg condition and that she should have known that Plaintiff
needed x-rays and pain relief medication immediately on August 16, 2012. ECF No. 68 at 12-13;
PageID.472-473. As a result, Plaintiff alleges that he unnecessarily continued to suffer sharp
pain in his leg when he walked and tried to sleep. ECF No. 68 at 12; PageID.472. Moreover,
Plaintiff claims that this misdiagnosis has resulted in no biopsy of his leg being done, which
means that cancer cannot be ruled out as a possible condition in his leg. ECF No. 68 at 14;
PageID.474.
Again, Plaintiff has not satisfied the objective prong of his Eighth Amendment
claim by showing that his leg pain was sufficiently serious, or that his alleged misdiagnosis
caused him serious harm. The evidence of record shows that Plaintiff’s leg lump was an “old
healed trauma.” ECF No. 48 at 16; PageID.476. This conclusion was made after x-rays were
conducted on Plaintiff’s leg and then evaluated by medical professionals. Id. Differences in
judgment between an inmate and prison medical personnel regarding appropriate medical
diagnoses does not amount to a deliberate indifference claim. Sanderfer, 62 F.3d at 154-55. In
addition, in cases involving such a minor malady, as here (i.e., an old healed leg trauma),
Plaintiff would have had to place medical evidence in the record to show that his condition was
actually serious; however, Plaintiff has not done so. Napier, 238 F.3d at 742 (noting the inmate
must “place verifying medical evidence in the record to establish the detrimental effect of the
delay in medical treatment.”). As a result, Plaintiff has not satisfied the objective prong of his
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Eighth Amendment claim against Defendant Brand.
Moreover, Plaintiff has not demonstrated, under the subjective component, that
Defendant Brand had “a sufficiently culpable state of mind in denying [Plaintiff] medical care.”
Brown, 207 F.3d at 867 (citing Farmer, 511 U.S. at 834). In fact, the evidence shows that
Defendant Brand provided thorough medical care to Plaintiff based on his complaints on August
16, 2012. For example, on August 16th, Plaintiff’s medical records show that he was seen by
Defendant Brand because Plaintiff feared that the pain in his leg was caused by a heart attack or
stroke. ECF No. 57-1 at 8; PageID.404. However, after evaluating Plaintiff and conferring with
Dr. Brostoski, Defendant Brand confirmed that Plaintiff was not suffering from either of those
conditions. ECF No. 48 at 8-10; PageID.335-337; ECF No. 57-1 at 9; PageID.405. Moreover,
Defendant Brand conducted follow-up examinations of Plaintiff and inquired whether Plaintiff
had sustained an injury to his knee recently, to which Plaintiff replied he did not. ECF No. 55-4
at 4; PageID.385 (Declaration by NP Brand). Defendant Brand noted that Plaintiff had a “firm
calcified area proximal to knee,” so she ordered an x-ray of Plaintiff’s left leg and told Plaintiff
she would go over the results of the x-ray with him when the results returned. ECF No. 48 at 810; PageID.335-337; ECF No. 57-1 at 9; PageID.405. Her report indicates that Plaintiff was
relieved by the end of his visit on August 16, 2012. ECF No. 57-1 at 9; PageID.405. Clearly,
Defendant Brand did not deny medical treatment to Plaintiff, or have a culpable state of mind
when she treated Plaintiff on August 16, 2012. Rather, the medical records show that she
appropriately and professionally treated Plaintiff that day: i.e., she conducted a physical exam,
ordered x-rays, conferred with Plaintiff about follow-up appointments, and Plaintiff was
subsequently seen at those follow-up appointments regarding his leg pain. See Santiago v.
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Ringle, 734 F.3d 585, 591 (6th Cir. 2013) (noting even “[w]hen a prison doctor provides
treatment, albeit carelessly or inefficaciously, to a prisoner, he has not displayed a deliberate
indifference to the prisoner’s needs, but merely a degree of incompetence which does not rise to
the level of a constitutional violation.”) (citation omitted). Therefore, Plaintiff has not satisfied
the subjective component of this Eighth Amendment claim.
To the extent that Plaintiff is claiming that he did not agree with Defendant
Brand’s course of medical treatment, this is not enough to state a claim under the Eighth
Amendment. Sanderfer, 62 F.3d at 154-55; Ward, 1996 WL 627724, at *1. This is so even if
the course treatment results in a misdiagnosis that results in considerable suffering. Gabehart,
1997 WL 160322, at *2. Therefore, Plaintiff has not demonstrated that Defendant Brand was
deliberately indifferent to his medical needs on August 16, 2012, and consequently this claim
fails.
c. Defendant Millette
Similarly, on August 27, 2012, Plaintiff claims that Defendant Millette knew of
his leg pain, knew that he had not undergone x-rays or been prescribed pain relief medication for
his leg pain, and knew that Plaintiff had not had a biopsy of his leg done at that point. ECF No.
68 at 15; PageID.475. Plaintiff states that even though he told Defendant Millette that his leg
hurt while walking and sleeping, Defendant Millette improperly noted in his chart that Plaintiff
did not present any difficulty walking, sitting, or standing, and that he had full range of motion of
his leg. ECF No. 68 at 16; PageID.476. Moreover, Plaintiff states that he had been requesting
surgical care from Defendant Millette since July of 2012, but x-rays were not scheduled for him
until August. ECF No. 71 at 2. In addition, Plaintiff believes he should have seen a specialist
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immediately in order to rule out any cancer scares. ECF No. 68 at 16-17; PageID.476-477.
Plaintiff claims that based on Defendant Millette’s improper course of treatment, he still suffers
from a “serious chronic illness” that has inflicted him with “sharp and severe pain, discomfort
and restriction of [his] left femur.” ECF No. 71 at 3; PageID.498.
Regardless of whether Plaintiff satisfied the objective prong of this Eighth
Amendment claim, he has not satisfied the subjective prong. The medical records show that
Defendant Millette did not intentionally deny Plaintiff medical care. See Brown, 207 F.3d at 867
(citing Farmer, 511 U.S. at 834). For instance, the records indicate that Plaintiff was seen by
Defendant Millette for complaints of leg pain during one of Plaintiff’s regularly scheduled
appointments on August 27, 2012. ECF No. 57-1 at 15; PageID.411; ECF No. 55-3 at 6;
PageID.380 (Declaration by PA Millette). At that time, Defendant Millette noted that Plaintiff,
“walked without a limp, but had a bony cyst on his left thigh.” ECF No. 55-3 at 6; PageID.380;
ECF No. 57-1 at 15; PageID.411. Prior to that day, Plaintiff had been requesting use of a cane,
but on August 27, 2012, Defendant Millette informed Plaintiff that a cane was not necessary
based on his examination of Plaintiff’s condition. Id. In addition, Defendant Millette conferred
with Dr. Brostoski about Plaintiff’s leg, and they decided to conduct a biopsy of Plaintiff’s cyst
to rule out any pathological causes of the cyst. Id. Defendant Millette also prescribed him
Motrin for any pain that day (sixty tablets per month on a take-as-needed basis). Id. However,
later on August 27, 2012, in response to Defendant Millette’s consultation request, Dr. Squier
noted that a biopsy was not necessary in Plaintiff’s case since no bone cyst was visible on the xray. Id. Instead, Dr. Squier recommended that Plaintiff be x-rayed again in a month if his
symptoms persisted. Id.
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Given this thorough course of treatment and follow-up, it is clear that Defendant
Millette did not intentionally deny Plaintiff medical care. Rather, Defendant Millette’s treatment
plan was thorough and complete. See Santiago, 734 F.3d at 591 (noting even carelessness or
incompetence in treating a prisoner does not suffice for an Eighth Amendment deliberate
indifference claim). Even though Plaintiff disagrees with the course of his treatment, this is
insufficient to sustain a claim of deliberate indifference. Sanderfer, 62 F.3d at 154-55 (noting it
is well established that 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); Ward, 1996 WL 627724, at *1. Consequently, Plaintiff has failed to show
that he suffered a constitutional violation based on the treatment Defendant provided him on
August 27, 2012. Thus, this claim fails.
B. Civil Conspiracy
Plaintiff’s final claim is that several of the Defendants “agreed to join the plan of
deliberate indifference to plaintiff Morris Weatherspoon[’s] serious medical needs,” which
Plaintiff claims violated his constitutional rights and constituted cruel and unusual punishment
since this conspiracy has caused him “pain, suffering, physical injury, [and] mental and
emotional distress.” ECF No. 1 at 12; PageID.12.
A civil conspiracy under § 1983 is “an agreement between two or more persons to
injure another by unlawful action.” See Hensley v. Gassman, 693 F.3d 681, 695 (6th Cir. 2012)
(quoting Hooks v. Hooks, 771 F.2d 935, 943-44 (6th Cir. 1985)). Based on the discussion in the
previous section, it is clear that Defendants did not engage in any unlawful actions against
Plaintiff. Specifically, Defendants were not deliberately indifferent to Plaintiff’s health needs
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since Plaintiff was seen by dental staff and medical professionals on May 17, August 16, and
August 27, 2012. Accordingly, Defendants did not agree to ignore Plaintiff’s need for medical
attention in May or August of 2012. As a result, this claim fails.
In addition, Plaintiff raised two new claims of conspiracy for the first time in his
responses to Defendant Ebert’s motion for summary judgment (ECF No. 100). The first
conspiracy claim is that “the plaintiff was actually ‘set up’ with a[n] 8 inch knife approximately
30 days on Sunday, September 16, 2012.” ECF No. 102 at 7; PageID.581. The second is that
“there is a link to the attempt[ed] murder and sexual assault conspired by the defendants and
CCF prison officials who are trying to cover up and conceal this attempt murder and plans to
subject plaintiff to a[n] ongoing danger and imminent danger.” ECF No. 103 at 2; PageID.624.
Plaintiff has not provided any evidence to support these conclusory allegations. See Farhat v.
Jopke, 370 F.3d 580, 599 (6th Cir. 2004) (citing Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th
Cir. 1987) (“Claims of [civil] conspiracy must be pled with some specificity: vague and
conclusory allegations that are unsupported by material facts are not sufficient to state a § 1983
claim.”)). For example, Plaintiff has not indicated who is involved in these conspiracies, how
many people were involved, or when these conspiracies occurred. As a result, these two new
claims for civil conspiracy fail as well.
III.
Overall, despite the Court’s obligation to construe handwritten pro se documents
liberally, Plaintiff’s § 1983 fails. Fed. R. Civ. P. 56; see Estelle, 429 U.S. at 106; Haines v.
Kerner, 404 U.S. 519, 520-21 (1972) (stating that pro se complaints are held to less stringent
standards than pleadings drafted by attorneys, and will only be dismissed if the claim
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undoubtedly contains no facts to support its request for relief). Accordingly, Defendants’
Motions for Summary Judgment are appropriate.
In light of the foregoing, this Court concludes that Defendants’ Motions for
Summary Judgment (ECF No. 46, 55, 100) are GRANTED and this case will be dismissed with
prejudice in its entirety. In addition, Defendant Rumstead was not served in this case, and as
such the claims against him are dismissed. ECF No. 21. Moreover, Plaintiff’s “Motion for the
USDC and USMS to Respond to Questions” (ECF No. 98) and “Motion to Strike” (ECF No.
101) are denied as moot. An Order and Judgment consistent with this Opinion will be entered.
SO ORDERED.

__/s/ R. Allan Edgar___________________
R. ALLAN EDGAR
UNITED STATES DISTRICT JUDGE

Date: _2/25/2016___

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