Cromer #211902 v. Gallippo et al

Filing 44

ORDER ADOPTING REPORT AND RECOMMENDATION 41 re 35 ; case closed; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

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

EDWARD JAMES CROMER #211902,
Plaintiff,
v.

Case No. 2:14-CV-191

DENISE GALLIPPO et al.,

HON. GORDON J. QUIST

Defendants.
/

ORDER ADOPTING REPORT AND RECOMMENDATION
Plaintiff Edward James Cromer, an inmate in the Michigan Department of Corrections, filed
an action against Defendants Denise Gallippo and Robert White pursuant to 42 U.S.C. § 1983,
alleging a violation of the Eighth Amendment. (ECF No. 1.) Cromer alleges that Gallippo, a nurse,
refused to give Cromer doses of prescription medication on four occasions. Cromer alleges that
White, a corrections officer, used excessive force when White handcuffed and escorted Cromer from
one area within the prison to another.
On August 29, 2016, Magistrate Judge Greeley issued a Report and Recommendation (R &
R) recommending that the Court grant Defendants’ motion for summary judgment. (ECF No. 41.)
Plaintiff Cromer filed twelve objections. (ECF No. 42.) Upon receiving objections to a report and
recommendation, the district judge “shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1). After conducting a de novo review of the R & R, Cromer’s Objection, and the pertinent
portions of the record, the Court concludes that the R & R should be adopted and the motion for
summary judgment should be granted.

I. DELIBERATE INDIFFERENCE CLAIM
Cromer claims that Gallippo deprived him of medication for his chronic hypertension on four
separate occasions: April 9 and September 11, 2013, and March 12 and March 14, 2014. (ECF No.
1 at PageID.6-10.) Magistrate Judge Greeley recommended summary judgment as to the deliberate
indifference claim because (1) medical records indicate that a nurse other than Defendant Gallippo
gave Cromer his medication on April 9 and September 11, 2013; (2) medical records indicate that
Cromer did in fact receive medication on March 12 and 14, 2014; and (3) the affidavits provided
by Cromer did not even speak to events that occurred on the dates Gallippo is alleged to have
refused to provide medication. (ECF No. 41 at PageID.408.)
Cromer’s first objection is that Magistrate Judge Greeley failed to consider the seriousness
of symptoms of untreated hypertension. To the contrary, the R & R noted that a reasonable trier of
fact could find Cromer’s hypertension to be an “obvious” medical need, which would not require
Cromer to provide verifying medical evidence to establish the detrimental effect of a delay in
medication. (ECF No. 41 at PageID.403-404.)
Cromer’s second, fourth, and eleventh (labeled “12th”) objections all contend that the R &
R erred because Gallippo did not submit an affidavit denying Cromer’s allegations and was not
deposed. These objections are without merit. Where, as here, “the nonmoving party will bear the
burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made
in reliance solely on ‘pleadings, depositions, answers to interrogatories, and admissions on file.’”
Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 2553 (1986) (quoting Rule 56(e)).
Thus, Gallippo was not obliged to present an affidavit or other evidence to defeat Cromer’s claim.
II. EXCESSIVE FORCE CLAIM
Cromer claims that White put handcuffs on “very tight to cut off blood-circulation,” and
grabbed Cromer so forcefully that he left marks and abrasions. (ECF No. 1 at PageID.8.) Magistrate
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Judge Greeley recommended summary judgment because White used force in an attempt to escort
Cromer from one location within the prison to another, and “the use of force to escort a perceived
threat is not ‘totally without penological justification.’” (ECF No. 41 at PageID.405.) The R & R
also notes that, “although not a dispositive factor, [Cromer] failed to show any serious injury;…
never sought medical treatment;… and did not mention any marks, abrasions, or anything else about
the incident” to a physician who visited him the following day. (Id.)
The R & R found that “Defendant White cannot be blamed for putting the handcuffs on too
tight and cutting off circulation” because another officer, Junak, initially put the handcuffs on
Cromer. (ECF No. 41 at PageID.404.) Cromer (labeled “6th”) objects, and claims that White
tightened the handcuffs after Junak put them on. This objection does not undermine Magistrate
Judge Greeley’s conclusion, which relies on the fact that White acted with penological justification
and still did not seriously injure Cromer.
Cromer also objects (labeled “7th”) to the R & R’s finding that three guards – Junak,
Peterson, and White – were escorting Cromer to segregation at the time Officer White allegedly used
excessive force. Cromer seems to claim that only two officers were escorting him, but the number
of officers accompanying White is irrelevant to White’s use of force.
Cromer (labeled “8th”) objects that the R&R failed to explain “Why [sic] the May 9, 2013
incident [was] happening in the first place.” The exact reason for Defendants escorting Cromer from
one place to another is also irrelevant to the issue of whether excessive force was used in doing so.
Cromer’s objection (labeled “9th”) is that the R&R failed to mention a portion of Cromer’s
affidavit which could be taken to explain why Cromer did not seek medical assistance immediately
following his confrontation with Officer White. The affidavit states that Defendant Gallippo is
married to Sergeant Selby, who “reviews the tickets (misconducts) written by Now [sic] GallippoSelby and a Leader [sic] amongst White and Junak.” (ECF No. 40-3 at PageID.393.) While this may
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be true, Magistrate Judge Greeley did not err in his legal conclusion in that it specifically noted
Cromer’s opportunity to complain directly to a physician the day after White allegedly injured him.
Cromer’s third and ninth (labeled “10th”) objections are that the R & R interpreted the
complaint as raising an Eighth Amendment challenge to Officer White’s use of a racial slur. Cromer
contends that his complaint did not raise such a challenge. This objection is moot, as the R & R
rejected the particular challenge.
III. QUALIFIED IMMUNITY
Cromer objects to the finding of qualified immunity and contends that there was “no thing
[sic] objectively reasonable about April 9, 2013 and May 9, 2013.” (ECF No. 42 at PageID.416.)
This objection is non-responsive to Magistrate Judge Greeley’s finding that Defendants are entitled
to qualified immunity because Cromer was unable to show that his constitutional rights were
violated.
IV. CONCLUSION
Therefore,
IT IS HEREBY ORDERED that the Report and Recommendation of the Magistrate
Judge filed August 29, 2016 (ECF No. 41) is ADOPTED.
IT IS FURTHER ORDERED that Plaintiff’s Objections to Report and
Recommendation (ECF No. 42) are OVERRULED.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment (ECF
No. 35) is GRANTED.
A separate judgment shall issue.

Dated: October 4, 2016

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

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