Lamb #188625 v. Wilson et al

Filing 181

ORDER ADOPTING REPORT AND RECOMMENDATION 135 re 130 , 171 , 177 , 150 , 178 , 131 , 127 , 145 , 158 , 123 : Defendant LaPlaunt's Motion for Summary Judgment and Qualified Immunity 123 GRANTED; Plaintiff's Motion for Summary J udgment 127 and Motion for Leave to Amend Civil Complaint 171 are DENIED; Plaintiff's pending motions and objections 130 , 177 , 150 , 178 , 131 , 145 , 158 are DENIED AS MOOT; 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

DAVID K. LAMB,
Plaintiff,

Case No. 2:14-CV-218

v.

Hon. Gordon J. Quist

SUSAN WILSON, et al.,
Defendants.
/

ORDER ADOPTING REPORT AND RECOMMENDATION
Plaintiff, David K. Lamb, a prisoner incarcerated with the Michigan Department of
Corrections, filed a complaint on October 16, 2014, against Defendants Susan Wilson, Nurse
Practitioner Matthew Shullick, Health Unit Manager Melissa LaPlaunt, and Corizon Health Care,
Inc, alleging that they violated his Eighth Amendment rights by ignoring his need for medical care.
Plaintiff alleged that he suffered from spinal nerve damage that had caused him pain for the last
seven years. Plaintiff alleged that Defendants were deliberately indifferent to his medical needs
because he was not seen by a doctor from the MDOC or a local hospital, and Defendants only
prescribed pills.
On February 2, 2016, Magistrate Judge Timothy P. Greeley issued a Report and
Recommendation (ECF No. 68) recommending that the Court grant Defendants Wilson, Shullick,
and Corizon’s motion for summary judgment and deny Plaintiff’s motion for summary judgment.
Magistrate Judge Greeley recommended that Defendants Wilson and Shullick were entitled to
summary judgment because they used their medical judgment to provide care to Plaintiff’s
symptoms, and Plaintiff’s claim amounted to a disagreement over the adequacy of treatment. On

March 7, 2016, the Court entered an Order overruling Plaintiff’s objections and adopting the
February 2, 2016 Report and Recommendation. (ECF No. 70.) As a result, Defendant LaPlaunt was
the only Defendant remaining in the case.
On March 17, 2016, this Court issued an Opinion and Order denying Defendant LaPlaunt’s
motion to dismiss. (ECF No. 71.) The Court concluded that Plaintiff’s allegations in his complaint
sufficed to state a claim against Defendant LaPlaunt and that Defendant LaPlaunt’s arguments were
more appropriate for a properly-supported motion for summary judgment under Rule 56. (Id. at
PageID.536.) Subsequently, Defendant LaPlaunt filed a motion for summary judgment, supported
by her affidavit, and Plaintiff filed a response, to which LaPlaunt filed a reply.
On March 9, 2017, Magistrate Judge Greeley issued a Report and Recommendation (R &
R), in which he recommended that the Court grant LaPlaunt’s motion for summary judgment. The
magistrate judge noted that LaPlaunt had no health care contact with Plaintiff, and her only
involvement with Plaintiff was responding to a grievance that Plaintiff filed. (ECF No. 135 at
PageID.923.) The magistrate judge noted that, while Plaintiff argued that LaPlaunt should have
gone over Defendant Wilson’s head when Defendant Wilson failed to provide proper care, LaPlaunt
said that she did not need to go over Wilson’s head because LaPlaunt did not deem Wilson’s
treatment of Plaintiff substandard. (Id. at PageID.923, 927.) The magistrate judge concluded that
Plaintiff’s claim against Defendant LaPlaunt fails because the Court already dismissed Plaintiff’s
Eighth Amendment claim against Defendant Wilson, and Plaintiff’s claim against LaPlaunt is
premised solely on supervisory liability, which is not a permissible basis for imposing liability under
§ 1983. (Id. at PageID.927.)
Plaintiff has filed an Objection to the R & R. In addition, Plaintiff has filed a motion for
leave to file an amended complaint or to file a new action.
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Plaintiff’s Objection
After conducting a de novo review of the R & R, Plaintiff’s Objection, and the pertinent
portions of the record, the Court concludes that the R & R should be adopted, Defendant LaPlaunt’s
motion for summary judgment granted, and Plaintiff’s motion for summary judgment denied.
In his Objection, Plaintiff raises a number of arguments, but none of them overcomes the
undisputed fact that Defendant LaPlaunt was not a medical provider for Plaintiff. As the magistrate
judge correctly noted, “a supervisor cannot be held liable simply because he or she was charged with
overseeing a subordinate who violated the constitutional rights of another.” Peatross v. City of
Memphis, 818 F.3d 233, 241 (6th Cir. 2016). In other words, “a mere failure to act will not suffice
to establish supervisory liability.” Id. Thus, the fact that Defendant LaPlaunt is a supervisor, or
responded to one of Plaintiff’s grievances, are not a bases for imposing liability. In addition, the
Court has already dismissed Defendants Wilson and Shullick from the case, having found that
Plaintiff failed to show that they violated his Eighth Amendment rights. Finally, the fact that the
Court previously denied Defendant LaPlaunt’s motion to dismiss is irrelevant, as Defendant
LaPlaunt has filed a motion for summary judgment supported by an affidavit.
Motion to Amend
In his motion for leave to file an amended complaint, Plaintiff argues that an MRI performed
in 2016, and Plaintiff’s spinal surgery in 2017, provide additional support for his claims against
Defendants LaPlaunt, Wilson, Shullick, and Corizon. Plaintiff says that this new evidence also
shows that Gerald Covert, RN, Patricia Lamb, RN, and Robert Crompton, MD, who Plaintiff did
not name in his complaint in this action, were deliberately indifferent to Plaintiff’s serious medical
needs, in violation of the Eighth Amendment.

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Pursuant to Federal Rule of Civil Procedure 15(a)(2), a court should “freely give leave [to
amend] when justice so requires.” However, a court is not required to mechanically grant requests
for leave to amend. “A district court may deny a party leave to amend a complaint if there is ‘undue
delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies
by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance
of the amendment, futility of amendment, etc.’” Raiser v. Corp. of President of Church of Jesus
Christ of Latter-Day Saints, 494 F. App’x 506, 508 (6th Cir. 2012) (quoting Foman v. Davis, 371
U.S. 178, 182, 83 S. Ct. 227, 230 (1962)).
Here, Plaintiff’s request is not really a motion to leave to amend, but instead, at least with
regard to the already-dismissed Defendants, is more properly characterized as a motion for relief
from judgment under Rule 60(b)(2) based on newly discovered evidence. Regardless, Plaintiff’s
new evidence does not alter the Court’s prior order dismissing Defendants Wilson, Shullick, and
Corizon. As for Wilson and Shullick, while such evidence could show that they were mistaken in
their judgment about the treatment Plaintiff required, it does not alter the Court’s conclusion that
Plaintiff failed to show that they were deliberately indifferent under the Eighth Amendment.
“Deliberate indifference . . . does not include negligence in diagnosing a medical condition.”
Sanderfer v. Nichols, 62 F.3d 151, 154 (6th Cir. 1995) (citing Estelle v. Gamble, 429 U.S. 97, 106,
97 S. Ct. 285, 292 (1976)). Moreover, Plaintiff’s new evidence does not alter the fact that Defendant
LaPlaunt was merely a supervisor. Finally, as for Plaintiff’s request to file a new action against
unnamed Defendants, Plaintiff does not need this Court’s permission to file a new action, but he may
not do so as part of the instant case.
Therefore,
IT IS HEREBY ORDERED that the Report and Recommendation of the Magistrate Judge
filed (ECF No. 135), is ADOPTED as the Opinion of the Court.
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IT IS FURTHER ORDERED that Defendant LaPlaunt’s Motion for Summary Judgment
and Qualified Immunity (ECF No. 123) is GRANTED, and Plaintiff’s claim against Defendant
LaPlaunt is DISMISSED with prejudice.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary Judgment (ECF No.
127) is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to Amend Civil Complaint
or New Action (ECF No. 171) is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s pending motions and objections (ECF Nos.
130, 131, 145, 150, 158, 177, and 178) are DENIED AS MOOT.
This case is concluded.
A separate judgment will enter.

Dated: May 12, 2017

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

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