Mays #218101 v. Hemmila et al

Filing 197

ORDER ADOPTING REPORT AND RECOMMENDATION 193 re 166 , 165 : MDOC Defendants' Motion for Summary Judgment 166 is GRANTED IN PART AND DENIED IN PART; Defendant Oh's Motion for Summary Judgment 165 is DENIED; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

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

MARCUS D. MAYS,
Plaintiff,

Case No. 2:15-CV-154
HON. GORDON J. QUIST

v.
KEVIN HEMMILA, et al.,
Defendants.
/

ORDER ADOPTING REPORT AND RECOMMENDATION
Plaintiff, a prisoner incarcerated with the Michigan Department of Corrections, filed a
complaint against Defendants alleging claims under 42 U.S.C. § 1983. Plaintiff alleged violations
of his rights under the First and Eighth Amendments. In particular, Plaintiff sued Defendant Dr.
Chung Oh, alleging that on August 23, 2013, Dr. Oh and other medical providers failed to treat
Plaintiff’s serious injuries to his lip, eye, rib, kidney, and back. On September 9, 2016, Dr. Oh filed
a motion for summary judgment, supported by his affidavit, Plaintiff’s medical records, and a
Critical Incident Report. (ECF No. 92.) On May 9, 2017, Magistrate Judge Timothy Greeley issued
a Report and Recommendation recommending that this Court grant Dr. Oh’s motion for summary
judgment. (ECF No. 125.) Plaintiff objected to the May 9, 2017, Report and Recommendation.
In an Order entered on July 13, 2017, the Court adopted the Report and Recommendation in part,
concluding that Plaintiff failed to present sufficient evidence to create a genuine issue of fact as to
his claim against Dr. Oh for denial of medical care on August 28, 2013. (ECF No. 134 at
PageID.1093–94.) However, the Court concluded that Plaintiff’s allegations in his verified
complaint sufficed to create an issue of fact as to whether Dr. Oh was deliberately indifferent to
Plaintiff’s serious medical needs on August 23, 2013. (Id. at PageID.1092–93.)
Defense counsel deposed Plaintiff on April 12, 2018, and, thereafter, Dr. Oh and Defendants
Beesley, Bessner, Casper, Hemmila, Hulkoff, LaPlante, Minerick, Nagele, Niemi, Sohlden,

Waltanen, and Wertanen (MDOC Defendants) filed motions for summary judgment. On February
12, 2019, Magistrate Judge Greeley1 issued a Report and Recommendation recommending that the
Court grant the MDOC Defendants’ motion for summary judgment in part as to Defendants
Minerick and LaPlante and deny it as to the remaining claims and Defendants. (ECF No. 193 at
PageID.1923.) Magistrate Judge Greeley further recommended that the Court deny Defendant Oh’s
motion for summary judgment because “there is still a question of fact as to whether the cuts on
Plaintiff’s face amount to a serious medical condition.” (Id. at PageID.1922, 1923.)
Dr. Oh has filed Objections to the February 12, 2019, Report and Recommendation, arguing
that Plaintiff’s testimony shows that there is no genuine issue of material fact that Plaintiff’s injuries
were not sufficiently serious to support an Eighth Amendment claim.
Pursuant to 28 U.S.C. § 636(b), upon receiving an objection 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.” After conducting a de novo
review of the Report and Recommendation, Dr. Oh’s Objection, and the pertinent portions of the
record, the Court concludes that the R & R should be adopted.
Dr. Oh argues that Plaintiff’s deposition testimony shows that his alleged rib and back
injuries were not serious. (ECF No. 194 at PageID.1926.) Dr. Oh further argues that with regard
to Plaintiff’s alleged lip and eye cuts, Plaintiff’s admissions show that those injuries were not
serious, in spite of Plaintiff’s claim that he was “bleeding profusely.” Dr. Oh points out that
Plaintiff admitted that he was in the exam room for less than five minutes and that by the time he
got back to his cell, the bleeding had stopped. (Id. at PageID.1927.) Thus, Dr. Oh contends,
Plaintiff’s admissions show that his injuries were not sufficiently serious to support an Eighth
Amendment claim.

1

Magistrate Judge Greeley recently retired on March 14, 2019.

2

Initially, to be clear, in its July 13, 2017 Order adopting in part the prior Report and
Recommendation, the Court made clear that a genuine issue of fact remained only as to the alleged
cuts on Plaintiff’s face. (ECF No. 134 at PageID.1093.) The magistrate judge recognized this in
his Report and Recommendation. (ECF No. 193 at PageID.1922.) Thus, the Court has already
concluded that Plaintiff cannot rely on the alleged rib and back injuries to support his Eighth
Amendment claim.
As for the cuts on Plaintiff’s face, Plaintiff testified in his deposition that “[m]y eye was split
open kind of bad and, like I way, I still got a scar on my lip right now.” (ECF No. 165-1 at
PageID.1643.) Plaintiff further testified that he was “bloody as hell,” and that the officers threw his
“bloody T-shirt in the garbage.” (Id. at PageID.1630–31.) Although Dr. Oh presents persuasive
arguments as to why Plaintiff’s cuts were not serious, in the Court’s judgment, the magistrate judge
properly concluded that an issue of fact remains for the jury.
Therefore,
IT IS HEREBY ORDERED that the February 12, 2019, Report and Recommendation (ECF
No. 193) is ADOPTED as the Opinion of this Court. Dr. Oh’s Objection (ECF No. 194) is
OVERRULED.
IT IS FURTHER ORDERED that the MDOC Defendants’ Motion for Summary Judgment
(ECF No. 166) is GRANTED IN PART AND DENIED IN PART. The motion is granted as to
Plaintiff’s claims against Defendants Minerick and LaPlante and denied in all other respects.
IT IS FURTHER ORDERED that Defendant Oh’s Motion for Summary Judgment (ECF
No. 165) is DENIED.

Dated: March 28, 2019

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

3