Cousino #310603 v. Borgerding et al
ORDER ADOPTING REPORT AND RECOMMENDATION 63 re 56 : Defendants' Motion 56 for Summary Judgment is GRANTED; case closed; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
CHRISTOPHER D. COUSINO, #310603,
Case No. 2:15-CV-187
WILLIAM BORGERDING, et al.,
HON. GORDON J. QUIST
ORDER ADOPTING REPORT AND RECOMMENDATION
This suit stems from Defendants’ treatment of Plaintiff’s medical condition. Defendant
Corizon is a private company that provides healthcare to inmates within the Michigan
Department of Corrections. Defendant Canlas is a physician employed by Corizon; Defendant
Neri is a physician formerly employed by Corizon. Plaintiff, an inmate in the custody of the
MDOC, filed a suit alleging that (1) Defendants Canlas and Neri were deliberately indifferent to
Plaintiff’s medical needs in violation of the Eight Amendment and (2) Defendant Corizon
violated the Eighth Amendment by having a policy of denying medical treatment to inmates
based on cost.
On October 4, 2016, Magistrate Judge Greeley issued a Report and Recommendation (R
& R) recommending that this Court grant Defendants’ motion for summary judgment. (ECF No.
63.) Plaintiff filed seven objections, which will be discussed in detail below. (ECF No. 64.)
Defendants filed a response.
(ECF No. 67.)
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, Defendant’s Objection,
and the pertinent portions of the record, the Court concludes that the R & R should be adopted
and summary judgment should be granted for Defendants.
In early September 2013, Plaintiff requested treatment of “some kind of itchy fungus.”
(PageID.890.) On September 13, Defendant Neri diagnosed Plaintiff with scabies, ordered him
into medical quarantine, and provided plaintiff with a medicated shampoo. Plaintiff’s symptoms
did not subside, and Defendant Canlas prescribed triamcinolone acetonide cream on September
18. Defendant Canlas followed up with Plaintiff on September 24, noted improvement in his
condition, and authorized his release from medical quarantine. Between November 2013 and
February 2014, Plaintiff complained of renewed symptoms of itches and rashes on several
occasions, and Defendants prescribed various ointments and antibiotics as treatment, eventually
finding a combination of medications that finally cured Plaintiff’s symptoms.
Magistrate Judge Greeley recommended summary judgment for Defendants Canlas and
Neri because Plaintiff failed to show that the Defendants “acted with the requisite culpable state
of mind to satisfy the subjective prong of the deliberately indifferent test.” (ECF No. 63 at
Magistrate Judge Greeley recommended summary judgment for Defendant
Corizon because Plaintiff failed to show any kind of underlying Eighth Amendment violation
which could have been caused by the company’s policy or well-settled custom and Plaintiff
failed to submit any evidence to support his allegations. (Id. at PageID.968.)
Plaintiff objects to Magistrate Judge Greeley’s reliance on Defendants’ declaration to
establish the fact that Plaintiff had an allergic reaction to one of the medications prescribed.
(ECF No. 64 at PageID.975.) Plaintiff claims that his negative reaction to the medication was
due the fact that “Defendant’s [sic] over prescribed the three topical corticosteroids that had a
side effect of Folliculitis which is what Plaintiff kept experiencing.” (Id.) The exact reason for
Plaintiff’s reaction to the medication, whether it was because he was “over-prescribed” or
allergic, is irrelevant to the conclusion that Defendants lacked the subjective intent required for
deliberate indifference claims. This is particularly true given the fact that Plaintiff’s medication
was changed to treat his reaction.
Plaintiff objects to the R & R noting the fact that Plaintiff did not seek medical treatment
between September 24 and November 8, and argues that he did not seek medical attention during
that time “because he was in fear of having to return to administrative segregation.” (ECF No.
64 at PageID.977.) This claim is irrelevant to the R & R’s finding because it has no bearing on
Defendants’ subjective state of mind.
Plaintiff objects to the R & R’s description of the facts surrounding his treatment,
claiming (1) Magistrate Judge Greeley stated that the Plaintiff had been prescribed medication
on February 28, 2014, but Plaintiff had actually been prescribed the medication on March 3, and
(2) Magistrate Judge Greeley stated that Plaintiff’s skin condition cleared up “after several
doses” of effective medication, but Plaintiff only took two doses of the medication. These
objections are irrelevant to Defendants’ subjective intent.
Plaintiff argues that statements by Defendant Neri produce an issue of fact as to the
subjective intent prong of the deliberate indifference test.
(ECF No. 64 at PageID.977.)
Defendant Neri allegedly refused to request Plaintiff’s preferred medication because Neri was
certain that RMO would not approve the treatments. (Id.) But a plaintiff who “received
treatment for his condition must show that his treatment was ‘so woefully inadequate as to
amount to no treatment at all.’” Mitchell v. Hininger, 553 F. App'x 602, 605 (6th Cir.2013)
(quoting Alspaugh v. McConnell, 643 F.3d 162, 169 (6th Cir.2011)). The record indicates that
following this particular visit Defendant Neri prescribed two different medications to treat a
possible secondary infection and reduce itching. (ECF No 58-1 at PageID.823-825.) Such
attention cannot establish deliberate indifference to a condition.
Plaintiff objects to Magistrate Judge Greeley’s finding that his treatment was not “so
woefully inadequate as to amount to no treatment at all,” and simply refers the Court to his brief
in opposition to summary judgment. (ECF NO 64 at PageID.977.) The relevant portion of that
brief merely describes the various treatments used and how they were ineffective. (ECF No. 601 at PageID.880-83.) Unsuccessful treatment alone does not give rise to the level of an Eighth
Amendment violation, even when a physician’s treatment could be considered malpractice.
Border v. Trumbull Cnty. Bd. of Comm’rs, 414 F. App'x 831, 836 (6th Cir. 2011) (citing Perez v.
Oakland Cnty., 466 F.3d 416, 424 (6th Cir.2006)). Defendants continued to treat Plaintiff by
prescribing various medications and treatments until his symptoms subsided.
Plaintiff objects to the R & R’s failure to “address extreme mental and physical
suffering.” (ECF No. 64 at PageID.979.) This fact is irrelevant because the R & R reached its
conclusion while “[a]ssuming, without deciding, Plaintiff’s skin condition is a sufficiently
serious harm.” (ECF No. 63 at PageID.967.)
The R & R noted that Plaintiff failed to produce any evidence that “Corizon had a policy
to prescribe formulary drugs when non-formulary drugs are more effective.” (ECF No. 63 at
PageID.969.) Plaintiff objects, and has attached an exhibit describing the allegedly defective
policy. (ECF No. 66-1.) But Magistrate Judge Greeley’s conclusion (with which this Court
agrees) that Plaintiff did not suffer any underlying Eighth Amendment violation forecloses
liability on the part of Corizon for its policies. See Watkins v. City of Battle Creek, 273 F.3d
682, 687 (6th Cir. 2001)
For the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiff’s objections are OVERRULED
IT IS FURTHER ORDERED that the Report and Recommendation (ECF No. 63) is
IT IS FURTHER ORDERED that Defendants’ motion for summary judgment (ECF
No. 56) is GRANTED.
The case is concluded. A separate judgment will enter.
Dated: December 27, 2016
/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
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