Robinson #602273 v. Kandulski et al

Filing 113

OPINION AND ORDER MODIFYING AND ADOPTING REPORT AND RECOMMENDATION 92 ; DENYING 100 , 101 , 102 , 103 ; GRANTING 69 and DENYING 31 ; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
ALBERT REGINALD ROBINSON,
Plaintiff,
v.
ADAM KANDULSKI, ET AL.,
Defendants.

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No. 2:16-CV-226
HONORABLE PAUL L. MALONEY

OPINION
I. Background and Procedural Posture
This is a civil rights action brought by a pro se state prisoner under 42 U.S.C. § 1983.
He alleges Defendants Millette, Merling, and Filion conspired to deprive him of medical
care for his enlarged prostate and that other Defendants in the suit denied him the use of the
bathroom except during specific times because of his race.
Defendants Merling, Filion, Ross, Golladay, Cusick, and Benoit filed a motion for
summary judgment based on administrative exhaustion. Defendant Millette filed a motion
for summary judgment on the merits of Plaintiff’s claims. Plaintiff has also filed a motion for
a physical examination and treatment.
United States Magistrate Judge Timothy Greeley issued an R & R recommending that
the Defendants’ motion for summary judgment on the basis of exhaustion be denied as to
all Defendants except Filion, that Defendant Millette’s motion for summary judgment be
granted, and that Plaintiff’s motion for a physical examination and treatment be denied.
Now pending before the Court are five different sets of objections filed by Plaintiff.
(ECF Nos. 100–104.) However, as an initial matter, Plaintiff’s objections to rulings of the

district court—rather than rulings from the magistrate judge—are improper. Federal Rule of
Civil Procedure 72 and Title 28 of the United States Code Section 636 provide a procedural
vehicle for review of a magistrate judge’s rulings—not of the District Court.
Thus, Plaintiff’s objection to the denial of his second motion for reconsideration
(ECF No. 100) is not cognizable on review at this stage; Federal Rule of Civil Procedure
60(b) does not apply. At this point, Plaintiff’s remedy is to seek an appeal to the Sixth Circuit
Court of Appeals—but only after final judgment has been rendered in his case. Second,
Plaintiff’s objections to this Court’s order granting Plaintiff an extension to file his objections
to the R & R (ECF No. 103) do not raise any issues for the Court to review for the same
reasons.
That leaves Plaintiff’s lengthy objections to the R & R (ECF No. 104), as well as his
objections to Judge Greeley’s order denying him counsel, discovery of medical records, and
indigent copying (ECF No. 101) and his objections to the denial of his motion to amend his
complaint to add a defendant (ECF No. 102).
II. Legal Framework
A. Appeals from Non-Dispositive Opinions and Orders
Orders of magistrate judges on non-dispositive matters can be appealed under 28
U.S.C. § 636(b)(1)(A). See also W.D. Mich. LCivR 72.3(a). Legal conclusions are set aside
if they are contrary to law. United States v. Curtis, 237 F.3d 598, 603 (6th Cir. 2001) (citing

United States v. Raddatz, 447 U.S. 667, 673 (1980).

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B. Objections to the R & R
The Court is required to make a de novo determination of those portions of the
R & R to which specific objections have been made, and may accept, reject, or modify any
or all of the Magistrate Judge's findings or recommendations. 28 U.S.C. § 636(b)(1); Fed. R.
Civ. P. 72(b). “[A] general objection to a magistrate's report, which fails to specify the issues
of contention, does not satisfy the requirement that an objection be filed. The objections
must be clear enough to enable the district court to discern those issues that are dispositive
and contentious.” Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995).
III. Discussion
A. Appeals from Non-Dispositive Orders
First, the Court takes up Plaintiff’s appeal (ECF No. 101) from the Magistrate’s order
denying Plaintiff counsel, denying discovery of medical records and indigent copying. (ECF
No. 90.) The Court has reviewed Plaintiff’s appeal and finds it to be without merit. Plaintiff
has no constitutional right to appointment of counsel in this civil matter, and the Court finds
that the Magistrate’s ruling was not contrary to law in any respect. Plaintiff’s appeal from the
Magistrate’s order will be denied.
Second, Plaintiff appeals (ECF No. 102) the Magistrate’s denial of his motion to
amend his complaint to add a defendant. (ECF No. 91.) The Court concludes that the
Magistrate’s conclusion was not contrary to law because Plaintiff brought the motion nearly
one year after initiating the suit, despite having knowledge of all claims that he wished to add
prior to filing. Additionally, he did not file a proposed amended complaint. Therefore,
Plaintiff’s appeal from the Magistrate’s order will be denied.
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B. Objections to the R & R
Plaintiff has filed, by the Court’s count, approximately twenty objections to the R &
R. Although the first seven objections are numbered, the remainder, unfortunately, are not.
Plaintiff first objects that Judge Greeley did not give him time to complete and mail a
reply to Millette’s reply to his motion for summary judgment before issuing the R & R
recommending that Millette’s motion for summary judgment be granted. However, Plaintiff
was not entitled to file a surreply to Millette’s motion for summary judgment under the Local
Civil Rules. If Plaintiff wanted to file a surreply, he was required to first seek the leave of
Court, which he did not do. Accordingly, this objection has no merit.
Plaintiff next objects to Judge Greeley’s conclusion that he did not exhaust his claims
as to Defendant Filion. Plaintiff claims that grievance URF 1608-2938-28L exhausted his
claims. That grievance was rejected at Steps II and III. The Step III response does clearly
state that Plaintiff’s grievance was rejected due to his failure to comply with the procedural
rule that requires timely appeal. Generally, when prison procedural bars prevent full
exhaustion of a grievance, it cannot be used to exhaust a claim in litigation.
Plaintiff does not dispute that his Step III response was rejected as untimely. But he
raises the fact that he was transferred from the facility to another prison while grieving this
issue. The grievance was originally filed on August 8, 2016, and returned to him on August
12, 2016. He kited the grievance coordinator the next day, but was transferred to the Kinross
facility two days later on August 15. Accordingly, he did not receive the Step II appeal form
until August 25. He says that he immediately responded, but that the appeal was not received
until September 6, 2016. Accordingly, he argues that his grievance was improperly rejected
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because the Michigan Department of Corrections policy PD 03.02.130(g)(3) states that a
grievance shall not be deemed untimely if there was a valid reason for delay, including
transfer. Because Plaintiff persuasively argues that his grievance should not have been
rejected pursuant to this Policy Directive, the Court agrees that he has exhausted his claims
against Defendant Filion. The R & R shall be modified to incorporate this ruling.
Third, Plaintiff objects “to page 8 paragraph 1 and 2 because [he] did place verifying
medical evidence on the record . . . .” (ECF No. 104 at PageID.1377.) However, the
paragraphs Plaintiff cites are reciting Defendant Millette’s argument and setting forth the
standard for an Eighth Amendment claim. It’s not clear what exactly about these paragraphs
is objectionable to Plaintiff. The Court will construe the objection more generally—as Plaintiff
argues in the body of the objection that Judge Greeley refused to include information that
another medical provider at the prison, Danielle Paquette told him that “he has a history of
BPH and initial complaints of frequency, hesitency [sic] decreased stream from back in 2014,
he was never treated with medical therapy.” The Court will address this argument below,
because Plaintiff makes several variations of it throughout his objections.
From these allegations, the Court infers that Plaintiff is objecting to page 10 of the R
& R, which summarizes Plaintiff’s allegations that Defendant Millette first diagnosed him
with an enlarged prostate on February 26, 2014, but never informed him of the condition or
treated it. He further asserts that he was never provided with these medical records and
Defendants have continually represented that they do not exist. His evidence consists of a
single report generated by his examination with PA Paquette on October 28, 2015. That
report indicates that Plaintiff had “a history of BPH and initial complaints of frequency,
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hesitency, [sic] decreased stream from back in 2014.” The report also indicated that his last
exam in February of 2015 was “normal.”
Apparently, Plaintiff wants the Court to infer from Paquette’s statement that he was
diagnosed with BPH by Millette in the contested February 26, 2014 examination and never
treated. However, Paquette’s report clearly indicates that the complaints of symptoms that
could be attributable to BPH began in 2014—not that the initial diagnosis was made at that
time. Further, since his prostate appeared “normal” in a prior examination on November
5th, 2013 (conducted at Saginaw Correction Facility) and a later examination conducted on
February 25, 2015 by Dr. Moya, there is no evidence to support Plaintiff’s claim. Even
assuming Plaintiff did have an exam in February of 2014—despite all evidence to the contrary
in the record—there is no indication that it revealed an enlarged prostate. Finally, Plaintiff’s
statement that Paquette told him that that the prior diagnosis “had been deleted” is hearsay
that does not fall into any exception as discussed infra. Accordingly, to the extent that Plaintiff
is challenging findings of fact, the Court finds that Plaintiff has not met his burden by showing
the proposed findings of fact to be clearly erroneous.
Fourth, Plaintiff objects that “Millette and Merling did in fact conspire to sabotage a
post void test” in violation of his First Amendment rights. Again, it appears that the page
numbers have been lost in translation, because there is no reference to the post void test on
page 8. Plaintiff asserts that Merling “refus[ed] to give the catheter time to work . . . .” He
also alleges that Millette “was furious” with him, so “Merling communicated with him to just
sabotage the test by removing the catheter after only a few seconds.”

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Even in the light most favorable to Plaintiff, the evidence does not support his
conspiracy claim. The evidence shows that Millette ordered the exam on June 10, 2014 after
Plaintiff complained of ongoing urinary problems. Defendant Merling provided the test on
June 12, 2014. There is no evidence whatsoever of a common plan or conspiratorial
objective between Millette and Merling to deprive him of medical care, beyond Plaintiff’s
unsupported assertion that Millette was “furious” with Plaintiff. This is insufficient to support
a claim at the summary disposition stage for a claim of civil conspiracy.
Plaintiff’s fifth objection is a continuation of the fourth—he says that his exhibit labeled
6-12-14-A, “prov[es] that [Merling] remove[d] the catheter prematurely because that medical
report documents Plaintiff’s statement that he felt like his bladder had not been completely
emptied by the catheter. The Court does not follow how this statement allegedly proves the
conspiracy to retaliate against Plaintiff. It is not evidence of a civil conspiracy, even in the
light most favorable to Plaintiff.
Plaintiff’s sixth objection is that Danielle Paquette’s statement “Millette diagnosed you
in early 2014 and never treated you with medical therapy” is admissible under Federal Rule
of Evidence 801. Paquette is not an opposing party and is not a coconspirator under
801(d)(2)(E), nor does 801(d)(1) apply because the statement was not made under penalty
of perjury and is not offered to rehabilitate her credibility or rebut a challenge to the accuracy
of the statement. Her alleged out of court statements that Millette diagnosed Plaintiff with
BPH in 2014 and deleted the diagnosis from Plaintiff’s file are being made for the truth of
the matter asserted and are not subject to any exception. They are inadmissible and cannot
support Plaintiff’s arguments at the summary judgment phase.
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Plaintiff’s seventh objection is a reprisal of his second objection—that he could not
exhaust grievance 16087-2938-28J because of his transfer to another prison. The Court has
already indicated that it agrees and will modify the R & R to hold that Plaintiff has exhausted
his claims as to Filion.
Unfortunately, Plaintiff stopped numbering his objections at this point, and the
objections themselves become significantly less coherent.
Plaintiff next objects—again—that Paquette’s statements are admissible under FRE
801. The Court has addressed this argument. Plaintiff then objects that he “is not merely
asserting that Millette’s medical records are incomplete” because he has provided evidence
that the February 26, 2014 records that the records are incomplete. As support, he cites two
exhibits—13B and 12F. Exhibit 13B is the Step II response to grievance 1604-1541-12D2
which states “Review of the electronic medical record fails to locate any record of a digital
rectal exam . . . . Per documentation of MP Millette’s visit with grievant on 2/26/14, grievant
declined the examination on that date.” Exhibit 12F says the same, “I do not find an early
2014 note from [Millette] saying enlarged prostate[,] the exam on 2-26-14 says it was
declined. Sorry[.]”Each of these records indicate that no test was performed. There is no
evidence of a conspiracy to deny Plaintiff access to his medical records.
Plaintiff next objects that he had filed several complaints relating to his urinary
troubles, so that “Millette knew I had BPH because frequent bathroom use and hesitency
are the main symptoms of BPH.” The Court will not impute a diagnosis of BPH based on
reports that Plaintiff had common urinary issues that can be attributed to a plethora of
common ailments. In other words, just because Plaintiff had filed grievances that he
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experienced urinary issues consistent with BPH, it does not follow that the grievances were
sufficient information for Millette to form a diagnosis.
Plaintiff next objects that the R & R indicates that Dr. Moya reported that he requested
Motrin but did not mention any pain during his 2-25-15 exam. This is taken verbatim from
Dr. Moya’s written report—the fact that Plaintiff initiated other grievances approximately two
years prior (included as exhibits 1a through 1f) for pain does not change the contents of Dr.
Moya’s report. Plaintiff also reiterates the above objections and argues that Judge Greeley is
biased. The Court does not find that Plaintiff has supported these arguments.
Finally, Plaintiff argues that Judge Greeley erred by denying his request for a physical
examination and treatment at a facility not associated with the MDOC because he believes
he cannot receive proper treatment under the care of the MDOC. Judge Greeley properly
analyzed Plaintiff’s motion under the standard for injunctive relief and concluded that
Plaintiff had not met his initial burden by showing a strong likelihood of success on the merits
and that irreparable harm was likely to occur. The Magistrate also concluded that the public
interest weighed against granting the injunction because interference of the federal courts
with state prison administrative matters is necessarily disruptive.
Plaintiff objects that he can show a strong medical need and that the prison system
would not be harmed by an injunction. The Court does not find these arguments persuasive.
The Court finds that Glover v. Johnson controls and that Plaintiff has not made the requisite
showing of a violation of a constitutional magnitude as required for injunctive relief. 855 F.2d
277, 286–87 (6th Cir. 19878). Accordingly, the Court will affirm the Magistrate’s order
denying Plaintiff injunctive relief.
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ORDER
For the reasons in the accompanying opinion, IT IS ORDERED that the January 18,
2018 R & R (ECF No. 92) is MODIFIED to hold that Plaintiff exhausted his claims as to
Defendant Filion and ADOPTED as the Opinion of the Court.
IT IS FURTHER ORDERED that Plaintiff’s Objections to the R&R (ECF No. 104)
are SUSTAINED IN PART AND DENIED IN PART.
IT IS FURTHER ORDERED that the Magistrate’s Orders (ECF Nos. 90, 91) are
AFFIRMED and Plaintiff’s Appeals (ECF Nos. 100–103) are DENIED.
IT IS FURTHER ORDERED that Defendant Millette’s motion for summary
judgment (ECF No. 69) is GRANTED. Defendant Millette is DISMISSED from this action
WITH PREJUDICE.
IT IS FURTHER ORDERED that Defendants’ motion for summary judgment on
the basis of exhaustion (ECF No. 31) is DENIED.
Date: March 6, 2018

/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge

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