Hurst v. Ohio Department of Rehabilitation and Correction et al

Filing 107

ORDER AND REPORT AND RECOMMENDATIONS. It is RECOMMENDED that Defendants' Motion for Summary Judgment, Doc. 102 , be GRANTED. Plaintiff's motions to strike,Doc. Nos. 98 , 101 , and 103 are DENIED. Signed by Magistrate Judge Norah McCann King on 8/7/2014. (pes1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MARK EDWARD HURST,
Plaintiff,
vs.

Civil Action 2:11-cv-1090
Judge Smith
Magistrate Judge King

OHIO DEPARTMENT OF REHABILITATION
AND CORRECTION, et al.,
Defendants.
ORDER AND
REPORT AND RECOMMENDATION
Plaintiff Mark Hurst, a former Ohio prison inmate, filed this
action under 42 U.S.C. § 1983, naming as defendants the Ohio
Department of Rehabilitation and Correction (“ODRC”), Gary Mohr, Mona
Parks, Dr. David Weil, Karen Stanforth, Ralph Wilson, and six
unidentified members of the “Collegial Review Committee”, and alleging
that defendants acted with deliberate indifference to plaintiff’s
medical needs in violation of the Eighth Amendment to the United
States Constitution.

Earlier in these proceedings, ODRC was dismissed

as a defendant, Order, Doc. No. 8, p. 1, and summary judgment was
granted to all other defendants on all claims except the claim against
defendant Dr. Weil in his individual capacity.
Doc. No. 52.

Opinion and Order,

Plaintiff thereafter filed the Amended Complaint, Doc.

No. 58, asserting claims against John Gardner and Dr. Andrew Eddy, the
previously unidentified members of the “Collegial Review Committee,”
and Dr. Weil.

This matter is now before the Court on Defendants’ Motion for
Summary Judgment, Doc. No. 96, and on plaintiff’s motions to strike,
Doc. Nos. 98, 101, 103.

The Court will first consider plaintiff’s

motions to strike.
MOTIONS TO STRIKE
Plaintiff has filed two motions to strike Defendants’ Motion for
Summary Judgment.

Doc. Nos. 98, 103.

Plaintiff’s motions challenge

Defendants’ Motion for Summary Judgment as untimely and as violative
of the page limitation established by S.D. Ohio Civ. R. 7.2.
Limitation Upon Length of Memoranda. Memoranda in support
of or in opposition to any motion or application to the
Court should not exceed twenty (20) pages. In all cases in
which memoranda exceed twenty (20) pages, counsel must
include a combined table of contents and a succinct, clear
and accurate summary, not to exceed five (5) pages,
indicating the main sections of the memorandum, the
principal arguments and citations to primary authority made
in each section, as well as the pages on which each section
and any sub-sections may be found.
S.D. Ohio Civ. R. 7.2(a)(3).

Although Rule 7.2(a)(3) expresses a

preference that memoranda not exceed twenty pages, the rule in fact
contemplates the filing of memoranda that exceed twenty pages and
provides a procedure for doing so.

Prior leave of Court is not

expressly required by either Rule 7.2 or the procedures of the
undersigned, so long as the requirements of the rule are satisfied.
See id.

Defendants’ Motion for Summary Judgment substantially

complies with these requirements.

Although the summary of argument

provided by defendants lacks citations to primary authority, the Court
does not find this default so egregious as to warrant the relief
sought by plaintiff’s motion to strike.
Plaintiff also asks that Defendants’ Motion for Summary Judgment

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be ordered stricken as untimely.

Plaintiff specifically argues that

defendants failed to meet the Court’s March 19, 2014 deadline for
filing motions for summary judgment and failed to seek leave to file
their untimely motion.
The Court established March 19, 2014 as the date by which
dispositive motions were to be filed.

Order, Doc. No. 95 (granting

defendants’ third motion for an extension of time).

Defendants’

Motion for Summary Judgment was filed on March 20, 2014, at 12:46
a.m., i.e., 46 minutes beyond that deadline.

Defendants acknowledge

that the filing was late and concede that they did not seek the
permission of this Court for the late filing, Doc. No. 104, but they
represent that their counsel “began the process of electronically
filing Defendant’s [sic] Motion for Summary Judgment at approximately
11:40 P.M. on . . . March 19, 2014.” Id. at pp. 3-4.

According to

defense counsel, the process took more than one hour to complete
because of the length and format of the filing.

Id.

Defendants’ Motion for Summary Judgment was untimely.

However,

the delay in filing was minimal, there is no risk of prejudice to
plaintiff, and defendants’ counsel represents that the delay was
caused by a technical issue with the Court’s electronic filing system.
Under these circumstances, the Court declines to sanction defendants
or to strike Defendants’ Motion for Summary Judgment.
Civ. P. 16(f).

See Fed. R.

Accordingly, plaintiffs’ motions to strike Defendants’

Motion for Summary Judgment, Doc. Nos. 98, 103, are DENIED.
Plaintiff has also filed a motion to strike evidence attached to
Defendants’ Motion for Summary Judgment.
Doc. No. 101.

Motion to Strike Evidence,

Plaintiff challenges defense counsel’s interpretation

3

of the evidence and argues that the medical records attached to
Defendants’ Motion for Summary Judgment are not properly authenticated
because “these records can be authenticated [only] by the person that
wrote and signed the document.”

Id. at p. 2.

Plaintiff’s arguments

are not well taken.
As an initial matter, “[e]xhibits attached to a dispositive
motion are not ‘pleadings’ within the meaning of Fed. R. Civ. P. 7(a)
and are therefore not subject to a motion to strike under Rule 12(f).”
Fox v. Mich. State Police Dep't, 173 F. App'x 372, 375 (6th Cir.
2006).

Second, the Court is satisfied that the medical records

attached to Defendants’ Motion for Summary Judgment have been properly
authenticated.

See Affidavit of Defendant David C. Weil, M.D. (“Dr.

Weil Affidavit”), Doc. No. 96-1, ¶¶ 1, 3, 5; Fed. R. Evid. 901 (“To
satisfy the requirement of authenticating or identifying an item of
evidence, the proponent must produce evidence sufficient to support a
finding that the item is what the proponent claims it is.”).
Plaintiff’s argument to the contrary notwithstanding, even a person
who did not personally produce or sign a document may nevertheless
authenticate the document.

See, e.g., Fed. R. Evid. 901(b)(1), (7),

(9). Finally, plaintiff objects to defendants’ counsel’s
interpretation of the medical evidence.
Evidence, pp. 2-6.

See Motion to Strike

A difference in the interpretation or significance

of evidence is not a basis for striking that evidence. However, the
Court will nevertheless consider plaintiff’s objection to defense
counsel’s arguments in its consideration of Defendants’ Motion for
Summary Judgment. Plaintiff’s Motion to Strike Evidence, Doc. No. 101,
is likewise DENIED.

4

MOTION FOR SUMMARY JUDGMENT
Defendants move for summary judgment.
opposes the motion.

Doc. No. 96. Plaintiff

Plaintiff’s Objection to Defendants’ Motion for

Summary Judgment, Doc. No. 102.

Defendants have not filed a reply.

For the reasons that follow, it is RECOMMENDED that Defendants’ Motion
for Summary Judgment be GRANTED.
1.

Background
Plaintiff alleges that, while he was incarcerated at the Madison

Correctional Institution (“MaCI”), defendants acted under color of
state law and in their official and individual capacities to deny him
medical care in contravention of the Eighth Amendment to the United
States Constitution.

Amended Complaint, ¶ 9.

Plaintiff specifically

alleges that “he was denied necessary surgery and rehabilitation for a
rotator cuff tear.”

Id.

Plaintiff seeks compensatory damages,

judgment declaring that defendants’ failure to provide medical care
was violative of the Eighth Amendment to the United States
Constitution, and an injunction ordering defendants to pay for
corrective surgery and rehabilitation.

Id. at ¶ 10.

The record establishes that, on May 23, 2010, plaintiff submitted
a health services request seeking medical attention for a right
shoulder injury sustained while climbing into his bunk.
Motion for Summary Judgment, Exhibit A-1.

Defendants’

Plaintiff complained of a

torn rotator cuff and severe pain when raising or reaching with his
right arm.

Id.

The ODRC Nursing Assessment/Protocol (“Nurses Sick

Call”) examined plaintiff the following day.

Id. at Exhibit A-2.

Plaintiff guarded his right arm, had decreased range of motion and

5

strength in his right arm, and was unable to push up.
was prescribed ibuprofen.

Id.

Plaintiff

Id.

Plaintiff submitted a second health services request on June 2,
2010, requesting x-rays of the shoulder.

Id. at Exhibit A-3, p. 1.

Plaintiff was treated in Nurses Sick Call on June 3, 2010, and was
found to have full range of motion in his extremities and pain in his
right shoulder.

Id. at Exhibit A-4.

Doctor’s Sick Call.

Plaintiff was referred to

Id.

Defendant Dr. David Weil, a doctor employed by ODRC, saw
plaintiff on June 4, 2010.

Dr. Weil Affidavit, ¶ 10; Defendants’

Motion for Summary Judgment, Exhibit A-3, p. 2.

On initial

examination, Dr. Weil determined that plaintiff held his right
shoulder in a flexed and adducted position, had decreased range of
motion in his right shoulder secondary to pain, and normal strength
secondary to pain on abduction.

Dr. Weil Affidavit, ¶ 10; Defendants’

Motion for Summary Judgment, Exhibit A-3, p. 2.
rotator cuff tear.

Dr. Weil suspected a

Dr. Weil Affidavit, ¶ 10; Defendants’ Motion for

Summary Judgment, Exhibit A-3, p. 2.

Dr. Weil prescribed ibuprofen,

800 mg, for a two month period and a shoulder sling; he also ordered
an orthopedic consultation and x-rays.

Dr. Weil Affidavit, ¶ 11;

Defendants’ Motion for Summary Judgment, Exhibit A-5, p. 2.

According

to Dr. Weil, his examination of plaintiff “did not reveal anything
that would warrant an immediate or accelerated consult with an
orthopedist;” he anticipated the x-rays ordered by him would “be done
promptly within a day or two.”

Dr. Weil Affidavit, ¶ 11.

6

Plaintiff submitted a third health services request on June 25,
2010, and was seen in Nurses Sick Call on June 26, 2010.
Motion for Summary Judgment, Exhibits A-6, A-7.

Defendants’

Plaintiff exhibited

decreased range of motion and complained of right shoulder pain.
at Exhibit A-7.

Id.

It was noted that the “order for ortho [was] awaiting

scheduler” and plaintiff was provided a 30 day bottom bunk
restriction.

Id.

Plaintiff was again seen in Nurses Sick Call on

July 25, 2010, and the bottom bunk restriction was continued for
another 30 days.

Id. at Exhibits A-8, A-9.

Plaintiff underwent an orthopedic consultation at The Ohio State
University Medical Center on August 5, 2010.
2; A-5.

Id. at Exhibits A-3, p.

X-rays of the right shoulder revealed no bone, joint or soft

tissue abnormalities.

Id. at Exhibit A-10.

Upon examination,

plaintiff demonstrated full passive range of motion, no AC tenderness
to palpation, no crossover sign or signs of weakness and impingement.
Id. at Exhibit A-5.

The orthopedist rendered a provisional diagnosis

of “rotator cuff tear/tendinitis” and recommended an MRI.

Id.

On August 10, 2010, Dr. Weil treated plaintiff for a skin lesion
that had “disappeared.”

Id. at Exhibit A-12.

Dr. Weil continued

plaintiff’s bottom bunk restriction for four months and his records
also include the notation “MRI date set?” Id.
Plaintiff’s prescription for ibuprofen was renewed on August 24,
2010.

Id. at Exhibit A-13.
Plaintiff underwent an MRI on September 23, 2010.

A-14.

Id. at Exhibit

That MRI was read as revealing a complete tear of the rotator

cuff with retraction of the supraspinatus muscle and tendon, resultant

7

elevation of the humeral head, and abnormal signal in the humeral head
likely related to a contusion with resultant edema.
occult fracture was seen.

Id.

No definite

Id.

Plaintiff submitted a health services request on September 27,
2010, and was seen in Nurses Sick Call on September 29, 2010.
Exhibits A-15, A-16.

Id. at

The nurse ordered plaintiff to Doctor’s Sick

Call.
Dr. Weil treated plaintiff on October 14, 2010, to review the MRI
and follow-up for his recent treatment for kidney stones.
Exhibit A-17.

Id. at

Dr. Weil’s notes indicate that plaintiff “would take

surgery if offered.”

Id.

orthopedic consultation.

Dr. Weil referred plaintiff for a follow-up
Id.

Plaintiff submitted a health services request on November 8,
2010, and was seen in Nurses Sick Call on November 9, 2010.
Exhibits A-18, A-19.

Plaintiff rated his pain at 6 or 7 out of 10; he

had limited range of motion and weakness in the right arm.
Exhibits A-19.

Id. at

Id. at

The nursing care plan was to refer plaintiff to an

advanced health provider immediately if there were severe, disabling
pain or instability of a joint.

Id.

Plaintiff was seen by an orthopedic consultant on December 5,
2010.

Id. at Exhibit A-17.

repair.”

The orthopedist noted, “To OR for

Id.

On December 10, 2010, Certified Nurse Practitioner Holcomb
ordered that shoulder surgery be scheduled.

Id. at Exhibit A-21.

Ms.

Holcomb examined plaintiff on December 20, 2010, and noted decreased
range of motion in the right shoulder and no visible edema.

8

Id.

Plaintiff’s prescription for ibuprofen was renewed on December
20, 2010, and February 7, 2011.

Id. at Exhibits A-23, A-24.

A Permedion precertification request form was completed on
February 16, 2011.

Id. at Exhibit A-26.

plaintiff “NEEDS Arthroscopy RTC repair.”

The form indicates that
Id.

Dr. Weil cancelled surgery on March 4, 2011, as “not immediately
medically necessary” and ordered a doctor’s sick call “if pain
persists.”

Id. at Exhibit A-28.

A form titled “Verification of

Cancellation” indicates that no surgery date had been scheduled.
Plaintiff was given a long-term bottom bunk restriction.

Id.

See id.

at Exhibit A-30.
Plaintiff’s ibuprofen prescription was renewed on March 7, May
12, June 13, July 14, August 26, September 26, and October 26, 2011.
Id. at Exhibits A-28, A-31, A-32, A-33, A-37.
After his released from prison, plaintiff was treated on November
16, 2011 by David M. Jackson, M.D., who suggested treatment as
follows:
Advised the patient that his rotator cuff tear may not be
repairable this long post injury - a concern is fixed
contracture of the supraspinatus with muscle wasting that
prevents pulling the rotator cuff back to its insertion for
repair.
Rotator cuff repairs are more predictably
repairable within a few months of injury.
It has been so
long since she [sic] had an MRI I recommended another MRI
to further evaluate to see if surgery for attempted rotator
cuff repair is indicated.
I suspect repeat MRI will show
large retracted tear now showing supraspinatus atrophy I
would
recommend
a
second
opinion
from
a
shoulder
subspecialist as to whether attempted surgical repair is
indicated. Today with his current right shoulder condition
I would recommend avoiding work that requires lifting or
reaching at or above shoulder height.

9

Doc. No. 37, Appendix 7, pp. 2-5.

Plaintiff did not undergo the

repeat MRI suggested by Dr. Jackson because “he could not afford it.”
Id.
2.

Standard
The standard for summary judgment is well established.

This

standard is found in Rule 56 of the Federal Rules of Civil Procedure,
which provides in pertinent part: “The court shall grant summary
judgment if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter
of law.”

Fed. R. Civ. P. 56(a).

Pursuant to Rule 56(a), summary

judgment is appropriate if “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of
law.”

Id.

In making this determination, the evidence “must be viewed

in the light most favorable” to the non-moving party.
Kress & Co., 398 U.S. 144, 157 (1970).

Adickes v. S.H.

Summary judgment will not lie

if the dispute about a material fact is genuine, “that is, if the
evidence is such that a reasonable jury could return a verdict for the
non-moving party.”
(1986).

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

However, summary judgment is appropriate if the opposing

party “fails to make a showing sufficient to establish the existence
of an element essential to that party’s case, and on which that party
will bear the burden of proof at trial.”
477 U.S. 317, 322 (1986).

Celotex Corp. v. Catrett,

The “mere existence of a scintilla of

evidence in support of the [opposing party’s] position will be
insufficient; there must be evidence on which the jury could
reasonably find for the [opposing party].”

10

Anderson, 477 U.S. at 252.

The “party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis for its
motion, and identifying those portions” of the record which
demonstrate “the absence of a genuine issue of material fact.”
Celotex Corp., 477 U.S. at 323.

The burden then shifts to the

nonmoving party who “must set forth specific facts showing that there
is a genuine issue for trial.”
Fed. R. Civ. P. 56(e)).

Anderson, 477 U.S. at 250 (quoting

“Once the moving party has proved that no

material facts exist, the non-moving party must do more than raise a
metaphysical or conjectural doubt about issues requiring resolution at
trial.”

Agristor Fin. Corp. v. Van Sickle, 967 F.2d 233, 236 (6th

Cir. 1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986)).
3.

Discussion
Plaintiff asserts claims against Dr. David Weil, Dr. Andrew Eddy,

and John Gardner in their official and individual capacities pursuant
to 42 U.S.C. § 1983.

Section 1983 provides in relevant part:

Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights,
privileges,
or
immunities
secured
by
the
Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper
proceeding for redress . . . .
42 U.S.C. § 1983.

A prima facie case under § 1983 requires evidence

of (1) conduct by an individual acting under color of state law, and
(2) the deprivation of a right secured by the Constitution or laws of
the United States.

Day v. Wayne Cnty. Bd. of Auditors, 749 F.2d 1199,

11

1202 (6th Cir. 1984) (citing Parratt v. Taylor, 451 U.S. 527, 535
(1981)).

Section 1983 merely provides a vehicle for enforcing

individual rights found elsewhere and does not itself establish any
substantive rights.

See Gonzaga Univ. v. Doe, 536 U.S. 273, 285

(2002).
In the case presently before the Court, plaintiff alleges that
defendants acted with deliberate indifference to his medical needs in
violation of the Eighth Amendment to the United States Constitution.
a.

Official Capacity Claims

Plaintiff alleges that defendants are liable in their official
capacities for denying him medical care in contravention of the Eighth
Amendment to the United States Constitution.

Amended Complaint, ¶ 9.

Official capacity suits “‘generally represent only another way of
pleading an action against an entity of which an officer is an
agent.’”

Kentucky v. Graham, 473 U.S. 159, 165–66 (1985) (quoting

Monell v. Dep't of Social Servs., 436 U.S. 658, 690 n.55 (1978)).
“[A]n official-capacity suit is, in all respects other than name, to
be treated as a suit against the entity.”
Holt, 469 U.S. 464, 471-72 (1985)).
instant action is the ODRC.

Id. (citing Brandon v.

The government entity in the

This state agency is immune from suit in

this Court by virtue of the Eleventh Amendment to the United States
Constitution.

See Beil v. Lake Erie Corr. Records Dept., 282 F. App’x

363 (6th Cir. 2008).

See also Regents of Univ. of Cal. v. Doe, 519

U.S. 425, 429 (1997) (Eleventh Amendment sovereign immunity applies
not only to the states themselves but also to “state agents and
instrumentalities”).

12

The Eleventh Amendment does not, however, preclude official
capacity claims for certain forms of prospective injunctive relief.
Ex parte Young, 209 U.S. 123 (1908). The injunctive relief sought by
plaintiff, however, does not fall within that category of relief
permitted by the Eleventh Amendment.
Plaintiff seeks monetary damages, a judgment declaring that
defendants’ failure to provide medical care was violative of the
Eighth Amendment to the United States Constitution, and an injunction
ordering defendants to pay for plaintiff’s surgery and rehabilitation.
Amended Complaint, ¶ 10.

The declaratory judgment sought by plaintiff

would be retroactive in nature, see Sandy Frank Prods. LLC v. Mich.
Film Office, No. 11-10933, 2012 WL 12752, at *4 (E.D. Mich. Jan 4,
2012), and the injunction requested by plaintiff is for monetary
relief.

See Ernst v. Rising, 427, F.3d 351, 368 (6th Cir. 2005)

(citing Barton v. Summers, 293 F.3d 944, 949 (6th Cir. 2002)).
Because plaintiff seeks only retroactive relief and monetary damages,
defendants are entitled to Eleventh Amendment immunity on plaintiff’s
official capacity claims.
It is therefore RECOMMENDED that Defendants’ Motion for Summary
Judgment be GRANTED with respect to plaintiff’s claims under § 1983
against all remaining defendants in their official capacity.
b.

Individual Capacity Claims

Plaintiff also alleges that defendants are liable in their
individual capacities for denying him medical care in contravention of
the Eighth Amendment to the United States Constitution.

13

Amended

Complaint, ¶ 9.

Plaintiff specifically alleges that “he was denied

necessary surgery and rehabilitation for a rotator cuff tear[.]”

Id.

The Eighth Amendment to the United States Constitution prohibits
cruel and unusual punishment.

To prevail on his claims against each

defendant, plaintiff must prove that the defendant acted with
“deliberate indifference to [his] serious medical needs.”
Gamble, 429 U.S. 97, 103-04 (1976).

Estelle v.

This standard includes both an

objective and a subjective component.

The objective component

requires a plaintiff to show the existence of a “sufficiently serious”
medical need.

Farmer v. Brennan, 511 U.S. 825, 834 (1994).

The

subjective component requires a plaintiff to “allege facts which, if
true, would show that the official being sued subjectively perceived
facts from which to infer substantial risk to the prisoner, that he
did in fact draw the inference, and that he then disregarded that
risk.”

Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001) (citing

Farmer, 511 U.S. at 837).

However, “a plaintiff need not show that

the official acted ‘for the very purpose of causing harm or with
knowledge that harm will result.’”
835).

Id. (quoting Farmer, 511 U.S. at

“Instead, ‘deliberate indifference to a substantial risk of

serious harm to a prisoner is the equivalent of recklessly
disregarding that risk.’”

Id. (quoting Farmer, 511 U.S. at 836).

“A serious medical need is ‘one that has been diagnosed by a
physician as mandating treatment or one that is so obvious that even a
lay person would easily recognize the necessity for a doctor's
attention.’”

McCarthy v. Place, 313 F. App’x 810, 814 (6th Cir. 2008)

(quoting Harrison v. Ash, 539 F.3d 510, 518 (6th Cir. 2008)).

14

Although defendants argue that plaintiff did not suffer a serious
medical need, they concede that plaintiff suffered from a rotator cuff
tear.

Defendants’ Motion for Summary Judgment, p. 27.

Courts have

found that a torn rotator cuff presents a serious medical need.

See

Kostyo v. Harvey, No. 1:09CV2509, 2010 WL 3522449, at *8 (N.D. Ohio
Sept. 8, 2010) (“Severe shoulder pain, including a possible rotator
cuff tear, may qualify as a serious medical need.”); Palmer v. Randle,
No. 10-cv-718, 2011 WL 2470062, at *4 (S.D. Ill. June 20, 2011) (“A
torn rotator cuff . . . is the sort of chronic, painful condition that
a layperson would find objectively serious.”); Thomas v. Neves, No.
2:07-CV-01249, 2010 WL 1644789, at *3 (E.D. Cal. Apr. 21, 2010)
(concluding that a rotator cuff tear is a serious medical need).

This

Court concludes that a reasonable jury could find that plaintiff
suffered a serious medical need.
As discussed supra, the subjective component of plaintiff’s
Eighth Amendment claim requires that the facts alleged by the
plaintiff, if true, show that the official “subjectively perceived
facts from which to infer substantial risk to the prisoner, that he
did in fact draw the inference, and that he then disregarded that
risk.”

Comstock, 273 F.3d at 703 (citing Farmer, 511 U.S. at 837).

Although officials may not deliberately disregard a medical need,
“[m]edical malpractice does not become a constitutional violation
merely because the victim is a prisoner.”

Estelle, 429 U.S. at 106.

Inadvertent failure or negligence in providing medical care does not
rise to the level of a constitutional deprivation, as deliberate

15

indifference “describes a state of mind more blameworthy than
negligence.”

Farmer, 511 U.S. at 835.

Nevertheless, a plaintiff is not required to show that the
official acted “for the very purpose of causing harm or with knowledge
that harm will result.”

Id.

Liability can be found if a prison

official “knows that inmates face a substantial risk of serious harm
and disregards that risk by failing to take reasonable measures to
abate it.”

Id. at 847.

In the case presently before the Court, the evidence is
insufficient to find that defendants acted with the requisite mens
rea.

Plaintiff allegedly injured his right shoulder in May 2010 while

climbing into his bunk.
Exhibit A-1.

Defendants’ Motion for Summary Judgment,

After two visits to Nurses Sick Call, plaintiff treated

with Dr. Weil on June 4, 2010.

Dr. Weil Affidavit, ¶ 10; Defendants’

Motion for Summary Judgment, Exhibit A-3, p. 2.

Dr. Weil noted that

plaintiff had shoulder pain and suggested that plaintiff may have
suffered a rotator cuff tear.

Dr. Weil Affidavit, ¶ 10; Defendants’

Motion for Summary Judgment, Exhibit A-3, p. 2.

Dr. Weil prescribed

ibuprofen, 800 mg, for a two month period and a shoulder sling; he
also ordered an orthopedic consultation, x-rays, and a bottom bunk
restriction.

Dr. Weil Affidavit, ¶ 11; Defendants’ Motion for Summary

Judgment, Exhibit A-5, p. 2; Exhibit A-12.

On October 14, 2010, Dr.

Weil reviewed with plaintiff the results of the September 23, 2010 MRI
of the right shoulder.
Exhibit A-17.
if offered.”

Defendants’ Motion for Summary Judgment,

Dr. Weil also noted that plaintiff “would take surgery
Id.

Dr. Weil referred plaintiff for a follow-up

16

orthopedic consultation.

Id.

Plaintiff treated with the consultative

orthopedist on December 5, 2010; the doctor’s treatment notes
indicate: “To OR for repair.”

Defendants’ Motion for Summary

Judgment, Exhibit A-17.
Dr. Weil cancelled plaintiff’s surgery on March 4, 2011, as “not
immediately medically necessary” and ordered doctor’s sick call “if
pain persists.”

Id. at Exhibit A-28.

Dr. Weil explains the

cancellation of plaintiff’s surgery as follows:
On March 4, 2011 I entered my physician’s order stating
“cancel surgery, DSC [doctors sick call] if pain persists.”
It must be emphasized that no date for surgery ever
existed.
The order for “cancellation” simply stopped the
scheduling process which might have ended up with a surgery
date. I did this after I was notified that surgery had yet
to be scheduled. I realized at that time that it had been
almost ten months since his injury and that the window for
optimal surgical repair was almost certainly passed. . . .
This decision was based upon the medical literature as it
pertains to the unsettled debate regarding the timing of
and the appropriate candidates for operative rotator cuff
repair. Specifically, one will see reference to the age of
the patient and the age of the injury.
The closer a
patient is to sixty-years of age and an injury greater than
six-weeks old tends to predict much poorer surgical
outcomes.
Rotator cuff tears can be managed without
surgical intervention.
In addition, I offered doctor’s
sick call if pain persists inviting Mr. Hurst to follow-up
if his shoulder continued to bother him.
Dr. Weil Affidavit, ¶ 39.
Although there is evidence that Dr. Weil was aware of plaintiff’s
rotator cuff tear, there is no evidence to suggest that Dr. Weil
subjectively perceived facts from which to draw an inference that
cancellation of surgery (or, as defendants argue, cancellation of the
process of scheduling surgery) created a substantial risk of harm to
plaintiff.

See Dr. Weil Affidavit, ¶ 39 (“The closer a patient is to

sixty-years of age and an injury greater than six-weeks old tends to

17

predict much poorer surgical outcomes.”); Doc. No. 37, Appendix 7, pp.
2-5 (“Rotator cuff repairs are more predictably repairable within a
few months of injury.”); Affidavit of Defendant Andrew Eddy, M.D.,
Doc. No. 96-39 (“Dr. Eddy Affidavit”), ¶ 26 (“Dr. Weil found it to be
not medically necessary to continue to attempt to have this surgery
scheduled and then completed.

Dr. Weil based this decision on current

medical evidence regarding rotator cuff repairs and I concurred with
him.”).

There is also no evidence that surgical repair is the only

acceptable method of treating a supraspinatus tear.

To the contrary,

both Dr. Eddy and Dr. Weil aver that non-surgical treatment is
possible and appropriate.

Dr. Eddy Affidavit, ¶ 27 (“Current medical

evidence indicates nonsurgical management is appropriate in isolated
supraspinatus tears that occur in older individuals and those that
occur with minimal trauma, as in this case.

Mr. Hurst age 57 at the

time of his injury, tore his rotator cuff with the simple motion of
pulling himself up into bunk bed.”); Dr. Weil Affidavit, ¶ 39
(“Rotator cuff tears can be managed without surgical intervention.”).
Moreover, plaintiff has not presented any evidence that his medical
care was inadequate, let alone “so woefully inadequate as to amount to
no treatment at all.”
(6th Cir. 1976).

See Westlake v. Lucas, 537 F.2d 857, 860 n.5

See also McCarthy v. Maitland Place, D.D.S., 313 F.

App’x 810, 814 (6th Cir. 2008).

Accordingly, plaintiff cannot

satisfy the subjective component with respect to Dr. Weil.

Although

plaintiff may disagree with his course of medical treatment, he has
failed to articulate facts or produce evidence to suggest that Dr.
Weil acted with deliberate indifference.

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Similarly, plaintiff cannot satisfy the subjective component with
respect to Dr. Eddy and John Gardner.

Dr. Eddy and John Gardner

allegedly participated in the decision to cancel plaintiff’s surgery
in March 2011.

See Amended Complaint, ¶ 11.

Neither Dr. Eddy nor

John Gardner treated plaintiff and there is no evidence to suggest
that either defendant was aware of plaintiff’s torn rotator cuff prior
to March 2011.

As discussed supra, there is also no evidence that

cancellation of surgery in March 2011 (or, as defendants argue,
cancellation of the process of scheduling surgery) created a
substantial risk of harm to plaintiff.

Accordingly, plaintiff cannot

satisfy the subjective component with respect to Dr. Eddy and John
Gardner.
The remaining defendants are therefore entitled to summary
judgment on plaintiff’s claims against them in their individual
capacity.
Plaintiff has not raised a genuine issue of material fact and
defendants are entitled to judgment as a matter of law on all of
plaintiff’s claims.

It is therefore RECOMMENDED that Defendants’

Motion for Summary Judgment, Doc. No. 96, be GRANTED.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

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Response to objections

28

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that failure to object to
the Report and Recommendation will result in a waiver of the right to
de novo review by the District Judge and of the right to appeal the
decision of the District Court adopting the Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of
Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).

August 7, 2014

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

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