Hamer v. Griffs

1

SHADNEY HAMER, Plaintiff, v. CAROL GRIFFS, EVONNE McGINTY, DR. HERRO, ANZHELIKA KOOTNER, CORIZON, J. RUBLEY, C UNIT STAFF, JOHN DOE, and JANE DOE, Defendants.

No. 4:22-cv-12106

United States District Court, E.D. Michigan, Southern Division

April 28, 2023

F. Kay Behm District Judge

REPORT AND RECOMMENDATION ^[1] TO GRANT DEFENDANT DR. HERRO'S MOTION TO DISMISS AND ALTERNATIVELY, MOTION FOR SUMMARY JUDGMENT (ECF No 35) ^[2]

KIMBERLY G. ALTMAN UNITED STATES MAGISTRATE JUDGE

I. Introduction

This is a prisoner civil rights case under 42 U.S.C. § 1983. Plaintiff Shadney Hamer (Hamer), proceeding pro se, is suing defendants Carol Griffes (Griffes),^[3]Evonne McGinty (McGinty), Dr. Herro (Herro), Anzhelika Kootner (Kootner), J. Rubley (Rubley), Corizon,^[4]C Unit Staff,^[5]John Doe, and Jane Doe, alleging violations of his First and Eighth Amendment rights, specifically that he was denied access to medical attention and that he was retaliated against for filing grievances. See ECF No. 1. Under 28 U.S.C. § 636(b)(1), all pretrial matters were referred to the undersigned. (ECF No. 43).

Before the Court is Herro's motion to dismiss and, alternatively, for summary judgment. (ECF No. 35). This motion is fully briefed and ready for consideration. (ECF Nos. 40, 45, 52, 63). For the reasons stated below, it is RECOMMENDED that Herro's motion be GRANTED and that he be DISMISSED as a defendant. If this recommendation is adopted along with the recommendations contained in the undersigned's prior Reports and Recommendations (R&Rs), (ECF Nos. 64, 65), then Hamer may proceed with his claims against Wellpath and McGinty.

II. Background

A. Amended Complaint

The relevant facts from the amended complaint were summarized in the April 11, 2023 R&R as follows:

Hamer is an inmate in MDOC custody. During the relevant events, he was incarcerated at Charles Egeler Reception (RGC). (ECF No. 25, PageID.154). Hamer was housed in a medical unit (C Unit) because he suffers from allergies that could cause anaphylaxis. (Id.).

Kootner and Rubley were members of the RGC medical staff. (Id., PageID.153-154). John Doe and Jane Doe were also RGC medical staff members, but Hamer does not know their names. (Id., PageID.154). Griffes was a state administrative manager and her job duties included arranging out-of-facility medical care for RGC inmates. (Id.). McGinty was a health unit manager. (Id., PageID.155). Herro was a doctor assigned to C Unit, and Corizon/Wellpath is a private entity contracted by the MDOC to provide medical services to inmates. (Id., PageID.154).

On April 12, 2022, Hamer injured his left ankle while playing basketball. (Id., PageID.155). He immediately returned to the C Unit and was examined by Kootner, a registered nurse. (Id.). Kootner gave Hamer a 24-hour ice detail and advised him to stay off his ankle until the swelling and pain subsided and also told him to ice his ankle for 15 to 20 minutes as soon as possible. (Id.). Hamer requested pain killers, crutches, a wheelchair, and/or an ACE bandage, but these requests were all denied. (Id.).

The next morning, on April 13, 2022, Hamer asked John Doe for an extension of his ice detail. (Id.). McGinty denied Hamer's request for an extension. (Id.). Hamer then sent a health care kite explaining that he had “sprained, strained, or torn [his] [A]chilles.” (Id., PageID.156). He also explained that he had been denied treatment including over-the-counter pain killers and/or anti-inflammatories and ice. (Id.).

A day later, on April 14, 2022, Hamer filed a Step I grievance against “McGinty for denying him ice for the gross swelling on his ankle.” (Id., PageID.156). Then, on April 15, 2022, Hamer asked Rubley, a registered nurse, to examine his ankle, but she refused, telling him that he needed to wait for McGinty to arrive. (Id.). Later that day, Hamer filed another Step I grievance against McGinty. (Id., PageID.157). A few hours later, McGinty issued Hamer an “out of place ticket” for asking Rubley to examine his ankle. (Id., PageID.158).

The following day, on April 16, 2022, Kootner and Rubley examined Hamer's ankle and issued him a wheelchair to be used for two days. (Id.). The same day, Hamer wrote another kite asking to see a doctor and receive an MRI and/or x-ray. (Id., PageID.158-159). He also filed another Step I grievance against McGinty for denying him medical services. (Id., PageID.159). In this grievance, Hamer explained that a nurse, whose name he did not know, told him that McGinty had ordered the medical staff to refuse Hamer medical treatment for his ankle. (Id.). Hamer said that he felt retaliated against. (Id.).

On April 17, 2022, Melissa Bowman (Bowman) prescribed Hamer both ibuprofen and Tylenol to help reduce pain and swelling. (Id.). Bowman never spoke to nor examined Hamer. (Id.). Later that day, Kootner sent Hamer a kite instructing him on how to take the newly prescribed medications. (Id., PageID.159-160).

April 19, 2022, the day Hamer had been scheduled to see a doctor, came and went without Hamer being seen. (Id., PageID.160). A few days later, on April 22, 2022, Hamer wrote a healthcare request explaining that he never saw a doctor on April 19, 2022, even though he had previously been told that he would see one on that day. (Id.).

On April 26, 2022, two weeks after Hamer injured his ankle, he was examined by Herro. (Id.). Hamer requested an x-ray and Herro said that one would be done over the course of the next couple of days. (Id., PageID.160-161). Herro also asked Hamer to sign off on a grievance that he had filed against McGinty. (Id., PageID.161). Hamer did so because McGinty threatened to retaliate against him if he refused to sign. (Id.). Hamer later sent a kite to Griffes about this incident. (Id.).

On May 5, 2022, Hamer sent another kite explaining that his ankle was still swollen and painful. (Id.). Hamer also still had not had either an MRI or x-ray done. (Id.). Finally, sometime between May 19 and 21, 2022, Hamer was transferred to the Thumb Correctional Facility (TCF).

(ECF No. 65, PageID.662-665 (internal footnotes omitted)).

B. Step III Grievance Report

The April 11, 2023 R&R also summarized the relevant information from Hamer's Step III Grievance Report. (ECF No. 65, PageID.665-666 (citing ECF No. 23-3)). That R&R explained “that Hamer pursued only one relevant grievance through Step III of the MDOC's process. That grievance is RGC-22-04-0810-28E (RGC-810).” (Id.). It further explained that

[i]n RGC-810, Hamer wrote that he sprained his ankle and/or Achilles playing basketball and that he spoke to several medical staff members about this injury. ([ECF No. 23-3], PageID.141). After examining his ankle, one of the female registered nurses asked McGinty, the head nurse, what to do. (Id.). McGinty told her to deny Hamer's request for ice detail and a crutch. (Id.). McGinty never examined Hamer. (Id.).

(ECF No. 65, PageID.666).

III. Herro's Motion

Herro's motion contains two arguments: (1) he should be dismissed as a defendant because Hamer failed to state a claim against him and, alternatively, (2) he is entitled to summary judgment because Hamer failed to exhaust his administrative remedies against him. Each argument will be addressed in turn below.

A. Dismissal for Failure to State a Claim^[6]

1. Legal Standard

When deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must “construe the complaint in the light most favorable to plaintiff and accept all allegations as true.” Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (concluding that a plausible claim need not contain “detailed factual allegations,” but it must contain more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action”).

Facial plausibility is established “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citation omitted). “The plausibility of an inference depends on a host of considerations, including common sense and the strength of competing explanations for the defendant's conduct.” 16630 Southfield Ltd., P'Ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 503 (6th Cir. 2013).

Furthermore, the Court holds pro se complaints to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). However, even in pleadings drafted by pro se parties, “ ‘courts should not have to guess at the nature of the claim asserted.' ” Frengler v. Gen. Motors, 482 Fed.Appx. 975, 976-977 (6th Cir. 2012) (quoting Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989)). Moreover, “courts may not rewrite a complaint to include claims that were never presented . . . nor may courts construct the Plaintiff's legal arguments for him.... [N]either may the Court ‘conjure up unpled allegations[.]' ” Rogers v. Detroit Police Dept., 595 F.Supp.2d 757, 766 (E.D. Mich. 2009) (Ludington, J., adopting report and recommendation of Binder, M.J.).

2. Relevant Law

Under the Eighth Amendment, prisoners have a constitutional right to medical care. Estelle v. Gamble, 429 U.S. 97, 103 (1976). Prison officials may not act with deliberate indifference to the medical needs of their prisoners. Id. at 104. An Eighth Amendment claim has two components, one objective and the other subjective. Farmer v. Brennan, 511 U.S. 825, 834 (1994); Comstock v. McCrary, 273 F.3d 693, 702 (6th...