RAY KENT, Magistrate Judge.
This is a pro se civil rights action brought by a state prisoner at a Michigan Department of Corrections (MDOC) facility pursuant to 42 U.S.C. § 1983. The Court's case management order (CMO) (ECF No. 37) required that all discovery be completed by May 30, 2017, and all motions for summary judgment be filed by June 27, 2017. The parties inundated the Court with motions, including requests for extensions of time, which resulted in the Court ordering on June 26, 2017, that all discovery and motion deadlines in the CMO were to be stayed until the pending motions (ECF Nos. 38, 50, 55, 58, 60, 65, 72, and 74) were resolved and that defendant Dr. Gerlach could file a dispositive motion 90 days after the Court decided his motion to dismiss (ECF No. 74). See Order (ECF No. 77). The intent of that order was to cease all further discovery and motion practice in the case until the Court could resolve the outstanding motions. On the same date that the Court entered this order, Dr. Chad Linsley
Upon further review, the Court determined that this case was unmanageable in its present form, and severed all claims except the Eighth Amendment deliberate indifference claims alleged against three doctors, i.e., Dr. Doyle, Dr. Gerlach, and Dr. Linsley. See Order (ECF No. 84). Plaintiff has a medical condition known as keratoconus, which he alleged is a corneal degenerative disease which causes blindness. Amend. Compl. (ECF No. 8, PageID.77). Plaintiff also alleged that he is "completely blind in the left eye, and partially blind in the right." Id. The Court identified seven claims alleged against these three defendants related to this condition:
Order (ECF No. 84, PageID.702-703). This order severing claims resulted in the dismissal without prejudice of five motions (ECF Nos. 38, 50, 58, 65, and 72), leaving three motions for decision: Dr. Doyle's motion for summary judgment (ECF No. 55); Dr. Gerlach's motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) (ECF No. 74); and Dr. Linsley's motion for summary judgment (ECF no. 79). Id.
Dr. Gerlach contends that plaintiff's claims against him are barred by the statute of limitations and should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6). "A complaint is subject to dismissal without any further proof if `the allegations . . . show that relief is barred by the applicable statute of limitations.'" Surles v. Andison, 678 F.3d 452, 458 (6th Cir. 2012), quoting Jones v. Bock, 549 U.S. 199, 215 (2007).
Patton v. Village of Cassopolis, No. 1:13-cv-124, 2013 WL 3929989 at *1 (W.D. Mich. July 29, 2013).
The statute of limitations for a § 1983 claim in Michigan is three years, based upon Michigan's three-year statute of limitations for injury to a person or property, M.C.L. § 600.5805(10). Chippewa Trading Company v. Cox, 365 F.3d 538, 543 (6th Cir. 2004). The statute of limitations which applies to a prisoner's § 1983 civil rights action is tolled for the period during which the prisoner exhausts his state administrative remedies. See Waters v. Evans, 105 Fed. Appx. 827, 829 (6th Cir. 2004).
Brown v. Morgan, 209 F.3d 595, 596 (6th Cir. 2000).
Here, Dr. Gerlach's motion to dismiss should be denied because the statute of limitations defense is not clear from the face of the complaint. First, plaintiff did not allege specific dates when these actions occurred. Second, the Court does not accept Dr. Gerlach's conclusion that plaintiff's statute of limitations is tolled by a maximum of 150 days, which the doctor explains as "the maximum amount of time the MDOC policy allowed for the completion of the grievance process through Step III, including extensions . . . (120 days plus two 15-day extensions)." Gerlach Brief (ECF No. 74, PageID.638). This tolling argument has been rejected "because it is contrary to sound policy: if a grievance did not toll the limitations clock during the entire grievance process, the prison, upon receiving a grievance could, through its own dilatory practices, wait out the limitations period." See, e.g., Davis v. Straub, No. CIV.A. 10-14397, 2011 WL 2433398 at *7 (E.D. Mich. May 10, 2011), R&R adopted, No. 10-14397, 2011 WL 2415357 (E.D. Mich. June 13, 2011) (prisoner's statute of limitations should be tolled from the date the prisoner completed the Step I grievance form until the dated the MDOC approved the Step III grievance response, which in that case was 316 days). Given the tolling language in Brown ("the statute of limitations which applied to [the prisoner's] civil rights action was tolled for the period during which his available state remedies were being exhausted") and the policy considerations recognized in Davis, the undersigned concludes that the cause of action should be tolled during the actual time that it took for plaintiff to complete the grievance process, i.e., the date plaintiff submitted the Step I grievance form until the date the MDOC approved the Step III appeal. The relevant facts to determine tolling are not before the Court. Accordingly, Dr. Gerlach's motion to dismiss should be denied with respect to the statute of limitations defense.
As discussed, the Court identified three claims against Dr. Gerlach: prior to 2016, Dr. Gerlach failed to prescribe a cane; in 2012, Dr. Gerlach obstructed or prevented recommended cornea surgery; and, in 2012, Dr. Gerlach failed to provide plaintiff with appropriate contact lenses. Dr. Gerlach seeks to dismiss these claims pursuant to Fed. R. Civ. P. 12(b)(6).
Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, which "provides a civil cause of action for individuals who are deprived of any rights, privileges, or immunities secured by the Constitution or federal laws by those acting under color of state law." Smith v. City of Salem, Ohio, 378 F.3d 566, 576 (6th Cir. 2004). To state a § 1983 claim, a plaintiff must allege two elements: (1) a deprivation of rights secured by the Constitution and laws of the United States, and (2) that the defendant deprived him of this federal right under color of law. Jones v. Duncan, 840 F.2d 359, 360-61 (6th Cir. 1988); 42 U.S.C. § 1983.
To survive a motion to dismiss brought pursuant to Fed. R. Civ. P. 12(b)(6),
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted).
In making this determination, the complaint must be construed in the light most favorable to the plaintiff, and its well-pleaded facts must be accepted as true. Morgan v. Churchs Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987). The Court "may consider the Complaint and any exhibits attached thereto, public records, items appearing in the record of the case and exhibits attached to defendant's motion to dismiss so long as they are referred to in the Complaint and are central to the claims contained therein." Bassett v. National Collegiate Athletic Association, 528 F.3d 426, 430 (6th Cir. 2008). Finally, pro se complaints, like the one filed in this case, "are to be held to less stringent standards than formal pleadings drafted by lawyers, and should therefore be liberally construed." Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (internal quotation marks omitted).
It is well established that an inmate has a cause of action under § l983 against prison officials for "deliberate indifference" to his serious medical needs, since the same constitutes cruel and unusual punishment proscribed by the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97 (l976). A viable Eighth Amendment claim consists of an objective and a subjective component. Farmer v. Brennan, 511 U.S. 825, 834 (1994). A court considering a prisoner's Eighth Amendment claim must ask both if the alleged wrongdoing was objectively harmful enough to establish a constitutional violation and if the officials acted with a sufficiently culpable state of mind. Hudson v. McMillian, 503 U.S. 1, 8 (1992). The objective component requires the infliction of serious pain or failure to treat a serious medical condition. Id. at 8-9. "Because society does not expect that prisoners will have unqualified access to health care, deliberate indifference to medical needs amounts to an Eighth Amendment violation only if those needs are `serious.'" Id. at 9.
The subjective component requires that the defendant act with deliberate indifference to an inmate's health or safety. See Wilson v. Seiter, 501 U.S. 294, 302-03 (1991). To establish the subjective component, the plaintiff must show that "the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837. Mere negligence in diagnosing or treating a medical condition does not constitute an Eighth Amendment violation. Id. at 835. "It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause." Whitley v. Albers, 475 U.S. 312, 319 (1986).
The pleading requirements for a deliberate indifference claim were set forth in Finley v. Huss, ___ Fed. Appx. ___, 2018 WL 557837 (6th Cir. Jan. 25, 2018):
Finley, 2018 WL 557837 at *3.
First, plaintiff alleged that sometime prior to 2016, Dr. Gerlach failed to prescribe him a walking cane. Plaintiff claims that "despite numerous request [sic] from plaintiff to Dr. Gurlach [sic] to provide plaintiff a walking cane so plaintiff could navigate own [sic] his own pace, Gurlach fail [sic] to accommodate," and that "Gurlach action [sic] are deliberate indifference to plaintiff serious medical need." Amend. Compl. at PageID.78. For purposes of this motion, the Court must accept as true plaintiff's allegations: that he is "completely blind in the left eye, and partially blind in the right;" that Dr. Gerlach was aware of this condition; that plaintiff had trouble keeping up "stride for stride" with the prisoners assigned to assist him; that the prisoners assigned to assist plaintiff "would often leave plaintiff in the corner" until they were through playing sports"; and, that the doctor failed to prescribe a cane to plaintiff so that he could navigate at his own pace.
Plaintiff has not alleged sufficient facts to state a claim for relief against Dr. Gerlach for deliberate indifference to a serious medical need. In his amended complaint, plaintiff acknowledged that his eye condition was being accommodated by other prisoners who were assigned to assist him. While plaintiff also wants a cane so that he can navigate at his own pace, the failure to provide him a cane in addition to the inmate assistants does not rise to the level of an Eighth Amendment violation. See, e.g., Burnett v. Wilson, No. 1:06-cv-2621, 2007 WL 437921 at *3-5 (N.D. Ohio Feb. 7, 2007). At most, plaintiff has alleged that he had a difference of opinion with Dr. Gerlach as to whether he needed a walking cane in addition to the inmate assistants. Plaintiff's disagreement with Dr. Gerlach's medical judgment regarding a cane does not rise to the level of a federal constitutional claim. See Woodberry v. Simmons, 146 Fed. Appx. 976, 977 (10th Cir. 2005) ("a difference of opinion between a prisoner and the prison medical staff about medical treatment does not constitute deliberate indifference"); Owens v. Hutchinson, 79 Fed. Appx. 159, 161 (6th Cir. 2003) ("[a] patient's disagreement with his physicians over the proper medical treatment alleges no more than a medical malpractice claim, which is a tort actionable in state court, but is not cognizable as a federal constitutional claim"). Accordingly, plaintiff's claim that Dr. Gerlach denied him a walking cane should be dismissed.
Plaintiff alleged that Dr. Gerlach and former defendant Lebarre told plaintiff that there was no such contact lens called the "prose lens" and that Dr. Gerlach conspired with others "to deny purchasing the prose contact lens as a means to save cost and stall outb [sic] for cornea surgery, contrary to two cornea specialist orders." Amend. Compl. at PageID.85.
"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). Rule 56 further provides that a party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
Fed. R. Civ. P. 56(c)(1).
In Copeland v. Machulis, 57 F.3d 476 (6th Cir. 1995), the court set forth the parties' burden of proof in a motion for summary judgment:
Copeland, 57 F.3d at 478-79 (citations omitted). "In deciding a motion for summary judgment, the court views the factual evidence and draws all reasonable inferences in favor of the nonmoving party." McLean v. 988011 Ontario Ltd., 224 F.3d 797, 800 (6th Cir. 2000). However, the Court is not bound to blindly adopt a non-moving party's version of the facts. "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott v. Harris, 550 U.S. 372, 380 (2007).
Dr. Doyle has moved for summary judgment due to lack of exhaustion. The doctor has relied on the motion and brief filed by the former MDOC defendants (ECF Nos. 38 and 39).
The PLRA provides that a prisoner bringing an action with respect to prison conditions under 42 U.S.C. § 1983 must first exhaust available administrative remedies. See Porter v. Nussle, 534 U.S. 516 (2002); Booth v. Churner, 532 U.S. 731 (2001). A prisoner must exhaust available administrative remedies, even if the prisoner may not be able to obtain the specific type of relief he seeks in the state administrative process. See Porter, 534 U.S. at 520; Booth, 532 U.S. at 741. One reason for creating prisoner grievance procedures under the PLRA was to create an administrative record for the court.
Jones, 549 U.S. at 204. In order to properly exhaust administrative remedies, prisoners must complete the administrative review process in accordance with the deadlines and other applicable procedural rules. Id. at 218; Woodford v. Ngo, 548 U.S. 81, 90-91 (2006). "Compliance with prison grievance procedures, therefore, is all that is required by the PLRA to `properly exhaust.'" Jones, 549 U.S. at 218.
The MDOC requires prisoners to follow a three-step process to exhaust grievances. See Policy Directive 03.02.130 (effective July 9, 2007). A prisoner must first attempt to resolve a problem with the staff member within two business days of becoming aware of the grievable issue, unless prevented by circumstances beyond his or her control. Id. at ¶ P. If the issue is not resolved, then the grievant may file a Step I grievance on the prescribed form within five business days after the grievant attempted to resolve the issue with appropriate staff. Id. at ¶¶ P and R. The Policy Directive provides the following directions for completing grievance forms:
Id. at ¶ R (emphasis in original). The prisoner must send the Step I grievance to the appropriate grievance coordinator. Id. at ¶ V. If the prisoner is dissatisfied with the Step I response, or does not receive a timely response, he must request the appropriate form and send it to the Step II Grievance Coordinator. Id. at ¶ BB. Finally, if a prisoner is dissatisfied with the Step II response, or does not receive a timely response, he must send a completed Step III grievance, using the appropriate form, to the Grievance and Appeals Section. Id. at ¶ FF.
Dr. Doyle's motion for summary judgment is deficient. While the MDOC defendants filed copies of over 200 pages of the grievances relevant to plaintiff's claims against them, see Exhibits (ECF Nos. 39-1, 39-2, 39-3, 39-4, 39-5, and 39-6), their motion does not address whether plaintiff exhausted any grievances against Dr. Doyle. For his part, Dr. Doyle makes no attempt to sort out which grievances may apply to him. "[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived. It is not sufficient for a party to mention a possible argument in a most skeletal way, leaving the court to. . . put flesh on its bones." McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997). Accordingly, Dr. Doyle's motion for summary judgment (ECF No. 55) should be denied without prejudice.
Dr. Linsley has raised two issues on summary judgment. First, Dr. Linsley seeks summary judgment for lack of exhaustion, stating that he "adopts and incorporates by reference the arguments set forth in the Brief in Support of M.D.O.C. Defendants' Motion for Summary Judgment (R.39)." Dr. Linsley Brief (ECF No. 80, PageID.669). This cryptic argument is deficient for the same reasons as the argument advanced by Dr. Doyle. Accordingly, Dr. Linsley's motion should be denied to the extent he seeks summary judgment for lack of exhaustion.
Second, Dr. Linsley contends that he is entitled to summary judgment on the merits of plaintiff's Eighth Amendment claims. As an initial matter, although Dr. Linsley has styled his motion as one for summary judgment, he does not present any evidence to support his claim as contemplated by Fed. R. Civ. P. 56. Rather, Dr. Linsley is effectively moving to dismiss plaintiff's claims as legally deficient. Accordingly, the Court will address Linsley's motion as one to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6). As discussed, plaintiff's amended complaint alleged that in 2010, 2013 and 2015, Dr. Doyle and Dr. Linsley failed to provide plaintiff with appropriate contact lenses which caused swelling of his cornea, and that on July 13, 2016, Dr. Linsley told plaintiff that he would be receiving contact lenses but plaintiff did not receive the lenses. Plaintiff's claims against Dr. Linsley can be distilled into two incidents. The first incident occurred in 2015 when plaintiff was sent to "Dw" or "Dwh" [Duane Waters Hospital] eye clinic. According to plaintiff, DWH optometrist Dr. Linsley knew through reading plaintiff's optometry chart that on April 25, 2013 Dr. Lavery of TLC eye clinic had refused to perform cornea surgery on plaintiff because Lavery "felt that cornea transplant would harm plaintiff do [sic] to prison setting if plaintiff body [sic] rejected the transplant or plaintiff caught eye infection rescheduling would be to [sic] hard before irreparable damage would be done"; that Dr. Linsley tried to fit plaintiff with "gas perm lenses"; that these lenses caused plaintiff "swelling on the cornea;" and that plaintiff returned the lenses to a nurse at the DRF dispensary window and either the nurse or plaintiff (it is unclear from the pleading) informed Dr. Doyle and former defendants Lambart and Stevens that plaintiff had turned in the contact lenses." Amend. Compl. at PageID.87-88.
The second incident occurred in 2016 and arose from the following facts. Plaintiff was referred to a specialist who performed testing and decided that a cornea transplant would be harmful to plaintiff. Id. at PageID.88. The specialist informed former defendants Lambart, Stevens and Bordering that he could design a lens call the "prose" and that this lens would greatly improve plaintiff's vision and provide comfort. Id. However, the MDOC decided not to purchase this lens. Id. After several months elapsed, during which plaintiff complained that he was suffering pain and blurred vision, plaintiff was sent back to DWH, where he was seen by Dr. Linsley. Id. After reviewing plaintiff's file, Dr. Linsley informed former defendants Lambart and Stevens that he could not duplicate the prose lens. Id. Plaintiff suffered a slip and fall because he could not see well enough without the contact lenses. Id. at PageID.88-89. Finally, plaintiff alleged that he was seen by Dr. Linsley on July 13, 2016 (about four months after the lawsuit was filed), who informed plaintiff that he "would be reciving [sic] contact lenses but to no avai [sic]." Id. at PageID.89.
With respect to the 2015 incident, the gist of plaintiff's claim is that Dr. Linsley provided inadequate medical care, i.e., the doctor fitted plaintiff with gas permeable contact lenses and that plaintiff returned the lenses because plaintiff said they caused corneal swelling. This claim does not rise to the level of an Eighth Amendment violation. . . "[W]here a prisoner has received some medical attention and the dispute is over the adequacy of the treatment, federal courts are generally reluctant to second guess medical judgments and to constitutionalize claims which sound in state tort law." Graham ex rel. Estate of Graham v. County of Washtenaw, 358 F.3d 377, 385 (6th Cir. 2004), quoting Westlake v. Lucas, 537 F.2d 857, 860 n. 5 (6th Cir. 1976).
Finally, the gist of plaintiff's 2016 claim against Dr. Linsley is that the doctor could not duplicate or provide prose contact lenses. This claim does not rise to the level of either an Eighth Amendment claim or inadequate medical treatment. Plaintiff's claim against the doctor appears to be nothing more than an accusation that "the — defendant — unlawfully — harmed — me" which is insufficient to state a cause of action. See Iqbal, 556 U.S. at 678. Accordingly, Dr. Linsley's motion for summary judgment (ECF No. 79) should be granted.
For the reasons set forth above, I respectfully recommend that Dr. Gerlach's motion to dismiss (ECF No. 74) be
I further recommend that Dr. Doyle's motion for summary judgment (ECF No. 55) be
I further recommend that Dr. Linsley's motion for summary judgment (ECF No. 79) be
I further recommend that the Court enter an amended case management order setting forth deadlines for discovery and dispositive motions on the remaining claims against Dr. Gerlach and Dr. Doyle.
