ORDER ADOPTING IN PART REPORT AND RECOMMENDATION, OVERRULING PLAINTIFF'S OBJECTIONS, SUSTAINING DEFENDANTS' OBJECTIONS, GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, AND DISMISSING SECOND AMENDED COMPLAINT

THOMAS L. LUDINGTON, District Judge.

On November 1, 2017, Plaintiff David Lashuay filed a complaint against a variety of medical staff and medical providers alleging that they were deliberately indifferent to his medical needs while he was incarcerated by the Michigan Department of Corrections.1 ECF No. 1. On November 10, 2017, and before any Defendants were served, Lashuay filed an amended complaint which made minor factual clarifications and corrected several clerical errors. ECF No. 4. On April 27, 2018, Lashuay filed a second amended complaint after receiving leave to do so. ECF No. 65.

The next week, all pretrial matters were referred to Magistrate Judge Patricia Morris. ECF No. 68. Defendants filed motions for summary judgment the next year. ECF Nos. 90, 92. Magistrate Judge Morris issued a report recommending that the motions be granted in part and denied in part. ECF No. 120. Specifically, she recommended that Plaintiff's claims against Defendants Trout, Zeigler, Borgerding, Sigler, Vanbergen, Klee, Dunning-Meyers, DeLine, Whiteman, Hill, and Larson be dismissed. She further recommended that all claims against Defendants Papendick and Rais be dismissed except for Plaintiff's claim that Papendick and Rick violated his Eighth Amendment rights by failing to arrange his surgery. Excluding these claims against Papendick and Rick, she recommended that Defendants' motions for summary judgment, ECF Nos. 90 and 92, be granted.

Defendants Papendick and Rais filed objections to Magistrate Judge Morris's report. ECF No. 121. Plaintiff also filed objections to the report, contending that Magistrate Judge Morris erred in dismissing his claims that Defendants Larson, Hill, and Rais had violated his Eighth Amendment rights by reducing his pain medications. ECF No. 122. None of the parties objected to Magistrate Judge Morris's recommendation that Plaintiff's claims against Defendants Vanbergen, Zeigler, Dunning-Meyers, Bogerding, Sigler, DeLine, Trout, Klee, and Whiteman be dismissed. Accordingly, Plaintiff's claims against those defendants will be dismissed.

I.

A.

Neither party has objected to Magistrate Judge Morris's summary of the facts, which provides:

ECF No. 120 at PageID.3771-3793.

B.

Magistrate Judge Morris found that "Plaintiff's allegations of inadequate treatment fall under three broad categories-wound care, pain medications, and surgery." ECF No. 120 at PageID.3814. She addressed each of these three categories in turn.

Of the Defendants, Plaintiff only alleged that Defendant Hill provided inadequate wound care. Magistrate Judge Morris determined that Plaintiff had furnished insufficient evidence to sustain a claim of inadequate wound care against Defendant Hill and recommended that the claim be dismissed. Plaintiff has not objected to the dismissal of this claim. Accordingly, the claim of inadequate wound care against Defendant Hill will be dismissed.

Magistrate Judge Morris then addressed Plaintiff's arguments that Defendants Larson, Hill, and Rais provided inadequate pain medication. Magistrate Judge Morris recommended dismissing the claim because Plaintiff did not furnish "proof of his need for certain medications or dosages and the effects of not getting them." ECF No. 120 at PageID.3817.

Magistrate Judge Morris then addressed Plaintiff's final claims, that Defendants violated Plaintiff's Eighth Amendment rights by failing to arrange contracture and regrafting surgeries for Plaintiff. ECF No. 120 at PageID.3823. She recommended that a question of fact remained as to whether Papendick and Rais were deliberately indifferent to Plaintiff's medical needs. ECF No. 120 at PageID.3824-3830.

II.

Pursuant to Federal Rule of Civil Procedure 72, a party may object to and seek review of a Magistrate Judge's report and recommendation. See Fed. R. Civ. P. 72(b)(2). Objections must be stated with specificity. Thomas v. Arn, 474 U.S. 140, 151 (1985) (citation omitted). If objections are made, "[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed. R. Civ. P. 72(b)(3). De novo review requires at least a review of the evidence before the Magistrate Judge; the Court may not act solely on the basis of a Magistrate Judge's report and recommendation. See Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir. 1981). After reviewing the evidence, the Court is free to accept, reject, or modify the findings or recommendations of the Magistrate Judge. See Lardie v. Birkett, 221 F.Supp.2d 806, 807 (E.D. Mich. 2002).

Only those objections that are specific are entitled to a de novo review under the statute. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). "The parties have the duty to pinpoint those portions of the magistrate's report that the district court must specially consider." Id. (internal quotation marks and citation omitted). A general objection, or one that merely restates the arguments previously presented, does not sufficiently identify alleged errors on the part of the magistrate judge. See VanDiver v. Martin, 304 F.Supp.2d 934, 937 (E.D.Mich.2004). An "objection" that does nothing more than disagree with a magistrate judge's determination, "without explaining the source of the error," is not considered a valid objection. Howard v. Sec'y of Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). Without specific objections, "[t]he functions of the district court are effectively duplicated as both the magistrate and the district court perform identical tasks. This duplication of time and effort wastes judicial resources rather than saving them, and runs contrary to the purposes of the Magistrate's Act." Id.

III.

By its terms, the Eighth Amendment prohibits the imposition of any cruel and unusual punishment. At the time of its adoption, "cruel and unusual punishment" included draconian punishments such as the rack, thumbscrews, "tortures[,] and other barbarous methods of punishment." Gregg v. Georgia, 428 U.S. 153, 170 (1976) (internal quotation marks and citation omitted). Since then, Eighth Amendment jurisprudence has not remained static, but has developed with "the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 100 (1958). Under this evolving standard, the Supreme Court requires prison officials to "provide medical care for those whom it is punishing by incarceration." Estelle v. Gamble, 429 U.S. 97, 103 (1976). Prison officials are prohibited from being deliberately indifferent to a prisoner's serious medical needs, meaning the "unnecessary and wanton infliction of pain." Id. at 104.

A constitutional claim for the deprivation of adequate medical care "has two components, one objective and one subjective." Johnson v. Karnes, 398 F.3d 868, 874 (6th Cir. 2005) (citing Comstock v. McCrary, 273 F.3d 693, 702 (6th Cir. 2001), cert. denied, 537 U.S. 817 (2002)).

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). To establish a serious need for medical care, "Farmer requires only that `the inmate show that he is incarcerated under conditions posing a substantial risk of serious harm[,]' so as to avoid `the unnecessary and wanton infliction of pain.'" Blackmore v. Kalamazoo Cty., 390 F.3d 890, 896 (6th Cir. 2004) (quoting Farmer, 511 U.S. at 834). A serious medical need may be demonstrated by a physician's diagnosis mandating treatment or a condition that "is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." Id. at 897 (citations omitted).

Establishing the second, 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.'" Dominguez v. Corr. Med. Serv., 555 F.3d at 550 (quoting Comstock, 273 F.3d at 703). Deliberate indifference requires "more than negligence or the misdiagnosis of an ailment." Comstock, 273 F.3d at 703 (citations omitted). Courts evaluating such a claim "distinguish between cases where the complaint alleges a complete denial of medical care and those cases where the claim is that a prisoner received inadequate medical treatment." Alspaugh v. McConnell, 643 F.3d 162, 169 (6th Cir. 2011) (quoting Westlake v. Lucas, 537 F.2d 857, 860 n. 5 (6th Cir.1976)).

Allegations of negligence, poor medical judgment, or unsuccessful treatment do not provide a basis to find an Eighth Amendment violation. Smith v. Green, 959 F.2d 236 (6th Cir. 1992) (citing Estelle, v. Gamble, 429 U.S. 97, 106 (1976)). "Where a prisoner alleges only that the medical care he received was inadequate, `federal courts are generally reluctant to second guess medical judgments,' although `it is possible for medical treatment to be `so woefully inadequate as to amount to no treatment at all.'" Id. (citing Westlake, 537 F.2d at 860 n. 5). But "a desire for additional or different treatment does not suffice by itself to support an Eighth Amendment claim." Mitchell v. Hininger, 553 F. App'x 602, 605 (6th Cir. 2014) (citing Estelle, 429 U.S. at 107; Rhinehart v. Scutt, 509 F. App'x 510, 513-14 (6th Cir. 2013)) (other citation omitted). See also Alspaugh, 643 F.3d at 169 (while "Alspaugh certainly would have desired more aggressive treatment, he was at no point denied treatment.").

IV.

Plaintiff and Defendants Papendick and Rais have filed objections to Magistrate Judge Morris's report and recommendation. Both sets of objections will be addressed in turn and for the following reasons, Plaintiff's objections will be overruled and Defendant Papendick and Rais's objections will be sustained.

A.

Magistrate Judge Morris recommended dismissing Plaintiff's claim of inadequate pain management treatment by Defendants Larson, Hill, and Rais because Plaintiff did not furnish "proof of his need for certain medications or dosages and the effects of not getting them." ECF No. 120 at PageID.3817. Plaintiff filed an objection to Magistrate Judge Morris's report, but did not identify any medical evidence to support his assertion. Without this showing, he has not demonstrated that he experienced a serious medical need.

Plaintiff does not claim in his complaint that Defendants failed to provide him with pain medications. Instead, he claims that Defendants reduced or ceased certain medications that he allegedly needed. ECF No. 112 at PageID.2861-2862. As noted above, Defendants reduced Plaintiff's pain medications for various medical reasons, including concerns about the addictive nature of some of the drugs. Plaintiff has not provided any medical evidence to support the proposition that this decrease in medication caused a serious medical need. "To the contrary, the evidence all suggests that the tapering which occurred was standard practice or at least had some medical rationale." ECF No. 120 at PageID.3817. Though he may disagree with Defendants decision to reduce his pain medications, this does not rise to the level of an Eighth Amendment violation. See Owens v. Hutchinson, 2003 WL 22434571, at *2 (6th Cir. Oct. 24, 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 objections will be overruled.

B.

Defendants Papendick and Rais object to Magistrate Judge Morris's recommendation that questions of fact remain regarding their actions related to Plaintiff's recommended surgery. As explained above, under the objective component, a plaintiff must show the existence of a "sufficiently serious" medical need. Dominguez, 555 F.3d at 550 (6th Cir. 2009) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)). A serious medical need may be demonstrated by a physician's diagnosis mandating treatment or a condition that "is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." Blackmore v. Kalamazoo Cty., 390 F.3d 890, 897 (6th Cir. 2004). "[F]ailure to provide the prescribed plan of treatment may form the basis of a claim for deliberate indifference to an inmate's serious medical needs." Richmond v. Huq, 885 F.3d 928, 941 (6th Cir. 2018); see also Boretti v. Wiscomb, 930 F.2d 1150, 1154 (6th Cir. 1991).

Rais and Papendick claim that "Plaintiff has not established a serious medical need, because there was no timeline associated with the recommended surgery and no harm would have resulted from delaying the procedure." ECF No. 121 at PageID.3836. Dr. Morris, the doctor who treated Plaintiff at Hurley prior to Plaintiff's transfer to DWH, testified in an affidavit that:

On October 15, 2014 I noted that Mr. Lashuay was likely to require contracture releases in the future; however, prior to any further surgery he would have to maximize his available functioning and allow the grafted wounds to mature.

On December 19, 2014, I had my first follow up with Mr. Lashuay following his discharge from Hurley Rehab in October. Mr. Lashuay presented with a healed face, scattered residual unhealed areas on the left side of his neck, left shoulder, and right shoulder. I also noted poor hand movement, left elbow contracture, and no signs of infection.

I recommended that Mr. Lashuay's future treatment should include, at some point, a contracture release and re-grafting...

When Mr. Lashuay was released from prison in September 2016, he had another follow-up visit with me. It was not too late for Mr. Lashuay to have the contracture release and re-grafting procedures at that time.

On September 26, 2016, I performed another skin graft on Mr. Lashuay's right hand. At that time, I recommended a post-surgical follow-up visit and additional surgery to be completed at a later time.

Mr. Lashuay did not schedule any further follow up with me...

At the time of my involvement in Mr. Lashuay's care from 2014-2016, I did not identify any harm that Mr. Lashuay suffered as a result of inadequate or delayed medical care while incarcerated.

ECF No. 90-13. Another doctor who treated Plaintiff at Hurley, Dr. Hettle, testified that "it was expected that Mr. Lashuay would have scarring and that he would need contracture release surgery at some point in the future." ECF No. 92-6 at PageID.2010.

Neither Dr. Morris nor Dr. Hettle provided a specific timeframe in which Plaintiff should receive his surgery. Eight months after Plaintiff was admitted to DWH, Dr. Hill requested that Plaintiff receive the surgeries. Her report provided:

ECF No. 90-3. The next month, Dr. Rais also requested that Plaintiff receive the surgery. His report provided, "It has been recommended by Hurley Burn Center that once all open wounds are healed he could/should have contracture release." ECF No. 98 at PageID.2663. He contacted three different surgeons, but concluded by November 2015 that none of them were willing to perform Plaintiff's surgery.

Magistrate Judge Morris determined that Defendant Hill's and Defendant Rais's recommendations for the surgery demonstrate that the Defendants acknowledged that the surgery was necessary. However, neither their requests nor the original recommendations by Dr. Morris or Dr. Hettle provide any indication that the surgery had to be performed immediately. Plaintiff cannot sustain his argument that he suffered a serious medical need when Defendants allegedly failed to "provide the prescribed plan of treatment." Richmond v. Huq, 885 F.3d 928, 941 (6th Cir. 2018). None of his healthcare providers concluded that the surgery was urgent or required immediate attention. This is further supported by Dr. Morris's assertion that following Plaintiff's discharge from DWH, Dr Morris concluded that "[i]t was not too late for Mr. Lashuay to have the contracture release and re-grafting procedures at that time."

Magistrate Judge Morris notes that Dr. Morris's statement "cuts both ways" and reasons that:

ECF No. 120 at PageID.3825. Her recommendation further provides:

Id. at PageID.3826.

However, during Plaintiff's incarceration, he was receiving continuous treatment for his burns. The Sixth Circuit distinguishes "between cases where the complaint alleges a complete denial of medical care and those cases where the claim is that a prisoner received inadequate medical treatment." Westlake v. Lucas, 537 F.2d 857, 860 n. 5 (6th Cir. 1976). "Allegations `that more should have been done by way of diagnosis and treatment' and `suggest[ions]' of other `options that were not pursued' raise at most a claim of medical malpractice, not a cognizable Eighth Amendment claim." Rhinehart v. Scutt, 894 F.3d 721, 741 (6th Cir. 2018) (quoting Estelle, 429 U.S. at 107).

Plaintiff does not dispute that he was receiving treatment for his burns while incarcerated. Though Dr. Morris, Dr. Hill, and Dr. recommended that Plaintiff receive surgery at some undetermined point in the future, this alone does not rise to the level of an Eighth Amendment violation. Plaintiff received treatment for his burns the entire time he was incarcerated. This is supported by Dr. Morris's assertion that he "did not identify any harm that Mr. Lashuay suffered as a result of inadequate or delayed medical care while incarcerated." ECF No. 90-13. Though Plaintiff may have desired that the surgery occur sooner, this does not negate the fact that Plaintiff was still receiving adequate medical care while incarcerated. Accordingly, his complaint does not qualify as an Eighth Amendment claim.

V.

Accordingly, it is ORDERED that the Report and Recommendation, ECF No. 120, is ADOPTED IN PART.

It is further ORDERED that Plaintiff's objections, ECF No. 122, are OVERRULED.

It is further ORDERED that Defendants' objections, ECF No. 121, are SUSTAINED.

It is further ORDERED that Defendants' motions for summary judgment, ECF Nos. 90 and 92, are GRANTED.

It is further ORDERED that Plaintiff's Second Amended complaint, ECF No. 65, is DISMISSED.