REPORT AND RECOMMENDATION

HUGH W. BRENNEMAN, Jr., Magistrate Judge.

This is a civil rights action brought by a state prisoner incarcerated by the Michigan Department of Corrections ("MDOC") pursuant to 42 U.S.C. § 1983. This matter is now before the court on defendant "Dr. Gordon's Motion to dismiss" (docket no. 103) and defendant "Dr. Whitely's Motion to dismiss and for summary judgment" (docket no. 106). Both motions are unopposed.

I. Background

Plaintiff filed this action in the United States District Court for the Eastern District of Michigan. See Compl. (docket no. 1). The action was transferred to the Western District, where the court granted plaintiff's request to proceed in forma pauperis and ordered service of the complaint. See Orders (docket nos. 4, 7 and 8). Plaintiff's complaint named the following defendants: Alfred Jones, administrative assistant for the MDOC's Southern Region Health Care Unit; RN Bryan Deeren; RN Jody LeBarre; and Correctional Medical Services (CMS). Amend. Compl. at p. 1 (docket no. 22); Attachments to Amend. Compl. (docket no. 22-3 at pp. 16-18). Plaintiff's complaint also named four unknown defendants (unknown parties nos. 1, 2, 3 and 4), which plaintiff also referred to as: "TLC doctors"; "Duane Waters Health Care doctor"; "Van Buren County Jail doctor"; "Kalamazoo doctor (sent by Van Buren doctor)." Id. Plaintiff filed an amended complaint, claiming that defendants were deliberately indifferent to his serious medical needs "resulting in the blindness of his left eye." See Amend. Compl. at p. 14 (docket no. 22).

The Court previously summarized plaintiff's claims as follows:

Report and Recommendation at pp. 2-4 (docket no. 70) (footnote omitted).

In an order entered on March 22, 2013, the Court dismissed all defendants except for the four unknown parties. See Memorandum Order (docket no. 78). The Court subsequently dismissed plaintiff's claims against two of these defendants, referred to as unknown party no. 2 and unknown party no. 3. See Order (docket no. 101). The Court directed service on the two remaining defendants, which plaintiff identified as "Dr. Gordon" (unknown party no. 1) and "Kimberly A. Whitely, O.D." (unknown party no. 4). See Order (docket no. 100). Dr. Gordon and Dr. Whitely have filed dispositive motions.

II. Defendants' dispositive motions

A. Legal Standard

Dr. Gordon's motion is styled as a "motion to dismiss." See Motion (docket no. 103 at pp. 1-2). However, the supporting brief seeks both dismissal under Fed. R. Civ. P. 12(b)(6) and summary judgment under Fed. R. Civ. P. 56. See Brief (docket no. 103 at pp. 2-22). Dr. Whitely's motion seeks dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6)1 and Fed. R. Civ. P. 56. See Motion (docket no. 106). It is unclear as to which portions of these awkwardly prepared motions seek relief under Fed. R. Civ. P. 12(b)(6) and which portions seek relief under Fed. R. Civ. P. 56. However, it is clear that both defendants rely on affidavits to support their motions. Under these circumstances, the Court will review both motions as brought pursuant to Fed. R. Civ. P. 56.

Under Fed. R. Civ. P. 56(a), "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." 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 deciding 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).

Both of defendants' motions are unopposed. "The fact that there has been no response to a summary judgment motion does not, of course, mean that the motion is to be granted automatically." Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). The trial court is required to "intelligently and carefully review the legitimacy of such unresponded-to motion" and cannot "blithely accept the conclusions argued in the motion." Guarino v. Brookfield Township Trustees, 980 F.2d 399, 407 (6th Cir. 1992). However, when a motion for summary judgment is unopposed, "[n]othing in either the Rules or case law supports an argument that the trial court must conduct its own probing investigation of the record" to demonstrate the existence of genuine issues of material fact. Id. at 405.

B. Plaintiff's federal claims

Plaintiff has alleged that in April, May and August, 2010, unnamed specialists or doctors were deliberately indifferent to his serious medical needs in violation of his constitutional rights and committed state law torts by providing negligent medical treatment and acting with "reckless and callous disregard to plaintiff," when they treated a torn retina in his left eye. Plaintiff later identified defendants Dr. Gordon and Dr. Whitely as two of these specialist or doctors.2

Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, which confers a private federal right of action against any person who, acting under color of state law, deprives an individual of any right, privilege or immunity secured by the Constitution or federal laws. Burnett v. Grattan, 468 U.S. 42, 45 n. 2 (1984); Stack v. Killian, 96 F.3d 159, 161 (6th Cir.1996). 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. 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. Hudson, 503 U.S. at 8-9. 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 Punishment Clause." Whitley v. Albers, 475 U.S. 312, 319 (1986).

Both Dr. Gordon and Dr. Whitely have submitted uncontested affidavits denying any involvement in plaintiff's medical care. In her affidavit, Dr. Gordon stated that she is a medical doctor specializing in ophthalmology. See Dr. Gordon Aff. at ¶ 2 (docket no. 103-4). Dr. Gordon further stated that, contrary to plaintiff's allegations, "she was not involved, either directly or indirectly, with the care of Plaintiff during July, August or September 2010, including the surgery of August 11, 2010." Id. at ¶ 4.

In her affidavit, Dr. Whitely stated that she is an optometrist licensed to practice in the State of Michigan. See Dr. Whitely Aff. at ¶ 2 (docket no. 107-1). In addition, Dr. Whitely stated that she "did not examine or treat Mr. Thomson in April, 2010, as alleged in the amended complaint." Id. at ¶ 4. Dr. Whitely further stated that "although Mr. Thomson has not alleged that I examined or treated him during the months of May, June, July or August, 2010, I can also stated unequivocally that I did not examine or treat Mr. Thomson during those months," that during that time she was a student at the Michigan College of Optometry, that she did not participate in any clinical program until the summer of 2011 which was "long after the events alleged in the amended complaint," that she did not graduate from the Michigan College of Optometry until May, 2012, and that she was not licensed to practice optometry until June 12, 2012. Id. at ¶¶ 5-7.

Plaintiff's claims against Dr. Gordon and Dr. Whitely are without foundation. The undisputed record establishes that neither Dr. Gordon nor Dr. Whitely treated plaintiff during the dates alleged in the amended complaint. Indeed, Dr. Whitely was not even licensed to practice optometry until June 2012, approximately two years after plaintiff received his treatment in 2010. In short, there is no factual basis to support plaintiff's claims that these two defendants were deliberately indifferent to plaintiff's serious medical needs as alleged in the amended complaint. Accordingly, defendants are entitled to summary judgment on plaintiff's § 1983 claim.

C. Plaintiff's state law claims

Finally, to the extent that plaintiff claims that defendants committed medical malpractice under state law, his claims fail. Dr. Whitely points out that plaintiff failed to comply with at least two statutory prerequisites for filing a medical malpractice action in Michigan, i.e., a notice of intent under M.C.L. § 600.2912b(1) and an affidavit of merit under M.C.L. § 600.2912d. See Dr. Whitely's Brief at pp. 5-8 (docket no. 107). However, it is unnecessary to address these procedural issues, because it is undisputed that neither Dr. Gordon nor Dr. Whitely treated plaintiff during the times alleged in the complaint. Accordingly, defendants are entitled to summary judgment on plaintiff's state law claims.

III. Recommendation

For the reasons set forth above, I respectfully recommend that Dr. Gordon and Dr. Whitely's motions for summary judgment (docket nos. 103 and 106) be GRANTED and that this action be TERMINATED.