Alspaugh v. Mcconnell

• Decision Date: 22 June 2011
• Docket Number: No. 08–2330.,08–2330.
• Citation: 643 F.3d 162
• Parties: Robert ALSPAUGH, Jr., Plaintiff–Appellant,v.Rex McCONNELL, Asher Berhane, Unknown Quinn, Gerald Hofbauer, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

643 F.3d 162

Robert ALSPAUGH, Jr., Plaintiff–Appellant,

v.Rex McCONNELL, Asher Berhane, Unknown Quinn, Gerald Hofbauer, et al., Defendants–Appellees.

No. 08–2330.

United States Court of Appeals, Sixth Circuit.

Argued: April 19, 2011.Decided and Filed: May 23, 2011.Rehearing Denied June 22, 2011.

ARGUED: Michelle L. Marks, Jones Day, Washington, D.C., for Appellant. Brian J. Richtarcik, The Juip Richtarcik Law Firm, Detroit, Michigan, Cori E. Barkman, Office of the Michigan Attorney General, Lansing, Michigan, for Appellees. ON BRIEF: Michelle L. Marks, Jones Day, Washington, D.C., for Appellant. Brian J. Richtarcik, The Juip Richtarcik Law Firm, Detroit, Michigan, Cori E. Barkman, Office of the Michigan Attorney General, Lansing, Michigan, Ronald W. Chapman, Kimberley A. Koester, Chapman and Associates, P.C., Bloomfield Hills, Michigan, for Appellees. Robert Alspaugh, Ionia, Michigan, pro se.Before: MARTIN, SILER, and ROGERS, Circuit Judges.

OPINION

SILER, Circuit Judge.

Plaintiff Robert Alspaugh filed a 42 U.S.C. § 1983 suit alleging excessive force and deliberate indifference against numerous state and private defendants. The district court did not allow Alspaugh to conduct discovery against the state defendants, while allowing limited discovery against the private defendants. It subsequently granted summary judgment against Alspaugh on all his § 1983 claims. For the reasons stated below, we AFFIRM in part and REVERSE in part.

I.

Alspaugh, currently an inmate at the Ionia Maximum Security Correctional Facility in Michigan, filed a pro se civil rights action pursuant to 42 U.S.C. § 1983 against numerous state and private defendants alleging multiple civil rights violations while he was imprisoned at the Marquette Branch prison in Michigan. On appeal, he focuses his claims on allegations of excessive force and deliberately indifferent medical care.

Alspaugh's excessive force claim derives from an incident on November 1, 2004, when, while returning from a hearing room, he pulled at his restraints and tried to grab a nearby food cart. In response, two prison officials, Officers Champion and Kangas, forced him to the ground with the help of other staff members. According to Alspaugh, once he was on the floor, the officers “beat and twisted [him] in such a fashion to cause pain.” According to the officers, further force was needed because he continued to struggle after being taken to the ground.

Alspaugh claims that following this incident state and private defendants were deliberately indifferent in caring for a neck injury he suffered in the altercation. While Alspaugh immediately complained of pain, Nurse Ewers did not find that he had serious injuries and scheduled him to see Dr. McConnell the next day. Prison staff, however, refused to allow Alspaugh to go to his appointment because he was on a “no out of cell movement” restriction due to the assault incident. Two days later, Dr. McConnell examined Alspaugh from outside his cell, but had no physical contact with him. Though Alspaugh had suffered a broken neck previously, Dr. McConnell did not at this time prescribe any treatment for the injuries Alspaugh claimed to have sustained during this incident. The following day, he was seen by Nurse Kimsel, who noted Alspaugh had a limited range of motion in his neck and at certain angles had “sharp needle like pain.”

Alspaugh finally received a full examination by Dr. McConnell on November 19, 2004. During this appointment, “Dr. McConnell noted Mr. Alspaugh moved with great care, groaning, and reluctance.” He also observed Alspaugh had a limited range of motion in his neck, ordered an x-ray, and prescribed a soft cervical collar. A radiology report subsequently showed that while there were no acute fractures, he had “degenerative changes at C5–6 and fused C6–7.”

Alspaugh later “kited” (filed an official written complaint) with continued neck pain on December 2 and again on December 10. On December 14, 2004, Dr. McConnell ordered continuation of the soft cervical collar, warm compresses, and Motrin with the evening meal. Alspaugh disputes receiving the warm compresses and Motrin. He was again examined for neck pain on April 20, 2005, this time by Dr. Berhane, but “[s]he planned supportive care only.” Alspaugh would eventually be treated through surgical intervention, but this occurred only after he was transferred to a different detention facility.

Alspaugh also asserts he received deliberately indifferent medical care for an unrelated toe injury. He alleges that Nurse Ewers refused to even pick up his health care kite on July 18, 2005, and that, when more than a week later another nurse looked at his toe, the nurse stated it appeared broken. Dr. Berhane examined Alspaugh on July 28, 2005, and a subsequent x-ray confirmed the nurse's diagnosis. Dr. Berhane instructed Alspaugh to continue using aspirin from the prison store, but he later kited for pain medication that Nurse Ewers denied him. In September Alspaugh's toe was finally taped, but he claims the infection in his toe, in conjunction with the related stress and his pre-existing HIV and Hepatitis C, caused his immune system to fail.

During the subsequent legal proceedings, the district court granted a stay of discovery in favor of the state defendants based on their claim that Alspaugh failed to exhaust his administrative remedies. State defendants Hofbauer, Aalto, and Conklin then filed a motion to dismiss; and state defendants Ewers, Champion, Kimsel, Mayotte, and Kangas filed a motion for summary judgment. The district court adopted the magistrate judge's report and recommendation and dismissed the claims against the state defendants without lifting the stay or allowing any discovery.

The district court did allow limited discovery to go forward against the private defendants, Dr. Berhane, Dr. McConnell, and N.P. Guinn, but also dismissed the claims against them.

II.

The state defendants argue that Alspaugh failed to timely object to the magistrate judge's report recommending summary judgment on the excessive force claim and that therefore he has waived this issue on appeal. The report and recommendation allowed ten days for objections and stated “failure to file timely objections constitutes a waiver of any further right to appeal.” Alspaugh failed to object within the ten-day time period, filing his first objections approximately two weeks late, because he did not receive the report until the deadline. Alspaugh sought and was denied an extension of time to file.

In his first objections, Alspaugh challenged the entry of summary judgment in favor of the state defendants. Approximately four months later, in a motion entitled “Motion to Compel the District Judge to Issue his De Novo Determinations in Accordance with Fed. R. Civ. Pro. Rule 72(b)(3),” Alspaugh again challenged the entry of summary judgment and expanded on his opposition, contending the state defendants offered no evidence to prove he resisted staff, while he offered evidence he did not. Both sets of objections were filed before the district court approved the report and recommendation on March 11, 2008.

“[O]nly those specific objections to the magistrate's report made to the district court will be preserved for appellate review; making some objections but failing to raise others will not preserve all the objections a party may have.” Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir.1991) (internal quotation marks and citations omitted).

Alspaugh did not receive the report and recommendation in a way that allowed timely objections. Nonetheless, he eventually filed two sets of objections, and, while the first set was more general, the second set was specific. And though the second set was not titled correctly, we have previously held pro se “pleadings are held to a less stringent standard than those prepared by an attorney.” Urbina v. Thoms, 270 F.3d 292, 295 (6th Cir.2001). Further, the untimely nature of his objections does not bar his appeal, because “[we] may excuse the default in the interest of justice,” Kent v. Johnson, 821 F.2d 1220, 1223 (6th Cir.1987), and Alspaugh made every effort possible to respond in a timely manner.

III.

Alspaugh argues the district court erred by prematurely granting summary judgment in favor of the state defendants without first allowing him to conduct any discovery against them on the excessive force and deliberate indifference claims.

We “review[ ] for abuse of discretion a claim that summary judgment was prematurely entered because additional discovery was needed.” Vance v. United States, 90 F.3d 1145, 1149 (6th Cir.1996). “ If the non-movant makes a proper and timely showing of a need for discovery, the district court's entry of summary judgment without permitting him to conduct any discovery at all will constitute an abuse of discretion.” Id. (citing White's Landing Fisheries, Inc. v. Buchholzer, 29 F.3d 229, 231–32 (6th Cir.1994)); see also CenTra, Inc. v. Estrin, 538 F.3d 402, 420 (6th Cir.2008) (“Typically, when the parties have no opportunity for discovery, denying the Rule 56(f) motion and ruling on a summary judgment motion is likely to be an abuse of discretion.”). This rule transcends the five-factor approach typically applied in determining whether a district court abused its discretion by allowing insufficient discovery. CenTra, 538 F.3d at 419–20.¹

“However, as a general matter we have upheld the denial of Rule 56(f) motions when the court deems as too vague the affidavits submitted in support of the motion.” Id. at 420. We also uphold denial of discovery where “further discovery would not have changed the legal and factual deficiencies.” Id. (internal citations and quotation marks omitted).

The state defendants concede that Alspaugh was never given the opportunity to conduct discovery. After Alspaugh filed his first request for production, the district court issued a stay premised on Alspaugh's potential failure to exhaust...