Cox v. Jackson
| Decision Date | 29 September 2008 |
| Docket Number | No. 06-CV-13407-DT.,06-CV-13407-DT. |
| Citation | 579 F.Supp.2d 831 |
| Parties | Kenneth COX, Jr., Plaintiff, v. Andrew JACKSON, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
Kenneth Cox, Jr., Detroit, MI, pro se.
Christine M. Campbell, MI Dept. of Atty. Gen., Lansing, MI, David B. Mammel, Ronald W. Chapman, Chapman Assoc., Bloomfield Hills, MI, for Defendants.
ORDER (1) ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, (2) GRANTING, IN PART, AND DENYING, IN PART, THE MDOC DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, (3) GRANTING DEFENDANT CMC'S MOTION TO DISMISS, AND (4) DENYING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION
This Section 1983 prisoner civil rights matter has come before the Court on the August 28, 2008 Report and Recommendation of United States Magistrate Judge Paul J. Komives, as corrected on September 22, 2008,1 recommending that the Court (1) grant, in part, and deny, in part, the Motion for Summary Judgment filed by Defendants Howard, Steward, White, Pramstallar, Burton, Palmer, Dingeldey, Ball, Yokom, Nobles, Jeffries and the Michigan Department of Corrections (the "MDOC Defendants") (2) grant Defendant Correctional Medical Service ("CMC")'s Motion to Dismiss, and (3) deny Plaintiff's motion for a preliminary injunction. Plaintiff and Defendants have timely filed objections to the R & R. The Court has reviewed the Report and Recommendation, Plaintiff's Objections, and the Court's entire file of this action, and has concluded that these motions should be disposed of as recommended by the Magistrate Judge.
NOW, THEREFORE,
IT IS HEREBY ORDERED that the Magistrate Judge's Report and Recommendation of August 28, 2008, as corrected by the Corrected Report and Recommendation of September 22, 2008 [Dkt. Nos. 58 and 62], be, and hereby is, adopted by this Court.
IT IS FURTHER ORDERED that, for the reasons set forth in the Report and Recommendation, the MDOC Defendants' Motion for Summary Judgment [Dkt. # 31] is GRANTED, in part, and DENIED, in part. Defendants' Motion is GRANTED as to all of Plaintiff's claims against the MDOC Defendants except his Eighth Amendment claim against Defendant Pramstallar relating to his hernia. With respect to this latter claim, the MDOC's Motion is DENIED.2
IT IS FURTHER ORDERED that Defendant CMS's Motion to Dismiss [Dkt. # 44] is GRANTED.
IT IS FURTHER ORDERED that Plaintiff's Motion for Preliminary Injunction [Dkt. # 6] is DENIED.
CORRECTED REPORT AND RECOMMENDATION ON: (1) DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (docket # 31); (2) DEFENDANT CORRECTIONAL MEDICAL SERVICES'S MOTION TO DISMISS (docket # 44); and (3) PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION (docket # 6)
I. RECOMMENDATION............................................................840
II. REPORT....................................................................840
A. Background ............................................................840
B. MDOC Defendants' Motion for Summary Judgment...........................842
1. Summary Judgment Standard...........................................842
2. Claims against MDOC (Eleventh Amendment)............................843
3. Claims Against Defendant Pramstallar (Res Judicata/Collateral
Estoppel) .......................................................844
4. Eighth Amendment Claims.............................................845
a. Eighth Amendment Standard.................................................845
b. Defendant Howard's Failure to Authorize a White Cane......................847
c. Defendant Powell's Failure to Provide a Reading and Writing
Assistant...............................................................847
d. Defendant Burton's Failure to Permit Early Meal Detail....................847
5. Retaliation/Grievance/Access to Courts Claims.......................848
a. Retaliation...............................................................848
b. Access to Courts..........................................................848
c. Defendant White's Handling of Plaintiffs Grievances.......................850
6. ADA Claims .........................................................850
C. Defendant CMS's Motion to Dismiss......................................851
1. Constitutional Claims...............................................851
2. ADA Claims .........................................................852
D. Plaintiff's Motion for Preliminary Injunction .........................853
1. Legal Standard......................................................853
2. Analysis............................................................854
E. Conclusion ............................................................855
III. NOTICE TO PARTIES REGARDING OBJECTIONS...................................855
I. RECOMMENDATION: The Court should grant in part and deny in part the MDOC defendants' motion for summary judgment, grant defendant CMS's motion to dismiss, and deny plaintiff's motion for preliminary injunction.
II. REPORT:
A. Background
Plaintiff Kenneth Gerald Cox is a state prisoner who, at the times relevant to this action, was incarcerated at the Mound Road and Riverside Correctional Facilities. Plaintiff commenced this action on July 27, 2006, by filing a pro se civil rights complaint pursuant to 42 U.S.C. § 1983. Plaintiff's complaint raises claims of deliberate indifference to his medical needs in violation of the Eighth Amendment and retaliation in violation of the First Amendment. Plaintiff also appears to assert claims under the Americans with Disabilities Act (ADA). Specifically, plaintiff alleges:
Plaintiff Cox arrived at the Reception and Guidance Center (R & GC) in Jackson, Michigan, on or about March 6, 2001. In April of that year he was given an eye exam at Duane Waters (Prison) Hospital Eye Clinic, because he is an insulin dependent diabetic. The Optometrist who conduct the exam informed him that blood vessels were ruptured at the backs of both eyes. An appointment was scheduled with Dr. Dastair, a specialist who is not named in this lawsuit but who may be called as a witness in this and another pending lawsuit. Dr. Dastair performed laser surgery on both eyes, several times each, during the months of May and July, 2001.
Due to deliberate indifference of MDOC Health Care staff at several prison facilities since the onset of treatment in May of 2001, Plaintiff is now legally blind. He filed a lawsuit pursuant to 42 U.S.C. § 1983. That case is pending in docket no. 1:06-cv-10350. [1]
Plaintiff has suffered violations to his U.S. Constitutional rights by various Corrections personnel, in addition to the neglect Plaintiff has suffered at the hands of health care staff, and he continues to suffer. This lawsuit addresses the constitutional violations that have occurred since he filed the first lawsuit. Each Defendant involved herein has acted with deliberate indifference to Plaintiff's needs and rights under the First and/or Eighth Amendments to the United States Constitution and/or American[s] with Disabilities Act (ADA). In many cases Defendants have demonstrated that their actions are in retaliation for Plaintiff having filed the original lawsuit and/or grievances he has written. Each Defendant has acted under color of state law.
Compl., at 1-2.
Plaintiff's complaint then lists 22 separate defendants, with a brief statement relating to each defendant's role in the alleged deprivation of plaintiff's constitutional rights. Defendants are: Mound Correctional Facility (NRF) Warden Andrew Jackson; NRF Deputy Warden Scott Nobles; NRF Assistant Deputy Warden Cornell Howard; NRF Assistant Deputy Warden Darrell Stewart; NRF Grievance Coordinator Stanley White; NRF Classification Director Jeffries; NRF Resident Unit Manager Clarence Powell; NRF Health Care Unit Manager Ruth Ingram; NRF Nurse Supervisor Justina Nzums; Dr. Seetha Vadlamudi; Dr. George Pramstaller, Chief Medical Officer for the Bureau of Health Care Services; Cheryl Worthy, dietician at NRF; Correctional Officer Burton; Riverside Correctional Facility (RCF) Warden Carmen Palmer; RCF Deputy Warden Dingelday; RCF Assistant Deputy Warden Gary Ball; RCF Health Unit Manager Karmen Blount; Ms. Black, Classification Director at RCF; Dave DeGraff, Health Care Nursing Supervisor at RCF; RCF Transfer Coordinator Yokom; Correctional Medical Services, Inc. ("CMS"); and the Michigan Department of Corrections ("MDOC").
Plaintiff has also attached to his complaint a number of grievances against these defendants. It appears that plaintiff seeks to incorporate by reference the claims made in those grievances. Construed liberally, these grievances raise the following specific claims beyond the general claims of deliberate indifference and retaliation set forth in the body of the complaint:
• deliberate indifference by defendant Howard for failing to timely provide a white cane per his medical accommodation (Grievance No. NRF 05-06-695-06E);
• deliberate indifference by defendants Jackson, Powell, and MDOC for failing to honor his medical accommodation for reading and writing assistance (Grievance No. NRF 05-09-1078-17Z);
• violation of the ADA by defendant Jeffries for failing to provide plaintiff with an appropriate prison job (Grievance No. NRF 05-09-1133-06E);
• deliberate indifference by defendants Vadlamudi and CMS in the provision of health care to plaintiff (Grievance No. NRF 05-09-1129-12D3);
• deliberate indifference by defendants MDOC, Jackson, Steward, Pramstallar, Ingram,...
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