Cummings v. Klee, Case No.: 14-10957
| Decision Date | 19 August 2018 |
| Docket Number | Case No.: 14-10957 |
| Parties | WALTER CUMMINGS, Plaintiff, v. PAUL KLEE et al, Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
Plaintiff, an inmate currently in the custody of the Michigan Department of Corrections, brings this action, pro se, under 42 U.S.C. § 1983, claiming a violation of his rights under the United States Constitution against defendants Klee, McRoberts, McConnel, and Campbell. (Dkt. 1). On February 10, 2016, this case was referred to the undersigned for all pretrial purposes. (Dkt. 46). On March 26, 2015, the Court adopted in part a Report and Recommendation granting in part, denying in part defendants' Klee, McRoberts, McConnel, and Campbell's motion for summary judgment. (Dkt. 42). On February 15, 2017, with leave of the Court, plaintiff filed an Amended Complaint adding defendants Thompson, Pietrangelo, McIntire, Sissen, Garza, Starrs, Ellenwood, and Jindal. (Dkt. 82). On November 30, 2017, Jindal filed her motion to dismiss. (Dkt. 127). Plaintiff responded (Dkt. 135) and defendant replied (Dkt. 141). Plaintiff filed a sur-reply without leave of the Court, however, the Court will consider the sur-reply in this instance. (Dkt. 144). The undersigned ordered Jindal to respond to plaintiff's sur-reply, which she did. (Dkt. 175).
The MDOC defendants (all defendants except Jindal) filed their motion for summary judgment on April 20, 2018. (Dkt. 163). Plaintiff responded (Dkt. 173), and MDOC defendants replied (Dkt. 180).
A. Plaintiff's Amended Complaint
Plaintiff is a prisoner confined by the Michigan Department of Corrections, currently at the Earnest C. Brooks Correctional Facility. At all times relevant to the claims in his Amended Complaint he was confined at the Gus Harrison Correctional Facility. Plaintiff's Amended Complaint brings claims arising out of two events that occurred on the same day: his move to a non-accessible unit on September 26, 2013 and his treatment during and after a fall down the stairs on September 26, 2013. The factual bases of plaintiff's amended complaint are as follows. Plaintiff states that he has a mobility impairment that qualifies as a disability as defined by the Americans with Disabilities Act ("ADA"), . He has been in a wheelchair since about 2011 ("three plus years" preceding the filing of his original complaint). (Id. at ¶ 13, Dkt. 1 at ¶ 13). There is a record of his impairment in a Special Accommodations Order indicating "walker, wheelchair; distance, and attendant to assist with movement inside institution." (Id. at ¶ 11). On September 26, 2013, plaintiff was moved from a barrier-free cell to a non-accessible cell on the second floor at ARF. (Id. at Pg. ID 721, ¶¶ 15-16). Plaintiff told the "ARUS" that he could not climb the stairs, but was told to go up the stairs or go to the "hold." (Id. at ¶ 18). He tried to climb the stairs but fell down the stairs. (Id. at ¶ 19). Plaintiff injured his back and hit his head hard on the floor, which made him feel dizzy and confused. (Id. at ¶¶ 19-20). While in Health Care after the fall, defendants Campbell, McRoberts, and McConnel told plaintiff, "You should be in Hollywood, because we looked at your fall and it looked almost real." (Id. at ¶ 21). Defendants Campbell and McRoberts then told him to get off the examination table and get into his wheelchair, although health care staff had not told plaintiff to leave. Plaintiff informed these defendants that he could not get up due to the injury to his head from the fall. (Id. at ¶¶ 22-24).
Defendants Campbell and McRoberts told McConnel to remove plaintiff from the examination table. McConnel called corrections officers (defendants Thompson, Pietrangelo, McIntire, Sissen, Garza, and Starrs) to remove plaintiff.(Id. at ¶ 26). Defendants Thompson and McIntire, and non-defendant Guajardo1 pulled him from the table to the floor and tried to place him in his wheelchair, but because of the pain he could not sit up-right in the chair. (Id. at ¶ 29). When these defendants could not get him in the wheelchair they threw him to the floor, placed their knees on his head, neck, and lower back, and handcuffed him. (Id. at ¶ 30). Defendant Starrs pointed a Taser gun at plaintiff and defendants Thompson and McIntire picked him up by his handcuffed arms and dragged him from the emergency room to segregation. (Id. at ¶ 32). To remove the handcuffs, Thompson and Sissen placed a shield on his injured back and head, and cut off his clothing leaving him naked even though he urinated on himself. (Id. at ¶¶ 34-35). In the five hours that plaintiff was lying on his face in the cell, defendants Ellenwood, Jindal, and non-defendant Guajardo, did nothing to aid plaintiff. (Id. at ¶ 37).
Plaintiff claims that Klee, Campbell, McRoberts, and McConnel showed reckless disregard for his safety when they failed to act reasonably in response to danger. (Id. at ¶ 42). These four defendants knew of and disregarded an "excessive risk" to plaintiff's health and safety, and were aware of facts fromwhich the inference could be drawn that a substantial risk of serious harm existed. (Id. at ¶ 43). According to plaintiff, all defendants exposed plaintiff to conditions that posed an unreasonable risk of damage to his "future health." (Id. at ¶ 44). Plaintiff discussed his fall down the stairs with defendant Ellenwood who said she did not "call custody" to remove him from the emergency room, and that she was still treating him. (Id. at ¶ 45). According to plaintiff, defendants Campbell, McRoberts, McConnel, Thompson, Pietrangelo, McIntire, Sissen, Garza, and Starrs used unnecessary and excessive force. (Id. at ¶ 46). Plaintiff also states that it was cruel and unusual punishment for Klee, Campbell, McRoberts, McConnel, Ellenwood, and Jindal to remove plaintiff with excessive force.2 (Id. at ¶ 53).
Regarding defendant Klee, plaintiff states that Klee made materially false statements in his Step Two response to plaintiff's ARF 2013-10-2828-26A grievance, which affected the course and outcome of the grievance proceedings. Klee's statements were a part of a conspiracy to cover up for his deputy wardens. Further, Klee received two formal complaints from plaintiff about the danger of being confined in a non-accessible unit. (Id. at ¶ 47-48). He also alleges that defendants Klee, Campbell, McRoberts, McConnel, Ellenwood, and Jindalconspired to harm and intimidate plaintiff by failing to provide medical attention in deliberate indifference to plaintiff's medical needs. (Id. at ¶ 50).
Plaintiff further claims that defendants Klee, Campbell, McRoberts, McConnel, and Jindal violated plaintiff's First Amendment rights for retaliating against plaintiff in a variety of ways, including taking all the funds in plaintiff's account, interfering with his legal papers, placing plaintiff in segregation, transferring him to a different cell in violation of the ADA, threatening him for making reports, complaints, and grievances about prison conditions. (Id. at ¶ 52).
Plaintiff states that all of the defendants knew he—a 68 year old inmate who needs the use of a wheelchair—was forced to crawl up and down the stairs from September 26, 2013 to January 22, 2014 on a daily basis, and that an unreasonable risk of harm to plaintiff was obvious. The defendants thus violated the Eighth Amendment by disregarding the known risk, and violated the ADA. (Id. at ¶ 55).
As to defendant Ellenwood, plaintiff asserts that Ellenwood provided "grossly inadequate treatment" and made medical decisions without specialized training for spinal problems. (Id. at ¶ 59). Regarding Jindal, plaintiff states that she had knowledge of plaintiff's medical problems through medical records, grievances, and a written letter before September 26, 2013. Plaintiff brings a medical malpractice claim against Jindal and Ellenwood, stating that they did not inquire into essential facts necessary to make a professional judgment; they did notconduct an adequate examination; they were not qualified to exercise judgment about plaintiff's spinal or head problems; they did not conduct tests that his symptoms called for; and they did not exercise ordinary knowledge, skill, and care. (Id. at ¶ 64, 66).
Plaintiff sues all defendants in their personal and official capacities. (Dkt. 82, Pg. ID 716-17).
When a party files a motion for summary judgment, it must be granted "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). "A party asserting that a fact cannot be or is genuinely disputed must support that assertion by: (A) citing to particular parts of materials in the record...; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact."Fed.R.Civ.P. 56(c)(1). The standard for determining whether summary judgment is appropriate is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." State Farm Fire & Cas. Co. v. McGowan, 421 F.3d 433, 436 (6th Cir. 2005) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). Furthermore, the evidence and all reasonable inferences must be construed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Where the movant establishes the lack of a...
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