Ellis v. Vadlamudi, 07-10773.

• Decision Date: 10 July 2008
• Docket Number: No. 07-10773.,07-10773.
• Citation: 568 F.Supp.2d 778
• Parties: Donald ELLIS, Plaintiff, v. Seeth VADLAMUDI, Naomi Smith-Gladney, C. Beasley, Sonya Green, and D. Moore, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

568 F.Supp.2d 778

Donald ELLIS, Plaintiff, v. Seeth VADLAMUDI, Naomi Smith-Gladney, C. Beasley, Sonya Green, and D. Moore, Defendants.

No. 07-10773.

United States District Court, E.D. Michigan, Southern Division.

July 10, 2008.

Donald Ellis, Ionia, MI, pro se.

A. Peter Govorchin, Michigan Department of Attorney General, Lansing, MI, for Defendants.

ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, OVERRULING DEFENDANTS' OBJECTIONS, AND DENYING DEFENDANTS' MOTION TO DISMISS

DAVID M. LAWSON, District Judge.

This matter is before the Court on the defendants' objections to a report filed by Magistrate Judge Charles E. Binder recommending that the defendants' motion to dismiss be denied. The plaintiff is a prisoner in the custody of the Michigan Department of Corrections, who has filed a complaint alleging, among other things, that the defendants were deliberately indifferent to his serious medical needs. He contends that the defendants have failed to treat the chronic pain that results from several diagnosed conditions, and he now has been rendered immobile and confined to a wheelchair. He also alleges conspiracy. The defendants contend that the plaintiff failed to exhaust his administrative remedies as required by 42 U.S.C. § 1997e(a), and his complaint should be dismissed. The case was referred to Judge Binder to conduct all pretrial proceedings. On November 19, 2007, Judge Binder filed a report recommending that the motion to dismiss be denied. The defendants filed timely objections. The Court has reviewed the file, the report and recommendation, the defendants' objections, and has made a de novo review of the record in light of the parties' submissions. The Court now concludes that the plaintiff filed a timely grievance against all the defendants alleging an ongoing conspiracy to deprive him of medical treatment that addressed his complaints of intractable pain, he pursued his grievance through all the required steps, and therefore he exhausted his administrative remedies. The Court will adopt the magistrate judge's report in most respects and deny the motion to dismiss.

I.

A.

The events about which plaintiff Donald Ellis complains occurred when he was incarcerated at Mound Correctional Facility in Detroit, Michigan. According to his complaint filed in this court on February 22, 2007, the plaintiff has been diagnosed with a variety of medical disorders over the years, including sarcoidosis of the lungs in 1994, chronic prostatitis in 1998, and degenerative joint disease in 2004.

In 2004, the plaintiff says he began to experience severe pain in his lower back and abdominal area. In that same year, he alleges that he complained about this pain to defendant Dorothy Moore, a registered nurse in the Mound Correctional Facility health care department, and to other unnamed nurses who advised him to take aspirin and lay down. In 2005 and 2006, the plaintiff complained about his pain to defendants Naomi Smith-Gladney, Christine Beasley and Sonya Greene, nurses employed by the prison, who also told him to take aspirin and lay down. The plaintiff alleges that he requested medical care for his pain "several" times, and he had to wait "several months" before he saw a physician. Compl. ¶ 26. The plaintiff finally saw defendant Seetha Vadlamudi, a prison physician, on two occasions in 2005 and 2006. Defendant Vadlamudi prescribed Tylenol during their first meeting and Motrin during the second. The plaintiff complains that Dr. Vadlamudi did not properly treat his pain.

The plaintiff contends that his medical condition now "affect[s] everything [the plaintiff does] from standing, walking, laying down, and using the rest room for bodily functions." Aff. of Donald Ellis ¶ 2. He alleges that, due to the defendants' conduct, he "is confined in a prison setting under conditions that impose[] a significant risk to his health and safety as no medical treatment has been provided for his medical need[s]," Compl. ¶ 29, and he was "subjected . . . to increased pain in his lower back and abdomen causing him to become confined to a wheel chair for mobility," Compl. ¶ 31. By February 11, 2007, the plaintiff was receiving treatment at Duane L. Waters hospital from a Doctor Rawals. Aff. of Donald Ellis ¶¶ 4-5. He states that he receives treatment from the hospital three times each week, but that the transport to the hospital now causes him "pain and suffering." Id. at ¶ 4.

On June 5, 2006, the plaintiff submitted a grievance to the Michigan Department of Corrections. Originally he wrote "Ongoing" as the "date of incident," but someone later wrote "5-30-06" on the form. The plaintiff complains that he "do[es] not have access to Health Care Staff as they do not respond to my medical kites requesting treatment or medical assistance." He continues:

DELIBERATE INDIFFERENCE TO MY SERIOUS MEDICAL NEEDS AND A RISK TO FUTURE HARM

This grievance is submitted against NRF Health Care Personnel employed from July 2005, to June 2006, To Wit: Nurse Gladny; Nurse Beasley, Jane Doe Nurse-1, Jane Doe Nurse-2, and Doctor Vadlamudi. This is so because I have complained about severe abdomen and lower back pain since 2004, but I have yet to receive treatment for the pain which is getting worse. . . . The delay in providing treatment subjects me to a serious risk of future harm to my person because my condition can cause severe damage to those body parts affected by the medical ailments. I hereby request that I be seen immediately by health care and a medical program be provided to estop [sic] the pain and sufferings [sic] I have underwent since 2004. The pain is so intense is causes my legs and, buttocks areas to go numb.

Compl. Ex. A.

After receiving no response from the Step I level, the plaintiff appealed to Step II on July 6, 2006. On August 16, 2006, Karri Osterhout, Administrative Assistant for Region III Health Care Administration, found that "[e]vidence supports [the prisoner's] claim that there was a delay in treatment for [the prisoner's] abdominal and lower back pain. Due to the nature of this complaint, this case will be referred to quality improvement for review." Compl. Ex. C. The response also summarized its investigation into the factual background of the plaintiffs complaint:

Review of the medical record relating to your abdominal and lower back pain reveals: 8/3/05 MSP exam for chronic abdominal and lower back pain (labs and x-ray ordered; Motrin prescribed); 6/6/06 MSP exam for lower back pain and numbness and tingling in right leg (reordered x-ray, labs ordered and Tylenol given for pain); 6/13/06 X-ray Lumbar spine (advanced degenerative disk changes at L3-4 level with arthritis noted of these vertebral bodies; mild diffuse facet joint arthritic changes seen throughout the lumbar spine); 6/24/06 Kite concern—lower back pain and numbness in hips and legs; 6/30/06 MSP Chart Review (Motrin prescribed for pain; follow up after labs and x-rays); 7/8/06 MSP exam (x-ray reviewed; MSP ordered additional x-rays and will follow up after x-ray results); 7/11/06 X-ray PA and lateral chest (normal); 7-11-06 X-ray Lumbar spine (degenerative disk L3-4).

Ibid. The plaintiff was unsatisfied, however, and on August 25, 2006, he submitted his grievance to Step III, the highest level of appeal. On September 11, 2006, "J. Armstrong" issued the following response:

Note: "On-going" is an inappropriate entry for "Date of Incident."

Grievance alleges that he was not timely seen by the MSP for his abdominal and back pains. The Step I and II responses are affirmed. No further relief can be provided. Grievance appeal denied.

Compl. Ex. D.

The plaintiff alleges five counts in his pro se complaint, filed on February 22, 2007. Count one alleges a violation of the Fourteenth Amendment's Due Process Clause because the defendants "provided Plaintiff with drugs without first examining him for the medication and denied him treatment, medical diagnosis, and access to a medical doctor to properly diagnose and treat him." Compl. ¶ 34. Count two alleges a violation of the Eight Amendment on the ground that the defendants were deliberately indifferent to his health and prevented him from receiving medical care. Compl. ¶ 35. Count three alleges a violation of his right to receive medical care. Compl. ¶ 36. Count four alleges that the defendants conspired among themselves to deny the plaintiff treatment, "causing his condition to worsen, requiring a wheel chair." Compl. ¶ 37. Count five alleges a violation of state law, Mich. Comp. Laws § 4.202(e). He seeks an order requiring the defendants to provide him with medical treatment, and over $10,000 in damages.

B.

The defendants moved to dismiss on the ground that the plaintiff's grievance was untimely. They point to the grievances themselves—which are attached to the complaint—and to other evidence consisting of the plaintiffs medical records, and observe that the plaintiff is complaining of pain that dates back to 2004, yet he only filed a single grievance in 2006. The defendants reason that the prior incidents cannot form the basis of a lawsuit under the Prison Litigation Reform Act because the grievance is untimely.

The magistrate judge believed that the grievance was timely because the prisoner was making a complaint about an ongoing problem instead of a discrete incident. He found no Sixth Circuit precedent addressing the issue of an ongoing complaint, but he rejected the defendants' suggestion to follow the Fifth Circuit in Johnson v. Johnson, 385 F.3d 503, 519 (5th Cir.2004), which dealt with a claim against prison officials for their failure to protect the plaintiff from repeated sexual assaults. The court decided that the plaintiff had only properly exhausted those claims brought within the time period allowed by the prison for filing a grievance, and therefore any assaults that occurred before the first grievance's permissible time frame could not support the plaintiffs complaint....