Hopson v. Bumgardner

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

PEYTON HOPSON, : Case No. 2:23-cv-951

:

Plaintiff, :

: District Judge Algenon L. Marbley

vs. :

Magistrate Judge Peter B. Silvain, Jr.

:

MICHELLE BUMGARDNER, :

:

Defendant. :

:

REPORT AND RECOMMENDATIONS1

Plaintiff Peyton Hopson, a state inmate who is proceeding without the assistance of

counsel, brings this action under 42 U.S.C. § 1983, alleging that Defendant Michelle Bumgardner

denied him medical treatment in violation of the Eighth Amendment to the United States

Constitution. This matter is before the Court upon Defendant’s Motion for Summary Judgment

(Doc. #29), Plaintiff’s Objections to Defendant’s Motion (Doc. #38), Defendant’s Reply (Doc.

#40), and Plaintiff’s Sur-Reply (Doc. #42).

I. BACKGROUND

A. Plaintiff’s Complaint

In his Complaint, Plaintiff alleges that on March 15, 2022, nursing staff assessed him for

an injury to his right knee. (Doc. #1, PageID #6). The nursing staff provided Tylenol and

ibuprofen, an ace bandage, and ordered x-rays. Id. According to Plaintiff, on June 9, 2022, before

he received the x-ray results, his right knee popped while he was walking. Id. Plaintiff alleges

that after sending two medical kites reporting that his knee popped and he was experiencing severe

1 Attached is a NOTICE to the parties regarding objections to this Report and Recommendations.

pain, Defendant Nurse Bumgardner—without examining his knee or taking new x-rays—informed

Plaintiff he had arthritis in his knee and provided him a knee sleeve as well as additional Tylenol

and ibuprofen. Id. at 7, 11. According to Plaintiff, Defendant’s assessment was based on the x-

rays taken before his knee “popped (dislocated) out of place.” Id. at 9. Although Plaintiff

requested a cane and medical lay-in from work, Defendant denied his requests. Id. at 7, 11.

Plaintiff further alleges that he is Hepatitis C (“HCV”) positive, and “HCV and Rheumatic

Disease are well known to go hand in hand.” Id. at 11. According to Plaintiff, on December 5,

2022, he “attempted to present medical information to [Defendant] from John Hopkins Hospital

concerning the correlation between HCV and the bone and muscle damage to his knee.” Id. at 12.

However, Plaintiff alleges that Defendant became “agitated and irate” and called for additional

medical staff “in an attempt to stage a scene that suggested that [Plaintiff] was somehow acting

aggressively towards her by presenting medical research refuting her opinion that HCV has

nothing to do with the bone and muscle damage of his knee.” Id.

In sum, Plaintiff contends,

[Defendant] left [him] with an unexamined dislocated knee; gave

[him] a knee sleeve and painkillers; [] left [him] to deal with the

severe pain of walking on a dislocated knee without the assistance

of a cane to take pressure off the knee; and, left [him] subjected to

the dangers [of] furthering the damage to his knee in the

performance of vigorous physical labor on a dislocated knee as it

was mandatory he performed his work detail duties in the food

service working on his feet … for hours at a time daily.

Id. at 11. Plaintiff asserts that Defendant was deliberately indifferent to his serious medical needs

in violation of the Eight Amendment. Id. at 7-8.

Plaintiff subsequently moved to amend his Complaint to adjust the amount of relief

requested. (Doc. #14). The Court granted Plaintiff’s Motion. (Doc. #31).

B. Medical Records

Medical records from the Ohio Department of Rehabilitation and Correction (“ODRC”)

show that on March 15, 2022, Plaintiff reported to Nurse Terry Keith that he injured his right knee

while running to the commissary line. (Doc. #29-3, PageID #263). Nurse Keith, who is not

identified as a defendant in this case, instructed Plaintiff to take acetaminophen and ibuprofen,

rest, and ice the affected area. Id. Nurse Keith also applied an elastic bandage for compression.

Id.

On June 9, 2022, Plaintiff saw Nurse Keith again for right knee pain. Id. at 259. Plaintiff

reported that he was walking on the track and his knee popped. Id. at 258. Plaintiff indicated that

since it popped, he experienced pain and swelling. Id. Nurse Keith ordered x-rays. Id.

Plaintiff underwent x-rays of his right knee on June 14, 2022. Id. at 255. The x-rays

revealed “Mild tricompartmental right knee arthrosis without radiographic evidence of an acute

bony abnormality.” Id.

On July 13, 2022, Plaintiff saw Defendant Bumgardner, Advanced Licensed Practitioner

(ALP), for a follow up regarding the x-rays. Id. at 248. After reviewing the results with Plaintiff,

Defendant instructed Plaintiff to wear a neoprene sleeve, rest, ice, and elevate his leg, take Tylenol

or ibuprofen as needed for any pain or discomfort, and exercise as tolerated. Id.

Plaintiff saw Defendant on October 24, 2022, for a chronic care follow up regarding his

liver disease and fibroscan. Id. at 232. She noted that Plaintiff had full range of motion in all four

extremities without obvious deformity. Id.

On November 29, 2022, Plaintiff reported right knee pain to Nurse Audrey Jones, who is

not a defendant in this case. Id. at 226. Nurse Jones noted that Plaintiff had no redness, swelling,

bruising, or tenderness to palpation and Plaintiff’s gait was steady. Id. at 225. Shortly thereafter,

on December 5, 2022, Plaintiff saw Defendant Bumgardner for a follow up regarding his right

knee pain. Id. at 223. Plaintiff reported that he has had pain for five to six months and, when he

walks, his “knee is critically unstable.” Id. He also told Defendant that his knee instability is from

his HCV, as it affects the joints. Id. Plaintiff requested to see a rheumatologist. Id. at 224.

Defendant noted that upon physical examination, Plaintiff’s right knee was stable, there was no

crepitus or laxity, and he was able to perform a squat without difficulty. Id. at 223. Defendant

instructed Plaintiff to continue using the knee sleeve, rest, ice, and elevate his knee, and take

Tylenol and ibuprofen as needed. Id. at 224. She “offered theraband exercises,” but Plaintiff

“refused stating he has done this.” Id. Defendant noted that she advised Plaintiff that “arthritis is

also wear and tear and may not be related his hep C.” Id. However, Plaintiff disagreed and

reiterated that his knee is critically unstable. Id. Defendant indicated that Plaintiff “began getting

frustrated stating this is from [h]is Hep C and he needs this fixed.” Id. at 223. Plaintiff stated, “I

will just have my people call Columbus.” Id. at 224.

II. STANDARD OF REVIEW

Summary judgment is appropriate “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). The party seeking summary judgment has the initial burden of informing the court of the

basis for its motion and identifying those portions of the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, that it believes demonstrate

the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106

S. Ct. 2548 (1986). Additionally, this initial burden may be satisfied by the moving party “pointing

out to the court that the [non-moving party], having had sufficient opportunity for discovery, has

no evidence to support an essential element of his or her case.” Barnhart v. Pickrel Schaeffer &

Ebeling Co., L.P.A., 12 F.3d 1382, 1389 (6th Cir. 1993).

The burden then shifts to the non-moving party, who “must set forth specific facts showing

that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)

(quoting Fed. R. Civ. P. 56(e)). Here, in opposing summary judgment, the non-moving party

cannot “simply show that there is some metaphysical doubt as to the material facts.” Matsushita

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348 (1986). Indeed,

unverified pleadings and self-serving affidavits alone are not enough to create an issue of fact

sufficient to survive summary judgment. Johnson v. Washington Cty. Career Ctr., 982 F. Supp.

2d 779, 788 (S.D. Ohio 2013) (Marbley, D.J.).

Finally, in ruling on a motion for summary judgment, the court is “not required to speculate

on which portion of the record the nonmoving party relies, nor is it obligated to wade through and

search the entire record for some specific facts that might support the nonmoving party’s claim.”

InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989), cert. denied, 494 U.S. 1091,

110 S.Ct. 1839 (1990). Thus, in determining whether a genuine issue of material fact exists on a

particular issue, the court is entitled to rely upon the Rule 56 evidence specifically called to its

attention by the parties. See id.

III. DISCUSSION

Plaintiff brings this action pursuant to 42 U.S.C. § 1983. Section 1983 provides a civil

cause of action for persons “who are deprived of any rights, privileges, or immunities secured by

the Constitution or federal laws by those acting under color of state law.” Smith v. City of Salem,

378 F.3d 566, 576 (6th Cir. 2004). In order to state a claim under § 1983, a plaintiff must allege

the violation of a right secured by the federal Constitution or laws and must show that the

deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S.

42, 48, 108 S.Ct. 2250 (1988); Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996).

Further, because § 1983 is a method for vindicating federal rights as opposed to a source of

substantive rights itself, the first step in an action under § 1983 is to identify the specific

constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807

(1994).

In this case, Plaintiff alleges that Defendant violated his constitutional rights under the

Eighth Amendment. In her Motion for Summary Judgment, Defendant asserts that there are no

genuine issues of material fact, and Defendant is entitled to judgment as a matter of law. (Doc.

#29, PageID #s 170-76). Additionally, Defendant contends that Plaintiff failed to exhaust the

administrative remedies available to him. Id. at 176-81. Finally, Defendant argues that she is

entitled to qualified immunity. Id. at 181-82. In support of her Motion, Defendant attached

Plaintiff’s medical records from ODRC. (Doc. #s 29-3, 29-4). Defendant also included the

Declaration of Joseph Murphy, the Healthcare Administrator at Belmont Correctional Institution,

who states that the medical records (Bates Stamped as DRC00001-000136; attached as Doc. #29-

3) are the complete medical records for Plaintiff from October 19, 2020, through November 9,

2023.2 (Doc. #29-2). Additionally, Defendant attached the Declaration of Karen Stanforth, an

Assistant Chief Inspector at ODRC; the grievance and communication history by and between

Plaintiff and prison officials for the period of time between March 1, 2022, and March 23, 2023;

and a copy of Plaintiff’s November 15, 2022 informal complaint, Notification of Grievance, appeal

to the Chief Inspector, and the responses from prison officials. (Doc. #29-1).

2 Defendant also attached records (Bates Stamped as DRC000137-DRC000310), which appear to the medical records

for Plaintiff from February 17, 2015, through October 18, 2020. (Doc. #29-4).

A. Exhaustion of Administrative Remedies

Defendant moves for summary judgment on the basis that Plaintiff failed to exhaust his

administrative remedies under the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e.

(Doc. #29, PageID #s 176-80). As failure to exhaust administrative remedies is “an affirmative

defense under the PLRA[,]” Defendant bears the burden of proof on this issue. Jones v. Bock, 549

U.S. 201, 216, 127 S. Ct. 910 (2007); see also Surles v. Andison, 678 F.3d 452, 455 (6th Cir. 2012)

(“[T]he failure to exhaust ‘must be established by the defendants.’”) (quoting Napier v. Laurel

Cnty, Ky. 636 F.3d 218, 225 (6th Cir. 2011)). Thus, “[w]hen the defendants in prisoner civil rights

litigation move for summary judgment on administrative exhaustion grounds, they must prove that

no reasonable jury could find that the plaintiff exhausted his administrative remedies.” Mattox v.

Edelman, 851 F.3d 583, 590 (6th Cir. 2017) (citing Surles, 678 F.3d at 455-56); see also Blissit v.

Fiquiris, 345 F. Supp. 3d 931 (S.D. Ohio 2018) (Graham, D.J.) (granting summary judgment based

upon inmate’s failure to comply with Ohio’s grievance process for excessive force claim,

discussing burden of proof).

The PLRA bars prisoners from filing federal lawsuits under 42 U.S.C. § 1983 “with respect

to prison conditions … until such administrative remedies as are available are exhausted.” 42

U.S.C. § 1997e(a). In discussing the applicability of the PLRA exhaustion requirement, the

Supreme Court has made clear that it “applies to all inmate suits about prison life, whether they

involve general circumstances or particular episodes, and whether they allege excessive force or

some other wrong.” Porter v. Nussle, 534 U.S. 516, 532, 122 S. Ct. 983 (2002). Further, such

exhaustion is “mandatory under the PLRA and unexhausted claims cannot be brought in court.”

Jones, 549 U.S. at 211.

In order “[t]o properly exhaust a claim, prisoners must tak[e] advantage of each step the

prison holds out for resolving the claim internally and by following the ‘critical procedural rules’

of the prison’s grievance process to permit prison officials to review, and, if necessary, correct the

grievance ‘on the merits’ in the first instance.” Reed-Bey v. Pramstaller, 603 F.3d 322, 324 (6th

Cir. 2010) (quoting Woodford v. Ngo, 548 U.S. 81, 90 (2006)). Proper exhaustion “demands

compliance with an agency’s deadlines and other critical procedural rules” so that the adjudicative

system can function effectively. Woodford, 548 U.S. at 90-91.

Despite this, the PLRA only requires prisoners to exhaust all “available” administrative

remedies. 42 U.S.C. § 1997e(a). Thus, if the administrative remedy is considered unavailable, the

requirement to exhaust may be excused. As such, the Supreme Court has identified three situations

where an administrative procedure is unavailable to prisoners and is therefore not subject to the

exhaustion requirement: (1) “when (despite what regulations or guidance materials may promise)

it operates as a simple dead end—with officers unable or consistently unwilling to provide any

relief to aggrieved inmates”; (2) when “some mechanism exists to provide relief, but no ordinary

prisoner can discern or navigate it” because it is “so opaque” or “so confusing”; and (3) “when

prison administrators thwart inmates from taking advantage of a grievance process through

machination, misrepresentation, or intimidation.” Ross v. Blake, 578 U.S. 632, 643-44 (2016).

The procedure established for resolving inmate complaints in Ohio is a three-step process

that is codified in Ohio Administrative Code (“O.A.C.”) § 5120-9-31(J). The first step requires

inmates to submit an informal complaint resolution (“ICR”) form to the supervisor of the

department or staff member responsible for the issue within fourteen days of the complained-of

event. O.A.C. § 5120-9-31(J)(1). “Informal complaints must contain specific information; dates,

times, places, the event giving rise to the complaint and, if applicable, the name or names of

personnel involved and the name or names of any witnesses.” O.A.C. § 5120-9-31(J). Within

seven days of receiving the informal complaint, ODRC shall provide a written response that

“reflect[s] an understanding of the inmate’s complaint, [is] responsive to the issue, cite[s] any

relevant departmental or institutional rules or policies and specif[ies] the action taken, if any.” Id.

at (J)(1). Any failure on the part of ODRC to provide such a response within the prescribed

timeframe constitutes waiver and allows the inmate to proceed to step two of the grievance

procedure. Id.

If the inmate is dissatisfied with the response to the ICR or the informal complaint process

has been waived, the inmate may proceed to step two by filing a notification of grievance (“NOG”)

with the inspector of institutional services within fourteen days of the response or waiver of the

informal complaint step. O.A.C. § 5120-9-31(J)(2). Thereafter, the inspector of institutional

services has fourteen days to provide the inmate with a written response to the notification of

grievance that “summarize[s] the inmate’s complaint, describe[s] what steps were taken to

investigate the complaint and the inspector of institutional service[s]’s findings and decision.” Id.

Upon notice to the inmate, the inspector of institutional services may extend the time to provide

such a response by up to fourteen days. Id. However, if a response has not been provided within

twenty-eight days from the receipt of the grievance, the inmate may proceed to step three of the

grievance procedure. Id.

If the inmate is dissatisfied with the disposition at step two, the inmate may proceed to step

three by submitting an appeal to the office of the chief inspector at ODRC within fourteen days of

the date of the grievance disposition. O.A.C. § 5120-9-31(J)(3). “Only issues presented in an

informal complaint or grievance may be raised in a grievance appeal. Grievance appeals shall

contain a clear, concise statement explaining the basis for the appeal.” Id. The chief inspector or

designee must provide a written response to the inmate within thirty days. Id. Decisions of the

chief inspector are final, meaning that the O.A.C. provides no further means for appeal. Id.

Additionally, “Grievance appeals concerning medical diagnosis or a specific course of treatment

shall be investigated and responded to by a health care professional.” Id.

As noted above, in support of her Motion for Summary Judgment, Defendant attached the

Declaration of Karen Stanforth, an Assistant Chief Inspector at ODRC. (Doc. #29-1, PageID #s

185-87). In her Declaration, Ms. Stanforth stated that, as part of her job duties, she handles appeals

to the ODRC Chief Inspector’s Office from inmates as set forth in step three of the grievance

procedure and is a records custodian of the records of such appeals and direct grievances from

inmates. Id. at 185. Further, Ms. Stanforth reviewed Plaintiff’s entire grievance and

communication history and attested that during the period between March 1, 2022, and March 23,

2023, Plaintiff completed the three-step grievance process once, starting with the submission of an

ICR on November 15, 2022. Id. at 186-87. Ms. Stanforth notes that although Plaintiff complained

about the treatment and care of his Hepatitis C in his ICR and NOG, he did not mention his right

knee pain or treatment by Defendant Bumgardner until his appeal to the Chief Inspector’s Office

on November 24, 2022. Id. at 197. However, even in his appeal, Plaintiff did not identify

Defendant Bumgardner and complain about the treatment and care she provided. Id. Ms. Stanforth

indicates that she attached a copy of the grievance and communication history by and between

Plaintiff and prison officials for the period of time between March 1, 2022, and March 23, 2023

(Doc. #29-1, PageID #s 188-90); and a copy of Plaintiff’s November 15, 2022 ICR, NOG, appeal

to the Chief Inspector, and the responses from prison officials (Doc. #29-1, PageID #s 191-94).

A review of the documents attached to Ms. Stanforth’s declaration reveals that Plaintiff

submitted an ICR on November 15, 2022, against Warden David W. Gray regarding Warden

Gray’s “deliberate indifference to Hopson’s serious medical need of the standard treatment for

Hepatitis C i.e. treatment without delay with direct anti-viral medications as established by the

medical community.” (Doc. #29-1, PageID #191). Plaintiff indicates in the ICR that he “delivered

additional papers to 3 House Case Manager Lucas for delivery to Inspector Haley for scanning

into this electronic Informal Complaint.” Id. However, the additional papers are not attached to

the ICR received by the Court. On November 18, 2022, Joseph Murphy responded to Plaintiff’s

ICR, indicating that based on Plaintiff’s lab work and the “Inclusion Criteria,” he found “no

supporting evidence of non-compliance with policy and protocol in [Plaintiff’s] care/treatment of

[his] Hep. C condition.” Id.

On the same day, Plaintiff filed his NOG. Id. Plaintiff wrote: “The standard of care as set

forth in the AASLD [(American Association for the Study of Liver Diseases)] guidelines is

treatment upon detection of the HCV virus. ODRC protocol is not in compliance with the

standards of the medical community.” Id. Shortly thereafter, on November 21, 2022, Patrick

Haley responded to Plaintiff’s NOG. Id. He noted that Plaintiff stated that he received insufficient

care for his Hepatitis C and his right knee. Id. However, Mr. Haley concluded that after review

of Plaintiff’s ICR, NOG, and medical records that “[t]he staff treating [Plaintiff] has performed

their duties within the guidelines of their licensure and discretion.” Id. at 191-92. Regarding

Plaintiff’s knee, Mr. Haley noted that Plaintiff was evaluated in March, June, and July 2022 and

had imaging completed in June 2022. Id. at 191. Although Plaintiff was instructed to return to

the clinic if he had continued concerns, Plaintiff did not submit any further health services requests

after his ALP evaluation. Id. Mr. Haley concluded that “Medical evaluation and treatment have

been provided per medical policy 68-MED-01, 68-MED-04 and the subsequent protocols.” Id.

On November 24, 2022, Plaintiff appealed his grievance disposition. Id. at 192. Regarding

his Hepatitis C, Plaintiff noted that the “American Association for the study of Liver Disease

jointly with the Infectious Disease Society set the community standards for the treatment of HCV

i.e., treatment without delay, post liver scarring, for all with acute or chronic H[CV] infection.”

Id. Concerning his knee injury, Plaintiff indicated that when a knee pops, it is an indication of a

dislocated knee. Id. According to Plaintiff, the standard of care requires an x-ray or MRI to

determine whether the knee cap broke or if there is damage to the cartilage or ligaments. Id.

Further, if there is damage, the injury may require surgery or to be placed in a cast or brace. Id.

Plaintiff asserted that with both his HCV and knee, the standard minimal care was not provided.

Id. On December 27, 2022, Ms. Stanforth responded to Plaintiff’s appeal, affirming the prior

decisions. Id.

In her Motion for Summary Judgment, Defendant asserts that Plaintiff failed to exhaust his

administrative remedies for two reasons. First, Defendant contends that Plaintiff’s November 15,

2022 ICR was untimely as it applies to Defendant because the ICR was submitted four months

after Defendant saw Plaintiff about his right knee. (Doc. #29, PageID #s 179-80). Moreover,

Defendant’s December 5, 2022 consultation with Plaintiff occurred after he submitted his appeal.

Id. at 180. Second, Defendant contends that Plaintiff failed to specifically mention his complaints

about Defendant or the treatment of his right knee in the November 15, 2022 ICR. Id. at 180-81.

However, as Plaintiff correctly points out, although Defendant included a copy of

Plaintiff’s ICR, NOG, appeal, and prison officials’ responses, Defendant did not include Plaintiff’s

attachments. See Doc. #29-1, PageID #191-93. Not only does Plaintiff indicate in his ICR that

he delivered papers to be scanned for his complaint, the “Admin Log” shows that six files were

attached on November 17, 2022, and Plaintiff’s “info for appeal” was attached on December 13,

2022. (Doc. #29-1, PageID #193). However, none of these documents are attached to Defendant’s

Motion. This is particularly relevant in this case because, although Plaintiff did not specifically

mention his right knee problems in either his ICR or NOG, Mr. Haley responded, “In your

grievance you state that you received insufficient care for your Hep C and your right knee.” Id. at

191. This suggests that information regarding Plaintiff’s knee could have been included in his

attachments. Accordingly, because Defendant has not presented any evidence as to what was

included in Plaintiff’s attachments to his November 15, 2022 ICR, the undersigned finds that the

record is incomplete and no decision on exhaustion can be reached as to Defendant’s treatment of

Plaintiff on July 13, 2022.3

However, to the extent that Plaintiff brings a claim against Defendant related specifically

to his December 5, 2022 consultation, Plaintiff failed to exhaust his administrative remedies.

Plaintiff did not file an ICR related to that appointment. Although Plaintiff notes that he sent a

kite regarding Defendant’s conduct, (Doc. #38-3, PageID #563), even if Plaintiff’s kite is

considered to be an ICR, Plaintiff failed to follow steps two and three of the three-step grievance

process set forth in O.A.C. § 5120-9-31(J). Further, there is no evidence that the grievance

procedure was rendered unavailable to him. Accordingly, the undersigned finds that Plaintiff

failed to exhaust his administrative remedies with respect to any claim arising out of the December

5, 2022 appointment with Defendant. For these reasons, the undersigned RECOMMENDS that

Defendant’s Motion for Summary Judgment on administrative exhaustion of Plaintiff’s December

5, 2022 consultation with Defendant be GRANTED.

3 Although Plaintiff’s ICR appears to be untimely (as it was filed more than fourteen days after his consultation with

Defendant), when prison officials waive enforcement of a procedural rule and instead consider a non-exhausted claim

on its merits, a prisoner’s failure to comply with a rule will not bar that prisoner’s subsequent federal lawsuit. See

Reed-Bey v. Pramstaller, 603 F.3d 322, 325 (6th Cir. 2010). Here, to the extent that Plaintiff’s attachments reference

treatment of his knee, the prison officials responded to Plaintiff’s complaints on the merits, rather than finding his

complaint untimely.

B. Deliberate Indifference

Defendant also asserts that she is entitled to summary judgment because “[t]here is no

evidence or material facts before the Court wherein [Plaintiff] can establish either element of his

deliberate indifference claim.” (Doc. #29, PageID #183).

“The government has an ‘obligation to provide medical care for those whom it is punishing

by incarceration.’ But mere failure to provide adequate medical care to a prisoner will not violate

the Eighth Amendment.” Rhinehart v. Scutt, 894 F.3d 721, 737 (6th Cir. 2018) (quoting Estelle v.

Gamble, 429 U.S. 97, 103, 97 S.Ct. 285 (1976)). To establish a violation of his Eighth Amendment

right resulting from a denial of medical care, Plaintiff must show that prison officials acted with

“deliberate indifference to [his] serious medical needs.” Estelle, 429 U.S. at 104; Brooks v.

Celeste, 39 F.3d 125, 127 (6th Cir. 1994). A constitutional claim for denial of medical care has

objective and subjective components. Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970

(1994); Napier v. Madison Cnty., 238 F.3d 739, 742 (6th Cir. 2001).

The objective component requires the existence of a “sufficiently serious” medical need.

Blackmore v. Kalamazoo County, 390 F.3d 890, 895 (6th Cir. 2004) (quoting Farmer, 511 U.S. at

834, 114 S.Ct. 1970; Estelle, 429 U.S. at 104, 97 S.Ct. 285). A medical need is “sufficiently

serious” if it either “has been diagnosed by a physician as mandating treatment” or “is so obvious

that even a lay person would easily recognize the necessity for a doctor’s attention.” Gunther v.

Castineta, 561 F. App’x 497, 499 (6th Cir. 2014) (quoting Harrison v. Ash, 539 F.3d 510, 518 (6th

Cir. 2008)). When an inmate has a medical need that has been diagnosed by a physician as

mandating treatment, “the plaintiff can establish the objective component by showing that the

prison failed to provide treatment, Blackmore, 390 F.3d at 897 (quoting Gaudreault v. Municipality

of Salem, 923 F.2d 203, 208 (1st Cir. 1990)), or that it provided treatment ‘so cursory as to amount

to no treatment at all[.]’” Rhinehart, 894 F.3d at 737 (quoting Dominguez v. Correctional Med.

Servs., 555 F.3d 543, 551 (6th Cir. 2009)). However, when an inmate has received ongoing

treatment for his condition and claims that the treatment was inadequate, the objective component

requires a showing of care “‘so grossly incompetent’ or so grossly ‘inadequate’ as to ‘shock the

conscience’ or ‘be intolerable to fundamental fairness.’” Phillips v. Tangilag, 14 F.4th 524, 534-

35 (6th Cir. 2021) (quoting Rhinehart, 894 F.3d at 737). “The plaintiff must present enough

evidence for a factfinder to evaluate the adequacy of the treatment provided and the severity of the

harm caused by the allegedly inadequate treatment.” Rhinehart, 894 F.3d at 737. See also

Santiago v. Ringle, 734 F.3d 585, 590 (6th Cir. 2013) (“If the plaintiff’s claim, however, is based

on the prison’s failure to treat a condition adequately... the plaintiff must place verifying medical

evidence in the record to establish the detrimental effect of the delay in medical treatment.”

(internal quotation marks and citation omitted)).

The subjective component requires an inmate to show that prison officials had “a

sufficiently culpable state of mind” in denying medical care. Farmer, 511 U.S. at 834, 114 S.Ct.

1970. “[T]he 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.” Gunther, 561 F.

App’x at 500 (quoting Harrison, 539 F.3d at 518). “Knowledge of the asserted serious needs or

of circumstances clearly indicating the existence of such needs, is essential to a finding of

deliberate indifference.” Horn v. Madison Cnty. Fiscal Court, 22 F.3d 653, 660 (6th Cir. 1994).

In sum, to prove the subjective component, the plaintiff must show that the official: (a) subjectively

knew of a risk to the prisoner’s health: (b) drew the inference that a substantial risk of harm to the

prisoner existed; and (c) consciously disregarded that risk. Farmer, 511 U.S. at 837, 114 S.Ct.

1970.

In this case, the parties both acknowledge that Plaintiff has right knee pain. (Doc. #38,

PageID #534); (Doc. #29, PageID #172). They also recognize, and the medical records show, that

Plaintiff has obtained treatment—including examinations, an x-ray, a knee sleeve, and over-the-

counter pain medications—for his right knee pain. See Doc. #29-3, PageID #s 223-24, 248, 255.

However, Plaintiff challenges the adequacy of the care he received, insisting that there is a link

between his right knee pain and HCV that mandates referral to a specialist. (Doc. #38, PageID #s

535-37). In support, Plaintiff attached a fact sheet on “HCV and Rheumatic Disease” from the

American College of Rheumatology. (Doc. #38-2). He contends the fact sheet “establishes the

community standard for the treatment of HCV-related diseases[,]” and constitutes “verifying

medical evidence” supporting his argument that Defendant provided grossly inadequate medical

care. (Doc. #38, PageID #535).

Although Plaintiff asserts that Defendant should have referred him to a specialist for

treatment of his right knee condition, (Doc. #38, PageID #537), Plaintiff’s “desire for additional

or different treatment does not by itself suffice to support an Eighth Amendment claim.” Anthony

v. Swanson, 701 F. App’x 460, 464 (6th Cir. 2017) (citing Mitchell v. Hininger, 553 F. App’x 602,

605 (6th Cir. 2014); Alspaugh v. McConnell, 643 F.3d 162, 169 (6th Cir. 2011) (“Where a prisoner

alleges only that the medical care he received was inadequate, ‘federal courts are generally

reluctant to second guess medical judgments.’”)); see also Robinson v. Knack, No. 2:18-CV-9,

2019 WL 5275531, at *3 (W.D. Mich. Aug. 26, 2019), report and recommendation adopted, 2019

WL 4743864 (W.D. Mich. Sept. 30, 2019) (citing Sanderfer v. Nichols, 62 F.3d 151, 154-55 (6th

Cir. 1995); Ward v. Smith, No. 95-6666, 1996 WL 627724, at *1 (6th Cir. Oct. 29, 1996))

(“[D]ifferences in judgment between an inmate and prison medical personnel regarding the

appropriate medical diagnoses or treatment are not enough to state a deliberate indifference

claim.”). Moreover, when a plaintiff claims that he was denied or delayed in receiving a specific

type of medical treatment, the Sixth Circuit has held that the plaintiff “must present a medical

expert who can speak to the necessity of such a treatment and evaluate it vis-à-vis the treatment he

received.” Anthony, 701 F. App’x at 464; see Blosser v. Gilbert, 422 F. App’x 453, 460 (6th Cir.

2011).

Here, Plaintiff failed to provide expert medical testimony—either in the form of an

affidavit or through depositions—showing either the medical necessity of seeing a specialist or the

detrimental effect of his alleged inadequate treatment. See Phillips, 14 F.4th at 536 (citations

omitted) (“[The plaintiff] needed to present expert medical evidence describing what a competent

doctor would have done and why the chosen course was not just incompetent but grossly so.”).

Plaintiff’s failure to present such evidence means that he cannot satisfy the objective component

of his deliberate indifference claim. Blosser, 422 F. App’x at 460; Anthony, 701 F. App’x at 464.

Contrary to Plaintiff’s argument that his claim is similar to that of the plaintiff in Chibbaro

v. Everett, 2022 WL 4299715 (M.D. Tenn. Sept. 19, 2022), there are significant differences

between the two. In Chibbaro, the court found that the medical documentation showed that the

plaintiff had an intolerance to an antibiotic medication, the defendant prescribed that medication,

the plaintiff experienced a reaction, and, after the defendant refused to treat the plaintiff, another

individual prescribed medication for the symptoms attributable to that reaction. Id. at *4. The

court concluded that the medical documentation, combined with the plaintiff’s account of her

experience, was sufficient to permit the inference that her condition was serious enough to give

rise to liability. Id. In contrast, in this case, the medical record shows that Plaintiff has right knee

arthrosis (Doc. #29-3, PageID #255), and Defendant provided treatment, including examinations,

an x-ray, a knee sleeve, and over-the-counter pain medications. (Doc. #29-3, PageID #s 223-24,

248, 255). The medical record also shows that Plaintiff has HCV. Id. at 198. However, the

medical record does not establish that Plaintiff’s right knee pain is caused by or has any connection

to his HCV, nor does it show the medical necessity of seeing a specialist or any alleged detrimental

effects of Defendant’s treatment. Given the complexity of Plaintiff’s diagnoses and his allegations

regarding the connection between the two, the Court “lacks the requisite medical expertise to

properly evaluate whether [Plaintiff’s] claim has merit.” Anthony, 701 F. App’x at 464. Therefore,

to succeed on his claim, Plaintiff must present a medical expert who can speak to the necessity of

a referral to a specialist and detrimental effect of Defendant’s treatment. Plaintiff has not presented

any such medical testimony. Accordingly, Defendant is entitled to judgment as a matter of law.4

It is therefore RECOMMENDED that Defendant’s Motion for Summary Judgment be

GRANTED.

C. Qualified Immunity

Defendant also contends that he is entitled to summary judgment on the issue of qualified

immunity for Plaintiff’s claims of deliberate indifference. (Doc. #29, PageID #s 181-82).

Qualified immunity protects government officials “from liability for civil damages insofar as their

conduct does not violate clearly established statutory or constitutional rights of which a reasonable

person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727 (1982). In

so doing, “qualified immunity balances two important interests—the need to hold public officials

accountable when they exercise power irresponsibly and the need to shield officials from

harassment, distraction, and liability when they perform their duties reasonably.” Pearson v.

Callahan, 555 U.S. 223, 231, 129 S.Ct. 808 (2009).

4 As Plaintiff is unable to prove the objective component of his claim, this Court need not consider the subjective

component of his claim. Phillips, 14 F.4th at 535 (“Only if a prisoner proves this objective element must courts

consider the second (subjective) part of the deliberate-indifference test.”).

A governmental official is entitled to immunity if the facts alleged do not make out a

violation of a constitutional right, or if the alleged constitutional right was not clearly established

at the time of the defendant’s alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 129 S. Ct.

808 (2009). Additionally, while a defendant bears the initial burden of pleading the defense of

qualified immunity, it is the plaintiff who “bears the ultimate burden of proof to show that

[government officials] are not entitled to qualified immunity.” Cockrell v. City of Cincinnati, 468

F. App’x 491, 494 (6th Cir. 2012) (quoting Garretson v. City of Madison Heights, 407 F.3d 789,

798 (6th Cir. 2005)).

Defendant maintains that she is entitled to qualified immunity on Plaintiff’s claim. (Doc.

#29, PageID #182). Thus, the burden shifts to Plaintiff to establish that Defendant is not entitled

to this defense. However, as explained above, Plaintiff has failed to demonstrate that his

constitutional rights have been violated, even when viewed in the light most favorable to him. As

such, Plaintiff is unable to carry his burden to show that Defendant is not entitled to qualified

immunity.

Accordingly, the undersigned RECOMMENDS that the Court find that Defendant is

immune from Plaintiff’s deliberate indifference claim.

IT IS THEREFORE RECOMMENDED THAT:

Defendant’s Motion for Summary Judgment (Doc. #29) be GRANTED.

January 15, 2025 s/Peter B. Silvain, Jr.

Peter B. Silvain, Jr.

United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections

to the proposed findings and recommendations within FOURTEEN days after being served with

this Report and Recommendations. Such objections shall specify the portions of the Report

objected to and shall be accompanied by a memorandum of law in support of the objections. If

the Report and Recommendation is based in whole or in part upon matters occurring of record at

an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or

such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless

the assigned District Judge otherwise directs. A party may respond to another party’s objections

within FOURTEEN days after being served with a copy thereof.

Failure to make objections in accordance with this procedure may forfeit rights on appeal.

See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir.

1981).