Petition for Writ of Certiorari — Carl Lee Ashley, Petitioner v. Mary Boayue, et al.
Supreme Court briefMay 5, 2023
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No.
-7547
IN THE
ORIGINAL
{Supreme Court, U.S.
FILED
SUPREME COURT OF THE UNITED STATES
may-5 2023
OFFICE OF THE CLERK
Carl Lee Ashley
— PETITIONER
(Your Name)
vs.
Mary Boayue, et al
— RESPONDENT(S)
ON PETITION FOR A WRIT OF CERTIORARI TO
United States Court of Appeals for the Sixth Circuit
(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)
PETITION FOR WRIT OF CERTIORARI
Carl Lee Ashley #136985
(Your Name)
141 First Street, Lakeland Correctional Facility
(Address)
Coldwater, MI 49036
(City, State, Zip Code)
unknown
(Phone Number)
QUESTION(S) PRESENTED
DID WE ’ OOURT OF APPEALS ERR IN FINDING THAT
PETITIONER COULD NOT ESTABLISH THE OBJECTIVE PRONG
OF HIS EIGHTH AMENDMENT CLAIMS.
LIST OF PARTIES
j All parties appear in the caption of the case on the cover page.
fa] All parties do not appear in the caption of the case on the cover page. A list of
all parties to the proceeding in the court whose judgment is the subject of this
petition is as follows:
Sirena Landfair
Lana McCarthy
jKimberly Schaub
David Brazee
Don Spaulding
Mary Arends
RELATED CASES
IN THE
SUPREME COURT OF THE UNITED STATES
PETITION FOR WRIT OF CERTIORARI
Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.
OPINIONS BELOW
For cases from federal courts:
The opinion of the United States court of appeals appears at Appendix -A-----to
the petition and is
No: 22-1295 (6th Cir 2023)
J or,
pt] reported at
[ ] has been designated for publication but is not yet reported; or,
[ ] is unpublished.
to
The opinion of the United States district court appears at Appendix
the petition and is
No: 2:19-cv-10484 (E.D. Mich 2021)
; or,
3CX] reported at
[ ] has been designated for publication but is not yet reported; or,
[ ] is unpublished.
[ ] For cases from state courts:
The opinion of the highest state court to review the merits appears at
to the petition and is
Appendix
; or,
[ ] reported at
[ ] has been designated for publication but is not yet reported; or,
[ ] is unpublished.
The opinion of the —
appears at Appendix
court
to the petition and is
; or,
[ ] reported at
[ ] has been designated for publication but is not yet reported; or,
[ ] is unpublished.
1.
JURISDICTION
PC] For cases from federal courts:
The date on which the United States Court of Appeals decided my case
was
V1Q/2023___________
[ ] No petition for rehearing was timely filed in my case.
f^l A timely petition for rehearing was denied by the United States Court of
Appeals on the following date: 2/06/2023______ _______ and a copy of the
B
order denying rehearing appears at Appendix
[ ] An extension of time to file the petition for a writ of certiorari was granted
(date)
(date) on
to and including---------in Application No. —A
The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).
[ ] For cases from state courts:
The date on which the highest state court decided my case was
A copy of that decision appears at Appendix---------[ ] A timely petition for rehearing was thereafter denied on the following date:
_______________________ and a copy of the order denying rehearing
appears at Appendix---------[ ] An extension of time to file the petition for a writ of certiorari was granted
(date) in
(date) on
to and including-----Application No. —A
The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).
2
%
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
Eighth Amendment right to be free from cruel and unusual
punishment.
»
NO:
IN THE
SUPREME COURT OF THE UNITED STATES
CARL LEE ASHLEY - Petitionee,
vs
MARY BOAYUE, et al - Respondents.
REASONS FOR GRANTING
PETITION FOR WRIT OF CERTIORARI
'4
31
TABLE OF CONTENTS
INDEX TO AUTHORITIES
XXX
STATEMENT OF THE CASE
-1
jSnciSe argument
A. THE SIXTH CIRCUIT ERRED BY CONCLUDING THAT PETITIONER COULD
NOT ESTABLISH THE OBJECTIVE PRONG'OF HIS EIGHTH AMENDMENT CLAIMS
8
B. OBJECTIVE COMPONENT
n
C. TREATMENT PLAN
16
D. BELT LOOP PANTS
18
E. GROSSLY INADEQUATE CARE
22
E(l) GROSSLY INCOMPETENT OR WILLFULLY INDIFFERENT
TO THE WELL-BEING OF PLAINTIFF
22
E(2) EXCORIATION/STRIPPING OF THE SKIN
23
F. DENIAL OF COUNSEL IN DISTRICT COURT
26
28
RELIEF
-ii-
INDEX TO AUTHORITIES
PAGE
CASE
Ascenzi v Diaz, 247 F App'x 390 (3d Cir 2007)
13
Baker v Blanchette, 136 F Supp 2d 100 (D. Conn 2001)
12
Blackmore v Kalamazoo Cty, 390 F3d 890 (6th Cir 2004)
11,17
Boretti v Wiscomb, 930 F2d 1150 (6th Cir 1991)
21
Broyles v Corr Med Servsll Ino, 478 F App'x 971 (6th Cir 2012)
11
Darrah v Krisher, 865 F3d 361 (6th Cir 2019)
17,18
Donnal v Patel, 2016 U.S. Dist LEXIS 205741 (N.D. Ohio July 11, 2016)
27-28
Estelle v Gamble, 429 US 97, 97 S Ct 285, 50 L Ed2d 251 (1976)
8,21
Farmer v Brennan, 511 US 825, 114 S Ct 1970, 128 L Ed2d 811 (1994)
8
Foreman v United States, 2023 U.S. Dist LEXIS 248 (E.D. Mich Feb 14, 2023)
16
Frebee v Cejas, 161 F3d 1 (4th Cir 1998)
12
Gil v Seed, 381 F3d 649 (7th Cir 2004)
17
Greano v Daley, 414 F3d 645 (7th Cir 2005)
15
Grissom v Corizon, LLC, no. 2:19-©v-420 (N.D. Ala Sept 16, 2022)
22-23,25
Gulley v Ghosh!I 864 F Supp2d 725 (N.D. Ill 2012)
17
Helling v McKinney, 509 US 25, 113 S Ct 2475, 125 L Ed2d 22 (1993)
8
Jackson v Corizon, 2022 U.S. Dist LEXIS 61242 (E.D. Mich Mar 31, 2022)
12
Jones v Gaetz, 2017 U.S. Dist LEXIS 44590 (S.D. Ill 2017)
12
Monmouth Cty Correctional Inst'l Inmates v Lanzaro, 834 F2d 326 (3d Cir 1987) 13
Murray v Dep't of Corr, 29 F4th 779 (6th Cir 2022)
16,21
Phillips v Tangilag, 14 F4th 524 (6th Cir 2021)
9,10
Reed v Lackawana Cty, 2019 U.S. Dist LEXIS 16965 (M.D. Penn Sept 30, 2019)
12
Rhinehart v Scutt, 894 F3d 721 (6th Cir 2018)
17
Richmond v Huq, 885 F3d at 947 (6th Cir)
16
-iii-
INDEX TO AUTHORmESCam't)
PAGE
CASE
Sarah v Thompson, 109 F App'x 770 (6th Cir 2004)
12
Shadrick v Hopkins Cty, Ky, 805 F3d 724 (6th Cir 2019)
12
Smith v Carpenter, 316 F2d 178 (2d Cir 2003)
8
Tabron v Grace, 6 F3d 147 (3d Cir 1993)
26
Terrance v Northville Reg'l Psychiatric Hosp, 286 F3d 834 (6th Cir 2002)
16
Watson v Jamsen, 2019 U.S Dist LEXIS 162554 (E.D. Mich Sept 24, 2019)
16-17
Williams v Erickson, 962 F Supp2d 1038 (N.D. Ill 2013)
12-13
-iv-
STATEMENT OF HIE CASE
Petitioner (Ashley), was diagnosed with bladder cancer, and on January 26,
2016, underwent surgery for a procedure which is referred to as cystoprostectomy
(surgical removal of the bladder and prostate). After recovery, Ashley was
discharged from the University of Michigan (U of M) Hospital on January 29,
2016. Ashley's treating Urologist (Dr. Hafez), issued a treatment plan which
included monthly urostomy supplies: 20 each Hollister New Image Skin Barrier
(Flat shaped) with Floating Flange and Tape Border; 20 each Hollister New Image
Urostomy Pouch Transparent, Lock and Roll; Coloplast leg Bag; and Night Drainage
Bag. (ECF No. 1-1, PageID.52).
On February 10, 2016, Ashley met with Defendant Boayue and discussed the
treatment plan of Dr. Hafez related specifically to "urostomy supplies, pants
with belt loop and/or stoma guard, detergent and decrystalizer for overflow
urine bag, odor stop spray." (ECF No. 73-2, PagelD.802-803).
The Flat-shaped skin barriers ordered by Dr. Hafez on January 29, 2016, were
determined by Dr. Hafez to be ineffective in controlling urine leakage aid on
February 24, 2016, Dr. Hafez, on a trial basis, replaced the ineffective Flat
shaped skin barriers with Convex-shaped skin barriers to assist in controlling
urine leakage. (ECF No. 73-2, PagelD.333, 944). The Convex-shaped skin barriers
were effective in controlling urine leakage, and on March 10, 2016 Dr. Hafez
issued a hew treatment plan and ordered 20 each Hollister New Image Skin
Barriers, Convex-shaped; and, 20 each Urostomy Pouches, to be provided monthly.
The other medically prescribed urostomy supplies ordered on January 29, 2016,
remained the same. (ECF No. 1-1, PageID.64).
-1-
On 3/17/2016, Ashley was seen by Defendant SBoayue on a ’’Provider VisitScheduled” for "evaluation of changing urostony supply concerns and to
discontinue snack detail”. Under ''Assessment/Plan: Patient urostomy supplies
were reviewed and reconciled with current supplies and U of M orders.” (ECF No.
73-2, PageID.841).
Nine (9) days later, on 3/26/2016, Ashley sent a Health Care Request (HCR)
requesting the Convex-shaped skin barriers and the status of the order that was
issued by Dr. Hafez on 3/10/2016. (BCF No. 1-1, PageID.64). This HCR was
forwarded to Defendant McCarthy, and she did not provide the Convex-shaped skin
barriers.
On 4/14/2016, Ashley sent a HCR regarding Convex-shaped skin barriers, leg
bags, night drainage bag, and solution to clean the night bag and leg bag, or a
schedule for exchange of the old night bag and leg bags to prevent infection.
(EXIF No. 1-1, PageID.66). This HCR was forwarded to McCarthy. McCarthy did not
provide the Convex-shaped skin barriers or the other supplies requested.
On 4/26/2016, Ashley spoke to Defendant Landfair and requested that the
Convex-shaped skin barriers be provided. She stated that she could not do that
without a Doctor's order. Ashley explained that Dr. Hafez had already ordered
the Convex-shaped skin barriers, and Landfair stated that she did not have to
follow an outside doctor's orders. (Complaint, page 14, para 54),
Because the Convex-shaped skin barriers were not being provided, Ashley sent
a HCR on 4/30/2016, for more of the ineffective Flat-shaped skin barriers
because of leakage, and stating ”urine eats through the Flat-shaped phalanges
and past very quickly." (EOF No. 1-1, PageID.69). Ashley sent HCR Vs on 7/6/2016,
7/13/2016, 7/19/2016, 7/29/2016, requesting more Flat-shaped skin barriers
because he uses them every two days due to leakage. (Id., PageID.95, 102, 107,
-2-
110). "[T]hese Flat-shaped phalanges are causing UTI/kidney infections." (Id..
PageID.116), and, "These are not the proper shaped phalanges and allows urine to
pool at the stoma site causing infections." (M., PageID.116); and, " » • « they
are not the proper shape, leak easily, and cause skin irritations and UTI/kidney
infections." (Id.. PageID.120). Kite response of 8/4/2016, states "Because this
seems to be a continuing issue for you I am forwarding your concerns and request
to the Medical Provider [Boayue] and HUM [McCarthy] for review of the amount of
supplies you are getting and using. Perhaps they will be able to increase the
amount or obtain the Convex-shaped bags as ordered." (Id.. PageID.112). Between
the date of the treatment plan issued by Dr. Hafez (March 10, 2016), and August
15, 2016 (5 months), there were no orders placed by Boayue, Landfair, or
McCarthy for Convex-shaped skin barriers. (ECF No. 87, PagelD.1266).
On June 30 , 2016, approximately 2k months after the Convex-skin barriers were
ordered by Dr. Hafez, Dr. Hafez stated:
"He is changing his ostomy appliance every 2 days. He has
had an issue with obtaining the Convex-shaped phalange
previously recommended by our ostomy RN to help allevaite
leakage issues. He has been using what is available to him
which includes a Flat-shaped phalange and paste. He notes
that he can spring unexpected leakage during the night. Our
ostomy RN did speak with the PA [Boayue] at the prison and
re-faxed the order for appropriate supplies and possible
alternatives. He had a UTI 2 months ago." (ECF No. 1,
PagelD.85-86).
In the "PLAN" section of the 6/30/2016 Memorandum, Dr. Hafez's treatment plan
included:
#7.
Recommendations regarding ostomy supplies were sent back
with Mr. Ashley for Corizon Michigan Department of
Corrections to assist him in obtaining the correct ostomy
supplies in order to prevent unexpected leakage and
peristomal irritation. He requires a Convex-shape 2 piece
Hollister ostomy pouching system. Our ostomy RN, Jane
Theriault had previously addressed this issue with Mary
[Boayue], PA. She mentioned that the Hollister Convex-
-3-
shaped barriers were on order but they were awaiting
delivery. In the interim, the patient must use what is
available at the prison. Jane re-faxed orders along with a
list of other possible pouch substitutes patient could
used." (ECF No. 1-1, PageID.92).
Also on June 30, 2016, U of M Ostomy Department sent an Authorization letter
to Boayue which stated "Ostomy appliance issues w/peristomal irritation. Needs
Convex-shaped 2 piece Hollister Pouching System per Ostomy RN recommendations."
(ECF No. 73-2, PageID.928).
Also, in the "PLAN" section of the 6/30/2016 Memorandum of Dr. Hafez, it
states: "#6, Gonsider cranberry tablets or cranberry juice daily for urine
acidification for UTI prophylaxis." (ECF No. 1-1, PageID.92). Ashley sent
numerous HCR's requesting cranberry juice or tablets to "help fight off
UTl/kidney infections." (Id.. PageID.97); "Cranberry tablets could reduce the
chances of developing future UTI1s• Please order cranberry tablets." (Id..
PagelD.101); (Requesting cranberry tablets as ordered by Dr. Hafez). (Id..
PageID.108). Cranberry tablets or cranberry juice were never provided to Ashley
while under the care of Boayue, Landfair, and McCarthy .
On August 15, 2016, Boayue acknowledged that "Ashley is experiencing
breakdown at the site of the ostomy with inappropriate leakage through [3 the
wafer connecting the ostomy appliance. Ha is ©urently awaiting the correct
ostomy appliance and supplies that have been ordered." (ECF No. 73-2, PageID.911
(Quoted at ECF No. 87, PagelD.1262)).
LEG/NIGHT DRAINAGE BAGS
Ashley was provided with one leg bag and one night drainage bag, by U of M
Hospital upon discharge on 1/29/2016. Although Ashley’s treatment plan of
j1/29/2016 and 3/10/2016 both ordered one leg bag and one night drainage bag per
month, Ashley was required to re-use these initial bags received from U of M
-4-
from 1/29/2016 through August 15, 2016, without replacement, and without any
cleaning solutions for the bags in his possession. U of M Nursing Services
Instructions stated that if cleaning solution (vinegar) was not provided, "Ha
may need to trade out his night drain pouch/leg pouch more frequently." (ECF No.
73-2, PageID.967). These mandated leg/night drainage bags were not provided
until 7 months after they ware ordered by Dr. Hafez. There were no cleaning
solutions provided by Boayue, Landfair, or McCarthy for the leg/night bags for
the entire time Ashley was at their facility.
URINARY TRACT INFECTIONS
On 5/1/2016,
7/3/2016,
7/6/2016,
7/9/2016
7/27/2016,
8/24/2016,
and
9/12/2016, Ashley sent HCR's stating, in part: "I am having back pains on both
sides of my lower back, right where the kidneys are. My urine also has a
stronger odor, and I felt a little nauseous this morning." (ECF No. 1-1,
PageID.72, 94,96, 99, 109, 121, 131). Kite response of 9/13/2016, states "You
are already scheduled to follow up for this health problem with your care
provider [Boayue] approx 9/15/2016." (Id., PageID.132). This appointment on
9/15/2016 with Boayue was cancelled for unknown reasons.
On July 16, 2016, Ashley filed a grievance stating:
On 7/12/2016
I was diagnosed with a UTI/kidney
infection. This infection has been caused by the failure of
PA Boayue, HUM McCarthy, and RN Landfair. Their
failure/refusal to provide the proper urostomy flange has
allowed the urine to pool around the stoma site. The pooling
of urine allows bacteria to grow, infect the ileal conduit,
ureters, and the kidneys, weakness due to infection and
being nauseous, and could possibly cause kidney damage."
(JCF/2016/Q7/1466/12D3 (ECF No. 1-1, PageID.103).
On September 21, 2016, Ashley had an appointment with Boayue for "result of
U/A [] and confirmation of received urostomy supplies." (ECF No. 72-3,
-5-
PagelD.727); (ECF No. 87, PageID.1263)). Boayue asked Ashley during this
appointment what Ms symptoms were regarding the on-going urinary tract
infection. Ashley explained that, since early July 2016,. he has had a very
strong odor in his urine, back pain over both kidneys> feeling nauseous,
fatigued all the time, sharp pain under the stoma site, vomited once "about
three weeks ago", and had blood in Ms urine "about four weeks ago.'* Boayue
stated that she did not believe Ashley had a kidney infection, did not believe
he was having pain over the kidneys, did not believe he vomited three weeks ago,
and refused to provide any further treatment for those symptoms.
On 3/20/2017, approximately seven months after Ashley was transferred from
CCF where he was having leakage, UTI, and skin irritation problems from
2/10/2016 through 9/27/2016, a CT Scan was completed at Mercy Health Muskegon.
IMs GT Scan was evaluated by Daniel G. Vickers, DO, Radiology Department of
Mercy Health Muskegon. Under "Solid Organs", the report stated in part "very
short segment of the right distal ureter nonopacification, otherwise the right
ureter is normal. The left proximal and Ms ureter is normal. Unfortunately, a
slightly longer segment of the left distal ureter is not opacified precluding
its accurate evaluation." (ECF No. 1-1, PageID.47-48). (Non-opacification is
caused by scar tissue in the ureters. The scar tissue is caused by infection,
and the scarred tissue does not allow for proper absorption of the contrast dye
used in GT Scans.).
On 2/26/2021, Ashley was advised by Ms thsn-Medical Provider at the Lakeland
Correctional Facility that he has Stage III Kidney Disease. "Advised pt. has
stage 3 kidney disease GReatine 1.51 and eGFR of 49. He has had elevated renal
functions for some time." (ECF No. 79, "Plaintiff's Response to Defendant's
Motion for Summary Judgment", Exhibit A-l thru A-4, and, Exhibit B-l to B-2).
-6-
* *
Stage III Kidney Disease has a eGFR (estimated glomerular filtration rate)
between 30 and 59. (kidmyfund.org).
BELT LOOP PANTS
On February 14, 2017, Dr. Decker developed a treatment plan and issued an
order (Special Accommodation Notice (SAN)) for belt loop pants. (EGF No. 1-1,
PageID.139). MCF Defendants (Schaub, Brazee, Spaulding, and Arends) refused to
provide belt loop pants that were proper fitting. MDOC Policy Directive outlines
the ministerial duty of these Defendants, in that, when their Quartermaster
inventory does not have the clothing item needed, and it cannot be provided by
Michigan State Industries within 30 calendar days,
the item ’'shall be
immediately ordered from another source.”, which they did not do. Pants ware
eventually ordered as per policy and delivered after an 11 month delay in
complying with the treatment plan and order of Dr. Decker for belt loop pants.
During this 11 month period, Ashley was diagnosed and treated with antibiotics
for eight (8) urinary tract infections.
More specific facts are provided in the following arguments.
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I *
'■-i
CONCISE ARGUMENT
A. THE SDCIH CIRCUIT ERRED BY CONCLUDING THAT PETITIONER
COULD NOT ESTABLISH THE OBJECTIVE PRONG OF HIS EIGHTH
AMENDMENT CLAIMS.
The Eighth Amendment jurisprudence clearly establishes that "deliberate
indifference to serious medical needs of prisoners constitutes the ’unnecessary
and wanton infliction of pain" that is violative of the Constitution. Estelle v
Gamble. 429 US 97, 104, 97 S Ct 285, 50 L Ed 2d 251 (1976). For this reason,
"deliberate indifference to a prisoner's serious illness or injury states a
cause of action under §1983." Id., at 105. A prisoner bringing a claim of
deliberate indifference must meet two retirements to succeed. See Farmer v
Brennan. 511 US 825, 834, 114 S Ct 1970, 128 L Ed 2d 811 (1994). The first
requirement — the objective factor - requires that the alleged deprivation be
of a sufficiently serious need. Id. As to the objective component, a serious
medical need for medical care, Fanner requires only that "an inmate show that he
is incarcerated under conditions posing a substantial risk of serious harm;" 511
US at 834, so as to avoid the "unnecessary and wanton infliction of pain." Id.
As this Court has held, the test for deliberate indifference is whether there
exists a "substantial risk of serious harm," Framer. 511 US at 834, and does not
require actual harm to be suffered. See also Smith v Carpenter. 316 F2d 178,
189, n 15 (2d Cir 2003) (observing that "actual physical injury is not necessary
in order to demonstrate an Eighth Amendment violation," and declining to adopt a
£££ se rule that such injury is required) (citing, in part, Helling v McKinney.
509 US 25, 35, 113 S Ct 2475, 125 L Ed 2d 22 (1993)). Under Helling, a serious
medical complaint is one that "is sure or very likely to cause serious illness
and needless suffering," 509 US at 33.
-8-
The Magistrate in this case (Ashley v Boavua, 2:19-cv-10484, E.D. Mich)
issued his Report and Recommendation (f&R)
on 11/22/2021,
(ECF No.87),
recommending that summary judgment be granted to all Defendants in this case.
The Court stated “Notably, during.fee October 27th hearing, the MDOC Defendants
cited to the Sixth Circuit's recently published decision in Phillips v Tangilag,
14 F4th 524 (6th Cir 2021), as controlling in this case. After careful review,
the Gourt agrees that MDOC Defendants and Boayue are entitled to swnmary
judgment under Phillips." (ECF No. 87, PageID.1265).
The Rj{R quoted Phillips regarding the objective component of the deliberate
indifference standard:
“To prove [an] objectively serious harm in the health
context, prisoners must first establish that they have
'serious medical needs.' They can do so, for example, by
showing that a doctor has diagnosed a condition as requiring
treatment or that the prisoner has an obvious problem that
any layperson would agree necessitates care. A serious
medical need alone can satisfy this objective element if
doctors effectively provide no care for it. More frequently,
doctors provide some care and prisoners challenge their
treatment choices as inadequate. To establish the objective
element in this common situation, prisoners must show more.'*
(EGF No. 87, PageID.1265)(quoting Phillips. 14 F4th at 53436)).
The district court then went on to find that:
“Upon thorough review of the record, the Court finds that
Ashley cannot 'get past the objective stage' of his
deliberate indifference claims 'because he lacks any expert
medical evidence showing that he received grossly inadequate
care' for his ostomy needs based on defendants* handling of
flanges, drainage bags, belt loop pants, and UTIs. Id. at
536.) (ECF No. 87, PageID.1268).
Ashley appealed the district court decision to the United States Court of
Appeals for the Sixth Circuit (Sixth Circuit) (Ashley v Boayue. Case no: 221295) claiming that the district court abused it's discretion and applied the
wrong legal standard.
-9-
Ashley argued that in Phillips v Tangilag. 14 F4th 524, 530-531 (6th Cir
2021), Phillips complained of a mass on his leg. Dr. Tangilag (prison doctor)
ordered an ultrasound which revealed "soft tissue mass" on his calf "with good
blood flow" but "ho definite clearcut margins[.]" This was inconclusive and a Ct
Scan was ordered. A "fluid collection" was found in the location of the
"plantaris muscle", with no evidence of bone fracture or lesion and the
'Visualized tendons and ligaments appealed] to be intact." Phillips was then
evaluated by a Specialist who agreed with the other doctors that the plantaris
was rupture!. Phillips was informed that the surgeons do not typically fix this
type of rupture by surgically repairing the tendon because people do not need
their plantaris to function normally. Dr. Tangilag informed Phillips that she
had spoken with the Specialist and they both decided against the surgical route
because the hematoma was going away. Phillips wanted more. Because Phillips did
not have a diagnosis from a physician or a Specialist mandating surgery, he,
appropriately
"in [that] common situation [no diagnosis from a physician
mandating treatment], [Phillips] must show more" to meet the objective prong.
Phillips. 14 F4th at 534-536.
In Aspley's case there was a diagnosis from a physician mandating treatment.
Dr. Hafez developed a treatment plan for Convex-shaped skin barriers to replace
the ineffective Flat-shaped skin barriers being used. Replacing the Flat-shaped
skin barrier was of such importance that Dr. Hafez and Jane Theriault (Ostony
Nurse) contacted Defendant Boayue and questioned why the Convex-shaped skin
barriers had not been provided as ordered. Dr. Hafez emphasized that the Convex
shaped skin barriers ware the appropriate or "correct" treatment to prevent
"unexpected leakage and peristomal irritation." (EGF No. 1, PagelD.92). Jane
Theriault also contacted Boayue at the prison and emphasized the importance of
-10-
the Convax-shapad skin barriers. Theriault suggested two other brands of the
Convex-shape that could be used to assure that Ashley recievad the Convex
shaped skin barriers. (Id, PagelD.92).
Ashley had two treatment plans from Dr. Hafez for ostomy supplies for
aftercare of his ostomy. The district court agreed that the treatment plan was
not followed " • • • the parties do not dispute that U of M Dr. Hafez prescribed
certain supplies for ostomy care • • • that were not promptly ordered and issued
to him. as was specifically prescribed.'* (ECF No. 87, PageID.1266). Because
Ashley has this diagnosis mandating treatment, the "common situation" in
Phillips does not apply, to Ashley's circumstances.
The district court held that Ashley "cannot 'get past the objective stage* of
his deliberate indifference- claims
evidence
• • • ".
'because he lacks any expert
(ECF No. 87, PagelD.1267-68). The Court declined "to separately
consider [qualified immunity]." (ECF No. 87, PagelD.1254), and did not "consider
the subjective component." (Id. PagelD.1275).
Therefore, Ashley only addresses the objective component of his Eighth
Amendment claims in this Petition.
B. OBJECTIVE
ST
The objective component "requires the existence of a serious medical need."
Broyles v Corr Med Servs, Inc, 478 F App'x 971, 975 (6th Cir 2012). A serious
medical need is one that: "has been diagnosed by a physician as mandating
treatment ^r one that is so obvious that even a lay person would recognize the
necessity for a doctor's attention." Blackmore v Kahamagno Ctv. 390 F3d 890, 897
(6th Cir 2004)(emphasis in original). An injury is sufficiently serious to
satisfy the objective component if a reasonable doctor or patient would find it
"important and worthy of comment or treatment;" if it "significantly affects an
-11-
individual's daily activities"; or if it's existence causes "chronic and
substantial pain," Sarah v Thompson. 109 F App’x 770, 771 (6th Cir 2004).
Other district and circuit courts agree that an ostomy is sufficient to
establish the serious medical need, and that an ostomy itself satisfies the
criteria for the objective prong of an Eighth Amendment claim.
In Reed v Lackawana Cty. 2019 US Dist LEXIS 16965 (M.D. Penn Sept 30, 2019, *
5, the Court held that "the use of a colostomy can constitute a serious medical
need as there are obvious 'risks inherent in a colostomy, including, but not
limited to, irritation, infection, and herniation. Without a doubt, a colostomy
requires a doctor's attention on, occasion and significantly affects an
individual's daily activities.'" (citing Williams v Erickson. 962 F Supp 2d
1038, 1042 (N.D. Ill 2013); Jones v Gaetz. 2017 U.S. Dist LEXIS 44590, 2017 WL
1132560, * 3 (S.D. Ill 2017); See Frebea v Ceias. 161 F3d 1 (4th Cir 1998)
(unpublished) (alleged need for colostomy bags constitutes serious medical
need).
In Jackson v Corizon, 2022 U.S. Dist LEXIS 61242 (E.D. Mich Mar 31, 2022),
the Court stated that the "serious need here is demonstrated by the colostomy
itself. which 'even a lay person would recognize as creating a serious medical
need for attention.'" (Jackson. * 16 (quoting Baker y Blanchette. 186 F Supp 2d
100, 105 (D. Conn 2001) ("[Vjiewing the evidence in a manner most favorable to
the plaintiff
a reasonable jury could find that his colostomy constituted a
serious medical condition.").
Courts also agree, contrary to the lower courts in this case, that the ostomy
itself satisfies the objective prong of a deliberate indifference claim. "This
[Ostomy] is sufficient to satisfy the objective prong • • • ". (Jackson. * 17; (see
e.g., Shadrick v Hopkins Cty. Kv. 805 F3d 724, 737 (6th Cir 2015) (the objective
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prong was satisfied based on a physician's diagnosis mandating treatment.)*
Without a doubt, an ostomy, like Ashley's, requires a doctor's attention on
occasion and significantly affects an individual's daily activities. See
Wi1.li.ama v,Erickson. 962 F Supp 2d 1038, 1042 (N.D. Ill 2013) (concluding that
daily management of a colostomy bag constitutes a serious medical need).
Here, Ashley has alleged an obvious need for medical treatment - Dr. Hafez
diagnosed Ashley with a sufficiently serious medical need that mandated
treatment with Convex-shaped skin barriers.
Ashley's allegations about Defendants' refusal to follow the prescribed
treatment plan is not simply a "dispute
■
•
•
•
over the adequacy of the treatment."
Ascenzi v Diaz. 247 F App'x 390, 391 (3rd Cir 2007). On the contrary, Ashley's
many requests for Defendants to provide the Convex-shaped skin barriers,
cleaning supplies, leg/night drainage bags, and proper fitting belt-loop pants,
were "reasonable requests] for medical treatment", the denial of which
"expose[d] [Ashley] to undue suffering or the threat of tangible residual
injury." Monmouth Cty Correctional Inst'l Inmates £ Lanzaro, 834 F2d 326 , 34647 (3d Cir 1987) (Emphasis added).
Also, the district court was in error when it stated "it is undisputed that
the record contains a litany of evidence demonstrating the extensive care he
received throughout his stay at CCF between January and September 2G[16]." (ECF
No. 87, PageID.1266). The district court in this case focuses entirely on the
overall treatment that Ashley received while at CCF under the care of Boayue,
Landfair, and McCarthy.
On appeal, the United States Court of Appeals for the Sixth Circuit
referenced the "extensive care" Ashley received and stated:
"When there is a disagreement about the provided
treatment between a medical provider and the prisoner, in a
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situation where the prisoner received extensive care for a
medical need .... (Order, pg
(Emphasis added).
The Court's terminology of “extensive care*', is not an accurate reflection of
the facts* Ashley is challenging the fact that Dr. Hafez issued a treatment plan
on March 10, 2016, and all of the trealtaent plan by Dr. Hafez was not followed
by the CCF Defendants.
To be clear, Ashley's claims in this action are:
1. Defendant's
Boayue
Landfair,
and
McCarthy
intentionally interfered with the treatment plan of Dr.
Hafez by not providing any treatment with the Convex-shaped
Skin Barriers between March 10, 2016, and August 15, 2016.
In fact, there were no Convex-shaped Skin Barriers even
ordered until August 2016. "[T]he parties do not dispute
that U of M Dr. Hafez prescribed certain supplies for ostomy
care • • • that were not promptly ordered and issued to him as
was specifically prescribed." (ECF No. 87, PagelD.1266).
2. Defendant Boayue, Landfair, and McCarthy intentionally
interfered with the treatment plan of Dr. Hafez by not
providing any treatment with the leg bag and night bag which
were ordered on January 29, 2016, until August 15, 2016.
3. Defendant's
Boayue,
Landfair,
and
McCarthy
intentionally interfered with the treatment plan of Dr.
Hafez by not providing any cleaning solutions to
decontaminate the one lag and night bags in his possession
from January 29, 2016, through September 27, 2016.
4. Defendants' Schaub, Brazee, Spaulding, and Arends
intentionally interfered with the treatment plan of Dr.
- Decker when he diagnosed a serious medical need for belt
loop pants to facilitate proper drainage of urine to avoid
contamination and infections. Although there were attempts
to comply with Dr. Decker's plan, it took eleven months to
provide proper fitting belt loop pants that would not cause
harm.
From March 10, 2016, through August 15, 2016, Ashley was not provided with
the Convex-shaped skin barriers that were ordered by Dr. Hafez on March 10,
2016. Instead, Defendants continual Ashley on the Flat-shaped skin barriers that
had been deemed ineffective in controlling the urine leakage which would cause
"peristomal irritation." Boayue, Landfair, and McCarthy also interfered with
-14-
the treatment plan by not providing any of the ordered leg/night drainage bags
from January 29, 2016 through August 15, 2016, and did not provide any cleaning
solutions for the entire time Ashley was under their care. This was not
"extensive care'*, this was a failure to fully comply with Dr. Hafez's orders.
MCF Defendants (Schaub, Brazee, Spaulding, Arends) did not comply with Dr.
Decker's treatment plan for belt-loop pants for an eleven (11) month period,
knowingly exposing Ashley to conditions that could cause substantial injury.
(See e.g., Greeno y Daley. 414 F3d 645, 654 (7th Cir 2005) ("the defendants'
contention that Greeno's claim fails because he received soma treatment
overlooks the possibility that the treatment Greeno did receive was 'so
blantantly inappropriate as to evidence intentional mistreatment likely to
seriously aggravate' his condition").
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C. TREATMENT PLAN
It is well establish®! in the Sixth Circuit that an incarcerated individual
has a "right to adherence to a treatment plan." Murray v Dep't of Corr, 29 F4th
779, 791 (6th Cir 2022). In Richmond y Hug, the Sixth Circuit reversed a grant
of stannary judgment on qualified immunity and stated that "this Circuit's
precedent is clear that neglecting a prisoner's medical need and interrupting a
prescribed plan of treatment can constitute a medical violation." 885 F3d at
947-48 (citing Terrance v Northville Reg'l Psychiatric Hosp, 286 F3d 834, 84445 (6th Cir 2002).
In Foreman v United States. 2023 US Dist LEXIS 248 (E.D. Mich Feb 14, 2023),
* 19, Foreman had an order from a physician for 30 days of rehabilitation
treatment of which he received only one day of treatment. Foreman1 s complaint
was not "a disagreement with a 'treatment choice', however. Rather, he complains
that prison officials ignored the doctor's 'treatment choice' for non-medical
reasons." Id, at * 19
In Watson y Jamsen. 2019 U.S. Dist LEXIS 162554 (E.D. Mich Sept 24, 2019),
Watson had foot surgery and the Specialist issued specific instructions
mandating post-surgery care. The Magistrate in Watson, as did the Magistrate in
Ashley's case, recommended granting summary judgment to the defendants because
Plaintiff failed to meet the "objective component"
of the deliberate indifference analysis because (i)
Plaintiff did not show that the 'ongoing treatment' 'was so
grossly incompetent as to shock the conscience:'" (Watson,
2019 U.S. Dist LEXIS 162584, * 13).
-------•••
The Judge in Watson reject®! the Magistrate's recommendations, and stated:
"Notably, in this case, Plaintiff need not show that the
'ongoing treatment' 'was so grossly incompetent as to shock
the conscience.' As
*- the Sixth Circuit previously explained,
such a showing is not required when a plaintiff shows that
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the medical need was 'diagnosed by a physician as mandating
treatment' and the defendant failed to provide such
treatment, Rhinehart v Scutt, 894 F3d 721, 737 (6th Cir
2018) (quoting Blackroore v Kalamazoo Countv, 390 F3d at
897." Watson, at 20-21.
In Watson, the prisoner was diagnosed by a physician with a condition
mandating post-surgery treatment, and those Defendants followed some of the
treatment plan, but did not follow all of the treatment plan. See Gil v Reed,
381 F3d 649, 663-64 (7th Cir 2004) (evidence of a prison doctor who ignored a
portion of the specialist's treatment plan demonstrated there was a genuine
issue of material fact).
Ashley has met the objective prong because he has shown that the medical need
was "diagnosed by a physician as mandating treatment” and all Defendants in this
case "failed to provide such treatment." Watson, at 20-21.
All CCF Defendants continued Ashley on the Flat-shaped skin barriers, a
treatment known to be ineffective. Gulley v Ghosh, 864 F Supp 2d 725, 729 (N.D.
Ill (2012) ("Even if a prison medical official provided treatment, a prisoner
has a claim for deliberate indifference if the official continues the prisoner
on a course of treatment known to be ineffective.").
In Darrah v Krlsher, 865 F3d 361, 370 (6th Cir 2019), the Court reversed the
grant of summary judgment for a physician because the plaintiff demonstrated a
genuine dispute as to whether medication used to treat his condition
-Methotrexate - was "so ineffective • • * that it was essentially the equivalent
of no treatment at all." And, "[ajlthough the record indicated that [defendant
doctor] monitored Darrah for
infections during
the period he was on
Methotrexate, the question of whether it was reasonable to keep him on a drug
that had been proven to be ineffective and whether the course of treatment
constituted deliberate indifference [was] a question best suited for the jury."
-17-
Id*
Like Parrah, the question in Ashley's case is whether it was reasonable to
keep Ashley on a treatment that was deemed ineffective, which had been replaced
by Dr. Hafez's new treatment plan issued on March 10, 2016, and the elasticwaisted pants which had been replaced with the belt-loop pants, and whether
these are "questions] best suited for the jury."
In this case, Defendants’ Boayue, Landfair, and McCarthy were informed that
the Flat-shaped skin barriers were ineffective, was given a new treatment plan
which included the effective Convex-shaped skin barriers, was cautioned by two
professionals that it / was the "appropriate" treatment, and without that
treatment there would be "peristomal irritations.”
Also, MCF Defendants created conditions that placed Ashley at risk of
substantial injury by not complying with Dr. Decker's treatment-plan for belt
loop pants.
D. BELT LOOP PANTS
On February 14, 2017, Dr. Decker developed a treatment plan and ordered belt
loop pants. (EGF No. 1, PagelD.139). Dr. Decker
"determined that the elastic waisted state issued pants
were not allowing the urine to properly drain away from the
stoma site. He made a medical diagnosis that Ashley's
condition mandated treatment in the form of belt loop pants,
and issued a Special Accommodation Notice ordering those
pants.” (Complaint, pg 29, 11 120).
Defendants Schaub, Brazee, Spaulding, and Arends (MCF Defendants), were
required to provide these medically necessary pants because a physician had
diagnosed Ashley with a medical need that mandated treatment with belt loop
pants to facilitate proper drainage of the urine.
Michigan Department of Corrections (MDOC) Policy Directive (PD) 04.07.110,
"State Issued Items and Cell/Room Furnishings"), states:
-18-
"If a prisoner requests an item in an unusual size • * •
and the item cannot be provided by Michigan State Industries
within 30 calendar days of the request, the item shall be
immediately ordered fro® another source.(Id, Section C).
Defendant Schaub stated in her affidavit "I had been in contact with MSI,
Michigan State Industries, to see if pants could be ordered. At that time, MSI
was not producing prisoner pants.'* (ECF No. 72-4, PageID.735). With the
knowledge that MSI was not producing prisoner pants, the only option open to MCF
Defendants was to "immediately order[] from another source." (PD 04.07.110,
Section C).
The Sixth Circuit stated:
•
"Although Ashley described some of the pants he tried on
as uncomfortable, he rejected most of the pairs offered by
MCF Defendants based on aesthetics, believing it was
’humiliating* or 'embarrassing* to wear modified pants that
sometimes left his ankles and lower shins exposed." (Order,
PS 8).
The lower courts have focused on the fact that Ashley rejected the offered
pants by the MCF Defendants, and because of Ashley's refusal, MCF Defendants are
faultless in not complying with the treatment plan that was issued by Dr.
Decker.
This is inaccurate. The first pair of pants were cobbled together by prisoner
Webb (See Affidavit of Timothy Webb [#220901], dated 4/26/2017; Complaint,
Attachment UUU). These are the pants that Defendants said they would sew
extensions onto the legs to make them longer, and these are the only pants that
Ashley said would be humiliating or embarrassing. Ashley never seen those pants
again. Instead, MCF Defendants cobbled together another pair of pants with
extensions sewn onto the legs. These pants were rejected, not because they had
extensions sewn onto the legs, but because they were so tight in the waist, hips
and buttocks that they would cause more damage than the elastic waisted pants.
-19-
(Complaint, pg 32, 51 133).
On December 4, 2017, Health Unit Manager (HUM) Michael Wilkerson (Registered
Nurse) was present and observed that the newly cobbled together pants were not
proper fitting and would cause further damage. (Complaint, pg 37, 11 158).' On
December 19, 2017, HUM Wilkerson was again present and agreed that the newly
cobbled together pants were not proper fitting. (Complaint, pg 37, 11 160). These
pants were rejected by HUM Wilkerson, not only Ashley, as improper fitting and
not being in compliance with Dr. Decker’s treatment plan.
On January 24, 2018, eleven (11) months after Dr. Decker developed a
treatment plan and mandated belt loop pants as a medical necessity, Ashley
received proper fitting belt loop pants which were provided by Michigan State
Industries. (Complaint, pg 38, 11 164).
.,
Again, Ashley had a diagnosis from a physician mandating treatment of a
serious medical need with belt loop pants. The MCF Defendants’ only duty was to
comply with the treatment plan of the physician. To facilitate carrying out that
treatment plan, PD 04.07.110 clearly mandates that if a clothing item cannot be
provided within 30 calendar days, the "item shall be immediately ordered from
another source." (Id, Section C).
Because the MCF Defendants intentionally interfered with Dr. Decker's
treatment plan, and did not provide the belt loop pants within "30 calendar
days" of Dr. Decker's order, their failure placed Ashley at risk of substantial
harm by creating conditions causing eight urinary tract infections during the
time that they refusal to comply with Dr. Decker's treatment plan and by not
following their own mandatory policy directive ("immediately ordered from
another source"). Although violation of a state policy directive is not a
constitutional violation, "intentionally interfering with the treatment once
-20-
prescribed.,1’ can establish a constitutional violation. Estelle v Gamble. 429 US
97,104, 97 S Ct 285, 50 L Ed 2d 251 (1976).
In the Sixth Circuit, a prison officials' failure to provide prescribed
treatment or comply with a medical treatment plan violates the Eighth Amendment.
Boretti v Wiscomb. 930 F2d 1150
1154-55 (6th Cir 1991). "Complying with a
doctor's prescription or treatment plan is a ministerial function, not a
discretionary one." Boretti. 930 F2d at 1156.
Ashley has a "right to the adherence of a treatment plan." Murray. 29 F 4th
at 791.
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£. GROSSLY INADEQUATE CARE
Even assuming that Ashley is required to show "grossly inadequate care*’,
f
Grissom y Corizon, LhC, No: 2:19-cv-420-RAH-KFP, 2022 WL 4290748 (N.D. Ala Sept
16, 2022), effectively established that standard for Ashley. Grissom was ordered
Convex-shaped skin barriers which were not provided for five months after the
order. Because Grissom was not provided the Convex-shaped skin barriers, and
developed "excoriation11 of the skin, the Court held that she had established her
Eighth Amendment claims. Ashley submitted Grissom as supplemental authority to
the Sixth Circuit. The Sixth Circuit rejected Grissom's reasoning and stated
there were two things that distinguish Ashley's case from Grissom:
"First, in Grissom, a wound specialist who examined
plaintiff 'declared that it would be grossly negligent or
willfully indifferent to the well-being rof the plaintiff if
she was not given the deeply Convex-shaped ostomy bags.
Grissom. 2022 WL 4290748, * 3. This declaration is the kind
of medical evidence that Ashley needs, but lacks, to suj^ort
the objective component of his own claims." (Order, pg
E(l). GROSSLY NEGLIGENT OR WILLFULLY INDIFFERENT
TO THE WELL-BEING OF PLAINTIFF
The Sixth Circuit stated that a wound specialist in Grissom, "declared it
would be 'grossly incompetent or willfully indifferent to the well-being'" of
Grissom if she was not given the deeply Convex-shaped ostomy bags. (Order, pg
9).
There is no reason for a different outcome here • • • Whether it be Grissom
Ashley, or any other ostomy patient, if Convex-shaped skin barriers were part of
the treatment plan ordered by a specialist, and prison staff did not provide
those Convex-shaped skin barriers, their behavior would be "grossly negligent or
willfully indifferent to the well-being" of any ostomy patient, including
-22-
Ashley. Just because Ashley's treating Urologist did not use the magic words
"grossly negligent or willfully indifferent to the well-being" of Ashley, and
instead stated "to prevent unexpected leakage and peristomal irritations", the
effect of not providing the mandated Convex-shaped skin barriers has the same
effect on Ashley as they did on Grissom.
It is not the "magic words" ("grossly negligent or willfully indifferent")
that is in issue here. Failure to provide mandated Convex-shaped skin barriers
is the issue, and what happens to any ostomy patient that does not get that
mandated treatment.
E(2). EXOORIATION/STRIPPING OF THE SKIN
The Sixth Circuit's second distinguishing reason for not applying the
reasoning in Grissom to Ashley's circumstances was:
"Second, the plaintiff in Grissom, suffered from severe
negative consequences, such as in the form of skin
excoriation, soiled clothing, and social ostracization, that
were obviously and directly attributed to defendants'
conduct. The link between the conduit of defendants here and
in Ashley's own health problems is not obvious, • • • •
(Order, pg 9).
"The link between the conduct of defendants [in Grissom] and in Ashley's own
health problems" is obvious. Both in Grissom and Ashley, Convex-shaped skin
barriers were mandated as part of the treatment plan. Defendants in both cases
failed to provide that treatment for months, causing skin excoriation, or in
Ashley's case, this "excoriation" was described as "stripping" of the peristomal
skin.
There is no difference between "excoriation" and "stripping". In fact,
Webster's Unabridged Dictionary (August 22, 2009), defines "excoriation" as "to
strip or wear off the skin of"; And, "strip" is defined as "7. To pull or tear
off, as a covering; to remove; to wrest away; as, to strip the skin from a
-23-
beast.'*
After prolonged exposure to the urine which was leaking onto Ashley's skin,
the peristomal skin became irritated, infected, with rash. Ashley complained to
GCF Defendants about the skin irritations/stripping multiple times: "the urine
•«•
seeping out under the adhesive • • . has caused skin irritation with a rash
• * ■
and a yeast infection."* "requesting the [Convex-shaped] prescription be
filled as ordered to prevent further infections . • • • provide both leg and night
drainage bags with solution for cleaning and disinfecting the bags to prevent
bacteria from causing a kidney infection." (ECF No. i, PageID.71); "improper
flanges
•••
has exposed the peristomal skin to unnecessarily high amounts of
urine, causing skin infections and rashes." (Id, PageID.76); "These Flat-shaped
flanges are causing UTI/kidney infections." (Id, PageID.114); 'Not the proper
shaped phalanges ... allows urine to pool at the stoma site causing infections."
(Id, PageID.116); "Flat flanges * • • • they are not the proper shape, leak easily,
and cause skin irritations and UTI/kidney infections." (Id, PageID.120); "Flat
flanges causes skin irritations." (Id, PageID.133).
In Ashley's Complaint he defined "stripping" for the Court as
"When the peristomal skin is irritated from exposure to
urine or frequent removal of the skin barriers. Pieces of
skin will strip away with the adhesive when removing the
skin barrier." (Complaint, pg 5, 11 17).
Ashley had many instances of skin irritation or rash. Some of which were:
On April 26, 2016, Ashley complained "that urine is
eroding the adhesive of the Flat-shaped skin barriers very
quickly ..."; [Ashley] requested that the prescription be
filled as ordered to 'prevent further infections • • * "
(Complaint, pg 15, II 57); and, "improper flanges has ...
exposed the peristomal skin to unnecessarily high amounts of
urine causing skin irritations and rashes." (Complaint, pg
16, 11 63).
* * it
-24-
On August 20, 2016, Ashley complained that "the Flat
shaped ones are leaking easily, causing skin irritations and
UTl/kidney infections.*' (Complaint, pg 24, 11 1Q2).
In Ashley's Complaint, under FIRST CAUSE OF ACTION, Ashley's claim against
all Defendants was:
"i) All Defendants by their delay or refusal to comply
with the orders of medical professionals caused Plaintiff
pain and suffering from multiple peristomal Infections.
including stripping, and the pain, nausea, and general
sickness frommultiple urinary tract infections.’*
(Complaint, pg 39, U 16/ (i)) (Emphasis added).
Ihe link between Grissom and Ashley is that the treatment plan mandated the
correct medical appliance which was not provided when ordered. Additionally,
another link is provided not only by the failure to provide the medical
appliance in a timely manner, but also the resulting skin excoriation or
stripping. This failure created a condition that put Grissom and Ashley at
substantial risk of serious future health complications.
-25-
F. DENIAL OF OOUNSEL IN DISTRICT COURT
In this case (Ashley v Boavue. No: 2:19-cv-10484, E.D. Mich), Ashley filed a
"Motion for Appointment of Counsel" (ECF No. 53). Ashley relied upon Tabron v
Peace, 6 F3d 147, 155 (3d Cir 1993), and the seven factors outline by that Court
in assessing the need for appointment of counsel. Of those factors, Ashley
addressed factors (4)-(6), as follows:
"(4)
Plaintiff's
ability
to
perform
factual
investigations/discovery is vary limited because of his
prisoner status
as well as Plaintiff's ability to
investigate and to learn the discovery rules, which are
hindered due to his status as a prisoner.
(5) The issues will definitely turn on the credibility of
medical experts, and (6) medical experts will definitely be
required for a complete understanding of the complex nature
of the illeal conduit that Plaintiff has, so the procedure
and all of its ramifications can be understood by the Court
or jury." (ECF No. 53, page 5).
The Magistrate denied the motion for appointment of counsel stating the
following:
"Third, Ashley has not identified any type of
investigation or discovery he will be unable to conduct
based on his incarcerated status and limited access to the
law library. Indeed, the relevant evidence in this case is
fairly well-cabined, and principally includes Ashley's
medical
records
and
the
defendant's
decisions,
communications, and actions regarding the same. Fourth,
while Ashley argues that the case will involve medical
experts, the appointment of counsel would not guarantee him
the ability to engage an expert. And, given that Ashley was
treat©! by a physician, it is unclear whether he would
actually need to retain an expert witness," (ECF No. 55,
PageID.542).
The Magistrate then granted summary judgment to all Defendants because:
"Upon thorough review of the record, the Court finds that
Ashley cannot ’get past the objective stage' of his
deliberate indifference claims 'because he lacks any expert
medical evidence' ...". (ECF No. 87, PagelD.1267-68).
-26-
On appeal, the Sixth Circuit affirmed the Magistrate's recommendation and
based their affirmance upon Ashley's lack of medical evidence: ’’This showing
[objective component] requires some form of medical evidence, 'typically in the
form of expert testimony. » II HAshley offered no such evidence • • •
(Order, page
7). "The absence of necessary medical evidence also dooms the claim based on
care Ashley received with respect to urine pouches." "Nevertheless, without
medical evidence that explicitly connects the inadequate care provided • • •
"Ashley does not offer the medical evidence that is necessary to create an
Eighth Amendment issue out of the belt loop pants." (Pg 8). "This declaration is
the type of medical evidence that Ashley needs • • • . (Pg 9). "The link between
the conduct of defendants here and Ashley's own health problems is not as
obvious, and the evidence for causation is not robust enough
• » • ".
(Pg 9).
"Nevertheless, in the absence of medical evidence assessing the quality of his
post-operative care • • • "• (Pg 10).
Ashley attempted to gain the assistance of counsel to obtain medical evidence
or expert testimony, and was told by the Magistrate that "the appointment of
counsel would not guarantee him the ability to engage an expert. And, given that
Ashley was treated by a physician, it is unclear whether he would actually need
to retain an expert witness," (ECF No. 55, PageID.542). The Magistrate then
granted summary judgment to all Defendants solely because Ashley did not present
any expert medical evidence.
In Donnal v Patel. 2016 \J'£. Dist LEXIS 205741 (N.D. Ohio July 11, 2016), the
Court explained the reasons why counsel would be necessary for an incarcerated
plaintiff to obtain the opinion of a medical expert:
"[Cjontrarily, success in Plaintif's case most likely
depends on the deposition of Defendant and the opinion of a
medical expert who would testify that Defendant was
deliberately indifferent to Plaintiff's serious medical
-27-
condition. For an incarcerated Plaintiff, the ability to
obtain these items is problematic."
The Donnal Court appointed counsel and concluded " • • * the potential merit of
the case can only be determined through further discovery, much of which will be
unavailable to Plaintiff without the assistance of counsel."
In this case the medical evidence or expert medical opinion were readily
available through Ashley's treating Urologist and the Ostomy Clinic at U of M.
However, Ashley was told "given that Ashley was treated by a physician, it is
unclear whether he would actually need to retain an expert witness." (ECF No.
55, PageID.542).
WHEREFORE, for the foregoing reasons, Ashley respectfully requests this
Honorable Court to grant certiorari, find that Ashley has established the
objective component of his Eighth Amendment claims, and remand for further
proceedings.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on May 01, 2023.
Respectfully submitted,
CARL LEE ASHLEY #136985 //
Lakeland Correctional Facility
141 First Street
Coldwater, MI 49036
-28-
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.