Case 2:07-cv-14644-ADT-CEB Document 1
MIt;.O (Rev.2/071 Prisoner ely!! Rights Compl~int

Filed 10/30/2007 Page 1 of 15

t5

Case: 2:07-cv-14644

rRA.sesfeigrnraeldJUTdog; eT;aByilnodr,eAr,nCnhaarDlige~

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FIled; 10·30·2007 At 12:46 PM

RIS COBBS V PRAMSTAlLER, ET Al (EW

PRISONER CIVIL RIGHTS COMPLAINT
This form i. /or U$& by sta!" prisone", fliing under 42 U.S. C. § 1983 and federal prison.", filing pursuant to Bivens v. Six Unknown
Nomad Agents of FOderol\8uroau DfNarcotics, 403 U.S. 388 (1971).

DALLAS COBBS
Place of Conllnement
RYAN CORRECTIONAL FACILITY

Streot 17600 Ryan Rd

City Detroit, MI

Zip Code
48212

Artl there additional plalnttfls?

Dyes

10 No

If Y.', MY additional plaintiff. k> thl$ aetlan should b. fisted 0/1 a separate 8W x 11· sheet ofpapar and sacufllIly attached to tho back of tl1ls complaint. You must provide names. prisoner numb.", and addresus:fiill'all plalatlffs.

SEE ATTACHED COMPLAINT

SIr••tIP.O. Box

City

SIaIe

ZIp Cod.

Are you suing this defendant in hl&/her:

o Official

Are you suing m('Jro than one d.fendant? ){:)(Yes

CI No

If yas, .ny add/UonBI defendants to this action shoUld bel/sted on a separate 8W x 11" she"t ofpaper and securely
attached to tho back oflh/s compIBlnt You must erovld. tholr n.mas, Dosltlons, "u""nt addru••s .nd tho capacity
(pOfliona/, offlC/@' or both! I!l which l(9u all! suing them. 5 EE ATTACHED COMPLAINT

1

Case 2:07-cv-14644-ADT-CEB Document 1 Filed 10/30/2007 Page 2 of 15

I. PREVIOUS LAWSUITS

Have you flied any other lawsuits in state or federal court relating to your imprisonment?

DYes

!Q(No

If "Yes," complete the following section. If "No," proceed to Part II.

Please list all prior civil actions or appeals that you have filed in federal court while you have been incarcerated.
DOCKet or Case Number:
Name of Court:
Partl.... (Caption or Name of Ca"):
... Disposition:

Docket or Case Number: Name of Court: Partie. (Caption or Name of Coso): Disposition;
Docket or Case Number:
Nam. Qf Court: Parties (Caption or Name of Ca,.): Disposition:

...." ...... ~,... ""

Any additional civil actions should be listed on a separate sheet of 8U" x11" paperand securely attached to the back of this complaint.

2

Case 2:07-cv-14644-ADT-CEB Document 1 Filed 10/30/2007 Page 3 of 15
I I
II. STATEMENT OF FACTS
State here, as briefly as possible, the facts of your case. Describe how each defendant is involved. Include the names of other people, dates and places involved in the incident. Do not give any legal arguments or cite any cases or statutes. If you intend
to allege several related claims, number and set forth each claim on a separate 8%" x
11" sheet of paper and securely attach the papers to the back of this complaint.
SEE ATTACHED COMPLAINT

III. RELIEF
State briefly and exactly what you want the Court to do for you.
SEE ATTACHED COMPLAINT

II

I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct.

tJ~ ). ~.;k/ Executed (signed) on

7 (j (date).

3

Case 2:07-cv-14644-ADT-CEB Document 1 Filed 10/30/2007 Page 4 of 15

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

DALUIS CORBS,
Plaintiff, v

COMPLAINT

GEORGE J. PRAMSTALLER, JOHN DOE #1, JOHN DOE #2, JOHN DOE .jt3, et al, JOHN DOES, Bureau of Health Cere 5ervices, Medical 5ervices Advisory
Committee, Defendants./

JURY TRIAL DEMANDED
Case: 2:07-cv-14644 Assigned To: Taylor, Anna Diggs Referral Judge: Binder, Charles E Flied: 10·30·2007 At 12:46 PM PRIS COBBS V PRAIIIISTALLER, ET AL (EW )

PRELIMINARY STATEMENT

This is .. civil rights action filed by Dallas Gabbs, a state prisoner, for damagee end injunctive relief under 42 U.S.C. §19A3, alleging deniol of m~dical care in violation o' the Eighth Amendment to the United States Constitution.

JURISDICTION

1. The court has jurisdiction aver the plaintiffs' claims of violation of federal conatitutional rights under 42 U.S.C. §§1331(.)
end 1 3t.3.

PARTIES

2. Plaintiff, Dalla" Cobb., ,,88 in~"rC6rat~d at Ryan C.orJ:~c;ti"nal Facility, 17600 Ryan Rd, Detroit, MI 48212 during the events described in this complaint.

3. De'endent George J. pramstaller is the Chief Medical Of.icer of the Michigan Dmpartment of Corrections' (MDOC) Bureau of Health Cere Services (SHeS). He is sued in his individual and official capacity.

4. Defendant John Doe *1 is a member of the Medical S"rvice" Advi50ry Committes (MSAC). Hi! is sued in his i.ndividual and official

Case 2:07-cv-14644-ADT-CEB Document 1 Filed 10/30/2007 Page 5 of 15
r;apacity.
5. Defendant John Doe #2 i~ a member of the M5AC. He is sued in his individual ond offioia1 capacity.
6. Defendant John Doe #3 is a member of the MSAC. He is sued in his individual and official capacity.
7. All of the defendants have acted, and continue to act, under color of state law at all times relevant to thi9 complaint.
,ACTS
B. On July 27, 2004, plaintiff wa. taken to DUane L. Wat~r8 H09pit~1 for a clinic consultation with Dr. Ghulam Dastgir for pre-approval for scans of th~ right and left eye ss wsl1 as cataract extr~ctian with len8 implants in both eye;;, ~"ith the right eye to be done Hnt.
9. Plilintiff we. t8ken to Parkside Eye Clinio end underwent ocans for bnth sye8 nn August 23, 2004 and signed a consent for cataract extraction with lens implant in both eyes.
ill. On August 31, 2004, plaintiff was taken to DUane ·L. ~.Isters Hospital one day after having cataract 8xtraction with lenB implant to hie right eye. Dr. Da~tgir's treatment plan woe to have plainti" brought back to the Blake Woods Surgery Center 'or catara~t extr~ction with lena implent in the left eye a~ scheduled.
11. On October 7, 2004, Ryan physician Dr. Piper made a request to ophthalmology stating that pl~intif' wes to be retUrned to have a cataract procedure done on his left eya, citing the diction of D~. Destgir.
12. The request W89 denied on October 26, 2004 by the MSAC, consisting of John Doe #1, John Doe #2, :John D.:le #3, e't "1 . .lohn

Case 2:07-cv-14644-ADT-CEB Document 1 Filed 10/30/2007 Page 6 of 15

13. On Navemb"r 29, 2004, plaint.iff sent a health care requeet to

the

facility's

Health

Service9(hereaft~r

HIS),

reque~ting

information ss to why he hadn't received the cataract 5Urg~ry for

hia left eye.

14. A rS6ponse dated December 1, 2005 was sent atating that "per MSP surgery not approved by eMS".

15. On December 8, 2004 plaintiff filed a grievance again~t His to find out why he hadn't received the surgery.
16. The respon99 deted February 4, 2005 ""'6 that althO'.Jgh the
treatment plan was for cataract extraction with lens implant to th8 left eye, tho MSAC, consisting of John Doe #1, John Doe '2, John Doa '3, et al. John Does, did not spprova the surgery.

17. On or about January 17, 2005, platnti ff filed Ii Step Xl grievanr.~ appealing th~ Step I.

1 B. Th" response dated January 2fl, 2005 WaS that surgery was not approvod by the MSAC, o;;onijisting of John Doe 1/1, John Doe 1f2, John Doe #3, et al. John Doe •.

19. On or about February 7, 2005 plaintiff filed a Step III grievan~e ap~ealing the Step I I .
20. On Mar~h 17. 2005 the responS8 was that although " ""cond cataract surgery hed b~"n approved, the approval was ,-"viewed and rescinded by the MSAC, consisting of John Doe #1, John Doe #2, John Doe #3, at al. John Does.

21. The denial of c:atarect eurgery by the MSAC, consi9ting of John Doe #1, John Doe #2, John Doe #3, et al, John DIHi$. consitutl'ld deliberate indifference to hin serious medical needs in violation of
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Case 2:07-cv-14644-ADT-CEB Document 1 Filed 10/30/2007 Page 7 of 15
the Eighth Amendment to the United States Constitution.
22. Plaintiff sent a haalth care request to HiS on March 17,2nn5 to s"e the optometrist for new glasses bacausg his vision had changed due to the cataract on his left eye.
23. Plaintiff ~Ja8 "e9n by optornehht, Dr. McGraf on r1ay 10,2005 but loBS unable to get new glass"s because of the cat~ract on hin left eye. Dr. Mc:Graf made a requaet for cataract evaluation and possible surg~ry.
24. On Mey 31, 2005 that requ •• t was dlnimd by th~ MSAC, consisting of John 008 111, John Do~ #2, John Doe #3, at "1. John Ooeo;.
25. On Junm B, 200:' plaintiff sent a health cera request to HiS concerning new glasses and the cataract.
26. On Jun~ 21;, 20G5 plaintiff filed e Step I grhvanc:1'! ahout rll'!"' glasses and the cataract Gurgary.
27. A r"span"" dated July 15, 2005 was that the surgery We" not approvod and that plaintiff was to be ev~luated in 6~12 months by the optametri8t.
28. Pl~intiff sent a health care request to HIS on November 2, 2005
a.king when he would see the optometrist.
29. A reply dated tJovemher 3,2005 stated that he .Ias an th~
appointment list.
3n. On or eblHlt December 14, 2005 Dr. McGraf made another request for the surgery stating ·Cataract surgery needed. No view of retina of left eye possible. Patient has al5c walked into objocts on left side. II
31. The MSAC, conshting of John Doe 1/1, John Doe #2, John DOli! 1!3, -4-

Case 2:07-cv-14644-ADT-CEB Document 1 Filed 10/30/2007 Page 8 of 15

et HI. John Does denied the request on December 27, 2005.
32. 0 n Jan U il r y 11, 200 Ii Dr. Mc Gr a f r e que s ted a f 011 [) (~-I,j p, ~ i ti n 9 gleucoma as a riSk.

33. On at about February 1, 2006, plaintiff was MeGref. He wrote a request to approve cataract glaucoma as a risk factor.

examined surgery,

by Dr. ci.ting

34. The request was denied on f1arch 15, 2U06 by the M8AC, consisting of John Doe #1, John Doe #2, John Doe #3, et al. Jahn Doe •.
35. Dr. McGraf made a ~urgery requnst to prevent secondary glaucoma.
36. Th~t request was denied by the M5AC, consisting of John Doe #1, John Doe '2, John D08 #3, . t 01. John Does on April 3, 2006.

37. On April 17, 2006, Dr, McGraf made another sta'gery request citing a risk of glaucoma.

38. That request waG denied on May 9, 2006 by thp. MSAC, consisting of John Doe #1, John Doe #2, John Doc #3, et al. John Doss.
39. On April 25, 2006, the MSnC, consisting of John Doe #1, John Doe #2, John Doe '3, et ~l. John DO"5, denied an appelll for cataract
surglllry,

40. On May 27, 2006 phintiff sent a health cere request to HiS because h. could no longer see out of his left ~ye and .~quested to be examined by Dr. Piper.
41. An answer dated May 30, 2006 instructed plaintiff to "J~tch the< call-out for the eye clinic.

42. On June 21, 2006 plaintiff aent a health cere request to HiS to S!Ul Dr. Piper,
-5-

Case 2:07-cv-14644-ADT-CEB Document 1 Filed 10/30/2007 Page 9 of 15
43. An appointment 1,la9 m~de for July 26, 2006.
44. On July 16. 2006 phintiff sent a health care request to HIS stating he had no vision in his left eye and that he nS'Jded Imm~diat~ attention.
45. A July 27, 2006 appointment w•• made for th~ eye clinic and far him to w.t~h the call-out.
46. On July 27, 2006. Dr. Piper requested fallow-up to ophthalmology noting the deterioration in pl~intiff'e vielon.
47. On Augu~t 8, 2006 Dr. Piper wrote comments on a Ct1S Decision Form that ~ccol.'ding to thE! optometrist, pl~intiff's viaion in hie left ey" had significantly d"t~rior~ted,
1+8. On August 25, 2006 Dr. Cook examined plaintiff, requeeted surgery, and alsa st.ted thet plaintiff needed to wear a patch on hie left Bye to function.
49. Plaintiff sent" health care request to HiS on October 26, 2006
because the strain on hia right aye was causing him blurred villan, headaches, dizzin85G, and lams of balance.
50. The response dated Novll!mb'H 2, 2006 waG stamped "OPTOMETRV
LIST".
51. On Octob~r 29, 2006 plaintiff filed a step I grievance explaining that the optometrist keeps making surgery requests for plaintiff Is left eye and that eMS, end the MSAC, conei~ting of John Doe #1, John 008 j~2, John Doe #3, at 81, John D08s, continues to d~ny the surgery.
52. Plnintiff did not receive ~ response to Step I. -6-

Case 2:07-cv-14644-ADT-CEB Document 1 Filed 10/30/2007 Page 10 of 15

53. Plaintiff filed a Stop II gri~vmnce appeal on November 3D, 2006 repeating the Step I claim.

54. The reeponse dated April 27, 2007 referred to the non-approval

0' by the MSAC, c~n"i8ting

John Doe if1, Jahn Doe #2, John DOQ if3, et

«1. JoiHl Does.

55. On December 13, 2UU6, Or. MeGrsf requested that plaintiff be evaluated and that catarmct surgery be orderad.

56. The request was denied on March 7, 2007 by the M5AC, consisting of :John Doe #1, Jot," Do~ #2, John Do~ j/3, et al. John Does.

57. On or sbout Janu~ry 15, 2007, plaintiff filed a Step III appeal
stating th~ claims contained in Step I & II.

58. After pl~intiff exhausted hie etate remedies, th~ failure of the MSAC, cDnslotin!l ~f John Doe #1, John D~e #2, John Doe #3, at a1. John ODes, to approve cataract surgery cDnatituted deliberate indifference to his serioum medical needs, In viCll~tiDn of the Eighth Amendment to the Unitmd States Constitution.

59. On D~c8mber 13, 20D6, Dr. Mc:Graf requested that plaintiff be evaluated and that cataract surgery be ordered.

60. Plaintiff wrote the 27, 20tl7 in an attempt grievance.

Diractor's Office of the to t!xp~dite a reBpon~"

MDDC on F~bruary to hi" Step III

61. ThAt offics sent a letter dated April 3, 2007 stating that the grievance would be returned as socn as it was feasible,

62. Plaintiff nnt a health care request to HiS On April 21, 2007 complaining of double vision in his right eye.

63, An answer dated April 26, 2007 waB returned stamped "OPTOMETRY
-7-

Case 2:07-cv-14644-ADT-CEB Document 1 Filed 10/30/2007 Page 11 of 15
LIST".
64. Plaintiff wrote a lett~r dated May 21. 2007 to the MDOC Director's Offi~n explaining that per MDDe policy, the total process from filing a Step I grievance to providing a Step III r~lpon5e was gO day. unles5 an extension had beEn granted. No extension was ever granted.
65. On J~Jly 29, 2007, phint.iff wrote the MDDe '8 grievance lInd
appeals ~8ctitlM, ngain ~itlng MDOe policy ~nd requesting an
expeditiOL'1 raspon~B.
66. On September 10, 2007, plaintiff received a step III response
affirming ths responses given in Step I and II.
67. On September 2B, 2007, plaintiff sent a health cara request to HiS complaining of severs headaches, dizziness, and blurred vision.
68. He Id3S given a October 5, 20n7 appointment to SBS the hUI'Slo.
69. On Octob,,,,, 5,2007, plaintiff 8aw ~1s. Butts, R.N. 5110 told plaintiff that his medical record indicated that a request for an off-sight visit to ophthalmology w~s made by Dr. McGraf in March but I.a" not authorized. She further >laid that there u's" nothing she could do Rbout plaintiff's ~ye strain and scheduled him to se~ the doctor an Octobsr 29, 2007.
70. The defendants had knowledge that the plaintiff faced a risk of glaucoma without the surgsry end failed to provide, or caUSB others to provide tr~atment, d8spite thBir knowledge of ~ oUbstantial risk of a.rioue harm. Their failure to do 10 is the proximate causm of plaintiff's pain and Buffering, and haG caused him great emotional distrsEH5.
71. On information snd belief, i f the plaintiff is not promptly provided with cataract surgery as directed by Dr. Dastgir, he riroks
8-

Case 2:07-cv-14644-ADT-CEB Document 1 Filed 10/30/2007 Page 12 of 15
p8rm~nent damage to his left ~ye.
CLAIr~ FOR RELIEF
1. The failure ~f defendent Goorge J. Pramstallor to approve ond to provide plaintiff with cataract surgery and to follow the pr8~crib8d treatment plan of Dr. Dastgir. constitutas deliberate l.ndif1'erencfil to the plaintiff's serious medical n6sds in violaticn of the Eighth Amendment to the United 5tates Constitution.
2. ThO! failure of defendant John Doe 111 to apprc]VE! anrJ to provide plaintiff with oataract surgery and to follow the prescribed treatmont plan of Dr. Dastgir, constitutes deliberate indiffer8nc~ to plaintiff's serious m~di"al np.8ds 1n violation of tho E;ighth Amendment to the United States Constitution.
3. The failure of d~f8ndant John Doe '2, to epprove and to provid~ plaintiff with cataract surgery constituted deliberate indiffer=ncB to the plaintiff'. serious medical neede in violation of the Eighth Amendment to the United Status Constitution.
4. The failure of defendant John Doe #3, to approve and to provide plaintiff with cataract lurgery constituted deliberate indifference to the p18intiff's seriaul medicil needs in violltion of the Eighth Amendment to ths United State8 Constitution.
5, The failure of ",11 of the defendants, individually. and in concert, to approve and provide the cataract surgery constituted deliberate indifferenco to plaintiff's 38!':i,.OLJ3 medical nE;lsdG anrl 8ubjsctsd him to thm wanton and unnmcesssry infliction of nain and 8uff~ring, in violation of the Eighth Amendment to th8 Unit.d Stltea Constitution,
6. As a dj"rect end prdxi.mate r!)Gult of the denial of o;atarsct surgery. plaintiff Guffers from intense hr:;!adache~ 1 dizzine::L.:; t blurred vision in hi. right eys resulting fram strain, loss of depth
-9-

Case 2:07-cv-14644-ADT-CEB Document 1 Filed 10/30/2007 Page 13 of 15
p~r~.ption, and lOIs of p~rinheral vi.iDn on hi. left !id~. Plaintiff must now wsar an aye patoh ovsr his left ayre in urd~E to facus the vision in hil right eye and is blind en his left aida.
7. The failure of all of the de'endant. to approve and to prDvide the needed cataract 5urgary continues to subject plaintiff to pain and luffering, Ilong with humiliation, m~ntal and emotional anguish, and "nxiety.
RELIEF REqUESTED
luHEREFORE, plaintiff request. that thh Court grant the following relief:
A. 16su~ n decl~r6tory judgement ~tating that:
1. The f~ilure of all gf the defendants to fol1o~1 tho Examination and treatm€nt plan of Dr. Dastgir by denying plaintiff the cetar8ct 8urg"ry, constituted deliber8te indifference to his serious medical nonds in violation of tho Eighth Am~ndment to the Unitnd States Constitution,
B. IS~\le an injunction ordering defendants or their agents to:
1. Immediately arrange for plainti'f to reemius catlract murgery with lEn. implant to the left eye.
2. Immediately ~rtmnge for th~ plaintiff's need for any other follow-up trsatment anrJ evaluatiDn by a medical practitioner with Bxpertise in the tr~atment in re~toring his vision.
C, Awa~d compenoatory damagsm to the plaintiff aglinGt thlDe defendants for physical and emotional injuriaa sustain~d as e re.ult
0' th8ir violating hie constitutionsl rights.
D. Award punitive damageD againat the defendants. -1 [J-

Case 2:07-cv-14644-ADT-CEB Document 1 Filed 10/30/2007 Page 14 of 15

E. Grent such othar reliaf that thiA Honorable Caurt may deem, or, as it may appeAr that the plaintiff is entitled.

Octob,n 24, 2007

d~S~
Dallae Cobbs #164276 Ryan Carr. Facility
176no Ryan Rd
Detroit, MI 4B212

-11 -

Case 2:07-cv-14644-ADT-CEB Document 1 Filed 10/30/2007 Page 15 of 15
CIVIL COVER SHEET FOR PRISONER CASES

Case No. 07-14644

Judge: Anna D199& Ta~lor

Magistrate Judge: Charles E. Binder

Name of 1" Listed Plaintiff/Petitioner:
DALLAS COBBS
Inmate Number: 164276 Plaintiff/Petitioner's Attorney and Address Information:

Name of 1" Listed Defendant/Respondent:
GEORGE PRAMSTALLER, ET AL
Additional Information:

Correctional Facility:
Ryan COlToctlonal Facility
17600 Ryan Road Detroit. MI48212 WAYNE COUNTY

BASIS OF JURISDICTION
Cl 2 U.S. Government Defendant IliJ 3 Federal Question
NATURE OF SUIT [li 530 Habeas Corpus
n 540 Mandamus
o11!1 550 Civil Rights 555 Prison Conditions

ORIGIN
l1li1 Original Proceeding
o 5 Transferred from Another District Court
C Other:
FEE STATUS I!I' IFP In Forma Pauperis
C PO Paid

PURSUANT TO LOCAL RULE 83.11

1, Is this a case that has been previously dismissed?

C Yes

~ No

> If yes, give the following information:
Court: _______________________________________________________________

Case No: ____________________________________________________________________

Judge: __________________________________________________________________

2. Other than stated above, are there any pending or previously discontinued or dismissed companion cases in this or any other court, Including state court? (Companion cases are matters in which it appears sUbstantially similar evidence will

be offered or the same or related parties are present and the cases arise out of the same transaction or occurrence.)

[:, Yes

!81 No

> If yes, give the following information:

Court: ___________________________________________________________________

Case No: ____________________________________________________________________

Judge: _______________________________________________________________

MIED (Rev. 07106) Civil Cover Sheet for Prisonor Cases

 
 Case 2:07-cv-14644-ADT-CEB Document 91 Filed 06/25/2009 Page 1 of 6

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

DALLAS COBBS, #164276, Plaintiff,
v.

Case No.: 07-CV-14644 Hon. Anna Diggs Taylor Magistrate Judge Charles E. Binder

GEORGE J. PRAMSTALLER, ET AL, Defendants.

Paul D. Reingold (P27594) MICHIGAN CLINICAL LAW PROGRAM Attorney for Plaintiff 363 Legal Research Building 801 Monroe Street Ann Arbor, MI 48109-1215 (734) 763-4319
Clifton B. Schneider (P70582) Michigan Department of Attorney General Corrections Division P.O. Box 30217 Lansing, MI 48909 (517) 335-7021

CHAPMAN AND ASSOCIATES, P.C. Ronald W. Chapman (P37603) Brian J. Richtarcik (P49390) Attorneys for Defendants, Correctional Medical Services, Inc., Craig Hutchinson, MD and Bency Mathai, MD 40950 Woodward Ave., Suite 120 Bloomfield Hills, MI 48304 (248) 644-6326
C. Adam Purnell (P52634) James T. Farrell (P35400) Assistant Attorney General Attorney for Defendants Dillon and Fischre PO Box 30736 Lansing, MI 48909 (517) 373-6434

DEFENDANTS, CRAIG HUTCHINSON, M.D. AND BENCY MATHAI, M.D.’S REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO DISMISS
PURSUANT TO 42 U.S.C. § 1997e(a) AND FED. R. CIV. P. 12(b)(6)

Defendants, Craig Hutchinson, M.D. and Bency Mathai, M.D., respectfully request this

Honorable Court to grant their Motion To Dismiss Pursuant To 42 U.S.C. § 1997e(a) And Fed.

R. Civ. P. 12(b)(6), and dismiss Plaintiff’s claims against them with prejudice. Plaintiff has

failed to file a single grievance against the moving Defendants prior to filing the instant action,

and, therefore, his claims should be dismissed as they are barred by 42 U.S.C. § 1997e(a).

According to 42 U.S.C. § 1997e(a), a prisoner may not file suit under 42 U.S.C. § 1983

until the prisoner has first exhausted his administrative remedies. The United States Supreme

Court has made clear that the exhaustion requirement of 42 U.S.C. § 1997e(a) requires a prisoner

to “properly exhaust” his administrative remedies. Woodford v. Ngo, 126 S. Ct. 2378, 2386, 165

Case 2:07-cv-14644-ADT-CEB Document 91 Filed 06/25/2009 Page 2 of 6
L. Ed. 2d 368 (2006). The Court has further explained that “proper exhaustion” requires an inmate to comply with the specific procedural rules set forth in the individual prison’s grievance policy: “The level of detail in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison’s requirements, and not the Prison Litigation Reform Act (“PLRA”), that define the boundaries of proper exhaustion.” Jones v. Bock, 127 S. Ct. 910, 923, 166 L.Ed. 2d 798 (2007). In the present case, Paragraph T of MDOC Policy Directive 03.02.130, the relevant grievance policy, explicitly requires a grievant to name in the grievance each individual against whom the grievance is filed. (See Dkt #86, Exhibit A, Attachment 1, ¶T (“Dates, times, places and names of all those involved in the issue being grieved are to be included”)). Although Plaintiff pursued two grievances through the entire grievance procedure prior to filing the present action, neither of the two grievances name Dr. Hutchinson or Dr. Mathai, as explicitly required by Paragraph T of the grievance policy. (See Dkt #86, Exhibit A, Attachments 3 and 4). Therefore, Plaintiff failed to “properly exhaust” a single grievance against Dr. Hutchinson or Dr. Mathai prior to filing the instant action, and Plaintiff’s claims against them should be dismissed because they are barred by 42 U.S.C. § 1997e(a). See Sullivan v. Kasajaru, 2009 U.S. App. LEXIS 5362 (6th Cir. March 13, 2009) (holding that where the relevant grievance policy explicitly required a grievant to specifically name each person against whom the grievance was filed, the Plaintiff’s failure to specifically name each Defendant in his grievance amounted to a failure to properly exhaust that grievance as to each non-named Defendant).1
In his Response, Plaintiff disingenuously argues that he “fully exhausted his administrative remedies prior to filing his lawsuit.” (Dkt #88, Brief, p.2). In making this argument, Plaintiff fails to adequately address the deficiencies in his two grievances, and instead,
1 While Plaintiff attempts to minimize the authority of Sullivan v. Kasajaru due to the fact that it is unpublished, the moving Defendants note that this is the most relevant authority from the Sixth Circuit Court of Appeals, and that Plaintiff has put forth absolutely no authority that has any precedential value in this Court.
2

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sets forth three tenuous and meritless arguments. First, Plaintiff mistakenly argues that the MDOC policy does not require an inmate to
name in a grievance every individual whom he later sues. In support of this argument, Plaintiff first argues that the PLRA does not have a naming requirement and does not mandate that a prisoner name individuals whose identities are unknown to him, but merely requires an inmate to exhaust those administrative remedies available to him. Plaintiff further argues that because he did not know the identities of Dr. Hutchinson and Dr. Mathai at the time in which he filed his grievances, the MDOC grievance procedure was not an administrative remedy that was available to him. In support of this argument, Plaintiff improperly relies upon the 2002 11th Circuit case of Brown v. Sikes, 212 F.3d 1205 (11th Cir. 2000), which allegedly held that the Prison Litigation Reform Act does not require an inmate to name individuals in a grievance whose identities are unknown to the grievance. Brown, however, has no precedential value in this Court. Furthermore, it was decided well before Woodford and Jones, and runs contrary to their holdings. Contrary to the 11th Circuit’s reasoning in Brown, the United States Supreme Court has made clear in Woodford and Jones that it is not the PLRA that provides the requirements for “proper exhaustion,” but rather the specific requirements of the individual prison’s grievance policy. As explained above, the grievance policy at issue in this case requires a grievant to specifically name each individual involved in the issue being grieved. (See Dkt #86, Exhibit A, Attachment 1, ¶T). Therefore, contrary to Plaintiff’s misguided interpretation of the exhaustion requirement, Plaintiff was required to specifically name each individual involved in the issue being grieved in order to have “properly exhausted” his administrative remedies. Because Plaintiff failed to name either Dr. Hutchinson or Dr. Mathai in a single grievance prior to filing this action, Plaintiff failed to “properly exhaust” his administrative remedies against them and his claims against them should be dismissed as they are barred by 42 U.S.C. § 1997e(a).
For his second argument, Plaintiff disingenuously argues that he exhausted his
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administrative remedies by naming the MSAC and CMS in his grievances. In support of his argument, Plaintiff relies upon the 5th Circuit case of Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004), which has no precedential value in this Court and which was superceded by the firmly established holdings of the Supreme Court in Woodford and Jones. In Johnson, the Court looked to its own interpretation of the PLRA’s exhaustion requirement, as opposed to the specific requirements of the individual prison’s grievance policy, and found that the exhaustion requirement could be satisfied even if the grievance does not provide actual names, so long as it sufficiently identifies the persons against whom it is filed. In Woodford and Jones, however, the United States Supreme Court made explicit that it is the individual prison’s grievance policy, not the PLRA, that defines the boundaries of proper exhaustion. 126 S. Ct. at 2386; 127 S. Ct. at 923. In the present case, MDOC Policy Directive 03.02.130 requires a grievant to name each individual involved in the issue being grieved. Therefore, “proper exhaustion” in this case requires the grievant to specifically name each individual involved in the incident being grieved. Because Plaintiff failed to name either Dr. Hutchinson or Dr. Mathai in a single grievance, he failed to properly exhaust his administrative remedies against them and his claims should be dismissed pursuant to 42 U.S.C. § 1997e(a).
In his final argument, Plaintiff argues that his failure to properly exhaust his grievances as to Dr. Hutchinson and Dr. Mathai due to his failure to name either of them in his two grievances should be excused because his two grievances were considered on their merits, rather than being rejected for failing to specifically name the moving Defendants. In making this argument, Plaintiff relies on outdated cases from other circuits or other district courts, which found that where an untimely filed grievance was considered on its merits, the Defendants cannot later contend that the Plaintiff failed to exhaust that grievance. Many of the cases cited by Plaintiff, however, were decided well before the Supreme Court clarified the exhaustion requirement in Woodford and Jones. Furthermore, the factual scenarios of the cases cited by
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Plaintiff are substantially different than that of the instant action. While Plaintiff’s “considered on the merits” argument may make some sense with respect to the issue of timeliness, as the grievance reviewer could clearly tell from the face of the grievance whether the grievance complied with the time requirements of the applicable grievance policy, the limited rationale of such an argument does not make sense with respect to a grievant’s failure to name everyone that he alleges was involved in the incidents being grieved. No one is in a better position than the Plaintiff to identify each individual with whom he has an issue. The person reviewing the grievance could not possibly be expected to guess which persons were involved in every issue being grieved. Therefore, the grievance policy properly places this burden on the grievant, requiring him to specifically name each individual involved in the issue being grieved. As demonstrated repeatedly above, and as conceded by Plaintiff, he failed to name either Dr. Hutchinson or Dr. Mathai in a grievance. Therefore, he failed to properly exhaust his administrative remedies as to Dr. Hutchinson and Dr. Mathai, and his claims against them should be dismissed pursuant to 42 U.S.C. § 1997e(a).
RELIEF REQUESTED WHEREFORE, the Defendants, CRAIG HUTCHINSON, M.D. and BENCY MATHAI, M.D., respectfully request this Honorable Court to grant their motion, dismiss Plaintiff’s claims against them with prejudice, and tax all reasonable costs and attorney’s fees against Plaintiff where permissible.
Respectfully submitted, CHAPMAN AND ASSOCIATES, P.C.

Dated: June 25, 2009

s/Brian J. Richtarcik 40950 Woodward Ave., Suite 120 Bloomfield Hills, MI. 48304 (248) 644-6326 Brichtarcik@chapmanlawfirmpc.com P49390
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PROOF OF SERVICE I hereby certify that on June 25, 2009, I presented the foregoing paper to the Clerk of the Court for filing and uploading to the ECF system, which will send notification of such filing to the attorneys of record listed herein and I hereby certify that I have mailed by US Postal Service the document to the involved non participants.
s/Brian J. Richtarcik 40950 Woodward Ave., Suite 120 Bloomfield Hills, MI 48304 (248) 644-6326 Brichtarcik@chapmanlawfirmpc.com P49390
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 Case 2:07-cv-14644-ADT-CEB Document 86 Filed 05/19/2009 Page 1 of 17

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

DALLAS COBBS, #164276,

Plaintiff, v.

Case No.: 07-CV-14644 Hon. Anna Diggs Taylor Magistrate Judge Charles E. Binder

GEORGE J. PRAMSTALLER, CRAIG HUTCHINSON, WILLIAM BORGERDING, MARCELLA CLARK, JAMES DILLON, ROLDERT FISCHRÈ, KEITH IVENS, GREGORY NAYLOR, BENCY MATHAI, BONITA DAVIS NEIGHBORS, WALTER ORMES, HARESH PANDYA, CHRIS SAMY, individually and in their official capacities, and CORRECTIONAL MEDICAL SERVICES, INC.,

Defendants.

Paul D. Reingold (P27594) MICHIGAN CLINICAL LAW PROGRAM Attorney for Plaintiff 363 Legal Research Building 801 Monroe Street Ann Arbor, MI 48109-1215 (734) 763-4319
Clifton B. Schneider (P70582) Michigan Department of Attorney General Corrections Division P.O. Box 30217 Lansing, MI 48909 (517) 335-7021

CHAPMAN AND ASSOCIATES, P.C. Ronald W. Chapman (P37603) Brian J. Richtarcik (P49390) Attorneys for Defendants, Correctional Medical Services, Inc., Craig Hutchinson, MD and Bency Mathai, MD 40950 N. Woodward Ave., Suite 120 Bloomfield Hills, MI 48304 (248) 644-6326
C. Adam Purnell (P52634) James T. Farrell (P35400) Assistant Attorney General Attorney for Defendants Dillon and Fischre PO Box 30736 Lansing, MI 48909 (517) 373-6434

DEFENDANTS, CRAIG HUTCHINSON, M.D. AND BENCY MATHAI, M.D.’S MOTION TO DISMISS PURSUANT TO
42 U.S.C. § 1997e(a) AND FED. R. CIV. P. 12(b)(6)

Case 2:07-cv-14644-ADT-CEB Document 86 Filed 05/19/2009 Page 2 of 17
NOW COME the Defendants, CRAIG HUTCHINSON, M.D., and BENCY MATHAI, M.D., by and through their attorneys, CHAPMAN AND ASSOCIATES, P.C., and for their Motion To Dismiss Pursuant To 42 U.S.C. § 1997e(a) And Fed. R. Civ. P. 12(b)(6), state as follows:
1. On or about October 30, 2007, Plaintiff filed his pro se civil rights Complaint. 2. At the time of the alleged events giving rise to the present action, Plaintiff was
incarcerated by the Michigan Department of Corrections at the Ryan Correctional Facility, located in Detroit, Michigan, where Plaintiff is currently incarcerated. 3. On March 27, 2008, Magistrate Judge Charles E. Binder entered an Order of Assignment of Counsel, ordering that Paul D. Reingold and the Michigan Clinical Law Program were assigned to represent Plaintiff in this action. 4. On June 10, 2008, Plaintiff, through counsel, filed his First Amended Complaint. Plaintiff’s First Amended Complaint alleges claims of deliberate indifference to Plaintiff’s alleged cataracts in violation of the Eighth Amendment pursuant to 42 U.S.C. § 1983, and names 14 Defendants, including Craig Hutchinson, M.D. and Bency Mathai, M.D. 5. Prior to filing the instant action, however, Plaintiff failed to exhaust his administrative remedies as to Dr. Hutchinson and Dr. Mathai. 6. Therefore, Plaintiff’s claims should be dismissed because they are barred by 42 U.S.C. § 1997e(a). Porter v. Nussle, 534 U.S. 516, 524, 122 S. Ct. 983 (2002). 7. The moving Defendants rely upon the facts and arguments set forth in their attached supporting brief as if more fully restated herein.
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8. On Thursday, May 14, 2009, counsel for the moving Defendants spoke with Plaintiff’s counsel in an attempt to obtain concurrence in the relief sought in this motion, and same was denied.
WHEREFORE, the Defendants, CRAIG HUTCHINSON, M.D. and BENCY MATHAI, M.D., respectfully request this Honorable Court to grant their motion, dismiss Plaintiff’s claims against them with prejudice, and tax all reasonable costs and attorney’s fees against Plaintiff where permissible.
Respectfully submitted, CHAPMAN AND ASSOCIATES, P.C.

Dated: May 19, 2009

s/Brian J. Richtarcik 40950 N. Woodward Ave., Suite 120 Bloomfield Hills, MI. 48304 (248) 644-6326 Brichtarcik@chapmanlawfirmpc.com P49390

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Case 2:07-cv-14644-ADT-CEB Document 86 Filed 05/19/2009 Page 4 of 17

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

DALLAS COBBS, #164276,

Plaintiff, v.

Case No.: 07-CV-14644 Hon. Anna Diggs Taylor Magistrate Judge Charles E. Binder

GEORGE J. PRAMSTALLER, CRAIG HUTCHINSON, WILLIAM BORGERDING, MARCELLA CLARK, JAMES DILLON, ROLDERT FISCHRÈ, KEITH IVENS, GREGORY NAYLOR, BENCY MATHAI, BONITA DAVIS NEIGHBORS, WALTER ORMES, HARESH PANDYA, CHRIS SAMY, individually and in their official capacities, and CORRECTIONAL MEDICAL SERVICES, INC.,

Defendants.

Paul D. Reingold (P27594) MICHIGAN CLINICAL LAW PROGRAM Attorney for Plaintiff 363 Legal Research Building 801 Monroe Street Ann Arbor, MI 48109-1215 (734) 763-4319
Clifton B. Schneider (P70582) Michigan Department of Attorney General Corrections Division P.O. Box 30217 Lansing, MI 48909 (517) 335-7021

CHAPMAN AND ASSOCIATES, P.C. Ronald W. Chapman (P37603) Brian J. Richtarcik (P49390) Attorneys for Defendants, Correctional Medical Services, Inc., Craig Hutchinson, MD and Bency Mathai, MD 40950 N. Woodward Ave., Suite 120 Bloomfield Hills, MI 48304 (248) 644-6326
C. Adam Purnell (P52634) James T. Farrell (P35400) Assistant Attorney General Attorney for Defendants Dillon and Fischre PO Box 30736 Lansing, MI 48909 (517) 373-6434

BRIEF IN SUPPORT OF DEFENDANTS, CRAIG HUTCHINSON, M.D. AND BENCY MATHAI, M.D.’S MOTION TO DISMISS PURSUANT TO
42 U.S.C. § 1997e(a) AND FED. R. CIV. P. 12(b)(6)
PROOF OF SERVICE

Case 2:07-cv-14644-ADT-CEB Document 86 Filed 05/19/2009 Page 5 of 17
TABLE OF CONTENTS PAGE
INDEX OF AUTHORITIES........................................................................................................... ii INDEX OF EXHIBITS.................................................................................................................. iii ISSUE PRESENTED..................................................................................................................... iv CONTROLLING/APPROPRIATE AUTHORITY FOR RELIEF SOUGHT ................................v STATEMENT OF FACTS ..............................................................................................................1 STANDARD OF REVIEW .............................................................................................................1 ARGUMENT ...................................................................................................................................2
Plaintiff’s Claims Of Deliberate Indifference Against Craig Hutchinson, M.D. And Bency Mathai, M.D. Brought Pursuant To 42 U.S.C. § 1983 Should Be Dismissed Because Plaintiff’s Claims Are Barred By 42 U.S.C. § 1997e(a) Due To Plaintiff’s Failure To Exhaust His Administrative Remedies Prior To Filing The Present Action As To The Aforementioned Defendants ..............................................2
A. Grievance RRF-2004-12-1151-12z .............................................................4 B. Grievance RRF-2006-11-747-12g ...............................................................6 CONCLUSION................................................................................................................................7 RELIEF REQUESTED....................................................................................................................8
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FEDERAL CASES

INDEX OF AUTHORITIES

PAGE

Bassett v. National Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008) .........................2

Booth v. Churner, 532 U.S. 731, 741, 121 S. Ct. 1819 (2001)....................................................v, 2

Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir. 1998) ..................................................................1

In re Delorean Motor Co., 991 F.2d 1236, 1240 (6th Cir. 1993).....................................................2

Jenkins v. McKeithen, 395 U.S. 411, 422, 89 S. Ct. 1843 (1969)...................................................1

Jones v. Bock, 127 S. Ct. 910, 923, 166 L. Ed. 2d 798 (2007)....................................................v, 3

Porter v. Nussle, 534 U.S. 516, 524, 122 S. Ct. 983 (2002) ....................................................v, 2, 4

Spencer v. Bouchard, 449 F.3d 721, 725-26 (6th Cir. 2006)...............................................v, 2, 5, 6

Sullivan v. Kasajaru, 2009 U.S. App. LEXIS 5362 (6th Cir. March 13, 2009) ..................v, 3, 5, 6

Woodford v. Ngo, 126 S. Ct. 2378, 2386, 165 L. Ed. 2d 368 (2006)..............................v, 3, 5, 6, 7

Zinermon v. Burch, 494 U.S. 113, 117, 110 S. Ct. 975 (1990) .......................................................1

FEDERAL STATUTES 42 U.S.C. § 1983............................................................................................................ iv, v, 1, 2, 7 42 U.S.C. § 1997e(a)...................................................................................................... iv, v, 2, 4, 7

FEDERAL RULES OF CIVIL PROCEDURE Fed. R. Civ. P. 12(b)(6)............................................................................................................1, 2, 7

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INDEX OF EXHIBITS

Exhibit A Attachment 1 Attachment 2 Attachment 3 Attachment 4
Exhibit B

Affidavit of James Armstrong MDOC Policy Directive 03.02.130 (December 19, 2003 version) MDOC Grievance Inquiry Screen for Dallas Cobbs, #164276 Grievance RRF-2004-12-1151-12z Grievance RRF-2006-11-757-12g Sullivan v. Kasajaru. 2009 U.S. App. LEXIS 5362 (6th Cir. March 13, 2009)

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ISSUE PRESENTED

WHETHER PLAINTIFF’S CLAIMS OF DELIBERATE INDIFFERENCE AGAINST CRAIG HUTCHINSON, M.D. AND BENCY MATHAI, M.D. BROUGHT PURSUANT TO 42 U.S.C. § 1983 SHOULD BE DISMISSED WHEN PLAINTIFF’S CLAIMS ARE BARRED BY 42 U.S.C. § 1997e(a) DUE TO PLAINTIFF’S FAILURE TO EXHAUST HIS ADMINISTRATIVE REMEDIES PRIOR TO FILING THE PRESENT ACTION AS TO THE AFOREMENTIONED DEFENDANTS.

Defendants Answer:

Yes.

Plaintiff Answers:

No.

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CONTROLLING/APPROPRIATE AUTHORITY FOR RELIEF SOUGHT According to 42 U.S.C. § 1997e(a), a prisoner may not bring a claim under 42 U.S.C. § 1983 until the prisoner has exhausted all administrative remedies that are available. Porter v. Nussle, 534 U.S. 516, 524, 122 S. Ct. 983 (2002). The Court has made clear that exhaustion of administrative remedies is a mandatory precursor to a prisoner’s filing a lawsuit in federal court. Booth v. Churner, 532 U.S. 731, 741, 121 S. Ct. 1819 (2001). The exhaustion requirement requires inmates to give prison officials fair notice of their alleged misconduct by alleging in their grievance the misconduct or mistreatment of the Defendant. Spencer v. Bouchard, 449 F.3d 721, 725-26 (6th Cir. 2006). The exhaustion requirement of 42 U.S.C. § 1997e(a) also requires an inmate to “properly exhaust” his administrative remedies prior to filing suit, which means that the inmate must comply with the specific requirements of the individual prison’s grievance policy. Woodford v. Ngo, 126 S. Ct. 2378, 2386, 165 L. Ed. 2d 368 (2006). “The level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison's requirements, and not the Prison Litigation Reform Act (“PLRA”), that define the boundaries of proper exhaustion.” Jones v. Bock, 127 S. Ct. 910, 923, 166 L. Ed. 2d 798 (2007). Where a prison’s grievance policy specifically requires a grievant to name each person against whom the grievance is filed, a prisoner-Plaintiff’s failure to specifically name each Defendant amounts to a failure to properly exhaust that grievance as to each non-named Defendant. Sullivan v. Kasajaru, 2009 U.S. App. LEXIS 5362, *3 (6th Cir. March 13, 2009) (Exhibit B).
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STATEMENT OF FACTS On or about October 30, 2007, Plaintiff filed his pro se civil rights Complaint. (Dkt #1). At the time of the alleged events giving rise to the present action, Plaintiff was incarcerated by the Michigan Department of Corrections at the Ryan Correctional Facility, located in Detroit, Michigan, where Plaintiff is currently incarcerated. On March 27, 2008, Magistrate Judge Charles E. Binder entered an Order of Assignment of Counsel, ordering that Paul D. Reingold and the Michigan Clinical Law Program were assigned to represent Plaintiff in this action. (Dkt #24). On March 31, 2008, Paul D. Reingold entered an Appearance on behalf of Plaintiff. (Dkt. #27). On June 10, 2008, Plaintiff, through counsel, filed his First Amended Complaint. (Dkt #38). Plaintiff’s First Amended Complaint alleges claims of deliberate indifference to Plaintiff’s alleged cataracts in violation of the Eighth Amendment pursuant to 42 U.S.C. § 1983. (Dkt #38). Plaintiff’s First Amended Complaint names 14 Defendants, including Craig Hutchinson, M.D. and Bency Mathai, M.D. (Dkt #38).
STANDARD OF REVIEW A complaint may be dismissed for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). In considering a Rule 12(b)(6) motion to dismiss, the court must accept all well-pleaded allegations as true and construe them in the light most favorable to the Plaintiff. See Zinermon v. Burch, 494 U.S. 113, 117, 110 S. Ct. 975 (1990); Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir. 1998). A complaint will not be dismissed for failure to state a claim unless it appears beyond a doubt that the Plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Jenkins v. McKeithen, 395 U.S. 411, 422, 89 S. Ct. 1843 (1969). While decidedly liberal, the standard under Rule 12(b)(6) requires more than the
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bare assertion of legal conclusions. In re Delorean Motor Co., 991 F.2d 1236, 1240 (6th Cir. 1993). Rather, a Complaint must contain allegations respecting all of the material elements of a claim to sustain a recovery under some viable legal theory. Id.
“When a court is presented with a Rule 12(b)(6) motion, it may consider the Complaint and any exhibits attached thereto, public records, items appearing in the record of the case and exhibits attached to defendant’s motion to dismiss so long as they are referred to in the Complaint and are central to the claims contained therein.” Bassett v. National Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008).
ARGUMENT Plaintiff’s Claims Of Deliberate Indifference Against Craig Hutchinson, M.D. And Bency Mathai, M.D. Brought Pursuant To 42 U.S.C. § 1983 Should Be Dismissed Because Plaintiff’s Claims Are Barred By 42 U.S.C. § 1997e(a) Due To Plaintiff’s Failure To Exhaust His Administrative Remedies Prior To Filing The Present Action As To The Aforementioned Defendants.
According to 42 U.S.C. § 1997e(a), a prisoner may not bring a claim under 42 U.S.C. § 1983 until the prisoner has exhausted all administrative remedies that are available. Porter v. Nussle, 534 U.S. 516, 524, 122 S. Ct. 983 (2002). The Court has made clear that exhaustion of administrative remedies is a mandatory precursor to a prisoner’s filing a lawsuit in federal court. Booth v. Churner, 532 U.S. 731, 741, 121 S. Ct. 1819 (2001).
The exhaustion requirement requires inmates to give prison officials fair notice of their alleged misconduct by alleging in their grievance the misconduct or mistreatment of the Defendant. Spencer v. Bouchard, 449 F.3d 721, 725-26 (6th Cir. 2006). The exhaustion requirement of 42 U.S.C. § 1997e(a) also requires an inmate to “properly exhaust” his administrative remedies prior to filing suit, which means that the inmate must comply with the
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specific requirements of the individual prison’s grievance policy. Woodford v. Ngo, 126 S. Ct. 2378, 2386, 165 L. Ed. 2d 368 (2006). “The level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison's requirements, and not the Prison Litigation Reform Act (“PLRA”), that define the boundaries of proper exhaustion.”1 Jones v. Bock, 127 S. Ct. 910, 923, 166 L. Ed. 2d 798 (2007). The United States Court of Appeals for the Sixth Circuit recently addressed this very point in the case of Sullivan v. Kasajaru. 2009 U.S. App. LEXIS 5362 (6th Cir. March 13, 2009) (Exhibit B). In that case the Court held that where the grievance policy in place at the time in which the Plaintiff filed his grievance required a grievant to specifically name each person against whom the grievance was filed, the Plaintiff’s failure to specifically name each Defendant in his grievance amounted to a failure to properly exhaust that grievance as to each nonnamed Defendant. Id. at *3 (Exhibit B). Under Jones v. Bock, the burden now rests on the Defendants to show whether the Plaintiff exhausted his administrative remedies. 127 S. Ct. at 921. Nevertheless, it is still incumbent upon the Plaintiff to comply with the specific requirements of the relevant administrative grievance procedure. Id. at 923.
Prior to filing the instant action, Plaintiff pursued two grievances through Step III of the grievance process. (Exhibit A, ¶18 and Attachment 2). Those grievances are as follows: 1) RRF-2004-12-1151-12z (Exhibit A, Attachment 3); and 2) RRF-2006-11-757-12g (Exhibit A, Attachment 4). (Exhibit A, ¶18 and Attachment 2). During the period of time in which Plaintiff filed these two grievances, the December 19, 2003 version of MDOC Policy Directive 03.02.130 was the relevant grievance policy. (Exhibit A, ¶7 and Attachment 1).
1 The policy in effect during the time relevant to Plaintiff’s claims is different from the one at issue in Jones v. Bock, 127 S. Ct. 910, 916; 166 L. Ed. 2d 798 (2007). MDOC has since revised its policy several times. The version of the grievance policy that is relevant to this action is the December 19, 2003 version (Exhibit A, Attachment 1).
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Pursuant to MDOC Policy Directive 03.02.130, there are four stages that an inmate must satisfy, each within specific time limits, prior to seeking judicial review. (Exhibit A, Attachment 1). First, within two days of discovering a grievable issue, the inmate must attempt to verbally resolve the issue with those involved. (Exhibit A, Attachment 1, ¶R). If the attempted resolution is unsuccessful, only then may an inmate file a Step I grievance form, and must do so within five business days of the attempted resolution. (Exhibit A, Attachment 1, ¶X). If the inmate is not satisfied with the response at Step I, he may request a Step II appeal form within five days of the response, and has an additional five days within which to file the Step II appeal. (Exhibit A, Attachment 1, ¶DD). If the inmate is dissatisfied with the result at Step II, he has ten business days to appeal to Step III of the grievance process. (Exhibit A, Attachment 1, ¶HH). The Step III response concludes the administrative grievance process set forth in MDOC Policy Directive 03.02.130. In filing a grievance and/or grievance appeals, an inmate must state the facts involved with the issue being grieved and must also include the specific dates, times, places, and names of all those involved in the issue being grieved. (Exhibit A, Attachment 1, ¶T).
In the present case, as demonstrated more fully below, Plaintiff failed to exhaust either grievance as to Dr. Hutchinson and Dr. Mathai. Therefore, Plaintiff’s claims against the moving Defendants must be dismissed as they are barred by 42 U.S.C. § 1997e(a). Porter, 534 U.S. at 524.
A. Grievance RRF-2004-12-1151-12z (Exhibit A, Attachment 3). The first grievance that Plaintiff pursued through Step III of the grievance procedure, and which is therefore relevant to the discussion of exhaustion, is Grievance RRF-2004-12-1151-12z
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(Exhibit A, Attachment 3). Plaintiff failed to exhaust this grievance against either of the moving Defendants.
First, and most importantly, this grievance was not filed against Dr. Hutchinson or Dr. Mathai. Nowhere in this grievance does Plaintiff name Dr. Hutchinson or Dr. Mathai. (See Exhibit A, Attachment 3). By failing to name either of the moving Defendants in the body of this grievance, Plaintiff failed to give either Dr. Hutchinson or Dr. Mathai fair notice of the misconduct alleged against them in the Complaint, as required by the exhaustion requirement. See Spencer, 449 F.3d at 725-26. Furthermore, to the extent that Plaintiff may allege that this grievance was filed against the moving Defendants, his failure to name them in the body of this grievance is a failure to comply with the specific requirements of MDOC Policy Directive 03.02.130. According to Paragraph T of the grievance policy, a grievant must specifically name each person against whom the grievance is filed. See Exhibit A, ¶T. By failing to name each of the moving Defendants in this grievance, Plaintiff failed to comply with the requirements of the grievance policy, thereby failing to properly exhaust this grievance. Woodford, 126 S.Ct. at 2386; Sullivan, 2009 U.S. App. LEXIS 5362, at *3 (Exhibit B). Furthermore, to the extent that Plaintiff argues that he filed this grievance against the moving Defendants, he also failed to attempt to resolve the issue being grieved with each of the moving Defendants as required by Paragraph R of the grievance policy. According to the provisions of Paragraph R, a grievant must attempt to verbally resolve the issue being grieved with each person involved. Prior to filing this grievance, Plaintiff merely sent alleged medical kites to Health Care. See Exhibit A. Attachment 3. Plaintiff did not attempt to verbally resolve the issue being grieved with anyone, much less the moving Defendants. Therefore, Plaintiff failed to comply with the requirements of
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MDOC Policy Directive 03.02.130, thereby failing to properly exhaust this grievance. Woodford, 126 S.Ct. at 2386.
B. Grievance RRF-2006-11-747-12g (Exhibit A, Attachment 4). The second grievance that is relevant to the discussion of exhaustion is Grievance RRF2006-11-747-12g (Exhibit A, Attachment 4). Plaintiff also failed to exhaust this grievance against either of the moving Defendants. Again, as was the case with the grievance discussed above, Plaintiff did not file Grievance RRF-2006-11-747-12g against either Dr. Hutchinson or Dr. Mathai. (See Exhibit A, Attachment 4). Again, Plaintiff failed to name either Dr. Hutchinson or Dr. Mathai in this grievance. To the extent that Plaintiff argues that this grievance was filed against either of the moving Defendants, Plaintiff failed to give either Dr. Hutchinson or Dr. Mathai fair notice of the wrongdoing alleged against them in the Complaint, as he did not specifically name them in this grievance or state any wrongdoing against them. Therefore, Plaintiff failed to exhaust this grievance as to either Dr. Hutchinson or Dr. Mathai. Spencer, 449 F.3d at 725-26. By failing to specifically name either Dr. Hutchinson or Dr. Mathai in the body of this grievance, Plaintiff also failed to comply with the specific requirements of the grievance policy. Paragraph T of the grievance policy requires the grievant to specifically name each person against whom it is filed in the body of the grievance. (See Exhibit A, Attachment 1). By failing to name either Dr. Hutchinson or Dr. Mathai in this grievance, Plaintiff failed to comply with the requirements of the grievance policy, thereby failing to properly exhaust this grievance. Woodford, 126 S.Ct. at 2386; Sullivan, 2009 U.S. App. LEXIS 5362, at *3 (Exhibit B). To the extent that Plaintiff alleges he filed this grievance against either of the moving Defendants, Plaintiff also failed to
6

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properly exhaust this grievance by failing to comply with Paragraph R of the grievance policy, which requires the grievant to attempt to verbally resolve the issue being grieved with those involved. (See Exhibit A, Attachment 1). In filing this grievance, Plaintiff merely alleges that he attempted to resolve the issue being grieved by submitting kites to healthcare. (See Exhibit A, Attachment 4). Therefore, Plaintiff did not attempt to verbally resolve the issue being grieved with anyone, much less Dr. Hutchinson or Dr. Mathai. By failing to attempt to verbally resolve the issue being grieved with either of the moving Defendants, Plaintiff also failed to properly exhaust this grievance as to the moving Defendants. Woodford, 126 S.Ct. at 2386.
CONCLUSION Plaintiff’s claims against Dr. Hutchinson and Dr. Mathai should be dismissed because Plaintiff’s claims against them are barred by 42 U.S.C. § 1997e(a). Although Plaintiff pursued two separate grievances through Step III of the grievance process available to him through the Michigan Department of Corrections, neither grievance was filed against Dr. Hutchinson or Dr. Mathai. Furthermore, to the extent that Plaintiff alleges that they were filed against the moving Defendants, Plaintiff failed to specifically name either of the moving Defendants in the body of the grievance and failed to attempt to verbally resolve the issue being grieved with either Defendant, thereby failing to “properly exhaust” each grievance. Because Plaintiff failed to exhaust his administrative remedies prior to bringing the instant action pursuant to 42 U.S.C. § 1983, as required by 42 U.S.C. § 1997e(a), Plaintiff’s claims are barred, and, therefore, he failed to state a claim against the moving Defendants upon which relief can be granted. Therefore, Plaintiff’s claims against the moving Defendants should be dismissed pursuant to 42 U.S.C. § 1997e(a) and Fed. R. Civ. P. 12(b)(6) with prejudice.
7

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RELIEF REQUESTED WHEREFORE, the Defendants, CRAIG HUTCHINSON, M.D. and BENCY MATHAI, M.D., respectfully request this Honorable Court to grant their motion, dismiss Plaintiff’s claims against them with prejudice, and tax all reasonable costs and attorney’s fees against Plaintiff where permissible.
Respectfully submitted, CHAPMAN AND ASSOCIATES, P.C.

Dated: May 19, 2009

s/Brian J. Richtarcik 40950 N. Woodward Ave., Suite 120 Bloomfield Hills, MI. 48304 (248) 644-6326 Brichtarcik@chapmanlawfirmpc.com P49390

PROOF OF SERVICE
I hereby certify that on May 19, 2009, I presented the foregoing paper to the Clerk of the Court for filing and uploading to the ECF system, which will send notification of such filing to the attorneys of record listed herein and I hereby certify that I have mailed by US Postal Service the document to the involved non participants.
s/Brian J. Richtarcik 40950 N. Woodward Ave., Suite 120 Bloomfield Hills, MI 48304 (248) 644-6326 Brichtarcik@chapmanlawfirmpc.com P49390

8

 
 Case 2:07-cv-14644-ADT-CEB Document 94 Filed 07/30/2009 Page 1 of 9

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DALLAS COBBS,

Plaintiff,

CASE NO. 07-CV-14644

v.

DISTRICT JUDGE ANNA DIGGS TAYLOR

MAGISTRATE JUDGE CHARLES BINDER

GEORGE J. PRAMSTALLER,

CRAIG HUTCHINSON, WILLIAM

BORGERDING, MARCELLA CLARK,

KEITH IVENS, GREGORY NAYLOR,

BENCY MATHAI, BONITA DAVIS

NEIGHBORS, HARESH PANDYA, CHRIS SAMY,

individually and in their official capacities,

and CORRECTIONAL MEDICAL

SERVICES, INC.,

Defendants.1 /

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION ON DEFENDANT HUTCHINSON AND MATHAI’S MOTION TO DISMISS
(Doc. 86)

I. RECOMMENDATION

For the reasons set forth below, IT IS RECOMMENDED that Defendants’ Motion to

Dismiss be DENIED.

II. REPORT A. Introduction By order of U.S. District Judge Anna Diggs Taylor, this case was referred to the
undersigned magistrate judge for general case management on November 7, 2007. (Doc. 3.) The

1Other defendants were dismissed on September 23, 2008, and June 24, 2009.

Case 2:07-cv-14644-ADT-CEB Document 94 Filed 07/30/2009 Page 2 of 9
pending motion is brought by the “CMS Defendants,” i.e., Defendants Hutchinson and Mathai. (Doc. 86 at 1.)
Plaintiff filed a response opposing Defendants’ motion (Doc. 88), and Defendants filed a reply. (Doc. 91.) After review of the documents, I conclude that these motions are ready for Report and Recommendation without oral argument pursuant to E.D. Mich. LR 7.1(e)(2).
B. Background Plaintiff is an inmate in the custody of the Michigan Department of Corrections (“MDOC”) who was incarcerated at all times relevant to this litigation at the Ryan Correctional Facility in Detroit, Michigan. (Compl., Doc. 1 at 2.) The facts are largely undisputed and are provided in detail in the previous Report and Recommendation recommending denial of Defendants’ motion for summary judgment (Doc. 77) that was adopted on February 12, 2009. (Doc. 82.) Plaintiff’s complaint alleges that although he was diagnosed with cataracts in both eyes in 2004, he was given surgery on only one eye and was repeatedly denied requests for cataract surgery on the remaining eye by members of the Medical Services Advisory Committee (“MSAC”) and medical staff of Correctional Medical Services (“CMS”) for several years until he was finally provided with surgery on April 14, 2008. Defendants argue that although Plaintiff pursued two grievances through Step III of the requisite grievance process, his claims against them are unexhausted because he failed to name Defendant Hutchinson or Mathai in those grievances. (Doc. 86 at 11-16.) C. Motion Standards In facing a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure, “[t]he court must construe the complaint in the light most favorable to the plaintiff, accept all the factual allegations as true, and determine whether the plaintiff can prove
2

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a set of facts in support of its claims that would entitle it to relief.” Bovee v. Coopers & Lybrand C.P.A., 272 F.3d 356, 360 (6th Cir. 2001). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007), a complaint must be dismissed pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted if the complaint does not plead “enough facts to state a claim to relief that is plausible on its face.” Id. at 570 (rejecting the traditional Rule 12(b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)). Under Rule 12(b)(6), “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citations omitted). Even though a complaint need not contain “detailed” factual allegations, its “[f]actual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. (citations omitted).
The Supreme Court recently explained that the “tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, ___U.S.___, 129 S. Ct. 1937, 1949 (2009) (finding assertions that a defendant was the “principal architect” of an invidious policy and another defendant was “instrumental” in adopting and executing a policy of invidious discrimination were insufficient to survive a motion to dismiss because they were “conclusory” and thus not entitled to the presumption of truth). Although Rule 8 “marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era,” it “does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Id. at 1950. “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial
3

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experience and common sense.” Id. Thus, “a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. . . . When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id.
Where a plaintiff is proceeding without the assistance of counsel, the court is required to liberally construe the complaint and hold it to a less stringent standard than a similar pleading drafted by an attorney. Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972); Hahn v. Star Bank, 190 F.3d 708, 715 (6th Cir. 1999). However, courts may not rewrite a complaint to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999), nor may courts construct the plaintiff’s legal arguments for him, Small v. Endicott, 998 F.2d 411 (7th Cir. 1993). Neither may the court “conjure up unpled allegations,” McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979), nor create a claim for Plaintiff, Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975), because to hold otherwise would require the court “to explore exhaustively all potential claims of a pro se plaintiff, [and] would also transform the district court from its legitimate advisory role to the improper role of an advocate seeking out the strongest arguments and most successful strategies for a party.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
D. Analysis and Conclusions Defendants argue that although Plaintiff pursued two grievances through Step III of the requisite grievance process, his claims against them are unexhausted because he failed to name Defendant Hutchinson or Mathai in those grievances. (Doc. 86 at 11-16.) Plaintiff counters that when he filed the grievances and even when he filed the instant lawsuit, he did not know who had
4

Case 2:07-cv-14644-ADT-CEB Document 94 Filed 07/30/2009 Page 5 of 9
denied him surgery; thus, he included the John Doe defendants. (Doc. 88 at 8.) Plaintiff further argues that he sufficiently identified the defendants by naming the MSAC and CMS in his grievances. (Id. at 9-10.) Finally, Plaintiff argues that since the MDOC considered his grievances on the merits without requesting additional names, he has adequately exhausted his remedies and that Defendants’ motion attempts to improperly shift the burden to prove the affirmative defense of failure to exhaust upon Plaintiff to prove exhaustion. (Id. at 10-11.)
Prisoner civil rights cases are subject to the Prison Litigation Reform Act’s (“PLRA”) mandate that “[n]o action shall be brought with respect to prison conditions under § 1983 . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Suits “brought with respect to prison conditions” includes “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, 152 L. Ed. 2d 12 (2002). To exhaust a claim, a prisoner must proceed through all of the steps of a prison’s grievance process, because an inmate “cannot abandon the process before completion and claim that he has exhausted his remedies.” Hartsfield v. Vidor, 199 F.3d 305, 309 (6th Cir. 1999). The Supreme Court held in Woodford v. Ngo, 548 U.S. 81, 126 S. Ct. 2378, 165 L. Ed. 2d 368 (2006), that failure to “properly” exhaust bars suit in federal court. “Proper exhaustion” means that the plaintiff complied with the administrative “agency’s deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.” Id. at 2386.
The Supreme Court provided further clarification of the PLRA’s exhaustion rule in Jones v. Bock, 549 U.S. 199, 127 S. Ct. 910, 166 L. Ed. 2d 798 (2007). The Jones Court struck down
5

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the Sixth Circuit’s procedural rule placing the burden on prisoners to plead and prove exhaustion in their complaint, holding instead that failure to exhaust is an affirmative defense that must be raised by the defendant. Id. at 921. The Court further held that “[t]he level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison’s requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Jones, 127 S. Ct. at 922-23 (emphasis added).
The Michigan Department of Corrections provides prisoners with a grievance procedure for bringing forward their concerns and complaints. See MDOC Policy Directive (“PD”) 03.02.130 (eff. April 28, 2003).2 The MDOC’s grievance procedure consists of steps that a prisoner must follow prior to filing a complaint in court, and each step is accompanied by a time limit. First, within two business days after becoming aware of a grievable issue, an inmate should attempt to verbally resolve the dispute with those involved. MDOC PD 03.02.130(R). If such an attempt is impossible or unsuccessful, the inmate must then submit a Step I grievance form within five days. MDOC PD 03.02.130(X). The grievance policy provides the following instructions regarding what information needs to be included in a grievance:
The issues shall be stated briefly. Information provided shall be limited to the facts involving the issue being grieved (i.e., who, what, when, where, why, how). Dates, times, places and names of all those involved in the issue being grieved are to be included. MDOC PD 03.02.130(T).3
2The policy directive was superceded in December 2003, but since the conduct at issue here occurred before that date, this April 2003 version applies.
3I note that the MDOC grievance policy referred to by the Supreme Court in Jones v. Bock was the November 1, 2000, version, see Jones, 127 S. Ct. at 916, which did not require inmates to include in their grievances the dates, times, places and names of all those involved. The policy directive at issue here – the April 2003 version – clearly requires this higher level of specificity.
6

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The prison staff is required to respond in writing to a Step I grievance within fifteen days unless an extension is granted. MDOC PD 03.02.130(Y). If the inmate is not satisfied with the response, or does not receive a response within fifteen days, he then must request a Step II appeal form within five days, and has an additional five days to submit it. MDOC PD 03.02.130(DD). Once again, if the inmate is dissatisfied with the response at Step II or does not receive a Step II response within fifteen days, he has ten business days to submit a Step III appeal to the Prisoner Affairs Section. MDOC PD 03.02.130(HH). The Step III response concludes the administrative grievance process.
I first suggest that Plaintiff’s grievances which named MSAC and CMS wherein he consistently complained of being denied cataract surgery by the MSAC and CMS committees is sufficient to exhaust his remedies as to the staff (doctors) and members of those organizations who were responsible for making the complained-of decisions. See Taylor v. Holmes, No. 1:08-cv-952, 2009 WL 2170250, at *5 (W.D. Mich. July 21, 2009) (claims against specific staff member doctors exhausted despite Plaintiff’s failure to name them in grievances against “health care”).
I further suggest that, based on the MDOC’s decision to analyze the grievances on the merits, the procedural default rule set forth in Woodford does not apply. See Abbruzzino v. Hutchinson, No. 08-CV-11534, 2009 WL 799245, at *5, *16 (E.D. Mich. Mar. 24, 2009) (neither Jones v. Bock nor Woodford changed principle that where merits of grievances are addressed, procedural default defect is waived and cannot form basis of a failure to exhaust defense; thus, grievances that failed to name particular defendant doctor but which were analyzed by the MDOC and were not rejected as vague are exhausted); Downing v. Correctional Medical Services, Inc., No. 1:06-CV-232, 2009 WL 511849, at *7 (W.D. Mich. Feb. 26, 2009) (where grievance was addressed on the merits and where the plaintiff complained of lack of proper treatment by all health
7

Case 2:07-cv-14644-ADT-CEB Document 94 Filed 07/30/2009 Page 8 of 9
care personnel, all claims raised in grievance were exhausted against all defendants involved in the allege denial of treatment); Heggie v. Michigan Dep’t of Corrections, 2009 WL 36612, at *3*4 (W.D. Mich. Jan. 5, 2009) (where defendants did not even claim that the MDOC relied on the plaintiff’s failure to name individual doctors in denying grievance, procedural default did not apply and dismissal for failure to exhaust inappropriate).4
Accordingly, I suggest that Defendants’ motion to dismiss for failure to exhaust administrative remedies should be denied. III. REVIEW
The parties to this action may object to and seek review of this Report and Recommendation within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); Howard v. Sec’y of Health & Human Servs., 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). The parties are advised that making some objections, but failing to raise others, will not preserve all the objections a party may have to this Report and Recommendation. Willis v. Sec’y of Health & Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge.

Dated: July 30, 2009

s/ Charles` E Binder
CHARLES E. BINDER United States Magistrate Judge

4The opinion also discussed the conflicting district court decisions on this topic but noted that no published Sixth Circuit or U.S. Supreme Court decision runs contrary to its holding.
8

Case 2:07-cv-14644-ADT-CEB Document 94 Filed 07/30/2009 Page 9 of 9

CERTIFICATION
I hereby certify that this Report and Recommendation was electronically filed this date and electronically served on counsel of record via the Court’s ECF System.

Date: July 30, 2009

By s/Patricia T. Morris Law Clerk to Magistrate Judge Binder

9

 
 Case 2:07-cv-14644-ADT-CEB Document 66 Filed 09/12/2008 Page 1 of 12

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

DALLAS COBBS, #164276,

Plaintiff, v
GEORGE PRAMSTALLER, DR. HARESH PANDYA, MARCELLA CLARK, DR. GREGORY NAYLOR, DR. WALTER ORMES, DR. BONITA NEIGHBORS, et al.,

NO. 2:07-cv-14644
HON. ANNA DIGGS TAYLOR MAG. CHARLES E. BINDER

Defendants.

Paul D. Reingold

Ronald W. Chapman (P37603)

Attorney for Plaintiff

Brian J. Richtarcik (P49390)

University of Michigan

CHAPMAN & ASSOC., PC

801 Monroe Street

Attorneys for Dfts CMS & Hutchinson

363 Legal Research Bldg 40950 N. Woodward Ave., Ste. 120

Ann Arbor, MI 48109

Bloomfield Hills, Michigan 48304

734-763-4319

(248) 644-6326

Cori E. Barkman (P61470) Assistant Attorney General Attorney for Dfts Naylor, Pandya Pramstaller, Ormes, Clark & Neighbors Corrections Division P.O. Box 30217 Lansing, MI 48909

MDOC DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Michigan Department of Corrections (MDOC) Defendants Pramstaller, Naylor, Pandya,

Clark, and Neighbors, by counsel, move under Fed R Civ P 56(b) for summary judgment. On

February 26, 2008, Plaintiff Cobbs was approved for cataract extraction on his left eye, rendering

moot his claims for injunctive relief. On April 14, 2008, Cobbs underwent the cataract surgery

of his left eye. MDOC Defendants now ask this Court to grant this motion in their favor and

dismiss them from this suit. This motion is based on Fed R Civ P 56(b) and the other grounds

set forth in the accompanying brief. Concurrence in this motion was sought via email to

Plaintiff’s counsel and was denied.

Respectfully submitted,

Michael A. Cox Attorney General

/s/ Cori E. Barkman (P61470) Assistant Attorney General Attorney for Defendants PO Box 30217 Lansing, MI 48909 BarkmanC@michigan.gov Dated: September 12, 2008
S:\Corrections\Assignment Control\Cases\Open\Barkman\Cobbs 2007025427A ED\Cobbs.SUMMJUDG.motion.brief.rev.doc

Case 2:07-cv-14644-ADT-CEB Document 66 Filed 09/12/2008 Page 2 of 12

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

DALLAS COBBS, #164276,

Plaintiff, v
GEORGE PRAMSTALLER, et al.,

NO. 2:07-cv-14644
HON. ANNA DIGGS TAYLOR MAG. CHARLES E. BINDER

Defendants.

Paul D. Reingold Attorney for Plaintiff University of Michigan 801 Monroe Street 363 Legal Research Bldg Ann Arbor, MI 48109

Cori E. Barkman (P61470) Assistant Attorney General Attorney for MDOC Defendants Corrections Division P.O. Box 30217 Lansing, MI 48909

BRIEF IN SUPPORT OF MDOC DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Dated: September 12, 2008

Michael A. Cox Attorney General
/s/ Cori Barkman Assistant Attorney General Attorney for Defendants PO Box 30217 Lansing, MI 48909 Phone: (517) 335-7021 BarkmanC@michigan.gov (P61470)

Case 2:07-cv-14644-ADT-CEB Document 66 Filed 09/12/2008 Page 3 of 12

CONCISE STATEMENT OF ISSUES PRESENTED

I.

Plaintiff alleges deliberate indifference based on failure to provide him with

cataract surgery in his left eye. He has now received the surgery to remove that

cataract. He has not placed verifying medical evidence into the record showing

a detrimental effect of the delay in treatment. Has plaintiff failed to show an

Eighth Amendment violation?

Defendant's answer: Plaintiff's answer:

Yes unknown

II.

Plaintiff has received a cataract extraction on his left eye. Are his requests for

injunctive relief now moot?

Defendant's answer: Plaintiff's answer:

Yes unknown

III.

Plaintiff has shown only a disagreement over the course of care provided. At

most, he has shown a delay in treatment not resulting in injury. Are

Defendants entitled to qualified immunity?

Defendant's answer: Plaintiff's answer:

Yes unknown

1

Case 2:07-cv-14644-ADT-CEB Document 66 Filed 09/12/2008 Page 4 of 12
STANDARD OF REVIEW A defendant is entitled to judgment as a matter of law, with or without supporting affidavits, in the absence of a genuine issue of material fact.1 Once the moving party discharges his burden of demonstrating the absence of a genuine issue of material fact, the burden then shifts to the nonmoving party, who may not rest on his pleadings but, instead, must present specific facts showing a genuine triable issue.2 The nonmoving party is not entitled to a trial merely on the basis of allegations, but must come forward with some significant probative evidence to support its claim.3 "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff."4 The party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient "simply [to] show that there is some metaphysical doubt as to the material facts."5 Rather, Rule 56(e) "requires the nonmoving party to go beyond the pleadings" and present some type of evidentiary material in support of its position.6 Ultimately, the Court must determine whether the evidence "is so one-sided that one party must prevail as a matter of law."7
1 FRCP 56(b). 2 FRCP 56(e). 3 Celotex Corp v Catrett, 477 US 317 (1986). 4 Anderson v Liberty Lobby, Inc, 477 US 242, 252 (1986). 5 Matsushita Elec Indus Co v Zenith Radio Corp, 475 US 574, 586 (1986). 6 Celotex, 477 US at 324; see also Harris v Gen Motors Corp, 201 F3d 800, 802 (CA 6, 2000). 7 Anderson, 477 US at 251-52; see also Atchley v RK Co, 224 F3d 537, 539 (CA 6, 2000).
2

Case 2:07-cv-14644-ADT-CEB Document 66 Filed 09/12/2008 Page 5 of 12
CONTROLLING OR MOST APPROPRIATE AUTHORITY Prison officials are forbidden from "unnecessarily and wantonly inflicting" pain on an inmate by acting in "deliberate indifference" toward the inmate's serious medical needs.8 A prison official cannot be found liable under the Eighth Amendment unless the official “knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of harm exists, and he must also draw the inference.”9 "[A]n inmate who complains that delay in medical treatment rose to a constitutional violation must place verifying medical evidence in the record to establish the detrimental effect of the delay in medical treatment to succeed."10 Mere disagreement with medical staff's prescriptions does not state a claim for violation of the Eighth Amendment.11 A case is moot when the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome. Mootness results when events occur during the pendency of a litigation that renders the court unable to grant the requested relief.12 The defense of qualified immunity is available to a state actor unless three criteria are met: a constitutional violation has occurred; the violated right was a clearly established right of which a reasonable person would have known; and the plaintiff has alleged sufficient facts, and supported the allegations by sufficient evidence, to indicate that what the official allegedly did was objectively unreasonable.13
8 Estelle v Gamble, 429 US 97, 104 (1976). 9 Farmer v Brennan, 511 US 825, 837 (1994). 10 Napier v Madison County, 238 F3d 739, 742 (CA 6, 2001). 11 Estelle, 429 US at 104-06. 12 Carras v Williams, 807 F2d 1286 (CA 6, 1986). 13 Saucier v Katz, 533 US 194, 201-02 (2001); Higgason v Stephens, 288 F3d 868, 876-77 (CA 6, 2002); Williams v Mehra, 186 F3d 685, 690 (CA 6, 1999).
3

Case 2:07-cv-14644-ADT-CEB Document 66 Filed 09/12/2008 Page 6 of 12
STATEMENT OF THE FACTS
Plaintiff Dallas Cobbs #164276 is an inmate confined at the Ryan Road Correctional
Facility (RRF) within the Michigan Department of Corrections (MDOC). He alleges that his
Eighth Amendment rights were violated when he was denied cataract surgery in his left eye.
Undersigned counsel represents Defendants Pramstaller, Clark, Naylor, Ormes, Neighbors, and Pandya.14
In August 2004, the plaintiff had cataract surgery on his right eye. [Amended Complaint,
¶ 21]. He claims that his doctor had also recommended surgery on his left eye. [Amended
Complaint, ¶ 22]. He also alleges that his request for surgery was denied by the Medical
Services Advisory Committee (MSAC) on October 26, 2004. [Amended Complaint, ¶ 24]. He
was told that the surgery was denied by CMS. [Amended Complaint, ¶ 26].
On February 26, 2008, the MSAC held a meeting; at that meeting, the plaintiff's cataract
was one of the agenda items. Due to the continuing development of the cataract, the MSAC
recommended approval of cataract surgery for the plaintiff's left eye. An outside consultation
request was created on March 10, 2008, approving the plaintiff for "cataract extraction left eye
with Dr. Dastgir," as well as two post-operation follow-up examinations with Dr. Dastgir. The plaintiff underwent an A & B scan of his left eye on April 7, 2008.15 Dr. Dastgir performed the
14 Plaintiff's counsel has agreed to dismiss Defendant Ormes from this action. 15 According to en.wikipedia.org, the purpose of the A-scan is to determine eye length for calculation of intraocular lens power. Briefly, the total refractive power of the emmetropic eye is approximately 60. Of this power, the cornea provides roughly 40 diopters, and the crystalline lens 20 diopters. When a cataract is removed, the lens is replaced by an artificial lens implant. By measuring both the length of the eye (A-scan) and the power of the cornea (keratometry), a simple formula can be used to calculate the best fit of intraocular lens. There are several different formulas that can be used depending on the actual characteristics of the eye. The other major use of the A-scan is to determine the size and ultrasound characteristics of masses in the eye, in order to determine the type of mass. This is often termed quantitative A-scan. A B-scan provides a clinical assessment of a variety of ocular and orbital diseases. With understanding of the indications for ultrasound and proper examination technique, one can gather a vast amount of information not possible with clinical examination alone.
4

Case 2:07-cv-14644-ADT-CEB Document 66 Filed 09/12/2008 Page 7 of 12
plaintiff’s cataract surgery on April 14, 2008. Since the surgery, Plaintiff has had at least three
follow up appointments with Dr. Dastgir, one on April 15, 2008, one on April 22, 2008, and the next on April 29, 2008.16
ARGUMENT
I. The plaintiff cannot show that cataract surgery was medically necessary prior to the recent approval of the surgery by the MSAC. In addition, he cannot show that he has been harmed by the delay in receiving the surgery.
Prison officials are forbidden from "unnecessarily and wantonly inflicting" pain on an inmate by acting in "deliberate indifference" toward the inmate's serious medical needs.17 Mere
disagreement with medical staff's prescriptions, however, does not state a claim for violation of constitutional rights.18
Deliberate indifference "entails something more than mere negligence" or gross negligence.19 A prison official cannot be found liable under the Eighth Amendment unless the
official “knows of and disregards an excessive risk to inmate health or safety; the official must
both be aware of facts from which the inference could be drawn that a substantial risk of harm exists, and he must also draw the inference.”20
To reach the level of a constitutional violation, a deprivation "must result in the denial of 'the minimal civilized measure of life's necessities.'"21 The Eighth Amendment is only
concerned with "deprivations of essential food, medical care, or sanitation" or "other conditions intolerable for prison confinement."22 "[N]ot every unpleasant experience a prisoner might
16 Def Ex A, “Affidavit of Elizabeth Tate”. 17 Estelle v Gamble, 429 US 97, 104 (1976). 18 Estelle, 429 US at 104-06. 19 Farmer v Brennan, 511 US 825, 835 (1994); Walker v Norris, 917 F2d 1449, 1454 (CA 6, 1990); McGhee v Foltz, 852 F2d 876, 880-81 (CA 6, 1988). 20 Farmer, 511 US at 837. 21 Rhodes v Chapman, 452 US 337, 347 (1981); see also Wilson v Yaklich, 148 F3d 596, 600-01 (CA 6, 1998). 22 Rhodes, 452 US at 348.
5

Case 2:07-cv-14644-ADT-CEB Document 66 Filed 09/12/2008 Page 8 of 12
endure while incarcerated constitutes cruel and unusual punishment within the meaning of the Eighth Amendment."23
"[A]n inmate who complains that delay in medical treatment rose to a constitutional violation must place verifying medical evidence in the record to establish the detrimental effect of the delay in medical treatment to succeed."24 "[T]he 'verifying medical evidence' requirement is relevant to those claims involving minor maladies or non-obvious complaints of a serious need for medical care."25
In Napier, the prisoner did not complain about missing treatment; he told the prison guards that missing a treatment was "no big deal"; he missed over forty treatment sessions of his own accord; and he neither sought immediate medical attention upon his release nor even attended his next scheduled treatment.26 The facts in Blackmore differed in that the plaintiff there "did not suffer from a long-term and well monitored illness, but rather exhibited obvious manifestations of pain and injury. [He] complained of 'sharp' and 'severe' stomach pains for an extended period of time."27 The Court held that the plaintiff's "classic signs of appendicitis" made the need for care so obvious that he did not need to submit verifying medical evidence to avoid summary judgment.28
The plaintiff here has shown no more than a disagreement over the prescribed course of care. He had cataract removal performed on his right eye. Based on the results of that surgery, a decision was made that cataract extraction to the left eye was not required. Due to changing
23 Ivey v Wilson, 832 F2d 950, 954 (CA 6, 1987). 24 Blackmore v Kalamazoo County, 390 F3d 890, 898 (CA 6, 2004) [quoting Napier v Madison County, 238 F3d 739, 742 (CA 6, 2001)]. 25 Blackmore, 390 F3d at 898. 26 Napier, 238 F3d at 741. 27 Blackmore, 390 F3d at 899. 28 Blackmore, 390 F3d at 900.
6

Case 2:07-cv-14644-ADT-CEB Document 66 Filed 09/12/2008 Page 9 of 12
circumstances, the plaintiff received approval for cataract extraction on his left eye and the surgery was performed on April 14, 2008.
But even if the plaintiff could show more than disagreement over the course of care prescribed, at most, he can show only a delay in receiving care. And he has placed no verifying medical evidence in the record tending to show that he suffered any injury as a result of the delay in cataract extraction. Although the plaintiff claims to have suffered diminished vision in his right eye due to the delay, it is unclear that a cataract could be the cause of such a condition or that it was the cause of such condition in the plaintiff. In addition, there is no way of knowing whether that condition would revert to normal after successful removal of the left-eye cataract. The defendants are entitled to summary judgment.
A. The plaintiff's requests for injunctive relief are moot. Article III of the United States Constitution limits federal court jurisdiction to a 'case or controversy'; this provides the basis for principles of mootness.29 "If a case becomes moot, it does not satisfy the 'case or controversy' requirement of Article III, and the federal courts are powerless to decide it."30 As explained by the United States Court of Appeals for the Sixth Circuit, "[a] case is moot when the issues presented are no longer 'live,' or the parties lack a legally cognizable interest in the outcome."31 The plaintiff has been approved for and has received cataract extraction to his left eye. Further, the plaintiff has received post surgical care following his cataract surgery.32 To the extent that the plaintiff is requesting injunctive relief in the form of follow-up medical care, his request is moot.
29 US Const art III, § 2. 30 Carras v Williams, 807 F2d 1286, 1289 (CA 6, 1989) [citing SEC v Medical Committee for Human Rights, 404 US 403, 407 (1972) and United States v City of Detroit, 720 F2d 443, 448 (CA 6, 1983)]. 31 Carras v Williams, 807 F2d at 1289 [quoting Powell v McCormack, 395 US 486, 496 (1969)]. 32 Def Ex A.
7

Case 2:07-cv-14644-ADT-CEB Document 66 Filed 09/12/2008 Page 10 of 12
B. Defendant Pramstaller, Clark, Naylor, Neighbors, and Pandya are entitled to qualified immunity.
Officials or employees of the Michigan Department of Corrections who are sued in their
individual capacities "are shielded 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."33
In Saucier v Katz, the Supreme Court set forth a two-prong test to determine whether a defendant is entitled to qualified immunity.34 First, a court must consider whether the facts of
the case, viewed in the light most favorable to the plaintiff, "show the officer's conduct violated a constitutional right." 35 If so, the court must then decide "whether the right was clearly established."36 "The relevant, dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation that he confronted."37
The Court also reiterated that a ruling on qualified immunity "should be made early in the proceedings so that the costs and expenses of trial are avoided where the defense is dispositive"38
Qualified immunity is "an entitlement not to stand trial or face the other burdens of litigation" and is "an immunity from suit rather than a mere defense to liability."39 A court's first inquiry,
taken in the light most favorable to the party claiming the injury, is whether the facts alleged show the officer's conduct violated a constitutional right.40 If a violation could be made out on a
favorable view of the parties' submissions, the next, sequential step "is to ask whether the right
33 Harlow v Fitzgerald, 457 US 800, 818 (1982). 34 Saucier, 533 US 194 (2001). 35 Saucier, 533 US at 201. 36 Saucier, 533 US at 201. 37 Saucier, 533 US at 201. 38 Saucier, 533 US at 200. 39 Saucier, 533 US at 201. 40 Saucier, 533 US at 201.
8

Case 2:07-cv-14644-ADT-CEB Document 66 Filed 09/12/2008 Page 11 of 12
was clearly established" and "this inquiry, it is vital to note, must be undertaken in light of the specific context of the case, not as a broad general proposition."41
In Siegert v Gilley, the United States Supreme Court held that prior to determining whether a right is clearly established and prior to entertaining summary judgment where qualified immunity has been asserted, a court must first determine "whether the plaintiff has asserted a violation of a constitutional right at all."42 As a threshold matter, "[t]he plaintiff must plead facts which, if true, describe a violation of a clearly established statutory or constitutional right of which a reasonable public official, under an objective standard, would have known. The failure to so plead, precludes a plaintiff from proceeding further, even from engaging in discovery."43 The standard to be applied in deciding a claim of qualified immunity is one of objective reasonableness.44 The question of whether qualified immunity attaches to an official's actions is a purely legal issue for the trial court.45
The plaintiff is unable to show anything more than a disagreement over the course of care prescribed to him. Furthermore, he has not demonstrated, through medical evidence, that he suffered any harm as a result of the delay from the time the right eye was operated on until now. The plaintiff's constitutional rights were not violated. Additionally, the defendants have found no case law indicating that delay in providing cataract surgery could amount to deliberate indifference. The plaintiff's clearly established constitutional rights have not been violated, and the defendants are entitled to qualified immunity.
41 Saucier, 533 US at 201. 42 Siegert v Gilley, 500 US 226, 232 (1991). 43 Dominque v Telb, 831 F2d 673, 676 (CA 6, 1987) (citing Mitchell v Forsyth, 472 US 511 (1985)); Gomez v Toledo, 446 US 635 (1980); and Harlow, 457 US at 818. 44 Dickerson v McClellan, 101 F3d 1151, 1157-58 (CA 6, 1996). 45 See Pouillon v City of Owosso, 206 F3d 711, 718 (CA 6, 2000); Summar v Bennett, 157 F3d 1054, 1057 (CA 6, 1998); Dominque v Telb, 831 F2d 673, 677 (1987).
9

Case 2:07-cv-14644-ADT-CEB Document 66 Filed 09/12/2008 Page 12 of 12
CONCLUSION AND RELIEF SOUGHT
The plaintiff cannot show an Eighth Amendment violation because he can show nothing
more than disagreement over the prescribed course of care or, at most, a delay in receiving
treatment. He has not submitted verifying medical evidence to show that a delay in treatment
could have caused him any harm or that he suffered any harm and no Sixth Circuit authority
could be found for the proposition that delay in removing a cataract could equate to deliberate
indifference. The plaintiff's various requests for injunctive relief are moot because he has
received cataract extraction surgery in his left eye and has had follow up care post surgery.
Defendants Pramstaller, Clark, Naylor, Neighbors, and Pandya respectfully request that the
Court grant their Motion for Summary Judgment and dismiss them from this action.
Respectfully submitted,
Michael A. Cox Attorney General
/s/ Cori E. Barkman Assistant Attorney General Attorney for Defendants PO Box 30217 Lansing, MI 48909 Phone: (517) 335-7021 BarkmanC@michigan.gov (P61470) Dated: September 12, 2008
S:\Corrections\Assignment Control\Cases\Open\Schneider\Clifs Federal Litigation Cases\Cobbs 2007025427A ED\Cobbs.SUMMJUDG.motion.brief.rev.doc
PROOF OF SERVICE I hereby certify that on September 12, 2008, the foregoing paper was presented and uploaded to the United States District Court ECF System which will send notification of such filing to the attorneys of record listed herein and I hereby certify that a copy of this same document(s) was mailed by US Postal Service to any involved non-ECF participant.
/s/Cori E. Barkman (P61470) Assistant Attorney General Attorney for Defendants
10

 
 Case 2:07-cv-14644-ADT-CEB Document 75 Filed 10/27/2008 Page 1 of 7

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

DALLAS COBBS, #164276,

Plaintiff, v
GEORGE PRAMSTALLER, DR. HARESH PANDYA, MARCELLA CLARK, DR. GREGORY NAYLOR, AND DR. BONITA NEIGHBORS, et al.,

NO. 2:07-cv-14644
HON. ANNA DIGGS TAYLOR MAG. CHARLES E. BINDER

Defendants.

Paul D. Reingold Attorney for Plaintiff University of Michigan 801 Monroe Street 363 Legal Research Bldg Ann Arbor, MI 48109 734-763-4319
Clifton Schneider (P70582) Attorney for MDOC Defendants Michigan Department of Attorney General Corrections Division P.O. Box 30217 Lansing, MI 48909 (517) 335-7021

Ronald W. Chapman (P37603) Brian J. Richtarcik (P49390) CHAPMAN & ASSOC., PC Attorneys for Dfts CMS & Hutchinson 40950 N. Woodward Ave., Ste. 120 Bloomfield Hills, Michigan 48304 (248) 644-6326
Mark V. Schoen (P23576) Assistant Attorney General Michigan Department of Attorney General Attorneys for Public Health Defendants P.O. Box 30736 Lansing, Michigan 48909 (517) 373 -6434

DEFENDANTS PRAMSTALLER, NAYLOR, PANDYA, CLARK, AND NEIGHBORS'S REPLY TO PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT
Michael A. Cox Attorney General
s/ Clifton Schneider_____________ CLIFTON SCHNEIDER (P70582) Assistant Attorney General Corrections Division PO Box 30217 Lansing, MI 48909 Email: schneiderC1@michigan.gov

Case 2:07-cv-14644-ADT-CEB Document 75 Filed 10/27/2008 Page 2 of 7

Date: October 27, 2008

(517) 335-7021 [P70582]

Case 2:07-cv-14644-ADT-CEB Document 75 Filed 10/27/2008 Page 3 of 7

CONCISE STATEMENT OF ISSUES PRESENTED

I.

The plaintiff alleges deliberate indifference based on failure to provide him with

cataract surgery in his left eye. He has now received the surgery to remove that

cataract. He has not placed verifying medical evidence into the record showing a

detrimental effect of the delay in treatment. Has the plaintiff failed to show an

Eighth Amendment violation?

Defendants' answer:

Yes

Plaintiff's answer:

No

II.

The plaintiff has shown only a disagreement over the course of care provided. At

most, he has shown a delay in treatment not resulting in injury. Are the defendants

entitled to qualified immunity?

Defendants' answer:

Yes

Plaintiff's answer:

No

i

Case 2:07-cv-14644-ADT-CEB Document 75 Filed 10/27/2008 Page 4 of 7

STATEMENT OF THE FACTS The plaintiff alleges that his Eighth Amendment rights were violated due to a delay in receiving cataract surgery. Defendants Pramstaller, Naylor, Pandya, Clark, and Neighbors filed a motion for summary judgment on September 12, 2008. [D/E #66]. The plaintiff filed a response on October 16, 2008. [D/E #71]. The defendants now file this reply to the plaintiff's response. Though the plaintiff's response may contain other inaccuracies, at least one error is deserving of address. The plaintiff alleges that his left-eye surgery was not approved until after the "defendants were notified that Mr. Cobbs had retained counsel to represent him." [D/E #71, pages 5-6]. In fact, the plaintiff was approved for cataract surgery on his left eye at the February 26, 2008, MSAC meeting. It was not until March 24, 2008, that a University of Michigan law student contacted counsel for the MDOC defendants and indicated that the Law Clinic would be representing the plaintiff here. Prior to that date, defense counsel was contacted by a student from the Law Clinic expressing an interest in the case, but it was made clear that no plans existed at that time to represent the plaintiff in this case.
ARGUMENT

I.

The plaintiff's Eighth Amendment rights were not violated because he was not

injured by a delay in cataract removal, because disagreement over the course of

care prescribed does not show a constitutional violation, and because he did not

have a serious medical condition requiring treatment during the timeframe at issue

in this suit.

In his response, the plaintiff relies on an affidavit1 from a medical doctor for the

proposition that had he been outside of prison, he would have had cataract surgery on his left eye

back in 2004. [D/E #71, pages 8-9]. Despite the questionable nature of this assertion, even if

1

Case 2:07-cv-14644-ADT-CEB Document 75 Filed 10/27/2008 Page 5 of 7

accepted, the level of care available to free persons is not the standard for measuring the level of care constitutionally required to be provided to prisoners. As discussed in the defendants' motion (D/E #66), deliberate indifference is the standard by which the defendants' conduct must be measured here. The defendants were not constitutionally required to act in accordance with a schedule set by the plaintiff; rather, they were entitled to rely on their medical judgment to determine that the plaintiff did not suffer from any serious medical need requiring treatment during the timeframe in question in this suit. The plaintiff had good vision in his right eye, and there was no medical urgency requiring immediate surgery in the left eye. The plaintiff was not denied treatment; he was provided with a course of care that included operating on one eye and not the other. The plaintiff has since been provided with the second surgery, and he cannot show that he was injured by the delay. The defendants are entitled to summary judgment because the plaintiff cannot show that the objective and subjective prongs of deliberate indifference are met in this case.

II.

The defendants are entitled to qualified immunity.

As discussed above, the plaintiff has not shown that he's suffered a constitutional

violation. As the plaintiff has failed at the first prong of the qualified-immunity analysis, the

defendants are entitled to qualified immunity. Furthermore, the other prongs are also in favor of

the defendants.

The qualified immunity "inquiry, it is vital to note, must be undertaken in light of the specific context of the case, not as a broad general proposition.”2 As argued in their motion (D/E

#66), the defendants have found no case holding that a delay in care similar to that here is a

1 The plaintiff has provided only an unsigned, un-notarized copy of the affidavit with his response; a footnote indicates that a signed copy is on file, but it does not indicate why a copy of that document could not be filed with the response. 2 Saucier v Katz, 533 US 194, 201 (2001).
2

Case 2:07-cv-14644-ADT-CEB Document 75 Filed 10/27/2008 Page 6 of 7

violation of a prisoner's constitutional rights; and the timeframe between the right-eye surgery and the left-eye surgery can only be called a "delay" if it is accepted that the plaintiff had a serious medical need requiring attention during the timeframe relevant to this suit. But the plaintiff had vision in his right eye, and he has not suffered any injury from the "delay"; it is apparent that he did not have a serious medical need for surgery on his left eye at any time relevant to this lawsuit. There is no clearly established law informing the defendants that their conduct was unconstitutional; therefore, the defendants are entitled to qualified immunity.
CONCLUSION AND RELIEF SOUGHT Defendants Pramstaller, Naylor, Pandya, Clark, and Neighbors respectfully request that the Court grant their motion for summary judgment (D/E #66).
Respectfully submitted, Michael A. Cox Attorney General

Date: October 27, 2008

s/ Clifton Schneider_____________ CLIFTON SCHNEIDER (P70582) Assistant Attorney General Corrections Division PO Box 30217 Lansing, MI 48909 Email: schneiderC1@michigan.gov (517) 335-7021 [P70582]

CERTIFICATE OF SERVICE I certify that on May 27, 2008, I electronically filed DEFENDANTS PRAMSTALLER, NAYLOR, PANDYA, CLARK, AND NEIGHBORS'S REPLY TO PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT and CERTIFICATE OF SERVICE with the Clerk of the Court using the ECF system.
s/ Clifton Schneider _____________
3

Case 2:07-cv-14644-ADT-CEB Document 75 Filed 10/27/2008 Page 7 of 7 CLIFTON SCHNEIDER (P70582) Assistant Attorney General Corrections Division PO Box 30217 Lansing, MI 48909 Email: schneiderC1@michigan.gov
(517) 335-7021
4

 
 Case 2:07-cv-14644-ADT-CEB Document 97 Filed 09/30/2009 Page 1 of 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DALLAS COBBS, Plaintiff,
v.

Case No. 07-14644 Hon. Anna Diggs Taylor Magistrate Judge Charles Binder

GEORGE PRAMSTALLER, et al., Defendants.
______________________________________/

ORDER ACCEPTING MAGISTRATE’S REPORT AND RECOMMENDATION (Docket Entry 94)

This matter is before the Court on Magistrate Judge Charles Binder’s Report and Recommendation of July 30, 2009, denying Defendant Hutchinson’s and Mathai’s Motion to Dismiss (Doc. 86).

The Court has reviewed the file, the Magistrate Judge’s Report and Recommendation, Defendants’ objections and Plaintiff’s response. The Court finds that the law cited by the Magistrate has been correctly placed and is controlling in this matter.

Therefore, the Court will accept the Magistrate’s Report and Recommendation of July 30, 2009 as the findings and conclusions of this Court.

Accordingly,

IT IS HEREBY ORDERED that Magistrate Judge Binder’s Report and Recommendation of July 30, 2009 is ACCEPTED and ADOPTED.

IT IS SO ORDERED.

DATED: September 30, 2009

s/Anna Diggs Taylor ANNA DIGGS TAYLOR UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing Order was served upon counsel of record via the Court's ECF System to their respective email addresses or First Class U.S. mail disclosed on the Notice of Electronic Filing on September 30, 2009.
s/Johnetta M. Curry-Williams Case Manager

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN ______________________________________

DALLAS COBBS, #164276, Plaintiff,
vs.

File No. 07-CV-14644 Hon. Anna Diggs Taylor Mag. Judge Charles E. Binder

GEORGE J. PRAMSTALLER, et al.,

Defendants. _____________________________________________________________________________

Paul D. Reingold (P27594) Michigan Clinical Law Program Attorneys for Plaintiff 363 Legal Research Building 801 Monroe Street Ann Arbor, MI 48109-1215 (734) 763-4319

Ronald W. Chapman (P37603) Brian J. Richtarcik (P49390) Chapman & Associates, PC Attorneys for CMS Defendants 40950 North Woodward Ave., Ste. 120 Bloomfield Hills, MI 48304 (248) 644-6326

Clifton B. Schneider (P70582)

C. Adam Purnell (P37603)

Michigan Department of Attorney General

James T. Farrel (P35400)

Attorney for MDOC Defendants

Assistant Attorneys General

Corrections Division

Michigan Department of Attorney General

P.O. Box 30217

Attorneys for Public Health Defendants

Lansing, MI 48909

P.O. Box 30736

(517) 335-7021

Lansing, Michigan 48909

(517) 373 -643

______________________________________________________________________________

PLAINTIFF’S BRIEF IN OPPOSITION TO CMS DEFENDANTS’ (HUTCHINSON AND MATHAI’S) MOTION TO DISMISS

Dated: June 11, 2009

MICHIGAN CLINICAL LAW PROGRAM By: Paul D. Reingold pdr@umich.edu – (P27594)
Edward Schexnayder Student Attorney on the Brief

Table of Contents Page
Statement of Issues Presented ....................................................................................................... ii Table of Authorities ...................................................................................................................... iii The Legal Standard ....................................................................................................................... iv Statement of Facts......................................................................................................................... 1 ARGUMENT ................................................................................................................................ 2
I. Mr. Cobbs Exhausted His Remedies under the PLRA ..................................................... 2 A. MDOC Policy Does Not Require an Inmate to Name in a Grievance Every Individual Whom He Later Sues ...................................................................... 2 B. Mr. Cobbs Exhausted His Administrative Remedies by Naming the MSAC and CMS in His Grievances ..................................................................... 4 C. Mr. Cobbs Complied with the Policy Directive Because the MDOC Considered His Grievances on the Merits .................................................................. 5
II. The Court Should Deny the Motion Because It Is Improper under Rule 12(b)(6) ........... 5 Conclusion .................................................................................................................................... 6 Index of Exhibits........................................................................................................................... 7 Proof of Service ............................................................................................................................ 7
i

Statement of Issues Presented 1. Should the Court deny the CMS defendants‟ motion to dismiss where Mr. Cobbs exhausted
all grievances that were available to him, and where he did not and could not know who had made the decision to deny his medical care? Mr. Cobbs says yes. 2. Should the Court deny the CMS defendants‟ motion to dismiss because it is improperly brought under Rule 12(b)(6)? Mr. Cobbs says yes.
ii

Table of Authorities

Cases

Page

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ......................................................................... iv

Booth v. Churner, 532 U.S. 731 (2001) ........................................................................................ iv

Brown v. Sikes, 212 F.3d 1205 (11th Cir. 2000)........................................................................ 2, 4

Brown v. Toombs, 139 F.3d 1102 (6th Cir. 1998) ........................................................................ 6

Erickson v. Pardus, 551 U.S. 89 (2007) ....................................................................................... iv

Gunasekera v. Irwin, 551 F.3d 461 (6th Cir. 2009)...................................................................... iv

Grear v. Gelabert, No. 1:07-CV-203, 2008 U.S. Dist. LEXIS 11669 (W.D. Mich. Feb. 15, 2008).......................................................................................................... 5

Jones v. Bock, 549 U.S. 199 (2007) .................................................................................. iv, 2, 3, 6

Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004) .................................................................... 4, 5

Kramer v. Wilkinson, 226 Fed. Appx. 461 (6th Cir. 2007) .......................................................... 6

Porter v. Nussle, 534 U.S. 516 (2002) .......................................................................................... iv

Riccardo v. Rausch, 359 F.3d 510 (7th Cir. 2004) ....................................................................... 5

Sanders v. Bachus, No. 1:07-cv-360, 2008 U.S. Dist. LEXIS 106061 (W.D. Mich. Dec. 10, 2008). ........................................................................................................ 3

Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291 (6th Cir. 2008) ...................................... iv

Sullivan v. Kasajaru, No. 07-2220, 2009 U.S. App. LEXIS 5362 (6th Cir. March 13, 2009) .............................................................. 5

Spruill v. Gillis, 372 F.3d 218 (3rd Cir. 2004)........................................................................... 3, 4

Woodford v. Ngo, 548 U.S. 81 (2006) ...................................................................................iv, 2, 4

iii

The Legal Standard 1. Exhaustion under the Prison Litigation Reform Act (PLRA)
The PLRA says that to challenge the conditions of his confinement, a prisoner must first exhaust “such administrative remedies as are available.” 42 U.S.C. § 1997e(a). The exhaustion requirement applies regardless of the remedy the prisoner seeks or the type of claim filed. Booth v. Churner, 532 U.S. 731, 741 (2001); Porter v. Nussle, 534 U.S. 516, 532 (2002). While the PLRA requires exhaustion, it does not impose a duty on a prisoner to name in his original grievance every individual whom he later sues. Woodford v. Ngo, 548 U.S. 81, 93 (2006); Jones v. Bock, 549 U.S. 199, 218 (2007). If a prisoner‟s grievance conforms to the degree of specificity required by the prison grievance policy, then the prisoner has complied with the exhaustion requirement. Jones, 549 U.S. at 218. 2. Dismissal under Rule 12(b)(6)
In reviewing a Rule 12(b)(6) motion to dismiss, a court must “accept all ... factual allegations as true and construe the complaint in the light most favorable to the plaintiff.” Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009). Additionally, a court must accept all wellpleaded factual assertions. Id.
Under Rule 8(a)(2), a plaintiff‟s initial pleading need only contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Rule 8(a)(2)‟s pleading standard is liberal, so that “specific facts are not necessary; the statement need only give the defendant fair notice of what the claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007). A complaint can survive a 12(b)(6) motion without detailed factual allegations. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291 (6th Cir. 2008).
iv

Statement of Facts Plaintiff Dallas Cobbs is a prisoner in the custody of the Michigan Department of Corrections. On June 22, 2004, the Medical Services Advisory Council (MSAC) approved him for cataract surgery. Mr. Cobbs had cataracts in both eyes which were impairing his ability to see. Dr. Dastgir removed the cataract on Mr. Cobb‟s right eye on August 30, 2004. The following day, Dr. Dastgir told Mr. Cobbs that his left eye surgery would be scheduled shortly. After two months of delay, the defendants denied the request for the second surgery. Upon learning of the denial, Mr. Cobbs filed a grievance on December 9, 2004. At that time he did not and could not know who had made the decision to deny the second surgery. Not until his grievance was denied at Step II (on January 28, 2005) was he told that the MSAC had denied the surgery. In his Step III appeal, Mr. Cobbs named the MSAC as one party responsible for denying his eye surgery. His Step III appeal was rejected. See Exh. 1, Cobbs Grievances, at 3 and 5. As Mr. Cobbs‟s vision in his left eye worsened, he requested glasses, but an optometry exam revealed that glasses would be useless until he had surgery. Unable to obtain glasses or surgery, and functionally blind in his left eye despite repeated requests for surgery by his doctors, Mr. Cobbs filed another grievance on October 29, 2006, naming both the MSAC and “any party responsible” for denying his surgery. Id. at 7. In his Step II appeal, he complained that both the MSAC and Correctional Medical Services (CMS) had denied him medical care. Id. at 8. His timely appeal to Step III was again denied. Id. at 10-11. On October 30, 2007, Mr. Cobbs filed his pro se complaint for violations of his Eighth Amendment Rights. His complaint named as defendants the MDOC‟s chief medical officer, Dr. George Pramstaller, and three John Doe defendants, because Mr. Cobbs still did not know who had denied the second cataract surgery. See R. 1, Complaint.
1

ARGUMENT I. Mr. Cobbs Exhausted his Remedies under the PLRA
The Court should deny the motion to dismiss because Mr. Cobbs fully exhausted his administrative remedies prior to filing his lawsuit.
A. MDOC Policy Does Not Require an Inmate to Name in a Grievance Every Individual Whom He Later Sues The PLRA does not have a “naming” requirement for a plaintiff‟s administrative griev-
ances. Jones v. Bock, 549 U.S. at 217. Instead, courts determine exhaustion by considering whether or not the plaintiff complied with the prison‟s grievance system. Id. at 218. Consequently, “the level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim.” Id.
Moreover, regardless of a prison‟s grievance system, the PLRA does not mandate that a prisoner name individuals who are unknown to him. The PLRA only requires a prisoner to exhaust administrative remedies that are “available” to him. Brown v. Sikes, 212 F.3d 1205, 1207 (11th Cir. 2000). Though a prisoner must give prison officials all relevant information he may have, any “grievance procedure that requires a prisoner to provide information he does not have and cannot reasonably obtain is not a remedy that is „available‟ to the prisoner.” Id. at 1207-08.
Exhaustion of remedies within a prison‟s grievance system must be enforced in a manner that complies with the underlying policy of exhaustion. The U.S. Supreme Court has identified two primary policies for § 1997e(a)‟s exhaustion requirement: (1) “exhaustion gives an agency an opportunity to correct its own mistakes ... before it is haled into federal court;” and (2) exhaustion furthers efficiency, because claims “can be resolved much more quickly and economically in proceedings before an agency than in litigation in a federal court.” Woodford, 548 U.S. at
2

89.1 Courts have held that a prison‟s grievance system cannot be applied in a manner that conflicts with these underlying policies of exhaustion. Spruill v. Gillis, 372 F.3d 218, 232 (3rd Cir. 2004); Sanders v. Bachus, 2008 U.S. Dist. LEXIS 106061, at *9 (W.D. Mich. Dec. 10, 2008).
MDOC Policy Directive 03.02.130 does not impose a requirement that a prisoner name in his grievance every person whom he later sues. To the contrary, the Policy Directive instructs that a grievance “shall be stated briefly” and that the “information provided shall be limited to the facts involving the issue being grieved.... Dates, times, places and names of all those involved in the issue being grieved are to be included.” See Policy Directive 03.02.130, ¶ T, attached as Exhibit 2 (emphasis added). The purpose of the Directive is to keep grievances short while including all pertinent information that the prisoner knows. If the Policy Directive were read to require a prisoner to name every individual who might have had a hand in the issue grieved – even if the prisoner does not know – then the grievance process would devolve into a guessing game, with prisoners including endless lists of prison administrators and staff. Such a requirement would contradict the instructions that the grievance be “brief” and “limited to the facts.” Id.
When he filed his two grievances, Mr. Cobbs did not know who had denied his surgery, beyond that it was someone other than his treating physicians, all of whom had recommended it. See Letters Requesting Identification of MSAC and CMS members, attached as Exhibit 3. When he learned that bodies called the MSAC and CMS might be responsible, he duly included them in his grievances. See Exh. 1, at 3, 7, 8, 10. Even when Mr. Cobbs filed his lawsuit, he still did not know who had made the decision to deny his surgery, which is why he included John Doe defendants. Even after he filed his lawsuit, the defendants resisted Mr. Cobbs‟s efforts to discover who had made the decision. See R. 11, Motion to Stay Discovery. Not until Mr. Cobbs 1 Notifying individuals whom a plaintiff may sue is only a minor interest of exhaustion. See Jones, 549 U.S. at 219.
3

had retained counsel did the defendants finally identify who had served on the MSAC. See Request for Identification of John Doe Defendants, and Response, attached as Exhibit 4. Because Mr. Cobbs had no information during the grievance process about who had denied the surgery, naming the current CMS defendants was not a remedy “available” to him under the PLRA. See Sikes, 212 F.3d at 1207-08.
Finally, requiring Mr. Cobbs to file new grievances now against the CMS defendants would serve no purpose and would undermine administrative and judicial efficiency. The defendants had ample notice that Mr. Cobbs was grieving the denial of his second cataract surgery and that the MDOC, MSAC, and CMS decision-makers were responsible for the denial. To require Mr. Cobbs to start over because he did not name unknown decision-makers in his grievances would only waste time without possibly changing the result. The Court should reject the defendants‟ interpretation of the Policy Directive because it would undercut the PLRA‟s policies to promote efficiency and agency self-correction. Woodford, 548 U.S. at 89; Spruill v. Gillis, 372 F.3d 218, 232 (3rd Cir. 2004).
B. Mr. Cobbs Exhausted His Administrative Remedies by Naming the MSAC and CMS in His Grievances Even if a plaintiff must identify the parties involved in a grievance to comply with a
prison‟s grievance requirements, the plaintiff can do so by identifying those parties generally. “A grievance can sufficiently identify a person even if it does not provide an actual name; functional descriptions and the like ... suffice.” Johnson v. Johnson, 385 F.3d 503, 523 (5th Cir. 2004). The Johnson court held that naming a committee in a grievance was sufficient to provide notice to prison administrators that members of the committee were connected to the prisoner‟s problem. Id. The court also differentiated between a grievance claiming improper behavior of a specific known guard and a grievance based on an ongoing problem in the prison for which the
4

responsible party is not immediately obvious. Id. at 517. In the latter case, a prisoner could exhaust his remedies through a general description of the problem or committee. Id.
Mr. Cobbs properly identified the officials responsible for denying his claim by naming “any party responsible” and identifying both the MSAC and CMS in his grievances. The prison plainly had sufficient information to review Mr. Cobbs‟ claims. Unlike Mr. Cobbs, the prison officials would have known or could have easily ascertained who denied his health care requests. Thus, Mr. Cobbs followed MDOC procedures by naming the MSAC and CMS. Id. at 523.2
C. Mr. Cobbs Complied with the Policy Directive Because the MDOC Considered His Grievances on the Merits The prison responded to Mr. Cobbs‟ grievances and appeals on the merits without re-
questing additional names. Where a prison considers and rejects an inmate‟s grievances on the merits, the defendants cannot later contend that the plaintiff failed to exhaust his administrative remedies. “If the state wishes to reject a grievance for failure to properly comply with available administrative procedures then it should do so.” Grear v. Gelabert, 2008 U.S. Dist. LEXIS 11669, *4 (W.D. Mich. Feb. 15, 2008), attached as Exhibit 5. “When a state resolves a grievance on its merits „the federal judiciary will not second-guess that action, for the grievance has served its function of alerting the state and inviting corrective action.‟” Id. (quoting Ricardo v. Rausch, 359 F.3d 510, 13 (7th Cir. 2004)); see also Johnson, 385 F.3d at 520 (PLRA was satisfied where prison officials responded to a grievance even though it was untimely filed). Here, prison officials did not reject Mr. Cobbs‟ grievances for not naming the defendants, but instead, considered both grievances on their merits.
2 The CMS defendants cite only one case for the proposition that a Michigan prisoner must name a defendant specifically before suing. See Sullivan v. Kasajaru, 2009 U.S. App. LEXIS 5362 (6th Cir. March 13, 2009). Sullivan is an unpublished, three-paragraph opinion with no precedential value. Moreover, the prisoner-plaintiff was in pro per in the district court and in the Sixth Circuit, and from the bare facts described it appears that there is no reason why the plaintiff would not have been able to identify his treating doctor and name him in the grievance.
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II. The Court Should Deny the Motion Because It Is Improper under Rule 12(b)(6) Under the PLRA, a prisoner-plaintiff need not plead exhaustion. See Jones, 549 U.S. at
216. A defense motion to dismiss under Rule 12(b)(6) will succeed only if it shows that the plaintiff has not sufficiently pled the elements of his claim. In Jones, the U.S. Supreme Court held that failure to exhaust is an affirmative defense. Id. at 216. The Court reaffirmed that a plaintiff need provide only “a short and plain statement of the claim” for which he seeks relief. Id. at 212. Jones overturned Sixth Circuit precedent holding that the PLRA required the plaintiff to plead exhaustion as part of the claim. See e.g., Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir. 1998) (overruled).
The CMS defendants‟ Rule 12(b)(6) motion is therefore improper. Mr. Cobbs pled all elements of deliberate indifference. See R. 38, Amended Complaint, ¶¶ 87-88. The defendants cannot assert that Mr. Cobbs failed to state a claim. Rather they argue that they have an affirmative defense. Jones, 549 U.S. at 216. But exhaustion is an affirmative defense that the defendants must raise and prove separately. Kramer v. Wilkinson, 226 Fed. Appx. 461, 462 (6th Cir. 2007). The defendants can only raise such a defense by motion under Rule 56 (summary judgment), not under Rule 12(b)(6) for failure to state a claim.
CONCLUSION For the above reasons, Mr. Cobbs respectfully requests that the Court deny the CMS defendants (Hutchinson and Mathai‟s) Rule 12(b)(6) motion to dismiss.
Respectfully submitted, s/ Paul D. Reingold Michigan Clinical Law Program Attorneys for Plaintiff 363 Legal Research Building 801 Monroe Street Ann Arbor, MI 48109-1215
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Dated: June 11, 2009

(734) 763-4319 pdr@umich.edu – P27594
Edward Schexnayder Student Attorney for Plaintiff

Exhibit 1: Exhibit 2: Exhibit 3:
Exhibit 4: Exhibit 5:

Index of Exhibits Dallas Cobbs‟ Grievances and Responses MDOC Policy Directive 03.02.130 Dallas Cobbs‟ Letters Requesting Identification of MSAC and CMS Members, and Responses Request for Identification of John Doe Defendants, and Response Grear v. Gelabert (W.D. Mich. Feb. 15, 2008)

Proof of Service
The above brief in opposition to the CMS defendants‟ motion to dismiss was filed using the Court‟s ECF system, which will send same-day e-mail notice to all counsel of record.
s/ Paul D. Reingold pdr@umich.edu -- P27594
Dated: June 11, 2009

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 Case 2:07-cv-14644-ADT-CEB Document 77 Filed 12/05/2008 Page 1 of 16

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DALLAS COBBS,

Plaintiff,

CASE NO. 07-CV-14644

v.
GEORGE J. PRAMSTALLER, CRAIG HUTCHINSON, WILLIAM BORGERDING, MARCELLA CLARK, JAMES DILLON, ROLDERT FISCHRE, KEITH IVENS, GREGORY NAYLOR, BENCY MATHAI, BONITA DAVIS NEIGHBORS, WALTER ORMES, HARESH PANDYA, CHRIS SAMY, individually and in their official capacities, and CORRECTIONAL MEDICAL SERVICES, INC.,

DISTRICT JUDGE ANNA DIGGS TAYLOR MAGISTRATE JUDGE CHARLES BINDER

Defendants. /

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION ON MDOC DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
(Dkt 66)

I. RECOMMENDATION

For the reasons set forth below, IT IS RECOMMENDED that Defendants’ Motion for

Summary Judgment be GRANTED as to Plaintiff’s request for injunctive relief, as this request

is moot, and that in all other respects, the motion be DENIED.

II. REPORT A. Introduction By order of U.S. District Judge Anna Diggs Taylor, this case was referred to the
undersigned Magistrate Judge for general case management on November 7, 2007. (Dkt. 3.) The

Case 2:07-cv-14644-ADT-CEB Document 77 Filed 12/05/2008 Page 2 of 16
pending motion is brought by the “MDOC Defendants,” which collectively refers to the following individual defendants: George J. Pramstaller, Marcella Clark, Gregory Naylor, Davis Neighbors, and Haresh Pandya. (Dkt. 66 at 1.)
Plaintiff filed a response opposing Defendants’ motion (Dkt. 71), and Defendants filed a reply. (Dkt. 75.) After review of the documents, I conclude that these motions are ready for Report and Recommendation without oral argument pursuant to E.D. Mich. LR 7.1(e)(2).
B. Background Plaintiff is an inmate in the custody of the Michigan Department of Corrections (“MDOC”) who was incarcerated at all times relevant to this litigation at the Ryan Correctional Facility in Detroit, Michigan. (Compl., Dkt. 1 at 2, ¶ 9.) The facts are largely undisputed. Plaintiff’s complaint alleges, through assigned counsel, that Plaintiff was diagnosed with cataracts in both eyes in 2004. (Dkt. 1 ¶ 18.) On July 27, 2004, Plaintiff was taken to consult with Dr. Ghulam Dastgir, ophthalmologist, for pre-approval for scans of both eyes prefatory to potential cataract extraction surgery. (Id. ¶ 19.) The eye scans were performed on August 23, 2004. (Id. ¶ 20.) On August 30, 2004, Plaintiff underwent cataract extraction and lens implant surgery of his right eye. (Id. ¶ 21.) Dr. Dastgir intended for Plaintiff to return for his left eye surgery within six weeks of his right eye surgery. (Id. ¶ 22.) On October 7, 2004, Dr. Piper, a physician at the Ryan Correctional Facility, requested that Plaintiff be given the left eye surgery as noted by Dr. Dastgir. (Id. ¶ 23.) On October 26, 2004, the Medical Services Advisory Committee (“MSAC”) denied his request. (Id. ¶ 24.) At that time, the committee decision-makers included Defendants Borgerding, Clark, Fischre, Hutchinson, Naylor, Neighbors, and Pramstaller. (Id.)
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On November 29, 2004, Plaintiff sent a health services request form asking why he had not received cataract surgery for his left eye. (Id. ¶ 25.) Around December 1, 2004, health services issued a response indicating that surgery had not been approved by CMS (“Correctional Medical Services”), the private corporation contracted to provide medical services for inmates. (Id. ¶ 26.) On December 8, 2004, Plaintiff filed a grievance against health services in an attempt to have his left eye surgery scheduled. (Id. ¶ 27.) Plaintiff’s grievances were denied at all levels, relying on the MSAC decision and noting that cataract surgery for his left eye had never been approved. (Id. ¶¶ 28-32.)
On March 17, 2005, Plaintiff sent another health care request form to health services asking to see an optometrist for new glasses since the continued presence of the cataract on his left eye had changed his vision. (Id. ¶ 33.) Plaintiff was examined by an optometrist, Dr. McGraf, on May 10, 2005, but was informed that he could not get new glasses until the cataract surgery was performed. (Id. ¶ 34.) On May 18, 2005, Dr. McGraf submitted another request for cataract evaluation by an ophthalmologist for potential left eye cataract surgery. (Id. ¶ 35.) On May 31, 2005, CMS denied the request, relying on the MSAC decision of October 26, 2004. (Id. ¶ 36.)
On June 8, 2005, Plaintiff sent another health care request form to health services regarding the vision problems he was having due to the remaining cataract in his left eye. (Id. ¶ 37.) On June 24, 2005, Plaintiff filed another grievance about his vision problems and failure to provide cataract surgery. (Id. ¶ 38.) This grievance was denied indicating that surgery was not approved and that Plaintiff should be evaluated in 6-12 months by an optometrist. (Id. ¶ 39.) On November 2, 2005, Plaintiff sent yet another health care request form indicating that his vision was deteriorating and inquiring when he would be sent to an optometrist. (Id. ¶ 40.) A reply dated November 3, 2005, stated that Plaintiff was on the appointment list. (Id. ¶ 41.) Around December
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14, 2005, Dr. McGraf requested that Plaintiff be given cataract surgery because the retina of Plaintiff’s left eye could not examined because the cataract was so thick it blocked the doctor’s view, even with instruments. The doctor also noted that Plaintiff had walked into objects on his left side due to a lack of peripheral vision. (Id. ¶ 42.) On December 27, 2005, CMS denied the request based on MSAC’s 2004 denial. (Id. ¶ 43.) Dr. McGraf responded to the denial, Plaintiff was allowed to see Dr. McGraf, and Dr. McGraf again requested cataract surgery, citing glaucoma as a risk. (Id. ¶¶ 44-45.) CMS denied the request on March 15, 2006. (Id. ¶ 46.) Dr. McGraf continued to make requests and CMS continued to deny them, citing MSAC’s 2004 decision. (Id. ¶¶ 47-48.)
Dr. McGraf appealed the decision himself, indicating that Plaintiff needed cataract surgery or the risk of secondary glaucoma would persist. The appeal was denied by MSAC on April 25, 2006. (Id. ¶¶ 49-50.) At this time, the MSAC consisted of Defendants Clark, Dillon, Ivens, Hutchinson, Mathai, Ormes, Pandya, Pramstaller, and Samy. (Id. ¶ 50.) MSAC’s denial was reaffirmed on May 9, 2006. (Id. ¶ 51.)
Plaintiff continued to send health care request forms indicating that his vision in his left eye had deteriorated to the point that he had lost all vision in the eye. Dr. Piper twice requested that Plaintiff be sent to an ophthalmologist, but these requests continued to be summarily denied. (Id. ¶¶ 52-57.) On August 25, 2006, Dr. Cook examined Plaintiff, requested surgery, and suggested Plaintiff wear a patch over his left eye due to the deterioration in his vision. (Id. ¶ 58.) Further requests by Plaintiff and Drs. Cook, Piper, and McGraf were “auto-denied” and Plaintiff was placed on the “optometry list.” (Id. ¶¶ 59-61, 68, 71-72.) Plaintiff’s grievances were also denied, relying on the MSAC decision of April 2006. (Id. ¶¶ 62-64, 67, 69-70, 73-74.)
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Counsel for Plaintiff states that he agreed to represent Plaintiff and informed defense counsel of his willingness to do so in February 2008. (Dkt. 71 at 11.) On February 26, 2008, the MSAC held a meeting and approved the surgery to remove the cataract on Plaintiff’s left eye. (Dkt. 66 at 6.) Plaintiff underwent cataract surgery on April 14, 2008. Plaintiff has attended several follow-up appointments with Dr. Dastgir since the surgery. (Id. at 6-7.)
Plaintiff’s first amended complaint avers that the actions and omissions described above constituted deliberate indifference to Plaintiff’s serious medical needs in violation of the Eighth Amendment as made enforceable under 42 U.S.C. § 1983. (Id. ¶¶ 87-88.) Plaintiff further asserts that these acts and omissions caused the following damages: “a thick, dense cataract on his left eye that effectively blinded him in that eye and forced him to wear an eye-patch; headaches; vision problems; eye strain; inability to work his previous job as a locksmith; an increased risk of glaucoma and increased risk of complications from surgery when the cataract was finally removed; long-term loss of the use of his left eye; walking into walls and other people for lack of left-side and peripheral vision; loss of depth perception; anxiety; pain and suffering; humiliation and mental and emotional distress.” (Id. ¶ 89.) Plaintiff seeks declaratory, injunctive, and monetary relief. (Id. at 11.)
C. Summary Judgment Standard A motion for summary judgment will be granted under Rule 56(c) of the Federal Rules of Civil Procedure where “there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c). All facts and inferences must be viewed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). The moving party has the initial burden of showing the absence of a genuine issue of material fact as to an
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essential element of the non-movant’s case. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989) (citing Celotex Corp. v Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). In determining whether the moving party has met its considerable burden, a court may consider the plausibility of the moving party’s evidence. Matsushita, 475 U.S. at 587-88. Summary judgment is also proper where the moving party shows that the non-moving party is unable to meet its burden of proof Celotex, 477 U.S. at 326.
In response, the non-moving party cannot rest merely on the pleadings alone. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Instead, the nonmoving party has an obligation to present “significant probative evidence” to show that “there is [more than] some metaphysical doubt as to the material facts.” Moore v. Philip Morris Cos., 8 F.3d 335, 339-40 (6th Cir. 1993). When the nonmoving party fails to adequately respond to a summary judgment motion, a district court is not required to search the record to determine whether genuine issues of material fact exist. Street, 886 F.2d at 1479-80. Instead, the court will rely upon the “facts presented and designated by the moving party.” Guarino v. Brookfield Twp. Trustees, 980 F.2d 399, 404 (6th Cir. 1992). The Sixth Circuit has explicitly instructed that it is “utterly inappropriate for the court to abandon its position of neutrality in favor of a role equivalent to champion for the non-moving party: seeking out facts, developing legal theories, and finding ways to defeat the motion.” Id. at 406.
After examining the evidence designated by the parties, the court then determines “‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.’” Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1310 (6th Cir. 1989) (quoting Anderson, 477 U.S. at 251-52).
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Summary judgment will not be granted “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.
D. Analysis and Conclusions 1. Injunctive Relief Defendants argue that Plaintiff’s request for injunctive relief is moot. (Dkt. 66 at 9.) Since Plaintiff’s request for injunctive relief seeks an order that “defendants [] provide all needed followup ophthalmological care to ensure that Mr. Cobbs’ vision is fully restored” and Plaintiff has been provided with cataract surgery and follow-up care for his left eye, I suggest that Defendants are correct in arguing that Plaintiff’s request for injunctive relief is now moot. Therefore, I recommend that Defendants’ motion be granted on this ground alone. I turn next to the substantive claims made by Defendants. 2. Qualified Immunity Defendants argue in their dispositive motion that Plaintiff cannot show that the cataract surgery was medically necessary prior to the recent approval of surgery by the MSAC and he cannot show that he was harmed by the delay. (Dkt. 66 at 7-9.) Defendants’ also contend that their actions are shielded by the doctrine of qualified immunity. (Dkt. 66 at 10-11.) These arguments are intertwined. The Supreme Court has explained that, pursuant to the defense of qualified immunity,“government officials performing discretionary functions generally are shielded 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, 73 L. Ed. 2d 396 (1982). The rationale underlying the doctrine is that “an official could not reasonably be expected to anticipate subsequent legal developments, nor
7

Case 2:07-cv-14644-ADT-CEB Document 77 Filed 12/05/2008 Page 8 of 16
could he fairly be said to ‘know’ that the law forbade conduct not previously identified as
unlawful.” Id. Qualified immunity further recognizes that “[i]t is sometimes difficult for an officer
to determine how the relevant legal doctrine will apply to the factual situation he confronts. ‘If the
officer’s mistake as to what the law requires is reasonable, . . . the officer is entitled to the
immunity defense.’” Greene v. Barber, 310 F.3d 889, 894 (6th Cir. 2002) (quoting Saucier v.
Katz, 533 U.S. 194, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001)).
The defense of qualified immunity “can be raised at various stages of the litigation
including at the pleading stage in a motion to dismiss, after discovery in a motion for summary
judgment, or as an affirmative defense at trial.” English v. Dyke, 23 F.3d 1086, 1089 (6th Cir.
1994) (citing Kennedy v. City of Cleveland, 797 F.2d 297, 299-300 (6th Cir. 1986)). When raised
after discovery, “the defendant is entitled to summary judgment if discovery fails to uncover
evidence sufficient to create a genuine issue as to whether the defendant in fact committed those
acts.” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985).
The Supreme Court has recently clarified the interplay between qualified immunity and
summary judgment:
At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts. As we have emphasized, ‘[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no “genuine issue for trial.”’ ‘[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.’ When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment[.]
Scott v. Harris, ___ U.S. ___, 127 S. Ct. 1769, 1776, 167 L. Ed. 2d 686 (2007).
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According to this recent Supreme Court precedent, courts must weave the summary judgment standard into each step of the qualified immunity analysis and must not proceed to step two unless a genuine issue of fact exists under step one. The Sixth Circuit has delineated the following steps to the qualified immunity analysis:
The first inquiry is whether the [p]laintiff has shown a violation of a constitutionally protected right; the second inquiry is whether that right was clearly established at the time such that a reasonable official would have understood that his behavior violated the right; and the third inquiry is ‘whether the plaintiff has alleged sufficient facts, and supported the allegations by sufficient evidence, to indicate that what the official allegedly did was objectively unreasonable in light of clearly established rights.’ Tucker v. City of Richmond, Ky, 388 F.3d 216, 219 (6th Cir. 2005) (quoting Higgason v. Stephens, 288 F.3d 868, 878 (6th Cir. 2002)). The court must only consider the facts known to the defendants at the time the conduct was undertaken. Hale v. Kart, 396 F.3d 721, 728 (6th Cir. 2005). i. Whether a Constitutional Violation Occurred Since “§ 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a method for vindicating federal rights elsewhere conferred,’” I must first address whether an Eighth Amendment violation has occurred. Graham v. Connor, 490 U.S. 386, 393-94, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989)(citation omitted). The Eighth Amendment to the U.S. Constitution protects convicted inmates from the imposition of “cruel and unusual punishments.” U.S. CONST. amend. VIII. In the context of prison medical treatment, the Supreme Court held in Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976), that the deliberate indifference to serious medical needs of prisoners constitutes unnecessary and wanton infliction of pain in violation of this constitutional clause. The Court explained that, “[i]n order to state a cognizable claim, a prisoner must allege acts or omissions
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sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend ‘evolving standards of decency’ in violation of the Eighth Amendment.” Id. at 106. Thus, mere inadequate medical treatment is not sufficient to state a violation of the Eighth Amendment. In Estelle, the Supreme Court explained:
[A]n inadvertent failure to provide adequate medical care cannot be said to constitute an unnecessary and wanton infliction of pain or to be repugnant to the conscience of mankind. Thus, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. Estelle, 429 U.S. at 105-06 (emphasis added) (quotations omitted). Consequently, differences in judgment between an inmate and prison medical personnel regarding the appropriate medical diagnoses or treatment are insufficient to state a deliberate indifference claim. Sanderfer v. Nichols, 62 F.3d 151, 154-55 (6th Cir. 1995). The Sixth Circuit distinguishes “between cases where the complaint alleges a complete denial of medical care and those cases where the claim is that a prisoner received inadequate medical treatment.” Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976). Where, as here, “a prisoner has received some medical attention and the dispute is over the adequacy of the treatment, federal courts are generally reluctant to second guess medical judgments and to constitutionalize claims which sound in state tort law.” Id. See also Jones v. Martin, 5 Fed. Appx. 434 (6th Cir. 2001) (prisoner who received extensive medical attention for a badly decayed tooth but experienced little pain relief failed to state a constitutional claim). A violation of the Eighth Amendment can occur if it “is manifested by prison doctors and their response to prisoner’s needs or by prison guards in intentionally denying or delaying access
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to medical care or intentionally interfering with the treatment once prescribed.” Estelle, 429 U.S. at 104. The inquiry is two-pronged, consisting of both an objective and a subjective element. Wilson v. Seiter, 501 U.S. 294, 298, 111 S. Ct. 2321, 115 L. Ed. 2d 271 (1991). The objective inquiry asks whether the deprivation was sufficiently serious. Caldwell v. Moore, 968 F.2d 595, 602 (6th Cir. 1992). The Caldwell court found that the plaintiff-prisoner “did not suffer a serious deprivation because his injuries were not serious enough to require immediate medical attention.” Id.
A medical need is sufficiently serious if “facts show an obvious need for medical care that laymen would readily discern as requiring prompt medical attention by competent health care providers.” Blackmore v. Kalamazoo County, 390 F.3d 890, 898 (6th Cir. 2005). However, “[t]his ‘obviousness’ standard for determining a serious medical need is distinct from a separate branch of Eighth Amendment decisions where the seriousness of a prisoner’s medical needs ‘may also be decided by the effect of delay in treatment.’” Id. (emphasis in original).
The subjective component asks whether the officials acted with a sufficiently culpable state of mind. Id. The plaintiff must show that the defendant’s conduct demonstrated a level of deliberateness “‘tantamount to an intent to punish.’” See Hicks v. Frey, 992 F.2d 1450, 1455 (6th Cir. 1993) (quoting Molton v. City of Cleveland, 839 F.2d 240, 243 (6th Cir. 1988)). In 1994, the Supreme Court further explained this element “by equating it with criminal recklessness, which requires a subjective showing that the defendant was aware of the risk of harm.” Sanderfer, 62 F.3d at 154 (citing Farmer v. Brennan, 511 U.S. 825, 114 S. Ct. 1970, 1979, 128 L. Ed. 2d 811 (1994)). In Farmer, the Court specified that for a government official to be deliberately indifferent, he “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.” Farmer, 511 U.S.
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at 837. Finally, the government official must have “disregarded that risk.” Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001).
When a plaintiff claims that delay in medical treatment amounted to a violation of the Eighth Amendment, he must “‘place verifying medical evidence in the record to establish the detrimental effect of the delay in medical treatment to succeed.’” Napier v. Madison Co., Ky, 238 F.3d 739, 742 (6th Cir. 2001) (quoting Hill v. Dekalb Regional Youth Detention Center, 40 F.3d 1176, 1188 (11th Cir. 1994)). However, “where a plaintiff’s claims arise from an injury or illness ‘so obvious that even a lay person would easily recognize the necessity for a doctor’s attention,’ the plaintiff need not present verifying medical evidence to show that, even after the delayed necessary treatment, his medical condition worsened or deteriorated.” Blackmore, 390 F.3d at 899-900. A need for medical treatment is also “obvious” even where the “injury” is not if it is a condition of “one who has been diagnosed by a physician as mandating treatment . . . .” Blackmore, 390 F.3d at 897. In these instances, “it is sufficient to show that he actually experienced the need for medical treatment, and that the need was not addressed within a reasonable time frame.” Id. at 900.
I suggest that this case presents a situation where the condition that was known to the Defendants – cataract of the left eye requiring extraction and lens replacement surgery as had been performed on the right eye – is obvious enough that a layperson would recognize the need such that actual harm from the delay does not need to be shown. Blackmore, 390 F.3d at 898. Not only was the condition “obvious,” Defendants were expressly made aware of the need for surgery by the multiple requests made by Plaintiff and Plaintiff’s doctors, and Defendants had already approved similar surgery on Plaintiff’s other eye.
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I further suggest that Defendants did not address this need in a “reasonable time frame.” Id. Plaintiff has alleged, and Defendants have not disputed, that Plaintiff needed cataract extraction and lens replacement surgery on both eyes, that Plaintiff received surgery on the right eye, but that requests from both Plaintiff and several doctors to surgically remove the cataract on the left eye were summarily denied for four years, despite repeated requests from Plaintiff’s doctors and Plaintiff himself. In addition, this refusal to act comes despite warnings that Plaintiff experienced a heightened risk for glaucoma and that Plaintiff’s sight was deteriorating to the point that he was walking into objects. Cf. Campbell v. Fry, No. 89-6578, 1990 WL 15601, at *1 (4th Cir. Feb. 9, 1990) (vacating trial court grant of summary judgment in favor of defendant where approval for cataract surgery was denied “on the basis that it was elective in nature and delay would not cause any deterioration in the underlying condition as the cataracts could be successfully removed at a later date” where a doctor stated that plaintiff’s “vision was deteriorating rapidly”); Goodman v. Cal. Dep’t of Corr. & Rehab., No. 07-01776-CJC (VBK), 2008 WL 4610268, at *7 (C.D. Cal. Oct. 14, 2008) (denying motion to dismiss where plaintiff received some medical care that he claimed was inadequate because defendants “failed to prescribe him any pain medication even though he was in excruciating pain nor did they provide follow-up treatment” for his eye injury); Copenhaver v. Hammer, No. 1:05-CV-675, 2007 WL 2406957, at *4 (W.D. Mich. Aug. 20, 2007) (denying summary judgment where Plaintiff’s heart condition was evidenced by prescription drugs making it so obvious that a lay person would recognize the need for medical attention and because a reasonable jury could find that defendant’s failure to take any action to maintain plaintiff’s prescribed medications was in reckless disregard of a serious medical risk).
Even if this case were governed by the analysis in Napier rather than Blackmore with the result that Plaintiff would need to allege harm due to the delay in treatment, Plaintiff’s allegations,
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I suggest, meet this standard as well. Four years of needless suffering endured by Plaintiff while repeated requests from doctors and from Plaintiff were superficially denied, the documented deterioration of his vision, his walking into objects, and the eventual donning of an eye patch, are the type of unnecessary infliction of pain contemplated by the Supreme Court in Estelle, supra. See also Garretson v. City of Madison Heights, 407 F.3d 789, 794 (6th Cir. 2005) (denying summary judgment where plaintiff had informed police she was insulin-dependent yet they failed to provide her with insulin for a full day, causing her to suffer diabetic ketoacidosis); Koehl v. Dalsheim, 85 F.3d 86, 88 (2nd Cir. 1996) (reversing grant of summary judgment where plaintiff alleged he required prescribed eyeglasses to avoid double vision and loss of depth perception even though “these consequences do not inevitably cause pain, they adequately meet the test of ‘suffering’ that Gamble recognized . . . [because] [s]uch visual deficiencies can readily cause a person to fall or walk into objects, and [plaintiff] alleged that he has experienced such occurrences”); Balisok v. Fleck, No. 93-35485, 1993 WL 5243111, at *2 (9th Cir. Dec. 17, 1993) (vacating trial court’s dismissal where plaintiff alleged that an “eye infection has returned, his vision has deteriorated” and where he alleged that the defendants “provided inadequate medical care and delayed medical treatment”); Hunt v. Dental Department, 865 F.2d 198, 200 (9th Cir. 1989) (denying summary judgment where plaintiff “alleged that the prison officials were aware of his bleeding gums, breaking teeth and his inability to eat properly, yet failed to take any action to relieve his pain or to prescribe a soft food diet until new dentures could be fitted.”).
As I review this evidence, particularly the timing of events, I cannot escape the conclusion that surgery was not approved until counsel came forward indicating that he would be willing to accept the case. This fact buttresses the allegation that the delay amounted to an unnecessary and wanton disregard of a known and serious medical need.
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I also note that Plaintiff seeks damages for “emotional injuries” (Dkt. 66 ¶ 89) and I suggest that Plaintiff has sufficiently pleaded and supported a claim that meets the Prison Litigation Reform Act’s requirement that, to state a claim for emotional injury suffered while in custody, the prisoner must show physical injury. 42 U.S.C. § 1997(e). I suggest that the physical injury alleged here is more than de minimus and is sufficient to survive summary judgment. Adams v. Rockafellow, 66 Fed. App’x 584, 586 (6th Cir. 2003) (citing Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997)).
ii. Whether the Right was Clearly Established I suggest that the Eighth Amendment right to be free from cruel and unusual punishment through deliberate indifference to the serious medical needs of an inmate has been clearly established for many years. See Estelle v. Gamble, 429 U.S. 97, 104-105, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976). Therefore, I suggest that Defendants are not entitled to qualified immunity for the alleged Eighth Amendment violation. 3. Conclusion For the reasons stated above, I suggest that Defendants’ motion for summary judgment be granted as to Plaintiff’s request for injunctive relief only because it is now moot, and that the motion for summary judgment be denied in all other respects.
III. REVIEW The parties to this action may object to and seek review of this Report and Recommendation
within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); Howard v. Sec’y of Health & Human Servs.,
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932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). The parties are advised that making some objections, but failing to raise others, will not preserve all the objections a party may have to this Report and Recommendation. Willis v. Sec’y of Health & Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge.

Dated: December 5, 2008

s/ Charles` E Binder
CHARLES E. BINDER United States Magistrate Judge

CERTIFICATION
I hereby certify that this Report and Recommendation was electronically filed this date, electronically served on Ronald W. Chapman, Paul D. Reingold, Brian J. Richtarcik, Clifton B. Schneider, and Mark V. Schoen, and served on District Judge Taylor in the traditional manner.

Date: December 5, 2008

By s/Patricia T. Morris Law Clerk to Magistrate Judge Binder

16

 
 Case 2:07-cv-14644-ADT-CEB Document 82 Filed 02/12/2009 Page 1 of 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DALLAS COBBS, Plaintiff,
v.

Case No. 07-14644 Hon. Anna Diggs Taylor Magistrate Judge Charles Binder

GEORGE PRAMSTALLER, et al., Defendants.
______________________________________/

ORDER ACCEPTING MAGISTRATE’S REPORT AND RECOMMENDATION

This matter is before the Court on Magistrate Judge Charles Binder’s Report and Recommendation of December 5, 2008, Granting Defendants’ Motion for Summary Judgment as to Plaintiff’s request for injunctive relief only because it is now moot, and that the motion for summary judgment be denied in all other respects.

The Court has reviewed the file, the Magistrate Judge’s Report and Recommendation, Defendants’ objections and Plaintiff’s response. The Court finds that the law cited by the Magistrate has been correctly placed and is controlling in this matter.

Therefore, the Court will accept the Magistrate’s Report and Recommendation of December 5, 2008 as the findings and conclusions of this Court.

Accordingly,

IT IS HEREBY ORDERED that Magistrate Judge Binder’s Report and Recommendation of December 5, 2008 is ACCEPTED and ADOPTED.

IT IS SO ORDERED.

DATED: February 12, 2009

s/Anna Diggs Taylor ANNA DIGGS TAYLOR UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing Order was served upon counsel of record via the Court's ECF System to their respective email addresses or First Class U.S. mail disclosed on the Notice of Electronic Filing on February 12, 2009.
s/Johnetta M. Curry-Williams Case Manager

 
 Case: 10-2089 Document: 006111270174 Filed: 04/10/2012 Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 12a0391n.06
No. 10-2089
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

DALLAS COBBS, Plaintiff-Appellee,
v. GEORGE PRAMSTALLER, Chief Medical Officer, Michigan Department of Corrections,
Defendant-Appellant, and CRAIG HUTCHINSON, Doctor, et al.,
Defendants.

)

FILED

)

Apr 10, 2012

)

)

LEONARD GREEN, Clerk

)

)

) ON APPEAL FROM THE UNITED

) STATES DISTRICT COURT FOR THE

) EASTERN DISTRICT OF MICHIGAN

)

)

)

)

)

)

)

Before: BATCHELDER, Chief Judge; COLE and COOK, Circuit Judges. COOK, Circuit Judge. Defendant-Appellant Dr. George Pramstaller, the Chief Medical Officer of the Michigan Department of Corrections, appeals the district court’s denial of his motion for summary judgment based on qualified immunity. Plaintiff-Appellee Dallas Cobbs brought a civil rights action against Pramstaller under 42 U.S.C. § 1983, alleging that Pramstaller violated his Eighth Amendment rights by delaying cataract-removal surgery on his left eye for four years. We reverse the district court’s decision.
I.

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No. 10-2089 Cobbs v. Pramstaller, et al.
Cobbs is an inmate in the custody of the Michigan Department of Corrections (“MDOC”). In July 2004, doctors diagnosed Cobbs with cataracts in both of his eyes. In August 2004, Dr. Ghulam Dastgir, an ophthalmologist, removed the cataract from Cobbs’s right eye, but prison officials denied corrective surgery for Cobbs’s left eye until February 2008. Between 2004 and 2008, Cobbs met with Dr. Dastgir and several optometrists, all of whom recommended that Cobbs undergo cataract-removal surgery on his left eye. Notwithstanding these recommendations, prison officials, including Pramstaller, withheld approval of the surgery. In November 2007, Cobbs brought this lawsuit seeking declaratory, injunctive, and monetary relief.
During this period, Pramstaller served as Chief Medical Officer of the Michigan Department of Corrections. As Chief Medical Officer, Pramstaller headed the Medical Services Advisory Committee (the “Medical Committee”), a panel of physicians that oversees the authorization of medical procedures for prison inmates. While head of this committee, Pramstaller twice denied Cobbs cataract-removal surgery on his left eye. Cobbs claims that Pramstaller’s denials violated the Eighth Amendment’s prohibition of cruel and unusual punishment. A. The Medical-Claims Review Process
Surgical removal is the only treatment for cataracts. Because prison doctors cannot authorize or perform cataract surgery themselves, doctors seeking surgery for their patients must submit a request for off-site “specialty care.” Doctors submit these requests to a “network provider,” in this case, Correctional Medical Services, Inc. (“CMS”), a private health-management company hired by the State of Michigan to screen requests against approved Michigan Department of Corrections criteria.
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Once a doctor submits a request, CMS will either (1) approve, (2) deny, or (3) “pend” the request. “Pending” a request suspends the decision while CMS awaits supplemental information from the requesting doctor. Only supervising physicians at CMS can deny requests. If CMS denies a request and a doctor disagrees with the denial, he may appeal to the MDOC regional medical officer. The duty of initiating the appeals process belongs to the disagreeing physician. After a doctor appeals, an MDOC regional officer ensures the completeness of the prisoner’s medical file and forwards the case to the chief medical officer—in this case, Pramstaller.
The usual prison-medical-request protocol proceeds as follows: Pramstaller receives the request and medical file, which he presents for a decision at the Medical Committee’s next monthly meeting. In addition to Pramstaller, the Medical Committee includes
four MDOC Regional Medical Directors, [and] a couple of physicians from the Department of Community Health that were psychiatrists. . . . And there was the state-wide CMS Medical Director, the CMS Medical Director for Utilization Review, and . . . an Associate CMS Medical Director.
This team of physicians reviews doctors’ appeals and attempts to reach a consensus on whether to approve the requested treatment. If the committee cannot reach a consensus, Pramstaller holds the ultimate authority to approve requests. After deciding, the committee provides a memorandum explaining its decision to the appealing physician. An invitation to resubmit requests if circumstances change or more information becomes available accompanies each denial. B. Cobbs’s Request for Cataract-Removal Surgery
Cobbs’s request for cataract-removal surgery ran this course twice before CMS approved his surgery in early 2008. The Medical Committee, headed by Pramstaller, denied Cobbs’s request for
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No. 10-2089 Cobbs v. Pramstaller, et al. the surgery in October 2004 and denied a request for an off-site ophthalmology consultation in April 2006. We recount below the repeated requests, denials, and ultimate approval of Cobbs’s cataractremoval surgery in 2008.
In August 2004, Dr. Dastgir, Cobbs’s ophthalmologist, removed a cataract from Cobbs’s right eye and recommended that Cobbs undergo surgery on his left eye to remove another, less severe cataract. A month later, Dr. Piper, a physician at the Ryan Correctional Facility, requested that CMS authorize left-eye surgery for Cobbs, noting Dr. Dastgir’s recommendation. The utilization-review unit at CMS “pended” Dr. Piper’s request and forwarded Cobbs’s claim to the Medical Committee.
A few weeks later, in October 2004, the Medical Committee met and considered Cobbs’s request for surgery. When the Medical Committee reviewed his claim, Cobbs had 20/70 vision without correction in his right eye and 20/70 vision with correction in his left. When exposed to glare, vision in his left eye was much worse—20/400—and Cobbs’s medical records described a “dense posterior sub-capsular cataract.” Prior to his right-eye surgery, Cobbs complained of double vision. After reviewing Cobbs’s record, the Medical Committee denied his request for surgery, noting that the “decision was based on the documentation that was submitted with this request. Should other information become available, the [Medical Committee] will be happy to re-evaluate.”
Both Pramstaller’s and CMS’s denial of the request relied on the medical judgment that, although deteriorated vision in one eye would affect peripheral vision and depth perception, a cataract did not warrant treatment unless it impaired the prisoner’s overall visual acuity. In Pramstaller’s words,
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No. 10-2089 Cobbs v. Pramstaller, et al.
[H]aving monocular vision does not put anybody at a risk for anything. People who have monocular vision are allowed to drive automobiles; the only thing I’m aware of that they cannot do with monocular vision is work as a pilot. Cobbs met with two different optometrists in March and May of 2005. In May 2005, Cobbs met with Dr. Connolly, who noted Cobbs’s left-eye cataract and requested an off-site ophthalmology evaluation as a prerequisite to cataract-removal surgery. CMS denied the request, citing the Medical Committee’s previous denial, and Dr. Connolly did not appeal the decision. In December 2005, Cobbs met with a new optometrist, Dr. McGrath. After examining Cobbs, McGrath also concluded that “cataract surgery [was] needed.” By this time, vision in Cobbs’s left eye deteriorated to 20/600. Notes from McGrath’s December 2005 examination also remark on Cobbs’s “trouble with depth perception” and mention that Cobbs had “walked into objects on his left side.” CMS denied the request, again citing the Medical Committee’s previous denial. McGrath did not appeal the decision to the Medical Committee. In March 2006, Cobbs met with McGrath a second time. Once again, McGrath concluded that Cobbs needed cataract surgery and requested approval for an ophthalmology consultation from CMS, noting that Cobbs suffered from a “dense cataract,” that Cobbs risked developing glaucoma, and that Cobbs had 20/20 vision in his right eye and 20/600 vision in his left eye. Again, CMS denied McGrath’s request, citing the Medical Committee’s previous denial. This time, McGrath appealed his request for an ophthalmology consultation to the Medical Committee. In the form appealing his denied request, McGrath noted that “surgery [was] advised to prevent secondary
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No. 10-2089 Cobbs v. Pramstaller, et al. glaucoma” and that Cobbs “need[ed] cataract surgery—hypermature cataract surgery is more complicated and there is [a] risk of [secondary] glaucoma.”
On April 25, 2006, Pramstaller and the Medical Committee met and deemed an ophthalmology consultation for cataract removal unnecessary. They did, however, respond to McGrath’s concerns regarding glaucoma by issuing a directive to “monitor closely for increase in interocular pressure and resubmit [the request] if pressure increases.” Again, the Medical Committee invited Cobbs’s physician to resubmit his request if Cobbs’s condition changed.
After the April 2006 denial, no doctor appealed another denied request to the Medical Committee. Cobbs’s vision continued to deteriorate, and Cobbs continued to send healthcare request forms describing the worsening condition of his left eye. In July 2006, Dr. Piper, Cobbs’s primary care physician, again requested that Cobbs be sent to an ophthalmologist, but CMS again denied his request. Dr. Piper did not appeal the denial to the Medical Committee.
In August 2006, Dr. Cook, another optometrist, examined Cobbs, requested surgery, and suggested that Cobbs wear a patch over his left eye to offset the effects of his now-monocular vision. Cook marked the request “urgent”; noted that Cobbs had an “opaque/white pupil”; and warned that the hypermaturity of the cataract could “preclude the use of phacoemulsification,” a technique used in cataract-removal surgery. Cobbs saw optometrists again in December 2006 and April 2007, and both optometrists requested cataract surgery for Cobbs. Relying on the Medical Committee’s denial, CMS denied the doctors’ requests. Despite providing grave descriptions of Cobbs’s condition, none of the doctors appealed CMS’ denials to Pramstaller and the Medical Committee. Throughout this
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No. 10-2089 Cobbs v. Pramstaller, et al. period, Cobbs continued to file various health care requests and grievances complaining about his condition, to no avail.
In October 2007, Cobbs filed this lawsuit. Pramstaller unsuccessfully moved for summary judgment on Cobbs’s claims against him, contending that his only involvement with the denial of Cobbs’s medical requests was attendance at the two Medical Committee meetings at which the Medical Committee denied Cobbs’s requests for surgery. Pramstaller, along with other MDOC defendants, have twice more moved for summary judgment, asserting qualified immunity. Each time, the district court has adopted the magistrate judge’s recommendation to reject the defendants’ claims of qualified immunity.
Three months after filing his lawsuit, Cobbs met with another optometrist, the optometrist requested surgery, and CMS approved the request the following week. As Cobbs’s doctor predicted, Cobbs’s cataract-removal required a follow up surgery due to complications caused by the surgery’s delay. Cobbs has since fully recovered his sight; according to the last entry in Cobbs’s medical records, his left-eye vision is now 20/25.
II. A. Standard of Review
We review de novo the denial of qualified immunity in an action brought under 42 U.S.C. § 1983. See Scicluna v. Wells, 345 F.3d 441, 444 (6th Cir. 2003). “[F]or an interlocutory appeal to be appropriate, a defendant seeking qualified immunity must be willing to concede to the facts as alleged by the plaintiff and discuss only the legal issues raised by the case.” Id. (quoting Shehee v.
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No. 10-2089 Cobbs v. Pramstaller, et al. Luttrell, 199 F.3d 295, 299 (6th Cir. 1999)). Thus, we accept all of Cobbs’s allegations as true and view all facts and reasonable inferences in the light most favorable to him. Id. at 444-45. B. Analysis
Pramstaller asserts entitlement to qualified immunity. “Under the doctrine of qualified immunity, ‘government officials performing discretionary functions generally are shielded 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.’” Phillips v. Roane Cnty., Tenn., 534 F.3d 531, 538 (6th Cir. 2008) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Once the defendants raise a qualified immunity defense, “it is the plaintiff’s burden to prove that the state officials are not entitled to qualified immunity.” Ciminillo v. Streicher, 434 F.3d 461, 466 (6th Cir. 2006). We apply a two-step test to qualified immunity claims in deliberate-indifference cases, determining (1) whether, based upon the applicable law, a constitutional violation has occurred; and (2) whether that violation involved a clearly established constitutional right. Phillips, 534 F.3d at 538.
Cobbs contends that Pramstaller acted with deliberate indifference toward his serious medical needs in violation of the Eighth Amendment’s prohibition of cruel and unusual punishment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976). Cobbs must prove two elements to prevail on this claim: First, Cobbs must show that he suffered from a “sufficiently serious” medical need. Farmer v. Brennan, 511 U.S. 825, 834 (1994). Second, Cobbs must show that Pramstaller acted with “a sufficiently culpable state of mind”—specifically, “one of deliberate indifference to inmate health or safety.” Id. (internal quotation marks omitted).
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Case: 10-2089 Document: 006111270174 Filed: 04/10/2012 Page: 9
No. 10-2089 Cobbs v. Pramstaller, et al. 1. Serious Medical Need
A medical need is sufficiently serious if the need is “so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.” Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 897 (6th Cir. 2004) (quoting Gaudreault v. Municipality of Salem, 923 F.2d 203, 208 (1st Cir. 1990). For obvious medical needs left completely untreated, “the delay alone in providing medical care creates a substantial risk of serious harm.” Id. at 899. By contrast, where a “‘deliberate indifference’ claim is based on a prison’s failure to treat a condition adequately” or on “a determination by medical personnel that medical treatment was unnecessary,” a plaintiff must “place verifying medical evidence in the record to establish the detrimental effect of the delay in medical treatment.” Blackmore, 390 F.3d at 897-98 (emphasis added) (citing Napier v. Madison Cnty. Ky., 238 F.3d 739, 742 (6th Cir. 2001)); see also Blosser, 422 F. App’x at 460.
Though Cobbs waited four years for cataract-removal surgery, he met regularly with optometrists and ophthalmologists during this period. Ultimately, Cobbs received cataract-removal surgery in both eyes and he concedes that he has since “fully recovered his sight.” Accordingly, Cobbs cannot claim that prison officials denied him any treatment; rather, Cobbs argues that his doctors should have pursued a more aggressive course of treatment for his left-eye cataract.
Cobbs points to a variety of harms that resulted from the delay in his treatment. Among these, Cobbs claims that the delay caused a more complicated and risky procedure, necessitating a second surgery. Evidence in Cobbs’s medical records supports this claim: Dr. Dastgir, the ophthalmologist who removed Cobbs’s cataract, noted that delaying surgery until a cataract becomes hypermature can complicate surgery. Dastgir pointed out that Cobbs’s post-surgery “wound did not
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No. 10-2089 Cobbs v. Pramstaller, et al. properly heal and leaked, likely because of the length of the surgery to remove his hyper-mature cataract” and noted that the “leaking wound” required “additional sutures during a follow up operation.”
Viewing the facts in the light most favorable to Cobbs, this medical evidence demonstrates a serious medical need. 2. Deliberate Indifference
The question remains whether Pramstaller’s sustained denial of Cobbs’s doctors’ requests for surgery amounted to deliberate indifference. See Farmer, 511 U.S. at 838. To establish subjective culpability, Cobbs must demonstrate that Pramstaller’s conduct evidenced “deliberateness tantamount to an intent to punish.” Hicks v. Frey, 992 F.2d 1450, 1455 (6th Cir. 1993) (quoting Molton v. City of Cleveland, 839 F.2d 240, 243 (6th Cir. 1988)). “[A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the 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.” Farmer, 511 U.S. at 837.
“Because . . . prison officials who lacked knowledge of a risk cannot be said to have inflicted punishment,” id. at 843, the question of what Pramstaller and the Medical Committee knew is paramount. On that score, even viewing the facts in the light most favorable to Cobbs, we cannot charge Pramstaller with knowledge of the entirety of Cobbs’s medical file. At oral argument, Cobbs’s counsel admitted that the entire medical file did not accompany each appeal; rather, the
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No. 10-2089 Cobbs v. Pramstaller, et al. Regional Medical Director furnished the committee with only “the most recent documents” in a prisoner’s medical file. It may be true, as Cobbs argues, that Pramstaller and the Medical Committee should have conducted a more searching review of Cobbs’s medical file. But to hold Pramstaller accountable for portions of the file that he should have reviewed—but did not—would replace the requirement that Pramstaller actually “be aware” of a risk of serious harm with a standard closer to negligence. Id. at 834; see also id. at 835 (“[D]eliberate indifference requires more than mere negligence.”).
The magistrate judge’s report and recommendation, which the district court adopted, misapplied the law by grounding its conclusion about Pramstaller’s subjective culpability on Pramstaller’s failure to assert that he was unaware of Cobbs’s needs. Pramstaller does not bear the burden of demonstrating that he was “unaware”; rather, the “plaintiff bears the onerous burden of proving [an] official’s subjective knowledge.” Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001). Also problematic, the magistrate judge apparently combed the entire medical record for evidence of deliberate indifference without parsing it to determine what Pramstaller actually knew when denying Cobbs’s claims.
We tighten the frame for our review, focusing on what Cobbs shows that Pramstaller actually knew. On this point, the record is murky. Much of the lengthy factual background concern volleys of claims and denials, but Cobbs highlights no evidence of Pramstaller’s involvement in these exchanges. Similarly, Cobbs devotes a large portion of his brief to discussing complaints made in prison healthcare requests, or “kites.” According to undisputed evidence in the record, however, kites did not reach the record that Pramstaller’s Medical Committee reviewed.
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No. 10-2089 Cobbs v. Pramstaller, et al.
Again, when questioned at oral argument about Pramstaller’s knowledge, Cobbs’s counsel speculated that “the only thing [the Medical Committee] ever looked at was the last optometrist’s exam.” Our review of the record likewise does not yield a definitive answer, but we can infer that the Medical Committee relied on the forms that treating physicians used to appeal to the Medical Committee—“CHJ” forms—as well as records of the patient’s most recent optometry examinations. With these principles and conclusions in mind, we turn to Pramstaller’s subjective culpability.
We can winnow Cobbs’s allegations against Pramstaller to three separate acts: (1) Pramstaller’s October 2004 denial of Cobbs’s request for surgery to remove his left-eye cataract; (2) Pramstaller’s April 2006 denial of Cobbs’s request for an ophthalmology consult; and (3) Pramstaller’s November 2007 reaction to the filing of this lawsuit—moving to dismiss instead of authorizing Cobbs’s surgery. We examine Pramstaller’s subjective culpability for each event.
a. October 2004 Denial The Medical Committee first denied Cobbs’s request for left-eye cataract surgery on October 26, 2004. Though the Medical Committee memorandum denying surgery does not detail its reasons for denying Cobbs’s 2004 claim, the record compels the conclusion that the Medical Committee denied surgery because Cobbs enjoyed good overall visual acuity following his right-eye surgery. In general, Pramstaller believed that delaying cataract-removal surgery posed “minimal” risk when a prisoner had good overall vision. Prison officials thus looked to a prisoner’s “overall visual acuity”—their corrected vision using both eyes—when determining whether to grant cataract surgery. At the time, Cobbs’s enjoyed overall vision of 20/70 without correction in his right eye, and 20/70 vision with correction in his left.
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No. 10-2089 Cobbs v. Pramstaller, et al.
Pramstaller identified several conditions warranting surgery despite good overall vision: where a prisoner suffers from a “posterior subcapsular cataract” that “causes glare,” a “discrepancy” in vision, or glaucoma. Cobbs argues that notes from a July 2004 visit with Dr. Dastgir, his ophthalmologist, should have apprised the Medical Committee that he suffered from two of these three conditions—glare and a discrepancy in vision. Cobbs stresses that these notes would have alerted Pramstaller to Cobbs’s need for surgery had Pramstaller reviewed them. But Cobbs offers no evidence that Pramstaller was aware of Dastgir’s notes. At oral argument, when asked whether Cobbs’s appeals to the Medical Committee presented Pramstaller with these notes, Cobbs’s counsel admitted, “We don’t know; they don’t ever tell us what they had.” Further, doctors removed Cobbs’s right-eye cataract after the July examination, and none of Cobbs’s post-surgery examination reports mentions double vision or glare. Drawing every factual inference in Cobbs’s favor, as we must, we conclude that Cobbs fails to demonstrate Pramstaller’s awareness of facts from which he could infer that a substantial risk of serious harm existed in October 2004.
b. April 2006 Denial In April 2006, Pramstaller and the Medical Committee denied Dr. McGrath’s request to schedule Cobbs for a consultation with an ophthalmologist as a prelude to cataract surgery. The record suggests that the Medical Committee denied the ophthalmology consultation after reviewing forms that Dr. McGrath prepared following a March 2006 examination of Cobbs. McGrath’s 2006 request described Cobbs’s deteriorating left eye and the risks of delaying surgery. The request, which McGrath originally submitted to CMS, warned that Cobbs suffered from a “dense cataract” and risked developing glaucoma, and recorded Cobbs’s vision as 20/20 in
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No. 10-2089 Cobbs v. Pramstaller, et al. his right eye and 20/600 in his left eye. After CMS denied McGrath’s request, he appealed to the Medical Committee, noting that “[s]urgery [was] advised to prevent secondary glaucoma. No view of lens/retina possible to check eye health.” McGrath further remarked that Cobbs “need[ed] cataract surgery—hypermature cataract surgery is more complicated.” Finally, McGrath noted that “if [cataract surgery was] denied, monthly [intraocular pressure check] advised.”
Pramstaller and the Medical Committee again found cataract removal unnecessary, but heeded McGrath’s warning about glaucoma and the need to monitor pressure. A directive to “monitor closely for [an] increase in interocular pressure and resubmit if pressure increases” accompanied the Medical Committee’s denial of Cobbs’s cataract-removal surgery. Again, the Medical Committee invited Cobbs’s doctors to resubmit his request if his condition changed.
Cobbs fails to show that this denial was anything other than the product of considered medical judgment. Before denying the claim, Pramstaller met with the Medical Committee, a group of physicians, and the group discussed the necessity of treatment. According to Pramstaller, the Medical Committee and he believed that delaying cataract-removal surgery—in the absence of conditions like glare or double vision—posed “minimal” risk.
Cobbs points out that the difference in acuity between his two eyes—20/20 and 20/600—constituted a “discrepancy” in vision that Pramstaller admits warranted surgery. But a discrepancy in vision is more than a difference in acuity between eyes; rather, a “discrepancy” in vision refers to a difference that “creates a disparity in the visual cortex and makes it difficult for the brain to perceive vision.” The result is double vision, a condition that impairs overall sight.
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Case: 10-2089 Document: 006111270174 Filed: 04/10/2012 Page: 15
No. 10-2089 Cobbs v. Pramstaller, et al.
The eye care that Cobbs actually received further belies the notion that Pramstaller acted with deliberate indifference toward Cobbs’s health. During the relevant time period, Cobbs regularly met with ophthalmologists and optometrists. When a doctor did mention a condition that potentially qualified Cobbs for cataract-removal surgery—such as McGrath’s warning about glaucoma in 2006—the Medical Committee responded by ordering that doctors monitor the condition. Finally, both of the Medical Committee’s denials invited doctors to resubmit requests if additional facts came to light, making clear that its denial relied only on documents submitted with the doctors’ requests.
c. October 2007 Lawsuit Last, Cobbs contends that filing this lawsuit in October 2007 should have prompted Pramstaller to review his file and authorize the cataract-removal surgery. Instead of immediately granting Cobbs’s surgery, Pramstaller moved for summary judgment, noting that his only involvement with the denial of Cobbs’s claims was his attendance at two Medical Committee meetings at which the Medical Committee denied Cobbs’s request for surgery. But Cobbs offers no reason why filing this lawsuit should have compelled Pramstaller to bypass the ordinary medicalrequest-authorization procedure. Cobbs continually saw physicians after the second denial of his claim, and Pramstaller’s denials invited Cobbs’s physicians to resubmit their requests if Cobbs’s condition worsened. Though Cobbs’s condition did worsen, his physicians elected not to pursue Medical Committee review after the Medical Committee’s second denial. Cobbs saw an optometrist three months after filing his lawsuit, and CMS approved his surgery the week after this visit. Finally, Cobbs did receive cataract removal surgery, on both eyes, in 2004 and 2008. At bottom, “federal courts are generally reluctant to second guess” medical judgments like Pramstaller
- 15 -

Case: 10-2089 Document: 006111270174 Filed: 04/10/2012 Page: 16 No. 10-2089 Cobbs v. Pramstaller, et al. and the Medical Committee’s decision to delay treatment. Alspaugh v. McConnell, 643 F.3d 162, 169 (6th Cir. 2011) (quoting Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976)). While Cobbs’s need for the second operation seems evident in hindsight, we cannot conclude that Pramstaller’s decisions to delay surgery constituted deliberate indifference in light of his limited knowledge.
III. For these reasons, we REVERSE the district court’s denial of Pramstaller’s motion for summary judgment based on qualified immunity.
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Case: 10-2089 Document: 006111270174 Filed: 04/10/2012 Page: 17
No. 10-2089 Cobbs v. Pramstaller, et al.
COLE, Circuit Judge, dissenting. I agree with the majority that Cobbs has shown that he suffered from a serious medical need. However, I believe the district court was correct in concluding that the record establishes that Pramstaller acted with deliberate indifference to that need. Therefore, I respectfully dissent.
There is no dispute that Pramstaller appreciated the significance of having, in effect, a nonfunctional eye. In his deposition, Pramstaller was presented with a variety of hypothetical scenarios involving an individual with a cataract in one eye. In several places, Pramstaller stated that the proper medical decision was to perform the surgery. For example, Pramstaller was asked whether the fact that Cobbs had one functioning “good eye” after his original surgery would remove the need for surgery on the bad eye. Pramstaller answered:
Well [the vision in the good eye] does not indicate or counterindicate, but it’s one of the factors that is taken into consideration . . . The other thing is you have someone who is, has 20/20 vision in the first cataract eye, but the second cataract eye is 20/400, and you can't see a thing out of that eye, the disparity in the visual cortex makes it difficult, so we would probably do the cataract, also. (Dep. of Pramstaller, Dist. Ct. Docket No. 106-10, at 57:19 - 58:5.) The majority notes correctly that poor visual acuity must be combined with collateral consequences, such as glare, from the deficit in order to trigger the need for surgery. In addition, Pramstaller does say that the 20/400 reading would not immediately trigger surgery if there was the possibility that the glare was caused by artificial lenses. (Dep. of Pramstaller, Dist. Ct. Docket No. 106-10, at 64:8-15.) Taken together, Pramstaller’s testimony is that a patient with (1) vision in the bad eye of 20/400 or worse; and (2)
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Case: 10-2089 Document: 006111270174 Filed: 04/10/2012 Page: 18
No. 10-2089 Cobbs v. Pramstaller, et al. suffering from collateral consequences such as glare; occurring (3) whether or not artificial lenses were worn, could expect to have surgery on the bad eye.
As of October 2004, the time of the first denial, Cobbs’s vision in his left eye was 20/400 with glare, and as of November 2005 his vision in the left eye was 20/600. (Medical Records, Dist. Ct. Docket No. 106-5, at 12-13; McGrath Dep., Dist. Ct. Docket No. 106-8, at 49:9-14.) It is undisputed that Cobbs had the qualifying collateral consequences, such as glare caused by the cataract, in addition to the poor acuity during this time period. (See Dep. of Pramstaller, Dist. Ct. Docket No. 106-10, at 56:7-23.) Furthermore, the medical records from 2005 and 2006 make clear that Cobbs’s vision problems were independent of the presence of artificial lenses. (Medical Records, Dist. Ct. Docket No. 106-5, at 34, 36.) Thus, as of the second denial of surgery in 2006, Pramstaller (1) had medical records in front of him that stated that Cobbs’s vision in his left eye was worse than 20/400, with glare, even without artificial lenses; (2) recognized (at least as of his deposition) that this should have triggered an approval of the surgery; and yet (3) denied the surgery request. This meets all three of the elements of the deliberate indifference established in our case law. See, e.g., Jones v. Muskegon Cnty., 625 F.3d 935, 941 (6th Cir. 2010)
In that light, I cannot agree with the majority that the decision not to order surgery in 2006 represents “considered medical judgment.” (Maj. Op. at 16.) I see no way to square Pramstaller’s testimony, describing the appropriate course of treatment for a patient in Cobbs’s circumstances, with the treatment Pramstaller actually ordered for Cobbs. Thus, under the standards articulated by Pramstaller himself, there was no legitimate reason not to order the surgery for Cobbs after April 2006. That Pramstaller did not do so constitutes deliberate indifference.
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Case: 10-2089 Document: 006111270174 Filed: 04/10/2012 Page: 19 No. 10-2089 Cobbs v. Pramstaller, et al.
The majority notes that Pramstaller did order opthamological monitoring of Cobbs for potential glaucoma during this period. This is beside the point. Glaucoma and cataracts are two unrelated eyes diseases, and Cobbs’s claim is for deliberate indifference toward his cataracts. The only reason the two were linked in Cobbs’s case is that Cobbs’s cataracts made it impossible to conduct the normal glaucoma examinations. Conceding that Pramstaller acted properly in ordering the extra examinations for glaucoma, proper care for one condition does not excuse improper care for another, unrelated condition.
For the above reasons, I would affirm the judgment of the district court and allow Cobbs’s case to proceed to trial on the merits.
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Case: 10-2089 Document: 006111270176 Filed: 04/10/2012 Page: 1

Leonard Green Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: April 10, 2012
Mr. Anthony D. Pignotti Law Office 645 Griswold Street Suite 3850 Detroit, MI 48226
Mr. Paul D. Reingold Michigan Clinical Law Program 801 Monroe Street Suite 363 Legal Research Building Ann Arbor, MI 48109
Mr. Clifton B. Schneider Office of the Michigan Attorney General P.O. Box 30217 Lansing, MI 48909
Re: Case No. 10-2089, Dallas Cobbs v. George Pramstaller, et al Originating Case No. : 1:07-cv-14644
Dear Counsel:
The Court issued the enclosed (Order/Opinion) today in this case.
Sincerely yours,

cc: Mr. David J. Weaver Enclosure Mandate to issue

s/Patricia J. Elder Senior Case Manager Direct Dial No. 513-564-7034

 
 1:07-cv-14644-TLL-CEB Doc # 103 Filed 12/01/09 Pg 1 of 46 Pg ID 694

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

DALLAS COBBS, #164276,
Plaintiff,
v.
GEORGE J. PRAMSTALLER, et al.,
Defendants.
Paul D. Reingold (P27594) MICHIGAN CLINICAL LAW PROGRAM Attorney for Plaintiff 363 Legal Research Building 801 Monroe Street Ann Arbor, MI 48109-1215 (734-763-4319
Clifton B. Schneider (P70582) Michigan Department of Attorney General Attorneys for MDOC Defendants 525 W. Ottawa Street P.O. Box 30217 Lansing, MI 48909 (517) 335-7021

Case No.: 07-cv-14644 Honorable Anna Diggs Taylor Magistrate Judge Charles E. Binder
Randall A. Juip (P58538) Brian J. Richtarcik (P49390) Anthony D. Pignotti (P71100) The Juip Richtarcik Law Firm Attorneys for Defendants, Correctional Medical Services, Inc., Craig Hutchinson, M.D., and Bency Mathai, M.D., only The Penobscot Building 645 Griswold Street, Suite 3850 Detroit, MI 48226 (313) 859-5900

DEFENDANTS, CORRECTIONAL MEDICAL SERVICES, INC., CRAIG HUTCHINSON, M.D., AND BENCY MATHAI, M.D.’S
MOTION FOR SUMMARY JUDGMENT PURSUANT TO FED. R. CIV. P. 56 NOW COME the Defendants, CORRECTIONAL MEDICAL SERVICES, INC., CRAIG
HUTCHINSON, M.D., and BENCY MATHAI, M.D., by and through their attorneys, THE JUIP
RICHTARCIK LAW FIRM, and for their Motion For Summary Judgment Pursuant To Fed. R.
Civ. P. 56, state as follows:
1. On or about June 10, 2008, Plaintiff filed his Amended Complaint pursuant to 42
U.S.C. § 1983 alleging claims of deliberate indifference to his serious medical

1:07-cv-14644-TLL-CEB Doc # 103 Filed 12/01/09 Pg 2 of 46 Pg ID 695
needs, specifically a cataract in his left eye, which Plaintiff alleges should have been removed earlier than it was removed. 2. With respect to Correctional Medical Services, Inc., Plaintiff alleges that its “utilization review unit approves or denies requests for specialty care, and in this case repeatedly denied Mr. Cobb’s physicians’ requests for surgical specialty care.” (Dkt #38, ¶13). 3. With respect to Craig Hutchinson, M.D., Plaintiff alleges that he “was the state medical director for Correctional Medical Services, Inc. (CMS), and a member of the Medical Services Advisory Committee.” (Dkt #38, ¶11). 4. With respect to Bency Mathai, M.D., Plaintiff alleges that she was a member “of the MSAC when the committee denied Mr. Cobbs’ physicians’ requests for a second cataract surgery.” (Dkt #38, ¶16). 5. For the following reasons, the moving Defendants are entitled to summary judgment as a matter of law pursuant to Fed. R. Civ. P. 56: a. There is no evidence that either Dr. Hutchinson or Dr. Mathai had any
personal involvement in the incidents that form the basis of Plaintiff’s Complaint; b. There is no evidence that Plaintiff’s left eye cataract ever rose to the level of being an objectively serious medical need warranting protection by the Eighth Amendment, or that either Dr. Hutchinson or Dr. Mathai ever subjectively knew and believed that Plaintiff’s left eye cataract posed a serious risk of substantial harm to Plaintiff, which they deliberately disregarded.
2

1:07-cv-14644-TLL-CEB Doc # 103 Filed 12/01/09 Pg 3 of 46 Pg ID 696

c. Vicarious liability is not a viable theory of liability under 42 U.S.C. §

1983 and there is no evidence that Defendant CMS ever maintained any

policy, practice, or procedure, that anyone ever relied upon any such

policy, practice, or procedure in the course of providing medical care and

treatment to Plaintiff, or that the execution of any such policy, practice, or

procedure proximately caused any injury or harm to Plaintiff.

6. The moving Defendants rely upon the facts and arguments set forth in their

attached supporting brief as if more fully restated herein.

7. Counsel for the moving Defendants contacted counsel for Plaintiff pursuant to

E.D. Mich. LR 7.1(a) in order to obtain the concurrence of Plaintiff’s counsel in

the relief requested herein, and same was denied.

WHEREFORE, the Defendants, CORRECTIONAL MEDICAL SERVICES, INC.,

CRAIG HUTCHINSON, M.D., and BENCY MATHAI, M.D., pray that this Honorable Court

shall grant their Motion For Summary Judgment Pursuant To Fed. R. Civ. P. 56, enter summary

judgment in their favor as a matter of law, dismiss Plaintiff’s claims against them in their entirety

with prejudice, and tax all reasonable costs and attorney fees against Plaintiff where permitted.

Respectfully submitted,

Dated: December 1, 2009

s/Brian J. Richtarcik The Juip Richtarcik Law Firm Attorneys for Defendants, Correctional Medical Services, Inc., Craig Hutchinson, M.D., and Bency Mathai, M.D., only The Penobscot Building 645 Griswold Street, Suite 3850 Detroit, MI 48226 (313) 859-5900 brichtarcik@me.com P49390

3

1:07-cv-14644-TLL-CEB Doc # 103 Filed 12/01/09 Pg 4 of 46 Pg ID 697

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

DALLAS COBBS, #164276,
Plaintiff,
v.
GEORGE J. PRAMSTALLER, et al.,
Defendants.
Paul D. Reingold (P27594) MICHIGAN CLINICAL LAW PROGRAM Attorney for Plaintiff 363 Legal Research Building 801 Monroe Street Ann Arbor, MI 48109-1215 (734-763-4319
Clifton B. Schneider (P70582) Michigan Department of Attorney General Attorneys for MDOC Defendants 525 W. Ottawa Street P.O. Box 30217 Lansing, MI 48909 (517) 335-7021

Case No.: 07-cv-14644 Honorable Anna Diggs Taylor Magistrate Judge Charles E. Binder
Randall A. Juip (P58538) Brian J. Richtarcik (P49390) Anthony D. Pignotti (P71100) The Juip Richtarcik Law Firm Attorneys for Defendants, Correctional Medical Services, Inc., Craig Hutchinson, M.D., and Bency Mathai, M.D., only The Penobscot Building 645 Griswold Street, Suite 3850 Detroit, MI 48226 (313) 859-5900

DEFENDANTS, CORRECTIONAL MEDICAL SERVICES, INC., CRAIG HUTCHINSON, M.D., AND BENCY MATHAI, M.D.’S BRIEF IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT PURSUANT TO FED. R. CIV. P. 56
PROOF OF SERVICE

1:07-cv-14644-TLL-CEB Doc # 103 Filed 12/01/09 Pg 5 of 46 Pg ID 698

TABLE OF CONTENTS

PAGE

INDEX OF AUTHORITIES.......................................................................................................ii-iii

INDEX OF EXHIBITS............................................................................................................... iv-v

ISSUES PRESENTED .................................................................................................................. vi

CONTROLLING/APPROPRIATE AUTHORITY FOR RELIEF SOUGHT ............................. vii

INTRODUCTION ...........................................................................................................................1

STATEMENT OF FACTS ..............................................................................................................1 A. Substantive History ............................................................................................................1 B. Procedural History............................................................................................................14

STANDARD OF REVIEW ...........................................................................................................16

ARGUMENTS...............................................................................................................................17

Argument I:

Defendants Should Be Granted Summary Judgment Because The Evidence Shows They Had Insufficient Personal Involvement In Deciding When Plaintiff Would Receive His Second Eye Cataract Surgery And They Were Not A Proximate Cause Of Plaintiff’s Alleged Injury. ...........................................................................................17

Argument II: Defendants Should Be Granted Summary Judgment Because Plaintiff’s Left Eye Cataract Was Not An Objectively Serious Medical Need And Defendants Did Not Believe That Plaintiff’s Left Eye Cataract Posed A Serious Risk Of Substantial Harm To Plaintiff. .....................................................................................................20

A. There Is No Objectively Serious Medical Need ...............................21 B. There Was No Subjective Knowledge Of A Risk Of Harm
That Was Deliberately Disregarded..................................................25

Argument III: Defendant CMS Should Be Granted Summary Judgment Because The Evidence Is Insufficient For Reasonable Persons To Conclude: That They Maintained An Unconstitutional Policy, Practice, Or Procedure; That Anyone Relied Upon Any Such Policy, Practice, Or Procedure; Or That The Execution Of Any Such Policy, Practice, Or Procedure Proximately Caused Any Harm Or Injury To Plaintiff. ................................................................................................30

RELIEF REQUESTED..................................................................................................................34

i

1:07-cv-14644-TLL-CEB Doc # 103 Filed 12/01/09 Pg 6 of 46 Pg ID 699

FEDERAL CASES

INDEX OF AUTHORITIES

PAGE

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505 (1986).....................................17

Bellamy v. Bradley, 729 F.2d 416 (6th Cir. 1984) ........................................................................18

Blackmore v. Kalamazoo County, 390 F.3d 890 (6th Cir. 2004)................................21, 22, 24, 25

Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548 (1986) ...................................................16

Comstock v. McCrary, 273 F.3d 693 (6th Cir. 2001)....................................................... vii, 21, 25

Dupuis v. Caskey, 2009 U.S. Dist. LEXIS 89002 (S.D. Miss. Sept. 28, 2009) ............................24

Edwards v. Bradford, 1997 U.S. Dist. LEXIS 15089 (S.D. Ala. July 16, 1997).....................22, 27

Espinosa v. Saladin, 2009 U.S. Dist. LEXIS 87199 (W.D. Mich. Sept. 23, 2009) .......................27

Estelle v. Gamble, 429 U.S. 97 (1976) ....................................................................................21, 26

Farmer v. Brennan, 511 U.S. 825 (1994).................................................................................21, 26 Garner v. Memphis Police Dep’t, 8 F.3d 358 (6th Cir. 1993) ................................................. vii, 30

Gomez v. Toledo, 446 U.S. 635 (1980).................................................................................. vii, 18

Hays v. Jefferson County, 668 F.2d 869 (6th Cir. 1982)...............................................................18

Horn v. Madison County Fiscal Court, 22 F.3d 653 (6th Cir. 1994).............................................26

Hurt v. Mahon, 2009 U.S. Dist. LEXIS 279295 (E.D. Va. Aug. 31, 2009) ..................................23

Leyser v. D’Amico, 182 Fed. Appx. 897 (9th Cir. 2006)..............................................................23

Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348 (1986).......................................................................................17

McGuckin v. Smith, 974 F.2d 1050 (9th Cir. 1992)......................................................................22

Monell v. Dep’t of Social Services of New York City, 436 U.S. 658, 98 S.Ct. 2018 (1978)................................................................................... vii, 30

Napier v. Madison County, 238 F.3d 739 (6th Cir. 2001).............................................................22

Perez v. Oakland County, 466 F.3d 416 (6th Cir. 2006) .........................................................21, 26

ii

1:07-cv-14644-TLL-CEB Doc # 103 Filed 12/01/09 Pg 7 of 46 Pg ID 700
Poe v. Haydon, 853 F.2d 418 (6th Cir. 1988)..........................................................................18, 20 Rowe v. Rivera, 2000 U.S. Dist. LEXIS 9097 (D. N.H. June 15, 2000).................................26, 29 Rylee v. Bureau of Prisons, 2009 U.S. Dist. LEXIS 24609 (D. S.C. Mar. 9, 2009) ....................24 Salehpour v. Univ. of Tenn., 159 F.3d 199 (1998)........................................................... vii, 18, 20 Samonte v. Bauman, 264 Fed. Appx. 634 (9th Cir. 2007) ............................................................27 Shehee v. Luttrell, 199 F.3d 295 (1998) ........................................................................................18 Street v. Corrections Corporation of America, 102 F.3d 810 (6th Cir. 1996) ...............................30 Street v. J.C. Bradford & Co., 886 F.2d 1472 (6th Cir. 1989).................................................17, 20 United of Omaha Life Ins. Co. v. Solomon, 960 F.2d 31 (6th Cir. 1992) .............................. vii, 18 Westlake v. Lucas, 537 F.2d 857 (6th Cir. 1976) ..........................................................................26 Williams v. Miles, 2009 U.S. Dist. LEXIS 57833 (S.D. Va. July 7, 2009)...................................28 Williams v. Shelton, 2008 U.S. Dist. LEXIS 54394 (D. Or. July 16, 2008) .................................23 Wilson v. Seiter, 501 U.S. 294 (1991).................................................................................... vii, 21 Youngberg v. Romeo, 457 U.S. 307 (1982) ..................................................................................26 FEDERAL STATUTES 42 U.S.C. § 1983................................................................................... vii, 1, 14, 17, 18, 21, 30, 31 FEDERAL RULES OF CIVIL PROCEDURE Fed. R. Civ. P. 56.....................................................................................................................16, 34 Fed. R. Civ. P. 56(e)(2)..................................................................................................................16
iii

1:07-cv-14644-TLL-CEB Doc # 103 Filed 12/01/09 Pg 8 of 46 Pg ID 701

Exhibit A
Exhibit B Exhibit C Exhibit D Exhibit E Exhibit F
Exhibit G Exhibit H Exhibit I Exhibit J Exhibit K
Exhibit L
Exhibit M
Exhibit N Exhibit O Exhibit P Exhibit Q
Exhibit R
Exhibit S

INDEX OF EXHIBITS MDOC Offender Tracking Information System file for Dallas Cobbs, #164276 Judgment of Sentence Form Deposition Transcript of Craig Hutchinson, M.D. Deposition Transcript of Michael McGrath, O.D. MDOC Transfer Order Excerpts of MDOC Medical Chart of Dallas Cobbs, #164276 [FILED UNDER SEAL] MDOC Policy Directive 03.04.100 MDOC Operating Procedure 03.04.100 Deposition Transcript of George Pramstaller, M.D. “Ophthalmology Guidance,” Federal Bureau of Prisons, February, 2008 “Clinical Policy Bulletin: Cataract Removal Surgery,” Aetna, Effective Date: 6/12/2001 “Local Coverage Determinations,” Centers for Medicare and Medicaid Services (CMS), Effective Date: 6/5/2009 Edwards v. Bradford, 1997 U.S. Dist. LEXIS 15089 (S.D. Ala. July 16, 1997) Hurt v. Mahon, 2009 U.S. Dist. LEXIS 279395 (E.D. Va. Aug. 31, 2009) Williams v. Shelton, 2008 U.S. Dist. LEXIS 54394 (D. Or. July 16, 2008) Leyster v. D’Amico, 182 F.3d Appx. 897 (9th Cir. 2006) Dupuis v. Caskey, 2009 U.S. Dist. LEXIS 89002 (S.D. Miss. Sept. 28, 2009) Rylee v. Bureau of Prisons, 2009 U.S. Dist. LEXIS 24609 (D. S.C. Mar. 9, 2009) Rowe v. Rivera, 2000 U.S. Dist. LEXIS 9097 (D. N.H. June 15, 2000)
iv

1:07-cv-14644-TLL-CEB Doc # 103 Filed 12/01/09 Pg 9 of 46 Pg ID 702

Exhibit T Exhibit U
Exhibit V

Samonte v. Bauman, 264 Fed. Appx. 634 (9th Cir. 2007)
Espinosa v. Saladin, 2009 U.S. Dist. LEXIS 87199 (W.D. Mich. Sept. 23, 2009)
Williams v. Miles, 2009 U.S. Dist. LEXIS 57833 (S.D. Va. July 7, 2009)

v

1:07-cv-14644-TLL-CEB Doc # 103 Filed 12/01/09 Pg 10 of 46 Pg ID 703

ISSUES PRESENTED

WHETHER DEFENDANTS CMS, DR. HUTCHINSON, AND DR. MATHAI SHOULD BE GRANTED SUMMARY JUDGEMENT SINCE THE EVIDENCE IS INSUFFICIENT FOR REASONABLE PERSONS TO CONCLUDE THAT THEY HAD SUFFICIENT PERSONAL INVOLVEMENT IN THE ALLEGED INCIDENTS FORMING THE BASIS OF PLAINTIFF’S CLAIMS.

Defendants Answer:

Yes.

Plaintiff Answers:

No.

WHETHER DEFENDANTS CMS, DR. HUTCHINSON, AND DR. MATHAI SHOULD BE GRANTED SUMMARY JUDGEMENT SINCE THE EVIDENCE IS INSUFFICIENT FOR REASONABLE PERSONS TO CONCLUDE THEY HAD AUTHORITY TO PROVIDE SECOND EYE CATARACT SURGERY TO PLAINTIFF UNDER THE CIRCUMSTANCES.

Defendants Answer:

Yes.

Plaintiff Answers:

No.

WHETHER DEFENDANTS CMS, DR. HUTCHINSON, AND DR. MATHAI SHOULD BE GRANTED SUMMARY JUDGEMENT SINCE THE EVIDENCE IS INSUFFICIENT FOR REASONABLE PERSONS TO CONCLUDE: THAT PLAINTIFF’S LEFT EYE CATARACT WAS AN OJBECTIVELY SERIOUS MEDICAL NEED WARRANTING PROTECTION BY THE EIGHTH AMENDMENT; OR THAT DEFENDANTS SUBJECTIVELY KNEW AND BELIEVED THAT PLAINITFF’S LEFT EYE CATARACT POSED A SERIOUS RISK OF SUBSTANTIAL HARM TO PLAINTIFF THAT THEY DELIBERATELY DISREGARDED.

Defendants Answer:

Yes.

Plaintiff Answers:

No.

WHETHER DEFENDANT CMS SHOULD BE GRANTED SUMMARY JUDGEMENT SINCE THE EVIDENCE IS INSUFFICIENT FOR REASONABLE PERSONS TO CONCLUDE: THAT CMS MAINTAINED AN UNCONSTITUTIONAL POLICY, PRACTICE, OR PROCEDURE; THAT ANYONE RELIED UPON AN UNCONSTITUTIONAL POLICY, PRACTICE, OR PROCEDURE BY CMS; OR THAT THE EXECUTION OF ANY POLICY, PRACTICE, OR PROCEDURE BY CMS PROXIMATELY CAUSED ANY HARM OR INJURY TO PLAINTIFF.

Defendants Answer:

Yes.

Plaintiff Answers:

No.

vi

1:07-cv-14644-TLL-CEB Doc # 103 Filed 12/01/09 Pg 11 of 46 Pg ID 704
CONTROLLING/APPROPRIATE AUTHORITY FOR RELIEF SOUGHT The two essential elements for a claim under 42 U.S.C. § 1983 are: (1) deprivation or violation of a federally protected right, privilege, or immunity, and (2) the fact that the action of the defendant in violating the federal protected right was taken under color of state law. Gomez v. Toledo, 446 U.S. 635 (1980); United of Omaha Life Ins. Co. v. Solomon, 960 F.2d 31, 33 (6th Cir. 1992). A plaintiff must make a clear showing that each named defendant was personally involved in the activity that forms the basis of the complaint. Salehpour v. Univ. of Tenn., 159 F.3d 199, 206-207 (1998). In order to state a § 1983 claim for a violation of a prisoner’s Eighth Amendment rights due to inadequate medical care, the prisoner must allege facts evidencing a deliberate indifference to serious medical needs. Wilson v. Seiter, 501 U.S. 294, 297 (1991). In order to succeed on such a claim, a prisoner must satisfy two elements, an objective one and a subjective one. Comstock v. McCrary, 273 F.3d 693, 702 (6th Cir. 2001). In other words, the prisoner must show that he had a serious medical need, and he must show that the defendant, being aware of that need, acted with deliberate indifference to it. Wilson, 501 U.S. at 300. While municipalities may be subject to suit under 42 U.S.C. § 1983, it is not enough for a Plaintiff to merely allege liability on a theory of respondeat superior. Monell v. Dep’t of Social Services of New York City, 436 U.S. 658, 691, 98 S.Ct. 2018 (1978). “Instead it is when execution of a government’s policy . . . inflicts the injury that the government as an entity is responsible under § 1983.” Id. at 694. In order to satisfy the requirements set forth in Monell, a Plaintiff must identify a particular policy, connect the policy to the municipality, and demonstrate that the particular constitutional violation alleged resulted from the execution of that policy. Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir. 1993).
vii

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INTRODUCTION Plaintiff’s Amended Complaint pursuant to 42 U.S.C. § 1983 alleges Defendants were deliberately indifferent to his serious medical needs by failing to provide him cataract surgery in a timely manner. Plaintiff’s claims against Defendants Correctional Medical Services, Inc. (CMS), Dr. Hutchinson, and Dr. Mathai should fail because the evidence demonstrates that all decisions whether Plaintiff would receive second eye cataract surgery were made by the Chief Medical Officer of the MDOC based on medical criteria established by the MDOC. Therefore, Defendants CMS, Dr. Hutchinson and Dr. Mathai had insufficient personal involvement in any decision to deny Plaintiff’s second eye cataract surgery, and they were not a proximate cause of any injuries alleged by Plaintiff. In the alternative, even if this court finds that Defendants CMS, Dr. Hutchinson and/or Dr. Mathai had sufficient personal involvement to support a claim for deliberate indifference to a serious medical need, Plaintiff’s second eye cataract did not constitute an objectively serious medical need under the circumstances, consistent with established legal precedent.
STATEMENT OF FACTS A. Substantive History
Plaintiff, Dallas Cobbs, #164276, is a 54-year-old, male who is currently incarcerated by the Michigan Department of Corrections (hereinafter “MDOC”) at the Ryan Correctional Facility, located in Detroit, Michigan. (Ex. A).1 This case concern incidents that occurred between 2004 and 2008 while Plaintiff was incarcerated at the MDOC’s Ryan Correctional
1 On December 12, 1985, Plaintiff was sentenced to life in prison. (Ex. B).
1

1:07-cv-14644-TLL-CEB Doc # 103 Filed 12/01/09 Pg 13 of 46 Pg ID 706
Facility. During the period in question, Defendant Correctional Medical Services, Inc. (hereinafter “CMS”) contracted with the State of Michigan to provide certain health care services to inmates incarcerated by the MDOC. Defendant Craig Hutchinson, M.D. was employed by CMS as its Senior Regional Medical Director in Michigan from July 1999 until July 2007. (Ex. C, pp. 9-10). Dr. Hutchinson also contracted with CMS to perform full-time clinical practice in infectious diseases from July 2007 until March 31, 2009. (Ex. C, p. 10). Defendant Bency Mathai, M.D was an independent contractor of CMS prior to September 2007 after which she succeeded Dr. Hutchinson as CMS’s Senior Regional Medical Director in Michigan until March 31, 2009. Neither Dr. Hutchinson, nor Dr. Mathai had any contact in any form with Plaintiff.
Plaintiff transferred into the Ryan Correctional Facility May 28, 1998. (Ex. E). On March 31, 2004, Plaintiff underwent an optometric vision screening with Michael McGrath, O.D., an optometrist. (Ex. F, pp. 136, 370). Plaintiff’s visual acuity2 in his right eye was 20/200 and his best corrected visual acuity in his left eye was 20/40. (Ex. F, p. 370). Dr. McGrath assessed Plaintiff with bilateral cataracts.3 (Ex. F, p. 370). Dr. McGrath then submitted a routine consultation request to CMS’s utilization review department for Plaintiff to see an ophthalmologist within one month. Plaintiff’s vision in his right eye had changed from 20/204 with correction to 20/200 due to a dense cataract on his right eye, and Plaintiff had early intraocular clouding in the left eye with a best corrected visual acuity of 20/40. (Ex. F, p. 353). On April 1, 2004, Dr. DeMasi, a utilization review physician employed by CMS, responded that the ophthalmology consultation was not authorized because Plaintiff still had a best corrected
2 “Visual acuity” is a “measure of the resolving power of the eye. It is usually determined by one’s ability to read letters of various sizes at a standard distance from the test chart. The result is expressed as a compaison: for example, 20/20 is normal vision, meaning the subject’s eye has the ability to see from a distance of 20 ft (6.1m) what a person with normal vision should see at that distance. Visual acuity of 20/40 means that a person sees at 20 ft (6.1m) what a person with normal vision sees from a distance of 40ft (12.2m).” Taber’s Cyclopedic Medical Dictionary, 21st Edition, 2009. 3 “Cataract” is “an opacity of the lens of the eye.” Taber’s Cyclopedic Medical Dictionary, 21st Edition, 2009. 4 On September 11, 2002, Plaintiff had a visual acuity in his right of 20/20. (Ex. F, p. 371).
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overall visual acuity of 20/40. (Ex. F, p. 350). On May 10, 2004, Paul Piper, M.D., Plaintiff’s
medical service provider (hereinafter “MSP”) at Ryan Correctional Facility, initiated an appeal
of the April 1, 2004 denial, noting that Plaintiff’s visual acuity in his right eye had changed from
20/20 to 2/200 due to a dense, right eye cataract. (Ex. F, p. 350). The appeal process is
governed by MDOC Operating Procedures. 5 On May 12, 2004, Dr. DeMasi responded to the
appeal, and again explained that the request was not authorized because Plaintiff’s visual acuity
in his left eye was still 20/40. (Ex. F, p. 350). On May 12, 2004, Dr. Piper noted in the progress
notes that the “ophthalmology referral denied by Dr. DeMasi-CMS as inmate is legally blind in
O.D.6 from dense cataract and has 20/40 vision O.S.7 I think cataract surg[ery] is indicated if it
5 MDOC Operating Procedure 03.04.100 further provides that the MSP is responsible for providing all necessary prisoner medical care within their level of expertise and the capabilities of the respective facility. (Ex. H, ¶B). If the level of care that a prisoner requires is beyond the primary level of care provided at his institution, the MSP is responsible for making referral to the Network Provider for offsite specialty care. (Ex. H, ¶C). In the present case, the Network Provider was Correctional Medical Services, Inc. (“CMS”). (Ex. I, pp. 18-19). CMS responsible for receiving the referral request from the MSP and screening it against approved MDOC criteria for the provision of off-site specialty care. (Ex. H, ¶ E.3). In the present case, the referral request was first reviewed by a CMS utilization review nurse, who screened the request to determine if it was clearly medically necessary based on upon the nurse’s review of certain criteria. (Ex. C, p. 16). If the requested referral was clearly medically necessary, the nurse could authorize the referral. (Ex. C, p. 16). If the nurse was uncertain as to whether the requested referral was medically necessary, the nurse could pend the request for additional information, and could then make a determination as to medical necessity upon receipt of further information. (Ex. C, pp. 16-17). A utilization review nurse only had the authority to authorize a request or pend it for more information. (Ex. C, p. 17). The nurse did not have the authority to not authorize a request; only a physician could not authorize a request. (Ex. C, p.17). If the referral request did not meet the criteria, CMS’s utilization review nurse referred the request to its utilization review physician. (Ex. H, ¶E.8). The utilization review physician then reviewed the case and made a determination. (Ex. H, ¶E.9). If the request was not authorized, the MSP could then initiate the appeals process if he, in his best medical judgment, believed that the non-approval was unwarranted. (Ex. H, ¶E.11). If the MSP appealed the non-approval, CMS’s utilization review physician again reviewed the appeal and any additional documentation submitted with it, and again determined whether it should be approved. (Ex. H, ¶E.15). If the request was again not authorized, and the MSP disagreed with the non-authorization, the MSP could then forward the second step appeal to the MDOC Regional Medical Officer. (Ex. H, ¶E.20). The Regional Medical Officer then reviewed the appeal for completeness and forwarded it to the Chief Medical Officer (“CMO”) of the MDOC, which in this case was Dr. Pramstaller, with a request that the case be placed on the next MSAC Agenda. (Ex. H, ¶¶ E.21, E.22). The MSAC (Medical Services Advisory Committee) was chaired by the CMO, and consisted of the Regional Medical Officers, the Director of Medical Services at Duane L. Waters Hospital, and others as determined by the Bureau of Health Care Services (“BHCS”). (Ex. G, ¶ L). The CMO had the ultimate authority to decide the outcome of the second appeal. (Ex. H, ¶E.26; Ex. C, pp. 60-61). None of the other members of the MSAC had a vote in the ultimate outcome. (Ex. I, p. 43; Ex. C, pp. 60-61). Dr. Pramstaller also testified that not all of the members of the MSAC always participated in every discussion. (Ex. I, p. 43). The CMO then notified the MSP of the MSAC decision by memo. (Ex. H, ¶E.27) 6 “O.D” is an optometric abbreviation for “right eye.” Taber’s Cyclopedic Medical Dictionary, 21st Edition, 2009. 7 “O.S.” is an optometric abbreviation for “left eye.” Taber’s Cyclopedic Medical Dictionary, 21st Edition, 2009.
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will correct vision.” (Ex. F, p. 134). On May 18, 2004, Dr. Piper completed the next step in the MDOC appeal process by completing an appeal form, which was sent to the Regional Medical Director employed by the MDOC, Dr. Clark. (Ex. F, pp. 134, 490). On June 22, 2004, Dr. Clark forwarded the appeal to the MDOC’s Medical Services Advisory Committee (MSAC). The MDOC Chief Medical Officer is the chief physician of the MDOC, and pursuant to MDOC Operating Procedure 03.04.100 has the final authority concerning what medical care should be provided. The MSAC conducted a meeting during which it discussed Plaintiff’s ophthalmology consultation request. (Ex. F, pp. 349, 350). As CMO, Dr. Pramstaller then decided that Plaintiff should be approved for cataract surgery on his right eye based upon his “lifer status.” (Ex. F, pp. 349, 350). An ophthalmology consultation was then scheduled for July 27, 2004 to evaluate Plaintiff’s dense cataract in his right eye. (Ex. F, p. 350).
On July 27, 2004, Plaintiff received an ophthalmology consultation with Ghulam Dastgir, M.D. (Ex. F, pp. 132, 348, 341-342). Plaintiff’s best corrected visual acuity was hand motion to finger counting at ½ foot in his right eye and 20/70 in the left eye. (Ex. F, pp. 341-342). Dr. Dastgir assessed Plaintiff with 1) a hypermature cataract of the right eye, and 2) a dense posterior subcapsular cataract in the left eye. (Ex. F, pp. 341-342). Dr. Dastgir recommended an A and B scan of Plaintiff’s right and left eyes at the Parkside Eye Clinic and cataract extraction with lens implants in both eyes, the right eye being first. (Ex. F, pp. 341-342). Dr. Dastgir also scheduled Plaintiff to have both surgeries, although the MSAC authorize surgery in the right eye only. (Ex. F, pp. 341-342).
On July 29, 2004, Dr. Piper submitted a routine authorization request for Plaintiff to undergo bilateral cataract extractions with lens implants. (Ex. F, p. 345). On August 3, 2004, the request for A and B scans of Plaintiff’s right eye and the cataract extraction of Plaintiff’s
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right eye with a lens implant was non-authorized by Dr. Forshee, another utilization review physician for CMS. (Ex. F, p. 344).8 But, Dr. Forshee agreed Plaintiff should receive the A scan of Plaintiff’s left eye, cataract removal in Plaintiff’s left eye with lens implant, a one day post-op follow-up, and a one week follow-up appointment. (Ex. F, p. 344).9
On August 23, 2004, Plaintiff underwent A and B scans of his right eye and an A scan of his left eye at the Parkside Eye Clinic. (Ex. F, p. 337). On August 30, 2004, Plaintiff underwent cataract surgery on his right eye. (Ex. F, p. 131). On August 31, 2004, Plaintiff returned to see Dr. Dastgir for his one-day follow-up, as scheduled, and his visual acuity in his right eye had improved to 20/70 without correction. (Ex. F, p. 333). Dr. Dastgir then assessed Plaintiff with 1) pseudophakia10 of the right eye, and 2) dense posterior subcapsular cataract of the left eye. (Ex. F, p. 333). Dr. Dastgir requested that Plaintiff be brought back for cataract extraction with lens implant in his left eye, although the MSAC still had not authorized the second surgery. (Ex. F, p. 333).
On September 15, 2004, Plaintiff again saw Dr. McGrath for an optometric examination. (Ex. F, p. 369). Dr. McGrath noted that Plaintiff had cataract surgery on his right eye two weeks ago, and that Plaintiff was a candidate for cataract surgery on his left eye. (Ex. F, p. 369).
On October 7, 2004, Dr. Piper submitted a routine consultation request for Plaintiff to see the ophthalmologist, as recommended by Dr. Dastgir. (Ex. F, p. 328). On October 11, 2004, the consultation request was pended by Dr. Forshee, who noted that the request was sent to the
8 It appears that Dr. Forshee meant to deny the A and B scans and the cataract extraction with lens implant of Plaintiff’s left eye, even though he indicated that his denial was with respect to Plaintiff’s right eye. 9 Again, it appears that Dr. Forshee confused the right and left eye and intended to authorize the A scan and cataract extraction of Plaintiff’s right eye. 10 “Pseudophakia” is the “condition in which an artificial lens has been implanted in the eye, e.g., after cataract surgery to remove a cloudy lens.” Taber’s Cyclopedic Medical Dictionary, 21st Edition, 2009.
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MSAC for evaluation.11 (Ex. F, p. 329). On October 26, 2004, the MSAC conducted a meeting
during which it discussed the request for an extraction of Plaintiff’s left eye cataract. (Ex. F, p.
326). Dr. Pramstaller then issued a memorandum directing that the request for a cataract
extraction for Plaintiff’s left eye was not approved. (Ex. F, p. 326).
On May 10, 2005, Plaintiff saw Sean Connolly, O.D., another optometrist at Ryan
Correctional Facility, for an optometric evaluation. (Ex. F, p. 368). Dr. Connolly noted that
Plaintiff had cataract surgery on his right eye in August, 2004 and wanted cataract surgery on his
left eye, but was previously denied by the MSAC. (Ex. F, p. 368). Dr. Connolly then submitted
a routine specialty consultation request for Plaintiff to be evaluated for cataracts and possible
surgery, noting that Plaintiff’s best corrected visual acuity was 20/30. (Ex. F, p. 325). On May
18, 2005, the ophthalmology consultation request was pended with a request for the optometry
notes from May 10, 2005. (Ex. F, p. 323). On May 31, 2005, after Dr. Connolly’s optometry
notes were submitted to CMS’ utilization review department, the ophthalmology consultation
was non-authorized by Keith Ivens, M.D., a utilization review physician for CMS, because the
MSAC had already denied the surgery on 10/26/2004. (Ex. F, p. 323).
Plaintiff was next seen on December 14, 2005 by Dr. McGrath who recommended that
Plaintiff receive cataract surgery on his left eye. (Ex. F, p. 124). Dr. McGrath submitted a
11 Dr. Pramstaller explained that generally all requests for second eye cataract removal surgeries had to go through the MSAC. (Ex. I, p. 79). Dr. Pramstaller explained that cases brought before the MSAC were reviewed on a case by case basis. (Ex. I, p. 77). Dr. Pramstaller explained that in determining whether to authorize a second eye cataract, it was determined whether it was medically necessary to authorize the surgery immediately or whether it could be deferred to a later date without any danger to the patient or any adverse effect on the ability to perform the surgery at a later date. (Ex. I, p. 53). Dr. Pramstaller explained that the conditions that would put the patient at risk if the surgery was not authorized are: 1) if the patient has diabetic retinopathy; 2) if the patient experienced posterior subcapsular glare; and 3) if the patient had a great discrepancy in vision. (Ex. I, pp. 54-58). Dr. Pramstaller explained that if a patient had one of the three conditions outlined above, cataract surgery would be authorized. (Ex. I, p. 76). Dr. Pramstaller also explained that if none of the above three conditions are a concern for a patient with a second eye cataract, the risk of harm to the patient is minimal. (Ex. I, p. 80). Dr. Pramstaller developed these criteria in conjunction with ophthalmologists. (Ex. I, p. 81). Again, while the MSAC discussed the requested referrals presented to it, the members of the MSAC had no vote in the ultimate decision, and the final decision was made solely by Dr. Pramstaller. (Ex. H, ¶E.26; Ex. C, pp. 60-61; Ex. I, p. 43).
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routine ophthalmology consultation request, noting that Plaintiff’s best corrected vision in his left eye was only 20/600 and that he had trouble with depth perception. (Ex. F, p. 322). Dr. McGrath also noted that it was not possible to view the lens or retina in Plaintiff’s left eye and that Plaintiff alleged he walked into an object on his left side. (Ex. F, p. 322). On December 27, 2005, the ophthalmology consultation was non-authorized by Dr. Ivens because Plaintiff responded well to the surgery on his right eye thereby providing excellent best corrected visual acuity and the MSAC had already reviewed Plaintiff’s case and denied the left eye cataract surgery. (Ex. F, p. 321). On January 11, 2006, Dr. McGrath noted that Plaintiff should return to optometry in 2 months to rule out secondary glaucoma. (Ex. F, p. 321).
Two months later, on March 1, 2006, Plaintiff returned to see Dr. McGrath for a followup optometry examination. (Ex. F, p. 367). Plaintiff’s visual acuity in his right eye was 20/20 and his left eye was 20/CF.12 (Ex. F, p. 367). Dr. McGrath then submitted another routine ophthalmology consultation request for Plaintiff to have cataract surgery to remove his left eye cataract. (Ex. F, p. 320). Dr. McGrath noted that Plaintiff had a dense left eye cataract with possible secondary glaucoma as a risk factor. (Ex. F, p. 320).
On March 15, 2006, the ophthalmology request was again non-authorized by Dr. Ivens because Plaintiff responded well to the right eye surgery with a best corrected visual acuity of 20/20 and the MSAC already reviewed the case and had already denied another ophthalmology consultation. (Ex. F, p. 314). On March 29, 2006, Dr. McGrath appealed the non-authorization, explaining that surgery was advised to prevent secondary glaucoma and that it was not possible to visually examine the back of Plaintiff’s eye because his left retina was not visible. (Ex. F, p. 314). On April 3, 2006, the request was pended by Dr. Ivens and was sent back to the MSAC for review. (Ex. F, p. 314). On April 25, 2006, Dr. Pramstaller issued another memo directing that
12 “CF” is an abbreviation for counting fingers.
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the previous non-approval of another ophthalmology consult was upheld. (Ex. F, p. 313). The memo also directed that Plaintiff’s intraocular pressure13 should be monitored closely to rule out glaucoma and that a request should be resubmitted if the pressure increased. (Ex. F, p. 313).14
On July 27, 2006, Plaintiff was seen by Dr. Piper, who noted that Plaintiff had markedly decreased vision in his left eye and that a review of the medical chart revealed a deterioration of vision in the left eye from 20/40 in 2004 to 20/400 in December, 2005. (Ex. F, p. 122). Dr. Piper then submitted a routine ophthalmology request, noting that Plaintiff had a presumed diagnosis of decreased vision in his left eye with a cataract. (Ex. F, p. 312). On August 8, 2006, the authorization request was pended by Brenda Jones, RN, a utilization review nurse, with a request for more information as follows: “Dr. Piper – MSAC not authorized ophthalmology for Lt eye cataract on 4-25-06. Did you (the prison) receive that information? If not, I could resend it. Would you like to withdraw?” (Ex. F, p. 307). Dr. Piper responded that same day that according to the optometrist, Plaintiff’s vision in his left eye has deteriorated significantly secondary to cataract and that he did not see anything in the chart from the MSAC dated 4/25/06. (Ex. F, p. 307). On August 11, 2006, the authorization request was again pended by RN Jones, noting that the April, 2006 decision form and the MSAC memorandum were faxed to Dr. Piper. (Ex. F, p. 307). Dr. Piper did not pursue the authorization request further and it was automatically denied for lack of a response. (E Ex. F, p. 307).
On December 4, 2006, Dr. Piper performed a medical chart review and noted that he would refer Plaintiff to the optometrist to measure his eye pressure to determine any significant increase since the previous year, as recommended by Dr. Pramstaller on 4/25/06. (Ex. F, pp.
13 Intraocular pressure is measured in mmHg (millimeters of mercury). The normal range for intraocular pressure is 10-21 mmHg. “Tonometry,” National Institutes of Health, http://www.nlm.nih.gov/MEDLINEPLUS/ency/article/003447.htm. Measuring the intraocular pressure is one of two ways to evaluate a patient for glaucoma. (Ex. C, p. 103). 14 Plaintiff’s intraocular pressure never became abnormal in his left eye, and Plaintiff never developed glaucoma.
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114, 313). On December 13, 2006, Plaintiff had an optometry examination with Dr. McGrath. (Ex. F, p. 365). Plaintiff’s visual acuity in his right eye was 20/20. (Ex. F, p. 365). Dr. McGrath noted that he had no view of Plaintiff’s left eye, which had a visual acuity of CF. (Ex. F, p. 365). Plaintiff’s intraocular pressure in both his right and left eyes was 11 mmHg, which was well within the normal range. (Ex. F, p. 364). Dr. McGrath assessed Plaintiff with a left eye cataract and recommended that Plaintiff be referred to the ophthalmologist. (Ex. F, p. 365). On that same day, Dr. McGrath submitted a routine ophthalmology consultation authorization request form, noting that Plaintiff had a dense cataract on his left eye and that he could not view Plaintiff’s retina. (Ex. F, p. 297). Dr. McGrath also noted that Plaintiff developed anemia and that the health of his left eye could not be evaluated. 15 (Ex. F, p. 297).
On February 14, 2007, it was noted that the ophthalmology request dated December 13, 2006 was received on February 6, 2007. (Ex. F, p. 355). The authorization request was pended by RN Jones as follows: “Is there an optometry exam from 12/13/06? Need visual acuity.” (Ex. F, p. 355). On February 21, 2007, the December 12, 2006 authorization request was pended again by Dr. Hutchinson, who requested a translation of a word on the authorization request form. (Ex. F, p. 355). On February 28, 2007, Dr. McGrath responded by noting that the word was “anemia.” (Ex. F, p. 355). On March 6, 2007, the ophthalmology request was nonauthorized by Dr. Hutchinson because Plaintiff’s visual acuity in his right eye was 20/20. (Ex. F, p. 354).
15 Dr. McGrath testified at his deposition that his concern for the health of the left eye concerned evaluation for glaucoma and retinopathy. Dr. McGrath stated was able to adequately monitor Plaintiff’s eye for glaucoma by monitoring his interocular eye pressure which always remained within normal range. Plaintiff was not a threat for diabetic retinopathy since Plaintiff did not have diabetes. Non-diabetic retinopathy is rare, and even rarer in only one eye, therefore he could adequately monitor Plaintiff’s corrected eye for retinopathy. Plaintiff never developed either glaucoma or retinopathy. (Ex. D, p. 130-132).
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On May 30, 2007, Plaintiff had another optometry examination with Dr. McGrath. (Ex. F, p. 364). Plaintiff reported to Dr. McGrath that he experienced monocular double vision, in his right eye, for the past two months. (Ex. F, p. 364). Dr. McGrath then examined Plaintiff’s eyes and determined that he had a slight secondary cataract on his right eye and a dense cataract on his left eye. (Ex. F, p. 364). Plaintiff’s visual acuity in his right eye was 20/50 and his visual acuity in his left eye was CF. (Ex. F, p. 364). Plaintiff’s intraocular pressure in each eye was measured twice and revealed readings of 13 mmHg then 14 mmHg in each eye, within normal limits. (Ex. F, p. 364). Dr. McGrath then determined that Plaintiff should be referred to ophthalmology and he submitted an ophthalmology consultation request form, noting that Plaintiff had decreased vision in his right eye and a dense cataract in his left eye. (Ex. F, pp. 364, 240). The request did not mention Plaintiff’s complaint of monocular double vision in his right eye. 16 (Ex. F, p. 240). On June 15, 2007, Dr. Ivens non-authorized the ophthalmology consult request on the grounds that no reason was given for an appeal of the previous decision to not authorize an ophthalmology request form based on the MSAC’s decision. (Ex. F, p. 293). On July 15, 2007, Dr. McGrath responded that he could not view Plaintiff’s retina to evaluate the health of Plaintiff’s left eye due to a dense cataract. (Ex. F, p. 293). On July 19, 2007, the authorization request was pended by RN Jones for the reason that an ophthalmology consultation for Plaintiff’s left eye was already denied on two occasions and that Dr. McGrath’s next step was to appeal it to the MDOC’s RMO/MSAC. (Ex. F, p. 293). Dr. McGrath did not appeal the consultation request to the RMO or the MSAC.
On September 31, 2007, Plaintiff submitted a kite regarding his eye, and an appointment with a nurse was scheduled for October 5, 2007. (Ex. F, p. 113). On October 5, 2007, Plaintiff
16 Dr. McGrath testified at his deposition that Plaintiff’s reported monocular double vision was not affected by the cataract in his left eye. (Ex. D, p. 130-132).
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saw Linda Butts, RN, as scheduled. (Ex. F, p. 64). Nurse Butts noted that Plaintiff complained of frequent episodes of eye strain which sometimes caused him to have headaches, as well as episodes of blurry vision. (Ex. F, p. 64). RN Butts then gave Plaintiff an eye patch to wear over his left eye. (Ex. F, p. 64).
On November 8, 2007, Plaintiff submitted another kite regarding his left eye and nursing noted that he had an appointment scheduled with a nurse on 11/13/07. (Ex. F, p. 113). On November 13, 2007, Plaintiff was again seen by RN Butts, as scheduled. (Ex. F, p. 61). Plaintiff complained that he had headaches that he believed were caused by the strain that he experienced from trying to see out of his right eye only. (Ex. F, p. 61). Plaintiff also stated that he reads a lot. (Ex. F, p. 61). RN Butts instructed Plaintiff to decrease his reading time, to take frequent breaks, and to blink while reading to reduce the strain. (Ex. F, p. 61). RN Butts concluded that Plaintiff with alteration in comfort secondary to headache and limited vision and provided him with Acetaminophen. (Ex. F, p. 61).
On February 6, 2008, Plaintiff was again seen by Dr. McGrath for an optometry examination and Dr. McGrath noted that Plaintiff was wearing an eye patch on his left eye due to his cataract. (Ex. F, p. 363). Plaintiff’s visual acuity in his right eye was 20/30 after laser surgery and his visual acuity in his left eye was CF. (Ex. F, p. 363). Plaintiff’s intraocular pressure in both eyes was 14 mmHg. (Ex. F, p. 363). Dr. McGrath submitted another routine ophthalmology consultation request form, noting that Plaintiff now complained of binocular double vision. (Ex. F, p. 180). On February 12, 2008, the ophthalmology consultation request was approved by Dr. Ivens because Plaintiff appeared to have binocular double vision, and an appointment was scheduled for Plaintiff to see Dr. Dastgir on February 26, 2008. (Ex. F, p. 180).
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On February 26, 2008, Plaintiff had an ophthalmology consultation with Dr. Dastgir as
scheduled. (Ex. F, pp. 35-36). Plaintiff’s visual acuity in his right eye decreased to 20/50 and
he experienced barely light perception in his left eye at ¼ foot. (Ex. F, pp. 35-36). Dr. Dastgir
assessed Plaintiff with 1) hypermature chalk white cataract of the left eye with inability to see the
fundus,17 2) pseudophakia of the right eye, and 3) diplopia18 due to exotropia19 of the left eye.
(Ex. F, pp. 35-36). Dr. Dastgir recommended A and B scans of Plaintiff’s left eye and cataract
extraction of the left eye with lens implant. (Ex. F, pp. 35-36).
On March 10, 2008, Dr. Piper submitted a consultation request for the procedures
recommended by Dr. Dastgir. (Ex. F, pp. 31, 32). On March 14, 2008, the consultation request,
as well as two post-operative, follow-up appointments, were approved at the request of the
MSAC, due to the decrease in Plaintiff’s best visual acuity to 20/50 and in consideration of his
complaints of double vision.20 (Ex. F, p. 32). On April 14, 2008, Plaintiff underwent a cataract
17 The “fundus” is the “posterior part of the eye including the retina and optic nerve.” Taber’s Cyclopedic Medical Dictionary, 21st Edition, 2009. 18 “Diplopia” is a synonym for “double vision.” Taber’s Cyclopedic Medical Dictionary, 21st Edition, 2009. 19 “Exotropia” refers to an “abnormal turning outward of one or both eyes.” Taber’s Cyclopedic Medical Dictionary, 21st Edition, 2009. 20 It should be noted that Plaintiff’s second-eye cataract surgery was authorized at the same or at a less advanced stage than is required by other similar organizations, as well as organizations providing coverage for procedures for unincarcerated persons. According to the Federal Bureau of Prisons’ guidelines, for example, a prisoner may only receive second eye cataract surgery if they have a documented, best corrected visual acuity of 20/100 or worse, or under certain exceptional circumstances, which Plaintiff would not have satisfied. (Ex. J). Plaintiff did not meet these requirements. According to the policy established by Aetna, a leading national insurance company, cataract surgery is considered medically necessary for members with a visual acuity of 20/50 or worse if the member perceives that his ability to carry out daily functions (i.e., driving, watching television, occupation/vocational needs, etc.) is impaired, the member has a visual acuity of 20/50 or worse in the affected eye, and the member is educated about the risks and benefits of cataract surgery as well as alternatives, or if the member has some other condition, such as a lens-induced disease (e.g., certain types of glaucoma) or there is a need to visualize the retina in patients with conditions, such as diabetes.. (Ex. K). Here, Plaintiff received cataract surgery on his left eye at the same time as he would have been eligible under Aetna’s guidelines. Finally, according to the Local Coverage Determination guidelines established by the Centers for Medicare and Medicaid Services, which are applicable to Medicare/Medicaid eligible persons in Michigan, cataract removal surgery is medically necessary for patients who have decreased ability to carry out activities of daily living (e.g., reading, watching television, driving, or meeting occupational/vocational expectations), a visual acuity of 20/50 or worse, the patient has determined that he can no longer function adequately with the current visual function, other eye diseases have been ruled out as the primary cause of visual function, significant improvement in visual function can be expected as a result of the surgery, the patient has been educated about the risks and benefits of cataract surgery and alternatives, and the patient has
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extraction and lens implant on his left eye. (Ex. F, p. 190). On April 15, 2008, the day after Plaintiff underwent a cataract extraction and lens implant in his left eye, Plaintiff had a follow-up visit with Dr. Dastgir, as scheduled. (Ex. F, pp. 111, 190). Dr. Dastgir noted that a suture was placed in Plaintiff’s left eye because the surgical wound was leaking. (Ex. F, p. 190). Dr. Dastgir recommended that Plaintiff return in one week to have his suture removed. (Ex. F, p. 190). On April 22, 2008, Plaintiff had another follow-up visit with Dr. Dastgir. (Ex. F, p. 16). Dr. Dastgir noted that Plaintiff’s visual acuity was 20/200, and that Plaintiff seemed to be stable. (Ex. F, p. 16). Dr. Dastgir also removed the sutures from Plaintiff’s left eye, but the wound started to leak again. (Ex. F, p. 16). Dr. Dastgir then patched Plaintiff’s left eye with a pressure patch and recommended that Plaintiff return to the Parkside Eye Clinic the following morning to recheck his eye. (Ex. F, p. 16).
On April 22, 2008, Dr. Piper submitted a consultation request for Plaintiff to be seen by Dr. Dastgir to follow-up on Plaintiff’s left eye leakage after Dr. Dastgir removed the sutures from that eye. (Ex. F, p. 196). On April 23, 2008, Plaintiff was seen by Dr. Dastgir at Duane Waters Hospital who repaired the leaking wound in Plaintiff’s left eye lateral limbal area. (Ex. F, p. 189).
On April 24, 2008, Dr. Piper submitted another consultation request for Plaintiff to see Dr. Dastgir for a follow-up appointment on April 29, 2008. (Ex. F, p. 192). On April 25, 2008, the consultation request was authorized. (Ex. F, p. 192). On April 29, 2008, Plaintiff returned to see Dr. Dastgir as scheduled. (Ex. F, p. 187). Plaintiff’s visual acuity had improved to 20/80. (Ex. F, p. 187). Dr. Dastgir recommended that Plaintiff return to see him in four weeks. (Ex. F, p. 187).
undergone an appropriate preoperative ophthalmologic evaluation. (Ex. L). In the present case, Plaintiff received his second eye cataract when his condition met these criteria.
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On May 27, 2008, Plaintiff was again seen by Dr. Dastgir status post repair of a leaking wound following his left eye cataract extraction with lens implant. (Ex. F, p. 14). Plaintiff’s visual acuity in his left eye improved to 20/40 and Dr. Dastgir noted that the eye looked excellent. (Ex. F, p. 14).
On May 28, 2008, Dr. Piper noted that Plaintiff had a suture repair of a leaking wound in his left eye on 5/27/08 and that he was to return to ophthalmology in 2 weeks. (Ex. F, p. 108). Dr. Piper submitted a consultation request for Plaintiff to return to the ophthalmology clinic for a follow-up visit and suture removal. (Ex. F, p. 176). On June 2, 2008, the request was approved, and an appointment was scheduled for June 17, 2008. (Ex. F, p. 176). On June 17, 2008, Plaintiff had an ophthalmology consultation with Dr. Dastgir for a recheck and suture removal, as scheduled. (Ex. F, p. 183). Dr. Dastgir noted that after the suture removal, Plaintiff’s visual acuity improved to 20/25. (Ex. F, p. 183). Dr. Dastgir then recommended that Plaintiff receive glasses and return for a follow-up visit in three months. (Ex. F, p. 183). On June 26, 2008, Dr. Piper submitted a consultation request for Plaintiff to return to see Dr. Dastgir in 3 months. (Ex. F, p. 4). The request was approved on July 9, 2008. (Ex. F, p. 4).
On July 18, 2008, Plaintiff was seen by Mark J. Cook, O.D. for an optometric vision screening. (Ex. F, p. 362). Plaintiff’s visual acuity in both his right and left eyes was 20/25. (Ex. F, p. 362). B. Procedural History
On or about June 10, 2008, Plaintiff filed his First Amended Complaint pursuant to 42 U.S.C. § 1983. (Dkt. #38). Plaintiff alleges claims of deliberate indifference to Plaintiff’s his alleged serious medical need, a cataract in his left eye, in violation of the Eighth Amendment. (Dkt. #38). Plaintiff’s First Amended Complaint names 14 Defendants, including CMS, Dr.
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Hutchinson and Dr. Mathai. (Dkt. #38). With respect to CMS, Plaintiff alleges that their “utilization review unit approves or denies requests for specialty care, and in this case repeatedly denied Mr. Cobbs’ physicians’ requests for surgical specialty care.” (Dkt. #38, ¶13). With respect to Dr. Hutchinson, Plaintiff alleges that he “was the state medical director for CMS and a member of the MSAC.” (Dkt. #38, ¶11). With respect to Dr. Mathai, Plaintiff alleges that she was a member “of the MSAC when the committee denied Mr. Cobbs’ physicians’ requests for a second cataract surgery.” (Dkt. #38, ¶16).
Plaintiff alleges that in 2004, he had cataracts in both eyes and was scheduled for surgery. (Dkt. #38, ¶2). Plaintiff alleges that an ophthalmologist removed the cataract from his right eye and told him that he would have the second surgery in six weeks. (Dkt. #38, ¶3). Plaintiff then alleges that the second surgery was canceled and that the Defendants denied him the second surgery from October 26, 2004 until mid-April 2008. (Dkt. #38, ¶¶4, 5). Plaintiff alleges that the Defendants repeatedly refused to approve the second cataract surgery despite actual knowledge that he faced an increased risk of glaucoma without the surgery and that he was effectively blind in his left eye from 2006 until 2008. (Dkt. #38, ¶83). Plaintiff alleges that the Defendants failed to provide treatment, or failed to authorize treatment despite their knowledge of a substantial risk of serious harm, which constituted deliberate indifference to Plaintiff’s alleged serious medical needs and which was the proximate cause of physical injury to Plaintiff in the form of cataract-induced blindness in one eye, headaches, vision problems, and eye strain. (Dkt. #38, ¶¶84, 85). Plaintiff alleges that he suffered the following damages as a proximate result of the alleged acts and omissions of Defendants:
a thick, dense cataract on his left eye that effectively blinded him in that eye and forced him to wear an eye-patch; headaches, vision problems; eye strain, inability to work his previous job as a locksmith; an increased risk of glaucoma and an increased risk of
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complications from surgery when the cataract was finally removed; long-term loss of the use of his left eye; walking into walls and other people for lack of left-side and peripheral vision; loss of depth perception; anxiety; pain and suffering; humiliation and mental and emotional distress. (Dkt. #38, ¶89). Plaintiff seeks 1) a declaratory judgment that the Defendants’ alleged denial of medical care constituted deliberate indifference, 2) an injunction ordering the Defendants to provide all needed follow-up ophthalmological care to ensure that Plaintiff’s vision is fully restored,21 3) nominal, compensatory, and punitive damages, 4) interest, costs, and actual attorney’s fees, and 5) any other relief the court deems appropriate. (Dkt #38, p. 11).
STANDARD OF REVIEW According to Fed. R. Civ. P. 56, summary judgment must be entered if the moving party demonstrates that there is no genuine issue of material fact. “[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548 (1986). Rule 56(e)(2) provides that “[w]hen a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must—by affidavits or as otherwise provided in this rule—set out specific facts showing a genuine issue for trial. Thus, a party responding to a motion for summary judgment must put forth more than a “mere scintilla of evidence” in support of his position; he must put forth evidence on which the jury could
21 The moving Defendants consider this requested relief to be dismissed as the Court Ordered, and Plaintiff conceded, that the request for injunctive relief is moot as Plaintiff has been provided with cataract surgery and follow-up care for his left eye, and his vision is now restored. (Dkt #77, p. 7; Dkt #71, p.7).
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reasonably find in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505 (1986). In other words, “[t]he respondent cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must present affirmative evidence in order to defeat a properly supported motion for summary judgment.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989) (internal quotation marks omitted). “[W]here the record taken as a whole could not lead a rational trier of fact to find for the respondent, the motion should be granted.” Id. at 1480, quoting Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348 (1986).

ARGUMENTS

Argument I:

Defendants Should Be Granted Summary Judgment Because The Evidence Shows They Had Insufficient Personal Involvement In Deciding When Plaintiff Would Receive His Second Eye Cataract Surgery And They Were Not A Proximate Cause Of Plaintiff’s Alleged Injury.

In the present case, neither Dr. Hutchinson nor Dr. Mathai had any personal involvement

in Plaintiff’s medical care and treatment or any determinations concerning whether Plaintiff’s

recommended cataract surgery on his left eye would be non-authorized. There is no evidence

Dr. Mathai participated in any MSAC decision not to authorize Plaintiff’s cataract surgery.

While Dr. Hutchinson testified he sat on one or more of the respective MSAC meetings involved

in this matter, the evidence is clear that only the MDOC CMO had the final authority to provide

Plaintiff’s second eye cataract surgery based on criteria established by the MSAC. Under 42

U.S.C. § 1983, liability must be based upon a clear showing of active personal involvement.

Therefore, summary judgment should be entered in favor of Dr. Hutchinson and Dr. Mathai as a

matter of law.

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The two essential elements for a claim under 42 U.S.C. § 1983 are: (1) deprivation or violation of a federally protected right, privilege, or immunity, and (2) the fact that the action of the defendant in violating the federal protected right was taken under color of state law. Gomez v. Toledo, 446 U.S. 635 (1980); United of Omaha Life Ins. Co. v. Solomon, 960 F.2d 31, 33 (6th Cir. 1992). A plaintiff must make a clear showing that each named defendant was personally involved in the activity that forms the basis of the complaint. Salehpour v. Univ. of Tenn., 159 F.3d 199, 206-207 (1998). In other words, liability under 42 U.S.C. § 1983 must be based upon active unconstitutional behavior and cannot be based upon “a mere failure to act.” Shehee v. Luttrell, 199 F.3d 295, 300 (1998), citing Salehpour, 195 F.3d at 206. Therefore, it naturally follows that liability under 42 U.S.C. § 1983 must be based on more than the right to control employees. Shehee, 199 F.3d at 300. Furthermore, allegations based upon respondeat superior liability are foreclosed in § 1983 actions. For instance, in the case of Bellamy v. Bradley, the Sixth Circuit explained that in order to impose liability on supervisory personnel, a Plaintiff must show more than having brought offending conduct to the attention of supervisory officials:
In Hays v. Jefferson County, 668 F.2d 869 (6th Cir. 1982), we held that the § 1983 liability of supervisory personnel must be based on more than the right to control employees. Section 1983 liability will not be imposed solely upon the basis of respondeat superior. There must be a showing that the supervisor encouraged the specific incident of misconduct or in some other way directly participated in it. At a minimum, a § 1983 plaintiff must show that a supervisory official at least implicitly authorized, approved or knowingly acquiesced in the unconstitutional conduct of the offending subordinate. Hays, 668 F.2d at 872-74. 729 F.2d 416, 421 (6th Cir. 1984). Similarly, merely being aware of a prisoner’s complaint and failing to take corrective action is insufficient to impose liability on supervisory personnel under 42 U.S.C. § 1983. Poe v. Haydon, 853 F.2d 418, 429 (6th Cir. 1988). Instead, the plaintiff must demonstrate that the supervisor directly participated in the alleged wrongful conduct. Id. (“a
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supervisory official’s failure to control or train the offending individual is not actionable, unless the supervisor ‘either encouraged the specific incident of misconduct or in some other way directly participated in it.’”).
In the present case, neither Dr. Hutchinson, nor Dr. Mathai, had any personal involvement in the MSAC CMO’s decision not to authorized Plaintiff’s left eye cataract surgery during MSAC meetings on 6/22/04, 10/26/04, 4/25/06, and/or in 2008 when the surgery was approved.. They did not directly participate in the alleged wrongful conduct. There is no evidence that either Dr. Hutchinson or Dr. Mathai authorized, approved, knowingly acquiesced in, or in any way encouraged any alleged wrongful conduct with respect to Plaintiff. Neither Dr. Hutchinson nor Dr. Mathai were personally involved in the treatment and care of Plaintiff, with two exceptions: Dr. Hutchinson acted as the utilization review physician who did not authorized an ophthalmology consultation on 12/12/06 because it was previously denied by the MSAC and Plaintiff’s condition did not deteriorate as his best corrected visual acuity was 20/20 (Ex. F, pp. 354-355); and Dr. Mathai was the action Medical Director for CMS in Michigan on 3/14/2008 when the MSAC authorized Plaintiff’s left eye cataract extraction because his best corrected visual acuity decreased to 20/50 and Dr. Dastgir reported Plaintiff experienced binocular double vision (Ex. F, pp. 32-36). Dr. Hutchinson testified he sat on the MDOC MSAC, an administrative body that is responsible for, among other things, reviewing second appeals of offsite specialty consultation requests. However there is no evidence Dr. Mathai was on any of the MSAC panels that reviewed this case and non-authorized the second eye cataract surgery on 6/22/04, 10/26/04 and/or 4/25/06. While the CMS Medical Director typically sat on the MSAC, Dr. Mathai did not assume that position with CMS until September 2007. Although there is evidence Dr. Hutchinson sat on the MSAC, he had no vote in the ultimate decision to deny or
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authorize the requested off-site referrals, and there is absolutely no evidence that his participation on the MSAC controlled the decision by the CMO regarding whether Plaintiff would receive second eye cataract surgery prior to March 2008. (Ex. I, p. 43; Ex. C, pp. 60-61).
The ultimate authority to decide the outcome of an appeal to the MSAC rested solely with the Chief Medical Officer of the MDOC, which, in this case was Defendant Dr. Pramstaller (Ex. H, ¶E.26; Ex. C, pp. 60-61). It is not enough that Dr. Hutchinson and Dr. Mathai may have become aware of Plaintiff’s complaints as the Medical Director for CMS in Michigan and/or through participation with the MSAC. See Poe, 853 F.2d at 429. Plaintiff must put forth affirmative evidence demonstrating that Dr. Hutchinson and Dr. Mathai were personally involved in the events that form the basis of his Amended Complaint in order to survive summary judgment. Street, 886 F.2d at 1479; Salehpour, 159 F.3d at 206-207. In the present case, there is absolutely no evidence that either Dr. Hutchinson or Dr. Mathai had any personal involvement in the non-authorization of Plaintiff’s left eye cataract surgery by the MSAC CMO. Therefore, summary judgment should be entered in their favor as a matter of law.

Argument II:

Defendants Should Be Granted Summary Judgment Because Plaintiff’s Left Eye Cataract Was Not An Objectively Serious Medical Need And Defendants Did Not Believe That Plaintiff’s Left Eye Cataract Posed A Serious Risk Of Substantial Harm To Plaintiff.

Even if, assuming arguendo, the Court determines that CMS, Dr. Hutchinson and/or Dr.

Mathai were personally involved, there is no evidence that they violated Plaintiff’s Eighth

Amendment rights because his left eye cataract did not constitute a serious medical need during

the relevant times in question. Therefore, summary judgment should be entered in their favor as

a matter of law.

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It is well settled that the Eighth Amendment guarantee to be free from cruel and unusual punishment encompasses a prisoner’s right to medical care for serious medical needs. See Estelle v. Gamble, 429 U.S. 97 (1976). However, the Eighth Amendment prohibits mistreatment only where it equates to “punishment,” and, therefore, the courts have imposed liability upon prison officials, including health care providers, only where their actions are so deliberately indifferent to the serious medical needs of a prisoner that they constitute unnecessary and wanton infliction of pain. Perez v. Oakland County, 466 F.3d 416, 423 (6th Cir. 2006).
In order to state a § 1983 claim for a violation of a prisoner’s Eighth Amendment rights due to inadequate medical care, the prisoner must allege facts evidencing a deliberate indifference to serious medical needs. Wilson v. Seiter, 501 U.S. 294, 297 (1991). In order to succeed on such a claim, a prisoner must satisfy two elements, an objective one and a subjective one. Comstock v. McCrary, 273 F.3d 693, 702 (6th Cir. 2001). In other words, the prisoner must show that he had a serious medical need, and he must show that the defendant, being aware of that need, acted with deliberate indifference to it. Wilson, 501 U.S. at 300. In the present case, Plaintiff is unable to make a showing with respect to either element. A. There Is No Objectively Serious Medical Need
In order to successfully satisfy the objective element of a deliberate indifference claim, the prisoner-plaintiff must first demonstrate that from an objective standpoint, he had a “sufficiently serious” medical need. Farmer v. Brennan, 511 U.S. 825, 834 (1994). A medical need is “objectively serious” if it is “one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.” Blackmore v. Kalamazoo County, 390 F.3d 890, 895 (6th Cir. 2004). In other words, an objectively serious medical need requires immediate attention or is potentially
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life-threatening: “A ‘serious’ medical need exists if the failure to treat a prisoner’s condition could result in further significant injury or the ‘unnecessary and wanton infliction of pain.’” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992). However, in cases involving minor maladies or non-obvious complaints of a serious need for medical care, the Plaintiff must put forth verifying medical evidence in order to demonstrate that the alleged delay in treatment caused a serious medical injury. Blackmore, 390 F.3d at 898, citing Napier v. Madison County, 238 F.3d 739, 742 (6th Cir. 2001) (“an inmate who complains that delay in medical treatment rose to a constitutional violation must place verifying medical evidence in the record to establish the detrimental effect of the delay in medical treatment to succeed.”).
Upon information and belief, the Sixth Circuit Court of Appeals has never specifically addressed the issue of whether a cataract constitutes an objectively serious medical need. However, numerous other Federal Courts have addressed the issue under both categories discussed in Blackmore. Under the first strand of Blackmore, where the injury requires immediate medical attention or is potentially life-threatening, numerous Courts have found that a cataract does not qualify as an objectively serious medical need. 390 F.3d at 895. For example, in the case of Edwards v. Bradford, the court was faced with an action in which the prisoner plaintiff claimed that his Eighth Amendment rights were violated when he was denied cataract surgery. 1997 U.S. Dist. LEXIS 15089 (S.D. Ala. July 16, 1997) (Ex. M). There the evidence revealed that the plaintiff had an opaque cataract on his right eye that the plaintiff alleged caused him to become blind in that eye, caused him to have difficulty with the tasks of daily living, and may have forced him to withdraw from trade school, and that the plaintiff had excellent distance vision in his other eye and age-related decreased reading vision. Id. at *5 (Ex. M). After reviewing the evidence before it, the Court found that the plaintiff “failed to demonstrate that he
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has a serious medical need” because the “evidence demonstrates that [the plaintiff] has a cataract on his right eye, that he has been examined regularly by medical personnel for the cataract, and that the cataract has not, does not, and will not cause any damage or harm to that eye, the other eye, or to any other aspect of [the plaintiff’s] health.” Id. at *9-10 (Ex. M). Similarly, in the case of Hurt v. Mahon, the court found that the prisoner plaintiff in a deliberate indifference action regarding an alleged denial of cataract surgery failed to allege an objectively serious medical need because the cataract was not a painful condition, and dismissed the Plaintiff’s complaint with prejudice. 2009 U.S. Dist. LEXIS 279295, *7-9 (E.D. Va. Aug. 31, 2009) (Ex. N).
Furthermore, other federal courts faced with a plaintiff complaining of cataracts and an alleged denial of cataract removal surgery have found that a cataract does not constitute an objectively serious medical need under framework of the second leg of Blackmore. 390 F.3d 898. For instance, in the case of Williams v. Shelton, the Court was faced with facts, very similar to those at issue in the present case. 2008 U.S. Dist. LEXIS 54394 (D. Or. July 16, 2008) (Ex. O). There, the Plaintiff had bilateral cataracts, with the right eye being worse than the left. Id. at *8 (Ex. O). The right eye cataract was removed, and an ophthalmologist recommended that the left eye cataract be removed as well. Id. at *8-9 (Ex. O). The prison’s Therapeutic Level of Care Committee denied the cataract surgery on the plaintiff’s left eye for more than a year, however, eventually approved the surgery.22 Id. at *9 (Ex. O). The prisoner complained that the defendants were deliberately indifferent to his serious medical needs due to the delay in treatment, however, the Court entered summary judgment in favor of the defendants because there was no evidence that the delay in the surgery caused any harm, much less substantial harm. Id. at *8-9 (Ex. O); see also Leyser v. D’Amico, 182 Fed. Appx. 897 (9th Cir. 2006) (holding
22 It is uncertain whether the surgery ever occurred. Williams, 2008 U.S. Dist. LEXIS 54394, at *9 (Ex. O).
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that the District Court properly granted summary judgment in favor of the prison officials where the record contained no evidence that the denial by the prisoner’s utilization review panel of Plaintiff’s recommended cataract surgery led to further injury to the Plaintiff’s eye) (Ex. P); Dupuis v. Caskey, 2009 U.S. Dist. LEXIS 89002, *13-14 (S.D. Miss. Sept. 28, 2009) (finding that a cataract did not amount to an objectively serious medical need where a delay in cataract surgery resulted in no substantial harm to the inmate or his eye) (Ex. Q); Rylee v. Bureau of Prisons, 2009 U.S. Dist. LEXIS 24609 (D. S.C. Mar. 9, 2009) (finding no Eighth Amendment violation where the prison officials delayed cataract surgery but monitored the prisonerplaintiff’s condition, even though an optometrist recommended surgery) (Ex. R).
In the present case, it is clear that Plaintiff’s left eye cataract does not constitute a serious medical need under either category set forth by Blackmore. 390 F.3d at 898. First, it is clear that a cataract is not a medical condition that requires immediate or emergency medical treatment, such that a layperson would recognize the need for such treatment. In fact, in this case, each of Plaintiff’s treaters that requested an ophthalmology consultation request noted that the request was routine, as opposed to urgent, indicating that the requested surgery was not urgent or emergent. Furthermore, there is absolutely no evidence that Plaintiff’s left eye cataract posed any risk of serious harm or permanent damage to the health of his eye. There is also no evidence that Plaintiff’s cataract caused him to suffer any pain in his left eye. Rather, the evidence demonstrates that Plaintiff’s left eye cataract was naturally occurring, that it was regularly and adequately monitored by both optometrists and medical doctors, that Plaintiff’s treaters never believed that Plaintiff’s condition posed a threat of harm to his left eye, his right eye, or any other aspect of Plaintiff’s health, and that Plaintiff had near perfect vision in his right eye at all times during the relevant period. Therefore, it is clear that Plaintiff’s cataract does not
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qualify as an objectively serious medical need under the first Blackmore category. 390 F.3d at 895.
Furthermore, it is also clear that Plaintiff’s cataracts do not constitute an objectively serious medical need under the second category discussed in Blackmore. 390 F.3d at 898. There is absolutely no verifying medical evidence in this case that Plaintiff suffered any detrimental effect as a result of any alleged delay in medical treatment with respect to his left eye cataract. Rather, the evidence demonstrates that Plaintiff eventually underwent cataract removal surgery on his left eye once his best visual acuity decreased to 20/50 and Dr. Dastgir reported concern regarding Plaintiff’s complaint of binocular double vision in February 2008. (Ex. F, pp. 32-36) Thereafter, cataract surgery performed on the left eye in the same manner as his right eye cataract surgery in 2004, and Plaintiff had near perfect results, with an improved visual acuity in his left eye of 20/25. (Ex. F, p. 362). Plaintiff underwent cataract surgery at an appropriate time and had excellent results. The decision process of the MSAC was consistent with similar guidelines relied on by the Federal Bureau of Prisons (Ex. J), Aetna (Ex. K), and Medicare/Medicaid (Ex. L). There is absolutely no evidence that Plaintiff suffered any detrimental effect of any alleged delay in receiving the second eye cataract surgery. Therefore, it is also clear that Plaintiff’s left eye cataract did not constitute an objectively serious medical need under the second category contemplated by Blackmore. 290 F.3d at 898. B. There Was No Subjective Knowledge Of A Risk Of Harm That Was Deliberately
Disregarded In order to succeed on his claim of deliberate indifference, Plaintiff must also satisfy a subjective element. Comstock, 273 F.3d at 702. In order to satisfy this subjective component, a prisoner must demonstrate that the official being sued subjectively perceived facts from which to infer substantial risk to the prisoner, that he did in fact draw the inference, and that he then
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disregarded that risk. Farmer, 511 U.S. at 837. In other words, a plaintiff must show that “an official who actually knew of the serious medical need possessed a sufficiently culpable state of mind” Perez, 466 F.3d at 423. A prison official’s subjective state of mind must manifest “deliberateness tantamount to intent to punish.” Horn v. Madison County Fiscal Court, 22 F.3d 653, 660 (6th Cir. 1994). Thus, the Supreme Court has held that “an official’s failure to alleviate a significant risk that he should have perceived but did not, while no cause for condemnation, cannot . . . be condemned as the infliction of punishment.” Farmer, 511 U.S. at 838.
A complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim under the Eighth Amendment. Estelle, 429 at 105-106. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. Id. Thus, it is well settled that courts do not typically intervene in questions of medical judgment. Youngberg v. Romeo, 457 U.S. 307, 321 (1982). “Where a prisoner has received some medical attention and the dispute is over the adequacy of the treatment, federal courts are generally reluctant to second guess medical judgments and to constitutionalize claims which sound in state tort law.” Westlake v. Lucas, 537 F.2d 857, 860 n. 5 (6th Cir. 1976). Therefore, mere disagreement with medical judgment is insufficient to establish deliberate indifference. See Estelle, 429 U.S. at 105-107.
For example, in Rowe v. Rivera, the Court was faced with an INS detainee’s complaint that the defendants were deliberately indifferent to his serious medical needs. 2000 U.S. Dist. LEXIS 9097 (D. N.H. June 15, 2000) (Ex. S). The plaintiff was originally detained in INS custody in Merrimack County, New Hampshire, where he was diagnosed with a cataract in his right eye, a physician recommended that he undergo cataract surgery, and the surgery was authorized and scheduled. Id. at *3-6 (Ex. S). Before the surgery occurred, however, the
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plaintiff was transferred to the Hillsborough County Department of Corrections. Id. at *6 (Ex. S). Although the physician at Hillsborough was notified that the plaintiff was previously authorized and scheduled to have cataract surgery, the physician examined the plaintiff, noted that his vision in his left eye was 20/20, expressed that he could not examine the back of the plaintiff’s eye to determine whether there was retinal detachment, and recommended that the plaintiff be referred for surgery only after he was released from the jail. Id. at *7 (Ex. S). The physician then monitored the condition of the plaintiff’s eye, found that the eye was stable, and that there was no rush for the surgery. Id. at *17 (Ex. S). The plaintiff was then released prior to receiving the surgery. Id. (Ex. S). The court, in addressing the merits of Plaintiff’s claims held as follows:
Based on the evidence provided for summary judgment, it is undisputed that [plaintiff] received medical attention pertaining to his cataract condition, although he did not receive surgery to remove the cataract. The record shows a difference of opinion among the doctors that examined [plaintiff] as to the appropriate course of treating the cataract. Disagreement among medical professionals as to the proper course of treatment does not give rise to a constitutional violation. Id. at *19 (Ex. S). Similarly, in the case of Samonte v. Bauman, the Ninth Circuit Court of Appeals, held that the decision of a physician, who was the medical director of a correctional facility, to refuse to authorize cataract surgery after another physician previously determined that such surgery was an option amounted to a “difference of medical opinion,” which was insufficient by itself to raise a triable issue of deliberate indifference. 264 Fed. Appx. 634, *3-4 (9th Cir. 2007) (Ex. T). See also Edwards, 1997 U.S. Dist. LEXIS 15089, at *9-10 (finding that the plaintiff’s complaint that he was denied surgery to remove a cataract from his eye amounted to a disagreement with the medical judgment of his medical care provider, which failed to amount to deliberate indifference) (Ex. M); Espinosa v. Saladin, 2009 U.S. Dist. LEXIS 87199,
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at *6-7 (W.D. Mich. Sept. 23, 2009) (finding that the decision of a medical doctor to deny cataract surgery, which was recommended by an ophthalmologist, when Plaintiff maintained acceptable vision in his other eye and the medical doctor believed that cataract surgery was not medically necessary amounted a matter of medical judgment, not deliberate indifference) (Ex. U); Williams v. Miles, 2009 U.S. Dist. LEXIS 57833 (S.D. Va. July 7, 2009) (finding that Plaintiff’s complaints that he did not timely receive recommended cataract surgery amounted to differences of medical opinion that did not rise to the level of an Eighth Amendment violation where the plaintiff’s cataract was monitored on numerous occasions by an eye doctor) (Ex. V).
In the present action, Plaintiff cannot satisfy his burden with respect to the subjective element of his claims against either Dr. Hutchinson or Dr. Mathai. As argued above, neither Dr. Hutchinson nor Dr. Mathai had sufficient personal involvement in the present action, as the authority to deny or authorize Plaintiff’s cataract surgery rested solely with the MDOC CMO, Dr. Pramstaller. Even if, assuming arguendo, they were sufficiently personally involved, the MSAC CMO’s decision to deny or approve Plaintiff’s cataract surgery can not be attributed to them and was a question of medical judgment, not deliberate indifference. Plaintiff was not denied medical care throughout the period in question, and, in fact, was seen on numerous occasions by nurses, the MSP, various optometrists, and the ophthalmologist throughout the period in question, all of whom monitored the health of Plaintiff’s eyes. The decisions of the MSAC concerning whether to provide Plaintiff left eye cataract surgery were consistent with national standards set forth in the Federal Bureau of Prisons (Ex. J), Aetna (Ex. K), and Medicare/Medicaid (Ex. L).
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Plaintiff always maintained a visual acuity in his right eye of 20/20 to 20/30,23 his intraocular pressure was always within the normal range (which demonstrated that Plaintiff did not have glaucoma), Plaintiff did not have diabetes and therefore was not at any appreciable risk for retinopathy, and Plaintiff’s ocular health, as well as his overall health were continuously monitored through the period in question. While some of Plaintiff’s treaters believed that Plaintiff was a candidate to undergo left eye cataract removal surgery, other medical doctors involved in his care and treatment determined that it was not medically necessary. This disagreement between Plaintiff’s treaters does not amount to deliberate indifference. Rowe, 2000 U.S. Dist. LEXIS 9097, at *19 (Ex. S).
Once it was determined that the second cataract surgery was medically necessary (when Plaintiff’s visual acuity decreased to 20/50 and Dr. Dastgir was concerned about Plaintiff’s newly reported binocular double vision), the MSAC authorized the surgery, Plaintiff’s cataract was removed, and his best corrected visual acuity in both eyes improved to 20/25. While Plaintiff is apparently dissatisfied with having to live with a cataract on his left eye for a period of time, the determination of whether to authorize the second cataract surgery throughout the period in question was a matter of medical judgment. Plaintiff’s medical condition was constantly monitored and the determination of whether to authorize the cataract surgery was considered numerous times until it was eventually determined to be medically necessary. Plaintiff’s dissatisfaction amounts to a difference of medical opinion, which does not rise to the level of an Eighth Amendment violation. Therefore, as there is no genuine issue with respect to the subjective element of Plaintiff’s deliberate indifference claim, summary judgment should be entered in favor of Dr. Hutchinson and Dr. Mathai.
23 The only period of time in which Plaintiff’s best corrected visual acuity in his right eye deteriorated beyond 20/30 was between May 30, 2007 and February 6, 2008, when Plaintiff developed a secondary cataract on his right eye, which was corrected with laser surgery. (Ex. F, pp. 363, 364).
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Argument III:

Defendant CMS Should Be Granted Summary Judgment Because The Evidence Is Insufficient For Reasonable Persons To Conclude: That They Maintained An Unconstitutional Policy, Practice, Or Procedure; That Anyone Relied Upon Any Such Policy, Practice, Or Procedure; Or That The Execution Of Any Such Policy, Practice, Or Procedure Proximately Caused Any Harm Or Injury To Plaintiff.

Finally, Defendant CMS is entitled to summary judgment as a matter of law because

there is absolutely no evidence that CMS maintained an unconstitutional policy, practice, or

procedure that anyone relied upon thereby resulting in injury to Plaintiff.

While municipalities may be subject to suit under 42 U.S.C. § 1983, it is not enough for a

Plaintiff to merely allege liability on a theory of respondeat superior. Monell v. Dep’t of Social

Services of New York City, 436 U.S. 658, 691, 98 S.Ct. 2018 (1978). “Instead it is when

execution of a government’s policy . . . inflicts the injury that the government as an entity is

responsible under § 1983.” Id. at 694. In order to satisfy the requirements set forth in Monell, a

Plaintiff must identify a particular policy, connect the policy to the municipality, and

demonstrate that the particular constitutional violation alleged resulted from the execution of that policy. Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir. 1993). While Monell

involved a municipality, it is clear that the holding extends to private corporations, such as CMS,

as well. Street v. Corrections Corporation of America, 102 F.3d 810, 817-18 (6th Cir. 1996).

Based upon these standards, it is clear that Plaintiff cannot establish liability as to CMS.

First, it is abundantly clear that any attempt by Plaintiff to hold CMS vicariously liable

under a theory of respondeat superior must clearly fail as a matter of law. While CMS was

under contract with the State of Michigan to provide certain health care services to certain

inmates incarcerated within the MDOC system and employed/contracted with various healthcare

30

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providers to provide those services, CMS may not be held liable under 42 U.S.C. § 1983 for any of the actions of any of its employees or independent contractors.
Furthermore, there is absolutely no evidence of any policy, practice, or procedure connected to CMS in any way that was at issue in this case. The only criteria at issue concerning authorization for second eye cataract surgery belongs to the MDOC. In fact, Plaintiff’s Complaint is completely devoid of any such allegations and should be dismissed for failure to state a claim upon which relief can be granted against CMS as a result of such failure. There is also no evidence in this case that any particular person relied upon any such policy, practice, or procedure of CMS, or that any such reliance proximately caused any alleged injury suffered by Plaintiff. Therefore, Defendant CMS is entitled to summary judgment as a matter of law.
The only evidence of any policy, practice, or procedure that was at issue in any manner in this case is with respect to a set of criteria developed by and solely attributable to the MDOC. Dr. Pramstaller testified that all requests for second eye cataract removal surgeries had to go through the MSAC and the evidence demonstrates that Dr. Pramstaller, as the Chief Medical Officer of the MDOC was the only person on the MSAC with the authority to make a determination to authorize the requested surgery. (Ex. I, p, 79; Ex. H, ¶E.26; Ex. C, pp. 6061). According to Dr. Pramstaller’s criteria, a patient would be authorized to receive second eye cataract surgery if the patient had any of three conditions: 1) diabetic retinopathy; 2) posterior subcapsular glare; or 3) great discrepancy in vision. (Ex. I, pp. 54-58, 76). Removal of the cataract in the second eye could also be authorized if other circumstances made the surgery medically necessary, as authorization determinations were made on a case by case basis. (Ex. I, p. 77). In the present case, Plaintiff received his second eye cataract surgery in line with the
31

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criteria established by Dr. Pramstaller as soon as it became known that Plaintiff satisfied the criteria (i.e., had a documented discrepancy in vision). (See Ex. F, pp. 35-36, 31, 32).
While Dr. Pramstaller developed criteria as to whether a second eye cataract surgery should be authorized, there is absolutely no evidence that the execution of Dr. Pramstaller’s second eye cataract surgery criteria resulted in any harm or injury to Plaintiff. Plaintiff underwent cataract surgery on his left eye (the second eye) on April 15, 2008. (Ex. F, p. 190). Plaintiff’s left eye cataract was removed with the exact same procedure as his right eye cataract was removed four years earlier. After his surgery was completed and his eye healed from the surgery, Plaintiff’s best corrected visual acuity in both eyes improved to 20/25. (Ex. F, p. 362). The only evidence demonstrates that Plaintiff’s second eye cataract surgery was successful and that Plaintiff suffered absolutely no harm as a result of the surgery. Therefore, the criteria established by and relied upon by Dr. Pramstaller is not unconstitutional.
Furthermore, the MDOC’s criteria concerning cataract surgery is in line with and, in some cases, more accommodating than the criteria established by other organizations for purposes of determining whether second eye cataract surgery should be authorized. For instance, under the guidelines established by the Federal Bureau of Prisons (“FBOP”), a prisoner may only receive second eye cataract surgery if the prisoner has a documented best corrected visual acuity of 20/100, or under certain other exceptional circumstances, which would not apply to Plaintiff. (Ex. J). In the present case, Plaintiff received the second eye cataract surgery at an earlier stage than required under the FBOP guidelines, as his best corrected visual acuity was found to be 20/50 at the time in which he received his second eye cataract surgery. (See Ex. F, pp. 35-36).
The MDOC’s criteria were also functionally the same as that established by Aetna, one of the nation’s leading insurance companies. According to the policy established by Aetna,
32

1:07-cv-14644-TLL-CEB Doc # 103 Filed 12/01/09 Pg 44 of 46 Pg ID 737
cataract surgery is considered medically necessary for members with a best corrected visual acuity of 20/50 or worse if the member perceives that his ability to carry out daily functions (i.e., driving, watching television, occupation/vocational needs, etc.) is impaired, the member has a visual acuity of 20/50 or worse in the affected eye, and the member is educated about the risks and benefits of cataract surgery as well as alternatives, or if the member has some other condition, such as a lens-induced disease (e.g., certain types of glaucoma) or there is a need to visualize the retina in patients with conditions, such as diabetes. (Ex. K). Here, Plaintiff received his second eye cataract surgery at the same time that he would have been be eligible for the surgery under Aetna’s guidelines. (Ex. F, pp. 35-36).
Finally, the MDOC’s criteria were also functionally the same as the guidelines established by the Centers for Medicare and Medicaid Services applicable to Medicare/Medicaid eligible persons in Michigan. (Ex. L) According to the Medicare/Medicaid guidelines, cataract removal surgery is only medically necessary if the following criteria are met: 1) the patient has a decreased ability to carry out activities of daily living including reading, watching television, driving, or meeting occupational/vocational expectations; 2) the patient has a best corrected visual acuity of 20/50 or testing shows one of the following: a) consensual light testing decreases visual acuity by two lines or b) glare testing decreases visual acuity by two lines; 3) the patient has determined that he is no longer able to function adequately with current visual acuity; 4) other eye diseases (e.g., macular degeneration or diabetic retinopathy) have been ruled out as the primary cause of decreased visual acuity; 5) significant improvement in visual function can be expected as a result of cataract extraction; 6) the patient has been educated as to the risks and benefits of cataract surgery and the alternatives to surgery; and 7) the patient has undergone an appropriate preoperative ophthalmologic evaluation. (Ex. L). Furthermore, if the decision to
33

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perform bilateral cataract extraction surgery is made, the documentation must support the medical necessity for each procedure to be performed. (Ex. L). Under these guidelines, Plaintiff received cataract surgery on his left eye the first time that Plaintiff’s documented condition satisfied the Medicare/Medicaid guidelines.
There is absolutely no evidence in this case that CMS maintained any policy, practice, or procedure that was relied upon by anyone in providing medical care and treatment to Plaintiff and which resulted in any injury to Plaintiff. The only policy, practice, or procedure at issue was criteria established and relied upon solely by the MDOC, and the evidence demonstrates that the policy is consistent with recognized standards and execution of this policy did not proximately cause any injury or harm to Plaintiff. Furthermore, the criteria established by the MDOC are similar to or more accommodating than criteria established by other organizations dealing with both incarcerated and unincarcerated individuals. Defendant CMS is entitled to summary judgment as a matter of law.
RELIEF REQUESTED WHEREFORE, the Defendants, CORRECTIONAL MEDICAL SERVICES, INC., CRAIG HUTCHINSON, M.D., and BENCY MATHAI, M.D., pray that this Honorable Court shall grant their Motion For Summary Judgment Pursuant To Fed. R. Civ. P. 56, enter summary judgment in their favor as a matter of law, dismiss Plaintiff’s claims against them in their entirety with prejudice, and tax all reasonable costs and attorney fees against Plaintiff where permitted.
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Dated: December 1, 2009

Respectfully submitted,
s/Brian J. Richtarcik The Juip Richtarcik Law Firm Attorneys for Defendants, Correctional Medical Services, Inc., Craig Hutchinson, M.D., and Bency Mathai, M.D., only The Penobscot Building 645 Griswold Street, Suite 3850 Detroit, MI 48226 (313) 859-5900 brichtarcik@me.com P49390

PROOF OF SERVICE I hereby certify that on December 1, 2009, I presented the foregoing paper to the Clerk of the Court for filing and uploading to the ECF system, which will send notification of such filing to the attorneys of record listed herein and I
hereby certify that I have mailed by US Postal Service the document to the involved non participants.
s/Brian J. Richtarcik The Juip Richtarcik Law Firm Attorneys for Defendants, Correctional Medical Services, Inc., Craig Hutchinson, M.D., and Bency Mathai, M.D., only The Penobscot Building 645 Griswold Street, Suite 3850 Detroit, MI 48226 (313) 859-5900 brichtarcik@me.com P49390

35

 
 1:07-cv-14644-TLL-CEB Doc # 104 Filed 12/01/09 Pg 1 of 14 Pg ID 955

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

DALLAS COBBS, #164276,

Plaintiff, v
GEORGE PRAMSTALLER, et al.,

NO. 2:07-cv-14644
HON. ANNA DIGGS TAYLOR MAG. CHARLES E. BINDER

Defendants.

Paul D. Reingold (P27594) Attorney for Plaintiff
University of Michigan 801 Monroe Street 363 Legal Research Bldg Ann Arbor, MI 48109 734-763-4319

Randall A. Juip (P58538) Brian J. Richtarcik (P49390) The JuipRichtarcik Law Firm
Attys for CMS Defts The Penobscot Building 645 Griswold, Suite 3850 Detroit, Michigan 48226

Clifton B. Schneider (P70582) Assistant Attorney General
Attorney for Defendants Naylor, Clark, Neighbors, Pandya, and Pramstaller Corrections Division P.O. Box 30217 Lansing, MI 48909 (517) 335-7021

DEFENDANTS PRAMSTALLER, CLARK, NAYLOR, PANDYA, AND NEIGHBORS'S MOTION FOR SUMMARY JUDGMENT

Defendants Pramstaller, Clark, Naylor, Pandya, and Neighbors, by counsel, move under

Fed R Civ P 56(b) for summary judgment. The defendants ask that the Court grant this motion

in their favor as to the claims against them and dismiss this suit. This motion is based on Fed R

Civ P 56(b) and the other grounds set forth in the defendants’ accompanying brief, as well as the

reasons set forth in the CMS defendants' motion for summary judgment (D/E #103).

Concurrence in this motion was sought by email to plaintiff's counsel.

CLIFTON Corrections

Respectfully submitted,
Michael A. Cox Attorney General
s/ Clifton Schneider_____________ SCHNEIDER (P70582)
Assistant Attorney General Division
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1:07-cv-14644-TLL-CEB Doc # 104 Filed 12/01/09 Pg 2 of 14 Pg ID 956

PO Lansing, Em (517) Date: December 1, 2009

[P70582]

Box 30217 MI 48909
ail: schneiderC1@michigan.gov 335-7021

2

1:07-cv-14644-TLL-CEB Doc # 104 Filed 12/01/09 Pg 3 of 14 Pg ID 957

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

DALLAS COBBS, #164276,

Plaintiff, v
GEORGE PRAMSTALLER, et al.,

NO. 2:07-cv-14644
HON. ANNA DIGGS TAYLOR MAG. CHARLES E. BINDER

Defendants.

Paul D. Reingold (P27594) Attorney for Plaintiff
University of Michigan 801 Monroe Street 363 Legal Research Bldg Ann Arbor, MI 48109 734-763-4319

Randall A. Juip (P58538) Brian J. Richtarcik (P49390) The JuipRichtarcik Law Firm
Attys for CMS Defts The Penobscot Building 645 Griswold, Suite 3850 Detroit, Michigan 48226

Clifton B. Schneider (P70582) Assistant Attorney General
Attorney for Defendants Naylor, Clark, Neighbors, Pandya, and Pramstaller Corrections Division P.O. Box 30217 Lansing, MI 48909 (517) 335-7021

BRIEF IN SUPPORT OF DEFENDANTS PRAMSTALLER, CLARK, NAYLOR, PANDYA, AND NEIGHBORS'S MOTION FOR SUMMARY JUDGMENT

CLIFTON
Corrections PO Lansing, Em (517) Date: December 1, 2009

[P70582]

Michael A. Cox Attorney General
s/ Clifton Schneider_____________ SCHNEIDER (P70582)
Assistant Attorney General Division
Box 30217 MI 48909
ail: schneiderC1@michigan.gov 335-7021

1:07-cv-14644-TLL-CEB Doc # 104 Filed 12/01/09 Pg 4 of 14 Pg ID 958

CONCISE STATEMENT OF ISSUES PRESENTED

I.

The plaintiff alleges deliberate indifference based on failure to provide him with

cataract surgery in his left eye. He has not placed verifying medical evidence into

the record showing a detrimental effect of the delay in treatment. The defendants

made a reasoned medical decision not to provide the surgery because there

determined that there was no risk to the plaintiff. Has the plaintiff failed to show an

Eighth Amendment violation?

Defendants' answer: Plaintiff's answer:

Yes unknown

II.

The plaintiff has shown only a disagreement over the course of care provided.

There is no clearly established law holding that failure to provide a cataract surgery

is a constitutional violation where the patient has good vision in the other eye. The

defendants acted reasonably and did not violate the plaintiff's clearly established

constitutional rights. Are defendants Pramstaller, Clark, Naylor, Pandya, and

Neighbors entitled to qualified immunity?

Defendants' answer: Plaintiff's answer:

Yes unknown

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STANDARD OF REVIEW A defendant is entitled to judgment as a matter of law, with or without supporting affidavits, in the absence of a genuine issue of material fact. FRCP 56(b). Once the moving party discharges his burden of demonstrating the absence of a genuine issue of material fact, the burden then shifts to the nonmoving party, who may not rest on his pleadings but, instead, must present specific facts showing a genuine triable issue. FRCP 56(e). The nonmoving party is not entitled to a trial merely on the basis of allegations, but must come forward with some significant probative evidence to support its claim. Celotex Corp v. Catrett, 477 U.S. at 324. "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson v. Liberty Lobby, Inc, 477 U.S. 242, 252 (1986). The party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient "simply [to] show that there is some metaphysical doubt as to the material facts." Matsushita Elec Indus Co v. Zenith Radio Corp, 475 U.S. 574, 586 (1986). Rather, Rule 56(e) "requires the nonmoving party to go beyond the pleadings" and present some type of evidentiary material in support of its position. Celotex, 477 U.S. at 324; see also Harris v. Gen Motors Corp, 201 F.3d 800, 802 (6th Cir. 2000). Ultimately, the Court must determine whether the evidence "is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52; see also Atchley v. RK Co., 224 F.3d 537, 539 (6th Cir. 2000).
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1:07-cv-14644-TLL-CEB Doc # 104 Filed 12/01/09 Pg 6 of 14 Pg ID 960
CONTROLLING OR MOST APPROPRIATE AUTHORITY Prison officials are forbidden from "unnecessarily and wantonly inflicting" pain on an inmate by acting in "deliberate indifference" toward the inmate's serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976). A prison official cannot be found liable under the Eighth Amendment unless the official “knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). "[A]n inmate who complains that delay in medical treatment rose to a constitutional violation must place verifying medical evidence in the record to establish the detrimental effect of the delay in medical treatment to succeed." Napier v. Madison County, 238 F.3d 739, 742 (6th Cir. 2001). Mere disagreement with medical staff's prescriptions does not state a claim for violation of the Eighth Amendment. See Estelle v. Gamble, 429 U.S. at 104-06. The defense of qualified immunity is available to a state actor unless three criteria are met: a constitutional violation has occurred; the violated right was a clearly established right of which a reasonable person would have known; and the plaintiff has alleged sufficient facts, and supported the allegations by sufficient evidence, to indicate that what the official allegedly did was objectively unreasonable. Saucier v. Katz, 533 U.S. 194, 201-02 (2001); Higgason v. Stephens, 288 F.3d 868, 876-77 (6th Cir. 2002); Williams v. Mehra, 186 F3d 685, 690 (6th Cir. 1999).
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STATEMENT OF THE FACTS This is a prisoner civil rights action. The plaintiff alleges that his Eighth Amendment rights were violated when medical staff disagreed over whether a second cataract surgery was appropriate. Because of the extensive nature of the facts of this case, and because the facts have already been succinctly laid out, the defendants incorporate and adopt by the reference the Statement of Facts from the CMS defendants' brief and lay out only a summary here. [D/E #103, pages 1-16]. The MDOC defendants, Pramstaller, Clark, Naylor, Pandya, and Neighbors, are sued due to their membership in the MDOC's Medical Services Advisory Committee (MSAC). The plaintiff in this case was referred for cataract surgery on his left eye after having successful cataract surgery on his right eye. The request was denied by CMS, and the appeal was heard by the MSAC on multiple occasions. The MSAC upheld the denial each time from 2004 until February 2008. The surgery was eventually approved by the MSAC due to a decrease in the plaintiff's right-eye vision as well as complaints of binocular double vision. [See D/E #103, pages 11-13]. Prior to that, the members of the MSAC upheld the surgery denials based on criteria based on their medical judgment in conjunction with the assistance of ophthalmologists. [D/E #103, page 6, n 11].
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1:07-cv-14644-TLL-CEB Doc # 104 Filed 12/01/09 Pg 8 of 14 Pg ID 962

ARGUMENT

I.

A second-eye cataract surgery is not medically necessary, and there was no

substantial risk of serious harm in delaying the surgery.

The defendants adopt and incorporate by reference the arguments made by the CMS

defendants in section II of their motion for summary judgment. [D/E #103, pages 20-29].

Prison officials are forbidden from "unnecessarily and wantonly inflicting" pain on an inmate by acting in "deliberate indifference" toward the inmate's serious medical needs.1 Mere

disagreement with medical staff's prescriptions, however, does not state a claim for violation of constitutional rights.2 A prison official cannot be found liable under the Eighth Amendment

unless the official “knows of and disregards an excessive risk to inmate health or safety; the

official must both be aware of facts from which the inference could be drawn that a substantial risk of harm exists, and he must also draw the inference.”3

To reach the level of a constitutional violation, a deprivation "must result in the denial of 'the minimal civilized measure of life's necessities.'"4 The Eighth Amendment is only concerned

with "deprivations of essential food, medical care, or sanitation" or "other conditions intolerable for prison confinement."5 "[N]ot every unpleasant experience a prisoner might endure while

incarcerated constitutes cruel and unusual punishment within the meaning of the Eighth Amendment."6

"[A]n inmate who complains that delay in medical treatment rose to a constitutional

violation must place verifying medical evidence in the record to establish the detrimental effect

1 Estelle v. Gamble, 429 U.S. 97, 104 (1976). 2 See Estelle, 429 U.S. at 104-06. 3 Farmer, 511 U.S. at 837. 4 Rhodes v. Chapman, 452 U.S. 337, 347 (1981); see also Wilson v. Yaklich, 148 F.3d 596, 60001 (6th Cir. 1998). 5 Rhodes, 452 U.S. at 348. 6 Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir. 1987).
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of the delay in medical treatment to succeed."7 "[T]he 'verifying medical evidence' requirement is relevant to those claims involving minor maladies or non-obvious complaints of a serious need for medical care."8
In Napier, the prisoner did not complain about missing treatment; he told the prison guards that missing a treatment was "no big deal"; he missed over forty treatment sessions of his own accord; and he neither sought immediate medical attention upon his release nor even attended his next scheduled treatment.9 The facts in Blackmore differed in that the plaintiff there "did not suffer from a long-term and well monitored illness, but rather exhibited obvious manifestations of pain and injury. [He] complained of 'sharp' and 'severe' stomach pains for an extended period of time."10 The Court held that the plaintiff's "classic signs of appendicitis" made the need for care so obvious that he did not need to submit verifying medical evidence to avoid summary judgment.11
Here, the plaintiff's eye health was well monitored by several doctors and nurses over the relevant timeframe. Absent certain conditions, a cataract poses at most minimal risk of harm to a patient; the conditions identified by Dr. Pramstaller were diabetic retinopathy, glare, and a great discrepancy in vision, but each case is evaluated individually. [D/E #103, page 6, n 11]. The plaintiff was seen by healthcare professionals continually throughout the relevant time period. Dr. Pramstaller also directed that the intraocular pressure in the plaintiff's eyes should be monitored to rule out glaucoma. The MSAC members determined in their medical judgment that there was no significant risk to the plaintiff in denying or delaying the surgery. Once the
7 Blackmore v. Kalamazoo County, 390 F.3d 890, 898 (6th Cir. 2004) (quoting Napier v. Madison County, 238 F.3d 739, 742 (6th Cir. 2001)). 8 Blackmore, 390 F.3d at 898. 9 Napier, 238 F.3d at 741. 10 Blackmore, 390 F.3d at 899. 11 Blackmore, 390 F.3d at 900.
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plaintiff eventually presented with one of the conditions, a great discrepancy in vision (double vision), defined by Dr. Pramstaller as a condition affecting the visual cortex, the surgery was authorized. [Exhibit I to D/E #103, pages 57-61, 71-74]. The plaintiff received the second-eye surgery earlier than or when he would have received it under Federal Bureau of Prisons, Aetna, and Medicare standards. [D/E #103, page 12, n 20]. The plaintiff did not have an objectively serious medical condition requiring treatment, and the defendants did not have subjective knowledge of any such condition because in their medical judgment, there was at most a minimal risk in denying the surgery because the plaintiff never presented with risk factors.
This case involves no more than a disagreement over the prescribed course of care. The defendants relied on their medical judgment in determining standards to govern the provision of second-eye cataract surgery. Other doctors' disagreement with those standards or insistence on surgery without consideration of any standards does not transform the defendants' judgment into a constitutional violation. The defendants are entitled to summary judgment because there was no serious medical need and because none of the defendants knew of or disregarded any excessive risk – to the contrary, the plaintiff was continually monitored and provided with care.

II.

The defendants are entitled to qualified immunity.

Officials or employees of the Michigan Department of Corrections who are sued in their

individual capacities “are shielded 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.”12 The Sixth Circuit applies a three-part test to determine whether a

government official is entitled to the defense of qualified immunity: (1) whether a constitutional

violation has occurred; (2) whether the right that was violated was a clearly established right of

12 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Dietrich v. Burrows, 167 F.3d 1007, 1012 (6th Cir. 1999); Noble v. Schmitt, 87 F.3d 157, 160 (6th Cir. 1996).
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which a reasonable person would have known; and (3) whether the plaintiff has alleged sufficient
facts, and supported the allegations by sufficient evidence, to indicate that what the official
allegedly did was objectively unreasonable in light of the clearly established constitutional rights.13 While the defendants bear the initial burden of presenting facts that, if true, would
entitle them to immunity, the ultimate burden of proof falls on the plaintiff to show that the
defendants violated a right so clearly established that any official in the defendants’ positions
would have clearly understood that he was under an affirmative duty to refrain from such conduct.14
The court in Lavado v. Keohane gives the test for finding a clearly established constitutional right:15
[T]o find a clearly established constitutional right, a district court must find binding precedent by the Supreme Court, its court of appeals or itself. In an extraordinary case, it may be possible for the decisions of other courts to clearly establish a principle of law. For the decisions of other courts to provide such "clearly established law," these decisions must both point unmistakably to the unconstitutionality of the conduct complained of and be so clearly foreshadowed by applicable direct authority as to leave no doubt in the mind of a reasonable officer that his conduct, if challenged on constitutional grounds, would be found wanting.
There is no clearly established law holding that denial of a cataract surgery is a
constitutional violation. To the contrary, courts have routinely denied such claims. In Samonte
v. Bauman, the court held that a doctor's "refusal to authorize cataract surgery after another
doctor determined that such surgery was an option was a 'difference of medical opinion,' insufficient by itself to raise a triable issue of deliberate indifference."16 Likewise, in Stevenson
13 Saucier v. Katz, 533 U.S. 194, 201-02 (2001); Higgason v. Stephens, 288 F.3d 868, 876-77 (6th Cir. 2002); Williams v. Mehra, 186 F.3d 685, 690 (6th Cir. 1999). 14 Noble, 87 F.3d at 161. 15 Lavado v. Keohane, 992 F.2d 601, 606-07 (6th Cir. 1993). 16 Samonte v. Bauman, 264 Fed. Appx. 634, 636 (9th Cir. 2008) (unpublished) (Exhibit T to D/E #103).
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v. Pramstaller, the plaintiff alleged "that he has suffered from psychological symptoms, including fear, anger, anxiety, and emotional suffering, as well as, an increased risk of injury due to the resulting lack of peripheral vision, and depth perception" due to failure to "the [d]efendants' failure to treat a hyper cataract in his left eye."17 There, Judge Denise Page Hood found that neither the subjective nor objective components of a deliberate indifference claim were met because the "panel of physicians that form the MSAC reached a consensus, based on documentation accompanying the request for cataract surgery, that the surgery was not immediately necessary."18
The plaintiff here is unable to show anything more than a disagreement over the course of care prescribed to him. Furthermore, he has not demonstrated, through medical evidence, that he suffered any harm as a result of any delay in removal of the left-eye cataract. This case is similar to Stevenson in that the MSAC reached a consensus that the surgery was not immediately necessary. The plaintiff's constitutional rights were not violated. Furthermore, the defendants have found no caselaw indicating that delay in providing cataract surgery could amount to deliberate indifference. The plaintiff's clearly established constitutional rights have not been violated, and the defendants are entitled to qualified immunity.
CONCLUSION AND RELIEF SOUGHT The plaintiff cannot show an Eighth Amendment violation because he can show nothing more than disagreement over the prescribed course of care. Neither the objective nor subjective prongs of a deliberate indifference claim are met here. The plaintiff has not submitted verifying medical evidence to show that a delay in treatment could have caused him any harm or that he
17 Stevenson v. Pramstaller, et al, ED case no. 07-cv-14040, 2009 U.S. Dist. LEXIS 25495 at *2 (E.D. Mich. 2009) (attached as Exhibit A). 18 Stevenson v. Pramstaller, et al, 2009 U.S. Dist. LEXIS 25495 at *16.
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suffered any harm. And no Sixth Circuit authority could be found for the proposition that denial of cataract surgery based on medical judgment could equate to deliberate indifference.
Defendants Pramstaller, Clark, Naylor, Pandya, and Neighbors respectfully request that the Court grant their motion for summary judgment and dismiss this action.

Respectfully submitted,
Michael A. Cox Attorney General

CLIFTON
Corrections PO Lansing, Em (517) Date: December 1, 2009

[P70582]

s/ Clifton Schneider_____________ SCHNEIDER (P70582)
Assistant Attorney General Division
Box 30217 MI 48909
ail: schneiderC1@michigan.gov 335-7021

PROOF OF SERVICE
I hereby certify that on December 1, 2009, the foregoing paper was presented and uploaded to the United States District Court ECF System, which will send notification of such filing to the attorneys of record listed herein, and I hereby certify that a copy of this same document(s) was mailed by US Postal Service to any involved non-ECF participant.
/s/Clifton B. Schneider (P70582) Assistant Attorney General Attorney for Defendants

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

DALLAS COBBS, #164276,

Plaintiff, v
GEORGE PRAMSTALLER, et al.,

NO. 2:07-cv-14644
HON. ANNA DIGGS TAYLOR MAG. CHARLES E. BINDER

Defendants.

INDEX OF EXHIBITS

Exhibit A

Stevenson v. Pramstaller, et al, ED case no. 07-cv-14040, 2009 U.S. Dist. LEXIS 25495 at *2 (E.D. Mich. 2009)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN ______________________________________________________________________________

DALLAS COBBS, #164276,
Plaintiff, vs.

File No. 07-CV-14644 Hon. Anna Diggs Taylor

GEORGE J. PRAMSTALLER, et al.,

Mag. Judge Charles E. Binder

Defendants. ______________________________________________________________________________

Paul D. Reingold (P27594) Michigan Clinical Law Program Attorney for Plaintiff 363 Legal Research Building 801 Monroe Street Ann Arbor, MI 48109-1215 (734) 763-4319

Brian J. Richtarcik (P49390) The Juip-Richtarcik Law Firm Attorney for CMS Defendants The Penobscot Building 645 Griswold, Suite 3850 Detroit, MI 48226 (313) 859-5900

Clifton Schneider (P70582) Michigan Department of Attorney General Attorney for MDOC Defendants Corrections Division P.O. Box 30217 Lansing, MI 48909 (517) 335-7021

______________________________________________________________________________

PLAINTIFF’S BRIEF IN RESPONSE TO MDOC AND CMS DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT

Dated: December 23, 2009

MICHIGAN CLINICAL LAW PROGRAM By: Paul D. Reingold pdr@umich.edu – P27594
Brad Smyer & Ondrej Staviscak Diaz Student Attorneys on the Brief

1:07-cv-14644-TLL-CEB Doc # 106 Filed 12/23/09 Pg 2 of 53 Pg ID 980
TABLE OF CONTENTS
Statement of Issues Presented………………………………………………………………… iv The Legal Standard and Controlling Authorities……………………………………………... v Table of Authorities…………………………………………………………………………... vi Introduction and Proceedings to Date..………………………………………………………. 1 STATEMENTS OF FACTS………………………………………………………………….. 3
A. Background Information and the Off-Site Review Process………………………... 3 B. The Facts of Mr. Cobbs‟ Case………………………………………………………. 5 ARGUMENT…………………………………………………………………………………... 17 I. MR. COBBS HAS MADE OUT AN EIGHTH AMENDMENT CLAIM……………. 17
A. The Record Demonstrates that Mr. Cobbs‟ Condition Constituted an Objectively Serious Medical Need…………………………………………………. 17
B. Mr. Cobbs Would Have Been Promptly Treated under the Private and Public Insurance Guidelines Cited by the CMS Defendants………………….. 26
C. Mr. Cobbs‟ Claim Also Satisfies the Subjective Component of an Eighth Amendment Claim…………………………………………………………. 30
II. THE SUPERVISORY DEFENDANTS PARTICIPATED IN THE DECISIONS TO DENY MR. COBBS‟ SURGERY, AND WERE RESPONSIBLE FOR THE MDOC/CMS CUSTOMS AND POLICIES ON CATARACT SURGERY………….. 33 A. The Supervisory Defendants Participated in the Decisions to Deny Mr. Cobbs‟ Surgery………………………………………………………………… 33 B. CMS, Inc., and the Supervisory Defendants Are Liable for Adopting, Implementing, or Applying the MDOC/CMS Policies that Resulted in the Failure to Treat………………………………………………………………. 36
III. THE MDOC DEFENDANTS ARE NOT ENTITLED TO QUALIFIED IMMUNITY……………………………………………………………... 41
Conclusion……………………………………………………………………………………… 44
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1:07-cv-14644-TLL-CEB Doc # 106 Filed 12/23/09 Pg 3 of 53 Pg ID 981 Proof of Service………………………………………………………………………………… 45 Index of Exhibits……………………………………………………………………………….. 46
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STATEMENT OF ISSUES PRESENTED
1. Did the MDOC and CMS defendants‟ denial of Mr. Cobbs‟ left-eye cataract surgery from 2004 to 2008 constitute deliberate indifference to his serious medical needs in violation of his Eighth Amendment rights? The plaintiff says yes.
2. Did the senior MDOC and CMS defendants participate directly in denying treatment? The plaintiff says yes.
3. Were the customs and policies of the MDOC and CMS, Inc., as applied by senior MDOC and CMS officials, a proximate cause of the denial of treatment? The plaintiff says yes.
4. Was the law clearly established in 2004 that failure to treat an obvious serious medical need is a violation of the Eighth Amendment, such that MDOC officials are not entitled to qualified immunity? The plaintiff says yes.
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THE LEGAL STANDARD AND CONTROLLING AUTHORITIES
For summary judgment to be granted, the defendants must show that there are no genuine issues of material fact and that they are entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Horton v. Potter, 369 F.3d 906, 909 (6th Cir. 2004). The evidence and all reasonable inferences must be construed in the light most favorable to the plaintiff. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Any direct evidence offered by the plaintiff in response to a summary judgment motion must be accepted as true. Muhammad v. Close, 379 F.3d 413, 416 (6th Cir. 2004).
To prove an Eighth Amendment claim, the plaintiff must show that the defendants were deliberately indifferent to his serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104 (1976); City of Canton v. Harris, 489 U.S. 378, 392 (1989). A serious medical need is a medical need “that has been diagnosed by a physician as mandating treatment.” Perez v. Oakland County, 466 F.3d 416, 423 (6th Cir. 2006).
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TABLE OF AUTHORITIES
Cases Anderson v. Creighton, 483 U.S. 635 (1987) ………………………………………………42……. Blackmore v. Kalamazoo County, 390 F.3d 416 (6th Cir. 2004) …………………………1…8,…pa…ssim Boretti v. Wiscomb, 930 F.2d 1150 (6th Cir. 1991) ………………………………………2…4 ….. Campbell v. Fry, No. 89-6578, 1990 WL 15601 (4th Cir. Feb. 9, 1990) …………………2…3 …. Castillo v. Dashiell, No. Civ S-04-0737, 2007 WL 609858 (E.D. Cal. Feb. 27, 2007) ……43….. Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ……………………………………………v…….. City of Canton v. Harris, 489 U.S. 378 (1989)……………………………………………1…7…… Edwards v. Bradford, 1997 U.S. Dist. LEXIS 15089 (D.S. Ala. July 16, 1997)……………25……. Estelle v. Gamble, 429 U.S. 97 (1976) ……………………………………………………1…7,…25.. Farmer v. Brennan, 511 U.S. 825 (1994) …………………………………………………1…8,…31.. Grinter v. Knight, 532 F.3d 567 (6th Cir. Ky. 2008) ………………………………………34…….. Hafer v. Melo, 502 U.S. 21 (1991) …………………………………………………………34…….. Hicks v. Frey, 992 F.2d 1450, 1458 (6th Cir. 1993) ………………………………………3…6 …… Higgason v. Stephens, 288 F.3d 868 (6th Cir. 2002) ………………………………………41…, 4…2 .. Horton v. Potter, 369 F.3d 906 (6th Cir. 2004) ……………………………………………v……. Hurt v. Mahon, 2009 U.S. Dist. LEXIS 279295 (E.D. Va. Aug. 31, 2009) ………………2…5,…37.. Johnson v. Karnes, 398 F.3d 868 (6th Cir. 2005) …………………………………………3…6 …… Leyster v. D’Amico, 182 F.3d Appx. 697 (9th Cir. 2006) …………………………………2…6 …. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986) ……………v …… Miller v. King, 384 F.3d 1248, vac. on other grounds, 449 F.3d 1149 (11th Cir. 2006)……33, 36 Muhammad v. Close, 379 F.3d 413 (6th Cir. 2004) ………………………………………v………
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1:07-cv-14644-TLL-CEB Doc # 106 Filed 12/23/09 Pg 7 of 53 Pg ID 985 Napier v. Madison County, 238 F.3d 739 (6th Cir. 2001) …………………………………24…, 3…1 . Parrish v. Johnson, 800 F.2d 600 (6th Cir. 1986) …………………………………………24……. Perez v. Oakland County, 466 F.3d 416 (6th Cir. 2006) …………………………………1…8…… Rylee v. Bureau of Prisons, 2009 U.S. Dist. LEXIS 24609 (D.S.C. Mar. 9, 2009) ………2…5 …… Samonte v. Bauman, 264 Fed. Appx. 634 (9th Cir. 2008) …………………………………42……. Scicluna v. Wells, 345 F.3d 441 (6th Cir. 2003) ……………………………………………42…… Shehee v. Luttrell, 199 F.3d 295 (6th Cir. 1999) ……………………………………………33…, 3…6 Stevenson v. Pramstaller, 2009 U.S. Dist. LEXIS 25495 (E.D. Mich. Mar. 24, 2009)……4…2 ……………………… Street v. Corr. Corp. of Am., 102 F.3d 810 (6th Cir. 1996) ………………………………3…6 …... Taghipour v. Chastine, 43 F.3d 669 (5th Cir. 1994) ………………………………………4…3 ….. Thomas v. City of Chattanooga, 398 F.3d 426 (6th Cir. 2005) ……………………………3…7 …... Titlow v. CMS, No. 07-cv-12083, 2008 WL 907450 (E.D. Mich., Mar. 31, 2008)…………32……………………… Williams v. Shelton, 2008 U.S. Dist. LEXIS 54394 (D. Or. July 16, 2008) ………………2…5,…37...
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INTRODUCTION AND PROCEEDINGS TO DATE
Plaintiff Dallas Cobbs filed this § 1983 lawsuit in pro per in October 2007, after failing to get cataract surgery for almost four years. He named as defendants Michigan Department of Corrections (MDOC) chief medical officer Dr. George Pramstaller, the Bureau of Health Care Services, the Medical Services Advisory Committee (MSAC – which makes the final decision to grant or deny “specialty care” that cannot be provided internally by medical staff), and various unknown John Doe defendants. Mr. Cobbs sought damages and injunctive relief for the defendants‟ collective failure to approve cataract surgery that his treating doctors, as well as all consulting eye specialists, had unanimously been requesting since the spring of 2004.
Instead of reviewing the case and conceding that the denials were in error, defendant Pramstaller filed a motion to dismiss in January 2008. The motion stated that Pramstaller had nothing to do with the decision to deny the surgery and could not be held liable on a theory of respondeat superior. See R. 12, Defendant‟s Motion for Summary Judgment. Mr. Cobbs‟ responded by filing a motion to stay Pramstaller‟s summary judgment motion so that he could get limited discovery to prepare a response brief and identify the other members of the MSAC who had denied his doctors‟ surgery requests. See R. 17, Motion for Stay. Mr. Cobbs attached documents showing that Pramstaller and the MSAC had reviewed his doctors‟ repeated requests for the cataract surgery, and had denied them. Id.
In February 2008 the undersigned counsel agreed to represent Mr. Cobbs, and so notified the defendants‟ counsel. Shortly thereafter, Mr. Cobbs was informed that his cataract surgery had been approved. In April 2008, following a status conference, the Court issued a series of orders. Defendant Pramstaller‟s pending motion to dismiss was withdrawn, and motions filed by the pro se plaintiff were also withdrawn. See R. 29 and 34. On June 4, 2008, the Court granted
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leave for Mr. Cobbs to file an amended complaint and to conduct limited discovery. See R. 37 Order.
In June 2008, now by the undersigned counsel, Mr. Cobbs filed his amended complaint. See R. 38. He dropped the Bureau of Health Care Services and the MSAC as separately named defendants, while adding the individual MSAC members (who had since been identified by the defendants, see R. 34, Request for Identification of John Does), as well as the contract medical provider Correctional Medical Services, Inc., (CMS) and its state medical director Dr. Craig Hutchinson.1
After limited discovery, in September 2008 the MDOC defendants filed a motion for summary judgment, arguing that Mr. Cobbs had failed to make out a constitutional claim, and that the state defendants were shielded from liability by the doctrine of qualified immunity. R. 66, MDOC Defs‟ Motion for Summary Judgment. In December 2008, Magistrate Judge Charles E. Binder entered a report and recommendation granting the motion as to injunctive relief (because by then Mr. Cobbs‟ cataract had finally been removed), but denying the motion in all other respects. See R. 77, Report & Recommendation. Following objections, in February 2009 the Court adopted the R&R. See R. 82, Order Adopting R&R. Full discovery then commenced.
In May 2009, the CMS defendants filed a motion to dismiss on the grounds that Mr. Cobbs had failed to exhaust his administrative remedies and/or had failed to follow procedural requirements of the prison grievance process. See R. 86, CMS Defs‟ Motion to Dismiss. After full briefing, in July 2009, the Magistrate Judge issued a second R&R denying the motion. See R. 94, R&R. Following another round of objections, in September 2009 the Court adopted the 1 At all relevant times, CMS contracted with the MDOC to provide medical care to Michigan prisoners, including primary care within the prisons and specialty care on the outside. Mr. Cobbs‟ counsel suspected, but as of the filing of the amended complaint could not yet know or prove, that MDOC/CMS customs and policies (as to cataracts) were at least in part to blame for the repeated denials of his cataract surgery.
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R&R. See R. 97, Order Adopting R&R. In the meantime, Mr. Cobbs voluntarily dismissed his claims against four individual defendants (two psychiatrists and two dentists), once it was established that they did not participate in the Medical Services Advisory Committee‟s denials of the requests for eye surgery. See R. 90 and 105, Stipulations and Orders to Dismiss.
In November 2009 the parties completed discovery. As will be shown below, the plaintiff submits that, based on the document discovery, as well as the depositions of Pramstaller and Hutchinson, the primary care physician Dr. Paul Piper, the optometrist Dr. Robert McGrath, an interview with the opthmalogist Dr. Ghulam Dastgir, and the deposition of CMS utilization review nurse Brenda Jones, Mr. Cobb‟s case is now far stronger than it was when the Court denied the defendants‟ first motion for summary judgment.
STATEMENT OF FACTS
A. Background Information and the Off-Site Review Process At all relevant times Dallas Cobbs was in the custody of the MDOC at the Ryan Correctional Facility in Detroit. See Updated Cobbs Declaration (12/09), Exh. A, at 1; and R. 38, First Amended Complaint, at ¶ 6. In 2004, Mr. Cobbs began having significant vision problems due to cataracts in both eyes.2 See Medical Records, Exh. C, at 3. It is undisputed that the only treatment for cataracts is surgical removal. Such treatment is virtually automatic in the U.S. with the patient‟s consent, absent a medical reason that would counsel against the surgery. See Decl. of MDOC Contract Ophthalmologist (Ghulam Dastgir), Exh. M, at 1; Decl. of Pl‟s Expert (Ophthalmologist Alan Sugar), Exh. N, at 2-3. It is also undisputed that all times Mr. Cobbs wanted the surgery, and that there was no medical reason that would counsel against the surgery.
2 For all Michigan prisoners, “Health care…shall be available…consistent with contemporary standards of medical practice in the community, as set forth in PD 03.04.100 „Health Services.‟ Health care shall be available, accessible and organized for delivery in a humane, cost-effective and efficient manner.” See Policy Directive 03.03.130, Exh. B, at 2, ¶ G (emphasis added).
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Because cataract surgery is a kind of care that MDOC/CMS doctors do not perform themselves, a request for “specialty care” must be submitted to CMS by the prisoner-patient‟s treating doctor (or medical staff) for such care. See Pramstaller Dep., Exh. H, at 18-22; Hutchinson Dep., Exh. I, at 14-16; OP 03.04.100 (Review and Appeals Process for Off-Site Health), Exh. B, at 1416; Jones Dep, Exh. J, at 19-22.
The MDOC/CMS off-site specialty care review process works as follows. The treating physician (or a consulting specialist) typically must submit a form to CMS‟s utilization review (UR) department, requesting any specialty care that is not provided on site by MDOC/CMS doctors. Id. Pursuant to CMS‟s own policies, UR nurses can approve certain treatments but can never deny treatment. See Jones Dep., Exh. J, at 31-32, 40, 71 Denials are made by a CMS supervisory doctor in the UR department, or by the CMS state medical director.3 Id., also at 27.
The UR department has three choices: it can approve the request; it can deny the request; or it can “pend” the request for more information. Id.; OP 03.04.100, Exh. B, at 14-15. In making the decision whether or not to approve specialty care, CMS relies in part on proprietary commercial UR services (InterQual and Millman & Robertson) that provide standardized utilization practices via computer access. Jones Dep., Exh. J, at 18-19, 24-27. For almost any specialty care, the UR nurses access these services, or rely on books that serve much the same purpose, and recommend approval or denial based in part on them. Id.
If the request is approved, the off-site referral will be scheduled and the patient will be called out and transported to the provider on the appointed day. The CMS request and response forms become part of the prisoner‟s medical record. Piper Dep., Exh. G, at 14-15.
If the request is “pended,” the requesting medical provider will submit whatever new or
3 Defendant Hutchinson was the CMS state medical director from 2004 to 2007, and defendant Mathai was the CMS state medical director from 2007 to 2008. Hutchinson Dep., Exh. I, at 10, 13.
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additional information the UR department asks for, at which point the UR office will make a decision. See OP 03.04.100, Exh. B, at 14-16.
If the request is denied, the requesting medical provider can appeal the decision. The first-level appeal (done by filling out another part of the request form) goes to CMS‟s UR medical director/supervisor (typically the same person who denied the case initially). Id. If that doctor denies the request again, the requesting medical provider can submit a second appeal to the MDOC‟s regional medical officer. That person makes sure the file is complete, and then forwards the request to the chief medical officer (Pramstaller), who brings it to the Medical Services Advisory Committee at its next monthly meeting. Id.
Contrary to what the CMS defendants state, see CMS Defs‟ Brief, at 4, the MSAC then decides the appeal by consensus. If consensus cannot be reached, then (and only then) does the chief medical officer decide the case himself. See Operating Procedure 03.04.100, Exh. B, at 16, ¶¶ 26-27; Pramstaller Dep., Exh. H, at 42-43.
B. The Facts of Mr. Cobbs’ Case The plaintiff mostly agrees with the CMS defendants‟ account of his medical history from 2004 to 2008. It will be re-summarized here, however, because the CMS defendants paraphrase many reports that are more telling when they are quoted, and the defendants characterize certain acts or omissions inaccurately. In March 2004, Mr. Cobbs‟ saw a CMS contract optometrist to address his worsening vision caused by the cataracts in both his eyes. The optometrist, Dr. Michael McGrath, recommended that he be seen by an ophthalmologist. CMS denied the request because Mr. Cobbs‟ vision in his left eye (the eye with the less-advanced cataract) was 20/40. Medical Records, Exh. C, at 5. Mr. Cobbs‟ primary care physician (Dr. Paul Piper) appealed the CMS denial. Id. CMS
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again denied the request for the same reason: “Not authorized ophthalmology consult for cataracts. Criteria for cataract removal not met since vision [left eye] = 20/40.” Id.; see also Care Enhance Records, Exh. L, at 1.
Dr. Piper appealed again, noting that Mr. Cobbs was legally blind in his right eye and had 20/40 vision in his left eye. “I think cataract surgery is indicated if it will correct vision.” Medical Records, Exh. C, at 6. The appeal went to the MDOC regional medical director, and then to the MSAC.
On June 22, 2004, the MSAC issued a memorandum approving the ophthalmology consult and the cataract surgery for the more advanced right-eye cataract.4 The MSAC‟s decision is hard to explain, because at this point the vision in Mr. Cobbs‟s left eye was still 20/40. That is, nothing had changed from the earlier decisions, which had denied the ophthalmology consult because the vision in Mr. Cobbs‟ good left eye was 20/40. Thus, if the standard to be applied was that first-eye cataract surgery would not be approved until the better eye was 20/50 or worse, see Hutchinson Dep., Exh. I, at 27, then the right-eye cataract surgery should have been denied by the MSAC on that basis.
In fact, the MSAC did not approve the cataract surgery based on any new medical reason, but rather because of Mr. Cobbs‟ “lifer status.” Medical Record, Exh. C, at 8; Piper Dep., Exh. G, at 51-53. The implication of the decision is that since Mr. Cobbs was not going to be released any time soon, and because he was legally blind in his right eye, he might as well have the surgery, even though he did not meet the MDOC/CMS criteria for first-eye surgery because his best corrected vision in his less-affected left eye was still better than 20/50.
4 The plaintiff agrees with the CMS defendants that for this approval it appears that the MSAC and/or CMS‟s UR people mistakenly approved tests and treatment for Mr. Cobbs‟ left eye when they meant to approve tests and treatment for his right eye, which may have caused the ophthalmologist to believe that preliminary approval for both eyes had been granted. See CMS Defs‟ Brief, at 5, notes 8 and 9.
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On July 27, 2004, Mr. Cobbs had a consultation with ophthalmologist Dr. Ghulam Dastgir. Id., Exh. C, at 11-14. By that time the examination showed a “hypermature nuclear and posterior sub-capsular cataract in the right eye” and “a dense posterior sub-capsular cataract” in the left eye. By July Mr. Cobbs‟ best corrected vision in his right eye had regressed to “hand motion to finger counting” at six inches, while the left eye was “down to 20/70 ... with glasses, but with glare it dropped down to 20/400.” Id., at 13; Piper Dep., Exh. G, at 55, 60-61 (emphasis added). Dr. Dastgir also noted that Mr. Cobbs was unable to see out of his right eye and “has double vision with [left eye] – 6 months – it is getting worse.” “[Patient] going blind.” Medical Records, 7/27/09, Exh. C at 12, 13 (emphasis added); Piper Dep., Exh. G, at 57-58 (interpreting Dr. Dastgir‟s difficult handwriting). Dr. Dastgir recommended cataract surgery and lens implants in both eyes, the right eye first and the left to follow “a few weeks later,” and scheduled Mr. Cobbs for scans of both eyes in preparation for the surgery. Id., Exh. G, 59-60; Medical Records, Exh. C, at 13-14. Dr. Piper sent a follow-up authorization request for Dr. Dastgir‟s “plan of management” to CMS, which approved the cataract removal surgery and lens implant for the left eye.5 Medical Records, Exh. C, at 10, 15.
On August 23, 2004, Dr. Dastgir performed scans on Mr. Cobbs‟ left and right eyes, and had him sign a “consent for cataract extraction with lens implant[s] in both eyes.” Id., at 15, 18. Dr. Dastgir noted that Mr. Cobbs would undergo both operations “in the very near future.” Id. On August 30, 2004, Dr. Dastgir performed the cataract surgery on Mr. Cobbs‟ right eye at the Blake Woods Surgery Center. Exh. C, at 19. Dr. Dastgir saw Mr. Cobbs the following day and told him that the left-eye surgery would be scheduled shortly and that Mr. Cobbs would return for removal of his left-eye cataract according to the original treatment plan. Id., at 19, 22, 24.
5 See note 4: the CMS UR approvals were apparently for the wrong eye.
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That same day, Dr. Piper similarly noted on Mr. Cobbs‟ medical chart that he was to have cataract surgery on his left eye. Id. at 25; Piper Dep., Exh. G, at 65-66.
On September 7, 2004, Mr. Cobbs was told that the surgery on his left eye needed to be re-scheduled because it had been inadvertently set for the Labor Day holiday.6 See Grievances, Exh. D, at 1. When six weeks passed without Mr. Cobbs hearing anything about the surgery, he sent an inquiry to health services. See Health Care Requests (Kites), Exh. E, at 1. On September 15, 2004, Mr. Cobbs saw the optometrist Dr. McGrath to get new glasses following his right-eye surgery. Dr. McGrath wrote in his progress notes, “Patient needs surgery for cataract [left eye] – F/U [follow-up] for cataract surgery.” Medical Records, Exh. C, at 26. On October 7, 2004, Dr. Piper examined Mr. Cobbs at Ryan, and sent an ophthalmology request to CMS, citing Dr. Dastgir‟s treatment plan that Mr. Cobbs was to have the second cataract operation. Medical Records, Exh. C, at 27.
At that point (October 7, 2004), based on records that had already been submitted to CMS, the CMS UR office knew that the vision in Mr. Cobbs‟ left eye had deteriorated as of July to at least 20/70 without glare, to 20/400 with glare, that he had had double vision in his left eye as of July for six months that was getting worse, and that he had a dense posterior sub-capsular cataract. See Medical Records, Dastgir Exam and Opth. Notes of 7/27/04, Exh. C, at 12-13.
CMS “pended” the request and then forwarded it directly to the MSAC. Dr. Pramstaller testified that the MSAC would approve second cataract surgeries if the patient suffered from subcapsular glare or if the patient had a great discrepancy in vision. See Pramstaller Dep., Exh. H, at 54-58. Despite Dr. McGrath‟s request for surgery, Dr. Piper‟s request for surgery, Dr. Dastgir‟s treatment plan for surgery, and the undisputed fact that Mr. Cobbs suffered from sub-cap6 Mr. Cobbs‟ memory has differed as to exactly when the left eye surgery was to occur, but plainly it was to be relatively soon after the first surgery was completed on August 31, 2004. Compare Exh. A, Cobbs Updated Declaration, ¶ 6 (about six weeks later) and Grievances, Exh. D, at 1 (about one week later).
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sular glare and had a huge disparity in vision and had suffered from double vision in his left eye for six months as of July 2007, the MSAC denied the left-eye surgery by consensus on October 26, 2004. See Pramstaller Memo, Medical Records, Exh. C, at 29.7 The denial form said only that the denial was issued because “criteria not met.” Id. Boilerplate language on the form said, “should other information become available, the MSAC will be happy to re-evaluate.” Id.
On November 29, 2004, Mr. Cobbs sent another health care request (kite) asking if his surgery had been scheduled. Kites, Exh. E, at 1. To this point no one had told Mr. Cobbs that his left-eye surgery had been denied, nor had he been given a reason for the ongoing delay. When he learned that the MSAC had denied his surgery, he filed a grievance, citing Dr. Dastgir‟s treatment plan and asking for an explanation or clarification. Grievances, Exh. D, at 1. Mr. Cobbs‟ grievance was rejected and he exhausted the two appeals available to him. His first appeal noted that he needed the surgery because the vision in his “left eye is getting worse by the day.” Id., Exh. D, at 3. The appeal was denied, citing the MSAC disapproval of 10/26/04, and stating that any “further (left) eye concerns should be directed to [Ryan medical staff] to determine if and when another surgery request will be made.” Id., Exh. D, at 4. His second appeal noted that his treating doctors had already said that he needed removal of his left-eye cataract. Id. The final denial acknowledged that the MSAC had previously approved the left eye surgery, but had rescinded that approval and that Mr. Cobbs could pay for the surgery himself if he disagreed. Id., Exh. D, at 5.
Mr. Cobbs‟ vision in his left eye continued to fail. As a result of the surgery on his right eye and the worsening vision in his left eye, Mr. Cobbs requested new glasses in March 2005. Kites, Exh. E, at 2. He had an optometry exam at Ryan on May 10, 2005. Medical Records,
7 The participating members of the MSAC included defendants Borgerding, Clark, Hutchinson, Naylor, and Pramstaller. See Identification of John Does, Exh. K.
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Exh. C, at 31-32. Dr. Connolly, the examining optometrist, noted that Mr. Cobbs had a posterior sub-capsular cataract and nuclear sclerosis in his left eye. Id.; McGrath Dep., Exh. F, at 38. Dr. Connolly told Mr. Cobbs that he could not get a new prescription until the cataract was removed because glasses would not improve the vision in his left eye. Kites, Exh. E, at 3; Medical Records, Exh. C, at 32; McGrath Dep., Exh. F, at 38-39 (interpreting Dr. Connolly‟s handwritten notes). Dr. Connolly requested a specialist‟s evaluation (a prerequisite for surgery). Medical Records, Exh. C, at 31. Dr. Connolly‟s request was denied by CMS based on the denial the MSAC had issued eight months earlier (in October 2004), despite the fact that Mr. Cobbs‟ vision was “getting worse by the day.” Id., Exh. C, at 33; Grievances, Exh. D, at 3.
After submitting two more kites without getting a responsive answer, Mr. Cobbs filed another grievance on June 24, 2005, explaining his dilemma: he couldn‟t see without glasses, but he couldn‟t get glasses until he had the surgery. Grievances, Exh. D, at 6. He got a grievance response on July 14 stating that the surgery was not approved and that the optometrist he saw in May had recommended that he be re-evaluated in 6-12 months. Id. In fact, Dr. Connolly had recommended and requested “cataract eval and possible surgery.” Medical Records, Exh. C, at 32. Mr. Cobbs‟ vision continued to worsen. On November 2, 2005 – 18 months after his lefteye cataract surgery was first requested – Mr. Cobbs again asked to see a doctor stating: “The vision in my left eye has gotten so bad that it has thrown off my balance and keeps me dizzy.” Kites, Exh. E, at 4.
In December 2005, Mr. Cobbs had another optometry exam performed at Ryan. Medical Records, Exh. C, at 34. Dr. McGrath evaluated Mr. Cobbs and also concluded that “cataract surgery [was] needed.” Id. (emphasis added). Dr. McGrath‟s report shows that Mr. Cobbs‟ best corrected visual acuity in his left eye had deteriorated to 20/600 in just seven months. Id; Mc-
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Grath Dep, Exh. F, at 49-51. By now the cataract had become so thick that it was impossible for the doctor to view the retina in the left eye.8 Id., Exh. C, at 34; McGrath Dep., Exh. F, at 50. Dr. McGrath also reported serious side effects of Mr. Cobbs‟ rapidly decreasing vision: “patient has trouble w/ depth perception; … patient has also walked into objects on left side.” Medical Record, Exh. C, at 34.
Again, CMS denied the doctor‟s request on December 28, 2005, based on the 10/26/04 MSAC denial and the fact that Mr. Cobbs “had a good response to surgery on his [right] eye.” Id., Exh. C, at 35; McGrath Dep., Exh. F, at 64. Dr. McGrath appealed the CMS denial on January 1, 2006, explaining that he could not screen for secondary glaucoma (because the cataract prevented him from seeing into the eye) and requesting much more frequent follow-up visits if CMS again denied the cataract surgery. Medical Records, Exh. C, at 35; McGrath Dep., Exh. F, at 65-66. (The bi-monthly and monthly follow-up visits that Dr. McGrath requested to check for glaucoma were never scheduled.)
On March 1, 2006, Mr. Cobbs had yet another eye exam at Ryan. Medical Records, Exh. C, at 36. Dr. McGrath‟s notes once again indicate that Mr. Cobbs needed left eye surgery. Id., at 37. Dr. McGrath‟s request said, “Please approve cataract surgery [left eye]. Patient has dense cataract [left eye] with possible [secondary] glaucoma a risk factor; [left eye] no lens helps, 20/600.” Id. CMS again denied Dr. McGrath‟s request on March 15, 2006, on the basis that the “MDOC/MSAC already reviewed this case [in October 2004] and have not authorized.” Id., Exh. C, at 38. Dr. McGrath appealed on March 29 to the MSAC, stating, “surgery advised to prevent secondary glaucoma … no view of left retina possible to check eye health.” Id. (emphasis in original). On April 3, 2006, CMS sent the case to the MSAC with the note “already not
8 Dr. McGrath‟s report read: “Please evaluate dense cataract [left eye]. … Cataract surgery needed. No view of retina in left eye.” Exh. C, at 37 (emphasis in original).
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authorized x 2 @ CMS.” Id., Exh. C, at 39. Dr. McGrath wrote on the appeal form, “patient needs cataract surgery – hypermature cataract surgery is more complicated and there is risk of [secondary] glaucoma – if denied monthly [follow-up] advised.” Id., Exh. C, at 39.
Nevertheless, on April 25, 2006, the MSAC “upheld non-approval for ophthalmology consult for cataract [left eye].” Id., Exh. C, at 40 (emphasis in original, entry signed by Dr. Pramstaller).9 The MSAC denial memo said only “upheld non-approval.” The comments section read: “monitor closely for increase in interocular [sic] pressure and resubmit if pressure increases.” Intraocular pressure is used to monitor for glaucoma. Pramstaller Dep., Exh. H, at 57. It had nothing to do with Mr. Cobbs‟ failed vision in his left eye or the resulting side effects.
From the end of 2004 to the spring of 2006, as the cataract in his left eye worsened, Mr. Cobbs suffered from double vision, headaches, eye strain, and glare. He bumped into things and people. He had trouble reading and watching TV or doing anything that required concentration. Cobbs‟ Updated Decl., Exh. A, at 8-9. By the spring or early summer of 2006, Mr. Cobbs‟ vision was bad enough in his left eye that he started wearing an eye patch all the time. Id. On May, 27, 2006, Mr. Cobbs sent a health care request stating, “I can no longer see out of the [left] eye.” Kites, Exh. E, at 5. He sent another kite on June 21, 2006, saying:
I sent a kite to see the doctor on 5/27/06 but I haven‟t been on call. I don‟t want to see the optometrist because I can‟t get any results to my problem seeing him. The lack of sight in my left eye is a protracted problem and something has to be done about it. Id., Exh. E, at 5. He filed yet another kite on July 16, 2006, saying, “I have sent kite after kite to health care concerning the vision in my left eye. I need immediate attention because I can no longer see out of that eye.” Id., Exh. E, at 7. Mr. Cobbs was again seen by Dr. Piper on July 27, 2006. Dr. Piper noted that Mr. Cobbs
9 This time the participating MSAC members included defendants Clark, Ivens, Hutchinson, Mathai, Pandya, Pramstaller, and Samy. See Identification of John Does, Exh. K.
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“has [history] of losing sight in left eye” and advised CMS to take note of the significant deterioration of Mr. Cobbs‟ vision since 2004. Medical Records, Exh. C, at 42. But Dr. Piper‟s recommendation that Mr. Cobbs be revaluated by an ophthalmologist was again denied based on the MSAC‟s April 25, 2006, decision not to authorize an ophthalmology consult. Id., Exh. C, at 43.
Later that summer, Mr. Cobbs‟ father tried to intervene by writing directly to Dr. Pramstaller. Although we don‟t have a copy of that letter, we have a copy of the response, dated September 13, 2006. The administrator of the Bureau of Health Care Services wrote:
Your recent correspondence to Dr. Pramstaller regarding your son Dallas Cobbs #164276 has been referred to me for response. You have asked for Dr. Pramstaller‟s intervention to approve and schedule surgery for [your son‟s] cataract …. Review of your son‟s medical records indicates that he is being monitored closely. Multiple physicians have reviewed his case and all agree with the current treatment plan. Kites and Letters, Exh. E, at 8. The letter shows that again in the late summer of 2006, Dr. Pramstaller and senior MDOC health officials were fully aware of Mr. Cobbs‟ case. Moreover, what they reported to Mr. Cobbs‟ father was false. In fact, every doctor, optometrist, and ophthalmologist who had examined Mr. Cobbs disagreed with the defendants‟ “current treatment plan” – which was to deny surgery (and to deny even an evaluation by an ophthalmologist). Mr. Cobbs saw an optometrist again (this time Dr. Cook) on August 25, 2006. Dr. Cook recommended that Mr. Cobbs be referred for cataract surgery on his left eye; Dr. Cook crossed out the box labeled “routine” and marked the referral as “urgent.” Exh. C, at 44. Doctor Cook noted that the left eye was “opaque” and that Mr. Cobbs suffered from “extreme photophopia10 – subjective and objectively” and “[wore] patch on left eye to function.” Id. (emphasis added). Dr. Cook also noted that the “[left eye] cataract is approaching hypermaturity – condition may pre-
10 “Photophopia” is an “aversion to light.” Hutchinson Dep., Exh. I, at 109.
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clude use of phacoemulsification.”11 Dr. Cook‟s request for cataract surgery was denied with the simple note, “See MSAC response,” apparently referring to the MSAC decision of April 25, 2006. Id.
On October 26, 2006, Mr. Cobbs sent another kite to health care: “The loss of sight in my left eye is causing me considerable strain on my right eye and is further causing me blurred vision in my right eye, headaches, dizziness, and a loss of balance.” Kites, Exh. E, at 9.
Mr. Cobbs saw the optometrist again on December 13, 2006. Dr. McGrath again filed a request for specialty care, stating, “Please evaluate & order cataract surgery [left eye]. Patient has dense cataract [left eye]. I cannot view retina and patient has developed anemia. Eye health of left eye cannot be evaluated.” Id., Exh. C, at 46. In March 2007, CMS denied the request for surgery “based on 20/20 vision in the right eye.” Id., Exh. C, at 49.
As noted, in addition to his examining doctors‟ requests, Mr. Cobbs himself sought help repeatedly by filing numerous kites, grievances, and appeals. Amended Complaint, ¶¶ 18-86; Cobbs Updated Decl., Exh. A, ¶¶ 9-60. His 2005 requests documented his worsening eyesight. Kites, Exh. D, at 2, 3. He repeatedly conveyed his fear that if he did not have the surgery soon, he would lose all vision in his left eye. Grievances, Exh. D, at 7, 8, and 10. In 2005 and 2006, his requests described the side effects he was suffering, including headaches, dizziness, blurry or double vision in his right eye, loss of balance, loss of depth perception, and loss of peripheral vision. Kites, Exh. D, at 4, 6. As a result of these side effects, Mr. Cobbs had difficulty doing daily functions like reading, watching TV, and going up and down stairs. Decl., Exh. A, at 8-9. Mr. Cobbs‟ requests increased in urgency as the side effects got worse.
11 “Phacoemulsification” refers to the common technique used in cataract surgery in which the clouded lens is broken up or liquefied using a tiny ultrasonic tool and a suction device, which makes the surgery safer. Eye Surgery Education Council: http://www.eyesurgeryeducation.com/Phacoemulsification.html
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On April 21, 2007, Mr. Cobbs sent another kite to health care, stating: “I‟m experiencing double vision in my right eye. Also, I can hardly focus in my right eye.” Kites, Exh. E, at 10. He had another eye exam on May 30, 2007. Med. Records, Exh. C, at 50-51. Dr. McGrath confirmed what Mr. Cobbs had been saying: the best corrected vision in his right eye had dropped to 20/50, which Dr. McGrath attributed in part to a small “secondary cataract” that Dr. McGrath thought was forming in the right eye. Id.; McGrath Dep., Exh. F, at 126. Dr. McGrath also noted that Mr. Cobbs complained of double vision in his right eye for the last two months. Id., Exh. C, at 51. For the second time, an optometrist made an “urgent” referral to ophthalmology. Id., Exh. C, at 50.
Despite the urgency of the request, the “dense cataract” in Mr. Cobbs‟ left eye, the drop in the best corrected vision in his good right eye to 20/50, the double vision in his good right eye, and the possibility of the formation of a secondary cataract in his good right eye, the request was again denied by CMS. 12 Exh. C, at 52; Care Enhance Forms, Exh. L, at 21.
In the meantime, Mr. Cobbs‟ pain and discomfort worsened. Mr. Cobbs sent another kite to health care on September 28, 2007, saying, “The cataract on my left eye continues to strain my right eye and is still causing me severe headaches, dizziness, and blurred vision in my right eye.” Kites, Exh. E, at 11. He saw a nurse on October 5, 2007, who documented the same complaints. Medical Records, Exh. C, at 53. On October 29, 2007, he sent another kite to health care, noting that “I saw [the nurse] on [10/5/07] because I was experiencing severe headaches and dizziness.
12 This denial is telling, because if the MDOC/CMS standard was that second cataract surgery would be approved when the vision in the good eye was worse than 20/40, see Hutchinson Dep. Exh. I, at 27, then this request should have been instantly granted. UR nurse Brenda Jones said that no request for cataract surgery was reviewed without consulting the accompanying optometrist‟s notes. Exh. J, at 40, 71. Here the optometrist‟s report plainly showed that the vision in the good right eye had fallen to 20/50, and that Mr. Cobbs had double vision in his right eye. Exh. C, at 50-51. Yet CMS routinely denied the request again in the spring of 2007, just as it had every time before!
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I was not called out to see Dr. Piper as scheduled and I am still experiencing severe headaches
and dizziness. I haven‟t been given anything for pain….” Kites, Exh. E, at 12.
On October 30, 2007, Mr. Cobbs filed this lawsuit, in pro per. In October and November
2007, he filed more kites and was examined by nurses at Ryan three times for severe headaches.
Kites, Exh. E, at 12-13; Medical Records, Exh. C, at 55-58. Indeed, one report noted that Mr.
Cobbs experienced a headache that he rated as 8 out of 10 on a pain scale. Medical Records,
Exh. C, at 56; Piper Dep., Exh. G, at 90. Mr. Cobbs was not scheduled for an ophthalmology
consult or for cataract surgery, based on the previous denials.
In early February 2008, Mr. Cobbs‟ counsel contacted the MDOC defendants‟ counsel
about the possibility of representing the plaintiff in this action.
On February 6, 2008, Mr. Cobbs saw the optometrist Dr. McGrath again. Dr. McGrath
filed the same request for an ophthalmology consult and surgery that he had been filing for four years: “Please evaluate double vision, patient is wearing patch to eliminate double vision.” 13
See Medical Records, Exh. C, at 59. CMS approved the request on February 12, 2008. Care
Enhance Records, Exh. L, at 23.
13 In deposition, on leading questions from his own counsel, Dr. McGrath (at various times) described Mr. Cobbs‟ double vision in February 2008 as both “monocular” (meaning that he was getting a double image in his right eye) and as “binocular” (meaning that he was getting a double image from both eyes). See McGrath Dep., Exh. F, at 126 and 128-29. The CMS defendants suggest, see CMS Defs‟ Brief at 11, that this was somehow something “new” that at long last justified CMS‟s approval of an ophthalmology consult after four years of denials. The Court should not be taken in by this argument, for two reasons. First, Mr. Cobbs had been effectively blind in his left eye since at least early 2006. His complaints thereafter had always been of blurred and double vision in his good right eye (caused by the strain on that eye). In February 2008 he could not have had “binocular” double vision because he couldn‟t see out of his left eye at all. Second, the paperwork on the ophthalmology consult request of 2/7/08 did not highlight that the complaint was of a new or different nature. Medical Records, Exh. C, at 59-60. Indeed, the paperwork was unusual only for (1) the speed with which CMS approved it, and (2) the fact CMS did not ask for supplemental information. Indeed, the paperwork was nearly identical to the April 2007 request (that had been routinely denied), as well as to what Mr. Cobbs and his treating doctors had been providing for the past four years. Id. The only thing that had changed was that Mr. Cobbs was about to get a lawyer, and/or that Dr. Pramstaller‟s motion to dismiss was about to be denied because he had participated in the denial of care.
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On February 26, 2008 – after almost four years of waiting – Mr. Cobbs finally saw the ophthalmologist (Dr. Datsgir) again. Medical Records, Exh. C, at 62-65. Dr. Datsgir noted that Mr. Cobbs had complained of “headache & double vision [for] 3 years,” and requested left-eye cataract surgery. Id. On March 13, 2008, CMS finally approved the left-eye surgery. Medical Records, Exh. C, at 67.
Mr. Cobbs‟ second cataract surgery was finally performed in April 2008, three years and eight months after the original surgery was scheduled to occur, in September 2004. As Dr. Dastgir had predicted, see Dastgir Decl., Exh. M, at 2, 4-8, the surgery and recovery were rougher than the first time around. Mr. Cobbs had painful pressure in his eye following the surgery, and he had to return for a follow-up procedure to stop the wound from leaking. Medical Reports, Exh. C, at 77-82; Cobbs Decl., Exh A, at 10-11. Mr. Cobbs seeks damages for the denial of care from 2004 to 2008.
ARGUMENT
I. MR. COBBS HAS MADE OUT AN EIGHTH AMENDMENT CLAIM The defendants argue that Mr. Cobbs‟ left-eye cataract did not constitute a serious medi-
cal need. This is wrong both as a matter of law, and as a matter of fact based on the record in this case. Rather, a reasonable jury could find that the defendants acted with deliberate indifference by denying Mr. Cobbs‟ left-eye cataract surgery. Accordingly, the Court should deny the defendants‟ motion for summary judgment on the plaintiff‟s Eighth Amendment claim.
A. The Record Demonstrates that Mr. Cobbs’ Condition Constituted an Objectively Serious Medical Need
To prove an Eighth Amendment claim, the plaintiff must show that the defendants were deliberately indifferent to his serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104 (1976); City of Canton v. Harris, 489 U.S. 378, 392 (1989). The plaintiff must demonstrate two
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components, one objective and one subjective, to establish deliberate indifference. Blackmore v. Kalamazoo County, 390 F.3d 890, 895 (6th Cir. 2004) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)). The objective component is a “serious medical need.” Id. A medical need is sufficiently serious if “facts show an obvious need for medical care that laymen would readily discern as requiring prompt medical attention by competent care providers.” Blackmore, 390 F.3d at 898. A medical need is both serious and obvious where a condition “has been diagnosed by a physician as mandating treatment.” Perez v. Oakland County, 466 F.3d 416, 423 (6th Cir. 2006); Blackmore, 390 F.3d at 897. In these instances, “it is sufficient to show that [the inmate] actually experienced the need for medical treatment, and that the need was not addressed within a reasonable time frame.” Blackmore, 390 F.3d at 900.
This Court has already found that “this case presents a situation where the condition that was known to the Defendants ... is obvious enough that a layperson would recognize the need [for the left eye cataract extraction].” R. 77, Report & Recommendation; R. 82, Order Adopting R&R. As early as 2004, and consistently thereafter, Mr. Cobbs‟ ophthalmologist, his primary care physician, and his optometrists were in unanimous agreement that he should have the lefteye cataract surgery. See, e.g., Medical Records, Exh. C, at 34, 36, 37, 44, 50 (repeatedly saying that cataract surgery is needed or required). Indeed, Dr. Piper testified that he would not have referred Mr. Cobbs for specialty care unless he believed such a referral was medically necessary. See Piper Dep., Exh. G, at 32.
Second, as the two ophthalmologists make clear, the diagnosis and prescribed course of treatment for cataract removal meets the standard for a serious medical need, satisfying the objective component of an Eighth Amendment claim. See Sugar Decl., Exh. N, at 2. That is, in eye clinics throughout the country, cataract surgery is almost automatically recommended and
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performed by doctors and covered by insurers, unless there is a medical reason not to do so. See Datsgir Decl., Exh. M, ¶ 7. Indeed, but for Mr. Cobbs‟ incarceration, any medical provider in southeast Michigan (if not in the country) would have done surgery immediately, back in 2004. See Sugar Decl., Exh. N, ¶ 5; see also Part I (B), below.
Third, the defendants‟ claim that Mr. Cobbs‟ condition did not constitute a serious medical need is contradicted by their own documents, their testimony, and the testimony of their employees and their co-defendants. During the course of discovery, the defendants produced a so-called “pass-through” sheet or list. See Exh. O. Dr. Hutchinson testified that this “CMS document” was “intended to enable the Utilization Review nurse [a CMS employee] to pass through or authorize a variety of services without the need to consult the Utilization Review physician.” Hutchinson Dep., Exh. I, at 26-27; Jones Dep., Exh. J, at 30, 38-39. Dr. Hutchinson also testified that the “basic goal [of a Utilization Review nurse] is if it‟s clearly medically necessary, they simply authorize the procedure.” Hutchinson Dep., Exh. I, at 16 (emphasis added); Jones, Dep., Exh. J, at 8-10 (“[The pass-through list] basically told us that when we receive a request for any of these services, we can go ahead and authorize it”). If CMS nurses can simply authorize the services that appear on the pass-through list, the inescapable conclusion is that such services are by definition medically necessary.
The pass-through list indicates that, according to the defendants‟ own criteria, a second cataract surgery is medically necessary for “(b) posterior sub-capsular glare” or “(c) great discrepancy in vision.” Exh. O. Mr. Cobbs suffered from both posterior sub-capsular glare and a great discrepancy in vision dating all the way back to 2004. Based on the defendants‟ own criteria, Mr. Cobbs‟ left-eye cataract met the definition of a serious medical need.14
14 Dr. Pramstaller concedes as much in his deposition. Exh. H, at 48-79. He cannot explain why the surgery was not approved, given the documented glare, double vision, discrepancy, and serious side effects.
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The defendants were aware that Mr. Cobbs suffered from posterior sub-capsular glare as
early as July 27, 2004. See Medical Records, Exh. C, at 11-1415 And Dr. Hutchinson testified
that glare would be a factor in considering whether a second cataract surgery is medically neces-
sary. See Hutchinson Dep., Exh. I, at 75-76. Similarly, Dr. Pramstaller testified:
Q: For someone who doesn‟t have diabetes, would there ever be a reason to remove a second cataract?
A: Yes. Q: And what would that be? A: Well, if they have a posterior sub-capsular cataract and it causes glare, and the
glare interferes with vision from the good eye and makes it difficult for them to visualize what‟s going on around them; therefore, they need that cataract taken out so that the glare disappears. Q: And do you assume that the standards that CMS applies would include what you just said, that if there is that kind of glare, then the cataract should be removed? [Objection omitted.] A: I assume that CMS was following that because we had discussed that on a number of occasions in the Medical Advisory Committee.
Pramstaller Dep., Exh. H, at 56.
Similarly, the defendants were aware that Mr. Cobbs was suffering from a great dis-
crepancy in vision as early as December 2005. At that time, Dr. McGrath‟s report showed that
Mr. Cobbs‟ best corrected visual acuity in his left eye had deteriorated to 20/600 in less than
seven months, while his best corrected visual acuity in his right eye remained 20/20. Med.
Records, Exh. C, at 34. Within a few months Mr. Cobbs was effectively blind in his left eye and
began to wear an eye patch. There can be no greater discrepancy in vision than 20/20 vision in
one eye and virtual blindness in the other eye. Indeed, Dr. Pramstaller testified:
Q: What about vision in the good eye, does that indicate or contraindicate performing a second cataract surgery?
A: … [I]f you have someone who is, has 20/20 vision in the first cataract eye, but the
15 See also Datsgir Decl., Exh. M, at ¶¶ 20-21 (“The glare from a posterior sub-capsular cataract can impair vision in patients with good visual acuity in the other eye. Although a patient may test with good corrected binocular vision in a darkened lab, as soon as the patient is exposed to brighter light, and especially to sunlight, the glare from a posterior sub-capsular cataract can greatly interfere with vision in both eyes.”). This is exactly what happened to Mr. Cobbs. See Cobbs Updated Decl., Exh. A, at 8-9.
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second cataract eye is 20/400, and you can‟t see a thing out of that eye, the dispar-

ity in the visual cortex makes it difficult, so we would probably do that cataract,

also.

Q: And I take it the CMS Chief of Utilization Review would know that, as well?

[Objection omitted.]

A: He was present when we discussed these issues, yes.

*

*

*

*

*

*

Q: … [O]nce the cataract has grown to the point that the patient can see nothing in

that eye, at that point, do you do the surgery, or do you still wait?

A: No, you probably should do the surgery.

*

*

*

*

*

*

Q: But I am saying if he‟s wearing a patch at the point where he‟s unable to discern

objects, and can only discern light and dark, are we at the point where the cataract

should be removed?

A: I would think all things being equal, yes.

Pramstaller Dep., Exh. H, at 57-59, 72.16

The “pass-through” list and the above testimony show that Mr. Cobbs‟ condition – a

posterior sub-capsular cataract with glare and a great discrepancy in vision – constituted an ob-

vious medical need that went untreated for almost four years. Moreover, Dr. Hutchinson testi-

fied as follows about the meaning of “medical necessity” within the MDOC/CMS:

Q [The MDOC policy] describes medically, presently medically necessary care as care

16 Dr. Hutchinson disagrees with Dr. Pramstaller‟s testimony of what the phrase “great discrepancy in vision” means. According to Dr. Pramstaller, the phrase means what it says: “visual acuity in one eye versus the visual acuity in the other eye.” Pramstaller Dep., Exh. H, at 49. According to Dr. Hutchinson‟s account, this “language was an attempt to capture [diplopia or double vision].” Hutchinson Dep., Exh. I, at 30. Dr. Hutchinson‟s attempt to work around the plain meaning of the phrase is largely incomprehensible. Id., at 31. His position is also doubly inconsistent. First, he testified that the “pass-through” list “contains the MDOC directives on allowing second cataract authorizations to occur” and that the list “was compiled by CMS based on conversations, and in some cases, written communication with DOC.” Id., Exh. I, at 26-27. If that is true, then the MDOC medical director‟s (Dr. Pramstaller‟s) interpretation, of which CMS was aware, should prevail. And in that case, there is no doubt that Mr. Cobbs suffered from great discrepancy in vision for four years. Second, if the “pass-through” list contains purely CMS (rather than MDOC) policies – as Dr. Pramstaller suggests in his deposition, see Exh. H, at 49 – then Dr. Hutchinson‟s interpretation does not hold water. The “pass-through” list refers to diplopia in discussing contact lenses. See Exh. O, line 8(c). Thus, if CMS intended “great discrepancy in vision” to mean the same thing as “diplopia,” CMS surely knew how to say what it meant. Finally, Mr. Cobbs suffered from double vision for years before his surgery was approved, thus satisfying even Dr. Hutchinson‟s interpretation of clear medical necessity. See, e.g., Medical Records, Exh. C, at 12 (noting double vision in the left eye as early as July 2004); and at 64 (noting in 2008 that Mr. Cobbs had complained of double vision for three years).

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without which the inmate could not be maintained without significant risk of either further serious deterioration of the condition, or significant reduction of the chance of possible repair after release, or without significant pain or discomfort. Yes? A That‟s what it reads, yes. Q All right. So there are really three reasons that something can be presently medically necessary, according to the definition that [CMS UR nurses] were taught to use? A Yes.
Hutchinson Dep., Exh. I, at 18-19. Two of the three criteria fit Mr. Cobbs to a T, and the third is
inapplicable because as a lifer Mr. Cobbs might never be released.
To bolster their argument, the CMS defendants assert that “each of Plaintiff‟s treaters
who requested an ophthalmology consultation noted that the request was routine, as opposed to
urgent.” This, too, is untrue. The record shows that at least two requests were marked “urgent.” Exh. C, at 24 (Aug. 25, 2006) and 30 (May 30, 2007).17 Next, the defendants assert that there is
“no evidence that Plaintiff‟s cataract caused him to suffer any pain in his left eye.” Of course,
this artfully dodges the point. The question is not whether Mr. Cobbs suffered pain in his left eye
as a result of his cataract, but whether he suffered “significant pain or discomfort,” and whether
his poor vision caused him “difficulty in doing activities of daily living.” Pramstaller Dep., Exh.
H, at 53-54, 75-76 (“what sorts of functional disability [did] this [reduced] vision create?”).
On these issues, the defendants simply ignore the record. There is no question that Mr.
Cobbs experienced severe headaches, dizziness, loss of balance, eye strain, and (after early 2006)
blurry and double vision in his right eye. See Grievances, Exh. D, at 4, 6; Kites, Exh. E, passim;
Medical Records, passim; Cobbs Decl., Exh. A, at 8-9. From late 2005 or early 2006 he was
effectively blind in his left eye and was forced to wear an eye-patch to function. Exh. A, at 8-9;
17 The defendants also conflate “urgency” with “medical need.” The MDOC‟s own regulations make it clear that all kinds of “serious medical needs” would not meet the MDOC‟s definition of “urgency.” See PD 03.04.100, Exh. B, at 4, 10. “Urgency” for the MDOC has to do with the time within which a medical response is required, not the obviousness or seriousness of the medical need itself: an urgent condition is one that “needs to be treated as soon as possible and cannot wait for routine scheduling.” Id. Thus, the failure to treat any obvious and serious medical condition for four-plus years would violate the Eighth Amendment, regardless of whether or not the condition would be classified as “urgent” by the MDOC.
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Exh. C, at 24. Mr. Cobbs also suffered from extreme photophobia. Exh. C, at 44. There is no question that Mr. Cobbs was walking into walls, objects, and other people for lack of left-side and peripheral vision. Exh. A, at 8-10, Exh. C, at 34. Indeed, the plaintiff‟s expert confirms that posterior sub-capsular cataract symptoms can include loss of depth perception, blurred vision, glare, headaches, and poor balance. Sugar Decl., Exh. N, ¶ 19.
As a result of these side effects, Mr. Cobbs suffered significant problems in his daily life, including walking, reading, watching TV, concentrating, and going up and down stairs. Cobbs Decl., Exh. A, at 8-10. The record, especially viewed in the light most favorable to Mr. Cobbs, is more than sufficient to establish that his condition constituted an obvious, serious medical need. Cf. Campbell v. Fry, No. 89-6578, 1990 WL 15601, at *1 (4th Cir. Feb. 9, 1990) (vacating trial court grant of summary judgment in favor of defendant where approval for cataract surgery was denied “on the basis that it was elective in nature and delay would not cause any deterioration in the underlying condition as the cataracts could be successfully removed at a later date” where a doctor stated that plaintiff‟s “vision was deteriorating rapidly”).
The defendants also claim that “there is absolutely no evidence that Plaintiff‟s left eye cataract posed any risk of serious harm or permanent damage to the health of his eye.” In fact, the record contradicts this assertion. First, Mr. Cobbs‟ primary care physician and his optometrist repeatedly warned the defendants of the heightened risk of glaucoma. See, e.g., Exh. C, at 18, 19. Second, the plaintiff‟s expert says that removing hypermature cataracts, like the one Mr. Cobbs had, increases the risk of complications from surgery, including the risk of puncturing or damaging the lens capsule, especially with posterior sub-capsular cataracts. Sugar Decl., Exh. N, ¶¶ 16-18. The MDOC‟s own contract ophthalmologist, Dr. Dastgir, repeatedly warned the defendants of the risks of delaying surgery until a cataract is hypermature: removing dense, thick,
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hard cataracts is a recipe for surgical complication. Dastgir Decl., Exh. M, at 2, and Letters, id., at 5-8. And those complications arose in this case. See Cobbs Decl., Exh. A, at 10; Medical Records, Exh. C, at 88.
In any case, “where a plaintiff‟s claims arise from an injury or illness so obvious that even a lay person would easily recognize the necessity for a doctor‟s attention,” Mr. Cobbs need not present verifying medical evidence to show that, “even after the delayed necessary treatment, his medical condition worsened or deteriorated.” Blackmore, 390 F.3d at 899-900. In essence, Blackmore stands for the proposition that where the seriousness of a prisoner‟s need for medical care is obvious, as here, the constitutional violation is not premised upon the detrimental effect of the delay, but rather that the delay alone creates a substantial risk of serious harm. Id. at 899. Here the delay caused years of unnecessary pain and suffering, serious limitations on Mr. Cobbs‟ basic functions of daily life, and ultimately surgery that was riskier, more painful, and that required follow-up procedures to complete. See Cobbs Decl., Exh A, at 10. See also Boretti v. Wiscomb, 930 F.2d 1150, 1154 (6th Cir. 1991) (having to endure physical pain and mental anguish during the time of delayed care constitutes cruel and unusual punishment within the meaning of the Eighth Amendment); Parrish v. Johnson, 800 F.2d 600, 610 (6th Cir. 1986) (actual injury is not a necessary predicate to damages for an Eighth Amendment violation). Mr. Cobbs‟ condition was obvious to anyone who saw him: as his doctors noted, the cataract in his left eye grew so dense his pupil was no longer visible. Thus, the injuries he suffered from 2004 to 2008 while he was denied the surgery are sufficient to sustain his Eighth Amendment claim.
Finally, even if this case were governed by Napier v. Madison Co., Ky., 238 F.3d 739, 742 (6th Cir. 2001), such that the plaintiff would have to place “verifying medical evidence in the record to establish the detrimental effect of the delay in medical treatment to succeed,” Mr.
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Cobbs has easily met that standard as well. Mr. Cobbs‟ agrees with this Court‟s finding in the first Report and Recommendation that “[f]our years of needless suffering endured by the Plaintiff while repeated requests from doctors and from Plaintiff were superficially denied, the documented deterioration of his vision, his walking into objects, and the eventual donning of an eye patch, are the type of unnecessary infliction of pain contemplated by the Supreme Court in Estelle.” R. 77, Report & Recommendation, at 13-14.
The defendants cite a number of cases from other jurisdictions for the proposition that a cataract does not qualify as an objectively serious medical need. See CMS Defs‟ Exhs. M-R. But those cases are distinguishable on their facts. First, none of the cases cited by the defendants involved a posterior sub-capsular cataract with glare, which the defendants here admit constitutes a serious medical need. Second, even the cases cited by the defendants distinguish between cases where there is evidence that the cataract causes pain and affects the activities of daily living, as Mr. Cobbs‟ cataract did here, and cases where there is no such evidence. See, e.g., Hurt v. Mahon, 2009 U.S. Dist. LEXIS 279295, at *7 n.3 (E.D. Va. Aug. 31, 2009) (“Nowhere in any of his submissions to the Court does plaintiff claim to suffer pain as the result of his condition”); Williams v. Shelton, 2008 U.S. Dist. LEXIS 54394, at *7 (D. Or. July 16, 2008) (“The decision for surgical removal is usually based on the cataract‟s effect on the activities of daily living”); Edwards v. Bradford, 1997 U.S. Dist. LEXIS 15089, at *4 n.1 (D.S. Ala. July 16, 1997) (noting that plaintiff “has not stated, either generally or in detail, the nature of [the incidents complained of]” nor “has informed the Court how those incidents were related to his visual impairment”).
Third, unlike the plaintiff in Rylee v. Bureau of Prisons, 2009 U.S. Dist. LEXIS 24609 (D.S.C. Mar. 9, 2009), Mr. Cobbs would have satisfied the Federal Bureau of Prison‟s ophthalmology guidelines. See Part I (B), below. Fourth, some of the cases cited apply law from other
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circuits that is substantially different from the controlling law in this circuit. Compare Leyster v. D’Amico, 182 F.3d Appx. 697, at *2 (stating that “a delay in medical treatment must lead to further injury to support a claim for deliberate indifference”) with Blackmore, 390 F.3d at 899-900 (“where a plaintiff‟s claims arise from an injury or illness so obvious that even a lay person would easily recognize the necessity for a doctor‟s attention, the plaintiff need not present verifying medical evidence to show that, even after the delayed necessary treatment, his medical condition worsened or deteriorated”). Finally, all of the cases cited by the CMS defendants were pursued by pro se plaintiffs. As a result, little or no record was developed, and the briefs were not prepared by trained attorneys. This Court should not rely on unpublished pro se cases to set the boundaries of important Eighth Amendment rights.
The defendants‟ argument also proves too much. In essence, the defendants appear to be arguing that a cataract can never be an objectively serious medical need (absent some specific danger to the patient). That cannot be the case, as the defendants‟ own documents show that if a cataract causes glare, or if there is a great discrepancy in vision, then the cataract surgery is medically necessary. See Pass-Through List, Exh. O. Thus, at most, the cases cited by the defendants stand for the proposition that in those particular cases, the standard for medical necessity was not met.
B. Mr. Cobbs Would Have Been Promptly Treated under the Private and Public Insurance Guidelines Cited by the CMS Defendants
Contrary to the defendants‟ assertions, the failure to treat Mr. Cobbs‟ left-eye cataract was not consistent with guidelines published by Aetna, Medicaid or Medicare, or the Federal Bureau of Prisons.
The defendants argue that “Plaintiff received cataract surgery on his left eye at the same time as he would have been eligible under Aetna‟s guidelines.” CMS Defs‟ Brief, at 20. This is
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patently untrue. For Aetna members with best corrected vision in their good eye of 20/50 or worse (on the Snellen eye chart),18 “cataract surgery is medically necessary when all subjective,
objective, and educational criteria are met.” Aetna Standards, Def. Exh. K, at 2. The subjective
criteria are met when “[t]he member perceives that his or her ability to carry out needed or de-
sired activities is impaired.” Id. Examples of such impaired activities include driving, viewing
television, reading, and performing occupational activities. Id. Objective criteria are met when
the “best correctable Snellen visual acuity in the affected eye is 20/50 or worse,” an examination
shows that the cataract is impairing the visual acuity, and the member‟s health permits surgery to be performed safely.19 Id. (emphasis added). Educational criteria are satisfied when the patient
is educated regarding the risks of cataract removal surgery. Id.
Without question, Mr. Cobbs would have met the private Aetna standards (in 2004 or
2005) precisely because they include functional criteria (as opposed to the eye-chart scores that
CMS used exclusively). Moreover, for Aetna members with a Snellen acuity of 20/40 or better,
cataract surgery is medically necessary when, in addition to the criteria listed above, there is
subjective and objective evidence of “light-related visual loss” or “glare.” Id. at 2-3. In Mr.
18 “The Snellen eye chart has a series of letters or letters and numbers, with the largest at the top. As the person being tested reads down the chart, the letters gradually become smaller…. The Snellen fractions, 20/20, 20/30, etc., are measures of sharpness of sight. They relate to the ability to identify small letters with high contrast at a specified distance. … When checking visual acuity, one eye is covered at a time and the vision of each eye is recorded separately, as well as both eyes together. In the Snellen fraction 20/20, the first number represents the test distance, 20 feet. The second number represents the distance that the average eye can see the letters on a certain line of the eye chart. So, 20/20 means that the eye being tested can read a certain size letter when it is 20 feet away. If a person sees 20/40, at 20 feet from the chart that person can read letters that a person with 20/20 vision could read from 40 feet away. The 20/40 letters are twice the size of 20/20 letters; however, it does not mean 50% vision since 20/20 sounds like it is one half of 20/40. If 20/20 is considered 100% visual efficiency, 20/40 visual acuity is 85% efficient.” Wendy Strouse Watt, O.D., How Visual Acuity Is Measured, October 2003, http://www.mdsupport.org/library/acuity.html. 19 Curiously, the CMS defendants‟ brief repeatedly references Aetna‟s standard for medically necessary cataract removal as it pertains to “visual disability with a Snellen Acuity of 20/50 or worse,” but never mentions the standard for “a visual disability with a Snellen Acuity of 20/40 or better.”
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Cobbs‟ case, there was evidence of light-related visual loss and glare going all the way back to
the summer of 2004. Medical Records, Exh. C, at 12 (best corrected vision in left eye was 20/70
but dropped to 20/400 with glare); Piper Dep., Exh. G, at 60-61.
By 2005, Mr. Cobbs complained that his visual disability impaired depth perception to
the point of walking into objects, and that he experienced wide range of daily problems. Cobbs
Decl., Exh. A, 8-10. Mr. Cobbs also clearly satisfied the educational criteria as of 2004. Dr.
Dastgir noted: “After fully and thoroughly explaining all of the risks and benefits and answering
all of the patient‟s questions to his satisfaction, he decided to have cataract extraction with lens
implants performed in both eyes and he was scheduled for the same.” Exh. C, at 14.
Mr. Cobbs‟ cataract extraction was also “medically necessary” in 2004 under the Medi-
care/Medicaid standards. See Def. Exh. L, at 3-4. Cataract surgery, either for first or second cataracts, is “medically necessary” if the following criteria are met: 20
[1] Decreased ability to carry out daily living including (but not limited to): reading, watching television, driving, meeting occupational or vocational expectations, and [2] The patient has best corrected visual acuity of 20/50 or worse at distant or near; or additional testing shows one of the following:
o Consensual light testing decreases visual acuity by two lines, or o Glare testing decreases visual acuity by two lines [3] The patient has determined that he/she is no longer able to function adequately with the correct visual function; and [4] Other eye disease(s) including, but not limited to macular degeneration or diabetic retinopathy, have been ruled out as the primary cause of decreased visual function; and [5] Significant improvement in visual function can be expected as a result of cataract extraction; and [6] The patient has been educated about the risks and benefits of cataract surgery and the alternative(s) to surgery (e.g., avoidance of glare, optimal eyeglass prescription, etc.); and [7] The patient has undergone an appropriate preoperative ophthalmologic evaluation that generally includes a comprehensive ophthalmologic exam and ophthalmic biometry. Id. (emphasis added). Contrary to the defendants‟ assertions, Mr. Cobbs satisfied every one of
these factors years before his cataract surgery was approved. As previously noted, Mr. Cobbs‟
20 Numbering has been added for ease of reference.
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left-eye cataract decreased his ability to carry out daily living functions beginning in 2004 (satisfying factor #1 above). Mr. Cobbs underwent an appropriate preoperative ophthalmologic evaluation with Dr. Dastgir on July 27, 2004 (#7), at which time Dr. Dastgir determined that Mr. Cobbs was a good candidate for improved vision via cataract removal (#4 & #5). After having been educated about the risks (#6), Mr. Cobbs consented to surgery (#3). At that time Dr. Dastgir further noted that Mr. Cobbs‟ best corrected vision in the left eye was 20/70 and dropped to 20/400 with glare (#2). A patient‟s visual acuity must drop by “two lines” to satisfy the second criterion.21 Therefore, Mr. Cobbs‟ cataract surgery was also “medically necessary” under the Medicare/ Medicaid standards as early as 2004.
Mr. Cobbs‟ left-eye cataract surgery arguably would have been approved even under the guidelines published by the Federal Bureau of Prisons. In February 2008, the Bureau published a pamphlet titled “Ophthalmology Guidance.”22 See Def. Exh. J. It indicates that referral for medical evaluations by an eye specialist is warranted when an inmate exhibits any of a number of visual symptoms, including “distortion of vision, obscured vision, loss of vision, double vision, [and] new onset of abnormalities or opacities in normal transparent media of the eye.” Id. at 4-5. Mr. Cobbs exhibited all of these symptoms yet CMS denied every referral request for medical evaluation by an ophthalmologist for over four years. Evaluation by an ophthalmologist is also warranted if “[o]ther history, symptoms, or signs ... indicate the need for examination/ treatment by an ophthalmologist, as determined by a physician or mid-level practitioner.” Id., at 5. Every doctor and optometrist who examined Mr. Cobbs requested a referral for ophthalmological evaluation of his left eye, but CMS denied every such request from 2004 to 2008. 21 Dropping two lines from 20/70 on a standard Snellen Eye Chart results in 20/200 vision. See Exh. P. 22 It is unclear if this document is actually used by the Bureau of Prisons, or what other standards or policies accompany it.
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The Bureau‟s “Ophthalmology Guidance” pamphlet also indicates that cataract surgery should be approved according to the following criteria:
There must be documentation of a best-corrected visual acuity of less than 20/60 in both eyes with current (less than six months old) refraction. Second eye surgery requires a documented, best-corrected visual acuity of 20/100 or less. Defs‟ Exh. K, at 5. The phrase “both eyes,” in the context of this standard, probably means that each eye must have a best-corrected visual acuity of less than 20/60. 23 Unlike evaluation for first eye-surgery, however, evaluation for second-eye surgery is apparently not concerned with best corrected vision in “both eyes.” The exclusion of the phrase from the standard for secondeye cataracts could well mean that the “best-corrected visual acuity of 20/100 or less” refers to the affected eye, the same as in the Aetna standards. By December 2005, Dr. McGrath‟s report shows that Mr. Cobbs‟ best corrected visual acuity in his left eye had deteriorated to 20/600 and that no lens helped. Medical Record, Exh. C, at 36. This certainly exceeds the 20/100 required for medical necessity in this context by the federal BOP. Therefore, Mr. Cobbs‟ second left-eye cataract surgery may well have met the BOP guidelines as early as 2004 or 2005. Ultimately, it is not the plaintiff‟s role, nor goal, to establish that a cataract constitutes a serious medical need in every case. Rather, the plaintiff must present sufficient evidence to survive summary judgment demonstrating that in this case such a serious medical need was present. Mr. Cobbs has carried his burden. C. Mr. Cobbs’ Claim Also Satisfies the Subjective Component of an
Eighth Amendment Claim As noted above, the plaintiff must demonstrate two components, one objective and one subjective, to establish deliberate indifference. Blackmore, 390 F.3d at 895. The subjective component is a showing that the defendants had “a sufficiently culpable state of mind in denying 23 Best corrected visual acuity can refer to the best visual acuity of the left eye, right eye, or both eyes. See McGrath Dep., Exh. F, at 18.
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medical care.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). To satisfy the subjective component, the defendants must be aware of facts from which the inference could be drawn that a substantial risk of harm exists, and they must draw such an inference. Id., at 837.
Mr. Cobbs‟ claim also satisfies the subjective component. In light of the treating doctors‟ and specialists‟ persistent detailed requests, this is not a case where the defendants were unaware of Mr. Cobbs‟ condition, or his symptoms, or the ongoing risks to his health. The clinic reports sent by his doctors, and the requests for medical help sent by Mr. Cobbs himself, meant that the defendants did not have to “infer” anything. They had direct notice that his vision was impaired, that he was suffering from headaches and double vision and other serious side effects like loss of balance and depth perception, that he was at risk of glaucoma and long-term loss of eyesight, and that he was functionally blind in one eye. The defendants didn‟t need to draw an inference – all they had to do was read the reports they were sent. A reasonable jury could find that the defendants knew from the medical facts not just that Mr. Cobbs was at risk of serious harm, but that he was already suffering serious harm. At the very least, the defendants could draw that inference.
Mr. Cobbs‟ case therefore satisfies both the objective and subjective component of an Eighth Amendment claim of deliberate indifference to serious medical needs.
The defendants correctly point out that an inmate may not establish an Eighth Amendment violation merely because of a disagreement over the treatment provided. Napier v. Madison County, 238 F.3d 739, 742 (6th Cir. 2001). But Mr. Cobbs is not arguing that he should have been prescribed a different course of treatment. He is arguing that he should have been provided the very course of treatment he was prescribed, first by Dr. Dastgir and subsequently by his primary care physician and the optometrists who observed his condition and implored the defendants to approve the left-eye cataract surgery.
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The facts here are similar to those in Titlow v. Corrections Medical Services, 2008 WL 907450 (E.D. Mich. 3/31/08) (Exh. Q), another Eighth Amendment case involving the denial of medically necessary surgery. The plaintiff in Titlow was denied mastectomy surgery while she suffered from pain and likely infection due to leaking silicone breast implants. Id. at *1. Her treating doctors repeatedly recommended that she undergo a mastectomy, but the defendants rejected these recommendations as not medically necessary. The court denied the defendants‟ motion for summary judgment on the surgery claim and rejected the idea that the case was about a disagreement over treatment choice, pointing out that a denial of prescribed treatment is not a medical treatment decision because there is no treatment. Id. at *7 (emphasis added). Because every doctor who had actually examined and treated the plaintiff recommended the surgery, the court held that the defendants‟ denials “had nothing to do with the appropriate treatment of the plaintiff‟s individual condition.” Id. The denials were “based on generalities having nothing to do with the actual … condition of the plaintiff.” Id.
The same reasoning applies to Mr. Cobbs‟ case. His treating doctors made numerous requests for him to have surgery on his left eye. They noted the decline in Mr. Cobbs‟ health and well-being due to the side effects. They noted the increased risk of glaucoma. The defendants did not and could not have provided Mr. Cobbs with an alternative treatment because surgery is the only treatment for a cataract. Thus, this case does not center on a disagreement over the prescribed course of care. The defendants‟ denial of a surgery that Mr. Cobbs‟ doctors said was medically necessary constitutes deliberate indifference to his serious medical needs.
A reasonable jury could find that the defendants acted with deliberate indifference by denying Mr. Cobbs‟ second left-eye surgery. Even Dr. Pramstaller seems to agree. When asked: “Based on what you just said, it would make sense to say to every patient, Wear a patch, we‟re
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never going to take [the cataract] off. Why don‟t you do that?” He responded: “That‟s not a very humane way to treat people.” Pramstaller Dep., Exh. H, at 74. But that is exactly what the defendants did to Mr. Cobbs, for four years. The Court should deny the defendants‟ motion for summary judgment.
II. THE SUPERVISORY DEFENDANTS PARTICIPATED IN THE DECISIONS TO DENY MR. COBBS’ SURGERY, AND WERE RESPONSIBLE FOR THE MDOC/CMS CUSTOMS AND POLICIES ON CATARACT SURGERY This Court should deny summary judgment to all supervisory defendants because each
was personally involved in the deprivation of Mr. Cobbs‟ Eighth Amendment rights. To hold senior officials liable in their individual capacity under § 1983, the plaintiff must show either (1) that the senior officials participated directly in the unconstitutional act, or (2) that there was a causal connection between the actions of the supervisory officials and the alleged constitutional deprivation. See Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). As to the second, a causal connection can be proven by a showing that the supervisory officials‟ customs or policies resulted in deliberate indifference to the plaintiff‟s constitutional rights. See e.g., Miller v. King, 384 F.3d 1248, 1261, vacated on other grounds, 449 F.3d 1149 (11th Cir. 2006) (warden denied summary judgment where wheelchair-bound prisoner alleged ongoing failure of paraplegic medical care). Here, Mr. Cobbs has demonstrated both: that the defendants participated directly in decisions to deny treatment, and that their customs or policies on treatment caused or resulted in the deliberate indifference.
A. The Supervisory Defendants Participated in the Decisions to Deny Mr. Cobbs’ Surgery
As noted above, Drs. Hutchinson and Pramstaller (as well as the members of the MSAC) were not treating physicians. Rather they served as part of the MDOC/CMS utilization review apparatus that denied the repeated requests for surgery made by Mr. Cobbs‟ hands-on treating
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doctors. The individual supervisory MDOC/CMS defendants thus participated directly in the denial of treatment for Mr. Cobbs‟ obvious and serious medical needs. The MSAC was the last arbiter of utilization review decisions. Defendants Hutchinson and Pramstaller were present at both MSAC meetings, and Mr. Cobbs has retained as party defendants only those senior officials who participated in the consensus agreement at the two MSAC meeting when the requests for treatment were denied. See Exh. K, at 2-3; Pramstaller Dep., Exh. H, at 14-15 (identifying who comprises the MSAC), and Policy Directive 03.04.100, Exh. B, at 5, ¶ K (same). Dr. Hutchinson also personally conducted a CMS utilization reviews denying Mr. Cobbs‟ cataract surgery. See Medical Records, Exh. C, at 49 (denial signed by Hutchinson based on “20/20 vision in right eye”). Dr. Mathai took over the role of CMS medical director in 2007 when Dr. Hutchinson left. Hutchinson Dep., Exh. I, at 10, 13.
This is not a case where liability is premised on respondeat superior, as the defendants argue. Cf. Grinter v. Knight, 532 F.3d 567, 575-576 (6th Cir. Ky. 2008) (affirming dismissal of claims where the plaintiff argued that prison officials were personally liable merely because they held supervisory roles). The defendants‟ participation in various aspects of Mr. Cobbs‟ case distinguishes such rote claims. The defendants are not liable merely because they held supervisory positions, but because their actions and decisions while in those positions constituted deliberate indifference to Mr. Cobbs‟ medical needs. See e.g., Hafer v. Melo, 502 U.S. 21, 25 (1991) (a casual relationship between the actions or decisions of a prison official and the deprivation of a federal right is sufficient to establish personal liability under §1983). Accordingly, the Court should deny summary judgment to the supervisory defendants because each participated in the decision to deny the surgery.
The CMS defendants argue that this Court should overlook their personal involvement in
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Mr. Cobbs‟ case because others also took part in denying his surgery. They argue that Dr. Pramstaller, the MSAC chair, had the ultimate authority to decide the outcome. See CMS Defs‟ Brief, at 19; see also Hutchinson Dep., Exh. M, at 60 (“Pramstaller‟s vote is the only one that counts at the MSAC”).
But that is not what Dr. Pramstaller says, and that is not what his counsel says, and that is not what the MDOC Operating Procedure says. Dr. Pramstaller testified as follows:
Q: And when [the MSAC] made its decision, it made its decision as a committee; it wasn‟t George Pramstaller who made the decision, it was the committee who made[Objection omitted.]
Q: Is that right? A: Well, the Committee usually discussed the case and reached a consensus as to how
things were going to be handled. Q: But it was the Committee’s consensus decision? A: Yes. Q: Okay. Was there ever a formal vote around the table, or not? A: No, there was not. Pramstaller Dep., Exh. M, at 42-43 (emphasis added). In Dr. Pramstaller‟s first motion for summary judgment, his counsel argued that when a CMS doctor decides that “a surgery is not medically necessary, the … appeal goes to the MSAC. In this case, the prisoner‟s appeal was denied by the MSAC, and not by Dr. Pramstaller.” R. 12, Motion for Summary Judgment (later withdrawn) (emphasis added). Even Hutchinson conceded that the MSAC‟s meetings were “discussions” where each MSAC member expressed an opinion, and that such meetings rarely generated argument. “[I]t‟s usually a consensus.” Hutchinson Dep., Exh. H, at 60-61. All MSAC members had the responsibility to review the “cases prior to the MSAC” meeting and to “[d]iscuss each case … at the MSAC meeting.” See Operating Procedure OP 03.04.100, Exh. B, at 3. Only in the event that consensus could not be reached did the chief medical officer (Pramstaller) have authority to decide the issue. Id. at 3, ¶ 26. There is nothing
35

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in the record (other than Hutchinson‟s self-serving efforts to paint Pramstaller as the decisionmaker) to support the CMS defendants‟ claim that they were not personally involved in the MSAC consensus decisions to deny Mr. Cobbs‟ surgery. Indeed, Dr. Pramstaller testified that the CMS representatives play an active role in MSAC decisions. See Pramstaller Dep., Exh. M, at 44 (MSAC reviews CMS‟s decision to deny treatment by first having the CMS representative explain the specific circumstances of the case). This Court should deny summary judgment to all the MDOC and CMS supervisory defendants because each was personally involved in the deprivation of Mr. Cobbs constitutional rights. At a minimum, there is a genuine issue of material fact as to the defendants‟ personal involvement in the denial of Mr. Cobbs‟ surgery.
B. CMS, Inc., and the Supervisory Defendants Are Liable for Adopting, Implementing, or Applying the MDOC/CMS Policies that Resulted in the Failure to Treat
Even if the corporate and supervisory defendants had no personal involvement in the denial of care, they can still be held liable if they applied MDOC/CMS customs or policies that resulted in deliberate indifference to Mr. Cobbs‟ constitutional rights. See Shehee v. Luttrell and Miller v. King, supra. Mr. Cobbs has met his burden of showing that the MDOC/CMS customs and policies deprived him of his constitutional rights.
As to CMS, although a government agency may not be held liable merely on a theory of respondeat superior, “a private contractor is, however, liable for constitutional violations caused by a policy or custom of that private contractor.” Johnson v. Karnes, 398 F.3d 868, 877 (6th Cir. 2005); Street v. Corr. Corp. of Am., 102 F.3d 810, 817 (6th Cir. 1996); Hicks v. Frey, 992 F.2d 1450, 1458 (6th Cir. 1993). A plaintiff may establish a private contractor‟s liability in this regard by pointing to the private contractor‟s official policies, informal customs or policies, or actions taken by the contractors‟ decision-making officials. Thomas v. City of Chattanooga, 398
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F.3d 426, 429 (6th Cir. 2005) (citing Monell, 436 U.S. at 694.). A plaintiff may also satisfy this burden by illustrating the private contractor‟s “tolerance or acquiescence of federal rights violations.” Id.
The MDOC and CMS adopted a cataract surgery policy that deprived Mr. Cobbs of his right to be free from cruel and unusual punishment under the Eighth Amendment. CMS (as well as the MSAC) repeatedly denied Mr. Cobbs‟ left-eye cataract surgery based solely on the visual acuity of his right eye. See e.g., Hutchinson Dep., Exh. I, at 68; Medical Records, Exh. C, at 35 (denying surgery on 12/27/05 stating “Pt had good response to his surgery on RT eye.”). Hutchinson, acting as CMS medical director in the state, also approved and employed this policy in denying Mr. Cobbs‟ surgery. Id., at 49 (“not authorized based on 20/20 vision in the right eye”). Utilization review nurse Jones said:
Q Are you aware of cases in which the vision [in the good eye] was better than 20/40… but a second cataract [surgery] was nevertheless approved?
A No. Jones Dep., Exh. J, at 73. Despite the “pass-through” list, the MDOC and CMS had a custom or policy of denying cataract surgery without regard to other relevant factors, such as visual acuity in the affected eye, blurred or double vision or strain in the good eye, the level of pain or discomfort, or the disruption in daily living caused by the poor vision or other side effects. Even the cases the defendants cite recognize the importance of these factors in assessing a deprivation of an inmate‟s constitutional rights. See, e.g., Williams v. Shelton, supra (surgical decision usually based on effect on activities of daily life); Hurt v. Mahon, supra (no evidence of pain).
Moreover, systemic failures in the MDOC/CMS customs and policies all but guaranteed that the decision for cataract surgery would not be based on anything but the Snellen Acuity score for the good eye. Although a request for specialty care had to be submitted by the patient‟s
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treating doctor or optometrist, none of Mr. Cobbs‟ treating/referring physicians or optometrists
ever knew what criteria CMS or the MSAC were using to approve or deny requests for evalua-
tion or cataract surgery. Dr. Piper testified:
Q. Have you ever been told by the Department of Corrections whether there is any criteria you should use to evaluate cataract surgery?
A. No. Q. Have you ever been told by the Department that they have certain criteria that they
use to evaluate cataract surgery? A. No.
Piper Dep., Exh. G, at 35-36 et seq.; McGrath Dep., Exh. F, at 17 (same). The treating doctors
were in the dark, just like their patient.
Based on discovery, a reasonable jury could find that the MDOC/CMS intentionally kept
the utilization review standards from the treating doctors. The “pass-through” list was not shared
with anyone outside the CMS UR department. Jones Dep, Exh. J, at 52; Hutchinson Dep., Exh. I, at 28. Furthermore, none of Mr. Cobbs‟ treating doctors ever understood why their repeated
requests for surgery were denied, or what new or different information it would take to get their
requests approved. See Piper Dep., Exh.G, at 33-36; McGrath Dep., Exh. F, at 17.
Even the ophthalmologist who performed most of the cataract surgeries for the MDOC
(Dr. Dastgir) said he was never told what criteria CMS used, nor was there a discernable pattern
to the cataract approvals and denials CMS issued in his practice:
CMS has never given me a copy of the standards it uses to approve or deny a cataract surgery. I simply receive notification that my surgery requests have been approved or denied. I almost never get a call from a CMS doctor or staff explaining why a cataract surgery request has been approved or denied, or telling me what more is needed for approval.
CMS has both approved second cataract surgeries for inmates with good vision and denied second cataract surgeries for inmates with poor vision. I do not know why surgery for patients with hyper-mature cataracts is sometimes denied while at other times surgery for less-developed cataracts is approved.
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Dastgir Decl., Exh. N, at 1. He said that in Mr. Cobbs‟ case, “Neither CMS [n]or MDOC told me why they denied Mr. Cobbs‟ second cataract surgery from 2004 until 2008.” Id., at 3.
CMS repeatedly denied the treaters‟ requests, saying only “does not meet criteria” or “MSAC already denied” or “right-eye 20/20.” Medical Records, passim. Dr. McGrath was equally in the dark about the CMS appeals process:
Q: Do you know what MSAC is? A: On Exhibit 3? Q: Yes. A: MS – I don‟t know. I don‟t know if it‟s – MSAC, I don‟t know if I‟m familiar
with that. MSP stands for medical service provider. Q. But MSAC is not anything you're familiar with? A. Not that I‟m aware of. McGrath Dep., Exh. F, at 48. Although both MSAC denials (10/26/04 and 4/25/06) contained boilerplate language that invited re-evaluation of the case, CMS UR staff plainly viewed those denials as the final word on the subject. Even as Mr. Cobbs became increasingly symptomatic with each request, CMS‟s UR department cited the old MSAC decisions as the reason for nearly all subsequent denials. See e.g., Exh. C, at 34-35 (denying evaluation/surgery based on MSAC decision more than a year before even though Mr. Cobbs‟ vision had decreased to 20/600 in seven months and new side effects had been reported). And so on for four years. CMS policy was apparently to refuse cataract evaluation/surgery in all cases denied by the MSAC, regardless of how much time had passed since the previous MSAC denial, and regardless of whatever new complications, increased pain, or other symptoms the patient suffered. The severity of Mr. Cobbs‟ cataract was undeniable. He experienced pain, discomfort, and disruption of his daily activities. As his cataract got thicker, both his health risks and surgical risks increased. All of this information is vital to a decision regarding medical necessity, but the cus-
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toms and policies for cataract surgery all but precluded CMS from looking at the whole medical chart (let alone from looking at the whole patient).24 Instead it looked at a series of isolated re-
ferrals from Dr. Piper and the optometrists. Hutchinson‟s testimony illustrates the inadequacy of
CMS‟s UR process for cataract surgery in assessing the medical necessity of surgery for Mr.
Cobbs‟ hypermature cataract:
Q. [Is it] CMS position that throughout [2004 – 2008] [Mr. Cobbs] could be maintained without significant risk of further serious deterioration, or significant reduction of the chance of repair after release, or without significant pain or discomfort?
A. Yes. Every step of the way that the documents and the decisions you‟ve taken me through, I could say that, yes.
Q. And you say that because if any of those things had been present, [cataract surgery] would have been medically necessary, and he should have gotten the cataract removed?
A. Well, I think those – if there were assertions that those [side effects]were present, that that probably would have been – that would have led to a different decision if they‟d been brought to the decision-makers.
Hutchinson Dep., Exh. I, at 80-81 (emphasis added). But those side effects were brought to the
decision-makers, yet CMS and the MSAC still denied the surgery. See also Pramstaller Dep.,
Exh. H, at 52-76 (conceding that glare, great disparity in vision, blindness, discomfort, disruption
of daily activities, headaches, etc., are all reasons to approve second cataract surgery). Here the
customs and policies in place made it nearly impossible for those side effects to be considered by
CMS, and even when they were brought to CMS‟s attention, those side effects were rejected as a
reason to perform the surgery!
24 The defendants argue, on the one hand, that Mr. Cobbs‟ case involved a difference in “medical judgment,” as if the UR department and supervisors and the MSAC were part of his treatment team. See CMS Defs‟ Brief, at 25. Mr. Cobbs‟ real treating doctors, however – the ones who actually charted his decline over time, and who examined him – were unanimous in their opinion that Mr. Cobbs needed surgery. It is interesting to note that when the defendants need to argue a lack of “personal connection” to the case, see CMS Defs‟ Brief, at 17, suddenly the same UR supervisory people “had no involvement in Plaintiff‟s medical care and treatment.” Id. The defendants cannot have it both ways.
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In sum, the MDOC/CMS customs and policies on cataract surgery all but guaranteed that a prisoner like Mr. Cobbs would go for years without treatment of his serious medical needs, regardless of his headaches, dizziness, glare, blurred and double vision, risk of harm from others, inability to read or watch TV or work certain jobs, risk of surgical complications, and general pain and suffering. Indeed, even when the vision in his good right eye fell to 20/50 in May 2007, CMS still routinely denied the referral for an ophthalmology consult. Accordingly, the Court should deny summary judgment to CMS, Inc., and all MDOC and CMS supervisory defendants.
III. THE MDOC DEFENDANTS ARE NOT ENTITLED TO QUALIFIED IMMUNITY The MDOC defendants incorrectly assert that they are entitled to summary judgment
based on qualified immunity. Summary judgment is not proper on the grounds of qualified immunity because Mr. Cobbs has alleged facts which, construed most favorably to him, show that the MDOC defendants unreasonably violated his clearly established Eighth Amendment rights by showing deliberate indifference to his serious medical needs.
To determine whether a party is entitled to the defense of qualified immunity, a court should apply a three-pronged test:
(1) Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer‟s conduct violated a constitutional right? (2) Did the official claiming immunity violate a clearly established right that would have been understood by a reasonable person? (3) Has the plaintiff presented sufficient facts, supported by evidence, to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established right? Higgason v. Stephens, 288 F.3d 868, 876 (6th Cir. 2002). If the plaintiff can establish these three prongs, the defendants are not entitled to qualified immunity. Id. Mr. Cobbs satisfies the first prong because, as discussed in Part I, supra, he has alleged
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facts which, taken as true, establish that the defendants violated his Eighth Amendment rights through deliberate indifference to his serious medical needs.25
Mr. Cobbs satisfies the second prong because the right to medical treatment is a clearly established right. A right is considered to be “clearly established” if a reasonable official would understand that his actions violate the right. Scicluna v. Wells, 345 F.3d 441, 446 (6th Cir. 2003) (citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)). MDOC policy can provide evidence of clearly established prisoner rights. Scicluna, 345 F.3d at 445. MDOC policy says that “prisoners shall be provided with unimpeded access to a continuum of health care services that is timely.” Exh. B, at 4. Corrective surgery is surgery the primary purpose of which is to “restore function.” Id., at 8. Under the MDOC‟s own definition, Mr. Cobbs‟ cataract removal surgery on his left eye was medically necessary. See Pass-Through List, Exh. O.
In their motion for summary judgment, the defendants state that they have found no cases holding that a delay in providing cataract surgery can constitute deliberate indifference, implying that therefore Mr. Cobbs‟ case does not implicate a clearly established right. MDOC Brief, at 56. Under Anderson v. Creighton, however, a right may be clearly established even if there is no previous legal case with identical facts. 483 U.S. at 640. A right is clearly established if a reasonable official would deem an action unlawful in light of established precedent. Mr. Cobbs‟ serious medical need was obvious: a reasonable health care official would have realized that deny-
25 The cases cited by the MDOC defendants are factually distinct from the denial of Mr. Cobbs‟ surgery. See Stevenson v. Pramstaller, No. 07-cv-14040, 2009 U.S. Dist. LEXIS 25495, at *15-16 ( E.D. Mich. Mar. 24, 2009) (holding that pro se plaintiff failed to rebut evidence that “defendants‟ decision was motivated by a medical finding that his eye condition was stable for almost a year”); Samonte v. Bauman, 264 Fed. Appx. 634, 636 (9th Cir. 2008) (concluding that a mere difference of opinion is “insufficient by itself to raise a triable issue of deliberate indifference”) (emphasis added). Mr. Cobbs‟ well-documented medical condition steadily worsened for four years. The MDOC defendants cannot claim otherwise. Furthermore, Mr. Cobbs‟ denies that there was a difference of opinion. To the contrary, every one of Mr. Cobbs‟ treating physicians agreed that his surgery was medically necessary, and MDOC/CMS policies confirmed the same thing.
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ing the surgery violated his constitutional rights (as well as MDOC policy). In fact, all of Mr. Cobbs‟ treating doctors realized that he needed the surgery, and nothing had changed when the MDOC finally approved the surgery.
Furthermore, federal courts have recognized that a delay in providing medically necessary eye surgery to an inmate can constitute deliberate indifference. See e.g., Castillo v. Dashiell, 2007 WL 609858, at *7 (E.D.Cal., Feb. 27, 2007) (unpublished case) (adopted at 2007 WL 933790 (E.D. Cal., Mar 27, 2007) (denying summary judgment on Eighth Amendment claim where surgery was not performed until 10 months after inmate lost vision in one eye and noting that providing some medical treatment will not preclude an Eighth Amendment violation unless it is “competent treatment”), attached as Exh. R. See also Taghipour v. Chastine, 43 F.3d 669 (5th Cir. 1994) (vacating dismissal to defendants on prisoner‟s Eighth Amendment claim based on delay in providing proper medical treatment after prisoner sustained an eye injury). Mr. Cobbs satisfies the second prong of the qualified immunity test because he was denied a clearly established right.
The third and final prong of the qualified immunity test is satisfied because the facts show that the defendants‟ actions were objectively unreasonable in light of the plaintiff‟s clearly established right. It is hard to imagine how Mr. Cobbs or his treating doctors could have underscored the need for the surgery any further. Objective medical evidence accompanied and supported their requests.
Mr. Cobbs has met all three prongs of the qualified immunity test. The defendants knew that Mr. Cobbs had a serious medical condition requiring treatment. A reasonable health official, knowing that the cataract surgery had been prescribed and that Mr. Cobbs‟ condition was worsening, would have approved the surgery (or would not have waited until the patient brought a
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lawsuit to take action). On the facts presented, the denial of care from 2004 to 2008 was objectively unreasonable in light of Mr. Cobbs‟ clearly established right. In this case a reasonable jury could find that the defendants not only acted with deliberate indifference, but that the defendants knowingly and willfully violated Mr. Cobbs‟ Eighth Amendment rights. The MDOC defendants are not entitled to qualified immunity, as this Court already found in its previous order.
Conclusion For the above reasons, the plaintiff respectfully requests that the MDOC and CMS defendants‟ motions for summary judgment be denied.
Respectfully submitted, s/ Paul D. Reingold
Michigan Clinical Law Program Attorneys for Plaintiff 363 Legal Research Building 801 Monroe Street Ann Arbor, MI 48109-1215 (734) 763-4319 pdr@umich.edu – P27594
s/ Brad Smyer Student Attorney for Plaintiff s/ Ondrej Staviscak Diaz Student Attorney for Plaintiff Dated: December 23, 2009
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Proof of Service

The plaintiff‟s brief in response to the MDOC and CMS defendants‟ motions for summary judgment, together with exhibits and this proof of service, were filed using the Court‟s ECF system, which will provide same-day e-mail service to all counsel of record.

Dated: December 23, 2009

/s/ Paul D. Reingold Attorney for Plaintiff pdr@umich.edu - P27594

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INDEX OF EXHIBITS

Exhibit A: Updated Declaration of Plaintiff Dallas Cobbs (12/09)

Exhibit B: Exhibit C:

MDOC Policy Directives and Operating Procedures Dallas Cobbs‟ Medical Records26

Exhibit D: Dallas Cobbs‟ Grievances and Responses

Exhibit E: Dallas Cobbs‟ Health Care Requests (Kites) and Letters

Exhibit F: Deposition of Dr. Michael McGrath, O.D.

Exhibit G: Deposition of Paul Piper, M.D.

Exhibit H: Deposition of George Pramstaller, M.D.

Exhibit I: Deposition of Craig Hutchinson, M.D.

Exhibit J: Deposition of Utilization Review Nurse Brenda Jones

Exhibit K: MDOC Defendants‟ Response to Interrogatories

Exhibit L: CMS Care Enhance Computer Medical Records

Exhibit M: Declaration of Ophthalmologist Ghulam Dastgir, M.D., and Letters Supplied to MDOC re. Surgical Risks of Late Caratacts

Exhibit N: Declaration of Ophthalmologist Alan Sugar, M.D.

Exhibit O: CMS “Pass-Through” List

Exhibit P: Snellen Eye Chart

Exhibit Q: Titlow v. Corrections Medical Services, 2008 WL 907450 (E.D. Mich. No. 07-CV-12083 (3/31/08)

Exhibit R:

Castillo v. Dashiell, 2007 WL 609858, No. CV S-04-0737, at *7 (E.D.Cal., Feb. 27, 2007) (unpublished case) (adopted at 2007 WL 933790, No. CV-0737 (E.D. Cal., Mar 27, 2007)

26 These documents are not filed under seal with the plaintiff‟s permission, because he wants the public to be able to see what happened to him. His date of birth and other data subject to identity theft have been redacted, pursuant to Local Rule 5.3 and Fed. R. Civ. P. 5.2.
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 1:07-cv-14644-TLL-CEB Doc # 115 Filed 03/25/10 Pg 1 of 21 Pg ID 1573

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DALLAS COBBS,

Plaintiff,

CASE NO. 07-CV-14644

v.

DISTRICT JUDGE ANNA DIGGS TAYLOR

MAGISTRATE JUDGE CHARLES BINDER

GEORGE J. PRAMSTALLER,

CRAIG HUTCHINSON, WILLIAM

BORGERDING,1 MARCELLA CLARK,

KEITH IVENS,2 GREGORY NAYLOR,

BENCY MATHAI, BONITA DAVIS

NEIGHBORS, HARESH PANDYA, CHRIS SAMY,

individually and in their official capacities,

and CORRECTIONAL MEDICAL

SERVICES, INC.,

Defendants.3 /

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION ON DEFENDANTS HUTCHINSON, MATHAI, AND CORRECTIONAL MEDICAL
SERVICES’ MOTION FOR SUMMARY JUDGMENT; DEFENDANTS CLARK, NAYLOR, DAVIS-NEIGHBORS, PANDYA, AND
PRAMSTALLER’S MOTION FOR SUMMARY JUDGMENT; AND PLAINTIFF’S MOTION TO AMEND/CORRECT
AMENDED COMPLAINT TO ADD CUSTOM AND POLICY CLAIM (Docs. 103, 104, and 108)

I. RECOMMENDATION For the reasons set forth below, IT IS RECOMMENDED that:

1Defendants Samy and Borgerding returned their waivers of service on June 25, 2008, (Docs. 40, 45) and their answers were due on August 25, 2008, but they have not filed any pleading to date.
2There is no record of service of process on this defendant and he has not filed any pleadings to date.
3Other defendants were dismissed on September 23, 2008, and June 24, 2009. (Docs. 68, 90.)

1:07-cv-14644-TLL-CEB Doc # 115 Filed 03/25/10 Pg 2 of 21 Pg ID 1574
1. Defendants Hutchinson, Mathai and Correctional Medical Services’ motion for summary judgment (Doc. 103) be GRANTED IN PART and that Defendants Hutchinson and Mathai beDISMISSED for lack of the requisite personal involvement;
2. Defendants Clark, Naylor, Davis-Neighbors, Pandya, and Pram staller’s motion for summary judgment (Doc. 104) be DENIED; and
3. Plaintiff’s motion to amend complaint to add custom and policy claim (Doc. 108) be GRANTED.
II. REPORT A. Introduction By order of U.S. District Judge Anna Diggs Taylor, this case was referred to the
undersigned magistrate judge for general case management on November 7, 2007. (Doc. 3.) There have been previously-filed Reports and Recommendations (R&Rs) in this case that were adopted by Judge Taylor. (Docs. 77, 82, 94, 97.) Responsesto the above-captioned pending motions have been filed. (Docs. 106, 113, 114.) After review of the documents, I conclude that these motions are ready for Report a nd Recommendation without oral argum ent pursuant to E.D. Mich. LR 7.1(e)(2).
B. Background Plaintiff is an inmate in the custody of the Michigan Department of Corrections (MDOC) who was incarcerated at all tim es relevant to this litigation at the Ryan Correctional Facility in Detroit, Michigan. (Compl., Doc. 1 at 2.)
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This case centers around Plaintiff’s allegations that, despite being diagnosed with cataracts in both eyes in 2004, he was given surgery on onlyone eye and was repeatedly denied requests for an ophthalmology consultation and cataract surgery on the rem aining eye by m embers of the Medical Services Advisory Com mittee (MSAC) and m edical staff of Correctional Medical Services (CMS) for almost four years until he was finally provided with surgery on April 14, 2008. More detailed facts will be provided in the analysis that follows. This ca se has a rather lengthy procedural history that need not be recounted here. Included in that history is a previous R&R recommending denial of Defendants’ motion for summary judgment (Doc. 77), which was adopted on February 12, 2009. (Doc. 82.)
C. Motion Standards & Governing Law A motion for summary judgment will be granted under Rule 56(c) of the Federal Rules of Civil Procedure where “there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c). All facts and inferences must be viewed in the light m ost favorable to the non-m oving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). The moving party has the initial burden of showing the absence of a genuine issue of m aterial fact as to an essential element of the non-movant’s case. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989) (citing Celotex Corp. v Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). In determining whether the moving party has met its considerable burden, a court may consider the plausibility of the m oving party’s evidenc e. Matsushita, 475 U.S. at 587-88. Summary judgment is also proper where the m oving party shows that the non-m oving party is unable to meet its burden of proof. Celotex, 477 U.S. at 326.
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In response, the non-moving party cannot rest merely on the pleadings alone. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 LE. d. 2d 202 (1986). Instead, the nonmoving party has an obligation to present “significant probative evidence” to show that “there is [more than] some metaphysical doubt as to the material facts.” Moore v. Philip Morris Cos., 8 F.3d 335, 339-40 (6th Cir. 1993). When the nonm oving party fails to adequately respond to a summary judgment motion, a district court is not required to search the record to de termine whether genuine issues of material fact exist. Street, 886 F.2d at 1479-80. Instead, the court will rely upon the “facts presented and designated by the moving party.” Guarino v. Brookfield Twp. Trustees, 980 F.2d 399, 404 (6th Cir. 1992). The Sixth Circuit has explicitly instructed that it is “utterly inappropriate for the court to abandon itsposition of neutrality in favor of a role equivalent to champion for the non-moving party: seeking out facts, developing legal theories, and finding ways to defeat the motion.” Id. at 406.
After examining the evidence designated by the aprties, the court then determines “‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party m ust prevail as a m atter of law.’” Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1310 (6th Cir. 1989) (quoting Anderson, 477 U.S. at 251-52). Summary judgment will not be granted “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.
Defendants have asserted the defense of qualified im munity. The Suprem e Court has explained that, “government officials performing discretionary functions generally are shielded from liability for civil dam ages 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, 73 L. dE. 2d 396 (1982). The rationale underlying
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the doctrine is that “an official could not reas onably be expected to anticipate subse quent legal developments, nor could he fairly be said to ‘know’ that the law forbade conduct not previously identified as unlawful.” Id. Qualified immunity further recognizes that “[i]t is sometimes difficult for an officer to determine how the relevant legal doctrine will apply to the factual situation he confronts. ‘If the officer’s m istake as to what the law requires is reasonable, . . . the officer is entitled to the immunity defense.’” Greene v. Barber, 310 F.3d 889, 894 (6th Cir. 2002) (quoting Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001)).
The defense of qualified im munity “can be raised at various stages of the litigation including at the pleading stage in a m otion to dismiss, after discovery in a motion for summary judgment, or as an affirmative defense at trial.” English v. Dyke, 23 F.3d 1086, 1089 (6th Cir. 1994) (citing Kennedy v. City of Cleveland, 797 F.2d 297, 299-300 (6th Cir. 1986)). When raised after discovery, “the defendant is entitled to sum mary judgment if discovery fails to uncover evidence sufficient to create a genuine issue as to whether the defendant in fact committed those acts.” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985).
When a defendant moves for summary judgment on the basis of qualified im munity, the analysis involves three inquiries: (1) “whether, based upon the applicable law, the facts viewed in the light most favorable to the plaintiffs show that a constitutional violation has occurred;” (2) “whether the violation involved a clearly established constitutional right of which a reasonable person would have known;” and (3) “whether the plaintiff ha s offered sufficient evidence to indicate that what the official allegedly did wa s objectively unreasonable in light of the clearly established constitutional rights.” Radvansky v. City of Olmsted Falls, 395 F.3d 291, 302 (6th Cir. 2005) (quoting Feathers v. Aey, 319 F.3d 843, 848 (6th Cir. 2003)).
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In deciding qualified immunity questions, courts were for some years required to address
these inquiries in sequential order. See Estate of Carter v. City of Detroit, 408 F.3d 305, 310-11
(6th Cir. 2005); and Klein v. Long, 275 F.3d 544 (6th Cir. 2001) (both citingSaucier, 533 U.S. at
201). However, the sequential approach is no longer mandated; trial judges are now permitted to
use their sound discretion in deciding which of the prongs of the qualified im munity analysis
should be addressed first. Pearson v. Callahan, ___U.S.___, 129 S. Ct. 808, 818, 172 L. Ed. 2d
565 (2009).
The Supreme Court has also c larified the interplay between qualified im munity and the
summary judgment standards found in Rule 56(c) of the Federal Rules of Civil Procedure:
At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a “genuine” dispute as to those facts. As we have emphasized, “[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the m aterial facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a m otion for sum mary judgment. . . . Respondent’s version of the events is so utterly discredited by the record that no reasonable jury could have believed him[so] [t]he Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape.
Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007).
Once the defense of qualified immunity is raised, the burden rests with the plaintiff to show
that the defendant is not entitled to qua lified immunity. Curry v. School Dist. of the City of
Saginaw, 452 F. Supp. 2d 723, 734 (E.D. Mich. 2006) (citing Silberstein v. City of Dayton, 440
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F.3d 306, 311 (6th Cir. 2006)). The court must only consider the facts known to the officers at the time the conduct was undertaken. Hale v. Kart, 396 F.3d 721, 728 (6th Cir. 2005).
D. Analysis and Conclusions 1. Personal Involvement - Defendants Hutchinson and Mathai Defendants Hutchinson and Mathai assert that they should be granted summary judgment because they had insufficient personal involvement in deciding whether Plaintiff would receive the second cataract surgery and because they were not a proxim ate cause of Plaintiff’s alleged injury. (Doc. 103 at 28-31.) Defendant Mathai argues that she did not participate in any Medical Services Advisory Com mittee (MSAC) decision not to authorize surgery and Defenda nt Hutchinson contends that although he attended one or more MSAC meetings, “only the MDOC CMO had the final authority to provide Plaintfif’s second eye cataract surgery.” (Doc. 103 at 28.) These Defendants state that “[w]hile the CMS Medical Director typically sat on the MSAC, Dr. Mathai did not assume that position with CMS until September 2007” and “[a]lthough there is evidence Dr. Hutchinson sat on the MSAC, he ha d no vote in the ultim ate decision to deny or authorize the off-site referrals . . . [because] [t]he ultimate authority to decide the outcome of an appeal to the MSAC rested solely with the Chief Medical Officer of the MDOC, which, in this case, was Defendant Dr. Pramstaller.” (Doc. 103 at 30-31.) Plaintiff contends that Defendants Hutchinson and Pramstaller were “present at both MSAC meetings, and Mr. Cobbs has retained as party defendants only those senior offic ials who participated in the consensus agreement at the two MS AC meetings when the requests for treatment were denied.” (Doc. 106 at 40-41 (emphasis in original).) Plaintiff further contends that Dr. Hutchinson personally conducted CMS utilization reviews denying Plaintiff’s surgery and that
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“Dr. Mathai took over the role of CMS medical director in 2007 when Dr. Hutchinson left.” (Doc. 106 at 41.)
Research has revealed one case addressing this very issue. In Fisher v. Pramstaller, No. 04-CV-72102, 2008 WL 2795813 (E.D. Mich. July 18, 2008), Judge Cleland concluded:
Even if Plaintiff were able to show that MSAC m ade decisions that effectively denied him medical care, he has not demonstrated that Hutchinson is responsible . . . . even though MSAC discusses these appeals and ‘reaches a consensus if possible’ on whether a request should be granted, it is the CMO that has the ultiamte authority to decide. . . . Hutchinson, as a member of MSAC, does not have any independent decision-making authority. . . . Thus, he was in no position to deny Plaintiff care even if he had been fully aware of Plaintiff’s medical problems. (Id. at *6.) The same is true in the instant case. Thus, I suggest that Defendants Hutchinson and Mathai are correct in arguing that the ir membership in the MSAC does not provide the level of personal involvement necessary to impose responsibility for any Eighth Am endment violation. I therefore suggest that Defendants Hutchinson and Mathai’s motion for summary judgment be granted and that they be dismissed from the case.
2. Eighth Amendment - Defendants CM S, Pramstaller, Clark, Naylor, Pandya and Neighbors4
Defendants Pramstaller, Clark, Naylor, Pandya and Neighbors have also raised the defense of qualified immunity. Thus, the standards described above also apply to these defendants. (Doc. 104 at 4.) In addition, Defendants CMS, Pram staller, Clark, Naylor, Pandya and Neighbors contend that “Plaintiff’s left eye cataract was not an objectively serious m edical need and Defendants did not believe that Plaintiff’s left eye cataract posed a serious risk of substantial harm to Plaintiff.” (Doc. 103 at 31-40; Doc . 104 at 8-10.) This defense im plicates the Eighth
4If the Court disagrees with the previous section’s analysis and finds that Defendants Hutchinson and Mathai did have the requisite personal involvement to remain in the case, then this section’s analysis would also apply to them.
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Amendment to the U.S. Constitution, which protects convicted inm ates from the imposition of “cruel and unusual punishments.” U.S. CONST. amend. VIII.
a. Deliberate Indifference to Serious Medical Needs In the context of prison medical treatment, the Supreme Court held in Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976), that the deliberate indifference to serious medical needs of prisoners constitutes unnecessary and wanton infliction of pain in violation of this constitutional clause. The Court explained that, “[i] n order to state a cognizable claim , a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indiffreence that can offend ‘evolving standards of decency’ in violation of the Eighth Amendment.” Id. at 106. Thus, mere inadequate medical treatment is not sufficient to state a violation of the Eighth Am endment. In Estelle, the Supreme Court explained: [A]n inadvertent failure to provide adequate m edical care cannot be said to constitute an unnecessary and wanton infliction of pain or to be repugnant to the conscience of mankind. Thus, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpracticeodes not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim , a prisoner must allege acts or om issions sufficiently harmful to evidence deliberate indifference to serious medical needs. Estelle, 429 U.S. at 105-06 (emphasis added) (quotations omitted). Consequently, differences in judgment between an inmate and prison medical personnel regarding the appropriate medical diagnoses or treatm ent are insufficient to state a deliberate indifference claim. Sanderfer v. Nichols, 62 F.3d 151, 154-55 (6th Cir. 1995). The Sixth Circuit distinguishes “between cases where the complaint alleges a complete denial of medical care and those cases where the claim is that a prisoner received inadequate medical treatment.” Westlake
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v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976). Where “a prisoner has received som e medical attention and the dispute is over the adequacy of the treatm ent, federal courts are generally reluctant to second guess medical judgments and to constitutionalize claims which sound in state tort law.” Id. See also Jones v. Martin, 5 Fed. Appx. 434 (6th Cir. 2001) (prisoner who received extensive medical attention for a badly decayed tooth but experienced little pain relief failed to state a constitutional claim).
A violation of the Eighth Amendment can occur if it “is manifested by prison doctors and their response to prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.” Estelle, 429 U.S. at 104. The inquiry is two-pronged, consisting of both an objective and a subjective elem ent. Wilson v. Seiter, 501 U.S. 294, 298, 111 S. Ct. 2321, 115 L. Ed. 2d 271 (1991). The objective inquiry asks whether the deprivation was sufficiently serious. Caldwell v. Moore, 968 F.2d 595, 602 (6th Cir. 1992). TheCaldwell court found that the plaintiff-prisoner “did not suffer a serious deprivation because his injuries were not serious enough to require immediate medical attention.” Id.
A medical need is sufficiently serious if “facts show an obvious need for medical care that laymen would readily discern as requiring prom pt medical attention by com petent health care providers.” Blackmore v. Kalamazoo County, 390 F.3d 890, 898 (6th Cir. 2005). However, “[ht]is ‘obviousness’ standard for determining a serious medical need is distinct from a separate branch of Eighth Amendment decisions where the seriousness of a prisoner’s medical needs ‘may also be decided by the effect of delay in treatment.’” Id. (emphasis in original).
The subjective component asks whether the officials acted with a sufficiently culpable state of mind. Id. The plaintiff m ust show that the de fendant’s conduct dem onstrated a level of
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deliberateness “‘tantamount to an intent to punish.’” See Hicks v. Frey, 992 F.2d 1450, 1455 (6th Cir. 1993) (quoting Molton v. City of Cleveland, 839 F.2d 240, 243 (6th Cir. 1988)). In 1994, the Supreme Court further explained this element “by equating it with criminal recklessness, which requires a subjective showing that the defendant was aware of the risk of harm.” Sanderfer, 62 F.3d at 154 (citing Farmer v. Brennan, 511 U.S. 825, 114 S. Ct. 1970, 1979, 128 L. Ed. 2d 811 (1994)). In Farmer, the Court specified tha t for a governm ent official to be deliberately indifferent, he “must both be aware of fa cts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. Finally, the government official must have “disregarded that risk.” Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001).
b. Record Evidence A review of the medical evidence in the instant case reveals that Dr. Dastgir recommended left eye cataract removal in August 2004. (Doc. 103, Ex. F at 333.)5 Nonetheless, the MDOC’s MSAC upheld non-approval for an ophthalmology referral toward left eye cataract removal despite continuing requests from Plaintiff’s optometrists and responses made to the MSAC in November 2004, May and December 2005 and January, March, and April 2006. (Doc. 103, Ex. F at 314, 320, 321, 322, 323, 325, 329.) In Decem ber 2005, Plain tiff’s doctor noted that Plaintiff had trouble with depth perception and was walking into objects on the left side because of his loss of vision and that his vision in the left eye had deteriorated to 20/600. (Id. at 322.) In January and March 2006, Dr. McGrath stated that because of the density of the cataract in the left eye, he was unable to examine the eye for possible glaucom a or other eye health issues. ( Id. at 314.) Dr.
5Exhibit F was filed under seal; I also note that the page numbers are not necessarily in order, but reflect the number stamped at the bottom of the referenced page.
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McGrath also noted that Plaintiff’s hyperm ature cataract surgery is m ore complicated and that there is risk of secondary glaucoma. (Id. at 320.)
On April 25, 2006, the MSAC upheld the non-approval, commenting as follows: “closely monitor for increase in interocular pressure and resubmit if pressure increases.” (Doc. 103, Ex. F at 313.)
On July 27, 2006, Dr. Piper informed the MDOC Bureau of Health Care that Plaintiff was “losing sight in left eye,” that his vision had been 20/40 in 2004, but had deteriorated to 20/400 by December 2005 and that referral to an ophthalmologist had been recommended at that time but had not been approved. (Doc. 103, Ex. F at 312.) The MSAC had indeed disapproved left eye cataract removal on October 26, 2004. (Doc. 103, Ex. F at 326.)
On August 25, 2006, the MDOC Bureau of Health Care noted an “urgent” need for referral because Plaintiff had an “opaque white pupil” and “extrem e photophobia - subjective and objectively” and that Plaintiff “w ears patch on left eye to function.” (Doc. 103, Ex. F at 305.) Plaintiff’s father wrote to Defendant Pramstaller and Defendant’s response was that Plaintiff was being “monitored closely” and that “[m]ultiple physicians have reviewed his case and all agree with the current treatment plan.” (Doc. 106 at 20, Ex. E at 8.)
The MDOC Bureau of Health Care Services again denied the request to have cataract removal surgery performed on Plaintiff’s left eye in June, July and August 2007, and was unpersuaded by the doctor’s notations that he “ca nnot view the retina” because of the “dense cataract.” (Doc. 103, Ex. F at 293.)
Plaintiff filed this lawsuit on October 30, 2007. (Doc. 1.) Plaintiff continued to complain to the MDOC, adding in October and November 2007 that he was having headaches caused from straining to see out of his left eye . (Doc. 103, Ex. F at 61, 64.) Defendant Pram staller filed a
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waiver of service on Decem ber 6, 2007, and his counsel filed an appearance on Decem ber 13, 2007. (Docs. 8, 9.) On January 15, 2008, Defendant Pram staller filed a m otion for summary judgment arguing lack of personal involvement and qualified immunity. (Doc. 12.)6
In February 2008, Dr. Dastgir noted that Pl aintiff’s “left fundus absolutely cannot be visualized due to density of the cataract” and that Plaintiff’s double-vision was caused by the “extremely advanced cataract.” (Doc. 103, Ex. F at 35-36.) Plaintiff was again denied approval for surgery at the MSAC’s February 26, 2008, m eeting. (Doc. 23 at 8.) Some time in February 2008, Plaintiff’s counsel agreed to represent Plaintiff and notified defense counsel of his intention to do so. (Doc. 106 at 8.)
Left eye cataract surgery was again recommended by Dr. Piper on March 3, 2008. (Doc. 103, Ex. F at 32.) On March 7, 2008, Plaintiff filed a m otion to supplem ent his m otion for preliminary injunction, noting that a “February 26, 2008, visit to the ophthalomlogist revealed that the cataract is now hypermature and in need of a more complicated surgery . . . .” (Doc. 22 at 3.7) Three days later, an “outside consultation request was created on March 10, 2008” at which time Plaintiff was approved for the requested surgery. (Doc. 23 at 8.) On March 25, 2008, Defendant Pramstaller filed another motion for summary judgment arguing that since Plaintiff had been approved for cataract removal surgery for his left eye, his claim for injunctive relief was m oot. (Doc. 23.) On March 27, 2008, an order assigning counsel for Plaintiff was entered. (Doc. 24.)
In April 2008, less than a month after counsel was assigned for Plaintiff, he underwent left eye cataract removal surgery performed by Dr. Dastgir. (Doc. 103, Ex. F at 189-90.) Plaintiff’s
6Defendant withdrew the motion on April 11, 2008. (Doc. 29.) 7This motion was withdrawn on April 14, 2008. (Doc. 34.)
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post-operative wound leaked for a period of time but was “looking excellent” as of May 27, 2008. (Doc. 103, Ex. F at 14.)
c. Discussion At the threshold, I agree with Defendants thatthe Sixth Circuit does not appear to have yet addressed whether a cataract constitutes an objectively serious m edical need or what would constitute deliberate indifference to such medical need. (Doc. 103 at 33.) However, I note that visual deficiencies caused by a failure to provide eeyglasses has been held to meet the standard and I suggest that logic would not dictate a different conclusion where visual deficiencies are caused by a cataract rather than an absence of eyeglasses.See, e.g., Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir. 1996) (reversing dismissal of Eighth Amendment claim and holding that serious medical need was alleged where failure to provide eyeglasses caused the plaintiff to fall walk into objects due to double vision and loss of depth perception). I next suggest that Defendants’ reliance on Stevenson v. Pramstaller, No. 07-cv-14040, 2009 WL 804748 (E.D. Mich. Mar. 24, 2009), is misplaced. In Stevenson, the court found that Plaintiff had “failed to rebut the evidence provided by Defendants from Plaintiff’s medical files that indicates Defendants’ decision was motivated by a medical finding that his eye condition was stable for almost a year.” Stevenson, 2009 WL 804748 at *5. In the instant case, there is no medical opinion indicating Plaintiff’s condition was stable, i.e., this is not a case presenting a difference of opinion between an inm ate and his doctor. Here, the m edical opinion evidence showed that Plaintiff’s condition consistently worsened, that Plaintiff’s vision had deteriorated to 20/400 or worse, that Plaintiff was walking into objects and had to wear a patch over his eye, and that Plaintiff’s doctors unanim ously expressed their concern over his eye health due to their inability to examine the eye because the cataract had so thoroughly covered the interior structures
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of the eye. Yet, nothing was done until after theinstant lawsuit was filed and defense counsel had been informed of Plaintiff’s success in securing counsel to represent him.
I therefore suggest that the instant case presents a scenario where the evidence of a serious medical need to which Defendants were deliberately indifferent is sufficient to defeat a omtion for summary judgment filed by Defendants. See Campbell v. Fry, No. 89-6578, 1990 WL 15601, at *1 (4th Cir. Feb. 9, 1990) (vacating trial court grant of summary judgment in favor of defendant where approval for cataract surgery was denied “on the basis that it was elective in nature and delay would not cause any deterioration in the underlying condition as the cataracts could be successfully removed at a later date” where a doctor stated that plaintiff’s “vision was deteriorating rapidly”); White v. Snider, No. 3:08-cv-252-RCJ(VPC), 2010 WL 331742, at *5 (D. Nev. Jan. 26, 2010) (“Both doctors Koenig and Jensen found the removal of the cataract worthy of comment in numerous reports to prison officials. Furthermore, plaintiff notes his inability to see in the prison yard and his increased headaches. Therefore, plaintiff has shown a seriousemdical need.”); Wilson v. Turner, No. 6:08-cv-06056, 2009 WL 1060509, at *5 (W.D . Ark. Apr. 20, 2009) (denying summary judgment because serious medical need shown where after doctor recommended cataract surgery, over a year passed and vision de teriorated, affecting his da ily living); Padichit v. Unknown Cook County Officials, No. 04-388-MJR, 2006 WL 1897518, at *3-4 (S.D. Ill. July 11, 2006) (finding com plaint stated objectively serious m edical need where plaintiff was denied cataract surgery despite intense headaches and fact that he could not see out of right eye); Dunn v. Harper, No. 1:08-CV-2366-TWT, 2008 WL 4534026, at *2 (N.D. Ga. Oct. 3, 2008) (finding complaint passed screening provision of PLRA as to deliberate indifference claim where the plaintiff alleged eye doctor inform ed him that cataract surgery was necessary and that plaintiff should see an eye specialist but after several months, plaintiff had still not seen the specialist);Cf.
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Hurt v. Mahon, No. 1:09CV958(LO/JFA), 2009 WL 2877001, at *2 (E.D. Va. Aug. 31, 2009) (no serious medical need where Plaintiff had no me dical evidence supporting need for cataract surgery); Rylee v. Bureau of Prisons, No. 8:08-CV-1643-PMD-BHH, 2009 W L 633000, at *8 (D.S.C. Mar. 9, 2009) (no deliberate indifference where undisputed medical evidence showed that plaintiff did not meet criteria for cataract surgery, visual acuity less than 20/60 in both eyes, since his visual acuity was never less than 20/30 in his left eyeW); illiams v. Shelton, No. 06-95-KI, 2008 WL 2789031, at *3 (D. Or. July 16, 2008) (no deliberate indifference where cataract removal in right eye was performed but denied with respectto his left eye where ophthalmologist “noted that the cataract in the left eye was not of im mediate importance but would benefit from cataract removal”); Samonte v. Bauman, No. 05-00309-HG-KSC, 2006 WL 2092384, at *7 (D. Hawaii July 26, 2006) (no deliberate indifference whe re no physician indicated plaintiff’s cataract required surgery, where there was no dispute am ong the physicians, despite the fact that one physician recommended and completed cataract surgery two years later).
To the extent that other health care policies regarding qualification for second cataract surgery are relevant under this claimrather than the policy, practice or procedure claimdiscussed below, I further suggest that even though these other policies are not dispositive of the instant claim, Plaintiff has sufficiently rebutted Defendant’s contention that Plaintiff would have fared no better under these other policies. (Doc. 103 at 23, n.20; Doc. 106 at 34-36.) I further note that none of these other policies recommend ignoring symptoms such as blurred vision, walking into objects, or complete blindness, which were all suffered by Plaintiff and reported to Defendants.
I further suggest that Defendants cannot rely on policy to relieve theomf their constitutional imperative to avoid deliberate indifference to serious m edical needs. See White v. Snider, No. 3:08-CV-252-RCJ(VPC), 2010 WL 331742, at *6 (D. Nev. Jan. 26, 2010) (denying sum mary
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judgment because a “factual issue rem ains as to whether defendants surrendered professional judgment and dismissed complaints based on the mere categorization of cataract removal as ‘not medically necessary’ under the NDOC regulations which categorizes cataract surgery as not ‘medically necessary’”).
Finally, I suggest that the subjective portion of the Eighth Am endment test and the objectively unreasonable prong of the qualified im munity test are both also m et in this case. 8 Plaintiff and his doctors repeatedly communicated Plaintiff’s needs and Defendants have not asserted that they were unaware of Plaintiff’s needs. Accordingly, I recommend that Defendants’ motion for summary judgment be denied as to this ground.
3. Policy, Practice or Procedure - Defendant CMS a. Plaintiff’s Motion to Amend Defendant CMS argues that it is entitled to summary judgment because “there is absolutely no evidence that CMS maintained an unconstitutional policy, practice or procedure that anyone relied upon resulting in injury to Plaintiff.” (Doc. 103 at 41-45.) This topic is also addressed in Plaintiff’s motion to amend the Amended Complaint to add a customand policy claim, which was filed on December 23, 2009. (Doc. 108.) Defenda nts did not respond to the motion. Plaintiff indicates that although one could argue that a customor policy claimwas implied in the statement of the Eighth Amendment claims, it is not explicitly stated. (Doc. 108 at 3.) Therefore, Plaintiff seeks to amend the Amended Complaint to add the following paragraph:
8I note that duringhis deposition, Defendant Pramstaller indicated that discrepancies in vision between two eyes caused by a remaining cataract in one eye can be reconciled by placing a patch over the affectedeye. Counsel then asked Defendant Pram staller, if a patch fixes th e problem, then why not refuse to perform second cataract surgeries at all? Defendant Pramstaller responded, “That’s not a very humane way to treat people.” (Doc. 106, Ex. H at 74.)
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The customs and policies of the MDOC and CMS, Inc., as adopted, implemented, and/or applied by the nam ed MDOC a nd CMS supervisory officials, were a proximate cause of the denial of Mr. Cobbs’ rights under the Eighth Amendment. (Doc. 108 at 4.) When a party wishes to amend a pleading after the opposing party’s responsive pleading has been served, it may only do so by leave of court or by written consent of the adverse party. FED. R. CIV. P. 15(a). When a motion for leave to amend is before the court, Rule 15(a) provides that “leave shall be freely given when justice so requires.”Id. “Although Rule 15(a) indicates that leave to amend shall be freely granted, a party m ust act with due diligence if it intends to take advantage of the Rule’s liberality,” United States v. Midwest Suspension & Brake, 49 F.3d 1197, 1202 (6th Cir. 1995), because, despite the Rule’s liberality, leave to am end “is by no m eans automatic.” Little v. Liquid Air Corp,. 952 F.2d 841, 845-46 (5th Cir. 1992). The decision to grant or deny a motion to amend pleadings is left to the sound discretion of the district court.Robinson v. Michigan Consol. Gas Co., Inc., 918 F.2d 579, 591 (6th Cir. 1990). When determining whether to grant leave to amend, the court is to consider several factors: Undue delay in filing, lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of amendment are all factors which may affect the decision. Delay by itself is not sufficient reason to deny a motion to amend. Notice and substantial prejudice to the opposing party a re critical factors in determining whether an amendment should be granted. Head v. Jellico Hous. Auth., 870 F.2d 1117, 1123 (6th Cir. 1989) (quotingHageman v. Signal L.P. Gas, Inc., 486 F.2d 479, 484 (6th Cir. 1973)). In the instant case, Plaintiff notes that Defendants have alleged in their omtion for summary judgment that any policy was not unconstitutional, soDefendants have “essentially assume[d]” that the claim has been averred. (Doc. 108 at 3.) There has been no allegation of bad faith or a ny
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repeated failure to cure deficiencies. I suggset there has been no undue prejudice since Defendants have failed to respond to the motion and since Defendants appeared to have assumed the claim was alleged. Therefore, I suggest that Plaintiff’s motion to amend be granted.
b. Analysis Because Plaintiff’s proposed amendment simply asserts the claim but does not seek to add any factual averments, I next consider the substance of Defendant CMS’s argument based on the policy, practice or procedure claim. Defendant CMS contends that summary judgment should be granted because Plaintiff has not come forward with sufficient evidence to support the claimthat CMS maintained an unconstitutional policy, practice or procedure.(Doc. 103 at 41-45.) Defendant CMS argues that its policy was not unconstitutional, i.e., that the second cataract surgery would be approved if a patient had any of three conditions: (1) diabetic retinopathy; (2) posterior subcapsular glare; or (3)great discrepancy in vision. (Doc. 103 at 42.) Plaintiff counters that the MDOC and CMS routinely denied second cataract surgery based on the visual acuity of the other eye and that, “[ d]espite this ‘pass-through’ list the MDOC and CMS had a custom or policy of denying cataract surgery without regard to other relevant factors, such as visual acuity in the affected eye, blurred or double vision or strain in the good eye, the level of pain or discomfort, or the disruption in daily living caused by the poor vision or other side effects.” (Doc. 106 at 44; Doc. 106, Ex. O (pass through list).) Plaintiff also argues tha t the “MDOC/CMS intentionally kept the utilization review standards from the treating doctors [because] [t]he ‘pass-through’ list was not sharedwith anyone outside the CMS UR department.” (Doc. 106 at 45 (em phasis in original).) Plaintiff cites Drs. Piper and McGra th’s deposition testimony indicating they were not aware what criteria the MDOC/CMS used to evaluate whether a candidate qualified for cataract surgery. (Id.; Ex. F at 17; Ex. G at 35-36.)
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Thus, the parties do not dispute the existence ofthe policy; the dispute is whether the stated policy is constitutional. I therefore suggest that Plaintiff has sufficiently alleged and supported his claim to survive summary judgment for the reasons stated under the Eighth Amendment analysis.

III. REVIEW Pursuant to Rule 72(b)(2) of the Federal Rules of Civil Procedure, “[w]ithin 14 days after
being served with a copy of the recom mended disposition, a party m ay serve and f ile specific written objections to the proposed findings and recommendations. A party may respond to another party’s objections within 14 days after being served with a copy.” Fed. R. Civ. P. 72(b)(2). See also 28 U.S.C. § 636(b)(1). The response shall be concise, but comme nsurate in detail with the objections, and shall address specifically, and in the same order raised, each issue contained within the objections.
Failure to file specific objections constitutes a waive r of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed.2d 435 (1985);Frontier Ins. Co. v. Blaty, 454 F.3d 590, 596 (6th Cir. 2006); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005). The parties are advised that making some objections, but failing to raise others, will not preserve all the objections a party may have to this Report and Recommendation. McClanahan, 474 F.3d at 837; Frontier Ins. Co., 454 F.3d at 596-97.

Dated: March 25, 2010

s/ Charles` E Binder
CHARLES E. BINDER United States Magistrate Judge

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CERTIFICATION
I hereby certify that this Report and Recommendation was electronically filed this date and electronically served on counsel of record via the Court’s ECF System.

Date: March 25, 2010

By s/Patricia T. Morris Law Clerk to Magistrate Judge Binder

21

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

DALLAS COBBS, #164276,

Pl

aintiff,

Case

v.

Honorable

Magistrate

GEORGE J. PRAMSTALLER, et al.,

No.: 07-cv-14644 Anna Diggs Taylor Judge Charles E. Binder

Defendants.

Paul D. Reingold (P27594) MICHIGAN CLINICAL LAW PROGRAM Attorney for Plaintiff 363 Legal Research Building 801 Monroe Street Ann Arbor, MI 48109-1215 (734-763-4319
Clifton B. Schneider (P70582) Michigan Department of Attorney General Attorneys for MDOC Defendants 525 W. Ottawa Street P.O. Box 30217 Lansing, MI 48909 (517) 335-7021

Randall A. Juip (P58538) Brian J. Richtarcik (P49390) Anthony D. Pignotti (P71100) The Juip Richtarcik Law Firm Attorneys for Defendants, Correctional Medical Services, Inc., Craig Hutchinson, M.D., and Bency Mathai, M.D., only The Penobscot Building 645 Griswold Street, Suite 3850 Detroit, MI 48226 (313) 859-5900

ORDER ADOPTING IN PART AND REJECTING IN PART MAGISTRATE JUDGE CHARLES BINDER’S REPORT AND RECOMMENDATION (This Order Resolves Docket Entries 103, 104, 108 & 115)
This matter having come before the Court on Magistrate Judge Ch arles Binder’s Report
and Recommendation of March 25, 2010, and the Cour t having reviewed the file, the Magistrate
Judge’s Report and Recommendation, the parties’ objections and responses, and the parties’ oral
arguments, and the Court being otherwise fully informed in the premises,
NOW, THEREFORE,

IT IS HEREBY ORDERED that Magistrate Judge Binder’s Report and Recommendation of March 25, 2010 (Doc. Entry 115) sh all be adopted as the opinion of this Court in all respects, except with respect to his recommendations regarding Plaintiff’s motion to amend the complaint;
IT IS FURTHER ORDERED that the Defenda nts, Craig Hutchinson, M.D. and Bency Mathai, M.D.’s, motion for summary judgment (Doc. 103) shall be GRANTED and they shall be dismissed for lack of the requisite personal involvement;
IT IS FUR THER ORDERED that Defendant , Correctional Medical Services, Inc.’s motion for summary judgment (Doc. 103) be DENIED;
IT IS FURTHER ORDERED th at Defendants, Clark, Nayl or, Davis-Neighbors, Pandya, and Pramstaller’s motion for summary judgment (Doc. 104) be DENIED; and
IT IS FURTHER ORDE RED that Plaintiff’s motion to amend complaint to add custom and policy claim (Doc. 108) be DENIED.
IT IS SO ORDERED.

Dated: July 22, 2010 ANNA
Approved as to form:
s/Paul D. Reingold w/consent Paul D. Reingold (P27594) Attorney for Plaintiff

s/ Anna Diggs Taylor DIGGS TAYLOR
UNITED STATES DISTRICT JUDGE
s/Anthony D. Pignotti Anthony D. Pignotti (P71100) Attorney for Defendants, CMS, Dr. Hutchinson, and Dr. Mathai

s/Clifton B. Schneider w/consent Clifton B. Schneider (P70582) Attorney for MDOC Defendants

2

CERTIFICATE OF SERVICE The undersigned certifies that the foregoing Order was served upon counsel of record via the Court's ECF System to their respective email addresses or First Class U.S. mail disclosed on the Notice of Electronic Filing on July 22, 2010.
s/Johnetta M. Curry-Williams Case Manager
3

 
 1:07-cv-14644-TLL-CEB Doc # 146 Filed 05/30/12 Pg 1 of 2 Pg ID 1959

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION

DALLAS COBBS,

Plaintiff,

Case

v.

Honorable

No. 07-cv-14644 Thomas L. Ludington

GEORGE PRAMSTALLER et al.,

Defendants. ______________________________________ /

ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT GEORGE PRAMSTALLER

Pursuant to the opinion from the Sixth Ci rcuit Court of Appeal s filed on April 10, 2012

(ECF No. 143) reversing this Court’s denial of summa ry judgment to Defendant George

Pramstaller based on qu alified immunity and remanding the case for further p roceedings, and a

mandate filed on May 2, 2012 (ECF No. 144),

It is ORDERED that the m otion for summary judgment (ECF No. 104) is GRANTED

IN PART AND DENIED IN PART.

It is further ORDERED that summary judgment is entered in favor of Defendant George

Pramstaller.

It is furthe r ORDERED that the claim s against Defendant George Pram staller are

DISMISSED WITH PREJUDICE.

THOMAS United Dated: May 30, 2012

s/Thomas L. Ludington L. LUDINGTON
States District Judge

1:07-cv-14644-TLL-CEB Doc # 146 Filed 05/30/12 Pg 2 of 2 Pg ID 1960

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of record herein by electronic means or first class U.S. mail on May 30, 2012.

TRACY

s/Tracy A. Jacobs A. JACOBS

-2-

 
 Case: 10-2089 Document: 006110750182 Filed: 10/04/2010 Page: 1

No. 10-2089
In the UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Dallas Cobbs (State Prisoner no. 164276), Plaintiff-Appellee,
v. George Pramstaller,
Defendant-Appellant, and Craig Hutchinson, Marcella Clark, Gregory Naylor, Bency Mathai, Haresh Pandya, and Correctional Medical Services, Inc.,
Defendants.
Appeal from the United States District Court Eastern District of Michigan at Detroit Honorable Anna Diggs Taylor
BRIEF FOR DEFENDANT-APPELLANT
Michael A. Cox Attorney General

B. Eric Restuccia Solicitor General Co-Counsel of Record

Dated: October 4, 2010

Clifton Schneider Assistant Attorney General Co-Counsel of Record Attorneys for Defendant-Appellant Pramstaller Corrections Division P.O. Box 30217 Lansing, MI 48909 (517) 335-7021 SchneiderC1@michigan.gov

Case: 10-2089 Document: 006110750182 Filed: 10/04/2010 Page: 2
TABLE OF CONTENTS Page
Table of Authorities ................................................................................................. iii Statement in Support of Oral Argument .................................................................. vi Jurisdictional Statement .............................................................................................1 Statement of Issues Presented ....................................................................................2 Statement of the Case.................................................................................................3 Statement of Facts......................................................................................................5 Summary of Argument.............................................................................................24 Argument..................................................................................................................26 I. Pramstaller acted reasonably and did not any violation of clearly
established law – he is entitled to qualified immunity. .................................26 A. Standard of Review .................................................................................26 B. Analysis ...................................................................................................26 Conclusion ...............................................................................................................41 Addendum – Designation of Record on appeal .......................................................42 Certificate of Compliance ........................................................................................44 Proof of Service .......................................................................................................45
ii

Case: 10-2089 Document: 006110750182 Filed: 10/04/2010 Page: 3
TABLE OF AUTHORITIES
Page
Cases
Acord v. Brown, 1994 U.S. App. LEXIS 34320 (6th Cir. 1994) (unpublished) .............................29
Barrett v. Steubenville City Schs., 388 F.3d 967 (6th Cir. 2004) ................................................................................27
Blackmore v. Kalamazoo County, 390 F.3d 890 (6th Cir. 2004) ................................................................................31
Brown v. Bargery, 207 F.3d 863 (6th Cir. 2000) ................................................................................31
Comstock v. McCrary, 273 F.3d 693 (6th Cir. 2001) ................................................................................31
Daniels v. Williams, 474 U.S. 327; 106 S. Ct. 662; 88 L. Ed. 2d 662 (1986) .......................................31
Dietrich v. Burrows, 167 F.3d 1007 (6th Cir. 1999)..............................................................................26
Dorsey v. Barber, 517 F.3d 389 (6th Cir. 2008) ......................................................................... 29, 31
Dupuis v. Caskey, 2009 U.S. Dist. LEXIS 89002 (S.D. Miss. 2009) ......................................... 35, 36
Espinosa v. Saladin, 2009 U.S. Dist. LEXIS 87199 (W.D. Mich. 2009) ..............................................32
Estelle v. Gamble, 429 U.S. 97 (1976) .................................................................................. 29, 30, 31
Farmer v. Brennan, 511 U.S. 825 (1994) ...................................................................................... 30, 31
Gregory v. City of Louisville, 444 F.3d 725 (6th Cir. 2005) ................................................................................26 iii

Case: 10-2089 Document: 006110750182 Filed: 10/04/2010 Page: 4
Harlow v. Fitzgerald, 457 U.S. 800 (1982) .............................................................................................26
Helling v. McKinney, 509 U.S. 25 (1993) ...............................................................................................32
Hicks v. Frey, 992 F.2d 1450 (6th Cir. 1993)..............................................................................32
Higgason v. Stephens, 288 F.3d 868 (6th Cir. 2002) ................................................................................27
Hurt v. Mahon, 2009 U.S. Dist. LEXIS 79295 (E.D. Va. 2009) ...................................................32
Ivey v. Wilson, 832 F.2d 950 (6th Cir. 1987) ................................................................................30
Kennedy v. City of Cleveland, 797 F.2d 297 (6th Cir. 1986) ..................................................................................1
Lavado v. Keohane, 992 F.2d 601 (6th Cir. 1993) ................................................................................28
Leyser v. D'Amico, 182 Fed. Appx. 697 (9th Cir. 2006) (unpublished)..............................................34
McGhee v. Foltz, 852 F.2d 876 (6th Cir. 1988) ................................................................................31
Mitchell v. Forsyth, 472 U.S. 511 (1985) ........................................................................................ 1, 26
Noble v. Schmitt, 87 F.3d 157 (6th Cir. 1996) ........................................................................... 26, 27
O'Brien v. City of Grand Rapids, 23 F.3d 990 (6th Cir. 1994) ..................................................................................29
Pearson v. Callahan, 555 U.S. ___; 129 S. Ct. 808; 172 L. Ed. 2d 565 (2009).....................................28
Rhodes v. Chapman, 452 U.S. 337 (1981) .............................................................................................30 iv

Case: 10-2089 Document: 006110750182 Filed: 10/04/2010 Page: 5
Rich v. City of Mayfield Heights, 955 F.2d 1092 (6th Cir. 1992) ...............................................................................1
Rylee v. Bureau of Prisons, 2009 U.S. Dist. LEXIS 24609 (D.S.C. 2009) ......................................................35
Samonte v. Bauman, 264 Fed. Appx. 634 (9th Cir. 2008) (unpublished)..............................................33
Saucier v. Katz, 533 U.S. 194 (2001) ...................................................................................... 27, 29
Silberstein v. City of Dayton, 440 F.3d 306 (6th Cir. 2006) ................................................................................27
Stevenson v. Pramstaller, et al., no. 07-cv-14040, 2009 U.S. Dist. LEXIS 25495 (E.D. Mich. 2009)...................33
Walker v. Norris, 917 F.2d 1449 (6th Cir. 1990)..............................................................................31
Westlake v. Lucas, 537 F.2d 857 (6th Cir. 1976) ................................................................................30
Williams v. Mehra, 186 F.3d 685 (6th Cir. 1999) ................................................................................27
Williams v. Shelton, 2008 U.S. Dist. LEXIS 54394 (E.D. Or. 2008)....................................................34
Wilson v. Yaklich, 148 F.3d 596 (6th Cir. 1998) ................................................................................30
Statutes 28 U.S.C. § 1291......................................................................................................26 Rules 6th Cir. Rule 34........................................................................................................ vi
v

Case: 10-2089 Document: 006110750182 Filed: 10/04/2010 Page: 6
STATEMENT IN SUPPORT OF ORAL ARGUMENT The defendant-appellee believes that the issues in this case can be adequately addressed in the briefs, and oral argument is therefore not necessary. 6th Cir. Rule 34(j)(2)(C). Furthermore, should oral argument be requested by the Court, the defendant-appellee requests that oral argument be conducted by teleconference due to State budget and time constraints and the fact that the plaintiff is represented by a pro bono university law clinic. 6th Cir. Rule 34(h)(4).
vi

Case: 10-2089 Document: 006110750182 Filed: 10/04/2010 Page: 7
JURISDICTIONAL STATEMENT Plaintiff-Appellee Dallas Cobbs (hereafter Cobbs) is an inmate who sued pursuant to 42 U.S.C. § 1983 for alleged violations of his constitutional rights. The District Court had subject matter jurisdiction because Cobbs raised a federal question.1 Defendant-Appellant George Pramstaller (hereafter Pramstaller) appeals the District Court's decision to deny his dispositive motion based on qualified immunity. Denial of a motion based on qualified immunity is immediately appealable under the collateral-order doctrine.2 Thus, the District Court's decision is properly before this Court pursuant to 28 U.S.C. § 1291. The District Court's Order denying Pramstaller's dispositive motion was entered on July 22, 2010. [R. 133]. Pramstaller's notice of appeal was filed on August 20, 2010. [R. 138]. Pramstaller's appeal is therefore timely.
1 28 U.S.C. § 1331. 2 Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); Rich v. City of Mayfield Heights, 955 F.2d 1092, 1094 (6th Cir. 1992); Kennedy v. City of Cleveland, 797 F.2d 297 (6th Cir. 1986).
1

Case: 10-2089 Document: 006110750182 Filed: 10/04/2010 Page: 8
STATEMENT OF ISSUES PRESENTED I. A prison doctor is not liable under the Eighth Amendment merely for
disagreeing with another doctor about a proposed course of care. No controlling authority has found that a cataract surgery is a serious medical need or that a doctor is liable for failure to authorize a second-eye cataract surgery. Is a prison doctor who heads a medical committee that did not authorize a second-eye cataract surgery entitled to qualified immunity even though the prisoner's eye doctors recommended the surgery?
2

Case: 10-2089 Document: 006110750182 Filed: 10/04/2010 Page: 9
STATEMENT OF THE CASE This is a 42 U.S.C. § 1983 prisoner civil-rights action that was filed pro se on October 30, 2007, by Dallas Cobbs (hereafter Cobbs). [Complaint, R. 1]. Cobbs filed this suit alleging that his Eighth Amendment rights were violated when the Michigan Department of Corrections paid for a cataract surgery for one of his eyes but not the other. Cobbs secured counsel in March 2008. [Attorney Appearance, R. 27]. Defendant George Pramstaller (hereafter Pramstaller), along with other Michigan Department of Corrections defendants, filed a motion for summary judgment on December 1, 2009. [Motion for Summary Judgment, R. 104]. Correctional Medical Services defendants also filed a motion for summary judgment on that date. [Motion for Summary Judgment, R. 103]. Cobbs responded to both motions on December 23, 2009. [Response, R. 106]. On March 25, 2010, the Magistrate Judge entered a Report and Recommendation recommending that Pramstaller's motion for summary judgment be denied. [Report and Recommendation, R. 115]. All parties filed objections to the Report and Recommendation. [Objections, R. 116, 117, 119]. Cobbs responded to Pramstaller's objections on April 21, 2010. [Response, R. 123]. The District Court held oral arguments on all objections on July 12, 2010. [Notice to Appear, R. 130]. The transcript is on file in the District Court. [Transcript, R.
3

Case: 10-2089 Document: 006110750182 Filed: 10/04/2010 Page: 10
134]. On July 22, 2010, the District Court entered its Order Adopting in Part and Rejecting in Part the Report and Recommendation. [Order, R. 133]. As to the claim against Pramstaller, the District Court adopted the Report and Recommendation and denied Pramstaller's motion for summary judgment based on qualified immunity. Pramstaller filed his notice of appeal on August 20, 2010. [Notice of Appeal, R. 138].
4

Case: 10-2089 Document: 006110750182 Filed: 10/04/2010 Page: 11
STATEMENT OF FACTS3 This case involves the medical care of an inmate housed in the Michigan Department of Corrections; the relevant dates of treatment occurred between 2004 and 2008. During that time, Correctional Medical Services, Inc. (hereafter CMS), was contracted by the State of Michigan to provide primary-care services to state inmates. Prison policy explains the responsibilities of CMS and other healthcare entities. Michigan Department of Corrections Operating Procedure 03.04.100 provides that the medical service provider at each facility is responsible for providing all necessary prisoner medical care within their level of expertise and the capabilities of the respective facility. [R. 103, Exhibit H, ¶ B]. If the level of care that a prisoner requires is beyond the primary level of care provided at his institution, the medical service provider is responsible for making referral to the Network Provider for offsite specialty care. [R. 103, Exhibit H, ¶ C]. In the present case, the Network Provider was CMS. [R. 103, Exhibit I, pages 18-19]. CMS was responsible for receiving the referral request from the medical service provider and screening it against approved Michigan Department of Corrections criteria for the provision of off-site specialty care. [R. 103, Exhibit H, ¶ E(3)]. In the present case, the referral request was first reviewed by a CMS utilization-
3 The statement of facts is taken in large part from R. 103, pages 1-16. 5

Case: 10-2089 Document: 006110750182 Filed: 10/04/2010 Page: 12
review nurse, who screened the request to determine if it was clearly medically necessary based on the nurse's review of certain criteria. [R. 103, Exhibit C, page 16]. The nurse could authorize the referral if the request was clearly medically necessary, or the nurse could pend the request4 for additional information, but utilization-review nurses did not have the authority to not authorize a request; only a physician could not authorize a request. [R. 103, Exhibit C, pages 16-17].
If the referral request did not meet the criteria, CMS's utilization-review nurse referred the request to its utilization-review physician. [R. 103, Exhibit H, ¶ E(8)]. The utilization-review physician then reviewed the case and made a determination. [R. 103, Exhibit H, ¶ E(9)].
If the request was not authorized by the utilization-review physician, the medical service provider could then initiate the appeals process if the medical service provider believed that the non-approval was unwarranted in the medical service provider's best medical judgment. [R. 103, Exhibit H, ¶ E(11)]. CMS's utilization-review physician would then again review the appeal and any additional documentation submitted with it. [R. 103, Exhibit H, ¶ E(15)].
If an appealed request was again not authorized and the MSP disagreed with the non-authorization, the MSP could then forward the second-step appeal to the MDOC Regional Medical Officer. [R. 103, Exhibit H, ¶ E(20)]. The Regional 4 "Pending" a request is putting it on hold while additional information is requested.
6

Case: 10-2089 Document: 006110750182 Filed: 10/04/2010 Page: 13
Medical Officer then reviewed the appeal for completeness and forwarded it to the Chief Medical Officer of the Michigan Department of Corrections, which in this case was Dr. Pramstaller, with a request that the case be placed on the next Medical Services Advisory Committee agenda. [R. 103, Exhibit H, ¶¶ E(21, 22)].
The Medical Services Advisory Committee was chaired by the Chief Medical Officer; it also consisted of the Regional Medical Officers, the Director of Medical Services at Duane L. Waters Hospital, and others as determined by the Bureau of Health Care Services. [R. 103, Exhibit G, ¶ L]. The Chief Medical Officer had the ultimate authority to decide the outcome of the second appeal. [R. 103, Exhibit H, ¶ E(26); Exhibit C, pages 60-61].
On March 31, 2004, Cobbs underwent an optometric vision screening with Michael McGrath, O.D., an optometrist. [R. 103, Exhibit F, pages 136, 370]. Cobbs's visual acuity5 in his right eye was 20/200, and his best corrected visual
5 "Visual acuity" is a "measure of the resolving power of the eye. It is usually determined by one's ability to read letters of various sizes at a standard distance from the test chart. The result is expressed as a comparison: for example, 20/20 is normal vision, meaning the subject's eye has the ability to see from a distance of 20 ft (6.1m) what a person with normal vision should see at that distance. Visual acuity of 20/40 means that a person sees at 20 ft (6.1m) what a person with normal vision sees from a distance of 40ft (12.2m)." TABER'S CYCLOPEDIC MEDICAL DICTIONARY (Donald Venes ed., 21st Edition, 2009).
7

Case: 10-2089 Document: 006110750182 Filed: 10/04/2010 Page: 14
acuity in his left eye was 20/40. [R. 103, Exhibit F, page 370]. Dr. McGrath assessed Cobbs with bilateral cataracts.6 [R. 103, Exhibit F, page 370].
Dr. McGrath submitted a routine consultation request to CMS's utilizationreview department for Cobbs to see an ophthalmologist within one month. [R. 103, Exhibit F, page 353]. On April 1, 2004, Dr. DeMasi, a utilization-review physician employed by CMS, responded that the ophthalmology consultation was not authorized because Cobbs still had a best corrected overall visual acuity of 20/40. [R. 103, Exhibit F, page 350].
On May 10, 2004, Paul Piper, M.D., Cobbs's medical service provider at Ryan Correctional Facility, initiated an appeal of the April 1, 2004, denial, noting that Cobbs's visual acuity in his right eye had changed from 20/20 to 2/200 due to a dense, right-eye cataract. [R. 103, Exhibit F, page 350]. On May 12, 2004, Dr. DeMasi responded to the appeal and again explained that the request was not authorized because Cobbs's visual acuity in his left eye was still 20/40. [R. 103, Exhibit F, page 350]. On May 12, 2004, Dr. Piper noted in the progress notes that the "ophthalmology referral denied by Dr. DeMasi-CMS as inmate is legally blind
6 "Cataract" is "an opacity of the lens of the eye." TABER'S CYCLOPEDIC MEDICAL DICTIONARY (Donald Venes ed., 21st Edition, 2009).
8

Case: 10-2089 Document: 006110750182 Filed: 10/04/2010 Page: 15
in O.D.7 from dense cataract and has 20/40 vision O.S.8 I think cataract surg[ery] is indicated if it will correct vision." [R. 103, Exhibit F, page 134].
On May 18, 2004, Dr. Piper completed the next step in the MDOC appeal process by completing an appeal form, which was sent to the Regional Medical Director employed by the MDOC, Dr. Clark. [R. 103, Exhibit F, pages 134, 490]. On June 22, 2004, Dr. Clark forwarded the appeal to the MDOC's Medical Services Advisory Committee. The committee conducted a meeting during which it discussed Cobbs's ophthalmology consultation request. [R. 103, Exhibit F, pages 349, 350]. The committee decided that Cobbs should be approved for cataract surgery on his right eye based upon his "lifer status." [R. 103, Exhibit F, pages 349, 350].
On July 27, 2004, Cobbs received an ophthalmology consultation with Ghulam Dastgir, M.D. [R. 103, Exhibit F, pages 132, 341-342, 348]. Cobbs's best corrected visual acuity was hand motion to finger counting at one-half foot in his right eye and 20/70 in the left eye. [R. 103, Exhibit F, pages 341-342]. Dr. Dastgir assessed Cobbs with (1) a hypermature cataract of the right eye and (2) a dense posterior subcapsular cataract in the left eye. [R. 103, Exhibit F, pages 341-342]. Dr. Dastgir recommended an A and B scan of Cobbs's right and left eyes at the 7 "O.D." is an optometric abbreviation for "right eye." TABER'S CYCLOPEDIC MEDICAL DICTIONARY (Donald Venes ed., 21st Edition, 2009). 8 "O.S." is an optometric abbreviation for "left eye." TABER'S CYCLOPEDIC MEDICAL DICTIONARY (Donald Venes ed., 21st Edition, 2009).
9

Case: 10-2089 Document: 006110750182 Filed: 10/04/2010 Page: 16
Parkside Eye Clinic and cataract extraction with lens implants in both eyes, the right eye being first. [R. 103, Exhibit F, pages 341-342]. Dr. Dastgir also scheduled Cobbs to have both surgeries, although the Medical Services Advisory Committee had authorized surgery in the right eye only. [R. 103, Exhibit F, pages 341-42].
On July 29, 2004, Dr. Piper submitted a routine authorization request for Cobbs to undergo bilateral cataract extractions with lens implants. [R. 103, Exhibit F, page 345]. On August 3, 2004, the request for A and B scans of Cobbs's right eye and the cataract extraction of his right eye with a lens implant was nonauthorized by Dr. Forshee, 9 another utilization-review physician for CMS. [R. 103, Exhibit F, page 344]. Dr. Forshee authorized the A scan of Cobbs's left eye, cataract removal in his left eye with lens implant, a one day post-op follow-up, and a one week follow-up appointment.10 [R. 103, Exhibit F, page 344].
On August 23, 2004, Cobbs underwent A and B scans of his right eye and an A scan of his left eye at the Parkside Eye Clinic. [R. 103, Exhibit F, page 337]. On August 30, 2004, Cobbs underwent cataract surgery on his right eye. [R. 103, Exhibit F, page 131]. On August 31, 2004, Cobbs returned to see Dr. Dastgir for
9 It appears that Dr. Forshee meant to deny the scans and the cataract extraction of the left eye, even though he indicated that his denial was with respect to the right eye. 10 Again, it appears that Dr. Forshee confused the right and left eye and intended to authorize the A scan and cataract extraction of the right eye.
10

Case: 10-2089 Document: 006110750182 Filed: 10/04/2010 Page: 17
his one-day follow-up, as scheduled, and his visual acuity in his right eye had improved to 20/70 without correction. [R. 103, Exhibit F, page 333]. Dr. Dastgir then assessed Cobbs with (1) pseudophakia11 of the right eye and (2) dense posterior subcapsular cataract of the left eye. [R. 103, Exhibit F, page 333]. Dr. Dastgir requested that Cobbs be brought back for cataract extraction with lens implant in his left eye. [R. 103, Exhibit F, page 333].
On September 15, 2004, Cobbs again saw Dr. McGrath for an optometric examination. [R. 103, Exhibit F, page 369]. Dr. McGrath noted that Cobbs had cataract surgery on his right eye two weeks ago and that he was a candidate for cataract surgery on his left eye. [R. 103, Exhibit F, page 369].
On October 7, 2004, Dr. Piper submitted a routine consultation request for Cobbs to see the ophthalmologist, as recommended by Dr. Dastgir. [R. 103, Exhibit F, page 328]. On October 11, 2004, the consultation request was pended by Dr. Forshee, who noted that the request was sent to the Medical Services Advisory Committee for evaluation. [R. 103, Exhibit F, page 329]. On October 26, 2004, the Medical Services Advisory Committee conducted a meeting during which it discussed the request for an extraction of Cobbs's left-eye cataract. [R. 103, Exhibit F, page 326]. Dr. Pramstaller then issued a memorandum directing
11 "Pseudophakia" is the "condition in which an artificial lens has been implanted in the eye, e.g., after cataract surgery to remove a cloudy lens." TABER'S CYCLOPEDIC MEDICAL DICTIONARY (Donald Venes ed., 21st Edition, 2009).
11

Case: 10-2089 Document: 006110750182 Filed: 10/04/2010 Page: 18
that the request for a cataract extraction for Cobbs's left eye was not approved. [R. 103, Exhibit F, page 326].
On May 10, 2005, Cobbs saw Sean Connolly, O.D., another optometrist at the Ryan Correctional Facility, for an optometric evaluation. [R. 103, Exhibit F, page 368]. Dr. Connolly noted that Cobbs wanted cataract surgery on his left eye. [R. 103, Exhibit F, page 368]. Dr. Connolly then submitted a routine specialty consultation request for Cobbs to be evaluated for cataracts and possible surgery, noting that Cobbs's best corrected visual acuity was 20/30. [R. 103, Exhibit F, page 325].
On May 18, 2005, the ophthalmology consultation request was pended with a request for the optometry notes from May 10, 2005. [R. 103, Exhibit F, page 323]. On May 31, 2005, after Dr. Connolly's optometry notes were submitted to CMS' utilization review department, the ophthalmology consultation was nonauthorized by Keith Ivens, M.D., a utilization-review physician for CMS, because the Medical Services Advisory Committee had already denied the surgery on October 26, 2004. [R. 103, Exhibit F, page 323].
Cobbs was next seen on December 14, 2005, by Dr. McGrath, who recommended that Cobbs receive cataract surgery on his left eye. [R. 103, Exhibit F, page 124]. Dr. McGrath submitted a routine ophthalmology consultation request, noting that Cobbs's best corrected vision in his left eye was only 20/600
12

Case: 10-2089 Document: 006110750182 Filed: 10/04/2010 Page: 19
and that he had trouble with depth perception; Dr. McGrath also noted that it was not possible to view the lens or retina in Cobbs's left eye and that Cobbs alleged he walked into an object on his left side. [R. 103, Exhibit F, page 322]. On December 27, 2005, the ophthalmology consultation was non-authorized by Dr. Ivens because Cobbs responded well to the surgery on his right eye, thereby providing excellent best corrected visual acuity, and the Medical Services Advisory Committee had already reviewed Cobbs's case and denied the left-eye cataract surgery. [R. 103, Exhibit F, page 321].
On January 11, 2006, Dr. McGrath noted that Cobbs should return to optometry in two months to rule out secondary glaucoma. [R. 103, Exhibit F, page 321]. Two months later, on March 1, 2006, Cobbs returned to see Dr. McGrath for a follow-up optometry examination. [R. 103, Exhibit F, page 367]. Cobbs's visual acuity in his right eye was 20/20, and his left eye was 20/CF.12 [R. 103, Exhibit F, page 367]. Dr. McGrath then submitted another routine ophthalmology consultation request for Cobbs to have cataract surgery to remove his left-eye cataract. [R. 103, Exhibit F, page 320]. Dr. McGrath noted that Cobbs had a dense left-eye cataract with possible secondary glaucoma as a risk factor. [R. 103, Exhibit F, page 320].
12 "CF" is an abbreviation for counting fingers. 13

Case: 10-2089 Document: 006110750182 Filed: 10/04/2010 Page: 20
On March 15, 2006, the ophthalmology request was again non-authorized by Dr. Ivens because Cobbs responded well to the right-eye surgery with a best corrected visual acuity of 20/20 and the Medical Services Advisory Committee had already reviewed the case and had already denied another ophthalmology consultation. [R. 103, Exhibit F, page 314]. On March 29, 2006, Dr. McGrath appealed the non-authorization, stating that surgery was advised to prevent secondary glaucoma and that it was not possible to visually examine the back of Cobbs's eye because his left retina was not visible. [R. 103, Exhibit F, page 314]. On April 3, 2006, the request was pended by Dr. Ivens and was sent back to the Medical Services Advisory Committee for review. [R. 103, Exhibit F, page 314].
On April 25, 2006, Dr. Pramstaller issued a memo directing that the previous non-approval of another ophthalmology consult was upheld. [R. 103, Exhibit F, page 313]. The memo also directed that Cobbs's intraocular pressure13 should be monitored closely to rule out glaucoma and that a request should be resubmitted if the pressure increased.14 [R. 103, Exhibit F, page 313].
13 Intraocular pressure is measured in mmHg (millimeters of mercury). The normal range for intraocular pressure is 10-21 mmHg. "Tonometry," National Institutes of Health, http://www.nlm.nih.gov/MEDLINEPLUS/ency/article/003447.htm. Measuring the intraocular pressure is one of two ways to evaluate a patient for glaucoma. [R. 103, Exhibit C, page 103]. 14 Cobbs's intraocular pressure never became abnormal in his left eye, and he never developed glaucoma.
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On July 27, 2006, Cobbs was seen by Dr. Piper, who noted that Cobbs had markedly decreased vision in his left eye and that a review of the medical chart revealed a deterioration of vision in the left eye from 20/40 in 2004 to 20/400 in December, 2005. [R. 103, Exhibit F, page 122]. Dr. Piper then submitted a routine ophthalmology request, noting that Cobbs had a presumed diagnosis of decreased vision in his left eye with a cataract. [R. 103, Exhibit F, page 312]. On August 8, 2006, the authorization request was pended by Brenda Jones, RN, a utilization review nurse, with a request for more information as follows: "Dr. Piper – MSAC not authorized ophthalmology for Lt eye cataract on 4-25-06. Did you (the prison) receive that information? If not, I could resend it. Would you like to withdraw?" [R. 103, Exhibit F, page 307]. Dr. Piper responded that same day that according to the optometrist, Cobbs's vision in his left eye has deteriorated significantly secondary to cataract and that he did not see anything in the chart from the Medical Services Advisory Committee dated 4/25/06. [R. 103, Exhibit F, page 307]. On August 11, 2006, the authorization request was again pended by RN Jones, noting that the April 2006 decision form and the Medical Services Advisory Committee memorandum were faxed to Dr. Piper. [R. 103, Exhibit F, page 307]. Dr. Piper did not pursue the authorization request further, and it was automatically denied for lack of a response. [R. 103, Exhibit F, page 307].
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On December 4, 2006, Dr. Piper performed a medical-chart review and noted that he would refer Cobbs to the optometrist to measure his eye pressure to determine any significant increase since the previous year, as recommended by Dr. Pramstaller on 4/25/06. [R. 103, Exhibit F, pages 114, 313]. On December 13, 2006, Cobbs had an optometry examination with Dr. McGrath. [R. 103, Exhibit F, page 365]. Cobbs's visual acuity in his right eye was 20/20. [R. 103, Exhibit F, page 365]. Dr. McGrath noted that he had no view of Cobbs's left eye, which had a visual acuity of CF. [R. 103, Exhibit F, page 365]. Cobbs's intraocular pressure in both his right and left eyes was 11 mmHg, which was well within the normal range. [R. 103, Exhibit F, page 364]. Dr. McGrath assessed Cobbs with a left-eye cataract and recommended that Cobbs be referred to the ophthalmologist. [R. 103, Exhibit F, page 365]. On that same day, Dr. McGrath submitted a routine ophthalmology consultation authorization request form, noting that Cobbs had a dense cataract on his left eye and that he could not view Cobbs's retina. [R. 103, Exhibit F, page 297]. Dr. McGrath also noted that Cobbs developed anemia and that the health of his left eye could not be evaluated.15 [R. 103, Exhibit F, page 297].
15 Dr. McGrath testified at his deposition that his concern for the health of the left eye concerned evaluation for glaucoma and retinopathy. Dr. McGrath stated that he was able to adequately monitor Cobbs's eye for glaucoma by monitoring his interocular eye pressure, which always remained within normal range. Cobbs was not a threat for diabetic retinopathy because he did not have diabetes. Non-
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On February 14, 2007, it was noted that the ophthalmology request dated December 13, 2006, was received on February 6, 2007. [R. 103, Exhibit F, page 355]. The authorization request was pended by RN Jones as follows: "Is there an optometry exam from 12/13/06? Need visual acuity." [R. 103, Exhibit F, page 355]. On February 21, 2007, the December 12, 2006 authorization request was pended again by Dr. Hutchinson, who requested a translation of a word on the authorization request form. [R. 103, Exhibit F, page 355]. On February 28, 2007, Dr. McGrath responded by noting that the word was "anemia." [R. 103, Exhibit F, page 355]. On March 6, 2007, the ophthalmology request was non-authorized by Dr. Hutchinson because Cobbs's visual acuity in his right eye was 20/20. [R. 103, Exhibit F, page 354].
On May 30, 2007, Cobbs had another optometry examination with Dr. McGrath. [R. 103, Exhibit F, page 364]. Cobbs reported to Dr. McGrath that he experienced monocular double vision, in his right eye, for the past two months. [R. 103, Exhibit F, page 364]. Dr. McGrath then examined Cobbs's eyes and determined that he had a slight secondary cataract on his right eye and a dense cataract on his left eye. [R. 103, Exhibit F, page 364]. Cobbs's visual acuity in his right eye was 20/50, and his visual acuity in his left eye was CF. [R. 103, Exhibit
diabetic retinopathy is rare, and even rarer in only one eye; therefore McGrath could adequately monitor Cobbs's corrected eye for retinopathy. Cobbs never developed either glaucoma or retinopathy. [R. 103, Exhibit D, pages 130-132].
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Case: 10-2089 Document: 006110750182 Filed: 10/04/2010 Page: 24
F, page 364]. Cobbs's intraocular pressure in each eye was measured twice and revealed readings of 13 mmHg then 14 mmHg in each eye, within normal limits. [R. 103, Exhibit F, page 364]. Dr. McGrath then determined that Cobbs should be referred to ophthalmology, and he submitted an ophthalmology consultation request form, noting that Cobbs had decreased vision in his right eye and a dense cataract in his left eye. [R. 103, Exhibit F, pages 364, 240]. The request did not mention Cobbs's complaint of monocular double vision in his right eye.16 [R. 103, Exhibit F, page 240].
On June 15, 2007, Dr. Ivens non-authorized the ophthalmology consult request on the grounds that no reason was given for an appeal of the previous decision to not authorize an ophthalmology request form based on the Medical Services Advisory Committee's decision. [R. 103, Exhibit F, page 293].
On July 15, 2007, Dr. McGrath responded that he could not view Cobbs's retina to evaluate the health of Cobbs's left eye due to a dense cataract. [R. 103, Exhibit F, page 293]. On July 19, 2007, the authorization request was pended by RN Jones for the reason that an ophthalmology consultation for Cobbs's left eye was already denied on two occasions and that Dr. McGrath's next step was to appeal it to the Michigan Department of Corrections' Regional Medical Officer and
16 Dr. McGrath testified at his deposition that Cobbs's reported monocular double vision was not affected by the cataract in his left eye. [R. 103, Exhibit D, pages 130-132].
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Medical Services Advisory Committee. [R. 103, Exhibit F, page 293]. Dr. McGrath did not appeal the consultation request to the Regional Medical Officer or the Medical Services Advisory Committee.
On September 31, 2007, Cobbs submitted a kite regarding his eye, and an appointment with a nurse was scheduled for October 5, 2007. [R. 103, Exhibit F, page 113]. On October 5, 2007, Cobbs saw Linda Butts, RN, as scheduled. [R. 103, Exhibit F, page 64]. Nurse Butts noted that Cobbs complained of frequent episodes of eye strain, which sometimes caused him to have headaches, as well as episodes of blurry vision. [R. 103, Exhibit F, page 64]. RN Butts then gave Cobbs an eye patch to wear over his left eye. [R. 103, Exhibit F, page 64].
On November 8, 2007, Cobbs submitted another kite regarding his left eye, and nursing noted that he had an appointment scheduled with a nurse on November 13, 2007. [R. 103, Exhibit F, page 113]. On November 13, 2007, Cobbs was again seen by RN Butts, as scheduled. [R. 103, Exhibit F, page 61]. Cobbs complained that he had headaches that he believed were caused by the strain that he experienced from trying to see out of his right eye only. [R. 103, Exhibit F, page 61]. Cobbs also stated that he reads a lot. [R. 103, Exhibit F, page 61]. RN Butts prescribed acetaminophen and instructed Cobbs to decrease his reading time, take frequent breaks, and blink while reading to reduce the strain. [R. 103, Exhibit F, page 61].
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On February 6, 2008, Cobbs was again seen by Dr. McGrath for an optometry examination, and Dr. McGrath noted that Cobbs was wearing an eye patch on his left eye due to his cataract. [R. 103, Exhibit F, page 363]. Cobbs's visual acuity in his right eye was 20/30 after laser surgery, and his visual acuity in his left eye was CF. [R. 103, Exhibit F, page 363]. Cobbs's intraocular pressure in both eyes was 14 mmHg. [R. 103, Exhibit F, page 363]. Dr. McGrath submitted another routine ophthalmology consultation request form, noting that Cobbs now complained of binocular double vision. [R. 103, Exhibit F, page 180]. On February 12, 2008, the ophthalmology consultation request was approved by Dr. Ivens because Cobbs appeared to have binocular double vision, and an appointment was scheduled for Cobbs to see Dr. Dastgir on February 26, 2008. [R. 103, Exhibit F, page 180].
On February 26, 2008, Cobbs had an ophthalmology consultation with Dr. Dastgir as scheduled. [R. 103, Exhibit F, pages 35-36]. Cobbs's visual acuity in his right eye decreased to 20/50, and he experienced barely light perception in his left eye at one-quarter foot. [R. 103, Exhibit F, pages 35-36]. Dr. Dastgir assessed Cobbs with (1) hypermature chalk white cataract of the left eye with inability to see the fundus,17 (2) pseudophakia of the right eye, and (3) diplopia18 due to
17 The "fundus" is the "posterior part of the eye including the retina and optic nerve." TABER'S CYCLOPEDIC MEDICAL DICTIONARY (Donald Venes ed., 21st Edition, 2009).
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exotropia19 of the left eye. [R. 103, Exhibit F, pages 35-36]. Dr. Dastgir
recommended A and B scans of Cobbs's left eye and cataract extraction of the left
eye with lens implant. [R. 103, Exhibit F, pages 35-36].
On March 10, 2008, Dr. Piper submitted a consultation request for the
procedures recommended by Dr. Dastgir. [R. 103, Exhibit F, pages 31, 32]. On
March 14, 2008, the consultation request and two post-operative, follow-up
appointments, were approved at the request of the Medical Services Advisory
Committee due to the decrease in Cobbs's best visual acuity to 20/50 and in
consideration of his complaints of double vision.20 [R. 103, Exhibit F, page 32].
18 "Diplopia" is a synonym for "double vision." TABER'S CYCLOPEDIC MEDICAL DICTIONARY (Donald Venes ed., 21st Edition, 2009). 19 "Exotropia" refers to an "abnormal turning outward of one or both eyes." TABER'S CYCLOPEDIC MEDICAL DICTIONARY (Donald Venes ed., 21st Edition, 2009). 20 It should be noted that Cobbs's second-eye cataract surgery was authorized at the same or at a less advanced stage than is required by other similar organizations, as well as organizations providing coverage for procedures for un-incarcerated persons. According to the Federal Bureau of Prisons' guidelines, for example, a prisoner may only receive second eye cataract surgery if they have a documented, best corrected visual acuity of 20/100 or worse, or under certain exceptional circumstances. [R. 103, Exhibit J]. Cobbs did not meet these requirements. According to the policy established by Aetna, a leading national insurance company, cataract surgery is considered medically necessary for members with a visual acuity of 20/50 or worse if the member perceives that his ability to carry out daily functions (i.e., driving, watching television, occupation/vocational needs, etc.) is impaired, the member has a visual acuity of 20/50 or worse in the affected eye, and the member is educated about the risks and benefits of cataract surgery as well as alternatives, or if the member has some other condition, such as a lensinduced disease (e.g., certain types of glaucoma) or there is a need to visualize the retina in patients with conditions such as diabetes. [R. 103, Exhibit K]. Finally,
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On April 14, 2008, Cobbs underwent a cataract extraction and lens implant on his
left eye. [R. 103, Exhibit F, page 190]. Follow-up visits were also completed,
some to fix a leaking wound site. [R. 103, Exhibit F, pages 4, 14, 16, 108, 111,
176, 183, 187, 189, 190, 192, 196, 362]. After surgery and suture removal,
Cobbs's visual acuity in both his right and left eyes was 20/25. [R. 103, Exhibit F,
pages 183, 362].
In his deposition, Dr. Pramstaller explained that cases brought before the
Medical Services Advisory Committee were reviewed on a case-by-case basis;
each case is considered individually. [R. 103, Exhibit I, page 77]. In determining
whether to authorize a second-eye cataract, it was determined whether it was
medically necessary to authorize the surgery immediately or whether it could be
deferred to a later date without any danger to the patient or any adverse effect on
the ability to perform the surgery at a later date. [R. 103, Exhibit I, pages 52-53].
according to the Local Coverage Determination guidelines established by the Centers for Medicare and Medicaid Services, which are applicable to Medicare/Medicaid eligible persons in Michigan, cataract removal surgery is medically necessary for patients who have decreased ability to carry out activities of daily living (e.g., reading, watching television, driving, or meeting occupational/vocational expectations), a visual acuity of 20/50 or worse, the patient has determined that he can no longer function adequately with the current visual function, other eye diseases have been ruled out as the primary cause of visual function, significant improvement in visual function can be expected as a result of the surgery, the patient has been educated about the risks and benefits of cataract surgery and alternatives, and the patient has undergone an appropriate preoperative ophthalmologic evaluation. [R. 103, Exhibit L]. In the present case, Cobbs received his second-eye surgery when the Medical Services Advisory Committee received information indicating that his condition met these criteria.
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Case: 10-2089 Document: 006110750182 Filed: 10/04/2010 Page: 29
Dr. Pramstaller explained that the conditions that would put the patient at risk if the surgery was not authorized are (1) diabetic retinopathy, (2) posterior subcapsular glare, and (3) great discrepancy in vision. [R. 103, Exhibit I, pages 54-58]. Dr. Pramstaller explained that if a patient had one of the three conditions outlined above, cataract surgery would be authorized. [R. 103, Exhibit I, page 76]. Dr. Pramstaller also explained that if none of the above three conditions are a concern for a patient with a second-eye cataract, the risk of harm to the patient is minimal. [R. 103, Exhibit I, page 80]. Dr. Pramstaller developed these criteria in conjunction with ophthalmologists. [R. 103, Exhibit I, page 81].
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SUMMARY OF ARGUMENT Pramstaller was the head of the Medical Services Advisory Committee. When a prisoner's treating physician requests specialty care that requires travel outside the prison, approval is required. The final step in the appeal process for specialty care that has been non-approved is appeal to the Medical Services Advisory Committee. The requesting physician is responsible for providing the committee with the information needed to make a decision – in this case, handwritten notes on the appeal form plus the most recent page of the optometry note from the most recent visit were provided to the committee. The Medical Services Advisory Committee non-authorized a second-eye cataract surgery for Cobbs in October 2004 and April 2006. The nonauthorizations were based on established criteria and the members' medical judgment. A group of doctors met and considered the medical necessity of the requested care. The committee disagreed with the requesting physicians. Such does not equate to deliberate indifference, as careful committee consideration with open deliberation is the opposite of indifference. There is no clearly established authority holding that failure to provide a second-eye cataract surgery violates a prisoner's rights – Cobbs's cataract was not a serious medical condition, and Pramstaller was never aware of any serious medical condition arising from the cataract. Pramstaller acted reasonably in considering
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Case: 10-2089 Document: 006110750182 Filed: 10/04/2010 Page: 31
the case and ordering that Cobbs's condition be monitored to ensure that no riskprone condition or situation developed. Pramstaller is therefore entitled to qualified immunity.
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Case: 10-2089 Document: 006110750182 Filed: 10/04/2010 Page: 32
ARGUMENT I. Pramstaller acted reasonably and did not any violation of clearly
established law – he is entitled to qualified immunity. A. Standard of Review This Court reviews a district court's denial of qualified immunity de novo.21 The appeal of a denial of qualified immunity at summary judgment is an interlocutory appeal that this Court hears as a final decision of the district court under 28 U.S.C. § 1291 pursuant to the "collateral order" doctrine.22 B. Analysis Officials or employees of the Michigan Department of Corrections who are sued in their individual capacities "are shielded 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."23 This Circuit applies a three-part test to determine whether a government official is entitled to the defense of qualified immunity: (1) whether a constitutional violation has occurred; (2) whether the right that was violated was a clearly established right of which a reasonable person would have known; and (3) whether the plaintiff has alleged sufficient facts, and supported the allegations by sufficient evidence, to indicate that what the official allegedly did was objectively 21 Gregory v. City of Louisville, 444 F.3d 725, 742 (6th Cir. 2005). 22 Mitchell, 472 U.S. at 525-27. 23 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Dietrich v. Burrows, 167 F.3d 1007, 1012 (6th Cir. 1999); Noble v. Schmitt, 87 F.3d 157, 160 (6th Cir. 1996).
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Case: 10-2089 Document: 006110750182 Filed: 10/04/2010 Page: 33
unreasonable in light of the clearly established constitutional rights.24 If a violation could be made out on a favorable view of the parties' submissions, the next, sequential step "is to ask whether the right was clearly established," and "this inquiry, it is vital to note, must be undertaken in light of the specific context of the case, not as a broad general proposition."25 "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation that he confronted."26
While the defendants bear the initial burden of presenting facts that, if true, would entitle them to immunity, the ultimate burden of proof falls on the plaintiff to show that the defendants violated a right so clearly established that any official in the defendants' positions would have clearly understood that he was under an affirmative duty to refrain from such conduct.27 "Once the qualified immunity defense is raised, the burden is on the plaintiff to demonstrate that the officials are not entitled to qualified immunity."28 The plaintiff also has the burden of showing that a right is clearly established.29
24 Saucier v. Katz, 533 U.S. 194, 201-02 (2001); Higgason v. Stephens, 288 F.3d 868, 876-77 (6th Cir. 2002); Williams v. Mehra, 186 F.3d 685, 690 (6th Cir. 1999). 25 Saucier, 533 U.S. at 201. 26 Saucier, 533 U.S. at 201. 27 Noble, 87 F.3d at 161. 28 Silberstein v. City of Dayton, 440 F.3d 306, 311 (6th Cir. 2006). 29 Barrett v. Steubenville City Schs., 388 F.3d 967, 970 (6th Cir. 2004).
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The Supreme Court recently altered the qualified-immunity analysis.30 In Pearson v. Callahan, the Court held that courts do not have to adhere to the rigid two-step analysis set forth in Saucier v. Katz. Instead, courts have the discretion to decide whether, under the facts of the case before them, there is a violation of a constitutional right, or first go to the second prong and decide whether the defendant's actions violated clearly established law.31
This Court, in Lavado v. Keohane, set forth the test for finding a clearly established constitutional right:
[T]o find a clearly established constitutional right, a district court must find binding precedent by the Supreme Court, its court of appeals or itself. In an extraordinary case, it may be possible for the decisions of other courts to clearly establish a principle of law. For the decisions of other courts to provide such "clearly established law," these decisions must both point unmistakably to the unconstitutionality of the conduct complained of and be so clearly foreshadowed by applicable direct authority as to leave no doubt in the mind of a reasonable officer that his conduct, if challenged on constitutional grounds, would be found wanting.32 Furthermore, the right cannot be stated in too general of terms. In other words, it is not enough that the right to be free from cruel and unusual punishment was clearly established. The "right the official is alleged to have violated must have been
30 Pearson v. Callahan, 555 U.S. ___; 129 S. Ct. 808; 172 L. Ed. 2d 565 (2009). 31 Pearson, 129 S. Ct. at 818. 32 Lavado v. Keohane, 992 F.2d 601, 606-07 (6th Cir. 1993).
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'clearly established' in a more particularized, and hence more relevant, sense."33 The Sixth Circuit has long followed the rule set forth in Saucier v. Katz:
When determining the objective legal reasonableness portion of the qualified immunity standard, individual claims of immunity must be analyzed on a fact-specific, case-by-case basis to determine whether the plaintiff's constitutional rights were so clearly established when the alleged misconduct was committed that any official in the defendants' position would understand that what he did violated those rights. 34 Qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law."35 Here, the governing law in question is the Eighth Amendment. Prison officials are forbidden from "unnecessarily and wantonly inflicting" pain on an inmate by acting in "deliberate indifference" toward the inmate's serious medical needs.36 "Neither negligent medical care nor delay in medical care constitutes a violation of the Eighth Amendment unless there has been deliberate indifference, which results in substantial harm."37 Mere disagreement with medical staff's prescriptions does not state a claim for violation of constitutional
33 Saucier, 533 U.S. at 202. 34 O'Brien v. City of Grand Rapids, 23 F.3d 990, 999 (6th Cir. 1994). 35 Dorsey v. Barber, 517 F.3d 389, 394 (6th Cir. 2008) (quoting Humphrey v. Mabry, 482 F.3d 840, 847 (6th Cir. 2007)). 36 Estelle v. Gamble, 429 U.S. 97, 104 (1976). 37 Acord v. Brown, 1994 U.S. App. LEXIS 34320 at *5 (6th Cir. 1994) (unpublished).
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rights.38 A prison official cannot be found liable under the Eighth Amendment unless the official "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of harm exists, and he must also draw the inference."39
To reach the level of a constitutional violation, a deprivation "must result in the denial of 'the minimal civilized measure of life's necessities.'"40 The Eighth Amendment is only concerned with "deprivations of essential food, medical care, or sanitation" or "other conditions intolerable for prison confinement."41 "[N]ot every unpleasant experience a prisoner might endure while incarcerated constitutes cruel and unusual punishment within the meaning of the Eighth Amendment."42 "Where a prisoner has received some medical attention and the dispute is over the adequacy of the treatment, federal courts are generally reluctant to second guess medical judgments and to constitutionalize claims which sound in state tort law."43
"[A]n inmate who complains that delay in medical treatment rose to a constitutional violation must place verifying medical evidence in the record to
38 See Estelle, 429 U.S. at 104-06, 107. 39 Farmer v. Brennan, 511 U.S. 825, 837 (1994). 40 Rhodes v. Chapman, 452 U.S. 337, 347 (1981); see also Wilson v. Yaklich, 148 F.3d 596, 600-01 (6th Cir. 1998). 41 Rhodes, 452 U.S. at 348. 42 Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir. 1987). 43 Westlake v. Lucas, 537 F.2d 857, 860, n. 5 (6th Cir. 1976).
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establish the detrimental effect of the delay in medical treatment to succeed."44 "[T]he 'verifying medical evidence' requirement is relevant to those claims involving minor maladies or non-obvious complaints of a serious need for medical care."45
Deliberate indifference "entails something more than mere negligence" or gross negligence.46 It is well established that mere medical malpractice or negligence is insufficient to state a constitutional violation under the Eighth Amendment.47
"To satisfy the subjective component, the plaintiff must allege facts which, if true, would show that the official being sued subjectively perceived facts from which to infer substantial risk to the prisoner, that he did in fact draw the inference, and that he then disregarded that risk."48 The subjective component of an Eight Amendment claim requires a plaintiff to show that the prison officials had "a sufficiently culpable state of mind."49 "[T]he standard for that state of mind is the 'deliberate indifference' standard of Estelle v. Gamble, 429 U.S. 97, 50 L. Ed. 2d
44 Blackmore v. Kalamazoo County, 390 F.3d 890, 898 (6th Cir. 2004) (quoting Napier v. Madison County, 238 F.3d 739, 742 (6th Cir. 2001)). 45 Blackmore, 390 F.3d at 898. 46 Farmer, 511 U.S. at 835; Walker v. Norris, 917 F.2d 1449, 1454 (6th Cir. 1990); McGhee v. Foltz, 852 F.2d 876, 880-81 (6th Cir. 1988). 47 Daniels v. Williams, 474 U.S. 327; 106 S. Ct. 662; 88 L. Ed. 2d 662 (1986); Estelle, 429 U.S. at 105. 48 Comstock v. McCrary, 273 F.3d 693, 707 (6th Cir. 2001) (citing Farmer, 511 U.S. at 837). 49 Brown v. Bargery, 207 F.3d 863, 863, 867 (6th Cir. 2000).
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251, 97 S. Ct. 285 (1976)."50 To satisfy the subjective prong, a plaintiff must show
that the defendant's conduct demonstrated a level of deliberateness "'tantamount to an intent to punish.'"51
The Sixth Circuit does not appear to have ever addressed the issue of
whether a cataract constitutes a sufficiently serious medical need to invoke Eighth
Amendment protections. However, federal district courts have routinely denied Eighth Amendment claims premised on denials of cataract surgery.52 Though
those cases are not perfectly analogous to ours, they are indicative of the non-
serious nature of cataract complaints. In the District Court, the Magistrate Judge's
reasoning, adopted by the court, relied on non-controlling cases that were not
analogous to our case, some of which could not be controlling authority from 2004
to 2008 because they were decided after that timeframe. [See R. 115, pages 14-17;
R. 116, pages 1-6]. The lower court could find no clearly established authority
50 Helling v. McKinney, 509 U.S. 25, 30 (1993). 51 Hicks v. Frey, 992 F.2d 1450, 1455 (6th Cir. 1993) (quoting Molton v. City of Cleveland, 839 F.2d 240, 243 (6th Cir.1988)). 52 Espinosa v. Saladin, 2009 U.S. Dist. LEXIS 87199 (W.D. Mich. 2009) (denying claim where specialist recommended cataract surgery but CMS's utilization-review physician denied surgery); Hurt v. Mahon, 2009 U.S. Dist. LEXIS 79295 at *7-8 (E.D. Va. 2009) (inmate failed to state a claim because there was no evidence that second-eye cataract was medically necessary); Edwards v. Bradford, 1997 U.S. Dist. LEXIS 15089 at *4, 6-7 (S.D. Ala. 1997) (no claim where prisoner alleged "more difficulty with the tasks of daily living, that he has had several 'incidents' while in prison, and that he may be forced to withdraw from trade school"; the prison had a policy of not removing a single eye cataract because it will not cause permanent damage) (attached as Exhibits A, B, C).
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holding Pramstaller's actions to be unconstitutional. And other cataract cases support Pramstaller's motion for qualified immunity.
In Samonte v. Bauman, the court held that a doctor's "refusal to authorize cataract surgery after another doctor determined that such surgery was an option was a 'difference of medical opinion,' insufficient by itself to raise a triable issue of deliberate indifference."53 Likewise, in Stevenson v. Pramstaller, the plaintiff alleged "that he has suffered from psychological symptoms, including fear, anger, anxiety, and emotional suffering, as well as an increased risk of injury due to the resulting lack of peripheral vision and depth perception" due to "the [d]efendants' failure to treat a hyper cataract in his left eye."54 There, Eastern District of Michigan Judge Denise Page Hood found that neither the subjective nor objective components of a deliberate-indifference claim were met because the "panel of physicians that form the MSAC reached a consensus, based on documentation accompanying the request for cataract surgery, that the surgery was not immediately necessary."55
53 Samonte v. Bauman, 264 Fed. Appx. 634, 636 (9th Cir. 2008) (unpublished) (R. 103, Exhibit T). 54 Stevenson v. Pramstaller, et al., no. 07-cv-14040, 2009 U.S. Dist. LEXIS 25495 at *2 (E.D. Mich. 2009) (attached as Exhibit D). 55 Stevenson, 2009 U.S. Dist. LEXIS 25495 at *15-16.
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In Williams v. Shelton, a prison medical committee delayed removing a prisoner's second-eye cataract for more than a year.56 The court dismissed an Eighth Amendment claim premised on the delay because there was no indication "that the delay caused any harm, much less substantial harm."57 "Cataracts, a natural result of aging, cause blurred vision but are not painful. Early removal of a cataract does not create a better medical outcome and late removal does not create a worse medical outcome. The decision for surgical removal is usually based on the cataract's effect on the activities of daily living."58
In Leyser v. D'Amico, another Ninth Circuit Court of Appeals case, the court affirmed the dismissal of a cataract case.59 The reasoning was two-fold: (1) the prisoner failed to show that the utilization-review panel's denial of surgery led to further injury to his eye and (2) a difference of medical opinion between a utilization panel and the treating physician does not amount to deliberate indifference.60
In Rylee v. Bureau of Prisons, the "Federal Bureau of Prison's Ophthalmology Guidelines require[d] both of an inmate's eyes to have a best-
56 Williams v. Shelton, 2008 U.S. Dist. LEXIS 54394 at *7-8 (E.D. Or. 2008) (attached as Exhibit E). 57 Williams, 2008 U.S. Dist. LEXIS 54394 at *8. 58 Williams, 2008 U.S. Dist. LEXIS 54394 at *7. 59 Leyser v. D'Amico, 182 Fed. Appx. 697 (9th Cir. 2006) (unpublished) (R. 103, Exhibit P). 60 Leyser, 182 Fed. Appx. at 697-98.
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corrected visual acuity of less than 20/60 for at least six months, and [because] only the vision of [the] Plaintiff's right eye [met] this criterion," cataract surgery was denied.61 The prisoner's vision was 20/30 in his left eye; his right eye went from 20/80 to 20/400 to 20/CF.62 The prisoner also complained of "burning and excessive lacrimation in his left eye."63 The treating physician recommended surgery, but the prison clinical director denied the request because the plaintiff had 20/30 vision in one eye.64 Prison medical staff said they would continue to monitor the prisoner's condition.65 The court granted summary judgment to the defendants because an Eighth Amendment violation could not be made out under these facts.66
In Dupuis v. Caskey, the prisoner complained of a delay in cataract surgery from September 2007 until February 2009.67 The treating optometrist diagnosed the prisoner with "a Grade III left cataract," extensive astigmatism, anisometropia due to swelling from the cataract development, and aniseikonia.68 The treating
61 Rylee v. Bureau of Prisons, 2009 U.S. Dist. LEXIS 24609 at *2 (D.S.C. 2009) (attached as Exhibit F). 62 Rylee, 2009 U.S. Dist. LEXIS 24609 at *4-5. 63 Rylee, 2009 U.S. Dist. LEXIS 24609 at *4. 64 Rylee, 2009 U.S. Dist. LEXIS 24609 at *3, 4-5. 65 Rylee, 2009 U.S. Dist. LEXIS 24609 at *11-12. 66 Rylee, 2009 U.S. Dist. LEXIS 24609 at *14. 67 Dupuis v. Caskey, 2009 U.S. Dist. LEXIS 89002 at *4 (S.D. Miss. 2009) (attached as Exhibit G). 68 Dupuis, 2009 U.S. Dist. LEXIS 89002 at *7. The court described the last two conditions listed as "a condition in which the two eyes have unequal refractive
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physician recommended surgery, but the prison medical director disagreed.69 The court granted summary judgment to the defendants because a difference in medical opinion between the physician and medical director does not amount to deliberate indifference.70 In addition, although the inmate preferred earlier surgery and was disturbed by his worsening sight, such did not show that he suffered any substantial harm.71
In our case, Cobbs was monitored closely through medical appointments for the entire relevant period of time. Although his physicians requested cataract removal on his left eye, the case was considered by a group of physicians at the Michigan Department of Corrections (the Medical Services Advisory Committee), and they determined that there was no or minimal risk involved in putting off surgery until Cobbs met appropriate criteria. Very literally, a group of doctors sat around a table and discussed Cobbs's case – this is the very definition of what is not deliberate indifference. The committee merely disagreed with the referring
power and may cause a difference in images coming from the two eyes" and "a binocular condition such that the image in one eye is perceived as different in size compared to the image in the other eye." These are conditions that would presumably qualify as "great discrepancy in vision" in the instant case. 69 Dupuis, 2009 U.S. Dist. LEXIS 89002 at *7-8. 70 Dupuis, 2009 U.S. Dist. LEXIS 89002 at *12. 71 Dupuis, 2009 U.S. Dist. LEXIS 89002 at *13-15 (citing Cash v. Sadeghi, 2009 U.S. Dist. LEXIS 26306, 2009 WL 839132 (N.D. Cal. Mar. 30, 2009) (blurriness and double vision not found to be serious medical need resulting in further significant injury or unnecessary and wanton infliction of pain if untreated)) (other citations omitted).
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Case: 10-2089 Document: 006110750182 Filed: 10/04/2010 Page: 43
physician's recommendation. If such a committee was required to defer to outside physicians requesting services, then the very existence of the committee would be rendered meaningless.
Dr. Pramstaller, as the Chief Medical Officer, chaired the Medical Services Advisory Committee. Per policy, it was Pramstaller's vote and decision that ultimately counted. In this case, there is no evidence that any doctor on the committee disagreed with the decisions made or had any contrary opinion. Aside from chairing the committee, Pramstaller had no involvement in the care of Cobbs, and he never had personal contact with Cobbs.
On June 22, 2004, the Medical Services Advisory Committee approved Cobbs's right-eye surgery. On October 26, 2004, the committee non-approved the left-eye surgery. At this time, the right-eye surgery had been successful, and Cobbs's right-eye vision had improved to 20/70 without correction. There was no indication at this time that Cobbs met any criteria for providing second-eye cataract surgery. He had good vision in one eye, permitting him to function normally in his daily activities. Pramstaller and the Medical Services Advisory Committee were not presented with any evidence to the contrary.
Pramstaller's next and final involvement came at the April 25, 2006, meeting of the Medical Services Advisory Committee. On March 1, 2006, a doctor examined Cobbs and made a request for left-eye cataract surgery. The requesting
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document noted that Cobbs had 20/20 vision in his right eye. Neither the requesting document nor the corresponding optometry note gave any indication that Cobbs met any criteria that would qualify him for a second-eye surgery. The requesting document did, however, note "possible 2d glaucoma a risk factor." Based on the information provided to the committee, the surgery was not approved. The requesting physician never gave any indication of why glaucoma was a risk factor – the plaintiff never developed glaucoma. But knowing that glaucoma can be monitored by monitoring interocular pressure, Pramstaller instructed that the physicians "monitor closely for increase in interocular pressure and resubmit if pressure increases." Pramstaller was not indifferent to Cobbs's care – he ordered that Cobbs be monitored to make sure that no condition would arise that would actually present a risk to Cobbs.
Under the circumstances of this case, no clearly established law holds Pramstaller's actions to be unconstitutional. There is no Sixth Circuit precedent directly on point, but the numerous other cases cited above all indicate that Pramstaller's actions were reasonable – it is common medical practice to set criteria for second-eye cataract surgery. And the criteria followed in this case were such that Cobbs would be protected if there was any indication of risk to him. And the three criteria relied upon were not an exhaustive list – Pramstaller testified that
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each patient is considered on a case-by-case basis, based on the information presented to the committee.
When Cobbs eventually presented with a great discrepancy in vision, i.e. double vision, and the Medical Services Advisory Committee was informed of that condition, the second-eye surgery was approved. It was not the job of the Medical Services Advisory Committee to search for such a condition or to conduct an independent evaluation of Cobbs. Rather, it was the duty of the referring physicians to present the pertinent information to the committee. The information was presented on each occasion in the form of the surgery/referral requests and the accompanying medical note from the most recent visit.
As to Pramstaller, the facts of this case do not even tend to show negligence, let alone deliberate indifference. Pramstaller approved Cobbs's right-eye surgery, and Cobbs had excellent overall vision after that surgery. Pramstaller relied on his own medical judgment and the medical judgment of the other Medical Services Advisory Committee members when they did not approve the October 2004 and April 2006 requests. The plaintiff cannot show that Pramstaller was deliberately indifferent to any serious medical condition. In fact, clearly established law protects prison doctors when they rely on their medical judgment to dictate a prisoner's course of care. Pramstaller acted reasonably and did not violate Cobbs's constitutional rights. Because there is no clearly established law holding
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Pramstaller's actions to be unconstitutional, Pramstaller is entitled to qualified immunity.
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CONCLUSION Defendant-Appellant Pramstaller respectfully requests that this Court

overrule the District Court's Order denying Pramstaller's motion for summary

judgment based on qualified immunity.

Respectfully submitted,

Michael A. Cox Attorney General

B. Eric Restuccia Solicitor General Co-Counsel of Record

Dated: October 4, 2010
Schneider/brief 2007025427B

Clifton Schneider Assistant Attorney General Co-Counsel of Record Attorneys for Defendant-Appellant Pramstaller Corrections Division P.O. Box 30217 Lansing, MI 48909 (517) 335-7021 SchneiderC1@michigan.gov

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ADDENDUM – DESIGNATION OF RECORD ON APPEAL Defendant-Appellant, per Sixth Circuit Rule 28(c), 30(b), hereby designates

the following portions of the record on appeal:

Description of Entry Complaint
Amended Complaint
Motion for Summary Judgment by Hutchinson, Mathai, and CMS
Motion for Summary Judgment by Clark, Naylor, Neighbors, Pandya, and Pramstaller
Plaintiff's Response to motions for summary judgment (R. 103, R. 104)
Report and Recommendation on motions for summary judgment (R. 103, R. 104)
Objections to R&R (R. 115) by Clark, Naylor, Pandya, and Pramstaller
Objections to R&R (R. 115) by Cobbs
Objections to R&R (R. 115) by CMS, Hutchinson, and Mathai
Response to Objections (R. 116) by Cobbs
Response to R&R (R. 115) by Cobbs
Supplemental Brief regarding R. 124
Response to Cobbs's Objections (R. 117)
Reply to Response (R. 126) by Cobbs
Reply to R. 119 by CMS, Hutchinson, and Mathai
Notice to Appear
Supplemental Brief regarding R. 126 by Cobbs

Date 10/30/2007 06/10/2008 12/01/2009
12/01/2009
12/23/2009
03/25/2010
04/08/2010 04/08/2010 04/12/2010 04/21/2010 04/21/2010 04/22/2010 04/26/2010 04/30/2010 05/03/2010 06/10/2010 06/17/2010

Record Entry No. R. 1 R. 38 R. 103
R.104
R. 106
R. 115
R. 116 R. 117 R. 119 R. 123 R. 124 R. 125 R. 126 R. 127 R. 128 R. 130 R. 131

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Reply to Supplemental Brief by CMS, Hutchinson, and Mathai
Minute Entry regarding hearing
Order Adopting in Part R&R (R. 115)
Transcript of 07/12/2010 Hearing
Notice of Appeal by Pramstaller
Certificate of Service regarding Notice of Appeal

06/28/2010
07/12/2010 07/22/2010 07/29/2010 08/20/2010
08/20/2010

R. 132
R. 133 R. 134 R. 138 R. 139

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Case: 10-2089 Document: 006110750182 Filed: 10/04/2010 Page: 50
CERTIFICATE OF COMPLIANCE Certificate of Compliance with Type-Volume Limitation,
Typeface Requirements, and Type Style Requirements 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains no more that 14,000 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). There are a total of 7,325 words. 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Word 2003 in 14 point Times New Roman.
s/ Clifton Schneider Assistant Attorney General Co-Counsel of Record Attorneys for Defendant-Appellant Corrections Division P.O. Box 30217 Lansing, MI 48909 (517) 335-7021 SchneiderC1@michigan.gov
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Case: 10-2089 Document: 006110750182 Filed: 10/04/2010 Page: 51
PROOF OF SERVICE I certify that on October 4, 2010, the foregoing document was served on all parties or their counsel of record through the CM/ECF system.
s/ Clifton Schneider Assistant Attorney General Co-Counsel of Record Attorneys for Defendant-Appellant Corrections Division P.O. Box 30217 Lansing, MI 48909 (517) 335-7021 SchneiderC1@michigan.gov
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Case: 10-2089 Document: 006110750183 Filed: 10/04/2010 Page: 1
No. 10-2089 In the
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Dallas Cobbs (State Prisoner no. 164276), Plaintiff-Appellee,
v. George Pramstaller,
Defendant-Appellant, and Craig Hutchinson, Marcella Clark, Gregory Naylor, Bency Mathai, Haresh Pandya, and Correctional Medical Services, Inc.,
Defendants. Appeal from the United States District Court Eastern District of Michigan at Detroit Honorable Anna Diggs Taylor
INDEX OF EXHIBITS
Exhibit A...................................................................Pedro Espinosa v. J. Saladin and L. Hudson Exhibit B .............................................................................Donald O. Hurt v. D.T. Mahon, et. al. Exhibit C ............................................................... James R. Edwards v. Michael Bradford, et. al. Exhibit D..............................................................Burvin Stevenson v. George Pramstaller, et. al. Exhibit E .......................................................................... Clint C. Willilams v. Dr. Shelton, et. al. Exhibit F...................................................................Samuel W. Rylee v. Bureau of Prisons, et. al. Exhibit G............................................................................Timothy Dupuis v. Dale Caskey, et. al.
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 1:07-cv-14644-TLL-CEB Doc # 38 Filed 06/10/08 Pg 1 of 11 Pg ID 176

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN _____________________________________

DALLAS COBBS, #164276,

File

Plaintiff,

vs.

Hon.

No. 07-CV-14644 Anna Diggs Taylor

GEORGE J. PRAMSTALLER, CRAIG

Mag. Charles E. Binder

HUTCHINSON, WILLIAM BORGERDING,

MARCELLA CLARK, JAMES DILLON,

ROLDERT FISCHRÉ, KEITH IVENS,

GREGORY NAYLOR, BENCY MATHAI,

BONITA DAVIS NEIGHBORS, WALTER

ORMES, HARESH PANDYA, CHRIS SAMY,

individually and in their official capacities, and

CORRECTIONAL MEDICAL SERVICES,

INC.,

Defendants.

______________________________________________________________________________

Paul D. Reingold (P27594)

Cori E. Barkman (P61470)

MICHIGAN CLINICAL LAW PROGRAM

Michigan Department of Attorney General

Attorney for Plaintiff

Attorney for Defendants

363 Legal Research Building

Corrections Division

801 Monroe Street

P.O.

Box 30217

Ann Arbor, MI 48109-1215

Lansing, MI 48909

(734) 763-4319

(517)

335-7021

______________________________________________________________________________

FIRST AMENDED COMPLAINT

Plaintiff Dallas Cobbs, for his first amended complaint, states as follows:

Introduction

1. This is a civil rights action under 42 U.S.C. § 1983 challenging the defendants’

denial of medical care to the prisoner-plaintiff Dallas Cobbs.

2. In 2004 Mr. Cobbs had cataracts in both eyes and was scheduled for surgery.

3. An ophthalmologist successfully removed the cataract from Mr. Cobbs’ right eye

and told Mr. Cobbs that the second surgery would be in six weeks, when he had fully recovered.

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1:07-cv-14644-TLL-CEB Doc # 38 Filed 06/10/08 Pg 2 of 11 Pg ID 177
4. Shortly before the second operation, the defendants cancelled his surgery. 5. Despite steady requests for the second surgery by Mr. Cobbs’ treating physicians, and despite the fact that he became functionally blinded by the thick cataract in his left eye, the defendants denied him the second surgery from October 26, 2004, until mid-April 2008. 6. The defendants did not authorize the second surgery until after Mr. Cobbs had filed this lawsuit and retained counsel. 7. Mr. Cobbs seeks declaratory relief that the defendants’ apparent policy of treating only one eye violates the Eighth Amendment; he seeks injunctive relief to ensure that his vision is fully restored; and he seeks nominal, compensatory, and punitive damages for having to wait 1,624 days for the second cataract surgery.
Jurisdiction 8. This Court has original jurisdiction over the case under 42 U.S.C. § 1331(a) and 1343, as the plaintiff alleges violations of his federal constitutional rights.
Parties 9. At all relevant times, plaintiff Dallas Cobbs was incarcerated at Ryan Correctional Facility, 1700 Ryan Road, Detroit, MI 48212. He remains a prisoner there today. 10. At all relevant times, defendant George J. Pramstaller was the chief medical officer of the Michigan Department of Correction’s (MDOC) Bureau of Health Care Services (BHCS), and a member of the Medical Services Advisory Committee (MSAC). He is sued in his individual and official capacity. 11. At all relevant times, defendant Craig Hutchinson was the state medical director for Correctional Medical Services, Inc. (CMS), and a member of the Medical Services Advisory Committee. He is sued in his individual and official capacity.
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1:07-cv-14644-TLL-CEB Doc # 38 Filed 06/10/08 Pg 3 of 11 Pg ID 178
12. At all relevant times, Correctional Medical Services, Inc., was a Missouri corporation doing business in Michigan as the MDOC’s contract medical provider.
13. CMS’s utilization review unit approves or denies requests for specialty care, and in this case repeatedly denied Mr. Cobbs’ physicians’ requests for surgical specialty care.
14. Upon information and belief, the Medical Services Advisory Committee comprises senior medical personnel from both the MDOC/BHCS and CMS.
15. Upon information and belief, the MSAC serves two functions: (a) it sets and/or applies and implements prison health care policy; and (b) it makes decisions about the specific care to be provided to individual patients in Michigan’s prisons.
16. Defendants William Borgerding, Marcella Clark, James Dillon, Roldert Fischré, Keith Ivens, Gregory Naylor, Bonita Davis Neighbors, Bency Mathai, Walter Ormes, Haresh Pandya, and Chris Samy were members of the MSAC when the committee denied Mr. Cobbs’ physicians’ requests for a second cataract surgery. These defendants are sued in their individual and official capacities.
17. At all relevant times all the defendants acted under color of state law. Facts
18. In 2004 Mr. Cobbs was diagnosed with cataracts in both eyes. 19. On July 27, 2004, Mr. Cobbs was taken to the Duane L. Waters Hospital at the Jackson prison complex for a consultation with ophthalmologist Dr. Ghulam Dastgir for preapproval for scans of the right and left eye, prefatory to possible cataract extraction with lens implants in both eyes. The right eye was to be done first. 20. On August 23, 2004, Mr. Cobbs was taken to Parkside Eye Clinic for the scans; he signed a consent form for surgical cataract extraction with lens implants, for both eyes.
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1:07-cv-14644-TLL-CEB Doc # 38 Filed 06/10/08 Pg 4 of 11 Pg ID 179
21. On August 30, 2004, Mr. Cobbs was taken to Blake Woods Surgery Center for cataract extraction and lens implant of his right eye. Mr. Cobbs then went to Duane L. Waters Hospital for recovery.
22. Dr. Dastgir’s treatment plan was to have him brought back to the Blake Woods Surgery Center in six weeks for cataract surgery of his left eye as previously scheduled.
23. On October 7, 2004, Ryan physician Dr. Piper made a request for ophthalmology specialty care noting that Mr. Cobbs was to have the second cataract procedure done on his left eye, citing the dictation of the ophthalmologist, Dr. Dastgir.
24. The MSAC denied Dr. Piper’s request on October 26, 2004. At that time the MSAC members who made the decision included William Borgerding, Marcella Clark, Roldert Fischré, Craig Hutchinson, Gregory Naylor, Bonita Davis Neighbors, and George Pramstaller.
25. On November 29, 2004, Mr. Cobbs sent a health services request form asking why he had not received the cataract surgery for his left eye.
26. On or about December 1, 2004, health services issued a response stating that “per MSP [medical service provider] surgery not approved by CMS.”
27. On December 8, 2004, Mr. Cobbs filed a grievance against health services to find out why the surgery had been denied and to try to get it rescheduled.
28. On February 4, 2005, his grievance was denied at Step I. The denial relied on the MSAC’s October 26, 2004, decision not to authorize the cataract surgery on Mr. Cobbs’ left eye.
29. On January 19, 2005, Mr. Cobbs appealed the grievance to Step II, stating that he had been told in the summer of 2004 that he would have the cataract surgery on his left eye.
30. A Step II response dated February 4, 2005, was sent stating that cataract surgery for his left eye had never been approved and that he should direct all further concerns to health
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1:07-cv-14644-TLL-CEB Doc # 38 Filed 06/10/08 Pg 5 of 11 Pg ID 180
services for a medical service provider to determine if another surgery request would be filed. 31. On or about February 7, 2005, Mr. Cobbs appealed the Step II grievance denial to
Step III. 32. On March 17, 2005, his Step III appeal was denied. The denial stated that he had
already received his requested relief, explaining that the cataract surgery for his left eye had been approved initially but that the MSAC later rescinded that approval on review.
33. Mr. Cobbs sent a health care request form to health services on March 17, 2005, to see an optometrist for new glasses because his vision had changed due to the cataract on his left eye, and he was having trouble seeing.
34. Mr. Cobbs was seen by an optometrist, Dr. McGraf, on May 10, 2005, but was told by the doctor that he could not get new glasses until he had cataract surgery
35. On May 18, 2005, Dr. McGraf submitted another request for cataract evaluation by an ophthalmologist and possible surgery.
36. On May 31, 2005, that request was denied by CMS in reliance on the October 26, 2004, MSAC decision denying Mr. Cobbs’ physicians’ request for surgery on his left eye.
37. On June 8, 2005, Mr. Cobbs sent a health care request form to health services concerning the vision problems the cataract was causing him. No appointment was scheduled.
38. On June 24, 2005, Mr. Cobbs filed a second Step 1 grievance about his vision problems and the cataract surgery.
39. A response dated July 13, 2005, said that the surgery was not approved and that Mr. Cobbs was to be evaluated in 6-12 months by the optometrist.
40. On November 2, 2005, Mr. Cobbs sent another health care request form to health services noting that his vision was deteriorating and asking when he would see the optometrist.
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1:07-cv-14644-TLL-CEB Doc # 38 Filed 06/10/08 Pg 6 of 11 Pg ID 181
41. A reply dated November 3, 2005, stated that he was on the appointment list. 42. On or about December 14, 2005, Dr. McGraf made another request for the surgery stating “Cataract surgery needed. No view of retina of left eye possible. Patient has also walked into object on left side.” 43. In a response dated December 27, 2005, CMS denied the request relying on the MSAC’s 2004 denial of Mr. Cobbs’ physicians’ request for surgery. 44. On January 11, 2006, Dr. McGraf responded to the denial stating that a follow-up visit was needed and citing glaucoma as a risk. 45. On or about February 1, 2006, Mr. Cobbs was again examined by Dr. McGraf, who again requested approval of cataract surgery, citing glaucoma as a risk. 46. CMS denied the request on or about March 15, 2006. 47. On March 15, 2006, Dr. McGraf made another surgery request to CMS to prevent secondary glaucoma. 48. CMS denied that request on April 3, 2006, again citing the MSAC’s 2004 denial of Mr. Cobbs’ physicians’ request for surgery. 49. On or about April 17, 2006, Dr. McGraf appealed the denial to the MSAC stating that Mr. Cobbs “need[s] cataract surgery” and reiterating the risk of secondary glaucoma. 50. On April 25, 2006, the MSAC, consisting of Marcella Clark, James Dillon, Keight Ivens, Craig Hutchinson, Bency Mathai, Walter Ormes, Haresh Pandya, George Pramstaller, and Chris Samy denied the appeal for cataract surgery. 51. On May 9, 2006, CMS re-affirmed its denial of the March 15 request for surgery, relying on the MSAC’s April 25, 2006, meeting upholding non-approval of the cataract surgery. 52. On May 27, 2006, Mr. Cobbs sent a health care request form to health services to
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1:07-cv-14644-TLL-CEB Doc # 38 Filed 06/10/08 Pg 7 of 11 Pg ID 182
be examined by a doctor because he could no longer see out of his left eye. 53. An answer dated May 30, 2006, instructed him to “watch the call out” for the eye
clinic. Mr. Cobbs was not scheduled for a “call out” visit with any medical service provider. 54. On June 21, 2006, Mr. Cobbs sent a follow-up health care request form to health
services to see a doctor. An appointment was made for July 26, 2006. 55. On July 16, 2006, Mr. Cobbs sent a health care request form to health services
stating he had no vision in his left eye and that he needed immediate attention. 56. On July 27, 2006, after examining Mr. Cobbs, Dr. Piper requested a referral to
ophthalmology noting the deterioration in Mr. Cobbs’ vision. 57. On August 8, 2006, Dr. Piper again requested that Mr. Cobbs see an ophthal-
mologist because Mr. Cobbs’ vision had significantly deteriorated. 58. On August 25, 2006, Dr. Cook examined Mr. Cobbs, requested surgery, and also
stated that Mr. Cobbs needed to wear a patch on his left eye in order to function. 59. On September 28, 2006, Dr. Piper’s August 8 referral of Mr. Cobbs to an oph-
thalmologist was deemed “auto-deny” by CMS, relying on an “MSAC memorandum.” 60. Mr. Cobbs sent a health care request form to health services on October 26, 2006,
complaining of strain and blurred vision in his good eye, plus headaches, dizziness, and loss of balance.
61. The response dated November 2, 2006, was stamped “optometry list.” 62. On October 29, 2006, Mr. Cobbs filed a third Stage I grievance complaining that the optometrists kept making surgery requests for his left eye and that CMS continued to deny surgery, relying on the April 25, 2006, MSAC decision not to authorize the surgery. 63. When Mr. Cobbs did not receive a response to his Step I grievance, he filed a
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1:07-cv-14644-TLL-CEB Doc # 38 Filed 06/10/08 Pg 8 of 11 Pg ID 183
Step II grievance appeal on November 30, 2006, repeating the Step I claim. 64. Five months later, in a response dated April 27, 2007, Mr. Cobbs’ Step II appeal
was denied. The denial stated that “the CMO [chief medical officer George Pramstaller] upheld non-approval by the MSAC.”
65. On December 13, 2006, Dr. McGraf requested that Mr. Cobbs be evaluated and that cataract surgery be ordered.
66. CMS denied that request on or about March 6, 2007. 67. On or about January 15, 2007 Mr. Cobbs filed a Step III appeal re-stating the claims contained in Step I and Step II of his grievance. 68. On December 13, 2006, Dr. McGraf requested that Mr. Cobbs be evaluated and that cataract surgery be ordered. 69. On February 27, 2007, Mr. Cobbs wrote the MDOC director’s office to try to expedite a response to his Step III grievance appeal. 70. That director’s office answered by a letter dated April 3, 2007, stating that the grievance appeal would be returned as soon as it was feasible. 71. Mr. Cobbs sent a health care request form to health services on April 21, 2007, complaining of double vision in his good right eye. 72. An answer dated April 26, 2007, was returned stamped “optometry list.” 73. Mr. Cobbs wrote a letter dated May 21, 2007, to the MDOC director’s office complaining that per MDOC policy, the total process from filing a Step I grievance to providing a Step III response was supposed to be 90 days absent an extension, which had not been granted. 74. On July 29, 2007, Mr. Cobbs wrote the MDOC’s grievance and appeals section, again citing MDOC policy and requesting a response to his grievance.
8

1:07-cv-14644-TLL-CEB Doc # 38 Filed 06/10/08 Pg 9 of 11 Pg ID 184
75. On September 28, 2007, Mr. Cobbs sent a health care request form to health services complaining of headaches, dizziness, and blurred vision. He was given an appointment for October 5, 2007, to see a nurse.
76. On October 5, 2007, Mr. Cobbs saw Ms. Butts, R.N. She told Mr. Cobbs that his medical record indicated that a request for an off-sight visit to ophthalmology was made by Dr. McGraf in March 2007 but was not authorized. She further said that there was nothing she could do about Mr. Cobbs’ eye strain.
77. The nurse scheduled Mr. Cobbs to see the doctor on October 29, 2007, but Mr. Cobbs was never called for an appointment on that day.
78. On October 29, 2007, Mr. Cobbs sent in another form for a medical appointment, which was scheduled for November 6, 2007.
79. On November 7, 2007, Mr. Cobbs sent a health care request form stating that he had not been seen on November 6, 2007, and requesting medical attention.
80. Mr. Cobbs filed this action in pro per on or about October 31, 2007. The lawsuit was served on Dr. Pramstaller on or about November 16, 2007; his waiver of service was filed with the clerk of the court on December 6, 2007.
81. Instead of trying to get approval for the surgery, Dr. Pramstaller moved to dismiss the lawsuit, claiming that he had had no connection with the denial of the repeated requests for surgery. See Docket No. 12. That motion was later withdrawn. See Docket No. 26.
82. No steps were taken to approve the surgery until after the defendants and/or their counsel learned that Mr. Cobbs would be represented in his lawsuit, in the spring of 2008.
83. The defendants repeatedly refused to approve the second surgery despite actual knowledge that Mr. Cobbs faced an increased risk of glaucoma without the surgery and that he
9

1:07-cv-14644-TLL-CEB Doc # 38 Filed 06/10/08 Pg 10 of 11 Pg ID 185
was effectively blind in one eye and wore a patch from 2006 to 2008. 84. The defendants failed to provide treatment, or failed to authorize treatment, des-
pite their knowledge of a substantial risk of serious harm. Their total failure of care constituted deliberate indifference to Mr. Cobbs’ serious medical needs.
85. The defendants’ failure to provide or authorize treatment was the proximate cause of physical injury to Mr. Cobbs, in the form of cataract-induced blindness in one eye, headaches, vision problems, and eye strain.
86. The plaintiff exhausted his administrative remedies by timely appealing three separate grievances to Step III.
Claims 87. The defendants failure to approve or to provide Mr. Cobbs with cataract surgery, and to follow the prescribed treatment plan of the consulting optometrists and ophthalmologists, constituted deliberate indifference to Mr. Cobbs’ serious medical needs, in violation of the Eighth Amendment to the U.S. Constitution, enforceable under 42 U.S.C. § 1983. 88. The failure of all the defendants, individually and in concert, to approve and provide the cataract surgery constituted deliberated indifference to the plaintiff’s serious medical needs and subjected him to the wanton and unnecessary infliction of pain and suffering, in violation of the Eighth Amendment to the U.S. Constitution, enforceable under 42 U.S.C. § 1983.
Damages 89. As a proximate result of the defendants acts and omissions, Mr. Cobbs suffered damages including but not limited to: a thick, dense cataract on his left eye that effectively blinded him in that eye and forced him to wear an eye-patch; headaches; vision problems; eye strain; inability to work his previous job as a locksmith; an increased risk of glaucoma and an
10

1:07-cv-14644-TLL-CEB Doc # 38 Filed 06/10/08 Pg 11 of 11 Pg ID 186

increased risk of complications from surgery when the cataract was finally removed; long-term

loss of the use of his left eye; walking into walls and other people for lack of left-side and peri-

pheral vision; loss of depth perception; anxiety; pain and suffering; humiliation and mental and

emotional distress.

Relief Requested

WHEREFORE, the plaintiff requests that this Court:

(a) Enter a declaratory judgment that the defendants’ denial of medical care constituted deliberate indifference to Mr. Cobbs’ serious medical needs in violation of the Eighth Amendment to the U.S. Constitution;

(b) Enter an injunction ordering the defendants to provide all needed follow-up ophthalmological care to ensure that Mr. Cobbs’ vision is fully restored;

(c) Enter judgment against the defendants awarding Mr. Cobbs nominal, compensatory, and punitive damages following trial;

(d) Enter judgment against the defendants awarding Mr. Cobbs interest, costs, and actual attorneys’ fees as permitted by law (including 42 U.S.C. § 1988); and

(e) Grant such other relief as the Court deems appropriate.

Jury Demand

The plaintiff requests a trial by jury of all issues so triable.

Respectfully submitted,

MICHIGAN CLINICAL LAW PROGRAM

s/ Paul D. Reingold Attorney for Plaintiff 363 Legal Research Building 801 Monroe Street Ann Arbor, MI 48109-1215 (734) 763-4319 pdr@umich.edu -- (P-27594)

Dated: June 9, 2008

Annica Sunner and Brian Cathey Student Attorneys on the Complaint

11

 
 1:07-cv-14644-TLL-CEB Doc # 152 Filed 09/21/12 Pg 1 of 2 Pg ID 1977

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION ______________________________________________________________________________

DALLAS COBBS, #164276,

File

Plaintiff,

vs.

Hon.

No. 07-CV-14644 Thomas L. Ludington

GEORGE J. PRAMSTALLER, et al.,

Mag. Judge Charles E. Binder

Defendants.

______________________________________________________________________________

Paul D. Reingold (P27594)

Brian J. Richtarcik (P49390)

Michigan Clinical Law Program

The Juip-Richtarcik Law Firm

Attorneys for Plaintiff

Attorneys for CMS Defendants

363 Legal Research Building

The Penobscot Building

801 Monroe Street

645

Griswold, Suite 3850

Ann Arbor, MI 48109-1215

Detroit, MI 48226

(734) 763-4319 - pdr@umich.edu

(313) 859-5900 -

brichtarcick@thejrlawfirm.com

Clifton B. Schneider (P70582) Michigan Department of Attorney General Attorney for MDOC Defendants Corrections Division P.O. Box 30217 Lansing, MI 48909 (517) 335-7021 - SchneiderC1@michigan.gov
______________________________________________________________________________

FINAL ORDER OF DISMISSAL

Pursuant to the stipulation of the parties (Docket Entry No. 151) IT IS ORDERED that the above action be, and by this order is, dismissed with prejudice, as to all defendants. The Court awards no costs or attorneys’ fees to any party. This is the final order in the case.

THOMAS United
Dated: September 21, 2012

SO ORDERED.
s/Thomas L. Ludington L. LUDINGTON
States District Judge

1:07-cv-14644-TLL-CEB Doc # 152 Filed 09/21/12 Pg 2 of 2 Pg ID 1978

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of record herein by electronic means or first class U.S. mail on September 21, 2012.

TRACY

s/Tracy A. Jacobs A. JACOBS

Order prepared by:
Paul D. Reingold (P27594) Attorney for Plaintiff

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN ____________________________________

DALLAS COBBS, #164276,
Plaintiff, vs.

File No. 07-CV-14644 Hon. Anna Diggs Taylor

GEORGE J. PRAMSTALLER, et al.,

Mag. Judge Charles E. Binder

Defendants. ______________________________________________________________________________

Paul D. Reingold (P27594) Michigan Clinical Law Program Attorneys for Plaintiff 363 Legal Research Building 801 Monroe Street Ann Arbor, MI 48109-1215 (734) 763-4319

Ronald W. Chapman (P37603) Brian J. Richtarcik (P49390) Chapman & Associates, PC Attorneys for CMS Defendants 40950 North Woodward Ave., Ste. 120 Bloomfield Hills, MI 48304 (248) 644-6326

Clifton B. Schneider (P70582) Michigan Department of Attorney General Attorneys for MDOC Defendants Corrections Division P.O. Box 30217 Lansing, MI 48909 (517) 335-7021

Mark V. Schoen (P23576) Assistant Attorney General Michigan Department of Attorney General Attorneys for Public Health Defendants P.O. Box 30736 Lansing, Michigan 48909 (517) 373 -6434

______________________________________________________________________________

PLAINTIFF’S BRIEF IN OPPOSITION TO MDOC DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Dated: October 17, 2008

MICHIGAN CLINICAL LAW PROGRAM By: Paul D. Reingold pdr@umich.edu – (P27594)
Laura Cunningham & Jolene Meiring Student Attorneys on the Brief

TABLE OF CONTENTS Statement of Issues Presented………………………………………………………………….. ii Controlling Authority………………………………………………........................................... iv Table of Authorities……………………………………………………………………………. v Introduction ……………………………………………………………………………………. 1 Statement of Facts and Proceedings to Date…………………………………………………… 1 ARGUMENT…………………………………………………………………………………... 7 I. PLAINTIFF HAS PLED AN EIGHTH AMENDMENT VIOLATION…………………….. 7 II. DEFENDANTS ARE NOT ENTITLED TO QUALIFIED IMMUNITY………………….. 11 Conclusion…………………………………………………………………………………….... 14 Index of Exhibits……………………………………………………………………………….. 15 Proof of Service………………………………………………………………………………… 16
ii

STATEMENT OF ISSUES PRESENTED I. Does the MDOC defendants’ denial of Mr. Cobbs’ cataract surgery from 2004 to 2008
constitute deliberate indifference to his serious medical needs in violation of his Eighth Amendment rights? The plaintiff says yes. II. Does the MDOC defendants’ violation of Mr. Cobbs’ clearly established Eighth Amendment rights preclude the defense of qualified immunity? The plaintiff says yes.
iii

The Legal Standard and Controlling Authority For summary judgment to be granted, the defendants must show that there are no genuine issues of material fact and that they are entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Horton v. Potter, 369 F.3d 906, 909 (6th Cir. 2004). The evidence and all reasonable inferences must be construed in the light most favorable to the plaintiff. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Any direct evidence offered by the plaintiff in response to a summary judgment motion must be accepted as true. Muhammad v. Close, 379 F.3d 413, 416 (6th Cir. 2004). To prove an Eighth Amendment claim, the plaintiff must show that the defendants were deliberately indifferent to his serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104 (1976); City of Canton v. Harris, 489 U.S. 378, 392 (1989). A serious medical need is a medical need “that has been diagnosed by a physician as mandating treatment.” Perez v. Oakland County, 466 F.3d 416, 423 (6th Cir. 2006). Qualified immunity is not a defense if, taking the facts in the light most favorable to the plaintiff, the defendants violated a clearly established constitutional right that would have been understood by a reasonable person, and the defendants’ conduct was objectively unreasonable in light of the clearly established right. Saucier v. Katz, 533 U.S. 194, 201 (2001); Higgason v. Stephens, 288 F.3d 868, 876 (6th Cir. 2002).
iv

TABLE OF AUTHORITIES Cases Anderson v. Creighton, 483 U.S. 635 (1987)……………………………………………. 12, 13 Blackmore v. Kalamazoo County, 390 F.3d 416 (6th Cir. 2004)………………………… 7, 8, 11 Castillo v. Dashiell, 2007 WL 609858 (E.D. Cal., No. Civ S-04-0737, Feb. 27, 2007)… 13 Celotex Corp. v. Catrett, 477 U.S. 317 (1986)……………………………………........... iv City of Canton v. Harris, 489 U.S. 378 (1989)…………………………………………... iv, 7 Cook v. Martin, 148 Fed. Appx. 327 (6th Cir. 2005)……………………………………. 8 Estelle v. Gamble, 429 U.S. 97 (1976)…………………………………………………... iv, 7 Farmer v. Brennan, 511 U.S. 825 (1994)………………………………………………... 7, 8 Horton v. Potter, 369 F.3d 906 (6th Cir. 2004)………………………………………….. iv Higgason v. Stephens, 288 F.3d 868 (6th Cir. 2002)…………………………………….. iv, 12 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986)…………. iv Muhammad v. Close, 379 F.3d 413 (6th Cir. 2004)……………………………………... iv Napier v. Madison County, 238 F.3d 739 (6th Cir. 2001)……………………………….. 9 Perez v. Oakland County, 466 F.3d 416 (6th Cir. 2006)………………………………… iv, 8 Saucier v. Katz, 533 U.S. 194 (2001). ............................................................................... iv, 12 Scicluna v. Wells, 345 F.3d 441 (6th Cir. 2003)................................................................. 11, 12 Taghipour v. Chastine, 43 F.3d 669 (5th Cir. 1994)…………………………………….. 13 Titlow v. Corrections Medical Services, 2008 WL 907450 (E.D. Mich., No. 07-cv12083, Mar. 31, 008)……………………………………………………………………. 10
v

Introduction Plaintiff Dallas Cobbs filed this § 1983 lawsuit in pro per in October 2007. He named as defendants Michigan Department of Corrections (MDOC) medical director George Pramstaller, the MDOC Bureau of Health Care Services, the MDOC Medical Services Advisory Committee, and various unknown John Doe defendants. Mr. Cobbs sought damages and injunctive relief for the defendants’ failure to approve cataract surgery that his MDOC doctors, as well as consulting eye specialists, had been requesting for more than three years, since the late summer of 2004.
Statement of Facts 1 Mr. Cobbs was and is incarcerated at the Ryan Correctional Facility in Detroit, Michigan. In 2004, Mr. Cobbs had vision problems due to cataracts. On June 22, 2004, the MDOC’s Medical Services Advisory Committee (MSAC) issued a memorandum approving cataract surgery for Mr. Cobbs based on his lifer status (and rescinding an earlier denial of ophthalmology specialty services). See Exhibit C, Medical Records, at 1, attached. Mr. Cobbs’ primary care physician at Ryan, Dr. Piper, noted the MSAC approval in Mr. Cobbs’ medical chart. (Exh. C, at 2, 7/2/04 notes of Dr. Piper.) On July 27, 2004, Mr. Cobbs had a consultation with ophthalmologist Dr. Ghulam Dastgir. Dr. Dastgir recommended cataract surgery and lens implants in both eyes, and scheduled Mr. Cobbs for scans of both eyes in preparation for the surgery. (Exh. C, at 3-4.) Dr. Piper sent an authorization request for Dr. Dastgir’s treatment plan to Correctional Medical Services (CMS), the MDOC’s contract medical provider, and CMS issued a form authorizing cataract removal surgery and a lens implant for the left eye.2 (Exh. C, at 5-6.)
1 For a complete recitation of the facts, see R. 38, Plaintiff’s Amended Complaint, ¶¶ 18-86 (6/4/08), and Cobbs Declaration, attached as Exhibit A. Only the most pertinent facts will be highlighted here. 2 CMS apparently also approved the right-eye surgery, which was performed on 8/30/04. (Exh. C, at 8.)
1

On August 23, 2004, Dr. Dastgir performed scans on Mr. Cobbs’ left and right eyes, and had him sign a consent form for cataract extraction with lens implants in both eyes. (Exh. C, at 7.) Dr. Dastgir noted that Mr. Cobbs would undergo the operations “in the very near future.” Id.
On August 30, 2004, Dr. Dastgir performed the cataract surgery on Mr. Cobbs’ right eye at the Blake Woods Surgery Center. (Exh. C, at 8.) Dr. Dastgir saw Mr. Cobbs again the next day and told him that the left eye surgery would be scheduled shortly. (Exh. C, at 9.) Dr. Dastgir noted in his clinic consultation report that Mr. Cobbs was to return for the left eye surgery. Id. Dr. Piper also noted on Mr. Cobbs’ medical chart that he was to have cataract surgery on his left eye. (Exh. C, at 10, 8/31/04 notes of Dr. Piper.)
On September 7, 2004, Mr. Cobbs was told that the surgery on his left eye needed to be re-scheduled because it had been inadvertently set for the Labor Day holiday.3 See Exhibit E, Grievance Documents, at 1, attached. When six weeks passed without Mr. Cobbs hearing anything about the surgery, he sent an inquiry to health services. See Exhibit D, Health Care Requests, at 1, attached. On October 7, 2004, Dr. Piper examined Mr. Cobbs at Ryan, and sent an ophthalmology request to CMS, citing Dr. Dastgir’s treatment plan that Mr. Cobbs was to have the second operation. (Exh. C, at 11.)
Despite Dr. Dastgir’s treatment order, and despite the MSAC’s previous approval of the left eye surgery, the MSAC denied Dr. Piper’s request on October 26, 2004, in a memorandum signed by defendant George Pramstaller. (Exh. C, at 13.) Dr. Pramstaller was the MDOC’s chief medical officer. He chaired the MSAC, which had the final say on medical utilization decisions.
On November 29, 2004, Mr. Cobbs sent another health care request asking if his surgery
3 Mr. Cobbs’ memory has differed as to exactly when the left eye surgery was to occur, but plainly it was to be relatively soon after the first surgery was completed on August 31, 2004. Compare Exh. A, Cobbs Declaration, ¶ 6 (about six weeks later) and Exh. E, Grievance, at 1 (about one week later).
2

had been scheduled. (Exh. D, at 1.) When he was told that the MSAC had denied approval for his surgery, he filed a grievance, citing Dr. Dastgir’s orders and asking for an explanation or clarification. (Exh. E, at 1.) Mr. Cobbs’ grievance was rejected and he exhausted the two appeals available to him. The last denial acknowledged that the MSAC had previously approved the left eye surgery, but had rescinded that approval. (Exh. E, at 5.)
As a result of the surgery on his right eye and the worsening vision in his left eye, Mr. Cobbs requested new glasses in March 2005. (Exh. D, at 2.) He had an optometry exam at Ryan on May 10, 2005. (Exh. C, at 14.) The optometrist said that he could not issue Mr. Cobbs a new prescription until the cataract was removed. (Exh. D, at 3.) The optometrist also requested a specialist’s evaluation so that the surgery could be officially requested again. (Exh. C, at 14.) The optometrist’s request was denied by CMS based on the denial the MSAC had issued in October 2004, eight months earlier, despite the fact that Mr. Cobbs’ vision was “getting worse by the day.” (Exh. C, at 16; Exh. E, at 3.) Mr. Cobbs filed a grievance on June 24, 2005, explaining his dilemma: he couldn’t see without glasses, but he couldn’t get glasses until he had the surgery. (Exh. E, at 6.) He received a grievance response on July 14 stating that the surgery was not approved and that the optometrist he saw in May had recommended that he be re-evaluated in 6-12 months. Id. It appears that the optometrist had in fact recommended an immediate “cataract eval and possible surgery.” (Exh. C, at 14.) 4
In December 2005, Mr. Cobbs had another optometry exam performed at Ryan. (Exh. C, at 17.) The examining doctor stated that cataract surgery was needed. Id. The cataract had become so thick that it was no longer possible for the doctor to view the retina in the left eye. Id.
4 Mr. Cobbs had numerous eye exams throughout 2005, 2006, and 2007. Doctors’ requests and/or appeals were sent on 5/10/2005, 12/14/2005, 1/11/2006, 3/6/2006, 7/27/2006, 12/13/2006, 6/8/2007, and 7/18/2007. After every exam, the examining doctor or consulting specialist sent a request for approval of the left eye surgery. All were denied.
3

This report also documents Mr. Cobbs’ decreasing vision – his difficulty with depth-perception was causing him to walk into objects on his left side. Id. Again, CMS denied the doctor’s request based on the extant MSAC denial. (Exh. C, at 18.)
On March 6, 2006, Mr. Cobbs had another eye exam at Ryan. (Exh. C, at 19.) The doctor warned that the growing density of the cataract increased Mr. Cobbs’ risk of glaucoma. Id. The surgery request emphasized the density of the cataract and Mr. Cobbs’ worsening vision. Id. When CMS denied the March 6 request on March 15, the doctor appealed on March 29 to the MSAC, stating, “surgery advised to prevent secondary glaucoma… no view of left retina possible.” (Exh. C, at 20, emphasis in original.) The MSAC nevertheless again denied the surgery on Mr. Cobbs’ left eye, on April 25, 2006. (Exh. C, at 22.)
By the spring or early summer of 2006, Mr. Cobbs’ vision was bad enough in his left eye that he started wearing an eye patch all the time. (Exh. A, ¶ 69.) On May, 27, 2006, Mr. Cobbs sent a health care request stating that he could no longer see out of his left eye. (Exh. D, at 5.) Later that summer, Mr. Cobbs’ father tried to intervene by writing directly to Dr. Pramstaller. Although we don’t have a copy of that letter, we have a copy of the response, dated September 13, 2006. The administrator of the Bureau of Health Care Services wrote:
Your recent correspondence to Dr. Pramstaller regarding your son Dallas Cobbs #164276 has been referred to me for response. You have asked for Dr. Pramstaller’s intervention to approve and schedule surgery for [your son’s] cataract …. Review of your son’s medical records indicates that he is being monitored closely. Multiple physicians have reviewed his case and all agree with the current treatment plan.5 (Exh. C, at 26.) Mr. Cobbs had another eye exam in December 2006, and again, the examining doctor recommended that Mr. Cobbs receive the surgery. (Exh. C, at 27.) In March 2007, CMS
5 The letter shows that again in the late summer of 2006, Dr. Pramstaller and senior MDOC health officials were fully aware of Mr. Cobbs’ case. Moreover, what they reported to Mr. Cobbs’ father was false. In fact, all of the physicians who had examined Mr. Cobbs disagreed with the defendants’ “current treatment plan” – which was to deny surgery.
4

denied the request for surgery “based on 20/20 vision in the right eye.” (Exh. C, at 29.) In addition to his examining doctors’ requests, as noted Mr. Cobbs himself sought help
by filing numerous health care request forms, grievances, and appeals.6 See Amended Complaint, ¶¶ 18-86, and Exh. A, ¶¶ 9-60. His 2005 requests documented his worsening eyesight. (Exh. D, at 2, 3.) By November 2005, his requests began to describe the side effects he was experiencing, including headaches, dizziness, blurry or double vision in his right eye, pain in his right eye, loss of balance, and loss of depth perception and peripheral vision in the right eye. (Exh. D, at 4, 6.) As a result of these side effects, Mr. Cobbs sometimes had difficulty performing everyday tasks like walking, reading, and going up and down stairs. (Exh. A, ¶ 69.) Mr. Cobbs’ requests increased in urgency as his side effects worsened. He repeatedly conveyed his fear that if he did not have the surgery soon, he would permanently lose vision in his left eye. (Exh. E, at 7, 8, and 10.)
Mr. Cobbs had another eye exam in June 2007. (Exh. C, at 30.) The examining doctor noted a decreased in vision due to the dense cataract in the left eye and requested a follow-up specialist exam, which was denied. (Exh. C, at 30, 32.) Mr. Cobbs sent a health care request in October 2007, noting that he still hadn’t been given anything for pain and needed medication. (Exh. D, at 7.) He was examined by nurses at Ryan three times in October and November 2007 for severe headaches. (Exh. C, at 33-37.) But all of Mr. Cobbs’ requests for the prescribed surgery were denied, based on the MSAC’s and Dr. Pramstaller’s previous blanket denials.
Even after Mr. Cobbs filed this lawsuit in October 2007, no one came forward to say that the defendants had made a mistake, and that Mr. Cobbs’ second eye surgery should have been approved long ago. Instead the defendants sought to dismiss the case. Not until February or
6 Between November 2004 and November 2007, Mr. Cobbs made c. 21 requests for medical assistance about his left eye, in the form of official health care requests, formal grievances and appeals, and letters.
5

March 2008 did the defendants finally approve the surgery, (Exh. C, at 38), and then only after Mr. Cobbs had produced the documents linking Dr. Pramstaller and the MSAC to the denials, and after the defendants were notified that Mr. Cobbs had retained counsel to represent him.
Mr. Cobbs’ second cataract surgery was finally performed in April 2008, three years and eight months after the original surgery was scheduled to occur, in September 2004. Mr. Cobbs seeks damages for the denial of care from 2004 to 2008.
Proceedings to Date As noted, Mr. Cobbs filed suit in pro per in October 2007. In response, defendant Pramstaller filed a motion to dismiss in January 2008. The motion alleged that Pramstaller had nothing to do with the decision to deny the surgery and could not be held liable on a theory of respondeat superior. See R. 12, Defendant’s Motion for Summary Judgment. Mr. Cobbs’ responded by filing a motion to stay Pramstaller’s summary judgment motion so that he could get limited discovery to prepare a response brief and identify the other members of the MSAC who had denied his surgery. See R. 17, Cobbs Motion for Stay. Mr. Cobbs attached some of the documents cited above, showing that Pramstaller and the MSAC had reviewed his doctors’ repeated requests for the second cataract surgery, and had voted to deny them. Id. In February 2008 the undersigned counsel agreed to represent Mr. Cobbs, and so notified the defendants’ counsel. Shortly thereafter, Mr. Cobbs was informed that his cataract surgery had been approved. In April 2008, following a status conference, the Court issued a series of orders. Defendant Pramstaller’s pending motion to dismiss was withdrawn, and motions filed by the pro se plaintiff were also withdrawn. See R. 29 and 34. On June 4, 2008, the Court granted leave for Mr. Cobbs to file an amended complaint and to conduct limited discovery. See R. 37 Order.
6

In June 2008, now by the undersigned counsel, Mr. Cobbs filed his amended complaint. See R. 38. He dropped the Bureau of Health Care Services and the MSAC as separately named defendants, while adding the individual members of the committee, as well as the contract medical provider Correctional Medical Services, Inc., (CMS) and its state medical director Dr. Craig Hutchinson.
In August 2008, the MDOC defendants (at least those who had been served by that time) filed an answer to the amended complaint. See R. 53. In September 2008, the MDOC defendants filed this motion for summary judgment under Fed. R. Civ. P. 56. See R. 66. The MDOC defendants argue that they are entitled to summary judgment for three reasons, namely (1) that Mr. Cobbs failed to establish an Eighth Amendment violation; (2) that the defendants are entitled to qualified immunity; and (3) that any claims for injunctive relief are moot. Mr. Cobbs agrees that his claims for injunctive relief are now moot, and he therefore withdraws them.7 The other two arguments are addressed below.
ARGUMENT I. THE PLAINTIFF HAS PLED AN EIGHTH AMENDMENT VIOLATION.
To prove an Eighth Amendment claim, the plaintiff must show that the defendants were deliberately indifferent to his serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104 (1976); City of Canton v. Harris, 489 U.S. 378, 392 (1989). The plaintiff must demonstrate two components, one objective and one subjective, to establish deliberate indifference. Blackmore v. Kalamazoo County, 390 F.3d 890, 895 (6th Cir. 2004) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)). The objective component is a “serious medical need.” Id. A serious medical need
7 When Mr. Cobbs filed his amended complaint in June 2008, he had not yet fully recovered from his eye surgery, and he did not know whether or not he might need follow-up surgery or other medical care to restore his vision. He has now fully recovered and his vision is restored. Accordingly, he does not object to the dismissal of his claims for injunctive relief because they are moot.
7

is a medical need “that has been diagnosed by a physician as mandating treatment.” Perez v. Oakland County, 466 F.3d 416, 423 (6th Cir. 2006). The subjective component is a showing that the defendants had “a sufficiently culpable state of mind in denying medical care.” Farmer, 511 U.S. at 834. To satisfy the subjective component, the defendants must be aware of facts from which the inference could be drawn that a substantial risk of harm exists, and they must draw such an inference. Id., at 837.
A plaintiff can establish deliberate indifference when prison officials intentionally deny or delay access to medical care, or when prison doctors fail to respond appropriately to the prisoner’s needs. Cook v. Martin, 148 Fed. Appx. 327, 336 (6th Cir. 2005) (unpublished) (attached as Exh. G.) Deliberate indifference can include both the failure to provide care, and unreasonable delay in providing care. Blackmore, 390 F.3d at 899-900.
The defendants cannot deny that Mr. Cobbs’ left eye cataract was diagnosed in the late summer of 2004, and that the consulting ophthalmologist wanted to remove it then. By early 2005, Mr. Cobbs was having trouble seeing and needed new glasses. As his eyesight worsened, every general practitioner and every specialist who saw him concurred in Dr. Dastgir’s original treatment plan: that the cataract should be removed in order to preserve or to restore his eyesight. By late 2005, Mr. Cobbs was already suffering side effects in addition to diminished vision; by mid-2006 he was effectively blind in his left eye. It is undisputed that he had a “hypermature” cataract. (Exh. C, at 19.) His doctors barraged the defendants with surgery requests for more than three-and-a-half years, despite the repeated denials.
The defendants cannot deny that Mr. Cobbs had a serious medical need. The diagnosis and prescribed course of treatment for cataract removal meets the standard for a serious medical need, satisfying the objective component of an Eighth Amendment claim. As the plaintiff’s ex-
8

pert says, but for Mr. Cobbs’ incarceration, any medical provider would have done the surgery immediately, back in 2004. See Sugar Declaration, Exh. B, ¶ 5.
Mr. Cobbs’ claim also satisfies the subjective component. In light of the treating doctors’ and specialists’ persistent detailed requests, this is not a case where the defendants were unaware of Mr. Cobbs’ condition, or his suffering, or the ongoing risks to his health. The clinic reports sent by his doctors, and the requests for medical help sent by Mr. Cobbs himself, meant that the defendants did not have to “infer” anything. They had direct notice that his vision was impaired, that he was suffering from headaches and other serious side effects like loss of balance and depth perception, that he was at risk of glaucoma and long-term loss of eyesight, and that he was functionally blind in one eye. The defendants didn’t need to draw an inference – all they had to do was read the reports they were sent. A reasonable jury could find that the defendants knew from the medical facts not just that Mr. Cobbs was at risk of serious harm, but that he was already suffering serious harm. At the very least, the defendants could draw that inference.
Mr. Cobbs’ case therefore satisfies both the objective and subjective component of an Eighth Amendment claim of deliberate indifference to serious medical needs.
The defendants correctly point out that an inmate may not establish an Eighth Amendment violation merely because of a disagreement over the treatment provided. Napier v. Madison County, 238 F.3d 739, 742 (6th Cir. 2001). But Mr. Cobbs is not arguing that he should have been prescribed a different course of treatment. He is arguing that he should have been provided the very course of treatment he was prescribed, first by Dr. Dastgir and subsequently by the many different doctors and nurses and specialists who observed his condition and implored the defendants to approve the second cataract surgery on his left eye.
9

The facts here are similar to those in Titlow v. Corrections Medical Services, 2008 WL 907450 (E.D. Mich. No. 07-CV-12083, 3/31/08) (attached as Exh. I), another Eighth Amendment case involving the denial of medically necessary surgery. The plaintiff in Titlow was denied mastectomy surgery while she suffered from pain and likely infection due to leaking silicone breast implants. Id. at *1. Her treating doctors repeatedly recommended that she undergo a mastectomy, but the defendants rejected these recommendations as not medically necessary. The court denied the defendants’ motion for summary judgment on the surgery claim and rejected the idea that the case was about a disagreement over treatment choice, pointing out that denials of prescribed treatment are not medical treatment decisions because there is no treatment. Id. at *7 (emphasis added). Because every doctor who had actually examined and treated the plaintiff recommended the surgery, the court held that the defendants’ denials “had nothing to do with the appropriate treatment of the plaintiff’s individual condition.” Id. The denials were “based on generalities having nothing to do with the actual … condition of the plaintiff.” Id.
The same reasoning applies to Mr. Cobbs’ case. His treating doctors made numerous requests for him to have surgery on his left eye. They noted the decline in Mr. Cobbs’ health and well-being due to the side effects. They noted the increased risk of glaucoma. The defendants did not and could not have provided Mr. Cobbs with an alternative treatment because surgery was needed to remove the cataract. Thus, this case does not center on a disagreement over the prescribed course of care. The defendants’ denial of a surgery that Mr. Cobbs’ doctors said was medically necessary constitutes deliberate indifference to his serious medical needs.
The defendants also incorrectly argue that a delay in receiving care cannot constitute an Eighth Amendment violation unless it causes permanent injury.8 Delay in providing necessary
8 The three-and-a-half-year denial only became a “delay” because the defendants reversed their position and approved the surgery in 2008. The defendants claim their reversal was due to “changing circum-
10

medical treatment can establish deliberate indifference. Scicluna v Wells, 345 F.3d 441, 446-447 (6th Cir. 2003) (denying summary judgment to a doctor based on a three-week delay in performing an urgent medical evaluation). Furthermore, where a plaintiff’s claims arise from an injury or illness so obvious that even a layperson would easily recognize the necessity for a doctor’s intervention, the plaintiff does not need to show that – even after receiving the delayed necessary treatment – his medical condition worsened or deteriorated. Blackmore v. Kalamazoo County, 390 F.3d 890, 899-900 (6th Cir. 2004). Mr. Cobbs’ condition was obvious to anyone who saw him: as his doctors noted, the cataract in his left eye grew so dense his pupil was no longer visible. Thus, he does not need to prove a permanent injury resulting from the delay. The injuries he suffered from 2004 to 2008 while he was denied the surgery are sufficient to sustain his Eighth Amendment claim.
A reasonable jury could find that the defendants acted with deliberate indifference by denying Mr. Cobbs’ second surgery on his left eye. Accordingly, the Court should deny the MDOC defendants’ motion for summary judgment on the plaintiff’s Eighth Amendment claim. II. THE DEFENDANTS ARE NOT ENTITLED TO QUALIFIED IMMUNITY.
The MDOC defendants incorrectly assert that they are entitled to summary judgment based on qualified immunity because the plaintiff has not established a violation of his constitutional rights. Summary judgment is not proper on the grounds of qualified immunity because Mr. Cobbs has alleged facts which, construed most favorably to him, show that the MDOC defendants unreasonably violated his clearly established Eighth Amendment rights by showing
stances,” but those circumstances cannot be attributed to any change in Mr. Cobbs’ health. From early 2005 the cataract was advanced enough to interfere with his vision and to put him at risk of all the symptoms he eventually suffered. The medical reports show no substantive changes that would justify the surgery in 2008 but not justify it in the previous years, calling into question how the MDOC defendants can base their previous denials on the lack of “medical necessity.” See Defendants’ Brief, at 7. Plaintiff’s expert states that there was no change in Mr. Cobbs’ medical condition that would have made the left eye surgery appropriate in February 2008 but inappropriate before that date. (Exh. B, ¶ 7.)
11

deliberate indifference to his serious medical needs. To determine whether a party is entitled to the defense of qualified immunity, a court
should apply a three-pronged test: (1) Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right? (2) Did the official claiming immunity violate a clearly established right that would have been understood by a reasonable person? (3) Has the plaintiff presented sufficient facts, supported by evidence, to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established right?
Saucier v. Katz, 533 U.S. 194, 201 (2001); Higgason v. Stephens, 288 F.3d 868, 876 (6th Cir. 2002). If the plaintiff can establish these three prongs, defendants are not entitled to qualified immunity. Id.
Mr. Cobbs satisfies the first prong because, as discussed in Part I, supra, he has alleged facts which, taken as true, establish that the defendants violated his Eighth Amendment rights through deliberate indifference to his serious medical needs.
The plaintiff satisfies the second prong because the right to medical treatment is a clearly established right. A right is considered to be “clearly established” if a reasonable official would understand that his actions violate the right. Scicluna v. Wells, 345 F3d 441, 446 (6th Cir. 2003) (citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)). MDOC policy can provide evidence of clearly established prisoner rights. Scicluna, supra, at 445. MDOC policy says that “prisoners shall be provided with unimpeded access to a continuum of health care services that is timely.” (Exh. F, at 2.) Corrective or reconstructive surgery is surgery the primary purpose of which is to “restore function.” (Exh. F, at 8.) Under the MDOC’s own definition, cataract removal surgery on the left eye was “presently medically necessary.” See Exh. B, ¶ 6, and Exh. F, at 1.
12

In their motion for summary judgment, the defendants state that they have found no cases holding that a delay in providing cataract surgery can constitute deliberate indifference, implying that therefore Mr. Cobbs’ case does not implicate a clearly established right. Defendants’ Brief, at 9. However, under Anderson v. Creighton, a right may be clearly established even if there is no previous legal case with identical facts. 483 U.S. at 640. A right is clearly established if a reasonable official would deem an action unlawful in light of established precedent. Mr. Cobbs’ serious medical need was obvious: a reasonable health care official would have realized that denying the surgery violated his constitutional rights (as well as MDOC policy). All of Mr. Cobbs’ treating doctors realized that he needed the surgery.
Furthermore, federal courts have recognized that a delay in providing medically necessary eye surgery to an inmate can constitute deliberate indifference. See e.g., Castillo v. Dashiell, 2007 WL 609858, at 7 (E.D.Cal., No. CV S-04-0737, Feb. 27, 2007) (unpublished) (adopted at 2007 WL 933790 (E.D. Cal., Mar 27, 2007)) (denying summary judgment on Eighth Amendment claim where surgery was not performed until 10 months after inmate lost vision in one eye and noting that providing some medical treatment will not preclude an Eighth Amendment violation unless it is “competent treatment”) (attached as Exh. H). See also Taghipour v. Chastine, 43 F.3d 669 (5th Cir. 1994) (vacating dismissal to defendants on prisoner’s Eighth Amendment claim based on delay in providing proper medical treatment after prisoner sustained an eye injury). Mr. Cobbs satisfies the second prong of the qualified immunity test because he was denied a clearly established right.
The third and final prong of the qualified immunity test is satisfied because the facts show that the defendants’ actions were objectively unreasonable in light of the plaintiff’s clearly established right. It is hard to imagine how Mr. Cobbs or his treating doctors could have under-
13

scored the need for the surgery any further. Objective medical evidence accompanied and sup-
ported their requests.
Mr. Cobbs has met all three prongs of the qualified immunity test. The defendants knew
that Mr. Cobbs had a serious medical condition requiring treatment. A reasonable health official,
knowing that the cataract surgery had been prescribed and that Mr. Cobbs’ condition was wor-
sening, would have approved the surgery (or would not have waited until the patient brought a
lawsuit to take action). On the facts presented, the denial of care from 2004 to 2008 was objec-
tively unreasonable in light of Mr. Cobbs’ clearly established right. In this case a reasonable jury
could find that the defendants not only acted with deliberate indifference, but that they knowing-
ly and willfully violated Mr. Cobbs’ Eighth Amendment rights. The defendants are not entitled
to qualified immunity.
Conclusion
For the above reasons, the plaintiff respectfully requests that the MDOC defendants’ mo-
tion for summary judgment be denied.
Respectfully submitted,
s/ Paul D. Reingold Michigan Clinical Law Program Attorneys for Plaintiff 363 Legal Research Building 801 Monroe Street Ann Arbor, MI 48109-1215 (734) 763-4319 pdr@umich.edu – P27594
s/ Laura Cunningham Student Attorney for Plaintiff
s/ Jolene Meiring Student Attorney for Plaintiff
Dated: October 17, 2008
14

Index of Exhibits

Exhibit A: Exhibit B: Exhibit C: Exhibit D: Exhibit E: Exhibit F: Exhibit G: Exhibit H: Exhibit I:

Declaration of Dallas Cobbs Declaration of Dr. Alan Sugar Medical Records Dallas Cobbs’ Health Care Requests Dallas Cobbs’ Grievances and Responses MDOC Policy Statements Cook v. Martin (6th Cir. 2005) Castillo v. Dashiell (E.D.Cal., Feb. 27, 2007) Titlow v. Corrections Medical Services (E.D. Mich., Mar. 31, 2008)

15

Proof of Service

The plaintiff’s brief in response to the MDOC defendants’ motion for summary judgment, together with exhibits and this proof of service, were filed using the Court’s ECF system, which will provide same-day e-mail service upon all counsel of record.

Dated: October 17, 2008

/s/ Paul D. Reingold Attorney for Plaintiff pdr@umich.edu - P27594

16

 
 Case: 1:07-cv-14644 As of: 05/23/2013 01:25 PM EDT 1 of 15
CLOSED,STAYED,reassigned
U.S. District Court Eastern District of Michigan (Bay City) CIVIL DOCKET FOR CASE #: 1:07−cv−14644−TLL−CEB

Cobbs v. Pramstaller et al Assigned to: District Judge Thomas L. Ludington Referred to: Magistrate Judge Charles E. Binder Case in other court: U.S. Court of Appeals − Sixth Circuit,
10−02089 Cause: No cause code entered
Plaintiff

Date Filed: 10/30/2007 Date Terminated: 09/21/2012 Jury Demand: Both Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Dallas Cobbs

represented by Paul D. Reingold University of Michigan 801 Monroe Street 363 Legal Research Bldg Ann Arbor, MI 48109 734−763−4319 Email: mclp@umich.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant George J Pramstaller Chief Medical Officer, Michigan Department of Corrections TERMINATED: 05/30/2012
Defendant John Doe 1−3; members of the Medical Service Advisory Committee TERMINATED: 09/30/2009

represented by Clifton B. Schneider MI Dept of Attorney General 525 W. Ottawa Street P.O. Box 30217 Lansing, MI 48909 517−335−7021 Fax: 517−335−7157 Email: schneiderc1@michigan.gov ATTORNEY TO BE NOTICED
Cori E. Barkman MI Dept of Atty Gen Corrections Division P. O. Box 30217 Lansing, MI 48909 517−335−7021 Email: BarkmanC@michigan.gov TERMINATED: 09/22/2008
Michael R. Dean Michigan Department of Attorney General 525 W. Ottawa 4th Floor P.O. Box 30217 Lansing, MI 48909 517−335−7021 Fax: 517−335−7157 Email: deanm2@mich.gov ATTORNEY TO BE NOTICED

Case: 1:07-cv-14644 As of: 05/23/2013 01:25 PM EDT 2 of 15

Defendant Craig Hutchinson Doctor TERMINATED: 07/22/2010
Defendant William Borgerding Doctor Defendant Marcella Clark
Defendant James Dillon Doctor TERMINATED: 06/24/2009

represented by Randall A. Juip Foley Baron Metzger &Juip, PLLC 38777 Six Mile Road, Ste. 300 Livonia, MI 48152 (734) 742−1800 Fax: (734) 521−2379 Email: rajuip@fbmjlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony D. Pignotti Foley Baron Metzger &Juip, PLLC 38777 Six Mile Road, Ste. 300 Livonia, MI 48152 (734) 742−1800 Fax: (734) 521−2379 Email: apignotti@fbmjlaw.com ATTORNEY TO BE NOTICED
Brian J. Richtarcik Foley Baron Metzger &Juip, PLLC 38777 Six Mile Road, Ste. 300 Livonia, MI 48152 United Sta (734) 742−1800 Fax: (734) 521−2379 Email: brichtarcik@fbmjlaw.com ATTORNEY TO BE NOTICED
Ronald W. Chapman Chapman Assoc. 40950 N. Woodward Avenue Suite 120 Bloomfield Hills, MI 48304 248−644−6326 Fax: 248−644−6324 Email: rchapman@chapmanlawgroup.com TERMINATED: 07/10/2009
represented by Clifton B. Schneider (See above for address) ATTORNEY TO BE NOTICED
represented by Clifton B. Schneider (See above for address) ATTORNEY TO BE NOTICED
Cori E. Barkman (See above for address) TERMINATED: 09/22/2008
represented by Adam Purnell MI Dept of Atty Gen Corrections Division P. O. Box 30217 Lansing, MI 48909 517−335−7021 Email: AG−PEET@michigan.gov

Case: 1:07-cv-14644 As of: 05/23/2013 01:25 PM EDT 3 of 15

TERMINATED: 12/30/2009 ATTORNEY TO BE NOTICED

James T. Farrell Michigan Department of Attorney General Public Employment, Elections and Tort P.O. Box 30736 Lansing, MI 48909 517−373−6434 Email: farrellj@michigan.gov TERMINATED: 01/12/2010 ATTORNEY TO BE NOTICED

Mark V. Schoen − INACTIVE Office of Attorney General Public Employment, Elections, Tort Div. P.O. 30736 Lansing, MI 48909 517−373−6434 TERMINATED: 02/02/2009

Defendant
Roldert Fischre Doctor TERMINATED: 06/24/2009

represented by Adam Purnell (See above for address) TERMINATED: 12/30/2009 ATTORNEY TO BE NOTICED

James T. Farrell (See above for address) TERMINATED: 01/12/2010 ATTORNEY TO BE NOTICED

Mark V. Schoen − INACTIVE (See above for address) TERMINATED: 02/02/2009

Defendant
Keith Ivens Doctor

Defendant Gregory Naylor

represented by Clifton B. Schneider (See above for address) ATTORNEY TO BE NOTICED

Cori E. Barkman (See above for address) TERMINATED: 09/22/2008

Defendant
Bency Mathai Doctor TERMINATED: 07/22/2010

represented by Randall A. Juip (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anthony D. Pignotti (See above for address) ATTORNEY TO BE NOTICED

Brian J. Richtarcik (See above for address) ATTORNEY TO BE NOTICED

Case: 1:07-cv-14644 As of: 05/23/2013 01:25 PM EDT 4 of 15

Defendant Bonita Davis Neighbors Defendant Walter Ormes Doctor TERMINATED: 09/23/2008
Defendant Haresh Pandya Doctor
Defendant Chris Samy Doctor Defendant Correctional Medical Services
Defendant Dr. Bonita Davis Neighbors TERMINATED: 12/08/2009

represented by Clifton B. Schneider (See above for address) ATTORNEY TO BE NOTICED
Cori E. Barkman (See above for address) TERMINATED: 09/22/2008
represented by Clifton B. Schneider (See above for address) ATTORNEY TO BE NOTICED
Cori E. Barkman (See above for address) TERMINATED: 09/22/2008
represented by Clifton B. Schneider (See above for address) ATTORNEY TO BE NOTICED
represented by Randall A. Juip (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony D. Pignotti (See above for address) ATTORNEY TO BE NOTICED
Brian J. Richtarcik (See above for address) ATTORNEY TO BE NOTICED
Ronald W. Chapman (See above for address) TERMINATED: 07/10/2009
represented by Clifton B. Schneider (See above for address) ATTORNEY TO BE NOTICED
Cori E. Barkman (See above for address) TERMINATED: 09/22/2008

Date Filed 10/30/2007
10/30/2007

# Docket Text
1 COMPLAINT filed by Dallas Cobbs against defendants. (DPer) (Entered: 10/31/2007)
2 APPLICATION to proceed without prepayment of fees by Dallas Cobbs. (DPer) (Entered: 10/31/2007)

Case: 1:07-cv-14644 As of: 05/23/2013 01:25 PM EDT 5 of 15

11/07/2007 11/15/2007
11/15/2007 11/28/2007 11/28/2007 11/29/2007 12/05/2007 12/06/2007
12/06/2007 12/13/2007 12/21/2007 01/09/2008 01/15/2008
01/18/2008
01/18/2008 01/28/2008 02/06/2008 02/06/2008 02/06/2008
02/27/2008 02/27/2008 02/27/2008

3 [ORDER Referring Pretrial Matters to Magistrate Judge Charles E Binder]. Signed by Honorable Anna Diggs Taylor. (JCur) (Entered: 11/07/2007)
4 ORDER granting 2 Application to Proceed Without Prepayment of Fees and Directing Payment of an Initial Partial Filing Fee in the amount of $20.00 and subsequent payments, And Directing Service. Signed by Magistrate Judge Binder. (JBro) (Entered: 11/15/2007)
Remark: documents given to USM this date for service on Defendant Pramstaller. (JBro) (Entered: 11/15/2007)
5 ORDER Regarding Identification of John Doe Defendants. Signed by Magistrate Judge Binder. (JBro) (Entered: 11/28/2007)
7 Summons Returned Unexecuted as to George J Pramstaller. (JCur) (Entered: 11/30/2007)
6 FEE Received in the amount of $20.00 for initial partial payment by Dallas Cobbs − Receipt No. 21125−BC (DHam) (Entered: 11/29/2007)
Remark: new documents prepared and given to USM this date for 2nd attempt at service on Defendant Pramstaller. (JBro) (Entered: 12/05/2007)
Remark: USM advised Court today that the documents for Defendant Pramstaller were re−mailed on 11/20, the replacement documents were not needed. (JBro) (Entered: 12/06/2007)
8 WAIVER OF SERVICE Returned Executed. George J Pramstaller waiver sent on 11/16/2007, answer due 1/15/2008. (RHut) (Entered: 12/06/2007)
9 NOTICE of Appearance by Clifton B. Schneider on behalf of George J Pramstaller. (Schneider, Clifton) (Entered: 12/13/2007)
10 MOTION for Preliminary Injunction by Dallas Cobbs. (ATee) (Entered: 12/21/2007)
11 MOTION to Stay Discovery, Brief in Support and Certificate of Service by George J Pramstaller. (Schneider, Clifton) (Entered: 01/09/2008)
12 MOTION for Summary Judgment Under FRCP 56(B), Brief in Support, Exhibit A and Certificate of Service by George J Pramstaller. (Attachments: # 1 Exhibit A, Affidavit of Dr. George Pramstaller) (Schneider, Clifton) (Entered: 01/15/2008)
13 NOTICE Requesting Response to 12 MOTION for Summary Judgment : see image for details. (JBro) Additional attachment(s) added on 1/18/2008 (Broucek, J.). (Entered: 01/18/2008)
14 NOTICE of Correction regarding entry #13. (JBro) (Entered: 01/18/2008)
15 RESPONSE to 10 MOTION for Preliminary Injunction filed by George J Pramstaller. (Schneider, Clifton) (Entered: 01/28/2008)
16 MOTION for Extension of Time to File Responsive Pleading by Dallas Cobbs. (LHac) (Entered: 02/06/2008)
17 MOTION to Stay Defendant's 12 MOTION for Summary Judgment Under FRCP 56(B) Pending Limited Discovery by Dallas Cobbs. (LHac) (Entered: 02/06/2008)
18 CERTIFICATE OF SERVICE by Dallas Cobbs re 17 MOTION to Stay re 12 MOTION for Summary Judgment Under FRCP 56(B) and 16 MOTION for Extension of Time to File Responsive Pleading (LHac) (Entered: 02/06/2008)
19 MOTION for Leave to File Amended Complaint by Dallas Cobbs. (SSch) (Entered: 02/27/2008)
20 MOTION for Enlargement of Time to Effect Process by Dallas Cobbs. (SSch) (Entered: 02/27/2008)
21 CERTIFICATE OF SERVICE by Dallas Cobbs (SSch) (Entered: 02/27/2008)

Case: 1:07-cv-14644 As of: 05/23/2013 01:25 PM EDT 6 of 15

03/07/2008 03/25/2008 03/27/2008 03/27/2008 03/27/2008
03/31/2008 04/04/2008 04/10/2008 04/11/2008 04/11/2008
04/14/2008 04/14/2008 04/14/2008 04/14/2008 04/14/2008 04/15/2008 04/22/2008 06/04/2008 06/10/2008

22 MOTION to supplement plaintiff's motion for preliminary injunction by Dallas Cobbs. (RHut) (Entered: 03/07/2008)
23 MOTION for Summary Judgment Brief in Support, Exhibit A and Certificate of Service by George J Pramstaller. (Attachments: # 1 Exhibit A, Consultation Request) (Schneider, Clifton) (Entered: 03/25/2008)
24 ORDER of Assignment of Counsel. [see image for details] Signed by Magistrate Judge Charles E Binder. (JBro) (Entered: 03/27/2008)
25 NOTICE of Telephone Conference with Magistrate Judge Binder: see image for details. (JBro) (Entered: 03/27/2008)
26 MOTION to Withdraw 12 MOTION for Summary Judgment Under FRCP 56(B), Brief in Support, Exhibit A and Certificate of Service Motion to Withdraw, Brief in Support and Certificate of Service by George J Pramstaller. (Schneider, Clifton) (Entered: 03/27/2008)
27 ATTORNEY APPEARANCE: Paul D. Reingold appearing on behalf of Dallas Cobbs (Reingold, Paul) (Entered: 03/31/2008)
28 ATTORNEY SUBSTITUTION for George J Pramstaller: Cori E. Barkman added. Attorney Clifton B. Schneider terminated. (Barkman, Cori) (Entered: 04/04/2008)
Minute Entry − status conference held by telephone on 4/10/2008 with Magistrate Judge Charles E Binder. (JBro) (Entered: 04/10/2008)
TEXT−ONLY ORDER on 19 MOTION for Leave to File filed by Dallas Cobbs: counsel withdrew this motion during status conference held 4/10/08. Signed by Magistrate Judge Charles E Binder. (JBro) (Entered: 04/11/2008)
29 NOTICE by George J Pramstaller of withdrawal of 26 MOTION to Withdraw 12 MOTION for Summary Judgment Under FRCP 56(B), Brief in Support, Exhibit A and Certificate of Service Motion to Withdraw, Brief in Support and Certificate of Service MOTION to Withdraw 12 MOTION for Summary Judgment Under FRCP 56(B), Brief in Support, Exhibit A and Certificate of Service Motion to Withdraw, Brief in Support and Certificate of Service, 12 MOTION for Summary Judgment Under FRCP 56(B), Brief in Support, Exhibit A and Certificate of Service, 23 MOTION for Summary Judgment Brief in Support, Exhibit A and Certificate of Service. (Barkman, Cori) (Entered: 04/11/2008)
30 ORDER granting 20 Motion to enlarge time to effect process. Signed by Magistrate Judge Charles E Binder. (JBro) (Entered: 04/14/2008)
31 ORDER denying as moot 16 Motion for Extension of Time to Answer. Signed by Magistrate Judge Charles E Binder. (JBro) (Entered: 04/14/2008)
32 ORDER granting 11 Motion to Stay Discovery. Signed by Magistrate Judge Charles E Binder. (JBro) (Entered: 04/14/2008)
33 ORDER denying 17 Motion to Stay. Signed by Magistrate Judge Charles E Binder. (JBro) (Entered: 04/14/2008)
34 NOTICE by Dallas Cobbs of withdrawal of 22 MOTION to supplement plaintiff's motion for preliminary injunction, 10 MOTION for Preliminary Injunction. (Reingold, Paul) (Entered: 04/14/2008)
35 REQUEST Plaintiff's request for identification of John Does by Dallas Cobbs. (Reingold, Paul) (Entered: 04/15/2008)
36 ORDER For Further Proceedings: dispositive motion due 6/2/08; response due 7/2/08; reply due 7/16/08. [see image for further details]. Signed by Magistrate Judge Charles E Binder. (JBro) (Entered: 04/22/2008)
37 ORDER GRANTING LEAVE TO FILE AMENDED COMPLAINT AND LIFTING STAY. Signed by Magistrate Judge Charles E Binder. (JBro) (Entered: 06/04/2008)
38 AMENDED COMPLAINT with Jury Demand filed by Dallas Cobbs against all defendants. (Reingold, Paul) (Entered: 06/10/2008)

Case: 1:07-cv-14644 As of: 05/23/2013 01:25 PM EDT 7 of 15

06/10/2008
06/13/2008
06/20/2008 06/30/2008 07/03/2008 07/03/2008
07/03/2008 07/03/2008 07/07/2008 07/07/2008 07/08/2008 07/08/2008 07/08/2008 07/08/2008 07/14/2008 07/14/2008
08/11/2008
08/12/2008 08/18/2008 08/19/2008 08/19/2008

REQUEST for SUMMONS for Craig Hutchinson, William Borgerding, Marcella Clark, James Dillon, Roldert Fischre, Keith Ivens, Gregory Naylor, Bency Mathai, Bonita Davis Neighbors, Walter Ormes, Haresh Pandya, Chris Samy, Correctional Medical Services. (Reingold, Paul) (Entered: 06/10/2008)
39 SUMMONS Issued for *Craig Hutchinson, William Borgerding, Marcella Clark, James Dillon, Roldert Fischre, Keith Ivens, Gregory Naylor, Bency Mathai, Bonita Davis Neighbors, Walter Ormes, Haresh Pandya, Chris Samy, Correctional Medical Services* (ATee) (Entered: 06/13/2008)
Remark: documents given to U.S. Marshal this date for service of 1st Amended Complaint on defendants. (JBro) (Entered: 06/20/2008)
40 WAIVER OF SERVICE Returned Executed. Chris Samy waiver sent on 6/25/2008, answer due 8/25/2008. (JCre) (Entered: 07/01/2008)
41 WAIVER OF SERVICE Returned Executed. Craig Hutchinson waiver sent on 6/30/2008, answer due 8/29/2008. (Richtarcik, Brian) (Entered: 07/03/2008)
42 WAIVER OF SERVICE Returned Executed. Correctional Medical Services waiver sent on 6/30/2008, answer due 8/29/2008. (Richtarcik, Brian) (Entered: 07/03/2008)
43 NOTICE of Appearance by Ronald W. Chapman on behalf of Craig Hutchinson, Correctional Medical Services. (Chapman, Ronald) (Entered: 07/03/2008)
44 NOTICE of Appearance by Brian J. Richtarcik on behalf of Craig Hutchinson, Correctional Medical Services. (Richtarcik, Brian) (Entered: 07/03/2008)
45 WAIVER OF SERVICE Returned Executed. William Borgerding waiver sent on 6/25/2008, answer due 8/25/2008. (DHam) (Entered: 07/07/2008)
46 WAIVER OF SERVICE Returned Executed. Marcella Clark waiver sent on 6/25/2008, answer due 8/25/2008. (DHam) (Entered: 07/07/2008)
47 WAIVER OF SERVICE Returned Executed. Craig Hutchinson waiver sent on 6/24/2008, answer due 8/25/2008. (JCre) (Entered: 07/08/2008)
48 WAIVER OF SERVICE Returned Executed. Walter Ormes waiver sent on 6/25/2008, answer due 8/25/2008. (JCre) (Entered: 07/08/2008)
49 WAIVER OF SERVICE Returned Executed. Correctional Medical Services waiver sent on 6/24/2008, answer due 8/25/2008. (JCre) (Entered: 07/08/2008)
50 WAIVER OF SERVICE Returned Executed. Haresh Pandya waiver sent on 6/25/2008, answer due 8/25/2008. (JCre) (Entered: 07/08/2008)
51 WAIVER OF SERVICE Returned Executed. Gregory Naylor waiver sent on 6/25/2008, answer due 8/25/2008. (JCre) (Entered: 07/14/2008)
52 NOTICE of Appearance by Cori E. Barkman on behalf of Marcella Clark, Gregory Naylor, Walter Ormes, Haresh Pandya, George J Pramstaller. (Barkman, Cori) (Entered: 07/14/2008)
53 ANSWER to Amended Complaint with Affirmative Defenses with Jury Demand by Marcella Clark, Gregory Naylor, Walter Ormes, Haresh Pandya, George J Pramstaller. (Barkman, Cori) (Entered: 08/11/2008)
54 NOTICE to Submit Dispositive Motion: see image for details. (JBro) (Entered: 08/12/2008)
55 WAIVER OF SERVICE Returned Executed. Roldert Fischre waiver sent on 6/25/2008, answer due 8/25/2008. (KGeh) (Entered: 08/19/2008)
56 ANSWER to Amended Complaint by Craig Hutchinson, Bency Mathai, Correctional Medical Services. (Richtarcik, Brian) (Entered: 08/19/2008)
57 DEMAND for Trial by Jury by Craig Hutchinson, Bency Mathai, Correctional Medical Services (Richtarcik, Brian) (Entered: 08/19/2008)

Case: 1:07-cv-14644 As of: 05/23/2013 01:25 PM EDT 8 of 15

08/19/2008 08/19/2008 08/20/2008 08/28/2008 08/29/2008
09/04/2008 09/10/2008 09/11/2008 09/12/2008 09/22/2008
09/23/2008 10/10/2008 10/13/2008
10/16/2008
10/16/2008
10/17/2008 10/23/2008 10/24/2008

58 AFFIRMATIVE DEFENSES by Craig Hutchinson, Bency Mathai, Correctional Medical Services (Richtarcik, Brian) (Entered: 08/19/2008)
59 STATEMENT of DISCLOSURE of CORPORATE AFFILIATIONS and FINANCIAL INTEREST by Correctional Medical Services (Richtarcik, Brian) (Entered: 08/19/2008)
60 NOTICE To Submit Dispositive Motion: see image for details. (JBro) (Entered: 08/20/2008)
61 ATTORNEY APPEARANCE: Mark V. Schoen appearing on behalf of James Dillon, Roldert Fischre (Schoen, Mark) (Entered: 08/28/2008)
62 MOTION re 37 Order Lifting Stay, 60 Notice (Other) for Limited Discovery by Dallas Cobbs. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit Ex A Approval of Cataract Surgery, # 3 Exhibit Ex B Plaintiff's Interrogatories, # 4 Exhibit Ex C Plaintiff's Request for Documents, # 5 Exhibit Ex D Plaintiff's Request for Admissions) (Reingold, Paul) (Entered: 08/29/2008)
63 WAIVER OF SERVICE Returned Executed. Bonita Davis Neighbors waiver sent on 6/25/2008, answer due 8/25/2008. (JCre) (Entered: 09/05/2008)
64 NOTICE of Appearance by Cori E. Barkman on behalf of Bonita Davis Neighbors. (Barkman, Cori) (Entered: 09/10/2008)
65 ANSWER to Amended Complaint with Affirmative Defenses with Jury Demand by James Dillon, Roldert Fischre. (Schoen, Mark) (Entered: 09/11/2008)
66 MOTION for Summary Judgment by Marcella Clark, Gregory Naylor, Haresh Pandya, Bonita Davis Neighbors, George J Pramstaller. (Attachments: # 1 Exhibit A − Aff of Tate) (Barkman, Cori) (Entered: 09/12/2008)
67 ATTORNEY SUBSTITUTION for Marcella Clark, Gregory Naylor, Walter Ormes, Haresh Pandya, Bonita Davis Neighbors, George J Pramstaller: Clifton B. Schneider added. Attorney Cori E. Barkman terminated. (Schneider, Clifton) (Entered: 09/22/2008)
68 STIPULATION AND ORDER to Dismiss Defendant Ormes without prejudice, and without costs or attorney fees. Signed by District Judge Anna Diggs Taylor. (JCur) (Entered: 09/23/2008)
69 ORDER granting 62 Motion to allow limited discovery. Signed by Magistrate Judge Charles E Binder. (JBro) (Entered: 10/10/2008)
70 RESPONSE to 69 Order on Motion for Miscellaneous Relief by Marcella Clark, Gregory Naylor, Haresh Pandya, George J Pramstaller. (Attachments: # 1 Exhibit 1 − Dfts POS dated 092408, # 2 Exhibit 2 − Dfts POS dated 100108) (Schneider, Clifton) (Entered: 10/13/2008)
71 RESPONSE to 66 MOTION for Summary Judgment filed by Dallas Cobbs. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit EX A Declaration of Cobbs, # 3 Exhibit EX B Declaration of Dr. Sugar, # 4 Exhibit EX C Medical Records, # 5 Exhibit EX D Cobbs Health Care Requests, # 6 Exhibit EX E Cobbs Grievances and Responses, # 7 Exhibit EX F MDOC Policy Statements) (Reingold, Paul) (Entered: 10/16/2008)
72 INDEX of Exhibits re 66 MOTION for Summary Judgment, 71 Response to Motion, by Dallas Cobbs (Attachments: # 1 Exhibit EX G Cook v Martin, # 2 Exhibit EX H Castillo v Dashiell, # 3 Exhibit EX I Titlow v Corrections Medical Services) (Reingold, Paul) (Entered: 10/16/2008)
73 NOTICE of Telephone Status Conference: see image for details. (JBro) (Entered: 10/17/2008)
Minute Entry − status conference held by phone on 10/23/2008 with Magistrate Judge Charles E Binder. (JBro) (Entered: 10/23/2008)
74 ORDER For Further Proceedings: see image for details. Signed by Magistrate Judge Charles E Binder. (JBro) (Entered: 10/24/2008)

Case: 1:07-cv-14644 As of: 05/23/2013 01:25 PM EDT 9 of 15

10/27/2008 11/14/2008 12/05/2008
12/11/2008 12/19/2008 12/23/2008
02/02/2009 02/12/2009
02/13/2009 03/03/2009 03/18/2009 04/17/2009 05/19/2009
05/26/2009 06/11/2009

75 REPLY to Response re 66 MOTION for Summary Judgment and Certificate of Service filed by Marcella Clark, Gregory Naylor, Haresh Pandya, Bonita Davis Neighbors, George J Pramstaller. (Schneider, Clifton) (Entered: 10/27/2008)
76 Amended ORDER For Further Proceedings. Signed by Magistrate Judge Charles E Binder. (JBro) (Entered: 11/14/2008)
77 REPORT AND RECOMMENDATION That 66 MOTION for Summary Judgment filed by Haresh Pandya, George J Pramstaller, Gregory Naylor, Bonita Davis Neighbors, Marcella Clark be GRANTED as to request for injunctive relief; DENIED in all other respects. Signed by Magistrate Judge Charles E Binder. (JBro) (Entered: 12/05/2008)
78 PROTECTIVE ORDER signed by Magistrate Judge Charles E Binder. (JBro) (Entered: 12/11/2008)
79 OBJECTION to 77 Report and Recommendation by Marcella Clark, Gregory Naylor, Haresh Pandya, Bonita Davis Neighbors, George J Pramstaller. (Schneider, Clifton) (Entered: 12/19/2008)
80 RESPONSE to 79 Objection to Report and Recommendation, 77 REPORT AND RECOMMENDATION re 66 MOTION for Summary Judgment filed by Haresh Pandya, George J Pramstaller, Gregory Naylor, Bonita Davis Neighbors, Marcella ClarkREPORT AND RECOMMENDATION re 66 MOTION for Summary Judgment filed by Haresh Pandya, George J Pramstaller, Gregory Naylor, Bonita Davis Neighbors, Marcella Clark by Dallas Cobbs. (Reingold, Paul) (Entered: 12/23/2008)
81 ATTORNEY SUBSTITUTION for James Dillon, Roldert Fischre: Adam Purnell added. Attorney Mark V. Schoen terminated. with Cert. of Service (Purnell, Adam) (Entered: 02/02/2009)
82 ORDER Adopting 77 Report and Recommendation that 66 Motion for Summary Judgment filed by Haresh Pandya, George J Pramstaller, Gregory Naylor, Bonita Davis Neighbors, Marcella Clark, be GRANTED as to request for injunctive relief; DENIED in all other respects. 77 Signed by District Judge Anna Diggs Taylor. (JCur) (Entered: 02/12/2009)
83 NOTICE of Telephone Conference with Magistrate Judge Binder: see image for details. (JBro) (Entered: 02/13/2009)
84 ATTORNEY APPEARANCE: James T. Farrell appearing on behalf of James Dillon, Roldert Fischre (Farrell, James) (Entered: 03/03/2009)
85 ORDER Setting Deadlines: see image for details. Signed by Magistrate Judge Charles E Binder. (JBro) (Entered: 03/18/2009)
Minute Entry − status conference held by telephone on 4/17/2009 with Magistrate Judge Charles E Binder. (JBro) (Entered: 04/20/2009)
86 MOTION to Dismiss Pursuant to 42 USC 1997e(a) and FRCP 12(b)(6) by Craig Hutchinson, Bency Mathai. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Affidavit of James Armstrong, # 3 Exhibit Attachment 1 − MDOC Policy Directive 03.02.130 (December 19, 2003 version), # 4 Exhibit Attachment 2 − MDOC Grievance Inquiry Screen for Dallas Cobbs, #164276, # 5 Exhibit Attachment 3 − Grievance RRF−2004−12−1151−12z, # 6 Exhibit Attachment 4 − Grievance RRF−2006−11−757−12g, # 7 Exhibit B − Sullivan v Kasajaru case) (Richtarcik, Brian) (Entered: 05/19/2009)
87 NOTICE Requesting Response to 86 MOTION to Dismiss : see image for details. (JBro) (Entered: 05/26/2009)
88 RESPONSE to 86 MOTION to Dismiss Pursuant to 42 USC 1997e(a) and FRCP 12(b)(6) MOTION to Dismiss Pursuant to 42 USC 1997e(a) and FRCP 12(b)(6) MOTION to Dismiss Pursuant to 42 USC 1997e(a) and FRCP 12(b)(6) filed by Dallas Cobbs. (Attachments: # 1 Index of Exhibits Index, # 2 Exhibit Ex 1 Cobbs Grievances &Responses, # 3 Exhibit Ex 2 MDOC Policy 03.02.130, # 4 Exhibit Ex 3 Cobbs Letters, # 5 Exhibit Ex 4 ID of John Doe Defs, # 6 Exhibit Ex 5 Grear v Gelabert) (Reingold, Paul) (Entered: 06/11/2009)

Case: 1:07-cv-14644 As of: 05/23/2013 01:25 PM EDT 10 of 15

06/17/2009 06/24/2009 06/25/2009
07/10/2009 07/10/2009 07/30/2009
08/17/2009 08/20/2009
09/30/2009 09/30/2009 10/15/2009 10/28/2009 10/30/2009 12/01/2009 12/01/2009
12/01/2009

89 Notice of Filing FEE Paid in Full (DEld) (Entered: 06/18/2009)
90 STIPULATION AND ORDER Dismissing Defendants James Dillon and Roldert Fischre without prejudice. Signed by District Judge Anna Diggs Taylor. (JCur) (Entered: 06/24/2009)
91 REPLY to Response re 86 MOTION to Dismiss Pursuant to 42 USC 1997e(a) and FRCP 12(b)(6) MOTION to Dismiss Pursuant to 42 USC 1997e(a) and FRCP 12(b)(6) MOTION to Dismiss Pursuant to 42 USC 1997e(a) and FRCP 12(b)(6) filed by Craig Hutchinson, Bency Mathai. (Richtarcik, Brian) (Entered: 06/25/2009)
92 Notice, Consent, and ORDER For Substitution of Counsel: see image for details. Signed by Magistrate Judge Charles E Binder. (JBro) (Entered: 07/10/2009)
93 STIPULATION AND ORDER Extending Discovery: see image for details. Signed by Magistrate Judge Charles E Binder. (JBro) (Entered: 07/10/2009)
94 REPORT AND RECOMMENDATION recommending denying 86 MOTION to Dismiss Pursuant to 42 USC 1997e(a) and FRCP 12(b)(6)filed by Craig Hutchinson, Bency Mathai. Signed by Magistrate Judge Charles E Binder. (PMor) (Entered: 07/30/2009)
95 OBJECTION to 94 Report and Recommendation by Craig Hutchinson, Bency Mathai. (Richtarcik, Brian) (Entered: 08/17/2009)
96 RESPONSE to 94 REPORT AND RECOMMENDATION re 86 MOTION to Dismiss Pursuant to 42 USC 1997e(a) and FRCP 12(b)(6) MOTION to Dismiss Pursuant to 42 USC 1997e(a) and FRCP 12(b)(6) MOTION to Dismiss Pursuant to 42 USC 1997e(a) and FRCP 12(b)(6) filed filed by Dallas Cobbs. (Reingold, Paul) Modified on 8/20/2009 (PMil).[WRONG DOCKET EVENT SELECTED] (Entered: 08/20/2009)
97 ORDER Adopting 94 Report and Recommendation denying, 86 Motion to Dismiss, filed by Craig Hutchinson, Bency Mathai. Signed by District Judge Anna Diggs Taylor. (JCur) (Entered: 09/30/2009)
98 NOTICE of Telephone Conference with Magistrate Judge Binder: see image for details. (JBro) (Entered: 09/30/2009)
Minute Entry − status conference held by telephone on 10/15/2009 with Magistrate Judge Binder. (JBro) (Entered: 10/15/2009)
99 ATTORNEY APPEARANCE: Anthony D. Pignotti appearing on behalf of Craig Hutchinson, Correctional Medical Services (Pignotti, Anthony) (Entered: 10/28/2009)
100 ORDER Modifying Discovery Schedule: see image for details. Signed by Magistrate Judge Charles E Binder. (JBro) (Entered: 10/30/2009)
101 Ex Parte MOTION for Leave to File Excess Pages Limit Pursuant to E.D. Mich. LR 7.1(c)(3)(A) by Craig Hutchinson, Bency Mathai, Correctional Medical Services. (Richtarcik, Brian) (Entered: 12/01/2009)
102 MOTION for Protective Order to File Documents Under Seal by Craig Hutchinson, Bency Mathai, Correctional Medical Services. (Attachments: # 1 Exhibit A − Proposed Protective Order Permitting Documents to be Filed Under Seal) (Richtarcik, Brian) (Entered: 12/01/2009)
103 MOTION for Summary Judgment Pursuant to Fed. R. Civ. P. 56 by Craig Hutchinson, Bency Mathai, Correctional Medical Services. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − MDOC Offender Tracking Information System file for Dallas Cobbs, #164276, # 3 Exhibit B − Judgment of Sentence Form, # 4 Exhibit C − Deposition Transcript of Craig Hutchinson, MD, # 5 Exhibit D − Deposition Transcript of Michael McGrath, OD, # 6 Exhibit E − MDOC Transfer Order, # 7 Exhibit F − Excerpts of MDOC Medical Chart of Dallas Cobbs, #164276 {Filed Under Seal}, # 8 Exhibit G − MDOC Policy Directive 03.04.100, # 9 Exhibit H − MDOC Operating Procedure 03.04.100, # 10 Exhibit I − Deposition Transcript of George Pramstaller, MD, # 11 Exhibit J − "Ophthalmology

Case: 1:07-cv-14644 As of: 05/23/2013 01:25 PM EDT 11 of 15

12/01/2009 12/08/2009 12/08/2009 12/08/2009 12/23/2009
12/23/2009 12/23/2009 12/24/2009 12/30/2009 01/08/2010
01/11/2010

Guidance", Federal Bureau of Prisons, February, 2008, # 12 Exhibit K − "Clinical Policy Bulletin: Cataract Removal Surgery", Aetna, Effective Dated: 6/12/2001, # 13 Exhibit L − "Local Coverage Determinations," Centers for Medicare and Medicaid Services (CMS), Effective Dates: 6/5/2009, # 14 Exhibit M − Edwards v Bradford case, # 15 Exhibit N − Hurt v Mahon case, # 16 Exhibit O − Williams v Shelton case, # 17 Exhibit P − Leyster v D'Amico case, # 18 Exhibit Q − Dupuis v Caskey case, # 19 Exhibit R − Rylee v Bureau of Prisons case, # 20 Exhibit S − Rowe v Rivera case, # 21 Exhibit T − Samonte v Bauman case, # 22 Exhibit U − Espinosa v Saladin case, # 23 Exhibit V − Williams v Miles case) (Richtarcik, Brian) (Entered: 12/01/2009)
104 MOTION for Summary Judgment , Brief in Support, and Proof of Service by Marcella Clark, Gregory Naylor, Bonita Davis Neighbors, Haresh Pandya, Bonita Davis Neighbors, George J Pramstaller. (Attachments: # 1 Index of Exhibits Index, # 2 Exhibit Exhibit A) (Schneider, Clifton) (Entered: 12/01/2009)
105 STIPULATION AND ORDER DISMISSING DEFENDANT BONITA NEIGHBORS without prejudice. Signed by District Judge Anna Diggs Taylor. (JCur) (Entered: 12/08/2009)
TEXT−ONLY ORDER on 101 Ex Parte MOTION for Leave to File Excess Pages filed by Craig Hutchinson, Correctional Medical Services, Bency Mathai: motion granted. Signed by Magistrate Judge Charles E Binder. (JBro) (Entered: 12/08/2009)
TEXT−ONLY ORDER granting 102 MOTION for Protective Order to File Documents Under Seal by Craig Hutchinson, Correctional Medical Services, Bency Mathai. Signed by Magistrate Judge Charles E Binder. (JBro) (Entered: 12/08/2009)
106 RESPONSE to 103 MOTION for Summary Judgment Pursuant to Fed. R. Civ. P. 56, 104 MOTION for Summary Judgment , Brief in Support, and Proof of Service filed by Dallas Cobbs. (Attachments: # 1 Index of Exhibits Index, # 2 Exhibit Ex A Declaration of Cobbs, # 3 Exhibit Ex B MDOC Policy and Procedures, # 4 Exhibit Ex C Cobbs Medical Records, # 5 Exhibit Ex D Cobbs Grievances and Responses, # 6 Exhibit Ex E Cobbs Health Care Requests, # 7 Exhibit Ex F Deposition of Dr. McGrath, # 8 Exhibit Ex G Deposition of Piper MD, # 9 Index of Exhibits Ex H Deposition of Pramstaller MD, # 10 Exhibit Ex I Deposition of Hutchinson MD, # 11 Exhibit Ex J Deposition of Nurse Jones, # 12 Exhibit Ex K. MDOC Response to Interrogatory, # 13 Exhibit Ex L CMS Enhance Computer Medical Records, # 14 Exhibit Ex M Declaration of Dastgir MD and Letters, # 15 Exhibit Ex N Declaration of Sugar MD, # 16 Exhibit Ex O CMS Pass Through List, # 17 Exhibit Ex P Snellen Eye Chart, # 18 Exhibit Ex Q Titlow v CMS, # 19 Exhibit Ex R Castillo v Dashiell) (Reingold, Paul) (Entered: 12/23/2009)
107 Ex Parte MOTION for Leave to File Excess Pages and brief by Dallas Cobbs. (Reingold, Paul) (Entered: 12/23/2009)
108 MOTION to Amend/Correct 38 Amended Complaint to Add Custom and Policy Claim by Dallas Cobbs. (Reingold, Paul) (Entered: 12/23/2009)
109 ORDER granting 107 Motion for Leave to File Excess Pages. Signed by Magistrate Judge Charles E Binder. (JBro) (Entered: 12/24/2009)
Attorney Adam Purnell is discontinued from receiving Notices of Electronic Filing. Reason: no longer a party to this action. (Purnell, Adam) (Entered: 12/30/2009)
110 MOTION to Compel Production of Documents by Dallas Cobbs. (Attachments: # 1 Index of Exhibits Index, # 2 Exhibit Ex 1 Pls Supple. Request for Docs 6.17.09, # 3 Exhibit Ex 2 Letter to CMS Defs re Ex 1, 6.17.09, # 4 Exhibit Ex 3 Letter to Defense Counsel 10.28.09, # 5 Exhibit Ex 4 Reichtarcik Letter re doc request 11.12.09, # 6 Exhibit Ex 5 Email to CMS 11.24.09, # 7 Exhibit Ex 6 Email to CMS 12.7.09, # 8 Exhibit Ex 7 Letter to CMS 12.17.09) (Reingold, Paul) (Entered: 01/08/2010)
111 NOTICE Requesting Response to 110 MOTION to Compel Production of Documents: see image for details. (JBro) (Entered: 01/11/2010)

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01/12/2010 01/26/2010
02/04/2010 03/25/2010
04/08/2010
04/08/2010 04/12/2010 04/12/2010 04/14/2010 04/14/2010 04/19/2010 04/21/2010

112 NOTICE of Withdrawal of Attorney James T. Farrell by James Dillon, Roldert Fischre. (Farrell, James) (Entered: 01/12/2010)
113 RESPONSE to 110 MOTION to Compel Production of Documents filed by Craig Hutchinson, Bency Mathai, Correctional Medical Services. (Attachments: # 1 Index of Exhibits, # 2 Exhibit Exhibit A − Pramstaller dep, # 3 Exhibit Exhibit B − Operating Procedure, # 4 Exhibit Exhibit C − Hutchinson dep, # 5 Exhibit Exhibit D − Jones dep, # 6 Exhibit Exhibit E − Pass Through) (Richtarcik, Brian) (Entered: 01/26/2010)
114 REPLY to Response re 110 MOTION to Compel Production of Documents filed by Dallas Cobbs. (Reingold, Paul) (Entered: 02/04/2010)
115 REPORT AND RECOMMENDATION recommending granting 108 MOTION to Amend/Correct 38 Amended Complaint to Add Custom and Policy Claim filed by Dallas Cobbs, recommending granting in part 103 MOTION for Summary Judgment Pursuant to Fed. R. Civ. P. 56 filed by Craig Hutchinson, Correctional Medical Services, Bency Mathai, and recommending that Defendants Hutchison and Mathai be dismissed for lack of requisite personal involvement, and recommending denying 104 MOTION for Summary Judgment , Brief in Support, and Proof of Service filed by Bonita Davis Neighbors, Haresh Pandya, George J Pramstaller, Gregory Naylor, Bonita Davis Neighbors, Marcella Clark Signed by Magistrate Judge Charles E Binder. (PMor) (Entered: 03/25/2010)
116 OBJECTION to 115 Report and Recommendation with Proof of Service by Marcella Clark, Gregory Naylor, Haresh Pandya, George J Pramstaller. (Attachments: # 1 Index of Exhibits A − F, # 2 Exhibit A − Campbell v. Fry; Johnson, # 3 Exhibit B − White v. Snider, et al, # 4 Exhibit C − Wilson v. Turner and Newburn, 2009 U.S. Dist. LEXIS 36632, # 5 Exhibit D − Wilson v. Turner and Newburn, U.S. Dist. LEXIS 50074, # 6 Exhibit E − Padichit v. Cook County Officials, et al, # 7 Exhibit F − Order and Opinion) (Schneider, Clifton) (Entered: 04/08/2010)
117 OBJECTION to 115 Report and Recommendation by Dallas Cobbs. (Attachments: # 1 Exhibit ex 1 operating procedure) (Reingold, Paul) (Entered: 04/08/2010)
118 Ex Parte MOTION for Leave to File Excess Pages with respect to Objections to Report and Recommendation by Correctional Medical Services, Craig Hutchinson, Bency Mathai. (Attachments: # 1 Exhibit Proposed Order) (Pignotti, Anthony) (Entered: 04/12/2010)
119 OBJECTION to 115 Report and Recommendation by Correctional Medical Services, Craig Hutchinson, Bency Mathai. (Attachments: # 1 Index of Exhibits, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit) (Pignotti, Anthony) (Entered: 04/12/2010)
120 ATTORNEY APPEARANCE: Clifton B. Schneider appearing on behalf of William Borgerding, Chris Samy with Proof of Service (Schneider, Clifton) (Entered: 04/14/2010)
121 ANSWER to Amended Complaint with Affirmative Defenses with Jury Demand with Proof of Service by William Borgerding, Marcella Clark, Gregory Naylor, Haresh Pandya, George J Pramstaller, Chris Samy. (Schneider, Clifton) (Entered: 04/14/2010)
122 CERTIFICATE OF SERVICE by William Borgerding, Marcella Clark, Gregory Naylor, Haresh Pandya, George J Pramstaller, Chris Samy re: Defendants Pramstaller, Clark, Naylor, Pandya, Borgerding and Samy's Motion and Brief for Sanctions for Violation of Rule 11 (Schneider, Clifton) (Entered: 04/19/2010)
123 RESPONSE to 116 Objection to Report and Recommendation,, 115 REPORT AND RECOMMENDATION re 108 MOTION to Amend/Correct 38 Amended Complaint to Add Custom and Policy Claim filed by Dallas Cobbs, 103 MOTION for Summary Judgment Pursuant to Fed. R. Civ. P. 56 filed by Craig Hutchinson, CorrectionaREPORT AND RECOMMENDATION re 108 MOTION to Amend/Correct 38 Amended Complaint to Add Custom and Policy Claim filed by Dallas Cobbs, 103 MOTION for Summary Judgment Pursuant to Fed. R. Civ. P. 56 filed by Craig Hutchinson, CorrectionaREPORT AND RECOMMENDATION

Case: 1:07-cv-14644 As of: 05/23/2013 01:25 PM EDT 13 of 15

04/21/2010
04/22/2010 04/22/2010 04/26/2010 04/30/2010 05/03/2010 05/27/2010 06/10/2010 06/17/2010 06/28/2010 07/12/2010
07/22/2010

re 108 MOTION to Amend/Correct 38 Amended Complaint to Add Custom and Policy Claim filed by Dallas Cobbs, 103 MOTION for Summary Judgment Pursuant to Fed. R. Civ. P. 56 filed by Craig Hutchinson, Correctiona by Dallas Cobbs. (Reingold, Paul) (Entered: 04/21/2010)
124 RESPONSE to 115 REPORT AND RECOMMENDATION re 108 MOTION to Amend/Correct 38 Amended Complaint to Add Custom and Policy Claim filed by Dallas Cobbs, 103 MOTION for Summary Judgment Pursuant to Fed. R. Civ. P. 56 filed by Craig Hutchinson, CorrectionaREPORT AND RECOMMENDATION re 108 MOTION to Amend/Correct 38 Amended Complaint to Add Custom and Policy Claim filed by Dallas Cobbs, 103 MOTION for Summary Judgment Pursuant to Fed. R. Civ. P. 56 filed by Craig Hutchinson, CorrectionaREPORT AND RECOMMENDATION re 108 MOTION to Amend/Correct 38 Amended Complaint to Add Custom and Policy Claim filed by Dallas Cobbs, 103 MOTION for Summary Judgment Pursuant to Fed. R. Civ. P. 56 filed by Craig Hutchinson, Correctiona, 119 Objection to Report and Recommendation, by Dallas Cobbs. (Attachments: # 1 Exhibit Order) (Reingold, Paul) (Entered: 04/21/2010)
TEXT−ONLY ORDER Granting 118 MOTION for Leave to File Excess Pages. Document 119 is Accepted for filing. Entered by District Judge Anna Diggs Taylor. (JCur) (Entered: 04/22/2010)
125 SUPPLEMENTAL BRIEF re 124 Response (Free), Response (Free), Response (Free), Response (Free) Amending Pl's Response to CMS Defs' Objections to Rfiled by All Plaintiffs. (Reingold, Paul) (Entered: 04/22/2010)
126 RESPONSE to Plaintiff's Objections to Magistrate Judge Binder's 3/25/10 Report and Recommendation by Craig Hutchinson, Bency Mathai. (Pignotti, Anthony) (Entered: 04/26/2010)
127 REPLY to 117 Objection to Report and Recommendation, 126 Response (Free) by Dallas Cobbs. (Reingold, Paul) (Entered: 04/30/2010)
128 REPLY to 119 Objection to Report and Recommendation, by Correctional Medical Services, Craig Hutchinson, Bency Mathai. (Pignotti, Anthony) (Entered: 05/03/2010)
129 PLAINTIFF'S AND MDOC DEFENDANTS' STIPULATED ORDER. Signed by District Judge Anna Diggs Taylor. (JCur) (Entered: 05/27/2010)
130 NOTICE TO APPEAR: Objection to RRHearing set for 7/12/2010 10:00 AM before District Judge Anna Diggs Taylor (JCur) (Entered: 06/10/2010)
131 SUPPLEMENTAL BRIEF re 127 Reply (Free) filed by Dallas Cobbs. (Attachments: # 1 Exhibit Exh A (Flanory v Bonn etc).) (Reingold, Paul) (Entered: 06/17/2010)
132 REPLY to 131 Supplemental Brief Regarding New Sixth Circuit Case by Correctional Medical Services, Craig Hutchinson, Bency Mathai. (Pignotti, Anthony) (Entered: 06/28/2010)
Minute Entry − OBJECTION to Report and Recommendation Hearing held on 7/12/2010 before District Judge Anna Diggs Taylor Re: 94 REPORT AND RECOMMENDATION re 86 MOTION to Dismiss Pursuant to 42 USC 1997e(a) and FRCP 12(b)(6); 77 REPORT AND RECOMMENDATION re 66 MOTION for Summary Judgment filed by Haresh Pandya, George J Pramstaller, Gregory Naylor, Bonita Davis Neighbors, Marcella Clark; 115 REPORT AND RECOMMENDATION re 108 MOTION to Amend/Correct 38 Amended Complaint to Add Custom and Policy Claim filed by Dallas Cobbs, 103 MOTION for Summary Judgment Pursuant to Fed. R. Civ. P. 56 filed by Craig Hutchinson. Disposition: Magistrate Judge Report and Recommendation IS AFFIRMED in every respect except Plaintiff's motion to amend IS DENIED. Hutchinson and Mathai are dismissed for no individual liability. (Court Reporter Karen Klerekoper) (Carter, M) (Entered: 07/13/2010)
133 ORDER ADOPTING IN PART AND REJECTING IN PART Magistrate Judge Charles Binder's 115 Report And Recommendation: GRANTING 103 Motion for Summary Judgment filed by defendants Craig Hutchinson, Bency Mathai and

Case: 1:07-cv-14644 As of: 05/23/2013 01:25 PM EDT 14 of 15

07/29/2010
07/30/2010 08/09/2010
08/12/2010 08/20/2010 08/20/2010 08/25/2010 09/13/2010 10/22/2010 12/16/2010 04/10/2012
05/02/2012 05/25/2012 05/25/2012 05/30/2012 06/08/2012

DENYING 103 Motion for Summary Judgment filed by defendant Correctional Medical Services, Inc.; DENYING 104 Motion for Summary Judgment, filed by Bonita Davis Neighbors, Haresh Pandya, George J Pramstaller, Gregory Naylor, Marcella Clark; DENYING 108 Motion to Amend/Correct Complaint filed by Dallas Cobbs; Craig Hutchinson and Bency Mathai terminated. Signed by District Judge Anna Diggs Taylor. (JCur) (Entered: 07/22/2010)
134 TRANSCRIPT of Motion Hearing held on 7/12/10. (Court Reporter/Transcriber: Karen Klerekoper) (Number of Pages: 32) Redaction Request due 8/19/2010. Redacted Transcript Deadline set for 8/30/2010. Release of Transcript Restriction set for 10/27/2010. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Klerekoper, K.) (Entered: 07/29/2010)
135 ORDER granting in part and denying in part 110 Motion to Compel. Signed by Magistrate Judge Charles E Binder. (JBro) (Entered: 07/30/2010)
136 MOTION for Reconsideration re 133 Order Adopting Report and Recommendation, Add and Terminate Parties,,,, by Correctional Medical Services. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A) (Pignotti, Anthony) (Entered: 08/09/2010)
137 STIPULATED PROTECTIVE ORDER. Signed by Magistrate Judge Charles E Binder. (CGre) (Entered: 08/12/2010)
138 NOTICE OF APPEAL by George J Pramstaller re 133 Order Adopting Report and Recommendation, Add and Terminate Parties,,,,. Fee Status: No Fee Paid. (Dean, Michael) (Entered: 08/20/2010)
139 Certificate of Service re 138 Notice of Appeal. (LHac) (Entered: 08/20/2010)
Appeal Fee received for 138 Notice of Appeal filed by George J Pramstaller in the amount of $ 455.00 − Receipt No. DET022749 [NO IMAGE UPLOADED]. (KByr) (Entered: 08/25/2010)
140 ORDER STAYING CASE. Signed by Magistrate Judge Charles E Binder. (JBro) (Entered: 09/13/2010)
141 ORDER Denying 136 Defendant Correctional Medical Services, Inc.'s Motion for Reconsideration re 133 Order Adopting Report and Recommendation. Signed by District Judge Anna Diggs Taylor. (JCur) (Entered: 10/22/2010)
142 NOTICE of reassignment from District Judge Anna Diggs Taylor to District Judge Thomas L Ludington pursuant to Administrative Order 10−AO−036. (SSch) (Entered: 12/16/2010)
143 OPINION from U.S. Court of Appeals − Sixth Circuit re 138 Notice of Appeal filed by George J Pramstaller − Disposition: we REVERSE the district court's denial of Pramstallers motion for summary judgment based on qualified immunity. [Appeal Case Number 10−2089] (KKra) (Entered: 04/12/2012)
144 MANDATE from U.S. Court of Appeals − Sixth Circuit as to 138 Notice of Appeal filed by George J Pramstaller [Appeal Case Number 10−2089] (KKra) (Entered: 05/07/2012)
145 NOTICE of Telelphone Conference. (JBro) (Entered: 05/25/2012)
Set Deadline: telephone conference set for 6/8/2012 at 2:00 PM by telephone with Magistrate Judge Charles E. Binder. (JBro) (Entered: 05/25/2012)
146 ORDER Granting Summary Judgment in Favor of Defendant George J Pramstaller. George J Pramstaller terminated. Signed by District Judge Thomas L. Ludington. (SGam) (Entered: 05/30/2012)
Minute Entry − telephone conference held on 6/8/2012 with Magistrate Judge Charles E. Binder. (JBro) (Entered: 06/11/2012)

Case: 1:07-cv-14644 As of: 05/23/2013 01:25 PM EDT 15 of 15

06/11/2012 06/26/2012
06/28/2012 06/29/2012 07/02/2012 09/19/2012 09/21/2012

147 NOTICE TO APPEAR: settlement conference set for 6/29/2012 at 9:30 AM before Magistrate Judge Charles E. Binder. (JBro) (Entered: 06/11/2012)
148 BILL OF COSTS with Itemization of Costs by George J Pramstaller (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C) (Schneider, Clifton) (Entered: 06/26/2012)
149 COSTS TAXED in the amount of $1,514.08 against plaintiff. (DPer) (Entered: 06/28/2012)
Minute Entry − settlement conference held on 6/29/2012 before Magistrate Judge Charles E. Binder. Disposition: Settlement reached. (JBro) (Entered: 06/29/2012)
150 OBJECTION to 148 Bill of Costs, 149 Costs Taxed by Dallas Cobbs. (Reingold, Paul) (Entered: 07/02/2012)
151 STIPULATION of Dismissal with prejudice Plaintiff's Claims Against All MDOC and CMS Defendants by Dallas Cobbs (Reingold, Paul) (Entered: 09/19/2012)
152 ORDER DISMISSING CASE with prejudice. Signed by District Judge Thomas L. Ludington. (SGam) (Entered: 09/21/2012)

 
 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Case No. 10-2089 __________________________________________

DALLAS COBBS,

Plaintiff-Appellee, v.

GEORGE PRAMSTALLER, Chief Medical Officer, Michigan Department of Corrections,

Defendant-Appellant, and

CRAIG HUTCHINSON, Doctor, et al.,

Defendants. ___________________________________________

Appeal from the United States District Court Eastern District of Michigan Honorable Anna Diggs Taylor

BRIEF FOR PLAINTIFF-APPELLEE

Paul D. Reingold Michigan Clinical Law Program 363 Legal Research Building 801 Monroe Street Ann Arbor, MI 48109-1215 (734) 763-4319 pdr@umich.edu

Dated: November 8, 2010

Gabriel Ellenberger Student Attorney on the Brief

CORPORATE DISCLOSURE STATEMENT Pursuant to 6th Cir. R. 26.1, Mr. Cobbs states that he is not a subsidiary or affiliate of a publicly owned corporation. There is no publicly owned corporation, not a party to the appeal, that has a financial interest in the outcome.
ii

TABLE OF CONTENTS Table of Authorities……………………………………………………………… iv Statement in Support of Oral Argument…………………………..................….. vii Statement of Issue Presented for Review………………………………………… 1 Statement of the Case……………………………………………………………. 2 STATEMENT OF FACTS
1. Background Information and the Off-Site Review Process………………. 5 2. The Facts of Mr. Cobbs‟ Case………………………..…………………... 7 Summary of the Argument……………………………………………………... 26 ARGUMENT I. Standard of Review……………………………………………………... 28 II. Pramstaller‟s Deliberate Indifference to Serious Medical
Needs Violated Mr. Cobbs‟ Eighth Amendment Rights…………………. 28 A. Mr. Cobbs Suffered from an Objectively Serious Medical Need…... 29 B. Pramstaller Had a Sufficiently Culpable State of Mind……………... 35 C. Pramstaller Violated a Clearly Established Right…………………… 38 Conclusion……………………………………………………………………….. 45 Proof of Service…………………………………………………………………. 46 Addendum: Designation of Record on Appeal……………………………….. 47 Certificate of Compliance………………………………..…………………….. 49
iii

Cases

TABLE OF AUTHORITIES

page

Anderson v. Creighton, 483 U.S. 635 (2000)...................................................................................... 26, 38

Berryman v. Rieger, 150 F.3d 561 (6th Cir. 1998)............................................................................... 28

Blackmore v. Kalamazoo County, 390 F.3d 890 (6th Cir. 2004)............................................................. 28, 29, 31, 41

Depuis v. Caskey, 2009 WL 3156527 (S.D. Miss. 2009)................................................................. 42

Edwards v. Bradford, 1997 U.S. Dist. LEXIS 15089 (D.S. Ala. 1997)........................................... 39, 40

Elkins v. Summit County, 615 F.3d 671 (6th Cir. 2010)............................................................................... 28

Espinosa v. Saladin, 2009 WL 3102483 (W.D. Mich. 2009)............................................................... 39

Estelle v. Gamble, 429 U.S. 97 (1976)........................................................................................ 28, 38

Farmer v. Brennan, 511 U.S. 825 (1994)...................................................................................... 28, 35

Flanory v. Bonn, 604 F.3d 249 (6th Cir. 2010)......................................................................... 29, 31

Hicks v. Frey, 992 F.2d 1450 (6th Cir. 1993)............................................................................. 35

iv

Hurt v. Mahon, 2009 WL 2877001 (E.D. Va. 2009).................................................................... 40
Leyser v. D’Amico, 182 F. App‟x 697 (9th Cir. 2006)........................................................................ 41
Moldowan v. City of Warren, 578 F.3d 351 (6th Cir. 2009)............................................................................... 28
Napier v. Madison County, 238 F.3d 739 (6th Cir. 2001)......................................................................... 32, 36
Perez v. Oakland County, 466 F.3d 416 (6th Cir. 2006)............................................................................... 29
Rylee v. Bureau of Prisons, 2009 WL 633000 (D.S.C. 2009), appeal dismissed as moot, 343 F. App‟x 865 (4th Cir. 2009)........................................................................ 42
Samonte v. Bauman, 264 Fed. Appx. 634 (9th Cir. 2008) (unpublished)............................................. 43
Sanchez v. Vild, 891 F.2d 240 (9th Cir. 1989)............................................................................... 41
Stevenson v. Pramstaller, 2009 WL 804748 (E.D. Mich. 2009)............................................................ 43, 44
Titlow v. Corr. Med. Services, 2008 WL 2697306 (E.D. Mich. 2008).................................................... 26, 37, 43
Westlake v. Lucas, 537 F.2d 857 (6th Cir. 1976)......................................................................... 36, 37
Williams v. Shelton, 2008 WL 2789031 (D. Or. 2008).................................................................. 40, 41
v

Statutes 42 U.S.C. § 1983....................................................................................................... 2 Other Authorities 6th Cir. R. 26.1.......................................................................................................... ii 6th Cir. R. 34(a)...................................................................................................... vii 6th Cir. R. 34(h)(4).................................................................................................. vii Eye Surgery Education Council, http://www.eyesurgeryeducation.com/Phacoemulsification.html........................... 20
vi

STATEMENT IN SUPPORT OF ORAL ARGUMENT Dallas Cobbs requests oral argument under 6th Cir. R. 34(a). The case has a long and complicated factual record, and the Court may benefit from the chance to question both sides. Mr. Cobbs further requests that oral argument be conducted in person. The court rules do not suggest that representation by a clinical law program makes live oral argument less appropriate. See 6th Cir. R. 34(h)(4). Finally, many prisoners‟ rights cases are decided based on pro se briefs from the prisoner. Where the prisoner has counsel, and the case raises an issue of public concern that could affect other prisoners, oral argument should be granted.
vii

STATEMENT OF ISSUE PRESENTED FOR REVIEW Is defendant Pramstaller entitled to qualified immunity where (1) he denied evaluation and treatment of a prisoner‟s serious medical need for almost four years, (2) every doctor who examined the prisoner requested eye surgery, (3) the prisoner went blind in one eye and suffered from headaches, dizziness, double vision, and other serious side effects before the surgery was finally approved, and (4) the state corrections department‟s own standards said the surgery should be performed?
1

STATEMENT OF THE CASE Plaintiff Dallas Cobbs filed this § 1983 lawsuit in pro per in October 2007, after being denied cataract surgery for almost four years. He named several defendants, including Michigan Department of Corrections (MDOC) chief medical officer Dr. George Pramstaller, as well as various agency and John Doe defendants. Mr. Cobbs sought damages and injunctive relief for the defendants‟ collective failure to approve his cataract surgery from 2004 to 2007.1 Defendant Pramstaller filed a motion to dismiss in January 2008. He argued that he had nothing to do with the decision to deny the surgery, and that therefore he could not be held liable. (R.12, Defendant‟s Motion for Summary Judgment, and Affidavit in Support, at 1-2.) Mr. Cobbs asked the district court to stay the motion pending limited discovery as to Pramstaller‟s role. Mr. Cobbs also wanted to identify the John Doe members of the Medical Services Advisory Committee (MSAC), which made the final decision to deny the surgery, and which Pramstaller chaired. (R.17, Motion for Stay.) Mr. Cobbs attached documents to his motion showing that the MSAC (and Pramstaller personally) had reviewed his doctors‟ requests for the cataract surgery, and had denied them. Id.
1 From the spring of 2004, every optometrist, doctor, and ophthalmologist who actually examined Mr. Cobbs said that he needed surgery to remove the dense cataract on his left eye, and each sought MDOC approval for it. Their requests were denied at least 16 times between 2004 and 2008. (R. 106, Medical Records, Exh. C.)
2

In February 2008 the undersigned counsel interviewed Mr. Cobbs. Shortly thereafter, Mr. Cobbs was informed that his cataract surgery had been approved.2 In April 2008, following a status conference, the magistrate judge issued a series of orders. Pramstaller‟s pending motion to dismiss and Mr. Cobbs‟ pending pro se motions were withdrawn. (R.29 and R.34, Orders.) In June 2008, the magistrate judge granted Mr. Cobbs leave to file an amended complaint and to conduct limited discovery. (R.37, Order.)
In June 2008, Mr. Cobbs (now by counsel) filed his amended complaint. He dropped state agency defendants with Eleventh Amendment immunity and added the individual MSAC members. (R.38, Amended Complaint, and R.34, Request for Identification of John Does.) He also added the MDOC‟s contract medical provider, Correctional Medical Services, Inc. (CMS), as well as two physicians who had served as CMS‟s Michigan medical directors.3
After limited discovery, in September 2008 the MDOC defendants filed a motion for summary judgment, arguing that Mr. Cobbs had failed to make out a constitutional claim, and that the state defendants were shielded from liability by
2 The defense maintains that there was no connection between the two events, but never submitted any affidavit from any defendant on the issue. 3 At all relevant times, CMS, Inc., contracted with the MDOC to provide medical care to Michigan prisoners, including primary care within the prisons as well as all off-site specialty care.
3

the doctrine of qualified immunity. (R.66, MDOC Defs‟ Motion for Summary Judgment.) In December 2008, the magistrate judge entered a report and recommendation denying the defense motion as to qualified immunity. (R.77, Report & Recommendation.)4 After objections, in February 2009 the district court adopted the R&R, finding that Mr. Cobbs‟ condition was “obvious enough that a layperson would recognize the need [for the surgery].” Id. (R.82, Order Adopting R&R.) Full discovery then commenced.
In the meantime, Mr. Cobbs voluntarily dismissed his claims against four individual defendants (two psychiatrists and two dentists) once it was established that they did not participate in the MSAC‟s denials of the requests for eye surgery. (R.90 and R.105, Stipulations and Orders to Dismiss.)
In November 2009 the parties completed discovery. In December 2009, defendant Pramstaller once again moved for summary judgment based on qualified immunity. (R.104, Defendant‟s Motion.) Again the magistrate judge recommended denial of the motion. (R.115, Report & Recommendation.) And again, following objections, the district court adopted the report and recommendation on that issue. (R.133 Order Adopting (in part) R&R.) Defendant Pramstaller then
4 The magistrate judge dismissed the claims for injunctive relief as moot, because Mr. Cobbs had finally been approved for cataract surgery in March 2008, and the surgery had been successfully performed in April 2008.
4

filed this interlocutory appeal of right, limited to the issue of qualified immunity. (R.138, Notice of Appeal.)
STATEMENT OF FACTS 1. Background Information and the Off-Site Review Process At all relevant times Dallas Cobbs was in the custody of the MDOC at the Ryan Correctional Facility in Detroit. (R.106, Cobbs Declaration (12/09), Exh. A, at 1; R.38, First Amended Complaint, at ¶ 6.) In early 2004, Mr. Cobbs had significant vision problems due to cataracts in both eyes. (R.106, Medical Records, Exh. C, at 3.) It is undisputed that the only treatment for cataracts is surgical removal. Such treatment is virtually automatic in the U.S. with the patient‟s consent, absent a medical reason that would prevent it. (R.106, Decl. of MDOC Contract Ophthalmologist (Ghulam Dastgir), Exh. M, at 1; Decl. of Pl‟s Expert Ophthalmologist (Alan Sugar), Exh. N, at 2-3.) It is also undisputed that at all times Mr. Cobbs wanted the surgery, and that there was no medical reason that would counsel against it, let alone preclude it. Because prison doctors cannot perform cataract surgery themselves, they must instead submit a request for off-site “specialty care.” (R.106, Pramstaller Dep., Exh. H, at 18-22; Hutchinson Dep., Exh. I, at 14-16; OP 03.04.100 (Review Process for Off-Site Health), Exh. B, at 14-16; Jones Dep, Exh. J, at 19-22.)
5

The process for off-site specialty care is straightforward. The treating physician submits a form to a utilization review (“UR”) department, requesting the off-site specialty care. Id. UR nurses can approve some specific treatments but can never deny treatment. (R.106, Jones Dep., Exh. J, at 31-32, 40, 71.) Denials are made only by physician-supervisors in the UR department, or by the CMS medical director. Id. at 27.
The UR department can approve the request, deny the request, or “pend” it for more information. Id. (R.106, OP 03.04.100, Exh. B, at 14-15.) If the request is approved, the off-site referral will be scheduled and the patient will be called out and transported to the provider on the appointed day. The request and response forms become part of the prisoner‟s medical record. (R.106, Piper Dep., Exh. G, at 14-15.)
If the request is “pended,” the prison doctor will submit whatever additional information the UR department asks for, at which point the UR office will make a decision. (R.106, OP 03.04.100, Exh. B, at 14-16.) If the request is denied – either originally or after having been “pended” – the requesting doctor can appeal. The first appeal goes back to the UR unit. Id. If the UR supervisor denies the request again, the doctor can file a second appeal to the MDOC regional medical officer. That officer makes sure that the file is complete, and then forwards the
6

case to the chief medical officer (Pramstaller), who brings it to the Medical Services Advisory Committee (MSAC) for decision at its next monthly meeting. Id.
2. The Facts of Mr. Cobbs’ Case The defense statement of facts, while chronologically accurate, presents as given some facts that are contested, and leaves out details of Mr. Cobbs‟ condition on which the case hinges. Because on a qualified immunity appeal this Court must take the facts in the light most favorable to Mr. Cobbs, the plaintiff will re-state his medical history from 2004 to 2008. (The devil is in the details.) In March 2004, Mr. Cobbs saw an on-site contract optometrist to address his worsening vision caused by cataracts on both eyes. The optometrist recommended that Mr. Cobbs see an ophthalmologist. The UR unit denied this request because Mr. Cobbs‟ vision in his left eye (the eye with the less-advanced cataract) was 20/40. (R.106, Medical Records, Exh. C, at 5.) Mr. Cobbs‟ primary care physician, Dr. Paul Piper, appealed the UR denial. Id. The UR unit again denied his request, for the same reason: “Not authorized ophthalmology consult for cataracts. Criteria for cataract removal not met since vision [left eye] = 20/40.” Id. (R.106, Care Enhance Records, Exh. L, at 1.)5
5 From this and similar denials, the Court (and a reasonable jury) could conclude that the MDOC would never approve a cataract surgery if the best corrected vision (with glasses) in the healthier eye was better than 20/50. The CMS medical direc-
7

Dr. Piper appealed again, noting that Mr. Cobbs was legally blind in his right eye and had 20/40 vision in his left eye. “I think cataract surgery is indicated if it will correct vision.” (R.106, Medical Records, Exh. C, at 6.) The appeal went to the MDOC regional medical director for forwarding to the MSAC.
In June 2004, the MSAC approved the ophthalmology consultation and the cataract surgery for the more advanced right-eye cataract.6 (R.106, Exh. C, Medical Records, at 8.) The MSAC‟s decision is hard to explain, because at this point the vision in Mr. Cobbs‟ left eye was still 20/40. That is, nothing had changed medically from the earlier decisions denying the consultation and surgery on the ground that the corrected vision in Mr. Cobbs‟ healthier left eye was 20/40.
In fact, the MSAC approved the first (right-eye) cataract surgery not because of any change in Mr. Cobbs‟ medical condition, but because of his “lifer status.” (R.106, Medical Records, Exh. C, at 8 (“MSAC decision based on lifer status”).) As a lifer, Mr. Cobbs was not going to be released any time soon, so he would be unable to pay for the surgery himself (upon his release) in the foreseeable future.
tor testified that cataract surgery would not be approved until the healthier eye was 20/50 or worse. (R.106, Hutchinson Dep., Exh. I, at 27.) 6 For this request it appears that the MSAC and/or UR unit mistakenly approved tests and treatment for Mr. Cobbs‟ left eye when they meant to approve tests and treatment for his right eye, which may have caused the ophthalmologist to believe that preliminary approval for both eyes had been granted.
8

In July 2004, Mr. Cobbs had a consultation with ophthalmologist Dr. Ghulam Dastgir. (R.106, Exh. C, at 11-14.) At that time the examination showed a “hypermature nuclear and posterior sub-capsular cataract in the right eye” and “a dense posterior sub-capsular cataract” in the left eye. Mr. Cobbs‟ best corrected vision in his right eye had regressed to “hand motion to finger counting” at six inches, while the left eye was “down to 20/70…with glasses, but with glare it dropped down to 20/400.” (R.106, Exh. C, at 13; Piper Dep., Exh. G, at 55, 60-61 (emphasis added).)7
The ophthalmologist noted that Mr. Cobbs was unable to see out of his right eye and also had “double vision with [left eye] – 6 months – it is getting worse.” “[Patient] going blind.” (R.106, Medical Records, 7/27/09, Exh. C at 12, 13; Piper Dep., Exh. G, at 57-58 (emphasis added).) Dr. Dastgir recommended cataract surgery and lens implants in both eyes, the right eye first and the left to follow “a few weeks later.” He then scheduled Mr. Cobbs for scans of both eyes in preparation for the surgery. (R.106, Exh. G, Piper Dep., at 59-60; Medical Records, Exh. C, at 13-14.)
7 By this appointment in July 2004, Mr. Cobbs‟ corrected vision in his “healthier” left eye was well below 20/40, so he met the ostensible standard – at least as articulated by Dr. Hutchinson – for the right-eye surgery. See note 5, supra.
9

Dr. Piper sent a follow-up authorization request for Dr. Dastgir‟s “plan of management” to the UR unit, which approved the cataract removal surgery and lens implant.8 (R.106, Medical Records, Exh. C, at 10, 15.) In August 2004, Dr. Dastgir performed scans on Mr. Cobbs‟ left and right eyes, and had him sign a “consent for cataract extraction with lens implant[s] in both eyes.” Id. at 15, 18. Dr. Dastgir noted that Mr. Cobbs would have both operations “in the very near future.” Id.
On August 30, 2004, Dr. Dastgir removed the cataract on Mr. Cobbs‟ right eye. (R.106, Exh. C, at 20.) Dr. Dastgir saw Mr. Cobbs the following day and told him that the left-eye surgery would be scheduled shortly and that Mr. Cobbs would return for removal of his left-eye cataract according to the original treatment plan. (Id. at 19, 22, 24.) That same day, Dr. Piper similarly noted on Mr. Cobbs‟ medical chart that he was to have cataract surgery on his left eye. (Id. at 25; R.106, Piper Dep., Exh. G, at 65-66.)
In early September, Mr. Cobbs was told that the surgery on his left eye had to be re-scheduled because it had been inadvertently set for the Labor Day holiday. (R.106, Grievances, Exh. D, at 1.) When six weeks passed without Mr. Cobbs hearing anything about the surgery, he sent an inquiry to health services. (R.106,
8 See note 6, supra. The UR approvals were mistakenly issued for the wrong eye. 10

Health Care Requests (Kites), Exh. E, at 1.) On September 15, 2004, Mr. Cobbs saw the optometrist Dr. McGrath to get new glasses following his right-eye surgery. Dr. McGrath wrote in his progress notes, “Patient needs surgery for cataract [left eye] – F/U [follow-up] for cataract surgery.” (R.106, Medical Records, Exh. C, at 26 (emphasis added).) On October 7, 2004, Dr. Piper examined Mr. Cobbs and sent an off-site ophthalmology request, citing Dr. Dastgir‟s treatment plan that Mr. Cobbs was to have the second cataract operation. (R.106, Medical Records, Exh. C, at 27.)
At that point (October 2004), based on records that had already been submitted, the UR unit knew that the vision in Mr. Cobbs‟ left eye had deteriorated as of July to at least 20/70 without glare, to 20/400 with glare, that he had had double vision in his left eye as of July for six months that was getting worse, and that he had a dense posterior sub-capsular cataract. (R.106, Med. Records, Ophthalmology Notes of July 2004, Exh. C, at 12-13.)
The UR unit first “pended” the request and then forwarded it to the MSAC. Dr. Pramstaller testified that the MSAC would approve second cataract surgeries if the patient suffered from sub-capsular glare or if the patient had a great discrepancy in vision. (R.106, Pramstaller Dep., Exh. H, at 54-58.) CMS‟s medical director testified that the UR unit nurses could approve second-cataract surgery if the patient had a posterior sub-capsular cataract that caused glare, a great disparity in vision, or
11

double vision in the affected eye. (R.106, Hutchinson Dep., Exh. I, at 26-32; Exh. O, Pass-Through Sheet.) In other words, approval of cataract surgery for Mr. Cobbs‟ precise condition and symptoms should have been routine.
Despite Dr. McGrath‟s request for surgery, Dr. Piper‟s request for surgery, Dr. Dastgir‟s treatment plan for surgery, and the undisputed fact that Mr. Cobbs had a dense posterior sub-capsular cataract and suffered from (a) sub-capsular glare, (b) a huge disparity in vision, and (c) documented double vision in his left eye for six months as of July 2004, the MSAC and defendant Pramstaller denied the left-eye surgery in October 2004. (R.106, Pramstaller Memo, Medical Records, Exh. C, at 29.) In doing so, they effectively vetoed the UR department‟s “pass-through” sheet, which allowed UR nurses (without a supervisor‟s okay) to approve second cataract surgeries if there was sub-capsular glare or great discrepancy in vision. (R.106 Exh. O, Pass-Through Sheet.)
In deposition, Dr. Pramstaller could not explain why the surgery was denied. Q. And what would be … examples of medical reasons for not doing both
[eyes]? A. If a patient was extremely ill and doing the surgery would be a danger to
their [sic] overall health, that would be a reason for not doing it. Q. Other than reasons that have to do with the patients‟ health, and danger to
the patient‟s health, are there any other reasons you can think of why a second cataract surgery would be denied? A. Not right off hand, no.
12

(R.106, Pramstaller Dep., Exh. H, at 52.) In fact, Pramstaller testified repeatedly
that someone with Mr. Cobbs‟ precise condition/symptoms should have the cataract
removed:
A. …the other thing is…if you have someone who…has 20/20 vision in the first cataract eye, but the second eye is 20/400, and you can‟t see a thing out of that eye, the disparity in the visual cortex makes it difficult, so we would probably do that cataract, also.
A. I said that when the visual disparity between his two eyes was of such magnitude that it could cause him problems in seeing, that we would do the surgery.
A. Well, as I stated previous, if you have a posterior sub-capsular cataract that‟s causing significant glare and affecting the vision on the opposite side, that that would be an indication for doing the cataract, yes.
Id. at 58-60, 71.
In November 2004, Mr. Cobbs sent another health care request (kite) asking
if his surgery had been scheduled. (R.106, Kites, Exh. E, at 1.) To this point no
one had told Mr. Cobbs that his left-eye surgery had been denied, nor had he been
told a reason for the delay. When he learned that the MSAC had denied his sur-
gery, he filed a grievance, citing Dr. Dastgir‟s treatment plan and asking for an ex-
planation or clarification. (R.106, Grievances, Exh. D, at 1.) Mr. Cobbs‟ griev-
ance was denied and he exhausted the two appeals available to him. In his first
appeal he said that he needed the surgery because the vision in his “left eye is get-
ting worse by the day.” Id. at 3.
13

The appeal was denied, citing the MSAC denial of October 26, 2004, and stating that any “further (left) eye concerns should be directed to [Ryan medical staff] to determine if and when another surgery request will be made.” Id. at 4. His second appeal noted that his treating doctors had already said that he needed removal of his left-eye cataract. Id. The final denial acknowledged that the MSAC had previously [mistakenly] approved the left eye surgery, but had rescinded that approval, and that Mr. Cobbs could pay for the surgery himself if he disagreed. Id. at 5.
Mr. Cobbs‟ vision in his left eye continued to fail. He requested new glasses in March 2005. (R.106, Kites, Exh. E, at 2.) He was examined in May 2005 by a different optometrist, Dr. Connolly. (R.106, Medical Records, Exh. C, at 31-32.) The new optometrist noted that Mr. Cobbs had a posterior sub-capsular cataract and nuclear sclerosis in his left eye. Id. (R.106, McGrath Dep., Exh. F, at 38 (interpreting Dr. Connolly‟s handwritten notes).) Dr. Connolly told Mr. Cobbs that he could not get a new prescription until the cataract was removed because glasses would not improve the vision in his left eye. (R.106, Kites, Exh. E, at 3; Medical Records, Exh. C, at 32; McGrath Dep., Exh. F, at 38-39.)
Dr. Connolly, like his predecessors, requested an off-site ophthalmology evaluation (as a prerequisite to surgery). (R.106, Exh. C, at 31.) This request was denied by the UR unit, citing the MSAC denial issued eight months earlier (in
14

October 2004), despite the fact that Mr. Cobbs‟ vision was “getting worse by the day.” Id. at 33. (R.106, Grievances, Exh. D, at 3.)
After submitting two more futile health care kites, Mr. Cobbs filed another grievance in June 2005. Id. at 6. The July response said that the surgery was not approved and that the optometrist he saw in May had recommended that he be reevaluated in 6-12 months. Id. In fact, Dr. Connolly had recommended (and requested) an off-site “cataract eval and possible surgery.” (R.106, Medical Records, Exh. C, at 32.)
Mr. Cobbs‟ vision continued to worsen. In November 2005 – 18 months after the MDOC‟s own contract ophthalmologist had first requested the left-eye cataract surgery – Mr. Cobbs again asked to see a doctor, stating: “The vision in my left eye has gotten so bad that it has thrown off my balance and keeps me dizzy.” (R.106, Kites, Exh. E, at 4.) In December 2005, Mr. Cobbs had another optometry exam. (R.106, Medical Records, Exh. C, at 34.) Dr. McGrath examined Mr. Cobbs and concluded that “cataract surgery [was] needed.” Id. (emphasis added).
Dr. McGrath‟s report shows that Mr. Cobbs‟ best corrected vision in his left eye had deteriorated to 20/600 in just seven months. Id. (R.106, McGrath Dep., Exh. F, at 49-51.) By December 2005 the cataract had become so thick that it was
15

impossible to view the retina in the left eye.9 Id. (R.106, Exh. C, at 34; McGrath Dep., Exh. F, at 50.) Dr. McGrath also reported serious side effects: “patient has trouble w/ depth perception; …patient has…walked into objects on left side.” (R.106, Medical Records, Exh. C, at 34.)
Again, the UR unit denied the doctor‟s request for surgery, based on the previous MSAC denial and the fact that Mr. Cobbs “had a good response to surgery on his [right] eye.” (R.106, Exh. C, at 35; McGrath Dep., Exh. F, at 64.) Dr. McGrath appealed the denial, explaining that he could not screen for glaucoma (because the cataract prevented him from seeing into the eye) and requesting more frequent follow-up visits if the cataract surgery were denied. (R.106, Medical Records, Exh. C, at 35; McGrath Dep., Exh. F, at 65-66.) The more frequent follow-up visits were never scheduled.
In March 2006, Mr. Cobbs had another eye exam. (R.106, Medical Records, Exh. C, at 36.) Dr. McGrath again indicated that Mr. Cobbs needed eye surgery. Id. at 37. Dr. McGrath‟s request said, “Please approve cataract surgery [left eye]. Patient has dense cataract [left eye] with possible [secondary] glaucoma a risk factor; [left eye] no lens helps, 20/600.” Id. The UR unit again denied Dr. McGrath‟s request in March 2006, stating that the “MDOC/MSAC already re-
9 Dr. McGrath‟s report read: “Please evaluate dense cataract [left eye]. … Cataract surgery needed. No view of retina in left eye.” (R.106, Exh. C, at 37.)
16

viewed this case [in October 2004] and have not authorized.” Id. at 38. Dr. McGrath appealed to the MSAC, stating, “surgery advised to prevent secondary glaucoma…no view of left retina possible to check eye health.” Id. (emphasis in original). Dr. McGrath wrote on the appeal form, “patient needs cataract surgery – hypermature cataract surgery is more complicated and there is risk of [secondary] glaucoma.” Id. at 39.
In April 2006, the UR unit sent the case to the MSAC with the note “already not authorized x 2 @ CMS.” Id. On April 25, 2006, the MSAC “upheld non-approval for ophthalmology consult for cataract [left eye].” Id. at 40 (entry signed by Dr. Pramstaller). The MSAC denial memo said only, “upheld non-approval.”10
From the end of 2004 to the spring of 2006, as the cataract in his left eye worsened, Mr. Cobbs suffered from double vision, headaches, eye strain, and glare. He bumped into things and people. He had trouble reading and watching TV or doing anything that required concentration. (R.106, Cobbs Decl., Exh. A, at 8-9.) By the spring or early summer of 2006, Mr. Cobbs‟ vision was bad enough in his left eye that he started wearing an eye patch all the time. Id. In May 2006, Mr.
10 The comments section read: “monitor closely for increase in interocular pressure and resubmit if pressure increases.” Intraocular pressure is used to monitor for glaucoma. (R.106, Pramstaller Dep., Exh. H, at 57.) It had nothing to do with Mr. Cobbs‟ failed vision in his left eye or the resulting side effects.
17

Cobbs sent a health care request stating, “I can no longer see out of the [left] eye.”

(R.106, Kites, Exh. E, at 5.) He sent another kite in June 2006, saying:

I sent a kite to see the doctor on 5/27/06 but I haven‟t been on call. I don‟t want to see the optometrist because I can‟t get any results to my problem seeing him. The lack of sight in my left eye is a protracted problem and something has to be done about it.

Id. at 5. He filed yet another kite in July 2006, saying, “I have sent kite after kite

to health care concerning the vision in my left eye. I need immediate attention be-

cause I can no longer see out of that eye.” Id. at 7.

Dr. Pramstaller was asked about the appropriate treatment for someone with

Mr. Cobbs‟ symptoms:

Q. …but once the cataract has grown to the point that the patient can see

nothing in that eye, do you do the surgery, or do you still wait?

A. No, you probably should do the surgery.

*

*

*

*

*

*

A. [If] you put a patch on, that blocks out that [weaker] eye completely,

so there is no more discrepancy.

Q. Then why would you ever [remove] a second cataract, why wouldn‟t

you say to everyone, Wear a patch?

A. (Objection omitted.) That‟s not a very humane way to treat people.

(R.106, Pramstaller Dep., Exh. H, at 58-60, 74.)

Mr. Cobbs was again seen by Dr. Piper in July 2006. Dr. Piper noted that

Mr. Cobbs “has [history] of losing sight in left eye” and asked the UR unit to take

note of the significant deterioration in Mr. Cobbs‟ vision since 2004. (R.106,

Medical Records, Exh. C, at 42.) Dr. Piper‟s request that Mr. Cobbs be revaluated

18

by an ophthalmologist was again denied based on the MSAC‟s April 2006 decision not to authorize an ophthalmology consult or surgery. Id. at 43.
Later that summer, Mr. Cobbs‟ father tried to intervene by writing directly to Dr. Pramstaller. Although no copy of that letter exists, a copy of the response is in the file. (R.106, Kites and Letters, Exh. E (9/13/06), at 8.) The administrator of the Bureau of Health Care Services wrote:
Your recent correspondence to Dr. Pramstaller regarding your son Dallas Cobbs #164276 has been referred to me for response. You have asked for Dr. Pramstaller‟s intervention to approve and schedule surgery for [your son‟s] cataract… Review of your son‟s medical records indicates that he is being monitored closely. Multiple physicians have reviewed his case and all agree with the current treatment plan. Id. The letter shows that again in the late summer of 2006, Dr. Pramstaller and senior MDOC health officials were fully aware of Mr. Cobbs‟ case. Moreover, what they reported to Mr. Cobbs‟ father was false. In fact, every doctor, optometrist, and ophthalmologist who had examined Mr. Cobbs to date disagreed with the “current treatment plan” – which was to deny even an evaluation by an ophthalmologist, let alone surgery. Pramstaller‟s “treatment plan” was to provide no treatment at all. Mr. Cobbs saw an optometrist again (this time Dr. Cook) in August 2006. Dr. Cook referred Mr. Cobbs for cataract surgery. Dr. Cook crossed out the box
19

labeled “routine” and marked the referral as “urgent.” (R.106, Medical Records, Exh. C, at 44.) Dr. Cook noted that Mr. Cobbs‟ left eye was “opaque” and that he suffered from “extreme photophobia11 – subjective and objectively” and “[wore] patch on left eye to function.” Id. Dr. Cook noted that the “cataract is approaching hypermaturity – condition may preclude use of phacoemulsification.”12 Dr. Cook‟s request for cataract surgery was denied in three words: “See MSAC response,” presumably referring to the MSAC decision of April 2006. Id.
On October 2006, Mr. Cobbs sent another kite to health care: “The loss of sight in my left eye is causing me considerable strain on my right eye and is further causing me blurred vision in my right eye, headaches, dizziness, and a loss of balance.” (R.106, Kites, Exh. E, at 9.)
Mr. Cobbs saw an optometrist again in December 2006. Dr. McGrath filed a request for off-site specialty care, stating, “Please evaluate & order cataract surgery [left eye]. Patient has dense cataract [left eye]. I cannot view retina and patient has developed anemia. Eye health of left eye cannot be evaluated.” (R.106,
11 “Photophobia” is “aversion to light.” (R.106, Hutchinson Dep., Exh. I, at 109.) 12 “Phacoemulsification” is the most common technique used in cataract surgery. The clouded lens is broken up or liquefied using an ultrasonic tool and suction device, which makes the surgery safer. Eye Surgery Education Council: http://www.eyesurgeryeducation.com/Phacoemulsification.html.
20

Medical Records, Exh. C, at 46.) In March 2007, the UR unit denied the request for surgery “based on 20/20 vision in the right eye.” Id. at 49.
As noted, in addition to his examining doctors‟ requests, Mr. Cobbs himself sought help repeatedly by filing numerous kites, grievances, and appeals. (R.38, Amended Complaint, ¶¶ 18-86; R.106, Cobbs Decl., Exh. A, ¶¶ 9-60.) His 2005 requests documented his worsening eyesight. (R.106, Kites, Exh. D, at 2, 3.) He repeatedly conveyed his fear that if he did not have the surgery soon, he would lose all vision in his left eye. (R.106, Grievances, Exh. D, at 7, 8, 10.) In 2005 and 2006, his requests described the side effects he was suffering, including headaches, dizziness, blurry or double vision in his right eye, loss of balance, loss of depth perception, and loss of peripheral vision. (R.106, Kites, Exh. D, at 4, 6.) As a result of these side effects, Mr. Cobbs had difficulty doing daily functions like reading, watching TV, and going up and down stairs. (R.106, Cobbs Decl., Exh. A, at 8-9.) Mr. Cobbs‟ requests increased in urgency as the side effects got worse.
On April 2007, Mr. Cobbs sent another kite to health care, stating: “I‟m experiencing double vision in my right eye. Also, I can hardly focus in my right eye.” (R.106, Kites, Exh. E, at 10.) He had another eye exam in May 2007. (R.106, Med. Records, Exh. C, at 50-51.) Dr. McGrath confirmed what Mr. Cobbs had been saying: the best corrected vision in his right eye had dropped to 20/50. Id. (R.106, McGrath Dep., Exh. F, at 126.) Dr. McGrath also noted that
21

Mr. Cobbs complained of double vision in his right eye for the past two months.
Id., (R.106, Medical Records, Exh. C, at 51.) Dr. McGrath made an “urgent”
referral for an off-site ophthalmology consultation. Id. at 50.13
Despite the urgency of the request, the “dense cataract” in Mr. Cobbs‟ left
eye, the drop in the best corrected vision in his good right eye to 20/50, the double
vision in his right eye, and the possibility of the formation of a secondary cataract in
his right eye, the request for an off-site ophthalmology evaluation was again denied
by the UR unit. (R.106, Medical Records, Exh. C, at 52; Care Enhance Forms,
Exh. L, at 21.)14
13 Dr. McGrath attributed the worsening vision in the right eye to a possible new “secondary cataract” that Dr. McGrath thought might be forming in the right eye. (R. 106, McGrath Dep., Exh. F, at 126.) That turned out not to be the case. To the contrary, the Kresge Eye Clinic in Detroit examined Mr. Cobbs and told him that he did not have a secondary cataract in his right eye. He also never had laser surgery to treat such a cataract. (Compare Def‟s Brief, Statement of Facts, at 20, with R.106, Exh. A, Cobbs Declaration, at 11.)
14 This denial is telling, because if the standard was that cataract surgery would be approved when the vision in the healthier eye fell below 20/40 (R.106, Hutchinson Dep., Exh. I, at 27), then this request for off-site specialty care should have been instantly granted. UR nurse Brenda Jones said that no request for cataract surgery was reviewed without consulting the accompanying optometrist‟s notes. (R.106, Jones Dep., Exh. J, at 40, 71.) The optometrist‟s notes plainly showed that the vision in the good right eye had fallen to 20/50, and that Mr. Cobbs had double vision in his right eye. (R.106, Medical Records, Exh. C, at 50-51.) Yet the UR unit routinely denied the request again in the spring of 2007, just as it had every time before.
22

Meanwhile, Mr. Cobbs‟ situation worsened. He sent another kite to health care in September 2007, saying, “The cataract on my left eye continues to strain my right eye and is still causing me severe headaches, dizziness, and blurred vision in my right eye.” (R.106, Kites, Exh. E, at 11.) He saw a nurse in October 2007, who documented the same complaints. (R.106, Medical Records, Exh. C, at 53.) In late October 2007, he sent another kite to health care, noting that:
I saw [the nurse] on [10/5/07] because I was experiencing severe headaches and dizziness. I was not called out to see Dr. Piper as scheduled and I am still experiencing severe headaches and dizziness. I haven‟t been given anything for pain…. (R.106, Kites, Exh. E, at 12.) On October 30, 2007, Mr. Cobbs filed this lawsuit, in pro per. In October and November 2007, he filed more kites and was examined by nurses at Ryan three times for severe (8 out of 10 on a pain scale) headaches. (R.106, Kites, Exh. E, at 12-13; Medical Records, Exh. C, at 55-58.) Mr. Cobbs was not scheduled for cataract surgery or even an ophthalmology consult, based on the previous denials. With the filing of the lawsuit, Dr. Pramstaller had the opportunity to review the entire file, to see if a mistake had been made. Instead of approving an off-site consultation with a specialist, Dr. Pramstaller filed a motion to dismiss, saying in effect that he had no connection to the case and that he had never been a decisionmaker. (R.12, Motion to Dismiss and Affidavit in Support.)
23

On February 6, 2008, Mr. Cobbs saw the optometrist Dr. McGrath again.
Dr. McGrath filed virtually the same request for an ophthalmology consult and sur-
gery that he had been filing for four years. (R.106, Medical Records, Exh. C, at
59.)15
The UR unit approved the request on February 12, 2008. (R.106, Care En-
hance Records, Exh. L, at 23.) On February 26, 2008 – after waiting almost four
years – Mr. Cobbs finally saw the ophthalmologist (Dr. Datsgir) again. (R.106,
Medical Records, Exh. C, at 62-65.) Dr. Datsgir found that Mr. Cobbs could
barely detect light with his left eye at three inches on account of a “hypermature
chalk white cataract.” Id. at 62. He also noted that Mr. Cobbs had complained of
“headache & double vision [for] 3 years.” Id. at 64. Dr. Dastgir recommended
15 In deposition, on leading questions from his own counsel, Dr. McGrath described Mr. Cobbs‟ double vision in February 2008 as both “monocular” (meaning that he was getting a double image in his right eye) and “binocular” (meaning that he was getting a double image from both eyes). (R.106, McGrath Dep., Exh. F, at 126, 128-29.) The defendant argues that this was somehow something new that at long last justified approval of an ophthalmology consult after four years of denials. This is hogwash. First, Mr. Cobbs had been effectively blind in his left eye since at least early 2006. His complaints thereafter had always been of blurred and double vision in his good right eye (caused by the strain on that eye). (R.106, Cobbs Decl., Exh. A, at 5-7.) In February 2008 he could not have had binocular double vision because he couldn‟t see out of his left eye at all. Second, the paperwork on the ophthalmology consult request of February 7, 2008, did not highlight in any way that the complaint was of a new or different nature. (R.106, Medical Records, Exh. C, at 59-60.)
24

pre-operative procedures and cataract surgery for Mr. Cobbs‟ left eye, just as he had
in the spring of 2004. Id. at 62-64.
On March 10, 2008, Dr. Piper submitted an off-site specialty care request
form pursuant to Dr. Dastgir‟s recommendations. For unknown reasons, this re-
quest was routed directly to the MSAC, bypassing the UR unit and the appeals
process. On March 14, 2008, the MSAC finally approved the left-eye surgery. (R.106, Medical Records, Exh. C, at 67.)16
Mr. Cobbs‟ second cataract surgery was finally performed in April 2008.
As Dr. Dastgir had predicted (R.106, Dastgir Decl., Exh. M, at 2, 4-8), the surgery
and recovery were tougher than the first time around. Mr. Cobbs had painful
pressure in his eye immediately after the surgery, and he had to return for a fol-
low-up procedure to stop the wound from leaking. (R.106, Medical Reports, Exh.
C, at 77-82; Cobbs Decl., Exh A, at 10-11.) Mr. Cobbs fully recovered his sight;
he seeks damages for the denial of care from 2004 to 2008.
16 The paperwork was unusual for the fact that (1) it was approved in four days, (2) no supplemental information was requested, and (3) the request was routed directly to the MSAC, bypassing the appeals process. The paperwork was nearly identical to the April 2007 request (that had been routinely denied despite the 20/50 “best corrected vision” score for the right eye), as well as to the requests that the treating doctors had been filing for the previous four years. Although the defense denies any connection, a reasonable jury could infer that the only thing that had changed was the posture of the litigation – that Dr. Pramstaller‟s motion to dismiss was in jeopardy (because he personally had overseen the denial of care), and/or that Mr. Cobbs had attracted counsel.
25

SUMMARY OF THE ARGUMENT
The defense presents a skewed view of the doctrine of qualified immunity.
The defense asks: Was the law “clearly established” that prison officials must ap-
prove cataract surgery? Finding no case on point that requires the surgery, the
defense argues that it should win as a matter of law.
But courts have never interpreted qualified immunity in this narrow way. If
they did, no plaintiff could win unless the same facts had already been decided in a
previous identical case. See Anderson v. Creighton, 483 U.S. 635, 640 (2000).
Qualified immunity requires a broader inquiry. What must be “clearly es-
tablished” is not whether a class of medical conditions has been the subject of a
prior case, but whether a reasonable defendant would know that withholding treat-
ment from a person with the plaintiff‟s symptoms violates the Eighth Amendment. That inquiry is both legal and factual.17
Moreover, in this case Dr. Pramstaller denied treatment despite conceding
that the MDOC should authorize treatment for someone with Mr. Cobbs‟ exact
17 An example is helpful. Breast reduction surgery is typically viewed as cosmetic or elective surgery that can be routinely denied to prisoners. But if a prisoner suffers from severe breast pain and the only treatment is to remove tissue and tie off nerves, state defendants are not shielded from Eighth Amendment liability just because no court has previously “required” breast reduction surgery. Where the medical need is serious and obvious, and would be routinely provided in other settings, qualified immunity is no defense. See, e.g., Titlow v. Corr. Med. Services, 2008 WL 2697306 (E.D. Mich. July 3, 2008).
26

condition/symptoms. Dr. Pramstaller also admitted that not treating someone with Mr. Cobbs‟ symptoms would be “inhumane,”18 and Dr. Pramstaller was at a loss to explain how Mr. Cobbs could have been denied treatment for almost four years.
Qualified immunity is not available to Pramstaller because he violated Mr. Cobb‟s constitutional rights by denying all treatment for a serious medical need. The law is “clearly established” that a reasonable medical officer would understand that prompt treatment is required for a prisoner who is blind in one eye, who is suffering from pain and discomfort, whose treating doctors all note that the surgery is required, whose eye health cannot be diagnosed because of the severity of the cataract, and whose risk of complications from surgery increases as the cataract grows worse. Taking the facts in the light most favorable to Mr. Cobbs, defendant Pramstaller is not entitled to qualified immunity.
18 For all Michigan prisoners, “Health care…shall be available…consistent with contemporary standards of medical practice in the community, as set forth in PD 03.04.100 „Health Services.‟ Health care shall be available, accessible and organized for delivery in a humane, cost-effective and efficient manner.” (R.106, Policy Directive 03.03.130, Exh. B, at 2, ¶ G (emphasis added).)
27

ARGUMENT I. Standard of Review
This Court reviews de novo the district court‟s denial of summary judgment. Elkins v. Summit County, 615 F.3d 671, 674 (6th Cir. 2010). That the defendant‟s motion for summary judgment was based on claims of qualified immunity does not affect this standard of review. Id. The defendant, however, must “be willing to concede the most favorable view of the facts to the plaintiff for purposes of the appeal,” even if “the defendant disputes the plaintiff‟s version of the story.” Moldowan v. City of Warren, 578 F.3d 351, 370 (6th Cir. 2009) (citing Berryman v. Rieger, 150 F.3d 561, 563 (6th Cir. 1998)). II. Pramstaller’s Deliberate Indifference to Serious Medical Needs
Violated Mr. Cobbs’ Eighth Amendment Rights A state defendant violates the Eighth Amendment if he is deliberately indifferent to a prisoner‟s serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976). Deliberate indifference is made up of two parts, one objective and one subjective. Blackmore v. Kalamazoo County, 390 F.3d 890, 895 (6th Cir. 2004) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)). Both components are met here.
28

A. Mr. Cobbs Suffered from an Objectively Serious Medical Need The objective prong of deliberate indifference is satisfied when the plaintiff suffers from a serious medical need. A medical need is sufficiently serious if “facts show an obvious need for medical care that laymen would readily discern as requiring prompt medical attention by competent care providers.” Blackmore, 390 F.3d at 898. A medical need is both serious and obvious where a condition “has been diagnosed by a physician as mandating treatment.” Perez v. Oakland County, 466 F.3d 416, 423 (6th Cir. 2006); Blackmore, 390 F.3d at 897. In these instances, “it is sufficient to show that [the inmate] actually experienced the need for medical treatment, and that the need was not addressed within a reasonable time frame.” Blackmore, 390 F.3d at 900. In Blackmore, this Court held that the seriousness of the plaintiff‟s medical condition was obvious where the patient vomited, was kept in an observation cell for monitoring, and complained orally and in writing for over two days. Blackmore, 390 F.3d at 899. Based on those facts, this Court recognized that the need for medical care was “so obvious that even a layperson would easily recognize the necessity for a doctor‟s attention.” Blackmore, 390 F.3d at 899 (internal citations omitted). In Flanory v. Bonn, 604 F.3d 249, 254 (6th Cir. 2010), this Court found that depriving an inmate of toothpaste for 337 days satisfied the objective prong.
29

The deprivation was obvious; the periodontal disease that resulted made the deprivation serious.
In this case, Mr. Cobbs‟ left eye deteriorated rapidly, from 20/40 in March 2004 to 20/400 with glare in July 2004. (R.106, Medical Records, Exh. C, at 6, 13; Piper Dep., Exh. G, at 55, 60-61.) He walked into objects, could not read or watch television or do anything that required concentration, had eye strain in his right eye, and had severe headaches. (R.106, Medical Records, Exh. C, at 34; R.106, Cobbs Decl., Exh. A, at 8-9; R.106, Kites, Exh. E, at 9 &11.) He filed a steady stream of medical kites and grievances. (R.106, Kites, Exh. E.) His treating physicians requested surgery at least 16 times, documenting the need for the surgery and the danger of delaying surgery. (R.106, Medical Records, Exh. C, passim.)
As in Blackmore and Flanory, the facts of this case show an obvious need for medical care that any layman could recognize, lasting for nearly four years and causing physical harm throughout that time. Every optometrist, physician, and ophthalmologist who examined Mr. Cobbs said that the cataract needed to be removed, yet all treatment was repeatedly denied. The district court found that “the condition that was known to the Defendants … is obvious enough that a layperson would recognize the need [for the surgery].” (R.77, Report & Recommendation; R.82, Order Adopting Report & Recommendation.) The court below twice denied
30

summary judgment on this ground, both before and after discovery. (R.115, Report & Recommendation; R.13, Order Adopting Report & Recommendation.) Mr. Cobbs‟ cataract constituted a serious medical need under Blackmore, 390 F.3d at 897, and it far exceeded the serious medical need described in Flanory, 604 F.3d at 255-56. Mr. Cobbs has established a serious medical need.
Once the seriousness of a prisoner‟s need for medical care is obvious, there must only be a substantial risk of serious harm – actual harm need not occur. The “violation is not premised on the „detrimental effect‟ of the delay, but rather that the delay alone in providing medical care creates a substantial risk of serious harm” and that the need was not addressed within a reasonable time. Blackmore, 390 F.3d at 899-90. Here the delay caused years of unnecessary suffering, and limited Mr. Cobbs‟ basic functions of daily life. Ultimately the surgery itself (in 2008) was riskier, more painful, and required follow-up care because of complications.
The “obviousness” standard for determining a serious medical need “is distinct from a separate branch of Eighth Amendment decisions where the seriousness of a prisoner‟s medical needs may also be decided by the effect of delay in treatment.” Blackmore, 390 F.3d. at 897 (internal quotations omitted) (emphasis added). In “effect” cases – where the underlying condition is modest but the delay itself causes significant harm – the plaintiff must place “verifying medical evidence in the record to establish the detrimental effect of the delay in medical treatment to
31

succeed.” Napier v. Madison County, 238 F.3d 739, 742 (6th Cir. 2001) (internal quotations omitted). But here the condition itself was both obvious and serious.
Even if Mr. Cobbs were required to show an “effect” of the failure to treat, he has easily done so here. As the district court found, “[f]our years of needless suffering endured by the Plaintiff while repeated requests from doctors and from Plaintiff were superficially denied, the documented deterioration of his vision, his walking into objects, and the eventual donning of an eye patch, are the type of unnecessary infliction of pain contemplated by the Supreme Court in Estelle.” (R.77, Report & Recommendation, at 13-14.)
Moreover, Mr. Cobbs suffered from an objectively serious medical need under the analogous treatment standards of other organizations, as early as 2004. The defendant suggests that Mr. Cobbs‟ second-eye surgery was authorized “at the same or at a less advanced stage” than would have been required under other treatment guidelines. Defendant-Appellant‟s Brief, at 21 n.20. This is untrue. Under the treatment standards cited by the defendant, Mr. Cobbs‟ surgery would have been routinely approved at the outset.
The defense cites the cataract removal policy standards of Aetna. Def‟s Brief at 21 n.20. Under Aetna‟s three-prong test, Mr. Cobbs‟ surgery would have been approved in 2004. Subjectively, Mr. Cobbs complained that his ability to carry out daily activities was impaired in the fall of 2004. (R.106, Cobbs Decl.,
32

Exh. A, at 8; R. 103, Aetna Policy, Exh. K, at 2.) Objectively, his vision was compromised, and there was evidence of glare-related visual loss going back to the summer of 2004. (R. 106, Medical Records, Exh. C, at 12 (best corrected vision in left eye was 20/70 but dropped to 20/400 with glare); Piper Dep., Exh. G, at 60-61; R. 103, Aetna Policy, Exh. K, at 3.) And Mr. Cobbs was “educated” about the risks of cataract removal surgery in the summer of 2004. (R. 106, Medical Records, Exh. C, at 14; R. 103, Aetna Policy, Exh. K, at 4.) Under the Aetna standards, Mr. Cobbs would have received his second cataract surgery in 2004, right after the first surgery. That is the customary treatment throughout the U.S.
The defense also cites the local coverage guidelines of Medicare/Medicaid. Def‟s. Br. at 21 n.20. Under these standards, Mr. Cobbs‟ second cataract surgery was “medically necessary” at the time of his first surgery, for similar reasons: the cataract impaired his ability to carry out daily living functions; he had been evaluated by a specialist who recommended surgery; he was told about the risks; and his visual acuity had dropped significantly. (R. 103, Medicare/ Medicaid Guidelines, Exh. L, at 4.)19 Mr. Cobbs‟ cataract surgery was “medically necessary” under the Medicare/Medicaid standards as early as 2004.
19 To satisfy the Medicare/Medicaid guidelines‟ vision-impairment” criterion, a patient‟s visual acuity must drop by two lines when tested for glare. (R.103, Medicare/Medicaid Guidelines, Exh. L, at 5.) On a standard eye chart, a two-line drop from 20/70 means that the patient‟s vision goes down to 20/200. (R.106, Snellen
33

Finally, the defense cites a Federal Bureau of Prisons‟ “Ophthalmology Guidance” document of February 2008. (R.103, Ophthalmology Guidance, Exh. J, at 8.) Under the federal BOC standards, second-eye cataract surgery is appropriate once there is a “documented, best-corrected visual acuity of 20/100 or less.”20 Id. Mr. Cobbs met even this standard by 2005, when Dr. McGrath found a best corrected visual acuity in the left eye of 20/600. (R.106, Medical Records, Exh. C, at 36.) Moreover, the BOC guidelines require referral to an eye specialist when a patient exhibits “distortion of vision,” “obscured vision,” “loss of vision,” “double vision,” or “new onset of abnormalities or opacities in normal transparent media of the eye.” (R.103, Ophthalmology Guidance, Exh. J, at 8.) Under the federal BOP standards, Mr. Cobbs would have been referred for off-site ophthalmology evaluations starting in 2004. The MDOC/Pramstaller denied even evaluation by an ophthalmologist from the fall of 2004 to 2008.
In any other setting, Mr. Cobbs‟ surgery would have been approved, underscoring the fact that Mr. Cobbs suffered from an objectively serious medical need.
Eye Chart, Exh. P.) In 2004 Mr. Cobbs‟ left-eye vision decreased from 20/70 to 20/400 when glare-tested, a drop of more than two lines. 20 The text of the federal standards is unclear, but it appears to refer to the best corrected vision in the affected eye, not in both eyes taken together. Id.
34

B. Pramstaller Had a Sufficiently Culpable State of Mind The second component of deliberate indifference is subjective: the official must have a “sufficiently culpable state of mind in denying medical care.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). He must be aware of facts from which the inference could be drawn that a substantial risk of harm exists, and he must draw such an inference. Id. at 837. In this case, it was not necessary for Pramstaller to “draw an inference” from the facts of Mr. Cobbs‟ medical history. Pramstaller had direct notice that Mr. Cobbs‟ vision was impaired, that he was suffering from glare, headaches, double vision, and other serious side effects like loss of balance and depth perception, that Mr. Cobbs was at risk for glaucoma, that removal of thick cataracts was a more complicated and dangerous surgery, and that Mr. Cobbs was blind in one eye. All that Dr. Pramstaller had to do was read the file. “At a minimum a plaintiff must show that the official at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending officers.” Hicks v. Frey, 992 F.2d 1450, 1455 (6th Cir. 1993). Dr. Pramstaller‟s behavior far surpassed this standard. He was instrumental in blocking the surgery in 2004, 2005, and 2006, as chair of the MSAC. Moreover, when Mr. Cobbs filed suit in late 2007, Pramstaller had the chance to review the medical file completely and to address the patient‟s serious medical needs. At that time he
35

denied involvement in the denial of care, and filed a motion to dismiss Mr. Cobbs‟ lawsuit.
Pramstaller was deliberately indifferent to Mr. Cobbs‟ serious medical need. Pramstaller and the MSAC discussed Mr. Cobbs‟ left-eye cataract three different times and each time decided to deny the surgery. The denial was not the result of oversight or negligence, but rather was a considered decision to overrule multiple medical requests from the treating/examining staff, contrary to MDOC standards.
The defense correctly points out that an inmate may not establish an Eighth Amendment violation merely because of disagreement about the treatment provided. Napier v. Madison County, 238 F.3d 739, 742 (6th Cir. 2001). The defense argues that “where a prisoner has received some medical attention and the dispute is over the adequacy of the treatment, federal courts are generally reluctant to second guess medical judgments.…” Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976). Mr. Cobbs‟ case, however, does not involve any disagreement about a range of acceptable treatment choices. The only choice was to approve cataract surgery (the one treatment for Mr. Cobbs‟ condition) or to deny it and provide no treatment whatever. Defendant Pramstaller willfully chose the latter.
Pramstaller‟s decision to deny treatment was not based on any medical reason – there was no danger to Mr. Cobbs in going through with the surgery. Pramstaller‟s decision was apparently based on the idea that in prison one eye is
36

good enough, regardless of the prisoner‟s suffering. Pramstaller stuck to this decision even after Mr. Cobbs was blind in one eye, had serious side effects that impaired the activities of daily living, and suffered deteriorating vision in his right eye. The risks of delaying treatment were also known. (R.106, Exh. M, Dastgir Decl., at 2, and id., Letters from Ophthalmologists.) This Court has said that “a prisoner who is needlessly allowed to suffer pain when relief is readily available does have a cause of action against those whose deliberate indifference is the cause of his suffering.” Westlake, 537 F.2d at 860.
Where denial of treatment is based on broad generalities rather than on the specific conditions of the plaintiff, it is “an administrative decision divorced from the specific circumstances of plaintiff‟s condition, rather than a medical treatment decision with which plaintiff simply disagrees.” Titlow v. Corr. Med. Services, 2008 WL 2697306 (E.D. Mich. July 3, 2008). Here, Pramstaller and the MSAC decided that a person does not need cataract surgery if the best corrected vision in the healthier eye is 20/40 or better (actually 20/50 or better – see denial of May 2007, R.106, Medical Records, Exh. C, at 50), no matter how much pain or suffering the person is enduring, and regardless of the effects on the person‟s daily life.
37

C. Pramstaller Violated a Clearly Established Right To determine whether the law is clearly established, the Court cannot simply look at whether cataracts generally have been found to be a serious medical need in other cases. To the contrary, a right can be clearly established even if there is no previous legal case with identical facts. Anderson v. Creighton, 483 U.S. 635, 640 (2000). A court must look at the details of a case to determine whether a reasonable official would deem the denial of medical treatment to be unlawful in light of established precedent. Id. at 641. The law is clearly established that where, as here, a state official is deliberately indifferent to a prisoner‟s serious medical needs, that official is not entitled to qualified immunity. Estelle v. Gamble, 429 U.S. 97, 104 (1976). The defense cites a number of cases for the global proposition that a cataract does not qualify as a serious medical need. But these cases are easily distinguishable. First, none of the cases cited by the defense involved a posterior sub-capsular cataract with glare, which Pramstaller himself admitted constitutes a serious medical need: A. Well, if [prisoners have] a posterior sub-capsular cataract and it causes glare, the glare interferes with the vision from the good eye and makes it difficult for them to visualize what‟s going on around them; therefore, they need that cataract taken out so that the glare disappears. (R.106, Pramstaller Dep., Exh. H, at 48-79.)
38

Second, even the cases cited by the defense distinguish between cases where the cataract caused pain and affected the prisoners’ activities of daily living, and cases where the cataract did not. Third, all but one of the cited cases were litigated by pro se plaintiffs. As a result, little or no record was developed, and the briefs were not prepared by attorneys. The Court should not rely on unpublished pro se cases to set the boundaries of important Eighth Amendment rights.21
The plaintiff will distinguish the cited cases briefly. In Espinosa v. Saladin, 2009 WL 3102483 (W.D. Mich. 2009), the court found that the pro se plaintiff‟s cataract was not a serious medical need. But there the plaintiff complained that he needed the surgery because the delay might cause his good eye‟s vision to deteriorate in the future, not because he was already suffering pain or because the cataract was affecting his daily life. Id. at *5. The record in Espinosa is also very thin: it is unclear how advanced or how fast-growing the cataract was, or how it affected the plaintiff‟s vision or his ability to lead a normal life in prison. Id.
In Edwards v. Bradford, 1997 U.S. Dist. LEXIS 15089, at *3 (D.S. Ala. 1997), the pro se plaintiff had a cataract which caused some blurry vision in one eye. The treating doctor did not recommend surgery, and different sets of glasses
21 Most of these cases were also decided long after the events that took place in this case, and therefore could not have been relied upon by the defendant here. Most of the cases are also from courts outside the Sixth Circuit, and thus apply somewhat different standards under the Eighth Amendment. See accompanying text, infra.
39

were prescribed to help correct the plaintiff‟s vision. Id. at *4. The plaintiff did not have to withdraw from school, and though he complained of “incidents” arising in prison as a result of his cataract, the court noted that the plaintiff had not stated, “either generally or in detail, the nature of [the incidents complained of]” nor “informed the Court how those incidents were related to his visual impairment.” Id. at *4 n.1. In contrast, Mr. Cobbs‟ treaters said that surgery was required or necessary; some of them listed the need as urgent. He lost all vision in one eye and glasses were not prescribed because they were useless. And he submitted kites and grievances detailing how the cataract impaired his daily life.
In Hurt v. Mahon, 2009 WL 2877001 (E.D. Va. 2009), the court found no Eighth Amendment violation where the pro se plaintiff complained that he would soon be released from prison and could not afford the cataract surgery on his own. “[N]owhere in any of his submissions to the Court [did the] plaintiff claim to suffer pain as the result of his condition.” Id. at *2 n.3 & *3. Further, the Fourth Circuit uses the outdated “shocks the conscience” test for the subjective prong of the Eighth Amendment standard. In the Fourth Circuit, the defendants‟ actions must be “[s]o grossly incompetent, inadequate, or excessive … as to be intolerable to fundamental fairness.” Id. at *2.
In Williams v. Shelton, 2008 WL 2789031 (D. Or. 2008), the court found that the pro se plaintiff‟s cataract did not constitute a serious medical need. But in that
40

case, the same as Mr. Cobbs is arguing here, the court noted that “[t]he decision for surgical removal is usually based on the cataract‟s effect on the activities of daily living.” Id. at *3. The court also found that there was no evidence that the delay caused any harm. Id. Here, in contrast, Mr. Cobbs has submitted uncontested evidence showing both serious effects on his activities of daily living and harm caused by the delay in treatment.
In Leyser v. D’Amico, 182 F. App‟x 697 (9th Cir. 2006), the court said that the pro se plaintiff‟s denial of cataract surgery was not an Eighth Amendment violation. But in the Ninth Circuit, “a delay in medical treatment must lead to further injury to support a claim for deliberate indifference.” Id. at 698. Cf. Blackmore, 390 F.3d at 899-900 (prisoner plaintiff need not present evidence to show that his condition worsened or deteriorated because it is the failure to treat itself that is the constitutional violation). Further, the Leyser court gives no details as to the treating physician‟s recommendation or the extent of disagreement with any utilization review department. The panel cited Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989), for the proposition that a doctor‟s disagreement with a utilization review board is not deliberate indifference. In Sanchez, however, the plaintiff was treated for his ailment, and his symptoms cleared up. The plaintiff was unhappy because the efficacious treatment he got was different from the surgery his doctor first rec-
41

ommended, and that the patient wanted. Mr. Cobbs, on the other hand, got no treatment whatever, where the only possible treatment was surgery.
Likewise, in Depuis v. Caskey, 2009 WL 3156527 (S.D. Miss. 2009), the court found that the pro se plaintiff suffered no substantial harm while awaiting surgery so that any difference in medical opinion between the physician and the medical director did not amount to deliberate indifference. Moreover, there was no evidence that the treating physician reported the significant risks for the plaintiff in delayed surgery, or that his daily activities were being affected in any way. Mr. Cobbs, in contrast, suffered ongoing harm for four years, and the tardy surgery was itself riskier, more painful, and required a follow-up procedure to stop fluid from leaking from the surgical site.
In Rylee v. Bureau of Prisons, 2009 WL 633000, at *1 (D.S.C. 2009), appeal dismissed as moot, 343 F. App‟x 865 (4th Cir. 2009), the defendants denied the pro se plaintiff‟s request for cataract surgery because he did not meet the requirements specified by the Federal Bureau of Prisons ophthalmology guidelines. The court determined that the “[d]efendants‟ decision to adhere to federal prison guidelines rather than follow the optometrist‟s recommendation of cataract surgery constitutes a difference of medical opinion” and not deliberate indifference. Id. at *4. As discussed above, however, where treating physicians unanimously request surgery, and where the defendants‟ denial is based entirely on general guidelines unrelated
42

to the patient‟s actual condition, deliberate indifference is established. See, e.g., Titlow, 2008 WL 2697306, at *9.
Furthermore, even if “following guidelines” were a defense to a claim of deliberate indifference, that would not protect Pramstaller in this case. Here, the UR department‟s “pass-through” sheet showed – and Pramstaller agreed – that the prison standard was to approve cataract surgery for people with Mr. Cobbs‟ exact condition/symptoms. (R.106, Pass-Through Sheet, Exh. O; Pramstaller Dep., Exh. H, at 76.) Defendant Pramstaller also failed to approve the surgery after October 2007, when Mr. Cobbs filed suit, even though the medical file showed that the best corrected vision in his healthier eye had fallen below 20/40 as of the previous April. (R.106, Medical Records, Exh. C, at 62.) Pramstaller was not following the prison guidelines when he denied the surgery repeatedly requested by Mr. Cobbs‟ doctors.
Likewise, the court in Samonte v. Bauman, 264 Fed. Appx. 634 (9th Cir. 2008) (unpublished), found that a mere difference of opinion is “insufficient by itself to raise a triable issue of deliberate indifference.” Id. at 636. In that case, however, the treating physician only indicated that surgery was an option, and the record did not indicate that the delay caused the plaintiff any harm, both factors easily distinguishable from the case at bar. Id. at 635-36.
Finally, Pramstaller relies on Stevenson v. Pramstaller, 2009 WL 804748, at *5 (E.D. Mich. 2009), a case in which the Eastern District of Michigan found that
43

the subjective prong of deliberate indifference was not met.22 Once again, however, the plaintiff was pro se and did not fully develop the facts of the case. The plaintiff “failed to present any evidence refuting the Defendants‟ reason for denying the Plaintiff‟s surgery – that there was no documentation that delaying Plaintiff's surgery would adversely affect Plaintiff‟s daily activities or his ability to have the procedure done at a later time.” Id. at *4. Unlike the plaintiff in Stevenson, Mr. Cobbs documented his pain and suffering and the adverse effect the denial of care had on his daily life. His doctors also documented the serious risks associated with delaying the cataract surgery. (R.106, Decl. of MDOC Ophthalmologist Dastgir, Exh. M, at 5-8.)
In sum, the defense cases denying either deliberate indifference or serious medical need are not analogous to the case at bar. In no case has the Sixth Circuit or lower courts addressed the seriousness of a posterior sub-capsular cataract with glare. In most of the cited cases the plaintiffs were pro se, the record was poorly developed, the applicable circuit law was different, or the cases were decided long after the decision to deny treatment was made in this case.
22 The defendants incorrectly state that the court found neither the subjective nor objective prong met in this case. Def‟s. Br. at 33. In fact, the court reviewed only the subjective prong and did not reach the objective requirement of serious medical need. See Stevenson, 2009 WL 804748 at *4-5.
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CONCLUSION For the above reasons, the defendant Dallas Cobbs asks the Court to affirm the district court‟s denial of qualified immunity to defendant Pramstaller, and to remand the case for trial.
Respectfully submitted, /s/ Paul D. Reingold
Michigan Clinical Law Program Attorneys for Plaintiff 363 Legal Research Building 801 Monroe Street Ann Arbor, MI 48109-1215 (734) 763-4319 pdr@umich.edu – P27594
/s/ Gabriel Ellenberger Student Attorney for Plaintiff Dated: November 8, 2010
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PROOF OF SERVICE The plaintiff-appellee‟s brief was filed using the Court‟s ECF system, which will provide same-day e-mail service to all counsel of record.

Dated: November 8, 2010

/s/ Paul D. Reingold Attorney for Plaintiff pdr@umich.edu - P27594

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ADDENDUM: DESIGNATION OF RECORD ON APPEAL Under 6th Cir. R. 28(c), 30(b), Mr. Cobbs designates the following portions of the record on appeal. This is in addition to the docket entries already designated by the defendant-appellant.

Description of Entry Cobbs‟ Motion for Preliminary Injunction Pramstaller‟s Motion to Stay Discovery Pramstaller‟s Motion for Summary Judgment Notice Requesting Response to Motion for Summary Judgment (R.12) Cobbs‟ Motion to Stay Motion for Summary Judgment (R.12) Cobbs‟ Motion to Supplement Motion for Preliminary Injunction (R.10) Pramstaller‟s Motion for Summary Judgment Pramstaller‟s Motion to Withdraw Motion for Summary Judgment (R.12) Pramstaller‟s Notice of Withdrawal of Motion to Withdraw Motion for Summary Judgment (R.26) Cobbs‟ Notice of Withdrawal of Motion for Preliminary Injunction and Motion to Supplement Motion for Preliminary Injunction (R.10, 22) Cobbs‟ Request for Identification of John Does Order Granting Leave to File Amended Complaint Pramstaller et al.‟s Motion for Summary Judgment Response to Pramstaller et al.‟s Motion for Summary Judgment (R.66) Report & Recommendation on Motion for Summary Judgment (R.66)

Date filed Dec. 21, 2007 Jan, 9, 2008 Jan. 15, 2008 Jan. 18, 2008 Feb. 6, 2008 Mar. 7, 2008 Mar. 25, 2008 Mar. 27, 2008 Apr. 11, 2008
Apr. 14, 2008
Apr. 15, 2008 June 4, 2008 Sept. 12, 2008 Oct. 16, 2008 Dec. 5, 2008

Record No. 10 11 12 13 17 22 23 26 29
34
35 37 66 71 77

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MDOC Defendants‟ Objection to R&R (R.77) Dec. 19, 2008

79

Cobbs‟ Response to MDOC Defendants‟

Dec. 23, 2008

80

Objections to R&R (R.77)

Order Adopting Report & Recommendation

Feb. 12, 2009

82

(R.77)

Stipulation and Order Dismissing Defendants

June 24, 2009

90

James Dillon and Roldert Fischer

Stipulation and Order Dismissing Defendant

Dec. 8, 2009

105

Bonita Neighbors

Plaintiff‟s and MDOC Defendants‟ Stipulated

May 27, 2010

129

Order [amending some pleadings]

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CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B). The brief contains fewer than 14,000 words, excluding those portions of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). The brief contains a total of 10,945 words, including footnotes.
/s/ Paul D. Reingold Michigan Clinical Law Program Attorneys for Plaintiff 363 Legal Research Building 801 Monroe Street Ann Arbor, MI 48109-1215 (734) 763-4319 pdr@umich.edu – P27594
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 No. 10-2089
In the UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Dallas Cobbs (State Prisoner no. 164276), Plaintiff-Appellee,
v. George Pramstaller,
Defendant-Appellant, and Craig Hutchinson, Marcella Clark, Gregory Naylor, Bency Mathai, Haresh Pandya, and Correctional Medical Services, Inc.,
Defendants.
Appeal from the United States District Court Eastern District of Michigan at Detroit Honorable Anna Diggs Taylor
REPLY BRIEF FOR DEFENDANT-APPELLANT

Dated: November 29, 2010

Michael A. Cox Attorney General
B. Eric Restuccia Solicitor General Co-Counsel of Record
Clifton Schneider Assistant Attorney General Co-Counsel of Record Attorneys for Defendant-Appellant Pramstaller Corrections Division P.O. Box 30217 Lansing, MI 48909 (517) 335-7021 SchneiderC1@michigan.gov

2

TABLE OF CONTENTS Page
Table of Authorities .................................................................................................. ii Introduction ............................................................................................................... ii Argument....................................................................................................................2 I. Pramstaller is entitled to qualified immunity with respect to the October
26, 2004, non-approval of left-eye surgery. ....................................................2 II. Pramstaller is entitled to qualified immunity with respect to the April 25,
2006, non-approval of left-eye surgery ...........................................................4 Conclusion .................................................................................................................8 Certificate of Compliance ..........................................................................................9 Proof of Service .......................................................................................................10
i

TABLE OF AUTHORITIES Page
Cases Stevenson v. Pramstaller, et al.,
no. 07-cv-14040, 2009 U.S. Dist. LEXIS 25495 at *2 (E.D. Mich. 2009)............9
ii

INTRODUCTION Cobbs argues that he had a serious medical condition that Pramstaller was aware of. He argues that he had "(a) sub-capsular glare, (b) a huge disparity in vision, and (c) documented double vision in his left eye for six months as of July 2004." [Plaintiff's Brief, page 12]. In fact, there is no evidence that he suffered from glare, his definition of "disparity in vision" is separated from the medically relevant definition of that term, and any double vision present in July 2004 was corrected when the right-eye cataract surgery was performed. There was no serious medical need that Pramstaller ever became aware of. Cobbs's arguments also extend beyond the scope of Pramstaller's actual involvement. Cobbs seeks to hold Pramstaller accountable for every action taken by healthcare staff, and he seeks to forcibly impart to Pramstaller knowledge of every complaint that he allegedly made to his treating physicians. By focusing instead on the actions of Pramstaller and looking only at the information actually presented to Pramstaller, it becomes clear that Pramstaller did not violate any clearly established right of which a reasonable person would have known.
1

ARGUMENT I. Pramstaller is entitled to qualified immunity with respect to the October
26, 2004, non-approval of left-eye surgery. In his response, Cobbs relies on anecdotal evidence from his declaration as well as his medical kites, all of which were never seen by Pramstaller. The focus here should be on the facts related to Pramstaller's involvement, and when looking at those facts, Cobbs's arguments are revealed as lacking in substance and unpersuasive. Pramstaller was involved in the non-authorization of left-eye cataract surgery for Cobbs on two occasions: October 26, 2004, and April 25, 2006. Other than at those two meetings of the Medical Services Advisory Committee, Pramstaller had no involvement in the non-authorization of any treatment. Therefore, the focus should be on the circumstances of those two nonauthorizations. The second non-authorization is discussed below in Issue II. Cobbs argues that in October 2004, the "UR unit knew" that his left-eye vision was 20/70 and 20/400 with glare, and that he suffered from double vision. [Appellee's Brief, page 11]. First, as to Pramstaller's motion, it is not relevant what the "UR unit knew." Second, as of October 2004, Cobbs has already had successful surgery on his right eye, so he had good overall vision. In addition, he had no complaints of double vision – the only medical note indicating double vision at this time was from back in July, before the right-eye cataract surgery. [R.
2

106, Exhibit C, page 12]. There is no evidence that he suffered from double vision in October 2004, and there is no evidence that Pramstaller had knowledge of any such complaint. In addition, Pramstaller was never presented with evidence of any real-world glare at this time; the July 24, 2004, medical record indicated only that Cobbs's left-eye vision decreased with artificially-induced glare in the office setting. [R. 103, Exhibit I, page 64, lines 5-15; R. 106, Exhibit C, pages 12-13].
Cobbs also notes that a Utilization-Review nurse could have approved the left-eye surgery if he had glare, a great disparity in vision, or double vision. [Appellee's Brief, pages 11-12]. That neither the Utilization-Review nurse nor the Utilization-Review physician did approve the surgery is evidence that Cobbs did not meet those criteria. Additionally, Cobbs's interpretation of "great discrepancy in vision" has been consistently incorrect throughout this litigation. Double vision is great discrepancy in vision. [R. 106, ex I, page 30, lines 4-25, page 31, lines 116]. Cobbs believes that "discrepancy in vision" merely refers to the difference between the visual acuity of the two eyes. In fact, it refers to discrepancies in the visual cortex, i.e. double vision. [R. 103, Exhibit I, page 60, lines 3-25, page 61, lines 1-8, page 74, lines 4-8].
Prior to the October 26, 2004, Medical Services Advisory Committee meeting, a CHJ-407 form was submitted requesting surgery for Cobbs's left eye. [R. 106, Exhibit C, page 27]. That request form referred to an August 31, 2004,
3

progress note; that note recorded that Cobbs had 20/70 vision in his right eye without correction. [R. 106, Exhibit C, pages 22-23]. Neither the CHJ-407 nor the progress notes indicate any double vision or glare. Based on Cobbs's excellent overall vision and lack of any reported problems, Pramstaller did not authorize surgery on the left-eye at the October 26, 2004, Medical Services Advisory Committee meeting; the non-approval memorandum stated that the request should be resubmitted for reconsideration if new information became available. [R. 106, Exhibit C, page 29]. No clearly established law exists under which Cobbs could be found to have a serious medical condition at this time. And no clearly established law exists under which Pramstaller could be found to have violated any of Cobbs's rights at this time. Pramstaller is entitled to qualified immunity with respect to the October 26, 2004, non-approval. II. Pramstaller is entitled to qualified immunity with respect to the April
25, 2006, non-approval of left-eye surgery Pramstaller's second non-approval came on April 25, 2006. At this time, Cobbs had excellent vision in his right eye; only risk of glaucoma and poor vision were reported with respect to the left eye. And the glaucoma risk was nominal; Pramstaller even ordered that it be monitored. Pramstaller did not violate any clearly established law. Once again, the request for left-eye surgery was initiated by a CHJ-407 form. Cobbs discusses the CHJ-407 that was submitted on March 6, 2006, again
4

requesting left-eye surgery; he quotes most of it, but he omits the portion that is damaging to his claim: he had 20/20 vision in his right eye at this time. [Plaintiff's Brief, page 16; R. 106, Exhibit C, page 36]. With 20/20 vision in his right eye, he had excellent overall vision. [R. 103, Exhibit I, page 73, lines 8-11].
The requesting physician stated that the left-eye surgery was needed to prevent the risk of glaucoma: "surgery advised to prevent secondary glaucoma." [R. 106, Exhibit C, pages 36, 38]. The document was sent to the Medical Services Advisory Committee on April 3, 2006. [R. 106, Exhibit C, page 39]. On April 17, 2006, the physician appears to have updated the request noting that "hypermature cataract surgery is more complicated." [R. 106, Exhibit C, page 39]. The Medical Services Advisory Committee does not appear to have received this updated version, as its response appears in the same box on its copy of the form. [Cf. R. 106, Exhibit C, pages 39, 40].
On April 25, 2006, Pramstaller upheld the CMS non-approval of the left-eye surgery. [R. 106, Exhibit C, page 41]. Pramstaller did not ignore the concerns of the requesting physician. The physician was concerned about glaucoma, and Pramstaller addressed that risk by writing, "monitor closely for increase in interocular pressure and resubmit if pressure increases." [R. 106, Exhibit C, page 41]. Developing glaucoma would be very rare, and monitoring the pressure was an appropriate safeguard. [R. 103, Exhibit I, page 57, lines 11-15]. Even the
5

requesting physician admits that developing glaucoma would be very rare – he's never even seen it happen; he just thinks that the literature indicates that it's a possibility. [R. 106, Exhibit F, page 67, lines 24-25, page 68, lines 1-4].
Pramstaller responded to exactly what information was presented to him. The requesting physician indicated a concern for Glaucoma, so Pramstaller and the Medical Services Advisory Committee considered and addressed that risk. Had different information been presented, such as glare or double vision, then those concerns would have been addressed through surgery or any other appropriate course of treatment. Pramstaller was well aware that there was minimal risk to Cobbs in this case. [R. 103, Exhibit I, page 81, lines 1-6].
Cobbs attempts to create fact questions through his declaration and alleged kites. He knows that he needs to show that he suffered from some risk or injury and that Pramstaller was aware of such and ignored it. But the medical records do not support Cobbs's attempt. If there was important information relevant to the medical condition for which the physicians were requesting treatment, then it was on those physicians to present that information with their requests. Pramstaller relied on the information presented in the surgery-request documents. Based on those records, no clearly established law exists under which Cobbs could be found to have a serious medical condition at this time. And no clearly established law exists under which Pramstaller could be found to have violated any of Cobbs's
6

rights at this time. Pramstaller is entitled to qualified immunity with respect to the April 25, 2006, non-approval.
Finally, Cobbs argues that this Court should not rely on "unpublished pro se cases to set the boundaries of important Eighth Amendment rights." [Plaintiff's Brief, page 39]. This argument misses the point. This case is not about setting boundaries – it is about recognizing existing boundaries and determining whether Pramstaller's conduct violated any existing boundary. It did not. And the cases cited by Pramstaller are dispositive to the qualified-immunity analysis here. Pramstaller himself was a defendant in one of those cases for the exact same conduct as here – chairing the Medical Services Advisory Committee during the non-approval of a cataract surgery.1 Cobbs has failed to come forth with any authority holding Pramstaller's actions to be unconstitutional. He has therefore failed to meet his burden, and Pramstaller is entitled to qualified immunity.
1 Stevenson v. Pramstaller, et al., no. 07-cv-14040, 2009 U.S. Dist. LEXIS 25495 at *2 (E.D. Mich. 2009) (Exhibit D to Appellant's Brief).
7

CONCLUSION Defendant-Appellant Pramstaller respectfully requests that this Court overrule the District Court's Order denying Pramstaller's motion for summary judgment based on qualified immunity
Respectfully submitted, Michael A. Cox Attorney General B. Eric Restuccia Solicitor General Co-Counsel of Record /s/ Clifton B. Schneider Assistant Attorney General Co-Counsel of Record Attorneys for Defendant-Appellant Pramstaller Corrections Division P.O. Box 30217 Lansing, MI 48909 (517) 335-7021 SchneiderC1@michigan.gov Dated: November 29, 2010
Schneider/response brief 2007025427B
8

CERTIFICATE OF COMPLIANCE Certificate of Compliance with Type-Volume Limitation,
Typeface Requirements, and Type Style Requirements 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains no more that 7,000 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). There are a total of 1,585 words. 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief bas been prepared in a proportionally spaced typeface using Word 2003 in 14 point Times New Roman.
/s/ Clifton B. Schneider Assistant Attorney General Co-Counsel of Record Attorneys for Defendant-Appellant Corrections Division P.O. Box 30217 Lansing, MI 48909 (517) 335-7021 SchneiderC1@michigan.gov
9

PROOF OF SERVICE I certify that on November 29, 2010, the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by placing a true and correct copy in the United States mail, postage prepaid, to their address of record (designated below).
/s/ Clifton B. Schneider Assistant Attorney General Co-Counsel of Record Attorneys for Defendant-Appellant Corrections Division P.O. Box 30217 Lansing, MI 48909 (517) 335-7021 SchneiderC1@michigan.gov
10

 
 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Case No. 10-2089
__________________________________________

DALLAS COBBS,

Plaintiff-Appellee, v.
GEORGE PRAMSTALLER, Chief Medical Officer, Michigan Department of Corrections,

Before Judges Batchelder, Cole, and Cook

Defendant-Appellant, and

CRAIG HUTCHINSON, Doctor, et al.,

Defendants. ___________________________________________

PLAINTIFF-APPELLEE’S SUPPLEMENTAL BRIEF

At oral argument, Judge Cole noted that defendant Dr. Pramstaller conceded

in his deposition that a patient should have a cataract removed in certain situations:

…if they have a posterior subcapsular cataract and it causes glare, the glare interferes with the vision from the good eye and makes it difficult for them to visualize what’s going on around them; therefore, they need that cataract taken out so that the glare disappears.

The other thing is, … if you have someone who … has 20/20 vision in the first cataract eye, but the second cataract eye is 20/400, and you can’t see a thing out of that eye, the disparity in the visual cortex makes it difficult, so we would probably do that cataract, also.

R.106, Exh. H, Pramstaller Dep., at 56 and 58; R.106, Exh. O, “Pass-Through

Sheet” (permitting nurses to approve cataract surgeries for these two reasons).
1

Judge Batchelder then asked what specific records defendant Pramstaller had reviewed when he made or endorsed the decision to deny Mr. Cobb’s second (lefteye) cataract surgery. The answer to that question is clear.
The decision to deny surgery, made by Dr. Pramstaller and the Medical Services Advisory Committee on 4/25/06, was based on a form prepared by the optometrist Dr. McGrath on 3/1/06. 1 R.106, Exh. C, at 36. Dr. McGrath wrote in the box for “Supporting History”:
Please approve cataract surgery OS [left eye] Patient has dense cataract [left eye] with possible [secondary] glaucoma a risk factor He wrote in the box for “Supporting Physical Exam” that the right eye was 20/20. But for the left eye he wrote: “no lens helps – 20/600.” Id. (Emphasis added.) He faxed the form to utilization review (CMS) on 3/6/06, which denied the request for an ophthalmology consultation on 3/15/06, noting that “MDOC/MSAC already reviewed this case,2 and has not authorized. Patient had good response to surgery on his Rt. eye.” R. 106, Exh. C. at 39. Dr. McGrath responded on the same form, on 3/29/06: “Surgery advised to prevent secondary glaucoma. No view of lens/ retina possible to check eye health.” Id. CMS responded on 4/3/06: “Case
1 Dr. McGrath testified that he did not know what the criteria were for approving or denying second cataract surgeries. R.106, Exh. F, at 115. 2 The previous MSAC review was in October 2004, approximately 18 months earlier.
2

sent to MSAC – already not authorized.” Id. On 4/3/06, Dr. McGrath added his

final comment: “Patient needs cataract surgery – hypermature cataract surgery is

more complicated and there is risk of OS glaucoma.” Id.

On 4/25/06, Dr. Pramstaller signed the MSAC memo that “upheld non-

approval,” based on these submissions. R.106, Medical Records, Exh. C, at 41.

Accordingly, on 4/25/06, Dr. Pramstaller and the MSAC knew that Mr.

Cobbs had a cataract on his left eye that had reduced his vision in that eye to

20/600 even with glasses (“no lens helps”), that the cataract was hypermature,

and that the optometrist could not see into the lens or the retina. (At the least

there is a fact dispute about what Dr. Pramstaller knew and when he knew it.)

CONCLUSION

For the above reasons, Mr. Cobbs asks the Court to affirm the district court’s

denial of qualified immunity, and to remand the case for trial.

Respectfully submitted,

Dated: December 1, 2011

/s/ Paul D. Reingold Michigan Clinical Law Program Attorneys for Plaintiff-Appellee 363 Legal Research Building 801 Monroe Street Ann Arbor, MI 48109-1215 (734) 763-4319 pdr@umich.edu – P27594

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PROOF OF SERVICE

The plaintiff-appellee’s supplemental brief was filed using the Court’s ECF system, which will provide same-day e-mail service to all counsel of record.

Dated: December 1, 2011

/s/ Paul D. Reingold Attorney for Plaintiff-Appellee

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