UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

MORRIS WEATHERSPOON, 

 Plaintiff, Case No. 14-cv-12789 

 Hon. Matthew F. Leitman 

v. 

GEORGE LNU, et al. 

 Defendants. 

_________________________________/ 

ORDER (1) OVERRULING PLAINTIFF’S OBJECTIONS (ECF #52); (2) 

ADOPTING THE MAGISTRATE JUDGE’S REPORT AND 

RECOMMENDATION (ECF #49) AS THE OPINION OF THE COURT; (3) 

GRANTING THE MDOC DEFENDANTS’ MOTION FOR SUMMARY 

JUDGMENT (ECF #18); AND (4) DENYING PLAINTIFF’S MOTIONS 

FOR SUMMARY JUDGMENT (ECF ##38-41) 

In this action, Plaintiff Morris Weatherspoon (“Weatherspoon”) – an inmate 

in the custody of the Michigan Department of Corrections (“MDOC”) – alleges 

that Defendants Jon Pavitt (“Pavitt”), Gail Wang (“Wang”), Eutrilla Taylor 

(“Taylor”), and Diana Hering (“Hering”) (collectively, the “MDOC Defendants”) 

violated his First and Eighth Amendment Rights. The assigned Magistrate Judge 

has issued a Report and Recommendation (the “R&R”) in which he recommends 

that this Court (1) grant summary judgment in favor of the MDOC Defendants, and 

(2) deny Weatherspoon summary judgment. (See ECF #49.) Weatherspoon 

objects to the R&R (the “Objections”). (See ECF #52.) The Court has now 

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conducted a de novo review of the parts of the R&R to which Weatherspoon 

objects. For the reasons stated below, the Court OVERRULES the Objections, 

ADOPTS the R&R as the Opinion of this Court, GRANTS summary judgment to 

the MDOC Defendants, and DENIES Weatherspoon summary judgment. 

RELEVANT FACTUAL BACKGROUND AND PROCEDURAL HISTORY

 On July 3, 2014, Weatherspoon filed this pro se action asserting claims 

under 42 U.S.C. § 1983. (See ECF #1.) As relevant here, Weatherspoon alleges 

that: 

1. On three occasions in early 2013, Hering, a registered nurse 

employed by the MDOC, denied Weatherspoon access to pain 

relief medication that he needed for his leg pain (see ECF #1 at 

¶13; see also ECF #18-2 at ¶1); 

2. On March 3, 2013, Wang (a dentist) and Pavitt (a registered 

dental hygienist) “repeatedly failed to provide [Weatherspoon] 

teeth cleaning, dentures, urgent and routine dental care when 

treatment was available” (ECF #1 at ¶13; see also ECF #18-3 at 

¶1 and ECF #18-4 at ¶1); and 

3. Between January 29 and April 29, 2013, Taylor – a 

“Corrections Resident Representative (Grievance Coordinator)” 

employed by the MDOC (ECF #18-5 at ¶1) – retaliated against 

Weatherspoon by failing to process and/or respond to internal 

prison grievances that he tried to file (see ECF #1 at ¶16.) 

Weatherspoon insists that these acts by the MDOC Defendants violated his rights 

under the First and/or Eighth Amendments. (See id. at ¶¶18-21, 23-25.) 

 The MDOC moved for summary judgment as to all of Weatherspoon’s 

claims against them (the “MDOC Defendants’ Motion for Summary Judgment”). 

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(See ECF #18.) Weatherspoon responded to that motion and also filed “Motion[s] 

to Dismiss [the MDOC Defendants’] Summary Judgment Motion[s] Pursuant to 

Fed. R. Civ. P. Rule 56.” (ECF #38-41.) This Court construes Weatherspoon’s 

“motions” as both supplemental responses to the MDOC Defendants’ motion for 

summary judgment and as separate, cross-motions for summary judgment 

(“Weatherspoon’s Motions for Summary Judgment”). 

 On April 24, 2015, the Magistrate Judge issued his R&R in which he 

recommended that the Court grant the MDOC Defendants’ Motion for Summary 

Judgment and deny Weatherspoon’s Motions for Summary Judgment. (See ECF 

#49.) The Magistrate Judge stated that the MDOC Defendants are entitled to 

qualified immunity as to all of Weatherspoon’s claims because “there is no 

evidence that the MDOC Defendants violated Weatherspoon’s rights under the 

First or Eight Amendments.” (Id. at 5, Pg. ID 335.) The Magistrate Judge advised 

the parties that they could file objections to the R&R within 14 days. (See id. at 

12, Pg. ID 342.) 

 On May 7, 2015, Weatherspoon sought an extension of time in which to file 

objections to the R&R (the “Motion to Extend”). (See ECF #50.) Weatherspoon 

filed his Objections on May 15, 2015. (See ECF #52.) The Court has considered 

Weatherspoon’s Objections on their merits and, for the reasons discussed below, 

OVERRULES the Objections. 

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GOVERNING LEGAL STANDARD 

Where a party has objected to portions of a Magistrate Judge's Report and 

Recommendation, the Court conducts a de novo review of those portions. See Fed. 

R. Civ. P. 72(b). A movant is entitled to summary judgment when it “shows that 

there is no genuine dispute as to any material fact....” U.S. SEC v. Sierra Brokerage 

Services, Inc., 712 F.3d 321, 326–27 (6th Cir. 2013) (citing Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 251–52 (1986)) (quotations omitted). When reviewing 

the record, “the court must view the evidence in the light most favorable to the 

non-moving party and draw all reasonable inferences in its favor.” Id. “The mere 

existence of a scintilla of evidence in support of the [non-moving party’s] position 

will be insufficient; there must be evidence on which the jury could reasonably 

find for [that party].” Anderson, 477 U.S. at 252. Summary judgment is not 

appropriate when “the evidence presents a sufficient disagreement to require 

submission to a jury.” Id. at 251-252. Indeed, “[c]redibility determinations, the 

weighing of the evidence, and the drafting of legitimate inferences from the facts 

are jury functions, not those of a judge...” Id. at 255. 

ANALYSIS

A. Weatherspoon’s Claim Against Hering 

Weatherspoon first objects to the Magistrate Judge’s recommendation that 

Hering is entitled to qualified immunity on Weatherspoon’s claim that Hering 

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acted with deliberate indifference to his medical needs. An Eighth Amendment 

deliberate indifference claim has two components, one objective and the other 

subjective. See Farmer v. Brennan, 511 U.S. 825, 834 (1994); Comstock v. 

McCrary, 273 F.3d 693, 702 (6th Cir. 2001). To satisfy the objective component, 

the plaintiff must show “that the medical need at issue is ‘sufficiently serious.’” 

Comstock, 273 F.3d at 702. To satisfy the subjective component, the plaintiff must 

show “that the official being sued subjectively perceived facts from which to infer 

substantial risk to the prisoner, that [s]he did in fact draw the inference, and that 

[s]he then disregarded that risk.” Id.

The Magistrate Judge stated: 

Weatherspoon indicates that, at his March 10th visit with 

Hering, she provided him with “4 tablet[s] of pain relief 

medication.” Thus ... by his own admission, Hering did 

not completely withhold medication; rather, she simply 

provided a smaller quantity (and perhaps a different type) 

of medication than Weatherspoon desired. 

... 

Hering ... submitted an affidavit in which she indicates 

that she saw Weatherspoon in healthcare on March 11, 

2013, after her had submitted a “kite” requesting medical 

attention. According to Hering, she examined 

Weatherspoon and obtained his vital signs. He presented 

with “no acute symptoms,” and – just prior to this nurse 

visit – had been evaluated by Dr. Abdellatif (another 

named defendant) and provided with pain medication. 

Weatherspoon also alleges that Hering refused his 

request for referral to an outside hospital and evaluation 

by a specialist; however, Hering attests that registered 

nurses do not have the authority to make such referrals, 

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and Weatherspoon has offered no evidence suggesting 

otherwise. Thus, where Weatherspoon admits that 

Hering provided him with medical attention and pain 

medication, and simply disagrees with Hering’s decision 

not to provide him with additional medication or refer 

him to a specialist, summary judgment in Hering’s favor 

is appropriate. See, e.g., Allison v. Martin, 2009 WL 

2885088, at *6 (E.D. Mich. Sept. 2, 2009) (“In cases 

where an inmate alleges deliberate indifference but the 

record demonstrates that the inmate received medical 

attention and is, in essence, filing suit because he 

disagrees with certain decisions made by the medical 

staff, the defendant is entitled to summary judgment.”); 

Umbarger v. Corr. Med. Servs., 93 F. App’x 734, 736 

(6th Cir. 2004) (holding that a difference of opinion or 

disagreement between a prisoner and prison medical staff 

over the kinds of treatment the prisoner needs do not rise 

to the level of deliberate indifference). 

(ECF #49 at 7-8, Pg. ID 337-38) (footnote and citations to record omitted). 

 Weatherspoon objects to the R&R on the ground that Hering’s affidavit is a 

“sham.” (ECF #52 at 1, Pg. ID 349.) Weatherspoon insists that Hering’s affidavit 

is false because she examined Weatherspoon on March 9 and 10, 2013, but not on 

March 11, 2013. (See id.) However, Weatherspoon has not shown that the date on 

which Hering examined him is a material fact. Indeed, even accepting 

Weatherspoon’s version of events as true – i.e., that Hering examined 

Weatherspoon on March 9 and 10 but not on March 11 – Weatherspoon’s claim 

against Hering still boils down to his apparent disagreement with the type and/or 

quantity of pain medication that Hering prescribed him. As the Magistrate Judge 

correctly recognized, Weatherspoon cannot establish an Eighth Amendment 

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deliberate indifference claim on this basis.    See, e.g., Thomas v. Coble, 55 Fed. 

App’x 748 (6th Cir. 2003) (affirming dismissal of deliberate indifference claim 

based upon failure to prescribe requested pain medication where plaintiff had been 

prescribed pain medications, just not the ones he requested) 

B. Weatherspoon’s Claims Against Wang and Pavitt 

Weatherspoon next objects to the Magistrate Judge’s recommendation that 

Wang and Pavitt are entitled to qualified immunity on Weatherspoon’s claims that 

they acted with deliberate indifference to his medical needs. The Magistrate Judge 

stated: 

Weatherspoon alleges that, on March 3, 2013, Pavitt and 

Wang “failed to provide teeth cleaning, dentures, [and] 

urgent and routine dental care when treatment was 

available.” In their affidavits, however, Wang ... and 

Pavitt ... indicate that, on February 26, 2013, the dental 

clinic received a request for dental services from 

Weatherspoon, in which he complained about a 

bump/sore on his gums. Weatherspoon was placed on 

the callout list for March 4, 2013, but he was a “no 

show” for his appointment, which was promptly 

rescheduled. Dr. Wang performed an emergency 

examination of Weatherspoon’s gums two days later, on 

March 6, 2013, at which time no bumps or sores were 

present on his gums. Although Weatherspoon now 

claims that he presented with “symptoms of swelling, 

infection and bleeding,” the medical records indicate 

otherwise, specifically stating, “[n]o sore present” and 

the sore “[h]ad been present for 10 days and then 

‘disappeared.’” According to Wang’s and Pavitt’s 

affidavits, as well as the relevant medical records, 

Weatherspoon also requested that he be provided a lower 

partial denture at this time. Weatherspoon was informed 

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that he had been placed on the prosthetic list, but he 

transferred out of [the Macomb Correctional Facility] on 

April 30, 2013, before the dental work could be 

completed. Both Pavitt and Wang attest that at no time 

did they deny Weatherspoon necessary dental care, and 

Weatherspoon has come forward with no evidence to the 

contrary. Again, then, despite the fact that Weatherspoon 

believes he should have had his teeth cleaned and been 

provided with dentures at his March 2013 dental visit, his 

allegations amount to nothing more than a vague dispute 

over the adequacy of the dental care his was provided. 

This is insufficient to establish a constitutional violation, 

and, thus, summary judgment is appropriate on 

Weatherspoon’s Eight Amendment claims against Pavitt 

and Wang. See Allison, 2009 WL 2885088, at *6; 

Umbarger, 93 F. App’x at 736. 

(ECF #49 at 8-9, Pg. ID 338-39) (footnote and citations to record omitted). 

Weatherspoon again objects to the R&R on the ground that Wang’s and 

Pavitt’s affidavits are a “sham.” (ECF #52 at 2, Pg. ID 350.) Weatherspoon 

contends that the affidavits are contradictory because Pavitt attested that 

Weatherspoon received dental treatment on March 4, 2013 (see ECF #18-4 at ¶4), 

whereas Wang attested that Weatherspoon “did not report to the dental clinic” on 

March 4, 2015, and instead received treatment on March 6, 2013. (ECF #18-3 at 

¶3.) But Weatherspoon has not shown that the alleged inconsistencies in the 

affidavits regarding his treatment date are material to his Eighth Amendment 

deliberate indifference claim. 

Moreover, and in any event, Weatherspoon has not presented evidence that 

Wang and Pavitt were deliberately indifferent to his medical needs. Weatherspoon 

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submitted affidavits in which he asserts that Wang “did not act reasonably” and 

that Pavitt “violated a health and safety regulation and standard of care” in 

responding to Weatherspoon’s dental health issues. (ECF #41 at ¶6; ECF #38 at 

¶6.) But “that is the language of medical malpractice, not deliberate indifference.” 

Bruederle v. Louisville Metro Gov’t, 687 F.3d 771, 778 (6th Cir. 20120); see also 

Comstock, 273 F.3d at 703 (allegations that a health care provider acted 

unreasonably and/or did not meet the standard of care are insufficient to establish 

deliberate indifference under the Eighth Amendment). Weatherspoon has not 

shown that Wang and Pavitt “subjectively perceived facts from which to infer 

substantial risk to [Weatherspoon], that [they] did in fact draw the inference, and 

that [they] then disregarded that risk.” Comstock, 273 F.3d at 702. Accordingly, 

Wang and Pavitt are entitled to summary judgment. 

C. Weatherspoon’s Claim Against Taylor 

Finally, Weatherspoon objects to the Magistrate Judge’s recommendation 

that Taylor is entitled to qualified immunity on Weatherspoon’s claim that she 

retaliated against him in violation of the First Amendment by failing to process 

and/or respond to internal prison grievances that he tried to file. In order to 

establish First Amendment retaliation, a “a plaintiff must prove that 1) he engaged 

in protected conduct, 2) the defendant took an adverse action that would deter a 

person of ordinary firmness from continuing to engage in that conduct, and 3) the 

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adverse action was taken at least in part because of the exercise of the protected 

conduct.” Siggers-El v. Barlow, 412 F.3d 693, 699 (6th Cir. 2005). 

 The Magistrate Judge stated: 

Weatherspoon does nothing more than allege the ultimate 

conclusion of retaliation. He simply asserts – without 

any detail or evidentiary support whatsoever – that 

Taylor took adverse action against him (by allegedly 

denying him the ability to file grievances) in retaliation 

for some (unspecified) alleged protected activity. 

Weatherspoon has not identified the underlying protected 

activity in which he allegedly engaged, has not 

demonstrated that Taylor was aware of that alleged 

activity, and has not offered any evidence of unlawful, 

retaliatory motivation on her part. Accordingly, because 

Weatherspoon has not established that Taylor violated his 

clearly established First Amendment rights, Taylor is 

entitled to qualified immunity. See Harbin-Bey [v. 

Rutter], 420 F.3d [571,] 580 [(6th Cir. 2005)] 

(“conclusory allegations of retaliatory motive 

unsupported by material facts will not be sufficient to 

state ... a claim under § 1983.”) (internal quotations 

omitted). 

(ECF #49 at 10-11, Pg. ID 340-41) (footnote and citations to record omitted). 

 Weatherspoon insists that he has presented evidence that Taylor retaliated 

against him. (See ECF #52 at 3, Pg. ID 351.) Weatherspoon cites to a letter dated 

January 2, 2013, from Warden Duncan MacLaren (the “MacLaren Letter”) 

informing Weatherspoon that he had been placed on “Modified Access Status” 

because he had filed too many rejected grievances. (See id. (citing ECF #1 at 36, 

Pg. ID 36).) The MacLaren Letter further stated that Weatherspoon would have to 

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“explain [his] issue to the Grievance Coordinator” prior to filing a grievance and 

that the Grievance Coordinator “will decide if the issue is grievable and has merit.” 

(ECF #1 at 36, Pg. ID 36.) But the MacLaren Letter is not evidence that Taylor 

took any adverse action against Weatherspoon, nor that Taylor had any animus 

against Weatherspoon. The MacLaren Letter is therefore insufficient to create a 

genuine issue of material fact as to Weatherspoon’s allegations that Taylor 

retaliated against him in violation of the First Amendment. 

Weatherspoon also objects to the R&R on the ground that Taylor’s sworn 

statements that she did not “interfere with the grievance process” or “retaliate 

against prisoner Weatherspoon” (ECF #18-5 at ¶¶3-4) are “not credible.” (ECF 

#52 at 3, Pg. ID 351.) But “credibility judgments ... are prohibited” at the 

summary judgment stage, Schreiber v. Moe, 596 F.3d 323, 333 (6th Cir. 2010), 

and, in any event, the Magistrate Judge did not rely on Taylor’s affidavit. Because 

Weatherspoon has not presented evidence sufficient to create a genuine issue of 

material fact, Taylor is entitled to summary judgment. 

CONCLUSION 

 For the reasons discussed in this Order, IT IS HEREBY ORDERED that 

the MDOC’s Motion for Summary Judgment (ECF #18) is GRANTED and 

Weatherspoon’s Motions for Summary Judgment (ECF ##38-41) are DENIED. 

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IT IS FURTHER ORDERED that Weatherspoon’s Motion to Extend 

(ECF #50) is TERMINATED AS MOOT. 

s/Matthew F. Leitman 

 MATTHEW F. LEITMAN 

 UNITED STATES DISTRICT JUDGE 

Dated: August 31, 2015 

I hereby certify that a copy of the foregoing document was served upon the parties 

and/or counsel of record on August 31, 2015, by electronic means and/or ordinary 

mail. 

 s/Holly A. Monda 

 Case Manager 

 (313) 234-5113 

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