UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

MORRIS WEATHERSPOON, #471817, 

 Plaintiff, Civil Action No. 14-12789 

 Honorable Matthew F. Leitman 

v. Magistrate Judge David R. Grand 

 

GEORGE LNU, et al., 

 

 Defendants. 

__________________________________/ 

REPORT AND RECOMMENDATION TO GRANT THE MDOC 

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [18] AND TO DENY 

PLAINTIFF’S CROSS-MOTIONS FOR SUMMARY JUDGMENT [38, 39, 40, 41] 

Before the Court is the Motion for Summary Judgment filed on November 3, 2014, by 

Defendants Jon Pavitt, Gail Wang, Eutrilla Taylor, and Diana Hering, all of whom are employed 

by the Michigan Department of Corrections (“MDOC”) (collectively the “MDOC Defendants”). 

(Doc. #18). Plaintiff Morris Weatherspoon (“Weatherspoon”), an incarcerated person, filed a 

response to this motion on December 18, 2014 (Doc. #32), and no reply was filed. Also before 

the Court are four “Motion[s] to Dismiss [the MDOC Defendants’] Summary Judgment 

Motion,” filed by Weatherspoon on December 18, 2014, each directed to one of the MDOC 

Defendants. (Docs. #38-41). The MDOC Defendants did not file responses to any of 

Weatherspoon’s motions. The Court will construe Weatherspoon’s “motions” both as 

supplemental responses to the MDOC Defendants’ motion for summary judgment and as 

separate, cross-motions for summary judgment. 

An Order of Reference was entered on October 30, 2014, referring all pretrial matters to 

the undersigned pursuant to 28 U.S.C. §636(b). (Doc. #16). Generally, the Court will not hold a 

hearing on a motion in a civil case in which a party is in custody. See E.D. Mich. L.R. 7.1(f). 

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Here, the Court finds that the facts and legal issues are adequately presented in the briefs and on 

the record, and it declines to order a hearing at this time. 

I. RECOMMENDATION 

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

Motion for Summary Judgment [18] be GRANTED and Plaintiff’s Motions to Dismiss 

Defendants’ Motion for Summary Judgment [38, 39, 40, 41] be DENIED. 

II. REPORT 

A. Background

Weatherspoon is currently incarcerated by the MDOC at the Muskegon Correctional 

Facility in Muskegon, Michigan, but the conduct about which he complains took place at the 

Macomb Correctional Facility (“MRF”) in New Haven, Michigan. On July 3, 2014, 

Weatherspoon commenced this action by filing a pro se civil rights complaint pursuant to 42 

U.S.C. §1983, alleging violations of his rights under the First and Eighth Amendments to the 

United States Constitution. 

At issue in the instant motions are the allegations Weatherspoon makes in his complaint 

against Defendants Pavitt, Wang, Taylor, and Hering. First, Weatherspoon alleges that he was 

suffering from leg pain on January 31, March 10, and April 8, 2013, and that on at least one of 

those dates, Defendant Hering denied him pain medication to address that issue. (Doc. #1 at 

¶13). Second, Weatherspoon claims that, on March 3, 2013, Defendants Wang and Pavitt failed 

to provide teeth cleaning, dentures, and other dental care. (Id. at ¶14). And, finally, 

Weatherspoon alleges that, between January 29, 2013, and April 29, 2013, Defendant Taylor 

retaliated against him by failing to process and/or respond to internal prison grievances he sought 

to file. (Id. at ¶16). 

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The MDOC Defendants filed a motion for summary judgment with respect to all of 

Weatherspoon’s allegations against them. (Doc. #18). Weatherspoon filed a response to that 

motion, as well as separate “motions to dismiss” the MDOC Defendants’ motion, in which 

Weatherspoon also asks the Court to enter summary judgment in his favor. (Docs. #32, 38, 39, 

40, 41). 

B. Standard of Review

Federal Rule of Civil Procedure 56 provides: “The Court shall grant summary judgment 

if the movant shows that there is no genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Pittman v. Cuyahoga 

County Dep’t of Children & Family Servs., 640 F.3d 716, 723 (6th Cir. 2011). A fact is material 

if it might affect the outcome of the case under governing law. See Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material fact exists, 

the court assumes the truth of the non-moving party’s evidence and construes all reasonable 

inferences from that evidence in the light most favorable to the non-moving party. See Ciminillo 

v. Streicher, 434 F.3d 461, 464 (6th Cir. 2006). 

The party seeking summary judgment bears the initial burden of informing the court of 

the basis for its motion, and must identify particular portions of the record that demonstrate the 

absence of a genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 

325 (1986); Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009). “Once the moving 

party satisfies its burden, ‘the burden shifts to the nonmoving party to set forth specific facts 

showing a triable issue.’” Wrench LLC v. Taco Bell Corp., 256 F.3d 446, 453 (6th Cir. 2001) 

(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). In 

response to a summary judgment motion, the opposing party may not rest on its pleadings, nor 

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“‘rely on the hope that the trier of fact will disbelieve the movant’s denial of a disputed fact’ but 

must make an affirmative showing with proper evidence in order to defeat the motion.” 

Alexander, 576 F.3d at 558 (quoting Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 

1989)). Indeed, “‘[t]he failure to present any evidence to counter a well-supported motion for 

summary judgment alone is grounds for granting the motion.’” Id. (quoting Everson v. Leis, 556 

F.3d 484, 496 (6th Cir. 2009)). “Conclusory statements unadorned with supporting facts are 

insufficient to establish a factual dispute that will defeat summary judgment.” Id. at 560 (citing

Lewis v. Philip Morris, Inc., 355 F.3d 515, 533 (6th Cir. 2004)). 

A moving party with the burden of proof (typically the plaintiff) faces a “substantially 

higher hurdle.” Arnett v. Myers, 281 F.3d 552, 561 (6th Cir. 2002). As set forth above, the 

moving party without the burden of proof needs only show that the opponent cannot sustain his 

burden at trial. “But where the moving party has the burden – the plaintiff on a claim for relief 

or the defendant on an affirmative defense – his showing must be sufficient for the court to hold 

that no reasonable trier of fact could find other than for the moving party.” Calderone v. U.S., 

799 F.2d 254, 259 (6th Cir. 1986) (internal citations omitted). Accordingly, summary judgment 

in favor of the plaintiff “is inappropriate when the evidence is susceptible of different 

interpretations or inferences by the trier of fact.” Harris v. Kowalski, 2006 WL 1313863, at *3 

(W.D. Mich. May 12, 2006) (quoting Hunt v. Cromartie, 526 U.S. 541, 553 (1999)). 

C. Analysis

In their motion, the MDOC Defendants argue that summary judgment in their favor is 

warranted on qualified immunity grounds.1

 (Doc. #18 at 19-25). Specifically, the MDOC 

 

1

 The MDOC Defendants also argue that summary judgment is appropriate because 

Weatherspoon failed to exhaust his administrative remedies. (Doc. #18 at 11-19). Because the 

Court finds that qualified immunity shields the MDOC Defendants from liability, however, it 

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Defendants argue that because they did not violate Weatherspoon’s clearly established rights 

under the First or Eighth Amendment, his claims are barred by the doctrine of qualified 

immunity. (Id.). As set forth in greater detail below, the Court finds merit to this argument. 

 1. General Legal Standards 

Under the doctrine of qualified immunity, governmental officials performing 

discretionary functions are shielded from civil liability unless their conduct violates a clearly 

established constitutional right. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified 

immunity is premised upon the avoidance of unnecessary burdens of litigation, and therefore the 

privilege is an immunity from suit and not a mere defense to liability. See Saucier v. Katz, 533 

U.S. 194, 200 (2001). Determining the applicability of qualified immunity requires a two-step 

inquiry into whether the facts, when viewed in the light most favorable to the plaintiff, would 

permit a reasonable juror to find that: (1) the defendant violated a constitutional right; and (2) 

the right was clearly established. See Saucier, 533 U.S. at 201. In conducting this inquiry, the 

court is “permitted to exercise [its] sound discretion in deciding which of the two prongs of the 

qualified immunity analysis should be addressed first in light of the circumstances in the 

particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009); see also Bishop v. 

Hackel, 636 F.3d 757, 772 (6th Cir. 2011). Here, for the reasons discussed below, there is no 

evidence that the MDOC Defendants violated Weatherspoon’s rights under the First or Eighth 

Amendment; as such, qualified immunity bars his claims against them. 

2. Weatherspoon’s Eighth Amendment Claims Against 

 Hering, Wang, and Pavitt are Barred by Qualified Immunity 

In his complaint, Weatherspoon pleads Eighth Amendment claims against Defendants 

 

need not address the merits of their exhaustion argument. Thus, the Court will assume, for 

purposes of ruling on the instant motions, that Weatherspoon properly exhausted his claims 

against the MDOC Defendants. 

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Hering, Wang, and Pavitt. The Cruel and Unusual Punishment Clause of the Eighth Amendment 

prohibits conduct by prison officials that involves the “unnecessary and wanton infliction of 

pain” upon inmates. Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir. 1987) (internal citations 

omitted). An Eighth Amendment claim has two components, one objective and one subjective. 

To meet the objective prong, a plaintiff must demonstrate that he has been incarcerated under 

conditions posing a substantial risk of serious harm. See Farmer v. Brennan, 511 U.S. 825, 834 

(1994). To meet the subjective prong, a plaintiff must demonstrate that the defendant acted with 

deliberate indifference. See Jones v. Michigan, 698 F. Supp. 2d 905, 915 (E.D. Mich. 2010). 

More specifically, a plaintiff must demonstrate that a prison official knew of and disregarded an 

excessive risk to inmate health or safety by showing that (1) the official was aware of facts from 

which an inference could be drawn that a substantial risk of serious harm existed, and (2) the 

official actually drew the inference. See Farmer, 511 U.S. at 837. 

As the Sixth Circuit has recognized, the requirement that the official subjectively 

perceived a risk of harm and then disregarded it is “meant to prevent the constitutionalization of 

medical malpractice claims; thus, a plaintiff alleging deliberate indifference must show more 

than negligence or the misdiagnosis of an ailment.” Comstock v. McCrary, 273 F.3d 693, 703 

(6th Cir. 2001). The Comstock court further explained: 

When a prison doctor provides treatment, albeit carelessly or 

inefficaciously, to a prisoner, he has not displayed a deliberate 

indifference to the prisoner’s needs, but merely a degree of incompetence 

which does not rise to the level of a constitutional violation. On the other 

hand, a plaintiff need not show that the official acted ‘for the very purpose 

of causing harm or with knowledge that harm will result.’ Instead, 

‘deliberate indifference to a substantial risk of serious harm to a prisoner is 

the equivalent of recklessly disregarding that risk.’ 

Id. (internal citations omitted). 

In his complaint, Weatherspoon alleges that on January 31, March 10, and April 8, 2013, 

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he was suffering from “severe and intense” leg pain. (Doc. #1 at ¶13). Weatherspoon alleges, 

generally, that Defendant Hering and three other named defendants “withheld [his] (recorded and 

documented) prescribed pain relief medication2

 and prevented [him] access to a physician 

capable of evaluating [his] need for adequate treatment.” (Id. (footnote added)). The Sixth 

Circuit has recognized, however, that, “Persons sued in their individual capacities under §1983 

can be held liable based only on their own unconstitutional behavior.” Heyerman v. County of 

Calhoun, 680 F.3d 642, 647 (6th Cir. 2012). Thus, in order to succeed on his Eighth 

Amendment claim against Hering, Weatherspoon must show that she – individually and directly 

– was deliberately indifferent to his serious medical needs. He has failed to do so. 

As noted above, Hering, a registered nurse at MRF, submitted an affidavit in which she 

indicates that she saw Weatherspoon in healthcare on March 11, 2013, after he had submitted a 

“kite” requesting medical attention. (Doc. #18 at Ex. 1, ¶3). According to Hering, she examined 

Weatherspoon and obtained his vital signs. (Id.). 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.3

 (Id. at ¶4). Weatherspoon also alleges that Hering refused 

his request for referral to an outside hospital and evaluation by a specialist; however, Hering 

 

2

 In an affidavit in support of her motion for summary judgment, Hering asserts that she only saw 

Weatherspoon on March 11, 2013. (Doc. #18 at Ex. 1, ¶3). In his cross-motion for summary 

judgment, Weatherspoon responded by reiterating that his interaction with Hering took place on 

March 10th, but he did not dispute Hering’s assertion that she was not involved in either the 

January 31 or April 8, 2013 visits referenced in Weatherspoon’s complaint. (Doc. #39 at 4). 

Importantly, Weatherspoon indicates that, at his March 10th visit with Hering, she provided him 

with “4 tablet[s] of pain relief medication.” (Id.). Thus, even assuming Weatherspoon is correct 

about the date of his visit with Hering, 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. 

3

 Weatherspoon acknowledges in his cross-motion that Dr. Abdellatif provided him with an 

additional sixty (60) tablets of pain relief medication on March 13, 2013 – just two days after he 

was seen and given pain medicine by Hering. (Doc. #39 at 4). Thus, at most, Weatherspoon was 

without the pain medication he desired for approximately two days. 

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attests that registered nurses do not have the authority to make such referrals (Id. at ¶3), 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).

For the same reasons, Weatherspoon cannot succeed on his claims against Defendants 

Pavitt and Wang. In his complaint, 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.” (Doc. #1 at ¶14). In their affidavits, however, Wang (a dentist at 

MRF) and Pavitt (a registered dental hygienist at MRF) 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. (Doc. #18 at Ex. 2, ¶3 and Ex. 3, ¶3; Doc. #19 at 18). 

Weatherspoon was placed on the callout list for March 4, 2013, but he was a “no show” for his 

appointment, which was promptly rescheduled.4

 (Id.). Dr. Wang performed an emergency 

 

4

 Weatherspoon claims that he never received notice of this March 4th appointment. (Doc. #41 at 

4). He does not deny, however, that he did not see Dr. Wang on March 4th, and there is no 

dispute that Dr. Wang examined him just two days later, on March 6, 2013, by which time the 

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examination of Weatherspoon’s gums two days later, on March 6, 2013, at which time no bumps 

or sores were present on his gums. (Id.). Although Weatherspoon now claims that he presented 

with “symptoms of swelling, infection and bleeding” (Doc. #41 at 8), the medical records 

indicate otherwise, specifically stating “[n]o sore present” and the sore “[h]ad been present for 

10 days and then ‘disappeared.’” (Doc. #19 at 18). 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. (Id.). Weatherspoon was informed that he had been placed on the 

prosthetic list, but he transferred out of MRF on April 30, 2013, before the dental work could be 

completed. (Doc. #18 at Ex. 2, ¶3). Both Pavitt and Wang attest that at no time did they deny 

Weatherspoon necessary dental care (Id. at Ex. 2, ¶4 and Ex. 3, ¶4), 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 he was provided. This is insufficient to establish a Constitutional violation, and, 

thus, summary judgment is appropriate on Weatherspoon’s Eighth Amendment claims against 

Pavitt and Wang. See Allison, 2009 WL 2885088, at *6; Umbarger, 93 F. App’x at 736.

3. Qualified Immunity Also Bars Weatherspoon’s 

 First Amendment Retaliation Claim 

Weatherspoon also asserts in his complaint that, between January 29, 2013, and April 29, 

2013, while he was on “modified access,”5

 Defendant Taylor retaliated against him, in violation 

 

bump/sore had disappeared. (Doc. #19 at 18). 

5

 MDOC Policy Directive 03.02.130 (entitled “Prisoner/Parolee Grievances”) provides that a 

prisoner who “files an excessive number of grievances which are vague, duplicative, raise nongrievable issues, or contain prohibited language” may be placed on “modified access” to the 

grievance process. (Doc. #18 at Ex. 5, ¶HH). In that case, the prisoner must obtain grievance 

forms from the facility’s Grievance Coordinator, who may deny such forms if the issue raised is 

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of the First Amendment, by failing to process and/or respond to internal prison grievances he 

sought to file. (Doc. #1 at ¶16). Taylor, the Grievance Coordinator at MRF, submitted an 

affidavit denying Weatherspoon’s allegations and indicating that at no time did she refuse to 

provide grievance forms to Weatherspoon or otherwise interfere with his use of the grievance 

process. (Doc. #18 at Ex. 4). 

Under Sixth Circuit law, to establish a claim for First Amendment retaliation, the plaintiff 

must show that: (1) he engaged in protected conduct; (2) an adverse action was taken against 

him that would deter a person of ordinary firmness from continuing to engage in that conduct; 

and (3) there is a causal connection between the protected conduct and the adverse action – that 

is, the adverse action was motivated at least in part by the plaintiff’s protected conduct. See 

Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999). 

It is well-recognized that retaliation is easy to allege and that it can seldom be 

demonstrated by direct evidence. See Harbin-Bey v. Rutter, 420 F.3d 571, 580 (6th Cir. 2005). 

However, “alleging merely the ultimate fact of retaliation is insufficient.” Murphy v. Lane, 833 

F.2d 106, 108 (7th Cir. 1987). “[B]ecause prisoner retaliation claims are easily fabricated, and 

accordingly pose a substantial risk of unwarranted judicial intrusion into matters of general 

prison administration, we are careful to require non-conclusory allegations.” Thomson v. Spitter, 

2014 WL 235485, at *11 (W.D. Mich. Jan. 22, 2014) (quoting Bennett v. Goord, 343 F.3d 133, 

137 (2d Cir. 2003) (internal quotation marks omitted)). 

In this case, Weatherspoon does nothing more than allege the ultimate conclusion of 

retaliation. He simply asserts – without any detail or evidentiary support whatsoever – that 

 

not grievable or otherwise fails to meet the policy’s criteria outlined in the policy. (Id. at ¶KK). 

Although the MDOC Defendants deny that Weatherspoon was on modified access, solely for the 

purpose of addressing the instant motions, the Court will accept Weatherspoon’s allegations as 

true. 

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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, 420 F.3d at 580 (“conclusory allegations of retaliatory motive 

unsupported by material facts will not be sufficient to state ... a claim under §1983.”) (internal 

quotations omitted).6

4. Weatherspoon’s Cross-Motions for Summary Judgment Should be Denied

Lastly, for all of the reasons stated above, summary judgment in Weatherspoon’s favor 

should be denied. As set forth above, because Weatherspoon is the plaintiff in this case, to 

prevail on his summary judgment motions, he must make a showing “sufficient for the court to 

hold that no reasonable trier of fact could find other than for [him].” Calderone, 799 F.2d at 259. 

Here, where the evidence establishes that summary judgment in favor of the MDOC Defendants 

is appropriate, Weatherspoon’s motions for summary judgment (Docs. #38-41) against these 

defendants should be denied. 

III. CONCLUSION 

For the reasons set forth above, IT IS RECOMMENDED that the MDOC Defendants’ 

 

6

 Moreover, even if the Court were to credit Weatherspoon’s unsupported allegations that Taylor 

refused to provide him with grievance forms and/or process his grievances, Weatherspoon 

alleges only that, in doing so, Taylor “prevent[ed] [him] from exhausting administrative 

remedies” and, thus, “hindered [his] access to the courts ....” (Doc. #40 at 4). Here, however, 

where the Court has assumed for purposes of this Report and Recommendation that 

Weatherspoon fully exhausted his administrative remedies, the alleged harm about which he 

complains is immaterial. 

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Motion for Summary Judgment [18] be GRANTED and Weatherspoon’s Motions to Dismiss 

Defendants’ Motions for Summary Judgment [38, 39, 40, 41] be DENIED. 

Dated: April 24, 2015 s/ David R. Grand 

 DAVID R. GRAND 

 UNITED STATES MAGISTRATE JUDGE 

NOTICE TO THE PARTIES REGARDING OBJECTIONS 

Within 14 days after being served with a copy of this Report and Recommendation and 

Order, any party may serve and file specific written objections to the proposed findings and 

recommendations and the order set forth above. See 28 U.S.C. §636(b)(1); Fed. R. Civ. P. 

72(b)(2); E.D. Mich. LR 72.1(d)(1). Failure to timely file objections constitutes a waiver of any 

further right of appeal. See Thomas v. Arn, 474 U.S. 140, (1985); United States v. Sullivan, 431 

F.3d 976, 984 (6th Cir. 2005). Only specific objections to this Report and Recommendation will 

be preserved for the Court’s appellate review; raising some objections but not others will not 

preserve all objections a party may have. See Smith v. Detroit Fed’n of Teachers Local 231, 829 

F.2d 1370, 1373 (6th Cir. 1987); see also Frontier Ins. Co. v. Blaty, 454 F.3d 590, 596-97 (6th 

Cir. 2006). Copies of any objections must be served upon the Magistrate Judge. See E.D. Mich. 

LR 72.1(d)(2). 

A party may respond to another party’s objections within 14 days after being served with 

a copy. See Fed. R. Civ. P. 72(b)(2); 28 U.S.C. §636(b)(1). Any such response should be 

concise, and should address specifically, and in the same order raised, each issue presented in the 

objections. 

 

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CERTIFICATE OF SERVICE

 The undersigned certifies that the foregoing document was served upon counsel of record 

and any unrepresented parties via the Court’s ECF System to their respective email or First Class 

U.S. mail addresses disclosed on the Notice of Electronic Filing on April 24, 2015. 

 s/Eddrey O. Butts 

 EDDREY O. BUTTS 

 Case Manager 

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