UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DOUGLAS McCRAY,

Plaintiff Civil Action No. 14-12975

Honorable Mark A. Goldsmith

v. Magistrate Judge David R. Grand

AMINAH AL-SAEEDI and

WAYNE COUNTY JAIL-DICKERSON,

Defendants.

__________________________________/

REPORT AND RECOMMENDATION TO GRANT DEFENDANTS’

MOTION TO DISMISS AND FOR SUMMARY JUDGMENT [18] AND DENY

PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT [22]

Before the Court is a Motion to Dismiss and for Summary Judgment filed by Defendants

Aminah Al-Saeedi (“Al-Saeedi”) and Wayne County (collectively “Defendants”) on March 20, 

2015. (Doc. #18). On April 9, 2015, Plaintiff Douglas McCray (“McCray”) filed a response to 

Defendants’ motion, which purports to contain a cross-motion for summary judgment. (Doc. 

#22). On May 13, 2015, Defendants filed a response to McCray’s cross-motion. (Doc. #24). 

An Order of Reference was entered on August 5, 2014, referring all pretrial matters to the 

undersigned pursuant to 28 U.S.C. §636(b). (Doc. #5).

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). Here, the Court finds that the facts and legal issues are 

adequately presented in the briefs and on the record and declines to order a hearing at the time.

I. RECOMMENDATION

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

Dismiss and for Summary Judgment [18] be GRANTED, and McCray’s Cross-Motion for 

Summary Judgment [22] be DENIED.

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II. REPORT

A. The Relevant Facts

This is a pro se civil rights action brought under 42 U.S.C. §1983 by McCray, who 

currently is a prisoner of the Michigan Department of Corrections (“MDOC”). McCray’s

lawsuit arises out of his prior incarceration at the Wayne County Jail between December 2013 

and February 2014. (Doc. #1). Broadly speaking, McCray alleges that Al-Saeedi and Wayne 

County were deliberately indifferent to his serious medical need in violation of the Eighth 

Amendment to the United States Constitution.1 (Id.).

In his complaint, McCray asserts that, on January 19, 2014,2 his left hand was injured 

during a fight with another inmate at the Wayne County Jail. (Id. at 5). McCray testified at his 

deposition that he was taken to the Jail’s medical department immediately after the fight, but 

because he did not initially experience any pain in his hand, he was subsequently transported to 

segregation pending an investigation. (Doc. #18 at Ex. 1, pp. 15-16). After arriving in 

segregation, however, McCray “noticed the pain and throbbing” in his hand and was taken back 

to the medical department for examination. (Id. at Ex. 1, pp. 13-15).

When he returned to the medical department, McCray was examined and treated by 

Nurse Veena Pritt. (Doc. #1 at 13). McCray complained of pain in his left hand, but Nurse Pritt 

 1 McCray also pleads a claim for medical malpractice against Al-Saeedi. (Doc. #1 at 8). In their 

dispositive motion, Defendants argue that this claim fails because McCray failed to provide a 

Notice of Intent to Sue letter, as required by M.C.L. 600.2912b. (Doc. #18 at 23-24). McCray 

offers no evidence or argument to the contrary. Thus, because McCray failed to comply with the 

statutory requisites before filing his lawsuit, his malpractice claim against Al-Saeedi should be 

dismissed. See Moffat v. Dep’t of Corr., 2014 WL 7215192, at *5 (Mich. App. Dec. 18, 2014) 

(“Failure to comply with statutory requirements of a medical malpractice claim renders the 

complaint insufficient to commence the action.”).

2 McCray actually alleges that the injury occurred January 18. (Doc. #1 at 5). However, the 

Wayne County medical records attached to McCray’s complaint indicate that the injury occurred 

on January 19 (id. at 13), and McCray does not dispute the accuracy of these records.

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found very little swelling and noted that he could move all of his fingers and wrist. (Id.). Based 

upon this initial assessment, Nurse Pritt provided McCray with an ice pack and Tylenol for the 

swelling and pain, and scheduled him to see a physician or nurse practitioner. (Id.).

On January 22, 2014, McCray returned to the Jail medical department, and was treated by 

Al-Saeedi, a nurse practitioner. (Id.; Doc. #18 at Ex. 3, ¶3). Ms. Al-Saeedi’s notes reflect that 

McCray presented with complaints of pain, saying that his hand was tender when he applied 

pressure to it. (Doc. #1 at 13). On examination, Ms. Al-Saeedi noted that McCray had “left 

hand pain upon palpation,” but he was “able to move all fingers and open and close [his] hand.” 

(Id. at 14). She assessed him as having a left hand injury and prescribed ibuprofen for pain. 

(Id.). Al-Saeedi also gave McCray an icepack for swelling and ordered an x-ray of his left hand. 

(Id.). Al-Saeedi is not an x-ray technician and does not conduct the actual x-ray examinations of 

her patients. (Doc. #18 at Ex. 3, ¶10). This was Al-Saeedi’s only encounter with McCray during 

his incarceration at the Wayne County Jail. (Id. at Ex. 3, ¶8).

On February 5, 2014, before McCray’s x-ray could be completed, he was transferred 

from the Wayne County Jail into the custody of the MDOC. Al-Saeedi indicates that she does 

not know why McCray’s hand was not x-rayed before he left the Jail; however, if an inmate 

leaves the Jail with an open order for treatment in the electronic medical records system, the 

system automatically (administratively) closes out the pending order. (Id. at Ex. 3, ¶11). Thus, 

McCray’s medical records indicate that his order for a left hand x-ray was “Stopped by Admin, 

System on 02/05/2014 09:30; Comments: Inmate Released.” (Doc. #1 at 13). An x-ray 

performed once McCray had been transferred to the custody of the MDOC revealed that McCray 

had suffered a fracture of his left hand. (Id. at 36).

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B. Standard of Review

When reviewing cross-motions for summary judgment,3 the court must assess each 

motion on its own merits. See Federal Ins. Co. v. Hartford Steam Boiler Inspection & Ins. Co., 

415 F.3d 487, 493 (6th Cir. 2005). 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 nonmoving party. See Ciminillo v. Streicher, 434 F.3d 461, 464 (6th Cir. 2006).

When the party without the burden of proof (generally the defendant) seeks summary 

judgment, that party 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 

 3 Although Defendants’ motion is styled as a motion to dismiss and for summary judgment, the 

Court notes that, at least with respect to their arguments regarding McCray’s deliberate 

indifference claims, Defendants have relied on supporting documentation, including an affidavit, 

deposition testimony, and medical records. (Doc. #18). Thus, as to these claims, Defendants’ 

motion is properly considered as one for summary judgment, rather than a motion to dismiss, 

which tests the sufficiency of the plaintiff’s complaint. See, e.g., Rhinehart v. Scutt, 2014 WL 

5361936, at *6 (E.D. Mich. June 20, 2014) (citing Kostrzewa v. City of Troy, 247 F.3d 643-44 

(6th Cir. 2001)).

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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 “‘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

1. McCray’s Deliberate Indifference Claim against Al-Saeedi

The Eighth Amendment prohibits the government from inflicting “cruel and unusual 

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punishments” upon incarcerated persons. United States v. Campbell, 245 F. App’x 505, 508 (6th 

Cir. 2007). This prohibition prevents prison officials from “unnecessarily and wantonly 

inflicting pain” on prisoners by acting with “deliberate indifference” to their serious medical 

needs. Blackmore v. Kalamazoo Cty., 390 F.3d 890, 895 (6th Cir. 2004) (quoting Estelle v. 

Gamble, 429 U.S. 97, 104 (1976)). “[D]eliberate indifference to one’s need for medical attention 

suffices for a claim under 42 U.S.C. §1983.” Id. (citing Roberts v. City of Troy, 773 F.2d 720, 

723 (6th Cir. 1985)). Deliberate indifference can arise as a result of delayed treatment, 

Blackmore, 390 F.3d at 899, inadequate treatment, Alspaugh v. McConnell, 643 F.3d 162, 169 

(6th Cir. 2011), or the failure to provide any treatment whatsoever, Rouster v. Cty. of Saginaw,

749 F.3d 437, 448-449 (6th Cir. 2014), for a prisoner’s serious medical need.

The Sixth Circuit has succinctly explained the standards that a plaintiff must satisfy to 

state a claim for deliberate indifference to his serious medical needs:

A claim of deliberate indifference under the Eighth Amendment has both 

an objective and a subjective component. The objective component 

requires the existence of a sufficiently serious medical need. To satisfy 

the subjective component, the defendant must possess a “sufficiently 

culpable state of mind,” rising above negligence or even gross negligence 

and being “tantamount to intent to punish.” Put another way, “[a] prison 

official acts with deliberate indifference if he knows of a substantial risk to 

an inmate’s health, yet recklessly disregards the risk by failing to take 

reasonable measures to abate it.” Mere negligence will not suffice. 

Consequently, allegations of medical malpractice or negligent diagnosis 

and treatment generally fail to state an Eighth Amendment claim of cruel 

and unusual punishment.

Broyles v. Corr. Medical Servs., Inc., 478 F. App’x 971, 975 (6th Cir. 2012) (internal citations 

omitted).

Moreover, 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 

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official actually drew the inference. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). 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). Here, McCray’s own allegations, as well as the record evidence, 

demonstrate that, under these standards, Al-Saeedi was not deliberately indifferent to a serious 

medical need.

In his complaint, McCray alleges that Al-Saeedi was deliberately indifferent in failing to 

x-ray his left hand before he was transferred out of the Wayne County Jail. (Doc. #1 at 6-8). For 

purposes of analyzing the pending motions, the Court will assume that McCray’s fractured left 

hand constitutes an objectively serious medical need. See Farmer, 511 U.S. at 834 (medical 

need must pose a “substantial risk of serious harm”). Regardless, however, McCray has not 

established the subjective element of a deliberate indifference claim, i.e., that Al-Saeedi 

“recklessly disregarded” a “substantial risk to an inmate’s health” by “failing to take reasonable 

measures to abate it.” Broyles, 478 F. App’x at 975 (internal citations omitted). 

There is no dispute that Al-Saeedi treated McCray on only one occasion (January 22, 

2014). (Doc. #18 at Ex. 3, ¶8). Prior to that, McCray had been examined by two nurses, who 

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noted full mobility of the hand and minor-to-little swelling. (Doc. #1 at 13-14). In her affidavit, 

Al-Saeedi indicated that, upon examination, McCray was alert, oriented to person, place time, 

and events, and in no acute distress; there was no redness or bruising; and he had pain in his left 

hand when touched, but he was able to move all of his fingers and open and close his hand. 

(Doc. #18 at Ex. 3, ¶7). Al-Saeedi further affirmed that all of McCray’s symptoms and 

complaints were just as consistent with a sprained muscle or ligament as with a fractured or 

broken bone. (Id.). Therefore, Al-Saeedi diagnosed McCray with a hand injury not otherwise 

specified; prescribed ibuprofen for pain and swelling; provided McCray with an icepack to 

reduce swelling; and ordered an x-ray examination of his left hand. (Id.). Given these facts, 

McCray simply has not established that Al-Saeedi, who ordered – but was not responsible for 

performing – an x-ray, acted with reckless disregard of a substantial risk of serious harm.

Fundamentally, McCray appears to assert that Al-Saeedi was deliberately indifferent in 

failing to ensure that his hand was x-rayed immediately. (Doc. #1 at 5 (“Alsaeedi [sic] could’ve 

immediately that day, conducted An Emergency X-ray of the Hand due to swelling, but she was 

more concerned with being unprofessional.’)). The law in this circuit is clear, however, that 

McCray’s disagreement with Al-Saeedi about the urgency of the x-ray does not rise to the level 

of deliberate indifference. See Umbarger v. Corr. Med. Servs., 93 F. App’x 734, 736 (6th Cir. 

2004) (mere differences of opinion between a prisoner and prison medical staff over the kinds of 

treatment a prisoner needs do not constitute deliberate indifference). Courts distinguish 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.” Alspaugh, 643 F.3d at 169 

(internal quotations omitted). While the former cases may evidence the type of culpability 

required to state a deliberate indifference claim, the latter amount to assertions of medical 

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negligence and do not satisfy the requisite subjective component of such claims. Id. Indeed, 

courts have recognized, “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.” Allison v. Martin, 2009 WL 2885088, at *6 (E.D. Mich. Sept. 2, 2009) (internal 

citations omitted); see also Umbarger, 93 F. App’x at 736. That is exactly the case here, where 

McCray received some medical treatment and simply disagrees with Al-Saeedi’s decision to 

order an x-ray on something other than an immediate basis. See Umbarger, 93 F. App’x at 738. 

For all of these reasons, McCray’s deliberate indifference claim against Al-Saeedi is 

without merit.

2. McCray’s “Monell” Claim against Wayne County

In his complaint, McCray also pleads an Eighth Amendment deliberate indifference claim 

against Wayne County. (Doc. #1 at 7 (“Under this Claim of Deliberate Indifference, the WCJ 

[Wayne County Jail] Administration is responsible also for violation of Plaintiff McCray’s 

Rights under law for harm caused because the WCJ chose to ignore and deny the need for XRays (“Stopped”).”)). The law is clear, however, that a municipality may not be held vicariously 

liable for the actions of its employees under §1983. See Connick v. Thompson, ––– U.S. ––––, 

131 S.Ct. 1350, 1359 (2011); Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). Rather, a 

municipality is liable only when its official policy or custom directly causes the plaintiff’s injury. 

Id. Accordingly, “a plaintiff seeking to impose liability on a municipality under §1983 [must] 

identify a municipal ‘policy’ or ‘custom’ that caused the plaintiff’s injury.” Board of Comm’rs 

of Bryan County v. Brown, 520 U.S. 397, 403 (1997) (citing Monell, 436 U.S. at 694).

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In this case, McCray asserts that Wayne County “canceled” his x-ray because of a 

“commonly used clever tactic,” namely that “it’s widely understood that X-rays are Costly and 

Governments are fixed on Cutting Costs, especially Cutting Health Care Expenses.” (Doc. #1 at 

5-6). However, when asked at his deposition whether he has any evidence that Wayne County 

has a policy of canceling inmates’ x-ray examinations as a cost-saving measure, McCray 

admitted that he does not. (Doc. #18 at Ex. 1, pp. 23, 33). McCray’s vague and unsubstantiated 

assertions that alleged “cost-containment” concerns took precedence over his serious medical 

needs are insufficient to create a genuine issue of material fact as to whether Wayne County had 

a policy or custom that caused him to suffer an injury. See Lowe v. Vadlamudi, 2009 WL 

736798, at *5 (E.D. Mich., Mar. 16, 2009) (“Cost control measures initiated by state and local 

governments by themselves are not unconstitutional. In fact, they are desirable. [The MDOC 

Director’s] knowledge of a policy that encourages cost containment does not translate into 

deliberate indifference to the plaintiff’s medical needs in this case, since there is no suggestion in 

the pleadings that [the Director] was aware of those needs and specifically disregarded them.”); 

Brightwell v. Lehman, 2006 WL 931702, at *8 (W.D. Pa., Apr. 10, 2006) (“Resources are not 

infinite and reasonable allocation of those resources, taking into account cost, does not amount to 

deliberate indifference...”). Moreover, Defendants attached to their motion Wayne County’s 

official policy, which is to provide access to medical care to all inmates. (Doc. 19). 

In sum, where there is no evidence of any custom or policy of Wayne County to refuse to 

provide x-rays, or to otherwise deny inmates’ medical care, summary judgment is appropriate on 

McCray’s Monell claim against Wayne County.

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3. McCray’s Cross-Motion for Summary Judgment

For all of the reasons stated above, summary judgment in McCray’s favor should be 

denied. As set forth above, because McCray is the plaintiff in this case, to prevail on his 

summary judgment motion 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 clearly establishes that summary judgment in favor of Defendants is 

appropriate, it is equally clear that McCray’s motion for summary judgment [22] should be 

denied.

III. CONCLUSION

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

Dismiss and for Summary Judgment [18] be GRANTED, and McCray’s Cross-Motion for 

Summary Judgment [22] be DENIED.

Dated: July 31, 2015 s/David R. Grand 

Ann Arbor, Michigan 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 

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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.

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 July 31, 2015.

s/Eddrey O. Butts 

EDDREY O. BUTTS

Case Manager

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