UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

STANLEY BOYNTON,

Plaintiff,

v.

S. HENDERSON-PERO

Defendant.

_____________________________________/

Case No. 14-13846

Thomas L. Ludington

United States District Judge

Michael Hluchaniuk

United States Magistrate Judge

REPORT AND RECOMMENDATION

MOTION FOR SUMMARY JUDGMENT (Dkt. 11)

I. PROCEDURAL HISTORY

Plaintiff, a prisoner in the custody of the Michigan Department of

Corrections, filed his complaint on October 6, 2014. (Dkt. 1). This matter was

referred to the undersigned for all pretrial proceedings on October 30, 2014. (Dkt.

7). On December 12, 2014, defendant filed a motion for summary judgment. 

(Dkt. 11). Plaintiff filed a response on January 29, 2015. (Dkt. 17). This matter is

now ready for report and recommendation.

For the reasons set forth below, the undersigned RECOMMENDS that

defendants’ motion for summary judgment be GRANTED.

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II. FACTUAL BACKGROUND1

Boynton’s dental records indicate that he was hit with a baseball bat

in 1988 and has suffered left TMJ pain ever since. Dr. Booth, an oral surgeon,

performed an arterioplasty and laminate graft of the left TMJ in 1989. In 1998,

Dr. Booth performed a second surgery, a repositioning osteotomy of the left TMJ.

And in 2005, Dr. Booth advised that there was nothing more surgically that could

be done. Boynton has been on many mechanical soft and pureed diets, which were

discontinued due to Boynton choosing to eat off the regular chow line. Boynton’s

dental records are replete with entries describing a total lack of dental hygiene, a

history of gingivitis and tooth extractions, and on-going requests for pain

medication. Since 2004, Boynton has received and continues to receive dental

treatment from numerous healthcare professionals, including fifteen dentists,

several of whom performed various oral surgeries. Since 2006, MDOC’s Pain

Management Committee (PMC) has recommended the use of Ultram and Tylenol

for any pain associated with his TMJ pain, and Boynton has admitted that he has

used hunger strikes not due to the fact that he has pain, but that he is trying to get

his medications. (Dkt. 11, Ex. D).

In his complaint, Boynton alleges that Dr. Henderson-Pero failed to provide

 This factual summary is largely taken from defendant’s brief in support of her motion 1

for summary judgment and supporting medical records and affidavit. (Dkt. 11-6, Dkt. 12). The

facts regarding plaintiff’s treatment history do not appear to be dispute.

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appropriate medical care to treat his TMJ disorder. Dr. Henderson-Pero denies as

untrue this allegation and provides the following summary of the treatment she

provided:

a. Dr. Henderson-Pero’s earliest contact with Boynton was when she

conducted a focused examination to check his TMJ disorder on

October 8, 2013. During that examination, Boynton informed her that

his oral surgeon, Dr. Sorrow wanted to know whether his current

medications were effective. Dr. Henderson-Pero emailed Dr. Sorrow

the results of her examination that day.

b. On October 15, 2013, Dr. Henderson-Pero consulted with Dr. Sorrow

via email. Dr. Sorrow indicated that he would like to have Boynton’s

Flexeril and Ultram medications and mechanical soft diet extended

for two more weeks. The medications were approved and dispensed

that day and on the following day, a medical detail was issued for the

continuation of the mechanical soft diet.

c. On October 21, 2013, Dr. Henderson-Pero again consulted with Dr.

Sorrow via email. Dr. Sorrow indicated that post-surgery, he would

like to have Boynton’s Ultram medication stopped; continue the

Flexeril; diet changed to a puree for one week; 800 mg of Motrin and

Vicodin.

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d. On October 22, 2013, after his off-site return for oral surgery,

Boynton informed Dr. Henderson-Pero that he was experiencing

post-operative pain. Dr. Henderson-Pero instructed the nursing staff

to dispense Boynton’s pain medication.

e. On October 30, 2013, Dr. Henderson-Pero conducted a post-operative

evaluation. She found no swelling or pain, and Boynton was healing

as expected. Although Boynton requested Ultram pain medication for

his TMJ, Dr. Henderson-Pero informed him that no new pain

medications would be issued as he was still taking Flexeril and

Vicodin. Dr. Henderson-Pero did inform Boynton that she would

followup with his oral surgeon, Dr. Sorrow, to determine whether ny

additional pain medications were necessary.

f. On October 31, 2013, Dr. Sorrow indicated that any additional

follow-up should be done at the Correctional Facility and that no

further TMJ treatment can be done at this time.

g. On November 4, 2013, Nursing informed Dr. Henderson- Pero that

Boynton had refused his Flexeril medication for the last three days.

When Dr. Henderson-Pero spoke with Boynton, he indicated that his

TMJ pain was usually controlled by Ultram and will only take the

Flexeril when Ultram doesn’t work. Dr. Henderson-Pero informed

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Boynton that she would not discontinue his Flexeril, but that his

prescription expires on November 7, 2013. Boynton did ask whether

he should have his TMJ re-evaluated and Dr. Henderson-Pero

reminded Boynton that Dr. Sorrow already indicated that there was

nothing else that could be done at this time.

h. Two days later, on November 6, 2013, Boynton complained of having

TMJ pain which has affected his daily acts. Dr. Henderson-Pero

informed Boynton that she would look into what could be done to

manage his pain.

i. On November 14, 2013, Dr. Henderson-Pero examined Boynton,

found that he has normal range of motion, that there was no pain

when she palpated the joints; that he was able to open his mouth

without pain; but, that when the TMJ clicks, he would wince and

states that he has pain. Dr. Henderson-Pero provided Boynton with a

TMD treatment, Ibuprofen and Tylenol, and informed him that she

was still working on some long term medications.

j. On November 19, 2013, Dr. Henderson-Pero performed a focused

examination to check Boynton for TMJ pain. While Boynton did

complain that it hurt to eat from the regular chow hall line, he refused

her suggestion that he switch to a pureed diet because “they put

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everything in the blender, not just the hard food.” Dr. Henderson-Pero

increased the dosage of Boynton’s medication and informed him that

she would reevaluate him in the upcoming days.

k. On November 26, 2013, Dr. Henderson-Pero consulted with Health

Unit Manager McCauley regarding Boynton’s then current hunger

strike, in which he admitted that it was an attempt to “strong arm the

dentist into having surgery.” Boynton was again offered a pureed diet

and encouraged to drink liquids as neither of these should cause pain.

l. On December 3, 2013, Dr. Henderson-Pero informed Boynton that

another oral surgeon, Dr. Downs, had agreed to treat his TMJ pain

and that she would submit the necessary paperwork. Dr.

Henderson-Pero again offered Boynton a pureed diet, but he refused,

stating “it tastes bad the way they do it here.”

m. On December 4, 2013, Dr. Henderson-Pero informed Boynton that he

had been approved to go off-site to see Dr. Downs and again urged

him to start a pureed diet so he would be strong enough to have his

procedure with Dr. Downs. Boynton still refused, stating that he hated

the taste.

n. In a December 12, 2013 healthcare request, Boynton asked to have

his medication changed to tramadol, but Dr. Henderson-Pero

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informed him that we would have to wait for instructions from the

oral surgeon. Dr. Henderson-Pero also informed Boynton that if he

was experiencing pain while eating a mechanical soft diet, and in

light of his repeated refusals to try a pureed diet, she could offer him

a liquid diet. Boynton was instructed to contact Dr. Henderson-Pero

regarding the liquid diet, but never did.

o. On December 18, 2013, Boynton had his off-site appointment with

Dr. Downs.

p. On December 19, 2013, Dr. Henderson-Pero conducted a

post-operative evaluation following Boynton’s off-site visit in which

he received an intra-articular injection of the left TMJ. Dr. Downs

did indicate that if Boynton still complains of pain, that he is drug

seeking as his pain should be gone from the injection. Dr. Downs also

indicated that ibuprofen should be all Boynton needs if he complains

of any pain within the next six months. Finally, Dr. Downs suggested

the fabrication of upper and lower dentures in an attempt to establish

proper vertical dimension of occlusion, which may help Boynton’s

TMJ condition.

q. On December 19, 2013, Boynton did complain of pain and indicated

that that he was only able to eat about half of a meatball sandwich due

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to the pain. However, nursing reports indicate that Boynton actually

ate two meatball sandwiches and noodles for dinner, as well as a

breakfast tray in healthcare while awaiting his appointment. Dr.

Henderson-Pero informed Boynton that she was ordering a full liquid

diet, but warned him that it would be discontinued if he was observed

eating off of the regular chow hall line. Boynton then requested an

off-site evaluation by Dr. Booth in hopes of receiving another TMJ

surgery. Dr. Henderson-Pero advised Boynton that Dr. Downs had

indicated that another surgery is not an option at this time.

r. On January 21, 2014, Dr. Henderson-Pero conducted a focused exam

to determine whether Boynton still needed a liquid diet. Boynton

admitted that he was still eating from the regular chow hall line but

would stop when he experienced pain. Dr. Henderson-Pero reminded

him that per Dr. Downs, he shouldn’t be experiencing any pain for at

least six months from his December injection and to send in a request

for an evaluation should he have pain in the future. Boynton refused

Motrin at this exam.

s. At the time of this exam, Dr. Henderson-Pero also determined that the

tissues surrounding Boynton’s last dental extraction procedure had

sufficiently healed to the point that he could now begin the process

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for the dentures suggested by Dr. Downs. Through the course of four

additional appointments in March, May, June and August 2014,

impressions were made and Boynton was fitted with dentures. 

During this time, Boynton never indicated that he was experiencing

any discomfort as a result of his TMJ condition.

t. The last time Dr. Henderson-Pero saw Boynton for symptoms related

to TMJ was on August 14, 2014. She provided him with treatment

and made an off-site request for a second intra-articular injection. On

August 19, 2014, Boynton was transferred to another Correctional

Facility after being found guilty of possessing a weapon.

(Dkt. 11-5; Affidavit of Shary Henderson-Pero, DDS; Dkt. 12, Plaintiff’s Medical

Records).

III. ANALYSIS AND CONCLUSIONS

A. Standard of Review

Summary judgment is appropriate when the record reveals that there are no

genuine issues as to any material fact in dispute and the moving party is entitled to

judgment as a matter of law. Fed.R.Civ.P. 56(c); Kocak v. Community Health

Partners of Ohio, Inc., 400 F.3d 466, 468 (6th Cir. 2005); Thomas v. City of

Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005). The standard for determining

whether summary judgment is appropriate is “whether the evidence presents a

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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.” State Farm Fire & Cas.

Co. v. McGowan, 421 F.3d 433, 436 (6th Cir. 2005), quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 251-52 (1986); see also Tucker v. Union of

Needletrades Indus. & Textile Employees, 407 F.3d 784, 787 (6th Cir. 2005). The

court must consider all pleadings, depositions, affidavits, and admissions on file,

and draw all justifiable inferences in favor of the party opposing the motion. See

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

Twin City Fire Ins. Co. v. Adkins, 400 F.3d 293, 296 (6th Cir. 2005).

Under Federal Rule of Civil Procedure 56, a party asserting a fact that

cannot be or is not genuinely disputed must support that assertion by citing to

particular parts of materials in the record, including depositions, documents,

electronically stored information, affidavits or declaration, stipulations, admission,

interrogatory answers, or other materials; or a showing that the materials cited do

not establish the absence or presence of a genuine dispute or that an adverse party

cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1).

2

 Formerly, “Rule 56(e) require[d] that sworn or certified copies of all papers referred to 2

in an affidavit must be attached to or served with that affidavit ... To be admissible, documents

must be authenticated by and attached to an affidavit that meets the requirements of Rule 56(e)

and the affiant must be a person through whom the exhibits could be admitted into evidence.”

Johnson v. Memphis City Schools, 2010 WL 1957267, *2 (W.D. Tenn. 2010), quoting, 10A

Charles A. Wright, Arthur R. Miller and Mary Kay Kane, Federal Practice & Procedure, § 2722,

at 379-80 & 382-84 (1988). According to the Advisory Comments to the recent amendments, this

specific requirement was omitted as unnecessary given the requirement in subdivision (c)(1)(A)

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B. Deliberate Indifference

In the context of medical care, a prisoner’s Eighth Amendment right to be

free from cruel and unusual punishment is violated only when the prisoner can

demonstrate a “deliberate indifference” to his serious medical needs. Estelle v.

Gamble, 429 U.S. 97, 104-06 (1976). “Where a prisoner has received some

medical attention and the dispute is over the adequacy of treatment, federal courts

are generally reluctant to second guess medical judgments and to constitutionalize

claims that sound in state tort law.” Westlake v. Lucas, 537 F.2d 857, 860 n. 5

(6th Cir. 1976) (citations omitted). Moreover, mere negligence in identifying or

treating a medical need does not rise to the level of a valid mistreatment claim

under the Eighth Amendment. Estelle, 429 U.S. at 106.

A viable Eighth Amendment claim has two components, one objective and

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

McCrary, 273 F.3d 693, 702 (6th Cir. 2002). A court considering a prisoner’s

Eighth Amendment claim must ask both if the alleged wrongdoing was objectively

harmful enough to establish a constitutional violation and if the officials acted

with a sufficiently culpable state of mind. Hudson v. McMillian, 503 U.S. 1, 8

that a statement or dispute of fact be supported by materials in the record. Comments, 2010

Amendments to Fed.R.Civ.P. 56, subdivision (c). Notably, the language changes have not

changed the standard itself. Id. (“The standard for granting summary judgment remains

unchanged.”). 

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(1992).

Under the objective component, “the plaintiff must allege that the medical

need at issue is ‘sufficiently serious.’” Farmer, 511 U.S. at 834. Courts recognize

that “[b]ecause routine discomfort is part of the penalty that criminal offenders pay

for their offenses against society, only those deprivations denying the minimal

civilized measure of life’s necessities are sufficiently grave to form the basis of an

Eighth Amendment violation.” Hudson, 503 U.S. at 8 (internal citations and

quotation marks omitted). Similarly, “[b]ecause society does not expect that

prisoners will have unqualified access to health care, deliberate indifference to

medical needs amounts to an Eighth Amendment violation only if those needs are

‘serious.’” Id. at 9. 

The subjective component requires that the defendant act with deliberate

indifference to an inmate’s health or safety. Farmer, 511 U.S. at 834. To

establish 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 the risk.” Id. at 837. In other words, this prong is satisfied

when a prison official acts with criminal recklessness, i.e., when he or she

“consciously disregard[s] a substantial risk of serious harm.” Brooks v. Celeste,

39 F.3d 125, 128 (6th Cir. 1994) (citing Farmer, 511 U.S. at 839-40). “Basically,

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there must be a knowing failure or refusal to provide urgently needed medical care

which causes a residual injury that could have been prevented with timely

attention.” Lewis v. Corr. Med. Servs., 2009 WL 799249, at *2 (E.D. Mich. Mar.

24, 2009).

Regarding plaintiff’s claim against a defendant who provided medical care,

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 treatment decisions made by the medical

staff, the plaintiff fails to state a claim under the Eighth Amendment. See

McFarland v. Austin, 196 Fed. Appx. 410, 411 (6th Cir. 2006) (“as the record

reveals that McFarland has received some medical attention and McFarland’s

claims involve a mere difference of opinion between him and medical personnel

regarding his treatment, McFarland does not state a claim under the Eighth

Amendment”); White v. Corr. Med. Servs., Inc., 94 Fed. Appx. 262, 264 (6th Cir.

2004) (affirming dismissal of the complaint for failure to state a claim where the

essence of plaintiff’s claims was that he disagreed with the defendants’ approaches

to his medical treatment where defendant discontinued plaintiff’s previous course

of treatment and prescribed what plaintiff considered to be less effective

treatment); Catanzaro v. Michigan Dep’t of Corr., 2010 WL 1657872, at *3 (E.D.

Mich. 2010) (plaintiff failed to state a claim of deliberate indifference when “he

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specifically alleges that he was given medications that proved ineffective to

relieve his symptoms, rather than medications that he believed were more

effective, such as Drixoral, Sudafed and Deconamine”), adopted by 2010 WL

1657690 (E.D. Mich. 2010); Allison v. Martin, 2009 WL 2885088, at *7 (E.D.

Mich. 2009) (plaintiff failed to state a claim of deliberate indifference in violation

of the Eighth Amendment when the complaint reveals plaintiff was seen over a

dozen times for his eczema and was given medication, though not the “type” and

quantity he requested).

Defendant’s brief assumes, for purposes of the motion for summary

judgment, that plaintiff’s TMJ disorder is a serious medical condition and thus

primarily maintains that plaintiff has failed to satisfy the subjective component of

the deliberate indifference test. That is, even if plaintiff can satisfy the objective

prong of the deliberate indifference test, the second element of Wilson requires a

showing that defendants acted with deliberate indifference, which plaintiff has not

done. “Deliberate indifference” has been variously defined by the federal courts

that have considered prisoners’ Eighth Amendment claims, but all agree that it is

more than mere negligence and less than actual intent in the form of “malicious”

or “sadistic” action. Farmer v. Brennan, 511 U.S. 825, 861 (1994); see also

Estelle, 429 U.S. at 105-06 (a complaint that a physician has been negligent in

diagnosing or treating a medical condition does not state a valid claim under the

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Eighth Amendment; “medical malpractice does not become a constitutional

violation merely because the victim is a prisoner”); Sanderfer v. Nichols, 62 F.3d

151, 154 (6th Cir. 1995) (deliberate indifference is the equivalent of “criminal

recklessness, which requires a subjective showing that the defendant was aware of

the risk of harm”); Gibson v. Foltz, 963 F.2d 851, 853 (6th Cir. 1992) (“Obduracy

or wantonness, not inadvertence or good faith error, characterizes deliberate

indifference.”). As noted in Estelle, “[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.” Id. at 106. An allegation of mere

negligence in diagnosis or treatment is not actionable under § 1983. Estelle v.

Gamble, supra; Byrd v. Wilson, 701 F.2d at 595 n. 2. A delay in access to medical

attention, however, can violate the Eighth Amendment when it is “tantamount to

‘unnecessary and wanton infliction of pain.’” Hill v. DeKalb Reg’l Youth Det.

Ctr., 40 F.3d 1176, 1187 (6th Cir. 1994), quoting Brown v. Hughes, 894 F.2d

1533, 1537 (11th Cir. 1990) (per curiam). Further, a claim of inadequate medical

treatment may state a constitutional claim if the treatment rendered is “so woefully

inadequate as to amount to no treatment at all.” Westlake v. Lucas, 537 F.2d 857,

860-61 (6th Cir. 1976). “A defendant must purposefully ignore or fail to respond

to a prisoner’s pain or possible medical need in order for deliberate indifference to

be established.” McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 1992). The

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deliberate indifference standard requires knowledge of the particular medical

condition in order to establish an intent (“a sufficiently culpable state of mind,”

Wilson, 501 U.S. at 298) to deny or to delay purposely “access to medical care” or

intentionally to interfere “with the treatment once prescribed.” Estelle, 429 U.S. at

104-05. Thus, “[k]nowledge of the asserted serious needs or of circumstances

clearly indicating the existence of such needs, is essential to a finding of deliberate

indifference.” Horn ex rel. Parks v. Madison Cnty. Fiscal Court, 22 F.3d 653, 660

(6th Cir. 1994).

Plaintiff claims that defendant was deliberately indifferent because she

refused to refer him to an off-site specialist who could get to the root of his

medical problem and fix it. According to plaintiff, defendant essentially barred his

access to a physician who was capable of evaluating his need for treatment. In

addition, plaintiff argues that the “total disregard” for his well-being should be

sufficient to demonstrate deliberate indifference. He was seen in health care on

many occasions and defendant was advised of his severe condition and pain. 

According to plaintiff, he received no “real” treatment. In the view of the

undersigned, these facts merely present a difference of medical opinion, which

does not generally fall within the scope of an Eighth Amendment claim. See

Thomas v. Coble, 55 Fed. Appx. 748, 749 (6th Cir. 2003) (“[Plaintiff] and Dr.

Coble clearly disagreed over the preferred medication to treat at [Plaintiff’s] pain. 

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However, this difference of opinion does not support an Eighth Amendment

claim.”); see also Cuco v. Fed. Med. Center-Lexington, 2006 WL 1635668, *33

(E.D. Ky. 2006) (The fact that the plaintiff’s personal physician believed that the

treatment chosen by prison medical personnel was not an effective treatment

regimen does not matter. That is, even where a plaintiff’s private physician

recommends a course of treatment for the plaintiff’s condition, a prison doctor’s

use of a different treatment regimen does not amount to deliberate indifference.). 

In the view of the undersigned, defendant exercised her professional medical

judgment in determining how and when to treat plaintiff and thus, was not

deliberately indifferent to plaintiff’s TMJ disorder and related pain. 

D. Defendant’s Remaining Defenses

Defendant also moved for summary judgment on the issues of failure to

exhaust, Eleventh Amendment immunity for any claim against her in her official

capacity, and qualified immunity. Given the foregoing conclusions regarding the

merit’s of plaintiff’s Eighth Amendment claim, these matters need not be

addressed. 

IV. RECOMMENDATION

For the reasons set forth above, the undersigned RECOMMENDS that

defendants’ motion for summary judgment be GRANTED.

The parties to this action may object to and seek review of this Report and

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Recommendation, but are required to file any objections within 14 days of service,

as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule

72.1(d). Failure to file specific objections constitutes a waiver of any further right

of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec’y of Health and

Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that raise some

issues but fail to raise others with specificity will not preserve all the objections a

party might have to this Report and Recommendation. Willis v. Sec’y of Health

and 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 Local Rule

72.1(d)(2), any objections must be served on this Magistrate Judge.

Any objections must be labeled as “Objection No. 1,” “Objection No. 2,”

etc. Any objection must recite precisely the provision of this Report and

Recommendation to which it pertains. Not later than 14 days after service of an

objection, the opposing party may file a concise response proportionate to the

objections in length and complexity. Fed.R.Civ.P. 72(b)(2), Local Rule 72.1(d). 

The response must specifically address each issue raised in the objections, in the

same order, and labeled as “Response to Objection No. 1,” “Response to Objection

No. 2,” etc. If the Court determines that any objections are without merit, it may

rule without awaiting the response.

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Date: August 6, 2015 s/Michael Hluchaniuk

Michael Hluchaniuk

United States Magistrate Judge

CERTIFICATE OF SERVICE

I certify that on August 6, 2015, I electronically filed the foregoing paper

with the Clerk of the Court using the ECF system, which will send electronic

notification to all counsel of record and that I have mailed by U.S. Postal Service

to the following non-ECF participant: Stanley Boynton #179482, *Woodland

Center Correctional Facility, 9036 E. M-36, Whitmore Lake, MI 48189 (*address

pursuant to MDOC-OTIS) and at Carson City Correctional Facility, 10274 Boyer

Road, Carson City, MI 48811 (address listed on the docket).

s/Tammy Hallwood

Case Manager

(810) 341-7887

tammy_hallwood@mied.uscourts.gov

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