UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JOSEPH R. WATSON,

Plaintiff,

v.

WILLOW ENTERPRISES, INC., d/b/a

PORT HURON HOSPITAL INDUSTRIAL

HEALTH, et al,

Defendants.

_____________________________________/

Case No. 14-14124

Denise Page Hood

United States District Judge

Stephanie Dawkins Davis

United States Magistrate Judge

REPORT AND RECOMMENDATION

MOTION FOR SUMMARY JUDGMENT (Dkt. 30)

I. PROCEDURAL HISTORY

Plaintiff filed this prisoner civil rights action on October 27, 2014. (Dkt. 1).

District Court Judge Denise Page Hood referred this matter to the undersigned for

all pretrial purposes on March 28, 2016. (Dkt. 31). The motion for summary

judgment was filed on March 17, 2016 by Willow Enterprises, Sarah Kading, and

Brandi Schieman. (Dkt. 30). Plaintiff filed a response on April 7, 2016. (Dkt.

32). The parties filed their joint statement of resolved and unresolved issues on

August 9, 2016. (Dkt. 36). A hearing was held on November 3, 2016, pursuant to

notice. (Dkt. 38). This matter is now ready for report and recommendation. 

For the reasons set forth below, the undersigned RECOMMENDS that

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defendants’ motion for summary judgment be GRANTED.

II. FACTUAL BACKGROUND

This case involves a single count complaint alleging an Eighth Amendment

claim based on Willow Enterprises, Inc., d/b/a Port Huron Hospital Industrial

Health’s employees, Sarah Kading, L.P.N. and Brandi Schieman, L.P.N.’s alleged

failure to provide plaintiff’s medications to him, while he was incarcerated in the

St. Clair County Jail (“SCCJ”), related to a parole violation, from July 23-28,

2012. Willow Enterprises provided nursing staff to the St. Clair County Jail, via

contract with St. Clair County, in 2012. Plaintiff alleges that Kading and

Schieman failed to provide him with his medications, each night, from July 23-27,

2012. Plaintiff was incarcerated at the St. Clair County Jail, on July 23, 2012, for

a period of 20 days, for a probation violation. (Dkt. 30, Ex. B, St. Clair County

Jail Inmate Record). At the time of his incarceration, plaintiff filled out a Medical

Screening Form. (Dkt. 30, Ex. C, St. Clair County Jail Medical Screening Form). 

The Medical Screening Form indicated that plaintiff “states heart disease and high

blood pressure - takes 12 different medications - see hand written med list attached

to his medical sheet/booking folder.” Id. However, defendants point out that

there was no suggestion on the medical screening form, that plaintiff had any

active cardiac symptoms, when he was admitted to the St. Clair County Jail. Id.

At his deposition, plaintiff testified that he provided the handwritten list of

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his medications, on his incarceration. (Dkt. 30, Ex. D, pp. 25-26; Ex. E -

Handwritten List of Joe’s Meds). He also testified that he made numerous

requests for his medications while incarcerated. Plaintiff claims that he asked the

nurse working med pass about his medications the first night, and she responded

she would look into it. (Dkt. 32, Ex. 2, p. 15). The second night, he again waited

in line at med pass and was told by a different nurse that there were no

medications for him. Id. at pp. 16-17. He told her and the officer next to her that

he needed to have his medication. Id. On the third night, the nurse working med

pass was the same nurse who was working med pass the first night. Id. at 17. 

Plaintiff again asked for his medications and was again told that there were no

medications for him. Plaintiff again stated that he needed his medications, to

which the nurse did not respond. Id. at pp. 17-18. By this time, plaintiff testified

that he was getting “panicky” about his medications. Id. at p. 18. On the fourth

night, plaintiff received four medications. According to plaintiff, none of them

were for his blood pressure or his heart. Id. at p. 23; Dkt. 32, Ex. 13. He was

given Lasix, Allopurinol, Zantac, and Paxil. (Dkt. 32, Ex. 13). Lasix is a diuretic,

Allopurinol is for gout, Zantac is for acid reflux, and Paxil is an antidepressant. 

(Dkt. 32, Ex. 6, pp. 52, 62, 63). On the fifth night, he received the same four

medications. He again stated to the nurse on duty that he had a “heart

problem”and needed his medications. (Dkt. 32, Exhibit 2, pp. 70-71). The nurse

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working med pass again stated that she would look into it. Id. at p. 71. Schieman

was working med pass on the fourth and fifth nights. (Dkt. 32, Ex. 13; Ex. 14, pp.

27, 11).

Kading and Schieman testified that they could not provide medications to an

inmate, based solely on a handwritten list. (Dkt. 30, Ex. F, pp. 12-13, 32, 35, 49;

Ex. G, pp. 23-25, 34-35). Rather, they could only provide medications, if verified

by an active prescription with a pharmacy or by an active prescription bottle. 

(Dkt. 30, Ex. F, pp. 12-13, 32, 35, 49, 52, 54, 60-64, 66-67; Dkt. 30, Ex. G, pp.

7-8, 13, 22-29, 34-35, 37-39). If they could not verify a given prescription as

being active, they could not provide that medication. (Dkt. 30, Ex. F, pp. 12-13,

32, 35, 49; Ex. G, pp. 23-25, 34-35). According to plaintiff, if inmates used

multiple pharmacies, Willow employees still only contacted the last pharmacy that

the inmate used. (Dkt. 32, Ex. 6, p. 12). Kading and Schieman both testified that

they determined the last pharmacy used by asking the inmate. (Dkt. 32, Ex. 6, p.

49; Ex. 14, p. 7). They also explained that if an inmate had a concern regarding

the need for a medication, the inmate could fill out a Medical Request Form,

asking to be seen by the physician. (Dkt. 30, Ex. F, pp. 53-54; Ex. G, pp. 25-26,

39; Exhibit H, St. Clair County Medical Request Form). 

One of the physicians contracted by St. Clair County, Reid Stromberg, D.O.

was at the St. Clair County Jail on July 24, 2012. (Dkt. 30, Ex. I - St. Clair County

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Intervention Center Physician’s Orders). Dr. Stromberg signed the Physician’s

Orders regarding plaintiff’s prescriptions for Lasix, Allopurinol, Zantac and Paxil,

on July 12, 2012. Those medications were then provided to plaintiff. (Dkt. 30,

Ex. J, St. Clair County Intervention Center Medication Administration Record). 

While plaintiff was incarcerated, he received treatment at “The People’s Clinic”

because he did not have insurance. (Dkt. 32, Ex. 2, pp. 83-84). St. Joseph Mercy

Hospital is a co-sponsor of The People’s Clinic. (Dkt. 32, Ex. 17). Records from

The People’s Clinic verify that, at the time of his incarceration, plaintiff was

taking all of the medications on the list that he provided. (Dkt. 32, Ex. 17(A)). If

there is a current, active prescription for medications provided to an inmate,

Willow employees do not need any approval to provide those medications to that

inmate. (Dkt. 32, Ex. 6, p. 56). Plaintiff testified that nobody asked him where he

got his prescriptions filled while he was at SCCJ. (Dkt. 32, Ex. 2, pp. 104, 143).

The medical screening form for each inmate is provided to Willow

employees the same day that the inmate arrives at SCCJ. (Dkt. 32, Ex. 6, p. 29;

Ex. 14, p. 22). Willow employees receive the medical screening form and prepare

the medical administration record and the physician’s orders for medications

immediately afterward. (Dkt. 32, Ex. 6, pp. 46-47). Kading testified that she

made contact with inmates based on what is in their medical screening form if she

had questions for them. (Dkt. 32, Ex. 6, p. 32). She testified that she could

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“always”make a call to where the inmate was housed and have the deputy there

ask inmates any questions she might have. Id. at pp. 49-50. She does not recall

having done so in Plaintiff’s instance. Id. at p. 50. Kading testified that, if “heart

disease” was circled on an inmate’s medical screening form, she would order

medications within the first 24 hours of that inmate arriving at SCCJ. Id. at pp.

30-31. She further testified that she would “make sure” that in this instance, the

inmate has their medications. Id. Although she agreed that “heart disease” is a

general term, Kading does not ask any further questions regarding this unless the

inmate is symptomatic. Id. at pp. 33-34. 

Schieman testified that she would review the information taken during

booking and speak with the inmate. (Dkt. 32, Ex. 14, p. 22). Plaintiff testified

that he was “100 percent sure” that nobody spoke to him about his medical issues. 

(Dkt. 32, Ex. 2, p. 143). Kading testified that if plaintiff had been in line for med

pass and she did not have his medications, she would write down any issues and

“look into it further.” (Dkt. 32, Ex. 6, p. 38). Looking into it further, according to

Kading, meant that she pulled the inmate’s chart to see if the medications had been

ordered, or whether she needed to call to verify the medications, which she would

do if that was what was necessary. Id. at p. 38. She testified that she only advised

inmates why there were no medications for them if she saw them again on the

same day. Id. at p. 38. 

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If an inmate completed a medical request to see a physician, it would be in

the inmate’s medical file. Id. at Ex. 6, p. 31. Kading testified that she could not

recall whether she gave plaintiff a medical request form. Id. at pp. 53-54. 

However, if a Willow employee instructed an inmate that they should see a

physician, that information would “not always”be in the inmate’s file. Id. 

Schieman testified that “anything pertaining to anything that was going on with

the inmate that needed to be documented would be documented.” (Dkt. 32, Ex.

14, p. 17). She first testified that notes did not only encompass emergencies, and

then testified that she only documented emergency situations. Id. at pp. 17-18. 

She then testified again that nurse’s notes are “anything that goes on with a patient

or inmate that needs to be addressed by the doctor. Id. at p. 21.

Plaintiff points out that there is no medical request form in his file, nor is

there any notation indicating that he was complaining about not receiving his

medications or that he was asked to fill out a medical request form. (Dkt. 32, Ex.

19). Plaintiff testified that he never completed a request to see a doctor and that he

did not know the procedure to do so. (Dkt. 32, Ex. 2, pp. 106, 117). He testified

that each time he spoke with the nurses, they only responded that they would look

into the issue. Id. at p. 81. Jail physicians were available to Willow employees

via a pager system. Kading testified that they responded to Willow employees at

SCCJ within thirty minutes. (Dkt. 32, Ex. 6, pp. 15-16). Schieman testified that

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the physicians were available to them “24/7,”and that she spoke to them “daily”

when she worked. (Dkt. 32, Ex. 14, pp. 12-13). 

On the morning of July 28, 2012, roughly two weeks into his stay at the jail, 

plaintiff suffered a myocardial infarction. (Dkt. 30, Ex. K, St. Clair County Jail

Incident Report, dated 7/28/12). At that time, Kading was called by the Sheriff’s

Deputy, to attend to plaintiff. Id. Kading evaluated plaintiff, gave him Nitro and

monitored his condition, until EMS arrived. (Dkt. 30, Ex. L). Plaintiff was taken

to Port Huron Hospital, where he underwent treatment for the myocardial

infarction. He was treated in the ER by Dr. Elias Skaf. (Dkt. 32, Ex. 2, p 75; Ex.

15). Dr. Skaf dictated a progress note the following day making a plan for

plaintiff, which included both smoking cessation and the continuation of his

medical treatment. (Dkt. 32, Ex. 16). Dr. Skaf prepared a letter for plaintiff’s

medical records regarding plaintiff’s treatment as well, stating that the heart attack

was “related to multiple reasons including the lack of medications and significant

history of smoking.” (Dkt. 32, Ex. 15). Dr. Skaf’s letter concludes that, while it

was difficult to know the exact reason for Plaintiff’s heart attack, it was

“multifactorial and related to multiple issues ... including medications

compliance, smoking, diet, and lack of exercise.” (Dkt. 32, Ex. 15). He was

discharged from Port Huron Hospital on July 31, 2012, without any significant

complications, according to defendants. (Dkt. 30, Ex. M - Port Huron Hospital

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Discharge Summary dated 7/31/12). 

III. ANALYSIS AND CONCLUSIONS

A. Legal Standards

1. Summary Judgment

When a party files a motion for summary judgment, it must be granted “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). “A party

asserting that a fact cannot be or is genuinely disputed must support the assertion

by: (A) citing to particular parts of materials in the record...; or (B) 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). The standard for determining whether summary judgment

is appropriate is “whether the evidence presents a sufficient disagreement to

require submission to a jury or whether it is so one-sided that one party must

prevail as a matter of law.” 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). Furthermore, the evidence and all reasonable inferences must be

construed in the light most favorable to the non-moving party. Matsushita Elec.

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

Where the movant establishes the lack of a genuine issue of material fact,

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the burden of demonstrating the existence of such an issue shifts to the

non-moving party to come forward with “specific facts showing that there is a

genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). 

That is, the party opposing a motion for summary judgment must make an

affirmative showing with proper evidence and must “designate specific facts in

affidavits, depositions, or other factual material showing ‘evidence on which the

jury could reasonably find for the plaintiff.’” Brown v. Scott, 329 F.Supp.2d 905,

910 (6th Cir. 2004).

To fulfill this burden, the non-moving party need only demonstrate the

minimal standard that a jury could ostensibly find in his favor. Anderson, 477

U.S. at 248; McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000).

However, mere allegations or denials in the non-movant’s pleadings will not

satisfy this burden, nor will a mere scintilla of evidence supporting the

non-moving party. Anderson, 477 U.S. at 248, 251. 

The Court’s role is limited to determining whether there is a genuine dispute

about a material fact, that is, if the evidence in the case “is such that a reasonable

jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.

Such a determination requires that the Court “view the evidence presented through

the prism of the substantive evidentiary burden” applicable to the case. Id. at 254.

Thus, if the plaintiff must ultimately prove its case at trial by a preponderance of

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the evidence, on a motion for summary judgment the Court must determine

whether a jury could reasonably find that the plaintiff’s factual contentions are true

by a preponderance of the evidence. See id. at 252-53. Finally, if the nonmoving

party fails to make a sufficient showing on an essential element of its case with

respect to which it has the burden of proof, the movant is entitled to summary

judgment. Celotex, 477 U.S. at 323. The Court must construe Rule 56 with due

regard not only for the rights of those “asserting claims and defenses that are

adequately based in fact to have those claims and defenses tried to a jury,” but also

for the rights of those “opposing such claims and defenses to demonstrate in the

manner provided by the Rule, prior to trial, that the claims and defenses have no

factual basis.” Id. at 327.

2. Eighth Amendment

The Supreme Court has recognized the responsibility of the courts “to

scrutinize claims of cruel and unusual confinement.” Rhodes v. Chapman, 452

U.S. 337, 352 (1981). The Court has recognized the deliberate indifference to a

prisoner’s serious medical needs as one type of conduct that violates the Eighth

Amendment is a prison official’s. See e.g., Estelle v. Gamble, 429 U.S. 97 (1976);

Westlake v. Lucas, 537 F.2d 857, 860 (6th Cir. 1976). To succeed on a claim of

deliberate indifference, a plaintiff must satisfy two elements, one objective and the

other subjective. He must show that he had a serious medical need and he must

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show that defendants, while aware of that need, acted with deliberate indifference

to it. Wilson v. Seiter, 501 U.S. 294, 300 (1991).

The second element of Wilson, “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 a “malicious” or “sadistic” action. Farmer v. Brennan, 511 U.S.

825, 861 (1994); see also Estelle, 429 U.S. at 105-106 (a complaint that a

physician has been negligent in diagnosing or treating a medical condition does

not state a valid claim under the Eighth Amendment; “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. In Whitley v. Albers, 475 U.S. 312 (1986), the Court

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held that “[i]t is obduracy and wantonness, not inadvertence or error in good faith”

that violates the Eighth Amendment in “supplying medical needs.” “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 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.), cert. denied, 513 U.S.

873 (1994).

B. Verification of Prescriptions

1. Parties’ Arguments

In this case, defendants assert that plaintiff has failed to create a genuine

issue of material fact as it relates to the subjective “deliberate indifference”

element of an Eighth Amendment claim. Plaintiff has admitted that the nurses

who provided him with medications were professional during their interactions

with him. (Dkt. 30, Ex. D, pp. 15-20, 22-26, 69-72). Plaintiff testified that the

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nurses were responsive to his requests for information regarding his medications.

(Dkt. 30, Ex. D, pp. 15, 16, 17-20, 23-24, 69-71). When medications were not

provided, the nurses told him that they would look into the issue. (Dkt. 30, Ex. D,

pp. 15, 17-20, 71). Nurse Kading and Nurse Schieman have testified that they

could only fill prescriptions, which could be verified by an active prescription or

by an active prescription bottle. (Dkt. 30, Ex. F, pp. 12-13, 32, 35, 49, 52, 54,

60-64, 66-67; Ex. G, pp. 7-8, 13, 22-29, 34-35, 37-39). According to defendants,

it is undisputed that Kading and Schieman took steps to identify plaintiff’s active

medications, since his prescriptions for Lasix, Allopurinol, Zantac and Paxil were

verified, ordered by Dr. Stromberg and were provided. (Dkt. 30, Ex. I; Ex. J) .

Defendants maintain that plaintiff could have been seen by a physician,

concerning his medication issue, if he had made such a request. (Dkt. 30, Ex. F,

pp. 53-54; Ex. G, pp. 25-26, 29; Ex. H). Dr. Stromberg was at the St. Clair County

Jail on July 24, 2012 and signed the orders for plaintiff’s active prescriptions that

could be verified. (Dkt. 30, Ex. I). Those medications were then provided to

plaintiff. (Dkt. 30, Ex. J). Plaintiff has failed to show that Kading and Schieman

acted with “deliberate indifference” and with a “sufficiently culpable state of

mind” with regard to plaintiff’s medications, as (1) the defendant nurses took steps

to verify plaintiff’s active medications; (2) identified the known active

medications; and (3) provided the information resulting in Dr. Stromberg signing

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the orders to provide these medications. Defendants insist that there has been no

showing that Kading and Schieman acted with conscious disregard, in attempting

to verify plaintiff’s known active medications, having a physician order the

medications and provide the medications to plaintiff. 

According to plaintiff, the facts show that he advised at least four

individuals of his heart problem and his medications, Kading and Schieman being

two of those four. Each night that plaintiff was denied the medications related to

his heart condition, he advised the nurse working med pass that he needed his

medication. On the fourth and fifth nights, he reiterated that he had a heart

problem. From plaintiff’s testimony, the medical administration chart, and the

notes from the date that plaintiff suffered his heart attack, Kading would have

been working med pass on the first and third nights of his incarceration. Schieman

would have been working on the second, fourth, and fifth nights. Kading also

would have had knowledge of plaintiff’s conditions and medications because she

would have received his medical screening form the day that he arrived at the jail.

If she had questions, she could have made a call to where plaintiff was housed, but

she does not recall having done so with regard to plaintiff, and plaintiff is “100%”

sure that nobody spoke to him about his medical condition. 

According to plaintiff, although Kading testified that the four medications

dispensed to plaintiff were the only four that were verified by the pharmacy that

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she contacted, the records from The People’s Clinic verify that plaintiff was taking

all of the medications on his list at the time of his incarceration. While Kading

and Schieman both testified about what they would have done in the event that a

medication list was not fully verified by a pharmacy or in the event that an inmate

complained about not receiving his medication, plaintiff says that neither offered

any testimony with regard to what they did in plaintiff’s instance. Further,

plaintiff testified that nobody asked him where he got his medication filled and no

one ever informed him of the procedure to request an examination by a physician. 

Schieman testified that she would have provided the medical request form (to see a

physician) only if inmates raised an issue, stating that they are “responsible for

their own health.” 

Willow employees were required to immediately report any condition that

posed a danger to inmate health and safety. Schieman testified that this would

consist of “anything abnormal.” There is no medical request form in plaintiff’s

file and there is no notation that he was instructed to fill one out, despite testimony

that “anything pertaining to anything that was going on with the inmate that

needed to be documented would be documented” and that notes would have

included “anything that goes on with a patient or inmate that needs to be addressed

by the doctor.” Physicians were available to Kading and Schieman “24/7”and

Schieman spoke to them “daily” when she worked.

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Plaintiff advised multiple times that he had a heart problem and high blood

pressure. Kading testified as to the function of each of the four medications for

which they had verification, and thus, would have known that none of those

medications were for the treatment of plaintiff’s heart condition. Conversely, she

would have known at least some of the medications that she was not able to verify

were for the treatment of plaintiff’s heart condition. Still, neither Kading nor

Schieman discussed this with plaintiff or a physician, despite the fact that both

plaintiff and the jail physicians were easily accessible to Willow employees.

Further, plaintiff testified that he did not know the procedure to request to see a

jail physician, which, according to plaintiff, is consistent with Schieman’s

testimony that the inmates “are responsible for their own health.” 

When prison medical providers are aware of a prisoner’s obvious and

serious need for medical treatment, yet delay medical treatment for non-medical

reasons, their conduct in causing the delay creates a constitutional infirmity. 

Blackmore, at 899. Plaintiff relies on Potvin v. City of Westland Police Dep’t,

2006 WL 3247116 (E.D. Mich. 2006), in which the plaintiff informed the

defendant police officers when arrested that she needed to take heart medication

every four hours. She supplied pills that were neither labeled nor stored in a

marked container. She was released the next morning, and was told that her pills

had either been lost or destroyed. The Court found that, viewing the evidence in

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the light most favorable to plaintiff, there was evidence that the officers either 1)

destroyed or discarded her medication; or 2) knew of her medical condition and

disregarded it, thus satisfying the “subjective” prong of the deliberate indifference

analysis. The court further found that it was significant that the defendants offered

no rebuttal evidence to the plaintiff’s testimony. Potvin, at *10. In this case,

plaintiff informed four different officials that he needed medication for his heart,

and provided one bottle and a list of the remainder of the medications. While he

was not told that his pills were lost or destroyed, he still did not receive them.

Defendants repeatedly testified that they could not recall what they did in

plaintiff’s specific instance, and thus, by plaintiff’s account, they have offered no

rebuttal to plaintiff’s testimony.

Plaintiff next relies on Flores v. Lenawee Cty., 2008 WL 4601404 (E.D.

Mich. 2008), in which the plaintiff was a diabetic and a heroin addict who also had

a heart condition. She was initially denied medications because she was deemed

to be under the influence of alcohol or drugs. Id. at *2. When a family member

brought Flores’ medication in a bag, there was insulin as well as several bottles of

pill prescriptions. Id. at *3. One of the officers gave Flores her insulin, but none

of the other medication because “the meds were twice a day,” and Flores’

medications were brought after the designated time to administer them to her. Id.

at 9. One officer testified that he did not think to call a nurse or doctor because it

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was not his responsibility. Id. at *5. Flores told another officer that she “needed

her meds,”and was ignored. Id. Another officer failed to give Flores her

medication at the usual time, but had no idea that she had heart issues. Id. at *6-7. 

Flores died in her cell after she suffered a heart attack. Id. at *7. The physician

performing the autopsy concluded that her death was caused by a number of issues

unrelated to her heart, including her own drug abuse, diabetes, and a history of

high blood pressure. Id. at *7-8. The court acknowledged that none of the

officers could have known that Flores had a heart condition. Id. at *7.

Nonetheless, the court denied summary judgment with as to certain defendants. 

Regarding one defendant in particular, the Court held that “[although] Borton

testified that he had no idea Flores had a heart condition, it was reckless to delay

Flores’ receipt of insulin and other medications, particularly when he knew that

Flores had been begging for her medications throughout the morning.” Id. at *15. 

In Flores, the inmate’s heart condition was not known to anyone. Her death

was also attributable to factors other than the denial of her medications. 

Notwithstanding, the court still allowed plaintiff’s claims to go forward, noting

that denying Flores her medications when she repeatedly requested them was

reckless. According to plaintiff, the same logic applies here, except the officials in

question did know about plaintiff’s heart condition. Yet, they still denied him his

medications even though they knew that he had been asking for them. 

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Finally, plaintiff relies on Clark-Murphy v. Foreback, 439 F.3d 280 (6th

Cir. 2006), where the prisoner in question died after being denied treatment for

dehydration and mental illness. In determining motions for summary judgment

regarding eleven of the prison officials, the Sixth Circuit made note of the fact that

many of them did not ensure that the prisoner received medical treatment. Id. at

288-289. Regarding one official, the court specifically noted that, after

recognizing that the prisoner needed treatment, the official completed a referral

form and then testified that after “healthcare was contacted, I left it at that.” Id.

(Additionally noting that “these defendants pin much of their defense on the fact

that they (or others) had completed psychological-referral forms.” Id. at 290). 

The 6th Circuit denied summary judgment to eleven of the officers, reasoning that

“None of this, to be sure, establishes that these defendants either singly or as a

group showed deliberate indifference to Clark. For summary-judgment purposes,

we hold that... these 11 defendants could have perceived a substantial risk of

serious harm to Clark.” In this case, Kading and Schieman insist that they “would

have” offered a medical request form to plaintiff if his medications did not verify

appropriately, or if he complained at med pass. Plaintiff counters that even if this

is true, the Sixth Circuit’s ruling makes it clear that relying on the request for

medical services is not sufficient to ensure that plaintiff received adequate

treatment. In any event, plaintiff testified that he was not offered this form, that he

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did not know the procedure for requesting an appointment with a physician, and

that Kading and Schieman only testified that they would “look into it.”

In reply, defendants maintain that plaintiff has still failed to establish a

genuine issues of material fact. They posit that even assuming, for sake of

argument, that plaintiff is correct that Kading and Schieman were professionally

negligent in failing to verify all of plaintiff’s prescriptions that negligence still

fails to rise to the level of an Eighth Amendment violation. According to

defendants, plaintiff seeks to hold them to an impossibly high standard. 

Defendants point out that it took plaintiff and his counsel until October 9, 2015

(one year after the complaint was filed) to obtain all of plaintiff’s prescription

records themselves. (See Dkt. 32, Ex. N). Yet, plaintiff asserts that defendants

should have been able to do so in a matter of days. Defendants reiterate that they

did, in fact, take steps to verify plaintiff’s prescriptions and only those that could

be verified were provided. Thus, according to defendants, there is no genuine

issue of material fact sufficient to sustain an Eighth Amendment deliberate

indifference claim. 

2. Analysis and Conclusion

Defendants do not assert that plaintiff failed to satisfy the objective prong of

the deliberate indifference standard - i.e. that plaintiff had a serious medical need. 

Therefore, this prong of the deliberate indifference standard need not be discussed

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any further. Rather, the question to be answered is whether the defendants, while

aware of plaintiff’s serious medical need acted with deliberate indifference to that

need. There are essentially two actions (or inactions) that must be analyzed to

determine if defendants’ conduct rose to the level of deliberate indifference. First,

did the defendants’ apparent failure to obtain additional information that could

have led to the verification of plaintiff’s other medications constitute deliberate

indifference? And, second did the failure to independently follow up with a

physician rise to the level of deliberate indifference? Kading testified that a

generic “heart condition” would not be reported to a supervisor, (Dkt. 32-7, Pg ID

321) thus presenting the question whether the defendants’ failure to report

plaintiff’s heart condition to a physician or supervisor while having knowledge of

plaintiff’s self-report of four prescriptions for heart medications, rose to the level

of deliberate indifference. Notably, the Supreme Court has opined that, “an

official’s failure to alleviate a significant risk that he should have perceived but

did not, while no cause for commendation, cannot under our cases be condemned

as the infliction of punishment.” Farmer v. Brennan, 511 U.S. 825, 838 (1994). 

A review of relevant case law suggests that plaintiff’s claims sound in mere

negligence and do not rise to the level of deliberative indifference. For example,

in Latona v. Pollack, 2010 WL 358526 (W.D. Pa. 2010), the plaintiff alleged that

he was denied is prescription medications for 14 days, but the court concluded that

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the plaintiff failed to show any evidence rising to the level of deliberate

indifference. In Latona, the record showed that the plaintiff sought medical

attention four times during the period in question. The court concluded that:

Although Plaintiff was denied his prescribed medications

for 14 days, the record reflects that the denial was not

malicious, sadistic, or even the result of apathy, but

instead was due to the need to verify the treatment plan

with the outside medical providers. Defendants’ actions

in this regard do not rise to the level of deliberate

indifference here. Ward v. Lamanna, 334 Fed. Appx.

487, 491 (3d Cir. June 15, 2009) (“Farmer requires a

state of mind more blameworthy than negligence. To

violate the Cruel and Unusual Punishments Clause of the

Eighth Amendment, a prison official must have a

sufficiently culpable state of mind, which is similar to

criminal law ‘recklessness.’”); McCray v. Prison Health

Services, Inc., 2007 WL 4181728, at *5-6 (M.D. Ala.

2007) (“Assuming, arguendo, that McCray may have

experienced delays in the receipt of his medication [ ... ],

he has not come forward with evidence showing that the

named defendants deliberately withheld [ ... ] or knew of

an escalating or emergency medical condition in regard

to his prescriptions and failed to take steps to correct

it.”). 

Id. at *10. The LaTona court concluded that plaintiff did not show any evidence

of malice, despite being aware of that the plaintiff had been taking psychiatric

medications and was without them for 14 days. Id. Similarly, there is no evidence

in this record of malice. In relying solely on information concerning plaintiff’s the

last pharmacy to verify his prescriptions, defendants were following policy. While

one might question the adequacy of that policy in relation to its intended goal,

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ascribing malice or sadistic intent to its application overstates the circumstance. 

At best, the record indicates negligence.

Notably, in Bruederle v. Louisville Metro Gov’t, 687 F.3d 771 (6th Cir.

2012), the Sixth Circuit concluded that the delay in obtaining verification of

prescription medications was due to mere negligence and not deliberate

indifference. The Court observed that “[a]t best, Bruederle might argue that Smith

should have known he would suffer a seizure or should have taken more

aggressive precautionary steps, but that is the language of medical malpractice, not

deliberate indifference.” Id. at 778 (citing Watkins v. City of Battle Creek, 273

F.3d 682, 686 (6th Cir. 2001) (“[I]t is not enough for a plaintiff to demonstrate a

question of fact whether [officers] should have known” relevant details of an

inmate’s condition)). Similarly, in this case, plaintiff’s claim seems to turn on the

notion that defendants should have known that the failure to quickly obtain the

heart medications at issue would put plaintiff at risk for a heart attack. Plaintiff

offers no evidence to support that the nurses in question had such knowledge. 

More important, even if they did have that knowledge, their actions would rise

only to the level of negligence/malpractice, not deliberate indifference, according

to Bruederle.

The Court does not find the cases on which plaintiff relies to be particularly

helpful to plaintiff’s cause. Potvin is factually distinguishable because not only

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were the defendants aware of the medical condition at issue, they deliberately

discarded her medications. Moreover, after it was determined that the medications

had been either destroyed or discarded, the officials in Potvin opted to release the

plaintiff from jail that same day, rather than hold her until her previously planned

release date two days later. Thus, there was evidence that the officials were both

aware of facts from which an inference of a substantial risk of harm could be

drawn, and they in fact drew that inference. The court also noted that the

defendants failed to offer any rebuttal to plaintiff’s version of events. Yet, in the

present case, there is no evidence that the defendants drew an inference of a

substantial risk of harm. 

In Flores, the defendants had the plaintiff’s medications in their possession

and failed to dispense them. In addition, Judge Lawson pointed to specific

evidence of “vindictiveness” by the defendants which he concluded presented a

question of fact. As to one defendant, there was evidence that Flores cried “help

me. Help me.” but her cries were ignored. As to another defendant, there was

evidence that he failed to give Flores her medications because he was too busy and

was aware that she had been “begging” for her medications. As to yet another

defendant, there was testimony that the deputies were overheard stating that Flores

was not receiving her medications as punishment for the crimes she had

committed. Id. at *15. There is no such similar evidence in the present case,

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which would tip the scales into finding a question of fact on the issue of deliberate

indifference or that would push plaintiff’s claim beyond that of ordinary

negligence. 

Lastly, Clark-Murphy is distinguishable because it involved an interlocutory

appeal on the issue of qualified immunity. The Court concluded that while the

evidence did not show that the defendants singly or as group showed deliberate

indifference, for summary judgment purposes, they “could have perceived a

substantial risk of serious harm to Clark.” Id. at *290. Consequently, the

defendants were not entitled to qualified immunity as a matter of law. The facts

showed that all defendants were apprised that the plaintiff required psychiatric

treatment, but took the position that since someone had notified healthcare, they

did not need to worry about it further. Many were also aware of the water being

turned off in the plaintiff’s cell. The plaintiff later died of dehydration. Given the

differing procedural posture (the record here has been fully developed through

discovery), and the vastly different facts, the Court does not find this case to be

helpful in analyzing the present circumstances.

For these reasons, the undersigned concludes that the conduct of which

plaintiff complains does not rise to the level of deliberate indifference under the

Eighth Amendment. Here, plaintiff has presented evidence showing that the

defendants were responsive to his claim that he required specific medications,

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albeit ultimately unsuccessful in verifying the prescriptions over the course of

plaintiff’s first five days of incarceration. As such, plaintiff has not met the

subjective prong of the inquiry by establishing that “the official knows of and

disregards an excessive risk to inmate health or safety,” which is to say “the

official must be both aware of facts from which the inference could be drawn that

a substantial risk of harm exists, and he must also draw that inference.” Farmer v.

Brennan, 511 U.S. at 837. Rather, plaintiff has established at most mere

negligence, which does not rise or the level of an Eighth Amendment violation. 

Defendants’ motion for summary should, therefore, be granted.

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

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 E.D. Mich. 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

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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). 

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); E.D. Mich. 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.

Date: February 14, 2017 s/Stephanie Dawkins Davis

Stephanie Dawkins Davis

United States Magistrate Judge

CERTIFICATE OF SERVICE

I certify that on February 14, 2017, 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.

s/Tammy Hallwood

Case Manager

(810) 341-7887

tammy_hallwood@mied.uscourts.gov

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