UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

TIMOTHY HENES, 

 Plaintiff, CIVIL ACTION NO. 14-CV-11715 

 vs. 

 DISTRICT JUDGE MARIANNE O. BATTANI 

ROSCOMMON COUNTY MAGISTRATE JUDGE MONA K. MAJZOUB 

JAIL, et al. 

 Defendants.

_____________________________ 

REPORT AND RECOMMENDATION 

 This is a pro se civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff, Timothy 

Henes, a former state prisoner, alleges that Defendants were deliberately indifferent to his 

serious medical needs while he was incarcerated at the Roscommon County Jail in Roscommon, 

Michigan. (Docket no. 1 at 7.) Plaintiff’s complaint listed six individuals associated with the 

Michigan Department of Corrections (MDOC) as Defendants, each in his individual and official 

capacities: Daniel Heyns, MDOC Director;1

 Randall Stevenson, County Sheriff;2 Lieutenant 

Lemire, Jail Administrator; Corporal R. Frydrych, Supervisor; Doctor Viguilla, Jail Doctor;3

 and 

Angie Stern, Jail Nurse.4

 (Id.) Plaintiff also lists the MDOC and Roscommon County as 

defendants. (Id.) Plaintiff seeks monetary damages. (Id.) Additionally, Plaintiff requests 

injunctive relief ordering Defendants to provide adequate medical care. (Id.) 

 

1 While Defendant Heyns is not directly named as a Defendant in the Complaint, he is named by 

his title, MDOC Director. (Docket no. 10.) Defendant Heyns has been terminated from this 

action. (Docket no. 38.)

2 Plaintiff’s Complaint misspelled Defendant Stevenson’s name as “Stephenson.” (Docket no. 1.) 3 Plaintiff’s Complaint misspelled Defendant Viguilla’s name as “Vigillia.” (Docket no. 1.) 4 Defendant Stern has been terminated from this action. (Docket no. 38.)

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 Before the Court is a Motion for Summary Judgment filed by Defendants Stevenson, 

Lemire, Frydrych, and Roscommon County. (Docket no. 29.) Plaintiff filed a motion for 

extension of time to file a response on October 22, 2014, which was granted. (Docket no. 35.) 

Notwithstanding this extension, Plaintiff has failed to file a response to Defendants’ motion. 

Numerous documents mailed to Plaintiff have been returned as “undeliverable,” resulting in the 

court’s order to show cause on March 17, 2015. (Docket no. 43.) In response, Plaintiff claimed a 

need for an extension in time until he “get[s] [his] medical issue[s] fixed” to proceed with “a 

clear mind.” (Docket no. 44.) On March 20, 2015, the Court vacated the order to show cause and 

notified Plaintiff that a response was due by April 6, 2015. (Docket no. 45.) Again Plaintiff 

failed to respond to Defendants’ motion. All pretrial matters have been referred to the 

undersigned for consideration. (Docket no. 20.) The Court has reviewed the pleadings, dispenses 

with a hearing pursuant to Eastern District of Michigan Local Rule 7.1(f)(2), and issues this 

Report and Recommendation. 

I. RECOMMENDATION:

For the reasons that follow, the undersigned recommends that Defendants’ Motion for 

Summary Judgment [29] be GRANTED. Additionally, the court should dismiss the Plaintiff’s 

claims against Defendant Viguilla without prejudice for failure to serve pursuant to Fed. R. Civ. 

P. 4(m). Therefore, this matter should be dismissed in its entirety. 

II. REPORT: 

 A. Facts

 Plaintiff’s Complaint alleges that on or around March 4, 2014, he arrived at Roscommon 

County Jail. (Docket no. 1 at 7.) Approximately ten days after arriving to the jail, Plaintiff 

asked to be seen by the jail’s medical staff because he had been experiencing severe pain in his 

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groin and abdomen, along with swelling and unusual bumps in the area. (Id.) These requests took 

both written and verbal form and were directed to the correctional staff. (Id.) 

 Plaintiff alleges that despite his numerous requests to be examined by medical personnel, 

no sufficient action had been taken to diagnose or address any of his medical concerns. (Docket 

no. 23 at 9-10.) Plaintiff claims that being denied medical care has caused additional mental 

distress, humiliation, and degradation, as well as prolonged pain. (Id. at 11.) 

B. Standard

 “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). A moving party may meet that burden “by ‘showing’–that is, pointing out to 

the district court–that there is an absence of evidence to support the nonmoving party’s case.” 

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Rule 56 expressly provides that: 

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, including depositions, 

documents, electronically stored information, affidavits or declarations, 

stipulations (including those made for purposes of the motion only), 

admissions, interrogatory answers, or other materials; 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 Rule also provides the consequences of failing to properly support 

or address a fact: 

If a party fails to properly support an assertion of fact or fails to properly address 

another party’s assertion of fact as required by Rule 56(c), the court may: 

(1) give an opportunity to properly support or address the fact; 

(2) consider the fact undisputed for purposes of the motion; 

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(3) grant summary judgment if the motion and supporting materials – 

including the facts considered undisputed – show that the movant is 

entitled to it; or 

(4) issue any other appropriate order. 

Fed. R. Civ. P. 56(e). “The court need consider only the cited materials, but it may consider 

other materials in the record.” Fed. R. Civ. P. 56(c)(3). 

When the moving party has met its burden under rule 56, “its opponent must do more 

than simply show that there is some metaphysical doubt as to the material facts.” Matsushita 

Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Ultimately a district court 

must determine whether the record as a whole presents a genuine issue of material fact, id. at 

587, drawing “all justifiable inferences in the light most favorable to the non-moving party,” 

Hager v. Pike Cnty. Bd. Of Educ., 286 F.3d 366, 370 (6th Cir. 2002). 

C. Analysis 

Through their Motion for Summary Judgment, Defendants argue that (1) Plaintiff has 

failed to satisfy basic pleading requirements by not making specific factual allegations against 

individual Defendants; (2) Plaintiff failed to exhaust his available administrative remedies by not 

appealing his April 17, 2014 medical grievance; (3) Plaintiff cannot establish Defendants’ 

deliberate indifference to a serious medical need; and (4) “while Plaintiff names Roscommon 

County as a Defendant, he makes no specific allegation against it and there is no evidence of 

unconstitutional policy or custom.” (Docket no. 29.) Further, Defendants Roscommon County 

and Stevenson assert that Plaintiff’s failure-to-train claim has no support and must be dismissed. 

(Id. at 12-13.) Additionally, Defendants Stevenson, Lemire, and Frydrych, as individual officers, 

argue entitlement to qualified immunity. (Id. at 1.) 

1. Failure to Satisfy Basic Pleading Requirements 

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Defendants argue that Plaintiff failed to satisfy basic pleading requirements by suing 

numerous Defendants individually without making specific factual allegations against these 

individual Defendants. (Docket no. 29 at 5.) It is a well-established principle that Section 1983 

liability cannot be based on a mere failure to act or on a theory of respondeat superior. 

Salehpour v. Univ. of Tenn., 159 F.3d 199, 206-07 (6th Cir. 1998). A pro se plaintiff’s 

complaint must contain either direct or inferential allegations respecting all of the material 

elements to sustain a recovery under some viable legal theory. Scheid v. Fanny Farmer Candy 

Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988). At a minimum “a plaintiff must allege that the 

official ‘at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional 

conduct.’” Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (quoting Hays v. Jefferson 

Cnty., Ky., 668 F.2d 869, 874 (6th Cir. 1982)). Thus, to state a plausible claim for relief, a 

plaintiff must allege that each defendant was personally involved in, or otherwise condoned, 

encouraged, or knowingly acquiesced in the alleged misconduct. Id. A court is not required to 

guess at the nature of the claim asserted. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). 

In his Complaint, Plaintiff alleges that he has “been sending out multiple kites...and [he] 

verbally asked correctional officer (sic) multiple times to put [him] down to see the doctor.” 

(Docket no. 1 at 7.) This statement is the extent of Plaintiff’s factual allegations. Nowhere in 

Plaintiff’s Complaint does he allege that Defendants either took any action or that they implicitly 

authorized, approved, or knowingly acquiesced in any wrongful conduct. Therefore, 

Defendants’ Motion for Summary Judgment should be granted. 

2. Failure to Exhaust Administrative Remedies 

 Alternatively, Defendants argue that Plaintiff’s claims should be dismissed because he 

has failed to exhaust his administrative remedies under the Prison Litigation Reform Act 

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(“PLRA”), 42 U.S.C. §1997e(a). Specifically, Defendants assert that Plaintiff has failed to file a 

grievance appeal with the sheriff regarding any of the allegations in his Complaint as to any 

Defendant. (Docket no. 29 at 6.) Plaintiff filed a grievance with the Roscommon County Jail on 

April 17, 2014. (Docket no. 29-7.) The grievance states that Plaintiff repeatedly asked, via 

verbal and written requests, to see a doctor for over a month and that he had not been treated. Id.

Subsequently, the Plaintiff saw Dr. Viguilla on April 22, 2014. (Docket no. 29-3.) 

The PLRA of 1995 requires that a prisoner exhaust all administrative remedies before 

filing a Section 1983 action. Specifically, the statute provides that “[n]o action shall be brought 

with respect to prison conditions under section 1983 . . . , or any other Federal law, by a prisoner 

confined in any jail, prison, or other correctional facility until such administrative remedies as 

are available are exhausted.” 42 U.S.C. §1997e(a). The exhaustion requirement is mandatory 

and requires a prisoner to comply with state procedural rules such as time limits for filing 

grievances and other critical procedural rules. Jones v. Bock, 549 U.S. 199, 211 (2007); 

Woodford v. Ngo, 548 U.S. 81, 90-91 (2006). 

Defendants attached a copy of Roscommon County Policy and Procedure 42 (“Policy”) 

regarding inmate grievances to their motion. (Docket no. 29-10.) The Policy requires the on-duty 

Corporal to attempt to resolve the grievance and, if resolved, report the grievance to the jail 

administrator during working hours. (Id.) If the grievance is not resolved, the jail administrator 

will hold an informal hearing to try and resolve the complaint. (Id.) After receiving a written 

response from the jail administrator, the grievant must appeal to the Sheriff if they disagree with 

the administrative decision. (Id.) A prisoner’s administrative remedies are exhausted once his 

complaints have been grieved and appealed in compliance with the Policy. 

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 Plaintiff’s grievance on April 17, 2014, fails to identify any wrongdoing by Defendants. 

Moreover, Plaintiff did not file an appeal as required by the Policy. (Docket no. 29 at 6.) For 

those reasons, the Court should find that Plaintiff failed to exhaust his administrative remedies 

against the Defendants. Therefore, Defendants’ Motions for Summary Judgment should be 

granted. 

3. Failure to Establish Deliberate Indifference to Serious Medical Needs 

“The Eighth Amendment prohibition on cruel and unusual punishment protects prisoners 

from the ‘unnecessary and wanton infliction of pain.’” Barker v. Goodrich, 649 F.3d 428, 434 

(6th Cir. 2011) (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)). Where a prisoner claims 

that such a violation occurred through a lack of proper medical care, “it is not necessary that the . 

. . officials consciously sought to inflict pain by withholding treatment.” Molton v. City of 

Cleveland, 839 F.2d 240, 243 (6th Cir. 1988). Instead, “[w]here prison officials are so 

deliberately indifferent to the serious medical needs of prisoners as to unnecessarily and 

wantonly inflict pain, they impose cruel and unusual punishment in violation of the Eighth 

Amendment.” Horn v. Madison Cnty. Fiscal Court, 22 F.3d 653, 660 (6th Cir. 1994) (citing 

Estelle v. Gamble, 429 U.S. 97, 104 (1976)). “Fundamentally, the concept underlying the Eighth 

Amendment is nothing less than the dignity of humankind.” Villegas v. Metro. Gov’t of 

Nashville, 709 F.3d 564, 568 (6th Cir. 2013) (internal quotations, omissions, and modifications 

omitted). 

 To support a claim of deliberate indifference under the Eight Amendment, a Plaintiff 

must satisfy two components–an objective component, and a subjective component. Id. (citing 

Harrison v. Ash, 538 F.3d 510, 518 (6th Cir. 2008)). “Satisfying the objective component 

ensures that the alleged deprivation is sufficiently severe, while satisfying the subjective 

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component ‘ensures that the defendant prison official acted with a sufficiently culpable state of 

mind.’” Quigley v. Toung Vinh Thai, 707 F.3d 675, 681 (6th Cir. 2013) (quoting Smith v. 

Carpenter, 316 F.3d 178, 183-84 (2d Cir. 2003)). 

i. The Objective Component 

To satisfy the objective component, “‘the plaintiff must allege that the medical need at 

issue is “sufficiently serious.”’” Id. (quoting Comstock v. McCrary, 273 F.3d 693, 703 (quoting 

Farmer v. Brennan, 511 U.S. 825, 834 (1994))). That is, the plaintiff must show that he “faced a 

substantial risk of serious harm.” Villegas, 709 F.3d at 568. But “[t]he objective component 

further ‘requires a court to assess whether society considers the risk that the prisoner complains 

of to be so grave that it violates contemporary standards of decency’–that is, it ‘is not one that 

today’s society chooses to tolerate.’” Id. (quoting Helling v. McKinney, 509 U.S. 25, 36 (1993)). 

Therefore, the plaintiff must show that (1) he “faced a substantial risk of serious harm,” and (2) 

the “risk is one that society chooses not to tolerate.” Id.

Plaintiff’s Complaint describes severe pain around genital area due to swelling and 

unusual bumps. (Docket no. 1 at 7.) As noted, Plaintiff was seen by Dr. Roberto Viguilla on 

April 22, 2014. (Docket no. 29-8.) The medical record notes that Plaintiff had tenderness and 

HPV lesions on his genitals that the doctor concluded were likely a penile wart and epididymitis. 

(Docket no. 29 at 11.) Plaintiff did not have fever, chills, or anorexia, but he did mention pain on 

urination to the doctor. (Id.) Dr. Viguilla recommended Tylenol or Motrin. (Id.) Consequently, 

the Defendants assert that “Plaintiff’s issue with his genitals was not a serious one.” (Docket no. 

29 at 11.) The 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 

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Eighth Amendment violation.” Hudson v. McMillian, 503 U.S. 1, 8-9 (1992). Accordingly this 

Court agrees with Defendant and recommends finding that Plaintiff’s claims of Eighth 

Amendment deliberate indifference violations fail with respect to the objective component 

requirement. 

ii. The Subjective Component 

To satisfy the subjective component of a deliberate indifference claim and show that the 

defendant had a sufficiently culpable state of mind, a plaintiff must show that “‘the official 

knows of and disregards’ the substantial risk of serious harm.” Villegas, 709 F.3d at 569 

(quoting Harrison, 539 F.3d at 518). The plaintiff need not prove, however, “that the official 

acted ‘for the very purpose of causing harm or with knowledge that harm will result.’” 

Comstock, 273 F.3d at 703 (quoting Farmer, 511 U.S. at 835). Instead, a plaintiff must show 

that (1) “the official being sued subjectively perceived facts from which to infer substantial risk 

to the [plaintiff],” (2) the official “did in fact draw that inference,” and (3) the official “then 

disregarded that risk.” Quigley, 707 F.3d at 681 (internal quotations omitted). Moreover, 

“[d]irect evidence about a defendant’s knowledge is not necessary, but rather, the knowledge 

aspect of the subjective component can be determined [“in the usual ways, including inference 

from circumstantial evidence” Quigley, 707 F.3d at 682].” Villegas, 709 F.3d at 569. For 

example, “a factfinder may conclude that a prison official knew of a substantial risk from the 

very fact that the risk was obvious.” Id. 

 Defendants argue that the record is devoid of any evidence demonstrating that Plaintiff 

was denied medical treatment or that any Defendant was deliberately indifferent to his serious 

medical needs. Plaintiff was seen by a doctor on April 22, 2014, which is approximately a 

month after he began repeatedly requesting medical care. (Docket no. 1 at 7; Docket no. 29 at 

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11.) Consequently, Plaintiff cannot show that the Defendants disregarded his medical needs. 

Therefore, the undersigned also recommends granting Defendants’ Motion for Summary 

Judgment on substantive grounds. 

4. Failure-to-Train Claim against Defendants Stevenson and 

Roscommon County 

 Plaintiff’s Complaint states that “the Sheriff has failed to train his staff correctly.” 

(Docket no. 1 at 7.) The Sixth Circuit “has identified two situations justifying a conclusion of 

deliberate indifference in claims of failure to train”: (1) the “‘failure to provide adequate training 

in light of foreseeable consequences that could result from a lack of instruction;’” and (2) where 

“‘the city fails to act in response to repeated complaints of constitutional violations by its 

officers.’” Ellis ex. rel. Pendergrass v. Cleveland Mun. Sch. Dist., 455 F.3d 690,700-01 (6th Cir. 

2006) (quoting Brown v. Shaner, 172 F.3d 927, 931 (6th Cir.1999)). Deliberate indifference is 

established when “the need for more or different training is . . . obvious, and the inadequacy [is] 

likely to result in the violation of constitutional rights.” City of Canton, Ohio v. Harris, 489 U.S. 

378, 390 (1989). Plaintiff has provided no evidence to suggest that Defendant Stevenson, as 

sheriff, or Roscommon County do not properly train their officers. Moreover, there is no 

evidence to suggest, and Plaintiff does not allege facts to suggest, that Defendants Stevenson or 

Roscommon County maintained a custom, practice, or official policy regarding training that 

violated Plaintiff’s constitutional rights or that caused the medical delay for which he complains. 

Thus, Plaintiff’s allegations against Defendants amount to nothing more than unsupported legal 

conclusions and therefore fail. Accordingly, Defendants’ Motion for Summary Judgment should 

be granted. 

5. Qualified Immunity 

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 Defendants Stevenson, Lemire, and Frydrych allege that they are entitled to dismissal of 

their individual capacity claims under the doctrine of qualified immunity. (Docket no. 29 at 7.) 

Under qualified immunity, “government officials performing discretionary functions generally 

are shielded from liability for civil damages insofar as their conduct does not violate clearly 

established statutory or constitutional rights of which a reasonable person would have known.” 

Harlow v. Fitzgerald, 457 U.S. 800, 817–818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). “‘The 

defense of qualified immunity protects officials from individual liability for monetary damages 

but not from declaratory or injunctive relief.’” Top Flight Entm’t, Ltd. v. Schuette, 729 F.3d 623, 

635 n.2 (6th Cir. 2013) (quoting Flagner v. Wilkinson, 241 F.3d 475, 483 (6th Cir. 2001)). 

The Sixth Circuit has set forth a tri-part test to determine whether a defendant is entitled 

to qualified immunity: whether (1) “the facts viewed in the light most favorable to the plaintiff 

show that a constitutional violation has occurred;” (2) “the violation involved a clearly 

established constitutional right of which a reasonable person would have known;” and (3) “the 

plaintiff has offered sufficient evidence to indicate that what the official allegedly did was 

objectively unreasonable in light of the clearly established constitutional rights.” Radvansky v. 

City of Olmsted Falls, 395 F.3d 291, 302 (6th Cir. 2005) (citing Feathers v. Aey, 319 F.3d 843, 

848 (6th Cir.2003)); see also Williams v. Mehra, 186 F.3d 685, 691 (6th Cir.1999) (en banc) 

(noting that “objective legal reasonableness” is a distinct, third prong of the qualified immunity 

analysis). The court may, however, take up these considerations in any order. See Pearson v. 

Callahan, 555 U.S. 223 (2009). 

Notably, qualified immunity is best addressed after determining whether a plaintiff has 

stated a constitutional claim upon which relief can be granted: “[T]he better approach to 

resolving cases in which the defense of qualified immunity is raised is to determine first whether 

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the plaintiff has alleged a deprivation of a constitutional right at all. Normally, it is only then 

that a court should ask whether the right allegedly implicated was clearly established at the time 

of the events in question.” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 842 n.5 (citing Siegert v. 

Gilley, 500 U.S. 226, 232 (1991)). Therefore, because the Court recommends granting 

Defendants’ Motion for Summary Judgment on the merits, the Court need not address 

Defendants’ assertion of qualified immunity. 

6. Failure to Serve Defendant Viguilla 

“An inmate who brings a civil rights complaint must specifically identify each defendant 

against whom relief is sought and must give each defendant notice of the action by serving upon 

him a summons and copy of the complaint.” Reed-Bey v. Pramstaller, No. 06-10934, 2007 WL 

2421422 at *2 (E.D. Mich. Aug. 23, 2007) (citing Feliciano v. DuBois, 846 F.Supp. 1033, 1048 

(D. Mass. 1994)). Plaintiff failed to serve Defendant Viguilla in a timely manner. As a result, 

Plaintiff’s claims against Defendant Viguilla should be dismissed without prejudice pursuant to 

Fed. R. Civ. P. 4(m). 

D. Conclusion 

 For the above-stated reasons, the Court recommends GRANTING Defendants’ Motion 

for Summary Judgment. The Court should grant Defendants’ Motion for Summary Judgment 

with respect to Plaintiff’s claims of (1) 8th Amendment deliberate indifference to serious medical 

needs and (2) failure-to-train staff. The Court further recommends dismissing Plaintiff’s claim 

against Defendant Viguilla without prejudice under Fed. R. Civ. P. 4(m). Therefore, this matter 

should be dismissed in its entirety. 

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III. NOTICE TO PARTIES REGARDING OBJECTIONS:

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

Recommendation, but are required to act within fourteen (14) days of service of a copy hereof as 

provided for in 28 U.S.C. §636(b)(1) and E.D. Mich. LR 72.1(d)(2). 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 & Human Servs., 932 F.2d 505 (6th Cir. 1991); United States 

v. Walters, 638 F.2d 947 (6th Cir. 1981). Filing of objections which 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 & 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 E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this 

Magistrate Judge. 

 Any objections must be labeled as “Objection #1,” “Objection #2,” etc. Any objection 

must recite precisely the provision of this Report and Recommendation to which it pertains. Not 

later than fourteen days after service of an objection, the opposing party must file a concise 

response proportionate to the objections in length and complexity. The response must 

specifically address each issue raised in the objections, in the same order and labeled as 

“Response to Objection #1,” “Response to Objection #2,” etc. 

Dated: June 12, 2015 s/ Mona K. Majzoub 

 MONA K. MAJZOUB 

UNITED STATES MAGISTRATE JUDGE 

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PROOF OF SERVICE 

I hereby certify that a copy of this Report and Recommendation was served on counsel of 

record and on Plaintiff Timothy Henes on this date. 

Dated: June 12, 2015 s/ Lisa C. Bartlett 

Case Manager 

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