1 

UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTICT OF MICHIGAN 

SOUTHERN DIVISION 

JAMES EDWARD COLEN, 

 

 Plaintiff, Civil Action No. 14-12948 

 Honorable Paul D. Borman 

v. Magistrate Judge Elizabeth A. Stafford 

 

CORIZON MEDICAL SERVICES, et al. 

 

 

 Defendants. 

__________________________________/ 

REPORT AND RECOMMENDATION TO GRANT 

DEFENDANTS CORIZON HEALTH, INC., ALFORD, BRADY, 

JINDAL, MARTIN, PRASAD, AND SUDHIR’S 

MOTION FOR SUMMARY JUDGMENT [ECF No. 79] 

I. INTRODUCTION 

 Plaintiff James Edward Colen, a prisoner proceeding pro se, brings 

this action pursuant to 42 U.S.C. § 1983, alleging various violations of both 

his Eighth and Fourteenth Amendment rights during his incarceration at 

Gus Harrison Correctional Facility (“ARF”) in Adrian, Michigan.1

 The 

complaint alleges liability on the part of employees of the Michigan 

Department of Corrections and of Corizon Health Inc. (“Corizon”). [ECF 

No. 13]. Defendants Corizon Health, Inc., Danielle Alford, P.A., Darrell 

 

1 The Honorable Paul D. Borman referred this matter for report and 

recommendation on dispositive matters. [ECF No. 9; ECF No. 33]. 

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Brady, M.D., Rosilyn Jindal, P.A., Minnie Martin, M.D., Anil Prasad, M.D., 

and Bhamini Sudhir, M.D., have filed a motion for summary judgment 

pursuant to Federal Rule of Civil Procedure 56(a), contending that Colen 

failed to exhaust all administrative remedies before bringing certain claims, 

and that all of his claims fail to establish liability under the Constitution or 

state law. [ECF No. 79]. They also contend that some claims were beyond 

the relevant statutes of limitations when made. [Id.]. 

The Court finds a genuine issue as to the exhaustion argument, but 

otherwise RECOMMENDS that defendants’ motion for summary judgment 

be GRANTED, that Colen’s federal claims be DISMISSED WITH 

PREJUDICE, and that the Court decline to exercise supplemental 

jurisdiction over Colen’s state-law claims and DISMISS them WITHOUT 

PREJUDICE. 

II. BACKGROUND 

Colen’s claims stem from the allegedly inadequate medical care he 

received after he allegedly broke his right foot and injured his ankle during 

a basketball game on November 10, 2010. [ECF No. 13, PageID 82]. He 

contends that defendants were deliberately indifferent to his medical needs 

for a period of three years following this injury, causing his symptoms to 

exacerbate. 

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A week after the basketball injury, two nurses diagnosed Colen with a 

sprained ankle and provided him with an ace bandage to wrap the injury. 

[Id.]. He claims that, even with the bandage, the injury “became extremely 

worse” when he attempted to walk and he “continued in pain and suffering 

for the rest of the year.” [Id.]. In January 2011, P.A. Jindal examined 

Colen, diagnosing him with an ankle sprain. [ECF No. 79-2, PageID 660-

61; ECF No. 81-1, PageID 820-21]. Colen requested an x-ray, but Jindal 

denied the request because “[t]he x-ray would not provide additional 

information for diagnostic purposes of a sprain or change the course of 

treatment.” [ECF No. 79-2, PageID 661; see also ECF No. 81-1, PageID 

821]. 

 Jindal saw Colen again near the end of January, and then in early 

February, when he complained of decreased mobility, limping, swelling, 

and tenderness. [ECF No. 79-2, PageID 661]. Jindal examined his ankle 

and ruled out a foot or ankle fracture, but found Colen to have elevated 

blood pressure, and she ordered regular checks, baseline lab work, and 

knee-length support hose. [Id.]. She instructed Colen on methods to 

reduce his blood pressure and related edema. [Id., PageID 661-62]. In 

March, Jindal found Colen’s blood pressure readings to indicate 

prehypertension, and she followed up with him. [Id.]. 

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 Jindal examined Colen again in April 2011, and suspected that he 

had prepatellar bursitis due to swelling, popping, and mild pain associated 

with his left knee. [Id.]. She also suspected that he had arthritis, due to his 

ongoing complaints of joint pain and swelling, but x-rays of his left wrist and 

left knee returned normal. [Id., PageID 662-63]. She treated his bursitis 

and suspected arthritis with an ACE bandage, rest, ice, Tylenol, and 

Naprosyn. [Id.]. Notably, Jindal noted that Colen did not complain of pain 

in his right foot or ankle, inconsistent with a broken foot. [Id.]. 

 In May 2011, Colen sent a “kite”2

 to the healthcare staff explaining 

that he could barely walk and had begun to experience additional issues 

with his knee, and requesting to see a doctor. [ECF No. 13, PageID 83]. 

The kite was allegedly ignored by a nurse, so he sent another kite later in 

May describing his issues. [Id., PgID 83]. He was again seen by Jindal, 

who noted a limited range of motion in his right foot, but no edema. [ECF 

No. 79-2, PageID 663]. As for his left and right knees, Jindal found no joint 

deformity, swelling, erythema, or effusion, and full range of motion. [Id.]. 

He was instructed to continue taking Naprosyn and Tylenol, to increase 

fluid intake, and to try certain exercises. [Id., PageID 663-64; ECF No. 13, 

 

2

 A “kite” is a written communication by a prisoner to request services from 

prison staff, including medical care. See Peterson v. Foco, No. 1:09-CV233, 2010 WL 5058352, at *2 (W.D. Mich. Dec. 6, 2010) (collecting cases). 

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PageID 83]. Defendants also note that, according to the medical record, 

Colen told an officer that he did not need his elevator pass. [ECF No. 81-1, 

PageID 851]. 

In July 2011, Jindal saw Colen and diagnosed him with a peroneal 

ankle sprain. [ECF No. 79-2, PageID 664]. She prescribed an ACE 

bandage, elevation, and ice, and concluded again that an x-ray was not 

necessary. [Id.]. Then in mid-October 2011, after filing a kite asking to see 

a doctor instead of the physician’s assistant, Colen was told that a nurse 

would determine whether he needed to see a medical provider, and he was 

not scheduled to see a doctor as he requested. [ECF No. 13, PgID 84]. 

In April 2012, Colen sent a healthcare kite describing his ongoing 

health issues. [Id., PgID 85]. He claims that he was not seen by a doctor 

at that time, but the medical record shows an examination by Dr. Prasad 

two days after the kite, who prescribed an increased dosage of Naprosyn, 

Tylenol, an ACE bandage, rest, ice, and a left knee brace. [ECF No. 81-1, 

PageID 886-88]. Colen maintains that this visit did not take place. [ECF 

No. 86, PageID 1282]. He saw Jindal again in May, but he did not 

complain of any issues with his feet. [ECF No. 79-2, PageID 665]. She 

found a positive Tinel’s sign (“tingling from nerve compression”) and 

prescribed prednisone and continued the Naprosyn. [Id., PageID 665-66]. 

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In September 2012, Colen sent another kite requesting adequate 

healthcare and claiming that his civil rights were being infringed upon. 

[ECF No. 13, PgID 85]. He kited again in October and was seen by Jindal, 

despite his desire to see a doctor instead of a physician’s assistant. [Id.]. 

Jindal ordered another set of x-rays, which showed “markedly advanced 

arthritic changes at the left knee joint articulating surface.” [ECF No. 79-2, 

PageID 666; ECF No. 81-1, PageID 904]. The x-ray of Colen’s right foot 

showed a large plantar calcaneal spur and mild arthritic changes. [Id.]. He 

had mild soft tissue swelling over the top of his foot as well as a bunion on 

the great toe. [Id.]. No displaced fractures were noted, and Jindal opines 

that the results indicate chronic degenerative changes of arthritis, not a 

right foot fracture. [ECF No. 79-2, PageID 667]. 

 Colen says that on November 4, 2012, he sent a kite describing his 

declining health and wanting to know the results of his x-rays. [ECF No. 

13, PageID 86]. He states that he received a response on November 13 

stating that he was scheduled to see a medical professional. [Id.]. He 

alleges that he responded that same day with another kite stating that he 

was being inhumanely treated and denied his “civil rights” and medical 

care. [Id.]. According to Colen, a response he received two days later 

resolved his kite by telling him to “[c]ontinue to kite if the symptoms do not 

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improve.” [Id.]. But medical records show that he was seen by Jindal on 

November 13 as well. [ECF No. 81-1, PageID 907-09]. At that time, Jindal 

diagnosed Colen with localized osteoarthritis, and explained his x-rays and 

diagnosis to him. [ECF No. 81-1, PageID 907-08; ECF No. 79-2, PageID 

667]. He was given instructions to alleviate his symptoms and was ordered 

a bottom bunk detail, which he had previously been denied. [Id.]. 

In April 2013, Colen saw Jindal again, and Colen demanded to see a 

board certified doctor instead. [ECF No. 81-1, PageID 920; ECF No. 79-2, 

PageID 668]. Jindal states that, as a midlevel provider, she only refers a 

patient to a doctor if it is necessary in her medical judgment. [ECF No. 79-

2, PageID 668]. Here, she found that his condition remained consistent 

with his previous diagnosis of localized osteoarthritis and requested a knee 

brace for him, but Haresh B. Pandya, M.D. did not approve that request, 

reasoning that braces do not help. [ECF No. 79-2, PageID 669; ECF No. 

81-1, PageID 922-23]. 

In June 2013, Colen was seen again by Dr. Prasad. [ECF No. 81-1, 

PageID 933-35]. Colen alleges that he was not personally attended to 

during this visit and that he was only prescribed Tylenol and an ACE 

bandage. [ECF No. 13, PageID 89]. Medical records indicate that Tylenol 

was added to his current Naprosyn medication, and that Dr. Prasad also 

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provided a detail for a cane. [ECF No. 81-1, PageID 935]. 

Colen was seen by Jindal again in July 2013, but continued to kite 

throughout the year in an attempt to see another doctor. [ECF No. 13, 

PageID 90]. He also had cortisone shots for his knee rescheduled 

repeatedly, with Dr. Brady eventually finding them unnecessary. [Id.; ECF 

No. 79-3, PageID 684]. In September, Colen was seen by Dr. Brady for the 

first time. [Id.]. Dr. Brady reviewed the prior x-rays, finding that they 

showed only arthritic changes, and examined Colen’s left knee, which was 

warm, swollen, tender, with limited range of motion and crepitations. [ECF 

No. 79-3, PageID 684]. Colen contends that Dr. Brady refused to 

thoroughly examine his right foot. [ECF No. 13, PgID 90]. But Dr. Brady 

states that he noted no deformity in Colen’s right foot, ruling out a fracture 

and finding his symptoms consistent with the arthritis diagnosis. [ECF No. 

79-3, PageID 684; ECF No. 81-1, PageID 958-60]. X-rays of the left knee 

and right foot were ordered. [Id.]. 

In October 2013, Colen claims that he discussed the x-rays with Dr. 

Brady and was informed that his right foot had been broken in the past. 

[ECF No. 13, PageID 91]. Later that month, medical records indicated that 

Colen saw Dr. Sudhir for the first time within the relevant period. [ECF No. 

81-1, PageID 972-73]. Dr. Sudhir noted severe pain in Colen’s knee and 

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foot, found severe osteoarthritic changes with deformity in the left knee, 

restricted range of motion, and inability “to do any tests due to joint 

contracture.” [Id.]. In Colen’s right foot, Dr. Sudhir found a bony 

enlargement due to osteoarthritic changes, restricted range of motion in all 

directions, inversion of the foot at rest, and tenderness over the bottom of 

the heel. [Id., PageID 973]. She also found moderate osteoarthritic 

changes in the right knee. [Id.]. She assessed Colen with advanced 

osteoarthritis and stated that he will need a total knee replacement at some 

time, ordering him a wheelchair and elevator access for the time being. 

[Id.]. Defendants note that Dr. Sudhir did not find the presence of a fracture 

in his right foot, and did not order cortisone injections. [Id.]. 

Colen alleges that in November, a nurse told him that his x-rays 

indicated that his foot had been previously broken, and that he will always 

have pain where it healed improperly. [ECF No. 13, PageID 91]. He also 

kited later that month for a refill of pain medication since he had run out, but 

he was never scheduled for a visit and his medication was never refilled. 

[Id.]. The medical record indicates that Colen had another x-ray of his left 

knee that month, which was reviewed by Khawaja H. Ikram, D.O. [ECF No. 

81-1, PageID 982-84]. Dr. Ikram also physically examined Colen’s knee, 

finding moderate swelling, mild palpable tenderness, hindered reflexes, and 

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that Colen walked on his tiptoes with knee in a flexed position. [Id., PageID 

983]. His x-ray showed marked degenerative changes of the left knee and 

complete deterioration of the medial and lateral compartment, and Dr. 

Ikram assessed Colen to have “[s]evere DJD of the left knee.” [Id.]. Dr. 

Ikram noted that Colen could “remember no previous injury, fall or trauma 

that brought on his complaints” and thus suspected the “possibility of 

sclerosis secondary to infection versus drug abuse” due to Colen’s history 

of crack cocaine usage. [Id.]. He found that Colen “will need to be a 

candidate for a total knee replacement.” [Id.]. 

In April 2014, Colen underwent total knee arthroplasty (replacement). 

[ECF No. 81-1, PageID 1073-76]. Afterwards, he was seen by P.A. Alford, 

who monitored his condition until his discharge in May. [See generally ECF 

No. 81-1, PageID 1090-185]. Alford is not mentioned in the complaint until 

the day before his release, when she allegedly offered to help with his foot 

pain but did not follow up, and on the day of his release, when she 

allegedly sent him for x-rays. [ECF No. 13, PageID 93]. The day after 

Colen’s release, he was evaluated by Jindal, where he alleges they argued 

about whether his right foot had been broken. [Id., PageID 93-94]. Jindal 

found his current complaints of pain to be consistent with the previous 

diagnosis of chronic arthritic pain. [ECF No. 79-2, PageID 673-74]. 

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In May, Colen was seen by Dr. Martin, who examined his right foot, 

noting that it was an alleged basketball injury and that there was no 

“bruising, clicking or popping, locking, numbness, tingling or prickling or 

weakness.” [ECF No. 81-1, PageID 439]. Colen alleges that he was 

“wincing in great pain” during the examination of his foot, and that he was 

simply told to leave after the examination. [ECF No. 13, PageID 94]. The 

medical record does not show any change in his medication or 

prescriptions. [ECF No. 81-1, PageID 439]. Colen has since been 

definitively diagnosed with rheumatoid arthritis. [ECF No. 79-3, PageID 

678, 692]. 

 According to Colen, defendants are liable under 42 U.S.C. § 1983 for 

violating the Eighth and Fourteenth Amendments by demonstrating 

deliberate indifference to his medical needs and his rights to liberty and fair 

and equal treatment; caused him to suffer emotional stress; were negligent 

in their duties; and sanctioned or implemented policies and practices that 

led to his denial of adequate medical care. [ECF No. 13, PageID 96-

98,100-17]. 

III. ANALYSIS 

Defendants argue that Colen’s claims against them should be 

dismissed because he has failed to exhaust all of his administrative 

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remedies prior to bringing suit against some defendants, and because his 

allegations do not rise to the level of deliberate indifference to a serious 

medical need, or medical malpractice under state law. They further argue 

that some claims Colen raises were filed after the relevant statutes of 

limitations expired. The Court agrees for the reasons stated below. 

A. 

Rule 56(a) provides that “[t]he 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.” See also 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57 (1986); Pittman v.

Cuyahoga County Dep't of Children & Family Servs., 640 F.3d 716, 723 

(6th Cir. 2011). The party seeking summary judgment bears the initial 

burden of informing the Court of the basis for its motion, and must identify 

particular portions of the record that demonstrate the absence of a genuine 

dispute as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 

(1986); Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009). 

If the movant satisfies its burden, the burden shifts to the non-moving 

party to go beyond the pleadings and set forth specific facts showing a 

genuine issue for trial. Celotex, 477 U.S. at 324; Wrench LLC v. Taco Bell 

Corp., 256 F.3d 446, 453 (6th Cir. 2001). In deciding a summary judgment 

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motion, the Court must view the factual evidence and draw all reasonable 

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

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88(1986); 

McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). The 

Court’s function at the summary judgment stage “is not to weigh the 

evidence and determine the truth of the matter but to determine whether 

there is a genuine issue for trial.” Liberty Lobby, 477 U.S. at 249. 

When feasible, the Court will decide exhaustion disputes before 

addressing the merits of the claims. See Albino v. Baca, 747 F.3d 1162, 

1170 (9th Cir. 2014). A dismissal for failure to exhaust administrative 

remedies, even when decided on summary judgment, is without prejudice. 

Boyd v. Corr. Corp. of America, 380 F.3d 989, 994 (6th Cir. 2004). 

B.

 The Prison Litigation Reform Act (“PLRA”) requires prisoners to 

“properly” exhaust all “available” administrative remedies prior to filing a 

lawsuit challenging prison conditions. 42 U.S.C. § 1997e(a); Woodford v. 

Ngo, 548 U.S. 81, 88-90, 93 (2006). Requiring exhaustion allows prison 

officials an opportunity to resolve disputes concerning the exercise of their 

responsibilities before being haled into court and produces a useful 

administrative record. Jones v. Bock, 549 U.S. 199, 204 (2007). 

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MDOC Policy Directive 03.02.130 sets forth a three-step procedure 

prisoners must follow in order to complete the administrative review 

process and properly exhaust grievances. A prisoner must attempt to 

informally resolve the problem with the allegedly offending staff, and then 

may file a Step I grievance regarding any unresolved issues with a 

grievance coordinator. MDOC Policy Directive 03.02.130, ¶ P and R 

(effective July 9, 2007).3

 The prisoner may then file a Step II grievance 

appeal within ten days of receiving the Step I response or, if no response 

was received, within ten business days after the date the response was 

due. Id. at ¶ BB. The same schedule applies to a Step III appeal – it is due 

within ten business days of receiving the Step II response or, if no 

response was received, within ten business days after the date the 

response was due. Id. at ¶ FF. Prisoners must appeal their grievances 

through Step III and wait until receipt of a Step III response, or until the 

response is past due, before filing suit. 

Defendants argue that Colen could not have received a Step III 

response to a grievance involving Alford or Dr. Martin, as none of the 

recorded Step III grievances from June 2010 to the date of this suit referred 

to them, and his most recent Step III grievance was resolved on February 

 

3

 The Policy Directive is available at: 

https://www.michigan.gov/documents/corrections/03_02_130_200872_7.pdf

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14, 2014, which is before his allegations against Alford and Dr. Martin took 

place. [ECF No. 79, PageID 647; ECF No. 79-4]. Normally this requires 

dismissal. See, e.g., Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 

1999) (“[W]e must dismiss plaintiff’s complaint because he filed his federal 

complaint before allowing the administrative process to be completed”). 

Thus, defendants have satisfied their burden by showing that Colen had no 

completed grievances before the date this case was filed. 

Colen responds that he filed a grievance against Alford and Dr. 

Martin in May 2014, after returning from his knee replacement surgery, and 

that it was wrongfully rejected for being duplicative of another grievance. 

[ECF No. 86, PageID 1287]. This raises a question of fact, as an improper 

rejection would constitute exhaustion, allowing Colen to proceed with the 

case. Johannes v. Washington, No. 14-11691, 2016 WL 1253266, at *6 

(E.D. Mich. Mar. 31, 2016). The burden is on the defendants to “show that 

every reasonable jury would think the rejections were proper.” Id. 

Defendants did not respond to this argument in their reply, so a question of 

fact exists regarding whether he has exhausted his administrative remedies 

with respect to that claim. 

C. 

 Colen seeks relief under Section 1983 for violations of his Eighth and 

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Fourteenth Amendment rights. [ECF No. 13, PageID 103-10]. Defendants 

argue that the complaint only puts forth Eighth Amendment claims. [ECF 

No. 79, PageID 648]. In response, Colen states that his equal protection 

and due process claims were “properly stated” in a grievance in which he 

alleged to have been treated differently than inmates of other races. [ECF 

No. 86, PageID 1290]. But these claims are not present in the complaint 

itself, and “[e]ven under our liberal pleading standards, a plaintiff must at 

least give the defendant fair notice of what the claim is and the grounds 

upon which it rests, by providing either direct or inferential allegations 

respecting all the material elements to sustain a recovery.” See In re 

Commonwealth Institutional Sec., Inc., 394 F.3d 401, 405 (6th Cir. 2005) 

(citations and internal quotation marks and brackets omitted). As a 

consequence, any claim not raised in the complaint cannot be considered, 

McColman v. St. Clair Cty., 479 F. App’x 1 (6th Cir. 2012), meaning that 

only his Eighth Amendment claims can be considered. 

The Eighth Amendment’s Cruel and Unusual Punishment Clause 

prohibits prison officials from inflicting “unnecessary and wanton infliction of 

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

(internal citations omitted). “‘Deliberate indifference’ by prison officials to 

an inmate’s serious medical needs constitutes ‘unnecessary and wanton 

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infliction of pain’ in violation of the Eight[h] Amendment’s prohibition against 

cruel and unusual punishment.” Miller v. Calhoun Cty., 408 F.3d 803, 812 

(6th Cir. 2005) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). 

A deliberate indifference claim has an objective and a subjective 

component. Comstock v. McCrary, 273 F.3d 693, 702 (6th Cir. 2001). The 

objective component requires a plaintiff to allege that the medical need at 

issue is “‘sufficiently serious.’” Id. at 702-03 (quoting Farmer v. Brennan, 

511 U.S. 825, 834 (1994)). “To satisfy 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 that risk.” Comstock, 273 F.3d at 703. However, a plaintiff 

does not have to show that the prison official acted “for the very purpose of 

causing harm or with knowledge that harm will result.” Farmer, 511 U.S. at 

835. Rather, a plaintiff need only show that the official “recklessly 

disregard[ed]” a substantial risk of serious harm. Id. at 836. 

Colen has alleged very little contact with some of the defendants in 

this matter. Alford is only mentioned once in the complaint, having seen 

him on two concurrent days in May 2014. [ECF No. 13, PageID 93]. She 

was allegedly unhelpful with his foot pain on the first day, and on the 

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second she sent him for x-rays of his foot after learning this had not yet 

been done. [Id.]. Dr. Martin and Dr. Sudhir each only saw Colen once, and 

while Dr. Martin is alleged to have caused Colen some pain while 

examining his foot, there are no claims made about Dr. Sudhir indicating 

that she caused any harm to Colen. [Id., PageID 91, 94]. In fact, Colen 

alleges that Dr. Sudhir correctly noted his previously broken foot, referred 

him to an orthopedic surgeon, and requested a wheelchair for him. [Id., 

PageID 91]. Similarly, Colen references only one meeting with Dr. Prasad 

in the complaint. [ECF No. 13, PageID 89]. Colen alleges that he was not 

thoroughly examined during this visit, and that he was “only” prescribed 

Tylenol and an ACE bandage. [Id.]. The medical record provided by 

defendants confirms these prescriptions, but also shows his Naprosyn 

prescription and that Dr. Prasad provided a detail for a cane to be issued. 

[ECF No. 81-1, PageID 933-35]. 

As to these defendants, there is no question that Colen cannot state 

a claim. Each of them was involved with his treatment, and he may have 

disagreed with the treatment provided, but this does not rise to the level of 

deliberate indifference. Mayfield v. Miles, No. 13-10341, 2015 WL 736421, 

at *3 (E.D. Mich. Feb. 20, 2015), aff'd (Dec. 21, 2015). See also Comstock 

v. McCray, 273 F.3d 693, 703 (6th Cir. 2002) (“The requirement that the 

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official have subjectively perceived a risk of harm and then disregarded it is 

meant to prevent the constitutionalization of medical malpractice claims; 

thus, a plaintiff alleging deliberate indifference must show more than 

negligence or the misdiagnosis of an ailment.”) (citing Farmer, 511 U.S. at 

834; Estelle, 429 U.S. at 106). Furthermore, accidentally causing Colen 

pain or discomfort during treatment is not cognizable under § 1983. 

Estelle, 429 U.S. at 105. 

Defendant Jindal was by far the most involved with Colen’s treatment, 

and had multiple visits with him yearly throughout the dates covered by the 

complaint. But the allegations against her, coupled with the facts she 

attested to by declaration, would not allow a reasonable jury to find her 

liable for deliberate indifference to Colen’s medical needs. [ECF No. 79-2]. 

Beginning with his first visit with Jindal, Colen blames her repeatedly for not 

being scheduled to see a doctor. [ECF No. 13, PageID 83]. Jindal admits 

that it is her responsibility to decide, using her medical judgment, if a 

patient needs to see a doctor or specialist. [ECF No. 79-2, PageID 668-

69]. Colen also repeatedly contends that his fractured right foot was 

misdiagnosed, while the record shows that Jindal, Dr. Brady and Colen’s 

other doctors, P.A.’s and nurses insist that his foot was not fractured. [ECF 

No. 79-2, PageID 659; ECF No. 79-3, PageID 692; ECF No. 81-1]. Dr. 

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Brady and Jindal also attest that his treatment would have been 

appropriate even in the instance of a fracture, and that said fracture would 

not have caused his now-diagnosed rheumatoid arthritis. [ECF No. 79-2, 

PageID 659; ECF No. 79-3, PageID 692]. 

Colen disagrees with the treatment he received from Jindal, but this 

largely stems from the alleged misdiagnosis, and any such disagreement 

with treatment and misdiagnosis does not constitute deliberate indifference. 

Mayfield, 2015 WL 736421, at *3; Comstock, 273 F.3d at 703. Even a 

difference of opinion among doctors is generally insufficient to state a claim 

of deliberate indifference. Colwell v. Corizon Healthcare Inc., No. 11-CV15586, 2014 WL 6686764, at *22 (E.D. Mich. Nov. 26, 2014), aff'd (Oct. 7, 

2015). Colen was provided with medical care for his knee and foot 

throughout the time period containing his allegations, as documented by his 

complaint. Given the record of care, no reasonable jury could find that 

Jindal was deliberately indifferent to Colen’s serious medical needs. 

Colen alleges that Dr. Brady was responsible for the lack of cortisone 

shots, which were at one time scheduled but later canceled. [ECF No. 13, 

PgID 90]. He also claims to have seen Dr. Brady on two occasions within 

one month in 2013, in which Dr. Brady chose to focus on his knee rather 

than his foot. [Id., PageID 90-91]. Dr. Brady allegedly acknowledged that 

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his foot had been previously broken in the latter meeting. [Id., PageID 91]. 

Dr. Brady denies this, stating that Colen did have “old healed trauma” in his 

foot, but that it was not necessarily a fracture, and that no further treatment 

would have been indicated even if it had been a fracture. [ECF No. 79-3, 

PageID 685]. Colen has not provided evidence rebutting Dr. Brady’s 

attestation that, even with a prior fracture, no treatment was warranted 

other than what he received. 

Lastly, Colen claims that Corizon is also liable for his alleged 

mistreatment. [ECF No. 13, PageID 116-17]. “As a contracted provider of 

prison health services, Corizon acted in the capacity of a governmental 

actor.” Edwards v. Prasad, No. 15-CV-11424, 2016 WL 7115959, at *6 

(E.D. Mich. Oct. 31, 2016), report and recommendation adopted, No. 15-

CV-11424, 2016 WL 7100492 (E.D. Mich. Dec. 6, 2016). Municipal liability 

arises only where “the challenged conduct occurs pursuant to a 

municipality's ‘official policy’ such that the municipality's promulgation or 

adoption of the policy can be said to have ‘caused’ one of its employees to 

violate the Plaintiff's constitutional rights.” D'Ambrosio v. Marino, 747 F.3d 

378, 386 (6th Cir. 2014) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 

658, 692 (1978)). Here, for the reasons stated above, Colen has not 

established that his constitutional rights have been violated. Furthermore, 

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the allegation in his response that Corizon’s policy or custom of directing 

“shot in the dark” diagnoses is unsupported by any evidence or examples 

beyond what he alleges happened to him personally. Colen “may not ‘rely 

on the hope that the trier of fact will disbelieve the movant's denial of a 

disputed fact’ but must make an affirmative showing with proper evidence 

in order to defeat the motion.” Alexander, 576 F.3d at 558 (quoting Street v. 

J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989)). 

 As a final note, the statute of limitations bars some of Colen’s Eighth 

Amendment claims. The applicable statute of limitations for a Section 1983 

civil rights action is “the state statute of limitations governing actions for 

personal injury.” McCune v. City of Grand Rapids, 842 F.2d 903, 905 (6th 

Cir. 1988). The Sixth Circuit has held that Michigan’s three-year limitations 

period for personal injury claims is the appropriate statute of limitations for 

§ 1983 actions that arise in Michigan. Drake v. City of Detroit, Michigan, 

266 F.App’x 444, 448 (6th Cir. 2008) (citing Mich. Comp. Laws. § 

600.5805(10)). This limitations period bars Colen’s claims against Jindal 

before July 25, 2011, as well as any derivative claims against Corizon 

arising from her actions before that date. Colen argues that the statute of 

limitations should be tolled from when he reasonably became aware of or 

knew of the injury, but he provides no authority to allow tolling, and 

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Michigan has essentially eliminated the application of equitable tolling. 

Trentadue v. Buckler Lawn Sprinkler, 479 Mich. 378, 407(2007); Chandler 

v. Wackenhut Corp., 465 F. App’x 425, 431 (6th Cir. 2012) (after 

Trentadue, “courts have applied the doctrine in the statute-of-limitations 

context only to cases involving a defendant who led the plaintiff to believe 

that the limitations period would not be enforced.”). 

 For these reasons, Colen’s Section 1983 claims should be dismissed. 

D.

 Colen also brought state law claims of intentional infliction of 

emotional distress, battery, and gross negligence against the defendants, 

but they argue that his claims sound in and should be treated as medical 

malpractice, and subject to Michigan’s statutory requirements for such 

claims. In Michigan, a claim sounds in medical malpractice if it “pertains to 

an action that occurred within the course of a professional relationship,” 

and “raises questions of medical judgment beyond the realm of common 

knowledge and experience.” Bryant v. Oakpointe Villa Nursing Ctr., 471 

Mich. 411, 422 (2004). If so, “the action is subject to the procedural and 

substantive requirements that govern medical malpractice actions.” 

 The Court agrees that Colen’s state law claims sound in medical 

malpractice. The dispute centers around whether Colen was properly 

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diagnosed and treated at various times by various health care providers 

within his course of treatment for an injured knee and foot. A jury would 

require expert guidance in order to decide in favor of either party, as the 

answer would require medical judgment that the lay juror simply does not 

have. However, defendants’ contention that the case may be simply 

dismissed for failure to file the required “affidavit of merit” for medical 

malpractice cases under M.C.L. § 600.2912d is not as simple as they make 

it out to be. 

 In deciding a state-law claim in federal court, the court applies state 

law for substantive issues, and federal law for procedural ones. Erie R.R. 

Co. v. Tompkins, 304 U.S. 64 (1938). Whether a claim for gross 

negligence or on other state-law grounds actually sounds in state-law 

medical malpractice is a substantive issue subject to, in this case, Michigan 

law. Jones v. Corr. Med. Servs., Inc., 845 F. Supp. 2d 824, 845 (W.D. 

Mich. 2012). But the “affidavit of merit” requirement is procedural, and thus 

not required in federal court claims. Stojcevski v. Cty. of Macomb, 143 F. 

Supp. 3d 675, 693 (E.D. Mich. 2015), reconsideration denied, No. CV 15-

11019, 2016 WL 2893016 (E.D. Mich. May 18, 2016) citing Long v. Adams, 

411 F.Supp.2d 701, 705 (E.D. Mich. 2006).4

 The state law claims should 

 

4 But see Jones, 845 F. Supp. 2d at 855, finding that the affidavit 

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therefore not be dismissed for their lack of an affidavit of merit. 

But as Colen has no remaining claims based on federal law, the 

Court must determine whether to exercise supplemental jurisdiction of the 

state law claims under 28 U.S.C. § 1367. See Campanella v. Commerce 

Exch. Bank, 137 F.3d 885, 892–93 (6th Cir. 1998 ). Under § 1367(c)(3), 

the Court may decline to exercise supplemental jurisdiction over the 

remaining state law claims. Musson Theatrical, Inc. v. Fed. Express Corp., 

89 F.3d 1244, 1254–55 (6th Cir. 1996 ) (“When all federal claims are 

dismissed before trial, the balance of considerations usually will point to 

dismissing the state law claims.”). Here, there is no compelling reason to 

retain supplemental jurisdiction over Colen’s state law claims. 

IV. CONCLUSION 

For the foregoing reasons, defendants’ motion for summary judgment 

should be GRANTED, Colen’s federal claims should be DISMISSED WITH 

PREJUDICE, and the Court should decline to exercise supplemental 

 

requirement is not a pleading or part of a pleading and is not in conflict with 

the federal rules. The Jones court found that not applying the requirement 

could lead to forum-shopping and inequitable administration of the laws. 

But Barnett v. Hidalgo, 478 Mich. 151, 161 (2007), described the affidavit of 

merit as “part of the pleadings,” and M.C.L. § 600.2912d requires the 

affidavit to be filed concurrently with the complaint. In federal court, this 

conflicts with Federal Rule of Civil Procedure 8(a), which sets forth the only 

rules governing non-heightened pleadings in federal court. See Long v. 

Adams, 411 F. Supp. 2d at 707 (E.D. Mich. 2006). Thus, this Court agrees 

with Long that the affidavit should not be required in federal court. 

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jurisdiction over Colen’s state-law claims and DISMISS them WITHOUT 

PREJUDICE. 

 s/Elizabeth A. Stafford_______ 

 ELIZABETH A. STAFFORD 

 United States Magistrate Judge 

Dated: January 18, 2017 

NOTICE TO THE PARTIES REGARDING OBJECTIONS 

 Either party to this action may object to and seek review of this 

Report and Recommendation, but must act within fourteen days of service 

of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and Fed. R. Civ. 

P. 72(b)(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. 

Secretary of HHS, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 

638 F.2d 947 (6th Cir. 1981). Filing objections which raise some issues but 

fail to raise others with specificity will not preserve all objections that party 

might have to this Report and Recommendation. Willis v. Secretary of 

HHS, 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). A copy of any objection 

must be served upon this Magistrate Judge. E.D. Mich. LR 72.1(d)(2).

 Each objection must be labeled as “Objection #1,” “Objection #2,” 

etc., and must specify precisely the provision of this Report and 

Recommendation to which it pertains. Not later than fourteen days after 

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service of objections, the non-objecting party must file a response to 

the objections, specifically addressing each issue raised in the objections in 

the same order and labeled as “Response to Objection #1,” “Response to 

Objection #2,” etc. The response must be concise and proportionate in 

length and complexity to the objections, but there is otherwise no page 

limitation. If the Court determines that any objections are without merit, it 

may rule without awaiting the response. 

CERTIFICATE OF SERVICE

 The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s ECF 

System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on January 18, 2017. 

 

 s/Marlena Williams 

 MARLENA WILLIAMS 

 Case Manager 

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