UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

DAVID WYGOCKI, 

 Plaintiff, CIVIL ACTION NO. 15-cv-12488 

 v. DISTRICT JUDGE ARTHUR J. TARNOW 

DR. LARSON, et al., MAGISTRATE JUDGE MONA K. MAJZOUB 

 Defendants. 

___________________________/ 

REPORT AND RECOMMENDATION

 Plaintiff David Wygocki, currently incarcerated at the Earnest C. Brooks Correctional 

Facility in Muskegon Heights, Michigan, filed this pro se civil rights action on July 13, 2015, 

pursuant to 42 U.S.C. § 1983, alleging that Defendants Dr. Larson and Licensed Practical Nurse 

Anne Dauter1 violated his rights as secured by the Eighth Amendment to the United States 

Constitution. (Docket nos. 1, 15.) This matter comes before the Court on Defendant Dauter’s 

Motion to Dismiss on Grounds of Qualified Immunity Under Federal Rule of Civil Procedure 

12((b)(6). (Docket no. 11.) Plaintiff has not responded to the Motion. This action has been 

referred to the undersigned for all pretrial purposes. (Docket no. 12.) The Court has reviewed 

the pleadings, dispenses with oral argument on the motion pursuant to Eastern District of 

Michigan Local Rule 7.1(f) and issues this Report and Recommendation pursuant to 28 U.S.C. 

§ 636(b)(1)(B). 

 

1

 Plaintiff misspelled Defendant Dauter’s last name as “Daughters” in the Complaint. (See docket nos. 1, 11.) 

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I. RECOMMENDATION 

 For the reasons that follow, it is recommended that Defendant Dauter’s Motion to 

Dismiss (docket no. 11) be GRANTED with regard to the dismissal of Plaintiff’s claims against 

her and DENIED with regard to her request for qualified immunity. 

II. REPORT

A. Background 

 This matter arises from a surgery that Plaintiff underwent to have his colostomy bag 

removed. (Docket no. 1. at 5.) Plaintiff asserts that after the surgery, he was suffering from 

severe diarrhea because he had not had a normal bowel movement in months. According to 

Plaintiff, Defendant Dauter witnessed two nurses’ aides cleaning Plaintiff and changing 

Plaintiff’s diaper, and she instructed them to stop doing so because there was nothing wrong with 

Plaintiff to prevent him from performing those activities himself. Plaintiff claims that Defendant 

Dauter’s actions caused his stomach stitches to rip open. Plaintiff alleges that Dr. Larson then 

cut the remaining stitches but never closed the wound back up, which resulted in serious and 

constant pain and a hideous scar. 

 Plaintiff lists cruel and unusual punishment, unusual and unnecessary pain, inadequate 

medical care and treatment, undue pain and suffering, gross negligence, and deliberate 

indifference due to sub-standard treatment as causes of action in his Statement of Claims. 

(Docket no. 1 at 5.) As relief, Plaintiff seeks 1.5 million dollars, reconstructive surgery, and 

legal fees. (Id. at 5-6.) Defendant Dauter now moves to dismiss Plaintiff’s claims against her 

pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief 

can be granted based on qualified immunity. (Docket no. 11.) 

 

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 B. Governing Law

 A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the 

sufficiency of a complaint. The court must “construe the complaint in the light most favorable to 

the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the 

plaintiff.” Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007); Inge v. Rock Fin. Corp., 

281 F.3d 613, 619 (6th Cir. 2002). To survive a Rule 12(b)(6) motion to dismiss, the 

complaint’s “[f]actual allegations must be enough to raise a right to relief above the speculative 

level on the assumption that all the allegations in the complaint are true.” Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544, 555 (2007) (internal citations and emphasis omitted). See also Ass’n of 

Cleveland Fire Fighters v. City of Cleveland, Ohio, 502 F.3d 545, 548 (6th Cir. 2007). 

 This acceptance of factual allegations as true, however, is inapplicable to legal 

conclusions: “Threadbare recitals of the elements of a cause of action, supported by mere 

conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Thus, the 

court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Id.

(internal quotations and citations omitted). “[O]nly a complaint that states a plausible claim for 

relief survives a motion to dismiss.” Id. at 679. 

 “Determining whether a complaint states a plausible claim for relief [is] a contextspecific task that requires the reviewing court to draw on its judicial experience and common 

sense.” Id. To make this determination, a court may apply the following two-part test: (1) 

“identify[] pleadings that, because they are no more than conclusions, are not entitled to the 

assumption of truth;” and (2) “assume [the] veracity [of the remaining allegations] and then 

determine whether they plausibly give rise to an entitlement to relief.” Id. 

 

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C. Analysis 

To prevail on a § 1983 claim, a plaintiff must prove “that (1) a person, (2) acting under 

color of state law, (3) deprived the plaintiff of a federal right.” Berger v. City of Mayfield 

Heights, 265 F.3d 399, 405 (6th Cir. 2001) (citations omitted). There is no dispute that 

Defendant Dauter is a person who was acting under color of state law. Thus, the only remaining 

issue under a § 1983 analysis is whether she deprived Plaintiff of a constitutional right. 

Plaintiff asserts a violation of the Eighth Amendment’s prohibition against cruel and 

unusual punishment. “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 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 by Parks v. Madison Cnty. Fiscal Court, 22 F.3d 

653, 660 (6th Cir. 1994) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). “Among 

‘unnecessary and wanton’ inflictions of pain are those that are ‘totally without penological 

justification.” Rhodes v. Chapman, 452 U.S. 337, 346 (1981) (citing Gregg v. Georgia, 428 U.S. 

153, 183 (1976)). 

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

must satisfy two components: an objective component, and a subjective component. Villegas v. 

Metro. Gov’t of Nashville, 709 F.3d 563, 568 (6th Cir. 2013) (citing Harrison v. Ash, 539 F.3d 

510, 518 (6th Cir. 2008)). “Satisfying the objective component ensures that the alleged 

deprivation is sufficiently severe, while satisfying the subjective component ‘ensures that the 

defendant . . . acted with a sufficiently culpable state of mind.’” Quigley v. Toung Vinh Thai, 

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707 F.3d 675, 681 (6th Cir. 2013) (quoting Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir. 

2003)). 

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, 702-03 (6th 

Cir. 2001) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994))). A sufficiently serious 

medical need is “one that has been diagnosed by a physician as mandating treatment or one that 

is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” 

Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 897 (6th Cir. 2004) (citations omitted). 

Here, Plaintiff alleges that he was experiencing diarrhea post-colostomy-bag-removalsurgery and that when Defendant Dauter saw two nurses’ aides cleaning Plaintiff up and 

changing his diaper, she told them to stop because he was capable of doing it himself. (Docket 

no. 1 at 5.) Plaintiff seemingly alleges that his post-surgery medical care, specifically, assistance 

with personal care following a bowel movement, constituted a serious medical need. Plaintiff, 

however, does not allege that such assistance was ordered by a physician. And any argument 

that the need for such assistance was so obvious that even a lay person would recognize it is 

directly negated by Plaintiff’s allegation that Defendant Dauter, a licensed practical nurse, 

believed that Plaintiff could perform his own personal care. Furthermore, Plaintiff pleads no 

facts regarding the severity of his condition or his ability (or lack thereof) to care for himself that 

would lead a lay person to recognize that his post-surgery personal care following a bowel 

movement necessitated medical attention. Accordingly, Plaintiff has not alleged that his need for 

assistance with his personal care was “sufficiently serious.” 

Even if Plaintiff’s condition was sufficiently serious to satisfy the objective component of 

deliberate indifference, Plaintiff’s claim fails under the subjective component. To satisfy the 

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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 defendant 

“subjectively perceived facts from which to infer substantial risk to the [plaintiff],” (2) the 

defendant “did in fact draw that inference,” and (3) the defendant “then disregarded that risk.” 

Quigley, 707 F.3d at 681 (citations omitted). 

 Although Plaintiff alleges that Defendant Dauter’s actions caused his stomach stitches to 

rip open, Plaintiff does not allege that Defendant Dauter subjectively perceived and disregarded a 

substantial risk of harm to Plaintiff, let alone his stitches, if Plaintiff were to clean himself and 

change his own diaper following an incidence of diarrhea. According to Plaintiff, Defendant 

Dauter thought that Plaintiff was capable of handling his own personal care. Essentially, then, 

Plaintiff disagrees with Defendant Dauter’s medical judgment. But a difference in judgment 

between an inmate and prison medical personnel regarding what constitutes appropriate medical 

treatment does not give rise to a constitutional violation. Westlake v. Lucas, 537 F.2d 857, 860 

n. 5 (6th Cir. 1976)). Even construing the Complaint in the light most favorable to Plaintiff, 

Plaintiff’s allegations, at most, represent allegations of mere negligence, which are simply not 

sufficient to allow Plaintiff’s claim to proceed as a constitutional violation for deliberate 

indifference. See Jerauld ex rel. Robinson v. Carl, 405 F. App’x 970, 976 (6th Cir. 2010) 

(citation omitted) (“Deliberate indifference requires a degree of culpability greater than mere 

negligence.”). Plaintiff’s federal claims against Defendant Dauter should be dismissed on this 

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basis. Accordingly, to the extent that Plaintiff sets forth a state-law claim of gross negligence or 

negligence against Defendant Dauter, the court should decline to exercise supplemental 

jurisdiction over the claim pursuant to 28 U.S.C. § 1367(c)(3). See 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.”). 

 Lastly, Defendant Dauter asserts that she is entitled to qualified immunity because 

Plaintiff has failed to allege the violation of a constitutional right that is clearly established. 

Indeed, Plaintiff has failed to show that Defendant Dauter acted unconstitutionally, and where 

there is no constitutional violation, “the plaintiff’s § 1983 claim fails as a matter of law and the 

defendant . . . does not need qualified immunity.” Marvin v. City of Taylor, 509 F.3d 234, 244 

(6th Cir. 2007). 

 D. Conclusion

 For the reasons stated herein, it is recommended that the court GRANT Defendant 

Dauter’s Motion to Dismiss (docket no. 11) insofar as she seeks dismissal of Plaintiff’s claims 

against her, and DENY Defendant Dauter’s Motion insofar as she requests qualified immunity. 

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 Eastern District of Michigan 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, 149 (1985); Howard v. Sec’y of Health & Human Servs., 932 F.2d 505 (6th 

Cir. 1991); U.S. v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981). Filing of objections which 

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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: August 08, 2016 s/ Mona K. Majzoub 

 MONA K. MAJZOUB 

 UNITED STATES MAGISTRATE JUDGE 

PROOF OF SERVICE

 I hereby certify that a copy of this Report and Recommendation was served upon Plaintiff 

and counsel of record on this date. 

Dated: August 08, 2016 s/ Lisa C. Bartlett 

 Case Manager

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