1 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

WILLIE EDWARDS, 

 CIVIL ACTION NO. 2:15-cv-11424-PDB-PTM 

Plaintiff, DISTRICT JUDGE PAUL D. BORMAN 

v. MAGISTRATE JUDGE PATRICIA T. MORRIS 

 

ANIL PRASAD, 

GHULAM DASTGIR, & 

CORIZON HEALTH, INC. 

 

 Defendants. 

___________________________/ 

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION ON 

DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT (Docs. 40, 46)

I. RECOMMENDATION 

For the reasons set forth below, IT IS RECOMMENDED that Defendants’ 

Motions for Summary Judgment, (Doc. 40, 46), be GRANTED. 

II. REPORT 

A. Introduction 

Plaintiff Willie Edwards, a state prisoner, filed this pro se federal civil rights 

action under 42 U.S.C. § 1983 on April 16, 2015. (Doc. 1). Defendants Dr. Anil Prasad 

and Corizon Health, Inc. (“Corizon”) filed an Answer on June 29, 2015, and Defendant 

Ghulam Dastgir filed an Answer on February 9, 2016. (Docs. 18, 45). Plaintiff alleges 

that Prasad recommended he undergo “eye surgery to remove cataracts from his right 

eye,” and Plaintiff underwent such surgery on June 29, 2009. (Doc. 1 at 2-3). He further 

2:15-cv-11424-PDB-PTM Doc # 61 Filed 10/31/16 Pg 1 of 18 Pg ID 763
2 

alleges that the “two surgeries failed to improve eye sight” in his right eye. On July 7, 

2009, Plaintiff “underwent a third surgery” and suffered a “total retinal detachment.” 

(Doc. 1 at 3). His Complaint says that an “on-site optometrist informed [him] [on July 24, 

2010] that his right eye due to previous surgeries and complications that he is blind in his 

right eye and in the opinion of the optometrist, further treatment or surgery would 

unlikely produce improvement in visual function in the right eye.” (Id.). However, 

Plaintiff’s Response to Defendants’ Motion for Summary Judgment says he was 

informed of this on July 24, 2012. (Doc. 50 at 5). Although Plaintiff asserts that he “has 

been denied the medical care and from 2009 until the present,” he does not allege any 

action or inaction on the part of any person beyond the July 24, 2010 date. (Doc. 1 at 3). 

Defendants contend that Plaintiff’s complaint is barred by the three-year statute of 

limitations, and alternatively that they did not violate Plaintiff’s civil rights. 

Prasad and Corizon filed a Motion for Summary Judgment on January 22, 2016. 

(Doc. 40). Defendant Dastgir filed a Motion Joining to and Concurring in the other 

Defendants’ Motion on February 20, 2016. (Doc. 46). Plaintiff filed a Response, (Doc. 

50), and Defendants replied. (Docs. 51, 52). I issued a Report and Recommendation on 

June 23, 2016, (Doc. 54), urging District Judge Borman to dismiss the case for failure to 

state a claim within the applicable statute of limitations. 

Plaintiff filed an Objection to the Report and Recommendation on September 1, 

2016, suggesting error for “a dismissal based on . . . the statute of limitations argument.” 

(Doc. 58 at 3). In his submission, Plaintiff essentially reiterates allegations in his 

Complaint and Response. Defendants replied to Plaintiff’s Objection, noting that “the 

2:15-cv-11424-PDB-PTM Doc # 61 Filed 10/31/16 Pg 2 of 18 Pg ID 764
3 

U.S. Magistrate ruled on this matter as a Motion to Dismiss because Plaintiff failed to 

submit any evidence that would require a decision under the summary judgment standard. 

There is no evidence concerning ‘fraud’ in Plaintiff’s current objections as well. His brief 

is not sworn and neither was his response to the Motion for Summary Judgment.” (Doc. 

58 at 2-3). Thus, neither party objected to application of the motion to dismiss standard to 

the motion which was labeled as one for summary judgment. 

Conversion of a motion to dismiss into a motion for summary judgment can be 

problematic unless the parties are permitted a reasonable opportunity to present all 

material that is pertinent to such a motion. Fed. R. Civ. P. 12(d); Wysocki v. Int’l Bus. 

Mach. Corp., 607 F.3d 1102, 1104 (6th Cir. 2010). 

However, analyzing a motion for summary judgment under the motion to dismiss 

standard does not present the same concerns. “Where appropriate, a trial judge may 

dismiss for failure to state a cause of action upon motion for summary judgment”; when 

done, the judgment “is functionally the same as a motion to dismiss or a motion for 

judgment on the pleadings.” Schwartz v. Compagnie Gen. Transatlantique, 405 F.2d 270, 

273 (2d Cir. 1968) (quoting 6 Moore’s Federal Practice, P56.02(3), p. 2035) (internal 

quotation marks omitted); accord Murphy v. Gibson, 765 F.2d 145, at *1 (6th Cir. 1985). 

Therefore, the Court was within its discretion to analyze the motion under the 

motion to dismiss standard. In addition, because this case is one filed by a person who 

was granted in forma pauperis (“IFP”) status, the Court also had authority under 28 

U.S.C. 1915(e)(2)(B)(ii), which mandates dismissal of an IFP complaint “at any time if 

the court determines that . . . the action or appeal . . . fails to state a claim on which relief 

2:15-cv-11424-PDB-PTM Doc # 61 Filed 10/31/16 Pg 3 of 18 Pg ID 765
4 

may be granted.” Though I did not expressly cite 28 U.S.C. § 1915 in my Report and 

Recommendation, I note that other courts regularly construe similar orders as an implicit 

exercise of this statutory authority. See O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 

2008) (“Because [28 U.S.C. 1915(e)(2)(B)] impose[s] a mandatory duty, we construe a 

district court’s termination of an in forma pauperis complaint during the screening 

process for a reason enumerated [there]in.”); see also Levin v. OMSNIC, 573 F. App’x 

142, 143 n.1 (3d Cir. 2014) (construing the district court’s dismissal “as one under 28 

U.S.C. § 1915(e)(2)(b)(ii)” where the judge sua sponte dismissed a plaintiff’s complaint 

for failure to state a claim); Pearson v. Prison Health Servs., 348 F. App’x 722, 724 n.1 

(3d Cir. 2009) (“The District Court did not specify the statute or rule under which it 

dismissed Pearson’s complaint. The District Court concluded that Pearson’s complaint 

fails to state a federal claim, so it could have dismissed it under 28 U.S.C. § 

1915(e)(2)(B)(ii) . . . . [and] we construe the dismissal as one under § 1915(e)(2)(B)(ii)”); 

Amour v. McCalla, 16 F. App’x 305, 305 (6th Cir. 2001) (construing the district court’s 

dismissal “as pursuant to . . . § 1915(e)(2)(B)” where the judge “simultaneously granted 

pauper status” and “dismissed the action as frivolous”); White v. Gunn, 238 F.3d 433, at 

*1 n.3 (9th Cir. 2000) (“Because defendants argued that they were entitled to summary 

judgment as to White’s due process claim, we construe the district court’s dismissal as a 

sue sponte [sic] dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a 

claim upon which relief can be granted.”); Blum v. Fed. Bureau of Prisons, 189 F.3d 577, 

at *1 (10th Cir. 1999) (“We construe the dismissal of Blum’s § 2241 petition as a 

dismissal for frivolousness under 28 U.S.C. § 1915(e)(2)(B)(i) because . . . he was 

2:15-cv-11424-PDB-PTM Doc # 61 Filed 10/31/16 Pg 4 of 18 Pg ID 766
5 

proceeding in forma pauperis; . . . [and] the district court found most of Blum’s claims 

‘without merit.’”); cf. Thompson v. Drug Enf’t Admin., 492 F.3d 428, 436 (D.C. Cir. 

2007) (“[W]e can easily imagine a case in which an appellate court expressly states that 

an appeal was frivolous but erroneously styles its disposition as an affirmance rather than 

as a dismissal. In such a case, we expect that the reviewing court would regard the earlier 

disposition as a constructive dismissal under section 1915(e)(2).”); Holloway v. Smith, 

253 F.3d 700, at *1 (5th Cir. 2001) (per curiam) (“Although the district court dismissed . 

. . under 28 U.S.C. § 1915(e)(2)(B)(i), we note that Holloway was not proceeding in 

forma pauperis . . . . We construe the dismissal of his claims as frivolous under 28 U.S.C. 

§ 1915A(b)(1).”). 

District Judge Borman rejected and remanded my Report and Recommendation 

with instructions that “it was completely inappropriate in this instance to treat 

Defendants’ Rule 56 motions as anything other than summary judgment motions,” and 

that Rule 12(b)(6) was “completely inapplicable.” (Doc. 60 at 2). For this reason, I 

discuss the Defendants’ Motions for Summary Judgment under the summary judgment 

standards below. 

B. Summary Judgment Standard of Review 

When a movant shows that “no genuine dispute as to any material fact” exists, the 

court will grant her motion for summary judgment. Fed. R. Civ. P. 56(a). In reviewing 

such motion, the court must view all facts and inferences in the light most favorable to 

the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 

587 (1986). The moving party bears “the initial burden of showing the absence of a 

2:15-cv-11424-PDB-PTM Doc # 61 Filed 10/31/16 Pg 5 of 18 Pg ID 767
6 

genuine issue of material fact as to an essential element of the non-movant’s case.” Street 

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

Cartrett, 477 U.S. 317, 323 (1986)) (internal quotation marks omitted). In making its 

determination, a court may consider the plausibility of the movant’s evidence. 

Matsushita, 475 U.S. at 587-88. Summary judgment is also proper where the moving 

party shows that the non-moving party cannot meet its burden of proof. Celotex, 477 U.S. 

at 325. 

The non-moving party cannot rest merely on the pleadings in response to a motion 

for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 

Instead, the nonmoving party has an obligation to present “significant probative 

evidence” to show that “there is [more than] some metaphysical doubt as to the material 

facts.” Moore v. Philip Morris Cos., 8 F.3d 335, 339-40 (6th Cir. 1993). The non-movant 

cannot withhold evidence until trial or rely on speculative possibilities that material 

issues of fact will appear later. 10B Charles Alan Wright & Arthur R. Miller, Federal 

Practice and Procedure § 2739 (3d ed. 1998). “[T]o withstand a properly supported 

motion for summary judgment, the nonmoving party must identify specific facts and 

affirmative evidence that contradict those offered by the moving party.” Cosmas v. Am. 

Express Centurion Bank, 757 F. Supp. 2d 489, 492 (D. N.J. 2010). In doing so, the 

nonmoving party cannot simply assert that the other side’s evidence lacks credibility. Id.

at 493. And while a pro se party’s arguments are entitled to liberal construction, “this 

liberal standard does not, however, ‘relieve [the party] of his duty to meet the 

requirements necessary to defeat a motion for summary judgment.’” Veloz v. New York, 

2:15-cv-11424-PDB-PTM Doc # 61 Filed 10/31/16 Pg 6 of 18 Pg ID 768
7 

339 F. Supp. 2d 505, 513 (S.D. N.Y. 2004) (quoting Jorgensen v. Epic/Sony Records, 

351 F.3d 46, 50 (2d Cir. 2003)). “[A] pro se party’s ‘bald assertion,’ completely 

unsupported by evidence, is not sufficient to overcome a motion for summary judgment.” 

Lee v. Coughlin, 902 F. Supp. 424, 429 (S.D. N.Y. 1995) (quoting Carey v. Crescenzi, 

923 F.2d 18, 21 (2d Cir. 1991)). 

When the non-moving party fails to adequately respond to a summary judgment 

motion, a district court is not required to search the record to determine whether genuine 

issues of material fact exist. Street, 886 F.2d at 1479-80. The court will rely on the “facts 

presented and designated by the moving party.” Guarino v. Brookfield Twp. Trs., 980 

F.2d 399, 404 (6th Cir. 1992). After examining the evidence designated by the parties, 

the court then determines “‘whether the evidence presents a sufficient disagreement to 

require submission to a jury or whether it is so onesided that one party must prevail as a 

matter of law.’” Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1310 (6th 

Cir. 1989) (quoting Anderson, 477 U.S. at 251-52). Summary judgment will not be 

granted “if the evidence is such that a reasonable jury could return a verdict for the 

nonmoving party.” Anderson, 477 U.S. at 248. 

C. Analysis and Conclusion 

1. There Is No Genuine Issue of Material Fact as to Whether 

Plaintiff’s Claims are Time-Barred 

 Federal courts apply state personal injury statutes of limitations to claims brought 

under 42 U.S.C. § 1983. Wilson v. Garcia, 471 U.S. 261, 276 (1985); Harris v. United 

States, 422 F.3d 322, 331 (6th Cir. 2005). For civil rights suits filed in Michigan, the 

2:15-cv-11424-PDB-PTM Doc # 61 Filed 10/31/16 Pg 7 of 18 Pg ID 769
8 

statute of limitations is three years. Mich. Comp. Laws § 600.5805(10); Elrod v. Hawry, 

53 F. App’x 770, 771 (6th Cir. 2002); Carroll v. Wilkerson, 782 F.2d 44, 44-45 (6th Cir. 

1986). Although statutes of limitations are governed by state law, the question of when 

civil rights claims accrue remains one of federal law. Wallace v. Kato, 549 U.S. 384, 388 

(2007) (“While we have never stated so expressly, the accrual date of a § 1983 cause of 

action is a question of federal law that is not resolved by reference to state law.”); Eidson 

v. State of Tenn. Dep’t of Children’s Servs., 510 F.3d 631, 635 (6th Cir. 2007). A cause 

of action accrues when the plaintiff knows or has reason to know of the injury that is the 

basis of the action. Friedman v. Estate of Presser, 929 F.2d 1151, 1159 (6th Cir. 1991). 

Defendants contend that Plaintiff’s claims are “barred by the statute of limitations” 

because he “knew of his injury” by December 7, 2009, and “[e]ven if he was confused, 

an optometrist explained the condition of his right eye on July 24, 2010.” (Doc. 40 at 21). 

Indeed, Plaintiff’s complaint describes an on-site optometrist informing him on July 24, 

2010 “that his right eye due to previous surgeries and complications . . . is blind . . . [and] 

further treatment or surgery would unlikely produce improvement in visual function.” 

(Doc. 1 at 3). As support for their claim, Defendants cite Plaintiff’s complaint. (Doc. 40 

at 21); (Doc. 1 at 3). 

 It appears that Defendants are correct that Plaintiff’s cause of action accrued on 

July 7, 2009, when Plaintiff underwent a third eye surgery and suffered a total retinal 

detachment. (Doc. 1 at ID 3.) Plaintiff states that on July 24, 2010, he was informed that 

“due to his previous surgeries and complications that he is blind in his right eye and in 

2:15-cv-11424-PDB-PTM Doc # 61 Filed 10/31/16 Pg 8 of 18 Pg ID 770
9 

the opinion of the optometrist, further treatment or surgery would unlikely produce 

improvement in visual function in the right eye.” Id. Therefore, as of July 24, 2010, 

Plaintiff was aware that his injury was permanent and not likely to be resolved in any 

way. Even if the Court were to use this more generous date of July 24, 2010, as the 

accrual date, Plaintiff’s complaint is far from timely since it was not filed until April 16, 

2015, nearly five years later. 

Although Plaintiff’s response to the motion raises, in the argument section, either a 

typographical error or the possibility that July 24, 2012 was the date he “was told . . . due 

to previous surgeries and complications that [his] right eye is blind and that no surgery or 

treatment would improve eye sight [sic]” (Doc. 50 at 5), he also identifies July 24, 2010 

as the relevant date in the same Response. (Id. at 5). I suggest that an issue of fact cannot 

be created by a single reference to later date in a response to the motion, especially where 

the earlier date is also cited in the same response. I therefore recommend that summary 

judgment be granted on this ground. 

2. Defendants Are Also Entitled to Summary Judgment Because 

the Evidence Does Not Show a Violation of Plaintiff’s Eighth 

Amendment Rights 

In Estelle v. Gamble, the Supreme Court held “that deliberate indifference to 

serious medical needs of prisoners” violates the Eighth Amendment’s Cruel and Unusual 

Punishment Clause because it constitutes the “unnecessary and wanton infliction of 

pain’” and is “repugnant to the conscience of mankind” by offending our “evolving 

standards of decency.” 429 U.S. 97, 104 (1976) (quoting Gregg v. Georgia, 428 U.S. 97, 

2:15-cv-11424-PDB-PTM Doc # 61 Filed 10/31/16 Pg 9 of 18 Pg ID 771
10 

104 (1976)). To establish a cognizable claim, Plaintiff’s allegations must show 

Defendant’s ‘sufficiently harmful’ acts or omissions. Id. at 106. “[I]nadvertent failure to 

provide adequate medical care . . . will not violate the Constitution.” Id. 

The ‘deliberate indifference’ inquiry incorporates objective and subjective 

elements. Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citing Wilson v. Seiter, 501 U.S. 

294, 298 (1991)). The objective inquiry asks whether the deprivation was “sufficiently 

serious,” which a claimant satisfies where it “has been diagnosed by a physician as 

mandating treatment or . . . is so obvious that even a lay person would easily recognize 

the necessity for a doctor’s attention.” Blackmore v. Kalamazoo Cty., 390 F.3d 890, 897 

(6th Cir. 2004) (quoting Gaudreault v. Municipality of Salem, 923 F.2d 203, 208 (1st Cir. 

1990)) (internal quotation marks omitted). The subjective inquiry considers whether 

official’s state of mind was sufficiently culpable; it requires a showing that an official 

“knows of and disregards an excessive risk to inmate health or safety.” Harrison v. Ash, 

539 F.3d 510, 518 (6th Cir. 2008) (quoting Farmer, 511 U.S. at 837) (internal quotation 

marks omitted). “[T]he official must both be aware of the facts from which the inference 

could be drawn that a substantial risk of harm exists, and he must also draw the 

inference.” Id. 

a. Prasad and Dastgir1

                                                            

1

 I discuss Plaintiff’s claims against Prasad and Dastgir simultaneously for convenience, 

as the grounds for granting summary judgment in their favor rests solely on arguments 

presented in Prasad’s and Corizon’s Motion. Although Dastgir presents several other 

arguments as to why summary judgment in his favor is appropriate in his Joinder to and 

Concurrence in Prasad’s and Corizon’s Motion, (Doc. 46), I decline to reach these 

arguments. 

2:15-cv-11424-PDB-PTM Doc # 61 Filed 10/31/16 Pg 10 of 18 Pg ID 772
11 

Plaintiff contends he “is completely and permanently blind in his right eye as a 

result of the inadequate surg[e]ries by Dr. Ghulam Dastgir,” and casts blame on Prasad, 

who “recommended [Plaintiff] for eye surgery to remove cataracts.” (Doc. 1 at 2-3). In 

his Response to Defendants’ Motion for Summary Judgment, Plaintiff further claims that 

he “complain[ed] th[at] he could not see anything out of his right eye” after a “fight,” 

which “’prov[es] that the doctors should have known th[at] there were other 

complications with the [P]laintiff[’]s right eye but ignored all other warning signs 

including [P]laintiff constantly complaining about [his] problem[s].” (Doc. 50 at 6). 

Generously interpreted, Plaintiff seems to claim that his doctors’ defective surgeries and 

advice required further, and perhaps more damaging, surgery. (Id. at 4) (“Only after the 

surgery they said there is a problem and my sight would eventually return but on . . . the 

next day [my] eye was hurting so bad until I had to be rushed back t[o] the hospital to 

have surgery again. On [July 7, 2009] [P]laintiff was sent . . . to have surgery again.”). If 

his doctors had “done more testing on [him] before eye surgery,” the trauma may not 

have happened. (Id. at 4-5). 

Although Plaintiff’s condition is serious, the record shows no serious dereliction 

of duty on the part of Prasad, and certainly nothing rising to the level of deliberate 

indifference. As he notes, “[t]o [his] knowledge, none of the off-site providers who 

evaluated Mr. Edwards [Plaintiff] on May 22, 2009 informed any of the onsite providers 

at Gus Harrison that Mr. Edwards suffered a detached retina,” and he “followed all the 

recommendations of TLC Eye Clinic.” (Doc. 41, Ex. B at 6). A follow-up on May 26, 

2009 revealed “non-serious condition[s],” and another physician “did not note any 

2:15-cv-11424-PDB-PTM Doc # 61 Filed 10/31/16 Pg 11 of 18 Pg ID 773
12 

indication of a retinal detachment.” (Id. at 7). Although Plaintiff contends that he was 

“placed in Segregation or hole and told that his eye [w]as ok,” (Doc. 50 at 2), Prasad 

notes that “[Plaintiff] denied any medical problems [on June 2, 2009] when he transferred 

into segregation.” (Doc. 41, Ex. B at 7); Doc. 42-1 at 52). He first learned Plaintiff 

suffered a loss of vision in his right eye “after the fight” on May 22, 2009, and he 

promptly referred Plaintiff to TLC and “drafted a retroactive consultation request to 

Corizon for offsite consultation.” (Doc. 41, Ex. B at 5); (Doc. 42-1 at 31). He did this 

again on July 27, 2009 when Plaintiff “reported that he could not stop rubbing his eye 

due to the itching and burning.” (Doc. 41, Ex. B at 12); (Doc. 42-1 at 150). At no point 

does the record evidence abnormal “delay” in Prasad’s “care,” and Prasad correctly notes 

that referring a patient to a specialist for evaluation in emergency circumstances “is 

appropriate and within the standard of care for a general practitioner.” (Id. at 17). 

Prasad’s sworn account, as corroborated by Plaintiff’s medical records, shows nothing 

rising to the level of deliberate indifference to Plaintiff’s treatment. Cf. Flanory v. Bonn, 

604 F.3d 249, 255 (6th Cir. 2010) (“Flanory also alleges not only a toothache and 

resulting tooth extraction, but also a gum disease that developed as a result of not having 

had toothpaste with which to brush his teeth for almost a year. Denying an inmate 

toothpaste for 337 days bespeaks an indifference to basic hygiene needs.”); Blackmore, 

390 F.3d at 899 (“When prison officials are aware of a prisoner’s obvious and serious 

need for medical treatment and delay medical treatment . . . for non-medical reasons, 

their conduct in causing the delay creates the constitutional infirmity.”); Shehee v. 

Saginaw Cty., 86 F.Supp.3d 704, 714 (E.D. Mich. 2015) (“Lloyd’s practices of limited 

2:15-cv-11424-PDB-PTM Doc # 61 Filed 10/31/16 Pg 12 of 18 Pg ID 774
13 

contact, occasional care, and phoned-in treatment did not display the subjective disregard 

for Shehee’s well being [sic] that characterizes deliberate indifference.”). 

Likewise, Defendants’ evidence tends to exculpate Dastgir’s conduct. Dastgir 

“fully and thoroughly explain[ed] all of the risks and benefits” of a cataract operation on 

April 14, 2009, and Plaintiff consented. (Doc. 42-2 at 1-2). After his fight, Plaintiff did 

not tell Lynn VanAusdale, RN, that he could not see, as only “a very superficial 

laceration over the eye lid” was recorded; he was given ice. (Id. at 22-23). Plaintiff 

reported vision loss the next day. (Id. at 31). Dastgir nevertheless responded with alacrity 

in each emergency situation that arose. (Doc. 41, Ex. B at 9-10, 11, 12); (Doc. 42-1 at 

106). When Plaintiff presented Dastgir, post-surgery, with the “surpris[ing]” information 

that he “was hit extremely hard with a fist in the eye and completely lost vision” days 

before his cataract surgery, Dastgir diagnosed a total retinal detachment. (Doc. 42-1 at 

121). He also realized that such injury had “lead[] to all of the complications during the 

surgery,” and recommended follow-up treatment (Id.). In this manner, Plaintiff’s 

omission imperiled his own surgery, through no fault of Dastgir. Plaintiff also frequently 

exacerbated his injuries by “rubb[ing] [his] eye extremely hard and br[ea]k[ing] the 

stitches.” (Id. at 106); see also (Id. at 150) (“P[atien]t states inability to stop rubbing the 

eye due to itching and burning.”). Yet Plaintiff’s doctors—particularly Dastgir and 

Prasad—responded accordingly in each instance. Even if their treatment qualified as 

“negligent,” as Plaintiff suggests, (Doc. 50 at 3), “[m]edical malpractice does not become 

a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 

106. 

2:15-cv-11424-PDB-PTM Doc # 61 Filed 10/31/16 Pg 13 of 18 Pg ID 775
14 

Plaintiff includes another charge in his Response that “Prasad and [] Ghulam 

intentionally and knowingly mislead [P]laintiff into believing that his eye sight would 

return in an attempt to keep [P]laintiff from filing a Civil Lawsuit Action against them or 

for the statute [of] limitation[s] to run out.” (Doc. 50 at 5). 

As a preliminary matter, I note that Plaintiff did not include or allude to these 

allegations in his complaint. Although this could arguably disqualify such allegations 

from consideration absent a formal request for leave to amend, the permissive pleading 

standards governing cases filed pro se advise instead to regard these allegations “as a 

supplement” to Plaintiff’s complaint. Coleman v. Gullet, No. 12-10099, 2012 WL 

5986779, at *11 (E.D. Mich. Sept. 4, 2012); see also Wright v. Sodexho Marriott Servs., 

30 F. App’x 566, 566 (6th Cir. 2002) (“On reconsideration, the district court 

acknowledged Wright’s response and considered the additional allegations within it, . . .); 

JAT, Inc. v. Nat’l City Bank of Midwest, 460 F.Supp.2d 812, 818 (E.D. Mich. 2006) 

(“Where Plaintiffs are not attempting to plead new causes of action against Defendants, 

but are merely providing additional support to their initial pleading, this Court is inclined 

to allow an implicit motion to amend at this stage.”). 

Prasad certifies that “I do not recall making . . . promises” that surgery would 

restore Plaintiff’s sight. (Doc. 41, Ex. B at 18). And because Plaintiff left the correctional 

facility in December 2010 and was under the care of other providers thereafter, there is 

no evidence to suggest that Prasad and Dastgir “intentionally and knowingly” mislead 

Plaintiff following his departure. Rather, the evidence shows that Prasad and Dastgir 

merely attempted to restore Plaintiff’s eyesight, and ultimately failed. 

2:15-cv-11424-PDB-PTM Doc # 61 Filed 10/31/16 Pg 14 of 18 Pg ID 776
15 

b. Corizon 

Plaintiff alleges he “still experiences pain and swelling to his right eye and . . . 

Corizon Health, Inc., ha[s] denied him any other treatment for his continued pain and 

suffering to his right eye.” (Doc. 1 at 3). He reiterates this claim in his Response to 

Defendants’ Motion for Summary Judgment. (Doc. 50 at 6). In their Motions, Defendants 

first posit that “[n]one of [] Corizon’s employees violated [Plaintiff’s] constitutional 

rights.” (Doc. 40 at 23). Next, Defendants argue that Plaintiff “cannot identify a Corizon 

policy, procedure, or custom that caused . . . a constitutional violation.” (Id. at 24). 

As a contracted provider of prison health services, Corizon acted in the capacity of 

a governmental actor. See West v. Atkins, 487 U.S. 42, 53-54 (1988) (“[T]he inference to 

be drawn from Estelle is that the medical treatment of prison inmates by prison 

physicians is state action.”). Plaintiff cannot hold Corizon vicariously liable for its 

employees’ conduct. See Rouster v. Cty. of Saginaw, 749 F.3d 437, 453 (6th Cir. 2014) 

(“[P]rivate corporations cannot be held liable on the basis of respondeat superior or 

vicarious liability.”). As such, liability will only attach if Corizon itself was a “moving 

force” behind the “deprivation of [Plaintiff’s] federal right.” Kentucky v. Graham, 473 

U.S. 159, 166 (1985); accord Shadrick v. Hopkins Cty., 805 F.3d 724, 752 (6th Cir. 2015) 

(Griffin, J., dissenting on other grounds); Rouster, 749 F.3d at 453. 

As discussed, supra, Plaintiff provides no evidence that either Prasad or Dastgir 

violated his Eighth Amendment rights. Nor does evidence point to any other actors 

violating Plaintiff’s rights. But even if a constitutional violation were found, Plaintiff’s 

evidence must illustrate a “direct causal connection” between Corizon’s “policies or 

2:15-cv-11424-PDB-PTM Doc # 61 Filed 10/31/16 Pg 15 of 18 Pg ID 777
16 

customs” and his “constitutional injury.” Gray v. City of Detroit, 399 F.3d 612, 617 (6th 

Cir. 2005); accord Heyerman v. Cty. of Calhoun, 680 F.3d 642, 648 (6th Cir. 2012) 

(“[L]iability only attaches where a custom, policy, or practice attributable to the 

[government actor] was the ‘moving force’ behind the violation of the plaintiff’s 

constitutional rights.”); see also Shadrick, 805 F.3d at 737 (describing a culpable state of 

mind as “failing to train and supervise . . . nurses working within the jail environment”). 

Plaintiff makes no such allegation. At most, he suggests Corizon should be held liable 

because his doctors negligently treated his eye condition or “denied him any other 

treatment for his continued pain and suffering.” (Doc. 1 at 3). He does not go so far as to 

suggest that Corizon encouraged its employees—via practice, policy, or custom—to 

mislead or mistreat him. As Defendants note, Corizon approved Plaintiff’s many 

ophthalmologic evaluations, consultations, and medication requests, and did not deny 

him continued treatment. E.g. (Doc. 42-1 at 153-55, 168-70, 178, 253-56, 265, 266). 

Plaintiff also fails to “set forth any facts that there were prior instances of similar 

misconduct so as to show that [Corizon] was on notice that its training and supervision 

with respect to the use of . . . medical treatment was deficient.” Burgess v. Fischer, 735 

F.3d 462, 479 (6th Cir. 2013). Plaintiff might surmount this deficit if he could prove that 

Corizon had “final . . . authority” over the alleged constitutional violations. See id. at 479. 

But he attributes the bad acts at issue—namely, performing ineffective surgery and 

cradling Plaintiff’s concerns in order to avert civil liability—to Prasad and Dastgir alone. 

(Doc. 50 at 4-5). In any case, Corizon plainly did not display deliberate indifference 

towards a violation of Plaintiff’s Eighth Amendment rights. 

2:15-cv-11424-PDB-PTM Doc # 61 Filed 10/31/16 Pg 16 of 18 Pg ID 778
17 

For the reasons stated above, I recommend that Defendants’ Motions for Summary 

Judgment be granted. 

III. REVIEW 

 Pursuant to Rule 72(b)(2) of the Federal Rules of Civil Procedure, “[w]ithin 14 

days after being served with a copy of the recommended disposition, a party may serve 

and file specific written objections to the proposed findings and recommendations. A 

party may respond to another party’s objections within 14 days after being served with a 

copy.” Fed. R. Civ. P. 72(b)(2); see also 28 U.S.C. § 636(b)(1). 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). The parties are advised that 

making some objections, but failing to raise others, will not preserve all the objections a 

party may have to this Report and Recommendation. Willis v. Sec’y of Health & Human 

Servs., 931 F.2d 390, 401 (6th Cir. 1991); Dakroub 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 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. LR 72.1(d). The response must specifically address each 

issue raised in the objections, in the same order, and labeled as “Response to Objection 

2:15-cv-11424-PDB-PTM Doc # 61 Filed 10/31/16 Pg 17 of 18 Pg ID 779
18 

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: October 31, 2016 /s Patricia T. Morris 

 PATRICIA T. MORRIS 

 United States Magistrate Judge 

PROOF OF SERVICE 

The undersigned certifies that a copy of the foregoing order was served 

upon each attorney or party of record herein by electronic means or first 

class U.S. mail on October 31, 2016. 

 s/Michael A. Sian 

 MICHAEL A. SIAN, Acting Case Manager 

2:15-cv-11424-PDB-PTM Doc # 61 Filed 10/31/16 Pg 18 of 18 Pg ID 780