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Report and Recommendation

Motion to Dismiss 1 Robinson v. Caruso; 08-14069

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

HEATHER ROBINSON, Case No. 08-14069

Plaintiff, Lawrence P. Zatkoff

vs. United States District Judge

PATRICIA CARUSO, et al., Michael Hluchaniuk

United States Magistrate Judge

Defendants.

 /

REPORT AND RECOMMENDATION

MOTION TO DISMISS (Dkt. 27)

I. PROCEDURAL HISTORY

Plaintiff, an inmate currently at the Huron Valley Correctional Facility,

brings this action under 42 U.S.C. § 1983, claiming a violation of her rights under 1

the United States Constitution. (Dkt. 1). In her complaint, filed on September 22,

2008, plaintiff claims that she received inadequate medical and dental care. Id. 

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 Plaintiff sues Dr. Hutchinson in both his individual and official capacities. 

2

(Dkt. 1, p. 6).

Report and Recommendation

Motion to Dismiss 2 Robinson v. Caruso; 08-14069

Defendants Correctional Medical Services (CMS) and Dr. Craig Hutchinson, the 2

director of CMS (collectively, the CMS defendants), filed a motion to dismiss on

January 2, 2009. (Dkt. 27). Plaintiff filed a response on February 5, 2009. (Dkt.

46). The CMS defendants filed a reply on February 24, 2009. (Dkt. 48). On May

26, 2009, this case was referred to the undersigned for all pretrial purposes by

District Judge Lawrence P. Zatkoff. (Dkt. 60). 

The motion to dismiss is now ready for report and recommendation. For the

reasons set forth below, the undersigned RECOMMENDS that the CMS

defendants’ motion to dismiss be DENIED.

II. STATEMENT OF FACTS

A. Plaintiff’s Complaint

In her complaint, plaintiff alleges that CMS is under contract with the State

of Michigan to provide all medical and dental services to Michigan inmates,

including at the facility where plaintiff is housed. (Dkt. 1, ¶ 14). Plaintiff further

alleges that CMS is required to comply with all MDOC policy directives regarding

the delivery of health care services. (Dkt. 1, ¶ 14). Plaintiff alleges that defendant

Hutchinson is the Director of CMS and is responsible for the overall operation of

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Motion to Dismiss 3 Robinson v. Caruso; 08-14069

CMS, including medical staff at MDOC facilities. (Dkt. 1, ¶ 15). Plaintiff alleges

that various other defendants are or were CMS employees, including some

“unknown” nurses. (Dkt. 1, ¶¶ 17-22).

Plaintiff claims that Huron Valley Complex, the correctional facility at

which she was housed during the events in question houses approximately 900

women, but has only one dentist. (Dkt. 1, ¶ 25). Plaintiff has a history of enamel

erosion from untreated acid reflux and insufficient dental products and accessories

available in prison. (Dkt. 1, ¶ 26). Plaintiff began sending health care requests

(kites) in April 2005 on a monthly basis regarding her dental problems, including

pain and extreme sensitivity, a missing filling, a cavity, bleeding gums, enamel

erosion, exposed nerves, and difficulty eating. (Dkt. 1, ¶ 27). Plaintiff says that

no appointment was forthcoming. Because “dental” continued to deny treatment,

she began requesting off-site dental services at her own expense. (Dkt. 1, ¶ 28). 

These kites went unanswered, save one. (Dkt. 1, ¶ 29).

Plaintiff filed a grievance on April 16, 2006 against “Dental and

Administration,” stating that she was being denied dental services in the facility

and dental services by an off-site provider. (Dkt. 1, ¶ 30). According to plaintiff’s

complaint, Step I of this grievance was not answered. She filed a Step II appeal on

October 1, 2005 to the warden. She was interviewed by Dr. Schmude (also a

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Motion to Dismiss 4 Robinson v. Caruso; 08-14069

defendant). (Dkt. 1, ¶¶ 31-32). Dr. Schmude agreed that her teeth needed to be

fixed, but said that the MDOC will not pay for root canals. Rather, the MDOC

only offers extraction and plaintiff would have to see an off-site provider at her

own expense if she wanted anything other than extraction. (Dkt. 1, ¶ 32). She

asked to be referred to a specialist and to have the process expedited. According

to plaintiff, that did not happen. Plaintiff alleges that Policy Directive 04.06.150

provides that “Endodontic services, including root canal therapy and periapical

surgery” are in fact provided by the MDOC, but she was not offered any such

services. (Dkt. 1, ¶ 33).

On October 25, 2006, plaintiff received a response to her Step II grievance,

stating that access to outside dental care is not coordinated by MDOC dental staff

and directed plaintiff to contact her Resident Unit Manager (RUM) for this

request. (Dkt. 1, ¶ 34). Plaintiff states that her RUM said that coordinating offsite medical appointments was not in her job description and that plaintiff should

kite the warden. (Dkt. 1, ¶ 35). Plaintiff filed her Step III grievance appeal on

November 2, 2006 and has not received any response. (Dkt. 1, ¶ 36). Plaintiff

alleges, on information and belief, that an off-site dental provider and his assistant,

made dozens of calls to “Administration and Dental” attempting to schedule the

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Motion to Dismiss

5 Robinson v. Caruso; 08-14069

necessary appointments, but received no communication from “Administration”

and reluctant cooperation from defendant Dr. Gloria Smith. (Dkt. 1, ¶ 39). 

Plaintiff alleges that her pain and suffering and her dental conditions

worsened in 2007 and despite many kites to “Dental” and “Health Care,” and her

father’s attempts to communicate with the facility’s administration and the MDOC

in Lansing, no treatment or relief was provided. (Dkt. 1, ¶¶ 41-44). In May-June,

2007, plaintiff was told that health care had not had a dentist in over five months,

but the dentist from the nearby men’s facility would “try to come by when he had a

chance.” (Dkt. 1, ¶ 45). On June 1, 2007, plaintiff went to health care for

emergency treatment. She was given antibiotics. The next day, plaintiff’s face

was severely swollen, she had a prune-sized abscess, her upper lip was so swollen

she could not close her mouth or eat or drink, and another abscess had formed on

the roof of her mouth. (Dkt. 1, ¶ 47). Plaintiff returned to health care that day and

had apparently been given antibiotics to which she was allergic. (Dkt. 1, ¶ 48). 

She was given different antibiotics along with pain medications. (Dkt. 1, ¶ 48). 

Her face continued to swell, but health care refused to see her. (Dkt. 1, ¶ 49-54).

Plaintiff went for her medication refill and told the nurse that the current

treatment was not working and that the routine protocol for complicated abscesses

was IV antibiotics, incision and drainage, and removal of the dead and diseased

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Motion to Dismiss 6 Robinson v. Caruso; 08-14069

tissue. (Dkt. 1, ¶ 55). According to plaintiff, the nurse said that there was nothing

he could do, no Medical Services Provider was available in the clinic, and she

would have to wait. (Dkt. 1, ¶ 56). Overnight, the abscess blister quadrupled in

size and the infection had spread, distorting the left side of plaintiff’s face in size

and shape. The blister across her face was blocking the air passage through her

nose and her hard palate had a cherry-sized blister. (Dkt. 1, ¶ 56). Plaintiff

returned to health care and was sent to the hospital. (Dkt. 1, ¶ 57). Plaintiff

claims that the hospital refused to treat her for “liability” reasons and she was

returned to the facility, with a referral for follow-up care with an oral surgeon and

antibiotics and pain medication. (Dkt. 1, ¶¶ 58-60).

Apparently, in June and August 2007, plaintiff underwent two oral surgeries

for her conditions, but alleges that because various medical staff failed to follow

the post-operative instructions, her abscesses returned. (Dkt. 1, ¶¶ 64-66). 

Plaintiff alleges that she wrote to Dr. Hutchinson on August 20, 2007, detailing

the ongoing problems and asking him to step in as the director of CMS. (Dkt. 1,

¶ 67). She explained that she had already filed her grievance, but wanted Dr.

Hutchinson to ensure that the care she received was in accordance with standard

dental protocol and policy. In response, plaintiff received an unsigned form letter,

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Motion to Dismiss

7 Robinson v. Caruso; 08-14069

which did not address her concerns, but instructed her to utilize the grievance

procedure. (Dkt. 1, ¶ 68). 

Plaintiff asserts that she underwent unnecessary pain and suffering for over

two years and continues to have problems to this day. (Dkt. 1, ¶¶ 69-70). Plaintiff

also alleges that her off-site provider has recommended further surgery and other

treatments and products that defendants have refused to provide. (Dkt. 1, ¶ 71). 

In counts II and V of her complaint, plaintiff alleges that the CMS defendants

violated her constitutional rights under the Fourteenth and Eighth Amendments by

denying her adequate medical care and, specifically, that Dr. Hutchinson refused

to protect plaintiff after being specifically informed in writing of her serious

medical needs. (Dkt. 1, ¶ 76a). In Count IV of the complaint, plaintiff alleges

that the CMS defendants, by allowing and encouraging the illegal acts of denying

medical care as set forth in the MDOC policy directives, created a “custom” of

denying such care. (Dkt. 1, ¶ 78). Plaintiff asks for money damages and

injunctive relief. (Dkt. 1, pp. 30-32). 

B. Parties’ Arguments

The CMS defendants assert that plaintiff incorrectly alleges in her complaint

that numerous defendants were or are employees of CMS. According to the CMS

defendants, the only individual plaintiff correctly identified as a CMS employee in

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Motion to Dismiss 8 Robinson v. Caruso; 08-14069

her complaint is Dr. Craig Hutchinson, M.D. Thus, the motion to dismiss only

relates to Dr. Hutchinson and CMS.

The CMS defendants argue that plaintiff failed to exhaust her administrative

remedies as to CMS or Dr. Hutchinson. The CMS defendants argue that plaintiff

did not exhaust her grievance because she did not follow paragraph T of the Policy

Directive, which requires a grievant to identify the “[d]ates, times, places, and

names of all those involved in the issue being grieved.” Defendants provide

copies of the grievances that plaintiff filed during the relevant time period. 

According to the CMS defendants, Grievance No.

WHV-2007-06-00837-12a1, dated June 11, 2007, grieved “CMS dental staff” and

“MDOC’s administrative staff” and only defendants, Warden Davis,

administrative assistant Whalen, and deputy warden Bruce were named in the

grievance, none of whom are CMS employees. Defendants acknowledge that the

grievance concerned dental care requests and alleged problems with an infected

abscess in plaintiff’s upper gum and the roof of her mouth, and was appealed

through Step III. Defendants argue, however, that because none of the specific

people identified in the grievance are “CMS dental staff,” that this grievance was

not exhausted as to either CMS or Dr. Hutchinson.

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Motion to Dismiss 9 Robinson v. Caruso; 08-14069

Grievance No. WHV-2007-06-00838-12e1, dated June 8, 2007, grieved NP

Lange, for her treatment of plaintiff on June 4, 2007. However, NP Lange

is not a defendant in this case. Plaintiff’s Step III grievance was dismissed for

failure to file within 10 days of receiving the Step II response and the grievance

appeal was rejected as untimely filed. Thus, defendants argue that this grievance

is unrelated to CMS or Dr. Hutchinson. Further, defendants assert that while

Grievance No. WHV-2007-06-00838-12e1 grieved “CMS dental staff” and

MDOC’s administrative staff, only defendants, Sgt. Houpt, Lt. Allen, RN Bielak,

RN Ward and PA Kulkarni were named in the grievance, none of whom are CMS

employees. Plaintiff’s Step III grievance appeal was dismissed for failure to file

within 10 days of receiving the Step II response and the grievance appeal was

rejected as untimely filed. 

Grievance No. WHV-2008-08-1567-09z, dated September 26, 2008, grieved

Huron Valley Complex-Women Food Services’ alleged failure to meet MDOC

guidelines and claimed that proper food portions were not being served.

According to defendants, neither CMS nor Dr. Craig Hutchinson have any

involvement with Food Services or control over food preparation and service at

the Huron Valley Complex. This grievance was appealed through Step III.

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Motion to Dismiss 10 Robinson v. Caruso; 08-14069

The CMS defendants also argue that plaintiff’s complaint fails to state a

claim of deliberate indifference against Dr. Hutchinson in his individual capacity

because it fails to establish that he engaged in any conduct that was deliberately

indifferent to any alleged serious medical need. Further, plaintiff’s complaint fails

to allege the requisite culpable state of mind for a deliberate indifference claim

and plaintiff’s claims simply amount to a difference of opinion in a medical

judgment. 

 The CMS defendants also argue that plaintiff fails to state a claim against

CMS or against Dr. Hutchinson in his official because no policy, pattern or

practice is alleged to have violated plaintiff’s constitutional rights. Simply,

according to defendants, plaintiff does not identify any policy, custom, or practice

in her complaint. And, plaintiff makes no allegations that any policy, pattern, or

custom caused her injury. Thus, this claim must fail, according to defendants. 

Defendants also assert that a generic “money saving” policy is insufficient to

sustain a deliberate indifference claim.

In response, plaintiff asserts that the CMS defendants violated her

constitutional rights because of understaffing, inadequate care, and denial of

treatment, which led to her suffering deliberate indifference. Plaintiff also states

that she alleged that the “dental staff” and “medical” staff at the correctional

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Motion to Dismiss 11 Robinson v. Caruso; 08-14069

facility were employed by CMS, but that she could be mistaken, given that this

information is not readily available to prisoners. Plaintiff asserts that her

complaint is, essentially, that CMS failed to submit requests for endodontic

services (i.e., root canal therapy). Plaintiff argues that because she named CMS

dental staff and CMS services in two of her Step I grievances, and Dr. Hutchinson

is employed by CMS, then she exhausted her administrative remedies as to both

defendants.

Plaintiff also argues that she has sufficiently stated a deliberate indifference

claim. She claims that Dr. Hutchinson was responsible for employing a dentist at

the correctional facility and failed to do so for approximately six months. Plaintiff

also alleges that, in addition to abandoning the specific duties of his position,

defendant Hutchinson knowingly acquiesced in the unconstitutional conduct of

others, with knowledge of the substantial risk of harm. As to CMS, plaintiff

argues that her mistreatment was the result of a policy or practice of CMS. 

Plaintiff argues that the correct inquiry is whether CMS had knowledge of a

substantial risk of harm - not whether it was known who the particular victim

might be. That is, CMS should have known that emergencies would occur and

that its failure to have an on-site dentist available for six months posed a

substantial risk of harm to inmates. Plaintiff alleged in her complaint that CMS’s

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Motion to Dismiss 12 Robinson v. Caruso; 08-14069

“policies and protocols have insufficient checks on its doctors by which a patient

is left without care for an unreasonable amount of time” and it is “institutionally

responsible for such delays.” Plaintiff further pleaded that it was a custom to deny

root canal therapy and to delay dental treatments at the correctional facility where

she was housed.

III. DISCUSSION

A. Standards of Review

1. Motion to dismiss

To survive a motion to dismiss under Rule 12(b)(6), a plaintiff must first

comply with Rule 8(a)(2), which requires “‘a short and plain statement of the

claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant

fair notice of what the ... claim is and the grounds upon which it rests.’” Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964 (2007), quoting,

Conley v. Gibson, 355 U.S. 41, 47 (1957).

The Supreme Court recently raised the bar for pleading requirements

beyond the old “no-set-of-facts” standard of Conley v. Gibson, 355 U.S. 41, 78

(1957), that had prevailed for the last few decades. Courie v. Alcoa Wheel &

Forged Products, 577 F.3d 625, 2009 WL 2497928, *2 (6th Cir. 2009), citing,

Ashcroft v. Iqbal, — U.S. —, 129 S.Ct. 1937, 1949 (2009); see also Twombly, 550

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Motion to Dismiss 13 Robinson v. Caruso; 08-14069

U.S. at 555. In Iqbal, the Supreme Court explained that a civil complaint only

survives a motion to dismiss if it “contain[s] sufficient factual matter, accepted as

true, to state a claim to relief that is plausible on its face.” Iqbal, 129 S.Ct. at 1949.

The Sixth Circuit observed that this new standard is designed to screen out cases

that, while not utterly impossible, are “implausible.” Courie, at *2. “A claim has

facial plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Iqbal, 129 S.Ct. at 1949. And although the Court must accept all

well-pleaded factual allegations in the complaint as true, it need not “‘accept as

true a legal conclusion couched as a factual allegation.’” Twombly, 550 U.S. at

555, quoting, Papasan v. Allain, 478 U.S. 265, 286 (1986); see also Iqbal, 129

S.Ct. at 1949. The Sixth Circuit noted that “[e]xactly how implausible is

‘implausible’ remains to be seen, as such a malleable standard will have to be

worked out in practice.” Courie, *2. 

Where a plaintiff is proceeding without the assistance of counsel, the court

is still required to liberally construe the complaint and hold it to a less stringent

standard than a similar pleading drafted by an attorney. See e.g. Simmons v.

Caruso, 2009 WL 2922046 (E.D. Mich. 2009), citing, Haines v. Kerner, 404 U.S.

519, 520 (1972); Hahn v. Star Bank, 190 F.3d 708, 715 (6th Cir. 1999).

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Motion to Dismiss 14 Robinson v. Caruso; 08-14069

Thus, the Court must still read plaintiff’s pro se complaint indulgently and accept

plaintiff’s allegations as true, unless they are clearly irrational or wholly

incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992); Erickson v. Pardus, 127

S.Ct. at 2200 (The Court of Appeals improperly departed “from the liberal

pleading standards set forth by Rule 8(a)(2)” and failed to “liberally construe” the

pro se complaint at issue.).

2. Summary judgment

Rule 12(d) also provides that, if the moving party presents and the Court

relies on matters outside the pleadings, “the motion [under Rule 12(b)(6)] must be

treated as one for summary judgment under Rule 56. All parties must be given a

reasonable opportunity to present all the material that is pertinent to the motion.”

Fed.R.Civ.P. 12(d). Thus, the plain language of the rule requires that if the motion

relies on outside materials that the Court considers, then the motion “must” be

converted into a motion for summary judgment pursuant to Rule 56. See Song v.

City of Elyria, Ohio, 985 F.2d 840, 842 (6th Cir. 1993). 

Summary judgment is proper where no genuine issue of material fact exists

and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P.

56(c). In considering a motion for summary judgment, the evidence and all

reasonable inferences must be construed in favor of the nonmoving party. Tanner

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Motion to Dismiss 15 Robinson v. Caruso; 08-14069

v. County of Lenawee, 452 F.3d 472, 477 (6th Cir. 2006). “[A] party seeking

summary judgment always bears the initial responsibility of informing the district

court of the basis for its motion, and identifying those portions of ‘the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of

material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

Rule 56 limits the materials the Court may consider in deciding a motion

under the rule: “pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits.” Copeland v. Machulis, 57 F.3d 476, 478 (6th

Cir. 1995) (citation omitted). Moreover, affidavits must meet certain

requirements:

A supporting or opposing affidavit must be made on

personal knowledge, set out facts that would be

admissible in evidence, and show that the affiant is

competent to testify on the matters stated. If a paper or

part of a paper is referred to in an affidavit, a sworn or

certified copy must be attached to or served with the

affidavit. The court may permit an affidavit to be

supplemented or opposed by depositions, answers to

interrogatories, or additional affidavits.

Fed.R.Civ.P. 56(e)(1). In accordance with Rule 56(e), the Sixth Circuit has held

“that documents submitted in support of a motion for summary judgment must

satisfy the requirements of Rule 56(e); otherwise, they must be disregarded.”

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Motion to Dismiss 16 Robinson v. Caruso; 08-14069

Moore v. Holbrook, 2 F.3d 697, 699 (6th Cir. 1993). Thus, in resolving a Rule 56

motion, the Court should not consider unsworn or uncertified documents, Id.,

unsworn statements, Dole v. Elliott Travel & Tours, Inc., 942 F.2d 962, 968-969

(6th Cir. 1991), inadmissible expert testimony, North American Specialty Ins. Co.

v. Myers, 111 F.3d 1273, 1280 (6th Cir. 1997), or hearsay evidence, Hartsel v.

Keys, 87 F.3d 795, 799 (6th Cir. 1996); Wiley v. United States, 20 F.3d 222,

225-226 (6th Cir. 1994). Thus, “[a] party opposing a motion for summary

judgment cannot use hearsay or other inadmissible evidence to create a genuine

issue of material fact.” Id., quoting, Sperle v. Michigan Dept. of Corrections, 297

F.3d 483, 495 (6th Cir. 2002) (citation and quotation marks omitted).

B. Exhaustion

1. Burden of proof

In Jones v. Bock, 549 U.S. 199, 216 (2007), the United States Supreme

Court held that “exhaustion is an affirmative defense, and prisoners are not

required to specifically plead or demonstrate exhaustion in their complaints.” The

Court defined the level of detail necessary to exhaust as simply compliance with

the administrative grievance process. Id. at 218. Moreover, the burden rests on

the defendant to show that a plaintiff failed to exhaust when asserting exhaustion

as an affirmative defense. Id. Accordingly, exhaustion is satisfied if plaintiff

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Motion to Dismiss 17 Robinson v. Caruso; 08-14069

complied with the applicable MDOC grievance procedure and defendants bear the

burden of showing otherwise. Kramer v. Wilkinson, 226 Fed.Appx. 461, 462 (6th

Cir. 2007) (A prisoner-plaintiff “does not bear the burden of specially pleading

and proving exhaustion; rather, this affirmative defense may serve as a basis for

dismissal only if raised and proven by the defendants.”).

2. Purpose of exhaustion requirement.

The Supreme Court defines proper exhaustion under 42 U.S.C. § 1997e(a)

as “using all steps that the agency holds out, and doing so properly (so that the

agency addresses the issues on the merits).” Woodford v. Ngo, 548 U.S. 81, 126

(2006), quoting, Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)

(emphasis in original). “Proper exhaustion demands compliance with an agency’s

deadlines and other critical procedural rules because no adjudicative system can

function effectively without imposing some orderly structure on the course of its

proceedings.” Id. at 90. The Supreme Court also observed that “[t]he PLRA

attempts to eliminate unwarranted federal-court interference with the

administration of prisons, and thus seeks to ‘afford corrections officials time and

opportunity to address complaints internally before allowing the initiation of a

federal case.’” Id. at 93, quoting, Porter v. Nussle, 534 U.S. 516, 525 (2002)

(alteration omitted). Exhaustion serves a dual purpose: it gives prisoners “an

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 In its discussion of the former MDOC policy, which did not require 3

prisoners to name particular persons in a grievance, the Supreme Court noted that

“the MDOC grievance form does not require a prisoner to identify a particular

responsible party, and the respondent is not necessarily the allegedly culpable

prison official, but rather an administrative official designated in the policy to

respond to particular types of grievances at different levels.” Jones, 549 U.S. at

218. While the updated grievance procedure is applicable in this case, the MDOC

grievance form has not been updated since Jones. Unless a prisoner reviews the

grievance procedure, which is noted to be available in the prison library, there is

nothing on the grievance form to alert a prisoner of the requirement to name all

those “involved” in the circumstances of his grievance. (See Dkt. 27, Ex. C). 

Report and Recommendation

Motion to Dismiss 18 Robinson v. Caruso; 08-14069

effective incentive to make full use of the prison grievance process and

accordingly provides prisons with a fair opportunity to correct their own errors.”

Id. at 94. Additionally, the exhaustion requirement “has the potential to reduce the

number of inmate suits, and also to improve the quality of suits that are filed by

producing a useful administrative record.” Jones, 549 U.S. at 204.

Before Jones invalidated the additional exhaustion procedures placed on

prisoner civil rights suits by the Sixth Circuit, a prisoner was required to “file a

grievance against the person he ultimately seeks to sue,” and exhaust the claim as

to each defendant associated with the claim. Curry v. Scott, 249 F.3d 493, 505

(6th Cir. 2001). The critical holding in Jones was that the PLRA does not impose

additional exhaustion procedures or requirements outside the prison’s grievance

procedures. As observed in Jones, the primary purpose of a grievance is to alert 3

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Motion to Dismiss 19 Robinson v. Caruso; 08-14069

prison officials of a particular problem, “not to provide personal notice to a

particular official that he may be sued; the grievance is not a summons and

complaint that initiates adversarial litigation.” Jones, 549 U.S. 219, quoting,

Johnson v. Johnson, 385 F.3d 503, 522 (5th Cir. 2004); see also, Bell v. Konteh,

450 F.3d 651, 651 (6th Cir. 2006) (“[I]t is sufficient for a court to find that a

prisoner’s [grievance] gave prison officials fair notice of the alleged mistreatment

or misconduct that forms the basis of the constitutional or statutory claim made

against a defendant in a prisoner’s complaint.”). As such, “exhaustion is not per

se inadequate simply because an individual later sued was not named in the

grievances.” Jones, 549 U.S. at 219. No one in the present case claims that they

did not receive “fair notice” of plaintiff’s alleged mistreatment.

3. Defendants have not met their burden of proving that plaintiff

failed to exhaust his administrative remedies.

The 2000 MDOC Policy Directive at issue in Jones v. Bock does not contain

the requirements that a grievance “shall be limited to the facts involving the issue

being grieved (i.e., who, what when, where, why, how)” and that “[d]ates, times,

places and names of all those involved in the issue being grieved are to be

included.” After Jones, despite the requirement of the updated MDOC policy

directive to name those involved in the issue being grieved, in many

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Motion to Dismiss 20 Robinson v. Caruso; 08-14069

circumstances, a prisoner’s failure to specifically name individuals who are later

named in a lawsuit will not be deemed a failure to exhaust. For example, in Grear

v. Gelabert, 2008 WL 474098, *7-8 (W.D. Mich. 2008), the prisoner named

“health care staff” in a grievance. Prison officials did not, however, reject the

grievance for failure to identify the specific persons about whom he was

complaining. Id. at 8. The court concluded that, because prison officials did not

rely on this default by rejecting the grievance, the claim was exhausted as to all

health care staff, including those named in the lawsuit. Id. 

In this case, plaintiff identified, in Step I of grievance

WHV07060083712A1 dated June 11, 2007, “CMS dental staff,” “MDOC

administrative staff,” and “CMS Services.” (Dkt. 27-5, pp. 4, 7, 8). She also

wrote: 

During the “5 months prior to the situation, Women’s

Huron Valley was without a full-time dentist which

contributed to my inability to be seen timely. To date

I’m still experiencing complications due to the

negligence, deliberate indifference, interdepartmental

communication, laziness and blatant lack of care of the

MDOC administration and CMS services. This is the

second time I’ve been made to suffer abscesses and

extensive complications, showing this is a pattern, the

routine way of conducting business, consistent and

ongoing breakdown within this facility and not a freak

accident.

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(Dkt. 27-5, p. 8).

Just as in Grear, plaintiff’s Step I grievance was not rejected as unduly

vague or for a failure to identify specific individual dental and medical personnel

and the respondent addressed the grievance on the merits. See also Contor v.

Caruso, 2008 WL 878665, *8 (W.D. Mich. 2008) (Prison officials cannot rely on

the procedural rule barring review of a grievance where the grievance was not

rejected at any step of the process for failure to identify specific CMS personnel). 

Nothing in Jones v. Bock or Woodford altered the well-established principle

that when merits of a grievance are addressed, any claimed procedural defect not

raised during the administrative process is waived and cannot form the basis of a

failure to exhaust defense. District Judge Paul Maloney recently examined the

application of Jones and Woodford in circumstances where the updated MDOC

policy directive governed and the inmate failed to identify all persons later sued in

the underlying grievance. Baker v. Vanderark, 2007 WL 3244075 (W.D. Mich.

2007). In Baker, the defendants argued that the plaintiff failed to exhaust his

administrative remedies with respect to certain individuals who were not named in

his grievance, but who were later named in his lawsuit. Id. at *6. Judge Maloney

distilled the defendants’ argument as follows: “In effect, Defendants argue this

Court may conclude a grievant did not exhaust his or her administrative remedies

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even if the MDOC addressed the issue on the merits.” Id. Judge Maloney rejected

this argument and concluded that it was inconsistent with the policies

underpinning Woodford. Under the PLRA and Woodford, “both parties are

obligated to raise objections in the administrative proceedings in order for the

issue to be properly before a reviewing court.” Id. at *7. If the Court accepted

defendants’ position, a prisoner would never have notice that his grievance did not

comply with the grievance procedure. Further, accepting defendants’ position

would place the burden of raising an objection only on a prisoner and not on the

persons administering the grievance process. This interpretation is inconsistent

with the exhaustion doctrine and the purpose of the PLRA: “[w]hen prison

officials fail to raise procedural problems during the grievance process, too many

suits make it to federal courts on a record where the procedural problem has not

been adequately developed.” Id. at *7. 

Judge Maloney also concluded that a “fair interpretation of PD 03.02.103

gives the Grievance Coordinator discretion to accept or reject a grievance that fails

to identify specific defendants on the basis of the grievance being vague.” Id.

Rather than dismissing the grievance on a procedural issue and allowing the

prisoner to address any procedural concerns, the defendants opted to address the

grievance on the merits. Id. at *7. And, if needed additional information was

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required, the policy provides that the interview is the time to gather that

information. Judge Maloney concluded that “[b]y accepting the grievance,

investigating the claim, and responding on the merits all the way through Step III

of the procedure, [the defendants] cannot now raise a procedural problem for the

first time in this Court.” Id. 

Other courts, including this district, have reached the conclusion that

Woodford is not controlling because it did not involve a situation where a

grievance was addressed on the merits. See e.g., Broder v. Correctional Medical

Services, Inc., 2008 WL 704229, *2 (E.D. Mich 2008) (“Where the prison officials

themselves overlook a prisoner’s failure to comply with procedural requirements

and address the prisoner’s grievance on the merits, the procedural default rule

established by Woodford is inapplicable.”); see also Johnson v. Beardslee, 2007

WL 2302378 (W.D. Mich. 2007) (finding exhaustion satisfied because MDOC

accepted the grievance and addressed it on the merits rather than rejecting it or

denying it as untimely); Ellis v. Vadlamudi, 568 F.Supp.2d 778, 785 (E.D. Mich.

2008) (Exhaustion held sufficient where on-going medical care complaint at issue

and grievance addressed on merits). As set forth in the grievance procedure, a

grievance may be rejected if it is too vague (which includes the failure to name all

persons involved). Since the grievance at issue (WHV07060083712A1) was not

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rejected, and it was addressed on the merits, any procedural defect as to the lack of

specific identities of the “CMS dental staff” or the “CMS Services” personnel was

waived. Thus, there is no basis to grant summary judgment in favor of the CMS

defendants based on a failure to exhaust administrative remedies as to grievance

WHV07060083712A1. 

In the view of the undersigned, the CMS defendants improperly filed a

motion to dismiss on the basis of exhaustion, which should have been filed as

motion for summary judgment. As plaintiff pointed out, only allegations in the

complaint may be considered for purposes of a motion to dismiss, but the CMS

defendants attached various grievance materials to their motion, which fall outside

the four corners of plaintiff’s complaint. As set forth above, with respect to

plaintiffs grievance WHV07060083712A1, the undersigned suggests that the

CMS defendants failed to meet their burden of proving that plaintiff did not

exhaust her administrative remedies and because the undersigned considered

materials outside the complaint, this aspect of defendants’ motion is considered a

motion for summary judgment. With respect to plaintiff’s grievances

WHV0706008391E4 and WHV07060083812E1, which were rejected at Step III

as untimely, the undersigned suggests that plaintiff has had no opportunity to rebut

defendants’ evidence in this regard, which is solely the MDOC rejections. For

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example, plaintiff may have admissible evidence to dispute the untimeliness of her

Step III appeals or offer evidence that any delay falls within one of the excuses set

forth in the MDOC policy directive. Further, whether defendants’ evidence is

admissible, in its current form, in the summary judgment context is in serious

doubt. See e.g., Moore, 2 F.3d at 699 (In resolving a Rule 56 motion, the Court

should not consider unsworn or uncertified documents.). Under these

circumstances, the undersigned declines to convert defendants’ motion as one for

summary judgment and finds no basis in plaintiff’s complaint to dismiss her

claims (grounded in the latter two grievances) based on an alleged failure to

exhaust. Questions relating to whether defendant Hutchinson was responsible for

plaintiff’s care at any time and whether the other two grievances were exhausted

could be the subject of a separate motion after discovery or additional presentation

of admissible evidence on this issue.

C. Deliberate Indifference

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

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

U.S. 337, 352 (1981). Included as a type of conduct that violates the Eighth

Amendment is a prison official’s deliberate indifference to a prisoner’s serious

medical needs. See e.g., Estelle v. Gamble, 429 U.S. 97 (1976); Westlake v. Lucas,

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

indifference, plaintiff must satisfy two elements, an objective one and a subjective

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

defendant, being aware of that need, acted with deliberate indifference to it. 

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

A medical need is “serious” if it has been diagnosed by a physician as

requiring treatment or is so obvious that a lay person would easily recognize the

necessity for a doctor’s attention. Monmouth County Correctional Inst. Inmates v.

Lanzaro, 834 F.2d 326, 347 (3d Cir.), cert. denied, 486 U.S. 1006 (1988). An

Eighth Amendment claim may be premised on deliberate indifference to exposing

an inmate to an unreasonable risk of serious harm in the future. Dodson v.

Wilkinson, 304 Fed.Appx. 434, 2008 WL 5378017, *3 (6th Cir. 2008), citing,

Helling v. McKinney, 509 U.S. 25, 36 (1993). A delay in access to medical

attention, however, can violate the Eighth Amendment when it is “tantamount to

‘unnecessary and wanton infliction of pain.’” Hill v. DeKalb Regional Youth

Detention Center, 40 F.3d 1176, 1187 (11th Cir. 1994), (citations omitted),

overruled on other grounds, Hope v. Pelzer, 536 U.S. 730, 739 (2002). Further, a

claim of inadequate medical treatment may state a constitutional claim if the

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treatment rendered is “so woefully inadequate as to amount to no treatment at all.” 

Westlake v. Lucas, 537 F.2d 857, 860-861 (6th Cir. 1976). 

A serious medical need generally falls into one of two categories (1) a

medical need diagnosed by a physician as requiring treatment; or (2) a medical

need that is so obvious that a lay person would easily recognize the necessity for a

doctor’s attention. Monmouth County Correctional Inst. Inmates v. Lanzaro, 834

F.2d 326, 347 (3d Cir.), cert. denied, 486 U.S. 1006 (1988). For purposes of their

motion to dismiss, the CMS defendants do not appear to dispute that plaintiff had

a serious medical need.

Rather, the CMS defendants assert that plaintiff has failed to state a claim as

to the second element of Wilson, which requires sufficient factual allegations

stating a claim that these particular defendants acted with deliberate indifference. 

“Deliberate indifference” has been variously defined by the federal courts that

have considered prisoners’ Eighth Amendment claims, but all agree that it is more

than mere negligence and less than actual intent in the form of “malicious” or

“sadistic” action. Farmer v. Brennan, 511 U.S. 825, 861 (1994); see also Estelle,

429 U.S. at 105-106 (a complaint that a physician has been negligent in

diagnosing or treating a medical condition does not state a valid claim under the

Eighth Amendment; “medical malpractice does not become a constitutional

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violation merely because the victim is a prisoner”); Sanderfer v. Nichols, 62 F.3d

151, 154 (6th Cir. 1995) (deliberate indifference is the equivalent of “criminal

recklessness, which requires a subjective showing that the defendant was aware of

the risk of harm”); Gibson v. Foltz, 963 F.2d 851, 853 (6th Cir. 1992) (“[o]bduracy

or wantonness, not inadvertence or good faith error, characterizes deliberate

indifference.”). 

As noted in Estelle, “[i]n order to state a cognizable claim, a prisoner must

allege acts or omissions sufficiently harmful to evidence deliberate indifference to

serious medical needs.” Id. at 106. An allegation of mere negligence in diagnosis

or treatment is not actionable under § 1983. Estelle v. Gamble, supra; Byrd v. 

Wilson, 701 F.2d, 592, 595 n. 2 (6th Cir. 1983). In Whitley v. Albers, 475 U.S.

312 (1986), the Court held that “[i]t is obduracy and wantonness, not inadvertence

or error in good faith” that violates the Eighth Amendment in “supplying medical

needs.” “A defendant must purposefully ignore or fail to respond to a prisoner’s

pain or possible medical need in order for deliberate indifference to be

established.” McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 1992). The

deliberate indifference standard requires knowledge of the particular medical

condition in order to establish an intent, (“a sufficiently culpable state of mind,”

Wilson, 501 U.S. at 298), to deny or to delay purposely “access to medical care” or

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intentionally to interfere “with the treatment once prescribed,” Estelle, 429 U.S. at

104-05. Thus, “[k]nowledge of the asserted serious needs or of circumstances

clearly indicating the existence of such needs, is essential to a finding of deliberate

indifference.” Horn ex rel. Parks v. Madison County Fiscal Court, 22 F.3d 653,

660 (6th Cir.), cert. denied, 513 U.S. 873 (1994).

A claim under § 1983 alleging deliberate indifference to a prisoner’s serious

medical needs in violation of the Eighth Amendment may be brought against a

prison official for his or her personal role in implementing or enforcing a policy in

a way that deprives an individual of his constitutional rights. Estate of Young v.

Martin, 70 Fed.Appx. 256, 260 n. 3 (6th Cir. 2003), citing, Taylor v. Michigan

Department of Corrections, 69 F.3d 76, 81 (6th Cir. 1995); Hill v. Marshall, 962

F.2d 1209 (6th Cir. 1992). Such claims are appropriate where individual officials

are charged with “abandoning the specific duties of [their] position[s] ... in the

face of actual knowledge of a breakdown in the proper workings” of their

respective departments or facilities. Martin, 70 Fed.Appx. at 260, quoting, Hill,

962 F.2d at 1213. “As opposed to holding the officials vicariously liable for the

misconduct of others, plaintiffs may hold these officials liable for their failures in

their own obligations with regard to developing and implementing policy and

custom in such a way that resulted in violations of their Eighth Amendment

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rights.” Id. Indeed, “supervisors may be held liable if they fail to take corrective

action, turn a blind-eye to a constitutional violation, or condone a policy and/or

practice that amounts to a constitutional violation.” Harman v. Bell, 2008 WL

606998, *2 (E.D. Ark. 2008) (emphasis added), citing, Ambrose v. Young, 474

F.3d 1070, 1079 (8th Cir. 2007); Johnson v. Blaukat, 453 F.3d 1108 (8th Cir.

2006); Brown v. Missouri Dep’t of Corr., 353 F.3d 1038, 1040 (8th Cir. 2004).

In evaluating plaintiff’s complaint for purposes of a motion to dismiss, it is

important to emphasize that she need not prove her claims at this stage, but rather,

her complaint, viewed indulgently, need only have enough factual matter (taken as

true) to suggest the required element. Plaintiff alleges that she wrote to Dr.

Hutchinson on August 20, 2007, detailing the ongoing problems and asking him to

step in as the director of CMS. (Dkt. 1, ¶ 67). She explained that she had already

filed her grievance, but wanted Dr. Hutchinson to ensure that the care she received

was in accordance with standard dental protocol and policy. In response, plaintiff

received an unsigned form letter, which did not address her concerns, but

instructed her to utilize the grievance procedure. (Dkt. 1, ¶ 68). As to plaintiff’s

claims against Dr. Hutchinson in his personal capacity, the undersigned suggests

that plaintiff has sufficiently stated a claim that Dr. Hutchinson abandoned the

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duties of his position or turned a blind-eye to a policy that created the claimed

constitutional violation.

As to plaintiff’s claims against CMS and Dr. Hutchinson in his official

capacity, the CMS defendants correctly point out that a plaintiff bringing an action

pursuant to § 1983 may not base liability on a theory of respondeat superior or

vicarious liability. Moore v. Michigan Dep’t of Corrections, 2007 WL 3124649,

*4 (W.D. Mich. 2007), citing, Monell v. Dep’t of Soc. Serv., 436 U.S. 658, 98

(1978). Rather, under Monell, liability can only be found in situations where a

deprivation of constitutional rights occurs as a result of an entity’s policy, custom,

or practice. Raub v. Correctional Medical Services, 2008 WL 160611, *2 (E.D.

Mich. 2008), citing, Monell, 436 U.S. at 694. Moreover, there must be an

“affirmative link between the policy and the particular constitutional violation

alleged.” Raub, at *2, quoting, Oklahoma City v. Tuttle, 471 U.S. 808, 823

(1985). “There must be more than merely a right to control employees, as plaintiff

must show that CMS at least implicitly authorized, approved, or knowingly

acquiesced in the unconstitutional conduct of the offending employees.” Moore,

at *4, citing, Walton v. City of Southfield, 995 F.2d 1331, 1340 (6th Cir. 1993).

Here, plaintiff alleges that MDOC Policy Directive 04.06.150 provides that

“Endodontic services, including root canal therapy and periapical surgery” are in

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fact provided by the MDOC, but she was not offered any such services, and was

told that such services were not available. (Dkt. 1, ¶ 33). In count IV of the

complaint, plaintiff alleges that the CMS defendants, by allowing and encouraging

the illegal acts of denying medical care as set forth in the MDOC policy directives,

created a “custom” of denying such care. (Dkt. 1, ¶ 78). The undersigned

suggests that these allegations, along with the plaintiff’s detailed description of

her attempts to obtain dental services over a two-year period, sufficiently state a

claim under Monell against CMS and Dr. Hutchinson in his official capacity to

suggest that there was a pattern, practice or policy of denying adequate dental care

or denying dental care that was specifically authorized by an MDOC policy

directive. 

IV. RECOMMENDATION

Based on the foregoing, the undersigned suggests that the CMS defendants’

motion to dismiss be DENIED.

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

Recommendation, but are required to file any objections within 10 days of service,

as provided for in 28 U.S.C. § 636(b)(1) and Local Rule 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 and Human Servs., 932 F.2d

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505 (6th Cir. 1981). Filing objections that raise some issues but fail to raise others

with specificity will not preserve all the objections a party might have to this

Report and Recommendation. Willis v. Sec’y of Health and Human Servs., 931

F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of Teachers Local 231, 829

F.2d 1370, 1373 (6th Cir. 1987). Pursuant to Local Rule 72.1(d)(2), any

objections must be served on 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 10 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 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: September 25, 2009 s/Michael Hluchaniuk 

Michael Hluchaniuk

United States Magistrate Judge

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CERTIFICATE OF SERVICE

I certify that on September 25, 2009, I electronically filed the foregoing

paper with the Clerk of the Court using the ECF system, which will send

electronic notification to the following: Randall A. Juip, Michael R. Dean, Brian J.

Richtarcik, and Ronald E. Wagner, and I certify that I have mailed by United

States Postal Service the paper to the following non-ECF participant: Heather

Robinson, # 309247, HURON VALLEY COMPLEX - WOMEN’S, 3511 Bemis

Road, Ypsilanti, MI 48197.

s/James P. Peltier 

Courtroom Deputy Clerk

U.S. District Court

600 Church Street

Flint, MI 48502

(810) 341-7850

pete_peltier@mied.uscourts.gov

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