Report and Recommendation

Motion for Summary Judgment

1 McConnell v. Sharpe; Case No. 09-12603

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

KYLE McCONNELL, Case No. 09-12603

Plaintiff, Bernard A. Friedman

vs. United States District Judge

MARGARET SHARPE, et al., Michael Hluchaniuk

United States Magistrate Judge

Defendants.

 /

REPORT AND RECOMMENDATION

MOTION FOR SUMMARY JUDGMENT (Dkt. 55)

I. PROCEDURAL HISTORY

Plaintiff filed this civil rights action against defendants, alleging violations

of her constitutional rights while she was in the custody of the Michigan

Department of Corrections (MDOC). (Dkt. 1). This matter was referred to the

undersigned for all pretrial proceedings by District Judge Bernard A. Friedman. 

(Dkt. 12). On August 11, 2010, defendants filed a motion for summary judgment. 

(Dkt. 55). On August 14, 2010, plaintiff filed a response. (Dkt. 56). Defendants

filed a reply on August 27, 2010. (Dkt. 59). On August 27, 2010, plaintiff filed a

motion to correct the response and submit the signed declaration of plaintiff, which

was granted by the Court. (Dkt. 60). The motion for summary judgment was

scheduled for hearing on September 22, 2010, but the parties, in their joint

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statement of resolved and unresolved issues, indicated that they preferred the

matter to be resolved on briefs, without oral argument. (Dkt. 62). This matter is

now ready for report and recommendation.

For the reasons set forth below, the undersigned RECOMMENDS that

defendant’s motion for summary judgment be DENIED.

II. FACTUAL BACKGROUND

There is virtually no substantive dispute about the facts in this case. Plaintiff

McConnell first entered prison on April 29, 2006. She was released on parole on

May 4, 2008, and discharged from parole. (Dkt. 55-3, p. 4). Plaintiff mentioned

during her deposition that she has problems remembering what occurred from the

evening of December 20, 2006 until she was transferred to University of Michigan

Hospital on January 5, 2007. Id. at 5. After being discovered unconscious at

around 7:00 p.m. on December 20, 2006, plaintiff was transferred to the hospital,

“where it was determined that she had suffered a subarachnoid hemorrhage, a

stroke and a ruptured basis aneurysm.” (Dkt. 33, ¶¶ 34-36). The crux of plaintiff’s

complaint is that in the 24-hour period before her medical emergency, she had

sought medical care, but was refused.

According to plaintiff, her problems started on December 19, at

approximately 7:00 p.m., when she was lying on her bed: “And all of a sudden I

got this sharp, paralyzing pain in the back of my head that went down my neck and

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3 McConnell v. Sharpe; Case No. 09-12603

into my shoulders. I wouldn’t move for probably 15, 20 minutes. I couldn’t even

move.” Id. at 6; (see also Dkt. 56-3). She testified that, “[i]t’s not even a

headache. That doesn’t even describe it. It’s just an immense pain. It’s

indescribable. You can’t describe[] it.” Id. at 9. When she was able, plaintiff went

to the officer’s desk, where defendant Sharpe was working. Id. at 7; (see also Dkt.

56-3). She testified that the following events occurred:

I went up to the officer’s desk, and I told her [Defendant

Sharpe] – I said, “I had this pain in the back of my head.

It’s in my neck, it’s coming through my shoulders.” And

I said, “I couldn’t move.” I said, “But I need help.” And

she said, “Well, just go take some Tylenol and lay down.

You’ll be fine. You’re stressing over Christmas.” And I

said, No, I don’t think that’s what it is.” And she said,

“Just go lay down. I’m not calling healthcare. You’re up.

You’re walking. You’re okay. Go lay down.” So I did.

Id. at 10; (see also Dkt. 56-3). According to plaintiff’s declaration, she told

defendant Sharpe about what had happening to her while lying on her bed (being

unable to move for 15-20 minutes and having sharp, paralyzing pain), that she was

still suffering headaches, nausea and blurred vision, and wanted to go to health

care. (Dkt. 56-3, ¶ 4). The following is also taken from the declaration of plaintiff:

5. After 10:00pm, I went back up the officer’s

desk since there had been a shift change. By then the pain

was in both my head and my back. My eyes were getting

blurry. I felt nauseated, dizzy and as if I was looking out

of a fish bowl. I told the night officer what I felt and

asked to be sent to health services. This officer stated that

there was nobody at health care at night and to wait until

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morning and talked to the morning officer, which I did.

6. On December 20, 2006, I got up in the

morning and could hardy move. I was in extreme pain in

my right leg, my shoulders and my head. I was dizzy; I

was throwing up; I was sick.

7. At about 6:10am, on December 20, 2006, I

went to the officer’s desk and spoke with Defendant

Grant. I told Defendant Grant my symptoms that I had

that morning. I asked her to send me to health care.

Defendant Grant’s response was basically go screw

yourself. She did not want to hear what I was saying. She

would not send me to health care.

8. At approximately 7:00 a.m., I returned to the

officer’s desk and informed Defendant Grant of my

continuing severe headaches, blurred vision and nausea. I

asked to be sent to health care but Defendant Grant

refused to send me to health care or to even call to

determine whether I could be sent to health care.

9. At approximately 9:00am, I returned to the

officer’s desk because I was a porter in the housing unit

and was suppose to work that morning. I begged

Defendant Grant not to require me to perform my

mopping and other cleaning duties. Once again telling

her the condition I was in. She made me do my porter

duties. I again asked her to send me to health care and

she refused.

10. Around 12:20pm, I was scheduled to be in

school but again I begged Defendant Grant not to require

me to go to school because I was sick. I told her the pain

I was in. Defendant Grant told me I had to go to my

detail. I asked her to send me to health care and she

refused to either send me or call health care to determine

if I could be seen.

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11. At approximately 2:00 p.m. on December

20, 2006, I approached Defendant Chapman, who was

working the afternoon shift and was at the officer’s desk.

I informed her of my medical conditions, i.e., that I had

been suffering severe headaches, blurred vision and

nausea for the past 24-hours and needed to be sent to

health care. Defendant Chapman refused to send me to

health care or to even call to determine whether I could

be sent to health care.

12. At approximately 5:00 p.m. on December

20, 2006, I requested Defendant Chapman to contact

health care due to my continuing severe headaches,

blurred vision and nausea. Defendant Chapman refused

to send Plaintiff to health care or to even call to

determine whether I could be sent to health care.

13. At approximately 7:00 p.m. on December

20, 2006, I was found unconscious on my bed.

In December of 2006, defendant Chapman was a Resident Unit Officer

(RUO). She was not assigned to any particular unit, but was instead a relief RUO,

sometimes called a “rover.” (Dkt. 55-4) (deposition of E. Chapman, p. 7). At

17:31 (or 5:31 p.m.), prisoner Mobley reported that her bunkie, plaintiff, was

“down.” Chapman and other staff responded immediately. (Dkt. 55-4, pp. 13-14). 

Chapman reported the events in a “Critical Incident Participation Report.” (Dkt.

55-5). Plaintiff was unresponsive but breathing, albeit labored. Id. Plaintiff was

taken from the unit to healthcare at 1750 hours. (Dkt. 55-4, p. 14). Chapman

could not recall plaintiff speaking to her earlier in the day. (Dkt. 55-4, p. 27).

Sharpe could not recall anything about plaintiff’s medical needs. (Dkt. 55-6)

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(deposition of M. Sharpe, p. 21). Defendant Grant also could not recall having any

contacts with plaintiff regarding her medical needs. (Dkt. 55-7) (deposition of L.

Grant, p. 14).

III. ANALYSIS AND CONCLUSION

A. Standard of Review

Summary judgment is appropriate when the record reveals that there are no

genuine issues as to any material fact in dispute and the moving party is entitled to

judgment as a matter of law. Fed.R.Civ.P. 56(c); Kocak v. Comty. Health Partners

of Ohio, Inc., 400 F.3d 466, 468 (6th Cir. 2005); Thomas v. City of Chattanooga,

398 F.3d 426, 429 (6th Cir. 2005). The standard for determining whether summary

judgment is appropriate is “whether the evidence presents a sufficient disagreement

to require submission to a jury or whether it is so one-sided that one party must

prevail as a matter of law.” State Farm Fire & Cas. Co. v. McGowan, 421 F.3d

433, 436 (6th Cir. 2005), quoting, Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

251-52 (1986); see also Tucker v. Union of Needletrades Indus. & Textile

Employees, 407 F.3d 784, 787 (6th Cir. 2005). The court must consider all

pleadings, depositions, affidavits, and admissions on file, and draw all justifiable

inferences in favor of the party opposing the motion. See Matsushita Elec. Indus.

Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Twin City Fire Ins. Co.

v. Adkins, 400 F.3d 293, 296 (6th Cir. 2005).

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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.”

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

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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. Deliberate Indifference

To establish a cause of action under § 1983, two essential elements are

required: (1) there must be conduct committed by a person acting under color of

state law, and (2) the conduct must deprive the plaintiff of rights, privileges or

immunities secured by the Constitution or laws of the United States. 42 U.S.C.

§ 1983; Parratt v. Taylor, 451 U.S. 527 (1981); Gomez v. Toledo, 446 U.S. 635,

640 (1980); Jones v. Duncan, 840 F.2d 359, 361-62 (6th Cir. 1988). Defendants

do not claim that the first prong of this test is disputed. 

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,

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 (objective prong) and he

must show that a defendant, being aware of that need, acted with deliberate

indifference to it (subjective prong). Wilson v. Seiter, 501 U.S. 294, 300 (1991).

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 In Napier v. Madison County, 238 F.3d 739, 742 (6th Cir. 2001), the Court

held that an inmate who complains that a delay in medical treatment is “sufficiently

serious” so as to violate his constitutional rights, must present “verifying medical

evidence” to establish the detrimental effect of the delay in medical treatment. As

explained in Blackmore, however, Napier does not apply to medical care claims

where facts show an obvious need for medical care that laymen would readily

discern as requiring prompt medical attention by competent health care providers. 

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9 McConnell v. Sharpe; Case No. 09-12603

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 Co. 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, 2008 WL 5378017, *3 (6th Cir. 2008), citing, Helling v. McKinney, 509

U.S. 25, 36 (1993). A medical need is objectively serious where a plaintiff's claims

arise from an injury or illness “so obvious that even a layperson would easily

recognize the necessity for a doctor’s attention.” Blackmore v. Kalamazoo County,

390 F.3d 890, 897-900 (6th Cir. 2004). In such situations, the “plaintiff need not

present verifying medical evidence to show that, even after receiving the delayed

necessary treatment, his medical condition worsened or deteriorated. Instead, it is

sufficient to show that he actually experienced the need for medical treatment, and

that the need was not addressed within a reasonable time.” Blackmore, 390 F.3d at

899-900.1

 In this case, plaintiff claims that the need for treatment earlier than her

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Napier applies where the plaintiff’s “deliberate indifference” claim is based on the

prison’s failure to treat a condition adequately, or where the prisoner’s affliction is

seemingly minor or non-obvious. In such circumstances, medical proof is

necessary to assess whether the delay caused a serious medical injury. Blackmore,

390 F.3d at 898, citing, Napier, 238 F.3d at 742.

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collapse was obvious and each of the defendants should have realized that she

needed medical attention based on her complaints and symptoms; that is, “even a

layperson would easily recognize the necessity for a doctor’s attention.” The

undersigned finds that this test has been satisfied by plaintiff’s proffer of evidence. 

Plaintiff has testified that she described her symptoms of being unable to move for

periods of 15-20 minutes, dizziness, stabbing pains in her head, neck, and

shoulders, and blurred/impaired vision, to each of the defendants in detail. While

the obviousness of a risk is not conclusive and a prison official may show that the

obvious escaped him, he would not escape liability if the evidence showed that he

merely refused to verify underlying facts that he strongly suspected to be true, or

declined to confirm inferences of risk that he strongly suspected to exist. Farmer

v. Brennan, 511 U.S. 825, 844 (1994). Contrary to defendants’ view, the test is not

whether it was obvious that, prior to plaintiff’s collapse, she was suffering from a

cerebral hemorrhage, stroke, and aneurysm, but rather, whether it was obvious that

she required immediate medical attention. While merely complaining of pain

symptoms may be insufficient to establish the “obvious” test, see Jones v.

Carberry, 2010 WL 1172562, *5 (W.D. Mich. 2010), in the view of the

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undersigned, when informed of plaintiff’s symptoms, a layperson would perceive

the need for immediate medical attention. See Cain v. Irvin, 286 Fed.Appx. 920,

927 (6th Cir. 2008) (obviousness test is whether a layperson would perceive the

need for immediate medical attention). Thus, plaintiff has established a genuine

issue of material fact as to the objective prong of the deliberate indifference test.

The Court must now decide whether plaintiff has established a question of

fact as to the second element of Wilson, which requires a showing that this

particular defendant 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 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.”). 

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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. “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 subjective component requires a plaintiff to “allege facts which, if true,

would show that the official being sued subjectively perceived facts from which to

infer substantial risk to the prisoner, that he did in fact draw the inference, and that

he then disregarded that risk.” Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir.

2001); see also Harris v. City of Circleville, 583 F.3d 356 (6th Cir. 2009). 

“Because government officials do not readily admit the subjective component of

this test, it may be ‘demonstrat[ed] in the usual ways, including inference from

circumstantial evidence ... and a factfinder may conclude that a prison official

knew of a substantial risk from the very fact that the risk was obvious.’” 

Dominguez v. Correctional Medical Services, 555 F.3d 543, 550 (6th Cir. 2009),

quoting, Terrance v. Northville Reg’l Psychiatric Hosp., 286 F.3d 834, 843 (6th

Cir. 2002). Given the foregoing conclusions regarding the obvious need for

medical treatment, the undersigned concludes that plaintiff has also established a

genuine issue of material fact regarding the subjective prong of the deliberate

indifference test.

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C. Qualified Immunity

Defendants claim to be entitled to qualified immunity regarding their actions

in this case. The doctrine of qualified immunity means that “‘[g]overnment

officials performing discretionary functions generally are shielded from liability

for civil damages insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have

known.’” Caldwell v. Moore, 968 F.2d 595, 599 (6th Cir. 1992), quoting, Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982). Defendants bear the burden of pleading

qualified immunity, but plaintiff bears the burden of showing defendants are not

entitled to qualified immunity. Sheets v. Mullins, 287 F.3d 581, 586 (6th Cir.

2002). 

The Supreme Court had established a two-part test in order to determine

whether qualified immunity was applicable to a particular situation. Saucier v.

Katz, 533 U.S. 194 (2001). The first part of the test involved a determination of

whether the facts of the case, viewed in the light most favorable to the plaintiff,

“show the officer’s conduct violated a constitutional right.” Id. at 201. If the first

question was resolved in the affirmative then the court would decide “whether the

right was clearly established.” Id. If both questions are resolved in the affirmative,

then the doctrine of qualified immunity does not apply and the case can proceed.

Recently, the Supreme Court revisited their decision in Saucier and

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concluded that mandatory order of the two part test for determining if qualified

immunity applied was no longer sound based on several factors including judicial

economy. Pearson v. Callahan, — U.S. —, 129 S.Ct. 808 (2009). While not

modifying the factors that should be considered in such a decision, the Court held

that sometimes it makes sense to allow the second part of the test to be decided

first and that such a decision may resolve the controversy without having to

address the first part of the test. In Pearson, the § 1983 claim of the plaintiff was

based on an allegedly unlawful search conducted by the defendant police officers. 

Without having to engage in the perhaps more complicated decision of determining

whether plaintiff’s constitutional rights had been violated, the Court found that the

constitutional right claimed by plaintiff was not clearly established where lower

court case law was consistent with the conduct of the officers and “principles of

qualified immunity [should] shield an officer from personal liability when an

officer reasonably believes that his or her conduct complies with the law.” 

Plaintiff had a clearly established right to have her serious medical needs

reasonably attended to and, when viewed in the light most favorable to plaintiff,

the conduct of defendants, by not addressing the medical concerns that she

informed them of, violated that right. The undersigned suggests that, given the

foregoing conclusions regarding plaintiff’s claims, the undersigned cannot say that

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2

 In addition, defendants rather perfunctorily present their qualified

immunity defense. It is not sufficient for a party to mention a possible argument

“in a most skeletal way, leaving the court to ... put flesh on its bones.” McPherson

v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997). Indeed, a court need not make a

party’s case by scouring the various submissions to piece together appropriate

arguments. Little v. Cox’s Supermarkets, 71 F.3d 637, 641 (7th Cir. 1995). And,

the court is not obligated to make defendants’ case for them or to “wade through

and search the entire record” for some specific facts that might support their

motion. InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989). 

Simply, defendants have not satisfied their burden of coming forward with

sufficient facts, or an explanation of applicable law, on which the court could

possibly enter summary judgment in their favor on the basis of qualified immunity.

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the remaining defendants are entitled to qualified immunity.2

IV. RECOMMENDATION

For the reasons set forth above, the undersigned RECOMMENDS that

defendant’s motion for summary judgment 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 14 days of service,

as provided for in Federal Rule of Civil Procedure 72(b)(2) and 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 (1985); Howard v. Sec’y of Health and

Human Servs., 932 F.2d 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

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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 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), Local Rule 72.1(d). 

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.

s/Michael Hluchaniuk 

Date: February 3, 2011 Michael Hluchaniuk

United States Magistrate Judge

CERTIFICATE OF SERVICE

I certify that on February 3, 2011, I electronically filed the foregoing paper

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

notification to the following: Daniel E. Manville and Kevin R. Himebaugh.

s/Tammy Hallwood 

Case Manager

(810) 341-7887

tammy_hallwood@mied.uscourts.gov

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