UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

N. KALONJI OWUSU I, aka

NATHANIEL PORTER,

Plaintiff,

v. CASE NO. 09-13511

DISTRICT JUDGE THOMAS L. LUDINGTON

 MAGISTRATE JUDGE DONALD A. SCHEER

HARESH PANDYA, JEFFREY

STIEVE, PATRICIA CARUSO, 

MICHAEL SARVER, SYLVIA

McQUEEN, PRISON HEALTH

SERVICES, and

CORRECTIONAL MEDICAL 

SERVICES,

Defendants.

_____________________________/

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

RECOMMENDATION: Defendants’ respective Motions for Summary Judgment should be

GRANTED, as Plaintiff has failed to establish any violations of his federally secured

constitutional rights by any deliberate indifference to his serious medical needs.

* * * 

Plaintiff, while incarcerated at the Michigan Reformatory in Ionia, Michigan1

, filed the

instant Complaint, pursuant to 42 U.S.C. § 1983, on September 4, 2009, against the above

named defendants, alleging that they had been deliberately indifferent to his serious

medical needs. Specifically, Plaintiff asserts that he was denied adequate medical care for

back and shoulder pain. Claiming violations of his Eighth Amendment rights under the

federal Constitution, Plaintiff seeks compensatory and punitive damages and injunctive

relief.

 1Plaintiff is still incarcerated at the Michigan Reformatory.
Defendants Caruso, Pandya and Stieve filed a Motion for Summary Judgment on

March 23, 2010. Defendant Caruso, the Director of the Michigan Department of Corrections

(MDOC), asserts that Plaintiff has failed to state a claim that she directly participated in,

encouraged, or implicitly authorized the alleged unconstitutional conduct. Defendants

Pandya and Stieve, regional chief medical officials employed by the MDOC, deny any

deliberate indifference to a serious medical need. They maintain that they were not

deliberately or wantonly indifferent to Plaintiff’s serious medical needs, and that they did

not knowingly refuse to provide urgently needed medical care so as to cause residual

injuries which could have been prevented with timely attention (Docket #27). 

Defendants Prison Health Services (PHS) and Dr. Sylvia McQueen filed a separate

Motion to Dismiss on March 23, 2010, based upon a failure to state a claim upon which

relief may be granted. PHS asserts that Plaintiff has failed to allege that any policy,

procedure or custom of the medical provider violated his constitutional rights. Dr. McQueen

claims that Plaintiff has failed to allege facts showing she violated Plaintiff’s constitutional

rights. (Docket #26). Plaintiff filed a response to the motion to dismiss, arguing that his

claims against PHS were viable and well pled. He agreed, however, that the claims against

Dr. McQueen should be dismissed with prejudice. (Docket #46).

Defendant CMS filed a separate Motion for Summary Judgment on May 7, 2010,

based upon a failure to show that they directly participated in, encouraged, or implicitly

authorized the alleged unconstitutional conduct. (Docket #44). Plaintiff has not filed a

response to CMS’ dispositive motion to date.

INADEQUATE MEDICAL TREATMENT

The Eighth Amendment bans cruel and unusual punishment which involves the

unnecessary and wanton infliction of pain. Hudson v. McMillan, 503 U.S. 1, 5 (1992);

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Pelfrey v. Chambers, 43 F.3d 1034, 1037 (6th Cir. 1995). It is well established that

deliberate indifference to serious medical needs constitutes the unnecessary and wanton

infliction of pain. Estelle v. Gamble, 429 U.S. 97, 104-105 (1976). To sustain an Eighth

Amendment claim of deliberate indifference to medical needs, a prisoner must satisfy a two

prong test. First, he must demonstrate that his medical needs were serious and required

attention that adhered to “contemporary standards of decency.” Hudson, 503 U.S. at 8. 

Then, he must establish that defendants were deliberately indifferent to those needs. Id.

Deliberate indifference exists when “the official knows of and disregards an

excessive risk to inmate health and safety; the official must be aware of facts from which

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

the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). In other words, this prong is

satisfied when a prison official acts with criminal recklessness, i.e. when he or she

“consciously disregard(s) a substantial risk of serious harm.” Brooks v. Celeste, 39 F.3d

125, 128 (6th Cir. 1994)(citing Farmer, 114 U.S. at 839-840).

Mere negligent inattention to a prisoner's request for assistance does not offend

substantive due process under the Fourteenth Amendment, Davidson v. Cannon, 474 U.S.

344 (1986), and medical malpractice does not become a constitutional violation merely

because the victim is a prisoner. Estelle, 429 U.S. at p. 106. Basically, there must be a

knowing failure or refusal to provide urgently needed medical care which causes a residual

injury that could have been prevented with timely attention. The court must consider the

wide discretion allowed prison officials in their treatment of prisoners under authorized

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

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A. Defendant Caruso

Plaintiff’s claim of liability against Defendant Caruso is based upon her supervisory

authority and failure to respond to his grievances. Plaintiff does not allege any specific

personal involvement by Caruso in his medical treatment. Plaintiff maintains, however, that

MDOC Director Caruso knew, or should have known, of CMS’s inadequate provision of

medical care to inmates in the custody of the MDOC. He further maintains that she failed

to train medical staff or enact policies to ensure against Eighth Amendment violations of

the prison’s duty to provide medical care. 

The doctrine of respondeat superior does not apply in § 1983 lawsuits to impute

liability to supervisory personnel, unless it is shown that “the supervisor encouraged [a]

specific incident of misconduct or in some other way directly participated in it.” See Monel,

436 U.S. at 691-695; Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984). At a minimum,

a plaintiff must show that the official implicitly authorized, approved or knowingly

acquiesced in the unconstitutional conduct. Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir.

1999).

In this case, Plaintiff fails to demonstrate any specific conduct by Defendant Caruso

that would support a finding that she directly participated in, encouraged, or implicitly

authorized or approved the alleged unconstitutional conduct. Supervisory liability under §

1983 cannot attach where the allegation of liability is based on a mere failure to act. Bass

v. Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999). Liability must be based upon active

unconstitutional behavior. Id. Plaintiff offers no case law giving notice to supervisory

officials that they can be held personally liable for the inadequacies of a medical provider

with whom they contracted. 

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To the extent Plaintiff complains about a failure to respond to his grievances, the

general rule is that a combination of knowledge of a prisoner's grievances and failure to

respond to or remedy the complaints is insufficient to impose liability upon supervisory

personnel under § 1983. Hays v. Jefferson County, 668 F.2d 869, 874 (6th Cir. 1982), cert.

denied, 459 U.S. 833 (1982). Defendant Caruso was merely part of the prison

administration during the relevant time, and there is no evidence that any "policy"

personally promulgated by her had anything to do with Plaintiff's treatment. Moreover,

Plaintiff has not shown that this Defendant had "actual knowledge of a breakdown in the

proper workings of the department." See Hill v. Marshall, 962 F.2d 1209, 1213 (6th Cir.

1992). Absent a showing that she was personally or directly involved, Defendant Caruso

may not be held liable for compensatory and punitive damages. Accordingly, the monetary

claim against her should be dismissed regardless of the constitutional sufficiency of

Plaintiff's actual treatment.

B. Defendants Pandya, Stieve and Sarver

A review of the circumstances here clearly reveals that Plaintiff's medical needs

were not addressed with "deliberate indifference," "intentional delay," or "delay of access

to medical care." Estelle, 429 U.S. at 104-105. Plaintiff acknowledged in his complaint that

he received immediate medical treatment for shoulder, cervical and lumbar pain. Symptoms

initially began in March 2008, while Plaintiff was incarcerated at the Ryan Correctional

Facility. He was seen several times in the ensuing months by MDOC medical staff.

(Complaint at pp. 4–14). Plaintiff was treated for his joint pain with a combination of drug

therapies. His primary complaint is that the medications that have been prescribed by

treating doctors have failed to alleviate his joint discomfort Plaintiff believes the doctors

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have been deliberately indifferent to his serious medical needs because they refuse to

provide him stronger pain medications(Complaint at p.15).

Plaintiff’s claim against Defendants Pandya, Stieve and Sarver amount to a

disagreement with the medical conclusions reached and treatment rendered. Even to the

extent that the conclusions or treatment were incorrect or misguided, “medical malpractice

does not become a constitutional violation merely because the victim is a prisoner.” Estelle,

429 U.S. 105. Plaintiff does not allege that any of the medical providers “consciously

disregarded a substantial risk of serious harm.” Brooks, 39 F.3d at 128. He simply

disagrees with the treatment provided. A difference of opinion between a prisoner and the

treating physician’s diagnosis and prescribed treatment does not support an Eighth

Amendment claim. Hix v. Tennessee Dept. of Corrections, 196 F. App’x 350, 356 (6th Cir.

2006); Westlake, 537 F.2d. at 860 n.5 

 Even accepting the facts as provided by Plaintiff, the record is clear that Defendants

Pandya, Stieve and Sarver were not deliberately or wantonly indifferent to his serious

medical needs. They did not knowingly refuse to provide urgently needed medical care. 

Although Plaintiff may not be happy with the treatment he received for his pain while in

state custody, the record demonstrates that health care personnel were at all times 

responsive to his medical condition. 

In situations such as this, where there is a substantial record of medical treatment,

or simply a difference of opinion between a prisoner and prison doctors, the requisite

deliberate indifference has usually been held not to exist. Smart v. Villar, 547 F.2d 112,

114 (10th Cir. 1976); Mayfield v. Craven, 433 F.2d 873 (9th Cir. 1970). While Plaintiff

makes broad conclusory allegations against the three physicians, he does not link them to

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any specific incident in which they were personally indifferent to his medical needs. Plaintiff

conclusory allegations are insufficient to state a claim upon which relief can be granted.

Defendants Pandya, Stieve and Sarver2, should be dismissed.

C. Prison Health Service and Correctional Medical Services

The medical personnel who treated Plaintiff worked for either Prison Health Service

(PHS) or Correctional Medical Services (CMS), private corporations providing medical care

at Michigan prisons and camps by contract. PMS and CMS, however, acting as agents of

the State, are not liable under the theory of respondeat superior. Berry v. City of Detroit,

25 F.3d 1342, 1345 (6th Cir. 1994); Street v. Corrections Corporation of America, 102 F.3d

810, 817-818 (6th Cir. 1996). The general rule is that a private corporation, carrying out a

governmental function, may not be sued under § 1983 for a wrong inflicted solely by its

employees or agents unless they are executing some official policy, practice or custom that

was a “moving force” behind the alleged constitutional violation. Monell v. Dept of Social

Services, 436 U.S. 658, 694 (1978); Graham v. County of Washtenaw, 358 F.3d. 377, 383

(6th Cir. 2004).

Plaintiff has failed to produce evidence that anyone was deliberately indifferent to

his medical needs in reliance on any specific custom or procedure maintained by either

 2Service of process against Defendant Sarver was returned unexecuted in March

2010 (Docket #22). Due process requires service of process in order to obtain in personam

jurisdiction over an individual defendant. See Amen v. City of Dearborn, 532 F.2d 554, 557

(6th Cir. 1976). Plaintiff bears the burden of perfecting service of process, and showing that

proper service was made. See Byrd v. Stone, 94 F.3d 217, 219 (6th Cir. 1996). Plaintiff has

not satisfied this burden. As a result, the complaint against Defendant Sarver should be

dismissed because he has not been served within 120 days after the filing of the complaint,

as required by Rule 4(m) of the Federal Rules of Civil Procedure. Alternatively, based on

the uncontested facts presented in this case, the Complaint should be dismissed against

Dr. Sarver for failure to state a claim for which relief can be granted. 

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PHS or CMS. Furthermore, Plaintiff is completely unable to demonstrate that his alleged

injuries resulted from the execution of any particular policy allegedly maintained by PHS

or CMS. Accordingly, Defendants PHS and CMS should be dismissed from this action. 

For the foregoing reasons, it is recommended that Defendants’ respective Motions

to Dismiss and Summary Judgment be granted for failure to state a claim for which relief

can be granted. The claims against Defendant McQueen should be dismissed, as

stipulated by Plaintiff (Docket #46). Given this recommendation, Defendants’ Motions to

Stay Discovery (Docket #57 and #58) should be denied as moot.

 s/Donald A. Scheer

 DONALD A. SCHEER 

 UNITED STATES MAGISTRATE JUDGE

DATED: June 30, 2010

______________________________________________________________________

CERTIFICATE OF SERVICE

I hereby certify on June 30, 2010 that I electronically filed the foregoing paper with

the Clerk of the Court sending notification of such filing to all counsel registered

electronically. I hereby certify that a copy of this paper was mailed to the following nonregistered ECF participants on June 30, 2010: Nathaniel Porter.

s/Michael E. Lang 

Deputy Clerk to 

Magistrate Judge Donald A. Scheer

(313) 234-5217

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