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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

EARNEST TAYLOR,

Plaintiff, CIVIL ACTION NO. 09-12756

v. DISTRICT JUDGE DAVID M. LAWSON

MALATINSKY, STEVEN GIDEL, MAGISTRATE JUDGE VIRGINIA MORGAN

R. POMALOY, ESANTA CRUZ,

JOHN UPP, and MARIO BAYONETO,

Defendants.

 /

REPORT AND RECOMMENDATION TO

GRANT DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (D/E #24)

I. Introduction

This is a pro se action in which the plaintiff, an inmate in the custody of the Federal

Bureau of Prisons, alleges that the defendants deprived plaintiff of his rights under the United

States Constitution through their deliberate indifference to his serious medical needs. The matter

comes before the court on defendants’ Motion for Summary Judgment (D/E #24). Plaintiff filed

a response in opposition to defendant’s motion for summary judgment (D/E #29) and defendants

filed a reply to that response (D/E #32). For the reasons stated below, this court recommends

that defendants’ motion be GRANTED, summary judgment be entered in favor of defendants,

and this case be closed.
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II. Background

A. Procedural History

1. Complaint

On July 14, 2009, plaintiff filed a complaint against defendants in this matter (D/E #1). 

In that complaint, plaintiff alleges that, on August 8, 2007, he fell down and was injured while

climbing some stairs at the Federal Correctional Institution in Milan, Michigan (“FCI Milan”). 

According to plaintiff, he fell because his hands were handcuffed behind his back as he

attempted to climb the stairs and because the stairs were very narrow. Plaintiff also alleges that,

since the fall, defendants have been deliberately indifferent to the severe pain he has been

suffering from in his back and right elbow. As relief, plaintiff seeks proper medical care and

monetary damages.

2. Motion Before the Court

On June 28, 2010, defendants filed the motion for summary judgment pending before the

court (D/E #24). In that motion, defendants argue that plaintiff’s claims against them in their

individual capacities are barred by their qualified immunity. Defendants also argue that, to the

extent plaintiff asserts any claims against them in their official capacities, those claims are barred

by sovereign immunity. Defendants further argue that defendant Bayoneto was not personally

involved in any of the alleged constitutional violations and that, consequently, he is entitled to

summary judgment on that basis as well.

On August 30, 2010, plaintiff filed a response in opposition to defendants’ motion for

summary judgment (D/E #32). In that response, plaintiff argues that he has a clear right to
1

Declaration of David Wilson, ¶ 4, attached as Exhibit 5 to Defendants’ Motion for

Summary Judgment; Declaration of Mark Cote, ¶ 3, attached as Exhibit 6 to Defendants’ Motion

for Summary Judgment. 

2

Declaration of David Wilson, ¶ 5; Declaration of Mark Cote, ¶ 4; Deposition of Plaintiff,

pp. 37-38; attached as Exhibit 16 to Defendants’ Motion for Summary Judgment.

3

Declaration of David Wilson, ¶ 6; Declaration of Mark Cote, ¶ 5.

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proper medical care under the Eighth Amendment to the United States Constitution and that

defendants violated that right through their deliberate indifference to his serious medical needs. 

Specifically, plaintiff asserts that defendants have denied his reasonable requests for

medications, proper medical attention for his pain, and x-rays of his damaged shoulder, elbow

and hand. Plaintiff does concede, however, that he is only suing defendants in their individual

capacities and that any claims against defendants in their official capacities are waived.

On September 9, 2010, defendants filed a reply to plaintiff’s response (D/E #32). In that

reply brief, defendants again argue that plaintiff merely disputes how he was treated and that

mere differences in treatment choices do not rise to the level of deliberate indifference.

B. Factual Record

On August 8, 2007, around 12:45 p.m., Officers David Wilson and Mark Cote starting

escorting plaintiff to a disciplinary hearing in the special housing unit at FCI Milan.1 Plaintiff’s

hands were restrained behind his back at that time because he was proceeding through a high

security area.2 The three men eventually approached a narrow, four step staircase heading up to

the disciplinary hearing office.3

 As the stairs were too narrow for two people to climb them side-
4

Declaration of David Wilson, ¶ 6; Declaration of Mark Cote, ¶ 5-6; Deposition of

Plaintiff, pp. 38-39. 

5

Declaration of David Wilson, ¶ 7; Declaration of Mark Cote, ¶ 6; Deposition of Plaintiff,

pp. 37-38. 

6

Declaration of Mark Cote, ¶ 6; Deposition of Plaintiff, p. 37. 

7

Declaration of David Wilson, ¶ 8; Declaration of Mark Cote, ¶ 7. 

8

Declaration of David Wilson, ¶ 8; Declaration of Mark Cote, ¶ 7; Deposition of Plaintiff,

pp. 39-40. 

9

Id.

10Declaration of John Upp, ¶ 4, attached as Exhibit 7 to Defendants’ Motion for Summary

Judgment. 

11Declaration of John Upp, ¶ 4; Inmate Injury Assessment and Followup, attached as

Attachment A to Exhibit 7 to Defendants’ Motion for Summary Judgment.

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by-side, plaintiff proceeded up the steps with Officer Wilson behind him.4

 Plaintiff lost his

balance and fell forward, landing on his shoulder.5 Plaintiff was unable to break his fall with his

hands as they were restrained behind his back.6 The officers helped plaintiff up and walked with

him to a bench outside the disciplinary hearing office.7 They also removed his restraints, so that

plaintiff could check his shoulder, and they suggested that he seek medical attention.8

 The

disciplinary hearing was subsequently cancelled and Officer Cote escorted plaintiff to Health

Services.9

 

At approximately 1:42 p.m. on that same day, defendant John Upp, a registered nurse at

FCI Milan, assessed plaintiff’s injuries.10 According to Upp’s Declaration and treatment notes,

while plaintiff reported that he “was cuffed and fell on [his] left shoulder[,]” Upp evaluated

plaintiff and noted that his shoulder was not swollen or deformed.11 Moreover, Upp observed
12Declaration of John Upp, ¶ 5. 

13Declaration of John Upp, ¶¶ 5-6. 

14Declaration of John Upp, ¶ 6. 

15Declaration of Eleizer Sta. Cruz, ¶ 4, attached as Exhibit 8 to Defendants’ Motion for

Summary Judgment; Medical Record, August 13, 2007; attached as Attachment A to Exhibit 8 to

Defendants’ Motion for Summary Judgment. 

16Id. 

17Id. 

18Declaration of Eleizer Sta. Cruz, ¶ 5; Medical Record, August 27, 2007; attached as

Attachment B to Exhibit 8 to Defendants’ Motion for Summary Judgment. 

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that plaintiff had a full range of motion in his shoulder and an equal strength grip in each hand.12

Given those findings, Upp concluded that plaintiff was not seriously injured and he only

provided plaintiff with Ibuprofen and counseled him to elevate and ice his shoulder.13 Upp also

asserts that he told plaintiff that, if plaintiff’s shoulder pain persisted, plaintiff should follow up

with a nurse in the morning.14

On August 13, 2007, defendant Eleizer Sta. Cruz, a physician’s assistant at FCI Milan,

assessed plaintiff.15 According to Sta. Cruz’s Declaration and treatment notes, plaintiff told Sta.

Cruz that his shoulder felt better, but that now his back hurt, pain radiated to his left leg, and he

had a right thumb injury.16 Sta. Cruz’s physical examination of plaintiff’s back, shoulder, and

thumb did not reveal any significant findings and, because he assessed plaintiff’s condition as

not serious, Sta. Cruz advised plaintiff to manage his pain with cold compresses and Ibuprofen.17

On August 27, 2007, Sta. Cruz again assessed plaintiff after plaintiff complained of lower

back pain.18 According to Sta. Cruz’s Declaration and treatment notes, he examined plaintiff and
19Id. 

20Id. 

21X-ray results, August 30, 2007; attached as an Exhibit to Plaintiff’s Response and as

part of Exhibit 11 to Defendants’ Motion to Summary Judgment. 

22Declaration of Restituto Pomaloy, ¶ 4, attached as Exhibit 9 to Defendants’ Motion for

Summary Judgment; Medical Record, August 27, 2007, attached as Attachment A to Exhibit 9 to

Defendants’ Motion for Summary Judgment. 

23Id. 

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again determined that plaintiff’s back condition was relatively minor.19 Sta. Cruz recommended

Ibuprofen and moist heat compresses to lessen plaintiff’s low back pain, and he also requested

x-rays of plaintiff’s lumbosacral spine as a precaution.20 The x-ray of plaintiff’s lumbosacral

spine was negative and it showed no evidence of a recent or old fractures, no bone changes and

that plaintiff’s sacroiliac joints appeared normal.21

On September 6, 2007, defendant Restituto Pomaloy, a physician’s assistant at FCI

Milan, assessed plaintiff for pain in plaintiff’s lower back.22 According to Pomaloy, after

conducting a physical examination, he provided plaintiff with materials on specific back

exercises that, if done consistently, could help alleviate plaintiff’s back pain.23
24Declaration of Eleizer Sta. Cruz, ¶ 7; Medical Record, September 17, 2007; attached as

Attachment C to Exhibit 8 to Defendants’ Motion for Summary Judgment. 

25Id. 

26X-ray results, October 2, 2007, October 9, 2007; attached as Exhibits to Plaintiff’s

Response and as part of Exhibit 11 to Defendants’ Motion for Summary Judgment; Declaration

of Eleizer Sta. Cruz, ¶ 7. 

27Declaration of Restituto Pomaloy, ¶ 5; Medical Record, January 7, 2008, attached as

Attachment B to Exhibit 9 to Defendants’ Motion for Summary Judgment. 

28Id. 

29Id. 

30Id. 

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On September 17, 2007, Sta. Cruz assessed plaintiff for pain in his right thumb and lower

back.24 According to his Declaration and treatment notes, after that examination, Sta. Cruz again

recommended Ibuprofen and moist heat compresses for pain management, while also informing

plaintiff about stretching exercises that could reduce stiffness in plaintiff’s back.25 Defendant

Sta. Cruz also requested x-rays of plaintiff’s right thumb and right hand, and those x-rays

revealed no abnormalities.26

On January 7, 2008, Pomaloy assessed plaintiff for pain in plaintiff’s lower back and

right elbow.27 According to his Declaration and treatment notes, Pomaloy’s examination

revealed tenderness and a cystic nodule in plaintiff’s elbow.28 Pomaloy also observed that

plaintiff’s back was tender when plaintiff bent over, but Pomaloy did not observe any other

deformity.29 Pomaloy counseled plaintiff to take Ibuprofen and apply ice, in addition to also

requesting x-rays of plaintiff’s lumbosacral spine and right elbow.30 The x-ray of plaintiff’s right
31X-ray results, January 15, 2008, attached as an Exhibit to Plaintiff’s Response and as

part of Exhibit 11 to Defendants’ Motion for Summary Judgment. 

32Id. 

33Declaration of Stephen Gidel, ¶¶ 1-4, attached as Exhibit 1 to Defendants’ Motion for

Summary Judgment; Medical Record, January 25, 2008, attached as Attachment A to Exhibit 1

to Defendants’ Motion for Summary Judgment. 

34Declaration of Stephen Gidel, ¶ 4; Medical Record, January 25, 2008.

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elbow revealed: “Mild degenerative changes of the ulnar humeral and radial humeral joints. 

There are some small bony fragments at the coronoid and olecranon processes of the ulna. A

few of these could represent loose bodies within the elbow joint.”31 Additionally, with respect to

plaintiff’s lumbosacral spine, the x-rays showed no evidence of recent or old fractures, no bone

changes and that the alignment of plaintiff’s vertebrae was normal.32

On January 25, 2008, defendant Stephen Gidel, a physician’s assistant, examined

plaintiff.33 According to Gidel’s Declaration and treatment notes, plaintiff requested the results

of previous x-rays of his elbow and a refill of his prescription for Ibuprofen during the visit. 

(Declaration of Stephen Gidel, ¶ 4; attached as Exhibit 1 to Defendants’ Motion for Summary

Judgment; Medical Record, January 25, 2008; attached as Attachment A to Exhibit 1 to

Defendants’ Motion for Summary Judgment) Gidel advised plaintiff of the results of the x-rays

and refilled the prescription for Ibuprofen, while also cautioning plaintiff not to exceed the

recommended daily dosage.34 
35Declaration of Stephen Gidel, ¶ 5; Medical Record, February 19, 2008, attached as

Attachment B to Exhibit 1 to Defendants’ Motion for Summary Judgment. 

36Id. 

37Id.

38Declaration of Stephen Gidel, ¶ 6; Medical Record, April 28, 2008, attached as

Attachment C to Exhibit 1 to Defendants’ Motion for Summary Judgment. 

39Id. 

40Inmate Request to Staff, June 30, 2008; attached as an Exhibit to Plaintiff’s Response. 

41Id. 

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On March 10, 2008, Gidel examined plaintiff after plaintiff complained of low back

pain.35 According to his Declaration and treatment notes, Gidel assessed plaintiff and

determined that plaintiff had a decreased range of motion in his back, a flattened lumbar curve,

and some tenderness.36 Gidel also noted at that time that plaintiff’s gait and x-rays were normal,

and he therefore recommended that plaintiff manage his pain with moist heat compresses and

analgesics, such as Ibuprofen.37

Gidel’s Declaration and treatment notes also state that, on April 28, 2008, plaintiff

reported to Gidel that plaintiff had a problem with his right elbow and that he had visited Health

Services several times, only to be told that nothing was wrong.38 The Declaration and notes

further state that plaintiff was quite upset and left the clinic angry.39 

On June 30, 2008, plaintiff submitted a form requesting medical treatment for pain.40 On

July 1, 2008, the request was replied to and, in that response, plaintiff was advised to talk to a

physician’s assistant.41 
42Inmate Request to Staff, July 3, 2008; attached as an Exhibit to Plaintiff’s Response. 

43Id. 

44Inmate Request to Staff, July 10, 2008; attached as an Exhibit to Plaintiff’s Response. 

45Id. 

46Declaration of Stephen Gidel, ¶ 7; Medical Record, August 15, 2008; attached as

Attachment D to Exhibit 1 to Defendants’ Motion for Summary Judgment. 

47Id. 

48Declaration of Stephen Gidel, ¶ 7.

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On July 3, 2008, plaintiff submitted a form requesting medical treatment for his right

elbow.42 On July 9, 2008, a prison staff member responded and stated that plaintiff should sign

up for sick call.43 

On July 10, 2008, plaintiff submitted a form requesting a referral to an orthopedic

surgeon for medical treatment for his right elbow and hand.44 That same day, a prison staff

member responded and again stated that plaintiff should sign up for sick call.45

On August 15, 2008, Gidel assessed plaintiff after plaintiff complained about pain in his

right elbow.46 According to Gidel’s Declaration and treatment notes, the examination confirmed

Gidel’s earlier assessment that the source of plaintiff’s pain was degenerative change associated

with mild arthritis and that the pain could be conservatively managed with Ibuprofen.47 Gidel

also states, however, that he still requested a referral to an orthopedic surgeon for a consultation

due to the persistence of plaintiff’s complaints.48
49Declaration of William Malatinsky, M.D., ¶¶ 2-5, attached as Exhibit 10 to Defendants’

Motion for Summary Judgment; Record of Clinical Encounter; attached as Attachment A to

Exhibit 10 to Defendants’ Motion for Summary Judgment. 

50Declaration of William Malatinsky, M.D., ¶ 5; Record of Clinical Encounter. 

51Declaration of William Malatinsky, M.D., ¶ 5.

52Declaration of Kanwaldeep S. Sidhu, M.D., ¶¶ 1-3, attached as Exhibit 17 to

Defendants’ Motion for Summary Judgment; Consultation Sheet; attached as Attachment A to

Exhibit 17 to Defendants’ Motion to Dismiss. 

53Declaration of Kanwaldeep S. Sidhu, M.D., ¶ 4; Consultation Sheet. 

54Id. 

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On August 20, 2008, defendant William Malatinsky, M.D., FCI Milan’s Clinical

Director, assessed plaintiff’s right elbow and lower back.49 According to his Declaration and

treatment notes, Malatinsky found plaintiff’s right elbow to be essentially normal and that his

lower back was slightly tender.50 Malatinsky also states that, as an exercise of caution, he

approved the pending consultation request for further evaluation of plaintiff’s elbow by an

orthopedic specialist.51

On August 27, 2008, Kanwaldeep S. Sidhu, M.D., an orthopedic surgeon, examined

plaintiff.52 According to Dr. Sidhu’s Declaration and consultation sheet, he found that plaintiff

had no tenderness, a full range of motion, and normal flexion and extension upon physical

examination.53 With respect to the x-rays plaintiff had undergone, Dr. Sidhu noted mild

degenerative joint disease and possible small bony fragments at olecronan process.54 In
55Id.

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conclusion, Dr. Sidhu noted that there were no surgical indicators and he recommended that

plaintiff try the medication Feldene for three weeks.55

III. Standard of Review

Defendants move for summary judgment pursuant to Fed. R. Civ. P. 56(b). That rule

states that “[a] party against whom a claim, counterclaim, or cross-claim is asserted or a

declaratory judgment is sought may, at any time, move without or without supporting affidavits

for a summary judgment in the party’s favor as to all or any part thereof.” Summary judgment is

appropriate where “the pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).

In deciding a motion for summary judgment, the court must view the evidence and draw

all reasonable inferences in favor of the non-movant. See Matsushita Electric Industrial Co.,

Ltd. et al. v. Zenith Radio Corp., et. al., 475 U.S. 547, 587, 106 S.Ct. 1348, 1356 (1986); see also

B.F. Goodrich Co. v. U.S. Filter Corp., 245 F.3d 587, 591-92 (6th Cir. 2001). The moving party

bears the initial burden of demonstrating the absence of a genuine issue of material fact. Once

the moving party has carried his burden, the party opposing the motion “must come forward with

specific facts showing that there is a genuine issue for trial.” Matsushita, 475 U.S. at 587, 106

S.Ct. 1348. The opposing party cannot merely rest upon the allegations contained in his

pleadings. Rather, he must submit evidence demonstrating that material issues of fact exist. 

Banks v. Wolfe County Bd. of Educ., 330 F.3d 888, 892 (6th Cir. 2003); Fed. R. Civ. P. 56(e). 
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“Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587, 106 S.Ct. 1348

(quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289, 88 S.Ct. 1575,

1592 (1968)).

IV. Discussion

As discussed above, defendants seek summary judgment on plaintiff’s claims against

them in their official and individual capacities. However, in his response, plaintiff concedes that

he is only suing defendants in their individual capacities and that any claims against defendants

in their official capacities are waived. Therefore, this court recommends that defendants be

granted summary judgment on such claims, to the extent plaintiff makes them, and will only

discuss the claims against defendants in their individual capacities. With respect to those claims,

defendants all argue that they are entitled to qualified immunity. Defendants Bayoneto also

argues that he is entitled to summary judgment due to a lack of personal involvement in the

alleged constitutional violations. This court agrees with both arguments made by defendants. 

A. Qualified Immunity

Defendants all argue that they are entitled to qualified immunity with respect to

plaintiff’s claim that they were deliberately indifferent to his serious medical needs. Qualified

immunity is “an entitlement not to stand trial or face the other burdens of litigation.” Saucier v.

Katz, 533 U.S. 194, 200; 121 S.Ct. 2151; 150 L.Ed.2d 272 (2001) overruled in part by Pearson

v. Callahan, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009), (quoting Mitchell v. Forsyth, 472 U.S. 511,

526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). The privilege is an immunity from suit and not a
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mere defense to liability. Saucier, 533 U.S. at 200. As a result, courts have “repeatedly have

stressed the importance of resolving immunity questions at the earliest possible stage in

litigation.” Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per

curiam).

“A court should not grant summary judgment on the issue of qualified immunity if there

exists a genuine issue of material fact, ‘involving an issue on which the question of immunity

turns, such that it cannot be determined before trial whether the defendant did acts that violate

clearly established rights.’” Flint ex rel. Flint v. Kentucky Dept. of Corrections, 270 F.3d 340,

346-347 (6th Cir. 2001) quoting Poe v. Haydon, 853 F.2d 418, 425-426 (6th Cir. 1988). A court

required to rule upon the qualified immunity issue must consider whether the facts alleged show

the officer’s conduct violated a constitutional right and whether that constitutional right was

clearly established. Saucier, 533 U.S. at 201. In making those inquiries, courts are “permitted to

exercise their sound discretion in deciding which of the two prongs of the qualified immunity

analysis should be addressed first in light of the circumstances in the particular case at hand.” 

Pearson, 129 S.Ct. at 818. “This inquiry, it is vital to note, must be undertaken in light of the

specific context of the case, not as a broad general proposition; and it too serves to advance

understanding of the law and to allow officers to avoid the burden of trial if qualified immunity

is applicable.” Saucier, 533 U.S. at 201. 

Here, defendants only argue that there was no constitutional violation and they concede

that the constitutional right was clearly established. Elementary principles concerning the Eighth

Amendment's proscription of cruel and unusual punishment establish the government's
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obligation to provide medical care for those whom it is punishing by incarceration. Estelle v.

Gamble, 429 U.S. 97, 102-103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). A prisoner’s claim that his

constitutional right to medical treatment was violated is analyzed under the Eighth Amendment. 

See Estelle, 429 U.S. at 103-104. To state a § 1983 claim for a violation of a prisoner’s Eighth

Amendment rights due to inadequate medical care, the prisoner must allege facts evidencing a

deliberate indifference to serious medical needs. Wilson v. Seiter, 501 U.S. 294, 297, 111 S.Ct.

2321, 115 L.Ed.2d 271 (1991). 

To succeed on a claim of deliberate indifference, plaintiff must satisfy two elements, an

objective one and a subjective one. Wilson, 501 U.S. at 300. The objective element is satisfied

by a showing that plaintiff had a serious medical need. Wilson, 501 U.S. at 297. “‘Where the

seriousness of a prisoner’s need[ ] for medical care is obvious even to a lay person,’ this

obviousness is itself sufficient to satisfy the objective component of the adequate medical care

test.” Johnson v. Karnes, 398 F.3d 868, 874 (6th Cir. 2005), quoting Blackmore v. Kalamazoo

County, 390 F.3d 890, 899 (6th Cir. 2004). However if the need involves minor needs or

non-obvious complaints of a serious need for medical care, the plaintiff “‘must place verifying

medical evidence in the record to establish the detrimental effect of the delay in medical

treatment.’” Johnson, 398 F.3d at 874, quoting Napier v. Madison County, Kentucky, 238 F.3d

739, 742 (6th Cir. 2001). To satisfy the subjective component of the adequate medical care test,

the plaintiff must demonstrate that the defendant “subjectively perceived a risk of harm and then

disregarded it.” Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001).
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Deliberate indifference is characterized by obduracy and wantonness, not inadvertence or

good faith error. Gibson v. Foltz, 963 F.2d 851, 853 (6th Cir. 1992). Moreover, where the

prisoner has received some medical attention and the dispute is over the adequacy of the

treatment, courts are reluctant to second guess medical judgments, Westlake v. Lucas, 537 F.2d

857, 860 n. 5 (6th Cir. 1976), and deliberate indifference does not include negligence in

diagnosing a medical condition. Sanderfer v. Nichols, 62 F.3d 151, 154 (6th Cir. 1995)

(citations omitted). However, it is not necessary for a plaintiff to “show that the official acted

‘for the very purpose of causing harm or with knowledge that harm will result.’” Comstock, 273

F.3d at 703, quoting Farmer, 511 U.S. at 835. Put simply, “deliberate indifference to a

substantial risk of serious harm to a prisoner is the equivalent of recklessly disregarding that

risk.” Comstock, 273 F.3d at 703, quoting Farmer, 511 U.S. at 835.

Here, given the extensive medical record detailed above, it is clear that plaintiff has

received significant medical attention and that plaintiff's claim of alleged deliberate indifference

is merely a case of disagreement with the course of treatment provided, which is insufficient to

establish an Eighth Amendment violation. Plaintiff has been examined by medical personnel

and undergone x-rays numerous times following his fall. He has also been prescribed pain

medications and been advised of exercises that can relieve pain. Additionally, plaintiff was seen

by a specialist, as he requested, and that specialist concurred with plaintiff’s earlier treatment. 

As discussed above, the Sixth Circuit distinguishes “between cases where the complaint

alleges a complete denial of medical care and those cases where the claim is that a prisoner

received inadequate medical treatment.” Westlake, 537 F.2d at 860 n. 5. Where, as here, “a
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prisoner has received some medical attention and the dispute is over the adequacy of the

treatment, federal courts are generally reluctant to second guess medical judgments and to

constitutionalize claims which sound in state tort law.” Westlake, 537. F.2d at 860 n. 5. 

Therefore, this court recommends that defendants’ motion for summary judgment be granted.

B. Personal Involvement

To succeed in under § 1983 , a plaintiff must show personal involvement by the

defendant in the constitutional violation. Copeland v. Machulis, 57 F.3d 476, 481 (6th Cir.

1995) (per curiam). A respondeat superior theory of liability, based on the right to control

employees, is not cognizable under 42 U.S.C. § 1983. See Turner v. City of Taylor, 412 F.3d

629, 649 (6th Cir. 2005); Hays v. Jefferson County, Ky., 668 F.2d 869, 874 (6th Cir. 1982). 

“Thus, a supervisory official’s failure to supervise, control or train the offending individual is not

actionable unless the supervisor either encouraged the specific incident of misconduct or in some

other way directly participated in it. At a minimum a plaintiff must show that the official at least

implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the

offending officers.” Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (citations omitted). 

Moreover, the Sixth Circuit held in Shehee that a denial of an administrative grievance and the

failure to remedy the alleged constitutional violation did not constitute sufficient involvement to

establish liability under 42 U.S.C. § 1983. Shehee, 199 F.3d at 300. 

In this case, defendant Bayoneto’s Declaration provides that, while he is a physician’s

assistant at FCI Milan, he has not provided any medical treatment to plaintiff since August 8,

2007, which was prior to plaintiff’s fall. (Declaration of Mario Bayoneto, ¶¶1-3; attached as
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Exhibit 14 to Defendants’ Motion for Summary Judgment) Moreover, defendant Bayoneto’s

name does not appear in any of the medical records provided by the parties in this case and

plaintiff has not submitted any evidence suggesting that Bayoneto was personally involved in the

alleged constitutional violations. Therefore, this court also recommends that defendant

Bayoneto be granted summary judgment due to a lack of personal involvement. 

V. Conclusion

For the reasons discussed above, the court recommends that defendants’ motion be

GRANTED, summary judgment be entered in favor of defendants, and this case be closed. 

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

Recommendation, but are required to act within fourteen (14) days of service of a copy hereof as

provided for in 28 U.S.C. § 636(b)(1) and E.D. Mich. LR 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. Secretary of HHS, 932 F.2d 505, 508 (6th Cir. 1991); United States v.

Walters, 638 F.2d 947, 949-50 (6th Cir. 1981). The filing of objections which 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. Secretary of HHS, 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).
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Within fourteen (14) days of service of any objecting party’s timely filed objections, the

opposing party may file a response. The response shall be no more than 20 pages in length

unless, by motion and order, the page limit is extended by the court. The response shall address 

each issue contained within the objections specifically and in the same order raised.

S/Virginia M. Morgan 

Virginia M. Morgan

United States Magistrate Judge

Dated: September 30, 2010

 

PROOF OF SERVICE

The undersigned certifies that the foregoing document was served upon counsel of record and Earnest

Taylor via the Court’s ECF System and/or U. S. Mail on September 30, 2010.

s/J. Johnson 

Case Manager to

Magistrate Judge Virginia M. Morgan