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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JAMES WERDLOW # 186514,

Plaintiff, CASE NUMBER: 09-11009

HONORABLE VICTORIA A. ROBERTS

v.

PATRICIA CARUSO, et al.,

Defendants.

 /

ORDER

I. INTRODUCTION

This matter is before the Court on two motions: (1) Defendant Debora Beeker’s

Motion for Summary Judgment (Doc. # 36) and (2) Defendant Elizabeth Levine’s Motion

for Summary Judgment. (Doc. # 44) For the reasons discussed below, the Court

GRANTS both motions and enters judgment in favor of Defendants.

II. BACKGROUND

On March 18, 2009, Plaintiff James Lee Werdlow, a prisoner at Carson City

Correctional Facility, filed a complaint against Defendants, both registered nurses for

the Michigan Department of Corrections (MDOC) in October 2006 when Werdlow

underwent emergency surgery to repair his collapsed left lung, Werdlow alleges that

Defendants’ response to his medical complaints amounts to deliberate indifference to

his serious medical needs, in violation of the Eighth Amendment to the United States

Constitution. He filed suit against Defendants in both their individual and official

capacities, seeking damages. He now concedes that Defendants are entitled to
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immunity in their official capacities but still seeks to hold them personally liable.

On October 10, 2006, while Werdlow was incarcerated at the Saginaw Regional

Correctional Facility, he submitted a health care request to prison officials complaining

of severe upper respiratory chest pain. Werdlow states in his complaint that “on no less

than five (5) separate occasions, both nurses[ ] used stethoscopes and other medical

devices,” and concluded that his vital signs were within a normal range. He says that

Defendants gave him Tylenol and instructed him to return to his unit to rest. When

Werdlow told Defendants that laying down exacerbated his chest pains, they allegedly

told him that there was no doctor on duty on the weekends and that he would be placed

on “call-out” to see a doctor on Monday morning. 

The record reveals that on October 11, Nurse Roy Gardner examined Werdlow. 

Gardner examined him again on October 13 and filled out a patient report indicating that

Werdlow wanted to see a doctor to discuss his medications and the adverse side effects

of his Norvasc medication. The report indicates that Werdlow believed his chest

discomfort to be the result of “excess gas and heartburn.” The results of Werdlow’s

physical examination were normal. 

On October 15 Werdlow returned to the Health Care Unit. He was examined by

Levine at 3:06 pm. He was again experiencing chest pains. Levine noted that there

was no radiation of pain. Levine concluded that Werdlow’s vital signs were normal, and

noted that his examination on October 13 also yielded normal results. She instructed

Werdlow to return to his unit, rest, and to call Health Care if his symptoms worsened. 

Approximately two hours later Werdlow returned. Levine examined him again. Levine

made no abnormal findings and when Werdlow told her he may have to see a doctor
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that evening, she responded that she could not send him to a doctor “with the clinical

findings he [was] presenting.” Werdlow asked, “what do I have to do–done fall out?” 

Levine wrote a note that Werdlow may “fall out.” She scheduled an appointment for him

to see a doctor the next morning. 

In the early morning hours of October 16, Werdlow returned to the Health Care

Unit. Beeker examined him. Beeker noted that Werdlow complained of tightness in his

chest, as if his lungs were constricted. She also noted that Werdlow was very vague in

his description of his symptoms, “saying it could be indigestion....” Beeker indicated in

her report that Werdlow was making limited efforts to breathe deeply. According to the

report, when asked to breathe deeply he took quick, shallow breaths, however, when

talking and not concentrating on his breathing, his oxygen measurements were better. 

She observed that his lungs remained clear. Beeker prescribed some medication and

noted again that Werdlow’s complaints were vague. The report indicates that Werdlow

insisted on seeing a doctor immediately, “to the point of becoming irate.”

The next morning Dr. Jan Goldberger examined Werdlow. Dr. Goldberger’s

report also indicates that Werdlow’s complaints were vague. After examining Werdlow

with a stethoscope, Dr. Goldberger sent him to the emergency room. Werdlow says

doctors at Covenant Hospital discovered that his left lung had collapsed. He states they 

performed emergency surgery on him. 

III. ARGUMENTS AND ANALYSIS

Defendants contend they are entitled to immunity from suit in both their individual

and official capacities -- qualified immunity in their individual capacities and Eleventh
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Amendment immunity in their official capacities. 

Werdlow agrees that Defendants are entitled to immunity in their official

capacities, but argues that they are not entitled to qualified immunity in their individual

capacities. Werdlow contends that Defendants’ motions should be denied because their

conduct demonstrates a custom of characterizing his medical complaints as vague. He

further argues that Defendants used derogatory language to describe his complaints

and condition, and that their mockery demonstrates their culpable state of mind. 

A. Legal Standard

The Court will grant summary judgment in favor of the moving party if that party

establishes that “the pleadings, the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material fact and that the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2); Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986). “[W]hen a properly supported motion for

summary judgment is made, the adverse party ‘must set forth specific facts showing

that there is a genuine issue for trial.’” Anderson v. Liberty Lobby, 477 U.S. 242, 250

(1986); Fed. R. Civ. P. 56(e)(2). The Court views the evidence in favor of the nonmoving party. Leahy v. Trans Jones, Inc., 996 F.2d 136, 138 (6th Cir. 1993). However,

the evidence supporting the plaintiff’s position must be more than a mere scintilla; it

must be sufficient for the jury to reasonably find in favor of the plaintiff. Liberty Lobby,

477 U.S. at 252. “The judge’s inquiry, therefore, unavoidably asks whether reasonable

jurors could find by a preponderance of the evidence that the plaintiff is entitled to a

verdict- whether there is evidence upon which a jury can properly proceed to find a

verdict for the party producing it, upon whom the onus of proof is imposed.” Id. (citation
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and internal quotation marks omitted) (emphasis in original).

B. Defendants are entitled to qualified immunity

Qualified immunity is an affirmative defense which “provides ample protection to

all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs,

475 U.S. 335, 341 (1986). In a qualified immunity case, “[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.” Turner v. Scott, 119 F.3d 425,

429 (6th Cir. 1997). “Stated differently, a defendant enjoys qualified immunity on

summary judgment unless the facts alleged and the evidence produced, when viewed in

the light most favorable to the plaintiff, would permit a reasonable juror to find that (1)

the defendant violated a constitutional right; and (2) the right was clearly established.”

Aldini v. Johnson, 609 F.3d 858, 863 (6th Cir. 2010) (citation and internal quotation

marks omitted). Once qualified immunity is raised as a defense to the action, the burden

is on the plaintiff to demonstrate that the officials are not entitled to qualified immunity.

Binay v. Bettendorf, 601 F.3d 640, 647 (6th Cir. 2010). The two-part burden outlined

above is a heavy one for the plaintiff to overcome. See Goss v. Pirtle, 245 F.3d 1151,

1155 (10th Cir. 2001) (citation and internal quotation marks omitted).

In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court mandated that

courts consider prongs one and two of this two-part analysis in sequential order.

Recently, in Pearson v. Callahan, — U.S. ----, 129 S.Ct. 808, 818 (2009), the Supreme

Court abandoned this mandatory sequence, leaving it within a court’s discretion to
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undertake the two-part analysis in which ever order it deems most appropriate.

“However, because Pearson left in place Katz’s core analysis, all Pre- Pearson case law

remains good law.” Aldini, 609 F.3d at 863 (citing Jones v. Byrnes, 585 F.3d 971, 975)).

“Evaluating the defense of qualified immunity on a motion for summary judgment

requires that the court ‘adopt the plaintiff’s version of the facts.’” Drogosch v. Metcalf,

557 F.3d 372, 377 (6th Cir. 2009) (quoting Scott v. Harris, 550 U.S. 372 (2007)).

In Estelle v. Gamble, the Supreme Court concluded that “the deliberate

indifference to serious medical needs of prisoners constitutes the ‘unnecessary and

wanton infliction of pain,’ ...proscribed by the Eighth Amendment.” Id. at 104 (quoting

Gregg v. Georgia, 428 U.S. 153, 173 (1976)). Deliberate indifference can be manifested

in health care staff’s response to a prisoner’s medical needs. Id. (citing William v.

Vincent, 508 F.2d 541 (2d Cir. 1974)). For example, the Sixth Circuit has said that “[a]

plaintiff may establish deliberate indifference...by a showing of grossly inadequate

medical care.” See Cook v. Martin, 148 Fed.Appx. 327, 2005 WL 2175922, *10-*11 (6th

Cir. July 27, 2005) (citing cases). 

Nonetheless, “[not] every claim by a prisoner that he has not received adequate

medical treatment states a violation of the Eighth Amendment.” Estelle, at 105. A

complaint that a health care provider was negligent in diagnosing or treating an ailment,

or otherwise inadvertently failed to provide adequate medical care, does not state a

valid claim under the Eighth Amendment. Id. at 105-06; see also Whitley v. Albers, 475

U.S. 312, 319 (1986) (“To be cruel and unusual punishment, conduct that does not

purport to be punishment at all must involve more than ordinary lack of due care for the

prisoner’s interests or safety.”). In Farmer v. Brennan, 511 U.S. 825, 834 (1994), the
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Supreme Court explained that a prisoner cannot show that he was subjected to cruel

and unusual punishment at the hands of a prison official unless the deprivations alleged

are sufficiently serious and the prison official had a sufficiently culpable state of mind.

In order to hold Defendants liable for deliberate indifference to his serious

medical needs, Werdlow must establish that Defendants knew of and disregarded an

excessive risk to his health and safety when they responded to his medical complaints.

Farmer, 511 U.S. at 838 (1994). They must have been “aware of facts from which the

inference could be drawn that a substantial risk of serious harm exist[ed], and [they]

must [have] also draw[n] the inference.” Id. Courts may infer the existence of a culpable

state of mind from the fact that the risk of harm is obvious. Hope v. Pelzer, 536 U.S.

730, 738 (2002) (citing Farmer, 511 U.S. at 842). However, “[e]mphasizing the

subjective nature of this inquiry, the Supreme Court has noted that ‘an official’s failure to

alleviate a significant risk that he should have perceived but did not, while no cause for

commendation, cannot...be condemned as the infliction of punishment.’” Comstock v.

McCrary, 273 F.3d 693, 703 (6th Cir. 2001) (quoting Farmer, 511 U.S. at 838)

(emphasis added in Comstock). Moreover, “a complaint that a physician has been

negligent in diagnosing or treating a medical condition does not state a valid claim of

medical mistreatment under the Eighth Amendment. Medical malpractice does not

become a constitutional violation merely because the victim is a prisoner.” Estelle, 429

U.S. at 105. 

Assuming, without deciding, that Defendants’ conduct violated Werdlow’s right to

be free from cruel and unusual punishment, the Court finds that it was not clearly

established that Defendants’ conduct violated that right, and Defendants are entitled to
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qualified immunity on that ground. The Supreme Court, in Pelzer, explained the object

of the “clearly established” immunity standard, and how that standard is met, as follows:

[Q]ualified immunity operates “to ensure that before they are subjected to

suit, officers are on notice their conduct is unlawful.” Saucier v. Katz, 533

U.S., at 206, 121 S.Ct. 2151. For a constitutional right to be clearly

established, its contours “must be sufficiently clear that a reasonable

official would understand that what he is doing violates that right. This is

not to say that an official action is protected by qualified immunity unless

the very action in question has previously been held unlawful, see Mitchell

v. Forsyth, 472 U.S. 511, 535, n. 12, 105 S.Ct. 2806, 86 L.Ed.2d 411; but

it is to say that in light of pre-existing law the unlawfulness must be

apparent.” Anderson v. Creighton, 438 U.S. 635, 640, 107 S.Ct. 30334, 97

L.Ed.2d 523 (1987).

536 U.S. at 739. 

“[T]he salient question...is whether the state of the law in [2006] gave

respondents fair warning that their alleged treatment of [complainant] was

unconstitutional.” Id. at 741. The standard turns on “the objective legal reasonableness

of an official’s acts.” Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982). “This inquiry...must

be undertaken in light of the specific context of the case.” Katz, 533 U.S. at 201. Thus,

“[t]he relevant, dispositive inquiry in determining whether a right is clearly established is

whether it would be clear to a reasonable [official] that [her] conduct was unlawful in the

situation [she] confronted.” Brosseau v. Haugen, 543 U.S. 194, 199 (2004).

From Werdlow’s account, on the weekend of October 15, 2006, he complained to

unit officers that he was experiencing chest pain and having trouble breathing. As a

result, “[o]n no less than five (5) separate occasions [Defendants] used stethoscopes

and other medical devices” and determined that Werdlow’s vital signs were normal. 

Defendants gave Werdlow Tylenol for the pain and instructed him to rest. When he

responded that laying down exacerbated the problem and requested to see a doctor, he
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was told that there was no doctor on duty and that he would be seen by a doctor on the

following Monday morning, October 16, 2006. 

Werdlow’s medical records reveal he visited Levine on October 15, 2006 around

5:00 pm. Levine’s progress note from that visit indicates that she examined Werdlow

earlier that day and that since the examination Werdlow complained that the pain was

worse. At the earlier examination Levine noted that there was no radiation of pain, no

murmur and that Werdlow’s breathing was even and unlabored. There were no

abnormal findings. (Id.)

Levine re-examined Werdlow, checked his vital signs, and determined that she

could not send him to the hospital with the clinical signs he was presenting. Instead,

she sent him back to his unit and scheduled an appointment for him to see a doctor at

8:00 a.m. the next day. In the early morning hours of October 16, Werdlow returned to

the Health Care Unit and was this time examined by Beeker. Beeker’s notes indicate

Werdlow was sleeping with no problems when he suddenly awoke, complaining of

tightness in his chest as if his lungs were constricted. Her notes state that Werdlow’s

complaints were very vague and that he thought he could be experiencing the effects of

indigestion. Beeker examined Werdlow and made no abnormal findings, although she

did note that his breathing was quick and shallow. Beeker prescribed several

medications and noted that Werdlow had an appointment with a doctor in the morning. 

Werdlow’s medical records from earlier in the week show that he complained of

side effects from his blood pressure medication and from the effects of heartburn and

gas. Records from October 13, 2006 indicate that Werdlow described his chest

discomfort as resulting from excess gas and heartburn, and possibly related to the
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adverse side effects of a medication he was taking. The nurse who examined him on

that day made no abnormal findings. 

While Defendants probably should have taken Werdlow’s complaints more

seriously, “[w]here a 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 v. Lucas, 537 F.2d 857, 860 n. 5 (6th Cir. 1976). Because of this reluctance,

Werdlow can hardly argue that the law at the time in question clearly established that

Defendants’ conduct violated the Constitution. 

Werdlow does not claim that he received no treatment at all or that his

complaints were completely ignored. Rather, he challenges the adequacy of the

examinations conducted and of the treatment he received. He essentially argues that he

was mis-diagnosed and that Defendants should have sent him to a doctor right away.

However, “a prisoner who merely disagrees with a diagnosis or a prescribed course of

treatment does not state a constitutional violation.” Perkins v. Kan. Dep’t of Corr., 165

F.3d 803, 811 (10th cir. 1999); see also Jennings v. Al-Dabagh, 275 F.Supp.2d 863,

870 (E.D. Mich. 2003) (“[T]he fact that a prisoner disagrees with a course of treatment

that he was prescribed, or even that the treatment he did receive was negligently

administered, does not rise to a constitutional violation.”). Thus, while it is doubtful that

Defendants’ conduct violated Werdlow’s constitutional rights at all–Werdlow even

seems to concede that Defendants did not draw the inference that a substantial risk of

serious harm existed, see Plaintiff’s Response to Elizabeth Levine’s Rule 56(b) Motion

for Summary Judgment, at p. 5 (“[T]he notations in the medical records signify their
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belief that there was nothing wrong with Plaintiff”)--it is clear that if their conduct did

violate the Constitution, Defendants were not on notice of the violation because it was

not clearly established, and they are entitled to qualified immunity.

An evaluation of relevant case law leads to the same conclusion. In a case

factually similar to this one, Cairelli v. Vakilian, the Sixth Circuit held that a prison doctor

who failed to diagnose and treat an inmate’s heart disease, resulting in the inmate’s

death, did not display deliberate indifference to the inmate’s serious medical need. 80

Fed.Appx. 979, 2003 WL 22718249, at * 7 (6th Cir. Nov. 17, 2003). The prisoner, Albert

Cairelli, exhibited symptoms similar to those suffered by Werdlow. He suffered

shortness of breath and chest pains. Id. at *2. He also experienced pain in his left arm.

Id. at * 1. Cairelli reported to the prison infirmary and was examined by a nurse. Id. The

nurse contacted the defendant doctor and described Cairelli’s symptoms. Id. at *2. The

defendant instructed the nurse to give Cairelli two Tylenol and to admit him to the

infirmary for observation. Id. The defendant examined Cairelli the next day, and

although he was aware that there was a history of heart disease in Cairelli’s family,

Cairelli was a smoker, two electrocardiogram (“EKG”) exams administered the previous

day came back abnormal, and Cairelli had been complaining of chest pains over the

prior two to three weeks, he “discharged him from the infirmary, ordered a cardiac

enzymes test, and prescribed one tablespoon of Pepto Bismol....” Id. The defendant did

not order the cardiac enzymes test to be expedited and Cairelli died of a heart attack

the next day. Id. 

Calling it a “close” case, the Sixth Circuit ultimately affirmed the district court’s

grant of summary judgment in favor of the defendant, holding that the plaintiff could not
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prove that the defendant “actually drew the inference that Cairelli was at substantial risk

of serious harm.” Id. at 5 (emphasis in original). The Sixth Circuit emphasized that it was

not enough for the plaintiff to show that the defendant objectively should have drawn the

inference. Id. The court concluded:

While Vakilian subjectively perceived facts that indicated to him that

Cairelli’s symptoms could be an indication of heart problems, the facts

also indicate that Vakilian inferred that it was more likely that Cairelli was

suffering from gastrointestinal distress. The fact that this conclusion was

incorrect, or even unreasonable, does not affect our analysis. ***

Where...a doctor is presented with symptoms that could indicate heart

attack or indigestion and the doctor treats indigestion when the problem is

actually a heart attack, we are hard pressed to find deliberate indifference

without a showing of subjective awareness, even when the decision to

treat indigestion is unreasonable. *** The fact that the symptoms may

have suggested that one problem was more likely than the other does not

mean that the facts were so obvious that Cairelli actually was having a

heart attack that awareness may be imputed to Vakilian.

Id. at *5-*6.

Thus, when action is taken in the face of prisoner complaints, a failure to

diagnose, or a mis-diagnosis, absent a showing that the defendant is subjectively aware

that the plaintiff prisoner is actually suffering from a different ailment, cannot be the

basis of an Eighth Amendment claim. See also Shade v. City of Middletown, Oh., 200

Fed.Appx. 566, 2006 WL 2986398, at *2-*3 (6th Cir. Oct. 17, 2006) (“Obviously, as

events unfolded, it became clear that Hogan failed to diagnose correctly that plaintiff

was suffering from West Nile Virus. ... But, it is also clear from the record that, contrary

to the plaintiff’s allegations, defendant Hogan did not callously ignore the serious

medical condition from which Shade was suffering. Instead, she closely monitored that

condition and took reasonable steps to address the outward manifestations.”); Gabehart

v. Chapleau, No. 96-5050, 110 F.3d 63 (Table), 1997 WL 160322, at *2 (6th Cir. Apr. 4,
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1997) (“We have carefully reviewed the record in this case and we are left with no doubt

that it does not contain sufficient evidence to permit a reasonable jury to conclude that

[Defendants] knew or suspected that Gabehart’s condition was as serious as it proved

to be. Without evidence from which a jury could infer that the defendants ‘consciously

disregarded a substantial risk of serious harm’ to Gabehart...there can be no finding that

the defendants’ treatment of Gabehart constituted cruel and unusual punishment.”)

(citation omitted). 

In another case, the Tenth Circuit affirmed the district court’s grant of summary

judgment to a nurse who treated a plaintiff prisoner who claimed to be experiencing

“continuing chest pain.” Mata v. Saiz, 427 F.3d 745, 750 (10th Cir. 2005). The plaintiff

described the pain to the nurse as an “eight” on a scale from “zero to ten.” Id. The nurse

performed an electrocardiogram (“EKG”) on the plaintiff and read the results as normal.

Id. She then gave the plaintiff a “lay-in” and a permission slip to allow her to miss work

and other prison-related duties that day. Id. It was determined the next day that the

plaintiff had suffered a heart attack and she subsequently suffered permanent and

irreversible heart damage and permanent disability. Id. 

Focusing on plaintiff’s normal EKG, the lack of pain in her arm, her normal color

and clear lungs, the court held that the record demonstrated that the nurse subjectively

believed that the plaintiff was not having a heart attack, and that her chest pain had

been relieved. Id. at 760. Similarly, both nurses Beeker and Levine examined Werdlow

using “stethoscopes and other medical devices” and found nothing abnormal. They had

access to his medical records, which indicated that just one or two days before,

Werdlow attributed his chest discomfort to heartburn and gas, and possibly to the
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effects of a medication that he decided to stop taking. Although Werdlow complained of

some troubling symptoms, his complaints were vague, as noted not only by Beeker, but

by the doctor who examined him on Monday morning and who sent him to the

emergency room. 

These two cases, both factually similar to this one, support the conclusion that

even if Werdlow could establish that Defendants were deliberately indifferent to his

serious medical needs for failing to send him immediately to a doctor when he

complained of chest pains and trouble breathing, he cannot show that it was clearly

established that Defendants’ delay was a violation of his Eighth Amendment right. See

Brosseau, 543 U.S. at 201 (cases that do not squarely govern the case at bar but that

are similar, taken together, show that the conduct at issue was not a clearly established

violation of constitutional rights). 

The Court briefly addresses two arguments made in response to Defendants’

motions. First, Werdlow likens his situation to that of the plaintiff in Westlake, where the

Sixth Circuit reversed the district court’s dismissal of plaintiff’s § 1983 claim based on a

violation of the Eighth Amendment. (See Doc. # 46, p. 6) That case, however, is

inapposite. In Westlake, jail officials were subjectively aware that plaintiff suffered from

an ulcer and required a special diet and medication, because he told them as much.

537 F.2d at 859. On multiple occasions, the plaintiff requested to receive treatment for

his condition. However, jail officials refused to take him to a doctor. Id. The plaintiff’s

condition worsened and he began to vomit blood. Id. Jail officials’ response was to give

him a mild antacid; they told him that he would have to wait at least two days to see a

doctor. Id. The plaintiff continued to suffer and request immediate medical attention; 
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these requests went unheeded. Id.

Importantly, in Westlake, the plaintiff received no medical attention. Here,

Werdlow admits that Defendants examined him at least five times. The Sixth Circuit

“distinguish[es] 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.” Id. at 860 n. 5. In cases where some medical attention is provided,

“federal courts are generally reluctant to second guess the medical judgements” of

those providing treatment. Id. After finding no abnormalities in Werdlow’s vital signs,

Defendants prescribed medication to address what they thought, after hearing

Werdlow’s vague complaints, may be the cause of his ailment. Unlike in Westlake,

Defendants had no basis to believe that Werdlow was suffering from anything more

serious than gas and/or heartburn.

Werdlow makes the novel argument, in his response to Defendants’ motions, that

Defendants’ descriptions of his complaints as “vague” demonstrate a “‘custom’ practiced

among nursing personnel whenever they examine patients, for purposes of not having

to administer attention to serious medical needs.” He also accuses all of the health

care staff at Saginaw Regional Correctional Facility of writing derogatory information

about him in his medical records, and claims that this derogatory information is

evidence of Defendants’ culpable state of mind. (Doc. #48, p. 4, ¶ 17)

The Court reads the information contained in Werdlow’s medical file differently

than he does. The excerpts selected by Werdlow are not derogatory, or belittling.

Instead, they appear merely to be notations recording what the nurses observed while

examining Werdlow. For example, Levine’s note that Werdlow “may ‘fall out’” reveals
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her good faith belief, in response to a comment made by Werdlow, that Werdlow might

malinger in an attempt to be taken to a hospital that evening. Likewise, Beeker’s note

that Werdlow was making limited effort to breathe deeply, while potentially incorrect,

simply reflects her mistaken belief that Werdlow was not as sick as he was later

determined to be. Defendants’ mistakes in this regard cannot be the basis for

establishing liability. These notes can also be read as evidencing that Defendants were

not aware of Werdlow’s serious medical condition.

The fact that Beeker used the term “vague” to describe Werdlow’s complaints in

her October 16 report, does not establish her subjective knowledge of a significant risk

of serious medical harm. Rather, it tends to show the opposite -- that Beeker was

subjectively unaware of the risk because Werdlow’s complaints were not clear.

Moreover, the use of the term “vague” on only one occasion, an October 16 Patient

Report, does not establish a widespread custom or policy on the part of MDOC, or the

nursing staff at MDOC, to abdicate the obligation to attend to the serious medical needs

of prisoners. 

Werdlow does not allege in his complaint that his injury was the result of a formal

MDOC custom or policy. Where there is no identification of a formal policy or custom,

approved by the appropriate decisionmaker, a plaintiff must present sufficient evidence

that the defendant implemented a custom that is “‘so permanent and well settled as to

constitute a custom or usage with the force of law” to establish liability as a result of a

custom that caused a constitutional deprivation. Doe v. Claiborne Cty. Tenn., 103 F.3d

495, 507 (6th Cir. 1996) (quoting Monell v. Dep’t of Social Servs., 436 U.S. 658, 691

(1978)). Werdlow fails to present sufficient evidence to create a genuine issue as to the
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existence of a permanent, widespread custom, implemented by Defendants, of using

“derogatory language” and labeling medical complaints as “vague” in prisoner medical

files.

C. Werdlow’s remaining claims lack merit

Werdlow challenges the authenticity of Exhibit B, attached to Beeker’s Motion for

Summary Judgment, in an attempt to argue that her affidavit was submitted in bad faith. 

The Exhibit purports to be portions of Werdlow’s medical file from the time period in

question. 

Werdlow cannot question the authenticity of a document and at the same time

rely on the document to support his theory of liability. He repeatedly points to the

documents in the Exhibit as proof of Defendants’ culpable state of mind. Further, the

Court does not discern any conflict between Defendants’ Exhibit B and Werdlow’s

Exhibit 2, and these documents do not call into question the good faith of Beeker’s

affidavit.

Lastly, the Court finds no evidence that defense counsel “unreasonably and

vexatiously” multiplied the proceedings. 28 U.S.C. § 1927 (1980).

IV. CONCLUSION

Defendants’ motions are GRANTED. Judgment is entered in favor of Defendants

Levine and Beeker.

IT IS ORDERED.

 /s/ Victoria A. Roberts 

Victoria A. Roberts

United States District Judge

Dated: December 8, 2010
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The undersigned certifies that a copy of this

document was served on the attorneys of record

and James Werdlow by electronic means or U.S.

Mail on December 8, 2010.

s/Linda Vertriest 

Deputy Clerk