UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

KAMAL BURTON,

Plaintiff,

v.

KAKANI, a physician assistant, and ANIL S.

PRASAD, M.D.,

Defendant.

_____________________________________/

Case No. 09-10893

HON. MARIANNE O. BATTANI

OPINION AND ORDER ADOPTING THE MAGISTRATE JUDGE’S REPORT AND

RECOMMENDATION AND GRANTING IN PART AND DENYING IN PART

DEFENDANTS’ MOTION TO DISMISS

I. INTRODUCTION

Defendants filed a motion to dismiss Plaintiff Kamal Burton’s complaint, (doc.

13), and the Magistrate Judge issued a Report and Recommendation (“R&R”) that this

Court dismiss Plaintiff’s conspiracy claim, but allow Plaintiff’s deliberate indifference

claim and state-law tort claim to survive, (doc. 14). Now before the Court are the

parties’ objections to the R&R. (Docs. 15-16). Defendants object to the R&R’s

recommendation that this Court allow Plaintiff’s deliberate indifference claim and statelaw tort claim to proceed. Plaintiff objects to the R&R’s recommendation that his

conspiracy claim be dismissed and to a statement in the R&R concerning his state-law

tort claim. For the reasons discussed below, the R&R is adopted and Defendants’

Motion to Dismiss is granted in part and denied in part.

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II. STATEMENT OF FACTS

As the parties have not objected to the R&R’s recitation of the facts, the Court

adopts that portion of the R&R.

III. STANDARD OF REVIEW

A district court must conduct a de novo review of the parts of a Magistrate

Judge’s R&R to which a party objects. 28 U.S.C. § 636(b)(1). The district court “may

accept, reject, or modify, in whole or in part, the findings or recommendations made by

the magistrate.” Id. The requirement of de novo review “is a statutory recognition that

Article III of the United States Constitution mandates that the judicial power of the

United States be vested in judges with life tenure.” United States v. Shami, 754 F.2d

670, 672 (6th Cir.1985). Accordingly, Congress enacted 28 U.S.C. § 636(b)(1) to

“insure[ ] that the district judge would be the final arbiter” of a matter referred to a

magistrate judge. Flournoy v. Marshall, 842 F.2d 875, 878 (6th Cir.1987).

Federal Rule of Civil Procedure 12(b)(6) permits a district court to dismiss a

complaint that “fail[s] to state a claim upon which relief may be granted.” “This rule

allows a defendant to test whether, as a matter of law, the plaintiff is entitled to legal

relief even if every allegation in the complaint is true.” Tidik v. Ritsema, 938 F.Supp.

416, 421 (E.D. Mich. 1996). Thus, when faced with a Rule 12(b)(6) motion to dismiss, a

district court “must construe the complaint in the light most favorable to the plaintiff,

[and] accept all factual allegations as true.” Allard v. Weitzman, 991 F.2d 1236, 1240

(6th Cir. 1993).

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IV. ANALYSIS

A. Exhaustion

Defendants object that Plaintiff’s deliberate indifference claim should be

dismissed because he failed to exhaust his administrative remedies regarding that

claim. In particular, they contend that although Plaintiff filed a grievance relating to his

medical care, he did not name Defendants in the grievance and, therefore, he did not

properly exhaust his claim. 

The exhaustion provision of the Prison Litigation Reform Act of 1995 (“PLRA”),

states,

No action shall be brought with respect to prison conditions under section

1983 of this title, or any other Federal law, by a prisoner confined in any

jail, prison, or other correctional facility until such administrative remedies

as are available are exhausted.

42 U.S.C. § 1997e(a). Congress imposed this exhaustion requirement both to give

corrections officials the opportunity to address complaints internally and to reduce the

quantity and improve the quality of prisoner suits in federal court. Woodford v. Ngo, 548

U.S. 81, 93-95 (2006). The U.S. Supreme Court has held that the administrative

remedies must be properly exhausted, which “demands compliance with an agency’s

deadlines and other critical procedural rules.” Id. at 90, 93. In Jones v. Bock, 549 U.S.

199, 218 (2007), the Supreme Court went on to state, “The level of detail necessary in a

grievance to comply with the grievance procedures will vary from system to system and

claim to claim, but it is the prison’s requirements, and not the PLRA, that define the

boundaries of proper exhaustion.” Accordingly, the Supreme Court held that grievances

were “not per se inadequate simply because an individual later sued was not named in

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the grievances” where the applicable policy from the Michigan Department of

Corrections (“MDOC”) did not require grievances to specifically name the individuals

against whom the grievance was being filed. Bock, 549 U.S. at 219.

The MDOC policy addressed in Bock only required prisoners to be as specific as

possible in their grievances. Id. at 218. That policy has been amended, however, such

that it now states, “Information provided is to be limited to the facts involving the issue

being grieved (i.e., who, what, when, where, why, how). Dates, times, places, and

names of all those involved in the issue being grieved are to be included.” MDOC

Policy Directive 03.02.130(R) (effective July 9, 2007) (emphasis added) (attached to

doc. 13, Defendants’ Motion to Dismiss).

The Magistrate Judge found that Burton exhausted his administrative remedies

because although his grievance did not provide Defendants’ names, it “gave

Defendants fair notice of the claims against them, by supplying sufficient information for

the prison to identify Defendants as the persons being grieved.” (Doc. 14 at 5). 

Defendants object that Burton’s grievance was inadequate because MDOC Policy

Directive 03.02.130(R) specifically required him to provide the name of each individual

against whom the grievance was filed. Although Burton did not provide the Defendants’

names in his grievance, the Court finds that he did substantially comply with this

requirement by providing sufficient information for the prison to easily determine that

Defendants were the persons being grieved.

Burton’s grievance indicated that he had “kited Health Care regarding a serious

medical need” on April 22, June 10, and June 25, 2008. In addition, his grievance

indicated that “the P.A.” and “the Doctor” were deliberately indifferent to his medical

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need. As the Magistrate Judge noted, Defendants have not alleged that any PA or

doctor, other than Defendants, were assigned to the prison at the time. Furthermore,

the step one and step two responses to Burton’s grievance show that prison officials

identified the PA and the doctor.

Furthermore, to the extent that MDOC Policy Directive 03.02.130(R) can be read

to bar grievances that provide sufficient information to allow easy identification of the

individuals being grieved but fail to provide the individuals’ names, the Court finds that

such a requirement is not “critical” and, therefore, compliance with that requirement is

not necessary for exhaustion under the PLRA. See Woodford, 548 U.S. at 90

(indicating that proper exhaustion demands compliance with an agency’s “critical

procedural rules”). Thus, because Burton’s grievance provided sufficient information

based upon which the prison could easily identify the individuals being grieved, it served

to exhaust Burton’s claims against those individuals despite the fact that the individuals’

names were not included in the grievance. See Perry v. Green, No. 08-12740, 2009

WL 814447 at *15 (E.D. Mich. Mar. 26, 2009). Accordingly, Defendants’ argument that

Plaintiff failed to properly exhaust his administrative remedies fails.

B. Deliberate Indifference Claim

In order to state a claim under 42 U.S.C. § 1983, a plaintiff must (1) allege the

violation of a constitutional right, and (2) show that the violation was committed by a

person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). Under

the Eighth Amendment, prison officials may not be deliberately indifferent to the serious

medical needs of prisoners. Estelle v. Gamble, 429 U.S. 97, 103 (1976). 

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“Deliberate indifference” has both an objective and a subjective component. 

Perez v. Oakland County, 466 F.3d 416, 423 (6th Cir. 2006). In order to establish the

subjective component, the Plaintiff must present evidence that the prison official was

subjectively aware of, and disregarded, the risk of harm to the prisoner. Id. at 424. 

“Whether a prison official had the requisite knowledge of a substantial risk is a question

of fact subject to demonstration 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.” Farmer v. Brennan, 511

U.S. 825, 842 (1994). But, a prison official who was not aware of a substantial risk of

harm may not be held liable under the Eighth Amendment, even if the risk was obvious

and a reasonable official would have noticed it. Id. at 841-42. Likewise, “a difference of

opinion between a prisoner and a physician regarding treatment of a condition does not

support an Eighth Amendment claim.” Hill v. Haviland, 68 Fed. Appx. 603, 604 (6th Cir.

2003) (citing Estelle, 429 U.S. at 107).

The Magistrate Judge noted that Burton kited Health Care on May 24, 2008

regarding the severe pain in his testicle area. He was then seen by both Defendants on

June 3, 2008. His complaint states that a lay person would easily know that a swollen

testicle is a severe problem requiring treatment, but that it was not until July 3, 2008,

that Defendants first gave him aspirin for his pain. The Magistrate concluded that these

allegations constituted a claim that Defendants were deliberately indifferent to his pain.

Defendants first object that Burton’s complaint suggests that his pain was always

treated because aspirin was given at all times. The Court finds, however, that Burton’s

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complaint alleges that he was not given any aspirin until July 3, 2008, which was over a

month after he first complained of pain. As such, this objection fails.

Defendants also object Burton’s allegations do not show that his May 24, 2008,

medical kite’s complaints of testicle pain were communicated to Defendants when they

saw him in response to the medical kite on June 3, 2008. This argument fails because

it may be safely inferred from the complaint that Defendants were advised of Burton’s

May 24 complaint of testicle pain when they saw him in response to that complaint on

June 3. See Allard, 991 F.2d at 1240.

Finally, Defendants object that they were not deliberately indifferent to Burton’s

condition because their care of Burton included numerous examinations, diagnoses,

pain medication, lab work, a testicular ultrasound, and instructions on self-examination

and monitoring. As such, Defendants contend that Burton’s allegations consist of

nothing more than a difference of medical opinion between Burton and Defendants,

which is insufficient to make out a constitutional claim. 

According to the complaint, between May 24 and July 3, 2008, Defendants saw

Burton at least two times, obtained approval for an off-site consultation, and had

laboratory tests and a testicular ultrasound performed. These allegations indicate that

Defendants were not deliberately indifferent to the risk of harm that Burton was subject

to as a result of his swollen testicle. See Hill, 68 Fed. Appx. at 604. Nevertheless,

Burton’s allegations do support a claim that Defendants were deliberately indifferent to

his pain during this period because they did not provide him with any medication to

relieve his pain. See McElligott v. Foley, 182 F.3d 1248, 1257 (11th Cir. 1999) (stating

that a failure, or delay, in treating pain is a constitutionally cognizable injury under the

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Eighth Amendment). Accordingly, construing the complaint in Burton’s favor, he has

adequately alleged that Defendants were deliberately indifferent to his medical needs

when they failed to treat his pain from May 24 until July 3, 2008.

C. Conspiracy

The Magistrate Judge determined that Burton’s conspiracy claim should be

dismissed because it consisted of a conclusory allegation unsupported by specific facts. 

Burton objects to this determination solely “to preserve this claim for further review in

this Court, as well as for appellate review; upon seeking appointed counsel and in light

of a trial taking place.” As Burton has not provided any basis for concluding that the

Magistrate Judge erred, the Court adopts the Magistrate Judge’s determination on this

issue and dismisses this claim.

D. State Law Tort Claims

The Magistrate Judge concluded that Burton raised vaguely identified state law

tort claims in Count 5 of his complaint. Defendants object that this claim should be

considered an additional claim of deliberate indifference. In Count 5, Burton claims that

Defendants “failed to take reasonable steps to abate” his pain and that their conduct

was criminally reckless. This claim does not constitute an additional deliberate

indifference claim because conduct that is unreasonable or reckless does not rise to the

level of deliberate indifference. Such conduct may, however, constitute a claim under

state law. See, e.g., Gonzalez v. St. John Hosp. & Med. Ctr., 275 Mich. App. 290, 294

(2007). Accordingly, the Court will not dismiss this claim.

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Burton objects to the Magistrate’s statement that, “[i]f Defendants move

successfully for summary judgment perhaps this disposition of the state law claims will

be appropriate.” This statement is not the basis for any finding or recommendation by

the Magistrate Judge. Therefore, this statement has no affect on the Court’s decision to

grant in part and deny in part Defendants’ Motion to Dismiss. As such, Burton’s

objection is immaterial.

V. CONCLUSION

Accordingly, the Court ADOPTS the Magistrate Judge’s R&R. Defendants’

Motion to Dismiss is GRANTED IN PART AND DENIED IN PART, and Burton’s

conspiracy claim under 42 U.S.C. § 1983 (Count 4) is DISMISSED.

IT IS SO ORDERED.

s/Marianne O. Battani 

MARIANNE O. BATTANI

UNITED STATES DISTRICT JUDGE

DATED: September 23, 2009

CERTIFICATE OF SERVICE

Copies of this Order were served upon Plaintiff and counsel of record on this

date by ordinary mail and electronic filing.

 s/Bernadette M. Thebolt

 DEPUTY CLERK

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