1

On August 20, 2009, Plaintiff filed an amended complaint describing his claims in more

factual detail.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MICHAEL AXELSON,

Plaintiff,

v.

MICHIGAN DEPARTMENT OF

CORRECTIONS; CORRECTIONAL

MEDICAL SERVICES, INC.; IKRAM H.

KHAWAJA; MIAN Z. QAYYUM; GREG

C. SOTTEK; DALE KINNER; KHAWAJA

N. IKRAM,

Defendants.

 /

Case No. 09-12514

Honorable Patrick J. Duggan

OPINION AND ORDER

 At a session of said Court, held in the U.S.

District Courthouse, Eastern District 

of Michigan, on April 9, 2010.

PRESENT: THE HONORABLE PATRICK J. DUGGAN

U.S. DISTRICT COURT JUDGE

Michael Axelson (“Plaintiff”), a former state prisoner, filed this civil action

against defendants pursuant to 42 U.S.C.A. § 1983 on June 25, 2009. In his complaint,

Plaintiff alleges that defendants violated his constitutional right to be free from cruel and

unusual punishment.1

 On January 8, 2010, Defendant Khawaja N. Ikram (“Dr. Ikram”)
2

The defendant in the caption named “Ikram H. Khawaja” has been terminated from the

case because that defendant does not appear in Plaintiff’s second amended complaint. 

Presumably, “Ikram H. Khawaja” was intended to refer to Dr. Ikram, but mistakenly transposed

his name.

3

Because this motion pertains only to the conduct of Dr. Ikram, the Court does not

endeavor to summarize the events and treatment that took place at the correctional facility

between the date of injury and Plaintiff’s first interaction with Dr. Ikram on June 5, 2008.

2

filed a motion to dismiss or, in the alternative, for summary judgment.2 The motion has

been fully briefed and the Court dispensed with oral argument pursuant to Eastern District

of Michigan 7.1(f)(2) on April 6, 2010. For the reasons set forth below, Dr. Ikram’s

motion for summary judgment is granted.

I. Background

On May 13, 2008, Plaintiff fell out of a bunk bed at the Jackson Cooper

Correctional Facility, injuring his outstretched left hand. On May 21, 2008, an x-ray of

Plaintiff’s hand revealed that he had fractured the first metacarpal in his thumb. On June

5, 2008,3

 Plaintiff met with Dr. Ikram. Dr. Ikram is an orthopedist in Jackson, Michigan,

who contracts with Correctional Medical Services, Inc., regarding the treatment of

inmates detained by the Michigan Department of Corrections. Dr. Ikram informed

Plaintiff that he could either allow the fracture to heal naturally or undergo surgery to

place the thumb in a more normal position. Either way, Dr. Ikram also informed Plaintiff

that there was no guarantee that he would ever regain full range of motion in the thumb. 

Plaintiff indicated that he wanted surgery and Dr. Ikram recommended that it be done

within ten days. (Dr. Ikram’s Mot. Ex. B.)

Between June 12, 2008, and June 18, 2008, individuals from health services at the
4

None of the claims in Plaintiff’s amended complaint allege problems with the surgery or

follow up care. (See also Pl.’s Resp. to Dr. Ikram’s Mot.)

5

Section 1983 creates liability for individuals acting under color of state law who deprive

others of rights secured by the constitution.

3

correctional facility and Dr. Ikram’s office made arrangements for Plaintiff’s surgery to

take place on June 23, 2008. On that day Dr. Ikram performed a successful surgery.4

As indicated above, Plaintiff filed the present lawsuit on June 25, 2009, and an

amended complaint on August 20, 2009. As it pertains to the present motion, Plaintiff’s

amended complaint alleges, pursuant to 42 U.S.C.A. § 1983,5

 that Dr. Ikram violated his

Eighth Amendment constitutional rights. Specifically, Plaintiff asserts that Dr. Ikram

displayed deliberate indifference to a serious medical need by allowing an 18-day delay

between the initial consultation and surgery. Dr. Ikram now seeks dismissal from this

lawsuit.

II. Standard of Review

Dr. Ikram filed the motion presently pending before the court as both a motion to

dismiss and a motion for summary judgment. Because both parties submitted exhibits in

briefing the motion, the Court construes the motion as one for summary judgment. See

Fed. R. Civ. P. 12(d). Summary judgment is appropriate only when there is no genuine

issue as to any material fact and the moving party is entitled to judgment as a matter of

law. See Fed. R. Civ. P. 56(c). The central inquiry is “whether the evidence presents a

sufficient disagreement to require submission to a jury or whether it is so one-sided that

one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 251-52, 106 S. Ct. 2505, 2512 (1986). 
4

The movant has an initial burden of showing “the absence of a genuine issue of

material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553 (1986). 

Once the movant meets this burden, the non-movant must come forward with specific

facts showing that there is a genuine issue for trial. Matsushita Electric Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986). “When a motion

for summary judgment is properly made and supported, an opposing party may not rely

merely on allegations or denials in its own pleading . . . .” Fed. R. Civ. P. 56(e)(2).

II. Deliberate Indifference to a Serious Medical Need

To sustain an Eighth Amendment claim of cruel and unusual punishment based on

inadequate medical treatment, Plaintiff must demonstrate that Dr. Ikram acted with

deliberate indifference to his serious medical needs. See Blackmore v. Kalamazoo

County, 390 F.3d 890, 895 (6th Cir. 2004). As an initial matter, it is doubtful that

Plaintiff’s thumb fracture rises to the level of a sufficiently serious medical to demand

constitutional protection. See Atkins v. Yates, No. 1:07-cv-01027-GSA PC, 2009 WL

1639586, *3 (E.D. Cal. June 9, 2009) (“While Plaintiff’s injury and apparently permanent

pain and disability are unfortunate, the defendant-doctors’ maltreatment of his finger does

not reach the level of a constitutional violation.”); see also Thomas v. Nassau County

Corr. Ctr., 288 F. Supp. 2d 333, 338 (E.D.N.Y. 2003) (collecting cases). But, even

assuming the fracture was sufficiently serious, Plaintiff was not actually denied medical

treatment for his thumb; he merely claims that Dr. Ikram impermissibly delayed

treatment.

Where a claim is based on a delay, the plaintiff “must place verifying medical
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Plaintiff attached various medical records related to his injury to his response. Although

the records confirm that Dr. Ikram requested surgery for Plaintiff within 10 days of his

consultation with Plaintiff, (Dr. Ikram’s Mot. Ex. B), the exhibits fail to demonstrate that delay

beyond that point caused damage that would not otherwise have occurred from the underlying

injury. Plaintiff merely asserts, without support, that the delay allowed the fracture to continue

healing out of place and that “Dr. Ikram’s claim he was not indifferent is on its face, incredible.” 

(Pl.’s Resp.)

5

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

to succeed.” Napier v. Madison County, 238 F.3d 739, 742 (6th Cir. 2001). In support of

his motion, Dr. Ikram submitted an affidavit stating that the delay in Plaintiff’s surgery

had no impact on Plaintiff’s recovery. (Dr. Ikram’s Mot. Ex. A ¶ 10.) In response,

Plaintiff failed to submit evidence establishing the detrimental effect of the delay.6

Furthermore, other courts confronted with even longer delays in the treatment of broken

fingers have concluded that a plaintiff’s desire for faster treatment does not establish

deliberate indifference on behalf of medical professionals. See Maxey v. Astorga, No. 93-

16952, 29 F.3d 633 (tbl), 1994 WL 328212, * 2 (9th Cir. June 21, 1994); see also Brock

v. Crall, No. 00-5914, 8 Fed. Appx. 439, 440 (6th Cir. April 27, 2001) (“[A] difference of

opinion between a prisoner and a doctor over diagnosis or treatment also fails to state an

Eighth Amendment claim of deliberate indifference to a serious medical need.”). As

such, the Court grants Dr. Ikram’s motion for summary judgment on Plaintiff’s Eight

Amendment claim.

II. Gross Negligence

Dr. Ikram also seeks summary judgment to the extent Plaintiff’s amended complaint

asserts a claim for gross negligence. Having reviewed the amended complaint, the Court

remains uncertain that Plaintiff actually asserts a separate claim for “gross negligence.” It
6

appears that Plaintiff merely alleges, in support of his Eighth Amendment claims, that

defendants acted with gross negligence. In any event, Plaintiff failed to sufficiently

respond to Dr. Ikram’s arguments on this issue and even stated that the claim “is

irrelevant.” (Pl.’s Resp.) Therefore the Court concludes that Plaintiff has abandoned any

claim for gross negligence against Dr. Ikram and grants Dr. Ikram’s motion for summary

judgment in its entirety.

Accordingly,

IT IS ORDERED that Dr. Ikram’s Motion for Summary Judgment is GRANTED.

s/PATRICK J. DUGGAN

UNITED STATES DISTRICT JUDGE

Copies to:

Lawrence J. Schloss, Esq.

A. Peter Govorchin, Esq.

Brian J. Richtarcik, Esq.

Randall A. Juip, Esq.

Thomas E. Keenan, Esq.

Davidde A. Stella, Esq.

Edward C. Cutlip, Jr., Esq.