UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

 

ARTHUR LEE BRIGHT,
Plaintiff,	Case No. 1:98-CV-743

v.

KENNETH MCGINNIS, et al.,	Hon. RICHARD ALAN ENSLEN
Defendants.	ORDER

In accordance with the Opinion issued this date,

IT IS HEREBY ORDERED that Plaintiff's Objections to the Magistrate Judge's Report and Recommendation (Dkt. No 96) are GRANTED in part and DENIED in part.

IT IS HEREBY ORDERED that the Magistrate Judge's Report and Recommendation (Dkt. No. 94) is ADOPTED in part and REJECTED in part.

IT IS FURTHER ORDERED that Defendant's Motion for Summary Judgment (Dkt. No. 88) is DENIED.

IT IS FURTHER ORDERED that Plaintiff's Motion for Summary Judgment (Dkt. No. 87) is DENIED.

DATED in Kalamazoo, MI: August 28, 2001

RICHARD ALAN ENSLEN

United States District Judge

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

 

ARTHUR LEE BRIGHT,
Plaintiff,	Case No. 1:98‑CV‑743

v.

KENNETH MCGINNIS, et al.,	Hon. RICHARD ALAN ENSLEN
Defendants.	OPINION

This matter is before the Court on Plaintiff Arthur Bright's ("Plaintiff") Objections to the Report and Recommendation of the Magistrate Judge that Defendant Todd Hix's ("Defendant") Motion for Summary Judgment be granted and that Plaintiff's Motion for Summary Judgment be denied. Based on the Court's review of the Motions for Summary Judgment by both Plaintiff and Defendant, the Report and Recommendation ("Report"), and Plaintiff's Objections, the Court will grant in part and deny in part Plaintiff's Objections. The Report will be adopted in part and rejected in part. As a result, Defendant's Motion for Summary Judgment will be denied. Plaintiff's Motion for Summary Judgment on the issue of liability will also be denied.

I. Standard of Review

Under 28 U.S C. § 636(b), a magistrate judge's report that is case-dispositive shall be reviewed de novo by the district court, and the court may accept, reject, or modify the findings and recommendations of the magistrate judge. 28 U.S.C. § 636(b); L. Civ. R. 72.3(b).

Review of a motion for summary judgment requires the Court to determine if there is no genuine issue as to any material fact such that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). It is the function of the Court to decide "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 (1986). The question is "whether a fair-minded jury could return a verdict for the [non-moving party] on the evidence presented." Id. at 252. The facts are to be considered in a light most favorable to the non-moving party, and "… all justifiable inferences are to be drawn in his favor." Schaffer  v. A.O. Smith Harvestore Prod., Inc., 74 F.3d 722, 727 (6th Cir. 1996) (quoting Anderson, 477 U.S. at 255) (other citations omitted).

II. Factual and Procedural Background

 

Plaintiff filed this 42 U.S.C. § 1983 action in 1998 against various prison officials. Defendant is the only remaining Defendant. Plaintiff claims that his Eighth and Fourteenth Amendment rights were violated when Defendant, a prison nurse, failed to timely provide medical treatment to his tonsillitis. Defendant examined Plaintiff's throat in June 1998, discovering that the left tonsil was swollen and possibly needed antibiotic therapy. Defendant also knew that Plaintiff had chronic asthma and bronchitis. Plaintiff claims that Defendant would not schedule Plaintiff an appointment to see a doctor for antibiotics because Plaintiff would not sign a form acknowledging responsibility for a co-pay, even though Plaintiff asserted that he was not responsible for the co-pay under prison rules. Plaintiff claims his condition eventually worsened to the point that he vomited blood and required treatment at Hackley Hospital Emergency Room in September 1998. Defendant claims that Plaintiff refused treatment because he did not want to pay the co-pay, and even after Defendant informed him that he should see the doctor to determine if he needed antibiotics, Plaintiff continued to refuse treatment. The facts are laid out in the Report, and pertinent facts are reiterated herein.

III. Analysis of Defendant's Motion for Summary Judgment

 

Plaintiff must meet two requirements to succeed to his § 1983 deliberate indifference claim: he must show that the alleged deprivation of medical treatment posed a "substantial risk of serious harm," the objective component; and that the prison official acted with "deliberate indifference to inmate health or safety," the subjective component. Brown v. Bargery, 207 F.3d 863, 867 (6th Cir. 2000) (quoting Farmer v. Brennan, 511 US. 825, 834 (1994)). The Magistrate Judge recommended findings that Plaintiff met neither of these requirements, and Plaintiff objected to both findings. This Court finds that Plaintiff has shown sufficient evidence to proceed to a jury on both requirements.

A. The Objective Component of a § 1983 Action

The Sixth Circuit recently adopted the "detrimental effect" standard of a few other circuits and has held that to show the objective component of a  "sufficiently serious" medical deprivation, an inmate must have medical evidence that the delay in medical treatment caused a detrimental effect to the inmate. See Napier v. Madison County, Ky., 238 F.3d 739, 742 (6th Cir. 2001). In Napier, for example, the Sixth Circuit found that Napier did not suffer a detrimental effect when he was kept from one dialysis appointment while in custody because "[h]is treating physician testified that missing the treatment did not affect his mortality or morbidity." Id. at 743.

Plaintiff's evidence of a serious medical condition is sufficient under the Napier standard. "Detrimental effect" does not require the inmate to show that the medical treatment was not ultimately successful, or that the patient did not ultimately recover by means of another, later treatment. As can be inferred by the above statement of the Sixth Circuit, "detrimental effect" can result if an increase in morbidity is present, which is defined as "… [t]he rate of incidence of a disease." See American Heritage Dictionary of the English Language 1174 (3d ed. 1992). Therefore, "detrimental effect" can also arise when health risks to the inmate were increased during the period of delay in medical treatment to a constitutionally unacceptable degree. The fact that the Sixth Circuit found it significant that Napier's treating physician testified that missing one dialysis appointment did not affect his mortality or morbidity illustrates this point. Had Napier's estate been able to present evidence sufficient to send to a jury that Napier's mortality or morbidity was sufficiently affected by missing one treatment, that would have been enough to meet the objective component, even if Napier eventually recovered fully. The Sixth Circuit could not have intended Napier to stand for the proposition that eventual full recovery negates the legal conclusion that an inmate suffered a "sufficiently serious" medical deprivation if the delay in treatment subjected the inmate to a constitutionally unacceptable level of increased health risk.

For example, an inmate who is denied treatment for appendicitis until the appendix bursts has had his or her risk of death greatly increased by the delay. Even if the inmate subsequently undergoes a successful appendectomy and fully recovers,  he or she would still meet the objective component under the "detrimental effect" standard. The fact that the inmate did not in fact die or suffer long-term health consequences would not necessitate failing Napier's "detrimental effect" test.

Moreover, this interpretation is bolstered by the Eleventh Circuit opinion on which Napier relies for the "detrimental effect" standard. See Hill v. Dekalb Reg'l Youth Det. Ctr., 40 F.3d 1176 (11th Cir. 1994). In Hill v. Dekalb Reg'l Youth Det. Ctr., the Eleventh Circuit first said,

Cases stating a constitutional claim for immediate or emergency medical attention have concerned medical needs that are obvious even to a layperson because they involve life-threatening conditions or situations where it is apparent that delay would detrimentally exacerbate the medical problem. In contrast, delay or even denial of medical treatment for superficial, nonserious physical conditions does not constitute an Eighth Amendment violation.

 

Id. at 1187‑88. Then, the Eleventh Circuit goes on to refer to "detrimental effect" as an additional means of determining when an Eighth Amendment violation is present:

The "seriousness" of an inmate's medical needs also may be decided by reference to the effect of delay in treatment. Where the delay results in an inmate's suffering "a life‑long handicap or permanent loss, the medical need is considered serious." An inmate who complains that delay in medical treatment rose to a constitutional

violation must place verifying medical evidence in the record to establish the detrimental effect of delay in medical treatment to succeed. Further, we have held that "[t]he tolerable length of delay in providing medical attention depends on the nature of the medical need and the reason for the delay." Consequently, delay in

medical treatment must be interpreted in the context of the seriousness of the medical need, deciding whether the delay worsened the medical condition, and considering the reason for delay.

 

Id. at 1189‑90 (alteration in original) (citations omitted). It is not altogether clear that the Sixth Circuit intended to adopt the "detrimental effect" standard as the only way to show that treatment delay was constitutionally serious, since it seems to adopt the whole "approach" and not merely the single "detrimental effect" standard of the Eleventh Circuit. Nonetheless, even assuming that Napier stands for the proposition that "detrimental effect" is the only way to show a constitutionally serious treatment delay, Napier does not stand for the proposition that "detrimental effect" is only residual handicap or loss caused by treatment delay, as evidenced by its own reference to whether the delay increased mortality or morbidity.

The cases to which Hill v. Dekalb Reg'l Youth Det. Ctr. and Napier cite from the First and Third Circuits also demonstrate that "detrimental effect" includes other detrimental effects besides handicap or loss from the delay in treatment. It can be inferred from the First Circuit case that sufficient exacerbation of the injury or illness due to the delay can be "detrimental effect." Cf. Gaudreault v. Municipality of Salem, Mass., 923 F.2d 203, 208 (1st Cir. 1990) (arrestee who was treated on next day for bruises and abrasions received while being taken into custody was not subject to "detrimental effect" in treatment delay because there was "nothing in the record to suggest that Gaudreault's injuries were exacerbated in the slightest"). In addition, the Third Circuit, citing Estelle v. Gamble, 429 U.S. 97, 103 (1976), listed "unnecessary and wanton infliction of pain" as an example of possible detrimental effect other than handicap or loss that makes delay in medical

treatment serious for purposes of the objective component of a § 1983 action. See Monmouth County Correctional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987).¹

This Court finds that, considering in a light most favorable to Plaintiff the facts alleged and inferences that a reasonable jury could draw from those facts, Plaintiff has shown sufficient evidence of "detrimental effect." Even under Napier, as discussed above, "detrimental effect" in this case could include an exacerbation of the tonsillitis or of Plaintiff's preexisting conditions, especially where it caused a constitutionally unacceptable increase in Plaintiff's morbidity or health risk. Dr. Dick, Defendant's medical expert, testified there was no evidence of exacerbation of the condition as a result of delay. But a jury could reasonably infer exacerbation of the condition as it existed on June 19 from other evidence presented by Plaintiff, like the fact that Plaintiff alleges the condition worsened until Plaintiff began vomiting blood and needed to be taken to a local emergency room in September.² The jury could also infer bias in Dr. Dick's testimony and in her opinion of Plaintiff's condition based on her position as Defendant's expert. On the issue of whether Plaintiff's morbidity

_____________________________

 

¹ The Monmouth Court held that requiring pregnant inmates seeking non-therapeutic abortions to first satisfy a procedure creating burdensome delays and ignoring periods of gestation was enough to implicate a serious medical need of the inmates because of the detrimental effects of being forced to carry unwanted pregnancies to term, including, among many other effects, increase in risk of death, physical discomfort and psychological pain. Cf. id. at 349.

 

² Where an inmate alleged his illness had progressed from aches and a sore threat to the point that he was spitting up blood, at least one court has found that he had sufficiently alleged that his was a serious medical need such that delayed treatment was a constitutional violation. See Griffin v. DeRobertis, 557 F. Supp. 302, 306 (N.D. Ill. 1983).

A jury could also base an opinion that Plaintiff suffered a "detrimental effect" to his health because of increased health risk on medical facts entered into evidence through judicial notice, as well. See Fed. R. Evid. 201. Blood loss and its effect in increasing morbidity is noted in various sources. The Merck Manual of Diagnosis and Therapy 243 (Mark H. Beers, M.D., et al., eds., 1999) (noting that hematemesis (blood loss through vomiting) should be considered emergent, and "a major cause of morbidity and mortality in patients with active GI bleeding is aspiration of blood …"); Michael A. Graham, M.D., and Randy Hanzlick, M.D., Forensic Pathology in Criminal Cases 79-80 (1997) (noting that risk of death increases with amount of blood lost, that lesser degrees of blood loss can be fatal in people with underlying diseases, and that bleeding can also cause death when extensive amounts of blood are aspirated).

 

increased because of the non-treatment, a jury could infer such an increase from Dr. Dick's other testimony that untreated bacterial tonsillitis can lead to much more serious conditions and that Plaintiff's health risk from tonsillitis was increased even further because of his preexisting conditions. See Dkt. 87, Ex. A, p. 41, lines 15‑17; p 43, lines 5-16; p. 44, lines 10-17.

B. The Subjective Component of a § 1983 Action

 

The Magistrate Judge also found that Defendant did not have the requisite state of mind, and thus Plaintiff could not meet the subjective component of his claim. As was stated in the Report, Defendant must have been "actually aware of conditions that posed a substantial risk of serious harm to a prisoner, and … acted with conscious disregard for that risk." Farmer, 511 U.S. at 835. This Court finds that Plaintiff has sufficient evidence on conscious disregard and thus meets the subjective component.

First, Defendant knew Plaintiff needed treatment, knew Plaintiff presented with an urgent condition, and knew of possible risk of harm to Plaintiff based on his chronic conditions of asthma and bronchitis if he did not receive further treatment. Plaintiff has presented sufficient evidence of  Defendant's knowledge, so the remaining question is whether Plaintiff has sufficient evidence such that a jury could find that Defendant acted with conscious disregard for Plaintiff's health risk. The inquiry about conscious disregard centers on whether the prison official's response to a risk to the inmate was reasonable: "[P]rison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted . …" Farmer, 511 U.S. at 844-85, quoted in Thaddeus-X v. Blatter, 175 F.3d 378, 402 (6th Cir. 1999).

Alleged wrongful motivation on the part of prison officials has shown unreasonable response and thus conscious disregard. The Sixth Circuit found that an inmate-plaintiff sufficiently alleged that prison officials had the requisite state of mind when he alleged that he was placed in a cell with sickening conditions with mentally ill inmates in order to force him to stop helping other inmates

file lawsuits against prison officials. See Thaddeus‑X, 175 F.3d at 402‑03 (analyzing plaintiff's Eighth Amendment claim based on the conditions of his confinement in addition to retaliation claims that he raised based on the same factual allegations). The Sixth Circuit has also found conscious disregard where a prison official referred inmate complaints of not receiving medication to the very head nurse he knew was wrongly altering and destroying prescriptions. See Hill v. Marshall, 962 F.2d 1209, 1213 (6th Cir. 1992).

Further, conscious disregard can be merely ignoring excessive risk of future health problems for an inmate without alleging wrongful motivation. The "deliberate indifference" standard is satisfied if "the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 835, 837, quoted in Brown, 207 F.3d at 867. In Brown, the Sixth Circuit found an inmate sufficiently alleged deliberate indifference where he alleged that officials knew his bunk was improperly installed, causing risk of contact to exposed bolts and sliding off the bed on to the concrete floor. See Brown, 207 F.3d at 867‑68 (Eighth Amendment conditions of confinement claim); see also Helling v. McKinney, 509 U.S. 25, 28 (1993) (finding sufficient allegation of deliberate indifference in Eighth Amendment conditions of confinement case where officials forced inmate to share cell with another innate who smoked five packs of cigarettes a day).

On the other hand, where there has been no alleged wrongful motivation at all on the part of prison officials, and at worst negligence in diagnosing or treating medical problems, the Sixth Circuit has not found conscious disregard. See Williams v. Mehra, 186 F.3d 685, 692 (6th Cir. 1999) (en banc) (psychiatrists knew inmate was suicidal but continued to prescribe medication in pill form, instead of liquid, and inmate hoarded the pills to commit suicide); Durham v. Nu'man, 97 F.3d 862, 869 (6th Cir. 1996) (inmate's broken arm went undetected, despite a medical exam of the arm, and thus untreated for a period of time); Sanderfer v. Nichols, 62 F.3d 151, 154 (6^th Cir. 1995) (physician failed to detect a number of warning signs of a heart condition and inmate later died);

Howard v. Calhoun Cty., 148 F.Supp.2d 883, 889-90 (W.D. Mich. 2001) (deputy who called for medical help but did not begin CPR and would not let other inmates try when inmate collapsed was not deliberately indifferent). The prison offcials' actions in these cases were arguably reasonable responses to the risks of which the officials were cognizant, even if the responses may have been negligent in some cases.

Plaintiff's allegations fall somewhere in between the egregious wrongful motivation discussed above and mere negligence committed by a prison official when responding to an inmate health risk. According to Plaintiff's version of the facts, Defendant refused to treat Plaintiff not because Defendant did not recognize Plaintiff's medical issues but because Defendant insisted on Plaintiff's signature on the co-pay form before treatment in violation of prison rules. In a case more analogous to this one, the Seventh Circuit held that where prison doctors refused to treat an inmate for HIV until he had an HIV test, they did not exhibit deliberate indifference toward the inmate's care. See Walker v. Peters, 233 F.3d 494, 500‑501 (7th Cir. 2000). The Court there held that the inmate impliedly refused treatment when he would not consent to the test that would lead to his treatment. Id. Continuing, the Walker Court said that requiring a confirmatory HIV test before administering dangerous drugs used to treat HIV was clearly within the realm of reasonable conduct for the prison and not deliberate indifference to the inmate's well-being. Id. at 500.

Here, unlike Walker, Defendant cannot argue that there was legitimate medical reason for refusing treatment to Plaintiff, as it appears Defendant broke a prison regulation if he refused treatment because Plaintiff would not pay the co‑pay. Instead, viewing the allegation in Plaintiff's favor, Defendant attempted to force Plaintiff to acquiesce to Defendant on the co-pay dispute at the time of treatment. Defendant would not make a doctor's appointment for Plaintiff unless he signed the co‑pay form acknowledging responsibility for the co-pay. While it is true that Plaintiff could have signed the form for the time being and brought a grievance later, a jury could find that Defendant's purpose was illegitimate and unreasonable to the point of constituting conscious disregard when that purpose led Defendant to refuse to treat Plaintiff. A jury could also reasonably.

 

find that Defendant, as a nurse, was in a better position to know that delay in treatment would cause a substantial risk of serious harm and thus Defendant's response to the co-pay dispute was unreasonable.

Therefore, Plaintiff's Objections to the portion of the Report granting Defendant summary judgment will be granted. Defendant's Motion for Summary Judgment will be denied.

IV. Analysis of Plaintiff's Motion for Summary Judgment

 

A. The Objective Component of a § 1983 Action

 

Examining the facts in a light most favorable to Defendant, a reasonable jury could find that the delay to treating Plaintiff's illness did not cause him a "detrimental effect" because the jury could find that it did not increase his morbidity or increased it only a negligible amount. Further, a jury could find that Defendant's illness was not exacerbated by the delay in treatment because a jury could find credible the opinion of Defendant's medical expert that there was no exacerbation. Therefore, Plaintiff is not entitled to summary judgment on this point.

B. The Subjective Component of a § 1983 Action

 

Again, examining the facts in a light most favorable to Defendant, there is a genuine issue of material fact for a jury on the issue of whether Defendant acted in conscious disregard when he did not refer Plaintiff for an appointment with the prison doctor for antibiotic therapy. A jury could believe Defendant that Plaintiff refused treatment because he did not want to pay the co‑pay, and that Defendant informed Plaintiff that he required antibiotic therapy and a doctor's appointment, but Plaintiff continued to refuse treatment. A jury could find that advising Plaintiff to gargle with saltwater and kite if symptoms persisted or worsened was a reasonable response after the Plaintiff refused treatment. A jury could also find that having heard nothing further from Plaintiff, as Defendant alleges, it was reasonable to take no further action. Given these findings, a jury could find that Defendant did not act with conscious disregard and find no liability.

Therefore, Plaintiff's Objections to the portion of the Report denying Plaintiff summary judgment will be denied, and Plaintiff's Motion for Summary Judgment will be denied.

DATED in Kalamazoo, MI: August 28, 2001

 

RICHARD ALAN ENSLEN

United States District Judge