Payne #650743 v. Alviar et al

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SCOTT GORDON PAYNE,
Case No. 1:23-cv-524
Plaintiff,
Hon. Hala Y. Jarbou
v.
SYDNIE ALVIAR, KATHY SHERWOOD,
and ARIELLE JONES,
Defendants.
/
REPORT AND RECOMMENDATION
This is a pro se civil rights action brought pursuant to 42 U.S.C. § 1983 by Scott
Gordon Payne, a prisoner in the custody of the Michigan Department of Corrections (MDOC).
This lawsuit involves plaintiff’s medical treatment at the Muskegon Correctional Facility (MCF).
Plaintiff sued Nurse Practitioner (NP) Sydnie Alviar, Registered Nurse (RN) Kathy Sherwood and
RN Arielle Jones. The Court dismissed RN Jones. This matter is now before the Court on motions
for summary judgment filed by defendants NP Alviar (EXCF No. 105) and RN Sherwood (ECF
No. 106).
I. 	Plaintiff’s allegations
Payne 	is 	an 	inmate 	at 	Muskegon 	Correctional 	Facility 	(MCF). 	His
allegations stem from complications relating to two surgeries he underwent at an
off-site hospital. First, Payne’s gallbladder was removed. He then underwent
surgery to remove gallstones from his bile duct, but that operation was not entirely
successful, and numerous gallstones remained in his system. (Compl., ECF No. 1,
PageID.3.) Since not all the gallstones were removed during surgery, Payne would
have to “pass” the remaining ones on his own. (Id.) Payne was released from the
hospital on January 24, 2023, with instructions from his surgeon that he was “okay
for 	discharge 	with 	Norco 	([a 	pain 	killer] 	consisting 	of 	Hydrocodone 	and
acetaminophen) for pain control as needed.” (Id.) According to Payne, he was told
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by his doctors that he would pass the gallstones naturally, but there would be
associated pain.
On January 24, 2023, the morning of his return to prison, Defendant Alviar
reviewed Payne’s hospital discharge documents and decided to not order pain
medication for him. (Id.) That same day, Payne notified the on-duty corrections
officer in his unit that he was experiencing “serious” pain. (Id.) The officer notified
Health Services of his condition by phone, but the responding nurse refused to
speak with Payne. (Id.) The next day, Payne was still in serious discomfort, so he
again asked to speak with Health Services. After three calls by the officer, Payne
was able to reach Defendant Jones by phone. (Id., PageID.4.) Payne told Jones that
he was covered in sweat and “experiencing off the charts levels of pain” from
passing gallstones. (Id.) Jones responded that Payne was not prescribed any pain
medication and that he should buy Tylenol from the prison commissary. (Id.)
Five days later on January 30, 2023, Defendant Sherwood conducted an in-
person assessment of Payne in response to a kite he sent two days earlier
complaining of pain related to passing gallstones. (Id., PageID.5.) Payne told
Sherwood that he was passing gallstones and that his pain was currently fluctuating
between a five and an eight on a ten-point scale, and up to ten the night before. (Id.)
He showed her a gash on his head that he sustained when he fell into a latch on his
wall locker while doubled over in pain. (Id.) Sherwood allegedly responded that the
gash had nothing to do with the purpose of his kite, which only mentioned the
gallstones, and further questioned whether the levels of pain he claimed to be
experiencing were plausible. (Id.) Payne asked Sherwood to contact the hospital
that conducted his surgery to confirm that he was prescribed a pain reliever upon
discharge. Sherwood told him that there was no order for pain medication, only a
recommendation, and that the prison was not ordering any pain medication for him.
(Id., PageID.6.)
Payne v. Alviar, No. 1:23-cv-524, 2024 WL 1298044 at *1-2 (W.D. Mich. March 27, 2024).
Finally, plaintiff alleged that NP Alviar saw him on February 7, 2023, “long after his 9 days of
passing gallstones.” Compl. at PageID.7. Alviar instructed plaintiff to buy Tylenol from the prison
store. Id.
III. 	Motions for summary judgment
A. 	Standard of review
“The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
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Fed. R. Civ. P. 56(a). Rule 56 further provides that a party asserting that a fact cannot be or is
genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions,
documents, 	electronically 	stored 	information, 	affidavits 	or 	declarations,
stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to
support the fact.
Fed. R. Civ. P. 56(c)(1).
In Copeland v. Machulis, 57 F.3d 476 (6th Cir. 1995), the court set forth the parties’
burden of proof in a motion for summary judgment:
The moving party bears the initial burden of establishing an absence of evidence to
support the nonmoving party’s case. Once the moving party has met its burden of
production, the nonmoving party cannot rest on its pleadings, but must present
significant probative evidence in support of the complaint to defeat the motion for
summary judgment. The mere existence of a scintilla of evidence to support
plaintiff's position will be insufficient; there must be evidence on which the jury
could reasonably find for the plaintiff.
Copeland, 57 F.3d at 478-79 (citations omitted).
“In deciding a motion for summary judgment, the court views the factual evidence
and draws all reasonable inferences in favor of the nonmoving party.” McLean v. 988011 Ontario
Ltd., 224 F.3d 797, 800 (6th Cir. 2000). Here, he relies on the documents filed in the court record.
These include his verified complaint1 , 	which has the same force and effect as an affidavit for
purposes of responding to a motion for summary judgment. 	See Lavado v. Keohane, 992 F.2d
601, 605 (6th Cir. 1993).
1 See Affidavit/Declaration (PageID.8-9).
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B. 	Eighth Amendment claim
Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, which “provides a civil cause of
action for individuals who are deprived of any rights, privileges, or immunities secured by the
Constitution or federal laws by those acting under color of state law.” 	Smith v. City of Salem,
Ohio, 378 F.3d 566, 576 (6th Cir. 2004). 	To state a § 1983 claim, a plaintiff must allege two
elements: (1) a deprivation of rights secured by the Constitution and laws of the United States, and
(2) that the defendant deprived him of this federal right under color of law. Jones v. Duncan, 840
F.2d 359, 360-61 (6th Cir. 1988); 42 U.S.C. § 1983.
Here, plaintiff contends that defendants were deliberately indifferent to his serious
medical in needs in violation of the Eighth Amendment. It is well established that an inmate has a
cause of action under § l983 against prison officials for “deliberate indifference” to his serious
medical needs, since the same constitutes cruel and unusual punishment proscribed by the Eighth
Amendment. Estelle v. Gamble, 429 U.S. 97 (l976). A viable Eighth Amendment claim consists
of an objective and a subjective component. Farmer v. Brennan, 511 U.S. 825, 834 (1994). A
court considering such a claim must ask both if the alleged wrongdoing was objectively harmful
enough to establish a constitutional violation and if the officials acted with a sufficiently culpable
state of mind. Hudson v. McMillian, 503 U.S. 1, 8 (1992).
The objective component requires the infliction of serious pain or failure to treat a
serious medical condition. Id. at 8-9. “Because society does not expect that prisoners will have
unqualified access to health care, deliberate indifference to medical needs amounts to an Eighth
Amendment violation only if those needs are ‘serious.’” Id. at 9. “[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 that sound
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in state tort law.” Graham ex rel. Estate of Graham v. County of Washtenaw, 358 F.3d 377, 385
(6th Cir. 2004) (internal quotation marks omitted). “[T]his care qualifies as ‘cruel and unusual’
only if it is ‘so grossly incompetent’ or ‘so grossly inadequate’ as to ‘shock the conscience’ or ‘be
intolerable to fundamental fairness.’” Phillips v. Tangilag, 14 F.4th 524, 535 (6th Cir. 2021).
The 	subjective 	component 	requires 	that 	the 	defendant 	act 	with 	deliberate
indifference to an inmate’s health or safety. See Wilson v. Seiter, 501 U.S. 294, 302-03 (1991).
To establish the subjective component, the plaintiff must show that “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 837. Mere negligence in diagnosing or treating a
medical condition does not constitute an Eighth Amendment violation. Id. at 835. “It is obduracy
and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited
by the Cruel and Unusual Punishments Clause.” 	Whitley v. Albers, 475 U.S. 312, 319 (1986).
Stated another way, the plaintiff must prove that each defendant acted with a “sufficiently culpable
state of mind, equivalent to criminal recklessness.” Santiago v. Ringle, 734 F.3d 585, 591 (6th Cir.
2013) (citing Farmer, 511 U.S. at 834, 839-40) (internal quotation marks omitted).
C. 	RN Sherwood
RN Sherwood seeks summary judgment under the affirmative defense of qualified
immunity. Under this defense, “government 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.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “A clearly established right is one that is
sufficiently clear that every reasonable official would have understood that what he is doing
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violates that right.” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (internal quotation marks omitted).
The doctrine of qualified immunity “gives government officials breathing room to make
reasonable but mistaken judgments, and protects all but the plainly incompetent or those who
knowingly violate the law.” Carroll v. Carman, 574 U.S. 13, 17 (2014).
The qualified-immunity inquiry involves two questions: whether the defendant
violated a constitutional right and whether that right was clearly established. See Pearson v.
Callahan, 555 U.S. 223, 232 (2009). “These questions may be answered in any order; if either one
is answered in the negative, then qualified immunity protects the official from civil damages.”
Brown v. Chapman, 814 F.3d 447, 457 (6th Cir. 2016). “On summary judgment, the court must
analyze these questions after construing the facts in the light most favorable to the party asserting
the injury and drawing all reasonable inferences in that party's favor.” 	Id. “When a defendant
raises a defense of qualified immunity, the plaintiff bears the burden of demonstrating that the
defendant is not entitled to qualified immunity.” Livermore ex rel. Rohm v. Lubelan, 476 F.3d 397,
403 (6th Cir. 2007).
RN Sherwood contends that plaintiff did not establish a constitutional violation.
Plaintiff’s claim against RN Sherwood is based on a single encounter on January 30, 2023. See
Payne Dep. (ECF No. 107-4, PageID.803-804); Payne, 2024 WL 1298044 at *1-2; Sherwood
Decl. (ECF No. 107-3, PageID.785). As previously discussed, plaintiff’s discharge instructions
from the hospital did not include a prescription for Norco. See Payne v. Alviar, No. 1:23-cv-524,
2024 WL 3927265 at *6 (July 19, 2024), R&R adopted, 2024 WL 3912550 (W.D. Mich. Aug. 23,
2024). At that time, Sherwood examined plaintiff, noted a small wound with a scab on his head,
noted that plaintiff was on a prescription for pain medication (Celebrex), and advised plaintiff that
the medical providers were not ordering any different pain medications. 	Sherwood Decl. at
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PageID.785. Based on her observations, Sherwood determined that plaintiff did not want to take
Celebrex or Tylenol, with his focus on receiving Norco. Id. at PageID.785-786. 	Sherwood could
not give plaintiff Norco because “there was no active prescription for Norco” on plaintiff’s
authorized treatment. 	Id. at PageID.785. 	Sherwood could not prescribe this new medication
because it was outside of the scope of her practice as an R.N. Id. Sherwood could offer plaintiff
Tylenol because she had a standing order for that medication, but plaintiff left before she could
provide him with it. Id. at PageID.785-786. Sherwood would not have offered plaintiff Ibuprofen
because it can have a harmful interaction with his prescription for Celebrex. Id. at PageID.786.
Finally, when Sherwood saw plaintiff on January 30, 2023, he was scheduled to see his medical
provider, NP Alviar, on February 7, 2023. Id.
Assuming that plaintiff requested Norco on January 30, 2023, RN Sherwood had
no authority to dispense this narcotic medication to him at that time. 	At most, plaintiff’s claim
amounts to an allegation that Sherwood did not accurately assess his level of pain. Such a claim
would amount to negligence rather than a federal constitutional violation. See Farmer, 511 U.S.
at 835. “[A] difference of opinion between a prisoner and the prison medical staff about medical
treatment does not constitute deliberate indifference”. 	Woodberry v. Simmons, 146 Fed. Appx.
976, 977 (10th Cir.2005). See Owens v. Hutchinson, 79 Fed. Appx. 159, 161 (6th Cir. 2003) (“[a]
patient’s disagreement with his physicians over the proper medical treatment alleges no more than
a medical malpractice claim, which is a tort actionable in state court, but is not cognizable as a
federal constitutional claim”). 	Accordingly, RN Sherwood’s motion for summary judgment
should be granted.
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D. 	NP Alviar
When plaintiff returned to the correctional facility on January 24, 2023, he received
discharge documentation which stated in part, “Okay for discharge with Norco for pain control as
needed.” 	Medical Records (ECF No. 105-1, PageID.706). As previously discussed, plaintiff’s
discharge instructions from the hospital did not include a prescription for Norco. After a chart
review, NP Alviar ordered, “Low fat diet, 10lb weightlifting restriction. Follow up with MP in 1-
2 weeks.” 	Medical Records at PageID.709-711. While plaintiff contends that his discharge
instructions included a prescription for Norco, former defendant RN Jones told him that there was
no new medication. As reflected in the medical record of plaintiff’s phone conversation with RN
Jones:
Inmate states that he was prescribed Norco when being discharged from McLaren.
Inmate 	was 	informed 	that 	the 	MP 	[medical 	provider] 	reviewed 	discharge
paperwork and no medication [sic] were ordered. Inmate states he was told by the
MP at McLaren and showed discharge paperwork that states he was prescribed pain
medication. This author then pulled the discharge paperwork and in the MP
provider notes it states “okay with patient being discharged on Norco”. This author
then told inmate that the MP would be consulted again regarding medications. NP
Alviar was consulted and no new orders were given and inmate was encouraged to
trial Tylenol and Motrin for pain management. Inmate then hung up the phone.
See Administrative Note (ECF No. 1-5, PageID.29)
Payne, 2024 WL 3927265 at *1-2.
On February 7, 2023, NP Alviar saw plaintiff for the scheduled follow-up visit and
made the following evaluation:
Patient had returned from hospital admission in the middle of the night on
1/24/23. He was seen by nursing and sent to his housing unit. He was told he would
be seen the next day. Nursing had seen him the next day and had asked me about
his pain medication. He appeared to be in no acute distress, and it was
recommended that he trial Tylenol and ibuprofen before being prescribed narcotics
since he was already a week out from surgery. It was noted in his discharge
summary that the Dr. had suggested Norco, if needed but there was not a specific
prescription for Norco. Due to the patient seeming to tolerate his pain level, Norco
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was not ordered. The patient reports he was told there are more gall stones that were
unable to be retrieved during surgery and he would have to pass them. He reports
he thought this is what was happening leading into 1/25/23. There was a phone
conversation, on 1/28/23 and it was noted that the patient was having additional
pain but had hung up on the nurse, so it was not pursued further. He was then seen
again on 1/30/23, with complaints of pain but had walked out of the visit, so this
was no [sic] pursued further or discussed with the MP. Due to the patient hanging
up and walking out of his visits related to pain, I was unaware of the extent of what
was going on.
Patient presents today with pain at a 2-3/10. He reports it is manageable. He
reports he has taken a couple of the steri strips off that have started to peel in the
shower. These 2 incisions are healed nicely with no signs of infection. There are 4
other incisions that still have steri strips on them. There is no redness, warmth,
swelling or drainage noted. Patient instructed he may take the steri strips off as they
begin to peel, but not to rip them off. He denies additional concerns at this time.
Medical Records at PageID.750.
This record does not support plaintiff’s claim that NP Alviar was deliberately
indifferent to his serious medical needs. The gist of plaintiff’s claim is that defendants would not
supply him with Norco, a narcotic pain medication. While plaintiff claimed that hospital personnel
had discharged him with a prescription for Norco, there is no evidence of such a prescription.
Medical personnel evaluated plaintiff’s post-operative condition. 	However, plaintiff did not
pursue pain medications other than Norco. The medical records indicate that plaintiff refused to
address his medical conditions with the medical staff. Plaintiff hung up on RN Jones and left his
appointment with RN Sherwood before she dispensed him any pain relievers. A voluntary refusal
of treatment precludes an Eighth Amendment claim. Palmer v. Wagner, 3 Fed. Appx. 329, 331
(6th Cir. 2001). “Prison officials are not deliberately indifferent to a prisoner’s serious medical
needs when the prisoner refuses to accept medical treatment.” Johnson v. Allen, No. 1:15-cv-1329,
2016 WL 860428 at *4 (W.D. Mich. March 7, 2016). 	At most, plaintiff’s claim amounts to an
allegation that NP Alviar did not accurately assess his level of pain and should have prescribed
him Norco. Such a claim would amount to negligence rather than a federal constitutional violation.
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See Farmer, 511 U.S. at 835. Accordingly, defendant NP Alviar’s motion for summary judgment
should be granted.
IV. 	Recommendation
For these reasons, I respectfully recommend that defendant RN Sherwood’s motion
for summary judgment (ECF No. 106) be GRANTED, that NP Alviar’s motion for summary
judgment (ECF No. 105) be GRANTED, and that this action be terminated.
Dated: January 15, 2026 	/s/ Ray Kent
RAY KENT
United States Magistrate Judge
ANY OBJECTIONS to this Report and Recommendation must be served and filed with the Clerk
of the Court within fourteen (14) days after service of the report. All objections and responses to
objections are governed by W.D. Mich. LCivR 72.3(b). Failure to serve and file written objections
within the specified time waives the right to appeal the District Court’s order. Thomas v. Arn, 474
U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
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