Yant #237696 v. Washington et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JAMES N. YANT #237696,
Plaintiff, 	Hon. Hala Y. Jarbou
v. 	Case No. 1:24-cv-702
HEIDI E. WASHINGTON, et al.,
Defendants.
____________________________________/
REPORT AND RECOMMENDATION
Plaintiff, a prisoner incarcerated with the Michigan Department of Corrections (MDOC) at
the Bellamy Creek Correctional Facility (IBC), filed a complaint pursuant to 42 U.S.C. § 1983 on
July 8, 2024, against numerous MDOC employees and MDOC contractors alleging violations of
his constitutional rights based on events that occurred at both IBC and Lakeland Correctional
Facility (LCF). Plaintiff filed an amended complaint (ECF No. 16), which the Court reviewed
pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c) and issued an Opinion and
Order on March 3, 2025 (ECF Nos. 7 and 8) dismissing certain claims and Defendants. Following
that review, Plaintiff’s remaining claims are Eighth Amendment deprivation of adequate medical
care claims against Defendants Oullette, Simon, Coleman, and Bomber. (ECF No. 7 at
PageID.170–71.)
Presently before me is the Motion to Dismiss Pursuant to Federal Rules of Civil Procedure
8 and 12(b)(6) of Defendants Bomber, Coleman, and Simon. (ECF No. 38.) The motion is fully
briefed and ready for decision. Pursuant to 28 U.S.C. § 636(b)(1)(B), I recommend that the motion
be GRANTED IN PART, DENIED IN PART, AND DENIED IN PART AS MOOT.
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I. 	Background
The complete factual background of Plaintiff’s claims as alleged in the amended complaint
was set forth in the March 3, 2025 Opinion. (ECF No. 7.) The following facts are pertinent to the
instant motion to dismiss.
Plaintiff injured his neck in 1999 while weightlifting at a correctional facility in Detroit.
(ECF No. 16 at PageID.202.) Over the following decades, Plaintiff complained of re-aggravating
his neck injury at various facilities. While housed at the Chippewa Correctional Facility from
November 2015 until March 2019, medical provider Brenda Buchanon provided Plaintiff with
Tylenol and a second pillow. (Id.)
Plaintiff was transferred to LCF on March 19, 2019. While housed at that facility, Plaintiff
underwent an EMG on August 16, 2021, which revealed “an abnormal study with acute C5-C6,
C6-C7 	radiculopathy 	bilaterally, 	along 	with 	carpal 	tunnel 	syndrome 	bilaterally.” 	(Id. 	at
PageID.203.) On November 9, 2021, Plaintiff underwent an MRI that revealed: “1. Mild to
moderate canal stenosis and foraminal encroachment at C5-6. 2. Left lateral recess narrowing and
mild left foraminal encroachment, C3-4, mild bilateral foraminal encroachment at C6-7.” (Id.)
On April 21, 2022, Plaintiff saw specialist Daniel Baxter, D.O., at the Hillsdale Hospital.
Dr. Baxter scheduled pain injections and forwarded a treatment plan to LCF consisting of “pain
management, home exercises (as able), ice therapy[,] and anti-inflammatory medications.” (Id. at
PageID.203–04.) In April 2022, Plaintiff was transferred from LCF to Chippewa Correctional
Center while LCF completed repairs to housing units. While at that facility, Plaintiff was taken to
Chippewa County War Memorial Hospital for pain relief. Plaintiff was seen by Dr. Alshab, who
reviewed the November 9, 2021 MRI report and discussed “the risks/benefits of an epidural steroid
injection to assist with pain as an alternative to surgery.” (Id. at PageID.204.)
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Plaintiff was transferred back to LCF on July 11, 2022, and he was reassigned to Defendant
Oullette for medical care. (Id.) From September 15, 2022, to July 19, 2023, Plaintiff submitted
numerous requests to healthcare staff asking that they follow Dr. Alshab’s recommended treatment
plan, 	which 	included: 	“(1) 	provide 	patient 	with 	‘non-opioid 	therapies;’ 	(2) 	‘lifestyle
modifications;’ (3) ‘physical therapy;’ and (4) ‘interventional procedures.’” (Id.)
Plaintiff was transferred to IBC on November 17, 2022, and assigned Defendant Simon as
his provider. (Id.) Defendant Simon first saw Plaintiff on November 29, 2022. (Id. at PageID.204–
05.) Plaintiff alleges that, during that visit, Defendant Simon reviewed his medical records and the
various treatment plans but refused to follow Dr. Alshab’s recommendations. (Id. at PageID.204.)
Plaintiff alleges that Defendant Simon did not order any effective non-opioid pain medications,
discontinued the use of a second pillow, and failed to provide any other therapies or procedures.
(Id.) However, Plaintiff’s medical records show that on November 10, 2022, Defendant Simon had
ordered Plaintiff Tylenol for 120 days and declined to renew Plaintiff’s Naproxen due to concerns
that it could exacerbate Plaintiff’s diagnosis of GERD. (ECF No. 1-7 at PageID.49.)
Plaintiff alleges that Simon told him that 	he would receive “some sort of pain
management,” but, as of January 9, 2023, Plaintiff had not received any. (ECF No. 16 at
PageID.205.) In answer to Plaintiff’s January 9, 2023 kite request asking for an update on the
status of his pain management request, R.N. West told Plaintiff that his appointment was “currently
pending scheduling.” (ECF No. 1-7 at PageID.54.) Plaintiff saw Defendant Simon again on
February 6, 2023, regarding his neck pain and discomfort. Plaintiff alleges that he asked Defendant
Simon when Plaintiff would be given treatment as the specialists (Drs. Baxter and Alshab) had
recommended. Plaintiff alleges that, although Defendant Simon refused to prescribe any
medication or follow prescribed treatment plans, Defendant Simon told Plaintiff he had been
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approved for “treatment” but the MDOC was short staffed on transport officers. (ECF No. 16 at
PageID.205.)
On June 8, 2023, Plaintiff was sent for an off-site pain consultation with Mark Clark, M.D.
(ECF No. 1-9 at PageID.63–66; ECF No. 16 at PageID.205.) Dr. Clark reviewed the prior EMG
and MRI studies. He noted that over the last couple of years Plaintiff had gone to two different
pain clinics, had seen a neurosurgeon, and in May of 2022, had a cervical epidural injection that
provided some relief for about two weeks. (ECF No. 1-9 at PageID.63.) In his assessment/plan,
Dr. Clark stated that he would go ahead and restart Plaintiff on Naproxen “[i]f there are no
contraindications with regards to the liver[.]” (Id. at PageID.65.) Dr. Clark said that he may
consider repeating the cervical epidural but noted that the previous epidural had provided Plaintiff
only two weeks of relief, so Dr. Clark “would think twice before [he] did that.” (Id.) Instead, Dr.
Clark recommended “facet joint injections.” (Id.) Finally, Dr. Clark recommended repeating the
EMG with possible consideration of repeating the cervical MRI if the EMG was unremarkable.
(Id.)
Plaintiff saw Defendant Simon again on June 21, 2023, following his appointment with Dr.
Clark. (ECF No. 1-10 at PageID.69–73.) Defendant Simon noted that Dr. Clark had recommended
cervical facet injections and bilateral upper extremity EMG with possible repeat of the cervical
MRI. (Id. at PageID.72–73.) Defendant Simon requested both, as well as a pain clinic follow-up
appointment. (Id. at PageID.71–72.) On July 14, 2023, an alternative treatment plan was issued for
the facet joint injections based on medical research recommending against facet joint injections
for chronic back pain. (ECF No. 1-10 at PageID.74.)
On July 19, 2023, Defendant Simon saw Plaintiff at a follow-up appointment. Defendant
Simon noted that Plaintiff was “taking Tylenol and reports he understands why he is avoiding
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NSAID use as he awaits the approved EGD. He adds he has ‘no problem waiting’ for the EGD to
further consider NSAID use[.]” (Id. at PageID.75.) Defendant Simon noted that he spoke with Dr.
Bomber, who was filling in for Dr. Coleman, regarding an alternative treatment plan for the facet
joint injections. Dr. Bomber indicated that facet joint injections were still a possibility for the future
but were “not typically a great long-term solution [and] there are also risks with injections that
lead him to prefer to avoid injections at this point.” (Id. at PageID.77.) Dr. Bomber recommended
waiting for additional information from the upper extremity EMG and possibly a C-spine MRI
before considering facet joint injections. (Id.) Dr. Bomber suggested that Plaintiff refrain from
NSAID use at that time but recommended that Defendant Simon offer Plaintiff duloxetine or
amitriptyline if Plaintiff wanted something else for his chronic pain. (Id.) Defendant Simon
informed Plaintiff about his conversation with Dr. Bomber and told Plaintiff that he agreed with
Dr. Bomber’s recommendations. (ECF No. 16 at PageID.205.) Plaintiff reported that he had tried
amitriptyline in the past but could not tolerate it. Plaintiff said that he wanted some time to further
consider duloxetine and would let healthcare know if he wanted to try it. (ECF No. 1-10 at
PageID.77.)
II. 	Motion Standard
A Rule 12(b)(6) motion to dismiss for failure to state a claim on which relief may be
granted tests the legal sufficiency of a complaint by evaluating its assertions in a light most
favorable to the plaintiff to determine whether it states a valid claim for relief. See In re NM
Holdings Co., LLC, 622 F.3d 613, 618 (6th Cir. 2010).
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a claim must be dismissed for failure
to state a claim on which relief may be granted unless the “[f]actual allegations [are] enough to
raise a right for relief above the speculative level on the assumption that all of the complaint’s
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allegations are true.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007). As the Supreme
Court has held, to survive a motion to dismiss, a complaint must contain “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 677-78 (2009). This plausibility standard “is not akin to a ‘probability requirement,’ but it
asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. If the complaint
simply pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the
line between possibility and plausibility of ‘entitlement to relief.’” Id. As the Court further
observed, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. at 678-79.
In deciding a motion to dismiss, a court “may consider the Complaint and any exhibits
attached thereto, public records, items appearing in the record of the case and exhibits attached to
defendant’s motion to dismiss so long as they are referred to in the Complaint and are central to
the claims contained therein.” Bassett v. National Collegiate Athletic Ass’n, 528 F.3d 426, 430
(6th Cir. 2008).
III. 	Discussion
Initial Screening
Defendants Bomber, Coleman, and Simon move to dismiss Plaintiff’s Eighth Amendment
deliberate indifference claims as well as his First Amendment retaliation claims against them. As
previously mentioned, the Court completed its initial screening on March 3, 2025, and allowed
only Plaintiff’s Eighth Amendment claims against Defendants Oullette, Simon, Coleman, and
Bomber to proceed. (ECF No. 7 at PageID.170–71.) Because no First Amendment retaliation claim
remains against any Defendant, this portion of Defendants’ motion is moot.
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Responding to Defendants’ motion, Plaintiff argues that the motion is improper because
the Court screened the amended complaint and concluded that it stated a plausible claim for
violation of Plaintiff’s Eighth Amendment rights. (ECF No. 41 at PageID.483; see also ECF No.
15 at PageID.197.) The Standard Case Management Order in a Prisoner Civil Rights Case (CMO)
(ECF No. 25) entered on June 24, 2025 provides:
(a) Rule 12(b)(6) Motions. The Court has conducted an initial review of the
complaint pursuant to 28 U.S.C. §1915(e), §1915A and 42 U.S.C. § 1997e(c),
to determine whether it is frivolous, malicious, fails to state a claim upon which
relief can be granted or seeks monetary relief against a defendant that is
immune from such relief. Upon initial review, the Court concludes that the
complaint is not subject to dismissal for any of the reasons listed above. In
reaching this conclusion, the court has determined that the complaint contains
‘enough facts to state a claim to relief that is plausible on its face.’ Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949 (2009) (quoting Twombly, 550 U.S. at 570). Accordingly, the Court
discourages the filing of motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).
(Id. at PageID.423.)
Defendants contend that notwithstanding the CMO’s language “discourage[ing]” the filing
of motions to dismiss, nothing therein precludes them from doing so. This is correct. As noted in
Anderson v. Huss, No. 2:21-cv-123, 2023 WL 10682683 (W.D. Mich. Oct. 26, 2023), report and
recommendation affirmed, 2024 WL 1152270 (W.D. Mich. Mar. 18, 2024), “[n]othing within the
CMO stated that the Federal Rules of Civil Procedure did not apply to this case or that a party
could not file a motion to dismiss.” Id. at *6. Defendants argue that their motion is also proper
because the screening opinion was conducted on the original complaint rather than the amended
complaint. (ECF No. 43 at PageID.496.) This is incorrect, as the opinion cites pages of Plaintiff’s
then-proposed 	amended 	complaint. 	(ECF 	No. 	7 	at 	PageID.149 	(citing 	ECF 	No. 	6-1 	at
PageID.127).) However, the screening opinion did not consider the exhibits—Plaintiff’s medical
records—from Plaintiff’s original complaint, which Defendants cite in their motion to dismiss.
Thus, I find it appropriate to consider Defendants’ motion.
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Eighth Amendment Claim
The Eighth Amendment’s prohibition against cruel and unusual punishment applies not
only to punishment imposed by the state, but also to deprivations that occur during imprisonment
and are not part of the sentence imposed. See Farmer v. Brennan, 511 U.S. 825, 834 (1994); Estelle
v. Gamble, 429 U.S. 97, 101-02 (1976). Punishment that is without penological justification or
involves the unnecessary and wanton infliction of pain also violates the Eighth Amendment’s
proscriptions. See Rhodes v. Chapman, 452 U.S. 337, 346 (1981). In other words, the Eighth
Amendment prohibits “the gratuitous infliction of suffering.” Gregg v. Georgia, 428 U.S. 153, 183
(1976).
The unnecessary and wanton infliction of pain encompasses “deliberate indifference” to an
inmate’s “serious medical needs.” Estelle, 429 U.S. at 104-06; Napier v. Madison Cty., 238 F.3d
739, 742 (6th Cir. 2001). Determining whether denial of medical care amounts to an Eighth
Amendment violation involves two steps. First, the court must determine, objectively, whether the
alleged deprivation was sufficiently serious. A “serious medical need” sufficient to implicate the
Eighth Amendment is “one that has been diagnosed by a physician as mandating treatment or one
that is so obvious that even a lay person would easily recognize the necessity for a doctor’s
attention.” Harrison v. Ash, 539 F.3d 510, 518 (6th Cir. 2008). Thus, the objective component is
satisfied where a prisoner receives no treatment for a serious medical need. See Rhinehart v. Scutt,
894 F.3d 721, 737 (6th Cir. 2018).
If the plaintiff satisfies the objective component, he must then demonstrate that the
defendant possessed a sufficiently culpable state of mind:
a prison official cannot be found liable under the Eighth Amendment for denying
an inmate humane conditions of confinement unless 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.
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Farmer, 511 U.S. at 837 (1994). In other words, the plaintiff “must present evidence from which
a trier of fact could conclude ‘that the official was subjectively aware of the risk’ and ‘disregard[ed]
that risk by failing to take reasonable measures to abate it.’” Greene v. Bowles, 361 F.3d 290, 294
(6th Cir. 2004) (citing Farmer, 511 U.S. at 829, 847). To satisfy this part of the analysis, the
plaintiff must demonstrate that the defendant acted with “deliberateness tantamount to intent to
punish.” Miller v. Calhoun Cty., 408 F.3d 803, 813 (6th Cir. 2005).
In its screening opinion, the Court found that Plaintiff alleged a plausible claim against
Defendants because they rejected the various suggested treatment plans without replacing them
with treatment plans of their own and because Plaintiff alleged that his condition had become
worse over the years due to inadequate treatment. (ECF No. 7 at PageID.168.) Plaintiff’s medical
records address some of these issues. As the Court previously observed,
“a patient’s disagreement with his physicians [or other medical providers] over the
proper course of treatment alleges, at most, a medical-malpractice claim, which is
not cognizable under § 1983.” See Darrah, 865 F.3d at 372 (citations omitted).
Furthermore, “a [medical providers]’s decision to reject another doctor’s treatment
recommendation in favor of his [or her] own ‘does not amount to deliberate
indifference 	where 	both 	recommendations 	are 	made 	by 	qualified 	medical
professionals’ and the prison doctor’s decision [wa]s made for a medical reason.”
Lloyd v. Moats, 721 F. App’x 490, 495 (7th Cir. 2017) (citing Shields v. Ill. Dep’t
of Corr., 746 F.3d 782, 797 (7th Cir. 2014); Perez v. Fenoglio, 792 F.3d 768, 778
(7th Cir. 2015)).
(Id. at PageID.167–68.)
Turning first to Defendant Simon, he argues that Plaintiff fails to allege a viable Eighth
Amendment claim against him because the medical records do not show that he consciously
disregarded Plaintiff’s medical needs. First, Defendant Simon notes that his decision not to
prescribe Naproxen was based on his medical decision that Naproxen would exacerbate Plaintiff’s
diagnosis of GERD. Defendant Simon further argues that he reasonably relied on the alternate
treatment plan to facet joint injections that Dr. Bomber proposed recommending that Plaintiff
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await the results of the EMG and possible MRI before proceeding with facet joint injections.
Finally, Defendant Simon argues that Plaintiff’s complaint of discontinuation of an extra pillow
does not amount to an Eighth Amendment violation. (ECF No. 38 at PageID.470–71.)
Defendant Simon’s arguments would be persuasive if Plaintiff’s complaints were limited
to the decisions not to prescribe Naproxen and follow Dr. Bomber’s alternative treatment plan.
However, Plaintiff alleges more. Plaintiff contends that Defendant Simon failed to provide other
aspects of treatment plans the pain management doctors had recommended, such as ice therapy,
physical therapy, and lifestyle modifications. (ECF No. 16 at PageID.205.) Similarly, Plaintiff
complains about Defendant Simon’s discontinuance of a second pillow for neck support, which
“at least four other providers had ordered . . . for spinal support.” (Id.) Defendant Simon cites Perez
v. Oakland County, 466 F.3d 416 (6th Cir. 2006), and Doss v. Corizon, Inc., 636 F. Supp. 3d 807
(W.D. Mich. 2022), for the proposition that lack of comfort items like a second pillow do not
qualify as a sufficiently serious medical condition under Section 1983, but neither of those cases
mentions a pillow and it is not clear how they support Defendant Simon’s argument. On the other
hand, I note that some courts have recognized that denial of a medically necessary extra pillow
could support an Eighth Amendment violation. See Cooper v. McGowan, No. 17-cv-383, 2018
WL 2223671, at *8 (W.D. Wis. May 15, 2018) (issue of fact remained as to whether the
defendant’s refusal to provide the plaintiff with an extra pillow when he was transferred to
segregation constituted deliberate indifference to a serious medical need). Nothing in Plaintiff’s
medical records indicates that Defendant Simon had determined the extra pillow other providers
had ordered was not medically necessary. Therefore, I conclude that, at this juncture, Defendant
Simon is not entitled to dismissal.
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Turning to Defendants Drs. Bomber and Coleman, I conclude that they are entitled to
dismissal because Plaintiff’s medical records show that their alternative treatment plan for facet
joint injections was based on their exercise of medical judgment. As the June 19, 2021 treatment
record indicates, Dr. Bomber recommended delaying—nor foreclosing—facet joint injections
until EMG or C-spine MRI studies were completed because such injections are “not typically a
great long-term solution [and] there are also risks with injections” that first warranted additional
testing. (ECF No. 1-10 at PageID.77.) See Owens v. Hutchinson, 79 F. App’x 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”); Carter v. Michigan Dep’t of Corrs., No. 12-cv-
12621, 2013 WL 5291567, at *4 (E.D. Mich. Sept. 19, 2013) (“A difference of opinion between
medical professionals concerning the appropriate course of treatment generally does not amount
to deliberate indifference to serious medical needs.”) (quoting Acosta v. Naphcare, No. 09-cv-
1998, 2010 WL 3522356, at *5 (D. Nev. Sept. 2, 2010)). As noted, Dr. Coleman kept facet joint
injections on the table as treatment still available to Plaintiff. Because the doctors’ recommended
course of treatment was based on their exercise of medical judgment, and Plaintiff alleges no other
factual basis for liability, I recommend that Defendants Bomber and Coleman be dismissed from
the action.
IV. 	Conclusion
For the reasons set forth above, I recommend that Defendants’ motion to dismiss (ECF No.
38) be granted as to Defendants Bomber and Coleman, denied as to Defendant Simon, and denied
as moot as to the retaliation claim.
Dated: November 24, 2025 	/s/ Sally J. Berens
SALLY J. BERENS
U.S. Magistrate Judge
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NOTICE
OBJECTIONS to this Report and Recommendation must be filed with the Clerk of Court
within 14 days of the date of service of this notice. 28 U.S.C. § 636(b)(1)(C). Failure to file
objections within the specified time waives the right to appeal the District Court’s order. See
Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
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