Nicholson #462661 v. Dankert et al

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CHRISTOPHER NICHOLSON,
Case No. 1:24-cv-960
Plaintiff,
Hon. Hala Y. Jarbou
v.
CHRISTOPHER DANKERT and
UNKNOWN MERZ,
Defendant.
/
REPORT AND RECOMMENDATION
This is a pro se civil rights action brought pursuant to 42 U.S.C. § 1983 by
Christopher Nicholson, a prisoner in the custody of the Michigan Department of Corrections
(MDOC). Nicholson sued an unknown party and Unknown [Dana] Merz, LPN. This matter is
now before the Court on defendant Merz’s motion for summary judgment (ECF No. 36). Plaintiff
did not oppose the motion.
I. 	The complaint
The alleged incidents occurred at the MDOC’s Oaks Correctional facility (ECF).
The Court summarized plaintiff’s complaint as follows:
On April 9, 2024, Plaintiff used the emergency light in his cell to notify
non-party Officer Bladzik that he needed medical attention. (Compl., ECF No. 1,
PageID.3.) Plaintiff told Officer Bladzik that he had fallen down the stairs and “was
having extreme pain in [his] left ankle.” (Id.) Plaintiff contends that his ankle “was
swollen to where you could not tell the difference between [his] ankle and foot.”
(Id.) Plaintiff alleges that another officer saw him fall down the stairs. (Id.)
Officer Bladzik contacted healthcare and spoke to Defendant Merz. (Id.)
Plaintiff claims that non-party Officers Cochrane and Bladzik told him to return to
his cell, and Officer Cochrane told Plaintiff that healthcare said to fill out a kite and
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that he would be called. (Id.) Plaintiff “limped back down to [his] cell,” “[b]arely
able to move . . . or rotate [his] ankle.” (Id.)
Plaintiff alleges that he had already filled out a healthcare kite. (Id.) Over
the next few hours, Plaintiff “periodically complained” to the housing unit officer;
the officer contacted health care again, stating that “healthcare was just brushing it
off.” (Id.)
After lunch, Plaintiff spoke to non-party Officer Jacobs, who told Plaintiff
that she and Officer Bladzik had just got off the phone with healthcare. (Id.) Officer
Jacobs told Plaintiff that “she didn’t know what was going on but they said
([Defendant] Merz) that they would get to it when they did.” (Id.)
At around 3:00 p.m., Plaintiff stopped Officer Cochrane during rounds and
showed Officer Cochrane his foot. (Id., PageID.4.) Plaintiff asked “who they had
been talking to in healthcare all day because [he] was in pain.” (Id.) Officer
Cochrane left and came back “with a grievance stating that Officer [Bladzik] and
[Officer] Jacobs said that it had been [Defendant] Merz and to write a grievance.”
(Id.) Plaintiff wrote the grievance, and as he was walking up the stairs to submit the
grievance, his foot gave out and he fell. (Id.) Plaintiff was finally escorted to the
healthcare department. (Id.)
On April 25, 2024, Plaintiff received a response to his grievance stating that
Defendant Merz was told by Defendant Unknown Party to have Plaintiff fill out a
kite, which Plaintiff had already done. (Id.) Plaintiff appealed, and non-party
Patricia Lamb, in the Step II response, wrote: “It is acknowledge[d] that prompt
evaluation by a registered nurse would have been the preferred [response] to the
initial report.” (Id.)
Plaintiff alleges that between April 9, 2024, and July 2, 2024, he submitted
numerous healthcare kites “complaining of continued pain in [his] foot an[d]
ankle.” (Id., PageID.5.) Plaintiff contends that he was also experienced lower back
pain up until June 15, 2024. (Id.)
Plaintiff was eventually seen by non-party Dr. Crompton. (Id.) Plaintiff told
Dr. Crompton that his ankle was “constantly popping” and that it was painful for
him to go up and down the ladder to his top bunk. (Id.) Plaintiff also mentioned his
lower back pain. (Id.) Plaintiff requested “a lower bunk detail or special
accommodation until [he was] completely healed.” (Id.) Dr. Crompton said, “Not a
chance.” (Id.) Plaintiff subsequently submitted numerous kites and another
grievance. (Id.)
Plaintiff goes on to state that he has been experiencing ongoing retaliation
and deliberate indifference from healthcare staff, as well as non-parties Warden
Burgess, Assistant Deputy Warden Erway, and Grievance Coordinator T. Bassett.
(Id., PageID.6.) Plaintiff claims that his healthcare kites are not responded to, and
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his grievances are either denied or not accepted. (Id.) Plaintiff suggests that this is
“to try and bar [his] access to the courts.” (Id.) Plaintiff also alleges that his bottom
bunk detail was revoked before he was fully healed, causing him to “fall[] out [of]
the bunk.” (Id.)
Based upon the foregoing, Plaintiff asserts Eighth Amendment claims for
deliberate indifference to serious medical needs, as well as Fourteenth Amendment
equal protection claims. (Id., PageID.7-8.) Plaintiff also suggests that Defendants
disregarded MDOC Policy Directive 03.04.100, regarding health services. (Id.)
Plaintiff seeks injunctive relief in the form of an order for “a second opinion of [his]
injury from an outside doctor [and an] X-ray to determine if [his] ankle was broken
and healed incorrectly.” (Id., PageID.9.) Plaintiff also requests compensatory and
punitive damages. (Id.)
Opinion (ECF No. 5, PageID.26-28).1
After the initial review, the Court dismissed plaintiff’s official capacity claims and
his Fourteenth Amendment equal protection claims. Id. at PageID.36. The only claims remaining
in this lawsuit are personal capacity Eighth Amendment claims against defendants and his state
law claims alleging violations of MDOC policy. Id.
II. 	Motion for summary judgment
A. 	Legal standard
Defendant LPN Dana Merz has moved for summary judgment. “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.” 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:
1 In reaching this determination, the Court noted that,
Although Plaintiff refers to ongoing retaliation and attempts to bar his access to the courts
(Compl., ECF No. 1, PageID.6), he sets forth no facts suggesting that the named Defendants were
involved in these alleged actions. Accordingly, the Court does not construe Plaintiff’s complaint to
assert First Amendment retaliation and access to the courts claims against Defendants.
Id. at PageID.28, fn. 2.
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(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).
Plaintiff did not file a responsive brief as required by W.D. Mich. LCivR 7.2(c)
which requires that “any party opposing a dispositive motion shall, within twenty-eight (28) days
after service of the motion, file a responsive brief and any supporting materials”. “The fact that
there has been no response to a summary judgment motion does not, of course, mean that the
motion is to be granted automatically.” Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). The
trial court is required to “intelligently and carefully review the legitimacy of such unresponded-to
motion” and cannot “blithely accept the conclusions argued in the motion.” Guarino v. Brookfield
Township Trustees, 980 F.2d 399, 407 (6th Cir. 1992). 	However, when a motion for summary
judgment is unopposed, “[n]othing in either the Rules or case law supports an argument that the
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trial court must conduct its own probing investigation of the record” to demonstrate the existence
of genuine issues of material fact. Id. at 405.2
C. 	Eighth Amendment claim
1. 	Legal standard
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.
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
2 The Court notes that plaintiff included a “verification” at the end of his complaint, presumably so that it could serve
as supporting material for a response to a motion for summary judgment. See Compl. at PageID.10; Lavado v.
Keohane, 992 F.2d 601, 605 (6th Cir. 1993) (a verified complaint has the same force and effect as an affidavit for
purposes of responding to a motion for summary judgment). However, plaintiff’s declaration does not use the statutory
language required to create an unsworn declaration under penalty of perjury. See 28 U.S.C. § 1746 (requiring that the
document must declare, certify, verify or state “under penalty of perjury under the laws of the United States of America
that the foregoing is true and correct”). Rather, plaintiff diluted the statutory requirements by declaring that his
statements are “true to best of information, knowledge and belief and that these statements are accurate”. PageID.10.
In this regard, summary judgment cannot be granted on facts based upon a person’s “belief.” See Ondo v. City of
Cleveland, 795 F.3d 597, 605 (6th Cir. 2015) (“statements made on belief or on information and belief, cannot be
utilized on a summary-judgment motion”) (internal quotation marks omitted). Even if plaintiff’s verification was
valid, he did not file a response to defendant’s motion for summary judgment. It is not the function of this Court to
create legal arguments for plaintiff to respond to defendant’s motion. “The Court’s role is adjudicatory; it is not an
advocate.” Burley v. Miller, 241 F. Supp. 3d 828, 840 (E.D. Mich. 2017).
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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
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). “For
prisoners to prove grossly inadequate care, moreover, courts generally require them to introduce
medical evidence, typically in the form of expert testimony.” Id. In short, “[m]edical malpractice
does not become a constitutional violation merely because the victim is a prisoner.” Estelle, 429
U.S. at 106.
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 8th Amendment violation. Id. at 835. “It is obduracy and
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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).
2. 	Discussion
The record reflects that LPN Merz did not have direct contact with plaintiff. Rather,
Merz took a telephone call from plaintiff’s housing unit about his ankle injury, consulted with an
RN on the procedure for scheduling an evaluation of the injury, and relayed that information to
the housing unit staff:
5. I received a call from the Housing Unit 2 at approximately 9:00 am on April 9,
2024, regarding Nicholson.
6. I was informed during the call Nicholson was seen “spraining his ankle yesterday
going down the stairs.”
7. The call further informed me Nicholson was “slightly limping.”
8. I spoke to RN Christopher Dankert, who was assigned to the clinic, and explained
the information I received.
9. RN Dankert advised me to have Nicholson fill out a medical kite so he could be
scheduled for an evaluation.
10. I relayed this information to the Housing Unit 2 Staff.
11. I do not recall receiving any further calls from Housing Unit 2 for the remainder
of my shift.
12. If I had received any other calls, I would have documented them, but there are
no other calls documented in the medical record until Nicholson was brought to
Healthcare and seen by RN Luce.
13. As an LPN I am not permitted to schedule inmates for call-outs to Healthcare.
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14. As an LPN, I am not authorized to provide medical care without the direction
of an RN or other authorized medical provider.
Merz Decl. (ECF No. 37-6, PageID.201). LPN Merz’s Declaration is consistent with the medical
records, which include the following administrative note of the incident which occurred on April
9, 2024:
C/O Bladzik contacted healthcare to make us aware that Inmate Nicholson was
“witnessed spraining his ankle yesterday going down the stairs”. Inmate is reported
to be “slightly limping and requested a healthcare kite. 	RN consulted. 	Inmate
advised to fill out kite and will be scheduled for evaluation.
Medical Record (ECF No. 37-5, PageID.171-174).3
As an initial matter, LPN Merz contends that plaintiff’s injury did not present a
serious medical need. The Court disagrees. The objective component of a § 1983 claim asserting
a constitutional violation for denial of medical care requires the existence of a “sufficiently
serious” medical need. Jones v. Muskegon County, 625 F.3d 935, 941 (6th Cir. 2010). “Such a
medical need has been defined as 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.’ ” Id., quoting Harrison v. Ash, 539 F.3d 510, 518 (6th Cir. 2008) (citations
omitted). 	Here, LPN Merz did not observe the injury and relied on a description from housing
unit staff, i.e., that plaintiff fell the previous day and was slightly limping. 	Under the
circumstances, LPN Merz considered this to be a medical need which was sufficiently serious to
require an evaluation by an RN.
Assuming that plaintiff’s ankle injury met the objective component of an Eighth
Amendment claim, plaintiff’s claim fails. There is no evidence that LPN Merz met the subjective
3 LPN Merz’s note was amended on April 12, 2024. PageID.174. The original note identified C/O Nickerson as the
MDOC employee who contacted healthcare. The amended note identified the C/O Bladzik as the MDOC employee
who contacted healthcare.
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component of that claim. The record reflects that Merz responded to the phone call and followed
the instructions provided by the RN to schedule an evaluation. 	Merz’s actions do not exhibit a
“sufficiently culpable state of mind, equivalent to criminal recklessness.” Santiago, 734 F.3d at
591. For these reasons, LPN Merz’s motion for summary judgment should be granted.4
III. 	State law claim
This leaves plaintiff’s state law claims against LPN Merz alleging violations of
MDOC policy. Ordinarily, where a district court has exercised jurisdiction over a state law claim
solely by virtue of supplemental jurisdiction and the federal claims are dismissed prior to trial, the
court will dismiss the remaining state law claims. See Experimental Holdings, Inc. v. Farris, 503
F.3d 514, 521 (6th Cir. 2007) (“Generally, once a federal court has dismissed a plaintiff’s federal
law claim, it should not reach state law claims.”); Landefeld v. Marion General Hospital, Inc., 994
F.2d 1178, 1182 (6th Cir. 1993). In determining whether to retain supplemental jurisdiction, “[a]
district court should consider the interests of judicial economy and the avoidance of multiplicity
of litigation and balance those interests against needlessly deciding state law issues.” Landefeld,
994 F.2d at 1182; see also Moon v. Harrison Piping Supply, 465 F.3d 719, 728 (6th Cir. 2006)
(“Residual jurisdiction should be exercised only in cases where the interests of judicial economy
and the avoidance of multiplicity of litigation outweigh our concern over needlessly deciding state
law 	issues.” 	(internal 	quotation 	marks 	omitted)). 	Dismissal, 	however, 	remains 	“purely
discretionary.” Carlsbad Technology, Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009) (citing 28
U.S.C. § 1367(c)). Here, the balance of the relevant considerations weighs against the continued
4 The Court notes that LPN Merz also sought summary judgment on the affirmative defense of qualified immunity.
See Defendant’s Brief (ECF No. 37, PageID.136-138). Because there was no constitutional violation, it is unnecessary
to address Merz’s arguments addressing this affirmative defense.
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exercise of supplemental jurisdiction. Accordingly, plaintiff’s state law claims should be dismissed
without prejudice.
IV. 	Unknown or “Doe” defendant
As discussed, plaintiff’s lawsuit included an unknown party or “Doe” defendant.
A Doe defendant listed in a complaint is not a party to a lawsuit. Rather, “Doe defendants are
routinely used as stand-ins for real parties until discovery permits the intended defendants to be
installed.” 	Hindes v. FDIC, 137 F.3d 148, 155 (3rd Cir. 1998) (internal quotation and citation
omitted). The failure to identify and serve a Doe defendant constitutes failure to prosecute and
warrants a dismissal of that defendant. See Saucier v. Camp Brighton Prison, No. 13-15077, 2016
WL 11468926 at *3 (April 26, 2016), R&R adopted, 2016 WL 3251761 (E.D. Mich. June 14,
2016). After the close of discovery, plaintiff identified the unknown defendant as RN Chrisopher
Dankert and sought to amend his complaint. 	The Court denied plaintiff’s motion to amend the
complaint to add RN Dankert as a new defendant. 	See Order (ECF No. 42). 	Plaintiff did not
appeal the order. Accordingly, plaintiff’s claims against the unserved defendant should be
dismissed without prejudice and this case should be dismissed.
V. 	Recommendation
For these reasons, I respectfully recommend that defendant Merz’s motion for
summary judgment (ECF No. 36) be GRANTED.
I further recommend that plaintiff’s state law claim against defendant Merz be
DISMISSED.
I further recommend that claims against the unserved defendant be DISMISSED.
I further recommend that this lawsuit be terminated.
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Dated: January 6, 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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