Kelly #225090 v. Corizon of Michigan et al

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
OPELTON KELLY,
Case No. 1:23-cv-67
Plaintiff,
Hon. Jane M. Beckering
v.
CORIZON OF MICHIGAN, et al.,
Defendants.
/
REPORT AND RECOMMENDATION
Pro se plaintiff Opelton Kelly is a prisoner in the custody of the Michigan
Department of Corrections (MDOC). Kelly filed this action pursuant to 42 U.S.C. § 1983, alleging
that defendants violated his constitutional rights. There is only one defendant remaining in this
lawsuit, NP E’Coe Hill. 	This matter is now before the Court on defendant Hill’s motion for
summary judgment (ECF No. 77).
I. 	Plaintiff’s allegations
Plaintiff’s claims arose at the MDOC’s Lakeland Correctional Facility (LCF).
Opinion (ECF No. 15, PageID.62-65). On initial screening, this Court observed that
The gravamen of Plaintiff’s amended complaint concerns his assertions that
he has not received adequate medical care for numerous conditions. Plaintiff
contends that he has suffered from a mini-stroke, hemangioma tumors, mild facet
disease, paresthesia, gait abnormality, lumbar pain, and numbness in his right and
left legs and feet. (Am. Compl., ECF No. 14-1, PageID.33.) Plaintiff suggests that
Defendants’ failure to treat these conditions means that “paralysis is imminent and
death.” (Id., PageID.34.) Plaintiff, however, does not mention many of these
conditions again in the facts section of his complaint.
Id. at PageID.62-63 (footnotes omitted).
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As discussed in a previous report and recommendation (R&R) and opinion, plaintiff
has one federal claim remaining in this lawsuit, i.e., that NP Hill violated plaintiff’s Eighth
Amendment rights when Hill failed to review his MRI until August 11, 2022. See R&R (ECF No.
47. PageID.312-313) and Opinion and Order (ECF No. 51). Plaintiff also alleged state law claims
for gross negligence and medical malpractice NP Hill. See Opinion (ECF No. 15, PageID.79).
II. 	Defendant’s Motion for summary judgment
A. 	Legal standard
“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:
(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.
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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).
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.
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
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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
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. 	Medical record
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NP Hill treated plaintiff both before and after the alleged incident. 	On May 23,
2022, plaintiff underwent an EMG of his lower extremities due to numbness in his right leg and
foot and other symptoms. 	Medical Records (ECF No. 771, PageID.480). 	After completing the
test, Dennis Dafnis. M.D. diagnosed plaintiff with “Radiculopathy, lumbosacral region”, discussed
the findings with plaintiff, and advised follow-up with his primary care physician. 	Id. at
PageID.482. The medical records note that former defendant NP Heather Doolittle was involved
in plaintiff’s referral. Id. at PageID.476, 482.
On May 25, 2022, NP Hill reviewed the results of the EMG consultation with Dr.
Dafnis, M.D. See Hill Aff. (ECF No. 77-2, PageID.535).
On June 7, 2022, NP Hill noted the findings and requested an “MRI of lumbar spine
w/o contrast due to paresthesia & worsening pain.” Medical Records at PageID.494. In support
of this referral, NP Hill noted that,
[Plaintiff is a] 48 y/o male with ongoing low back pain rated 6/10 described as a
constant ache with intermittent throbbing and “bee stings”. This pain causes
radiculopathy down his leg into his foot. He has tried steroids, NSAIDS, and HEP
without improvement. He is having difficulty sleeping due to pain and inability to
get comfortable. 	Patient has lumbar spine tenderness with decreased muscle
strength in the right leg compared to the left. He has Decreased Lumbar Lordosis,
however good Forward Flexion, Hyperextension, Lateral Bending, Rotation, and
Straight Leg Raise. Pt. had EMG study on 5/23/22 & has trialed NSAIDS, tylenol,
Hep exercises, steroids, activity modification without benefit. EMG impression
showed L4-L5 acute radiculopathy and L5- S1 Right >Left.
Id. On June 9, 2022, NP Hill also reviewed the results of the EMG in plaintiff’s records. Id. at
PageID.484-487.
On July 8, 2022, plaintiff underwent an MRI of his lumbar spine. 	Based on this
test, the radiologist concluded that that there was “[n]o disc herniation or central canal stenosis”
but that there was “mild facet disease in L3-l4 through L5-S1”. NP Hill reviewed the results on
July 19, 2022. See Medical Records at PageID.502-504.
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On July 18, 2022, plaintiff submitted a kite requesting to see the PA (Physician
Assistant) and requested to know why he had not been informed of his MRI results. RN Travis
informed plaintiff his next provider visit was in November, that nursing cannot make appointments
for the providers, and if he would like to be seen by a nurse, an appointment can be scheduled. RN
Travis further stated he could not tell plaintiff why his provider has not informed him of the MRI
results. Id. at PageID.505.
On July 27, 2022, plaintiff submitted a kite requesting “something” for his back
pain, leg numbness and requesting to see the PA. A nursing appointment was scheduled. Id. at
PageID.506. On August 1, 2022, plaintiff presented for a nursing visit with RN Lampert. Plaintiff
complained of pain in his lower back and right leg, which he rated as an eight out of ten. RN
Lampert noted a normal musculoskeletal examination with decreased range of motion. RN
Lampert ordered a routine nursing referral to the medical provider and instructed plaintiff to take
Tylenol and Ibuprofen, walk daily, take warm/hot showers. Lampert also and provided him with
a handout to restart back stretches. Id. at PageID.507-509. When plaintiff stated that he was out
of Tylenol/Ibuprofen, Lampert educated plaintiff that these can be purchased in the store “but will
give him samples today.” Id. at PageID.508. Lampert also encouraged plaintiff “to begin back
stretches again.” Id.
On August 9, 2022, plaintiff submitted a kite to see the PA. RN Villasan informed
plaintiff that he was scheduled to see his provider very soon. 	Id. at PageID.510-511. 	Villasan
advised plaintiff that if he needs to see nursing in the meantime, to “please kite and let us know.”
Id. 	The record reflects that plaintiff was scheduled for August 11, 2022, at 12:30 p.m. Id.
On August 11, 2022, plaintiff met with NP Hill. At that time, NP Hill noted plaintiff
did not have cauda equina symptoms, saddle paresthesia, or bladder/bowel incontinence. Plaintiff
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had reported back pain for a couple years, stated he does not take NSAIDS, and reported his pain
resolved when he took his steroid dose last year. NP Hill noted plaintiff had an MRI in July, which
showed mild facet arthropathy and the EMG showed radiculopathy to L3-L5 and L5-S1. Medical
Records at PageID.512.
On examination, NP Hill noted that plaintiff had full range of motion, was
nontender on palpitation, had normal bony landmarks, and had normal passive range of motion.
Id. at PageID.514. NP Hill ordered Prednisone 10mg and Naproxen 375 mg. A provider visit was
ordered to follow up after steroids, a short trial of NSAIDS, and sciatica stretches. 	Id. at
PageID.515. Hill noted if there was no improvement, she would place a referral for an epidural
steroid injection (ESI). Id.
On September 15, 2022, NP Hill performed a chart review after plaintiff requested
Naproxen. Hill noted that plaintiff could purchase the medication from the prisoner store. Id. at
PageID.522.
D. 	Discussion
As an initial matter, the Court concludes that plaintiff met the objective component
of an Eighth Amendment claim. According to the medical record, plaintiff’s condition required
an EMG, an MRI, and medications. The issue before the Court is whether plaintiff has met the
subjective component. Here, plaintiff apparently contends that NP Hill acted with a sufficiently
culpable state of mind because she did not meet with plaintiff to discuss his MRI results until
August 11, 2022.
Based on this record, the Court concludes that plaintiff has failed to establish the
subjective component of his Eighth Amendment claim. The record reflects that NP Hill did not
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review plaintiff’s MRI results until July 19, 2022. 	Then, Hill met with plaintiff on August 11,
2022 (24 days later). In her affidavit, NP Hill stated that,
Based on my review of the MRI and using my medical training and judgment, I
determined 	the 	findings 	did 	not 	indicate 	a 	need 	for 	urgent 	or 	immediate
intervention. Mr. Kelly was placed on my schedule for August 11, 2022.
Hill Aff. (ECF No. 77-2, PageID.536).
Plaintiff has not presented expert evidence to contradict NP Hill’s medical
judgment that he did not need urgent or immediate care before scheduled appointment on August
11, 2022. See Phillip, 14 F.4th at 535. 	In this regard, the medical record bears out Hill’s opinion
that this was not an urgent situation. When plaintiff saw RN Lampert on August 1, 2022, Lampert
noted that plaintiff had a normal musculoskeletal examination with decreased range of motion and
referred treatment for that condition, which included taking Tylenol/Ibuprofen, warm/hot showers,
walking daily, and to begin back stretches again. Based on this record, NP Hill should be granted
summary judgment on this Eighth Amendment claim.
III. 	State law claims
As discussed, plaintiff’s amended complaint also included state law claims against
NP Hill. 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,
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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
exercise of supplemental jurisdiction. Accordingly, plaintiff’s state law claims should be
dismissed.
IV. 	Recommendation
For these reasons, I respectfully recommend that defendant NP Hill’s motion for
summary judgment (ECF No. 77) be GRANTED, that his state law claims be DISMISSED, and
that this action be terminated.
Dated: January 22, 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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