White #838737 v. Chippewa Correctional Facility et al

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
MARQUISE WHITE #838737, 	Case No. 2:23-cv-196
Plaintiff, 	Hon. Paul L. Maloney
U.S. District Judge
v.
CHIPPEWA CORRECTIONAL FACILITY, et al.,
Defendants.
/
REPORT AND RECOMMENDATION
I. 	Introduction
This Report and Recommendation (R. & R.) addresses a motion for summary
judgment filed by Defendant Nurse Practitioner (N.P.) Danya Russo, ECF No. 67,
Plaintiff’s response in opposition, ECF No. 68, and Russo’s reply, ECF No. 69.
Plaintiff – state prisoner Marquise White – filed an unverified civil complaint
under 42 U.S.C. § 1983 alleging that Defendants violated his Eighth Amendment
rights while he was incarcerated at Chippewa Correctional Facility (URF). 	ECF No.
1. 	More specifically, Plaintiff asserts that Defendants were deliberately indifferent
to a knee injury he suffered. 	Id. 	In addition to his Eighth Amendment claim,
Plaintiff also asserts a state law claim for medical malpractice. 	Following this
Court’s screening opinion, only Plaintiff’s Eighth Amendment deliberate indifference
and state law medical malpractice claims against N.P. Russo remain. 	ECF No. 9,
PageID.109
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In her motion for summary judgment, N.P. Russo argues that Plaintiff has
placed no verifying medical evidence in the record to establish a detrimental effect of
delayed treatment. 	Additionally, she argues that she provided extensive treatment
to Plaintiff’s knee and that Plaintiff has failed to satisfy the subjective component of
his deliberate indifference claim.
In the opinion of the undersigned, there are no genuine dispute of material
facts as to Plaintiff’s Eighth Amendment claim. 	It is respectfully recommended that
the Court grant Defendant Russo’s motion for summary judgment and dismiss
Plaintiff’s case.
II. 	Factual Allegations
This Court issued a screening opinion in this case on December 12, 2023. 	In
that opinion, the Court provided the following summary of Plaintiff’s allegations, in
pertinent part:
Plaintiff alleges that on April 7, 2022, he was transferred to URF and
immediately informed Healthcare Services about his left knee pain.
(ECF No. 1, PageID.4.) Plaintiff noted that healthcare staff at his prior
facility had just diagnosed a musculoskeletal tear in the left knee. (Id.)
Plaintiff stated that he was in severe pain and that his knee was
swollen. (Id.) Plaintiff asserted that he could barely walk and that he
had to drag his left leg, which felt painful and heavy. (Id.)
Plaintiff saw multiple RNs who told him that there was nothing they
could do but refer him to the head Nurse Practitioner. (Id.) Plaintiff
alleges that he submitted 10 to 12 healthcare kites over the course of
two months. (Id.) Each time, he was told he was on the waiting list. (Id.)
Plaintiff was called out to see Defendant Russo on June 22, 2022. (Id.)
Plaintiff told her about his pain and swelling, and the diagnosis by prior
healthcare staff at the St. Louis Correctional Facility. (Id.) Defendant
Russo told Plaintiff that he was overreacting and that there was nothing
wrong with him, “just a little swollen knee.” (Id.) Plaintiff alleges that
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Defendant Russo told him to “stop crying like a baby and be a man.” (Id.)
Defendant Russo said that she would refer Plaintiff for an X-ray, and
Plaintiff stated that an X-ray would not show tissue damage. (Id.)
Defendant Russo responded that she knew that there was nothing
wrong with Plaintiff, but that she would prove it via an X-ray. (Id.,
PageID.5.)
Plaintiff had an X-ray on June 23, 2022. (Id.) On June 29, 2022, he saw
Defendant Russo again, and she reiterated that there was nothing
wrong with Plaintiff, and that he should “stop being a baby and grow
up.” (Id.) Plaintiff responded that he was still in pain and his knee was
still swollen, and that the X-ray would not show a musculoskeletal tear.
(Id.) Defendant Russo told Plaintiff to “get out [of] her office.” (Id.)
Plaintiff asked for a bottom bunk detail; Defendant Russo said “no, [you
are] ok[,] stop crying.” (Id.)
Plaintiff continued to submit healthcare kites and wrote grievances
about his care. (Id.) He was called out on July 13, 2022, and “the same
conversation was held with [him] and [Defendant] Russo which was the
same results of [Plaintiff] being in pain and her saying [he was] a baby.”
(Id.) Defendant Russo told Plaintiff to stop submitting kites because
nothing was going to change. (Id.) Plaintiff asked for an MRI, and
Defendant Russo told him that the MDOC would not send him for an
MRI for musculoskeletal issues. (Id.) Defendant Russo told Plaintiff that
she would try to get him physical therapy, stating that there was
nothing wrong with Plaintiff “but we can play games.” (Id.)
Plaintiff saw non-party RN Ankiel on September 26, 2022. (Id.) RN
Ankiel told Plaintiff that “she understands the pain and she [does not]
understand how nothing [has] been done.” (Id.) She gave Plaintiff an
ACE wrap and told Plaintiff that she would schedule him to see a nurse
practitioner. (Id.)
Plaintiff saw non-party Dr. Timothy Stallman on October 6, 2022. (Id.)
At that visit, Dr. Stallman asked Plaintiff how long he had been in pain.
(Id., PageID.6.) Plaintiff responded for almost a year. (Id.) Dr. Stallman
told Plaintiff he was “99% sure [Plaintiff had] a musculoskeletal tear in
[his] left knee and someone should have [done] something” for it. (Id.)
Plaintiff mentioned that he had seen Defendant Russo; Dr. Stallman
responded “wow” and told Plaintiff that he would refer Plaintiff for an
MRI to be sure. (Id.) Plaintiff had the MRI on December 12, 2022, and
the MRI confirmed the suspected musculoskeletal tear. (Id.)
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Plaintiff saw Defendant Russo again on December 22, 2022, and she told
Plaintiff that he would be having surgery soon and that Plaintiff was
right. (Id.) Defendant Russo apologized for the “misdiagnosis to the
knee.” (Id.)
Plaintiff had surgery in April of 2023. (Id.) The surgeon told Plaintiff
“they had extra things they had to fix with [his] kneecap because it was
way to[o] long to get [Plaintiff] help.” (Id.) Non-party Dr. Woolever
assured Plaintiff that “he would do all he could but this is an injury that
is [permanently] damage[d].” (Id.) Dr. Woolever also said that Plaintiff
would receive strength shots to the knee. (Id.)
Subsequently, Defendant Russo removed Plaintiff’s medical hold, and
Plaintiff told her that he still needed to see Dr. Woolever for the shots.
(Id.) Defendant Russo responded that Plaintiff did not need them. (Id.)
Plaintiff was then transferred from URF to ECF, where he told a non-
party nurse practitioner about his pain and the shots he was supposed
to have received after surgery. (Id.) The nurse practitioner contacted Dr.
Woolever, who said that Plaintiff did need the shots and that he should
see Dr. Woolever immediately. (Id.)
Based on the foregoing, Plaintiff asserts Eighth Amendment claims for
deliberate indifference to medical needs, as well as state law medical
malpractice claims. (Id., PageID.7.) He seeks reimbursement of all
healthcare co-payments, as well as $1 million in damages. (Id.)
ECF No. 9, PageID. 93-95.
III. 	Summary Judgment Standard
Summary judgment is appropriate when the record reveals that there are no
genuine issues as to any material fact in dispute and the moving party is entitled to
judgment as a matter of law. 	Fed. R. Civ. P. 56; Kocak v. Comty. Health Partners of
Ohio, Inc., 400 F.3d 466, 468 (6th Cir. 2005). 	The standard for determining whether
summary judgment is appropriate is “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.” 	State Farm Fire & Cas. Co. v. McGowan,
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421 F.3d 433, 436 (6th Cir. 2005) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251−52 (1986)). 	The court must consider all pleadings, depositions, affidavits,
and admissions on file, and draw all justifiable inferences in favor of the party
opposing the motion. 	Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986); Twin City Fire Ins. Co. v. Adkins, 400 F.3d 293, 296 (6th Cir.
2005).
IV. 	Verification and Rule 56 Materials
As noted above, in ruling on a summary judgment motion, a court must decide
whether a genuine issue of material fact remains. 	Fed. R. Civ. P. 56(a). 	The
materials a court may consider in making this assessment are identified in Fed. R.
Civ. P. 56(c). 	Courts, however, allow a plaintiff to rely on a “verified complaint,”
which has “‘the same force and effect as an affidavit’ for purposes of responding to a
motion for summary judgment.” 	Lavado v. Keohane, 992 F.2d 601, 605 (6th Cir.
1993) (quoting Williams v. Browman, 981 F.2d 901, 905 (6th Cir.1992)). 	To qualify
as “verified,” a complaint must be executed in a manner that meets the requirements
set forth in 28 U.S.C. § 1746. 	Id. 	In contrast, complaints that are unverified are
not considered Rule 56 evidence. 	Cooper v. Parker, No. 2:17-CV-00155, 2019 WL
5273967, 	at 	*2 	(W.D. 	Mich. 	Aug. 	29, 	2019) (citations 	omitted), report 	and
recommendation adopted, No. 2:17-CV-155, 2019 WL 4686423 (W.D. Mich. Sept. 26,
2019).
Here, Plaintiff White filed a complaint that included just over three pages of
factual allegations. 	ECF No. 1, PageID.4-7. Those claims are summarized above.
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In addition, he attached some 63 pages of miscellaneous documents, including
medical records, grievances, and kites. 	ECF No. 63-1. 	White’s complaint is
unverified.
In response to Russo’s motion for summary judgment on the merits, White filed
a five-page pleading. 	ECF No. 68. 	This response is also unverified. 	At the end of
the response, White declared as follows: 	“I have prepared this for the courts to
respond to Summary Judgment of D. Russo. 	I’ve sent this in thru [sic] the MDOC
on 	11-25-25. 	Respectfully 	written 	and 	certified 	by 	Marquise 	White.” 	Id.,
PageID.854. 	Title 28, United States Code, Section 1746 requires a verification,
certification or statement, under penalty of perjury, that the statements in the
pleading are true and correct. 	Thus, White’s statement at the end of his complaint
does not qualify as a verification under Section 1746. 	White’s response did not
include any other materials that might qualify for consideration under Fed. R. Civ.
P. 56(c).
Thus, at the first level of analysis, White simply has not provided the Court
with anything that would overcome Russo’s motion for summary judgment. 	“One of
the principal purposes of the summary judgment rule is to isolate and dispose of
factually unsupported claims or defenses.” 	Celotex Corp. v. Catrett, 477 U.S. 317,
323–24 (1986). 	White simply has not shown that his claims are factually supported.
The Court is aware that Plaintiff White is an incarcerated individual who is
proceeding Pro Se and, accordingly, that he is entitled to some leniency with respect
to the technical standards of litigation. 	And the Court is also sympathetic to White’s
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knee injury. 	But White is responding here to a second motion for summary
judgment, as Russo previously filed a motion for summary judgment based on
exhaustion. 	See ECF No. 19 (prior motion for summary judgment); ECF No. 30
(Plaintiff’s response); ECF No. 33 (Defendant’s reply); ECF No. 34 (previous R. & R.);
ECF No. 40 (Order adopting R. & R.) 	In addition, Plaintiff White has filed other
civil cases in this Court. 	See White v. MDOC, W.D. Mich. Case No. 1:21-cv-201;
White v. Chippewa Correctional Facility, et al., W.D. Mich. Case No. 2:23-cv-189.
White is no stranger to civil litigation. 	Thus, as an initial matter, the undersigned
concludes that White has failed to support his claims in a manner that can survive
summary judgment.
Nevertheless, the undersigned provides the following analysis of White’s
substantive claims.
IV. 	Eighth Amendment Deliberate Indifference
White claims that N.P. Russo was deliberately indifferent to his serious knee
injury. 	The Eighth Amendment prohibits the infliction of cruel and unusual
punishment against those convicted of crimes. 	U.S. Const. amend. VIII. 	The
Eighth 	Amendment 	obligates 	prison 	authorities 	to 	provide 	medical 	care 	to
incarcerated individuals, as a failure to provide such care would be inconsistent with
contemporary standards of decency. 	Estelle v. Gamble, 429 U.S. 102, 103-04 (1976).
The Eighth Amendment is violated when a prison official is deliberately indifferent
to the serious medical needs of a prisoner. 	Id. at 104-05; Comstock v. McCrary, 273
F.3d 693, 702 (6th Cir. 2001).
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A claim for the deprivation of adequate medical care has an objective and a
subjective component. 	Farmer v. Brennan, 511 U.S. 825, 834 (1994). 	To satisfy the
objective component, the plaintiff must allege that the medical need at issue is
sufficiently serious. 	Id. 	In other words, the inmate must show that he is
incarcerated under conditions posing a substantial risk of serious harm. 	Id. 	The
objective component of the adequate medical care test is satisfied “[w]here the
seriousness of a prisoner’s need[ ] for medical care is obvious even to a lay person.”
Blackmore v. Kalamazoo Cty., 390 F.3d 890, 899 (6th Cir. 2004). 	If the plaintiff’s
claim, however, is based on “the prison’s failure to treat a condition adequately, or
where the prisoner’s affliction is seemingly minor or non-obvious,” Id. at 898, the
plaintiff must “place verifying medical evidence in the record to establish the
detrimental effect of the delay in medical treatment.” 	Napier v. Madison Cty., 238
F.3d 739, 742 (6th Cir. 2001) (internal quotation marks omitted), abrogation on other
grounds recognized by Lawler as next friend of Lawler v. Hardeman Cty., Tenn., 93
F.4th 919, 927 (6th Cir. 2024).
The subjective component requires an inmate to show that prison officials have
“a sufficiently culpable state of mind in denying medical care.” 	Brown v. Bargery,
207 F.3d 863, 867 (6th Cir. 2000) (citing Farmer, 511 U.S. at 834). 	Deliberate
indifference “entails something more than mere negligence,” Farmer, 511 U.S. at 835,
but can be “satisfied by something less than acts or omissions for the very purpose of
causing harm or with knowledge that harm will result.” 	Id. 	Under Farmer, “the
official must both be aware of facts from which the inference could be drawn that a
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substantial risk of serious harm exists, and he must also draw the inference.” 	Id. at
837. 	The subjective component was recently summarized in Rhinehart v. Scutt, 894
F.3d 721 (6th Cir. 2018). 	The court of appeals stated the following:
A doctor’s errors in medical judgment or other negligent behavior do not
suffice to establish deliberate indifference. 	Instead, the plaintiff must
show that each defendant acted with a mental state “equivalent to
criminal 	recklessness.” 	This 	showing 	requires 	proof 	that 	each
defendant “subjectively perceived facts from which to infer substantial
risk to the prisoner, that he did in fact draw the inference, and that he
then disregarded that risk” by failing to take reasonable measures to
abate it.
A plaintiff may rely on circumstantial evidence to prove subjective
recklessness: A jury is entitled to “conclude that a prison official knew
of a substantial risk from the very fact that the risk was obvious.” And
if a risk is well-documented and circumstances suggest that the official
has been exposed to information so that he must have known of the risk,
the 	evidence 	is 	sufficient 	for 	a 	jury 	to 	find 	that 	the 	official 	had
knowledge.
But the plaintiff also must present enough evidence from which a jury
could conclude that each defendant “so recklessly ignored the risk that
he was deliberately indifferent to it.” 	A doctor is not liable under the
Eighth Amendment if he or she provides reasonable treatment, even if
the outcome of the treatment is insufficient or even harmful. 	A doctor,
after all, is bound by the Hippocratic Oath, not applicable to the jailor,
and the physician’s job is to treat illness, not punish the prisoner.
Accordingly, when a claimant challenges the adequacy of an inmate's
treatment, 	“this 	Court 	is 	deferential 	to 	the judgments 	of 	medical
professionals.” 	That is not to say that a doctor is immune from a
deliberate-indifference 	claim 	simply 	because 	he 	provided 	“some
treatment for the inmates’ medical needs.” But there is a high bar that
a plaintiff must clear to prove an Eighth Amendment medical-needs
claim: The doctor must have “consciously expos[ed] the patient to an
excessive risk of *739 serious harm.”
Id. 738–39 (6th Cir. 2018) (internal citations omitted).
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Not every claim by a prisoner that he has received inadequate medical
treatment states a violation of the Eighth Amendment. 	Estelle, 429 U.S. at 105. 	As
the Supreme Court explained:
[A]n inadvertent failure to provide adequate medical care cannot be said
to constitute an unnecessary and wanton infliction of pain or to be
repugnant to the conscience of mankind. 	Thus, a complaint that a
physician has been negligent in diagnosing or treating a medical
condition does not state a valid claim of medical mistreatment under the
Eighth 	Amendment. 	Medical 	malpractice 	does 	not 	become 	a
constitutional violation merely because the victim is a prisoner. 	In
order to state a cognizable claim, a prisoner must allege acts or
omissions sufficiently harmful to evidence deliberate indifference to
serious medical needs.
Id. at 105-06 (quotations omitted).
Differences in judgment between an inmate and prison medical personnel
regarding the appropriate medical diagnoses or treatment are not enough to state a
deliberate indifference claim. 	Sanderfer v. Nichols, 62 F.3d 151, 154-55 (6th Cir.
1995); Ward v. Smith, No. 95-6666, 1996 WL 627724, at *1 (6th Cir. Oct. 29, 1996).
This is so even if the misdiagnosis results in an inadequate course of treatment and
considerable suffering. 	Gabehart v. Chapleau, No. 96-5050, 1997 WL 160322, at *2
(6th Cir. Apr. 4, 1997).
The Sixth Circuit distinguishes “between cases where the complaint alleges a
complete denial of medical care and those cases where the claim is that a prisoner
received inadequate medical treatment.” 	Westlake v. Lucas, 537 F.2d 857, 860 n.5
(6th Cir. 1976). 	If “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 which sound in state tort
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law.” 	Id.; Rouster v. Saginaw Cty., 749 F.3d 437, 448 (6th Cir. 2014); Perez v.
Oakland Cty., 466 F.3d 416, 434 (6th Cir. 2006); Kellerman v. Simpson, 258 F. App’x
720, 727 (6th Cir. 2007); McFarland v. Austin, 196 F. App’x 410 (6th Cir. 2006);
Edmonds v. Horton, 113 F. App’x 62, 65 (6th Cir. 2004); Brock v. Crall, 8 F. App’x
439, 440 (6th Cir. 2001); Berryman v. Rieger, 150 F.3d 561, 566 (6th Cir. 1998).
“Where the claimant received treatment for his condition, as here, he must show that
his treatment was ‘so woefully inadequate as to amount to no treatment at all.’”
Mitchell 553 F. App’x at 605 (quoting Alspaugh v. McConnell, 643 F.3d 162, 169 (6th
Cir. 2011)). 	He must demonstrate that the care he received was “so grossly
incompetent, inadequate, or excessive as to shock the conscience or to be intolerable
to fundamental fairness.” Miller v. Calhoun Cty., 408 F.3d 803, 819 (6th Cir. 2005)
(quoting Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989)).
Here, White asserts that the care he received from N.P. Russo was inadequate
for the severity of his knee injury. 	Defendant Russo argues that: (1) Plaintiff has
placed no verifying medical evidence in the record which establishes a detrimental
effect of the delayed surgery; and (2) the medical records show that Plaintiff
received competent and adequate medical attention for his knee injury. 	ECF No. 67,
PageID.433. 	In response, Plaintiff asserts that Defendant Russo failed to order an
MRI for his knee injury and instead let Plaintiff walk on the torn meniscus for
months. 	ECF No. 68, PageID.852. 	Plaintiff further argues that the medical
records provided include the incorrect injury/incident reports. 	Id., PageID.851.
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White’s medical records indicate that he saw N.P. Russo for left knee pain
treatment on several occasions. 	On July 15, 2022, N.P. Russo entered a physical
therapy request for White’s continued left knee pain and instability. 	ECF No. 67-1,
PageID. 482. 	On July 27, 2022, N.P. Russo noted that she and White discussed quad
exercises and ace bandages while walking to treat White’s reported left knee pain.
Id., PageID.481. 	On, December 22, 2022. White’s medical records, shown below,
document that MRI results indicated a meniscus tear:
Id., PageID.436.
Id., PageID.440.
Furthermore, between July and December 2022, White’s medical records
indicate that he was seen by several other providers about ongoing knee pain. 	Id.,
PageID. 465-77. 	On March 16, 2023, N.P. Russo entered a note on White’s medical
record, shown below, that orthopedic surgery was approved and scheduled for March
21, 2023.
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Id., PageID.838. 	Then, on April 3, 2023, N.P. Russo scheduled a post-op follow-up
with White. 	Id., PageID.833.
Regarding the objective prong, Plaintiff’s claim is that prison medical staff
failed to adequately treat his knee injury. 	Thus, as stated above, Plaintiff must
“place verifying medical evidence in the record to establish the detrimental effect of
the delay in medical treatment.” 	Napier v. Madison Cty., 238 F.3d 739, 742 (6th Cir.
2001) (internal quotation marks omitted). 	Plaintiff has not pointed to any such
evidence. 1 	Accordingly, 	he 	fails 	to 	meet 	the 	objective 	prong 	of 	a 	deliberate
indifference claim.
Even if White could establish the objective prong, in the opinion of the
undersigned, N.P. Russo is entitled to summary judgment on the subjective prong.
White does not dispute that he received care from N.P. Russo for his knee injury.
Rather, he disagrees with her course of treatment and surgery timeline. 	White has
not established that N.P. Russo’s treatment was “so woefully inadequate as to amount
1 	The undersigned acknowledges that White’s unverified complaint asserts that
“my Doctor at [Sault Ste. Marie hospital] told me they had extra things they had to
fix with my knee cap because it was way to [sic] long to get me help.” 	ECF No. 1,
PageID.6.
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to no treatment at all.” 	Mitchell 553 F. App’x at 605. 	The medical records before
the Court establish a regular pattern of medical care for Plaintiff’s torn meniscus that
ultimately resulted in surgery for the injury. 	Accordingly, White has failed to
establish the subjective prong of an Eighth Amendment deliberate indifference claim
against N.P. Russo.
VI. 	Recommendation
It is respectfully recommended that the Court GRANT Defendant Russo’s
motion for summary judgment and dismiss Plaintiff’s case because White has failed
to support his claims in a manner that can survive summary judgment.
Furthermore, in the opinion of the undersigned, Defendant Russo is entitled to
summary judgment because there are no genuine issues of material fact regarding
Plaintiff’s deliberate indifference claim.
Dated: 	June 17, 2026 	/s/ `ttÜàxÇ ixÜÅttà
MAARTEN VERMAAT
U.S. MAGISTRATE JUDGE
NOTICE TO PARTIES
Objections to this Report and Recommendation must be served on opposing parties
and filed with the Clerk of the Court within fourteen (14) days of receipt of this Report
and Recommendation. 	28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b); W.D. Mich.
LCivR 72.3(b). 	Failure to file timely objections constitutes a waiver of any further
right to appeal. 	United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 	See also
Thomas v. Arn, 474 U.S. 140 (1985).
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