Opinion
Case No. 1:12-cv-912
04-14-2014
ATROPIN PALMER, Plaintiff, v. OFFICER BURKE, et al., Defendants.
Barrett, J.
Litkovitz, M.J.
REPORT AND
RECOMMENDATION
This matter is before the Court on defendants Officer Burke and Officer Barney's motion for summary judgment (Doc. 22), plaintiff's responses thereto (Docs. 27, 35), and defendants' reply memorandum. (Doc. 36). This matter is also before the Court on: (1) plaintiff's motion to amend his complaint (Doc. 29), defendants' response in opposition (Doc. 28), and plaintiff's reply (Doc. 32); and (2) plaintiff's motion for a Court Order allowing him greater access to the law library at the Southern Ohio Correctional Facility (SOCF) (Doc. 30) and defendants' response in opposition (Doc. 31).
I. Background
Plaintiff Atropin Palmer, an SOCF inmate, filed this pro se case on December 13, 2012, pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights. (Doc. 3). Plaintiff alleges that at approximately 9:20 a.m. on July 20, 2012, SOCF Correctional Officer Burke opened his cell door while his arm was resting in the bars, causing his elbow to become "pinched" in between the door and doorway. (Doc. 3 at 5-6; Doc. 3, Ex. 1, Palmer Affidavit). Plaintiff alleges that Officer Burke intentionally caused the injury and violated SOCF policy by opening the cell door. (Id.). Plaintiff further alleges that he informed SOCF Correctional Officer Barney of his injury and requested medical attention, but was made to wait nine hours before receiving medical treatment. (Doc. 3 at 5). Plaintiff alleges he suffered extreme pain and swelling to the elbow as a result of the incident and was treated with Tylenol; an ice pack was ordered but never received by him. (Id.). Plaintiff attached a copy of the July 20, 2012 "Temporary Infirmary Pass" to his complaint which shows that he was treated with an ice pack for his injury. See Doc. 3, Ex. 1 at 2, Temporary Infirmary Pass. Though plaintiff does not specify precisely the nature of his claims, the Court construes plaintiff's complaint as raising two distinct Eighth Amendment claims: a claim of excessive use of force against Officer Burke and a claim of deliberate indifference to serious medical needs against Officer Barney.
Plaintiff's original complaint named Officers Burke and Barney, Nurse Wamsley, and the Deputy Warden of Operations as defendants. (Doc. 3). The District Judge subsequently dismissed plaintiff's claims against Nurse Wamsley and the Deputy Warden pursuant to the Court's sua sponte review, finding that plaintiff's complaint failed to state a claim for relief against these inviduals. (Doc. 6). A calendar order was subsequently entered, setting August 22, 2013, as the deadline for completing discovery and setting September 22, 2013, as the deadline for filing dispositive motions. (Doc. 12). Defendants filed motions for extensions of time and the discovery deadline was extended to September 23, 2013, and the dispositive motions deadline was extended to November 20, 2013. (Docs. 19, 21).
On November 20, 2013, Officers Burke and Barney filed a joint motion for summary judgment. (Doc. 22). Plaintiff subsequently filed an amended complaint (Doc. 24), with no accompanying motion seeking leave to amend. Officers Burke and Barney oppose allowing plaintiff to amend his complaint at this juncture due to undue delay and prejudice. (Doc. 28). Plaintiff subsequently filed a motion seeking leave to amend his complaint to substitute Officer B. Dailey as a defendant in place of Officer Burke, asserting that Officer Burke was mistakenly named. (Doc. 29). Plaintiff also filed an objection to defendants' opposition to the proposed amendment wherein he raises various arguments as to why the amendment should be permitted. (Doc. 32).
Plaintiff also filed a motion seeking a Court Order requiring SOCF to grant him greater access to the law library to prepare his opposition to defendants' summary judgment motion. (Doc. 30). Defendants oppose plaintiff's motion, asserting that the four hours of weekly library time for an inmate passes constitutional muster. (Doc. 31).
The Court will first address plaintiff's motion for an order regarding his law library access. The Court will then address plaintiff's motion to amend his complaint as this determination will impact the resolution of the defendants' pending summary judgment motion.
II. Motion for Injunctive Relief (Doc. 30).
Plaintiff seeks a Court Order requiring SOCF to grant him more than four hours a week in the law library to research and respond to defendants' summary judgment motion. (Doc. 30). Plaintiff filed his motion on December 23, 2013. On December 12, 2013, however, plaintiff had already filed a response to defendants' motion, conceding that defendants' motion should be granted with respect to Officer Burke as he was improperly named. (Doc. 27). Further, plaintiff requested and was granted an extension of time until March 25, 2014, by which to file his opposition to the summary judgment motion. (Docs. 33, 34). Plaintiff timely filed his response, addressing the substantive issues raised in defendants' summary judgment motion on March 26, 2013. (Doc. 35). In light of the extension previously granted to plaintiff and the filing of his opposition to defendants' summary judgment motion, his motion for a Court Order permitting him greater access to the law library at SOCF is DENIED as moot.
III. Motion to Amend (Doc. 24)
Plaintiff's motion for leave to file an amended complaint provides as follows:
1. The plaintiff Palmer, in [ ]his original complaint named Officer Mr. Burk as defendant his complaint.(Doc. 29 at 2). Plaintiff has submitted a copy of the proposed amended complaint which differs from his original complaint only in that he has substituted Officer Dailey's name in the place of Officer Burke's. See Doc. 3; February 12, 2014 docket notation.
2. Since the filing of the complaint the plaintiff Palmer, has discovery [sic] Mr. Burk in which you refer to Offi[c]er Burk are amended to reflect the identity and action of Officer B. Dailey.
3. This Court should grant leave to freely amend a complaint. Foman v. Davis, 371 U.S. 178, 182 (1962).
4. Palmer, plaintiff's pursuant to Fed. R. Civ. Proc. 15(c)(3) "including an amendment to correct a misnomer or misdescription of a defendant, shall "relate back" to the date of the original pleading. Marlow v. Fisher Body, 489 F.2d 1057 (1973).
For the foregoing reason this Court grant this motion be brought against Officer Mr. B. Dailey the correctional officer at Southern Ohio Correctional Facility, who was acting under the color of Federal Law and State Law, in violation of the United States Constitution Amendment 8th and 14th against excessive use of force and the protection of clause of procedural rights.
Defendants assert that plaintiff should not be permitted to amend his complaint as discovery is closed and the deadline for filing dispositive motions has passed. Defendants also assert that plaintiff was dilatory in seeking to amend his complaint and had ample opportunity to discover the identity of Officer Dailey, but failed to propound any discovery requests on defendants during the discovery phase of litigation. Defendants contend that plaintiff only learned that Officer Dailey was the proper defendant because they attached the shift roster for the day of the incident to their summary judgment motion. Further, defendants assert they will be prejudiced if the amendment is granted as they will have to conduct further research and investigation, despite having already filed a motion for summary judgment. As plaintiff has offered no justification for his failure to learn of Officer Dailey's involvement in his alleged injury defendants request that plaintiff's motion to amend be denied. (Doc. 28).
In his objection to defendants' opposition, which this Court treats as a reply memorandum, plaintiff maintains that it was defendants' duty to "turn over the information that [Officer Burke] was not working" during the relevant time. (Doc. 32 at 2). Plaintiff argues that defendants should have given him this information so that he could have amended his complaint earlier, and that defendants failed to do so in an attempt to cover up their wrongdoing. (Id.). Plaintiff further maintains that defendants would not be prejudiced by permitting the amendment because the discovery and investigation that would be required are all "normal procedure. . . ." (Id. at 3).
The granting or denial of a motion to amend pursuant to Fed. R. Civ. P. 15(a) is within the discretion of the trial court. Leave to amend a complaint should be liberally granted. Foman v. Davis, 371 U.S. 178 (1962). The Court should consider factors such as undue delay, bad faith or dilatory motive on the part of the movant, the repeated failure to cure deficiencies by amendments previously allowed, lack of notice to the opposing party, undue prejudice to the opposing party by virtue of allowance of the amendment, and futility of amendment. Id. See also Brumbalough v. Camelot Care Centers, Inc., 427 F.3d 996, 1001 (6th Cir. 2005) (citing Coe v. Bell, 161 F.3d 320, 341-42 (6th Cir. 1998); Brooks v. Celeste, 39 F.3d 125, 130 (6th Cir. 1994)). "Ordinarily, delay alone, does not justify denial of leave to amend." Morse v. McWhorter, 290 F.3d 795, 800 (6th Cir. 2002). "At some point, however, 'delay will become 'undue,' placing an unwarranted burden on the court, or will become 'prejudicial,' placing an unfair burden on the opposing party." Id. (quoting Adams v. Gould, 739 F.2d 858, 863 (3d Cir. 1984)).
The Court finds that plaintiff's motion to amend his complaint should be denied because his unjustified delay in seeking to amend his complaint at this late stage of the litigation would unfairly prejudice defendants. Plaintiff has put forth no explanation for his failure to seek an amendment earlier in these proceedings. Rather, he alleges it was defendants' burden to identify the officer on duty on the date of plaintiff's alleged injury. See Doc. 32 at 2. plaintiff's attempt to blame defendants for his delay is misplaced. It is plaintiff's duty - not defendants' - to prosecute his lawsuit. plaintiff's pro se status does not relieve him of this duty or require defendants to assist plaintiff in the prosecution of his claims against them. Plaintiff has failed to refute defendants' assertion that he did no discovery in this case during the six and one-half month discovery period. Had plaintiff issued even generic discovery requests to defendants, it is likely he would have discovered the identity of the proper defendant and he could have sought to amend his complaint before a dispositive motion was filed. As plaintiff offers no explanation or justification for waiting until after discovery was closed and after defendants filed their summary judgment motion to seek leave to amend his complaint, his motion to amend should be denied. See Wade v. Knoxville Util. Bd., 259 F.3d 452, 459 (6th Cir. 2001) (when seeking to amend at a late stage in litigation, the movant has "an increased burden to show justification for failing to move earlier.").
Further, permitting amendment at this late stage unfairly prejudices defendants. Defendants have filed a summary judgment motion and have supported their arguments with evidence, including affidavits from defendants, the nurse who treated plaintiff, and the physician who reviewed plaintiff's x-rays, and other medical records. See Doc. 22. Allowing an amendment now would require the Court to re-open discovery and further extend the dispositive motion deadline. In the absence of any justification whatsoever from plaintiff for his failure to conduct any discovery which would have identified the proper defendants, allowing plaintiff to amend his complaint at this late date would prejudice defendants by requiring them to expend additional resources on discovery and dispositive motions, further prolonging the resolution of this case. See Phelps v. McClellan, 30 F.3d 658, 662-63 (6th Cir. 1994) (citing Tokio Marine & Fire Ins. Co. v. Employers Ins. of Wausau, 786 F.2d 101, 103 (2d Cir. 1986)).
Given the lack of any justification for plaintiff's delay in seeking an amendment and the prejudice defendants would face were amendment permitted the undersigned recommends that plaintiff's motion to amend his complaint (Doc. 29) be DENIED. The Court now turns to defendants' motion for summary judgment.
IV. Motion for Summary Judgment (Doc. 22)
Defendants move for summary judgment on plaintiff's excessive use of force claim against Officer Burke as the evidence establishes that he was not at work at SOCF when plaintiff was injured. Defendants also seek summary judgment on plaintiff's deliberate indifference to serious medical needs claim, asserting that plaintiff timely received medical care and, further, that plaintiff's minor injury is insufficient to constitute an Eighth Amendment violation. (Doc. 22).
The Court recognizes that Officer Burke's name is misspelled on the docket of the Court and in the parties' pleadings and briefings, and that his surname is "Burk." See Doc. 22 at 1, n.l. However, for clarity's sake, the Court will continue to refer to him as Officer Burke throughout this opinion.
Fed. R. Civ. P. 56 allows summary judgment to secure a just and efficient determination of an action. The court may only grant summary judgment as a matter of law when the moving party has identified, as its basis for the motion, an absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
The party opposing a properly supported motion for summary judgment "may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986) (quoting First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253 (1968)). The evidence of the nonmovant is to be believed and all justifiable inferences are to be drawn in his favor. Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158 (1970)). However, a district court need not view the facts in the light most favorable to the nonmoving party if that party's version of events is "blatantly contradicted by the record, so that no reasonable jury could believe it." Scott v. Harris, 550 U.S. 372, 380 (2007).
When a defendant has identified the shortfall in a plaintiff's case, the plaintiff must come forward with evidence establishing a material issue of fact for resolution by the fact-finder. Anderson, 477 U.S. at 252. The Court is not obligated to "comb through the record to ascertain whether a genuine issue of material fact exists." Cacevic v. City of Hazel Park, 226 F.3d 483, 492 (6th Cir. 2000) (citing Guarino v. Brookfield Twp. Trs., 980 F.2d 399, 407, 410 (6th Cir. 1992)).
The court is not to weigh the evidence and determine the truth of the matter but is to decide whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. There is no genuine issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. Id. (citing Cities Serv., 391 U.S. at 288-289). If the evidence is merely colorable, Dombrowski v. Eastland, 387 U.S. 82, 84 (1967), or is not significantly probative, Cities Serv., 391 U.S. at 290, judgment may be granted. Anderson, 477 U.S. at 249.
A. Excessive Force Claim
In his December 12, 2013 response to defendants' summary judgment motion, plaintiff concedes that summary judgment should be granted in favor of Officer Burke as the undisputed evidence submitted by defendants establishes that Officer Burke was not on duty at SOCF at the time plaintiff was injured. (Doc. 27). This evidence consists of Officer Burke's affidavit and the "1st Shift Assignment Roster" and "2nd Shift Assignment Roster" detailing the work assignments of SOCF Correctional Officers on July 20, 2012. See Doc. 22, Exhs. 1, 2. Officer Burke attests that he was working second shift on July 20, 2012, from 2 p.m. until 10 p.m. and was stationed in plaintiff's cell block. (Doc. 22, Ex. 1 at ¶ 2, Burke Affidavit). Officer Burke further attests that he was not on duty on first shift at 9:20 a.m. on July 20, 2012, the time plaintiff alleges he was injured. (Id. at ¶ 3). The Shift Rosters confirm Officer Burke's representations and shows that Officer Dailey was the officer on duty assigned to plaintiff's cell block at the time of the incident giving rise to plaintiff's claims. See Doc. 22, Ex. 2. In light of the above uncontroverted evidence establishing that Officer Burke was not on duty at the time plaintiff's elbow was injured and plaintiff's accordant concession that summary judgment should be granted in favor of Officer Burke, the undersigned recommends that defendants' motion for summary judgment on plaintiff's excessive use of force claim against Officer Burke be GRANTED.
B. Deliberate Indifference to Medical Needs Claim
In order to establish a claim for relief under 42 U.S.C. § 1983 for denial of medical care, a prisoner must present evidence showing "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). A prisoner who is allowed to suffer needlessly through a denial of medical care when relief is available has a cause of action under the Eighth Amendment against an individual whose deliberate indifference caused the suffering. Plaintiff must present evidence showing that prison officials have denied his reasonable requests for medical care when such need is obvious and when he is susceptible to undue suffering or threat of tangible residual injury. Byrd v. Wilson, 701 F.2d 592, 594 (6th Cir. 1983); Westlake v. Lucas, 537 F.2d 857, 860 (6th Cir. 1976); see also Estelle, 429 U.S. at 106. Where medical assistance has been administered, such treatment must be so "woefully inadequate as to amount to no treatment at all" in order to give rise to a cause of action under § 1983. Westlake, 537 F.2d at 860-61 n.5.
A prison official may be held liable under the Eighth Amendment for denying humane conditions of confinement, including proper medical care, only if "he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Farmer v. Brennan, 511 U.S. 825, 847 (1994). Such claims have both a subjective and objective component. To satisfy the objective component, plaintiff must show "that the alleged deprivation [of care] is 'sufficiently serious.'" Brown v. Bargery, 207 F.3d 863, 867 (6th Cir. 2000) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). To satisfy the subjective component, plaintiff must establish that the prison official "knows of and disregards an excessive risk to inmate health or safety. . . ." Farmer, 511 U.S. at 839. This requires a showing that the official was cognizant of facts from which he or she could conclude that there was a substantial risk of harm to plaintiff, and he or she must actually draw that conclusion. Id. Where the prison official reasonably responds to the risk, he or she will not be held liable for deliberate indifference to a prisoner's serious medical needs "even if the harm ultimately was not averted." Id. at 844.
Here, plaintiff claims that Officer Barney was deliberately indifferent to his serious medical needs by failing to ensure that he received medical care in a timely fashion. plaintiff's complaint includes allegations that he "informed Officer Barney [about his injury] and asked to see the nur[se] because [his] arm and elbow were [swelling and] bruised and [he] was in extreme pain." (Doc. 3 at 5). The only evidence supporting plaintiff's allegations is his affidavit, which was submitted in conjunction with his complaint. plaintiff's affidavit provides simply that he did not receive medical treatment until nine hours after his injury, at which point the nurse who treated him declared that there was swelling to his elbow. (Doc. 3, Ex. 1, Palmer Affidavit).
"[A]n inmate who complains that delay in medical treatment rose to a constitutional violation must place verifying medical evidence in the record to establish the detrimental effect of the delay in medical treatment to succeed." Napier v. Madison Cty., Ky., 238 F.3d 739, 742 (6th Cir. 2001) (internal quotations and citations omitted). Here, plaintiff has not presented any medical evidence verifying that the nine-hour delay between the time his elbow was injured and the time he received medical treatment had a detrimental effect on his injury. In contrast, defendants have submitted the Medical Examination Report (MER) completed by Nurse Ramsley following her examination of plaintiff; Nurse Ramsley's affidavit; the affidavit of Douglas Haas, M.D., the radiologist who examined the July 23, 2012 x-ray of plaintiff's elbow; the x-ray report completed by Dr. Haas; and plaintiff's medical progress notes from the relevant period. See Doc. 22, Exhs. 4, 5, 6, 7, 9. The evidence submitted by defendants reveals that there was no detrimental effect resulting from the nine hours plaintiff waited for medical treatment.
The MER includes objective physical findings of "mild swelling to [plaintiff's right] elbow inner arm area. [Full range of motion]. [No] open areas noted. [No] discoloration noted." (Doc. 22, Ex. 4). Nurse Ramsley treated plaintiff with Tylenol and an ice pack and advised him to notify medical if there was a change in his condition. (Id.). Nurse Ramsley's affidavit verifies the contents of the MER and includes her statements that at the time of his examination, plaintiff reported experiencing pain at a two to three level on a 10 point scale. (Doc. 22, Ex. 5, ¶5). Nurse Ramsley further states that her physical examination of plaintiff revealed somewhat elevated blood pressure and pulse rate, but nothing "way out of range." (Id., ¶6). Nurse Ramsley attests that she recommended an x-ray because while plaintiff exhibited full range of motion during the examination, she could not rule out a possible broken bone based on this alone. (Id., ¶7). Nurse Ramsley states that based on her observations and experiences, plaintiff's injury was not an emergency. (Id., ¶ 10). An x-ray was taken of plaintiff's right elbow on July 23, 2012, and the record contains the following narrative explanation from Dr. Haas: "No elbow joint effusion. The elbow joint space is intact. Articular surfaces are smooth. There is a smooth hypertrophy in the olecranon process posteriorly although no prominent spur is seen at the triceps insertion. No acute fracture or dislocation." (Doc. 22, Ex. 7). The x-ray report includes a checked notation providing that the "test result is essentially within normal limits. No Advanced Level Provider follow-up is required." (Id.). Dr. Haas clarifies the report in his affidavit and attests that plaintiff's x-ray did not show any damage to the elbow resulting from the impact. (Doc. 22, Ex. 6, ¶ 4-5). The medical progress notes include Nurse Wamsley's notation from July 20, 2012, at 4:50 p.m. that plaintiff was "[s]een for injury" with a reference to the MER. (Doc. 22, Ex. 9). Subsequent follow-up notes from July 27, 2012 provide: "Patient was sent to infirmary for report of elbow being shut in the gate on 7/20/12. Inmate stated that he did not know why he was sent to the infirmary. He stated he did not want to be seen. Patient was released to block." (Id.).
The undisputed evidence submitted by defendants establishes that plaintiff's elbow injury was minor. At most, plaintiff had some mild swelling to his elbow which was treated with ice and Tylenol. An x-ray of plaintiff's elbow taken three days after he was injured was normal and plaintiff refused follow-up treatment a week post-injury. Plaintiff does not refute this evidence nor has he put forth any evidence that establishes that his injury was serious or verifies that the nine-hour delay in receiving medical treatment had any detrimental effect. Because plaintiff has not placed any such verifying medical evidence in the record, he fails to create a genuine issue of fact on the objective component of his Eighth Amendment deliberate indifference to medical needs claim. Napier, 238 F.3d at 742. See also Santiago v. Ringle, 734 F.3d 585, 590-91 (6th Cir. 2013) (affirming District Court's holding that defendants were entitled to summary judgment on plaintiff's deliberate indifference to medical needs claim where plaintiff's injury was minor despite claims of severe pain and where plaintiff failed to proffer evidence showing that delay in treatment had a detrimental effect); Burgess v. Fischer, 735 F.3d 462, 477 (6th Cir. 2013) (claims of pain, absent verifying medical evidence showing that delay in treatment caused serious medical injury, are insufficient to establish a deliberate indifference to medical needs claim). As plaintiff cannot meet the objective component of his Eighth Amendment claim, defendants are entitled to summary judgment.
In Blackmore v. Kalamazoo Cty., the Sixth Circuit clarified that Napier's, requirement of verifying medical evidence "does not apply to medical care claims where facts show an obvious need for medical care that laymen would readily discern as requiring prompt medical attention by competent health care providers." 390 F.3d 890, 899 (6th Cir. 2004). Only "where the prisoner's affliction is seemingly minor or non-obvious" is medical proof "necessary to assess whether the delay [in receiving treatment] caused a serious medical injury." Id. (citing Napier, 238 F.3d at 742). The medical evidence here shows that plaintiff sustained only mild swelling to his elbow and required minimal treatment. Thus, while a prisoner's failure to provide verifying medical evidence showing the detrimental effect of delayed treatment will not be fatal to Eighth Amendment deliberate indifference to medical needs claims in every situation, the undisputed medical evidence shows that, here, plaintiff's injury was minor. Consequently, Napier applies and plaintiff's claim fails in the absence of such verifying evidence.
Even if the Court were to find that plaintiff established the objective component of his Eighth Amendment claim, defendants are nevertheless entitled to summary judgment as plaintiff has failed to satisfy the subjective component of the claim. As stated above, to satisfy the subjective component of his deliberate indifference to medical needs claim, plaintiff must put forth evidence that Officer Barney actually knew of a serious risk to his health and consciously disregarded that risk. Farmer, 511 U.S. at 839, 844; Loggins v. Franklin Cty., Ohio, 218 F. App'x 466, 472 (6th Cir. 2007). Plaintiff presents no evidence that establishes Officer Barney was aware that plaintiff's elbow injury posed a serious risk to his health (or that the injury itself was a serious health risk) or that Officer Barney disregarded any such risk. Accordingly, plaintiff cannot establish the subjective component of his deliberate indifference to medical needs claim.
Plaintiff argues that Officer Barney ignored his requests for medical treatment and that his need for medical treatment was obvious given plaintiff's pleas to go to the infirmary. (Doc. 35 at 6). Plaintiff does not support his arguments with any evidence but cites only to the allegations of his complaint. When facing a summary judgment motion:
an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must - by affidavits or as otherwise provided in this rule - set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party.Fed. R. Civ. P. 56(e)(2). The only evidence in the record regarding Officer Barney's knowledge or state of mind is Officer Barney's affidavit, which provides that he has no recollection of plaintiff being injured, being in pain, requesting to go to the infirmary, or denying said requests. See Doc. 22, Ex. 10, Barney Affidavit. As plaintiff has not put forth any evidence refuting Officer Barney's affidavit or otherwise establishing that Officer Barney had the requisite culpable state of mind necessary to establish the subjective component of his Eighth Amendment claim, plaintiff has failed to create a genuine issue of material fact to defeat defendants' motion for summary judgment. Further, as there is no evidence in the record from which the Court can reasonably infer that there was an excessive risk to plaintiff's health or safety, it is implausible that Officer Barney disregarded any such risk. Plaintiff may not rest on the allegations of his complaint, but must present evidence establishing specific facts showing that there is a genuine issue of material fact such that summary judgment is inappropriate. Consequently, defendants are entitled to summary judgment on plaintiff's Eighth Amendment deliberate indifference to serious medical needs claim.
In light of the determination that defendants are entitled to summary judgment as plaintiff has failed to establish his Eighth Amendment deliberate indifference to serious medical needs claim, the Court declines to address defendants' qualified immunity argument.
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V. Conclusion
For the above-stated reasons, plaintiff's motion for a Court Order (Doc. 30) is DENIED as moot. Further, the Court hereby RECOMMENDS that:
1. plaintiff's motion to amend his complaint (Doc. 29) be DENIED;
2. Defendants' motion for summary judgment (Doc. 22) be GRANTED;
3. The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing reasons an appeal of any Order adopting this Report and Recommendation would not be taken in good faith. See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997); and
4. This case be DISMISSED on the docket of the Court.
______________________
Karen L. Litkovitz
United States Magistrate Judge
ATROPIN PALMER, Plaintiff,
vs. OFFICER BURKE, et al., Defendants.
Case No. 1:12-cv-912
Barrett, J.
Litkovitz, M.J.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations. This period may be extended further by the Court on timely motion for an extension. Such objections shall specify the portions of the Report objected to and shall be accompanied by a memorandum of law in support of the objections. If the Report and Recommendation is based in whole or in part upon matters occurring on the record at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or such portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may respond to another party's objections WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
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