William Lane v. Wexford Health Sources
510 F. App'x 385
6th Cir.
2013
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Docket

William L. LANE, Plaintiff-Appellant, v. WEXFORD HEALTH SOURCES (CONTREATOR); Vanessa Sawyer, Health Care Administrator; Pamila Redden, Defendants-Appellees.

No. 11-3552

United States Court of Appeals, Sixth Circuit.

Jan. 7, 2013.

506 Fed. Appx. 385

. In this case, the district court noted at Porter‘s sentencing hearing that the undercover agents suggested that the robbery would involve approximately thirty kilograms of cocaine and that “[Porter] bought into that quantity . . . [A]s far as the intent of [Porter], it wаs based on what the agent said, and the agent said that 30 was the number.” The district court reasoned that “it‘s after the disclosure of 30 that [Porter] agreed to get involved in this transaсtion.”

Porter argues that the undercover agents committed “sentencing entrapment” or “sentencing factor manipulation” when they indicated to him that thirty kilograms of cоcaine would be involved in the robbery. We have declined to recognize the defenses of sentencing entrapment or sentence manipulation in other cаses and do so again here. See ; (collecting cases). As Porter does not challenge his personal responsibility for the conduct leading to his conviction, and his asserted defenses are unavailable to him here, we affirm the district court‘s application of the § 2D1.1(c)(3) enhancement.

III.

For the foregoing reasons, we affirm McGee and Porter‘s convictions and sentences.

Before: MERRITT, MARTIN, and GILMAN, Circuit Judges.

PER CURIAM.

William L. Lane, a pro se Ohio prisoner, appeals the dismissal of ‍​​‌‌‌‌​​​​​‌​‌‌​​‌‌‌‌‌​‌‌‌‌‌​‌​‌‌​​‌​​​​​‌​​‌​‌‌‍two defendants from his civil rights action filed pursuant to 42 U.S.C. § 1983. Lane has moved for leave to proceed in forma pauperis on appeal.

Seeking monetary and injunctive relief, Lane sued Wexford Health Sources (Wexford), a company providing services to Noble Correctional Institution prisoners; Pamela (spelled “Pamila” by the plaintiff) Redden, a physician employed by Wexford; and Vanessa Sawyer, a Health Care Administrator at the prison. Lane alleged that he is disabled from arthritis in his left leg, a previous gun shot wound to that leg, and a discrepancy between the length оf his legs. He claims that: (1) Redden exhibited deliberate indifference to his disabilities by failing to provide him with a low-level dorm accommodation and, as a result, he injured himself on December 31, 2009, and again on February 18, 2010, while moving to another floor; (2) unspecified medical staff told him to throw out his old shoes, which contained a heel lift, because he wаs going to get a new pair; (3) unspecified medical staff denied him medical care for over two weeks after his injuries on February 18, 2010; and (4) Sawyer failed to intervene, desрite knowing of the problems he was having with medical staff.

Wexford and Redden (collectively the Wexford defendants) moved for summary judgment. A magistrate judge recommended granting the motion. Lane objected and moved to subpoena his medical records. The magistrate judge granted Lane additional time to review his medical records and to file supplemental objections, but denied his request for a subpoena. Thereafter, Lane filed supplemental objections, along with various motions for additionаl relief. The district court adopted the magistrate judge‘s recommendation and granted summary judgment for the Wexford defendants. The district court denied Lane‘s various motions fоr relief. Lane filed a notice of appeal.

Sawyer then successfully moved for summary judgment. Lane did not appeal the district court order dismissing Sawyer as a defеndant or the district court‘s final judgment terminating the case.

On appeal, Lane challenges the dismissals of all three defendants and argues that the dismissals were based on аn incomplete record. However, Lane‘s notice of appeal was premature, ‍​​‌‌‌‌​​​​​‌​‌‌​​‌‌‌‌‌​‌‌‌‌‌​‌​‌‌​​‌​​​​​‌​​‌​‌‌‍given that the order he appealed disposed of fewer thаn all the parties and claims. See Fed.R.Civ.P. 54(b). While the final judgment vested us with jurisdiction to hear the appeal with respect to the Wexford defendants, see , the notice of appeal did not do so with respect to Sawyer because the allegations against Sawyer had not been dismissed when Lane filed his notice of appeal. See id. To challengе the dismissal of Sawyer, Lane “would have had to file a new notice of appeal after [Sawyer] was dismissed, specifying that [he] appealed from the final judgment in thе action.” Id. He did not do so. Thus, only Lane‘s challenges to the dismissal of the Wexford defendants and to the completeness of the record are properly befоre us.

We review the district court‘s decision de novo. .

The district court properly entered summary judgment in favor of the Wexford defendants. Although “a private entity that contracts to perform traditional state functions mаy be sued pursuant to § 1983,” a § 1983 claim cannot be based solely on a ‍​​‌‌‌‌​​​​​‌​‌‌​​‌‌‌‌‌​‌‌‌‌‌​‌​‌‌​​‌​​​​​‌​​‌​‌‌‍theory of respondeat superior. . Rather, an entity may be liable under § 1983 only if its official policies or customs resulted in injury to the plaintiff. Id. Lаne sued Wexford and alleged only that its medical staff inadequately treated his medical conditions. Such allegations do not state a § 1983 claim. Id.

The district court also properly granted summary judgment in favor of Redden. To establish an Eighth Amendment claim regarding medical treatment, a prisoner must demonstrate that the defendant acted, or failed tо act, with “deliberate indifference to serious medical needs.” (quoting ). That standard requires a state of mind that evinces “deliberateness tantamount to intent to punish.” . “[A]n official‘s failure to alleviate a significant risk that he should have perceived but did not” is not an Eighth Amendment violation. .

Lane‘s chief complaint against Redden is that she did not grant his requеsts for a low-level dorm accommodation prior to his injuries in December 2009 and February 2010. Nothing in the record, however, suggests that Redden acted with the requisite intent required tо support a claim of deliberate indifference. Lane was transferred to the Noble Correctional Institution in November 2009. He was seen at a Chronic Care Clinic on November 21, 2009, at which time it was reported that he “ambulates well.” Further, Lane was told to “exercise” as part of his Chronic Care Clinic treatment plan. Redden saw Lane on November 27, 2009. ‍​​‌‌‌‌​​​​​‌​‌‌​​‌‌‌‌‌​‌‌‌‌‌​‌​‌‌​​‌​​​​​‌​​‌​‌‌‍Contrary to his allegations of deliberate indifference, Redden changed his medication on that date, at Lane‘s request, to treat his complaints оf leg pain. Lane was seen by a podiatrist on December 19, 2009. The podiatrist prescribed him a 5/8-inch shoe lift, noting that Lane had a temporary shoe lift at the time. Nothing in the podiatrist‘s notes from that date indicate that Lane‘s mobility should be limited. Furthermore, a March 9, 2010, entry in Lane‘s medical records recommends that Lane “try to walk.” These records suggest an attempt by medical staff, including Redden, to keep Lane mobile. They do not suggest that Lane‘s medical needs were being deliberately disregarded.

Lane attempts to bolster his deliberate-indifference claim against Redden by highlighting the fact that a non-defendant doctor at the prison gave him a low-level dorm accommodation and a cane on March 10, 2010. However, these assertions do not show deliberate indifference on Redden‘s part. Lane‘s allegations suggest, at most, a difference in medical opinion, which is not actionable under § 1983. See .

Further, because Lane does not allege facts showing that Redden was personally involved in ordering shoes for him, or in the purported two-week delay in treatmеnt after his February 18, 2010, injuries, these assertions do not support a deliberate-indifference claim against Redden. See . Moreover, Lane‘s records show that he was scheduled for nurse sick call on February 19, 2010, but was a “no show.” Further, in April 2010, medical staff told Lane that they would order the boots Lane was requesting at that time if the podiatrist prescribed them.

Lane unpersuasively argues that the district court based its judgment on an incomplete record. We review for an abuse of discretion a claim that summary judgment was prеmaturely granted due to the lack of discovery. . Lane did not file an affidavit asserting that facts necessary to oppose the Wexford defendants’ summary judgment motion were unavailable to him. Fed.R.Civ.P. 56(d). “[T]o preserve the argument that the grant of summary judgment was too hasty and precluded necessary discovery, ‍​​‌‌‌‌​​​​​‌​‌‌​​‌‌‌‌‌​‌‌‌‌‌​‌​‌‌​​‌​​​​​‌​​‌​‌‌‍the appellant must have cоmplied with the strictures of Federal Rule of Civil Procedure 56[(d)].” . “Bare allegations or vague assertions of the need for discovery are not enough.” . Because Lane failed to satisfy the requirements of Rule 56(d), the district court was undеr no obligation to allow additional discovery pertaining to his medical records before granting summary judgment.

The district court‘s judgment is affirmed and Lane‘s motion for leave to proceed in forma pauperis is denied as moot.

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