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STATE OF MICHIGAN
COURT OF APPEALS


DAVID ALLAN, Plaintiff-Appellee, v GODFREY AGUWA, Defendant-Appellant, and CONNIE ANDERSON, DEPUTY WASHINGTON, WARDEN HENRY GRAYSON, and BETTY JOHNSON, Defendants.

UNPUBLISHED January 12, 2001

No. 215858 Jackson Circuit Court LC No. 96-075616-NO

DAVID ALLAN, Plaintiff-Appellee, v MICHIGAN DEPARTMENT OF CORRECTIONS, Defendant-Appellant. No. 215860 Court of Claims LC No. 96-016173-CM

Before: Meter, P.J., and Griffin and Talbot, JJ. PER CURIAM. In these cases tried jointly before the trial court without a jury, defendants Godfrey Aguwa and Michigan Department of Corrections (DOC) appeal as of right from a judgment

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rendered in favor of plaintiff in the amount of $85,000. Specifically, defendants appeal from the trial court's previous order denying their motions for summary disposition. We reverse. I This case arises out of an April 13, 1993, injury that plaintiff suffered after having surgery performed on his ankle. At the time of the injury, plaintiff was a prisoner housed at the Charles Egeler Correctional Facility in Jackson. On April 7, 1993, plaintiff was admitted to Foote Memorial Hospital to have surgery (a bone fusion) performed on his left ankle because of a preexisting ankle condition.1 Following the operation, plaintiff's heavily bandaged leg was placed in a non-weight bearing cast and plaintiff needed crutches to walk. One week later, plaintiff was released from the hospital and returned to Dwayne Waters Hospital, located on the grounds of the Egeler facility. Plaintiff was then sent to the control center where he was told to return to his former housing unit, Two Block. Plaintiff allegedly presented his medical orders indicating his need for a base-level cell2 to defendant Aguwa, who was the assistant resident unit manager (ARUM) of Two Block.3 However, plaintiff was placed in a first-level cell instead, and later that day, while descending the flight of stairs, plaintiff fell, reinjuring his left ankle.4 The next day, plaintiff was assigned a base-level cell in Three Block. Plaintiff filed suit in Jackson Circuit Court against defendant Aguwa, 5 alleging that in his capacity as ARUM of Two Block, Aguwa was grossly negligent in failing to place him in a baselevel cell on his return from ankle surgery. Plaintiff further alleged defendant Aguwa was deliberately indifferent to his serious medical need of a base-level cell on his return from surgery in violation of federal law, specifically 42 USC 1983. Plaintiff contemporaneously filed a separate but virtually identical action for damages against defendant DOC in the Michigan Court of Claims and the cases were consolidated. Defendants moved for summary disposition pursuant to MCR 2.116(C)(7), (8), and (10), asserting that they were protected by governmental immunity and were not deliberately indifferent to plaintiff's medical needs for purposes of 42 USC 1983. The trial court, without elaboration, denied summary disposition with regard to defendant DOC and, pursuant to MCR 2.116(C)(10), denied the motion as it pertained to defendant Aguwa. The action thereafter

In 1985, plaintiff sustained a crush-type injury to his left ankle in an automobile accident, requiring numerous surgeries prior to the April 7, 1993, surgery that is the subject of the current case. A base-level cell is a cell located on the correctional facility's ground floor; first-level or firstgallery cells are one level above the base-level cells. Aguwa testified at his deposition that as assistant resident unit manager, he counseled prisoners and played a role in placing prisoners who had special medical needs in appropriate cells.
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Plaintiff split his incision open, bent the screw that was inserted into his ankle and broke his fusion.

Numerous other defendants were also named in defendant's complaint but dismissed from the suit prior to or during the trial.

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proceeded to a bench trial where defendants were found liable to plaintiff.6 A judgment in the amount of $85,000 plus costs and mediation sanctions was entered in favor of plaintiff.

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The trial court held, in pertinent part: The Court: . . . I think that the State of Michigan, Department of Corrections was indifference [sic] to the needs of this man. I think that it was clear indifference and the State should be liable for his damages. I also find that Mr. Aguwa was grossly negligent in his conduct in this regard before and during this incident. . . . [I]t's just common sense to see a man that can't even balance himself

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