FROMER v. CORIZON, INC. et al

Filing 81

ORDER on Plaintiff's Motion Regarding Sufficiency of Objections(Dkt. 56) and on Plaintiff's Motion to Compel Discoveryand for Extension of Time to Serve Expert Reports (Dkt. 57): The plaintiff's motion regarding the suffic iency of the objections to the requests for admission served on the Miami and Putnamville HSAs (Dkt. 56) is GRANTED IN PART AND DENIED IN PART. The plaintiff's motion to compel (Dkt. 57) is GRANTED IN PART AND DENIED IN PART. The defendants' supplemental discovery responses as ordered herein must be served on the plaintiff within 14 days of the date of this order. Any motion for leave to amend must be filed within 10 days of the date of this order. The plaintiff's request for an extension of time to serve his expert reports is GRANTED in that the pl aintiff must serve any expert report on or before June 9, 2014. The magistrate judge recommends that the district judge (a) deny the defendants' ; pending motion for summary judgment without prejudice; (b) establish a new dispositive motion deadline of May 19, 2014; and (c) continue the trial date to a time no earlier than January 2015 (see Order for additional information). Signed by Magistrate Judge Debra McVicker Lynch on 4/14/2014. (SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
)
)
)
Plaintiff,
)
vs.
) Case No. 1:13-cv-00220-JMS-DML
)
)
CORIZON, INC.,
NOE MARANDET M.D., individually
)
)
and in his official capacity as an
)
employee of Defendant Corizon, Inc.,
)
NAVEEN RAJOLI M.D., individually
)
and in his official capacity as an
)
employee of Defendant Corizon, Inc.,
)
MIAMI CORRECTIONAL FACILITY
)
HEALTH SERVICES
)
ADMINISTRATOR individually and in
)
his or her official capacity as an
employee of Defendant Corizon, Inc., and )
)
PUTNAMVILLE CORRECTIONAL
)
FACILITY HEALTH SERVICES
)
ADMINISTRATOR individually and in
)
his or her official capacity as an
)
employee of Defendant Corizon, Inc.,
)
)
Defendants.
AARON FROMER,

Order on Plaintiff’s Motion Regarding Sufficiency of Objections
(Dkt. 56) and on Plaintiff’s Motion to Compel Discovery
and for Extension of Time to Serve Expert Reports (Dkt. 57).
This case has hit a wall because of neglect on both sides of the caption
regarding defendants that plaintiff Aaron Fromer named in his complaint as (a)
“Miami Correctional Facility Health Services Administrator individually and in his
or her official capacity as an employee of Defendant Corizon, Inc.” (hereafter,

“Miami HSA”) and (b) Putnamville Correctional Facility Health Services
Administrator individually and in his or her official capacity as an employee of
Defendant Corizon, Inc” (hereafter, “Putnamville HSA”).
This order contains various rulings intended to put this case back on course,
while recognizing that both parties share blame for the current state of affairs. As
explained below, the court will give the plaintiff an opportunity to seek to amend
his complaint if he wishes to pursue individual judgments against the Miami HSA
and Putnamville HAS and can do so consistent with the facts gathered to date and
Fed. R. Civ. P. 11. (The court makes no determination at this time whether leave to
amend will, in fact, be granted.) The court will require the defendants to provide at
this time answers to discovery on behalf of the offices of Miami HSA and
Putnamville HSA and requires other supplements to the defendants’ discovery
responses. It extends the time for the plaintiff to serve his expert report. And it
recommends that the District Court (a) deny the defendants’ motion for summary
judgment but without prejudice to its renewal after they serve supplemental
answers to discovery and (b) vacate the current trial date.
The Complaint, Its Service, and the Defendants’ Answers
Mr. Fromer is in prison. His complaint alleges that the health care he
received for infections, which ultimately were diagnosed as MRSA, while
incarcerated at Miami (from March 2009 to June 2012) and Putnamville (from June
20, 2012, to the time his complaint was filed) was so inadequate and ineffective that
his constitutional rights were violated. In addition to naming as defendants the

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Miami and Putnamville HSAs, Mr. Fromer named two doctors—Noe Marandet,
M.D., who saw him while at Miami, and Naveen Rajoli, M.D., who saw him while at
Putnamville—and Corizon, Inc., a private corporation that has (and had at the time
period Mr. Fromer received medical care) a contract with the Indiana Department
of Corrections to provide medical care to inmates at IDOC facilities, including
Miami and Putnamville. According to the complaint, Corizon employed the two
defendant doctors and the Miami and Putnamville HSAs during the relevant
periods.
Mr. Fromer’s complaint states that he does not know the identities of the
persons who served as the Miami HSA or the Putnamville HSA. Even though Mr.
Fromer’s complaint purports to sue people who held these positions in their
individual capacities, he did not name any individuals who occupied these positions
and against whom he seeks a monetary judgment. And despite not having named
individuals, Mr. Fromer mailed summonses and complaints addressed to the office
of Miami HSA and the office of Putnamville HSA. He then filed proofs of service
and attached the certified mailing return green cards showing that someone at each
prison signed for the papers addressed to the “Miami Correctional Facility Health
Services Administrator” and “Putnamville Correctional Facility Health Services
Administrator.” (Dkts. 16 and 17).
Naming an office without naming and serving a particular individual is
insufficient for the court to exercise personal jurisdiction and have power eventually
to enter judgment against the individual. In cases such as this one, where the

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plaintiff needs some discovery to identify the persons he believes wronged him, the
court generally allows the plaintiff sufficient time to learn the names and then
serve them with summonses so that the court can exercise personal jurisdiction.
The Seventh Circuit described this process in Rodriguez v. Plymouth Ambulance
Service, 577 F.3d 816 (7th Cir. 2009), noting particularly that it is not unusual in
prison cases that the plaintiff does not at the time of filing his complaint know the
names of the persons who injured him. The court remarked:
If a prisoner makes allegations that if true indicate a significant
likelihood that someone employed by the prison system has inflicted
cruel and unusual punishment on him, and if the circumstances are
such as to make it infeasible for the prisoner to identify that someone
before filing his complaint, his suit should not be dismissed as
frivolous. The principle is not limited to prisoner cases. It applies to
any case in which, usually because the plaintiff has been injured as the
consequence of the actions of an unknown member of a collective body,
identification of the responsible party may be impossible without
pretrial discovery. . . . Of course, eventually the plaintiff must discover
the names of the defendants in order to serve summonses on them and
thus establish the court’s personal jurisdiction, without which the suit
must be dismissed.
Id. at 821 (quoting Billman v. Indiana Department of Corrections, 56 F.3d 785, 78990 (7th Cir. 1995)).
Until very recently, defendants’ counsel never contended that Mr. Fromer
had not done enough to state claims against the Miami HSA or the Putnamville
HSA, individually and in their capacities as Corizon employees or to bring such
persons within the jurisdiction of the court. Indeed, defendants’ counsel
consistently acted as if claims had been stated against Miami HSA and Putnamville
HSA. Counsel (a) entered appearances for Miami HSA and Putnamville HSA, (b)

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asked for time for them to respond to the complaint; (c) filed answers that say
nothing about the plaintiff having failed properly to name individuals, insufficient
service, or lack of jurisdiction1; (d) filed a proposed case management plan that did
not alert the plaintiff or the court to these issues and instead provided merit-based
reasons why the two HSAs are not liable (they were “not personally involved in Mr.
Fromer’s medical care and therefore cannot be held liable on a Section 1983 claim”);
(e) appeared at the initial pretrial conference on behalf of the two HSAs; (e) filed
witness and exhibit lists on their behalf; (f) sought extensions of time for them to
complete case management tasks; (g) appeared at a telephone status conference for
them; and (h) participated in a settlement conference and filed a confidential
settlement statement on their behalves.
Shortly after the initial pretrial conference held April 4, 2013, defendants’
counsel sent emails to Mr. Fromer notifying him of the names of persons who were
the HSA at Miami and Putnamville “during the relevant time period” (see Dkt. 60-1
and 60-2). Mr. Fromer did not thereafter seek to amend his complaint to name
these individuals and bring them within the jurisdiction of the court.2 Rather, Mr.

Instead, the answer says that the complaint fails to state claims against the
Miami HSA and Putnamville HSA because these administrators “were not
personally involved in the alleged constitutional violation.” See Dkt. 20, Affirmative
Defenses ¶ 2.
1

It is not clear whether the information from defendants’ counsel was
accurate. For example, counsel advised Mr. Fromer that the Putnamville HSA was
Michael Natalie, who started work there on July 1, 2012. (Dkt. 60-2). But when
Mr. Natalie was deposed, he testified that his employment as the Putnamville HSA
began a year later, on July 23, 2013, which is after Mr. Fromer filed his complaint.
(Natalie Dep. Trans. page 13:15-23, Dkt. 60-3).
2

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Fromer went along apparently assuming that nothing more needed to be done (or he
just forgot he needed to seek to amend the complaint) and defendants’ counsel also
continued to participate in the case on behalf of the HSAs in their “individual” and
their “official” capacities as Corizon employees, including participating in a
settlement conference with the magistrate judge in February 2014.
In mid-December 2013, Mr. Fromer served his first sets of written discovery
requests. He served interrogatories, requests for admission, and document requests
on (a) Corizon; (b) the two doctors named in the complaint; (c) the Miami HSA; and
(d) the Putnamville HSA. About a month later, on January 21, 2014, a new lawyer
(Brian Richtarcik) for the defendants became involved and was assigned the
responsibility to answer all of the discovery. (See Dkt. 70 at p. 2). He promptly,
with the plaintiff’s consent, obtained additional time to answer the discovery and
served answers in mid-February 2014. Not until mid-February when defense
counsel refused to respond to written discovery requests issued to the Miami and
Putnamville HSAs did defense counsel for the first time assert that they had not
been properly named or served.
Requests for Admission to Miami and Putnamville HSAs
The Miami and Putnamville HSAs refused to answer the requests for
admission directed to them on the ground that they are anonymous parties that Mr.
Fromer never properly sued or served. Although the court agrees that there are not
yet any persons before the court sued in their individual capacities as Miami and
Putnamville HSAs and against whom any judgments in their individual capacities

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could be entered, the defendants have consistently litigated this case as if they
represent the offices of Miami and Putnamville HSAs as agents and employees of
Corizon. The court will require Corizon to answer each of the requests for
admission directed to the Miami and Putnamville HSAs, and Corizon must provide
answers based on information within its possession, custody, and control, and on
information it can reasonably obtain from its agents and employees. In the answers
(see Request for Admission #s 3 and 4), Corizon must identify by name the person(s)
who served as the Miami HSA or Putnamville HSA within the time periods listed in
the request. To answer the remaining requests, Corizon must provide answers
based on whether the office of the Miami HSA or Putnamville HSA, respectively,
had the duties and responsibilities described in the requests during the time periods
that Mr. Fromer contends he was denied appropriate medical care. In providing
answers based on the usual and expected duties of the HSAs, Corizon must conduct
a good faith and through investigation of facts and information available to it.
Corizon must provide the answers within 14 days of the date of this entry.
The court denies the plaintiff’s request that the court deem all of the requests
admitted.
Claims against individual Miami or Putnamville HSAs
can be pursued only through an amended complaint.
Mr. Fromer must seek leave to amend his complaint to name individuals who
are, or were, the Miami or Putnamville HSA against whom he seeks relief in their
individual capacities. Any such motion must be filed within 10 days of the date of
this entry. The court expresses no opinion here whether Mr. Fromer will be able to
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demonstrate the requisite diligence on his behalf and lack of prejudice to others to
gain this court’s permission to amend. See, e.g., Alioto v. Town of Lisbon, 651 F.3d
715, 719-20 (7th Cir. 2011) (party who seeks to amend after case management
deadline must satisfy Rule 16’s good cause standard and Rule 15(a)). Mr. Fromer
should consider too whether he has any factual basis to support claims for
individual liability. If individual capacity claims are not permitted, then the
allegations against the Miami and Putnamville HSAs will be deemed allegations
against Corizon based on its employment of the HSAs.
Other Discovery Disputes
The other discovery disputes between the parties are described in the
plaintiff’s motion to compel (Dkt. 57) and the defendants’ response brief (Dkt. 69).
The discovery requests at issue are listed in Dkt. 57-4. In the court’s view, the
defendants’ discovery responses—the sufficiency of which are now before it on the
plaintiff’s motions—reflect counsel’s attempt to avoid the effort necessary to provide
real answers (working with client representatives to obtain the necessary
information and documents). The court now turns to these discovery issues.
A. Interrogatories and Document Requests to Putnamville and Miami HSAs.
Corizon must answer these discovery requests on behalf of these HSAs and
based on documents and information available through a good-faith and thorough
investigation by Corizon. Corizon is not, however, required to answer
Interrogatories 4, 7, 13, or 14, or respond to Document Requests 28, 40, 43, 46, or
47. The other interrogatories and document requests must be answered based on

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information known or reasonably available to the occupant of the positions of
Putnamville and Miami HSAs or to Corizon itself. The court does not prevent
Corizon from interposing objections to these requests based on undue burden or
expense if such objections can be made in good faith. The court does prevent
Corizon from refusing to provide information based solely on the fact that the
plaintiff has not effected suit against any persons in their individual capacities who
served as the HSAs.
The answers and documents must be served by Corizon within 14 days.
B. Interrogatories and Document Requests to Dr. Marandet
1.

Interrogatory 9. The court agrees with Mr. Fromer that the answer to

interrogatory 9 appears incomplete. Dr. Marandet does not explain what each
identified person did in the decision-making process about the plaintiff’s medical
care and treatment. He must supplement his answer. In answering this
interrogatory, Dr. Marandet is required to review and consider all information
reasonably available to him, including Mr. Fromer’s medical chart. Dr. Marandet
should review the chart—and not just his lawyer—so that he can provide full and
complete answers.
2.

Requests for Production 4, 5, 6, 7, 8, 9, 10, 11, 13, and 14. The court

DENIES the motion to compel with respect to all these requests except request 7.
Dr. Marandet must produce the insurance policy if he has not already done so.
Request 11 seeks irrelevant information and no response is required. As to requests
4, 5, 6, 8, 9, 10, and 13, Dr. Marandet’s answers clearly state that he does not

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possess any responsive documents. As to request 14, Dr. Marandet sufficiently
explained that Mr. Fromer’s medical chart is the basis for his denials of allegations
in the complaint.
C. Interrogatories and Document Requests to Dr. Rajoli
1.

Interrogatories 9, 11, 17, and 18. Dr. Rajoli must supplement the

answers to these interrogatories. Dr. Rajoli’s answers to 9, 11, and 17 refer Mr.
Fromer to his medical chart; those answers are insufficient. Dr. Rajoli must review
the medical chart and any other information reasonably available to her and then
specifically list the persons involved in decision-making for Mr. Fromer’s medical
care and the ways they were so involved, list the persons who she believes has
relevant facts and the nature of each person’s knowledge, and the specific ways Dr.
Rajoli believes that Mr. Fromer was not compliant with treatment. As to
interrogatory 18, Dr. Rajoli’s answer is inadequate—there is no detail regarding the
difference between “regular” and “chronic care” conditions as they pertain to the
categories described in this question. Dr. Rajoli must provide more detail regarding
these categories and how disease management is different between these categories,
if it is.
2.

Requests for Production 6, 8, 10, 12, 13, 14, and 17. The court denies

the motion to compel Dr. Rajoli to supplement his response to document request 14.
He made clear that he is relying on the contents of Mr. Fromer’s medical chart to
support his denials of allegations in the complaint. The court also denies the

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motion with respect to document requests 6, 8, 10, 12, 13, and 17. Mr. Fromer has
not sufficiently demonstrated that the responses are unclear.
D. Interrogatories and Document Requests to Corizon.
1.

Interrogatories 3, 9, and 10. The court is satisfied that the answer to

Interrogatory 3 is sufficiently complete. As to Interrogatory 9, Corizon must state
whether it contends that all information it had regarding Mr. Fromer’s medical
condition is contained in Mr. Fromer’s medical chart. As to Interrogatory 10,
Corizon must state whether it contends that every single person mentioned on any
part of Mr. Fromer’s medical chart was involved in the “decision making process” for
Mr. Fromer’s care and treatment. If that is not the case, then Corizon must
supplement its answer to Interrogatory 10 and list specifically the persons it
contends was involved in that decision making.
2.

Requests for Production 7, 8, 12, 13, 14, 16, 17, 18, 19, 20, 21, 24, 28,

31, 32, 33, 36, 43, 44, 45, 49, and 53.
The court GRANTS Mr. Fromer’s motion to compel as to request #7. It is not
persuaded by Corizon’s argument that it does not have to produce the requested
documentation because of copyright issues. It is also not persuaded that the
information is so easily obtainable by the plaintiff from other sources that Corizon
should be relieved of providing it.

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As to requests 8, 12, 13, 16-18 (as narrowed to matters pertaining to
suspected or confirmed MRSA infections)3, 19-20, 21 (as narrowed to grievances,
complaints, investigations, and disciplinary against the HSAs or Corizon’s Regional
Medical Director), 28, 31, 33 (as narrowed to medications), and 36 (as narrowed to
suspected or confirmed MRSA infections), the court is not persuaded by Corizon’s
objections on relevancy grounds or its contention that Mr. Fromer’s requests are an
unwarranted fishing expedition. Mr. Fromer is attempting to establish (a)
infectious disease and control practices known to or utilized by Corizon and its
employees in providing medical care and treatment, (b) Corizon’s awareness of
problems with infectious diseases as to Mr. Fromer personally and throughout the
facilities at which he was incarcerated; (c) whether Mr. Fromer may have been
denied appropriate treatment based on cost-cutting practices; and (d) whether Drs.
Marandet and Rajoli or other officials with primary responsibility for his care have
been the subject of other complaints, grievances, investigations, or disciplinary
action. The foregoing requests described in this paragraph are relevant to these
matters and responsive documents must be produced by Corizon.
As to requests 43, 44, 45, and 49, the court requires Corizon to produce
minutes of the subject meetings (for Health Services Staff meetings, Quality
Assurance meetings, Safety and Sanitation/Infection Control meetings, and Peer
Review Committee meetings pertaining to Miami and Putnamville) for the period

Mr. Fromer narrowed some of his requests as described in his email at Dkt.
57-4. In some instances, the court has further narrowed the scope of discovery it
finds appropriate.
3

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January 1, 2009, through December 31, 2013, to the extent that the meeting
minutes pertain to or reference MRSA.
As to requests 14 and 53, the court is satisfied with the explanation provided
in the defendants’ response brief that the job descriptions Corizon produced were “in
effect at Miami and Putnamville correctional facilities during the time in question.”
(Dkt. 70 at p. 6). No further supplementation is required.
For request 24, Corizon must produce the ACA report for Putnamville if it
has not done so already.
For request 32, Mr. Fromer has not demonstrated how “all” documents
pertaining to Quality Assurance are reasonably necessary for the prosecution of his
claims. The court denies his motion as to that request.
As to the documents the court is requiring Corizon to produce and
supplements to interrogatories Corizon is required to make, the documents and
information must be provided within 14 days of the date of this order. In addition,
the court is amenable to entering an appropriate protective order if warranted. Any
motion for protective order should promptly be filed.

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Mr. Fromer’s Request for More Time to Serve an Expert Report
The court agrees with Mr. Fromer that his deadline to serve an expert report
should be extended until after he receives the supplemental discovery from the
defendants that the court is requiring in this order.
The court GRANTS Mr. Fromer until June 9, 2014, to serve his expert report.
If upon receipt of the defendants’ supplemental discovery responses, Mr. Fromer
believes he will need additional time to serve his expert report, he must
immediately seek that time from the court. An extension is not assured. Rather,
Mr. Fromer will be expected to demonstrate specifically why his expert is or will be
unable to complete an expert report because of alleged deficiencies in the
defendants’ supplemental discovery responses.
Recommendation to the District Judge Regarding Summary Judgment
and the Trial Date
Because the court is requiring the defendants to provide supplemental
discovery responses and is permitting Mr. Fromer time to serve an expert report,
the court recommends that the district judge deny the defendants’ motion for
summary judgment but without prejudice to its renewal after supplemental
discovery is provided. The magistrate recommends that the district judge establish
a new deadline of May 19, 2014, for the defendants to file dispositive motions. That
deadline allows sufficient time to the plaintiff after service of the new motion to
evaluate the defendants’ supplemental discovery responses and obtain and serve his
own expert reports before a responsive brief is due.

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The proposed new time frame interferes with the current trial date. The
magistrate judge recommends that the court set a new trial date, to occur no earlier
than January 2015.
Conclusion
The plaintiff’s motion regarding the sufficiency of the objections to the
requests for admission served on the Miami and Putnamville HSAs (Dkt. 56) is
GRANTED IN PART AND DENIED IN PART as described in this order.
The plaintiff’s motion to compel (Dkt. 57) is GRANTED IN PART AND
DENIED IN PART as described in this order.
The defendants’ supplemental discovery responses as ordered herein must be
served on the plaintiff within 14 days of the date of this order.
Any motion for leave to amend must be filed within 10 days of the date of this
order.
The plaintiff’s request for an extension of time to serve his expert reports is
GRANTED in that the plaintiff must serve any expert report on or before June 9,
2014.
The magistrate judge recommends that the district judge (a) deny the
defendants’ pending motion for summary judgment without prejudice; (b) establish
a new dispositive motion deadline of May 19, 2014; and (c) continue the trial date to
a time no earlier than January 2015.
So ORDERED.

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____________________________________
Debra McVicker Lynch
United States Magistrate Judge
Southern District of Indiana

04/14/2014
Date: _____________

Distribution:
All ECF-registered counsel of record via email generated by the court’s ECF system

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