Boone v. Heyns et al

Filing 425

OPINION and ORDER Granting Defendant Squire's 424 Motion for Leave to File Second Motion for Summary Judgment. (Summary Judgment Motion due by 8/1/2022. ) Signed by District Judge Thomas L. Ludington. (KWin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
RICHARD BOONE II,
Plaintiff,

Case No. 1:12-cv-14098

v.

Honorable Thomas L. Ludington
United States District Judge

JEFFERY STIEVE et al.,
Defendants.
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OPINION AND ORDER GRANTING DEFENDANT SQUIRE’S MOTION FOR LEAVE
TO FILE SECOND MOTION FOR SUMMARY JUDGMENT
This matter is before this Court upon Defendant Harriet Squire’s Motion for Leave to file
a Second Motion for Summary Judgment. As explained hereafter, her Motion will be granted.
I.
On September 14, 2012, Plaintiff Richard Boone II, a state prisoner, filed a pro se
civil-rights complaint alleging deliberate indifference to his serious medical needs in violation of
the Eighth Amendment. ECF No. 1.
Among others, Plaintiff sued Harriet Squire, who was an employee of Corizon who treated
Plaintiff. ECF No. 305 at PageID.3052. According to the remaining Counts, see ECF No. 395 at
PageID.6434 (dismissing several claims), Defendant Squire demonstrated deliberate indifference
to Plaintiff’s medical needs by “depriv[ing] Plaintiff use of his CPAP” [Count I]. Id. ECF No. 305
at PageID.3076.
This case was delayed due to the untimely passing of the assigned district judge, Arthur
Tarnow. After reassignment to the undersigned, Defendant Squire has filed a motion for leave to
file a second motion for summary judgment. ECF No. 424.

II.
A.
“[D]istrict courts may . . . permit renewed or successive motions for summary judgment.”
Taylor v. City of Saginaw, No. 1:17-CV-11067, 2022 WL 202999, at *2 (E.D. Mich. Jan. 21, 2022)
(quoting Lexicon, Inc. v. Safeco Ins. Co. of Am., 436 F.3d 662, 670 n.6 (6th Cir. 2006)). Leave to
file a second motion for summary judgment is “especially appropriate” in cases of (1) an
intervening change in controlling law; (2) newly available evidence or an expanded factual record;
and (3) a need to correct a clear error or prevent manifest injustice. Allen v. Watts, No. 2:19-CV12024, 2021 WL 3053383, at *2 (E.D. Mich. July 20, 2021) (citing Whitford v. Boglino, 63 F.3d
527, 530 (7th Cir. 1995) (per curiam)).
In her attempt to establish good cause for leave to file a second motion for summary
judgment, Defendant Squire presents one argument: Plaintiff cannot establish Squire’s deliberate
indifference under intervening, controlling Sixth Circuit precedent. ECF No. 424 at PageID.6616–
18 (citing Phillips v. Tangilag, 14 F.4th 524, 535 (6th Cir. 2021)).
B.
Based on a cursory review of Phillips, the following passages might change the outcome
of Counts I as it applies to Defendant Squire:
More frequently, doctors provide some care and prisoners challenge their
treatment choices as inadequate. To establish the objective element in this common
situation, prisoners must show more. Objectively speaking, this care qualifies as
“cruel and unusual” only if it is “so grossly incompetent” or so grossly “inadequate”
as to “shock the conscience” or “be intolerable to fundamental fairness.” Ordinary
individuals outside a prison’s walls and inmates within those walls both face a risk
that their doctors will perform incompetently. That is why the states have adopted
a well-established body of tort law to remedy the harms caused by medical
malpractice. But mere malpractice does not violate the Eighth Amendment. Only
grossly or woefully inadequate care—not just care that falls below a professional
standard—can be called “cruel and unusual.” This test avoids turning the Eighth
Amendment into a federal malpractice statute.
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For prisoners to prove grossly inadequate care, moreover, courts generally
require them to introduce medical evidence, typically in the form of expert
testimony. This medical-evidence requirement makes sense in a world in which the
Supreme Court looks to the “evolving standards of decency” to determine the
Eighth Amendment’s standards. Even for garden-variety negligence claims, “[t]he
overwhelming weight of authority supports the view that ordinarily expert evidence
is essential to support an action for malpractice against a physician or surgeon.” So
a medical-evidence requirement sits comfortably within society’s “decency”
standards. And it would be odd if a prisoner could prove an Eighth Amendment
claim more easily than an ordinary individual could prove a malpractice claim.
Phillips, 14 F.4th at 535 (internal citations omitted).
Phillips v. Tangilag is controlling and intervening; it is a published opinion from the Sixth
Circuit Court of Appeals dated after Defendant Squire’s last Motion for Summary Judgment was
decided. In her Motion for Leave, Squire argues that Phillips newly requires Plaintiff to provide
an expert witness to prove his deliberate-indifference claims. ECF No. 421 at PageID.6608.
Without engaging the merits of Phillips or its progeny, Squire’s reading is reasonable.
Because Squire has provided controlling, intervening precedent that reasonably changes
the outcome of Plaintiff’s relevant claims, Defendant Squire has established good cause to file a
second motion for summary judgment. Consequently, her Motion for Leave will be granted.
III.
Accordingly, it is ORDERED that Defendant Squire’s Motion for Leave to File a Second
Motion for Summary Judgement, ECF No. 424, is GRANTED. Her Motion is due on or before
August 1, 2022.
Dated: June 27, 2022

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge

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