Lashuay v. Delilne et al
ORDER Denying Without Prejudice 5 , 6 Motion for Expedited Discovery, Granting 40 Motion to Strike Second Amended Complaint, Striking 35 Second Amended Complaint, and Setting Plaintiff's 39 Motion for Leave to File an Amended Complaint for Hearing. (Motion Hearing on 39 Motion for Leave to File an Amended Complaint set for 2/28/2018 at 4:00 PM before District Judge Thomas L. Ludington.) Signed by District Judge Thomas L. Ludington. (KWin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 17-cv-13581
Honorable Thomas L. Ludington
AIMEE DELILNE, et al,
ORDER DENYING WITHOUT PREJUDICE MOTION FOR EXPEDITED
DISCOVERY, GRANTING MOTION TO STRIKE SECOND AMENDED COMPLAINT,
STRIKING SECOND AMENDED COMPLAINT, AND SETTING PLAINTIFF’S
MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT FOR HEARING
On November 1, 2017, Plaintiff David Lashuay filed a complaint against a variety of
medical staff and medical providers alleging that they were deliberately indifferent to his medical
needs while he was incarcerated by the Michigan Department of Corrections. ECF No. 1. On
November 10, 2017, and before any Defendants were served, Lashuay filed an amended complaint
which made minor factual clarifications and corrected several clerical errors. ECF No. 4. On the
same day, Lashuay filed two ex parte motions for leave to commence limited discovery
immediately.1 ECF Nos. 5, 6. In the request, Lashuay explains that his prefiling investigation did
not reveal the identity of two potential Defendants (named as John Does in the complaint). Lashuay
seeks leave to take a deposition and issues subpoenas to identify the proper parties.
Over the next several weeks, most named Defendants were served. On December 8, 2017,
the served Defendants filed a motion to dismiss the claims against them. ECF No. 26. That motion
is currently set for hearing on February 28, 2018. ECF No. 32. On December 27, 2017, Plaintiff
Because the two motions are materially identical, the first motion, ECF No. 5, will be denied as moot.
filed a second amended complaint. ECF No. 35. That second amended complaint does not name
new Defendants, but does amend the claims being advanced. In its reply brief in support of its
motion to dismiss, Defendants noted that the second amended complaint had been improperly filed
because Lashuay had already amended once as by right. On January 3, 2018, Lashuay filed a
motion for leave to file its second amended complaint. ECF No. 39. The next day, the served
Defendants filed a motion to strike the previously filed second amended complaint. ECF No. 40.
In his motion for leave to file a second amended complaint, Lashuay acknowledges that
Federal Rule of Civil Procedure 15(a)(1) only permits one amendment as of right. By making that
admission (and, indeed, filing the motion for leave to file a second amended complaint), Lashuay
has conceded that the second amended complaint was improperly filed. The second amended
complaint, ECF No. 35, will be stricken, and Lashuay’s motion for leave to file a second amended
complaint will be scheduled for hearing.2 If Lashuay’s motion is granted, he will be directed to
refile the second amended complaint. Additionally, and for the reasons provided below, Lashuay’s
motion for expedited discovery will be denied.
Lashuay’s amended complaint alleges that, on July 9, 2014, Lashuay suffered third degree
burns on 49% of his body because of an explosion in Otsego County, Michigan. Am. Compl. at
10, ECF No. 4. Lashuay was treated at the Hurley Hospital Burn Unit in Flint Michigan for many
weeks. Id. On October 16, 2014, Lashuay was released from Hurley Hospital and into the custody
of the Michigan Department of Corrections. Id. He remained in MDOC custody until September
1, 2016, when he was released on parole. Id.
In their motion to strike the second amended complaint, Defendants allege that Lashuay agreed to withdraw the
second amended complaint. See Mot. Strike at 3, ECF No. 40.
Lashuay’s claims arise out of the MDOC’s alleged deliberate indifference to his medical
needs upon his release from Hurley Hospital. He contends that, when released into MDOC
custody, “Hurley hospital recommended additional skin grafts and surgery to release contractures
caused by the burns, with a re-visit at their Burn Unit in 2 weeks to evaluate for planned surgeries.”
Id. at 10–11.
According to Lashuay, MDOC medical personnel “assured the Hurley Hospital medical
staff that all of Plaintiff’s medical needs would be met,” but failed to fulfill that promise. Id. at 11.
Specifically, Lashuay contends that, “[u]pon arrival at [MDOC’s Dwayne Waters Hospital
(DWH)], Plaintiff had open wounds requiring daily dressing changes and application of
medications.” Id. Despite his condition, he was “placed in isolation for 30 days.” Id. He alleges
that, during his incarceration, he received “minimal or no wound care.” Id. Rather, Lashuay was
“required to attend to his daily wound-care needs, dressing changes and medication application
with no or minimal assistance from healthcare staff.” Id. He alleges that he was “frequently not
provided with adequate supplies to change his wound dressing and had to resort to tearing up
garbage bags to cover some of the open wounds.” Id. at 11–12.
Lashuay alleges that “[t]here are numerous notations in the RN’s and NP and other
defendant medical provider records indicating that Plaintiff was doing his own wound care and
asking for help ‘if needed’ however, [sic] there is only 1-2 records of any medical provider actually
providing any assistance with wound care.” Id. at 12. The Defendants “merely documented the
existing oozing wounds, new open wounds, failed skin grafts, and reopened wounds”; they did not
take “any action to provide wound care, continuing to leave it to Plaintiff with inadequate
Lashuay contends that, as a result of Defendants’ “failure to provide medically necessary
wound care and supplies,” he suffered medical complications “most or all of which would not have
occurred with professional wound care.” Id. He further alleges that, as a result of his “continued
and new wounds,” necessary surgery and physical therapy was delayed and denied. Id.
Specifically, Lashuay alleges that, on or around January 2015, the Hurley Hospital recommended
that he undergo surgery. Id. at 14. Despite that recommendation, “[i]n January 2015, and
continuing thereafter, Defendants denied Hurley’s recommendation for surgeries.” Id.
Lashuay now contends that he is “severely disabled in the use of his right hand and his
range of motion in his neck and other body parts is severely restricted and he suffered extreme
pain throughout his” incarceration “and continuing to the present.” Id. at 12–13. He alleges that
the “Hurley Burn Clinic professionals” have advised him that “it is too late for there to be any
reasonable chance that the surgery would help.” Id. at 13.
Because their identities and roles are relevant to Lashuay’s request for expedited discovery,
the Defendants named in the amended complaint will be briefly identified. Aimee Delilne “was
the first RN to see Plaintiff upon his arrival at DWH . . . and provided nursing care per records
throughout his stay there.” Id. at 2–3. FNU Trout “was the ‘wound care nurse’ at DWH who was
notified of Plaintiff’s arrival and reportedly evaluated Plaintiff upon arrival for necessary wound
care services.” Id. at 3. FNU Wetzel “was from physical therapy services at DWH and reportedly
evaluated Plaintiff for physical therapy needs and prescribed or oversaw Plaintiff’s physical
therapy services while in custody of MDOC.” Id. Gary Duncan “was one of the 4 providers
involved in Plaintiff’s transfer and intake into DWH and provided or supervised care on various
occasions thereafter.” Id. at 3–4. Mollie Klee, Lorraine Vanbergen, Timothy Zeigler, and Kimberly
Dunning-Meyers provided nursing care to Lashuay throughout his incarceration. Id. at 4–5. Tana
Hill and Jennifer Wierman provided medical services to Lashuay and oversaw the nursing care
and wound management efforts. Id. at 4, 7.
Dr. Keith Papendick, the “Regional Medical Director for Corizon Health and/or the
MDOC,” was responsible for “approving or denying specialty services, such as physical therapy,
assistive or therapeutic devices, surgical consult and surgery” to MDOC patients. Id. at 5. Scott
Weaver was responsible for “providing physical therapy services to inmate patients” at DWH. Id.
at 6. Danielle Alford “saw Plaintiff upon admission to DWH and indicated in her care plan that
Plaintiff would provide his own wound care.” Id. at 6–7. Dr. Terence Whiteman saw Lashuay
when initially incarcerated and “approved Plaintiff being required to provide his own wound care.”
Id. at 7. Lynn Larson “was involved in responding to Plaintiff’s requests for recommended surgery
and following upon on or noting the responses thereto by other Defendants.” Id. at 8. Dr.
Muhammad Rais “oversaw Plaintiff’s care beginning 7/8/15 . . . until his release from MDOC
custody.” Id. William Borgerding “denied Plaintiff pain and burn care medications.” Id. And
Defendant Corizon Health, Inc., “employed or contracted with some or all of the individual
medical providers named as Defendants.” Id. at 9.
Finally, the amended complaint identifies two John Does. According to Lashuay, John Doe
1 “is the Chief Medical Officer for the MDOC . . . who is responsible for approving or denying
corrective and reconstructive surgical procedures and for all other inmate medical services.” Id. at
6. John Doe 2 is the Assistant Chief Medical Officer at DWH and “denied or failed to take adequate
measures to provide Plaintiff with medically necessary surgery, pain management, wound care
and physical therapy.” Id. at 8–9.
Federal Rule of Civil Procedure 26(d)(1) provides that “[a] party may not seek discovery
from any source before the parties have conferred as required by Rule 26(f), except . . . when
authorized by these rules, by stipulation, or by court order.” Lashuay seeks a court order
authorizing early discovery. In reviewing such requests, courts typically impose a “good cause
standard.” 8A Charles Alan Wright and Arthur R. Miller, 1993 Discovery Moratorium Pending
Discovery Plan, Fed. Prac. & Proc. Juris. § 2046.1 (4d ed.). Neither party has identified controlling
Sixth Circuit precedent. However, decisions within the circuit provide some guidance. In In re
Paradise Valley Holdings, Inc., the bankruptcy court explained that “‘[g]ood cause may be found
where the plaintiff’s need for expedited discovery outweighs the possible prejudice or hardship to
the defendant.’” No. 03-34704, 2005 WL 3841866, at *2 (Bankr. E.D. Tenn. Dec. 29, 2005)
(quoting Metal Bldg. Components, LP v. Caperton, 2004 U.S. Dist. LEXIS 28854, at *10 (D.N.M.
Apr. 2, 2004)). Further, “[g]ood cause is usually found in cases involving requests for injunctive
relief, challenges to personal jurisdiction, class actions, and claims of infringement and unfair
competition.” Id. The Paradise Valley Holdings opinion also emphasizes that Rule 26(d) “‘protects
defendants from unwarily incriminating themselves before they have a chance to review the facts
of the case and to retain counsel. This important protection maintains the fairness of civil
litigation.’” Id. (quoting Notaro v. Koch, 95 F.R.D. 403, 405 (S.D.N.Y.1982)). See also USEC Inc.
v. Everitt, No. 3:09-CV-4, 2009 WL 152479, at *3 (E.D. Tenn. Jan. 22, 2009) (adopting the
analysis in Paradise Valley Holdings); Whitfield v. Hochsheid, No. C-1-02-218, 2002 WL
1560267, at *1 (S.D. Ohio July 2, 2002) (imposing a good cause standard).
Other district courts have also identified certain relevant factors. In Yokohama Tire Corp.
v. Dealers Tire Supply, Inc., the district court specified four factors:
(1) irreparable injury, (2) some probability of success on the merits, (3) some
connection between expedited discovery and the avoidance of the irreparable
injury, and (4) some evidence that the injury that will result without expedited
discovery looms greater than the injury that the defendant will suffer if the
expedited relief is granted.
202 F.R.D. 612, 613 (D. Ariz. 2001) (quoting Notaro and noting that Notaro borrowed the test
for granting a preliminary injunction and applied it to a request for expedited discovery).
Similarly, in Meritain Health Inc. v. Express Scripts, Inc., the district court enumerated a different
five factors that have relevance:
(1) whether a preliminary injunction is pending; (2) the breadth of the discovery
requests; (3) the purpose for requesting the expedited discovery; (4) the burden on
the defendants to comply with the requests; and (5) how far in advance of the typical
discovery process the request was made.
No. 4:12-CV-266 CEJ, 2012 WL 1320147, at *2 (E.D. Mo. Apr. 17, 2012) (citing Qwest Comm.
Int'l, Inc. v. WorldQuest Networks, Inc., 213 F.R.D. 418, 419 (D.Colo. 2003)).
Lashuay’s request for expedited discovery is focused solely on identifying the two John
Does mentioned in his amended complaint. He asks that the Court permit him to “immediately
take a F.R.Civ.P. 30(b)(6) deposition and issue subpoenas with short response times in order to
identify the proper parties.” Mot. Exp. Discovery at 3, ECF No. 6. Lashuay contends that “[n]either
the named nor the as yet unnamed Defendants will be harmed by granting Plaintiff’s request to
proceed immediately with discovery for the limited purpose of identifying John Doe Defendants.”
Id. The motion identifies only one reason why the expedited discovery is necessary: “[t]he time
for Plaintiff to identify and substitute actual parties for the John Does is running.” Id. In his
supplemental brief, Lashuay expands upon the perceived urgency of the request: “The matter is
urgent since the Hurley Hospital recommendation was affirmed on 12/14/14, when Defendants
sent him there for reevaluation. Subsequently, the need and recommendation for surgery is noted
repeatedly in Plaintiff’s medical records, but there is no indication who was responsible for failing
or electing not to follow those recommendations.” Supp. Br. Exp. Disc. at 5, ECF No. 37.
The parties agree that the statute of limitations for 42 U.S.C. § 1983 causes of action is
three years. See Def. Resp. Mot. Exp. Disc. at 2, ECF No. 30. And Lashuay appears to be arguing,
in vague terms, that waiting until the typical discovery stage may prevent him from amending his
complaint and identifying the two John Does. But Lashuay’s cursory briefing on this issue does
not suffice to carry his burden of justifying early discovery. According to his amended complaint,
Lashuay was not released from MDOC custody until September 1, 2016. Am. Compl. at 10. His
claims of mistreatment appear to span his entire term of incarceration. Thus, the statute of
limitations time bar does not appear to be imminent.
True, Lashuay’s claims regarding the two John Does appear to center on a recommendation
for surgery which the Hurley Hospital made in December 2014. Id. at 14. But he also contends
that “[i]n January 2015, and continuing thereafter, Defendants denied Hurley’s recommendation
for surgeries.” Id. (emphasis added). Neither party has addressed whether, for statute of limitations
purposes, the MDOC refusal to approve the surgeries should be construed separately from
Lashuay’s other allegations of mistreatment. Even if they are, Lashuay’s complaint alleges that
that refusal was ongoing. Thus, even focusing solely on the January 2015 surgery
recommendation, the statute of limitations deadline does not appear to be looming.
In short, Lashuay has not carried his burden of demonstrating that there is good cause to
depart from the established default timeline for discovery. Lashuay’s concern regarding he statute
of limitations is the only potentially irreparable injury he identifies. There is no motion for a
preliminary injunction pending, no challenge to personal jurisdiction, no class action claims, and
no allegations of infringement or unfair competition. Absent some indication that the statute of
limitations deadline is imminent, then, Lashuay has not identified good cause for expedited
discovery. Lashuay’s motion to commence limited discovery immediately will be denied without
prejudice. If Lashuay can identify additional evidence which would satisfy the good cause
standard, his request may be reconsidered.
Accordingly, it is ORDERED that Plaintiff Lashuay’s motions for leave to commence
limited discovery immediately, ECF Nos. 5, 6, are DENIED without prejudice.
It is further ORDERED that Plaintiff Lashuay’s motion for leave to file a second amended
complaint, ECF No. 39, is SCHEDULED for hearing on February 28, 2018, at 4:00 p.m.
It is further ORDERED that Defendants’ motion to strike the improperly filed second
amended complaint, ECF No. 40, is GRANTED.
It is further ORDERED that the improperly filed second amended complaint, ECF No. 35,
Dated: January 8, 2018
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on January 8, 2018.
KELLY WINSLOW, Case Manager
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