Rhinehart v. Scutt et al

Filing 173

ORDER granting 161 Motion to Lift Stay and Open Discovery ; denying 170 Motion to Strike. Signed by Magistrate Judge Paul J. Komives. (KDoa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KENNETH RHINEHART (#123918),
CASE NO. 2:11-CV-11254
JUDGE STEPHEN J. MURPHY, III
MAGISTRATE JUDGE PAUL J. KOMIVES

Plaintiff,
v.

DEBRA SCUTT, BETH GARDON,
BONNIE CLEMENT (ROBERGEIN),
CONNIE IVES, KAREN HAMBLIN,
JOYCE POTTER, PRISON HEALTH SERVICES, INC.,
AETNA, INC., VERNON STEVENSON,
PADMAJA VEMURI and ADAM EDELMAN,
Defendants,
/
ORDER DENYING PLAINTIFFS’ JANUARY 8, 2014 MOTION TO STRIKE
(Doc. Ent. 170) and GRANTING PHS DEFENDANTS’ DECEMBER 18, 2013 MOTION
TO LIFT STAY AND OPEN DISCOVERY (Doc. Ent. 161)
A.

Rhinehart filed the instant case pro se during March 2011, but he was eventually
represented by counsel.
On March 29, 2011, while incarcerated at G. Robert Cotton Correctional Facility (JCF),

Kenneth A. Rhinehart (#123918) filed a verified, pro se prisoner civil rights complaint against
eleven (11) defendants: Scutt, Gardon, Clement, Ives, Hamblin, Potter (“the MDOC
defendants”); PHS, Stevenson, Vemuri and Edelman (“the PHS defendants”); and Aetna. Doc.
Ent. 1 at 1, 4-5, 8-10.1
On May 3, 2011, this case was reassigned from Judge Duggan to Judge Murphy. Doc.

1

On April 28, 2011, PHS, Vemuri and Edelman filed an answer. Doc. Ent. 20. On May 2,
2011, Stevenson filed an answer. Doc. Ent. 26.
1

Ent. 31. On May 12, 2011, Judge Murphy referred this case to me for pretrial matters. Doc. Ent.
43; see also Doc. Entries 65-66.
In late July 2011, attorney Paul J. Zalewski filed an appearance on plaintiff’s behalf. See
Doc. Entries 75-78.
B.

The Sixth Circuit Affirmed this Court’s January 22, 2012 Order Regarding Plaintiff
Rhinehart’s August 2011 Motion for a Preliminary Injunction.
On January 22, 2012, Judge Murphy entered an order (Doc. Ent. 127) overruling

objections (Doc. Ent. 124), adopting report and recommendation (Doc. Ent. 121), denying pro se
motions for preliminary relief (Doc. Entries 3 & 62) and denying renewed motions for
preliminary relief (Doc. Entries 79 & 82).
On February 20, 2012, plaintiff Rhinehart filed a notice of interlocutory appeal. Doc.
Ent. 128; see also Doc. Entries 129 & 132. However, on January 2, 2013, the Sixth Circuit
affirmed the district court’s order (Doc. Ent. 127) denying plaintiff Rhinehart’s August 2011
motion for a preliminary injunction (Doc. Ent. 82). Doc. Ent. 135; see also Doc. Ent. 136
(Mandate).2
C.

Rhinehart died on February 6, 2013; this case was administratively closed on March
18, 2013; and, on August 13, 2013, the case was reopened.
Rhinehart died on February 6, 2013 at the Duane L. Waters Hospital State Prison. Doc.

Ent. 139-2 (State of Michigan Certificate of Death). On March 18, 2013, Judge Murphy entered
an order (Doc. Ent. 137) administratively closing this case. As a result, six (6) then-pending
motions were terminated:
•

Edelman, PHS and Vemuri’s April 28, 2011 motion to dismiss (Doc. Ent.

2

Case No. 12-1204 (6th Cir.).
2

•
•
•
•

22)
Stevenson’s May 2, 2011 motion to dismiss (Doc. Ent. 28)
Clement, Gardon, Hamblin, Ives, Potter and Scutt’s June 7, 2011 motion
for summary judgment (Doc. Ent. 57)
Aetna’s June 7, 2011 motion to dismiss (Doc. Ent. 58)3
Plaintiff’s February 20, 2012 motions for order to show cause (Doc. Ent.
130, Doc. Ent. 131)

On August 13, 2013, Judge Murphy entered an order (Doc. Ent. 154) reopening the case,
granting David L. Rhinehart and Lewis Rhinehart’s May 23, 2013 motion to substitute party
(Doc. Ent. 139) and denying in part and granting in part plaintiffs’ June 22, 2013 motion to strike
(Doc. Ent. 145).4 As a result, Rhinehart’s brothers (David and Lewis), as personal
representatives for the Estate of Kenneth A. Rhinehart, were substituted as plaintiffs and parties
for Kenneth Rhinehart.
D.

Currently, Three Motions Are Pending.
On September 16, 2013, Judge Murphy again referred this case to me for pretrial matters.

Doc. Ent. 160. Currently pending before the Court are three (3) motions:
1.

On May 23, 2013, plaintiffs David Rhinehart and Lewis Rhinehart, via counsel, filed a

motion (Doc. Ent. 141) for leave to file an amended complaint.
On May 31, 2013, the PHS defendants filed a response (Doc. Ent. 142); on June 10,
2013, Aetna filed a response (Doc. Ent. 143); and, on June 11, 2013, the MDOC defendants filed

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In Aetna’s June 7, 2011 motion to dismiss, it argued that: (1) Rhinehart Has Failed To
Allege That A Policy Or Custom Of Aetna Caused The Alleged Injury; (2) Rhinehart Has Failed To
Allege Aetna Acted Under Color Of State Law; and (3) Rhinehart Has Failed To Exhaust His
Administrative Remedies, Including As To Any Claims Against Aetna. Doc. Ent. 58 at 3.
4

On June 22, 2013, plaintiffs filed a motion (Doc. Ent. 145) which, in part, sought to strike
certain responses (Doc. Entries 142, 143, 144). Briefing on this motion occurred. See Doc. Entries
146-153.
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a concurrence and joinder (Doc. Ent. 144) with the PHS defendants’ response (Doc. Ent. 142).
By way of the Court’s August 13, 2013 order (Doc. Ent. 154 at 2), the Court will also
consider plaintiffs’ June 22, 2013 proposed reply (Doc. Ent. 145-1). In addition, on August 18,
2013, plaintiffs filed an exhibit to their reply. Doc. Ent. 158; see also Doc. Ent. 159.
2.

On December 18, 2013, the PHS defendants filed a motion (Doc. Ent. 161) to lift stay

and open discovery. Specifically, the PHS defendants seek to lift the stay of discovery sought by
their May 23, 2011 motion (Doc. Ent. 54) and granted by the Court’s November 21, 2011 order
(Doc. Ent. 114). Doc. Ent. 161 ¶¶ 5, 9.
Plaintiffs responded on January 1, 2014. Doc. Ent. 162; see also Doc. Ent. 163 (Brief),
164 (Report of February 8, 2013 Autopsy), 165 (Exhibits A-GG) & 166 (Certificate of Service).
By their response, plaintiffs ask the Court to either (A) “Deny Defendants Motion to Lift Stay
and Open Discovery until such time as this Honorable Court grants Plaintiff’s Motion for Leave
to File Amended Complaint,” or (B) “Grant Plaintiff’s Motion for Leave to File Amended
Complaint, and immediately schedule a discovery conference with this Honorable Court so that
discovery may properly be conducted on Plaintiff’s Amended Complaint[.]” Doc. Ent. 162 at 5.
The MDOC defendants responded on January 3, 2014. Doc. Ent. 168.5 They request that
the Court “maintain the stay of discovery until such time as the pending dispositive motions are
resolved.” Doc. Ent. 168 at 3.
Defendant Aetna responded on January 7, 2014. Doc. Ent. 169. By this filing, Aetna

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On January 2, 2014, the MDOC defendants filed a motion (Doc. Ent. 167) for a one day
enlargement of time to file their response in opposition to co-defendants’ motion to lift stay and
open discovery (Doc. Ent. 161). On January 8, 2014, I granted this motion. Later, on January 11,
2014, Judge Murphy entered a stipulated order permitting the MDOC defendants a one day
enlargement of time (until Friday, January 3, 2014) to file their response. Doc. Ent. 172.
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asks the Court to deny the PHS defendants’ motion (Doc. Ent. 161) and grant Aetna’s June 7,
2011 motion to dismiss (Doc. Ent. 58). Doc. Ent. 169 at 2.
On January 8, 2014, the PHS defendants filed a reply. Doc. Ent. 171. Therein, the PHS
defendants request that the Court deny plaintiffs’ motion for leave to file an amended complaint
(Doc. Ent. 141) and, instead, grant the PHS defendants’ April and May 2011 motions to dismiss
(Doc. Entries 22 and 28) OR grant the PHS defendants’ December 18, 2013 motion to lift stay
and open discovery (Doc. Ent. 161). See Doc. Ent. 171 at 3.
Upon consideration, the PHS defendants’ December 18, 2013 motion to lift stay and open
discovery (Doc. Ent. 161) is granted. The Court’s November 21, 2011 order stayed discovery
pending resolution of the then-pending dispositive motions, which included defendants’ April,
May and June 2011 dispositive motions (Doc. Entries 22, 28, 57 & 58). Doc. Ent. 114 at 7. As
noted above, defendants’ April, May and June 2011 dispositive motions (Doc. Entries 22, 28, 57
& 58) were terminated when the case was administratively closed on March 18, 2013.
3.

On January 8, 2014, plaintiffs filed a motion (Doc. Ent. 170) to strike defendant Aetna’s

January 7, 2014 response (Doc. Ent. 169) in opposition to the PHS defendants’ December 18,
2013 motion (Doc. Ent. 161) to lift stay and open discovery.
By this motion (Doc. Ent. 170), plaintiffs ask this Court to strike Aetna’s improperly
filed response (Doc. Ent. 169) on the bases that it (1) was filed “without first seeking the consent
of the parties for the late filing of their response to this motion, and without seeking leave from
this Honorable Court[;]” (2) “is merely a transparent attempt to bolster their now stagnant and
irrelevant Motion to Dismiss Complaint which was filed back on June 7, 2011 [Doc. Ent. 58][;]”
and (3) “was not filed within 14 days from the date the motion was served as required by LR 7.1

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(e) (2) (B).” Doc. Ent. 170 at 3 ¶¶ 4, 5 & 7.6
Upon consideration, plaintiffs’ January 8, 2014 motion to strike (Doc. Ent. 170) is
denied. First, although tardy, Aetna’s response is only one (1) day late. The PHS defendants
filed their motion on December 18, 2013 (Doc. Ent. 161). Pursuant to E.D. Mich. LR
7.1(e)(2)(B) (14 days); Fed. R. Civ. P. 6(a)(6) (“‘Legal Holiday’ Defined.”); Fed. R. Civ. P. 6(d)
(“Additional Time After Certain Kinds of Service.”); and Fed. R. Civ. P. 6(a)(1)(C), responses
were due on or about Monday, January 6, 2014. I decline to grant the instant motion solely on
the procedural basis that the filing is one day late.
Moreover, there does not appear to be a substantive basis upon which plaintiffs might
seek to strike Aetna’s January 7, 2014 response (Doc. Ent. 169). Specifically, Aetna’s January
7, 2014 response (Doc. Ent. 169) concerns the PHS defendants’ December 18, 2013 motion
(Doc. Ent. 161) to lift the stay - sought on May 23, 2011 by the PHS defendants’ motion (Doc.
Ent. 54) and granted by the Court’s November 21, 2011 order (Doc. Ent. 114) - and open
discovery. Aetna’s January 7, 2014 response (Doc. Ent. 169) - which relies on Aetna’s June 10,
2013 response (Doc. Ent. 143) to plaintiffs’ motion for leave to amend (Doc. Ent. 141) - simply
concludes that “The Motion to Lift Stay and Open Discovery [Doc. Ent. 161] should be denied,
and the Court should grant Aetna’s pending Motion to Dismiss [Doc. Ent. 58][,]” Doc. Ent. 169
at 2. Here, I note that plaintiffs have filed (a) their own matters (Doc. Entries 142, 145-1, 158 &
159) related to plaintiffs’ May 23, 2013 motion for leave to file an amended complaint (Doc.
Ent. 141) and (b) their own January 1, 2014 responses (see Doc. Entries 162-166) related to the

6

Plaintiffs also note that Aetna consented to the MDOC defendants’ January 2, 2014 motion
for extension of time (see Doc. Entries 167 & 172) but did not seek an extension to file their own
response. Doc. Ent. 170 ¶ 6.
6

PHS defendants’ December 18, 2013 motion (Doc. Ent. 161).
Finally, to the extent plaintiffs are concerned about any January 7, 2014 attempt by Aetna
(Doc. Ent. 169) to revitalize argument(s) initiated in its June 7, 2011 motion to dismiss (Doc.
Ent. 58),7 such dispositive motion was terminated by the Court’s March 18, 2013 administrative
closure of this case (see Doc. Ent. 137). Should the parties decide to refile any of the motions
which were terminated by the administrative closure of this case, responsive briefing will start
anew.
E.

Order
Accordingly, plaintiffs’ January 8, 2014 motion to strike (Doc. Ent. 170) is DENIED.

The Court will consider defendant Aetna’s January 7, 2014 response (Doc. Ent. 169) in the
Court’s disposition of the PHS defendants’ December 18, 2013 motion (Doc. Ent. 161).
Furthermore, the PHS defendants’ motion to lift stay and open discovery (Doc. Ent. 161)
is GRANTED. Plaintiffs’ motion for leave to file an amended complaint (Doc. Ent. 141) will be
addressed under separate cover. Once the Court rules upon that motion plaintiffs’ motion (Doc.
Ent. 141), the parties will be required to execute their responsibilities under Fed. R. Civ. P. 26,
whether in relation to the original March 29, 2011 complaint (Doc. Ent. 1) or any amended
complaint permitted to be filed.

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As to Aetna’s June 7, 2011 dispositive motion (Doc. Ent. 58), I note that plaintiff Kenneth
A. Rhinehart filed an August 30, 2011 response (Doc. Ent. 86).
Approximately two (2) years later, in Aetna’s June 10, 2013 response to plaintiffs’ May 23,
2013 motion to amend, Aetna cites Moses v. Prison Health Services, Inc., Case No. 11-1507 (6th Cir.
Dec. 16, 2011) and asserts that the Court should grant Aetna’s June 7, 2011 motion to dismiss (Doc.
Ent. 58). Doc. Ent. 143 at 2 n.1; see also Doc. Ent. 143-1.
Then, in Aetna’s January 7, 2014 response (Doc. Ent. 169) to the PHS defendants’ December
18, 2013 motion (Doc. Ent. 161), Aetna contends that “Moses controls and requires the dismissal
of the Complaint as to Aetna.” See Doc. Ent. 169 at 1-2.
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However, the parties should refrain from engaging in discovery and filing dispositive
motions until the Court has ruled upon plaintiffs’ May 23, 2013 motion for leave to file an
amended complaint (Doc. Ent. 141).
IT IS SO ORDERED.
The attention of the parties is drawn to Fed. R. Civ. P. 72(a), which provides a period of
fourteen (14) days from the date of service of a copy of this order within which to file an appeal
for consideration by the district judge under 28 U.S.C. § 636(b)(1).

Date: January 15, 2014

s/Paul J. Komives
PAUL J. KOMIVES
UNITED STATES MAGISTRATE JUDGE

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing Order was served upon counsel of record via the Court's ECF System to their
respective email addresses or First Class U.S. mail to the non-ECF participants on January 15, 2014.
s/ Kay Doaks
Case Manager

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