Boone v. Heyns et al
Filing
274
ORDER granting 234 Motion to Dismiss; granting 225 Motion to Dismiss; denying without prejudice 261 Motion to Amend/Correct; granting 218 Motion to Dismiss; denying 250 Motion for TRO; denying 264 Motion for Order to Show Cause; denying 220 Motion for HIPAA Disclosure. Signed by District Judge Arthur J. Tarnow. (MLan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RICHARD BOONE, II,
Case No. 12-14098
SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW
Plaintiff,
v.
U.S. MAGISTRATE JUDGE
MONA K. MAJZOUB
DANIEL HEYNS, ET. AL.,
Defendant.
/
ORDER
1. GRANTING DEFENDANTS HEYNS, STIEVE, HUNTER, BEALS, UPSTON, WEISS,
COULING, WILSON, ROHRIG, KINDER, AND BORGERDING’S MOTION TO
DISMISS [234];
2. GRANTING DEFENDANTS COULING AND WILSON’S MOTION TO DISMISS
[225]
3. DENYING WITHOUT PREJUDICE PLAINTIFF’S MOTION TO AMEND
COMPLAINT [261]
4. GRANTING DEFENDANTS CORIZON, MILES, SQUIER, LYBARGER,
OULLETTE, BOMMERSHINE’S MOTION TO DISMISS [218]
5. DENYING PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER
[250]
6. DENYING PLAINTIFF’S MOTION TO SHOW CAUSE WHY THE MDOC AND
CORIZON DEFENDANTS AND/OR THEIR AGENTS SHOULD NOT BE HELD IN
CONTEMPT OF COURT [264]
7. DENYING DEFENDANTS’ MOTION FOR HIPAA DISCLOSURE ORDER [220]
Plaintiff filed his initial complaint on September 14, 2012, alleging violations
of the Eighth Amendment and 42 U.S.C. §1983. At the time of his filing, Plaintiff
was incarcerated at G. Robert Cotton Correctional Facility (JCF) in Jackson,
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Michigan, and is currently incarcerated at the Carson City Correctional Facility
(DRF). Plaintiff filed an Amended Complaint [196] on July 23, 2013.
Defendants Corizon, Miles, Squier, Lybarger, Oullette, and Bommershine filed
a Motion to Dismiss Counts III-VIII on July 22, 2016 [218]. Plaintiff responded on
August 4, 2016 [221], and Defendants replied [226] on August 12, 2016. Defendants
Heyns, Stieve, Hunter, Beals, Upston, Weiss, Couling, Wilson, Rohrig, Kinder, and
Borgerding filed a Motion to Dismiss [234] on August 26, 2016. Plaintiff responded
[240] on September 16, 2016, and Defendants replied [242] on October 17, 2017.
Defendants Couling and Wilson filed a Motion to Dismiss [225] on August 11, 2016.
Plaintiff responded [232] on August 25, 2016, and Defendants replied [237] on
September 12, 2016. Plaintiff filed a supplemental response [241] to Defendant's
Couling and Wilson's Motion to Dismiss on October 2, 2016.
Defendants Corizon, Miles, Squier, Lybarger, Oullette, and Bommershine filed
a Motion for HIPAA Disclosure Order [220] on August 4, 2016. Plaintiff responded
on August 15, 2016 [227], and Defendants replied [231] on August 24, 2016. Plaintiff
filed a Motion for a Temporary Restraining Order [250] on February 7, 2017.
Defendants filed responses [252; 253] on February 21, 2017. Plaintiff filed a second
Motion for Leave to Amend and Supplement the Complaint pro se [261] on March
23, 2017. On March 31, 2017, Plaintiff also filed a Motion to Show Cause why the
MDOC and Corizon Defendants and/or their Agents should not be held in contempt of
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Court pro se [264] and a Motion to Strike Corizon Defendants’ Response, Docket
Number 253 [266].1
The Court finds the motion suitable for determination without a hearing with
respect to all of Plaintiff’s claims, in accord with Local Rule 7.1(f)(2). For the
reasons stated below, Defendants’ Motions to Dismiss [218; 225; 234] are
GRANTED. Defendants Corizon, Miles, Squier, Lybarger, Oullette, and
Bommershine’s Motion for HIPAA Disclosure Order [220] is DENIED.
Plaintiff’s Motion to Amend Complaint [261] is DENIED without prejudice.
Plaintiff may refile a Motion to Amend that complies with local rule 15.1, and that
comports with the findings of this order as described below. Plaintiff’s Motion to
Show Cause why Defendants should not be held in contempt of Court [264] and
Motion for a Temporary Restraining Order [250] are DENIED.
STATEMENT OF FACTS
Plaintiff’s claims arose while he was confined at the Michigan Department of
Corrections Reception and Guidance Center (RGC), and the G. Robert Cotton
Correction Facility (JCF).
At RGC on May 13, 2008, Plaintiff had a special
accommodation notice (SAN) issued without a stop date for, inter alia, an air
mattress. On March 3, 2012, Plaintiff alleges that he was called to medical at JCF to
exchange his air mattress because his had a hole in it, causing him pain in his hips.
1
The only filings done pro se at issue in this Order are referred to as such. All other
Motions and filings were done through appointed counsel.
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However, when he arrived, he was met by a Defendant Beals, who allegedly informed
Plaintiff that she would not order any more air mattresses, and that they were not
going to hand out any more air mattresses in the future.
Plaintiff alleges that his SAN for the air mattress, which previously had no stop
date issued, had a stop date issued that day, despite the fact that Plaintiff alleges he
had not seen a medical practitioner prior to this who ordered this stop date, in
violation of MDOC Policy Directive 04.06.160. Plaintiff wrote several letters to
Defendant agents of the MDOC, and filed grievances over the next few months about
the situation, all of which were denied. Plaintiff alleges that the denial of his air
mattress has caused him constant pain and sleep deprivation. His complaint also
incorporates claims based upon the treatment he received for his other serious medical
issues, that include sleep apnea, the removal of hardware from his left knee, a left
knee brace accommodation, right foot palsy and kidney stones.
Plaintiff is seeking relief from eighteen Defendants, including, inter alia,
agents of the MDOC, the Medical Contractor company CORIZON, that has
contracted with the State of Michigan to provide health care to inmates, and
employees of CORIZON.
Plaintiff’s claims are the following: violations of the
Eighth Amendment, due to prison conditions constituting “cruel and unusual
punishment” and policy/custom/practice that deliberately denied and/or delayed
Plaintiff’s access to required medical care; violations of due process and equal
protection under the Fourteenth Amendment; retaliation under the First Amendment;
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civil conspiracy; intentional infliction of emotional distress; totality of the conditions;
and negligence and/or medical malpractice.
1. DEFENDANTS CORIZON, MILES, SQUIER, LYBARGER, OULLETTE, AND
BOMMERSHINE MOTIONS TO DISMISS COUNTS III-VIII [218]
LEGAL STANDARD
Defendants move to dismiss Counts III-VIII of Plaintiff’s amended complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6). On a Rule 12(b)(6) motion to
dismiss, the Court must “assume the veracity of [the plaintiff’s] well-pleaded factual
allegations and determine whether the plaintiff is entitled to legal relief as a matter of
law.” McCormick v. Miami Univ., 693 F.3d 654, 658 (6th Cir. 2012) (citing Ashcroft
v. Iqbal, 556 U.S. 662, 679 (2009); Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.
1993)).
a. COUNT III: DUE PROCESS AND EQUAL PROTECTION CLAIMS UNDER
THE 14TH AMENDMENT
i. DUE PROCESS
Plaintiff brings a claim of violation of due process concerning the removal of
Plaintiff’s CPAP machine and air mattress. Defendants challenge this claim on the
basis that the remedy for a prisoner’s §1983 deliberate indifference to serious medical
needs is found in the Eighth Amendment, while a pretrial detainee may find relief in
the Fourteenth Amendment Due Process clause. Phillips v. Roane County, 534 F. 3d
531 (6th Cir. 2008). Plaintiff contends that this misrepresents the state of the law, and
that under Sandin v. Conner, 515 U.S. 472, 484 (1995), the Court must ask if the
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Plaintiff has alleged that Defendants’ actions imposed an atypical and significant
hardship in relation to the ordinary incidents of prison life. See also Jennings v.
Bradley, 419 F. App’x 594, 597 (6th Cir. 2011).
Plaintiff’s position does not address the argument presented by Defendants. It is
clear that Plaintiff’s due process claim relates to an alleged claim of deliberate
indifference to serious medical needs. In the Sixth Circuit, the Eighth Amendment’s
prohibition on cruel and unusual punishment provides the basis for a §1983 claim of
deliberate indifference to serious medical needs for a prisoner, while the due process
clause protects pretrial detainees. See e.g. Carl v. Muskegon Cty., 763 F.3d 592, 595
(6th Cir. 2014); Stefan v. Olson, 497 F. App'x 568, 576 (6th Cir. 2012).
Significantly, the case that Plaintiff cites from the Sixth Circuit to support his
argument did not reflect a due process claim for deliberate indifference to medical
needs, but rather concerned liberty interests in a challenge to placement in a Cell Slot
Management program as an atypical and significant hardship, and is therefore not
persuasive in this case. Jennings v. Bradley, 419 F. App'x 594, 597 (6th Cir. 2011). In
Count I Plaintiff has already alleged an Eighth Amendment violation under the cruel
and unusual punishment theory relating to his medical care, including denying him
access to his CPAP and air mattress. The relief is properly sought under the Eighth
Amendment rather than the Fourteenth Due Process, and therefore Plaintiff’s
Fourteenth Amendment Due Process claim is dismissed as to all Defendants.
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ii. EQUAL PROTECTION
In Count III, Plaintiff alleges that the intentional and deliberate deprivation of
his air mattress, while other similarly situated individuals were allowed an air
mattress, violated his rights under the Equal Protection Clause of the Fourteenth
Amendment. “The Equal Protection Clause prohibits discrimination by government
which burdens a fundamental right, targets a suspect class, or intentionally treats one
differently than others similarly situated without any rational basis for the difference.”
Bench Billboard Co. v. City of Toledo, 499 F. App'x 538, 547 (6th Cir. 2012).
It is undisputed that Plaintiff is not a member of a protected class; therefore, for
his claim to survive, it must be prevail under a class of one theory. To successfully
plead an equal protection claim as a class of one, Plaintiff must allege that “[he] and
other individuals who were treated differently were similarly situated in all material
respects.” Id. Additionally, Plaintiff must show that the governmental entity “treated
them differently without rational basis.” TriHealth, Inc. v. Bd. of Comm'rs, Hamilton
Cty., Ohio, 430 F.3d 783, 788 (6th Cir. 2005).
Plaintiff alleges that he has met this standard by, inter alia, providing an
affidavit from a fellow prisoner who still has his air mattress. Plaintiff has not done
this in the complaint. To factually plead that a similarly situated individual was treated
differently, Plaintiff relies upon exhibits to his complaint, constituting an affidavit
from a fellow prisoner who was allowed to have an air mattress was diagnosed with
cancer. [2 at Pg ID 129]. Plaintiff is a person who underwent hip surgery, while the
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Affiant is a cancer patient- these two are not similarly situated with respect to their
need of an air mattress for medical reasons. Therefore, Plaintiff has not pled facts to
support an equal protection claim and this count is dismissed as to all Defendants.
b. COUNT IV: FIRST AMENDMENT RETALIATION AS AGAINST
DEFENDANT MILES
Plaintiff alleges, as to Defendant Miles, that he:
intentionally delay[d], den[ied], and or refuse[d] to treat Plaintiff’s
medical needs in retaliation of Plaintiff’s protective conduct, redress of
grievance guaranteed by the [First Amendment], while leaving Plaintiff
in an ‘unnecessary and wanton infliction’ of physical, mental, and
emotional pain and suffering and depriving Plaintiff of sleep.
[196 at ¶70]. Defendant seeks dismissal of the claim because, inter alia, it is
undisputed that Defendant Miles did continue to provide medical treatment to Plaintiff
after he filed grievances, and it is also undisputed that the alleged medical deprivation
began before any grievances were filed, and therefore there is no casual connection.
“A retaliation claim essentially entails three elements: (1) the plaintiff engaged
in protected conduct; (2) an adverse action was taken against the plaintiff that would
deter a person of ordinary firmness from continuing to engage in that conduct; and (3)
there is a causal connection between elements one and two—that is, the adverse action
was motivated at least in part by the plaintiff's protected conduct.” Thaddeus-X v.
Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc).
In this case, there is no factual allegation addressing causation. Plaintiff filed
his first grievance against Defendant Miles on July 4, 2011 [1 at ¶74-78]. However,
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the complaint alleges that he was deprived of medical care commencing on June 17,
2011, when Defendant Miles allegedly refused to look at Plaintiff’s medical
documentation concerning his need for removal of hardware from his knee, a knee
brace, an AFO brace and CPAP machine. [1 at ¶¶74-75]. Plaintiff also alleges that, on
June 30, 2011, he learned that, while Defendant Miles told him at that June 17, 2011
meeting that he would refer Plaintiff to physical therapy and take other action
concerning his medical complaints, nothing was done for his health care. [1 at ¶¶7677]. It was this initial alleged deprivation of medical care that caused Plaintiff to file
his first grievance against Defendant Miles on July 4, 2011. [1 at ¶78].
Further, it is undisputed that Defendant Miles did continue to provide medical
care to Plaintiff following his filing of several grievances against him. Defendant
Miles provided Plaintiff with Vicodin for kidney stone pain, requested a referral to a
urologist, referral to a respiratory therapist, wrote an order for an AFO, and submitted
a request for hardware removal [1 at ¶¶93, 94, 112, 114, 121, 137, 145]. The fact that
Plaintiff alleges that the denial/refusal of treatment began before the grievances were
filed, coupled with the fact that he continued to receive treatment and referrals for
further medical care by Defendant Miles after the filing of the grievances, does not
support a retaliation claim because there is no causation pled in the complaint. These
allegations surround a seeming disagreement over the treatment, and allegations of
deliberate indifference over that medical response, which are properly brought in
Plaintiff’s Eighth Amendment deliberate indifference claim against Defendant Miles
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in Count I. Therefore, Plaintiff’s retaliation claim against Defendant Miles is
dismissed.
c. COUNT V: CIVIL CONSPIRACY AS AGAINST DEFENDANT MILES
In Plaintiff’s claim of civil conspiracy as to Defendant Miles, he alleges that
Miles condoned and conspired to cover up the alleged falsification of medical
documents, and canceled and/or unlawfully confiscated Plaintiff’s air mattress.
Defendant claims that this count should be dismissed because, inter alia, “a
corporation cannot conspire with its own agents or employees.” Hull v. Cuyahoga
Valley Joint Vocational Sch. Dist. Bd. of Educ., 926 F.2d 505, 509 (6th Cir. 1991).
Since the claim is raised against MDOC and Corizon employees, who are all agents of
the State of Michigan with respect to providing appropriate conditions to incarcerated
individuals, they are thus all the same “person” and the intracorporate conspiracy
doctrine applies, so this claim should be dismissed.
In response, Plaintiff argues first that this should be the subject of a Rule 56
motion because it does not concern the sufficiency of the complaint. Plaintiff also
contests that Corizon is an agent of the state, and instead argues that it is an
independent contractor with the MDOC. However, it is clear that Corizon and its
employees are agents of state and considered state actors, otherwise Plaintiff would
not be able to bring §1983 claims against them.
It is settled in the Sixth Circuit that Corizon and its employees are indeed
agents of the state in relation to their contracts with the MDOC. See e.g Hodges v.
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Corizon, No. 14-11837, 2015 WL 1511153, at *4 (E.D. Mich. Mar. 30, 2015) (citing
Street v. Corr. Corp. of Am., 102 F.3d 810, 817–18 (6th Cir.1996)) (stating that
Corizon is an agent of the state and a state actor for purposes of §1983 in relation to
their contracts with the MDOC). Therefore, the intracorporate conspiracy doctrine
applies, and under the Sixth Circuit’s “general rule in civil conspiracy cases that a
corporation cannot conspire with its own agents or employees,” this count must be
dismissed.
d. COUNT VIII: NEGLIGENCE AND MEDICAL MALPRACTICE AS
AGAINST ALL INDIVIDUAL DEFENDANTS; COUNT VI: INTENTIONAL
INFLICTION OF EMOTIONAL DISTRESS (IIED) AS AGAINST ALL
INDIVIDUAL DEFENDANTS
Defendants argue that Plaintiff’s count VIII of negligence and medical
malpractice and count VI of IIED should be dismissed, because these claims sounds in
medical malpractice and Plaintiff failed to comply with the substantive requirements
for Michigan medical malpractice claims. Plaintiff argues that the Court should find
these requirements to be procedural, and thus inapplicable in federal court under
Federal Rule of Civil Procedure 8(a). Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct.
817 (1938).2
2
Plaintiff does not dispute that these claims would require medical malpractice filing
requirements under state law and that these requirements were not met. Therefore,
any argument against this assertion made by Defendants in their Motion is deemed
conceded and waived, and the Court will consider only whether Michigan’s filing
requirements for medical malpractice claims are procedural or substantive. See
McPherson v. Kelsey, 125 F. 3d 989, 995-96 (6th Cir. 1997).
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The Court has previously considered this precise issue and held that these
requirements are substantive. See Bade v. United States, No. 11-10780, 2012 WL
1555072 (E.D. Mich. May 1, 2012) (per Judge Tarnow). The Court is not persuaded
that these requirements are procedural, in the face of Michigan Court holdings and the
previous analysis under Erie, which concluded that the requirements are procedural,
would be outcome determinative, encourage forum shopping, and lead to inequitable
administration of law. Id at *8-10. Therefore, the Court finds that the medical
malpractice filing requirements are substantive and Counts VIII and VI must
accordingly be dismissed against all Defendants for failing to meet the medical
malpractice filing requirements under MCL §600.2912b and 600.2912d.
e. COUNT VII: TOTALITY OF THE CIRCUMSTANCES AS AGAINST ALL
DEFENDANTS
In Count VII, Plaintiff alleges that “[t]he totality of the aforesaid acts and/or
omissions of the individual Defendants amounts to clear violations fobidded (sic) by
the U.S. Constitution.” [196 at §82]. Defendants construe this as an Eighth
Amendment conditions of confinement claim. Defendants argue that this count must
be dismissed because, inter alia, Plaintiff has failed to allege, with any specificity, the
elements needed to support his claim, and that his pleading contains only his personal
opinions which are insufficient to state a claim or satisfy federal notice pleading
requirements. Saltire Indus, Inc. v. Waller, Lansden, Dortch & Davis, PLLC, 491 F.
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3d 522, 526 (6th Cir. 2007) (citing Scheid v. Fanny Farmer Candy Shops, Inc., 859 f.
2d 434, 436 (6th Cir. 1988)).
Plaintiff did not refute this argument in his response brief, therefore these
arguments are deemed conceded and waived, and Count VII is dismissed as to all
Defendants. See McPherson v. Kelsey, 125 F. 3d 989, 995-96 (6th Cir. 1997).
2. DEFENDANTS COULING AND WILSON’S MOTION TO DISMISS BASED ON THE
STATUTE OF LIMITATIONS AND INSUFFICIENT SERVICE OF PROCESS [225]
Defendants Couling and Wilson filed a Motion to Dismiss based on the Statute
of Limitations and Insufficient Service of Process [225] on August 11, 2016.3
Plaintiff, through counsel, responded [232] on August 25, 2016, and Defendants
replied [237] on September 12, 2016. Plaintiff, through counsel, filed a supplemental
brief on the issue of insufficient service of process [241] on October 2, 2016.
Defendants responded to these arguments in their reply brief concerning Defendants
Heyns, Stieve, Hunter, Beals, Upston, Weiss, Couling, Wilson, Rohrig, Kinder, and
Borgerding Motions to Dismiss [242] on October 17, 2016.
STATEMENT OF FACTS
Plaintiff filed his initial complaint on September 14, 2012. When this complaint
was filed, he served the 12 Defendants named in the original complaint. [6-18].
Plaintiff filed a Motion to Amend the Complaint [55] on January 28, 2013. Sometime
between the time the Motion to Amend was filed and the Motion was granted,
3
Defendants Rohrig, Kinder and Borgerding join in the statute of limitations
argument made by Defendants Couling and Wilson [234 at 3].
Page 13 of 30
Plaintiff states that he served the Defendants individually with a copy of the Amended
Complaint, a Notice of Law Suit, and a Request to Waive Service of Summons with a
pre-paid self-addressed stamped envelope with return service. [202]. The Court
granted Plaintiff’s Motion to Amend [73] on July 25, 2013. This amended complaint
included Couling, Wilson, Rohrig, Kinder and Borgerding, who were not parties in
the initial complaint. On the same day that the Motion to Amend Complaint was
entered, the Court stayed the case pending appointment of counsel for the Plaintiff.
[73].
While the case was stayed, the Plaintiff continued to file several pro se filings.
He filed a Motion asking, inter alia, that his Motion for Injunctive Relief be granted
[75]. He moved again for injunctive relief on October 15, 2013 [79], and raised the
issue again in a letter to the Court on December 12, 2013 [84]. The Court set a status
conference for December 19, 2013 [80]. At the end of this conference, Defendants
were ordered to provide Plaintiff a knee brace and air mattress before December 26,
2013. [81].
Motion practice continued on both sides from December 19, 2013 until January
22, 2014 when Plaintiff was provided pro bono counsel. [82-99]. The Court denied
Defendants’ Motion to Enforce Stay [102] on January 24, 2013, stating that the public
interest and the irreparable harm at risk for Plaintiff meant that the stay had been lifted
at the Court’s discretion. Following the lifting of the stay, motion practice continued
by both parties, including pro se motions by Plaintiff, and others through counsel for
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10 months. There was never any attempt to serve any of the newly added Defendants
during this time.
On December 2, 2014 Plaintiff sent then-MDOC attorney James Farrell an
email, through a family member, asking if he was planning to file an appearance on
behalf of the newly added Defendants, and stating that if he did not, Plaintiff would
seek default judgment. [241-1]. Plaintiff wrote James Farrell via U.S. mail on
December 21, 2014, again stating that he would file a Motion for Default Judgment
against those Defendants if Ferrell did not enter an appearance.
The case continued to be active, with many filings continuously being made,
until the Court stayed the case on March 27, 2015. [136-173]. Plaintiff was appointed
a new counsel during this time as well. [156]. Service again was never attempted.
Despite this stay, Plaintiff continued to file Motions, despite the fact that the basis for
the stay (the Sixth Circuit Appeal) was still pending.
On September 29, 2015, Plaintiff filed a Request for Clerk’s Entry of Default
against Defendants Burns, Couling, Kinder, Rohrig, and Wilson, despite never having
served these Defendants. Plaintiff filed a pro se Motion to effect service by the US
Marshalls [202] on October 16, 2015. A third order for appointment of counsel was
entered on November 24, 2015, and counsel’s office entered its appearance on
November 30, 2015. [203; 204]. On July 1, 2016, summons were re-issued for the
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Defendants at issue in this motion. Defendants were served in late July and early
August.4
ANALYSIS
It is undisputed that at the time that Plaintiff’s amended complaint was filed,
the Federal Rules of Civil Procedure (Fed. R. Civ. P.) 4(m) allowed120 days to serve
his summonses. Plaintiff’s amended complaint was filed on July 25, 2013 [73].
Service was not completed until various dates in 2016, well outside of 120 days.
Defendants argue that they must be dismissed because Plaintiff took approximately
1000 days before attempting to serve Defendants with his allegations concerning
events that took place over five years previously. Plaintiff requests that the Court use
its discretion to extend the time for service of process under Fed. R. Civ. P. 4(m),
even if it finds that Plaintiff lacks good cause. See Slenzka v. Landstar Ranger, Inc.,
204 F.R.D. 322, 326 (E.D. Mich. 2001).
District courts in this circuit have agreed that the 1993 Amendments to Rule 4,
the Advisory Committee Notes concerning the amendments, and the Supreme Court’s
decision in Henderson v. United States, 517 U.S. 654, 116 S. Ct. 1638, 134 L.Ed.2d
880 (1996) provide Courts discretion under Rule 4(m) to grant an extension of time,
even in the absence of showing good cause. See Elec. Workers Local 58 Pension Tr.
4
Outside of Defendant Rohrig, there is an argument that the remaining Defendants
were not served properly, because the summons were improperly sent via certified
mail, without restricted delivery to the addressees. This was not addressed by the
Plaintiff, and is irrelevant to the analysis below.
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Fund v. Rite Elec. Co., No. 10-CV-11815, 2010 WL 4683883, at *2 (E.D. Mich. Nov.
10, 2010)(collecting cases). The Court finds this reasoning persuasive, and agrees that
the time for serving a Defendant may be extended even in cases where good cause is
missing. However, this discretion lies solely in the hands of the Court, and absent a
show of good cause for delay, there is no guarantee that an extension will be granted.
In this case, the Court does not believe that there is a showing of good faith to
automatically extend the time for Plaintiff to serve Defendants. First, the delay of
nearly 1000 days from the time the amended complaint was filed to the attempted
service of Defendants, is extreme. Additionally, while Plaintiff was proceeding pro se
for some of the time, Plaintiff was represented by various counsel for the majority of
that time, and there is no excuse presented for why service was not attempted earlier.
While Plaintiff states in is Motion to Effectuate Service that he informed his previous
attorneys of the problem with service, they failed to respond or take action. The very
fact that Plaintiff filed that pro se motion shows that he knew what type of action to
take. [202]. Plaintiff provides no reason why it took him two years to file a pro se
Motion to Effectuate Service when he was actively engaged in filing throughout the
case, even when the case was stayed. This Motion illustrates that Plaintiff had been
aware of the service issue the entire time, since his initial service was never returned.
The Court will thus continue to address whether it will exercise its discretion to
extend the dates for service.
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When considering whether to exercise discretion, courts in this district consider
five factors, including whether:
(1) a significant extension of time was required; (2) an extension of time
would prejudice the defendant other than the inherent “prejudice” in
having to defend the suit; (3) the defendant had actual notice of the
lawsuit; (4) a dismissal without prejudice would substantially prejudice
the plaintiff; i.e., would his lawsuit be time-barred; and (5) the plaintiff
had made any good faith efforts at effecting proper service of process.
Slenzka v. Landstar Ranger, Inc., 204 F.R.D. 322, 326 (E.D. Mich. 2001)(citing Wise
v. Dep't of Defense, 196 F.R.D. 52, 55 (S.D.Ohio 1999)). The first factor weighs in
favor of the Defendants, as there has been a delay of close to three years, requiring a
significant extension of over 900 days. The extension would prejudice the Defendants,
because the claims stem from events that took place in 2011. Considering the long
delay in service, Defendants have a possibility of prejudice as a result of loss of
memory, as well as possible loss of evidence from events that took place over five
years ago.
There is no evidence that the Defendants had actual notice of the lawsuit.
Plaintiff argues contrary, based upon a declaration in which he states that, on February
21, 2013 he individually mailed a copy of the First Amended Complaint, notice of law
suit, and request to waive service of a summons to the Defendants. However,
regardless of whether Defendants received these waivers, of which there is no
evidence, the First Amended Complaint was not entered by the Court until July 23,
2013. Therefore this constituted ineffective attempted service. Further, Plaintiff knew
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that the waivers were not returned, and yet failed to attempt any further action until, at
the very earliest, 2014, when he spoke with the MDOC attorney about the possibility
of filing a Motion for Default Judgment against these Defendants. However, since
these Defendants had never been served, they were not yet represented by Farrell, and
the Defendants were not placed on notice. Therefore, Defendants only received notice
in 2016, close to three years after the filing of the amended complaint and five years
after the alleged acts that underlie Plaintiff’s claims.
As far as prejudice to Plaintiff, he would be harmed since his claims would be
time barred under the two year statute of limitations for §1983 claims in Michigan.
Carroll v. Wilkerson, 782 F.2d 44, 44 (6th Cir. 1986). However, Plaintiff would not
be foreclosed completely from seeking relief, as there still remain three federal claims
against several MDOC and CORIZON employees. Finally, as to the good faith shown
by the Plaintiff, the Court would again stress, as shown above, that Plaintiff was
aware that these Defendants had not signed the waiver, and yet did nothing about that
until 2015, despite filing continuous pro se motions, and later in 2016, filing a pro se
motion to effectuate service. There is no argument as to this delay, other than Plaintiff
had alerted his previous attorneys, yet they took no action and because of confusion
over the various stays entered by the Court. This is not persuasive because Plaintiff
was active in pro se filings throughout the time that he has had attorneys when they
failed to file motions he believed necessary, as well as during times the case was
stayed. Further, the action or inaction of an attorney has no impact on the good cause
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analysis under Rule 4(c). Friedman v. Estate of Presser, 929 F.2d 1151, 1157 (6th Cir.
1991) Moreover, the stays have no impact, because the moving Defendants were not
affected by the stays since they were not yet parties to the case. Id.
Considering the extreme delay, and the complete lack of action undertaken with
respect to these Defendants for three years, the Court grants Defendants’ Motion to
Dismiss, and Defendants Couling and Wilson are dismissed from the case.
3. DEFENDANTS HEYNS, STIEVE, HUNTER, BEALS, UPSTON, WEISS, COULING,
WILSON, ROHRIG, KINDER, AND BORGERDING’S MOTION TO DISMISS [234]
Defendants Heyns, Stieve, Hunter, Beals, Upston, Weiss, Couling, Wilson,
Rohrig, Kinder, and Borgerding filed a Motion to Dismiss [234] on August 26, 2016.
Plaintiff, through counsel, responded [240] on September 16, 2016. Defendants
replied [242] on October 17, 2016. Plaintiff, through counsel, filed a supplemental
brief on the issue of insufficient service of process [241] on October 2, 2016.
a. INSUFFICIENT SERVICE OF PROCESS AND STATUTE OF LIMITATIONS
As stated above in footnote three, Defendants Rohrig, Kinder and Borgerding
joined in Defendants Couling and Wilson’s statute of limitations and insufficient
service of process motions. In section two above, the Court granted Defendants
Couling and Wilson’s Motion to Dismiss, based upon their arguments concerning the
statute of limitations and insufficient service of process. Therefore, Defendants
Rohrig, Kinder and Borgerding are also dismissed.
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b. ELEVENTH AMENDMENT IMMUNITY
Defendants Heyns, Stieve, Hunter, Beals, Upston, Weiss, Couling, Wilson,
Rohrig Kinder, and Borgerding all argue that they are entitled to Eleventh
Amendment immunity where the Plaintiff seeks monetary damages for actions taken
in their official capacity. Plaintiff, through counsel, does not contest that these
Defendants are entitled to Eleventh Amendment immunity in their official capacity.
Therefore, the Court grants Defendants Heyns, Stieve, Hunter, Beals, Upston, Weiss,
Couling, Wilson, Rohrig Kinder, and Borgerding’s Motion to Dismiss because these
Defendants are immune from damages in their official capacities under Eleventh
Amendment immunity. These Defendants remain parties in the case in their individual
capacity.
c. DIRECTOR HEYNS IS ENTITLED TO IMMUNITY FROM THE STATE-LAW
CLAIMS
Defendant Heyns, the ex-director of the MDOC, argues that he is entitled to
absolute immunity from the state-law claims under the immunity afforded highestappointive executive officials under MCL §691.1407(5). Plaintiff concedes this point,
however the Court has dismissed all state claims against all Defendants above.
Therefore, while Defendant Heyns is entitled to this immunity, the issue is now moot
as no viable state claims remain. However, the Court states for the record that
Defendant Heyns does enjoy immunity against state law claims.
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d. ROHRIG IS ENTITLED TO A DISMISSAL BECAUSE PLAINTIFF HAS
FAILED TO STATE A CLAIM OF CIVIL CONSPIRACY AGAINST HER
Plaintiff brings a single claim against Defendant Rohrig, a civil conspiracy
count. Defendant Rohrig argues that Plaintiff has failed to state a claim against her.
However, the civil conspiracy charge was dismissed above for failure to state a claim.
Therefore, this issue is moot, and Defendant Rohrig is dismissed from the case.
4. PRO SE SECOND MOTION TO AMEND COMPLAINT [261]
Plaintiff filed his initial complaint on September 14, 2012, alleging violations
of the Eighth Amendment and 42 U.S.C. §1983.
Plaintiff filed an Amended
Complaint [196] on July 23, 2013, adding additional parties and claims. Plaintiff filed
a pro se Motion seeking Leave to Amend Complaint [261] on March 24, 2017.
Fed. R. Civ. Pro. 15(a)(2) provides that, when a Motion to Amend is filed more
than 21 days after the Complaint is served, the Court may grant the Motion “when
justice so requires.” While motions to amend are frequently granted, they can be
denied for a declared reason including:
undue delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of allowance of the
amendment, futility of amendment, etc.
Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230, 9 L. Ed. 2d 222 (1962).
As stated above, the Court has disposed of several of the counts brought in the
proposed complaint in the Second Motion to Amend. Additionally, at this point,
Plaintiff has retained new counsel, who can advise the Plaintiff concerning his desire
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to file an amended complaint, in light of the rulings in this order. With respect to any
claims that do not fall under the dismissed counts, it would facilitate the Court’s
analysis if the claims were presented in a properly drafted proposed amended
complaint. Under the applicable local Rule:
A party who moves to amend a pleading shall attach the proposed
amended pleading to the motion. Any amendment to a pleading, whether
filed as a matter of course or upon a motion to amend, must, except by
leave of court, reproduce the entire pleading as amended, and may not
incorporate any prior pleading by reference. Failure to comply with this
Rule is not grounds for denial of the motion.
E.D. Mich. LR 15.1. Plaintiff has previously incorporated his initial complaint in his
first amended complaint. After reviewing the proposed complaint, the Court is unclear
how the second amended complaint would appear in its entirety since it is the second
version to incorporate text. While the Court cannot deny the complaint solely for
failing to conform to the local rule, because some of the Counts have been dismissed,
and Plaintiff now has retained new counsel, the second Motion to Amend [619] is
denied without prejudice. Plaintiff may refile a motion, if desired, that comports with
the findings of this order and complies with local rule 15.1.
5. MOTION FOR TEMPORARY RESTRAINING ORDER [250]; MOTION TO SHOW
CAUSE WHY THE MDOC SHOULD NOT BE HELD IN CONTEMPT OF COURT
[264]
The Court granted Plaintiff’s Motion for Preliminary Injunction on February 6,
2015 [167]. Defendants filed a Notice of Appeal of that order on March 5, 2015 [169].
The Sixth Circuit entered an order on March 21, 2016, reversing the Court’s approval
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of the Motion for Preliminary Injunction [206], specifically instructing that, on
remand, the Court must perform a full evidentiary hearing, providing the Defendants
opportunity to prepare and present evidence prior to granting injunctive relief.
Plaintiff, through counsel, filed a Motion for Temporary Restraining Order
[250] on February 7, 2017, requesting that the Court grant the motion prior to holding
an evidentiary hearing, per the Sixth Circuit’s mandate. Defendants responded [252;
253] on February 21, 2017. Plaintiff filed a reply pro se [265] on March 31, 2017. The
Court was clearly instructed by the Sixth Circuit that its order granting injunctive
relief was reversed, and that prior to granting additional injunctive relief, an
evidentiary hearing must be held [206]. Therefore, the Court denies this Order
requesting injunctive relief prior to holding an evidentiary hearing.
On March 31, 2017, Plaintiff filed pro se a Motion to Show Cause why the
MDOC and Corizon Defendants should not be held in Contempt of Court [264].
Plaintiff argues that the Sixth Circuit’s order, while reversing the Court’s Order
granting injunctive relief – i.e. this Court’s previous holding that Plaintiff must be
given access to an air mattress and knee brace – concluded Defendants did not have
the ability to take his mattress away because they remained under the Court’s previous
order. This argument has no merit. The Court’s grant of injunctive relief was reversed,
therefore the Defendants no longer had an active Court order preventing them from
assessing whether Plaintiff was entitled to an air mattress, given his current medical
condition, and that the removal of the air mattress from his special accommodations
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was not in violation of any Court order. Therefore, the Court denies this Order [264]
and Defendants are not in contempt of Court.
6. MOTION FOR HIPAA DISCLOSURE ORDER AND/OR QUALIFIED
PROTECTIVE ORDER [227]; MOTION TO STRIKE RESPONSE TO MOTION FOR
HIPAA DISCLOSURE [266]
Defendants filed a Motion for HIPAA Disclosure Order and/or Qualified
Protective Order [227] on August 4, 2016 [220]. Plaintiff filed a response on August
15, 2016 [227] and Defendants replied [231] on August 25, 2016. In their Motion,
Defendants are seeking either a qualified protective order and/or a disclosure order
under 45 CFR §164.512(e)(1) which will allow them to communicate ex parte with
Plaintiff’s health care providers. Effectively, the Defendants seek permission to deny
Plaintiff notice of any meetings with his health care providers, as well as the ability to
meet with them outside the presence of Plaintiff. [220 at 17].
It is undisputed amongst the parties that HIPAA neither permits nor prohibits
ex parte communications with treating physicians, and that it is within the Court’s
discretion under its broad authority to regulate discovery, whether to allow ex parte
communications with Plaintiff’s physicians. See Croskey v. BMW of N. Am., No. 0273747, 2005 WL 4704767, at *4 (E.D. Mich. Nov. 10, 2005). It is also undisputed
that, in the context of judicial proceedings, HIPAA provides three ways for parties to
be exempted from the general rule of non-disclosure of personal health information of
patients: (1) “obtaining a court order,” (2) “sending a subpoena or discovery request
where plaintiff has been given notice of the request,” or (3) “sending a subpoena or
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discovery request where reasonable effort has been made to obtain a qualified
protective order.” Croskey v. BMW of N. Am., No. 02-73747, 2005 WL 4704767, at *2
(E.D. Mich. Nov. 10, 2005)
Defendants cite Shropshire v. Laidlaw Transit, Inc., 2006 U.S. Dist. LEXIS
52943 (E.D. Mich., August 1, 2006)(MJ Morgan) for the proposition that HIPAA
does not prohibit ex parte communications with Plaintiff’s health care providers. See
also Croskey v. BMW of North America, et al., 2005 U.S. Dist. LEXIS 43442 (E.D.
Mich., November 14, 2005)(J Edmunds)(finding that “45 C.F.R. §
164.512(e)(1)(ii)(B), as defined by Section 164.512(e)(1)(v), does not require specific
notice to Plaintiff’s counsel before Defendants conduct an ex parte interview with
Plaintiff’s treating physician. Nor does it require Plaintiff to consent to such an
interview.”). Defendants also argue that this Order would benefit both parties by
avoiding the need for formal depositions, and would merely put them on equal footing
with Plaintiff since he can already engage in ex parte communications with his
treating physicians outside of the MDOC.
In his response, Plaintiff cites Strayhorne v. Caruso, No. CIV. 11-15216, 2014
WL 916814, at *1 (E.D. Mich. Mar. 10, 2014)(J Duggan) to support the proposition
that the Court should not grant an order that allows ex parte communication with
treating physicians, because it risks violating HIPAA’s strong policy in favor of
protecting the privacy of patient medical records, and that there were options
available, such as subpoenas or discovery requests. Further, Plaintiff points out that he
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is currently incarcerated, and thus has difficulty contacting his treating physicians and
attorney. Also, Plaintiff states that most of the treating physicians in this case are
currently named Defendants, or are employees with the MDOC or Corizon, rendering
Defendants equal footing argument nonresponsive to the situation he faces.
The Court agrees with Plaintiff. The case at hand resembles Strayhorne more
than Defendants’ main citation, Shropshire. In the case, the Plaintiff was suing over
injuries she and her daughter incurred arising from an automobile accident with
Defendant’s school bus. Shropshire, 2006 WL 6323288 at *1. In contrast, Strayhorne
was a prisoner civil rights case, clearly analogous to the situation here. In Strayhorne,
while the Court discounted the Magistrate’s consideration that the Plaintiff was a
prisoner because of attorney representation, the Court relied on the fact that HIPAA
only allows “expressly authorized” protected health information to be disclosed in a
judicial proceeding. Strayhorne, 2014 WL 916814 at *4. The Court reasoned that
Plaintiff’s physicians could not be expected to know what information was relevant to
Plaintiff’s claims, and was not relevant, and therefore, to combat the risk that
confidential information would be shared, even inadvertently, the Court denied a
Motion for a Protective order that would allow ex parte communications. Id.
The Court agrees with the Court in Strayhorne that the privacy concerns of
Plaintiff are not protected by ex parte communications with his non-MDOC
physicians. Further, the fact that the majority of Plaintiff’s treating physicians are
either Defendants or employees of Defendant Corizon, means that the entry of this
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order would tilt fairness in discovery towards Defendants, and would fail to level the
playing field as Defendants suggest. Also, the fact that Plaintiff is incarcerated, and
therefore has difficulty in meeting with his attorney and could not be present during
depositions, is an additional factor weighing in favor of denying the motion,
especially considering the history of Plaintiff having many different pro bono
attorneys throughout this case.
Therefore, given the facts and circumstances present in this case, the Court
concludes that Defendants can utilize formal discovery procedures as dictated under
45 CFR §164.512(e)(1)(ii), and Defendants’ motion is denied.
CONCLUSION
Defendants’ Motions to Dismiss [234, 225, 218] are granted. In
conclusion, as to Plaintiff’s amended complaint, Count I and II remain in their
entirety, Count III is dismissed as to all Defendants, Count IV is dismissed as to
Defendant Miles only, and Counts V, VI, VII, and VIII are dismissed as to all
Defendants. Defendants Heyns, Stieve, Hunter, Beals, Upston, Weiss, Couling,
Wilson, Rohrig Kinder, and Borgerding’s are immune from damages in their official
capacities under Eleventh Amendment immunity. These Defendants remain parties in
the case in their individual capacity. Defendant Rohrig is dismissed from the case.
Additionally, Defendants’ Motion for HIPAA Disclosure Order and/or
Qualified Protective Order [220] is denied. Plaintiff’s Second Motion to Amend the
Complaint [261] is denied without prejudice. Plaintiff’s Motion to Show Cause why
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Defendants should not be held in contempt of Court [264] and Motion for a
Temporary Restraining Order [250] are denied.
IT IS ORDERED that Defendants’ Motions to Dismiss [234, 225, 218] are
GRANTED. Accordingly, Count I and II remain in their entirety, Count III is
dismissed as to all Defendants, Count IV is dismissed as to Defendant Miles only, and
Counts V, VI, VII, and VIII are dismissed as to all Defendants. Defendants Heyns,
Stieve, Hunter, Beals, Upston, and Weiss are immune from damages in their official
capacities under Eleventh Amendment immunity. These Defendants remain parties in
the case in their individual capacity. Defendants Couling, Wilson, Rohrig, Kinder, and
Borgerding are dismissed from the case for insufficient process and service of
process.
IT IS FURTHER ORDERED that Defendants’ Motion for HIPAA Disclosure
Order and/or Qualified Protective Order [220] is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Second Motion to Amend the
Complaint [261] is DENIED without prejudice. Plaintiff may refile a motion if
desired that comports with the findings of this order and follows local rule 15.1.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Show Cause why
Defendants should not be held in contempt of Court [264] is DENIED.
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IT IS FURTHER ORDERED that Plaintiff’s Motion for a Temporary
Restraining Order [250] is DENIED.
SO ORDERED.
Dated: September 11, 2017
s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
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