White v. Jindal et al

Filing 119

ORDER granting in part 99 Motion ; denying 106 Motion to Appoint Counsel ; denying 107 Motion for Immediate Hearing; denying 108 Motion to Expedite ; denying 109 Motion for Emergency Hearing on Injunctive Relief due to Imminent Danger ; granting in part 114 Motion to Voluntarily Dismiss Petition for Immediate Injunction ; denying 115 Motion to Compel; denying 117 Motion to Proceed without Counsel with Supervised Discovery and Deposition - Signed by Magistrate Judge Mona K. Majzoub. (LBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARK WHITE,
Plaintiff,
vs.

CIVIL ACTION NO. 13-15073
DISTRICT JUDGE AVERN COHN
MAGISTRATE JUDGE MONA K. MAJZOUB

ROSILYN JINDAL, et al.,
Defendants.
___________________________________________/
OPINION AND ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR
IMMEDIATE HEARING ON PETITION FOR PRELIMINARY INJUNCTION [99];
DENYING PLAINTIFF’S MOTIONS TO EXPEDITE APPOINTMENT OF COUNSEL
[106], MOTION FOR IMMEDIATE HEARING [107], MOTION TO EXPEDITE
REVIEW FOR INJUNCTIVE RELIEF DUE TO IMMIMENT DANGER [108], MOTION
FOR EMERGENCY HEARING ON INJUNCTIVE RELIEF DUE TO IMMINENT
DANGER [109], MOTION TO COMPEL DISCOVERY [115], AND MOTION TO
PROCEED WITHOUT COUNSEL WITH SUPERVISED DISCOVERY AND
DEPOSITION [117]; AND GRANTING PLAINTIFF’S MOTION TO VOLUNTARILY
DISMISS PETITION FOR IMMEDIATE INJUNCTION IN PART [114]
I.

Background
Plaintiff Mark White, currently a prisoner at the Lakeland Correctional Facility, in

Coldwater, Michigan, filed this action under 42 U.S.C. § 1983 against Defendants Roslyn Jindal (a
Physician’s Assistant), Corizon Health Incorporated (Corizon) (formerly known as Correctional
Medical Services (CMS)) (health-care contractors that provide services to the Michigan
Department of Corrections (MDOC)), Paul Klee (the Warden of the Gus Harrison Facility), and
Dr. William Nelson (a former MDOC physician). (Docket no. 1 at 1-2.) In his Complaint,
Plaintiff alleges that Defendants Jindal, Nelson, Corizon, and CMS violated his Eighth

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Amendment rights when they were deliberately indifferent to his serious medical needs. (Id. at
4.) Plaintiff alleges that Defendant Klee violated his rights under the First, Fifth, Eighth, and
Fourteenth Amendments when he “placed plaintiff in grave personal danger of death or physical
injury in violation of MDOC policy.” (Id.) Through his Complaint, Plaintiff seeks “punitive,
compensatory & declaratory damages in excess of [$25,000] on the deliberate indifferent (sic)
claims” and “immediate injunctive treatment & transfer to prevent death or physical injury.” (Id.)
On February 11, 2014, Plaintiff filed his Amended Complaint and added four additional
defendants to this matter: (1) Thomas G. Finco (Deputy Director of the MDOC); (2) Bill Collier
(the lead psychiatrist at the Gus Harrison facility); (3) Lee McRoberts (the Deputy Warden at the
Gus Harrison facility); and (4) C. Condon (a Resident Unit Manager at the Gus Harrison facility).
(See docket no. 14 at 1.) Plaintiff also adds two additional claims for violations of the Americans
with Disabilities Act, 21 U.S.C. § 12101, and for violations of Michigan’s Handicap Civil Rights
Laws, M.C.L. 37.1103.1 (Id. at 2.)
On March 25, 2014, the undersigned reviewed Plaintiff’s Motion for Immediate
Temporary Injunction and recommended that the Court grant Plaintiff’s Motion because Plaintiff
had shown a “specific, immediate, and substantial threat to [his] safety” and because Defendants
had failed to provide any evidence to the contrary. (Docket no. 31.) On April 22, 2014, the
Court adopted the undersigned’s Report and Recommendation and ordered that “Defendants shall
transfer plaintiff to an MDOC facility that does not have a ‘high concentration’ of members of the
Gangster’s Disciples prison gang.” (Docket no. 44.)
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The undersigned will refer to Defendants Jindal, Corizon, CMS, Nelson, Finco, and
Collier as the “Medical Defendants” and Defendants Klee, McRoberts, and Condon as the
“MDOC Defendants.”
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Instead of transferring Plaintiff as the Court ordered, Defendants placed Plaintiff in
segregation and filed a Motion for Reconsideration. (Docket no. 47.) Defendant Klee also filed
a Motion for Summary Judgment, and Defendants Corizon and Nelson filed a Motion to Dismiss.
(Docket nos. 22 and 27.) On June 24, 2014, the Court dismissed Plaintiff’s claims against CMS
and Nelson because they were barred by the applicable statute of limitations and dismissed
Plaintiff’s claims against the remaining Medical Defendants without prejudice for improper
joinder. (Docket no. 73.) Thus, Plaintiff's remaining claims are limited to his claims against the
MDOC Defendants.
On January 14, 2015, the Court granted Plaintiff’s Motion for Appointment of Counsel,
noting that while Plaintiff had proceeded in this matter without counsel thus far, the nature of his
discovery requests raised security concerns such that certain documents would need to be
produced for attorney’s eyes only, necessitating the appointment of counsel. (Docket no. 97.)
The Court also granted Defendants’ Motion to Take Plaintiff’s Deposition but required that
Defendants wait to do so until Plaintiff’s counsel is appointed. (Id.)
Since that time, Plaintiff has filed several motions, eight of which are pending before the
Court:
(1)

Plaintiff’s Motion for Immediate Hearing on Petition for Preliminary Injunction,
which asks the Court to order Defendants to transfer Plaintiff from the Chippewa
Correction Facility and to strike docket no. 97 from the record because public
access to the document is a danger to Plaintiff (docket no. 99);

(2)

Plaintiff’s Motion to Expedite Appointment of Counsel to Facilitate Discovery,
which asks the Court to expedite the appointment of counsel and allow Plaintiff to

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inspect certain files (docket no. 106);
(3)

Plaintiff’s Motion for Immediate Hearing, which asks the Court for an immediate
hearing regarding his requests in docket no. 99 (docket no. 107);

(4)

Plaintiff’s Motion for Expedited Review of Injunctive Relief Due to Imminent
Danger, in which Plaintiff seeks the same relief as his docket no. 99 (docket no.
108);

(5)

Plaintiff’s Motion for Emergency Hearing on Injunctive Relief Due to Imminent
Danger, in which Plaintiff seeks the same relief as his docket nos. 99 and 108
(docket no. 109);

(6)

Plaintiff’s Motion to Voluntarily Dismiss Petition for Immediate Injunction In Part,
which notifies the Court that Defendants have transferred him from the Chippewa
Correctional Facility to the Lakeland Correctional Facility, abrogating Plaintiff’s
need for transfer (docket no. 114);

(7)

Plaintiff’s Motion to Compel Inspection of Discovery, which asks the Court to
compel discovery for inspection by Plaintiff without counsel (docket no. 115); and

(8)

Plaintiff’s Motion to Proceed Without Counsel with Supervised Discovery and
Deposition, in which Plaintiff asks that the Court allow him to proceed without
counsel and that he be permitted to inspect the discovery documents at issue in this
matter with supervision of the Court (docket no. 116).

Defendants filed Responses to Plaintiff’s Motions regarding injunctive relief, arguing that
Plaintiff’s requests to be transferred should be denied but failing to address Plaintiff’s request to
strike docket no. 97 from the record. (Docket nos. 102, 110, and 111.) Defendants also filed a

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Response to Plaintiff’s Motion to Compel Inspection of Discovery. (Docket no. 116.) All
pretrial matters have been referred to the undersigned for consideration. (Docket no. 40.) The
Court dispenses with oral argument pursuant to E.D. Mich. LR 7.1(e). The Motions are now
ready for ruling.2
II.

Analysis
A.

Plaintiff’s Motions for Transfer and to Strike Docket no. 97

As noted, Plaintiff’s Motions for Immediate Hearing (docket nos. 99 and 107), to Expedite
Review (docket no. 108), and for Emergency Hearing (docket no. 109) all seek two forms of relief:
(1) an order for Defendants to transfer Plaintiff to another facility; and (2) an order striking docket
no. 97 from the record for safety reasons. Since Plaintiff filed his Motions, Defendants have
transferred him from the Chippewa Correctional Facility to the Lakeland Correctional Facility,
prompting Plaintiff to file a Motion to withdraw his requests for such a transfer. (Docket no.
114.) The Court will grant his Motion to withdraw his request on these grounds. The Court will
also deny Plaintiff’s Motions at docket nos. 107, 108, and 109 to the extent they seek cumulative
relief or are now moot.
With regard to Plaintiff’s request for the Court to strike docket no. 97, Plaintiff asserts that
because the prison now provides online access to court records, any prisoner can read docket no.
97. (See docket no. 99 at 1.) Plaintiff asserts that because the Court confirms in docket no. 97
that Plaintiff has requested the personal information of specific prisoners, the information in the
2

While a motion for injunctive relief is to be addressed through a Report and
Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), Plaintiff has withdrawn his request for
such relief. (Docket no. 114.) To the extent Plaintiff’s motions for injunctive relief are still
before the Court, Plaintiff requests only that the Court strike (or seal as discussed further herein)
docket no. 97. Therefore, the Court will proceed with through an Opinion and Order under 28
U.S.C. § 636(b)(1)(A).
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Order puts him in danger. (Id. at 1-2.) Plaintiff further claims that some prisoners have already
read the document and that they have threatened him for being a “snitch” or a “rat.” (See docket
no. 108 at 2.)
Despite Plaintiff filing five motions related to this request, Defendants have not responded.
Therefore, Defendants have waived any objection.

Moreover, the Court finds Plaintiff’s

argument persuasive. Nevertheless, Plaintiff’s request to strike, or “remove” the document from
the record is inappropriate; instead, the Court will grant Plaintiff’s Motion in part and will seal
docket no. 97 pursuant to Fed. R. Civ. P. 5.2 and E.D. Mich. Local Rule 5.3.
B.

Plaintiff’s Motions to Expedite Appointment of Counsel, Compel Inspection,
and Proceed Without Counsel

As noted on January 14, 2015, the Court granted Plaintiff’s Motion to Compel certain
documents, subject to also granting Plaintiff’s Motion for Appointment of Counsel and an
“attorneys-eyes only” review because of the sensitive nature of the documents involved. (See
docket no. 97.) Contrary to Plaintiff’s assumptions, although the Court has not yet found counsel
for Plaintiff, “all attorneys queried have [not] placed profit before principles.” (See docket no.
117 at 1.) Moreover, the necessity for protecting the sensitive nature of the documents requested
by Plaintiff has not subsided. Allowing Plaintiff to review the personal files of other prisoners
(even with the Court’s supervision) raises security concerns.
Defendants note that they have complied with the Court’s Order compelling discovery,
they have compiled the requested documents, and they will produce them to Plaintiff’s attorney
when one is appointed. (Docket no. 116 at 1-2.) The Court will continue to seek an attorney to
represent Plaintiff in this matter. If the Court is unable to find counsel for Plaintiff, the Court will
consider alternative means for proceeding with discovery in this matter. Plaintiff’s Motions
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(docket nos. 106, 115, and 177) will be denied.
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Immediate Hearing on
Petition for Preliminary Injunction [99] is GRANTED IN PART. The Court will seal docket no.
97.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Voluntarily Dismiss Petition for
Immediate Injunction In Part [114] is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Expedite Appointment of
Counsel to Facilitate Discovery [106], Motion for Immediate Hearing [107], Motion for Expedited
Review of Injunctive Relief Due to Imminent Danger [108], Motion for Emergency Hearing on
Injunctive Relief Due to Imminent Danger [109], Motion to Compel Inspection of Discovery
[115], and Motion to Proceed Without Counsel with Supervised Discovery and Deposition [116]
are DENIED.
Pursuant to Fed. R. Civ. P. 72(a), the parties have a period of fourteen days from the date of
this Order within which to file any written appeal to the District Judge as may be permissible under
28 U.S.C. 636(b)(1).

Dated: August 13, 2015

s/ Mona K. Majzoub
MONA K. MAJZOUB
UNITED STATES MAGISTRATE JUDGE

PROOF OF SERVICE
I hereby certify that a copy of this Report and Recommendation was served on counsel of
record and on Plaintiff Mark White on this date.
Dated: August 13, 2015

s/ Lisa C. Bartlett
Case Manager

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