White v. Jindal et al

Filing 73

Order Adopting 56 Report and Recommendation and Overruling Plaintiff's 58 Objections and Disposing of Pending Motions (Docs. 22 , 27 , 47 , 48 , 49 , 53 , 57 , 59 , 63 , 64 , 67 ). Signed by District Judge Avern Cohn. (SCha)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MARK WHITE,
Plaintiff,
v.

Case No. 13-15073

ROSLYN JINDAL,
CORIZON HEALTH INC., PAUL
KLEE, DR. WILLIAM NELSON,
CORRECTIONAL MEDICAL SERVICES,
THOMAS G. FINCO, BILL COLLIER,
LEE McROBERTS, and C. CONDON,

HON. AVERN COHN

Defendants.
___________________________________/
ORDER
ADOPTING REPORT AND RECOMMENDATION (Doc. 56)
AND
OVERRULING PLAINTIFF’S OBJECTIONS (Doc. 58)
AND
DISPOSING OF PENDING MOTIONS (Docs. 22, 27, 47, 48, 49, 53, 57, 59, 63, 64, 67)
I. Introduction
This is a prisoner civil rights case under 42 U.S.C. § 1983. Plaintiff is proceeding
pro se and in forma pauperis (IFP). The matter has been referred to a magistrate judge
for all pretrial proceedings. As will be explained, the magistrate judge issued a report
and recommendation (MJRR) on several pending motions. Before the Court are
plaintiff’s objections to the MJRR. For the reasons that follow, the MJRR will be
adopted and plaintiff’s objections will be overruled. The pending motions will be
resolved as described more fully below. Briefly, plaintiff’s claims against Correctional

Medical Services and William Nelson will be dismissed as barred by the statute of
limitations. Plaintiff’s claims against Roslyn Jindal, Thomas Finco, Bill Collier, and
Corizon Health Inc. (Corizon) will be dismissed without prejudice for misjoinder. Should
plaintiff wish to pursue his claims against Jindal, Finco, Collier, or Corizon, he must file
a new complaint. Upon filing the new complaint, he must pay the filing fee in full as he
is not entitled to proceed IFP in that action. The case continues against Paul Klee, Lee
McRoberts, and C. Condon.
II. Background
The original complaint named Jindal, a physician’s assistant, Corizon, Klee, the
Warden at the Gus Harrison Correctional Facility (GCF) where plaintiff is housed,
Nelson, a former Michigan Department of Corrections (MDOC) physician, and
Correctional Medical Services (CMS). On February 11, 2014, plaintiff filed an amended
complaint which added the following defendants: Finco, Deputy Director of the MDOC,
Collier, the lead psychiatrist at GCF, Lee McRoberts, the Deputy Warden at GCF, and
C. Condon, a Resident Unit Manager at GCF. Plaintiff also added claims for violation of
the Americans With Disabilities Act and Michigan’s Handicap Civil Rights Act.
Essentially, plaintiff claims that these defendants violated his rights under the
First, Fifth, Eighth and Fourteenth Amendments. Plaintiff’s allegations can be divided
into two categories. First, plaintiff alleges that certain defendants put him in physical
danger when MDOC personnel allowed other inmates to overhear implications that
plaintiff was a snitch against the Gangster’s Disciples in the context of a misconduct
hearing. Second, plaintiff alleges that certain defendants gave him inadequate medical
care for the treatment of his diabetes.
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Following the filing of the complaint, plaintiff moved for an immediate temporary
restraining order seeking to be transferred to an MDOC facility that did not have a high
concentration of members of the Gangster’s Disciples prison gang.
On March 25, 2014, the magistrate judge issued a MJRR recommending that
plaintiff’s motion for injunctive relief be granted because plaintiff had demonstrated a
threat to his safety and defendants had not presented any evidence to the contrary.
(Doc. 31). Neither party objected to the MJRR. Accordingly, on April 22, 2014 the
Court adopted the MJRR and ordered that defendants “transfer plaintiff to an MDOC
facility that does not have a ‘high concentration’ of members of the Gangster’s Disciples
prison gang.” (Doc. 44) (hereafter “the transfer order.”).
Plaintiff was not transferred. Instead, plaintiff was placed in administrative
segregation.
At the time of the transfer order and thereafter, the following motions were
pending before the magistrate judge:
1.

Klee’s motion for reconsideration (Doc. 47) regarding the transfer order.

2.

Plaintiff’s Motion for Contempt regarding the transfer order (Doc. 49) and
for Immediate Consideration of the same (Doc. 48)

3.

Klee’s motion for summary judgment (Doc. 27) and motion to withdraw the
motion for summary judgment (Doc. 53)

4.

CMS and Nelson’s motion to dismiss (Doc. 22)

The magistrate judge issued a MJRR, recommending that (1) Klee’s motion for
reconsideration be granted, (2) plaintiff’s motion for contempt and for immediate
consideration be denied as moot, (3) Klee’s motion to withdraw motion for summary
judgment and motion for summary judgment be denied, and (4) CMS and Nelson’s
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motion to dismiss be granted.
The magistrate judge also recommended that the Court sever this matter into two
matters. One matter would consist of plaintiff’s claims against Jindal, Corizon, Finco,
and Collier. The magistrate judge refers to these defendants as the “Medical
Defendants.” The other matter would consist of plaintiff’s claims against Klee,
McRoberts, and Condon. The magistrate judge refers to these defendants as the
“MDOC Defendants.”
Finally, the magistrate judge discovered that plaintiff is subject to the “three
strikes” rule because he has had three or more prior prisoner civil rights actions
dismissed as frivolous or for failure to state a claim. As such, the magistrate judge
recommended that plaintiff’s IFP status be revoked as to his claims against the Medical
Defendants.
III. Standard of Review
A district court must conduct a de novo review of the parts of a magistrate
judge's report and recommendation to which a party objects. 28 U.S.C. § 636(b)(1).
The district “court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate” judge. Id. The requirement of de novo
review “is a statutory recognition that Article III of the United States Constitution
mandates that the judicial power of the United States be vested in judges with life
tenure.” United States v. Shami, 754 F.2d 670, 672 (6th Cir. 1985). Accordingly,
Congress enacted 28 U.S.C. § 636(b)(1) to “insure[] that the district judge would be the
final arbiter” of a matter referred to a magistrate judge. Flournoy v. Marshall, 842 F.2d
875, 878 (6th Cir. 1987).
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IV. Analysis
A. Klee’s Motion for Summary Judgment
Klee argues that summary judgment is appropriate because plaintiff has not
exhausted his safety based claims. The magistrate judge rejected this argument on the
grounds that plaintiff was informed that his issues were non-grievable; therefore, plaintiff
has no administrative remedies to exhaust. Klee has not objected. Accordingly, the
Court will adopt the magistrate judge’s recommendation. Klee’s motion for summary
judgment will be denied. Klee’s related motion to withdraw the motion for summary
judgment will also be denied.
B. Klee’s Motion for Reconsideration
Klee argues that reconsideration of the transfer order is warranted because (1)
plaintiff is not in danger as only two members of the Gangster’s Disciples are at GCF
and a transfer would be counterproductive and (2) the MDOC should have an
opportunity to address plaintiff’s protection needs through its internal policy. As
explained in the MJRR, the MDOC’s policy requires that plaintiff first request formal
protection. The magistrate judge recommends that reconsideration is warranted as to
the second ground raised. That is, plaintiff should first follow the internal policy for
seeking protection, of which none of the MDOC Defendants made aware to the
magistrate judge or the Court until now. As such, the magistrate judge recommends
that the Court rescind the transfer order and deny plaintiff’s transfer request without
prejudice.
Plaintiff objects. The objections fail to convince the Court that the magistrate
judge’s recommendation is in error. Rather, the Court agrees that plaintiff must first
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abide by the MDOC’s internal policy to address his prison protection needs. If plaintiff is
not satisfied with the outcome, he may renew his motion seeking a transfer.
C. CMS’s and Nelson’s Motion to Dismiss
CMS and Nelson argue that plaintiff’s claims are barred by the statute of
limitations. The magistrate judge agrees and therefore recommends that CMS and
Nelson’s claims be dismissed as barred by the statute of limitations. Plaintiff objects,
requesting that the issue of the statute of limitations be held in abeyance or that he is
entitled to equitable tolling. Neither argument carries the day. As the magistrate judge
carefully explained, plaintiff’s claims against CMS and Nelson are time barred.
D. Misjoinder and IFP status
The magistrate judge discovered that plaintiff has had three or more prior civil
rights cases dismissed as frivilous or for failure to state a claim upon which relief may
be granted. This is known as the “three strikes” rule which prevents a prisoner from
proceeding without prepayment of the filing fee if they have had three or more cases
dismissed on the grounds described above. The magistrate judge also noted that there
is an exception if the prisoner can demonstrate that he is “under imminent danger of
serious physical injury.” 28 U.S.C. § 1915(g). The threat or prison condition is ‘real and
proximate’ and the danger of serious physical injury must exist at the time the complaint
is filed. See Rittner v. Kinder, 290 F. App’x 796, 797-98 (6th Cir. 2008).
The magistrate judge is correct that plaintiff is unquestionably subject to the three
strikes rule. Indeed, plaintiff has previously been denied permission to proceed without
prepayment of the filing fee due to his three strike status. See White v. Heyns, et al.,
No. 5:13-CV-12104 (E.D. Mich. May 24, 2013); White v. Correctional Medical Svs., Inc.,
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No. 1:10-CV-1082 (W.D. Mich. May 11, 2011). To the extent plaintiff objects to being
subject to the three strikes rule, his objection is not well taken.
Here, the magistrate judge concludes that plaintiff’s claims against the MDOC
Defendants regarding his physical safety fall within the exception. The Court agrees.
The magistrate judge also concludes that plaintiff’s claims against the Medical
Defendants regarding his diabetes care do not fall within the exception because plaintiff
has not shown an imminent danger or serious physical injury regarding the medical care
he received. The Court agrees.
The question then becomes what to do about the two groups of defendants in
light of plaintiff being subject to the three strikes provision. The magistrate judge
recommends that the Court sever this matter into two matters, one against the MDOC
Defendants and the other against the Medical Defendants and then revoke plaintiff’s
IFP status as to the matter against the Medical Defendants..
Plaintiff objects to the magistrate judge’s recommendation to sever the case into
two matters. Federal Rule of Civil Procedure 21 provides the Court with the authority to
sua sponte dismiss or sever parties and claims in a civil action due to misjoinder. See
also Michaels Bldg. Co. v. Ameritrust Co., N.A., 848 F.2d 674, 682 (6th Cir. 1988)
(“Parties may be dropped ... by order of the court ... of its own initiative at any stage of
the action and on such terms as are just.”); Coalition to Defend Affirmative Action v.
Regents of Univ. of Mich., 539 F. Supp. 2d 924, 940 (E.D. Mich. 2008). Rule 21 gives
the Court discretion to either sever or dismiss the mis-joined parties “on just terms.”
The Court agrees with the magistrate judge that the claims against the MDOC
defendants and the claims against the Medical Defendants are improperly joined.
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However, dismissal of the Medical Defendants,1 rather than severance, is the better
course.
In sum, should plaintiff wish to pursue his claims against the Medical Defendants
(Jindal, Corizon, Finco, and Collier) regarding improper medical care, he must file a new
complaint. If he does file a new complaint, plaintiff must pay the filing fee in full.
V. Conclusion
For the reasons stated above,
•

the MJRR is adopted as the findings and conclusions of the Court, as
supplemented above.

•

Plaintiff’s objections (Doc. 58) are overruled.

•

Klee’s motion for summary judgment (Doc. 27) is DENIED.

•

Klee’s motion to withdraw motion for summary judgment (Doc. 53) is
DENIED.

•

Plaintiff’s Motion for Contempt (Doc. 49) and for Immediate Consideration
(Doc. 48) are DENIED AS MOOT.

•

Klee’s motion for reconsideration (Doc. 47) is GRANTED. The order of
April 22, 2014 directing that plaintiff be transferred to another facility is
VACATED. Given this determination, plaintiff’s motions regarding
compliance with the transfer order are DENIED AS MOOT. This includes
the following motions: Plaintiff’s Motion for Audio Hearing on Motion to
Clarify Injunction and Request for Audio Hearing on Injunction (Doc. 59);
Plaintiff’s Motion to Expedite Hearing (Doc. 63); Plaintiff’s Motion for
Sanctions - Contempt of Court (Doc. 64), and Plaintiff’s Motion for Civil
Contempt (Doc. 67)

•

CMS and Nelson’s motion to dismiss (Doc. 22) is GRANTED.

1

The Medical Defendants are Jindal, Corizon, Finco, and Collier as the Court
agrees that plaintiff’s claims against CMS and Nelson are barred by the statute of
limitations.
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•

Jindal, Finco, Collier and Corizon are DISMISSED WITHOUT
PREJUDICE for misjoinder.

•

The case continues against Klee, McRoberts, and Condon.

SO ORDERED.

S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE

Dated: June 24, 2014

I hereby certify that a copy of the foregoing document was mailed to the attorneys of
record on this date, June 24, 2014, by electronic and/or ordinary mail.

S/Sakne Chami
Case Manager, [phone]

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