Glenn v. Corizon Medical, Inc.
Filing
54
ORDER GRANTING Plaintiff's 33 Motion for a Ruling--Signed by Magistrate Judge Anthony P. Patti. (MWil)
Case 2:17-cv-10972-GCS-APP ECF No. 54 filed 09/21/18
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MYRON GLENN,
Plaintiff
v.
Case No. 2:17-cv-10972
District Judge George Caram Steeh
Magistrate Judge Anthony P. Patti
CORIZON MEDICAL, INC
and HARESH B. PANDYA,
M.D.,
Defendants.
___________________________________/
ORDER GRANTING PLAINTIFF’S MOTION FOR A RULING
ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
TO BE POSTPONED PENDING DISCOVERY PURSUANT TO
RULE 56(d) (DE 33)
A.
Background
Plaintiff Myron Glenn, a state prisoner who is proceeding without the
assistance of counsel, filed the instant lawsuit alleging, in relevant part, that
Defendants Corizon Health, Inc. (“Corizon”) and Dr. Haresh Pandya1 were
deliberately indifferent to a serious medical need by delaying him access to
1
Plaintiff filed his original complaint against Corizon on March 27, 2017 (DE 1),
and added Dr. Pandya as a defendant in his amended complaint, filed on
September 1, 2017. (DE 12.) To date, Dr. Pandya has not been served.
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orthopedic boots that accommodate his ankle foot orthopedic brace. (DE 12.) This
case was referred to me for all pretrial purposes. (DE 7.)
B.
Relevant Procedural History
On March 9, 2018, Defendant Corizon filed a motion for summary
judgment. (DE 27.) Corizon included at Exhibit B to its motion the “relevant
portions of Plaintiff’s MDOC medical records” dated January 4, 2012 through
March 3, 2014. (Id.) On March 12, 2018, the Court entered an Order requiring
Plaintiff to respond to Corizon’s motion for summary judgment on or before April
11, 2018. (DE 32.) On March 19, 2018, Plaintiff filed a motion for extension of
time to file a response/reply to Corizon’s motion for summary judgment. (DE
34.) The Court granted Plaintiff’s motion for an extension of time and set May
14, 2018 as the new response deadline. (Text-only order dated Apr. 30, 2018.)
Plaintiff also filed the instant motion for a ruling on Defendant’s motion for
summary judgment to be postponed pending discovery pursuant to Rule 56(d).
(DE 33.) Plaintiff submitted an affidavit in which he asserts that he has been
seeking production of his medical records dated January 1, 2010 through
December 31, 2015 from Corizon and that “[t]he requested medical records are
vital to plaintiff being able to meet the standard for overcoming summary
judgment.” (Id. at 3.) On May 4, 2018, Plaintiff filed a supplemental brief in
support of his Rule 56(d) motion, supported by a declaration, again asking the
2
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Court to postpone ruling on Corizon’s motion for summary judgment to allow
Plaintiff additional time “to request discovery [of his medical records for the time
pertaining to his Complaint] from the proper custodian of records” through a Rule
45 subpoena to nonparty Michigan Department of Corrections (MDOC). (DE
41.)2
On May 18, 2018, Plaintiff filed his response to Corizon’s motion for
summary judgment. (DE 43.) Plaintiff’s response consisted of a 37-page
motion/brief, and 147 pages of exhibits, including over 125 pages of medical
records, as well as various other documents. (DE 43.) Plaintiff asserted in his
response that he “has presented overwhelming evidence to this Court” in support
of his claims against Corizon, and he did not contend that he was still awaiting
additional documents. (Id. at 35.) Corizon filed a reply brief in support of its
motion on May 25, 2018. (DE 44.)
C.
Discussion
1. Rule 56(d) Standard
Pursuant to Federal Rule of Civil Procedure 56(d), “the district court may
defer summary judgment, pending discovery, if the non-movant submits affidavits
stating that ‘the party cannot for reasons stated present by affidavit facts essential
2
Plaintiff explained that he initially served a request for production of his medical
records on Corizon, but upon learning that Corizon is not the custodian of those
records, he intended to seek those documents through a Rule 45 subpoena on
nonparty MDOC.
3
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to justify the party’s opposition.”’ Plott v. Gen. Motors Corp., Packard Elec. Div.,
71 F.3d 1190, 1196 (6th Cir. 1995) (quoting Fed. R. Civ. P. 56(d)); see also Elite
Contractors, Inc. v. CitiMortgage, No. 12-cv-10284, 2012 WL 12884454, at *3
(E.D. Mich. May 7, 2012) (“A party that wishes to engage in fact discovery may
defeat summary judgment if the party shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to justify its opposition.”)
(internal quotations omitted). It is within the discretion of the district court
whether to permit discovery under Rule 56(d). Egerer v. Woodland Realty, Inc.,
556 F.3d 415, 425-26 (6th Cir. 2009). In deciding a request under Rule 56(d),
courts generally consider factors such as: (1) when the non-moving party learned
of the issue that is the subject of the discovery; (2) how long the discovery period
lasted; (3) whether the non-moving party was dilatory in his or her discovery
efforts; and (4) whether the moving party was responsive to discovery requests.
Plott v. Gen. Motors Corp., Packard Elec. Div., 71 F.3d 1190, 1196-97 (6th Cir.
1995). However, irrespective of the above factors, in cases where the non-moving
party has had no opportunity to conduct discovery, “denying the Rule [56(d)]3
motion and ruling on a summary judgment motion is likely to be an abuse of
discretion.” CenTra Inc. v. Estrin, 538 F.3d 402, 420 (6th Cir. 2008).
3
Rule 56 was reworded and reorganized effective December 1, 2010. One of the
revisions was moving the provision that was Rule 56(f) into its current location as
Rule 56(d).
4
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2. Plaintiff’s Rule 56(d) motion
In his Rule 56(d) motion and supplemental brief, Plaintiff claims that he
needs time “to request discovery [of his medical records for the time pertaining to
his Complaint] from the proper custodian of records” through a Rule 45 subpoena
to nonparty MDOC. (DEs 33, 41.) According to Plaintiff’s amended complaint,
the relevant time period is late 2011 through early 2014. (DE 12 at ¶¶ 27-57.) It is
not clear to the Court whether the instant Rule 56(d) motion is now moot,
considering Plaintiff’s May 18, 2018 response to Corizon’s motion for summary
judgment, which included over 140 pages of exhibits. These exhibits included
over 125 pages of medical records dated January 2012 through March 2014 (that
Corizon had attached as Exhibit B to its motion for summary judgement), as well
as other documents, including medical records dated December 4, 2011, March 2,
2013, and January 23, 2015, a summary of medical equipment supplies for Plaintiff
for the June 2008 through August 2009 time period, Medical Service Advisory
Committee guidelines, an August 4, 2013 email communication from NP
Wierman, and grievance documents. (DE 43 at 39-110; DE 43-1 at 1-56.)
Plaintiff did not assert in his response that he needed additional documents to
support his claims, or that the medical records provided are somehow deficient.
Indeed, Plaintiff asserted in his response brief that he “has presented overwhelming
evidence to this Court” to support his claims. (DE 43 at 35.)
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However, to the extent Plaintiff continues to argue that he needs additional
“requested medical records” to respond to Corizon’s motion for summary
judgment, in an abundance of caution, the Court will allow Plaintiff an additional
forty-five (45) days, or until November 5, 2018, to obtain such records and file a
supplemental response brief (not to exceed five (5) pages, not counting exhibits)
addressing these additional records, if needed. As the Court stated in its recent
prior orders (DEs 51, 53), Plaintiff may obtain a copy of his own prison medical
records, without the necessity of a subpoena, pursuant to making a proper request
under the MDOC Policy Directive governing “Prisoner Health Information,” PD
03.04.108, ¶¶ T-V (effective Sept. 14, 2015). Specifically, section U of PD
03.04.108 provides:
A prisoner may receive copies of documents generated by the
Department and contained within his/her health record by making a
specific, written request to the appropriate health information manager
or designee and paying the required per-page fee, as set forth in OP
03.04.108B “Prisoner Access to Medical Records.” Legal questions
shall be referred to OLA.
PD 03.04.108 ¶ U. The Court would appreciate, however, that if Plaintiff has all
the records needed to respond to Corizon’s motion for summary judgement, and
that he therefore does not need to supplement his response to the summary
judgment motion, that he would so inform the Court as soon as possible.
D.
Conclusion
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Therefore, for the reasons set forth above, to the extent still requested
pursuant to Fed. R. Civ. P 56(d), Plaintiff is granted an additional forty-five (45)
days, or until November 5, 2018, to obtain any additional medical records he
contends are necessary to respond to Corizon’s motion for summary judgment (DE
27), and to file a supplemental response brief with the Court (not to exceed five (5)
pages, not counting exhibits) addressing those additional records. Plaintiff is
further directed to inform the Court promptly if he does not intend to file a
supplemental response brief or has no need to obtain additional records.
IT IS SO ORDERED.
Dated: September 21, 2018
s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE
Certificate of service
I hereby certify that a copy of the foregoing document was sent to parties of record
on September 21, 2018, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti
7
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