Glenn v. Corizon Medical, Inc.

Filing 73

ORDER accepting 67 Report and Recommendation and granting 27 defendant Corizon Medical's Motion for Summary Judgment. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MYRON C. GLENN,
Plaintiff,
Case No. 17-10972
vs.
HON. GEORGE CARAM STEEH
CORIZON HEALTHCARE, INC.,
DR. HARESH B. PANDYA, M.D.,
Defendants.
_____________________________/
ORDER ACCEPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION [DOC. 67] AND
GRANTING DEFENDANT CORIZON HEALTH, INC.’S
MOTION FOR SUMMARY JUDGMENT [DOC. 27]
Plaintiff Myron C. Glenn, an inmate who wears an orthopedic brace
due to a childhood injury, filed his lawsuit against defendants Corizon
Health, Inc. (“Corizon”) and Dr. Haresh B. Pandya. Plaintiff alleges that
defendants were deliberately indifferent to his serious medical needs by
delaying his access to an orthotic boot that would accommodate his ankle
foot brace. Corizon filed a motion for summary judgment which was
referred to Magistrate Judge Patti who issued a report and
recommendation on January 18, 2019. (Doc. 67). Plaintiff filed
objections to the report and recommendation which are presently before
the court.
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The Michigan Department of Corrections issued plaintiff an ankle foot
orthotic brace and orthopedic boots to accommodate the brace in early
1998. The boots became worn out due to normal wear in tear in 2011 or
2012 and plaintiff made repeated requests for a new pair of boots or shoes.
Plaintiff alleges he suffered from pain, rashes, infections and sores due to
rubbing from ill-fitting or inappropriate footwear. After two years of
requests by plaintiff, numerous medical appointments, alternative treatment
plans, and the issuance of shoes that did not fit over the brace, plaintiff
ultimately received acceptable shoes on February 13, 2014. However, by
that time plaintiff suffered complications due to infection and was
hospitalized for two months to receive oral antibiotics. Despite treatment,
plaintiff has been unable to grow healthy tissue, is prone to tissue
infections, and alleges irreparable damage has been done. In addition,
plaintiff began experiencing back pain and sciatica as a result of
overcompensating for his foot pain by putting more strain on his back.
Magistrate Judge Patti’s report and recommendation concludes that
plaintiff’s claims are not time-barred but that there is “nothing in the record
that would permit a reasonable juror to conclude th[at] Corizon has a policy
or custom of indifference so ‘widespread, permanent and settled as to have
the force of law’ that led to Plaintiff’s claimed injury, and Corizon is entitled

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to summary judgment.”
Plaintiff filed timely objections to the report and recommendation.
Each objection is based on the premise that there is an issue of fact that
the individual Corizon personnel making the decisions in his case were
policymakers with final decision-making authority. Plaintiff argues that the
actions of these individuals amounted to “a pervasive custom or practice”
that is “attributable” to Corizon for purposes of establishing liability under §
1983 and Monell.
To establish a Monell violation based on acts of an agent, plaintiff
bears the burden of demonstrating that the agent who made the decision
that allegedly violated his rights is an official with final, unreviewable
decision-making authority who deliberately chose an unconstitutional
course of action from among various alternatives. Feliciano v. City of
Cleveland, 988 F.2d 649, 655 (6th Cir. 1993). “Mere authority to exercise
discretion while performing particular functions does not make a municipal
employee a final policymaker unless the official's decisions are final and
unreviewable and are not constrained by the official policies of superior
officials.” Feliciano v. City of Cleveland, 988 F.2d 649, 655 (6th Cir. 1993)
(citation omitted).
In his objections, plaintiff states that four Corizon personnel were

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policymakers with final decision-making authority: (1) Dr. Squier, a Corizon
utilization management physician; (2) Dr. Orlebeke, Corizon’s former State
Medical Director for the MDOC contract; (3) Dr. Bergman, a Corizon
Regional Medical Director; and (4) Dr. Papendick, a Corizon utilization
management physician. While plaintiff identified these four individuals in
his response brief to Corizon’s motion for summary judgment, he did not
argue that they were policymakers with final decision-making authority.
Nor is there any evidence in the record regarding the duties and limitations
on authority of these four individuals. In fact, the MDOC-Corizon Appeal
Process provides that the MDOC Chief Medical Officer has final authority
on all Medical Service Advisory Committee decisions.
Plaintiff’s premise does not hold up, so each of his objections to the
report and recommendation fails to establish that Corizon is subject to
liability under Monell for a custom or practice attributable to them. For the
reasons set forth above, plaintiff’s objections are overruled. The court
hereby accepts the magistrate judge’s report and recommendation granting
defendant’s motion for summary judgment. Now, therefore,
IT IS HEREBY ORDERED that the magistrate judge’s report and
recommendation is ACCEPTED and plaintiff’s objections to the report and
recommendation are OVERRULED.

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IT IS HEREBY FURTHER ORDERED that defendant’s motion for
summary judgment is GRANTED and defendant Corizon is DISMISSED
from the case.
Dated: May 3, 2019
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
May 3, 2019, by electronic and/or ordinary mail and also on
Myron Glenn #188376, Carson City Correctional Facility,
10274 Boyer Road, Carson City, MI 48811.
s/Barbara Radke
Deputy Clerk

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