Glenn v. Corizon Medical, Inc.

Filing 82

ORDER adopting 76 Report and Recommendation and granting defendant Dr. Haresh B. Pandya, M.D.'s Motion for Summary Judgment 62 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. 76] AND
GRANTING DEFENDANT DR. HARESH B. PANDYA,
M.D.’S MOTION FOR SUMMARY JUDGMENT [DOC. 62]
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, in
violation of the Eighth Amendment, by delaying his access to an orthotic
boot that would accommodate his ankle foot brace. On May 3, 2019, the
court accepted Magistrate Judge Patti’s report and recommendation,
granting Corizon’s motion for summary judgment. On November 8, 2018,
Dr. Pandya filed a motion for summary judgment, arguing that plaintiff’s
Eighth Amendment claim against him is barred by the statute of limitations
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and that plaintiff failed to exhaust his administrative remedies with respect
to this claim. Magistrate Judge Patti issued a report and recommendation
on July 8, 2019. ECF No. 76 Plaintiff filed timely objections to the report
and recommendation which are presently before the court.
1.

Objection One
Plaintiff’s first objection is that the magistrate judge is incorrect in his

premise that plaintiff knew about Dr. Pandya as early as 2012 when plaintiff
has consistently stated that he did not know the names or identities of the
defendants who harmed him. The magistrate judge cites to plaintiff’s
complaint to support his findings:
Plaintiff made several requests in “late 2011 and mid 2012, to
Corizon staff for a new pair of boots,” and he was “told by Dr.
Killaru, M.D.” “in mid 2012” that “his medical detail for
orthopedic boots had been discontinued by the RMO [Pandya].”
(DE 12, ¶¶ 27- 28.) He further claims that his onsite medical
provider (P.A. Wierman) made at least three 407 requests for
orthopedic boots between March and December 2013, which
were denied by “the RMO (Dr. Pandya) and Corizon higherups[.]” (Id. ¶¶ 46-47.) Plaintiff contends that he was “again
forced to wear worn out boots” and that he “received treatment
for abscesses through November 2011, mid 2012, late 2012,
mid 2013 and late 2013.” (Id. ¶¶ 48-49.) He complains that
“[s]ince Corizon Inc. and Dr. Pandya discontinued [his] special
accommodation for orthopedic boots in 2012, he has
continuously been in pain, OFTEN UNABLE TO WALK, AND
WITH GREAT DIFFICULTY WHEN HE COULD, and on
occasion [he] has been unable to put any shoe, boot, shower
shoe, footwear on the affected foot.” (Id. ¶ 65 (capitalization in
original).)
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ECF No. 76, PageID 867. Even if plaintiff did not know Dr. Pandya
by name, he knew the RMO was responsible for the decisions at
issue. This objection is overruled.
2.

Objection Two
Plaintiff contends that he did not become aware of the fact that Dr.

Pandya was in violation of his rights for over two years after his injury,
when he found out that defendant was disregarding his suffering by
approving boots that were non-orthopedic instead of orthopedic. Plaintiff
maintains that he relied on the medical advice he was given and therefore
could not be expected to discover that he was receiving improper treatment
until he eventually received proper treatment.
The magistrate judge responded to plaintiff’s argument that he was
not aware of his claim against defendant until January 2014 by pointing to
the allegations in the complaint, his response brief, his affidavit and the
medical record. See, ECF No. 76, PageID 875. The cited allegations
support the magistrate judge’s conclusion that plaintiff concedes he was
aware of his injury at or near the time Dr. Pandya allegedly denied him
orthopedic boots in 2012. At the very latest, plaintiff knew of his claim
when Dr. Pandya retired in July 2013. This objection is overruled.

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3.

Objection Three
Plaintiff’s third objection is that the magistrate judge relies on

misleading documents to support the finding that defendant approved a
request for orthopedic boots on December 4, 2011. Plaintiff contends that
in fact, defendant only approved M.S.I. footwear at that time. The
document relied on by the magistrate judge is an approved request for a
high top boot for plaintiff. The document is shown to have been generated
by defendant Pandya. ECF No. 65, PageID 675. Contrary to plaintiff’s
contention, the magistrate judge does not interpret the document to show
that defendant approved an orthopedic boot. In the following paragraph,
the magistrate judge recognizes that plaintiff claims the “alternative
footwear” caused pain and ulcers in the 2011 to 2013 time period. This
objection is overruled.
4.

Objection Four
Plaintiff next objects to the magistrate judge’s finding that he did not

exhaust his administrative remedies as to defendant because his grievance
was not specific enough to give defendant notice. The magistrate judge
concluded, and the court agrees, that the grievance does not name
defendant Pandya, does not refer to the RMO, and does not refer to any
actions or inactions attributable specifically to defendant. ECF No. 62-2,
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PageID 607, 609. Therefore, the grievance does not give notice to
defendant that he is a target of the grievance. This objection is overruled.
5.

Objection Five
The magistrate judge concluded that plaintiff failed to timely exhaust

his administrative remedies as to his claims against defendant. The
magistrate judge based this conclusion on evidence that plaintiff knew
about the subject matter of his grievance by mid-2012 when his request for
orthopedic boots was denied by the RMO and the fact that he was
“continuously in pain” since that time. ECF No. 76, PageID 884. In his
objection, plaintiff contends that he properly exhausted his administrative
remedies because he was consistently told by medical personnel that he
would be accommodated and that the M.S.I. footwear would treat his
medical needs. Once he learned that he was never getting orthopedic
footwear and that the orthopedic boots were available to him since 2011,
he filed his grievance in a timely manner.
Plaintiff’s argument is not supported by the grievance itself. The only
grievance filed by plaintiff regarding his footwear was filed on January 31,
2014. The grievance was filed against “JCF Health care staff and
Corizon”, the “date of incident” was listed as January 23, 2014, and plaintiff
wrote that he attempted to resolve “matters herein by speaking with health
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care personal [sic] on 1/10/14 and 1/23/14.” ECF No. 62-2, PageID 607,
609. As found by the magistrate judge, plaintiff did not indicate that he
was grieving the actions or inactions taken by the RMO or indicate that he
was recently informed that he qualified for orthopedic footwear in 2011. In
addition, Dr. Pandya had retired six months prior to the grievance and was
not a current member of “JCF Health care staff” or “Corizon”. The court
finds that the evidence supports the magistrate judge’s recommendation.
This objection is overruled.
6.

Objection Six
Plaintiff’s final objection is to the magistrate judge’s conclusion that

the continuing violations doctrine does not apply to his claim against
defendant. Plaintiff argues that defendant denied him proper footwear
throughout 2011 to 2013 and his injury continued to worsen as a result.
Plaintiff remained unaware that he would not receive proper orthopedic
footwear and that the footwear he did receive would cause further harm.
The continuing violations doctrine requires at least one act of
deliberate indifference by the defendant during the limitations period.
Continuous ill effects of an original decision are not enough for a continuing
violation. Bruce v. Corr. Med. Servs., Inc., 389 F. App’x 462, 466 (6th Cir.
2010) (citation omitted). In this case, plaintiff did not allege an act of
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deliberate indifference by defendant during the limitations period.
Furthermore, given defendant’s retirement from MDOC service on July 31,
2013, plaintiff could not allege an act by defendant within the limitations
period. This objection is overruled.
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.
IT IS HEREBY FURTHER ORDERED that defendant’s motion for
summary judgment is GRANTED and defendant Dr. Pandya is DISMISSED
from the case.
The court notes that as a result of this order there are no claims
pending against any defendants and plaintiff’s case would normally be
concluded at this juncture. However, plaintiff filed a second motion to
amend his complaint to add four new defendants. ECF No. 81. In order
to resolve the pending motion, the case will remain open for this limited
purpose and plaintiff’s motion to amend will be referred to the magistrate
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judge for determination.
So ordered.
Dated: September 20, 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
September 20, 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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