Glenn v. Corizon Medical, Inc.
Filing
86
OPINION AND ORDER DENYING Plaintiff's 81 Motion to Amend Complaint--Signed by Magistrate Judge Anthony P. Patti. (MWil)
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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 DR.
HARESH B. PANDYA, M.D.,
Defendants.
_________________________/
OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR LEAVE
TO FILE A SECOND AMENDED COMPLAINT (ECF No. 81)
I.
Introduction
Plaintiff, Myron Glenn, a state prisoner proceeding in pro per, filed the
instant lawsuit against Defendants Corizon Medical, Inc. (Corizon) and Dr. Haresh
B. Pandya, alleging deliberate indifference to his serious medical needs in violation
of the Eighth Amendment to the United States Constitution. (ECF Nos. 1, 12.)
Both Corizon and Dr. Pandya have since been dismissed from the case (ECF Nos.
73, 82), leaving no pending claims against any active defendants, but the Court has
kept the case open for resolution of Plaintiff’s September 10, 2019 motion for
leave to file a second amended complaint. (ECF No. 81.) Plaintiff seeks to add
four new defendants – Steven Bergman, D.O., Harriet Squier, M.D., Keith
Papendick, M.D., and Erin Orlebeke, M.D. – as well as allegations of “further
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harmful acts injury by the defendants[.]” (ECF No. 81, PageID.963.) According
to Plaintiff’s proposed second amended complaint, Drs. Bergman, Squier,
Papendick, and Orlebeke were, at all times relevant to the complaint, utilization
managers (UMs) employed by Corizon, responsible for approving requests from
medical providers to assess state prisoners for orthopedic boots. (ECF No. 81, ¶ 6,
PageID.966.)
II.
Background
A.
Factual and Procedural Background1
As previously stated by the Court:
Plaintiff wears an orthopedic foot/ankle brace due to a childhood
injury that resulted in having the five toes on his left foot amputated
after that foot was crushed. The Michigan Department of Corrections
(MDOC) issued Plaintiff an ankle foot orthotic brace in early 1998.
The boots became worn out due to normal wear and tear in late 2011
or 2012, and Plaintiff made repeated requests for a new pair of boots
or shoes. Plaintiff claims he suffered from pain, rashes, infections and
sores due to rubbing from ill-fitting or inappropriate footwear.
(ECF No. 76, PageID.867.)
Plaintiff, alleging deliberate indifference to his serious medical needs for
delayed access to the proper orthopedic boots, filed his original complaint against
Corizon on March 27, 2017 (ECF No. 1). He added Dr. Pandya as a co-defendant
1
Many of the facts herein have been restated from the Court’s prior opinions in
this case.
2
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in an amended complaint, filed on September 1, 2017 (ECF No. 12). Important to
the analysis of this motion, at all times relevant to the lawsuit as alleged in
Plaintiff’s first amended complaint (ECF No. 12), the MDOC contracted with
Corizon to provide healthcare to Michigan prisoners. Corizon was responsible for
reviewing and approving, denying, or providing alternative treatment plans (ATPs)
in response to its medical providers’ Consultation Requests (“407 Requests”) for
offsite special appointments, including physical therapy and orthotic appointments.
And although Corizon medical providers were responsible for submitting requests
for items to the MDOC Regional Medical Officer (RMO) requiring RMO
approval, such as for certain types of special footwear for medical reasons, the
MDOC RMO was responsible for approving or deferring those requests based
upon the MDOC’s guidelines. During that timeframe, the MDOC had Medical
Service Advisory Committee (MSAC) guidelines in place regarding the provision
of special footwear for medical reasons, and Dr. Pandya was the MDOC RMO.
The MSAC guidelines provided that the MDOC RMO was to give final approval
before orthopedic (orthotic) shoes were specially made, which they “rarely” were.
(ECF No. 27-3, PageID.179.) This is a key distinction: Corizon reviewed 407
Requests while the MDOC reviewed RMO Requests. (ECF No. 67, PageID.751752, citing ECF No. 27-3, PageID.179.)
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In his first amended complaint, Plaintiff claimed that Corizon: (1) had “a
state wide policy, custom, and practice of not providing prisoners with orthopedic
or medically issued shoes or boots”; (2) “discontinued Plaintiff’s orthopedic or
medically issued shoes or boots as a cost savings measure rather than a medical
decision”; and (3) had “policies, customs, and practices . . . of delaying, and
denying the provision of necessary specialty referals [sic], consults, treatment and
orthopedic footwear for [him].” (ECF No. 12, ¶¶ 68-69, 72, PageID.63.) With
regard to Dr. Pandya, Plaintiff alleged that he discontinued Plaintiff’s medical
detail for orthopedic boots, and that he and Corizon denied Plaintiff’s requests for
orthopedic boots between 2011 and 2013. (ECF No. 12, ¶¶ 27-28, 46-49, 65,
PageID.59, 61, 63.)
Ultimately, the Court granted summary judgment to both Corizon and Dr.
Pandya and dismissed each from the lawsuit. (ECF Nos. 67, 73, 75-76, 82.) The
Court granted summary judgment to Corizon on the basis that Plaintiff failed to
establish liability under Monell v. Dept. of Soc. Serv. Of the City of New York, 436
U.S. 658 (1978), because nothing in the record demonstrated that Corizon had “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[.]” (ECF No. 67,
PageID.779; see also ECF No. 73, PageID.850.) In contrast, the Court concluded
that Plaintiff had not fully exhausted his claim against Dr. Pandya, and that the
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claim was time-barred, Dr. Pandya having retired from the MDOC on July 31,
2013. (ECF No. 76, PageID.873, 879-880, 887; ECF No. 82.)
Notably, Corizon referenced each of the individuals Plaintiff now seeks to
add to the lawsuit throughout its March 2018 motion for summary judgment (ECF
No. 27, PageID.159-166), as did Plaintiff in his response to the motion (ECF No.
47, PageID.308-309, 321-322, 325-327, 338), objections to the report and
recommendation (ECF No. 70), and motion for reconsideration (ECF No. 74).2
Thus, Plaintiff became aware of these individuals, at the latest, in March 2018,
approximately 18 months before filing the motion at issue.
B.
Instant Motion
On September 10, 2019, Plaintiff filed the instant motion for leave to file a
second amended complaint pursuant to Rule 15(a), in which he seeks to add Drs.
Bergman, Squier, Papendick, and Orlebeke as defendants to the lawsuit. (ECF No.
2
Furthermore, in his October 4, 2018 response to the Court’s order granting
additional time for discovery pursuant to Plaintiff’s Rule 56(d) motion (ECF No.
33), Plaintiff stated:
Plaintiff can only pray at this point and time that he has correctly
interpreted the law and standards which leads him to believe that
naming Corizon officials; Erin Orlebeke (UM), Harriet Squire (UM),
Keith Papendick (UM), and Steven Bergman (UM) can be named
within his response to summery [sic] Judgment, absent being named
as defendants in his complaint.
(ECF No. 56, PageID.537.)
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81, PageID.963-964.) Further, a review of the proposed second amended
complaint attached to the motion reveals that Plaintiff may also be seeking to
renew his claims against Corizon based on the allegations added against these four
Corizon employees, though Plaintiff’s intentions are unclear. The attached
complaint is essentially Plaintiff’s first amended complaint, which includes
allegations against now-dismissed Corizon and Dr. Pandya, with the addition of
dates as recent as 2019 and allegations against the four new proposed defendants in
capital letters. For example, following Paragraph 48 stating that Corizon “higher
ups” had denied him boots (ECF No. 81, ¶ 48, PageID.970), which appeared nearly
identically as Paragraph 47 in the first amended complaint (ECF No. 12, ¶ 47,
PageID.61), Plaintiff alleges that the proposed new defendants, while serving as
UMs for Corizon, denied or delayed his 407 Requests to be assessed for orthopedic
boots “THROUGHOUT MID 2012 AND DECEMBER OF 2013 . . . ALSO 2016,
17, 18, AND 19” (ECF No. 81, ¶¶ 49-52, PageID.970-971). And in Paragraph 74,
Plaintiff states:
Since Corizon Inc., Dr. Haresh B. Pandya MD.; DR. HARRIET
SQUIER MD.; DR. KEITH PAPINDICK MD.; DR. STEVEN
BERGMAN DO.; AND DR. ERIN ORLEBEKE discontinued
plaintiff’s 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 plaintiff has not been able
to where [sic] any shoe, boot, shower shoe, footwear on the affected
foot.
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(ECF No. 81, ¶ 74, PageID.973.)3
Corizon filed its response to Plaintiff’s motion for leave to amend on
September 27, 2019, arguing that Plaintiff’s undue delay in filing the motion
burdens the Court and prejudices Defendants. (ECF No. 84, PageID.1006-1008.)
Specifically, Corizon asserts that Plaintiff knew of Drs. Bergman, Squier,
Papendick, and Orlebeke 18 months before filing the instant motion, and states:
Here, 1. Plaintiff has been aware of the factual basis of his complaint
from the outset of the litigation; 2. Plaintiff did not offer any reason
for failing to move for leave to amend until after adoption of the
Report and Recommendation; 3. Granting leave to amend would
substantially prejudice Defendant and require them to engage in new
discovery, prepare new defenses, and file additional motions.
(ECF No. 84, PageID.1007.)
In reply, Plaintiff argues that he was not dilatory in waiting until September
2019 to file the instant motion, because he was “bombarded” with dispositive
motions, discovery requests, and hospitalizations, had limited library time, and had
to wait for grievances to fully exhaust. (ECF No. 85, PageID.1010-1011.) Further,
he asserts that “even if [he] had filed his complaint at an earlier date, Defendant
3
The possibility that Plaintiff seeks to renew his claims against Corizon, and to
add additional allegations against it, is bolstered by the grievances attached to the
proposed second amended complaint, which name Corizon and list incident dates
subsequent to the filing of his first amended complaint. (ECF No. 81, PageID.976989.)
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would still have had to commit resources to respond.” (ECF No. 85,
PageID.1010.)
III.
Standards
Under Federal Rule of Civil Procedure 15(a), a party may amend its
pleading at this stage of the proceedings only after obtaining leave of the court.
The Rule provides that the Court should freely give leave for a party to amend its
pleading “when justice so requires.” Fed. R. Civ. P. 15(a)(2). “Nevertheless, leave
to amend ‘should be denied if the amendment is brought in bad faith, for dilatory
purposes, results in undue delay or prejudice to the opposing party, or would be
futile.’” Carson v. U.S. Office of Special Counsel, 633 F.3d 487, 495 (6th Cir.
2011) (quoting Crawford v. Roane, 53 F.3d 750, 753 (6th Cir. 1995)). As the
Supreme Court has explained:
If the underlying facts or circumstances relied upon by a plaintiff may
be a proper subject of relief, he ought to be afforded an opportunity to
test his claim on the merits. In the absence of any apparent or
declared reasons—such as undue delay, bad faith or dilatory motive
on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing
party by virtue of allowance of the amendment, futility of amendment,
etc.—the leave sought should, as the rules require, be “freely given.”
Of course, the grant or denial of an opportunity to amend is within the
discretion of the District Court, but outright refusal to grant the leave
without any justifying reason appearing for the denial is not an
exercise of discretion; it is merely abuse of that discretion and
inconsistent with the spirit of the Federal Rules.
Foman v. Davis, 371 U.S. 178, 182 (1962) (emphasis added).
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On the other hand, Rule 15(d) provides that “[o]n motion and reasonable
notice, the court may, on just terms, permit a party to serve a supplemental
pleading setting out any transaction, occurrence, or event that happened after the
date of the pleading to be supplemented.” Fed. R. Civ. P. 15(d) (emphasis added).
Unlike subrule 15(a), which expressly states that leave should be freely granted,
the text of subrule 15(d) contains no such admonition, and instead uses the
discretionary word “may.” Northeast Ohio Coal. For the Homeless v. Husted, 837
F.3d 612, 625 (6th Cir. 2016) (subrule 15(d)’s aim is to give broad discretion to
courts considering requests for supplementation) (citing Fed. R. Civ. P. 15(d)
advisory committee’s note to 1963 amendment) (emphases added). And, “while
Rule 15(d) allows a plaintiff to update his complaint and add allegations of later
events relating to his original complaint, ‘[t]his rule does not, however, allow a
plaintiff to add new claims relating to new events at a completely different prison
involving not the original defendants but a whole new cast of characters.’”
Alexander v. Calzetta, No. 2:16-CV-13293, 2018 WL 1725769, at *3 (E.D. Mich.
Apr. 9, 2018) (quoting Cage v. Harry, No. 1:09-cv-512, 2010 WL 1254562, at *1
(W.D. Mich. Mar. 26, 2010)).
IV.
Analysis
To the extent Plaintiff seeks to renew his claims against Corizon by adding
allegations of actions taken after he filed his first amended complaint, his motion is
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one to supplement under Fed. R. Civ. P. 15(d). Nevertheless, the Court will treat
the entire motion as one to amend because Plaintiff seeks to add four new
defendants whose alleged actions would serve as the basis for any renewed claims
against Corizon, no active defendants currently exist in the case, both Corizon and
Plaintiff treat it as such, and “[t]he same standard of review and rationale [, abuse
of discretion,] apply to a motion to supplement under Fed. R. Civ. P. 15(d) as to a
motion to amend under Fed. R. Civ. P. 15(a).” Hall v. Chapman, No. 4:15-CV13771, 2016 WL 7383685, at *1 (E.D. Mich. Dec. 21, 2016) (citing Spies v.
Voinovich, 48 F. App’x 520, 527 (6th Cir. 2002)). For the reasons explained
below, the Court DENIES Plaintiff’s motion for leave to file a second amended (or
a supplemental) complaint (ECF No. 81), under Fed. R. Civ. P. 15(a)(2) and (d).
A.
Four New Proposed Defendants
First, the record clearly demonstrates that Plaintiff acted with undue delay in
requesting leave to add Drs. Bergman, Squier, Papendick, and Orlebeke to the
lawsuit. “Delay alone will ordinarily not justify the denial of leave to amend;
however, delay will at some point become ‘undue,’ ‘placing an unwarranted
burden on the court,’ or ‘prejudicial,’ ‘placing an unfair burden on the opposing
party.’” Comm. Money Ctr., Inc. v. Illinois Union Ins. Co., 508 F.3d 327, 347 (6th
Cir. 2007) (quoting Morse v. McWhorter, 290 F.3d 795, 800 (6th Cir. 2002)).
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Here, as Corizon asserts in its response to Plaintiff’s motion (ECF No. 84,
PageID.1006-1008), Plaintiff learned the identities of the four individuals he seeks
to add, as well as their direct involvement in his treatment decisions, when Corizon
filed its motion for summary judgment in March 2018 (ECF No. 27, PageID.159166). Plaintiff himself referenced and discussed those individuals throughout his
response to Corizon’s motion (ECF No. 47, PageID.308-309, 321-322, 325-327,
338), objections to my report and recommendation (ECF No. 70), and motion for
reconsideration (ECF No. 74). Yet, he waited 18 months, until September 2019,
well after the Court had already decided Corizon’s motion for summary judgment
(ECF No. 75), to file the instant motion for leave to add the above individuals to
his lawsuit. This delay was not only per se “undue,” but the virtual certainty of a
third round of summary judgments motions, in a case that is already over three
years old, places “an unwarranted burden on the Court.” Comm. Money Ctr., Inc.,
508 F.3d at 347.
Further, Plaintiff’s delay causes “an unfair burden on the opposing party.”
Id. The Court is indeed convinced that Corizon would suffer prejudice should it
grant Plaintiff’s request to add the four individual Corizon employees as
defendants. By the time Plaintiff filed the instant motion, Corizon had seemingly
conducted its discovery, and expended considerable resources, to successfully
argue its motion for summary judgment, and Corizon would undoubtedly have to
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conduct additional discovery, prepare new defenses on behalf of the four
individuals, and file additional dispositive motions, if Plaintiff’s request is granted.
See Williams v. Leatherwood, 258 F. App’x 817, 825 (6th Cir. 2007) (affirming
district court’s denial of motion to amend based in part on district court’s finding
that granting leave to amend “would substantially prejudice defendants by
requiring them to engage in new discovery, prepare new defenses, and file
additional motions”).
Nor do Plaintiff’s explanations serve as proper justification for the delay.
“When amendment is sought at a late stage in the litigation, there is an increased
burden to show justification for failing to move earlier.” 500 Assoc., Inc. v.
Vermont American Corp., 496 F. App’x 589, 593 (6th Cir. 2012) (quotation marks
and citation omitted). Plaintiff asserts that he was “bombarded” with dispositive
motions and discovery requests, and had limited library time (ECF No. 85,
PageID.1010-1011), but these are only the normal hazards associated with
litigation. He also contends that he faced numerous hospitalizations and had to
wait for grievances to fully exhaust (ECF No. 85, PageID.1010-1011), but the
Court cannot imagine that either prevented him from filing the present motion
earlier than 18 months after learning the identities of these four Corizon
employees. While the Court has sympathy for the possibility that Plaintiff has, in
fact, been wrongly denied his orthopedic footwear for an unreasonable amount of
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time or on an unreasonable basis, once Plaintiff knew, thought he knew, or should
have known who was responsible for his injuries, he needed to seek leave to add
them, rather than wait to see how things would pan out with the existing cast of
defendants. Accordingly, Plaintiff’s request to add Drs. Bergman, Squier,
Papendick, and Orlebeke to the lawsuit is DENIED.
B.
Corizon
Second, to the extent Plaintiff seeks to add more recent allegations and
renew his claims against Corizon itself, his motion for leave to amend is DENIED,
as any renewed claims against Corizon would be dependent upon the addition of
Drs. Bergman, Squier, Papendick, and Orlebeke to the lawsuit, and the allegations
made against each. Further, Plaintiff’s attempts to renew his claims against
Corizon appear to be precluded in light of the Court’s adoption of my report and
recommendation (ECF No. 67) and the dismissal of Corizon from the suit (ECF
Nos. 73, 75). Notably, in its order adopting the report and recommendation to
grant Corizon’s motion for summary judgment, the Court rejected Plaintiff’s
assertion that it could establish a Monell claim against Corizon because Drs.
Bergman, Squier, Papendick, and Orlebeke were policymakers with final decisionmaking authority, stating:
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
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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.
(ECF No. 73, PageID.850.) And in its order denying Plaintiff’s motion for
reconsideration, the Court stated, “The court stands by its holding that the MDOC
– Corizon Appeal Process provides that the MDOC Chief Medical Officer, and not
Corizon Utilization Managers, has final authority on all Medical Service Advisory
Committee decisions.” (ECF No. 75, PageID.862.)
C.
Dr. Pandya
Finally, to the extent Plaintiff seeks to renew his claim against Dr. Pandya,
his motion for leave to file a second amended complaint is DENIED. The Court
determined the claim Plaintiff made against Dr. Pandya in his first amended
complaint was time-barred, given Dr. Pandya’s retirement from the MDOC on July
31, 2013. (ECF No. 76, PageID.873, 879-880, 887; ECF No. 82.) And in
Plaintiff’s proposed second amended complaint, he fails to allege that Dr. Pandya
was re-employed by the MDOC following his retirement. Thus, any additional
claims would likewise be time-barred.
IT IS SO ORDERED.
Dated: April 21, 2020
s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE
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