Woollard v. Corizon Health Inc. et al

Filing 43

ORDER GRANTING Plaintiff's 42 Motion to Hold in Abeyance--Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CORY WOOLLARD,
Case No. 2:18-cv-11529
District Judge Paul D. Borman
Magistrate Judge Anthony P. Patti

Plaintiff
v.
CORIZON HEALTH, INC.,
RICHARD HARBAUGH,
R. COLEMAN,
SUBRINA AIKENS,
MARY GRENIER,
ROSILYN JINDAL,
JANET CAMPBELL, et al.,
Defendants.
___________________________________/

ORDER GRANTING PLAINTIFF’S NOVEMBER 19, 2018 MOTION (DE
42) TO HOLD IN ABEYANCE THE COURT’S RULING ON DEFENDANT
HARBAUGH’S MOTION FOR SUMMARY JUDGMENT (DE 30)
A.

Background

Judge Borman has referred this case to me for pretrial matters. Plaintiff’s
September 17, 2018 amended complaint, i.e., the operative pleading, alleges
violations of the Eighth Amendment and names three Defendants: (1) Corizon
Health, Inc.; (2) Richard Harbaugh; and, (3) Rosilyn Jindal. (DE 28.)
I recently entered a report and recommendation that the Court deny as moot
several motions to dismiss, because the motions either relate to a now-inoperative
pleading and/or were filed on behalf of a now-inactive Defendant. (See DE 41.) I
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still must still issue a report and recommendation as to: (1) Defendant Corizon
Health’s September 25, 2018 motion to dismiss the amended complaint (DE 29),
regarding which Plaintiff has filed a response (DE 37) and Defendant Corizon has
filed a reply (DE 40); and, (2) Defendants Campbell and Harbaugh’s October 1,
2018 motion for summary judgment (DE 30), regarding which Plaintiff has filed a
response (DE 36) and Defendants Aikens, Campbell and Harbaugh have filed a
reply (DE 39).
B.

Instant Motion

By way of background, the briefing in the MDOC Defendants’ pending
dispositive motion raises questions about party identification. Defendants
Harbaugh and Campbell’s October 1, 2018 motion for summary judgment
contends, inter alia, that “Defendant Harbaugh’s only involvement is in
responding to the Step III appeal.” (DE 30 at 9.) Plaintiff’s October 19, 2018
response refers to Defendant Harbaugh as the Assistant Chief Medical Officer
(ACMO). (DE 36 at 2-3.) In the MDOC Defendants’ October 30, 2018 reply, they
contend that “[t]he only issue in dispute is whether ‘ACMO’ in each of the
following notes taken from Step I and Step II responses to Plaintiff’s grievances
refers to Defendant Richard Harbaugh.” (DE 39 at 2; see also DE 42 at 2.)
At that point, it seems that Plaintiff began to doubt whether he had named
the proper Defendant. Currently before the Court is Plaintiff’s November 19, 2018
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motion to hold in abeyance the Court’s ruling on Defendant Harbaugh’s motion for
summary judgment, wherein Plaintiff claims that “the identity of the actual ACMO
referred to in the grievance responses is of paramount importance to Plaintiff’s
lawsuit[,]” and contends that he “is entitled to the disclosure of this information . . .
.” (DE 42 at 3.)
C.

Discussion

In a sense, this appears to be an attempt by Plaintiff to assert that he “cannot
present facts essential to justify [hi]s opposition . . .” to Defendants Harbaugh and
Campbell’s October 1, 2018 motion for summary judgment. Fed. R. Civ. P. 56(d).
However, Plaintiff has not shown this “by affidavit or declaration . . . .” Id.
Therefore, to the extent, if at all, that Plaintiff is relying upon Rule 56(d), the Court
will not grant Plaintiff’s requested relief.
Moreover, Plaintiff claims that he has served a related Fed. R. Civ. P. 26
discovery request. (DE 42 at 3, 9.) Assuming Plaintiff properly served Defendants
with a related interrogatory in mid-November 2018 (see DE 42 at 10) and under
ordinary circumstances, Defendants’ response would be due in mid-December
2018. See Fed. R. Civ. P. 33(b)(2). Thus, Plaintiff may soon be provided with the
information he seeks. In other words, to the extent that Plaintiff seeks to compel
information that was only recently requested through discovery, and for which the
response deadline has yet to arrive, his request is not ripe.
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D.

Conclusion

Even though Plaintiff’s instant motion does not meet with Fed. R. Civ. P.
56(d)’s requirements, and even though the information sought by Plaintiff’s
purported discovery request is not yet due, the prudent approach under this case’s
procedural history is to briefly delay consideration of the October 1, 2018 motion
(DE 38) - regarding which briefing has already closed - while Plaintiff’s apparently
pending attempt to secure “the identity of the actual ACMO referred to in the
grievance responses . . . [,]” (DE 42 at 3), runs its course.
E. Order
Upon consideration, Plaintiff’s motion (DE 30) to hold the October 1, 2018
motion for summary judgment in abeyance is GRANTED. In alignment with
Plaintiff’s specific requests (see DE 42 at 3-4), the Court notes that, by midDecember 2018, Defendants may well provide Plaintiff with the information he
seeks – “the identity of the ACMO referred to in the grievance responses . . . .”
(DE 42 at 3). However, if Plaintiff does not receive a timely response to his
above-described discovery request, then, no later than Wednesday, January 2,
2019, he may file a related motion to compel. Finally, if either of these avenues
produces information that warrants an amended or supplemental pleading or
briefing, then Plaintiff may promptly file an appropriate motion in accordance with
Fed. R. Civ. P. 15 and/or a sur-reply brief in response to the pending summary
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judgment motion, on or before February 1, 2018. Any such sur-reply brief will be
limited to 3 pages maximum. In order to accommodate this timeline, the
Undersigned will issue a report and recommendation regarding Defendants’
motion (DE 30) no earlier than Thursday, February 28, 2019.
IT IS SO ORDERED.

Dated: November 28, 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 November 28, 2018, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti

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