Dupage v. Hackel et al
Filing
38
OPINION AND ORDER Adopting the 35 Report and Recommendation of the Magistrate Judge and Granting the Dispositive [25, 29] Motions filed by Defendant's Correctional Medical Services, Inc. and William Ask; Denying 37 Plaintiff's Motion for Enlargement of Time to File an Answer to the Dispositive Motions and to File Objections to Magistrate Judge's Report and Recommendation. Signed by District Judge Mark A. Goldsmith. (CGre)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT DUPAGE,
Plaintiff,
v.
Case No. 10-cv-10868
HON. MARK A. GOLDSMITH
MARK HACKEL, et. al.,
Defendants.
______________________________/
OPINION AND ORDER (1) ADOPTING THE REPORT AND RECOMMENDATION
OF THE MAGISTRATE JUDGE AND GRANTING THE DISPOSITIVE MOTIONS
FILED BY DEFENDANTS CORRECTIONAL MEDICAL SERVVICES, INC. AND
WILLIAM ASK; (2) DENYING PLAINTIFF’S MOTION FOR ENLARGEMENT OF
TIME TO FILE AN ANSWER TO THE DISPOSITIVE MOTIONS AND TO FILE
OBJECTIONS TO MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This matter is before the Court on the following motions: (i) motion for summary
judgment by Defendant Correctional Medical Services, Inc. (“CMS”) (Dkt. 25); (ii) motion to
dismiss and/or for summary judgment by Defendant William Ash (Dkt. 29); (iii) Plaintiff’s
motion for enlargement of time to file an answer to these motions and to file objections to
Magistrate Judge Mark Randon’s Report and Recommendation (“R&R”) (Dkt. 35), which
recommends granting the Ash and CMS motions (Dkt. 37). For the reasons that follow, the
Court adopts the R&R, grants the dispositive motions and denies Plaintiff’s motion to enlarge
time.
I.
Discussion
This is a prisoner civil rights action under 42 U.S.C. §1983, in which Plaintiff Robert Lee
Dupage claims he was deprived of his Eighth Amendment right to be free of cruel and unusual
punishment while lodged as an inmate at the Macomb County Jail. The alleged injury occurred
on May 1, 2008 when a jail elevator transporting prisoners, including Plaintiff, became stuck
between floors. Plaintiff claims he was injured as a result of the elevator stoppage and the
subsequent effort to remove Plaintiff and others from the elevator. In addition, according to
Plaintiff, authorities failed to provide him with adequate medical care during the period of his
incarceration at the jail. Proceeding pro se, Plaintiff filed this action on March 4, 2010. He sued,
among others, William Ash – a jail officer who had allegedly disregarded policy and procedures
by transporting too many inmates in the elevator – and CMS, the jail health care provider, which
allegedly had failed to provide appropriate medical treatment to Plaintiff.
Defendant CMS filed its motion for summary judgment on November 10, 2010, while
Defendant Ash filed his dispositive motion on November 18, 2010. On November 19, 2010,
Magistrate Judge Randon, to whom all pretrial matters had been referred (Dkt. 21), issued an
order requiring Plaintiff to file a response on or before January 7, 2011 (Dkt. 30). Plaintiff filed
no response to either dispositive motion. On July 15, 2011 – some eight months after the filing
of the motions – the Magistrate Judge issued the R&R. The R&R noted that Plaintiff had failed
to respond to the motions, but nonetheless proceeded to address the merits of the dispositive
motions, correctly observing that even unopposed dispositive motions may not be automatically
granted. R&R at 5. During the course of the 13-page opinion, the Magistrate Judge carefully
reviewed the case law on the duties imposed on jail officials under the Eighth Amendment, as
well as the pleadings and evidence relied upon by the moving parties. Id. at 6-10.
The Magistrate Judge concluded that Plaintiff had failed to allege or demonstrate that
Defendant Ash knew of the danger or specific risk of harm to Plaintiff that the elevator would
get stuck. Id. at 10. Further, the Magistrate Judge reviewed the affidavits submitted, which
demonstrated that all inmates were removed from the elevator without injury or even complaint
of injury. Id. One affidavit recited that all inmates were asked if they wanted or needed medical
attention after exiting the disabled elevator and all declined treatment – a fact corroborated by
CMS’s records and the absence of any complaints documented in Plaintiff’s medical records. Id.
at 10-11.
As for CMS, the R&R noted that the evidence submitted demonstrated that Plaintiff had
not sought medical treatment on the day of the elevator mishap. In fact, during that initial period
of incarceration, he had only sought medical attention on one occasion, and that was for his
chronic hypertension condition – not for the pain in his hand and arm referenced in the
complaint. When Plaintiff was incarcerated at the jail for an additional period after November 6,
2009 (following a period of incarceration with the Michigan Department of Corrections),
Plaintiff’s health assessment was determined to be normal by health officials at the jail.
However, when Plaintiff complained of back, leg and arm pain, he was seen on the same day he
lodged his request for treatment and was given medication for pain control. Id. at 11-12.
Based on the foregoing, the Magistrate Judge found no Eighth Amendment violation had
been properly pled or substantiated either as to Ash or CMS. The Magistrate Judge noted that
the Eighth Amendment prohibits “unnecessary and wanton infliction of pain,” citing Ingraham v.
Wright, 430 U.S. 651, 670 (1977), as well as “deliberate indifference” to an inmate’s medical
needs, citing Estelle v Gamble, 429 U.S. 97, 106 (1976). R&R at 12-13. He found neither
standard met. Id.
This Court agrees. The R&R carefully reviewed the law and the evidence submitted and
properly concluded that Plaintiff has failed to raise any factual issue supporting his claims.
Therefore, the Magistrate Judge properly recommended that both the Ash and CMS motions be
granted.
Pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ.P. 72(b)(2), Plaintiff had 14 days from
entry of the R&R to file any objections. This he failed to do, thereby waiving any further right
of review. Thomas v Arn, 474 U.S. 140 (1985). However, on July 28, 2011, an attorney –
appearing for the first time in this case on behalf of Plaintiff – filed a motion seeking an
enlargement of time to answer the dispositive motions and to file objections to the R&R (Dkt.
37). The motion claims that “Plaintiff has not received any documents from the Court or
opposing counsel in this matter; all correspondence was returned ‘undeliverable.’” Pl. Mot. at 4.
The motion claims that Plaintiff became aware of the summary judgment motions and the R&R
after counsel investigated this matter and “recently obtained said pleadings and related filings.”
Id. In addition, the motion recites that Plaintiff was injured in a “care” (sic) accident on October
29, 2010 and hospitalized from October 29, 2010 through November 16, 2010, which allegedly
disabled him from attending to his legal affairs or seeking counsel. Id. The motion argues that
this constitutes excusable neglect under Fed. R. Civ. P. 6(b). Id. The motion also contends that
CMS received a 60-day extension to file responsive pleadings, so “it is only fair that Plaintiff
should be granted his request.” Id.
Plaintiff’s request for enlargement of time to file objections to the R&R must satisfy the
standard of “good cause” because the request was made while Plaintiff still was entitled to file
objections. Fed. R. Civ. P. 6(b)(1)(A). His request to enlarge time to answer the dispositive
motions must satisfy the standard of “excusable neglect,” because the request was made months
after the time to respond to the motions had expired. Fed. R. Civ.P. 6(b)(1)(B). Although there
is no specific formula for determining good cause, in determining whether neglect is excusable,
courts look to (i) the danger of prejudice to the nonmoving party, (ii) the length of the delay and
its potential impact on judicial proceedings, (iii) the reason for the delay, (iv) whether the delay
was within the reasonable control of the moving party, and (v) whether the late-filing party acted
in good faith. Nafziger v. McDermott Intern. Inc., 467 F.3d 514, 522 (6th Cir. 2006).
The Court finds that the motion for enlargement fails to substantiate any good cause for
additional time to file objections or excusable neglect for Plaintiff’s failure to timely respond to
the dispositive motions that would justify a grant of additional time to respond to them. As an
initial matter, the enlargement motion represents only the unsworn statement of an attorney; no
affidavit from Plaintiff was filed. Thus there is no evidentiary support for any of the contentions
in the motion – including the particularly important contention as to Plaintiff having recently
become aware of the dispositive motions – a defect that would weigh heavily in determining
whether relief should be granted. See Puglisi v. United States, 586 F.3d 209, 217 (2d Cir. 2009)
(affirming denial of relief under 28 U.S.C. § 2255 because critical facts were contained in brief,
not in party’s affidavit, and “an attorney’s unsworn statements in a brief are not evidence”).
Aside from the unsworn nature of the factual contentions, there is a pronounced
ambiguity in the motion. The date on which Plaintiff’s counsel was retained is never mentioned.
Nor is any date set forth when Plaintiff or his counsel learned of the pending motions or the
R&R. A party seeking an enlargement of time must set forth the particular facts that make the
case for such an enlargement. See 4B Wright & Miller, Federal Practice and Procedure: Civil §
1165 at 521 (3d. ed. 2002) (”a party must demonstrate some justification for the issuance of the
enlargement order”). Here, Plaintiff’s motion leaves the Court guessing as to the critical time
frame when the pendency of the motions and the R&R was discovered by Plaintiff and his
counsel.
To be sure, there is support in the docket that Plaintiff has not received certain documents
filed in the action, because entries have been made indicating that certain mailings to him have
been returned to the Court as “undeliverable.” See Dkts. 21, 31, 32, 34 and 36. However, each
of these mailings was to the addresses supplied by Plaintiff himself. As the R&R notes, it was
Plaintiff’s responsibility to keep his contact information current. Id. at 5, n.3, citing Evans v.
Metrish, No. 06-13660, 2008 W.L. 3200002 (E.D. Mich. Aug. 6, 2008). The local rules require
an unrepresented party to advise the Court and the parties of his current address:
[E]very party not represented by an attorney must include his or her contact
information consisting of his or her address, e-mail address, and telephone
number on the first paper that person files in a case. If there is a change in the
contact information, that person promptly must file and serve a notice with the
new contact information. The failure to file promptly current contact information
may subject that person or party to appropriate sanctions, which may include
dismissal, default judgment, and costs.
E.D. Mich. LR 11.2. Plaintiff cannot argue that he did not understand his responsibility to keep
his contact information current, because he was sent a specific notice from the Court that he must
do so (Dkt. 16), which notice was not returned as “undeliverable.” Furthermore, it is clear that
Plaintiff understood that responsibility, because he actually filed a notice of change of address on
October 8, 2010 (Dkt. 23), listing the address to which the R&R and CMS motion were sent.1
No further change of address was ever filed by Plaintiff.
1
The certificate of service for the CMS motion specifically recites Plaintiff’s address, while the
certificate of service for the Ash motion recites more generically the document was served upon
“the parties and/or counsel of record” without identifying a specific address.
Plaintiff has not shown good cause with respect his request for an enlargement of time to
object to the R&R or satisfied the excusable neglect standard with respect to his request for an
enlargement of time to answer the dispositive motions. The delay in this case was principally
traceable to Plaintiff and entirely within his control. Not only did Plaintiff fail to keep his
contact information current, in violation of the local rule, he apparently failed to review the
docket to determine what might be transpiring in the case that he had filed. The dispositive
motions were filed in November 2010 – some eight months before the R&R was ultimately
issued. Even taking into account Plaintiff’s alleged accident and hospitalization in November
2010, Plaintiff fails to explain why he did not check the docket over those many months while
the dispositive motions remained pending. Neglect that surely is, but “excusable neglect,” within
the meaning of Fed. R. Civ. P. 6(b), it surely is not.
Plaintiff’s argument that he should be granted an enlargement of time because CMS was
given additional time to file responsive pleadings is a complete non-sequitur. CMS was haled
into court, which prompted it to devote sufficient time to conduct an investigation as to its
defenses. Plaintiff, on the other hand, initiated this lawsuit, presumably armed with the facts, if
any there were, that would support his claim, and should have been prepared – if he were acting
diligently – to present those facts to forestall entry of summary judgment against him. There is
no principle of “measure for measure” that would justify granting Plaintiff more time simply
because another party at a much earlier stage of the case was granted more time to prepare an
entirely different pleading.
Furthermore, the flimsiness of Plaintiff’s argument in support of his enlargement motion
draws into question his good faith, and granting it would prejudice the opposing parties by
delaying their day of judgment. Granting enlargement would also impede the Court’s in the
prompt adjudication of this case, which should not be thwarted because of Plaintiff’s lethargic
approach to the litigation.
In sum, Plaintiff has failed to offer sufficient and substantiated facts satisfying the good
cause and excusable neglect standards of Fed. R. Civ. P. 6(b) so as to justify an enlargement of
time to answer the dispositive motions and to file objections to the R&R.
II.
Conclusion
For the above reasons, the Court ORDERS as follows:
1.
The R&R (Dkt. 35) is adopted. Defendant CMS’s motion for summary judgment
(Dkt. 25) is granted. Defendant Ash’s motion to dismiss and/or for summary
judgment (Dkt. 29) is granted. The claims against CMS and Ash are dismissed with
prejudice.
2. Plaintiff’s motion for enlargement of time to answer the CMS and Ash motions and to
file objections to the R&R (Dkt. 37) is denied.
SO ORDERED.
Dated: August 31, 2011
Flint, Michigan
s/Mark A. Goldsmith
MARK A. GOLDSMITH
United States District Judge
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record
and any unrepresented parties via the Court's ECF System to their respective email or First Class
U.S. mail addresses disclosed on the Notice of Electronic Filing on August 31, 2011.
s/Deborah J. Goltz
DEBORAH J. GOLTZ
Case Manager
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