Maxwell #240605 v. Correctional Medical Services, Inc. et al

Filing 78

OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 55 , 61 ; Motions for summary judgment 45 , 50 are granted; Motion for relief from judgment 65 is denied; Second motion for leave to amend complaint 66 is denied; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

BOBBIE A. MAXWELL, JR.,
Plaintiff,

Case No. 1:10-cv-404

v

HON. JANET T. NEFF

CORRECTIONAL MEDICAL
SERVICES, et al.,
Defendants.
_______________________________/

OPINION AND ORDER
This is a prisoner civil rights action filed pursuant to 42 U.S.C. § 1983 involving alleged
violations of Plaintiff’s Eighth Amendment Rights. Defendant Ivens and Defendant Ouellette filed
motions for summary judgment. The matter was referred to the Magistrate Judge, who issued a
Report and Recommendation (R & R) for each motion (Dkts 55, 61), recommending that this Court
grant Defendants’ motions. The matter is presently before the Court on Plaintiff’s objections to the
Reports and Recommendations (Dkts 57, 63). The Court has received responses to the Objections
from Defendants Ivens and Ouellette (Dkts 59, 64). In accordance with 28 U.S.C. § 636(b)(1) and
FED. R. CIV. P. 72(b)(3), the Court has performed de novo consideration of those portions of the
Report and Recommendation to which objections have been made, and determines that the
objections are properly denied.
Also before the Court is Plaintiff’s Motion for Relief from the Court’s April 13, 2011 Order
(Dkt 65) and Plaintiff’s Second Motion for Leave to Amend the Complaint (Dkt 66). Defendants

Ivens and Ouellette have filed responses to Plaintiff’s Motion for Relief, to which Plaintiff has filed
replies. Additionally, Defendants have filed responses to Plaintiff’s Second Motion for Leave to
Amend the Complaint, and Plaintiff has filed a reply.
Having fully considered the arguments presented, the Court denies the objections, denies
Plaintiff’s motions, grants Defendants’ motions for summary judgment, and issues this Opinion and
Order.
I. Defendant Ivens’ Motion for Summary Judgment
Plaintiff objects to the Magistrate Judge’s application of the summary judgment standard to
Defendant Ivens’ Motion for Summary Judgment (Pl. Obj., Dkt 57 at 1; R & R, Dkt 55 at 5-7).
Specifically, Plaintiff asserts that he has “identified a genuine issue for trial” (Pl. Obj., Dkt 57 at 1).
Plaintiff argues that Defendant Ivens’ Answer to the Complaint contradicts the evidence submitted
by Defendant Ivens in support of his Motion for Summary Judgment.
In the pertinent part, the Complaint reads, “Defendant[] . . . Iven [sic] . . . [is] . . . at all times
relevant to this action, [an] employee[] of CMS [Correctional Medical Services]” (Compl., Dkt 1
¶ 7). The Answer states, “Defendant, Dr. Ivens, admits that during the dates of the incidents in
question involving him he was an employee of CMS” (Answer, Dkt 40 ¶7). Defendant Ivens neither
admits nor denies the remaining allegations in paragraph seven (id.). Defendant Ivens also neither
admits nor denies the allegations in paragraph twenty-one of the Complaint, which allege that
Plaintiff’s request for surgery was denied by Defendant Ivens (id. ¶21). In his Affidavit of NonInvolvement, Defendant Ivens avers that he retired from CMS in December of 2007 and was not
involved in the October 2008 decision to deny Plaintiff hip-replacement surgery (Ex. B, Dkt 45-3
¶¶ 8, 12).

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Plaintiff argues that Defendant Ivens’ Affidavit of Non-Involvement contradicts the Answer,
in that the Answer indicates that Defendant Ivens was employed by CMS in October 2008 (Pl. Obj.,
Dkt 57 at 2). Defendant Ivens’ Answer, to the contrary, indicates only that he was employed by
CMS during “the dates of the incidents in question involving him . . .” (Answer, Dkt 40 ¶ 7)
(emphasis added). Plaintiff’s interpretation of the Answer is not supported by its plain language,
and therefore, as the Magistrate Judge determined, no genuine issues of material fact remain for trial.
Plaintiff’s argument is without merit, and his objection is denied.
Plaintiff’s second argument that it was Defendant Ivens’s responsibility to bring his noninvolvement to Plaintiff’s attention earlier in the proceedings is similarly without merit. There is
neither anything in the Federal Rules of Civil Procedure, nor has Plaintiff cited any relevant
authority, supporting such a proposition. Plaintiff’s objection is therefore denied.1
II. Defendant Ouellette’s Motion for Summary Judgment
Plaintiff objects to the Magistrate Judge’s Report and Recommendation recommending
summary judgment in favor of Defendant Ouellette on the basis that Plaintiff “never made the claim
preserved by the Court” (Pl. Obj., Dkt 63 at 1). Plaintiff states that he “obviously cannot provide
evidence to support a claim not made and not true” (id. at 2).
The remaining pending claim against Defendant Ouellette is “that on May 8, 2009, Plaintiff
submitted a request for pain medication which Ouellette denied” (R & R, Dkt 61 at 2-3). Plaintiff
attempts to obfuscate the record when he states:

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Because the Court is granting summary judgment in favor of Defendant Ivens, his pending
Motion to Compel Answers to Interrogatories (Dkt 48) is denied as moot.
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Plaintiff did not make a request for pain medication on May 8, 2009. In fact Plaintiff
was never even seen by Defendant Ouellette on that date. The Court preserved a
claim never made, and never grieved.
(Pl. Obj., Dkt 63 at 1). To the contrary, Plaintiff’s May 12, 2009 Grievance (No. ACF2009-050407-12F3) states that Plaintiff “sent a Health Care Request Kite to P.A. Ouellette . . .” (Dkt 12-3
at 30). The affidavit in support of the grievance elaborates and states, “Multipal [sic] kites have
been submitted, the latest and cause for this Grievance being 5-8-2009, for a request for Pain
Medication, and being denies [sic], delayed or treated Deliberately Indifferent by [Defendant
Ouellette]” (id. at 32). Plaintiff’s argument is not only inexcusably belated (see Dkts 24, 39
addressing this claim), it is frivolous and based on a blatant misrepresentation of the facts.
Plaintiff’s objection is therefore denied.
III. Motion for Relief from Judgment
Plaintiff moves for relief from judgment of the Court’s April 13, 2011 Order pursuant to FED.
R. CIV. P. 60(b), arguing that Plaintiff’s claim against Defendant Ivens for the November 2007
denial of surgery should not have been dismissed (Pl. Mot., Dkt 65 at 1). Although Plaintiff cites
several provisions of Rule 60(b), his arguments center on mistake, and will be evaluated as a motion
under Rule 60(b)(1).
Relief from judgment is available under Rule 60(b)(1) “(1) when a party has made an
excusable mistake or an attorney has acted without authority, or (2) when the judge has made a
substantive mistake of law or fact in the final judgment or order.” United States v. Reyes, 307 F.3d
451, 455 (6th Cir. 2002) (citing Cacevic v. City of Hazel Park, 226 F.3d 483, 490 (6th Cir. 2000)).
The court in Cacevic further noted that a Rule 60(b)(1) motion allows for “clear errors” to be

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corrected without an appeal. Cacevic, 226 F.3d at 490 (citing Bank of Calif., N.A. v. Arthur
Anderson Co., 709 F.2d 1174, 117 (7th Cir. 1983)).
Plaintiff argues that the Court made a substantive mistake in ruling that Plaintiff’s December
23, 2008 grievance addressed only the denial of surgery in 2008, and that his attorney made several
mistakes (Pl. Mot., Dkt 65 at 1-2). Reviewing both the Order (Dkt 38) and the Magistrate Judge’s
Report and Recommendation (Dkt 23), the Court finds no clear error with regard to the analysis of
Plaintiff’s December 23, 2008 grievance.
Plaintiff’s attorney argues that she made several strategic mistakes in her reading of the
Plaintiff’s grievance and in understanding the consequences of the Court’s Order (Pl. Mot., Dkt 65
at 8). Relief from judgment under Rule 60(b)(1) is available when “an attorney has acted without
authority.” Reyes, 307 F.3d at 455. Plaintiff has submitted no evidence that his attorney acted
without authority, merely that she misunderstood the facts and procedural posture of the case.
Plaintiff’s motion for relief from judgment is therefore denied.
IV. Second Motion for Leave to Amend the Complaint
Plaintiff moves for a second time to amend his Complaint to cure deficiencies that have
become apparent over the course of litigation (Dkt 66). Plaintiff seeks to reinstate two Defendants,
add two Defendants, and amend the allegations against another Defendant (Dkt 66 ¶ 1).2
Plaintiff is not eligible to amend his Complaint as a matter of course, thus he can amend his
Complaint only by leave of the Court. A district court should freely grant leave to amend a

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Defendant Ivens has moved to strike Plaintiff’s Reply for failure to comply with the local
rule requiring leave to file a reply with regard to a nondispositive motion (Dkt 76). See W.D. Mich.
LCivR 7.3. The Court agrees that Plaintiff was required to seek leave of the Court to file his reply.
Nonetheless, because the Court is denying Plaintiff’s motion to amend, and further, Plaintiff now
requests such leave, Defendant’s motion to strike is denied as moot.
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complaint when justice so requires. FED. R. CIV. P. 15(a); Parry v. Mohawk Motors of Mich., Inc.,
236 F.3d 299, 306 (6th Cir. 2000). “Nevertheless, the party requesting leave to amend must ‘act with
due diligence if it wants to take advantage of the Rule’s liberality.’” Parry, 236 F.3d at 306 (quoting
United States v. Midwest Suspension & Brake, 49 F.3d 1197, 1202 (6th Cir. 1995)). A motion to
amend is futile when additional factual allegations do not further the plaintiff’s legal claim. See
Kottmyer v. Maas, 436 F.3d 684, 692 (6th Cir. 2006). The factors relevant when considering a
motion to amend include: (1) undue delay in filing, (2) lack of notice to the opposing party, (3) bad
faith by the moving party, (4) repeated failure to cure deficiencies by previous amendments, (5)
undue prejudice to the opposing party, and (6) futility of amendment. Wade v. Knoxville Utilities
Bd., 259 F.3d 452, 458 (6th Cir. 2001). Notice and substantial prejudice to the opposing party are
the “critical factors” in deciding whether an amendment should be granted. Id. at 458-59.
Moreover, when a party seeks to amend its complaint at a late stage of the litigation, “there is an
increased burden to show justification for failing to move earlier.” Id. at 459.
Plaintiff, who is represented by counsel, could have attempted long ago to address the legal
deficiencies in his Complaint. Instead, Plaintiff waited to attempt to remedy such until after the
Magistrate Judge recommended dismissal of all remaining claims. The Court finds that permitting
Plaintiff to amend his Complaint under these circumstances would prejudice Defendants and
unreasonably delay resolution of the claims presently before the Court. Accordingly, Plaintiff’s
motion to amend his Complaint is denied.
V. Conclusion
For the foregoing reasons, this Court adopts each of the Magistrate Judge’s Reports and
Recommendations as the Opinion of this Court. A Judgment will be entered consistent with this

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Opinion and Order. See FED. R. CIV. P. 58. The Court denies Plaintiff’s Motion for Relief from
Judgment and Motion for Leave to Amend the Complaint. The remaining pending motions in this
case are denied as moot (see Dkts 48, 76).
Therefore:
IT IS HEREBY ORDERED that the Objections (Dkts 57, 63) are DENIED and each
Report and Recommendation (Dkts 55, 61) is APPROVED and ADOPTED as the Opinion of the
Court.
IT IS FURTHER ORDERED that the Motions for Summary Judgment (Dkts 45, 50) are
GRANTED.
IT IS FURTHER ORDERED that the Motion for Relief from Judgment (Dkt 65) is
DENIED.
IT IS FURTHER ORDERED that the Second Motion for Leave to Amend the Complaint
(Dkt 66) is DENIED.
IT IS FURTHER ORDERED that the Motion to Compel Answers to Interrogatories (Dkt
48) is DENIED as moot.
IT IS FURTHER ORDERED that the Motion to Strike Plaintiff’s Impermissible Reply
(Dkt 76) is DENIED as moot.

/s/ Janet T. Neff
JANET T. NEFF
United States District Judge

Dated: May ___, 2012
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