Kitchen #189265 v. Snyder et al
OPINION re Miscellaneous Motions ; signed by Magistrate Judge Phillip J. Green (Green, Phillip)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
MICHAEL ANDREW KITCHEN,
CORIZON HEALTH, INC., et al.,
Case No. 1:16-cv-190
Honorable Paul L. Maloney
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C.
' 1983. Plaintiff is an inmate at the Carson City Correctional Facility. (ECF No.
150). This lawsuit arises out of conditions of his confinement between May 21 and
November 3, 2015, at the Michigan Reformatory (RMI). During this period, plaintiff
developed shingles, and he believes that the medical care he received was inadequate.
The matter is before the Court on a series of motions by plaintiff and the two
defendants Corizon Health, Inc., and Nurse Practitioner Corey Grahn (collectively
referred to as the Corizon defendants): plaintiff’s motion for a protective order (ECF
No. 120), plaintiff=s motion requesting a “partial delay” of the Court’s ruling on the
Corizon defendants’ dispositive motion pending discovery or alternatively for the
Court to take judicial notice of facts and waive compliance with W.D. MICH.
LCIVR 7.1(d) (ECF No. 123), plaintiff’s motion to compel (ECF No. 125), the Corizon
defendants’ third motion for a teleconference (ECF No. 130), the Corizon defendants=
motion for a brief extension of time to file responses to plaintiff=s motions because the
attorney responsible for drafting the responses was ill (ECF No. 131), the Corizon
defendants’ motion for leave to file surreply briefs (ECF No. 143), and plaintiff’s
motion regarding service on defendants Doyle and Schultz (ECF No. 145).
Motion for an Extension of Time
The Court finds attorney illness provides good cause to grant the Corizon
defendants’ motion for a brief extension of time to file their responses to plaintiff=s
motions. Defendants’ motion (ECF No. 131) will be granted. Defendants’ responses
(ECF No. 134-37) are deemed timely.
Motion for a Protective Order
On April 10, 2017, plaintiff filed a motion requesting a protective order
regarding the Corizon defendants’ access to the MDOC’s records regarding the
medical care that plaintiff has received.
(ECF No. 120).
Defendants have filed
their response. (ECF No. 135).
On August 11, 2016, the Corizon defendants served a request for production of
documents on plaintiff, which included a medical authorization to obtain copies of the
MDOC’s records regarding plaintiff’s medical care. (ECF No. 135-1, PageID.143133). Defendants requested a release of medical records from April 1, 2009, to the
present. (Id. at PageID.1433). Plaintiff responded with a letter dated August 30,
2016, indicating that he objected to the breadth of defendants’ request, but he
expressed a belief that the parties could “work something out without the
intervention of the court.” (ECF No. 135-2 at PageID.1434). Defendants represent
to the Court that, on “September 9, 2016, the Corizon Defendants responded. They
declined a personal meeting at that time, but provided a new medical authorization
limiting the scope of their request in a good faith attempt to resolve any perceived
issues with the prior authorization.” 1
(ECF No. 135 at PageID.1424).
medical authorization form limited the scope of defendants= request to records from
January 1, 2012. (ECF No. 79-3, PageID.815).
Plaintiff Aconcedes that the Corizon Defendants are entitled to have access to
his medical records,” but he believes that the extent of access that defendants
requested is Aexcessive.” (ECF No. 121 at PageID.1292). The Corizon defendants
Ado not oppose entering a protective order under HIPAA,2 but decline to enter one on
the terms that plaintiff seeks.” (ECF No. 135 at PageID.1421).
Plaintiff asks that the Court limit defendants’ access to medical records to the
period from “May 22, 2015 to January 31, 2016.” (ECF No. 121 at PageID.1294).
Further, plaintiff asks that defendants’ access also be further narrowed to types of
The Corizon defendants cite to Exhibit C of their brief as the September 9,
2016, letter from Mr. Chapman to plaintiff. Unfortunately, the document attached
as Exhibit C to defendant’s brief is not that letter, but rather, a letter from plaintiff
to Chapman dated August 23, 2016. (ECF No. 135-3, PageID.1435). The Court will
disregard this obvious clerical error. Chapman’s September 9, 2016, letter to
plaintiff and the revised release requesting medical records from January 1, 2012, to
the present, are found in the record as an attachment to defendants’ earlier brief.
(ECF No. 79-3, PageID.814-15).
Insurance Portability and Accountability Act of 1996 (HIPAA), Pub. L. No.
104-191, 110 Stat. 1936 (1996).
medical problems indicated in his complaint related to damages.
PageID.1294-95). Defendants respond that their request for records beginning on
January 1, 2012, is reasonable and necessary given the breadth of plaintiff’s claims
for damages and the need to review plaintiff’s medical record leading up to his 2015
shingles infection to “determine whether [p]laintiff had any pre-existing conditions
that factor into his alleged damages.”3 (ECF No. 135, PageID.1426). Upon review,
the Court finds that the parties have not presented compelling arguments or evidence
in favor of the starting points that they suggest on either side of a range of
approximately 40 months.
In the absence of any agreement, and limited to the
specific facts of this case, the Court finds that an approximate midpoint splitting the
difference is reasonable and proportional to the needs of the case. See FED. R. CIV.
P. 26(b)(1). Accordingly, plaintiff will be ordered to sign the release (ECF No. 79-3,
brief states: “As in all other cases, the Corizon defendants will
seal any medical records they submit to the Court.” (ECF No. 135, PageID.1426).
This statement is accurate only to the extent that Corizon routinely makes such
requests in this type of case out of an abundance of caution to avoid potential HIPAA
These motions are rarely, if ever, granted.
deliberate indifference to serious medical needs place their medical condition and the
medical care that they have received directly at issue and thereby waive whatever
privileges or statutory protection the medical records may have previously enjoyed
under HIPAA. See, e.g., Simon v. Cook, 261 F. App=x 873, 886 (6th Cir. 2008) (waiver
of federal common law psychotherapist-patient privilege); Maday v. Public Libraries
of Saginaw, 480 F.3d 815, 821 n.2 (6th Cir. 2007) (waiver of state-law privilege).
Moreover, the public has a constitutionally-based right to know the evidence on which
this Court decides a motion for summary judgment.
PageID.815) granting the Corizon defendants access to the requested MDOC records
regarding plaintiff for the period from September 1, 2013, to the present.
Plaintiff alleges that he suffered a broad range of injuries and he claims
entitlement to extensive damages. The Court will not limit defendants= access to
only those medical records that plaintiff deems relevant.
(ECF No. 121 at
“Plaintiff does not get to choose which discrete portions of his
medical records he permits Defendants to discover.” Sleighter v. Kent County Jail
Adm’r, 1:12-cv-703, 2013 WL 5320203, at *5 (W.D. Mich. Sept. 20, 2013).
Defendants are entitled to all the requested records regarding plaintiff from
September 1, 2013, to the present.
Plaintiff asks the Court to order that he be permitted to inspect the medical
records before the MDOC provides them to the Corizon defendants, or alternatively,
that the Court conduct an in camera review “in order to make sure that any claim of
privacy to that information is a legitimate exercise of privilege.” (ECF No. 121 at
Plaintiff has no such right of inspection.
Plaintiff invokes the
Michigan Medical Records Access Act, MICH. COMP. LAWS ' 333.26261, et seq., (ECF
No. 121 at PageID.1295), but the question of whether he is entitled to access to the
MDOC’s records under the Michigan statute is simply not an issue in this lawsuit.
It is utterly irrelevant to defendants’ entitlement to the documents in question. In
addition, this case “is brought under the [C]ourt’s federal-question jurisdiction.
Pursuant to Rule 501 of the Federal Rules of Evidence, the issue of privilege in
federal-question cases is governed by federal law, not state law. This is the rule even
where, as here, there are pendent state-law claims asserted as well as federal claims.”
Carlson v. Fewins, No. 1:08-cv-991, 2010 WL 11488917, at *2 (W.D. Mich. Apr. 9,
2010) (citing Hancock v. Dodson, 958 F.2d 1367, 1372-73 (6th Cir. 1992)).
no federal physician-patient privilege. See Hancock v. Dodson, 958 F.2d at 1373; see
also Langenfeld v. Armstrong World Indus., Inc., 299 F.R.D. 547, 551 (S.D. Ohio 2014)
(“It is well-established that, under federal common law, there is no physician-patient
privilege.”). The Court declines plaintiff suggestion that the Court conduct an in
Plaintiff asks that the Court “prohibit the Corizon Defendants from having ex
parte communications with his medical providers.” (ECF No. 121 at PageID.1295).
The Court has “broad discretion” in regulating discovery. Strayhorne v. Caruso, No.
11-15216, 2014 WL 916814, at *2 (E.D. Mich. Mar. 10, 2014). The Court, in its
discretion, declines to impose the suggested restriction. The Corizon defendants are
entitled to speak with Corizon’s employees and contractors and others medical care
providers regarding the care that plaintiff has received or is receiving. “The HIPAA
regulations plainly permit adversaries in litigation to have access to a claimant’s
medical records that are relevant to the issues in the litigation. Having access to the
medical witnesses who may testify at trial serves the same goal of allowing equal
access to the evidence, which is essential to the success of the adversary process.”
Thomas v. 1156729 Ontario Inc., 979 F. Supp. 2d 780, 784 (E.D. Mich. 2013); see also
Owusu v. Michigan Dep’t of Corr. Pain Mgmt. Comm., No. 16-cv-12490, 2017 WL
3913152, at * 1-2 (E.D. Mich. Sept. 7, 2017) (noting that ex parte communications
with health care providers are contemplated by HIPAA and are regularly allowed by
Plaintiff asks the Court to order that the Court restrict access to the MDOC’s
medical records to “attorney Ronald W. Chapman and the intern or assistant
handling this case, Melissa Wright.” (ECF No. 121 at PageID.1297-98). Again, the
Court, in its discretion, declines to impose the suggested restriction.
Plaintiff asks the Court to “order the redaction of his social security number
and birth date from any medical records released to the Corizon Defendants.” (ECF
No. 121 at PageID.1297). Plaintiff is not entitled to have anything redacted from
the documents that the MDOC is going to produce. The attorneys already have an
obligation to redact portions of the information regarding plaintiff’s birth date and
social security number from documents filed with the Court. See FED. R. CIV. P.
5.2(a)(1),(2). There is no need for an order.
The Corizon defendants do not object to a protective order including a provision
for destruction of documents after the end of this lawsuit and related appeals. They
do not object to a provision regarding limiting disclosures to those necessary for the
purposes of this litigation.
(ECF No. 135 at PageID.1428).
entering an order including such provisions.
The Court will be
Plaintiff=s motion for a protective order will be granted in part and denied in
part as indicated herein.
Motion to Compel
Plaintiff’s motion to compel (ECF No. 125) requires an examination of the
procedural history of this case. On July 20, 2016, the Court entered the standard
case management order in a prisoner civil rights case. (ECF No. 28). Paragraph 4
of the standard order states: “Absent the issuance of an order staying or limiting
discovery, all discovery by or against a defendant must be completed within 120 days
from the date of this order. All discovery motions must be filed within the same
(Id. at PageID.160).
Thus, November 17, 2016, was the deadline for
completion of all discovery and the deadline for the filing of motions to compel. (Id.).
The November 17, 2016, deadline has never been altered.
On or about July 26, 2016, plaintiff served a set of requests for production of
documents on the Corizon defendants.
(ECF No. 136-1, PageID.1464-66).
August 25, 2016, the Corizon defendants served their responses. (ECF No. 136-2,
One day later, August 26, 2016, the Corizon defendants received a letter from
plaintiff dated August 23, 2016 (ECF No. 136-3, PageID.1478), in which plaintiff
asked the Corizon defendants to “disregard” the discovery that they had answered on
August 25, 2016, and he enclosed what he described as “substitute” discovery
The second paragraph of plaintiff’s letter mentions settlement
discussions and his claims in another lawsuit against Corizon and others regarding
how frequently plaintiff can obtain refills of a prescribed “rescue inhaler.”4
On September 1, 2016, counsel for the Corizon defendants sent the following
letter in response to plaintiff’s August 23, 2016, correspondence:
Please accept this letter in response to your attempt to withdraw your prior discovery
requests and your questions concerning settlement.
In regard to discovery, by the time we received your letter, we had
already substantively responded to your request for production of
documents. We will not respond to your new Request for Production of
Documents directed to our client Corizon Health, Inc. for the following
reasons: (1) we have sought a motion for a stay of discovery on the
merits of your claim against Corizon based on the highly objectionable
nature of your requests and our pending motion on the issue of
exhaustion; and (2) you have exceeded the requests under the CMO.
We, at this time, decline to respond to the Interrogatories addressed to
Corizon Health, Inc. as well.
We will respond to the request for production directed toward Mr. Grahn
to the extent such requests do not exceed the CMO. We have conducted
an ESI search of Mr. Grahn=s email per your request. Please find our
supplemental responses to your prior discovery based on this new
In regard to settlement, our client will not entertain your attempt to
obtain relief regarding medical issues that are not the subject matter of
(ECF No. 136-5, PageID.1481).
wrote: “In addition to the above, I also received your letter dated
August 10th about my offer to settle this matter. I appreciate your response.
However, I am confused about us not being able to reach a compromise, especially
since I am willing to pay Corizon for the medication that I am seeking, like the ‘rescue
inhaler’, for example.” (ECF No. 136-3, PageID.1478).
On September 2, 2016, before the close of discovery, plaintiff filed a motion to
compel against the Corizon defendants. (ECF No. 63). On March 1, 2017, the Court
dismissed this motion and others without prejudice because the parties failed to
comply with the requirements of Local Civil Rule 7.1(d). (ECF No. 109).
On April 10, 2017, plaintiff filed a motion to compel discovery. (ECF No. 125).
This motion was untimely because the November 17, 2016, deadline for the filing of
motions to compel has never been altered.
However, plaintiff’s motion will be
indulgently construed as making an implicit request that his motion to compel be
considered as timely.
On April 27, 2017, the Corizon defendants filed their response to plaintiff=s
motion to compel. (ECF No. 136). Defendants argue that plaintiff’s motion should
be denied “because (1) Plaintiff is attempting to withdraw a set of discovery after the
Corizon Defendants had already answered that discovery; and (2) the discovery he
seeks to compel is far beyond the scope of discovery, highly prejudicial and invasive,
and with no relevance to this matter. In addition, plaintiff has included settlement
discussions as part of his exhibits.
Settlement negotiations are not subject to
disclosure pursuant to Federal Rule of Evidence 408 and should be struck from the
record.” (Id. at PageID.1449).
On May 11, 2017, plaintiff filed a brief. (ECF No. 141). Part B of that brief
(Id. at PageID.1585) is plaintiff’s two-paragraph reply to the Corizon defendants’
The Corizon Defendants also filed a response to Kitchen=s motion to
compel discovery (ECF No. 136, Pg ID.1449). But Kitchen is asking
that the motion [sic] be thrown out for the same reason that the response
to Kitchen’s motion for a protective order should be thrown out. Quite
simply, the response was filed untimely because the motion seeking
more time was not properly filed.
Moreover, the response is without merit in any event. Their refusal to
answer the August 23rd Discovery is so incredible that it is silly. Both
the July 26th and August 23rd Discovery is virtually the same, with
exception to the August 23rd discovery cutting down on the extent of the
information sought. Hence, the Corizon Defendants would actually
benefit from answering the August 23rd as opposed to the July 26th
(Id.). The above-quoted argument is notably lacking in citations to any supporting
Further, defendants’ brief (ECF No. 136) was not a motion. In
addition, the Court has determined that attorney illness did provide good cause for
granting the Corizon defendants’ motion for an extension of time to file a brief in
response to plaintiff’s motion to compel.
Plaintiff asks the Court “to order the Corizon Defendants to respond to
Kitchen’s discovery requests dated August 23, 2016, or, in the alternative, provide
more substantive responses to the discovery requests dated July 26, 2016.” (ECF
No. 126, PageID.1315). Plaintiff cites no authority under the Federal Rules of Civil
Procedure that would permit him to direct the Corizon defendants to “disregard” the
July 2016 discovery requests and “substitute” the August 2016 discovery requests.
Plaintiff cannot be permitted to whipsaw the Corizon defendants by serving discovery
requests, then purporting to withdraw those requests and substituting others after
defendants provided a response to the first set, then ask as an alternative form of
relief, that the Court to compel defendants to provide “more substantive responses”
to requests that plaintiff told the defendants to disregard.
The July 26, 2016,
discovery requests must be the starting point for the Court’s analysis.
The case management order authorized “5 requests for production of
documents for each opposing party.”
(ECF No. 28, PageID.160).
There are two
Thus, under the case management order, plaintiff was
permitted a maximum total of ten requests for production against Corizon
defendants, five against Corizon Health, Incorporated and five against Nurse
Practitioner Corey Grahn.
Plaintiff inexplicably served sixteen broadly worded
requests for production against defendants.
Defendants objected on several grounds.
(ECF No. 136-1, PageID.1464-66).
Plaintiff=s July 26, 2016, requests for
production are so broad that no discussion is necessary beyond sustaining defendants’
objections that plaintiff’s requests for production are unduly burdensome and are not
proportional to the needs of this lawsuit. (ECF No. 136-2, PageID.1467-77).
Defendants’ objection that plaintiff=s August 23, 2016, requests for production
exceed the number of requests authorized under the case management order (ECF
No. 136-7, PageID.1485-88) is sustained.
In September 2016, the Corizon defendants served their responses to plaintiff’s
interrogatories. (ECF No. 136-8, PageID.1489-93; ECF No. 136-9, PageID.1495-99).
Plaintiff’s brief (ECF No. 126 at PageID.1318) fails to engage the substance of the
answers or objections made to specific interrogatories. Plaintiff expresses general
dissatisfaction that the corporate defendant did not provide him with information
that he wants regarding withdrawn or canceled contracts and other lawsuits filed
against Corizon or its employees claiming deliberate indifference (Id.), but plaintiff
fails to cite any supporting legal authority and he fails to provide developed
arguments as to why the objections made to specific interrogatories should be
overruled and the defendants should be compelled to answer. Notably, none of the
interrogatories directed to the corporate defendant seeks information regarding
whether Corizon had a policy, procedure, or custom, during the period at issue, that
led to the inadequate treatment of plaintiff’s shingles. Plaintiff’s motion to compel
will be denied.
Motion to Delay Ruling on the Corizon Defendants’ Dispositive Motion
On March 21, 2017, the Corizon defendants filed a motion for partial dismissal
of plaintiff=s First Amended Complaint under Rule 12(b)(6) for failure to state a claim
and partial summary judgment based on the affirmative defense provided by
42 U.S.C. ' 1997e(a). (ECF No. 115). The moving defendants seek dismissal under
Rule 12(b)(6) of plaintiff=s purported state law claims because they sound in medical
malpractice and plaintiff has not complied with the requirements under Michigan
law for bringing malpractice claims. Defendants argue that plaintiff’s federal claims
seeking to hold Corizon defendants vicariously liable for the actions of others should
be dismissed for failure to state a claim upon which relief can be granted.
addition, the Corizon defendants seek summary judgment on plaintiff=s claims
against Corizon and some of plaintiff’s claims against Nurse Practitioner Grahn for
plaintiff’s failure to exhaust his available remedies through the MDOC’s grievance
process before he filed this lawsuit. (ECF No. 115 at 1195-96).
On April 10, 2017, plaintiff filed, labeled as, his “MOTION FOR PARTIAL
DELAY OF RULING ON CORIZON DEFENDANTS’ DISPOSITIVE MOTION
PENDING DIOSCOVERY OR FOR THE COURT TO TAKE JUDICIAL NOTICE OF
FACTS, & TO WAIVE COMPLIANCE WITH L. CIV. R. 7.1(d).” (ECF No. 123).
Plaintiff invokes former Rule 56(f), now found at Rule 56(d).
(ECF No. 123 at
PageID.1306). Plaintiff does not seek a delay in the Court’s consideration of the
Corizon defendants’ Rule 12(b)(6) motion.
He is asking the Court to delay
consideration of the summary judgment portion of the defendants’ motion on his
“quarantine claims” against the Corizon defendants. (ECF No. 124 at PageID.1309).
He is seeking more time “to conduct discovery on the amount of movement that
prisoners in segregation on medical isolation ha[d] within the facility where this
incident took place, the Michigan Reformatory Facility (RMI).”
alternative,” plaintiff is asking the Court to “take judicial notice of prisoner
movement within RMI’s segregation housing unit.
In addition, because of the
limited time in which [plaintiff] had to file a supplemental response to the Corizon
defendants’ motion, [plaintiff] also ask[s] the Court to waive compliance with L. Civ.
R. 7.1(d) with regard to this motion only.” (ECF No. 124, PageID.1309).
Plaintiff’s requests for “alternative” relief require very little discussion. The
Court cannot take “judicial notice” of “prisoner movement within RMI’s segregation
housing unit” during the period at issue. This information is not a court record nor
any other type of public record subject to judicial notice. See, e.g., Passa v. City of
Columbus, 123 F. App’x 694, 697 (6th Cir. 2005) (“[I]n general a court may only take
judicial notice of a public record whose existence or contents prove facts whose
accuracy cannot reasonably be questioned.”). Further, the Court does not find a
sufficient basis to relieve plaintiff from the requirement that he comply with W.D.
MICH. LCIVR 7.1(d). More than three months before the close of discovery, plaintiff
had notice that the Corizon defendants would be seeking partial summary judgment
based on his failure to exhaust his available administrative remedies. (ECF No. 42,
PageID.414, 424-27,430-31). Plaintiff elected not to conduct any discovery against
the Corizon defendants related to exhaustion of available administrative remedies.
The Court finds no basis for granting plaintiff relief under Rule 56(d). The
Sixth Circuit=s recent decision in Scadden v. Werner, 677 F. App’x 996 (6th Cir. 2017)
is instructive. The Court of Appeals noted that “Federal Rule of Civil Procedure
56(d) spells out how a non-movant should inform the court. The rule requires a
nonmovant to show by affidavit or declaration that, ‘for specified reasons, [he] cannot
present facts essential to justify its opposition.’ Then, ‘the court may: (1) defer
considering the motion or deny it; (2) allow time ... to take discovery; or (3) issue any
other appropriate order.’ ”
677 F. App’x at 999 (quoting FED. R. CIV. P. 56(d))
(emphasis added). The Sixth Circuit reiterated that the “need to comply with Rule
56(d) ‘cannot be overemphasized.’ ” 677 F. App’x at 999 (quoting Cacevic v. City of
Hazel Park, 226 F.3d 483, 488 (6th Cir. 2000)). It noted that, without a Rule 56(d)
affidavit or declaration or a motion that gives the district court a chance to rule on
the need for additional discovery, an appellate court would not normally address
whether there was adequate time for discovery. 677 F. App’x at 999-1000; see also
Unan v. Lyon, 853 F.3d 279, 292 (6th Cir. 2017) (“We have observed that filing an
affidavit that complies with Rule 56(d) is essential, and that in the absence of such a
motion or affidavit, this court will not normally address whether there was adequate
time for discovery.”) (citation and quotation omitted).
In addition, “even when a party properly presents a Rule 56(d) affidavit and a
motion to extend discovery, the rule only provides that a court ‘may’ extend the
Thus, [the Court of Appeals] reviews the decision ‘under an
abuse of discretion standard’ and only reverse[s] if the decision denying further
discovery was ‘arbitrary, unjustifiable, or clearly unreasonable.’ ” 677 F. App’x at
1000 (quoting F.T.C. v. E.M.A. Nationwide, Inc., 767 F.3d 611, 623-24 (6th Cir. 2014)).
“In so reviewing, [the Sixth Circuit] look[s] to various factors but consider primarily
whether the party seeking an extension was diligent in pursuing discovery.” 677 F.
App’x at 1000 (citations and quotations omitted); see also Katz v. Village of Beverly
Hills, 677 F. App’x 232, 239 (6th Cir. 2017). A non-moving party’s “failure to comply
with 56(d) is reason enough to conclude that the district court did not abuse its
discretion in granting the initial summary judgment motion, or denying his request
for reconsideration, without allowing for more discovery.” 677 F. App’x at 1000.
The affidavit that plaintiff filed in support of his motion is deficient. Rather
than swearing under penalty of perjury that his statements are true and correct,
plaintiff has interjected the limitations that his statements are true “to the best of
[his] knowledge, information and belief.” (ECF No. 128, PageID.1369). However,
even assuming that the affidavit had been adequate, plaintiff would not be entitled
to a stay or additional discovery related to exhaustion of his administrative remedies.
It was evident months before the close of discovery that exhaustion was going to be
an issue in this case. Plaintiff was not diligent in pursuing discovery related to the
exhaustion of his available administrative remedies and no other factor or
combination of factors warrants delaying consideration of the summary judgment
portion of the Corizon defendants’ motion or any other relief authorized under Rule
56(d). Plaintiff’s motion will be denied.
Motion for Leave to File Surreply Briefs
On May 25, 2017, the Corizon defendants filed a motion for leave to file ASURREPLIES to PLAINTIFF’S REPLIES [DKT, 139, 141].” (ECF No. 143). Plaintiff
opposes the motion.
(ECF No. 149).
Defendants’ motion was not supported by
proposed surreply briefs or arguments stating with precision what issues defendants
sought to address. The existing briefing is sufficient. Defendants’ motion will be
Motion for a Teleconference
On April 11, 2017, the Corizon defendants filed a third motion for a
teleconference asking the Court to establish new litigation deadlines and to resolve
outstanding discovery issues. (ECF No. 130). There is no need for a teleconference.
All the pending motions have been addressed. Defendants’ motion will be denied.
Defendants are correct that deadlines specified in the initial case management
order have passed. The Court will be entering a second case management order after
Judge Maloney has had an opportunity to consider the report and recommendation,
which was filed this date, regarding the pending dispositive motions. (See ECF No.
Motion Regarding Service
On May 26, 2017, plaintiff filed a motion with the following caption:
“PLAINTIFF=S MOTION TO EXTEND SUMMONS & FOR SUBSTITUTED
SERVICE ON DEFENDANTS DOYLE & SCHULTZ.”
(ECF No. 145).
asks that the Court allow service on Assistant Attorney Allan J. Sorros. (Id.).
Defendants Doctor Thomas J. Doyle and (unknown) Schultz, R.N. have never
been served or otherwise appeared in this lawsuit. Three attempts to achieve service
through the waiver of service process proved unsuccessful.
(ECF No. 146-1,
On September 9, 2016, the Court issued summonses for
defendants Doyle and Schultz. On September 26, 2016, the United States Marshal
returned an unexecuted summons for defendant Schultz, followed three days later by
the return of the unexecuted summons for defendant Doyle. (ECF No. 81, 82).
On December 2, 2016, defendant filed a motion for extensions of the life of the
summonses and he asked that substituted service be allowed on the attorneys of
record, Ronald W. Chapman and Allan J. Soros. (ECF No. 105). Plaintiff did not
comply with the requirements of W.D. MICH. LCIVR 7.1(d) before he filed this motion.
Attorney Soros did not file any response on behalf of the MDOC defendants. The
Corizon defendants are represented by the Chapman Law Group and Attorney
Ronald W. Chapman, Sr. On December 15, 2016, the Corizon defendants filed their
brief in opposition to plaintiff=s motion. (ECF No. 108). Among other things, the
Corizon defendants advised that Nurse Schulz was “not a current or former Corizon
employee.” (Id. at PageID.1047). The Chapman firm “does not represent MDOC
nurses (as versus nurse practitioners) because they are employed by the MDOC.”
(Id.). “Corizon did not and does not employ Dr. Doyle, an optometrist. An entirely
different company, called Institutional Eye Care, provides optometrists to the
The body of the Corizon defendants= brief concluded with the
following sentence: “Corizon can provide under seal to the Court the address for
Institutional Eye Care, but cannot accept service or ensure that, if the undersigned
is served, that notice can be provided to Dr. Doyle.” (Id.). On March 1, 2017, the
Court entered an order dismissing plaintiff=s motion and eighteen other motions
without prejudice because the parties had not complied with the requirements or Rule
7.1(d). (ECF No. 109).
On May 26, 2017, plaintiff filed his revised motion regarding extending the life
of the summonses for defendants Schultz and Doyle.
This motion eliminated
plaintiff’s request for substituted service on the attorney for the Corizon defendants.
Plaintiff asks the Court to “extend the life of the summons and to permit substituted
service of the summons and complaint for Defendants Doyle and Schultz on Attorney
Allan J. Sorros.” (ECF No. 146 at PageID.1603). Attorney Sorros again elected not
to file a response on behalf of the MDOC defendants. The Corizon defendants filed
a brief in response to plaintiff’s motion in which they “adopt[ed] their response to
Plaintiff’s original Motion.”
(ECF No. 148 at PageID.1618).
defendants ask that if the Court does elect to extend the summons to serve Schultz
and Doyle, “that the extension be for a discrete period of time, such as sixty days.”
Upon review, plaintiff=s motion will be granted in part and denied in part. The
summons life of each summons will be extended to January 9, 2018. The Clerk will
be directed to send the extended summonses to U.S. Marshals Service. Plaintiff=s
request for substituted service will be denied. The MDOC will be ordered to provide
the U.S. Marshals Service with last known address for defendants Schultz and Doyle
to allow for another attempt at serving the summons and plaintiff=s First Amended
Complaint on Dr. Doyle. Attorney Chapman will be directed to provide the U.S.
Marshals Service with the address for Institutional Eye Care to allow for an attempt
at serving the summons and plaintiff=s First Amended Complaint on Dr. Doyle at that
For the reasons set forth herein, the Corizon defendants’ motion for an
extension of time to file responses to plaintiff=s motions based on attorney illness
(ECF No. 131) will be granted and the briefs that they have filed (ECF No. 134-37)
will be deemed timely. Plaintiff’s motion for a protective order (ECF No. 120) will
be granted in part and denied in part, and a qualified protective order will be entered.
Plaintiff will be ordered to sign the release granting the Corizon defendants access to
the requested MDOC records regarding plaintiff for the period from September 1,
2013, to the present.
Plaintiff=s motions (ECF No. 123, 125) will be denied.
Defendants= motions (ECF No. 130, 143) will be denied. Plaintiff=s motion for service
regarding defendants Doyle and Schultz (ECF No. 145) will be granted in part and
denied in part.
November 10, 2017
/s/ Phillip J. Green
PHILLIP J. GREEN
United States Magistrate Judge
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