Kitchen #189265 v. Snyder et al

Filing 213

OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION 200 ; denying 207 ; granting 181 ; dismissing as moot 165 ; and dismissing as moot 206 ; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL ANDREW KITCHEN,
PLAINTIFF,
-VCORIZON HEALTH INC., ET AL.,
DEFENDANTS.

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NO. 1:16-CV-190
HONORABLE PAUL L. MALONEY

OPINION
This matter is before the Court on a number of distinct but interrelated motions. First,
Plaintiff Michael Kitchen filed a motion for reconsideration of the Court’s dismissal of his
state law claims against Defendant Corey Grahn. (ECF No. 165).
Then, Defendants Grahn and Corizon Health Incorporated filed a motion to dismiss
Plaintiff’s claims against them for failure to comply with the Court’s discovery orders. (ECF
No. 181).1 The matter was referred to the magistrate judge, who issued an R & R
recommending that the motion be granted. (ECF No. 200.) Plaintiff filed objections (ECF
No. 205) and a separate motion for an evidentiary hearing on his objections. (ECF No. 207.)
Plaintiff also appeals the magistrate judge’s orders granting the Corizon Defendants’
motion to quash Plaintiff’s subpoena for discovery and denying his motion to enforce the
subpoena. (ECF No. 206.)

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Corizon Health Incorporated appears as a moving party on this motion, but it was
dismissed as a party upon the Court adopting the Report and Recommendation of the
magistrate judge in an Opinion and Order dated January 4, 2018. The Court will refer to
the motion is Grahn’s Motion to Dismiss.

I.
Orders of magistrate judges on non-dispositive matters can be appealed under 28
U.S.C. § 636(b)(1)(A). See also W.D. Mich. LCivR 72.3(a). Legal conclusions are set aside
if they are contrary to law. United States v. Curtis, 237 F.3d 598, 603 (6th Cir. 2001) (citing

United States v. Raddatz, 447 U.S. 667, 673 (1980).
The Court is required to make a de novo determination of those portions of the
R & R to which specific objections have been made, and may accept, reject, or modify any
or all of the Magistrate Judge's findings or recommendations. 28 U.S.C. § 636(b)(1); Fed. R.
Civ. P. 72(b). “[A] general objection to a magistrate's report, which fails to specify the issues
of contention, does not satisfy the requirement that an objection be filed. The objections
must be clear enough to enable the district court to discern those issues that are dispositive
and contentious.” Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995).
II.
The Court will first take up Plaintiff’s objections to the R & R because, if adopted,
Defendant Grahn will be dismissed, and the other discovery-related disputes that remain
outstanding will become moot because neither Corizon Health Incorporated nor Grahn will
be parties to the action.
On November 10, 2017, the magistrate judge entered an Order requiring Plaintiff to
sign a release on or before November 27, 2017 that would grant the Corizon Defendants
access to his requested MDOC medical records from September 1, 2013 to the present.
(ECF No. 153 at PageID.1680–81.) The Court specifically warned Plaintiff that “if he fail[ed]
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to comply with any aspect of [the] order,” the Court would issue an R & R recommending
dismissal of his claims against the Corizon Defendants. (Id.)
Plaintiff’s next step was to complete the release granting Corizon acces to the courtordered medical records. But that’s not quite what happened.
Plaintiff unilaterally determined that the scope of the release should not include his
mental health records, so he added a sentence stating, “This authorization does not include
the release of any Mental Health records, or any psychological reports or records contained
with Medical Records, pertaining to Michael A. Kitchen (#189265).” Plaintiff’s action plainly
contradicted the Court’s prior order that required the release of both medical and mental
health records, and the instruction that Plaintiff “was not to make any modifications to the
scope of the release.” (ECF No. 153 at PageID.1680.)
Plaintiff also inserted a second condition into the release. He wrote, “[T]his request
is valid only if accompanied by an order signed by District Judge Paul L. Maloney ordering
the release of the medical records.” (ECF No. 181 at PageID.1927.)
He also failed to obtain a non-prisoner witness signature, as the release allegedly
required.
Counsel for the Corizon Defendants wrote to Plaintiff to request that he complete the
release and remove all of the extra language limiting the authorization. (ECF No. 181-2.)
Plaintiff responded that the authorization complied with the Court order:
As you requested, the Court directed me to sign that authorization, and I did
so. This is the first time that I’ve heard anything about a witness signature; for
over a year you never requested one be provided, and the Court did not order
me to have a witness sign it. As for the minor alterations to the release, that
was done to carry out the Court’s order.
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(ECF No. 181-3 (emphasis added).)
Plaintiff then attempted to use the witness signature to extract help from Corizon in a
unrelated dispute he was having with MDOC:
I would be willing to work with you, however. But, I need your client’s help in
return. If Corizon (would) contact this facility and see that prison medical
officials grant my request to access my Complete Health Record as stated in
my recent subpoena, then I will meet with my lawyer to see if I can get him to
help me execute another medical authorization to carry out your wishes, so
long as they (are) within reason.
(Id.)
Approximately two months later, the Court overruled Plaintiff’s objections to the
November 10, 2017 Order. (ECF No. 160.) But after being informed that his objections
were overruled, Plaintiff continued to violate that order, as well as the Court’s January 9,
2018 Order. Instead, plaintiff stated that defendant was “free to ask the Court for intervention
once again,” and that he would “deal with whatever order that the Court issues.” (ECF No.
181-3, PageID.1929).
The magistrate judge issued an R & R recommending that Grahn’s motion to dismiss
be granted under Rule 37(b)(2)(A) based on the facts outlined above.
“’(I)f a party has the ability to comply with a discovery order and does not, dismissal
is not an abuse of discretion.’” Stamec, Inc. v. Anson, 195 F. App’x. 473, 477 (6th Cir. 2006)
(quoting Regional Refuse Systems, 842 F.2d 150, 155 (6th Cir. 1988) (superseded on other

grounds)). Four factors are considered when determining whether dismissal is an appropriate
sanction: (1) whether the party’s failure to cooperate in discovery is due to willfulness, bad
faith, or fault; (2) whether the adversary was prejudiced by the failure to cooperate in
discovery; (3) whether the dismissed party was warned that failure to cooperate could lead to
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dismissal; and (4) whether less dramatic sanctions were imposed or considered before
dismissal. Id.
The magistrate judge concluded that Plaintiff intentionally refused to cooperate with
discovery, had received an express warning that failure to comply would result in dismissal
of his claims, that Defendant Grahn had been prejudiced by Plaintiff’s actions, and that
dismissal was entirely appropriate, even after considering lesser sanctions. (ECF No. 200 at
PageID.2056–57.) Thus, the factors weighed in favor of dismissal. (Id.)
Plaintiff objects to the R & R on several grounds. (ECF No. 205.) He asserts, without
any basis, that he was “set up,” that the record does not support dismissal as a discovery
sanction, and that he complied with the Court’s orders. (Id.)
Plaintiff’s objections are utterly without merit. First, Plaintiff claims that the magistrate
judge harbored bias toward him and ruled unfairly, so the discovery sanctions should be set
aside. This is frivolous. Plaintiff has not identified any rulings by the magistrate judge that
demonstrate any bias or unfairness. In fact, the Court has affirmed numerous rulings by the
magistrate judge in the case. (See ECF No. 160.) Plaintiff also argues that the magistrate judge
acted unfairly when instructing him that failure to sign the medical release authorization
would result in dismissal. Instructing a litigant on the consequences of flouting court orders
is not improper. In fact, warnings are necessary before dismissal of claims as a discovery
sanction. Stamec Inc, 195 F. App’x at 477.
Plaintiff next claims that the record does not support the magistrate judge’s
recommendation of dismissal. Plaintiff focuses his energy on arguing that MDOC policy did
not require a non-prisoner witness signature. He wholly ignores his unilateral change in the
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scope of release or his added condition that the authorization be accompanied by an order
of the undersigned, effectively ignoring the magistrate judge’s order.
Plaintiff’s modification of the release—in direct contravention of the magistrate judge’s
order—and his subsequent refusal to comply with the order support the conclusion that
dismissal with prejudice is warranted. “A magistrate judge’s order on a non-dispositive matter
is effective when entered, and the filing of objections to a magistrate judge’s order on a nondispositive matter does not automatically stay the order’s operation.” Johnson v. Jondreau,
No. 2:13-cv-260, 2015 WL 5749737, at *1 (W.D. Mich. Sept. 30, 2015).
So too does the prejudice experienced by Defendant Grahn—he first requested
Plaintiff’s medical records in August of 2016 and has been stonewalled by Plaintiff’s
obstinance for more than 18 months. As previously discussed, the magistrate judge’s explicit,
unequivocal warning that Plaintiff’s claims would be subject to dismissal should he fail to
comply with the November 10 Order is further support.
Finally, the magistrate judge clearly expressed that he had considered lesser sanctions,
but found that in light of Plaintiff’s sufficiently egregious course of conduct, dismissal was
appropriate. (ECF No. 200 at PageID.2056.) Thus, the record before the Court
overwhelmingly supports the magistrate judge’s recommendation of dismissal.
Kitchen lastly mounts a half-hearted attempt to argue that he actually did comply with
the Court’s order. Again, this is a patently false and frivolous argument. The plain,
unmistakable language of the November 10, 2017 Order instructed him to modify only the
date range for the authorization of his records and complete the authorization granting
Corizon access to the records within the date range. Plaintiff then took it upon himself to
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narrow the scope of the release to exclude his mental health records—despite claiming
damages for mental distress in his complaint—and include a second condition that effectively
voided the magistrate judge’s order and conditioned the release on an order from the
undersigned. Plaintiff’s violation of the November 10, 2017 order could not be any more
plain.
As one final matter, the Court will address Plaintiff’s motion for an evidentiary hearing
on his objections. (ECF Nos. 206, 207.) Plaintiff contends that he was justified in not having
a witness sign the release form because MDOC policy does not require it. However, as the
Court as already explained, Plaintiff violated the Court’s November 10, 2017 order in a
myriad of ways independent of the witness signature. An evidentiary hearing, for yet
unknown witnesses, who would apparently testify that MDOC policy does not require a nonprisoner witness signature, is not necessary to resolve Plaintiff’s objections. Accordingly, the
motion (ECF No. 207) for an evidentiary hearing on Plaintiff’s objections will be denied.
III.
Accordingly, the Court concludes that Defendant Grahn’s motion to dismiss will be
granted, as recommended by the magistrate judge.

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ORDER
Based on the foregoing, the Court DENIES Plaintiff’s motion (ECF No. 207) for an
evidentiary hearing, OVERRULES Plaintiff’s objections (ECF No. 205) to the R & R, and
ADOPTS the R & R (ECF No. 200) as the Opinion of the Court.
Defendant Grahn’s motion (ECF No. 181) to dismiss is GRANTED.
Defendant Corey Grahn is DISMISSED from this action WITH PREJUDICE.
Plaintiff’s motion (ECF No. 165) for reconsideration is DISMISSED AS MOOT.
Plaintiff’s Appeal to the District Court Judge (ECF No. 206) is DISMISSED AS
MOOT.
IT IS SO ORDERED.
Date: May 29, 2018

/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge

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