Kitchen #189265 v. Corizon Health Incorporated et al

Filing 112

OPINION ; signed by Magistrate Judge Phillip J. Green (Green, Phillip)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHAEL ANDREW KITCHEN,

)
)
)
Plaintiff,
)
)
v.
)
)
CORIZON HEALTH INC., et al.,
)
)
Defendants.
)
____________________________________)
# 189265,

Case No. 1:16-cv-1068
Honorable Janet T. Neff

OPINION
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. 111). His complaint arises out of conditions of his confinement at the Michigan
Reformatory from October 29, 2015, through November 23, 2015, and at the Bellamy
Creek Correctional Facility from November 24, 2015, through July 12, 2016.
Plaintiff is dissatisfied with the decisions of medical professionals regarding how
frequently he can obtain refills of an inhaler that has been prescribed and provided
as treatment for his asthma and cardiopulmonary disease (COPD).
Plaintiff filed this lawsuit on August 29, 2016. The defendants are divided
into two groups.

The first group of defendants is Corizon Health, Incorporated

(Corizon) and its employees Nurse Practitioners Corey Grahn and Andrea Lindhout
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(collectively referred to as the Corizon defendants). The second group of defendants
(collectively referred to as the MDOC defendants) is comprised of employees of the
Michigan Department of Corrections: Registered Nurse Lindsey Taylor, Registered
Nurse R. Harbaugh, Corrections Officer Burch, Registered Nurse Diana Whitelock,
Registered Nurse S. Gregurek, Corrections Officer Nixon, Registered Nurse S.
Buskirk, Registered Nurse Kevin Corning, Registered Nurse Joshua Langdon,
Michigan Reformatory=s Health Unit Manager Bryan Deeren, Registered Nurse and
Clinical

Administrative

Assistant

of

the

Southern

Region

Health

Care

Administration Laura Kinder, and Manager of the MDOC=s Grievance Section of the
Office of Legal Affairs Richard Russell.
The matter is before the Court on a series of motions: the MDOC defendants’
motion for a stay of discovery (ECF No. 61), the motion by the Corizon defendants to
compel discovery (ECF No. 66), plaintiff’s motion to strike the MDOC defendants’
motion for a stay of discovery (ECF No. 71), plaintiff’s motion for a protective order
(ECF No. 72), plaintiff’s motion to strike defendants’ brief (ECF No. 77), plaintiff’s
motion to quash a subpoena, for sanctions, and request for an extension of time to file
a motion (ECF No. 80), plaintiff’s motion to compel against the Corizon defendants
(ECF No. 90), plaintiff’s motion to enforce subpoenas and for an extension of time to
file a response to the MDOC defendants’ motion for summary judgment (ECF No. 95),
and a motion by the Corizon defendants for an extension of their deadline for filing a
motion for summary judgment (ECF No. 103).
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Upon review, the motion to stay discovery (ECF No. 71), the motion to strike
(ECF No. 77), the motion to extend time (ECF No. 80), and the motion to enforce
subpoenas and to extend time (ECF No. 95) will be denied. The Corizon defendants’
motion to compel (ECF No. 66) will be granted and plaintiff will be ordered to sign
the release for the MDOC’s records. Other motions (ECF No. 61, 72, 90, 103) will be
granted in part and denied in part as specified herein.
1. MDOC Defendants’ Motion for Protective Order
The MDOC defendants filed a motion for summary judgment based on the
affirmative defense provided by 42 U.S.C. ' 1997e(a).

Under the paragraph 2(c) of

the Court’s case management order (ECF No. 22, PageID.109), discovery against the
MDOC defendants was limited to the issue of exhaustion of administrative remedies.
The discovery sought by plaintiff (see ECF No. 62-1, PageID.646, PageID.646-48) was
not limited to the issue of exhaustion of administrative remedies on the claims at
issue in this lawsuit. The MDOC defendants’ motion for a protective order (ECF No.
61) will be granted in part and denied in part.

The motion will be granted to the

extent that the Court will continue to enforce the case management order’s limitation
of discovery against the MDOC defendants to the issue of exhaustion of
administrative remedies and the time period for conducting such discovery has
passed.

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2. Plaintiff’s Motions to Strike
On March 31, 2017, plaintiff filed a motion to strike the MDOC defendants’
motion for a protective order (ECF No. 71) and a motion to strike a “[b]rief filed by
the MDOC Defendants responding to Plaintiff’s motion for a protective order against
the Corizon Defendants” (ECF No. 77). Upon review, plaintiff’s motions to strike
will be denied for multiple reasons.

First, the Court has determined that the MDOC

defendants are entitled to a protective order.
Second, the challenged motion and brief are not pleadings under Rule 7(a) and
plaintiff has not established grounds for striking those documents under Rule 12(f).
See FED. R. CIV. P. 7(a), 12(f); see also Lucas v. JBS Plainwell, Inc., No. 1:11-cv-302,
2011 WL 5408843, at *1 (W.D. Mich. Nov. 8, 2011).
Third, plaintiff’s argument that the documents “should be stricken from the
record because their lawyer has not been given leave of court to make an appearance”
(ECF No. 78, PageID.749) is frivolous.
Court to make an appearance.

Defendants’ attorney did not require leave of

Defendants can be represented by more than one

attorney.
Fourth, Local Civil Rule 7.1(d) is an attempt to help the Court deal with the
proliferation of non-dispositive civil motion practice – a problem that is wellillustrated by this case.

Rule 7.1(d) is designed to force the moving party to ascertain

whether the motion will be opposed, confer in a good faith effort to resolve the dispute,
and to provide the Court with a separately filed certificate in writing “setting forth in
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detail the efforts of the moving party to comply with the obligation created by this
rule.”

W.D. MICH. LCIVR 7.1(d).

It is patent that Rule 7.1(d) was not intended to

exacerbate the existing problem by creating opportunities for another yet layer of
motions based on assertions that a movant’s certification was “false” or that efforts
to resolve the matter before filing the motion were not made in good faith. (ECF No.
71, PageID.710-12).

While a purported deficiency in the movant’s certification

might warrant some limited discussion in a brief filed in opposition to a motion, it
should never spawn a round of motions to strike.

Plaintiff’s motions to strike will be

denied.
3. The Corizon Defendants’ Motion to Compel and Plaintiff’s Motion for a
Protective Order
On March 17, 2017, the Corizon defendants filed a motion to compel.
No. 66).

(ECF

It is beyond question that plaintiff placed his medical records and

treatment at issue by filing this lawsuit claiming that he received constitutionally
inadequate medical care.

The Corizon defendants are seeking a Court order

compelling plaintiff to sign an authorization for release of the MDOC’s records
regarding plaintiff for the period between from February 1, 2011 and the present.
(Id. at PageID.686).
On March 31, 2017, plaintiff filed a motion captioned as a “MOTION FOR
PROTECTIVE AND/OR QUALIFIED PROTECTIVE ORDER.” (ECF No. 72).
Plaintiff concedes that the Corizon defendants are entitled have access to the MDOC’s
medical records regarding his condition and medical care.
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(Id. at PageID.731).

Plaintiff seeks to restrict the Corizon defendants’ access to only those records related
to his asthma and COPD.

Plaintiff would like to inspect the medical records before

the MDOC provides them to the Corizon defendants.

He would like the Court to

prohibit the Corizon defendants from having ex parte communications with medical
care providers. He asks the Court to order someone to “redact” his social security
number and birth date from any documents released to the Corizon defendants.
Plaintiff also desires that the Court make provisions preventing unauthorized
disclosures of the medical records, order that any medical records released be
destroyed at the end of the litigation, and order that access to the medical records be
restricted to attorneys of record.

(Id. at PageID.733-38).

Upon review, plaintiff’s

motion for a protective order will granted in part and denied in part.

Plaintiff will

be ordered to sign the release for the MDOC’s medical records, and if he fails to sign
the release (ECF No. 66-2, PageID.692) and mail it to the attorney for the Corizon
defendants and file proof of service of same with the Court on or before November 24,
2017, a report and recommendation will enter recommending that all plaintiff’s
claims against the Corizon defendants be dismissed with prejudice.
Prisoners claiming 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 Simon v. Cook, 261 F. App=x 873, 886

(6th Cir. 2008) (waiver of federal common law psychotherapist-patient privilege);
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Maday v. Public Libraries of Saginaw, 480 F.3d 815, 821 n.2 (6th Cir. 2007) (waiver
of state-law privilege); Fuller v. Kerr, No. 2:13-cv-13171, 2015 WL 1565367, at *2-3
(E.D. Mich. Apr. 8, 2015) (waiver of federal common law psychotherapist-patient
privilege); Romano v. SLS Residential, Inc., 298 F.R.D. 103, 112-15 (S.D.N.Y. 2014)
(waiver of HIPAA protections).
In addition, given the public’s constitutionally-based right to know the
evidence on which this Court bases a decision on a motion for summary judgment,
motions to seal summary judgment exhibits, including medical records, are regularly
denied by this Court. See, e.g., McCallum v. Corizon, Inc., No. 1:15-cv-700 (W.D.
Mich. Sept. 21, 2016) (Order denying Corizon’s motion to seal summary judgment
exhibit); Simmons v. Rogers, No. 1:14-cv-1242 (W.D. Mich. March 21, 2016) (same).
“The Sixth Circuit has pointed out that the presumption of access to court
proceedings finds its genesis in the founding principles of this country and a revulsion
against secret judicial proceedings, such as those held in the Star Chamber and other
prerogative courts.” Martis v. Dish Network, No. 1:13-cv-1106, 2013 WL 6002208,
at *1-2 (W.D. Mich. Nov. 12, 2013) (citing Brown & Williamson Tobacco Corp. v. FTC,
710 F.2d 1165, 1177-79 (6th Cir. 1983)). The presumption has roots both in the First
Amendment and the common law, and it applies to pleadings, motions, and other
documents that bear on the merits of a controversy.

Martis, 2013 WL 6002208,

at *1. “The parties are privileged to negotiate in secret, but they must litigate in

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public.” Encana Oil & Gas (USA), Inc. v. Zaremba Family Farms, Inc., No. 1:12-cv369, 2012 WL 1377598, at *2 (W.D. Mich. Apr. 19, 2012).
Plaintiff concedes that the Corizon defendants should be permitted access to
the MDOC’s medical records for the time period that they have requested. (ECF
No. 73 at PageID.734). He asks, however, that the Court limit defendants’ access to
records regarding “(1) the prescription and use of inhalers and medication given to
Kitchen to control his asthma and (2) the treatment by physicians and medical
providers of Kitchen’s asthma or chronic obstructive pulmonary disease from
February 1, 2011 to January 1, 2017.” (Id. at PageID.732). Defendants respond
that plaintiff placed his medical condition at issue, and that he is not entitled to
restrict defendants’ access in the manner suggested. (ECF No. 89 at PageID.815-20).
Plaintiff alleges that he suffered a broad range of injuries and he claims
entitlement to extensive damages. Every count that plaintiff lists in his complaint
includes allegations that as a result of defendants’ actions, plaintiff, “suffered
damages including without limitation bodily injury and resulting pain and suffering,
disability, mental anguish, and the capacity for the enjoyment of life. The losses
described are permanent or continuing in nature and [plaintiff] will suffer such losses
in the future.” (ECF No. 1 at ¶¶ 113, 118, 123, 128, 133, 137, 141, PageID.18-25).
“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
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the requested MDOC records regarding plaintiff for the period from February 1, 2011,
to the present.
Plaintiff asks that the Court order that he be permitted to inspect the records
before the MDOC provides them to the Corizon defendants.
PageID.734-35).

Plaintiff has no such right of inspection.

(ECF No. 73 at

Plaintiff invokes the

Michigan Medical Records Access Act, MICH. COMP. LAWS ' 333.26261, et seq., (ECF
No. 73 at PageID.735), 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 Court=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)).

There is 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.”).
Plaintiff asks that the Court “prohibit the Corizon Defendants from having ex
parte communications with his medical providers.” (ECF No. 73 at PageID.736).
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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
federal courts).
Plaintiff cites 45 C.F.R. § 164.512(e)(v), which states:
(v) For purposes of paragraph (e)(1) of this section, a qualified protective order
means, with respect to protected health information requested under
paragraph (e)(1)(ii) of this section, an order of a court or of an administrative
tribunal or a stipulation by the parties to the litigation or administrative
proceeding that:
(A) Prohibits the parties from using or disclosing the protected health
information for any purpose other than the litigation or proceeding for
which such information was requested; and

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(B) Requires the return to the covered entity or destruction of the
protected health information (including all copies made) at the end of
the litigation or proceeding.
Although defendant opposes plaintiff’s motion because plaintiff is asking the Court
to impose a host of additional restrictions, nothing in defendants’ brief suggests that
a straightforward qualified protective order sufficient to satisfy the above referenced
requirements would be opposed.

Only this portion of plaintiff’s motion will be

granted and the Court’s order will contain basic provisions sufficient to satisfy 45
C.F.R. § 164.512(e)(v). The Court is granting this relief to avoid potential further
delays in getting the medical records into the hands of the Corizon defendants.1
In addition, to the above referenced provision regarding destruction of records,
plaintiff would like the Court to “require the Corizon defendants to send the released
medical records, and all copies made of them, to an attorney selected by [plaintiff] or
the Court at the end of the litigation, so that the records can be properly destroyed.”
(ECF No. 73, PageID.737).
requirements.

HIPPA and its regulations contain no such

There is nothing before the Court suggesting that defendants’

attorneys will be unable to properly dispose on any medical records at the conclusion
of this lawsuit and all related appeals.
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

The Court’s order will also grant Corizon defendants’ motion for an extension of
time to file their motion for summary judgment and establish a briefing schedule.

1

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No. 73 at PageID.736). 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.
Plaintiff asks the Court to order that the MDOC’s medical records should only
be “seen by attorneys Ronald W. Chapman, Sr., Carly Van Toomme, Patrick L. Klida,
and Adam P. Sadowski.” (ECF No.73 at PageID.737). The Court, in its discretion,
declines to impose the suggested restriction because it would improperly intrude on
the Corizon defendants’ ability to defend against plaintiff’s claims.
4. Plaintiff’s Motion to Quash a Subpoena
On January 6, 2017, the Corizon defendants issued a notice of a subpoena that
they would be serving on the Michigan Department of Corrections, including a proof
of service on plaintiff.

(ECF No. 81-1, PageID.767-68). Under Rule 5(b)(2)(C), the

service on plaintiff was complete upon mailing.

FED. R. CIV. P. 5(b)(2)(C).

The

subpoena called for the production of the following documents in Troy, Michigan, on
February 6, 2017:

“A certified copy of all documents pertaining to Step III

grievances filed by Michael Kitchen, # 189265 during his incarceration with the
Michigan Department of Corrections from 2/1/2011 through [p]resent[,] including a
copy of his grievance history report.”

(ECF No. 81-1, PageID.770).

On January 6,

2017, the Corizon defendants sent the subpoena to the MDOC by certified mail.
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(ECF No. 81-1, PageID.769).

The MDOC did not object and it produced the

grievance records.
On March 31, 2017, more than a month after the scheduled date for production,
plaintiff filed a motion in this Court to quash a subpoena, for sanctions, and for an
extension of time to file the aforementioned motions.
motion to quash must be denied.

(ECF No. 80).

Plaintiff’s

Rule 45(d)(3)(A) requires that a motion to quash

be “timely” and that it be filed in the district “where compliance is required.”
Plaintiff=s motion failed to satisfy either requirement.
Further, assuming arguendo that plaintiff=s motion had been timely and
properly filed in this Court, the motion would have been denied.

Plaintiff has

identified a technical deficiency in the Corizon defendants’ service of the third party
subpoena under Rule 45(a)(4). Rule 45(a)(4) does require that before the subpoena
is served on the person to whom it is directed, a notice and a copy of the subpoena
must be served on each party.2

FED. R. CIV. P. 45(a)(4).

The mere identification of

The Court finds the Corizon defendants’ argument based on Rule 45(b)(1)’s
use of the term “delivery” (ECF No. 88 at PageID.801-02) is not persuasive. Delivery
under Rule 45 has historically been interpreted to require personal service. Garvins
v. Hofbauer, No. 2:09-cv-48, 2012 WL 1578919, at *2 (W.D. Mich. May 4, 2012). The
Sixth Circuit has not endorsed the minority position that other forms of service
suffice. Further, persuasive legal authorities warn attorneys that until Rule 45(b)
is clarified, “personal delivery is the safest course for counsel to follow.” 9A CHARLES
ALAN WRIGHT,& ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE ' 2454 at 401
(3d ed. 2008). However, like other “technical deficiencies” regarding service, the
deficiency of service of the subpoena by certified mail is generally overlooked where
the party received notice of the subpoena and was not prejudiced by the method of
service. Garvins, 2012 WL 1578919, at *2.
2

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the technical deficiency, however, is generally not considered sufficient for the drastic
step of quashing a subpoena. See Gorken Am. LLC v. Bandepalya, No. 2:14-cv-1445,
2014 WL 7392357, at *2 (S.D. Ohio Dec. 29, 2014); Systems Prod. & Solutions, Inc. v.
Scramlin, No. 13-cv-14947, 2014 WL 3894385, at *6 (E.D. Mich. Aug. 8, 2014).
Plaintiff’s other arguments for quashing the subpoena (ECF No. 81 at
PageID.762-64) are not persuasive.

The failure to file proof of service of a subpoena

with the Court under Rule 5.2 of the Local Civil Rules does not constitute grounds for
quashing a subpoena.

Prisoner grievances are matters of public record, not

privileged or confidential. See e.g., Dunham v. Malik, No. 4:13-cv-10001, 2014 WL
4414506, at *3 (E.D. Mich. July 18, 2014); Bradfield v. Corr. Med. Servs., No.1:07-cv1016, 2008 WL 5685586, at *5 (W.D. Mich. July 3, 2008).
a “back door” to plaintiff’s medical records.

Grievances do not provide

(ECF. No. 81 at PageID.763).

The

Corizon defendants were clearly entitled to the MDOC’s grievance records in order to
make a determination whether plaintiff had exhausted his administrative remedies
on the claims asserted before he filed this lawsuit. See 42 U.S.C. ' 1997e(a).

There

is no foundation for imposing sanctions or any other relief that plaintiff requests.
Plaintiff=s motion will be denied.
5. Plaintiff’s Motion to Compel against the Corizon Defendants
On April 17, 2017, plaintiff filed a motion to compel discovery against the
Corizon defendants.
(ECF No. 99).

(ECF No. 90).

The Corizon defendants oppose the motion.

Upon review, plaintiff’s motion to compel will be granted in part and
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denied in part.
against Corizon.

The motion will be granted only as to a reformulated interrogatory
Plaintiff’s motion will be denied in all other respects.

A. Requests for Production of Documents
Plaintiff asks the Court to overrule defendants’ objections and order the
defendants to produce documents responsive to two requests for production of
documents.

The initial request and response provided defendants response are set

forth below:
1.
Please produce for inspection and, if necessary, copying any and all
documents which depict the number of times within the last seven (7) years
that medical expenses of costs of Michigan Prisoners, including Plaintiff
Kitchen and any and all other prisoners who have or have had asthma, chronic
obstructive pulmonary disease (COPD), and/or any other respiratory disease,
have reached the “risk-share target” and the “risk-share maximum cap”, as
defined in the contract that the Michigan Department of Corrections (MDOC)
and/or the State of Michigan has signed with Defendant Corizon, or any other
corporate and/or business name that Defendant Corizon was formerly known
by, and/or any contract that the MDOC and/or Michigan has signed with
Valitas Health Services, Valitas Incorporate, Valitas Equity, LLC, or any of its
subsidiaries or “branch” corporations, companies, or businesses to provide
medical care services to Michigan’s prisoner population.
ANSWER: Defendants object to this request as vague, ambiguous, overbroad,
unduly burdensome, unrelated to the claims and defenses in this case, and not
proportional to the needs of this case. See FED. R. CIV. P. 26(b). Defendants
further object to the extent Plaintiff seeks documents in the custody,
possession, and control of the Michigan Department of Corrections (“MDOC”),
such as health records. Defendants are not the custodians of such records.
Defendants do not have the obligation to produce documents that are not in
their possession, custody, or control. See FED. R. CIV. P. 34. Defendant
objects to this request on the basis that the requested documents in its custody
are privileged, confidential, and/or not discoverable on the basis that they are
peer/professional/quality review materials and or patient safety work product
protected from disclosure in litigation by federal and/or state law. See MCL
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§ 331.533; MCL § 333.20175(8); MCL § 333.21515; 42 USCS § 299b-21, et. seq.;
42 C.F.R. § 3.20, et. seq., and in particular 42 C.F.R. § 3.204.
(ECF No. 91-3, PageID.837-38).
Plaintiff’s brief does not attempt to engage defendants’ objections.

He argues

that the documents are relevant because he has alleged in his complaint that “he is
being deprived of medical care because the Corizon Defendants’ position is that
medical costs are expensive[.]” (ECF No. 91 at PageID.826). Plaintiff cites no legal
authority in support of his argument.

(Id.). Defendants’ objections to this request

because it is overbroad, unduly burdensome, not proportional to the needs of this case
are sustained.

It is not necessary to address any other objections.

The other request and response at issue are set forth below:
2.
Please produce for inspection and, if necessary, copying any and all
documents, memorandums, electronic messages, or any and all other
communications, whether electronic or otherwise, that were distributed to
medical providers and/or any other persons responsible for providing medical
care services to any prisoner population on behalf of Defendant Corizon, and/or
any officer, agent, supervisor, or employee of Defendant Corizon, and/or other
corporation, company, and/or subsidiary that Defendant Corizon was formerly
known by, that governs, instructs, or in any other way discusses the
distribution and/or prescription to Plaintiff Kitchen and to any other prisoner
of Q-Var inhalers and/or Ventolin, Alubertol, or Proair HFA inhalers, or any
other type of inhaler referred to as a “rescue inhaler”, including, but not limited
too, any such document, memorandum, electronic message, and/or other any
other type of communication, whether electronic or otherwise, which discussed
the costs of such inhalers and/or the manner in which prescriptions and/or
distributions for such inhalers to prisoners were discussed.
ANSWER: Defendants object to this request as vague, ambiguous, overbroad,
unduly burdensome, unrelated to the claims and defenses in this case, and not
proportional to the needs of this case because it imposes an unlimited burden
to identify every individual, regardless of location, level of involvement, or
relationship with Defendants, who has “any and all ... communications”
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regarding “Q-Var inhalers and/or Ventolin, Alubertol, or Proair HFA
inhalers, or any other type of inhaler referred to as a “rescue inhaler...”
Defendants cannot reasonably comply with this request. See FED. R CIV.
P. 26(b). Defendants further object to the extent Plaintiff seeks documents in
the custody, possession, and control of the Michigan Department of Corrections
(“MDOC”), such as health records. Defendants are not the custodians of such
records. Defendants do not have the obligation to produce documents that are
not in their possession, custody, or control.
See FED. R. CIV. P. 34.
Defendants further object to this interrogatory on the ground that it seeks
information within the control of other non-parties whose documents,
communications, and deliberations are not within Plaintiff’s [sic] possession,
custody, or control. Defendant objects to this request on the basis that the
requested documents in its custody are privileged, confidential, and/or not
discoverable on the basis that they are peer/professional/quality review
materials and or patient safety work product protected from disclosure in
litigation by federal and/or state law.
See MCL § 331.533; MCL
§ 333.20175(8); MCL § 333.21515; 42 USCS § 299b-21, et. seq.; 42 C.F.R.
§ 3.20, et. seq., and in particular 42 C.F.R § 3.204. Notwithstanding and
without waiving these objections see attached documents.
(ECF No. 91-3, PageID.838-39).
Plaintiff again argues that the documents are relevant; but he cites no
supporting legal authority and he ignores defendants’ objections.
PageID.826).

(ECF No. 91 at

Plaintiff’s request is devoid of temporal and geographic limitations

attempting to tie his requests to the claims at issue in this lawsuit, which include the
adequacy of the medical care relating to the receipt of inhalers.

Defendants’

objections to this request as overbroad, unduly burdensome, not proportional to the
needs of this case are sustained.

It is not necessary to address defendants’ other

objections.

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B. Interrogatories
Plaintiff is dissatisfied with Corizon’s response to four of his interrogatories.
The first interrogatory and response at issue are set forth below:
1.
What is the cost of each Q-Var, Ventolin, Albuterol, and/or Proair HFA
inhaler that have been prescribed and distributed to Plaintiff Kitchen, and to
all other prisoners within the MDOC, since Defendant Corizon was and/or the
name of the subsidiary or company that Defendant Corizon was formerly
known by, has been in a contract with the MDOC and/or Michigan to provide
prisoners with medical care services?
ANSWER: Defendants object[] to this interrogatory as unduly burdensome,
ambiguous, overly broad, and vague as to what Plaintiff means by or how he
defines the term “cost.” Defendants further object to this request on the basis
that (1) it is not reasonably calculated to lead to the discovery of admissible
evidence; (2) is unlimited in time; (3) it is intended to harass, annoy, and
embarrass Defendants; and (4) the information sought is not proportional to
the needs of the case. Defendants cannot answer this interrogatory as
written.
(ECF No. 91-3 at PageID.840).
Plaintiff argues that the cost of each inhaler goes to his claim that he is being
deprived of them because of their cost and he is seeking information about the
number of prisoners receiving inhalers to determine the amount of money actually
expended to pay for those inhalers.

(ECF No. 91, PageID.827).

Plaintiff’s

complaint concerns the adequacy of medical care that he received, not the adequacy
of anyone else’s medical care.
claims.

His request lacks temporal limitations tied to his

Corizon’s objections to this interrogatory as overbroad, unduly burdensome,

and not proportional to the needs of this case are sustained.

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The next interrogatory and response at issue concern a medical provider
formerly employed by Corizon who allegedly treated plaintiff during the period at
issue:
2.
What was the reason that Physician Assistant George Johnson was
terminated or resigned? Mr. George Johnson was formerly employed by
Defendant Corizon and assigned to work at the Bellamy Creek Correctional
Facility prior to his termination or resignation?
ANSWER: Defendants object[] to this interrogatory on the basis that (1) it is
not reasonably calculated to lead to the discovery of admissible evidence; (2) it
is intended to harass, annoy, and embarrass Defendants; (3) it is not relevant
to any party’s claim or defense; (4) the information sought is personal and
confidential.
(ECF No. 91-3 at PageID.840-41).
Plaintiff simply states that “Johnson treated [his] condition while at IBC.”
(ECF No. 91 at PageID.827).

Corizon simply states:

“Plaintiff has not

demonstrated how the reason why a non-defendant former Corizon provider left the
company would lead to the discovery of admissible evidence, because he implicitly
concedes such information would be personal and confidential.”
PageID.900).

(ECF No. 99 at

Neither argument serves to adequately frame the issue.

Corizon will

be directed to answer the following revised interrogatory, consisting of two parts:
Was Physician’s Assistant George Johnson assigned to work at the Bellamy Creek
Correctional Facility during the period at issue from November 24, 2015, through
July 12, 2016? If yes, was the reason that that he was terminated or resigned based
on the medical care that he provided to plaintiff or the frequency with which plaintiff
could obtain refills for his inhalers?
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The next interrogatory and response at issue concern confidentiality
agreements:
3.
Does Defendant Corizon, or any of its officers, agents, supervisors,
and/or other employees, require its employees to sign a confidentiality
agreements? If so, please provide a copy of that agreement.
ANSWER: Defendants object[] to this interrogatory on the basis that (1) it is
not reasonably calculated to lead to the discovery of admissible evidence; (2) it
is intended to harass, annoy, and embarrass Defendants; (3) it is not relevant
to any party’s claim or defense; and (4) confidentiality is vague and ambiguous.
(ECF No. 91-3 at PageID.841).
Plaintiff states that he asked about confidentiality agreements because he
wants to know whether Corizon employees can divulge the information that he is
seeking. (ECF No. 91 at PageID.827). Corizon’s objection that this interrogatory
is not reasonably calculated to lead to the discovery of admissible evidence is
sustained.
Plaintiff’s remaining interrogatory directed to Corizon was remarkable in its
breadth:
4.
Please provide the names and numbers of any and all prisoners
confined, and those that were previously confined, within the Michigan
Department of Corrections (MDOC) that have or have had asthma, chronic
obstructive pulmonary disease, or any other respiratory disease, and of whom
were prescribed and/or given a Q-Var inhaler and/or a Ventolin, Albuterol,
Proair HFA, and/or any other type of inhaler referred to as a “rescue inhaler”
within the medical community.
ANSWER: Defendants object to this request as vague, ambiguous, overbroad,
unduly burdensome, unrelated to the claims and defenses in this case, in
violation of HIPAA, and not proportional to the needs of this case because it
imposes an unlimited burden to identify every individual, regardless of
location, level of involvement, or relationship with Defendants, who have
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“ever been confined” within the MDOC “that have or have had asthma, chronic
obstructive pulmonary disease, or any other respiratory disease, and of whom
were prescribed and/or given a Defendants cannot reasonably comply with this
request. See FED. R. CIV. P. 26(b). Defendants further object to the extent
Plaintiff seeks documents in the custody, possession, and control of the
Michigan Department of Corrections (“MDOC”), such as health records.
Defendants are not the custodians of such records. Defendants do not have
the obligation to produce documents that are not in their possession, custody,
or control. See FED. R. CIV. P. 34.
(ECF No. 91-3 at PageID.841-42).
Corizon’s objections to this request as overbroad, unduly burdensome, and not
proportional to the needs of this case are sustained.

It is not necessary to address

defendants’ other objections.
Plaintiff argues that defendant Grahn’s objections to two of his interrogatories
should be overruled.

(ECF No. 91 at PageID.827-28).

The first interrogatory and

the corresponding objection are set forth below:
1. What type of breathing or respiratory difficulties does peak flows with an
average of 230 or below indicate?
ANSWER: Defendant objects to this Request as vague and ambiguous as to
what Plaintiff means by “type of breathing or respiratory difficulties.”
Defendant further objects to this interrogatory on the basis that the Defendant
is unable to speculate as to the type of individual Plaintiff is inquiring about.
Defendant has no independent recollection or specific knowledge of Plaintiff’s
peak flow results other than what may be found in his medical records.
Moreover, Defendant further objects to this interrogatory on the basis that
interpreting peak flow results is dependent on a person’s sex, age, and height.
Responding to this interrogatory would require defendant to speculate
Plaintiff’s height and age. Defendant cannot answer the interrogatory as
written.
(ECF No. 91-3 at PageID.842).

The objections are sustained.

Plaintiff’s argument

that he was not asking “about peak flows relating to any individual person” (ECF
-21-

No. 91 at PageID.827) simply reinforces the appropriateness of the objections.
Interpreting peak flow results depends on the test subject’s sex, age, and height.
Plaintiff elected to block defendant Grahn’s access to the relevant MDOC medical
records, and thus made it impossible to Grahn to overlook the vague and ambiguous
portions of this interrogatory and attempt to formulate a response describing what a
specific peak flow test results involving plaintiff, within the range described, might
indicate.3
The second interrogatory and Grahn’s objection were as follows:
2. Who told you to limit refills or renewals of the rescue inhalers” (i.e.,
Albuterol and/or Proair HFA Inhalers) for Plaintiff Kitchen to once every
three months?
ANSWER: Defendant objects to this interrogatory as vague, ambiguous,
unlimited in time and argumentative. Subject to and without waiving the
foregoing objections, Defendant has no independent recollection or specific
knowledge of limiting refills or renewals of Plaintiff’s “rescue inhalers” other
than what may be found in his medical records. Moreover, Defendant further
objects to this interrogatory on the basis that discovery is ongoing and it is not
fully known to Defendant at this time exactly what medical treatment was
provided to Plaintiff. Defendant does not yet have a copy of Plaintiff’s medical
records.
(ECF No. 91-3 at PageID.842-43).

The objections are sustained and the answer

provided was appropriate.

Peak flow is “a measurement of the volume of air a patient can exhale in one
forceful breath.” Smith v. Honda of Am. Mfg., Inc., 101 F. App’x 20, 22 (6th Cir.
2004). A test subject’s effort level may invalidate or skew the results of pulmonary
function tests. See e.g., Harraway v. Commissioner, 3:16-cv-110, 2017 WL
3327032, at *4 (S.D. Ohio Aug. 4, 2017); Grover v. Commissioner, No. 1:11-cv-1208,
2013 WL 3049086, at *4-9 (W.D. Mich. June 17, 2013).
3

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Plaintiff argues that “access to [his] medical file [was] not needed, because if
[Grahn] was given a general order to limit refills of asthma related inhalers to all
asthmatic prisoners then he can respond to this interrogatory.”

(ECF No. 91 at

PageID.828). Plaintiff’s argument is unpersuasive and does not correspond to his
interrogatory.

Plaintiff asked defendant Grahn to identify who told him to limit

refills or renewals of plaintiff’s “rescue inhalers” to once every three months.

Grahn

had no independent recollection and plaintiff had blocked his access to the relevant
medical records.
Plaintiff argues that defendant Lindhout could have provided a response to his
third interrogatory and that Lindhout’s objections should be overruled. (ECF No. 91
at PageID.828).

The Court disagrees.

Plaintiff asked the following interrogatory:

If Plaintiff Kitchen’s prescription for use of his Albuterol and/or Proair HFA
was two puffs every four to six hours as needed, and Kitchen used it as
prescribed, then how many puffs per day would Plaintiff Kitchen use out of his
rescue inhalers?
(ECF No. 91-3 at PageID.844).

The objections made to this interrogatory were as

follows:
Defendant object to this Request as vague and ambiguous as to what Plaintiff
means by “use out of his rescue inhalers.” Defendant further objects to this
interrogatory on the basis that Defendant is unable to speculate as to how
frequently plaintiff used a medication that was prescribed for him “as needed.”
Moreover, Defendant further objects to this interrogatory on the basis that
discovery is ongoing and it is not fully known to Defendant at this time exactly
what Plaintiff’s prescription was or his history of use. Defendant does not yet
have a copy of Plaintiff’s medical records.
(Id.).
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Lindhout notes that, with a prescription for use “as needed,” it is impossible to
determine the length of time over which plaintiff may use the prescription before it
is empty.

Further, plaintiff’s refusal to sign the release for the medical records

deprived defendant Lindhout of the specific information necessary to put the
interrogatory in context and attempt to answer it.

The objections are sustained.

6. Plaintiff’s Motion to Enforce Subpoenas
On March 10, 2017, plaintiff mailed two subpoenas demanding that third
parties produce documents on April 10, 2017, at the Saginaw Correctional Facility.4
(ECF No. 92-6 at PageID.862, 867).

On April 24, 2017, plaintiff filed a motion to

enforce subpoenas and for an extension of time to file a response to the MDOC
defendants’ March 6, 2017, motion for summary judgment based on the affirmative
defense provided by 42 U.S.C. ' 1997e(a).

(ECF No. 95).

Plaintiff’s motion to

enforce his subpoenas must be denied because this is not the district where
performance was required. See FED. R. CIV. P. 45(d)(3)(A); see also Card v. Principal
Life Ins. Co., No. 5:15-139, 2017 WL 2260695, at *2 (E.D. Ky. May 23, 2017).
Even assuming that plaintiff’s motion was appropriately before this Court, the
subpoenas would not be enforced. Rather than taking “reasonable steps to avoid
imposing undue burden or expense on the person subject to the subpoena” as required

4 On

March 30, 2017, plaintiff sent a letter to the individual to whom the
subpoena was directed and plaintiff conceded that “the manner in which the
subpoena was served was defective.” (ECF No. 100-1, PageID.911).
-24-

by Rule 45(d)(1), 5 plaintiff did exactly the opposite.

He did not narrow his

subpoenas to seek documents pertaining to exhaustion of administrative remedies on
the claims at issue in this lawsuit.
and all prisoners.”

Instead, he sought documents “pertaining to any

(ECF No. 96-2 at PageID.863). If plaintiff’s motion had been

properly framed for a decision by this Court, the Court would be imposing sanctions
against plaintiff pursuant to Rule 45(d)(1).
7. Plaintiff’s Rule 56(d) Motion
Plaintiff’s motion to enforce subpoenas discussed above concluded with a
request for “EXTENSION OF TIME TO FILE RESPONSE TO MDOC’S
DISPOSITIVE MOTION.”

(ECF No. 95 at PageID.852). Under the Court’s case

management order, plaintiff=s response to the MDOC defendants’ motion for
summary judgment was due on or before May 18, 2017. Plaintiff has not shown good
cause under Rule 6(b)(1)(A) of the Federal Rules of Civil Procedure for an extension
of the briefing deadline.
Plaintiff’s motion states that he should be granted an extension “based on the
reasons stated in the attached brief.”

(ECF No. 95).

All parties are strongly

discouraged from this reckless practice and they accept all the attendant risks.

Not

only does the practice fail to comply with Rule 7(b)(1)(B) of the Federal Rules of Civil

5It

is also noted that courts have recognized that the touchstone proportionality
requirement of Rule 26(b)(1) applies in this context. See In re ClassicStare Mare
Lease Litig., Nos. 5:07-cv-353, 5:06-cv-243, 2017 WL 27455, at *2 (E.D. Ky. Jan. 3,
2017).
-25-

Procedure6 and Rule 7.1(a) of the Local Civil Rules, the moving party risks having a
request for relief overlooked because he has buried it somewhere in a brief rather
than stating it in his motion.

Although plaintiff’s brief does not contain any

reference to Rule 56(d), he does ask for “additional time to complete discovery before
responding to the MDOC defendants= motion for summary judgment” (ECF No. 96 at
PageID.856) and he has filed an “affidavit” 7 (ECF No. 96-2 at PageID.871-73).
Thus, the pro se plaintiff=s motion is indulgently construed as a motion made 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

A motion is, by definition, a request for a court order that must: “(A) be in
writing unless made during a hearing or at trial; (B) state with particularity the
grounds for seeking the order; and (C) state the relief sought.” FED. R. CIV. P. 7(b)(1).
6

Plaintiff’s affidavit is clearly deficient. Rather than making unambiguous
statements under penalty of perjury, plaintiff has interjected limitations that his
statements are true and correct “to the best of [his] knowledge, information and
belief.” (ECF No. 96-2 at PageID.873).
7

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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
discovery deadline.

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
-27-

his request for reconsideration, without allowing for more discovery.” 677 F. App’x
at 1000.
Plaintiff=s argument that a decision on the MDOC defendants’ motion for
summary judgment should be delayed because he requires responses to his subpoenas
(ECF No. 96 at PageID.856-57) is not persuasive. One subpoena (ECF No. 96-2 at
PageID.867) was unrelated to the issue of exhaustion of administrative remedies.
The other subpoena, as previously indicated, failed to focus on the question of
exhaustion of administrative remedies on the claims that plaintiff is asserting in this
lawsuit. Many of plaintiff’s claims are based on events that occurred at RMI rather
than IBC.

Relatively few of the factual allegations in plaintiff=s complaint (ECF

No. 1) relate to the period at IBC that plaintiff claims he was on modified access to
the grievance process (ECF No. 96-2 at PageID.875).

Nothing prevented plaintiff

from responding to the MDOC defendants’ motion for summary judgment with an
affidavit or an unsworn declaration under penalty of perjury setting forth in detail
what he did to satisfy his obligations to exhaust the grievance process before filing
this lawsuit.
Plaintiff was dilatory rather than diligent in pursuing discovery related to
exhaustion of administrative remedies.

Initial disclosure requirements do not apply

to lawsuits brought by prisoners. See FED R. CIV. P. 26(a)(1)(B)(iv), (d)(1). The case
management order entered on December 30, 2016, reinforced that the period for
conducting discovery was limited.

Plaintiff is an experienced prisoner litigant.
-28-

The

MDOC defendants’ motion for summary judgment based on the affirmative defense
provided by 42 U.S.C. ' 1997e(a) was certainly not a surprise. Plaintiff had already
briefed the issue in 2016 in Case No. 1:16-cv-190.

Plaintiff’s request that the Court

delay a decision on the MDOC defendants’ motion for summary judgment based on
the affirmative defense provided 42 U.S.C. ' 1997e(a) will be denied.
8. Corizon Defendants’ Motion for Extension of Their Deadline for Filing a
Summary Judgment Motion
On May 19, 2017, the Corizon defendants filed a motion under Rule 16(b)(4)
seeking an extension of their deadline for filing a motion for summary judgment.
(ECF No. 103).

Plaintiff filed nothing in response to the motion.

defendants’ motion will be granted.

Upon review, the

The Court finds, however, that given the

procedural posture of this case, the proposed order (ECF No. 103-2) is inadequate and
it will be rejected.

The order accompanying this opinion will amend the Corizon

defendants’ deadline for filing a motion for summary judgment and establish a
briefing schedule.

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Conclusion
For the reasons set forth herein, the motion to stay discovery (ECF No. 71), the
motion to strike (ECF No. 77), the motion to extend time (ECF No. 80), and the motion
to enforce subpoenas and to extend time (ECF No. 95) will be denied. The Corizon
defendants’ motion to compel (ECF No. 66) will be granted and plaintiff will be
ordered to sign the release for the MDOC’s records. The other motions (ECF No. 61,
72, 90, 103) will be granted in part and denied in part as specified herein.

Date:

November 5, 2017

/s/ Phillip J. Green
PHILLIP J. GREEN
United States Magistrate Judge

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