Kitchen v. Corizon Health Inc.

MICHAEL ANDREW KITCHEN, # 189265, Plaintiff, v. CORIZON HEALTH INC., et al., Defendants.

Case No. 1:16-cv-1068

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

November 5, 2017

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 (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).

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.

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. Defendants' attorney did not require leave of Court to make an appearance. 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 well-illustrated 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 indetail 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. (ECF No. 66). 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. (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);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...