United States District Court, W.D. Michigan, Southern Division
ELIJAH M. FORD, Plaintiff,
MICHAEL C. KENNERLY, et al., Defendants.
OPINION AND ORDER
T. NEFF UNITED STATES DISTRICT JUDGE.
filed this prisoner civil rights action, alleging, in
pertinent part, deliberate indifference to his medical needs
under 42 U.S.C. § 1983 against Defendants Wilson, Day,
Kennerly, Czop, Gerlach, Behler, LaBarre, Jastifer, Bounting,
Kemp, Siglar, Ibarra, Squier, Orlebeke, Kangas and Corizon
Healthcare. Defendants Corizon Health Care, Czop, Gerlach,
Kennerly, Orlebeke and Squier filed a motion to dismiss
Plaintiff's deliberate indifference claims on the ground
that Plaintiff has refused to comply with an October 4, 2016
Order of the Court compelling Plaintiff to timely execute
releases necessary to permit Defendants access to his medical
records (Dkt 69). Defendants Bounting, Day, LeBarre, Siglar
and Wilson filed a Concurrence and Joinder in the motion (Dkt
70). Plaintiff did not respond to the motion. The matter was
referred to the Magistrate Judge, who issued a Report and
Recommendation (R&R, Dkt 81) on January 5, 2017,
recommending that this Court grant the motion to dismiss the
deliberate indifference claims pursuant to Fed. R. Civ. Pro.
37(b)(2)(A)(v). The matter is presently before the Court
on Plaintiff's objections to the Report and
Recommendation (Dkt 84, as supplemented by Dkt 86).
Defendants filed a response to the objections (Dkt 85). In
accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P.
72(b)(3), the Court has performed de novo consideration of
those portions of the Report and Recommendation to which
objections have been made. The Court denies the objections
and issues this Opinion and Order.
objections, Plaintiff asserts that he “fully
cooperated” with Defendants' request and that the
“Health Information Manager was left with the final
duty to send to the Defendants and their attorneys a copy of
Plaintiff Ford's medical record” (Pl. Obj., Dkt 84
at PageID.1271-1272). Plaintiff opines that he should not be
held accountable for the “inexperienced actions of the
Health Information Manager” (id. at
PageID.1273). Conversely, in his supplement to his
objections, Plaintiff attaches an MDOC form from the Bureau
of Health Care Services, indicating that “Medical
Records mailed on 12/21/16” (Dkt 86 at
objections are properly denied.
Magistrate Judge identified and weighed the relevant factors
for considering whether to dismiss a claim under Rule 37 for
failure to obey an order or provide discovery. Specifically,
as delineated in the Report and Recommendation, the
Magistrate Judge determined that Plaintiff's refusal to
follow the Court's October 4, 2016 Order is
“willful and prejudices Defendants' ability to
defend Plaintiff's claims” (R&R, Dkt 81 at
PageID.1259). The Magistrate Judge also pointed out that
Plaintiff was expressly warned that failure to comply with
the Court's Order would result in a recommendation that
his deliberate indifference claims be dismissed
(id.; 10/4/16 Order, Dkt 60 at PageID.1148
(“In the event Plaintiff fails to timely comply with
this Order, the undersigned will recommend that
Plaintiff's claims against the aforementioned Defendants
be dismissed for failure to comply with the Court's
Orders.”) [emphasis in original]).
argument fails to demonstrate any factual or legal error in
the Magistrate Judge's analysis or recommendation. As
Defendants point out (Dkt 85 at PageID.1278), it is incorrect
for Plaintiff to assert that he “fully
cooperated” with this Court's October 4, 2016 Order
requiring him to “execute the releases necessary to
permit access to his medical records no later than October
31, 2016” after conceding that he “changed the
dates” and did so during an unspecified time in
November. Defendants opine that they have devoted an
unnecessary amount of time to attempting to convince
Plaintiff to allow discovery (id. at PageID.1279).
Indeed, in their January 27, 2017 response to Plaintiff's
objections, Defendants assert that Plaintiff has still not
provided a signed release that complies with Defendants'
original request (id. at PageID.1278-1279).
this Court adopts the Magistrate Judge's Report and
Recommendation as the Opinion of this Court. Because this
action was filed in forma pauperis, this Court
certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an
appeal of this decision would not be taken in good faith.
See McGore v. Wrigglesworth, 114 F.3d 601, 610 (6th
Cir. 1997), overruled on other grounds by Jones v.
Bock, 549 U.S. 199, 206, 211-12 (2007). Therefore:
IS HEREBY ORDERED that the Objections (Dkt 84) are
DENIED and the Report and Recommendation of the Magistrate
Judge (Dkt 81) is APPROVED and ADOPTED as the Opinion of the
IS FURTHER ORDERED that Defendants' Motion to
Dismiss (Dkts 69 & 70) is GRANTED, and Plaintiff's
remaining deliberate indifference claims are DISMISSED.
IS FURTHER ORDERED that this Court certifies
pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of
this decision would not be taken in good faith.
The Magistrate Judge noted that service
had yet to be effected on Defendants Behler, Jastifer, Kemp,
Ibarra and Kangas (R&R, Dkt 81 at ...