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Lashuay v. Delilne

United States District Court, E.D. Michigan, Northern Division

January 8, 2018

DAVID LASHUAY, Plaintiff,
v.
AIMEE DELILNE, et al, Defendants.

         ORDER DENYING WITHOUT PREJUDICE MOTION FOR EXPEDITED DISCOVERY, GRANTING MOTION TO STRIKE SECOND AMENDED COMPLAINT, STRIKING SECOND AMENDED COMPLAINT, AND SETTING PLAINTIFF'S MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT FOR HEARING

          THOMAS L. LUDINGTON UNITED STATES DISTRICT JUDGE.

         On November 1, 2017, Plaintiff David Lashuay filed a complaint against a variety of medical staff and medical providers alleging that they were deliberately indifferent to his medical needs while he was incarcerated by the Michigan Department of Corrections. ECF No. 1. On November 10, 2017, and before any Defendants were served, Lashuay filed an amended complaint which made minor factual clarifications and corrected several clerical errors. ECF No. 4. On the same day, Lashuay filed two ex parte motions for leave to commence limited discovery immediately.[1] ECF Nos. 5, 6. In the request, Lashuay explains that his prefiling investigation did not reveal the identity of two potential Defendants (named as John Does in the complaint). Lashuay seeks leave to take a deposition and issues subpoenas to identify the proper parties.

         Over the next several weeks, most named Defendants were served. On December 8, 2017, the served Defendants filed a motion to dismiss the claims against them. ECF No. 26. That motion is currently set for hearing on February 28, 2018. ECF No. 32. On December 27, 2017, Plaintiff filed a second amended complaint. ECF No. 35. That second amended complaint does not name new Defendants, but does amend the claims being advanced. In its reply brief in support of its motion to dismiss, Defendants noted that the second amended complaint had been improperly filed because Lashuay had already amended once as by right. On January 3, 2018, Lashuay filed a motion for leave to file its second amended complaint. ECF No. 39. The next day, the served Defendants filed a motion to strike the previously filed second amended complaint. ECF No. 40.

         In his motion for leave to file a second amended complaint, Lashuay acknowledges that Federal Rule of Civil Procedure 15(a)(1) only permits one amendment as of right. By making that admission (and, indeed, filing the motion for leave to file a second amended complaint), Lashuay has conceded that the second amended complaint was improperly filed. The second amended complaint, ECF No. 35, will be stricken, and Lashuay's motion for leave to file a second amended complaint will be scheduled for hearing.[2] If Lashuay's motion is granted, he will be directed to refile the second amended complaint. Additionally, and for the reasons provided below, Lashuay's motion for expedited discovery will be denied.

         I. A.

         Lashuay's amended complaint alleges that, on July 9, 2014, Lashuay suffered third degree burns on 49% of his body because of an explosion in Otsego County, Michigan. Am. Compl. at 10, ECF No. 4. Lashuay was treated at the Hurley Hospital Burn Unit in Flint Michigan for many weeks. Id. On October 16, 2014, Lashuay was released from Hurley Hospital and into the custody of the Michigan Department of Corrections. Id. He remained in MDOC custody until September 1, 2016, when he was released on parole. Id.

         Lashuay's claims arise out of the MDOC's alleged deliberate indifference to his medical needs upon his release from Hurley Hospital. He contends that, when released into MDOC custody, “Hurley hospital recommended additional skin grafts and surgery to release contractures caused by the burns, with a re-visit at their Burn Unit in 2 weeks to evaluate for planned surgeries.” Id. at 10-11.

         According to Lashuay, MDOC medical personnel “assured the Hurley Hospital medical staff that all of Plaintiff's medical needs would be met, ” but failed to fulfill that promise. Id. at 11. Specifically, Lashuay contends that, “[u]pon arrival at [MDOC's Dwayne Waters Hospital (DWH)], Plaintiff had open wounds requiring daily dressing changes and application of medications.” Id. Despite his condition, he was “placed in isolation for 30 days.” Id. He alleges that, during his incarceration, he received “minimal or no wound care.” Id. Rather, Lashuay was “required to attend to his daily wound-care needs, dressing changes and medication application with no or minimal assistance from healthcare staff.” Id. He alleges that he was “frequently not provided with adequate supplies to change his wound dressing and had to resort to tearing up garbage bags to cover some of the open wounds.” Id. at 11-12.

         Lashuay alleges that “[t]here are numerous notations in the RN's and NP and other defendant medical provider records indicating that Plaintiff was doing his own wound care and asking for help ‘if needed' however, [sic] there is only 1-2 records of any medical provider actually providing any assistance with wound care.” Id. at 12. The Defendants “merely documented the existing oozing wounds, new open wounds, failed skin grafts, and reopened wounds”; they did not take “any action to provide wound care, continuing to leave it to Plaintiff with inadequate supplies.” Id.

         Lashuay contends that, as a result of Defendants' “failure to provide medically necessary wound care and supplies, ” he suffered medical complications “most or all of which would not have occurred with professional wound care.” Id. He further alleges that, as a result of his “continued and new wounds, ” necessary surgery and physical therapy was delayed and denied. Id. Specifically, Lashuay alleges that, on or around January 2015, the Hurley Hospital recommended that he undergo surgery. Id. at 14. Despite that recommendation, “[i]n January 2015, and continuing thereafter, Defendants denied Hurley's recommendation for surgeries.” Id.

         Lashuay now contends that he is “severely disabled in the use of his right hand and his range of motion in his neck and other body parts is severely restricted and he suffered extreme pain throughout his” incarceration “and continuing to the present.” Id. at 12-13. He alleges that the “Hurley Burn Clinic professionals” have advised him that “it is too late for there to be any reasonable chance that the surgery would help.” Id. at 13.

         B.

         Because their identities and roles are relevant to Lashuay's request for expedited discovery, the Defendants named in the amended complaint will be briefly identified. Aimee Delilne “was the first RN to see Plaintiff upon his arrival at DWH . . . and provided nursing care per records throughout his stay there.” Id. at 2-3. FNU Trout “was the ‘wound care nurse' at DWH who was notified of Plaintiff's arrival and reportedly evaluated Plaintiff upon arrival for necessary wound care services.” Id. at 3. FNU Wetzel “was from physical therapy services at DWH and reportedly evaluated Plaintiff for physical therapy needs and prescribed or oversaw Plaintiff's physical therapy services while in custody of MDOC.” Id. Gary Duncan “was one of the 4 providers involved in Plaintiff's transfer and intake into DWH and provided or supervised care on various occasions thereafter.” Id. at 3-4. Mollie Klee, Lorraine Vanbergen, ...


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