United States District Court, W.D. Michigan, Southern Division
JAMES M. STEVENS, Plaintiff,
CRAIG HUTCHINSON, et al., Defendant.
OPINION AND ORDER
T. NEFF UNITED STATES DISTRICT JUDGE
isaprisoner civil rights action filed pursuantto 42 U.S.C.
§ 1983 concerning medical treatment of Plaintiffs
Hepatitis-C virus (HCV). The Michigan Department of
Corrections (MDOC) Defendants filed a hybrid motion to
dismiss and/or for summary judgment (ECF No. 117); and the
Corizon Health, Inc. ("Corizon") Defendants filed a
motion for summary judgment (ECF No. 132) and corrected
motion for summary judgment (ECF No. 133). The matter was
referred to the Magistrate Judge, who issued a Report and
Recommendation (R&R, ECF No. 140) recommending that the
MDOC Defendants' motion be granted in part and denied in
part, that the Corizon Defendants' corrected motion for
summary judgment be granted, and that the Corizon
Defendants' preceding motion for summary judgment (ECF
No. 132) be dismissed.
matter is presently before the Court on Plaintiffs objections
to the Report and Recommendation. 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.
This Court adopts the Magistrate Judge's Report and
Recommendation as the Opinion of this Court, with two
exceptions: (1) the Court corrects the typographical error
referencing "Rule 54(d)" instead of "Rule
56(d)" (ECF No. 140 at PageID.1949), and (2) the Corizon
Defendants' initial motion for summary judgment (ECF No.
132) will not be dismissed as recommended by the Magistrate
Judge, but will be considered corrected by the amended motion
for summary judgment (ECF No. 133).
presents eight objections to the Magistrate Judge's
Report and Recommendation. This Court will address each in
Plaintiff argues that the Magistrate Judge erred in stating
that Plaintiff filed a 54(d) request rather than a Rule 56(d)
request for discovery (PI. Obj., ECF No. 146 at PageID.2008;
R&R, ECF No. 140 at PageID.1949). Plaintiff has
accurately identified this typographical error on the Report
and Recommendation, which references Plaintiffs requests for
discovery through Rule 54(d), not Rule 56(d). Therefore, the
Report and Recommendation references to Rule 54(d) are
considered corrected to reference Rule 56(d).
also objects to the Magistrate Judge's recommendation to
deny Plaintiffs Rule 56(d) motion, as "clearly erroneous
and contrary to law" (ECF No. 146 at PageID.2008, 2015).
Rule 56(d) provides that "[i]f a nonmovant shows by
affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its opposition, the
court may: (1) defer considering the motion or deny it; (2)
allow time to obtain affidavits or declarations or to take
discovery; or (3) issue any other appropriate order."
Plaintiff asserts that he did not receive the discovery he
requested to support his opposition to the instant motions
(see ECF Nos. 32, 33, 34) due to a stay the Magistrate Judge
granted the MDOC Defendants pending their motion to dismiss
(ECF No. 35) and because the Corizon Defendants allegedly
"totally evaded practically all requests" (ECF No.
146 at PageID.2013). However, the Magistrate Judge properly
denied additional discovery both because none of the
discovery Plaintiff claimed to need was directed to the issue
of exhaustion or the pleadings and relief at issue in MDOC
Defendants' motion, and because the Magistrate Judge was
unpersuaded that Plaintiff required additional discovery from
the Corizon Defendants beyond the voluminous medical records
he already received (ECF No. 140 at PagelD. 1949-50).
Plaintiff fails to demonstrate that there are essential facts
he is unable to present to support his opposition to either
dispositive motion, thereby falling short of the standard set
out in Rule 56(d). Plaintiffs argument fails to demonstrate
any factual or legal error in the Magistrate Judge's
analysis or conclusion.
Plaintiff argues that the Magistrate Judge erred by relying
extensively on exhibits that should have been disregarded or
stricken from consideration (ECF No. 146 at PageID.2016-18).
On July 11, 2017, the Corizon Defendants filed their first
motion for summary judgment along with Exhibits A through E
(ECF Nos. 132, 132-1 through 132-5). These exhibits included
certifications by two Corizon Defendants, 178 pages of
Plaintiffs medical records, and two supporting cases. On that
same day, the Corizon Defendants filed a corrected motion for
summary judgment without the exhibits (ECF No. 133). The only
difference between the Corizon Defendants' first and
corrected motion for summary judgment was the amended attempt
for concurrence (ECF No. 140 at PagelD. 1948). Plaintiff
contends that because the exhibits were not resubmitted with
the corrected motion, they should not have been considered or
relied upon by the Magistrate Judge. Drawing attention to the
Magistrate Judge's admonition that "the Court will
not permit any party to incorporate earlier-submitted
evidence, pleadings, motions, or briefs by reference"
(ECF No. Ill. at PageID.984), Plaintiff argues that the
Magistrate Judge erred by extensively and almost exclusively
using material not re-submitted by Corizon Defendants
(PI.Obj., ECF No. 146 at PageID.2016-17). However, Plaintiff
quoted only part of the directive the Magistrate Judge issued
on March 28, 2017. The full directive states:
Given the fragmented nature of this case and the significant
difficulty the Court has experienced in getting it into a
posture ready for decision, the Court will not permit any
party to incorporate earlier-submitted evidence, pleadings,
motions, or briefs by reference. Orderly presentation by the
parties is essential and it should allow the Court to move
forward with significant dispatch towards resolution of this
long-pending lawsuit (ECF No. 111 at PageID.984 (emphasis
corrected version of the Corizon Defendants' motion for
summary judgment referencing the earlier-filed exhibits posed
no threat of fragmentation or confusion. Plaintiff cites no
persuasive argument or authority to preclude the
consideration of Exhibits A-E (ECF Nos. 132-1 through 132-5).
This objection is denied.
Plaintiff asserts that the Magistrate Judge erred in his
Statement of Facts in five respects (PI. Obj., ECF No. 146 at
PageID.2018-21). While none of these issues alters the ruling
in this case, the Court will address each.
asserts that the Magistrate Judge erred in stating that his
HC V treatment followed the "latest national treatment
guidelines;" however, the case law Plaintiff provides to
support his contention actually affirms that the course of
treatment he received met those national standards (ECF No.
146atPageID.2018-19;R&R, ECFNo. 140 at PageID.1952).
Plaintiff cites case law in which the court noted, "[o]n
July 6, 2016, these organizations updated the standard care to
recommend treating all persons with chronic HCV with DAA
drugs." Postawko v. Mo. Dep't of Corr.,
2:16-cv-04219, 2017 WL 1968317 at *2 (W.D. Mo. May 11, 2017).
Plaintiff asserts that this is a far cry from the treatment
Corizon claims Plaintiff received. However, on March 7, 2016,
almost four months before this standard of care was updated,
Plaintiff began the successful Harvoni (DAA drug) and
ribavirin treatment protocol (ECF No. 132-1 at PagelD. 1282).
Plaintiff has not shown that the Magistrate Judge's
statement that "the MDOC follows the latest national
treatment guidelines" was in error (see ECF No.
140 at PagelD. 1952).
also asserts that the Magistrate Judge erred by misleading
this Court to conclude only two HCV treatment protocols
existed, not three (ECF No. 146 at PageID.2019). This Court
has reviewed this case de novo, including Dr.
Hutchinson's testimony and Plaintiffs explanation of the
treatment options, and does not find the Magistrate
Judge's summary ...