United States District Court, E.D. Michigan, Southern Division
MYRON C. GLENN, Plaintiff,
CORIZON HEALTHCARE, INC., DR. HARESH B. PANDYA, M.D., Defendants.
ORDER ACCEPTING MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION [DOC. 67] AND GRANTING DEFENDANT CORIZON
HEALTH, INC.'S MOTION FOR SUMMARY JUDGMENT [DOC.
CARAM STEEH UNITED STATES DISTRICT JUDGE.
Myron C. Glenn, an inmate who wears an orthopedic brace due
to a childhood injury, filed his lawsuit against defendants
Corizon Health, Inc. (“Corizon”) and Dr. Haresh
B. Pandya. Plaintiff alleges that defendants were
deliberately indifferent to his serious medical needs by
delaying his access to an orthotic boot that would
accommodate his ankle foot brace. Corizon filed a motion for
summary judgment which was referred to Magistrate Judge Patti
who issued a report and recommendation on January 18, 2019.
(Doc. 67). Plaintiff filed objections to the report and
recommendation which are presently before the court.
Michigan Department of Corrections issued plaintiff an ankle
foot orthotic brace and orthopedic boots to accommodate the
brace in early 1998. The boots became worn out due to normal
wear in tear in 2011 or 2012 and plaintiff made repeated
requests for a new pair of boots or shoes. Plaintiff alleges
he suffered from pain, rashes, infections and sores due to
rubbing from ill-fitting or inappropriate footwear. After two
years of requests by plaintiff, numerous medical
appointments, alternative treatment plans, and the issuance
of shoes that did not fit over the brace, plaintiff
ultimately received acceptable shoes on February 13, 2014.
However, by that time plaintiff suffered complications due to
infection and was hospitalized for two months to receive oral
antibiotics. Despite treatment, plaintiff has been unable to
grow healthy tissue, is prone to tissue infections, and
alleges irreparable damage has been done. In addition,
plaintiff began experiencing back pain and sciatica as a
result of overcompensating for his foot pain by putting more
strain on his back.
Judge Patti's report and recommendation concludes that
plaintiff's claims are not time-barred but that there is
“nothing in the record that would permit a reasonable
juror to conclude th[at] Corizon has a policy or custom of
indifference so ‘widespread, permanent and settled as
to have the force of law' that led to Plaintiff's
claimed injury, and Corizon is entitled to summary
judgment.” Plaintiff filed timely objections to the
report and recommendation. Each objection is based on the
premise that there is an issue of fact that the individual
Corizon personnel making the decisions in his case were
policymakers with final decision-making authority. Plaintiff
argues that the actions of these individuals amounted to
“a pervasive custom or practice” that is
“attributable” to Corizon for purposes of
establishing liability under § 1983 and Monell.
establish a Monell violation based on acts of an
agent, plaintiff bears the burden of demonstrating that the
agent who made the decision that allegedly violated his
rights is an official with final, unreviewable
decision-making authority who deliberately chose an
unconstitutional course of action from among various
alternatives. Feliciano v. City of Cleveland, 988
F.2d 649, 655 (6th Cir. 1993). “Mere authority to
exercise discretion while performing particular functions
does not make a municipal employee a final policymaker unless
the official's decisions are final and unreviewable and
are not constrained by the official policies of superior
officials.” Feliciano v. City of Cleveland,
988 F.2d 649, 655 (6th Cir. 1993) (citation omitted).
objections, plaintiff states that four Corizon personnel were
policymakers with final decision-making authority: (1) Dr.
Squier, a Corizon utilization management physician; (2) Dr.
Orlebeke, Corizon's former State Medical Director for the
MDOC contract; (3) Dr. Bergman, a Corizon Regional Medical
Director; and (4) Dr. Papendick, a Corizon utilization
management physician. While plaintiff identified these four
individuals in his response brief to Corizon's motion for
summary judgment, he did not argue that they were
policymakers with final decision-making authority. Nor is
there any evidence in the record regarding the duties and
limitations on authority of these four individuals. In fact,
the MDOC-Corizon Appeal Process provides that the MDOC Chief
Medical Officer has final authority on all Medical Service
Advisory Committee decisions.
premise does not hold up, so each of his objections to the
report and recommendation fails to establish that Corizon is
subject to liability under Monell for a custom or
practice attributable to them. For the reasons set forth
above, plaintiff's objections are overruled. The court
hereby accepts the magistrate judge's report and
recommendation granting defendant's motion for summary
judgment. Now, therefore, IT IS HEREBY ORDERED that the
magistrate judge's report and recommendation is ACCEPTED
and plaintiff's objections to the report and
recommendation are OVERRULED.
HEREBY FURTHER ORDERED that defendant's motion for
summary judgment is GRANTED and defendant ...