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Burley v. Rider

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

August 8, 2019

EDWARD DONALD BURLEY, Plaintiff,
v.
RHONDA RIDER, Defendant.

          GEORGE CARAM STEEH DISTRICT JUDGE

          REPORT AND RECOMMENDATION ON PLAINTIFF'S MOTION TO REOPEN CLAIMS (R. 11)

          PATRICIA T. MORRIS UNITED STATES MAGISTRATE JUDGE.

         I. RECOMMENDATION

         This prisoner civil rights case returns after a sojourn in the Western District of Michigan. While there, the court pared down the case to a single claim against Defendant Rhonda Rider, dismissing all other claims. Plaintiff's present motion seeks to reopen many of the claims that had been put to rest. (R. 11.) Because he has failed to demonstrate any error in the earlier adjudication of his now dismissed claims, I suggest that his motion fails and RECOMMEND that it be DENIED.

         II. REPORT

         A. Facts and Procedural History

         This case has ping-ponged between the Eastern and Western Districts of Michigan. It began here on January 12, 2017, when Plaintiff sued various Michigan Department of Corrections (MDOC) employees alleging a host of statutory, constitutional, and other claims. (R. 1.)[1] Soon after, the case was transferred to the Western District. (R. 4.) There, Magistrate Judge Ray Kent issued a Report, which was ultimately adopted, recommending that all the claims but one be dismissed: an Eighth Amendment claim that “Rider was deliberately indifferent to plaintiff's serious medical needs by providing inaccurate medical records with respect to plaintiff's claim for a health-related accommodation.” (W.D. Mich. No. 17-10888, R. 24, PageID.164.) No. other claims had been properly exhausted, the Court found. (Id., PageID.155, 164; W.D. Mich. No. 17-10888, R. 28, PageID.180.) The only grievance Plaintiff filed-“Grievance 147”-failed to exhaust any claims against the named defendants because it did not name any of them. (W.D. Mich. No. 17-10888, R. 24, PageID.161.) The Magistrate Judge further noted that no claims related to Grievance 147 could be lodged against Defendant Rider because her only role was investigating that grievance. (Id.)

         During the investigation of Grievance 147, Defendant Rider sent a note to Defendant Cline, the grievance coordinator, stating:

On 2/4/14 the grievant was seen by the provider at another facility. The grievant had been noted using the regular phone with the receiver to his ear at a normal phone receiver volume. This would indicate that he did not demonstrate need for special hearing devices. The grievant was offered to undergo an evoked auditory/brainstem response test on 1/2/12 which he declined. This test would have confirmed his reported hearing deficit. The grievant [sic] accommodations were discontinued during the visit on 2/4/14.

(Id. (citation omitted).) That note was at the heart of the surviving constitutional claim against Rider. Like the others, this claim was not exhausted; it withstood dismissal only because Plaintiff produced a grievance (containing the constitutional issue) he claimed to have been prevented from filing. That grievance stated:

This complaint is against Rhonda Rider RN13 where she released medical information from my medical files without my approval or authorization. She improperly released confidential information from my medical files to a third party (S. Cline) in violation of PD 03.04.100, Health Services, eff. 2/01/15. Policy states that “All health care interviews, examinations, procedures, and other encounters shall be conducted in a setting that provides for the prisoner's privacy, consistent with custody and security controls.” See § K. Ms. Rider violated the Federal HIPAA laws where she released sensitive medical information relating to my hearing impairment. The information she released was inaccurate in that she reported “On 2/4/14 the grievant was seen by the provider at another facility. The grievant had been noted using the regular phone with the receiver to his ear at a normal phone receiver volume.” This is factually inaccurate and she did nothing to assure the accuracy of the misreported information-she has demonstrated deliberate indifference towards my serious medical condition. She offered to release further information to S. Cline from my medical files without my expressed or implied consent, even where I never was asked to sign a “Patient's Authorization for Disclosure of Health Information, ” form CHJ-121. I ask that she be counseled not to release any further information from my files without my expressed authorization, and disciplined accord [sic] to policy.

(W.D. Mich. No. 17-10888, R. 19, PageID.139 (emphasis removed).)

         The Magistrate Judge found a genuine issue of material fact as to whether Plaintiff was prevented from submitting the grievance. (W.D. Mich. No. 17-10888, R. 24, PageID.162 (citing Ross v. Blake, 136 S.Ct. 180, 1858-59 (2016).) Regarding the claim under the Health Insurance Portability and Accountability Act (HIPAA), the Magistrate Judge determined that it failed because HIPAA did not confer private rights of action. (Id., PageID.163.) Plaintiff's objections to the Report were overruled and his subsequent motion for reconsideration was denied. (W.D. Mich. No. 17-10888, R. 28, 66.)

         After the case returned to this District, Plaintiff filed the present motion to reopen the dismissed claims under Fed.R.Civ.P. 54(b). (R. 11.) The motion contends that the previous Report failed to address all of his claims, looking only at deliberate indifference and HIPAA. (Id., PageID.55.) The motion also purports to ÔÇťadopt[] and incorporate[] the arguments advanced in his Brief in Support, Objections to R&R, Burley ...


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