Burley v. Rider, CASE NO. 2:17-cv-10110

• Decision Date: 08 August 2019
• Docket Number: CASE NO. 2:17-cv-10110
• Parties: EDWARD DONALD BURLEY, Plaintiff, v. RHONDA RIDER, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

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

CASE NO. 2:17-cv-10110

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

August 8, 2019

DISTRICT JUDGE GEORGE CARAM STEEH

MAGISTRATE JUDGE PATRICIA T. MORRIS

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

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. Case No. 17-10888, R. 24, PageID.164.) No other claims had been properly exhausted, the Court found. (Id., PageID.155, 164; W.D. Mich. Case 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. Case 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. Case 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. Case 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. Case 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 "adopt[] and incorporate[] the arguments advanced in his Brief in Support, Objections to R&R, Burley Declaration." (Id.) Defendant has responded and Plaintiff has replied. (R. 14, 20.)² The matter is now ready for resolution.

B. Law and Analysis

1. Standards for Reopening Interlocutory Orders

Plaintiff's motion asks the Court to revisit a prior interlocutory order in this case.Courts have long had power to grant this relief. "By the traditional rule of the common law a judgment remained within the control of the court of rendition, with power to alter it in form or substance, until the lapse of the term of court at which it was rendered." Robert Wyness Millar, Civil Procedure of the Trial Court in Historical Perspective, 385 (1952). That inherent authority remains today. See Mallory v. Eyrich, 922 F.2d 1273, 1282 (6th Cir. 1991) ("District courts have inherent power to reconsider interlocutory orders and reopen any part of a case before entry of a final judgment. . . . A district court may modify, or even rescind, such interlocutory orders.").

"[A]dditional support" for this power comes from Fed. R. Civ. P. 54(b). Rodriguez v. Tennessee Laborers Health & Welfare Fund, 89 F. App'x 949, 959 (6th Cir. 2004). That Rule states:

When an action presents more than one claim for relief—whether as a claim, counterclaim, crossclaim, or third-party claim—or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.

Fed. R. Civ. P. 54(b). Accordingly, "[d]istrict courts have authority both under common law and Rule 54(b) to reconsider interlocutory orders and to reopen any part of a case before entry of final judgment." Rodriguez, 89 F. App'x at 959; see also Dietz v. Bouldin, 136 S. Ct. 1885, 1892 (2016) (citing Rule 54(b) and noting that "the Court has recognizedthat a district court ordinarily has the power to modify or rescind its orders at any point prior to final judgment in a civil case").

The traditional "justification for reconsidering interlocutory orders" is that "there is (1) an intervening change of controlling law; (2) new evidence available; or (3) a need to correct a clear error or prevent manifest injustice." Rodriguez, 89 F. App'x at 959. One court defined "manifest injustice" in these circumstances as "'[a]n error in the trial court that is direct, obvious, and observable,' . . . 'apparent to the point of being indisputable.'" Ashraf v. Adventist Health Sys./Sun-belt, Inc., No. 2:17-cv-2839, 2018 WL 4431381, at *3 (W.D. Tenn. Sept. 17, 2018) (citations omitted). Some courts in this Circuit have held that "[m]otions to revise 'may not be used to relitigate old matters.'" Glass v. Northwest Airlines, Inc., 798 F. Supp. 2d 902, 907 (W.D. Tenn. 2011) (citation omitted); cf. Zdanok v. Glidden Co., Durkee Famous Foods Div., 327 F.2d 944, 953 (2d Cir. 1964) (Friendly, J.) (discussing the related "law of the case" doctrine and noting that "where litigants have once battled for the court's decision, they should neither be required, nor without good reason permitted, to battle for it again").

These basic principles apply when, as here, a different judge entered the interlocutory order at issue. See McMasters v. United States, 260 F.3d 814, 818 (7th Cir. 2001) ("[T]he law of the case doctrine, which provides that courts should refrain from reopening issues decided in earlier stages of the same litigation . . . applies when a case is transferred from one district court to another," but it does not apply if the transferee court determines that the prior decision is clearly wrong.); 18B Alan Wright & Arthur R. Miller, Federal Prac. & Proc.: Jurisdiction, § 4478.1 (2d ed.) ("The basic themes that apply tosame-judge reconsideration carry forward to situations in which one trial-court judge is asked to reconsider a ruling by another trial-court judge."); Propriety of federal district judge's overruling or reconsidering decision or order previously made in same case by...