KELLY v. CORIZON, LLC

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

MCKINLEY KELLY, ) ) Plaintiff, ) ) v. ) No. 1:21-cv-01404-JMS-TAB ) DR. MICHAEL MITCHEFF, et al., ) ) Defendants. )

ORDER Plaintiff McKinley Kelly who is in custody at Wabash Valley Correctional Facility, brought this action against past and present medical providers alleging that they were indifferent to his medical condition, gynecomastia—a benign proliferation of glandular tissue in the male breast. The Court now addresses several pending motions in this action. I. Mr. Kelly's Motion to Dismiss Defendant and Motion to Amend Complaint Mr. Kelly's motion to dismiss his claims against Dr. Jackie West-Denning, dkt. [65], is granted. All claims against Dr. West-Denning are dismissed with prejudice. The clerk is directed to terminate Dr. Jackie West-Denning as a defendant on the docket. No partial final judgment will issue at this time. Mr. Kelly's motion for leave to file an amended complaint, dkt. [69], is granted. The clerk is directed to re-docket the proposed amended complaint, dkt. [69-1], as the Second Amended Complaint in this action. The second amended complaint is now subject to screening. See 28 U.S.C. § 1915A(a). In the second amended complaint, Mr. Kelly restates the allegations from his first amended complaint and adds additional allegations against defendants Dr. Samuel Byrd and Centurion of Indiana, LLC, based on events from September 2021 through September 2022. Mr. Kelly's Eighth Amendment deliberate indifference claims against Dr. Mitcheff, Dr. Byrd, and Dr. Rajoli shall proceed as presented in the second amended complaint. Likewise,

Mr. Kelly's Eighth Amendment claims against Wexford of Indiana, LLC, and Centurion of Indiana, LLC, under the theory outlined in Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690−91 (1978), shall proceed as presented in the second amended complaint. The defendants shall have 14 days following the issuance of this Order to answer the second amended complaint. The motion for summary judgment filed by defendants Centurion and Dr. Rajoli, dkt. [77], is denied without prejudice.1 II. Defendants' Motion to Stay Dispositive Motion Deadline Defendants Samuel Byrd, Michael Michael Mitcheff, Naveen Rajoli, and Wexford of Indiana, LLC's motion to stay the dispositive motion deadline, dkt. [75], is granted. The Court will reset the dispositive motion deadline by separate order.

III. Mr. Kelly's Motion for Assistance with Recruiting Counsel Mr. Kelly's motion for assistance with recruiting counsel, dkt. [81], is granted to the extent that the Court will attempt to recruit counsel to represent Mr. Kelly at settlement proceedings. The motion for leave to proceed in forma pauperis, dkt. [82], is granted.

1 If these defendants later file a renewed motion for summary judgment, they should take care to limit their Statement of Material Facts Not in Dispute to material facts. See S.D. Ind. L.R. 56-1(a). The crimes for which Mr. Kelly was convicted and sentenced to prison, unless they somehow relate to his claims in this action, do not qualify as material. IV. Summary Mr. Kelly's motion to dismiss his claims against Dr. Jackie West-Denning, dkt. [65], is granted. All claims against Dr. West-Denning are dismissed with prejudice. The clerk is directed to terminate Dr. Jackie West-Denning as a defendant on the docket. Mr. Kelly's motion for leave to file an amended complaint, dkt. [69], is granted. The clerk is directed to re-docket the proposed amended complaint, dkt. [69-1], as the Second Amended Complaint in this action. The defendants shall have 14 days following the issuance of this Order to answer the second amended complaint. The motion for summary judgment filed by defendants Centurion and Dr. Rajoli, dkt. [77], is denied without prejudice. Defendants Samuel Byrd, Michael Mitcheff, Naveen Rajoli, and Wexford of Indiana, LLC's motion to stay the dispositive motion deadline, dkt. [75], is granted. Mr. Kelly's motion for assistance with recruiting counsel, dkt. [81], is granted to the extent that the Court will attempt to recruit counsel to represent Mr. Kelly at settlement proceedings. His motion for leave to proceed in forma pauperis, dkt. [82], is denied as unnecessary. IT IS SO ORDERED. Date: 11/14/2022

(Hon. Jane a Judge United States District Court Southern District of Indiana

Distribution:

MCKINLEY KELLY 973030 WABASH VALLEY - CF WABASH VALLEY CORRECTIONAL FACILITY - Inmate Mail/Parcels CARLISLE, IN 47838 Electronic Service Participant – Court Only

Douglass R. Bitner Stoll Keenon Ogden PLLC doug.bitner@skofirm.com

Jeb Adam Crandall BLEEKE DILLON CRANDALL ATTORNEYS jeb@bleekedilloncrandall.com

Christopher Andrew Farrington BLEEKE DILLON CRANDALL ATTORNEYS drew@bleekedilloncrandall.com

Anthony Leo Greco agreco@zcklaw.com

Roger K. Kanne ZEIGLER COHEN & KOCH rkanne@zcklaw.com