Temujin Kensu v. Corizon, Inc.

• Court: Court of Appeals for the Sixth Circuit
• Decided: February 7, 2023
• Docket: 22-1493
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 23a0075n.06

No. 22-1493

UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT Feb 07, 2023 DEBORAH S. HUNT, Clerk ) TEMUJIN KENSU, ) Plaintiff-Appellant, ) ON APPEAL FROM THE ) v. UNITED STATES DISTRICT ) COURT FOR THE EASTERN ) CORIZON INC., et al., DISTRICT OF MICHIGAN ) Defendants-Appellees. ) OPINION ) )

Before: SILER, BATCHELDER, and KETHLEDGE, Circuit Judges.

ALICE M. BATCHELDER, Circuit Judge. Plaintiff-Appellant Temujin Kensu appeals

the district court’s denial of his Rule 60(b)(1) motion for relief from judgment. Kensu argues that

his attorney’s sudden medical issues suffice to show excusable neglect for his failing to file a

timely response to the defendants’ motion for summary judgment. For the following reasons, we

AFFIRM.

I. Background and Procedural History

This case was originally a class action on behalf of prisoners housed within the Michigan

Department of Corrections, but Kensu dismissed the class claims and kept his individual Eighth

Amendment claim. Kensu claims that the defendants unreasonably denied him access to medically

necessary treatment and were deliberately indifferent to his serious medical needs. He alleges that

their unconstitutional practices, policies, and customs are meant to maximize profit at the expense

of prisoners’ health. The defendants moved for summary judgment on July 30, 2021. No. 22-1493, Kensu v. Corizon Inc., et al.

Around that same time, Kensu’s counsel suddenly lost vision in his right eye, which led to

a brief hospitalization and several doctor visits locally and in Iowa. Because his counsel is the

only attorney at his firm, his staff filed several motions for emergency continuance for him in other

cases. However, on August 16, 2021, he realized he had not filed for a continuance in this case—

the same week the response to the motion for summary judgment was due. Despite his intent to

file the response in opposition, because he was in Iowa for medical appointments, he missed the

August 20, 2021, deadline. The district court granted the Appellees’ motion for summary

judgment on October 18, 2021.

Four days after the district court granted summary judgment, Kensu filed a Rule 60(b)(1)

motion for relief from judgment. The district court denied the motion. The court concluded that

the failure to file a response was not due to excusable neglect because counsel had ample time

prior to the deadline to notify the court, ask for an emergency continuance, or seek leave to file a

late response, but he did not, despite doing so in several other cases. The court determined that

counsel’s “accidental neglect,” forgetfulness, or carelessness do not constitute excusable neglect.

The court also held that, even if it found excusable neglect, Kensu did not have a meritorious

underlying claim because he did not show a causal connection between the prison policy and his

alleged injury. Kensu timely appealed the denial of his Rule 60(b)(1) motion.

II. Legal Standard

This court reviews the district court’s denial of a Rule 60(b) motion for relief from

judgment for an abuse of discretion. Yeschick v. Mineta, 675 F.3d 622, 628 (6th Cir. 2012). “An

abuse of discretion exists when a court commits a clear error of judgment, such as applying the

incorrect legal standard, misapplying the correct legal standard, or relying upon clearly erroneous

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findings of fact.” Id. The “public policy favoring finality of judgments and termination of

litigation” disfavors granting relief under Rule 60(b). Id. (citation omitted).

Rule 60(b) allows relief from a final judgment for several reasons, including “mistake,

inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1). To determine if Rule

60(b)(1) relief is appropriate, the court considers: “(1) culpability—that is, whether the neglect

was excusable; (2) any prejudice to the opposing party; and (3) whether the party holds a

meritorious underlying claim or defense.” Yeschick, 675 F.3d at 628 (citation omitted). The court

must find a lack of culpability before examining the other two factors. Id. at 628-29.

III. Discussion

Whether counsel here was culpable—that is, whether his conduct amounted to excusable

neglect—presents an unusually close question. Because Kensu cannot obtain the relief he seeks

unless he can present evidence that he has a meritorious underlying claim—even if the neglect

were held to be excusable—we will review the district court’s conclusion that he did not.

When a plaintiff alleges that a constitutional violation arises from the execution of a policy

or custom, the plaintiff must (1) identify the policy, (2) connect the policy to the entity, and

(3) show that the particular injury was incurred because of the execution of that policy. Brawner

v. Scott Cnty., Tenn., 14 F.4th 585, 598 (6th Cir. 2021). To show that such a policy or custom

exists, the plaintiff may prove “(1) the existence of an illegal official policy or legislative

enactment; (2) that an official with final decision making authority ratified illegal actions; (3) the

existence of a policy of inadequate training or supervision; or (4) the existence of a custom of

tolerance or acquiescence of federal rights violations.” Burgess v. Fischer, 735 F.3d 462, 478 (6th

Cir. 2013). Liability rests “on a direct causal connection between the policies or customs . . . and

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the constitutional injury to the plaintiff.” Gray v. City of Detroit, 399 F.3d 612, 617 (6th Cir.

2005).

Kensu alleges that the defendants engage in policies, practices, or customs that result in

their being deliberately indifferent to his serious medical needs. Besides alleging that the staff are

purposely refraining from treating him, falsifying records, and taking away approved devices, he

alleges that the defendants engage in the following policies, practices, or customs:

A. “‘[D]eferring’ 90% to 99% of all physician-recommended referrals for surgery or consultations with specialists; and” B. “[D]enying any outpatient surgery that required an overnight stay.” C. “[I]gnoring treatment recommendations of specialists selected by Defendants to assess the medical condition of Plaintiff and the Class.” D. “[D]isguising treatment denials as ‘deferments’ in which prisoners never get needed treatment, despite recommendations by their treating physicians.”

Even if these policies do exist, Kensu needed to provide at least some evidence that his

medical needs have been denied because of one or more of those policies. He failed to do so.

Although he attached to his Rule 60(b) motion his proposed Response in Opposition to

Defendants’ Motion for Summary Judgment, he provided no documentation to connect the dots

between one of these alleged policies and the medical care he claims to have been denied. The

only evidence available to review are deposition transcripts, referral data from the defendants, and

affidavits from several medical professionals. While Kensu points to some deposition testimony

that the defendants defer referrals, he has not shown that his care was deferred because of the

policy. The only other evidence available to us is the evidence from the defendants, which directly

contradicts Kensu’s allegations. Further, some of Kensu’s complaints appear to be disagreement

with how he is being treated, which is not sufficient to show a constitutional violation. Without at

least some admissible evidence upon which a jury could find in his favor, Kensu cannot

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demonstrate a meritorious claim. The district court therefore did not abuse its discretion when it

denied Kensu’s Rule 60(b)(1) motion.

CONCLUSION

For the foregoing reasons, we AFFIRM.

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