Putman v. Tuscola, County of et al
Filing
37
OPINION and ORDER (1) Sustaining in Part Plaintiff's 29 Objections, (2) Overruling CHC Defendants' 28 Objection as Moot, (3) Adopting 27 Report and Recommendation in Part, (4) Denying as Moot CHC Defendants' 16 Motion to Dismis s, (5) Grating in Part CHC Defendants' 21 Renewed Motion to Dismiss, (6) Dismissing With Prejudice Defendants John Does 1-5, and (7) Dismissing With Prejudice Plaintiff's ADA and RA Claims Against CHC Defendants. Signed by District Judge Thomas L. Ludington. (KWin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
WILLIAM E. PUTMAN II,
Plaintiff,
v.
Case No. 1:23-cv-10427
Honorable Thomas L. Ludington
United States District Judge
COUNTY OF TUSCOLA, et al.,
Defendants.
__________________________________________/
Honorable Patricia T. Morris
United States Magistrate Judge
OPINION AND ORDER (1) SUSTAINING IN PART PLAINTIFF’S OBJECTIONS, (2)
OVERRULING CHC DEFENDANTS’ OBJECTION AS MOOT, (3) ADOPTING
REPORT AND RECOMMENDATION IN PART, (4) DENYING AS MOOT CHC
DEFENDANTS’ MOTION TO DISMISS, (5) GRANTING IN PART CHC
DEFENDANTS’ RENEWED MOTION TO DISMISS, (6) DISMISSING WITH
PREJUDICE DEFENDANTS JOHN DOES 1–5, AND (7) DISMISSING WITH
PREJUDICE PLAINTIFF’S ADA AND RA CLAIMS AGAINST CHC DEFENDANTS
In October 2022, Plaintiff William E. Putman was taken to the Tuscola County Jail (TCJ)
to serve a 30-day sentence. Upon his arrival, Putman informed the jail staff that he had a serious
heart condition that required uninterrupted use of his prescription medication. Putman’s son—a
medical doctor—brought his medication to the jail and told TCJ staff about the medication’s
importance. Specifically, Putman’s son told TCJ’s Medical Director and Nurse—both employees
of Correctional Health Care (CHC)—that Putman needed his prescription medication. But Putman
never received his medication, and three days after he entered TCJ, he suffered an acute cardiac
arrythmia, which obstructed his coronary arteries, resulted in multiple surgeries, and required
weeks of treatment and care at a nearby hospital. In February 2023, Putman sued Tuscola County,
TCJ staff, CHC, and CHC employees, alleging claims of deliberate indifference to his serious
medical need in violation the Eighth Amendment, medical malpractice, and violations of the
Americans with Disabilities Act and the Rehabilitation Act.
The CHC Defendants filed a Motion to Dismiss, and Magistrate Judge Patricia T. Morris
issued a report (R&R) recommending that this Court partially grant CHC’s Motion to Dismiss.
Both Plaintiff and the CHC Defendants filed objections to the R&R, which are now before this
Court.
I.
A.
According to Plaintiff William E. Putman II’s First Amended Complaint,1 he is a 62-yearold man with a “history of congestive heart failure.” ECF No. 19 at PageID.131, 138. In September
2022, a Tuscola County jury found him guilty of four misdemeanor charges of “assault or assault
and battery.” Michigan v. Putman, 22-0129SM-SM (Mich. 71B Dist. Tuscola Cnty.); see also ECF
No. 19 at PageID.138. Before sentencing, the Tuscola County Probation Office submitted a
presentence investigation report to the sentencing judge that outlined Plaintiff’s congestive heart
failure and the “specific treatment and medication” Plaintiff required. Id. at PageID.138–39.
Plaintiff submitted a sentencing memorandum that “emphasized his serious heart condition” and
attached a letter from his treating specialist who opined that “incarceration would be harmful to
[Plaintiff’s] health.” Id.
On October 4, 2022, Plaintiff appeared for his sentencing hearing before Tuscola County
District Judge Jason E. Bitzer. Id. Plaintiff was sentenced to “12 months of probation with the first
30 days to be served in [Tuscola County Jail].” Id. Immediately after the hearing ended, Tuscola
County Sherriff’s Officers transported Plaintiff to TCJ. Id.
1
At the motion to dismiss stage, this Court must assume the facts as alleged in Plaintiff’s First
Amended Complaint, ECF No. 19, are true and evaluate the legal adequacy of those facts. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[A] complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)) (emphasis added)).
-2-
During Plaintiff’s intake at TCJ, Plaintiff told TCJ staff about his serious heart conditions
and necessary prescription medication. Id. at PageID.140. Importantly, one of Plaintiff’s
“necessary prescription medications,” id., was metoprolol, a drug that includes an FDA-approved
warning label stressing that “abrupt cessation of the drug” is linked to angina2 and myocardial
infarction3 and that discontinuation of the drug “requires a gradual reduction and careful
monitoring[.]” Id. at PageID.142. After Plaintiff told TCJ staff about his “necessary prescription
medications,” he alleges TCJ staff “transferred [him] to an observation cell without referring him
for further medical assessment.” Id.
Meanwhile, Plaintiff’s two sons—“Billy and Dr. Putman”—“discussed their father’s heart
conditions and necessary medication with” Defendant Kyle Nordstrom, a TCJ Corrections Officer
who was working that day. Id. Dr. Putman explained to Defendant Nordstrom that he was
Plaintiff’s primary care physician and that Plaintiff “required uninterrupted administration of his
cardiac prescription medications, including metoprolol, clopidogrel,4 and atorvastatin.5” Id. at
2
Angina, also referred to as angina pectoris, is a “type of chest pain caused by reduced blood flow
to the heart” and is a common symptom of coronary artery disease. Individuals who experience
angina describe a “squeezing, pressure, heaviness, [or] tightness” in their chest. Angina, MAYO
CLINIC (March 22, 2024), https://www.mayoclinic.org/diseases-conditions/angina/symptomscauses/syc20369373#:~:text=Angina%20(an%2DJIE%2Dnuh,also%20is%20called%20angina
%20pectoris. [https://perma.cc/3C9M-PM22].
3
Myocardial infraction is a technical term for a heart attack, caused by the decreased or complete
cessation of blood flow from a portion of the myocardium. Myocardial Infraction, NAT’L LIBR. OF
MED. (last updated Aug. 8, 2023), https://www.ncbi.nlm.nih.gov/books/NBK537076/#:~:text=
Myocardial%20infarction%20(MI)%2C%20colloquially,hemodynamic%20deterioration%20and
%20sudden%20death. [https://perma.cc/X7KS-JVYX].
4
Clopidogrel is a blood platelet inhibitor which reduces the chance that a harmful blood clot will
block an individual’s arteries. Clopidogrel (Oral Route), MAYO CLINIC (last updated March 1,
2024),
https://www.mayoclinic.org/drugs-supplements/clopidogrel-oral-route/description/drg20063146 [https://perma.cc/P3YB-3BVC].
5
Atorvastatin is a medication used to lower cholesterol and fat levels in the blood to prevent chest
pain, heart attacks, and strokes. Atorvastatin (Oral Route), MAYO CLINIC (last updated March 1,
2024), https://www.mayoclinic.org/drugs-supplements/atorvastatin-oral-route/description/drg-3-
PageID.140. Plaintiff’s sons received permission from Defendant Nordstrom to bring Plaintiff’s
prescriptions to TCJ and delivered “the metoprolol prescription, along with Dr. Putman’s written
orders,” to TCJ. Id. But around 11:00 PM later that day, Plaintiff “informed his children” that
Defendants had not given him any of his prescription medications, “despite his repeated requests.”
Id. at PageID.140–41.
The next morning, Dr. Putman called “TCJ’s Site Medical Director and sole physician,
Defendant [Dr. Joseph] Natole,” but Defendant “Natole did not take Dr. Ptuman’s call.” Id. at
PageID.141. Accordingly, Dr. Putman “left Natole an urgent message about their mutual patient’s
serious cardiac condition and its management with daily metoprolol.” Id. But, Plaintiff alleges, no
one from Defendant Natole’s office returned Dr. Ptuman’s call. Id.
Having received no response by 6:00 PM that day, Dr. Putman “drove back to TCJ” and
“pleaded with CHC’s employee, [Defendant] Nurse Doe,” explaining the urgency and importance
of Plaintiff being given his medications and that “without uninterrupted use of his prescription
metoprolol and other medications, it was obvious that his father risked death.” Id.
After Dr. Putman’s conversation with Defendant Nurse Doe, Plaintiff “eventually
received” a single dose of an “unknown medication contrary to Dr. Putman’s prescription and
written instructions,” later that night. Id. Afterwards, Plaintiff spoke with his sons through TCJ’s
videoconference system and told them he had still not received his prescription medications. Id. at
PageID.142. Plainitff’s sons reported he seemed “disoriented” and “repeatedly stat[ed] that he was
thirsty.” Id.
20067003#:~:text=Descriptions,fats%20clogging%20the%20blood%20vessels.[https://perma.cc/
G9B8-KSN5].
-4-
After the video call with his sons, Plaintiff “complained to Defendants that he was having
chest pain, difficulty breathing, nausea, vomiting, and swelling in his extremities.” Id. Plaintiff
alleges “his complaints went unanswered” and “Defendants ignored his pleas for help.” Id. at
PageID.142–43.
On October 7, 2022, Plaintiff was “rushed by ambulance to McLaren Regional Hospital in
Caro, Michigan.” Id. at PageID.143. After testing and evaluation, doctors recommended that
Plaintiff “receive a transesophageal echocardiogram and cardioversion,” and that he be transferred
to the University of Michigan Hospital in Ann Arbor. Id. During the ambulance ride to University
of Michigan Hospital, Plaintiff “lost consciousness,” and evaluation upon arrival at University of
Michigan Hospital “confirmed that [Plaintiff] was experiencing acute coronary syndrome6 and
atrial fibrillation.”7 Id. As a result, Plaintiff “underwent multiple surgeries and spent several weeks
in the hospital” before serving the remainder of his 30-day jail sentence. Id.
B.
In February 2023, Plaintiff sued Tuscola County, CHC, Dr. Joseph Natole, M.D., Nurse
Jane Doe, LPN, John Does 1-5,8 Glenn Skrent, Robert Baxter, Brian Harris, Kyle Nordstrom, and
Ryker Maurer. ECF No. 1. He alleged all Defendants were deliberately indifferent to his serious
6
Acute coronary syndrome is a term that describes the sudden, reduced blood flow to the heart,
often causing individuals severe chest pain and discomfort. Acute Coronary Syndrome, MAYO
CLINIC (May 16, 2023), https://www.mayoclinic.org/diseases-conditions/acute-coronarysyndrome/symptoms-causes/syc-20352136 [https://perma.cc/AA2E-TV8R].
7
Also known as “AFib,” atrial fibrillation describes an irregular and “very rapid” heart rhythm
which can lead to blood clots in the heart. Atrial Fibrillation, MAYO CLINIC (March 8, 2024)
https://www.mayoclinic.org/diseases-conditions/atrial-fibrillation/symptoms-causes/syc20350624#:~:text=Atrial%20fibrillation%20(AFib)%20is%20an,and%20other%20heart%2Drela
ted%20complications. [https://perma.cc/7K48-HQKK].
8
Plaintiff alleges that John Does 1–5 “were, at all relevant times, correctional officers or medical
staff at TCJ and employees or subcontractors of either the Tuscola County Sheriff’s Office or
CHC.” ECF No. 19 at PageID.137.
-5-
medical needs, in violation of the Eighth Amendment, and that CHC and Tuscola County were
liable as municipalities under Monell. ECF No. 19. He also alleges that CHC, Dr. Natole, and
Nurse Doe are liable for medical malpractice under Michigan law; (2) that Tuscola County,
Nordstrom, Natole, and Nurse Doe violated the Americans with Disabilities Act and the
Rehabilitation Act; and (3) that Tuscola County, Skrent, Baxter, Harris, Maurer, and Nordstrom,
retaliated against Plaintiff for his public opposition of a bond proposal to fund the construction of
a new jail. Id.
On May 9, 2023, CHC, Nurse Doe, and Joseph Natole (“the CHC Defendants”) filed a
joint motion to dismiss. ECF No. 16. In response, Plaintiff filed his First Amended Complaint.
ECF No. 19. Two weeks later, the CHC Defendants filed a Renewed Motion to Dismiss addressing
Plaintiff’s First Amended Complaint. ECF Nos. 19; 21. Both motions were referred to Magistrate
Judge Patricia T. Morris, ECF No. 23, and on January 9, 2024, Judge Morris issued a report (R&R)
recommending Defendants’ Renewed Motion to Dismiss, ECF No. 21, be granted in part, and that
this Court sua sponte dismiss John Does 1-5. ECF No. 27. She also recommended that Defendants’
first Motion to Dismiss, ECF No. 16, be denied as moot.
Both Plaintiff and Defendants objected to the R&R. See ECF Nos. 28; 29.
II.
A.
A party may object to and seek review of a magistrate judge’s report and recommendation.
See FED. R. CIV. P. 72(b)(2). If a party objects, then “[t]he district judge must determine de novo
any part of the magistrate judge’s disposition that has been properly objected to.” FED. R. CIV. P.
72(b)(3). The parties must state any objections with specificity within a reasonable time. Thomas
v. Arn, 474 U.S. 140, 151 (1985) (citation omitted).
-6-
Failure to file specific objections constitutes a waiver of any further right of appeal. Id. at
155; Howard v. Sec’y of Health & Human Servs., 932 F.2d 505, 508 (6th Cir. 1991); United States
v. Walters, 638 F.2d 947, 950 (6th Cir. 1981). Parties may not “raise at the district court stage new
arguments or issues that were not presented” before the magistrate judge’s final R&R. See Murr
v. United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000).
When reviewing an R&R de novo, this Court must review at least the evidence that was
before the magistrate judge. See Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir. 1981). After
reviewing the evidence, the court is free to accept, to reject, or to modify the magistrate judge’s
findings or recommendations. FED. R. CIV. P. 72(b)(3); Peek v. Comm’r of Soc. Sec., No. 1:20CV-11290, 2021 WL 4145771, at *2 (E.D. Mich. Sept. 13, 2021).
B.
Under Civil Rule 12(b)(6), a pleading fails to state a claim if it does not contain allegations
that support recovery under any recognizable theory. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
When considering a Rule 12(b)(6) dismissal, the court must accept all factual allegations of the
complaint as true and will construe the pleading in favor of the nonmovant. See Lambert v.
Hartman, 517 F.3d 433, 439 (6th Cir. 2008). The plaintiff need not provide “detailed factual
allegations” to survive dismissal, but the “obligation to provide the ‘grounds’ of his ‘entitle[ment]
to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of
a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In essence,
the plaintiff’s complaint “must contain sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face,” but the court need not accept as true the complaint’s legal
conclusions. Iqbal, 556 U.S. at 678–79 (quotations and citation omitted).
-7-
III.
The CHC Defendants’ sole objection argues that the R&R erred in not addressing whether
this Court should retain supplemental jurisdiction over Plaintiff’s state law claims, if all federalquestion claims were dismissed. ECF No. 28. Plaintiff lodges seven objections concerning the
dismissal of Plaintiff’s deliberate-indifference claim against Defendant Natole (Objections 1–3),
Plaintiff’s deliberate-indifference and medical-malpractice claims against Defendant Nurse Doe
(Objections 4 and 6), Plaintiff’s Monell claim against CHC (Objection 5), and Plaintiff’s ADA and
RA claims against Defendants Natole and Nurse Doe (Objection 7). Each objection will be
addressed in turn.
A. Plaintiff’s Objections 1, 2, and 3: Deliberate Indifference against Defendant Natole
Plaintiff’s first three objections to the R&R relate to the Magistrate Judge’s conclusion that
Plaintiff did not plead sufficient facts to state a claim for Eighth Amendment deliberate
indifference against Defendant Natole. See ECF No. 29 at PageID.311 (objecting to the conclusion
that the Amended Complaint contains only two factual statements involving Defendant Natole);
ECF No. 29 at PageID.314 (objecting to the conclusion that Plaintiff’s Amended Complaint did
not contain allegations that Plaintiff or either of his sons directly spoke to Defendant Natole); ECF
No. 29 at PageID.315 (objecting to the conclusion that Plaintiff failed to state a deliberateindifference claim against Defendant Natole).
Under 42 U.S.C. § 1983, a plaintiff may sue any “person” who, under the color of state
law, subjects any citizen to the deprivation of any rights, privileges, or immunities secured by the
Constitution See 42 U.S.C. § 1983. Accordingly, to “prevail on a cause of action under § 1983, a
plaintiff must prove (1) the deprivation of a right secured by the Constitution or laws of the United
States (2) caused by a person acting under the color of state law.” Winkler v. Madison Cnty., 893
-8-
F.3d 877, 890 (6th Cir. 2018); Shadrick v. Hopkins Cnty., 805 F.3d 724, 736 (6th Cir. 2015); see
also Jones v. Muskegon Cnty. 625 F.3d 935, 941 (6th Cir. 2015).
The Eighth Amendment guarantees the right to be free from cruel and unusual punishment.
U.S. CONST. amend. VIII. A prisoner asserting a deliberate-indifference claim under the Eight
Amendment must show: (1) an objectively serious medical need, and “(2) that the defendant knew
‘of and disregard[ed] an excessive risk to [the prisoner’s] health or safety.”’ Est. of Abbey v.
Herring, 598 F. Supp. 3d 572, 583–84 (E.D. Mich. 2022) (quoting Farmer v. Brennan, 511 U.S.
825, 837 (1994); Rhinehart v. Scutt, 894 F.3d 721, 737–38 (6th Cir. 2018)). Under the second,
subjective prong, a plaintiff must demonstrate a high standard of culpability, equivalent to criminal
recklessness. Id.; Greene v. Crawford Cnty., 22 F.4th 593, 605 (6th Cir. 2022); Griffith v. Franklin
Cnty., 975 F.3d 554, 568 (6th Cir. 2020). In other words, the plaintiff must show that each
defendant “‘subjectively perceived facts from which to infer substantial risk to the prisoner, that
he did in fact draw the inference, and that he then disregarded that risk’ by failing to take reasonable
measures to abate it.” Rhinehart, 894 F.3d at 738 (quoting Comstock v. McCrary, 273 F.3d 693,
703 (6th Cir. 2001)).
The R&R concluded that Plaintiff had not plausibly pleaded a deliberate-indifference claim
against Defendant Natole because Plaintiff did not plead sufficient facts to establish Defendant
Natole’s “personal involvement or subjective awareness” of his alleged medical need. ECF No. 27
at PageID.290. Plaintiff objected, arguing his operative Complaint contained many facts
establishing Defendant Natole’s involvement, and that the specific factual allegation that Dr.
Putman left a message for Defendant Natole satisfied the subjective component of the deliberateindifference analysis at the motion-to-dismiss stage. ECF No. 29 at PageID.311–15.
-9-
The facts alleged in Plaintiff’s First Amended Complaint, ECF No. 19, are sufficient to
state a deliberate-indifference claim against Defendant Natole. Beginning with the first, objective
prong, Plaintiff alleges the uninterrupted use of his heart medications was an objectively serious
medical need. See ECF No. 19 at PageID.138–39 (“Mr. Putman had a history of congestive heart
failure and was currently receiving specific treatment and medication.”); PageID.140 (“Mr.
Putman required uninterrupted administration of his cardiac prescription medications, including
metoprolol[.]”); PageID.142 (“[The] FDA-approved warning label for Mr. Putman’s metoprolol
proscription warns that ‘abrupt cessation’ of the drug is linked to angina and myocardial
infarction[.]”). See Harrison v. Ash, 539 F.3d 510, 518 (6th Cir. 2008) (noting an objectively
serious medical need includes conditions that have been “diagnosed by a physician as mandating
treatment” or that are “so obvious that even a lay person would easily recognize the necessity for
a doctor’s attention.” (citing Blackmore v. Kalamazoo County, 390 F.3d 890, 897 (6th Cir. 2004))).
Plaintiff also pleads sufficient facts to establish the second, subjective prong to state a
deliberate-indifference claim against Defendant Natole. Plaintiff alleges:
On the morning of October 5, 2023, Dr. Putman called the office of TCJ’s Site
Medical Director and sole physician, Defendant Natole. Yet Natole did not take Dr.
Putman’s call. Still, Dr. Putman left Natole an urgent message about their mutual
patient’s serious cardiac condition and its management with daily metoprolol.
Unsurprisingly, neither Natole nor anyone from his office ever returned Dr.
Putman’s phone call.
ECF No. 19 at PageID.141. Plaintiff’s First Amended Complaint also alleges that Defendants
Natole and Nurse Doe gave Plaintiff medication later that night that was “contrary to Dr. Putman’s
prescription and written instructions.” Id.
In sum, Plaintiff’s Complaint, which asserts that Dr. Putman left a message with Defendant
Natole, pleads sufficient facts to survive Defendant Natole’s Motion to Dismiss. Although there
may be a dispute about whether Defendant Natole received Dr. Putman’s message, that dispute is
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best resolved through discovery and at summary judgment. See Farthing v. Bluegrass Reg'l
Recycling Corp., No. 5:20-CV-277-CHB, 2023 WL 6395583, at *15 (E.D. Ky. Sept. 29, 2023)
(concluding, at summary judgment, that medical-provider defendant had no knowledge of serious
medical need where facts showed that the medical-provider defendant never responded to a text
message, testified she was unaware of the text when it was sent, and the content of the text message
suggested that other providers were handling the situation properly); Forton v. Cnty. of Ogemaw,
435 F. Supp. 2d 640, 655 (E.D. Mich. 2006), aff'd sub nom. Forton v. Ogemaw Cnty., 246 F. App'x
309 (6th Cir. 2007) (dismissing plaintiff’s deliberate-indifference claim at summary judgment
where voicemail message left on medical-provider defendant’s work telephone did not convey the
seriousness of the medical condition).
Accordingly, Plaintiff’s Objections 1, 2, and 3 will be sustained, and the Magistrate Judge’s
R&R will be overruled to the extent it concludes Plaintiff failed to state a claim against Defendant
Natole and recommends dismissal of Plaintiff’s deliberate-indifference claim against him.
B. Plaintiff’s Objection 4: Deliberate Indifference against Nurse Doe
Plaintiff also objects to the R&R’s conclusion that he failed to state a deliberateindifference claim against Defendant Nurse Doe. See ECF No. 29 at PageID.321–24. The R&R
concluded that Plaintiff’s allegation that Defendant Nurse Doe “administered medication other
than Plaintiff’s prescriptions to him” was insufficient to allege conscious disregard of Plaintiff’s
medical need. ECF No. 27 at PageID.291.
But “a decision to provide an ‘easier and less efficacious treatment’ may suffice to establish
deliberate indifference.” Darrah v. Krisher, 865 F.3d 361, 372 (6th Cir. 2017) (quoting Warren v.
Prison Health Servs., Inc., 576 Fed. Appx. 545, 552 (6th Cir. 2014)). This is especially so where,
as here, there is no apparent “medical reason” that Defendant Nurse Doe dispensed a different
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medication to Plaintiff, and the serious medical need was the abrupt cessation of one specific
medication—metoprolol. Id. True, as Judge Morris noted, Defendant Nurse Doe’s decision to
provide a different medication could be nothing more than a difference in medical opinion, that
would hardly violate Plaintiff’s Eighth Amendment rights. See ECF No. 27 at PageID.292; see
also Collins v. Warren Cnty., Tennessee, No. 4:22-CV-49-KAC-SKL, 2023 WL 4189653, at *3
(E.D. Tenn. June 26, 2023) (“A prison doctor may prescribe an adequate, alternative treatment
without violating the Eighth Amendment.” (citing Rhinehart v. Scutt, 894 F.3d 721, 742 (6th Cir.
2018))). But the factual adequacy of the treatment Defendant Nurse Doe provided is best
determined at summary judgment. The Complaint alleges Defendant Nurse Doe was aware of
Plaintiff’s specific need for metoprolol, was aware of the risks if he did not receive it, and chose
to dispense a different medication. Thus, Plaintiff has sufficiently alleged that Defendant Nurse
Doe disregarded his serious medical need by only providing him with a different medication. See
Darrah v. Krisher, 865 F.3d 361, 368 (6th Cir. 2017) (citing Boretti v. Wiscomb, 930 F.2d 1150,
1154 (6th Cir. 1991)) (reiterating that the interruption of a prescribed treatment plan may violate
the constitution).
Accordingly, Plaintiff’s Objection 4 will be sustained, and the R&R will be overruled to
the extent it concluded Plaintiff failed to state a claim against Defendant Nurse Doe and
recommended dismissal of Plaintiff’s deliberate-indifference claim against her.
C. Plaintiff’s Objection 5: Monell Claim against CHC
Plaintiff alleges CHC9 is liable under Monell for policies and practices that caused its
employees to violate Plaintiff’s constitutional rights. See ECF No. 19 at PageID.147–53. But the
9
Since Monell, the Sixth Circuit has held that private entities, like CHC, may also be treated as
“persons” and subject to § 1983 liability when the entity performs traditional state functions like
providing medical care to inmates or arrestees. Winkler, 893 F.3d at 904 (“A private entity . . . that
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R&R concluded that Plaintiff’s Monell claim against CHC should be dismissed. ECF No. 29 at
PageID.325–28. Plaintiff objects, arguing he sufficiently alleged CHC’s Monell liability under
three distinct theories.
In Monell, the Supreme Court held that municipalities can be treated as “persons” and
subject to § 1983 liability. Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 690
(1978). But a municipality cannot be liable for § 1983 deprivations merely because they employ
an officer who violates § 1983. Monell, 326 U.S. at 691. (“[A] municipality cannot be held liable
under § 1983 on a respondent superior theory.”). And a municipality cannot be liable if their
officers commit no constitutional violation in the first place. Roell v. Hamilton Cnty., 870 F.3d
471, 487 (6th Cir. 2017).
Municipalities are only liable under Monell for their “official policies” which cause an
employee to violate another’s constitutional rights. Monell, 436 U.S. at 692. Generally, there are
four “avenues a plaintiff may take to prove the existence of a [defendant’s] illegal policy or custom.
The plaintiff can look to (1) the [defendant’s] legislative enactments or official agency policies;
(2) actions taken by officials with final decision-making authority; (3) a policy of inadequate
training or supervision; or (4) a custom of tolerance or acquiescence of federal rights violations.”
Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005); Pembaur v. City of Cincinnati,
475 U.S. 469, 480 (1986). But, even when a plaintiff can show a sufficient official policy, a
plaintiff must also “connect the policy to the municipality, and [] show that [the] particular injury
was incurred due to the execution of that policy.” Vereecke v. Huron Valley School Dist., 609 F.3d
392, 404 (6th Cir. 2010).
contracts to provide medical services at a jail can be held liable under § 1983 because it is carrying
out a traditional state function”); Street v. Corr. Corp. of Am., 102 F.3d 810, 817–18 (6th Cir.
1996) (treating a private prison corporation as a “person” for the purpose of. § 1983).
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Here, Plaintiff pursues the latter three avenues of Monell liability, each of which will be
discussed below.
1. Final Decisionmaker
Plaintiff first alleges that CHC is liable under Monell broadly because Defendant Natole,
the Site Medical Director and physician, acted with final decision-making authority while Plaintiff
was confined at TCJ. See ECF No. 19 at PageID.152–53. To succeed on this “final decisionmaker”
theory of Monell liability, a plaintiff must show that an official “responsible for establishing final
policy with respect to the subject in question” made a “deliberate choice to follow a course of
action . . . from among various alternatives” and that the final decisionmaker’s chosen course of
action caused the plaintiff’s harm. Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986).
As a threshold matter, to the extent Plaintiff attempts to assert CHC is liable under Monell
because Defendant Natole was “an official with final authority” who “made a deliberate choice to
interfere with [Plaintiff’s] treatment plan,” ECF No. 34 at PageID.459, see also ECF No. 19 at
PageID.153, any such theory of Monell liability is without merit. A municipality may not be held
liable under § 1983 on a respondeat superior vicarious liability theory—in other words, ‘solely
because it employs a tortfeasor.’” D'Ambrosio v. Marino, 747 F.3d 378, 388–89 (6th Cir. 2014)
(quoting Monell, 436 U.S. at 691). In sum, CHC may not be liable simply because Defendant
Natole may have been deliberately indifferent to Plaintiff’s serious medical need in violation of
the Eighth Amendment.
To the extent Plaintiff argues that Defendant Natole was a final decisionmaker who
“ratified TCJ and CHC’s policy and custom of not providing in-person physician services,” ECF
No. 19 at PageID.153, he has not pleaded any facts suggesting that Defendant Natole’s decisions
regarding in-person physician services were not subject to review by CHC or TCJ, or that
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Defendant Natole possessed any authority to “formulate plans for the implementation of broad
goals” regarding in-person physician services at TCJ. Miller v. Calhoun Cnty., 408 F.3d 803, 814
(6th Cir. 2005) (quoting Hager v. Pike Cnty. Bd. Of Educ., 286 F.3d 366, 376 (6th Cir. 2002)).
Accordingly, Plaintiff has not sufficiently pleaded a “final decisionmaker” Monell claim.
2. Failure to Train or Supervise
Plaintiff next alleges CHC is liable under Monell for failing to adequately staff, train, and
supervise employees to provide necessary medical care to inmates at TCJ. ECF No. 19 at
PageID.147–48.
To succeed on his “failure to train or supervise” theory of Monell liability, Plaintiff must
prove that (1) the training or supervision was inadequate for the tasks performed; (2) the
inadequacy was the result of CHC's deliberate indifference; and (3) the inadequacy was closely
related to or directly caused the injury. Ellis ex rel. Pendergrass v. Cleveland Mun. School Dist.,
455 F.3d 690, 700–01 (6th Cir. 2006) (citing Russo v. City of Cincinnati, 953 F.2d 1036, 1046 (6th
Cir. 1992)). There are “at least two situations in which inadequate training could be found to be
the result of deliberate indifference.” Cherrington v. Skeeter, 344 F.3d 631, 646 (6th Cir. 2003). A
plaintiff can demonstrate deliberate indifference by showing that the municipality “was aware of
‘prior instances of unconstitutional conduct’ such that [the municipality] ‘was clearly on notice
that the training in this particular area was deficient and likely to cause injury’ and yet ‘ignored a
history of abuse.’” Victor v. Reynolds, 582 F. Supp. 3d 516, 522 (E.D. Mich. 2022) (quoting Fisher
v. Harden, 398 F.3d 837, 849 (6th Cir. 2005)). A plaintiff can also demonstrate a municipality’s
Monell liability by showing that the municipality failed to equip its nurses with specific tools
necessary to handle recurring situations. See Victor, 582 F. Supp. 3d at 522 (citing Bd. Of Cnty.
Comm’rs of Bryan Cnty. V. Brown, 520 U.S. 397, 409 (1997)). Under this approach, a plaintiff
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does not need to prove that the municipality was on notice of a pattern of unconstitutional conduct,
but only that “the risk of the constitutional violation was so obvious or foreseeable that [the
municipality] was deliberately indifferent for failing to prepare the [medical provider] for it.”
Victor, 582 F. Supp. 3d at 523 (citing Connick v. Thompson, 563 U.S. 51, 63 (2011)). Plaintiff
contends he has sufficiently alleged both approaches. ECF No. 29 at PageID.326.
But Plaintiff’s First Amended Complaint does not allege any “prior instances of
unconstitutional conduct demonstrating that [CHC] has ignored a history of abuse and was clearly
on notice that the training in this particular area was deficient and likely to cause injury.” See
Miller v. Sanilac Cnty., 606 F.3d 240, 255 (6th Cir. 2010) (citing Fisher, 398 F.3d at 849). True,
Plaintiff cites the National Sheriff’s Association’s 2018 report regarding the adequacy of TCJ’s
policies, procedures, and operations. See ECF No. 19 at PageID.148–49. But this report says
nothing about CHC’s failure to train or supervise its employees. See id. To the contrary, it alleges
that many of the inadequate medical policies and procedures at TCJ are a direct result of TCJ’s
failure to adequately train its jail staff to conduct risk and health assessments during intake
procedures. See id. at PageID.148. And it notes that TCJ should “[c]onsider extending contractual
coverage” to better assess people during intake. Id. at PageID.149. In sum, although Plaintiff may
have stated a claim against TCJ under this theory, he has not stated one against CHC.
Plaintiff argues he has stated a failure-to-train Monell claim under the “single-incident
liability” theory by alleging that CHC “failed to provide Nurse Doe specific training on inmate
health care, including assessing and documenting medical conditions of inmates, obtaining
physician orders, providing ordered treatments to inmates, monitoring patient progress, or
providing necessary emergency care to inmates.” ECF No. 19 at PageID.150.
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Plaintiff’s allegations that CHC failed to train its employees regarding inmate healthcare
are, at this juncture, sufficient to survive CHC’s Motion to Dismiss. Plaintiff alleges that his son,
Dr. Putman, “explained to [Defendant Nurse Doe] that his father suffered from several serious
cardiac conditions and without uninterrupted use of his prescription metoprolol and other
medications, it was obvious that his father risked death.” ECF No. 19 at PageID.141. Plaintiff
further alleges that despite this conversation, Defendant Nurse Doe only dispensed “a single dose
of an unknown medication contrary to Dr. Putman’s prescription and written instructions,” id. and
that Nurse Doe “lacked the specific tools and competency to handle chronic care patients like
[Plaintiff],” such that it was obvious that her lack of training regarding procuring physician’s
orders and providing prescribed treatments in a jail setting was “so likely to result in the violation
of constitutional rights,” that CHC can reasonably be said to have been deliberately indifferent to
the need.10 Victor, 582 F. Supp. 3d at 522; City of Canton, 489 U.S. at 390, 109 S. Ct. 1197.
Accordingly, Plaintiff’s objections will be sustained and the R&R will be overruled to the extent
Plaintiff’s Monell claim under a failure-to-train theory may proceed.
3. Custom of Tolerance or Acquiescence
Plaintiff next alleges that CHC is liable under Monell because it tolerated or acquiesced the
“policy and custom of not providing in-person physician services.” ECF No. 19 at PageID.153.
10
Although Plaintiff’s failure-to-train claim will survive CHC’s Motion to Dismiss, it is worth
noting that why Nurse Doe chose to dispense a different, unknown medication will be important
at summary judgment because Plaintiff must be able to prove that CHC's failure to train–rather
than some other unknown circumstance–caused the different dose. For example, if she dispensed
a different, unknown medication to Plaintiff because she could not obtain physician’s orders to
dispense it, or because she was exercising her professional, medical judgment, CHC's training
seems irrelevant. If, on the other than, she did not know how to provide the prescription to Plaintiff,
CHC’s failure to train its employees is more directly the cause of Plaintiff’s injuries.
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According to Plaintiff, “neither Natole nor any other physician provided in-person medical care at
TCJ.” Id.
To show a municipality’s had a custom of constitutional deprivations sufficient for Monell
liability, a plaintiff must prove “(1) the existence of a clear and persistent pattern of illegal activity;
(2) notice or constructive notice on the part of the defendant; (3) the defendant's tacit approval of
the unconstitutional conduct, such that their deliberate indifference in their failure to act can be
said to amount to an official policy of inaction; and (4) that the defendant's custom was the moving
force or direct causal link in the constitutional deprivation.” Stanfield v. Lima, 727 F. App'x 841,
851 (6th Cir. 2018) (internal quotation omitted). Where, as here, a custom or policy is “facially
constitutional but consistently implemented to result in constitution violations with explicit or
implicit ratification by [municipal] policymakers, the plaintiff ‘must demonstrate that the
municipal action was taken with deliberate indifference as to its known or obvious consequences.
A showing of simple or even heightened negligence will not suffice.’” Gregory v. City of
Louisville, 444 F.3d 725, 752 (6th Cir. 2006) (quoting Bd. of County Comm'rs v. Brown, 520 U.S.
397, 407 (1997)).
Importantly, where the facially constitutional custom alleged is not a written policy, as is
the case here based on the allegations in Plaintiff’s First Amended Complaint, see ECF No. 19,
the plaintiff must provide “evidence of a pattern of complaints consistent with his own.” Gregory
v. City of Louisville, 444 F.3d 725, 755 (6th Cir. 2006). But Plaintiff has made no allegations in
his First Amended Complaint that CHC’s custom of not providing in-person services has been
consistently implemented to give rise to complaints by others consistent with his own complaint.
See generally ECF No. 19. Accordingly, he has not stated a custom or tolerance theory of Monell
liability.
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D. Plaintiff’s Objection 6: Medical Malpractice Claim against Nurse Doe
Plaintiff also asserted claims of medical malpractice against the CHC Defendants. The
CHC Defendants sought dismissal, arguing that Plaintiff did not comply with Michigan’s medical
malpractice laws that require (1) a written notice of intent (NOI) 182 days before filing an action;
and (2) an affidavit or merit to be filed with the complaint. ECF No. 21 at PageID.231–35.
Judge Morris correctly concluded that Plaintiff was not required to file an NOI or affidavit
of merit, because “Michigan’s affidavit-of-merit and presuit-notice requirements do not apply in
diversity actions” brought in federal court. Albright v. Christensen, 24 F.4th 1039, 1049 (6th Cir.
2022; see also ECF No. 27 at PageID.297. Accordingly, her R&R recommended “denying the
motion to dismiss the medical malpractice claim.” Id. at PageID.299. But Plaintiff objected to the
extent the R&R stated earlier that “if the Report [was] adopted,” only “Plaintiff’s medical
malpractice claim against CHC and Natole” would remain. Id. at PageID.278. Plaintiff’s are
correct that this summary conclusion inadvertently omitted Plaintiff’s medical malpractice claim
against Nurse Doe. Accordingly, Plaintiff’s Objection 6 will be sustained, and the R&R will be
adopted to the extent it concludes that the CHC Defendants’ Motion to Dismiss the medical
malpractice claims should be denied. For clarity, the medical malpractice claims against all CHC
Defendants—CHC, Natole, and Nurse Doe—will remain.
E. Plaintiff’s Objection 7: ADA and RA Claims against Defendants Natole and Nurse Doe
Plaintiff also asserts that Defendants Natole and Nurse Doe “fail[ed] to accommodate
[Plaintiff’s] disability” in violation of Title II of the Americans with Disabilities Act and § 504 of
the Rehabilitation Act. ECF No. 19 at PageID.158. Specifically, he alleges he was denied jail credit
for the time he spent receiving emergency care outside of jail, which he alleges constitutes the
denial of a service. Id.
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Judge Morris concluded that Plaintiff did not state a claim against Defendants Natole and
Nurse Doe for violations of the ADA or RA because he did not allege that Defendants Natole and
Nurse Doe failed denied him any service because of his disability. ECF No. 27 at PageID.300–01.
Plaintiff objected to Judge Morris’s conclusion, arguing that his ADA claim alleges a failure to
accommodate, and Judge Morris applied the elements of an intentional-discrimination claim under
the ADA. ECF No. 29 at PageID.330.
“Title II of the ADA provides that ‘no qualified individual with a disability shall, by reason
of such disability, be excluded from participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to discrimination by any such entity.’”
S.S. v. E. Ky. Univ., 532 F.3d 445, 452 (6th Cir. 2008) (quoting 42 U.S.C. § 12132). Section 504
of the Rehabilitation Act establishes that “[n]o otherwise qualified individual with a disability in
the United States . . . shall, solely by reason of her or his disability, be excluded from the
participation in, be denied the benefits of, or be subjected to discrimination under any program or
activity receiving Federal financial assistance.” 29 U.S.C. § 794(a).
Under the ADA, a plaintiff alleging a failure-to-accommodate claim “must show that he is
disabled, was otherwise qualified to receive prison services, and was denied access to prison
services because of his disability.” Douglas v. Muzzin, No. 21-2801, 2022 WL 3088240, at *6 (6th
Cir. Aug. 3, 2022).
To the extent Plaintiff attempts to assert his “accommodation request” was to receive
adequate medical treatment in TCJ, see ECF No. 19 at PageID.158 (alleging Defendants “failed to
provide a reasonable accommodation” to permit Plaintiff to “continue taking” his metoprolol), this
is not an actionable ADA claim. See Vick v. Core Civic, 329 F. Supp. 3d 426, 443 (M.D. Tenn.
2018) (collecting cases) (noting that “courts routinely dismiss ADA suits by disabled inmates that
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allege inadequate medical treatment but do not allege that the inmate was treated differently
because of his or her disability.” (emphasis added)). Indeed, Plaintiff does not allege that
Defendants Natole or Nurse Doe did not dispense his medication because of his disability.
Accordingly, Plaintiff has not plausibly stated that Defendants Natole and Nurse Doe violated the
ADA and RA by not dispensing his medication.
And to the extent Plaintiff alleges that TCJ’s denial of jail credit while he was in the
hospital is a service he was denied because Defendants Natole and Nurse Doe failed to
accommodate his disability, see ECF No. 29 at PageID.330, Plaintiff has not pleaded any facts in
his First Amended Complaint suggesting that Defendants Natole and Doe—medical providers
employed by a private company—were involved in the decision to deprive Plaintiff of jail credit.
Thus, even assuming “jail credit” is a “service” for the purposes of the ADA or RA—an issue this
Court need not analyze—Plaintiff has not stated an ADA or RA claim against either CHC
Defendant, who had no hand in determining Plaintiff’s jail credit. Plaintiff’s Objection 7 will be
overruled, and the R&R will be adopted to the extent it recommends dismissal of Plaintiff’s ADA
and RA claim against Defendants Natole and Nurse Doe.
F. CHC Defendants’ Objection: Supplemental Jurisdiction
Finally, the CHC Defendants’ sole objection to the R&R concerned this Court’s exercise
of supplemental jurisdiction. ECF No. 28. According to Defendants, the R&R should have
recommended this Court either maintain or decline supplemental jurisdiction over the remaining
state law claims, if all federal claims were properly dismissed. Id. at PageID.306. But, upon de
novo review, this Court has determined Plaintiff has stated valid Eighth Amendment deliberate
indifference claims against the CHC Defendants, so their objection is moot, and will be overruled.
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IV.
Accordingly, it is ORDERED that Plaintiff’s Objections, ECF No. 29, are SUSTAINED
IN PART, to the extent that Plaintiff’s Objections 1, 2, 3, 4, and 6 will be sustained, and Objection
5 will be sustained in part.
Further, it is ORDERED that Plaintiff’s Objections, ECF No. 29, are OVERRULED IN
PART, to the extent that Objection 5 will be overruled in part and Objection 7 will be overruled.
Further, it is ORDERED that Defendants’ Objection, ECF No. 28, is OVERRULED AS
MOOT.
Further, it is ORDERED that the Magistrate Judge’s Report and Recommendation, ECF
No. 27, is ADOPTED IN PART, to the extent it recommends (1) dismissal of Plaintiff’s ADA
and RA claim against Defendants Natole and Doe; (2) dismissal of John Does 1-5; (3) denial of
Defendant’s Motion to Dismiss, ECF No. 16, as moot; and (4) denial of Defendants’ Motion to
Dismiss, ECF No. 21, to the extent it seeks dismissal of Plaintiff’s medical-malpractice claims.
Further, it is ORDERED that the Magistrate Judge’s Report and Recommendation, ECF
No. 27, is OVERRULED IN PART, in all other respects.
Further, it is ORDERED that Defendants’ Motion to Dismiss, ECF No. 16, is DENIED
AS MOOT.
Further, it is ORDERED that Defendant’s Renewed Motion to Dismiss, ECF No. 21, is
GRANTED IN PART to the extent it seeks dismissal of Plaintiff’s ADA and RA claims against
Defendants Natole and Doe.
Further, it is ORDERED that Defendants’ Renewed Motion to Dismiss, ECF No. 21, is
DENIED IN PART in all other respects.
Further, it is ORDERED that John Does 1–5 are DISMISSED WITH PREJUDICE.
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Further, it is ORDERED that Plaintiff’s ADA and RA claims against Defendants Natole
and Nurse Doe are DISMISSED WITH PREJUDICE.
Further, it is ORDERED that Plaintiff’s Monell claim against CHC based on a custom or
policy is DISMISSED WITH PREJUDICE.
Plaintiff’s remaining claims against the CHC Defendants11 are as follows:
Count
I
II
III
Claim
Defendants
Eight Amendment Deliberate Indifference
Natole, Nurse Doe
Eight Amendment Deliberate Indifference CHC
under Monell failure-to-train theory
Medical Malpractice
CHC, Natole, Nurse Doe
This is not a final order and does not close the above-captioned case.
Dated: March 26, 2024
11
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Plaintiff’s claims against County Defendants remain unchanged, as they were not at issue.
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