RUTH v. MICHIGAN DEPARTMENT OF CORRETIONS et al

Filing 45

OPINION AND ORDER granting 37 Motion to Dismiss, AMENDED COMPLAINT DISMISSED WITHOUT PREJUDICE, MODIFYING COURT 7/24/13 ORDER TO DISMISSAL WITHOUT PREJUDICE & ALLOWING PLAINTIFF 21 DAYS TO FILE 2ND AMENDED COMPLAINT. Signed by District Judge Patrick J. Duggan. (MOre)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARIUM MERRITT RUTH, personal
representative of the ESTATE OF
SIDNEY GURLY,
Plaintiff,

Case No. 2:12-cv-15251

v.

Hon. Patrick J. Duggan

MICHIGAN DEPARTMENT OF
CORRECTIONS, GUS HARRISON
CORRECTIONAL FACILITY, PAUL
KLEE, Warden of Gus Harrison
Correctional Facility, OFFICER LATTA,
ANIL PRASAD, M.D., ROSILYN
JINDAHL, P.A., SAVITHIV KAKAN,
P.A., DANIEL DUCATT, M.D., and
nurses PAULA MEYER, KIMBERLY
MCGUIRE, BETH FRITZ, and JAMES
MACNAMARA,

Magistrate Judge Laurie J. Michelson

Defendants.
__________________________________/
OPINION AND ORDER
This action, initiated by Marium Merritt Ruth (“Plaintiff”) as personal
representative of the estate of Sidney Gurly (“Gurly”), arises from events
transpiring while Gurly was an inmate at the Gus Harrison Correctional Facility
(“GHCF”). Plaintiff’s Amended Complaint alleges that Gurly became ill after
consuming a prison meal, that he repeatedly sought medical treatment, that the
treatment provided was inadequate, and that he was ultimately found dead in his

jail cell. Plaintiff, filing suit under 42 U.S.C. § 1983 and seeking attorney’s fees
pursuant to 42 U.S.C. § 1988, contends that Defendants – the Michigan
Department of Corrections (“MDOC”), GHCF, and various GHCF personnel
(collectively, the “MDOC Defendants”) – violated Gurly’s Fourth, Eighth, and
Fourteenth Amendment rights. Plaintiff’s Amended Complaint also contains two
counts arising under the laws of the State of Michigan. Presently before the Court
is the MDOC Defendants’ Motion to Dismiss filed pursuant to Federal Rule of
Civil Procedure 12(b)(6). Having determined that oral argument would not
significantly aid the decisional process, the Court dispensed with oral argument
pursuant to Eastern District of Michigan Local Rule 7.1(f)(2). For the reasons
stated herein, the Court grants the MDOC Defendants’ pending motion to dismiss
and dismisses Plaintiff’s Amended Complaint without prejudice.
The Court also uses this occasion to sua sponte reconsider a prior Opinion
and Order issued in connection with the instant action. That Opinion and Order,
issued on July 24, 2013, dismissed Plaintiff’s Amended Complaint against
Defendants Rosilyn Jindahl, Savithiv Kakan, and Anil Prasad (the “Non-MDOC
Defendants”) with prejudice.1 Upon reconsideration of the facts as alleged in the

1

The Court notes that the Non-MDOC Defendants’ filings with this Court
provide the names “Rosilyn Jindal” and “Savithri Kakani.” Unless quoting from a
document filed by these Defendants, the Court uses the names as they appear on
the Court’s Electronic Case Filing system and intends no disrespect by using the
names as furnished by Plaintiff.
2 

Amended Complaint, the Court vacates its July 24, 2013 Opinion and Order to the
extent that it (1) denied Plaintiff an opportunity to amend the pleadings and (2)
dismissed Plaintiff’s Amended Complaint with prejudice. As explained herein, the
Court will permit Plaintiff to file a second amended complaint.
I.
A.

BACKGROUND

Factual Allegations Concerning Gurly’s Death
In 2009, Plaintiff’s decedent Sidney Gurly was incarcerated at the Gus

Harrison Correctional Facility (“GHCF”) located in Adrian, Michigan. (Am.
Compl. ¶¶ 33, 1, ECF No. 18.) Plaintiff alleges that after eating a meal at GHCF,
Gurly began “feeling ill[,] was not able to pass bowels[, and] began experiencing
piercing abdominal pain which caused him to defecate, vomit and urinate blood.”
(Id. at ¶¶ 35-36.) Gurly, believing that he had food poisoning, “notified various
unit officers that he required immediate medical attention[,]” but that these unit
officers “instructed him to wait two or three days before he could seek medical
attention from the [] Healthcare facility.” (Id. at ¶¶ 37-38.)
Gurly visited the healthcare facility on August 3, 2011, and “healthcare staff,
without an examination, prescribed him cholesterol medicine[.]” (Id. at ¶ 39.)
This medication only exacerbated Gurly’s pain, so he once again sought medical
attention. (Id. at ¶ 40.) Gurly’s condition left him in a weakened state, so much so
that “other inmates had to assist him walking to the Healthcare facility.” (Id. at ¶
3 

41.) Although unclear when Gurly returned to the healthcare facility, “the
healthcare staff and Defendant GH[CF] failed and/or refused to properly medically
treat Plaintiff-Decedent but instead, told him to return to his cell and ordered” that
he “stay in bed.” (Id. at ¶ 42.)
After continuing to experience pain, Gurly “notified other inmates and
Defendants that he was peeing blood, could no longer stand straight, and that
despite his requests for medical attention, the Defendants refused to adequately
treat him.” (Id. at ¶ 43.) At this point, “Gurly’s medical needs were so apparent
that other inmates . . . notified the defendants of Gurly’s noticeably declining
health[;]” the inmates’ efforts were to no avail. (Id. at ¶ 45 (capital lettering
removed).) Gurly “wrote several medical request forms (‘kites’) and complaints
stating that his abdominal pain had not abated and that he needed extensive
medical treatment; however, the Defendants failed and refused to provide adequate
medical treatment.” (Id. at ¶ 46.) In the early morning hours of August 6, 2012,
GHCF staff found Gurly deceased in his cell. (Id. at ¶ 47; Defs.’ Answer to Pl.’s
Am. Compl. ¶ 47.2)
B.

Institution of Legal Proceedings

2

In the Answer to Plaintiff’s Amended Complaint, the MDOC Defendants
indicate that Gurly was seen by medical staff on August 5, 2012. (MDOC Defs.’
Answer to Pl.’s Am. Compl. ¶ 42, ECF No. 28.)
4 

On the basis of the foregoing allegations, Plaintiff commenced this action by
filing a two-count complaint with this Court on November 29, 2012. (Compl.,
ECF No. 1.) This original complaint named MDOC, GHCF, GHCF Warden Paul
Klee, Corrections Officer Latta, and seven John Does as defendants. During a
telephonic conference with Magistrate Judge Laurie J. Michelson, the served
defendants agreed to provide certain documentation to Plaintiff such that the John
Does could be identified and further agreed that Plaintiff could file an amended
complaint. An Order memorializing this conversation was entered into the Court’s
electronic case management system. (3/7/13 Order, ECF No. 16.)
Plaintiff’s Amended Complaint, filed on April 25, 2013, identifies the John
Doe defendants and includes three counts: Count I – “Violation of Civil Rights
Pursuant to the Fourth, Eighth and Fourteenth Amendment[s], 42 U.S.C. [§§] 1983
[and] 1988;” Count II – “Gross Negligence;” and Count III – “Acting in Concert.”
(Am. Compl., ECF No. 18.) The latter two counts are creatures of state law.
C.

Post-Complaint Procedural Matters
On May 15, 2013, newly-added Defendants Rosilyn Jindahl, Savithiv

Kakan, and Anil Prasad (the “Non-MDOC Defendants”) filed a motion to dismiss,
which this Court granted in an Opinion and Order dated July 24, 2013. Ruth v.
Mich. Dep’t of Corrs., No. 12-15251, 2013 U.S. Dist. LEXIS 103175 (E.D. Mich.

5 

July 24, 2013) (unpublished). This is the Opinion and Order that the Court
modifies herein.
On May 23, 2013, Defendants MDOC, GHCF, Klee, Latta, as well as
newly-identified Defendants James McNamara, Kimberly McGuire, and Beth Fritz
(collectively, the “MDOC Defendants”) filed an Answer to Plaintiff’s Amended
Complaint. (ECF No. 28.) On September 6, 2013, the MDOC Defendants filed a
motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).3 (ECF No.
37.) This motion is pending before the Court.
Also on September 6, 2013, Plaintiff’s counsel filed a motion to withdraw,
which this Court referred to Magistrate Judge Michelson pursuant to 28 U.S.C. §
636(b)(1)(A). (ECF Nos. 35, 36.) Magistrate Judge Michelson granted the
withdrawal motion on September 26, 2013, gave Plaintiff until October 28, 2013 to
obtain new counsel, and extended Plaintiff’s time to respond to the MDOC
Defendants’ Motion until November 25, 2013. (ECF No. 43.) It appears that

3

Because the MDOC Defendants filed an Answer to Plaintiff’s Amended
Complaint, a motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) is untimely. See Fed. R. Civ. P. 12(b) (explaining that motions filed
pursuant to the rule “must be made before pleading if a responsive pleading is
allowed”). Insofar as this Answer constitutes a “pleading” as defined by Rule
7(a)(2), the proper motion to file would be a Rule 12(c) motion for judgment on
the pleadings. This technical defect is not fatal, however, as the same standard of
review governs motions filed under both Rule 12(b)(6) and Rule 12(c). EEOC v.
J.H. Routh Packing Co., 246 F.3d 850, 851 (6th Cir. 2001) (citation omitted).
Accordingly, the Court construes the MDOC Defendants’ post-answer motion to
dismiss as a motion for judgment on the pleadings.
6 

Plaintiff has not been able to obtain new counsel and is now proceeding pro se.
Plaintiff did not respond to the MDOC Defendants’ Motion to Dismiss.
In the interim, the Court issued an Order to Show Cause, to which Plaintiff
responded, noting that Defendants Daniel Ducatt and Paula Meyer had not been
served within the timeframe provided by Federal Rule of Civil Procedure 4(m).
(ECF Nos. 34, 40.) Despite answering, Plaintiff did not show good cause for
failing to serve the aforementioned defendants. As a result, the Court entered a
Partial Order of Dismissal dismissing Defendants Ducatt and Meyer without
prejudice. (9/26/13 Order, ECF No. 42.)
II.

STANDARD OF REVIEW 4

Federal courts review motions for judgment on the pleadings brought
pursuant to Federal Rule of Civil Procedure 12(c) using the standards applicable to
motions filed under Rule 12(b)(6). EEOC v. J.H. Routh Packing Co., 246 F.3d
850, 851 (6th Cir. 2001) (citation omitted). Though litigants employ these
procedural mechanisms at different stages of the proceedings, the purpose of both
types of motions is to test the sufficiency of a plaintiff’s pleadings. Thus, as with
Rule 12(b)(6) motions, a Rule 12(c) motion allows a court to make an assessment
as to whether a plaintiff’s pleadings have stated a claim upon which relief can be
granted. Fed. R. Civ. P. 12(b)(6).

4

See note 2, supra.
7 

As articulated by the Supreme Court of the United States, “[t]o survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 555, 570, 127 S. Ct. 1955, 1974 (2007)). This facial plausibility standard
requires claimants to put forth “enough fact[s] to raise a reasonable expectation
that discovery will reveal evidence of” the requisite elements of their claims.
Twombly, 550 U.S. at 557, 127 S. Ct. at 1965. Even though a complaint need not
contain “detailed” factual allegations, its “factual allegations must be enough to
raise a right to relief above the speculative level.” Ass’n of Cleveland Fire
Fighters v. City of Cleveland, 502 F.3d 545, 548 (6th Cir. 2007) (citing Twombly,
550 U.S. at 555, 127 S. Ct. at 1965) (internal citations omitted). “The plausibility
standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678, 129 S.
Ct. at 1950 (quoting Twombly, 550 U.S. at 556, 127 S. Ct. at 1965). In this regard,
“[a] claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant” is responsible
for the conduct alleged in the complaint. Id. (citation omitted).
While courts are required to accept the factual allegations in a complaint as
true, Twombly, 550 U.S. at 556, 127 S. Ct. at 1965, the presumption of truth does
8 

not apply to a claimant’s legal conclusions, Iqbal, 556 U.S. at 678, 129 S. Ct. at
1949. Therefore, to survive a motion to dismiss, a plaintiff’s pleading for relief
must provide “more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Ass’n of Cleveland Fire Fighters, 502
F.3d at 548 (quoting Twombly, 550 U.S. at 555, 127 S. Ct. at 1964-65) (internal
citations and quotations omitted); see also Fed. R. Civ. P. 8(a)(2) (“A pleading that
states a claim for relief must contain . . . a short and plain statement of the claim
showing that the pleader is entitled to relief[.]”) (emphasis added). Ultimately,
“[d]etermining whether a complaint states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to draw on its judicial
experience and common sense. But where the well-pleaded facts do not permit the
court to infer more than the mere possibility of [a legal transgression], the
complaint has alleged – but it has not ‘show[n]’ – ‘that the pleader is entitled to
relief.’” Iqbal, 556 U.S. at 679, 129 S. Ct. at 1950 (quoting Fed. R. Civ. P. 8(a)(2))
(internal citations omitted).
III.
A.

ANALYSIS

Count I
In Count I, brought pursuant to 42 U.S.C. §§ 1983 and 1988, Plaintiff

alleges that the MDOC Defendants violated Gurly’s Fourth, Eighth, and
Fourteenth Amendment rights. The Court is unable to ascertain the basis for the
9 

Fourth Amendment claim. Beyond the reference in the heading for Count I, no
allegations regarding the Fourth Amendment are contained in the Amended
Complaint and the Court, therefore, dismisses the Fourth Amendment claim.
Unlike the Fourth Amendment claim, the Eighth Amendment claim figures
predominately into Plaintiff’s allegations. Plaintiff contends that the MDOC
Defendants displayed deliberate indifference towards Gurly’s serious medical
needs in violation of the Eighth Amendment. Lastly, and with respect to the
Fourteenth Amendment component of Count I, Plaintiff’s Amended Complaint
suggests that the MDOC Defendants’ conduct resulted in the deprivation of
Gurly’s “liberty interest under the Constitution including: the right to receive
reasonable medical treatment[.]” (Am. Compl. ¶ 66.) The Court does not believe
that the Fourteenth Amendment claim states a claim as the Eighth Amendment
provides the proper vehicle to analyze claims of inadequate medical treatment in
the prison setting. Cf. United States v. Lanier, 520 U.S. 259, 272 n.7, 117 S. Ct.
1219, 1228 n.7 (1997) (discussing Graham v. Connor, 490 U.S. 386, 394, 109 S.
Ct. 1865, 1870-71 (1989), an excessive force case, and explaining that “Graham
simply requires that if a constitutional claim is covered by a specific constitutional
provision, such as the Fourth or Eighth Amendment, the claim must be analyzed
under the standard appropriate to that specific provision, not under the rubric of

10 

substantive due process”). Accordingly, the Court addresses only Plaintiff’s
allegations concerning the Eighth Amendment.
1.

Eleventh Amendment Defense – State Sovereign Immunity

Before turning to the Eighth Amendment claim, the Court notes that the
MDOC Defendants have raised an Eleventh Amendment sovereign immunity
defense. Plaintiff’s three-count Amended Complaint names twelve defendants,
however, only seven are referred to herein as the MDOC Defendants: MDOC,
GHCF, GHCF Warden Paul Klee, Corrections Officer Latta, Nurse Kimberly
McGuire, Nurse Beth Fritz, and Nurse James McNamara. With the exception of
the entity defendants (MDOC and GHCF), Plaintiff names each defendant in both
their individual and official capacities. (Am. Compl. ¶ 29.)
“The Eleventh Amendment bars suits brought in federal court against a state
and its agencies unless the state has waived its sovereign immunity or consented to
be sued in federal court.” Grinter v. Knight, 532 F.3d 567, 572 (6th Cir. 2008)
(citing Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66, 109 S. Ct. 2304, 230910 (1989)). “[A] suit against a state official in his or her official capacity is not a
suit against the official but rather is a suit against the official’s office.” Will, 491
U.S. at 71, 109 S. Ct. at 2312. Each of the MDOC Defendants are either state
agencies or state employees and the State of Michigan has not waived its immunity
nor has it consented to suit. Accordingly, Plaintiff’s claims against MDOC and
11 

GHCF, as well as Plaintiff’s claims against the individual MDOC Defendants in
their official capacities, are barred by the Eleventh Amendment. See, e.g., Sims v.
Mich. Dep’t of Corrs., 23 F. App’x 214, 215 (6th Cir. 2001) (“Because the MDOC
is a state agency and the State of Michigan has not consented to civil rights suits in
the federal courts, the MDOC is entitled to Eleventh Amendment immunity.”)
2.

Governing Legal Standards

Section 1983 “creates no substantive rights; it merely provides remedies for
deprivations of rights established elsewhere.” Gardenhire v. Schubert, 205 F.3d
303, 310 (6th Cir. 2000). Thus, to prevail on a federal civil rights claim brought
pursuant to 42 U.S.C. § 1983, a plaintiff must establish: “‘(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.’” Miller v. Sanilac County, 606 F.3d
240, 247 (6th Cir. 2010) (quoting Sigley v. City of Parma Heights, 437 F.3d 527,
533 (6th Cir. 2006))
Here, Plaintiff alleges that Gurly was deprived of his rights protected by the
Eighth Amendment. The Eighth Amendment embodies “‘broad and idealistic
concepts of dignity, civilized standards, humanity, and decency . . .,’ against which
[courts] must evaluate penal measures.” Estelle v. Gamble, 429 U.S. 97, 102, 97 S.
Ct. 285, 290 (1976) (internal citation omitted). These principles give rise to a
governmental “obligation to provide medical care for those whom it is punishing
12 

by incarceration.” Id. at 103, 97 S. Ct. at 290; see also Baker v. City of Detroit,
217 F. App’x 491, 495 (6th Cir. 2007) (unpublished) (“The Supreme Court in
Deshaney [v. Winnebago County Dept. of Social Servs., 489 U.S. 189, 199-200,
109 S. Ct. 998, 1005 (1989)] recognized a line of cases ‘stand[ing] . . . for the
proposition that when the State takes a person into its custody and holds him there
against his will, the Constitution imposes upon it a corresponding duty to assume
some responsibility for his safety and general well-being.’”). Such an obligation
arises because inmates “must rely on prison authorities to treat [their] medical
needs; if the authorities fail to do so, those needs will not be met.” Estelle, 429
U.S. at 103, 97 S. Ct. at 290. Even in non-life-threatening cases, “denial of
medical care may result in pain and suffering which no one suggests would serve
any penological purpose.” Id.
To sustain a § 1983 claim arising from the Eighth Amendment’s prohibition
against cruel and unusual punishment and based on inadequate medical treatment,
Plaintiff must demonstrate that the MDOC Defendants acted with deliberate
indifference to Gurly’s serious medical needs in diagnosing or treating him. See,
e.g., Blackmore v. Kalamazoo County, 390 F.3d 890, 895 (6th Cir. 2004).
Deliberate indifference claims consist of two components, one objective and the
other subjective. “Satisfying the objective component ensures that the alleged
deprivation is sufficiently severe, while satisfying the subjective component
13 

‘ensures that the defendant prison official acted with a sufficiently culpable state of
mind.’” Quigley v. Tuong Vinh Thai, 707 F.3d 675, 681 (6th Cir. 2013) (quoting
Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir. 2003)). The objective
component requires proof that “a substantial risk to [the prisoner’s] health or safety
existed.” Villegas v. Metro. Gov’t of Nashville, 709 F.3d 563, 571 (6th Cir. 2013).
The subjective component requires proof that (1) “the official being sued
subjectively perceived facts from which to infer substantial risk to the [prisoner],”
(2) the official “did in fact draw that inference,” and (3) the official “then
disregarded that risk.” Quigley, 707 F.3d at 681 (internal quotations omitted).
While deliberate indifference entails something more than mere negligence
or even gross negligence, the standard is satisfied by something less than acts or
omissions for the purpose of causing harm or with knowledge that harm will result.
Farmer v. Brennan, 511 U.S. 825, 835-36, 114 S. Ct. 1970, 1978 (1994); see also
Wright v. Taylor, 79 F. App’x 829, 831 (6th Cir. 2003). In short, “[d]eliberate
indifference is the reckless disregard of a substantial risk of serious harm[.]”
Wright, 79 F. App’x at 831 (citation omitted); accord Farmer, 511 U.S. at 836-38,
114 S. Ct. at 1978-79 (equating “deliberate indifference” to the “recklessness”
standard under criminal, not civil, law).
“Where a prisoner has received some medical attention and the dispute is
over the adequacy of the treatment, federal courts are generally reluctant to second
14 

guess medical judgments and to constitutionalize claims which sound in state tort
law.” Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976). The Sixth Circuit
acknowledges that “[a] claim of inadequate medical treatment[,]” as opposed to a
claim of a complete denial of medical treatment, “may state a constitutional claim”
but cautions that such claims are generally limited to situations where “the
treatment rendered is ‘so woefully inadequate as to amount to no treatment at all.’”
Clark v. Corrs. Corp. of Am., 98 F. App’x 413, 416 (unpublished) (citing Westlake,
537 F.2d at 860-61).
3.

Application

In this case, the Court is willing to assume that Plaintiff has satisfied the
objective component by showing that Gurly’s condition was “sufficiently serious.”
Farmer, 511 U.S. at 834, 114 S. Ct. at 1977. However, Plaintiff has not
sufficiently pleaded facts concerning the subjective component of a deliberate
indifference claim. While it is true that Plaintiff alleges that the healthcare staff
“had specific knowledge of Gurly’s serious medical needs based on verbal
communication from Gurly,” (Am. Compl. ¶ 65), other than providing each
Defendant’s specific title and indicating in what capacity each is being sued,
“Plaintiff fails to attribute any specific factual allegations to any of the MDOC
Defendants individually and instead refers to all Defendants generally as a
group[,]” (MDOC Defs.’ Br. 9). Although this case involves the adequacy of
15 

medical treatment, this fact alone does not mean that Plaintiff has stated a viable
claim against nurses McGuire, Fritz, and McNamara (presumably the medical staff
who saw Gurly) or corrections officer Latta (who may or may not have been
working when Gurly became ill). Without providing specific factual allegations
illustrating how each specific MDOC Defendant violated Gurly’s Eighth
Amendment rights, Plaintiff has failed to “nudge[] the[] claims across the line from
conceivable to plausible.” Twombly, 550 U.S. at 570, 127 S. Ct. at 1974. In other
words, the allegations in Plaintiff’s Amended Complaint give rise to a possibility
that someone acted improperly in connection with Gurly’s medical treatment but
“a complaint plead[ing] facts that are ‘merely consistent with’ a defendant’s
liability . . . ‘stops short of the line between possibility and plausibility of
‘entitlement to relief.’” Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949 (quoting
Twombly, 550 U.S. at 557, 127 S. Ct. at 1966). Plaintiff’s failure to allege how any
Defendant was personally involved and deliberately indifferent means that the
Amended Complaint does not contain “factual content that allows the court to
draw the reasonable inference that the [MDOC D]efendant[s are] liable for the
misconduct alleged[.]”5 Id. at 678, 129 S. Ct. at 1950; Ridgeway v. Kentucky, 510
F. App’x 412, 413 (6th Cir. 2013) (unpublished) (per curiam) (citation omitted).

5

The Court’s findings with respect to Plaintiff’s failure to allege any
conduct tending to show that any of the MDOC Defendants violated Gurly’s
16 

The dearth of factual enhancement is particularly problematic with respect to
Defendant Klee, the GHCF Warden, who is presumably being sued in a
supervisory capacity. “Because § 1983 liability cannot be imposed under a theory
of respondeat superior, proof of personal involvement is required for a supervisor
to incur personal liability.” Miller v. Calhoun County, 408 F.3d 803, 817 n.3 (6th
Cir. 2005). “At a minimum, a § 1983 plaintiff must show that a supervisory
official at least implicitly authorized, approved or knowingly acquiesced in the
unconstitutional conduct of the offending subordinate.” Bellamy v. Bradley, 729
F.2d 416, 421 (6th Cir. 1984). Plaintiff has not alleged that Klee committed any
actual acts, nor has Plaintiff averred that Klee acquiesced in the conduct of his
employees. Cf. Iqbal, 556 U.S. at 676, 129 S. Ct at 1948 (“[A] plaintiff must plead
that each Government-official defendant, through the official’s own individual
actions, has violated the Constitution.”)
Lastly, to the extent Plaintiff alleges claims challenging the adequacy of
training and/or medical procedures pursuant to Monell v. Department of Social
Services, 436 U.S. 658, 98 S. Ct. 2018 (1978), these also fail. It is well-settled that
liability cannot arise under Monell without an underlying unconstitutional act.
Wilson v. Morgan, 477 F.3d 326, 340 (6th Cir. 2007). Although possible that one
or more of the MDOC Defendants acted in contravention to the Eighth

Eighth Amendment rights precludes the necessity of addressing the MDOC
Defendants’ arguments regarding the doctrine of qualified immunity.
17 

Amendment, the failure to tie any specific Defendant to the plausibly pled
unconstitutional act means that the Monell claim does not survive dismissal.
That Plaintiff’s Amended Complaint does not sufficiently tie any Defendant
to Gurly’s death is not the end of this Court’s analysis. This is because upon
construing the factual allegations in the light most favorable to Plaintiff, the
Amended Complaint does contain allegations plausibly suggesting that the health
care staff’s treatment of Gurly – both the nurses and the previously dismissed NonMDOC Defendants (who are either doctors or physicians assistants) – was
tantamount to deliberate indifference as opposed to being merely negligent or
grossly negligent.6 Specifically, the Amended Complaint alleges that Gurly visited
the healthcare facility on August 3, 2011, and that the “healthcare staff, without an
examination, prescribed him cholesterol medicine[.]” (Am. Compl. ¶ 39.) This
medication only exacerbated Gurly’s pain, so he once again sought medical
attention. (Id. at ¶ 40.) Although unclear when Gurly returned to the healthcare
facility for further evaluation, when he returned, “the healthcare staff and
Defendant GH[CF] failed and/or refused to properly medically treat Plaintiff                                                            
6

“[A] complaint that [medical personnel have] been negligent in diagnosing
or treating a medical condition does not state a valid claim of medical mistreatment
under the Eighth Amendment.” Williams v. Mehra, 186 F.3d 685, 691 (6th Cir.
1999); see also Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001)
(indicating that even if treatment is furnished “carelessly or inefficaciously,” such
treatment does not mean the medical provider “displayed a deliberate indifference
to the prisoner’s needs, but merely a degree of incompetence which does not rise to
the level of a constitutional violation”).
18 

Decedent but instead, told him to return to his cell and ordered” that he “stay in
bed.” (Id. at ¶ 42.) Gurly’s condition continued to deteriorate and he “wrote
several medical request forms (‘kites’) and complaints stating that his abdominal
pain had not abated and that he needed extensive medical treatment; however, the
Defendants failed and refused to provide adequate medical treatment.” (Id. at ¶
46.) In the early morning hours of August 6, 2012, GHCF staff found Gurly
deceased in his cell. (Id. at ¶ 47; Defs.’ Answer to Pl.’s Am. Compl. ¶ 47.7)
Construing these allegations as true, the conduct of the healthcare staff in
prescribing Gurly cholesterol medication without an examination on August 3,
2011 raises serious question as to the adequacy of the treatment Gurly received.
The same is true of the allegation that the healthcare staff failed to furnish any
treatment upon Gurly’s return to the clinic. That Gurly died three days after his
August 3 examination suggests that this is a case where the “treatment rendered
[was] ‘so woefully inadequate as to amount to no treatment at all.’” Clark, 98 F.
App’x at 416 (unpublished) (citing Westlake, 537 F.2d at 860-61).
The three previously dismissed Non-MDOC Defendants – Defendants
Prasad, Jindahl, and Kakan – were dismissed on the basis of Plaintiff’s failure to
allege specific conduct on their part. While dismissal on this ground is still proper,

7

In the Answer to Plaintiff’s Amended Complaint, the MDOC Defendants
indicate that Gurly was seen by medical staff on August 5, 2012. (MDOC Defs.’
Answer to Pl.’s Am. Compl. ¶ 42, ECF No. 28.)
19 

the Court sua sponte revisits its decision to dismiss Plaintiff’s Amended Complaint
against them with prejudice.8 Proper resolution of this case – whether ultimately in
favor of Defendants or Plaintiff – requires that all medical personnel involved in
Gurly’s treatment (or lack thereof) be before the Court. This is particularly true
with regard to those Defendants who had the authority to prescribe the cholesterol

8

The authority for the Court’s decision to proceed in such a fashion is set
forth in Leelanau Wine Cellars Ltd. v. Black & Red, Inc., 118 F. App’x 942 (6th
Cir. 2004) (unpublished). In that case, the Sixth Circuit held that the district court
had authority to vacate its earlier order granting partial summary judgment and an
injunction. Id. at 943-44. In so holding, the panel cited Federal Rule of Civil
Procedure 54(b), which provides, in pertinent part:
Judgment Upon Multiple Claims or Involving Multiple Parties. When
more than one claim for relief is presented in an action, … or when
multiple parties are involved, the court may direct the entry of a final
judgment as to one or more but fewer than all of the claims or parties
only upon an express determination that there is no just reason for
delay and upon an express direction for the entry of judgment. In the
absence of such determination and direction, however designated,
which adjudicates fewer than all the claims or the rights and liabilities
of fewer than all the parties shall not terminate the action as to any of
the claims or parties, and the order or other form of decision is subject
to revision at any time before the entry of judgment adjudicating all
the claims and the rights and liabilities of all the parties.
Fed. R. Civ. P. 54(b). Because the Court never entered judgment in favor of the
Non-MDOC Defendants, the Court is well within its authority to reconsider its
prior Opinion and Order. As the Sixth Circuit has observed, “District courts have
inherent power to consider 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.” Leelanau Wine Cellars, 118 F. App’x at 945 (quoting
Mallory v. Eyrich, 922 F.2d 1273, 1282 (6th Cir. 1991) (additional citations
omitted).
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medication and those who were apprised of Gurly’s symptoms but failed to
examine him.
For all of the reasons set forth above, the Court dismisses Count I of
Plaintiff’s Amended Complaint but does so without prejudice.
B.

State Law Claims (Counts II and III)
Instead of seeking outright dismissal of Counts II (“Gross Negligence”) and

III (“Acting in Concert”), the MDOC Defendants ask this Court to decline to
exercise supplemental jurisdiction because “claims raising issues of state law are
best left to a determination by the state courts, particularly in the area of prison
administration.” (MDOC Defs.’ Br. 17 (citations omitted).)
Title 28 U.S.C. § 1367 provides that “district courts may declines to exercise
supplemental jurisdiction over a claim . . . if . . . the district court has dismissed all
claims over which it has original jurisdiction . . . .” 28 U.S.C. § 1367(c)(3). In
Carlsbad Technologies, Inc. v. HIF Bio, Inc., the Supreme Court emphasized that
once a district court has dismissed all claims over which it possessed independent
jurisdiction, the decision regarding whether to exercise supplemental jurisdiction
over remaining state-law claims is “purely discretionary.” 556 U.S. 635, 639-40,
129 S. Ct. 1862, 1866-67 (2009). In deciding whether to retain jurisdiction over
state-law claims, a district court should engage in a multi-factor balancing test
considering the “values of judicial economy, convenience, fairness, and comity.”
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Gamel v. City of Cincinnati, 625 F.3d 949, 951-52 (6th Cir. 2010)
(citing Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350, 108 S. Ct. 614, 619
(1988)). Of particular consequence in this case, when a district court dismisses all
claims over which it had original jurisdiction, the balance of considerations is
likely to weigh in favor of declining to exercise supplemental jurisdiction. Gamel,
625 F.3d at 952 (citing Musson Theatrical, Inc. v. Fed. Exp. Corp., 89 F.3d 1244,
1254-1255 (6th Cir. 1996) (“When all federal claims are dismissed before trial, the
balance of considerations usually will point to dismissing the state law claims, or
remanding them to state court if the action was removed.”)).
Having dismissed the sole claim over which it had original jurisdiction
pursuant to Federal Rule of Civil Procedure 12(c), the Court believes that dismissal
of the remaining counts without prejudice is the proper course of action.
IV.

CONCLUSION AND ORDER

For the reasons stated herein, the Court concludes that Plaintiff’s Amended
Complaint fails to state an actionable § 1983 claim against the MDOC Defendants.
Consistent with its prior Opinion and Order, the Court believes that the same is
true of the allegations against the Non-MDOC Defendants. Dismissal of
Plaintiff’s Amended Complaint is therefore required. Given the adverse
consequences if the dismissal is with made with prejudice, however, the Court
modifies its July 24, 2013 Opinion and Order to vacate the portion of the Order
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dismissing Plaintiff’s Amended Complaint against the Non-MDOC Defendants
with prejudice. The Court believes that Plaintiff should be given an opportunity to
cure the pleading deficiencies by providing greater factual enhancement as to what
role each Defendant played in the underlying incident. This belief is rooted in the
Court’s opinion that “justice so requires[]” affording Plaintiff an opportunity to
amend. Fed. R. Civ. P. 15(a)(2). Because Plaintiff is already in possession of
certain medical records (the same records that allowed Plaintiff to identify the John
Doe defendants), the Court believes that amendments may be made. Should
Plaintiff choose to file a second amended complaint that comports with federal
pleading standards, Plaintiff must do so within twenty-one (21) days of receipt of
this Opinion and Order.
Accordingly,
IT IS ORDERED that the MDOC Defendants’ Motion to Dismiss is
GRANTED and that Plaintiff’s Amended Complaint is DISMISSED WITHOUT
PREJUDICE;
IT IS FURTHER ORDERED that this Court MODIFIES AND
VACATES its July 24, 2013 Opinion and Order dismissing the Non-MDOC
Defendants (Defendants Prasad, Jindahl, and Kakan) with prejudice and herein
ORDERS that these defendants are DISMISSED WITHOUT PREJUDICE;

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IT IS FURTHER ORDERED that Plaintiff has TWENTY-ONE (21)
DAYS from receipt of this Opinion and Order to FILE A SECOND AMENDED
COMPLAINT curing the deficiencies described herein.
Dated: April 1, 2014
s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE
Copies to:
Marium Merritt Ruth
52 Elm Street
River Rouge, MI 48218
A. Peter Govorchin, A.A.G.
Cori E. Barkman, A.A.G.
Carly A. Van Thomme, Esq.
Ronald W. Chapman, Esq.

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