Vinson v. Department of Corrections, State of Michigan et al

Filing 91

ORDER Regarding 86 REPORT AND RECOMMENDATION re 66 MOTION to Dismiss filed by Arayan K. Taymour, P.A., Adrienne Neff, P.A., Corizon Corporation, Dawn L. Lybarger, N.P., Eddie Jenkins, M.D., Richard Miles, M.D., Karen M. Rhodes, D.O., Bhamini Sudhir, M.D., 65 MOTION to Dismiss Plaintiff's Amended Complaint filed by Sharon Paratchek, 69 MOTION to Dismiss Plaintiff's First Amended Complaint filed Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Antonio Vinson,
Plaintiff,
v.

Case No. 14-11130

Michigan Department of Corrections,
et al.,

Sean F. Cox
United States District Court Judge

Defendants.
______________________________/
ORDER REGARDING
OCTOBER 30, 2015 REPORT AND RECOMMENDATION
This matter is before the Court on Defendants’ objections to the magistrate judge’s
October 30, 2015 Report and Recommendation that addresses three motions to dismiss (Docket
Entry Nos. 65, 66, and 69) filed by Defendant Paratcheck, the “Corizon Defendants,” and the
“Individual State Defendants.” As set forth in more detail below, the Court shall ACCEPT IN
PART, and REJECT IN PART, the magistrate judge’s October 30, 2015 Report and
Recommendation.
BACKGROUND
Acting through counsel, Plaintiff Antonio Vinson, as Personal Representative of the
Estate of Michael P. Vinson, filed this action on March 17, 2014, asserting claims against
multiple defendants. Plaintiff’s original Complaint asserted claims against more than twenty
named Defendants and twelve unidentified “John and Jane Doe” Defendants.
In a Report and Recommendation issued by the magistrate judge on March 10, 2015, he
recommended various rulings on motions to dismiss that had been filed by: 1) the Michigan

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Department of Corrections and twelve of its employees1; and 2) Defendant Paratchek. In an
Order issued on March 30, 2015 (Docket Entry No. 50), this Court accepted in part and rejected
in part those recommendations.
The Court accepted the R&R’s recommendation that it strike/deny Defendant Paratchek’s
motion without prejudice. But the Court rejected the magistrate judge’s recommendation that
the Court sua sponte order Plaintiff to file an amended complaint with additional allegations as
to Defendant Paratchek. The Court advised that if Plaintiff desired to file an amended complaint,
he was to file a motion seeking leave to do so. (Id. at 9-10).
As to the MDOC Defendants’ Motion to Dismiss, this Court accepted in part and rejected
in part the R&R. The claims that were dismissed were dismissed without prejudice. (See R&R
at 14).
Counsel for Plaintiff filed a motion seeking leave to file an amended complaint on April
14, 2015. The magistrate judge granted Plaintiff leave to file Plaintiff’s First Amended
Complaint, although Defendants had opposed it on futility grounds. The magistrate judge
determined that Defendants’ futility arguments would best be resolved in the context of new
motions to dismiss. Plaintiff’s First Amended Complaint, which spans eighty-seven pages, was
filed on June 15, 2015. (Docket Entry No. 63).
Thereafter, Defendants Paratchek, the “Corizon Defendants”2, and the Individual State

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The Court shall refer to these Defendants (Hamblin, Faling, Royer-Thompson, Speer,
Hense, Wellman, Edwards, Hinsley, Murphy, Hunter, Campbell, and Kinder) as the “Individual
State Defendants.”
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The “Corizon Defendants” consist of Corizon Health, Inc., Richard Miles, M.D., Karen
Rhodes, D.O., Eddie Jenkins, M.D., Bhamini Sudhir, M.D., Aryan Taymour, PA., Dawn
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Defendants each filed a motion seeking to dismiss Plaintiff’s First Amended Complaint.
(Docket Entry Nos. 65, 66, and 69).
On October 30, 2015, the magistrate judge issued a fifty-two page Amended Report and
Recommendation (“the R&R”) addressing the Motions to Dismiss filed by Defendants
Paratchek, the Corizon Defendants, and the MDOC Defendants. (Docket Entry No. 86). In that
R&R, the magistrate judge made the following recommendations:
For the reasons set forth below, the undersigned RECOMMENDS that
defendants’ motions be DENIED in part and GRANTED in part. Plaintiff’s
intentional infliction of emotional distress claim (Count X) should be
DISMISSED without prejudice as to all defendants. The undersigned also
RECOMMENDS that plaintiff’s official capacity claims against the MDOC
defendants be DISMISSED. The undersigned also RECOMMENDS that all
claims against defendant Sudhir be DISMISSED. In addition, plaintiff has agreed
to dismiss the gross negligence claim against all Corizon employees and
defendant Paratchek (Count IX). The undersigned RECOMMENDS that the
motions to dismiss plaintiff’s remaining claims (Counts I, II, III, IV, V, VI, VII,
VIII, and IX) by the remaining defendants be DENIED.
(Id. at 3-4).
Pursuant to Fed. R. Civ. P. 72(b), a party objecting to the recommended disposition of a
matter by a Magistrate Judge must filed objections to the R&R within fourteen (14) days after
being served with a copy of the R&R. The R&R expressly advised the parties that:
Any objections must be labeled as “Objection No. 1,” “Objection No. 2,”
etc. Any objection must recite precisely the provision of this Report and
Recommendation to which it pertains. Not later than 14 days after service of an
objection, the opposing party may file a concise response proportionate to the
objections in length and complexity. Fed.R.Civ.P. 72(b)(2), Local Rule 72.1(d).
The response must specifically address each issue raised in the objections, in the
same order, and labeled as “Response to Objection No. 1,” “Response to
Objection No. 2,” etc. If the Court determines that any objections are without
merit, it may rule without awaiting the response.

Lybarger, NP, and Adriane Neff, PA.
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(R&R at 52).
The time for filing objections to the magistrate judge’s October 30, 2015 R&R has
expired and the docket reflects that Plaintiff has not filed any objections to it. Timely objections
were, however, filed by Defendant Paratchek (Docket Entry No. 87), the Corizon Defendants
(Docket Entry No. 88), and the Individual State Defendants (Docket Entry No. 89). Plaintiff did
not respond to any of the objections filed by Defendants.
ANALYSIS
In their objections, Defendants raise the same or similar objections to the R&R, which
are addressed below.
First, Defendants Paratchek and the Individual State Defendants all object to the
magistrate judge’s determination that Plaintiff’s First Amended Complaint has sufficiently
alleged conspiracy claims against them. They fault the magistrate judge’s analysis in several
respects. Having reviewed Plaintiff’s First Amended Complaint, the R&R’s extensive
discussion of these challenges, and the objections to the R&R, the Court agrees that Plaintiff has
sufficiently alleged the conspiracy claims that are recommended to proceed in this action.
Defendants’ various challenges will be more appropriately addressed at the summary judgment
stage of this litigation.
Second, Defendants Paratchek and the Individual State Defendants all object to the
magistrate judge’s recommendation that the Court dismiss Plaintiff’s claim for intentional
infliction of emotional distress (Count X) without prejudice, rather than with prejudice. They
ask that the Court dismiss Count X with prejudice. Plaintiff has not filed any response to those
objections.

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In the R&R, the magistrate judge concluded that Count X is “legally insufficient” and
recommended that it be dismissed. (R&R at 51). The body of the R&R discussing this Count
does not explain why this count should be dismissed without prejudice under the circumstances
presented here, but that is what the magistrate judge ultimately recommended, as to all
Defendants. (Id.).
“The grant of a 12(b)(6) motion is an adjudication on the merits, unless the district court
specifies the dismissal is without prejudice.” Craighead v. E.F. Hutton & Co., Inc., 899 F.2d
485, 495 (6th Cir. 1990). The decision to dismiss with prejudice is a “choice that lies within the
discretionary power of the district court.” Id.
This action has been pending since March 17, 2014. Plaintiff already amended his
complaint once, after the first round of motions to dismiss were filed and decided. In response to
the second round of Motions to Dismiss, wherein Count X was expressly challenged as legally
insufficient, Plaintiff did not seek leave to file an amended complaint in order to assert additional
allegations as to Count X. The Court agrees with Defendants that, under the circumstances
presented here, the dismissal of Count X should be with prejudice. The Court therefore rejects
that portion of the R&R that recommends that Count X be dismissed without prejudice.
Third, the Corizon Defendants and the Individual State Defendants object to the
magistrate judge’s recommendations as to Plaintiff’s deliberate indifference claims. Having
reviewed Plaintiff’s First Amended Complaint, the R&R’s discussion of these challenges, and
the objections to the R&R, the Court agrees that Plaintiff has sufficiently alleged the deliberate
indifference claims that are recommended to proceed in this action. Defendants’ various
challenges will be more appropriately addressed at the summary judgment stage of this litigation.

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Fourth, the Corizon Defendants object to the magistrate judge’s recommendation that the
Court deny their Motion to Dismiss as to Count VIII, Plaintiff’s claim for Monell liability.
Having reviewed Plaintiff’s First Amended Complaint, the R&R’s rather extensive analysis as to
this issue (see R&R at 30-39), and the objections to the R&R, the Court agrees that Count VIII
should not be dismissed as to Corizon at this time.
Fifth, the Individual State Defendants object to the magistrate judge’s recommendation
that the Court deny their Motion to Dismiss as to Count IX, Plaintiff’s “State Law Claim for
Gross Negligence.” In light of the limited cases addressing this situation, and the Sixth Circuit’s
observation that a showing of gross negligence for purposes of state-law immunity is “materially
similar” to a showing of deliberate indifference under the Eighth Amendment (see Quigley v.
Thai, 707 F.3d 675, 685-86 (6th Cir. 2013), this Court agrees with the magistrate judge that
Count IX should not be dismissed as to the Individual State Defendants at this time.
CONCLUSION & ORDER
For the reasons set forth above, the Court hereby ACCEPTS IN PART, and REJECTS
IN PART, the magistrate judge’s October 30, 2015 R&R. The Court REJECTS the R&R to the
extent that the Court rejects that portion of the R&R that recommends that Count X be dismissed
without prejudice. The Court ACCEPTS the R&R in all other respects.
As such, the Court ORDERS that Defendants’ Motions to Dismiss (Docket Entry Nos.
65, 66 & 69) are GRANTED IN PART and DENIED IN PART. The motions are GRANTED
to the extent that the Court ORDERS that: 1) Plaintiff’s intentional infliction of emotional
distress claim (Count X) is dismissed with prejudice as to all Defendants; 2) Plaintiff’s official
capacity claims against the Individual State Defendants are dismissed; 3) all claims asserted

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against Defendant Sudhir are dismissed; and 4) Plaintiff’s gross negligence claim (Count IX) is
dismissed as to all Corizon Defendants and Defendant Paratchek. The Motions are DENIED in
all other respects.
IT IS SO ORDERED.
S/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: January 21, 2016
I hereby certify that a copy of the foregoing document was served upon counsel of record on
January 21, 2016, by electronic and/or ordinary mail.
S/Jennifer McCoy
Case Manager

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