Obomanu v. Warren et al

Filing 66

MEMORANDUM AND ORDER DISMISSING STATE LAW CLAIMS WITHOUT PREJUDICE ANDGRANTING IN PART AND DENYING IN PART DEFENDANTS MOTION TO DISMISS (Docs. 45, 50) AND DISMISSING CLAIRE PEI, ROBERT LACY, MOHAMMAD IRFAN, and MARY CLOSSER. Signed by District Judge Avern Cohn. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LORAIN OBOMANU, as Personal
Representative of the Estate of
SABRIE L. ALEXANDER, Deceased,
Plaintiff,
vs.

Case No. 17-11435

MILLICENT WARREN, et al.,

HON. AVERN COHN

Defendants.
_________________________________/
MEMORANDUM AND ORDER
DISMISSING STATE LAW CLAIMS WITHOUT PREJUDICE
AND
GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS
(Docs. 45, 50)
AND
DISMISSING CLAIRE PEI, ROBERT LACY, MOHAMMAD IRFAN, and MARY
CLOSSER
I. Introduction
This is a prisoner civil rights case involving a death. Plaintiff Lorain Obomanu, as
personal representative of the estate of Sabrie L. Alexander, is suing thirty-seven
individuals, two health services companies, and ten unnamed defendants, for a total of
forty-one (41) defendants.1 Plaintiff asserts a federal claim under 42 U.S.C. § 1983 for
deliberate indifference to serious medical needs and a state law claim for gross
negligence under M.C.L. § 691.1407. In broad terms, plaintiff says that defendants
failed to provide proper care for Alexander’s medical conditions which ultimately
resulted in her death. The complaint asserts eight counts, as follows:
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served.

Some of the defendants have filed answers. Other defendants have yet to be

Count I - deliberate indifference against corrections/custodial defendants
Count II - deliberate indifference against mental health service defendants
Count III - deliberate indifference against medical service defendants
Count IV - 8th Amendment cruel and unusual punishment against all defendants
Count V - supervisory liability against certain corrections/custodial defendants
Count VI - gross negligence against corrections/custodial defendants
Count VII - gross negligence against mental health service defendants
Count VIII - gross negligence against medical service defendants
Before the Court is a motion to dismiss brought by the two health care
companies, Corizon and Valitas, along with the following individuals: Claire Pei, Aryan
Taymour, Robert Lacy, Pu Qin, and Mohammad Azimi. (Doc. 45). Mohammad Irfan
and Mary Closser have joined in the motion. (Doc. 50). For the reasons that follow, the
motion will be granted in part and denied in part. Specifically,
1.

The gross negligence claims (Counts VI, VII, VIII) are DISMISSED
WITHOUT PREJUDICE as the Court declines to exercise supplemental
jurisdiction over them.

2.

Count IV is DISMISSED as duplicative of Counts I, II, and III.

3.

Pei, Lacy, Irfan, and Closser are DISMISSED.
II. Background

This case involves the death of Alexander, a 27 year old woman, while she
confined at the Women’s Huron Valley Correctional Center. Alexander was
incarcerated from April 17, 2014 until November 17, 2014, the date of her death.
Alexander suffered from a variety of medical conditions including a seizure disorder and

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mental health issues (bi-polar, anxiety, borderline personality). Alexander also had a
bladder condition and asthma. Plaintiff alleges that during Alexander’s seven month
period of incarceration, her pleas for medical attention were ignored and she was
punished for seeking attention by being placed in segregation and solitary confinement.
While plaintiff alleges several instances of improper medical care, the most significant
allegations pertain to the treatment of Alexander’s seizures. The complaint alleges that
Alexander was not given her seizure medication for the first eight days she was in
custody and missed dosages of the medication over 80 times thereafter.
The 179 paragraph complaint names the following defendants:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.

Millicent Warren, Warden of Ypsilanti MDOC WHV Facility
David Johnson, Assistant/Deputy Warden of Ypsilanti MDOC WHV Facility
S.A. Thomas, Assistant/Deputy Warden of Ypsilanti MDOC WHV Facility
Sgt. Troy Anthony Browning, Sergeant/Corrections Officer Ypsilanti
MDOC WHV Facility
Lt. Michael Nelson, Lieutenant/Corrections Officer Ypsilanti MDOC WHV
Facility
Capt. Tonya Allen, Captain, Corrections Officer Ypsilanti MDOC WHV
Facility
Kenneth Mott, Corrections Officer Ypsilanti MDOC WHV Facility
Natasha Smith, Corrections Officer Ypsilanti MDOC WHV Facility
Tricia Kincannon, Corrections Officer Ypsilanti MDOC WHV Facility
Kristin Potter, Corrections Officer Ypsilanti MDOC WHV Facility
Keona Smith, Corrections Officer Ypsilanti MDOC WHV Facility
Denise Armstrong, MS, psychologist for Ypsilanti MDOC WHV Facility
Anne Marie Hancock, MS, psychologist for the MDOC WHV Facility
Phyllis M. Wright, MS, psychologist for Ypsilanti MDOC WHV Facility
Aryan K. Taymour, PA, physician assistant for Ypsilanti MDOC WHV
Facility
Alice Kramer, PA-C, physician assistant for MDOC WHV facility
Mohammed I. Azimi, physician for Ypsilanti MDOC WHV facility
Arun Kulkarni, MD, physician for Ypsilanti MDOC WHV facility
Pu Qin, MD, physician for Ypsilanti MDOC WHV facility
Clare Pei, MD, physician for Ypsilanti MDOC WHV facility
Mohammed Irfan, MD, physician for Ypsilanti MDOC WHV facility
Mary Closser, DO, physician for Ypsilanti MDOC WHV facility
Marcia Porter, RN, registered nurse at Ypsilanti MDOC WHV facility
Crystal Fisher, RN, registered nurse at Ypsilanti MDOC WHV facility
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25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.

Shanda Holmes, RN, registered nurse at Ypsilanti MDOC WHV facility
Pennie Iott, RN, registered nurse at Ypsilanti MDOC WHV facility
Brianna Sharp, RN, registered nurse at Ypsilanti MDOC WHV facility
Bernard Gross, RN, registered nurse at Ypsilanti MDOC WHV facility
Laura McDonald, RN, registered nurse at Ypsilanti MDOC WHV facility
Shermanstine Morrow, RN, registered nurse at Ypsilanti MDOC WHV
Darron G. Patterson, LPN, licensed practical nurse at Ypsilanti MDOC
WHV facility
Sara Richter, LPN, licensed practical nurse at Ypsilanti MDOC WHV
facility
W. Miles, LPN, licensed practical nurse at Ypsilanti MDOC WHV facility
Robert Lacy, DO, physician at Ypsilanti MDOC WHV facility
Kelly M. McDonnell, RN, registered nurse at Ypsilanti MDOC WHV facility
Rosemary Novotny, RN, registered nurse at Ypsilanti MDOC WHV facility
Angel A. Izua Gbe, GBE
John Does 1-5
Jane Does 1-5
Corizon Healthcare, Inc.
Valitas Health Services, Inc.

The defendants can be categorized as follows: (1) corrections/custodial
defendants, (2) mental health service defendants, and (3) medical service defendants.
III. Supplemental Jurisdiction
As an initial matter, federal district courts have original subject-matter jurisdiction
over cases arising under federal law. 28 U.S.C. § 1331. As such, the Court has
subject-matter jurisdiction over the claims against defendants under Counts I - V. The
remaining counts, Counts VI - VIII are based on state law. Although the Court has
supplemental jurisdiction over state-law claims under 28 U.S.C. § 1367(a),2 it may
decline to exercise supplemental jurisdiction if the state-law claim “substantially
predominates over the claim or claims over which the district court has original

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28 U.S.C. § 1367 provides that “the district court shall have supplemental
jurisdiction over all other claims that are so related to the claims in the action within such
original jurisdiction that they form a part of the same case or controversy.” 28 U.S.C. §
1367(a)

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jurisdiction,” or if “there are other compelling reasons for declining jurisdiction.” Id. §
1367(c)(2), (c)(4).
Here, plaintiff’s state law claims would be more appropriately adjudicated by the
state court and adjudication in federal court would result in the undue confusion of the
jury. See § 1367(c) (1), (c)(4); Padilla v. City of Saginaw, 867 F. Supp. 1309, 1315
(E.D. Mich.1994). Therefore, the Court declines to exercise supplemental jurisdiction
over the state law claims under Counts VI - VIII.3
IV. Motion to Dismiss
A. Legal Standard
A Rule 12(b)(6) motion tests the sufficiency of a plaintiff's pleading. The Rule
requires that a complaint "contain something more . . . than . . . a statement of facts that
merely creates a suspicion [of] a legally cognizable right of action." Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007) (internal citation omitted). A "plaintiff's obligation to
provide the 'grounds' of his 'entitlement to relief' requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do."
Id. "[T]hat a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions. Threadbare recitals of all the elements of a cause of
action, supported by mere conclusory statements do not suffice." Ashcroft v. Iqbal, 556
U.S. 662; 129 S. Ct. 1937, 1949 (2009). The court is "not bound to accept as true a
legal conclusion couched as a factual allegation."
"In deciding a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), th[e] Court

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In light of this decision, it is not necessary to address defendants’ arguments in
support of dismissal of plaintiff’s gross negligence claims.
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may only consider 'the facts alleged in the pleadings, documents attached as exhibits or
incorporated by reference in the pleadings, and matters of which the [Court] may take
judicial notice.'" Murray v. Geithner, 624 F. Supp. 2d 667, 671 (E.D. Mich. 2009) (citing
2 James Wm. Moore et al., Moore's Federal Practice 12.342 (3d ed. 2000)); see also
Weiner v. Klais & Co., 108 F.3d 86, 89 (6th Cir. 1997) (holding that a document
incorporated by reference in a complaint can be introduced by a defendant if it is not
attached by plaintiff).
B. Analysis
1. Pleading a § 1983 Claim
a. Count IV
As an initial matter, as defendants point out, although plaintiff has plead separate
“deliberate indifference” claims under § 1983 and a “cruel and unusual conditions of
confinement” claim under the 8th Amendment, they are more appropriately considered a
single claim. See Wilson v. Seiter, 501 U.S. 294, 303 (1991) ((“[W]e see no significant
distinction between claims alleging inadequate medical care and those alleging
inadequate ‘conditions of confinement.’”). Thus, Count IV must be dismissed as
duplicative of Counts I, II, and III.
b. Deliberate Indifference
Regarding pleading a § 1983 deliberate indifference claim, the Eighth
Amendment's Cruel and Unusual Punishment Clause prohibits prison officials from
inflicting “unnecessary and wanton infliction of pain” upon inmates. Ivey v. Wilson, 832
F.2d 950, 954 (6th Cir. 1987) (internal citations omitted). “ ‘Deliberate indifference’ by
prison officials to an inmate's serious medical needs constitutes ‘unnecessary and

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wanton infliction of pain’ in violation of the Eight[h] Amendment's prohibition against
cruel and unusual punishment.” Miller v. Calhoun Cty., 408 F.3d 803, 812 (6th Cir.
2005) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)).
A deliberate indifference claim has an objective and a subjective component.
Comstock v. McCrary, 273 F.3d 693, 702 (6th Cir. 2001). The objective component
requires a plaintiff to allege that the medical need at issue is “ ‘sufficiently serious.’ ” Id.
at 702-03 (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). “To satisfy the
subjective component, the plaintiff must allege facts which, if true, would show that the
official being sued 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.”
Comstock, 273 F.3d at 703. However, a plaintiff does not have to show that the prison
official acted “for the very purpose of causing harm or with knowledge that harm will
result.” Farmer, 511 U.S. at 835. Rather, a plaintiff need only show that the official
“recklessly disregard[ed]” a substantial risk of serious harm. Id. at 836.
More specific to this case, courts have held that a seizure disorder constitutes a
serious medical need and providing anti-seizure medication to an inmate is necessary
to adequately respond to the need. In Parsons v. Caruso, 491 F. App'x 597 (6th Cir.
2012), the court found that withholding anti-seizure medication for two days from an
inmate with a seizure disorder is deliberate indifference to a serious medical need.
Here, there appears to be no dispute that Alexander suffered from a serious seizure
disorder, a serious medical condition, which plaintiff says was not properly treated, i.e.
defendants were deliberately indifferent.

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2. Allegations Against the Moving Defendants
Defendants argue that plaintiff has not plead plausible § 1983 claims against
them because the complaint contains very little factual allegations as their role in
Alexander’s care. Plaintiff says that defendants have cited only small portions of the
factual allegations in the complaint, taken them out of context, and mischaracterized
them. Plaintiff says that when taken as a whole and assumed as true for purposes of
the motion, the complaint contains sufficient factual allegations as to each of the moving
defendants to make out a plausible § 1983 claim against them. Each defendant will be
considered in turn below.
a. Taymour
As to Taymour, defendants cite paragraph 62 of the complaint representing to
this court that the allegations against Taymour are that he '"... noted in the decedent
medical records" that Alexander would receive medication to address the alleged
seizure disorder."' However, defendants omit most of the language of paragraph 62,
which contains the specific allegations that "On April 17, 2014, the date that the
Decedent was incarcerated, Defendant Taymour under the supervision of Defendant
Azimi failed to evaluate, prescribe or administer anti-seizure medication until April 24,
2017 (8 days later)..." and "Defendant Taymour noted in the defendants medical
records that the seizure medication would be tapered up later since decedent has gone
8 days without her seizure medication." (Doc. 1, ¶ 62 Pg. ID# 12). The complaint
further alleges that “Decedent requested the Defendants Taymour and Novotny
increase her seizure medications due to increased seizure activity. Id. at ¶ 63. ,
Complaint at paragraph 62. Additional allegations relating to Taymour appear in

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paragraphs 65 (alleging he improperly charted a medication), 68 (renewed a medication
despite lab results indicating it was not working), and 71 (failed to order regular lab tests
to determine the proper amount of medication). Based on these allegations, plaintiff
has plead a claim against Taymour for deliberate indifference.
b. Pei
As to Pei, however, the complaint is virtually silent. Other than identifying her in
paragraph 28, there are no specific factual allegations of wrongdoing by her. Plaintiff
does not address Pei at all in her response. At best, Pei is lumped in with the “all
defendants” conclusory allegations, see paragraph 134, which is insufficient to state a
claim against her. Pei must be dismissed.
c. Lacy
As to Lacy, he is mentioned in paragraph 86 of the complaint. In this paragraph,
plaintiff alleges that he and two other physicians (non-moving defendants) scheduled
Alexander for a clinic visit to examine her eye pressure as a consequence of her having
eye surgery after which she required eye drops and eye pressure measurements.
Alexander missed the appointment and it was not rescheduled and she was not given
eye drops. Lacy is also named in Counts II and VIII, but there are no specific
allegations relating to eye care - the allegations of wrongdoing relates to a failure to
treat Alexander’s seizures. Plaintiff’s response fails to mention Lacy at all. Given the
paucity of allegations against him, it cannot be said that plaintiff has alleged a claim for
deliberate indifference based on any improper eye care. The allegations are at best
that Lacey failed to schedule an eye pressure appointment and Alexander may have
been without eye drops for an unspecified period of time. These allegations simply do

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not rise to the level of deliberate indifference to a serious medical need. Lacy must be
dismissed.
d. Qin
As to Qin, the complaint at paragraph 90 alleges that Qin and another nonmoving defendant placed Alexander in the “Kent ward” on November 15, 2014 after she
requested medical care. The Kent ward is a segregated area. Qin is mentioned again
in paragraph 110 in which plaintiff alleges and Oin and two other non-moving
defendants “noted in their medical records dated November 15, 2014 that Decedent
care to Healthcare ‘with some type jerky movements, which she claims were from
medications doses too low, she claims to need a higher does of Leppra and Lamictal.”
The paragraph goes on to allege that defendants “failed and refused to provide the
necessary medications and emergency medical care.” Qin is named in Counts III and
IV.
The allegations, albeit thin, are sufficient to make out a deliberate indifference
claim against Qin. Plaintiff alleges a specific instance in which Alexander asked for
higher doses of medication and Qin and others did not provide it to her. Alexander died
two days later from a seizure. Assuming the allegations are true and viewing the
complaint as a whole, plaintiff has set forth a claim for deliberate difference against Qin
due to a failure to properly treat Alexander for her seizure condition.
e. Azimi
As to Azimi, the complaint alleges that Azimi supervised Taymour (paragraphs
68 and 71) and that Taymour, under his supervision failed to provide proper
medications on specific dates.. Azimi is mentioned again in paragraph 100 where

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plaintiff alleges that on November 16, 2014, the day before Alexander died, Azimi along
with three other non-moving defendants were the medical professionals on call and
responsible for providing Alexander with medical care. Azimi is named in Counts III and
IV which contains allegations of improper medical care and a failure to treat Alexander
on several days, including November 16, 2014.
Like Qin, the allegations against Azimi are somewhat sparse but taking the
complaint as a whole and assuming all allegations are true, plaintiff has stated a claim
for deliberate indifference against Azimi for failing to treat her seizure condition.
f. Irfan and Closser
Unlike the defendants discussed above, Ifran and Closser, who joined in the
motion, are psychiatrists. As to both of them, the complaint is nearly bare.
i. Irfan
Ifran is identified in paragraph 29. He does not appear in any substantive
allegations. He is named in Counts II and IV. Plaintiff does not address him in her
response. The failure to allege any conduct by Ifran that could amount to deliberate
indifference results in the conclusion that he must be dismissed.
ii. Closser
Regarding Closser, she appears in an identifying paragraph, 30, and is named
under Counts II and IV. She is also named in paragraph 101 as being on duty on
November 17, 2014 but there is no allegation as to what Closser did or did not do from
a medical standpoint. Under these circumstances, plaintiff has not made out a viable
claim against Closser.

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g. Corizon and Velitas
Finally, as to the corporate defendants, Corizon and Velitas, liability is premised
upon them employing the medical service defendants and therefore allegedly
responsible for the actions of their employees. Taking the complaint as a whole an din
light of the fact that it appears some of their employees remain, dismissal of these
defendants is not appropriate at this time.
VI. Conclusion
For the reasons stated above, Counts VI, VII, and VII are DISMISSED WITHOUT
PREJUDICE. Count IV is DISMISSED as duplicative of Counts I, II, and III.
Defendants’ motion is GRANTED IN PART and DENIED IN PART. Pei, Lacy, Irfan, and
Closser are DISMISSED.
SO ORDERED.
S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: September 20, 2017
Detroit, Michigan

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