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

Filing 32

OPINION and ORDER Granting in Part and Denying In Part Defendant's 17 MOTION to Dismiss. Signed by District Judge Bernard A. Friedman. (JCur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SHARON STEIN,
Plaintiff,

Civil Action No. 17-CV-13241

vs.

HON. BERNARD A. FRIEDMAN

CORIZON HEALTH, INC., et al.,
Defendants.
_____________________________/
OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION TO DISMISS
This matter is before the Court on defendants the Michigan Department of
Corrections (“MDOC”), Warden Anthony Stewart, and Nurse Lori Tatum’s motion to dismiss
[docket entry 17]. The motion is fully briefed. Pursuant to E.D. Mich. LR 7.1(f)(2), the Court
shall decide it without a hearing.
FACTS
Decedent John Stein was incarcerated in the G. Robert Cotton Correctional Facility
in Jackson, Michigan through September 5, 2017. Compl. ¶ 19. While Stein was being discharged,
he “began complaining of chest pain and difficulty breathing.” Id. ¶ 20. He was taken to the
medical unit, where defendants Tatum and Stokley-Hamdan examined him. Id. Although Tatum
and Stokley-Hamdan “were acutely aware of Stein’s condition and that he needed emergency
medical attention,” they did not get a doctor or send him to a hospital for evaluation. Id. ¶¶ 20–
21. Rather, they sent him back to his cell, where “he collapsed and died.” Id. ¶ 21.
In October 2017, plaintiff—Stein’s mother—filed the initial complaint and then
amended it a few weeks later. The first amended complaint asserts three counts: Count I, an Eighth

Amendment claim under 42 U.S.C. § 1983; Count II, a municipal-liability claim under § 1983;
and Count III, a gross-negligence claim under the Government Tort Liability Act (“GTLA”), Mich.
Comp. Laws §§ 691.1401, et seq. In December, defendants the MDOC, Stewart, and Tatum filed
the instant motion to dismiss.
STANDARD
Fed. R. Civ. P. 12 (b)(6) states that the Court may dismiss a complaint if it fails to
“state a claim upon which relief can be granted.” The Supreme Court has held that for a complaint
to survive a motion to dismiss, it “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 (2009). A claim
is facially plausible “when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for misconduct alleged.” Id. And while Rule
12(b)(6) does not require “[d]etailed factual allegations, 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.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007).
DISCUSSION
I.

Count III—Gross Negligence
Plaintiff alleges that defendants were grossly negligent in “violat[ion of] MCLA

691.1407.” Compl. ¶ 56. Defendants argue that under Michigan law, gross negligence is not an
independent cause of action.
Defendants are correct. Michigan’s GTLA does not create a “gross negligence”
cause of action. Rather, it states that a governmental employee is qualifiedly immune from civil
liability unless a plaintiff can sufficiently show that the employee was grossly negligent. See §

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691.1407. The Michigan Court of Appeals1, previous opinions issued by this Court2, and the
United States District Court for the Western District of Michigan3 agree. Count III is dismissed.
II.

Count II—Municipal and Supervisory Liability
A municipality can be liable under § 1983 only for (1) an officially adopted or

promulgated policy, Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978); (2) a custom or
practice that is not formally adopted but is pervasive and long-standing, id.; (3) a failure to train,
supervise, discipline, or adequately screen, City of Canton v. Harris, 489 U.S. 378, 387 (1989); or
(4) a particular decision or act made by a final policymaker, City of St. Louis v. Praprotnik, 485
U.S. 112, 123 (1988).
Here, plaintiff asserts that the MDOC is liable under (1), (2), and (3). However,
the complaint is devoid of any facts showing such liability. First, regarding (1) and (2), plaintiff
alleges nothing about the MDOC’s customs and policies, only Corizon’s.4 Plaintiff appears to
believe that because Corizon contracted with the MDOC, all of its customs and policies may be
imputed to the MDOC. She cites no authority to support this proposition. Thus, plaintiff’s
allegations regarding Corizon are simply not relevant to this motion. Further, her scant references
to the MDOC’s customs and policies are wholly conclusory and precisely the kind of formulaic

1

See, e.g., Cummins v. Robinson Twp., 770 N.W.2d 421, 433 (Mich. Ct. App. 2009) (“The governmental immunity
statute does not itself create a cause of action called ‘gross negligence.’”).
2
See, e.g., Johnson v. Williams, No. 15-13856, 2017 WL 4236548, at *16 (E.D. Mich. Sept. 25, 2017) (“However,
Defendant correctly asserts that gross negligence claims no longer are independent causes of action under Michigan
law, since the Courts have repudiated contributory negligence principles and adopted comparative negligence. Rather,
gross negligence exists as a way to plead around state imposed qualified immunity, as explained above, and to establish
caps on damages. Thus, while gross negligence is an important substantive concept under Michigan law, there is no
independent cause of action for gross negligence.” (citations omitted)).
3
See, e.g., Jones v. Corr. Med. Servs., Inc., 845 F. Supp. 2d 824, 846 (W.D. Mich. 2012) (“Michigan law does not, as
Plaintiff implies, allow a claim sounding in medical malpractice to be brought as a ‘gross negligence’ claim under the
[GLTA], Mich. Comp. Laws § 691.1407. Instead, the courts appear to recognize that both governmental immunity
and the malpractice requirements can apply to a plaintiff’s claim.”) (citing Costa v. Cmty. Emergency Med. Servs.,
Inc., 716 N.W.2d 236 (Mich. Ct. App. 2006)).
4
Her own briefing concedes this. For example, in her response brief, the only evidence she points to in support of her
Monell claim against the MDOC is that “Corizon had a custom, policy, or practice of not allowing inmates to see a
treating physician, even when they are experiencing medical emergencies.” Pl.’s Resp. p. 14.

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recitation that Twombly said will not do. Finally, plaintiff does not dispute defendants’ argument
that the MDOC’s official policies promote effective medical treatment. Based on plaintiff’s
allegations, the Court cannot reasonably infer that the MDOC’s customs or policies led to Stein’s
death.
Second, regarding (3), the complaint is devoid of any fact from which the Court
could reasonably infer liability. The Court cannot reasonably infer a failure to train or supervise
based on a single incident, even if the offending officer was unsatisfactorily trained or supervised.
See Harris, 489 U.S. at 378, and City of Oklahoma City v. Tuttle, 471 U.S. 808 (1985). As plaintiff
fails to allege any other incident involving the MDOC medical staff or Tatum, the Court cannot
reasonably infer that Stein’s death resulted from the MDOC’s failure to train.
Plaintiff also asserts that Stewart is liable under the theory of supervisory liability.
In § 1983 cases, supervisory liability
must be based on more than the right to control employees. Section
1983 liability will not be imposed solely upon the basis of
respondeat superior. There must be a showing that the supervisor
encouraged the specific incident of misconduct or in some other way
directly participated in it. 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.
Turner v. City of Taylor, 412 F.3d 629, 643 (6th Cir. 2005) (quoting Bellamy v. Bradley, 729 F.2d
416, 421 (6th Cir. 1984)).
Here, plaintiff fails to allege facts showing that Stewart encouraged, authorized, or
acquiesced to the alleged deliberate indifference. In her view, his liability flows solely from his
position as Warden. But Turner squarely rejected that theory. As plaintiff’s allegations regarding
Stewart are wholly conclusory, the Court cannot reasonably infer supervisory liability.
Consequently, Count II is dismissed.

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III.

Count I—Eight Amendment Deliberate Indifference
The Sixth Circuit articulated the standard for Eighth Amendment deliberate

indifference claims:
[The Eighth Amendment] “forbids prison officials from
‘unnecessarily and wantonly inflicting pain’ on an inmate by acting
with ‘deliberate indifference’ toward [his] serious medical needs.”
Blackmore v. Kalamazoo Cty., 390 F.3d 890, 895 (6th Cir. 2004). .
. . In Wilson v. Seiter, the Supreme Court set forth a two-step
framework for determining whether certain conditions of
confinement constitute “cruel and unusual punishment” prohibited
by the Eighth Amendment. 501 U.S. 294, 298 (1991). That
framework consists of an objective and a subjective component.
Blackmore, 390 F.3d at 895. . . .
First, Plaintiff must plead facts which, if true, establish the existence
of a “sufficiently serious” medical need. Id.
Reilly v. Vadlamudi, 680 F.3d 617, 623–24 (6th Cir. 2012) (some citations edited and omitted).
Here, plaintiff satisfies the test’s objective component. She pleads that Stein
experienced “life-threatening” shortness of breath and chest pain. Compl. ¶¶ 20–21. These
symptoms were serious enough that Stein was transported to the medical unit. Id. ¶ 20. Based on
these allegations, the Court can reasonably infer a serious medical need.
Second, Plaintiff must establish the subjective element: he must
demonstrate Defendants acted with “a sufficiently culpable state of
mind in denying medical care.” Blackmore, 390 F.3d at 895. Only
“deliberate indifference” to serious medical needs will implicate the
protections of the Eighth Amendment. Deliberate indifference is
characterized by obduracy or wantonness—it cannot be predicated
on negligence, inadvertence, or good faith error. Whitley v. Albers,
475 U.S. 312, 319 (1986). For liability to attach, Defendants must
have been “aware of facts from which the inference could be drawn
that a substantial risk of serious harm exist[ed].” Farmer, 511 U.S.
at 837. Indeed, “[k]nowledge of the asserted serious needs or of
circumstances clearly indicating the existence of such needs, is
essential to a finding of deliberate indifference.” Blackmore, 390
F.3d at 896.

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In the medical context, the Supreme Court emphasized that . . . [t]o
state a cognizable claim, Plaintiff “must allege acts or omissions
sufficiently harmful to evidence deliberate indifference to serious
medical needs”—indifference that offends the “evolving standards
of decency” under the Eighth Amendment.
Vadlamudi, 680 F.3d at 624 (citation edited).
Here, plaintiff satisfies the test’s subjective component. She alleges that Tatum
was “acutely aware” both of Stein’s health “condition and that he needed emergency medical
attention,” but refused to call a doctor or send “him to a hospital for further evaluation.” Compl.
¶¶ 20–21. That is, Tatum allegedly knew perfectly well that Stein was having a heart attack but
ignored it. These allegations, taken as true, show the awareness, obduracy, and wantonness—i.e.,
the deliberate indifference—required by Vadlamudi.

This alleged callousness undoubtedly

“offends the ‘evolving standards of decency’ under the Eighth Amendment.” Vadlamudi, 680 F.3d
at 624.
Regarding defendants’ qualified-immunity argument, Tatum is not qualifiedly
immune because a reasonable jury accepting plaintiff’s allegations as true could find that Tatum
reasonably understood that her actions violated Stein’s Eighth Amendment rights. And when the
“legal question of qualified immunity turns upon which version of the facts one accepts, the jury,
not the judge, must determine liability.” McKenna v. Edgell, 617 F.3d 432, 437 (6th Cir. 2010).
Consequently, Tatum is not qualifiedly immune.
In sum, based on plaintiff’s allegations, the Court could reasonably find that Tatum
is liable on Count I. Consequently, defendants’ motion to dismiss plaintiff’s Eighth Amendment
claim against Tatum is denied.
Further, plaintiff’s Eighth Amendment claim against Stewart is dismissed because
she fails to plead any facts about him apart from supervisory liability. She does not allege that he

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was personally involved in Stein’s death, merely that he supervised the prison. Finally, defendants
argue that the Eleventh Amendment bars plaintiff’s Eighth Amendment claim against the MDOC.
Plaintiff seemingly agrees, see Pl.’s Resp. p. 10, as does the Court. Therefore, plaintiff’s Eighth
Amendment claims against the MDOC and Stewart are dismissed.
IV.

Conclusion
For the reasons stated above, Counts II and III are entirely dismissed; Count I is

dismissed only as to the MDOC and Stewart.
SO ORDERED.

Dated: March 22, 2018
Detroit, Michigan

s/Bernard A. Friedman
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served upon counsel of record and
any unrepresented parties via the Court's ECF System to their respective email or First Class
U.S. mail addresses disclosed on the Notice of Electronic Filing on March 22, 2018.
s/Johnetta M. Curry-Williams
Case Manager

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