Arthur et al v. Hepler et al
ORDER Granting in Part and Denying in Part 10 Motion to Dismiss. Signed by District Judge Victoria A. Roberts. (LVer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
DWANN ARTHUR, as Personal Representative
of the Estate of WARREN ANDERSON, Deceased
Case No. 19-11277
Hon. Victoria A. Roberts
CORRECTIONS OFFICERS NATHAN HELPER,
HAMILTON, WRIGHT, and LEVY,
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ REVISED
MOTION TO DISMISS [ECF #10]
Plaintiff Dwann Arthur (“Plaintiff”) is personal representative of the estate of Warren
Anderson, deceased (“Anderson”). Defendants are corrections officers Helper, Hamilton,
Wright, and Levy (“Defendants”). Plaintiff brings this civil rights action for damages under 42
U.S.C. §§ 1983, 1985, and 1986; the Eighth and Fourteenth Amendments to the United States
Constitution; and related state law claims, on behalf of Anderson. These claims stem from
Anderson’s health care while incarcerated.
Defendants move to dismiss Count II of Plaintiff’s complaint and claims for survivors’ losses
attached to Counts I and II.
For the following reasons, the Court GRANTS Defendant’s Motion to Dismiss in part and
DENIES it in part.
A short summary of the facts is sufficient.
Anderson was housed at Parnall Correctional Facility when he began to exhibit serious
medical symptoms, including respiratory distress, inability to walk, physical weakness, and rapid
breathing. Defendants allegedly ignored these symptoms and failed to respond to Anderson’s
cries for help despite their awareness of the severity of the situation, resulting in Anderson’s
death around April 8, 2018.
Count I of Plaintiff’s complaint is a deliberate indifference claim under 42 U.S.C. § 1983 and
the Eighth Amendment to the United States Constitution. Count II is a state-law claim for gross
negligence. Counts I and II rely on the same facts and allegations. This is the basis for
Defendants’ motion to dismiss Count II: they say Plaintiff cannot bring a claim of gross
negligence based on the same facts underlying a federal constitutional torts claim.
Plaintiff makes claims for survivor’s losses on both the federal and state claims.
Defendants also argue: (1) the Court should decline to extend supplemental jurisdiction over
the state law claims, and (2) Plaintiff cannot bring a claim attached to Counts I for survivor’s
losses such as loss of companionship and society, under 42 U.S.C. § 1983.
The Court GRANTS the Motion to Dismiss Count II and DENIES it for claims for survivor’s
losses. The issue of supplemental jurisdiction is moot.
To survive a motion to dismiss, the nonmoving party must allege enough facts to state a
claim to relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570,
127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The facts must be construed in the light most favorable
to the nonmoving party. Power & Tel. Supply Co. v. SunTrust Banks, Inc. 447 F.3d 923, 929–30
(6th Cir.2006) (quoting Bovee v. Coopers & Lybrand C.P.A., 272 F.3d 356, 360 (6th Cir. 2001)).
In light of this standard of review, Plaintiff alleges sufficient facts that the claim for
survivor’s losses attached to the federal deliberate indifference claim is plausible on its face. The
claim for gross negligence is not plausible on its face and is dismissed.
1. Plaintiff cannot base a claim of gross negligence on the same underlying facts as a
constitutional torts claim
Plaintiff alleges deliberate indifference to Anderson’s medical needs under 42 U.S.C. § 1983
in Count I, and a state-law claim for gross negligence in Count II. Plaintiff relies on the same
facts for the state-law claim and the federal claim. Defendants argue that a state-law claim for
gross negligence cannot be based on the same facts as an underlying Eighth Amendment claim,
relying on VanVorous v. Burmeister, Mich. App. 467, 687 N.W.2d 132 (2004).
Plaintiff argues that VanVorous only applies to cases that involve intentional torts such as
excessive force. Plaintiff is wrong.
VanVorous and its application to this case
In VanVorous, the plaintiff was the estate of VanVorous, deceased. Plaintiff filed federal tort
claims under § 1983 after defendant police officers shot and killed decedent. Plaintiff also filed a
related state-law gross negligence claim in federal court. Id. at 135-37. The gross negligence
claim alleged the same facts as the § 1983 claim. Id. at 139. The district court dismissed the state
law claims because the defendant had qualified immunity; the Sixth Circuit affirmed the
dismissal on appeal. VanVorous v. Burmeister, 2001 WL 1699200, at *1 (W.D. Mich. Dec. 26,
2001); VanVorous v. Burmeister, 96 Fed.Appx. 312, 314-15 (6th Cir. 2004). The plaintiff also
filed the state-law claim for gross negligence in state court. VanVorous, 687 N.W.2d at 139. The
defendants moved for summary judgment on the gross negligence claim because it relied on the
same facts as the federal excessive force claims and had no independent basis. Id. at 141. The
state trial court granted summary judgment to the defendant, and the Michigan Court of Appeals
affirmed. Id. The Court of Appeals noted that it had consistently resisted attempts to “transform
claims involving elements of intentional torts into claims of gross negligence.” Id. at 143.
The principle of law that emerged from VanVorous is that claims for gross negligence cannot
rely only on the same facts and allegations as an underlying federal claim for an intentional tort.
The Sixth Circuit adopted the Michigan Court of Appeals reasoning in VanVorous for cases
that apply Michigan law to claims for gross negligence based on the same facts as Eighth
Amendment intentional torts claims. Brent v. Wayne Cnty Dept of Human Servs., 901 F.3d 656,
701 (6th Cir. 2018) held that gross negligence claims can proceed in the same case as federal
intentional torts if an independent cause of action exists for the gross negligence claim. In Brent,
defendants breached a duty unrelated to the intentional tort claims, and the court allowed the
gross negligence claims because there was an independent statutory basis and claims relied on
different facts than the § 1983 claims. Id.; see also Bletz v. Gribble, 641 F.3d 743, 756 (6th Cir.
2011) (holding in relevant part that plaintiff’s state-law claim of gross negligence was without
merit because it relied on the same facts as the excessive force claim).
Plaintiff relies on precedent that equates deliberate indifference and gross negligence in the
context of state-official immunity; this reliance is misplaced
Plaintiff’s argument—that VanVorous only limits gross negligence claims when they are
based on the same facts as an excessive force claim—is misplaced. At issue in the cases that
Plaintiff relies on is governmental immunity, where gross negligence and deliberate indifference
to medical needs are equivalent. Defendants do not assert governmental immunity here.
This case does not have an independent basis for the gross negligence claim; the duty that
Defendants allegedly breached is the same for the federal and state claims.
The Court dismisses Plaintiff’s gross negligence claim.
2. The Michigan Wrongful Death Act applies to the § 1983 claim. Anderson’s family
can make claims for survivor’s losses
Defendants argue that § 1983 only creates a cause of action personal to the alleged victim,
and does not allow family members to file independent claims for survivor’s losses. Defendants
rely on Claybrook v. Birchwell, 199 F.3d 350, 357 (6th Cir. 2000). Plaintiff argues that the
Michigan Wrongful Death Act is the applicable standard, which does allow for survivor’s losses.
Mich. Comp. Laws § 600.2922(6)
While Defendants are correct that Claybrook holds that § 1983 only creates a personal cause
of action for the alleged victim, Claybrook applies Tennessee state law, which does not allow for
the family of the victim to collect survivor’s losses. See also Jaco v. Bloechle, 739 F.2d 239 (6th
Cir. 1984) (applying Ohio wrongful death statute with no provision for survivor’s losses).
Michigan law does provide for survivor’s losses
The Michigan Wrongful Death Act provides for “reasonable medical, hospital, funeral, and
burial expenses . . . reasonable compensation for the pain and suffering, while conscious,
undergone by the deceased . . . and damages for the loss of financial support and the loss of the
society and companionship of the deceased.” Mich. Comp. Laws § 600.2922(6).
Congress recognized that § 1983 may not be sufficient on its own to protect civil rights. 42
U.S.C. § 1988 provides that where the remedies of § 1983 are “deficient in the provisions
necessary to furnish suitable remedies and punish offenses against law,” the law of the forum
state fills the gaps if the state statute “is not inconsistent with the Constitution and laws of the
United States.” 42 U.S.C. § 1988(a).
The Sixth Circuit found that the Michigan Wrongful Death Act applies to § 1983 actions via
§ 1988. See Frontier Ins. Co. v. Blaty, 454 F.3d 590, 601 (6th Cir. 2006) (“Michigan's wrongful
death act, to repeat, authorizes an award of damages for survivors' losses of support, society, and
companionship. The fact that such damages were not awarded in the unusual circumstances of
this case does not render the act ineffective as a deterrent.”). Therefore, the Court must apply
relevant Michigan state law to Plaintiff’s claims.
Defendants cite to Valerie v. Mich. Dep’t of Corr., 2008 U.S. Dist. LEXIS 93558 (W.D.
Mich. Nov. 17, 2008) as evidence that § 1983 does not create a cause of action for survivor’s
loss even in Michigan cases. However, this case never addressed whether the Michigan
Wrongful Death Act applies to § 1983 claims. The plaintiffs in Valerie only tried to apply the
Michigan Wrongful Death Act to their claim in order to attach the possibility of punitive
damages. The Court found that punitive damages were already available through federal claims,
and so the applicability of the statute was moot. Because Plaintiff in this case argues that the
Michigan Wrongful Death Act applies on different grounds, Valerie is not instructive.
The Michigan Wrongful Death Act applies to this § 1983 action pursuant to § 1988. There is
no reason to bar Anderson’s family from seeking survivor’s losses, including the loss of society
Plaintiff alleges sufficient facts to make the success of this claim plausible on its face.
The Court GRANTS Defendants’ Motion to Dismiss the state law claim for gross negligence
and DENIES the Motion to Dismiss claims for survivor’s losses attached to the federal
deliberate indifference claim. The case will proceed on Count I in its entirety.
IT IS ORDERED.
S/ Victoria A. Roberts
Victoria A. Roberts
United States District Judge
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