Stojcevski et al v. Macomb, County of et al
Filing
42
Opinion and ORDER Granting in part and Denying in part Defendant's Motions 15 and 17 MOTIONS to Dismiss Signed by District Judge Linda V. Parker. (SSch)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
VLADIMIR STOJCEVSKI, Individually
and as Personal Representative of the Estate
of DAVID STOJCEVSKI,
Plaintiff,
Civil Case No. 15-11019
Honorable Linda V. Parker
v.
COUNTY OF MACOMB, ET AL.
Defendants.
________________________________/
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTIONS TO DISMISS (ECF NOS. 15 & 17)
This lawsuit arises from the incarceration of two brothers in the Macomb
County Jail in June 2014, and the claim that they were denied necessary medical
care during their incarceration which tragically led to the death of David Stojcevski
(“David”) from acute drug withdrawal and the hospitalization of Vladimir
Stojcevski (“Vladimir”) due to symptoms allegedly resulting from Defendants’
failure to provide him with his seizure medication. Vladimir, individually and as
personal representative of David’s estate (hereafter “Plaintiff”), names forty-seven
Defendants in his Amended Complaint filed June 1, 2015, as well as unnamed
John and/or Jane Doe Defendants. The defendants fall into two groups, which the
Court will refer to as the “Macomb County Defendants” and the “Correct Care
Solutions Defendants” (hereafter “CCS Defendants”). The Macomb County
Defendants are: the County of Macomb; Sheriff Anthony M. Wickersham;
Michelle M. Sanborn; Barb Caskey; Lisa Bingham; Deputy Licavoli; Deputy M.
Murphy; Deputy Johnson; Deputy Keith Pethke; Deputy Paul Harrison; Deputy
John Talos; Deputy William Misany; Deputy Steven Marschke; Deputy Matthew
Salas; Deputy Kelly Kullman; Deputy William Horan; Deputy J. Dehate; Deputy
Campau; Deputy Kruger; Deputy Piszczek; Sergeant Patrick Johnson; and Deputy
John/Jane Does. The CCS Defendants are: Correct Care Solutions, LLC (“CCS”);
Monica Cueny; Tiffany Deluca; Kelly Mann; Chantalle Brock; Deeann Pavey;
Danyelle Nelson; Mical Bey-Shelley, Vicky Bertram, Heather Erhlich, Monica
Van Damme,1 Jaclyn Cubanski,2 Amanda Bishop, LPN; Cynthia Deview, RN;
Sarah Breen; Kelly Marie Hedtke, Psychologist; Temitope Oladokun Olagbaiye,
RN/Nurse Practitioner; Priscilla Pickett LPN; Suzanne Rychwalski LPN; Dixie
Debene; Dinal Good; Germain Ferrer, LPN; Thressa Williams; Linda Parton;
Amber Barber; Dr. Lawrence Sherman; and John/Jane Doe providers.
Presently before the Court are motions to dismiss filed by the Macomb
County Defendants and the CCS Defendants (collectively “Defendants”). The
The CCS Defendants indicate that Monica Van Damme is now known as Monica
Franks. (ECF No. 15 at Pg ID 375 n.2.)
2
The Amended Complaint identifies this defendant as “Jaclyn Cubanski.” The
CCS Defendants indicate that the correct spelling of this individual’s last name is
“Lubanski.”
1
2
motions have been fully briefed and the Court held a motion hearing on October
14, 2015. For the reasons that follow, the Court is granting in part and denying in
part Defendants’ motions.
I.
Factual and Procedural Background as to David
According to Plaintiff’s Amended Complaint, David was brought to the
Macomb County Jail from Michigan’s 39th District Court on June 11, 2014, to
serve a thirty (30) day jail sentence or pay $772.00 for failing to appear on the civil
infraction charge of careless driving. (ECF No. 9 ¶ 22.) The following
information was gleaned by “various jail personnel, as well as CCS employees or
agents” at David’s intake: (a) he weighed 195 pounds; (b) his blood pressure was
120/84, his pulse rate was 97, and his respiratory rate was 12; (c) he had been
prescribed Methadone prior to incarceration; (d) he had potential for withdrawal,
thereby resulting in a Clinical Opiate Withdrawal Scale (COWS) being initiated;
(e) his mental status was noted as “Alert orientation, Affect appropriate, Logical
thought processes, Speech Appropriate, Mood Appropriate, Activity Appropriate.”
(Id. ¶ 28.) According to Plaintiff, COWS assessments were to be completed three
times daily. (Id. ¶ 32.)
The Amended Complaint details David’s physical and mental condition over
the next fifteen days and the actions of some defendants in relation to David. The
3
Court will avoid restating those lengthy allegations here and assumes the reader’s
familiarity with the Amended Complaint.
On June 27, at approximately 5:20 p.m., unidentified Defendants found
David struggling to breathe and rushed him by ambulance to the hospital. (Id. at
71.) David’s weight was measured at 145 pounds by the emergency medical
technicians-- a fifty pound loss from sixteen days earlier at intake into the jail.
(Id.) Efforts to resuscitate David were unsuccessful, and he was pronounced dead
at the hospital at 6:55 p.m. (Id. ¶ 72.) His death certificate records the cause of his
death to be “ ‘Acute Withdrawal from Chronic Benzodiazepine, Methadone, and
Opiate Medications’ ” with the approximate interval between onset of the cause of
death and the death to be “ ‘[w]eeks.’ ” (Id. ¶ 73.) The autopsy report reflects a
final diagnosis and cause of David’s death as: “ ‘Acute Withdrawal from Chronic
Benzodiazepine, Methadone and Opiate Medications, Dehydration with
hypernatremia, and Seizure/seizure like activity.’ ” (Id. ¶ 74.)
Plaintiff alleges that Defendants’ “self-ordered 24 hour video monitoring of
David from June 17, 2014 through June 27, 2014” reflects that David’s mental and
medical health deteriorated dramatically during those ten days. (Id. ¶ 59.) This
included his loss of significant body weight. (Id.) According to Plaintiff, the video
shows David’s “excruciating pain and misery” during this period and “visibly
4
apparent symptoms of benzodiazapene withdrawal, that ultimately took his life.”
(Id. ¶¶ 61, 64.)
In the Amended Complaint, Plaintiff asserts the following causes of action
based on the above-described conduct:
(I) against all Defendants, deliberate indifference to David’s serious
medical needs in “violation of 42 U.S.C. § 1983 and the 8th and 14th
Amendments to the United States Constitution”;
(II) “denial of medical treatment for serious medical needs” in
violation of § 1983 and the Eighth and Fourteenth Amendments by
the following defendants: (a) Macomb County Sheriff Anthony M.
Wickersham; (b) the County; (c) Jail Administrator and County
employee Michelle M. Sanborn; (d) Director of Macomb County
Community Corrections and County employee Barb Caskey; (e)
Supervisor of Community Service-March within Macomb County
Community Corrections Lisa Bingham; and (f) “the individually
named Defendants who had personal contact with Plaintiff, or who
had video observance of David during his incarceration;
(III) “gross negligence, intentional, willful and wanton conduct”
against all Defendants; and,
(IV) “failure to train, inadequate policies and/or procedures, customs
and practices, customs and practices and failure to supervisedeliberate indifference” by the County, Wickersham, CCS, Sanborn,
Caskey, and Bingham.3
II.
Factual and Procedural Background as to Vladimir
The heading of Count IV lists only Macomb County and Wickersham; however,
the allegations that follow clearly reflect that the claim also is against CCS,
Sanborn, and Caskey. (ECF No. 9 ¶¶ 112-122.)
3
5
On June 11, 2014, Vladimir also was brought to the Macomb County Jail
from Michigan’s 39th District Court, although he had been sentenced to serve
thirty (30) days in jail or pay $655.00 for failing to appear on a Driving a Vehicle
While License Suspended charge. (ECF No. 1 ¶ 18.) Plaintiff’s Amended
Complaint details Vladimir’s condition upon arrival at the jail and during
subsequent days and the conduct of some defendants in relation to Vladimir.
Again, the Court assumes the reader’s familiarity with the allegations in the
Amended Complaint.
According to the Amended Complaint, Wickersham and CCS finally
decided to release Vladimir from the jail to a hospital on June 23, 2014, heeding
his “numerous and long-standing requests for medical care.” (Id. ¶ 137.) It is
alleged that upon admission to the hospital, Vladimir was suffering from:
(a) Systemic inflammatory response syndrome criteria with possible
sepsis;
(b) Acute peritoneal cellulitis;
(c) Muscular edema secondary to infection versus inflammation of the
bilateral gluteus maximus muscle group;
(d) Acute encephalopathy, non-specific etiology;
(e) Possible rectal mucosal tear secondary to anal trauma;
(f) Leukocytosis (increased white blood cell count);
(g) Acute intractable rectal and abdominal pain;
6
(h) Sacral wound; and
(i) Mild hypokalemia (low potassium).
(Id.)
The following claims are asserted in the Amended Complaint as a result of
Defendants’ alleged conduct with respect to Vladimir:
(1) against all defendants, deliberate indifference to his medical needs
in “[v]iolation of 42 U.S.C. § 1983 and the 8th and 14th Amendments
to the United States Constitution” (Count V);
(2) against CCS, Wickersham, and the County, “denial of medical
treatment for serious medical needs” in violation of the Eighth and
Fourteenth Amendments (Count VI);
(3) against all defendants, “gross negligence, intentional, willful and
wanton conduct (Count VII);
(4) against CCS, the County, and Wickersham, “failure to train,
inadequate policies and/or procedures, customs and practices and
failure to supervise- deliberate indifference” (Count VIII)4;and
(5) against all Defendants, intentional infliction of emotional distress
(Count IX).
III.
Defendants’ Arguments
In their motions to dismiss, Defendants first argue that Plaintiff has
improperly joined under Federal Rule of Civil Procedure 20 the claims related to
David’s treatment while incarcerated in the County jail and those related to
While the heading of this count refers to the County and Wickersham, only, CCS
is referred to as well in the paragraphs therein. (ECF No. 9 ¶¶ 175-187.)
4
7
Vladimir’s treatment. Defendants argue that the claims do not arise out of the
same transaction, occurrence, or series of transactions or occurrences as David and
Vladimir were “housed separately and had separate encounters with medical
personnel, jail staff, and separate outcomes to their stays.” (ECF No. 15 at Pg ID
379; ECF No. 17 Pg ID 444.) Defendants therefore ask the Court to sever the two
brothers’ claims.
Next, Defendants argue that the claims related to Vladimir and David are
subject to dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6). The
Court will not describe those arguments with more specificity at this time. This is
because, if the Court concludes that the two brothers’ claims are improperly joined,
it will not reach Defendants’ arguments with respect to those claims that it decides
to dismiss or sever. The Court, therefore, will address Defendants’ misjoinder
argument first.
IV.
Misjoinder
Rule 20 allows plaintiffs to join in one action only if:
(A) they assert any right to relief jointly, severally, or in the
alternative with respect to or arising out of the same transaction,
occurrence, or series of transactions or occurrences; and
(B) any question of law or fact common to all plaintiffs will arise in
the action.
Fed. R. Civ. P. 20(a)(1) (emphasis added). Both requirements must be satisfied
and if the plaintiffs fail to meet both, the court has the discretion to “sever the
8
misjoined plaintiffs, as long as no substantial right will be prejudiced by the
severance.” Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir. 1997) (citing Fed.
R. Civ. P. 21; Sabolsky v. Budzanoski¸457 F.2d 1245, 1249 (3d Cir. 1972)). When
misjoinder occurs, Rule 21 grants a court the authority to drop or add parties “at
any stage of the action and on such terms as are just.” Fed. R. Civ. P. 21. Rule 21
also grants the court the discretion to “sever any claim against a party.” Id.
The Supreme Court has encouraged the joinder of claims and remedies. See
United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 724 (1966). The Gibbs Court
stated: “Under the Rules, the impulse is toward entertaining the broadest possible
scope of action consistent with fairness to the parties; joinder of claims, parties and
remedies is strongly encouraged.” Id. Consistent with this policy, the requirements
prescribed by Rule 20(a) are to be liberally construed in the interest of convenience
and judicial economy. Swan v. Ray, 293 F.3d 1252, 1253 (11th Cir. 2002).
Nevertheless, a plaintiff or plaintiffs are not granted free license to join multiple
defendants into a single lawsuit where the claims against the defendants are
unrelated. See, e.g., Pruden v. SCI Camp Hill, 252 F. App’x 436, 437 (3d Cir.
2007) (per curiam); George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007); Coughlin,
130 F.3d at 1350. Nor can multiple plaintiffs pass the two-part test of Rule
20(a)(1) where each plaintiff provides a different factual background, giving rise to
9
their “mutual” cause of action. Coughlin, 130 F.3d at 1350; Abdelkarim v.
Gonzales, No. 06-14436, 2007 WL 1284924, *4-5 (E.D. Mich. Apr. 30, 2007).
The question of “[w]hether ‘a particular factual situation constitutes a single
transaction or occurrence’ is a case-specific inquiry.” State Farm Fire & Cas. Co.
v. Allied & Assoc., 860 F. Supp. 2d 432, 444-45 (E.D. Mich. 2012) (quoting
Mosley v. Gen. Motors Corp., 497 F.2d 1330, 1333 (8th Cir. 1974)) (additional
citation omitted). Some courts have adopted the “logical-relationship” test used in
the context of Federal Rule of Civil Procedure 13 to determine whether the
plaintiffs’ claims arise out of “the same series of transactions or occurrences” for
purposes of satisfying Rule 20’s requirements. See, e.g., Allied Assoc., 860 F.
Supp. 2d at 445 (citing Mosley, 497 F.2d at 1333) (citing Moore v. New York
Cotton Exch., 270 U.S. 593, 610 (1926)); In re EMC Corp., 677 F.3d 1351, 135758 (Fed. Cir. 2012). Under this test, “ ‘Rule 20 would permit all reasonably related
claims for relief by or against different parties to be tried in a single proceeding.’ ”
Allied Assoc., 860 F. Supp. 2d at 445 (citing Mosley, 497 F.3d at 1333); In re EMC
Corp., 677 F.3d at 1358. To satisfy the logical-relationship test, there must be
“substantial evidentiary overlap in the facts giving rise to the cause of action
against each defendant.” In re EMC Corp., 677 F.3d at 1358. Stated differently,
the plaintiffs’ claims “must share an aggregate of operative facts.” Id. (emphasis
10
in original) (citing New York Life Ins. Co. v. Deshotel, 142 F.3d 873, 882 (5th Cir.
1998) and Iglesias v. Mut. Life Ins. Co., 156 F.3d 237, 242 (1st Cir. 1998)).
The claims related to Vladimir and David do not “share an aggregate of
operative facts.” While it is true that they were incarcerated at the same jail during
the same time period, they were housed in separate units, experienced different
medical problems, and received different medical treatment by varying medical
providers. For the most part, their claims require entirely different proof.
Undoubtedly, the Amended Complaint alleges that Vladimir’s and David’s injuries
resulted from a jail, County, and/or CCS policy and/or practice of indifference to
the medical needs of inmates. Nevertheless, such similarity does not convert the
claims involving Vladimir and David into the same “series of transactions or
occurrences” in Rule 20(a)’s terms. See, e.g., Abdelkarim v. Gonzalez, No. 0614436, 2007 WL 1284924, at *4-5 (E.D. Mich. 2007) (citing Coughlin, 130 F.3d at
1350); see also Lover v. District of Columbia, 248 F.R.D. 319, 324 (D.D.C. 2008)
(holding that the first prong of Rule 20 is not satisfied even though the proposed
plaintiffs’ claims levied against the District of Columbia, its police chief, and
individual officers alleged similar illegal searches); Morgan v. Cohen, No. 1111780, 2011 WL 2461470, at *3 (E.D. Mich. June 16, 2011) (dismissing all but
one prisoner’s claims alleging deliberate indifference to medical needs by the
defendants‒ some of whom were employed at the same prison facility‒ reasoning
11
that the prisoners medical and retaliation claims “are personal to them and involve
distinct factual scenarios even though the applicable legal standards may be the
same.”); Harris v. Spellman, 150 F.R.D. 130, 132 (N.D. Ill. 1993) (allegedly
similar procedural errors do not convert independent prison disciplinary hearings
into same transactions or occurrences when hearings involved different incidents
of purported misconduct). The claims related to David and Vladimir-- including
whether any proven policy or practice led to their injuries‒ are dependent on facts
unique to each individual. If Rule 20(a)’s requirement were satisfied by the
allegation of a similar policy or procedure, every inmate in a particular prison
facility claiming deliberate indifference to his or her medical needs could join in a
single action against the prison’s corrections staff and/or medical providers. The
Court therefore concludes that Vladimir’s and David’s claims are misjoined.
As referenced earlier, in the event of misjoinder, Rule 21 provides a court
with two remedial options: (1) drop misjoined parties “on such terms as are just”;
or (2) sever any claims against misjoined parties so they can proceed separately.
Fed. R. Civ. P. 21. The Court finds that the more efficient option in this case is to
dismiss without prejudice Vladimir’s individual claims arising from his treatment
by Defendants. This will enable Vladimir to file a separate claim that identifies the
particular defendants that he believes are liable for his individual injuries‒ which is
not clear from the pending Amended Complaint. Vladimir will not suffer harm as
12
a result. Having reached this conclusion, the Court will not address at this time
Defendants’ Rule 12(b)(6) motions to dismiss the claims related to Vladimir.
V.
Standard Applicable to Evaluating the Claims Related to David under
Rule 12(b)(6)
A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of
the complaint. RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134
(6th Cir. 1996). Under Federal Rule of Civil Procedure 8(a)(2), a pleading must
contain a “short and plain statement of the claim showing that the pleader is
entitled to relief.” To survive a motion to dismiss, a complaint need not contain
“detailed factual allegations,” but it must contain more than “labels and
conclusions” or “a formulaic recitation of the elements of a cause of action . . .”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint does not
“suffice if it tenders ‘naked assertions’ devoid of ‘further factual enhancement.’ ”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557).
As the Supreme Court provided in Iqbal and Twombly, “[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.’ ” Id. (quoting Twombly,
550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). The
plausibility standard “does not impose a probability requirement at the pleading
13
stage; it simply calls for enough facts to raise a reasonable expectation that
discovery will reveal evidence of illegal [conduct].” Twombly, 550 U.S. at 556.
In deciding whether the plaintiff has set forth a “plausible” claim, the court
must accept the factual allegations in the complaint as true. Erickson v. Pardus,
551 U.S. 89, 94 (2007). This presumption, however, is not applicable to legal
conclusions. Iqbal, 556 U.S. at 668. Therefore, “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id. (citing Twombly, 550 U.S. at 555).
VI.
Rule 12(b)(6) Analysis
A.
Federal Claims
Plaintiff asserts § 1983 claims for the violations of David’s rights under the
Eighth and Fourteenth Amendments. “Section 1983 establishes ‘a cause of action
for deprivation under color of state law, of any rights, privileges or immunities
secured by the Constitution or laws of the United States.’ ” Jones v. Muskegon
Cnty., 625 F.3d 935, 940-41 (6th Cir. 2010) (quoting Horn v. Madison Cnty. Fiscal
Court, 22 F.3d 653, 656 (6th Cir. 1994)). A plaintiff asserting a § 1983 claim must
show: “(1) the deprivation of a right secured by the Constitution or laws of the
United States (2) caused by a person acting under color of state law.” Sigley v.
City of Parma Heights, 437 F.3d 527, 533 (6th Cir. 2006)). The Macomb County
Defendants are undoubtedly state actors. The CCS Defendants, who were
14
providing services to Macomb County Jail inmates under contract, are deemed to
be acting under color of state law for purposes of § 1983, as well. West v. Atkins,
487 U.S. 42 (1988).
With respect to his § 1983 claim alleging a violation of the Eighth
Amendment, Plaintiff alleges that Defendants were deliberately indifferent to
David’s serious medical needs. Although not clearly stated in the Amended
Complaint, but asserted by Plaintiff in response to Defendants’ pending motions,
Plaintiff’s assertion of a Fourteenth Amendment violation is premised on David’s
alleged over-detention in the Macomb County Jail. Plaintiff in fact does allege in
the Amended Complaint that the state district court issued a June 19, 2014
Amended Disposition Order “whereby David was to be released upon his
enrollment in the Community Corrections March Program.” (ECF No. 9 ¶ 66.)
Plaintiff further alleges that the County, Wickersham, Caskey, and Bingham
“fail[ed] to meet their obligation to fully implement [this] court order” and thereby
caused David’s over-detention in jail. (Id. ¶ 67.)
1.
Deliberate Indifference in General
“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.’ ” Jones, 625 F.3d at 941 (quoting Blackmore v.
Kalamazoo Cnty., 390 F.3d 890, 895 (6th Cir. 2004) (quoting Estelle v. Gamble,
15
429 U.S. 97, 104 (1976))). In Jones, the Sixth Circuit described the elements of an
Eighth Amendment “deliberate indifference” claim as follows:
A Section 1983 claim asserting “a constitutional violation for denial
of medical care has objective and subjective components.” Id. The
objective component requires the existence of a “sufficiently serious”
medical need. Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970,
128 L.Ed.2d 811 (1994) (citation omitted). Such a medical need has
been defined as one “that has been diagnosed by a physician as
mandating treatment or one that is so obvious that even a lay person
would easily recognize the necessity for a doctor's attention.”
Harrison v. Ash, 539 F.3d 510, 518 (6th Cir. 2008) (citations omitted).
The subjective element requires “an inmate to show that prison
officials have ‘a sufficiently culpable state of mind in denying medical
care.’ ” Blackmore, 390 F.3d at 895 (quoting Brown v. Bargery, 207
F.3d 863, 867 (6th Cir. 2000) ). Officials have a sufficiently culpable
state of mind where officials act with “deliberate indifference” to a
serious medical need. Farmer, 511 U.S. at 834, 114 S. Ct. 1970
(citations omitted). The Supreme Court has defined “deliberate
indifference” as being more than mere negligence but less than acting
with purpose or knowledge. Id. at 835, 114 S. Ct. 1970. Instead, the
prison official must have acted with a state of mind similar to
recklessness. Id. at 836, 114 S. Ct. 1970. Thus, to prove the required
level of culpability, a plaintiff must show that the official: (1)
subjectively knew of a risk to the inmate’s health, (2) drew the
inference that a substantial risk of harm to the inmate existed, and (3)
consciously disregarded that risk. Id. at 837, 114 S. Ct. 1970; see also
Cooper v. County of Washtenaw, 222 Fed. Appx. 459, 466 (6th Cir.
2007); Brooks v. Celeste, 39 F.3d 125, 128 (6th Cir. 1994).
Jones, 625 F.3d at 941 (brackets omitted). In the Amended Complaint, Plaintiff
asserts that Defendants were aware of the medications David was prescribed before
his incarceration in the Macomb County Jail, observed the effects of David’s
withdrawal from those medications (e.g. significant weight loss, vomiting,
16
hallucinations, and muscular pain) and knew of the serious risk to his health as a
result of not receiving those medications, and David died as a result.
2.
Personal Involvement
To establish personal liability under § 1983, the plaintiff must show that
each defendant charged “caused the deprivation of a federal right.” Kentucky v.
Graham, 473 U.S. 159, 166 (1985). Stated differently, “a plaintiff must plead that
each Government-official defendant, through the official’s own individual actions,
has violated the Constitution.” Iqbal, 556 U.S. at 676. In their motions to dismiss,
Defendants argue that Plaintiff fails to assert any allegations with respect to certain
defendants and that the conduct alleged by other defendants is insufficient to
demonstrate deliberate indifference to David’s serious medical needs.
As the Macomb County Defendants correctly point out, the Amended
Complaint is devoid of specific factual claims as to Murphy, V. Johnson, Pethke,
Talos, Misany, Marschke, Salas, Kullman, Horan, Dehate, Piszczek, Sergeant
Johnson, or Kruger. (See ECF No. 9.) These defendants are mentioned only
generically in paragraph 10, where they are identified as deputies and employees of
the County. (Id. ¶ 10.) The CCS Defendants argue, correctly, that the Amended
Complaint only generically refers to Mann, Pavey, Nelson, Van Damme, Cubanski
(i.e. Lubanski), Hedtke, Olagbaiye, Pickett, Rychwalski, Debene, Good, and Ferrer
as CCS agents or employees providing health care at the Macomb County Jail. (Id.
17
¶ 12.) The CCS Defendants do not include Bishop or Deview in this list, although
the same failings apply to them. (See id.) As Plaintiff fails to plead the actions by
these defendants that allegedly caused the deprivation of David’s constitutional
rights, the Court holds that they must be dismissed.
Defendants argue that while the Amended Complaint sets forth specific
factual allegations as to other defendants, those allegations are insufficient to give
notice of liability for deliberate indifference. The Court agrees with Defendants to
some extent. The only factual allegations in the Amended Complaint concerning
Licavoli, Harrison, and Campau reflect their aid in providing care to David. (Id.
¶ 43 (after David was found “lying on bed twitching his eyes” and seen by medical
staff, Licavoli assisted David to wheelchair where he was taken to the Detox Unit
for medical examination); ¶ 44 (Campau filed a referral to mental health noting
that David was hallucinating, after which David was placed in MH01); ¶ 48
(Harrison observed David “twitching on the floor . . . and in response” David was
seen by medical staff).)5 The allegations in the Amended Complaint also appear to
fall short of stating a deliberate indifference claim against some of CCS’ medical
providers, although the pleading at least contains specific facts describing those
providers’ direct involvement with David. For that reason, and because the Court
Although not expressly stated, the suggestion in paragraph 48 is that Harrison
summoned a medical provider after observing David “twitching on the floor.”
5
18
lacks the knowledge to know at what point David’s medical needs were
sufficiently serious, when the medical providers should have become aware of
those needs, and whether the care they provided might constitute deliberate
indifference, it will allow Plaintiff’s claims against the remaining Defendants to
proceed.
For the reasons discussed above, however, the Court is granting Defendants’
motions to dismiss as to the following individuals: Murphy, V. Johnson, Pethke,
Talos, Misany, Marschke, Salas, Kullman, Horan, Dehate, Piszczek, Sergeant
Johnson, Kruger, Mann, Pavey, Nelson, Van Damme, Cubanski, Hedtke,
Olagbaiye, Pickett, Rychwalski, Debene, Good, Ferrer, Bishop, Deview, Licavoli,
Harrison, and Campau.6
3.
Qualified Immunity
The Macomb County Defendants argue that they are entitled to qualified
immunity. Qualified immunity protects state actors sued under § 1983 from
damages liability “insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.”
The Amended Complaint reflects that David had a serious medical need to which
someone was indifferent and that over the course of several days, he exhibited
signs of distress. The Court wants to be clear that if, through discovery, Plaintiff
uncovers evidence suggesting that any dismissed individual was aware of David’s
condition during this period and was deliberately indifferent to his serious medical
needs, Plaintiff may move to re-name that individual as a party to this lawsuit at
that time.
6
19
Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quotation marks omitted). The
determination of whether a government official is entitled to qualified immunity is
a two-step inquiry: “First, viewing the facts in the light most favorable to the
plaintiff, has the plaintiff shown that a constitutional violation has occurred?
Second, was the right clearly established at the time of the violation?” Miller v.
Sanilac Cnty, 606 F.3d 240, 247 (6th Cir. 2010) (internal quotation marks and
citations omitted). The Macomb County Defendants’ argument in support of their
qualified immunity defense is as follows:
The Deputies referred issues involving each Plaintiff to the medical
and mental health staff . . . they recognized [Plaintiffs’] Eighth
Amendment right to health care and referred all complaints to medical
on multiple occasions. This is all that they could do. County staff are
not medically trained, and by summoning medical staff, they did not
violate, but rather upheld the right to medical treatment under the
Constitution.
(ECF No. 17 at Pg ID 470-71.)
The Macomb County Defendants cite no authority supporting their apparent
contention that they are entitled to immunity simply because they delegated
David’s medical care to CCS and CCS’ employees. This Court believes that
regardless of the County’s reliance on an outside contractor to provide health care
to its jail inmates, if the Macomb County Defendants were aware of a risk to
David’s health, drew the inference that a substantial risk of harm to David existed,
and consciously disregarded that risk, they too would be liable for David’s injuries
20
under § 1983. See Jones v. Muskegon Cnty., 625 F.3d 935, 941 (6th Cir. 2010)
(setting forth elements of an Eighth Amendment deliberate indifference claim).
Notably, the Macomb County Defendants’ argument is premised on their assertion
that they referred all of David’s complaints to the medical staff and that this was
“all they could do” for David. These assertions appear to be contrary to the
allegations in the Amended Complaint, however. At the very least, the factual
record has not been sufficiently developed for the Court to conclude that these
factual assertions are correct.
In short, the Court finds no merit to the Macomb County Defendants’
qualified immunity argument.
4.
Supervisory Liability
The Macomb County Defendants argue that Plaintiff’s claims against
Wickersham, Sanborn, Caskey, and Bingham must be dismissed because they were
not directly involved in the decisions regarding David’s custody, housing, or care
but are sued purely on a respondeat superior theory.
The Sixth Circuit “has held that § 1983 liability must be based on more than
respondeat superior, or the right to control employees.” Shehee v. Luttrell, 199
F.3d 295, 300 (1999). Supervisory liability attaches only where
the supervisor “either encouraged the specific incident of misconduct
or in some other way directly participated in it. At a minimum a
plaintiff must show that the official at least implicitly authorized,
21
approved, or knowingly acquiesced in the unconstitutional conduct of
the offending officers.”
Id. (quoting Hays v. Jefferson Cnty., 668 F.2d 869, 874 (6th Cir. 1982)). Where a
supervisor also is a policymaker, care must be taken to distinguish an individualcapacity claim against the supervisor and an official-capacity or municipal claim,
as they turn on two different legal principles. See Essex v. Cnty. of Livingston, 518
F. App’x 351, 355 (6th Cir. 2013).
In Essex, the court explained the distinction between these two legal
principles:
For individual liability on a failure-to-train or supervise theory, the
defendant supervisor must be found to have “ ‘encouraged the specific
incident of misconduct or in some other way directly participated in
it.’ ” Phillips v. Roane Cnty., 534 F.3d 531, 543 (6th Cir. 2008)
(quoting Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)). A
plaintiff must demonstrate that the defendant supervisor “ ‘at least
implicitly authorized, approved, or knowingly acquiesced in the
unconstitutional conduct of the offending officers.’ ” Id. (quoting
Shehee, 199 F.3d at 300). A mere failure to act will not suffice to
establish supervisory liability. Gregory v. City of Louisville, 444 F.3d
725, 751 (6th Cir. 2006).
Essex, 518 F. App’x at 355 (emphasis added). In contrast, an official capacity or
municipal claim
is a broader claim concerning the custom or policy of a municipality,
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91, 98 S. Ct. 2018,
56 L.Ed.2d 611 (1978), and thus would implicate the conduct of a
defendant supervisor insofar as he acted with deliberate indifference
in his official capacity as a policymaker. See Phillips, 534 F.3d at 543;
Campbell v. City of Springboro, 700 F.3d 779, 794 (6th Cir. 2012).
Such claims do not require direct participation in or encouragement of
22
the specific acts; rather, these claims may be premised on a failure to
act. See Heyerman v. Cnty. of Calhoun, 680 F.3d 642, 648 (6th Cir.
2012). A plaintiff must establish that the municipality, through its
policymakers, failed to train or supervise employees despite: 1)
having actual or constructive knowledge of a pattern of similar
constitutional violations by untrained employees, see Bd. of Comm’rs
of Bryan Cnty. v. Brown, 520 U.S. 397, 407-08, 117 S. Ct. 1382, 137
L.Ed.2d 626 (1997); or 2) the fact that the constitutional violation
alleged was a patently obvious and “highly predictable consequence”
of inadequate training, id. at 409, 117 S. Ct. 1382 (discussing City of
Canton v. Harris, 489 U.S. 378, 390 n. 10, 109 S. Ct. 1197, 103
L.Ed.2d 412 (1989)).
Essex, 518 F. App’x at 355-56. In the Amended Complaint, Plaintiff asserts both
theories to hold Wickersham, Sanborn, Caskey, and Bingham liable for David’s
injuries.
In Count II of the Amended Complaint, Plaintiff appears to be asserting an
individual liability claim against these defendants. Plaintiff clearly is stating an
official capacity or municipal claim in Count IV of the Amended Complaint. The
Amended Complaint, however, does not allege direct involvement,
encouragement, implicit authorization, approval, or knowing acquiescence by
Wickersham, Sanborn, Caskey, or Bingham in the specific misconduct related to
David’s healthcare. Instead, the Amended Complaint premises the liability of
these defendants on their alleged knowledge of general conditions in the jail that
posed a risk to all inmates like David. Specifically, Plaintiff alleges that CCS,
Macomb County, Wickersham, Sanborn, Caskey, and Bingham had prior
knowledge that:
23
(a) there were over-crowding conditions in the Macomb County Jail
requiring policy and practice changes that would reduce such overcrowding;
(b) the Macomb County Jail had become the new asylum for mental
health and substance abuse patients; and
(c) that many of [sic] Macomb County judges use the Macomb
County Jail as a sobering institution for the inmates, such as [David
and Vladimir].
(ECF No. 9 at ¶ 5.) Put simply, the allegations against these defendants fall more
in line with a Monell claim. As such, the Court concludes that Count II fails to
state a claim upon which relief can be granted against Wickersham, Sanborn,
Caskey, or Bingham. Plaintiff refers to CCS also in Count II. Any claim against
this entity must arise under Monell, however. See Topham v. Michigan Dept. of
Corrections, 09-10577, 2009 WL 3589527, at *3 (E.D. Mich. Oct. 26, 2009)
(citing Street v. Corr. Corp. of Am., 102 F.3d 810, 818 (6th Cir. 1996); Bass v.
Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999)).
The Court therefore is dismissing Count II of the Amended Complaint.
5.
Monell Claim
As indicated in the preceding section, in Count IV of the Amended
Complaint, Plaintiff seeks to hold the County, CCS, Wickersham, Sanborn,
Caskey, and Bingham liable under an official capacity or municipal claim.
A plaintiff asserting a § 1983 claim under Monell “must demonstrate that the
alleged federal violation occurred because of a municipal policy or custom.”
24
Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013) (citing Monell, 436 U.S. at
694); see also Miller v. Sanilac Cnty., 606 F.3d 240, 254-55 (6th Cir. 2010) (the
plaintiff must show that his constitutional rights were violated and that a policy or
custom of the county was the “moving force” behind the deprivation of his rights).
The plaintiff can make this showing by demonstrating one of the following:
(1) the existence of an illegal official policy or legislative enactment;
(2) that an official with final decision making authority ratified illegal
actions; (3) the existence of a policy of inadequate training or
supervision; or (4) the existence of a custom of tolerance or
acquiescence of federal rights violations.
Burgess, 735 F.3d at 478 (citing Thomas v. City of Chattanooga, 398 F.3d 426,
429 (6th Cir. 2005)). As indicated in the preceding section, “[a] municipality ‘may
not be sued under § 1983 for an injury inflicted solely by its employees or
agents.’ ” Id. (quoting Monell, 436 U.S. at 694). The requirements for a valid
§ 1983 claim against a municipality apply equally to private corporations that are
deemed state actors for purposes of § 1983. See Street, 102 F.3d at 817-18
(recognizing that Monell’s holding has been extended to private corporations);
Starcher v. Corr. Med. Sys., Inc., 7 F. App’x 459, 465 (6th Cir. 2001) (same).
Plaintiff sets forth at least fifteen “policies” or “procedures” in support of his
Monell claim. (See ECF No. 9 ¶ 114.) Many of those policies and procedures,
such as the failure to adhere to the standards of the “National Commission on
Correctional Health”, do not state a constitutional violation. The examples of
25
where such standards are not followed, however, constitute factual allegations that
support Plaintiff’s assertion that Macomb County Jail inmates are “not afforded
proper medical treatment, mental health treatment, and/or nursing care, specifically
as to mental health referrals, observations and adequate care for inmates
withdrawing from various medications and drugs . . ..” (Id. at 116.) Plaintiff also
alleges that CCS, the County, Wickersham, Sanborn, Caskey, and Bingham “were
aware of previous incidents” where these inmates were not afforded proper
medical care. (Id.)
The Macomb County Defendants and CCS Defendants contend that
Plaintiff’s allegations assert only generic statements with respect to a policy or
practice which are insufficient to satisfy the pleading standards set forth in
Twombly and Iqbal and fail to demonstrate a link between any policy or practice
and David’s injuries. The Court disagrees for the reasons it discussed at length in
Estate of Romain v. City of Grosse Pointe Farms, No. 14-12289, 2015 WL
1276278, at *16-17 (E.D. Mich. Mar. 18, 2015) (citing Petty v. Cnty. of Franklin,
478 F.3d 341, 347-48 (6th Cir. 2007)); see also Stack v. Karnes, 750 F.Supp.2d
892, 899 (S.D. Ohio 2010); Medley v. City of Detroit, No. 07–15046, 2008 WL
4279360, at *7–8 (E.D. Mich. Sept. 6, 2008) (relying on Petty and indicating that
“[a]ny suspicion about the type of policy or custom, if any, which resulted in the
26
actions at issue here may be examined during discovery. Its existence may be
challenged during summary judgment.”).
The Court therefore is denying Defendant’s motion to dismiss Count IV of
the Amended Complaint.
6.
Due Process Claim
When referring to the deliberate indifference of Defendants with respect to
David’s medical needs, Plaintiff cites in the Amended Complaint to both the
Eighth and Fourteenth Amendments. Because Plaintiff’s deliberate indifference
claim is covered specifically by the Eighth Amendment, it must be analyzed under
the standard appropriate to that specific provision, rather than “the rubric of
substantive due process.” Burgess, 735 F.3d at 473 (citing United States v. Lanier,
520 U.S. 259, 272 n.7 (1997) (citing Graham v. Connor, 490 U.S. 386, 394
(1989)). Defendants argue that Plaintiff therefore has inappropriately asserted a
Fourteenth Amendment due process claim and that the claim must be dismissed.
Plaintiff clarifies in response, however, that the violation of David’s due process
rights that is being asserted arises from his over-detention in the Macomb County
Jail. (See ECF No. 32 at Pg ID 693.)
In reply, the Macomb County Defendants argue that Plaintiff fails to satisfy
the pleading requirements of Federal Rule of Civil Procedure 8 to state a viable
over-detention claim, as well as any binding legal authority in support of such a
27
claim. The CCS Defendants argue that they did not have any input whatsoever in
how long David was detained and, therefore, Plaintiff fails to state a viable
Fourteenth Amendment claim against them.7 For the reasons that follow, the Court
finds merit to some of Defendants’ arguments.
The Sixth Circuit has recognized a due process claim arising from an
inmate’s incarceration beyond his or her court ordered release date. Shorts v.
Bartholomew, 255 F. App’x 46 (6th Cir. 2007). As the court explained:
. . . when a prisoner’s sentence has expired, he is entitled to release.
Whirl v. Kern, 407 F.2d 781, 791 (5th Cir. 1969) (holding that “there
is no privilege in a jailer to keep a prisoner in jail beyond the period of
his lawful sentence”). Perhaps more to the point, an incarcerated
inmate has “a liberty interest in being released at the end of his term
of imprisonment.” Schultz v. Egan, 103 F. App’x 437, 440 (2d Cir.
2004); Davis v. Hall, 375 F.3d 703, 712-13 (8th Cir. 2004). This
liberty interest is most often attributed to the Due Process Clause of
the Fourteenth Amendment.
Id. at 51 (brackets and additional citations omitted); see also McNeil v. Dir.,
Patuxent Inst., 407 U.S. 245, 246 (1972) (holding that continued incarceration after
the lawful basis for custody expires violates due process under the Fourteenth
Amendment). The District Court for the District of Columbia similarly has held
that “[o]verdetentions potentially violate the substantive component of the Due
In their reply brief, the CCS Defendants state that they had no input into how long
“Mr. Vladimir” was detained. (ECF No. 34 at Pg ID 788.) The Court assumes
they meant David as Plaintiff’s over-detention claim relates only to David. (ECF
No. 9 ¶ 66.)
7
28
Process Clause by infringing upon an individual’s basic liberty interest in being
free from incarceration absent a criminal conviction.” Barnes v. District of
Columbia, 793 F. Supp. 2d 260, 274-75 (D.D.C. 2011). “Even if an inmate’s
initial confinement was justified by a constitutionally adequate basis, that
confinement cannot constitutionally continue once that basis no longer exists.” Id.
at 725. The court recognized, however, that “temporarily retaining custody over an
inmate who is entitled to release in order to accomplish administrative tasks
incident to that release is not per se unconstitutional.” Id. Nevertheless, failing to
release inmates whose sentences have expired “within a reasonable time after the
reasons for their detentions have ended” violates their due process rights. Id.
(citing Brass v. Cnty. of Los Angeles, 328 F.3d 1192, 1200 (9th Cir. 2003);
Goldberg v. Hennepin Cnty., 417 F.3d 808, 811 (8th Cir. 2005)).
In Shorts, to evaluate the plaintiff’s over-detention claim, the Sixth Circuit
adopted the three-part “deliberate indifference” test set out by the Third Circuit in
Sample v. Diecks, 885 F.2d 1099, 1110 (1989). Shorts, 255 F. App’x 55. Pursuant
to this test, the plaintiff must show that: (1) the defendant had knowledge of the
plaintiff’s “problem” (i.e., detention beyond the plaintiff’s sentence); (2) the
defendant “either failed to act or took only ineffectual action under circumstances
indicating that his or her response to the problem was a product of deliberate
indifference to the prisoner’s plight[]”; and (3) there is “a causal connection
29
between the [defendant’s] response to the problem and the infliction of the
unjustified detention.” Id.
In the Amended Complaint, Plaintiff does not allege that any Defendant was
aware of the state district court’s June 19, 2014 Amended Disposition Order other
than Macomb County, Wickersham, Caskey, and Bingham. (ECF No. 9 ¶¶ 66,
67.) But even as to these defendants, it is significant to note that, according to
Plaintiff, the order only required David “to be released upon his enrollment in the
Community Corrections March Program . . ..” (Id. ¶ 66, emphasis added.) There
is no indication in the Amended Complaint as to whether David became enrolled in
that program so that his release was required, and if so, when. Moreover, Plaintiff
does not allege that the above-named defendants were aware of such enrollment or
any facts to suggest that even if he was enrolled and that they were aware of his
entitlement to release, that they were deliberately indifferent to a problem with the
effectuation of that order. For these reasons, the Court concludes that Plaintiff fails
to adequately plead a Fourteenth Amendment due process claim in the Amended
Complaint.
As such, the Court is granting Defendants’ motion to dismiss Plaintiff’s
§ 1983 claim to the extent it alleges violations of David’s Fourteenth Amendment
rights.
B.
State Law Claim
30
In the Amended Complaint, Plaintiff asserts only one state law claim arising
from David’s incarceration at the Macomb County Jail: Count III’s claim for
“gross negligence, intentional, willful and wanton conduct[.]”8 (ECF No. 9
¶¶ 106-111.) The Macomb County Defendants and CCS Defendants both argue
that gross negligence is not a viable claim under Michigan law, but instead is an
exception to Michigan’s Government Tort Liability Act. See Mich. Comp. Laws
§ 691.1407. The Macomb County Defendants argue that the actions alleged in the
Amended Complaint do not rise to the level of gross negligence. Citing Hamer
County of Kent, No. 1:13-cv-504, 2013 U.S. Dist. LEXIS 186512 (W.D. Mich.
Nov. 6, 2013), the CCS Defendants argue that, because they are not governmental
employees, the statute’s gross negligence exception does not apply to them and
Plaintiff’s claim is simply one for medical malpractice to which the procedural
requirements for filing suit in Michigan Compiled Laws § 600.2912b apply (and
have not been satisfied).
The Sixth Circuit’s recent decision in Kindl v. City of Berkley, ‒ F.3d ‒,
2015 WL 4899417 (Aug. 18, 2015), upholding the district court’s decision denying
summary judgment to the defendants on the plaintiff’s gross negligence claim,
leads this Court to reject the Macomb County Defendants’ argument that the
Defendants move for dismissal of an intentional infliction of emotional distress
claim in their motions; however, that claim is asserted only in relation to Vladimir.
(ECF No. 9 ¶¶ 189-99.)
8
31
conduct alleged in the Amended Complaint is insufficient to state a gross
negligence claim against them. Kindl arose from the death of a detainee in the
custody of the City of Berkeley from delirium tremens (a severe form of alcohol
withdrawal) within less than a day of being taken into custody. Id. at *1. Similar
to the allegations in the present case, the evidence in Kindl reflected that the
detainee exhibited serious conditions as a result of the withdrawal and sought the
help from her jailers. Id. at 2-4.
As the Sixth Circuit explained, “[f]or purposes of the immunity statute, gross
negligence occurs when a defendant’s conduct is ‘so reckless as to demonstrate a
substantial lack of concern for whether an injury results.’ ” Id. at 10 (quoting
Mich. Comp. Laws § 691.1407(8)(a)). The Kindl court concluded that a jury could
find that “[the d]efendants displayed ‘a substantial lack of concern for whether an
injury results’ when they failed to seek or provide any medical assistance for Kindl
despite having been alerted to her condition . . . and despite her visible symptoms
including multiple seizures, urinary incontinence, and falling off the bench.” Id.
Because the Amended Complaint contains similar allegations concerning David’s
symptoms-- albeit David’s symptoms allegedly lasted for a longer period of time‒
Kindl suggests that Plaintiff has stated a viable gross negligence claim against the
Macomb County Defendants.
32
With respect to the CCS Defendants, the relevant question is not whether the
Michigan Government Tort Liability Act applies to them. Rather, the
determinative questions are: (1) whether Plaintiff’s “gross negligence” claim is
merely one of gross negligence, not subject to Michigan’s requirements for
malpractice claims, or whether it is actually a malpractice claim, to which those
requirements apply; and (2) even if classified as a malpractice claim, whether
Michigan’s requirements for the filing of such claims apply in this federal court
action. Addressing the first question in a factually similar case, Jones v.
Correctional Medical Services, Inc., 845 F. Supp. 2d 824, 844-46 (W.D. Mich.
2012), the Honorable Paul Maloney characterized the plaintiff’s gross negligence
claim as a medical malpractice claim.9 This Court is persuaded by Judge
Maloney’s reasoning in Jones and concludes that Plaintiff’s “gross negligence”
claim against the CCS Defendants is in fact a medical malpractice claim. In Jones,
Judge Maloney also addressed the second question‒ whether Michigan’s
requirements for filing a medical malpractice claim apply in federal court. He held
that they do. With respect to this answer, however, the Court parts ways with
Judge Maloney.
Jones arose from the death of a Michigan Department of Corrections’ inmate
from viral meningoencephalitis. Id. at 831. The personal representative of the
inmate’s estate sued various defendants, including health care providers working
for an independent contractor hired by the Michigan Department of Corrections to
provide medical care to inmates. Id. at 831, 846.
9
33
The Court believes that the Honorable David Lawson reached the correct
answer to this question in Long v. Adams, 411 F. Supp. 2d 701, 705 (E.D. Mich.
2006). As Judge Lawson explains in Long, whether Michigan’s requirements for
medical malpractice claims apply to a federal court action depends on whether the
requirements are substantive or procedural rules. Id. at 705 (explaining that “Sixth
Circuit precedent firmly establishes that ‘[i]n federal diversity actions, state law
governs substantive issues and federal law governs procedural issues.’ ”) (quoting
Legg v. Chopra, 286 F.3d 286, 289 (6th Cir. 2002)) (additional citations omitted).
Michigan’s requirements for malpractice claims are procedural requirements that
did not apply to the federal action before him. Id. at 707. The Court therefore
concludes that Plaintiff’s failure to comply with Michigan’s requirements is not a
basis for dismissing Count III of the Amended Complaint against the CCS
Defendants.
At this stage, therefore, the Court is denying Defendants’ motions to dismiss
Count III of the Amended Complaint.
V.
Conclusion
In summary, the Court is GRANTING IN PART AND DENYING IN
PART the motions to dismiss filed by the CCS Defendants (ECF No. 15) and the
Macomb County Defendants (ECF No. 17). As an initial matter, the Court
concludes that Plaintiff has improperly joined the claims related to David with
34
those related to Vladimir and grants Defendants’ request to sever those claims.
Therefore, the Court is DISMISSING WITHOUT PREJUDICE Counts V-IX of
the Amended Complaint and is DISMISSING Vladimir Stojcevksi, individually
only as a party (i.e., he remains a party as Personal Representative of the Estate of
David Stojcevksi).
With respect to the claims related to David, the Court concludes that
Plaintiff fails to set forth personal involvement of the following defendants in the
misconduct alleged and thus the Court is DISMISSING THE FOLLOWING
DEFENDANTS from this action: Deputy M. Murphy, Deputy Johnson, Deputy
Keith Pethke, Deputy John Talos, Deputy William Misany, Deputy Steven
Marschke, Deputy Matthew Salas, Deputy Kelly Kullman, Deputy William Horan,
Deputy J. Dehate, Deputy Piszczek, Sergeant Patrick Johnson, Deputy Kruger,
Kelly Mann, Deeann Pavey, Danyelle Nelson, Monica Van Damme, Jaclyn
Cubanski, Kelly Marie Hedtke, Temitope Oladokun Olagbaiye, Priscilla Pickett,
Suzanne Rychwalski, Dixie, Debene, Dinal Good, Germain Ferrer, Amanda
Bishop, and Cynthia Deview.
While Plaintiff alleges facts setting forth the personal involvement of the
following defendants, the Court finds those facts insufficient to state a claim on
which relief may be granted. The Court therefore is also DISMISSING THESE
DEFENDANTS from this action: Deputy Licavoli, Deputy Paul Harrison, and
35
Deputy Campau. As noted by the Court, however, if through discovery Plaintiff
uncovers additional facts that would support his claims against these defendants,
he may move to re-name them in this action.
Finally, the Court is DISMISSING WITH PREJUDICE Count II of the
Amended Complaint.
SO ORDERED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: November 9, 2015
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, November 9, 2015, by electronic and/or
U.S. First Class mail.
s/ Richard Loury
Case Manager
36
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?