Stojcevski v. County of Macomb et al

Filing 41

OPINION and ORDER Granting In Part and Denying In Part Correct Care Solutions Defendants' 30 Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6). Signed by District Judge Linda V. Parker. (RLou)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
VLADIMIR STOJCEVSKI,
Plaintiff,
Civil Case No. 17-11843
Honorable Linda V. Parker

v.
COUNTY OF MACOMB, et al.
Defendants.
___________________________/

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
CORRECT CARE SOLUTIONS DEFENDANTS’ MOTION TO DISMISS
PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6)
This lawsuit arises from Plaintiff Vladimir Stojcevski’s incarceration in the
Macomb County Jail in June 2014. Plaintiff alleges that during his incarceration,
Defendants were deliberately indifferent to his serious medical needs in violation
of his Eighth Amendment rights under 42 U.S.C. § 1983. He also alleges that
Defendants’ conduct amounted to gross negligence in violation of Michigan law.
Presently before the Court is a motion to dismiss filed pursuant to Federal Rule of
Civil Procedure 12(b)(6) by Defendant Correct Care Solutions (“CCS”) and certain
individuals employed by CCS (collectively “CCS Defendants”). The motion has
been fully briefed. Finding the facts and legal arguments sufficiently developed in
the parties’ briefs, the Court is dispensing with oral argument pursuant to Eastern
District of Michigan Local Rule 7.1(f).
1

I.

Standard for Motion to Dismiss
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
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.
2

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 is not applicable to legal conclusions,
however. 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).
Ordinarily, the court may not consider matters outside the pleadings when
deciding a Rule 12(b)(6) motion to dismiss. Weiner v. Klais & Co., Inc., 108 F.3d
86, 88 (6th Cir. 1997) (citing Hammond v. Baldwin, 866 F.2d 172, 175 (6th Cir.
1989)). A court that considers such matters must first convert the motion to
dismiss to one for summary judgment. See Fed. R. Civ. P 12(d). However,
“[w]hen a court is presented with a Rule 12(b)(6) motion, it may consider the
[c]omplaint and any exhibits attached thereto, public records, items appearing in
the record of the case and exhibits attached to [the] defendant’s motion to dismiss,
so long as they are referred to in the [c]omplaint and are central to the claims
contained therein.” Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430
(6th Cir. 2008). Thus, a court may take judicial notice of “other court
proceedings” without converting a motion to dismiss into a motion for summary
judgment. Buck v. Thomas M. Cooley Law Sch., 597 F.3d 812, 816 (6th Cir. 2010)

3

(citing Winget v. J.P. Morgan Chase Bank, N.A., 537 F.3d 565, 575 (6th Cir.
2008)).
II.

Factual and Procedural Background1
Plaintiff arrived at the Macomb County Jail on June 11, 2014. (Compl. ¶ 1.)

On intake, Plaintiff was measured as being 5’6” in height and 165 pounds in
weight. (Id. ¶ 44.) His blood pressure was 110/84, his pulse rate was 64, and his
temperature was normal. (Id.) Prior to his incarceration, Plaintiff had been
prescribed 600 mg. Neurontin TID, 2 mg. Klonopin TID, and 5/325 mg. Norco.
(Id.) Plaintiff alleges that Lawrence Sherman, M.D. (“Dr. Sherman”) chose to
prescribe a less expensive medication in lieu of Neurontin and failed to determine
the correct dosage or to prescribe a loading dose for this new medication. (Id.
¶ 57.) Dr. Sherman is the Medical Director of the Macomb County Jail and a CCS
employee. (Id. ¶ 22.) Defendant Macomb County contracted with CCS to provide
medical care and services at the jail. (Id. ¶ 19.)
Upon his arrival at the Macomb County Jail, Plaintiff was placed in a
holding cell and then transferred to the “day room” for approximately two days.
(Id.) On or about June 13, 2014, he was placed in the jail’s Detoxification Unit.
(Id.) Plaintiff remained in the unit until approximately 8:34 a.m. on June 17, 2014.

Plaintiff attaches several materials outside the pleadings in response to the CCS
Defendants’ motion to dismiss. Because it is a Rule 12(b)(6) motion, the Court
will not consider those materials.
4

1

(Id. ¶ 45.) Four hours later, he was transferred to a cell in the jail’s Mental Health
Unit. (Id.) He was moved around cells within the Mental Health Unit over the
next thirty-two hours. (Id.)
At around 9:00 p.m. on June 18, 2014, Plaintiff was moved to a “step-down”
cell in the Medical Unit, where he remained for about three days. (Id. ¶ 46.) He
stayed in two different cells during this period. (Id.) He was moved to the Mental
Health Unit on June 21, where he remained until 8:39 p.m. on June 23, 2014. (Id.
¶ 50.) Early in the evening on June 23, Plaintiff was transported to McLaren
Medical Center. (Id.) Upon his arrival at the hospital, Plaintiff was diagnosed as
suffering from the following: (a) systemic inflammatory response syndrome
criteria with possible sepsis; (b) acute peritoneal cellulitis; (c) muscular edema
secondary to infections versus inflammation of the bilateral gluteus maximus
muscle group; (d) acute encephalopathy; (e) possible rectal mucosal tear secondary
to anal trauma; (f) increased white blood cell count; (g) acute intractable rectal and
abdominal pain; (h) sacral wound; and (i) low potassium. (Id. ¶ 60.)
Prior to his hospitalization, while at the Macomb County Jail, Plaintiff had
seizures accompanied by vomiting spells and bowel incontinence from about June
11-15, 2014. (Id. ¶ 51.) Plaintiff alleges that he requested the opportunity to clean
the vomit and stool from his body, but his requests were denied. (Id. ¶ 54.) He

5

also alleges that he requested, but was denied, an examination of his lower
extremity for injury or disease. (Id.)
According to Plaintiff, several CCS Defendants “knew of the extremely
unsanitary conditions existing in [his] cell, and disregarded the serious risk of harm
caused by those conditions, knowing that such unsanitary conditions can lead to, or
contribute to, infectious processes developing or worsening to the point where
hospitalization would be necessary ….” (Id.) Specifically, Plaintiffs identifies
those defendants as LPNs Deeann Pavey, Cynthia Deview, Vicki Bertram, Dinal
Good, Sarah Breen, Dixie Debenne, Amber Barber, and Linda Parton. (Id.)
Plaintiff alleges that he, in fact, suffered physical and mental injury as a result of
being refused medical care and the ability to cleanse his body to remove the vomit
and feces on his upper and lower extremities. (Id. ¶ 58.)
Dr. Sherman instituted an Alcohol or Sedative Hypnotic Withdrawal for
Plaintiff from June 15-20, 2014. (Id. ¶¶ 4, 48.)
On June 19, 2014, Plaintiff was weighed by CCS Defendants Temittipe
Olagbaiye, RN, and Deeann Pavey, LPN. (Id. ¶ 48.) He weighed 136 pounds, or
29 pounds less than his recorded weight at intake. (Id.) Plaintiff alleges that this
weight loss was significant and posed a serious risk of harm to him, yet no action
was taken by these nurses. (Id.) On June 22, 2014, Plaintiff complained of a

6

“racing” heart rate—presumably to CCS Defendant Vicki Bertram, LPN—who
Plaintiff asserts did not contact a physician. (Id. ¶ 52.)
In his Complaint, filed June 9, 2017, Plaintiff names the County of Macomb,
certain individuals employed by Macomb County, CCS, and the following CCS
employees as Defendants: (a) Dr. Sherman; (b) RN Olagbaiye; (c) Health Services
Administrator David Art, RN; (d) Director of Nursing Monica Cueny, RN; and (e)
LPNs Pavey, Deview, Bertram, Good, Breen, Debenne, Barber, and Parton. In
response to the CCS Defendants’ motion to dismiss, Plaintiff stipulates to the
dismissal of his claims against LPNs Barber, Breen and Debenne. (Pl.’s Resp. Br.
at 6, ECF No. 39 at Pg ID 263.)
In the Complaint, Plaintiff alleges that Dr. Sherman was a supervisor and
policy maker for CCS. (Compl. ¶ 22.) Plaintiff seeks to hold CCS, Dr. Sherman,
and RNs Art and Cueny liable for maintaining unconstitutional policies and
practices for managing inmates suffering from the signs and symptoms exhibited
by Plaintiff and for failing to properly train the medical staff to provide
constitutionally sufficient medical care. (Id. ¶¶ 77-84; 91-97.) Plaintiff
specifically identifies a failure to train staff to monitor inmates’ food and water
intake and to identify dehydration and malnourishment. (Id.) Plaintiff identifies
two previous jail inmates, David Stojcevski (Plaintiff’s brother) and Jennifer

7

Myers, who suffered injuries, including death, while incarcerated at the Macomb
County Jail due to a lack of proper medical care. (See, e.g., id. ¶¶ 15, 64, 65, 116.)
Plaintiff asserts the following three counts in his Complaint:
I)

Violation of 42 U.S.C. § 1983 and the Eighth Amendment of
the United States Constitution against all Defendants;

II)

Failure to train, constitutionally deficient procedures, practices
and protocol and failure to supervise-deliberate indifference
against Defendants Macomb County, Macomb County Sheriff
Anthony Wickersham, Macomb County Jail Administrator
Michelle Sanborn, CCS, Dr. Sherman, HSA Arft, and RN
Cueny;

III)

Gross negligence, intentional, willful, and wanton conduct
against all Defendants

(ECF No. 1.)
III.

CCS Defendants’ Arguments for Dismissal & Analysis
A.

Respondeat Superior Liability in Count I

The CCS Defendants first argue that Plaintiff’s allegations against CCS in
Count I are insufficient because CCS cannot be held liable under a theory of
respondeat superior. This is correct. See Monell v. New York City Dep’t of Soc.
Servs., 436 U.S. 658, 691 (1978); Baynes v. Cleveland, 799 F.3d 600, 620 (6th Cir.
2015) (citing Monell, 436 U.S. at 694) (“It is well established that a municipal
entity may not be sued for injuries inflicted solely by its employees or agents under
§ 1983.”). Plaintiff does not argue otherwise in his response brief. CCS may be
liable under a theory that it maintained unconstitutional policies or practices or
8

failed to train its employees, causing Plaintiff’s injuries. Monell, 436 U.S. at 69091. While such a claim is stated in Count II of Plaintiff’s Complaint, it is not
stated in Count I.
Thus the Court agrees that Count I of Plaintiff’s Complaint is subject to
dismissal to the extent it is asserted against CCS.
B.

Supervisory and Municipal Liability

The CCS Defendants next argue that Plaintiff has not sufficiently alleged a
Monell claim against CCS, Dr. Sherman, or RNs Cueny and Arft or a failure-totrain or supervise claim against Dr. Sherman or the RNs. It is important to first
identify what claim or claims Plaintiff is asserting against these defendants.
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,
approved, or knowingly acquiesced in the unconstitutional conduct of
the offending [parties].”
Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (quoting Hays v. Jefferson
Cty., 668 F.2d 869, 874 (6th Cir. 1982)). The “[p]laintiff ha[s] to prove that the[
defendant] did more than play a passive role in the alleged violation or showed
mere tacit approval of the events.” Salehpour v. Univ. of Tenn., 159 F.3d 199, 206
(6th Cir. 1998); Peatross v. City of Memphis, 818 F.3d 233, 241-42 (6th Cir. 2016)
(“We have long held that supervisory liability requires some ‘active
9

unconstitutional behavior’ on the part of the supervisor. However, ‘active’
behavior does not mean ‘active’ in the sense that the supervisor must have
physically put his hands on the injured party or even physically been present at the
time of the constitutional violation.”) (internal citations omitted).
Where a supervisor also is a policymaker, care must be taken to distinguish
an individual capacity claim against the supervisor and an official-capacity or
municipal claim, as they turn on two different legal principles. See Essex v. Cty. 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).
10

Such claims do not require direct participation in or encouragement of
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.
Plaintiff alleges facts to adequately assert both theories against Dr. Sherman.
According to Plaintiff, Dr. Sherman was directly involved in his medical care
during his incarceration at the Macomb County Jail and prescribed the five-day
detoxification protocol, which Plaintiff appears to be alleging was responsible for
his rapid weight loss and other medical problems. Plaintiff also alleges that Dr.
Sherman was a supervisor and policymaker who failed to train or supervise the
medical staff despite prior similar constitutional violations by that staff.
In comparison, Plaintiff does not allege that RNs Arft or Cueny directly
participate in the alleged violation of his Eighth Amendment rights.2 In other
words, the Complaint does not contain allegations relating to their direct
involvement, encouragement, implicit authorization, approval, or knowing
If discovery reveals that these individuals were directly involved in the alleged
unconstitutional conduct, Plaintiff then can seek to add them back into this lawsuit.
11

2

acquiescence in the specific misconduct related to Plaintiff’s medical care. As
such, Plaintiff’s claims against them individually must be dismissed.
Plaintiff, however, does assert facts to establish RN Arft’s and RN Cueny’s
liability based on their failure to train the nursing staff at the jail and to develop
and implement policies, practices, and procedures that would have protected
Plaintiff’s right to adequate medical care. These allegations seek to hold RNs Arft
and Cueny (as well as Dr. Sherman, as indicated above) liable under an official
capacity claim. “An official-capacity claim against a person is essentially a claim
against [CCS].” Peatross, 818 F.3d 241. As such, the Court is granting the CCS
Defendants’ motion to dismiss RNs Arft and Cueny in their individual capacities.
C.

Individual Liability under § 1983

In a supplemental brief filed in support of its motion to dismiss, the CCS
Defendants argue that Plaintiff fails to state an Eighth Amendment deliberate
indifference claim against all of the individual defendants.
“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 v. Muskegon Cty., 625 F.3d 935, 941
(6th Cir. 2010) (quoting Blackmore v. Kalamazoo Cty., 390 F.3d 890, 895 (6th Cir.
2004) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976))). In Jones, the Sixth

12

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).
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 actions, has
13

violated the Constitution.” Iqbal, 556 U.S. at 676. The CCS Defendants contend
that Plaintiff makes only “threadbare recitals of elements of a cause of action and
conclusory statements against ‘Individual Defendants’ without naming any of
those Defendants in the 33 paragraphs of Count I.” (CCS Defs.’ Suppl. Br. at 4,
ECF No. 38 at Pg ID 246.) The Court does not agree.
Plaintiff alleges in paragraph 34 of the Complaint that the individual LPNs
(which he identifies in preceding paragraphs) had direct treatment contact with him
and were aware of his numerous medical conditions, yet failed to recognize his
malnourishment, immediate need for proper food and fluid intake, and the signs
and symptoms of his serious medical conditions.3 Plaintiff alleges later in the
Complaint that these LPNs knew of the extremely unsanitary conditions of his cell
and disregarded the serious risk of harm those conditions posed to Plaintiff. (Id.
¶ 54.)
Plaintiff claims that RN Olagbaiye and LPN Pavey weighed him on June 19,
2014, and should have been aware that he was 29 pounds lighter than when he
arrived at the jail only eight days earlier. (Compl. ¶ 48.) He alleges that this
weight loss was significant and posed a serious risk of harm to Plaintiff, but these

Plaintiff’s medical records may demonstrate otherwise (as suggested by the
citations to those records in Plaintiffs’ response brief.) Nevertheless, the Court is
not considering such extraneous evidence in deciding the CCS Defendants’ motion
to dismiss.
14
3

defendants took no action. (Id.) Plaintiff further alleges that LPN Bertram ignored
his complaints of a “racing” heart beat. (Id. ¶ 52.)
These allegations are more than “threadbare” and, the Court concludes,
sufficient at the pleading stage to adequately allege the individual defendants’
personal involvement in the denial of his Eighth Amendment rights.4
D.

Gross Negligence

The CCS Defendants 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. Because they are not governmental
employees, the CCS Defendants contend that 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 CCS
Defendants raised the same arguments when seeking dismissal of the same claim
asserted in the complaint Plaintiff filed as the personal representative of his
brother’s estate. See Op. & Order, Stojcevski v. County of Macomb, No 15-11019,
(E.D. Mich. Nov. 9, 2015), ECF No. 42 at Pg ID 910.
As it did before, the Court agrees with the CCS Defendants that Plaintiff’s
gross negligence claim against them is in fact a medical malpractice claim. Id.

4

Aside from RNs Arft and Cueny as discussed in the preceding section.
15

(citing Jones v. Corr. Med. Servs., Inc., 845 F. Supp. 2d 824, 844-46 (W.D. Mich.
2012)). The Court continues to disagree with the CCS Defendants, however, that
Michigan’s procedural requirements for filing that claim apply here. Id. (citing
Long v. Adams, 411 F. Supp. 2d 701, 705-07 (E.D. Mich. 2006)). As such, while
the Court construes Plaintiff’s gross negligence claim against the CCS Defendants
as a medical malpractice claim, it denies their motion to dismiss that claim for
failing to comply with Michigan’s procedural requirements for such claims.
IV.

Conclusion
To summarize, the Court concludes that Plaintiff fails to state a viable claim

against CCS in Count I of its Complaint. Plaintiff also does not allege facts to hold
Defendants Monica Cueny or David Arft personally liable for the asserted denial
of his Eighth Amendment rights. Thus, they are dismissed from this lawsuit to the
extent they are sued in their individual capacity. Plaintiff, however, adequately
alleges facts to state § 1983 individual liability claims against the remaining CCS
Defendants and a § 1983 Monell claim against CCS and Defendant Lawrence
Sherman.
Finally, the Court concludes that Plaintiff’s gross negligence claim should be
construed as a medical malpractice claim, but that it is not subject to dismissal.

16

Plaintiff stipulates to the dismissal of Defendants Amber Barber, Sarah
Breen, and Dixie Debenne. Thus, the Court is dismissing those individuals from
this litigation.
Accordingly,
IT IS ORDERED that the Correct Care Solutions Defendants’ Motion to
Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) is GRANTED IN
PART AND DENIED IN PART;
IT IS FURTHER ORDERED that Amber Barber, Sarah Breen, and Dixie
Debenne are DISMISSED AS PARTIES to this lawsuit, and Monica Cueny and
David Arft, in their individual capacities, are DISMISSED AS PARTIES to this
lawsuit.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: February 26, 2018
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, February 26, 2018, by electronic and/or
U.S. First Class mail.
s/ R. Loury
Case Manager

17