McCormick v. Oakwood Healthcare Inc. et al

Filing 121

MEMORANDUM OPINION and ORDER Granting Plaintiff's 111 Motion to Grant Corrections, Granting Plaintiff's 115 Motion for Leave to File Index, Denying 114 Plaintiff's Motion for Order to Compel, Granting Defendants' 86 , 87 Motions for Summary Judgment, and Denying Plaintiff's 83 Motion to Amend - Signed by District Judge Judith E. Levy. (FMos)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Linda McCormick,
Plaintiff,
v.

Case No. 14-cv-12801
Judith E. Levy
United States District Judge

Oakwood Healthcare Inc., City of
Taylor, Brian Wojtowicz, Adam
Leffew, Jennifer Zuccaro, and
Steve Porta,

Mag. Judge David R. Grand

Defendants.
________________________________/
OPINION AND ORDER GRANTING PLAINTIFF’S MOTION TO
GRANT CORRECTIONS [111], GRANTING PLAINTIFF’S
MOTION FOR LEAVE TO FILE INDEX [115], DENYING
PLAINTIFF’S MOTION FOR ORDER TO COMPEL [114],
GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY
JUDGMENT [86, 87], AND DENYING PLAINTIFF’S MOTION TO
AMEND [83]
Plaintiff Linda McCormick brought suit against defendants
Oakwood Healthcare Inc. (defendant Oakwood) and the City of Taylor
and Taylor Police Officers Brian Wojtowicz, Adam Leffew, Jennifer
Zuccaro, and Steve Porta (the City Defendants), for events that took
place in April 2014 at Oakwood Heritage Hospital, where plaintiff’s

mother was hospitalized.

After discovery, plaintiff filed a motion to

amend the complaint to add new defendants (employees or former
employees of defendant Oakwood) and new claims. (Dkt. 83.) Shortly
thereafter, defendant Oakwood and the City Defendants filed motions
for summary judgment. (Dkt. 86; Dkt. 87.) Plaintiff filed responses
(Dkt. 95; Dkt. 108; see also Dkt. 110), as well as several miscellaneous
motions in support of her responses. (See Dkt. 111 (motion to grant
corrections); Dkt. 115 (motion for leave to file index); see also Dkt. 114
(motion for order to compel).) For the reasons set forth below, plaintiff’s
motions to grant corrections and for leave to file index are granted,
plaintiff’s motion for order to compel is denied, defendants’ motions for
summary judgment are granted, and plaintiff’s motion for leave to
amend is denied.
I.

Background
In early April 2014, plaintiff’s mother, Mary Griffith, underwent

elective shoulder surgery at Oakwood Heritage Hospital. (Dkt. 87-3 at
11.) According to nursing notes on April 7, 2014, taken a few days after
the surgery, while Griffith was still admitted, Griffith was “alert and
agitated” and “calling out loudly[,] oriented to self[,] but unable to
2

[f]ocus on necessary treatment.” (Dkt. 87-4 at 4.) After she “remov[ed
her] oxygen,” Griffith was given Haldol, and antipsychotic medication.
(See id.) At approximately 10:30 PM that same day, plaintiff called
Oakwood to ask how her mother was doing and “became angry and
belligerent” when told that Haldol had been administered to Griffith.
(Id.)
Plaintiff went to Oakwood and stated that, as Griffith’s power of
attorney, she wanted Griffith transferred to Henry Ford Hospital. (See
id. at 3-4.) Plaintiff spoke with Griffith’s treating physician, Dr. Wayel
Katrib, on the phone, who notified plaintiff that her mother could be
transferred the following morning.

(Id. at 3.)

Plaintiff told the

Oakwood staff that they were all fired and that she was leaving with
her mother immediately.

(Id.)

Plaintiff attempted to remove her

mother from the hospital but was prevented from doing so by an
Oakwood security guard. (Id.; Dkt. 87-5 at 2.) The police were called at
approximately 12:30 AM on April 8, 2014. (Id.)
Taylor Police Officers Brian Wojtowicz and Adam Leffew were
dispatched to the hospital, where hospital staff informed them that
plaintiff had been told it was unsafe for Griffith to leave the hospital at
3

that time, but that Griffith could be transferred in the morning. (Dkt.
87-7 at 2-3; Dkt. 87-8 at 2-3.) The officers testified that plaintiff was
irate and had attempted to remove intravenous lines from Griffith.
(Dkt. 87-7 at 3; Dkt. 87-8 at 3.) Once the officers spoke to plaintiff and
she agreed not to interfere with Griffith’s care, she was allowed to
remain at the hospital, and the officers left. (Dkt. 87-7 at 3; Dkt. 87-8
at 3.)
Plaintiff states in an affidavit that when the police arrived, she
“was not disturbing anyone,” and informed the officers that Griffith
“was being held against her will” and that Griffith herself informed the
officers that “she wanted [to be] transferred and did not want Oakwood
to treat her.”

(Dkt. 108 at 6-7 (citing Dkt. 110-8).)

According to

plaintiff, defendant officer Wojtowicz “accus[ed p]laintiff of touching the
medical equipment,” but she “denied ever touching any medical
equipment” and stated “that both the doctor and nurses had told
[p]laintiff [that Griffith] was stable and ready for discharge.” (Id.)
Approximately one hour later, hospital staff again called the
police.

(Dkt. 87-10.)

According to the 911 transcript, hospital staff

stated that plaintiff was “verbally attacking the nurses and [] need[ed]
4

to be removed.”

(Id. at 3.)

The nurses were unable to continue

Griffith’s care because of the interference. (Id.) According to plaintiff,
the “second call to the police was again for improper purposes.” (Dkt.
108 at 8.)
When the officers arrived back at the hospital shortly after the
second 9-1-1 call, hospital staff advised them that plaintiff was again
interfering with Griffith’s medical treatment, and a hospital security
guard informed plaintiff several times that she needed to leave the
premises. (Dkt. 87-7 at 4; Dkt. 87-8 at 4; Dkt. 87-9 at 4; Dkt. 87-11 at
3.) Plaintiff refused to leave. (Dkt. 87-7 at 4; Dkt. 87-8 at 4; Dkt. 87-9
at 4; Dkt. 87-11 at 3.)
Plaintiff claims that she “had not said a word to anyone,” and had
merely “returned to her mother’s bedside.”

(Dkt. 108 at 8.)

She

“professed her innocence but [officer] Wojtowicz refused to believe her,
look at the [security footage,] or investigate,” and ordered that she
“need[ed] to leave.” (Id.) Plaintiff argues this was improper because
the hospital “was private property that [officer Wojtowicz] did not own.”
(Id. at 8-9.)

Plaintiff states in her affidavit that she told officer

5

Wojtowicz, “I don’t want to argue with you, then I will leave.” (Id. at 9
(citing Dkt. 110-8; Dkt. 110-10).)
The officers instructed plaintiff to leave the hospital premises at
least three times (which plaintiff seems to agree with (Dkt. 108 at 8)),
but, according to the officers, she refused, stating that she knew her
rights and would not do so. (Dkt. 87-7 at 4; Dkt. 87-8 at 4; Dkt. 87-9 at
4; Dkt. 87-11 at 3.) Officer Wojtowicz then informed plaintiff she was
under arrest for trespassing. (Dkt. 87-7 at 4; Dkt. 87-8 at 4; Dkt. 87-9
at 4; Dkt. 87-11 at 3.)
According to the City Defendants, instead of cooperating with the
officers, plaintiff “yanked her arm back and slid to the floor in order to
prevent [herself from] being handcuffed,” and “began screaming, curled
her arms underneath her body, and refused to provide them to the
officers.” (Dkt. 87 at 14 (citing Dkt. 87-7, Dkt. 87-8; Dkt. 87-9; Dkt. 8711).)

The officers state in their affidavits that “[n]o strikes or

compliance blows were ever delivered to [p]laintiff,” and due to
plaintiff’s refusal to stand and walk, the officers had to carry plaintiff
through the hospital and eventually wheel her out in a wheelchair. (Id.)

6

She “refused” when “instructed to get in the [police] car,” so she
was “placed on her stomach in the backseat.” (Id.) Once plaintiff was
turned over for processing at the station, officer Jennifer Zuccaro
searched plaintiff. (Id.) The officers testified that plaintiff “did not
have any visible injuries and never complained of any injuries” prior to
being turned over for booking. (Id. (citing Dkt. 87-7, Dkt. 87-8; Dkt. 8711).) Plaintiff was issued a misdemeanor citation for trespassing and
interference with police authority stemming from her refusal to leave,
resisting arrest, and refusal to follow commands. (Id. at 14-15 (citing
Dkt. 87-13).)
Citing her own affidavit, plaintiff declares that officer Wojtowicz
“grabbed [her] left arm, stomped on [her] foot[,] and slammed [her] to
the ground,” and never stated that plaintiff was under arrest. (Dkt. 108
at 9 (citing Dkt. 110-8; Dkt. 110-11).) She “was then punched in the
back” and “kicked [] in the hip.” (Id.) She was “slammed into a wheel
chair,” “harshly thrown into” the back of the patrol car, “dragged out of
the car by her feet” when they reached the station, and complained that
her “back and shoulder w[ere] hurt and she needed medical attention.”

7

(Id.) According to plaintiff, her complaints of pain were met with taunts
from officers during booking. (Id. at 10.)
Plaintiff was arraigned on April 8, 2014, the same day she was
booked. (Dkt. 87-15 (citing 87-17).) She pled not guilty and was given
the opportunity to be represented by a court-appointed attorney. (Id.)
The judge set plaintiff’s bond at $2500, which was posted by Barbara
Fisher. (Id. (citing 87-18.) A settlement conference was held on April
29, 2014, and based on defendant Oakwood’s request that the matter be
dismissed, the charges were dropped. (Id. at 15-16 (citing 87-20).) The
trial court ordered that plaintiff stay out of Oakwood Heritage Hospital
except for emergency purposes. (Id.)
During this time, a social worker representing defendant
Oakwood filed a petition in Michigan Probate Court for Appointment of
a guardian and initiated a probate proceeding. (Dkt. 87-21.) Griffith’s
treating physician felt it necessary to remove her from plaintiff’s care
and to place Griffith in a nursing home for her safety, at least until
Adult Protective Services could “substantiate any abuse and/or neglect”
caused by plaintiff “at home.” (Dkt. 87-22.) The petition was granted,

8

and the probate court ordered a temporary guardian for Griffith, whose
authority remained in effect until her death. (See Dkt. 86 at 17.)
Plaintiff brought six claims in her original complaint against
defendant Oakwood and the City Defendants: Count I § 1983 for
violation of her Fourth Amendment rights; Count II false arrest; Count
III false imprisonment; Count IV intentional infliction of emotional
distress; Count V battery; and Count VI malicious prosecution. (Dkt. 1.)
Over one year after filing her original complaint, and on the eve of
the dispositive motions deadline, plaintiff filed a motion to amend,
seeking to add additional claims: Count VII intentional interference
with plaintiff’s authority as patient advocate-health care power of
attorney and Count VIII defamation. (Dkt. 83-1.) She also seeks to add
Dr. Wayel Katrib, Bethany Nalepka, and Janet Stevens, all current or
former individual employees of defendant Oakwood. (Id.)
II.

Standard
Summary judgment is proper when “the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court may
not grant summary judgment if “the evidence is such that a reasonable
9

jury could return a verdict for the nonmoving party.”

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court “views the
evidence, all facts, and any inferences that may be drawn from the facts
in the light most favorable to the nonmoving party.” Pure Tech Sys.,
Inc. v. Mt. Hawley Ins. Co., 95 F. App’x 132, 135 (6th Cir. 2004) (citing
Skousen v. Brighton High Sch., 305 F.3d 520, 526 (6th Cir. 2002)).
III.

Analysis
a. Section 1983 claim
To establish a claim pursuant to 42 U.S.C. § 1983, a plaintiff

“must identify a right secured by the United States Constitution and
the deprivation of that right by a person acting under color of state
law.” Russo v. City of Cincinnati, 953 F.2d 1036, 1042 (6th Cir. 1992).
Put differently, a plaintiff must provide sufficient evidence to show that
(1) the conduct at issue was under color of state law, (2) the conduct
caused a deprivation of a constitutional right, and (3) the deprivation
occurred without due process of law. Nishiyama v. Dickson Cty., 814
F.2d 277, 279 (6th Cir. 1987).

Plaintiff claims that all defendants,

acting under color of state law, violated the Fourth Amendment because

10

they “never had probable cause to arrest, seize, hold[,] or otherwise
restrain” her. (Dkt. 1 at 4.)
“It is a well-settled principle of constitutional jurisprudence that
an arrest without probable cause constitutes an unreasonable seizure in
violation of the Fourth Amendment.” See Ingram v. City of Columbus,
185 F.3d 579, 592-93 (6th Cir. 1999). To establish a § 1983 claim of
unlawful seizure under the Fourth Amendment, a plaintiff must prove
that the arresting officer lacked probable cause to arrest her. Voyticky
v. Village of Timberlake, Ohio, 412 F.3d 669, 677 (6th Cir. 2005); see
Wallace v. Kato, 549 U.S. 384, 388 (2007) (claims of false arrest and
false imprisonment under § 1983 overlap, with false arrest being a
“species” of false imprisonment, and “[e]very confinement of the person
is an imprisonment”) (quotation omitted).
Defendant Oakwood argues that, as a private entity, it did not act
under color of state law for purposes of a § 1983 claim. (Dkt. 86 at 1820.) Plaintiff responds that defendant Oakwood’s security personnel
are clothed with state authority to make an arrest. (Dkt. 95 at 29-30.)
But even accepting that as true, plaintiff fails to establish that any
Oakwood employee violated plaintiff’s Fourth Amendment rights.
11

Only when one acting under color of law, “by means of physical
force or show of authority, has in some way restrained the liberty of a
citizen may” the Court “conclude that a ‘seizure’ has occurred” for
purposes of a § 1983 claim. See Terry v. Ohio, 392 U.S. 1, 19 n.16
(1968).

This is measured under an objective standard—a “seizure

occurs if ‘in view of all of the circumstances surrounding the incident, a
reasonable person would have believed that he was not free to leave.’”
Brendlin v. California, 551 U.S. 249, 255 (2007) (quoting United States
v. Mendenhall, 446 U.S. 544, 554 (1980)).
Plaintiff does not argue and does not present evidence that any
employee of defendant Oakwood actively helped the police to arrest her.
Thus, plaintiff cannot establish that any employee of defendant
Oakwood seized plaintiff within the meaning of the Fourth Amendment.
Moreover, plaintiff’s argument that defendant Oakwood “falsely
imprisoned [p]laintiff because due to Oakwood’s improper conduct[,]
she had to remain in the hospital to protect her mother and over see her
care and could not leave” is meritless. No reasonable person under the
circumstances would have felt they were not free to leave.

In fact,

plaintiff states that she thought she could leave of her own free will
12

before officer Wojtowicz arrested her. (See Dkt. 108 at 14.)

Because

plaintiff has not set forth sufficient evidence to establish that any
employee of defendant Oakwood seized her, plaintiff’s § 1983 claim as to
Oakwood must be dismissed.
The City Defendants do not dispute that they seized plaintiff.
Rather, they argue that they had probable cause to arrest her and,
alternatively, that they are protected by qualified immunity. (Dkt. 87
at 16-21.) According to them, “[p]laintiff refused to comply with the
[officers’] requests and commands to leave the property,” thereby
committing “a misdemeanor in the officers’ presence” sufficient to
justify arrest. (Id.) Plaintiff responds that she did not say she would
not leave, and was never told that she was under arrest. (Dkt. 108 at
14.)

Rather, according to her, she attempted to follow officer

Wojtowicz’s command to leave but was “sucker attac[k]ed” so that she
could not comply. (Id.)
“[W]hen an officer has probable cause to believe a person
committed even a minor crime in his presence, . . . . [t]he arrest is
constitutionally reasonable.”

Virginia v. Moore, 553 U.S. 164, 171

(2008). “[A]n objective finding of probable cause is an absolute defense
13

to liability for a wrongful arrest claim.” United States v. Sease, 659
F.3d 519, 525 n.1 (6th Cir. 2011).
Even accepting all of plaintiff’s evidence as true (here, her own
affidavits), plaintiff was witnessed trespassing in the officers’ presence,
and thus probable cause existed to arrest her. Plaintiff does not dispute
that the hospital security guard, in front of the officers, told her that
she needed to leave, or that the hospital nurses told the officers that she
had been interfering with their ability to treat Griffith.

Moreover,

plaintiff herself states that officer Wojtowicz told her that she “need[ed]
to leave.” (Dkt. 108 at 8.)
Instead, she argues that officer “Wojtowicz accepted mere hearsay
of the nurses[’] false allegations without any reasonable investigation.”
(Dkt. 108 at 14.)

Even if she “professed her innocence [to officer]

Wojtowicz,” who then “refused to believe her, look at the [security
footage,] or investigate” (id. at 8), the officers objectively had probable
cause to arrest her based on the hospital staffs’ statements and the
officers’ own observations.

Faced with hospital staff allegations that

plaintiff was interfering with Griffith’s treatment and having witnessed
hospital security tell plaintiff that she needed to leave the hospital, the
14

officers objectively had probable cause to arrest plaintiff whether or not
she said she would comply. For this reason, the claim is dismissed as to
the City Defendants as well.
Relatedly, the Court notes that although plaintiff uses the term
“excessive force” at various times in her responses, she did not plead it
in her § 1983 claim. But even if she had, it would be denied for the
same reasons as plaintiff’s battery claim is denied below. See generally
Wells v. City of Dearborn Heights, 538 F. App’x 631, 641 n.3 (6th Cir.
2013) (noting that “[i]t appears that Michigan courts do indeed view
the” § 1983 excessive[ ]force and battery under Michigan tort law
“standards as equivalent”).
b. False arrest claim
To establish a claim of false arrest under Michigan law, a plaintiff
must show that the arrest was illegal or unjustified. Peterson Novelties,
Inc. v. City of Berkley, 259 Mich. App. 1, 18 (2003) (citing Lewis v.
Farmer Jack Div., Inc., 415 Mich. 212, 218 (1982)). “To prevail on a
claim of false arrest, a plaintiff must show that the arrest was not legal,
i.e. the arrest was not based on probable cause.” Id. Under Michigan
law, “probable cause to arrest exists where the facts and circumstances
15

within an officer’s knowledge and of which he has reasonably
trustworthy information are sufficient in themselves to warrant a man
of reasonable caution in the belief that an offense has been committed
or is being committed.” Hinchman v. Moore, 312 F.3d 198, 204 (6th Cir.
2002) (quoting People v. Champion, 452 Mich. 92, 115 (1996)).
For the same reasons that plaintiff’s § 1983 claim fails, plaintiff’s
state law claim of false arrest also fails. Plaintiff has not established
that any employee of defendant Oakwood seized her.

And the City

Defendants objectively had probable cause to arrest her.

Thus

plaintiff’s state claim of false arrest is dismissed.
c. False imprisonment claim
To establish a claim of false imprisonment under Michigan law, a
plaintiff must show that defendants “participated in an illegal and
unjustified arrest, and that [the defendants] lacked probable cause to do
so.” Bletz v. Gribble, 641 F.3d 743, 758 (6th Cir. 2011) (quoting Walsh
v. Taylor, 263 Mich. App. 618, 626 (2004)).

“The elements of false

imprisonment are (1) an act committed with the intention of confining
another, (2) the act directly or indirectly results in such confinement,

16

and (3) the person confined is conscious of his confinement.”

Id.

(quoting Walsh, 263 Mich. App. at 627).
For the same reasons that plaintiff’s § 1983 and false arrest
claims were dismissed, plaintiff’s false imprisonment claim must also be
dismissed. See, e.g., Wilkerson v. Warner, 545 F. App’x 413, 434 (6th
Cir. 2013) (“Because we find that [defendant] had reasonable suspicion
and probable cause to detain [plaintiff] when he did so, we affirm the
district court’s dismissal of plaintiff’s false imprisonment claim.”).
d. Intentional infliction of emotional distress claim
To establish a claim of intentional infliction of emotion distress, a
plaintiff must show “(1) ‘extreme and outrageous’ conduct; (2) intent or
recklessness; (3) causation; and (4) ‘severe emotional distress.’” Roberts
v. Auto-Owners Ins. Co., 422 Mich. 594, 602 (1985).
“It is initially for the trial judge to decide whether defendant’s
conduct might reasonably be regarded as so extreme and outrageous as
to allow recovery for intentional infliction of emotional distress.”
Sawabini v. Desenberg, 143 Mich. App. 373, 383 (1985). To establish
outrageousness, plaintiff must show facts that “to an average member
of the community” would “arouse his resentment against the actor, and
17

lead him to exclaim, ‘Outrageous!’”

See Roberts, 422 Mich. at 603.

Plaintiff must specify the disputed outrageous conduct. Mino v. Clio
Sch. Dist., 255 Mich. App. 60, 80 (2003).
The outrageous conduct plaintiff describes in her responses is that
“[a] person,” Griffith, “was kidnapped and killed all because of all
[d]efendant[s’] willful lies.”

(Dkt. 108 at 26.)

She argues that

defendants “torture[d] . . . her mother,” and that she “had to endure
seeing her mother mistreated and slowly killed for [eleven] months.”
(Id.) According to plaintiff, it “is extreme and outrageous and shocking
that a[n] entity could kidnap a person, drug them with severe psych
drugs [Griffith] had never had before, for the improper purpose of
incapacitating her to ensure a[n] unfavorable report from a [guardian
ad litem].” (Id.)
As to the City Defendants, plaintiff has not set forth sufficient
evidence to show that they were responsible for the conduct that
allegedly caused her severe emotional harm. The evidence does not in
any way show that the officers tortured Griffith, seized her, or
administered any drugs to her. Separately, she argues that she was
“falsely arrested” and “laid in jail not knowing if her mother was dead
18

or alive” (Dkt. 95 at 31-32), but because the officers were justified in
arresting her, that is not sufficient conduct to be considered extreme
and outrageous.
As to defendant Oakwood, plaintiff does not set forth sufficient
evidence to support what she perceived as kidnapping or torture for
what she argues was the purposeful interference with her Power of
Attorney.

Plaintiff attaches many exhibits to her responses from

Griffith’s medical records. But she fails to articulate how any of them
support

her

allegations.

Because

plaintiff

fails

to

establish

outrageousness as to any defendant, her IIED claim is dismissed.
e. Battery claim
To establish a claim of battery under Michigan law, a plaintiff
must show a “wilful [sic] and harmful or offensive touching of another
person which results from an act intended to cause such a contact.”
VanVorous v. Burmeister, 262 Mich. App. 467, 482-83 (2004) (quotation
omitted). Touching is an essential element of the tort. See Kolley v.
Adult Protective Servs., 786 F. Supp. 2d 1277, 1297 (E.D. Mich. 2011).
Plaintiff sets forth no evidence that any employee of defendant
Oakwood impermissibly touched her.
19

Rather, she argues that the

alleged injuries caused by the officers is “attributable” to Oakwood, but
still fails to establish what an employee of Oakwood did to make it so.
As to the City Defendants, plaintiff has not set forth sufficient
evidence to establish a “harmful or offensive” touching, only a
legitimate one. When a defendant “use[s] reasonable force to effect [a]
lawful arrest of [a] plaintiff, the plaintiff’s assault and battery claims
cannot withstand summary judgment.” Sterling-Ward v. Tujaka, 414 F.
Supp. 2d 727, 742 (E.D. Mich. 2006) (citing Kahlich v. City of Grosse
Pointe Farms, 120 F. App’x 580, 586 (6th Cir. 2005)).
The only evidence that plaintiff sets forth is her own affidavit, in
which she claims that she was stomped on, kicked, punched, and
otherwise beaten by the officers.

It is not just that her affidavit is

contrary to every other account in the case.

As noted by the City

Defendants, the only medical records provided by plaintiff show that
she “sought treatment for shoulder pain that she claims occurred as a
result of” the arrest “more than [fifteen] months after the alleged
‘injury’ and” within a week of her deposition. (See Dkt. 87 at 25-26
(citing Dkt. 87-26; Dkt. 87-27).) She later returned for a follow-up visit.
(See id.) She testified in her deposition that these are the only two
20

times she sought medical attention related to her alleged injuries from
the arrest. (Id. at 26 (citing Dkt. 87-3 at 22).)
No reasonable juror could find for plaintiff based on this “mere
scintilla” of evidence—two records from visits to the doctor, which show
very little, within days of her deposition yet more than a year after the
alleged injury. See Stratford v. Merlo, No. 12-CV-13013, 2013 U.S. Dist.
LEXIS 105547, at *19-20 (E.D. Mich. July 29, 2013) (granting
defendant

summary

judgment

when

plaintiff’s

“eleventh-hour

statements at his deposition” were “not supported by any evidence in
the record”); Mohamud v. Johnson, No. C08-1833-JCC, 2009 U.S. Dist.
LEXIS 133407, at *5-6 (W.D. Wash. Nov. 19, 2009) (summary judgment
for officer because plaintiff’s only evidence of excessive force was his
uncorroborated testimony that plaintiff had been kneed in back, kicked
in right hip, and struck four times in face and ribs).

This claim is

therefore dismissed.
f. Malicious prosecution claim
To establish a claim of malicious prosecution under Michigan law,
a plaintiff must show that (1) defendants initiated a criminal
prosecution against her, (2) the criminal proceedings terminated in her
21

favor, (3) the private entity who instituted or maintained the
prosecution lacked probable cause for its actions, and (4) the action was
undertaken with malice or a purpose in instituting the criminal claim
other than bringing the offender to justice. Walsh v. Taylor, 263 Mich.
App. 618, 632-33 (2004). When termination “results from a compromise
or settlement or is brought about by an action of the accused as a
courtesy or favor or by some act of the accused that prevents the
litigation, there is no favorable termination that will serve as a basis for
a cause of action for malicious prosecution.” Cox v. Williams, 233 Mich.
App. 388, 394 (1999).
Here, the criminal proceedings against plaintiff were terminated
after the parties mutually agreed to dismiss the charges. (See Dkt. 8719; Dkt. 87-20.) Thus, plaintiff cannot establish the second element of
the claim. See Cox, 233 Mich. App. at 394.
But even assuming that she could, plaintiff has not set forth
sufficient evidence to support her argument that defendants acted with
malice. “Malice” is “a purpose other than that of securing the proper
adjudication of the claim.” Payton v. City of Detroit, 211 Mich. App.
375, 395 (1995). Plaintiff argues that defendant Oakwood intended to
22

retaliate against her for having an “anti Heritage sign,” and thus “lied
and falsified records to pursue her false arrest.”

(Dkt. 95 at 22.)

According to plaintiff, this was so that defendant Oakwood could “get
her out of the way to falsely imprison her mother and illegally obtain an
ex parte appointment of a temporary guardian.”

(Id.)

None of the

evidence, except her conclusory statements in her affidavits, supports
this speculation.
As to the City Defendants, plaintiff argues that they worked with
defendant Oakwood to bring “about the false charges” and that officer
Wojtowicz “wrote a report willfully omitting critical facts” to “make it
appear that she was a horrible person attacking her mother.” (Dkt. 108
at 18.) Plaintiff speculates that “[i]t is reasonable that the charges may
have been dismissed at her arraignment if Wojtowicz had not omitted
critical facts.” (Id.) But as set forth above, the City Defendants, even
accepting that they relied on “the nurses[’] statements [that] were
hearsay and denied by [p]laintiff” (Dkt. 108 at 18-19), had probable
cause to arrest and later arraign plaintiff.
Plaintiff’s claim is dismissed because she cannot establish that
“the criminal proceedings terminated in her favor” given the mutual
23

agreement to dismiss the case. Cox, 233 Mich. App. at 394. Even if she
could, she fails to set forth any evidence to establish that defendant
Oakwood or the City Defendants acted with malice, that is, “a purpose
other than that of securing the proper adjudication of the claim.”
Payton, 211 Mich. App. at 395.
g. Motion to amend complaint
Over one year after filing her original complaint, and on the eve of
the dispositive motions deadline, plaintiff filed a motion to amend,
seeking to add additional claims: Count VII intentional interference
with plaintiff’s authority as patient advocate-health care power of
attorney and Count VIII defamation. (Dkt. 83-1.) She also seeks to add
Dr. Wayel Katrib, Bethany Nalepka, and Janet Stevens, all current or
former

employees

of

defendant

Oakwood

Healthcare,

Inc.,

as

defendants. (Id.) This is plaintiff’s second attempt to file an amended
complaint, the first having been denied after a hearing. (See Dkt. 57.)
Plaintiff’s motion to amend is denied for several reasons. First,
the proposed amendment is nearly identical to the one from March 2015
that the Court previously denied plaintiff leave to enter. It seeks to add
the same parties, the same two counts, and the same supporting
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allegations. (Compare Dkt. 33-1 with Dkt. 83-1.) For the same reasons
the first motion to amend was denied, the Court denies this one.
Second, plaintiff fails to demonstrate “good cause” under Rule 16
why the schedule should be modified. See Fed. R. Civ. P. 16(b)(4) (“A
schedule may be modified only for good cause and with the judge’s
consent.”). “Once the scheduling order’s deadline passes, a plaintiff first
must show good cause under Rule 16(b) for failure earlier to seek leave
to amend before a court will consider whether amendment is proper
under Rule 15(a).”
2003).

Leary v. Daeschner, 349 F.3d 888, 909 (6th Cir.

An “important consideration for a district court deciding

whether Rule 16’s ‘good cause’ standard is met is whether the opposing
party will suffer prejudice by virtue of the amendment.” Id.
The scheduling order entered in this case provided for a cutoff of
November 15, 2014, to amend the pleadings.

(Dkt. 19.)

Both of

plaintiff’s motions to amend came after that time. The one at issue here
was filed on October 28, 2015 (Dkt. 83), nearly one year after the
deadline in the scheduling order had passed.

In her reply, plaintiff

argues that good cause is shown because the attorney for defendant

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Oakwood misled her regarding the individual defendants she seeks to
add. (Dkt. 89 at 6-7.)
But as highlighted by defendant Oakwood, plaintiff was aware of
their identities even before the commencement of this litigation. (Dkt.
84 at 7-8.) And the two claims plaintiff seeks to add to the complaint
are based on information that plaintiff knew before the filing of the
complaint.
amendment.

Moreover, defendants would be prejudiced by the
Discovery had passed and the dispositive motions

deadline was imminent when plaintiff filed the motion.

See, e.g.,

Edwards v. Grand Rapids Cmty. Coll., No. 1:09-cv-1067, 2010 U.S. Dist.
LEXIS 52340, at *7-8 (W.D. Mich. May 27, 2010) (“Prejudice to the
defendants in these circumstances is patent. Plaintiff seeks to upset
the orderly progress of this case towards resolution by injecting claims
against four new defendants sixty days before the close of discovery.”).
Because plaintiff was “obviously aware of the basis of the claim for
many months” before the deadline for amended pleadings and
defendants would be prejudiced at this point, plaintiff’s motion is
denied. See Leary, 349 F.3d at 908.

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IV.

Conclusion
To fully consider defendants’ motions for summary judgment,

plaintiff’s motion to grant corrections (Dkt. 111) is GRANTED, and
plaintiff’s motion for leave to file index (Dkt. 115) is GRANTED.
However, plaintiff’s motion to compel (Dkt. 114) is DENIED, because
plaintiff was given the opportunity to view the records sought in the
motion but did not exercise it and otherwise has possession of the full
copy of the records. (See Dkt. 69.)
The Court has had a great deal of involvement with this case.
Hearings have been held on various motions, and the plaintiff’s
deposition was convened at the Court so the undersigned could rule on
objections and assist the parties in proceeding with the deposition in an
effective manner.

One thing is clear.

Plaintiff feels deeply that

defendants caused her mother’s death and subjected plaintiff to
aggravation when she tried to save her mother’s life. Unfortunately,
given the evidence presented, this case is not the appropriate vehicle for
addressing these concerns.

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For the reasons set forth above, defendants’ motions for summary
judgment (Dkt. 86; Dkt. 87) are GRANTED, and plaintiff’s motion to
amend (Dkt 83) is DENIED.
IT IS SO ORDERED.
Dated: November 17, 2016
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
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 November 17, 2016.
s/Felicia M. Moses
FELICIA M. MOSES
Case Manager

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