Kirk v. COUNTY OF WASHTENAW et al
Filing
47
OPINION and ORDER Granting Defendant's 24 MOTION to Dismiss and Denying Plaintiff's 43 Motion to Amend. Signed by District Judge Judith E. Levy. (SBur)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Janis Lee Kirk,
Plaintiff,
v.
Case No. 18-10107
Judith E. Levy
United States District Judge
County of Washtenaw, Kellie
Powdhar, Nicholas Burleson,
Sabrina Pattillo, Phuong Le, Mark
Somolenski, and Amy Descombes,
Mag. Judge Mona K. Majzoub
Defendants.
________________________________/
OPINION AND ORDER GRANTING DEFENDANT’S
PARTIAL MOTION TO DIMISS [24] AND DENYING
PLAINTIFF’S MOTION TO AMEND [43]
This case arises out of a series of events that took place between
plaintiff Janis Lee Kirk’s pretrial detention at the Washtenaw County
Jail and her hearing before the Washtenaw County District Court. Her
claims under 42 U.S.C. § 1983 more or less correspond to the events on
either side of her transfer to the hospital. On one side is plaintiff’s claim
regarding the medical care she was given for withdrawal symptoms
during her detention; on the other are her claims regarding the sexual
assault by defendant officer Kellie Powdhar while she was hospitalized.
As to her medical care, plaintiff alleges that defendants were deliberately
indifferent to her serious medical needs under the Due Process Clause of
the Fourteenth Amendment. The allegations that flow from the sexual
assault include claims for excessive force, due process, and conditions of
confinement under the Fourteenth Amendment, as well as claims under
the Elliot Larsen Civil Rights Act of Michigan, Mich. Comp. Laws §
37.2302. Kirk also raises Fourth and Fourteenth Amendment claims
against defendant Washtenaw County.
This opinion only addresses plaintiff’s claims regarding her medical
care in detention. Defendant Amy Descombes, a Licensed Practical Nurse
(“LPN”) at the jail who provided or was responsible for some of Kirk’s
medical care, filed a motion to dismiss. (Dkt. 24.) Kirk subsequently filed
a motion seeking leave to amend her complaint. (Dkt. 43.)
I.
Background
Kirk was taken to the Washtenaw County Jail for pretrial detention
on May 12, 2015. (Dkt. 1 at 3.) She alleges that defendants Nicholas
Burleson, Phuong Le, Sabrina Pattillo, and Mark Somolenski, all police
officers, and Amy Descombes, “a medical staff person” later identified as
2
an LPN, were aware that Kirk would be detoxing and need medical
monitoring. (Id. at 2–3.) Between May 12 and May 17, 2015, Kirk
suffered from withdrawal symptoms, including lightheadedness and
other
undescribed
“symptoms
associated
with
detoxing
from
substances.”1 (Id. at 3–4.) Kirk asserts that the police officer defendants
and Descombes were continuously aware that she was detoxing because
she complained of her symptoms throughout her detention. (Id. at 2–4.)
After five days in custody, Kirk “was walking in the medical unit
unsupervised and fell and hit her head, causing her to pass out.” (Id. at
4.) Descombes and the defendant officers revived Kirk. (Id.) Once more,
Kirk passed out, fell, and hit her head.2 (Id.) Afterwards, she began to
have hallucinations and low blood pressure, and for a third time that day,
Kirk passed out, fell, and hit her head. (Id.) She was taken to Saint
In her proposed amended complaint, Kirk identifies these substances as
heroin and crack cocaine. (Dkt. 43 at 6.) See supra Section III.C.1.
1
The exact order of losing consciousness, falling, and hitting her head is
inconsistent across the three falls described in the operative and proposed amended
complaint. But in both complaints, Kirk’s first fall begins with falling and ends with
her losing consciousness, and the loss of consciousness appears to be the source of her
second and third falls. (Dkt. 1 at 3; Dkt. 43-3 at 8–9.)
2
3
Joseph Mercy Hospital for treatment, though she remained in custody.
(Id.) As a result of her falls, Kirk suffered head injuries. (Id. at 12.)
From 7:00 p.m. that day, May 17, 2015, until 7:00 a.m. on May 18,
2015, Powdhar was on duty in Kirk’s hospital room. (Id. at 4.) He made
“vulgar and outrageous comments to [Kirk], including, but not limited to,
comments pertaining to his genitalia, oral sex, and prostitution.” (Id. at
5.) Ultimately, Powdhar sexually assaulted Kirk, and Kirk reported it to
county employees when she arrived for her hearing at the Washtenaw
County District Court on May 20, 2015. (Id. at 7.)
The subject of the current motions to dismiss and amend the
complaint are based on Kirk’s claims against Descombes. Kirk’s claims
against the other defendants are not addressed in the motion to dismiss,
nor does Kirk’s proposed amended complaint make any modification
regarding the facts alleged or claims against the other defendants. As
clarified in her response to Descombes’ motion to dismiss, Kirk makes
one claim against Descombes in her operative and proposed amended
complaints: that Descombes was deliberately indifferent to her serious
medical needs under the Due Process Clause of the Fourteenth
Amendment. (Dkt. 1 at 12–13; Dkt. 34 at 2.) In her operative complaint,
4
Kirk alleges that Descombes did not “immediately administer proper
medical treatment when [Kirk] fell and injured her head.” (Dkt. 1 at 12.)
Then, Kirk claims that this lack of proper care, the delay in care, and a
“failure to ensure that elementary precautions were taken” caused her
condition to worsen. (Id.) Finally, Kirk states that Descombes prevented
her from accessing adequate medical care and personnel. (Id.) In
plaintiff’s view, Descombes was therefore deliberately indifferent to
Kirk’s serious medical needs, which caused her to suffer a head injury
and to be in the hospital where defendant Powdhar sexually assaulted
her.3 (Id. at 12–13.)
At oral argument, Kirk abandoned this bizarre theory of causation—that but
for Descombes’ failure to treat her, Kirk would not have fallen, and if she had not
fallen, she would not have had to go to the hospital, and if she had not gone to the
hospital, she would not have been sexually assaulted there by Powdhar. However,
she neglected to remove this allegation from her proposed amended complaint, which
strangely proposes “transferring [p]laintiff to an outside facility such as a hospital”
as a proper form of medical treatment that defendants failed to provide. (Dkt. 43-3 at
5, 18.) The Court assumes this was an oversight. But in the event it was not and Kirk
continues to allege that Powdhar’s sexual assault is an injury under her § 1983 claim
against Descombes, the Court dismisses her complaint to that extent. In § 1983 cases,
“normal causation principles apply.” Sykes v. Anderson, 625 F.3d 294, 314–15 (6th
Cir. 2010). Here, Kirk fails to plead facts that would prove a reasonable person who
was an LPN at the jail could have foreseen that Powdhar’s sexual assault at the
hospital was among the risks of her conduct related to Kirk’s medical care. See
Restatement (Third) of Torts, § 19 cmt. c (Am. Law. Inst. Oct. 2018 Update).
3
5
In response, Descombes filed a motion to dismiss. (Dkt. 24.) Kirk
then filed a motion seeking leave to amend her first complaint. (Dkt. 43.)
Descombes opposes Kirk’s motion to amend. (Dkts. 45, 46.) A hearing was
held on both motions on June 14, 2018.
II.
Legal Standard
When deciding a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the Court must “construe the complaint in the light
most favorable to the plaintiff and accept all allegations as true.” Keys v.
Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012). “To 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.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). A plaintiff’s claim is facially plausible
“when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. A plausible claim 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 Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007).
6
A party seeking to amend a claim, when such an amendment would
not be as a matter of course, “may amend its pleading only with the
opposing party’s written consent or the court’s leave. The court should
freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). Leave
should be denied where the amendment demonstrates defects “such as
undue delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of allowance of the
amendment, futility of amendment, etc.” Foman v. Davis, 371 U.S. 178,
182 (1962). “A proposed amendment is futile if the amendment could not
withstand a Rule 12(b)(6) motion to dismiss.” Parchman v. SLM Corp.,
896 F.3d 728, 738 (6th Cir. 2018) (quoting Beydoun v. Sessions, 871 F.3d
459, 469 (6th Cir. 2017)).
III. Analysis
A. Legal Framework
A plaintiff asserting a § 1983 claim must establish the following:
“(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
7
Eighth Amendment ‘forbids prison officials from “unnecessarily and
wantonly inflicting pain” on an inmate by acting with “deliberate
indifference” toward [her] 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)). The Due Process Clause of the
Fourteenth Amendment extends this protection to pretrial detainees.
Blackmore, 390 F.3d at 895 (citing Bell v. Wolfish, 441 U.S. 520, 545
(1979)).
To
indifference,
show
a
a
constitutional
plaintiff
must
violation
satisfy
through
“objective
and
deliberate
subjective
components.” Id.
For an inadequate medical care claim, the objective component
requires that “the medical need at issue is sufficiently serious.” Alspaugh
v. McConnell, 643 F.3d 162, 168 (6th Cir. 2011) (quoting Blackmore, 390
F.3d at 896). A serious medical need is “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.’”
Jones, 625 F.3d at 941 (quoting Harrison v. Ash, 539 F.3d 510, 518 (6th
Cir. 2000)).
8
To meet the subjective component, a plaintiff must plead 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)). This is required ‘to prevent the
constitutionalization of medical malpractice claims.’” Rouster v. Cty. Of
Saginaw, 749 F.3d 437, 446–47 (6th Cir. 2014) (quoting Comstock v.
McCrary, 273 F.3d 693, 703 (6th Cir. 2001)). A plaintiff does not need to
“show that the [state actor] acted with the specific intent to harm,” but
that the defendant recklessly disregarded a substantial risk of serious
harm to the plaintiff. Dominguez v. Corr. Med. Servs, 555 F.3d 543, 550
(6th Cir. 2009) (quoting Phillips v. Roane Cty., 534 F.3d 531, 540 (6th Cir.
2008)). Even if harm occurred, an official “may be found free from liability
if they responded reasonably.” Preyor v. City of Ferndale, 248 F. App’x
636, 644 (6th Cir. 2007) (quoting Farmer v. Brennan, 511 U.S. 825, 844
(1994)).
B. Motion to Dismiss Operative Complaint
Plaintiff’s operative complaint cannot survive a 12(b)(6) motion.
Although Kirk’s complaint contains sufficient factual matter which,
accepted as true, proves that she meets the objective component of her
9
deliberate indifference claim, she fails to sufficiently plead the subjective
component.
1. Objective Component
To show her medical need was sufficiently serious, Kirk must plead
that her need “is so obvious that even a lay person would easily recognize
the necessity for a doctor’s attention.” Jones, 625 F.3d at 941 (quoting
Harrison, 539 F.3d at 518). “Courts have found withdrawal symptoms to
qualify as a serious medical need.” French v. Davies Cty., 376 F. App’x
519, 522 (6th Cir. 2010). In those instances, there was a “clear
manifestation of [an] internal physical disorder.” Preyor, 248 F. App’x at
642 (quoting Blackmore, 390 F.3d at 899–900). In Preyor, vomiting,
diarrhea, laying on the floor, and complaints from the plaintiff about his
symptoms and withdrawal condition were clear manifestations of a
physical disorder, withdrawal and diabetes, that were obvious to a lay
person. Id.
Plaintiff meets the objective component. Even without crediting her
vague “symptoms associated with detoxing,” Kirk has pleaded that at
various points she was lightheaded, passed out and hit her head three
times, had low blood pressure, experienced hallucinations, complained of
10
her symptoms throughout her stay, and told defendants of her belief that
she was in withdrawal. These symptoms are analogous to the vomiting,
diarrhea, and other manifestations of withdrawal the plaintiff suffered
in Preyor. As in Preyor, Kirk suffered from symptoms that clearly showed
she had an internal physical disorder. A lay person would certainly
recognize that her withdrawal symptoms, especially her three bouts of
losing consciousness and hitting her head, necessitated a doctor’s
attention. Therefore, Kirk’s pleadings satisfy the objective component of
a deliberate indifference claim.
2. Subjective Component
Kirk’s initial complaint does not sufficiently plead the subjective
component of her deliberate indifference claim against Descombes. A
plaintiff can satisfy the subjective component of a deliberate indifference
claim by pleading that the defendant “(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.” Jones,
625 F.3d at 941. Kirk successfully pleads that Descombes subjectively
knew of a substantial risk of harm to her, but fails to plead that
Descombes consciously disregarded the risk.
11
As a preliminary matter, plaintiff “must state a plausible
constitutional violation against each individual defendant—the collective
acts of defendants cannot be ascribed to each individual defendant.”
Reilly v. Vadlamudi, 680 F.3d 617, 626 (6th Cir. 2012) (citing Heyne v.
Metro Nashville Pub. Sch., 655 F.3d 556, 563 (6th Cir. 2011); Iqbal, 129
S. Ct. at 1948) (explaining that knowledge must be specifically attributed
to each defendant and cannot be imputed across defendants). Kirk fails
to plead that Descombes had knowledge of Kirk’s second fall, third fall,
and worsening symptoms after the first fall (hallucinations and low blood
pressure). She also does not plead that Descombes was even involved in
her care at the time of the subsequent falls.
As to the second fall, the complaint states that “[p]laintiff was left
unsupervised again by [d]efendants and then passed out again, causing
her to fall and hit her head, once again. At that time, [d]efendants were
aware that [p]laintiff would be detoxing and should be medically
monitored.” (Dkt. 1 at 4.) This does not set forth Descombes’ individual
knowledge or conduct regarding the second fall. Therefore, it is
impossible for the Court to determine whether she consciously
12
disregarded a substantial risk of harm to plaintiff that she was aware of
after Kirk’s second fall.
Plaintiff’s pleadings about her third fall and worsening symptoms
are similarly lacking. For the third fall, plaintiff merely states:
“Defendants [sic] claim [p]laintiff was fine and didn’t need to be
monitored. After being left alone for a short time, [p]laintiff passed out,
causing her to fall and hit her head.” (Id.) And for her worsening
symptoms, Kirk only alleges that she experienced hallucinations and low
blood pressure, and “[d]efendants claim [p]laintiff was fine and didn’t
need to be monitored.” The Court cannot impute knowledge of Kirk’s
second and third falls or her worsening symptoms to Descombes
pursuant to Reilly, nor can it guess what her course of conduct may have
been. Plaintiff must plead that Descombes had knowledge of her
condition and what her course of conduct was to determine if she
consciously disregarded risks that were substantial to plaintiff’s health.
These deficits in the complaint require the Court to limit its review of
plaintiff’s allegations against Descombes to the first fall.
13
i. Whether Descombes subjectively knew of a risk to
plaintiff’s health and drew the inference that a
substantial risk of harm to plaintiff’s health
existed.
Pleadings that put forth “[c]ircumstantial evidence” and establish
“that the risk was obvious” can support the inference that an official was
aware of a medical risk and that it was substantial. Dominguez, 555 F.3d
at 550 (quoting Terrance v. Northville Reg’l Psychiatric Hosp., 286 F.3d
834, 843 (6th Cir. 2002)). In Dominguez, a nurse who knew that a
prisoner was likely suffering from heat exhaustion and that his condition
had worsened, was subjectively “aware of risks associated with excessive
heat, dehydration, and heat stroke” and had inferred that the risk was
substantial. Id. at 550–52. There, the Sixth Circuit considered the
obviousness of the new symptoms plaintiff began to experience, including
vomiting, suffering from a headache, and sweating, as well as the fact
that the defendant was a trained nurse, to determine that she was
subjectively aware of a substantial risk. Id.
Plaintiff successfully pleads that Descombes was subjectively
aware of a substantial risk up to the time of her first fall based on
circumstantial evidence and the obviousness of the risk. According to the
operative complaint, Descombes knew plaintiff was in withdrawal and
14
exhibiting withdrawal symptoms. She also knew that Kirk’s condition
had worsened because she revived Kirk after she had passed out and hit
her head. Like the vomiting, headache, and sweating in Dominguez,
Kirk’s loss of consciousness, fall, and head injury were obvious signs her
withdrawal had become a substantial risk to her health. As a trained
medical professional, Descombes would have known withdrawal was a
medical risk. Given Kirk’s fall, a new symptom she had not experienced
earlier, plaintiff has adequately pled facts to support her allegation that
Descombes would have made the inference the risk had advanced to a
substantial one. Like the nurse in Dominguez, Descombes subjectively
knew of a substantial risk given her medical background and the
obviousness of Kirk’s new symptom.
ii. Whether Descombes consciously disregarded the
substantial medical risk to Kirk.
Courts “distinguish between cases where the complaint alleges a
complete denial of medical care and those cases where the claim is that
a prisoner received inadequate medical treatment.” Alspaugh, 643 F.3d
at 169 (quoting Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir.1976)).
When a plaintiff alleges inadequate medical treatment, she must show
that care given was “so grossly . . . inadequate . . . as to shock the
15
conscience” or “so cursory as to amount to no treatment at all” to show
conscious disregard of a substantial risk of harm. Terrance, 286 F.3d at
843–44 (quoting Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989)).
For example, in Preyor, officers consciously disregarded a detainee’s
serious medical need, detoxing and diabetes, because they only allowed
the detainee access to a restroom; the officers did not seek additional
medical treatment, even though the plaintiff was “‘curled up’ and
‘trembling’ in a corner of a cell” and “his condition had significantly
worsened since paramedics were last summoned.” 248 F. App’x at 644.
But receiving some immediate medical attention, even if more
aggressive treatment is needed later, may not be grossly inadequate or
cursory. This is illustrated in Alspaugh. Although the prisoner eventually
needed neck surgery, a nurse responded reasonably when she
immediately examined the prisoner after the injury occurred, but
determined further treatment could wait until the next day. 643 F.3d at
169. There, the court found that “[w]hile at multiple points . . . Alspaugh
certainly would have desired more aggressive treatment,” his treatment
was not so cursory that it was not treatment at all. Id.
16
Plaintiff does not adequately plead that Descombes consciously
disregarded a substantial risk, or responded unreasonably. Kirk alleges
that Descombes did not administer immediate medical treatment;
delayed treatment; and prevented Kirk from receiving proper medical
treatment. However, her pleadings fall short because they lack additional
factual allegations that are necessary to plausibly plead that Descombes
consciously disregarded a substantial medical risk to Kirk.
First, Kirk does not plead that Descombes failed to treat her. To the
contrary, she pleads that after her first fall, “Descombes got [p]laintiff to
be responsive.” (Dkt. 1 at 4.) Unlike Preyor, where the circumstances
showed that providing a restroom was an absurd, reckless medical
response that amounted to no treatment at all for a chronic diabetic at
that stage of withdrawal, the facts as Kirk alleges them are qualitatively
different. In response to her fall and lack of consciousness, Descombes
revived her, which is precisely the kind of medical care one would hope
for; it addressed what Descombes knew to be Kirk’s worst withdrawal
symptom at that point, her loss of consciousness. Kirk fails to provide any
factual
detail
that
explains
how
Descombes’
treatment
was
constitutionally inadequate; she only makes passing references to
17
“proper medical treatment,” “immediate treatment, and “elementary
medical precautions.” (Dkt. 1 at 12.) These are not well-pleaded
allegations, but rather, are unsupported conclusions.
Kirk may wish that Descombes had provided further treatment
after her first fall because she eventually required hospitalization. But
the availability of different, more aggressive treatment, whether it is
medication, supervision, hospitalization, or something unspecified, does
not mean that a failure to provide it is necessarily a conscious disregard
of a substantive medical risk without more. See Alspaugh, 643 F.3d at
169. Like the plaintiff in Alspaugh, Kirk received immediate treatment—
she was successfully treated for the fall. Though Kirk does not explicitly
plead that Descombes should have provided more treatment and did not,
the Court infers that Descombes made the determination that no further
action was required at that time, as the nurse did in Alspaugh after
examining the plaintiff’s neck injury. Kirk provides no facts to support
her allegation that Descombes’ response was constitutionally inadequate
or so cursory that it amounted to no treatment.
Though Kirk alleges that Descombes delayed medical treatment
and prevented her from receiving other medical attention or treatment,
18
she also fails to support these conclusions. The complaint does not
address how Descombes personally delayed or interfered with any
medical treatment. Therefore, those conclusions are inadequate. For
these reasons, Kirk fails to state a claim for which relief can be granted,
and therefore her initial complaint does not survive Descombes’ motion
to dismiss.
C. Motion to Amend Complaint
Although plaintiff attempts to cure some of the deficiencies
described above in her proposed amended complaint, plaintiff’s
amendment is futile because it would not survive a Rule 12(b)(6) motion.
Again, though she meets the objective component of the inadequate
medical assistance claims against Descombes and Riley, she fails to
satisfy the subjective component.
1. Amendments to the Operative Complaint
In response to the Court’s requests at oral argument on defendant’s
motion to dismiss, plaintiff presents a somewhat more detailed
complaint. In her proposed amended complaint, Kirk names Barbara
Riley as another defendant, adds additional details about Descombes’
and Riley’s authority and their presence during Kirk’s detention, and
19
clarifies the timeline of events. Kirk also adds greater specificity to the
subjective component of her claim against Descombes and, now, Riley.4
Plaintiff alleges that Descombes and Riley are LPNs. (Dkt. 43-3 at
4.) She further alleges that they had the duty and authority to report
withdrawal symptoms that presented an excessive risk to Kirk’s health
and safety to their supervisor, to identify her as a fall risk, and to adhere
to certain policies. Kirk argues that reporting her symptoms would have
led to more supervision to prevent subsequent falls, medication such as
methadone to alleviate her symptoms, or an earlier transfer to a hospital.
(Id. at 4–5.)
Plaintiff also adds factual detail to her pleadings. First, she clarifies
that she was in withdrawal from heroin and crack cocaine. (Dkt. 43 at 6.)
Then, she clarifies that Descombes performed her intake paperwork and
Though the Court appreciates plaintiff’s efforts to comply with its requests,
it is generally unhelpful that plaintiff responded to some of the requests only in her
Amended Motion for Leave to File First Amended Complaint, rather than reflecting
them in her amended complaint itself. See Amini v. Oberlin Coll., 259 F.3d 493, 502
(6th Cir. 2001) (noting courts can only consider allegations and attachments “referred
to in the plaintiff’s complaint” that “are central to her claim”). For example, the Court
cannot consider any of the attachments to Kirk’ Amended Motion for Leave to File
First Amended Complaint (Dkt. 43), or that fluids and anti-nausea medication could
have been given to plaintiff because the proposed amended complaint contains no
reference to them. (Dkt. 43 at 6–7.)
4
20
placed her in “medical observational housing.” (Id. at 6.) Kirk also states
that after her first fall, Descombes performed a medical assessment,
determined she could stay in medical observational housing, and gave
her instructions not to walk unassisted. (Id. at 8.) Plaintiff adds that she
has a history of seizures, which was reflected in jail records from 2014,
and noted in her screening examination performed by a different,
unnamed staff member. (Id. at 7.) Kirk then provides more details about
her withdrawal symptoms: low blood pressure, lightheadedness, visual
and auditory hallucinations, head pain, disorientation, a pulse rate of
forty-four, and a seizure after her third fall before she was taken to the
hospital. (Id. at 6–10.)
Second, plaintiff solidifies the timeline of events. Again, the day
after she was detained, May 12, 2015, staff performed a screening
examination on plaintiff. (Id.) Then, at 2:30 a.m. on May 17, 2015, Riley
noted plaintiff’s low blood pressure. (Id.) And plaintiff’s falls occurred at
9:00 a.m., 10:15 am, and 11:00 a.m. that day. (Id. at 8-10.)
Plaintiff also refines some of her allegations about the subjective
component of her deliberate indifference claim. She alleges that
Descombes would have had the knowledge to report to her supervisor
21
plaintiff’s withdrawal symptoms after she completed the intake
paperwork and after plaintiff’s first fall. (Id. at 7–8.) This, Kirk argues,
would have led to medication or additional care. (Id.) Descombes also
should have marked Kirk as a fall risk, given Descombes’ knowledge of
her first fall, her involvement after the fall, and her warning that plaintiff
should not walk without assistance. (Id. at 9.) She also alleges that Riley
should have reported the low blood pressure to her supervisor after she
noted it pursuant to the Clinical Opiate Withdrawal Scale. (Id. at 7–8.)
2. Objective Component
Plaintiff successfully pleads again that her medical need was
sufficiently serious. According to her proposed amended complaint, Kirk
was exhibiting symptoms of detoxing from heroin and crack cocaine with
a history of seizures.5 The additional details, including her history of
seizures and other symptoms, such as head pain and chills, do not change
the analysis of the objective component from the operative complaint. As
During the hearing on these motions, plaintiff stated that her serious medical
need included her withdrawal and her history of seizures. A chronic condition can
contribute to the objective component of a serious medical need. E.g., Preyor, 248 F.
App’x at 642 (discussing diabetes as part of the objective component, along with
withdrawal from heroin). Furthermore, the amended complaint raises the
permissible inference that the seizure after the third fall contributed to her head
injuries. (Id. at 10.)
5
22
before, a lay person would know she required medical attention from a
doctor. See Jones, 625 F.3d at 941. Therefore, plaintiff has adequately
pleaded a sufficiently serious medical need.
3. Subjective Component
Plaintiff’s amended complaint falters again at the subjective
component of her deliberate indifference claim. Kirk must plead that
Descombes and Riley “(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.” Jones, 625
F.3d at 941; see also supra Section III.B.1–2. Kirk fails to make any
allegations which would prove that Descombes consciously disregarded
the risk to Kirk. Plaintiff also fails to plead that Riley inferred the
medical risk was substantial and then consciously disregarded the risk
to Kirk.
i. Descombes
Once again, the Court must restrict its analysis to the well-pleaded
allegations up to the first fall. Because plaintiff failed to address the
deficiencies discussed in the hearing about Descombes’ subjective
knowledge of and involvement in the second and third falls, plaintiff’s
23
amended complaint suffers from the same deficiencies as the initial
complaint. The portion of the amended complaint that addresses the
second and third falls is nearly identical to the initial complaint, aside
from adding a specific time for each fall. (See Dkt. 43-3 at 9–10.) The
Court expressly told plaintiff to submit a “renewed motion to amend that
actually cleans up the complaint.” This motion does not.
At the hearing, Kirk argued that the Court could draw the inference
that Descombes was present for the entire day if she were present at the
first fall. However, this inference would directly contravene Reilly. Again,
plaintiff “must state a plausible constitutional violation against each
individual defendant.” Reilly, 680 F.3d at 626 (citing Heyne, 655 F.3d at
563; Iqbal, 129 S. Ct. at 1948). Undoubtedly, it requires more work on
the part of plaintiff to delineate the knowledge and actions of each
defendant, but that is what § 1983 claims require. See id. The proposed
amended complaint fails to reflect Descombes’ subjective knowledge of a
substantial risk to Kirk and what conduct constituted conscious
disregard after the first fall, even after obtaining the Court’s guidance on
the complaint’s serious shortcomings. Therefore, the Court can only
24
consider Kirk’s deliberate indifference claim against Descombes based on
the allegations up to her first fall.
Though Kirk adequately pleads that Descombes subjectively knew
of a medical risk and drew the inference that the risk was substantial,
she fails to set forth factual matter which if proven would show
Descombes consciously disregarded the risk. Her initial complaint
successfully pleaded the first two elements of the subjective component
of a deliberate indifference claim, and the additional factual matter, her
history of seizures, added in the amended complaint does not change the
analysis. See supra Section III.B.2.
However, plaintiff has not adequately pleaded that Descombes
consciously disregarded that risk. Kirk alleges that Descombes should
have reported that Kirk was in withdrawal, exhibiting symptoms of
withdrawal, and fell so that her supervisor could have provided
medication or additional care, such as methadone or transfer to the
hospital. She also maintains her earlier allegations that Descombes
failed to provide immediate medical attention and prevented her from
receiving adequate medical attention. But precedent forecloses her
25
arguments at each stage Descombes was involved: Kirk’s intake and first
fall.
When Descombes completed the intake paperwork, Kirk’s
pleadings indicate that she received adequate medical treatment. At the
time of her intake she was not in withdrawal, yet Descombes placed her
in medical observational housing. It is not deliberate indifference when
medical practitioners do not prescribe withdrawal medications to
detainees not yet having withdrawal symptoms, even if they present a
risk of withdrawal symptoms. Bruederle v. Louisville Metro Gov’t, 687
F.3d 771, 778 (6th Cir. 2012). Therefore, Descombes’ decision not to
report withdrawal symptoms before they manifested so that her
supervisor could prescribe methadone was not conscious disregard.
If Kirk hoped to receive other, more aggressive treatment at this
stage, this is again analogous to Alspaugh. In that case, it was not
reckless for the nurse to first examine the prisoner’s neck for an injury
and wait to pursue other treatments. Alspaugh, 643 F.3d at 169. Like the
prisoner in Alspaugh, Kirk received immediate treatment and alleges no
facts to support her allegation that it was not proportionate to the risk
presented. At that point, she was not experiencing withdrawal
26
symptoms, so placing her in medical observational housing was not
reckless. Plaintiff has not pleaded any facts that suggest that Descombes
consciously disregarded a risk to Kirk or acted unreasonably.
Kirk also fails to plead that Descombes consciously disregarded a
substantial risk to Kirk when she treated Kirk after her first fall.
Descombes treated plaintiff: she revived Kirk, performed a medical
assessment, and then directed Kirk not to walk without assistance. As
set forth above, plaintiff has not put forth any factual matter that if true
would show that the assessment Descombes completed was so
inadequate that it shocks the conscious or so cursory that she was
essentially denied medical treatment. Terrance, 286 F.3d at 843–44
(quoting Waldrop, 871 F.2d at 1033); see Preyor, 248 F. App’x at 644; see
also supra Section III.B.2. Again, plaintiff has pleaded she was treated
throughout Descombes’ involvement, but wishes she had been given
different treatment. See Alspaugh, 643 F.3d at 169. Plaintiff may be
pleading that Descombes was negligent, but § 1983 is not an avenue to
bring malpractice claims. Rouster, 749 F.3d at 446–47; see Westlake, 537
F.2d at 860 n.5 (“[F]ederal courts are reluctant to second guess medical
judgment.”).
27
Plaintiff also pleads that Descombes should have marked her as a
fall risk. However, this may set forth a negligence claim, but does not
allege deliberate indifference to a serious medical need. Kirk also makes
no allegations that suggests she could not hear or obey Descombes’
directions to refrain from walking without assistance that would make
any other treatment, such as constant, in-person supervision, the only
reasonable response. Similarly, Kirk fails to plead that Descombes’
failure to mark Kirk as a fall risk was done with conscious disregard for
Kirk’s withdrawal risks. For the reasons set forth above, plaintiff’s
amended complaint with respect to her claims against Descombes is
futile.
ii. Riley
Decombes’ counsel also challenges the amended complaint with
respect to Riley. Plaintiff fails to plead that Riley inferred that Kirk’s
withdrawal risk was substantial and consciously disregarded the risk.
The Court can reasonably infer that Riley would have known Kirk was
in withdrawal when she took Kirk’s blood pressure because she was in
medical observational housing. This satisfies the first element of the
subjective component of a deliberate indifference claim.
28
However, plaintiff sets forth no factual allegations that indicate
Riley knew Kirk’s withdrawal posed a substantial risk to her. Unlike the
defendant in Preyor, there is nothing in the pleadings that indicates
plaintiff’s condition had begun to pose a substantial risk. In Preyor, the
medical staff knew of a substantial medical risk to plaintiff because they
knew that plaintiff was in detox and a diabetic, that he exhibited signs of
worsening symptoms, including vomiting, diarrhea, and laying on the
floor, and paramedics had been called two times before. 248 F. App’x at
643. Even in this case, Descombes knew of a substantial medical risk to
Kirk because she knew Kirk was in withdrawal and that Kirk had
experienced some worsening symptoms: losing consciousness, falling,
and hitting her head. Kirk has only pleaded that Riley knew that she was
suffering from lightheadedness, low blood pressure, and vague
“symptoms associated with detoxing.” (Id. at 7.) Kirk includes nothing
about Riley’s knowledge of any falls or other symptoms that would prove,
if true, she had drawn the inference that Kirk’s withdrawal was a
substantial medical risk.
Even if the Court granted Kirk the generous inference that Riley
was subjectively aware of a substantial medical risk, plaintiff has failed
29
to include any factual matter that shows Riley consciously disregarded
the risk. Kirk alleges that Riley departed from the Clinical Opiate
Withdrawal Scale when she did not report the low blood pressure to her
supervisor. A departure from protocol can indicate a conscious disregard
in some instances, such as the failure to abide by the policy of keeping a
prisoner exhibiting signs of heat stroke in a cool area, coupled with the
failure to respond to multiple pages for medical assistance. Terrance, 286
F.3d at 844–45. But unlike the defendant in Terrance, Riley here did no
more than depart from policy. In Terrance, the court was explicit that it
was the “aggregate” of the defendant’s actions that made his response
unreasonable. Id. at 845. Even in a negligence claim, the failure to abide
by a practice does not necessarily indicate negligence. Here, it certainly
does not indicate recklessness or a conscious disregard without other
factual allegations. For these reasons, plaintiff’s proposed amended
complaint as to Riley would not survive a motion to dismiss, and
therefore is futile.
30
IV.
Conclusion
For the reasons set forth above, plaintiff’s motion to amend is
DENIED (Dkt. 43) and defendant’s partial motion to dismiss is
GRANTED. (Dkt. 24.) Defendant Amy Descombes is dismissed.
IT IS SO ORDERED.
Dated: November 27, 2018
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 27, 2018.
s/Shawna Burns
SHAWNA BURNS
Case Manager
31
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