Lorenzo v. Bailey et al

Filing 149

OPINION; Order to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

TAMMY LORENZO,
guardian for Lydell J. Burt, a legally
incapacitated person on behalf of
Lydell J. Burt,
Plaintiff,

Case No. 1:10-cv-420

v.

HON. JANET T. NEFF

L. PAUL BAILEY et al.,
Defendants.
____________________________________/

OPINION
Tammy Lorenzo, mother of Lydell J. Burt, filed this case on his behalf after he suffered
permanent brain damage from an alleged failure to provide medical treatment for an ear infection
during his three-week incarceration at the Berrien County Jail, which resulted in severe mastoiditis
with penetration to the brain, and four brain surgeries in 2007, leaving him legally incapacitated.
Named as defendants are Sheriff L. Paul Bailey, Lt. Corey Burke, Berrien County, three doctors and
six nurses. Pending before the Court is Defendant Dr. Lynn S. Gray’s Motion to Dismiss or for
Judgment pursuant to Federal Rule of Civil Procedure 12(b)(6) and/or 12(c). For the reasons that
follow, the motion is properly denied.1

1

This motion is decided without oral argument. Having reviewed the parties’ written
submissions and accompanying exhibits, the Court finds that the relevant facts and arguments are
adequately presented in these materials and oral argument is unnecessary. See W.D. Mich. LCivR
7.2(d).

I. Factual Summary2
Burt was sentenced as a juvenile to 35 days in the Berrien County Jail (Compl. ¶ 10).3 At
the time of his incarceration on October 17, 2007, Burt had just turned seventeen years of age, and
was suffering from an ear infection in his right ear, of which defendants were informed. During his
incarceration the earache/ear infection progressively worsened, despite being seen by various
medical personnel within the Berrien County Jail. His mother (Plaintiff) repeatedly advised jail
officials and medical staff over the course of his incarceration that her son was suffering from an
earache/ear infection and was in severe pain, and subsequently after treatment, that it had not
improved and he needed medical attention.
As Burt’s condition continued to worsen, he had fluid and puss/blood draining from his ear.
He experienced weight loss, dehydration, an inability to hold his head upright, general weakness and
imbalance, a yellow hue to his skin and pain in his ear and neck, as observed by his mother, who
informed jail officials and/or medical staff on Sunday, October 28, 2007, that her son requested to
go to the hospital and that he needed emergency medical attention. On Monday, October 29, Burt
continued to complain of severe pain to the back of his head and neck and drainage from his right
ear. Burt began vomiting and his condition worsened to the point that he reportedly passed out. On
the morning of October 30, 2007, Burt was transported by wheelchair to medical observation
(known as the “drunk tank”) and was purportedly placed on sick call with 30 minute checks on a
temporary basis. Burt was examined by medical staff over the course of the next several days at the

2

The facts are taken as set forth by Plaintiff, for purposes of this motion only, and are not
intended as a resolution of any facts in dispute (see Pl. Br., Dkt 136, at 1-4; Compl. ¶¶ 29-86).
3

Plaintiff states in her brief, that Burt was sentenced to 30 days in jail, which is more likely
accurate (Pl. Br. at 1); however, the complaint states the sentence was 35 days in jail.
2

jail, but without further testing or outside medical evaluation, having been returned to his cell on
November 1. Burt’s mother continued to press jail personnel for medical assistance for him, since
by November 5, 2007, he was unable to walk due to pain, dizziness and weakness.
On the morning of Wednesday, November 7, Burt was examined by a jail doctor (Defendant
Christopher J. Prince, M.D.) and was assessed with “severe otitis media or abscesses/cyst within
right ear canal and a STAT consult was made with an ear, nose and throat physician” (Compl. ¶ 72).
At approximately 12:41 p.m. on November 7, a deputy authored and transmitted a wizard mail to
the sentencing judge, stating: “The above has been scheduled for a 2 hour brain scan and he gets out
11/15. Would you consider suspending the remaining jail time, releaving [sic)] us from the liability
and responsibility of this procedure?” (id. ¶ 73).
Shortly thereafter, the judge suspended Burt’s sentence, and at approximately 1:45 p.m. on
November 7, 2007, Burt was released from jail, and subsequently dropped off by two sheriff
deputies at Lakeland Hospital for a CT scan. On November 9, 2007, his mother transported him to
the emergency room of a South Bend, Indiana, hospital where he was diagnosed with bacterial
meningitis and right mastoiditis. Burt was admitted to the Intensive Care Unit and underwent four
brain surgeries between November 9, 2007 and December 2, 2007, and was eventually transferred
to the University of Michigan’s Mott Children’s hospital, where he remained a patient through
January 11, 2008. As a result of his injuries, Burt has suffered significant cognitive defects that are
permanent in nature.

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During the time Burt was incarcerated, Defendant Gray (“Defendant”) was the designated
“medical authority” at the Berrien County Jail pursuant to a Medical Services Agreement.4 Under
the Agreement, Defendant was responsible for providing medical care to jail inmates, assisting in
developing and implementing medical and nursing care policies and procedures, and
developing/reviewing/overseeing training of medical services and support staff. He approved and
supervised medical procedures in the jail, acted as liaison between the other physicians under
contract and the administration of the jail, and he countersigned all medical orders at the jail. As
the “medical authority,” Defendant was to “provide a weekly chart review and quality assurance
review.” (See Compl. ¶¶ 15, 20 and Pl. Ex. A ¶¶ 4M, 4N, 4O, 8).
II. Legal Standards
In deciding a motion to dismiss for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6), the court must treat all well-pleaded allegations in the complaint as true and
draw all reasonable inferences from those allegations in favor of the nonmoving party. Lambert v.
Hartman, 517 F.3d 433, 439 (6th Cir. 2008); Moon v. Harrison Piping Supply, 465 F.3d 719, 723
(6th Cir. 2006). “A claim survives this motion where its ‘[f]actual allegations [are] enough to raise
a right to relief above the speculative level on the assumption that all of the complaint’s allegations
are true.’” Zaluski v. United Am. Healthcare Corp., 527 F.3d 564, 570 (6th Cir. 2008) (quoting Bell

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Defendant objects to Plaintiff’s reliance on the contents of the Medical Services Agreement,
attached as Exhibit A to Plaintiff’s response to Defendant’s motion. Because the Agreement was
referenced in the complaint (see, e.g., ¶ 15), and is directly relevant, the Court finds Defendant’s
objection unwarranted. “[W]hen a document is referred to in the pleadings and is integral to the
claims, it may be considered without converting a motion to dismiss into one for summary
judgment.” Commercial Money Ctr., Inc. v. Illinois Union Ins. Co., 508 F.3d 327, 335-36 (6th Cir.
2007). Even absent the Court’s consideration of Exhibit A, the Court would reach the same result
with respect to this motion, based on Plaintiff’s allegations in the complaint.
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Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007)). Stated differently, the complaint must
present “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at
570. “The complaint should give the defendant fair notice of what the plaintiff’s claim is and the
grounds upon which it rests.” German Free State of Bavaria v. Toyobo Co, Ltd., 480 F. Supp. 2d
958, 963 (W.D. Mich. 2007); see also Twombly, 550 U.S. at 555 (citing FED. R. CIV. P. 8(a)(2)).
Accordingly, the complaint must contain either direct or inferential allegations respecting all the
material elements to sustain recovery under a viable legal theory. Bavaria, 480 F. Supp. 2d at 963;
see also Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 726 (6th Cir. 1996).
For purposes of a motion pursuant to Rule 12(c), the complaint must be construed in the light
most favorable to the nonmoving party, and all well-pleaded material allegations of the pleadings
must be taken as true; the motion is granted only when the moving party is entitled to judgment as
a matter of law. Commercial Money Ctr., Inc. v. Illinois Union Ins. Co., 508 F.3d 327, 336 (6th Cir.
2007); Ross, Brovins & Oehmke, P.C. v. Lexis Nexis Group, a Div. of Reed Elsevier Group, PLC,
463 F.3d 478, 487 (6th Cir. 2006).
“‘To state a claim under 42 U.S.C. § 1983, a plaintiff must set forth facts that, when
construed favorably, establish (1) the deprivation of a right secured by the Constitution or laws of
the United States (2) caused by a person acting under the color of state law.’”5 Dominguez v. Corr.
Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009) (citations omitted). In Phillips v. Roane County,
Tenn., 534 F.3d 531, 539-40 (6th Cir. 2008), the Sixth Circuit set forth the analysis for a § 1983
claim based on deliberate indifference to an inmate’s medical needs:

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Defendant concedes for purposes of his motion that he is a state actor as alleged in
Plaintiff’s complaint (Def. Br. at 5 n.2).
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A constitutional claim for deliberate indifference to serious medical needs
requires a showing of objective and subjective components. The objective
component requires a plaintiff to show 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). We have previously explained that “where a plaintiff’s claims arise from
an injury ‘so obvious that even a layperson would easily recognize the necessity for
a doctor's attention,’... it is sufficient to show that he actually experienced the need
for medical treatment, and that the need was not addressed within a reasonable time
frame.” Blackmore v. Kalamazoo County, 390 F.3d 890, 899–900 (6th Cir. 2004)
(citation omitted). In contrast, the subjective component requires a plaintiff to “allege
facts which, if true, would show that the official being sued subjectively perceived
facts from which to infer substantial risk to the prisoner, that he did in fact draw the
inference, and that he then disregarded that risk.” Comstock v. McCrary, 273 F.3d
693, 703 (6th Cir. 2001) (citing Farmer, 511 U.S. at 837, 114 S. Ct. 1970). Although
the latter, subjective standard “is meant to prevent the constitutionalization of
medical malpractice claims,” a plaintiff need not show that the officer acted with the
specific intent to cause harm. Id. Indeed, “‘deliberate indifference to a substantial
risk of serious harm to a prisoner is the equivalent of recklessly disregarding that
risk.’” Id. (quoting Farmer, 511 U.S. at 836, 114 S. Ct. 1970). Officials, of course,
do not readily admit this subjective component, so “it [is] permissible for reviewing
courts to infer from circumstantial evidence that a prison official had the requisite
knowledge.” Id.
III.. Analysis
Defendant seeks dismissal on the grounds that Plaintiff’s complaint fails to state a claim
upon which relief can be granted under 42 U.S.C. § 1983, pursuant to the standard in Twombly, 550
U.S. at 555-56. He argues that Plaintiff has failed to provide the requisite factual allegations to
render the claims against Defendant “plausible,” and therefore, the claims against him in both his
personal and official capacities should be dismissed pursuant to Rule 12(b)(6) or Rule 12(c). The
Court disagrees.
A. Personal Capacity Suit
For purposes of his motion, Defendant does not challenge that Burt had a serious medical
need; thus, the objective component of the deliberate indifference standard is not at issue. The
question is whether the subjective component is met, i.e., whether Plaintiff has alleged “‘facts which,
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if true, would show that the official being sued subjectively perceived facts from which to infer
substantial risk to the prisoner, that he did in fact draw the inference, and that he then disregarded
that risk.’” Phillips, 534 F.3d at 540 (quoting Comstock, 273 F.3d at 703).
Although the numerous allegations in the complaint are not specifically alleged as to each
particular defendant, the allegations are sufficient to state a claim for deliberate indifference against
Defendant Dr. Gray based on the circumstances presented. Defendant asserts that Plaintiff claims
that Burt was examined by co-defendants Dr. Prince or Dr. Robert M. Stephen on several occasions,
but not Defendant Dr. Gray, and although the complaint outlines a series of events involving Burt’s
care and treatment (or alleged lack thereof) during his incarceration, there are no allegations of
actions or inactions by Defendant suggesting that he “recklessly disregarded” the risk of serious
harm to Plaintiff. See Phillips, 534 F.3d at 540. The Court disagrees.
Plaintiff alleges that Defendant had a Medical Services Agreement with Berrien
County/Berrien County Jail under which Defendant provided medical care to the inmates in the jail
medical unit and countersigned all medical orders at the Jail, and additionally, that under the
Agreement, Defendant was the “Medical Authority” at the Berrien County Jail (Compl. ¶ 20).
Plaintiff sets forth specific allegations of Burt’s progressively worsening, serious medical needs over
the course of three weeks of incarceration, and of medical treatment or the lack thereof in light of
Defendant’s obligation to provide medical services and care to jail inmates. Further, as the “Medical
Authority,” for the Jail, Defendant was personally responsible for weekly chart review: “[t]he
physician designated as medical authority shall provide a weekly chart review and quality assurance
review” (Pl. Br. Ex A ¶¶ 8, 4M). Such responsibilities are a sufficient basis for liability on the part

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of Defendant with respect to his medical services. Moreover, Plaintiff has sufficiently alleged
Defendant’s liability with respect to oversight, policies, supervision and training at the Jail.
Contrary to Defendant’s argument, the complaint contains more than mere conclusory and
generalized allegations to support a claim of deliberate indifference.

Plaintiff alleges that

Defendants did not provide medical assistance and attention for Burt despite his obvious need; that
the training, policies, and procedures were inadequate; that there was no proper and appropriate
method of identifying serious medical needs or emergencies and intervening in a timely manner, and
that “[d]efendants engaged in conduct so reckless that it demonstrated a substantial lack of concern
for whether or not injury would result to [Burt]” (Compl. ¶¶ 102-04).
Additionally, despite his serious medical condition, and Defendants’ knowledge of his
serious condition and medical history, Burt was placed in the drunk tank for a period in excess of
48 hours without a blanket or mattress pad (Compl. ¶¶ 51-58, 105). It is also noteworthy that it can
be reasonably inferred from the complaint allegations that the cost of medical care was a
consideration or reason for the indifference to Burt’s serious medical needs. When Plaintiff’s
mother contacted Jail officials on October 28 concerning Burt’s need for emergency medical
attention, she was asked who would pay for it, and when she responded that either Medicaid or she
personally would pay, she was informed that it would have to be a life or death situation before Burt
would be taken to the hospital, and she was also told later that day that her son was fine (id. ¶¶ 4445). Ultimately, according to the complaint allegations, once Burt’s condition necessitated a brain
scan, Jail officials sought and obtained the suspension of Burt’s sentence in order to release him
early and avoid liability and responsibility for him (id. ¶¶ 73-74).

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Plaintiff has sufficiently alleged a claim against Defendant Dr. Gray for deliberate
indifference in his personal capacity. Defendant is not entitled to dismissal of this claim.
B. Official Capacity Suit
Defendant argues that Plaintiff’s action against him in his official capacity is improper
because the real party in interest is Berrien County, and Defendant is an unnecessary party. That
is, because Berrien County is a named defendant in this action, and Plaintiff’s claims are pled
against the County, the claims against Defendant in his official capacity are duplicative and
unnecessary, and the “official capacity” suit against him should be dismissed.
The Court declines to dismiss the official capacity suit on the grounds it is duplicative.
Further, for the reasons discussed with regard to the personal capacity suit, the Court otherwise finds
no proper basis for dismissal at this juncture of the case.
“A suit against an individual in his official capacity is the equivalent of a suit against the
governmental entity.” Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994) (citing Will v.
Michigan Dep’t of State Police, 491 U.S. 58, 68 (1989)). The Supreme Court has explained the
basis of this rule:
Personal-capacity suits seek to impose personal liability upon a government
official for actions he takes under color of state law. See, e.g., Scheuer v. Rhodes,
416 U.S. 232, 237-238, 94 S. Ct. 1683, 1686-1687, 40 L. Ed. 2d 90 (1974).
Official-capacity suits, in contrast, “generally represent only another way of pleading
an action against an entity of which an officer is an agent.” Monell v. New York City
Dept. of Social Services, 436 U.S. 658, 690, n. 55, 98 S. Ct. 2018, 2035, n. 55, 56 L.
Ed. 2d 611 1978). As long as the government entity receives notice and an
opportunity to respond, an official-capacity suit is, in all respects other than name,
to be treated as a suit against the entity. Brandon [v. Holt,] 469 U.S. [464,] 471-472,
105 S. Ct., at 878. It is not a suit against the official personally, for the real party in
interest is the entity.
Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (emphasis in original).

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Plaintiff does not expressly disagree that Berrien County is the real party in interest with
respect to the official capacity suit, but argues vehemently that Defendant relies on no authority to
support the “preposterous assertion” that the official capacity suit against Defendant should be
dismissed as duplicative (Pl. Br., Dkt 136 at 12). However, Plaintiff cites no contrary authority and
provides the Court no persuasive reasoning for maintaining the action against Defendant in his
official capacity.
Nonetheless, it appears courts are divided on the issue whether dismissal is proper. Some
courts have held that suits against officers in their official capacities are properly dismissed when
the plaintiff sues the municipality directly:
The Supreme Court has held that it is redundant to allege claims against both
a municipality and against its officers in their official capacities, as the latter
necessarily implicates the former. See Kentucky v. Graham, 473 U.S. 159, 165–166,
105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985); Soper v. Hoben, 195 F.3d 845, 853 (6th
Cir. 1999). Therefore, when a civil rights plaintiff also sues the municipality directly,
district courts generally dismiss the official capacity suits against the municipal
employees. See Vance v. County of Santa Clara, 928 F. Supp. 993, 996 (N.D. Cal.
1996); Carnell v. Grimm, 872 F. Supp. 746, 752 (D. Haw. 1994); Willis v. Bell, 726
F. Supp. 1118, 1124 (N.D. Ill. 1989).
Williams v. City of Saginaw, Nos. 00–10241–BC, 00–10244–BC, 2002 WL 1798907, at *13 (E.D.
Mich. Aug. 6, 2002) (unpublished opinion). However, other courts have held to the contrary, even
though acknowledging the holding in Williams:
The Court acknowledges that Plaintiff’s claims against the individual
Defendants in their official capacities are duplicative of those made against the City
of Columbus. Monell and its progeny, however, clearly recognize and condone
official capacity claims against local government employees, and the courts routinely
countenance such lawsuits. Defendants have provided no binding authority from the
Supreme Court or the Court of Appeals for the Sixth Circuit from which this Court
could conclude that dismissal of the official capacity claims against the Defendants
is proper.

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Porter v. City of Columbus, No. C2–06–1055, 2008 WL 202891, at *6 (S.D. Ohio Jan. 22, 2008)
(unpublished opinion); see also Crockett v. City of Ashtabula, Ohio, No. 1:11 CV 555, 2011 WL
3608386, at *4 (N.D. Ohio Aug. 16, 2011) (unpublished opinion).
In this case, Defendant is not merely an employee of the governmental entity being sued but
instead a medical doctor under contract to the County, and the official capacity suit is premised on
the provision of medical care uniquely within the expertise of the individual doctor rather than the
County generally. Thus, the argument that Defendant Gray is an unnecessary and duplicative party
is certainly not compelling. Absent binding, persuasive authority supporting dismissal, this Court
declines to dismiss Plaintiff’s official capacity suit against Defendant as duplicative.
The Court likewise finds Defendant’s other asserted grounds for dismissal of the official
capacity suit untenable under Rule 12(b)(6) and Rule 12(c) standards. Plaintiff’s complaint
sufficiently alleges a claim against Defendant in his official capacity on the basis of his role as one
of the policymakers for Berrien County in the development and implementation of medical and
nursing care at the Berrien County Jail, and with regard to alleged defunct policies and customs, or
lack thereof, pertaining to medical care for inmates (see, e.g., Compl. ¶¶ 20, 91(j) and 95).
The complaint alleges that Defendant assisted Berrien County and Sheriff Bailey in
developing and implementing medical and nursing care within the Berrien County Jail, acted as
liaison between other physicians and administration of the jail, countersigned all medical orders at
the Berrien County Jail, and was the Medical Authority at the Jail (Compl. ¶ 20). Based on the
numerous allegations in the complaint, the nature and extent of Defendant’s role as a policymaker
and his responsibility with respect to jail medical procedures and/or customs is a question of fact,
and dismissal pursuant to Rule 12(b)(6) or 12(c) is improper.

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Moreover, as noted earlier in this opinion, Defendant had a Medical Services Agreement
with Berrien County/Berrien County Jail under which he was individually designated as the
“Medical Authority.” Under the Agreement, the doctors, including Defendant, agreed to:
Assist the Sheriff’s Department in developing and implementing policies that
assure high quality medical and nursing care. Specific policies shall be in force at
all times for:
1.
Emergency treatment of inmates
2.
Prescription medicines.
(Pl. Br., Ex. A ¶ 4A). Beyond the specifically enumerated medical services and policy and
procedure responsibilities to be performed by the doctors under the Agreement, Defendant’s
designation as the “Medical Authority” assigns him individual responsibility for providing “a …
quality assurance review” as well as other policy and procedure oversight (id. ¶ 4).
Defendant’s motion is properly denied with respect to Plaintiff’s claim against him in his
official capacity.
IV. Conclusion
“To survive a motion to dismiss, [a plaintiff] must plead ‘enough factual matter’ that, when
taken as true, ‘state[s] a claim to relief that is plausible on its face.’” Fabian v. Fulmer Helmets,
Inc., 628 F.3d 278, 280 (6th Cir. 2010) (quoting Twombly, 550 U.S. at 556, 570). “Plausibility
requires showing more than the ‘sheer possibility’ of relief but less than a ‘probab[le]’ entitlement
to relief.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009)).
Determining whether a complaint states a plausible claim for relief is a “context-specific task
that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 129
S. Ct. at 1950. “So long as [the court] can ‘draw the reasonable inference that the defendant is liable
for the misconduct alleged,’ a plaintiff’s claims must survive a motion to dismiss.” Fabian, 628

12

F.3d at 281 (quoting Iqbal, 129 S. Ct. at 1949) (internal citation deleted). Based on the Court’s
review, Plaintiff has met this standard with respect to his claims against Defendant, both in
Defendant’s personal capacity and in his official capacity.
Accordingly, Defendant’s motion to dismiss pursuant to Rule 12(b)(6) and/or Rule 12(c) is
properly denied. An Order will be entered consistent with this Opinion.

DATED: January 26, 2012

/s/ Janet T. Neff
JANET T. NEFF
United States District Judge

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