Haag #667757 v. Corizon of Michigan et al

Filing 5

OPINION; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, sdb)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______

BRIAN HAAG,
Plaintiff,
v.

Case No. 1:21-cv-397
Honorable Robert J. Jonker

CORIZON OF MICHIGAN et al.,
Defendants.

____________________________/
OPINION
This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983.
Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), the
Court is required to dismiss any prisoner action brought under federal law if the complaint is
frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary
relief from a defendant immune from such relief. 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C.
§ 1997e(c). The Court must read Plaintiff’s pro se complaint indulgently, see Haines v. Kerner,
404 U.S. 519, 520 (1972), and accept Plaintiff’s allegations as true, unless they are clearly
irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992). Applying these
standards, the Court will dismiss Plaintiff’s complaint for failure to state a claim.
Discussion
Factual allegations
Plaintiff is presently incarcerated with the Michigan Department of Corrections
(MDOC) at the Lakeland Correctional Facility (LCF) in Coldwater, Branch County, Michigan.
The events about which he complains occurred at that facility. Plaintiff sues Corizon of Michigan

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a/k/a Corizon Health Inc., Muskegon Mercy Health Hospital Inc., Warden Unknown Morrison,
and Dr. Edward J.W. Shields, M.D.
Plaintiff alleges that on April 18, 2020, Defendant Shields performed surgery on
Plaintiff’s right shoulder. Plaintiff states that Defendant Shields intentionally performed the wrong
surgical procedure by removing a significant amount of friable tissue from around the rotator cuff
while the implants were in place, which ultimately caused Plaintiff to suffer from permanent
damage to his right shoulder. On June 9, 2020, Plaintiff filed a grievance against each of the
named Defendants, asserting that their actions caused him to lose the ability to care for himself by
using the bathroom unassisted, wiping himself, dressing, and showering.
On November 4, 2020, Dr. James Ely Carpenter MD identified Defendant Shields
in his medical report and stated that after major surgery, Plaintiff suffered a massive re-tear of the
rotator cuff and early arthritis. Dr. Carpenter stated that the damage was irreparable and that
Plaintiff was not a good candidate for arthroplasty because of his young age.
Plaintiff claims that Defendants Muskegon Mercy Health, which is a member of
Trinity Health Inc, and Morrison failed to properly train or supervise their employees. Plaintiff
also claims that Defendant Corizon improperly delayed treatment of his shoulder prior to his
surgery pursuant to their custom and policy, which worsened Plaintiff’s injury so that surgery was
unsuccessful.
Plaintiff states that Defendants violated his rights under the Eighth Amendment, as
well as under state law. Plaintiff seeks compensatory and punitive damages, as well as equitable
relief.
Failure to state a claim
A complaint may be dismissed for failure to state a claim if it fails “‘to give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp.
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v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While
a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include
more than labels and conclusions. Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”). The court must determine whether the complaint contains “enough
facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at
679. Although the plausibility standard is not equivalent to a “‘probability requirement,’ . . . it
asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at
678 (quoting Twombly, 550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not
‘show[n]’—that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P.
8(a)(2)); see also Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (holding that the
Twombly/Iqbal plausibility standard applies to dismissals of prisoner cases on initial review under
28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B)(i)).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a
right secured by the federal Constitution or laws and must show that the deprivation was committed
by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Street v. Corr.
Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). Because § 1983 is a method for vindicating
federal rights, not a source of substantive rights itself, the first step in an action under § 1983 is to
identify the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271
(1994).

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Defendant Morrison
Plaintiff fails to allege that Defendant Morrison took any action against him, other
than to suggest that Defendant Morrison failed to adequately supervise his subordinates or respond
to Plaintiff’s grievances. Government officials may not be held liable for the unconstitutional
conduct of their subordinates under a theory of respondeat superior or vicarious liability. Iqbal,
556 U.S. at 676; Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 691(1978); Everson
v. Leis, 556 F.3d 484, 495 (6th Cir. 2009). A claimed constitutional violation must be based upon
active unconstitutional behavior. Grinter v. Knight, 532 F.3d 567, 575–76 (6th Cir. 2008); Greene
v. Barber, 310 F.3d 889, 899 (6th Cir. 2002). The acts of one’s subordinates are not enough, nor
can supervisory liability be based upon the mere failure to act. Grinter, 532 F.3d at 576; Greene,
310 F.3d at 899; Summers v. Leis, 368 F.3d 881, 888 (6th Cir. 2004). Moreover, § 1983 liability
may not be imposed simply because a supervisor denied an administrative grievance or failed to
act based upon information contained in a grievance. See Shehee v. Luttrell, 199 F.3d 295, 300
(6th Cir. 1999). “[A] plaintiff must plead that each Government-official defendant, through the
official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676.
The Sixth Circuit repeatedly has summarized the minimum required to constitute
active conduct by a supervisory official:
“[A] supervisory official’s failure to supervise, control or train the offending
individual is not actionable unless the supervisor either encouraged the specific
incident of misconduct or in some other way directly participated in it.” Shehee,
199 F.3d at 300 (emphasis added) (internal quotation marks omitted). We have
interpreted this standard to mean that “at a minimum,” the plaintiff must show that
the defendant “at least implicitly authorized, approved, or knowingly acquiesced in
the unconstitutional conduct of the offending officers.”
Peatross v. City of Memphis, 818 F.3d 233, 242 (6th Cir. 2016) (quoting Shehee, 199 F.3d at 300,
and citing Phillips v. Roane Cnty., 534 F.3d 531, 543 (6th Cir. 2008)); see also Copeland v.
Machulis, 57 F.3d 476, 481 (6th Cir. 1995) (citing Rizzo v. Goode, 423 U.S. 362, 375–76 (1976),
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and Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984)); Walton v. City of Southfield, 995 F.2d
1331, 1340 (6th Cir. 1993); Leach v. Shelby Cnty. Sheriff, 891 F.2d 1241, 1246 (6th Cir. 1989).
Plaintiff fails to allege any facts showing that Defendant Morrison encouraged or
condoned the conduct of his subordinates, or authorized, approved or knowingly acquiesced in the
conduct. Indeed, he fails to allege any facts at all about Defendant Morrison’s conduct, or to allege
any specific facts showing the that there was actually wrongdoing on the part of his subordinates.
His vague and conclusory allegations of supervisory responsibility are insufficient to demonstrate
that Defendant Morrison was personally involved in any misconduct. Conclusory allegations of
unconstitutional conduct without specific factual allegations fail to state a claim under § 1983. See
Iqbal, 556 U.S. at 678–79; Twombly, 550 U.S. at 555. Because Plaintiff’s § 1983 action is
premised on nothing more than respondeat superior liability, his action fails to state a claim.
Defendant Muskegon Mercy Health Inc. and Defendant Shields
The Court notes that Defendants Muskegon Mercy Health, which is a member of
Trinity Health Inc, and Dr. Shields, who performed Plaintiff’s shoulder surgery, appear to be
private actors. Defendant Shields is a physician providing services at Muskegon Mercy Health
Hospital Inc. In addition, as noted by Plaintiff, Defendant Mercy Health is a member of Trinity
Health, which is a non-profit Catholic Health Care system.

See https://www.mercy

health.com/about-us/.
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a
right secured by the federal Constitution or laws and must show that the deprivation was committed
by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Dominguez v.
Corr. Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009); Street v. Corr. Corp. of Am., 102 F.3d 810,
814 (6th Cir. 1996). In order for a private party’s conduct to be under color of state law, it must
be “fairly attributable to the State.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982); Street,
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102 F.3d at 814. There must be “a sufficiently close nexus between the State and the challenged
action of [the defendant] so that the action of the latter may be fairly treated as that of the State
itself.” Skelton v. Pri-Cor, Inc., 963 F.2d 100, 102 (6th Cir. 1991) (citing Jackson v. Metro. Edison
Co., 419 U.S. 345, 351 (1974)).
Where the defendants are not state officials, their conduct will be deemed to
constitute state action only if it meets one of three narrow tests. The first is the symbiotic
relationship test, or nexus test, in which the inquiry focuses on whether “the State had so far
insinuated itself into a position of interdependence with the [private party] that it was a joint
participant in the enterprise.” Jackson, 419 U.S. at 357–58. Second, the state compulsion test
describes situations “in which the government has coerced or at least significantly encouraged the
action alleged to violate the Constitution.” NBC v. Commc’ns Workers of Am., 860 F.2d 1022,
1026 (11th Cir. 1988); accord Blum v. Yaretsky, 457 U.S. 991, 1004 (1982); Adickes v. S.H. Kress
& Co., 398 U.S. 144, 170 (1970). Finally, the public function test covers private actors performing
functions “traditionally the exclusive prerogative of the State.” Jackson, 419 U.S. at 353; accord
West, 487 U.S. at 49–50. See generally, Lugar, 457 U.S. at 936–39 (discussing three tests).
Plaintiff has not presented any allegations by which the conduct of Defendants
Mercy Health or Shields could be fairly attributed to the State. Accordingly, Plaintiff fails to state
a § 1983 claim against Defendants Mercy Health and Shields.
Defendant Corizon
Plaintiff contends that Defendant Corizon is liable in this case because it has an
unwritten policy or custom of delaying treatment for prisoners in order to save money. Plaintiff’s
claim against Defendant Corizon fails because the corporation cannot be liable for the actions of
its employees based upon a theory of respondeat superior or vicarious liability. As noted above,
it is well established that a plaintiff bringing an action pursuant to § 1983 cannot premise liability
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upon a theory of respondeat superior or vicarious liability. Street v. Corr. Corp. of Am., 102 F.3d
810, 818 (6th Cir. 1996) (citing Monell, 436 U.S. 658). A plaintiff that sues a private or public
corporation for constitutional violations under § 1983 must establish that a policy or custom caused
the alleged injury. Sova v. City of Mt. Pleasant, 142 F.3d 898, 904 (6th Cir. 1998); Street, 102
F.3d at 818. The Sixth Circuit has specifically held that like a municipal corporation, a private
health care corporation’s “liability must also be premised on some policy that caused a deprivation
of [a prisoner’s] Eighth Amendment rights.” Starcher v. Corr. Med. Sys., Inc., 7 F. App’x 459,
465 (6th Cir. 2001). Plaintiff has failed to specifically allege any facts supporting his assertion
that Defendant Corizon has a custom or policy of delaying treatment in order to save money, much
less that any such custom or policy had an adverse affect on Plaintiff. Accordingly, Plaintiff fails
to state a § 1983 claim against Defendant Corizon.
State law claims
Plaintiff claims that Defendants violated state law by their grossly negligent,
reckless, and wanton misconduct with regard to the treatment of Plaintiff’s shoulder injury. Claims
under § 1983 can only be brought for “deprivations of rights secured by the Constitution and laws
of the United States.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 924 (1982). Section 1983 does
not provide redress for a violation of a state law. Pyles v. Raisor, 60 F.3d 1211, 1215 (6th Cir.
1995); Sweeton v. Brown, 27 F.3d 1162, 1166 (6th Cir. 1994). Plaintiff’s assertion that Defendants
violated state law therefore fails to state a claim under § 1983.
Moreover, to the extent that Plaintiff seeks to invoke this Court’s supplemental
jurisdiction over a state-law claim, the Court declines to exercise jurisdiction. Ordinarily, where
a district court has exercised jurisdiction over a state-law claim solely by virtue of supplemental
jurisdiction and the federal claims are dismissed prior to trial, the court will dismiss the remaining
state-law claims. See Experimental Holdings, Inc. v. Farris 503 F.3d 514, 521 (6th Cir. 2007)
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(“Generally, once a federal court has dismissed a plaintiff’s federal law claim, it should not reach
state law claims.”) (citing United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966));
Landefeld v. Marion Gen. Hosp., Inc., 994 F.2d 1178, 1182 (6th Cir. 1993). In determining
whether to retain supplemental jurisdiction, “[a] district court should consider the interests of
judicial economy and the avoidance of multiplicity of litigation and balance those interests against
needlessly deciding state law issues.” Landefeld, 994 F.2d at 1182; see also Moon v. Harrison
Piping Supply, 465 F.3d 719, 728 (6th Cir. 2006) (“Residual jurisdiction should be exercised only
in cases where the interests of judicial economy and the avoidance of multiplicity of litigation
outweigh our concern over needlessly deciding state law issues.” (internal quotations omitted).
Dismissal, however, remains “purely discretionary.” Carlsbad Tech., Inc. v. HIF Bio, Inc., 556
U.S. 635, 639 (2009) (citing 28 U.S.C. § 1367(c)); Orton v. Johnny’s Lunch Franchise, LLC, 668
F.3d 843, 850 (6th Cir. 2012).
Here, the balance of the relevant considerations weighs against the continued
exercise of supplemental jurisdiction. Accordingly, Plaintiff’s state-law claims against Defendants
will be dismissed without prejudice.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the
Court determines that Plaintiff’s federal claims will be dismissed for failure to state a claim, under
28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c). In addition, Plaintiff’s state
law claims against Defendants will be dismissed without prejudice to Plaintiff’s ability to bring
those claims in the state courts.
The Court must next decide whether an appeal of this action would be in good faith
within the meaning of 28 U.S.C. § 1915(a)(3). See McGore v. Wrigglesworth, 114 F.3d 601, 611
(6th Cir. 1997). Although the Court concludes that Plaintiff’s claims are properly dismissed, the
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Court does not conclude that any issue Plaintiff might raise on appeal would be frivolous.
Coppedge v. United States, 369 U.S. 438, 445 (1962). Accordingly, the Court does not certify that
an appeal would not be taken in good faith. Should Plaintiff appeal this decision, the Court will
assess the $505.00 appellate filing fee pursuant to § 1915(b)(1), see McGore, 114 F.3d at 610-11,
unless Plaintiff is barred from proceeding in forma pauperis, e.g., by the “three-strikes” rule of
§ 1915(g). If he is barred, he will be required to pay the $505.00 appellate filing fee in one lump
sum.
This is a dismissal as described by 28 U.S.C. § 1915(g).
A judgment consistent with this opinion will be entered.

Dated:

September 9, 2021

/s/ Robert J. Jonker
Robert J. Jonker
Chief United States District Judge

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