United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS' MOTION TO DISMISS AND TO TRANSFER VENUE
A. GOLDSMITH United States District
civil rights case, Defendants are alleged to have violated
Plaintiff's decedent's Eighth Amendment right to be
free from cruel and unusual punishment by being deliberately
indifferent to his medical needs while he was under their
care in the custody of the Michigan Department of Corrections
(“MDOC”). Before the Court is a motion to dismiss
filed by three of the twelve named defendants (Dkt. 29) and
joined by one other (Dkt. 30). A hearing on the motion was
held on May 25, 2017. For the reasons set forth below, the
motion is granted in part and denied in part, and Defendant
Roger A. Gerlach is dismissed from the case.
March 2010, Plaintiff's decedent, Richie Majors, began
his prison sentence with MDOC in Ionia, Michigan. Am. Compl.
¶ 20 (Dkt. 24). During intake, Majors told staff that he
had multiple sclerosis, or “MS.” Id.
¶ 21. He also told them of his treatment regimen, which
he had received when incarcerated by the Minnesota Department
of Corrections (“MNDOC”) for a prior term of
imprisonment. Id. At the time of intake with MDOC,
staff determined that he was asymptomatic and stable.
Id. ¶ 23.
was a licensed physician who was employed by MDOC as the
medical director and site physician at the prison located in
Ionia, Michigan. Id. ¶ 3. In July 2010, Gerlach
evaluated Majors's MNDOC records, learning about his MS
diagnosis and treatment regimen. Gerlach declined to
prescribe this treatment and “questioned”
Majors's diagnosis. Id. ¶ 24.
suffered relapses in October 2010 and August 2011 and
reported them; but Gerlach refused to order tests or
prescribe Majors's stated treatment regimen. Id.
¶¶ 25-27. Plaintiff alleges that Majors
“kited, ” or complained to, the Ionia staff about
their refusal to prescribe his medication. Id.
December 2012, MDOC transferred Majors to a prison in Adrian,
Michigan. Id. ¶ 28. There, Defendant Savithri
Kakani, who was a physician assistant employed by MDOC at the
Adrian prison, id. ¶ 8, reviewed Majors's
history from MNDOC, including his diagnosis and treatment, as
well as his subsequent history of relapses. Like Gerlach,
Kakani refused to prescribe the treatment regimen and to
conduct diagnostics to confirm the MS diagnosis. Id.
2014, MDOC transferred Majors from Adrian to a prison in
Muskegon Heights, Michigan. Id. ¶ 31. In August
2014, Majors suffered steady deterioration, resulting in
problems with his speech, facial muscles, and walking.
Id. ¶ 33. By September 2014, he was in a
wheelchair, but still no doctors sought to confirm
Majors's MS diagnosis and no one recommended that he be
given his treatment. Id. ¶ 34.
January 2013 to September 2014, Majors “kited or
complained” to Kakani, as well as Defendants Renee
Vives and Heidi Herman (nurse practitioners at the Adrian
prison, id. ¶¶ 6-7); John Solomonson (a
registered nurse at the Adrian prison, id. ¶
9); Karen Rich, Joel Evertsen, and Dorinda Blohm (registered
nurses at the Muskegon Heights prison, id.
¶¶ 10-12); Thomas LaNore (a physician assistant at
the Muskegon Heights prison, id. ¶ 13); and
Susan Howard (a medical doctor at the Muskegon Heights
prison, id. ¶ 14) at least 17 times, seeking to
obtain his treatment. Id. ¶ 32.
September 2014, a nonparty physician sent Majors for an MRI,
confirming his diagnosis. Id. ¶ 35. In October
2014, LaNore prescribed Majors's treatment that he
received in MNDOC. Id. ¶ 36. Nonetheless,
extensive deterioration followed. In April 2015, MDOC
transferred Majors to the Saint Louis, Michigan prison.
Id. ¶ 38. On June 19, 2016, Majors died due to
complications from MS. Id. ¶ 42.
are eight “nurse” defendants and four
“physician” defendants. The instant motion was
filed by Gerlach, Kakani, and LaNore (all physician
defendants) and joined by Vives (a nurse defendant).
STANDARD OF DECISION
evaluating a motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6), “[c]ourts must construe the
complaint in the light most favorable to plaintiff, accept
all well-pled factual allegations as true, and determine
whether the complaint states a plausible claim for
relief.” Albrecht v. Treon, 617 F.3d 890, 893
(6th Cir. 2010). To survive a motion to dismiss, a complaint
must plead specific factual allegations, and not just legal
conclusions, in support of each claim. Ashcroft v.
Iqbal, 556 U.S. 662, 678-679 (2009). A court may
consider exhibits attached to the complaint without
converting the motion to one for summary judgment.
Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d 673,
680-681 (6th Cir. 2011).
Statute of Limitations
well settled that § 1983 claims, such as those brought
by Plaintiff in Counts I and II, borrow the analogous
state-law statute of limitations for personal injuries.
See Owens v. Okure, 488 U.S. 235, 240 (1989).
Defendants argue that, by operation of Michigan's
applicable three-year (and thirty-day) statute of
limitations, Plaintiff's complaint was untimely as to any
conduct occurring before May 20, 2013, which is three years
and thirty days prior to Majors's death.Defs. Br. at 6-7.
All of Gerlach's alleged wrongful conduct, and some of
Kakani's and LaNore's alleged wrongful conduct,
occurred before this date.
parties agree that a federal-law “discovery rule”
governs when a limitations period begins to run. See
Pl. Resp. at 8-9; Defs. Reply at 2. They disagree, however, as
to whose discovery of the claim is relevant: is it
the decedent's discovery, or his representative's? It
is often stated that, under federal law, the limitations
period begins to run “when the plaintiff knows
or has reason to know that the act providing the basis of his
or her injury has occurred.” Cooey v.
Strickland, 479 F.3d 412, 416 (6th ...