United States District Court, E.D. Michigan, Southern Division
ORDER ACCEPTING REPORTS AND RECOMMENDATIONS AND
DISMISSING PLAINTIFF'S CAUSE OF ACTION
PAGE HOOD CHIEF JUDGE.
December 28, 2016, Plaintiff Basil Perry filed this action
pursuant to 42 U.S.C. § 1983, alleging violations of his
Eighth and Fourteenth Amendment rights. On April 19, 2017,
Defendant Corizon Health, Inc. (“Corizon”) filed
a Motion to Dismiss (Doc No.18), which was fully briefed.
Magistrate Judge David R. Grand issued a Report and
Recommendation on Corizon's motion on June 13, 2017. (Doc
No. 25) Plaintiff filed objections with respect to the Report
and Recommendation on Corizon's motion on July 12, 2017,
and Defendant filed a response to Plaintiff's objections
on July 13, 2017. On June 2, 2017, Defendant Patricia A.
Carter (“Carter”) filed a Motion to Dismiss (Doc.
No. 23), which was fully briefed. Magistrate Judge Grand
issued a Report and Recommendation on Carter's motion on
July 21, 2017. (Doc. No. 29) No objections were filed with
respect to Carter's motion. The Court will address
separately each Motion to Dismiss.
Motion to Dismiss
Magistrate Judge recommends that the Court grant
Corizon's Motion to Dismiss for the following reasons:
(a) Corizon cannot be held vicariously liable for the
constitutional violations of its agent on basis of respondeat
superior; (b) Plaintiff did not allege sufficient facts to
demonstrate that Corizon took deliberate action to violate
his federal rights; and (c) Plaintiff did not allege
sufficient facts to demonstrate an “affirmative link
between the policy” of Corizon and the
objects to the Magistrate Judge conclusions that: (1) there
was no deliberate action by Corizon; (2) Plaintiff did not
assert a policy or practice that violated his constitutional
right; and (3) respondeat superior is inapplicable to the
case. With respect to the first two objections, courts have
held that a plaintiff must establish that a defendant had a
policy, practice, or custom that resulted in the deprivation
of constitutional rights. See, e.g., Jones v. Prison
Health Servs., No. 11-CV-12134, 2011 WL 7630364, at *2
(E.D. Mich. Dec. 14, 2011), report and recommendation
adopted, No. 11-12134, 2012 WL 1048604 (E.D. Mich. Mar. 28,
2012). See also Garner v. Memphis Police Dep't,
8 F.3d 358, 364 (6th Cir. 1993) (“to satisfy the
Monell requirements a Plaintiff ‘must identify
the policy, connect the policy to the city itself and show
that the particular injury was incurred because of the
execution of that policy. . .”). There must be an
“affirmative link between the policy and the particular
constitutional violation.” Jones, 2012 WL
1048604, at *2. A plaintiff may not rely upon an isolated
incident to establish this theory; he or she must show a
pattern or repeated evidence of such conduct. See Thomas
v. City of Chattanooga, 398 F.3d 426, 432-33 (6th Cir.
present case, Plaintiff has not asserted any policy,
practice, or custom of Corizon that violated his federal
rights. Esch v. County of Kent, 2016 U.S. Dist.
LEXIS 132069, at *11 (W.D. Mich. Sept. 27, 2016). Plaintiff
has failed to allege any facts showing that Corizon
“was aware of prior unconstitutional actions by its
employees and failed to take corrective measures.”
Miller v. Calhoun Cnty., 408 F.3d 803, 815-16 (6th
Cir. 2005). Plaintiff has failed to allege how Corizon
deliberately acted or was deliberately indifferent to
Plaintiff's constitutional rights. Simply disagreeing
with the treatment he received does not establish that
Corizon had an unconstitutional policy, practice or custom.
See, e.g., Williams v. Mehra, 186 F.3d 685, 691 (6th
Cir. 1999) (citation omitted). Absent evidence of a
constitutional violation, Plaintiff's claim fails as a
matter of law.
the third objection, Plaintiff argues that respondeat
superior applies because an employer or principal is liable
for its employees or agents. (Doc No. 27 Pg. ID 151) This
argument is not persuasive because “Congress did not
intend municipalities to be held liable unless action
pursuant to official municipal policy of some nature caused a
constitutional tort. A municipality cannot be held liable
solely because it employs a tortfeasor-or, in other words, a
municipality cannot be held liable under § 1983 on a
respondeat superior theory.” Monell v. Dep't of
Soc. Servs. of City of N.Y., 436 U.S. 658, 691 (1978).
Sixth Circuit has held that like a municipal corporation, a
private 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 not articulated any facts showing
that the alleged denial of proper treatment was the result of
a policy to deny prostate treatment to prisoners. The Court
concludes that Corizon is not liable under the doctrine of
respondeat superior for the actions of Carter.
Court has had an opportunity to review Corizon's Motion
to Dismiss (and the related response and reply) and finds
that the Magistrate Judge reached the correct conclusions for
the proper reasons. Finding no error in the Magistrate
Judge's Report and Recommendation regarding Corizon's
Motion to Dismiss (Doc. No. 25), the Court adopts the Report
and Recommendation (Doc. No. 25) in its entirety.
Motion to Dismiss
Court has had an opportunity to review Carter's Motion to
Dismiss (and the related response) and finds that the
Magistrate Judge reached the correct conclusions for the
proper reasons. Finding no error in the Magistrate
Judge's Report and Recommendation regarding Carter's
Motion to Dismiss (Doc. No. 29), the Court adopts the Report
and Recommendation (Doc. No. 29) in its entirety.
Furthermore, as neither party has raised an objection to that
Report and Recommendation (Doc. No. 29), the Court finds that
the parties have waived any further objections to the Report
and Recommendation (Doc. No. 29). Smith v. Detroit
Federation of Teachers Local 231, 829 F.2d 1370, 1373
(6th Cir. 1987) (a party's failure to file any objections
waives his or her right to further appeal); Thomas v.
Arn, 474 U.S. 140, 149 (1985).
no error in the Magistrate Judge's Reports and
Recommendations (Doc. Nos. 25 and 29), the Court adopts the
Reports and Recommendations as this Court's findings of
fact and conclusions of law with respect to both
Corizon's Motion to Dismiss and Carter's Motion to
Dismiss and GRANTS both motions. As there are no remaining
Defendants, the Court dismisses Plaintiff's cause of
reasons stated above, IT IS ORDERED that the
Report and Recommendation regarding Corizon's Motion to
Dismiss [Docket No. 25, filed June 13, 2017] is
ADOPTED as ...