United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART CORRECT CARE SOLUTIONS DEFENDANTS' MOTION TO DISMISS
PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE
V. PARKER U.S. DISTRICT JUDGE.
lawsuit arises from Plaintiff Vladimir Stojcevski's
incarceration in the Macomb County Jail in June 2014.
Plaintiff alleges that during his incarceration, Defendants
were deliberately indifferent to his serious medical needs in
violation of his Eighth Amendment rights under 42 U.S.C.
§ 1983. He also alleges that Defendants' conduct
amounted to gross negligence in violation of Michigan law.
Presently before the Court is a motion to dismiss filed
pursuant to Federal Rule of Civil Procedure 12(b)(6) by
Defendant Correct Care Solutions (“CCS”) and
certain individuals employed by CCS (collectively “CCS
Defendants”). The motion has been fully briefed.
Finding the facts and legal arguments sufficiently developed
in the parties' briefs, the Court is dispensing with oral
argument pursuant to Eastern District of Michigan Local Rule
Standard for Motion to Dismiss
motion to dismiss pursuant to Rule 12(b)(6) tests the legal
sufficiency of the complaint. RMI Titanium Co. v.
Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir.
1996). Under Federal Rule of Civil Procedure 8(a)(2), a
pleading must contain a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” To survive a motion to dismiss, a complaint
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 Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint
does not “suffice if it tenders ‘naked
assertions' devoid of ‘further factual
enhancement.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 557).
Supreme Court provided in Iqbal and
Twombly, “[t]o 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.'” Id. (quoting 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.” Id. (citing
Twombly, 550 U.S. at 556). The plausibility standard
“does not impose a probability requirement at the
pleading stage; it simply calls for enough facts to raise a
reasonable expectation that discovery will reveal evidence of
illegal [conduct].” Twombly, 550 U.S. at 556.
deciding whether the plaintiff has set forth a
“plausible” claim, the court must accept the
factual allegations in the complaint as true. Erickson v.
Pardus, 551 U.S. 89, 94 (2007). This presumption is not
applicable to legal conclusions, however. Iqbal, 556
U.S. at 668. Therefore, “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. (citing
Twombly, 550 U.S. at 555).
the court may not consider matters outside the pleadings when
deciding a Rule 12(b)(6) motion to dismiss. Weiner v.
Klais & Co., Inc., 108 F.3d 86, 88 (6th Cir. 1997)
(citing Hammond v. Baldwin, 866 F.2d 172, 175 (6th
Cir. 1989)). A court that considers such matters must first
convert the motion to dismiss to one for summary judgment.
See Fed. R. Civ. P 12(d). However, “[w]hen a
court is presented with a Rule 12(b)(6) motion, it may
consider the [c]omplaint and any exhibits attached thereto,
public records, items appearing in the record of the case and
exhibits attached to [the] defendant's motion to dismiss,
so long as they are referred to in the [c]omplaint and are
central to the claims contained therein.” Bassett
v. Nat'l Collegiate Athletic Ass'n, 528 F.3d
426, 430 (6th Cir. 2008). Thus, a court may take judicial
notice of “other court proceedings” without
converting a motion to dismiss into a motion for summary
judgment. Buck v. Thomas M. Cooley Law Sch., 597
F.3d 812, 816 (6th Cir. 2010) (citing Winget v. J.P.
Morgan Chase Bank, N.A., 537 F.3d 565, 575 (6th Cir.
Factual and Procedural Background
arrived at the Macomb County Jail on June 11, 2014. (Compl.
¶ 1.) On intake, Plaintiff was measured as being
5'6” in height and 165 pounds in weight.
(Id. ¶ 44.) His blood pressure was 110/84, his
pulse rate was 64, and his temperature was normal.
(Id.) Prior to his incarceration, Plaintiff had been
prescribed 600 mg. Neurontin TID, 2 mg. Klonopin TID, and
5/325 mg. Norco. (Id.) Plaintiff alleges that
Lawrence Sherman, M.D. (“Dr. Sherman”) chose to
prescribe a less expensive medication in lieu of Neurontin
and failed to determine the correct dosage or to prescribe a
loading dose for this new medication. (Id. ¶
57.) Dr. Sherman is the Medical Director of the Macomb County
Jail and a CCS employee. (Id. ¶ 22.) Defendant
Macomb County contracted with CCS to provide medical care and
services at the jail. (Id. ¶ 19.)
his arrival at the Macomb County Jail, Plaintiff was placed
in a holding cell and then transferred to the “day
room” for approximately two days. (Id.) On or
about June 13, 2014, he was placed in the jail's
Detoxification Unit. (Id.) Plaintiff remained in the
unit until approximately 8:34 a.m. on June 17, 2014.
(Id. ¶ 45.) Four hours later, he was
transferred to a cell in the jail's Mental Health Unit.
(Id.) He was moved around cells within the Mental
Health Unit over the next thirty-two hours. (Id.)
around 9:00 p.m. on June 18, 2014, Plaintiff was moved to a
“step-down” cell in the Medical Unit, where he
remained for about three days. (Id. ¶ 46.) He
stayed in two different cells during this period.
(Id.) He was moved to the Mental Health Unit on June
21, where he remained until 8:39 p.m. on June 23, 2014.
(Id. ¶ 50.) Early in the evening on June 23,
Plaintiff was transported to McLaren Medical Center.
(Id.) Upon his arrival at the hospital, Plaintiff
was diagnosed as suffering from the following: (a) systemic
inflammatory response syndrome criteria with possible sepsis;
(b) acute peritoneal cellulitis; (c) muscular edema secondary
to infections versus inflammation of the bilateral gluteus
maximus muscle group; (d) acute encephalopathy; (e) possible
rectal mucosal tear secondary to anal trauma; (f) increased
white blood cell count; (g) acute intractable rectal and
abdominal pain; (h) sacral wound; and (i) low potassium.
(Id. ¶ 60.)
to his hospitalization, while at the Macomb County Jail,
Plaintiff had seizures accompanied by vomiting spells and
bowel incontinence from about June 11-15, 2014. (Id.
¶ 51.) Plaintiff alleges that he requested the
opportunity to clean the vomit and stool from his body, but
his requests were denied. (Id. ¶ 54.) He also
alleges that he requested, but was denied, an examination of
his lower extremity for injury or disease. (Id.)
to Plaintiff, several CCS Defendants “knew of the
extremely unsanitary conditions existing in [his] cell, and
disregarded the serious risk of harm caused by those
conditions, knowing that such unsanitary conditions can lead
to, or contribute to, infectious processes developing or
worsening to the point where hospitalization would be
necessary ….” (Id.) Specifically,
Plaintiffs identifies those defendants as LPNs Deeann Pavey,
Cynthia Deview, Vicki Bertram, Dinal Good, Sarah Breen, Dixie
Debenne, Amber Barber, and Linda Parton. (Id.)
Plaintiff alleges that he, in fact, suffered physical and
mental injury as a result of being refused medical care and
the ability to cleanse his body to remove the vomit and feces
on his upper and lower extremities. (Id. ¶ 58.)
Sherman instituted an Alcohol or Sedative Hypnotic Withdrawal
for Plaintiff from June 15-20, 2014. (Id.
¶¶ 4, 48.)
19, 2014, Plaintiff was weighed by CCS Defendants Temittipe
Olagbaiye, RN, and Deeann Pavey, LPN. (Id. ¶
48.) He weighed 136 pounds, or 29 pounds less than his
recorded weight at intake. (Id.) Plaintiff alleges
that this weight loss was significant and posed a serious
risk of harm to him, yet no action was taken by these nurses.
(Id.) On June 22, 2014, Plaintiff complained of a
“racing” heart rate-presumably to CCS Defendant
Vicki Bertram, LPN-who Plaintiff asserts did not contact a
physician. (Id. ¶ 52.)
Complaint, filed June 9, 2017, Plaintiff names the County of
Macomb, certain individuals employed by Macomb County, CCS,
and the following CCS employees as Defendants: (a) Dr.
Sherman; (b) RN Olagbaiye; (c) Health Services Administrator
David Art, RN; (d) Director of Nursing Monica Cueny, RN; and
(e) LPNs Pavey, Deview, Bertram, Good, Breen, Debenne,
Barber, and Parton. In response to the CCS Defendants'
motion to dismiss, Plaintiff stipulates to the dismissal of
his claims against LPNs Barber, Breen and Debenne. (Pl.'s
Resp. Br. at 6, ECF No. 39 at Pg ID 263.)
Complaint, Plaintiff alleges that Dr. Sherman was a
supervisor and policy maker for CCS. (Compl. ¶ 22.)
Plaintiff seeks to hold CCS, Dr. Sherman, and RNs Art and
Cueny liable for maintaining unconstitutional policies and
practices for managing inmates suffering from the signs and
symptoms exhibited by Plaintiff and for failing to properly
train the medical staff to provide constitutionally
sufficient medical care. (Id. ¶¶ 77-84;
91-97.) Plaintiff specifically identifies a failure to train
staff to monitor inmates' food and water intake and to
identify dehydration and malnourishment. (Id.)
Plaintiff identifies two previous jail inmates, David
Stojcevski (Plaintiff's brother) ...