United States District Court, E.D. Michigan, Northern Division
ORDER GRANTING IN PART MOTION FOR LEAVE TO FILE
SECOND AMENDED COMPLAINT AND DENYING MOTION TO DISMISS AS
L. LUDINGTON UNITED STATES DISTRICT JUDGE.
November 1, 2017, Plaintiff David Lashuay filed a complaint
against a variety of medical staff and medical providers
alleging that they were deliberately indifferent to his
medical needs while he was incarcerated by the Michigan
Department of Corrections. ECF No. 1. On November 10, 2017,
and before any Defendants were served, Lashuay filed an
amended complaint which made minor factual clarifications and
corrected several clerical errors. ECF No. 4. On the same
day, Lashuay filed two ex parte motions for leave to commence
limited discovery immediately. ECF Nos. 5, 6. Those motions
have been denied without prejudice because Lashuay did not
identify good cause for premature discovery. ECF No. 42.
December 8, 2017, the served Defendants filed a motion to
dismiss. ECF No. 26. Several weeks later, Lashuay attempted
to file a second amended complaint addressing certain of the
arguments Defendants make in their motion to dismiss. In
their reply brief in support of their motion to dismiss,
Defendants explain that, pursuant to Federal Rule of Civil
Procedure 15, Lashuay was required to obtain leave of the
Court before filing a second amended complaint. ECF No. 38.
The next day, Lashuay filed a motion for leave to file an
amended complaint. ECF No. 39. In that motion, Lashuay admits
that the second amended complaint was improperly filed.
Id. at 3. Lashuay further indicated that,
“[u]pon reviewing the Corizon Defendants' motion,
Plaintiff determined that his gross negligence claims were
not viable and further that he should have included a
municipal liability claim against Defendant Corizon
health.” Id. Lashuay seeks leave to file a
second amended complaint to remedy those shortcomings.
Defendants oppose the motion to amend, arguing that Lashuay
has repeatedly failed to correct deficiencies in his
pleadings and also that the amendment would be futile as to
the allegations against Defendant Corizon. For the reasons
provided below, Lashuay's motion to file an amended
complaint will be granted in part. Because the second amended
complaint will moot the arguments Defendants advance in their
motion to dismiss, that motion will be denied as moot.
Court has previously summarized the allegations in the
amended complaint. That summary will be reproduced here. Then
the changes in the proposed second amended complaint will be
first amended complaint alleges that, on July 9, 2014,
Lashuay suffered third degree burns on 49% of his body
because of an explosion in Otsego County, Michigan. Am.
Compl. at 10, ECF No. 4. Lashuay was treated at the Hurley
Hospital Burn Unit in Flint Michigan for many weeks.
Id. On October 16, 2014, Lashuay was released from
Hurley Hospital and into the custody of the Michigan
Department of Corrections. Id. He remained in MDOC
custody until September 1, 2016, when he was released on
claims arise out of the MDOC's alleged deliberate
indifference to his medical needs upon his release from
Hurley Hospital. He contends that, when released into MDOC
custody, “Hurley hospital recommended additional skin
grafts and surgery to release contractures caused by the
burns, with a re-visit at their Burn Unit in 2 weeks to
evaluate for planned surgeries.” Id. at 10-11.
to Lashuay, MDOC medical personnel “assured the Hurley
Hospital medical staff that all of Plaintiff's medical
needs would be met, ” but failed to fulfill that
promise. Id. at 11. Specifically, Lashuay contends
that, “[u]pon arrival at [MDOC's Dwayne Waters
Hospital (DWH)], Plaintiff had open wounds requiring daily
dressing changes and application of medications.”
Id. Despite his condition, he was “placed in
isolation for 30 days.” Id. He alleges that,
during his incarceration, he received “minimal or no
wound care.” Id. Rather, Lashuay was
“required to attend to his daily wound-care needs,
dressing changes and medication application with no or
minimal assistance from healthcare staff.” Id.
He alleges that he was “frequently not provided with
adequate supplies to change his wound dressing and had to
resort to tearing up garbage bags to cover some of the open
wounds.” Id. at 11-12.
alleges that “[t]here are numerous notations in the
RN's and NP and other defendant medical provider records
indicating that Plaintiff was doing his own wound care and
asking for help ‘if needed' however, [sic] there is
only 1-2 records of any medical provider actually providing
any assistance with wound care.” Id. at 12.
The Defendants “merely documented the existing oozing
wounds, new open wounds, failed skin grafts, and reopened
wounds”; they did not take “any action to provide
wound care, continuing to leave it to Plaintiff with
inadequate supplies.” Id.
contends that, as a result of Defendants' “failure
to provide medically necessary wound care and supplies,
” he suffered medical complications “most or all
of which would not have occurred with professional wound
care.” Id. He further alleges that, as a
result of his “continued and new wounds, ”
necessary surgery and physical therapy was delayed and
denied. Id. Specifically, Lashuay alleges that, on
or around January 2015, the Hurley Hospital recommended that
he undergo surgery. Id. at 14. Despite that
recommendation, “[i]n January 2015, and continuing
thereafter, Defendants denied Hurley's recommendation for
now contends that he is “severely disabled in the use
of his right hand and his range of motion in his neck and
other body parts is severely restricted and he suffered
extreme pain throughout his” incarceration “and
continuing to the present.” Id. at 12-13. He
alleges that the “Hurley Burn Clinic
professionals” have advised him that “it is too
late for there to be any reasonable chance that the surgery
would help.” Id. at 13.
their identities and roles are relevant to Lashuay's
request for expedited discovery, the Defendants named in the
amended complaint will be briefly identified. Aimee Delilne
“was the first RN to see Plaintiff upon his arrival at
DWH . . . and provided nursing care per records throughout
his stay there.” Id. at 2-3. FNU Trout
“was the ‘wound care nurse' at DWH who was
notified of Plaintiff's arrival and reportedly evaluated
Plaintiff upon arrival for necessary wound care
services.” Id. at 3. FNU Wetzel “was
from physical therapy services at DWH and reportedly
evaluated Plaintiff for physical therapy needs and prescribed
or oversaw Plaintiff's physical therapy services while in
custody of MDOC.” Id. Gary Duncan “was
one of the 4 providers involved in Plaintiff's transfer
and intake into DWH and provided or supervised care on
various occasions thereafter.” Id. at 3-4.
Mollie Klee, Lorraine Vanbergen, Timothy Zeigler, and
Kimberly Dunning-Meyers provided nursing care to Lashuay
throughout his incarceration. Id. at 4-5. Tana Hill
and Jennifer Wierman provided medical services to Lashuay and
oversaw the nursing care and wound management efforts.
Id. at 4, 7.
Keith Papendick, the “Regional Medical Director for
Corizon Health and/or the MDOC, ” was responsible for
“approving or denying specialty services, such as
physical therapy, assistive or therapeutic devices, surgical
consult and surgery” to MDOC patients. Id. at
5. Scott Weaver was responsible for “providing physical
therapy services to inmate patients” at DWH.
Id. at 6. Danielle Alford “saw Plaintiff upon
admission to DWH and indicated in her care plan that
Plaintiff would provide his own wound care.”
Id. at 6-7. Dr. Terence Whiteman saw Lashuay when
initially incarcerated and “approved Plaintiff being
required to provide his own wound care.” Id.
at 7. Lynn Larson “was involved in responding to
Plaintiff's requests for recommended surgery and
following upon on or noting the responses thereto by other
Defendants.” Id. at 8. Dr. Muhammad Rais
“oversaw Plaintiff's care beginning 7/8/15 . . .
until his release from MDOC custody.” Id.
William Borgerding “denied Plaintiff pain and burn care
medications.” Id. And Defendant Corizon
Health, Inc., “employed or contracted with some or all
of the individual medical providers named as
Defendants.” Id. at 9.
the amended complaint identifies two John Does. According to
Lashuay, John Doe 1 “is the Chief Medical Officer for
the MDOC . . . who is responsible for approving or denying
corrective and reconstructive surgical procedures and for all
other inmate medical services.” Id. at 6. John
Doe 2 is the Assistant Chief Medical Officer at DWH and
“denied or failed to take adequate measures to provide
Plaintiff with medically necessary surgery, pain management,
wound care and physical therapy.” Id. at 8-9.
proposed second amended complaint names the same Defendants.
It does, however, include two new paragraphs of factual
allegations. The first addition relates to Hurley
Hospital's initial release of Lashuay into MDOC's
custody. Lashuay alleges: “Hurley Hospital's
release of Plaintiff into MDOC custody at DWH was
specifically conditioned on MDOC/Corizon's agreement to
carry out the plan of treatment outlined by Hurley
Hospital.” Prop. Sec. Am. Compl. at 11, ECF No. 39, Ex.
A. The second new allegation relates to the permanent
consequences of the alleged deliberate indifference:
Plaintiff was permanently harmed by the lack of medically
necessary and adequate wound care including failed skin
grafts, opening of new wounds, scarring, the development of
cords, bands and contractures which restrict his movement,
the inability to use compression garments which would have
avoided same and preserved the option for ...