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Lashuay v. Delilne

United States District Court, E.D. Michigan, Northern Division

April 11, 2018

AIMEE DELILNE, et al, Defendants.



         On 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.

         On 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.[1] 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.


         The 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 identified.



         Lashuay's 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 parole. Id.

         Lashuay's 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.

         According 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.

         Lashuay 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.

         Lashuay 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 surgeries.” Id.

         Lashuay 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.

         Because 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.

         Dr. 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.

         Finally, 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.


         The 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 ...

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