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Zuchowski v. Alpena Public Schools

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

April 25, 2018

CHRISTEL ZUCHOWSKI, as personal representative of the ESTATE OF MZ, Plaintiff,
v.
ALPENA PUBLIC SCHOOLS, et al, Defendants.

          ORDER GRANTING MOTION FOR LEAVE TO FILE AMENDED COMPLAINT AND DENYING MOTION TO DISMISS

          THOMAS L. LUDINGTON UNITED STATES DISTRICT JUDGE.

         On October 12, 2017, Plaintiff Christel Zuchowski filed a complaint which named Alpena Public Schools, Sara Zimmerman, Keith Klimczak, and Rosemary Klimczak as Defendants. ECF No. 1. Keith and Rosemary Klimczak answered on November 6, 2017. ECF No. 7. Sara Zimmerman answered on November 21, 2017. ECF No. 8. And Defendant Alpena Public Schools answered on November 27, 2017. ECF No. 9. On December 10, 2017, Zuchowski filed a motion for leave to file an amended complaint. ECF No. 11. The proposed amended complaint clarifies that “the basis of jurisdiction against the Klimczaks” is supplemental jurisdiction and corrects an error in the numbering of paragraphs. Id. at 3. Sara Zimmerman has indicated that she does not oppose the motion. ECF No. 13. The Klimczaks oppose the motion, arguing that supplemental jurisdiction does not exist because the claims Zuchowski advances against the other Defendants arise out of a different nucleus of fact compared to her claim against the Klimczaks. On December 20, 2017, Keith and Rosemary Klimczak filed a motion to dismiss the claim advanced against them, relying upon the same jurisdictional arguments. For the following reasons, the motion for leave to file an amended complaint will be granted, and the motion to dismiss will be denied.

         I.

         A.

         At the pleading stage, all well-pleaded allegations are assumed to be true. Christel Zuchowski is bringing suit as the personal representative of the estate of her daughter, MZ.[1] . This suit involves events that occurred in the fall of 2014. Compl. at 2, ECF No. 1. Plaintiff alleges that MZ died by asphyxiation on October 17, 2014, after wrapping part of a rope swing around her neck. Id. at 1. At the time of her death, MZ was a seventh grade student at Thunder Bay Junior High School. Id. at 2. MZ was an average student who exhibited several “issues of concern during the fall of 2014.” Id. Zuchowski alleges that inaction by Sara Zimmerman and the Alpena Public Schools in response to those issues proximately caused MZ's death. Zuchowski additionally argues that negligence by the family's landlords, Keith and Rosemary Klimzcak, proximately caused MZ's death.

         Plaintiff alleges that, “[a]bout a week before [MZ]'s suicide, [MZ] came to school in obvious distress, claiming she couldn't sleep due to a fight between her parents at home.” Id. at 3. “School personnel gave her food and allowed her to nap in a school office, ” but did not notify MZ's parents or Child Protective Services. Id. Two days before MZ's death, she “put her head down in the school cafeteria, ” “appeared very sad, ” and “told a friend she wanted to kill herself.” Id. MZ's friend immediately told a school counselor, Defendant Sara Zimmerman, about the incident. Id. Soon after, MZ's friend returned to Zimmerman and informed her that MZ “was ‘joking.'” Id. MZ also personally approached Zimmerman and stated that, although she was sad, she was not suicidal. Id. Zimmerman told MZ that “if she did feel suicidal, to come and talk to her.” Id. Zimmerman did not contact MZ's family or child protective services, and likewise did not document the incident or inform school administrators. Id. The next day (one day before MZ's death), “a different teacher noticed that [MZ] had come to school looking ‘rough.'” Id. MZ told the teacher that she had a fight with her best friend. Id. The teacher did not take further action. Id.

         B.

         On the evening of October 17, 2014, MZ was home with her mother and sisters. Sometime before dark, MZ walked into the backyard and began “talking with a friend on her cell phone.” Id. at 3. While on the phone, MZ walked up to a rope “looped into a U-shape” which was hanging from a tree “in an apparent attempt to make a swing.” Id. at 4. A “piece of green rubberized material about a foot to a foot-and-a-half-long” was wrapped around the rope. MZ “placed her neck on the rubberized tube at the bottom of the loop and began twisting” the rope and tube around her neck. Id. As MZ tightened the rope, she continued talking to her friend on the phone. Id. “According to the police report of [MZ's] death, the friend said ‘it sounded like something was lightly banging against the phone. He said it kept hitting the phone every few seconds. . . . He then heard [MZ] wheezing and a few seconds later, it sounded like the phone dropped and hit the ground.” Id.

         MZ's younger sister witnessed the incident. Id. She told police that “she saw [MZ] put the rope around her neck and begin spinning around.” Id. MZ's sister begged her to stop, but MZ refused. Id. MZ's friend heard MZ's sister screaming and crying over the phone. Eventually, his phone died, and he “went to the football game.” Id. MZ's mother and grandmother found MZ unresponsive on the ground beneath the swing. Id. Resuscitation efforts were unsuccessful. Id.

         C.

         After an autopsy, the medical examiner concluded that MZ's death was accidental because she did not leave a suicide note and because of “her cognition level at age 12.” Id. at 5. After MZ's death, “her peers approached school personnel and her parents and indicated that [MZ] was being bullied.” Id. MZ's parents had been unaware of the bullying. Id. The superintendent for the Alpena Public Schools, Brent Holcomb, expressed concern to police over Zimmerman's “lack of follow-up.” Id. Zimmerman was eventually suspended.

         D.

         Count One of the complaint advances a claim of deliberate indifference to serious medical needs against Zimmerman. Count Two frames a Monell municipal liability claim against the Alpena Public Schools. Plaintiff faults the Alpena Schools for failing to “take proactive steps” like training its employees to recognize warning signs and notify parents. Id. at 5-6. Plaintiff also criticizes the teachers and administrators who noticed warnings signs the week before MZ's death: “While these officials may have been kind in the moment to [MZ], they did nothing to document these situations, notify parents, notify authorities, compare notes, or otherwise act proactively to recognize and respond to a child in acute distress and on the verge of taking her own life.” Id. at 6.

         Count Three of the complaint charges Keith and Rosemary Klimczak with negligence. Plaintiff alleges that the swing on which MZ hung herself was “installed and/or knowingly maintained by the Klimczak” and was “obviously and inherently dangerous.” Id. at 4, 8. According to Plaintiff, the swing had been “constructed without a permit, notice, or approval by government building inspectors or officials” and was noncompliant with “applicable ordinance[s] or code.” Id. at 9. “Christel Zuchowski asked their landlords, defendants Keith and Rosemary Klimczak, numerous time to remove the hazard. The landlords never complied. Christel and Parry hesitated to take it down themselves because it was a rental and not their property.” Id. at 4. Plaintiff alleges that, by ...


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