United States District Court, E.D. Michigan, Northern Division
CHRISTEL ZUCHOWSKI, as personal representative of the ESTATE OF MZ, Plaintiff,
ALPENA PUBLIC SCHOOLS, et al, Defendants.
ORDER GRANTING MOTION FOR LEAVE TO FILE AMENDED
COMPLAINT AND DENYING MOTION TO DISMISS
L. LUDINGTON UNITED STATES DISTRICT JUDGE.
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
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,
. 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.
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.
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.
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.
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
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.
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 ...