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Milkiewicz v. Genesee County

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

April 19, 2019

MARK MILKIEWICZ, PERSONAL REPRESENTATIVE OF THE ESTATE OF KERRIE MILKIEWICZ, DECEASED, Plaintiff,
v.
GENESEE COUNTY, SHERIFF ROBERT PICKELL, OFFICER ERIC EARNS, DEPUTY RYAN STRAUSS, DEPUTY ANDREA WILLIAMS, DEPUTY ANDREW LANGDON, SGT. MACEY, DEPUTY MERCER, DEPUTY SWAIN, DEPUTY ALEXANDER CONLEY, DEPUTY MCINTOSH, COURT OFFICER GANSEN, JOHN AND JANE DOE CORRECTIONS OFFICERS 1-3, DR. DENNIS LLOYD, NURSE E. WELLS, NURSE ANDREA, NURSE THERESA, CORIZON CORRECTIONAL HEALTHCARE and PRISON HEALTH SERVICES, INC. Individually and Officially and Jointly and Severally, Defendants.

          ANTHONY P. PATTI UNITED STATES MAGISTRATE JUDGE

          OPINION AND ORDER 1. GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT (ECF #73) 2. DENYING AS MOOT DEFENDANTS LLOYD, WELLS, ANDREA. THERESA, AND CORZION HEALTH SERVICES, INC.'S (F/K/A PRISON HEALTH SERVICES) MOTION TO DISMISS FIRST AMENDED COMPLAINT (ECF #36)

          PAUL D. BORMAN UNITED STATES DISTRICT JUDGE

         I. BACKGROUND

         Before the Court is Plaintiff Mark Milkiewicz's Motion for Leave to File Second Amended Complaint. (ECF #73.) Plaintiff brings this action as the Personal Representative of the Estate of Kerrie Milkiewicz ("Milkiewicz"), a woman who died while incarcerated in the Genesee County Jail ("GC J"). (Am. CompL, ECF #22, ¶¶6, 31, 47.) Milkiewicz passed away while suffering from high blood pressure and alcohol withdrawal (specifically, delirium tremens), which allegedly remained unaddressed by Defendants over a period of five days. (Id. at ¶¶4l, 47.)

         On September 15, 2017, Plaintiff filed his Complaint. (ECF #1.) On July 27, 2018, the Court entered a Stipulated Order allowing Plaintiff to file a First Amended Complaint. (ECF #21.) Also on July 27, 2018, Sheriff Robert Pickell was dismissed from this matter by Stipulated Order. (ECF #20.) Plaintiff filed his First Amended Complaint on August 2, 2018, which added Defendants Corizon Health, Inc. (f/k/a Prison Health Services, Inc.) and its employees Dr. Lloyd, and Nurses Wells, Andrea and Theresa (collectively, "Corizon Defendants"), among others. (ECF #22). The four-count First Amended Complaint alleged as follows:

Count I- "Deliberate Indifference Violation of Civil Rights Pursuant to 42 USC §1983" (All Defendants except Genesee County and Sheriff Pickell)
Count II - "Cruel and Unusual Punishment in Violation of the 4th, 8th and 14th Amendments" (All Defendants except Genesee County and Sheriff Pickell)
Count III- "42 USC §1983 - Monell Liability" (Genesee County, Sheriff Pickell, Corizon, Prison Health Services, and Defendants in their Official Capacities)
Count IV - "State Law Claims of Negligence, Gross Negligence, and/or Wanton and Willful Misconduct" [Presumably all Defendants, as the Count does not specify].

(Am. Compl., ECF #22.)

         On September 10, 2018, the Corizon Defendants filed a Motion to Dismiss Plaintiffs Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF #36.) Plaintiff filed his Response on October 1, 2018, requesting leave to file a second amended complaint if Defendants' Motion to Dismiss was to be granted. (ECF #42.) Plaintiff did not attach a proposed second amended complaint, as required by Local Court Rule 15.1. On October 12, 2018, Defendants filed their Reply. (ECF #51). In his Response, Plaintiff agreed to drop all Monell claims against the individual Corizon Defendants. (Oct. 1, 2018, PL's Resp. to Defs.' Mot. to Dismiss, ECF #42, PgID 489.)

         The Court held a hearing on the Motion to Dismiss on January 23, 2019. At that hearing, Plaintiff agreed to dismiss his gross negligence claim and merge his cruel and unusual claim and deliberate indifference claim into a single count. (Tr. Jan. 23, 2019 Hr'g, Defs.' Mot. to Dismiss Am. Compl., ECF #70, 11:8-10, 20:8-9, PgID 1215, 1224.)

         On January 28, 2019, five days after the hearing on the Corizon Defendants' Motion to Dismiss and before the Court had rendered an opinion that Motion, Plaintiff filed the instant Motion for Leave to File Second Amended Complaint. (ECF #57.)

         The attached Proposed Second Amended Complaint alleges three counts:

Count I - "Deliberate Indifference Violation of Civil Rights Pursuant to 42 USC ยง1983" (All Defendants except Genesee ...

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