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Alemarah v. General Motors

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

July 10, 2019

Nosoud Alemarah, Plaintiff,
General Motors, Defendants.



         This matter is presently before the Court on the motions for summary judgment filed by defendants Washtenaw County and Correct Care Solutions, LLC [docket entries 39 and 41]. Plaintiff has filed responses in opposition, and defendants have replied. On March 6, 2019, a hearing was held and oral argument was heard. During the hearing, the Court ordered supplemental briefing, which the parties have submitted.


          This is a § 1983 case involving allegations of sexual assault, battery, and harassment at a jail. Plaintiff was incarcerated at the Washtenaw County Jail (the “Jail”) and alleges that on the evening of December 17, 2015, she was summoned to the medical clinic by defendant Percival Kuizon, a nurse at the Jail, although she had not requested an appointment. Compl. ¶ 15; Pl.'s Dep. at 32. According to plaintiff, Kuizon led her to an examination room that “was not recorded by camera.” Compl. ¶ 16. Plaintiff states that Kuizon then kissed her without her consent and forced her to perform oral sex on him. Id. ¶¶ 17-18; Pl.'s Dep. at 31. No. one else was in the room, such as a supervisor or a corrections officer. Pl.'s Dep. at 33; Kuizon Dep. at 52, 74; Holmes Dep. at 34-35; Kunath Dep. at 46-48; Casey Dep. at 35. Kuizon was an employee of defendant Correct Care Solutions, LLC (“CCS”), a private entity that contracts with defendant Washtenaw County (the “County”) to provide medical services at the Jail. Def. Cty.'s Ex. 12.[1]

         Prior to the incident at the medical clinic, Kuizon had winked and mouthed “I love you” to plaintiff at least ten times while passing out medications. Pl.'s Dep. at 27-29. Plaintiff testified that he did this to other inmates, “so I am pretty sure it was kind of known.” Id. at 28. She characterized this behavior as “harmless.” Id. After the incident, Kuizon “continue[d] to sexually assault and harass” plaintiff by sending her cards and letters. Compl. ¶ 19; Pl.'s Dep. at 38. Plaintiff never reported Kuizon's behavior or the clinic incident or his correspondence to anyone at the Jail. Pl.'s Dep. at 27, 30, 33, 39, 75. She testified that she had no knowledge of reports by other inmates regarding Kuizon's conduct while dispensing medications. Id. at 75-76. Kuizon does not dispute that a sexual encounter took place between him and plaintiff, but he states that plaintiff “initiated the whole engagement” and that he never forced himself on her. Kuizon Dep. at 68-69. He does not deny sending her cards and letters he signed with a pseudonym. Id. at 89; Def. CCS's Ex. E.

         The County and CCS learned about the December 17 incident between Kuizon and plaintiff on January 14, 2016, when a female inmate by the name of Ke-Ashia Collins disclosed it to a corrections officer. Boivin Dep. at 34, 40; Def. CCS's Ex. B at 5. The County immediately reported it to the Washtenaw County Sheriff's Office, which oversees the Jail, and the case was assigned to Detective Thomas Boivin. Boivin Dep. at 33. On the same day the incident was reported, Boivin interviewed Collins and plaintiff. Id. at 40-41, 48; Def. CCS's Ex. B at 6-7. He attempted to interview Kuizon, but Kuizon refused to speak to him without an attorney. Def. CCS's Ex. B at 5. Boivin and a corrections officer then escorted Kuizon out of the building and revoked his security clearance. Boivin Dep. at 73; Casey Dep. at 27; Holmes Dep. at 27-30; Def. CCS's Ex. B at 5. CCS terminated Kuizon's employment effective the next day, January 15, 2016. Kuizon Dep. at 73; Holmes Dep. at 26-27; Def. CCS's Ex. L (PageID.929).

         Boivin conducted a criminal investigation and produced a written report that was forwarded to the prosecutor's office. Boivin Dep. at 7-8; Def. CCS's Ex. B. Kuizon was charged with second degree criminal sexual conduct and, after pleading no contest, sentenced to six months in jail and five years of probation. Compl. ¶ 22; Kuizon Dep. at 70-71; Boivin Dep. at 69; Def. CCS's Ex. B at 20. After the Sheriff's Office completed its criminal investigation, Sheriff's Captain Randy Casey, the deputy jail administrator, conducted a review of that office's policies.[2]Casey Dep. at 9, 40; Kunath Dep. at 13. He determined that there were no policy violations and no processes or procedures to improve. Kunath Dep. at 14-15.

         In August 2017, plaintiff filed this action against Kuizon, the County, CCS, and four unidentified corrections officers. In Count I, plaintiff alleges that Kuizon violated her rights under the Fourth, Eighth, and Fourteenth Amendments. Compl. ¶¶ 23-28. In Count II, plaintiff asserts the same constitutional violations against the four unidentified corrections officers.[3] Id. ¶¶ 29-39. In Count III, plaintiff asserts a Monell claim against the County regarding its alleged failure to protect her from sexual assault, battery, and harassment, as well as its alleged failure to provide her with “prompt and immediate medical attention” for Methicillin-resistant Staphylococcus aureus (“MRSA”), a condition unrelated to the incident with Kuizon. Id. ¶¶ 40-46. In Count IV, plaintiff alleges that Kuizon committed sexual assault, battery, and harassment, for which CCS is vicariously liable. Id. ¶¶ 47-53. In Count V, plaintiff asserts state law claims of “negligence and/or gross negligence” against Kuizon and CCS. Id. ¶¶ 54-65. As to each count, plaintiff seeks damages over $75, 000 excluding costs, interest, and attorney fees, along with punitive damages. Id. at 9, 12, 16, 18, 21. She alleges that defendants' actions caused her to suffer the following injuries: sexual assault and battery; sexual harassment; MRSA; severe emotional and mental distress; humiliation, grief, and embarrassment; loss of reputation and esteem in the community; fright and shock; inability to experience social pleasures and enjoyment; and “physical manifestations” such as shaky hands, nausea, increased anxiety, headaches, crying spells, nightmares, cold sweats, loss of appetite, and sleeplessness. Id. ¶¶ 26, 37, 44, 52, 65.

         In November 2018, the County and CCS filed separate summary judgment motions. At the March 2019 hearing, summary judgment was granted for the County on the MRSA claim in Count III and for CCS on the vicarious liability claim in Count IV. For the reasons explained below, the Court shall now grant summary judgment for the County on the remainder of Count III and for CCS on Count V.

         Legal Standard

          Under Fed.R.Civ.P. 56(a), summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine dispute as to any material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). Viewing the evidence in the light most favorable to the opposing party, summary judgment may be granted only if the evidence is so one-sided that a reasonable fact-finder could not find for the opposing party. See Id. at 248-50; Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478-80 (6th Cir. 1989). In other words, “[a] material issue of fact exists where a reasonable jury, viewing the evidence in the light most favorable to the non-moving party, could return a verdict for that party.” Vollrath v. Georgia-Pacific Corp., 899 F.2d 533, 534 (6th Cir. 1990). “The pivotal question is whether the party bearing the burden of proof has presented a jury question as to each element of its case.” Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996).


          Count III - Monell Claim Against Washtenaw County

         In Count III, plaintiff asserts a municipal liability claim against the County under Monell v. Dep't of Social Servs. of the City of New York, 436 U.S. 658 (1978), on the grounds that it (1) failed to properly screen its “contractors/employees, ” (2) failed to adopt policies, procedures, regulations, and/or customs to monitor and protect inmates, (3) failed to adequately train and supervise its “contractors/employees and/or officers, ” and (4) failed to fully investigate, discipline, and retrain any “contractors/employees and/or officers” who did not comply with its policies, procedures, regulations, and/or customs. Compl. ¶ 43. Plaintiff appears not to disagree with the fact that Kuizon was an employee of CCS and not the County. The County argues that it is entitled to summary judgment on Count III because “no reasonable jury could find that the County maintained an official custom with the force of law that rose to the level of ‘deliberate indifference' and that caused the alleged constitutional deprivation in dispute.”[4] Def. Cty.'s Br. at 15.

         “[T]o impose § 1983 liability on a municipality, the plaintiff must prove that the constitutional deprivation occurred as a result of an official custom or policy of the municipality.” Smith v. City of Troy, Ohio, 874 F.3d 938, 946 (6th Cir. 2017) (internal citation omitted). The “custom or policy must be the ‘moving force' behind the constitutional violation”; the plaintiff must “identify the policy, connect the policy to the city itself and show that the particular injury was incurred because of the execution of that policy.” Amerson v. Waterford Twp., 562 Fed.Appx. 484, 490 (6th Cir. 2014) (internal quotations omitted). In other words, the plaintiff “must establish that the county's official policies or customs (or lack thereof) were a ‘moving force' behind the deprivation of Plaintiff's rights and arose as a result of ‘deliberate indifference' to her rights.” Balbridge v. Jeffreys, No. 07-CV-15130-DT, 2009 WL 275669, at *4 (E.D. Mich. Feb. 5, 2009) (quoting Doe v. Claiborne Cty., 103 F.3d 495, 508 (6th Cir. 1996)). Thus, the alleged injury must have been caused by the municipality “through its deliberate conduct.” Bd. of Cty. Comm'rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 399 (1997) (emphasis in original).

         1. Failure to Screen

         Plaintiff alleges that the County “[f]ailed to screen and staff the jail with noncriminal contractors/employees and/or contractors/employees without a propensity to sexually assault and harass the female inmates.” Compl. ¶ 43(a). Plaintiff takes issue with the County requiring corrections officers, but not male nurses who work at the Jail, to undergo a psychological evaluation. Pl.'s Resp. at 19. She also faults the County for not interviewing Kuizon before he was allowed to begin working at the Jail. Id. at 21; Pl.'s Suppl. Br. at 6.

         In addressing a municipal liability claim premised on inadequate scrutiny of an applicant's background, the Supreme Court in Brown determined that [a] plaintiff must demonstrate that a municipal decision [to hire an applicant] reflects deliberate indifference to the risk that a violation of a particular constitutional or statutory right will follow the decision. Only where adequate scrutiny of an applicant's background would lead a reasonable policymaker to conclude that the plainly obvious consequence of the decision to hire the applicant would be the deprivation of a third party's federally protected right can the official's failure to adequately scrutinize the applicant's background constitute “deliberate indifference.” 520 U.S. at 411 (alterations added). The Court stated that “a finding of culpability simply cannot depend on the mere probability that any [applicant] inadequately screened will inflict any constitutional injury. Rather, it must depend on a finding that this [applicant] was highly likely to inflict the particular injury suffered by the plaintiff.” Id. at 412 (alterations added) (emphasis in original). Applying Brown to a failure-to-screen claim, the Sixth Circuit concluded that a county was not liable under § 1983 for its alleged “policy of not checking the criminal backgrounds of the individuals it hired” where an officer's “domestic violence charges and protection orders ‘may well have made him an extremely poor candidate for . . . deputy, '” but “Plaintiffs cannot show that these shortcomings made it ‘highly likely' that he would ‘inflict the particular injury suffered by [them].'” Siler v. Webber, 443 Fed.Appx. 50, 56 (6th Cir. 2011) (emphasis in original) (quoting Brown, 520 U.S. at 412).

         In the present case, plaintiff's failure-to-screen claim fails because she has not shown that it was “plainly obvious” that Kuizon was “highly likely” to inflict the particular injuries she sustained. Brown, 520 U.S. at 411-12. Although plaintiff argues that the County should have required Kuizon to take a psychological evaluation and that it should have interviewed him, she provides no evidence that these additional steps would have made the County aware of the risk that Kuizon would inflict the specific type of harm that he did. Kuizon was employed by CCS - not the County - and CCS hired him after he participated in a phone interview. Kuizon Dep. at 24-25. The County did subject Kuizon to a criminal background check, which he passed.[5] Def. Cty.'s Ex. 6; Kuizon Dep. at 92; Holmes Dep. at 71-72. And according to Kuizon, at his prior job as a CCS nurse at a jail in California he did not have problems with inmates, discipline, or his nursing license. Kuizon Dep. at 34-35. As plaintiff has not challenged this testimony or provided any other evidence of “red flags” in Kuizon's past, she has failed to show that the County would have found reason to disqualify Kuizon had it probed more deeply into his background or into his psychological state. Thus, plaintiff has not shown that the County is liable because she has not demonstrated that Kuizon was “highly likely to inflict the particular injury suffered by [her].” Brown, 520 U.S. at 412.

         2. Failure to Adopt Policies, Procedures, Regulations, and/or Customs

         Plaintiff also alleges that the County failed to adopt policies, procedures, regulations, and/or customs “to protect its inmates from sexual assault and battery”; “to monitor and/or adequately monitor inmates to ensure the well being [sic] of each inmate, specifically [plaintiff]”; and to “monitor and/or adequately monitor” the inmates' well-being using the Jail's audio/visual system and “within the areas not equipped with audio/visual equipment.” Compl. ¶ 43(b), (e)-(g). Plaintiff especially takes issue with the alleged absence of “policies . . . to protect female inmates from the male contractors, ” such as “policies or procedures prohibiting a male nurse and/or contractor from being left alone with a female inmate.” Pl.'s Resp. at 15; Pl.'s Suppl. Br. at 5.

         Despite these allegations, the evidence shows that the County did have policies that protected inmates, including ones that seek to protect them from sexual assault and battery and ensure their well-being. The County's “Inmate Rights” policy provided:

A. The Washtenaw County Sheriff's Correctional Facility shall establish and maintain written policies that will protect the rights of inmates while incarcerated.
B. Employees shall not mistreat persons who are in their custody.
C. Employees shall handle persons in custody in accordance with the law[6] and Sheriff's Office procedures.
1. Mistreatment of persons in custody can include non-physical acts such as withholding a privilege or right that is guaranteed to the inmate without due process.
2. Discipline of persons in custody shall be in accordance with rules of due process.
3. A written record of all discipline shall be maintained.
4. An inmate shall receive a copy of all discipline against him/her and be informed of his/her right to appeal through a higher-ranking supervisor.
E. The Sheriff's Office will establish a formal procedure for an inmate to grieve discipline and other problems.
A. All employees shall comply with all provisions of this policy and procedure. A violation of any section of this policy is a Class 2 offense and may result in corrective discipline.
B. A violation of this policy and procedure may also be a violation of other Sheriff's Office Professional Standards, which may result in corrective disciplinary action up to and including discharge.

Def. Cty.'s Ex. 11 (PageID.405). The County also had policies to ensure that inmates received prompt emergency and non-emergency medical ...

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