United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANTS WASHTENAW
COUNTY'S AND CORRECT CARE SOLUTIONS, LLC'S MOTIONS
FOR SUMMARY JUDGMENT
BERNARD A. FRIEDMAN, JUDGE
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.
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.
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.
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).
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.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.
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. 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.
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.
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
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.” Def. Cty.'s Br. at 15.
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
Failure to Screen
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.
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).
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. 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.
Failure to Adopt Policies, Procedures, Regulations, and/or
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.
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
C. Employees shall handle persons in custody in accordance
with the law 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
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
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 ...