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Preston v. County of Macomb

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

July 24, 2019

Jessica Lynn Preston, Plaintiff,
County of Macomb, Sheriff Anthony M. Wickersham, Correct Care Solutions, LLC, Lawrence Sherman, David Arft, Temitipe Olagbaiye, Monica Cueny, Cynthia Deview, Amanda Bishop, Jaclyn Lubanski, and Jeffrey Rattray, Defendants.

          Mona K. Majzoub Mag. Judge.



         This is a civil rights case about a pretrial detainee's right to adequate medical care. Plaintiff Jessica Lynn Preston alleges that defendants were deliberately indifferent to her serious medical needs during the labor and delivery of her son while she was in detention at the Macomb County Jail. Preston originally brought her claims against defendants Macomb County, Sheriff Anthony M. Wickersham, Corrections Officer (“CO”) Jeffrey Rattray, Correct Care Solutions, LLC (“CCS”), which is Macomb County's medical care contractor, and its employees Dr. Lawrence Sherman, David Arft, Temitipe Olagbaiye, Monica Cueny, Cynthia Deview, Amanda Bishop, and Jaclyn Lubanski. All defendants except Deview, Bishop, Lubanski, and Macomb County were dismissed due to earlier motions to dismiss and by stipulation of the parties. Now before the Court is Preston's motion seeking leave to amend her complaint to bring CCS and Dr. Sherman back into this litigation, add CO Holmes and John Doe COs, and expand upon her earlier allegations against Deview, Bishop, Lubanski, and Macomb County.

         I. Background

         A. March 15, 2016 to March 20, 2016

         On March 15, 2016, Preston was arrested for driving on a suspended license, and a state district judge ordered her to be detained at the Macomb County Jail, despite the fact that she was eight months pregnant.[1] (ECF No. 46-1, PageID.558-59.) At 5:00 p.m. that day, she was medically screened by defendant Cynthia Deview, a registered nurse. (Id. at PageID.558.) Deview noted that Preston used heroin daily, had been treated for substance abuse previously, and was eight months pregnant. (Id. at PageID.558-59.) Deview designated Preston's pregnancy as a “Supplementary Normal Pregnancy” and “Acute” medical condition. (Id.) Preston's pregnancy was “high risk” because she had placentae abruption during her previous pregnancy, which required a C-section. (Id. at PageID.560.) For this pregnancy, she was scheduled for a C-section just over a month later on April 26, 2016, at a local hospital. (Id.) Preston was placed in the general population. (Id. at PageID.559.)

         Around 6:00 p.m., Preston believed she was having contractions that were lasting for one minute. (Id.) Deview and another registered nurse, Monica Franks, examined her in the medical unit. (Id.) Franks documented that Preston's contractions lasted for fifteen to thirty seconds. (Id.) Ultimately, Deview and Franks determined that Preston was not having contractions and did not need further medical attention. (ECF No. 39, PageID.434.)[2] Deview recommended that she “drink fluids and report to a nurse if contractions changed.” (Id.)

         An hour and a half later, Preston thought her water broke. (Id. at PageID.343-44.) Defendant Amanda Bishop, a Licensed Practical Nurse (“LPN”), examined her in the medical unit. (ECF No. 46-1, PageID.559- 60.) Bishop found no amniotic fluid, and a litmus test confirmed there was none. (Id. at PageID.560.) Bishop determined that Preston's water had not broken, and Preston was sent back to her cell in the general population “without difficulty” and “appeared to be in no distress.” (ECF No. 39, PageID.433.)

         Two uneventful days passed. Then, on March 17, 2016, Temitipe Olagbaiye, a nurse practitioner, examined Preston with Bishop present. (ECF No. 46-1, PageID.560.) Plaintiff had “ongoing whitish vaginal discharge” and what Olagbaiye diagnosed as “abnormal false contraction[s].” (ECF No. 39, PageID.364.) He noted that Preston had been feeling “adequate” “fetal kick.” (Id.) Olagbaiye also recorded that Preston's urinalysis was not positive for opiates at the time of her incarceration. (Id.) Olagbaiye created what plaintiff calls a “treatment plan, ” which stated: “[p]atient pregnancy will be uneventful while in incarceration ‘till delivery.” (ECF No. 46-1, PageID.560-61. (quotations in original).)

         B. March 20, 2016

         Three days later, on March 20, 2016, at 6:45 a.m., Preston used a medical emergency intercom to request that she be taken to the medical unit. (Id. at PageID.561-62.) Bishop and Deview examined her between 7:07 a.m. and 7:25 a.m. (Id. at PageID.562.) She told Bishop and Deview “that her pain was intense and the time between her contractions was decreasing.” (Id.) Deview told Preston “that she was not impressed with Plaintiff's contractions” and sent her back to her cell. (Id.) Deview determined that Preston was not having contractions because her abdomen was not tightening, her skin was “warm and dry, ” and she was not visibly in pain. (See ECF No. 39, PageID.416.)

         From when Preston was escorted back to her cell at 7:30 a.m. until noon, she alleges that she remained “in severe pain” and continued to have contractions that were lasting longer and occurring more frequently. (ECF No. 46-1, PageID.563.) Around noon, she requested via intercom that she be examined “by a physician or be sent to the hospital.” (Id.) During this time, Preston was not actively monitored or supervised by medical staff. (Id.) At 12:20 p.m., a John Doe CO escorted her to the medical unit. (Id.)

         Defendant Jaclyn Lubanski, an LPN, sat with Preston outside of the medical unit while she described her intensifying pain and more intense and frequent contractions. (Id. at PageID.564.) Lubanski did not bring Preston inside the medical unit or examine her in any manner except for putting a medical device, likely a pulse oximeter, on her finger. (Id.) Bishop was also present. (Id.) She did not examine Preston either, but said “that she was ‘not impressed' with Plaintiff's contractions” and told her to stop making false medical complaints, otherwise she could be charged for doing so. (Id. (quotations in original).) Bishop also warned Preston that she could be reprimanded for making false complaints if she came down to the medical unit again claiming to be in labor. (Id.) This interaction lasted fourteen minutes. (Id.) A John Doe CO escorted Preston back to her cell at 12:35 p.m. (Id.) The CO warned her to “knock her shit off or they wouldn't believe her if something really happened.” (Id. at PageID.564-65.)

         At 1:00 p.m., Preston's pain level became “a ten . . . out of ten. . .” and she had “intense” vaginal bleeding. (Id. at PageID.565.) Preston used the medical emergency intercom to tell the medical control tower that she was bleeding and to request that she be taken to the hospital. (Id.) At the same time, Lubanski and a second John Doe CO were in Preston's unit passing out medications, and she told them she was bleeding and asked to be taken to the hospital. (Id.) She also showed them a bloody tissue that she had used as a sanitary pad. (Id.) The CO told her, “sit your ass down” because “they [are] not ready to deal with [you] now.” (Id.)

         For the next thirty minutes, Preston's contractions intensified, her pain worsened, and her bleeding continued. (Id. at PageID.566.) After Lubanski and the John Doe CO finished passing out medications, the CO told her to “pack up all of your shit because you're going to be housed in medical.” (Id.) Then CO Holmes escorted her to the medical unit. (Id.) During this time, Preston told Holmes that she was in great pain and her bleeding was getting worse. (Id.)

         At 1:30 p.m., Preston arrived in the medical unit. (Id.) Deview looked at Preston and saw that she had blood covering her upper thighs and determined that Preston was having her “bloody show.”[3] (Id. at PageID.566-67.) She or another nurse made a telephone call to Dr. Lawrence Sherman, the Chief Medical Director of Macomb County Jail, to notify him of this development. (Id. at PageID.10, PageID.566-67.) Dr. Sherman took no action and provided no instructions to the nurses. (Id. at PageID.567.) Again, Preston told Bishop and Deview that she needed to be taken to the hospital. (Id.) Deview told her: “[W]e will not allow your baby to be born in the jail.” (Id.) The nurses put Preston in a medical unit cell that had not been cleaned after another inmate occupied it. (Id.) Between 1:35 p.m. and 1:56 p.m., she was left unmonitored in the cell. (Id. at PageID.567-68.)

         Then, Preston's labor accelerated. She felt extreme pressure, and her bleeding worsened. (Id. at PageID.568.) At 1:58 p.m., her water broke, and she yelled for assistance. (Id.) Deview entered the cell to assist her. (Id.) One of the three nurses called Dr. Sherman to tell him that Preston's water had broken and that she was still bleeding. (Id.) Dr. Sherman ordered the nurses to time her contractions and call him back. (Id. at PageID.569.) Deview timed Preston's contractions, which were one minute long and two minutes apart. (ECF No. 39, PageID.408.) Nothing in the record indicates that Deview, Bishop, or Lubanski called Dr. Sherman back or that Dr. Sherman called them for a report on Preston's labor.

         At 2:25 p.m., Deview saw the child's head crowning. (ECF No. 46-1, PageID.569.) Two minutes later, either Deview, Bishop, or Lubanski called Dr. Sherman, and he called for an ambulance.[4] (Id.) An ambulance arrived at 2:35 p.m., but emergency personnel would not transport Preston to the hospital (id. at PageID.569-70), presumably because she was too close to delivery. At some point, Preston was moved to the floor of the cell, and her son was born at 2:40 p.m. on a floor mat. (Id. at PageID.569; ECF No. 39, PageID.408.) Based on her medical records, it appears that Preston was sent back to Macomb County as early as three days after the birth of her son and that she remained detained there until at least May 28, 2016. (ECF No. 39-, PageID.369, 371-78.)

         Preston alleges that defendants violated her Fourteenth Amendment due process rights. (ECF No. 46-1, PageID.588-92.) She claims that the individual defendants were deliberately indifferent to her serious medical needs, and that Dr. Sherman, as a supervisor, violated her rights. (Id. at PageID.589, PageID.591.) She also argues that Macomb County and CCS are liable for maintaining unconstitutional policies that caused plaintiff's constitutional rights to be violated by the individual defendants. (Id. at PageID.588-89.) Preston claims that defendants' actions led to her physical injuries, “pain, panic, and emotional distress” (id. at PageID.592), including delivering her placenta at the hospital over an hour after her son was born, and bilateral peri-urethral tears. (Id. at PageID.575.) Preston states that to this day she suffers from nightmares and emotional pain caused by the events surrounding her labor and delivery. (Id.)

         C. Procedural History

         Earlier in the litigation, Macomb County filed an answer (ECF No. 13), the parties agreed to dismiss CO Jeffrey Rattray for mistaken identity (ECF No. 33), and Sheriff Wickersham was dismissed (ECF No. 41). CCS and its employees filed a motion to dismiss, which was granted in part and denied in part. (ECF No. 42.) The Court dismissed all but Deview, Bishop, and Lubanski. (Id. at PageID.483-84.) The Court determined that Preston had stated a claim of deliberate indifference to her right to adequate medical care against Deview, Bishop, and Lubanski. (Id. at PageID.463-71.)

         Now, Preston seeks to reinvigorate her claims against Dr. Sherman and CCS, add CO Holmes and John Doe COs as parties, and add allegations against the defendant nurses and Macomb County. (ECF No. 46, PageID.523-28.) Macomb County opposes her proposed amendments regarding CO Holmes, but is silent as to the John Doe COs and Macomb County itself. (ECF No. 48.) CCS defendants oppose her amendments as to Dr. Sherman and CCS on the grounds that such amendments are futile or fail to satisfy Federal Rule of Civil Procedure 8 and that they should be stricken under Federal Rule of Civil Procedure 12(f). (ECF No. 51.) They also move for a more definite statement under Rule 12(e). (Id.)

         II. Legal Standard

         A party seeking to amend a claim, when such an amendment would not be permitted as a matter of course, “may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). Leave should be denied where the amendment demonstrates defects “such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.” Brown v. Chapman, 814 F.3d 436, 443 (6th Cir. 2016) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). “A proposed amendment is futile if the amendment could not withstand a Rule 12(b)(6) motion to dismiss.” Parchman v. SLM Corp., 896 F.3d 728, 738 (6th Cir. 2018) (quoting Beydoun v. Sessions, 871 F.3d 459, 469 (6th Cir. 2017)).

         When deciding a motion to dismiss under Federal Rule of Procedure 12(b)(6), the Court must “construe the complaint in the light most favorable to the plaintiff and accept all allegations as true.” Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plaintiff's claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. A plausible claim need not contain “detailed factual allegations, ” but it must contain more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Moreover, “to survive a motion to dismiss, the ‘complaint must contain . . . allegations respecting all material elements to sustain a recovery under some viable legal theory.'” Bishop v. Lucent Tech., 520 F.3d 516, 519 (6th Cir. 2006) (quoting Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005.))

         III. Analysis

         In her proposed amended complaint, Preston pursues claims for inadequate medical care under 42 U.S.C. § 1983. To succeed, she must establish “(1) the deprivation of a right secured by the Constitution or laws of the United States (2) caused by a person acting under color of state law.” Sigley v. City of Parma Heights, 437 F.3d 527, 533 (6th Cir. 2006) (citing cases). It is undisputed that CCS and its employees were acting under color of state law. See Winkler v. Madison Cty., 893 F.3d 877, 890 (6th Cir. 2018). The only issue is whether defendants violated Preston's right to adequate medical care under the Fourteenth Amendment.

         Preston offers amendments that address the individual liability of Deview, Bishop, Lubanski, Dr. Sherman, CO Holmes, and the John Doe COs; supervisory liability of Dr. Sherman; and Monell liability of CCS and Macomb County. She states a claim against all but the COs as individuals and Dr. Sherman as a supervisor in her proposed amended complaint.

         A. Individual Liability

         Preston seeks to add factual allegations against Deview, Bishop, and Lubanski, add defendant COs to the litigation, and bring Dr. Sherman back into the litigation as an individual because they were deliberately indifferent to her right to adequate medical care. Deliberate indifference claims based on inadequate medical care brought by pretrial detainees, although brought under the Fourteenth Amendment, “are analyzed under the same rubric as Eighth Amendment claims brought by prisoners.” Villegas v. Metro. Gov't of Nashville, 709 F.3d 563, 566, 568 (6th Cir. 2013). “Deliberate indifference ‘is a stringent standard of fault[.]'” Shadrick v. Hopkins Cty., 805 F.3d 724, 737 (6th Cir. 2015) (quoting Bd. of Cty. Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397, 410 (1997)). A defendant's “deliberate indifference violates these rights ‘[w]hen the indifference is manifested by . . . [the defendants] intentionally denying or delaying access to medical care [ ]' for a serious medical need.” Blackmore v. Kalamazoo Cty., 390 F.3d 890, 895 (6th Cir. 2004) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). Deliberate indifference claims have two components: objective and subjective.[5]Villegas, 709 F.3d at 568 (citing Harrison v. Ash, 539 F.3d 510, 518 (6th Cir. 2008)).

         The objective component “requires that the deprivation alleged be of a sufficiently serious [medical] need.” Darrah v. Krisher, 865 F.3d 361, 367 (6th Cir. 2017) (citing Farmer v. Brennan, 511 U.S. 294, 297 (1994)). A serious medical need is “one ‘that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.'” Jones v. Muskegon Cty., 625 F.3d 935, 941 (6th Cir. 2010) (quoting Harrison, 539 F.3d at 518).

         Under the subjective component, a plaintiff must plead facts that if true would prove a defendant acted with “a sufficiently culpable state of mind in denying medical care.” Blackmore, 390 F.3d at 895 (quoting Brown v. Bargery, 207 F.3d 863, 867 (6th Cir. 2000)). “The requirement that the official have subjectively perceived a risk of harm and then disregarded it is meant to prevent the constitutionalization of medical malpractice claims.” Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001) (citing cases). The subjective component “must be addressed for each [defendant] individually.” Phillips v. Roane Cty., 534 F.3d 531, 542 (6th Cir. 2008) (quoting Garretson v. City of Madison Heights, 407 F.3d 789, 797 (6th Cir. 2005)). A plaintiff satisfies the subjective component if she pleads that the defendant “(1) subjectively knew of a risk to the inmate's health, (2) drew the inference that a substantial risk of harm to the inmate existed, and (3) consciously disregarded that risk.” Jones, 625 F.3d at 941 (citing cases).

         As to the second prong of the subjective component, a plaintiff can plead that an official “had the requisite knowledge of a substantial risk” based on inferences from circumstantial evidence or “from the very fact that the risk was obvious.” Terrance v. Northville Reg'l Psychiatric Hosp., 286 F.3d 834, 843 (6th Cir. 2002) (internal citations and quotations omitted). Courts also consider “the expected level of knowledge of the particular official.” Sours v. Big Sandy Reg'l Jail Auth., 593 Fed.Appx. 478, 484 (6th Cir. 2014) (citing cases).

         And as to the third prong, a plaintiff must plead that the defendant consciously disregarded the risk to the plaintiff. A plaintiff does not need to plead that a “defendant acted with the very purpose of causing harm[.] The standard . . . has generally been equated with . . . ‘recklessness.'” Winkler, 893 F.3d at 891 (citations omitted) (quoting Farmer, 511 U.S. at 842). Courts are “deferential to the judgment of medical professionals, ” Richmond v. Huq, 885 F.3d 928, 940 (6th Cir. 2018), and so mere negligence, or medical malpractice, is insufficient. Winkler, 893 F.3d at 892 (citing cases). This includes misdiagnosis. Rouster v. Cty. of Saginaw, 749 F.3d 437, 447 (quoting Comstock, 273 F.3d at 703). Similarly, “a desire for additional or different treatment, ” Rhinehart v. Scutt, 894 F.3d 721, 738 (6th Cir. 2018) (quoting Anthony v. Swanson, 701 Fed.Appx. 460, 464 (6th Cir. 2017)), or a delay without more will not suffice for deliberate indifference, Santiago v. Ringle, 734 F.3d 585, 593 (6th Cir. 2013).

         However, “a complete denial of medical care” or “inadequate medical treatment” will demonstrate conscious disregard. Rhinehart, 894 F.3d at 740 (quoting Alspaugh v. McConnell, 643 F.3d 162, 169 (6th Cir. 2011)). Inadequate care is care that is “so cursory as to amount to no treatment at all.” Terrance, 286 F.3d at 843-44 (quoting Mandel v. Doe, 888 F.2d 783, 789 (11th Cir. 1989)). Medical staff “has a duty to do more than simply provide some medical treatment to a prisoner who has serious medical needs; instead, the doctor must provide medical ...

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