Hyman v. Lewis

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

VERONICA HYMAN, Personal

Representative of the Estate of Deandre

Christopher Lipford, Deceased,

Plaintiff,

Case No. 19-11821

v.

Hon. George Caram Steeh

OFFICER CLYDE LEWIS,

SUPERVISOR BERNARD COX,

SUPERVISOR ROCHELLE PHIPPS,

DEPUTY WARDEN TERRY TELLEZ,

WARDEN KENNETH ROMANOWSKI,

HEIDI E. WASHINGTON, JOHN DOE &

HARVEY ROE, CITY OF DETROIT,

DETROIT POLICE DEPARTMENT,

STATE OF MICHIGAN, and MICHIGAN

DEPARTMENT OF CORRECTIONS,

Defendants.

__________________________________/

OPINION AND ORDER GRANTING

DEFENDANTS’ MOTION TO DISMISS (ECF NO. 11)

Defendants Clyde Lewis, Bernard Cox, Rochelle Phipps, Terry Tellez,

Kenneth Romanowski, Heidi Washington, the Michigan Department of

Corrections, and the State of Michigan (“MDOC Defendants”) seek

dismissal of Plaintiff’s claims against them. The court heard oral argument

on November 12, 2019, and took the matter under advisement. For the

reasons explained below, Defendants’ motion is granted.

BACKGROUND FACTS

On November 1, 2016, Deandre Christopher Lipford was arrested in

the City of Detroit. He was taken to the Detroit Detention Center, which is

operated pursuant to an interagency agreement between the City of Detroit

Police Department and the Michigan Department of Corrections. Lipford

was placed in the video arraignment room at 9:48 p.m. According to the

video recording, Lipford appeared to lose consciousness and fell to the

floor at about 11:02 p.m. He remained there for almost four hours, until

facility employee Leon Smith entered the video arraignment room at 2:50

a.m. and found Lipford unresponsive. Resuscitation measures were begun

by facility personnel. Lipford was taken to the hospital by EMS, but

resuscitation efforts were unsuccessful and he was pronounced dead at

3:50 a.m. on November 2, 2016. According to reports, suspected narcotics

were found between Lipford’s buttocks. The Wayne County Medical

Examiner ruled the death accidental due to a narcotics overdose.

Plaintiff Veronica Hyman, the personal representative of Lipford’s

estate, filed this action against several defendants: Officer Clyde Lewis,

Supervisor Bernard Cox, Supervisor Rochelle Phipps, Deputy Warden

Terry Tellez, Warden Kenneth Romanowski, MDOC Director Heidi

Washington, John Doe, Harvey Roe, City of Detroit, Detroit Police

Department, State of Michigan, and the Michigan Department of

Corrections. Plaintiff asserts claims of negligence/gross negligence and

violations of the Fourteenth Amendment pursuant to 42 U.S.C. § 1983.

The MDOC Defendants seek dismissal of Plaintiff’s complaint pursuant to

Federal Rule of Civil Procedure 12(b)(6).

LAW AND ANALYSIS

I. Standard of Review

Under Fed. R. Civ. P. 8(a)(2), a complaint must contain Aa short and

plain statement of the claim showing that the pleader is entitled to relief.@

Although this standard does not require Adetailed factual allegations,@ it

does require more than Alabels and conclusions@ or Aa formulaic recitation

of the elements of a cause of action.@ Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 555 (2007). To survive a motion to dismiss, the plaintiff must

allege facts that, if accepted as true, are sufficient Ato raise a right to relief

above the speculative level@ and to Astate a claim to relief that is plausible

on its face.@ Id. at 570. See also Ashcroft v. Iqbal, 556 U.S. 662, 678-79

(2009). AA claim has facial plausibility 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. at 678. See also

Hensley Manuf. v. Propride, Inc., 579 F.3d 603, 609 (6th Cir. 2009).

II. Individual Capacity Claims

Plaintiffs complaint names several supervisory officials as

defendants, in their individual and official capacities: Kenneth Romanowski

is the warden of the Detroit Detention Center (DDC); Terry Tellez is the

Deputy Warden of the DDC; Bernard Cox and Rochelle Phipps are

identified as supervisors at DDC; and Heidi Washington is the Director of

the Michigan Department of Corrections. In Count III of the complaint,

Plaintiff alleges that these defendants “owed to detainee Lipford the duty to

train administrative and supervisor personnel” and that they breached this

duty by “failing to train and to enforce the administrative regulation to

physically inspect detainees to determine that they are living and

breathing.” ECF 1 at ¶¶ 44-45. The complaint further alleges that this

failure to train and enforce the regulation constitutes a denial of his

Fourteenth Amendment rights, negligence, and gross negligence. Id. at ¶¶

46-47.

The complaint contains no other factual allegations regarding

Romanowski, Tellez, Cox, Phipps, or Washington.1 Plaintiff’s conclusory

allegations fail to state a claim under 42 U.S.C. § 1983. A supervisor may

not be held liable in his individual capacity under § 1983 based upon a

theory of respondeat superior, “or the right to control employees.” Phillips

v. Roane Cty., Tenn., 534 F.3d 531, 543 (6th Cir. 2008). Rather, the

plaintiff must allege that the supervisor “either encouraged the specific

incident of misconduct or in some other way directly participated in it. At a

minimum a plaintiff must show that the official at least implicitly authorized,

approved, or knowingly acquiesced in the unconstitutional conduct of the

offending officers.” Id. (citation omitted). Here, Plaintiff does not allege any

facts indicating that Romanowski, Tellez, Cox, Phipps, or Washington

directly participated or knowingly acquiesced in the conduct that resulted in

Lipford’s injury. See Iqbal, 556 U.S. at 676 (“[A] plaintiff must plead that

each Government-official defendant, through the official’s own individual

actions, has violated the Constitution.”) (emphasis added).

Plaintiff argues that her “failure to train” theory is not based upon

vicarious liability but on the individual defendants’ failure to perform their

1 Defendants do not seek dismissal of Plaintiff’s individual capacity claims against

Officer Lewis.

duties. Nonetheless, “[w]hile an individual supervisor may still be held

liable in his or her individual capacity under a failure-to-train theory, the

[plaintiff] must point to a specific action of each individual supervisor to

defeat a qualified immunity claim.” Phillips, 534 F.3d at 544 (emphasis

added). Plaintiff has failed to meet this standard.

Plaintiff further suggests that the claims against the individual

defendants should survive because “whether these Defendants were or

were not involved in some capacity are subjects of discovery.” Pl.’s Resp.

at 9. However, although “Rule 8 marks a notable and generous departure

from the hypertechnical, code-pleading regime of a prior era, . . . it does not

unlock the doors of discovery for a plaintiff armed with nothing more than

conclusions.” Iqbal, 556 U.S. at 678-79. Adherence to the pleading

requirements set forth in Twombley and Iqbal is “especially important in

suits where Government-official defendants are entitled to assert a defense

of qualified immunity. The basic thrust of the qualified-immunity doctrine is

to free officials from the concerns of litigations, including ‘avoidance of

disruptive discovery.’” Id. at 685.

The complaint fails to state a claim under § 1983; further, because

Plaintiff has not articulated a constitutional violation by the individual

defendants, they are entitled to qualified immunity. See Pearson v.

Callahan, 555 U.S. 223, 231 (2009) (qualified immunity provides immunity

from suit for government officials “insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable

person would have known”).

To the extent Plaintiff attempts to state a claim of negligence, her

allegations are similarly deficient.2 Governmental employees in Michigan

are immune from tort liability for injuries caused by them while acting within

the scope of their employment, unless their conduct amounts to “gross

negligence that is the proximate cause of the injury or damage.” See

M.C.L. § 691.1407(2). The statute defines gross negligence as “conduct so

reckless as to demonstrate a substantial lack of concern for whether injury

results.” Id. at § 691.1407(7)(a). For purposes of the governmental

immunity statute, “proximate cause” is “the one most immediate, efficient,

and direct cause preceding an injury.” Robinson v. City of Detroit, 462

Mich. 439, 458-59 (2000).

Plaintiff does not allege facts showing that Romanowski, Tellez, Cox,

Phipps, or Washington were grossly negligent or that their conduct was the

2 Plaintiff alleges in her complaint that Defendants’ conduct amounted to “negligence

and gross negligence as a matter of fact and law.” ECF No. 1 at ¶ 46. Although

allegations of gross negligence are required to overcome governmental immunity,

“gross negligence” is not an independent cause of action under Michigan law. See

Stein v. Corizon Health, Inc., 2018 WL 1425954 at *1 (E.D. Mich. Mar. 22, 2018) (citing

Cummins v. Robinson Twp., 770 N.W.2d 421, 433 (Mich. App. 2009)).

proximate cause of Lipford’s injury.3 Plaintiff’s complaint merely recites

conclusory allegations, which are insufficient under Twombley and Iqbal.

The court will dismiss Plaintiff’s individual capacity claims against

Defendants Cox, Phipps, Tellez, Romanowski, and Washington.

Plaintiff requests the opportunity to amend her complaint after

conducting discovery. The court’s dismissal of the individual capacity

claims against the MDOC Defendants is without prejudice to Plaintiff’s

ability to seek leave to amend the complaint, consistent with Federal Rule

of Civil Procedure 15.

III. Official Capacity Claims

Plaintiff also asserts claims against the MDOC, the State of Michigan,

and the individual defendants in their official capacities. Defendants

contend they are entitled to sovereign immunity. The Eleventh Amendment

bars suits against states or their departments and agencies in federal court.

See, e.g., McCormick v. Miami Univ., 693 F.3d 654, 661-62 (6th Cir. 2012).

This includes suits for damages against individuals in their official

capacities, which are “no different from a suit against the State itself.”4 Will

3 Additionally, as Director of the MDOC, Washington is absolutely immune from suit

when acting within the scope of her executive authority. See M.C.L.A. 691.1407(5);

Harrison v. Dir. of Dept. of Corr., 194 Mich. App. 446 (1992).

4 Plaintiff correctly points out that the Eleventh Amendment does not bar claims against

state officials for prospective injunctive relief. McCormick, 693 F.3d at 662. Plaintiff

does not, however, seek injunctive relief in her complaint.

v. Mich. Dept. of State Police, 491 U.S. 58, 71 (1989). An action against

the State of Michigan and the MDOC is barred unless the state has

consented to the filing of such a suit, or Congress has exercised its power

to override Eleventh Amendment immunity. See id. at 66; Alabama v.

Pugh, 438 U.S. 781, 782 (1978). In enacting § 1983, Congress did not

abrogate Eleventh Amendment immunity. See Quern v. Jordan, 440 U.S.

332, 345 (1979). Nor has the State of Michigan evidenced its intent to

consent to suits brought pursuant to § 1983. Abick v. State of Michigan,

803 F.2d 874, 876-77 (6th Cir. 1986). “Consent must be in the form of an

‘unequivocal indication,’ and only where stated ‘by the most express

language or by such overwhelming implication from the text as [will] leave

no room for any other reasonable construction.’” Id. (citations omitted).

Plaintiff argues that the state waived its immunity by entering into an

interagency agreement with the City of Detroit regarding the Detroit

Detention Center. Plaintiff points to paragraph 46 of the agreement, which

provides, under the heading “Liability Insurance”: “Limitation of Liability –

Each party is responsible for the acts or omissions of their respective

employees.” Pl.’s Resp. at Ex. 1. This contractual language – which says

nothing about litigation, claims, or immunity – falls far short of being an

“unequivocal indication” that the State of Michigan intended to waive its

sovereign immunity. Accordingly, the court finds that the State of Michigan,

MDOC, and the individuals sued in their official capacity (Lewis, Cox,

Phipps, Tellez, Romanowski, and Washington) are entitled to sovereign

immunity.

CONCLUSION

IT IS HEREBY ORDERED that the MDOC Defendants’ motion to

dismiss (ECF No. 11) is GRANTED, consistent with this opinion and order.

Dated: November 14, 2019

s/George Caram Steeh

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

November 14, 2019, by electronic and/or ordinary mail.

s/Marcia Beauchemin

Deputy Clerk