UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

Linda McCormick, 

Plaintiff, 

v. 

Oakwood Healthcare Inc., City of 

Taylor, Brian Wojtowicz, Adam 

Leffew, Jennifer Zuccaro, and 

Steve Porta, 

Defendants. 

________________________________/

Case No. 14-cv-12801 

Judith E. Levy 

United States District Judge 

Mag. Judge David R. Grand 

OPINION AND ORDER GRANTING PLAINTIFF’S MOTION TO 

GRANT CORRECTIONS [111], GRANTING PLAINTIFF’S 

MOTION FOR LEAVE TO FILE INDEX [115], DENYING 

PLAINTIFF’S MOTION FOR ORDER TO COMPEL [114], 

GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY 

JUDGMENT [86, 87], AND DENYING PLAINTIFF’S MOTION TO 

AMEND [83] 

 Plaintiff Linda McCormick brought suit against defendants 

Oakwood Healthcare Inc. (defendant Oakwood) and the City of Taylor 

and Taylor Police Officers Brian Wojtowicz, Adam Leffew, Jennifer 

Zuccaro, and Steve Porta (the City Defendants), for events that took 

place in April 2014 at Oakwood Heritage Hospital, where plaintiff’s 

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mother was hospitalized. After discovery, plaintiff filed a motion to 

amend the complaint to add new defendants (employees or former 

employees of defendant Oakwood) and new claims. (Dkt. 83.) Shortly 

thereafter, defendant Oakwood and the City Defendants filed motions 

for summary judgment. (Dkt. 86; Dkt. 87.) Plaintiff filed responses 

(Dkt. 95; Dkt. 108; see also Dkt. 110), as well as several miscellaneous 

motions in support of her responses. (See Dkt. 111 (motion to grant 

corrections); Dkt. 115 (motion for leave to file index); see also Dkt. 114 

(motion for order to compel).) For the reasons set forth below, plaintiff’s 

motions to grant corrections and for leave to file index are granted, 

plaintiff’s motion for order to compel is denied, defendants’ motions for 

summary judgment are granted, and plaintiff’s motion for leave to 

amend is denied. 

I. Background 

In early April 2014, plaintiff’s mother, Mary Griffith, underwent 

elective shoulder surgery at Oakwood Heritage Hospital. (Dkt. 87-3 at 

11.) According to nursing notes on April 7, 2014, taken a few days after 

the surgery, while Griffith was still admitted, Griffith was “alert and 

agitated” and “calling out loudly[,] oriented to self[,] but unable to 

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[f]ocus on necessary treatment.” (Dkt. 87-4 at 4.) After she “remov[ed 

her] oxygen,” Griffith was given Haldol, and antipsychotic medication. 

(See id.) At approximately 10:30 PM that same day, plaintiff called 

Oakwood to ask how her mother was doing and “became angry and 

belligerent” when told that Haldol had been administered to Griffith. 

(Id.) 

Plaintiff went to Oakwood and stated that, as Griffith’s power of 

attorney, she wanted Griffith transferred to Henry Ford Hospital. (See 

id. at 3-4.) Plaintiff spoke with Griffith’s treating physician, Dr. Wayel 

Katrib, on the phone, who notified plaintiff that her mother could be 

transferred the following morning. (Id. at 3.) Plaintiff told the 

Oakwood staff that they were all fired and that she was leaving with 

her mother immediately. (Id.) Plaintiff attempted to remove her 

mother from the hospital but was prevented from doing so by an 

Oakwood security guard. (Id.; Dkt. 87-5 at 2.) The police were called at 

approximately 12:30 AM on April 8, 2014. (Id.) 

Taylor Police Officers Brian Wojtowicz and Adam Leffew were 

dispatched to the hospital, where hospital staff informed them that 

plaintiff had been told it was unsafe for Griffith to leave the hospital at 

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that time, but that Griffith could be transferred in the morning. (Dkt. 

87-7 at 2-3; Dkt. 87-8 at 2-3.) The officers testified that plaintiff was 

irate and had attempted to remove intravenous lines from Griffith. 

(Dkt. 87-7 at 3; Dkt. 87-8 at 3.) Once the officers spoke to plaintiff and 

she agreed not to interfere with Griffith’s care, she was allowed to 

remain at the hospital, and the officers left. (Dkt. 87-7 at 3; Dkt. 87-8 

at 3.) 

Plaintiff states in an affidavit that when the police arrived, she 

“was not disturbing anyone,” and informed the officers that Griffith 

“was being held against her will” and that Griffith herself informed the 

officers that “she wanted [to be] transferred and did not want Oakwood 

to treat her.” (Dkt. 108 at 6-7 (citing Dkt. 110-8).) According to 

plaintiff, defendant officer Wojtowicz “accus[ed p]laintiff of touching the 

medical equipment,” but she “denied ever touching any medical 

equipment” and stated “that both the doctor and nurses had told 

[p]laintiff [that Griffith] was stable and ready for discharge.” (Id.) 

Approximately one hour later, hospital staff again called the 

police. (Dkt. 87-10.) According to the 911 transcript, hospital staff 

stated that plaintiff was “verbally attacking the nurses and [] need[ed] 

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to be removed.” (Id. at 3.) The nurses were unable to continue 

Griffith’s care because of the interference. (Id.) According to plaintiff, 

the “second call to the police was again for improper purposes.” (Dkt. 

108 at 8.) 

When the officers arrived back at the hospital shortly after the 

second 9-1-1 call, hospital staff advised them that plaintiff was again 

interfering with Griffith’s medical treatment, and a hospital security 

guard informed plaintiff several times that she needed to leave the 

premises. (Dkt. 87-7 at 4; Dkt. 87-8 at 4; Dkt. 87-9 at 4; Dkt. 87-11 at 

3.) Plaintiff refused to leave. (Dkt. 87-7 at 4; Dkt. 87-8 at 4; Dkt. 87-9 

at 4; Dkt. 87-11 at 3.) 

Plaintiff claims that she “had not said a word to anyone,” and had 

merely “returned to her mother’s bedside.” (Dkt. 108 at 8.) She 

“professed her innocence but [officer] Wojtowicz refused to believe her, 

look at the [security footage,] or investigate,” and ordered that she 

“need[ed] to leave.” (Id.) Plaintiff argues this was improper because 

the hospital “was private property that [officer Wojtowicz] did not own.” 

(Id. at 8-9.) Plaintiff states in her affidavit that she told officer 

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Wojtowicz, “I don’t want to argue with you, then I will leave.” (Id. at 9 

(citing Dkt. 110-8; Dkt. 110-10).) 

The officers instructed plaintiff to leave the hospital premises at 

least three times (which plaintiff seems to agree with (Dkt. 108 at 8)), 

but, according to the officers, she refused, stating that she knew her 

rights and would not do so. (Dkt. 87-7 at 4; Dkt. 87-8 at 4; Dkt. 87-9 at 

4; Dkt. 87-11 at 3.) Officer Wojtowicz then informed plaintiff she was 

under arrest for trespassing. (Dkt. 87-7 at 4; Dkt. 87-8 at 4; Dkt. 87-9 

at 4; Dkt. 87-11 at 3.) 

According to the City Defendants, instead of cooperating with the 

officers, plaintiff “yanked her arm back and slid to the floor in order to 

prevent [herself from] being handcuffed,” and “began screaming, curled 

her arms underneath her body, and refused to provide them to the 

officers.” (Dkt. 87 at 14 (citing Dkt. 87-7, Dkt. 87-8; Dkt. 87-9; Dkt. 87-

11).) The officers state in their affidavits that “[n]o strikes or 

compliance blows were ever delivered to [p]laintiff,” and due to 

plaintiff’s refusal to stand and walk, the officers had to carry plaintiff 

through the hospital and eventually wheel her out in a wheelchair. (Id.) 

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She “refused” when “instructed to get in the [police] car,” so she 

was “placed on her stomach in the backseat.” (Id.) Once plaintiff was 

turned over for processing at the station, officer Jennifer Zuccaro 

searched plaintiff. (Id.) The officers testified that plaintiff “did not 

have any visible injuries and never complained of any injuries” prior to 

being turned over for booking. (Id. (citing Dkt. 87-7, Dkt. 87-8; Dkt. 87-

11).) Plaintiff was issued a misdemeanor citation for trespassing and 

interference with police authority stemming from her refusal to leave, 

resisting arrest, and refusal to follow commands. (Id. at 14-15 (citing 

Dkt. 87-13).) 

Citing her own affidavit, plaintiff declares that officer Wojtowicz 

“grabbed [her] left arm, stomped on [her] foot[,] and slammed [her] to 

the ground,” and never stated that plaintiff was under arrest. (Dkt. 108 

at 9 (citing Dkt. 110-8; Dkt. 110-11).) She “was then punched in the 

back” and “kicked [] in the hip.” (Id.) She was “slammed into a wheel 

chair,” “harshly thrown into” the back of the patrol car, “dragged out of 

the car by her feet” when they reached the station, and complained that 

her “back and shoulder w[ere] hurt and she needed medical attention.” 

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(Id.) According to plaintiff, her complaints of pain were met with taunts 

from officers during booking. (Id. at 10.) 

Plaintiff was arraigned on April 8, 2014, the same day she was 

booked. (Dkt. 87-15 (citing 87-17).) She pled not guilty and was given 

the opportunity to be represented by a court-appointed attorney. (Id.) 

The judge set plaintiff’s bond at $2500, which was posted by Barbara 

Fisher. (Id. (citing 87-18.) A settlement conference was held on April 

29, 2014, and based on defendant Oakwood’s request that the matter be 

dismissed, the charges were dropped. (Id. at 15-16 (citing 87-20).) The 

trial court ordered that plaintiff stay out of Oakwood Heritage Hospital 

except for emergency purposes. (Id.) 

During this time, a social worker representing defendant 

Oakwood filed a petition in Michigan Probate Court for Appointment of 

a guardian and initiated a probate proceeding. (Dkt. 87-21.) Griffith’s 

treating physician felt it necessary to remove her from plaintiff’s care 

and to place Griffith in a nursing home for her safety, at least until 

Adult Protective Services could “substantiate any abuse and/or neglect” 

caused by plaintiff “at home.” (Dkt. 87-22.) The petition was granted, 

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and the probate court ordered a temporary guardian for Griffith, whose 

authority remained in effect until her death. (See Dkt. 86 at 17.) 

Plaintiff brought six claims in her original complaint against 

defendant Oakwood and the City Defendants: Count I § 1983 for 

violation of her Fourth Amendment rights; Count II false arrest; Count 

III false imprisonment; Count IV intentional infliction of emotional 

distress; Count V battery; and Count VI malicious prosecution. (Dkt. 1.) 

Over one year after filing her original complaint, and on the eve of 

the dispositive motions deadline, plaintiff filed a motion to amend, 

seeking to add additional claims: Count VII intentional interference 

with plaintiff’s authority as patient advocate-health care power of 

attorney and Count VIII defamation. (Dkt. 83-1.) She also seeks to add 

Dr. Wayel Katrib, Bethany Nalepka, and Janet Stevens, all current or 

former individual employees of defendant Oakwood. (Id.) 

II. Standard 

Summary judgment is proper when “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.” Fed. R. Civ. P. 56(a). The Court may 

not grant summary judgment if “the evidence is such that a reasonable 

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jury could return a verdict for the nonmoving party.” Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court “views the 

evidence, all facts, and any inferences that may be drawn from the facts 

in the light most favorable to the nonmoving party.” Pure Tech Sys., 

Inc. v. Mt. Hawley Ins. Co., 95 F. App’x 132, 135 (6th Cir. 2004) (citing 

Skousen v. Brighton High Sch., 305 F.3d 520, 526 (6th Cir. 2002)). 

III. Analysis 

a. Section 1983 claim 

To establish a claim pursuant to 42 U.S.C. § 1983, a plaintiff 

“must identify a right secured by the United States Constitution and 

the deprivation of that right by a person acting under color of state 

law.” Russo v. City of Cincinnati, 953 F.2d 1036, 1042 (6th Cir. 1992). 

Put differently, a plaintiff must provide sufficient evidence to show that 

(1) the conduct at issue was under color of state law, (2) the conduct 

caused a deprivation of a constitutional right, and (3) the deprivation 

occurred without due process of law. Nishiyama v. Dickson Cty., 814 

F.2d 277, 279 (6th Cir. 1987). Plaintiff claims that all defendants, 

acting under color of state law, violated the Fourth Amendment because 

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they “never had probable cause to arrest, seize, hold[,] or otherwise 

restrain” her. (Dkt. 1 at 4.) 

“It is a well-settled principle of constitutional jurisprudence that 

an arrest without probable cause constitutes an unreasonable seizure in 

violation of the Fourth Amendment.” See Ingram v. City of Columbus, 

185 F.3d 579, 592-93 (6th Cir. 1999). To establish a § 1983 claim of 

unlawful seizure under the Fourth Amendment, a plaintiff must prove 

that the arresting officer lacked probable cause to arrest her. Voyticky 

v. Village of Timberlake, Ohio, 412 F.3d 669, 677 (6th Cir. 2005); see

Wallace v. Kato, 549 U.S. 384, 388 (2007) (claims of false arrest and 

false imprisonment under § 1983 overlap, with false arrest being a 

“species” of false imprisonment, and “[e]very confinement of the person 

is an imprisonment”) (quotation omitted). 

Defendant Oakwood argues that, as a private entity, it did not act 

under color of state law for purposes of a § 1983 claim. (Dkt. 86 at 18-

20.) Plaintiff responds that defendant Oakwood’s security personnel 

are clothed with state authority to make an arrest. (Dkt. 95 at 29-30.) 

But even accepting that as true, plaintiff fails to establish that any 

Oakwood employee violated plaintiff’s Fourth Amendment rights. 

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Only when one acting under color of law, “by means of physical 

force or show of authority, has in some way restrained the liberty of a 

citizen may” the Court “conclude that a ‘seizure’ has occurred” for 

purposes of a § 1983 claim. See Terry v. Ohio, 392 U.S. 1, 19 n.16 

(1968). This is measured under an objective standard—a “seizure 

occurs if ‘in view of all of the circumstances surrounding the incident, a 

reasonable person would have believed that he was not free to leave.’” 

Brendlin v. California, 551 U.S. 249, 255 (2007) (quoting United States

v. Mendenhall, 446 U.S. 544, 554 (1980)). 

Plaintiff does not argue and does not present evidence that any 

employee of defendant Oakwood actively helped the police to arrest her. 

Thus, plaintiff cannot establish that any employee of defendant 

Oakwood seized plaintiff within the meaning of the Fourth Amendment. 

Moreover, plaintiff’s argument that defendant Oakwood “falsely 

imprisoned [p]laintiff because due to Oakwood’s improper conduct[,] 

she had to remain in the hospital to protect her mother and over see her 

care and could not leave” is meritless. No reasonable person under the 

circumstances would have felt they were not free to leave. In fact, 

plaintiff states that she thought she could leave of her own free will 

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before officer Wojtowicz arrested her. (See Dkt. 108 at 14.) Because 

plaintiff has not set forth sufficient evidence to establish that any 

employee of defendant Oakwood seized her, plaintiff’s § 1983 claim as to 

Oakwood must be dismissed. 

The City Defendants do not dispute that they seized plaintiff. 

Rather, they argue that they had probable cause to arrest her and, 

alternatively, that they are protected by qualified immunity. (Dkt. 87 

at 16-21.) According to them, “[p]laintiff refused to comply with the 

[officers’] requests and commands to leave the property,” thereby 

committing “a misdemeanor in the officers’ presence” sufficient to 

justify arrest. (Id.) Plaintiff responds that she did not say she would 

not leave, and was never told that she was under arrest. (Dkt. 108 at 

14.) Rather, according to her, she attempted to follow officer 

Wojtowicz’s command to leave but was “sucker attac[k]ed” so that she 

could not comply. (Id.) 

“[W]hen an officer has probable cause to believe a person 

committed even a minor crime in his presence, . . . . [t]he arrest is 

constitutionally reasonable.” Virginia v. Moore, 553 U.S. 164, 171 

(2008). “[A]n objective finding of probable cause is an absolute defense 

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to liability for a wrongful arrest claim.” United States v. Sease, 659 

F.3d 519, 525 n.1 (6th Cir. 2011). 

Even accepting all of plaintiff’s evidence as true (here, her own 

affidavits), plaintiff was witnessed trespassing in the officers’ presence, 

and thus probable cause existed to arrest her. Plaintiff does not dispute 

that the hospital security guard, in front of the officers, told her that 

she needed to leave, or that the hospital nurses told the officers that she 

had been interfering with their ability to treat Griffith. Moreover, 

plaintiff herself states that officer Wojtowicz told her that she “need[ed] 

to leave.” (Dkt. 108 at 8.) 

Instead, she argues that officer “Wojtowicz accepted mere hearsay 

of the nurses[’] false allegations without any reasonable investigation.” 

(Dkt. 108 at 14.) Even if she “professed her innocence [to officer] 

Wojtowicz,” who then “refused to believe her, look at the [security 

footage,] or investigate” (id. at 8), the officers objectively had probable 

cause to arrest her based on the hospital staffs’ statements and the 

officers’ own observations. Faced with hospital staff allegations that 

plaintiff was interfering with Griffith’s treatment and having witnessed 

hospital security tell plaintiff that she needed to leave the hospital, the 

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officers objectively had probable cause to arrest plaintiff whether or not 

she said she would comply. For this reason, the claim is dismissed as to 

the City Defendants as well. 

Relatedly, the Court notes that although plaintiff uses the term 

“excessive force” at various times in her responses, she did not plead it 

in her § 1983 claim. But even if she had, it would be denied for the 

same reasons as plaintiff’s battery claim is denied below. See generally 

Wells v. City of Dearborn Heights, 538 F. App’x 631, 641 n.3 (6th Cir. 

2013) (noting that “[i]t appears that Michigan courts do indeed view 

the” § 1983 excessive[ ]force and battery under Michigan tort law 

“standards as equivalent”). 

b. False arrest claim 

To establish a claim of false arrest under Michigan law, a plaintiff 

must show that the arrest was illegal or unjustified. Peterson Novelties, 

Inc. v. City of Berkley, 259 Mich. App. 1, 18 (2003) (citing Lewis v. 

Farmer Jack Div., Inc., 415 Mich. 212, 218 (1982)). “To prevail on a 

claim of false arrest, a plaintiff must show that the arrest was not legal, 

i.e. the arrest was not based on probable cause.” Id. Under Michigan 

law, “probable cause to arrest exists where the facts and circumstances 

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within an officer’s knowledge and of which he has reasonably 

trustworthy information are sufficient in themselves to warrant a man 

of reasonable caution in the belief that an offense has been committed 

or is being committed.” Hinchman v. Moore, 312 F.3d 198, 204 (6th Cir. 

2002) (quoting People v. Champion, 452 Mich. 92, 115 (1996)). 

For the same reasons that plaintiff’s § 1983 claim fails, plaintiff’s 

state law claim of false arrest also fails. Plaintiff has not established 

that any employee of defendant Oakwood seized her. And the City 

Defendants objectively had probable cause to arrest her. Thus 

plaintiff’s state claim of false arrest is dismissed. 

c. False imprisonment claim 

To establish a claim of false imprisonment under Michigan law, a 

plaintiff must show that defendants “participated in an illegal and 

unjustified arrest, and that [the defendants] lacked probable cause to do 

so.” Bletz v. Gribble, 641 F.3d 743, 758 (6th Cir. 2011) (quoting Walsh 

v. Taylor, 263 Mich. App. 618, 626 (2004)). “The elements of false 

imprisonment are (1) an act committed with the intention of confining 

another, (2) the act directly or indirectly results in such confinement, 

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and (3) the person confined is conscious of his confinement.” Id.

(quoting Walsh, 263 Mich. App. at 627). 

For the same reasons that plaintiff’s § 1983 and false arrest 

claims were dismissed, plaintiff’s false imprisonment claim must also be 

dismissed. See, e.g., Wilkerson v. Warner, 545 F. App’x 413, 434 (6th 

Cir. 2013) (“Because we find that [defendant] had reasonable suspicion 

and probable cause to detain [plaintiff] when he did so, we affirm the 

district court’s dismissal of plaintiff’s false imprisonment claim.”). 

d. Intentional infliction of emotional distress claim 

To establish a claim of intentional infliction of emotion distress, a 

plaintiff must show “(1) ‘extreme and outrageous’ conduct; (2) intent or 

recklessness; (3) causation; and (4) ‘severe emotional distress.’” Roberts 

v. Auto-Owners Ins. Co., 422 Mich. 594, 602 (1985). 

“It is initially for the trial judge to decide whether defendant’s 

conduct might reasonably be regarded as so extreme and outrageous as 

to allow recovery for intentional infliction of emotional distress.” 

Sawabini v. Desenberg, 143 Mich. App. 373, 383 (1985). To establish 

outrageousness, plaintiff must show facts that “to an average member 

of the community” would “arouse his resentment against the actor, and 

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lead him to exclaim, ‘Outrageous!’” See Roberts, 422 Mich. at 603. 

Plaintiff must specify the disputed outrageous conduct. Mino v. Clio 

Sch. Dist., 255 Mich. App. 60, 80 (2003). 

The outrageous conduct plaintiff describes in her responses is that 

“[a] person,” Griffith, “was kidnapped and killed all because of all 

[d]efendant[s’] willful lies.” (Dkt. 108 at 26.) She argues that 

defendants “torture[d] . . . her mother,” and that she “had to endure 

seeing her mother mistreated and slowly killed for [eleven] months.” 

(Id.) According to plaintiff, it “is extreme and outrageous and shocking 

that a[n] entity could kidnap a person, drug them with severe psych 

drugs [Griffith] had never had before, for the improper purpose of 

incapacitating her to ensure a[n] unfavorable report from a [guardian 

ad litem].” (Id.) 

As to the City Defendants, plaintiff has not set forth sufficient 

evidence to show that they were responsible for the conduct that 

allegedly caused her severe emotional harm. The evidence does not in 

any way show that the officers tortured Griffith, seized her, or 

administered any drugs to her. Separately, she argues that she was 

“falsely arrested” and “laid in jail not knowing if her mother was dead 

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or alive” (Dkt. 95 at 31-32), but because the officers were justified in 

arresting her, that is not sufficient conduct to be considered extreme 

and outrageous. 

As to defendant Oakwood, plaintiff does not set forth sufficient 

evidence to support what she perceived as kidnapping or torture for 

what she argues was the purposeful interference with her Power of 

Attorney. Plaintiff attaches many exhibits to her responses from 

Griffith’s medical records. But she fails to articulate how any of them 

support her allegations. Because plaintiff fails to establish 

outrageousness as to any defendant, her IIED claim is dismissed. 

e. Battery claim 

To establish a claim of battery under Michigan law, a plaintiff 

must show a “wilful [sic] and harmful or offensive touching of another 

person which results from an act intended to cause such a contact.” 

VanVorous v. Burmeister, 262 Mich. App. 467, 482-83 (2004) (quotation 

omitted). Touching is an essential element of the tort. See Kolley v. 

Adult Protective Servs., 786 F. Supp. 2d 1277, 1297 (E.D. Mich. 2011). 

Plaintiff sets forth no evidence that any employee of defendant 

Oakwood impermissibly touched her. Rather, she argues that the 

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alleged injuries caused by the officers is “attributable” to Oakwood, but 

still fails to establish what an employee of Oakwood did to make it so. 

As to the City Defendants, plaintiff has not set forth sufficient 

evidence to establish a “harmful or offensive” touching, only a 

legitimate one. When a defendant “use[s] reasonable force to effect [a] 

lawful arrest of [a] plaintiff, the plaintiff’s assault and battery claims 

cannot withstand summary judgment.” Sterling-Ward v. Tujaka, 414 F. 

Supp. 2d 727, 742 (E.D. Mich. 2006) (citing Kahlich v. City of Grosse 

Pointe Farms, 120 F. App’x 580, 586 (6th Cir. 2005)). 

The only evidence that plaintiff sets forth is her own affidavit, in 

which she claims that she was stomped on, kicked, punched, and 

otherwise beaten by the officers. It is not just that her affidavit is 

contrary to every other account in the case. As noted by the City 

Defendants, the only medical records provided by plaintiff show that 

she “sought treatment for shoulder pain that she claims occurred as a 

result of” the arrest “more than [fifteen] months after the alleged 

‘injury’ and” within a week of her deposition. (See Dkt. 87 at 25-26 

(citing Dkt. 87-26; Dkt. 87-27).) She later returned for a follow-up visit. 

(See id.) She testified in her deposition that these are the only two 

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times she sought medical attention related to her alleged injuries from 

the arrest. (Id. at 26 (citing Dkt. 87-3 at 22).) 

No reasonable juror could find for plaintiff based on this “mere 

scintilla” of evidence—two records from visits to the doctor, which show 

very little, within days of her deposition yet more than a year after the 

alleged injury. See Stratford v. Merlo, No. 12-CV-13013, 2013 U.S. Dist. 

LEXIS 105547, at *19-20 (E.D. Mich. July 29, 2013) (granting 

defendant summary judgment when plaintiff’s “eleventh-hour 

statements at his deposition” were “not supported by any evidence in 

the record”); Mohamud v. Johnson, No. C08-1833-JCC, 2009 U.S. Dist. 

LEXIS 133407, at *5-6 (W.D. Wash. Nov. 19, 2009) (summary judgment 

for officer because plaintiff’s only evidence of excessive force was his 

uncorroborated testimony that plaintiff had been kneed in back, kicked 

in right hip, and struck four times in face and ribs). This claim is 

therefore dismissed. 

f. Malicious prosecution claim 

To establish a claim of malicious prosecution under Michigan law, 

a plaintiff must show that (1) defendants initiated a criminal 

prosecution against her, (2) the criminal proceedings terminated in her 

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favor, (3) the private entity who instituted or maintained the 

prosecution lacked probable cause for its actions, and (4) the action was 

undertaken with malice or a purpose in instituting the criminal claim 

other than bringing the offender to justice. Walsh v. Taylor, 263 Mich. 

App. 618, 632-33 (2004). When termination “results from a compromise 

or settlement or is brought about by an action of the accused as a 

courtesy or favor or by some act of the accused that prevents the 

litigation, there is no favorable termination that will serve as a basis for 

a cause of action for malicious prosecution.” Cox v. Williams, 233 Mich. 

App. 388, 394 (1999). 

Here, the criminal proceedings against plaintiff were terminated 

after the parties mutually agreed to dismiss the charges. (See Dkt. 87-

19; Dkt. 87-20.) Thus, plaintiff cannot establish the second element of 

the claim. See Cox, 233 Mich. App. at 394. 

But even assuming that she could, plaintiff has not set forth 

sufficient evidence to support her argument that defendants acted with 

malice. “Malice” is “a purpose other than that of securing the proper 

adjudication of the claim.” Payton v. City of Detroit, 211 Mich. App. 

375, 395 (1995). Plaintiff argues that defendant Oakwood intended to 

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retaliate against her for having an “anti Heritage sign,” and thus “lied 

and falsified records to pursue her false arrest.” (Dkt. 95 at 22.) 

According to plaintiff, this was so that defendant Oakwood could “get 

her out of the way to falsely imprison her mother and illegally obtain an 

ex parte appointment of a temporary guardian.” (Id.) None of the 

evidence, except her conclusory statements in her affidavits, supports 

this speculation. 

As to the City Defendants, plaintiff argues that they worked with 

defendant Oakwood to bring “about the false charges” and that officer 

Wojtowicz “wrote a report willfully omitting critical facts” to “make it 

appear that she was a horrible person attacking her mother.” (Dkt. 108 

at 18.) Plaintiff speculates that “[i]t is reasonable that the charges may 

have been dismissed at her arraignment if Wojtowicz had not omitted 

critical facts.” (Id.) But as set forth above, the City Defendants, even 

accepting that they relied on “the nurses[’] statements [that] were 

hearsay and denied by [p]laintiff” (Dkt. 108 at 18-19), had probable 

cause to arrest and later arraign plaintiff. 

Plaintiff’s claim is dismissed because she cannot establish that 

“the criminal proceedings terminated in her favor” given the mutual 

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agreement to dismiss the case. Cox, 233 Mich. App. at 394. Even if she 

could, she fails to set forth any evidence to establish that defendant 

Oakwood or the City Defendants acted with malice, that is, “a purpose 

other than that of securing the proper adjudication of the claim.” 

Payton, 211 Mich. App. at 395. 

g. Motion to amend complaint 

Over one year after filing her original complaint, and on the eve of 

the dispositive motions deadline, plaintiff filed a motion to amend, 

seeking to add additional claims: Count VII intentional interference 

with plaintiff’s authority as patient advocate-health care power of 

attorney and Count VIII defamation. (Dkt. 83-1.) She also seeks to add 

Dr. Wayel Katrib, Bethany Nalepka, and Janet Stevens, all current or 

former employees of defendant Oakwood Healthcare, Inc., as 

defendants. (Id.) This is plaintiff’s second attempt to file an amended 

complaint, the first having been denied after a hearing. (See Dkt. 57.) 

Plaintiff’s motion to amend is denied for several reasons. First, 

the proposed amendment is nearly identical to the one from March 2015 

that the Court previously denied plaintiff leave to enter. It seeks to add 

the same parties, the same two counts, and the same supporting 

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allegations. (Compare Dkt. 33-1 with Dkt. 83-1.) For the same reasons 

the first motion to amend was denied, the Court denies this one. 

Second, plaintiff fails to demonstrate “good cause” under Rule 16 

why the schedule should be modified. See Fed. R. Civ. P. 16(b)(4) (“A 

schedule may be modified only for good cause and with the judge’s 

consent.”). “Once the scheduling order’s deadline passes, a plaintiff first 

must show good cause under Rule 16(b) for failure earlier to seek leave 

to amend before a court will consider whether amendment is proper 

under Rule 15(a).” Leary v. Daeschner, 349 F.3d 888, 909 (6th Cir. 

2003). An “important consideration for a district court deciding 

whether Rule 16’s ‘good cause’ standard is met is whether the opposing 

party will suffer prejudice by virtue of the amendment.” Id. 

The scheduling order entered in this case provided for a cutoff of 

November 15, 2014, to amend the pleadings. (Dkt. 19.) Both of 

plaintiff’s motions to amend came after that time. The one at issue here 

was filed on October 28, 2015 (Dkt. 83), nearly one year after the 

deadline in the scheduling order had passed. In her reply, plaintiff 

argues that good cause is shown because the attorney for defendant 

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Oakwood misled her regarding the individual defendants she seeks to 

add. (Dkt. 89 at 6-7.) 

But as highlighted by defendant Oakwood, plaintiff was aware of 

their identities even before the commencement of this litigation. (Dkt. 

84 at 7-8.) And the two claims plaintiff seeks to add to the complaint 

are based on information that plaintiff knew before the filing of the 

complaint. Moreover, defendants would be prejudiced by the 

amendment. Discovery had passed and the dispositive motions 

deadline was imminent when plaintiff filed the motion. See, e.g., 

Edwards v. Grand Rapids Cmty. Coll., No. 1:09-cv-1067, 2010 U.S. Dist. 

LEXIS 52340, at *7-8 (W.D. Mich. May 27, 2010) (“Prejudice to the 

defendants in these circumstances is patent. Plaintiff seeks to upset 

the orderly progress of this case towards resolution by injecting claims 

against four new defendants sixty days before the close of discovery.”). 

Because plaintiff was “obviously aware of the basis of the claim for 

many months” before the deadline for amended pleadings and 

defendants would be prejudiced at this point, plaintiff’s motion is 

denied. See Leary, 349 F.3d at 908. 

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IV. Conclusion 

To fully consider defendants’ motions for summary judgment, 

plaintiff’s motion to grant corrections (Dkt. 111) is GRANTED, and 

plaintiff’s motion for leave to file index (Dkt. 115) is GRANTED. 

However, plaintiff’s motion to compel (Dkt. 114) is DENIED, because 

plaintiff was given the opportunity to view the records sought in the 

motion but did not exercise it and otherwise has possession of the full 

copy of the records. (See Dkt. 69.) 

The Court has had a great deal of involvement with this case. 

Hearings have been held on various motions, and the plaintiff’s 

deposition was convened at the Court so the undersigned could rule on 

objections and assist the parties in proceeding with the deposition in an 

effective manner. One thing is clear. Plaintiff feels deeply that 

defendants caused her mother’s death and subjected plaintiff to 

aggravation when she tried to save her mother’s life. Unfortunately, 

given the evidence presented, this case is not the appropriate vehicle for 

addressing these concerns. 

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For the reasons set forth above, defendants’ motions for summary 

judgment (Dkt. 86; Dkt. 87) are GRANTED, and plaintiff’s motion to 

amend (Dkt 83) is DENIED. 

IT IS SO ORDERED. 

Dated: November 17, 2016 s/Judith E. Levy 

Ann Arbor, Michigan JUDITH E. LEVY 

United States District Judge 

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s 

ECF System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on November 17, 2016. 

s/Felicia M. Moses 

FELICIA M. MOSES 

Case Manager 

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