1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

VLADIMIR STOJCEVSKI, Individually, and as Personal Representative of the 

Estate of DAVID STOJCEVSKI, Deceased,

Plaintiffs, Case No. 15-cv-11019

Hon. Linda V. Parker

v. Mag. David R. Grand

COUNTY OF MACOMB, et al,

Defendants.

IHRIE O’BRIEN CHAPMAN LAW GROUP

Robert D. Ihrie (P26451) Ronald W. Chapman (P37603)

Harold A. Perakis (P35921) Robert A. Welch, Jr. (P73445)

Attorneys for Plaintiff Attorneys for Correct Care Solutions

24055 Jefferson Avenue, Suite 2000 Defendants named herein1

St. Clair Shores, MI 48080 40950 Woodward Ave., Suite 120

(586) 778-7778 Bloomfield Hills, MI 48304

ihrieobrien@hotmail.com (248) 644-6326

perakislaw@hotmail.com RChapman@ChapmanLawGroup.com

John A. Schapka (P36731)

Robert S. Gazall (P41350)

Macomb County Corporation Counsel

Attorneys for Macomb County 

Defendants

One S. Main Street, 8th Floor

Mount Clemens, MI 48043

(586) 469-6346

john.schapka@macombgov.org

robert.gazall@macombgov.org

RWelch@ChapmanLawGroup.com

 

1 Correct Care Solutions, Inc. (hereinafter “CCS”); Monica Cueny, DON; Vicky Bertram, 

LPN; Mical Bey-Shelly, LPN; Lawrence Sherman, M.D.; Tiffany Deluca, RN; Kelly 

Mann; Chantalle Brock; Danyelle Nelson; H. Erhlich; Amanda Bishop; Cynthia Deview; 

Monica Van Damme; Jaclyn Cubanski; Sarah Breen; and Deanne Pavey.

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CORRECT CARE SOLUTIONS DEFENDANTS’ MOTION TO DISMISS 

FIRST AMENDED COMPLAINT UNDER FED. R. CIV. P. 12(b)

NOW COME Defendants, CORRECT CARE SOLUTIONS, INC.

(hereinafter “CCS”); MONICA CUENY, DON; VICKY BERTRAM, LPN; MICAL 

BEY-SHELLY, LPN; LAWRENCE SHERMAN, M.D.; TIFFANY DELUCA, RN; 

KELLY MANN; CHANTALLE BROCK; DANYELLE NELSON; H. ERHLICH; 

AMANDA BISHOP; CYNTHIA DEVIEW; MONICA VAN DAMME; JACLYN 

CUBANSKI;

2 SARAH BREEN; and DEEANN PAVEY, Jointly and Severally, by 

and through their attorneys, CHAPMAN LAW GROUP, and for their Motion to 

Dismiss Pursuant to Fed. R. Civ. P. 12(b) for failure to state a claim upon which 

relief can be granted, state as follows:

1. Plaintiffs filed their Complaint on March 18, 2015, alleging 

Constitutional violations and state law claims while incarcerated at the Macomb 

County Jail. Plaintiff filed what purports to be a First Amended Complaint on June 

2, 2015. (The Complaint does not state “Amended” on its face.)

2. Plaintiff, Vladimir Stojcevski, sues on his own behalf and as the 

Personal Representative of the Estate of his deceased brother, David Stojcevski.

 

2 Monica Van Damme is now known as Monica Franks; Jaclyn’s last name is 

Lubanski, not Cubanski.

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3. Vladimir and David Stojcevski were incarcerated in the Macomb 

County Jail on or about June 11, 2014, both to serve thirty (30) day jail sentences on 

different charges. [Dkt. No. 1, Pg ID 6]

4. David was placed in a medical detox unit for opioid withdrawal [Dkt. 

No. 1, Pg ID 9], and Vladimir was placed in a holding cell, and then later placed in 

the detox unit. [Dkt. No. 1, Pg ID 10]

5. David cleared from opioid detox on June 15, 2014, and on June 17, 

2014, he was placed in the mental health unit. [Dkt. No. 1, Pg ID 11] David allegedly 

went through benzodiazepine withdrawal, which caused his death. [Dkt. No. 1, Pg 

ID 13]

6. On June 27, 2014, David was found in medical distress by jail staff and 

transported to the hospital. [Dkt. No. 1, Pg ID 14] David died on June 27, 2014. 

[Dkt. No. 1, Pg ID 15]

7. Vladimir was transferred from a holding cell to the detox unit on June 

14, 2014, and remained there until June 16, 2014. [Dkt. No. 1, Pg ID 15] He 

allegedly suffered vomiting spells and incontinence, and was sent to the hospital on 

June 23, 2014. [Dkt. No. 1, Pg ID 15-16]

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8. The amended complaint filed on June 2, 2015. [Dkt. No. 9, Pg ID 1]

The Counts allege:

i. Violation of 42 U.S.C. § 1983 and the Eighth and Fourteenth

Amendments on behalf of David;

ii. Denial of medical treatment for serious medical needs on behalf 

of David;

iii. Gross negligence and intentional, willful, and wanton conduct on 

behalf of David;

iv. Failure to train, inadequate policies and/or procedures, customs 

and practices and failure to supervise – deliberate indifference –

Macomb County and Wickersham on behalf of David; 

v. Violation of 42 U.S.C. § 1983 and the Eighth and Fourteenth

Amendments on behalf of Vladimir;

vi. Denial of medical treatment for serious medical needs on behalf 

of Vladimir;

vii. Gross negligence and intentional, willful, and wanton conduct on 

behalf of Vladimir;

viii. Failure to train, inadequate policies and/or procedures, customs

and practices and failure to supervise – deliberate indifference –

Macomb County and Wickersham on behalf of Vladimir; and

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ix. Intentional infliction of emotional distress on behalf of David 

and Vladimir.

9. 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., 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009).

10. A Complaint may be dismissed for failure to state a claim if “it fails to 

give the Defendant fair notice of what the...claim is and the grounds upon which it 

rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. 

Ed. 2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. 

Ed. 2d 80 (1957)).

IMPROPER JOINDER UNDER FRCP 20

11. Plaintiffs have improperly joined their claims under Fed. R. Civ. P. 20.

The threshold question is whether the Plaintiffs have properly joined their claims in 

one complaint. Carter v. Oakland County Sheriff's Dep't & Jail, 2015 U.S. Dist. 

LEXIS 21545, 3-4 (E.D. Mich. Feb. 23, 2015).

12. Pursuant to Rule 20(a)(1), Plaintiffs “may join in one action as 

Plaintiffs if...they assert any right to relief jointly, severally, or in the alternative with 

respect to or arising out of the same transaction, occurrence, or series of transactions 

or occurrences; and...any question of law or fact common to all Plaintiffs will arise 

in the action.” Rule 20(a)(1)(a)-(b).

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13. Plaintiffs must therefore demonstrate the actions “arising out of the 

same transaction, [or] occurrence” and that the claims have “questions of law or 

fact” in common. Plaintiff ,Vladimir Stojcevski, while Personal Representative to 

his deceased brother, David Stojcevski’s Estate, does not have individual claims in 

common with the Estate’s claims concerning David’s death.

14. Both Vladimir and David were incarcerated at the Macomb County Jail; 

they were each housed separately and had separate encounters with medical 

personnel, jail staff, and separate outcomes to their stays. The only question of fact 

that is the same is that they were both at the jail at approximately the same time. 

That alone is not sufficient to state claims arising out of the same occurrence with 

questions of law and facts in common. See, Carter v. Oakland County Sheriff's Dep't 

& Jail, 2015 U.S. Dist. LEXIS 21545, 3-4 (E.D. Mich. Feb. 23, 2015).

RESPONDEAT SUPERIOR NOT APPLICABLE IN 1983 ACTIONS

15. Defendant CCS is not liable under the theory of respondeat superior. 

Dunn v. State of Tenn., 697 F.2d 121, 128 (1983); Street v. Corrections Corporation 

of America, 102 F.3d 810, 817-818 (6th Cir. 1996). Therefore, even if an individual 

agent of CCS did act inappropriately, which Defendants strongly deny, there is no 

liability to CCS.

16. Plaintiff has entirely failed to plead a claim against CCS, as the only 

Count, Count IV, mentioning policy/procedure claims do not name CCS.

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17. Plaintiff has not sufficiently alleged that CCS was deliberately 

indifferent in any fashion, much less that CCS granted an unconstitutional policy, 

practice, or procedure. To state a claim of deliberate indifference against CCS, a 

Plaintiff must plead a claim of a policy, practice, or custom by CCS that is allegedly 

unconstitutional, which proximately caused the injury complained of. See, Monell 

v. New York City Dept. of Soc. Servs., 436 U.S. 658, 694-95, (1978).

MONELL CLAIMS REQUIRE SPECIFIC FACTUAL ALLEGATIONS

REGARDING POLICY, PRACTICE OR PROCEDURE

18. Any allegation of an unconstitutional policy, practice, or procedure 

must be specific, i.e., "to satisfy the Monell requirements a 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.’” Garner v. Memphis Police 

Dep't, 8 F.3d 358, 364 (6th Cir. 1993) (quoting Coogan v. City of Wixom, 820 F.2d 

170, 176 (6th Cir. 1987)), cert. denied, U.S., 114 S. Ct. 1219, 127 L.Ed.2d 565 

(1994). See also, Searcy v. City of Dayton, 38 F.3d 282, 287 (6th Cir. 1994).

GROSS NEGLIGENCE IS NOT A VALID CLAIM AS TO

NON-GOVERNMENTAL EMPLOYEES

19. Gross negligence is different than deliberate indifference and is not a 

viable claim under Michigan law against these Defendants. The Court in Jones v. 

Muskegon County, 625 F.3d 935, 947 (6th Cir. Mich. 2010) explains that the 

standard for deliberate indifference and the standard for gross negligence are 

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different, and that deliberate indifference exceeds gross negligence. Citing, Ross v. 

Duggan, 402 F.3d 575, 590 n. 7 (6th Cir. 2004).

20. MCL § 691.1407(2)(c) defines gross negligence as “conduct so reckless 

as to demonstrate a substantial lack of concern for whether an injury results.” 

However, gross negligence is not considered a separate cause of action under MCL 

§ 691.1407.

21. Gross negligence is an exception to the governmental immunity statute 

in Michigan that protects governmental employees. However, as Hamer v. County 

of Kent, 2013 U.S. Dist. LEXIS 186512, *25-27 (W.D. Mich. Nov. 6, 2013) 

explains, while the medical Defendants are considered state actors, they are not 

governmental employees to whom the gross negligence exception would apply.

22. Even if gross negligence were a viable claim, the CCS Defendants are 

licensed healthcare professionals and, as such, must be sued under the medical 

malpractice framework established by the legislature which requires, among other 

things, the filing of a Notice of Intent one hundred and eighty two (182) days prior 

to filing a Complaint and the attachment of an Affidavit of Merit to the Complaint. 

See, Bryant v. Oakpointe Villa Nursing Centre, 471 Mich. 411, 422, 684 N.W.2d 

864, 871 (2004); Scarsella v Pollak, 461 Mich. 547, 553 (2000); and MCL § 

600.2912b.

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INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

23. “The elements of a prima facie case of intentional infliction of 

emotional distress are: (1) extreme or outrageous conduct, (2) which intentionally or 

recklessly, (3) causes, (4) extreme emotional distress.” McCahill v. Commercial 

Union Ins. Co., 179 Mich. App. 761 (1989). Plaintiff fails to meet these 

requirements.

24. “Liability attaches only when a Plaintiff can demonstrate that the 

Defendant’s conduct is ‘so outrageous in character, and so extreme in degree, as to 

go beyond all possible bounds of decency, and to be regarded as atrocious and utterly 

intolerable in a civilized community.’ A Defendant is not liable for ‘mere insults, 

indignities, threats, annoyances, petty oppressions, or other trivialities.’” Lewis v. 

LeGrow, 258 Mich. App. 175 (2003) (citations omitted); Doe v. Mills, 212 Mich. 

App. 73 (1995). Plaintiff cannot demonstrate that in this context when Defendants 

provided medical care.

DUE PROCESS CLAIMS ARE NOT VALID OR PROPER

25. In the context of medical care, a prisoner’s Eighth Amendment right to 

be free of cruel and unusual punishment is violated only when a prisoner can 

demonstrate that a “deliberate indifference” has been shown to his serious medical 

need. Estelle v. Gamble, 429 U.S. 97, 104 (1976).

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26. However, a claim “based on the Due Process Clause of the Fourteenth 

Amendment...does not transform every tort committed by a state actor into a 

constitutional violation.” Deshaney v. Winnebago County Dep't of Social Services, 

489 U.S. 189, 202 (U.S. 1989).

27. In Parratt v. Taylor, 451 U.S. 527, 68 L. Ed. 2d 420, 101 S. Ct. 1908 

(1981), overruled in part on other grounds, in 474 U.S. 327, 88 L. Ed. 2d 662, 106 

S. Ct. 662 (1986), the Supreme Court stated that a due process claim involving an 

unauthorized or negligent deprivation of property, requires that the 42 U.S.C 1983 

claim “must allege that the state's post-deprivation procedures are inadequate to 

remedy the deprivation.” Allen v. Leis, 154 F. Supp. 2d 1240, 1267 (S.D. Ohio 

2001). Plaintiffs make no such specific claim here.

28. Further, if Plaintiffs intend an equal protection claim under the 

Fourteenth Amendment, Plaintiffs must demonstrate that they were treated 

differently than others similarly situated, i.e., the other prisoner. Arms v. Magaw, 

91 F. Supp. 2d 1061, 1070 (E.D. Mich. 2000). Again, Plaintiffs have only vague 

claims and do not demonstrate or claim that Plaintiffs were treated differently than 

other prisoners.

NEGLIGENCE IS AN INSUFFICIENT BASIS FOR LIABILITY

29. Mere negligence in identifying or treating a medical need does not rise 

to the level of a valid mistreatment claim under the Eighth Amendment. Estelle v. 

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Gamble, 429 U.S. 97, 106 (1976). Differences in judgment between an inmate and 

prison medical personnel regarding the appropriate medical diagnosis or treatment 

are not enough to state a deliberate indifference claim. Sanderfer v. Nichols, 62 F.3d 

151,154-155 (6th Cir. 1999); Westlake v. Lucas, 537 F.2d 857, 860 n. 5 (6th Cir. 

1976). The courts typically do not intervene in questions of medical judgment. 

Youngberg v. Romeo, 457 U.S. 307, 321 (1982).

30. Counsel for Defendants herein sought the concurrence of Plaintiff’s 

counsel with the relief requested herein prior to filing this Motion in accordance with 

E.D. Mich. L.R. 7.1; June 18, 2015. The requested relief was denied by Plaintiffs’ 

counsel.

WHEREFORE Defendants, CORRECT CARE SOLUTIONS, INC. (hereinafter

“CCS”); MONICA CUENY, DON; VICKY BERTRAM, LPN; MICAL BEYSHELLY, LPN; LAWRENCE SHERMAN, M.D.; TIFFANY DELUCA, RN; KELLY 

MANN; CHANTALLE BROCK; DANYELLE NELSON; H. ERHLICH; AMANDA

BISHOP; CYNTHIA DEVIEW; MONICA VAN DAMME; JACLYN CUBANSKI; 

SARAH BREEN; and DEEANN PAVEY, Jointly and Severally, respectfully request 

that this Honorable Court grant partial dismissal as set forth in this Motion to Dismiss.

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Respectfully submitted,

CHAPMAN LAW GROUP

Dated: June 22, 2015 /s/Ronald W. Chapman

Ronald W. Chapman (P37603)

Attorney for Correct Care

Solutions Defendants

40950 Woodward Ave., Suite 120

Bloomfield Hills, MI 48304

(248) 644-6326

RChapman@ChapmanLawGroup.com

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

VLADIMIR STOJCEVSKI, Individually, and as Personal Representative of the 

Estate of DAVID STOJCEVSKI, Deceased,

Plaintiffs, Case No. 15-cv-11019

Hon. Linda V. Parker

v. Mag. David R. Grand

COUNTY OF MACOMB, et al,

Defendants.

IHRIE O’BRIEN CHAPMAN LAW GROUP

Robert D. Ihrie (P26451) Ronald W. Chapman (P37603)

Harold A. Perakis (P35921) Robert A. Welch, Jr. (P73445)

Attorneys for Plaintiff Attorneys for Correct Care Solutions

24055 Jefferson Avenue, Suite 2000 Defendants named herein3

St. Clair Shores, MI 48080 40950 Woodward Ave., Suite 120

(586) 778-7778 Bloomfield Hills, MI 48304

ihrieobrien@hotmail.com (248) 644-6326

perakislaw@hotmail.com RChapman@ChapmanLawGroup.com

John A. Schapka (P36731)

Robert S. Gazall (P41350)

Macomb County Corporation Counsel

Attorneys for Macomb County 

Defendants

One S. Main Street, 8th Floor

Mount Clemens, MI 48043

(586) 469-6346

john.schapka@macombgov.org

robert.gazall@macombgov.org

RWelch@ChapmanLawGroup.com

 

3 Correct Care Solutions, Inc. (hereinafter “CCS”); Monica Cueny, DON; Vicky Bertram, 

LPN; Mical Bey-Shelly, LPN; Lawrence Sherman, M.D.; Tiffany Deluca, RN; Kelly 

Mann; Chantalle Brock; Danyelle Nelson; H. Erhlich; Amanda Bishop; Cynthia Deview; 

Monica Van Damme; Jaclyn Cubanski; Sarah Breen; and Deeann Pavey.

4:15-cv-11019-LVP-DRG Doc # 15 Filed 06/22/15 Pg 13 of 46 Pg ID 386
ii

CORRECT CARE SOLUTIONS DEFENDANTS’ BRIEF IN SUPPORT OF 

MOTION TO DISMISS FIRST AMENDED COMPLAINT UNDER

FED. R. CIV. P. 12(b)

PROOF OF SERVICE

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TABLE OF CONTENTS

PAGE

INDEX OF AUTHORITIES............................................................................. iv-vi

INDEX OF EXHIBITS........................................................................................ vii

STATEMENT OF ISSUES PRESENTED...................................................... viii-ix

CONTROLLING/APPROPRIATE AUTHORITY FOR RELIEF SOUGHT..........x

STATEMENT OF FACTS .....................................................................................1

STANDARD OF REVIEW ....................................................................................2

ARGUMENT..........................................................................................................3

I. WHETHER THERE IS A MISJOINDER OF PLAINTIFFS REQUIRING 

PLAINITFFS’ CLAIMS TO BE SEVERED INTO SEPARATE SUITS......3

II. DEFENDANT CCS IS ENTITLED TO DISMISSAL DUE TO 

PLAINTIFF’S FAILURE TO STATE A CLAIM OF 

POLICY/PRACTICE/OR PROCEDURE .....................................................7

III. PLAINTIFF HAS FAILED TO STATE A CLAIM OF GROSS 

NEGLIGENCE...........................................................................................10

IV. PLAINTIFF HAS FAILED TO STATE A CLAIM OF INTENTIONAL 

INFLICTION OF EMOTIONAL DISTRESS.............................................14

V. PLAINTIFF HAS FAILED TO STATE A DUE PROCESS CLAIM .........16

VI. PLAINTIFF HAS FAILED TO STATE A CLAIM OF DELIBERATE 

INDIFFERENCE AS TO DEFENDANTS .................................................17

CONCLUSION ....................................................................................................21

RELIEF REQUESTED.........................................................................................23

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iv

INDEX OF AUTHORITIES

CASES PAGE

Allen v. Leis, 154 F. Supp. 2d 1240, 1267 (S.D. Ohio 2001)...........................10, 17

Arms v. Magaw, 91 F. Supp. 2d 1061, 1070 (E.D. Mich. 2000) ......................10, 17

Ashcroft v. Iqbal, 556 U.S._, 129 S. Ct. 1937, 173 L.

Ed. 2d 868 (2009) ................................................................................. x, 2, 3, 5, 22

Bell Atlantic v Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955,

167 L. Ed. 2d 929 (2007) .................................................................... x, 3, 5, 21, 22

Bryant v. Oakpointe Villa Nursing Centre, 471 Mich. 411, 422,

684 N.W.2d 864, 871 (2004) ............................................................................8, 13

Carter v. Oakland County Sheriff's Dep't & Jail, 2015 U.S.

Dist. LEXIS 21545, 3-4 (E.D. Mich. Feb. 23, 2015)....................... vii, 3, 4, 5, 6, 21

Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432,

439, 87 L. Ed. 2d 313, 105 S. Ct. 3249 (1985)......................................................17

Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.

Ct. 99, 2 L. Ed. 2d 80 (1957) .................................................................... x, 3, 5, 23

Coogan v. City of Wixom, 820 F.2d 170, 176 (6th Cir. 1987)..............................7, 8

Copeland v. Machulis, 57 F.3d 476, 481 (6th Cir.1995)..........................................8

Coughlin v. Rogers, 130 F.3d 1348, 1350-1351 (9th Cir. Cal. 1997).....5

Daniel v. Young, 50 Fed. Appx. 221, 222 (6th Cir. Tenn. 2002) ...........................19

Deshaney v. Winnebago County Dep't of Social Services, 489

U.S. 189, 202 (U.S. 1989)...............................................................................10, 16

Doe v. Mills, 212 Mich. App. 73 (1995)..................................................................9

Dunn v. State of Tenn., 697 F.2d 121, 128 (1983)...............................................6, 7

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v

Durham v. Nu'Man, 97 F.3d 862, 868-69 (6th Cir. 1996)......................................20

Estelle v. Gamble, 429 U.S. 97, 106 (1976) .......................................... 9, 10, 18, 20

Fundunburks v. Capital Area Transp. Auth., 748 N.W.2d 804 (Mich. 2008) ........11

Garner v. Memphis Police Dep't, 8 F.3d 358, 364 (6th Cir. 1993) ......................7, 8

Graham v. Ford, 237 Mich. App. 670, 674-675 (1999).........................................15

Hamer v. County of Kent, 2013 U.S. Dist. LEXIS 186512, *25-27

(W.D. Mich. Nov. 6, 2013).........................................................................vii, 8, 11

Holmes v. Allstate Ins. Co., 119 Mich. App. 710, 714-715 (1982) ........................14

Hullett v. Smiedendorf, 52 F. Supp. 2d 817, 828 (D. Mich. 1999)...........................9

Jackson v. City of Columbus, 194 F.3d 737, 750 (6th Cir. 1999)...........................17

Jones v. Muskegon County, 625 F.3d 935, 947 (6th Cir. Mich. 2010) ...............7, 10

Kentucky Department of Corrections v. Thompson,

490 U.S. 454, 460, 104 L. Ed. 2d 506, 109 S. Ct. 1904 (1989)..............................16

Ketron v. Chattanooga-Hamilton County Hosp. Authority, 919 F.

Supp. 280, 284-285 (E.D. Tenn. 1996) ...................................................................8

Lewis v. LeGrow, 258 Mich. App. 175 (2003) ........................................................9

McCahill v. Commercial Union Ins. Co., 179 Mich. App. 761 (1989) ....................9

Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658,

694-95, (1978) .......................................................................................... 7, 8, 9, 21

Mullins v. Stratton, 878 F. Supp. 1016, 1019-1020 (E.D. Ken. 1995) .....................9

Parratt v. Taylor, 451 U.S. 527, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981).....10, 17

Poppen v. Tovey, 664 N.W.2d 269, 273 (Mich. Ct. App. 2003) ............................11

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vi

Rambus v. Wayne Co. Gen. Hosp., 483 N.W.2d 455 (Mich. Ct. App. 1992) .........12

Roberts v. City of Troy, 773 F.2d 720, 723 (6th Cir. 1985) ...................................16

Ross v. Duggan, 402 F.3d 575, 590 n. 7 (6th Cir. 2004)....................................7, 10

Sanderfer v. Nichols, 62 F.3d 151,154-155 (6th Cir. 1999)........................ 11, 18, 20

Scarsella v Pollak, 461 Mich. 547, 553 (2000); and MCL § 600.2912b ..................8

Searcy v. City of Dayton, 38 F.3d 282, 287 (6th Cir. 1994).................................7, 8

Street v. Corrections Corporation of America, 102 F.3d 810,

817-818 (6th Cir. 1996) ......................................................................................6, 7

Thompson v. County of Medina, 29 F.3d 238, 242 (6th Cir. Ohio 1994) ...............17

West v. Atkins, 487 U.S. 42 (1988)........................................................................13

Westlake v. Lucas, 537 F.2d 857, 860 n. 5 (6th Cir. 1976) ................... 11, 18, 19, 20

Youngberg v. Romeo, 457 U.S. 307, 321 (1982) .............................................11, 19

FEDERAL STATUTES

42 U.S.C. § 1983............................................................ 1, 2, 4, 6-10, 13, 16, 17, 20

STATE STATUTES

MCL § 691.1407...............................................................................................8, 11

MCL § 600.1407(2) ........................................................................................11, 12

MCL § 691.1407(2)(c)......................................................................................8, 10

MCL § 600.2912b.........................................................................................v, 8, 14

FEDERAL RULES OF CIVIL PROCEDURE

Fed. R. Civ. P. 12(b) .......................................................................................... ii, 2

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vii

INDEX OF EXHIBITS

EXHIBIT A Carter v. Oakland County Sheriff's Dep't & Jail, 2015 U.S. Dist. 

LEXIS 21545, 3-4 ( E.D. Mich. Feb. 23, 2015)

EXHIBIT B Hamer v. County of Kent, 2013 U.S. Dist. LEXIS 186512, *25-

27 (W.D. Mich. Nov. 6, 2013)

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viii

STATEMENT OF ISSUES PRESENTED

WHETHER THERE IS A MISJOINDER OF 

PLAINTIFFS REQUIRING PLAINITFFS’ CLAIMS TO 

BE SEVERED INTO SEPARATE SUITS:

Defendants Answer: YES.

Plaintiffs Answer: NO.

WHETHER CCS IS ENTITLED TO DISMISSAL DUE 

TO PLAINTIFFS’ FAILURE TO STATE A CLAIM OF 

POLICY, PRACTICE OR PROCEDURE:

Defendants Answer: YES.

Plaintiffs Answer: NO.

WHETHER PLAINTIFFS FAILED TO STATE A 

CLAIM OF GROSS NEGLIGENCE:

Defendants Answer: YES.

Plaintiffs Answer: NO.

WHETHER PLAINTIFFS FAILED TO STATE A 

CLAIM OF INTENTIONAL INFLICTION OF 

EMOTIONAL DISTRESS:

Defendants Answer: YES.

Plaintiffs Answers: NO.

WHETHER PLAINTIFFS FAILED TO STATE A DUE 

PROCESS CLAIM:

Defendants Answer: YES.

Plaintiffs Answer: NO.

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WHETHER PLAINTIFFS FAILED TO STATE A 

CLAIM OF DELIBERATE INDIFFERENCE AS TO 

THE MAJORITY OF DEFENDANTS:

Defendants Answer: YES.

Plaintiffs Answer: NO.

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CONTROLLING/APPROPRIATE AUTHORITY FOR RELIEF SOUGHT

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._, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). A Complaint may 

be dismissed for failure to state a claim if "it fails to give the Defendant fair notice 

of what the ... claim is and the grounds upon which it rests." Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) (quoting 

Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)). A 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. Iqbal, 129 S. Ct. at 1949. In order to state a claim, a Complaint "requires 

more than labels and conclusions, and a formulaic recitation of the elements of a 

cause of action will not do." Twombly, 550 U.S. at 555 (2007); see also, Iqbal, 129 

S. Ct. at 1949 (2009) (“Threadbare recitals of the elements of a cause of action, 

supported by mere conclusory statements, do not suffice.”).

“[T]he tenet that a court must accept as true all of the allegations contained in 

a complaint is inapplicable to legal conclusions.” Iqbal, 129 S. Ct. at 1949.

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1

STATEMENT OF FACTS

Vladimir and David Stojcevski were incarcerated in the Macomb County Jail 

on or about June 11, 2014, both serving thirty (30) day jail sentences on different 

charges. [Dkt. No. 1, Pg ID 6] David was placed in a medical detox unit Dkt. No. 

1, Pg ID 9] and Vladimir was placed in a holding cell, and later placed in the detox 

unit. [Dkt. No. 1, Pg ID 10]

David cleared from detox on June 15, 2014, and on June 17, 2014, was placed 

in the mental health unit. [Dkt. No. 1, Pg ID 11] David was allegedly suffering from 

benzodiazepine withdrawal, which caused his death. [Dkt. No. 1, Pg ID 13] David 

was found by jail staff on June 27, 2014, in medical distress and transported to the 

hospital. [Dkt. No. 1, Pg ID 14] David died on June 27, 2014. [Dkt. No. 1, Pg ID 

15] Vladimir was transferred from a holding cell to the detox unit on June 14, and 

remained there until June 16, 2014. [Dkt. No. 1, Pg ID 15] He allegedly suffered 

vomiting spells and incontinence, and was sent to the hospital on June 23, 2014. 

[Dkt. No. 1, Pg ID 15-16].

The Amended Complaint filed on June 2, 2015. [Dkt. No. 9, Pg ID 1] alleges:

i. Violation of 42 U.S.C § 1983 and the Eighth and Fourteenth

Amendments on behalf of David;

x. Denial of medical treatment for serious medical needs on behalf 

of David;

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2

xi. Gross negligence and intentional, willful, and wanton conduct on 

behalf of David;

xii. Failure to train, inadequate policies and/or procedures, customs 

and practices and failure to supervise – deliberate indifference –

Macomb County and Wickersham on behalf of David; 

xiii. Violation of 42 U.S.C. § 1983 and the Eighth and Fourteenth 

Amendments on behalf of Vladimir;

xiv. Denial of medical treatment for serious medical needs on behalf 

of Vladimir;

xv. Gross negligence and intentional, willful, and wanton conduct on 

behalf of Vladimir;

xvi. Failure to train, inadequate policies and/or procedures, customs 

and practices and failure to supervise – deliberate indifference –

Macomb County and Wickersham on behalf of Vladimir; and

xvii. Intentional infliction of emotional distress on behalf of David 

and Vladimir.

STANDARD OF REVIEW

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._, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). A Complaint may 

4:15-cv-11019-LVP-DRG Doc # 15 Filed 06/22/15 Pg 24 of 46 Pg ID 397
3

be dismissed for failure to state a claim if "it fails to give the Defendant fair notice 

of what the ... claim is and the grounds upon which it rests." Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) (quoting 

Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)). A 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. Iqbal, 129 S. Ct. at 1949. In order to state a claim, a Complaint “requires 

more than labels and conclusions, and a formulaic recitation of the elements of a 

cause of action will not do.” Twombly, 550 U.S. at 555 (2007); see also Iqbal, 129 

S. Ct. at 1949 (2009) (“Threadbare recitals of the elements of a cause of action, 

supported by mere conclusory statements, do not suffice.”)

“[T]he tenet that a court must accept as true all of the allegations contained in 

a complaint is inapplicable to legal conclusions.” Iqbal, 129 S. Ct. at 1949.

ARGUMENT

I. DUE TO MISJOINDER THE PLAINTIFFS’ CLAIMS MUST BE 

SEVERED

The threshold question is whether the Plaintiffs have properly joined their 

claims in one complaint.” Carter v. Oakland County Sheriff's Dep't & Jail, 2015 

U.S. Dist. LEXIS 21545, 3-4 (E.D. Mich. Feb. 23, 2015) (Exhibit A)

Under Rule 18(a), “[a] party asserting a claim...may join, as independent or 

alternative claims, as many claims as it has against an opposing party.” However, 

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4

under Rule 20(a)(1), Plaintiffs “may join in one action as Plaintiffs if...they assert 

any right to relief jointly, severally, or in the alternative with respect to or arising 

out of the same transaction, occurrence, or series of transactions or occurrences; 

and...any question of law or fact common to all Plaintiffs will arise in the action.” 

Rule 20(a)(1)(a)-(b).

Plaintiffs must demonstrate the allegations, 1) “arise out of the same 

transaction, [or] occurrence” and 2) have common “questions of law or fact.”

Plaintiff Vladimir Stojcevski, Personal Representative to his brother, David 

Stojcevski’s Estate, does not have individual claims in common with the Estate’s 

claims concerning David’s death. Both Vladimir and David were incarcerated at the 

Macomb County Jail, they were each housed separately and had separate encounters 

with medical personnel, jail staff, and separate outcomes to their stays. The only 

common allegation is they were both housed at the jail at approximately the same 

time.

In Carter v. Oakland County Sheriff's Dep't & Jail, 2015 U.S. Dist. LEXIS 

21545, 3-4 ( E.D. Mich. Feb. 23, 2015) (Exhibit A) the court explained that 

“[m]ultiple Plaintiffs do not pass this two-part test where each Plaintiff provides a 

different factual background, giving rise to their 'mutual' cause of action.” (citations 

omitted) Also, "Unrelated claims against different Defendants belong in different 

suits...." Carter, supra, citing George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).

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5

Here, David and Vladimir’s claims are different. They were incarcerated in separate 

cells, had separate medical treatment, separate health issues, and separate outcomes. 

The only common facts are that they were brothers and at the jail at the same time. 

Neither shared a cell or course of treatment with the other.

Carter then explains that to determine “whether claims arise from the same 

transaction or occurrence,” the Courts look to the following factors:

1. the time period during which the alleged acts occurred;

2. whether the acts...are related;

3. whether more than one act...is alleged;

4. whether the same supervisors were involved; and

5. whether the Defendants were at different geographical locations.

Carter, supra, citing Proctor v. Applegate, 661 F.Supp.2d 743, 778 (E.D. Mich. 

2009) and other authority. While David and Vladimir’s claims may have shared a 

geographical location and time period, they were in different cells, had different 

interactions with custodial and medical staff; different occurrences and different 

outcomes.

In Coughlin v. Rogers, 130 F.3d 1348, 1350-1351 (9th Cir. Cal. 1997), the 

Court found that the “Plaintiffs fail[ed] to satisfy both the first and second prongs of 

the test for permissive joinder.” The Court explained that the “‘same transaction’

requirement, refers to similarity in the factual background of a claim.” In Coughlin

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6

the court was dealing with delays with petitions and/or applications to INS. The 

Court found that “the basic connection among all the claims is the alleged procedural 

problem of delay. However, the mere allegation of general delay is not enough to 

create a common transaction or occurrence. Each Plaintiff has waited a different 

length of time, suffering a different duration of alleged delay.” Further, the 

Plaintiff’s allegations of delay, caused by different circumstances in each case, did 

not suffice to create a common transaction or occurrence.”

Therefore there were no common questions of law or as “each applicant or 

petitioner presents a different factual situation. Therefore, each must receive 

personalized attention by the INS and, ultimately, by the Court. Accordingly, there 

can be no common issues of fact or law.” Id.

The Court further explained that “although Plaintiffs' claims are all brought 

under the Constitution and the Administrative Procedure Act, the mere fact that all 

Plaintiffs' claims arise under the same general law does not necessarily establish a 

common question of law or fact.” So too here, while both claims may arise under 

42 U.S.C 1983 and the same state laws, a death claim is very different from a claim 

of mistreatment while incarcerated. When “claims do not involve common questions 

of law or fact”, “the interests of justice are not served by joinder of the Plaintiffs in 

this case.” Id.

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7

Further, severing the claims will not deprive either Vladimir or the Estate of 

the ability to bring their claims separately.

II. DEFENDANT CCS IS ENTITLED TO DISMISSAL DUE TO 

PLAINTIFFS’ FAILURE TO STATE A CLAIM OF POLICY, 

PRACTICE OR PROCEDURE

Plaintiffs name CCS, but does not state a claim against them in the Complaint. 

First, CCS is not liable under the theory of respondeat superior. Dunn v. State of 

Tenn., 697 F.2d 121, 128 (1983); Street v. Corrections Corporation of America, 102 

F.3d 810, 817-818 (6th Cir. 1996). Therefore, even if any Defendant did act 

inappropriately (which Defendants strongly deny), there is no liability to CCS.

Second, put simply, Plaintiffs make a claim in Count IV and VIII for failure 

to train, inadequate policies and/or procedures, customs and practices and failure to 

supervise, claiming deliberate indifference but makes it solely against Macomb 

County and Wickersham on behalf of David (count IV) and Vladimir (Count VIII). 

There is no such claim against CCS.

Even if there was such a claim, Plaintiffs have not shown that CCS was

deliberately indifferent in any fashion, much less that there has been an 

unconstitutional policy, practice or procedure that proximately caused the injury. To 

state a claim of deliberate indifference against CCS, a Plaintiff must specifically

plead a claim of a policy, practice, or custom by Correct Care Solutions that is 

allegedly unconstitutional, i.e., “to satisfy the Monell [v. City of New York 

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8

Department of Social Services, 436 U.S. 658 (1978)] requirements, a 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.’” Garner v. Memphis 

Police Dep't, 8 F.3d 358, 364 (6th Cir. 1993) (quoting Coogan v. City of Wixom, 820 

F.2d 170, 176 (6th Cir. 1987)), cert. denied, U.S., 114 S. Ct. 1219, 127 L.Ed.2d 565 

(1994) (Emphasis added). See also, Searcy v. City of Dayton, 38 F.3d 282, 287 (6th 

Cir. 1994).

Ketron v. Chattanooga-Hamilton County Hosp. Authority, 919 F. Supp. 280, 

284-285 (E.D. Tenn. 1996) explains that it is not sufficient to plead a violation 

“pursuant to policy, custom and usage” without specific facts supporting the claimed 

violation:

To successfully state a claim under 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 law.” Adams v. Metiva, 31 F.3d 375, 

386 (6th Cir.1994) (citation omitted). A governmental 

entity may be held liable under section 1983 if the 

governmental entity itself caused the constitutional 

deprivation.

However, the doctrine of respondeat superior does not 

apply to governmental entities. See Monell, 436 U.S. at 

691-95, 98 S.Ct. at 2036-38; Searcy, 38 F.3d at 286 

(noting that city not liable for injury inflicted solely by 

employees or agents); Copeland v. Machulis, 57 F.3d 476, 

481 (6th Cir.1995). “It is only when the 'execution of the 

government's policy or custom ... inflicts the injury' that 

the municipality may be held liable under §1983.”

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9

Plaintiffs have not plead a specific violation “pursuant to policy, custom and 

usage” against CCS. Plaintiffs’ Complaint cites no specific CCS policy or procedure 

which allegedly violated Plaintiffs’ civil rights. There is no count invoking Monell

against CCS. Further, generic statements do not identify specific policies or 

procedures of CCS that demonstrate a pattern of deliberate indifference.

Mullins v. Stratton, 878 F. Supp. 1016, 1019-1020 (E.D. Ken. 1995) explains 

that the Plaintiff must show “a close causal connection between the policy and the 

injuries suffered” and plead facts that support the allegation. There is nothing in 

Plaintiffs’ Complaint that sets forth the substance of a claim concerning a specific 

CCS policy. Even if Count IV was meant to include CCS, claims such as a duty to 

“adequately and properly promulgate guidelines and polices that comply with the 

requirements of 42 U.S.C. § 1983” [Dkt. No. 1, Pg ID 30, ¶ 104.b]

4

are not the 

specific identification of policies required under Monell.

Liability cannot be derived from a single act or individual, and “[p]roof of the 

existence of the policy prior to the incident that is the subject of the complaint is 

necessary.” Hullett v. Smiedendorf, 52 F. Supp. 2d 817, 828 (D. Mich. 1999). 

Plaintiff has not presented evidence to show the required pattern of conduct. 

Plaintiff merely raises vague allegations without reference to any specific, 

 

4 Also claims such as the failure to “adequately and properly train and supervise” to 

“avoid hiring or selecting individuals who it know and or should now are incapable 

of performing their responsibilities” [Dkt. No. 1, Pg ID 30, ¶ 104.d. and 3]

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10

identifiable CCS policy or procedure. Plaintiffs raise vague alleged policies without 

demonstrating a close causal connection to the decedent’s injuries. He raises denial

as to the decedent only, and fails to present evidence of systemic denials to inmates 

with a clear link to a CCS policy. Therefore, even if Plaintiffs were to respond to 

this Motion by citing a specific CCS policy, that in and of itself would be 

insufficient—as proof of a pattern of conduct including evidence of systemic denials 

to inmates linked to that policy would be required to hold CCS liable to the decedent. 

Plaintiffs cannot demonstrate such a pattern of conduct. Therefore, dismissal of 

Plaintiffs’ deliberate indifference claims as to CCS is appropriate.

III. PLAINTIFFS FAILED TO STATE A CLAIM OF GROSS 

NEGLIGENCE

Plaintiffs’ Count III and VII raises a claim for gross negligence under state 

law. Plaintiffs allege that Defendants exhibited conduct so reckless as to demonstrate 

a substantial lack of concern for Plaintiffs. The allegations in paragraphs 94-98 of 

the Complaint [Dkt. No. 9, Pg ID 109-110 and 171-172] are actually standard of 

care issues masquerading as gross negligence.

Plaintiffs do not appear to recognize that gross negligence is different than 

deliberate indifference and is not a viable claim under Michigan law against these 

Defendants. The Court in Jones v. Muskegon County, 625 F.3d 935, 947 (6th Cir. 

Mich. 2010) explains that the standard for deliberate indifference and the standard 

for gross negligence are different, and that deliberate indifference exceeds gross 

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negligence, citing Ross v. Duggan, 402 F.3d 575, 590 n. 7 (6th Cir. 2004). MCL § 

691.1407(2)(c) defines gross negligence as “conduct so reckless as to demonstrate a 

substantial lack of concern for whether an injury results.” However, gross 

negligence is not considered a separate cause of action under MCL § 691.1407.

Rather, gross negligence is an exception to the governmental immunity statute 

in Michigan that protects governmental employees. However, as Hamer v. County 

of Kent, 2013 U.S. Dist. LEXIS 186512, *25-27 (W.D. Mich. Nov. 6, 2013) (Exhibit 

B) explains, while the medical Defendants are considered state actors, they are not 

governmental employees to whom the gross negligence exception would apply:

Plaintiff has alleged a claim of gross negligence 

expressly in order to avoid the immunity otherwise 

accorded state employees by the Michigan Governmental 

Immunity From Tort Liability Act, MICH. COMP. LAWS 

§ 691.1407. (Compl., ¶ 52). That Act grants immunity 

from certain claims to “each officer and employee of a 

governmental agency, each volunteer acting on behalf of 

a governmental agency, and each member of a board, 

council, commission, or statutorily created task force of a 

governmental agency” unless certain prerequisites are 

met, including an allegation that the individual’s conduct 

amounted to gross negligence that is the proximate cause 

of the Plaintiff’s injury. MICH. COMP. LAWS § 

691.1407(2). By reason of this statute, claims of simple 

negligence are no longer actionable against governmental 

employees and the other individuals listed in section 

691.1407(2). The effect of the statute is to raise the 

standard of care to gross negligence. See, Fundunburks v. 

Capital Area Transp. Auth., 748 N.W.2d 804 (Mich. 

2008); Poppen v. Tovey,664 N.W.2d 269, 273 (Mich. Ct. 

App. 2003).

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12

Plaintiff has failed to establish, however, that these 

Defendants even qualify for immunity under this statute, 

as they are not officers or employees of a governmental 

agency. The Michigan Governmental Immunity Act 

defines “governmental agency” as “this state or a political 

subdivision.” MICH. COMP. LAWS § 691.1401(a). 

Plaintiff alleges, and Defendants admit, that Corizon is a 

foreign corporation providing health care services to 

inmates pursuant to contract (Compl., ¶ 10) and that 

Defendants Carrel, Kaufman, Albin and Rengo are either 

employed by Correct Care Solutions or contract with that 

corporation to provide services. (Compl., ¶¶ 12-16). By 

Plaintiff’s own allegations, these Defendants are not 

employees of a governmental agency. See, Rambus v. 

Wayne Co. Gen. Hosp., 483 N.W.2d 455 (Mich. Ct. App. 

1992) (doctor employed by private corporation providing 

medical services to county hospital not entitled to 

governmental immunity). The Michigan appellate courts 

“see no reason to extend the protection of governmental 

immunity to a private entity, or its agents or employees, 

merely because it contracts with, or acts on behalf of or by 

the authority of, a governmental agency.” 483 N.W.2d at 

457-58; accord Fareed v. G4S Secure Solutions (USA),

Inc., No. 12-14300, ___ F. Supp. 2d. ___, 2013 WL 

1799867, at * 9 (E.D. Mich. Apr. 29, 2013) (employees of 

private security firm under contract at county courthouse 

not entitled to governmental immunity on state-law 

claims). . . . The Governmental Immunity statute has no 

bearing on the claims against the doctor and nurses here, 

as they are not governmental employees, volunteers acting 

on behalf of any agency, or members of a task force.4

MICH. COMP. LAWS § 691.1407(2).

Stripped of the confusion injected by the 

Complaint’s citation to a governmental immunity statute 

that has no application to private parties, count II alleges a 

claim for gross negligence against medical professionals. 

Therefore, recourse to Michigan law is necessary to 

determine the nature of Plaintiff’s underlying cause of 

action against the doctor and nurse Defendants in this case.

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13

4 Although health professionals providing 

services to jail inmates under contract clearly 

act under color of state law for purposes of 

section 1983, see West v. Atkins, 487 U.S. 42 

(1988), the question whether they are 

employees of a governmental agency for 

purposes of Michigan’s Governmental 

Immunity Act is a distinct question.

Therefore, any negligence claim against the medical Defendants is actually a 

medical practice claim. In Bryant v. Oakpointe Villa Nursing Centre, 471 Mich. 

411, 422, 684 N.W.2d 864, 871 (2004), the Michigan Supreme Court set forth the 

test for whether a claim is based on negligence or medical malpractice. The Court 

stated in determining whether the nature of a claim is ordinary negligence or medical 

malpractice one considers two factors. First, did the alleged conduct occur within 

the course of a professional relationship, and second, did the allegations raise 

questions involving medical judgment. The answer in this case as to the medical 

Defendants is “yes” to both questions. These Defendants are licensed health care 

physicians or physician assistants practicing medicine within the jail setting. These 

Defendants interacted with Plaintiffs as a direct result of their position as health care 

providers. If not for the fact that the Defendants were physicians and nurses, they 

would not have come in contact with Plaintiffs. Additionally, these Defendants are 

not employees of the State, but contracted through Defendant CCS. As a result of 

these factors, Plaintiffs must comply with the procedural requirements established 

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14

by the state legislature to regulate and govern the causes of action that sound in 

medical malpractice. Plaintiffs cannot avoid these requirements by fashioning a 

claim for “gross negligence” in an attempt to bootstrap around the specific 

requirement set forth in MCL § 600.2912b. Therefore, Plaintiffs’ claims of 

negligence are limited to medical malpractice and claims of gross negligence must 

be denied.

IV. PLAINTIFFS FAILED TO STATE A CLAIM OF INTENTIONAL 

INFLICTION OF EMOTIONAL DISTRESS COUNT IX

The intentional infliction of emotional distress is a tort under state law. The 

Michigan Court of Appeals explained in Holmes v. Allstate Ins. Co., 119 Mich. App. 

710, 714-715 (1982) that the “Court has explicitly adopted the definition found in 

the Restatement Torts, 2d, § 46, pp 71-72. . . .” That Reinstatement provides: “‘One 

who by extreme and outrageous conduct intentionally or recklessly causes severe 

emotional distress to another is subject to liability for such emotional distress, and if 

bodily harm to the other results from it, for such bodily harm. * * *’” Id. (citations 

omitted). The Court in Holmes then explained that the Reinstatement’s comments 

explain: “Liability has been found only where the conduct has been so outrageous 

in character, and so extreme in degree, as to go beyond all possible bounds of 

decency, and to be regarded as atrocious, and utterly intolerable in a civilized 

community. Generally, the case is one in which the recitation of the facts to an 

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15

average member of the community would arouse his resentment against the actor, 

and lead him to exclaim, 'Outrageous!'” Id. at 15. 

Graham v. Ford, 237 Mich. App. 670, 674-675 (1999) gives the following 

elements “to invoke the tort of intentional infliction of emotional distress”:

1. extreme and outrageous conduct;

2. intent or recklessness;

3. causation; and

4. severe emotional distress.

The Court in Graham further explains: “Liability for the intentional infliction 

of emotional distress has been found only where the conduct complained of has been 

so outrageous in character, and so extreme in degree, as to go beyond all possible 

bounds of decency, and to be regarded as atrocious and utterly intolerable in a 

civilized community.” (citation omitted). Therefore, “[l]iability does not extend to 

mere insults, indignities, threats, annoyances, petty oppressions, or other 

trivialities.” Further, it “is not enough that the Defendant has acted with an intent 

that is tortious or even criminal, or that he has intended to inflict emotional distress, 

or even that his conduct has been characterized by ‘malice,’ or a degree of 

aggravation that would entitle the Plaintiff to punitive damages for another tort.” Id. 

Ultimately, the test is whether an average person would exclaim “Outrageous!” upon 

hearing the facts of the case. Id.

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16

Plaintiffs’ facts, while unfortunate, simply relate a series of medical 

encounters. There is no statement that would suggest the actions of Defendants were 

beyond the bounds of decency, intolerable, or extreme as required for the tort. There 

is nothing to invoke an “outrageous!” response, and Plaintiff fails to establish the 

claim. 

V. PLAINTIFF HAS FAILED TO STATE A DUE PROCESS CLAIM

Plaintiff makes claims in the Complaint concerning the Fourteenth 

Amendment Counts I and V. These claims are listed alongside the 42 U.S.C § 1983 

claims, but appear to be due process claims. However, a claim “based on the Due 

Process Clause of the Fourteenth Amendment...does not transform every tort 

committed by a state actor into a constitutional violation.” Deshaney v. Winnebago 

County Dep't of Social Services, 489 U.S. 189, 202 (U.S. 1989).

Admittedly, Pretrial detainees in the Macomb County Jail are protected under 

the Fourteenth Amendment. Bell v. Wolfish, 441 U.S. 520, 535, 60 L. Ed. 2d 447, 

99 S. Ct. 1861 (1979). This means that detainees are entitled to the same Eighth 

Amendment rights as other inmates. Roberts v. City of Troy, 773 F.2d 720, 723 (6th 

Cir. 1985). Further, “all inmates at the jail are also protected by the Fourteenth 

Amendment against deprivation without due process of law of such protected liberty 

interests that may arise from state statutes, regulations, or policies. See Kentucky 

Department of Corrections v. Thompson, 490 U.S. 454, 460, 104 L. Ed. 2d 506, 109 

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17

S. Ct. 1904 (1989).” Thompson v. County of Medina, 29 F.3d 238, 242 (6th Cir. 

Ohio 1994).

In Parratt v. Taylor, 451 U.S. 527, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981), 

overruled in part on other grounds, 474 U.S. 327, 88 L. Ed. 2d 662, 106 S. Ct. 662 

(1986), the Supreme Court stated that a due process claim involving an unauthorized 

or negligent deprivation of property requires that the 42 U.S.C 1983 claim “must 

allege that the state's post-deprivation procedures are inadequate to remedy the 

deprivation.” Allen v. Leis, 154 F. Supp. 2d 1240, 1267 (S.D. Ohio 2001); also see 

Jackson v. City of Columbus, 194 F.3d 737, 750 (6th Cir. 1999). Plaintiffs make no 

such specific claim here. Further, if Plaintiffs intend an equal protection claim under 

the Fourteenth Amendment, Plaintiffs must demonstrate that they were treated 

differently than others similarly situated, i.e., the other prisoners. Cleburne v. 

Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 87 L. Ed. 2d 313, 105 S. Ct. 3249 

(1985). See also, Arms v. Magaw, 91 F. Supp. 2d 1061, 1070 (E.D. Mich. 2000), and 

Allen, supra. Again, Plaintiffs have only vague claims and do not demonstrate or 

claim that Plaintiffs were treated differently than other prisoners.

VI. PLAINTIFF HAS FAILED TO STATE A CLAIM OF DELIBERATE 

INDIFFERENCE TO NUMEROUS DEFENDANTS COUNTS I and V

Plaintiffs allege claims under 42 U.S.C § 1983 (Count I and IV) against 

numerous Defendants. However, Plaintiffs failed to place factual allegations to 

support such a claim against Defendants CCS, and/or any of the medical Defendants. 

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18

Plaintiff makes three irrelevant allegation against Defendant DELUCA in 

paragraphs 30, 31 and 32. He also makes two irrelevant allegations against 

Defendant EHRLICH in paragraphs 33 and 34. The allegations have nothing to do 

with the death of David Stojcevski and occurred some 16 days prior to his death. 

Additionally in paragraphs 36 through 53 Plaintiff mentions the following 

Defendants: DELUCA, ERHLICH, BROCK, WILLIAMS, BARBER, PARTON, 

PAVEY, BEY-SHELLEY, BERTRAM, BREEN, CUENY, and DR. SHERMAN; 

however, none of the allegations are sufficient enough to give notice of liability for 

deliberate indifference. Plaintiff does not mention any of the remaining twelve (12) 

medical Defendants MANN, PAVEY, NELSON, FRANKS, CUBANSKI, 

HEDTKE, OLAGBAIYE, PICKETT, RYCHWALSKI, DEBENE, GOOD, and 

FERRER.

In the context of medical care, a prisoner’s Eighth Amendment right to be free 

of cruel and unusual punishment is violated only when a prisoner can demonstrate 

that a “deliberate indifference” has been shown to his serious medical need. Estelle 

v. Gamble, 429 U.S. 97, 104 (1976).

Mere negligence in identifying or treating a medical need does not rise to the 

level of a valid mistreatment claim under the Eighth Amendment. Estelle v. Gamble, 

429 U.S. 97, 106 (1976). Differences in judgment between an inmate and prison 

medical personnel regarding the appropriate medical diagnosis or treatment are not 

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enough to state a deliberate indifference claim. Sanderfer v. Nichols, 62 F.3d 

151,154-155 (6th Cir. 1999); Westlake v. Lucas, 537 F.2d 857, 860 n. 5 (6th Cir. 

1976). The courts typically do not intervene in questions of medical judgment. 

Youngberg v. Romeo, 457 U.S. 307, 321 (1982). "Where a prisoner has received 

some medical attention and the dispute is over the adequacy of the treatment, federal 

courts are generally reluctant to second guess medical judgments and to 

constitutionalize claims which sound in state tort law." Westlake, 537 F.2d at 860 n. 

5.

There is no indication Plaintiffs can demonstrate deliberate indifference to any 

of Plaintiff’s serious medical needs. Plaintiff admits that he was given medical 

treatment, just not the medical treatment he wished. Plaintiff makes no specific 

factual allegations as to Defendants MANN, PAVEY, NELSON, FRANKS, 

CUBANSKI, HEDTKE, OLAGBAIYE, PICKETT, RYCHWALSKI, DEBENE, 

GOOD, and FERRER. and therefore makes no claim of deliberate indifference to 

any serious medical needs of either Plaintiff. Such a record does not demonstrate 

deliberate indifference, as Daniel v. Young, 50 Fed. Appx. 221, 222 (6th Cir. Tenn. 

2002) explains:

Daniel does not dispute the district court's detailed 

description of the pertinent medical record, which 

indicated that he had a history of knee and low back 

problems, that he had been examined on numerous 

occasions, and that he had received prescriptions, 

injections, blood tests, x-rays and other tests for his 

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condition. Under these circumstances, we conclude that 

the Defendants have provided Daniel with extensive 

medical treatment for his injuries, even though he may be 

dissatisfied with the treatment that he has received. Thus, 

he has alleged no more than a medical malpractice claim 

which does not rise to the level of a viable Eighth 

Amendment claim. See, Durham v. Nu'Man, 97 F.3d 862, 

868-69 (6th Cir. 1996); Sanderfer, 62 F.3d at 154-55.

Plaintiff’s claims against these Defendants simply fail to rise to the level of 

deliberate indifference. Vague references, or failure to provide any factual 

statements does not rise to the level of deliberate indifference. Plaintiff may not 

demand or dictate his course of treatment. Plaintiffs were provided medical care by 

these Defendants, simply not the medical care Plaintiffs desired. Such differences 

of opinion do not establish a Constitutional violation. Mere negligence in 

identifying or treating a medical need does not rise to the level of a valid 

mistreatment claim under the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 

106 (1976).

Plaintiffs have not demonstrated that these Defendants were deliberately 

indifferent to any serious medical need he may possess.

Where a prisoner has received some medical attention and 

the dispute is over the adequacy of the treatment, federal 

courts are generally reluctant to second guess medical 

judgments and to constitutionalize claims which sound in 

state tort law.

Westlake, 537 F.2d at 860 n. 5.

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Therefore, Plaintiffs’ Complaint fails to state a claim of deliberate 

indifference under 42 U.S.C. § 1983 upon which relief may be granted, and dismissal 

of this matter is appropriate.

CONCLUSION

Plaintiffs must demonstrate the actions 1) “arise out of the same transaction, 

[or] occurrence” and 2) that the claims have common “questions of law or fact.” 

Plaintiff Vladimir Stojcevski, while Personal Representative to his brother, David 

Stojcevski’s Estate, does not have individual claims in common with the Estate’s 

claims concerning David’s death. While both Vladimir and David were incarcerated 

at the Macomb County Jail, they both were housed separately and had separate 

encounters with medical personnel, jail staff, and separate outcomes. The only 

question of fact that is the same is that both were at the jail at approximately the 

same time, and this is not sufficient to state claims arising out of the same occurrence 

with common questions of law and fact in common. See, Carter v. Oakland County 

Sheriff's Dep't & Jail, 2015 U.S. Dist. LEXIS 21545, 3-4 (E.D. Mich. Feb. 23, 2015).

The Monell, gross negligence, intentional infliction of emotional distress, and 

conspiracy claims must be dismissed. Further, the Eighth Amendment claims 

against Defendants Kelly Mann, Danyelle Nelson, Mical Bey-Shelley, Heather 

Erhlich, Monica Vann Damme (Franks), Jaclyn Lubanski, Amanda Bishop, and 

Cynthia Deview, Sarah Breen, and Lawrence Sherman, MD must be dismissed as 

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well. A complaint may be dismissed for failure to state a claim if "it fails to give the 

Defendant fair notice of what the ... claim is and the grounds upon which it rests." 

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 

929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99,2 L. Ed. 2d

80 (1957)). Plaintiff has failed to give notice by stating facts sufficient to support 

these claims. There are no factual claims at all as to Defendants MANN, PAVEY, 

NELSON, FRANKS, CUBANSKI, HEDTKE, OLAGBAIYE, PICKETT, 

RYCHWALSKI, DEBENE, GOOD, and FERRER. A 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. Iqbal, 129 S. Ct. at 

1949. Plaintiffs failed to do so here. Further, in order to state a claim, a Complaint 

"requires more than labels and conclusions, and a formulaic recitation of the 

elements of a cause of action will not do." Twombly, 550 U.S. at 555 (2007); see 

also, Iqbal, 129 S. Ct. at 1949 (2009) ("Threadbare recitals of the elements of a cause 

of action, supported by mere conclusory statements, do not suffice.") Plaintiffs’

claims of gross negligence, due process, and intentional infliction of emotional 

distress, are just that, labels, conclusions, and formulistic recitations of the elements 

of the claims. These claims must be dismissed under Twomly and Iqbal.

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RELIEF REQUESTED

WHEREFORE Defendants, CORRECT CARE SOLUTIONS, INC. (“CCS”);

DELUCA, ERHLICH, BROCK, WILLIAMS, BARBER, PARTON, PAVEY, BEYSHELLEY, BERTRAM, BREEN, CUENY, DR. SHERMAN, MANN, PAVEY, 

NELSON, FRANKS, CUBANSKI, HEDTKE, OLAGBAIYE, PICKETT,

RYCHWALSKI, DEBENE, GOOD, and FERRER, and JOHN/JANE DOE 

PROVIDERS, Jointly and Severally, respectfully request that this Honorable Court 

grant partial dismissal as set forth in this Motion to Dismiss. (Italicized names mean 

they have not been served as of this date.)

Respectfully submitted,

CHAPMAN LAW GROUP

Dated: June 22, 2015 /s/Ronald W. Chapman

Ronald W. Chapman (P37603)

Attorney for Correct

Care Solutions Defendants

40950 Woodward Ave., Suite 120

Bloomfield Hills, MI. 48304

(248) 644-6326

RChapman@ChapmanLawGroup.com

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PROOF OF SERVICE

I hereby certify that on June 22, 2015, I presented the 

foregoing paper to the Clerk of the Court for filing and 

uploading to the ECF system, which will send notification 

of such filing to the attorneys of record listed herein and I 

hereby certify that I have mailed by U.S. Postal Service 

the document to the involved non participants.

/s/Ronald W. Chapman

Ronald W. Chapman (P37603)

40950 Woodward Ave., Suite 120

Bloomfield Hills, MI 48304

(248) 644-6326 

RChapman@ChapmanLawGroup.com

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