UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MARVIN LANCE,

Plaintiff, Civil Action No. 15-CV-12408

vs. HON. BERNARD A. FRIEDMAN

OAKLAND COUNTY, et al.,

Defendants.

_________________________/

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART THE

MOTION OF DEFENDANTS OAKLAND COUNTY AND OAKLAND COUNTY

CHILDREN’S VILLAGE TO DISMISS

This matter is presently before the Court on the motion of defendants Oakland

County and Oakland County Children’s Village to dismiss the complaint for failure to state a claim

[docket entry 4]. Plaintiff has filed a response in opposition and defendants have filed a reply. 

Pursuant to E.D. Mich. LR 7.1(f)(2), the Court shall decide this motion on the briefs.

Plaintiff alleges that when he was incarcerated at Oakland County Children’s Village,

a juvenile detention facility, in July 2010, he was “punched with closed fists and viciously restrained

by guards, Defendant staff members Mullins and Owens, Jr[.], among others.” Compl. ¶ 9. Plaintiff

further alleges that afterwards he “complained of severe pain in his legs and hips to authorities

employed by Defendant Oakland County and Children’s Village and requested medical attention

and accommodations, which was denied for many days.” Id. ¶ 16. Plaintiff later needed hip surgery

that “was directly and proximately caused by the excessive force and misconduct of Defendants[]

Oakland County, Children’s Village, Mullins and Owens, Jr.” Id. ¶ 17. The complaint names

Oakland County, Oakland County Children’s Village Foundation, Mullins, Owens, and another

juvenile facility, Boysville of Michigan, to which plaintiff was later transferred.

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Plaintiff asserts three claims. In Count I, brought under 42 U.S.C. § 1983, plaintiff

alleges that all defendants “deprived [him] of his rights, privileges and immunities [under the] . . .

Fourth and Fourteenth Amendments.” Id. ¶ 25. Count II asserts a tort claim for assault and battery

against defendants Owens and Mullins. Id. ¶¶ 27, 28. In Count III, entitled “failure to provide

medical care and accommodations,” plaintiff alleges that defendants Oakland County, Children’s

Village, and Boysville “refused to provide appropriate care and accommodations for Plaintiff’s

injuries and aggravations to his hip(s) and leg(s) the breach of said duty amounting to gross

negligence and ordinary negligence . . . .” Id. ¶ 31.

Defendants Oakland County and Children’s Village seek dismissal of the complaint

pursuant to Fed. R. Civ. P. 12(b)(6). Defendants argue that no § 1983 claim is stated against them

because the complaint does not allege that the individual defendants acted pursuant to a county

policy or custom, and that no negligence claim is stated against them because the complaint alleges

no facts in avoidance of governmental immunity. In response, plaintiff suggests he should be

allowed to conduct discovery to search for a county policy or custom and that his allegations of

gross negligence suffice to address the immunity issue.

To survive the motion, plaintiff “must allege sufficient facts to ‘state a claim to relief

that is plausible on its face,’ that is, ‘that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.’” Leech v. Mayer, 588 F. App’x 402, 413 (6th Cir.

2014) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), and Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009)). In deciding the motion, the Court accepts the factual allegations in the

complaint as true. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). 

In the present case, the complaint does not allege any facts as to Count I that would

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allow the Court to make the required inferences. Plaintiff appears to acknowledge that Oakland

County and Children’s Village cannot be held liable on the constitutional claim under respondeat

superior and that it is his burden to show a county policy or custom that is the “moving force” of the

individual defendants’ alleged constitutional violations. City of Canton, Ohio v. Harris, 489 U.S.

378, 388 (1989). Plaintiff’s suggestion that he should be permitted to discover such a policy or

custom does not address defendants’ argument that the complaint entirely fails to allege the

existence of such policy or custom. The policy behind the individual defendants’ actions must be

alleged in the complaint. See, e.g., Hodges v. Corizon, 2015 WL 1511153, at **4-5 (E.D. Mich.

Mar. 30, 2015). The complaint in the present case does not do so. The Court shall therefore grant

defendants’ motion as to Count I.

Defendants’ motion must be denied as to Count III. Michigan’s governmental

immunity statute states, in relevant part, as follows:

(1) Except as otherwise provided in this act, a governmental agency

is immune from tort liability if the governmental agency is engaged

in the exercise or discharge of a governmental function. . . .

* * *

(4) This act does not grant immunity to a governmental agency or an

employee or agent of a governmental agency with respect to

providing medical care or treatment to a patient, except medical care

or treatment provided to a patient in a hospital owned or operated by

the department of community health or a hospital owned or operated

by the department of corrections and except care or treatment

provided by an uncompensated search and rescue operation medical

assistant or tactical operation medical assistant.

Mich. Comp. Laws § 691.1407. As the complaint alleges that defendants denied him medical care,

and it is not apparent that Children’s Village is owned or operated by the department of community

health or the department of corrections, it would appear plaintiff has pled “in avoidance of

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governmental immunity.” Mack v. City of Detroit, 467 Mich. 186, 204 (2002) (stating that plaintiff

“pleads in avoidance of governmental immunity by stating a claim that fits within a statutory

exception.”). Accordingly,

IT IS ORDERED that the motion of defendants Oakland County and Oakland County 

Children’s Village Foundation is granted as to Count I and denied as to Count III.

_s/ Bernard A. Friedman______

BERNARD A. FRIEDMAN

SENIOR UNITED STATES DISTRICT JUDGE

Dated: October 2, 2015

Detroit, Michigan

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