Order Adopting R&R in Part
July 7, 2020
Before the Court are Plaintiff’s objections to Magistrate Judge
Patricia T. Morris’ March 30, 2020 Report and Recommendation (ECF
No. 26) recommending that Defendants’ motions to dismiss be granted.
ECF No. 26. For the reasons that follow, the objections will be sustained
in part and the Report and Recommendation will be adopted in part.
On November 15, 2019, Plaintiff Kohchise Jackson initiated this
action by filing the Complaint, which was subsequently amended on
January 3, 2020. ECF No. 12. The allegations in the Amended
Complaint arise from Defendants’ treatment of Plaintiff’s 2016
colovesical fistula, and Plaintiff’s contention that Defendants initially
misdiagnosed his condition, and then refused, for cost-saving reasons, his
requests to have surgery to have his colostomy reversed. Id. The refusal
left Plaintiff on a colostomy bag for his entire two-year stay in the
Michigan prison system, and Plaintiff alleges that it caused him to
unnecessarily suffer pain, incontinence, ostracization, and humiliation.
Id. Plaintiff also alleges that Defendants failed to provide him with an
adequate number of appropriately-sized colostomy bags and patches
while he was in their custody. Id. Plaintiff brings claims for (1)
deprivation of his substantive due process rights under the Fourteenth
Amendment against Defendants Spencer, Kraus, and Prime Healthcare;
and (2) deprivation of his Eighth Amendment rights against deliberate
indifference to serious medical needs against Defendants Corizon and
Motions to dismiss were filed by Defendants Corizon Health and
Keith Papendick on January 14, 2020 (ECF No. 17) and David Kraus on
February 7, 2020 (ECF No. 22). On April 3, 2020, Magistrate
Judge Patricia T. Morris issued a Report and Recommendation
recommending that Defendants’ motions to dismiss be granted. ECF
No. 26. Judge Morris found that Plaintiff’s claim against Defendant
Kraus, based on an initial misdiagnosis, was inactionable, and that
Plaintiff’s claim against Corizon and Papendick failed to state a
claim because the need for a colostomy reversal did not constitute
a “serious medical need” for purposes of the objective component of
an Eighth Amendment deliberate
indifference claim. Id. at PageID.546. On April 3, 2020, Plaintiff filed
objections (ECF No. 27), to which Defendants responded (ECF No. 28).
II. Legal Standard
The standard of review for a magistrate judge’s report and
recommendation depends upon whether a party files objections. If a
party objects to portions of the report and recommendation, the court
reviews those portions de novo. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P.
72(b)(3). De novo review in these circumstances requires at least a review
of the evidence before the magistrate judge; the court may not act solely
on the basis of a magistrate judge’s report and recommendation. See Hill
v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir. 1981). After reviewing the
evidence, the court “may accept, reject, or modify, in whole or in part, the
findings or recommendations” of the magistrate judge. Fed. R. Civ. P.
a. First Objection
Plaintiff’s first objection is to the Magistrate Judge’s reliance on
Wesley v. McCarthy (Wesley II), WL 3701826 (M.D. Penn. Aug. 28, 2017),
for the proposition that denying a prisoner a colostomy reversal, solely to
avoid the cost of the surgery, does not violate the Eighth Amendment.
ECF No. 27 at PageID.550.
As a threshold matter, the Court notes that the holding in Wesley
II is not binding on this Court. Regardless, the Court finds that this
objection is well-founded and that Wesley II can be distinguished from
the case at hand. The Report and Recommendation cites the
Pennsylvania district court’s August 28, 2017 decision that denied
plaintiff’s claim for relief on res judicata grounds. 2017 WL 3701826 at
*3. In the earlier decision referenced in the Wesley II order that served
as the basis for the res judicata finding, the same court found that the
defendants were entitled to summary judgment because the plaintiff had
received adequate medical care and was denied a colostomy reversal at
least in part because of a physician’s opinion that a colostomy reversal
surgery was not advisable for that plaintiff because it presented a serious
risk of complications and may not have been successful if performed.
Wesley v. Wetzel (Wesley I), 2016 WL 3958894, at *4 (M.D. Pa. July 22,
2016). Notably, the Wesley I court also found that the plaintiff had
“fail[ed] to come forth with any credible evidence that would indicate that
Defendants intentionally withheld medical treatment, i.e. denied him
surgery for economic reasons . . . .” Id. at *5. As such, since the holding
in Wesley I was based on an absence of evidence—not a finding as a
matter of law—neither Wesley case stands for the bare proposition that
refusing to perform colostomy reversal surgery solely for economic
reasons could not support a claim of deliberate indifference under the
b. Second Objection
Plaintiff’s second objection, which is closely related to the first, is to
the Magistrate Judge’s finding that a failure to authorize a colostomy
reversal—even if motivated by financial rather than medical concerns—
cannot constitute a deliberate indifference claim under the Eighth
Amendment. ECF No. 27 at PageID.553.
There is a split of authority among courts that have considered this
issue. At least one court has found that being forced to use a colostomy
bag despite the viability of a reversal procedure is not a sufficiently
serious medical condition to meet the objective prong of the Supreme
Court’s deliberate indifference test. See Swarbrick v. Frantz, 2012 WL
833882 (D. Colo. Feb. 21, 2012) (dismissing deliberate indifference claim
based on finding that colostomy reversal surgery is “not medically
necessary” and thus not sufficiently serious to satisfy the objective prong
of the deliberate indifference test). Other courts have also dismissed such
claims, but only after discovery has demonstrated that the decision to
deny the colostomy reversal surgery was based on a medical
professional’s judgment of the medical risks and benefits associated with
the surgery—not mere economic considerations. See Ayala v. Terhune,
195 F. App’x 87, 91 (3d Cir. 2006); Wesley II, 2016 WL 3958894, at *5.
A comparable number of courts, however, including one in this
circuit, have come out the other way. In Swift v. Edelman, the court
found on similar facts that the plaintiff had stated a claim under a
12(b)(6) standard against Defendant Corizon. 2017 WL 5022322, at *1
(W.D. Mich. Nov. 3, 2017). In that case, like this one, the plaintiff alleged
that Defendant Corizon refused to authorize a colostomy reversal based
solely on cost concerns. Id. at *2. See also Ramos-Rodriguez v. Las Vegas
Metro. Police Dep’t, 2017 WL 2598891, at *3 (D. Nev. June 15, 2017)
(plaintiff states Eighth Amendment claim for failure to provide colostomy
reversal procedure); Wilson v. Arpaio, 2015 WL 3960879, at *7 (D. Ariz.
June 30, 2015) (same); Baker v. Blanchette, 186 F. Supp. 2d 100, 103 (D.
Conn. 2001) (same).
Eighth Amendment jurisprudence clearly establishes that
“deliberate indifference to serious medical needs of prisoners constitutes
the ‘unnecessary and wanton infliction of pain’” that is violative of the
Constitution. Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quoting Gregg
v. Georgia, 428 U.S. 153, 173 (1976)). Under applicable Sixth Circuit
precedent, a plaintiff must meet two requirements to succeed on a
deliberate indifference claim. Darrah v. Krisher, 865 F.3d 361, 367-68
(6th Cir. 2017). The first requirement, the objective factor, requires that
the deprivation alleged be of a sufficiently serious need. Id. The second
is the subjective requirement, under which “the plaintiff must allege facts
which, if true, would show that the official being sued subjectively
perceived facts from which to infer substantial risk to the prisoner, that
he did in fact draw the inference, and that he then disregarded that risk.”
Id. (quoting Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001)).
Here, Plaintiff alleges that the use of a colostomy bag caused him
pain, suffering, humiliation and the loss of personal dignity. Am. Cmpl.
¶ 86, ECF No. 12, PageID.201. As other courts have noted, a colostomy
“prevent[s] [an individual] from eliminating waste in a normal manner;
(2) . . . require[s] him to wear a bag that constantly emit[s] a foul odor;
and (3) . . . require[s] significant maintenance by the plaintiff and medical
personnel. Though these consequences do not inevitably entail pain, they
adequately meet the test of ‘suffering’ that Gamble recognized is
inconsistent with ‘contemporary standards of decency.” Baker, 186 F.
Supp. 2d at 103 (internal quotation omitted). Plaintiff also alleges that
the colostomy and Defendants’ failure to provide him with adequate
supplies caused “watery excrement and digestive juices [to] leak out of
the stoma and onto his body, bedding, and clothes. Because a stoma does
not contain a sphincter, Mr. Jackson had no ability to control the timing
of his bowel movements in order to avoid defecating on himself.” Am.
Cmpl. ¶ 60. The Court finds that Plaintiff’s allegations are sufficient to
satisfy the objective element of the Eighth Amendment inquiry at the
motion to dismiss stage.
With regard to the subjective element, Plaintiff contends that
Defendants were subjectively aware of Plaintiff’s pain and suffering
because they knew he had undergone a Hartmann procedure, that he was
using a colostomy bag, and that he had not had a colostomy reversal. Am.
Cmpl. ¶ 81, ECF No. 12, PageID.200. Moreover, with the exception of
Defendant Kraus, Plaintiff alleges that the other Defendants denied him
a colostomy reversal not based on the medical opinion of a medical
professional on the appropriate course of treatment, but because of a
policy or practice of delaying or denying all non-emergent or life
threatening treatments in order to save money. Am. Cmpl. ¶¶ 71, 80-83.
As such, the factual allegations in the Amended Complaint—which must
be taken to be true at this stage—plausibly allege that Defendants
refused to provide treatment of a serious medical need for nonmedical
reasons in violation of the Eighth Amendment. See Darrah, 865 F.3d at
372 (“[w]hen prison officials are aware of a prisoner’s obvious and serious
need for medical treatment and delay medical treatment of that condition
for non-medical reasons, their conduct in causing the delay creates [a]
constitutional infirmity”) (quoting Blackmore v. Kalamazoo Cty., 390
F.3d 890, 899 (6th Cir. 2004)).
c. Third Objection
Plaintiff’s third objection is that the Magistrate Judge erred in her
finding that Plaintiff failed to state a claim against Corizon and
Papendick under a Monell theory. ECF No. 27 at PageID.561.
A government contractor, such as Corizon, can be held liable for the
constitutional violations of their employees under a Monell theory.
Johnson v. Karnes, 398 F.3d 868, 877 (6th Cir. 2005). However, like a
municipality, a government contractor cannot be held liable on a
respondeat superior theory, “but may be held liable for a policy or custom
of that private contractor, rather than a policy or custom of the
municipality.” Id. at 877. A plaintiff must also plausibly allege that the
policy is the “’moving force’ behind the violation of the plaintiff’s
constitutional rights.” Maxwell v. Corr. Med. Servs., Inc., 538 F. App’x
682, 691 (6th Cir. 2013) (quoting Heyerman v. Cty. of Calhoun, 680 F.3d
642, 648 (6th Cir. 2012)).
Here, Plaintiff alleges that Corizon—acting through the final
decision-making authority of Papendick—has an unconstitutional policy
of not approving surgeries with “serious medical need” by way of an
impermissibly restrictive internal definition of “medical necessity” in
order to save money. Am. Cmpl. ¶¶ 37-48. Plaintiff alleges that Corizon
has applied the same unconstitutional definition to other inmates
needing colostomy reversals, such as the plaintiff in Swift, who has
repeatedly been denied the same surgery. Id. at ¶ 79. Taking the
allegations in the Amended Complaint as true, Plaintiff has adequately
and plausibly alleged that Corizon’s policy—as expressed by its sole
decisionmaker’s restrictive definition of “medical necessity”—was the
moving force behind Corizon’s unconstitutional denial of Plaintiff’s
request for a colostomy reversal (as well as those of other inmates like
Mr. Swift). Accordingly, Plaintiff has plausibly alleged a claim under a
Monell theory of liability that is sufficient to proceed past the 12(b)(6)
stage and into discovery.
d. Fourth Objection
Plaintiff contends that the Magistrate Judge erred in declining to
hold that Kingsley v. Hendrickson, 576 U.S. 389 (2015) alters the
constitutional standard for Fourteenth Amendment due process claims
by pretrial detainees outside of the excessive-force context. ECF No. 27
A circuit split has developed on whether Kingsley should properly
be interpreted as doing away with the subjective inquiry of the Eighth
Amendment deliberate indifference standard for Fourteenth Amendment
due process cases, which traditionally have been evaluated under the
Eighth Amendment standard. The Sixth Circuit has not yet taken a
position on the issue. Richmond v. Huq, 885 F.3d 928, 937 n.3 (6th Cir.
2018). Nevertheless, as the Magistrate Judge noted, every federal court
in Michigan to consider the issue has continued to apply both the
subjective and objective requirements of the Eighth Amendment to due
process cases involving pretrial detainees. ECF No. 26 at PageID.543.
This Court declines to extend Kingsley beyond the excessive force
context. First, the text of the decision does not contain language clearly
indicating that lower courts should apply the decision beyond the
excessive force context. See also Elhady v. Bradley, No. 17-CV-12969,
2020 WL 619587, at *13 (E.D. Mich. Feb. 10, 2020) (Goldstein, J.) (noting
same). Second, the Sixth Circuit itself has continued to apply the
subjective inquiry of the Eighth Amendment deliberate indifference test
to due process claims post-Kingsley despite noting the ambiguity in Huq
more than a year before. See Cooper v. Montgomery Cty., Ohio Sheriff’s
Dep’t, 768 F. App’x 385, 392 (6th Cir. 2019) (applying subjective inquiry
in due process case where “[t]he only issue in dispute is whether
Defendants were deliberately indifferent”). Third, an extension of
Kingsley into Fourteenth Amendment due process claims where
inadequate medical care is alleged would likely push federal courts deep
into a thicket of medical malpractice claims and afoul of Estelle’s
admonition that “[m]edical malpractice does not become a constitutional
violation merely because the victim is a prisoner.” Estelle v. Gamble, 429
U.S. 97, 106 (1976). Indeed, the Sixth Circuit noted in Huq that “no
circuit [has] appl[ied] Kingsley specifically to a deliberate indifference to
a detainee’s serious medical needs claim.” Huq, 885 F.3d at 937 n.3.
Under these circumstances, this Court does not feel free to discard
decades worth of post-Estelle case law absent clear guidance from the
Sixth Circuit or the Supreme Court that it should do so.
Consequently, Plaintiff’s fourth objection is overruled, and the
claims against Dr. Kraus are dismissed for the reasons set forth in the
Report and Recommendation. ECF No. 26 at PageID.543-44.
For the reasons set forth above, the Report and Recommendation
(ECF No. 26) is ADOPTED IN PART. Plaintiff’s first, second, and third
objections are SUSTAINED. Plaintiff’s fourth objection is
OVERRULED. Defendant Kraus’ Motion to Dismiss (ECF No. 22) is
GRANTED. Plaintiff’s claims against Dr. Kraus are DISMISSED
WITHOUT PREJUDICE. The Motion to Dismiss filed by Defendants
Corizon and Papendick (ECF No. 17) is DENIED.
It is further ordered that the Motion to Strike (ECF No. 30) is
DENIED and the motions to dismiss filed in response to the original
complaint (ECF Nos. 8, 10) are DENIED AS MOOT.
DATED: June 17th, 2020.
BY THE COURT:
/s/Terrence G. Berg
TERRENCE G. BERG
United States District Judge