Order Adopting R&R in Part

July 7, 2020

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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.

I. Background

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

Papendick. Id.

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.


III. Discussion

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

Eighth Amendment.

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

at PageID.566.

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.

IV. Conclusion

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.


/s/Terrence G. Berg


United States District Judge