Anderson v. Berrien, County of et al

OCR transcription for search; preserved printed pages are authoritative

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
ELAINE ANDERSON,
Case No. 1:24-cv-1244
Hon. Robert J. Jonker U.S. District Judge
COUNTY OF BERRIEN, et al.,
Defendants.
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REPORT AND RECOMMENDATION
I. Introduction
This Report and Recommendation (R. & R.) addresses:
. a motion to dismiss filed by the "Berrien County Defendants" (see below for a list of those Defendants), ECF No. 44; Plaintiff's response, ECF No. 55; and the Berrien County Defendants' reply, ECF No. 58; and
· a motion to dismiss filed by the "individual Wellpath Defendants" (see below for a list of those Defendants), ECF Nos. 46 and 48; Plaintiff's response, ECF No. 56; and the individual Wellpath Defendants' reply, ECF No. 59.
Plaintiff Eliane Anderson is the mother of the late David Cortez Junior Wright and the personal representative of his estate. On Nov. 20, 2021, Mr. Wright died while in custody at Berrien County Jail (BCJ). Mr. Wright was 42 years old and suffered from advanced Parkinson's disease. Anderson, as the representative of Wright's estate, brings the present action. In general terms, Anderson alleges that
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AUTHENTICATED U.S. GOVERNMENT INFORMATION GPO
Plaintiff,
V.

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Defendants provided inadequate medical care in violation of Wright’s Eighth and
Fourteenth Amendment rights while he was in custody at BCJ.
On September 11, 2025, this Court granted the parties’ stipulation to dismiss
Rex Cabaltica from this lawsuit.
Beginning with the basics, 18 Defendants remain in the case. 	They are:
A. The Berrien County Defendants (11 total):
• 	Berrien County, Michigan;
• 	Sheriff Bailey,
• 	Captain (Capt.) Herbert,
• 	Sergeant (Sgt.) Will,
• 	Deputy Cipriano,
• 	Deputy Boelcke,
• 	Deputy Zabel,
• 	Deputy Warman,
• 	Deputy Jewell,
• 	Deputy Kehoe, and
• 	Deputy Scienski.
B. The Individual Wellpath Defendants (4 total):
• 	Mark Morrisey,
• 	Karen Thomas,
• 	Kelly Anderson, and
• 	Rianca Washington.
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C. Other Defendants (3 total):
• 	Wellpath, LLC,
• 	Unknown Parties #1, and
• 	Unknown Parties #2.
Plaintiff’s Amended Complaint1 , ECF No. 42, lists the following claims:
Count 	Claim 	Defendants
I 	42 U.S.C. § 1983: 	Violation of Plaintiff-
Decedent’s Eighth and Fourteenth
Amendment Rights by Official Policy
and Failure to Train/Supervise. 	ECF
No. 42, PageID.447-450.
Berrien County, Sheriff
Bailey and Captain
Herbert
II 	42 U.S.C. § 1983: 	Violation of Plaintiff-
Decedent’s Eighth and Fourteenth
Amendment Rights by Official Policy
and Failure to Train/Supervise. 	Id.,
PageID.450-454.
Wellpath, Morrisey, and
Thomas
III 	42 U.S.C. § 1983: 	Supervisory Liability
for Violation of Plaintiff-Decedent’s
Eighth and Fourteenth Amendment
Rights. 	Id., PageID.454-457.
Morrisey, Thomas, and
Sheriff Bailey
IV 	42 U.S.C. § 1983: 	Deliberate
Indifference in Violation of Plaintiff-
Decedent’s Eighth and Fourteenth
Amendment Rights. 	Id., PageID.457-
461.
All Defendants
V 	Negligence Causing Wrongful Death.
Id., PageID.461-463
Wellpath and Individual
Defendants
1 	Plaintiff’s original complaint was filed on No. 20, 2024. 	ECF No. 1. 	In
response, Defendants filed some five motions to dismiss. 	ECF Nos. 21, 24, 28, 32,
35. 	The parties subsequently filed a stipulation allowing Plaintiff to file an
Amended Complaint. 	ECF No. 38. 	The Court approved this stipulation, thus
allowing Plaintiff to file an Amended Complaint on or before July 14, 2025. 	ECF No.
40. 	Plaintiff filed an Amended Complaint on that deadline. 	ECF No. 42. 	Plaintiff,
however, explains that due to miscommunications, the Amended Complaint that was
filed was exactly the same as the original complaint. 	ECF No. 55, PageID.644.
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In ECF No. 44, the Berrien County Defendants seek dismissal of Counts I, III,
IV, V pursuant to Fed. R. Civ. P. 12(b)(6). 	In ECF Nos. 46 and 48, the individual
Wellpath Defendants seek dismissal of Claims II, III, IV, and V pursuant to Fed. R.
Civ. P. 12(b)(6).2
The individual Deputies named in claims IV and V are not included in either
of the present motions before the Court. 	Thus, the claims against them will go
forward.
For the reasons stated below, the undersigned respectfully recommends that
the Court grant in part and deny in part Defendants’ motions to dismiss.
Specifically, the undersigned respectfully recommends that the Court dismiss
the following:
• 	Count III in its entirety;
• 	Count IV against Sheriff Bailey and Captain Herbert only; and
• 	Plaintiff’s official capacity claims against Sheriff Bailey and Captain
Herbert.
2 	It should be noted that the individual Wellpath Defendants filed their motions
to dismiss on July 28, 2025. 	At that time, counsel filed identical briefs with both
motions. 	ECF No. 47 & 49. 	Plaintiff responded to these motions on August 25,
2025. 	Then, on September 4, 2025, Defendants filed an amended motion to dismiss
and corrected brief. 	ECF No. 57. 	Defendants filed the amended brief a month and
a half after they filed their initial motions and a week after Plaintiff filed a response.
This was done without leave of court. 	Therefore, the undersigned does not consider
the additional arguments presented in ECF No. 57.
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Additionally, the undersigned respectfully recommends that the Court order
Plaintiff to amend her Amended Complaint to clarify her Eighth and Fourteenth
Amendment claims in Count IV.
II. 	Factual Allegations
Plaintiff’s Amended Complaint, ECF No. 42, paints a sad picture of the events
leading up to David Wright’s death on Nov. 20, 2021. 	In Plaintiff’s Amended
Complaint, she asserts that in July 2021, Wright was a 42-year-old man with mental
disabilities and advanced Parkinson’s disease. 	Id., PageID.429. 	Berrien Township
Police arrested and transported Wright to BCJ on July 18, 2021. 	Id., PageID.430.
Anderson says that BCJ performed an initial health screening during Wright’s
intake. 	Id. 	Anderson asserts that, during the screening, Wright disclosed a history
of Parkinson’s disease, incontinence, ongoing pain, and a previous traumatic brain
injury. 	Id. (¶ 43). 	During the screening, Jail staff also documented several other
abnormalities relating to Wright’s appearance, ability to move, thought processes,
speech, mood, activity, and behavior. 	Id., PageID.430-431 (¶ 44).
As a result, “Wellpath medical staff” implemented a number of precautionary
measures. 	Id., PageID.431-432 (¶ 47). 	Anderson further alleges that “Wellpath
medical staff” and “BCJ Officers” documented Wright’s “severe and progressively
declining condition, as well as his repeated need for assistance” over the following
months. 	Id., PageID.432 (¶ 48).
Wright remained in BCJ until his death on November 20, 2021. Anderson
contends that over those four months, Wright requested assistance on numerous
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occasions for complications related to Parkinson’s disease. 	Id., PageID.432-33.
Anderson further alleges that BCJ neglected to provide Wright sufficient medical
care on several occasions. 	Specifically, Anderson alleges the following five incidents
of neglect:
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a. On August 15, 2021, Defendant THOMAS requested assistance from BCJ Officers to enter Mr. Wright's cell and administer his medications. Defendant WILL, however, instructed Defendant THOMAS that they were not to enter the dorm and directed her to mark the medications as refused in the medical records, despite Mr. Wright informing Defendant WILL that he was unable to get up to retrieve his medications from the cell door slot.
b. On August 19, 2021, WELLPATH medical staff member Ms. Wagner noted that Mr. Wright was in bed yelling for help up and thereafter marked that Mr. Wright had refused his medications.
c. On August 29, 2021, Defendant THOMAS requested assistance from BCJ Officers to enter Mr. Wright's cell to help feed him and help him get up out of bed but was told by BCJ Officers they were unable to come. Approximately an hour later, Defendant THOMAS again requested BCJ
Officers' assistance to enter Mr. Wright's cell to administer his prescribed medications and assist him up, only to be told once more that no assistance could be provided. It was not until later that morning that BCJ Officers finally responded, allowing Defendant THOMAS to assist Mr. Wright with getting up and taking his medications.
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Id., PageID.434-35.
Additionally, Anderson asserts that on multiple occasions Defendants did not
unlock Wright’s cell when he did not physically present himself at the door for
medication rounds and that Defendants refused to help Wright to his feet when he
couldn’t stand. 	Id., PageID.435. 	Anderson contends that Wright exhibited the
following symptoms in the last twenty-four hours before his death: 	“short, slow, and
shuffling steps; a stooped and/or hunched posture; difficulty with balance and
coordination; instability and wobbling; and, uncontrollable tremors in his hands
and/or arms.” 	Id., PageID.436 (¶ 55).
Anderson 	alleges 	the 	following 	regarding 	Wright’s 	condition 	during 	the
morning of Nov. 19, 2021:
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Id. (¶ 56).
On November 19, 2021, Wright was transported to court in a wheelchair and
pled guilty to felony charges. 	Id. 	Anderson asserts that after returning to his cell,
Wright laid down sideways on his bed. 	Id. 	Anderson alleges that, over the
following several hours, Wright made only slight, lethargic movements accompanied
by severe tremors. 	Id.
Anderson asserts that video surveillance shows BCJ and Wellpath employees
contacted Wright over twenty times between when he laid down at approximately
4:39PM on November 19, 2021, until his death on the morning of November 20, 2021.
Id., 	PageID.437. 	Anderson 	includes 	the 	following 	image 	taken 	from 	video
surveillance showing Wright’s positioning at approximately 6:04PM on November 19,
2021:
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Id., PageID.468
Furthermore, Anderson alleges that Wright pleaded with Defendants for help
throughout the night. 	Id. 	Specifically, Anderson says that Wright told Nurse
Anderson, “I can’t get up” and “I can’t get my arm from under me” at approximately
9:09PM. 	Id., PageID.438. 	Then, Anderson says that Wright told the same
Defendant at 10:49PM, “I need help, I need help.” 	Id. 	Anderson further alleges
that Nurse Anderson documented that Wright refused prescription medications at
12:33AM, but the surveillance footage does not show Nurse Anderson at Wright’s cell
during that time. 	Id.
Next, Anderson asserts that video footage shows that Defendant Warman
walked past Wright’s cell at 12:39AM, at which time Wright was exhibiting severe
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tremors. 	Id., PageID.440. 	Anderson says video surveillance shows Wright made
his last movement between 1:00AM and 1:24AM on November 20, 2021. 	Id.
Anderson alleges that, over the following few hours, Defendants Zabel, Warman,
Anderson, Kehoe, Jewell, and Washington all passed Wright’s cell. 	Id., PageID.440-
42.
Anderson further alleges that, at approximately 7:25AM, Defendant Scienski
entered Wright’s cell to deliver breakfast and left Wright’s already deceased body to
complete the rest of his duties. 	Id., PageID.442-43. 	Anderson provides the
following video surveillance image of Defendant Scienski observing Wright in his cell:
Id., PageID.469.
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Finally, Anderson asserts that Defendants Washington and Will entered
Wright’s cell at 8:57AM to administer medications. 	Id., PageID.443. 	At that time,
the two Defendants found Wright unresponsive and called Emergency Medical
Services. 	Id. 	Anderson asserts that neither Defendant attempted to administer
CPR, and Wright was pronounced dead. 	Id.
Anderson 	says 	that 	the 	county 	medical 	examiner’s 	autopsy 	determined
Wright’s cause of death was sequelae of remote traumatic brain injury, with
Parkinson’s as a contributing cause of death. 	Id., PageID.444. 	Anderson further
states that the manner of death was ruled indeterminable. 	Id.
III. 	Motion to Dismiss Standard
The Federal Rules provide that a claim may be dismissed for “failure to state
a claim upon which relief can be granted.” 	Fed. R. Civ. P. 12(b)(6). 	To survive a
Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted
as true, to state a claim for relief that is plausible on its face.” 	Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (internal quotation marks omitted). 	Put differently, if plaintiffs
do “not nudge[] their claims across the line from conceivable to plausible, their
complaint must be dismissed.” 	Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“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, 556 U.S. at 678.
In determining whether a claim has facial plausibility, a court must construe
the 	complaint 	in 	the 	light 	most 	favorable 	to 	the 	plaintiff, 	accept 	the 	factual
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allegations as true, and draw all reasonable inferences in favor of the plaintiff.
Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008). Those
factual allegations “must contain either direct or inferential allegations respecting all
the material elements to sustain recovery under some viable legal theory.” 	League
of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007) (internal
citations omitted). “When a court is presented with a Rule 12(b)(6) motion, it may
consider the Complaint and any exhibits attached thereto, public records, items
appearing in the record of the case and exhibits attached to defendant’s motion so
long as they are referred to in the Complaint and are central to the claims contained
therein.” 	Id.
IV. 	Analysis
A. Motion to Dismiss by Berrien County Defendants (ECF No.
44.)
The Berrien County Defendants argue that Counts III, IV, and V should be
dismissed because Plaintiff’s Amended Complaint fails to identify what claim(s) apply
to which defendant(s). 	ECF No. 45, PageID.547. 	Plaintiff responds that the
complaint should be read as a whole and there are specific allegations in other
sections of the Amended Complaint regarding each of the eight Berrien County
defendants 	other 	than 	Sheriff 	Bailey 	and 	Captain 	Herbert. 	ECF 	No. 	55,
PageID.648.
1. 	Count III
Count III pertains to two individual Wellpath Defendants – Morrisey and
Thomas – and to Sheriff Bailey, who is one of the Berrien County Defendants.
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Morrisey and Thomas have filed a separate motion to dismiss analyzed below.
Regarding Sheriff Bailey, Count III asserts supervisory liability in violation of
Plaintiff-Decedent’s Eighth and Fourteenth Amendment rights. 	In Count III,
Plaintiff 	combines 	Sheriff 	Bailey 	with 	Morrisey 	and 	Thomas 	as 	“Supervisory
Defendants.” 	ECF No. 42, PageID.455. 	Plaintiff alleges in Count III that:
As a result of failure to supervise, the Supervisory Defendants were
deliberately indifferent to Mr. Wright’s serious medical needs and his
rights under the Eight and Fourteenth Amendments of the United
States Constitution in one or more of the follow particulars:
a. Failing to ensure constitutionally adequate monitoring of
inmates and/or detainees, particularly those with serious medical
needs;
b. Failing to ensure the coordination of care between medical
providers and BCJ Officers;
c. 	Relying 	on 	inadequately 	trained 	BCJ 	Officers 	to 	conduct
medical monitoring of inmates and detainees;
d. Failing to administer prescribed medications to inmates and/or
detainees with chronic diseases;
e. Failing to ensure timely and adequate medical assessments
and 	treatment 	for 	inmates 	with 	known 	medical 	conditions,
including Parkinson’s disease;
f. Implementing or condoning practices that allowed for the denial
and/or delay of necessary medication or medical care, especially
when an inmate is unable to physically access the medication due
to their medical condition;
g. Failing to provide adequate training to staff, including officers
and medical personnel, regarding the specific needs of inmates
with chronic medical conditions;
h. Failing to properly document and respond to inmate medical
complaints.
i. Failing to investigate or take corrective action when complaints
about medical care are raised; and,
j. Adopting a practice of ignoring and/or dismissing clear signs of
medical distress, including unresponsiveness or the inability of
an inmate to move due to medical conditions.
Id. 	The Amended Complaint does not specify which Supervisory Defendant engaged
in which alleged action.
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Anderson asserts Count III under § 1983. 	Regarding § 1983 claims, the Sixth
Circuit has explained:
But to hold a supervisor liable under § 1983, “it is not enough to show
that the actor merely failed to act against misconduct of which he was
aware.” Flagg v. City of Detroit, 715 F.3d 165, 174 (6th Cir. 2013). And,
“[u]nder § 1983, there is no respondeat superior or vicarious liability.”
Id. Rather, to sustain a § 1983 charge, the plaintiff must show that the
individual against whom the charge is brought “directly participated in
the alleged misconduct, at least by encouraging, implicitly authorizing,
approving or knowingly acquiescing in the misconduct, if not carrying it
out himself.” Id. at 174.
Jackson v. Davids, 2025 U.S. App. LEXIS 24154 at *4-5 (6th Cir. Sept. 17, 2025).
Here, Anderson’s Amended Complaint states “The Supervisory Defendants
implicitly authorized, approved, or knowingly acquiesced in the actions of their
subordinates 	by 	failing 	to 	discipline, 	punish, 	or 	terminate 	them 	for 	the
constitutionally-deficient medical care provided to previous inmates at BCJ, as well
as Mr. Wright.” ECF No. 42, PageID.456-57. 	In the opinion of the undersigned,
Count III of Anderson’s Amended Complaint does not assert that Sheriff Bailey
individually 	and 	directly 	participated 	in 	the 	alleged 	misconduct 	or 	that 	he
participated 	“by 	encouraging, 	implicitly 	authorizing, 	approving 	or 	knowingly
acquiescing in the misconduct.” 	Jackson, 2025 U.S. App. LEXIS 24154 at *4-5; see
also Boxill v. O’Grady, 935 F.3d 510, 518 (6th Cir. 2019) (citing Heyne v. Metro.
Nashville Pub. Sch., 655 F.3d 556, 564 (6th Cir. 2011) (“This Court has consistently
held that damage claims against government officials arising from alleged violations
of constitutional rights must allege, with particularity, facts that demonstrate what
each defendant did to violate the asserted constitutional right.”) (quoting Lanman v.
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Hinson, 529 F.3d 673, 684 (6th Cir. 2008))). 	Here, as noted above, Count III of the
Amended Complaint lists a series of alleged supervisory failures by the named
Defendants. 	But Count III does not allege that the named Defendants implicitly
authorized, approved, or knowingly acquiesced in the actual misconduct at issue in
this case. 	See Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (“At a minimum
a plaintiff must show that the official at least implicitly authorized, approved, or
knowingly acquiesced in the unconstitutional conduct of the offending officers”)
(internal citation omitted).
Accordingly, the undersigned respectfully recommends that the Court dismiss
Count III as it pertains to Sheriff Bailey.
2. 	Count IV
In 	Count 	IV, 	Anderson 	asserts 	that 	“All 	Defendants” 	were 	deliberately
indifferent to Wright’s medical needs in violation of his Eighth and Fourteenth
Amendment Rights. 	ECF No. 42, PageID.457. 	The Berrien County Defendants
argue that “All Defendants” is too vague to differentiate the individual defendants’
alleged 	misconduct. 	ECF 	No.45, 	PageID.548. 	Anderson 	responds 	that 	the
defendants are named individually in other sections of the Amended Complaint.
ECF No. 55, PageID.648.
The Sixth Circuit has established that alleging “Defendants” collectively
violated 	a 	plaintiff’s 	constitutional 	rights 	is 	insufficient 	to 	support 	that 	each
defendant is liable for the alleged misconduct. 	Boxill, 935 F. 3d at 564 (“summary
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reference to a single, five-headed ‘Defendants’ does not support a reasonable inference
that each Defendant is liable for retaliation.”)
Here, Anderson refers to “All Defendants” collectively in the section of the
Complaint titled Count IV. 	Nevertheless, as Plaintiff describes in her response, the
Amended Complaint includes detailed and individualized allegations in paragraphs
53 and 61. 	ECF No. 42, PageID. 434-38. 	However, Plaintiff does not allege any
specific factual allegations against Sheriff Bailey and Captain Herbert in the
Amended Complaint. 	Plaintiff admits this in her response to Defendants’ motion to
dismiss. 	ECF No. 55, PageID.648. (stating, “[t]here are allegations in the complaint
as to each of the eight Berrien County defendants other than Sheriff Baile and
Captain Herbert”).
Accordingly, the undersigned respectfully recommends that the Court dismiss
Plaintiff’s claims in Count IV against Sheriff Bailey and Captain Herbert only. 	In
the opinion of the undersigned, Plaintiff’s Amended Complaint pleads sufficient
claims in Count IV against the other Berrien County Defendants, and these claims
should go forward.
3. 	Count V
In Count V, Anderson brings a Michigan state law negligence claim against
“Wellpath and Individual Defendants.” 	ECF No. 42, PageID.461. 	The Berrien
County Defendants argue that Count V is unclear as to whether the claim is against
all the Defendants. 	ECF No. 45, PageID.550. 	If the Berrien County Defendants
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are included in the claim, then the Defendants argue that they are immune from
liability under the Government Tort Liability Act. 	Id.
As 	an 	initial 	matter, 	Anderson 	states 	in 	her 	response 	that 	“Individual
Defendants” include all the Berrien County Defendants. 	ECF No. 55, PageID.650.
In the opinion of the undersigned, the pleading “Individual Defendants” include all
the defendants individually. 	Accordingly, the Berrien County Defendants are each
individually included in Count V.
“Michigan’s Government Tort Liability Act shields government employees with
immunity unless the employee’s conduct rises to the level of ‘gross negligence’ or their
conduct constitutes an ‘intentional tort.”’ Peterson v. Heymes, 931 F.3d 546, 557 (6th
Cir. 2019) (citing M.C.L. § 691.1401 et seq.; Odom v. Wayne Cty., 482 Mich. 459, 760
N.W.2d 217, 228 (Mich. 2008)).
The title applied to Count V is “negligence causing wrongful death.” 	ECF No.
42, PageID.461. 	But in the body of Count V, Anderson alleges that “Defendants
acted grossly negligent and breached their duties in the following ways” and goes
on to list twelve specific allegations of misconduct. 	ECF No. 42, PageID.461-63
(emphasis added). 	Defendants argue that Plaintiff’s pleading is insufficient to
assert gross negligence because the title of Count V states mere negligence. 	The
undersigned 	respectfully 	disagrees 	with 	the 	Defendants’ 	semantics 	argument.
Drawing all reasonable inferences from the Amended Complaint in favor of plaintiff,
the undersigned respectfully recommends that the Court deny Defendants’ motion to
dismiss Count V.
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4. 	Wright’s Custodial Status in Counts I, III, and IV
Defendants argue that Counts I, III, and IV should be dismissed because
Plaintiff does not indicate which individual allegations relate to Plaintiff’s Eighth or
Fourteenth Amendment claims. 	Plaintiff responds that the Amended Complaint
includes the more rigorous Eighth Amendment requirements and any uncertainty
may be eliminated through further amendment of the Amended Complaint. 	ECF
No. 55, PageID.651.
The 	legal 	standard 	for 	medical 	treatment 	of 	incarcerated 	individuals 	is
different depending on custodial status. 	The Eighth Amendment prohibits the
infliction of cruel and unusual punishment against those convicted of crimes and
requires prison authorities to provide medical care to incarcerated individuals, as a
failure to provide such care would be inconsistent with contemporary standards of
decency. 	Estelle v. Gamble, 429 U.S. 97, 103-04 (1976). 	The Eighth Amendment is
violated when a prison official is deliberately indifferent to the serious medical needs
of a prisoner. 	Id. at 104-05; Comstock v. McCrary, 273 F.3d 693, 702 (6th Cir. 2001).
The Eighth Amendment protections extend to pre-trial detainees through the
Fourteenth Amendment’s Due Process Clause. 	Whitley v. Albers, 475 U.S. 312, 327
(1986). 	Until recently, the Eighth Amendment’s deliberate indifference subjective
standards applied to pre-trial detainees bringing medical care claims through the
Fourteenth Amendment. 	In Richmond v. Huq et al., 885 F.3d 928 (6th Cir. 2018),
the Sixth Circuit reserved deciding whether, in the context of a failure to provide
medical 	care, 	Kingsley 	v. 	Hendrickson, 	576 	U.S. 	389 	(2015) 	eliminated 	the
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requirement of proving the subjective prong of the deliberate indifference test for pre-
trial detainees under the Fourteenth Amendment. 	In Brawner v. Scott Cnty.,
Tennessee, 14 F.4th at 585, 597 (6th Cir. 2021), the Sixth Circuit found that under
the subjective component of the deliberate indifference analysis, a pre-trial detainee
only needed to show recklessness – “more than negligence but less than subjective
intent – something akin to reckless disregard.” 	Id. (citation omitted).
Here, Wright was a pre-trial detainee from July 18, 2021, to November 19,
2021. 	However, Wright pled guilty to a felony offense on the afternoon of November
19, 2021. 	Therefore, from the time Wright pled guilty on November 19 until his
death on the morning of November 20, 2021, Wright was a convicted inmate.
Plaintiff 	sets 	forth 	both 	Eighth 	and 	Fourteenth 	Amendment 	claims 	without
differentiating which allegations align with which claim. 	In the opinion of the
undersigned, this does not constitute grounds for dismissal. 	However, the difference
in legal standards between these claims impacts how the parties approach litigation.
As such, the undersigned respectfully recommends that the Court order Plaintiff to
amend her complaint to clarify which legal standard applies to which allegations.
5. 	Official Capacity
In the Amended Complaint, Plaintiff named Berrien County Sheriff Bailey and
Jail Administrator Captain Herbert. 	Plaintiff sues both Defendants in their official
capacities. 	Defendants argue that the official capacity claims against Sheriff Bailey
and Captain Herbert should be dismissed because the governmental entity, Berrien
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County, is also a named Defendant. 	Plaintiff agrees that Defendants are correct in
this assertion. 	ECF No. 55, PageID.652.
To the extent that Plaintiff is suing the individual Defendants in their official
capacities, such claims are barred by the Eleventh Amendment. 	The Supreme Court
has held “that neither a State nor its officials acting in their official capacities are
‘persons’ under § 1983.” 	Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989).
A suit against a state official in his or her official capacity for damages
cannot be maintained pursuant to § 1983 because that official has
Eleventh Amendment immunity. This is true because “a suit against a
state official in her or her official capacity is not a suit against the official
but rather is a suit against the official’s office.” As such, a suit against a
state official in his or her official capacity is no different than a suit
against the state.
Clark v. Chillicothe Corr. Inst., No. 2:19-CV-954, 2020 WL 1227224, at *3 (S.D. Ohio
Mar. 13, 2020) (citations omitted).
The Sixth Circuit, in interpreting Will, has held “that plaintiffs seeking
damages under § 1983 [must] set forth clearly in their pleading that they are suing
the state defendants in their individual capacity for damages, not simply in their
capacity as state officials. 	Wells v. Brown, 891 F.2d 591, 592 (6th Cir. 1989). 	To the
extent that Plaintiff seeks money damages, costs and fees from Defendants in their
official capacity, that part of his lawsuit is barred by sovereign immunity.
Accordingly, the undersigned recommends that the Court dismiss Plaintiff’s
official capacity claims against Sheriff Bailey and Captain Herbert.
In summary, regarding ECF No. 44, the undersigned respectfully recommends
that the Court dismiss the following:
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1. 	Count III against Sheriff Bailey;
2. 	Count IV against Sheriff Bailey and Captain Herbert; and
3. 	Plaintiff’s 	official 	capacity 	claims 	against 	Sheriff 	Bailey 	and 	Captain
Herbert.
B. Defendants Morrisey, Thomas, Washington, and Anderson’s
Motions to Dismiss (ECF No. 46 & 48.)
1. 	Monell Claims
In Count II of the Amended Complaint, Anderson asserts that Defendants
Wellpath, Morrisey, and Thomas violated Wright’s constitutional rights as a result of
“Official Policy, Practice, Custom; Final Policymaker; Ratification; Failure to Train
and Supervise.” 	ECF No. 42, PageID.450. 	In Plaintiff’s response to the motion to
dismiss, Plaintiff explains that Count II is “a § 1983 claim against Wellpath based on
Monell.” 	ECF No. 56, PageID.661.
In Monell v. Dep’t. of Soc. Servs. Of the City of New York, 436 U.S. 658 (1978),
the United States Supreme Court held that municipalities could be subject to Section
1983 	actions 	for 	alleged 	constitutional 	violations, 	albeit 	in 	a 	narrow 	set 	of
circumstances. “A municipality may not be held liable under § 1983 on a respondeat
superior theory – in other words, ‘solely because it employs a tortfeasor.’” D’Ambrosio
v. Marino, 747 F.3d 378, 388-89 (6th Cir. 2014) (quoting Monell, 436 U.S. at 691
(emphasis in original)). Instead, a municipal policy or custom must be the moving
force behind the constitutional injury, and a plaintiff must identify the policy, connect
the policy to the governmental entity and show that the particular injury was
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incurred because of the execution of that policy. Turner v. City of Taylor, 412 F.3d
629, 639 (6th Cir. 2005); Alkire v. Irving, 330 F.3d 802, 815 (6th Cir. 2003).
Wellpath, a private healthcare contractor, can be held liable under Section
1983 because it carried out a traditional state function. 	Winkler v. Madison Cty.,
893 F.3d 877, 904 (6th Cir. 2018) (citing Johnson v. Karnes, 389 F.3d 868, 877 (6th
Cir. 2005). 	“Like a municipality, a government contractor cannot be held liable on a
respondeat superior theory, but rather for a policy or custom of that private
contractor.” 	Id. (internal quotations omitted.)
There are four recognized avenues for a plaintiff to establish a policy or custom:
“(1) the existence of an illegal official policy or legislative enactment; (2) that an
official with final decision making authority ratified illegal actions; (3) the existence
of a policy of inadequate training or supervision; or (4) the existence of a custom of
tolerance or acquiescence of federal rights violations.” 	Burgess v. Fischer, 735 F.3d
462, 478 (6th Cir. 2013) (citing Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th
Cir. 2005)). 	“Even after showing an unlawful policy or custom, a plaintiff must also
demonstrate a direct causal link between the policy and the alleged constitutional
violation in order to show that the municipality’s deliberate conduct can be deemed
the ‘moving force’ behind the violation.” 	Jones v. Louisville/Jefferson Cnty. Metro
Gov’t, 482 F. Supp. 3d 584, 597 (W.D. Ky. 2020) (quoting Spears, 589 F.3d 249 at 256
(cleaned up)).
In Watkins v. City of Battle Creek, 273 F.3d 682, 687 (6th Cir. 2001), the Sixth
Circuit held that if “no constitutional violation by the individual defendants is
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established, 	the 	municipal 	defendants 	cannot 	be 	held 	liable 	under 	§ 	1983.”
Generally, if no constitutional violation can be attributed to an individual municipal
actor, it is unlikely that the plaintiff was deprived of a constitutional right at all.
North v. Cuyahoga Cnty., 754 F. App’x 380, 390 (6th Cir. Nov. 5, 2018). 	More
recently, the Sixth Circuit has recognized that “in certain unusual circumstances, a
municipality might be liable for a constitutional violation even in the absence of a
liable individual.” 	Hart v. Hillsdale Cnty., Michigan, 973 F.3d 627, 645 (6th Cir.
2020); Winkler v. Madison Cnty., 893 F.3d 877, 900 (6th Cir. 2018). 	A Monell claim
against a municipality may proceed without a claim against an offending officer, so
long as it remains consistent with a finding of a constitutional violation. 	Stucker v.
Louisville Metro Gov’t, No. 23-5214, 2024 WL 2135407, at *6 (6th Cir. May 13, 2024).
There exists “scenarios when no officer may have acted unconstitutionally, but the
municipality has nonetheless inflicted constitutional harm of a victim” – such as a
lack of action due to the failure to train, or where there are systematic problems with
the health care system in the County jail. 	Grote v. Kenton Cnty., 85 F. 4th 397, 414
(6th Cir. 2023).
Here, Defendants present two Monell arguments – one concerning Wellpath
and another regarding Morrisey and Thomas. 	Regarding Wellpath, Defendants
argue that the Amended Complaint does not assert an official policy. 	ECF No. 49,
PageID.584. 	Plaintiff responds that paragraph 140a-h of the Amended Complaint
alleges official policies. 	That section of the Amended Complaint lists several
allegations against Wellpath but does not include an official Wellpath policy. 	ECF
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No. 42, PageID.461-62. 	However, elsewhere in the Amended Complaint, Plaintiff
does allege what Plaintiff contends are official Wellpath policies. 	Id., PageID.451.
Additionally, Defendants argue that the Amended Complaint does not allege
Morrisey or Thoms were officials with final decision-making authority sufficient to
maintain a Monell claim. 	ECF No. 49, PageID.584. 	Plaintiff asserts in her
Amended 	Complaint 	that 	Defendants 	Morrisey 	and 	Thomas 	“maintained
unconstitutional policies and procedures for managing individuals with serious
medical needs”; “had final policymaking authority for Wellpath in Berrien County”;
and “agreed to, approved, and ratified the unconstitutional conduct alleged.” 	ECF
No. 42, PageID.451-52.
Therefore, in the opinion of the undersigned, Plaintiff has sufficiently pled her
Monell 	claim 	against 	Wellpath, 	Morrisey, 	and 	Thomas. 	Accordingly, 	the
undersigned respectfully recommends that the Court deny Defendants’ motion to
dismiss as to Count II.
2. 	Supervisory Liability
Next, Defendants argue that “all supervisory claims should be dismissed”
because the Amended Complaint only asserts unsubstantiated conclusions. 	ECF
No. 49, PageID.590.
In 	Count 	III, 	Plaintiff 	asserts 	that 	Morrisey, 	Thomas 	and 	Bailey 	are
responsible for violations of Wright’s Eighth and Fourteenth Amendment rights as
supervisors. 	As explained above, Plaintiff describes Defendants Bailey, Morrisey,
and Thomas as “Supervisory Defendants.” 	ECF No. 42, PageID.455.
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The undersigned analyzed Sheriff Bailey’s supervisory liability in Count III
above. 	The same analysis applies to Morrisey and Thomas. 	Anderson’s Amended
Complaint does not assert Morrisey or Thomas individually and directly participated
in the alleged misconduct or that they participated “by encouraging, implicitly
authorizing, approving or knowingly acquiescing in the misconduct.” 	Therefore,
the Amended Complaint does not plead a sufficient claim in Count III against
Morrisey and Thomas.
Accordingly, the undersigned respectfully recommends that the Court dismiss
Count III against Morrisey and Thomas.
3. 	State Law Claims
The 	individual 	Wellpath 	Defendants 	argue 	that 	Anderson’s 	state 	law
“Negligence Causing Wrongful Death” claim should be dismissed because it is a
medical malpractice claim barred by the statute of limitations. 	ECF No. 49,
PageID.591.
For purposes of the present motions, the undersigned does not consider the
question of whether Plaintiff’s claim against individual Wellpath defendants is a
claim for medical malpractice or ordinary negligence. 	Under either circumstance,
Plaintiff’s Complaint is timely under the Mich. Comp. Laws § 600.5852, which states,
in pertinent part:
(1) If a person dies before the period of limitations has run or within 30
days after the period of limitations has run, an action that survives by
law may be commenced by the personal representative of the deceased
person at any time within 2 years after letters of authority are issued
although the period of limitations has run.
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(2) If the action that survives by law is an action alleging medical
malpractice, the 2-year period under subsection (1) runs from the date
letters of authority are issued to the first personal representative of an
estate. Except as provided in subsection (3), the issuance of subsequent
letters of authority does not enlarge the time within which the action
may be commenced.
(…)
(4) Notwithstanding 	subsections 	(1) 	to 	(3), 	an 	action 	shall 	not 	be
commenced under this section later than 3 years after the period of
limitations has run.
Mich. Comp. Laws § 600.5852.
Wright died on November 20, 2021. 	Anderson was appointed personal
representative of Wright’s estate on November 12, 2024. 	In Michigan, the statute of
limitations is two years for medical malpractice claims and for personal injury claims.
Mich. Comp. Laws § 600.5805(2) & (8). 	Therefore, Anderson had until November
12, 2026 – two years from her appointment as personal representative and three
years from when the original statute of limitation ran – to file the present lawsuit in
compliance with provisions one and four of Mich. Comp. Laws § 600.5852. 	Anderson
filed her original complaint on November 20, 2024. 	Thus, the present action is
timely.
Accordingly, the undersigned respectfully recommends that the Court deny the
individual Wellpath Defendants’ motion to dismiss Anderson’s state law claims.
V. 	Recommendation
For the reasons stated above, the undersigned respectfully recommends that
the Court grant in part and deny in part Defendants’ motions to dismiss. The
undersigned respectfully recommends that the Court dismiss the following:
4. 	Count III against Defendant Sheriff Bailey, Morrisey and Thomas;
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5. 	Count IV against Sheriff Bailey and Captain Herbert only; and
6. 	Plaintiff’s 	official 	capacity 	claims 	against 	Sheriff 	Bailey 	and 	Captain
Herbert.
Additionally, the undersigned respectfully recommends that the Court order
Plaintiff amend Count IV in her complaint to clarify which legal standard applies to
which allegations.
If 	the 	Court 	accepts 	these 	recommendations, 	the 	following 	claims 	from
Plaintiff’s Amended Complaint will remain:
Count 	Claim 	Defendants
I 	42 U.S.C. § 1983: 	Violation of
Plaintiff-Decedent’s Eighth and
Fourteenth Amendment Rights by
Official Policy and Failure to
Train/Supervise. 	ECF No. 42,
PageID.447-450.
Berrien County;
Sheriff Bailey and
Captain Herbert in their
individual capacities
II 	42 U.S.C. § 1983: 	Violation of
Plaintiff-Decedent’s Eighth and
Fourteenth Amendment Rights by
Official Policy and Failure to
Train/Supervise. 	Id., PageID.450-454.
Wellpath, Morrisey, and
Thomas
IV 	42 U.S.C. § 1983: 	Deliberate
Indifference in Violation of Plaintiff-
Decedent’s Eighth and Fourteenth
Amendment Rights. 	Id., PageID.454-
457.
Berrien County, Sgt.
Will, Dep. Cipriano, Dep.
Boelcke, Dep. Zabel, Dep.
Warman, Dep. Jewell,
Dep. Kehoe, Dep.
Scienski, Wellpath,
Morrisey, Thomas,
Anderson, and
Washington
V 	Negligence Causing Wrongful Death.
Id., PageID.461-463
Wellpath and Individual
Defendants
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Dated: 	February 3, 2026 	/s/ `ttÜàxÇ ixÜÅttà
MAARTEN VERMAAT
U.S. MAGISTRATE JUDGE
NOTICE TO PARTIES
Any objections to this Report and Recommendation must be filed and served within
fourteen days of service of this notice on you. 	28 U.S.C. § 636(b)(1)(C); Fed. R. Civ.
P. 72(b). 	All objections and responses to objections are governed by W.D. Mich.
LCivR 72.3(b). 	Failure to file timely objections may constitute a waiver of any
further right of appeal. 	United States v. Walters, 638 F.2d 947 (6th Cir. 1981); see
Thomas v. Arn, 474 U.S. 140 (1985).
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