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2:08-Cv-10179-GCS-RSW Doc # 18 Filed 02/10/09 Pg 1 of 17 Pg ID 153 2:08-cv-10179-GCS-RSW Doc # 18 Filed 02/10/09 Pg 1 of 17 Pg ID 153 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION LORRAINE HAYES, Plaintiff, Case No. 08-10179 v. District Judge George Caram Steeh Magistrate Judge R. Steven Whalen CITY OF DETROIT, KIMBERLY LANGFORD, SOLOMON BILLS, and PARTHENA GOREE, Defendants. _______________________________________/ REPORT AND RECOMMENDATION Before the Court are Defendant Kimberly Langford’s Motion for Judgment on the Pleadings [Docket #10] and Defendant City of Detroit’s Motion for Judgment on the Pleadings [Docket #11], filed pursuant to Fed. R. Civ. P. 12(c), which have been referred for a Report and Recommendation pursuant to 28 U.S.C. §636(b)(1)(B). For the reasons set forth below, I recommend the following: 1). Defendant Langford’s Motion for Judgment on the Pleadings [Docket #10] should be GRANTED. 2). Defendant City of Detroit’s Motion for Judgment on the Pleadings [Docket #11] should be GRANTED IN PART AND DENIED IN PART, granting the motion to dismiss claims regarding Plaintiff’s physical injuries, but denying as to allegations of psychiatric or emotional damages. I. Factual Background Plaintiff Lorraine Hayes, a Detroit, Michigan resident, filed suit on January 11, 2008 pursuant to 42 U.S.C. §1983, alleging violations of her due process rights under the Fourteenth Amendment by Defendant Langford, an Emergency Service Operator (“ESO”), -1- 2:08-cv-10179-GCS-RSW Doc # 18 Filed 02/10/09 Pg 2 of 17 Pg ID 154 the City of Detroit, and Detroit Police Officers Bills and Goree. The Complaint contains the following allegations: On January 12, 2005, Plaintiff, then located at 4554 Field Street, Detroit, Michigan, was shot multiple times by acquaintance Adrian King. Complaint at ¶¶19-22. Plaintiff called 9-1-1 to request emergency medical assistance at approximately 9:28 p.m., informing ESO Langford that she had been shot. Id. at ¶¶23, 25. Defendant Langford assured Plaintiff that “emergency response was on its way” to the Field Street address. Id. at ¶25. However, during the course of the conversation, Langford “repeatedly insulted” Plaintiff and “failed to summon emergency” personnel. Id. at ¶28. Plaintiff made a second 911 call at approximately 9:53 p.m., again speaking to Defendant Langford. Id. at ¶32. Defendant Langford again failed to send emergency assistance and subjected Plaintiff to “offensive, intentional, extreme, and outrageous conduct.” Id. at ¶34. Plaintiff, apparently contending that Defendant Langford failed to impart the seriousness of her condition to police dispatch, concedes that the ESO nonetheless prepared a computer aided dispatch sheet, including Plaintiff’s location, which was forwarded to police dispatch. Id. at ¶¶36-37. The responding Detroit Police officers, Defendants Goree and Bills, drove to the 4554 Field Street address, but did not attempt to approach the house or inform dispatch that they experienced difficulty locating Plaintiff before leaving the location. Id. at ¶¶44-45. Plaintiff alleges that after her second 9-1-1 call to Langford, “[u]pon information and belief,” Defendant officers ignored a dispatch call directing them to return to the Field Street address. Id. ¶¶48-50. Following a third 9-1-1 call placed by Plaintiff’s son, EMS finally arrived, transporting Plaintiff to Detroit Receiving Hospital. Id. at ¶49, Docket #13 at 1. As a result of Plaintiff’s injuries, she experienced “complete paralysis at or around the T-4 level,” mental anguish, and extreme emotional injuries. Id. at -2- 2:08-cv-10179-GCS-RSW Doc # 18 Filed 02/10/09 Pg 3 of 17 Pg ID 155 ¶51, Docket #13 at 2. Plaintiff alleges violations of 42 U.S.C. §§1983, 1988 by all Defendants and gross negligence and/or intentional malfeasance by Defendant Goree and Bills only. II. STANDARD OF REVIEW A motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) is analyzed under the standards for dismissal stated in Rule 12(b)(6).1 Scheid v. Fanny Farmer Candy Shops, Inc. 859 F.2d 434, 436 (C.A.6 (6th Cir. 1988). Fed.R.Civ.P. 12(b)(6) provides for dismissal of a complaint “for failure of the pleading to state a claim upon which relief can be granted.” Rule 12(b) also provides that if, on consideration of a motion under paragraph (6), “matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56 (summary judgment).” In assessing a Rule 12(b)(6) motion, the court accepts the plaintiff’s factual allegations as true, and asks whether, as a matter of law, the plaintiff is entitled to legal relief. Rippy v. Hattaway, 270 F.3d 416, 419 (6th Cir. 2001). In Bell Atlantic Corp. V. Twombley, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), the Supreme Court set forth what a plaintiff must plead in order to survive a Rule 12(b)(6) motion. The Court held that although a complaint need not contain detailed factual allegations, its “[f]actual allegations must be enough to raise a right to relief above the speculative level. .on the assumption that all the allegations in the complaint are true.” Id., 1Defendants properly brought motions for judgment on the pleadings under Fed. R. Civ. P. 12(c) rather than a motion to dismiss under Rule 12(b)(6). “[A] motion under Rule 12(b)(6) could not properly lie” because Rule 12(b) requires that “[a] motion making any of these defenses shall be made before pleading.” Scheid v. Fanny Farmer Candy Shops, Inc. 859 F.2d 434, 436 (6th Cir. 1988); Fed.R.Civ.P. 12(b). Defendants City of Detroit and Kimberly Langford filed answers to the Complaint on March 3, 2008. Docket #8, 9. -3- 2:08-cv-10179-GCS-RSW Doc # 18 Filed 02/10/09 Pg 4 of 17 Pg ID 156 127 S.Ct. at 1964-65 (internal citations and quotation marks omitted). Further, “a plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. (Internal citations and quotation marks omitted). See also Association of Cleveland Fire Fighters v. City of Cleveland, Ohio 502 F.3d 545, 548 (6th Cir. 2007). Stated differently, a complaint must “state a claim to relief that is plausible on its face.” Twombly, at 1974 (emphasis added). Summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c). To prevail on a motion for summary judgment, the non-moving party must show sufficient evidence to create a genuine issue of material fact. Klepper v. First American Bank, 916 F.2d 337, 341-42 (6th Cir. 1990). Drawing all reasonable inferences in favor of the non-moving party, the Court must determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Entry of summary judgment is appropriate “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celetox Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When the “record taken as a whole could not lead a rational trier of fact to find for the nonmoving party,” there is no genuine issue of material fact, and summary judgment is appropriate. Simmons-Harris v. Zelman, 234 F.3d 945, 951 (6th Cir. 2000). -4- 2:08-cv-10179-GCS-RSW Doc # 18 Filed 02/10/09 Pg 5 of 17 Pg ID 157 III. ANALYSIS A. Defendant Langford 1. Res Judicata Defendant Langford argues first that the present action is barred by claim preclusion, noting that Plaintiff’s previously filed state claim pertaining to the same events was dismissed on July 26, 2007. Docket #10, Exhibit C. (Wayne County Circuit Court, Case No. 06-610484). Application of the doctrine of res judicata in Michigan requires that (1) the first action be decided on its merits, (2) the matter being litigated in the second case was or could have been resolved in the first case, and (3) both actions involved the same parties or their privies. ABB Paint Finishing, Inc. v. National Union Fire Ins., 223 Mich.App. 559, 562, 567 N.W.2d 456 (1997). “The test for determining whether two claims are identical for res judicata purposes is whether the same facts or evidence are essential to the maintenance of the two claims,” Huggett v. Dep't of Natural Resources, 232 Mich.App. 188, 197, 590 N.W.2d 747 (1998), not whether the grounds asserted for relief are the same. Jones v. State Farm Ins. Co., 202 Mich.App. 393, 401, 509 N.W.2d 829 (1993), mod'f on other grounds, Patterson v. Kleiman, 447 Mich. 429, 433 n. 3, 526 N.W.2d 879 (1994). At the time Defendant Langford filed the present motion, Plaintiff's claims clearly fell within the Michigan test for res judicata.
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