Estate of Zakora v. Chrisman

The Estate of SETH MICHAEL ZAKORA, and BRANDY ZAKORA, in her capacity as the Personal Representative of the Estate of Seth Michael Zakora, Plaintiffs, v. TROY CHRISMAN, et al., Defendants.

No. 1:19-cv-1016

United States District Court, W.D. Michigan, Southern Division

July 23, 2021

HON JANET T. NEFF JUDGE

REPORT AND RECOMMENDATION

SALLY J. BERENS U.S. MAGISTRATE JUDGE

Plaintiffs the Estate of Seth Michael Zakora and Brandy Zokora, the Personal Representative of the Estate of Seth Michael Zakora have sued several employees and officials with the Michigan Department of Corrections (MDOC) and with the Michigan State Police (MSP) pursuant to 42 U.S.C. § 1983. Plaintiffs' claims arise out of the drug-overdose death of Seth Zakora while in the custody of the MDOC at Lakeland Correctional Facility (LCF). Plaintiffs sue the following MDOC Defendants: LCF Inspectors Troy Chrisman and Matthew Huntley; LCF Corrections Officers Chadwick Mobley, Steve Johnson, and Jane Doe; LCF Warden (at the time of the incident) Bonita Hoffner and her Administrative Assistant Russell Rurka; MDOC Assistant Deputy Director Steve Rivard and MDOC Director Heidi Washington. Plaintiffs sue the following MSP Defendants: Troopers Brandon Oaks and James Wolodkin; Detective/Sergeant Heather Lass; and Lieutenant James Coleman.

This matter is now before me on the MSP Defendants' Motion to Dismiss or, alternatively, Motion for Summary Judgment (ECF No. 33) and the MDOC Defendants' (Corrected) Motion to Dismiss and for Summary Judgment (ECF Nos. 36 and 39). In addition, Plaintiffs have filed a Motion for Leave to File a Second Amended Complaint. (ECF No. 47.) Pursuant to 28 U.S.C § 636(b)(1)(B), I recommend that Defendants' motions be GRANTED. In addition, Plaintiff's motion to amend is DENIED.

I. Background

On January 22, 2017, Seth Michael Zakora died from a drug overdose in the C-Unit of LCF. (ECF No. 3 at PageID.33.) Defendant Johnson found Zakora lying unresponsive in his bunk in the C-5 housing unit at 7:58 a.m. (ECF No. 37-2 at PageID.220.) Responding officers observed that Zakora was obviously deceased due to rigor mortis. (Id.) The cause of death was determined to be fentanyl toxicity by accident. (EFC No. 37-3.) In the two days prior to Zakora's death, two other prisoners housed in C-Unit overdosed on drugs. (ECF No. 3 at PageID.34.) Plaintiffs allege that, at the time of Zakora's death, illegal drugs were in abundance at LCF and were being smuggled in by a female corrections officer and a prisoner who were romantically involved with each other. (Id.) Plaintiffs also allege, however, that Defendants Rurka and Lass told Zakora's mother, Brandy Zakora, that prior to the death, drugs were being smuggled into the prison inside basketballs that were thrown over the fence, but they could not catch the perpetrator. (Id. at PageID.36.) Following Zakora's death, the MSP made a full investigation and brought a drug dog into the facility that alerted to contraband in the C-Unit. (Id.)

Plaintiffs allege that a prisoner had informed Defendant Chrisman and LCF's Inspector office about the drug smuggling ring on more than one occasion prior to Zakora's death, providing information about how drugs were coming in and who was supplying them. Plaintiffs further allege that Chrisman relayed this information to another Inspector, Defendant Huntley, but neither took any action to stop the flow of drugs into the facility. Defendants Chrisman and Huntley allegedly told their supervisors, Defendants Hoffner and Rivard, about the drug smuggling, but they either ignored the information or instructed Chrisman and Huntley to ignore it or to not to investigate the accusations. Plaintiffs also allege that Rurka knew about the drug smuggling and knew that drugs were being smuggled into the facility inside basketballs. (Id. at PageID.34-35.) The prisoner who related the information to the inspectors was charged and convicted of smuggling drugs into LCF, allegedly to avoid an internal investigation into the female corrections officer who was involved in the smuggling. (Id. at 36.)

Plaintiffs also claim that MSP Defendants Oaks, Lass, Wolodkin, and Coleman “were involved with the drug smuggling ring and/or a cover up of Mr. Zakora's death.” (Id. at PageID.37.) Plaintiffs further allege that “Defendant Troopers knew and or participated in the drug smuggling and knew of the risks and harm associated with dangerous illegal drugs.” (Id. at PageID.40.) Plaintiffs state that the MSP Defendants “knew that a ‘cop/officer' was the person bringing suboxone and heroin into the facility but did not investigate the allegation in determining the source of the drugs that caused Mr. Zakora's death.” (Id. at PageID.37.) Plaintiffs allege that, in spite of this knowledge of drugs being smuggled into LCF, Defendants “did not do anything to curb the introduction, spread, and usage of dangerous drugs in prison, despite their direct knowledge from prisoners snitching to them and from two previous overdoses.” (Id. at PageID.41.) Thus, Plaintiffs contend, all Defendants “facilitated this drug ring by knowingly permitting it to happen within the facilities and/or participating in the drug ring.” (Id. at PageID.42.)

II. Motion Standards

A Rule 12(b)(6) motion to dismiss for failure to state a claim on which relief may be granted tests the legal sufficiency of a complaint by evaluating its factual assertions in a light most favorable to the plaintiff to determine whether it states a claim that is plausible on its face. See In re NM Holdings Co., LLC, 622 F.3d 613, 618 (6th Cir. 2010). Pursuant to Rule 12(b)(6), a claim must be dismissed for failure to state a claim on which relief may be granted unless the “[f]actual allegations [are] enough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations are true.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007). As the Supreme Court has instructed, to survive a motion to dismiss, a complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). This plausibility standard “is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. If the complaint simply pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Id. As the Court further observed, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678-79. In reviewing the sufficiency of a complaint, a court “need not accept as true legal conclusions or unwarranted factual inferences, ” or “legal conclusions masquerading as factual allegations.” In re Travel Agent Comm'n Antitrust Litig., 583 F.3d 896, 903 (6th Cir. 2009).

Summary judgment is appropriate if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Material facts are facts that are defined by substantive law and are necessary to apply the law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if a reasonable jury could return judgment for the non-moving party. Id.

The court must draw all inferences in a light most favorable to the non-moving party, but may grant summary judgment when “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Agristor Fin. Corp. v. Van Sickle, 967 F.2d 233, 236 (6th Cir. 1992) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

Where, as here, a defendant moves for dismissal and for summary judgment as an alternative ground and the plaintiff responds by submitting materials outside the record, the court need not give notice that it might treat the motion as one for summary judgment. See Ball v. Union Carbide Corp., 385 F.3d 713, 719 (6th Cir. 2004).

III. Discussion

Plaintiffs allege four claims. In Count I, they allege that all Defendants except Mobley and Johnson failed to protect Zakora from illegal drugs that entered LCF in violation of the Eighth Amendment. In Count II, Plaintiffs allege all Defendants violated Zakora's Fourteenth Amendment rights under the state-created-danger doctrine by failing to investigate allegations of drug smuggling. In Count III, Plaintiffs allege that MDOC Defendants Washington, Rivard, and Hoffner failed to train and/or supervise their subordinates with regard to not permitting officers to sell drugs in prison, or had a policy permitting corrections officers to smuggle drugs into prison and sell them to prisoners, in violation of the Fourteenth Amendment. Finally, in Count IV, Plaintiffs allege an Eighth Amendment deliberate indifference claim against MDOC Defendants Mobley and Johnson for failing to check on Zakora after a prisoner told them that something was wrong with Zakora.

Because Plaintiffs state in their response that they do not contest Defendants' motions to dismiss the Fourteenth Amendment claim in Count II, (ECF No. 42 at PageID.372 n.4), and they offer no argument in response to Defendants' arguments for dismissal of that claim, the Court may conclude that Plaintiffs have abandoned Count II. See Karmol v. Ocwen Loan Servicing, LLC, No. 1:16-CV1178, 2016 WL 7188742, at *2 (W.D. Mich. Dec. 11, 2016) (treating the plaintiff's failure to respond to a complaint as a waiver or abandonment of claims). Therefore, I recommend that this claim be dismissed.

A. Qualified Immunity

Both sets of Defendants raise the issue of qualified immunity. “Under the...