Rusha v. Dep't of Corr.

CourtCourt of Appeal of Michigan (US)
Citation859 N.W.2d 735,307 Mich.App. 300
Docket NumberDocket No. 317693.
Decision Date21 October 2014

307 Mich.App. 300
859 N.W.2d 735


Docket No. 317693.

Court of Appeals of Michigan.

Submitted Oct. 7, 2014, at Lansing.
Decided Oct. 21, 2014, at 9:15 a.m.

859 N.W.2d 736

Bendure & Thomas, Detroit (by Mark R. Bendure ) and McKeen & Associates, PC, Detroit (by Euel W. Kinsey ), for plaintiff.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, and James T. Farrell, Assistant Attorney General, for defendant.

Before: SAAD, P.J., and O'CONNELL and MURRAY, JJ.



307 Mich.App. 301

Defendant, Department of Corrections (DOC), appeals as of right the Court of Claims order denying its motion for summary disposition of plaintiff's allegation of cruel or unusual punishment in violation of the Michigan Constitution. On appeal, the DOC contends that plaintiff's failure to file

859 N.W.2d 737

the statutorily required notice of intent to file a claim within six months of the alleged injury bars this lawsuit where the complaint was not filed until nearly 28 months after the alleged injury first occurred. Because we hold that the statutory notice requirement of MCL 600.6431 applies to constitutional torts, we reverse the Court of Claims' decision to the contrary and remand this case for entry of an order granting the DOC's motion for summary disposition.


This case arises out of plaintiff's claim that the DOC violated the Michigan Constitution's ban on cruel or

307 Mich.App. 302

unusual punishment by failing to treat his multiple sclerosis during his incarceration. See Const. 1963, art. 1, § 16. As alleged in the complaint, plaintiff was incarcerated on October 20, 2010, having violated his probation. Five months earlier, plaintiff's doctor had diagnosed him with multiple sclerosis, and as of October 20, had prescribed certain medication for plaintiff. Prison doctors apparently disagreed. Instead, they concluded plaintiff did not satisfy the DOC's criteria for a multiple sclerosis diagnosis and refused treatment on this ground. Plaintiff's symptoms allegedly worsened. He experienced multiple hospitalizations during which independent physicians diagnosed him with acute relapsing multiple sclerosis. Despite plaintiff's persistent symptoms and weekly grievances, the DOC continued to refuse the alleged necessary medications. Plaintiff was eventually transferred to a different correctional facility and confined to a wheelchair. On August 28, 2012, plaintiff was released from prison. His condition has allegedly deteriorated since that time.


Less than a year after his release from prison, plaintiff filed a single-count complaint in the Court of Claims alleging cruel or unusual punishment. Plaintiff did not, however, file a notice of intention to file a claim against the state for personal injuries. See MCL 600.6431(3).

The complaint alleged that the DOC's “capitated basis” compensation method gave an incentive to its independent medical contractors to provide substandard care to prisoners by rendering the contractors responsible for costs exceeding a predetermined rate of compensation set by the DOC's per-prison-per-month (PPPM) formula. Plaintiff claims that this policy accounted

307 Mich.App. 303

for the prison doctors' refusal to diagnose and treat his multiple sclerosis under the DOC's criteria despite numerous diagnoses to the contrary by independent physicians, and that, consequently, the DOC's enactment and enforcement of this policy and criteria constituted cruel or unusual punishment in violation of the Michigan Constitution.

The DOC moved for summary disposition on multiple grounds. Relevant to this appeal is the DOC's contention that plaintiff's failure to comply with the six-month statutory notice period of MCL 600.6431(3) precluded this action.1 Plaintiff responded that MCL 600.6431(3)'s filing requirement was inapplicable since the gravamen of his claim was the constitutional tort and his personal injury, as a mere consequence of the alleged constitutional violation, could not trigger that subsection. Alternatively,

859 N.W.2d 738

plaintiff claimed that because the DOC denied him treatment until his release date from prison, the constitutional violation was of a “continuing nature” and his complaint was therefore timely filed.

After hearing arguments, the court ultimately agreed with plaintiff, ruling that constitutional torts are exempt from the requirements of MCL 600.6431(3). As the court explained during the motion hearing:

[M]y opinion is that constitutional torts do not have to conform with the requirements of notice under the act because the constitution—you know, I am not a big constitutional tort fan personally, but the constitution trumps
307 Mich.App. 304
statutes.... But my opinion is, he can file it willy-nilly, apparently, as long as he is suffering from the injury.

An order denying the DOC's motion was entered on July 23, 2013. This appeal followed.2


The sole issue for decision is whether plaintiff's failure to comply with the six-month statutory notice period of MCL 600.6431(3) bars his claim alleging a constitutional tort. We hold that it does. The Court of Claims ruled on this issue pursuant to MCR 2.116(C)(7). We review de novo a trial court's ruling under that subrule. Fane v. Detroit Library Comm., 465 Mich. 68, 74, 631 N.W.2d 678 (2001).

In interpreting both constitutional and statutory provisions, the primary duty of the judiciary is to ascertain the purpose and intent of the provision at issue. White v. City of Ann Arbor, 406 Mich. 554, 562, 281 N.W.2d 283 (1979). The starting point—and usually the ending point—for this inquiry is the plain language of the provision. Co. Rd. Ass'n of Mich. v. Governor, 474 Mich. 11, 15, 705 N.W.2d 680 (2005) ; UAW v. Green, 302 Mich.App. 246, 264–265, 839 N.W.2d 1 (2013) ; Rinke v. Potrzebowski, 254 Mich.App. 411, 414, 657 N.W.2d 169 (2002). “When a constitutional or statutory provision contains clear and unambiguous language it is not open to judicial construction and effect is given to the plain meaning of the words used.” Oppenhuizen v. Zeeland, 101 Mich.App. 40, 49, 300 N.W.2d 445 (1980).

As noted, plaintiff's complaint consists of one count alleging a violation of

307 Mich.App. 305

Article 1, § 16 of the Michigan Constitution on the basis that the DOC policy precluded plaintiff's treatment for multiple sclerosis and worsened his condition, and therefore its enforcement subjected him to cruel or unusual punishment that caused him damage. Our Supreme Court has held that a claim for damages premised on a constitutional provision standing alone may be actionable under circumstances such as those presented here, i.e., where the claimant alleges a violation of the Michigan Constitution by virtue of a governmental custom or policy. Smith v. Dep't of Pub. Health, 428 Mich. 540, 545, 410 N.W.2d 749 (1987), aff'd sub nom Will v. Michigan Dep't of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). This type of claim has been referred to as a “constitutional tort.” 77th Dist. Judge v. Michigan, 175 Mich.App. 681, 692–693, 438 N.W.2d 333 (1989), disavowed on other grounds by Parkwood Ltd. Dividend Housing Ass'n. v. State Housing Dev. Auth., 468 Mich. 763, 774 n. 8, 664 N.W.2d 185 (2003) ; see also Smith, 428 Mich. at 610 n. 21, 410 N.W.2d 749 (opinion by Brickley, J.), 642–643 (Boyle, J., concurring in part and dissenting in part).

859 N.W.2d 739

Assuming plaintiff has properly alleged a constitutional tort, the Court of Claims has exclusive jurisdiction. Pertinent to this case, the Court of Claims Act (the “Act”), MCL 600.6401 et seq., expressly vests that court with exclusive jurisdiction “[t]o hear and determine any claim or demand, statutory or constitutional, ... ex contractu or ex delicto, or any demand for monetary, equitable, or declaratory relief ... against the state or any of its departments ... notwithstanding another law that confers jurisdiction of the case in the circuit court.” MCL 600.6419(1)(a). Although plaintiff brought this action in the Court of Claims, he argues that he was not required to comply with the Act's applicable provisions and procedures.

307 Mich.App. 306

In particular, one procedure he asserts does not apply to this case is the Act's notice provision, which requires a claimant either to file a claim or to provide notice of his intention to file a claim against the state within one year of its accrual, MCL 600.6431(1), unless the claim is for personal injuries or property damage, in which case the deadline is six months, MCL 600.6431(3). Plaintiff's complaint outlines numerous alleged physical injuries and conditions that...

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    ...plaintiff's available remedies even when those remedies pertain to alleged constitutional violations." Rusha v. Dep't of Corrections , 307 Mich. App. 300, 307, 859 N.W.2d 735 (2014). "[I]t being the sole province of the Legislature to determine whether and on what terms the state may be sue......
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