HARRIS
v.
CITY OF DETROIT
Docket No. 85867.
Michigan Court of Appeals.
Decided March 27, 1987.Sachs, Nunn, Kates, Kadushin, O'Hare, Helveston & Waldman, P.C. (by Kenneth Guinn Harlan), for plaintiff.
Donald Pailen, Corporation Counsel, and William L. Woodard and Linda D. Fegins, Assistant Corporation Counsel, for defendant.
Before: J.H. GILLIS, P.J., and MacKENZIE and R. ROBINSON,[*] JJ.
PER CURIAM.
Plaintiff appeals as of right from an order granting summary disposition in favor of defendant. We affirm.
On September 26, 1983, plaintiff filed a complaint against defendant city alleging three causes of action, all of which arose out of plaintiff's arrest and confinement on September 10, 1982, following *225 a traffic stop. A portion of Count III of the complaint is pertinent to the instant appeal. There, plaintiff alleged that while he was confined defendant violated his civil rights pursuant to 42 USC 1983 by denying him medical services needed following an assault.
Defendant filed a motion for summary disposition pursuant to MCR 2.116(C)(4), (7), and (8), alleging that plaintiff failed to state a valid claim upon which relief could be granted and that plaintiff failed to allege facts in avoidance of governmental immunity. Plaintiff subsequently filed a motion for leave to amend the complaint.
At the hearing on the parties' motions, the relevant question before the trial court was whether plaintiff's original complaint or proposed amended complaint adequately stated a 42 USC 1983 cause of action against the city based on plaintiff's contention that he was intentionally deprived of medical treatment. The trial court essentially ruled that neither complaint was sufficient and accordingly granted defendant's motion for summary disposition and denied plaintiff's motion to amend his complaint.
On appeal, plaintiff first contends that the trial court erred in dismissing his claim of deprivation of medical treatment by the city in violation of 42 USC 1983. Plaintiff concedes that the city may not be held liable under § 1983 on a respondeat superior theory. See Monell v Dep't of Social Services of City of New York, 436 U.S. 658, 691; 98 S. Ct. 1028; 56 L. Ed. 2d 611 (1978); City of Oklahoma City v Tuttle, 471 U.S. 808, 820-822; 105 S. Ct. 2427; 85 L. Ed. 2d 791 (1985). Nevertheless, plaintiff maintains that his complaint sufficiently stated a claim so that summary disposition was improperly granted. We disagree.
A motion for summary judgment for failure to *226 state a claim upon which relief can be granted challenges the legal sufficiency of a plaintiff's claim and should be considered by an examination of the pleadings alone. Demings v Ecorse, 127 Mich. App. 608, 622-623; 339 NW2d 498 (1983), mod on other grounds 423 Mich. 49 (1985); McMath v Ford Motor Co, 77 Mich. App. 721; 259 NW2d 140 (1977). This Court has recognized that the test is whether the plaintiff's claims are so clearly unenforceable as a matter of law that no factual development can possibly furnish a basis for recovery, Tobias v Phelps, 144 Mich. App. 272; 375 NW2d 365 (1985), lv den 424 Mich. 859 (1985); Findling v T P Operating Co, 139 Mich. App. 30, 34; 361 NW2d 376 (1984), lv den 422 Mich. 966 (1985); quoting Reed v St Clair Rubber Co, 118 Mich. App. 1, 5; 324 NW2d 512 (1982); McMath, supra, or whether the pleadings disclose a fatal defect which could not be overcome by an opportunity to amend, Nuyen v Slater, 372 Mich. 654; 127 NW2d 369 (1964).
A municipality may be held liable under 42 USC 1983 only if it has a policy, practice, or custom which resulted in the alleged violation of constitutional rights. Monell, supra, 436 U.S. 694. In order to demonstrate the existence of such a policy, more than proof of a single incident of misconduct is necessary, Oklahoma City, supra, and these incidents must be affirmatively linked to the adoption of the policy by the municipality. Rizzo v Goode, 423 U.S. 362, 371; 96 S. Ct. 598; 46 L. Ed. 2d 561 (1976); Napier v Jacobs, 145 Mich. App. 285; 377 NW2d 879 (1985); Wincher v Detroit, 144 Mich. App. 448, 453; 376 NW2d 125 (1985), lv den 424 Mich. 872 (1986).
In addition to asserting that the execution of a governmental policy resulted in a deprivation of constitutional rights, a § 1983 plaintiff must also specifically plead the constitutional rights which *227 have been violated. Paul v Davis, 424 U.S. 693, 699-700; 96 S. Ct. 1155; 47 L. Ed. 2d 405 (1976). Where, as here, a plaintiff asserts a claim under 42 USC 1983 for deprivation of medical treatment, facts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs must be alleged. Estelle v Gamble, 429 U.S. 97, 106; 97 S. Ct. 285; 50 L. Ed. 2d 251 (1976), reh den 429 U.S. 1066 (1977). This Court in Tobias, supra, stated:
A medical need is serious if it is one that has been diagnosed by a physician as requiring treatment or it is so obvious that even a layperson would recognize the necessity of medical attention. Rushing v Wayne Co, 138 Mich. App. 121, 146; 358 NW2d 904 (1984). To have acted with "deliberate indifference", defendants must have either intentionally denied or unreasonably delayed treatment of a discomfort-causing ailment or wilfully failed to provide prescribed treatment without medical justification. Brewer v Perrin, 132 Mich. App. 520, 530; 349 NW2d 198 (1984). In Westlake v Lucas, 537 F2d 857, 861 (CA 6, 1976), the court held sufficient to withstand a motion for dismissal plaintiff's allegations "that he was forced to endure a period of intense discomfort because his pleas for medical assistance went unheeded". [144 Mich. App. 277-278.]
In the instant case, plaintiff's original complaint failed to plead the existence of any custom or policy which may have contributed to the injuries he allegedly suffered or to the alleged denial of medical services. Thus, it was legally insufficient as a matter of law. Moreover, the original complaint was legally insufficient since it did not allege specific constitutional rights which were violated. Accordingly, the trial court did not err in granting summary disposition in favor of defendant.
*228 Plaintiff argues that the facts in Tobias, supra, found to be legally sufficient to state a claim of medical deprivation under 42 USC 1983, are sufficiently similar to the instant case to warrant reversal of the trial court's ruling. Even were we to accept this argument, reversal would not be mandated. In Tobias, the plaintiff sued individual physicians directly. In the instant case, defendant is a municipality. Unlike the plaintiff in Tobias, it was incumbent upon plaintiff in this case to allege that the city had a specific policy which caused plaintiff's injuries in order to be held in violation of § 1983, in accordance with Monell, supra. As previously noted, plaintiff's original complaint failed to make such a specific allegation. Thus, in this respect Tobias is inapposite to the instant case.
Plaintiff also argues that, in granting defendant's motion for summary disposition, the trial court went beyond the scope of review appropriate for the motion by looking beyond the pleadings and inquiring into the factual support for his claims. A review of the record makes it apparent that the inquiry by the trial court into plaintiff's factual support was directed to deciding plaintiff's motion to amend his complaint, not the motion for summary disposition. Thus reversal on this ground is unwarranted.
Plaintiff next contends that the trial court abused its discretion in denying his motion to amend his complaint. The grant or denial of a motion to amend a pleading is discretionary with the trial court. Central Advertising Co v Novi, 91 Mich. App. 303, 317; 283 NW2d 730 (1979). This Court will not reverse a trial court's decision to allow or disallow an amendment of a pleading absent an abuse of discretion. Robertson v Detroit, 131 Mich. App. 594, 599; 345 NW2d 695 (1983); *229 Commodities Export Co v Detroit, 116 Mich. App. 57, 70-71; 321 NW2d 842 (1982). MCR 2.118 provides that leave to amend shall be freely given when justice so requires. See also Ben P Fyke & Sons v Gunter Co, 390 Mich. 649; 213 NW2d 134 (1973). The Michigan Supreme Court has acknowledged the federal source of Rule 118, predecessor of 2.118, and has been guided by the federal precedents. LaBar v Cooper, 376 Mich. 401, 405; 137 NW2d 136 (1965).
In this case, plaintiff sought to clarify his contention that defendant violated 42 USC 1983 by alleging in his proposed amended complaint the following:
15. That on or about September 10, 1982, said police officers detained Plaintiff in a jail cell while Plaintiff was injured and bleeding and refused to allow Plaintiff to receive medical care or attention despite his requests for such care.
16. That the aforementioned actions of Defendant police officers were carried out in conformance with the official policy or custom of Defendant City of Detroit.
17. That the above actions and the denial of medical care constitutes deliberate indifference to Plaintiff's serious medical needs, and amounts to a denial of Plaintiff's rights guaranteed to him as a citizen of the United States by the Eighth and fourteenth [sic] Amendments of the United States Constitution.
18. That such denial of Plaintiff's constitutional guarantees is a violation of 42 USC 1983.
In order to sufficiently plead a cause of action under 42 USC 1983, plaintiff must state highly specific facts in support of his claim. Mere conclusory allegations are not sufficient. German v Killeen, 495 F Supp 822 (ED Mich, 1980). Contrary to this requirement, the allegations in plaintiff's *230 amended complaint constitute conclusory statements unsupported by facts necessary to sufficiently state a claim upon which relief can be granted. Plaintiff merely alleges that the police officers possessed a deliberate indifference to his serious medical needs in conformance with an official policy. He does not set forth any specifics regarding the alleged policy nor does he aver that this was not an isolated incident. Thus, a grant of plaintiff's motion for leave to amend his complaint would have been futile and was properly denied. See Ben P Fyke & Sons, supra.
Affirmed.
NOTES
[*] Former circuit judge, sitting on the Court of Appeals by assignment.