Sears v. County of Saginaw
Filing
49
ORDER Granting 37 Motion for Summary Judgment. Signed by District Judge Thomas L. Ludington. (Sian, M)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
TELLIS SEARS,
Plaintiff,
Case No. 15-cv-14056
v
Honorable Thomas L. Ludington
COUNTY OF SAGINAW,
Defendant.
__________________________________________/
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
Plaintiff Tellis Sears initiated this action against Defendant County of Saginaw by filing
his complaint on November 19, 2015. Compl., ECF No. 1. Plaintiff Sears alleges that Defendant
showed deliberate indifference to his serious medical needs in violation of the Eighth
Amendment by failing to treat an open wound on his right scrotum, perineum, and thigh region
while he was incarcerated at the Saginaw County Jail. Id. Sears argues that this injury was the
result of Defendant County of Saginaw’s unlawful policy pursuant to 42 U.S.C. § 1983 and
Monell v. Department of Social Services of New York, 436 U.S. 658 (1978). Id.
On August 15, 2016, Defendant County of Saginaw moved for summary judgment on
Plaintiff’s claim. See Mot. Summ. J., ECF No. 37. For the reasons stated below, Defendant’s
motion will be granted.
I.
Plaintiff Tellis Sears is a resident of Saginaw, Michigan. See Compl. ¶ 1. Defendant
County of Saginaw is a governmental entity within the State of Michigan that exercises
supervising and governmental authority over the Saginaw County Jail (the “Jail”). Id. at ¶ 2. The
Jail contracts with Corizon Healthcare Systems for the provision of jail medical services. See
Geda Dep 3-4, ECF No. 45 Ex. 1. Under the contract, at least two nurses are available at the Jail
at all times. Id. at 4-6. However, the facility medical provider and physician, Dr. Dennis M.
Lloyd, D.O., is generally only present at the Jail on Fridays. Id. at 5-6. Registered Nurse Jeremy
Geda testified that the Jail nurses are required to call Dr. Lloyd for any medical administration,
including over the counter medicines. Id. at 10. Dr. Lloyd is always available by telephone on the
days that he is not present at the Jail. Id. at 11.
A.
On October 14, 2014 Plaintiff Tellis Sears was taken into the custody of the Saginaw
County Jail after being charged with violating his probation, where he remained to await
sentencing. See Compl. ¶ 5; Sears Dep. 13, ECF No. 37 Ex. D. At the time of his intake Sears
did not have any serious or otherwise notable medical issues. See Jail Med. Rec. 001-003, ECF
No. 37 Ex. B; Sears Dep. 13. Sears was placed in a cell that slept up to 12 inmates that included
a toilet, sink, and shower. See Sears Dep. 41.
On October 19, 2014 Plaintiff informed jail medical staff that he had been experiencing
constipation for a week. See Jail Med. Rec. 008. As a result, he was examined by Registered
Nurse Jason Rickett. Id. Nurse Ricket then called Dr. Lloyd, who prescribed Plaintiff one bottle
of magnesium citrate. See Lloyd Aff. Ex. A, ECF No. 37 Ex. C.
B.
Plaintiff Sears did not report any further medical issues to the Jail staff until midNovember. In his deposition, Sears testified that, after noticing a cyst on his upper right groin on
November 16 or 17, 2014, he sent around 10 notes, or “kites”, to jail staff over the course of
three days before receiving any medical attention. See Sears Dep. 15.
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This testimony is
somewhat at odds with Sears’s medical records, which reflect that Sears was examined on
November 16, 2014 at around 2:45 PM by Nurse Ricket after he complained of lower abdominal
pain. See Jail Med. Rec. 012-013. Sears testified that he showed Nurse Ricket the lump on his
groin and that Nurse Ricket informed him he had a hernia. See Sears Dep. 16. There is no
corroboration of this conversation in the medical records. Instead, the records simply reflect that
Sears complained of lower abdominal pain, was prescribed 200 milligrams of Ibuprofen three
times a day for seven days, and that Nurse Ricket recommended that Dr. Lloyd review Plaintiff
Sears’s file. See Jail Med. Rec. 012-013. Sears’s medical chart reflects that, pursuant to the
prescription, he received ibuprofen three times a day for the duration of his time in the Jail. Id.at
21; Lloyd Aff. Ex. A.
Sears did not see another nurse until November 18, 2014 at around 1:30 PM when the
cyst on his upper groin burst. See Jail Med. Rec. 014; Sears Dep. 16. Sears alleges that he
received medical attention only after a guard noticed that his jumpsuit was covered in blood,
after which he was taken to health services. Sears. Sears Dep. 37. The examining nurse, Nurse
Kimberly Cheslik noted that Sears complained of a draining “hernia” on his right groin related to
his ongoing abdominal pain. See Jail Med. Rec. 014; Cheslik Aff ¶¶ 3-6. Upon examining
Plaintiff Sears, Nurse Cheslik observed that Sears had an abscess that was draining red, purulent
fluid. Id. She also noted redness around the drainage site and approximately two to three
centimeters of swelling, and that Sears was experiencing a temperature of 102.1º Fahrenheit. Id.
After taking Sears’s vital signs, Nurse Cheslik contacted Dr. Lloyd, who ordered Bactrim,
Epsom salt soaks, and a wound culture. See Lloyd Aff. Ex. A. Sears was also instructed to
continue taking “motrin;” a name that he appears to have been using interchangeably with the
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“ibuprofen” previously prescribed. Id. Finally, Sears was scheduled for an appointment with Dr.
Lloyd for Friday, November 21, 2014. See Jail Med. Rec. 015.
In the meantime, Sears was placed in a single cell to prevent the spread of any infection.
See Sears. Dep. 20. Plaintiff Sears testified that, because his new cell did not have a shower and
only had a sink, he had trouble using the Epsom salt soaks. See Sears Dep. 21-22. Nurse Jeremy
Geda testified that in general patients were instructed to apply Epsom salt soaks using a warm,
wet washcloth. See Geda Dep. 24-25. Sears attempted to use the salts in this way, but claimed
that it was ineffective and that the wound continued to bleed. Sears Dep. 22.
Plaintiff Sears underwent a follow-up examination by Nurse Cheslik two days later, on
November 20, 2014 at 2:00 PM. See Jail. Med. Rec. 016. Nurse Cheslik’s progress notes from
that examination provide as follows:
Assessment complete on [right] inguinal abscess.1 Contains moderate amount of
red, thick drainage noted. Appears to have a noted tunnel present now.2 Also
noted a second open area. Scrotum is enlarged as well as reddened, edematous
area on [right] anterior leg. Spoke to Dr. Lloyd who advised to send to ER for
treatment.
Id. Dr. Lloyd corroborates this report in his affidavit, stating that upon receiving Nurse Chelsik’s
telephone call he ordered that Plaintiff Sears be taken to the emergency room as soon as possible
because his condition was worsening. See Lloyd Aff. ¶ 10; Lloyd Aff. Ex. A. As a result, Sears
was immediately taken to the St. Mary’s of Michigan Hospital emergency room. See St. Mary’s
Med. Rec. 001, ECF No. 37 Ex. F.
1
An “abscess” is “a localized collection of puss and necrotic tissue anywhere in the body surrounded and walled off
by damaged and inflamed tissues.” OXFORD CONCISE MEDICAL DICTIONARY (9th ed. 2016). “Inguinal,” in turn, is
an adjective meaning “relating to or affecting the region of the groin.” Id.
2
According to Dr. Floyd, “tunneling” is a term used to describe a spreading infection.
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Upon arriving, Sears reported that he was experiencing fever, chills, abdominal pain, and
constipation. Id. at 002. His physical exam reflected
a large area of erythema3 and induration4 in the right groin with an area of
opening and minimal drainage, cellulitic changes to extend over the right hip and
pelvis as well as the anterior right thigh and into the right scrotum. The right
scrotum is indurated and mildly swollen and the testes is [sic] mildly tender, there
is no apparent crepitus5 or foul odor.
Id. at 003. Among other tests, Sears underwent a CT scan that revealed “cellulitis and groin
abscess.” Id. at 004. Specifically, the CT scan suggested a “[s]oft tissue infection involving the
scrotum, the perineum, and the anteromedial aspect of the right pelvis and the right proximal
thigh ….Scattered foci of gas are also identified …and is concerning for underlying Fournier’s
gangrene.6 There may also be a developing abscess in the region of the right scrotum.” Id. at
005.
On the following day, September 21, 2014, Sears underwent a surgical debridement and
irrigation of the infected area. Id. at 010. The operating surgeon, Doctor Samer Kais, M.D.,
rendered a post-operative diagnosis of Fournier’s gangrene. Id. After six days of post-operative
monitoring, Plaintiff Sears was discharged from the hospital on November 28, 2014. Because
Sears had been released from custody, he was not required to return to the jail. See Sears Dep.
23.
3
“Erythema” is defined as the “flushing of the skin due to dilatation of the blood capillaries in the dermis. It may be
physiological or a sign of inflammation or infection.” OXFORD CONCISE MEDICAL DICTIONARY (9th ed. 2016).
4
“Induration” is defined as the “abnormal hardening of a tissue or organ.” OXFORD CONCISE MEDICAL DICTIONARY
(9th ed. 2016).
5
“Crepitus” refers to a crackling sound or grating feeling. OXFORD CONCISE MEDICAL DICTIONARY (9th ed. 2016).
6
“Fournier’s gangrene” is a rare but potentially life-threatening infection of the scrotum that can rapidly spread to
involve the perineum, penis, and anterior abdominal wall.” OXFORD CONCISE MEDICAL DICTIONARY (9th ed. 2016).
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While Plaintiff did not experience any major post-surgical complications, at the time of
his deposition he claimed to experience some pain and numbness in his leg and difficulty
urinating. Id. at 26. He also testified that he has difficulty being physically active, performing
certain jobs, and playing with his children. Id. at 26-28.
II.
Plaintiff now moves for summary judgment on Plaintiff’s § 1983 claim. A motion for
summary judgment should be granted if the “movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The moving party has the initial burden of identifying where to look in the record for
evidence “which it believes demonstrate the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the opposing party
who must set out specific facts showing “a genuine issue for trial.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986) (citation omitted).
The Court must view the evidence and draw all reasonable inferences in favor of the nonmovant and 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.”
Id. at 251-52. The party opposing summary judgment “must do more than simply show that there
is some metaphysical doubt as to the material facts…. Where 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 for
trial.” Scott v. Harris, 550 U.S. 372, 380 (2007). Defendant argues that Plaintiff has not
demonstrated that Defendant – a municipality – is liable for Plaintiff’s injuries. Defendant also
argues that Plaintiff has not established causation.
A.
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By its terms, the Eighth Amendment prohibits the imposition of any cruel and unusual
punishment. At the time of its adoption, “cruel and unusual punishment” included draconian
punishments such as the rack, thumbscrews, “tortures[,] and other barbarous methods of
punishment.” Gregg v. Georgia, 428 U.S. 153, 170 (1976) (internal quotation marks and citation
omitted). Since then, Eighth Amendment jurisprudence has not remained static, but instead has
been subject to “the evolving standards of decency that mark the progress of a maturing society.”
Trop v. Dulles, 356 U.S. 86, 100 (1958). Under this evolving standard, the Supreme Court has
recognized the requirement that prison officials “provide medical care for those whom it is
punishing by incarceration,” and a prohibition against deliberate indifference to a prisoner’s
serious medical needs.
Estelle v. Gamble, 429 U.S. 97, 103-04 (1976). This includes a
prohibition against deliberate indifference to a prisoner’s serious medical needs, meaning the
“unnecessary and wanton infliction of pain.” Id. at 104 (internal quotations and citation are
omitted). This standard has been applied to pre-trial detainees such as Sears under the Due
Process Clause of the Fourteenth Amendment. See Jones v. Muskegon County, 625 F.3d 935, 941
(6th Cir. 2010).
To demonstrate a claim of deliberate indifference, a plaintiff must meet an objective
component and a subjective component. Farmer v. Brennan, 511 U.S. 825, 837 (1994). First, he
must show that he has an objectively “sufficiently serious” medical need. Blackmore v.
Kalamazoo Cnty., 390 F.3d 890, 895 (6th Cir. 2004) (quoting Farmer, 511 U.S. at 834). Second,
he must show that the prison official had a subjectively “sufficiently culpable state of mind.” Id.
(quoting Farmer, 511 U.S. at 834). Here, Defendant does not dispute that Plaintiff experienced a
“sufficiently serious” medical need.
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The second requirement requires a Plaintiff to show more than “mere negligence.”
Watkins v. City of Battle Creek, 273 F.3d 682, 686 (6th Cir. 2001). Instead, a plaintiff must show
the “equivalent of recklessly disregarding [a substantial risk of serious harm to a prisoner].”
Dominguez v. Corr. Med. Servs., 555 F.3d 543, 550 (6th Cir. 2009). Where “a prisoner has
received some medical attention and the dispute is over the adequacy of the treatment, federal
courts are generally reluctant to second guess medical judgments and to constitutionalize claims
that sound is state tort law.” Graham ex rel. Estate of Graham v. County of Washtenaw, 358 F.3d
377, 385 (6th Cir. 2004). It is only “[w]hen prison officials are aware of a prisoner’s obvious and
serious need for medical treatment and delay medical treatment of that condition for non-medical
reasons, their conduct in causing the delay” violates the Eighth Amendment. Blackmore v.
Kalamazoo Cnty., 390 F.3d 890, 899 (6th Cir. 2004).
B.
Plaintiff has not brought a claim against any named prison official. Instead, the sole
defendant is the County of Saginaw. In Monell v. Department of Social Services of New York, the
Supreme Court held that municipalities are “persons” subject to suit under 42 U.S.C.A. § 1983.
Monell, 436 U.S. at 700-01.
Such a claim may only be brought when “execution of a
government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts
may fairly be said to represent official policy, inflicts the injury that the government as an entity
is responsible under § 1983.” Id. at 694. The Sixth Circuit has instructed that, to satisfy the
requirements of Monell, a plaintiff “must identify the policy, connect the policy to the city itself
and show that the particular injury was incurred because of the execution of that policy.” Garner
v. Memphis Police Dept., 8 F.3d 358, 364 (6th Cir. 1993) (internal citations and quotations
omitted).
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Accordingly, to succeed on a Monell claim, a plaintiff first must allege that the
municipality itself caused a constitutional tort. Monell, 436 U.S. 658 at 691. A municipality
cannot be held liable solely because it employs a tortfeasor—or, in other words, a municipality
cannot be held liable under § 1983 on a respondeat superior theory.” Id.
Second, a Plaintiff must show that the alleged conduct qualifies as a policy. Monell
municipal liability may attach where “the action that is alleged to be unconstitutional implements
or executes a policy statement, ordinance, regulation, or decision officially adopted and
promulgated by that body’s officers.” Id. at 690. Monell liability may also attach where a
plaintiff alleges “constitutional deprivations visited pursuant to governmental ‘custom’ even
though such a custom has not received formal approval through the body’s official
decisionmaking channels.”
Id. at 690-91. Municipal liability may also attach for policies
promulgated by the official vested with final policymaking authority for the municipality. See
Miller, 408 F.3d at 813 (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 482–83, 106 (1986).
This second element requires a plaintiff to show “a deliberate choice to follow a course of action
is made from among various alternatives by the official or officials responsible for establishing
final policy with respect to the subject matter in question.” Pembaur v. City of Cincinnati, 475
U.S. 469, 483 (1986).
Third, a plaintiff must show causation. In other words, a plaintiff must connect the
municipality’s policy to the particular injury alleged.
III.
A.
In support of its § 1983 claim against Defendant County of Saginaw, Plaintiff alleges that
Defendant’s policy of having a jail physician present only one day per week amounted to
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deliberate indifference to Plaintiff Sears’s serious medical needs. Defendant does not deny that
it maintains such a policy, but argues that the policy is not unconstitutionally inadequate. In
support of this argument Defendant emphasizes Shehee v. Saginaw County, 86 F.Supp 3d 704,
(E.D. Mich. 2015) in which a court in this district determined that “Lloyd’s practices of limited
contact, occasional care, and phoned-in treatment did not display the subjective disregard for [the
plaintiff’s] well being that characterizes deliberate indifference.” Id. at 714. However, the court
in Shehee also noted that “Dr. Lloyd’s practice of phoning in medical care raises significant
concerns.” Id. at 715.
Plaintiff’s argument is slightly different from the argument presented in Shehee. There,
the plaintiff conceded that Dr. Lloyd had provided him with medical care but argued that the care
was inadequate. Here, Plaintiff Sears argues that the policy of having Dr. Lloyd present only
once per week resulted in Plaintiff receiving no medical treatment at all. In support of this
argument, Plaintiff cites Michigan Compiled Law § 333.16109(2), governing circumstances in
which a licensed physician is permitted to delegate health care decisions to a nurse under his or
her supervision. That statute requires that the following conditions be met:
(a) The continuous availability of direct communication in person or by radio,
telephone, or telecommunication between the supervised individual and a
licensed health professional.
(b) The availability of a licensed health professional on a regularly scheduled
basis to review the practice of the supervised individual, to provide
consultation to the supervised individual, to review records, and to further
educate the supervised individual in the performance of the individual’s
functions.
(c) The provision by the licensed supervising health professional of
predetermined procedures and drug protocol.
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Mich. Comp. Laws Ann. § 333.16109. Contrary to Plaintiff’s assertions, the record – and the
very deposition transcript cited by Plaintiff – demonstrates that all three of these conditions were
satisfied.
As to the first prong, Nurse Geda testified that Dr. Lloyd is continuously available to the
nurses by telephone, and that he had “yet to not be able to get ahold of Dr. Lloyd” and that in his
three years at the jail “when I’ve needed to contact him, I’ve gotten a response either
immediately or within 5 to 20 minutes he’s called back.” See Geda Dep. 11. Plaintiff has not
pointed to any place in the record that contradicts this testimony. As to the second prong, it is
undisputed that Dr. Lloyd is present at the jail each Friday to review files, consult with the
nursing staff, and attend appointments with jail inmates. Finally, as to the third prong, Nurse
Geda testified that it is jail protocol to confer with Dr. Lloyd for all medical issues and to receive
verbal commitment for all medical decisions, including over-the-counter drug administration
such as Tylenol. See Geda Dep. at 7-10. The nursing staff also keeps charts for Dr. Lloyd to
review when he is present on Fridays. See id. 10. These practices constitute predetermined
procedures and drug protocols, and, again, Plaintiff has not pointed to any part of the record that
creates a material issue of fact regarding this testimony.
Because Dr. Lloyd provided proper supervision to the nursing staff pursuant to §
333.16109(2), Plaintiff’s argument that he did not receive any medical treatment is without
merit. And because Plaintiff received some medical treatment – meeting with nursing staff and
obtaining medication on November 16 and November 18, 2014 and being referred to the
emergency room on November 20, 2014 – he faces a high bar to show that the treatment was
inadequate. See Graham, 358 F.3d at 385. Plaintiff must show that Defendant “rendered grossly
inadequate care or made a decision to take an easier but less efficacious course of treatment.” Id.
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(internal quotations and citations omitted). Plaintiff has not raised any such arguments in its
response to Defendant’s motion for summary judgment (arguing only that Defendant provided
no medical care whatsoever). Plaintiff therefore has not met its burden of creating a material
factual dispute regarding whether Defendant was deliberately indifferent to Plaintiff Sears’s
serious medical need. Summary judgment in favor of Defendant is thus appropriate.
B.
In its second argument, Defendant argues that Plaintiff Sears cannot establish causation
because Plaintiff has not offered any expert testimony to refute the testimony of Defendant’s
experts. However, because Plaintiff has not demonstrated that Defendant’s custom or policy
resulted in deliberate indifference to his serious medical needs, this Court will not reach the
question of causation.
V.
Accordingly, it is ORDERED that Defendant’s motion for summary judgment, ECF No.
37, is GRANTED.
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: October 31, 2016
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on October 31, 2016.
s/Michael A. Sian
MICHAEL A. SIAN, Case Manager
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