Marden v. Midland, County of et al

Filing 73

ORDER Granting Defendants' 49 51 Motions for Summary Judgment and Denying as Moot Defendants' 44 Motion Challenging Expert and 63 Motion to Strike Newly Added Experts. Signed by District Judge Thomas L. Ludington. (Sian, M)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
SHARYL MARDEN,
Case No. 15-cv-14504
Honorable Thomas L. Ludington

Plaintiff,
v.
COUNTY OF MIDLAND, et al.,
Defendants.
/

ORDER GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT
AND DENYING AS MOOT DEFENDANTS’ MOTION CHALLENGING EXPERT AND
MOTION TO STRIKE NEWLY ADDED EXPERTS
This case arises out of the tragic death of Jack Brian Marden while in the custody of
Defendant Midland County on February 13, 2015. On December 31, 2015, Jack Marden’s wife,
Plaintiff Sharyl Marden, filed her complaint against Midland County and Captain Richard
Harnois (the “County Defendants”), and Midland County jail employees Lieutenant Jeffrey
Derocher, Deputy Brian Keidel, Deputy Richard Speich, Deputy Joshua Michael Saylor, and
Deputy Bryan Kryzanowicz (together the “Officer Defendants”). See Compl., ECF No. 1.
Plaintiff asserts that Jack Marden’s death resulted from the individual Defendants’ violations of
the Fourth, Eighth, and Fourteenth Amendments pursuant to 42 U.S.C. § 1983, and that
Defendant Midland County is liable for those actions pursuant to Monell v. Department of Social
Services of New York, 436 U.S. 658 (1978). She also asserts that the actions of the Officer
Defendants constitute state law assault and battery.
On January 3, 2017 Defendants filed a motion to challenge the revised opinion of their
own expert, Doctor Kanu Virani, M.D. See ECF No. 44. On January 19, 2017, the Midland
County Defendants and the Officer Defendants filed motions for summary judgment. See ECF

Nos. 49, 51. Finally, on February 10, 2017, Defendants moved to strike Plaintiff’s newly added
expert witnesses. See ECF No. 63. For the reasons stated below, Defendants’ motions for
summary judgment will be granted. Their motions to challenge Dr. Verani’s revised opinion
testimony and to strike newly added experts will be denied as moot.
I.
Plaintiff Sharyl Marden is a resident of Midland County, Michigan. She is the duly
appointed personal representative of the estate of her husband, Decedent Jack Brian Marden.
Jack Marden, born on January 29, 1959, had no history of violence but had been diagnosed with
depression. He was 5’11” and weighed 205 pounds.
Defendant County of Midland is a governmental entity organized and existing under the
laws of the State of Michigan. Midland County is responsible for operating the Midland County
Sheriff’s Department and the Midland County Jail. Id. At all relevant times Defendant Harnois
was employed by Midland County as Captain for the Midland County Sheriff’s Department and
Jail Administrator for the Midland County Jail. Officer Derocher was employed as a lieutenant,
and all other Officer Defendants were employed as deputies. Plaintiff alleges that the individual
Defendants were acting in their individual capacities within the course and scope of their
employment at the time of the relevant events.
A.
On January 19, 2015, officers from the Midland Police Department were called to the
Marden’s residence for a domestic dispute. At the scene, a police officer deployed a Tazer to
subdue Jack Marden, who was then transported by ambulance to MidMichigan Medical Center
for a psychiatric evaluation without incident. In the call for the ambulance, it was represented
that Marden had an injury to his arm in the form of a laceration and was the subject of

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“overdose/poisoning.” Plaintiff alleges that the incident took place after Jack Marden overdosed
on Valium.
After being observed at MidMichigan Medical Center overnight, Marden was discharged.
The discharging physician noted that Jack Marden was suffering from major depression, but that
he denied feeling helpless or suicidal. At the time, decedent was agreeable to continuing care and
counseling, and agreed to referral to out-patient services for therapy for himself and Plaintiff, his
wife. The discharging physician opined that Jack Marden did not present an imminent danger to
himself or others.
Marden returned home following his discharge, where he remained until February 4,
2015. On that date, the Midland City Police Department acted on a felony arrest warrant
charging Jack Marden with assault and aggravated assault as a result of the domestic incident
that took place on January 19, 2015. He was then taken to the Midland County jail, where he
was held in the intake area of the jail as a pretrial detainee until February 11, 2015.
B.
The events preceding Defendants’ efforts to physically control Plaintiff are largely
undisputed. After being observed with deteriorating mental health, on February 11, 2015 at
around 11:19 AM, Jack Marden was removed from his cell for an interview with Community
Mental Health supervisor, Gina Latty, and a representative of Community Mental Health,
Marissa Boulton. 1 See Latty Dep. 11-12, ECF No. 64-28. At the time of the interview Nurse
Latty did not know anything about Marden’s medical history. Id. She testified that she was
1

Plaintiff alleges that Jack Marden’s erratic behavior was the result of Valium withdrawal, and that the incident
could have been avoided if the jail had provided Marden with his normal Valium prescription. However, Plaintiff’s
§ 1983 claim and assault and battery claims focus solely on Defendants’ alleged misuse of force in responding to
Jack Marden’s behavior on February 11, 2015. See Compl. pp. 12-16. Plaintiff elected not to add the jail healthcare
providers to the action, and contested Defendants’ attempt to file a third-party complaint seeking contractual
indemnity from the medical providers. Therefore, any actions of the jail medical providers during the time between
Marden’s intake and the events that took place on February 11, 2015 are irrelevant based on the framing of
Plaintiff’s complaint. See ECF No. 33.
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unable to obtain a signed medical release or any information from Marden due to his psychotic
state, and that he accused her of trying to kill him and claimed that he was pregnant. Id. at 18-20.
Ms. Boulton therefore left to advise Lieutenant Derocher that Marden was becoming agitated,
and requested that he be returned to his cell.
A video camera located in Jack Marden’s cell captured the events that followed. When
Lieutenant Derocher, Deputy Saylor and Deputy Speich walked Jack Marden back to his cell,
Marden initially entered the cell, but then exited and sat down on the ground. After a brief
discussion, the three officers attempted to guide Marden back into the cell, at which time he
began physically resisting and fighting the officers. The officers then lifted Marden up and
placed him in the cell. During this encounter, Marden took Lieutenant Derocher’s radio from his
belt and called for help. Marden was eventually subdued and placed in the cell.
As a result of this incident, Nurse Latty organized an informal debrief with Captain
Harnois, Lieutenant Derocher, Ms. Boulton, and Deputy Speich. See Derocher Dep. 36, ECF No.
64-29. Nurse Latty then began making arrangements for Marden to be transported to the
MidMichigan Medical Center’s Mental Health Unit. See Latty Dep. 29-30. The jail employees
then formulated a plan to transport Marden in a way that would minimize the risk of incident.
Captain Harnois ultimately ordered members of the Corrections Emergency Response Team
(“CERT”) to put on protective equipment designed to protect law enforcement officers from
injuries and prevent officers from inflicting unnecessary injuries upon the individual being
subdued. See Derocher Dep. 58. Lieutenant Derocher did not put on any protective gear himself.
Back in his cell Marden continued behaving erratically. After lying on his bed mat for
about nine minutes, Marden removed his jumpsuit and urinated on it. He also wiped urine and
feces on his naked body and soaked his blanket in toilet water. For the next half hour Marden

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alternated between lying on his mat and crouching behind a waist-high barrier that separated the
bathroom portion of his cell from the bed mat.
The following events were captured not only by the cell camera, but also by a hand-held
video and audio recorder operated by Captain Harnois. At approximately 12:02 p.m. the Officer
Defendants entered Jack Marden’s cell. Marden responded by throwing the urine-soaked blanket
and jumpsuit at the officers. The Officer Defendants, including Lieutenant Derocher, restrained
Marden against the wall in the bathroom portion of the cell and forced him to the ground under
the sink. As Marden continued to struggle, the deputies attempted to restrain his extremities,
with Derocher attempting to control his head. During the struggle, Marden grabbed Derocher’s
testicles. While this event is not caught on video, Derocher can be heard yelling, “Oh you
fucking asshole! Fucking let go of my balls! God damn it! Let go of me. Let go of me!” In
response Derocher punched Marden in the head three times until Marden released his testicles
and Derocher was able to place his shin on top of Marden’s arm. Marden was repeatedly advised
to “stop resisting.” Once Marden was confined, Nurse Laura Sasse, R.N., injected him with a
shot of Haldol.
As minutes passed, Marden continued to struggle and began breathing heavily.
Perceiving that the still-struggling Marden was attempting to spit on him, Lieutenant Derocher
requested that Deputy Saylor retrieve a spit hood to place over Marden’s face. A spit hood is a
mesh polyester bag that is placed over a person’s head. See ECF No. 49-22. Marden told
Derocher to take the spit hood off of him, to which Derocher responded, “we’re trying to let you
breath, brother, but you’ve got to relax man. You gotta stop fighting us. Alright?” Marden
repeatedly informed Derocher that he was having trouble breathing, to which Derocher
repeatedly responded that Marden needed to relax.

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About a minute after the spit hood was placed on Marden’s face, Lieutenant Derocher
requested a nurse and reported that Marden was experiencing agonal breathing. He also
requested that someone quickly call 911. After again advising Marden to relax, Lieutenant
Derocher ordered the Deputies to move Marden out from under the sink. He also advised the
deputies to keep Marden in a position where there was no weight on his chest. While Marden’s
breathing temporarily improved, Derocher expressed concern to a nurse about Marden’s agonal
breathing. Derocher did not to remove the spit hood due to Marden’s active resistance. Marden
again stated that he could not breathe.
After Marden’s breathing again worsened, a nurse advised that placing Marden in a chair
would be beneficial. The officers therefore lifted a still-struggling Marden and placed him onto a
chair. As they were strapping Marden in, an officer noted that Marden’s hands were “coloring
out” and turning white. Marden again asked that the spit hood be removed and requested water.
After sitting in the chair for about a minute Marden began to lose consciousness. Nurse
Sasse advised the officers remove the spit hood in order to facilitate Marden’s breathing in
response to an inquiry from Captain Harnois. She agreed with Captain Harnois’s suggestion that
the spit hood could be contributing to a sense of claustrophobia. As the spit hood was removed –
just under ten minutes after the incident began – Marden lost consciousness. The officers
therefore removed him from the chair, placed him on the ground, and began performing CPR.
Marden was described as being in “full arrest.” Emergency responders quickly arrived and
transported Marden to the MidMichigan Medical Center by ambulance.
Upon arrival it was determined that Marden was in acute cardiac pulmonary arrest.
Marden died two days later, on February 13, 2015 at 2:30 p.m. Plaintiff alleges that the death
was proximately caused by “the needless, unnecessary, and violent assault on Jack Marden….”

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Compl. Plaintiff Sharyl Marden, as personal representative of Decedent’s estate, responded by
filing the present action against Defendants on December 31, 2015.
II.
Defendants now move for summary judgment as to each of Plaintiff’s claims. 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 opposing party may not rest on its
pleadings, nor “rely on the hope that the trier of fact will disbelieve the movant’s denial of a
disputed fact but must make an affirmative showing with proper evidence in order to defeat the
motion.” Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009) (internal quotations
omitted). The Court must view the evidence and draw all reasonable inferences in favor of the
non-movant and determine “whether the evidence presents a sufficient disagreement to require
submission to a [fact-finder] or whether it is so one-sided that one party must prevail as a matter
of law.” Anderson, 477 U.S. at 251-52. The Officer Defendants and the Midland County
Defendants have each filed a motion for summary judgment.
A.
In their motion for summary judgment, the Officer Defendants argue that qualified
immunity shields them from Plaintiff’s § 1983 claims. See Mot. Summ. J. II, ECF No. 51.
Section 1983 provides in relevant part:

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Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress.
Id. To establish a claim under § 1983 a “plaintiff must establish both that 1) []he was deprived
of a right secured by the Constitution or laws of the United States and 2) the deprivation was
caused by a person acting under color of state law.” Redding v. St. Eward, 241 F.3d 530, 532
(6th Cir. 2001).
Government officials are immune from civil liability under § 1983 “when performing
discretionary duties, provided ‘their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Whitney v. City of
Milan, 677 F.3d 292, 296 (6th Cir. 2012) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
In determining whether a government official enjoys qualified immunity for a particular act,
courts must apply a two-prong test: (1) “whether the facts, viewed in the light most favorable to
the nonmoving party, show the officer’s conduct violated a constitutional right;” and (2)
“whether the constitutional right was clearly established by asking whether a reasonable official
would understand that what he is doing violates that right.” Whitney, 677 F.3d at 296 (citing
Saucier v. Katz, 533 U.S. 194, 201–02 (2001)).
Courts have discretion to analyze these steps in any order. See Pearson v. Callahan, 555
U.S. 223, 236 (2009). Bypassing the constitutional question is particularly appropriate where “it
is plain that a constitutional right is not clearly established but far from obvious whether in fact
there is such a right.” Id. at 237. “A right is clearly established if the contours of the right are
sufficiently clear so that a reasonable officer would have understood, under the circumstances at
hand, that his behavior violated the right.” Bailey v. Kennedy, 349 F.3d 731, 741 (4th Cir. 2003)
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(internal quotation marks and alteration omitted). In other words, “existing precedent must have
placed the statutory or constitutional question ... beyond debate.” Occupy Nashville v. Haslam,
769 F.3d 434, 443 (6th Cir. 2014) (quoting Plumhoff v. Rickard, 134 S.Ct. 2012, 2023 (2014)).
Courts should not define clearly established law at a high level of generality, but must instead
look to the particular circumstances that the officer faced. See Plumhoff, 134 S.Ct at 2023.
i.
Plaintiff first argues that the force employed on Jack Marden by the Officer Defendants
constitutes excessive force under the Fourth and Fourteenth Amendments of the United States
Constitution. Defendants contend that the force they employed was not in violation of any
clearly established constitutional right. A pretrial detainee alleging excessive force bears the
burden of showing that “the force purposely or knowingly used against him was objectively
unreasonable.” Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015). Objective reasonableness
“turns on the facts and circumstances of each particular case.” Id. Relevant factors include the
officer’s knowledge at the time of the incident; the state’s legitimate interest in managing the
facility at which the individual is detained; “the relationship between the need for the use of
force and the amount of force used; the extent of the plaintiff’s injury; any effort made by the
officer to temper or to limit the amount of force; the severity of the security problem at issue; the
threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.” Id.
In addition to asserting violations of the Fourth and Fourteenth Amendments, Plaintiff
asserts in her complaint that the Officer Defendants’ conduct constituted cruel and unusual
punishment under the Eighth Amendment. However, because Marden was a pretrial detainee and
not a convicted prisoner, the Eighth Amendment is inapplicable. “Eighth Amendment scrutiny is
appropriate only after the State has complied with the constitutional guarantees traditionally

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associated with criminal prosecutions. … Where the State seeks to impose punishment without
such an adjudication, the pertinent constitutional guarantee is the Due Process Clause of the
Fourteenth Amendment.” Ingraham v. Wright, 430 U.S. 651, 671-72 n. 40, 97 (1977). See also
Kingsley, 135 S.Ct. at 2475 (“pretrial detainees (unlike convicted prisoners) cannot be punished
at all, much less ‘maliciously and sadistically.’”) (citing Ingraham,430 U.S. at n. 40, 97).
Plaintiff implicitly acknowledges this in her response brief, recognizing that Kinglsey supplies
the correct standard for determining whether excessive force was applied. See Pl. Resp. Summ J.
I p. 12., ECF No. 64. Summary judgment will therefore be entered as to Plaintiff’s Eighth
Amendment claims.
a.
Excessive force claims are analyzed temporal segment by temporal segment. See
Claybrook v. Birchwell, 274 F.3d 1098, 1104 (6th Cir. 2001). Plaintiff first asserts that
Lieutenant Derocher employed excessive force by hitting Jack Marden in the head while pinning
him down with his knees after the initial takedown. See Compl. 12-13, ¶¶ 2(a) & (f). In support
of her argument that Marden’s right’s in this regard were clearly established, Plaintiff cites the
cases of Phelps v. Cory, 286 F.3d 295 (6th Cir. 2002), Jennings v. Fuller, 659 Fed. App’x 867
(6th Cir. 2016), and Neague v. Cynkar, 258 F.3d 504 (6th Cir. 2001).
The latter case, Neague, is largely irrelevant to this case. While the case holds that the
right to be free from excessive force is a clearly established right, the issue in that case was
whether the handcuffing of a student incident to a lawful arrest could give rise to an excessive
force claim where the handcuffing did not result in any physical injury. See Neague, 258 F.3d at
508. The Sixth Circuit held that such a claim was insufficient as a matter of law. Id. The case
therefore has little bearing on the contours of the rights at issue in the present case.

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The facts of Phelps are more relevant. In that case, an officer requested that a handcuffed
recent arrestee take off his shoes and socks for booking purposes. See Phelps, 286 F.3d at 297.
While the arrestee attempted to comply his foot came close to an officer’s face, and the officer
grabbed the foot and pushed it away. Id. However, a different officer witnessed the exchange
and believed that the arrestee was attempting to kick the other officer. Id. He therefore tackled
the handcuffed arrestee, hit him in the face twice, and banged his head into the floor at least three
times. Id. Importantly, there was no evidence that the arrestee posed a threat to anybody at the
time of the incident. Id. Agreeing with the District Court that the Fourth Amendment’s
reasonableness standard applied, the Sixth Circuit found that the arrestee’s Constitutional rights
had been violated because “there was simply no governmental interest in continuing to beat [the
plaintiff] after he had been neutralized, nor could a reasonable officer have thought there was.”
Id. at 301. Determining that the use of gratuitous force against a helpless and incapacitated
suspect during an arrest was clearly established as unconstitutional, the Sixth Circuit agreed with
the district court that the case presented a triable issue of fact. Id.
This case is distinguishable from Phelps in a number of key respects. First, Marden was
not handcuffed at the time of the incident. Second, Marden was actively, violently resisting
officers who were attempting to extricate him from his cell. Although he was pinned to the
ground, he was not fully neutralized, as evidenced by the fact that he was able to grab Derocher’s
testicles.
Jennings also presents facts that are similar to the present case. There, complaints by a
former roommate led to a search for the plaintiff, who was found operating a vehicle while over
the legal limit. Jennings, 659 Fed. App’x at 869. The plaintiff was taken to the booking room at
the county jail, where he sat peacefully on a bench. Id. A large officer eventually entered the

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room and ordered the plaintiff to stand and place his hands against the wall so that he could be
patted down. Id. When the officer patted down the plaintiff’s crotch area, the plaintiff briefly
and non-aggressively lowered his arm, to which the officer responded by slamming the plaintiff
into the wall. Apparently in response to the slam, the plaintiff turned his head to the right, but
kept his hands on the wall. Id. Apparently in response to the movement, the officer and a
colleague forcibly tackled the plaintiff onto the metal bench and then onto the floor. Id. The
plaintiff cried out that he had emphysema and could not breathe, and began to struggle. Id. at
870. This, in turn, resulted in numerous other officers entering the room, holding the plaintiff
down, and pepper spraying him in the face. Id. Over the following nine minutes the plaintiff
continued to struggle against officers who kneed his neck area, covered his mouth, placed a spit
hood over his head, unsuccessfully attempted to move him to a restraint chair, and tazered him in
the lower back. Id. The officers eventually secured the plaintiff with straps, face down, on a
restraint bed, where they left him unattended for around three hours. Id. During that time the
officers did not wipe the pepper spray off of the plaintiff or remove his spit hood. Id. The
plaintiff testified that he struggled to breathe, and eventually had to chew a hole in the hood. Id.
In finding that the facts alleged by the plaintiff rose to the level of a clearly established
constitutional violation, the Sixth Circuit noted that the initial takedown was a gross
overreaction. Id. However, the Sixth Circuit expressly noted that takedowns are appropriate in
many circumstances, depending upon whether there is “some real form of resistance or danger.”
Id. And while the Sixth Circuit found the three hour restraint while wearing the blood-soaked
spit hood unreasonable, the Sixth Circuit found that the actions that took place between the
takedown and restraint were not objectively unreasonable:
[W]hatever had led up to the takedown, the officers were faced with a suspect
who was actively resisting, and they had to do something about it. The decision to
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restrain Jennings at that point was not constitutionally impermissible, and it is
quite true that pepper spray, Tasers, arm bars, restraint devices, spit hoods, etc. all
have their legitimate place. … Thus, the fact that the initial takedown was clearly
unconstitutional does not mean that all the officers’ subsequent actions are ipso
facto not protected by qualified immunity.
Id. at 871. In this way, Jennings bolsters Defendants’ case for qualified immunity. At the time
of Marden’s initial takedown he was actively resisting, and Derocher only struck Marden in the
head after he grabbed his testicles. After resolving that issue, the videos show that Derocher
applied only the force that was necessary to continue restraining Marden.
The cases cited by Plaintiff affirm that officers may use reasonable force in response to a
detainee’s resistance. Moreover, in a recent unpublished case, the Sixth Circuit reaffirmed that
qualified immunity shields officers that employ reasonable force in response to a reasonable
belief that a detainee is behaving in a threatening manner. See Scott v. Kent Cty., --- Fed. App’x
---, 2017 WL 655773, at *4 (6th Cir. Feb. 17, 2017). In that case, county jail employees
attempted to move the plaintiff pretrial-detainee to a new cell after disruptive behavior. The
plaintiff initially refused to leave the cell, continuing to complain, yell and threaten other
inmates. The plaintiff eventually left the cell without handcuffs and with clenched fists. Id. at
*2. A deputy told the plaintiff to relax and release his fists, to which the plaintiff responded by
stepping towards the deputy. Id. The deputy, perceiving a threat, responded by reaching around
the plaintiff’s neck and taking him to the ground. Id. On appeal, the Sixth Circuit affirmed the
district court’s grant of summary judgment to the deputy on the basis of qualified immunity. Id.
at **4-5. The Sixth Circuit reasoned that the plaintiff had not identified any clearly established
law that would have placed the deputy on notice that the takedown was unconstitutional
excessive force. Id.

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Scott involved a plaintiff that had not actually employed any active physical resistance.
In the present case, Marden had been actively resisting for over a half hour, and continued to
actively resist the officers leading up to and during the course of the takedown. Plaintiff has
identified no clearly established law that would have placed Derocher on notice that striking
Marden in the head after Marden grabbed his testicles was unconstitutional. Derocher is
therefore shielded by qualified immunity for striking Marden in the head.
b.
Plaintiff next alleges that Lieutenant Derocher used excessive force on Jack Marden by
placing a spit hood over his head. See Compl. 13, ¶¶ 2(e) & (f). Plaintiff has not cited any
clearly established law or precedent holding that the use of a spit hood is per se excessive force.
Instead, as noted above, the very case cited by Plaintiff confirms that spit hoods have their
“legitimate place.” Jennings, 659 Fed. App’x at 871. Plaintiff therefore has not demonstrated
that it violated any clearly established precedent for Derocher to place a spit-hood on Marden’s
head, particularly where Marden was actively resisting the officers and had already used bodily
fluids as weapons. The Officer Defendants are therefore entitled to qualified immunity on this
claim.
c.
Plaintiff alleges that the Deputy Defendants violated Plaintiff’s constitutional rights by
participating in and failing to intervene to prevent Derocher’s alleged use of excessive force. See
Compl. 13-14, ¶¶ 2(g)-(j). However, because Derocher’s use of force was not in violation of any
clearly established Constitutional right, the Deputies did not violate any clearly established
Constitutional right by failing to intervene. They are therefore entitled to qualified immunity.

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Summary judgment will thus be granted in the Officer Defendants’ favor as to Plaintiff’s
excessive force claims.
ii.
Plaintiff next alleges that the Officer Defendants violated Jack Marden’s constitutional
rights through deliberate indifference to his serious medical conditions. The Eighth Amendment
prohibition against cruel and unusual punishment includes a prohibition against deliberate
indifference to a prisoner’s serious medical needs, meaning the “unnecessary and wanton
infliction of pain.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). (internal quotations and citation
and omitted). This standard has been applied to pre-trial detainees such as Marden 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, a plaintiff must demonstrate 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, a plaintiff must show that the prison official had a subjectively “sufficiently culpable
state of mind.” Id. (quoting Farmer, 511 U.S. at 834).
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, an official is
deliberately indifferent if “the official knows of and disregards an excessive risk to inmate health
or safety; the official must both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at
837. But an official is not free to ignore obvious dangers to inmates and may be liable even if he
or she does not know the exact nature of the harm that may befall a particular inmate. Id. at 843–

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44. 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 in state tort law.” Graham ex rel. Estate of Graham v. County
of Washtenaw, 358 F.3d 377, 385 (6th Cir. 2004).
Plaintiff alleges that, by placing a spit hood over Marden’s face, the Officer Defendants
were deliberately indifferent to Marden’s existing medical conditions, including his coronary
artery disease and myocardial infarction, and his inability to breathe. See Compl. p. 14 ¶¶ 2(l)(n).

This is not a case where Defendants failed or refused to provide Marden with medical

attention. It is also an unusual case, in that the series of events leading to Marden’s medical
emergency arose in part out of the jail officials’ attempts to obtain medical care for Marden.
After Marden began behaving erratically, Defendants developed a plan to extricate him from his
cell in order to transport him to the hospital for medical care. During the course of the attempted
extraction, medical staff supplied Marden with a shot of Haldol. When Marden began audibly
struggling to breathe during the struggle, Defendant Derocher directed a staff member to
immediately call 911. He also repeatedly advised Marden to relax. Derocher directed that
Marden be moved out from under the sink, that the Deputy Defendants avoid placing pressure on
his chest, and ultimately directed that he be placed in a chair – all in an attempt to improve
Marden’s breathing. As soon as a nurse recommended removing the spit hood, Defendants did
so.

When Marden lost consciousness, Defendants immediately removed Marden from the

restraint chair and began performing CPR until emergency medical personnel arrived on the
scene.
In assessing the facts, this Court must take into account the “perspective of a reasonable
officer on the scene, including what the officer knew at the time, not with the 20/20 vision of

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hindsight.” Kingsley, 135 S.Ct. at 2473. At the time of the incident, the Officer Defendants
observed that Marden was struggling to breathe and knew that Marden required urgent medical
treatment. However, Plaintiff has presented no evidence that Defendants knew that the use of a
spit hood would exasperate Marden’s medical conditions.

Plaintiff points to Deputy

Kryzanowicz’s deposition testimony where he states that he did not take the spit hood off Jack
Marden “[b]ecause everybody that the spit mask is used on says they cannot breathe.” See
Kryzanowicz Dep. p. 34, ECF No. 64-38. But the thrust of Deputy Kryzanowicz’s testimony is
not that the spit hood causes people to struggle breathing, but that inmates disingenuously claim
they cannot breathe in an attempt to secure removal of the spit hood. Deputy Kryzanowicz
further testified that, in response to Marden’s complaints that he could not breathe, Kryzanowicz
lessened the pressure on Marden’s upper extremities. Id. Deputy Kryzanowicz’s testimony thus
further confirms that Defendants took active steps to provide Marden with medical assistance.
Plaintiff also has not cited any precedent establishing that the use of a spit hood is a per se
obvious danger or unreasonable risk. Farmer, 511 U.S. at 837, 844. Therefore, even assuming
that Marden’s medical conditions were sufficiently serious to give rise to the potential for
liability, Plaintiff has not established that Defendants’ use of the spit hood violated any clearly
established constitutional right. Summary judgment will therefore be entered in favor of the
Officer Defendants as to Plaintiff’s deliberate indifference claim on the basis of qualified
immunity.
iii.
In her final § 1983 allegation against the Officer Defendants, Plaintiff alleges that the
Officer Defendants violated Jack Marden’s constitutional rights by failing to follow the jail’s
guidelines and procedures regarding CERT operations.

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Specifically, Plaintiff argues that

Defendant Derocher improperly entered the cell and restrained Marden with the CERT team
without donning proper CERT attire. See Compl. p. 12-14 ¶¶ 2(a), (c) & (d).2
As explained by the Supreme Court, officials “do not lose their qualified immunity
merely because their conduct violates some statutory or administrative provision.” Davis v.
Scherer, 468 U.S. 183, 194 (1984). In a § 1983 case, “the issue is whether [the officers] violated
the Constitution, not whether [they] should be disciplined by the local police force.” Smith v.
Freland, 954 F.2d 343, 347 (6th Cir. 1992). “To hold that cities with strict policies commit more
constitutional violations than those with lax policies would be an unwarranted extension of the
law, as well as a violation of common sense.” Id. Here, Plaintiff has not shown that Defendant
Derocher’s failure to don CERT attire violated any state or federal rule, much less any
constitutional right. Her claims in this regard are therefore without merit, and insufficient to
deprive the Officer Defendants of qualified immunity as to Plaintiff’s § 1983 claims.
iv.
In addition to moving to dismiss Plaintiff’s § 1983 claims, the Officer Defendants move
to dismiss Plaintiff’s state law assault and battery claims on the basis of qualified immunity.
Defendants note that they enjoy qualified immunity for intentional torts under Michigan law if
they were “acting in the course of [their] employment and at least reasonably believed that [they
were] acting within the scope of [their] authority, that [their] actions were discretionary in nature,
and that [they] acted in good faith.” Odom v. Wayne Cty., 482 Mich. 459, 481, 760 N.W.2d 217,
228-29 (2008). In her response, Plaintiff does not rebut the Officer Defendants’ assault and
battery arguments.
2

To the extent Plaintiff attempts to allege violations of jail policies that were not properly set forth in her complaint,
her arguments will be disregarded. See Tucker, 407 F.3d at 786. Moreover, such allegations are without merit for
the reasons set forth in this section.

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For the reasons stated above, because Defendants were performing discretionary actions
within the course of their employment and within the scope of their authority, and because
Plaintiff has not demonstrated that they acted with malicious intent, Defendants enjoy qualified
immunity with regard to Plaintiff’s assault and battery claims. Summary judgment will therefore
be entered as to Plaintiff’s state law claims.
B.
By a separate motion, the Midland County Defendants also move for summary judgment
as to Plaintiff’s § 1983 claims. See Mot. Summ. J. I, ECF No. 49. The claims against Defendant
Harnois and Defendant Midland County will be addressed in turn.
i.
As to Defendant Harnois, Plaintiff alleges that he is liable in his personal capacity for the
Officer Defendants’ actions due to his roles as the supervising officer and jail administrator.
Specifically, Plaintiff alleges that Captain Harnois is liable for failing to halt the attempt to
remove Marden from the cell and to prevent the improperly attired Derocher from taking part in
the operation. See Compl. p. 13 ¶¶ 2(b) & (k). Plaintiff also alleges that Captain Harnois is liable
for participating and failing to intervene in allegedly unconstitutional excessive force and
deliberate indifference to Marden’s severe medical needs. Id. at ¶ 2 (g)-(i) & (l)-(n).
In moving for summary judgment, Defendants argue that Defendant Harnois cannot be
liable for an omission or failure to act under § 1983, that Defendant Harnois’s conduct was
reasonable, and that his actions did not violate any clearly established constitutional right.
“Supervisory liability under § 1983 cannot attach where the allegation of liability is based upon a
mere failure to act.” Bass v. Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999) (citing Leach v.
Shelby County Sheriff, 891 F.2d 1241, 1246 (1989)). Rather, the supervisors must have actively

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engaged in unconstitutional behavior. Id.

Captain Harnois therefore is not liable for any

ommissions.
Moreover, for the same reasons that Plaintiff has not demonstrated that the Deputy
Defendants’ actions violated any clearly established constitutional right, Plaintiff has not
demonstrated that Captain Harnois’s actions violated any clearly established constitutional right.
Because Plaintiff has not identified any precedent establishing that Defendant Harnois’s actions
were objectively unreasonable, Defendant Harnois is entitled to summary judgment on the basis
of qualified immunity.
ii.
Plaintiff alleges that Defendant Midland County is liable for the actions of the individual
defendants because it “authorized, tolerated, ratified and permitted and/or acquiesced in the
creation of policies, practices and customs including inadequate training especially when making
decisions on the use of force toward individuals incarcerated in the Midland County Jail….” See
Compl. pp. 14-15. 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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A plaintiff can make a showing of an illegal policy or custom by demonstrating one of
the following: (1) the existence of an illegal official policy or legislative enactment; (2) that an
official with final decision making authority ratified illegal actions; (3) the existence of a policy
of inadequate training or supervision; or (4) the existence of a custom of tolerance or
acquiescence of federal rights violations. See Thomas v. City of Chattanooga, 398 F.3d 426, 429
(6th Cir. 2005). A municipality “may not be sued under § 1983 for an injury inflicted solely by
its employees or agents.” Monell, 436 U.S. at 694.
a.
In her complaint Plaintiff alleges a single theory of liability against Defendant Midland
County: that Midland County was responsible for the individual Defendant’s unconstitutional
acts because it provided inadequate training on the use of force. See Compl. pp. 14-15 ¶ 2(o).
Plaintiff’s complaint does not identify any specific policy or specific allegations regarding the
purported insufficient training. In their motion for summary judgment, the Midland County
Defendants argue that Plaintiff’s Monell claim should be dismissed under Rule 12(c) for failing
to meet the essential notice pleading requirements. In the alternative, Defendants argue that
Midland County had adequate training programs.
The Supreme Court has held that a city can be liable under § 1983 for inadequate training
of its employees. See City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989). As a matter of
law, “[o]nly where a failure to train reflects a ‘deliberate’ or ‘conscious’ choice by a municipality
– a ‘policy’ as defined by our prior cases – can a city be liable for such a failure under § 1983.”
Id. at 388-89. The Court further instructed that liability may arise in cases where “in light of the
duties assigned to specific officers or employees the need for more or different training is so
obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the

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policymakers of the city can reasonably be said to have been deliberately indifferent to the
need.” Id. at 390. Distilling this precedent, the Sixth Circuit has instructed that a plaintiff must
prove three distinct facts to proceed on a § 1983 claim based on inadequate training: (1) that a
training program is inadequate to the tasks that the officers must perform; (2) that the inadequacy
is the result of the city’s deliberate indifference; and (3) that the inadequacy is closely related to
or actually caused the plaintiff’s injury. See Alman v. Reed, 703 F.3d 887, 903 (6th Cir. 2013).
In her response to Defendants’ motion for summary judgment, Plaintiff argues that
Midland County did not adequately train the individual Defendants on the use of spit hoods,
which caused Jack Marden’s injuries and death. Even if Plaintiff could show inadequate training,
Plaintiff cannot demonstrate that the inadequate training was the product of Defendant Midland
County’s deliberate indifference to an obvious danger of constitutional violations. Again,
Plaintiff has cited no law or precedent providing guidance on the use of spit hoods that would
have placed Midland County on notice of any potential risk. Despite having a full and fair
opportunity for discovery, Plaintiff has not presented any evidence that Midland County was
otherwise aware of any particular risk of harm arising from the use of spit hoods. Therefore, as a
matter of law, Plaintiff has not met the high bar of demonstrating deliberate indifference.
b.
In her response to Defendants’ motion for summary judgment, Plaintiff argues for the
first time that Defendant Midland County is liable for the individual Defendants’ actions because
Captain Harnois—the jail administrator—is vested with final policymaking authority for the
municipality with regard to CERT operations. See Miller, 408 F.3d at 813. At no point in
Plaintiff’s complaint did she allege that Captain Harnois was a policymaking official, and she
never attempted to amend her complaint so as to place Defendant Midland County on notice that

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she was pursuing such a theory of liability. Plaintiff may not introduce a claim for the first time
in a response to a motion for summary judgment. See Tucker v. Union of Needletrades, Indus. &
Textile Employees, 407 F.3d 784, 786 (6th Cir. 2005). In the alternative, in her response to the
Midland County Defendants’ motion for summary judgment Plaintiff requests permission to
amend her complaint.

This Court does not entertain requests for affirmative relief within

responses or replies. See E.D. Mich. Electronic Filing Policies and Procedures R. 5(f).
Furthermore, Plaintiff’s proposed claims regarding policymaking officials would be
without merit. In Pembaur, the Supreme Court explained that the “official policy” requirement
of Monell was intended to distinguish acts of the municipality from acts of the municipality’s
employees. Id. at 1297-99. “Officials can derive their authority to make final policy from
customs or legislative enactments, or such authority can be delegated to them by other officials
who have final policymaking authority.” Id. The question of whether a government official is
vested with final policymaking authority is a question of state law. Pembaur, 475 U.S. at 483. It
is the court’s task to identify the officials or governmental bodies which speak with final
policymaking authority for the local government in a particular area or on a particular issue.
McMillian v. Monroe County, 520 U.S. 781, 784–85, (1997). In matters pertaining to the
conditions of the jail, the sheriff is the policymaker for the county. See MICH. COMP. LAWS §
51.75 (sheriff has the “charge and custody” of the jails in his county); See MICH. COMP. LAWS §
51.281 (sheriff prescribes rules and regulations for conduct of prisoners); Kroes v. Smith, 540
F.Supp. 1295, 1298 (E.D. Mich. 1982) (the sheriff of “a given county is the only official with
direct control over the duties, responsibilities, and methods of operation of deputy sheriffs” and
thus, the sheriff “establishes the policies and customs described in Monell”). Plaintiff argues that
the Midland County Sheriff Policies and Procedures delegates the responsibility of establishing

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emergency response team procedures and guidelines to the jail administrator. See CERT Policies
and Procedures (“CERT P&P”), ECF No. 65-21. See also Pembauer, 475 U.S. at 483
(“[a]uthority to make municipal policy may be granted directly by a legislative enactment or may
be delegated by an official who possess such authority….”). Indeed, Jail Policy and Procedure
3.112 gives the “Jail Manager” power to amend or repeal CERT. policies and procedures. See
CERT. P&P 3.112X.3
Plaintiff argues that Captain Harnois’s actions were the moving force behind the
constitutional violations experienced by Jack Marden because he ordered the officers donning
CERT gear to extract Marden from his cell without having reviewed Marden’s medical history.
Plaintiff has not argued that Midland County’s CERT policies and procedures are facially invalid.
Therefore, in raising her as applied challenge based upon an isolated incident, Plaintiff “must
demonstrate that the municipal action was taken with ‘deliberate indifference’ as to its known or
obvious consequences. A showing of simple or even heightened negligence will not
suffice.” Gregory v. City of Louisville, 444 F.3d 725, 752 (6th Cir. 2006) (quoting Bd. of County
Comm’rs v. Brown, 520 U.S. 397, 407 (1997)). “Deliberate indifference is a stringent standard of
fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his
action.” Brown, 520 U.S. at 410.
Plaintiff has not demonstrated that Harnois’s discretionary decision to utilize a CERT
operation was unconstitutional. As explained by the Supreme Court, courts must account for the
“legitimate interests that stem from the government’s need to manage the facility in which the

3

Plaintiff’s corresponding argument that Lieutenant Derocher was a policymaking official is without merit. “Mere
authority to exercise discretion while performing particular functions does not make a municipal employee a final
policymaker unless the official’s decisions are final and unreviewable and are not constrained by the official policies
of superior officials. Feliciano v. City of Cleveland, 988 F.2d 649, 655 (6th Cir. 1993). While Derocher may have
had discretion in acting as the team leader for CERT operations, Plaintiff has presented no evidence that he had the
authority to establish jail policy or that his actions were unreviewable by his superiors.
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individual is detained, appropriately deferring to policies and practices that in the judgment of
jail officials are needed to preserve internal order and discipline and to maintain institutional
security.” Kingsley, 135 S. Ct. at 2473, (quoting Bell, 441 U.S. at 540) (alterations omitted).
County jails therefore have broad discretion in employing procedures designed to address erratic
and potentially dangerous inmates. Even if failing to review Marden’s medical history constitutes
negligence, Plaintiff has not demonstrated that Captain Harnois’s conduct rose to the level of
“deliberate indifference.” That Marden would suffer a heart attack while Defendants attempted
to relocate him to obtain urgent medical care was neither known nor obvious. Again, this Court
must take into account the “perspective of a reasonable officer on the scene, including what the
officer knew at the time, not with the 20/20 vision of hindsight.” Kingsley, 135 S.Ct. at 2473.
Plaintiff therefore has not demonstrated that Defendant Harnois was deliberately indifferent in
overseeing the CERT operation.
c.
Plaintiff also argues for the first time in her response that Defendant Midland County is
liable for having a policy of failing to supervise Deputy Speich, who had previously been
disciplined for a single incident in which he employed excessive force. As with Plaintiff’s
previous Monell argument, Plaintiff did not raise this claim in her complaint, and did not attempt
to amend her complaint. She therefore waived her right to raise such an argument in a response
to a motion for summary judgment. See Tucker, 407 F.3d at 786. Even so, Plaintiff’s argument
is without merit. Because Plaintiff has not shown that Deputy Speich committed any
constitutional violation during the incident in question, Plaintiff cannot show that any alleged
policy of failing to supervise Speich was the driving force behind Marden’s injuries.
IV.

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In two additional motions pending before the Court, Defendants move to challenge the
revised opinion of their own expert, Dr. Verani, and move to strike rebuttal experts disclosed by
Plaintiff after the deadline. See ECF Nos. 44, 63. In his revised opinion Dr. Verani posits that
the use of a spit hood limited Marden’s ability to breathe and contributed to his death. See Verani
Dep. 20-24, ECF No. 44-2. The opinions of the two rebuttal experts, Doctor Jeffrey Breall,
M.D., Ph.D., and Doctor William Cardasis, M.D., concern the possible causes of Marden’s
erratic behavior and Marden’s ultimate cause of death.
As noted above, Plaintiff’s claims focus solely on Defendants’ alleged misuse of force in
responding to Jack Marden’s behavior on February 11, 2015, and therefore any actions of the jail
medical providers during the time between Marden’s intake and the events that took place on
February 11, 2015 are irrelevant based on the framing of Plaintiff’s complaint. See ECF No. 33.
For this reason, and because this case is being decided on the basis of qualified immunity and
deliberate indifference, there is no need to address the admissibility of these expert opinions.
Defendant’s motions to strike will therefore be denied as moot.
V.
Accordingly, it ORDERED that Defendants’ motions for summary judgment, ECF Nos.
49, 51, are GRANTED.
It is further ORDERED that Plaintiff’s complaint, ECF No. 1, is DISMISSED with
prejudice.
It is further ORDERED that Defendants’ motion to challenge Dr. Verani’s new opinion
testimony, ECF No. 44, and Defendants’ to strike newly added expert witnesses, ECF No. 63,
are DENIED as moot.

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s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: March 24, 2017

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 March 24, 2017.
s/Michael A. Sian
MICHAEL A. SIAN, Case Manager

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