Fisher v. Macomb, County of et al

Filing 59

OPINION and ORDER granting 48 Motion for Summary Judgment; granting 48 Motion to Dismiss; granting 38 Motion for Summary Judgment. Signed by District Judge Paul D. Borman. (DGoo)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARC FISHER
Plaintiff,

Case Number: 2:08-cv-13844

v.

Paul D. Borman
United States District Court

COUNTY OF MACOMB, a Municipal
Corporation, MACOMB COUNTY
SHERIFF’S DEPARTMENT, a duly
organized Government Department of
Macomb County, SHERIFF MARK A.
HACKEL, an individual and Elected
Sheriff of Macomb County, CORRECTIONAL
MEDICAL SERVICES, INC., a Michigan
Corporation, and JOHN DOES 1-10, various
unnamed Macomb County Correctional and
Law Enforcement Officers and Deputies,
Defendants.
_______________________________________/
OPINION AND ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT
This matter comes before the Court on Defendant County of Macomb’s (“Macomb County”
or the “County”) motion for summary judgment (Dkt. No. 38) and Defendant Correctional Medical
Services, Inc.’s (“CMS”) motion for summary judgment (Dkt. No. 48). Plaintiff has filed a
combined response to both motions. (Dkt. No. 56.) Defendant CMS has filed a reply brief (Dkt.
No. 58), Macomb County did not. In his response, Plaintiff agreed to dismiss Defendants Macomb
County Sheriff’s Department and Sheriff Mark A. Hackel. (Pl.’s Combined Resp. to Defs.’ Mot for
Summ. J. 10.) Oral arguments were heard on May 20, 2011. For the following reasons the Court
GRANTS Defendants’ motions for summary judgment.
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I.

Background
This action arises from Plaintiff Marc Fisher’s (“Plaintiff” or “Fisher”) claims against

Defendants Macomb County, CMS, and John Does 1-10 for violations of his constitutional rights
under 42 U.S.C. § 1983, gross negligence, assault and battery, and intentional infliction of emotional
distress stemming from a seizure he suffered on January 11, 2008 at around 8:15 p.m. – one day
after he was incarcerated in the Macomb County Jail (the “MCJ”).
A.

The Parties

Macomb County operates the MCJ; CMS is a private corporation that the County contracts
with to provide medical services to inmates; and John Does 1-10 are various MCJ deputies and CMS
employees. Although all of the John Does in Plaintiff’s Complaint remain unidentified, the parties
have identified several individuals whose conduct is crucial to Plaintiff’s claims. Debra Holmes was
the CMS nurse who was working intake when Plaintiff arrived at the MCJ and performed his initial
medical screening. Dr. Ernesto Bedia, the MCJ’s only medical doctor, examined Plaintiff at 1:40
p.m the day of the seizure. Nurses Raymond Sellman and Kyra Busby were working in Plaintiff’s
area, D-block, when inmates reported Plaintiff was having a seizure. Deputy Brandon Cleland was
a deputy working in D-block that night. Cleland, Sellman, and Busby all responded to Plaintiff’s
seizure at the same time.
B.

Plaintiff’s Medical and Criminal History

Plaintiff is an epileptic. (Pl.’s Resp. 1.) He was diagnosed with epilepsy when he was seven
years old. Since then, he has constantly taken prescription medication for his condition. Plaintiff
has been prescribed two daily medications, Tegretol XR and Keppra, to help control his seizures.
In November 2002 or 2003, Plaintiff failed to obtain a new prescription for his medications because

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he did not have enough money to buy them. After missing only one day’s worth of his medications,
Plaintiff suffered a seizure while driving his car. (Pl.’s Resp. Ex. 1, Deposition of Marc Fisher
33:23-34:7, Apr. 14, 2009.)
Over the years, Plaintiff’s doctors have steadily increased his dosages for both Tegretol and
Keppra, despite periodic unsuccessful attempts to lower his dosage. Plaintiff’s current neurologist
Dr. Martin Belkin stated in an affidavit that as early as August 20, 2007 he had prescribed Plaintiff
1000 mg of Tegretol twice a day, and 500 mg of Keppra twice a day. (Pl.’s Resp. Ex. 2, Affidavit
of Dr. Martin Belkin ¶ 7, Feb. 10, 2010).
In January 2008, Plaintiff violated his probation from an earlier misdemeanor conviction for
marijuana possession and was ordered to be locked up in the MCJ in January 2008 to serve the
remaining 60 days on his original 90-day sentence. (Pl.’s Resp. 1.) On January 10, 2008, Plaintiff
was taken into custody and transported to the MCJ. (Def. Macomb County’s Br. in Supp. of its Mot.
for Summ. J. 1.)
C.

Events Leading Up to the Seizure

When Plaintiff was taken to the MCJ, Nurse Holmes conducted his mandatory medical
screening. Although the intake form signed by both Holmes and Plaintiff indicates that Plaintiff did
not report any serious medical issues or that he was taking any medications, at some point Plaintiff
told Holmes that he was an epileptic and took Tegretol and Keppra twice daily, although he had not
taken either medication that day or brought any prescriptions with him. (Fisher Dep. 68:2-69:22.)
Plaintiff also indicated that he had previously been incarcerated in the MCJ in 2006.
Pursuant to CMS policy, Holmes attempted to verify that Plaintiff had a current prescription
for the medications he claimed he needed. Holmes asked Plaintiff what doctor prescribed him the

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drugs and what pharmacy he filled them at. The record does not demonstrate whether Plaintiff told
Holmes that his doctor was Dr. Belkin, but he did tell her that he filled his prescriptions at the
Costco on Hall Road in Shelby Township.1 When she contacted Costco, however, she learned that
Plaintiff had last filled his Tegretol on October 26, 2007 and his Keppra on July 26, 2007. On those
dates he received 12 days’ worth of Tegretol and 30 days’ worth of Keppra, respectively. Because
Holmes believed that this indicated Plaintiff did not have a current prescription as required, Holmes
contacted Dr. Bedia. He instructed her to have Plaintiff sent to his clinic the next day so he could
evaluate him and determine whether it would be appropriate to prescribe him Tegretol and Keppra.
Holmes followed these instructions and also ordered Plaintiff to be placed on a lower-bunk, which
is a standard practice for inmates at risk of suffering seizures.
Plaintiff claims that during his screening with Nurse Holmes, he told her that he needed his
medication immediately or there was a very good chance he would suffer a seizure. He claims that
Holmes told him that he could go 48 hours without his medicine. (Fisher Dep. 69:21-70:11.) When
he told her he cannot wait that long, Holmes allegedly said “I am a nurse, if I recall correct, you can
go 48 hours.” (Id.) Plaintiff also claims that afterwards he told every deputy that walked by his cell
that he needed his medication or he would have a seizure. (Id. at 53:1-6.) He claims that he told
them that he needed his medication for Tegretol and Keppra for his epilepsy, that the jail had it on
record from before, and that he could not go for a period of time without it. (Id.) He admits,
however, that no officers acknowledged his comments by verbally responding or even making eye

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In his deposition, Plaintiff also explained that he sometimes “calls around” to find a
cheaper deal on his prescriptions, although he has not done that in a while. (Fisher Dep. 34:1935:25.) There is no evidence that Plaintiff informed Nurse Holmes of this practice.
Furthermore, when asked whether he would have last filled his prescriptions before January
2008 at Costco, he replied “[y]es, I go to Costco.” (Id. at 154:2-8.)
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contact, and he does not know their names. (Id. at 54:21-55:5.) That first night at the MCJ, on
January 10, Plaintiff fell asleep without any difficulty or incident. (Id. at 85:5-7.)
The next day, January 11, 2008, Plaintiff was evaluated by Dr. Bedia at 1:40 p.m.2 Plaintiff
still had not been given his medication, but during his examination Dr. Bedia determined that
Plaintiff was suffering from a seizure disorder and prescribed him both Tegretol and Keppra at the
same dosages he was previously taking. Accordingly, Plaintiff was scheduled to receive both drugs
at the next medication pass that night at 10:00 p.m. At the MCJ, medication is passed out at 10:00
a.m. and 10:00 p.m. unless special arrangements are made. Dr. Bedia testified that he did not think
it was necessary to make sure Plaintiff was given his medications immediately on January 11
because he did not seem like he was having a problem. Plaintiff’s vital signs were stable, and there
were no noticeable symptoms of an aura – a sign of an impending seizure.
D.

Defendants’ Response to the Seizure3

That night, on January 11, Plaintiff went to sleep without any problems sometime in the
evening. Unfortunately, at around 8:15 p.m. Plaintiff suffered a seizure. Nurses Sellman, Busby
and Deputy Cleland rushed to Plaintiff’s cell when they heard other inmates shouting that someone
was having a seizure. Busby, Sellman, and Cleland said that when they arrived, Plaintiff was on a
lower bunk with other inmates around him. At some point Cleland stated that he saw Plaintiff

2

At his deposition, Plaintiff did not believe he saw a doctor that day, (Fisher Dep. 93:17). Dr. Bedia’s report was dated January 11, 2008 and the time written down was 1:40. (CMS’s
Br. Ex. A, at 17.) In his brief, Plaintiff does not seem to dispute that he saw Dr. Bedia on
January 11. (Pl.’s Resp. 5.)
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Plaintiff testified that he does not remember anything that happened at the MCJ after he
fell asleep in the evening on January 11 and went into his seizure. He claimed that the next thing
he knew he woke up at Mount Clemens General Hospital. (Fisher Dep. 84:18-85:4, 99:19-25.)
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standing, but it was unclear when that was. After clearing away the other inmates, Nurses Sellman
and Busby lowered Plaintiff from the bed to the floor. Sellman, Busby, and Cleland all testified that
in their opinion Plaintiff was not having a seizure when they arrived, because, as Nurse Busby
explained, Plaintiff was alert, yelling, had enough control over his motor skills to grab things, was
not sweating, and he was not shaking. Traditionally seizure victims are in a postictal state, tired,
snoring, unable to communicate, and sweaty. (Pl.’s Resp. Ex. 5, Deposition of Kyra Busby 25:1428:24, Nov. 10, 2009.)
All three employees testified that as Sellman and Busby attempted to assess Plaintiff’s
condition, Plaintiff reached up and grabbed Sellman’s arm or wrist. After Sellman broke free from
his grip Plaintiff again sat up and grabbed Sellman’s shirt by the neck. Busby testified that Plaintiff
was thrashing and yelling profanities. At one point she also said “he tried to swing on me as I’m
trying to get his blood pressure.” (Id. at 28:11-24.) In Nurse Sellman’s report written immediately
following the incident, he noted “[Plaintiff] grabbed my R wrist. At first, I pulled away and tried
to ask him some questions, at which point he sat up, grabbed my shirt by the neck, and my R arm
and began fighting me.” (CMS’s Br. Ex A, at 7.) In her written report, Nurse Busby stated
“[inmate] was extremely combative.” (Id., at 6.)
When Plaintiff grabbed Nurse Sellman, Deputy Cleland radioed that he needed more officers
in D-block. In less than a minute, several officers (Cleland said probably around five or six) arrived
at the cell to assist Cleland. When the officers came in, both nurses stepped out of the cell. Because
in Cleland’s opinion Plaintiff had assaulted Nurse Sellman and because he was being combative, the
officers attempted to handcuff his arms behind his back. Plaintiff, however, allegedly resisted and
did not follow their commands. In order to “gain control” over Plaintiff, Cleland executed four or

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five common peroniel knee strikes, striking Plaintiff in the peroniel nerve that runs along the outside
of his leg. Cleland explained that this tactic is a pain compliance technique to get the inmate to
follow an officer’s commands. Neither Busby, Sellman, or Cleland saw any other officers kick,
punch, or strike Plaintiff.4 After a few minutes, the officers were able to handcuff Plaintiff and take
him down to the medical unit. An ambulance was also called. While waiting for the ambulance in
the medical unit, Nurse Busby and Cleland reported that Plaintiff “remained combative” and
“continued to fight with officers.” (CMS’s Br. Ex. A, at 6; Pl.’s Br. Ex. 11.)
The ambulance arrived a short time later and transported Plaintiff to Mount Clemens General
Hospital at 8:30 p.m. (CMS’s Br. Ex. A, at 36.) Plaintiff was taken out of his handcuffs to be
placed in the ambulance, but then was re-handcuffed to the stretcher. When he was handcuffed to
the stretcher, Cleland had time to make sure they were “spaced and locked,” which means that there
is room for an officer to get a finger in between the cuffs and the inmate’s wrist (spaced) and double
locked so the prisoner cannot accidentally tighten them (locked). (Macomb County’s Br. Ex. B,
Deposition of Brandon Cleland 53:10-16, Nov. 20, 2009.) On the form Nurse Busby gave to the
EMS personnel before the ambulance left, she again noted that Plaintiff had been “extremely
combative” and that she was unable to obtain his vital signs because of that. (CMS’s Br. Ex. A, at
36.) That Plaintiff was being combative was corroborated by the ambulance staff’s decision to
“chemically restrain” Plaintiff with Ativan, a benzodiazepine used to treat anxiety. (CMS’s Br. Ex.

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In his deposition, Plaintiff testified that when he was returned to the MCJ after being
released from the hospital “everybody” told him he had been beaten by the guards. (Fisher Dep.
102:23-103:9.) He said cellmates told him they had never seen someone get beat like that
before. (Id. at 104:15-105:7.) These allegations, however, are hearsay and therefore not
admissible. Plaintiff has not introduced any affidavits or deposition testimony from any of these
alleged witnesses even though he and his lawyer obtained about half a dozen of their names and
other information. (Id. at 105:1-106:20.)
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C, Mt. Clemens Gen. Hosp. Records, at 7.) Additionally, Mt. Clemens staff noted in Plaintiff’s ER
Report that “[u]pon his arrival, the patient was verbally as well as physically combative with staff.”
(Id., at 6.)
At the hospital, Plaintiff was given his medications which returned his Tegretol levels to the
therapeutic range. He also received a full work-up including CT scans, blood tests, and x-rays.
With respect to the nerve damage in his wrists of which he now complains was caused by Cleland’s
use of force, the ER Report states that Plaintiff “denied lightheadedness, dizziness, or headache. He
denied having hit his head. He denies neck pain, back pain, shortness of breath, chest pain,
abdominal pain, calf pain, or other complaint.” (Id.) An examination of Plaintiff when he arrived
at the hospital revealed that he had “[n]o abrasions, lacerations, or rashes. No other sign of trauma.”
(Id., at 7.) On January 12, 2008 at around 2:00 p.m., another form was filled out – an ER
Documentation. (Id., at 48.) In the neurological section it stated “[m]otor stength to all extremities
are strong and equal” and “[p]atient moves all extremities.” (Id., at 48 & 49.)
When Plaintiff was returned to the medical ward at the MCJ, he had a conversation with
Cleland during which he held out his hands and said “you guys didn’t have to do this to me” –
referring to his wrists which were bruised. (Cleland Dep. 55:15-24.) After leaving the MCJ,
Plaintiff went to Henry Ford Macomb Hospital on 19 Mile between Hays and Garfield for further
testing. (Fisher Dep. 117:17-25.) On January 22, 2008, a radiologist at Henry Ford interpreted four
x-rays of each of Plaintiff’s wrists. (CMS’s Br. Ex. E.) In each wrist he reported “no acute
fracture,” no dislocation, no signs of gross soft tissue, and no bony destructive process. (Id., at 9
& 10.) The doctor also took four x-rays of Plaintiff’s left elbow and found he had “[p]robably small
spur rather than a chip fracture of the coronoid process. Correlate with point tenderness.” (Id., at

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8.) When Plaintiff was discharged, his Patient Visit Summary indicated under Injury/Illness that he
had a contusion on his upper extremity. (Id., at 14.)
E.

Plaintiff’s Claims

Plaintiff claims that Macomb County, CMS, and several John Doe Defendants were
deliberately indifferent to his serious medical needs – in particular the risk of seizure he faced if he
did not receive his medications. Plaintiff also alleges that the County’s policies, practices, or
customs regarding its supervision and training of its employees caused them to not give him his
medicine in a timely manner, which ultimately caused him to have a seizure. In addition, Plaintiff
has brought state-law tort claims for gross negligence, assault and battery, and intentional infliction
of emotional distress. Through their two motions Defendants have asked this Court to grant them
summary judgment on all of Plaintiff’s claims.
II.

Standard of Review
Summary judgment is only appropriate if there are no genuine issues of material facts and

the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). A genuine
issue of material fact exists when there is “sufficient evidence favoring the non-moving party for a
jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986);
see also Henderson v. Walled Lake Consol. Schs., 469 F.3d 479, 487 (6th Cir. 2006). When
applying this standard, courts must view all materials, including all of the pleadings, in the light
most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986).
The moving party bears the responsibility of establishing no issue of material fact exists.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party meets its burden, the

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non-moving party must go beyond the pleadings and come forward with specific facts to
demonstrate that there is a genuine issue for trial. Id. at 324. The non-moving party must do more
than show that there is some abstract doubt as to the material facts. It must present significant
probative evidence the issue exists in order to defeat a motion for summary judgment. See Moore
v. Philip Morris Cos., 8 F.3d 335, 339-40 (6th Cir. 1993).
III.

Discussion
A.

Policies, Practices, and Customs

A plaintiff may bring a § 1983 claim against a municipality or local government. Monell v.
Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). To prevail in such a suit, the plaintiff must show
that the alleged violation of his federal rights was caused by a municipal policy or custom. Thomas
v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005); see also Monell, 436 U.S. at 692 (stating
that the drafters of § 1983 intended only to impose liability on a government that “causes” an
employee to violate another’s rights under color of some official policy). A plaintiff asserting a §
1983 claim on the basis of municipal custom or policy must identify the policy, connect the policy
to the municipality, and show that the specific injury at issue was caused by the execution of that
policy. Graham v. County of Washtenaw, 358 F.3d 377, 383 (6th Cir. 2004). The causal link must
be strong enough to support a finding that the defendants’ deliberate conduct can be deemed the
“moving force” behind the violation. Id. (quoting Waters v. City of Morristown, 242 F.3d 353, 362
(6th Cir. 2001)).
In Thomas, the Sixth Circuit identified four ways a plaintiff may prove the existence of an
illegal policy or custom. 398 F.3d at 429. The plaintiff can point to (1) the government’s legislative
enactments or official policies; (2) actions by officials with final decision-making authority; (3) a

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policy of inadequate training or supervision; or (4) a custom or practice of tolerating the violation
of federal rights by its officers or agents. Id. Where no formal policy exists, the critical inquiry is
whether there is a policy or custom that although not explicitly authorized “is so permanent and well
settled as to constitute a custom or usage with the force of law.” Jones v. Muskegon County, 625
F.3d 935, 946 (6th Cir. 2010) (quoting McClendon v. City of Deteroit, 255 F. App’x 980, 982 (6th
Cir. 2007)). A municipality cannot be held liable pursuant 42 U.S.C. § 1983 on a theory of
respondeat superior. Monell, 436 U.S. at 691-95; Phillips, 534 F.3d at 543 (quoting Shehee v.
Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)).
Plaintiff’s claims against both Defendant Macomb County and Defendant CMS are analyzed
under these general rules. CMS is treated as a municipality for purposes of liability under § 1983
because Monell’s holding extends to private corporations as well. See Street Corr. Corp. of Am.,
102 F.3d 810, 817-18 (6th Cir. 1996) (quoting Harvey v. Harvey, 949 F.2d 1127, 1129-30 (11th Cir.
1992)). Plaintiff’s allegations against each of these entities will be addressed in turn.
1.

CMS

First, the Court notes that as part of his claims Plaintiff attempts to hold CMS liable for the
alleged constitutional violations and/or negligence of its employees/contractors, Nurse Holmes and
Dr. Bedia. (Pl.’s Resp. 12.) Vicarious liability on the theory of respondeat superior, however, is
categorically not permitted under 42 U.S.C. § 1983. Monell, 436 U.S. at 691-95; Phillips, 534 F.3d
at 543 (quoting Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)). As a result, Plaintiff must
prove that a specific CMS policy, custom, or practice was the “moving force” behind his injuries.
Graham, 358 F.3d at 383. Plaintiff claims that “CMS’s custom of refusing inmates prescription
medication for 48 hours constitutes deliberate indifference to Plaintiff’s medical needs.” (Pl.’s Resp.

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12.)
Plaintiff, however, mis-characterizes the CMS policy at issue in this case. Plaintiff has
presented no evidence that CMS has a custom of categorically refusing inmates prescribed
medication for 48 hours. Rather, as Nurse Busby explained, CMS policy is to ask all inmates
whether they are currently taking any prescribed medications during an intake interview. (Busby
Dep. 11:7-14:2.) If an inmate claims that they brought their medicine with them, CMS policy is to
go into the inmate’s property to make sure that they have a current prescription for the medications,
that the medicine they brought with them is actually the medicine they have been prescribed, and
then they still call the doctor to make sure he wants the medicine prescribed. (Id.) Dr. Bedia
testified that it would not be unusual for a nurse to call him at his office or at home to get an order
for a medication the inmate is required to take daily. (Pl.’s Resp. Ex. 12, Deposition of Ernesto
Bedia 19:18-20:8, Jan. 7, 2011.) After all of that, inmates are still not necessarily permitted to take
the medication they brought with; CMS policy is to treat prisoners from stocks of medicine the MCJ
has on-hand until more can be obtained from the pharmacy.5 (Busby Dep. 11:7-14:2.) The MCJ
keeps both Tegretol and Keppra on-hand. (Id.)
If an inmate tells the nurse they take medication but do not have any with them, Busby
testified that “we ask them which pharmacy they go to or what doctor they get their prescription
[from], and then we are to call the doctors or the pharmacy to get the medication verified.” After
the medication is verified, the nurse calls the doctor to get the medicine ordered. “It’s up to our
doctors to put them on that or if they want to put them on different medicine.” (Id.) Nurse Valerie

5

Exceptions are made for rare medications not kept in stock at the MCJ, such as
chemotherapy drugs. (Id.)
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Watkins, CMS’s director of nursing, testified that pharmacies are generally contacted within 24
hours to verify an inmate’s prescription. (CMS’s Br. Ex. G, Deposition of Valerie Watkins 19:6-8,
Nov. 20, 2009.) If an inmate says that it is a critical medication, however, “and [the inmates] give
us the correct information and we can verify that, then we act accordingly.” (Id. at 19:9-16.) If a
medication cannot be verified, then the inmate is put on the doctor’s list and they will see the doctor
within 24 hours, usually the next day unless the doctor is still around the prison or it is an emergency
where the prisoner is in trauma. (Busby Dep. 12:14-13:4; Watkins Dep. 23:3-9.)
Even if a medication is verified, it still has to be prescribed by CMS’s doctor. (Watkins Dep.
22:1-23:9.) If a medication is verified and confirmed that it is current, the intake nurse can simply
call the doctor and get an order. (Id.) This would be the procedure applied if a prisoner said he
needed his medicine within 24 hours. (Id.) If the medicine is not urgently needed, the inmate will
be seen by the doctor, who can then prescribe the medication, within 72 hours. (Id.) Indeed,
Plaintiff testified that when he was incarcerated in the MCJ in 2006, “they confirmed that [he]
actually needed the medication” that was sent with him from home. (Fisher Dep. 21:16-22:11.)
In order for prescriptions to be considered verified, Nurse Watkins explained that the inmate
had to have a current prescription. (Watkins Dep. 26:19-20.) Although some nurses have called
the physician given by the inmate as his doctor to verify prescriptions, Watkins testified that policy
still requires evidence that the prescription is current from the pharmacy. (Id. at 28:15-30:4.) To
determine whether a prescription is current, nurses are supposed to check when the inmate last filled
the prescription and how much medicine they were given on that occasion. (Id.) Watkins stated that
something is not current if the inmate should have run out of medicine 2-3 months ago. (Id.)
All inmates who disclose that they suffer from a chronic illness will be seen by Dr. Bedia

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in the chronic care clinic. (Id. at 37:1-13.) If an inmate tells an intake nurse that they have a chronic
medical condition and their medications cannot be verified, that inmate will be scheduled to see the
doctor the next day at the latest. (Id.) If their medicine has been verified and consequently
prescribed by the doctor, the inmate will be seen at the chronic clinic within 10-14 days. (Id.)
When an inmate is directed to see Dr. Bedia because a prescription cannot be verified, he
evaluates the prisoner to determine whether to prescribe the medication the inmate alleges he needs.
During this evaluation, the doctor would normally look at the prisoner’s past medical records if they
are available. (Bedia Dep. 25:21-24.) The doctor fills out a “Problem List” that identifies any
medical issues or information discovered during the evaluation. (Id. at 31:10-25.) When a patient
is prescribed a medication during clinic hours they are first given that medicine, if appropriate, at
the next medication pass unless the doctor specified that he needed them sooner. (Watkins Dep.
48:7-49:5.) Medication passes occur at 10:00 a.m. and 10:00 p.m. (Id.)
When responding to a seizure, Nurse Busby testified that CMS policy is to bring an
emergency bag, an EKG machine, and usually another nurse will bring a wheelchair to the scene of
the incident. (Busby Dep. 19:15-20:1.) If an inmate is still actively having a seizure, protocol is to
lower them to the ground, place them on their side and protect their head as much as possible. (Id.
at 20:6-7.) If the seizure appears to be over when the nurses arrive, nurses are supposed to try to
assess the inmate’s vital signs and make sure they have an open airway, are breathing, and have a
pulse. (Id. at 20:8-11.)
The Court finds that Plaintiff has not raised an issue of material fact as to whether or not
these policies were the “moving force” behind Plaintiff’s injuries. Every policy appears to be part
of a reasonable and safe way of medically processing and treating inmates. Furthermore, the

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policies provide flexibility to the medical health professionals who implement them to respond
immediately to emergency situations. While Plaintiff may argue that the individual Defendants
carried them out in a negligent or deliberately indifferent manner, such accusations cannot sustain
a claim against CMS under Monell. See Graham v. County of Washtenaw, 358 F.3d 377, 385 (6th
Cir. 2004) (quoting City of Canton v. Harris, 489 U.S. 378, 391 (1989)) (“There can be no municipal
liability where an otherwise sound program has occasionally been negligently administered.”)
(quotation marks omitted).
2.

Macomb County

Plaintiff alleges that Macomb County failed to “properly train, educate and supervise
prisoner intake personnel including prisoner intake nurses and physicians, sheriff’s deputies, officers
and other persons having custody and control over prisoners with respect to epileptic seizures[.]”
(Compl. ¶ 64a.) Plaintiff also accuses Macomb County of recklessly hiring employees (id. ¶ 64f),
failing to discipline, instruct, and supervise officers “thereby encouraging acts and omissions that
contributed to Mr. Fisher’s epileptic seizure” (id. ¶ 64g), and “failing to have appropriate safeguards,
procedures and policies in place to avoid and prevent restraining Mr. Fisher while he was
experiencing a painful and traumatic seizure by placing restraints on Mr. Fisher’s wrists with his
hands and arms restrained behind his back–all in direct violation of the standard protocol in handling
persons suffering from an epileptic seizure” (id. ¶ 64e). In its response, however, Plaintiff only
continues to claim that Macomb County is not entitled to summary judgment because questions of
fact exist as to whether it provided adequate training regarding the use of restraints on inmates who
just had a seizure, and whether Deputy Cleland was deliberately indifferent to Plaintiff’s serious
medical needs when he struck and handcuffed him after he suffered a seizure. (Pl.’s Resp. 10-11.)

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a.

CMS Defendants’ Actions

First, the Court notes that Dr. Bedia works for CMS and is an independent contractor for the
MCJ. (Bedia Dep. 14:15-16.) He and the rest of the CMS staff are responsible for all of the medical
decisions made with respect to the inmates at the MCJ. (Id. at 55:12-17.) In another case involving
Macomb County’s liability due to the actions of CMS and Dr. Bedia, the Michigan Court of Appeals
stated “Plaintiff must show that Macomb County’s policy to contract with CMS was the moving
force behind treatment to decedent that was deliberately indifferent to his serious medical needs.”
Hartzell v. City of Warren, No. 252458, 2005 WL 1106360, at *8 (Mich. App. May 10, 2005).
Although the court held that summary judgment for Macomb County was appropriate
because the plaintiff could not establish any of the CMS defendants were deliberately indifferent on
their own, the court also noted that even if that was not the case, summary judgment for Macomb
County would still be appropriate because “plaintiff has presented nothing to support his claim that
the alleged constitutional violation occurred because of the execution of Macomb County’s policy
to rely on CMS for its inmate’s medical care. Id., at *8 n.4.
The Hartzell court relied heavily on the Sixth Circuit’s decision in Graham, 358 F.3d at 384.
In Graham, the court stated that “it is not unconstitutional for municipalities and their employees
to rely on medical judgments made by medical professionals responsible for prisoner care.” Id.
(quoting Ronayne v. Ficano, No. 98-1135, 1998 WL 183479, at *3 (6th Cir. Mar. 15, 1998))
(quotation marks omitted). There the plaintiff asserted that Washtenaw County was liable for having
a policy of deferring to the medical decisions of SecureCare, a private company. The court held that
even if Washtenaw’s policy was to defer absolutely to SecureCare employees’ decisions, and even
if that permitted nurses to make medical decisions that Michigan law did not permit them to make,

16

“those alleged defects are insufficient to hold the County liable for the alleged constitutional
violation in this case.” Id. In fact, the Sixth Circuit praised the county’s policy of outsourcing the
medical treatment of prisoners, finding that it allowed for the provision of prompt health care from
on-site professionals and ensured that an independent party was making critical decisions regarding
inmates’ medical needs. Id. As in Graham and Hartzell, the Court holds that Macomb County
cannot be held liable for the actions or omissions of CMS’s staff or its policies. The Court’s analysis
for the remaining claims against Macomb County assumes that they apply only with respect to the
MCJ deputies or corrections officers.
b.

Failure to Train/Supervise

To succeed on a failure to supervise or train claim, the plaintiff must prove that: (1) the
training or supervision was inadequate for the tasks the officer or employee was performing; (2) the
inadequate training resulted from the defendant’s deliberate indifference; (3) the inadequacy caused
the injury. Ellis v. Cleveland Municipal Sch. Dist., 455 F.3d 690, 700 (6th Cir. 2006). “To establish
deliberate indifference, the plaintiff must show prior instances of unconstitutional conduct
demonstrating that the County has ignored a history of abuse and was clearly on notice that the
training in this particular area was deficient and likely to cause injury.” Miller v. Sanilac County,
606 F.3d 240, 255 (6th Cir. 2010) (quotation marks and citations omitted)). Where failure to train
and supervise claims are not couched as part of a pattern of unconstitutional practices, “a
municipality may be held liable only where there is essentially a complete failure to train the police
force, or training that is so reckless or grossly negligent that future police misconduct is almost
inevitable or would properly be characterized as substantially certain to result.” Hays v. Jefferson
County, 668 F.2d 869, 874 (6th Cir. 1982) (internal citations omitted).

17

Plaintiff has not alleged any past instances of unconstitutional conduct. As a result, any
failure-to-train or failure-to-supervise claims against Macomb County fail as a matter of law.
Additionally, as Plaintiff seems to concede in his response, Macomb County provided corrections
officers with training in how to respond to seizures. (Pl.’s Resp. 10; Cleland Dep. 17-21.) Deputy
Cleland testified that he was taught that the primary concern in responding to a seizure is making
sure that the inmate does not hurt himself. (Id. at 19.) While Plaintiff argues that Macomb County
did not appropriately train its officers in the proper restraint (or lack thereof) of an inmate who just
suffered a seizure, it cannot honestly be said that the incompleteness of such training was “so
reckless or grossly negligent” that future misconduct “is almost inevitable or would properly be
characterized as substantially certain to result. See Hays, 668 F.2d at 874. Accordingly,
Defendants are entitled to summary judgment with respect to such claims.
c.

Cleland’s Deliberate Indifference

Even assuming that Plaintiff has established a genuine issue of material fact exists regarding
whether Cleland was deliberately indifferent to Plaintiff’s serious medical needs, such a finding
would not be sufficient to hold Macomb County liable unless Plaintiff establishes that Cleland was
acting in accordance with a specific County policy, practice, or custom which was the “moving
force” behind Plaintiff’s injuries. See Graham, 358 F.3d at 383. Because Plaintiff has made no such
allegations, Macomb County is entitled to summary judgment with respect to this claim.
B.

Deliberate Indifference of the Individual Employees6

6

The Court again notes that Plaintiff has not formally named any of the individuals he
claims were deliberately indifferent to the risk he would have a seizure in his Complaint. At oral
argument the parties and the Court discussed the ramifications of this fact. Defendant Macomb
County’s counsel argued that he did not represent Deputy Cleland because Cleland had not been
served by Plaintiff despite the fact that specific allegations had been levied against him in
18

A state official’s deliberate indifference to a substantial risk of serious harm violates the
Eight Amendment’s prohibition on the wanton infliction of pain as punishment. See Farmer v.
Brennan, 511 U.S. 825, 829 (1994). Deliberate indifference “describes a state of mind more
blameworthy than negligence.” Farmer, 511 U.S. at 835. The test for determining whether an
officer was deliberately indifferent has both a subjective and an objective component. Comstock
v. McCrary, 273 F.3d 693, 702 (6th Cir. 2001).
The objective component is satisfied if the plaintiff alleges that the medical need at issue is
sufficiently serious. Id. at 702-03 (quoting Farmer, 511 U.S. at 834). A serious medical need is
“one that has been diagnosed by a physician as mandating treatment or one that is so obvious that
even a lay person would easily recognize the necessity for a doctor’s attention.” Blackmore v.
Kalamazoo County, 390 F.3d 890, 897 (6th Cir. 2004).
To satisfy the subjective criterion, the plaintiff must demonstrate that “the official being sued

Plaintiff’s response and Cleland had been deposed, and therefore the claims against the
individuals were not properly before the Court. (Mot. for Summ. J. Hr’g Tr. 5-6, May 20, 2011.)
In response, Plaintiff’s counsel stated:
To the extent, Your Honor, we named John Doe Defendants and
identified them in the Complaint as officers or agents of Macomb
County correctional and law enforcement officers or deputies, we
didn’t know Mr. Cleland’s identity at the time we served the
Complaint. I’d ask for leave to amend the Complaint to conform
to the proofs in this case which we have undertaken during
discovery and identified Deputy Cleland as the one who struck and
handcuffed Mr. Fisher after he had a seizure.
(Hr’g Tr. 6.) The Court granted leave to amend stating “[i]f you want to file something after the
hearing, you can[,]” and asked the parties to discuss the individual would-be Defendants’
liability during oral argument. (Id.) Plaintiff still has not amended his Complaint to name the
individual employees as Defendants, so these claims are not technically before the Court. Even
if they were, however, for the following reasons the Court concludes the individual employees
would be entitled to summary judgment.
19

subjectively perceived facts from which to infer substantial risk to the prisoner, that he did in fact
draw the inference, and that he then disregarded that risk.” Comstock, 273 F.3d at 703. It is not
enough for the plaintiff to allege that the officer should have recognized a serious medical risk
existed. See Farmer, 511 U.S. at 838 (“But an official’s failure to alleviate a significant risk that
he should have perceived but did not, while no cause for commendation, cannot under our cases be
condemned as the infliction of punishment.”). The United States Supreme Court has said that
recklessly disregarding a known medical risk satisfies this requirement. Id. at 839-40. Although
the subjective component requires a finding of something more blameworthy than negligence, “it
is satisfied by something less than acts or omissions for the very purpose of causing harm or with
knowledge that harm will result” Id. at 835.
An official “who actually knew of a substantial risk to inmate health or safety may be found
free from liability if they responded reasonably to the risk, even if the harm ultimately was not
averted.” Id. at 844; see also Comstock, 273 F.3d at 706; Harrison v. Ash, Co., 539 F.3d 510, 519
(6th Cir. 2008) (“Oke reasonably responded to Jones’ serious medical needs by contacting the
nursing staff . . . . Consequently, Oke is entitled to qualified immunity.”).
There is no denying that Plaintiff’s seizure disorder satisfies the objective component of the
Farmer test. As a result, the only issue is whether Plaintiff has presented evidence from which a
reasonable jury could infer that Defendants subjectively realized that condition and unreasonably
deliberately disregarded the risks associated with having a seizure disorder. The Sixth Circuit has
instructed that “the subjective component of a deliberate indifference claim must be addressed for
each officer individually.” Phillips v. Roane County, Tenn., 534 F.3d 531, 542 (6th Cir. 2008)
(quoting Garretson v. City of Madison Heights, 407 F.3d 789, 797 (6th Cir. 2005)) (quotation marks

20

and brackets omitted). Plaintiffs may present general allegations, however, to prove that each
individual defendant had the requisite mental state for a deliberate indifference claim. Id.
1.

Nurse Holmes

Nurse Holmes was the intake nurse who performed Plaintiff’s medical screening when he
was first booked at the MCJ on January 10, 2008. During the screening, Plaintiff told Holmes that
he had a seizure disorder and was prescribed two medications daily, Tegretol XR and Keppra. He
also told her that the pharmacy he ordered his medications from was at Costco on Hall Road in
Shelby Township.
In accordance with CMS’s policy, Holmes attempted to verify Plaintiff’s medications by
calling Costco that day and filling out a CMS/Macomb County Jail Medication Confirmation Form.
(CMS’s Br. Ex. A, MCJ Records, at 176.) After speaking with Costco, Holmes determined that
Plaintiff had been prescribed Tegretol and Keppra but that he had not filled his prescription for
Tegretol since October 26, 2007 or for Keppra since July 26, 2007. (Id.) Records obtained from
Costco confirmed that Plaintiff received 30 days’ worth of Keppra on July 26, 2007 and 12 days’
worth of Tegretol on October 26, 2007. (CMS’s Br. Ex. B.) Although Plaintiff’s doctor had
prescribed two refills for the Tegretol prescription, Plaintiff did not pick up Tegretol from Costco
again until November 19, 2008. (Id.) Because Holmes determined that Plaintiff would have run out
of both medications well before January 10, 2008 had he been taking them as prescribed, she
concluded that under CMS’s policy Plaintiff’s prescriptions were not current. (Holmes Dep. 23:2224:20.) Accordingly, she conferred with Dr. Bedia, who instructed her to place Plaintiff on the
clinic call list to see him the next day. (Id. at 25:18-26:20.) Additionally, Holmes ordered Plaintiff
to be placed on a lower bunk – a standard procedure for inmates at risk of having a seizure. (Id. at

21

19:7-20.)
Holmes admitted that she did not put down that Plaintiff suffered from a seizure disorder on
his intake chart, despite the fact that she ordered the lower bunk and physician referral. (Id. at
26:20-24.) Furthermore, she did not go back into Plaintiff’s medical records from the MCJ even
though she checked the box indicating that Plaintiff had been incarcerated at the MCJ before, nor
did she attempt to find out whether Plaintiff had been hoarding medication or going to another
pharmacy to fill his prescriptions.7 (Id. at 25:9-15, 30:15-18.)
The Court finds that, at worst, Plaintiff’s allegations with respect to Nurse Holmes amount
to negligence and, therefore, cannot support a claim for deliberate indifference. Although Plaintiff’s
neurologist Dr. Belkin stated in his affidavit that the prescriptions he wrote for Plaintiff were valid
through February 2008, (Belkin Aff. ¶ 8), there was no way for Holmes to know that. There is no
evidence that Plaintiff gave Holmes Dr. Belkin’s contact information, and even if he did Holmes’
failure to follow up would only constitute negligence (or possibly medical malpractice).
Ultimately, even though it can be argued that Plaintiff faced a serious medical risk if he did
not receive his medications and that Holmes was aware of this risk, the Court holds she would be
entitled to summary judgment had she been a named Defendant because she responded reasonably
to Plaintiff’s risk. She attempted to verify that Plaintiff’s medications were current. When she could
not do so, she contacted Dr. Bedia (a step, the Court notes, she would have taken regardless), who
instructed her to place Plaintiff on his clinic list so he could evaluate Plaintiff the next day. Even

7

Plaintiff testified that he likes to get his medications as soon as possible so that he can
stock up in order to avoid running out like that one time in November of 2002 or 2003. (Fisher
Dep. 134:7-11.) However, there is no evidence that he relayed this information to Nurse
Holmes.
22

assuming arguendo that Holmes was negligent in performing Plaintiff’s medical screen or verifying
his prescriptions, Plaintiff’s deliberate indifference claims against Holmes fail as a matter of law.
2.

Dr. Bedia

After instructing Holmes to place Plaintiff on the clinic call for the next day after she was
unable to verify Plaintiff’s prescriptions for Tegretol and Keppra were current, Dr. Bedia examined
Plaintiff on January 11, 2008 at 1:40 p.m. When Dr. Bedia filled out the “Chronic Care Clinic
Documentation” form (CMS’s Ex. A, at 171-73) at 1:48 pm, he indicated that Plaintiff had a seizure
disorder and prescribed Tegretol and Keppra while checking the “continue current therapy” box
under the section titled “Plan.” (Id. at 36:12-39:5.) The doctor testified that someone who is
prescribed Tegretol and Keppra must take them everyday. (Id. at 48:8-11.) He further stated that
it would be possible, but not certain, for a person to get a seizure for missing one or two days of their
medication. (Id. at 52:20-53:4.) Dr. Bedia testified that he did not think it was necessary to make
sure Plaintiff was given his medications immediately on January 11, however, because he did not
seem like he was having a problem. (Id. at 41:12-19.) Plaintiff’s vital signs were stable, and there
were no indications of an aura – a sign of an impending seizure. (Id.) As a result, Plaintiff was
scheduled to first receive his medication during the next medication pass at 10:00 p.m. that night.
Plaintiff suffered a seizure sometime around 8:15 p.m. that evening.
Although it appears that Dr. Bedia was negligent in not providing Plaintiff with his
medication earlier, the Court holds that his actions cannot support a claim for deliberate indifference.
Indeed, the facts presented make it clear that Dr. Bedia did not disregard the risk that Plaintiff would
suffer a seizure. When Plaintiff’s medications could not be verified as current, Dr. Bedia scheduled
to evaluate Plaintiff the next day and ordered the medications Plaintiff sought. Although Plaintiff

23

claims that Dr. Bedia acted with deliberate indifference to the risk that he might have a seizure
before receiving his medication at 10:00 p.m, the evidence shows that he was not indifferent to this
risk. He testified that he did not think he needed the medication immediately because he was not
exhibiting any signs that a seizure was imminent. (Bedia Dep. 41:12-19.) Plaintiff’s vital signs
were stable, and there were no signs of an aura. (Id.) Accordingly, although Dr. Bedia’s actions
ultimately did not prevent Plaintiff’s seizure, and perhaps even constituted medical malpractice, they
do not allow a reasonable jury to infer that he was deliberately indifferent to Plaintiff’s serious
medical needs. See Graham, 358 F.3d at 385 (“[W]here 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.”)
(quoting Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976)) (quotation marks omitted).
3.

Deputy Cleland

Plaintiff claims that Deputy Cleland was deliberately indifferent to Plaintiff’s serious medical
needs because Cleland knew Plaintiff was suffering or had just suffered a seizure; he knew from his
training that seizure victims are at risk of hurting themselves due to their involuntary movements;
and he “disregarded that risk by striking Mr. Fisher and placing him in steel handcuffs.” (Pl.’s Resp.
11-12.) For the following reasons, the Court finds that no reasonable jury could find that Cleland
was deliberately indifferent to Plaintiff’s serious medical needs.
Although Cleland admitted that he was responding to a seizure, Cleland testified that when
he arrived he did not believe that Plaintiff was experiencing a seizure. (Cleland Dep. 28:7-9.)
Cleland stated that he had seen others suffer from seizures in the past, and that in his experience he
did not believe that Plaintiff was currently seizing when he got to D-block. (Id. at 28:7-29:5.) Even

24

if Cleland should have realized that Plaintiff was having a seizure, Cleland could not be deliberately
indifferent to the serious medical risk of restraining someone having a seizure in handcuffs when
he did not think Plaintiff was having a seizure. Accordingly, even though Cleland is not a named
Defendant, if he were, he would be entitled to summary judgment.
C.

Gross Negligence

In his Complaint, Plaintiff accuses all Defendants of being grossly negligent but fails to
identify which allegations he associates with which Defendants. Among Plaintiff’s claims are
accusations that Defendants failed to become “competently and adequately trained, educated and
supervised” with respect to treating persons suffering from epilepsy; failing to provide Plaintiff with
his seizure medications; and failing to provide Plaintiff with proper medical care during and after
an epileptic seizure. (Compl. ¶ 69.) Plaintiff also alleges that Defendants were negligent in failing
to recognize he was having a seizure and “[a]llowing Macomb County deputies, officers and other
defendant personnel to violently attack [Plaintiff] during his epileptic seizure.” (Id. ¶ 70.) Because
Defendants’ responses to these claims are different for Defendant Wayne County and Defendant
CMS, their arguments will be addressed separately.
1.

CMS

CMS argues that Plaintiff’s gross negligence claims should be dismissed because such claims
are really medical malpractice claims and Plaintiff has not met Michigan’s mandatory filing
requirements. (CMS’s Br. 21.) Michigan law imposes certain statutory requirements upon plaintiffs
bringing medical malpractice claims. See Mich. Comp. Laws § 600.2912. “A complaint cannot
avoid the application of the procedural requirements of a malpractice action by couching its cause
of action in terms of ordinary negligence.” Dorris v. Detroit Osteopathic Hosp. Corp., 460 Mich.

25

26, 43 (1999) (quoting McLeod v. Plymouth Court Nursing Home, 957 F. Supp. 113, 115 (E.D.
Mich. 1997)) (quotation marks omitted). Plaintiff concedes that he has not complied with these
requirements but argues that they do not apply because his claims sound in negligence, not
malpractice. (Pl.’s Resp. 16.) The Court agrees with CMS, and holds that Plaintiff’s gross
negligence claims against CMS, Dr. Bedia, and Nurse Holmes sound in medical malpractice.
Accordingly, they must be dismissed due to Plaintiff’s admitted failure to satisfy Mich. Comp. Laws
§ 600.2912.
There are two aspects that distinguish medical malpractice claims. Bryant v. Oakpointe Villa
Nursing Ctr., Inc., 471 Mich. 411, 422 (2004). First, medical malpractice can only arise “within the
course of a professional relationship.” Id. (quoting Dorris, 460 Mich. at 45). The Michigan
Supreme Court has defined a professional relationship as one in which “a licensed health care
professional, licensed health care facility, or the agents or employees of a licensed health care
facility, were subject to a contractual duty that required that professional, that facility, or the agents
or employees of that facility, to render professional health care services to the plaintiff.” Id.
Second, a medical malpractice claims necessarily “raise questions involving medical
judgment.” Id. (quoting Dorris, 460 Mich. at 45). “If the reasonableness of the health care
professionals’ action can be evaluated by lay jurors, on the basis of their common knowledge and
experience, it is ordinary negligence.” Id. at 423. If, however, “the reasonableness of the action can
be evaluated by a jury only after having been presented the standards of care pertaining to the
medical issue before the jury explained by experts, a medical malpractice claim is involved.” Id.
Allegations regarding staffing decisions and patient monitoring often involve questions of
professional medical management that are not considered matters jurors can judge by their common

26

knowledge and experience. Id. at 426 (quoting Dorris, 460 Mich. at 46).
However, not all matters in this area require expert testimony. For example, a claim that the
defendants did nothing in response to a known risk could be evaluated based on common experience
if it was clear that something should have been done. Id. at 430 (holding that plaintiff’s claim that
defendants did nothing to rectify risk of decedent asphyxiating herself between bed rails and bedding
after they found her tangled the day before she died was a claim sounding in negligence). While
cases differentiating between medical malpractice and negligence claims often involve hospitals or
nursing homes, this analysis for distinguishing such claims has also been applied to allegations of
gross negligence by corrections officers. See, e.g., Valarie v. Mich. Dep’t of Corr., No. 2:07-cv-5,
2009 WL 2232684, at *21 (W.D. Mich. July 22, 2009).
In Hartzell v. City of Warren, No. 252458, 2005 WL 1106360 (Mich. App. May 10, 2005),
the Michigan Court of Appeals held that the plaintiff’s claim that CMS, Dr. Bedia, and another CMS
nurse negligently treated him when he was incarcerated at the MCJ sounded in medical malpractice
and not negligence. Id., at *10. In Hartzell, the incarcerated plaintiff had a history of hypertension
and had recently had a craniotomy. Id. The court found that lay jurors would not know what the
appropriate treatment for such an inmate would be without the aid of expert testimony. Id. In
overturning the trial court’s decision, the Hartzell court held that “[b]ecause expert testimony would
be needed to establish the standard of care required by a hospital and its employees, the claims
brought by plaintiff are claims of medical malpractice.” Id.
Plaintiff argues that Holmes, Dr. Bedia, and CMS’s decision to deny him his medications
after they confirmed he had a prescription for them “is not one that requires a specialized degree of
training that is typically held by medical professionals.” (Pl.’s Resp. 17.) Plaintiff attempts to

27

characterize these Defendants’ actions as simply “administrative function[s]” that are within the
common knowledge and experience of the jury. (Id.) The Court, however, disagrees.
To begin with, Valarie and Hartzell demonstrate that CMS and its staff have a professional
relationship with inmates at the MCJ. Accordingly, the only question the Court must answer is
whether jurors could evaluate Defendants’ actions without reference to expert testimony. The Court
holds that they could not. First off, the Court notes that with respect to the issue of causation both
parties have already submitted affidavits of medical experts, Dr. Belkin for Plaintiff and Dr.
Leutcher for Defendants. (Pl.’s Resp. Ex. 2; CMS’s Br. Ex. K.) These experts offer conflicting
opinions regarding whether Plaintiff’s recorded Tegretol levels indicate that Defendants’ failure to
provide Plaintiff with his medications caused Plaintiff’s seizure, or whether it would have likely
occurred either way. (Id.)
While this fact alone would preclude the Court from finding that Plaintiff’s claims are
properly characterized as gross negligence, other factors evidence that the allegations sound in
medical malpractice. For example, Plaintiff claims it was grossly negligent to allow the MCJ
deputies to restrain Plaintiff while he was having a seizure. (Compl. ¶ 70.) While it may be within
the jury’s knowledge to know that someone having a seizure should not be put in handcuffs,
Defendants deny that Plaintiff was experiencing a seizure when they arrived. (Cleland Dep. 28:7-9;
Busby Dep. 25:17-28:24.) Defendant would need to provide expert medical testimony regarding
what constitutes a seizure, what symptoms someone having a seizure would exhibit, and how to
account for any discrepancies between Defendants’ account of how Plaintiff acted during the alleged
seizure and traditional behavior of a seizure victim. Accordingly, the Court finds that Plaintiff’s
claims for gross negligence against CMS, Dr. Bedia, and Nurse Holmes are actually medical

28

malpractice claims. As a result, Defendants are entitled to summary judgment because Plaintiff has
admitted that he failed to comply with Michigan’s statutory requirements for medical malpractice
claims.
2.

Macomb County

Defendant Macomb County argues that it is immune from liability for Plaintiff’s state law
claims under the Government Tort Liability Act (“GTLA”), Mich. Comp. Laws § 691.1407
(“Section 7"). (Macomb’s Br. 14.) In the GTLA, the Legislature clearly stated, “[e]xcept as
otherwise provided in this act, a governmental agency is immune from tort liability if [it] is engaged
in the exercise or discharge of a governmental function.” Mack v. City of Detroit, 467 Mich. 186,
195 (2002) (quoting §1407(1)). As a result, an agency is immune unless the GTLA specifically
permits a civil suit by citizens. Id. In Mack, the Michigan Supreme Court identified five exceptions
to governmental immunity for an agency. Id. at 195 n.8. They are the “highway exception,” Mich.
Comp. Laws § 691.1405; the “motor vehicle exception,”§ 1405; the “public building exception,”
§ 1406; the “proprietary function exception,” § 1413; and the “governmental hospital exception,”
§ 1407(4). Id. The Legislature has also codified one other exception, the “sewage disposal system
event exception.” § 1416.
The plaintiff must plead facts in avoidance of governmental immunity. Mack, 467 Mich. at
204. Plaintiffs can accomplish this “by stating a claim that fits within a statutory exception or by
pleading facts that demonstrate that the alleged tort occurred during the exercise or discharge of a
non-governmental or proprietary function. Id. A “governmental function” is anything that is
expressly or impliedly authorized by state law. Id. (quoting Mich. Comp. Laws § 691.1401(f)). In
Mack, the court held that the management and operation of a police department was a well-

29

established government function. Id. Similarly, operating a jail is a government function. As a
result, because Plaintiff has not alleged that his claims fall within one of the statutory exceptions,
the Court finds that Macomb County is immune from Plaintiff’s state-law claims.
D.

Assault and Battery

Plaintiff claims that all Defendants, with the exception of CMS, assaulted him. (Count IV.)
Specifically, Plaintiff alleges that “[w]ith the tacit approval of Defendants Macomb County and the
Sheriff’s Department, John Doe Defendants deliberately and intentionally attacked, battered and
assaulted Mr. Fisher while Mr. Fisher suffered a highly traumatic epileptic seizure.” (Compl. ¶ 73.)
Because Plaintiff has dismissed all claims against the Sheriff’s Department and Sheriff Hackel, and
because the Court has already held that Macomb County is immune from Plaintiff’s state-law
claims, all that is left of this Count is Plaintiff’s claims against the John Doe Defendants. Because
neither Macomb County or CMS’s motions addressed this claim on behalf of the John Doe
Defendants, it is not now before the Court. To the extent that Plaintiff seeks to pursue this claim
against Cleland, the Court reiterates that he has not been named in the Complaint or served by
Plaintiff and therefore is not a party to this lawsuit. See supra note 6.
E.

Intentional Infliction of Emotional Distress

To establish a claim for intentional infliction of emotional distress (“IIED”), the plaintiff
must prove: (1) extreme and outrageous conduct; (2) intent or recklessness; (3) causation; and (4)
severe emotional distress.” The Detroit News, Inc. v. Duran, 200 Mich. App. 622, 629-30 (1993)
(citing Roberts v. Auto-Owners Ins. Co., 422 Mich. 594, 602 (1985)). “The trial court must
determine as a matter of law whether the defendant’s conduct was so extreme and outrageous to
withstand a motion for summary disposition.” Id. Liability will only be found when the defendant’s

30

conduct is so outrageous and extreme that it goes beyond all bounds of decency and is “to be
regarded as atrocious and utterly intolerable in a civilized community.” Doe v. Mills, 212 Mich.
App. 73, 91 (1995) (citing Linebaugh v. Sheraton Mich. Corp., 198 Mich. App. 335, 342 (1993)).
The conduct must make the average member of the community exclaim “Outrageous!” when
described to her. Id.; see also Roberts, 422 Mich. At 603.
In Garretson, the Sixth Circuit held that the plaintiff’s allegations that police officers denied
her insulin which resulted in her being hospitalized and treated for diabetic ketoacidosis the next day
were insufficient to sustain a claim of IIED. 407 F.3d at 799. The court stated “Garretson has not
offered proof that the officers intended to subject her to emotional distress by specifically denying
her medical treatment. Nor has she shown that by allegedly neglecting her medical care, officers
would expect her to experience emotional distress.” Id. (emphasis in original).
In the instant case, Defendants’ conduct was even less outrageous than that of the defendants
in Garretson. Whereas in that case the officers allegedly did nothing upon learning that the plaintiff
was a diabetic, here it is clear that Defendants did not ignore Plaintiff’s request for his seizure
medications. Although he ultimately did not receive them as quickly as he needed them, that was
because Holmes believed that he did not have a current prescription for them and Dr. Bedia did not
believe he was at risk of having a seizure immediately on January 11, 2008 at 1:40 p.m. Although
Holmes may have been negligent in her execution of CMS’s verification policy, her actions do not
amount to the type of outrageous conduct necessary to establish an IIED claim. The same is true
for Dr. Bedia’s conduct. Accordingly, the Court grants Defendants’ motion for summary judgment
with respect to Plaintiff’s claims for IIED.

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IV.

Conclusion
For the reasons stated above, the Court GRANTS Defendants’ motions for summary

judgment in their entirety.
SO ORDERED.

S/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: June 14, 2011
CERTIFICATE OF SERVICE
Copies of this Order were served on the attorneys of record by electronic means or U.S. Mail on
June 14, 2011.

S/Denise Goodine
Case Manager

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