Kindl v. Berkley, City of et al

Filing 41

OPINION and ORDER denying 29 MOTION for Summary Judgment and granting in part 28 MOTION for Summary Judgment Signed by District Judge Bernard A. Friedman. (CMul)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KATIE KINDL,
Plaintiff,
vs.

Civil Action No. 12-CV-13410
HON. BERNARD A. FRIEDMAN

CITY OF BERKLEY, et al.,
Defendants.
_______________________/
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT and
DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
This matter is presently before the Court on plaintiff’s motion for partial summary
judgment [docket entry 28] and defendants’ motion for summary judgment [docket entry 29].
Response and reply briefs have been filed as to each motion. Pursuant to E.D. Mich. LR 7.1(f)(2),
the Court shall decide these motions without a hearing.
Plaintiff Katie Kindl has brought this action as the personal representative for the
estate of her mother, Lisa Kindl, who died on July 13, 2010, of alcohol withdrawal while in the
custody of the City of Berkley police department. The essence of the complaint is that the defendant
police officers knew or should have known that the decedent was suffering from alcohol withdrawal
but failed to provide her with medical care, and that the city failed to train its officers to recognize
alcohol withdrawal in detainees and to respond appropriately. Plaintiff asserts (1) a Fourteenth
Amendment claim against the individual defendants for being deliberately indifferent to decedent’s
serious medical needs, and (2) state-law claims against the individuals for negligence, infliction of
emotional distress, wrongful death, and violation of the Michigan Constitution. She also asserts (1)
Fourteenth Amendment claims against the City of Berkley and its department of public safety and

police department1 for failing to train and supervise its officers and for failing to implement policies
and procedures regarding the appropriate handling of detainees with alcohol withdrawal, and (2) the
above-mentioned state-law claims against these defendants under respondeat superior.
Except where indicated below, the facts of this case are largely undisputed. On July
12, 2012, decedent was arrested when she reported to her Berkley probation officer and tested
positive (0.05) for having consumed alcohol, in violation of the terms of her probation. A state
district judge ordered that decedent be held in custody until a hearing the next day. The lawfulness
of her arrest and detention are not in question. Defendant Dzendzel arrested decedent at 9:30 a.m.
and took her to the lock-up at the Berkley police department. The desk officer, defendant Geary,
asked decedent as part of the booking process if she had any of the medical problems (including
alcohol withdrawal) listed on the department’s Medical and Insurance Fact Sheet. See Defs.’ Ex.
B (Pg ID 379). Decedent told Geary she had none of these medical problems. Geary Dep. at 11.
Before the booking process was finished, while she was signing the property sheet, decedent told
Geary “that she may be going through alcohol withdrawal later . . . .” Id. at 12, 14, 29. Geary
passed on this information to Dzendzel. Id. at 12-13. Geary placed decedent in a cell, gave her food
at 4:20 p.m., and believed she “appeared to be in good health” through the end of his shift at 7:00
p.m. Id. at 14. At shift change, Geary informed the next desk officer about decedent’s statement
regarding possible alcohol withdrawal. Id. Geary does not recall decedent seeking his attention,

1

In their motion for summary judgment, defendants correctly note that the public safety
and police departments have no capacity to be sued because they are not entities separate from
the city. See, e.g., Haverstick Enters., Inc. v. Fin. Fed. Credit, Inc., 32 F.3d 989, 992 n.1 (6th
Cir. 1994); Moomey v. City of Holland, 490 F. Supp. 188, 189 (W.D. Mich. 1980). Plaintiff
offers no argument to the contrary. The Court shall therefore grant summary judgment for the
Berkley Police Department and the Berkley Department of Public Safety.
2

and he watched her throughout his shift both on a video monitor and by looking through the cell
window. Id. at 15, 30. Geary “never noticed anything physically wrong with her. She never
appeared to have any signs of any type of illness. She never indicated to me at all that she was
feeling ill after the initial statement where she said she may be going through something later.” Id.
at 17.
When Geary told Dzendzel about decedent’s statement regarding possible alcohol
withdrawal, Dzendzel told Geary to “keep an eye on her.” Dzendzel Dep. at 26. Dzendzel’s only
other contact with decedent occurred from 4:10 p.m. to 5:00 p.m. when he relieved the dispatcher.
2

Id. at 47. He monitored decedent and saw nothing unusual about her. Id. at 48. Dzendzel’s shift

ended at 7:00 p.m. Id. at 26.
At 7:00 p.m., defendant Herriman came on duty as the desk officer and defendant
Moschelli came on duty as the dispatcher. Herriman Dep. at 11, 20. At approximately 8:00 p.m.
decedent stood up and pounded on the cell window.3 According to Herriman,
She stated that she had urinated on herself. She stated that she
thought she may go through DTs at some point during the night. I
asked Dispatcher Moschelli to ask her what she needed and if she
needed medical attention. She declined medical attention. Stated that
she only wanted us to keep an eye on her and that was the end of our
communication.
Id. at 20. Herriman “wanted to clarify that at that time she did not need medical attention, which

2

The dispatcher and desk officer sit next to each other in an area across the hall from the
lock-up. See Defs.’ Ex. E (photos of lock-up).
3

In their written statements, Moschelli and Herriman both indicated this occurred at
11:00 or 11:30 p.m. See Defs.’ Ex. F (Pg ID 429) and Ex. G (Pg ID 473). However, plaintiff’s
and defense counsel agree that this actually occurred, according to the videotape, at
approximately 8:00 p.m. See Defs.’ Summ. J. Br. at 3; Pl.’s Resp. Br. at 2.
3

she did clarify.” Id. at 21. Thereafter, Herriman watched decedent frequently on the monitor and
also by looking through the cell window and he “didn’t observe anything abnormal that would cause
me concern.” Id. at 35-36, 74, 80. Moschelli testified that this was decedent’s first and only attempt
at communication. Moschelli Dep. at 24. After speaking with decedent, who used a “normal tone,”
Moschelli “watched for any problems” and turned on the intercom to decedent’s cell so that he and
the desk officer could hear anything occurring in that cell. Id. at 28, 53. Moschelli testified that
decedent did not attempt to communicate with the officers again, and Moschelli saw no signs she
was in distress. Id. at 32, 61, 63-65, 70.
An inmate in the adjacent cell gives a different account of this evening’s events.
Michael McClanahan testified as follows:
A. [E]very time I looked over there, just about, she was walking
around looking up or making a motion.
Q. At the camera?
A. Yeah.
Q. Did it appear to you that she was trying to get attention or
assistance?
A. Yes.
Q. Did anyone ever come to help her?
A. No.
Q. And over what period of time did this happen when she was trying
to get somebody to help her?
A. . . . I want to say somewhere between 8 and 11, I guess. . . .
Q. But the period of time, was it a two-hour period of time? An hour –
A. Yeah, something like that.
Q. So during the two-hour period of time, she had been trying to get
attention by waving at the camera?
A. Well, yeah. She said a few things. I could hear her making noises
like moans and stuff.
Q. She was moaning? You have to speak verbal.
A. Yeah. It sounded to me like she was moaning. I know she was
sick. You could tell that by looking at her.
Q. How could you tell?
A. She had this shock. I don’t know. Almost a clammy look. . . . She
was just no expression.
4

* * *
A. But I know she was trying to get somebody to look, somebody’s
attention. She really tried to get somebody’s attention.
Q. By doing what?
A. Waving at the camera and hollering. Not holler hollering, but she
just – right there at the end, I couldn’t hardly hear her. It just sounded
like she said help me. And I think shortly after that she probably just
went over there and laid down. . . .
*

*

*

Q. During that period of time, you didn’t hear anybody respond to her
or come to her cell or anything?
A. No. . . .
*

*

*

Q. From your testimony, she was trying to get help for approximately
two hours and no one came to her assistance; it that correct?
A. Seemed to me. Or longer.
*

*

*

Q. Did you feel, from your observing her, that she was in distress?
A. She was in distress, but I didn’t know, you know, that she would
be deceased the next day.
*

*

*

Q. When she would look up at the camera and talk, what would she
say?
A. Hello, hey, need some help, help. Best I could hear. Best I could
remember.
McClanahan Dep. at 8-11, 50-51. He testified he heard decedent moan once for a few seconds and
then, “[a] little bit later,” again for a few seconds. Id. 32-33. McClanahan also indicated he once
saw decedent “bending over a little bit, holding her mid section.” Id. 33.
Another detainee at the Berkley lock-up, Andre Henry, testified that he
A. . . . just heard some – some female. She kept on screaming,
5

yelling.
Q. Okay.
A. First time she just said help me, and then after that she kept on
saying I need to see somebody. I need to see somebody.
*

*

*

Q. All right. And how long did you hear this person calling?
A. It was about 15, 20 minutes, because I was – that’s about the time
they took to book me in, take by fingerprints and stuff.
Q. Did anyone to your knowledge go back and assist her or help her?
A. Not to my knowledge, no. I didn’t see anyone.
*

*

*

Q. Okay. So she was calling for about 15 minutes you said?
A. About 15, yeah.
Q. And what was the tone of her voice?
A. I mean, it – it sounded like she was in distress, like she needed
some help.
Q. Okay.
A. Like she was in pain.
Q. Okay. And –
A. Because she started crying.
Q. She was crying?
A. Yes.
Q. Okay. Did any of the officers make any comments about her?
A. They just said she was a bug.
Henry Dep. at 7-9.
From 1:30 to 3:00 a.m. defendant Miller relieved Herriman as desk officer. During
this time, Miller looked into decedent’s cell and she appeared to be sleeping. Miller Dep. at 39.
Miller noticed nothing unusual. Id. At 2:30 or 3:00 a.m. defendant Arney relieved Miller as desk
officer. He looked at decedent through the cell window and she appeared to be sleeping on the
bench. Arney Dep. at 33.
In his written statement, Herriman indicates that he and Arney both checked on
decedent at 2:45 and 4:30 a.m. See Defs.’ Ex. G (Pg ID 473). At 2:45 a.m. decedent “showed
6

movement consistent with breathing and appeared normal.” Id. At 4:30 a.m. decedent “ha[d] a
flushed face consistent with a heavy drinker which appeared to coincide with Kindl’s statement
about alcohol withdrawal. At the time I did not observe any signs of trouble with Kindl.” Id. When
Herriman and Arney checked on decedent at 6:05 a.m., her face and arm were purple and she was
unresponsive. Decedent was taken by ambulance to the hospital where she was pronounced dead
at 6:25 a.m. See Defs.’ Ex. H. The county medical examiner, who performed an autopsy,
determined the cause of death to be “alcohol and benzodiazepine withdrawal and complications.”
Id. The time of death is unknown. Id.
The only other officers who had contact with decedent were defendant Gabriel, who
brought her food at approximately 9:15 p.m. and noticed nothing unusual about her appearance or
behavior; and defendant Penn, who worked as the dispatcher until 7 p.m. on the day decedent was
placed in the cell and saw her frequently in the monitor, and she noticed nothing unusual in her
appearance or behavior. See Gabriel Dep. at 10, 37; Penn Dep. at 20, 30, 32. A video recording of
decedent’s cell showed decedent’s left arm and left leg shaking for approximately 40 seconds from
11:53 to 11:54 p.m. See Pl.’s Resp. Br. Ex. D (Pg ID 1326). One of plaintiff’s experts, Dr. Werner
Spitz, M.D., testified that the evidence is consistent with decedent dying at that time. Spitz Dep. at
32.
Motions for Summary Judgment
Defendants seek summary judgment on all of plaintiff’s claims. Plaintiff seeks
summary judgment on her failure-to-train claim. Under Fed. R. Civ. P. 56(a), summary judgment
is appropriate “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.” “[T]he mere existence of some alleged factual

7

dispute between the parties will not defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine dispute as to any material fact.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). Viewing the evidence
in the light most favorable to the opposing party, summary judgment may be granted only if the
evidence is so one-sided that a reasonable fact-finder could not find for the opposing party. See
Anderson, 477 U.S. at 248-50; Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478-80 (6th Cir.
1989). In other words, “[a] material issue of fact exists where a reasonable jury, viewing the
evidence in the light most favorable to the non-moving party, could return a verdict for that party.”
Vollrath v. Georgia-Pacific Corp., 899 F.2d 533, 534 (6th Cir. 1990). “The pivotal question is
whether the party bearing the burden of proof has presented a jury question as to each element of
its case.” Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996).
Before addressing the parties’ arguments regarding the specific claims, the Court
notes that plaintiff appears to have abandoned her case as to several of the individual defendants.
The complaint names 15 individual defendants. On October 23, 2012, plaintiff stipulated to the
dismissal of the complaint as to four of them (Laity, Onesko, Tanghe and Pinkos). In their motion
for summary judgment, defendants argue that none of the remaining 11 individuals are liable. In
her response brief, plaintiff argues that the case should proceed as to five of them (Dzendzel, Geary,
Eshman, Herriman and Moschelli), but she makes no mention of the other six (Hadfield, Arney,
Miller, Robinson, Penn and Gabriel), presumably because these six had little or no interaction with
decedent.4 Because plaintiff does not oppose the motion as to these six, and has made no effort to

4

As noted above, Miller’s and Arney’s only involvement was that they looked into the
cell and saw, they believed, decedent sleeping during the early morning hours of July 13.
Gabriel brought decedent food the preceding evening at approximately 9:15 p.m. and noticed
8

demonstrate the existence of any genuine issues of material fact as to them, the Court shall grant
summary judgment for these defendants on this basis. Accordingly, the Court shall analyze the
parties’ arguments only as to defendants Dzendzel, Geary, Eshman, Herriman, Moschelli and the
City of Berkley.
A. The Federal Claims
Plaintiff’s federal claim as to the individual defendants is that they were deliberately
indifferent to decedent’s serious medical needs, in violation of the Fourteenth Amendment. The
legal standards governing a case such as this were recently summarized by the Sixth Circuit as
follows:
It has long been established that, under the Eighth
Amendment’s prohibition against cruel and unusual punishment,
prisoners have a constitutional right to medical care. Estelle v.
Gamble, 429 U.S. 97, 103–04, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976).
This determination of a “sufficiently serious medical need is
predicated upon the inmate demonstrating that he or she is
incarcerated under conditions imposing a substantial risk of serious
harm.” Miller v. Calhoun Cnty., 408 F.3d 803, 812 (6th Cir. 2005)
(internal quotation marks omitted). Additionally, “‘[t]he due process
rights of a [pre-trial detainee] are at least as great as the Eighth
Amendment protections available to a convicted prisoner.’” Phillips
v. Roane Cnty., 534 F.3d 531, 539 (6th Cir. 2008) (quoting City of
Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244, 103 S.Ct. 2979, 77
L.Ed.2d 605 (1983)); see also Estate of Carter v. City of Detroit, 408
F.3d 305, 311 (6th Cir. 2005).
While this right to medical care does not impose an
affirmative duty on the government to screen detainees for all
possible ailments, this court has “long held that prison officials who
have been alerted to a prisoner’s serious medical needs are under an
obligation to offer medical care to such a prisoner.” Comstock, 273

nothing unusual. Penn was the dispatcher during the day shift on July 12 and noticed nothing
unusual. Hadfield and Robinson, according to an internal investigation conducted by Sgt. Crum
into this incident, apparently had no contact with decedent until after she had died. See Pl.’s Ex.
D (Pg ID 1325).
9

F.3d at 702 (emphasis added). “If a prisoner asks for and needs
medical care, it must be supplied.” Danese v. Asman, 875 F.2d 1239,
1244 (6th Cir. 1989). Failure to provide medical treatment when
circumstances clearly evince a need amounts to a deprivation of
constitutional due process. Dominguez, 555 F.3d at 552.
“For the failure to provide medical treatment to constitute a
constitutional violation, [the plaintiff] must show that the defendants
acted with ‘deliberate indifference to serious medical needs.’” Id. at
550 (quoting Estelle, 429 U.S. at 104, 97 S.Ct. 285). The test for
deliberate indifference to a medical need is both objective and
subjective. “The objective component requires a showing that the
alleged deprivation is sufficiently serious—that [the detainee] was
incarcerated under conditions posing a substantial risk of serious
harm.” Garretson v. City of Madison Heights, 407 F.3d 789, 796–97
(6th Cir. 2005) (internal quotation marks omitted). Furthermore, the
risk must be “one which society deems so grave that it violates
contemporary standards of decency to expose anyone unwillingly to
such a risk.” Talal v. White, 403 F.3d 423, 426 (6th Cir. 2005)
(internal quotation marks omitted). To satisfy the subjective
component, the plaintiff must demonstrate that the defendant
possessed “a sufficiently culpable state of mind in denying medical
care.” Estate of Carter, 408 F.3d at 311 (internal quotation marks
omitted). This is the equivalent of showing that the “authorities knew
of, and manifested deliberate indifference to, [the detainee’s] serious
medical needs.” Talal, 403 F.3d at 426.
*

*

*

The subjective component requires that the facts alleged by
the plaintiff, if true, show that the official “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 (citing Farmer, 511 U.S. at 837, 114 S.Ct.
1970). At the same time, while officials may not deliberately
disregard a medical need, “[m]edical malpractice does not become a
constitutional violation merely because the victim is a prisoner.”
Estelle, 429 U.S. at 106, 97 S.Ct. 285. Specifically, “if the officers
failed to act in the face of an obvious risk of which they should have
known but did not, then they did not violate the Fourteenth
Amendment.” Garretson, 407 F.3d at 797. Inadvertent failure or
negligence in providing medical care does not rise to the level of a
constitutional deprivation, as deliberate indifference “describes a
state of mind more blameworthy than negligence.” Farmer, 511 U.S.
at 835, 114 S.Ct. 1970.
10

Nevertheless, a plaintiff is not required to show that the
official acted “for the very purpose of causing harm or with
knowledge that harm will result.” Ibid. Liability can be imposed “if
he knows that inmates face a substantial risk of serious harm and
disregards that risk by failing to take reasonable measures to abate
it.” Id. at 847, 114 S.Ct. 1970 (emphasis added).
Stefan v. Olson, 497 F. App’x 568, 576-78 (6th Cir. 2012). “The liability of each individual
defendant must be analyzed separately.” Smith v. County of Lenawee, 505 F. App’x 526, 530 (6th
Cir. 2012).
In the present case, the Court shall assume that decedent had a serious medical need
while she was in defendants’ custody. The autopsy report confirms that she died of alcohol
withdrawal less than 24 hours after being arrested. One of plaintiff’s experts, Dr. Werner Spitz,
M.D., testified that decedent died of DT (delirium tremens), a stage of alcohol withdrawal. See Pl.’s
Ex. C. Defendant Eshman, the director of public safety for the City of Berkley, testified that alcohol
withdrawal is a potentially serious medical condition that can require hospitalization and even result
in death. Eshman Dep. at 49-51, 65. The National Institutes of Health described delirium tremens
as “a severe form of alcohol withdrawal that involves sudden and severe mental or nervous system
changes” which “is serious and may be life threatening.” Pl.’s Ex. A. The Sixth Circuit has
“recognized that delirium tremens constitutes a serious medical need, as have other circuits.” Bertl
v. City of Westland, 2009 WL 247907, at *5 (6th Cir. Feb. 2, 2009). Therefore, the objective
component of this claim is established.
Evidence supporting the subjective component of the claim, however, is entirely
lacking as to defendants Dzendzel, Geary and Eshman.5 As noted above, Dzendzel’s only contact

5

The complaint names Eshman both individually, see Comp. ¶¶ 14, and in his capacity as
the Berkley public safety director responsible for training Berkley’s police officers. See id. ¶ 61.
11

with decedent was that he arrested her, brought her to the police station for processing, and saw her
briefly later in the afternoon as she sat in the lock-up. His only knowledge of decedent’s condition
was that her blood alcohol content was 0.05 and that during the booking process she told Geary “that
she may be going through alcohol withdrawal later.” In response to this latter piece of information,
Dzendzel told Geary to “keep an eye on her.” Dzendzel saw decedent later that afternoon when he
relieved the dispatcher between 4:10 and 5:00 p.m. and he noticed nothing unusual about her.
Geary’s knowledge of decedent’s condition was no different from Dzendzel’s. He
asked decedent if she had any of the medical conditions listed on the intake sheet and her only
response was that she “may be going through alcohol withdrawal later.” Geary monitored her
throughout his shift, which ended at 7:00 p.m., and he noticed nothing unusual about her. Geary
gave her a meal at 4:20 p.m. and he believed she appeared to be in good health. Decedent never
indicated she felt ill and Geary did not notice her trying to get his attention. When his shift ended,
Geary says he passed on to the next desk officer (Herriman) decedent’s comment about possibly
experiencing alcohol withdrawal later.6
Eshman had no contact with decedent at all until after she had died. The first time
he ever heard of her was when defendant Hadfield called him at home and told him “there was a
death in the station in the cell.” Eshman Dep. at 73. Plaintiff offers no evidence showing that
Eshman was personally involved in this incident.

In this section of this opinion, the Court addresses only Eshman’s individual liability.
6

Geary testified that at the end of his shift at 7:00 p.m. he told the next desk officer about
decedent’s statement. See Geary Dep. at 14. However, the next desk officer, Herriman, testified
that at the start of his shift at 7:00 p.m. he was not aware of decedent’s potential alcohol
withdrawal. See Herriman Dep. at 13.
12

Under these circumstances, plaintiff’s Fourteenth Amendment claim fails as to
Dzendzel, Geary and Eshman because plaintiff has produced no evidence from which a jury could
find that they were aware decedent had a serious medical need and that they took no appropriate
steps to address it. Eshman had no contact with her and knew nothing about her. Decedent’s
statement that she “may be going through alcohol withdrawal later” was insufficient to place
Dzendzel or Geary on notice that she actually was experiencing or likely would experience alcohol
withdrawal, and nothing more than monitoring decedent was called for under the circumstances.
See, e.g., Meier v. County of Presque Isle, 376 F. App’x 524, 530 (6th Cir. 2010) (affirming summary
judgment for sheriff’s deputy who placed an intoxicated arrestee, who later had a seizure, in a
holding cell where he did not appear to need medical care because “he cooperated, communicated
effectively, and walked unassisted”).
Plaintiff argues that Dzendzel and Geary should have referred decedent for a medical
evaluation based simply on her statement that she “may be going through alcohol withdrawal later,”
and that by failing to take this step they were deliberately indifferent. See Pl.’s Resp. Br. at 21-22.
This argument fails because the subjective component of a deliberate indifference claim turns not
on whether defendants could have taken additional steps to ensure decedent’s safety but on whether
they “subjectively perceived facts from which to infer substantial risk to the prisoner, that [they] did
in fact draw the inference, and that [they] then disregarded that risk.” Comstock, supra. The facts
of which these defendants were aware (i.e., decedent’s statement that she may experience alcohol
later and their direct observation throughout the daytime shift that she showed no signs of illness
or distress) did not suggest “substantial risk” to decedent’s health or safety. Nor did they draw any
such inference. Dzendzel testified that in his 25-years of experience at the Berkley public safety

13

department he never encountered a prisoner who required medical attention due to alcohol
withdrawal and that he saw nothing unusual about decedent. Dzendzel Dep. at 48-50. Geary
testified to the same effect, although he has less seniority with the Berkley public safety department
than Dzendzel. Geary Dep. at 14, 29-30. As noted in Speers v. County of Berrien, 196 F. App’x
390, 395 (6th Cir. 2006), “[w]hile delirium tremens is a serious medical condition, which generally
requires immediate hospitalization, the same is not true of general alcohol withdrawal, which
typically may be managed in a prison setting and indeed frequently is managed there.”
Because no jury could find that defendants Dzendzel, Geary or Eshman (in his
individual capacity) were deliberately indifferent to decedent’s serious medical needs, the Court
shall grant summary judgment in their favor on the Fourteenth Amendment claim.
A different picture emerges as to defendants Herriman and Moschelli. Viewing the
evidence in the light most favorable to plaintiff, by crediting the testimony of the other inmates7 and
discounting that of defendants themselves, a jury could find that Herriman and Moschelli were
aware at the beginning of their 7:00 p.m. shift that decedent had stated she might be experiencing
alcohol withdrawal (see n.5, supra); that decedent informed them shortly thereafter that she may
soon be experiencing delirium tremens; that for a period of perhaps two hours she showed signs of

7

Defendants urge the Court to disregard Henry’s testimony because “[t]here is no dispute
that Ms. Kindl died before midnight on July 12th. . . . He arrived at Berkley at 3:29 a.m., and was
in the booking room about 72 seconds before being placed in the cell at 3:30 a.m., hours after
Ms. Kindl had died.” Defs.’ Reply Br. at 1. So far as the Court is aware, the time of death has
not been established. As noted above, the autopsy report indicates the time of death could not be
determined, and Dr. Spitz testified only that the seizure decedent experienced shortly before
midnight was consistent with her dying at that time. The only undisputed facts regarding the
time of death are that Herriman and Arney found decedent to be unresponsive at 6:05 a.m. and
that she was pronounced dead 20 minutes later. Whether Henry heard decedent will be for the
jury to decide.
14

distress (urinating on herself, moaning, crying, screaming, yelling, waving at the camera, pleading
for help and exhibiting a shocked expression and sick appearance); and that defendants nonetheless
took no action. All of the defendants in this matter, including Herriman and Moschelli, testified that
it was the policy of the Berkley public safety department to summon medical help whenever the
need was apparent or whenever an inmate requested it. But if the testimony of the other inmates,
McClanahan and Henry is believed, then it is apparent that Herriman and Moschelli disregarded this
policy by ignoring both plaintiff’s requests for medical help and the obvious signs that such help was
needed. The obviousness of the need for medical assistance, combined with defendants’ violation
of the city policy requiring that such assistance be provided, is sufficient evidence of deliberate
indifference to defeat defendants’ motion for summary judgment as to these two defendants. See
Bertl, 2009 WL 247907, at *5 (“We can find subjective knowledge based on the obviousness of the
risk.”); Jackson v. Wilkins, 2013 WL 827725, at *6 (6th Cir. Mar. 6, 2013) (citing authority for the
proposition that a defendant’s “failure to follow ‘stated jail policy’” can be evidence of deliberate
indifference). Accordingly, the Court shall deny defendants’ motion for summary judgment as to
defendants Herriman and Moschelli on plaintiff’s Fourteenth Amendment claim.8
Plaintiff also directs her Fourteenth Amendment claim at the city and its public safety
director, defendant Eshman, on the theory that they “fail[ed] to properly train and supervise the
Individual Defendants and to develop and implement policies and procedures for prisoners with
medical needs . . . .” Compl. ¶ 32. Elsewhere plaintiff articulates this claim in terms of the

8

Defendants Herriman and Moschelli are not entitled to qualified immunity because the
right of inmates and pretrial detainees to receive care for their serious medical needs was clearly
established long before the incident at issue in the present case. See Stefan, 497 F. App’x at 579.
Whether defendants violated that right is a question the jury must answer by resolving the factual
dispute regarding decedent’s behavior and appearance during the shift that began at 7:00 p.m.
15

municipal defendants
failing to provide medical treatment; creating or allowing the
continuance of the custom under which the alcohol/drug withdrawal
protocol was not followed and inmates were not appropriately treated
for alcohol withdrawal; being grossly negligent in supervising
subordinates who failed to monitor and provide medical treatment;
and/or exhibiting deliberate indifference to Plaintiff’s Decedent’s
rights by not acting on information which indicated that
unconstitutional acts were occurring, . . . .
Id. ¶ 43. In essence the claim is that the city and the public safety director failed to train their
officers to recognize and respond to alcohol withdrawal and delirium tremens.
The seminal “failure to train” case is City of Canton, Ohio v. Harris, 489 U.S. 378
(1989), in which the Supreme Court held that
the inadequacy of police training may serve as the basis for § 1983
liability only where the failure to train amounts to deliberate
indifference to the rights of persons with whom the police come into
contact. This rule is most consistent with our admonition in Monell,
436 U.S., at 694, 98 S.Ct., at 2037, and Polk County v. Dodson, 454
U.S. 312, 326, 102 S.Ct. 445, 454, 70 L.Ed.2d 509 (1981), that a
municipality can be liable under § 1983 only where its policies are
the “moving force [behind] the constitutional violation.” Only where
a municipality’s failure to train its employees in a relevant respect
evidences a “deliberate indifference” to the rights of its inhabitants
can such a shortcoming be properly thought of as a city “policy or
custom” that is actionable under § 1983. As Justice BRENNAN’s
opinion in Pembaur v. Cincinnati, 475 U.S. 469, 483-484, 106 S.Ct.
1292, 1300-1301, 89 L.Ed.2d 452 (1986) (plurality) put it:
“[M]unicipal liability under § 1983 attaches where-and only where-a
deliberate choice to follow a course of action is made from among
various alternatives” by city policymakers. See also Oklahoma City
v. Tuttle, 471 U.S., at 823, 105 S.Ct., at 2436 (opinion of
REHNQUIST, J.). Only 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 (footnote omitted). As Justice O’Connor explained in her concurring opinion,
In my view, it could be shown that the need for training was
16

obvious in one of two ways. First, a municipality could fail to train
its employees concerning a clear constitutional duty implicated in
recurrent situations that a particular employee is certain to face. As
the majority notes, see ante, at 1205, n.10, the constitutional
limitations established by this Court on the use of deadly force by
police officers present one such situation. The constitutional duty of
the individual officer is clear, and it is equally clear that failure to
inform city personnel of that duty will create an extremely high risk
that constitutional violations will ensue.
*

*

*

Second, I think municipal liability for failure to train may be
proper where it can be shown that policymakers were aware of, and
acquiesced in, a pattern of constitutional violations involving the
exercise of police discretion. In such cases, the need for training may
not be obvious from the outset, but a pattern of constitutional
violations could put the municipality on notice that its officers
confront the particular situation on a regular basis, and that they often
react in a manner contrary to constitutional requirements.
Id. at 396-97. In the interim the Sixth Circuit has held that in a failure-to-train case “[t]o establish
deliberate indifference, the plaintiff ‘must show prior instances of unconstitutional conduct
demonstrating that the [municipality] 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), quoting Fisher v. Harden, 398 F.3d 837, 849 (6th Cir.
2005). Accord Fox v. Van Oosterum, 176 F.3d 342, 348 (6th Cir. 1999) (plaintiff must show more
than “an isolated, one-time event” to establish a failure-to-train policy or custom). Plaintiff must
show “(1) a clear and persistent pattern of mishandled medical emergencies for . . . detainees; (2)
notice, or constructive notice of such pattern, to [the city]; (3) tacit approval of the deliberate
indifference and failure to act amounting to an official policy of inaction; and (4) that the custom
or policy of inaction was the ‘moving force,’ or direct causal link, behind the constitutional injury.”
Garretson v. City of Madison Heights, 407 F.3d 789, 796 (6th Cir. 2005).
17

In the present case, the Fourteenth Amendment claim against the city and the public
safety director fails because plaintiff has produced no evidence of prior instances of a Berkley
lockup detainee being denied medical care. Not only is there no evidence of such a pattern; there
is no evidence of any such cases ever occurring involving any medical condition, alcohol withdrawal
or otherwise. Defendant Eshman, who has been the Berkley public safety director since 2002,
testified that he has “never heard of lack of medical care being alleged” and that to his knowledge
the City of Berkley has never been sued based on such an allegation. Eshman Dep. at 10, 67-68.
Plaintiff has offered no evidence to the contrary.
Nor is this a case where the municipality had a “total lack of any . . . policies,
practices, and adequate training for this type of constitutional claim.” Blackmore v. Kalamazoo
County, 390 F.3d 890, 900 (6th Cir. 2005). Defendants testified, and plaintiff does not deny, that the
City of Berkley provides a great deal of medical training to all of its public safety officers. Eshman
testified that he “require[s] my officers to be medical first responders, they’re trained for that, they
have to keep updated.” Eshman Dep. at 26. “A medical first responder is one step below the basic
emergency medical technician. . . . [I]t’s a certification.” Id. at 27. Eshman also requires that “two
officers go to every ambulance run in the city . . . to be able to learn from the [ambulance] people
and recognize these signs of trauma so we’re constantly doing training.” Id. at 54. In addition, in
April 2007 Eshman adopted General Order No. 15, which requires “the officer in charge to see that
medical attention is provided for prisoners when necessary” and a visual check of every detainee
“at least every fifteen (15) minutes.” Defs.’ Ex. N; Eshman Dep. at 30. The individual defendants
testified uniformly that under this policy they were required to call for medical assistance whenever
a detainee requested it or whenever the need for such assistance was apparent. See, e.g., Geary Dep.

18

at 29-30; Dzendzel Dep. at 9, 20; Herriman Dep. at 22; Arney Dep. at 35-36; Hadfield Dep. at 53;
Robinson Dep. at 74; Eshman Dep. at 42-43, 45. Further, emergency medical care is immediately
available: “The ambulance company that we utilize . . . has an office perhaps 200 yards from our
police station and they would stage their rig in the parking lot . . . adjacent to the station.” Eshman
Dep. at 39.
Defendants acknowledge the City of Berkley does not train its officers specifically
in recognizing and responding to alcohol withdrawal. While plaintiff faults the city and the public
safety director for this failure, she has not shown that specific training of this nature was
constitutionally required. Plaintiff has produced no evidence to demonstrate that detainees suffering
from alcohol withdrawal are encountered at the Berkley lockup so frequently that this is a “recurrent
situation[] that a particular employee is certain to face,” thereby resulting in “an extremely high risk
that constitutional violations will ensue.” Harris, supra.9 Nor has she shown that detainees
suffering from alcohol withdrawal, but who show no visible symptoms of distress, necessarily
require immediate medical care. That is, plaintiff has not shown the constitutional inadequacy of
a policy requiring jailers, who are trained as medical first responders, to provide medical care to all

9

Defendants, on the other hand, testified that they had rarely, if ever, encountered a
detainee who needed medical care due to alcohol withdrawal. Dzendzel, a 25-year veteran of the
Berkley public safety department, could not recall a single time when a detainee with alcohol
problems required medical attention. Dzendzel Dep. at 48-49. Gabriel, whose length of service
is not mentioned in the submitted deposition pages, could not “recall having a prisoner who you
had to get medical attention for because they were in alcohol withdrawal.” Garbriel Dep. at 39.
Eshman, a police officer since 1969, indicated that he has “seen people that needed to be
hospitalized because of their alcohol withdrawal” but that he was unaware of any cases where
alcohol withdrawal or delirium tremens resulted in death. Eshman Dep. at 10, 51. As, as noted
above, the Sixth Circuit has indicated that “general alcohol withdrawal . . . typically may be
managed in a prison setting and indeed frequently is managed there.” Speers, 196 F. App’x at
395.
19

detainees who request it and to those who exhibit visible symptoms. Eshman testified he learned,
through experience and training, that “alcohol withdrawal or drug withdrawal could become
symptomatic through a number of visually-recognizable symptoms . . . . [I]t’s when it becomes
symptomatic that it became a threat and that’s how it was handled.” Eshman Dep. at 49-50.
Eshman listed shakiness, sweating, vomiting, stomach pain, breathing difficulties and hallucinations
as being among these symptoms. Id. at 52. The Court notes that plaintiff’s expert, Dr. Werner Spitz,
M.D., listed similar symptoms and incontinence. Spitz Dep. at 21.10 Plaintiff has offered no
evidence suggesting that a jailer cannot adequately address a detainee’s alcohol withdrawal and
delirium tremens by monitoring for “any signs of trauma, illness,” Eshman Dep. at 58, and
summoning medical assistance at that time.
In short, plaintiff has not shown that the city or its public safety director was
deliberately indifferent to detainees’ safety. These defendants train their officers as “medical first
responders” and have a written policy requiring them to provide medical care to any detainee who
requests it or who shows signs of illness or distress. If, as plaintiff contends, defendants Herriman
and Moschelli disregarded decedent’s pleas for help and her symptoms of distress, they did so
contrary to their training and the city’s policy. In this event, the city’s policy or custom cannot have
been the “the moving force of the constitutional violation.” Monell v. Dept. of Soc. Servs., 436 U.S.
658, 694 (1978). Nor has plaintiff produced evidence that the municipal defendants “ignored a
history of abuse” and that they were “clearly on notice” that specific training was needed regarding
alcohol withdrawal and delirium tremens in order to avoid endangering detainees in situations such

10

Another of plaintiff’s experts, Dr. Joe Goldenson, M.D., testified that “urination isn’t a
symptom of withdrawal . . . .” Goldenson Dep. at 104.
20

as those presented in this case. The Court shall therefore grant summary judgment for the City of
Berkley and public safety director Eshman on plaintiff’s Fourteenth Amendment claim and deny
plaintiff’s cross motion for partial summary judgment.
B. The State-Law Claims
Plaintiff’s complaint also asserts the following state-law claims: gross negligence
(Count III), negligent and intentional infliction of emotional distress (Counts V and VI), “negligent
hiring/training/retention of employment services/lack of protocol” (Count VII)11, wrongful death
(Count VIII), violation of the Michigan Constitution (Count X), and negligence (Count XI). In their
motion for summary judgment, defendants argue that all of these claims fail for various reasons,
including that the City of Berkley and defendant Eshman are statutorily immune from tort liability;
that the individual defendants were not grossly negligent and their immunity is therefore not
overcome; the individual defendants acted in good faith and therefore they cannot be held liable for
intentional torts; the claim for intentional infliction of emotional distress fails on the merits because
defendants’ conduct was not extreme and outrageous; and no cause of action for damages exists
directly under the Michigan Constitution.
In her response to defendants’ summary judgment motion, plaintiff ignores most of
these arguments and defends only the state-law claims against the individual defendants for
intentional infliction of emotional distress. The Court shall grant summary judgment for defendants
on all of the other state-law claims, as plaintiff has abandoned them. Additionally, for the reasons
stated below the Court shall grant summary judgment for all of the individual defendants except

11

This appears to be both a state-law claim (based on “negligence”) and a federal claim
(based on “violations of 42 U.S.C. § 1983 and constitutional rights”). See Compl. ¶¶ 60-61. To
the extent this is a federal claim, it has been dealt with above.
21

Herriman and Moschelli on the intentional infliction claim.
Under the Michigan governmental immunity statute, defendants are immune from
liability for an intentional tort if (1) they were acting within the scope of their authority, (2) “the acts
were undertaken in good faith, or were not undertaken with malice,” and (3) the acts in question
were discretionary as opposed to ministerial. See Oliver v. Smith, 290 Mich. App. 678, 684 (2010).12
In the present case, the only remaining state-law claim is for intentional infliction of emotional
distress, and the disputed issue as to this claim is whether defendants acted in good faith. In this
context, “good faith” has been defined as follows:
Ross did not elaborate on this element, relying instead on Prosser on
Torts and the cases cited therein. Prosser noted that the “considerable
majority of the state courts take the position that there is no immunity
where the inferior officer does not act honestly and in good faith, but
maliciously, or for an improper purpose.” “[O]fficial immunity
should not become a cloak for malicious, corrupt, and otherwise
outrageous conduct on the part of those guilty of intentional abuse of
power....” The cases cited by Prosser indicate that there is no
immunity when the governmental employee acts maliciously or with
a wanton or reckless disregard of the rights of another.
Burland v. French, 2012 WL 2362442, at *4 (Mich. App. June 21, 2012), citing Ross v. Consumers
Power Co., 420 Mich. 567 (1984). Other cases have framed the test as whether the officer “has
utilized wanton or malicious conduct or demonstrated a reckless indifference to the common dictates

12

The issue of “gross negligence” comes into play only when plaintiff asserts a
negligence claim against government employees. See Oliver, 290 Mich. App. at 684 (noting the
distinction between intentional torts and negligence in the governmental immunity analysis; “[i]f
the plaintiff pleaded a negligent tort, proceed under MCL 691.1407(2) and determine if [among
other things] the individual’s conduct amounted to gross negligence that was the proximate
cause of the injury or damage”). Similarly, the issue of whether defendants’ negligence was “the
proximate cause of the injury or damage” arises only if plaintiff alleges negligence. Since
plaintiff has abandoned her negligence claims, the Court need not address defendants’ arguments
regarding gross negligence and “the” proximate cause.
22

of humanity.” Dickey v. Fluhart, 146 Mich. App. 268, 276 (1985), citing Firestone v. Rice, 71 Mich.
377, 384-87 (1888). Other courts have stated that “willful and wanton misconduct is made out only
if the conduct alleged shows an intent to harm or, if not that, such indifference to whether harm will
result as to be the equivalent of a willingness that it does.” Gentry v. Wayne County Deputy Sheriff
Carmona, 2011 WL 4810847, at *6 (Mich. App. Oct. 11, 2011), quoting Burnett v. City of Adrian,
414 Mich. 448, 455 (1982). “The . . . purpose underlying this factor is to ‘protect[ ] a defendant’s
honest belief and good-faith conduct with the cloak of immunity while exposing to liability a
defendant who acts with malicious intent.’” Gentry, 2011 WL 4810847, at *6, quoting Odom v.
Wayne County, 482 Mich. 459, 481-82 (2008).
In the present case there is no evidence that any of the defendants other than
Herriman and Moschelli acted maliciously, outrageously, or with wanton or reckless disregard for
decedent’s health and safety. The analysis provided above, explaining why the Court is granting
summary judgment for Dzendzel, Geary and Eshman but not for Herriman and Moschelli as to
plaintiff’s Fourteenth Amendment claim, applies equally to her tort claim. There simply is no
evidence of malice as regards Dzendzel, Geary and Eshman. However, if the jury finds that
Herriman and Moschelli ignored plaintiff’s pleas for help under the circumstances as described by
inmates McClanahan and Henry, then the jury could also find that these defendants did not act in
good faith (and are therefore not entitled to immunity) and that the elements of intentional infliction
of emotional distress13 are met.

13

“The tort of intentional infliction of emotional distress has four elements: (1) extreme
and outrageous conduct, (2) intent or recklessness, (3) causation, and (4) severe emotional
distress. Liability for such a claim has been found only where the conduct complained of has
been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of
decency and to be regarded as atrocious and utterly intolerable in a civilized community.”
23

Conclusion
For the reasons stated above,

IT IS ORDERED that defendants’ motion for summary judgment is granted as to all
defendants except Herriman and Moschelli and as to all claims except plaintiff’s claim under the
Fourteenth Amendment and her state-law claim for intentional infliction of emotional distress.

IT IS FURTHER ORDERED that plaintiff’s motion for partial summary judgment
is denied.

S/ Bernard A. Friedman______
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE
Dated: August 21, 2013
Detroit, Michigan

Haverbush v. Powelson, 217 Mich. App. 228, 233-34 (1996) (citations omitted).
24