Hagerman v. Macomb, County of et al
ORDER Granting In Part and Denying In Part Defendants' Motion for Summary Judgment and/or Dismissal 33 , Denying Defendants' Motion for Leave to File Notice of Non-Party at Fault 44 , and Setting Dates. Signed by District Judge Denise Page Hood. (LSau)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
CASE NO. 15-10952
HON. DENISE PAGE HOOD
MACOMB, COUNTY OF,
ANTHONY M. WICKERSHAM,
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT AND/OR DISMISSAL [#33],
DENYING DEFENDANTS’ MOTION FOR LEAVE TO FILE NOTICE OF
NON-PARTY AT FAULT [#44], AND
Plaintiff Deborah Hagerman (“Hagerman”) is the personal representative of
Ryan Hagerman’s Estate. Hagerman filed this civil rights suit as result of the
brutal death of her son, at the hands of another inmate while detained in the
Macomb County Jail. Defendants filed a Motion for Summary Judgment and/or
Dismissal. (Doc # 33) For the reasons set forth below, the Motion is Granted in
Part and Denied in Part.
On May 27, 2014, Warren Police Officers Stuart Krueger (“Krueger”) and
Frank Gasser (“Gasser”) transported Ryan Hagerman to the Macomb County Jail
for booking. During the intake process, he indicated that he was suicidal. (Doc #
33-5, Pg ID 240; Doc # 33-14, Pg ID 281) Ryan Hagerman was eventually
classified as “High Observation – Green,” which is the highest observation status
at the jail, and placed in cell MH03 in the mental health unit. Defendants contend
that, once notified of Ryan Hagerman’s suicidal thoughts, they followed Macomb
County Jail policy by properly classifying him, writing a report, and placing him in
the mental health unit. (Doc # 33-14, Pg ID 281-82) Ryan Hagerman’s mental
health report did not indicate that he should be housed alone. (Doc # 33-17, Pg ID
Also on May 27, 2014, Krueger and Gasser transported Mark Cowans
(“Cowans”) to the Macomb County Jail for booking. When Cowans arrived at
Macomb County Jail he was in leg shackles. At his deposition, Krueger testified
that leg shackles are used when prisoners are assaultive or considered a flight risk,
and that having to use the leg shackles was “pretty rare” and happened with
approximately “1 in 50” prisoners. (Doc # 38-2, Pg ID 491-92) Krueger testified
that Cowans was in leg shackles because he had been assaultive to another prisoner
and had tried to escape from his cell at the Warren Jail. Krueger further testified
that Cowans had to be wrestled to the floor by a Michigan State Patrol trooper
while at the Warren Jail. Krueger testified that upon arrival at the Macomb County
Jail, he informed the Macomb County booking officers that Cowans was
combative, had assaulted another prisoner, and had wrestled with a Michigan State
Police trooper. Id. at 493. At his deposition, Gasser testified that he remembers
that Krueger informed the Macomb County booking officers that Cowans was
combative, had assaulted another prisoner, and had wrestled with a Michigan State
Police trooper. Doc # 38-3, Pg ID 512, 514-15; see also Doc # 38-4. Defendant
Deputy Steven Marschke (“Marschke”), on the other hand, testified that he
remembers when Krueger and Gasser dropped off Ryan Hagerman and Cowans at
Macomb County Jail, and that he was the first booking officer to receive them, but
that Cowans was not in leg shackles and no information was conveyed about
(Doc # 38-6, Pg ID 534, 536)
Defendant Deputy Keith Pethke
(“Pethke”) was also working in booking at the time and testified that the Warren
Police Officers provided no information about Cowans.
During screening, Cowans did not report any medical or mental health
problems. He was initially placed in general population, but a few hours later
Cowans indicated to Deputy Bradley Krueger that he felt suicidal. Cowans was
taken to the mental health unit for evaluation. According to Defendants, Cowans’
mental health report indicated that he felt suicidal, answered questions in a calm
manner, and did not act aggressively, which failed to indicate that he was a danger
to anyone other than himself. Defendants did not place Cowans on a status to be
Cowans was also classified as “High Observation – Green” and placed in
cell MH03 – the same mental health cell as Ryan Hagerman. Mental health cells,
such as MH03, are high observational units that are supposed to be monitored
nearly continuously. They contain cameras which give the mental health duty
station desk a live feed of all activity that happens in the cells. Cell MH03 cell is
approximately ten feet away from the mental health duty station.
Ryan Hagerman and Cowans remained peacefully in the cell for 14 hours.
On May 28, 2014, Cowans suddenly attacked Ryan Hagerman. Cowans was on
the bottom bunk and Ryan Hagerman was on the top bunk. Cowans pulled Ryan
Hagerman’s arm, causing him to fall from the top bunk to the concrete floor.
Cowans punched Ryan Hagerman, and then proceeded to stomp on Ryan
Hagerman’s head. Cowans occasionally stopped stomping on Ryan Hagerman’s
head, but only to look out the cell window into the hallway. The attack lasted for
approximately a minute and a half.
During the attack, Defendants Deputy Brian Pingilley (“Pingilley”) and
Deputy Amy Franks (“Franks”) were in the mental health duty station. Pingilley
testified that he was on the intercom responding to another inmate, which
prevented him from monitoring the activity in cell MH03. Once he finished his
conversation, he sat down and resumed viewing the monitors. He noticed, in the
MH03 live feed, that Cowans was nudging Ryan Hagerman who was lying on the
floor. According to Pingilley, he asked Franks to hold off on completing her
security round so that he could investigate the activity in cell MH03. Pingilley
entered the cell, and Franks initiated the intercom in the cell in order to
communicate with Pingilley. Pingilley asked Cowans what happened to Ryan
Hagerman, and Cowans allegedly stated that he fell off his bunk.
attended to Ryan Hagerman, and Franks called for medical assistance.
Ryan Hagerman was transported to the hospital where he died three weeks
later as a result of the beating. Macomb County Jail staff eventually viewed the
video of the attack, and Cowans was convicted of Ryan Hagerman’s murder.
Hagerman filed suit alleging three causes of action: (1) Deliberate Indifference;
(2) a Monell claim against Macomb County and Sheriff Anthony M. Wickersham;
and (3) Gross Negligence.
STANDARD OF REVIEW
Motion to Dismiss
Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for a motion
to dismiss for failure to state a claim upon which relief can be granted. Fed. R.
Civ. P. 12(b)(6). This type of motion tests the legal sufficiency of the plaintiff's
complaint. Davey v. Tomlinson, 627 F. Supp. 1458, 1463 (E.D. Mich. 1986).
When reviewing a motion to dismiss under Rule 12(b)(6), a court must “construe
the complaint in the light most favorable to the plaintiff, accept its allegations as
true, and draw all reasonable inferences in favor of the plaintiff.” Directv Inc. v.
Treesh, 487 F.3d 471, 476 (6th Cir. 2007). A court, however, need not accept as
true legal conclusions or unwarranted factual inferences.” Id. (quoting Gregory v.
Shelby Cnty., 220 F.3d 443, 446 (6th Cir. 2000)).
masquerading as factual allegations will not suffice.” Edison v. State of Tenn.
Dep’t of Children’s Servs., 510 F.3d 631, 634 (6th Cir. 2007).
As the Supreme Court has explained, “a plaintiff’s obligation to provide the
‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not do. Factual
allegations must be enough to raise a right to relief above the speculative level… .”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted); see
LULAC v. Bresdesen, 500 F.3d 523, 527 (6th Cir. 2007). To survive dismissal, the
plaintiff must offer sufficient factual allegations to make the asserted claim
plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). “A claim has
facial plausibility when the pleaded factual content allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id.
Motion for Summary Judgment
The Court will grant summary judgment if “the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250-57 (1986). A fact is material if it could affect the outcome of the case
based on the governing substantive law. Id. at 248. A dispute about a material fact
is genuine if, on review of the evidence, a reasonable jury could find in favor of the
nonmoving party. Id.
The moving party bears the initial burden to demonstrate the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
If the movant meets this burden, the nonmoving party must “go beyond the
pleadings and … designate specific facts showing that there is a genuine issue for
trial.” Id. at 324. The Court may grant a motion for summary judgment if the
nonmoving party who has the burden of proof at trial fails to make a showing
sufficient to establish the existence of an element that is essential to that party’s
case. See Muncie Power Prods., Inc. v. United Tech. Auto., Inc., 328 F.3d 870, 873
(6th Cir. 2003). “The mere existence of a scintilla of evidence in support of the
plaintiff's position will be insufficient; there must be evidence on which the jury
could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. “Conclusory
allegations do not create a genuine issue of material fact which precludes summary
judgment.” Johari v. Big Easy Restaurants, Inc., 78 F. App’x 546, 548 (6th Cir.
When reviewing a summary judgment motion, the Court must view the
evidence and all inferences drawn from it in the light most favorable to the
nonmoving party. Kochins v. Linden–Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir.
1986). The Court “need consider only the cited materials, but it may consider
other materials in the record.” Fed. R. Civ. P. 56(c)(3). The Court’s function at
the summary judgment stage “is not to weigh the evidence and determine the truth
of the matter but to determine whether there is a genuine issue for trial.”
Anderson, 477 U.S. at 249.
A. Qualified Immunity
Defendants contend that they are entitled to qualified immunity because
Hagerman failed to establish a constitutional right, to be housed alone in a cell or
continuously monitored in a cell, that was clearly established.
Qualified immunity protects state actors sued under Section 1983 from
damages liability “insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.”
Pearson v. Callahan, 555 U.S. 223, 231(2009) (quotation marks omitted). The
determination of whether a government official is entitled to qualified immunity is
a two-step inquiry: “First, viewing the facts in the light most favorable to the
plaintiff, has the plaintiff shown that a constitutional violation has occurred?
Second, was the right clearly established at the time of the violation?” Miller v.
Sanilac Cnty., 606 F.3d 240, 247 (6th Cir.2010) (internal quotation marks and
citations omitted). These steps may be addressed in any order. Pearson, 555 U.S.
The Court does not construe Hagerman’s Fourteenth Amendment claims as
narrowly as Defendants.
Hagerman asserts a deliberate indifference claim
regarding a inmate’s right to be free from violence at the hands of his cellmate.
That he was not housed alone and was not continuously monitored are two of the
ways in which Ryan Hagerman’s right to be free from violence at the hands of his
cellmate was allegedly violated. The Court finds that Hagerman has asserted a
constitutional claim on behalf of Ryan Hagerman. The right to be free from
violence at the hands of other inmates was clearly established by the Supreme
Court in Farmer v. Brennan, 511 U.S. 825 (1994). See Richko v. Wayne Cnty., 819
F.3d 907, 915 (6th Cir. 2016). Defendants are not entitled qualified immunity on
the basis of failure to identify a clearly established constitutional right that was
B. Deliberate Indifference Claim
Hagerman claims that Defendants were deliberately indifferent to Ryan
Hagerman’s right to be free from a substantial risk of violence at the hands of
Pretrial detainees are not protected under the Eighth Amendment; rather, the
constitutional protections afforded to pretrial detainee stem from the Due Process
Clause of the Fourteenth Amendment. Roberts v. City of Troy, 773 F.2d 720, 723
(6th Cir. 1985). See also Bell v. Wolfish, 441 U.S. 520, 545 (1979) (“pretrial
detainees, who have not been convicted of any crimes, retain at least those
constitutional rights that we have held are enjoyed by convicted prisoners.”). To
the extent that Hagerman claims Eighth Amendment violations, those claims are
dismissed because Ryan Hagerman was a pretrial detainee.
Prison officials may not remain deliberately indifferent to the risk of harm a
prisoner may face at the hands of another prisoner. Farmer, 511 U.S. at 833
(1994). Prison officials have a duty to protect prisoners from violence committed
by other prisoners.
Therefore, officials must take reasonable steps to
“guarantee the safety of the inmates.” Id. at 832.
To sustain a Section 1983 claim for deliberate indifference to a substantial
risk of serious harm, the plaintiff must satisfy an objective and subjective
component. The objective component requires a showing “that absent reasonable
precautions, an inmate is exposed to a substantial risk of serious harm.” Amick v.
Ohio Dep’t of Rehab. & Correction, 521 F. App’x 354, 361 (6th Cir. 2013). The
subjective component requires a showing that (1) the official being sued
subjectively perceived facts from which to infer a substantial risk to the prisoner,
(2) the official did in fact draw the inference, and (3) the official then disregarded
that risk. Richko, 819 F.3d at 915. Because government officials do not readily
admit the subjective element, a plaintiff may establish the subjective prong through
inference from circumstantial evidence, “and a factfinder may conclude that a
prison official knew of a substantial risk from the very fact that the risk was
obvious.” Dominguez v. Corr. Med. Servs., 555 F.3d 543, 550 (6th Cir. 2009). A
court must examine the subjective component for each individual defendant.
Phillips v. Roane Cnty., Tenn., 534 F.3d 531, 541 (6th Cir. 2008).
Defendants do not challenge, and the Court finds that Hagerman has
satisfied the objective component of her deliberate indifference claim. Viewing the
evidence in the light most favorable to Hagerman, Cowans arrived at Macomb
County Jail in shackles. The additional security restraint indicated that Cowans
presented some type of danger to either himself or others. Krueger and Gasser told
Marschke that Cowans was combative, had assaulted another prisoner, and had
struggled with another police officer while attempting to flee custody at the Warren
Jail. Ryan Hagerman was placed in a cell with Cowans, and he suffered a violent
attack at the hands of Cowans which resulted in Ryan Hagerman’s death. The
Court finds that Ryan Hagerman was incarcerated under conditions that posed a
substantial risk of serious harm. Having found that the objective component of the
deliberate indifference claim is sufficiently established at this stage, the Court turns
to examining the subjective component as to each Defendant.
Hagerman argues that Defendant Marschke was deliberately indifferent
because Krueger informed Marschke that Cowans had assaulted another inmate
and had wrestled with a Michigan State Police trooper prior to his arrival at the
Macomb County Jail, and Marschke did nothing with that information. Defendants
argue that the Court should grant Marschke qualified immunity and enter summary
judgment in his favor because Marschke did not play a role in the decision to house
Cowans and Ryan Hagerman together.
All of the officers, including Marschke, testified that if they had known that
Cowans previously assaulted another inmate he would have been housed alone.
Michelle Sanborn (“Sanborn”), Macomb County Jail administrator and author of
the jail policies and procedures, testified that if police officers drop off an inmate at
the jail and warn that an inmate is assaultive, then that inmate should not be housed
with other inmates, and the booking officer should note this information in the
computer system so that everyone is aware. (Doc # 38-15, Pg ID 700, 702) Such
an inmate would be designated as “High Risk Assault” and would be segregated
from the rest of the population. Id. at 702. Krueger and Gasser testified that
Krueger informed the Macomb County booking officers during hand-off that
Cowans was combative, had assaulted another inmate, and had wrestled with a
Michigan State Police trooper while at the Warren Jail.
Viewing the evidence in the light most favorable to Hagerman, there is a
question of material fact regarding whether Krueger informed Marschke that
Cowans had attacked another inmate, and Marschke failed to communicate this
information to his fellow officers who were responsible for assigning Cowans to a
cell. Under those circumstances, the Court concludes that a reasonable juror could
find that Marschke was deliberately indifferent to the safety of whoever was to be
housed in a cell with Cowans. Marschke is not entitled to qualified immunity. The
Court denies Defendants’ Motion for Summary Judgment as to the deliberate
indifference claim against Marschke.
Hagerman argues that Defendant Pethke was deliberately indifferent because
Krueger informed Pethke that Cowans had assaulted another inmate and had
wrestled with a Michigan State Police trooper prior to his arrival at the Macomb
County Jail, and Pethke did nothing with that information. Defendants argue that
the Court should grant Pethke qualified immunity and enter summary judgment in
his favor because Pethke was not aware that Ryan Hagerman and Cowans were
housed together, and he did not make the decision to house them together.
Pethke was working in the booking area on May 27, 2014 upon the arrival of
Ryan Hagerman and Cowans to the Macomb County Jail. (Doc # 38-7, Pg ID 545)
He was working in booking along with Marschke, and Deputies Bradley Krueger,
Jennifer Bancroft, and Jake Thorne. Id. at 546. Pethke testified that he was
present for all of the conversations that Warren Police Officers Stuart Krueger and
Gasser had with the booking officers when they dropped off inmates on that day.
Id. at 549. Krueger testified that he told the booking officers “at the window” that
Cowans had assaulted another inmate. (Doc # 38-2, Pg ID 493) Pethke testified
that he was working “up at the front window” on that day when the Warren
officers came in. (Doc # 38-7, Pg ID 549)
Pethke performed Ryan Hagerman’s initial screening and learned that he
was suicidal. Id. at 555. Pethke changed Ryan Hagerman into an anti-suicide
gown and placed him in a high-observation detox cell until he could be booked and
housed in a mental health unit cell. Id. Pethke did not pat down or screen Cowans.
Id. at 546. A few hours after Cowans’ initial intake, while he was still in a holding
cell, Pethke became aware that Cowans made some comments to Pethke’s partner
which suggested that he should be under high observation. Id. at 547.
After the assault, on June 2, 2014, Krueger went back to the Macomb
County Jail and told Pethke that he had informed the Macomb County Jail booking
officers that Cowans was assaultive toward another inmate while at the Warren
Jail. Id. at 549. Pethke asked Krueger who he told specifically. Krueger and
Gasser thought Krueger had told both Pethke and Marschke about Cowans. Id. at
549, 551-52. Pethke subsequently omitted himself in writing a report about this
conversation. Pethke wrote that Krueger told him that he told only Marschke about
Cowans on May 27, 2014. Id. at 549.
The same reasoning discussed above for Marschke applies. Viewing the
evidence in the light most favorable to Hagerman, there is a question of material
fact regarding whether Krueger informed Pethke that Cowans had attacked another
inmate, and Pethke failed to communicate this information to his fellow officers
who were responsible for assigning Cowans to a cell. Under those circumstances,
the Court concludes that a reasonable juror could find that Pethke was deliberately
indifferent to the safety of whoever was to be housed in a cell with Cowans.
Pethke is not entitled to qualified immunity. The Court denies Defendants’ Motion
for Summary Judgment as to the deliberate indifference claim against Pethke.
Hagerman argues that Defendant Pingilley was deliberately indifferent in
knowingly turning his back on the high-observation monitors to speak on the
intercom for approximately two minutes without requesting assistance from
Deputy Franks, who was nearby, to watch the monitors while Pingilley was turned
away. Defendants argue that the Court should grant Pingilley qualified immunity
and enter summary judgment in his favor because the only information that
Pingilley knew about Cowans and Ryan Hagerman was that they were in a highobservation cell wearing green anti-suicide gowns.
On the day of the assault, Pingilley was assigned as the day shift mental
health runner, and it was his responsibility to make the hourly security rounds in
the mental health unit. (Doc # 38-12, Pg ID 634-35) Ryan Hagerman and Cowans
had been housed together before Pingilley’s shift began, and Pingilley did not
know why they were housed in cell MH03, a high-observation cell. Id. at 640,
642. Pingilley testified that he did not know that Cowans had a history of being
assaultive. Id. at 644.
Ryan Hagerman and Cowans were classified as high-observation green
inmates, which was the highest observation status at the jail. (Doc #38-14, Pg ID
689; Doc # 38-15, Pg ID 707) Sanborn testified that, per the jail policy, highobservation inmates are supposed to be observed “nearly as continuous as
physically possible . . . because they need the highest level of supervision because
they’re in crisis.” (Doc # 38-15, Pg ID 707-08) She testified that some highobservation inmates can pose serious threats to other inmates. Id. at 708. Officer
Rossman testified that failure to watch the monitors for high-observation inmates
in the mental health duty station could lead to significant harm to one of the
inmates or an inmate who was with another inmate. (Doc #38-14, Pg ID 689)
At the precise time of the assault, Pingilley was allegedly speaking on the
mental health duty station intercom, responding to the needs of another inmate.
Rossman testified that if an officer is assigned to watch the high-observation
monitors but gets called away, it is the officer’s responsibility to make sure there’s
another officer there who can watch the monitors. (Doc # 38-14, Pg ID 689)
Deputy Franks was also in the mental health duty station at the time of the assault
and Pingilley’s intercom conversation. Franks testified that she observed Pingilley
talking on the intercom, and that his conversation lasted for one to two minutes.
(Doc # 38-13, 674) Pingilley testified that Franks sits about 15 feet away from him
in the same duty station. (Doc # 38-12, Pg ID 648)
Rossman testified that she has had to talk on the intercom while at the
mental health duty station. Id. She testified that she could not see the monitors
while talking on the intercom, but that she was still able to look into the cells, and
into cell MH03 in particular, through the windows. Id. at 689-90. Rossman
testified that if an officer is on the intercom and sees an altercation happening
through one of the high-observation cell windows, the officer is supposed to
discontinue the intercom conversation and go into the cell immediately to stop the
altercation. (Doc # 38-14, Pg ID 690) Pingilley testified that the mental health
cells have an upper and lower window; the middle of the upper window is at eye
height. (Doc # 38-12, Pg ID 636) He testified that when standing at the mental
health unit duty station, he can see 70 percent of cell MH03, including the bunks
and the floor in front of the bunks where Ryan Hagerman was found on the floor.
Id. at 643. Cell MH03 is ten feet away from Pingilley’s desk in the duty station.
(Doc # 38-12, Pg ID 648) Pingilley further testified that, while inside the mental
health duty station, he is able to hear yells and loud bangs coming from inside the
cells. Id. at 645-46. Franks also testified that the mental health cells are not sound
proof and that, while inside the mental health duty station, she is able to hear
yelling that occurs inside the cells. (Doc # 38-13, Pg ID 674)
According to Pingilley, he first became aware of the assault after it was over,
after he finished his intercom conversation and sat at his desk. At that point,
Pingilley saw on the monitor that Cowans was nudging Ryan Hagerman who was
on the floor. Pingilley then asked Franks to hold off on making her next security
round so that he could go to cell MH03 to investigate. Pingilley entered the cell
and asked Franks to call the nursing staff, which she did using her prep radio.
At his deposition, Pingilley admitted that he did not know whether he
complied with the Macomb County Jail policy requiring nearly continuous
monitoring of the high-observation inmates. Doc # 38-12, Pg ID 655-56; see also
Doc # 38-19, Pg ID 733. He testified that he did not know and never asked what
“nearly continuous” meant. He further testified that he thought he only needed to
observe high-observation inmates once every 15 minutes, and that this was his
actual practice. (Doc # 33-12, Pg ID 636, 640, 647)
Viewing the evidence in the light most favorable to Hagerman, Pingilley
knew that Ryan Hagerman and Cowans were high-observation green inmates, the
highest observation status at the jail that is reserved for inmates who are in crisis.
He knew they could be a danger to themselves or to others. He knew that failure to
monitor them on a nearly continuous basis could lead to significant harm to one or
both of them. Nevertheless, he did not monitor Ryan Hagerman and Cowans on a
nearly continuous basis as required. Instead, he observed them once every fifteen
minutes. Pingilley then proceeded to talk on the intercom for two minutes without
asking Franks, who was sitting a few feet away in the same duty station, to watch
the high-observation monitors. Further, there is evidence that Pingilley could
actually see inside cell MH03 while speaking on the intercom and would have been
able to hear yelling coming from the mental health cells inside his duty station.
Viewing the evidence in the light most favorable to Hagerman, there is a question
of material fact regarding whether Pingilley saw and/or heard the assault while
speaking on the intercom, and failed to discontinue his conversation to attempt to
stop the assault. The Court concludes that a reasonable juror could find that
Pingilley was deliberately indifferent to the safety of Ryan Hagerman. Pingilley is
not entitled to qualified immunity. The Court denies Defendants’ Motion for
Summary Judgment as to the deliberate indifference claim against Pingilley.
Hagerman argues that Defendant Franks was deliberately indifferent in
watching as Pingilley turned away from the monitors and carried out a two-minute
conversation on the intercom while doing nothing to assist in monitoring the highobservation cells, in contravention of her training and custom. Defendants argue
that the Court should grant Franks qualified immunity and enter summary
judgment in her favor because her duties did not include the mental health unit, she
could not see the mental health cells, and she had not interacted with Cowans or
received any information about him prior to the assault.
On the day the assault, Franks was assigned as the Upper D Block runner
responsible for female inmates. (Doc # 33-28, Pg ID 354-55) Her duties did not
include the mental health unit that housed Ryan Hagerman and Cowans, and she
could not see the mental health cells from her desk. Id. at 357, 371. However,
Franks testified that her desk is within the mental health duty station, and was
approximately 15 feet away from Pingilley’s desk. Doc # 38-13, Pg ID 663; Doc #
38-12, Pg ID 648; see also Doc # 38-20.
At the time of the assault, Franks was watching Pingilley as he talked on the
intercom for approximately two minutes. She testified that she was looking right
at him because she wasn’t doing anything. (Doc # 38-13, Pg ID 674) Franks also
testified that the mental health cells are not sound proof and that, while inside the
mental health duty station, she is able to hear yelling that occurs inside the cells.
According to Franks, she first became aware of the assault after it was over,
after Pingilley made her aware of the problem in cell MH03 and asked her to hold
off on her security round. (Doc # 33-28, Pg ID 363-64) Franks assisted Pingilley
via the intercom system and called nursing staff over her prep radio. Id. at 369,
372-73. She remained in the mental health duty station until she was relieved by
another officer so that she could make her security round. (Doc # 33-35, Pg ID
Viewing the evidence in the light most favorable to Hagerman, Franks knew
that Ryan Hagerman and Cowans were high-observation green inmates, the highest
observation status at the jail that is reserved for inmates who are in crisis. She
knew they could be a danger to themselves or to others. She knew that failure to
monitor them on a nearly continuous basis could lead to significant harm to one or
both of them. There is a question of material fact regarding whether she failed to
do anything to assist in monitoring the high-observation cells while she simply sat
watching Pingilley have a two-minute conversation on the intercom, despite her
testimony that she was doing nothing else at the time. Viewing the evidence in the
light most favorable to Hagerman, there is a question of material fact regarding
whether Franks could hear the assault taking place in cell MH03, which was a mere
ten feet away from the duty station and not sound proof, and failed to get up to
look at the high-observation monitors during the minute and a half that Cowans
spent brutally punching and stomping on Ryan Hagerman. The Court concludes
that a reasonable juror could find that Franks was deliberately indifferent to the
safety of Ryan Hagerman. Franks is not entitled to qualified immunity. The Court
denies Defendants’ Motion for Summary Judgment as to the deliberate indifference
claim against Franks.
Defendant Sheriff Anthony M. Wickersham (“Wickersham”) argues that the
deliberate indifference claim against him must be dismissed because he did not
have personal contact with Ryan Hagerman or Cowans, and did not participate in
their screening, booking, or housing. Hagerman clarifies in her Response that
Count I of the Complaint does not apply to Wickersham. Rather, Hagerman
asserts that Wickersham is liable for deliberate indifference as a municipal actor.
Accordingly, any deliberate indifference claim against Wickersham in an
individual capacity is dismissed.
Defendants next argue that all Section 1983 claims against all Defendants
should be dismissed because two separate intervening acts—premeditated murder
by Cowans and a health assessment of Cowans by a trained mental health
professional 55 minutes before the assault—have broken the causal connection to
the alleged wrongdoing.
Hagerman responds, and the Court agrees, that the very existence of a
deliberate indifference cause of action, first recognized by the Supreme Court in
Farmer, shows that Defendants’ argument is meritless. As the Supreme Court has
[p]rison officials have a duty to protect prisoners from violence at the
hands of other prisoners. . . . Having incarcerated persons with
demonstrated proclivities for antisocial criminal, and often violent,
conduct, . . . having stripped them of virtually every means of selfprotection and foreclosed their access to outside aid, the government
and its officials are not free to let the state of nature take its course. . .
. [A] prison official violates the Eight Amendment only when two
requirements are met. First, the deprivation alleged must be,
objectively, “sufficiently serious.” . . . [Second, the official must]
know of and disregard an excessive risk to inmate health or safety.
Farmer, 511 U.S. at 833-34, 837.
Having determined that Hagerman has established the objective component
of the deliberate indifference test, and having determined that there remain genuine
issues of material fact as to the subjective component, the Court denies
Defendants’ Motion for Summary Judgment as to the deliberate indifference claim
against Marschke, Pethke, Pingilley, and Franks.
Fourth Amendment Claim
Defendants argue, and the Court agrees, that the Complaint is devoid of any
facts that support an allegation that Defendants unreasonably searched, seized, or
used excessive force against Ryan Hagerman. Hagerman clarifies in her Response
that she does not assert a separate count under the Fourth Amendment. Hagerman
acknowledges that the Sixth Circuit has explained that a deliberate indifference
claim asserted on behalf of a pre-trial detainee is properly analyzed under the Due
Process Clause of the Fourteenth Amendment. See Phillips, 534 F.3d at 539.
Accordingly, to the extent that Hagerman claims Fourth Amendment violations,
those claims are dismissed because Ryan Hagerman was a pretrial detainee.
Municipal Liability Claim
Hagerman argues that the driving force of Defendants’ deliberate
indifference toward Ryan Hagerman’s safety while in their custody was Macomb
County and Wickersham’s failure to adequately train and supervise jail employees.
Hagerman further argues that Macomb County and Wickersham ratified the
unconstitutional behavior by failing to discipline the wrong-doers. Defendants
argue that there is no credible evidence to support a municipal liability claim.
A plaintiff asserting a Section 1983 claim under Monell “must demonstrate
that the alleged federal violation occurred because of a municipal policy or
custom.” Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013); Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 694 (1978). A plaintiff must show that his constitutional
rights were violated and that a policy or custom of the county was the “moving
force” behind the deprivation of his rights. Miller v. Sanilac Cnty., 606 F.3d 240,
254-55 (6th Cir. 2010). Accordingly, a plaintiff must demonstrate one of the
following: (1) the existence of an illegal official policy or legislative enactment;
(2) that an official with final decision making authority ratified illegal actions; (3)
the existence of a policy of inadequate training or supervision; or (4) the existence
of a custom of tolerance or acquiescence of federal rights violations. Burgess, 735
F.3d at 478.
Hagerman first asserts that Macomb County and Wickersham failed to
adequately train and supervise jail employees. A failure-to-train claim “requires a
showing of prior instances of unconstitutional conduct demonstrating that the
municipality had ignored a history of abuse and was clearly on notice that the
training in this particular area was deficient and likely to cause injury.”
(internal quotations omitted). Hagerman next asserts that Macomb County and
Wickersham ratified unconstitutional behavior. “[A] custom-of-tolerance claim
requires a showing that there was a pattern of inadequately investigating similar
A review of the record shows that Hagerman has not set forth evidence that
there were prior instances of similar misconduct so as to show that Macomb
County and Wickersham were on notice that the training and supervision of jail
employees with respect to booking and housing of assaultive inmates or
monitoring of high-observation inmates was deficient. Similarly, Hagerman has
not shown the existence of any prior instances of a failure to investigate claims of
deliberate indifference to an inmate’s right to be free from violence at the hands of
his cellmate. Accordingly, the Court grants Defendants’ Motion for Summary
Judgment as to the municipal liability claim against Macomb County and
Gross Negligence Claim
Gross negligence is “conduct so reckless as to demonstrate a substantial lack
of concern for whether an injury results.” Mich. Comp. Laws § 691.1407(7)(a). It
suggests “a willful disregard of precautions or measures to attend to safety and a
singular disregard for substantial risks.” Tarlea v. Crabtree, 263 Mich. App. 80,
90 (2004). Simply alleging that an actor could have done more or that a defendant
could have taken extra precautions is insufficient under Michigan law to sustain a
claim of gross negligence. Id.
Rather, a plaintiff must demonstrate that an
objective observer could reasonably conclude that the actor simply did not care
about the safety or welfare of those in his charge. Id.
Furthermore, the plaintiff must show that the alleged misconduct was “the
proximate cause” of the injuries. Robinson v. City of Detroit, 462 Mich. 439, 462
(2000). This means a plaintiff must show that the misconduct was the most
immediate, efficient, and direct cause of the plaintiff’s injuries. Id.
Hagerman has failed to show that Defendants’ conduct was the proximate
cause of Ryan Hagerman’s death. Even taking the evidence in the light most
favorable to Hagerman, there is no evidence establishing that Defendants’ acts
were “the one most immediate, efficient, and direct cause preceding [Ryan
Hagerman’s] injury.” Id. It was Cowans who administered the brutal beating that
ultimately led to Ryan Hagerman’s death.
Accordingly, Hagerman has not
established that Defendants were grossly negligent. See also, Dean v. Childs, 474
Mich. 914 (2005) (reversing lower court’s denial of summary disposition regarding
the alleged gross negligence of firefighters responding to a house fire by noting
that “the” proximate cause of the deaths of the decedents was the fire itself, not the
defendants’ actions in response to the fire). Summary judgment is granted in favor
of Defendants as to the gross negligence claim.
Defendants’ Motion for Leave to File Notice of Non-Party at Fault
On June 16, 2016, Defendants filed a Motion for Leave to File Notice of
Non-Party at Fault against the City of Warren and its Police Officers Krueger,
Gasser, Scott, Howlett, and VanderLinder. (Doc # 44) Defendants argue that,
although they did not file this Motion within 91 days after filing their first
responsive pleading, the Court should allow the filing of this late Notice because
Defendants could not with reasonable diligence have known the extent of the nonparties’ involvement in preparing Cowans’ jail detention card. Defendants further
assert that Hagerman will not be prejudiced by the late Notice because she has
already obtained the depositions of Krueger and Gasser, and any information that
Scott, Howlett, and/or VanderLinder may have is limited to the preparation of
Cowans’ jail detention card.
Hagerman filed a Response opposing the Motion. (Doc # 47) Hagerman
argues that Defendants do not meet the requirements for a late filing of a Notice of
Non-Party at Fault because they were in possession of the facts which form the
basis of their Motion at the time they filed their first responsive pleading in April
2015, and because the late filing will result in unfair prejudice to Hagerman.
Michigan Court Rule 2.112(K) provides a mechanism by which a defendant
can give “notice of a claim that a nonparty is wholly or partially at fault,” and
applies in federal court. See Greenwich Ins. Co. v. Hogan, 351 F. Supp. 2d 736,
738-40 (W.D. Mich. 2004).
The notice must be filed within 91 days after the party files its first
responsive pleading. On motion, the court shall allow a later filing of
the notice on a showing that the facts on which the notice is based
were not and could not with reasonable diligence have been known to
the moving party earlier, provided that the late filing of the notice
does not result in unfair prejudice to the opposing party.
Mich. Ct. R. 2.112(K)(3)(c).
At the time of Cowans’ transport from Warren to Macomb, Warren Police
Officers Krueger and Gasser gave Cowans’ jail detention card to the booking
officers at the Macomb County Jail. The jail detention card was signed by Gasser,
and it was incomplete. It omitted answers to several questions, including the
question, “Is the prisoner assaultive?” Defendants claim that they could not have
known with reasonable diligence that Cowans’ jail detention card was not prepared
by Gasser or Krueger until Krueger’s deposition on March 21, 2016. At his
deposition, Krueger testified that it was possible that Warren lock-up officers
Scott, Howlett, and/or VanderLinder may have played a role in the incident by not
properly completing Cowans’ jail detention card.
The Court finds that the facts on which Defendants’ Motion for Leave to
File Notice of Non-Party at Fault is based could with reasonable diligence have
been known to Defendants earlier. Hagerman notes that Defendants have been in
possession of the incomplete jail detention card since the outset of this litigation. It
has been part of the Macomb County Jail records since the assault on Ryan
Hagerman, and it is attached to Defendants’ dispositive Motion filed in April 2016.
Even if Krueger provided new information about the preparation of the jail
detention card in March 2016, it does not explain why Defendants could not have
filed a timely Notice of Non-Party at Fault naming the City of Warren, Krueger,
and/or Gasser. It also does not explain why Defendants waited almost three
months after Krueger’s deposition, and over two months after the filing of their
dispositive Motion to file this Motion for Leave to File Notice of Non-Party at
Fault. The Court further notes that it was Hagerman who noticed the depositions
of Krueger and Gasser in March 2016, a step that Defendants could have taken
earlier. Defendants do not appear to have taken steps to discover the identities of
the Warren officers who prepared the jail detention card, despite being in
possession of the card since Cowans’ arrival at the Macomb County Jail, despite
Krueger returning to Macomb County Jail and informing Marschke and Pethke that
Warren officers knew that Cowans had previously been assaultive while at the
Warren Jail (a conversation that was documented in a report written by Pethke in
June 2014), and despite the Complaint alleging that Krueger informed Marschke
that Cowans was assaultive toward another inmate while at the Warren Jail. The
Court concludes that Defendants were not reasonably diligent and did not
independently investigate their potential defense that Warren officers inadequately
completed Cowans’ jail detention card by failing to note his assaultive history.
The Court also finds that such a late filing of a Notice of Non-Party at Fault
would result in unfair prejudice to Hagerman. This action had been pending for
over a year and three months by the time Defendants filed their Motion for Leave
to File Notice of Non-Party at Fault in mid-June 2016. By that time, discovery had
closed, the dispositive motion cut-off date had passed, and Defendants’ dispositive
Motion had been fully briefed and heard and was under advisement. Hagerman
asserts that, had Defendants filed a timely Notice, Hagerman would have taken
additional depositions and planned her questioning from a different strategic
perspective. If the Court were to allow this late Notice, Hagerman asserts that she
would be compelled to add the City of Warren and the named Warren Police
Officers as Defendants, the new defendants would likely want to re-depose the
Macomb Officers, and the case would be forced back to square one. Hagerman
asserts, and the Court agrees, that the additional costs and significant delay would
result in unfair prejudice to Hagerman.
The Court concludes that Defendants have failed to meet the requirements
for a late filing of a Notice of Non-Party at Fault. The Court denies Defendants’
Motion for Leave to File Notice of Non-Party at Fault.
For the reasons set forth above,
IT IS HEREBY ORDERED that Defendants’ Motion for Summary
Judgment and/or Dismissal (Doc # 33) is DENIED IN PART as to the deliberate
indifference claim against Defendants Steven Marschke, Keith Pethke, Brian
Pingilley, and Amy Franks.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary
Judgment and/or Dismissal (Doc # 33) is GRANTED IN PART as to the deliberate
indifference claim against Defendant Anthony M. Wickersham in an individual
capacity, any Eighth Amendment claim, any Fourth amendment claim, the
municipal liability claim against Macomb County and Anthony M. Wickersham,
and the gross negligence claim against all Defendants.
IT IS FURTHER ORDERED that Defendants Macomb County and Anthony
M. Wickersham are DISMISSED from this action. Defendants Steven Marschke,
Keith Pethke, Brian Pingilley, and Amy Franks remain.
IT IS FURTHER ORDERED that Defendants’ Motion for Leave to File
Notice of Non-Party at Fault (Doc # 44) is DENIED.
IT IS FURTHER ORDERED that this matter is set for a Final Pretrial
Conference on May 30, 2017 at 2:30 p.m.. All parties with authority to settle must
appear at the conference. The Proposed Joint Final Pretrial Order under Local
Rule 16.2 must be submitted by May 23, 2017.
IT IS FURTHER ORDERED that the jury trial is set for June 20, 2017 at
S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: March 29, 2017
I hereby certify that a copy of the foregoing document was served upon counsel of
record on March 29, 2017, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
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