McCain v. St. Clair, County of et al

Filing 81

OPINION AND ORDER GRANTING 63 Motion for Summary Judgment; granting 65 Motion for Summary Judgment. Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

EUGENE MCCAIN,
Plaintiff,
v.

Case No. 16-10112

ST. CLAIR COUNTY, et al.,
Defendants.
/
OPINION AND ORDER GRANTING MOTIONS FOR SUMMARY JUDGMENT
Plaintiff Eugene McCain brings this action for damages under 42 U.S.C. § 1983,
claiming violations of his rights under the Eighth and Fourteenth Amendments stemming
from two seizures he suffered while awaiting trial in the St. Clair County Jail. (See Dkt. #
4.) Before the court are two motions for summary judgment: one (Dkt. # 63) filed by
Defendants Kimberly King, Brandy Scheimen, and Amanda Bishop, all licensed
practical nurses (“LPNs”) (collectively “Defendant LPNs”); the other (Dkt. # 65) filed by
Defendants Sergeant Richard Olejnik, Deputy Matthew Methany, Deputy Brandon
Rogers, Deputy Brook Schmidt, Deputy Ryan Kacafirek, and Deputy Richard Kaminsky
(collectively “Defendant Officers”) and St. Clair County.1 Defendant LPNs’ motion is fully
briefed. (Dkt. ## 63, 71, 75.) Plaintiff filed a response (Dkt. # 72) to the motion by
Defendant Officers and St. Clair County, to which those defendants replied (Dkt. # 77).
The parties then stipulated to allowing Plaintiff to file an amended response, which he
did on June 1, 2017. (Dkt. # 80.) Defendants have declined to reply to the amended
1

Several other Defendants joined in the motions, but have since been dismissed by
stipulation. (See Dkt. ## 67, 68, 79.) The court will ignore those former defendants for
the purposes of this motion.

response. After reviewing the extensive briefing, and with the benefit of a hearing held
July 12, 2017, the court will grant both motions.
I. BACKGROUND
The following facts are undisputed unless otherwise noted. On Saturday, March
2, 2013, Plaintiff was arrested and brought to the St. Clair County Jail for booking. He
was booked at 10:25 p.m. (Dkt. # 71-14.) Defendant Sheriff’s Deputy Methany did the
intake and filled out a medical screening form for Plaintiff. (Dkt. # 71-1, Pg. ID 1180.) On
that form, Deputy Methany noted that Plaintiff answered “yes” to questions regarding
epilepsy and seizure disorder, noted that Plaintiff was taking Tegretol for the condition,
and that he had last taken his medication at 4 p.m. that day. (Id. at Pg. ID 1181.)
Plaintiff had his medication on him at the time he was arrested, but the arresting officer
told him he would not be able to bring it into the jail, so he left it with his mother. (Dkt. #
65-2, Pg. ID 738-39.)
Deputy Methany also indicated that Plaintiff’s prescription was from “Family
Pharmacy.” (Id.). In fact, Plaintiff did not have a prescription with Family Pharmacy—
though had been filling a prescription for Tegretol at a pharmacy called “Blue Water
Pharmacy” and had last filled a 30-day supply on January 25, 2013. (Dkt. # 65-46.)
After filling out the intake form, Deputy Methany placed the form in a metal bin for
the medical personnel to pick up. (Id. at Pg. ID 1185.) It was the regular practice of the
jail nurses to go down to the assessment area multiple times per shift to pick up the
medical screening forms from this basket. (Dkt. # 71-12, Pg. ID 1464; Dkt. # 71-3, Pg.
ID 1261.) The nurse would then attempt to verify the medication by contacting the listed
pharmacy. If the pharmacy verifies the prescription, the nurse is allowed to order the

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medications. (Dkt. # 65, Pg. ID 684; Dkt. # 80, Pg. ID 1820.) Otherwise, the nurses must
consult with the doctor on call to order prescriptions, as the nurses are not allowed to
prescribe medication.
Defendant Nurse Bishop was on duty at the time Plaintiff was booked, working
the 7 p.m. to 7 a.m. shift. Nurse Bishop cannot recall the events of March 2, 2013 due to
the passage of time. (Dkt. # 65, Pg. ID 683; Dkt. # 80, Pg. ID 1820.) Nobody involved
recalls when the medical screening form was picked up, and Nurse Bishop could not
recall if she had ever seen the form or spoken to Plaintiff (Dkt. # 65-24, Pg. ID 915-17).
Nurse Bishop did not order Plaintiff’s medication before the end of her shift.
There is no evidence that Plaintiff made any follow-up requests for medication,
submitted a medical request or “kite,” or filed a grievance over not receiving his
medication after being placed in a holding cell. (Dkt. # 65, Pg. ID 686; Dkt. # 80, Pg. ID
1821.) There is no evidence in the record as to which nurse was on duty for the 7 a.m.
to 7 p.m. shift the following day, March 3. Nurse Bishop again worked the 7 p.m. to 7
a.m. shift from March 3 to March 4. Plaintiff’s medication was not ordered on March 3,
and the record is silent as to whether anyone attempted to verify his medication.
At approximately 5:30 in the morning of Monday, March 4, 2013, Plaintiff had a
seizure while in “9 cell[,]” which he shared with several other inmates. (See Dkt. # 6522.) A video of the incident depicts the activities in the cell prior to and during the
seizure. The video shows breakfast being served to the inmates, Plaintiff taking food
from another inmate’s breakfast tray, and then laying down along with the other inmates
to return to sleep. Plaintiff then begins to seize, and once the other inmates notice they

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begin banging on the glass wall of the cell. This occurred at approximately 6:25 or 6:30
a.m.2
As shown on the video and uncontested by the parties, Defendant Deputy
Rogers was the first to respond, arriving at the cell approximately 48 seconds after the
inmates began to summon help. Defendants Deputy Kaminsky, Deputy Methany,
Deputy Kacifirek, and Sgt. Olejnik arrived shortly after to provide assistance, as did Sgt.
Labeau, who is not a defendant. (Dkt. # 65-22, Pg. ID 985.) The cellmates were
removed from the cell less than 30 seconds later and Defendant Nurse Bishop,
summoned by Deputy Rogers, appeared slightly more than one minute after Deputy
Rogers and provides first aid to Plaintiff. The deputies assisted with securing Plaintiff,
who was flailing his arms and legs and, when instructed by Nurse Bishop, turned
Plaintiff on his left side. (See Dkt. # 65-22.)
After Nurse Bishop determined that Plaintiff was able to move on his own, open
his eyes, and understand his surroundings, she ordered that Plaintiff be placed on “30
minute rounds” in “5 cell,” which is a glass-walled cell near the officer’s desk in the
assessment area. (Dkt. ## 65-25, 65-49.) Nurse Bishop did not check McCain’s vitals,
consult a doctor, or do anything to expedite the process of getting Plaintiff’s anti-seizure
medication. Someone—at least some evidence suggests that it was Nurse Bishop—
then ordered the medication, and apparently signed the relevant authorization as Dr.
Stromberg, the jail doctor, who was then on vacation and had not been consulted. (Dkt.
# 71-4, Pg. ID 1309.)

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The parties agree that the time stamp on the video is incorrect—between 46 and 52
minutes slow. (Dkt. # 65, Pg. ID 687; Dkt. # 72, Pg. ID 1509.)
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An inmate placed on 30-minute rounds is visually observed regularly by the
corrections deputies to monitor for any distress. (Dkt. # 65-39.) Between 7:00 a.m. and
2:00 p.m., Plaintiff was observed approximately every 30 minutes by either Deputy
Shane Walker or Deputy Jonathan Lembas, who are no longer Defendants in this
action. (Dkt. # 65-50.)
Advanced Care Pharmacy opened the prescription request at approximately 8:54
a.m. that morning, and filled Plaintiff’s Tegretol prescription at 10:17 a.m., along with
several other inmate prescriptions. (See Dkt. # 65-37, Pg. ID 1027, 1029.) The
medication was delivered to the jail at approximately 11:05 a.m. on March 4, 2014. (Id.
at Pg. ID 1029.) The next medication pass in the assessment area was to take place
around 3:00 p.m. (Dkt. # 65-26, Pg. ID 934.)
Plaintiff was arraigned by video conferencing between 1:43 and 1:46 p.m. He
was informed he could face up to life in prison as a repeat offender, and his bond was
set at $15,000. While making his 30-minute rounds at 2 p.m.,3 Deputy Walker observed
Plaintiff sitting by the phones next to 5 Cell. (Dkt. # 65-23, Pg. ID 902; Dkt. # 65-20, Pg.
ID 883-84.) Deputy Walker asked Plaintiff if he was okay, and Plaintiff responded “yes,
my bond is just a lot[.]” (Dkt. # 65-23, Pg. ID 902.) Deputy Walker then returned to
assessment office work area. (Id.)
After Deputy Walker returned to the officer work area, he noticed Plaintiff stand
up near the phone. Plaintiff “did not appear to be acting normal” and looked like “he was
having a tough time maintaining his balance[.]” (Dkt. # 65-23.) Deputy Walker then
3

The parties agree that Deputy Walker’s incident report (Dkt. # 65-23) incorrectly
identifies the time at 3 p.m., the time stamp on the video is approximately 48 minutes
slow, and that the correct time is approximately 2 p.m. (Dkt. # 65, Pg. ID 690; Dkt. # 80,
Pg. ID 1822.)
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advised Plaintiff to have a seat in the chairs in a front of a television used by inmates in
a carpeted portion of the assessment area, which Plaintiff did. (Id.) Walker left the
officer workstation to attend to Plaintiff. (Id.)
Deputy Walker then noticed that Plaintiff was sweating profusely and not
responding to questions, so he summoned medical staff. (Id.) Plaintiff was also making
involuntary movements of his arms and head, and emitting a strange scream. (Id.)
Deputy Walker then grabbed Plaintiff’s shirt and supported his head. (Id.) Video
capturing part of the incident shows that that a second officer arrived less than a minute
after Deputy Walker left the work station, with Defendant Sgt. Olejnik arriving 23
seconds later. Defendants Nurse Scheiman and Nurse King arrive slightly more than 2
minutes after Deputy Walker first left the workstation to attend to Plaintiff, approximately
2:04 p.m. (Id.)
Sgt. Olejnik, Deputy Zuehlke, and Lt. Biondo all assisted to try to control Plaintiff,
who was seizing and thrashing about. (Dkt. # 65-23.) According to the relevant nurse
notes, Nurse Schieman tried without success to bring Plaintiff out of his seizure using
ammonia, and was unable to take his vitals because of his violent thrashing. (Dkt. # 6525.) Nurse Schieman decided that Plaintiff should be transported to the hospital by
ambulance, and one arrived at the jail at 2:15 p.m. (Dkt. # 65-23.) The deputies helped
Tri Hospital EMS personnel place Plaintiff on a stretcher, and he was transported to the
hospital. (Dkt. # 66-51.)
Plaintiff was then diagnosed with a subarachnoid bleed in his brain. He was
hospitalized for a few weeks, lapsed into a coma, had surgery to relieve the pressure on

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his brain, experienced renal failure, and underwent additional surgery on his arm for
compartment syndrome. (Dkt. # 65, Pg. ID 692-93; DKt. # 80, Pg. ID 1822-23.)
II. STANDARD
Summary judgment is proper “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). “In deciding a motion for summary judgment, the court must
view the evidence in the light most favorable to the non-moving party, drawing all
reasonable inferences in that party’s favor.” Sagan v. United States, 342 F.3d 493, 497
(6th Cir. 2003). The movant has the initial burden of showing the absence of a genuine
dispute as to a material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “[T]hat
burden may be discharged by showing . . . that there is an absence of evidence to
support the nonmoving party’s case.” Bennett v. City of Eastpointe, 410 F.3d 810, 817
(6th Cir. 2005) (internal quotation marks omitted). The burden then shifts to the
nonmovant, who must put forth enough evidence to show that there exists “a genuine
issue for trial.” Horton v. Potter, 369 F.3d 906, 909 (6th Cir. 2004) (citation omitted).
In evaluating a summary judgment motion, “the court need consider only the
cited materials, but it may consider other materials in the record.” Fed. R. Civ. P.
56(c)(3). Summary judgment is not appropriate when “the evidence presents a sufficient
disagreement to require submission to a jury.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 243 (1986). To do so, the evidence must amount to more than a “scintilla.” Id.
(“The mere existence of a scintilla of evidence in support of the plaintiff’s position will be
insufficient.”). However, if that threshold is reached, “the judge’s function is not himself
to weigh the evidence and determine the truth of the matter but to determine whether

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there is a genuine issue for trial . . . credibility judgments and weighing of the evidence
are prohibited.” Moran v. Al Basit LLC, 788 F.3d 201, 204 (6th Cir. 2015) (internal
quotation marks and citations omitted).
III. DISCUSSION
Defendants argue that the individual officers are entitled to qualified immunity.
The doctrine of qualified immunity shields government officials “from liability for civil
damages if their actions did not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Webb v. U.S., 789 F.3d 647,
659 (6th Cir. 2015) (quoting Meals v. City of Memphis, 493 F.3d 720, 729 (6th Cir.
2007)). The analysis involves a two-step inquiry: (1) whether, viewing the record in the
light most favorable to Plaintiff, a constitutional right has been violated; and (2) whether
the right at issue was “clearly established” at the time. Id. Courts may address either
prong first. Pearson v. Callahan, 555 U.S. 223, 236 (2009). Moreover, Plaintiff must
show “that each [Defendant] officer, through his or her own actions, personally violated
[P]laintiff's rights under clearly established law. Johnson v. Moseley, 790 F.3d 649, 653
(6th Cir. 2015) (emphasis in original) (citations omitted)). Prior courts have held that
denying or delaying anti-seizure medication for prisoners can violate the Eighth and
Fourteenth Amendments. See, e.g., Parsons v. Caruso, 491 F. App’x 597, 602 (6th Cir.
2012) (collecting cases). As a result, the court finds that this proposition was clearly
established in 2013, when Plaintiff suffered his seizures.
Where prison officials are so deliberately indifferent to the serious medical needs
of prisoners as to unnecessarily and wantonly inflict pain, they impose cruel and
unusual punishment in violation of the Eighth Amendment. Estelle v. Gamble, 429 U.S.

8

97, 104 (1976). Pretrial detainees are analogously protected from such mistreatment
under the Due Process Clause of the Fourteenth Amendment. Bell v. Wolfish, 441 U.S.
520, 545 (1979). To show a Fourteenth Amendment violation based on deliberate
indifference, Plaintiff must prove that, objectively, McCain had “a serious medical need”
and that, subjectively, each individual Defendant had “a sufficiently culpable state of
mind” with respect to his condition. Johnson v. Karnes, 398 F.3d 868, 874 (6th Cir.
2005) (citations and internal question marks omitted).
Defendant LPNs argue that Plaintiff’s need for medical care was not objectively
serious. In response, Plaintiff contends the Sixth Circuit has explicitly held that two-day
delay in medication for a seizure disorder is an objectively serious medical need,
pointing to Parsons, 491 F. App’x at 602. (Dkt. # 71, Pg. ID 1164-65.) But the parties in
Parsons did not dispute this issue, see id. at 601 (“The defendants do not contest that
Parsons had a sufficiently serious medical need[.]”), so that court’s alleged “holding”
was nothing more than an assumption.
In the Sixth Circuit, “a medical need is objectively serious if it is one that has
been diagnosed by a physician as mandating treatment or one that is so obvious that
even a lay person would easily recognize the necessity for a doctor's attention.”
Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 895 (6th Cir. 2004) (internal quotation
marks omitted and emphasis removed). “[T]he seriousness of a prisoner's medical
needs may also be decided by the effect of delay in treatment.” Id. at 897. (internal
quotation marks and emphasis removed).
Defendant LPNs assert that Plaintiff must place “verifying medical evidence in
the record to establish the detrimental effect of the delay[,]” relying on Napier v.

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Madison Cnty., 238 F.3d 739, 742 (6th Cir. 2001). (Dkt. # 75, Pg. ID 1654.) In
Blackmore, the Sixth Circuit explained that “the ‘verifying medical evidence’ requirement
is relevant to those claims involving minor maladies or non-obvious complaints of a
serious need for medical care.” Blackmore, 390 F.3d at 895. “In a word, Napier does not
apply to medical care claims where facts show an obvious need for medical care that
laymen would readily discern as requiring prompt medical attention by competent health
care providers.” Id.
In Blackmore, the significant factor was not whether the delay in treating the
plaintiff’s appendicitis caused his appendix to burst, but that he complained of “sharp
and severe stomach pains for an extended period of time[,]” and vomited, “a clear
manifestation of internal physical disorder.” Id. at 899. This created a medical need “so
obvious” that a lay person would see the need for care—and the ongoing delay
“create[d] the constitutional infirmity” regardless of the risks in delaying treatment
further. Id. Similarly, in Estate of Carter v. City of Detroit, 408 F.3d 305, 312 (6th Cir.
2005), the Sixth Circuit found that a prisoner displaying the “classic symptoms” of an
impending heart attack, combined with stating she was three days behind in her heart
medication, obviously demanded immediate treatment and “satisfied the objective
requirement.” Id. In an unreported case, the Sixth Circuit has also found diagnosed
paranoia and schizophrenia—requiring medication—to be obvious medical needs. See
Gunther, 561 Fed. App’x at 502.
Here, Plaintiff presented with no outward symptoms, no current prescription or
regular doctor, and made no complaints about his medication after booking. The court is
inclined to find this case is closer to the non-obvious kidney disease requiring regular

10

dialysis seen in Napier than “recurring incontinence and debilitating immobility,” Taylor
v. Franklin Cnty., 104 Fed. App’x 531 (6th Cir. 2004); the severe stomach pain and
vomiting in Blackmore, 390 F.3d at 899; or the “classic symptoms” of an impending
heart attack seen in Estate of Carter, 408 F.3d at 312. However, because the court will
conclude that Plaintiff does not meet the subjective prong with respect to any
Defendant, it need not resolve this question.
Plaintiff must also show that each individual Defendant had a “sufficiently
culpable mental state.” Johnson, 398 F.3d at 874. The relevant question is whether
each Defendant “inferred a substantial risk of harm” and “consciously disregarded that
risk.” Gunther, 561 Fed. Appx. at 502. An official’s “failure to alleviate a significant risk
that he should have perceived but did not, while no cause for commendation, cannot
under our cases be condemned as the infliction of punishment.” Perez v. Oakland Cnty.,
466 F.3d 416, 423 (6th Cir. 2006) (quoting Farmer v. Brennan, 511 U.S. 825, 838
(1994)).
A. Defendant Officers
Plaintiff argues that Defendant Officers each violated Plaintiff’s Eighth
Amendment rights by failing to immediately inform medical personnel of his seizure
disorder and failing to immediately secure seizure medication for him. (Dkt. # 80, Pg. ID
1835-38.) Defendant Officers’ motion does not dispute that a seizure disorder is an
objectively serious medical need—rather, Defendant Officers argue that Plaintiff cannot
show that any officer “actually perceived facts from which to infer that there was a
substantial risk of harm to Plaintiff, actually drew that inference, and disregarded that
risk. (Dkt. # 65, Pg. ID 696.) The court agrees.

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First, with respect to Defendant Deputy Methany, the court finds that Plaintiff
could only establish negligence, not deliberate indifference. The parties agree that
Deputy Methany asked Plaintiff about any seizure disorder, asked Plaintiff about his
medications and where he filled them, indicated Plaintiff’s responses on the medical
questionnaire, and deposited the form in the box for medical staff to review. The parties
dispute whether this complied with the jail’s written policy at the time, but there is no
dispute that this was the procedure regularly followed in practice. Defendants point to
abundant testimony that these forms would ordinarily be picked up regularly and
reviewed shortly after. (See Dkt. # 65, Pg. ID 683; Dkt. # 77, Pg. ID 1679-80.) Given
that the nurses normally would pick up the forms during the 11 p.m. medication pass
(id.), Deputy Methany had no reason to believe the necessary information would not be
communicated to the medical staff within the hour. In any event, the form certainly
would have been with the medical staff at the beginning of the 7 a.m. Sunday shift, with
plenty of time to obtain medication for Plaintiff within the 24-hour period within which Dr.
Stromberg testified that he would expect medication to be secured. (Dkt. # 80-3, Pg. ID
1886.) Plaintiff points to nothing in the record to suggest that Deputy Methany inferred
that this timeline would represent a substantial risk to Plaintiff’s health. Put another way,
nothing in the record suggests that Deputy Methany understood the situation to be an
emergency that called for him to take any immediate action.
The parties dispute whether Deputy Methany’s actions complied with the written
policy in place in the jail at the time. Nevertheless, even assuming that Deputy Methany
failed to comply with the written policy, the court finds the record can support no more
than an arguable claim of negligence against Deputy Methany. The bar for deliberate

12

indifference, of course, is considerably higher. Perez v. Oakland County, 466 F.3d 416,
423 (6th Cir. 2006) (“Negligence or medical malpractice alone cannot sustain an Eighth
Amendment claim, absent a showing of deliberate indifference.”) (citing Estelle, 429
U.S. at 105-06).
The court makes a similar finding with respect to Deputy Fleming. Deputy
Fleming met with Plaintiff shortly after he was booked for classification purposes. (Dkt. #
77-13, Pg. ID 1765-66.) Deputy Fleming already knew Plaintiff had seizures from his
previous stays in the jail and double-checked to ensure that the correct medication
information was on the form. (Id.) The court finds that Deputy Fleming’s actions did not
demonstrate deliberate indifference—quite the opposite, he took extra steps to ensure
that Plaintiff would receive the correct medication. Otherwise, for the same reasons
articulated with respect to Deputy Methany, that Deputy Fleming did not immediately
and independently notify the medical staff cannot show deliberate indifference.
Accordingly, Defendant Officer’s motion must be granted with respect to Deputy
Fleming.
The motion must also be granted with respect to the remaining Defendant
Officers. The “Underlying Material Facts” section of Plaintiff’s amended response avers
that Plaintiff “repeatedly told jail officers, including Defendant Deputies Methany,
Olejnik, Rogers, Kaminsky, Kacafirek, and Fleming, as well as medical staff that he
required his medication.” (Dkt. # 80.) But Plaintiff points to nothing in the record to
support this statement, and Plaintiff expressly “does not contest” Defendant’s statement
that “[a]fter Plaintiff was placed in a holding cell, there is no evidence [Plaintiff] made
any follow up requests for his medication . . . . submit[ed] a medical kite[,] or fil[ed] a

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grievance over not receiving his medication. (Compare Dkt. # 65, Pg. ID 687 with Dkt. #
80, Pg. ID 1821.) Plaintiff does point to deposition testimony in which he states that he
asked one of the deputies “for [his] meds” about two hours after being booked (Dkt. #
80-6, Pg. ID 1962), but cannot identify which deputy despite knowing many by name
(Id). From his testimony, it is not clear that he even asked a Defendant, as opposed to
some other deputy. Further, this alleged request could not have been to Deputy
Kaminsky, Deputy Kacafirek, or Deputy Olejnik, who did not work the relevant shift.
(See Dkt. # 80, Pg. ID 1826-27.) The record suggests that during the booking process
Plaintiff spoke only to Deputy Methany and Deputy Fleming about his seizures and
medication.
Essentially, Plaintiff’s scattergun theory is that because Plaintiff had a seizure
disorder, everyone on duty during the time he had not received medication violated his
Eighth Amendment right to be free from cruel and unusual punishment. Even assuming
Plaintiff’s primary contention—that each of these defendants failed to notify medical
staff immediately upon learning that Plaintiff had a seizure disorder—the court finds this
to be an allegation of mere negligence, not of the higher standard of deliberate
indifference. Plaintiff points to nothing in the evidence to suggest that these defendants
“inferred a substantial risk of harm” to Plaintiff, much less that they “consciously
disregarded that risk.” See Gunther, 561 Fed. Appx. at 502.
Further, Plaintiff does not make any kind of particularized showing with regard to
these defendants. In the Sixth Circuit, "damages claims against government officials
arising from alleged violations of constitutional rights must allege, with particularity, facts
that demonstrate what each defendant did to violate the asserted constitutional right."

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Marcillis v. Twp. of Redford, 693 F.3d 589, 596 (6th Cir. 2012) (quoting Lanman v.
Hinson, 529 F.3d 673, 684 (6th Cir. 2008)) (emphasis in original). Plaintiff points to
nothing in the record to show when the medical staff became aware of Plaintiff’s
condition and lack of medication and, consequently, nothing to show that each particular
Defendant learned of the situation before the medical staff. Thus, the court is left without
any way to determine whether these deputies consciously disregarded a risk to
Plaintiff’s health, or simply deferred to the judgment of the medical staff. Plaintiff’s
generalized theory of liability must fail. Id.
Finally, the motion must also be granted with respect to Defendant St. Clair
County. A municipality may be held liable under § 1983 only “when execution of a
government’s policy or custom, whether made by its lawmakers or by those whose
edicts or acts may fairly be said to represent official policy, inflicts the injury.” Monell v.
Dep’t of Social Servs., 436 U.S. 658, 691 (1978). For municipal liability, there must be
an “affirmative link between the policy and the particular constitutional violation alleged.”
Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985).
Plaintiff contends that “St. Clair County’s policy of having intake deputies relay
information, or in this case simply place medical screening forms in a bin, is
unconstitutional . . . . There was no adequate procedure in place to ensure that the
information was timely communicated to medical staff.” (Dkt. # 80, Pg. ID 1840.) Even
though “§ 1983 municipal-liability jurisprudences distinguishes between ‘policy’ and
‘custom[,]’” Ford v. County of Grand Traverse, 535 F.3d 483, 496 (2008), the parties do
not make that distinction clear.4 Plaintiff, for instance, contends that “Deputy Methany

4

The distinction turns on how to establish the existence of an actionable policy or
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did not follow the policy in place at the time that [Plaintiff] was jailed” (Dkt. # 80, Pg. ID
1818) and that under the policy in place at the time, Plaintiff “should have been
immediately referred to medical for evaluation” (Id. at Pg. ID 1837). But when
characterizing the claim against county, Plaintiff describes the challenged practice as
“the unconstitutional policy of placing medical screening intake forms in a bin, as
opposed to having a process that ensures the forms are timely communicated to
medical personnel.” (Id. at Pg. ID 1838.) It appears that Plaintiff’s theory, then, is that
the written policy required immediate referral, but Plaintiff is challenging the unwritten
practice that was actually followed.
In any event, even assuming for the purposes of this motion that this process
rises to the level of a “custom or usage with the force of law” for the purposes of Monell,
436 U.S. at 691, Plaintiff’s Monell claim must fail. Plaintiff’s claim is fundamentally that
there is a custom or policy of inaction—that the jail policy was failing to treat a patient
with a seizure disorder but without medication as an emergency. To recover under such
a theory, Plaintiff must show (1) the existence of a “clear and persistent pattern” of
mishandled medical emergencies for pre-arraignment detainees; (2) notice, or
constructive notice of such a pattern; (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
violation. See Garretson v. City of Madison Heights, 407 F.3d 789, 796 (6th Cir. 2005).
custom. Compare Miller v. Calhoun Cnty., 408 F.3d 803, 813 (6th Cir. 2005) (“Municipal
liability may attach for policies promulgated by the official vested with final policymaking
authority for the municipality.”) with Memphis Tenn. Area Local, Am. Posal Workers
Union v City of Memphis, 361 F.3d 898, 902 (6th Cir. 2004) (“A municipal ‘custom’ may
be established by proof of the knowledge of policymaking officials and their
acquiescence in the established practice.”)
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Plaintiff points to no evidence of a pattern of mishandled medical emergencies.
Put another way, Plaintiff points to no evidence to show that the county’s policy “meets
the stringent standard of deliberate indifference” on the part of the relevant decisionmakers, Ford, 535 F.3d at 498, rather than simply being somewhat less than ideal. As a
result, Plaintiff cannot show that the custom or policy evidences deliberate indifference
on the part of the county. See Garretson, 407 F.3d at 789; see also Miller, 408 F.3d at
815-16; Esch v. Cnty. of Kent, 2016 U.S. Dist. LEXIS 132069, *10 (W.D. Mich. Sept. 27,
2016) (granting summary judgment to county where the plaintiff did not show other
instances of violations based on the alleged policy). Further, as the court has concluded
that Plaintiff cannot establish that any Defendant Officer violated Plaintiff’s constitutional
rights, the policy itself could not have been the “moving force” behind a constitutional
violation by Defendant Officers. Tuttle, 471 U.S. at 823.
B. Defendant LPNs’ motion
Plaintiff does not challenge the adequacy of the care provided by the nurses in
response to his seizures. Instead, Plaintiff contends that Defendant LPNs’ failure to
secure medication before he suffered his seizures constituted deliberate indifference.
(Dkt. # 71, Pg. ID 1165.)
The record is substantially underdeveloped with respect to the conduct of
Defendant LPNs. It is unknown when the medical intake form reached the nurses and
when it was first reviewed. The record does not establish which nurse was on duty for
the 7 a.m. to 7 p.m. shift on Sunday, March 3,5 or whether someone attempted to verify
Plaintiff’s medications before he suffered his first seizure on Monday morning. Plaintiff
5

During oral argument, defense counsel indicated that the nurse on duty for the day
shift on Sunday is known, but is not named as a party.
17

contends that no nurse attempted to verify Plaintiff’s medication before he suffered a
seizure, and no doctor was consulted until after Plaintiff’s second seizure. (Dkt. # 80,
Pg. ID 1821.) Given the absence of evidence in the record to the contrary, the court
finds these to be reasonable inferences from the evidence in the record that the court
must make for the purposes of this motion. See Sagan, 342 F.3d at 497.
Plaintiff contends that Nurse Schieman “was on-duty Sunday, March 3, 2013,
after Nurse Bishop, working the 7 a.m. to 7 p.m. shifts March 3 and 4.” (Dkt. # 71, Pg.
ID 1149.) But in the deposition testimony Plaintiff relies on in support, Nurse Schieman
testifies only that she worked on the 4th and did not know who worked on the 3rd. (Dkt.
# 71-3, Pg. ID 1260.) Plaintiff points to nothing in the record that actually supports his
claim that Nurse Schieman worked on the 3rd.
Nurse Schieman’s shift on March 4 did not begin until 7 a.m., after Plaintiff had
experienced his first seizure and after Nurse Bishop had ordered his anti-seizure
medication. Nurse Schieman responded to Plaintiff’s second seizure—the only one she
was present for—provided supportive care, conducted a limited evaluation, and an
ambulance was called shortly after. The court concludes that there is no genuine
dispute of fact material to whether Nurse Schieman was deliberately indifferent or
grossly negligent with respect to Plaintiff’s medical needs—she provided care that could
not reasonably be found to be “so cursory or inadequate as to amount to no treatment
at all”—therefore summary judgment is appropriate. Terrance v. Northville Reg’l
Psychiatric Hosp., 286 F.3d 834, 843-44 (6th Cir. 2002) (citation omitted).
Defendant LPNs’ motion must also be granted with respect to Nurse King.
Plaintiff argues only that Nurse King “knew that [Plaintiff] had suffered a seizure in the

18

morning before her shift stared on March 4 . . . . [,] knew . . . that [Plaintiff] had not
received any seizure medication since he was booked on March 2, . . . [and] admitted
that she was familiar with seizures and knows that they can pose a life[-]threatening
condition.” (Dkt. # 71, Pg. ID 1172.) But as Plaintiff acknowledges, Plaintiff’s medication
was ordered before Nurse King even began her shift, and Nurse Schieman was
providing treatment in response to the second seizure before Nurse King arrived on the
scene. It is not clear what more Plaintiff believes Nurse King was constitutionally obliged
to do, but the evidence in the record, viewed in the light most favorable to Plaintiff, does
not support Plaintiff’s overblown contention that “the ‘care’ that Nurse King provided was
grossly substandard so as to be reckless.” (Id.) As a result, the court must grant
Defendant LPNs’ motion with respect to Nurse King.
Nurse Bishop was the nurse on duty at the time Plaintiff was jailed and worked
the 7 p.m. to 7 a.m. shift from March 3 to March 4, when Plaintiff suffered his first
seizure. Nurse Bishop testified that she could not recall whether she ever actually
received the form. (Dkt. # 63, Pg. ID 414.) Plaintiff argues that “Nurse Bishop clearly
received [Plaintiff’s] Medical Screening Form filled out by the Assessment officer, but
simply chose to ignore it.” (Dkt. # 71, Pg. ID 1168.)
Plaintiff’s contention relies entirely on the nurses’ testimony that the standard
practice was to pick the forms up multiple times per shift, including during medication
passes, and that Nurse Bishop testified she would have done medication passes at 11
p.m. and 5 a.m. (Dkt. # 71-2, Pg. ID 1226.) From the mere existence of this practice,
Plaintiff seeks to prove that Nurse Bishop actually collected the form and, after
collecting it, read it; understood that Plaintiff would be missing doses and the risks that

19

posed; and decided to take no action. While this evidence of routine or standard
practice would be admissible to show that Nurse Bishop picked up the form under FRE
406(b), courts “distinguish[] the admissibility of evidence from its sufficiency” for the
purposes of a motion for summary judgment. Hirsch v. CSX Transp., Inc., 656 F.3d 359,
362 (6th Cir. 2011) (“Even where an expert’s evidence is ruled admissible under the
Daubert standards, a district court remains free to decide that the evidence amounts to
no more than a mere scintilla. In that case, the court remains free to grant summary
judgment.”) (internal citation omitted) (emphases in original). The court “draws all
reasonable inferences” in Plaintiff’s favor, Sagan, 342 F.3d at 497, but not all inferences
are reasonable—particularly not where, as here, the court is asked to draw a series of
inferences from a sliver of evidence far removed from the substantive issue. Cf. Hamm
v. City of Gahanna, Ohio, 109 Fed. App’x 744, 748-49 (6th Cir. 2004) (affirming grant of
summary judgment and finding that residents’ statements to planning commission and
city council were no more than a scintilla of evidence of discriminatory intent in zoning
decision); Jackson v. Agency for Persons with Disabilities Flordia, 608 Fed. App’x 740,
743-44 (7th Cir. 2015) (finding mere fact that plaintiff’s termination was close in time to
eye surgery was “no more than a ‘scintilla’ of evidence” to find former employer’s
proffered legitimate reason pretextual). The court finds that the evidence Nurse Bishop
actually collected and read the form—and therefore knew about Plaintiff’s condition the
night he was booked—amounts to no more than a scintilla and, therefore, is insufficient
to support Plaintiff’s claim. See Anderson, 477 U.S. at 252.
Even assuming that Nurse Bishop did know that Plaintiff had a seizure condition,
had last taken Tegretol at 4 p.m., and would not receive his medication until the

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afternoon of June 4th, Nurse Bishop testified she would not have been concerned. (Dkt.
# 71-2, Pg. ID 1229.) Nurse Bishop’s understanding was that most seizure medications,
including Tergetol, worked by reaching and maintaining a “therapeutic level” in the
patient’s bloodstream, and because Plaintiff had taken his medication that evening, she
would not expect his level to drop below therapeutic before Monday. (Id. at Pg. ID
1223.) She also testified that she would not be concerned even after he had suffered
one seizure. (Id. at Pg. ID 1238.) Nurse Schieman agreed with this contention,
explaining that “people have seizures all the time” and that his screening form indicated
that “he had medication Saturday at 4:00 and he would have been fine until Monday
when he got his medication.” (Dkt. # 63, Pg. ID 579.) Nurse King concurred. (Id. at Pg.
ID 606.)
Thus, evidence in the record suggests that Nurse Bishop did not in fact perceive
a substantial risk to Plaintiff’s health from a two-day delay in receiving his medication,
even if she had known about his seizure disorder and lack of medication. Plaintiff
repeatedly claims that all three LPN Defendants knew “that not getting seizure
medication to someone with a seizure disorder can cause the onset of seizures and
lead to harm.” (Dkt. # 71, Pg. ID 1165.) With respect to Nurse Bishop, Plaintiff asserts
that “Nurse Bishop admitted that she knew that a seizure disorder is a serious condition,
and that suddenly stopping the medication is not recommended and can lead to the
onset of a seizure.” (Id. at Pg. ID 1169.) But Plaintiff once again provides no citation to
the record to support this assertion.6 (Id.) And, as discussed above, Nurse Bishop

6

Here and elsewhere in his briefings, Plaintiff makes factual claims without any citation
to the record for support. The court has no obligation to search the record beyond
where the parties cite. See Fed. R. Civ. P. 56(c)(3). As the Seventh Circuit has
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testified she would not be concerned about Plaintiff missing a couple of doses, or
having his medication delayed by two days, because she would not expect his
medication to drop below the therapeutic level. (Dkt. # 71-2, Pg. ID 1226.) Nurse Bishop
and her co-defendants may well have been wrong about this, and about the risks such
an interruption may have posed to Plaintiff’s health, but “failure to alleviate a significant
risk that [s]he should have perceived but did not, while no cause for commendation,
cannot under our cases be condemned as the infliction of punishment.” Perez, 466 F.3d
at 423 (citation omitted).
It is helpful to contrast the record here with a similar case. See Bays v.
Montmorency Cnty., 2016 WL 6777850 (E.D. Mich. November 16, 2016) (Cleland, J.).
The plaintiff in Bays complained of severe mental health issues. Id. In denying the jail
nurse’s summary judgment, this court discussed the variety of circumstantial evidence
in the record that suggested the nurse in fact inferred and disregarded a substantial risk
of harm. Id. at *5. In particular, the court pointed out that the deceased inmate had
repeatedly sought out treatment for his severe mental health issues, had seen the
defendant four times in ten days, and the nurse’s notes described the decedent’s stated
symptoms in detail. Id. The nurse had repeatedly asked the decedent if he was suicidal,
testified that she had believed he should be watched closely, and twice called to
schedule an earlier appointment. Id. This evidence created a jury question as to
whether the nurse was aware of a serious need for relatively immediate treatment. Id.
The court also held a reasonable jury could conclude that the nurse consciously
explained, “[j]udges are not like pigs, hunting for truffles buried in briefs.” United States
v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991). Where the court notes that Plaintiff has
failed to cite to support in the record, the court concludes that no such support exists.
See Fed. R. Civ. P. 56(e).
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disregarded that risk by giving the decedent Benadryl and going home for the weekend
without communicating the nature or severity of his condition to anyone. Id. at *7.
Unlike in Bays, Plaintiff points to no more than a scintilla of evidence that Nurse
Bishop was aware of his medical condition. Even assuming that she had been aware,
Plaintiff points to nothing in the record to contradict her statements, echoed by Nurse
Schieman and Nurse King, that she would not have believed there to be a substantial
risk to Plaintiff’s health. Plaintiff points to no circumstantial evidence to show that any
risk of harm to Plaintiff would have been obvious to Defendant LPNs to counter their
testimony that they were or would have been unconcerned, unlike the plaintiffs in
Parsons. See 491 Fed. App’x at 603-04. For instance, Plaintiff points to no evidence
that Defendant LPNs, or LPNs generally, would have learned about these risks in the
course of getting their degrees or training. Nor does Plaintiff point to evidence that
Nurse Bishop or other Defendant LPNs had encountered problems arising from delays
in anti-seizure medication in the past, with Plaintiff or anyone else. Thus, Plaintiff fails to
show that whether Nurse Bishop had a sufficiently culpable mental state is in genuine
dispute requiring submission to a jury. Johnson, 398 F.3d at 874.
Undisputed facts in the record show that Plaintiff was admitted without a valid,
active prescription, that his medication was not kept in stock at the jail, that Plaintiff
regularly went long periods without taking his seizure medication, and that Plaintiff
sometimes suffers seizures even when he is on his medication. Plaintiff did not seek out
medical treatment or file a grievance. Given that Plaintiff was jailed late on a Saturday
evening, gave inaccurate pharmacy information, and that no doctor was present at the
facility, Nurse Bishop would likely not have been able to verify his prescription to secure

23

medication even if she did receive the screening form. Even if a nurse had been able to
verify his prescription, unless she decided to go through the emergency room, Plaintiff
would not have gotten his medications until Monday afternoon, which would have been
after he suffered his seizures. (Dkt. # 63, Pg. ID 416.)
Plaintiff’s seizures were tragic, and conceivably may have been preventable had
Defendants acted with greater care or competence. But that alone does not, and
cannot, show that Defendants were deliberately indifferent towards Plaintiff’s serious
medical needs in violation of the Eighth and Fourteenth Amendments. As a result,
Defendants are entitled to summary judgment.
C. Gross Negligence
To recover for gross negligence under Michigan law, Plaintiff must show “conduct
so reckless as to demonstrate a substantial lack of concern for whether an injury
results.” Mich. Comp. Laws 691.1407(2)(c). For the same reasons discussed above, the
court concludes no reasonable jury could find that any Defendant’s actions amounted to
a “willful disregard of of precautions or measures to attend to safety and a singular
disregard for substantial risks[,]” Tarlea v. Crabtree, 263 Mich. App. 80 (2004).
Accordingly the court will grant Defendants’ motions on this count as well.
IV. CONCLUSION
IT IS ORDERED that Defendants’ motions for summary judgment (Dkt.
## 63, 65) are GRANTED.
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: July 27, 2017

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I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, July 27, 2017, by electronic and/or ordinary mail.

s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

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