McCain v. St. Clair, County of et al

Filing 89

ORDER denying 85 Motion for Reconsideration. 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.
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ORDER DENYING MOTION FOR RECONSIDERATION
Plaintiff Eugene McCain moves the court to reconsider its July 27, 2017 opinion
and order granting summary judgment to Defendants. Because the motion fails to
identify a palpable defect by which the court was misled that would have led to a
different disposition of the case, see E.D. Mich. LR 7.1(h)(3), the court will deny the
motion.
First, Plaintiff contends that the court erred in holding that Plaintiff had presented
no more than a scintilla of evidence to show that Defendant Nurse Bishop had actually
received and read the medical screening form. (Dkt. #85 Pg. ID 2172–74.) In its opinion
and order, the court explained that Plaintiff essentially offered evidence to show only
that it was Nurse Bishop’s pattern and practice to collect and review the forms multiple
times during the shift. (Dkt. #81 Pg. ID 2148.) The court explained that simply because
pattern and practice evidence is admissible does not mean that, standing alone, it is
more than a scintilla. (Id. at Pg. ID 2147–48.) Dr. Stromberg’s testimony reinforcing the
existence of the pattern and practice does change the fact that the existence of the

standard practice amounts to no more than a scintilla of evidence that Nurse Bishop
actually followed that practice here. The court will draw all reasonable inferences in
Plaintiff’s favor, Sagan v. United States, 342 F.3d 493, 497 (6th Cir. 2003), but, as the
court’s earlier opinion explained, the chain of inferences required from the mere
existence of the practice is not reasonable.
Plaintiff next objects that the court did not address Plaintiff’s claim that Defendant
Nurses failed to provide adequate care following Plaintiff’s first seizure. (Dkt. #85 Pg. ID
2175–76.) The court inaccurately stated in its opinion and order that Plaintiff did not
challenge the adequacy of care provided in response to the first seizure. (Dkt. #81 Pg.
ID 2145.) Plaintiff’s brief in fact argued that “Nurse Bishop’s response to Mr. McCain
when he suffered his first seizure . . . was also grossly substandard . . .” because “[t]he
only thing that Nurse Bishop did was order that Mr. McCain be observed by deputies
every 30 minutes.” (Dkt. #71 Pg. ID 1170.) But Plaintiff’s brief cited to no evidence in the
record, relying instead on vague assertions that Plaintiff’s witnesses “all agree that
Nurse Bishop’s actions were grossly substandard.” (Id.)1
Although Plaintiff complains that the court also “did not address this claim as it
pertained to Nurses Schieman and King[,]” (Dkt. #85 Pg. ID 2175–76), neither did
Plaintiff’s briefing. (Dkt. #71 Pg. ID 1171–72.) Plaintiff’s briefing made no mention of

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And regardless of the court’s misstatement, Plaintiff’s assertion is belied by
what Defendants have cited in the record. Nurse Bishop’s notes indicate that—in
addition to ordering the 30-minute checks—she evaluated Plaintiff, had him moved to a
cell closer to the officer’s station, and ordered his seizure medication. (Dkt. #63 Pg. ID
483.) Plaintiff’s expert Valerie Tennessen acknowledged that these steps were taken.
(Dkt. #63 Pg. ID 530.)
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Nurses Schieman’s or King’s response to the first seizure. Moreover, Plaintiff’s briefing
in this entire section (Dkt. #71 Pg. ID 1171–72) cited no evidence in the record.
The court is under no obligation to search the record beyond the parties’
citations. Fed. R. Civ. P. 56(c)(3). Finding no evidence to support the Plaintiff’s
contention that the Defendant nurses “provided grossly substandard care in response to
Mr. McCain’s first seizure” (Dkt. #85 Pg. ID 2175), the court has determined that
summary judgment as to Nurses Bishop, Schieman, and King was proper.
Plaintiff next contends that the court mistakenly faulted him for not citing
evidence in the record in his opposition to summary judgment. (Dkt. #85 Pg. ID 2177–
79.) He first objects to the court’s conclusion that he cited nothing in the record to
support his assertion that Nurse Bishop knew that a seizure disorder is a serious
condition. (Dkt. #85 Pg. ID 2177.) Plaintiff points to the “Statement of Underlying Facts”
section of his response to summary judgment where he cited a portion of Nurse
Bishop’s deposition; he claims that in this portion Nurse Bishop admitted that a seizure
disorder is a serious condition. (Dkt. #71 Pg. ID 1149.) Any such “admission” in this
section of Nurse Bishop’s testimony, however, is borne out of Plaintiff’s own conclusory
statements. Nowhere in this section of Nurse Bishop’s testimony does she use or
accept the term “serious condition.” Plaintiff also points to the depositions of other
witnesses that he cited in response to the motion for summary judgment—the court is
unclear, however, how statements from other witnesses amount to an admission from
Nurse Bishop that a seizure disorder is a serious condition.
Citing the court’s opinion (Dkt. #81 Pg. ID 2151), Plaintiff also objects that the
court improperly concluded that he cited no evidence in the record to suggest that

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“Nurse Schieman admitted that a seizure disorder is a serious medical condition, and
that stopping medication right away can result in the onset of seizures.” (Dkt. #85 Pg. ID
2178.) He contends that the court made the same improper conclusion as to Nurse
King. (Id.) But the court made no such conclusion in this section of its opinion. Rather,
the court determined that the Plaintiff had pointed to no evidence that would “contradict
[Nurse Bishop’s] statements, echoed by Nurse Schieman and Nurse King, that she
would not have believed there to be a substantial risk to Plaintiff’s health.” (Dkt. #81 Pg.
ID 2151.) The court went on to say that “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.” (Dkt. #81 Pg.
ID 2151.) The court finds that Plaintiff’s cited sections in the present motion (Dkt. #85
Pg. ID 2178–79) still fail to contradict or counter these statements.
Finally, Plaintiff contends that the court improperly failed to analyze testimony
and affidavits from four witnesses supplied by Plaintiff. (Id. at Pg. ID 2179.) But the
Plaintiff fails to articulate how the court should have taken that material into account, he
fails to explain why that material resulted in the court and parties being misled, and he
fails to state how “correcting the defect will result in a different disposition of the case.”
See E.D. Mich. LR 7.1(h)(3).
Plaintiff, in his motion, seems to misunderstand his burden in opposing a motion
for summary judgment. As the court noted in its opinion and order granting summary
judgment, 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). Once
the movant meets that initial burden, “the party opposing the motion then may not ‘rely

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on the hope that the trier of fact will disbelieve the movant’s denial of a disputed fact’ but
must make an affirmative showing with proper evidence in order to defeat the motion.”
Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009) (quoting Street v. J.C.
Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989)). “[T]he opposing party ‘cannot rest
solely on the allegations made in [his] pleadings,’ but must set forth—by pointing to
specific facts—that there is a genuine issue for trial. Everson v. Leis, 556 F.3d 484, 496
(6th Cir. 2009) (quoting Skousen v. Brighton High School, 305 F.3d 520, 527 (6th Cir.
2002)). On the initial motions for summary judgment, Plaintiff did not meet his burden,
as the nonmovant, to demonstrate a genuine issue for trial. He has similarly not done so
now.
The court finds no “palpable defect by which the Court and the parties and other
persons entitled to be heard on the motion have been misled” that would “result in a
different disposition of the case” if corrected. E.D. Mich. LR 7.1(h)(3). Accordingly,
Plaintiff’s “Motion for Reconsideration of This Court’s July 27, 2017 Opinion and
Order Granting Motions for Summary Judgment” (Dkt. #85) is DENIED.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE

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Dated: October 12, 2017
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, October 12, 2017, by electronic and/or ordinary mail.

s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]
S:\Cleland\KNP\Civil\16-10112.MCCAIN.deny.reconsideration.TLH.KNP.docx

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