Hubble et al v. Macomb, County of et al
Filing
111
OPINION AND ORDER granting 77 Motion for Summary Judgment; granting 82 Motion for Summary Judgment; denying 102 Motion for Sanctions. Signed by District Judge Paul D. Borman. (DTof)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RUSSELL HUBBLE, as Personal
Representative of the Estate of
JENNIFER LYNN MEYERS,
Deceased,
Case No. 2:16-cv-13504
Plaintiff,
Paul D. Borman
United States District Judge
v.
David R. Grand
United States Magistrate Judge
COUNTY OF MACOMB,
et al,
Defendants.
___________________________/
OPINION AND ORDER (1) GRANTING DEFENDANTS’ MOTIONS FOR
SUMMARY JUDGMENT (ECF NOS. 77 and 82), and
(2) DENYING PLAINTIFF’S MOTION FOR SANCTIONS (ECF NO. 102)
This action involves the tragic death of Jennifer Meyers, a 37-year-old woman
who died as a result of acute sepsis while serving a thirty-day sentence at the Macomb
County Jail. Her Estate has filed suit against Macomb County, the Macomb County
Sheriff Anthony Wickersham (collectively “the Macomb County Defendants”),
Correct Care Solutions, LLC (“CCS”), the health care provider for the jail, and several
CCS staff.1 The Complaint alleges that the Defendants caused Ms. Meyers’s death by
1
Although Plaintiff’s Complaint also names “Deputy John/Jane Does,” the Estate has
not named any deputies or corrections officers in this litigation and does not sue any
1
being deliberately indifferent to her medical needs and thus violating her rights under
the Eighth Amendment to be free from cruel and unusual punishment.
Both the Macomb County Defendants (ECF No. 82) and the CCS Defendants
(ECF No. 77) have filed motions for summary judgment. In addition, the CCS
Defendants have filed a motion to exclude the testimony of one of Plaintiff’s experts,
Dr. L.J. Dragovic (ECF No. 81), which is addressed in a separate Opinion and Order
entered this same day. In addition, Plaintiff has filed a motion for sanctions directed
to the CCS Defendants’ failure to produce legible copies of certain health care
records. (ECF No. 102).
The Court held three separate hearings on the various motions on January 10,
18, and 24, 2019. For the reasons that follow, the Court GRANTS the Defendants’
motions for summary judgment and DENIES the Plaintiff’s motion for sanctions.
I.
FACTUAL BACKGROUND
The facts, and all reasonable inference from those facts, are presented here in
the light most favorable to the Plaintiff, as required on summary judgment.
A.
Ms. Meyers’s Booking, Sentencing, and Housing in B-Pod
On the evening of June 25, 2013, at about 7:30 p.m., Ms. Meyers was brought
to the Macomb County Jail by Macomb County Sheriffs, having been arrested on
jail corrections officers in their individual or official capacities.
2
outstanding warrants for a probation violation, Friend of the Court disorderly nonsupport, controlled substance possession, retail fraud, and two outstanding Detroit
traffic citations. This was Ms. Meyers twelfth incarceration at the Macomb County
Jail. (ECF No. 93-4, PgID 3131, Pl.’s Resp. to County Mot. Ex. 3, Office of
Professional Standards Death Investigation Summary (“OPS Report”); ECF No. 82-2,
PgID 2067, County Defs.’ Mot. Ex. 1, Inmate Classification Notice). On her arrival
at the jail on the evening of June 25, 2013, Ms. Meyers was pat searched by
Correction Deputy Jennifer Bancroft who completed Ms. Meyers’s initial
classification/temporary assignment form.
(OPS Report, PgID 3132.) Deputy
Bancroft noted that Myers responded “no” to questions regarding suicidal risk and
“no” to the question of needing immediate medical assistance. (Id.)
Following her initial classification, Ms. Meyers was placed into Holding Cell
11 where she remained until approximately 9:00 p.m., when she was taken for medical
screening, which was performed by CCS Nurse Bayly. (Id. PgID 3133; ECF No. 9022, Pl.’s Resp. to CCS Mot. Ex. 21, Receiving Screening Form, PgID 2834-39.)
Bayly’s E-signed receiving medical screening form noted that Ms. Meyers had
Chronic Hepatitis C and Bipolar disorder, and also noted that Ms. Meyers had been
hospitalized two months prior to her incarceration for an infection/abscess to her right
arm, that Ms. Meyers was an IV heroin user and had last used one month earlier, had
3
been treated for substance/alcohol abuse in 2008/2009, and had a history of
withdrawal after stopping alcohol and drugs, specifically nausea, sweats, and shakes
after stopping opiates. (Id.)
Nurse Bayly indicated that Ms. Meyers had previously
taken a number of psychotropic medications but was currently not taking any
medications. (Id.) Nurse Bayly noted that Plaintiff reported that she had been tested
for pregnancy two days earlier and the results were “negative per hospital report per
pt.” (Id.) Otherwise, Nurse Bayly noted that Ms. Meyers was in no distress, had
vitals within the normal range (blood pressure 90/70, pulse 100, respiration 18,
temperature 96.10, pulse ox 98, weight 210 and BMI 31), was not sweating, anxious,
or disheveled in appearance, had no obvious physical abnormalities, and was alert and
oriented. (Id.) Ms. Meyers electronically signed the medical screening form, attesting
that she had given full answers to the questions and that she had received information
on how to obtain/access medical services during her incarceration and consenting to
treatment by CCS. Nurse Bayly also ordered that Ms. Meyers be placed in general
population housing with a bottom bunk restriction due to complaints of back pain.
(Id. at PgID 2838; ECF No. 82-4, PgID 2073, June 26, 2013 Memo to Jail Command).
Ms. Meyers was returned to Holding Cell 11 at approximately 3:00 a.m. following her
medical screening. (OPS Report PgID 3133.) Later that morning, June 26, 2013, at
8:30 a.m., Ms. Meyers was arraigned on the non-support warrant and sentenced to
4
serve a thirty (30) days in the Macomb County Jail. She was booked and placed in
Holding Cell 13 until later that afternoon when she was moved to “D Block,” where
she was housed in a common area with anywhere from 10-12 other inmates until June
29, 2013, when she was moved to Floor 6/7 and assigned to cell 6B3, the cell where
she was housed until her death on July 7, 2013. (Id. PgID 3134; ECF No. 82-6, Sept.
8, 2017 Deposition of Jessica DeHate 79-80, PgID 216).
From the time that Ms. Meyers was placed into 6B3 on June 29, 2013, until the
date of her death on July 7, 2013, there were no reports written by jail staff relating
to Ms. Meyers and only one sick call request from Ms. Meyers, received on Friday,
June 28, 2013, indicating that she was having severe back pain and needed medical
attention. (ECF No. 99, CCS Defs.’ Supp. Ex. P, Affidavit of Lara Ianitelli, R.N.,
H.S.A. Ex. A, Sick Call Logs June 26, 2013 through July 16, 2013.)2 As discussed
2
Plaintiff filed an Objection to Nurse Ianitelli’s Supplemental Affidavit, arguing that
(1) the Affidavit should have been submitted with CCS’s motion for summary
judgment, (2) Nurse Ianitelli is not on CCS’s witness list, and (3) it is unclear when
Nurse Ianitelli worked for CCS. (ECF No. 100, Objection to Supplemental Ex. P.)
The Court finds that Ms. Ianitelli, as the keeper of the CCS records, is listed on CCS’s
witness list and may testify to the content of the CCS business records and need not
be individually named on the Defendants’ witness list. The Ianitelli Affidavit merely
confirms what each CCS witness has stated – that only one medical kite was received
by healthcare during the entirety of Ms. Meyers’s incarceration. That CCS would rely
on this fact was already known to the Plaintiff through the testimony of the CCS
witnesses so Plaintiff cannot claim surprise at the affirming Affidavit of Nurse
Ianitelli. Plaintiff has presented evidence, i.e. the statements of fellow inmates, that
allegedly several medical kites were submitted, either by Ms. Meyers or by others on
5
in greater depth infra, CCS responded to that sick call request on Tuesday, July 2,
2013, when Ms. Meyers was seen by CCS medical staff and was given Tylenol and
advised to apply heat to her back in the shower and instructed to “kite” (file another
medical care request) again if pain persists. (OPS Report PgID 3134.) During this
nine-day period, accounts of what transpired begin to diverge. Plaintiff’s claims
against Macomb County focus on the conduct of two corrections officers, Jessica
DeHate and Kimberly (Hummel) Hill, and on the conduct of Sheriff Wickersham,
both in his individual supervisory role and in his official capacity role as the person
responsible for the policies and customs of the Macomb County Jail. While Plaintiff
has not named officers DeHate and Hill as Defendants in this action, and does not
intend to proceed against them individually, she relies on their alleged misconduct as
her behalf, related to Ms. Meyers’s condition. That evidence however, fails to create
a genuine issue of material fact as to the number of kites received by healthcare
related to Ms. Meyers because there is no evidence in the record to substantiate (1)
when those kites allegedly were sent (whether before or after Ms. Meyers was seen
by CCS on July 2, 2013); (2) how those kites allegedly were sent; or (3) to whom on
the CCS and jail staff they allegedly were given. Plaintiff’s expert Margo L. Frasier
relies on this evidence in forming her opinion that Defendants were deliberately
indifferent to Ms. Meyers’s serious medical need. But Ms. Frasier admitted that she
did not know who submitted the kites, whether they were submitted before or after
Ms. Meyers was seen by Nurse Jones on July 2, 2013, or who on the jail or CCS staff
actually received and failed to pass on these kites. (ECF No. 96-2, June 25, 2018
Deposition of Margo L. Frasier 36:21-38:10.) The Court will allow the submission
of the Ianitelli Affidavit which confirms that CCS received only one kite related to
Ms. Meyers during her incarceration.
6
a basis for her Eighth Amendment claims against the County and Sheriff Wickersham,
as discussed infra.
Officer Hill testified that her duties included making rounds on the inmates in
Ms. Meyers’s Pod (6B) once every hour, which involved looking into each individual
cell to make sure the inmates are safe and secure. (County Defs.’ Mot., ECF No. 82-5,
Sept. 1, 2017 Deposition of Kimberly Hill 13-16, PgID 2088-91.) Officer Hill does
her visual inspection, makes sure that the inmates are safe and secure and that none
of them have questions for her or any kites to give her, before moving on to the next
unit. (Hill Dep. 19, PgID 2094.) If an inmate is sleeping, Officer Hill makes sure
they are breathing and makes them aware that she is there so that if they have
questions or kites, they can approach her. (Id. at 51, PgID 2126.) Officer Hill made
rounds on Pod 6B approximately 33 times between June 29, 2013 and July 7, 2013,
but has no recollection of Ms. Meyers ever complaining about any pain, or any issues
relating to her medical condition during the ten days that she was there in 6B. Officer
Hill testified that there was not a single time that Ms. Meyers came to Hill and talked
to her directly. Officer Hill had no recollection at all of Ms. Meyers’s physical
condition – nothing stood out in her mind. (Id. at 15, 20-21, PgID 2090, 2095-96.)
Ms. Hill recalled seeing Ms. Meyers, she just did not remember Ms. Meyers ever
saying anything to her about her medical condition. (Id. at 27-28, PgID 2102-03.)
7
Ms. Hill testified that usually if she notices that an inmate has been in their cell for
some period of time, she would question it and would make sure the inmate was
getting food trays and physically eating their food – but she did not remember one
way or the other if this was happening with Ms. Meyers. Nor did Ms. Hill recall any
type of odor emanating from Ms. Meyers or her cell or being told by other inmates
that Ms. Meyers was in pain or that she smelled – she would have remembered if that
had happened. (Id. at 28-31, PgID 2103-06.)
The day of Ms. Meyers’ death, Hill recalled that several inmates came up to her
and Officer DeHate while they were in the process of feeding the inmates, and told
them that they needed to check on Ms. Meyers. So Officers Hill and DeHate
immediately went to Ms. Meyers’s cell and found Ms. Meyers “hunched over in her
[property] bin.” (Id. at 10, PgID 2085.) Officer DeHate began chest compressions
and Officer Hill called medical and stood watch over the other inmates. Officer Hill
could not tell if Ms. Meyers was breathing or if her face was blue but she did not
touch Ms. Meyers. (Id. at 34-36, 53, PgID 2109-11, 2128.) Officer Hill was surprised
to learn that Meyers had died because she had never noticed and was never alerted to
any medical concerns with Ms. Meyers, Hill was never approached by any inmates
about Meyers’s medical condition and if she had been she would have approached
Meyers herself to talk to her and called medical. (Id. at 37, 42, 44, 53, PgID 2112,
8
2117, 2119, 2128.) Officer Hill testified that typically the nurses collect the medical
kites when they come to the floor each day to pass out medications, but if an inmate
tries to give Officer Hill a medical kite, she asks the inmate if its urgent and checks
to see if the inmate appears to be well, and if the inmate states that it is urgent, Officer
Hill calls a nurse right away. (Id. at 43, PgID 2118.) If she had been approached by
other inmates trying to hand her kites for Ms. Meyers, and telling her that medical was
not accepting Ms. Meyers’s kites, Hill would have gone straight to the command
officer to report this because accepting kites is part of CCS’s job. (Id. at 45, PgID
2120.)
Officer DeHate recalled one conversation that she had with Ms. Meyers on 6B
in which Ms. Meyers said she had back pain and Officer DeHate asked if she had
kited medical to which Ms. Meyers responded “yes,” and Officer DeHate suggested
Ms. Meyers take a hot shower to help relieve the pain. (DeHate Dep. 21, PgID 2150.)
Other than that interaction, Officer DeHate had no reason to believe that Ms. Meyers
was in pain or was suffering with medical complications and was unaware of any
other Officers who knew of complaints about Ms. Meyers’s medical condition, nor
was she aware of a smell so strong coming from Ms. Meyers’s cell that you could
smell it when you walked into the Pod. (Id. at 21-22, PgID 2150.) In fact, on the day
of Ms. Meyers’s death, at 4:10 p.m., just about an hour before inmates called Officers
9
Hill and DeHate to Ms. Meyers’s cell, Officer Hill had rounded on Ms. Meyers’s cell
and observed Ms. Meyers sitting on the edge of her bed looking down at the floor and
appearing to be fine. (Id. at 32, 34-35, PgID 2152-54.) In a statement that Officer
DeHate prepared just after the incident, Office DeHate stated that on Saturday, Ms.
Meyers had another inmate grab her dinner because her back was hurting. Officer
DeHate did not recall that at the time of her deposition. (Id. at 33, PgID 2153.)
Officer DeHate testified that she is trained in CPR and other measures solely for
purposes of first response. Officer DeHate first tried a sternum rub on Ms. Meyers
which elicited no response and then proceeded with CPR, which she continued until
medical arrived in less than five minutes and Medstar arrived approximately five
minutes after medical. (Id. at 38-42, PgID 2154-55.) Officer DeHate never had
another conversation with Ms. Meyers about her medical condition, does not recall
Ms. Meyers ever looking like she was sweating profusely, and never heard from
anyone else that Ms. Meyers was having physical problems. (Id. at 46-47, PgID
2156.) Officer DeHate testified, as did Officer Hill, that they are not typically
supposed to accept medical kites, and if an inmate tries to hand her one she asks if it
is a medical emergency, asks if the inmate needs to see a doctor right away, and if
they say no she looks at them carefully to see if they are fine or if they are just lying
and if they look fine she gives them back the kite and tells them to give it to the nurse
10
when she comes up for rounds. (Id. at 57-59, PgID 2159.) Officer DeHate was not
aware of any medical kites that other inmates were trying to submit for Ms. Meyers,
she was never told by other inmates that Ms. Meyers had been in bed all week and was
sick and sweaty and needed medical attention. (Id. at 61-62, 94-95PgID 2160, 2168.)
Officer DeHate did recall that an inmate had approached her and told her that Ms.
Meyers smelled badly and so when Officer DeHate had the one conversation with Ms.
Meyers when Ms. Meyers complained of her back pain, Officer DeHate took the
opportunity the suggest that Ms. Meyers take a hot shower. (Id. at 65, PgID 2161.)
Officer DeHate did not recall Ms. Meyers ever having been seen by medical or taking
her down to medical. (Id. at 72, PgID 2162.)
In contrast to what Officers Hill and DeHate observed about Ms. Meyers’s
medical condition during her ten days on Pod 6B, several inmates who prepared
statements at the time of Ms. Meyers death, and subsequently provided Affidavits in
support of this litigation, suggest a very different picture of a woman who was
suffering terribly (and visibly) and whose pleas for help were being ignored by both
jail staff and CCS staff. Fellow inmate Rettia Macleod submitted an Affidavit stating
that she had been housed with Ms. Meyers both in the D Block and on the 6B Pod.
(ECF No. 93-5, Pl.’s County Resp. Ex. 4, Aug. 14, 2017 Affidavit of Rettia Jane
Macleod PgID 3142.) Ms. Macleod states that during the entire time she was housed
11
with Ms. Meyers, she watched Ms. Meyers suffering severe body aches and pains
while lying on a thin pad in D Block and on her bunk in B Pod. Many inmates helped
Ms. Meyers to shift on her bed to help her be more comfortable and lessen her pain.
Ms. Macleod states that “many inmates” prepared kites for medical attention for Ms.
Meyers while in B Pod and believes that the guards “must have known what
condition” Ms. Meyers was in “because she could not get out of bed.” (Id. Pgid
3143.) Ms. Macleod noticed Ms. Meyers sweating “a lot,” and smelling “like her
flesh was rotting.” Ms. Macleod knew Ms. Meyers was suffering and needed
immediate medical help. Yet corrections officers were doing nothing to help Ms.
Meyers, “no matter how many times we wrote and handed in medical kites for her,”
and “nurses on rounds refused to examine Ms. Meyers even though they asked them
to do so.” (Id. PgId 3143.) Ms. Macleod recalled the name of Officer DeHate and
testified that DeHate saw Ms. Meyers’s condition and when Ms. Macleod asked
DeHate to help Ms. Meyers, Officer DeHate responded that Ms. Meyers “was used
to detoxing.” (Id. PgID 3143-44.) Ms. Macleod states that she is prepared to testify
to the statements in her Affidavit. (Id. at 3144.) Ms. Macleod prepared a second
Affidavit on September 22, 2017, adding that after she reviewed the names of the
guards from the jail records provided to her by Plaintiff’s attorney, she specifically
recalled that Officer Franks, DeHate and Hummel (Hill) were frequently in B Pod
12
during Ms. Meyers’s incarceration and were told by her and many other inmates on
the pod that Ms. Meyers needed immediate medical care. (ECF No. 93-6, Sept. 22,
2017 Affidavit of Rettia Jane Macleod, PgID 3148-49.)
Fellow inmate Amy Sue Pregizer submitted an Affidavit stating that she was
housed a few doors down from Ms. Meyers on B Pod. (ECF No. 93-7, Aug. 20, 2017
Affidavit of Amy Sue Pregizer PgID 3152-3155.) Ms. Pregizer testified that Ms.
Meyers need for medical attention was dire and obvious as she was sweating
constantly, “like she just go out of the shower,” could barely move from her bunk and
was having trouble breathing. (Id. PgID 3152.) Ms. Pregizer states that the smell
coming from Ms. Meyers’s cell was “was so bad that anyone taking a step into the
unit could smell the smell.” Ms. Pregizer recites that several inmates complained
about the smell to the guards and nurses but no one ever attempted to help Ms.
Meyers. Ms. Pregizer states that the “the guards were aware of Ms. Meyers’s need for
medical care because we brought our concerns to the guards and nurses by telling
them about Ms. Meyers and writing numerous medical kites/medical requests” and
giving them “to the guards and nurses.” (Id. PgID 3153.) Ms. Pregizer testifies that
she “knew for a fact that Deputy DeHate knew about the terrible smell coming from
Ms. Meyers” because DeHate told inmates to shower, directing the comments to Ms.
Meyers. (Id.) Ms. Pregizer testifies that the “guards knew the terrible condition Ms.
13
Meyers was in, because the guards allowed [her] and other inmates to get many of her
meals for her because she could not get out of her bunk.” (Id. PgID 3154.)
Fellow inmate Carrie Shaw provides an Affidavit testifying that she was housed
in B Pod on the floor just above Ms. Meyers and saw Ms. Meyers at least a few times
every day for about one week prior to her death. (ECF No. 93-8, March 15, 2018
Affidavit of Carrie R. Shaw PgID 3157-60.) Ms. Shaw testifies that she knew Ms.
Meyers from previous incarcerations and that she knew as soon as she saw Ms.
Meyers that there was something wrong with her. Ms. Meyers asked Ms. Shaw to
help make her bed because of her back pain, and Ms. Shaw noticed that Ms. Meyers
was sweating a lot and that she smelled badly “even after she showered.” (Id. PgID
3158.) Ms. Shaw testifies that several inmates informed correctional staff, including
DeHate, that Ms. Meyers could not get up to get her food and the officers allowed
other inmates to take Ms. Meyers food trays to her in her cell. Ms. Shaw testified that
corrections officers rarely spent more than a few seconds looking into inmates’ cells
during rounds and that even though officers, including DeHate, knew that Ms. Meyers
was unable to leave her cell for days, they did not enter her cell to make an honest
attempt to check on her until the day she died. (Id. PgID 3159.) Ms. Shaw testified
that Ms. Meyers told her that Ms. Meyers had kited medical at least four times and
when Ms. Shaw asked DeHate when Ms. Meyers was going to get medical attention,
14
DeHate said “medical knew about” Ms. Meyers. (Id.)3
3
Defendants continue to refer to the inmate testimony generally as “hearsay,” but it
is clear that the inmate’s sworn affidavits, which largely present the personal
observations of these fellow inmates, to the extent they are based on personal
knowledge of the inmate, are competent summary judgment evidence. “An affidavit
or declaration used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in evidence, and show that the
affiant or declarant is competent to testify to the matters stated.” Fed. R. Civ. P. 56(d).
The Sixth Circuit routinely considers such sworn fellow inmate testimony. See, e.g.
Winkler v. Madison County, 893 F.3d 877, 887 (6th Cir. 2018) (noting the testimony
of an inmate that the deceased “was kind of weak” and “didn’t feel good” and that he
“told [the deceased] it was dope or ulcers something” that was killing him and he
“[b]etter do something”); Kindl v. City of Berkley, 798 F.3d 391, 400 (6th Cir. 2015)
(considering fellow detainees’ statements regarding what they heard and saw of the
deceased who was going through delerium tremens); Phillips v. Roane County, Tenn.,
534 F.3d 531, 536 (6th Cir. 2008) (considering testimony of inmate who stated that
the examining doctor “just glanced at [plaintiff] and prescribed some pill” and “failed
to even to touch her”); Miller v. Calhoun County, 408 F.3d 803, 809 (6th Cir. 2005)
(noting that cell mate reported that deceased “complained of a headache to the guard
and requested an aspirin,” three different times); Speers v. County of Berrien, 196 F.
App’x 390, 396 (6th Cir. 2006) (finding issue of material fact of officer’s subjective
knowledge based on fellow inmate’s testimony that he alerted guards that deceased
“had foam in his mouth” and “was twitching” and had “collapsed,” finding guards
should at least have contacted medical personnel or at least tried to speak to the
deceased or to enter his cell and check on him); Hamilton v. Pike County, Ky., No. 1199, 2013 WL 529936, at *1 (E.D. Ky. Feb. 11, 2013) (Thapar, J.) (relying on
testimony of a fellow inmate as to what he observed, what he said to nurses, and to his
belief that the nurses were aware of Hamilton’s condition).
Plaintiff also relies on several unsworn fellow inmate “statements” that were
written by the inmates at the direction of jail staff in the hours just after the discovery
that Ms. Meyers had passed. Affiant Pregizer explains that “the guards closed our cell
doors on B Pod and slid witness statements and pencils under our doors and told us
to write what we recalled about Jennifer before her death and when she was
discovered in her cell.” (Pregizer Aff. PgID 3154.) Unsworn statements are
inadmissible and typically cannot create a genuine issue of material fact on summary
judgment. “[U]nsworn statements . . . offered by defendants must be disregarded
15
B.
Ms. Meyers’s Medical Evaluations by CCS Staff
The evidence establishes that Ms. Meyers sent a kite to medical, marked
“Urgent,” on Friday, June 28, 2013. (ECF No. 93-18, Pl.’s County Resp. Ex. 17, Kite,
PgID 3180.) The kite form provides three boxes for rating the degree of medical
need: Routine, Urgent, and Emergent. Ms. Meyers selected “Urgent” suggesting that
her need was not routine but also was not an emergency. Ms. Meyers was seen on
Tuesday, July 2, 2013, in response to that kite. (Id.) From the time that Ms. Meyers
was placed into 6B3 on June 29, 2013, until the date of her death on July 7, 2013,
there is only one sick call request from Ms. Meyers, received on June 28, 2013,
indicating that she was having back pain and needed medical attention. (ECF No. 99,
Ianitelli Aff., Ex. A, Sick Call Logs June 26, 2013 through July 16, 2013, PgID 3679.)
CCS responded to that sick call request on July 2, 2013, when Ms. Meyers was seen
by CCS medical staff and was given Tylenol and advised to apply heat to her back in
because a court may not consider unsworn statements when ruling on a motion for
summary judgment.” Dole v. Elliott Travel & Tours, 942 F.2d 962, 968-69 (6th Cir.
1991) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158 n. 17 (1970)). See also
Harris v. J.B. Robinson Jewelers, 627 F.3d 235, 239 N. 1 (“‘[A] court may not
consider unsworn statements when ruling on a motion for summary judgment.’”)
(quoting Dole, 942 F.2d at 968-69 n. 1). The Plaintiff has not responded with a
specific hearsay argument with respect to these unsworn witness statements and the
Court will not consider them in its summary judgment analysis. The Court notes,
however, that their content is largely reiterated in the sworn inmate statements which
are being considered at this summary judgment stage.
16
the shower and instructed to “kite” (file another medical care request) again if pain
persists. (OPS Report PgID 3134.) The nurse who responded to that kite, Stephanie
(Noland) Jones, testified that she had no independent recall at the time of her
deposition in July, 2017, of the one occasion that she saw Ms. Meyers. (ECF No. 9020, Pl.’s CCS Resp. Ex. 19, July 12, 2017 Deposition of Stephanie (Noland) Jones 11,
PgID 2813.) Nurse Jones testified that the only way she would be able to recall her
care of Ms. Meyers would be to review the records that she prepared at the time she
saw Ms. Meyers. (Id.) At the time that Nurse Jones saw Ms. Meyers, she was a
Licensed Practical Nurse (“LPN”), having received her degree in 2010 and becoming
licensed as an LPN in the State of Michigan. (Id. at 5, PgID 2812.) At that time,
Nurse Jones had also received training and her degree to become licensed as a
Registered Nurse (“RN”), but had not yet received her Michigan license to practice
as an RN. (Id. at 9-10, PgID 2813.) LPNs are authorized to dispense oral medications,
but not intravenous medications, and cannot independently diagnose or prescribe
medications. (Id. at 6, PgID 2812.) As an LPN, Nurse Jones would pass medications
from the med cart, pick up kites from inmates, triage patients on the intake process (do
medical screening at booking), and take sick call, i.e. see patients who submitted kites.
(Id. at 6-8, PgID 2812.)
17
Nurse Jones resigned from her job with CCS in the summer/fall of 2014 and
began working for an urgent care center. (Id. at 8, PgID 2812.) Nurse Jones had no
recollection of Ms. Meyers at all, and when shown a picture of Ms. Meyers did not
recall ever having seen her face. (Id. at 13-15, PgID 2814.) Nurse Jones did not learn
of Ms. Meyers death until she received the notice for her deposition in this case in
2017. Although Nurse Jones was still on staff at CCS for almost a year after Ms.
Meyers passed away, she never learned of her death. (Id.) From a review of the
medical records that bore her signature, Nurse Jones stated that medical received only
one kite from Ms. Meyers dated June 28, 2013, and that Nurse Jones saw her in
response to that kite on July 2, 2013. (Id. at 23-25, PgID 2816-17; ECF No. 90-19,
Pl.’s CCS Resp. Ex. 18, Correct Care Solutions Sick Call Request “Kite,” PgID 2808.)
In reviewing the June 28, 2013 Kite that both Nurse Jones and Ms. Meyers signed,
Nurse Jones did not know what the “X” placed next to the word “Urgent,” one of three
choices – Emergent, Urgent, Routine – meant. (Jones Dep. 24-25, PgID 2817.) From
reviewing her records Nurse Jones recalled that Ms. Meyers stated that her pain
started nine days ago and that she had an MRI two days before coming to jail. (Id. at
27, PgID 2817; ECF No. 90-21, PgID ID 2830, 7/2/13 “Muscular Aches” Note for
Jennifer Meyers.) The 7/2/13 Note contains a number of questions or inquiries that
Nurse Jones was required to ask or actions that she was required to take to examine
18
and assess Ms. Meyers. Nurse Jones’s 7/2/13 Note further reflects that Ms. Meyers
stated that the pain was in her lumbar area, that she did not know what she had done
to injure her back, and Ms. Meyers “denied any exacerbating or relieving factors.”
(Id.) Although Nurse Jones frequently reiterated in her deposition that she had no
independent recollection of seeing or treating Ms. Meyers, Nurse Jones testified that
based on her standard practice in taking medical records, she believed that the medical
record was accurate. (Jones Dep. 32, PgID 2818.) Nurse Jones testified that she
would have accurately written down what she found on her examination of Ms.
Meyers. (Id. at 34, PgID 2819.)
Nurse Jones’s 7/2/13 Note states that Ms. Meyers’s vital signs were all normal:
pulse was 60 (within the normal range of 60-100), that her respiration was 16 (within
a normal range of 12-20), that her blood pressure was 120/72 (within normal limits).
(Id. at 32-33, PgID 2818-19; 7/2/13 Note, PgID 2830-32.) Nurse Jones’s 7/2/13 Note
reflects that she inspected Ms. Meyers’s back, and Ms. Meyers was able to move
through an entire range of motion of her back, which would mean bending over and
straightening up. The 7/2/13 Note further reflects that Nurse Jones’s examination
revealed no bruising, swelling, redness, or heat to the touch. (Id. at 35-36, PgID 2819;
7/2/13 Notes at 1, PgID 2830.) Nurse Jones testified that although the 7/2/13 Note did
not state Ms. Meyers’s temperature, her standard practice and procedure would have
19
been to take the temperature as part of the vital signs and the absence of a note
regarding temperature was an indication that Ms. Meyers’s temperature was not
elevated. (Jones Dep. 57-60, PgID 2825.) Nurse Jones also testified that her standard
practice and procedure when informed by an inmate of a previous outpatient test or
study would be to ask where it was performed and the absence of a notation as to
where Ms. Meyers had her MRI performed would mean that Ms. Meyers did not
disclose that information to Nurse Jones. (Jones Dep. 57, PgID 2825.)
As a result of the information gained through this examination, Nurse Jones
assessed Ms. Meyers as “alteration in comfort, nonspecific.” (Jones Dep. at 36, PgID
2819; 7/2/13 Notes at 2, PgID 2831.) Nurse Jones explained that if there are no
findings other than the patient’s complaints of pain and minimal swelling in the area
(and Nurse Jones found no swelling) without bony deformity, the protocol directs to
“assess alteration in comfort, nonspecific.” (Jones Dep. at 37, PgID 2820; 7/2/13
Notes at 2, PgID 2831.) Nurse Jones concluded that the appropriate intervention was
for “muscle pain from unaccustomed activity or exertion.” (Jones Dep. 39, PgID
2820; 7/2/13 Note 2831.) She advised rest for a few days and prescribed Tylenol 975
mg by mouth twice a day, indicated “if discomfort is severe.” (Id.) Nurse Jones’s
7/2/13 Note also indicates that she recommended applying “the RICE sequence,”
which prescribed rest, ice, compression, and elevation. (Jones Dep. 39-42; 7/2/13 Note
20
PgID 2831.)
The 7/2/13 Note finally states that Nurse Jones gave “975 mg per
nursing pathway,” and educated Ms. Meyers to apply heat to her back in the shower,
and that “if needed [she] can always put another kite in for back pain.” (Jones Dep.
43-45; 7/2/13 Note, PgID 2832.)
CCS Nurse Karen (Creagh) Black was the Director of Nursing at CCS at the
time of Ms. Meyers’s death and was the supervisor who reviewed and E-signed both
the Receiving Screening form completed by Nurse Bayly and the 7/2/13 Note
prepared by Nurse Jones. (ECF No. 90-23, Pl.’s CCS Resp. Ex. 22, Aug. 13, 2017
Deposition of Karen (Creagh) Black, RN PgID 2841.) Nurse Black was first trained
as an Emergency Medical Technician (“EMT”), later licensed by the State of
Michigan as a paramedic, and became licensed as an RN in 2007. (Id. at 7-10, PgID
2843-44.) Nurse Black was hired to work at the jail (then Correctional Medical
Services “CMS” had the contract for the Macomb County Jail – CCS took over in
2011 ) in late summer of 2008 as a RN, and was promoted to Director of Nursing at
CCS in 2011. (Id. at 10-15, PgID 2844-45.) CCS corporate office sent someone to
train her one-on-one for the Director of Nursing position, and reviewed CCS policies
and procedures with her, mainly the NCCHC protocols and guidelines. (Id. at 15-16,
PgID 2845.) During her time as Director of Nursing, all of her nurses were obligated
to fulfill the obligations that existed in the NCCHC guidelines and she never
21
experienced a circumstance where that was not happening on a consistent basis. (Id.
at 20, PgID 2846.) Nurse Black left her job with CCS in 2014. (Id. at 17, PgID
2846.)
She was aware of Ms. Meyers’s passing and she participated in a postmortem
review done by CCS following Ms. Meyers’s death. (Black Dep. at 20-21, PgID
2846-47; ECF No. 26, Pl.’s Resp. Ex. 26, Mortality Review.) She was called and
informed that an inmate had passed away and she was at the facility 30 minutes later.
(Black Dep. 24, PgID 2847.) Nurse Black merely observed once she arrived and had
nothing to do with transferring Ms. Meyers’s body. (Id. at 27, PgID 2848.) Nurse
Black participated in the mortality review related to Ms. Meyers’s death but other than
that she did not do any follow up to determine the cause of Ms. Meyers’s death. (Id.
at 37-38, PgID 2851.) The Mortality Review is a two-page document that consists of
a number of fill-in-the-blank questions simply repeating some of what is contained in
Ms. Meyers’s jail medical records. (ECF No. 90-27, Pl.’s Resp. Ex. 26, PgID 2928.)
The Mortality Review notes Ms. Meyers’s past substance abuse of Heroin, her history
of Hepatitis C, her Bipolar disorder, notes that she has no history of self-harm, had
been hospitalized for rehabilitation from drug abuse in 2008-2009, and two months
prior to incarceration had been hospitalized for an abscess on her arm. (Id.) The
Mortality Review describes Ms. Meyers’s mental state just prior to death as “sitting
22
in cell talking, had eaten lunch, no complaints.” (Id.) Inmates confirmed that Plaintiff
did come out of her cell to eat lunch on the day she passed. With regard to
“potentially relevant precipitating factors,” the review notes that she was not suicidal,
and questioned whether her drug history was related to her death. (Id.) The review
notes that there was an adequate up-to-date history and physical in the record, that she
had received a mental health visit, that treatment given was consistent with the history
given, and that follow-up was noted on the medical record. (Id.) The Mortality
Review indicates that jail staff began CPR, medical placed an AED, and continued
CPR until paramedics arrived. (Id.) The death was not attributed to a secondary
diagnosis, appropriate care was noted as provided, all five individuals present for the
Mortality Review agreed that there was “no way to see this coming and feel that all
staff did the correct steps to save her.” (Id.) The Mortality Review is signed by Dr.
Marcella Clark, MD, Kim Gerdes, RN, HSA, Karen Black (Black), RN, DON, Dr.
Rozel Elacesui (spelling not legible), MD, and Natatlie Pacitto, MA, LPC, C&P (Id.)
It is signed by a clinical specialist, CCHP, whose name is not legible. (Id.)
Nurse Black as the supervising RN E-signed several of the medical records
pertaining to Ms. Meyers, which meant that Nurse Black reviewed them for
thoroughness and completeness – she verified that the document prepared by the
nursing staff was completely filled out and all required information was provided.
23
(Black Dep. 50-51, PgID 2854.) Nurse Black E-signed the Emergency Response
Worksheet that was completed by the nursing staff who responded to Ms. Meyers’s
death in her cell at the jail which details the steps taken by jail and nursing staff in
responding to Ms. Meyers’s emergency and death. (ECF No. 78, Sealed Macomb
County Jail Records, PgID 1958; Black Dep. 42, PgID 2852.) The nursing staff also
completed a “Man Down Form” when they responded to Ms. Meyers emergency.
(Black Dep. 96-97, PgID 2865; ECF No. 78, PgID 1960.) Nurse Black E-signed the
Medical Screening Form discussed supra. (ECF No. 78, PgID 1969; Black Dep. 7475, PgID 2860.) Nurse Black also E-signed the “Muscular Aches” pathway form
completed by Nurse Jones and discussed at length supra. (ECF No. 78, PgID 1978.)
Nurse Black explained that the Muscular Aches form is a standard nursing pathway
utilized by CCS, a “SOAP” pathway – subjective, objective, assessment and plan –
for the sick call nurse to follow when seeing a patient. (Black Dep. 48-49, 60-61,
PgID 2853-54, 2856-57.) The sick call nurse prepares an “assessment,” not a
diagnosis – and here Nurse Jones assessed “alteration in comfort nonspecific.” (Black
Dep. 64-65, PgID 2857-58.) Nurse Black confirmed that the medical records
pertaining to Ms. Meyers contained only one kite and she explained that kites are
“logged” when they are submitted but she had never seen the log that would indicate
how many kites Ms. Meyers had submitted. (Black Dep. 49-55, PgID 2854-56.)
24
Nurse Black explained that when a nurse picks up kite, she is instructed to look
at it for any “emergent life-threatening issues that need to be addressed right away,”
put the kite in the med cart for privacy, and take it back to the medical unit where she
logs the kites onto a sheet. (Black Dep. 54, PgID 2855.) Nurse Black explained that
her understanding of the designation “urgent” on the kite form means that the inmate
should be seen sooner rather than later. (Black Dep. 46-47, PgID 2853.) Nurse Black
explained that the four-day wait that Ms. Meyers experienced between her June 28,
2013 kite and her July 2, 2013 appointment with the nurse could have been due to the
fact that sick-call nurses are only staffed Monday through Friday and that if a nurse
on Friday does not indicate an issue is emergent/life-threatening, it may not be seen
until the following Monday. (Black Dep. 52-54, PgID 2854-55.)
Nurse Black testified that the nursing staff is trained to follow through if an
inmate indicates that they have recently had an MRI exam (or presumably other
diagnostic test). (Black Dep. 62-63, PgID 2857.) She testified that this is policy that
they are trained to follow if the inmate indicates the location where they had the exam.
(Id.) In this case, CCS was alerted to the fact that Ms. Meyers had an MRI two days
prior to her arrest and they were aware that she had been in the hospital two days prior
to her arrest because the records indicate that she had been “tested 2 days ago for
pregnancy – negative per hospital report per pt.” (Black Dep. 88-89, PgID 2863-64,
25
ECF No. 78, Medical Receiving Screening PgID 1965.) There was no specific
information identifying the reason for the MRI.
Nurse Black explained her understanding of the condition of “acute sepsis” as
an infection that came on suddenly. She testified that CCS does not provide training
specific to “acute sepsis,” but that many pathways and protocols are designed to detect
infections, such as the muscular aches pathway employed in Ms. Meyers’s case – if
following that pathway had led to other objective findings, such as any abnormal
vitals, then another pathway would be indicated. Nurse Black testified that the
symptoms she would expect to see with an infection would be diarrhea, confusion,
fever, chills, sweating (could be present), generalized aches and pains and fatigue, but
not necessarily debilitating pain and not “a foul smell.” (Black Dep. 112-117, PgID
2869-71.)
Significantly, Ms. Meyers was scheduled for a history and physical, which
policy required to take place within 14 days of admission to the jail, and for a doctor’s
visit due to her chronic hepatitis, which was to occur per standard policy and as
indicated on the intake forms within 30 days of admission to the jail. Of course, Ms.
Meyers passed before the 14-day and 30-day appointments were scheduled to occur
and there is no documentation in the records that those appointments were actually
scheduled — they would have been automatically populated at the appropriate time,
26
according to Nurse Black. (ECF No. 78, Initial Mental Health Evaluation, PgID 197475; Intake Nursing Interventions – Hepatitis and/or Jaundice, PgID 1962; Screening
and Receiving PgID 1968; Black Dep. 56-60, 83-84, 86-87, PgID 2855-56, 2862-63.)
Ms. Meyers was also referred on intake for a mental health screening, which
occurred on July 3, 2013, the day after her appointment with Nurse Jones. (ECF No.
78, Initial Mental Health Evaluation PgID 1974.) Ms. Meyers was seen by Limited
Licensed psychologist (“LLP”) Chantalle Brock, who has a Bachelor of Arts from the
University of Michigan, with a minor in women’s studies, and a Master of Arts in
clinical psychology from University of Detroit Mercy. (ECF No. 77-5, CCS Def.’s
Mot. Ex. 5, July 14, 2017 Deposition of Chantalle Brock 8, PgID 1812.) Ms. Brock
did not have an independent recollection of Ms. Meyers at the time of her deposition
but was able to discuss her interaction with Ms. Meyers through a review of her
records. (Id. at 9, PgID 1813.) Ms. Brock had nothing to do with Ms. Meyers’s
physical medical care and saw her on July 3, 2013, for an initial mental health
evaluation. Ms. Brock noted Ms. Meyers had a history of having taken a number of
prescription drugs, heroin use, denied suicide attempts, bipolar disorder, but no
current medications. (Brock Dep. 16-18, PgID 1814-15; ECF No. 78, Mental Health
Evaluation PgID 1975.) Ms. Brock noted Ms. Meyers as presenting “stable and
appropriate” with “goal-directed thought processes,” willing and able to engage with
27
her clearly and coherently. (Id. at 18, PgID 1815; ECF No. 78, PgID 1975.) Although
Ms. Brock was not specifically addressing medical condition, her notation that she
“presented appropriately” without further notation suggested that they had an
appropriate interaction – her speech was clear and coherent, her mood was stable.
(Id.) Ms. Brock’s notes indicate that Ms. Meyers reported that she had last used
heroin nine days ago. (Id. at 21-22, PgID 1816; ECF No. 78, PgID 1975.) Ms. Brock
educated Ms. Meyers on how to kite for mental health and did not schedule her for
follow up because Ms. Meyers was appropriate and oriented and stable and denied any
need for mental health services. (Brock Dep. 29-32, PgID 1818; ECF No. 78, PgID
1975.)
C.
Sheriff Wickersham’s Involvement, the Jail Administrator’s Role
and the Relevant Jail Policies and Procedures
Sheriff Anthony Wickersham testified that he has been the Sheriff of Macomb
County continuously since January 1, 2011. (ECF No. 82-8, County Defs.’ Mot. Ex.
7, Dec. 4, 2017 Deposition of Anthony M. Wickersham 6, PgID 2194.) It is
undisputed that Sheriff Wickersham had no personal involvement with Ms. Meyers’s
and was unaware of her medical condition until after she had passed and her death was
reported to him. Wickersham testified that he is the top policy maker for the Macomb
County Sheriff’s Office, he has full responsibility for the Macomb County Jail and
that his jail administrator at the time of Ms. Meyers death, Michelle Sanborn, was the
28
policy maker to whom he delegated the authority to make policy for the jail, including
overseeing the hiring and oversight of healthcare providers, including the contract
with CCS that was in effect on the date of Ms. Meyers’s death. (Id. at 9-11, 15, 24,
44-45, PgID 2195, 2196, 2198, 2203-04.) Ms. Sanborn does not have medical
training but she oversees the contract with CCS and ensures that the services outlined
in the contract are honored. (Id. at 45-46, PgID 2204.) There are approximately 1200
inmates in the jail on any given day and the jail processes between 17,000 and 19,000
inmates per year. (Id. at 17, PgID 2197.) Sheriff Wickersham spends less than one
hour per week actually in the jail, although his office is in a building adjacent to the
jail. (Id. at 23-24, PgID 2198.) Sheriff Wickersham has no personal involvement in
the healthcare needs of inmates unless something is specifically brought to his
attention. (Id. at 27-28m PgID 2199.)
Sheriff Wickersham was called and did arrive at the scene of Ms. Meyers’s
death on July 7, 2013. (Id. at 29, PgID 2200.) Sheriff Wickersham understood his
constitutional duty was to provide inmates the healthcare that they need and to attend
to those needs as requested. Inmates are given information on how to “kite” or
request to be seen by medical when they are booked, which explains that forms for
“kiting,” or requesting to be seen by medical personnel, are available upon request and
are generally to be given to the nursing staff on their rounds. However, if an inmate
29
is experiencing an emergency, they can contact the correctional staff and they will be
taken care of immediately if the correctional staff or supervisor determines that the
need is immediate. The correctional staff are not medical personnel but have
emergency response medical training and are trained to determine whether an inmate
is having pain or significant difficulty and if so, to reach out to the medical staff
immediately. (Id. at 33-39, PgID 2201-02.) Sheriff Wickersham did not recall an
instance when a violation of the policy regarding the process for submitting kites was
brought to his attention. (Id. at 40, PgID 2202.) Sheriff Wickersham explained that
if an inmate feels aggrieved by having kites ignored, there is a grievance process
available for the inmate to bring that to the attention of the jail staff and have the
grievance investigated. (Id. at 41-42, PgID 2203.)
With respect to any investigation into Ms. Meyers’s death, Sheriff Wickersham
reviewed the OPS Report prepared by Sergeant Medley to determine whether there
were any violations by jail personnel. He satisfied himself that there were not and
thus did not seek, although he could have, further investigation of the incident by
another county sheriff, or the FBI, or any other agency. (Id. at 48-52, PgID 2204-05.)
Sheriff Wickersham did not review any of the fellow inmate witness statements that
were prepared on the date of Ms. Meyers’s death although Sergeant Medley’s OPS
Report references those statements. (Id. at 52-53, PgID 2205-06.) Sheriff Wickersham
30
believes that the all jail staff acted appropriately with respect to Ms. Meyers’s death
although he admitted that having to wait five days to see health care for “severe pain”
was not an adequate “immediate” response. (Id. at 56-60, PgID 2206-07.) Sheriff
Wickersham testified that CCS does its own post-death mortality review and the jail
does its own separate in-house review, which was conducted by Ms. Sanborn. Sheriff
Wickersham did not attend either mortality review and typically does not attend them.
(Id. 81-82, PgID 2213.) Sheriff Wickersham was not aware of a policy expressly
requiring jail staff to monitor inmates’s food and water intake. (Id. at 89-90, PgID
2215.) Sheriff Wickersham confirmed that the jail contracts with CCS to provide
health care to the inmates and CCS is allowed to develop their own policies and
procedures for providing that care, making CCS the policy maker for health care at
the jail, although the jail has ultimate responsible for the health care and treatment of
the inmates, and ensures that CCS is abiding by its contractual obligations through
various accreditations that the jail is required to obtain. (Id. at 104-07, PgID 221819.)
Sheriff Wickersham provides an Affidavit establishing that he never met Ms.
Meyers, never had occasion to be in contact with her until after her death – he was not
even aware that she was incarcerated at the jail. (ECF No. 82-9, County Defs.’ Mot.
Ex. 8, Sept. 28, 2017 Affidavit of Anthony Wickersham, PgId 2243.) He did not
31
directly supervise Ms. Meyers’s housing unit or discuss her housing or medical
condition with any command or corrections officer prior to her death. Her death was
the first and only death at the Macomb County Jail of acute sepsis. (Id.)
Michelle Sanborn, the jail administrator at the time of Ms. Meyers’s death,
provides an Affidavit explaining that she never met with Ms. Meyers and did not have
personal involvement with her at anytime prior to her death. (ECF No. 82-10, Oct.
1, 2018 Affidavit of Michelle Sanborn, PgID 2247.) Ms. Sanborn explains that ever
since 1990, including, 2013, the Macomb County Jail has met the Michigan
Department of Corrections (“MDOC”) compliance requirements, including being the
first “mega jail” (over 1,000 beds) in Michigan to receive the coveted 100%
compliance award. In addition to meeting all MDOC compliance requirements, the
County practices and the Sheriff’s General Orders have met the rigorous standards of
the National Commission on Correctional Health Care (“NCCHC”), which is a widely
recognized independent body that monitors the compliance of correctional facilities
around the country with 67 different standards. To be accredited, a facility must
comply with 100% of the standards deemed “essential,” and must be 85% compliant
with the standards deemed “important.” Between January 7-9, 2013, NCCHC
inspectors conducted an on-site review of the Jail and its policies and practices and
audited medical records for compliance and granted accreditation following their
32
review. The Macomb County Jail has been continuously accredited by the NCCHC
since 1998. Ms. Sanborn is familiar with (indeed drafted) the Macomb County
Sheriff’s General Orders (some of which are under review in this case) and testifies
that each of these policies (5.01, 5.02, 5.04, 5.07, 5.11, 5.12, 5.13, 5.16, 5.19, 5.45)
is in compliance with MDOC rules for jails and lock ups, and in compliance with the
American Correctional Association Standards for Adult Local Detention Facilities and
the NCCHC. (Id. PgID 2247-49.)
In specific, Ms. Sanborn testifies that General Order 5.45 (“Prisoner Health
Care”), defers all medical judgment to the health care professionals with whom the jail
contracts, as required by the MDOC Administrative Rules for Jails and Lock Ups and
in compliance with the NCCHC standards to prevent corrections staff from making
medical decisions. (Id. PgID 2249-50.) In 2011, a committee was formed and the
County retained an independent benefits services manager to consult on selecting the
most qualified health care provider. The contract was awarded to CCS in September
2011, and the County entered into an Inmate Healthcare Services Management
Agreement with CCS that complies with all NCCHC standards. Ms. Sanborn actively
monitors the Agreement and CCS to make sure that constitutionally adequate care is
being delivered to the inmates. Ms. Sanborn has contact on a daily basis with CCS
health care staff, she observes medical rounds on the floors, clinical activities,
33
screenings, history and physicals, and emergency responses. She attends monthly
CCS Medical Advisory Committee meetings and quarterly Continuous Quality
Improvement meetings, at which all aspects of prisoner health care are discussed and
evaluated. (Id. PgID 2250-51.) Ms. Sanborn conducts audits of CCS screenings,
initial health assessments, and segregation rounds in order to monitor compliance with
NCCHC standards. In the event that non-compliance is revealed, she personally
works with CCS staff to bring the procedures back into compliance. (Id. PgID 2251.)
The County also hired Health Decisions, Inc., an independent contract monitoring
firm, to assist the County in overseeing the CCS contract. (Id. PgID 2252.) Ms.
Sanborn’s Deposition mirrors her Affidavit. (ECF No. 82-14, County Defs.’ Mot. Ex.
13, Sept. 28, 2017 Deposition of Michelle Sanborn.)
Macomb County Lieutenant Lori G. Misch provides an Affidavit attesting to
the training that all Macomb County Corrections Officers receive. All Corrections
Officers are required to complete a “Corrections Academy” within their first year of
employment, which includes 160 hours of classroom training on the following topics:
Booking and Intake: 8 hours; Correctional law: 16 hours; Cultural Diversity: 4 hours;
Custody and Security: 24 hours; Defensive Tactics: 40 hours; Ethics: 2 hours; Fire
Safety: 12 hours; First Aid/CPR/AED: 8 hours; Interpersonal Communications” 16
hours; Prisoner Behavior: 8 hours; Report Writing: 8 hours; Workplace Harassment:
34
2 hours; Stress Management: 4 hours; and Suicide Awareness: 8 hours. (ECF No. 8212, County Defs.’ Mot. Ex. 11, Oct. 1, 2018 Affidavit of Lori G. Misch ¶¶ 3-4.) In
addition, each officer is required to complete an additional 20 hours of in-service
training on an annual basis. (Id. ¶ 5.) The modules on Custody and Security, Prisoner
Behavior, Suicide Awareness, Interpersonal Communication, and First Aid/CPR/AED
are directed to training in the safety and well-being of inmates. (Id. ¶ 8.)
D.
The Medical Expert Testimony
1.
Plaintiff’s Medical Expert
Plaintiff’s medical expert, Susi Vassallo, MD is a clinical professor of
Emergency Medicine at the New York University School of Medicine. (ECF No. 9028, Pl.’s Resp. Ex. 27, Feb. 15, 2018 Expert Report of Susi Vassallo, PgID 2930-34.)
Defendants do not appear to question Dr. Vassallo’s expertise or training, who had
practiced Emergency Medicine at Bellevue Hospital in New York, which is the
primary receiving hospital for male prisoners of Rikers Island Jails. (Id. at PgID
2930.) In addition to her MD, Dr. Vassallo also has a Master’s Degree in Health Care
Management and is a Certified Correctional Health Professional, who has been
qualified to act as a medical expert in multiple federal courts. (Id.)
Dr. Vassallo begins her medical opinion with a discussion of Ms. Meyers’s
hospital records from her treatment there on Friday, June 21, 2013, two days before
35
she was arrested and incarcerated at the Macomb County Jail. (Id. at PgID 2931; ECF
No. 80, Defs.’ Mot. Ex. I, St. John Hospital 6/21/2013 MRI Report, PgID 2000-02.)
Dr. Vassallo reports that Ms. Meyers’s history, physical exam and testing at St. John’s
Hospital found that she had a staph infection in her blood and urine, and a spinal
epidural abscess. She received one dose of IV antibiotics at St. John’s and was
discharged on oral antibiotics. (Id.) Dr. Vassallo opines that when Ms. Meyers
entered the jail on June 25, 2013, her vital signs were abnormal, she was tachycardic
with a pulse rate of 100 bpm, and her blood pressure was low, both signs of sepsis.
Her temperature was 96.1, two degrees below normal. Dr. Vassallo opines that these
abnormal vital signs and knowledge of the recent hospital visit should have triggered
immediate medical attention. (Id. at PgID 2932.) Dr. Vassallo is critical of the fourday wait Ms. Meyers experienced before obtaining medical care after kiting, and finds
that the absence of a record of Ms. Meyers’s temperature by Nurse Jones on July 3,
2013 was a failure to obtain a critical vital sign. (Id.)
Dr. Vassallo opines that Nurse Jones was operating outside of her scope of
practice when she attempted to diagnose Ms. Meyers’s condition and assessed her as
“alteration in comfort – nonspecific.” (Id. at PgID 2933.) Dr. Vassallo opines that
Nurse Jones was insufficiently trained to recognize the serious medical needs of Ms.
Meyers and she opines that both CCS and the jail are at fault for placing a health care
36
provider without sufficient credentials or training to identify Ms. Meyers’s serious
medical need, and these failures led to Ms. Meyers’s death. Dr. Vassallo opines that
had Ms. Meyers’s been properly diagnosed and treated for her bacterial infection, she
would have lived. (Id.)
Dr. Vassallo was deposed in this case, and explained her extensive medical
background, and resident teaching experience, none of which is questioned by the
Defendants. (ECF No. 77-12, June 28, 2018 Deposition of Susi Vassallo, MD PgID
1894.) Dr. Vassallo testifies that she always teaches her residents that the doctor, not
the patient, is the historian and that the examining physician’s role is to identify a risk
factor, or an abnormal vital sign, or a complaint and drill down in a very proactive
way. (Vassallo Dep. 29, PgID 1902.) Dr. Vassallo states, for example, that if she
hears a heroin addict complain of back pain, she goes to the most serious pathology
because heroin users get infections in their spines. (Id. at 33-34, PgID 1903.) Dr.
Vassallo is of the opinion that LPNs and RNs, while they may not have the expertise
to diagnose, must have the knowledge sufficient to know when to ask for a higher
level of care. (Id.) Dr. Vassallo admits that there is no evidence in the records of this
case that Ms. Meyers told any of the CCS or jail staff where she had her MRI
performed, only that she had an MRI and was in the hospital two days prior to her
arrest. (Id. at 49, PgID 1907.) Dr. Vassallo admits that Ms. Meyers’s vital signs were
37
within the normal range for an adult at intake at the jail, but Dr. Vassallo says that in
the context of a heroin user, normal is no longer normal. (Id. at 50-54, PgID 190708.) Dr. Vassallo states that if her heart rate was high due to nervousness or anxiety,
her blood pressure and temperature would not be low. (Id. at 53-56, PgID 1908.) Dr.
Vassallo admits that none of Ms. Meyers’s other conditions, chronic Hepatitis C or
bipolar disorder, were in anyway related to her sepsis. (Id. at PgID 1909.) Nor was
her arm abscess from two months earlier connected to her sepsis. (Id.) Dr. Vassallo
was critical of the brevity of the intake screening form but most critical of Nurse
Jones’s failure to follow up on the fact that Ms. Meyers was a heroin user and was in
the hospital two days prior for a pregnancy test and had an MRI of her back, and the
failure of the records to reflect each question asked and the answers given. (Id. at
PgID 1910-11.) Dr. Vassallo also understands the term “urgent” to mean someone is
in need of immediate medical attention and “emergent” means call 911. (Id. at 67-69,
PgID 1911-12.) Dr. Vassallo opined that the definitions of “emergent, urgent,
routine,” should have been spelled out in the CCS policy and not left to the discretion
of the CCS nurses. (Id.)
The essence of Dr. Vassallo’s opinion is that Nurse Jones should have realized
that when a heroin user presents with back pain, its likely not a muscular ache but
more likely a bony infection of some type. (Id. at 77, PgID 1914.) She does not
38
dispute that Nurse Jones stated that she did take Ms. Meyers’s temperature and if she
had found it elevated, she would have proceeded down a pathway for fever. (Id. at 8285, PgID 1915.) Dr. Vassallo opines that the absence of a recorded temperature is
“absolutely outrageous,” as was the assessment of “muscular ache.” (Id. at 85-86,
PgID 1916.) Dr. Vassallo testifies that if you have worked with prisoners and heroin
addicts as she has, you know that back pain and low temperature mean that the person
is dying of an infection and that Nurse Jones should have known that Ms. Meyers’s
vitals were not normal for a heroin user and should have provided different treatment.
(Id.) Her opinion is that an LPN, an RN or any medical provider would have known
that Ms. Meyers was in a critical condition. She opines that because CCS staffed sick
call with somebody who had no medical knowledge and assessed a muscular ache,
Ms. Meyers died. (Id. at 89-91, PgID 1917.) Dr. Vassallo admits that the SOAP
form prepared by Nurse Jones does not contain any findings that would have directed
Nurse Jones down a different pathway, but her criticism is that Nurse Jones did not
look closely enough. (Id. at 94-96, PgID 1918.) The pathway that Nurse Jones was
following, in Dr. Vassallo’s opinion, did not direct Nurse Jones to ask any of the
important questions in this case. Her SOAP form finds no abnormalities but she was
not asking the right questions, not looking for the right things, because this pathway
led her down the wrong path. (Id. at 97-100, PgID 1919.) Dr. Vassallo opines that
39
when Nurse Jones found “severe discomfort” back pain (which the records indicate
Ms. Meyers’s complained of because Nurse Jones prescribed Tylenol which is only
indicated in the pathway for “severe discomfort”) in an IV heroin user who just had
an MRI of her back, it was obvious to any medical professional that Ms. Meyers was
in critical condition. (Id. at 101-03, PgID 1920.)
In the end however, Dr. Vassallo does not place the blame on Nurse Jones, and
states that “through no fault of her own” Nurse Jones was insufficiently trained to
recognize Ms. Meyers’s condition and was directed down the wrong the pathway. (Id.
at 104-06, PgID 1920-21.) When informed that, under Michigan’s Public Health
Code, an LPN may perform nursing activities under the supervision of a nurse or a
physician, Dr. Vassallo withdrew her opinion that Nurse Jones was not qualified to
evaluate Ms. Meyers. (Id. at 110-12, PgID 1922.)
Dr. Vassallo expressed the same opinion with regard to Nurse Black, who was
the Director of Nursing and who, when seeing the information collected by Nurse
Jones, i.e. a heroin user with back pain who had been seen in a hospital two days
earlier and undergone an MRI, should have recognized a life-threatening situation and
should never have signed off on Nurse Jones’s report. Dr. Vassallo opines that Nurse
Black should have elevated Ms. Meyers to see a doctor – but she stops short of saying
that Nurse Black actually appreciated the significance of Ms. Meyers’s condition and
40
chose not to move her to higher level of care – specifically she stated that she did not
“know what [Nurse Black] did or did not appreciate,” and “d[id] not know what was
in her mind.” She only knows what she should have done. (Id. at 113-117, 124-28
PgID 1923, 1925-27.) Dr. Vassallo had no opinion regarding Chantalle Brock’s
treatment of Ms. Meyers, or Kelly Hedtke’s, or any other individual CCS Defendant.
(Id. at 116-18, PgID 1923-24.)4
2.
Defendants’ Medical Experts
Defendants’ correctional nursing expert, Kathryn J. Wild, RN, MPA, CCHPRN, who has been an RN since 1984 and has worked in the correctional healthcare
field for the past 31 years, opines that the medical intake screening completed on Ms.
Meyers on her admission to the jail met with the NCCHC, MDOC, and CCS policies
and procedures for inmate receiving screening. (ECF No. 77-11, Defs.’ Mot. Ex. K,
March 19, 2018 Expert and Supplemental Report of Kathryn J. Wild 9-12, PgID 188585.) Ms. Wild notes that at the time of screening, Ms. Meyers was alert and oriented,
and denied using any illegal substance within a month of her booking. Her vital signs
were normal, and although she had a history of prior drug use, there was no indication
4
Plaintiff also proffers the testimony of proposed expert Dr. L. J. Dragovic. The
Court has issued a separate Opinion and Order entered this day finding Dr.
Dragovich’s opinions inadmissible under Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993).
41
that she should be placed on withdrawal monitoring. Ms. Meyers was appropriately
referred chronic care and mental health follow up. (Id. at 10, PgID 1886.) Ms. Wild
opines that health care personnel must rely on the patient to report accurate
information during screening and that there was nothing in Ms. Meyers’s presentation
or prior incarceration history that required additional or different referrals. (Id.) Ms.
Wild opines that Nurse Jones’s July 2, 2015 assessment and intervention level was
well within the standard of care based on Ms. Meyers’s presentation of complaint of
pain in her lumbar area with no obvious abnormalities noted and normal vital signs.
(Id. at 11, PgID 1887.) Ms. Wild opines in her Supplemental Report, in response to
Dr. Vassallo’s opinions regarding Nurse Jones’s scope of practice, that under
Michigan’s Public Health Code, an LPN may perform nursing activities under the
supervision of a nurse or a physician. (Id. at PgID 1890.) Nurse Jones’s assessment
of Ms. Meyers was reviewed by the supervising nurse, Nurse Black the next morning
and Nurse Jones was working well within her scope of practice as an LPN in the State
of Michigan. (Id. at PgID 1890.)
Defendants’ medical expert Arnold J. Feltoon, MD, FAAEM, CCHP, opines
that Ms. Meyers gave no information as part of her medical screening that would
suggest any recent or concurrent acute illness, and that at the time of her examination
by Nurse Jones on July 2, 2013, there was nothing to suggest any type of serious
42
illness or injury. (ECF No. 77-13, CCS Defs.’ Mot. Ex. M, July 14, 2017 Expert
Report of Arnold Feltoon 4-5, PgID 1944-45.) Dr. Feltoon opines that because Ms.
Meyers was not forthcoming with nursing staff about the type of MRI she had or the
reason the test was ordered, or the results of the MRI, there was no reason to connect
the MRI with a 9-day history of back pain. (Id. at 1945.) Dr. Feltoon opines that Ms.
Meyers died from multiple infectious processes likely caused by her IV drug abuse
and there is no evidence that her condition changed between July 2, 2013, when she
was evaluated by Nurse Jones, and July 7, 2013, when she died. (Id.)
Defendants’ medical expert, Dr. Randall R. Stoltz, MD, CCHP, notes that Ms.
Meyers denied any need for medical attention when she entered the jail on June 25,
2013, and she did not mention any previous MRI or back pain during her receiving
screening, when she appeared normal and oriented and expressly denied sweats or
fatigue. (ECF No. 77-14, CCS Defs.’ Mot. Ex. N, July 13, 2017 Expert Report of
Randall Stoltz at 4, PgID 1951.) Dr. Stoltz opines that on July 2, 2013, Ms. Meyers
had good range of motion and no other symptoms apart from back pain that started
nine days earlier and it is unsurprising that Ms. Meyers was laying in her bunk often
as she had explained to fellow inmates that she had broken her back. (Id. at PgID
1952.) Dr. Stoltz opines that if Ms. Meyers had informed CCS or jail staff that she
had an MRI suggesting an abscess, further follow up may have been indicated. But
43
as Ms. Meyers did not present with any outward symptoms of illness or infection to
either medical or mental health care staff, and did not inform them of the reason for
or result of her MRI, their course of conduct was appropriate. (Id.) On March 19,
2018, Dr. Stoltz supplemented his July 13, 2017 Expert Report after reviewing Dr.
Vassallo’s and Dr. Dragovic’s expert reports, and stated that Dr. Vassallo relied on
information that the CCS medical staff never possessed and that based on what the
CCS staff, including Nurse Jones and Ms. Brock, did know and observe, the medical
care delivered was appropriate and the nursing protocol was properly followed. (Id.
at PgID 1954.) Dr. Stoltz noted that Ms. Meyers had many opportunities to express
her complaints to both jail and medical staff, in particular at her mental health visit
with Ms. Brock on July 3, 2013, when Ms. Meyers appeared normal and well-oriented
and conversational. (Id. at PgID 1955.)
II.
LEGAL STANDARD
Summary judgment is appropriate where the moving party demonstrates that
there is no genuine dispute as to any material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986); Fed. R. Civ. P. 56(a). “A fact is ‘material’ for purposes of a motion
for summary judgment where proof of that fact ‘would have [the] effect of
establishing or refuting one of the essential elements of a cause of action or defense
asserted by the parties.’” Dekarske v. Fed. Exp. Corp., 294 F.R.D. 68, 77 (E.D. Mich.
44
2013) (quoting Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984)). A dispute
is genuine “if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
“In deciding a motion for summary judgment, the court must draw all
reasonable inferences in favor of the nonmoving party.” Perry v. Jaguar of Troy, 353
F.3d 510, 513 (6th Cir. 2003) (citing Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986)). At the same time, the non-movant must produce
enough evidence to allow a reasonable jury to find in his or her favor by a
preponderance of the evidence, Anderson, 477 U.S. at 252, and “[t]he ‘mere
possibility’ of a factual dispute does not suffice to create a triable case.” Combs v. Int’l
Ins. Co., 354 F.3d 568, 576 (6th Cir. 2004) (quoting Gregg v. Allen–Bradley Co., 801
F.2d 859, 863 (6th Cir. 1986)). Instead, “the non-moving party must be able to show
sufficient probative evidence [that] would permit a finding in [his] favor on more than
mere speculation, conjecture, or fantasy.” Arendale v. City of Memphis, 519 F.3d 587,
601 (6th Cir. 2008) (quoting Lewis v. Philip Morris Inc., 355 F.3d 515, 533 (6th Cir.
2004)). “The test is whether the party bearing the burden of proof has presented a jury
question as to each element in the case. The plaintiff must present more than a mere
scintilla of the evidence. To support his or her position, he or she must present
evidence on which the trier of fact could find for the plaintiff.” Davis v. McCourt, 226
45
F.3d 506, 511 (6th Cir. 2000) (internal quotation marks and citations omitted). That
evidence must be capable of presentation in a form that would be admissible at trial.
See Alexander v. CareSource, 576 F.3d 551, 558–59 (6th Cir. 2009).
III.
ANALYSIS
A.
Plaintiff’s Eighth Amendment Deliberate Indifference Claim
Against the Individual Defendants
“To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation
of a right secured by the Constitution and laws of the United States, and must show
that the alleged deprivation was committed by a person acting under color of state
law.” West v. Atkins, 487 U.S. 42, 48 (1988). “‘It is clear that a private entity which
contracts with the state to perform a traditional state function such as providing
medical services to prison inmates [here CCS] may be sued under § 1983 as one
acting ‘under color of state law.’” Carl v. Muskegon County, 763 F.3d 592, 596 (6th
Cir. 2014) (quoting Hicks v. Frey, 992 F.2d 1450, 1458 (6th Cir. 1993)). “The
constitutional right at issue [here] arises from the Eighth Amendment’s prohibition on
cruel and unusual punishment because [Meyers] was serving a criminal sentence at
the time [s]he died.” Shadrick v. Hopkins County, Ky., 805 F.3d 724, 736 (6th Cir.
2015). The Eighth Amendment “forbids prison officials from ‘unnecessarily and
wantonly inflicting pain’ on an inmate by acting with ‘deliberate indifference’ toward
the inmate’s serious medical needs.” Blackmore v. Kalamazoo Cnty., 390 F.3d 890,
46
895 (6th Cir. 2004) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)).
“An Eighth Amendment claim has two components, one objective and one
subjective. “ Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001). The objective
component is satisfied if the plaintiff alleges that the medical need at issue is
“sufficiently serious.” Id. at 703 (quoting Farmer, 511 U.S. at 834). “[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, 390 F.3d at 897 (quoting
Gaudreault v. Municipality of Salem, 923 F.2d 203, 208 (1st Cir. 1990)) (emphasis
in original). Also “[c]ourts have analyzed the seriousness of a deprivation by
examining the effect of the delay in treatment.” Taylor v. Franklin County, Ky., 104
F. App’x 531, 538 (6th Cir. 2004) (citing Napier v. Madison County, Ky., 238 F.3d
739, 742 (6th Cir. 2001)). “A medical condition is sufficiently serious to confer
constitutional protections where delay in treatment may cause ‘a serious medical
injury.’” Kindl v. City of Berkley, 798 F.3d 391, 401 (6th Cir. 2015) (quoting
Blackmore, 390 F.3d at 898).
In Taylor, plaintiff was suffering from an undiagnosed tumor that was pressing
on his spine and cutting off blood supply to his spinal cord, resulting in bouts of
incontinence and pain in his back. The Sixth Circuit explained that based on
47
plaintiff’s expert’s testimony as to the seriousness of the tumor and to the effect of its
continued growth during plaintiff’s incarceration, plaintiff’s signs of incontinence and
back pain were manifestations of a serious medical condition, whether or not
defendants appreciated that seriousness:
To satisfy the objective component, Plaintiff must establish that his
medical needs, which included claims of serious back pain, loss of
feeling in his feet and legs, and bouts of incontinence, were “sufficiently
serious” to warrant the requisite medical attention.
*
*
*
Here, Plaintiff was plagued with terminal cancer of the spine. This
ailment seriously affected Plaintiff's mobility and control of his bladder,
while causing great pain in his spinal column and lower extremities.
*
*
*
Given the verified medical testimony of the seriousness of Plaintiff's
condition, this Court views Plaintiff's complaints of back pain, loss of
mobility and bladder incontinence as serious medical conditions which
placed Plaintiff in substantial risk of developing greater health problems
when left untreated.
Taylor v. Franklin County, Ky., 104 F. App’x 531, 538 (6th Cir. 2004).
Similarly here, Plaintiff has placed into the record verifying expert medical
evidence that Plaintiff’s alleged symptoms of severe back pain and sweating were
manifestations of her underlying very serious medical condition (acute sepsis) that
ultimately resulted in her death. While Defendants may or not have appreciated the
seriousness of these symptoms and may or may not have consciously chosen to ignore
48
them (the subjective component) Plaintiff has satisfied the objective component. See
also North v. Cuyahoga County, 754 F. App’x 380, 387 (6th Cir. 2018) (finding that
plaintiff’s undiagnosed endocarditis, which plaintiff’s expert testified was “a serious
and potentially fatal medical issue,” was an objectively serious medical need satisfying
the objective component of the deliberate indifference analysis); Winkler v. Madison
County, 893 F.3d 877, 890-91 (6th Cir. 2018) (“There is no question that Hacker's
perforated duodenal ulcer, which ultimately caused his death, met this objective
component.” (citing Rouster v. County of Saginaw, 749 F.3d 437, 446 (6th Cir. 2014));
Smith v. Campbell County, Ky., No. 16-13, 2019 WL 1338895 (E.D. Ky. March 25,
2019) (finding that plaintiff with an undiagnosed epidural abscess and osteomyelitis
of the spine resulting in sepsis and paraplegia satisfied the objective component of the
deliberate indifference analysis). Here Plaintiff’s expert testified that Ms. Meyers’s
epidural abscess could have been treated and she could have been saved and she died
from the untreated epidural abscess. At this stage we must accept that expert testimony
as true. Kindl, 798 F.3d at 402. For purposes of the deliberate indifference analysis,
Plaintiff has satisfied the objective component.5
5
The Sixth Circuit recently observed that it “has previously held medical conditions
resulting in death are sufficiently serious” to “automatically” satisfy the objective
component. Blaine v. Louisville Metro. Gov’t, No. 18-5224, at 14 n. 12 (6th Cir. April
16, 2019) (citing Winkler, 893 F.3d at 890-91). Even were that not the case, here, as
in Blaine, Plaintiff cannot satisfy the subjective component, with the result that the
49
“To satisfy the subjective component, the plaintiff must allege facts which, if
true, would show that the official being sued subjectively perceived facts from which
to infer substantial risk to the prisoner, that he did in fact draw the inference, and that
he then disregarded that risk.” Comstock, 273 F.3d at 703. “The requirement that the
official have subjectively perceived a risk of harm and then disregarded it is meant to
prevent the constitutionalization of medical malpractice claims; thus, a plaintiff
alleging deliberate indifference must show more than negligence or the misdiagnosis
of an ailment.” Comstock, 273 F.3d at 703 (citing Estelle, 429 U.S. at 106, 97 S.Ct.
285; Farmer, 511 U.S. at 835, 114 S.Ct. 1970). See also Johnson v. Karnes, 398 F.3d
868, 875 (6th Cir. 2005) (“a plaintiff alleging deliberate indifference must show more
than negligence or the misdiagnosis of an ailment” so that “[w]hen a prison doctor
provides treatment, albeit carelessly or inefficaciously, to a prisoner, he has not
displayed a deliberate indifference to the prisoner’s needs, but merely a degree of
incompetence which does not rise to the level of a constitutional violation.”) “Although
the [] subjective standard ‘is meant to prevent the constitutionalization of medical
malpractice claims,’ a plaintiff need not show that the officer acted with the specific
intent to cause harm. Phillips v. Roane County, Tenn., 534 F.3d 531, 540 (6th Cir.
Court need not conclusively determine the objective component. Nonetheless, the
Court finds ample precedent to conclude that the objective component is satisfied here.
50
2008) (quoting Comstock, 273 F.3d at 703). “Indeed, ‘deliberate indifference to a
substantial risk of serious harm to a prisoner is the equivalent of recklessly
disregarding that risk.’” Id. (quoting Farmer, 511 U.S. at 836).
Because officials “do not readily admit this subjective component, [] ‘it [is]
permissible for reviewing courts to infer from circumstantial evidence that a prison
official had the requisite knowledge.’” Id. (first alteration added). The subjective
component can “be established simply by showing that the correctional officer ‘refused
to verify underlying facts that he strongly suspected to be true, or declined to confirm
inferences of risk that he strongly suspected to exist.’” Richko v. Wayne County,
Mich., 819 F3d 907, 918 (6th Cir. 2016) (quoting Farmer, 511 U.S. at 843 n. 8). See
also Curry v. Scott, 249 F.3d 493, 506 (6th Cir. 2001) (observing that “a factfinder may
infer actual knowledge through circumstantial evidence, or may conclude a prison
official knew of a substantial risk from the very fact that the risk was obvious”)
(internal citation and quotation marks omitted). “[A] prison official may ‘not escape
liability if the evidence showed that he merely refused to verify underlying facts that
he strongly suspected to be true, or declined to confirm inferences of risks he strongly
suspected to exist.” Taylor, 104 F. App’x at 539 (quoting Farmer, 511 U.S. at 843 n.
8.) “Expert testimony that speaks to the obviousness of a risk can be used to
demonstrate a dispute of material fact regarding whether a prison doctor exhibited
51
conscious disregard for the plaintiff’s health.” Smith v. Campbell County, 2019 WL
1338895, at *14 (citing LeMarbe v. Wisneski, 266 F.3d 429,437-38 (6th Cir. 2001)
(finding that where plaintiff presented substantial expert testimony that it would be
“obvious to anyone with a medical education” that the presence of five liters of bile in
plaintiff’s abdomen required immediate surgical attention, a reasonable factfinder
could conclude that a doctor who failed to seek that attention was aware of a
substantial risk of harm and consciously disregarded that risk by failing to stop the bile
leak in a timely manner)).
A particular defendant’s level of knowledge and training also must be
considered in the subjective analysis:
The question of whether an official actually perceived, inferred, or
disregarded a risk is a question of fact for the jury “subject to
demonstration in the usual ways, including inference from circumstantial
evidence.” Farmer, 511 U.S. at 842, 114 S.Ct. 1970; Clark–Murphy v.
Foreback, 439 F.3d 280, 290 (6th Cir. 2006). Yet a court must also
consider other factors—such as the obviousness of the risk, the
information available to the official, the observable symptoms, and the
expected level of knowledge of the particular official. Farmer, 511 U.S.
at 842–43, 114 S.Ct. 1970; LeMarbe, 266 F.3d at 436–39. If a risk is
obvious or if it is well-documented and circumstances suggest that the
official has been exposed to information such that she must have known
of the risk, the evidence is sufficient for a jury to find that the official had
knowledge. Farmer, 511 U.S. at 842–43, 114 S.Ct. 1970.
Sours v. Big Sandy Regional Jail Authority, 593 F. App’x 478, 484 (6th Cir. 2014)
(emphasis added).
52
Corrections officers are entitled to rely on the medical judgment of prison
healthcare providers and “commit[] no act of deliberate indifference in adhering to
[the] advice” of a medical professional because “nonmedical jail personnel are entitled
to reasonably rely on the assessments made by the medical staff.” Winkler, 893 F.3d
at 895 (citing Spears v. Ruth, 589 F.3d 249, 255 (6th Cir. 2009) and quoting McGaw
v. Sevier County, Tenn., 715 F. App’x 495, 498-99 (6th Cir. 2017)). In McGaw, the
Sixth Circuit explained:
Defendant officers were entitled to qualified immunity because they did
not act with deliberate indifference to McGaw’s medical needs when they
relied on what they reasonably believed to be appropriate advice from
Nurse Sims. Here, the officers placed McGaw in the observation cell
because they reasonably believed, based on Nurse Sims’s assessment, that
this was the medically appropriate thing to do, and are thus entitled to
qualified immunity for acting pursuant to that assessment. None of the
officers had medical training, and there is no evidence that they knew or
believed that Nurse Sims’s diagnosis was anything but correct. As the
Third Circuit has reasoned, where “a prisoner is under the care of medical
experts ... a non-medical prison official will generally be justified in
believing that the prisoner is in capable hands.” Spruill v. Gillis, 372 F.3d
218, 236 (3d Cir. 2004). The record does not show any evidence that the
officers were or should have been aware that their lay understandings of
this situation were superior to Nurse Sims’s trained assessment. In
retrospect, it appears clear that Nurse Sims’s recommendation should
have been for McGaw to be taken to the hospital, but the question of
whether the officers acted with deliberate indifference is based on what
the officers themselves knew at the time. See Spears v. Ruth, 589 F.3d
249, 255 (6th Cir. 2009). Without any indication that the officers could
or should have assessed any deficiency in Nurse Sims’s diagnosis at the
time she made it, the officers are entitled to qualified immunity when they
acted on her counsel.
53
715 F. App’x at 497. See also Hamilton v. Pike County, Ky., No. 11-99, 2013 WL
529936, at *7 (E.D. Ky. Feb. 11, 2013) (Thapar, J.) (“Non-medical prison officials,
such as Jailer Scott, act reasonably when they rely on the judgment of the prison
medical staff.”) (collecting circuit cases holding same). Specifically, jail staff may
reasonably rely on the medical care provided by an LPN. McGaw, 715 F. App’x at 498
(“Nor has this court ever recognized the status of an LPN as precluding an officer from
relying on that LPN’s judgment”).6
6
As discussed infra, the Sixth Circuit in McGaw found no deliberate indifference on
the part of the jailers but also declined to dismiss the claim against the County for
failure to properly train the jailers. The court held:
[T]his court lacks jurisdiction over Sevier County’s claim because the
county’s liability is not foreclosed by our determination that the officers
were entitled to qualified immunity. The district court denied the county’s
motion for summary judgment because it held that there were genuine
issues of material fact as to whether the county had properly trained its
officers to recognize inmates’ medical needs. The fact that these officers
did not act with deliberate indifference because they reasonably relied on
Nurse Sims’s diagnosis of McGaw’s needs does not resolve the disputes
over whether the county’s training procedures were adequate or
appropriate as a whole. Lack of training could conceivably have affected
Nurse Sims’s action, and that would not at all intertwine with the officers’
immunity claims. Without such intertwining, pendent appellate
jurisdiction is lacking, and it is not appropriate for us to exercise it here.
715 F. App’x at 499. The Sixth Circuit was referring to the district court’s ruling that
because “the County never trained its officers by providing them with any necessary
medical training in order to countermand the decision-making of the on-site medical
contractors . . . a reasonable jury could conclude that Sevier County’s failure to train
its correction officers regarding medical emergencies was the result of the County’s
54
Under the doctrine of qualified immunity, “government officials performing
discretionary functions generally are shielded from liability for civil damages insofar
as their conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). “In determining whether the government officials in this case are entitled
to qualified immunity, we ask two questions: First, viewing the facts in the light most
favorable to the plaintiff, has the plaintiff has shown that a constitutional violation has
occurred? Second, was the right clearly established at the time of the violation?”
Phillips, 534 F.3d at 538-39. If multiple government officials are alleged to have
violated a plaintiff’s [Constitutional] rights, each officer’s conduct must be analyzed
individually.
Although CCS and the Defendant CCS nurses are considered state actors for
purposes of being amenable to suit under § 1983, see West, supra, “[b]eing subject to
suit under § 1983, however, does not mean that a party has the right to assert qualified
deliberate indifference.” McGaw v. Sevier Cty., No. 3:15-cv-12, 2016 U.S. Dist.
LEXIS 191689, at *17-21 (E.D. Tenn. Nov. 14, 2016). As discussed infra, McGaw is
not the only case expressing a sentiment on the part of the Sixth Circuit to permit a
claim against the municipality to go forward despite the absence of a constitutional
violation on the part of an individual defendant. Here, Plaintiff has not named any of
the individual Defendant corrections officers and has not filed a claim against any of
them for deliberate indifference. Nonetheless, the Court will analyze Plaintiff’s policy
claim against the County on the assumption that the Sixth Circuit would allow such a
claim to proceed under these circumstances.
55
immunity.” Harrison v. Ash, 539 F.3d 510, 521 (6th Cir. 2008) (“Here [] there are no
special concerns to distinguish [CCS] from other private firms and thus, there is no
need to extend qualified immunity to Defendant nurses.”). And of course, the doctrine
of qualified immunity does not protect municipalities. “[T]he doctrine of qualified
immunity safeguards only certain natural person defendants in their individual
capacities.” Scott v. Clay County, Tenn., 205 F.3d 867, 880 (6th Cir. 2000) (emphasis
in original). Finally, under § 1983, “[e]ach defendant’s liability must be assessed
individually based on his own actions.” Binay v. Bettendorf, 601 F.3d 640, 650 (6th
Cir. 2010) (citing Dorsey v. Barber, 517 F.3d 389, 399 n. 4 (6th Cir. 2008)).
1.
Individual capacity supervisory liability claim against Sheriff
Wickersham.
Sheriff Wickersham had no interaction with Ms. Meyers and had no knowledge
of her presence in the jail until after her death and Plaintiff does not suggest otherwise.
Plaintiff sues Sheriff Wickersham in his individual capacity in his supervisory role as
the individual responsible for jail operations, arguing that Sheriff Wickersham
tolerated Officers DeHate and Hill’s deliberate indifference to Ms. Meyers’s serious
medical needs. Plaintiff’s theory of liability against the Sheriff appears to be that the
Sheriff knew that his corrections officers lacked medical training on how to identify
a serious medical need such as acute sepsis and yet he failed to supervise them
appropriately. Plaintiff’s Response devotes less than one full page to supporting the
56
argument that Sheriff Wickersham is liable in his individual capacity under a theory
of supervisory liability. (Pl.’s County Resp. 19, PgID 3107.) As a threshold matter,
Plaintiff appears to “‘improperly conflate[] a § 1983 claim of individual supervisory
liability with one of municipal liability.’” Heyerman v. County of Calhoun, 680 F.3d
642, 647 (6th Cir. 2012) (quoting Phillips, 534 F.3d at 543). It is well established that
supervisory liability “cannot be premised solely on a theory of respondeat superior, or
the right to control employees.” Id. at 647. “A supervisor is not liable pursuant to §
1983 for failing to train unless the supervisor “either encouraged the specific incident
of misconduct or in some other way directly participated in it. At a minimum a plaintiff
must show that the official at least implicitly authorized, approved, or knowingly
acquiesced in the unconstitutional conduct of the offending officers.” Phillips, 534
F.3d at 541 (quoting Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)).
Here, Plaintiff has produced no evidence that Sheriff Wickersham had any
knowledge of Ms. Meyers’s medical condition or of how she was being treated by
either corrections officers or CCS staff until after her death. There is absolutely no
evidence that Sheriff Wickersham encouraged, approved, authorized, or knowingly
acquiesced in any of the conduct about which Plaintiff complains. Here, as in Phillips,
[t]he Estate's general allegations that the correctional officers and [CCS
staff] were not properly trained are more appropriately submitted as
evidence to support a failure-to-train theory against the municipality
itself, and not the supervisors in their individual capacities. See City of
57
Canton v. Harris, 489 U.S. 378, 385 (1989) (recognizing that a systematic
failure to train officers adequately as a custom or policy may lead to city
liability). While an individual supervisor may still be held liable in his or
her individual capacity under a failure-to-train theory, the Estate must
point to a specific action of each individual supervisor to defeat a
qualified immunity claim.
Phillips, 534 F.3d at 533-34.
“[T]o be liable in a supervisory capacity under § 1983, courts have held that the
supervisor must have some contemporaneous knowledge of his subordinates'
unconstitutional conduct that resulted in a direct injury to the plaintiff.” Smith v.
Campbell County, 2019 WL 1338895, at *20. In Smith, the court granted summary
judgment to the supervising jailer in his individual capacity on a supervisory liability
claim where the jailer had “no personal interaction with Smith while he was detained,”
and had no knowledge that Smith was complaining of back pain and problems
breathing that were not being properly addressed by his staff. Id. at *20-21. Here, it
is undisputed that Sheriff Wickersham had no actual knowledge of Ms. Meyers’s or
her condition or her treatment by jail or medical staff until after her death. Plaintiff has
pointed to no “specific action” on the part of Sheriff Wickersham that suggests his
direct involvement in or encouragement of, or knowing acquiescence in, the alleged
unconstitutional conduct about which Plaintiff complains. Smith, 2019 WL 1338895,
at *21. The general allegations regarding the Sheriff’s failure to properly train his
corrections staff or his failure to investigate or discipline officers after Ms. Meyers’s
58
death, are more appropriately directed to Plaintiff’s municipal liability claim against
the County, which is discussed at length infra at Section IIIB. Plaintiff has not created
a genuine issue of material fact sufficient to defeat Sheriff Wickersham’s qualified
immunity in his individual capacity on a supervisory liability claim.
2.
Individual capacity claims against the CCS nursing staff Defendants.7
The touchstone of the second prong of the constitutional analysis is subjective
awareness – that the medical provider actually perceived a risk of harm and
consciously chose to ignore that risk:
[A] complaint that a physician has been negligent in diagnosing or
treating a medical condition does not state a valid claim of medical
mistreatment under the Eighth Amendment. Medical malpractice does not
become a constitutional violation merely because the victim is a prisoner.
In order to state a cognizable claim, a prisoner must allege acts or
omissions sufficiently harmful to evidence deliberate indifference to
serious medical needs. It is only such indifference that can offend
“evolving standards of decency” in violation of the Eighth Amendment.
Estelle, 429 U.S. at 106. And, while this subjective component may be established “in
the usual ways, including inference from circumstantial evidence,” Farmer, 511 U.S.
at 842, the jury cannot be left to speculate regarding the possibility that a defendant
possessed such knowledge. “When instructing juries in deliberate indifference cases
7
Plaintiff alleged in the Complaint individual liability claims against several CCS staff,
but proceeds as to only two – Nurses Jones and Black. Plaintiff agreed to dismiss with
prejudice Defendants Dr. Lawrence Sherman, Kelly Hedtke, and Chantalle Brock.
(Pl.’s Resp. 24, PgID 2722.)
59
with such issues of proof, courts should be careful to ensure that the requirement of
subjective culpability is not lost. It is not enough merely to find that a reasonable
person would have known, or that the defendant should have known, and juries should
be instructed accordingly.” Id. at 842 n. 8.
“[T]he mere existence of delay in receiving treatment is not enough for a jury
to find deliberate indifference.” Santiago v. Ringle, 734 F.3d 585, 593 (6th Cir. 2013)
(discussing the subjective component of the deliberate indifference analysis and citing
Reilly v. Vadlamudi, 680 F.3d 617, 625–27 (6th Cir. 2012)). “On summary judgment,
[Plaintiff] may not simply point to a delay and argue that a jury might not believe the
doctor’s explanation; he must put forth some additional evidence of deliberate
indifference, since ultimately he has the burden of proof at trial.” Id. (citing Celotex,
477 U.S. at 322–24).
1.
Nurse (Noland) Jones
There is insufficient evidence in this record that Nurse Jones subjectively
perceived that Ms. Meyers was facing a substantial risk of immediate serious medical
harm and consciously chose to do nothing about that risk. There is no evidence in this
record that Nurse Jones observed Ms. Meyers sweating profusely or emitting a foul
odor. Nor is there evidence that Nurse Jones was aware that Ms. Meyers had not been
leaving her cell and was being served meals in her cell. There is no evidence that the
60
observations of Ms. Meyers’s fellow inmates ever made it up the chain to Nurse Jones
or Nurse Black. In fact, both CCS staff who personally examined Ms. Meyers
described her demeanor as normal, both on July 2, 2013, when Ms. Meyers was seen
by Nurse Jones and on the next day, July 3, 2013, when Ms. Meyers was seen by
mental health worker Chantalle Brock.8 The testimony of Plaintiff’s expert, Dr.
Vassallo, may support a negligence claim against Nurse Jones, but it does not support
a deliberate indifference claim. Dr. Vassallo opines that Nurse Jones “should have
known” that Ms. Meyers’s previous heroin use, combined with her back pain and
recent MRI, indicated a serious systemic infection of some type and not just a nonspecific back pain that could be treated with Tylenol. It is undisputed that Ms.
Meyers’s vital signs on July 2, 2013, were within normal limits for an adult – and
nothing in the record supports an inference that Nurse Jones suspected that Ms. Meyers
had any underlying conditions that would suggest that her within-normal-range vital
signs were in fact abnormal. There is no evidence that when she presented for her
medical visit with Nurse Jones, Ms. Meyers was sweating profusely or smelling badly,
or had an elevated temperature, or was exhibiting any signs to Nurse Jones that would
8
Plaintiff attempts to impute this knowledge to the CCS staff through the “expert”
testimony of Dr. L.J. Dragovic. As noted supra, for the reasons stated in a separate
Opinion and Order issued this day, Dr. Dragovich’s testimony fails to pass the
threshold of admissibility under Daubert.
61
have caused her to draw the inference that Ms. Meyers was actually suffering from
some underlying condition that was being masked by her normal vital signs and normal
appearance on exam. Nurse Jones interpreted Ms. Meyers’s symptoms according to
the nursing protocol she was instructed to follow, and followed that pathway to
conclusion, which suggested the intervention of Tylenol if Ms. Meyers’s pain was
severe. Nurse Jones prescribed the Tylenol for Ms. Meyers “as needed” and completed
the pathway protocol, as confirmed by Nurse Black’s review and signature on Nurse
Jones’s Note. “‘[C]ourts are generally reluctant to second the medical judgment of
prison officials.’” Rouster, 749 F.3d at 448 (quoting Jones v. Muskegon Cnty., 625
F.3d 935, 944 (6th Cir. 2010)). Nurse Jones assessed Ms. Meyers’s symptoms and
followed the pathway that she believed was indicated by her objective findings. In Dr.
Vassallo’s opinion Nurse Jones followed the wrong pathway and should have escalated
Ms. Meyers’s care to a physician’s assistant or a doctor. This opinion is not sufficient
to create a question of fact on the issue of Nurse Jones’s deliberate indifference. Dr.
Vassallo began her opinion discussing a host of information that Nurse Jones did not
have. Dr. Vassallo opines that had Nurse Jones known of the results of Ms. Meyers’s
MRI, a “critical piece of information,” Nurse Jones might have been able to conclude
or at least suspect that Ms. Meyers was in fact suffering from a serious medical
condition despite her normal vital signs at the time. As the Sixth Circuit reasoned in
62
Rouster on similar facts:
Had Conley been subjectively aware of the seriousness of Jerry's medical
condition, her decision to treat him only with over-the-counter medication
might have been so cursory as to amount to a conscious disregard of his
needs. However, Rouster has not shown that Conley was in fact aware
that Jerry had a serious medical need. Indeed, Conley did not have one
very critical piece of information, which might have allowed us to draw
such a conclusion: she did not know that Jerry had been treated the
previous year for a perforated duodenal ulcer. Cf. Westlake, 537 F.2d at
859 (concluding that a prisoner stated a claim of deliberate indifference
because prison officials provided no treatment even after the prisoner
informed them that he suffered from an ulcer and needed medication and
a special diet). It is true that the medical experts retained in this case
testified that Conley should have called a physician whenever any inmate
complained of “significant abdominal pain.” R. 99–6 (Gouge Dep. at 40)
(Page ID # 1881). However, Conley's failure to follow best medical
practices is not necessarily evidence of deliberate indifference if she did
not know that Jerry's stomach pain was caused by a serious ailment.
Furthermore, even if Conley should have known that Jerry's abdominal
“guarding” was indicative of a serious medical condition, she was not
deliberately indifferent because she inferred that he was clenching his
muscles on purpose as he attempted to sit up and get off the table. Indeed,
Conley did not have the training to understand the significance of the
symptoms she observed during her abdominal assessment. R. 95–5
(Tennessen Dep. at 167–68) (Page ID # 1096). Therefore, Conley did not
display deliberate indifference to a known serious medical need during
her first interaction with Jerry, at the time he complained of stomach pain.
Rouster, 749 F.3d at 448-49.
Importantly, the Sixth Circuit has instructed that the deliberate indifference
analysis must be specific to each individual defendant and must take into account “the
expected level of knowledge of the particular official.” Sours , 593 F. App’x at 484
(citing Farmer, 511 U.S. at 842–43 and LeMarbe, 266 F.3d at 436–39). Smith v.
63
Campbell County, supra, is a recent and thorough opinion analyzing claims of
deliberate indifference involving similar facts, and is instructive here. Smith, a known
IV heroin drug abuser, was incarcerated at the Campbell County Detention Center
(“CCDC”) and was suffering from an undiagnosed epidural abscess and osteomyelitis
of the spine, which ultimately resulted in “sepsis and acute paraplegia of the lower part
of his body.” 2019 WL 1338895, at *1. On his admission to the CCDC, Smith advised
prison staff of several health issues, including heroin withdrawal, depression, anxiety,
leg pain, and a history of pain and bone fractures in his back. Id. Smith submitted
several kites complaining of, among other things, severe back pain “that was a 10 on
the pain scale.” Id. at *2. Smith filed his fourth Sick Call Slip stating that he needed
to see a doctor “ASAP” regarding his back pain and was seen by Nurse Clarkson, who
noted “prior back injury” and normal vitals and did not refer him to a physician or
order treatment in addition to the Tylenol he had already been prescribed. Id. Two
days later, Smith filed his fifth Sick Call Slip complaining of back pain, numbness, and
tingling and was seen by Nurse Doremus, who followed a clinical pathway form that
did not mention the numbness or tingling. Nurse Doremus prescribed Naproxen for
Smith’s pain. Id. Two days later, Smith saw a physician for the first time, Dr. Kalfas,
who examined Smith, observed Smith’s heroin use and chronic back pain, which Dr.
Kalfas attributed to degenerative disc disease, and prescribed an anti-inflammatory and
64
a muscle relaxant. Id. Smith continued to complain, noting that he had been
experiencing this pain for 25 days and again was scheduled to see Dr. Kalfas, who
diagnosed Smith with malingering and exaggerating his pain. Id. at *3. Ultimately
Smith was transported to the hospital for a mental status evaluation because of
“psychosomatic complaints of lower extremity paralysis.” Id. at *5. It was determined
at the hospital that Smith had a spinal abscess and osteomyelitis of the spine. He
underwent an emergency laminectomy and was unable to ambulate upon discharge
from the hospital. Id.
The district court ultimately determined that a reasonable jury could conclude
that Dr. Kalfas, who “specialize[d] in ‘addiction medicine,’ . . . [and] was well-aware
of the general risk of bone infection for a patient fitting Smith's profile,” had “refused
to verify underlying facts that he strongly suspected to be true, or declined to confirm
inferences of risk that he strongly suspected to exist.” Id. at *12-13 (quoting
Comstock, 273 F.3d at 703)). The district court found that there was “direct and
circumstantial evidence that Dr. Kalfas inferred a risk of injury from a more serious
condition which he did not adequately investigate or treat.” Id. at *14.
Importantly, however, the court reached a different conclusion with respect to
the conduct of Nurse Clarkson and Nurse Doremus, both of whom had examined Smith
and been made aware of his symptoms but neither of whom escalated his care or
65
ordered further testing or treatment. The district court reasoned:
Based on the evidence in the record, no reasonable jury could find that
Nurse Clarkson was deliberately indifferent to Smith's serious medical
needs. First, unlike Dr. Kalfas, there is no evidence that Nurse Clarkson
was educated on the heightened risk of infection for IV heroin users or
had any experience treating spinal infections. . . . Based on Smith's
reported health history and symptoms, it was reasonable for Nurse
Clarkson to believe he was suffering from chronic back pain from a prior
accident or that he had pulled a muscle when he sneezed two weeks
earlier.
2019 WL 1338895, at *15. The district court observed the same with regard to Nurse
Doremus: “Unlike Dr. Kalfas, Nurse Doremus was not familiar with the heightened
risk of infection from IV heroin use. Nor is there evidence that she had experience
treating osteomyelitis.” Id. at *17. Both nurses were granted summary judgment.
The same is true here. There is absolutely no evidence in this record to suggest
that Nurse Jones had any experience treating spinal infections in IV drug users or had
any awareness of the connection between IV drug use and bony infections of the spine.
And while Dr. Vassallo opines that Nurse Jones should have drilled down on the MRI
and made herself aware of those results, there is simply no evidence that she did or that
she consciously chose not to do so knowing that Ms. Meyers was suffering from a
serious medical condition. While Nurse Jones did not have a specific recollection of
her examination of Ms. Meyers, Nurse Jones testified that she would have inquired
about where Ms. Meyers had her MRI and would have asked about the results. Nurse
66
Jones testified: “With my nursing, I always ask the patient where they would have
received their MRI or any type of outpatient labs, testing, anything like that. At that
time she did not disclose it to me since it is not noted on the record.” (ECF No. 77-4,
Jones Dep. 57, PgID 1805.) The fact that her notes do not indicate any further
information regarding the MRI means that Ms. Meyers did not disclose any further
information to Nurse Jones and there is no evidence in this record to suggest otherwise.
See North, 754 F. App’x at 388 (crediting nurse’s testimony of what her notes revealed
even though the nurse had no memory of the incident). Dr. Vassallo is also critical of
Nurse Jones’s failure to record Ms. Meyers’s temperature during the July 2, 2013 visit,
but Nurse Jones explained that the absence of a notation meant that the temperature
was normal – otherwise she would have been directed down an entirely different
pathway: “With my nursing, I always take a complete full set of vital signs. . . . If the
temperature would have been even a low grade fever or a fever, it would have been
noted in the remarks section and another nursing protocol would have been initiated.”
(Jones Dep. 57-58, PgID 1805.) In the end Dr. Vassallo does not place the blame on
Nurse Jones, and states that “through no fault of her own” Nurse Jones was
insufficiently trained to recognize Ms. Meyers’s condition and was directed down the
wrong the pathway. (Id. at 104-06, PgID 1920-21.) There is no evidence to support
a finding that Nurse Jones did draw the inference that Ms. Meyers was facing a
67
substantial risk of harm and then disregarded that risk by prescribing Tylenol and
instructing Ms. Meyers to kite further if she continued to have problems. The records
reflect that Ms. Meyers did not kite again.9
Here Nurse Jones conducted a full exam, noted normal vitals, followed the
appropriate pathway protocol based on her objective findings, and reached a diagnosis
that was consistent with Plaintiff’s symptoms. Plaintiff did not kite medical again.
There is no evidence that Ms. Meyers’s medical needs were not addressed by CCS staff
– the most that can be said is that they were perhaps not properly diagnosed and
treated. But that evidence points at most to negligence, not to deliberate indifference.
See Kosloski v. Dunlap, 347 F. App’x 177, 180 (6th Cir. 2009) (nurse who failed to test
for or treat inmate’s undiagnosed endocarditis, even though she was informed by the
inmate of the possibility that his symptoms might be related to that condition, was at
most negligent where there was no evidence to support the conclusion that the nurse
“appreciate[d] that a substantial risk of serious harm existed”).
9
Plaintiff argues that the very fact of the four-day delay between June 28, 2013, when
Ms. Meyers’s kite was received to July 2, 2013, when she was seen by Nurse Jones,
is sufficient evidence on which to draw an inference of deliberate indifference. But it
is well established that “the mere existence of delay in receiving treatment is not
enough for a jury to find deliberate indifference.” Santiago, 734 F.3d at 593. Here,
there is no evidence that any CCS staff was aware of any deterioration in Ms. Meyers’s
condition specifically between July 2, 2013 and July 7, 2013, and Plaintiff makes no
effort at developing the argument that this four-day delay establishes deliberate
indifference.
68
As Plaintiff’s own expert observed, Nurse Jones, “through no fault of her own,”
did not appreciate the seriousness of Ms. Meyers’s reports of back pain and no
reasonable juror could conclude that Nurse Jones inferred a risk of substantial harm to
Ms. Meyers and deliberately chose to ignore that risk. Plaintiff has failed to create a
genuine issue of material fact that Nurse Jones was deliberately indifferent to Ms.
Meyers’s serious medical need. Nurse Jones is entitled to summary judgment.
2.
Nurse (Creagh) Black
The same analysis applies with respect to Nurse Black. There is simply no
evidence that she drew an inference that Ms. Meyers was at risk for substantial harm
and consciously chose to ignore that risk. Nurse Black reviewed Nurse Jones’s July
2, 2013 Note and found that Nurse Jones had complied with and followed the
appropriate pathway and protocol. And again, Plaintiff lists a number of factors that
Plaintiff believes supports a finding of deliberate indifference on the part of Nurse
Black, followed by the following statement: “Each of these individual and cumulative
failures by Director RN Creagh (“Black”) and LPN Noland support a finding of CCS
deliberate indifference. Defendant CCS failed to insure that its Director of Nursing
was trained even in the most basic and rudimentary aspects of registered nurse duties
– identifying abnormal vital signs and acting upon that information to provide ‘urgent’
medical care.” (ECF No. 90, Pl.’s Resp. 19-20, PgID 2717-18.) This is a statement
69
attributing fault to CCS – not to the individual nurses. And Plaintiff continues (under
the heading of “deliberate indifference of Nurse Black”) and states: “CCS failed to
train its Director of Nursing in practices and procedures that would promote medical
for a ‘urgent’ and serious medical condition.” (Id. at 20, PgID 2718.) This is an
allegation of a policy claim against CCS – not an individual deliberate indifference
claim against Nurse Black.
Plaintiff has failed to create a genuine issue of material fact that Nurse Black
was deliberately indifferent to Ms. Meyers’s serious underlying medical condition and
Nurse Black is entitled to summary judgment.
B.
Plaintiff’s Monell Claim Against Macomb County (and Against
Sheriff Wickersham in his Official Capacity)10
Plaintiff’s theory of liability against the County appears to be that the conduct
of DeHate and Hill is the result of the County’s failure to train and the Sheriff’s failure
to establish policies as the policymaker for the jail and his post-hoc ratification of the
officers’ misconduct evidence by his failure to conduct a more robust investigation into
Ms. Meyers’s death. The heart of the claim is that Sheriff Wickersham knew that his
corrections officers lacked medical training to identify a serious medical need such as
10
A claim against the Sheriff in his official capacity is treated as a claim against the
County and the two are analyzed as one. Miller v. Calhoun, 408 F.3d 803, 817 n. 3
(6th Cir. 2005)
70
acute sepsis and yet he knowingly tolerated that lack of training with the result that
constitutional violations such as those allegedly committed by DeHate and Hill,
resulting in Ms. Meyers’s suffering and death, were a highly predictable consequence
of that inadequate training. (Pl.’s County Resp. 10, PgID 3098.)
1.
Plaintiff’s Monell claim is not necessarily foreclosed by the Court’s
finding that no individual Defendant is liable under § 1983.
As a threshold matter, the County argues that because there has been no finding
of a constitutional violation committed by a County employee, there can be no
municipal liability on the part of the County. Defendants cite Watkins v. City of Battle
Creek, 273 F.3d 682 (6th Cir. 2001) for the proposition that in the absence of a
constitutional violation by an individual defendant, the municipality cannot be liable
under § 1983. (ECF No. 96, Defs.’ Reply PgID 3388.) But in Winkler, supra, the Sixth
Circuit expressly rejected this narrow reading of Watkins, and opened the door to a
theory of municipality liability in which no individual is found liable for an underlying
constitutional violation:
Winkler next focuses on the County's alleged liability. The district court
found that the County could not be held liable under § 1983 because
“there is no underlying unconstitutional conduct by any of the individual
defendants in this case.” But Winkler contends that if the County's policy,
custom, or failure to train directly caused a violation of Hacker's
constitutional right to adequate medical care, then the County may still be
held liable even if no individual defendant is found to have committed a
constitutional violation.
71
This court in Watkins v. City of Battle Creek, 273 F.3d 682, 687 (6th Cir.
2001), stated that “[i]f no constitutional violation by the individual
defendants is established, the municipal defendants cannot be held liable
under § 1983.” Having already upheld summary judgment in favor of all
of the individual defendants with regard to a constitutional claim of
deliberate indifference to serious medical needs, the court then upheld
summary judgment in favor of the municipal defendants with regard to
a claim that they had failed to properly train the individual defendants. Id.
Despite the fact that Watkins broadly states that the imposition of
municipal liability is contingent on a finding of individual liability under
§ 1983, other cases from this circuit have indicated that the principle
might have a narrower application. Judge Cole, in a concurring opinion
in Epps v. Lauderdale County, 45 F. App'x 332 (6th Cir. 2002),
explained:
When no constitutional harm has been inflicted upon a
victim, damages may not be awarded against a municipality.
But a finding that the individual government actor has not
committed a constitutional violation does not require a
finding that no constitutional harm has been inflicted upon
the victim, nor that the municipality is not responsible for
that constitutional harm. ... A given constitutional violation
may be attributable to a municipality's acts alone and not to
those of its employees—as when a government actor in
good faith follows a faulty municipal policy. A municipality
also may be liable even when the individual government
actor is exonerated, including where municipal liability is
based on the actions of individual government actors other
than those who are named as parties. Moreover, it is possible
that no one individual government actor may violate a
victim's constitutional rights, but that the combined acts or
omissions of several employees acting under a governmental
policy or custom may violate an individual's constitutional
rights.
Id. at 334–35 (internal citations and quotation marks omitted). See also
Garner v. Memphis Police Dep't, 8 F.3d 358, 365 (6th Cir. 1993)
72
(recognizing that “a municipality may not escape liability for a § 1983
violation merely because the officer who committed the violation is
entitled to qualified immunity”).
There is no indication that Watkins considered any of the situations
discussed in Epps or Garner when it stated that municipal liability is
contingent on a finding of individual liability. And the only case relied on
by Watkins for that proposition, City of Los Angeles v. Heller, 475 U.S.
796, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986) (per curiam), is not nearly so
sweeping regarding the scope of Monell liability. See id. at 799, 106 S.Ct.
1571 (“[N]either Monell ... nor any other of our cases authorizes the
award of damages against a municipal corporation based on the actions
of one of its officers when in fact the jury has concluded that the officer
inflicted no constitutional harm. If a person has suffered no constitutional
injury at the hands of the individual police officer, the fact that the
departmental regulations might have authorized the use of constitutionally
excessive force is quite beside the point.” (emphasis in original)).
In fact, several other circuits have considered Heller and concluded that
a municipality may be held liable under § 1983 in certain cases where no
individual liability is shown. See e.g., Fairley v. Luman, 281 F.3d 913,
917 (9th Cir. 2002) (“If a plaintiff establishes he suffered a constitutional
injury by the City, the fact that individual officers are exonerated is
immaterial to [municipal] liability under § 1983.” (emphasis in original));
Speer v. City of Wynne, 276 F.3d 980, 986 (8th Cir. 2002) (“The
appropriate question under Heller is whether a verdict or decision
exonerating the individual governmental actors can be harmonized with
a concomitant verdict or decision imposing liability on the municipal
entity. The outcome of the inquiry depends on the nature of the
constitutional violation alleged, the theory of municipal liability asserted
by the plaintiff, and the defenses set forth by the individual actors.”);
Fagan v. City of Vineland, 22 F.3d 1283, 1292, 1294 (3d Cir. 1994)
(noting that “[i]f we conditioned municipal liability on an individual
police officer's liability in every case, it might lead to illogical results,”
and holding that “a municipality can be liable under section 1983 and the
Fourteenth Amendment for a failure to train its police officers with
respect to high-speed automobile chases, even if no individual officer
participating in the chase violated the Constitution”).
73
Winkler, 893 F.3d at 899-901.
In North, supra, the Sixth Circuit gave further affirmation to Winkler’s
recognition that a municipality can be liable notwithstanding the absence of a
constitutional violation by any individual officer:
There must be a constitutional violation for a § 1983 claim against a
municipality to succeed—if the plaintiff has suffered no constitutional
injury, his Monell claim fails. See City of Los Angeles v. Heller, 475 U.S.
796, 799, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986) (per curiam). A court’s
finding that an individual defendant is not liable because of qualified
immunity, however, does not necessarily foreclose municipal liability.
See Garner, 8 F.3d at 365; see also Richko v. Wayne County, 819 F.3d
907, 920 (6th Cir. 2016) (rejecting the argument that a county cannot be
held liable because the individual defendants are not liable as “unsound”).
Whether and under what circumstances a municipality can be liable when
the plaintiff suffered a constitutional violation but cannot attribute it to
any individual defendant’s unconstitutional conduct is a more
complicated question—one that this court recently noted in Winkler, 893
F.3d at 899–900.
754 F. App’x at 389. The court in North then quotes at length from Winkler,
concluding:
In many cases, a finding that no individual defendant violated the
plaintiff’s constitutional rights will also mean that the plaintiff has
suffered no constitutional violation. In a subset of § 1983 cases, however,
the fact that no individual defendant committed a constitutional
violation—e.g., acted with deliberate indifference to an inmate’s serious
medical need—might not necessarily “require a finding that no
constitutional harm has been inflicted upon the victim, nor that the
municipality is not responsible for that constitutional harm.” Epps, 45 F.
App'x at 334 (Cole, J., concurring).
The type of claim North advances—one premised on failure to act rather
74
than affirmative wrongdoing—might fit within this analysis. Assuming
that our caselaw allows for such an approach, we consider his affirmative
policy or custom and failure-to-train claims in turn.
754 F. App’x at 390. This Court will follow the Sixth Circuit’s lead given that court’s
apparent willingness to entertain such a claim and will assume that Sixth Circuit
“caselaw allows for such an approach.” Thus, although the Court has concluded that
Sheriff Wickersham (the only individual Defendant County Defendant named in this
action) is not liable in his individual capacity, under this approach the Sheriff’s conduct
might still be evidence in support of a “failure to act” policy claim. Plaintiff also relies
on the conduct of non-parties DeHate and Hill as evidence in support of such a policy
claim against the County. “A municipality also may be liable even when the individual
government actor is exonerated, including where municipal liability is based on the
actions of individual government actors other than those who are named as parties.”
Winkler, 893 F.3d at 900 (quoting Epps, 45 F. App’x at 335.)11
11
The Court will discuss the evidence related to Officers DeHate and Hill as relevant
to the analysis of Plaintiff’s claim against the County but makes no findings with
regard to the deliberate indifference of either Officer DeHate or Hill. The Court notes,
however, that Plaintiff’s expert, Margo Frasier, expressly states in her opinions that
Officers DeHate and Hill were unaware of the seriousness of Ms. Meyers’s medical
needs, casting great doubt on the Plaintiff’s ability to establish the subjective
awareness of these two officers:
A: (by Ms. Frasier) The evidence indicates that [Ms. Meyers] was
suffering from a serious obviously not only life-threatening – it took her
life – medical condition, that there were signs that she had some sort of
75
2.
Plaintiff has failed to demonstrate a viable Monell claim against the
County.
In a recent published opinion, Jackson v. City of Cleveland, __F.3d__, 2019 WL
1397484 (6th Cir. March 28, 2019) the Sixth Circuit outlined with great clarity what
a plaintiff must prove in seeking to establish municipal liability. The relevant portions
of that opinion bear repeating here at length:
dire medical condition that was not attended to, and . . . it was not
reported . . . and she was allowed to just kind of linger until the time she
passed.
Q: Okay. And who would that be attributable to?
A: [W]e’ve already identified Deputy Franks, DeHate and Hill, and it’s
attributable I think – in my opinion it’s due to lack of training and – and
supervision, that these staff members either didn’t know what to look at,
for, or once they saw it didn’t know what to do with it and didn’t report
it.
(ECF No. 96-2, June 25, 2018 Deposition of Margo L. Frasier 45, PgID 3438.)
Having affirmatively taken the position that the jail staff most likely responsible
for the failure to address Ms. Meyers’s urgent medical needs were “ignorant” of the
import of Ms. Meyers’s medical condition and “lack[ed] awareness of Ms. Meyers’
symptoms of physical illness,” and “fail[ed] to recognize and respond to [her] medical
needs and to pass on medical concerns to jail nursing staff,” see ECF No. 93, Pl.’s
Resp. 22-23, PgID 3110-11, Plaintiff would be challenged in meeting the standard of
proof required to establish deliberate indifference on the part of the individual jail staff,
i.e. that they were subjectively aware of the gravity of Ms. Meyers’s medical condition,
that they drew the inference that she was in need of immediate medical attention, and
despite that awareness they deliberately chose to ignore those needs and to allow Ms.
Meyers to suffer and ultimately to die.
76
The cause of action created by § 1983 may be exercised only against a
“person who ... causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws.”
42 U.S.C. § 1983. The Supreme Court has interpreted the word “person”
broadly, and certain polities, including municipalities, are considered
persons for purposes of § 1983 liability. Monell v. Dep't of Soc. Servs.,
436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
Although “person” has been given a wide meaning under § 1983, when
the person is a municipality, liability attaches only under a narrow set of
circumstances: “A municipality may not be held liable under § 1983 on
a respondeat superior theory—in other words, ‘solely because it employs
a tortfeasor.’” D'Ambrosio v. Marino, 747 F.3d 378, 388–89 (6th Cir.
2014) (quoting Monell, 436 U.S. at 691, 98 S.Ct. 2018). Instead, a
plaintiff must show that “through its deliberate conduct, the municipality
was the ‘moving force’ behind the injury alleged.” Alman v. Reed, 703
F.3d 887, 903 (6th Cir. 2013) (quoting Bd. of Cty. Comm'rs v. Brown, 520
U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997)). A plaintiff does
this by showing that the municipality had a “policy or custom” that
caused the violation of his rights. Monell, 436 U.S. at 694, 98 S.Ct. 2018.
There are four methods of showing the municipality had such a policy or
custom: the plaintiff may prove “(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 v.
Fischer, 735 F.3d 462, 478 (6th Cir. 2013) (citation omitted).”
2019 WL 1397484, at * 22-23. Where, as here, the Plaintiff attempts to proceed on a
failure to train claim, the following must be shown:
In order to show that a municipality is liable for a failure to train its
employees, a plaintiff “must establish that: 1) the City's training program
was inadequate for the tasks that officers must perform; 2) the inadequacy
was the result of the City's deliberate indifference; and 3) the inadequacy
77
was closely related to or actually caused the injury.” Ciminillo v.
Streicher, 434 F.3d 461, 469 (6th Cir. 2006) (citing Russo v. City of
Cincinnati, 953 F.2d 1036, 1046 (6th Cir. 1992)).
Id. at *28. In order to demonstrate the second prong of a failure to train claim, i.e. that
the inadequacy was the result of the municipality’s deliberate indifference, the
following evidence is required:
A plaintiff may meet this standard by showing either (1) “prior instances
of unconstitutional conduct demonstrating that the City had notice that the
training was deficient and likely to cause injury but ignored it” or (2)
“evidence of a single violation of federal rights, accompanied by a
showing that the City had failed to train its employees to handle recurring
situations presenting an obvious potential for such a violation.” Campbell
v. City of Springboro, 700 F.3d 779, 794 (6th Cir. 2012) (citing Plinton
v. Cty. of Summit, 540 F.3d 459, 464 (6th Cir. 2008)).
Id. at *30.
Here, as in Winkler, the record is undisputed that Plaintiff has no evidence of
prior instances where inmates have received constitutionally inadequate medical care,
either from CCS or from jail staff, and Plaintiff’s expert expressly testified that Ms.
Meyers was “the first” in a pattern that allegedly subsequently developed and that
Plaintiff has no evidence of any such constitutional violations prior to the incident with
Ms. Meyers, significantly narrowing the available theories for establishing “stand
alone” liability here on the part of the County. Specifically, Plaintiff’s expert witness
concedes that prior to the incident involving Ms. Meyers, Plaintiff has submitted no
evidence of a single prior instance when a prisoner’s serious medical needs were
78
ignored by the jail staff:
Q: So your opinion as to the county’s policy, custom, or practice is based
on Meyers’ situation alone?
A: For this particular case. We all know that there was a couple of cases
afterwards, but Meyers was the first one of the trio.
Q: Do you know of any other similar cases prior to Meyers’ death.
A: I do not.
*
*
*
Q: But prior to Meyers’ death, do you know of any other instance, any
other prisoner whose serious medical needs were ignored by jail staff, the
uniformed jail staff?
A: Other than Ms. Meyers, no, sir.
(ECF No. 96-2, Frasier Dep. PgID 3456, 3461.)
Without evidence of a single prior instance in which an inmate’s medical
condition was ignored – not to mention the specific condition of acute sepsis – Plaintiff
here is in the same situation as the plaintiff in Winkler – having to establish that there
was a failure of training that was so fundamentally flawed as to result in the predictable
consequence of a constitutional violation. Here, as in Winkler, Plaintiff must establish
that the training that the correctional officers receive was so constitutionally inadequate
as to all but guarantee the resulting harm to Ms. Meyers – i.e. that she would suffer
from an undiagnosed acute abscess and die. But, as in Winkler, Plaintiff has proffered
79
insufficient evidence on which a reasonable juror could conclude that the training
corrections officers received was inadequate, let alone that an inadequacy resulted from
deliberate indifference.
As an initial observation, it was not incumbent on the County to prove that their
policies and procedures and training were adequate – it is Plaintiff’s burden to
demonstrate that they are inadequate. The Sixth Circuit explained this burden in
Harvey v. Campbell County Tenn., 453 F. App’x 557 (6th Cir. 2011):
First, plaintiffs must come forward with evidence tending to show that
Lowe's training was inadequate. Although defendants were not required
to support their motion for summary judgment with evidence negating
plaintiffs' claim, both individual defendants filed affidavits attesting to the
adequacy of Lowe's training.
*
*
*
Plaintiffs have offered no evidence disputing these sworn statements and
have not identified any particular deficiency in the training. . . . Plaintiffs'
position is thus based not on evidence in the record that shows their cup
is half-full, but on the failure of defendants to show conclusively that
their cup is full to the brim. Plaintiffs would have us draw inferences that
are not reasonably supported by the record evidence. As indicated above,
our duty to view the facts in the light most favorable to plaintiffs does not
require or permit us to accept as true mere allegations that are not
supported by factual evidence. Leary, 528 F.3d at 443–44. Plaintiffs, in
response to a properly supported motion for summary judgment, cannot
rely merely on allegations and arguments, but must set out specific facts
showing a genuine issue for trial. Id. at 444. Plaintiffs have not done so.
They have presented no facts. In fact, it appears they have not even
conducted discovery designed to uncover facts supporting their
allegations. They rely instead on speculative, unsupported allegations to
create metaphysical doubt, which clearly does not amount to a genuine
80
issue of material fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
The district court overlooked these shortcomings in plaintiffs' case,
concluding that defendants had not met their burden. The court held that
defendants had failed to conclusively show that Lowe's training was so
adequate to the tasks performed as to demonstrate the absence of any
genuine issue of material fact. In so ruling, the court did not identify a
single item of evidence supporting plaintiffs' allegation that the training
was inadequate. The district court thus improperly excused plaintiffs from
their burden of coming forward with specific facts demonstrating a triable
fact issue.
453 F. App’x at 565-66. The Sixth Circuit concluded:
[I]t was manifestly not the defendants' duty to show that Deputy Lowe's
training was adequate; it was plaintiffs' burden to show that such training
was inadequate. Plaintiffs were obligated to come forward with
affirmative evidence above and beyond the pleadings to show that the
training Lowe received was not sufficient. But when defendants
challenged plaintiffs to present their evidence of deficient training,
plaintiffs' only response has been to argue essentially that defendants'
affidavits are insufficient to rebut plaintiffs' unsupported allegations. This
is not enough. For lack of evidence of inadequate training alone,
defendants are entitled to summary judgment.
Id. at 566-67 (emphasis in original).
Here, although not required to do so, the County supported its motion with
significant evidence that its corrections officer training program is robust and
constitutionally sound. As Ms. Misch testified in her Affidavit, the Macomb County
Corrections Officers receive extensive training in the first year of their employment
and must attend at least 20 hours of additional training annually. Several of the
81
mandatory training modules pertain directly to safety and security of inmates: modules
on Custody and Security, Prisoner Behavior, Suicide Awareness, Interpersonal
Communication, and First Aid/CPR/AED are directed to training in the safety and
well-being of inmates. The County also has provided Affidavit testimony of Ms.
Sanborn, Ms. Darga, Ms. Misch, and Sheriff Wickersham, attesting to the fact that the
Jail’s policies and procedures met all MDOC and NCCHC standards. This testimony
is unrebutted.
In response to this evidence, Plaintiff submits no evidence of past instances of
failures to train and presents no evidence of higher or different training standards
practiced elsewhere that should have been implemented by the County. Indeed many
cases in this Circuit affirm that the training provided by the County, including CPR and
First Aid training, is sufficient training for corrections officers to determine whether
and when to escalate an inmate’s complaint to healthcare. In Miller v. Calhoun
County, 408 F.3d 803 (6th Cir. 2005), the corrections officers received what appears
to have been the same 160 hours of training that DeHate and Hill received, including
training in First Aid and CPR, and the Sixth Circuit concluded that the plaintiff’s
failure to submit any evidence tending to show this training was inadequate was fatal
to her failure to train policy claim:
Miller offers no evidence supporting her allegation that the County's
failure to train amounted to deliberate indifference to the medical needs
82
of detainees at the Correctional Facility. Her argument pivots on
Lindsay's admitted lack of emergency medical training, an argument that
the District Court rejected. Lindsay testified at deposition that she had
received 160 hours of training from the Department of Corrections that
included instruction on handling certain medical situations, and that she
was trained in first aid and CPR. Lindsay further testified that the
Correctional Facility adhered to a medical policy whereby inmates were
“initially checked by staff to find out what the problem is according to the
inmate, and then that information is then relayed to the medical staff who
handles the inmate's care from that point.” To counter this evidence,
Miller merely argues that a reasonable jury could find deliberate
indifference on the part of the County. She offers no evidence beyond the
facts of this case tending to show that the County's training and staffing
policies were inadequate. There is no history of similar incidents at the
Correctional Facility, nothing to show that the County was on notice, and
nothing to show that the County's failure to take meliorative action was
deliberate.
408 F.3d at 816. Nor can Plaintiff claim that the County’s policy of contracting with
CCS to provide medical care offends the Eighth Amendment. As the Sixth Circuit held
in Winkler, “a municipality may constitutionally contract with a private medical
company to provide healthcare services to inmates,” and may rely on the medical
judgments of those healthcare professionals. 893 F.3d at 901.
Here, in response to the County’s motion, Plaintiff offers the Expert Report of
Margo L. Frasier, J.D., C.P.O, who opines in part that there is evidence to suggest that
the corrections officers of the Macomb County Sheriff’s Office were inadequately
trained or supervised. (ECF No. 93-25, Feb. 14, 2018 Expert Report of Margo L.
Frasier p. 6, PgID 3301.) Importantly, of the 28 bullet points representing the specific
83
evidence on which Ms. Frasier relies in support of her opinions, every one of the 28
relates to facts that are specific to Ms. Meyers’s incarceration and to the treatment she
received (or did not receive) over a period of eleven days of incarceration. None of the
evidence on which Ms. Frasier relies speaks to other incidents or failures in training
and she cites no specific policies or procedures that the County should have had in
place but did not. She identifies certain policies and opines that they “lack specificity”
but she does not identify what specifically the policies lacked or more importantly how
they failed to meet the governing standards identified by the County. Ms. Frasier’s
opinion focuses solely on the circumstances of Ms. Meyers’s death which cannot be
the sole basis for Plaintiff’s municipal liability claim. This fatal flaw in Ms. Frasier’s
opinion is evident in her summary opinion of the “policy, custom, or practice” that she
identifies as offending constitutional norms:
At the time of the incident in question, Macomb County had a policy,
custom, or practice of ignoring the serious medical or mental health needs
and nutrition of its inmates. Particularly, the corrections officers and
supervisors, along with the medical [sic] watched Meryers’s physical and
mental condition deteriorate over a period of eleven days and did not take
any meaningful steps to provide her with adequate medical care. . . .
There was a pattern of conduct over the eleven days that Meyers was held
which have put a supervisor or policymaker on notice that additional
training or supervision was needed.
Frasier Report 6-7, PgID 3301-02.
84
Here, as in Miller, Plaintiff “bases [his] argument entirely on the circumstances
surrounding [Ms. Meyers’s] death, but a single act may establish municipal liability
only where . . . ‘the need for more or different training is so obvious, and the
inadequacy so likely to result in the violation of constitutional rights, that the
policymakers of the city can reasonably be said to have been deliberately indifferent
to the need.’” 408 F.3d at 816-17 (quoting Harris, 489 U.S. at 390). As in Winkler,
Plaintiff has failed to “identify what other medical training [it] believes that the jail
personnel should have received. Nor does [Hubble] explain how the quality of the
medical training provided put the County on notice of the likelihood that jail personnel
would respond inadequately to an inmate’s medical emergency.” Winkler, 893 F.3d
at 903. In fact here, Ms. Meyers was seen by healthcare, she was evaluated and treated
and encouraged to kite again. “[I]t does not ‘suffice to prove that an injury or accident
could have been avoided if an officer had had better or more training, sufficient to
equip him to avoid the particular injury-causing conduct.’” Id. (quoting Harris, 489
U.S. at 391.)
In order to fit a claim within this “extremely narrow exception” that applies in
the absence of a pattern of prior instances of unconstitutional conduct, a plaintiff must
demonstrate that the training provided was so egregiously deficient that the officer
“utterly lack[ed] an ability to cope with constitutional situations.” Shadrick v. Hopkins
85
County, Ky., 805 F.3d 724, 742 (6th Cir. 2015). Viewing the facts in the light most
favorable to the Plaintiff, the evidence in this record regarding the training provided
to the correctional officers at this jail, which mirrors the training found to be
constitutionally adequate in other Sixth Circuit cases, simply does not bring this case,
tragic as it may be, into “the narrow range of Canton's hypothesized single-incident
liability.” Shadrick, 805 F.3d at 742 (internal quotation marks and citation omitted).
The conclusory opinions of Ms. Frasier are not sufficient to create a genuine issue of
material fact, as the Sixth Circuit observed in Winkler:
The opinion of Winkler's medical expert that Healthcare's training
program was inadequate is not, by itself, sufficient to show deliberate
indifference because Winkler has neither provided evidence of past
examples of constitutionally inadequate treatment of inmates by
Healthcare's medical staff nor explained how the training program's
alleged weaknesses were so obvious as to put Healthcare on notice that
a constitutional violation was likely. See Ellis, 455 F.3d at 700–01
(explaining the two ways that a plaintiff can show that inadequate training
reflects deliberate indifference).
893 F.3d at 904. “Because [Hubble] has failed to demonstrate that the Correctional
Facility policies were objectively inadequate, much less that the County was
deliberately indifferent to the obvious inadequacy of those policies,” Plaintiff cannot
sustain a claim against the County for failure to train. Miller, 408 F.3d at 817.12
12
Plaintiff also adverts to, but does not adequately develop, a claim against Sheriff
Wickersham in his official capacity as a “policymaker,” or for failing to
investigate/ratification. (Pl.’s Resp. 20, 22-24, PgID 3108, 3111-12.) Plaintiff’s
86
C.
Plaintiff has failed to demonstrate a viable Monell claim against CCS.
“[P]rivate corporations performing traditional state functions, such as the
provision of medical services to prison inmates, act under color of state law for
purposes of § 1983.” Shadrick, 805 F.3d at 736 (citing Rouster v. City of Saginaw, 749
F.3d 437, 453 (6th cir. 2014)).13 “The ‘deliberate indifference’ standard of the Eighth
briefing on this claim (or cluster of claims) is very confusing and blurs the lines
between the various available theories of municipal liability. It is unclear whether
Plaintiff is attempting to assert a “policymaker” or “ratification” claim separate and
apart from the failure to train claim (which appears to be the heart of Plaintiff’s Monell
claim against the County) but if so, such a claim fails. A plaintiff asserting a “singleact policymaker” claim “must demonstrate that a “deliberate choice to follow a course
of action is made from among various alternatives by the official . . . responsible for
establishing final policy with respect to the subject matter in question.” Burgess v.
Fischer, 735 F.3d 462, 479 (6th Cir. 2013) (quoting Pembaur v. City of Cincinnati, 475
U.S. 469, 483 (1986)). “Moreover, that course of action must be shown to be the
moving force behind or cause of the plaintiff’s harm.” Id. Here, Plaintiff does not
submit evidence (or even develop a coherent argument) that Sheriff Wickersham made
a “choice” among alternatives that resulted in the harm to the Plaintiff. Nor can any
alleged “after-the-fact approval of the investigation, which did not itself cause or
continue a harm against [Meyers] [] sufficient to establish the Monell claim.” Id. It
is undisputed that there was an investigation into Ms. Meyers’s death and there was no
evidence presented of previous failures to investigate. Any claim based on a failure
to investigate would require evidence that the County had failed to investigate some
number of prior incidents. Leach v. Shelby County Sheriff, 891 F.2d 1241 (6th Cir.
1989) (finding municipal policy of deliberate indifference where sheriff was aware of
14 previous instances of mistreatment of paraplegics and had failed to investigate or
discipline).
13
The same discussion regarding the Winkler case, and the Sixth Circuit’s position on
whether there can be a claim against the municipal entity in the absence of a finding
of an underlying constitutional violation by an individual, is equally relevant here.
There is some question whether such a claim can survive. Even though the Sixth
87
Amendment governs [CCS’s] responsibility for training and supervising its [] nurses
concerning their legal duty to honor an inmate’s constitutional right to adequate
medical care. [CCS’s] failure to train and supervise its [] nurses adequately ‘about their
legal duty to avoid violating citizens’ rights may rise to the level of an official
government policy for purposes of § 1983,’ and constitute the moving force behind
[Meyers’s] harm.” Shadrick, 805 F.3d 737 (quoting Connick v. Thompson, 563 U.S.
51 (2011)). “[Plaintiff’s] burden under § 1983 is to prove that [CCS’s] failure to train
and supervise its [] nurses about the legal duty to provide constitutionally adequate
medical care amounted ‘to deliberate indifference to the rights of persons with whom
the [nurses] come into contact.’” Id. (quoting City of Canton v. Harris, 489 U.S. 378,
388 (1989) (final alteration in original)). “The law does not permit [Plaintiff] to hold
[CCS] liable under § 1983 on theories of vicarious liability or respondeat superior.”
Id.
Circuit has suggested that such a claim might survive, it has never actually so held.
And it has clearly suggested the opposite. For example in Rouster, after concluding
that none of the individual nursing staff had been deliberately indifferent, the Sixth
Circuit declined even to analyze Plaintiff’s failure to train claim, concluding: “As
discussed above, Rouster is unable to prove that Jerry’s constitutional rights were
violated. Therefore, we need not consider whether Secure Care’s staffing or training
policies might have caused such a violation.” 749 F.3d at 453-54. Assuming,
however, as we did with the County Defendants, that such a claim can survive in this
Circuit, we proceed to analyze the claim that Plaintiff asserts.
88
Plaintiff asserts that “CCS tolerated a policy of inadequate training, as evidenced
by the consistent and pervasive failed inaction of LPN Jones and Director of Nursing
RN Creagh (“Black”), and by unnamed and unidentified CCS staff.” (ECF No. 90,
Pl.’s Resp. 22, PgID 2720.) But as with its claim against the County Defendants,
Plaintiff supplies no evidence of prior instances (apart from Ms. Meyers) in which CCS
has provided inadequate medical care that resulted in the death of an inmate from
sepsis – indeed Plaintiff provides no evidence at all regarding prior of instances of an
inmate death resulting from inadequate training of the CCS nursing staff. Thus, as
with its claim against County Defendants, Plaintiff must fit its claim within that
“‘narrow range of circumstances’ where a federal rights violation may be a highly
predictable consequence of a failure to equip [employees] with specific tools to handle
recurring situations.’” Shadrick, 805 F.3d at 739 (quoting Bd. of Cnty. Comm’rs of
Bryan County, Oklahoma v. Brown, 520 U.S. 397, 409 (1997)). In Shadrick, the Sixth
Circuit found facts that did fit within that “narrow range of circumstances,” where the
evidence revealed that the health care provider “did not have a training program,” for
its LPN nurses:
There is no indication in the record before us that [the prison health care
provider] designed and implemented any type of ongoing training
program for its LPN nurses. While the nurses may have received some
limited on-the-job training when beginning their employment, such as
learning where supplies were kept, there is no proof of a training program
that was designed to guide LPN nurses in assessing and documenting
89
medical conditions of inmates, obtaining physician orders, providing
ordered treatments to inmates, monitoring patient progress, or providing
necessary emergency care to inmates within the jail environment in order
to avoid constitutional violations.
LPN nurses complete a level of medical training, they obtain a Kentucky
license, and they arrive on the job with a limited set of medical skills.
This § 1983 claim does not turn, as the dissent says, on whether the
nurses know how to make “rudimentary medical judgments” about
inmates' symptoms or whether they know when to call the doctor. Dissent
at 754. Shadrick's expert witness established that LPN nurses lack any
authority to diagnose medical conditions, yet the nurses are routinely
confronted with frequent and competing demands for medical care arising
from the needs of numerous inmates suffering from maladies of varying
severity. It is predictable that placing an LPN nurse lacking the specific
tools to handle the situations she will inevitably confront in the jail setting
will lead to violation of the constitutional rights of inmates. A reasonable
jury, therefore, could determine that SHP's failure to train and supervise
its LPN nurses in meeting their constitutional obligations demonstrates
SHP's own deliberate indifference to the highly predictable consequence
that an LPN nurse will commit a constitutional violation. See Bryan
Cnty., 520 U.S. at 409, 117 S.Ct. 1382. A jury could find that “the
unconstitutional consequences of failing to train” are “so patently
obvious” that SHP should be held “liable under § 1983 without proof of
a pre-existing pattern of violations.” Connick, 131 S.Ct. at 1361. Even the
dissent acknowledges that City of Canton applies if “the need is so patent
as to be self-evident.” Dissent at 755.
805 F.3d at 739-40. The Sixth Circuit found such patent obviousness because the
evidence demonstrated an “utter lack” of any training at all:
Because it is so highly predictable that a poorly trained LPN nurse
working in the jail setting “utter [ly] lack[s] an ability to cope with
constitutional situations,” id. at 1363, a jury reasonably could find that
SHP's failure to train reflects “deliberate indifference to the ‘highly
predictable consequence,’ namely, violations of constitutional rights,” id.
at 1361 (quoting Bryan Cnty., 520 U.S. at 409, 117 S.Ct. 1382). Unlike
90
Connick and D'Ambrosio, this case falls squarely within “the narrow
range of Canton's hypothesized single-incident liability.” Connick, 131
S.Ct. at 1361.
805 F.3d at 742.
Our facts differ greatly from Shadrick and dictate a different result. To begin
with, the evidence in Shadrick revealed that the nurses knew that the inmate (25-year
old Taylor Butler) had an active Methicillin-resistant Staphylococcus aureus
(“MRSA”) infection, and directly observed that he was vomiting, sweating profusely,
and had difficulty standing up. 805 F.3d at 729. He specifically informed the jail
intake staff that he had a MRSA infection, and was under a doctor’s care for high blood
pressure, rheumatoid arthritis, gout, and osteoporosis. He listed several medications
he was taking, and denied drug or alcohol addiction. Id. Jail staff did not want to
admit Butler due to his presentation and condition, and deferred to medical staff who
were the only ones under jail policy who could refuse admission of an inmate for
health reasons. Id. Jail staff called LPN Candace Moss to the booking area to examine
Butler to determine whether the jail could refuse to admit him. Butler told Moss that
he had frequent staph infections, that he was suffering from a staph infection in his
groin area that his doctor had not yet examined, and that he had been vomiting, which
he attributed to the staph infection. Id. A jail deputy watched Butler as he spoke with
Moss and noticed that his skin was clammy and gray in color, that he was bloated, that
91
he had open wounds on his legs, and he exposed the staph infection in his groin and
said “I have staph infection all over me . . . it’s in my groin . . . . I don’t need to be
here.” Id. at 740. Moss admitted Butler anyway, put him on 72-hour watch for
detoxification, and did not institute the jail’s written policy guidelines for the treatment
of staph and MRSA infections, which are known to progress rapidly and to require
constant monitoring and precautions to prevent the spread of the infection. Id. at 731.
Over the next two days, Butler asked for a sick-call slip which he was provided by a
deputy who tried to persuade the SHP nurse on duty to see Butler that day, which jail
records reflect never occurred. Butler was unable to get up off of the floor of the cell
to receive his medications, he defecated on himself and was cleaned up and returned
to his cell. Deputies walked to the medical office to inform the nursing staff of
Butler’s condition, and nursing staff said that they were aware of Butler’s condition
and seemed unconcerned. When Butler defecated on himself again, he was moved to
a segregation cell for observation, at which time nursing staff did not take any vital
signs, examine Butler, or provide him with any medication. On the third full day of
his incarceration, Butler was found unresponsive lying awkwardly in his cell by
nursing staff who did not begin CPR but rather paged the on-call doctor (who did not
respond) and called EMS. Butler was pronounced dead shortly thereafter. Id. at 73233.
92
Each of the LPNs who were involved in Butler’s care testified to an utter lack
of training on SHP’s policies and procedures. The LPNs testified that they did not
know whether they were required to take vital signs of an inmate with Butler’s
symptoms, that no one from SHP supervised or critiqued the LPNs work or reviewed
the LPN’s medical progress notes, and none of them appeared to understand the
necessity of enforcing the policies and procedures with regard to staph and MRSA
infections. They testified that if an inmate with a staph infection did not put in a sick
call request, they would go untreated and if they didn’t ask for help within a few days,
they would be put on suicide watch because if they don’t seek help for such conditions,
they must be suicidal. Id. at 734.
The facts of Shadrick continue in this way, detailing a lack of appreciation on
the part of the LPNs for inmate health and safety of a gross magnitude, very much
different from the facts of this case. In Shadrick, the Sixth Circuit found that the LPN
nurses working at the jail had a “blanket inability . . . to identify and discuss the
requirements” of the written policies governing their work. 805 F.3d at 740. “The
nurses professed ignorance of the written medical treatment protocols and policies
purportedly drafted by SHP to guide their conduct.” Id. No such facts have been
established in this case – in fact just the opposite. Nurse Jones was able to discuss in
detail the medical pathway that she followed in assessing Ms. Meyers and she was able
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to explain how she arrived at the intervention of “alteration in comfort – nonspecific.”
Nurse Jones may have been wrong in failing to appreciate the significance of Ms.
Meyers’s “abnormal” normal vitals, but she was well aware of the policies that she
employed that guided her to the conclusion she reached. Also in Shadrick the on-site
nursing manager “was not familiar with the SHP policies she was specifically
designated to enforce,” and “SHP nurses followed an undocumented policy and custom
of providing medical assistance only if an inmate asked for it . . . .” 805 F.3d at 740-41.
No such evidence has been presented in this case. In fact Nurse Black, who was very
well versed in the SOAP pathways and protocols that nurses at the jail were required
to utilize, testified that when she was appointed to the Director of Nursing position,
CCS sent a representative to conduct a one-on-one training to educate her on CCS’s
policies and protocols. Nurse Black testified that she was constantly evaluating
whether the nursing staff was complying with those policies and procedures and
bringing them back into compliance if she learns of an instance where they have failed
to follow protocol. Further distinguishing Shadrick, the Sixth Circuit found in that
case that the LPNs were expected to define on their own the scope of their practice –
in this case the SOAP pathways and protocols direct the LPNs in a multitude of
appropriate directions based upon objective clinical findings.
And the LPNs
assessments are reviewed, as they were in the case of Ms. Meyers, in a timely fashion
94
by an RN, in this case Nurse Black, who reviews the LPN assessments for
completeness and thoroughness.
Here, Defendants produced evidence through their nursing expert, Kathryn Wild,
explaining the adequacy CCS policies and procedures. (ECF No. 77-11, Report and
Supplemental Report of Kathryn J. Wild.) Plaintiffs apparently never deposed Ms.
Wild regarding her opinions and have failed to produce evidence calling into question
her opinion that these policies and procedures are compliant with all applicable legal
standards, that they are adequate in every way, and that CCS nursing staff followed
these policies procedures in their treatment of Ms. Meyers. See Shadrick, 805 F.3d at
741. In her Report, Nurse Wild discusses in detail the governing CCS policies and
procedures:
CCS Policy and Procedure, No. J-E-02 – “Receiving Screening” states
that a receiving screening (Form CCS-IN01 available in English or
Spanish) is performed on inmates within 8 hours of arrival at the facility
in order to identify health conditions requiring immediate or ongoing
interventions including separation from the rest of the population because
of dangerous communicable diseases and active substance withdrawal.
The medical screening completed on Ms. Meyers upon admission to the
Macomb County Jail by CCS nursing personnel complied with these
standards and they reasonably questioned this patient regarding her
current and continuing healthcare needs. At the time of this screening,
Ms. Meyers presented as alert and oriented, and denied using any illegal
substance within a month of her booking. Her vital signs and presentation
did not suggest any need to place this patient on withdrawal monitoring,
as 30 days since last use would not have been a red flag for detoxification
monitoring. Ms. Meyers was appropriately referred for chronic care clinic
95
and mental health assessment as required by the standards.
Health care personnel must rely on the patient to report accurate
information during this screening process to appropriately ensure
continuity of care. There was nothing in this patient’s presentation, or
prior incarceration history that would have resulted in any referrals other
than those made by the screening nurse.
The National Commission on Correctional Health Care (NCCHC),
Standards for Health Services in Jails, Section J-A-01 – “Access to
Care” states that inmates have access to care to meet their serious
medical, dental and mental health needs.
CCS Policy and Procedure, No. J-E-11 – “Clinical Pathways” states
that CCS has established clinical pathways to guide the care provided by
nursing personnel. The CCS Chief Medical Officer is responsible for
reviewing the clinical pathways annually and revising, as necessary.
Approved pathways are dated and signed by the Medical Director.
Nursing personnel receive training on the use of the clinical pathways.
The pathways are appropriate for the level of skill and preparation of
medical personnel who will carry it out. Each pathway is in compliance
with the standards of practice for their level of care.
Clinical Pathways do not include any prescription medication used, with
the exception of those covering emergency or life-threatening situations.
Treatment with prescription medication is only initiated upon a written or
verbal order from a practitioner licensed to practice in the State of
Michigan.
During Ms. Meyers incarceration with the Macomb County Jail, and
while under the care of Correct Care Solutions health personnel, she had
access to care for her medical, dental and mental health needs. She was
triaged upon arrival to the facility and appropriate referrals were made to
ensure continuity for her known history of Hepatitis C and Bipolar
Disorder. This patient also submitted a written sick call request and was
seen by nursing personnel and evaluated utilizing appropriate nursing
clinical pathways for her stated complaint and physical presentation.
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On July 2, 2015 Nurse Noland saw Ms. Meyers for her complaint of pain
in the lumbar area. She inspected her back area and found no
abnormalities that suggested anything other than a nonspecific alteration
in comfort. She provided Ms. Meyers with Tylenol 975 mg twice daily
for 2 days so that Ms. Meyers could address her symptoms as needed
(prn) even through her examination elicited no findings other than the
patient’s complaint and minimal swelling in the area. This Tylenol order
appears to have been Nurse Noland’s attempt to help Ms. Meyers deal
with her discomfort, not an indication that she was in any serious pain.
This intervention was well within the standard of care and clearly did not
demonstrate a deliberate indifference to Ms. Meyers medical condition
much less a reckless/intentional disregard of a serious medical condition
of which she knew or should have known.
The National Commission on Correctional Health Care (NCCHC),
Standards for Health Services in Jails, Section J-E-08 – “Emergency
Services” states that the facility provides 24-hour emergency medical,
mental health, and dental services. CCS Policy and Procedure, No. J-E-08
– “Emergency Services” states that emergency medical, mental health and
dental services are provided 24 hours per day. A CCS staff member will
respond to all emergencies upon notification. An emergency on-call
schedule is maintained in the health clinic.
Nursing staff respond by reporting to the area of the emergency with
necessary emergency equipment and supplies. Emergency equipment and
supplies are regularly maintained and accessible to health staff. The
inmate will be stabilized on-site and then transferred to an appropriate
health care unit if necessary.
Notification of on-call physicians and mental health staff will be
accomplished as soon as the situation allows. After hours notification is
accomplished by cell phone.
The health care provider or designee will determine if the inmate needs
to be transported to local emergency room for treatment. Command staff
will ensure request for an ambulance has been accomplished.
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On Sunday, July 7, 2013 at 1638 hours, when nursing staff responded to
the call for emergency assistance they responded immediately and
appropriately. They provided lifesaving measures until emergency
personnel arrived and assumed care.
In her Supplemental Report, specifically responding to Plaintiff’s expert Dr.
Vassallo, Nurse Wild explains that Nurse Jones was not working outside her scope of
practice as an LPN when treating Ms. Meyers based upon provisions of the Michigan
Public Health Code that expressly permit an LPN to perform such assessments under
the supervision of an RN. Nurse Wild explains in her supplemental Report:
Plaintiff’s Expert Dr. Susi Vassallo opines in her report (page 4) that LPN
Jones (Nolan) worked outside her scope when she saw Ms. Meyers at sick
call on July 2, 2013 and attempted to diagnose her serious medical
condition. I disagree with this opinion for the following reasons:
The Michigan Public Health Code, Public Act 368 of 1978: The practice
of nursing includes the care/treatment and counsel/teaching of patients
who (1) are experiencing changes in the normal health processes or (2)
require assistance in the maintenance of health and the prevention or
management of illness, injury, or disability. A registered professional
nurse (RN) is an individual (1) who is licensed to engage in the practice
of nursing and (2) whose scope of practice includes the teaching,
direction, and supervision of less skilled co-workers who perform nursing
activities. An RN may perform under the supervision of a physician or
dentist, and a physician may delegate in writing to an RN the ordering,
receipt, and dispensing of medicines other than certain controlled
substances.
A licensed practical nurse (LPN) is a person who practices nursing, but
who has less comprehensive education and skills than an RN. An LPN
may perform only under the supervision of an RN, physician, or dentist.
The practice of a licensed practical nurse is a health professional subfield
of the practice of nursing; as such, LPNs may not delegate tasks to or
98
supervise other licensed or non-licensed health professionals.
Section R333.16109 defines “Supervision” as the overseeing of or
participation in the work of another individual by a health professional
licensed under this article in circumstances where at least all of the
following conditions exist: a) The continuous availability of direct
communication in person or by radio, telephone, or telecommunication
between the supervised individual and a licensed health professional. b)
The availability of a licensed health professional on a regularly scheduled
basis to review the practice of the supervised individual, to provide
consultation to the supervised individual, to review records, and to further
educate the supervised individual in the performance of the individual’s
functions. c) The provision by the licensed supervising health
professional of predetermined procedures and drug protocol. LPN Jones
(Nolan) did not attempt to provide a medical diagnosis of her patient.
When LPN Jones (Nolan) saw Ms. Meyers at sick call on July 2, 2013,
she was appropriately working under the physician authorized protocol
in place for patient complaints of muscular aches. The following morning,
the supervising registered nurse reviewed Nurse Jones (Nolan’s)
evaluation of Ms. Meyers. Nurse Jones (Nolan) was working well within
her scope of practice as a Licensed Practical Nurse in the State of
Michigan.
(ECF No. 11-7, PgID 1889-90.) When informed that, under Michigan’s Public Health
Code, an LPN may perform nursing activities under the supervision of a registered
nurse or a physician, Dr. Vassallo withdrew her opinion that Nurse Jones was not
qualified to evaluate Ms. Meyers. (Vassallo Dep. at 110-12, PgID 1922.)
Several Sixth Circuit cases have distinguished Shadrick, and reiterated the very
narrow set of facts that will fit within the single incident theory of municipal liability.
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For example in Winkler the detainee,14 who died in custody five days after his
admission to the jail from an undiagnosed duodenal ulcer, also was cared for by an
LPN (Nurse Johnson) who worked at the jail under the supervision (largely by
telephone) of an RN and an on-call doctor. 893 F.3d at 885. The plaintiff claimed that
Nurse Johnson exhibited deliberate indifference to Winkler when she saw him in
response to his first sick call request. Id. at 894. Specifically, plaintiff asserted that
Nurse Johnson “failed to follow various opiate-withdrawal and abdominal discomfort
protocols in place at the time.” Id. The Sixth Circuit, first addressing the individual
capacity claim against Nurse Johnson, concluded that while Nurse Johnson’s actions
may have fallen below the standard of care, and she may have failed to follow internal
policies, she appropriately gathered information about the inmate’s condition and
shared it with a medical professional, and did not exhibit deliberate indifference to his
medical needs. Id. Turning to the municipal liability claim against the jail’s private
healthcare provider (“Healthcare”), the Sixth Circuit concluded that the testimony of
plaintiff’s medical expert that the training provided to Nurse Johnson was inadequate,
14
At the time Winkler was issued, pretrial detainees’s Fourteenth Amendment claims
of inadequate medical care were still analyzed under the same subjective intent
deliberate indifference standard applied to convicted prisoners under the Eighth
Amendment. As the Sixth Circuit has recognized however, there is a body of
precedent building in other circuits that applies an objective deliberate indifference
standard in the case of denials of medical care to pre-trial detainees. See Richmond v.
Huq, 885 F.3d 928, n. 3 (6th Cir. 2018).
100
as allegedly demonstrated by her ignorance of and failure to follow internal policies,
was insufficient to create a genuine issue of material fact on the issue of Healthcare’s
deliberate indifference. Id. at 904-05. Distinguishing Shadrick, the Sixth Circuit
reasoned:
[D]espite Winkler's argument to the contrary, the facts of this case are
easily distinguishable from those of Shadrick v. Hopkins County, 805
F.3d 724 (6th Cir. 2015). The evidence in Shadrick revealed that the jail's
private healthcare provider did not have a training program for its LPN
nurses beyond very limited on-the-job training concerning issues like
where supplies were kept. Id. at 740 (noting that the LPN nurses received
no feedback, regular evaluations, or ongoing training about their medical
responsibilities in the jail setting, and that two high-level supervisors
disclaimed any responsibility for training and supervising the LPN
nurses). According to Shadrick, there is an “obvious need to train LPN
nurses who lack knowledge about the constitutional dimensions of
providing adequate medical care to inmates in the jail setting.” Id. at 742.
The court therefore concluded that “[t]he lack of evidence that [the
private healthcare provider] trained and supervised its nurses in their
constitutional obligations to provide medical care could lead a reasonable
jury to find that [the private healthcare provider] was deliberately
indifferent to the inmates with whom the nurses came into contact.” Id.
at 744.
Here, there is evidence showing that Healthcare provided training to all
of its medical staff concerning the civil rights of inmates, including the
right to adequate medical care. This training included an initial
one-on-one training session and ongoing group sessions several times a
year, as well as specific training on how to provide healthcare to a
subgroup of individuals with addictions. Because Winkler has not
provided any contrary evidence or otherwise explained how Healthcare's
training program was inadequate, the record would not support a jury
finding that Healthcare exhibited deliberate indifference toward inmates
at the Detention Center by failing to adequately train its medical staff. See
Miller v. Calhoun County, 408 F.3d 803, 816 (6th Cir. 2005) (“Mere
101
allegations that an officer was improperly trained or that an injury could
have been avoided with better training are insufficient to prove
liability.”).
893 F.3d at 904-05.
The Sixth Circuit also distinguished Shadrick in North, supra, finding adequate
training and supervision of the healthcare LPNs:
Although some of the factors relevant in Shadrick are present here, there
are also some important differences. In addition to LPNs, the jail
employed nurses and medical providers with more advanced training and
certifications (e.g., registered nurses (RNs), nurse practitioners (Nps), and
physicians) to treat inmates. . . . There is no evidence that nurses were
permitted to use the policies at their discretion or to define the scope of
their practice and no indication that nurses or providers refused to provide
care unless an inmate requested it. In sum, the County’s training program
is not so inadequate that failing to provide additional training constitutes
deliberate indifference to an obvious risk of injury.
North, 754 F. App’x at 393-94. See also Bays v. Montmorency, County, No. 15-10534,
2017 WL 242841, at *1-2 (E.D. Mich. Jan. 20, 2017) (distinguishing Shadrick where
nurses demonstrated familiarity with the policies and procedures governing their work
and there was no evidence “of an undocumented custom of providing medical
assistance only if requested, in violation of the written policies,” as there was in
Shadrick).
The facts surrounding CCS’s treatment of Ms. Meyers align with Winkler,
North, and Bays, and not with Shadrick. The evidence of the significant training and
oversight provided by CCS, as well as Nurse Jones’s and Black’s complete awareness
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and understanding of the policies and procedures they were required to follow, is
extensive and unrebutted. Plaintiff’s own expert, Dr. Vassallo, withdrew her opinion
that Nurse Jones was acting outside her scope of practice once Dr. Vassallo was
confronted with Nurse Wild’s testimony regarding the provisions of Michigan Public
Health Code which demonstrate the falsity of that opinion. Nurse Jones may have
lacked the knowledge and training that would have enabled her to connect Ms.
Meyers’s history of IV drug abuse and her back pain to arrive at a suspicion of some
type of life-threatening infection. But the Constitution, as interpreted in numerous
Sixth Circuit opinions discussed supra, does not demand that Nurse Jones possess that
level of knowledge or training in order to provide adequate healthcare to the inmates
she treats. Ms. Meyers’ death was a tragedy – and perhaps preventable with earlier
detection of her underlying condition. But no reasonable jury could conclude that fault
under § 1983 lies with CCS or its staff, none of whom were deliberately indifferent to
Ms. Meyers’s medical needs.
IV.
CONCLUSION
For the foregoing reasons, the Court GRANTS the Macomb County Defendants’
Motion for Summary Judgment (ECF No. 82), GRANTS the CCS Defendants’ Motion
for Summary Judgment (ECF No. 77), DENIES Plaintiff’s Motion for Sanctions (ECF
103
No. 102),15 and DISMISSES Plaintiff’s Complaint WITH PREJUDICE.
IT IS SO ORDERED.
s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: April 23, 2019
15
Plaintiff filed a Motion for Sanctions seeking spoliation sanctions in the form of an
adverse inference jury instruction that the illegible portion of the single sick call
request in the record, the portion that allows the inmate to describe their symptoms in
more detail, “would support Plaintiff’s deliberate indifference claim against [the CCS
Defendants] for deliberate indifference in failing to ask for a higher level of care from
a nurse or doctor.” (ECF No. 102, Motion for Sanctions 9-10, PgID 3756-57.) First
of all, CCS did retain the sick call request. And Plaintiff proffers no evidence that CCS
played any part in whatever processes resulted in a portion of the sick call slip being
illegible, nor that CCS acted with the requisite culpable state of mind. Accordingly,
the Motion for Sanctions is DENIED.
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