Stojcevski et al v. Macomb, County of et al
Filing
186
OPINION and ORDER. Signed by District Judge Linda V. Parker. (RLou)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAFINKA STOJCEVSKI, as Personal
Representative of the Estate
of DAVID STOJCEVSKI,
Plaintiff,
Civil Case No. 15-11019
Honorable Linda V. Parker
v.
COUNTY OF MACOMB, ET AL.
Defendants.
________________________________/
OPINION AND ORDER
On June 11, 2014, David Stojcevski (“David”) began serving a thirty-day
sentence in the Macomb County Jail, which turned out to be a life sentence when
he died sixteen days later from acute withdrawal from chronic benzodiazepine,
methadone, and opiate medications. Claiming that Defendants’ deliberate
indifference to David’s serious medical needs caused his death, the personal
representative of David’s estate (“Plaintiff”) filed this action under 42 U.S.C.
§ 19831 against two groups of defendants. The Court will refer to these two groups
Plaintiff also initially alleged a gross negligence claim under Michigan law
against Defendants. The Court entered a stipulated order dismissing that claim on
July 21, 2016. (ECF No. 56.) While the dismissal was without prejudice, Plaintiff
never moved to amend the complaint to reassert the claim. Nevertheless, after
Plaintiff moved and was granted leave to amend her complaint to add a § 1983
(Cont’d . . .)
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as the “Macomb County Defendants” and the “Correct Care Solutions Defendants”
(hereafter “CCS Defendants”). The Macomb County Defendants currently
remaining in this action are: County of Macomb; Macomb County Sheriff Anthony
M. Wickersham (“Sheriff Wickersham”); Macomb County Jail Administrator
Michelle M. Sanborn (“Administrator Sanborn”); and Macomb County Corrections
Deputies Walter Oxley, Paul Harrison, John Talos, Morgan Cooney, Brian
Pingilley, Brian Avery, Steven Vaneenoo, Mitchell Blount, Keith Ray, David
White, and Larry (James) Helhowski.2 The remaining CCS Defendants are:
Correct Care Solutions, LLC (“CCS”); CCS Acting Director of Nursing Monica
Cueny; CCS Medical Director Lawrence Sherman; CCS nurses Tiffany DeLuca,
Mical Bey-Shelley, Vicky Bertram, Heather Erhlich, Sarah Breen, Thressa
Williams, Linda Parton, and Amber Barber; CCS Health Services Administrator
David Arft; CCS Mental Health Director Natalie Pacitto; and CCS Mental Health
Professional Chantalle Brock.
claim against new defendants, she filed an amended pleading that again included
her gross negligence claim (Count III). (See ECF No. 104 at Pg ID 2321-2326.)
Because Plaintiff never sought leave to re-assert her state law claim, the Court is
sua sponte dismissing without prejudice Count III of the Second Amended
Complaint.
2
In her initial and First Amended Complaint, Plaintiff named “Deputy John/Jane
Doe’s” [sic] and “John/Jane Doe providers.” While Plaintiff did not include these
unnamed individuals in her Second Amended Complaint, they were never
terminated from this action. The Court is doing so now, sua sponte.
2
The matter is presently before the Court on dispositive motions filed by: (1)
Sheriff Wickersham (“Wickersham MSJ”) (ECF No. 142); (2) Macomb County,
Administrator Sanborn, and Sheriff Wickersham in their official capacities
(“Macomb Cty. Official Capacity MSJ”) (ECF No. 143); (3) the corrections deputy
defendants (“Deputies’ MSJ”) (ECF No. 146); and (4) the CCS Defendants (“CCS
Defs.’ MSJ”) (ECF No. 148). The motions have been fully briefed. Finding the
facts and legal arguments fully developed in the parties’ briefs, the Court is
dispensing with oral argument with respect to Defendants’ motions pursuant to
Eastern District of Michigan Local Rule 7.1(f).
I.
Summary Judgment Standard3
Summary judgment pursuant to Federal Rule of Civil Procedure 56 is
appropriate “if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The central inquiry is “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one
In their motions, the Macomb County Defendants seek summary judgment
pursuant to Federal Rule of Civil Procedure 56, as well as dismissal under Rule
12(c). With respect to the latter, the Macomb County Defendants assert that
Plaintiff fails to allege sufficient facts in her Second Amended Complaint to state
plausible claims against particular defendants. As Plaintiff responds to the
Macomb County Defendants’ motions by setting forth particularized facts on
which she premises her claims against each defendant, the Court is reviewing her
claims under Rule 56’s summary judgment standard only.
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party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251-52 (1986). After adequate time for discovery and upon motion, Rule 56
mandates summary judgment against a party who fails to establish the existence of
an element essential to that party’s case and on which that party bears the burden
of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The movant has the initial burden of showing “the absence of a genuine
issue of material fact.” Id. at 323. Once the movant meets this burden, the
“nonmoving party must come forward with specific facts showing that there is a
genuine issue for trial.” Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986) (internal quotation marks and citation omitted). To
demonstrate a genuine issue, the nonmoving party must present sufficient evidence
upon which a jury could reasonably find for that party; a “scintilla of evidence” is
insufficient. See Liberty Lobby, 477 U.S. at 252. The court must accept as true the
non-movant’s evidence and draw “all justifiable inferences” in the non-movant’s
favor. See Liberty Lobby, 477 U.S. at 255.
II.
Factual Background
David was arrested by Roseville Police Department officers on June 10,
2014, at which time he had an outstanding bench warrant for the civil infraction of
failing to pay or appear in court on a careless driving charge. (Deputies’ MSJ Exs.
1, 2, ECF Nos. 146-2, 146-3.) On Wednesday, June 11, 2014, a judge in
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Michigan’s 39th District Court sentenced David to serve thirty (30) days in jail or
pay $772.00 for the infraction. (Id. Ex. 1, ECF No. 146-3.) Later that day, David
was transferred to the Macomb County Jail to serve his sentence, at which time
Tiffany DeLuca, LPN (“Nurse DeLuca”) collected intake medical information
from him. (Medical/Mental Health Records (hereafter “HR”) at 361, ECF No.
148-2.)4
Nurse DeLuca noted the following at David’s intake: (a) he weighed 195
pounds; (b) his blood pressure was 120/84, his pulse rate was 97, and his
respiratory rate was 12; (c) he had been prescribed methadone prior to
incarceration; (d) his mental status was noted as “Alert orientation, Affect
appropriate, Logical thought processes, Speech Appropriate, Mood Appropriate,
Activity Appropriate”; (e) there were no indicators that David was suicidal; and (f)
no history of psychotropic medications, psychiatric hospitalization or outpatient
mental health treatment (Id. at 362-63.) Nurse DeLuca initiated the Clinical
Opiate Withdrawal Scale (“COWS”) protocol and ordered over-the-counter
medications Meclizine, acetaminophen, and Loperamide for opiate withdrawal
symptoms as needed. (Id. at 348-50, 392.)
David’s medical and mental health records from the Macomb County Jail are filed
under seal.
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4
David had been incarcerated in the Macomb County Jail on several previous
occasions between September 2, 2006 and August 2009. (Deputies’ MSJ Ex. 3,
ECF No. 146-4.) The jail’s records reflect that David in fact had a psychiatric
history of depression, anxiety, and substance abuse that required prescriptions for
Xanax and Klonopin (both of which are benzodiazepines), psychiatric
hospitalization, and outpatient mental health treatment. (Pl.’s Resp. to CCS Defs.’
MSJ Ex. 9 at 198-99, ECF No. 158-9.) He also had a history of cerebral trauma
and seizure. (Id.) According to those records, David’s weight between September
2006 and August 2009 fluctuated between 175 and 190 pounds. (Id. at 184-207.)
Nurse DeLuca did not review David’s prior jail records at intake, nor did she check
David’s prescription history through the Michigan Automated Prescription System
(“MAPS”). MAPS reflected that David was being prescribed Xanax, Klonopin,
and methadone from January 2014 until his June 11, 2014 incarceration. (Id. Ex.
10, ECF No. 158-10.)
Under the COWS protocol, a physician is to be notified if a prisoner has the
potential for poly-substance withdrawal. (HR at 348.) Unaware of David’s other
medications, Nurse DeLuca did not notify CCS’ Medical Director at the jail,
Lawrence Sherman, MD (“Medical Director Sherman” or “Dr. Sherman”), or any
other CCS staff of a potential for poly-substance withdrawal.
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At 8:00 p.m. on June 11, 2014, Heather Erhlich, LPN (“Nurse Erhlich”)
performed a COWS assessment, noting that David’s blood pressure was 132/90
and his pulse was 92. (HR at 398.) After assessing values to various conditions
related to opiate withdrawal (e.g., sweating, restlessness, joint ache, tremors),
Nurse Erhlich assigned David a COWS score of 4, which is ranked as “mild.”5
(Id.) Nurse Erhlich gave David acetaminophen and Meclizine at 10:22 p.m. (HR
at 367.)
On Thursday, June 12, at approximately 5:00 a.m., Nurse Ehrlich visited
David again and measured his vital signs (blood pressure: 116/76; pulse: 70) and
recalculated his COWS score (3). (HR at 398.) Nurse Ehrlich gave David
acetaminophen, Loperamide, and Meclizine at 6:48 a.m. (HR at 367.) CCS’
Acting Director of Nursing at the time, Monica Cueny, RN (“Nursing Director
Cueny”), reviewed David’s COWS protocol initiation paperwork at 9:35 a.m. on
June 12. (HR at 348-50.) At 1:00 p.m., a nurse rechecked David’s vital signs
(blood pressure: 110/78; pulse: 100) and assigned him a COWS score of 3. (HR at
398.) At approximately 8:00 p.m., Thressa Williams, LPN (“Nurse Williams”)
checked David’s vital signs (blood pressure: 110/72; pulse: 74) and assigned him a
The scores are: 5-12=Mild; 13-24=Moderate; 25-36=Moderately Severe; and
more than 36=Severe Withdrawal. (HR at 398.)
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COWS score of 2. (Id.) At 10:42 p.m., Nurse Williams gave David
acetaminophen and Loperamide. (HR at 367.)
On Friday, June 13, Nurse Williams visited David but apparently was not
able to measure his vitals or assess his COWS score. (See id. at 398.) At 11:23
a.m., Amber Barber, LPN “(Nurse Barber”) gave David acetaminophen. (Id. at
367.) At 1:00 p.m., Nurse Barber checked David’s vital signs (blood pressure:
108/72; pulse: 88) and calculated his COWS score as 2. (Id. at 398.)
On Saturday, June 14, Linda Parton, LPN (“Nurse Parton”) checked David’s
vital signs (blood pressure: 120/84; pulse 84) and recalculated David’s COWS
score as “0.” (Id.) At 1:00 p.m., another nursed checked David’s vitals (blood
pressure 130/84; pulse: 105) and recalculated his COWS score as 2. (Id.) The
same nurse gave David acetaminophen at 1:33 p.m. (Id. at 367.) Nurse Barber
visited David at 8:00 p.m., but was unable to assess him. (Id. at 398.)
Nurse Barber checked David’s vital signs (blood pressure: 114/90; pulse:
98) and assessed his COWS score as 2 the following morning at 5:00 a.m., Sunday,
June 15. (Id.) Another nurse checked David at 1:00 p.m., at which time his blood
pressure was 134/78, his pulse was 97, and his COWS score was 2. (Id.) David
received acetaminophen at 1:19 p.m. (Id. at 398.) Because the nursing staff
assessed David’s COWS score below 12 for 72 hours, he was deemed to have
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completed the detoxification protocol and jail command was so notified. (Id. at
360.)
There are no entries in David’s medical records for Monday, June 16, 2014.
At approximately 7:50 a.m. the following day, however, Corrections Deputy
William Licavoli requested assistance from medical staff after observing David
“laying on his back on his bunk blinking his eyes” and seemingly “unable to speak
or move.” (CCS Defs.’ Mot. Ex. C, ECF No. 148-4 at Pg ID 4094.) Mical BeyShelley, LPN (“Nurse Bey-Shelley”) responded to David’s cell. (HR at 395.)
In a late entry to David’s medical records the following day, June 18, Nurse
Bey-Shelley indicated that she responded to Deputy Licavoli’s call to David’s cell
on June 17, at which time she took David’s vitals and placed an ammonia inhalant
under his nose, which caused him to “open[] his eyes wide.” (Id.) Nurse BeyShelley reported that David continued to stare at the medical and corrections staff,
but would not respond to the medical staffs’ questions. (Id.) Nurse Bey-Shelley
had David taken to the medical clinic in a wheelchair for further observation and to
be seen by Medical Director Sherman.
During his deposition in this case, Dr. Sherman testified that he examined
David in the medical clinic on June 17, although Dr. Sherman did not document
his assessment at that time. (Sherman Dep. at 107, ECF No. 148-14 at Pg ID
4380.) While Dr. Sherman stated that he is “normally … very fastidious about
9
writing [his] notes as [he] see[s] the patient,” he claimed that he failed to do so in
this case because it was late in the day and the exam did not occur in his office.
(Id. at 108, Pg ID 4380.)
At 7:29 p.m. on June 24, 2014, Dr. Sherman made a late entry in David’s
medical records regarding his assessment of David on June 17.6 Dr. Sherman
wrote:
I went to see this patient who was being observed in the Medical Unit
for questionable seizures. I observed him fluttering his eyes in what
was certainly not a seizure but what was most likely his poor attempt
to feign one. I shook his shoulders and told him to sit up, at which
point he suddenly stopped the eye fluttering behavior and exclaimed,
“What’s happening?” as if he were unaware.
(HR at 393.) Dr. Sherman concluded that no further treatment was needed and
instructed that David be returned to his general population housing. (Id.)
According to Nurse Bey-Shelley’s entry in David’s medical records—also made
late, but only one day after the June 17 encounter—David verbalized his
understanding and was able to stand and walk back to the housing unit “with a
steady gait.” (HR at 395.)
At 3:48 p.m. on June 17, Corrections Deputy Campau observed David
“[h]allucinating” and “talking to ppl [people] not there[.]” (HR at 366.)
In the entry, Dr. Sherman indicated that he saw David on June 23 rather than June
17. (See HR at 393.) Dr. Sherman testified that this was a mistake. (Sherman
Dep. at 107, ECF No. 148-14 at Pg ID 4380.)
(Cont’d . . .)
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According to Deputy Campau, David also stated “that he died earlier today.” (Id.)
Deputy Campau completed a form referring David to the jail’s mental health unit,
checking “Other Inappropriate Behavior” as the reason for the referral.7 (Id.) The
form reflects that “Danielle from MH [Mental Health]” instructed Deputy Campau
to place David in “HIG [High Observation Green],” which is for inmates
exhibiting active suicidal behavior and/or verbalizations. (Id.) Inmates in HIG are
placed in anti-suicide gowns. (Pacitto Dep. at 96, ECF No. 148-7 at Pg ID 4170.)
They cannot possess sheets, blankets, or personal property and are placed in a cell
where they are continuously monitored (i.e., twenty-four hours a day/seven days a
week) via closed circuit television by deputies on “mental health control duty.”
(Id.; HR at 359; see also Avery Dep. at 11, ECF No. 162-9 at Pg ID 5580.)
The deputies assigned mental health control duty work at a desk or counter
across the hall from three video-monitored male mental health unit cells: “MH-1,”
“MH-2,” and “MH-3”. (Harrison Dep. at 12, ECF No. 162-19 at Pg ID 5780;
Deputies’ MSJ Ex. 19, ECF No. 162-20.) There are seven television monitors on
the desk or counter that provide video feeds from the mental health unit cells.
David was housed in MH-1, which was approximately six or seven feet from the
The form listed the following possible reasons for the referral: “Suicidal,”
“Homicidal, “Mutilative,” “Hostile, Angry,” and “Other Inappropriate Behavior.”
(HR at 366.) In a comments section on the form, Deputy Campau described the
behavior he observed (and described above). (Id.)
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monitoring location. (Harrison Dep. at 20, ECF No. 162-19 at Pg ID 5782.) From
their duty station, the control officers can see into MH-1, which has a window that
is approximately four feet tall by two or three feet wide. (Id. at 30-31, Pg ID
5785.) A “mental health runner” also is responsible for completing rounds of the
unit every fifteen minutes to check on the inmates. (Harrison Dep. at 29, Pg ID
5785.)
Natalie Pacitto, CCS’ Director of Mental Health at the Macomb County Jail
during David’s incarceration (“Director Pacitto”), testified that there are many
reasons why an inmate may require high observation other than being suicidal;
however, the jail’s form only identifies that one reason for HIG placement.
(Pacitto Dep. at 103, ECF No. 148-7 at Pg ID 4172.) At their depositions in this
matter, the deputy defendants testified that they understand that an inmate in High
Observation Green is suicidal and they were not advised otherwise in David’s case.
(See, e.g., Avery Dep. at 21; ECF No. 162-9 at Pg ID 5583; Ray Dep. at 9-11, ECF
No. 162-10 at Pg ID 5597; Harrison Dep. at 28-29, ECF No. 162-19 at Pg ID
5784-85.) Director Pacitto testified that when an inmate is placed in HIG, the jail’s
mental health professionals receive a referral and are responsible for evaluating the
inmate. (Pacitto Dep. at 133, ECF No. 148-7 at Pg ID 4180.) In David’s case,
however, CCS’ mental health professionals sent daily memos to jail command
requiring them to keep David in HIG because they reportedly were unable to assess
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his mental health status. (See HR at 351-59; see Pacitto Dep. at 69-, ECF No. 15817 at Pg ID 5282.)
At approximately 7:25 p.m. on June 17, Deputy Paul Harrison observed
David “twitching on the ground” in his mental health unit cell. (CCS Defs.’ Mot.
Ex. E, ECF No. 148-6 at Pg ID 4144.) Deputy Harrison entered the cell and asked
David if he was ok, but David did not respond. (Id.) Deputy Harrison called
nursing staff to his location. (Id.)
Vicky Bertram, RN (“Nurse Bertram”), Nurse Bey-Shelley, and Sara Breen,
LPN, responded to Deputy Harrison’s call. When they arrived, David was sitting
on the floor of the cell and stated that “all his organs, but 10% of his heart was
removed and his arms shreaded [sic] a couple days ago” while in the jail. (HR at
396.) David also told the nurses that he was taking “4 mg of [X]anax daily for
anxiety and oxycodones for pain.” (Id.) Nurse Bertram documented David’s vital
signs (blood pressure: 150/98; pulse: 77; respiratory rate: 18; pulse oximetry: 99),
noted that his pupils were reactive bilaterally, and instructed David “to let
corrections/medical staff know if symptoms worsen.” (Id.) According to
Plaintiff’s summary of the cell video, the nurses spent seven minutes with David
on this occasion. (Pl.’s Resp. to CCS Defs’ Mot. Ex. 7 at 9, ECF No. 158-7 at Pg
ID 4971.)
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At 2:15 p.m. the following day, Wednesday, June 18, Mental Health
Professional Chantalle Brock (“MHP Brock”) visited David to assess his mental
health status. (HR at 387.) David was lying on the lower bunk and exhibiting
“rapid eye movement.”8 (Id.) MHP Brock reported that she was “unable to
assess” David because he “refused to engage” with her. (Id.)
At her deposition in this case, MHP Brock was questioned about her
indication that David “refused to engage” with her. MHP Brock testified that she
believed David was able to respond to her, but chose not to do so. When asked
what criteria she used to make that determination, MHP Brock provided that David
was looking at her while she spoke to him from outside his cell, his eyelids were
moving, and she spoke loudly.9 (Brock Dep. at 59-61, ECF No. 158-12 at Pg ID
5090.) MHP Brock acknowledged, however, that she did not know if David was in
a state of reality or psychosis and able to understand her at the time. (Id.) MHP
Brock referred David for a medical evaluation to determine whether he was
MHP Brock testified that she meant to indicate that David was exhibiting “eyelid
fluttering” (that is, he was moving his eyelids very fast) when she wrote “rapid eye
movement.” (Brock Dep. at 51-52 58, ECF No. 158-12 at Pg ID 5088, 5090.)
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MHP Brock testified that she never entered David’s cell during her assessments of
him and that she spoke to him through the food chute. (Brock Dep. at 87-88, ECF
No. 158-12 at Pg ID 5097.) The cell video in fact does not reflect any mental
health professional entering David’s cell during their reported daily assessments of
him.
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detoxing or there was some other medical problem inhibiting his ability to respond
to her. (Id.)
At 2:57 p.m. on June 18, Nurse Bey-Shelley and Nursing Director Cueny
visited David. In a June 24, 2014 late entry to the health record, Nursing Director
Cueny noted that David was lying on the lower bunk with his eyes closed and
began “flutter[ing] his eyelids” open and closed when she approached him. (HR at
394.) Nursing Director Cueny recorded David’s vitals (“Respirations
even/nonlabored. Radial pulse strong, regular. BP 138/88 HT 98 reg SpO2 98% on
room air”) and reported that he did not appear to be experiencing auditory or visual
hallucinations and was “not engaging initially with [her].” (Id.) David then told
Nursing Director Cueny and Nurse Bey-Shelley that he “take[s] Klonopin 2-3 tabs
at home, last taken 2 weeks ago for anxiety.” (Id.) Although David stated that he
had been prescribed Klonopin, he was unable to provide the name or location of
the pharmacy where he filled the prescription. (Id.) Nursing Director Cueny did
not recall asking David the dosage of his medications and her record does not
include that information. (Id.; see also Cueny Dep. at 90-92, ECF No. 148-3 at Pg
ID 4040.) She did ask David if he had ever had a psychiatric hospitalization for
anxiety, and he nodded “yes,” but was unable to state where or when. (Id.)
Nurse Bey-Shelley and Nursing Director Cueny “encouraged” David to
drink two 6-ounce glasses of water, which he “tolerated without difficulty.” (Id.)
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They then instructed David to notify staff of any changes and notified the
corrections deputies to inform the medical staff of any changes. (Id.) Nursing
Director Cueny testified that she immediately went back to the medical clinic after
visiting David, reviewed his medical chart, and telephoned Dr. Sherman who did
not issue any additional orders. (Cueny Dep. at 103-07; see also HR at 394.) In
her June 24, 2014 late entry to David’s medical records regarding her June 18
assessment of him, Nursing Director Cueny wrote: “Continue with COW[S]
protocol as ordered.” (HR at 456.) As indicated, however, the COWS protocol had
been terminated several days earlier, on June 15.
Later in the evening on June 18, Nurse Bertram and two other nurses visited
David in his cell. (Bey-Shelley Dep. at 178-80, ECF No. 148-9 at 4307; Cell video
at 19:21 on 6/18/14.)10 No entries were made in the health record reflecting this
visit.
At 9:50 a.m. on Thursday, June 19, Mental Health Professional Danyelle
Nelson visited David. (HR at 385-86.) MHP Nelson noted that David was “laying
on the floor naked in his room with one arm half in the air with rapid eye
movement” and that he “refused to engage with [her].” (Id. at 386.) MHP Nelson
Plaintiff submitted the video in the traditional manner and under seal. (See ECF
No. 162-4.)
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reported that she was “unable to assess” David’s mental status, noting that he
“refused.” (Id. at 385-86.)
A notation in the Mental Health Log Book at 12:00 p.m. on June 19 reads
that David was “more coherent” and was “[a]dvised he needs to eat.” (CCS Defs.’
Mot. Ex. G at 159, ECF No. 148-8 at Pg ID 4220.) At 12:43 p.m., David is seen
eating the meal delivered to his cell. This is the first time he had eaten since
entering the observation cell on June 17.
At 9:50 a.m. on Friday, June 20, MHP Nelson visited David again. (Id. at
383-84.) David was lying on the floor with his anti-suicide gown draped over his
body. (Id.) MHP Nelson noted that he again “refused” to engage with her. (Id.)
The Mental Health Log Book reflects that a nurse “cleared” David at 1:35 p.m.
(CCS Defs.’ Mot. Ex. G at 164, ECF No. 148-8 at Pg ID 4225), although there are
no notations in David’s medical records recording this visit. A review of the cell
video reflects that this visit lasted forty seconds. At 6:12 p.m., David is seen in the
jail video eating the meal delivered to his cell. At 10:21 p.m., another nurse is seen
on the video visiting David for seven minutes, measuring his vital signs, and
providing him with something to drink. (Cell video at 22:21 on 6/20/14.)
On Saturday, June 21, MHP Brock saw David at 9:35 a.m. (HR at 381-82.)
She described David as “lying on the floor naked with rapid eye movement.” (Id.
at 382.) MHP Brock documented that David asked if he “will be receiving
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medication within the facility” and “after learning medication has not been ordered
at this time, … ended contact and refused to fully engage with [her].” (Id.) MHP
Brock further documented that she had “received collateral information that
[David] fully engaged with nursing staff prior to [her] visit[.]” (Id.) She therefore
“suspect[ed]” and reported that David was “exaggerating sx’s [symptoms] for
secondary gain[.]” (Id.)
The cell video shows Nurse Bey-Shelley visiting David at 1:59 p.m. on June
21 for approximately five minutes. (Cell video at 13:59 on 6/21/14.) There are no
notations in the health record documenting this visit.
On Sunday, June 22, 2014, an unidentified officer attempted to interview
David to complete the Macomb County Jail Classification Checklist. (Pl.’s Resp.
to Deputies’ MSJ Ex. 1 at MC 40, ECF No. 162-2.)11 The officer indicated on the
form that he or she was “unable” to interview David because he was “incoherent.”
(Id.)
At 9:15 a.m. on the same date, MHP Brock visited David again. (HR at 37980.) According to MHP Brock’s notes, David was lying naked on the lower bunk
and “refused” to engage with her. (Id.) In her notes, MHP Brock also repeated her
assessment that David was exaggerating his symptoms for secondary gain. (Id.)
No deputies or health care staff entered David’s cell on this date.
11
This record is sealed.
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At 11:00 a.m. the following day, June 23, MHP Nelson saw David, who was
naked and lying on the lower bunk. (HR at 377-78.) MHP Nelson was “unable to
assess” David’s mental status, noting that he “refused” to engage with her. (Id.)
Nurse DeBene saw David at 3:47 p.m. and spent approximately two minutes with
him. (Cell video at 3:47 p.m. 6/23/14; CCS Defs.’ Mot Ex. G at 177, ECF No.
148-8 at Pg ID 4238.) There are no notations in David’s health records regarding
this visit. However, there is a notation in the Mental Health Log Book at the same
time as Nurse DeBene’s visit stating that David was “up and aware and drinking
water.” (CCS Defs.’ Mot. Ex. G at 177, ECF No. 1488 at Pg ID 4238.)
David had defecated and urinated on the bunk shortly before Nurse DeBene
visited him and he is seen in the jail video attempting to clean the mattress with
toilet paper after Nurse DeBene left his cell. At 5:04 p.m., Nurse DeBene visited
David again and took him to the medical unit for a shower. (Id. at 178, Pg ID
4239.) The jail cell video shows David eating an apple when he returned to his
cell. At 8:14 p.m. on June 23, David can be seen lying down on the lower bunk,
where he remained until 12:45 p.m. the following day.
On that date, Tuesday, June 24, MHP Brock visited David at 10:50 a.m., but
he again “refused” to engage with her. (HR at 375-76.) MHP Brock noted that
David was lying naked on the lower bunk. (Id.) The jail video reflects that David
ate at 1:00 p.m. At 4:36 p.m., David lay on the floor, where he remained until 2:10
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p.m. the following day. A nurse and two corrections officers entered David’s cell
at 9:34 p.m. on June 24, although there are no notations in his health records
regarding this visit and it is not evident from the video whether David’s vitals were
checked or if any other assessment(s) was made regarding his condition. (Cell
video at 9:34 p.m. 6/24/14.) The nurse filled a cup of water for David and placed it
on the counter. (Id.)
At 2:10 p.m. on Wednesday, June 25, David got up and drank from the sink.
Six minutes later, the video shows him lying down on the floor naked and
experiencing convulsions that last almost a minute. Approximately thirty minutes
later, Mental Health Professional Kelly Mann conducted the daily assessment of
David. (HR at 373-74.) According to her report, David was still lying naked on
the floor. (Id.) MHP Mann recorded that David “refused” to engage with her.
(Id.) At 9:34 p.m., two deputies and a nurse entered David’s cell for thirty
seconds. David, who is still lying naked on the floor, is unresponsive. There is no
notation in the health records regarding this visit, but notes were made in the
Mental Health Log Book that David’s vital check was “good.” (CCS Defs.’ Mot.
Ex. G at 188, ECF No. 148-8 at Pg ID 4240.)
On Thursday, June 26, Medical Director Sherman, Director of Nursing
Cueny, Mental Health Director Pacitto, Health Services Administrator David Arft,
RN, and CCS’ psychiatrist at the jail (“Dr. Haque”) attended a “Care Team”
20
meeting between 11:50 a.m. and 12:30 p.m. (CCS Defs.’ Mot. Ex. J, ECF No.
148-11 at Pg ID 4313-16.) During the “open floor” portion of the meeting, Dr.
Sherman brought up David and expressed that he feels David is “faking seizures,
not even pseudo-seizures.” (Id. at 3, Pg ID 4315.) Dr. Sherman stated that
David’s vitals were normal and that he (Dr. Sherman) was “[n]ot concerned.” (Id.)
Dr. Sherman added that the mental health staff indicated that David was “refusing
or unable to engage in visiting with them” and suspected David was “med
seeking.” (Id. at 3-4, Pg ID 4315-16.) “[T]o rule out any possible new MH
[mental health] condition[,]” the committee discussed David being seen by Dr.
Haque on Monday, June 30. (Id.)
At 1:50 p.m. on June 26, MHP Nelson conducted the daily mental health
assessment of David and found him lying on the floor of the cell, partially covered
by the anti-suicide gown, “mildly shaking with eye flutters.” (HR at 371-72.)
David in fact had been lying on the floor on his stomach since 2:16 p.m. the day
before. David was still in the same position at 11:23 p.m. on June 26, when a
deputy entered the cell for thirty seconds. It appears from the cell video that the
deputy attempted to engage David, who was unresponsive, and may have checked
David’s wristband for the headcount reflected at the same time in the Mental
Health Log Book. (See CCS Defs.’ Mot. Ex. G at 188, ECF No. 148-8 at Pg ID
4249.) At this point, David had been lying on the cell floor, primarily on his
21
stomach, for almost twenty-nine hours. He had not eaten since 1:00 p.m. on June
24, and had not consumed fluids since 2:10 p.m. on June 25.
At 10:40 a.m. on Friday, June 27, MHP Brock conducted the daily mental
health assessment of David, who was still lying on the floor naked, but had moved
under the bunk. (HR at 369-70.) MHP Brock noted “eye fluttering movements”
and that David “refused” to engage with her. (Id.) She therefore wrote that she
was “unable to assess” his mental status. (Id.) A review of the video from this
date shows David apparently sweating and experiencing significant twitching,
convulsions, and involuntary movements of his arms and legs. He seems to be
writhing across the cell floor at times and his breathing appears labored. At
approximately 5:20 p.m., two deputies entered David’s cell and found him
unresponsive and without a heartbeat or pulse. (HR at 400-02, 454-55.) The
deputies called for medical staff assistance and began performing CPR, which the
medical staff continued when they arrived. (Id.) An ambulance was summoned,
and David was transported at 5:50 p.m. to the hospital, where he was pronounced
dead.
Mary E. Piettangelo, MD, Deputy Medical Examiner for the Macomb
County Medical Examiner’s Office, performed on autopsy on June 30, 2014.
(Autopsy Report, ECF No. 148-12.) David weighed 151 pounds at the time of his
death. In a report dated August 21, 2014, Dr. Piettangelo determined that the cause
22
of David’s death was acute withdrawal from chronic benzodiazepine, methadone,
and opiate medications. (Id. at 2, Pg ID 4320.) Dr. Piettangelo’s final diagnosis of
David’s condition was: “Acute Withdrawal from Chronic Benzodiazepine,
Methadone and Opiate Medications[,] Dehydration with hypernatremia[, and]
Seizure/Seizure-like activity.” (Id.)
III.
Applicable Law
A.
42 U.S.C. § 1983 Generally
Plaintiff asserts § 1983 claims against Defendants for the violation of
David’s rights under the Eighth and Fourteenth Amendments. Specifically,
Plaintiff alleges that Defendants were deliberately indifferent to David’s serious
medical needs.
“Section 1983 establishes ‘a cause of action for deprivation under color of
state law, of any rights, privileges or immunities secured by the Constitution or
laws of the United States.’” Jones v. Muskegon Cty., 625 F.3d 935, 940-41 (6th
Cir. 2010) (quoting Horn v. Madison Cty. Fiscal Court, 22 F.3d 653, 656 (6th Cir.
1994)). A plaintiff asserting a § 1983 claim must show: “(1) the deprivation of a
right secured by the Constitution or laws of the United States (2) caused by a
person acting under color of state law.” Sigley v. City of Parma Heights, 437 F.3d
527, 533 (6th Cir. 2006)). The Macomb County Defendants are undoubtedly state
actors. The CCS Defendants, who were providing services to Macomb County Jail
23
inmates under a contract with the county, are deemed to be acting under color of
state law for purposes of § 1983, as well. West v. Atkins, 487 U.S. 42 (1988).
B.
Qualified Immunity
Qualified immunity protects state actors sued under § 1983 from damages
liability “insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Pearson v.
Callahan, 555 U.S. 223, 231 (2009) (quotation marks omitted). The determination
of whether a government official is entitled to qualified immunity is a two-step
inquiry: “First, viewing the facts in the light most favorable to the plaintiff, has the
plaintiff shown that a constitutional violation has occurred? Second, was the right
clearly established at the time of the violation?” Miller v. Sanilac Cty., 606 F.3d
240, 247 (6th Cir. 2010) (internal quotation marks and citations omitted).
As early as 1972, the Sixth Circuit recognized that “‘where the
circumstances are clearly sufficient to indicate the need of medical attention for
injury or illness, [a state actor’s] denial of such aid constitutes the deprivation of
constitutional due process.’” Estate of Carter v. City of Detroit, 408 F.3d 305, 313
(6th Cir. 2005) (quoting Fitzke v Shappell, 468 F.2d 1072, 1076 (6th Cir. 1972)).
C.
Deliberate Indifference
The Eighth Amendment “forbids prison officials from ‘unnecessarily and
wantonly inflicting pain’ on an inmate by acting with ‘deliberate indifference’
24
toward his serious medical needs.” Blackmore v. Kalamazoo Cty., 390 F.3d 890,
895 (6th Cir. 2004) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). An
Eighth Amendment deliberate indifference claim has two components—one
subjective and one objective. Id.
To satisfy the objective component, the plaintiff must demonstrate “the
existence of a ‘sufficiently serious’ medical need.” Jones, 625 F.3d at 941
(quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citations omitted)). A
sufficiently serious medical need 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.’” Id. (quoting Harrison v.
Ash, 539 F.3d 510, 518 (6th Cir. 2008)).
The subjective component requires proof “that the official being sued
subjectively perceived facts from which to infer substantial risk to the prisoner,
that he [or she] did in fact draw the inference, and that he [or she] then disregarded
the risk.” Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001) (citing Farmer,
511 U.S. at 837). The Supreme Court has advised that “‘an official’s failure to
alleviate a significant risk that he should have perceived but did not, while no
cause for commendation, cannot under [the Supreme Court’s] cases be condemned
as the infliction of punishment.’” Id. (emphasis in original) (quoting Farmer, 511
U.S. at 838). However, the Court also has warned that a prison official may “not
25
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.” Farmer, 511 U.S. at 843 n.8.
“Officials, of course, do not readily admit this subjective component, so ‘it is
permissible for reviewing courts to infer from circumstantial evidence that a prison
official had the requisite knowledge.’” Preyor v. City of Ferndale, 248 F. App’x
636, 642 (6th Cir. 2007) (unpublished) (brackets omitted) (quoting Comstock, 273
F.3d at 703). “A genuine issue of material fact as to deliberate indifference can be
based on a strong showing on the objective component.” Estate of Carter, 408
F.3d at 313. “‘[A] factfinder may conclude that a prison official knew of a
substantial risk from the very fact that the risk was obvious[.]’” Preyor, 248 F.
App’x at 643-44 (quoting Farmer, 511 U.S. at 842).
D.
Supervisory Liability
“Government officials may not be held liable for the unconstitutional
conduct of their subordinates under the theory of respondeat superior.” Ashcroft v.
Iqbal, 556 U.S. 662, 676 (2009). “[S]upervisory liability requires some ‘active
unconstitutional behavior’ on the part of the supervisor.” Peatross v. City of
Memphis, 818 F.3d 233, 241 (6th Cir. 2016) (quoting Bass v. Robinson, 167 F.3d
1041, 1048 (6th Cir. 1999)). This does not mean that the supervisor had to “have
physically put his [or her] hands on the injured party or even physically been
26
present at the time of the constitutional violation.” Id. Supervisory liability may
attach where the supervisor “‘encouraged the specific incident of misconduct’” or
“‘implicitly authorized, approved, or knowingly acquiesced in the unconstitutional
conduct of the offending offic[ial]s.’” Shehee v. Luttrell, 199 F.3d 295, 300 (1999)
(quoting Hays v. Jefferson Cty., 668 F.2d 869, 874 (6th Cir. 1982)).
Where a supervisor also is a policymaker, care must be taken to distinguish
an individual-capacity claim against the supervisor and an official-capacity or
municipal claim, as they turn on two different legal principles. See Essex v.
County of Livingston, 518 F. App’x 351, 355 (6th Cir. 2013) (unpublished) (citing
cases explaining the distinction).
E.
Municipal or Official-Capacity Liability
Suits against state officials in their official capacities “‘generally represent
only another way of pleading an action against an entity of which an officer is an
agent.’” Kentucky v. Graham, 473 U.S. 159, 165 (1985) (quoting Monell v. New
York City Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55 (1978)). As such, suits
against state officials in their official capacities are treated as suits against the
State. Id. at 166. Unlike individual liability claims, official capacity or municipal
liability claims do not require direct participation in or encouragement of the
unconstitutional conduct and such claims may be based on a failure to act.
Heyerman v. County of Calhoun, 680 F.3d 642, 648 (6th Cir. 2012).
27
Municipal or official-capacity liability may arise where the “moving force”
behind the alleged injury, Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S.
397, 404 (1997), is “(1) the municipality’s legislative enactments or official
policies; (2) actions taken by officials with final decision-making authority; (3) a
policy of inadequate training or supervision; or (4) a custom of tolerance or
acquiescence of federal violations.” Baynes v. Cleland, 799 F.3d 600, 621 (6th
Cir. 2015). To find a municipality liable, there must be “a direct causal link
between the custom and the constitutional deprivation; that is, [the plaintiff] must
show that the particular injury was incurred because of the execution of that
policy.” Id. (internal quotation marks and citation omitted). With respect to a
municipality’s “inaction” in the face of federal violations (that is, the latter two
bases above), the plaintiff must show the following:
(1) a clear and persistent pattern of unconstitutional conduct by
[municipal] employees; (2) the municipality’s notice or constructive
notice of the unconstitutional conduct; (3) the municipality’s tacit
approval of the unconstitutional conduct, such that its deliberate
indifference in its failure to act can be said to amount to an official
policy of inaction; and (4) that the policy of inaction was the moving
force of the constitutional deprivation….
Winkler v. Madison Cty., 893 F.3d 877, 902 (6th Cir. 2018) (quoting D’Ambrosio
v. Marino, 747 F.3d 378, 387-88 (6th Cir. 2014)) (additional quotation marks,
citation, and brackets omitted). Alternatively, the plaintiff could show “that the
constitutional violation alleged was a patently obvious and ‘highly predictable
28
consequence’ of inadequate training.” Essex, 518 F. App’x at 356 (quoting Bryan
Cty., 520 U.S. at 409).
IV.
Analysis
A.
Objective Component
The cause of David’s death was acute withdrawal from chronic
benzodiazepine, methadone, and opiate medications. David reported taking
methadone, Xanax, Klonopin, and oxycodones days before his incarceration. As
the Sixth Circuit Court of Appeals has observed: “Courts have found withdrawal
symptoms to qualify as a serious medical need.” French v. Daviess Cty., Ky., 376
F. App’x 519, 522 (2010) (unpublished) (Xanax withdrawal) (citing Mayo v.
County of Albany, 357 F. App’x 339, 341-42 (2d Cir. 2009) (unpublished) (heroin
and alcohol withdrawal); Sylvester v. City of Newark, 120 F. App’x 419, 423 (3d
Cir. 2005) (unpublished) (acute drug withdrawal); Foelker v. Outagamie Cty., 394
F.3d 510, 513 (7th Cir. 7005) (methadone withdrawal)).
Plaintiff therefore satisfies the objective prong of her deliberate indifference
claim for purposes of Defendants’ summary judgment motions.
B.
Subjective Component
The Sixth Circuit has instructed that “‘the subjective component of a
deliberate indifference claim must be addressed for each officer individually.’”
Phillips v. Roane Cty., Tenn., 534 F.3d 531, 542 (2008) (quoting Garretson v. City
29
of Madison Heights, 407 F.3d 789, 797 (6th Cir. 2005)). This Court will heed
those instructions, but will discuss some of the defendants together to the extent
they had the same or similar exposure to and/or interactions with David.
1.
CCS Defendants David Arft, Sarah Breen, Thressa
Williams, Linda Parton, and Amber Barber
Plaintiff closes her response brief to the CCS Defendants’ summary
judgment motion stating: “Plaintiff respectfully requests that, except as to the
claims against Defendants David Arft, Sara[h] Breen, Thressa Williams, Linda
Parton, and Amber Barber, that Defendants’ Motion be denied in its entirety.”
(Pls.’ Resp. Br. at 45, ECF No. 158 at Pg ID 4858, emphasis added.) In their reply
brief, the CCS Defendants therefore surmise that Plaintiff explicitly abandoned her
claims against the above-named individuals. (See Reply Br. at 3, ECF No. 170 at
Pg ID 6502.) This in fact appears to be the case as Plaintiff also does not set forth
any arguments for why these individuals should be found to have been deliberately
indifferent to David’s serious medical needs.
The Court therefore is granting summary judgment to Defendants Arft,
Breen, Williams, Parton, and Barber, is dismissing Plaintiff’s claims against them
with prejudice, and is dismissing them as parties to this lawsuit.
2.
CCS Nurse Tiffany DeLuca
Nurse DeLuca’s only interaction with David was on June 11, 2014, when he
first was transferred to the Macomb County Jail. Nurse DeLuca collected intake
30
medical information from David and, upon learning of his prior methadone use,
initiated the COWS protocol.
Plaintiff contends that Nurse DeLuca exhibited deliberate indifference to
David’s serious medical needs by failing to verify his prescription for methadone
and obtain information regarding other medications prescribed to him. Plaintiff
argues that Nurse DeLuca could have easily found this information in the Macomb
County Jail’s records from David’s prior incarcerations. According to Plaintiff, the
treatment and monitoring of David would have significantly changed had Nurse
DeLuca uncovered David’s long-standing psychiatric history of depression,
anxiety, and substance abuse, history of cerebral trauma and seizure, and
prescriptions for Xanax and Klonopin.
The Sixth Circuit recently rejected a similar approach to holding a medical
provider liable in Baker-Schneider v. Napolean, 2019 WL 1748704, -- F. App’x –
(April 16, 2019) (unpublished). As the court explained in that case, the liability of
a defendant medical provider “does not hinge on whether she should have logged
onto her computer to review [the inmate’s medical history].” at *3. Instead, wrote
the court, the focus is the defendant’s “actions given the knowledge she possessed
when she examined [the inmate].” Id. Following the instruction of that ruling, the
Court finds that the record does not reflect anything about David’s condition when
31
Nurse DeLuca conducted her intake examination of him that would have alerted
her to the need to do more to address his medical needs.
The Court therefore is also granting summary judgment to Defendant
DeLuca, dismissing Plaintiff’s claims against her with prejudice, and terminating
her as a party to this lawsuit.
3.
CCS Nurses Vicky Bertram and Mical Bey-Shelley and
Nursing Director Monica Cueny
Nurses Bertram and Bey-Shelley and Nursing Director Cueny interacted
with David on several occasions during his incarceration and, most significantly,
after he completed the initial COWS protocol but nevertheless began exhibiting
withdrawal symptoms.
On June 17, 2014, Nurse Bey-Shelley responded when a deputy called for
medical assistance after finding David “laying on his back on his bunk blinking his
eyes … seem[ingly] unable to speak or move[.]” While Nurse Bey-Shelley took
David to the medical clinic for further observation and assessment by Dr. Sherman
and Dr. Sherman determined no further treatment was needed, Nurse Bey-Shelley,
along with Nurse Bertram, were again called to David’s cell later in the day when a
deputy noticed David hallucinating and talking to people not there. The nurses
reported that David was “‘vaguely’ responsive” and stated “that ‘all his organs,
but 10% of his heart was removed and his arms shreaded [sic] a couple days ago.’”
David also informed the nurses that he was taking Xanax for anxiety and
32
oxycodones for pain. As such, they were made aware that David was at risk for
poly-substance abuse withdrawal. In response, the nurses simply checked David’s
vitals and told him to let corrections and medical staff know if his symptoms
worsened.
At the request of the mental health staff, Nurse Bey-Shelley and Nursing
Director Cueny saw David again during the afternoon of June 18, 2014. During
this visit, David reported that he also had been taking Klonopin for anxiety prior to
his incarceration and had prior psychiatric hospitalization. The nurses again
simply checked David’s vitals, which they reported as normal, encouraged him to
drink water, and instructed him to notify staff of any changes. There is evidence
that Nurse Bey-Shelley and/or Nursing Director Cueny discussed David’s case
with Dr. Sherman, but there is no indication in the record that Dr. Sherman
followed-up and personally assessed David before issuing “no new orders.” (HR
at 394.)
Nursing Director Cueny did not enter information about David’s use of
Klonopin into his medical records until six days later, on June 24. The same
progress note belatedly instructed medical staff to “continue with COW[S]
protocol” (even though it had been terminated on June 15) and to monitor David
for changes, although the evidence reflects that David’s condition significantly
33
worsened after this date with nothing done to help him.12 Moreover, there is no
indication that these nurses ever informed corrections staff or other members of the
medical staff of what they should be looking for with respect to David’s condition.
Under these circumstances, a reasonable jury could find that the response of
these nurses to David’s risk of polysubstance abuse withdrawal was so inadequate
as to be “patently unreasonable.” See Cairelli v. Vakilian, 80 F. App’x 979, 984
(6th Cir. 2003) (unpublished). A reasonably jury could also conclude that reliance
on an individual at risk for polysubstance abuse to self-report his or her worsening
condition constitutes deliberate indifference. These defendants, along with Dr.
Sherman and CCS’ mental health professionals, appear to have concluded early on
that David was feigning or faking his symptoms despite the fact that they were
consistent with the symptoms of benzodiazepine withdrawal identified in CCS’
training materials, see infra, and they were informed that he had been taking two
benzodiazepine medications, as well as other drugs, prior to his incarceration.
Instead of monitoring David to determine whether he was in fact faking his
symptoms, these health care providers ignored him and therefore his worsening
condition leading to his death. See Smith v. Campbell Cty., Ky., No. 16-13-DLBCJS, 2019 WL 1338895 (E.D. Ky. Mar. 25, 2019) (unpublished) (finding issue for
Nurse Bey-Shelley visited David again on June 21, 2014 at 1:59 p.m., although
there are no notes in the medical records reflecting what she did, if anything, to
check on his condition.
34
12
jury as to whether medical staff’s belief that that pretrial detainee was malingering
in the face of his worsening condition constituted deliberate indifference); see also
Brookes v. Shank, 660 F. App’x 465, 469 (6th Cir. 2016) (unpublished) (holding
that “there is at the very least a question of fact” as to whether a doctor who
withheld treatment for an inmate “was actually motivated by a sincere concern that
[the inmate] was a drug seeker”); Greeno v. Daley, 414 F.3d 645, 655 (7th Cir.
2005) (“The possibility that [the defendants] did not do more for [the plaintiff]
because they thought he was malingering and did not really have a severe medical
need is an issue for the jury.”).
For these reasons, the Court is denying summary judgment to Defendants
Cueny, Bey-Shelley, and Bertram.13
4.
CCS Medical Director Lawrence Sherman
Like the nurses above, Dr. Sherman saw David after he completed the
COWS protocol and exhibited symptoms consistent with benzodiazepine
withdrawal. When David was first brought to Dr. Sherman’s attention on June 17,
Plaintiff alleges that Nurse Cueny is liable under § 1983 based on her direct
involvement with David and her official role supervising the nursing staff as
CCS’s Acting Director of Nursing during the relevant period. With respect to the
latter, Plaintiff alleges that Nurse Cueny failed to properly train and supervise the
nursing staff. To the extent Plaintiff asserts that CCS, at Nurse Cueny’s direction,
maintained a general practice of inadequately training and/or supervising the
nursing staff, this is a claim against CCS. See Phillips v. Roane Cty., Tenn., 534
F.3d 531, 543-44 (6th Cir. 2008). Therefore, the Court will address Plaintiff’s
claim based on this theory in the section concerning CCS’ liability.
35
13
2014 “for questionable seizures[,]” Dr. Sherman determined that his symptoms
were “most likely his poor attempt to feign one.” Dr. Sherman’s notes from this
encounter—entered into the system a week late—fail to reflect what, if anything,
Dr. Sherman did to reach this conclusion other than shaking David’s shoulder. Dr.
Sherman appears to have maintained his belief that David was malingering, despite
learning the following day that he had been taking Xanax, oxycodones, and
Klonopin prior to his incarceration and therefore risked polysubstance abuse and
benzodiazepine withdrawal.
While Dr. Sherman testified that he believed the window for David to
experience acute benzodiazepine withdrawal had passed by June 18, a reasonable
jury could conclude that this was patently unreasonable, particularly where Dr.
Sherman made no attempt to determine the dosage of David’s medications or the
length of his past use, his physical evaluation of David was cursory at best, and
David in fact was exhibiting and continued to exhibit signs of withdrawal for days
thereafter until his death.14 Moreover, Dr. Sherman took no further action to
The CCS Defendants cite the decision to have the jail’s psychiatrist, Dr. Haque,
evaluate David as evidence that they were not deliberately indifferent to his serious
medical needs. This decision was not made until the June 24 CARE Team
meeting. A reasonable jury might not find this evidence persuasive, particularly
where it came after the mental health staff had been reporting for more than a week
that its professionals were unable to assess David and when, at the same time,
medical and mental health staff were doing little (or nothing) to assess David’s
(Cont’d . . .)
36
14
confirm that David was not in fact experiencing the life-threatening symptoms that
CCS’ own literature warns can arise if an inmate is removed from a
benzodiazepine medication cold-turkey.
The Court therefore is denying summary judgment to Dr. Sherman.15
5.
CCS Mental Health Professional Chantalle Brock
Mental Health Professional Brock (“MHP Brock”) was responsible for
assessing inmates placed on suicide watch and responding to reports of inmate
mental health issues. (Brock Dep. at 11, ECF No. 158-12.) She was the mental
health professional tasked with assessing David on June 18, 2014, after a deputy
placed him on high-observation green status after finding him in his cell
hallucinating and talking to people not there.
MHP Brock visited David at 2:15 p.m. on June 18, 2014, and found him
lying on the lower bunk “with rapid eye movement.” MHP Brock reported that she
was unable to assess David because “[patient] refused to engage” but she did
nothing to determine if David voluntarily chose not to respond to her or was
incapable of doing so. (Id. at 58-60, ECF No. 158-12 at Pg ID 5090.) MHP Brock
worsening physical and mental condition as reflected in the videotape of him in his
cell.
15
Plaintiff also is suing Dr. Sherman in his official capacity as CCS’ Medical
Director at the Macomb County Jail, alleging that he failed to properly train and
supervise the medical staff. This is a claim against CCS. See Phillips, 534 F.3d at
543-44 (6th Cir. 2008). The Court will address Plaintiff’s claim against CCS based
on this theory separately.
37
acknowledged during her deposition that she did not know if David was in a state
of unreality or psychosis and incapable of understanding what she was saying to
him when she visited him. (Id.) MHP Brock never entered David’s cell on this
occasion or on the four subsequent occasions when she was tasked with assessing
his status.
In her notes from this visit, MHP Brock wrote that she consulted with
nursing staff to assess David “for detox or medical condition” and she testified at
her deposition that she spoke with Nurse Cueny “about medical doing an
assessment[.]” (Id. at 84, Pg ID 5096.) There is no evidence, however, of anyone
on the medical staff conducting such an assessment and MHP Brock acknowledged
that she never checked the nursing progress notes to confirm that an assessment
had been done. (Id. at 70-72, Pg ID 5093.) MHP Brock testified that it is “very
rare” for her to look at the medical notes for an inmate. (Id. at 71, Pg ID 5094.)
When MHP Brock visited David at 9:35 a.m. on June 21, 2014, she found
him lying naked on the floor with rapid eye movement and reported that he
refused to engage with her despite “collateral information that [he] fully engaged
with nursing staff prior to [her] visit.” The Mental Health Log Book reflects that a
nurse was in the unit at 9:00 a.m., but there is no evidence that any nurse visited
David specifically at that time. At her deposition in this matter, MHP Brock
38
testified that she received this “collateral information” from one of the guards,
although she could not name which guard it was. (Id. at 102, Pg ID 5101.)
In the assessment MHP Brock completed on June 21, she wrote that she
“suspects [David] is exaggerating [symptom]s for secondary gain[.]” When asked
at her deposition why she wrote this, MHP Brock testified that David did speak
with her that day, asking if he would be receiving medication from the facility.
(Id. at 106, Pg ID 5102.) MHP Brock further testified that when she told David
that mental health medication had not been ordered, he then refused to engage with
her. (Id.) MHP Brock acknowledged at her deposition that she never inquired of
David or investigated further to determine what medications he believed he should
be receiving. (Id. at 111, Pg ID 5103.)
MHP Brock was responsible for assessing David again on June 22, 24, and
27, 2014. On each occasion, she reported that David “refused” to engage and that
she therefore was “unable” to assess him. MHP Brock also restated her suspicion
that David was feigning his symptoms. David’s withdrawal symptoms and
deteriorating condition as reflected on the continuous video monitoring of his cell
should have been obvious to MHP Brock on the occasions when she visited him.
Most notably, she “assessed” David at 10:40 a.m. on June 27, just hours before he
died.
39
MHP Brock acknowledged during her deposition that David’s behavior was
“different” on June 27, and she claimed that she therefore decided to refer him to a
psychiatrist. (Id. at 139-40, Pg ID 5110.) MHP Brock did not make note of any
changes to David’s behavior in her assessment notes, however. Nor did she record
her plan to refer him to a psychiatrist. (See MC 370.) Instead, she continued to
check only the box to “Continue watch – daily follow up.” (Id.) In any event, a
reasonable jury could find that MHP Brock’s response was too little and too late.
According to the CCS Defendants, the evidence does not suggest that MHP
Brock perceived David to be suffering from anything other than a risk of selfharm. The videotape evidence, however, reflects that David was experiencing
symptoms that even the deputy defendants recognized to be typical symptoms of
drug withdrawal. MHP Brock recorded her observation of some of these
symptoms in her notes. As the Sixth Circuit has advised, subjective knowledge
can be found “based on the obviousness of the risk.” Bertl v. City of Westland, No.
07-2547, 2009 WL 247907, at *5 (6th Cir. Feb. 2, 2009) (unpublished) (citing
Farmer, 511 U.S. at 842); see also Estate of Carter, 408 F.3d at 312 (finding a
question of fact regarding the defendant’s subjective knowledge of an arrestee’s
serious medical needs where the arrestee was exhibiting “the ‘classic’ signs of a
serious illness,” despite the defendant’s claim that he did not actually believe the
arrestee was ill).
40
For these reasons, a reasonable jury could find MHP Brock deliberately
indifferent to David’s serious medical needs and thus the Court is denying
summary judgment to her.
6.
CCS Mental Health Professionals Nelson and Mann and
CCS Mental Health Director Natalie Pacitto
In response to the CCS Defendants’ summary judgment motion, Plaintiff
discusses the individual liability of Mental Health Professionals Danyelle Nelson
and Kelly Mann and CCS Mental Health Director Natalie Pacitto. (Pl.’s Resp. at
22-31, ECF No. 158 at Pg ID 4835-4845.)
Plaintiff identified Nelson and Mann as defendants in her initial complaint
and in the amended pleading she filed on June 1, 2015. (See ECF Nos. 1, 9.)
Because Plaintiff failed to set forth facts in her Amended Complaint establishing
the personal involvement of these individuals with regard to David’s care, the
Court dismissed Plaintiff’s claims against them on November 9, 2015. (See Op. &
Order, ECF No. 42.) While the Court informed Plaintiff that she could move to rename these individuals if, through discovery, she uncovered evidence that they
were aware of and were deliberately indifferent to David’s serious medical needs
(id. at 19 n.6, ECF No. 42 at Pg ID 898), Plaintiff never did so. Plaintiff did
subsequently move and was granted leave to file her Second Amended Complaint,
but Danyelle Nelson and Kelly Mann were not among the individuals she
41
identified as the defendants she wished to add. (See Mot. ¶ 5, ECF No. 70 at Pg ID
1231; see also Order at 3, ECF No. 99 at Pg ID 2140.)
Plaintiff did move and was granted leave to add CCS Mental Health Director
Pacitto as a defendant in her Second Amended Complaint. (Id.) However,
Plaintiff indicated to the Court and Defendants that her claim against Mental
Health Director Pacitto “related to [her] supervisory and/or policy-making role[]s
….” (Id.) In fact, in response to the CCS Defendants’ summary judgment motion,
Plaintiff identifies her claim against Pacitto as a basis for Monell liability, only.
(See Pl.’s Resp. Br. at 39-43, ECF No. 158 at Pg ID 4852-56.)
A suit against a municipal employee in his or her official capacity “is …
essentially and for all purposes, a suit against the [municipality] itself.” Leach v.
Shelby Cty., 891 F.2d 1241, 1245-46 (6th Cir. 1989); see also Kentucky v. Graham,
473 U.S. 159, 165-66 (1985) (“Official-capacity suits[ ] ‘generally represent only
another way of pleading an action against an entity of which an officer is an
agent.’”) (quoting Monell, 436 U.S. at 690, n.55). As such, where a plaintiff brings
a Monell claim against a municipal employee in his or her official capacity and
also names the municipality as a defendant, courts routinely dismiss the employee
as a party to the lawsuit because naming both is “redundant.” See Foster v.
Michigan, 573 F. App’x 377, 390 (6th Cir. 2014) (unpublished) (“where the entity
is named as a defendant, an official-capacity claim is redundant”); Faith Baptist
42
Church v. Waterford Twp., 522 F. App’x 332, 327 (6th Cir. 2013) (unpublished)
(“Having sued Waterford Township, the entity for which Bedell was an agent, the
suit against Bedell in his official capacity was superfluous.”).
For these reasons, the Court is dismissing Defendant Pacitto as a party. As
indicated, Plaintiff’s claims against Defendants Nelson and Mann were dismissed
in 2015, and they have been long-absent from this action.
7.
CCS
While Plaintiff acknowledges that CCS prepared policies and training
materials with respect to inmates experiencing benzodiazepine withdrawal
symptoms (see, e.g., Pl.’s Resp. Br. to CCS Defs.’ MSJ at 2, ECF No. 158 at
4815), she argues that its medical and mental health staff were not properly trained
to monitor and respond to inmates, like David, experiencing benzodiazepine
withdrawal. Plaintiff does not provide evidence of a previous Macomb County Jail
inmate dying or suffering other serious harm as a result of this alleged inadequate
training of CCS’ staff.16 As such, Plaintiff must fit her claim within that “‘narrow
In her response brief, Plaintiff discusses at length the June 2013 death from acute
sepsis of Macomb County Jail inmate Jennifer Meyers. However, at the time of
David’s incarceration a year later, there had been no finding of unconstitutional
conduct in connection with Ms. Meyers’ death to put CCS on notice that its
training was deficient. See Hubble v. County of Macomb, No. 2:16-cv-13504,
2019 WL 1778862, at *1 (E.D. Mich. April 23, 2019) (unpublished). Judge
Borman in fact has granted summary judgment to the defendants on the deliberate
indifference claims brought by Ms. Meyers’ estate. Id. As such, there has been no
(Cont’d . . .)
43
16
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 v. Hopkins Cty., Ky., 805 F.3d 724, 739
(6th Cir. 2015) (quoting Bryan Cty, 520 U.S. at 409).
The evidence reflects that many individuals incarcerated at the Macomb
County Jail used medications, including benzodiazepines (e.g. Xanax and
Klonopin) and opiates (e.g. oxycodone), before their incarceration and therefore
are likely to experience withdrawal while in jail. (See Pl.’s Resp. to CCS Defs.’
Mot. Ex 4 at 3, ECF No. 158-4 at Pg ID 4882) (“Withdrawal and detoxication from
opiates are common problems in the jail intake population.”). As such, CCS
instituted several policies designed to identify inmates at risk of serious withdrawal
symptoms, detect and monitor the symptoms, and provide medical and mental
health care to those inmates. (See, e.g., id. Exs. 3-4, ECF Nos. 158-3, 158-4.)
Those training materials state that benzodiazepine withdrawal “is a potentially lifethreatening condition!”17 occurring “when someone who has been taking this type
of medication for a long period of time abruptly stops taking the medication.” (Id.
Ex. 3 at 0694, ECF No. 158-3 at Pg ID 4865.) The materials advise that the
determination that anyone in the Macomb County Jail engaged in unconstitutional
conduct in connection with Ms. Meyers.
17
In fact, under this statement is a picture of the Grim Reaper. (See Pl.’s Resp. to
CCS Defs.’ Mot. Ex. 3 at 0696, ECF No. 158-3 at Pg ID 4867.)
44
symptoms of withdrawal include nausea and vomiting, shaking, agitation/anxiety,
hallucinations, headaches, disorientation, and unusual sensations. (Id.)
CCS’ training materials list information that should be obtained from
patients using benzodiazepines, including a history of their benzodiazepine use
(i.e., what kind of medications they are taking, how much, and the last dose), a
history of their abuse or dependence on other drugs, and a history of other serious
medical conditions they may have. (Id. at 0698, Pg ID 4869.) CCS instructs that
withdrawal should be managed by “[p]roviding a benzodiazepine (i.e. Librium)
based on a fixed dose pattern” and “[m]onitor[ing] patient[s] closely” using the
Clinical Institute Withdrawal Assessment Scale for Alcohol, Revised (“CIWAAr”). (Id. at 0700, Pg ID 4871, emphasis added.) CCS’ materials further instruct
that Librium “should ideally be started in the intake/booking area BEFORE any
symptoms are present!!” (Id. at 0702, Pg ID 4873, emphasis in original.) Abrupt
or overly rapid dosage reduction of a benzodiazepine medication can provoke lifethreatening withdrawal symptoms. (See Fillman Report at 3, ECF No. 158-11 at
Pg ID 5047.) CCS has prepared a form to monitor inmates withdrawing from
benzodiazepines. (See Pl.’s Resp. to CCS Defs.’ Mot. Ex. 4 at 22-23, ECF No.
158-4 at Pg ID 4901-02.)
CCS has prepared a “Nursing Pathway” addressing opiate withdrawal. (Id.
Ex. 4 at 3-6, ECF No. 158-4 at Pg ID 4881-85.) The Nursing Pathway warns that
45
the symptoms “are uncomfortable and disturbing, but not usually life-threatening –
except for persons who are clinically fragile or pregnant.” (Id. Ex. 4 at 3, ECF No.
158-4 at Pg ID 4882, emphasis in original.) The Nursing Pathway describes such
circumstances as including “[i]nmates with a history of … seizures” and “[i]nmates
with psychiatric disorders[.]” Id. The opiate withdrawal Nursing Pathway also
warns that “[p]ersons with severe addictions often neglect their nutrition.” Id. at 4,
Pg ID 4883. Thus nurses are instructed to “[m]ake a gross determination of
nutritional status[.]” Id.
CCS, however, failed to train and supervise its medical and mental health
staff to respond to inmates who were using benzodiazepines and opiates prior to
their incarceration and thus face the risk of experiencing severe and lifethreatening withdrawal symptoms in jail. In this Court’s view, the complete failure
of CCS’ medical and mental health staff to adhere to standing protocols in their
handling of David’s condition creates a genuine issue of material fact with regard
to a lack of proper training and supervision. Moreover, Mental Health
Professionals Brock and Nelson testified that they never received any training on
withdrawal from drugs in general or benzodiazepines in particular. (Brock Dep. at
153, Nelson Dep. at 173.) Brock further testified that she was not trained
regarding the function that nutrition has with respect to mental health and she did
not know if there was a connection between the two. (Brock Dep. at 127-29.)
46
Similarly, Nelson testified that she was not trained to observe inmates’ weight or
their food and water consumption. (Id. at 86.)
The failure to train the medical and mental health staff to monitor the food
and water consumption of inmates going through withdrawal is evident from the
testimony of CCS’ Medical Director at the jail, Dr. Sherman, who testified that
CCS medical personnel “completely rely” upon custodial staff to do this.18
(Sherman Dep. at 191.) Yet, Dr. Sherman did not know how or even if custodial
staff had been trained in this area. (Id. at 188-89.) Further, when Plaintiff’s
counsel asked the individual defendants about their duty to monitor the food and/or
water consumption of inmates, they acknowledged a duty to do so only for inmates
engaged in a hunger strike.19
For these reasons, the Court is denying summary judgment to CCS.
8.
Macomb County Corrections Deputies Brian Avery, Paul
Harrison, Morgan Cooney, John Talos, Brian Pingilley,
Steven Vaneenoo, and Walter Oxley
Defendants contend that no clearly established federal law requires prison staff to
monitor the consumption of food and/or water by inmates. The Court believes that
this mis-characterizes the issue, however. As stated earlier in this decision, it is
well-established that the denial of needed medical attention for a serious health risk
constitutes deliberate indifference. See Estate of Carter, 408 F.3d at 313 (quoting
Fitzke, 468 F.2d at 1076). Thus, if prison employees are aware that inmates
experiencing drug withdrawal are likely to not eat and/or hydrate themselves and
that this could pose a serious health risk to them, the Court finds it well established
that failing to monitor their food and/or water consumption constitutes deliberate
indifference.
19
Admittedly, as Defendants point out, starvation was not identified as a cause of
David’s death. Dehydration was, however.
47
18
Deputies Avery, Harrison, Cooney, Talos, Pingilley, Vaneenoo, and Oxley
were each on duty in the mental health unit for numerous shifts (5-8) while David
was housed in one of the unit’s cells. Most significantly, these shifts included
several days immediately before David died and, except for Deputy Cooney, the
date of his death. These deputies were responsible for monitoring the video feed
from David’s cell and/or making routine rounds to check on the inmates in the unit.
They were aware that David was exhibiting symptoms associated with drug
withdrawal. (See Avery Dep. at 52-53, Oxley Dep. at 21-22, Vaneenoo Dep. at 24;
Harrison Dep. at Cooney Dep. at 27-28; Talos Dep. at 49-50, Pingilley Dep. at 2021.) The video from David’s incarceration in the mental health unit reflects that
his condition was deteriorating over this time-period and that he was exhibiting
classic symptoms of drug withdrawal, including hallucinations, sweating, seizurelike activity, and lethargy.
Based on this evidence, a reasonable jury could conclude that these deputies
were subjectively aware of David’s serious medical needs.20 See Estate of Carter,
The CCS Defendants argue that the deputies believed they were monitoring
David for suicidal behavior and thus “it is this limited knowledge against which
[their actions] should be measured.” (CCS Defs.’ Reply Br. at 7, ECF No. 171 at
Pg ID 6529.) The Court does not agree where David was exhibiting signs of a
different serious illness that even laypersons could be expected to identify. If an
inmate on suicide watch shows the warning signs of an impending heart attack or
cuts him- or herself and begins bleeding profusely, jail staff certainly cannot ignore
(Cont’d . . .)
48
20
408 F.3d at 312; Preyor, 248 F. App’x at 636. Undoubtedly, there were occasions
when the deputies called the jail’s medical staff to attend to David. Nevertheless,
they did not summon medical staff at any point on June 26 or 27 and no member of
the jail’s medical staff checked on David on either of those dates. In fact, aside
from a thirty second visit by a nurse on June 25, David had not been physically
checked by a nurse or doctor since June 23, 2014.
The Macomb County Defendants argue that the deputies are entitled to
summary judgment because they called medical and/or mental health personnel to
address David’s needs, the medical staff told them David was medically cleared,
and the deputies knew that medical and/or mental health staff were in the unit
every day during David’s incarceration. The Sixth Circuit has held that, in general,
non-medical prison staff will not be found to have acted with subjective deliberate
indifference where a prisoner is under the care of medical experts. See, e.g.,
McGaw v. Sevier Cty., Tenn., 715 F. App’x 495 (6th Cir. 2017) (unpublished)
(concluding that jail officers did not act with deliberate indifference when they left
jail detainee in observation cell and provided no additional care for alcohol and
opiate use based on licensed practical nurse’s examination and recommendation to
leave the detainee in the cell overnight for monitoring); see also Spruill v. Gillis,
those signs and escape liability because they were tasked with preventing the
inmate’s suicide.
49
372 F.3d 218, 236 (3d Cir. 2004) (“If 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.”); Griffith v. Franklin Cty., Ky., No. 3:16-cv00077, 2019 WL 1387691 (E.D. Ky. Mar. 27, 2019) (unpublished) (granting
summary judgment to jail officers, finding that they were not deliberately
indifferent to pretrial detainee who experienced withdrawal symptoms but had
been placed on medical observation, had been evaluated by medical staff in more
than a cursory way, and his condition had not declined).
Nevertheless, the Sixth Circuit has not foreclosed the possibility of finding
non-medical staff liable whenever medical staff has attended to an inmate. As the
McGaw court stated, to avoid liability, the non-medically trained officer must have
“‘reasonably deferred to the medical professionals’ opinions.’” 715 F. App’x at
498 (emphasis added) (quoting Johnson v. Doughty, 433 F.3d 1001, 1010 (7th Cir.
2006)); see also Spruill, 372 F.3d at 236 (“[A]bsent a reason to believe (or actual
knowledge) that prison doctors or their assistants are mistreating (or not treating) a
prisoner, a non-medical prison official … will not be chargeable with … deliberate
indifference.”) (emphasis added); Colson v. City of Alcoa, Tenn., No. 3:16-cv-377,
2018 WL 1512946 (E.D. Tenn. Mar. 26, 2018) (unpublished) (denying summary
judgment to officer, finding a question of fact for the jury where the officer had
reason to believe that a nurse’s assessment of the plaintiff’s condition was not
50
reliable). Under the circumstances of this case, a reasonable jury could find that
Deputies Avery, Harrison, Cooney, Talos, Pingilley, Vaneenoo, and Oxley did not
reasonably defer to the jail’s medical staff.
As mentioned earlier, no member of the jail’s medical staff checked on
David on June 26 or 27. Aside from a thirty second visit by a nurse on June 25,
David had not been physically examined by a nurse or doctor since June 23, 2014.
When nursing staff did visit David’s cell, the examination could be described as
cursory, at best. The record reflects that David lost approximately forty pounds
during his incarceration. 21 As the videotape evidence shows, despite whatever
treatment David was receiving (which a reasonable jury could determine was no
treatment at all), he continued to experience what appeared to be tremors,
hallucinations, and seizure-like activity during the eleven days he was under the
watch of these deputy defendants. Moreover, a reasonable juror viewing the
videotape of David could conclude that his physical and mental health were
significantly deteriorating despite any treatment he was receiving from medical
and mental health staff. Tellingly, during his deposition in this matter, Deputy
According to Defendants, David’s weight was auto-populated from his prior
incarceration records and they therefore appear to be challenging whether he in fact
weighed 195 pounds at intake. (See CCS Defs.’ Mot. Ex. L at 13, ECF No. 148-13
at Pg ID 4341.) Defendants present no contrary evidence regarding David’s
weight, however. Moreover, on summary judgment, the Court must view the facts
in the light most favorable to Plaintiff. Liberty Lobby, 477 U.S. at 255.
51
21
Oxley admitted that he was disturbed when he saw a portion of the video capturing
David during his incarceration on the news after his death. (Oxley Dep. at 49, ECF
No. 162-11 at Pg ID 5615.) When asked why, Deputy Oxley responded: “Just to
see, knowing this person was actually going through a lot of pain.” (Id.)
For these reasons, the Court is denying summary judgment to Macomb
County Corrections Deputies Brian Avery, Paul Harrison, Morgan Cooney, John
Talos, Brian Pingilley, Steven Vaneenoo, and Walter Oxley.
9.
Macomb County Corrections Deputies Keith Ray, David
White, Mitchell Blount, and Larry (James) Helhowski
In comparison to the defendants discussed in the preceding section, Deputies
Ray, White, Blount, and Helhowski had minimal contact with David during his
incarceration. Deputies Ray and Blount were on duty for a single midnight shift
(10:30 p.m. to 6:45 a.m.) between June 26 and 27, 2014. (See CCS Defs.’ Mot.
Ex. G, ECF No. 148-8.) Deputy Helhowski was on duty for a single afternoon
shift (2:45 p.m. to 10:30 p.m.) on June 26, 2014. (Id.) Deputy White covered the
day shifts (6:45 a.m. to 2:45 p.m.) on June 25 and 26, 2014. (Id.)
Having watched the videotape of David during these shifts, the Court does
not believe that a reasonable jury could find Deputies Ray, White, Blount, or
52
Helhowski deliberately indifferent to his serious medical needs.22 These deputies
were unaware of David’s previous condition and thus would not have recognized
his deterioration. They would not have known that David had consumed little food
or water and had been experiencing withdrawal symptoms for days. Notably,
Deputies White, Blount, and Helhowski worked as runners during their shifts, so
they were not responsible for continuously watching David via the video feed.
Further, David was lying down and appeared to be sleeping for the majority of the
time these deputies were on duty. This would not have appeared unusual during
the midnight shift that Deputies Ray and Blount worked.
Accordingly, the Court is granting summary judgment to Macomb County
Corrections Deputies Keith Ray, David White, Mitchell Blount, and Larry (James)
Helhowski, is dismissing Plaintiff’s claims against them with prejudice, and
terminating them as parties to this lawsuit.
10.
Macomb County Sheriff Anthony Wickersham
Plaintiff is suing Sheriff Wickersham in his individual and official
capacities. With respect to the former, Sheriff Wickersham seeks summary
judgment because he had no personal involvement with David and because, he
22
The Court would have reached a different conclusion, notwithstanding
these deputies worked only one or two shifts, if those shifts had been during the
day or afternoon on June 27, 2017—a period during which the videotape reflects
what could be viewed as alarming changes in David’s condition.
53
contends, there is no evidence that he “‘authorized, approved, or knowingly
acquiesced in [any] unconstitutional conduct’” concerning David. See Coley v.
Lucas Cty., Ohio, 799 F.3d 530, 542 (6th Cir. 2015) (quoting Taylor v. Mich. Dep’t
of Corrs., 69 F.3d 76, 81 (6th Cir. 1995)) (emphasis, additional quotation marks,
and citation removed).
Plaintiff’s allegations concerning Sheriff Wickersham relate to his conduct
after the 2013 death of another Macomb County Jail inmate, Jennifer Meyers, and
David’s death and his alleged failure to train the jail staff. Plaintiff does not claim
that Sheriff Wickersham had actual knowledge of David or his condition until after
his death. Plaintiff also does not claim that Sheriff Wickersham took any specific
action to authorize, approve, or knowingly acquiesce in the alleged
unconstitutional treatment of David. As such, Plaintiff appears to be “‘improperly
conflat[ing] 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 v. Roane Cty., 534 F.3d 531, 543 (6th Cir. 2008)).
Sheriff Wickersham therefore is entitled to summary judgment to the extent
he is sued in his individual capacity.
11.
Macomb County
Plaintiff asserts a Monell claim against Macomb County and Sheriff
Wickersham and Administrator Sanborn in their official capacities. Finding at
54
least two bases on which a reasonable jury could find in favor of Plaintiff on this
claim, the Court concludes that summary judgment is improper. First, this Court
already has found a genuine issue of material fact with respect to CCS’ failure to
train the jail’s medical staff in connection with inmates exhibiting potentially lifethreatening withdrawal symptoms. “‘[C]ontracting out prison medical care does
not relieve the [municipality] of its constitutional duty to provide adequate medical
treatment to those in its custody[.]’” Leach, 891 F.2d at 1250 (quoting West, 487
U.S. at 56). Accordingly, courts have held that where a municipality delegates the
final authority to make decisions about inmate medical care to a private vendor, the
vendor’s policies or customs become those of the county. See Estate of Walter v.
Corr. Healthcare Co., 323 F. Supp. 3d 1199, 1215-16 (D. Colo. 2018) (citing King
v. Kramer, 680 F.3d 1013, 1020 (7th Cir. 2012)); see also Dunn v. Dunn, 219 F.
Supp. 3d 1100, 1159 (M.D. Ala. 2016) (citing Ancata v. Prison Health Servs., Inc.,
769 F.2d 700 (11th Cir. 1985)).
Walter was a § 1983 action brought by the estate of a pretrial detainee who
died from benzodiazepine withdrawal. The decedent’s medications had been
discontinued pursuant to the “no benzo” policy of the private vendor the county
hired to provide medical care at its detention facility. The estate sued the county,
the healthcare contractor, and several individuals. The district court denied
summary judgment to the county, finding that if the “no benzo” policy was a
55
moving force behind the inmate’s death, the healthcare vendor’s policies where
also the county’s policies.23 323 F. Supp. 3d at 1215-16.
Second, as discussed earlier, Macomb County Jail personnel are likely to
encounter inmates experiencing severe and serious drug withdrawal symptoms,
including potentially life-threatening symptoms from the withdrawal of
benzodiazepine medications. As such, the county’s need to train its jail staff
regarding drug withdrawal, in general, and benzodiazepine withdrawal, in
particular, is obvious. See City of Canton v. Harris, 489 U.S. 378, 390 (1989)
(“[I]t may happen that in light of the duties assigned to specific officers or
employees 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.”). Yet, a reasonable jury could conclude from the evidence
that Macomb County’s training was inadequate.
Plaintiff has named Macomb County as a defendant, as well as Sheriff
Wickersham and Administrator Sanborn in their official capacities. As discussed
above with respect to CCS Mental Health Director Pacitto, a suit against Sheriff
After dispositive motions were filed, a settlement was reached between the
plaintiff and the private vendor defendants (i.e., the vendor and several of its health
care employees). See Notice of Settlement, Estate of Walter, No. 16-cv-00629 (D.
Colo. Oct. 18, 2018), ECF No. 280.
56
23
Wickersham and Administrator Sanborn in their official capacities “is
…essentially and for all purposes, a suit against [Macomb County] itself.” Leach,
891 F.2d at 1245-46. As such, the Court is dismissing Sheriff Wickersham and
Administrator Sanborn in their official capacities and as defendants in this lawsuit.
Macomb County remains.
V.
Conclusion
In summary, the Court finds that Plaintiff demonstrates a genuine issue of
material fact with respect to her deliberate indifference claim against the following
Defendants: Vicky Bertram, Monica Cueny, Mical Bey-Shelley, Lawrence
Sherman, Chantalle Brock, CCS, Brian Avery, Paul Harrison, Morgan Cooney,
John Talos, Brian Pingilley, Steven Vaneenoo, Walter Oxley, and Macomb
County.
In comparison, the Court concludes that the following Defendants are
entitled to summary judgment: Tiffany DeLuca, Keith Ray, David White, Mitchell
Blount, Larry (James) Helhowski, and Anthony Wickersham to the extent he is
sued in his individual capacity. Further, Plaintiff’s claims against Sheriff Anthony
Wickersham and Jail Administrator Michelle Sanborn in their official capacities
are duplicative of Plaintiff’s claims against Macomb County.
In Count III of her Second Amended Complaint, Plaintiff includes a claim
for gross negligence; however, the parties previously stipulated to an order
57
dismissing that claim without prejudice and Plaintiff never sought Defendants’
consent or leave of Court to re-assert that claim. The Court, therefore, is sua
sponte dismissing that claim again without prejudice. The Court also is sua sponte
dismissing the John and Jane Doe defendants still identified as parties to this
action, despite the fact that they are not named in Plaintiff’s currently pending
pleading.
Accordingly,
IT IS ORDERED that Count III of Plaintiff’s Second Amended Complaint
is DISMISSED WITHOUT PREJUDICE;
IT IS FURTHER ORDERED that Defendant Anthony Wickersham’s
Motion for Summary judgment (ECF No. 142) is GRANTED and Plaintiff’s claim
against him in his individual capacity is DISMISSED WITH PREJUDICE.
Because Plaintiff’s claims against Defendants Wickersham and Sanborn in their
official capacities are duplicative of Plaintiff’s claim against Macomb County, the
Court is DISMISSING Defendants Wickersham and Sanborn AS PARTIES to
this lawsuit;
IT IS FURTHER ORDERED that the remaining motions for summary
judgment (ECF Nos. 143, 146, and 148) are GRANTED IN PART AND
DENIED IN PART in that the Court is DISMISSING WITH PREJUDICE
Plaintiff’s claim against the following defendants, only: Tiffany DeLuca, Keith
58
Ray, David White, Mitchell Blount, and Larry (James) Helhowski. These
defendants are DISMISSED AS PARTIES to this lawsuit. The John and Jane
Doe defendants also are DISMISSED AS PARTIES.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: September 30, 2019
59
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