MIlline v. Macomb, County of et al
Filing
134
OPINION AND ORDER Granting in Part and Denying in Part 121 Renewed Motion for Summary Judgment by Defendants Correct Care Solutions, L.L.C. and Temitope Olagbaiye, NP. Signed by District Judge Matthew F. Leitman. (HMon)
Case 4:17-cv-12723-MFL-SDD ECF No. 134, PageID.4428 Filed 08/03/21 Page 1 of 31
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ALVAREZ MILLINE, as Personal
Representative of the ESTATE of
ALVAREZ DEMETRIE MILLINE, Deceased
Plaintiff,
Case No. 17-cv-12723
Hon. Matthew F. Leitman
v.
CORRECTCARE SOLUTIONS, L.L.C. et al.,
Defendants.
__________________________________________________________________/
OPINION AND ORDER GRANTING IN PART AND DENYING
IN PART RENEWED MOTION FOR SUMMARY JUDGMENT BY
DEFENDANTS CORRECT CARE SOLUTIONS, L.L.C. AND
TEMITOPE OLAGBAIYE, NP (ECF No. 121)
On March 7, 2016, Alverez Demetrie Milline (“AD Milline”) tragically died
of a pulmonary embolism while in custody at the Macomb County Jail. In this
action, the personal representative of AD Milline’s estate (“Plaintiff”1), brings
Eighth Amendment deliberate indifference claims and state-law claims against
several health care professionals who treated AD Milline at the jail and against
Correct Care Solutions, L.L.C. (“CCS”), the private company that employed many
of those professionals. The Court previously issued an Opinion and Order in which
1
The Plaintiff is also named Alverez Milline. For ease of reference, the Court will
refer to him as “Plaintiff.”
1
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it (1) granted summary judgment in favor of all Defendants on Plaintiff’s state-law
claims, (2) granted summary judgment in favor of all Defendants other than CCS
and nurse practitioner Temitope Olagbaiye on Plaintiff’s Eighth Amendment
deliberate indifference claims, (3) denied without prejudice summary judgment on
Plaintiff’s Eighth Amendment deliberate indifference claims against CCS and
Olagbaiye, and (4) granted CCS and Olagbaiye leave to file a renewed motion for
summary judgment on Plaintiff’s Eighth Amendment claims. (See Op. and Order,
ECF No. 117.) CCS and Olagbaiye have now filed a renewed motion for summary
judgment on Plaintiff’s Eighth Amendment deliberate indifference claims. (See Ren.
Mot., ECF No. 121.) For the reasons explained below, CCS is entitled to summary
judgment, but Olagbaiye is not. The motion is therefore GRANTED with respect
to CCS but DENIED with respect to Olagbaiye.
I
The Court set forth the factual background of Plaintiff’s claims at length and
in detail in its prior Opinion and Order. (See Op. and Order, ECF No. 117,
PageID.3661-3674.) The Court incorporates that background into this Opinion and
Order and will not repeat the background in depth here.
The essential facts underlying the current motion by CCS and Olagbaiye are
as follows. AD Milline began serving a criminal sentence in the Macomb County
Jail in May 2015. Around that same time, AD Milline informed CCS staff that he
2
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had a history of pulmonary emboli. (See Dep. of Avery Hope, Nurse at the Macomb
County Jail, at 15, ECF No. 95-10, PageID.2739; see also Medical Records, ECF
No. 83, PageID.1647.) CCS staff then scheduled AD Milline for an evaluation by
Olagbaiye so that he (Olagbaiye) could specifically follow up on AD Milline’s
reported history of emboli. (See Medical Records, ECF No. 83, PageID.1497.) That
evaluation was scheduled for May 19, 2015. (See id.) However, AD Milline refused
to be seen by Olagbaiye because AD Milline did not have the funds to pay for the
evaluation. (See id.) Even though Olagbaiye had been informed that AD Milline had
a history of pulmonary emboli, Olagbaiye did not order any of AD Milline’s medical
records in May of 2015. In fact, Olagbaiye never ordered those records. (See
Olagbaiye Dep. at 152-53, ECF No. 95-13, PageID.2816-2817.)
On June 30, 2015, AD Milline complained of chest and/or rib pain, and a CCS
nurse performed an EKG on him. (See Medical Records, ECF No. 83, PageID.1622.)
The nurse then gave the test results to Olagbaiye. (See id.) Olagbaiye determined
that the results were normal, and he prescribed Tylenol for AD Milline. (See id.,
PageID.1609.)
On July 13, Olagbaiye scheduled a sick call visit with AD Milline to evaluate
AD Milline’s multiple complaints of chest pain. (See id., PageID.1605.) That
evaluation took place the next day. (See id.) At the time of the sick call, AD Milline
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reported that he was feeling better, and he declined to be evaluated. (See id.,
PageID.1495.)
On March 1, 2016, AD Milline reported to the jail medical unit complaining
of chest pain. (See id., PageID.1567.) He described a burning sensation with
movement causing increased pain. (See id.) A CCS nurse found his vital signs to be
within normal limits. (See id., PageID.1569-1570.) She also administered an EKG
test, and the results of that test were normal. (See id., PageID.1499.) She then
contacted Olagbaiye to report the findings. (See Dep. of Allison LaFriniere, Nurse
at the Macomb County Jail, at 29, ECF No. 95-20, PageID.2923.) Olagbaiye
prescribed 325 mg of Tylenol three times per day for three days and one 81 mg tablet
of chewable aspirin for 180 days. (See Medical Records, ECF No. 83, PageID.1606.)
He also directed staff to take AD Milline’s temperature twice per day for the next
three days. (See id., PageID.1648.)
On March 4, 2016, at approximately 5:42 p.m., AD Milline returned to the jail
medical unit complaining of chest pain and shortness of breath. (See id.,
PageID.1558-1566.) A CCS nurse measured AD Milline’s heart rate as 111 beats
per minute – an abnormally elevated rate. (See id., PageID.1560.)
She then
administered an EKG test. The result of this test came back abnormal. More
specifically,
the
result
showed
“moderate
right-precordial
repolarization
disturbance” and suggested consideration of “ischemia or LV overload.” (Id.,
4
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PageID.1498.) The result also indicated that AD Milline’s heart rate was 98 beats
per minute, not the 111 beats previously detected by the CCS nurse. (See id.)
The nurse who detected the elevated heart rate and administered the EKG test
then called Olagbaiye to report the results of her examination and of the test. (See
id., PageID.1620; see also Olagbaiye Dep. at 121, ECF No. 95-13, PageID.2809.)
At the time of the nurse’s call, Olagbaiye was “on-call” but was not “in [the] facility”
at the Macomb County Jail. (Olagbaiye Dep. at 120-121, ECF No. 95-13,
PageID.2808-2809.) Instead, Olagbaiye was working off-site at his second job at
the AM Medical Center. (See id. at 35-36, 149, PageID.2787, 2816.) After listening
to the nurse’s report, Olagbaiye concluded that no further action was required at that
time. Olagbaiye directed that AD Milline be brought to the health unit for evaluation
on Monday, March 7 – when Olagbaiye would be back in the unit. (See Medical
Records, ECF No. 83, PageID.1621.) Olagbaiye also directed the nurse to tell AD
Milline to return to the medical unit if his symptoms worsened over the weekend.
(See id.)
When Olagbaiye arrived in the medical unit on the morning of March 7, he
did not immediately summon AD Milline for an evaluation. Olagbaiye explained
that he had “tons and tons of [patients] to review.” (Olagbaiye Dep. at 132-33, ECF
No. 95-13, PageID.2811-2812.) Olagbaiye did not consider AD Milline to be an
5
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immediate priority even though AD Milline had both abnormal EKG and a history
of pulmonary emboli.
At approximately 11:18 a.m. on March 7, AD Milline was brought to the
medical unit complaining of trouble breathing. (See Medical Records, ECF No. 83,
PageID.1612.) He stopped responding to commands and lost consciousness. (See
id.) Olagbaiye then called for an ambulance. (See id.) Staff commenced CPR and
used an automated external defibrillator on AD Milline. (See id.) AD Milline was
then taken to McLaren Hospital where he was pronounced dead. (See id.,
PageID.1611.)
The medical examiner who performed the autopsy on AD Milline determined
that he “died of a pulmonary thromboembolism and that there were thromboemboli
in both lungs that were acute, meaning that they were in the range of, could be hours
to days old, and there were organizing clots, which would be older, possibly in the
range of weeks to months to years old.” (Dep. of Dr. Daniel Spitz at 11-12, ECF No.
82-6, PageID.1309.)
The Court highlights and summarizes other facts below as appropriate and
necessary to the Court’s analysis.
II
The Court applies the well-established summary judgment standard to the
motion by Olagbaiye and CCS. Under that standard, a movant is entitled to summary
6
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judgment when it “shows that there is no genuine dispute as to any material fact.”
SEC v. Sierra Brokerage Servs., Inc., 712 F.3d 321, 326–27 (6th Cir. 2013) (citing
Fed. R. Civ. P. 56(a)). When reviewing the record, “the court must view the
evidence in the light most favorable to the non-moving party and draw all reasonable
inferences in its favor.” Id. (quoting Tysinger v. Police Dep’t of City of Zanesville,
463 F.3d 569, 572 (6th Cir. 2006)). “The mere existence of a scintilla of evidence
in support of the [non-moving party’s] position will be insufficient; there must be
evidence on which the jury could reasonably find for [that party].” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
Summary judgment is not
appropriate when “the evidence presents a sufficient disagreement to require
submission to a jury.” Id. at 251–52. Indeed, “[c]redibility determinations, the
weighing of the evidence, and the drawing of legitimate inferences from the facts
are jury functions, not those of a judge.” Id. at 255.
III
A
Plaintiff brings his claims against Olagbaiye and CCS under 42 U.S.C. § 1983.
“To prevail on a cause of action under § 1983, a plaintiff must prove ‘(1) the
deprivation of a right secured by the Constitution or laws of the United States (2)
caused by a person acting under the color of state law.’” Winkler v. Madison Cty.,
893 F.3d 877, 890 (6th Cir. 2018) (quoting Shadrick v. Hopkins Cty., 805 F.3d 724,
7
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736 (6th Cir. 2015) (quoting Jones v. Muskegon Cty., 625 F.3d 935, 941 (6th Cir.
2010)). “The principle is well settled that private medical professionals who provide
healthcare services to inmates at a county jail qualify as government officials acting
under the color of state law for the purposes of § 1983.” Id. (quoting Harrison v.
Ash, 539 F.3d 510, 521 (6th Cir. 2008)).
B
“The Supreme Court has long recognized that the government has a
constitutional obligation to provide medical care to those whom it detains.” Griffith
v. Franklin Cty., Ky., 975 F.3d 554, 566 (6th Cir. 2020). See also Estelle v.
Gamble, 429 U.S. 97, 104 (1976).
This obligation arises under the Eighth
Amendment to the United States Constitution, which “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
Cty., 390 F.3d 890, 895 (6th Cir. 2004) (quoting Estelle, 429 U.S. at 104).
An Eighth Amendment claim “has two components, one objective and one
subjective.” Rouster v. County of Saginaw, 749 F.3d 437, 446 (6th Cir. 2014). The
contours of those components are well-established.
“The objective component requires the existence of a ‘sufficiently serious’
medical need.” Jones, 625 F.3d at 941 (quoting Farmer v. Brennan, 511 U.S. 825,
834 (1994)). This type of need includes one “that has been diagnosed by a physician
8
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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. (quotation omitted).
“The subjective element requires ‘an inmate to show that prison officials have
‘a sufficiently culpable state of mind in denying medical care.’” Id. (quoting
Blackmore, 390 F.3d at 895). “Officials have a sufficiently culpable state of mind
where officials act with ‘deliberate indifference’ to a serious medical need.” Id.
(quoting Farmer, 511 U.S. at 834). “Under this standard, ‘the plaintiff must show
that each defendant acted with a mental state ‘equivalent to criminal
recklessness.’” Griffith, 975 F.3d at 568 (quoting Rhinehart v. Scutt, 894 F.3d 721,
738 (6th Cir. 2018)). “This showing requires proof that each defendant ‘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’ by failing to take
reasonable measures to abate it.” Id. (quoting Comstock v. McCrary, 273 F.3d 693,
703 (6th Cir. 2001)).
“[C]ourts are generally reluctant to second guess the medical judgment of
prison medical officials.” Jones, 625 F.3d at 944. As the Sixth Circuit has explained,
“where a prisoner has received some medical attention and the dispute is over the
adequacy of the treatment,” federal courts hesitate to review “medical judgments
and to constitutionalize claims that sound in state tort law.” Graham ex rel. Estate
of Graham v. County of Washtenaw, 358 F.3d 377, 385 (6th Cir. 2004). See also
9
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Estelle, 429 U.S. at 106 (“Medical malpractice does not become a constitutional
violation merely because the victim is a prisoner”); Groce v. Correctional Medical
Svcs., Inc., 400 F. App’x 986, 986, 988 (6th Cir. 2010) (affirming district court
holding that “treatment at issue amounted, at most, to medical malpractice rather
than the sort of deliberate indifference needed to establish a constitutional claim”
and noting that “[o]rdinary medical malpractice does not satisfy the subjective
component” of a deliberate indifference claim). “However, the Sixth Circuit has
also recognized that [p]rison officials may not entirely insulate themselves from
liability under § 1983 simply by providing some measure of treatment. Indeed,
deliberate indifference may be established in cases where it can be shown that a
defendant rendered grossly inadequate care or made a decision to take an easier but
less efficacious course of treatment.” Jones, 625 F.3d at 944-45 (internal punctuation
omitted).
IV
The Court turns first to Plaintiff’s claim that Olagbaiye was deliberately
indifferent to AD Milline’s serious medical needs. While the question is a very close
one, the Court concludes that Plaintiff’s evidence is sufficient to create a genuine
question of material fact on both the objective and subjective components of
Plaintiff’s deliberate indifference claim against Olagbaiye. Therefore, Olagbaiye is
not entitled to summary judgment.
10
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A
1
The evidence in the record is sufficient to create a material factual dispute on
the objective component of the claim against Olagbaiye. That evidence, when
viewed in the light most favorable to Plaintiff, supports an inference that AD Milline
suffered from a serious medical need while under Olagbaiye’s care. First, Plaintiff’s
medical expert, Dr. Mahir Elder, testified that AD Milline had an obvious and urgent
need for immediate hospitalization and testing when he presented at the jail’s health
unit on March 4, 2016, with a known history of pulmonary emboli, an elevated heart
rate, and an abnormal EKG. (See Dep. of Dr. Mahir Elder at 41-43, ECF No. 82-4,
PageID.1266.) That testimony, standing alone, is sufficient to establish that AD
Milline suffered from a serious medical need while under Olagbaiye’s care.
Second, as noted above, AD Milline’s autopsy confirmed that he suffered
from (1) organizing emboli that had likely been present in his lungs for weeks or
months before his death and (2) acute emboli that could have developed in the days
preceding his death. (See Dr. Spitz Dep. at 11-12, ECF No. 82-6, PageID.1309.) The
autopsy results are sufficient to support a finding that AD Milline suffered from
pulmonary emboli while under Olagbaiye’s care, and such emboli – which can be
deadly – plainly rise to the level of a serious medical condition. See Bennett v. Carter
Cty. Bd. of Comm’rs., 2019 WL 1671979, at * 5 (E.D. Okla. 2019) (holding that
11
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plaintiff satisfied objective component of deliberate indifference claim by showing
that decedent died as a result of a pulmonary embolism). In sum, Plaintiff satisfied
the objective component of his claim by presenting evidence that (1) AD Milline’s
observed condition on March 4th required urgent medical attention and (2) the
subsequent autopsy confirmed that AD Milline suffered from deadly pulmonary
emboli.
2
Defendants counter that as a matter of law Plaintiff cannot satisfy the objective
component of his deliberate indifference claim because AD Milline was not formally
“diagnosed with [pulmonary emboli] while at the Macomb County Jail.” (Ren. Mot.,
ECF No. 121, PageID.3856.) This argument fails for two reasons.
First, the argument ignores that Dr. Elder testified that even in the absence of
a formal diagnosis of pulmonary emboli, AD Milline’s observable condition
(combined with his known medical history on March 4th) required urgent medical
attention. As explained above, that testimony, if believed by a jury, is sufficient to
establish that AD Milline’s observable condition and known medical history, on
their own, amounted to a serious medical need.
Second, Sixth Circuit precedent confirms that a serious medical condition can
sometimes satisfy the objective component of a deliberate indifference claim even
where the condition is first formally diagnosed after the patient’s death. For
12
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instance, in Winkler v. Madison County, 893 F.3d 877, 890-91 (6th Cir. 2018), the
Sixth Circuit held that there was “no question” that a decedent’s duodenal ulcer –
first discovered after his death – satisfied the objective component of the plaintiff’s
deliberate indifference claim where the ulcer “ultimately caused [the decedent’s]
death.” The Sixth Circuit reached the same conclusion in Rouster, supra, another
case involving an inmate with an ulcer that was first diagnosed after his death:
A plaintiff satisfies the objective component by alleging
that the prisoner has a medical need that was sufficiently
serious. It is clear that [the inmate] suffered from a
serious, indeed dire, medical need while he was held at
Saginaw. He had a perforated duodenum, which leaked
toxic materials into his abdominal cavity and caused
internal bleeding. [The inmate] was held at Saginaw for
only a few days, but within that time he succumbed to
sepsis and died. Clearly then, [the inmate] had an
objectively serious need for medical treatment.
Rouster, 749 F.3d at 446.2 Thus, the fact that AD Milline was first formally
diagnosed with a pulmonary embolism after his death does not preclude Plaintiff
from establishing the objective element of his deliberate indifference claim. See
Hubble v. County of Macomb, 2019 WL 1778862, at *19 (E.D. Mich. 2019) (holding
that undiagnosed sepsis amounted to a serious medical condition that satisfied the
2
The Sixth Circuit did not suggest in either Rouster or Winkler that the objective
component of a deliberate indifference claim was satisfied because before the
inmates died, they had suffered from symptoms that were “so obvious that even a
lay person would easily recognize the necessity for a doctor’s attention.” Jones v.
Muskegon Cty., 625 F.3d 935, 941 (6th Cir. 2010).
13
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objective component of a deliberate indifference claim and collecting cases holding
that other undiagnosed serious conditions also satisfied the objective component).3
In addition to conflicting with precedent, Defendants’ position – that a formal
diagnosis is essential to satisfy the objective component whenever a lay person
would not recognize the need for immediate treatment – suffers from additional
flaws. For instance, it creates perverse incentives for jail doctors not to diagnose
inmates. Likewise, it fails to account for the fact that some serious – indeed, life
threatening – conditions would be reasonably apparent to jail doctors even though
they cannot be formally diagnosed in a jail setting, and it immunizes jail doctors for
their conduct in connection with these conditions even where they act with reckless
3
In many cases, defendants do not even dispute that a serious condition that went
undiagnosed could satisfy the objective component of a deliberate indifference
claim. See, e.g., North v. Cuyahoga County, 754 F. App’x 380, 387 (6th Cir. 2018)
(defendant did not dispute that undiagnosed endocarditis satisfied objective
component of deliberate indifference claim); Perry v. Talbot, 2021 WL 781290, at
*3 (S.D. Ind. Mar. 1, 2021) (noting that defendant did “not dispute that [plaintiff’s]
undiagnosed, untreated diabetes was a serious medical condition” and “proceed[ing]
directly” to subjective component of deliberate indifference claim).
14
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disregard for an inmate’s health and safety.4 Simply put, Defendants’ approach
would leave a gaping hole in the Eighth Amendment.
And for that reason,
Defendants’ formal-diagnosis-is-essential position cannot be correct.
3
Defendants also argue that Plaintiff cannot satisfy the objective component of
his claim because the evidence does not show that AD Milline was suffering from
the pulmonary embolism that caused his death when Olagbaiye last treated him on
March 4th. (See Ren. Mot., ECF No. 121, PageID.3857.)
In support of this
argument, Defendants highlight the medical examiner’s testimony that acute emboli
contributed to AD Milline’s death and that they most likely developed a day or two
4
Bacterial meningitis is an example of one such condition. The classic symptoms
of this condition include headache, fever, stiff neck upon examination, nausea, and
sensitivity to light. See https://www.cdc.gov/meningitis/bacterial.html#symptoms
(last visited August 2, 2021.) While these symptoms – which are roughly consistent
with a migraine headache – would not necessarily alert a lay person that medical
attention is essential, a physician who examined an inmate presenting with these
symptoms could well strongly suspect that the inmate was suffering from possible
meningitis. But the condition cannot be formally diagnosed without a blood test
and/or spinal tap. Under Defendants’ approach, a jail physician could not be held
liable under the Eighth Amendment if, after examining a jail inmate with classic
symptoms of meningitis, the physician recognized that the inmate was likely
suffering from that ailment (which the physician could not definitively diagnose
without one of the aforementioned tests), and the physician nonetheless intentionally
withheld treatment. Defendants’ approach would unreasonably immunize the
physician under these circumstances because the inmate’s condition had not been
formally diagnosed through a spinal tap or blood test at the time the physician
withheld treatment.
15
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before his death (i.e., on March 5 or 6). (See id., citing Dr. Spitz Dep. at 50,
PageID.1319.)
There are two problems with this argument. First, Plaintiff’s ability to
establish the objective component of his claim does not depend upon his ability to
show that on March 4th, AD Milline was suffering from the precise pulmonary
embolism that ultimately caused his death. Plaintiff can satisfy the objective
component through Dr. Elder’s testimony that AD Milline was in urgent need of
medical treatment on March 4th in light of his symptoms and medical history. That
testimony – especially when coupled with the medical examiner’s testimony that AD
Milline suffered from organizing pulmonary emboli as of March 4th – is more than
enough to establish the objective component of Plaintiff’s deliberate indifference
claim. Second (and in any event), the medical examiner’s testimony did not preclude
the possibility that the emboli that caused AD Milline’s death were present on March
4th. For these reasons, the Court declines to grant summary judgment on the ground
that AD Milline was not suffering from fatal pulmonary emboli when Olagbaiye last
saw him on March 4th.
B
1
The evidence in the record is also sufficient to create a material factual dispute
as to the subjective element of the deliberate indifference claim against Olagbaiye.
16
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The Sixth Circuit has offered the following guidance for assessing the
subjective element:
A plaintiff satisfies the subjective component by
“alleg[ing] 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 v. McCrary, 273 F.3d 693, 703 (6th
Cir.2001). The subjective requirement is designed “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.” Id. (citing Estelle, 429 U.S. at 106, 97 S.Ct.
285). We have described the mental state of a prison
official who has been deliberately indifferent to a
prisoner’s medical needs as akin to recklessness:
When 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. On the other hand, a
plaintiff need not show that the official acted “for
the very purpose of causing harm or with
knowledge that harm will result.” Instead,
“deliberate indifference to a substantial risk of
serious harm to a prisoner is the equivalent of
recklessly disregarding that risk.”
Id. (internal citations omitted) (quoting Farmer, 511 U.S.
at 835–36, 114 S.Ct. 1970). The plaintiff bears the burden
of proving subjective knowledge, but he may do so with
ordinary methods of proof, including by using
circumstantial evidence. Farmer, 511 U.S. at 842, 114
S.Ct. 1970. Indeed, “a factfinder may conclude that a
prison official knew of a substantial risk from the very fact
that the risk was obvious.” Id.
17
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Rouster, 749 F.3d at 446-47.
In addition, a “particular defendant’s level of
knowledge and training also must be considered in the subjective analysis.” Hubble,
2019 WL 1778862, at *14 (citing Sours v. Big Sandy Regional Jail Authority, 593
F. App’x 478, 484 (6th Cir. 2014). Finally, “[e]xpert 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 conscious disregard for the plaintiff’s health.” Id.
(quoting Smith v. Campbell County, 2019 WL 1338895, at *14 (E.D. Ky. 2019)).
The following evidence, when viewed in the light most favorable to Plaintiff,
is sufficient to support inferences that Olagbaiye (1) subjectively perceived facts
from which he could infer that AD Milline faced a substantial risk of serious harm,
(2) did in fact draw that inference, and (3) then disregarded that risk:
Olagbaiye had substantial medical education, including a medical degree
from a Nigerian medical school and three degrees in nursing from North
American colleges. (See Olagbaiye Dep. at 6-12, ECF No. 95-13,
PageID.2780-2781.) This medical training included instruction concerning
“the signs and symptoms of someone at risk for a pulmonary embolism.”
(Id. at 48-49, PageID.2790-2791.)
Olagbaiye had substantial experience working as a medical professional.
This experience included general medical practice in Nigeria and many
years working as a nurse and nurse practitioner in the United States. (Id. at
6-17, PageID.2780-2783.)
18
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As of March 4, 2016, Olagbaiye was aware that AD Milline had a preincarceration history of pulmonary emboli. (See id. at 41-43, 94,
PageID.2789, 2802.) As of March 4, 2016, Olagbaiye was also aware that
AD Milline complained of chest pains while incarcerated. (See id.; see also
id. at 83, 91-92, PageID.2799, 2801.) Despite that knowledge, Olagbaiye
did not order AD Milline’s medical records. (See id. at 152-53,
PageID.2816-2817.)
On March 4, 2016, Olagbaiye was informed that AD Milline was
experiencing chest pains, that his heart rate had been measured at around
110 or 111 beats per minute (see id. at 130, PageID.2811), and that AD
Milline’s EKG test result was abnormal. (See id. at 125, PageID.2810.)
When confronted with that information, Olagbaiye did not direct the nurse
to take an additional set of vitals or to continue to actively monitor AD
Milline’s vitals, did not direct that any additional testing be performed on
AD Milline, did not arrange for additional monitoring of AD Milline, did
not prescribe any new treatment, and did not arrange for AD Milline to be
hospitalized. Instead, Olagbaiye asked the nurse to put AD Milline on the
list to be seen on Monday (three days later) when Olagbaiye returned to
the jail. (See id. at 130, PageID.1228.)
According to Dr. Elder, “any medical professional” who was aware of
these circumstances, would have “understood” that it was necessary to
“start immediate treatment” for a pulmonary embolism. (Dr. Elder Dep. at
41-42, ECF No. 82-4, PageID.1266.) The need for immediate treatment
was underscored by, among other things, the difference in the EKG test
result of March 4, 2016, as compared to prior EKG test results. (See id. at
50-51, PageID.1268.) Dr. Elder stressed that “because the risk of death is
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very high, you treat immediately, and so there is no delay, then you
diagnose.” (Id. at 43, PageID.1266.)
Dr. Elder added that Olagbaiye’s failure to follow this course of action was
more serious than “just med[ical] mal[practice].” (Id. at 46, PageID.1266.)
Indeed, in Dr. Elder’s opinion, the care provided by Olagbaiye on March
4, 2016, was “so inadequate as to amount to no treatment at all.” (Id. at 1112, PageID.1258.)
Even Defendants’ own nurse practitioner expert witness acknowledged
that (1) given AD Milline’s circumstances, he “would [have] tr[ied] to get
the history documentation” (i.e., AD Milline’s medical records) and (2)
when AD Milline’s EKG came back abnormal and his heart rate was
measured at least once on March 4, 2016, at 111 beats per minute, AD
Milline “was going to require probably some additional monitoring of vital
signs to see if he, you know, returns to tachycardia.” (Dep. of Michael
McMunn, N.P., at 55, 97, ECF No. 100-1, PageID.3481, 3492.)
Given this evidence, a jury could reasonably conclude that Olagbaiye (1)
recognized that AD Milline was suffering from a pulmonary embolism, (2)
understood that immediate treatment was necessary and that without such treatment
AD Milline faced a serious risk of a grave outcome, and (3) disregarded that risk.
See Lemarbe v. Wisneski, 266 F.3d 429, 436-38 (6th Cir. 2001) (holding that a jury
could reasonably infer that defendant-physician drew inference of substantial risk of
serious harm where expert witness testified, among other things, that the risk “was
extreme and obvious to anyone with a medical education”).
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2
Defendants offer serious and thoughtful counterarguments as to why
Plaintiff’s evidence is insufficient to satisfy the subjective element of his claim, but
none persuade the Court that Plaintiff’s evidence falls short.
First, Defendants highlight that Dr. Elder made a number of references to
deviations from the “standard of care,” and they argue that Dr. Elder’s opinion thus
sounds in medical malpractice rather than deliberate indifference. However, while
Dr. Elder did mention the standard of care, as noted above, he also unequivocally
testified that Olagbaiye’s lack of care for AD Milline was tantamount to no treatment
at all and was “not just” medical malpractice. (Dr. Elder Dep. at 11-12, 46, ECF No.
82-4, PageID.1258, 1267.)
Second, Defendants argue that Dr. Elder’s testimony is inadmissible against
Olagbaiye – and thus cannot be the basis for sustaining the subjective element of
Plaintiff’s claim – because Dr. Elder’s opinions “are inappropriately founded in his
extensive background in diagnosing, treating, researching, and publishing on
pulmonary embolisms.” (Ren. Mot., ECF No. 121, PageID.3866.) Defendants insist
that Dr. Elder inappropriately held Olagbaiye to a higher level of care than could be
expected of a nurse practitioner without extensive training in pulmonary emboli.
(See id., PageID.3867.) But while Dr. Elder certainly has an extensive background
in the diagnosis and treatment of pulmonary emboli, he was careful to say that “any
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medical professional” would have recognized the immediate severe risk to AD
Milline’s health. (Dr. Elder Dep. at 41-42, ECF No. 82-4, PageID.1266; emphasis
added.) Thus, Dr. Elder did not hold Olagbaiye to an unfairly high (or unfairly
prejudicial) standard of care. Moreover, Olagbaiye has far more medical training
than many other nurse practitioners. He has a medical degree from a Nigerian
medical school and numerous nursing degrees from North American colleges.
Given Olagbaiye’s background, Dr. Elder may fairly opine as to what he (Olagbaiye)
must have known. Notably, Defendants have not identified for the Court any
decision in which any federal court has excluded testimony like Dr. Elder’s on the
grounds urged by Defendants here and under circumstances like those presented
here.
Third, Defendants argue that Olagbaiye did not fail to provide treatment but,
instead, left in place the treatment plan he had previously prescribed. (See Ren. Mot.,
ECF No. 121, PageID.3861.) However, Dr. Elder testified that the existing treatment
plan was wholly inappropriate for a patient with AD Milline’s history and symptoms
and amounted to no treatment at all. (See Dr. Elder Dep. at 11-12, 38, ECF No. 824, PageID.1258, 1265.) In light of Dr. Elder’s testimony, Defendants are not entitled
to summary judgment on the ground that Olagbaiye left his prior treatment regimen
in place.
22
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Fourth, Defendants highlight that Olagbaiye’s interactions show genuine
concern for AD Milline. They note, for instance, that on at least one occasion (prior
to March 4, 2016), Olagbaiye scheduled an evaluation of AD Milline “of his own
accord” because he was concerned about AD Milline’s chest pain and history of
pulmonary emboli. (Ren. Mot., ECF No. 121, PageID.3860.) While this conduct by
Olagbaiye may help to persuade a jury that Olagbaiye did not ever act with deliberate
indifference, it does not compel that conclusion – especially when this conduct by
Olagbaiye occurred nearly one year before the critical events of March 4, 2016.
Finally, Defendants argue that the Sixth Circuit’s decisions in Rouster and
Rhinehart, supra, compel the conclusion that Olagbaiye did not act with deliberate
indifference.
The Court respectfully disagrees and finds that both cases are
distinguishable. In Rouster, the plaintiff brought a deliberate indifference claim
against several jail medical staff members who failed to diagnose an inmate’s ulcer.
The Sixth Circuit held that the claim failed as a matter of law because the plaintiff
did not present sufficient evidence that the defendants were subjectively aware of
the risks to the inmate. However, the Sixth Circuit stressed that the jail staff “did
not have one very critical piece of information, which might have allowed [the court]
to draw a very different conclusion: [the staffer] did not know that [the inmate] had
been treated the previous year for a duodenal ulcer.” Rouster, 749 F.3d at 448-49.
The Sixth Circuit said that if the jail staff “had received full information regarding
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[the inmate’s] medical history, we could easily conclude that [they] were
deliberately indifferent to [the inmate’s] needs.” Id. at 453. Here, in sharp contrast,
Olagbaiye did know that AD Milline had a history of pulmonary emboli. Thus,
Rouster actually provides some support to Plaintiff’s claim that Olagbaiye acted with
deliberate indifference when, despite his knowledge of AD Milline’s medical
history, he did not treat AD Milline for a pulmonary embolism on March 4th.
In Rhinehart, the plaintiff alleged that prison physicians were deliberately
indifferent to his serious medical needs when they provided allegedly-deficient care
for his end-stage liver disease. The Sixth Circuit held that the plaintiff could not
establish that the physicians acted with deliberate indifference because, among other
things, he failed “to present medical proof” that certain courses of treatment not
pursued by the physicians “was necessary,” Rhinehart, 894 F.3d at 740; one of the
physicians prescribed a medication for his condition that was a “recognized
treatment” in the “medical literature” cited by the plaintiff, id. at 743-44; the plaintiff
failed to present evidence that “any doctor would have known” that an inmate in his
condition was a candidate for the treatment he sought, id. at 748-49; and one of the
other physicians consulted with a physician colleague and weighed the risks and
benefits before deciding against the course of treatment sought by the plaintiff. See
id. at 750-51. Here, unlike in Rhinehart, Plaintiff did present evidence that any
medical professional would have recognized the need to treat AD Milline for a
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pulmonary embolism; Olagbaiye did not treat AD Milline in accordance with
standards set forth in any literature cited by Plaintiff; and there is no evidence that
Olagbaiye consulted with anyone when he failed to take action on March 4, 2016.
Thus, Rhinehart does not compel dismissal of Plaintiff’s deliberate indifference
claim against Olagbaiye.
3
For all of the reasons explained above, the evidence presented by Plaintiff is
sufficient to create a material factual dispute on all of the elements of Plaintiff’s
deliberate indifference claim against Olagbaiye. The Court will therefore deny
Defendants’ motion for summary judgment on that claim.
V
The Court now turns to Plaintiff’s deliberate indifference claim against CCS.
Defendants are entitled to summary judgment on that claim.
A
Plaintiff’s claim against CCS under 42 U.S.C. § 1983 is treated like “claims
premised upon [municipal] liability pursuant to” Monell v. Department of Social
Services, 436 U.S. 658, (1978). Martin v. Warren County, Kentucky, 799 F. App’x
329, 341 (6th Cir. 2020) (evaluating claim against private entity that provided health
25
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care to jail inmates under the Monell standard).5 Under the governing Monell
standard, an entity “may not be held liable under § 1983 on a respondeat
superior theory—in other words, solely because it employs a tortfeasor.” Jackson v.
City of Cleveland, 925 F.3d 793, 828 (6th Cir. 2019) (quotation omitted; emphasis
in original). Rather, “a plaintiff must show that through its deliberate conduct, the
municipality was the moving force behind the injury alleged.” Id. (quotation
omitted).
A plaintiff makes that showing by presenting evidence “that the
municipality had a ‘policy or custom’ that caused the violation of his rights.” Id.
(quoting Monell, 436 U.S. at 694). “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.” Id. (quotation omitted).
B
Plaintiff appears to proceed under the first, third, and fourth methods of
proving liability. Plaintiff argues that “CCS’s policies, customs, and practices
undergird a culture of widespread ineptitude” that has “proven fatal” more than once,
5
See also Winkler v. Madison County, 893 F.3d 877, 904 (6th Cir. 2018) (applying
Monell standard to claim against private entity that provided health care to jail
inmates).
26
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including in this case. (Pl’s. Resp., ECF No. 125, PageID.3979.) Plaintiff further
contends that “CCS’s failure to train and/or supervise its employees evidences a
deliberate indifference to the rights of its patients….” (Id.)
In CCS’ motion for summary judgment, CCS cited evidence that tends to
support its position that it did not fail to train its employees and did not have customs,
policies, or practices that caused violations of inmates’ constitutional rights. (See
Ren. Mot., ECF No. 121, PageID.3841-3847.) That evidence was sufficient to
satisfy CCS’ burden of production as the moving party and to shift to Plaintiff the
burden of identifying evidence in the record that created a genuine dispute of
material fact on these issues. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
(describing initial burden of production and shifting of burden in summary judgment
context). Plaintiff failed to carry his burden.
Plaintiff’s response does not identify evidence in the record that creates a
material factual dispute on any of his theories of liability under Monell. Indeed,
Plaintiff’s response cites barely any evidence at all concerning CCS’ practices,
training, or policies. Instead, Plaintiff focuses almost exclusively on bad outcomes
at the Macomb County Jail (and elsewhere) since CCS began overseeing medical
care at the jail:
Defendant Olagbaiye is not the only CCS employee who
has violated the constitutional rights of patients. In 2011,
Macomb County entered into an “Inmate Health are [sic]
Services Management Agreement” with CCS whereby
27
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CCS would provide “comprehensive institutional
healthcare services for MCJ.” (ECF 95-5). Interestingly,
since 2012, more than 20 people have died at MCJ. Aside
from MCJ, Defendant CCS holds government contracts
with more than 500 other facilities across 34 states. (ECF
95-6). Over the past decade, Defendant CCS has been sued
at least 1,396 times in federal courts. (ECF 95-7). Notably,
CNN reports, after “review[ing] hundreds of federal and
local lawsuits filed against CCS between 2014 and 2018,”
that Defendant CCS has been successfully sued for
substandard care in approximately 200 lawsuits, 70 of
which involved inmate deaths. (ECF 95-6).
That means, in a four-year span, fourteen percent (14%) of
the lawsuits filed within the last decade were successful
against Defendant CCS, and of those, thirty-five percent
(35%) stemmed from an inmate’s death. These numbers
reflect an astonishing and discouraging trend as it pertains
to Defendant CCS’ standard of care and/or deliberate
indifference towards its patients.
According to former Defendant CCS Health Service
Administrator, David Arft, Defendant CCS at MCJ
experienced problems with bringing patients to medical
within an appropriate amount of time. (ECF 95-9 p. 38 ln
4-15). Additionally, due to the overcrowded inmate
population at MCJ, coupled with Defendant CCS being
understaffed, Defendant CCS employees with little
experience see “hundreds” if inmates a day. (ECF 95-10
p.6 ln 18-19; p. 7 ln 11; p. 14, ln 5-13). Surprisingly,
Defendant CCS staffs only two health care providers at
any time – a physician and a part-time nurse practitioner –
for MCJ which houses approximately 1,200 inmates. Just
because Defendant CCS claims to have “implemented”
various policies and procedures, does not mean they are
being followed or adhered to by its employees. If
Defendant CCS employees fully complied with the
policies and procedures as set forth in Defendants’ instant
motion, then its complaint rate would drop, its number of
lawsuits would diminish, and most importantly, the death
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rate would be arguably nonexistent. Instead, an old adage
applies – “actions speak louder than words.”
The staffing problems and increased mortality rate, alone,
beg questions regarding Defendant CCS’ customs,
policies and/or acquiesced behavior by its employees. No
medical expertise or training is necessary to understand
that conditions at MCJ under CCS are ripe for disaster.
Indeed, as the instant case demonstrates, CCS’ policies,
customs and practices undergird a culture of widespread
ineptitude and carelessness that has, on more than one
occasion, proven fatal to those individuals under its care.
Here, CCS’s failure to train and/or supervise its employees
evidences a deliberate indifference to the rights of its
patients, and its policies, customs, and or acquiesced
practices are actionable under §1983. Thus, Plaintiff has
more than satisfied the requirement that CCS’ customs,
policies and/or acquiescence has been identified and
linked to unconstitutional and, often times deadly patterns
and activities, specifically as it relates to Olagbaiye’s
indifference to Plaintiff’s medical needs.
(Pl’s. Resp., ECF No. 125, PageID.3977-3979.)
The two record citations that Plaintiff did include in this passage concerning
CCS’ practices fall far short of creating a material factual dispute as to CCS’ liability
under the Monell standard. At the cited page of Mr. Arft’s deposition, he said only
that “in some [unidentified number of] cases” inmates were not being brought to
health services quickly enough. (Arft Dep. at 38, ECF No. 95-9, PageID.2720.) And
the deposition excerpts at ECF Number 95-10 state only that one registered nurse
saw hundreds of patients per day. (See Dep. of Avery Hope at 6, 7, and 14, ECF No.
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95-10, PageID.2737, 2739.) These two snippets of testimony do not establish that
CCS had any jail-wide policies, practices, customs, or lack of training.
Moreover, Plaintiff has failed to direct the Court to evidence that any CCS
policy, custom, practice, or lack of training was the “moving force” behind AD
Milline’s death. Plaintiff’s medical expert, Dr. Elder, opined that AD Milline died
because Olagbaiye made grossly improper medical decisions concerning AD
Milline’s medical care on March 4, 2016 (and to a lesser extent on the few days
beforehand). (See Dr. Elder Dep. at 38-46, ECF No. 82-4, PageID. 1265-1267.)
Plaintiff has not presented proof that Olagbaiye’s allegedly gross dereliction of duty
was caused by a policy, practice, or custom of CCS, or by CCS’ failure to train
Olagbaiye. Indeed, the passage quoted above makes no real effort to draw any
specific connection between any act or omission and CCS, on the one hand, and
Olagbaiye’s alleged deficiencies, on the other hand. Accordingly, Defendants are
entitled to summary judgment on the claim against CCS. See Graham ex rel. Estate
of Graham, 358 F.3d at 385 (affirming grant of summary judgment and holding that
“[e]ven if [the decedent] received constitutionally inadequate medical care, there
[was] simply no evidence that [a] policy was the ‘moving force’ behind that
constitutional violation”); Gray v. City of Detroit, 399 F.3d 612, 616-17 (6th Cir.
2005) (affirming grant of summary judgment and holding that there was “[n]o
30
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[e]vidence” that the “a [p]olicy or [c]ustom” of the defendant was the “[m]oving
[f]orce” behind the alleged violation of plaintiff’s constitutional rights”).
For all of these reasons, Plaintiff’s claim against CCS fails as a matter of law.
VI
For the reasons explained above, Defendants’ motion for summary judgment
is GRANTED with respect to Plaintiff’s Eighth Amendment deliberate indifference
claim against CCS and is DENIED with respect to Plaintiff’s Eighth Amendment
deliberate indifference claim against Olagbaiye.
IT IS SO ORDERED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: August 3, 2021
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on August 3, 2021, by electronic means and/or ordinary
mail.
s/Holly A. Monda
Case Manager
(810) 341-9764
31
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