Horn v. Tuscola County Jail et al

Filing 65

MEMORANDUM OPINION and ORDER Denying Plaintiff's Objections to 62 Report and Recommendation, Adopting in Part 60 Report and Recommendation, and Granting Defendants' 56 Motion for Summary Judgment - Signed by District Judge Judith E. Levy. (FMos)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Stephen Horn,
Plaintiff,
v.

Case No. 13-cv-14626
Judith E. Levy
United States District Judge

Tuscola County and Officer
Ramirez,

Mag. Judge Elizabeth A. Stafford

Defendants.
________________________________/
OPINION AND ORDER DENYING PLAINTIFF’S OBJECTIONS
TO REPORT AND RECOMMENDATION [62], ADOPTING IN
PART REPORT AND RECOMMENDATION [60], AND
GRANTING DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT [56]
On November 7, 2013, plaintiff Stephen Horn filed a complaint
against defendants Tuscola County and Officer Jonathan Ramirez,
alleging they violated his Eighth Amendment rights and were grossly
negligent with regard to his medical needs on and after February 18,
2011. (Dkt. 1.)1 On May 27, 2016, defendants filed a motion for summary

Plaintiff also named several other defendants who were previously dismissed from
the case.
1

judgment. (Dkt. 56.) On November 8, 2016, the Magistrate Judge issued
a Report and Recommendation (“R&R”) on defendants’ motion for
summary judgment, and recommended the motion be granted. (Dkt. 60.)
On November 22, 2016, plaintiff filed objections to the R&R. (Dkt. 62.)
For the reasons set forth below, plaintiff’s objections are denied, the
Report and Recommendation is adopted in part, and defendants’ motion
for summary judgment is granted.
I.

Background
A detailed recitation of the background of this case is included in

the Magistrate Judge’s R&R (Dkt. 60), and will be adopted here. That
said, this case results from plaintiff being given Ambien and Seroquel,
two sleep medications, on February 18, 2011, even though they were not
prescribed for him.
The Magistrate Judge recommended granting the motion for
summary judgment.

First, plaintiff was not entitled to an adverse

inference for alleged spoliation of evidence. (Dkt. 60 at 6–8.) Second,
there is no question of material fact that would demonstrate defendants
violated plaintiff’s Eighth Amendment rights due to deliberate
indifference to his medical needs, and even if plaintiff could show
2

deliberate indifference, defendant Officer Ramirez is entitled to qualified
immunity. As a result, the Magistrate Judge found that plaintiff could
not maintain his municipal liability claim. (Id. at 8–13.) Finally, there
is no dispute of material fact that would demonstrate Officer Ramirez
was grossly negligent with respect to plaintiff’s medical needs and safety.
(Id. at 13–14.)
Plaintiff filed objections, arguing the Magistrate Judge erred in
reaching each of the above-described recommended findings. (Dkt. 62.)
II.

Legal Standard
A magistrate judge’s Report and Recommendation is made

pursuant to 28 U.S.C. § 636(b)(1).

“[T]his recommendation has no

presumptive weight,” and the district judge “has the responsibility of
making the final determination.” Patrick Collins, Inc. v. John Does 1-21,
286 F.R.D. 319, 320 (E.D. Mich. 2012). If a party objects to part or all of
the R&R, the district judge must review de novo those parts to which the
party has objected. Lardie v. Birkett, 221 F. Supp. 2d 806, 807 (E.D.
Mich. 2002); Fed. R. Civ. P. 72(b)(3). De novo review “entails at least a
review of the evidence that faced the Magistrate Judge.” Lardie, 221 F.

3

Supp. 2d at 807. After reviewing an R&R, a court may “accept, reject, or
modify the findings or recommendations.” Id.
III. Analysis
Plaintiff

objects

to

each

of

the

Magistrate

Judge’s

recommendations, except the finding that plaintiff need not prove he
exhausted the administrative remedies, and this Court will therefore
conduct a de novo review of the evidence and arguments before the
Magistrate Judge.
Objection 1: Eighth Amendment Claim
Plaintiff first objects to the recommended finding that there are no
questions of material fact with regard to the objective or subjective
elements of the deliberate indifference inquiry. (Dkt. 62 at 8–9.)
Under the Eighth Amendment, inmates have a right to adequate
medical care for their serious medical needs. Estelle v. Gamble, 429 U.S.
97, 103–05 (1976). Courts use a mixed objective and subjective standard
to determine the existence of deliberate indifference. Miller v. Calhoun
County, 408 F.3d 803, 812 (6th Cir. 2005). The objective component
“requires the existence of a ‘sufficiently serious’ medical need.”

Id.

(quoting Blackmore v. Kalamazoo County, 390 F.3d 890, 895 (6th Cir.
4

2004)). To show that a sufficiently serious medical need exists, a plaintiff
must demonstrate that he “is incarcerated under conditions imposing a
substantial risk of serious harm.” Id. (quoting Farmer v. Brennan, 511
U.S. 825, 834 (1994)). To establish a defendant acted with subjective
deliberate indifference, plaintiff must “allege facts which, if true, would
show that the official being sued subjectively perceived facts from which
to infer substantial risk to the prisoner, that he did in fact draw the
inference, and that he then disregarded that risk.” Harris v. City of
Circleville, 583 F.3d 356, 368 (6th Cir. 2009).
Plaintiff alleges Officer Ramirez did not check the label on the
medication despite knowing that giving plaintiff incorrect medication
posed a substantial risk of serious harm. (Dkt. 62 at 16–18.) But the
facts reveal the opposite, and plaintiff’s reliance on Thomas v. Wall, No.
16-cv-116, 2016 WL 3006834 (W.D. Wis. May 23, 2016), is misplaced. The
Thomas court held the plaintiff had stated a claim for deliberate
indifference because the officer dispensing medication made no effort to
verify the medication was correct on multiple occasions and had been
informed on multiple occasions that the inmates were receiving the
improper medication. Id. at *1. Here, plaintiff was given the incorrect
5

medication once, and Officer Ramirez took steps to respond to the error
by consulting the treating physician, Dr. Cullinan. Further, even if this
conduct raises a question of fact as to whether plaintiff has set forth a
serious medical need that imposed a substantial risk of harm, plaintiff
has not satisfied the subjective prong of the analysis.
Plaintiff has not submitted evidence that suggests Officer Ramirez
was more than negligent when he gave plaintiff the incorrect medication.
First, as plaintiff states, Officer Ramirez and plaintiff discussed whether
plaintiff was being given the incorrect medication, and “Officer Ramirez
again confirmed to Plaintiff that the medication was, in fact, correct.”
(Dkt. 47 at 4.) After Officer Ramirez realized his error, he consulted with
the treating physician, Dr. Cullinan, who told him plaintiff would be fine,
did not need to be observed, and should be given the correct medication.
Officer Ramirez followed Dr. Cullinan’s directions. His actions do not
evidence a culpable state of mind or intent to punish plaintiff.
At most, giving plaintiff the incorrect medication amounts to
negligence. And without more than negligence, “incorrect administration
of [medication]” cannot satisfy the subjective standard for an Eighth
Amendment claim. Barnett v. Luttrell, 414 F. App’x 784, 788 (6th Cir.
6

2011); see also Jones v. Miller, Case No. 12-cv-2666, 2013 WL 1195525,
at *3 (N.D. Ohio Mar. 22, 2013) (subjective standard not met and
therefore no deliberate indifference even though nurse gave plaintiff
wrong medication without verifying plaintiff’s identity); Hay v. Cuyahoga
Cty. Jail Med. Dep’t, Case No. 11-cv-2652, 2012 WL 262582, at *4 (N.D.
Ohio Jan. 27, 2012) (same).
Moreover, plaintiff’s allegations do not focus solely on whether
Officer Ramirez checked the label, but on Officer Ramirez’s failure to
“contact his supervisor or any jail medical personnel despite knowing
that Plaintiff had digested, at Officer Ramirez’s direction, improper
medication.” (Dkt. 47 at 5.) Plaintiff appears to admit, however, that
Officer Ramirez did, in fact, contact Dr. Cullinan, who informed him that
“he should be tickled to receive those and that he would be fine,” and that
“no observation was needed.” (Dkt. 56-4 at 8; Dkt. 56-8 at 2.) Contrary
to plaintiff’s argument that Dr. Cullinen’s comments suggest plaintiff
would “get high, so who cares” (Dkt. 62 at 17), the comments clearly
indicate Officer Ramirez was informed plaintiff “would be fine.”
Plaintiff also argues that defendants’ unsworn expert report raises
questions of material fact as to proximate cause, and that he should also
7

be permitted to undertake expert discovery to establish that the two sleep
medications can have serious consequences when initially taken. Fed. R.
Civ. P. 56(d) permits the nonmoving party facing a pending motion for
summary judgment to file an affidavit or declaration in opposition to the
motion on the grounds that it cannot provide certain facts critical to its
arguments for specific reasons, and to request additional time for
discovery to obtain those facts. Here, plaintiff has not submitted a Rule
56(d) declaration to oppose this motion for summary judgment and to
request additional discovery. Instead, plaintiff (who is represented by
counsel) provided the package inserts for the two medications, suggesting
they provide admissible evidence sufficient to raise a material question
of fact regarding whether the medication created a serious medical
condition that caused his injury or warranted observation. But these
inserts cannot substitute for a Rule 56(d) affidavit, and will not prevent
the Court from granting defendant’s motion.
Further, expert discovery would not assist plaintiff in this case
because, as set forth above, plaintiff cannot satisfy the subjective prong
of the deliberate indifference standard. Thus, the issue of proximate
cause need not be reached.

Further, whether plaintiff’s condition
8

warranted observation was not a decision for Officer Ramirez to make,
but for the treating physician, as Officer Ramirez is not trained or
expected to be trained in making such decisions. Here, Officer Ramirez
followed Dr. Cullinan’s instructions, and the question of whether plaintiff
should have been observed is not relevant to Officer Ramirez’s liability.
In sum, there is no more than a scintilla of evidence to support
plaintiff’s claim that he has satisfied the subjective prong of the
deliberate indifference standard. And “a mere ‘scintilla’ of evidence in
support of the nonmoving party’s position is insufficient to defeat
summary judgment; rather, the non-moving party must present evidence
upon which a reasonable jury could find in [his] favor.” O’Donnell v. City
of Cleveland, 838 F.3d 718, 724 (6th Cir. 2016) (quoting Tingle v. Arbors
at Hilliard, 692 F.3d 523, 529 (6th Cir. 2012)). Defendant is therefore
entitled to summary judgment on this claim. Accordingly, plaintiff’s
objection to the Magistrate Judge’s recommendations as to the Eighth
Amendment claim is denied. The R&R is adopted in part as to the
discussion of the subjective standard of deliberate indifference, and
defendants’ motion for summary judgment on this claim is granted.

9

Objection 2: Qualified Immunity
Because plaintiff’s first objection regarding his Eighth Amendment
claim is denied and the Court adopts part of the R&R addressing the
Eighth Amendment claim, the Court need not address the issue of
qualified immunity. Accordingly, plaintiff’s objection is denied as moot,
and this portion of the R&R is not adopted.
Objection 3: Gross Negligence Claim
Plaintiff objects to the R&R on the ground that there is a dispute of
material fact with regard to whether Officer Ramirez acted with gross
negligence. (Dkt. 62 at 20–21.)
To demonstrate gross negligence, a plaintiff must show the
government employee’s conduct was “so reckless as to demonstrate a
substantial lack of concern for whether an injury results.” Tarlea v.
Crabtree, 263 Mich. App. 80, 90 (2004). “Simply alleging that an actor
could have done more is insufficient under Michigan law, because, with
the benefit of hindsight, a claim can always be made that extra
precautions could have influenced the result.”

Id.

Rather, gross

negligence “suggests . . . almost a willful disregard of precautions or
measures to attend to safety and a singular disregard for substantial
10

risks.” Id. In other words, “if an objective observer watched the actor, he
could conclude, reasonably, that the actor simply did not care about the
safety or welfare of those in his charge.” Id.
Here, plaintiff argues there is a genuine dispute of material fact as
to whether Officer Ramirez’s failure to check the label, failure to monitor
plaintiff, and failure to inform plaintiff of the effects of the medication
amount to gross negligence. (Dkt. 62 at 20.) As set forth above, plaintiff’s
evidence suggests, at most, ordinary negligence on the part of Officer
Ramirez. After learning the medication was incorrect, he consulted Dr.
Cullinan, who told him plaintiff would be fine, need not be observed, and
should be given the correct medication. Officer Ramirez followed these
instructions.

These actions do not suggest more than ordinary

negligence, and an objective observer would not reasonably conclude
Officer Ramirez acted without care for plaintiff’s safety and welfare.
Accordingly, plaintiff’s objection is denied, the part of the R&R on gross
negligence is adopted, and defendants’ motion for summary judgment on
this claim is granted.

11

Objection 4: Spoliation of Evidence Claim
Plaintiff objects to the R&R’s finding that he is not entitled to a
discovery sanction in the form of an adverse inference for defendants’
alleged destruction of the video of plaintiff’s fall the day after taking the
incorrect medication. (Dkt. 62 at 21–22.)
Under Fed. R. Civ. P. 37(e), if a party fails to preserve electronically
stored information “that should have been preserved in anticipation or
conduct of litigation . . . because a party failed to take reasonable steps
to preserve it,” the court may “upon finding that the party acted with the
intent to deprive another party of the information’s use in the litigation .
. . presume that the lost information was unfavorable to the party.” “[A]n
adverse inference for evidence spoliation is appropriate if the Defendants
“‘knew the evidence was relevant to some issue at trial and . . . [their
culpable] conduct resulted in its loss of destruction.’” Beaven v. U.S. Dep’t
of Justice, 622 F.3d 540, 553 (6th Cir. 2010).
“The culpable state of mind factor is satisfied by a showing that the
evidence was destroyed knowingly, even if without intent to breach a
duty to preserve it, or negligently.” Id. at 554 (internal quotations and
citations omitted). There must also be an obligation to preserve evidence,
12

which may arise “when a party should have known that the evidence may
be relevant to future litigation.” Id. at 553. If a party has “no notice of
pending litigation, the destruction of evidence does not point to
consciousness of a weak case and intentional destruction.” Id. (internal
quotations and citations omitted).
The Court need not decide this issue because the adverse inference
plaintiff seeks would not impact the outcome of this case, which relates
to whether giving him the incorrect medication and failing to observe him
after he ingested it amounts to deliberate indifference or gross
negligence. Plaintiff argues that the video would show his fall allegedly
caused by being given the wrong medication and at what time the fall
occurred. However, the manner in which the medication affected him is
not determinative of either claim, and therefore not relevant to
defendants’ liability.

Accordingly, plaintiff’s objection to the R&R’s

finding that no adverse inference is warranted is denied. Because the
Court’s analysis of the spoliation issue diverges from that in the R&R,
which found defendants did not act with intent to deprive plaintiff of the
evidence and did not prejudice him, this section of the R&R is not
adopted.
13

Objection 5: Municipal Liability Claim
Plaintiff objects to the R&R’s finding that defendants are entitled
to summary judgment on the municipal liability claim. (Dkt. 62 at 26–
27.)
Municipalities may be liable for an employee’s conduct if the
“challenged conduct occurs pursuant to a municipality’s ‘official policy,’”
and that policy caused the employee to violate a plaintiff’s constitutional
rights. D’Ambrosio v. Marino, 747 F.3d 378, 386 (6th Cir. 2014) (citing
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 693 (1978)). As set forth
above, plaintiff has not established that Officer Ramirez violated his
constitutional rights. Defendant Tuscola County therefore cannot be
held liable because no official policy or custom can be said to have caused
Officer Ramirez to violate plaintiff’s constitutional rights. Accordingly,
plaintiff’s objection to the R&R’s finding that defendant Tuscola County
cannot be held liable is denied. This part of the R&R is adopted, and
defendant’s motion for summary judgment on this claim is granted.

14

IV.

Conclusion

For the reasons set forth above, plaintiff’s objections on all counts
except qualified immunity are DENIED, and the objection to the findings
on qualified immunity (Dkt. 62) are DENIED AS MOOT.
The report and recommendation (Dkt. 60) is ADOPTED IN PART
as to all issues except (1) qualified immunity, (2) the findings regarding
whether plaintiff has satisfied the objective standard for deliberate
indifference, and (3) the analysis of the spoliation claim.
Defendants’ motion for summary judgment (Dkt. 56) is GRANTED.
IT IS SO ORDERED.
Dated: March 27, 2017
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on March 27, 2017.
s/Felicia M. Moses
FELICIA M. MOSES
Case Manager

15