Opinion
Case Number 01-10083-BC
August 20, 2002
OPINION AND ORDER GRANTING THE DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART DEFENDANT FOGUTH'S MOTION TO DISMISS
The plaintiff's decedent, John Schreiber, who was under a custodial sentence as a result of a felony conviction, was called in by his supervising probation agent for questioning to determine if he violated the terms of a Community Residential Placement Program (CRP) which allowed his release from confinement on a "tether." Schreiber was lodged in the Crawford County jail pending the investigation. There, he hung himself. The decedent's personal representative has filed an amended complaint alleging that the defendants violated Schreiber's rights under the Fourth, Eighth, and Fourteenth Amendments and committed acts of gross negligence that resulted in his death, The plaintiff also alleged a state law claim based on a building defect in the jail. The defendants have filed motions to dismiss and for summary judgment. The parties presented their arguments to the Court through their respective counsel at a hearing on June 20, 2002, and the matter is now ready for decision. The Court finds that the plaintiff has failed to state a constitutional claim against any defendant, and that the evidence does not support a jury-submissable claim for ordinary or gross negligence against any defendant except defendant Foguth. Accordingly, the Court will grant the motions for summary judgment, grant the motion to dismiss in part, dismiss the federal claims against all defendants, dismiss the building defect claim, and dismiss the gross negligence claims against Crawford County, the Crawford County Sheriff's Department, David Lovely and Michael Kelly.
I.
Schreiber was serving a sentence of nine to fourteen years with the Michigan Department of Corrections ("MDOC") for a conviction for uttering and publishing a forged instrument. The plaintiff was subsequently released from prison and placed in the CRP in October 1998. As a CRP participant, Schreiber was still considered a "prisoner" who was living in the community, although his movements were restricted and he was electronically monitored via a device known as a "tether." Schreiber was assigned to defendant Frank Foguth in October 1998, who acted as Schreiber's CRP agent. Before participating in the program, Schreiber was screened per MDOC requirements. The screening revealed no suicidal ideations or tendencies.
Schreiber found employment in the Gaylord, Michigan area, and over the next seventeen months held various jobs. On March 8, 2000, Foguth received a telephone call from one of Schreiber's previous employers who said that Schreiber made some unauthorized charges on their business account. The employer stated that Schreiber had been fired two weeks earlier and that he had not been returning their calls. Foguth considered the report significant because it indicated two potential violations of the tether conditions: criminal activity and departing his residence without employment, which is treated as escape. After receiving telefaxed documentation from the employer, Foguth called Schreiber into his office for a meeting. Foguth testified that it was his intention to detain Schreiber in the Crawford County Jail pending an investigation into the possible tether violation, pursuant to MDOC policy. Schreiber had previously been detained in this manner for an alleged violation in April 1999.
Foguth met with Schreiber at his office in the Crawford County Courthouse in Grayling, Michigan and informed him of the allegations. Schreiber responded by denying the charges and requesting time to return to his home and retrieve a pay stub that he said would verify his whereabouts. Foguth denied the request, telling Schreiber that if the investigation verified Schreiber's story and he was cleared regarding the unauthorized charges, Schreiber would be released. At no time did Foguth consider Schreiber to be a suicide risk, and Schreiber never suggested that his detention would move him to consider suicide. Schreiber's brother has since testified that Schreiber told his family that he would kill himself before he went back to prison. However, it is uncontested that no one from the family shared this information with Foguth or any of the other defendants in this case. Furthermore, no one in Schreiber's family took him seriously or thought he would actually take his own life.
The Crawford County Jail is located in the Crawford County Sheriff's Department, and is connected to the courthouse where Foguth's office is located. Foguth had access to the secured area of the jail via a door which is visually monitored by video cameras by a deputy located in the control booth; the deputy can release the latch by remote control to admit authorized persons. Through this door one enters a corridor which leads to a cell in an older portion of the jail, now referred to as the "court holding cell." The corridor was also monitored by video cameras with display screens in the control booth. however, there was no camera which monitored the inside of the court holding cell.
According to Foguth, he called over to the jail at approximately 11:30 a.m. and spoke to Sergeant Jim Golnick to advise that he would detain Schreiber. Golnick instructed Foguth to "bring him around to the front," that is, to the processing area where inmates are formally logged in. Golnick told Foguth that they were "short-staffed" at the jail and that no one could come around to get Schreiber. The customary procedure was that prisoners should be brought to the front of the jail for booking. Foguth could not bring Schreiber directly to the booking area of the jail via the corridor because there is an additional door at the cud of the corridor which can only be opened by a key that Foguth did not possess.
Foguth also testified that he did not want to take Schreiber through the parking lot to the booking area of the jail where prisoners are usually admitted because he felt that Schreiber was a flight risk, even though he voluntarily appeared that morning. At 12:22 p.m. Foguth "buzzed" the deputy in the control booth, defendant Michael Kelly, seeking entrance through the door near the court holding cell. Kelly's and Foguth's memories of the ensuing conversation conflict. Foguth claims that Kelly said "he was the only one" in the control booth, and that "we'll get to him as soon as we can." Foguth Pep. at 48. Kelly testified that he observed Foguth, Schreiber and two other probation officers at the door, recognized Foguth, and buzzed him in. Kelly then asked, "What's going on," and Foguth responded that he had Schreiber in custody. As Foguth was placing Schreiber in the court holding cell, Kelly testified that he said "I'm trapped and I can't come and get John." Michael Kelly Dep. at 18-19. Kelly stated that Foguth responded that Schreiber would be fine; Schreiber never said anything. Id. at 22.
Foguth placed Schreiber in the court holding cell and locked the outer door to the cell. He testified that he a did a cursory search for weapons, but did not remove Schreiber's belt or shoelaces. Kelly states that he did not witness any search conducted. Golnick testified that proper procedure would have required removing Schreiber's belt and shoelaces, and that he could not recall any other instance where someone was put in the holding cell with his belt and shoelaces not removed. The cell had a telephone that may have been operating. Foguth then went to lunch. Over the next 30 minutes the jail was busy. Sergeant Golnick served lunch to inmates and supervised collection of the trays. The recycling company arrived to pick up an inmate who worked for them. Inmates were taken to the library, a pastor arrived at the jail, and other inmates were called for schooling. At approximately 12:50 p.m., Kelly told Sergeant Golnick that Schreiber was in the court holding cell. he and Golnick were the only ones on duty. Golnick became upset upon learning of Schreiber's presence, exclaiming that he had told Foguth to bring Schreiber around to the front.
At approximately 1:07 p.m., Lieutenant Scott Feldhauser was returning from court. As he passed the court holding cell, he observed Schreiber hanging from the overhead bars of the inner cell door by his belt. Feldbauser was unable to lift Schreiber down and ran to the intercom to request assistance. Captain Art Clough arrived first, with Golnick arriving shortly after. They began CPR as soon as they got Schreiber down, but Schreiber had no pulse and felt cold. Foguth arrived within minutes to assist with CPR. The emergency medical team arrived at 1:20 p.m. and was unable to revive Schreiber. Schreiber was transferred to the hospital and pronounced dead on arrival.
There is no evidence that Schreiber had any contact with any members of the Sheriff's Department from the time he was placed in the court holding cell until he was found by Feldhauser. There also appears to be no evidence that any of the defendants had reason to suspect that Schreiber was suicidal that day. Crawford County personnel did have previous contacts with Schreiber when he received an inmate screening on August 19, 1991 at the Crawford County Jail, in which it is recorded that his behavior did not suggest the risk of suicide. According to that report, he denied ever seeing a psychiatrist and also denied previously planning or attempting suicide. In another health intake screening on March 21, 1992, the booking officer, who happened to be defendant Kelly, noted that Schreiber's behavior did not suggest the risk of suicide. Schreiber again denied any psychiatric treatment or inclinations toward suicide. On February 3, 1993, Schreiber was again examined when incarcerated for a probation violation. Here, too, the deputy answered "No" to the question of whether Schreiber's behavior suggested the need for immediate psychological referral. On November 17, 1994, when Schreiber was transferred back from Florida, his transfer summary indicated no psychiatric problems. At his intake upon arrival, Schreiber was asked if he had ever contemplated suicide, to which he had answered "yes." When asked in follow-up whether he was contemplating suicide, Schreiber stated that he was not. On December 6, 1994, while incarcerated in the jail, Schreiber asked to see a mental health counselor. The only other records of that incident show that the community health agency was called at 3:20 p.m. and arrived at 3:58 p.m. to see Schreiber. Finally, during his jail incarceration on prison detainer on April 2, 1999, the booking officer indicated that Schreiber's behavior did not suggest the risk of suicide. At that interview, Schreiber denied any recent psychiatric problems and denied ever having planned or attempted suicide.
The record also contains reports of two examinations conducted by MDOC personnel. In September and October of 1992, Schreiber was seen by psychologist David W. Halstead. Following these sessions, Halstead completed a psychological evalutaion report in which he indicated that Schreiber scored low in his ego strength tests and Halstead opined that persons who score in this fashion "may have periods during which they become obsessed with suicide ideation." Schreiber was also evaluated by Z. Yang, a psychologist, at the behest of the MDOC on January 6, 1995. Dr. Yang evaluated his mental status and observed no evidence of suicidal ideation or depression. No therapy was recommended. The plaintiff was also evaluated prior to being recommended for the tether program. The prison institutional file indicated no suicide ideation or tendencies.
On March 5, 2000, three days before the suicide, Foguth was contacted by Schreiber, who wanted to speak to him. The plaintiff did not explore this contact in Foguth's deposition. but it was described by Foguth in a statement to the Crawford County Sheriff's Department as follows:
MR. FOGUTH further stated that on Sunday March 5th, Mr. Schreiber contacted him at home and wanted to talk to him. MR. FOGUTH then advised him to come in and see him on Monday. On Monday, March 6, at approximately 4:30 PM MR. SCHREIBER came into MR. FOGUTH's office to talk to him. MR. FOGUTH then talked to MR. SCHREIBER about work and going back to school. MR. FOGUTH then believed that Mr. Schreiber was somewhat depressed and called mental health for him. MR. FOGUTH was then given a hotline number. MR. FOGUTH then gave MR. SCHREIBER the number and had him call it while he was sitting there. MR. SCHREIBER was greeted by a recording and gave his number so that they could get back with him. MR. FOGUTH stated that he felt MR. SCHREIBER was depressed but never gave any indication that he was contemplating suicide.
Pl.'s Resp. to Def. Foguth's M. Summ. J, Ex. L.
Melissa Sluiter was the crisis counselor who responded to Schreiber's contact with the mental health agency. She talked to John Schreiber on March 7, 2000, the day before Schreiber was detained and committed suicide. Sluiter signed an affidavit which reads in relevant part as follows:
I began working for North Central Community Mental Health (NCCMH) in December, 1998. . . . The Alpha Center is the point of entry for clients who use NCCMH services. The Alpha phone line is the daytime crisis line and the referral line where clients are referred or refer themselves for our services. Information about NCCMH services, referrals to other resources in the community, and information about mental illness may also be given over this line. A client who calls the Alpha line will have information gathered from them by the therapist, the client[']s needs are triaged (a preliminary assessment is done), and appointments are scheduled based on the needs of the client. There are three categories of needs, which are routine, urgent, and emergent. An urgent need is one that requires a client to be seen within 48 hours. An emergent need is one that requires the client to be seen within two hours.
As an Alpha Center therapist I also completed the initial mental health assessments of clients, assigned cases to CMH workers based on the clients['] needs, made treatment recommendations, and completed daytime and after hours crisis appointments.
I received a telephone call on the NCCMH Alpha line from John Schreiber on March 7, 2000, at 4:40 PM. I talked to John Schreiber on the Telephone until 5:23 PM. During the telephone call I followed our standard practice of triaging his needs, assessing his safety, making notes of our conversation on the NCCMH computerized screening form, and scheduling an appointment. After talking to John Schreiber I printed the screening form and signed it, so that a copy could be placed in his NCCMH client file. . . .
During my 43 minutes of telephone conversation with John Schreiber on March 7, 2000, I determined that he was not at risk of self-harm and that his needs were routine. As a result, I scheduled him for an intake appointment at 3:00 p.m. on March 20, 2000. I confirmed with him that he had the NCCMH crisis phone numbers for after hours and daytime calls and encouraged him to call either if he needed between March 7 and his appointment on March 20, 2000.
Affidavit of Melissa Sluiter ¶¶ 2-5. Sluiter also stated that at Schreiber's request, she telephoned Foguth's office on the morning of March 8, 2000 to inform him of the appointment on the 20th, but that she never talked to Foguth himself.
The plaintiff filed a three-count first amended complaint against Crawford County, its Sheriff's Department, Sheriff David Lovely, Deputy Sheriff Michael Kelly, and Corrections Officer Frank Foguth. Count one of the amended complaint alleges a common law claim for gross negligence against the defendants, and also states that a claim "arises under . . . the Michigan Constitution." Count two alleges a violation of civil rights under 42 U.S.C. § 1983 based on the Fourth, Eighth and Fourteenth Amendments. Count three is directed at Crawford County and alleges that the holding cell was not properly equipped as such and failed to meet MDOC design guidelines, rendering the public building "defective."
Defendant Foguth has filed a motion to dismiss the Fourth and Fourteenth Amendment claims, the gross negligence claim, the Michigan constitutional claim, and the Eighth Amendment claim insofar as it is directed at Foguth in his official capacity. Foguth has also filed a motion for summary judgment seeking dismissal of the Eighth Amendment claim against him in his individual capacity. The other defendants have filed a motion for summary judgment as to all counts. The plaintiff agrees that he cannot prevail on any state constitutional claims, see Jones v. Powell, 462 Mich. 329, 335-37, 612 N.W.2d 423, 426-27 (2000), and that the Eleventh Amendment bars his damage claim against Foguth in his official capacity. The parties also agree that although the exact custodial status of John Schreiber at the time of the suicide is unclear (he was technically in MDOC custody, but he was temporarily detained pending an investigation while on tether status), thus potentially casting doubt on whether the Fourth or Eighth Amendment provides the governing law, the answer is immaterial since in cases of custodial suicides, pretrial detainees and prisoners are governed by the same standard of deliberate indifference to serious medical needs, essentially an Eighth Amendment standard. Heflin v. Stewart County, Tenn., 958 F.2d 709, 714 (6th Cir. 1992). Finally, the Court observes that Foguth's motion to dismiss the gross negligence claim under Fed.R.Civ.P. 12(b) is addressed to the question of causation, which requires an analysis of the facts. Accordingly, the Court will address it under the summary judgment standards of Rule 56. See Fed.R.Civ.P. 12(b) ("If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. . . .").
II.
A motion for summary judgment under Fed.R.Civ.P. 56 presumes the absence of a genuine issue of material fact for trial. The Court must view the evidence and draw all reasonable inferences in favor of the non-moving party, and determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The "[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (internal quotes omitted).
A fact is "material" if its resolution affects the outcome of the lawsuit. Lenning v. Commercial Union Ins. Co., 260 F.3d 574, 581 (6th Cir. 2001). "Materiality" is determined by the substantive law claim. Boyd v. Baeppler, 215 F.3d 594, 599 (6th Cir. 2000). An issue is "genuine" if a "reasonable jury could return a verdict for the nonmoving party." Henson v. Nat'l Aeronautics Space Admin., 14 F.3d 1143, 1148 (6th Cir. 1994) (quoting Anderson, 477 U.S. at 248). Irrelevant or unnecessary factual disputes do not create genuine issues of material fact. St. Francis Health Care Centre v. Shalala, 205 F.3d 937, 943 (6th Cir. 2000). When the "record taken as a whole could not lead a rational trier of fact to find for the nonmoving party," there is no genuine issue of material fact. Simmons-Harris v. Zelman, 234 F.3d 945, 951 (6th Cir. 2000). Thus a factual dispute which "is merely colorable or is not significantly probative" will not defeat a motion for summary judgment which is properly supported. Kraft v. United States, 991 F.2d 292, 296 (6th Cir. 1993); see also Int'l Union, United Auto., Aerospace and Agric. Implement Workers of Am. v. BVR Liquidating, Inc., 190 F.3d 768, 772 (6th Cir. 1999).
The party bringing the summary judgment motion has the initial burden of in forming the district court of the basis for its motion and identifying portions of the record which demonstrate the absence of a genuine dispute over material facts. Mt. Lebanon Personal Care Home, Inc. v. Hoover Univ., Inc., 276 F.3d 845, 848 (6th Cir. 2002). The party opposing the motion then may not "rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact" but must make an affirmative showing with proper evidence in order to defeat the motion. Street v. J.C. Bradford Co., 886 F.2d 1472, 1479 (6th Cir. 1989). A party opposing a motion for summary judgment must designate specific facts in affidavits, depositions, or other factual material showing "evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252. If the non-moving party, after sufficient opportunity for discovery, is unable to meet his or her burden of proof, summary judgment is clearly proper. Celotex Corp., 477 U.S. at 322-23.
The party who bears the burden of proof must present a jury question as to each element of the claim. Davis v. McCourt, 226 F.3d 506, 511 (6th Cir. 2000). Failure to prove an essential element of a claim renders all other facts immaterial for summary judgment purposes. Elvis Presley Enters., Inc. v. Elvisly Yours, Inc., 936 F.2d 889, 895 (6th Cir. 1991).
A.
The plaintiffs' federal cause of action is based on 42 U.S.C. § 1983, under which the plaintiffs must establish that a person acting under color of state law deprived the plaintiffs of a right secured by the Constitution or laws of the United States. Berger v. City of Mayfield Heights, 265 F.3d 399, 405 (6th Cir. 2001). Local governmental institutions are considered "persons" for the purpose of Section 1983, but municipalities cannot be held responsible for a constitutional deprivation unless there is a direct causal link between a municipal policy or custom and the alleged constitutional deprivation. The plaintiff "must identify the policy, connect the policy to the city itself and show that the particular injury was incurred because of the execution of that policy." Garner v. Memphis Police Dep't, 8 F.3d 358, 363-64 (6th Cir. 1993). Proof of a single incident of unconstitutional activity may be sufficient to impose liability. but not unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy. City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985).
Under the Eighth Amendment, prisoners have a constitutional right to medical care. Estelle v. Gamble, 429 U.S. 97, 103 (1976). That right is violated when corrections officials are deliberately indifferent to the prisoner's serious medical needs. Id. at 104. A detainee's psychological needs may constitute serious medical needs, especially when they result in suicidal tendencies. Horn v. Madison County Fiscal Court, 22 F.3d 653, 660 (6th Cir. 1994). It should be noted, however, that prisoners have no general right to be correctly screened for suicidal tendencies. Comstock v. McCrary, 273 F.3d 693, 702 (6th Cir. 2001); Danese v. Asman, 875 F.2d 1239, 1244 (6th Cir. 1989) ("It is one thing to ignore someone who has a serious injury and is asking for medical help; it is another to be required to screen prisoners correctly to find out if they need help.").
Eighth Amendment claims have both an objective and a subjective component. To satisfy the objective component, the plaintiff must allege that the medical need asserted is "sufficiently serious." Farmer v. Brennan, 511 U.S. 825, 834 (1994). "To satisfy the subjective component, the plaintiff must allege facts which, if true, would show that the official being sued subjectively perceived facts from which to infer substantial risk to the prisoner, that he did in fact draw the inference, and that he then disregarded that risk." Comstock, 273 F.3d at 703 (citing Farmer, 511 U.S. at 837). The Comstock Court reiterated the Supreme Court's caution 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 our cases be condemned as the infliction of punishment." Id. (citing Farmer, 511 U.S. at 838). Nonetheless, a custodial official may "not escape liability if the evidence showed that he merely refused to verify underlying facts that he strongly suspected to be true, or declined to confirm inferences of risk that he strongly suspected to exist." Farmer, 511 U.S. at 843 n. 8. Officials also may be shown to be deliberately indifferent to serious medical needs without evidence of conscious intent to inflict pain. Molton v. City of Cleveland, 839 F.2d 240, 243 (6th Cir. 1988).
However, the conduct for which liability attaches must be more culpable than mere negligence; it must demonstrate deliberateness tantamount to intent to punish. Knowledge of the asserted serious needs or of circumstances clearly indicating the existence of such needs, is essential to a finding of deliberate indifference.Horn, 22 F.3d at 660.
Guided by these standards, the Court finds that the plaintiff has not established a constitutional claim against either defendant Kelly or Foguth. Deputy Kelly testified, without rebuttal, that he had no notion that Schreiber was contemplating suicide or that he was any sort of suicide risk. Kelly never talked to Schreiber, and claims, again without rebuttal, that he "buzzed" Foguth in without realizing that he had a prisoner with him. Kelly informed his sergeant that Schreiber had been placed in the cell, but did nothing more because he was not permitted to leave his station. Furthermore, despite the plaintiff's many theories about how Schreiber could have been supervised, the plaintiff does not explain how Kelly, a deputy. was capable of rearranging county-wide police assignments to supervise an inmate not known to need special supervision. See Jacobs v. West Feliciana Sheriff's Dep't, 228 F.3d 388, 398 (5th Cir. 2000).
The plaintiff's suggestion that Crawford County personnel should have been aware of psychological evaluations performed by the MDOC carries no weight, since such a contention describes at most a negligence standard. Jails are under no constitutional obligation to probe the files for the health histories of their inmates at other facilities. See Hott v. Hennepin County, Minn., 260 F.3d 901, 906 (8th Cir. 2001). Furthermore, even if Kelly should have known about Schreiber's history, there is no evidence from which a reasonable trier of fact could conclude that he did. Without specific knowledge of Schreiber's suicidal tendencies, no deliberate indifference can be proven. See Horn, 22 F.3d at 660-61.
Although Foguth's case is closer, the plaintiff has not demonstrated that Foguth actually drew the inference that Schrieber was suicidal. Unlike the Crawford County defendants, Foguth apparently would have had access to the 1992 and 1995 mental examinations performed by Drs. Halstead and Yang. However, the plaintiff makes more of this evidence than it deserves. The Halstead report discusses how people with low ego strength can become obsessed with suicide. That report, however, was in 1992. In 1995, Schreiber was examined again, this time by Dr. Yang, who observed no evidence of suicidal ideation or depression. Even if these reports would have put a prudent person on inquiry notice that the plaintiff himself was suicidal, the years between those reports and the incident in this case (8 and 5 years, respectively) render the inference that Schreiber was still suicidal in 2000 tenuous. See Lambert v. City of Dumas, 187 F.3d 931, 937-38 (8th Cir. 1999) (doubting that reasonable finder of fact could conclude that detainee's swallowing of a crack pipe three years prior indicated that the detainee had ongoing suicidal intentions).
It is true that Foguth recommended some counseling to Schreiber two days before this incident, but he has testified that he believed Schreiber's need was for general personal concerns. The social worker to whom Foguth referred Schreiber, who works regularly with mental health emergencies, in fact met with him the next day and found no evidence of any suicidal tendencies and made another appointment with Schreiber two weeks in the future. The plaintiff points to the fact that Schreiber was clearly "upset" about going to jail, but fails to explain why this reaction should have put Foguth on notice of suicidal tendencies.
Furthermore, Foguth had already been through this same procedure before with Schreiber. In 1999, Schreiber was briefly detained after being suspected of violating his tether conditions. Schreiber received a hearing, as was his right, was exonerated of wrongdoing, and was promptly returned to his tether. Although Foguth obviously suspected Schreiber of wrongdoing, this scenario was one he and Schreiber had been through before without incident.
To establish a constitutional violation, it is not sufficient to offer evidence of "a significant risk that [the custodian] should have perceived but did not." Comstock, 273 F.3d at 703. Actual knowledge "of the asserted serious needs or of circumstances clearly indicating the existence of such needs, is essential to a finding of deliberate indifference." Molton, 839 F.2d at 243. The record does not present a material fact question on this essential element as to defendants Kelly and Foguth.
The claim for municipal liability against the county and the sheriff in his official capacity has been framed by the motion papers somewhat differently than by the pleadings, in that the plaintiff now focuses on the failure-to-train allegations and abandons the failure-to-supervise theory. The record does not support the latter claim in any event. Although in limited circumstances the Sixth Circuit permits supervisors to be personally liable for rights violations perpetrated by their employees, liability is imposed only when the supervisor either participated directly in the violating act or "at least implicitly authorized, approved or knowingly acquiesced in the unconstitutional conduct of the offending subordinate." Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984). Section 1983 liability cannot be grounded solely on respondeat superior. Taylor v. Michigan Dep't. of Corr., 69 F.3d 76, 80-81 (6th Cir. 1995). Nor can a supervisor be held liable solely for a failure to act or for being aware of the misconduct. Bass v. Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999). Active unconstitutional behavior is required. Id. There is no evidence in this record of any such conduct on the part of Sheriff Lovely or any other supervisor.
In order to prevail on a Section 1983 failure-to-train claim, the plaintiff must show that the "training program is inadequate to the tasks that officers must perform; that the inadequacy is the result of the city's deliberate indifference; and that the inadequacy . . . actually caused the plaintiff's injury." Hill v. McIntyre, 884 F.2d 271, 275 (6th Cir. 1989). The Supreme Court recognized municipal liability under 42 U.S.C. § 1983 for failure to train employees in City of Canton, Ohio v. Harris, 489 U.S. 378 (1989). In that case, a detainee brought suit against the City of Canton alleging, among other claims, that jail officials were inadequately trained to deal with her medical needs. Id. at 381. On review, the Supreme Court recognized that a municipality can be held liable for inadequate police training under Section 1983 "only where [the] failure to train amounts to deliberate indifference to rights of persons with whom police come into contact." Id. at 388. The mere fact that a few officers may be inadequately trained is not sufficient to demonstrate municipal liability, as the shortcomings could be caused by officer inattention or poor administration. Id. at 391. Allegations that the officers in question could have been better trained are also insufficient. Id. Rather, the "failure to train [must] reflect a deliberate or conscious choice by a municipality." Id. at 389. The Court recognized two fact patterns in which a citizen could state a claim for failure to train. First, the nature of the officers' duties could be such that "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" in not providing training. Id. at 390. The Court isolated the need to apprehend fleeing felons and the possession of firearms by officers as indicating to a "moral certainty" that proper training would be required. Id. n. 10. Second, the police may have so often violated constitutional rights that the need for further training must have been "plainly obvious to the city policymakers, who, nevertheless, are `deliberately indifferent' to the need." Id; see also id. at 397 (O'Connor, J., concurring) (finding that such behavior constitutes "tacit authorization" of the officers' conduct).
The Sixth Circuit has applied this standard on several occasions. In Walker v. Norris, 917 F.2d 1449 (6th Cir. 1990), the court affirmed the dismissal of a wrongful death claim where guards failed to open a prison door to assist an inmate who was being stabbed by another inmate, concluding that the complaint alleged only that the guards could have been better trained. In Beddingfield v. City of Pulaski, Tenn., 861 F.2d 968 (6th Cir. 1988), the court set aside a plaintiff's jury verdict in a jail suicide case where the plaintiff had demonstrated that the jail's officers had not been sent to state suicide-training programs and that much better procedures were available to prevent suicides. Such a showing, the court found, demonstrated at best only insufficient training and possible negligence, not a deliberate choice by the municipality to disregard an obvious risk.
In Molton, the court rejected the plaintiff's failure-to-train theory against the City of Cleveland. holding that inadequate training alone does not violate an inmate's constitutional rights:
There are essentially two problems with plaintiff's argument. First, plaintiff never adduced evidence of a definitive City policy, custom, or usage which was an affirmative link, the moving force that animated the behavior — the acts of commission or omission — of the police officers that resulted in the constitutional violations alleged. The Supreme Court authorities, specifically Tuttle and Pembaur, require proof of a deliberate and discernible city policy to maintain an inadequately trained police department, or nonsuicide-proof, inadequately designed and equipped jails; not mere speculation that such matters are "inherently matters of city policy." A second problem with plaintiff's theory is that the policies she identifies describe mere negligence. The City's failure to build a suicide-proof jail cell, and its inadequate training of its police force, may well be acts of negligent omission, but they have not been shown to be the result of municipal policy: "a deliberate choice to follow a course of action . . . made from among various alternatives by the official or officials responsible for establishing formal policy with respect to the subject matter in question." Pembaur [v. Cincinnati], 475 U.S. [469,] 483 [(1986)].Molton, 839 F.2d at 246.
The plaintiff in this case can fare no better than Molton. There is no evidence of inadequate training on the part of the municipality. In fact, the plaintiff acknowledges that a policy was in place to remove belts and shoelaces from detainees, and contends that this policy was violated by individual officers. The evidence establishes that the policy existed and generally followed, which contradicts an inference of deliberate indifference toward potentially suicidal inmates. The plaintiff does make some specific allegations of inadequate training, and they appear in the last sentence of the response brief: "There was a lack of CPR training and certification, and a lack of training to meet the American Corrections Association standards." The plaintiff does not confine these allegations to particular individuals, nor does he explain the significance of these standards or how such training would have saved John Schreiber's life.
The Court concludes that the plaintiff has not established a constitutional violation against any of the defendants, and therefore court two of the amended complaint will be dismissed.
B.
The plaintiff's state law negligence claim against Crawford County for premises liability is barred by the doctrine of governmental immunity found generally in Mich. Comp. Laws § 691.1407, unless an exception to that statute applies. The plaintiff contends that the applicable exception in this case is contained in Mich. Comp. Laws § 691.1406, which states:
Governmental agencies have the obligation to repair and maintain public buildings under their control when open for use by members of the public. Governmental agencies are liable for bodily injury and property damage resulting from a dangerous or defective condition of a public building if the governmental agency had actual or constructive knowledge of the defect and, for a reasonable time after acquiring knowledge, failed to remedy the condition or to take action reasonably necessary to protect the public against the condition.
The Michigan Supreme Court has cautioned that "the duty imposed by the public building exception relates to dangers actually presented by the building itself." Hickey v. Zezulka, 439 Mich. 408, 422, 487 N.W.2d 106, 112 (1992) (citing Reardon v. Dep't of Mental Health, 430 Mich. 398, 415, 424 N.W.2d 248 (1988)). Thus, "the purpose of the public building exception was to promote the maintenance of safe public buildings, not necessarily safety in public buildings." Id. (citation omitted). As a result, "where proper supervision would have offset any shortcomings in the configuration of the room, the public building exception does not apply." Id. (citation omitted). In order to state a claim under the public building exception, the plaintiff must show:
(1) a governmental agency is involved, (2) the public building in question was open for use by members of the public, (3) a dangerous or defective condition of the public building itself exists, (4) the governmental agency had actual or constructive knowledge of the alleged defect, and (5) the governmental agency failed to remedy the alleged defective condition after a reasonable period or failed to take action reasonably necessary to protect the public against the condition after a reasonable period.Brown v. Genesee County Bd. of Comm'rs, 464 Mich. 430, 435, 628 N.W.2d 471, 474 (2001). Brown added a sixth requirement: the party seeking relief must be a member of the public. Id.
In Hickey, the plaintiff brought suit against Michigan State University, alleging, among other things, that the cell in which its decedent had been temporarily confined, and in which he hung himself to death, was defective. The plaintiff proffered three theories of defect, all of which were rejected by the court. First, the plaintiff alleged that the building's poor design preventing proper supervision from taking place. The court found that this avenue was little more than an attempt to repackage the claim that better supervision would have prevented the decedent's injuries, and therefore was not cognizable under the statute. 439 Mich. at 423-24, 487 N.W.2d at 112-13. Second, the plaintiff alleged that the building was not sufficiently updated with security cameras and special detoxification cells. This, too, was rejected, as the public building exception does not require government offices to have the most modern offices or latest technology. Id. at 424, 487 N.W.2d at 113. Finally, the plaintiff alleged that the cell's heating unit and metal brackets were dangerous or defective because they were improperly placed and apparently conducive to aiding suicide. Although the plaintiff had potentially demonstrated a negligent design, it still had not proven the cell to be defective in light of its intended purpose. The court noted that the holding cell was never used for more than a few hours at a time. Also, it noted the consensus of the experts at trial that it is impossible to make any jail cell "suicide-proof." Id. at 426, 487 N.W.2d at 114. Hence, the holding cell, and the building in which it was housed, was not defective.
Brown limited the ability of incarcerated persons to seek relief under the public building exception. By specifically providing protection for "members of the public," the Michigan legislature implicitly denied such protection to those who are not members of the public. 464 Mich. at 438, 628 N.W.2d at 475-76. Because the plaintiff in Brown was a prison inmate who had slipped and fallen in a prison shower, he could not take advantage of the public building exception:
Jail inmates are not members of the public for purposes of the public building exception. Unlike a person who enters a jail, e.g., to meet with an inmate, make a delivery, or apply for a job, an inmate does not visit a jail as a potential invitee. Instead, inmates are legally compelled to be there. Inmates thus are not within the class of persons the Legislature intended to protect front defects in public buildings.Id. at 439, 628 N.W.2d at 476.
As a result of the governing Michigan law, the plaintiff's public building defect claim in this claim is twice cursed. On the question of defect, the case is virtually indistinguishable from Hickey, where the court found no defect as a matter of law. Although some portions of the Sheriff's Department offices are considered "public buildings," a jail cell is not one of them. Schreiber was, no doubt, "legally compelled" to be there, and thus Brown provides an additional basis compelling rejection of this claim. Count three will therefore be dismissed.
C.
The plaintiff's remaining claims directed against defendants Kelly and Foguth allege gross negligence as a means of avoiding governmental immunity. According to Mich. Comp. Laws § 691.1407(2), governmental employees "1) acting during the course of [their] employment and . . . within the scope of [their] authority; [and] 2) acting in good faith" are entitled to immunity from liability for injuries they cause. Ross v. Consumers Power Co. (on rehearing), 420 Mich. 567, 633-34, 363 N.W.2d 641, 667-68 (1984). However, immunity will not apply unless "[t]he employee's . . . conduct does not amount to gross negligence that is the proximate cause of the injury or damage." Mich. Comp. Laws § 691.1407(2)(c).
The thrust of defendant Kelly's summary judgment motion is that the record does not contain evidence of gross negligence on his part, and that his conduct was not the proximate cause of the suicide. Defendant Foguth, on the other hand, focuses solely on the causation issue, claiming that in a case where the decedent takes his own life, a custodian's conduct cannot be "the" proximate cause as a matter of law.
Michigan's governmental immunity statute defines "gross negligence" as "conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results." Id. Although the Michigan Court of Appeals has refused to rule out the possibility that a failure to act could itself rise to the level of gross negligence, see Tallman v. Markstrom, 180 Mich. App. 141, 144, 446 N.W.2d 618, 620 (1989), the majority of cases in which liability has been found involve actions where the risk of harm to a particular individual was clear, and where the defendant obviously made a conscious choice to disregard that harm. See, e.g., Kostrzewa v. City of Troy, 247 F.3d 633, 642-43 (6th Cir. 2001) (holding that claim for gross negligence was stated where officer decided to apply handcuffs that would be too tight and then drove recklessly with the plaintiff in the back set of the police car, further injuring him); Soper v. Hoben, 195 F.3d 845, 851-52 (6th Cir. 1999) (holding that no claim for gross negligence could be stated for failure to have a policy protecting at-risk children and for failing to supervise them properly); Adams v. Metiva, 31 F.3d 375, 388 (6th Cir. 1994) (holding that claim for gross negligence was stated where officer sprayed mace in arrestee's face long after he had been blinded and incapacitated); Johnson v. Wayne County, 213 Mich. App. 143, 159, 540 N.W.2d 66, 73 (1995) (claim for gross negligence stated where deputies incarcerated juror in contempt of court in a cell with the alleged murderer on trial, and then shackled them together).
The Michigan Supreme Court has made clear, however, that gross negligence does not require deliberate indifference to a known risk. See Jennings v. Southwood, 446 Mich. 125, 521 N.W.2d 230 (1994). In that case, the court was asked to determine the meaning of the terms "gross negligence" and "wilful misconduct" as they were used in the Emergency Medical Services Act (EMSA), Mich. Comp. Laws § 333.20701 et seq. The court first explained that the legislature did not intend to use the term "gross negligence" in the common-law sense, which required only ordinary negligence by a defendant, but only after the plaintiff had first been negligent herself. Id. at 129-131, 521 N.W.2d at 232-33. That definition of gross negligence, which was little more than a synonym for the "last clear chance" doctrine, was a common law device designed to ameliorate the harsh effects of contributory negligence; once Michigan abolished contributory negligence in favor of comparative fault in 1979, however, the traditional definition of gross negligence no longer served any purpose. Id. at 130-32, 521 N.W.2d at 233-34. Furthermore, because the entire point of EMSA was to protect emergency workers by immunizing them from ordinary negligence, to apply the traditional "gross negligence" definition would render the entire scheme a nullity. Id. at 132-33, 521 N.W.2d at 233-34. Left without the common law definition, the Michigan Supreme Court engrafted the statutory definition of the term from the governmental immunity act. Mich. Comp. Laws § 691.1407(b)(2), and in the ensuing gloss found the term to be quite different from willful misconduct, which it defined as acting with the intention to harm another, and from wanton misconduct, which describes the conduct of' one who knows that his actions are almost certain to harm another, but is indifferent to whether harm results or not. Id. at 140-42, 521 N.W.2d at 237-38.
The lesson of Jennings is that although gross negligence is more aggravated than ordinary negligence, it still falls short of willful misconduct (in which there is an intent to cause harm) and wanton misconduct (where the actor proceeds with an action the actor knows is likely to harm another). The cases previously discussed in which gross negligence was found deal more with conduct more accurately characterized as willful or wanton under Jennings, not merely grossly negligent. of course, because gross negligence involves less culpable conduct than either of these two mental states, being willful or wanton almost necessarily includes a grossly negligent act under the governmental immunity act's statutory definition. Thus one need not have the level of culpability outlined in Kostrzewa, Adams, or Johnson to be grossly negligent. Instead, to be grossly negligent — as the phrase itself suggests — is to flaunt or otherwise disregard one's duty of care in a particularly callous manner. See also St. Onge v. Detroit Mackinac Ry. Co., 116 Mich. App. 128, 131, 321 N.W.2d 865, 866 (1982) (finding gross negligence to exist when a defendant fails "to exercise [the] degree of care that even a careless individual would employ under the circumstances"). The determination of gross negligence, then, will depend on the facts of each case, requiring the fact finder to consider the circumstances in which the incident took place, the relationship between the tortfeasor and the victim, any information the tortfeasor had that should have put him on heightened alert, and any other factor that a reasonable finder of fact could take into account in finding that the disregard of one's duty was particularly aggravated, callous, or disturbing.
The Michigan Supreme Court observed in Hickey that absent a special relationship, there is no legal duty to aid or protect another person from injury. However, "[t]he custodial relationship between [a jailer] and [a detainee] is such a special relationship that gives rise to the duty to give aid and protect from harm." 439 Mich. at 438, 487 N.W.2d at 119. Defendant Kelly had no information that Schreiber was a suicide risk, that he had requested mental health counseling three days earlier, or that he was lodged in violation of departmental policy with his belt and shoelaces in his possession. Further, the plaintiff does not refute Kelly's showing that there was no evidence then available to any Crawford County jail personnel suggesting that the plaintiff had suicidal tendencies. Schreiber was examined no less than five times over an eight-year period by Crawford County jail personnel, and each time was evaluated for suicide risks. As such, Schreiber's suicide was unforeseeable to defendant Kelly, and he is entitled to summary judgment on this claim.
The evidence as to defendant Foguth is different. Foguth himself described Schreiber as "somewhat depressed" when he saw him three days before he was taken into custody, and he put Schreiber in touch with a mental health counselor. He also had information, remote as it was, that Schreiber had expressed thoughts consistent with suicidal ideation in the distant past. Of course, these factors by themselves would not constitute gross negligence. However, coupled with additional evidence, viewed in the light most favorable to the plaintiff, that Foguth disregarded the instruction to "bring [Schreiber] around to the front" so he could be properly booked and admitted by sheriff's department personnel, his knowledge that Kelly was the only officer on duty and would not "get to him" without delay, and his awareness of the apparently immutable custom that for safety reasons prisoners are not to be lodged with their with their belts and shoelaces, Foguth's act of placing Schreiber in a cell that was not covered with video equipment and leaving him there in the possession of his belt and shoelaces so Foguth could attend his lunch period undisturbed, could be considered aggravated, callous, and disturbing.
But Foguth argues that even his gross negligence cannot be "the" proximate cause of the suicide because Schreiber took his own life. Indeed, in Robinson v. City of Detroit, 462 Mich. 439, 613 N.W.2d 307 (2000), the Michigan Supreme Court overruled prior decisional law to the contrary and held that the phrase "the proximate cause," as it is used in Mich. Comp. Laws § 691.1407(b)(2), should be interpreted to mean "the one most immediate, efficient and direct cause preceding an injury, not a proximate cause." 462 Mich. at 462, 613 N.W.2d at 319 (emphasis added). It is important to note that the supreme court did not state that the defendant's gross negligence must be the sole cause, but rather it must be the one most directly related to the event. Thus, if there is more than one proximate cause of an event, and each can be said to contribute equally to bringing it about, then the plaintiff will not have carried her burden. Likewise, if another cause supercedes the gross negligence of a government actor, the plaintiff's case must fail.
In jail suicide cases, however, the Michigan Supreme Court has held that the question of causation cannot be divorced from the question of foreseeability. In Hickey, the court held that the custodial officer, Zezulka, could be accountable for Hickey's death by suicide based on ordinary negligence under the pre-1986 version of the state's governmental immunity act. On the issue of causation, the court noted:
[O]n the facts of this case, a finding by the jury that Zezulka's failure to remove Hickey's belt, and her failure to properly supervise him in the DPS holding cell, constituted negligence would be nonsensical if Hickey's subsequent intentional act of harming himself was not reasonably foreseeable by Zezulka. When a defendant owes a duty of ordinary care to give aid to and to protect an individual from harm because of the special relationship between the parties, and the plaintiff's s claim is that the defendant was negligent in failing to prevent or in creating a stimulus for the plaintiff's own act that intervened to cause harm, it cannot be said that the intervening act is a superseding cause of his injury. Thus, by negligently enhancing the likelihood of Hickey's intervening act of suicide, and by failing to protect Hickey from the very risk she created, Zezulka cannot be relieved from liability because the risk she created actually came to fruition.439 Mich. at 439-440, 487 N.W.2d at 119-120.
Foguth does not argue here that Schreiber's intentional act of hanging himself is a superseding cause, but the Court believes that similar considerations come into play. As noted above, Foguth was aware that Schreiber was at least troubled and needed professional psychological care. If Foguth's duty was to take reasonable measures to prevent the very act that occurred, and the act of suicide was foreseeable under the circumstances, then a jury could conclude that Foguth's act of confining Schreiber in a private place, out of view of jail personnel, with the means to bring about the result which the unobserved security measures were intended to prevent, was "the one most immediate, efficient and direct cause" of the suicide. Foguth, therefore, is not entitled to judgement in his favor on the common law gross negligence claim against him as a matter of law.
III.
The plaintiff has failed to come forth with evidence to create fact questions on all the claims contained in his amended complaint save the gross negligence claim against defendant Frank Foguth.
Accordingly, it is ORDERED that the motion for summary judgment by defendants, Crawford County, the Crawford County Sheriff's Department, David Lovely and Michael Kelly, [dkt #53] is GRANTED.
It is further ORDERED that the motion for summary judgment on the plaintiff's Eighth Amendment claim by defendant, Frank Foguth, [dkt #56] is GRANTED.
It is further ORDERED that the motion to dismiss by defendant, Frank Foguth, [dkt #52] is GRANTED IN PART AND DENIED IN PART.
It is further ORDERED that counts two and three of the first amended complaint are DISMISSED WITH PREJUDICE in their entirety against all defendants, and count one of the first amended complaint is DISMISSED WITH PREJUDICE as to all defendants except Frank Foguth.