Opinion
1:20-cv-1079
07-23-2024
RHONDA HEHRER, as Personal Representative of the Estate of Joseph Hehrer, deceased, Plaintiff, v. CLINTON COUNTY, et al., Defendants.
HON. JANET T. NEFF, JUDGE.
REPORT AND RECOMMENDATION
RAY KENT UNITED STATES MAGISTRATE JUDGE
Plaintiff Rhonda Hehrer, Personal Representative for the Estate of Joseph Hehrer, deceased, filed a complaint seeking relief related to the death of Joseph Hehrer. Compl. (ECF No. 1). The relevant pleading before the Court is plaintiff's third amended complaint (ECF No. 59).
For purposes of this report, the Court will refer to plaintiff Rhonda Hehrer as “plaintiff”, and to the decedent Joseph Hehrer as “Mr. Hehrer” or “Hehrer”.
This report and recommendation (R&R) addresses plaintiff's claims against defendants Clinton County, Clinton County Sheriff Lawrence Jerue (“Sheriff Jerue”), Clinton County Jail Administrator Thomas Wirth (“Capt. Wirth”), and the following jail personnel: Sgt. Sarah Faggion (sometimes referred to as “Faggions”); Sgt. James Burdick; Sgt. Chad Bashore; Sgt. Richard Stout; and Officer Corey Becker. These defendants are referred to collectively as the “Clinton County defendants.” The other remaining defendants are: Advanced Correctional Healthcare, Inc. (“ACH”); Dr. Daryl Tyrone Parker; Nurse Wendy Lynn Freed; and Nurse Dawn Thelen. Plaintiff also listed “unknown parties” Officers Jane Does 1-2, and “unknown parties” Officers John Does 1-5. This matter is now before the Court on the Clinton County defendants' motion for summary judgment (ECF No. 118).
I. Doe defendants
The third amended complaint refers to seven unknown “Doe” defendants who apparently worked at the Jail. See Third Amend. Compl. at PageID.966. An unknown or “Doe” defendant listed in a complaint is not a party to a lawsuit. Rather, “Doe defendants are routinely used as stand-ins for real parties until discovery permits the intended defendants to be installed.” Hindes v. FDIC, 137 F.3d 148, 155 (3rd Cir. 1998) (internal quotation and citation omitted). Such defendants should be dismissed if the plaintiff fails to identify them during discovery:
With regard to the unnamed Defendants, discovery is now closed, and Plaintiff has failed to amend his Complaint to identify these Defendants by name. In general, the use of unnamed defendants is not favored in the federal courts. See Colle v. Brazos County, Tex., 981 F.2d 237, 243 (5th Cir.1993). The mere naming of a person by use of a fictitious title does not make that person a party to a lawsuit, and it does not prevent the entry of final judgment. Nagle v. Lee, 807 F.2d 435, 440 (5th Cir.1987). The appropriate treatment of Doe defendants is to delay taking action with regard to them until plaintiff has had an adequate time in discovery to identify them by name. Plaintiff has had that opportunity, but he has failed to properly identify the unnamed Defendants. Those Defendants will therefore be dismissed without prejudice. See Brown v. Our Lady of Lourdes Med. Ctr., 767 F.Supp. 618, 621 (D.N.J.1991), aff'd, 961 F.2d 207 (3d Cir.1992).Haddad v. Fromson, 154 F.Supp.2d 1085, 1093 (W.D. Mich. 2001), overruled on other grounds, Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 613 (2002). As in Haddad, discovery is closed and plaintiff has failed to identify the Doe defendants. Accordingly, defendants “Officers Jane Does 1-2” and “Officers John Does 1-5” should be dismissed.
II. Allegations
Mr. Hehrer's autopsy report concluded that he died from “Multisystem organ dysfunction due to diabetic ketoacidosis.” Autopsy (ECF No. 118-28, PageID.2369). The gist of plaintiff's claim is that Mr. Hehrer died because he was not treated for this condition while detained at the Clinton County Jail (“Jail”). Plaintiff set forth the following allegations against the Clinton County defendants.
On January 18, 2019, Mr. Hehrer was involved in a motor vehicle accident. Third Amend Compl. at PageID.969. Authorities issued Hehrer a misdemeanor citation for operating under the influence of drugs, second offense, and failure to wear a seatbelt. Id.
On January 23rd, Clinton County Sheriff Deputies arrested Mr. Hehrer and booked him in the Jail for a probation violation and DUI related to the motor vehicle accident. Id. at PageID.970. On that date, non-party Officer Debra Lott completed a Jail Medical Screen History Report. Id.
On February 5th, Nurse Freed reviewed the report, completed a “Medical History and Health Appraisal,” and noted that Hehrer had no history of diabetes. Id.
About one month later, on or about March 1st, Mr. Hehrer began exhibiting signs of illness. Id. at PageID.971.
On or about March 4th, Mr. Hehrer called his sister stating “ ‘I've been sick as fuck since Friday,' ‘my body's weak as shit' and ‘I can't hold any food down.' ” Id. He also said that “I went and seen a nurse [sic], but they wanted to charge a shit load for meds, so I'm just going to fight it out.” Id.
On March 5th, Mr. Hehrer submitted a sick call request to jail staff complaining of “Fever, queasiness, headaches in and out, heartburn constantly throughout the day; have puked a couple of times.” Id.
On March 6th, at approximately 0032 hours, non-party Officer Hungerford noted that Mr. Hehrer was moved to “rev 4, 3” for medical observation. Id. Nurse Freed evaluated Hehrer at 0900 hours and noted his complaint that “Haven't been able to hold things down since Saturday [3/2/19]” and that “Patient brought to medical Rec per officers.” Id. at PageID.971-972. Nurse Freed discussed Hehrer's situation with Dr Parker, who saw him later that day at 1800 hours. Id. at PageID.972. “Dr. Parker noted that Mr. Hehrer had suffered nausea and vomiting for four (4) days and had lost fourteen (14) pounds since February 5, 2019.” Id. at PageID.973. Hehrer was removed from medical observation and returned to “M Dorm” at 2026 hours. Id.
On March 7th, “video surveillance demonstrates multiple inmates showing concern for Mr. Hehrer and checking on him throughout the day.” Id. At 1830 hours, an inmate flagged down defendant John Doe, who spoke to inmates and Hehrer. Id. After John Doe left, “Hehrer lifted up his shirt to show his fellow inmates multiple quarter-sized blisters on his back that had the presence of pus.” Id. Hehrer also had “had deep yellow bruises on his body.” Id. at PageID.973-974. At about 2015 hours, Hehrer and another inmate retrieved John Doe and Hehrer was transferred back to medical observation. Id. at PageID.974. At 2022 hours Officer Jane Doe walked past Hehrer's cell as he vomited. Id. At 2024 hours Hehrer was transferred to “recv [receiving] 2, 1”. Id.
Sgt. Stout is the only Clinton County defendant referenced in the March 7th incidents:
57. At 2048 hours on March 7, 2019, an “informational” incident report (# 1900034) was completed by Officer Cyle Perrien (19752), and recorded by Defendant Sergeant Stout in the log notes at approximately 2108, noting the following:
On the above date while conducting a round, Officer Roy was approached by inmate Mr. Hehrer, Joseph at approximately 1820 hrs. Inmate Mr. Hehrer stated he has been throwing up. Inmate Mr. Hehrer stated he did not want to go up front. At approximately 2030 hours inmate Mr. Hehrer came to control center and spoke to Officer's Perrien and VanDeusen. Inmate Mr. Hehrer stated his kidneys hurt, it hurt to pee, he was having stabbing pain and that he couldn't keep down any food or water. Officer VanDeusen called Sgt Stout and advised him of inmate Mr. Hehrer's symptoms.
Inmate Mr. Hehrer was escorted up to Receiving by Officer VanDeusen.
Inmate Mr. Hehrer was brought up to booking. His vitals were: 100 bpm, 110/78 BP, 98.4 temp. Mr. Hehrer appeared to be fine, no sweating or showing signs of pain. Officer Perrien stated she found that meds for anti-nausea, heartburn, and a few other meds were ordered for Mr. Hehrer yesterday for the same symptoms. Due to not having a protocol sheet for this particular situation, she called a Dr.
Dr. [Joseph W.] Mashni answered at 2030. After hearing the symptoms and vitals, his orders were to give 8 mg of Zofran from stock, tell Mr. Hehrer to drink plenty of water, and if the nausea goes away in a hour or two to give 2 Tylenol. Mr. Hehrer was given 8 mg Zofran and placed in REC-1 for OBS.PageID.974-975.
On March 8th, Nurse Freed and Dr. Parker treated Mr. Hehrer. None of the Clinton County defendants are referenced on that date. Id. at PageID.975-981.
The Court notes that plaintiff refers to Officers Jane and John Doe. PageID.975-981.
On March 9th, Mr. Hehrer's medical condition deteriorated and he was transferred to a hospital. Id. at PageID.981-988. The allegations primarily involve Nurse Thelen, Jane Doe and John Doe. The only Clinton County defendants involved in that day were Officer Becker, Sgt. Burdick, and Capt. Wirth.
Sometime around 0903 hours, Nurse Thelen looked in on Mr. Hehrer “and appeared to be shaking her head side to side.” Id. at PageID.986.
98. Defendant Officer Becker then proceeded to call 911.
a. When 911 asked Defendant Officer Becker what was going on, he responded “uh, um, um, what's going on with him, [Defendant Nurse Thelen]?”
b. Defendant Officer Becker began to explain that Mr. Hehrer was “not taking up fluids, [and] puking up black stuff.”
c. Defendant Nurse Thelen elaborated to Central Dispatch that Mr. Hehrer had “dark brown vomit, jaundice, not eating, not urinating, no bowel movements, can't get up, [Mr. Hehrer could] hardly swallow, choke” and she further stated that Mr. Hehrer was “really in trouble” “and he's thrown up a lot.”
d. Defendant Officer Becker indicated that they were going to need a road deputy.
e. When Central Dispatch asked Defendant Officer Becker what Mr. Hehrer's age was, Defendant Officer Becker took approximately thirty seconds to look up the date of birth for an individual that was an inmate since approximately January and who had allegedly been under medical observation for multiple days. When it became apparent that Defendant Officer Becker was unable to provide Mr. Hehrer's age, dispatch stated she only needed an approximate age. However, Defendant Officer Becker responded, “I don't even know how old [Mr. Hehrer] is.”
f. Defendant Nurse Thelen then stated, “I'm going to guess he's in his early twenties”
g. While Defendant Officer John Doe indicated that Mr. Hehrer received a PR bond, Defendant Officer Becker told Dispatch that they no longer needed road patrol.
h. As further evidence of Clinton County Defendants' callous disregard to Mr. Hehrer and his condition, Defendant Officer Becker laughed at the situation when Central Dispatch asked if Mr. Hehrer was completely alert by responding, “no, hehehe, no.”
i. Video surveillance shows that Mr. Hehrer was lying motionless.
j. When Central Dispatch asked if Mr. Hehrer was breathing normally, Defendant Officer Becker responded, “eh light breathing I guess.”
k. When Central Dispatch asked if the bleeding was serious, Defendant Officer Becker initially stated “eeeee, no.” However, Defendant Nurse Thelen spoke over him and stated, “yeah, it's coming out of his nose and mouth.”
l. When Central Dispatch asked if Mr. Hehrer had a bleeding disorder or was on blood thinners, Defendant Officer Becker stated, “I don't know if it's blood, it's just black stuff.”Id. at PageID.986-988.
Sgt. Burdick noted the following on a critical incident report:
On this date and time, the jail nurse was tying [sic] to check inmate Mr. Hehrer's vitals because of his condition. The nurse informed me that he needs to be transported to the hospital ASAP.
Called Central Dispatch to have Clinton area sent to the jail. Clinton area arrived at approx. 09:10, departed the jail at 09:19 in route to Sparrow Main.
Called Magistrate Dan Skorich and got a PR bond for inmate Mr. Hehrer. Capt. Wirth was called and informed of inmate Mr. Hehrer situation.Id. at PageID.985 at ¶ 97. y.
C. Count IV
In Count IV, plaintiff claims that the individual Clinton County defendants failed to address Mr. Hehrer's medical condition at the Jail. Plaintiff alleged that “Defendants Sergeant Sarah Faggions, Sergeant James Burdick, Sergeant Chad Bashore, Sergeant Richard Stout, Officer Corey Becker, Officers Jane Does 1-2, and Officers John Does 1-5” violated Mr. Hehrer's rights under the Eighth and Fourteenth Amendments by being deliberately indifferent to his serious medical needs, i.e., “hyperglycemia, hypothermia, diabetic ketoacidosis, and/or septic shock, were objectively serious, as they were diagnosed by a medical professional and/or were so obvious that even a lay person would easily recognize the necessity for medical attention.” Id. at PageID.1014-1015. While plaintiff alleged that defendants violated Mr. Hehrer's rights under both the Eighth and Fourteenth Amendments, the parties agree that Hehrer was a pretrial detainee and that his constitutional claims arise from the Fourteenth Amendment. See Clinton County defendants' Brief (ECF No. 118, PageID.1837); Plaintiff's Response (ECF No. 130, PageID.9692).
D. Count V
Count V appears to allege two claims under the Fourteenth Amendment.
1. Policy-makers Clinton County, Sheriff Jerue, and Capt. Wirth
Plaintiff claims that three defendants, the “final policy-makers” Clinton County, Sheriff Jerue, and Capt. Wirth, failed to develop adequate policies at the Jail:
183. That Defendants Clinton County, Clinton County Sheriff Lawrence Jerue, and Jail Administrator Thomas Wirth, as the final policy-makers for the county, failed to adequately train, staff, report, supervise, monitor, investigate and/or discipline their correction officers and/or medical services personnel, with respect to hyperglycemia, hypothermia, diabetic ketoacidosis, and/or septic shock signs, symptoms, monitoring, and/or indications for medical intervention, leading to the failures as set forth by way of illustration in the Factual Allegations and General Allegations Sections above.
184. That the Jail Official Defendants further adopted, promulgated, encouraged, condoned, and/or tolerated official customs, policies, practices, and/or procedures, including such for failing to train and/or supervise their employees/agents, and were the final policy-makers within the Sheriff Department and/or the Clinton County Jail.Third Amend. Compl. at PageID.1019-1020.
2. Supervisory failure of defendants Clinton County, Sheriff Jerue, Capt. Wirth, Sgt. Faggion, Sgt. Burdick, Sgt. Bashore, and Sgt. Stout
Finally, plaintiff claims that these supervisors violated Mr. Hehrer's rights under the Fourteenth Amendment by failing to supervise, monitor and train their agents and employees. Id. at PageID.1018-1019. The only employee defendant identified is Officer Becker, the employee who called 911 on March 9th.
The Court notes that while plaintiff also referred to the supervision of Jane Does 1-2 and John Does 1-5, these unidentified individuals are not parties to this lawsuit.
E. Remedies
Plaintiff seeks a judgment in excess of $75,000.00 exclusive of costs, interest, and attorney's fees. Id. at PageID.1023.
III. Discussion
A. Legal standard
Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, which “provides a civil cause of action for individuals who are deprived of any rights, privileges, or immunities secured by the Constitution or federal laws by those acting under color of state law.” Smith v. City of Salem, Ohio, 378 F.3d 566, 576 (6th Cir. 2004). To state a § 1983 claim, a plaintiff must allege two elements: (1) a deprivation of rights secured by the Constitution and laws of the United States, and (2) that the defendant deprived him of this federal right under color of law. Jones v. Duncan, 840 F.2d 359, 360-61 (6th Cir. 1988); 42 U.S.C. § 1983.
To state a claim for inadequate medical care under the Fourteenth Amendment, a pretrial detainee must first allege an objectively serious medical need. See Trozzi v. Lake Cnty., Ohio, 29 F.4th 745, 757-58 (6th Cir. 2002). Until recently, the Sixth Circuit “analyzed Fourteenth Amendment pretrial detainee claims and Eighth Amendment prisoner claims ‘under the same rubric.' ” Greene v. Crawford Cnty., 22 F.4th 593, 605 (6th Cir. 2022) (quoting Brawner v. Scott Cnty., 14 F.4th 585, 591 (6th Cir. 2021)). However, in Kingsley v. Hendrickson, the Supreme Court differentiated the standard for excessive force claims brought by pretrial detainees under the Fourteenth Amendment's Due Process Clause from those brought by convicted prisoners under the Eighth Amendment. 576 U.S. 389, 392-93 (2015). Kingsley left unanswered the question of “whether an objective standard applies in other Fourteenth Amendment pretrial-detainment context[s].” Brawner, 14 F.4th at 592.
Subsequently, in Brawner, the Sixth Circuit modified the second prong of the deliberate indifference test applied to pretrial detainees to require only recklessness. Id. at 592, 596. At issue in Brawner was a pretrial detainee's claim for deliberate indifference to medical needs. The Sixth Circuit held that to demonstrate deliberate indifference, “[a] pretrial detainee must prove ‘more than negligence but less than subjective intent - something akin to reckless disregard.'” Id. at 596-97 (quoting Castro v. County of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016) (en banc)); see also Helphenstine v. Lewis Cnty., Ky., 60 F.4th 305, 31617 (6th Cir. 2023) (affirming that Kingsley, as interpreted by Brawner, required courts to “lower the subjective component from actual knowledge to recklessness”). A pretrial detainee must prove that the defendant acted “deliberately (not accidentally), [and] also recklessly in the face of an unjustifiably high risk of harm that is either known or so obvious that it should be known.” Brawner, 14 F.4th at 596 (citation and quotation marks omitted).Jones v. Linsia, No. 1:24-cv-336, 2024 WL 1596843 at *7 (W.D. Mich. April 12, 2024).
B. Count IV (Individual defendants)
The issue for the Court is whether the individual defendants violated Mr. Hehrer's Fourteenth Amendment rights, i.e., whether each defendant acted deliberately and also recklessly in the face of an unjustifiably high risk of harm to Hehrer that was either known or so obvious that it should be known. “Personal involvement is necessary to establish section 1983 liability.” Murphy v. Grenier, 406 Fed.Appx. 972, 974 (6th Cir. 2011). See Rogan v. Menino, 175 F.3d 75, 77 (1st Cir. 1999) (“It is axiomatic that the liability of persons sued in their individual capacities under section 1983 must be gauged in terms of their own actions.”). Here, plaintiff has failed to meet her burden with respect to the individual Clinton County defendants named in Count IV.
1. Sgt. Bashore
Plaintiff did not allege that Sgt. Bashore had any particular interaction with Mr. Hehrer. On March 6, 2019, Sgt. Bashore worked at the Jail from 6:00 a.m. to 6:00 p.m. Bashore Aff. (ECF No. 118-30, PageID.2394). On March 7th, Sgt. Bashore also worked from 6:00 a.m. to 6:00 p.m. Id. During that time, Bashore deferred to medical staff. Id. Bashore stated that on March 6th, healthcare staff was actively evaluating Mr. Hehrer's medical condition, and that on March 7th Hehrer was back in M Dorm “because Dr. Parker had evaluated and cleared him the evening before.” Id.
Plaintiff does not address any particular act or omission by Sgt. Bashore on March 6th or March 7th. See Plaintiff's Response (ECF No. 130, PageID.9677-9680). Rather, plaintiff made a conclusory statement regarding Sgt. Bashore and some of the other defendants stating,
See Plaintiff's Response at PageID.9676-9684 (“The County Defendants' Acts and Omissions Relative to Joseph Hehrer”).
Plaintiff relies on extensive video evidence that Sergeants Faggion (now Dedyne), Bashore, Stout and Burdick each worked just feet away from [Mr. Hehrer] when he
was in the booking area and decided to walk by him countless times without effectively noting his condition or acting on his condition.Id. at PageID.PageID.9689. Plaintiff has not established facts to support her claim that Sgt.
Bashore acted with deliberate indifference to Mr. Hehrer's medical needs. Accordingly, Sgt. Bashore should be granted summary judgment on this claim.
2. Sgt. Faggion
Plaintiff did not allege that Sgt. Faggion had any particular interaction with Mr. Hehrer. Sgt. Faggion worked overnight shifts which spanned four different days: from 6:00 p.m. on March 5th to 6:00 a.m. on March 6th; and, from 6:00 p.m. on March 8th to 6:00 a.m. on March 9th. Dedyne Aff. (ECF No. 118-32, PageID.2404). Sgt. Faggion was involved with Hehrer as follows:
The Court notes that Sarah Faggion is now known as Sarah Dedyne. See Dedyne Aff. at PageID.2404.
5. The night of March 5, to March 6, 2019, Mr. Hehrer alerted one of the officers under my supervision that he had been vomiting. I ordered him brought up to medical observation that night.
6. The night of March 8 to March 9, 2019, I was aware Joseph Hehrer was in medical observation, had been vomiting, and was being actively treated and monitored by Advanced Correctional Healthcare medical staff.
7. I was not aware there was anything life-threatening about his condition.
8. I have no advanced medical training, and do not have any say in the treatment provided to inmates by medical staff employed by Advanced Correctional Healthcare assigned to provide inmate healthcare at the Jail.
9. I deferred to the medical professionals regarding Mr. Hehrer's care.
10. I had no reason to believe that the medical professionals' diagnoses or treatment plan was erroneous or unreasonable.Id. at PageID.2404-2405. Plaintiff does not address any particular act or omission by Sgt. Faggion on March 5th, 6th, 8th or 9th. See Plaintiff's Response at PageID.9676-9678, 9681-9684.
On March 5th/6th Sgt. Faggion knew that Hehrer had been vomiting and ordered him brought up to medical observation. On March 8th/9th Faggion knew that Hehrer was in medical observation, that he had been vomiting, and that he was being treated by medical staff. Sgt. Faggion relied on medical staff's treatment of Hehrer's condition. “Generally, non-medically trained officers do not act with deliberate indifference to a detainee's medical needs when they reasonably defer to a medical professional's diagnosis or treatment.” Grote v. Kenton County, Kentucky, 85 F.4th 397, 412 (6th Cir. 2023) (internal quotation marks and brackets omitted). Even “[a] mistaken, albeit reasonable, belief that such deference to a provider is warranted will not rise to the level of deliberate indifference.” Id.
As this Court explained:
Administrative or custody officials who have no training or authority to supervise healthcare officials cannot be held liable for those officials' inadequate care. See Winkler v. Madison Cnty., 893 F.3d 877, 895 (6th Cir. 2018) (finding that custody officer was entitled to rely on medical provider's judgment); Smith v. Cnty. of Lenawee, 505 Fed.Appx. 526, 532 (6th Cir. 2012) (“[I]f a prisoner is under the care of medical experts . . . a non-medical prison official will generally be justified in believing that the prisoner is in capable hands.” (quoting Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004))); see also Newberry v. Melton, 726 Fed.Appx. 290, 296-97 (6th Cir. 2018) (same); Cuco v. Fed. Med. Ctr.-Lexington, No. 05-CV-232-KSF, 2006 WL 1635668, at *21-22 (E.D. Ky. June 9, 2006) (citing Birrell, 867 F.2d at 959) (holding that prison administrative officials were not liable for overseeing and second-guessing care given by medical officials).Armour v. Horton, No. 2:21-cv-204, 2022 WL 354521 at *6 (W.D. Mich. Feb. 7, 2022).
In summary, Sgt. Faggion did not act with deliberate indifference to Mr. Hehrer's medical condition. She deferred to the medical staff's treatment of this condition and did not interfere with that treatment. Accordingly, Sgt. Faggion should be granted summary judgment on this claim.
3. Sgt. Stout
Sgt. Stout worked overnight shifts which spanned four different days: from 6:00 p.m. on March 6th to 6:00 a.m. on March 7th; and, from 6:00 p.m. on March 7th to 6:00 a.m. on March 8th. Stout Aff. (ECF No. 123, PageID.3685-3687). Sgt. Stout was involved with Mr. Hehrer as follows:
5. The night of March 6-7, 2019, Dr. Parker had cleared Mr. Hehrer to return to the M Dorm. He was not in the medical observation cells, and no illness or vomiting was reported that night.
6. The night of March 7-8, 2019, Mr. Hehrer approached officers under my command and advised them that he had been vomiting again.
7. They brought him up to medical observation, reviewed his medication record, and took his vitals.
8. I called on-call Nurse Practitioner Joseph Mashni and sought direction.
9. Mashni directed me to administer 8 mg of Zofran to Mr. Hehrer, to continue to monitor his condition, and administer Tylenol if the vomiting subsided.
10. An officer under my direction administered the Zofran per Mashni's instructions.
11. A true and correct copy of the Incident Report written by Officer Cyle Perrien and me detailing this incident is attached hereto as Exhibit 1.
12. I was not aware there was anything life-threatening about Mr. Hehrer's condition.
13. I have no advanced medical training, and do not have any say in the treatment provided to inmates by the medical staff employed by Advanced Correctional Healthcare assigned to provide inmate healthcare at the Jail.
14. I deferred to the medical professionals regarding Mr. Hehrer's care.
15. I had no reason to believe that the medical professionals' diagnoses or treatment plan was erroneous or unreasonable.Id. at PageID.3686-3687. Plaintiff does not address any particular act or omission by Sgt. Stout on March 6th, 7th, or 8th. See Plaintiff's Response at PageID.9677-9682.
Plaintiff has not established facts to support that Sgt. Stout acted with deliberate indifference to Mr. Hehrer's medical condition. Nothing was reported to Sgt Stout on the night of March 6th/7th. On the night of March 7th/8th, after being advised that Hehrer was vomiting, Sgt. Stout called the nurse practitioner and had an officer administer the prescribed medication. Sgt. Stout relied on medical staff's instructions for treating Mr. Hehrer condition, followed those instructions, and did not interfere with the treatment. Sgt. Stout properly relied on medical staff's treatment of Hehrer's condition. See Grote, 85 F.4th at 412; Armour, 2022 WL 354521 at *6. Accordingly, Sgt. Stout should be granted summary judgment on this claim.
4. Sgt. Burdick
Sgt. Burdick worked from 6:00 a.m. to 6:00 p.m. on both March 8th and March 9th. Burdick Aff. (ECF No. 118-31, PagID.2398). Sgt. Burdick had the following interaction with Mr. Hehrer:
4. On March 8, 2019, Advanced Correctional Healthcare Staff was actively evaluating Joseph Hehrer's medical condition.
5. On the morning of March 9, 2019, I observed Mr. Hehrer multiple times until Nurse Thelen went into his cell to examine him.
6. I spoke to him multiple times, asking if he was eating, and relayed the information to Nurse Thelen.
7. When Nurse Thelen advised that Mr. Hehrer needed to be transported to the hospital, I immediately obtained a personal recognizance bond.Id. Sgt Burdick further stated that,
9. I was not aware there was anything life-threatening about Mr. Hehrer's condition, or that he needed acute medical attention before Nurse Thelen alerted me of the need to trans him to the hospital.
10. I have no advanced medical training, and do not have any say in the treatment provided to inmates by the medical staff employed by Advanced Correctional Healthcare assigned to provide inmate healthcare at the Jail.
14. I deferred to the medical professionals regarding Mr. Hehrer's care.
15. I had no reason to believe that the medical professionals' diagnoses or treatment plan was erroneous or unreasonable.Id. at PageID.2399. Sgt. Burdick's affidavit included a copy of the March 9, 2019 Critical Incident Report (CIR) which he wrote regarding the incident. Id. at PageID.2398, 2401. Plaintiff does not address any particular act or omission by Sgt. Burdick on March 8th or 9th. Plaintiff's Response at PageID.9681-9684.
As discussed, plaintiff referenced the CIR in the third amended complaint. See discussion, supra.
Plaintiff has not established facts to support that Sgt. Burdick acted with deliberate indifference to Mr. Hehrer's medical condition. Sgt. Burdick relied on Nurse Thelen's evaluation of Hehrer's condition on the morning of March 9th and followed her instructions “that he needs to be transported to the hospital ASAP.” See CIR (March 9, 2023) at PageID.2401. Sgt. Burdick relied on medical staff's instructions for treating Mr. Hehrer condition, followed those instructions, and did not interfere with the treatment. Sgt. Burdick properly relied on medical staff's treatment of Hehrer's condition. See Grote, 85 F.4th at 412; Armour, 2022 WL 354521 at *6. Accordingly, Sgt. Burdick should be granted summary judgment on this claim.
5. Officer Becker
Officer Becker worked from 6:00 a.m. to 6:00 p.m. on both March 8th and March 9th. Becker Aff. (ECF No. 123, PageID.3691-3693). Officer Becker was involved in Mr. Hehrer's situation as follows:
4. On March 8, 2019, I was assigned to work the back of the Jail, not the booking area where Joseph Hehrer was being housed. I therefore was not assigned to monitor him that day, and had no knowledge of his condition.
5. On the morning of March 9, 2019, I was assigned to the booking area.
6. I could see directly into the observation cell Mr. Hehrer was housed in from my position in the officer booking cage through a full-length window.
7. I did not see Mr. Hehrer vomiting blood, or appearing to be in any kind of distress, or in any need of immediate medical attention. Had I observed any of this, I would have alerted medical staff immediately.
8. I was aware that both Sergeant Burdick and Nurse Thelen were on-site and actively interacting with and monitoring Mr. Hehrer that morning.
9. When Nurse Thelen advised that Mr. Hehrer needed to be transported to the hospital, I immediately called for an ambulance.
10. I was not aware there was anything life-threatening about Mr. Hehrer's condition, or that he needed acute medical attention before Nurse Thelen alerted me of the need to transport him to the hospital.
11. I have no advanced medical training, and do not have any say in the treatment provided to inmates by the medical staff employed by Advanced Correctional Healthcare assigned to provide inmate healthcare at the Jail.
12. I deferred to the medical professionals regarding Mr. Hehrer's care.Id. Plaintiff does not address any particular act or omission by Officer Becker on March 8th or 9th. Plaintiff's Response at PageID.9681-9684.
As discussed, supra, plaintiff's third amended complaint recited extensive portions of Officer Becker's 911 call. Plaintiff appears to claim that Becker was deliberately indifferent to Mr. Hehrer's serious medical needs because Becker was not able to answer all of the dispatcher's questions. Becker was not a medical professional and was not in a position to diagnose Hehrer's condition. Nor was he acquainted with Hehrer's medical history on that day. Becker followed Nurse Thelen's instruction to call 911. The fact that Becker could not provide answers to all of the dispatcher's questions does not establish that he acted deliberately and also recklessly in the face of an unjustifiably high risk of harm to Mr. Hehrer. Accordingly, Officer Becker should be granted summary judgment on this claim.
6. Qualified immunity
The Clinton County defendants seek qualified immunity. See Defendants' Brief (ECF No. 118, PageID.1835-1837). However, defendants do not develop this argument beyond citing a legal standard. Id. As the Sixth Circuit explained, this type of cursory presentation forfeits the argument:
Officers claim that their three mentions of qualified immunity were enough to raise the issue. But “an issue is deemed forfeited . . . if it is merely mentioned and not developed.” United States v. Clark, 469 F.3d 568, 569-70 (6th Cir. 2006); see also United States v. Sandridge, 385 F.3d 1032, 1035-36 (6th Cir. 2004) (“It is not sufficient for a party to mention a possible argument in the most skeletal way, leaving the court to . . . put flesh on its bones.”) (internal quotations and citation omitted). And to raise qualified immunity, the “[d]efendants bear the initial burden of coming forward with facts to suggest that they were acting within the scope of their discretionary authority.” Rich v. City of Mayfield Heights, 955 F.2d 1092, 1095 (6th Cir. 1992). We have previously instructed district courts to “withhold judgment on issues not fully developed by the briefs or in the record. Issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.” Sandridge, 385 F.3d at 1035 (quoting Popovich v. Cuyahoga Cnty. Ct. of Common Pleas, 276 F.3d 808, 823 (6th Cir. 2002) (Ryan, J. concurring in part and dissenting in part)). Because Officers only mentioned qualified immunity in their motion for summary judgment in a perfunctory manner, devoid of applied facts or developed argumentation, they forfeited qualified immunity.Cockrun v. Berrien County, Michigan, No. 23-1291, 2024 WL 1828305 at *2 (6th Cir. April 26, 2024). Accordingly, defendants' motion for summary judgment on the basis of qualified immunity should be denied.
C. Count V (Policy)
1. Clinton County is a proper defendant
Defendants contend that Clinton County is not a proper party in this case because “[o]peration of the County Jails falls under the jurisdiction and control of the County Sheriff, not the Counties. MCL 51.75, M.C.L. § 51.281”, and “[t]he County Sheriff is an independent Constitutional Officer and elected official. MICH. CONST. 1963, Art. VII, § 4.” Clinton County Defendants' Brief at PageID.1851. The Court disagrees.
Clinton County employs all of the Clinton County defendants. As this Court previously explained:
The sheriff's department does not exist as a separate legal entity; it is simply an agent of the county. Vine v. Cnty. of Ingham, 884 F.Supp. 1153, 1158 (W.D. Mich. 1995) (citing Hughson v. Cnty. of Antrim, 707 F.Supp. 304, 306 (W.D. Mich. 1988) and Bayer v. Almstadt, 185 N.W.2d 40, 44 (Mich. Ct. App. 1970))....
[I]n matters pertaining to the conditions of the jail and to the operation of the deputies, the sheriff is the policymaker for the county. Mich. Comp. Laws § 51.75 (sheriff has the “charge and custody” of the jails in his county); Mich. Comp. Laws § 51.281 (sheriff prescribes rules and regulations for conduct of prisoners); Mich. Comp. Laws § 51.70 (sheriff may appoint deputies and revoke appointments at any time); Kroes v. Smith, 540 F.Supp. 1295, 1298 (E.D. Mich. 1982) (the sheriff of “a given county is the only official with direct control over the duties, responsibilities, and methods of operation of deputy sheriffs” and thus, the sheriff “establishes the policies and customs described in Monell”). Houghton County and Defendant Sheriff McLean, however, may not be held vicariously liable for the actions of county employees under § 1983. See Connick v. Thompson, 563 U.S. 51, 60 (2011); City of Canton v. Harris, 489 U.S. 378, 392 (1989); Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). Instead, a county is liable only when its official policy or custom causes the injury. Connick, 563 U.S. at 60.Sauvola v. Michigan Department of Corrections, No. 2:20-cv-198, 2021 WL 346245 at *4 (W.D. Mich. Feb. 2, 2021).
Under Monell, Clinton County's liability is limited to whether its official policies or customs caused Mr. Hehrer's injuries. In Griffith v. Franklin County, Kentucky, 975 F.3d (2020), the Sixth Circuit summarized § 1983 municipal liability:
“A municipality may not be held liable under § 1983 on a respondeat superior theory-in other words, ‘solely because it employs a tortfeasor.' ” D'Ambrosio v. Marino, 747 F.3d 378, 388-89 (6th Cir. 2014) (quoting Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). Instead, a plaintiff must show that “through its deliberate conduct, the municipality was the ‘moving force' behind the injury alleged.” Alman v. Reed, 703 F.3d 887, 903 (6th Cir. 2013) (quoting Bd. of Cty. Comm'rs v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997)). A plaintiff does this by showing that the
municipality had a “policy or custom” that caused the violation of her rights. Monell, 436 U.S. at 694, 98 S.Ct. 2018. And when a plaintiff seeks to hold a municipality liable on the basis of a facially lawful municipal action which led an employee to violate her rights, she “must demonstrate that the municipal action was taken with ‘deliberate indifference' as to its known or obvious consequences.” Brown, 520 U.S. at 407, 117 S.Ct. 1382.
There are four methods of proving a municipality's illegal policy or custom. The plaintiff may prove “(1) the existence of an illegal official policy or legislative enactment; (2) that an official with final decision making authority ratified illegal actions; (3) the existence of a policy of inadequate training or supervision; or (4) the existence of a custom of tolerance or acquiescence of federal rights violations.” Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013) (citing Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005)).Griffith, 975 F.3d at 580-81 (emphasis in original).
2. Capt. Wirth
As discussed, Sheriff Jerue is Clinton County's policymaker for the operation of Clinton County's Jail. See Sauvola, 2021 WL 346245 at *4. While plaintiff identified Capt. Wirth in her claim regarding Jail policies, Wirth is not the policymaker. Accordingly, Capt. Wirth should be granted summary judgment on Count V.
3. No underlying constitutional violation from current policy
Clinton County has no municipal liability because plaintiff has not demonstrated that its individual employees, Sgt. Bashore, Sgt. Faggion, Sgt. Stout, Sgt. Burdick, and Officer Becker, violated Mr. Hehrer's constitutional rights. “[W]here there has been no showing of individual constitutional violations . . . there can be no municipal liability.” Baker v. City of Trenton, 936 F.3d 523, 535 (6th Cir. 2019). See Griffith, 975 F.3d at 581 (“The County cannot be liable unless [plaintiff] establishes an underlying constitutional violation.”). Accordingly, Clinton County should be granted summary judgment on Count V.
4. Plaintiff failed to show that Clinton County's policy is unconstitutional
a. Deference to medical provider
Plaintiff contends that “the only department policy pertaining to inmate healthcare at the jail specifically, and as its main point, tries to delegate all authority to medical providers in direct contradiction to the ACH Contract.” Plaintiff's Response at PageID.9675 (emphasis in original). The referenced policy is the Sheriff's Department Order on “Inmate Health CareMedical Authority” (eff. 02 SEPT 2013) (“Inmate Health Care Policy”):
It is the policy of the Clinton County Sheriff's Office to provide necessary medical, dental, and psychiatric care for persons incarcerated. All medical, psychiatric and dental matters involving medical judgment are the sole province of the responsible physician and dentist or other qualified health professional.
The County and Clinton County Sheriff's Office shall contact [sic] with medical authority to deliver necessary medical, dental and psychiatric care for persons incarcerated.
All medical, psychiatric and dental matters involving medical judgment are the sole province of the responsible physician and dentist or other qualified health professional.Inmate Health Care Policy (ECF No. 130-12, PageID.9978).
Clinton County had a contract with ACH to provide healthcare to the inmate population at the Jail. Plaintiff's Response (ECF No. 130, PageID.9669). See “Agreement for the Provision of Inmate Health Services Clinton County, Michigan” (signed on March 22 and 23, 2017 with “1st date of service TBD”) (ECF No. 130-1, PageID.9713, 9718, 9722). Under the agreement, ACH agreed to “provide staffing coverage as requested by the SHERIFF,” which includes “onsite licensed practical nursing coverage for fifty-six (56) hours per week on a schedule approved by the SHERIFF”; “[a] physician and/or MID-LEVEL PRACTITIONER will visit the FACILITY weekly or as otherwise agreed by the SHERIFF and ACH, and will stay until all work is completed”; and “[t]he physician and/or MID-LEVEL PRACTITIONER will be available by telephone to the FACILITY and medical staff on an on-call basis, seven (7) days per week, twenty-four (24) hours per day.” Id. at PageID.9715-9716.
The County did not violate Mr. Hehrer's constitutional rights by having a policy which involved consisted of entering into a contract to provide medical care for the Jail prisoners and deferring to the medical judgment of the contracted physicians and other qualified medical professionals. “[I]t is not unconstitutional for municipalities and their employees to rely on medical judgments made by private medical professionals responsible for prisoner care.” Winkler v. Madison County, 893 F.3d 877, 901 (6th Cir. 2018) (citing Graham ex rel. Estate of Graham v. County of Washtenaw, 358 F.3d 377, 384 (6th Cir. 2004) (internal quotation marks and brackets omitted). In short, “a municipality may constitutionally contract with a private medical company to provide healthcare services to inmates.” Winkler, 893 F.3d at 901. Accordingly, Sheriff Jerue and Clinton County should be granted summary judgment on this Monell policy claim.
b. Failure to train non-medical personnel
Plaintiff also contends that Clinton County had an unconstitutional policy for operating its Jail because the non-medical Jail personnel were not trained on how to deal with complex medical situations like Mr. Hehrer experienced. See Third Amend. Compl. ¶ 184, PageID.1020. Plaintiff appears to take the position that this policy violated Mr. Hehrer's constitutional rights because “[i]t was unreasonable for jail administration to expect correctional officers to perform medical monitoring, and yet this expectation was systemic, a normal procedure and occurrence at Clinton County Jail.” Plaintiff's Brief at PageID.9707. Contrary to plaintiff's contention, there was no such policy. As discussed, in § III.C.4.a, supra, the County's policy was to have non-medical jail personnel defer to the trained medical personnel from ACH. Accordingly, Sheriff Jerue and Clinton County should be granted summary judgment on this Monell policy claim.
D. Count V (Supervisory Failure)
Finally, plaintiff alleged that Clinton County and individual defendants Sheriff Jerue, Capt. Wirth, Sgt. Faggion, Sgt. Burdick, Sgt. Bashore, and Sgt. Stout failed to supervise, monitor and train Officer Becker.
a. Clinton County
Plaintiff's supervisory failure claim against Clinton County should be dismissed. As discussed, plaintiff's § 1983 claim against the County must be based on an unconstitutional policy.
The county may not be held vicariously liable for the actions of its employees under § 1983. See Connick v. Thompson, 563 U.S. 51, 60 (2011); City of Canton v. Harris, 489 U.S. 378, 392 (1989); Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). Instead, a county is liable only when its official policy or custom causes the injury. Id.Gibbs v. Miller, No. 1:19-cv-557, 2019 WL 3773845 at *3 (W.D. Mich. Aug. 12, 2019). See Griffith, 975 F.3d at 580 (a municipality may not be held liable under § 1983 on a respondeat superior theory solely because it employed a tortfeasor). Accordingly, the County should be granted summary judgment on the supervisory failure claim.
b. Sheriff Jerue, Capt. Wirth, Sgt. Faggion, Sgt. Burdick, Sgt. Bashore, and Sgt. Stout
Plaintiff cannot hold these supervisory personnel liable for the alleged actions of Officer Becker simply because they supervised Becker. “This court has held that liability cannot be imposed on a supervisor under § 1983 based on the theory of respondeat superior.” Winkler, 893 F.3d at 898-99.
But a supervisor may be liable under § 1983 if he “abandon[s] the specific duties of his position . . . in the face of actual knowledge of a breakdown in the proper workings of the department.” Taylor v. Mich. Dep't of Corr., 69 F.3d 76, 81 (6th Cir. 1995) (quoting Hill v. Marshall, 962 F.2d 1209, 1213 (6th Cir. 1992)). This liability, however, exists only where some “execution of the supervisors' job
function result[s] in [the p]laintiff's injury.” Gregory v. City of Louisville, 444 F.3d 725, 752 (6th Cir. 2006). In other words, the supervisor must have abdicated his specific job responsibility, with the “active performance of the [supervisor's] individual job function . . . directly result[ing] in the[ ] constitutional injury.” Id. (emphasis in original).Winkler, 893 F.3d at 898-99. Here, there is no basis for plaintiff's claims against these individual supervisors. First, the only supervisor involved with Officer Becker on March 9th was Sgt. Burdick. Second, Officer Becker's training or supervision is not an issue in this case. As discussed in § III.B.5., supra, Officer Becker did not violate Mr. Hehrer's constitutional rights. Accordingly, defendants Sheriff Jerue, Capt. Wirth, Sgt. Faggion, Sgt. Burdick, Sgt. Bashore, and Sgt. Stout should be granted summary judgment on this supervisory failure claim alleged in Count V.
IV. RECOMMENDATION
Accordingly, I respectfully recommend that the Clinton County defendants' motion for summary judgment (ECF No. 118) be GRANTED and that defendants Clinton County, Sheriff Jerue, Capt. Wirth, Sgt. Faggion, Sgt. Burdick, Sgt. Bashore, Sgt. Richard Stout, Officer Becker, and the “Jane and John Does” be dismissed from this case. .
ANY OBJECTIONS to this Report and Recommendation must be served and filed with the Clerk of the Court within fourteen (14) days after service of the report. All objections and responses to objections are governed by W.D. Mich. LCivR 72.3(b). Failure to serve and file written objections within the specified time waives the right to appeal the District Court's order. Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).