                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 07a0118n.06
                               Filed: February 14, 2007

                                          No. 06-1013


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

DAWN COOPER, Personal Representative of
the Estate of DEMITRIUS MORTON,
Deceased,

       Plaintiff-Appellant,                         ON APPEAL FROM THE UNITED
                                                    STATES DISTRICT COURT FOR THE
v.                                                  EASTERN DISTRICT OF MICHIGAN

COUNTY OF WASHTENAW, CITY OF ANN
A R B O R , A N T H O N Y W O O D FO R D ,
Washtenaw County Sergeant, PAMELA
RACITI, Washtenaw County Officer,
EUGENE HAHN, Washtenaw County Officer,
MICHAEL WATCHOWSKI, Ann Arbor Police
Officer, STEVE LAWRENCE, Ann Arbor
Police Officer,

       Defendants-Appellees.

                                              /




BEFORE:        CLAY, ROGERS, and SUTTON, Circuit Judges.

       CLAY, Circuit Judge. Plaintiff Dawn Cooper, personal representative of the estate of

Demitrius Morton (“Morton”), a deceased prisoner at Washtenaw County Jail, appeals the district

court order granting summary judgment in favor of Defendants Washtenaw County, the City of Ann

Arbor, and all officers named individually as Defendants (collectively “Defendants”). The district
                                            No. 06-1013

court dismissed Plaintiff’s 42 U.S.C. § 1983 claim alleging Defendants violated Morton’s Eighth

Amendment rights by acting with deliberate indifference to his known risk of suicidal behavior. For

the reasons that are set forth below, we AFFIRM the district court’s decision granting summary

judgment as to Defendants Lawrence, Woodford, Hahn, Raciti, and the County of Washtenaw; we

REVERSE the grant of summary judgment as to Defendants Watchowski and the City of Ann

Arbor.

                                         BACKGROUND

         The details of this case are tragic. On March 3, 2003, thirty-five year old Demetrius Morton

pled guilty to domestic assault and battery. Morton was released on personal recognizance and

ordered to return to court on April 3, 2003 for sentencing. Morton failed to appear on April 3, 2003

and a bench warrant was issued for his arrest. On June 3, 2003 he was arrested by Dearborn police,

and an arrangement was made to transfer him to the custody of the Ann Arbor police. During the

exchange, Morton attempted to escape and was caught. The capture prompted him to become

violent toward the arresting officers and toward himself. During his transport to Ann Arbor, he

banged his head on the safety glass of the patrol vehicle and stated that he wanted to kill himself.

Reacting to his violent behavior, Ann Arbor police transported Morton to the University of Michigan

for psychological evaluation to determine if he needed to be hospitalized as he presented a danger

to himself and others. Morton tested positive for cocaine and his blood alcohol level was found to

be .363, which is over four times the legal limit for operating a motor vehicle. University medical

specialists concluded that hospitalization was unnecessary and that Morton’s violent behavior was




                                                  2
                                            No. 06-1013

the result of his drug and alcohol use. Morton was released from the University Hospital the same

day and taken to his arraignment.

       At the arraignment, Morton once again reacted violently when he was told he would not be

released while he awaited his sentencing hearing set for June 12, 2003. He banged his head on the

table and yelled that he wanted to kill himself. Morton had to be physically restrained and escorted

out of the courtroom by the officers present. Despite the recommendation for the University hospital

that Morton did not present a danger to himself, the judge ordered Morton to be placed on suicide

watch until sentencing. Officer Watchowski of the Ann Arbor police, one of the defendants in this

action, was present at this arraignment. Defendant Watchowski testified that he did not hear the

court place Morton on suicide watch. However, he admitted that it is customary for him to have

received a copy of the court disposition and that he likely received one in this case as well. Further,

while he claimed that he could not remember if he read it or not, he admitted that it is likely that if

he received the court disposition then he would have read it. The Ann Arbor police transported

Morton to Washtenaw County jail, where he would be housed until sentencing. Defendant

Watchowski was not one of the transporting officers.

       Defendant Deputy Raciti booked Morton when he arrived at the Washtenaw County Jail on

June 3, 2003. Defendant Raciti placed Morton on suicide watch pursuant to the court’s order. This

was the sixth time Morton had been an inmate at Washtenaw County Jail. During three of his

previous incarcerations at the jail he had been placed on suicide watch. Placing Morton on suicide

watch consisted of placing him in an observation cell under 24-hour observation, where he was

housed from June 3, 2003 until he was transported to his sentencing hearing on June 12, 2003. The


                                                  3
                                           No. 06-1013

observation cells are rooms with glass walls so that the prisoner can be observed constantly. Morton

was also given a “bam bam” gown to wear.1 These gowns are given to inmates on suicide watch,

as well as inmates who have other special medical needs. The observational cells are additionally

used both to house inmates on suicide watch and inmates who need to be observed for other medical

and psychological needs. Over the course of his nine day stay, Morton was given consistent medical

evaluations and “was cleared of all alcohol/narcotic withdrawals” on June 8, 2003.

         Defendants Officers Michael Watchowski and Steve Lawrence, both of whom were Ann

Arbor police officers, were the transport officers on June 12, 2003 who were responsible for taking

Morton to his sentencing hearing. When the officers arrived, both Defendants Officer Pamela Raciti

and Sergeant Anthony Woodford of Washtenaw County were on duty at the county jail. When

Defendants Watchowski and Lawrence inquired as to how Morton was doing, Defendants Raciti and

Woodford informed them that Morton was “doing fine” and he was “alright to be transported as far

as [Defendant Woodford] kn[ew].” (J.A. at 395). Neither Defendant Raciti nor Defendant

Woodford told either Defendant Watchowski or Defendant Lawrence that Morton was on suicide

watch.

         When they first arrived, Defendants Watchowski and Lawrence saw that Morton was being

held in an observational cell and saw him wearing a bam bam gown. Before he was released into

the custody of Defendants Watchowski and Lawrence, Morton was changed out of the bam bam



         1
         Defendants’ counsel explained during oral argument that “bam bam” gowns are so named
for the Flintstones character “Bam Bam.” The name refers to the fact that the jail’s bam bam gowns
are flimsy, one-piece gowns that are designed to tear apart upon the exertion of any pressure so that
they cannot be used in a suicide attempt.

                                                 4
                                            No. 06-1013

gown and into a white uniform, consisting of white pants and a white shirt. This uniform is issued

to inmates who have special needs, which can include suicidal tendencies, drug or alcohol problems,

or medical conditions. Defendant Eugene Hahn, Washtenaw County Corrections Officer, was

responsible for preparing the transportation log concerning Morton’s June 12, 2003 transportation

to the sentencing hearing. Defendant Hahn had no direct contact with Morton or the Ann Arbor

Defendants. Washtenaw Deputy Pilarski claimed that he informed Defendant Watchowski that

Morton was on suicide watch before Watchowski left the county jail, and Corporal Crowell

confirmed that he heard this conversation. Defendant Watchowski claimed that he cannot remember

whether he was told this or not.

       Defendants Watchowski and Lawrence spoke with Morton on the ride to the sentencing

hearing and according to them he “seemed . . . normal” and there was “no indication” he had any

suicidal tendencies. (J.A. at 397). Morton arrived at the courthouse without incident. When Morton

was sentenced to ninety-three days in jail, he accepted the sentence calmly. Defendants returned

Morton to a holding cell after the sentencing until they could transport him back to the jail.

Defendants left Morton for a little over an hour unsupervised. When they returned, they discovered

that he had hanged himself with his shirt in the cell.

       Plaintiff brought this action, claiming that Defendants showed deliberate indifference to the

suicidal tendencies of Morton. Defendants moved for summary judgment. Defendants Watchowski

and Lawrence both admitted that suicide risk was a major concern when inmates were seen wearing

bam bam gowns, but they further testified that other reasons were equally possible for the gown.

Defendant Raciti confirmed that inmates are given this gown in situations other than potential


                                                  5
                                            No. 06-1013

suicide risks. Defendants also testified that inmates were placed in observational cells for reasons

other than suicide prevention. Plaintiff introduced no testimony that contradicted the assertions that

suicide risk is only one of several reasons an inmate may be held in an observation cell or wear a

bam bam gown.

       The district court noted that Plaintiff was unable to allege facts indicating that Defendants

acted any more than negligently in their interactions with respect to Morton’s suicide risk. The court

emphasized that the standard for deliberate indifference is whether the official “knows of and

disregards an excessive risk to inmate health or safety.” (J.A. at 395). The district court reasoned

that with respect to Defendant Woodford, Plaintiff offered no evidence that would tend to indicate

that Plaintiff met the requisite standard. Because Plaintiff’s argument with respect to Defendant

Woodford was that he failed to tell Defendants Watchowski and Lawrence that Morton was on

suicide watch, the district court reasoned that this was simple negligence. With respect to Defendant

Raciti, Plaintiff once again argued that her failure to inform the Ann Arbor police that Morton was

suicidal constituted a violation of Morton’s Eighth Amendment rights. Again, the district court

reasoned that this amounted only to negligence. The district court pointed out that Plaintiff failed

to make any argument to support the allegation that Defendant Hahn showed deliberate indifference

toward Morton, because he never had any direct contact with him. The court analyzed Defendants

Watchowski and Lawrence together and concluded that, assuming Plaintiff successfully alleged that

they had observed enough indicia of suicidal behavior to have drawn the inference, Plaintiff was

unable to prove that they had actually drawn the inference. Finally, the court pointed out that

Plaintiff’s “failure to train” argument against Defendants Washtenaw County and the City of Ann


                                                  6
                                            No. 06-1013

Arbor was meritless because § 1983 claims cannot grant relief on an allegation of failure to train

unless Plaintiff alleged that the County and the City themselves engaged in the constitutional

violation. Thus, the district court granted summary judgment in favor of all Defendants. Plaintiff

timely filed a Notice of Appeal of this order.

                                           DISCUSSION

I.     The district court improperly granted summary judgment with respect to Defendant
       Watchowski, but properly granted summary judgment with respect to the other
       individual Defendants

       A.      Standard of Review

       This Court reviews a district court’s grant of summary judgment de novo. Blackmore v.

Kalamazoo, 390 F.3d 890, 894-95 (6th Cir. 2004). Summary judgment is proper where “the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56 (c). The moving party bears the initial

burden of demonstrating the absence of any genuine issue of material fact, and all inferences should

be made in favor of the non-moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

       To support its motion, the moving party may show “that there is an absence of evidence to

support the nonmoving party's case.” Id. at 325. While all inferences must be drawn in favor of the

nonmoving party, this Court is under no obligation to imagine favorable facts where the nonmoving

party has alleged none. “[T]he mere existence of a scintilla of evidence in support of the plaintiff's

position will be insufficient [to defeat a motion for summary judgment]; there must be evidence on




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                                           No. 06-1013

which the jury could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 252 (1986).

       B.      Standard for a § 1983 Claim

       Section 1983 does not alone confer rights upon an individual. Instead, it is a vehicle to assert

violations of constitutional rights guaranteed elsewhere. Graham v. Connor, 490 U.S. 386, 393-94,

(1989). Thus, in order to successfully bring a § 1983 claim, a plaintiff must allege 1) the violation

of an underlying constitutional right by; and 2) a state actor who committed the violation while

acting under the color of law. Baker v. McCollan, 443 U.S. 137, 140 (1979).

       In the present case, Plaintiff alleges that by showing deliberate indifference to Morton’s

demonstrated suicidal tendencies, Defendants violated his Eighth Amendment rights. (Pl.’s Brief

at 3). Plaintiff properly bases the underlying violation upon the Eighth Amendment because Morton

was a convicted prisoner at the time of his suicide. “[T]he Eighth Amendment, which is specifically

concerned with the unnecessary and wanton infliction of pain in penal institutions, serves as the

primary source of substantive protection to convicted prisoners in cases such as this one. . . .”

Whitley v. Albers, 475 U.S. 312, 327 (1986). Further, “this constitutional guarantee encompasses

a right to medical care for serious medical needs, including psychological needs.” Perez v. Oakland

County, 466 F.3d 416, 423(6th Cir. 2006). Plaintiff is, therefore, able to meet the first requirement

for alleging a § 1983 claim. Additionally, Plaintiff names two municipalities and four agents of the

state as Defendants. Accordingly, it is undisputed that their actions were undertaken under color of

law. Thus, this § 1983 claim is properly formulated.

       C.      Deliberate Indifference


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                                            No. 06-1013

       The question before us is whether there exists a triable issue of fact over whether Defendants

discharged their constitutional responsibilities while Morton was in custody. “[T]he Constitution

gives governments considerable leeway when it comes to the day-to-day challenges of managing a

prison and erects a series of hurdles that allegations of prisoner mistreatment must clear before they

proceed to a jury.” Clark-Murphy v. Foreback, 439 F.3d 280, 286 (6th Cir. 2006). Accordingly,

deliberate indifference involves two distinct steps. First, a plaintiff must “establish[] that ‘the

official knows of and disregards an excessive risk to inmate health or safety,’ which is to say ‘the

official must both be aware of facts from which the inference could be drawn that a substantial risk

of serious harm exists, and he must also draw the inference.’” Id. (quoting Farmer v. Brennan, 511

U.S. 825, 837 (1994)). This requirement comprises the constitutional violation question and

contains both an objective and subjective element. Once a plaintiff is able to make the initial

showing that there was in fact a constitutional violation, a defendant may still avoid liability if the

defendant is entitled to qualified immunity. To overcome a claim of qualified immunity, plaintiff

must show that “the right at issue was . . .‘clearly established’ at the time of the violation.”

Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001).

               1.      Constitutional Question

       “[T]he Eighth Amendment prohibits mistreatment only if it is tantamount to ‘punishment,’

and thus courts have imposed liability upon prison officials only where they are ‘so deliberately

indifferent to the serious medical needs of prisoners as to unnecessarily and wantonly inflict pain.’”

Perez, 466 F.3d at 424 (quoting Horn v. Madison County Fiscal Court, 22 F.3d 653, 660 (6th Cir.

1994)). This Court has defined “[a] serious medical need [as] ‘one that has been diagnosed by a


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                                            No. 06-1013

physician as mandating treatment or one that is so obvious that even a lay person would easily

recognize the necessity for a doctor's attention.’” Blackmore, 390 F.3d at 897 (quoting Gaudreault

v. Municipality of Salem, 923 F.2d 203, 208 (1st Cir. 1990)). It is well-established in this Circuit

that suicidal tendencies are considered “serious medical needs” for the purposes of this analysis. See,

e.g., Horn, 22 F.3d at 660; Barber v. City of Salem, Ohio, 953 F.2d 232, 239-40 (6th Cir. 1992).

       There are two distinct prongs of the deliberate indifference standard: An objective component

and a subjective component. First, the medical need “must be, objectively, sufficiently serious.”

Farmer, 511 U.S. at 835. As we have stated, it is beyond dispute that suicidal tendencies meet this

objective component. Horn, 22 F.3d at 660. The subjective component, on the other hand, requires

facts that indicate “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.

       Thus, the subjective component actually has three prongs embedded within it. First, the

plaintiff must show that the official subjectively perceived the facts that gave rise to the inference

of the risk. Id. Then, the plaintiff must show that the official actually drew the inference, and,

importantly, not just that he or she should have done so. Farmer, 511 U.S. at 839; Brooks v. Celeste,

39 F.3d 125, 128 (6th Cir. 1994). Finally, the plaintiff must show that the official consciously

disregarded the perceived risk. Farmer, 511 U.S. at 839.

       The constitutional question is further complicated by the oft-repeated caveat “that deliberate

indifference entails something more than mere negligence.” Farmer, 511 U.S. at 835. Precisely

how much more is required remains difficult to determine. “Deliberate indifference requires a


                                                  10
                                            No. 06-1013

degree of culpability greater than mere negligence, but less than ‘acts or omissions for the very

purpose of causing harm or with knowledge that harm will result.’” Miller v. Calhoun County, 408

F.3d 803, 812 (6th Cir. 2005) (quoting Farmer, 511 U.S. at 834). In Farmer, the Court indicated

that the line between these two concepts is marked by actual knowledge. The Court defines

deliberate difference as criminal recklessness and notes that “[t]he criminal law. . . generally permits

a finding of recklessness only when a person disregards a risk of harm of which he is aware.”

Farmer, 511 U.S. at 836-837. The line between negligence and deliberate indifference is particularly

difficult to draw when the risk at issue is suicide because the officials will necessarily be accused

of a failure to act, which usually falls in the domain of negligence. We have clarified that the proper

inquiry in a case where an inmate has committed suicide is “whether the decedent showed a strong

likelihood that he would attempt to take his own life in such a manner that failure [by a defendant]

to take adequate precautions amounted to deliberate indifference to the decedent's serious medical

needs.” Gray v. City of Detroit, 399 F.3d 612, 616 (6th Cir. 2005) (quoting Barber v. City of Salem,

953 F.2d 232, 239-40 (6th Cir. 1992)).

       Noticeably, this is a difficult standard to meet at the summary judgment stage. Thus, this

Court must adhere to a standard that simultaneously retains a difference between negligence and

deliberate indifference while not rendering it prohibitively difficult for a plaintiff to succeed at the

summary judgment stage. This Court has held that

       [a]lthough the plaintiff bears the onerous burden of proving the official’s subjective
       knowledge, this element is subject to proof by “the usual ways.” Farmer, 511 U.S.
       at 842. Thus, the Supreme Court noted that it was permissible for reviewing courts
       to infer from circumstantial evidence that a prison official had the requisite
       knowledge. Id. at 842. Moreover, the Court warned, a prison official may “not
       escape liability if the evidence showed that he merely refused to verify underlying

                                                  11
                                            No. 06-1013

       facts that he strongly suspected to be true, or declined to confirm inferences of risk
       that he strongly suspected to exist.” Id. at 843 n.8.

Comstock, 273 F.3d at 703. Accordingly, we do not demand that a plaintiff prove that he or she will

ultimately be successful on the § 1983 claim at this stage in order to survive summary judgment.

Instead, a plaintiff need only to “allege facts which, if true, would show that the official being sued

perceived facts from which to infer substantial risk to the prisoner, that he [or she] did in fact draw

the inference, and that he [or she] then disregarded that risk.” Id. This satisfies our twin goals of

keeping the standard high enough so that it does not amount to mere negligence and low enough that

it is possible for a plaintiff to survive summary judgment without proving his or her entire case.

       In Perez, we were faced with a situation similar to the one before us presently. In that case,

the plaintiff appealed the grant of summary judgment dismissing the plaintiff’s § 1983 claim alleging

deliberate indifference when the plaintiff’s son, Perez, killed himself while being housed at the

Oakland County jail. Perez, 466 F.3d at 419. One of the individual defendants who was named by

plaintiff was Rice, who was the counselor assigned to work with Perez while he was in custody. Id.

The plaintiff alleged that Rice’s decision to remove Perez from an observational cell with other

inmates amounted to deliberate indifference because she had previously deemed him to be suicidal

and placed him on suicide watch. Id. at 424-25. The defendant responded that she did not disregard

Perez’s psychological needs, but that she genuinely did not perceive Perez to be suicidal any longer.

Id.

       The district court found that a genuine issue of fact remained as to whether Rice disregarded

the risk and this Court agreed. In that case, we focused on the fact that the defendant had been in

direct contact with Perez in the weeks leading up to his death. Because she had been the one to place

                                                  12
                                             No. 06-1013

him on suicide watch, we concluded that she had actual knowledge that Perez had exhibited suicidal

tendencies. Id. Thus, a triable issue of fact remained as to whether the decision to discharge him

from suicide watch and place him in an unmonitored cell surpassed mere negligence and amounted

to deliberate indifference. In so concluding, we held that when “[v]iewing this evidence in the light

most favorable to [plaintiff], this evidence can be construed as demonstrating that Rice had the

subjective knowledge, at least at times, that Perez posed a risk of suicide.” Id. at 425. Thus, in

Perez, we held that once actual knowledge of the risk could be shown at the summary judgment

stage, the question of whether there was conscious disregard of that risk was to be determined by the

jury. Id. See also, Clark-Murphy, 439 F.3d at 289 (“For summary-judgment purposes, we hold only

that these 11 defendants could have perceived a substantial risk of serious harm to Clark. Whether

in fact they perceived, inferred or disregarded that risk is an issue for trial.”)

                        2.      Qualified Immunity

        After a plaintiff makes the necessary showing with respect to the constitutional question, a

defendant may still assert qualified immunity to succeed on summary judgment. Perez, 466 F.3d

at 426. “The philosophy behind the doctrine of qualified immunity ‘is a desire to avoid the

substantial costs imposed on government, and society, by subjecting officials to the risks of trial.’”

Skousen v. Brighton High Sch., 305 F.3d 520, 526 (6th Cir. 2002) (quoting Vaughn v. United States

Small Bus. Admin., 65 F.3d 1322, 1326 (6th Cir. 1995)). The purpose of the doctrine is to shield

“government officials performing discretionary functions . . . from liability for civil damages insofar

as their conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (2004). As we


                                                   13
                                            No. 06-1013

have noted, the question of whether qualified immunity exists involves a two-part inquiry. Perez,

466 F.3d at 426.

       The initial question before the court in a qualified immunity inquiry is whether the facts,

taken in the light most favorable to the plaintiff, indicate that the officer's conduct violated a

constitutional right. Saucier v. Katz, 533 U.S. 194, 201(2001). If the answer to this first question

is no, then the inquiry is ended. In other words, the first step of the qualified immunity analysis is

determining whether the plaintiff has proved the constitutional question. If the plaintiff can show

that a constitutional violation occurred, we must ask whether the constitutional right at issue was

“clearly established” at the time of the violation. Id. at 202. “The relevant, dispositive inquiry in

determining whether a right is clearly established is whether it would be clear to a reasonable officer

that his conduct was unlawful in the situation he confronted.” Id. Importantly, qualified immunity

is not analyzed as an affirmative defense. When a defendant claims qualified immunity, it creates

a hurdle for the plaintiff to surmount before he or she can overcome the claim. The burden of

showing that a right was clearly established falls wholly on the plaintiff. Key v. Grayson, 179 F.3d

996, 1000 (6th Cir. 1999). The plaintiff must further show that the right was clearly established “in

light of the specific context of the case, not as a broad general proposition.” Saucier, 533 U.S. at

201. Thus, if reasonable officers could disagree about the lawfulness of the conduct in question,

immunity must be granted. Key, 179 F.3d at 1000.

       A plaintiff must make the showing that a right was clearly established by looking “principally

to the law of this circuit and to the Supreme Court.” Perez, 466 F.3d 416. “However, we have held

that the lack of Supreme Court or Sixth Circuit precedent ‘is not a sufficient condition for concluding


                                                  14
                                            No. 06-1013

that the law is unclear on the subject and [thus that] qualified immunity must be granted to a

defendant.’” Id. (quoting McCloud v. Testa, 97 F.3d 1536, 1556 (6th Cir. 1996)). “[T]he decisions

of other courts can also clearly establish the law[,] but they must point [unmistakably] to the

unconstitutionality of the conduct and be so clearly foreshadowed by applicable direct authority as

to leave no doubt in the mind of a reasonable officer that his conduct was unconstitutional.” Summar

v. Bennett, 157 F.3d 1054, 1058 (6th Cir. 1998) (internal citation omitted). “There need not be a

case with the exact same fact pattern, or even ‘fundamentally similar’ or ‘materially similar’ facts;

rather, the question is whether the defendants had ‘fair warning’ that their actions were

unconstitutional.” Cummings v. City of Akron, 418 F.3d 676, 687 (quoting Hope v. Pelzer, 536 U.S.

730, 741 (2002).

       The Supreme Court has been cautious to draw a distinction between behavior that violates

a statutory or constitutional right and behavior that violates an administrative procedure of the

agency for which the officials work. Specifically, the Court has held that officials “do not lose their

qualified immunity merely because their conduct violates some statutory or administrative

provision.” Davis v. Scherer, 468 U.S. 183, 194 (1984). Guided by Supreme Court precedent, this

Court has held that “under § 1983, the issue is whether [the officer] violated the Constitution, not

whether he should be disciplined by the local police force.” Smith v. Freland, 954 F.2d at 343, 347

(6th Cir. 1992).

       D.      Application to Individual Defendants2



       2
       Defendant Hahn was not mentioned in Plaintiff’s brief or in oral argument. Therefore, we
deem any argument focusing on his actions waived.

                                                  15
                                           No. 06-1013

               1.      Defendant Watchowski

       Defendant Watchowski was present at Morton’s original hearing on June 3, 2003 when the

court ordered him placed on suicide watch. Defendant Watchowski claimed that he did not hear the

court place Morton on suicide watch, but that he likely received a copy of the court disposition, and

if he received it he likely read it. Deputy Pilarski claimed that he informed Defendant Watchowski

that Morton was on suicide watch. This was confirmed by Corporal Crowell, and Defendant

Watchowski does not remember whether he was informed by Pilarski or not. Because Defendants

move for summary judgment, we must draw all inferences in favor of Plaintiff. Thus, we will

assume based on this evidence that Defendant Watchowski was put on notice that Morton was on

suicide watch while he was at Washtenaw County Jail. When Defendant Watchowski appeared on

June 12, 2003 to take Morton to his hearing, Morton was wearing a bam bam gown and was being

housed in an observational cell. While the officers on duty told Watchowski that Morton was doing

fine, these facts all taken together indicate that Watchowski had at least perceived enough facts to

give rise to an inference of the risk, which is the first prong of the subjectivity component for

deliberate indifference. Comstock, 273 F.3d at 703.

       The next question is whether Watchowski actually drew the inference. As this Court stated

in Comstock, this Court may infer knowledge from circumstantial evidence. Id. Because Defendant

Watchowski was on notice that Morton was a suicide risk, it is appropriate to presume that

Watchowski had the requisite knowledge. We need not address whether Plaintiff has alleged facts

pertaining to the question of conscious disregard of the risk. As we held in Perez and its progeny,

where there is evidence of actual knowledge of the risk, conscious disregard need not be explicitly


                                                 16
                                            No. 06-1013

alleged in order to survive summary judgment. Perez, 466 F.3d at 425; Clark-Murphy, 439 F.3d at

289. Therefore, we conclude that Plaintiff alleged sufficient facts to overcome summary judgment.

       Defendant Watchowski alternatively argues that he is entitled to qualified immunity.

Because Defendant Watchowski’s actions amounted to a constitutional violation, the next question

we must determine is “whether [Defendant Watchowski] had ‘fair warning’ that [his] actions were

unconstitutional.” Cummings, 418 F.3d at 687. We have previously addressed this question.

“[O]nce a prisoner has been deemed suicidal, it is clearly established that the prisoner is entitled to

continuing medical treatment.” Perez, 466 F.3d at 428 (citing Comstock, 273 F.3d at 702-03). Thus,

Defendant had fair warning that his actions would constitute a constitutional violation. Defendant

failed to show that any rational trier of fact would conclude that he was entitled to qualified

immunity and therefore summary judgment was inappropriate with respect to Defendant

Watchowski.

               2.      Defendant Lawrence

       While Defendant Lawrence and Defendant Watchowski were both Morton’s transport

officers, their degree of liability differs in that Defendant Lawrence had no actual knowledge that

Morton was on suicide watch. The crux of Plaintiff’s argument is that Defendant Lawrence should

have known that Morton had a high risk of hurting himself because of the facts Defendant Lawrence

perceived. Plaintiff argues that Defendant Lawrence knew Morton was on a suicide watch because

of the bam bam gown in which he was outfitted, the observational cell in which he had been held,

and the white uniform he was given upon his release. However, the record is replete with other

explanations for each of those observations besides the suicide watch explanation. Because each of


                                                  17
                                           No. 06-1013

those precautions could have indicated Morton had other special needs and needed to be observed,

we cannot conclude that perceiving them put Defendant Lawrence on notice that Morton was

suicidal. Further, Plaintiff’s expert witness testimony shows at most that Defendant Lawrence

should have known that Morton was suicidal, which is insufficient for a deliberate indifference

claim. Finally, Plaintiff argues that the fact that Watchowski violated Ann Arbor security procedures

by not at least checking on Morton after the requisite thirty minutes should give rise to the

presumption that he acted unconstitutionally. However, the Supreme Court has foreclosed this

argument. A violation of internal policy does not ipso facto give rise to a presumption of

unconstitutionality. Davis, 468 U.S. at 194. Thus, Lawrence was properly granted summary

judgment.

               3.      Defendant Raciti

       Defendant Raciti was responsible for placing Morton under suicide watch, so it is beyond

dispute that she perceived the requisite facts that gave rise to an inference of a risk and that she

actually knew that Morton was on suicide watch. Further, she did not warn either Defendant

Watchowski or Defendant Lawrence, who would be responsible for monitoring Morton, that he was

under observation as a suicide risk. Contrary to the assertion by Judge Rogers’ concurrence that

there is some dispute regarding this fact, there is absolutely no testimony on the record indicating

that she ever gave such a warning. Despite these facts as understood by the lead opinion, we

conclude that, as explained in Judge Rogers’ concurrence, the district court properly granted

summary judgment in favor of Defendant Raciti.




                                                 18
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       As the Supreme Court has held, the right that is violated must be clearly established “in light

of the specific context of the case, not as a broad general proposition.” Saucier, 533 U.S. at 201.

Thus, while it is well-established that an inmate who has exhibited suicidal tendencies is entitled to

medical treatment, it must have been clear that Defendant Raciti’s deliberate indifference deprived

him of that treatment in order for her to be liable. Too many triable issues of fact remain with

respect to whether Defendant Raciti knew her failure to warn would subject Morton to the injury he

experienced.

       Contrary to Judge Rogers’ concurrence, the record is completely silent with respect to

whether Defendant Raciti actually knew that Defendant Watchowski had attended Morton’s

arraignment. Without this knowledge, it would be illogical to relieve Defendant Raciti of her duty

to warn Morton’s transport officers that he was a suicide risk so that they could continue to closely

observe him.

       Even if we were to assume, arguendo, that Defendant Raciti was aware that Defendant

Watchowski attended Morton’s arraignment, material facts would remain in dispute about Defendant

Raciti’s potential liability. Defendant Raciti had no basis to assume that Defendant Watchowski

remembered or even heard the judge place Morton on suicide watch nine days earlier. Further, the

fact that Defendant Watchowski may have been aware that Morton was placed on suicide watch on

June 3, 2003 does not address whether Defendant Raciti should have assumed Defendant

Watchowski knew Morton was still on suicide watch on June 12, 2003. Morton’s suicidal behavior

was attributed to alcohol and drug use at his arraignment; by June 12, 2003, he had been cleared of

all alcohol and narcotic withdrawal. Thus, Defendant Raciti had no reason to refrain from informing


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Defendant Watchowski that Morton, although he was sober, still posed a suicide risk. Finally,

because Defendant Raciti did not know whether Defendant Watchowski would be the officer

charged with observing Morton, she may have had a duty to insure that Defendant Lawrence knew

of Morton’s suicidal tendencies as well. Contrary to the concurrence, the record is clear that only

Defendant Watchowski, and not Defendant Lawrence, attended Morton’s arraignment. (J.A. at 103-

07; J.A. at 162-63). Clearly, many material facts remain in dispute about whether Defendant Raciti

had “fair warning” that her failure to warn would result in a violation of Morton’s constitutional

rights. Cummings, 418 F.3d at 687. These remaining issues of fact indicate that it would be entirely

possible for a rational trier of fact to find that Defendant Raciti acted with deliberate indifference

toward Morton. Thus, summary judgment was inappropriate with respect to Raciti.

       In order to reach the contrary conclusion, the concurrence has impermissibly engaged in its

own fact-finding. The concurrence concludes that Defendant Raciti cannot be liable “because there

is no evidence that Raciti knew that Watchowski and Lawrence were ignorant about or would ignore

signs of Morton’s suicide risk.”      However, this sweeping statement assumes facts wholly

unsupported by the record. Contrary to the assertions made by the concurrence, it is very much

disputed as to whether Defendants Watchowski and Lawrence observed signs indicating that Morton

might be a suicide risk.

       According to Defendant Raciti’s testimony, she “assumed” that Defendants Watchowski and

Lawrence knew that Morton was on suicide watch, but she did not know that for sure. (J.A. at 162).

She based her assumption on the fact that the information could be found in the court disposition,

on the fact that Morton was being housed in an observational cell, and on the fact that she was


                                                 20
                                            No. 06-1013

outfitted in a bam bam gown. However, she admitted that she did not know whether either

Defendants Watchowski or Lawrence actually read the court disposition. Importantly, she also

admitted that there were reasons other than being on suicide watch that a person might be held in an

observational cell and be outfitted in a bam bam gown. Thus, the issue of whether Defendants

Watchowski and Lawrence actually observed any signs that put them on notice that Morton was a

suicide risk is in dispute. Because that issue goes to the very heart of the question of Defendant

Raciti’s liability, summary judgment should not be granted.

       The concurrence refers to the connection between Raciti’s actions and Morton’s death as

“tenuous” and essentially holds that only a direct causal effect of injuries can amount to deliberate

indifference. However, such a holding improperly injects a proximate cause discussion into our

deliberate indifference analysis. We have previously held that while proximate cause may be

necessary “to assess whether the denial of medical care caused a serious medical injury in cases

where the prisoner or pretrial detainee’s ‘affliction is seemingly minor or non-obvious,’ no such

evidence is required where the individual had a ‘serious need for medical care that was so obvious

that even a layperson would easily recognize the necessity for a doctor's attention.’” Owensby v. City

of Cincinnati, 414 F.3d 596, 604 (6th Cir. 2005) (quoting Blackmore v. Kalamazoo County, 390 F.3d

890, 899 (6th Cir. 2004). Specifically, in Blackmore, we held:

       Where the seriousness of a prisoner’s needs for medical care is obvious even to a lay
       person, the constitutional violation may arise. This violation is not premised upon the
       ‘detrimental effect’ of the delay, but rather that the delay alone in providing medical
       care creates a substantial risk of serious harm. When prison officials are aware of a
       prisoner's obvious and serious need for medical treatment and delay medical
       treatment of that condition for non-medical reasons, their conduct in causing the
       delay creates the constitutional infirmity. In such cases, the effect of the delay goes
       to the extent of the injury, not the existence of a serious medical condition.

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                                            No. 06-1013

Id. We have also previously held that once a prisoner has been deemed suicidal that prisoner is said

to have this type of obvious and serious need for medical care. Perez v. Oakland County, 466 F.3d

416, 428 (6th Cir. 2006); Comstock v. McCrary, 273 F.3d 693 (2001). Accordingly, there need not

be a showing of proximate cause in order to hold Raciti liable.

       Further, even if a showing that Raciti’s failure to warn was the proximate cause of Morton’s

death were required, such a requirement would weigh strongly against the granting of summary

judgment. As we have explicitly stated in the past, “[p]roximate cause, and its underlying

foreseeability inquiry, is a question of fact for the jury.” James v. Meow Media, Inc., 300 F.3d 683,

692 (6th Cir. 2002). Nevertheless, we conclude that summary judgment was appropriate with

respect to Defendant Raciti for the reasons stated in the concurrence.

               4.      Defendant Woodford

       Because Defendant Woodford was not responsible for placing Morton on suicide watch,

Plaintiff has failed to make a showing that Defendant Woodford drew the inference that Morton was

a suicide risk. Without facts alleging that Defendant Woodford had the requisite knowledge of

Morton’s suicidal tendencies, he cannot be liable for deliberate indifference. Plaintiff’s argument

amounts to an allegation that he should have made the inference, which is insufficient for the reasons

we discussed above with respect to Defendant Lawrence. Thus, Defendant Woodford was entitled

to summary judgment.

II.    The district court improperly granted summary judgment with respect to Defendant
       City of Ann Arbor, but properly granted summary judgment with respect to Defendant
       County of Washtenaw




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                                            No. 06-1013

       In an effort to shield municipalities from liability for § 1983 claims, the Supreme Court

created a high burden for a plaintiff to meet to bring a § 1983 claim for failure to train. The Court

held that

       [a] city is not liable under § 1983 unless a municipal “policy” or “custom” is the
       moving force behind the constitutional violation. Only where a failure to train
       reflects a “deliberate” or “conscious” choice by the municipality can the failure be
       properly thought of as an actionable city “policy.” Monell will not be satisfied by a
       mere allegation that a training program represents a policy for which the city is
       responsible. Rather, the focus must be on whether the program is adequate to the
       tasks the particular employees must perform, and if it is not, on whether such
       inadequate training can justifiably be said to represent “city policy.” Moreover, the
       identified deficiency in the training program must be closely related to the ultimate
       injury.


City of Canton v. Harris, 489 U.S. 378 (U.S. 1989). This Court has interpreted that standard and

announced a three-part test to aid in the determination. This Court has held that “[t]o succeed on a

failure to train or supervise claim [under a § 1983 theory], the plaintiff must prove the following: (1)

the training or supervision was inadequate for the tasks performed; (2) the inadequacy was the result

of the municipality's deliberate indifference; and (3) the inadequacy was closely related to or actually

caused the injury.” Ellis v. Cleveland Mun. Sch. Dist., 455 F.3d 690, 700 (6th Cir. 2006). The

inquiry, however, must extend beyond the question of whether the individual officers involved were

poorly trained. The appropriate question is “whether that training program is adequate; and if it is

not, the question becomes whether such inadequate training can justifiably be said to represent ‘city

policy.’” City of Canton, 489 U.S. at 390. “Plaintiff must do more than point to something the city

could have done to prevent the unfortunate incident.” Kahlich v. City of Grosse Pointe Farms, 120

Fed. Appx. 580, 585 (6th Cir. 2005) (unpublished) (citing City of Canton, 489 U.S. at 392 (citation


                                                  23
                                            No. 06-1013

omitted). However, before this Court can apply the Ellis test, the plaintiff must first establish that

the agents of the municipality have violated a constitutional right. Watkins v. City of Battle Creek,

273 F.3d 682, 687 (6th Cir. 2001). Thus, this claim is inextricably linked to the plaintiff’s first

claim: If the individual defendants have violated no constitutional right, the municipality cannot be

liable under § 1983 for a failure to train. Id.

       In the present case, Defendant Watchowski’s and Defendant Raciti’s behavior arguably

constitute constitutional violations. Whether the County of Washtenaw and the City of Ann Arbor

may be liable is governed by the Ellis test. Because the district court concluded that there were no

underlying constitutional violations, it summarily dismissed Plaintiff’s claims against the

municipalities without applying the Ellis test. Because we conclude that Watchowski’s behavior

constituted a constitutional violation, we shall remand the issue of the liability of the City of Ann

Arbor to the district court to determine whether a rational trier of fact can conclude that

Watchowski’s deficient behavior can be fairly characterized as a “city policy.” City of Canton, 489

U.S. at 390. This Court should also remand the issue of the liability of the County of Washtenaw

to the district court for the application of the Ellis test and further factual development. However,

the County of Washtenaw shall be dismissed by the panel majority pursuant to the reasoning set forth

by Judge Rogers’ concurrence.

       We remand to the district court the issue of the liability of the City of Ann Arbor; however,

the dismissal of the County of Washtenaw pursuant to summary judgment will be affirmed based

upon the holding of the majority constituted by Judges Rogers and Sutton as to that issue.

                                          CONCLUSION


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                                        No. 06-1013

       For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment with

respect to Defendants Lawrence, Woodford, and Hahn, and REVERSE and REMAND with

respect to Defendants Watchowski and the City of Ann Arbor. Summary judgment with respect to

Defendants Raciti and the County of Washtenaw is AFFIRMED for the reasons stated in Judge

Rogers’ concurrence.




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                                             No. 06-1013

         Rogers, J., concurring: I concur in the lead opinion except with regard to defendant Raciti,

and therefore do not join Part I.D.3. and the portion of Part II dealing with Washtenaw County’s

potential liability under Ellis v. Cleveland Municipal School District, 455 F.3d 690, 700 (6th Cir.

2006).

         On June 12, 2003, when Officers Watchowski and Lawrence arrived to pick up Morton,

Officer Watchowski asked Corrections Officer Pamela Raciti how Morton was doing, to which

Raciti responded that Morton was doing fine. JA 139. Raciti did not observe any problems from

Morton during his nine-day period of incarceration, JA 157, and observed him smiling at one point.

JA 160. There is some evidence that, during this conversation, Officer Raciti warned Officers

Watchowski and Lawrence that Morton was on suicide watch. JA 164. The record, however, is not

clear on this point, as Officer Raciti testified that she did not specifically remember warning the

other officers, JA 164, and this disputed fact at this point should be resolved in the plaintiff’s favor.

         Assuming that Officer Raciti did not warn Officers Watchowski and Lawrence of Morton’s

suicide risk, Officer Raciti observed three significant facts that would warrant her reasonable belief

that an experienced transportation officer, like Watchowski or Lawrence, would have been aware

of the risk. First, the court ordered that Morton be put on suicide watch and Raciti believed that the

court order was in the file that Watchowski and Lawrence received. (Officer Watchowski, as it turns

out, was present in the courtroom when the judge instructed authorities to put Morton on suicide

watch.) Second, Raciti believed that Watchowski and Lawrence knew that Morton was in an

observation cell. Third, Raciti believed that Watchowski and Lawrence knew that Morton wore a




                                                   26
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bam-bam uniform, which, combined with the other two factors, suggested that Morton was on

suicide watch.

        These facts demonstrate a reasonable belief on Officer Raciti’s part that Officers Watchowski

and Lawrence should have been aware of Morton’s suicide risk. Even if such a belief was not

reasonable, the facts at least preclude the inference that Officer Raciti was deliberately indifferent

by failing to warn Officers Watchowski and Lawrence of Morton’s risk. Raciti’s reliance on Officers

Watchowski and Lawrence to deal with Morton’s suicide risk might have been mistaken, or even

careless. (There is a dispute as to whether Officers Watchowski and Lawrence were aware of the

risk.) Nevertheless, Raciti’s actions cannot be determined to have sunk to the level of deliberate

indifference.

        Raciti’s failure to warn Watchowski and Lawrence of Morton’s suicide risk amounted, at

most, to negligence because there is no evidence that Raciti knew that Watchowski and Lawson were

ignorant about or would ignore signs of Morton’s suicide risk. In essence, Cooper claims that an

officer can be deliberately indifferent to a risk that others would be deliberately indifferent to a risk.

The Supreme Court’s decision in Farmer v. Brennan, 511 U.S. 825, 835 (1994), however, instructs

us not to find an officer liable for a tenuous connection similar to the one in this case.




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