       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2       Graham v. County of Washtenaw                     No. 02-1614
    ELECTRONIC CITATION: 2004 FED App. 0043P (6th Cir.)
                File Name: 04a0043p.06                    CARPENTER, Ann Arbor, Michigan, for Appellee.
                                                          ON BRIEF: Hugh M. Davis, Jr., CONSTITUTIONAL
                                                          LITIGATION ASSOCIATES, Detroit, Michigan, for
UNITED STATES COURT OF APPEALS                            Appellant. Cynthia L. Reach, REACH, RANNEY &
                                                          CARPENTER, Ann Arbor, Michigan, for Appellee.
              FOR THE SIXTH CIRCUIT
                _________________                                                _________________

CAROLYN GRAHAM, as               X                                                   OPINION
Personal Representative of the    -                                              _________________
Estate of Terance Anthony         -
                                  -  No. 02-1614             BOYCE F. MARTIN, JR., Circuit Judge. This case arises
Graham,                           -                       from the tragic death of Terance Anthony Graham.1 Mr.
           Plaintiff-Appellant,    >                      Graham died in police custody shortly after secretly ingesting
                                  ,                       large quantities of cocaine upon being arrested for an
                                  -                       unrelated marijuana offense. Carolyn Graham, the personal
          v.                      -                       representative of Mr. Graham’s estate, sued Washtenaw
                                  -                       County pursuant to 42 U.S.C. § 1983, claiming that the
COUNT Y OF WASHTENAW,             -                       County’s policy regarding the provision of medical care to
         Defendant-Appellee. -                            prisoners in the County jail contributed to Mr. Graham’s
                                  -                       death. The district court granted the County’s motion for
                                 N                        summary judgment. For the following reasons, we affirm.
     Appeal from the United States District Court
    for the Eastern District of Michigan at Detroit.                              I. BACKGROUND
  No. 00-72195—Anna Diggs Taylor, District Judge.
                                                            The facts giving rise to this case are, for the most part,
               Argued: October 23, 2003                   undisputed. On May 6, 2000, at approximately 8:39 in the
                                                          evening, Deputy Sinks arrested Mr. Graham for possession of
         Decided and Filed: February 10, 2004             marijuana. A few minutes after the arrest, the deputy
                                                          permitted Mr. Graham to go behind a tree, allegedly to relieve
Before: KEITH, MARTIN, and SUTTON, Circuit Judges.        himself. It was later determined that while behind the tree
                                                          Mr. Graham had swallowed approximately an ounce of
                  _________________                       cocaine, which is a felony under Michigan law. Mr. Graham
                                                          was escorted into the County jail at approximately 8:55.
                       COUNSEL                            Most of the events occurring inside the jail were captured on

ARGUED: Hugh M. Davis, Jr., CONSTITUTIONAL
                                                              1
LITIGATION ASSOCIATES, Detroit, Michigan, for                   There is some discrepancy in the record and briefs as to the correct
Appellant. Cynthia L. Reach, REACH, RANNEY &              spelling of M r. Gra ham’s first name. According to the Notice of Ap peal,
                                                          however, it is spelled “T eranc e.”

                            1
No. 02-1614               Graham v. County of Washtenaw                  3    4    Graham v. County of Washtenaw               No. 02-1614

videotape. Shortly after his arrival, jail personnel observed                 booking process, so they placed him in a general population
Mr. Graham walking and acting erratically. At one point, he                   cell at 9:23.
pulled down his pants in full view of everyone in the booking
area. Jail personnel asked him several times, “What did you                     While inside the cell, Mr. Graham admitted to a cellmate
take?” Instead of revealing that he had ingested cocaine, Mr.                 that he had ingested cocaine, but insisted that he did not want
Graham stated that he had smoked marijuana and drank                          the jail personnel to find out. Statements from his cellmates
alcohol. After witnessing Mr. Graham’s erratic behavior, a                    indicate that while in the cell Mr. Graham “could barely talk,”
deputy requested that he be medically examined.                               “was staggering,” “looked sick,” and “was holding his
                                                                              stomach and rubbing his throat.” At approximately 10:00, a
  At approximately 9:00, Tracy Lakatos, a licensed practical                  cellmate pounded on the plexiglass window and yelled “He’s
nurse, responded and examined Mr. Graham. Nurse Lakatos                       hurt!” Witnesses reported that Mr. Graham appeared to be
was an employee of SecureCare, Inc., a company that the                       having a seizure and that he had “a blank look on his face and
County had hired to provide medical care to prisoners in the                  his eyes were real glassy.”
County jail. Mr. Graham told her that he had been drinking
and using marijuana that evening and that he had asthma.                        Nurse Lakatos responded and asked what was wrong.
Nurse Lakatos gave him two doses of albuterol, a medication                   Again, instead of telling Nurse Lakatos the truth, Mr. Graham
used to treat asthma that has a known side effect of causing an               only said that he had swallowed some pills. Nurse Lakatos
accelerated heart rate. At 9:06, Nurse Lakatos and Deputy                     used a pulse oximeter to determine his heart rate. One
Sinks took Mr. Graham to an interview room.2 After a blood                    cellmate observed that the pulse oximeter indicated a high
alcohol test indicated that Mr. Graham was not intoxicated,                   heart rate, which Nurse Lakatos apparently explained was due
Nurse Lakatos said that Deputy Sinks could interview Mr.                      to the marijuana. Satisfied that Mr. Graham needed no
Graham and she left the room at 9:11.                                         additional medical care, Nurse Lakatos left the cell at
                                                                              approximately 10:05.
  After providing a statement about his marijuana purchase
– the event prompting his arrest – Mr. Graham was turned                         At 10:16, Nurse Lakatos responded to another cry from a
over to another deputy and was scheduled to be booked and                     cellmate that Mr. Graham had “passed out.” At this point, he
then released. At this point, jail personnel observed him                     was taken to the medical room in the jail building, requiring
sweating profusely and using his shirt, which he had removed                  assistance from jail personnel to stay on his feet. At
from his body, to wipe off the sweat. Jail personnel                          approximately 10:40, he began to have multiple seizures, at
determined that he was not well enough to go through the                      which point an ambulance was summoned. He was
                                                                              transported to a hospital emergency room a few minutes later
                                                                              and was pronounced dead at 11:31.
    2
      In a written report, Deputy Sinks claimed that at this point Nurse        On May 12, 2000, Carolyn Graham, the personal
Lakatos told Mr. Graham that his heart was racing at around two hundred       representative of Mr. Graham’s estate, filed a complaint
beats per minute and asked him why his heart rate was so high. The
County denies that Nurse Lakato s observed or rep orted that M r. Gra ham’s   against the County, its Sheriff and certain officers. She filed
heart rate was two hundred beats per m inute and claim s that the deputy’s    an amended complaint four days later. The claims against the
report is inadmissible hearsay. This disagreement does not, however,          Sheriff and officers were subsequently dismissed, leaving a
constitute a genuine dispute of material fact that would preclude summary     section 1983 municipal liability claim against the County,
judgment.
No. 02-1614           Graham v. County of Washtenaw           5    6      Graham v. County of Washtenaw               No. 02-1614

which is the only claim at issue in this appeal. The essence of      On March 11, the district court held a hearing during which
the municipal liability claim is that the County’s contract with   the following ruling was made from the bench:
SecureCare constituted a municipal “policy” that led to a
deprivation of Mr. Graham’s constitutional right to adequate           It appears to the Court that at this time it must grant the
medical care while in police custody. Specifically, the                defendant’s motion for summary judgment because there
complaint alleges that: (1) the contract impermissibly creates         is no showing of any unconstitutional custom or policy
a policy of “automatic deference” by jail personnel to the             on the part of the Washtenaw County Jail which required
decisions of SecureCare staff concerning the medical                   the deliberate indifference which could have led to the
treatment of prisoners; and (2) the contract improperly                plaintiff’s death. Indeed any other ruling here would be
permits licensed practical nurses – like Nurse Lakatos – to            extremely detrimental to prisoners who are incarcerated
perform duties that exceed their competence under Michigan             in Michigan jails because the presence of medical
law.                                                                   personnel is essential to their safety and their health.
                                                                       Unfortunately the plaintiff here, as Watkins, in his case,
   On August 3, 2001, the County filed a motion for summary            was the only person who knew what he had ingested, and
judgment, which was supplemented on August 28. On                      he was asked on several occasions by the medical
October 1, the district court denied the motion without                personnel and others, apparently, at this jail what was
prejudice and allowed Graham additional time to conduct                wrong, and he did not disclose what his medical need
further discovery and to amend her complaint. She made no              was. So I have to grant the motion for summary
attempt to file an amended complaint during the allotted time.         judgment in this case.
On February 4, 2002, the County renewed its motion for
summary judgment and, on February 11, filed a motion for           After granting the County’s motion for summary judgment,
sanctions pursuant to Federal Rule of Civil Procedure 11           the district court denied Graham’s motion to file the amended
based upon Graham’s failure to withdraw the case in light of       complaint. Graham later filed a motion for reconsideration,
this Court’s decision in Watkins v. Battle Creek, 273 F.3d 682     which was denied on April 12. She also filed a medical
(6th Cir. 2001). In Watkins, we affirmed an award of               malpractice action against SecureCare and other defendants
summary judgment to individual and municipal defendants in         in Michigan state court, which apparently is still pending.
a section 1983 case arising out of the death of an individual
who, like Mr. Graham, died in police custody after secretly          After the completion of appellate briefing in this case, this
ingesting cocaine upon his arrest. Id.                             Court decided Weaver v. Shadoan, 340 F.3d 398 (6th Cir.
                                                                   2003), another case involving the death of an individual in
   On February 19, without requesting leave of the district        police custody after secretly ingesting cocaine. In Weaver,
court, Graham attempted to file an amended complaint that          we relied upon our recent decision in Watkins to reverse the
purportedly “clarified” her claim against the County and           district court’s denial of summary judgment to individual
asserted additional section 1983 claims, as well as a “medical     defendants on the plaintiff’s section 1983 claims. Id.
negligence” claim against various new defendants, including
SecureCare. The district court sua sponte rejected the               On appeal, Graham argues that the district court erred in
attempted filing. On February 25, Graham filed a motion for        granting summary judgment in favor of the County, in
leave to file the newly amended complaint.                         denying her motion to file an amended complaint and in
No. 02-1614               Graham v. County of Washtenaw                  7    8       Graham v. County of Washtenaw                       No. 02-1614

denying her motion for reconsideration.                 We find these         that municipal liability under section 1983 may only attach
arguments to be without merit.                                                where the “execution of a government’s policy or custom,
                                                                              whether made by its lawmakers or by those whose edicts or
                           II. ANALYSIS                                       acts may fairly be said to represent official policy, inflicts the
                                                                              injury” complained of. Thus, Graham must prove two basic
  We review de novo the district court’s grant of summary                     elements: (1) that a constitutional violation occurred; and
judgment in favor of the County. Dotson v. Wilkinson, 329                     (2) that the County “is responsible for that violation.” Doe v.
F.3d 463, 466 (6th Cir. 2003). Summary judgment should be                     Claiborne Cty., 103 F.3d 495, 505-06 (6th Cir. 1996). Our
granted when “the pleadings, depositions, answers to                          decisions in Watkins and Weaver, discussed above, would be
interrogatories, and admissions on file, together with the                    relevant to the first element – i.e., whether Mr. Graham
affidavits, if any, show that there is no genuine issue as to any             suffered a deprivation of his constitutional right to adequate
material fact and that the moving party is entitled to a                      medical care.4 We need not decide that issue, however,
judgment as a matter of law.” FED . R. CIV . P. 56(c). In                     because we find that even assuming that a constitutional
determining whether a genuine issue of material fact exists,                  violation occurred, the County cannot be held liable for it.
we must draw all reasonable inferences in favor of Graham,
as the nonmoving party. Bonds v. Cox, 20 F.3d 697, 701 (6th                     A plaintiff asserting a section 1983 claim on the basis of a
Cir. 1994).                                                                   municipal custom or policy must “identify the policy, connect
                                                                              the policy to the [County] itself and show that the particular
                      A. Section 1983 Claim                                   injury was incurred because of the execution of that policy.”
                                                                              Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir.),
  The essence of the section 1983 claim is that Mr. Graham                    cert. denied, 510 U.S. 826 (1994). Graham’s claim is based
suffered a violation of his right to adequate medical care                    upon the County’s contract with SecureCare, which gives
while in custody and that the County’s policy regarding the                   SecureCare responsibility over the provision of medical care
provision of medical care to its prisoners – as embodied in its
contract with SecureCare – led to that constitutional
violation.3 This claim implicates the familiar principles set
                                                                                  4
forth in Monell v. Department of Social Services, 436 U.S.                           Our decisions in Watkins and Weaver centered upon whether
658, 694 (1978). In Monell, the Supreme Court explained                       individual defend ants committed a constitutional violation by virtue of
                                                                              their deliberate indifference to the serious medical needs of the respective
                                                                              decedents. W hile one mun icipal liab ility claim was asserted in Watkins,
    3
                                                                              we did not discuss in much detail the merits of that claim, explaining
      The parties agree that M r. Gra ham had a constitutional righ t to      simply that “[i]f no constitutional violation by the individual defendants
adequate medical care while in the custody of the C ounty. Farmer v.          is established, the municipal defendants cannot be held liable under
Brennan, 511 U .S. 825, 832 (199 4); Estelle v. Ga mb le, 429 U.S. 97, 104    § 19 83.” Watkins, 273 F.3d at 687 (citing City of Los Angeles v. Heller,
(1976). It is well established that “deliberate indifference to the serious   475 U .S. 796, 799 (198 6)). Thus, in light of our conclusion that none of
medical needs of prisoners” constitutes cruel and unusua l punishment in      the individual defendants had committed a constitutional violation, we
violation of the E ighth Amendment. Estelle, 429 U.S. at 104. W hile the      held that summary judgment was properly granted on the municipal
Eighth Amendment does not apply to pretrial detainees such as Graham,         liability claim as a matter of course. Id. This case is different fro m bo th
the Fourteenth Amendment affords pretrial detainees a due process right       Watkins and Weaver in that there are no claims asserted against individual
to adeq uate medical treatment that is analogous to the Eighth Amendment      defenda nts; the focus is solely upon the County’s liability. Therefore,
rights of priso ners. City of Revere v. Mass. Gen. Hosp., 463 U.S. 239,       desp ite the factual similarities b etween this case and Watkins and Weaver,
244 (1983).                                                                   our opinions in tho se case s do not auto matica lly compel the outcome here.
No. 02-1614           Graham v. County of Washtenaw           9    10       Graham v. County of Washtenaw                      No. 02-1614

to prisoners in the County jail. The County concedes that this     some medical decisions that are beyond their competence
contract constitutes a municipal “policy” within the meaning       under Michigan law. This assertion is based primarily upon
of Monell.                                                         an affidavit of a licensed practical nurse named Cynthia
                                                                   Bailey,5 but no legal authority is cited.
  The primary issue is whether Graham has alleged sufficient
facts to establish that the alleged constitutional violation         Thus, the crux of Graham’s argument is that the County’s
happened “because of the execution of [the County’s] policy.”      policy was responsible for the alleged constitutional violation
Id. (emphasis added). There must be “a direct causal link”         in this case because “the booking deputies deferred to Nurse
between the policy and the alleged constitutional violation        Lakatos” – who was unqualified under Michigan law to make
such that the County’s “deliberate conduct” can be deemed          certain decisions concerning Mr. Graham’s treatment that the
the “moving force” behind the violation. Waters v. City of         contract permitted her to make – “and retained [Mr. Graham]
Morristown, 242 F.3d 353, 362 (6th Cir. 2001) (citing Bd. of       in a general population cell without referring him for
Cty. Comm’rs v. Brown, 520 U.S. 397, 404 (1997)) (quotation        emergency medical treatment/evaluation because of the
marks omitted); see also Searcy v. City of Dayton, 38 F.3d         County’s policy of deference . . . .”
282, 286 (6th Cir. 1994). These stringent standards are
“necessary to avoid de facto respondeat superior liability            Contrary to Graham’s assertions, we find nothing in the
explicitly prohibited by Monell.” Doe, 103 F.3d at 508.            County’s policy that is actionable under section 1983.
Applying these standards, we conclude that Graham has failed       Graham concedes that it is not unconstitutional for
to establish the requisite causal link between the County’s        municipalities to hire independent medical professionals to
policy and the alleged constitutional violation.                   provide on-site health care to prisoners in their jails. Nor is
                                                                   it unconstitutional for municipalities and their employees “to
  As noted, Graham believes that two particular aspects of         rely on medical judgments made by medical professionals
the contract are most problematic. First, she argues that the
contract impermissibly creates a policy of “automatic
deference” by jail personnel to SecureCare medical staff with           5
                                                                         The County claim s that Bailey’s affidavit, as well as the affidavits
respect to decisions concerning prisoners’ medical treatment.      of two other individuals, were deemed inadmissible by the district court
According to Graham, that so-called automatic deference            and, accordingly, should not be considered part of the record on ap peal.
policy is reflected in a provision stating that SecureCare “will   The record contains no written district court order declaring the affidavits
                                                                   inadmissible, nor do the transcripts reveal a ruling from the bench to that
have the responsibility of determining whether emergency           effect. The only pronouncement by the district court on this subject is a
services and/or hospitalization are necessary.” Additionally,      passing statement during an o ral argument in which the judge stated :
she relies upon a “Medical Autonomy” standard appearing in
the “SecureCare, Inc. Washtenaw County Sheriff Department               That’s all right. The C ourt is not going to co nsider those
Policies and Procedures Manual,” which reads: “PURPOSE:                 affidavits and I don’t think they’re helpful at any rate at this
                                                                        stage of events. I’m going to deny this motion without prejudice
To insure that members of the medical, dental and mental                for summary judgment and give the plaintiff 60 days to attempt
health staff have autonomy relative to professional judgement           to rectify the things that have not been done in this case.
in their respective profession.”
                                                                   However, while that statement indicates the co urt’s unwillingness to
  Graham also challenges the contract on the ground that it        consider the affidavits at that particular time, it does not represent a
permits licensed practical nurses, like Nurse Lakatos, to make     definitive ruling as to the admissibility of the affidavits. Thus, it appears
                                                                   that the affidavits are properly p art of the record on app eal.
No. 02-1614                Graham v. County of Washtenaw                  11     12    Graham v. County of Washtenaw                 No. 02-1614

responsible for prisoner care.” Ronayne v. Ficano, No. 98-                       a constitutional violation. But even assuming that Graham
1135, 1998 WL 183479, at *3 (6th Cir. Mar. 15, 1999)                             did suffer a constitutional violation, that violation “resulted
(unpublished opinion). In fact, most would find such a policy                    from factors other than a faulty [County policy].” City of
laudable in many respects. Not only does such a policy – like                    Canton v. Harris, 489 U.S. 378, 390-91 (1989) (citations
the one at issue in this case – allow prisoners to receive                       omitted).
prompt health care from on-site doctors or nurses, it also
ensures that an independent party, rather than a corrections                        There can be no municipal liability where “an otherwise
officer, makes the critical decisions about whether and at                       sound program has occasionally been negligently
what point a prisoner’s medical needs are sufficiently severe                    administered.” Id. at 391. The fact that individual actors may
that ambulatory care or hospitalization is warranted.                            “occasionally make mistakes . . . says little about the . . . legal
                                                                                 basis for holding the [County] liable.” Id. Yet that is
   Graham’s argument is essentially that the County’s policy                     precisely the essence of Graham’s claim in this case. The
did not, in this particular case, adequately address Mr.                         allegations in her complaint focus primarily upon the
Graham’s specific medical needs. That may be so.6                                inadequacy of the medical treatment that was provided to Mr.
However, “[t]he fact that alternative procedures might have                      Graham by SecureCare and its staff. However, “[w]here a
better addressed [a prisoner’s] particular needs does not show                   prisoner has received some medical attention and the dispute
that the [County was] deliberately indifferent to his medical                    is over the adequacy of the treatment, federal courts are
needs.” Id. Even if, as Graham contends, the policy required                     generally reluctant to second guess medical judgments and to
jail personnel to defer to the medical decisions of SecureCare                   constitutionalize claims that sound in state tort law.”
employees, and even if it permitted licensed practical nurses                    Westlake v. Lucas, 537 F.2d 857, 860, n.5 (6th Cir. 1976).
to make medical decisions that Michigan law does not permit                      Perhaps in recognition of the fact that her complaint is more
them to make, those alleged defects are insufficient to hold                     properly remediable under state law, Graham has filed a
the County liable for the alleged constitutional violation in                    medical malpractice lawsuit in Michigan state court against
this case. It is possible that Mr. Graham received medical                       SecureCare and others arising from the same events that
care that fell below the applicable standard of care under                       underlie this lawsuit.
Michigan law. It is even possible that the medical care that he
received was so woefully inadequate as to rise to the level of                     In sum, the County instituted its policy regarding the
                                                                                 provision of medical care to prisoners undoubtedly in an
                                                                                 effort to improve the quality of their medical care. Even if
    6                                                                            Mr. Graham received constitutionally inadequate medical
      In fact, as this and other recent case s such as Watkin s and Weaver
have confirm ed, it is not unusual for individuals to ingest narcotics           care, there is simply no evidence that the policy was the
surrep titiously in an attempt to hide them from the police, and then to         “moving force” behind that constitutional violation. Waters,
conceal that illegal ac tivity while in custody – even w hen they become         242 F.3d at 362. Under the circumstances presented in this
dangerously ill – out of fear of prosecution. This dangerous practice
prese nts a significant problem for the law enforcement comm unity. It
                                                                                 case, the section 1983 claim against the County was properly
appears that, in general, more should be done in order to ensure that            dismissed.
arresting officers prevent, to the best of their ability, individuals from
ingesting narco tics in the first place, as well as to ensure that individuals
who show symptoms of a drug overdose while in custody obtain the
med ical care that they so urgently need , desp ite their po ssible reluctance
to reveal the true nature of their condition.
No. 02-1614               Graham v. County of Washtenaw                13    14   Graham v. County of Washtenaw           No. 02-1614

                     B. Amended Complaint                                    We agree with the district court’s characterization of the
                                                                             motion and, thus, find no abuse of discretion.
  Graham also challenges the district court’s denial of her
motion for leave to file a proposed amended complaint, which                                   III. CONCLUSION
purportedly “clarified” her municipal liability claim against
the County and asserted new claims against SecureCare and                      For the reasons discussed above, the district court’s
Nurse Lakatos, along with Jeannette Figurel (a SecureCare                    judgment is AFFIRMED.
medical assistant) and corrections officers Dwight Settles and
Jay Klimowicz. Because her original complaint had already
been properly dismissed, however, there was no complaint
pending for Graham to amend. Under these circumstances,
we find that the district court did not abuse its discretion in
refusing to permit an amended complaint to be filed at that
point.7
                 C. Motion for Reconsideration
  Finally, Graham appeals the district court’s denial of her
motion for reconsideration. In its written order denying the
motion, the district court explained that under Eastern District
of Michigan Local Rule 7.1(g)(1)-(3), “[g]enerally, and
without restricting the court’s discretion, the court will not
grant motions for rehearing or reconsideration that merely
present the same issues ruled upon by the court, either
expressly or by reasonable implication. The movant must not
only demonstrate a palpable defect by which the court and the
parties have been misled but also show that correcting the
defect will result in a different disposition of the case.” In the
district court’s view, Graham’s motion for reconsideration
merely raised arguments that were already ruled upon; it
failed to show either a reason justifying relief from the
judgment or a palpable defect by which the court was misled.


    7
       Presumably, after the district court denied her motion for leave to
file the amended complaint, Graham could have simply filed a separate
lawsuit alleging the new claims (other than, of course, the section 1983
claim against the Co unty, which was d ismissed with prejudice). It is
unclea r why she chose not to pursue that option.
