                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a1183n.06

                                           No. 11-1523                                    FILED
                                                                                      Nov 20, 2012
                          UNITED STATES COURT OF APPEALS                         DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


SUETTA SMITH, as Personal Representative of the          )
Estate of Brenda Sue Smith, Deceased,                    )
                                                         )         ON APPEAL FROM THE
       Plaintiff-Appellee.                               )         UNITED STATES DISTRICT
                                                         )         COURT FOR THE EASTERN
v.                                                       )         DISTRICT OF MICHIGAN
                                                         )
COUNTY OF LENAWEE; PAUL DYE, Sgt.; J.                    )                  OPINION
CRAIG, Sgt.; WENDY VANDERPOOL, Officer;                  )
BENNICE BAKER; ADAM ONDROVICK, Officer;                  )
ERIC WESTGATE,                                           )
                                                         )
       Defendants-Appellants.                            )




BEFORE: BOGGS, NORRIS and KETHLEDGE, Circuit Judges.

       ALAN E. NORRIS, Circuit Judge. Plaintiff Suetta Smith filed suit on behalf of her

deceased daughter Brenda Smith, who died while incarcerated in the Lenawee County, Michigan jail.

Smith was taken into custody for a parole violation on Friday, April 27, 2007. The following

Monday morning she died of a seizure brought on by delirium tremens. The two-count amended

complaint alleges deliberate indifference to her serious medical needs in violation of 42 U.S.C.

§ 1983 and gross negligence under Michigan law. The amended complaint names the County, the

sheriff, the off-site doctor in charge of medical care, and various jail employees as defendants. The

district court denied summary judgment to all but two of the named defendants. With the exception

of the doctor, they appeal that denial. We affirm in part and reverse in part.
No. 11-1523
Smith v. Lenawee Cnty., et al.

                                                I.

       Smith arrived at the Lenawee County Jail at approximately 5 p.m. on Friday, April 27, 2007.

The daytime shift supervisor, Sergeant Mary Neill, frisked her on arrival. That evening Neill spoke

with the jail’s medical director, Dr. Jeffrey Stickney, by telephone. Neill told him, “She says she

drinks everyday, she’s an alcoholic. Um, she’s shaking really bad.” He responded by saying that

“I’ll order some stuff tomorrow.”

       At the time of her arrival, Smith, who was 37, was taking high blood pressure medication and

Dilantin, an anti-epileptic drug to control seizures that had begun some six months earlier.

Dr. Stickney prescribed Librium after speaking with Neill. Smith took her first dose at 9:35 that

evening. Neill noted in a “pass-on” sheet that it was ordered for “alcohol withdrawal.”

       Sergeant Paul Dye took over as shift commander at 7 p.m. on Friday and worked until 7 the

following morning. He noted that Smith was suffering from “DTs” in a pass-on sheet. That evening

Smith spoke to her mother, Suetta Smith, and told her “I better get some medical attention here

because I’m going to go through withdrawals. I’m already shaking like a leaf.”

       At 7 a.m. on Saturday morning, Sergeant Neill relieved Dye. Dye returned that evening for

the overnight shift. At 3:30 on Sunday morning, Dye noted that Smith was exhibiting “paranoid

behavior and irrational actions.” She was singing, pounding on the walls, and talking to relatives

who were not present.

       As the day progressed, Adam Ondrovick, an intake officer, saw her speaking to people who

did not exist. He was replaced at 7 p.m. by intake officer Wendy Vanderpool. In her deposition,



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Vanderpool recalled that Smith was “agitated, talking about things in her life as if she was there and

then she was back, you know, in the jail.”

       Sergeant Dye was also on duty Sunday night and stayed until 3 a.m. on Monday morning.

He moved Smith to a padded observation cell. He called Dr. Stickney at 9:26 p.m. and told him that

she was “to the point of really bad hallucinations right now.” Dye reported that Smith had not eaten

lunch, was “getting kind of violent about wanting to get out of her cell,” and was generally agitated.

Stickney replied that “she’s on good medicine” and that he would have the part-time jail nurse

examine Smith the following day. Stickney also said, “Sitting in the jail will do her some good.”

       Wendy Vanderpool was on duty from 7 p.m. on Sunday until Smith died at ten on the

following morning. At her deposition, Vanderpool testified that Smith was “sweaty from holding

that wall up.” In other words, Smith was so delusional that she thought that the wall would fall

down without her. Vanderpool affirmed that Smith was in a padded observation cell. By 5 a.m. on

Monday, she noted that Smith was “getting more settled.” She was “on the floor playing with puppy

dogs and playing with bugs.”

       At 7 a.m. Sergeant Craig took over as shift commander. After Smith’s death Detective David

Seeburger prepared a death investigation report, which included a timeline of Smith’s final hours

based upon a videotape of the cell. According to this timeline, at 8:46 a.m. Smith was on her

buttocks and knees with her upper torso resting on the cell’s bench. A minute later, Craig entered

the cell and set a cup of water near Smith, which she did not touch. He looked at her but left the cell

seconds later. At that point, Smith was “still moving her hands and feet and head occasionally.”



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       Craig told Vanderpool to monitor Smith every fifteen minutes. Vanderpool was assisted by

intake officer Bennice Baker who started her first day of work at the jail that morning.

       Around 9 a.m., officer Thomas Moore1 arrived to serve Smith with her parole violation

notice. However, he was unable to do so because of Smith’s condition. The videotape of Smith’s

cell reveals that she last moved at 9:19 a.m. At 9:50 a.m., corrections officers entered the cell,

observed that Smith was not breathing, and summoned help. Paramedics arrived five minutes later

and transported her to the hospital where she was pronounced dead at 11:22 a.m.

       As the district court recognized, the liability of each individual defendant must be analyzed

separately. Phillips v. Roane Cnty., Tenn., 534 F.3d 531, 542 (6th Cir. 2008). Additional facts will

be discussed in the context of those analyses, including the roles played by defendants Eric Westgate

and Adam Ondrovick whom we have no mentioned in this brief factual recitation.

                                                 II.

A. Jurisdiction

       For purposes of appeal, the district court’s rulings on both qualified immunity under federal

law and governmental immunity under Michigan law constitute final appealable orders. Smith, 600

F.3d at 689-90. We recognize that while the purely legal issue of qualified immunity is immediately

appealable under 28 U.S.C. § 1291, Mitchell v. Forsyth, 472 U.S. 511, 530 (1985), we lack

jurisdiction when the district court bases its denial of qualified immunity on “a ‘genuine’ issue of


1. The district court granted qualified immunity to Officer Moore on the deliberate indifference claim
but denied him summary judgment on the gross negligence claim. On appeal, we affirmed the
former judgment and reversed the denial of summary judgment on the gross negligence claim. Smith
v. Cnty. of Lenawee, 600 F.3d 686 (6th Cir. 2010).

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fact for trial.” Sabo v. City of Mentor, 657 F.3d 332, 335-36 (6th Cir. 2011) (quoting Johnson v.

Jones, 515 U.S. 304, 319 (1995)). In its opinion, the district court observed, “[t]he qualified

immunity issue in this case is fact-bound.” Nevertheless, “we have jurisdiction to consider an appeal

from a denial of qualified immunity if the defendant does not dispute the facts alleged by the plaintiff

for purposes of the appeal.” Bishop v. Hackel, 636 F.3d 757, 764 (6th Cir. 2011). Put differently,

defendant must concede the most favorable view of the facts to plaintiff to get past the jurisdictional

hurdle of Johnson. Id. at 764-65. We keep this precept in mind when assessing whether the facts

support a grant of qualified immunity.

B. Qualified Immunity

        Government officials are immune from civil liability under 42 U.S.C. § 1983 when

performing discretionary duties, provided “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 (1982). We apply a two-pronged test to determine whether qualified immunity shields

a government official from a § 1983 claim: (1) we inquire whether the facts, viewed in the light most

favorable to the nonmoving party, “show the officer’s conduct violated a constitutional right;” and

(2) if so, then we determine whether the constitutional right was clearly established by asking

whether “a reasonable official would understand that what he is doing violates that right.” Saucier

v. Katz, 533 U.S. 194, 201-02 (2001), abrogated in part by Pearson v. Callahan, 555 U.S. 223, 236

(2009). We review a district court’s denial of summary judgment based upon the defense of

qualified immunity de novo. Bishop, 636 F.3d at 765.



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C. Deliberate Indifference

       While a claim of deliberate indifference to the serious medical needs of an inmate falls under

the protection of the Eighth Amendment, that amendment does not apply to pretrial detainees like

plaintiff Smith. In those cases, our analysis is essentially the same but falls under the Fourteenth

Amendment. See Watkins v. City of Battle Creek, 273 F.3d 682, 685-86 (6th Cir. 2001) (under the

Fourteenth Amendment’s Due Process Clause pretrial detainees have a right to adequate medical

treatment that is analogous to the Eighth Amendment rights of prisoners).

       The contours of an deliberate indifference claim are as follows:

               The Eighth Amendment forbids prison officials from unnecessarily and
       wantonly inflicting pain” on an inmate by acting with deliberate indifference toward
       the inmate’s serious medical needs. . . . Whether a convicted prisoner or a pretrial
       detainee, deliberate indifference to one’s need for medical attention suffices for a
       claim under 42 U.S.C. § 1983. Prison officials’ deliberate indifference violates these
       rights [w]hen the indifference is manifested by . . . prison guards in intentionally
       denying or delaying access to medical care . . . for a serious medical need.

              A constitutional claim for denial of medical care has objective and subjective
       components. The objective component requires the existence of a sufficiently serious
       medical need. . . . The inmate must show that he is incarcerated under conditions
       posing a substantial risk of serious harm.

               The subjective component requires an inmate to show that prison officials
       have a sufficiently culpable state of mind in denying medical care. This subjective
       component should be determined in light of the prison authorities’ current attitudes
       and conduct. Deliberate indifference entails something more than mere negligence,
       but can be satisfied by something less than acts or omissions for the very purpose of
       causing harm or with knowledge that harm will result. [T]he 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. Knowledge of the asserted
       serious needs or of circumstances clearly indicating the existence of such needs, is
       essential to a finding of deliberate indifference.



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Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 895-96 (6th Cir. 2004) (citations omitted and

punctuation altered).

        Germane to this appeal is the following observation: “Where a prisoner has received some

medical attention and the dispute is over the adequacy of the treatment, federal courts are generally

reluctant to second guess medical judgments and to constitutionalize claims which sound in state tort

law.” Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976); see Alspaugh v. McConnell, 643

F.3d 162, 169 (6th Cir. 2011) (citing Westlake with approval). Furthermore, “[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.” Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004). “[A]bsent

a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or

not treating) a prisoner, a non-medical prison official . . . will not be chargeable with the Eighth

Amendment scienter requirement of deliberate indifference.” Id.

D. The Individual Defendants

        We now turn to the deliberate indifference claim lodged against each of the individual

defendants, recognizing that their entitlement to qualified immunity rests on the role each of them

played in the circumstances surrounding Brenda Smith’s death.

        1. Sergeant Dye

        Dye’s first encounter with Smith came at 7 p.m. on Friday, some two hours after she was

taken into custody. He worked the overnight shift, leaving at 7 on Saturday morning. He received

Sergeant Neill’s pass-on sheet, which noted that Smith had “meds ordered for alcohol withdrawal.”

When finishing his shift, Dye’s only notation with respect to Smith was “DT’s.”

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       Dye also worked the overnight shift beginning Saturday evening and concluding Sunday

morning. According to an incident report he prepared, that evening he observed that Smith began

to “experience paranoid behavior and irrational actions,” which included singing and pounding the

walls. However, he also noted that “she appeared to be in good spirits and functioning well

physically.”

       Dye was again on duty from 7 p.m. Sunday evening until 3 a.m. on Monday morning.

Shortly before 9 p.m., he moved Smith into a padded observation cell. According to his deposition

testimony, he did so because he was worried that Smith might harm herself accidentally. Soon

thereafter, he spoke with Dr. Stickney. Stickney testified that he told Dye he would have the nurse

look at Smith the following day. Dye’s pass-on sheet for that evening states, “Brenda Smith is very

ill w/DT an[d] w/d symptoms. Dr. Stickney was called.” He also wrote an incident report which

states that Dr. Stickney told him that “it sounded like she was on good medication and to keep her

safe and watch her.”

       Dye points out that plaintiff’s expert, Dr. Joseph Goldenson, conceded that he believed that

Dye adequately informed Dr. Stickney of Smith’s deteriorating condition, that it was appropriate for

Dye to follow Dr. Stickney’s medical orders, and that placing Smith in a padded cell was a safe

alternative for someone going through alcohol withdrawal.

       Dye clocked out at 3 a.m. on Monday morning and had no further contact with Smith before

she died several hours later. He takes the view that his responsibility was to consult with the doctor

as needed, which he did, follow that advice, and take measures in response to any deterioration of

Smith’s condition.

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       The district court reached a different conclusion. It focused on the fact that Dye understood

the seriousness of delirium tremens and that it was on his watch that “Smith’s DTs took a harsh turn

for the worse.” In the court’s view, consulting with Dr. Stickney was not Dye’s only recourse. The

Jail Policy states that “[i]f at any time during contact with an Offender Inmate an employee identifies

an injury or need for medical attention, the Jail Shift Commander will be notified and medical

treatment will be provided. Emergency treatment will be provided at Bixby Hospital.” The court

concluded, “The evidence supports a conclusion that Dye violated Smith’s clearly established

constitutional rights by disregarding a known risk of serious harm to Smith and taking no action to

contact emergency medical services on April 29, 2007.”

       We respectfully disagree. Even if we view the facts, as we must, in a light most favorable

to plaintiff, Sergeant Dye is entitled to summary judgment based upon qualified immunity. There

is no question that plaintiff established the objective component of her deliberate indifference claim,

i.e., that a serious medical need existed. Defendants, and Sergeant Dye in particular, recognized that

Smith was suffering from delirium tremens. However, “[d]eliberate indifference is not mere

negligence.” Watkins, 273 F.3d at 686. To meet the subjective component of her claim, plaintiff

must establish that Dye had a sufficiently culpable state of mind in denying or delaying medical care.

Blackmore, 390 F.3d at 895 (quoting Brown v. Bargery, 207 F.3d 863, 867 (6th Cir. 2000)). In

retrospect, Dye should have summoned an ambulance. He did not exhibit deliberate indifference

to Smith’s plight, however. He took her to an observation cell for her own protection and called Dr.

Stickney who assured him that she was on “good medicine” and advised that he would have the

nurse see her in the morning. As the Third Circuit has said, “[A]bsent a reason to believe (or actual

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knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner, a non-

medical prison official . . . will not be chargeable with the Eighth Amendment scienter requirement

of deliberate indifference.” Spruill, 372 F.3d at 236. As the Supreme Court has stated, “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.” Farmer v. Brennan, 511 U.S. 825, 837

(1994) (emphasis added). Dr. Stickney assured Sergeant Dye that Smith was on proper medication

and that being held in the jail at that juncture would do her good. Under the circumstances,

therefore, it is understandable that Sergeant Dye did not draw the inference that Smith was at

substantial risk of serious harm even though he recognized that she was suffering from delirium

tremens. For these reasons, we reverse the denial of summary judgment as to this defendant.

       2. Officer Westgate

       Defendant Eric Westgate had limited exposure to Smith’s situation. On Sunday evening he

was working on the floor above before taking over as shift commander for Sergeant Dye at 3 a.m.

on Monday and he remained on duty until 7 a.m. when Sergeant James Craig took over for him.

       According to Westgate’s deposition testimony, he read Sergeant Dye’s incident report about

Smith that detailed his conversation with Dr. Stickney. He also prepared an incident report that

noted Smith’s failure to eat breakfast or to drink anything that morning. He observed that she had

not slept and “was yelling at her relatives all night and morning.” The report recommended a follow-

up by medical personnel. He testified that it was obvious to him that she needed to be seen by a

doctor. He also conceded that he could not recall whether he told Sergeant Craig that Smith needed

to be seen by the nurse and he did not call Dr. Stickney.

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       The district court focused upon Westgate’s statement that he realized Smith needed to be

seen by a doctor and yet failed to contact one:

       Westgate appreciated that DT could be a serious condition and could be lethal. It
       was also within his undisputed authority to contact emergency personnel. . . . A jury
       could conclude that Westgate’s delay in providing medical care to Smith under the
       circumstances could constitute deliberate indifference.

       In our view, Sergeant Westgate is entitled to qualified immunity for essentially the same

reasons that we reach that result with respect to Sergeant Dye. First, he had only a four-hour

exposure to Smith. Second, he documented his concern about her not eating in an incident report

that was placed in the nurse’s inbox, which Sergeant Craig, another shift supervisor, testified was

the appropriate routine. Third, he had read Dye’s incident report concerning his conversation with

Dr. Stickney and was therefore aware that the doctor felt that Smith’s continued presence in the jail

was appropriate. In short, like Dye, his failure to obtain more timely medical intervention for Smith

is deeply regrettable with the benefit of hindsight, but it does not amount to deliberate indifference.

       3. Sergeant James Craig

       Sergeant Craig took over as shift commander on Monday at 7 a.m., just a few hours before

Smith died. He reviewed the pass-on sheets and incident reports from the weekend and spoke with

Westgate. In his deposition, he testified that he recalled being informed that Smith was suffering

from delirium tremens and that Dr. Stickney had prescribed medication.

       Craig asked intake officer Wendy Vanderpool keep an eye on Smith. As described earlier,

the cell videotape reveals that Smith was on her buttocks and knees with her torso thrown on her

bunk when Craig briefly entered the cell and set a cup of water near her. Vanderpool turned on the


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microphone to monitor the sound in Smith’s cell and checked her visually every fifteen minutes. She

was assisted by defendant Bennice Baker who had just started her first day of work. Baker watched

Smith for about thirty minutes.

       Sometime before 10 a.m., Craig asked Baker into his office for an orientation interview. Not

long thereafter, Vanderpool called for help because Smith had lost consciousness. Officers used a

defibrillator to try to revive Smith and called EMS.

       In Craig’s view, he reasonably responded to Smith’s medical needs by ordering that she be

monitored. He also knew that she was receiving medications for her medical problems and that she

had been resting more quietly over the past few hours than she had during the previous day. He

analogizes his situation to that described in Harrison v. Ash, 539 F.3d 510, 519 (6th Cir. 2008),

where we held that jail officers were not deliberately indifferent to the serious medical needs of an

inmate with asthma because they monitored and, belatedly, summoned medical aid. Despite these

efforts, the inmate died.

       The district court disagreed and offered this analysis:

               Sergeant Craig’s first and only personal encounter with the decedent occurred
       around 8:46 a.m. After Officer Vanderpool told Craig that Smith was holding onto
       her empty cup, Craig went into the cell, took her cup, filled it with water, and brought
       it back a minute later. He found Smith “on her knees and maybe on her elbows” on
       the floor by the bench-type elevation. Although Craig testified that he “asked her
       how she was doing,” in response to which she “did say something that was
       inaudible,” the video recording of the cell suggests otherwise. Smith is seen sprawled
       out on the floor by the elevated bench and not reacting to Craig’s presence. Although
       the video does not contain a sound track, Craig is seen getting in and out of Smith’s
       cell both times very quickly, briskly putting the cup with water by Smith’s body the
       second time, and not checking Smith’s vital signs or focusing his eyes on her. By the
       time of his visit, Smith could only slightly twitch her hands. At that point, Smith was
       a mere half an hour away from her last movement.

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The court also cites Craig’s deposition testimony that Smith was sweating profusely and had been

suffering delirium tremens throughout the night. Because he was aware of the seriousness of Smith’s

medical situation and failed to address it (and instead met with Officer Baker), the court denied

summary judgment based upon qualified immunity.

        Sergeant Craig’s entitlement to qualified immunity presents a close question. Like his fellow

officers, he was aware of Smith’s situation but likewise knew that she was on medication and in a

“safe” environment. What distinguishes his situation from those of defendants Dye and Westgate,

however, is that he encountered Smith in her last hour, at a time when she was unresponsive and

sweating profusely. He was on notice that she was very ill and yet did nothing to make sure that

Smith had not taken a turn for the worse. Rather than ascertain her condition, he left the cell in after

only a minute to meet with his new intake officer. Viewing these facts in a light most favorable to

plaintiff, we agree with the district court’s conclusion that Craig is not entitled to qualified immunity.

        4. Officer Bennice Baker

        Officer Baker arrived for her very first day of work at 7 a.m. on Monday, April 30th, just

three hours before EMS was summoned for Smith. She was asked to help monitor Smith by Officer

Vanderpool. She did so for approximately thirty minutes. The district court thought that, because

Baker had been trained to distinguish the symptoms of both alcohol withdrawal and delirium

tremens, she should have recognized the seriousness of Smith’s condition and denied her qualified

immunity. It noted, however, that hers was a close case.

        We agree but believe that the balance tips in favor of qualified immunity with respect to

Baker. Notably, it was her first day on the job. She arrived and was provided a task by two more

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experienced colleagues: Vanderpool and Craig. She did what was asked of her. Admittedly, she

failed to detect the seriousness of Smith’s condition, but she lacked the background information

about Smith that Sergeant Craig and Officer Vanderpool had. After thirty minutes of observation,

she was summoned by Sergeant Craig for an orientation session. Even when we view the facts in

a light most favorable to plaintiff, we are unable to conclude that they establish the subjective

component required to prevail on a claim of deliberate indifference. To do so would require us to

conclude that Baker actually inferred that a substantial risk of serious harm existed. Farmer, 511

U.S. at 837. We decline to do that. It was her first day on the job, she observed Smith for only thirty

minutes, and did not have nearly as much knowledge about the medical situation as did her

colleagues. As we explained earlier, “deliberate indifference ‘entails something more than mere

negligence.’” Blackmore, 390 F.3d at 895 (quoting Farmer, 511 U.S. at 835).

       5. Officer Adam Ondrovick

       Officer Ondrovick booked Smith when she arrived at the jail on Friday. He also saw her

during the day shifts on Saturday and Sunday. As with Baker, the district court recognized his as

a “close case.” However, it pointed out that Ondrovick observed Smith talking to herself on Sunday

and recognized that she was experiencing some form of alcohol withdrawal.

       In his deposition, Ondrovick stated that he did not know specifically what delirium tremens

was but he recognized that Smith was going through alcohol withdrawal. He contends that he was

attentive to Smith’s needs by alerting Sergeant Neill (to whom the district court granted qualified

immunity) to the fact that Smith was on seizure medication. Further, he was not present when her

condition began to deteriorate seriously on Sunday evening. In short, his contention is that he was

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unable to draw the inference that Smith was in a serious medical state and therefore he could not

have acted with deliberate indifference towards her.

        We are of a like mind. Officer Ondrovick was not present when Smith’s condition to took

a desperate turn and, while he observed her suffering from alcohol withdrawal, he had reason to

assume that her condition was being treated. More importantly, he performed his duties. That he

did not take the extra step of bringing the need for more aggressive intervention to his superiors, that

failure at most – and we doubt even this – amounts only to negligence. Accordingly, we hold that

Officer Ondrovick is entitled to summary judgment based upon qualified immunity.

        6. Officer Wendy Vanderpool

        In denying her qualified immunity, the district court observed that Officer Vanderpool

monitored Smith for the longest period: from 7 p.m. on Sunday until her death the following

morning. She also had worked as an emergency medical technician for fourteen years. It concluded

that she should have recognized the peril Smith was in:

                Although Vanderpool denies that she had realized that Smith needed to see
        a doctor, she was “aware of facts from which the inference could be drawn that a
        substantial risk of serious harm exist[ed],” Farmer, 511 U.S. at 837, and a jury could
        conclude that she in fact drew that inference. For example, Vanderpool realized that
        Smith needed to have fluid intake, and even recruited Officer Baker to help her
        monitor Smith. Add to this situation Vanderpool’s failure to check on Smith for a
        forty-minute period between [parole officer ] Moore’s visit and the discovery that
        Smith did not breathe–in violation of Policy 4.1.1 requiring physical monitoring of
        special needs inmates at least once every fifteen minutes–and a jury could find that
        Vanderpool was deliberately indifferent to Smith’s serious medical condition.




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        Officer Vanderpool contends that she monitored Smith through the window of the cell door.

Moreover, she knew that Smith was on medication prescribed by Dr. Stickney and she saw no need

to second guess his judgment.

        Once again, her case represents an extremely close call, but, as with Sergeant Craig, our duty

to construe the facts in a light most favorable to plaintiff compels us to affirm the denial of qualified

immunity. Officer Vanderpool, like Sergeant Craig, was present when Smith died. Her exposure

to Smith’s condition, her experience, and her inadequate monitoring of a detainee whom she knew

to be in dire condition are enough to allow the claim of deliberate indifference to go to a jury.

E. The County’s Liability

        The district court concluded that the record “establishes a genuine issue of material fact as

to Lenawee County’s liability for deliberate indifference.” While the County did not have a written

policy that violated Smith’s constitutional rights, she can prevail if she establishes that it had a clear

and persistent pattern of such violations. See Jones v. City of Cincinnati, 521 F.3d 555, 560 (6th Cir.

2008). The custom “‘must be the moving force of the constitutional violation’ to establish the

liability of the government body.” Id. (quoting Polk Cnty. v. Dodson, 454 U.S. 312, 326 (1981)).

The district court looked to City of Canton, Ohio v. Harris, 489 U.S. 378, 388-91 (1989), for the

proposition that a municipality may be held liable for failure to train its employees if that failure

amounts to deliberate indifference to the rights of the persons with whom the municipality’s

employees come into contact. However, that failure to train must also have actually caused the

employees’ indifference to the plaintiff’s medical needs. See Blackmore, 390 F.3d at 900 (finding



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liability where the seriousness of prisoner’s medical need was obvious and the county lacked policy,

practices, and adequate training).

       The district court considered the employment contract between the County and Dr. Stickney.

One of its provisions was that he would collaborate with the County jail’s public health nurse to

develop policies that would manage “specific health problems,” implement standing orders for

addressing them, and thereby provide care for “prisoners with specific problems.” The court found

that “such protocols were never developed.” During his deposition, Dr. Stickney was asked about

his conversations with jail personnel regarding Brenda Smith. He observed, “I told you repeatedly

that I’ve got untrained people giving me information and I have to temper that very carefully and

consider it in a very broad sense because I don’t have a nurse or doctor telling me that information,

I’ve got often people that just graduated from high school without any training in what they’re trying

to convey.” In other words, the County allowed untrained officers to make medical assessments and

then convey them to an off-site physician.

       In addition, the district court cited a report prepared by Jail Commander Dennis Steenrod to

Undersheriff Gail Dotson. This report, dated April 2, 2007, was requested by Sheriff Lawrence

Richardson after the death of Yolanda Flores, a detainee who died in custody just months before

Smith. Steenrod was asked to assess the adequacy of the jail’s medical care. His report was

prepared just three weeks before Smith’s untimely death. Steenrod concluded that “[w]e are

exposing Lenawee County, the Board of Commissioners, and the Sheriff to a tremendous amount

of liability if we do not make improvements to the inmate health care system.” Among other things,

Steenrod recommended that the jail have a nurse on duty at least sixteen hours a day, rather than the

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then-current average of 2.6, employ an on-site physician at least three hours a week, and provide

trained medical personnel to make all medical decisions. Sadly, the Board of Commissioners

approved these proposals on April 10 but they were not put into place until June 1, 2007.

        Plaintiff’s expert, Jeff Eiser, a criminal justice consultant, produced a report in which he

echoed Steenrod’s conclusion that the jail policies and procedures were inadequate. Specifically,

he stated that the administration and staff acted with deliberate indifference to the serious medical

needs of Brenda Smith by “failing to take corrective action after it became obvious that her serious

medical condition was deteriorating.” He also found that the “policy and practice of the Lenawee

County Jail and Sheriff Lawrence Richardson, Jr. of using untrained corrections officers to make

initial medical assessments and referrals on inmates violates clearly established corrections industry

standards and practices.”

        Based upon this information, as well as certain officers’ admissions that they did not fully

grasp the difference between alcohol withdrawal and its more serious analogue, delirium tremens,

the district court concluded that “[t]here is a genuine issue of material fact as to the deliberate

indifference of the county.”

        We uphold the district court’s denial of summary judgment to the County. In our view, this

is not a close case–at least for purposes of summary judgment. As just explained, the record is

replete with facts that raise a genuine issue of material fact with respect to the County’s policies and

practices in providing medical care in its jail.




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F. Gross Negligence Claim

       In Michigan, employees of governmental agencies are immune from tort liability unless the

employees’ conduct amounts to “gross negligence that is the proximate cause of the injury or

damage.” Mich. Comp. Laws § 691.1407(2)(c). The same statute defines “gross negligence” as

“conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.”

Mich. Comp. Laws § 691.1407(7)(a).

       In our earlier opinion involving probation officer Moore, we explained the contours of the

proximate cause analysis in gross negligence claims:

               The Michigan Supreme Court has stated that, for the purposes of Michigan’s
       governmental immunity statute, proximate cause means “the one most immediate,
       efficient, and direct cause preceding an injury.” Robinson v. City of Detroit, 462
       Mich. 439, 613 N.W.2d 307, 317 (2000). In using this narrow definition, the court
       noted that the Michigan Legislature intentionally used the phrase “the proximate
       cause” in the statute, rather than “a proximate cause.” Id. The Robinson court
       overruled prior Michigan court precedent to the extent that the prior decisions
       interpreted “the proximate cause” to mean anything other than the sole proximate
       cause. Id. at 318. The court went on to hold that police officers were entitled to
       governmental immunity in a case where a passenger in a vehicle was killed after the
       vehicle’s driver led police on a high-speed chase. Id. at 313, 319. According to the
       Robinson court, no reasonable jury could find that the officers’ pursuit of the fleeing
       vehicle was the “one most immediate, efficient, and direct cause of the plaintiffs’
       injuries” because the actions of the driver who led police on the chase were the most
       immediate cause of the injuries. Id. at 319.

               In an unpublished decision, a Michigan appellate court determined that an
       investigating officer’s failure to give an inmate his blood pressure medication was
       not the proximate cause of the inmate’s subsequent death. Hartzell v. City of Warren,
       No. 252458, 2005 WL 1106360 at *16 (Mich.Ct.App. May 10, 2005). The evidence
       in Hartzell indicated that the defendant-officer was not the officer responsible for
       booking the decedent nor was he the detention officer responsible for the decedent
       during confinement. Id. at *15. While the evidence indicated that the officer’s
       conduct could have been a cause of the decedent’s death, the officer’s conduct was
       not the one most immediate cause of death because other evidence showed that

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       substandard medical care on the part of the jail’s nurse and physician was the most
       immediate cause of the death. Id. at *16.

               On the other hand, this court has determined that a nurse was not entitled to
       summary judgment on the issue of governmental immunity under Michigan’s
       immunity statute where the nurse provided inadequate treatment to an inmate
       suffering from heat exhaustion. Dominguez [v. Corr. Med. Servs.], 555 F.3d 543,
       546-48, 552-53 (6th Cir. 2009). The inmate in Dominguez had participated in an
       outdoor weight-training session prior to becoming ill, and his untreated condition
       ultimately led to quadriplegia and impaired communication abilities. Id. at 548. In
       denying the nurse’s motion for summary judgment, this court reasoned that a
       reasonable jury could conclude that the nurse’s actions were the proximate cause of
       the inmate’s injuries because the inmate’s condition continued to deteriorate after the
       exercise session and the inmate repeatedly sought care from the nurse. Id. at 553.

Smith, 600 F.3d at 691. The district court in this case concluded that little practical difference

existed between the federal deliberate indifference standard and “substantial lack of concern for

whether an injury results.” It went on to conclude that “there is evidence that each of the defendants

had the ability to intervene to help Brenda Smith in the last hours of her life.” In its view, that

evidence created a jury question which precluded summary judgment.

       Defendants admitted that Dr. Stickney’s failure to order her transferred to a hospital was a

proximate cause of her death. If that is the case, defendants ask, how can they be the proximate

cause of Smith’s injury? They cite Hartzell, the unpublished Michigan appellate decision discussed

in Smith, supra, in support. In that case, the court assumed that a defendant officer in the jail had

been grossly negligent. Hartzell, 2005 WL 1106360 at *16. However, it held that he was entitled

to governmental immunity for this reason:

       Plaintiff argues that decedent’s hypertension and failure to receive Catapres was the
       proximate cause of decedent’s death, thus, Officer Galasso as a person who failed to
       make sure he received this medication was the proximate cause. Plaintiff’s claims
       against Officer Galasso stem from his contact with decedent on July 25, 1998, before

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Smith v. Lenawee Cnty., et al.

        he was placed in the cell, and then again on July 27, 1998 when he was arraigned
        after which decedent was transferred to Macomb County Jail. Upon arrival at
        Macomb County Jail, decedent was examined by both Nurse Cisco and Dr. Bedia
        prior to when he was found unconscious in his cell on July 28, 1998. Clearly, the one
        most immediate, efficient, and direct cause of decedent’s death was not his contact
        with Officer Galasso and Officer Galasso’s failure to take action. Plaintiff’s
        affidavits of merit further support that Officer Galasso was not the proximate cause
        of decedent’s injuries as both Dr. Neil Farber and Nurse Gail Serrian indicate that the
        breach of the standard of care by Dr. Bedia and Nurse Cisco was the proximate cause
        of decedent’s death. Officer Galasso’s conduct, again assuming gross negligence,
        while a cause of decedent’s death, it was but one cause, and was therefore, not “the
        one most immediate, efficient, and direct cause” as required by Robinson.

Id. In other words, when a party takes the position–in this case through the affidavits of its

experts–that certain defendants are the proximate cause of an injury, other defendants who have less

culpability are off the hook because Robinson made clear that there can only be “one most

immediate, efficient, and direct cause preceding an injury.” Robinson, 613 N.W.2d at 311.

        Defendants raised this argument below and the district court dismissed it, reasoning that

“plaintiff is entitled to plead in the alternative. If there is evidence that tends to show that more than

one defendant’s gross negligence may have been ‘the’ proximate cause of Smith’s death, the plaintiff

may present that case to a jury.”

        In our view, the district court correctly concluded that defendants’ contention that their

admission that Dr. Stickney’s actions were the proximate cause of Smith’s death is not fatal to her

gross negligence claim. Plaintiff can plead in the alternative. We also agree with the district court

that the standards for making out a federal claim for deliberate indifference and a Michigan state law

claim for gross negligence are substantially similar. If anything, the hurdle required in the federal

context is more onerous because the defendant must have drawn the inference that a substantial risk


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Smith v. Lenawee Cnty., et al.

of serious harm existed. If follows, then, that those defendants to whom summary judgment based

upon qualified immunity is denied–Dr. Stickney, Sergeant Craig, and Officer Vanderpool–are

likewise not entitled to summary judgment with respect to the gross negligence claim. It is true that

only one of the can be the proximate cause. The identity of that party is up to a jury to decide.

                                                III.

       The judgment is affirmed in part and reversed in part. The cause is remanded for further

proceedings consistent with this opinion.




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       Kethledge, J., concurring in part and dissenting in part. I agree with the majority on all but

one issue. Specifically, I would affirm the district court’s denial of qualified immunity to Westgate.

Unlike Dye—who I think presents a close case, but who at least showed concern by putting Smith

in a padded cell and calling Dr. Stickney—Westgate basically took no action at all during his four-

hour shift on the night before Smith died. I also think he had ample time to observe Smith’s

condition, and that Stickney’s “advice” to Dye—which was dubious to begin with—was becoming

pretty stale by the end of Westgate’s shift. Thus, I agree with the district court that “[a] jury could

conclude that Westgate’s delay in providing medical care to Smith under the circumstances could

constitute deliberate indifference.”

       On that issue, then, I respectfully dissent. Otherwise I concur in the majority’s opinion.




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