Graham v. Washtenaw

Opinion

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.”

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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.