Rushing v. Wayne County

462 N.W.2d 23, 436 Mich. 247

• Court: Michigan Supreme Court
• Decided: September 20, 1990
• Docket: 74724, (Calendar No. 1)
• Status: Published

Opinions

Brickley, J.

I. INTRODUCTION

Plaintiff-appellant Linda Rushing appeals from the Court of Appeals affirmance of the trial court’s grant of a directed verdict in favor of defendantappellee Wayne County. Ms. Rushing claims that the county was liable under 42 USC 1983 for constitutional deprivations she allegedly sustained while a pretrial detainee at the Wayne County Jail. In particular, Ms. Rushing alleged that she was detained in a seminaked state for four days and exposed to repeated observation by members of the opposite sex during her detention. We believe that a reasonable jury could have found that the failure of the county to implement appropriate safeguards to protect against such exposure, in the face of a court-ordered suicide prevention plan mandating the removal of certain inmates’ garments, constituted a deliberate indifference to and moving force behind the deprivation of her constitutional rights. We therefore find that the motion should have been denied and the claim submitted to the jury. We reverse the judgment of the Court of Appeals only with respect to the portion of Ms. Rushing’s municipal liability claim under 42 USC 1983 involving her allegedly unnecessary exposure to members of the opposite sex. This case is remanded to the trial court for further proceedings.

II. PACTS AND PROCEDURAL HISTORY

A

Ms. Rushing was detained at the Wayne County Jail from June 8 to June 12, 1976. She testified regarding the following facts. She was taken to her cell by one female and two male deputies. A male deputy ordered Ms. Rushing to remove her clothes. After she removed her outer garments, she asked whether she could keep her underpants and brassiere. The male deputy insisted that she disrobe completely. After she took off her bra and handed it to the male deputy, the male deputy demanded that she remove her underpants and Ms. Rushing began to cry, whereupon she was permitted to keep this item of clothing.

The female deputy returned, again accompanied by a male, to escort Ms. Rushing to see a doctor. While she was being taken out of her cell, Ms. Rushing asked for a blanket and refused to accompany these two persons until one was provided. A jail psychologist told Ms. Rushing that she could have her clothes back. When she reentered her cell, however, the clothes had not been returned.

Ms. Rushing testified that after she had lowered her underpants to use the toilet the next morning, she noticed a custodian leaning on a broom outside her cell. The custodian stared and whistled at Ms. Rushing. Ms. Rushing stated that she then pulled up her underpants, brought her arms up to her chest and cried. Ms. Rushing testified that the custodian came by once or twice a day during her detention, leaned on his broom and stared at her.

On another occasion, two male deputies took Ms. Rushing to get epilepsy medication. She again requested, but was refused, a blanket, and was accompanied down the hall clad only in panties by the two male deputies.

Ms. Rushing further testified that a group of ten or twelve men dressed in suits paused in front of her cell, stared at her and talked among themselves, laughing. This group was accompanied by the jail psychologist who also stopped in front of Ms. Rushing’s cell, looked at her, and laughed.

Ms. Beverly Wagner occupied a cell two doors down from Ms. Rushing. Ms. Wagner, who was not classified as a suicide risk and, unlike Ms. Rushing, was not generally confined to her cell all day, testified that she and other female inmates in the ward regularly walked up and down the inmates’ "catwalk” directly in front of Ms. Rushing’s cell. She stated that there was nothing to obstruct the view into the cells from the inmates’ catwalk or from the deputies’ catwalk, which was adjacent to and separated by bars from the inmates’ catwalk. Ms. Wagner corroborated Ms. Rushing’s testimony regarding the daily presence of the custodian and the presence of a group of students in front of Ms. Rushing’s cell. Ms. Wagner testified that she attempted to provide covering for Ms. Rushing when males were present, lending Ms. Rushing her gown and holding a blanket in front of Ms. Rushing’s cell, but that she was confined to her cell by deputies as a result of these attempts.

Three months prior to Ms. Rushing’s detention, a three-judge panel of the Wayne Circuit Court issued an "Order Regarding Sheriff’s Suicide Prevention Plan.”¹_

The jail administration devised a set of procedures regarding the classification and treatment of potentially suicidal inmates (Reception-Diagnostic Center Procedure No. 4). Procedure No. 4 was signed by Frank Wilkerson, who was employed by the sheriff’s office as jail administrator and paid by Wayne County. Mr. Wilkerson, also a lawyer by training, testified that the duties of his office included the responsibility of the administration and operation of the jail, including the reception and maintenance of prisoners. He further stated that he set policies for the jail. According to Procedure No. 4, all women were placed in the women’s fourth-floor annex, whereas separate wards were available for potentially suicidal male inmates. Ms. Rushing was placed in a cell in ward 411, a long row of cells in which other, nonsuicidal female inmates were housed. Ms. Rushing’s cell had been "suicide proofed” in accordance with the court order. Mr. Wilkerson testified that horizontal bars had been removed from that cell in order to make it difficult, if not impossible, for inmates to tie sheeting to the bars of the cell as a way of committing suicide. According to Procedure No. 4, the jail administrator could order the return of clothing or other items to inmates who had been classified as potential suicide risks.

Although the court order vested the jail administrator with authority to overrule any decision relating to the classification of inmates according to suicidal tendency, and although the procedure authorized the administrator to return clothing to inmates who had been stripped, Mr. Wilkerson testified that decisions regarding the amount and nature of attention an inmate would receive were totally within the responsibility of the psychologist. Mr. Wilkerson testified that decisions would be left to doctors, psychiatrists, and the jail psychologist because he was reluctant to substitute his own opinions for those of people with specialized training.

With regard to jail policy regarding the exposure of naked inmates, Mr. Wilkerson testified that he could not recall ever having adopted a policy prohibiting such exposure. Mr. Wilkerson also stated that he did not know whether male janitors were present on the ward when naked women were housed there. He stated that if appropriate staff were not available, then it would be possible that a male custodian would be assigned to a female ward for a period of three or four days or even longer. He admitted that such staffing decisions were his responsibility, and also stated that it would not be an emergency for a male janitor to be sweeping a floor right in front of the cell where Ms. Rushing was housed. Finally, Mr. Wilkerson stated that there were tours of the jail on an ongoing basis. While it was not policy to allow students to walk by areas where inmates with psychological problems were housed, Mr. Wilkerson admitted that there could be an exception where medical students are concerned. Although tours had to be approved in advance, Mr. Wilkerson stated that he would not have known who would accompany tour groups on floors where psychologically troubled people were being held.

Jail psychologist Kim, to whom Mr. Wilkerson deferred with respect to the handling of inmates, testified that Ms. Rushing was left naked during the time she was detained at the jail as a safety precaution in order to facilitate observation by jail personnel. When asked whether something could have been provided to Ms. Rushing to cover her body when other people were around, Mr. Kim opined that he did not give her a sheet or a blanket because it would be very easy for her to hang herself. Mr. Kim stated that he had experienced thousands of people being stripped since he had worked at the county jail. Mr. Kim testified that because people think about the consequences of their own actions when they have been stripped, in most cases it is good for a person to be stripped and exposed.

Mr. Wilkerson testified that protective gowns were not given to stripped inmates because the gowns could be dampened, twisted and braided in such a way that an inmate could use the gown to hang themselves. Mr. Wilkerson stated that the gown would not be provided even for the brief periods of time during which a man was on the ward, because the gown could be used for suicidal purposes. Mr. Wilkerson conceded, however, that he did not believe that the gown could be soaked and braided and used by inmates to hang themselves if a matron were standing in front of the person’s cell while a man was in the area. In response to questioning regarding the possibility of using a gown for suicidal purposes in a cell from which all horizontal bars had been removed, Mr. Wilkerson responded that although he had no idea whether Ms. Rushing could have hanged herself on just the vertical bars, he was not going to take any chances. Mr. Wilkerson observed that there had been inmates who had been distraught enough to tie sheeting around their necks and lean forward from the vertical bars.

Ms. Rushing produced two experts at trial. Frank Donnelly, investigator for the Department of Corrections, was qualified as a correctional housing expert. He testified that ward 411, where Ms. Rushing was held, was unsuitable, given the facts related in the testimony of Ms. Rushing. In Mr. Donnelly’s opinion, there was no proper purpose in housing naked inmates where they could be exposed to other people. Mr. Donnelly stated that if persons of the opposite sex had reason to come on the ward where Ms. Rushing was held, then the stripped inmate should be offered a covering of some type, such as a gown, during the periods that other persons are in the area.

Jerome Gallagher, Ph.D., Director of Mental Health Services, Correction Assessment and Treatment Services at the Ingham County Jail, also testified on behalf of Ms. Rushing. Dr. Gallagher stated that naked inmates, unlike clothed inmates, should be housed in an isolated area outside of the mainstream of activity within the jail, and he expressed the opinion that Ms. Rushing was not housed in such an isolated area. Dr. Gallagher stated that the circumstances of Ms. Rushing’s detention were wrong. In his opinion there was no reason to allow a male deputy to strip a woman who was not acting violently.

Jail psychiatrist Dr. Milas Lebedevitch, who, along with Mr. Kim, was named individually in Ms. Rushing’s complaint, did not appear at trial.

B

At the close of proofs, the trial court entertained and granted the county’s motion for a directed verdict on the plaintiff’s § 1983 claim on the ground that "the County of Wayne has not specifically been involved in any violation of the civil rights of the Plaintiff in this matter.” Other claims involving individual defendants were sent to the jury. These claims included § 1983 claims against Mr. Kim and Dr. Lebedevitch alleging deliberate indifference to serious medical needs, a claim of negligence against Mr. Kim, and a claim of medical malpractice against Dr. Lebedevitch. The jury found against the plaintiff on all claims.

c

The Court of Appeals affirmed, stating, inter alia:

Const 1963, art 7, § 6 exempts the county from liability for the sheriff’s acts. . . . According to Wilkerson’s testimony, the sheriff had to approve jail policy. On this basis alone, we could find the county exempt from liability under § 1983. However, at one point, Wilkerson, a county employee, also testified that he also "set policies.” It is clear that defendant county cannot be held responsible under § 1983 under the doctrine of respondeat superior. Therefore, ... it is our opinion that any intrusions upon plaintiff’s privacy were not the result of a policy authorized or approved by defendant county. Furthermore, we find that the record does not reflect a "deliberate indifference” to plaintiff’s constitutional right to privacy on the part of defendant county. Therefore, we hold that the trial court did not err in directing a verdict in favor of defendant county on this portion of plaintiff’s § 1983 claim. [Rushing v Wayne Co, 138 Mich App 121, 143-145; 358 NW2d 904 (1984).]

The Court of Appeals also stated:

The plaintiff herein did not sue the sheriff, nor did she sue the jail administrator or any deputies. Therefore, even if Wilkerson should have promulgated a policy with respect to permitting males on the women’s floor, but did not, we believe that defendant county could not be held liable because of Wilkerson’s inaction since the failure to promulgate such a policy does not appear to us to rise to the level of deliberate indifference to the plaintiff’s right to privacy. [Id., p 144, n 6.]

D

We granted leave to appeal, 424 Mich 876 (1986), then vacated the earlier grant order and denied leave to appeal following oral argument. 430 Mich 867 (1988). Plaintiff’s motion for reconsideration of our denial was held in abeyance pending the decision by the United States Supreme Court in City of Canton v Harris, which has since been decided, 489 US 378; 109 S Ct 1197; 103 L Ed 2d 412 (1989). We then granted leave to appeal, limited to the issue whether the trial court properly granted the county’s motion for directed verdict. 433 Mich 917 (1989).

III. MUNICIPAL LIABILITY UNDER § 1983

Initially, we reject the county’s claim that it is shielded from § 1983 liability by Const 1963, art 7, § 6. The United States Supreme Court has repeatedly emphasized that state law immunities and defenses do not protect persons otherwise subject to § 1983 liability. See Martinez v California, 444 US 277, 284, n 8; 100 S Ct 553; 62 L Ed 2d 481 (1980) (" 'Conduct by persons acting under color of state law which is wrongful under 42 USC 1983 . . . cannot be immunized by state law. A construction of the federal statute which permitted a state immunity defense to have controlling effect would transmute a basic guarantee into an illusory promise . . . .’ ”); Felder v Casey, 487 US 131; 108 S Ct 2302; 101 L Ed 2d 123 (1988); Owen v City of Independence, 445 US 622, 647, n 30; 100 S Ct 1398; 63 L Ed 2d 673 (1980). Most recently, the United States Supreme Court in Howlett v Rose, 496 US —; 110 S Ct 2430; 110 L Ed 2d 332 (1990), built upon Martinez and Felder in rejecting a claim that state common-law immunity could shield a person from liability under § 1983. The unanimous Court again stressed that states are not "free to nullify for their own people the legislative decisions that Congress has made on behalf of all the People.” 110 L Ed 2d 358. For purposes of § 1983 liability, it is immaterial whether the state-law immunity derives from a statute as in Martinez, from the common law as in Howlett, or from a state constitutional provision as in this case. Thus, the sheriff may not maintain a state constitutional immunity defense to a claim brought under § 1983.

Additionally, we note that, as a matter of law, the policies of the sheriff and the jail administrator regarding the operation of the jail were attributable to the county. In Marchese v Lucas, 758 F2d 181, 189 (CA 6, 1985), cert den 480 US 916 (1987), the United States Court of Appeals for the Sixth Circuit rejected defendant Wayne County’s argument that the county cannot be held liable for policies of the sheriff under § 1983. The court concluded that "the relationship between the County and the Sheriff’s Department is so close as to make the County liable for the Sheriff’s failure to train and discipline his officers . . . .” See Carroll v Wilkerson, 782 F2d 44 (CA 6, 1986), cert den 479 US 923 (1986). Thus, the conclusions of the trial court and the Court of Appeals that the county could not be held liable for the sheriff’s acts were erroneous.

In City of Canton v Harris, supra, the United States Supreme Court considered when a municipality can be held liable under § 1983 for constitutional violations resulting from its failure to train municipal employees.

The Supreme Court stated:

[I]t may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need. In that event, the failure to provide proper training may fairly be said to represent a policy for which the city is responsible, and for which the city may be held liable if it actually causes injury.

In resolving the issue of a city’s liability, the focus must be on adequacy of the training program in relation to the tasks the particular officers must perform. [Id., p 390. Emphasis added.]

In general, the program must be adequate to enable employees "to respond properly to the usual and recurring situations with which they must deal.” Id., p 391. In addition, the deficiency in a municipality’s training program must actually cause and be closely related to the ultimate injury.

Predicting how a hypothetically well-trained officer would have acted under the circumstances may not be an easy task for the factfinder, particularly since matters of judgment may be involved .... But judge and jury, doing their respective jobs, will be adequate to the task. [Id.]

The Supreme Court gave a clear example of one appropriate application of the deliberate indifference standard.

[C]ity policymakers know to a moral certainty that their police officers will be required to arrest fleeing felons. The city has armed its officers with firearms, in part to allow them to accomplish this task. Thus, the need to train officers in the constitutional limitations on the use of deadly force . . . can be said to be "so obvious,” that failure to do so could properly be characterized as "deliberate indifference” to constitutional rights. [Id., p 390, n 10. Citation omitted.][²]

IV. APPLICATION OF THE HARRIS STANDARD

Viewing the facts developed at trial in a light most favorable to the nonmoving party,³ we conclude that a reasonable, properly instructed jury could have found in favor of Ms. Rushing. With respect to the failure of jail policymakers to adequately train jail personnel, the jury could have found not only that policymakers failed to instruct employees in the constitutional limitations on the stripping and exposure of inmates, but also to formulate any policy in this regard. We further believe that the jury could have viewed this failure as a manifestation of a deliberate indifference to the sort of deprivation allegedly sustained by Ms. Rushing and that the occurrence of such a deprivation was an obvious result of this failure coupled with the recently adopted suicide prevention plan.

Even before the United States Supreme Court’s landmark decision in Griswold v Connecticut, 381 US 479; 85 S Ct 1678; 14 L Ed 2d 510 (1965), it was held in the context of a § 1983 suit that a complaint alleging the unnecessary creation and distribution of nude photographs by police of a female citizen stated a claim that the woman’s privacy, a liberty interest guaranteed by the Due Process Clause of the Fourteenth Amendment, had been violated. York v Story, 324 F2d 450, 455 (CA 9, 1963), cert den 376 US 939 (1964). The court explained:

We cannot conceive of a more basic subject of privacy than the naked body. The desire to shield one’s unclothed figured [sic] from view of strangers, and particularly strangers of the opposite sex, is impelled by elementary self-respect and personal dignity. A search of one’s home has been established to be an invasion of one’s privacy against intrusion by the police, which, if "unreasonable,” is arbitrary and therefore banned under the Fourth Amendment. We do not see how it can be argued that the searching of one’s home deprives him of privacy, but the photographing of one’s nude body, and the distribution of such photographs to strangers does not.

In Lee v Downs, 641 F2d 1117, 1119-1120 (CA 4, 1981), the court upheld a jury verdict for a female inmate who brought a § 1983 claim alleging that she had been forced to disrobe in the presence of male guards. The court stated:

Persons in prison must surrender many rights of privacy which most people may claim in their private homes. Much of the life in prison is communal, and many prisoners must be housed in cells with openings through which they may be seen by guards. Most people, however, have a special sense of privacy in their genitals, and involuntary exposure of them in the presence of people of the other sex may be especially demeaning and humiliating. When not reasonably necessary, that sort of degradation is not to be visited upon those confined in our prisons.

Because of the conflict in the testimony, the jury was entitled to accept the plaintiff’s version that she expressed a willingness to remove her underclothing if the male guards would withdraw. Viewing the case in this light, as we must, it was wholly unnecessary for the male guards to remain in the room and to restrain the plaintiff while her underclothing was forcefully removed. If the plaintiff was uncooperative and abusive as defendants testified and if it was impractical to assemble enough female guards to restrain the big, strong plaintiff within a reasonable time, as they also testified, there would be a different case, but the jury seems clearly to have accepted the plaintiff’s version of the occurrence.

In Cumbey v Meachum, 684 F2d 712 (CA 10, 1982), the court reinstated a prisoner’s claim under § 1983 for invasion of privacy. The plaintiff alleged that female guards were assigned to posts where they could view him while he undressed, showered, and used the toilet. Id., p 713. Reviewing federal case law, the court observed that

[ojther courts have held that if guards regularly watch inmates of the opposite sex who are engaged in personal activities, such as undressing, using toilet facilities, or showering, the inmates’ constitutional rights to privacy are being violated. [Id., p 714. Citations omitted.]

The court concluded that

the plaintiff’s statement that the male inmates were subject to a "certain amount of viewing” by female guards does not necessarily fall short of a cognizable constitutional claim. The district court thus erred in dismissing the entire action as frivolous. [Id.]

In Fisher v Washington Metropolitan Area Transit Authority, 690 F2d 1133, 1142 (CA 4, 1982), the court held that a pretrial detainee had a “general right, constitutionally protected, not to be subjected by state action to involuntary exposure in a state of nakedness to members of the opposite sex unless that exposure was reasonably necessary in maintaining her otherwise legal detention.” See also Forts v Ward, 621 F2d 1210, 1217 (CA 2, 1980) (“The privacy interest entitled to protection concerns the involuntary viewing of private parts of the body by members of the opposite sex”); Hudson v Goodlander, 494 F Supp 890 (D Md, 1980) (the court found that the inmate’s rights to privacy were violated by the assignment of female guards to posts where they could view him while he was completely or entirely unclothed, despite the government’s argument that it was necessary to give the female guards such jobs in order to protect their right to equal employment opportunities); Bowling v Enomoto, 514 F Supp 201 (ND Cal, 1981).

Finally, in Kent v Johnson, 821 F2d 1220 (CA 6, 1987), the plaintiff brought suit under § 1983, alleging that the prison’s policy of allowing female guards to view him unclothed while showering and performing bodily functions violated his Fourth and Eighth Amendment rights. The court reversed the district court’s grant of summary judgment, holding that the complaint stated a constitutional claim in respect to both the Fourth and Eighth Amendments.

The defendant in the instant case does not dispute the existence of Ms. Rushing’s protected liberty interest in not being exposed to members of the opposite sex. Instead, counsel has argued on appeal that under Fisher, supra, Ms. Rushing’s right was not violated because it was reasonably necessary for her to be exposed in order for the jail to comply with the court-ordered suicide prevention plan.⁴

In Harris, the Supreme Court remanded the case to the Court of Appeals after concluding that the evidence in the record did not meet the deliberate-indifference standard set forth above. The plaintiff claimed that the city had inadequately trained its officers to deal with medical treatment of persons in police custody. The Supreme Court emphasized, however, that in Harris, the record made clear that the city did in fact train its officers and that the training included first-aid instruction. Thus, on remand the Court of Appeals was instructed to consider the city’s argument that it could not have been obvious to the city that the first-aid training was insufficient to administer its constitutional written policy. Id., p 390, n 11.

By analogy to Harris, if a city may be said to have a policy for which it may be held liable if it fails to train employees adequately, then the outright failure to formulate any policy (which might in turn require instruction to be properly implemented) in the face of an obvious need to do so may also suffice to create liability. Otherwise, a municipality could avoid liability by simply ignoring an obvious need. This, however, was clearly not the Court’s intention in Harris. The very notion of deliberate indifference contemplates a failure to act when the need to do so is obvious.

The jury could have concluded that the complete failure of policymakers to formulate a policy regarding the handling of stripped inmates manifested such a deliberate indifference to constitutional rights.⁵ The jury could well have concluded on the basis of the court-ordered suicide prevention plan, as well as psychologist Kim’s testimony, that policymakers knew "to a moral certainty” that many inmates would be stripped and detained unclothed in the jail. Harris, supra, p 390, n 10. Thus, unless precautionary measures were taken, the violation of inmates’ right not to be exposed unnecessarily to the view of other persons was certain to result. The evidence could have supported the conclusion that the failure to adequately instruct employees, and, indeed, to formulate any policy in the first instance, actually caused and was closely related to the deprivation of Ms. Rushing’s constitutional rights. The jury could also have concluded that the exposure of Ms. Rushing to male deputies, while Ms. Rushing was disrobing and being escorted naked in the jail, to the male custodian, and to the group of male visitors who peered into Ms. Rushing’s cell, was unnecessary and could have been prevented if, for example, the need to provide naked detainees with protective covering or to house them in an isolated area had merely been communicated to employees by jail policymakers.⁶_

C

Finally, the Court of Appeals, in reviewing the trial court’s disposition of the county’s motion for directed verdict, applied an improper standard of review. The Court of Appeals appears to have undertaken independent review of the record and to have concluded that the plaintiff’s proofs did not, in fact, demonstrate a deliberate indifference on the part of jail policymakers. The proper inquiry would have been whether a reasonable jury could have concluded that the deliberate indifference standard had been satisfied. DiFranco, supra, p 59. Applying this standard, we find that a reasonable jury, properly instructed, could have reached this conclusion.⁷

v

For the reasons set forth above, we find that the county’s motion for directed verdict was improperly granted. We therefore vacate the judgments of the Wayne Circuit Court and the Court of Appeals and remand this case to the Wayne Circuit Court for further proceedings consistent with this opinion on the issue of Wayne County’s liability for the violation of Ms. Rushing’s constitutional rights under § 1983. We do not retain jurisdiction.

Levin and Archer, JJ., concurred with Brickley, J._ Riley, C.J., took no part in the decision of this case.

1 With respect to the classification and treatment of potentially suicidal inmates at the jail, the order stated:

7. The court approves and orders implemented the following:

(a) That portion of the Sheriff’s plan of October 14, 1975, which provides for classification of all inmates as non-suicidal, potentially suicidal, and potentially suicidal, acute; and

(b) That portion of the Sheriff’s plan which provides for suicide classification recommendations to be made by psychiatric social workers and to be reviewed by a psychologist.

9. In the absence of a psychiatric social worker, a nurse may classify an inmate as non-suicidal, potentially suicidal, or potentially suicidal, acute, and may make an appropriate cell assignment to such an inmate. A classification by a nurse with respect to suicidal propensity shall be promptly reviewed by a psychologist.

10. If there is a reasonable doubt whether an inmate should be classified as non-suicidal or potentially suicidal, the inmate shall be classified as potentially suicidal. If there is a reasonable doubt whether an inmate should be classiñed as potentially suicidal or potentially suicidal, acute, the inmate shall be classified as potentially suicidal, acute.

11. The Sheriff shall, forthwith, with the assistance of the jail psychologist, jail psychiatrist, and psychiatric social workers, prepare written criteria for classifying inmates as non-suicidal, potentially suicidal, and potentially suicidal, acute.

15. When any member of the Sheriff’s staff observes an inmate who, in the judgment of the observer, clearly and obviously intends, then and there, to take his own life, the staff member shall forthwith take such steps as may appear to him in good faith to be reasonably necessary to prevent the suicide. This shall be done whether or not such inmate has been classified as potentially suicidal, or potentially suicidal, acute. Such steps shall include removal from such an inmate of all clothing, bedding, and other articles or implements which could be used for self-destruction; provided, however, that brief underwear bottoms shall not be removed except when they have been actually used in a suicide attempt or gesture. An article so removed should not be returned to the inmate unless and until the return is ordered by the Sheriff, Under-Sheriff, Jail Administrator, jail psychiatrist, jail psychologist, or jail psychiatric social worker. [Emphasis added.]

2 Under this standard, the Supreme Court observed that certain types of claims would not state a cause of action. These include:

1. That a particular employee was unsatisfactorily trained (because the individual employee’s shortcomings may have resulted from factors other than faulty training);

2. The negligent administration of an otherwise sound program;

3. The mere showing that an injury could have been avoided if a particular officer had been better trained (since this does not call into question the adequacy of the entire program);

4. An isolated mistake on the part of an adequately trained employee. See id., pp 390-391.

3 DiFranco v Pickard, 427 Mich 32, 58-59; 398 NW2d 896 (1986).

4 In addition, we observe that defense counsel, who represented the county as well as the individual defendants, did not object to the following instruction given with regard to the § 1983 claim against the individual defendants:

The Plaintiff in this case had a constitutional right of privacy. There is no more basic subject to privacy than the naked body. The desire to shield one’s unclothed figure from the view of strangers and particularly strangers of the opposite sex is impelled by elementary self-respect and personal dignity.

5 We find it unnecessary to determine whether and to what extent a pretrial detainee’s right to bodily privacy surpasses that of a convicted prisoner, since Ms. Rushing brought forth evidence which could establish a violation of the standard which has been applied to convicted inmates.

6 Counsel for the county urged at oral argument that no liability should flow from the county’s failure to foresee that Ms. Rushing was peculiarly sensitive to being viewed while unclothed. While such sensitivity may bear on the existence or extent of damages, it has nothing to do with the existence of the right not to be exposed, which is not disputed by the county, or the likelihood of the violation of such a right.

7 We have no reason to dispute the validity of the medical treatment analysis offered by Justice Boyle. In our judgment, however, the privacy theory is much better suited to the facts of this case.