UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DEBORAH HAGERMAN,

Plaintiff, CASE NO. 15-10952

HON. DENISE PAGE HOOD

v.

MACOMB, COUNTY OF,

ANTHONY M. WICKERSHAM,

AMY FRANKS,

BRIAN PINGILLEY,

STEVEN MARSCHKE,

KEITH PETHKE,

Defendants.

 /

ORDER DENYING DEFENDANTS’ 

MOTION FOR RECONSIDERATION [#50]

I. BACKGROUND

This matter is now before the Court on individual Defendants Deputies

Steven Marschke (“Marschke”), Keith Pethke (“Pethke”), Brian Pingilley

(“Pingilley”), and Amy Franks’ (“Franks”) Motion for Reconsideration filed on

April 12, 2017. (Doc # 50) On March 29, 2017, the Court entered an Order

Granting in Part and Denying in Part Defendants’ Motion for Summary Judgment

and/or Dismissal. (Doc # 48) For the reasons set forth below, the Court denies

Defendants’ Motion for Reconsideration.

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II. ANALYSIS

A. Standard of Review

The Local Rules of the Eastern District of Michigan provide that any motion

for reconsideration must be filed within 14 days after entry of the judgment or

order. E.D. Mich. LR 7.1(h)(1). No response to the motion and no oral argument

thereon are permitted unless the Court orders otherwise. Id. at 7.1(h)(2). 

Defendants’ Motion is timely filed.

Local Rule 7.1 further states:

(3) Grounds. Generally, 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 and other persons entitled to be heard on the motion have been

misled but also show that correcting the defect will result in a

different disposition of the case.

Id. at 7.1(h)(3). “A ‘palpable defect’ is a defect which is obvious, clear,

unmistakable, manifest, or plain.” Fleck v. Titan Tire Corp., 177 F. Supp. 2d 605,

624 (E.D. Mich. 2001). A motion for reconsideration is not a vehicle to re-hash

old arguments, or to proffer new arguments or evidence that the movant could have

brought up earlier. Sault Ste. Marie Tribe v. Engler, 146 F.3d 367, 374 (6th Cir.

1998) (motions under Fed. R. Civ. P. 59(e) “are aimed at re consideration, not

initial consideration”) (citing FDIC v. World Universal Inc., 978 F.2d 10, 16 (1st

Cir. 1992)).

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B. Palpable Defect 

1. Deliberate Indifference Analysis

Defendants argue that the Court made a palpable error in its March 29, 2017

Order because the Court failed to apply both the objective and subjective prongs of

the deliberate indifference analysis to each individual Defendant. Defendants

again argue that, at worst, the conduct of each individual Defendant was negligent. 

The Court finds that Defendants have not met their burden on a motion for

reconsideration, as they have not demonstrated a palpable defect by which the

Court has been misled. The Court did apply both the objective and subjective

prongs of the deliberate indifference analysis to each Defendant. (Doc # 48, Pg ID

1032-44) 

Through the instant Motion, Defendants merely re-hash the same arguments

they have made before. Defendants argue again that Marschke and Pethke could

not have formulated the subjective deliberate indifference to a substantial risk of

harm with respect to Ryan Hagerman because they had nothing to do with Mark

Cowans’ (“Cowans”) placement in the high-observation suicide-watch cell with

Ryan Hagerman. Defendants argue again that Marschke and Pethke had no

opportunity or means to prevent the harm that occurred because any housing

decisions they made or could have made with respect to Cowans would have been

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“vetoed” once the mental health unit assessed Cowans and made a housing

determination. Defendants argue again that Pingilley and Franks had no reason to

know of Cowans’ propensities and were not given a reasonable opportunity to act

or react in order to be found to have consciously disregarded a substantial risk of

serious harm. A motion for reconsideration is not a vehicle to re-hash old

arguments. Sault Ste. Marie Tribe, 146 F.3d at 374. The Court already considered

and rejected these arguments and concluded that, viewing the facts in the light most

favorable to Plaintiff Deborah Hagerman (“Hagerman”), a reasonable juror could

conclude that Marschke, Pethke, Pingilley, and Franks were deliberately indifferent

to the safety of Ryan Hagerman. 

2. Qualified Immunity and Clearly Established Right

Defendants argue that the Court made a palpable error in its March 29, 2017

Order because the Court’s identification of the clearly established right was overly

broad.

The Court finds that Defendants have not met their burden on a motion for

reconsideration, as they have not demonstrated a palpable defect by which the

Court has been misled. Defendants argue again that there is no right for a detainee

to be housed alone or isolated and continuously monitored. The Court already

expressly considered and expressly rejected this argument. (Doc # 48, Pg ID 1030-

31) The Court concluded that Hagerman asserted a deliberate indifference claim

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regarding an inmate’s right to be free from violence at the hands of his cellmate;

that Ryan Hagerman was not housed alone and was not continuously monitored are

two of the ways in which his right to be free from violence at the hands of his

cellmate was allegedly violated. 

3. Proximate Causation

Defendants argue that the Court made a palpable error in its March 29, 2017

Order because the Court overlooked the causation requirement in Section 1983

actions.

The Court finds that Defendants have not met their burden on a motion for

reconsideration, as they have not demonstrated a palpable defect by which the

Court has been misled. Again, Defendants merely re-hash the same arguments

they have made before. Defendants fail to point to any fact that the Court did not

already expressly consider it its May 29, 2017 Order. Defendants concede that the

Court did acknowledge that Cowans was assessed by the mental health unit before

being placed in the cell with Ryan Hagerman, and that Cowans and Ryan

Hagerman remained together in the cell for 14 hours without incident before

Cowans attacked and killed Ryan Hagerman. Nevertheless, the Court rejected

Defendants’ proximate causation arguments and found that Defendants had an

opportunity to know of and disregard the risk of harm to Ryan Hagerman, a

specifically identifiable potential victim. The Court concluded that, viewing the

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facts in the light most favorable to Hagerman, a reasonable juror could conclude

that the individual Defendants did have knowledge of a specific risk of harm to an

identifiable individual, and that their conduct rose to the level of deliberate

indifference and not just mere negligence.

III. CONCLUSION

For the reasons set forth above,

IT IS HEREBY ORDERED that Defendants’ Motion for Reconsideration

(Doc # 50) is DENIED.

S/Denise Page Hood 

Denise Page Hood

Chief Judge, United States District Court

Dated: June 21, 2017

I hereby certify that a copy of the foregoing document was served upon counsel of

record on June 21, 2017, by electronic and/or ordinary mail.

S/LaShawn R. Saulsberry 

Case Manager

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