NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a1183n.06 No. 11-1523 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

SUETTA S MI TH, as Personal Represe ntative of the Estate of B renda

Sue Smit h, Dec ease d, P laintif f-App ellee.

v. C OUNTY OF L ENAWEE; PAUL DYE, Sgt.; J

. CRAI G, Sgt.; WENDY VANDE R P OOL , Offic er; BEN NI CE BA KER; ADAM ONDROVI CK, Offic er; ERI C W ESTGATE, Defendan ts-Appellants. ) ) ) ) ) ) ) ) ) ) ) ) ) ON AP P EAL FROM THE UNI TED STATES DI STRI CT COURT FOR T HE EASTERN DI STRI CT OF MI CHI GAN O P I N I O N

BEFORE: BOGG S, NORRIS an d KETHLE DG E, Circuit Judges

. ALAN E. NORR IS, Circuit Judge. Plaintiff Suetta Smit h filed suit on behalf of her dece ased daug hter Br enda Smit h, who die d w h il e in c a r c e r a te d in th e L e n a

w e e County , Michig an jail. Smit h was taken into custody for a parole violation on Fr i d ay , Ap ri l 27, 2007. The following Monday morning she died of a seizur e b rought on by delirium tremens

. The two-count amende d complaint alleg es delibera te indiffer ence to her serious medical needs in vio l ati on of 42 U.S.C. § 1983 and g ross neg lige nce under Michig an law. The amende d complaint names the County , the sheriff , the off- site doctor in char g e of medical car e, and various jail employ ees as defe ndants. The district court denied summary judgme nt to all but two of the named defe ndants. Wit h the exception of the doc tor, they

appea l that denial. We aff irm in part and r ever se in part.No. 11-1523

Smith v. Lenawee Cnty., e t al. I. Smit h arr ived at the L enaw ee County J ail at approximately 5 p.m. on Fr iday , April 27, 2007. The day time shift supervisor, Serg eant Mary Neill, frisked her on arr ival. That evening Neill spoke with the j ail’s m edica l direc tor, Dr. J ef fr ey S t i ck n ey , by telephone. Neill told him, “She say s she drinks ever

y day , she’s an alcoholic. Um, she’s shaki n g rea lly bad.” He responded by say ing that “I ’ll order some stuff tomorrow.” At the time of her arr ival, Smit h, who was 37, was taking high blood pressure medication and Dilantin, an anti-epileptic d ru g to control seizures that had beg un some six months ear lier. Dr. Stickney presc ribed L ibrium afte r speaking with Neill. Smit h took her first dose at 9 : 3 5 that evening . Neill noted in a “pa ss-on” shee t that it was order ed for “alc ohol withdrawa l.” Serg eant Paul Dy e took over as shift commander at 7 p.m. on Fr iday and worke d until 7 the following morning

. He noted that Smit h was suffe ring from “DTs” in a pass-on sheet. That evening S m i th spoke to her mother, Suetta Smit h, and told her “I better g et some medical attention her e beca use I ’m g oing to g o throug h withdrawa ls. I ’m alre ady shaking like a lea f.” At 7 a.m. on Saturday morning , Serg eant Neill relieve d Dy e. Dy e returne d that evening for

t h e o v ernig ht shift. At 3:30 on Sunday morning , Dy e noted that Smit h was exhibi ting “par anoid behavior and irrational actions.” She was singing , pounding o n the walls, and talking t o rela tives who wer e not pre sent. As the day prog resse d, Adam Ondrovick, an intake office r, saw her speaking to people who did n o t ex i s t

. He was replace d at 7 p.m. by intake officer Wendy Vande rpool. I n her deposition,

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Smith v. Lenawee Cnty., e t al. Vande rpool rec alled that Smit h was “ag itated, talking about things in her life as if she was there and then she wa s back, y ou know, in the jail.” Serg eant Dy e wa s also on duty Sunday night a

nd stay ed until 3 a.m. on Monday morning

. He moved Smit h to a padded observa tion cell. He called Dr. Stickney at 9:26 p.m. and told him that she was “to the point of rea lly bad hallucinations rig ht now.” Dy e repor ted that Smit h had not eate n lunch, was “g etting kind of violent about wanting to g et out of her cell,” and was g ener ally ag itated. Stickney replied that “she’ s on g ood medicine” and that he would have the part-time jail nurse examine Smit h the following day

. Stickney also said, “Sitting in the jail w ill do her some g ood.” Wendy Vande rpool was on duty from 7 p . m . on Sunday until Smit h died at ten on the following morning . At her de position, Vanderpool testified that Smith was “swe aty from holding that wall up.” I n other words, Smit h was so delusional that she thought that the wall would fall down without her. Vande rpool aff irmed that Smit h was in a padded observa tion cell. By 5 a.m. on Monday , she noted that Smit h was “g etting more settled.” She was “on the floor play ing with puppy dog s and playing w ith bugs.” At 7 a.m. Serg eant Craig took over as shift commander

. After Smit h’s death Detec tive David Seeburg er prepar ed a death inv es t i gat i o n repor t, which included a ti meline of Smit h’s final hours based upon a videotape of the cell. Acc ording to t h i s t i m el i n e, at 8:46 a.m. Smit h was on her buttocks and knees with her uppe r torso re sting on the c ell’s benc h. A minute later, Craig enter ed the cell and set a cup of water near Smit h, which she did not touch. He looked at her but left the cell seconds late r. At that point, Smi th was “still moving her hands and f

eet a nd head oc casiona lly .”

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Smith v. Lenawee Cnty., e t al. Craig told Vande rpool to monitor Smit h ever y fiftee n minutes. Vande rpool was assisted by intake off icer Be nnice B aker

who started he r first day

of work a

t the jail that morning. Around 9 a.m., office r Thomas Moore arr ived to serve Smit h wit h her parole violation 1 notice. Howeve r, he was unable to do so beca use of Smit h’s condition. The videotape of Smit h’s

ce l l re v eals that she last moved at 9:19 a.m. At 9:50 a.m., corr ections office rs enter ed the cell, observe d that Smit h was not breathing, and summoned help. Parame dics arr ived five minutes later and tra nsported her

to the hospital where she wa s pronounce d dead at 11:22 a.m. As the district court rec og nized, the liability of eac h individual defe ndant must be analy zed separ ately

. Phillips v. Roane Cnty., Tenn. , 534 F.3d 531, 542 (6th Cir. 2008). Additional fac ts will be discussed in the context of those analy ses, including the roles play ed by defe ndants Eric Westga te and Adam Ondrovick whom we have no me ntioned in this brief fac tual rec itation. II. A. J urisdiction For purposes of appea l, the district court’s ruling s on both qualified immunit y under fede ral law and g overnme ntal immunit y under Michig an law constitute final appea lable order s. Smith , 600 F.3d at 689-90. We rec og nize that while the purely leg al issue of qualified immunit y is immediately appea lable under 28 U.S.C. § 1291, Mitchell v. Forsyth , 472 U.S. 51 1 , 5 3 0 (1985), we lack jurisdiction when the district court bases its denial of qualified im munity on “a ‘g enuine’ issue of

1. The district court g rante d qualified immunit y to Offic er Moore on the deliberate indif f e r e n c e c la im but d en i ed h i m summary judgme nt on the g ross neg lige nce claim. On appea l, we aff irmed the former judgme nt and reve rsed the denial of summary judgme nt on the g ross neg lige nce claim. Smith v. Cnty. of Lenawee , 600 F.3d 686 ( 6th Cir. 2010). - 4 -No. 11-1523

Smith v. Lenawee Cnty., e t al. fac t for trial.” Sabo v. City of Mentor , 657 F.3d 332, 335-36 (6 t h C i r. 2011) (quoting Johnson v. Jones , 515 U.S. 304, 319 (1995))

. I n its opinion, the district court observe d, “[t] he qualified immunit y issue in this case is fac t-bound.” Neve rtheless, “we have jurisdiction to consider an appea l from a denial of qualified immunit y if the defe ndant does not dispute the fac ts alleg ed by the plaintiff for purposes of the appea l.” Bishop v

. Hack el , 636 F.3d 757, 764 (6th Cir. 2011). Put differe ntly , defe ndant must conce de the most favor able view of the fac ts to plaintiff to g et past the jurisdictional hurdle of Johnson

. Id. at 764-65. We keep this prec ept i n mind when as s es s i n g whether the facts support a g rant of qua lified immunit y . B. Q ualified I mmunity Gover nment officia ls are immune from civil liability under 42 U.S.C. § 1983 wh en p e r f o r mi n g d iscretionar

y duties, provided “their conduct does not violate cle a r ly e s ta b li s h e d s ta

tu to r y

or constitutional rig hts of which a rea sonable person would have known.” Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982). We apply a two-prong ed test to deter mine whether qualified immunit y shields

a g overnme nt officia l from a § 1983 claim: (1) we inquire whether the fac ts, viewed in the light most favor able to the nonmoving party , “show the office r’s conduct violated a constitutional rig ht;” and (2) if so, then we deter

mine whether the co n stitut ional rig ht was clea rly established by asking whether “a rea sonable officia l would understand that what he is doing violates that rig ht.” Saucier

v. Katz , 533 U.S. 194, 201-02 (2001), abrogated in part by Pearson v. Callahan , 555 U.S. 223, 236 (2009). We revie w a district co u rt ’s denial of summary judgme nt based upon the defe nse of qualified immunity

de novo. Bishop , 636 F.3d a t 765.

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Smith v. Lenawee Cnty., e t al. C. Delibera te I ndiffer ence Whil e a claim of delibera te indiffer ence to the serious medical needs of an inmate falls under the protec tion of the Eig hth Amendment, that amendme nt does not apply to pretrial de tainees like plaintiff Smit h. I n t h ose case s, our analy sis is essentially the same but falls under the Four teenth Amendment. See W

atkins v. City of Battle Creek , 273 F.3d 682, 685-86 (6th Cir. 2001) (under the Four teenth Amendment’s Du e P roce ss Clause pretria l detainee s have a rig ht to adequa te medical
trea tment that is analog ous to the Eighth Ame ndment rig hts of prisoners)

. The c ontours of an de liberate indiffer ence claim ar e as f ollows: The Eig hth Amendment forbids prison officia ls from u n nece ssarily and wantonly inflicting pain” on an inmate by acting with deliberate indiffer ence toward the i nmate’s serious medical needs.

. . . Whether a convicted prisoner or a pretrial detainee , delibera te indiffer ence to one’s need for medica l att ention suffice s for a claim under 42 U.S.C. § 1983. Prison officia ls’ deliberate indiffer ence violates these rig hts [w] hen the indiffer ence is manifest ed b y . . . prison g uards in intentionally deny ing or

delay ing a cce ss to medical ca

re . . . f or a se rious medical ne ed. A constitutional claim for denial of medical car e has objective and subjective components. The objective component require s the exis tence of a sufficie ntly serious medical need.

. . . The inmate must show that he is incar ce rate d under conditions posing a substantial risk of serious har m. The subjective co m ponent require s an inmate to show that prison officia ls have a suff

iciently culpable sta te of mind in deny ing me dical ca re. This subje ctive component should be deter mined in light of the prison authorities’ curr ent attitudes and conduct. Deliber ate indiffer ence entails something more than mere neg lige nce, but can be satisfied by something less than acts or omissions for the very purpose of causing harm or w ith knowledg e that har m will result. [T] he official m ust both be awa re of fac ts from which the infere nce could be draw n that a subst an t i al risk of serious harm exis ts, and he must also draw the infere nce. Knowledg e of the asser ted serious needs or of circ umstances clear ly indicating the ex istence of such needs, is essential to a f

inding of deliberate indiffer ence .

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Smith v. Lenawee Cnty., e t al. Blackm ore v. Kalamazoo Cnty. , 390 F.3d 890, 895-96 (6th Cir. 2004) (citations omitted and punctuation alter ed). Ger mane to this appe al is the following observa tion: “Where a prisoner has rec eived some medical attention and the dispute is over the adequa cy of the trea tment, fede ral courts are g ener ally reluc tant to second g uess medical judgme nts and to constitutionaliz e claims which sound in state tort law.” W estlake v. Lucas , 537 F.2d 857, 860 n.5 (6th Cir

. 1 9 7 6); see Alspaugh v. McConnell , 643 F.3d 162, 169 (6th Cir. 2011) (citing W estlake with approva l). Fur thermore , “[i] f a prisoner is under the car e of medical experts

. . . , a non-medica l prison officia l will g ener ally be justified in believing that the prisoner is in capa ble hands.” Spruill v. Gillis , 372 F.3d 218, 236 (3d Cir. 2004). “[A]bs ent

a re ason to believe (or actual knowledge ) t hat prison doctors or their assistants are mistreating (or

n o t t re ating ) a prisoner, a non-medica l prison officia l

. . . will not be char g eable with t h e E i gh t h Amendment scie nter re quirement of de liberate indiffer ence .” Id. D. The Individual Defe ndants We now turn to the delibera te indiffer ence claim lodge d aga inst eac h of the individual defe ndants, rec og nizi ng that their entitlement to qualified immunit y rests on the role e ach of them play ed in the cir cumstance s surrounding Br enda Smith’s death. 1. Serg eant Dy e Dy e’s first encounte r with Smit h came at 7 p.m. on Fr iday , some two hours afte r she was taken into custody

. He worke d the overnig ht shift, leaving at 7 on Saturday morning

. He rec eived Serg eant Neill’s pass-on sheet, which noted that Smit h had “meds order ed for alcohol withdrawa l.” When finishing his shift, Dy e’s only notation with respec t to Sm ith was “DT’ s.”

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Smith v. Lenawee Cnty., e t al. Dy e also worke d the overnig ht shift b eginni ng Saturday evening and concluding Sunday morning . Acc ording to an incident re port he prepa red, that evening

he obser ved that Smith bega

n to “experienc e para

noid behavior and irrational actions,” which included singing and pounding the walls. Howeve r, he also noted that “she appea red to be in g ood spirits and functioning well phy sically .” Dy e was ag ain on duty from 7 p.m. Sunday evening until 3 a. m . o n M o n d ay morning

. Shortly befor e 9 p.m., he moved Smit h into a padded observa tion cell. Acc ording to his deposition testimony , he did so beca use h e wa s worrie d that Smit h might harm herse lf acc identally

. Soon there afte r, he spoke with Dr. Stickney

. Stickney testified that he told Dy e he would have the nurse look at Smit h the following day

. Dy e’s pass-on sheet for that evening states, “B renda Smit h is very i l l w/DT an[ d] w/d sy

mptoms. Dr. S tickney was called.” He also wrote an incident report which
states that Dr. Stickney told him that “it sounded like she wa s on g ood medication and to ke ep her safe and wa tch her .” Dy e points out that plaintiff’s expert, Dr. J oseph Goldenson, conce ded that he believed that Dy e adequately informed Dr. Stickney of Smit h’s deter iorating condition, that it was appropr iate for Dy e to follow Dr. Stickney ’s medical order s , an d that placing Smit h in a padded cell was a safe alterna tive for someone g oing thr oug h alcohol withdra wal. Dy e clocke d out at 3 a.m. on Monday morning and had no further contac t with Smit h befor e she died sever al hours later. He takes the view that his responsibility was to consult with the doctor

as nee ded, which he di d, follow that advice , and take measure s in response to any deter ioration of Smit h’s condition. - 8 -No. 11-1523

Smith v. Lenawee Cnty., e t al. The district court rea ched a differ ent conclusion. I t focuse d on the fac t that Dy e understood the seriousness of delirium tremens and that it was on his watch that “Smith’s DTs took a harsh turn for the worse.” I n the court’s view, consulting with Dr. Stickney was not Dy e’s only rec ourse. The J ail Policy states that “[i] f at any time during contac t with an Offe nder I nmate an employ ee identifies

an injury or need for medical attenti o n , t h e J ail Shift Commander will be notified and medical
trea tment will be provided. Emer g ency trea tment will be provided at Bixby Hospital.” The c ourt conclude d, “T h e ev idence supports a conclusion that Dy e violated Smit h’s clea rly established constitutional rig hts by disreg arding a known risk of serious harm to Smit h and taking no action to contac t emerg ency

medical se rvice s on April 29, 2007.” We r espec tfully disag ree . Even if we view the fac ts, as we must, in a light most fa vorable to pla intiff, Serg eant Dy e is entitled to summary judgme nt based upon qua lified immunit y . There is no question that plaintiff established the objective component of her deliberate indiffer ence claim, i.e. , that a serious medical need exis ted. Def endants, and Serg eant Dy e in particula r, rec og nized that Smit h was suffe ring from delirium tremens

. Howeve r, “[d] el i b er at e indiffer ence is not mere neg lige nce.” W

atkins , 273 F.3d at 686. To meet the subjective component of her claim , p l ai ntiff
must establish that Dy e had a sufficie ntly culpable state of mind in denying or delay ing medical car e. Blackm ore , 39 0 F. 3 d at 8 9 5 (quoting Brown v. Bargery , 207 F.3d 863, 867 (6th Cir. 2000)). I n retr o s p ec t , Dy e shoul d have summoned an ambulance. He did not exhibi t deliberate i ndiffer ence to Smit h’s plight, howeve r. He took her to an observa tion cell for her own protec tion and called Dr. Stickney who assure d him that she was on “g ood medicine” and advised that he would have the

nurse see her in the morning

. As the Third Circuit has said, “[A]bs ent a rea son to believe (or actua l - 9 -No. 11-1523

Smith v. Lenawee Cnty., e t al. knowledg e) that prison doctors or their assistants are mistreating (or not trea ting) a prisoner, a nonmedical prison officia l

. . . will not be char g eable with the Eig hth Amendment scienter require ment of delibera te indiffer ence .” Spruill, 372 F.3d at 236. As the Supreme Court has stated, “the officia l

m u s t both be awa

re of fac ts from which the infere nce could be draw n that a substant i al ri s k o f serious harm exis ts, and he must also draw the inference

. ” Farmer v. Brennan , 511 U.S. 825, 837 (1994) (empha sis added)

. Dr. Stickney assure d Serg eant Dy e that Smit h was on proper medication and that being held in the jail at that juncture would do her g ood. Und er t h e ci rcumstanc es, t h ere fore , it is understanda ble that Serg eant Dy e did not draw the infere nce that Smit h wa s at subs t an t ial risk of serious harm even though he rec og nized that she was suffe ring from delirium

tremens . For

these re asons, we r ever se the de nial of summary judgme nt as to this defenda nt. 2. Offic er Westg ate Def endant Eric Westga te had limit ed exposure to Smit h’s situation. On Sunday evening he

was wor king on the floor above befor e taking over as shift commander for Ser g eant Dy e at 3 a .m. on Monday

and he r emained on duty until 7 a.m. when Serg eant James Craig took over for him. Acc ording to Westga te’s deposition testimony , he rea d Serg eant Dy e’s incident repor t about Smit h that detailed his convers at i o n with Dr. Stickney

. He also prepa red an incident repor

t that noted Smit h’s failure to e at brea kfast or to dr ink a

ny thing that morning

. He obse rved tha t she had
not slept and “wa s y elling at her rela tives all night and morning .” The repor t rec ommended a followup by medical personne l. He testified that it was obvious t o h i m t hat she neede d to be seen by a doctor. He also conce ded that he could not rec all whether he told Serg eant Craig that Smit h neede d to be see n by

the nurse a

nd he did not call Dr . Stickney

.

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Smith v. Lenawee Cnty., e t al. The district court focuse d upon Westga te’s stat em en t t hat he rea liz ed Smit h neede d to be seen by a doctor and y et fa iled to contact one : Westga te appre ciated that DT could be a serious condit i o n an d could be lethal. I t was also within his undisputed authority to contac t emer g ency personne l.

. . . A jury could conc lude that Westgate’s dela y in providing me dical ca

re to Smith unde r the circ umstances c ould constitute deliberate indiffer ence . I n our view, Serg eant W es t gat e is entitled to qualified immunit y for essentially the same

rea sons that we rea ch that result with respe ct to Serg eant Dy e. First, he had o n l y a fo u r- h o ur exposure to Smit h. Second, he documented his concer n about her

not eating in an incident repor t that was placed in the nurse’s inbox , which S erg eant Cra ig, a nother shift super

visor, testified was the appropr iate routine. Third, he had rea d Dy e’s incident repor t conce rning his conver sation with Dr. Stickney and was there fore awa re that the doctor felt that Smit h’s continued prese nce in the jail

was appropr iate. I n short, like Dy e, his failure to obtain more timely medical intervention for Smit h is deeply reg rettable with the benef it of hindsight, but it does not amount to deliberate indiffer ence . 3. Serg eant James Craig Serg eant Craig took over as shift c ommander on Monday at 7 a.m., just a few hours befor e Smit h died. He revie wed the pass-on sheets and incident repor ts from the wee kend and spoke with Westga te. I n his deposition, he testi fied t h at h e reca lled being informed that Smit h was suffering from delirium tremens and that Dr . Stickney had pre scribed me dication. Craig asked intake office r Wendy Vande rpool keep an ey e on Smit h. As descr ibed ear lier, the cell videotape reve als that Smit h was on h er b u t tocks and knees with her torso thrown on her bunk when Craig briefly enter ed the cell and set a cup of water near her. Vande rpool turned on the

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Smith v. Lenawee Cnty., e t al. microphone to monitor the sound in Smit h’s cell and chec ked her visually ever y fiftee n minutes. She

was assisted by defe ndant Be nnice Ba ker who had just started her first day of work. Ba ker watche d Smit h for a

bout thirty

minutes. Sometime befor e 10 a.m., Craig asked Ba ker into his office for an orientation interview. Not long there afte r, Vande rpool called for help beca use Smit h had lost c onsciousness. Offic ers used a defibrillator to try

to revive Smith and ca lled EMS. I n Craig ’s view, he rea sonably responde d to Smith’s medical needs by order ing that she be monitored. He also knew that she was rec eiving medications for her medical problems and that she had b ee n resting more quietly over the past few hours than she had during the previous day

. He analog izes his situation to that descr ibed in Harrison v. Ash , 539 F.3 d 5 1 0 , 5 1 9 (6th Cir. 2008), wher e we held that jail of fice rs wer e not deliberately indiffer ent to the serious medical needs of an inmate with asthma beca

use they monitored and, belatedly , summoned medical aid. Despite these eff orts, the inmate died. The district cour

t disag ree d and off

ere d this analy sis: Serg ean t Cr aig ’s first and only persona l encounte r with the dece dent occur red around 8:46 a .m. After O ffice r Va nderpool told Craig that Smit h was holding onto her empty cup, Craig went into the cell, took her cup, filled it with water , and broug ht it back a minute later. He found Smit h “on her knees and may be on her elbows” on the floor by the bench- ty

pe eleva tion. Although Craig testified t h at he “aske d her how she was doing,” in response to which she “did say something t h at was inaudible,” the video rec ording of the cell sug g ests otherwise. Smit h is seen sprawle d out on the floor by the eleva ted bench and not rea cting to Craig ’s prese nce. Although the video does not contain a sound trac k, Craig is seen g etting in and out of Smit h’s cell both times very quickly , briskly putting the cup with water by Smit h’s body the second time, and not chec king Smit h’s vital signs or focusing his ey es on her. By the time of his visit, Smit h could only slightly twitch her hands. At that point, Smit h was a mer e half

an hour a way from her last movement. - 12 -No. 11-1523

Smith v. Lenawee Cnty., e t al. The c ourt also cites Cra ig’ s deposition testim ony that Smit h was swea ting profuse ly and had be en suffe ring delirium tremens throug hout the night. Be cause he was aw are of the seriousness of Smit h’s medical situation and failed to addre ss it (and instead met with Of fi ce r Ba ker) , the court denied summary judgme nt based upon qua lified immunit y . Serg eant Craig ’s entitlement to qualified immunit y prese nts a close question. L ike his fellow office rs, he wa s awa

re of Smit h’s situation but likewise knew that she wa s on medication and in a “saf e” environment. What distinguishes his situation from those of defe ndants Dy e and Westga te, howeve r, is that he encounte red Smit h in her last hou r, at a t i m e when she was unresponsive and

swea ting profuse ly

. He was o n n o t i ce t h at she was very ill and y et did nothing to make sure that Smit h had not taken a turn for the worse. Rather than asce rtain her condition, he left the cell in afte r only a minute to meet with his new intake office r. Viewing these fac ts in a light most fa vorable to plaintiff, we ag ree with the district court’s conclusion that Craig is not entitled to qualif ied immunit y . 4. Offic er B ennice Ba

ker Offic er Ba

ker arr iv ed for her very first day of work at 7 a.m. on Monday , April 30th, just three hours befor e EMS was summoned for Smit h. She was asked to help monitor Smit h by Offic er Vande rpool. She did so for approximately thirty minutes. The district court thought that, beca use Ba ker h ad b ee n t ra ined to distinguish the sy mptoms of both alcohol withdrawa l and delirium

tremens , she should have rec og nized the seriousness of Smit h’s condition and denied her qualified immunit y . I t noted, howeve r, that her s was a c lose ca se. We ag ree but believe that the balanc e tips in favor of qualified i m m u n i ty with respe ct to Ba ker. N otably , it was her f irst day on the j ob. She arr ived and was provided a task by two more - 13 -No. 11-1523

Smith v. Lenawee Cnty., e t al. experience d colleag

ues: Vande rpool and Craig

. She did what was asked of her. Admittedly , she failed to detec t the seriousness of Smit h’s co n d i tion, but she lacke d the backg round information about Smit h that Serg eant Craig and Offic er Vande rpool had. After thirty minutes of observa tion, she wa s summoned by

Serg eant Cra ig f

or an or ientation session. Even when we view the fa cts in

a light most favor able to plaintiff, we are unable to conclude that they establish the subjective component re quired to pre vail on a claim of deliberate indiffer ence . To do so would require us to conclude that Ba

ker actually inferr ed that a subst antial risk of serious harm ex isted. Farmer , 511 U.S. at 837. We decline to do that. I t was her first day on the job, she observe d Smit h for only thirty minutes, and did not have near ly as much knowledge ab o u t the medical situation as did her colleag ues. As we explained ear lier, “deliber ate indiffer ence ‘enta ils something more than mere neg lige nce.’ ” Blackm ore , 390 F.3d a t 895 (quoting Farmer , 511 U.S. at 835). 5. Offic er A dam Ondrovic k Offic er Ondrovick booked S m i t h wh en she arr ived at the jail on Fr iday

. He also saw her d u ring the day shifts on Saturday and S unday

. As with Ba ker, the district court recog nized h i s as

a “close case .” Howeve r, it pointed out that Ondrovick observe d Smit h talking to herse lf on Sunday and re cog nized that she was experienc ing some form of a lcohol withdrawa l. I n his deposition, Ondrovick stated that he did not know specific ally what delirium tremens

was but he rec og nized that Smit h was g oing throug h alcohol withdrawa l. He contends that he was attentive to Smit h’s needs by aler ting S er geant Neill (to whom the di strict court gra nted qualified immunit y ) to the fac t tha t Smith w as on seizure medication. Fur ther, he was not pr esent when her condition beg an to deter iorate seriously on Sunday evening

. I n short, his c ontention is that he was - 14 -No. 11-1523

Smith v. Lenawee Cnty., e t al. unable to draw the infere nce that Smit h was in a serious medical state and there fo re h e could not have a cted with deliber ate indiffe renc e towar ds her. We are of a like mind. Offic er Ondrovick was not prese nt when Smit h’s condition to took

a desper ate turn and, while he observe d her suffe ring from alcohol withdrawa l, he had rea son to assume that her condition was being tre ated. More importantly , he per formed his duties. That he did not take the extra step of bring ing the need for more ag g ressive intervention to his superiors, that failure at most – and we doubt e ven this – amounts only to ne g lige nce. A ccor dingly , we hold that Offic er O ndrovick is entitled to summary judgme nt based upon qua lified immunit y . 6. Offic er Wendy

Vande rpool I n deny ing her qualified immunit y , the district court obs er v ed that Offic er Vande rpool

m onitored Smit h for the longe st period: from 7 p.m. on Sunday until her death t h e fo l l o wi n g morning

. She also had worke d as an emer g ency medical technicia n for fourtee n y ear s. I t conclude d that she should have r ecog nized the peril Smit h was in:

Although V ander

pool denies that she had re alized that Smi th neede d to see a d o ct o r, she was “aw are of fac ts from which the infere nce could be draw n that a substantial risk of serious harm exis t[ ed],” Farmer , 511 U.S. at 837, and a jury could conclude that she in fac t drew that infere nce. For example, Vande rpool rea liz ed that Smit h neede d to have fl u i d i n t ake, and even rec ruited Offic er Ba ker to help her monitor Smit h

. Add t o this situation Vande rpool’s failure t o chec k on Smit h for a forty -minute period betwee n [parole office r ] Moo re ’s v i s it and the discovery that Smit h did not breathe –in violation of Policy 4.1.1 requiring phy sical monitoring of specia l needs inmates at least once ever y fiftee n minutes–and a jury could find that Vande rpool was de liberate ly indiffer ent to Smit h’s serious medic al condition.

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Smith v. Lenawee Cnty., e t al. Offic er Vande rpool contends that she monitored Smit h throug h the window of the cell door. Moreove r, she knew that Smit h was on medication presc ribed by Dr. Stickney and she saw no need to second g uess his judgme nt. Once ag ain, her case repr esents an extremely close call, but, as with Serg eant Craig , our duty
to construe the fac ts in a light most favor able to plaintiff compels us to aff irm the denial of qualified immunit y . Offic er V ander pool, like Serg eant Cra ig, w as pre sent when Smith died. Her exposure to Smit h’s condition, her experience , and her inadequa te monitoring of a detainee whom she knew to be in dire c ondition are e noug h to allow the claim of de liberate indiffer ence to go to a jury

. E. The County ’s L iability The district cour

t c oncluded that the re cord “ establishes a g enuine issue of materia l fac t as to L enaw ee County ’s liability for deliberate indiffer ence .” Whil e the County did not have a written policy that violated Smit h’s constitutional rig hts, she can preva il if she establishes that it had a clea r 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 g overnme nt body .” Id. (quoting Polk Cnty. v. Dodson , 454 U.S. 312, 326 (1981)). The district court looked to C i t y o f Ca n t on, Ohio v. Harris , 489 U.S. 378, 388-91 (1989), for the proposition that a municipality may be held liable for fa i l u re t o t rain its employ ees if that failure
amounts to delibera te indiffer ence to the rig hts of the persons with whom the municipality ’s employ ees come into contac t. Howeve r, that failure to train must also have actua lly cause d the employ ees’ indiffer ence to the plaintiff’s medical needs. See Blackm ore , 390 F.3d at 900 (finding

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Smith v. Lenawee Cnty., e t al. liability wher e the seriousness of prisoner’ s medical need was obvious and the county lacke d policy , prac tices, and a dequate training ). The district court considere d the employ ment contra ct betwee n the County and Dr. Stickney

. One of its p rovi sions was that he would collaborate with the County jail’s public health nurse to d ev el o p policies that would manag e “spec ific health problems,” implement standing order s for addre ssing them, and there by provide car e for “prisoner s with specific problems.” The court found that “such protocols wer e never develope d.” During his de position, Dr. Stickney was asked about his conver sations with jail personne l reg arding Br enda Smit h. He observe d, “I told y ou repe atedly that I ’ve g ot untrained peop l e g iving me information and I have to temper that very car efully and consider it in a very broad sense beca use I don’t have a nurse or doctor telling me that information, I ’ve g ot often people that just g radua ted from high school without any training in what they ’re try ing
to convey .” I n other words, the County allowed untrained office rs to make medical assessments and then conve y

them to an off- site phy sician. I n addition, the district court cited a repor t prepa red by J ail Commander Dennis Steenrod to Under sheriff Gail Dotson. This repor t, dated Ap ril 2, 2007, was reque sted by Sheriff L awr ence Richardson afte r the death of Yolanda Flor es , a d etainee who died in custody just months befor e Smit h. Steenr o d wa s asked to assess the adequa cy of the jail’s medical car e. His repor t was p repared just three wee ks befor e Smit h’s untimely death. Steenrod conclude d that “[w]e are exposi ng L enaw ee County , the Board of Commi ssioners, and the S heriff to a tremendous amount of liability if we do not make improvements to the inmate health car e sy stem.” Among other things, Steenrod rec ommended that the jail have a nurse on duty at least six teen hours a day , rathe r than the - 17 -No. 11-1523

Smith v. Lenawee Cnty., e t al. then-c urre nt aver ag e of 2.6, employ an on-site phy sician at least three hours a we ek, and provide trained medical personne l to make all medical d ec i s i o n s . Sadly , the Boa rd of Commi ssioners approve d these proposa ls on April 10 but they wer e not put into place until J une 1, 2007. Plaintiff’s expert, J eff Eiser, a crimi n al j u s t i ce consultant, produce d a repor t in which he echoe d Steenrod’s conclusio n t h at t he jail policies and procedure s wer e inadequate. Specifica lly , he stated that the administration a nd staff a cted with deliber ate indiffe renc e to the serious medical needs of Br enda Smit h by “fa iling to take corr ective action afte r it beca me obvious that her serious medical condition was deterior ating .” He also found that the “ policy and pra ctice of the L enaw ee County J ail and Sheriff L awr ence Richardson, J r. of using untrai n ed co rr ections office rs to make initial medical assessments and ref err als on inmates violates clea rly established corr ections industry standards a

nd prac tices.” Ba sed upon this information, as well as cer tain office rs’ admissi ons that they did not fully g rasp the differ ence betwee n alcohol withdra wal and its more se rious analog ue, delirium tremens , the district court conclude d that “[t] here is a g enuine issue of materia l fac t as to the deliberate indiffer ence of the c ounty .” We uphold the district court’s denial of summary judgme nt to the County

. I n our view, this is not a close case –at least for p u rp o s es o f summary judgme nt. As just explained, the rec ord is reple te with fac ts that raise a g enuine issue of materia l fac t with respe ct to the County ’s policies and prac tices in providing medical c are in its j ail.

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Smith v. Lenawee Cnty., e t al. F. Gr oss Neg lige nce Claim I n Michig an, employ ees of g overnme ntal ag encie s are immune from tort liability unless the employ ees’ conduct amounts to “g ross neg lige nce that is the proxi mate cause of t h e injury or damag e.” Mich. Comp. L aws § 691.1407(2)( c). The same statute define s “g ross neg lige nce” as “conduc t so rec kless as to demonstrate a substantial lack of conce rn for whether an injury results.” Mich. Comp. L aws § 691.1407(7) (a)

. I n our ea rlier opinion involving probation office r Moore, we e x plained the c ontours of the proxi mate ca

use ana ly sis in gross ne g lige nce c laims: The Michig an Supreme Court has stated that, for the purposes of Michig an’s g overnme nt al immunit y statute, proxi mate cause means “the one most immediate, eff icient, and direc t cause prec eding an i n j ury .” Robinson v. City of Detroit , 462 Mich. 439, 613 N.W.2d 307, 317 (2000). I n using this nar row de finition, the court noted that the Michig an L eg islature intentionally u s ed t h e phrase “ the proxi mate cause ” in the statute, rathe r than “ a proxi mate cause .” Id. The Robinson court overr uled prior Michig an co u rt prec edent to the extent that the prior decisions interp re t ed “the proxi mate cause ” to mean any thing other than the sole proxi mate cause . Id. at 318. The court wen t o n t o hold that police office rs wer e entitled to g overnme ntal immunit y in a case wher e a passeng er in a vehicle was killed afte r the vehicle’ s driver led police on a high- speed chase

. Id. at 313, 319. Acc ording to the Robinson court, no rea sonable jury could find that the office rs’ pursuit of the flee ing vehicle wa s t h e “one most immediate, eff icient, and direc t cause of the plaintiffs’ injuries” beca

use the actions of the driver who led police on the chase wer e the most immediate ca

use of the injurie s. Id. at 319. I n an u n published decision, a Michig an appellate court deter mined that an investigating office r’s failure to g ive an inmate his blood pressure medication was not the proxi mate cause of the inmate’s subsequent death. Hartzell v. City of W arren , No. 252458, 2005 WL 1106360 at *16 (Mich.Ct.App. May 10, 2005). The evidenc e in Hartzell indicated that the defe ndant-off icer wa s not the office r responsible for booking the dece dent nor was he the detention off icer responsible for the decedent during confine men t

. Id. at *15. Whil e the evidenc e indicated that the office r’s conduct could have been a cause of the dece dent’s death, the office r’s conduct was not the one most immediate cause of deat h b ec ause other evidenc e showed that - 19 -No. 11-1523

Smith v. Lenawee Cnty., e t al. substandard me dical ca

re on the part of the jail’s nurse a nd phy sician wa s the most immediate ca

use of the de ath. Id. at *16. On the other hand, this c ourt has deter mined that a nurse was not entitled to summary judgme nt on the issue of g overnme ntal immunit y under Michig an’s immunit y statute wher e the nurse provided inade q uate trea tment to an inmate suffe ring from heat exhaustion. Do minguez [v. Corr. Med. Servs.] , 555 F.3d 543, 546-48, 552-53 (6th Cir. 2009). The inmate in Dominguez had participa ted in an outdo o r weig ht-training session prior to becoming ill, and his untrea ted condition ultimately

led to quadripleg ia and impaire d communication abilities. Id. at 548. I n deny ing the nurse’ s motion for summa ry j u d gment, this court rea soned that a rea sonable jury could conclude that the nurse’ s actions wer e the proxi mate cause of the inmate’s injuries beca

use the inmate’s condition continued to deter iorate afte r the exercise se ssion and the inmate re peate dly soug ht car e fr om the nurse. Id. at 553. Smith , 600 F.3d at 691. The distri ct court in this case conclude d that littl e prac tical differ ence exis ted betwee n the fede ral delibera te indiffer en ce s tandar d and “substantial lack of conce rn for whether an injury results.” I t went on to conclude that “ther e is evidenc e that eac h of the defe ndants had the ab i l i t y t o i n t er v ene to help Br enda Smit h in the last hours of her life.” I n its view, that evidenc e cr eate d a jury

question which pre cluded summary judgme nt. Def endants a dmitted that Dr. S tickney ’s failure to order her tra nsfer red to a hospital was a proxi mate cause of her death. I f that is the case , defe ndants as k , h o w can they be the proxi mate

cause of Smit h’s injury ? They cite Hartzell , the unpublished Michig an appellate decision discussed in Smith, supra, in support. I n that case , the court assumed that a defenda nt office r i n the j ail had been g rossly neg lige nt. Hartzell , 2005 WL 1106360 at *16. Howeve r, it he ld that he was entitled to gove rnmental immunity for this rea son: Plaintiff arg ues that dece dent’s hy perte nsion and failure to rec eive Catapre s was the proxi mate cause of dece dent’s death, thus, Offic er Galasso as a person who failed to make sure he re ceive d this medication was the prox imate cause. Plaintiff’s claims ag ainst Offic er Galasso stem from his contac t with dece dent on J uly 25, 1998, befor e - 20 -No. 11-1523

Smith v. Lenawee Cnty., e t al. he was place d i n t h e ce ll, and then ag ain on J uly 27, 1998 when he was arr aig ned afte r which dece dent was t ra n sfer red to Macomb County J ail. Upon arr ival at Macomb County J ail, dece dent was examined by both Nurse Cisco and Dr

. Be d ia prior to when he was found unconscious in his cell on J uly 28, 1998. Clearly , the one most im mediate, e fficie nt, a nd direc t c ause of dec edent’ s death wa s not his contact wi t h Offic er Galasso and Offic er Galasso’ s failure to take action. Plai n t i ff ’s aff idavits of merit further support that Offic er Galasso was not the proxi mate cause of dece dent’s injuries as both Dr. Neil Fa rber and Nurse Gail Serrian indicate that the brea ch of the standard of car e by Dr. Be dia and Nurse Cisco was the proxi mate cause of dece dent’s death. Offic er Galas s o ’s conduct, ag ain assuming g ross neg lige nce, while a cause of dece dent’s death, it was but one cause , and was there fore , not “ the one most immediate, eff

icient, and dire ct ca

use” a s require d by Robinson

. Id. I n other words, when a par t y t ak es t h e position–i n this case throug h the aff idavits of its experts–that cer

tain defe ndants are the proxi mate cause of an injury , other defe ndants who have less culpability are off the hook beca use Robinson made clea r that there can only be “one most immediate, ef

ficient, a nd direc t cause prec eding an injury .” Robinson , 613 N.W.2d at 311. Def endants raise d t h i s arg ument below and the district court dismiss ed it, rea soning that “plaintiff is entitled to plead in the alternative. I f there is evidenc e that tends to show that more than

one defe ndant’s g ross neg lige nce may have been ‘the’ proxi mate cause of Smit h’s death, the plaintiff may prese nt that case to a jury .” I n our view, t h e d i s t ri ct court corr ectly conclude d that defe ndants’ contention that their admission that Dr. Stickney ’s actions wer e the proxi mate cause of Smit h’s death is not fata l to her g ross neg lige nce claim. Plaintiff can plead in the alternative. We also ag ree with the district court that the standards for making out a fede ral claim for deliberate indiffer ence and a Michig an state law claim for g ross neg lige nce a re substantially

simil ar. I f any

thing, the hur dle re quired in the fe dera l
context is more onerous beca use the defe ndant must have draw n the infere nce that a substantial risk

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Smith v. Lenawee Cnty., e t al. of serious harm exis ted. I f follows, then, that those defe ndants to whom summary judgme nt based upon qualified immunit y is denied–Dr

. Stickney , Serg eant Craig , and Of fi cer Vande rpool–are likewise not entitled to summary judgme nt with respe ct to the g ross neg lige nce claim. I t is true that only one of the can be the proxi mate ca use. The ide ntity

of that par

ty is up to a jury

to decide. III. The judgme nt is aff

irm ed in part and reve rsed in part

. The cause is rem anded for further proce eding s consistent with this opi nion.

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Smith v. Lenawee Cnty., e t al. Kethledg e, J ., concur

ring in part and dissenting in part. I ag ree with the majority on all but

one issue. Specifica lly , I would aff irm the district court’s denial of qualified immunit y to Westga te. Unlike Dy e—who I

think presents a c lose case , but w ho at least showed conce rn by putting Smit h in a padded cell and calling Dr. Stickney —Westga te basica lly took no action at all during his fourhour shift on the night befor e Smit h died. I also think he had am p l e t i m e t o observe Smit h’s condition, and that Stickney ’s “advic e” to Dy e—which was dubious to beg in with—was becoming pretty stale by the end of Westga te’s shift. Thus, I ag ree with the district c ourt that “[a] jury could conclude that Westga te’s dela y in providing me dical care to Smit h under the circ umstances could constitute delibera te indiffer ence .” On that issue, then, I

respe ctfully

dissent. Otherwise I

concur in the majority ’s opinion.

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