UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

THE ESTATE OF

RICHARD DONALD PFISTER, JR.,

Plaintiff,

v. Case No. 09-10981

Honorable Patrick J. Duggan

COUNTY OF MACOMB, MARK HACKEL,

CORRECTIONAL MEDICAL SERVICES,

BEVERLY PUCHOVEN, JAMES HARRIS,

CHRISTOPHER COSTANZA, DAVID

WHITE, MARIA BALSAMA, SCOTT JONES,

SGT. PATRICK JOHNSON, NURSE

ANGELA VETTRAINO, NURSE KATHY

HAWKINS,

Defendants.

____________________________/

OPINION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

ON BEHALF OF DEFENDANTS MACOMB COUNTY, SHERIFF MARK

HACKEL, BEVERLY PUCHOVEN, JAMES HARRIS, CHRISTOPHER

COSTANZA, DAVID WHITE, MARIA BALSAMA, SCOTT JONES, AND SGT.

PATRICK JOHNSON

At a session of said Court, held in the U.S.

District Courthouse, Eastern District

of Michigan, on October 30, 2009.

PRESENT: THE HONORABLE PATRICK J. DUGGAN

 U.S. DISTRICT COURT JUDGE

This is a wrongful death action arising out of the death of Richard Donald Pfister,

Jr. (“Mr. Pfister”) during his incarceration at the Macomb County Jail. Mr. Pfister’s

estate has brought a claim pursuant to 42 U.S.C. § 1983 alleging that the individual

2:09-cv-10981-PJD-PJK Doc # 30 Filed 10/30/09 Pg 1 of 12 Pg ID 531
1

In the Complaint, Plaintiff alleges a violation of the Fourth and Fourteenth

Amendments; however in its response brief, Plaintiff acknowledges that its claim in fact

arises under the Eighth Amendment because Mr. Pfister was a prisoner and not a pretrial

detainee. (Pl.’s Resp. at 4 n.1.)

2

Defendants were deliberately indifferent to Mr. Pfister’s medical needs in violation of the

Eighth Amendment (Count I).1

 In Count II of the Complaint, Plaintiff alleges that

Macomb County is liable under § 1983 because it maintained a policy or custom that

caused the Eighth Amendment violation. Presently before the Court is a motion for

summary judgment pursuant to Federal Rule of Civil Procedure 56(c) brought on behalf

of Defendants Macomb County, Sheriff Mark Hackel, Beverly Puchoven, James Harris,

Christopher Costanza, David White, Maria Balsama, Scott Jones, and Sergeant Patrick

Johnson (collectively “County Defendants”). The motion has been fully briefed and the

Court held a motion hearing on October 27, 2009.

I. Plaintiff’s Claim that the County Defendants’ Motion is Premature

In response to the County Defendants’ motion, Plaintiff invokes Federal Rule of

Civil Procedure 56(f) and argues that the motion is premature because discovery does not

close according to the Court’s scheduling order in this case until October 31, 2009, and

depositions of the remaining Defendants were scheduled for September 25, 2009 (four

days after Plaintiff filed its response). Rule 56(f) states:

If a party opposing the motion shows by affidavit that, for

specified reasons, it cannot present facts essential to justify its

opposition, the court may:

(1) deny the motion;

2:09-cv-10981-PJD-PJK Doc # 30 Filed 10/30/09 Pg 2 of 12 Pg ID 532
3

(2) order a continuance to enable affidavits to be obtained,

depositions to be taken or other discovery to be undertaken; or

(3) issue any other just order.

Fed. R. Civ. P. 56(f). To obtain relief under this provision, the party must describe with

“some precision the materials he hopes to obtain with further discovery, and exactly how

he expects those materials would help him in opposing summary judgment.” Everson v.

Leis, 556 F.3d 484, 493 (6th Cir. 2009) (quotation marks and citations omitted). “‘Bare

allegations or vague assertions of the need for discovery are not enough’ under Rule

56(f).” Id. (quoting Summers v. Leis, 368 F.3d 881, 887 (6th Cir. 2004)).

Plaintiff has not provided an affidavit to support its request for relief pursuant to

Rule 56(f). Even assuming that the assertions in Plaintiff’s unsworn response brief would

satisfy the rule’s requirement that the pleading “shows by affidavit” that Plaintiff needs

further discovery to respond to the County Defendants’ motion, the Court finds that

Plaintiff fails to identify with any specificity how the discovery still to be conducted is

essential to its opposition. Plaintiff refers specifically to the depositions to be taken of the

medical care providers who rendered care to Plaintiff during his incarceration; however,

Plaintiff does not indicate or even speculate as to what those individuals might say that

would be relevant to the issues raised in the County Defendants’ summary judgment

motion.

In any event, by the time this motion was heard, Plaintiff had the opportunity to

depose the individuals who provided medical care to Mr. Pfister during his incarceration. 

2:09-cv-10981-PJD-PJK Doc # 30 Filed 10/30/09 Pg 3 of 12 Pg ID 533
2

At the motion hearing, Plaintiff’s counsel sought permission to file an affidavit on

behalf of an expert in support of his opposition to the County Defendant’s motion. The

Court denied counsel’s request because counsel does not have an expert at this time and

Plaintiff did not identify an expert on the witness lists that were filed on April 22 and 30,

2009. (Docs. 9, 11.) Pursuant to this Court’s May 19, 2009 Scheduling Order, all

witnesses to be called at trial were to be listed by August 31, 2009. (Doc. 16.)

4

At the hearing, Plaintiff presented no additional evidence uncovered in the depositions to

support the denial of the County Defendants’ summary judgment motion.2

II. Summary Judgment Standard

Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment is

appropriate only when there is no genuine issue as to any material fact and the moving

party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). The central

inquiry is “whether the evidence presents a sufficient disagreement to require submission

to a jury or whether it is so one-sided that one party must prevail as a matter of law.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512 (1986). 

After adequate time for discovery and upon motion, Rule 56(c) mandates summary

judgment against a party who fails to establish the existence of an element essential to

that party's case and on which that party bears the burden of proof at trial. See Celotex

Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986).

The movant has an initial burden of showing “the absence of a genuine issue of

material fact.” Id. at 323. Once the movant meets this burden, the non-movant must

come forward with specific facts showing that there is a genuine issue for trial. See

Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348,

2:09-cv-10981-PJD-PJK Doc # 30 Filed 10/30/09 Pg 4 of 12 Pg ID 534
5

1356 (1986). To demonstrate a genuine issue, the non-movant must present sufficient

evidence upon which a jury could reasonably find for the non-movant; a “scintilla of

evidence” is insufficient. See Liberty Lobby, 477 U.S. at 252, 106 S. Ct. at 2512. The

court must accept as true the non-movant’s evidence and draw “all justifiable inferences”

in the non-movant’s favor. See id. at 255.

III. Factual and Procedural Background

Mr. Pfister entered the Macomb County Jail on September 8, 2005, after pleading

guilty to larceny in a building and being a habitual offender in the Circuit Court for

Macomb County, Michigan. At sentencing, it was noted that Mr. Pfister suffered from a

history of depression and bipolar disorder and that he had undergone back surgery in

2004.

Correctional Medical Services (“CMS”) screened Mr. Pfister on September 9,

2005. Mr. Pfister reported that he had undergone back surgery in September 2004. He

did not report any other physical problems or conditions, such as a heart condition. 

(Defs.’ Mot. Ex. B.) He denied using drugs or alcohol. (Id.) Mr. Pfister did report

psychiatric hospitalization three months earlier for depression and a history of outpatient

mental health treatment. (Id.) Mr. Pfister was approved for placement in the general

population with a routine mental health referral to be completed within 48 hours. (Id.)

Mr. Pfister’s mental health screening was completed on September 10, 2005. 

(Pl.’s Resp. Ex. A.) CMS recommended at this time that Mr. Pfister be placed in the

Mental Health Unit, in a bottom bed only. (Id.) The Mental Health Unit was full,

2:09-cv-10981-PJD-PJK Doc # 30 Filed 10/30/09 Pg 5 of 12 Pg ID 535
6

however, and therefore Mr. Pfister was placed in the C-Block in Booking, an area

commonly used for mental health inmates when a space in the Mental Health Unit is

unavailable.

On September 10, 2005, at approximately 10:00 p.m., a nurse was called to see

Mr. Pfister who was vomiting and complaining of an upset stomach. (Defs.’ Mot. Ex. E.) 

The nurse took Mr. Pfister’s vitals and noted no signs of drug or alcohol withdrawal. 

(Id.) Mr. Pfister denied doing street drugs and indicated that he had not consumed

alcohol since Vietnam. (Id.) Mr. Pfister informed the nurse that he did not want anything

except “to be left alone.” (Id.)

On September 11, 2005, at approximately 5:30 p.m., Defendant Corrections

Deputy David White (“Deputy White”) observed Mr. Pfister lying on the floor in the day

room. (Pl.’s Resp. Ex. C.) Deputy White asked Mr. Pfister if he was okay and Mr.

Pfister replied that his back was hurting. (Pl.’s Resp. Ex. D at 10.) Deputy White asked

Mr. Pfister if he needed help, as it appeared that Mr. Pfister was struggling to get up from

the floor. (Id.) Mr. Pfister declined, got up, and walked to his cell. (Id. at 10-11.) 

According to Deputy White, aside from saying that his back hurt, Mr. Pfister did not

appear to be in any distress. (Id. at 11.)

About an hour later, at 6:40 p.m., Defendant Corrections Deputy Beverly

Puchovan (“Deputy Puchovan”) was alerted to a problem in the C-Unit by the inmates in

the unit. (Defs.’ Mot. Ex. G at 9-10.) Deputy Puchovan and Deputy White ran into the

unit where they observed Mr. Pfister laying on the ground of his cell with his head at the

2:09-cv-10981-PJD-PJK Doc # 30 Filed 10/30/09 Pg 6 of 12 Pg ID 536
7

door and what appeared to be blood underneath his head. (Id. at 11-12; Ex. D at 12.) 

They called for a nurse and Defendant Nurse Kathy Hawkins– who was in the unit

screening inmates– responded immediately. (Defs.’ Mot. Ex. D at 12-13.) Nurse

Hawkins entered the cell and began performing CPR on Mr. Pfister. (Defs.’ Mot. Ex. G

at 11.) More nurses arrived and additional aid, including a shock with an automatic

external defibrillator (“AED”) was administered. At 6:50 p.m., Sergeant Patrick Johnson

called for an ambulance and the Mt. Clemens Fire and Rescue. (Defs.’ Ex. D at 12-13,

Ex. H.) An ambulance arrived at the jail at 6:53 p.m. (Id. Ex. H.)

At 6:56 p.m., according to the EMS report, vital signs for Mr. Pfister were absent. 

(Id.) At 7:15 p.m., Mr. Pfister was transported to the hospital. (Id.) When he arrived at

7:20 p.m., vital signs still were absent. (Id.) A subsequent autopsy by the Macomb

County Chief Medical Examiner indicated that Mr. Pfister died On September 11, 2005,

of arteriosclerotic and hypertensive heart disease. (Defs.’ Mot. Ex. I.) The autopsy also

revealed a laceration on Mr. Pfister’s head that did not contribute to his death but was

consistent with a terminal collapse. (Id.)

On March 2, 2009, Plaintiff filed its Complaint against Defendants in the Circuit

Court for Macomb County, Michigan. Defendants removed Plaintiff’s action to federal

court pursuant to 28 U.S.C. § 1331 on March 17, 2009. The County Defendants filed the

pending motion for summary judgment on September 1, 2009.

IV. Applicable Law and Analysis

As indicated earlier, Plaintiff asserts two claims in its Complaint: (I) deliberate

2:09-cv-10981-PJD-PJK Doc # 30 Filed 10/30/09 Pg 7 of 12 Pg ID 537
8

indifference to Mr. Pfister’s medical needs by the individual Defendants in violation of

the Eighth and Fourteen Amendments pursuant to 42 U.S.C. § 1983; and (II) municipal

liability under § 1983 based on a custom or policy that led to the violation of Mr. Pfister’s

constitutional rights.

The Eighth Amendment prohibits cruel and unusual punishment. U.S. CONST.

amend. VIII. In the context of prisoners’ medical needs, courts find a violation of the

Eighth Amendment where prison officials are “so deliberately indifferent to the serious

medical needs of prisoners as to unnecessarily and wantonly inflict pain.” Horn v.

Madison County Fiscal Court, 22 F.3d 653, 660 (6th Cir. 1994). An Eighth Amendment

deliberate indifference claim consists of objective and subjective components.

The objective component requires a showing that the alleged deprivation was

“sufficiently serious.” Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 1977

(1994). Stated differently, the prisoner’s medical needs must be or have been

“sufficiently serious.” Hunt v. Reynolds, 974 F.2d 734, 735 (6th Cir. 1992). The

subjective component requires the plaintiff to show that the defendants had “a sufficiently

culpable state of mind in denying [the inmate] medical care.” Blackmore v. Kalamazoo

County, 390 F.3d 890, 895 (6th Cir. 2004) (citing Farmer, 511 U.S. at 834, 114 S. Ct. at

1977). “[A] plaintiff must establish that ‘the official knows of and disregards an

excessive risk to inmate health or safety,’ which is to say ‘the official must both be aware

of facts from which the inference could be drawn that a substantial risk of serious harm

exists, and he must also draw the inference.’” Clark-Murphy v. Foreback, 439 F.3d 280,

2:09-cv-10981-PJD-PJK Doc # 30 Filed 10/30/09 Pg 8 of 12 Pg ID 538
9

286 (6th Cir. 2006) (quoting Farmer, 511 U.S. at 837, 114 S. Ct. at 1979).

The County Defendants argue in their motion for summary judgment that Plaintiff

cannot satisfy the subjective component of its Eighth Amendment claim. This Court

agrees. Plaintiff presents no evidence to suggest that any of the County Defendants were

aware of and ignored Mr. Pfister’s heart condition or risk of failure. At intake on

September 9, 2005– three days before his death– it was conveyed that Mr. Pfister had

undergone back surgery in September 2004. No other medical problems or conditions

were reported.

Mr. Pfister was vomiting and complaining of an upset stomach at 10:00 p.m. on

September 10. Plaintiff states in its response brief that Mr. Pfister “was very ill” on that

date (Pl.’s Resp. at 1) and was “in significant distress for over a day before his death (id.

at 2); however, there is no evidence in the record supporting these statements. (See id.

Ex. B.) In particular, there is no evidence that Mr. Pfister continued to experience an

upset stomach and vomiting or displayed any other symptoms requiring medical attention

after he was seen by a nurse. Moreover, Plaintiff presents no evidence to suggest that the

conditions Mr. Pfister exhibited should have alerted the County Defendants to his risk of

heart failure.

The next day, Mr. Pfister was found lying on the floor of the day room and he

complained of back pain. But nothing in the record supports Plaintiff’s statement in its

brief that Mr. Pfister “appeared in distress.” (Pl.’s Resp. at 1.) Mr. Pfister exhibited some

difficulty standing up from the floor– causing Deputy White to ask if he needed help– but

2:09-cv-10981-PJD-PJK Doc # 30 Filed 10/30/09 Pg 9 of 12 Pg ID 539
10

Mr. Pfister said he “was fine,” declined Deputy White’s help, stood up, and walked back

to his cell without assistance. (Pl.’s Resp. Ex. D at 10-11.) Deputy White testified that,

except for his complaints of back pain, Mr. Pfister did not show any signs of distress. 

Particularly in light of Mr. Pfister’s history of back surgery, there is nothing about this

incident that should have alerted the County Defendants to Mr. Pfister’s risk of heart

failure an hour later or to any risk of physical harm to Mr. Pfister.

The absence of any warning signs of Mr. Pfister’s impending heart attack or that

he suffered heart problems render this case distinguishable from one of the cases Plaintiff

cites: Estate of Carter v. Hollins, 408 F.3d 305 (6th Cir. 2005). In that case, shortly after

she was booked, the prisoner informed her jailers that she was having chest pains and

needed to go to the hospital. Id. at 307. She also informed them that she had not taken

her “heart” medicine for three days. Id. The prisoner continued to complain of chest

pain, indicated that she needed to go to the hospital, and sought help. Id. In the

remaining cases cited by Plaintiff, the prisoners repeatedly suffered and complained of

pain and/or prison officials were made aware of but ignored medical treatment needed by

the prisoners. See, e.g., McElligott v. Foley, 182 F.3d 1248 (11th Cir. 1999) (indicating

that the prisoner had complained of severe stomach pains for several months); Young v.

City of Augusta, 59 F.3d 1160 (11th Cir. 1995) (describing the prisoner’s repeated

episodes of psychotic behavior while incarcerated); Hathaway v. Coughlin, 37 F.3d 63

(2d Cir. 1994) (describing the prisoner’s repeated complaints of hip pain following hip

replacement surgery and the defendants’ awareness that the pins in the prisoner’s hip had

2:09-cv-10981-PJD-PJK Doc # 30 Filed 10/30/09 Pg 10 of 12 Pg ID 540
11

broken); Durmer v. O’Carroll, 991 F.2d 34 (3d Cir. 1993) (ignoring physicians’

recommendations that the prisoner undergo physical therapy, his repeated requests for

physical therapy, and deteriorating physical condition without physical therapy).

Because the record is devoid of evidence alerting the County Defendants to Mr.

Pfister’s heart condition or impending heart attack, there is no genuine issue of material

fact with respect to the second prong of Plaintiff’s deliberate indifference claim. The

County Defendants could not be deliberately indifferent to a risk of harm to Mr. Pfister of

which they were unaware. Summary judgment therefore is appropriate with respect to

Count I of Plaintiff’s Complaint against the County Defendants.

Having found that the individual County Defendants were not deliberately

indifferent to Mr. Pfister’s medical needs, the Court finds it unnecessary to address

Macomb County’s liability under § 1983. Summary judgment is warranted with respect

to Count II of Plaintiff’s Complaint, as well.

Accordingly,

IT IS ORDERED, that the motion for summary judgment brought on behalf of

Defendants Macomb County, Sheriff Mark Hackel, Beverly Puchoven, James Harris,

Christopher Costanza, David White, Maria Balsama, Scott Jones, and Sergeant Patrick

Johnson is GRANTED.

s/PATRICK J. DUGGAN

UNITED STATES DISTRICT JUDGE

Copies to:

Daniel G. Romano, Esq.

2:09-cv-10981-PJD-PJK Doc # 30 Filed 10/30/09 Pg 11 of 12 Pg ID 541
12

Brian Richtarcik, Esq.

Jami E. Leach, Esq.

2:09-cv-10981-PJD-PJK Doc # 30 Filed 10/30/09 Pg 12 of 12 Pg ID 542