UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MICHIGAN PROTECTION &

ADVOCACY SERVICE, INC.

Plaintiff,

v. Case No. 09-12224

HONORABLE DENISE PAGE HOOD

WARREN C. EVANS, In his Official

Capacity as Sheriff of Wayne County,

Defendant.

_______________________________________/

ORDER GRANTING PLAINTIFF’S MOTION FOR SUBSTITUTION OF DEFENDANT,

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, PLAINTIFF’S MOTION FOR

PERMANENT INJUNCTION, AND DENYING IN PART AND GRANTING IN PART

PLAINTIFF’S MOTION FOR COSTS/ ATTORNEY FEES

I. INTRODUCTION

This matter is before the Court on Plaintiff Michigan Protection & Advocacy Service,

Inc.’s (“MPAS”) Motion for Substitution of Defendant, Summary Judgment, Permanent

Injunction, and Costs/Attorney Fees [Docket No. 15, filed on September 3, 2009]. Defendant

Warren C. Evans responded on September 15, 2009 [filed on October 15, 2009], to which

Plaintiff replied [Docket No. 21, filed on October 19, 2009]. Defendant filed a Response in

Opposition to an Award of Prevailing Party Costs Pursuant to 42 U.S.C. 1988(B) & Fed. R. Civ.

P. 54 [Docket No. 33, filed on June 29, 2010]. Plaintiff filed a Reply in Support of Its Motion

for Attorney Fees [Docket No. 34, filed on July 7, 2010].

II. STATEMENT OF FACTS

Plaintiff is a non-Profit Michigan corporation, designated by the Governor of Michigan

Case 2:09-cv-12224-DPH-RSW ECF No. 36, PageID.340 Filed 09/30/10 Page 1 of 11
1

 Plaintiff does not contend that DD applies to these inmates, but only that if the inmates

are protected under PAIR, they have the same rights, shall receive the same services, and the

P&A will have the same responsibilities and authority to assist them, as those individuals

protected under DD. See 29 U.S.C. § 794e(f)(2).

2

as the state’s protection and advocacy (P&A) system with the responsibility to enforce and carry

out federal mandates under the Protection and Advocacy for Individuals with Mental Illness Act

of 1986 (PAIMI); the Developmental Disabilities Assistance and Bill of Rights Act of 2000

(DD); and the Protection and Advocacy of Individual Rights (PAIR) Program of the

Rehabilitation Act of 1973, as amended. 

According to Plaintiff, on or around January 16, 2009, Plaintiff learned of the suicides of

two inmates at the Wayne County Jail. Inmate #1 was found dead in his cell on January 15,

2009. Inmate #2 was found dead in his cell on January 14, 2009. Plaintiff contends that county

jails are required to have policies and procedures in place to screen inmates for suicidal

tendencies and to prevent suicides, so the suicides of these inmates indicate they had mental

health issues that were not being addressed, and were possibly victims of abuse and/or neglect.

Based on information in reports it received, MPAS determined it had probable cause to open an

investigation into the suicidal deaths of these two inmates.

Defendant maintains that all inmates booked in the Wayne County Jail receive suicide

risk assessment. According to Wayne County staff psychologist Dr. John Restum, neither

inmate evidenced the requisite criteria to be diagnosed with a developmental disability. 

Plaintiff sent a request for records to Defendant on or around January 28, 2009,

requesting all documents regarding these two inmates, pursuant to PAIMI, DD, and PAIR.

1 On

March 17, 2009, Plaintiff made another request. On April 7, 2009, Defendant’s Freedom of

Case 2:09-cv-12224-DPH-RSW ECF No. 36, PageID.341 Filed 09/30/10 Page 2 of 11
3

Information Act (“FOIA”) officer denied the request for records relating to Inmate #1, because

DD and PAIR were not applicable, and PAIMI did not require the release because Inmate #1’s

family was already investigating the matter. On May 11, 2009, Plaintiff responded stating that,

although it disagreed with Defendant’s interpretation of PAIMI, Plaintiff would try to contact

both inmates’ legal representatives. Plaintiff also stated PAIMI required Defendant to promptly

disclose the inmates’ legal representatives and provide their contact information. On June 11,

2009, Defendant’s FOIA officer denied Plaintiff’s request with respect to Inmate #2.

Defendant’s FOIA officer sent a letter to Plaintiff, received in early July, which identified

two attorneys, Michael A. Rataj and Juan Mateo, who were reported to represent Inmate #1’s

estate. Since that time, Plaintiff has received a letter from attorneys Rataj and Mateo stating they

“no longer represent the Estate of Inmate #1, nor do [they] know who is the personal

representative of his estate.” October 20, 2009 Letter to MPAS [Docket No. 22, filed on October

21, 2009]. It appears that there is no estate case open and no personal representative has been

appointed to represent Inmate #1’s estate.

Defendant maintains that although Plaintiff has requested all medical and psychiatric

records from Defendant, Defendant does not control medical or psychiatric records. Instead, the

records are controlled by Jail Health Services. Defendant also contends that Plaintiff failed to

exhaust administrative remedies by appealing the FOIA denials to Wayne County’s FOIA

Appellate Officer before filing this action.

The parties now agree that Inmate #2 has a personal representative, Jacob Salazar, and

Plaintiff no longer seeks a court order to receive documentation relative to Inmate #2. The

following analysis is therefore limited to Inmate #1.

Case 2:09-cv-12224-DPH-RSW ECF No. 36, PageID.342 Filed 09/30/10 Page 3 of 11
4

III. LAW & ANALYSIS

A. SUBSTITUTION OF DEFENDANT

Neither party disputes that Warren Evans is no longer the Wayne County Sheriff, and this

action was brought against him in his official capacity. Benny Napolean was named Sheriff on

July 24, 2009. Pursuant to Fed. R. Civ. P. 25(d), Plaintiff’s motion to substitute counsel is

granted.

B. SUMMARY JUDGMENT

1. Standard of Review

Pursuant to Rule 56(c), summary judgment may only be granted in cases where “the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law.” The moving party bears the burden of showing

no dispute as to any material issue. Equal Employment Opportunity Comm’n v. MacMillan

Bloedel Containers, Inc., 503 F.2d 1086, 1093 (6th Cir. 1974). A dispute must be clear from the

evidence in order to deny such a motion. Such a dispute must not merely rest upon the

allegations or denials in the pleadings, but instead must be established by affidavits or other

documentary evidence. Fed. R. Civ. P. 56(e). When ruling, the Court must consider the

admissible evidence in the light most favorable to the non-moving party. Sagan v. United States

of Am., 342 F.3d 493, 497 (6th Cir. 2003). 

2. Analysis

a. Failure to Exhaust Administrative Remedies

Case 2:09-cv-12224-DPH-RSW ECF No. 36, PageID.343 Filed 09/30/10 Page 4 of 11
5

Defendant does not dispute that PAIMI authorizes Plaintiff to “investigate incidents of

abuse and neglect of individuals with mental illness if the incidents are reported to the system or

if there is there is probable cause to believe that the incidents occurred.” 42 U.S.C. §

10805(a)(1)(A). Defendant challenges Plaintiff’s ability to bring a claim in front of this Court,

alleging that Plaintiff has failed to exhaust all administrative remedies pursuant to 42 U.S.C. §

10807.

Defendant acknowledges that courts have “substantial discretion regarding exhaustion by

eligible systems.” Gonzalez v. Martinez, 756 F.Supp. 1533, 1599 (S.D.Fla 1991). “The

legislature obviously intended that advocacy systems retain some flexibility in determining

which informal-or inadequate-administrative remedies to pursue,” and whether an agency has

“exhausted all appropriate administrative remedies can only be determined on a case by case

basis.” Id. Plaintiff produces 

This Court finds that MPAS has not failed to exhaust available administrative remedies,

and may proceed with this action. Defendant argues that the agency failed to pursue

administrative remedies by filing an appeal to the Wayne County FOIA appellate officer. The

Court agrees with Plaintiff that the FOIA appeal process is not applicable, as the records of the

inmates were requested under the protection and advocacy laws, not the FOIA. No FOIA

request was made, so analysis under FOIA is not appropriate.

b. Defendant’s Access to Records

Defendant further argues that Plaintiff’s request for “[a]ll documentation (including any

incident reports, case notes, witness statements, mental health records, etc.) . . .” should not have

been made to Defendant, but rather Jail Health Services, a separate entity under the executive

Case 2:09-cv-12224-DPH-RSW ECF No. 36, PageID.344 Filed 09/30/10 Page 5 of 11
6

branch of Wayne County. Defendant does not explain how Jail House Services is connected to

the jail. There is no information provided regarding to whom they report, the identity of the

directors, and what authority they have.

Pursuant to M.C.L. 51.75, Defendant has “charge and custody of the jails of his county,

and of the prisoners in the same; and shall keep them himself, or by his deputy or jailer.” 

Defendant has not presented any evidence to show that he is not required to keep, or have

custody or control over, the medical records of inmates in his custody.

c. Developmental Disability

Defendant argues that Plaintiff sues Defendant under the PAIR and DD Acts, and that

each of these require the protected individual to have a developmental disability. Defendants

submit the affidavit of a Wayne County clinical psychologist, stating “[t]he allegations by MPAS

are unfounded. Neither inmate evidenced any diagnostic criteria to meet the developmental

disability diagnosis.” Affidavit of Dr. John Restum, ¶ 3. Plaintiff argues that it also brings this

motion under PAIR and PAIMI, and that the affidavit is not relevant to the instant motion.

PAIR does not require that an individual be developmentally disabled. Instead, it

protects “the legal and human rights of individuals with disabilities who . . . are ineligible for

protection and advocacy programs under [DD] because the individuals do not have a disability”

and “are ineligible for services under [PAIMI] because the individuals are not such individuals

with mental illness.” 29 U.S.C. § 794e(1). 

d. Inmate #1’s Eligibility for P&A Services

If Inmate #1 had a specific mental health diagnosis by a mental health profession, he

would be eligible for P&A services under PAIMI. 42 U.S.C. § 10802(4). If his mental health

Case 2:09-cv-12224-DPH-RSW ECF No. 36, PageID.345 Filed 09/30/10 Page 6 of 11
7

impairment began before age twenty-two and resulted in the substantial limitation of three or

more major life activities, he would be covered under PAIMI. 42 U.S.C. § 15102(8). If he had a

mental health impairment that resulted in the substantial limitation of a major life activity and

did not qualify for services under PAIMI or DD, he would be eligible for services under the

PAIR. 29 U.S.C. § 794e.

Plaintiff argues that it has probable cause to believe Inmate #1 is protected under one or

more of the P&A statutes, because he exhibited a mental health impairment so severe that it

resulted in him taking his own life. “As a number of courts that have considered this issue have

concluded, evidence that a facility has previously housed individuals who are mentally ill, as

well as evidence that some current residents may be mentally ill is sufficient under PAMII [sic]

with access by [P & As].” Protection & Advocacy for Persons with Disabilities v. Armstrong,

266 F.Supp.2d 303, 314 (D.Conn. 2003) (internal quotations omitted). There is no genuine issue

of material of fact as to whether Wayne County Jail is a facility that has previously housed or

currently houses individuals who are mentally ill. See id. Furthermore, the fact that Inmate #1

“committed suicide certainly suggests that [h]e suffered from some sort of mental illness or

condition.” Id. There is no genuine issue of material fact that Inmate #1 committed suicide. 

Under either of these criteria, Plaintiff has established probable cause to believe Inmate #1 is

protected under one or more P&A statutes, such that it is entitled to judgment as a matter of law.

e. Plaintiff’s Access to Records

Having already concluded that Inmate #1 is protected under one or more of the P&A

statutes, Plaintiff is also entitled to access all records concerning Inmate #1 for the purpose of

conducting an investigation into abuse and neglect. Pursuant to PAIMI, Plaintiff is entitled to

Case 2:09-cv-12224-DPH-RSW ECF No. 36, PageID.346 Filed 09/30/10 Page 7 of 11
8

documents under 42 U.S.C. § 10805(a)(4)(B)(ii), which provides “access to all records of any

individual (including an individual who has died or whose whereabouts are unknown who does

not have a legal guardian, conservator, or other legal representative, or for whom the legal

guardian is the State.” Under DD, which also applies to one eligible for PAIR, provides “access

to the records of individuals . . . and other records that are relevant to conducting an

investigation . . . in any case of death of an individual with a developmental disability.” 42

U.S.C. § 15043(a)(2)(J)(i)(II). As discussed above, there is no genuine issue of material fact

about Plaintiff’s entitlement to these records with respect to Inmate #1. Plaintiff’s motion for

summary judgment requesting a declaratory judgment is granted.

C. PERMANENT INJUNCTION

1. Standard of Review

In the Sixth Circuit, “[a] plaintiff seeking a permanent injunction must demonstrate that it

has suffered irreparable injury, there is no adequate remedy at law, that, considering the balance

of hardships between the plaintiff and defendant, a remedy in equity is warranted, and that it is in

the public’s interest to issue the injunction.” Audi AG v. D’Amato, 469 F.3d 534, 550 (6th Cir.

2006). Plaintiff’s motion does not appear to limit the records requested to Inmate #1. However,

Plaintiff’s Complaint clearly seeks permanent injunctive relief “requiring Defendant to provide

MPAS all reports, documents, and records relating to Inmate #1. . .” Complaint ¶ B. Having

already established that Plaintiff is entitled to access to Inmate #1's records, the Court’s

balancing of the four factors listed above indicate a permanent injunction is warranted in this

case with respect to Inmate #1. 

2. Analysis

Case 2:09-cv-12224-DPH-RSW ECF No. 36, PageID.347 Filed 09/30/10 Page 8 of 11
9

First, Plaintiff cites a host of cases supporting the principle that Plaintiff suffers

irreparable harm when it is unable to fulfill its mandate under federal law, cannot determine if

there was abuse or neglect, and cannot make recommendations for changes in policy and

procedure to prevent such abuse and neglect in the future. See, e.g., Connecticut Office of

Protection and Advocacy v. Hartford Board of Education, 355 F.Supp.2d 649, 653 (D. Conn.

2005); Ohio Legal Rights Service v. Buckeye Ranch, Inc., 365 F.Supp.2d 877 (S.D. Ohio 2005);

Wisconsin Coalition for Advocacy, Inc. v. Czaplewski, 131 F.Supp.2d 1039 (E.D. Wi. 2001);

Office of Protection and Advocacy for Persons with Disabilities v. Armstrong, 266 F.Supp.2d

303 (D. Conn. 2003). Without access to the necessary records, Plaintiff suffers irreparable harm. 

Given the nature of the case, there is unquestionably no adequate remedy at law and a remedy in

equity is warranted. As stated by Plaintiff, inmate suicide is a significant and important problem. 

It is in the public’s interest to have agencies such as Plaintiff able to access the necessary records

to ensure individuals with disabilities are not suffering from abuse or neglect. Providing access

to the records of Inmate #1 will allow Plaintiff to do a thorough investigation in furtherance of

this goal.

D. COSTS/ATTORNEY FEES

Plaintiff requests reasonable attorney fees and costs associated with both Inmate #1 and

Inmate #2, under 42 U.S.C. § 1988 and Fed. R. Civ. P. 54. Under 42 U.S.C. § 1988(b), “the

court, in its discretion, may allow the prevailing party, other than the United States, a reasonable

attorney’s fee as part of the costs.” Under Fed. R. Civ. P. 54, “[u]nless a federal statute, these

rules, or a court order provides otherwise, costs– other than attorneys fees– should be allowed to

the prevailing party.”

Case 2:09-cv-12224-DPH-RSW ECF No. 36, PageID.348 Filed 09/30/10 Page 9 of 11
10

In this case, there is no federal statute, rule, or court order that would prevent the

prevailing party from receiving costs. The Supreme Court has defined the term “prevailing

party.” The Supreme Court explains:

In designating those parties eligible for an award of litigation costs, Congress employed

the term “prevailing party,” a legal term of art. Black's Law Dictionary 1145 (7th

ed.1999) defines “prevailing party” as “[a] party in whose favor a judgment is rendered,

regardless of the amount of damages awarded <in certain cases, the court will award

attorney's fees to the prevailing party>.-Also termed successful party.” This view that a

“prevailing party” is one who has been awarded some relief by the court can be distilled

from our prior cases.

Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dept. of Health & Human Resources, 532

U.S. 598, 603 (2001).

In this case, Plaintiff is a prevailing party with respect to Inmate #1. Plaintiff has

succeeded on a motion for summary judgment, and been awarded relief in the form of an

injunction by the court. With respect to Inmate #2, Plaintiff cannot be considered a prevailing

party. This Court has awarded no relief to Plaintiff regarding Inmate #2. Inmate #2’s personal

representatives have brought an action on his own behalf, and Plaintiff dropped all claims with

respect to Inmate #2. In its discretion, this Court awards reasonable costs and attorney fees with

respect to Inmate #1 only. Plaintiff must produce documentation of costs and attorney fees,

limited to those associated with Inmate #1, for a determination of the amount to be awarded.

IV. CONCLUSION

Accordingly,

IT IS ORDERED that Plaintiff Michigan Protection & Advocacy Service, Inc.’s Motion

for Substitution of Defendant [Docket No. 15, filed on September 3, 2009] is GRANTED.

Case 2:09-cv-12224-DPH-RSW ECF No. 36, PageID.349 Filed 09/30/10 Page 10 of 11
11

IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary Judgment [Docket

No. 15, filed on September 3, 2009] is GRANTED as to Inmate #1, and MOOT as to Inmate

#2.

IT IS FURTHER ORDERED that Plaintiff’s Motion for Permanent Injunction [Docket

No. 15, filed on September 3, 2009] is GRANTED with respect to the records of Inmate #1.

IT IS FURTHER ORDERED that Plaintiff’s Motion for Costs/Attorney Fees [Docket

No. 15, filed on September 3, 2009] is DENIED IN PART (with respect to costs and attorney

fees associate with Inmate #2) and GRANTED IN PART (with respect to costs and attorney

fees associated with Inmate #1). 

IT IS FURTHER ORDERED that Plaintiff’s Motion for Declaratory Judgment [Docket

No. 15, filed on September 3, 2009] is GRANTED. Defendant is required to disclose to

Plaintiff all records relating to Inmate #1.

S/Denise Page Hood

Denise Page Hood

United States District Judge

Dated: September 30, 2010

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

on September 30, 2010, by electronic and/or ordinary mail.

S/William F. Lewis 

Case Manager

Case 2:09-cv-12224-DPH-RSW ECF No. 36, PageID.350 Filed 09/30/10 Page 11 of 11