Rushing v. Wayne County

Boyle, J.

(concurring). I write separately because I believe the trial court erred in granting a directed verdict in favor of defendant Wayne County with respect to plaintiff’s claim that she was deprived of medical treatment while detained in the Wayne County Jail. Plaintiff’s evidence has shown a policy which grants complete discretion to the psychiatric staff with regard to when or whether to review or continue treatment of a person who, having been classified as potentially suicidal, is stripped and placed in a jail cell nude except for underpants. On the basis of the evidence presented at trial, the jury could have found that this policy evinced deliberate indifference to the serious medical needs of potentially suicidal prisoners.

i

I would add to the recitation of facts in the lead opinion certain trial evidence relevant to plaintiff’s claim of deprivation of medical treatment. John Nicholl, a social investigator at Wayne County Jail, testified that on June 9, 1976, he received a telephone call from plaintiff’s sister indicating that plaintiff had threatened suicide. Immediately after recording this information, Nicholl took the report to the office of Dr. Lebedevitch, the jail psychiatrist. Nicholl testified that the shift commander was contacted and plaintiff was ordered stripped.

There was no evidence that plaintiff was ever seen by Dr. Lebedevitch. She was seen by You Kim, the jail psychologist, on June 9, 1976. When Kim saw plaintiff, she was nude except for *270underpants. Kim felt that plaintiff was suicidal and classified her as "4t,” indicating "suicide potential acute” temporary. Kim ordered that plaintiff remain stripped, and indicated on his report of the visit that he would see plaintiff the following day. However, Kim did not see plaintiff again. To the best of Kim’s memory, plaintiff was subsequently seen by psychiatric social workers, and there was no reason for Kim or Dr. Lebedevitch to see her again, as she was adjusting. The jail administrator testified that if plaintiff had been seen by a psychiatric social worker, the event would have been recorded on the lieutenant logs, which indicate on an hour-by-hour basis what goes on in a given floor at the jail. However, the sheriff’s department was not able to produce the lieutenant logs recording events on the floor where plaintiff was housed during her stay at the jail. Plaintiff remained nude except for underpants until sometime on June 12, 1976, when her clothes were returned to her prior to her release from the jail.

According to jail procedures for the classification and treatment of potentially suicidal prisoners, any person classified as "[potentially suicidal acute” "shall be immediately reviewed by the Psychiatrist or Psychologist . . . .” Reception-Diagnostic Center Procedure No. 4 (RDC 4). The procedures further required that clothing, bedding, and any other articles that could be used for self destruction be removed from prisoners who appear imminently suicidal, RDC 4, ¶ 6(c). These procedures further provide that "[e]ach prisoner classified as potentially suicidal acute shall be reviewed daily by the Psychologist, in addition to the personal reviews of the Psychiatrist. Review by the Psychologist will be for the purpose of monitoring the progress of these prisoners, and to advise the *271Psychiatrist of the possibility of reclassification and relocation.” RDC 4, ¶ 7(a).

When these procedures were prepared, an original copy was forwarded to Jail Administrator Frank Wilkerson for his review and approval. The document was signed by Wilkerson, who according to his own testimony set policies for the jail. Notwithstanding the provisions regarding the continued review of "potentially suicidal acute” prisoners, the jail administrator testified that he did not and could not tell a psychiatrist or psychologist what to do with respect to an individual inmate. According to Wilkerson, it was totally within psychologist Kim’s responsibility to see plaintiff when he felt it was appropriate to do so. Kim testified that thousands of people had been stripped at the jail, and that he would usually see them two to four times in a span of two to four months.1

Carl Recter, Deputy Director of the Reception-Diagnostic Center at Wayne County Jail, testified that the professional judgment of the psychiatrist would determine the quality or extent of the care an inmate would receive. He testified that Reception-Diagnostic Center Procedure No. 4 was intended for the center’s personnel, and was not intended to give orders to the psychiatrist or psychologist.2

ii

I concur in part iii(a) of the lead opinion, holding that the county may not claim immunity to § 1983 by relying on Const 1963, art 7, § 6, and reaffirm*272ing that "the policies of the sheriff and the jail administrator regarding the operation of the jail were attributable to the county.” (Ante, p 260.) Since defendant did not dispute the existence of plaintiff’s protected liberty interest in not being exposed to members of the opposite sex, I concur in the analysis of the lead opinion. However, in my view the facts of this case are more suited to a claim based on deprivation of the pretrial detainee’s due process right to medical treatment.

hi

A local government is subject to § 1983 liability "when execution of a government’s policy or custom, whether by its lawmakers or by those whose edicts or acts may be fairly said to represent official policy, inflicts the injury . . . .” Monell v Dep’t of Social Services of New York City, 436 US 658, 694; 98 S Ct 2018; 56 L Ed 2d 611 (1978). In order for the county to be held liable for a constitutional deprivation, the county itself must cause the constitutional deprivation. Thus, the Court of Appeals correctly stated that Wayne County cannot be held liable on a respondeat superior theory. Id. at 691.

"[T]he word 'policy’ generally implies a course of action consciously chosen from among various alternatives . . . .” Oklahoma City v Tuttle, 471 US 808, 823; 105 S Ct 2427; 85 L Ed 2d 791 (1985). In Pembaur v Cincinnati, 475 US 469, 480-481; 106 S Ct 1292; 89 L Ed 2d 452 (1986), the Court noted that " 'official policy’ ” often refers to formal rules or understandings—often but not always committed to writing—that are intended to, and do, establish fixed plans of action to be followed under *273similar circumstances consistently and over time.”3 In Pembaur, Justice Brennan in a plurality opinion further stated that "municipal liability under § 1983 attaches where—and only where—a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.” Id. at 483-484.

An official must be responsible for establishing final government policy before a governmental entity may be held liable for the acts of such official. Id. at 482-483 (plurality opinion). Final policymaking authority may be delegated, and the person to whom it is delegated may then act so as to render the governmental entity liable under § 1983. Id. at 483, 485. In St Louis v Praprotnik, 485 US 112, 125; 108 S Ct 915; 99 L Ed 2d 107 (1988), a plurality of the Court stated that "state law (which may include valid local ordinances and regulations) will always direct a court to some official or body that has the responsibility for making law or setting policy in any given area of a local government’s business.” The identification of policymaking officials is a question for the court. Jett v Dallas Independent School Dist, 491 US 701, 737; 109 S Ct 2702; 105 L Ed 2d 598 (1989). In making this determination, the court should look not only to "state and local positive law,” but also to " ’ "custom or usage” having the force of law.’ ”

*274In Tuttle, supra at 823, the Court stated that in order to show a policy of inadequate training, the plaintiff would have to prove "that the policymakers deliberately chose a training program which would prove inadequate.” In City of Canton v Harris, 489 US 378, 388; 109 S Ct 1197; 103 L Ed 2d 412 (1989), the Court again considered a claim of municipal liability grounded on inadequate training of police officers and held that inadequate training could serve as a basis for § 1983 liability "only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact.”

The Court in Canton explained the reason for requiring a policy evincing deliberate indifference to support a claim of inadequate training:

This rule is most consistent with our admonition in Monell, 436 US at 694 . . . that a municipality can be liable under § 1983 only where its policies are the "moving force [behind] the constitutional violation.” Only where a municipality’s failure to train its employees in a relevant respect evidences a "deliberate indifference” to the rights of its inhabitants can such a shortcoming be properly thought of as a city "policy or custom” that is actionable under § 1983. [Id., pp 388-389.]

Several of the federal circuits, in cases predating Canton, have recognized a governmental policy by virtue of the failure of governmental policymakers to establish rules or procedures where rules are called for. "[I]n situations that call for procedures, rules or regulations, the failure to make policy itself may be actionable.” Jones v Chicago, 787 F2d 200, 204 (CA 4, 1986). In Mairena v Foti, 816 F2d 1061, 1065 (CA 5, 1987), cert den 484 US 1005 (1988), the court concluded that "failure to establish policies to protect material witnesses from *275wrongful arrest and incarceration was the result of callous indifference and not mere negligence.” See also Fiacco v City of Rensselaer, 783 F2d 319, 326 (CA 2, 1986), cert den 480 US 922 (1987) (the city’s failure to use reasonable care in investigating claims of police brutality demonstrated a policy of deliberate indifference to the constitutional rights of persons within the city’s domain).

iv

The Due Process Clause of the Fourteenth Amendment requires the government to provide needed medical treatment to a pretrial detainee. Revere v Massachusetts General Hosp, 463 US 239, 244; 103 S Ct 2979; 77 L Ed 2d 605 (1983). The due process protections afforded a pretrial detainee are "at least as great as the Eighth Amendment protections available to a convicted prisoner.”4 In Estelle v Gamble, 429 US 97, 104; 97 S Ct 285; 50 L Ed 2d 251 (1976), the United States Supreme Court concluded that "deliberate indifference to serious medical needs of prisoners” would violate the Eighth Amendment proscription against cruel and unusual punishment.

Several of the federal circuits, when considering the standard of medical care constitutionally guaranteed a pretrial detainee, have applied the stan*276dard of deliberate indifference to a serious medical need. See Boring v Kozakiewicz, 833 F2d 468 (CA 3, 1987), cert den 485 US 991 (1988); Whisenant v Yuam, 739 F2d 160 (CA 4, 1984); Jones v Johnson, 781 F2d 769 (CA 9, 1986); Garcia v Salt Lake Co, 768 F2d 303 (CA 10, 1985); Hamm v DeKalb Co, 774 F2d 1567 (CA 11, 1985), cert den 475 US 1076 (1986). In Hamm, the United States Court of Appeals for the Eleventh Circuit noted that many jails house convicted prisoners as well as pretrial detainees, so that a different standard of constitutional guarantees for these two groups would result in the courts becoming " 'enmeshed in the minutiae of prison operations’ . . . .” Id. at 1574. See also Boring, supra at 472. The Seventh Circuit Court of Appeals has defined a greater protection for pretrial detainees, holding that the due process right of a pretrial detainee is violated when a jailer "fails to promptly and reasonably procure competent medical aid for a pretrial detainee who suffers a serious illness or injury while confined.” Matzker v Herr, 748 F2d 1142, 1147 (CA 7, 1984). Finally, the Fifth and Eighth Circuits recognize a duty to provide pretrial detainees at a minimum the level of medical care required for convicted prisoners under the Eighth Amendment, Partridge v Two Unknown Police Officers, 791 F2d 1182 (CA 5, 1986); Boswell v Sherburne Co, 849 F2d 1117 (CA 8, 1988), cert den 488 US 1010 (1989), without deciding whether greater protections may be provided under the Due Process Clause of the Fourteenth Amendment.

It is not necessary in this case to define the exact parameters of a pretrial detainee’s right to medical treatment. This is because under § 1983 jurisprudence the county’s policy of nonsupervision of psychiatric and psychological personnel must itself evince deliberate indifference in order *277to subject the county to liability. Canton, supra. Because a showing of deliberate indifference is required by the standard for county liability, we need not decide whether some lesser level of intent would have been sufficient to hold an individual official liable for a deprivation of medical care guaranteed plaintiff by the Fourteenth Amendment.

v

I would find that the jail administrator is the final policymaker for Wayne County with respect to the Wayne County Jail. The sheriff, as law enforcement arm of the county, makes policy in police matters. Marchese v Lucas, 758 F2d 181 (CA 6, 1985), cert den 480 US 916 (1987); Const 1963, art 7, § 4. See also Police Officers v Wayne Co, 93 Mich App 76, 82; 286 NW2d 242 (1979). While it might be argued that the sheriff retained ultimate decision-making authority over the jail, I would find, on the basis of the evidence presented at trial, that such authority was delegated to Frank Wilkerson.5 The jail administrator’s own testimony indicated that he set policies for the jail. The truth of that assertion is illustrated by the fact that the jail procedures (Reception-Diagnostic Center Proce*278dure No. 4) were sent to Wilkerson for his approval and, when distributed, were signed by Wilkerson.

There was ample evidence from which the jury could have concluded that it was the policy of Wayne County to cede total discretion regarding the psychiatric treatment of stripped inmates to the jail psychiatrist or psychologist. The existence of such a policy is apparent in the testimony of the jail administrator. Wilkerson’s testimony that he would never question a psychiatrist’s exercise of discretion itself illustrates a policy of nonsupervision of jail psychiatric staff. Nor can I conclude as a matter of law that the chosen policy is a matter of mere negligence or default. The need for review of potentially acutely suicidal prisoners for monitoring and possible reclassification was known. Wilkerson himself reviewed and approved jail procedures which required daily review by a psychologist of persons classified as potentially suicidal, acute. The choice to delegate complete discretion to the psychiatric staff with regard to whether and when to review persons classified as potentially suicidal, acute, and stripped, thus constitutes "a course of action consciously chosen from among various alternatives,” Tuttle at 823.

I would hold, by analogy to Canton, that a policy of placing total discretion in prison psychiatric personnel, or put another way, a policy of complete nonsupervision of such personnel, is actionable under § 1983 if it constitutes deliberate indifference to the rights of individuals with whom those personnel come in contact. Canton, p 388. If inadequate training may constitute deliberate indifference, then the failure of a policymaker to enforce proper procedures, in effect creating a policy of total discretion in the prison psychiatric *279personnel, likewise may evince deliberate indifference to the constitutional rights of prisoners.

The question thus becomes whether the policy of granting total discretion to the psychiatric staff regarding when or whether to review and monitor a suicidal and stripped inmate demonstrated deliberate indifference to the serious medical needs of the stripped and suicidal inmate. A jury could well conclude that in the circumstances existing in this case, a rule of total discretion constitutes deliberate indifference to the serious medical needs of persons stripped for suicide prevention.

Several circuits have recognized that the need for psychiatric treatment may constitute a serious medical need. "A serious medical need may exist for psychological or psychiatric treatment, just as it may exist for physical ills.” Partridge v Two Unknown Police Officers, supra at 1187; Inmates of Allegheny Co Jail v Pierce, 612 F2d 754, 763 (CA 3, 1979). Roberts v Troy, 773 F2d 720, 724 (CA 6, 1985). A factfinder could reasonably conclude that a suicidal woman who is stripped nude except for underpants and placed in a jail cell has a serious medical need for continued psychiatric review and monitoring.

Moreover, there is evidence from which a jury could conclude that the policy of granting total discretion to the psychiatric staff with regard to the treatment of stripped and suicidal patients represents deliberate indifference on the part of the jail administrator. As previously noted, having reviewed and approved jail procedures calling for a daily review by a psychiatrist of persons classified as potentially acutely suicidal, the administrator was aware of the need for such review, for purposes of monitoring as well as possible reclassification. The policy, whether it is characterized as one of nonenforcement of written procedures, of non-*280supervision of psychiatric personnel, or of complete delegation of discretion to psychiatric personnel, under the circumstances may be found to be a policy of deliberate indifference.

CONCLUSION

I would remand for retrial on plaintiff’s theory that defendant Wayne County’s policy of ceding total discretion regarding the treatment and review of suicidal and stripped inmates evinced deliberate indifference to the serious medical needs of plaintiff.

Dr. Lebedevitch, the jail psychiatrist, did not testify at trial.

There was no psychiatrist or psychologist on the staff of the Reception-Diagnostic Center. Kim was the only psychologist at the jail and Lebedevitch was the only psychiatrist.

The Court in Pembaur further held that municipal liability may be justified by a single instance of conduct if "the decision to adopt that particular course of action is properly made by that government’s authorized decisionmakers . . . .” Id. at 481. Although plaintiff’s theory of deprivation of medical treatment does not rest on a single act—the policy of nonsupervision of the psychiatric care of stripped and suicidal inmates clearly applied to all cases and not to plaintiff only—the definition of a policymaker is relevant to this case, to determine whether the nonwritten policy articulated by Frank Wilkerson is attributable to the county.

While the United States Supreme Court has held that the protections of the Due Process Clause are not triggered by mere negligence of prison officials, Daniels v Williams, 474 US 327; 106 S Ct 662; 88 L Ed 2d 662 (1986); Davidson v Cannon, 474 US 344; 106 S Ct 668; 88 L Ed 2d 677 (1986), it has not settled the question whether an intent less than deliberate indifference may deprive a pretrial detainee of due process. In Canton v Harris, supra, p 388, n 8, the Supreme Court noted that it had in Revere "reserved decision on the question whether something less than the Eighth Amendment’s 'deliberate indifference’ test may be applicable in claims by detainees asserting violations of their due process right to medical care while in custody.” The Court in Canton again declined to settle the definition of the due process rights of a pretrial detainee to medical treatment.

I would find no merit in plaintiff’s claim that Dr. Lebedevitch and psychologist Kim were policymakers whose acts could, by virtue of that status, render the county liable under § 1983. While Lebedevitch and Kim were granted complete discretion in their treatment of suicidal and stripped prisoners, it was not they who adopted the policy of complete discretion. The distinction between discretion vested in a government official and final policymaking authority is discussed in Justice Brennan’s (plurality) opinion in Pembaur:

The fact that a particular official—even a policymaking official—has discretion in the exercise of particular functions does not, without more, give rise to municipal liability based on an exercise of that discretion. [475 US 481-482.]