Kelli Ann Grabow v. Macomb Cnty. , 580 F. App'x 300 ( 2014 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0675n.06
No. 13-2609 FILED
Aug 29, 2014
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
KELLI ANN GRABOW, Individually )
and as Personal Representative of the )
Estate of KRISTINA PROCHNOW, )
deceased, )
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR THE
) EASTERN DISTRICT OF MICHIGAN
COUNTY OF MACOMB, a political )
Subdivision of the State of Michigan, and )
DEPUTY AMY FRANKS, jointly and )
severally, )
)
Defendants-Appellees. ) OPINION
Before: WHITE, DONALD, and O’MALLEY*, Circuit Judges.
O’MALLEY, Circuit Judge. This case involves Kristina Prochnow’s suicide while an
inmate at the Macomb County jail (“the jail”). Plaintiff-Appellant Kelli Ann Grabow, as
personal representative of Prochnow’s estate, brought suit against Defendants-Appellees County
of Macomb (“the County”) and Deputy Amy Franks under 42 U.S.C. § 1983 (2012) and state
law, alleging that the defendants-appellees displayed deliberate indifference to Prochnow’s
serious medical needs while in custody. The district court granted summary judgment in favor of
defendants-appellees, ultimately determining that Grabow failed to demonstrate the subjective
*
The Honorable Kathleen M. O’Malley, Circuit Judge for the United States Court of Appeals for the
Federal Circuit, sitting by designation.
No. 13-2609, Grabow v. Macomb
knowledge necessary for a constitutional violation under the Eighth and Fourteenth
Amendments. For the following reasons, we AFFIRM the district court’s judgment.
I
A
On August 13, 2011, Prochnow’s boyfriend, Nicholas D’Aquila, contacted the police,
claiming he was the victim of domestic violence and that “[t]here was something wrong with
[Prochnow].” Grabow v. Cnty. of Macomb, No. 12-10105, 2013 WL 5816544, at *1 (E.D. Mich.
Oct. 29, 2013). When the police arrived, Prochnow acted aggressively and attempted to run
from the police, causing the police to taser her. At the scene, her arresting officer completed a
“Jail Detention Card,” answering “No” to a question on the card that asked if the prisoner had
verbalized thoughts of suicide. The arresting officer then took Prochnow to Macomb County
jail.
Prochnow previously had been incarcerated at the jail on at least twelve separate
occasions. During a prior incarceration in 2008, officials placed Prochnow in observation status
because she expressed an interest in self-harm. After twenty-five hours under observation,
officials determined that Prochnow was no longer a suicide threat and moved her to the general
population, where she remained for a month without incident. Prochnow was last booked into
the jail in November 2010, where officials placed her on special medical alert status because she
was pregnant. Prochnow also had been diagnosed with depression and bipolar disorder, and had
attempted suicide on one occasion outside the jail in 2010.
B
The County has regulations in place covering prisoner intake and processing. See id. at
*2–4. Under the regulations, intake officers have a duty to determine if an inmate is in need of
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immediate medical or psychological treatment. If the inmate requires emergency treatment, the
inmate is not to be accepted at the jail; the transporting officer is to take the inmate to a hospital.
If the inmate is taken into the jail’s custody, the transporting officer must present the “Jail
Detention Card” along with the potential inmate. Upon receipt of the inmate, the intake officers
immediately pat-down the inmate and assess her to determine if she will require special
classification. At minimum, this requires the officers to complete an Initial
Classification/Temporary Cell Assignment form based on direct questioning of the inmate and
visual observations of her demeanor. The Initial Classification/Temporary Cell Assignment
form includes six questions relating to suicide risk:
(1) Does inmate hold a position of respect or prominence in the community or is
the offense shocking in nature?
(2) Do you have any unusual home or family problems we should know about?
(3) Have you ever been in a mental institution or had psychiatric care?
(4) Have you ever attempted or contemplated suicide? When? Where?
(5) Are you now contemplating suicide?
(6) Does the Inmate’s behavior suggest a suicide risk?
Id. at *5. As of August 13, 2011, these regulations did not require that the officer who performs
the pat-down also interview the inmate for the Initial Classification/Temporary Cell Assignment
form.1
Once the intake officers complete the Initial Classification/Temporary Cell Assignment
form, the computer booking officer enters the information into the jail’s “Offendertrak”
computer system, and then assigns the inmate to either general population or a specific mental
health observation status. The officer assigns the inmate to a heightened observation status
based on inmate need, current pending charges, inmate legal status, predatory risk, current
1
After the events surrounding Prochnow’s death, the jail updated its regulations. Now, the first officer who comes
into contact with the inmate, usually the officer who performs the pat-down, must perform the initial screening
based on the questions provided on the Initial Classification/Temporary Cell Assignment form. That officer will fill
out the form by hand in front of the inmate and then pass the form and the Jail Detention Card to another officer,
who enters the information into the computer network.
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physical/mental health, and suicide risk factors. If the inmate demonstrates a high risk for self-
harm or a desire or intent to commit suicide, the officer refers the inmate to the mental health
staff and places the inmate in one of three observation statuses: (1) “High Observation,”2 if the
inmate is actively suicidal; (2) “Close Observation,”3 if the inmate is not actively suicidal but has
a recent history of suicide attempts; or (3) “Suicide Caution,” if the inmate has been suicidal or
indicated an intent to harm themselves in the past. After intake, a member of the health services
staff screens all prisoners for both physical and mental health concerns. If the health services
staff deems the prisoner to be a suicide risk, the staff member places the inmate in a High
Observation cell with a “Suicide Caution” status. After the initial classification determination by
the intake officers and health services staff, a more detailed, primary classification analysis by a
Classification Officer will occur within seventy-two hours of arraignment. No inmate placed
under High or Close Observation had committed suicide while at the jail prior to Prochnow’s
incarceration. Four jail inmates placed in the general population committed suicide in the year
proceeding Prochnow’s suicide.
All corrections deputies receive suicide prevention training during Corrections Academy.
This includes instruction on identifying warning signs and risk factors for suicide and discussion
of specific jail policies enacted to prevent suicide. Deputies must receive at least one hour of
refresher suicide prevention training each year. All staff members are trained in CPR and first
aid.
2
An officer observes the inmate at least every 15 minutes under High Observation status.
3
An officer observes the inmate at least every 30 minutes under Close Observation status. An inmate who is an
active suicide risk would not be placed under Close Observation because, per Puchovan, “in Close Observation[]
they have every tool they need to kill themselves.” Doc. 66-5, PageID 1497.
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No. 13-2609, Grabow v. Macomb
C
Prochnow arrived at the jail at approximately 2:25 PM on August 13. Deputies Beverly
Puchovan and Amy Franks processed Prochnow at intake. Puchovan and Franks frequently
worked together at intake processing, with Puchovan at the front window as the initial intake
officer and Franks at the computer stations behind the front window as the computer booking
officer. Over time, Franks and Puchovan developed an informal “good to go” system for intake
screening. First, Puchovan patted-down inmates upon arrival to search for contraband. Then,
Puchovan asked the inmate variations of three of the required screening questions: (1) Have you
been to this jail previously?; (2) Have you ever attempted suicide?; and (3) Do you feel like you
want to hurt yourself now? If the inmate answered “no” to the last two questions, Puchovan
informed Franks that the inmate was “good to go” and not a suicide risk. Franks would then
complete the Initial Classification/Temporary Cell Assignment form and assign the inmate to
general population without directly interviewing the inmate. If the inmate answered “yes” to
either of Puchovan’s final two questions, Franks would place the inmate on High Observation,
again without further inquiry. Franks and Puchovan had used this “good to go” system in front
of supervisors, but were never told their conduct was impermissible and were never disciplined.
Upon Prochnow’s arrival at the jail, Puchovan patted-down Prochnow and asked
Prochnow to remove her earrings, necklace, and belly button ring. Puchovan then asked
Prochnow the three screening questions. Prochnow admitted that she had been to the prison
before on multiple occasions, but said that she had never attempted suicide and did not feel like
she wanted to hurt herself at that time. Puchovan told Franks that Prochnow was “good to go,”
and Franks assigned Prochnow to a general population holding cell at 2:34 PM. Franks watched
Puchovan pat-down Prochnow and admitted to recognizing Prochnow from Prochnow’s previous
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No. 13-2609, Grabow v. Macomb
incarcerations at the jail. Franks did not speak with Prochnow at any time between when
Prochnow arrived at the jail and when Franks’s shift ended. Despite this, Franks completed the
Initial Classification/Temporary Cell Assignment form indicating that the answer Prochnow gave
to each of the six suicide risk questions on the form had been “no.”
As the computer booking officer, Franks had access to the jail’s Offendertrak system,
which she could search to view an inmate’s history at the jail. Prochnow’s profile in
Offendertrak included an alert based on her suicide watch status in 2008. Franks claims she did
not see the alert and nothing in the record suggests that Prochnow’s profile would have been
visible to Franks at booking, or that Franks attempted to access Prochnow’s profile. Franks
testified that when a booking officer enters information from an inmate’s Jail Detention Card, the
computer generates the intake form, a property form, and a mugshot; she did not testify that the
computer generates an inmate’s Offendertrak profile or any “alerts” from an inmate’s prior visits.
More to the point, Franks testified that she did not look at records from Prochnow’s previous
visits at Prochnow’s intake, and she denied the existence of any intake procedure where “folks in
booking would . . . go through [an inmate’s] previous jail records to see what had happened to
her the last times that she had been [t]here[.]” Doc. 66-4, PageID 1467.
After Prochnow’s intake, Prochnow met with nurse Michelle Mason. Correctional
Medical Services (“CMS”) employed Mason at the jail. Mason testified that, while performing
her initial screening of the inmate, she would glance at the Initial Classification/Temporary Cell
Assignment form, but would perform an entirely independent assessment of the inmate.
Prochnow told Mason of her prior diagnoses of depression and bipolar disorder, as well as
present feelings of hopelessness due to the arrest. Prochnow also informed Mason of her 2010
suicide attempt. Under prison policies, those answers should have prompted Mason to
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recommend an immediate mental health referral, but instead, Mason recommended that a mental
health evaluation of Prochnow occur within seven days and placed her on a ten-day detox
protocol for suspected recent drug use. Mason did not believe that Prochnow needed to be on
suicide watch, but recommended that prison officials monitor Prochnow for suicide risk and
depression.
After her medical evaluation, prison officials placed Prochnow into a holding cell, where
she vomited and had diarrhea that night.
D
On August 14, 2011, Franks again worked as an intake officer. Franks testified that,
upon arrival, she likely reviewed Prochnow’s paperwork and noticed that Mason had put
Prochnow on detox protocol. Based on this, Franks moved Prochnow to a different holding cell
with beds. Franks spoke with Prochnow at the time, and Prochnow appeared to be in good
spirits, even making jokes about items she had stolen from Wal-Mart. Franks testified that
Prochnow did not show any signs of physical or mental problems on August 14.
Under the detox protocol, CMS staff continued to evaluate Prochnow. They took her
temperature, pulse, and blood pressure at least every twelve hours. Another inmate testified that
Prochnow was distracted, but did not act depressed and did not require medical attention.
E
Franks did not work on August 15, 2011. Officers took Prochnow to a scheduled hearing
that morning at Macomb County Circuit Court. This hearing involved a prior offense where
Prochnow failed to appear for sentencing. At the hearing, the judge imposed a $10,000 bond and
remanded Prochnow to custody for at least two more weeks. Prochnow spoke to a friend about
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her son at the hearing and planned to meet with the friend and a family member during visitation
later that evening.
After the hearing, prison officials returned Prochnow to her cell. An inmate testified that
Prochnow appeared thin and was having problems moving because of pain throughout her body.
At 3 PM that afternoon, Prochnow complained to Mason that she had a rash. Mason promised to
look at the rash after a break. While Mason was on break, Prochnow hanged herself in her cell.
A deputy found Prochnow at approximately 3:22 PM, and prison officials transported her to a
local hospital, where she died two days later.
Macomb County Sheriff Anthony Wickersham testified that the County investigated the
circumstances of Prochnow’s death. The County determined that Franks falsified the intake
form, but neither Franks nor Puchovan was disciplined. Jail Administrator Michelle Sanborn
later testified that Prochnow’s placement in general population likely was inappropriate.
F
Grabow, as personal representative of Prochnow’s estate, brought suit against Franks and
the County.4 Grabow asserted claims under 42 U.S.C. § 1983 against Franks and the County for
deliberate indifference and against the County for failure to train. Grabow also asserted state law
gross negligence claims against Franks.5 Defendants-Appellees Franks and the County moved
for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) and for summary
judgment on all counts. The district court granted defendants-appellees’ motion on all counts.
Grabow, 2013 WL 581544, at *16. On the deliberate indifference claims against Franks, the
district court held that Grabow did demonstrate a genuine issue of material fact on the objective
4
Grabow also brought suit against a variety of other defendants. Grabow voluntarily dismissed the claims against
Sheriff Anthony Wickersham, CMS employees Catherine Stalinski and Kelly Hedke, and Deputy Gregory
Shumacher. Grabow settled the claims against CMS, Michelle Mason, and CMS clinician Stephanie Harmon.
5
Grabow had also asserted state law gross negligence claims against the County. The district court dismissed those
claims, and Grabow does not appeal that dismissal.
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No. 13-2609, Grabow v. Macomb
prong of the analysis but failed to raise any issue of material fact as to Franks’s subjective
knowledge of a substantial risk of Prochnow committing suicide or as to any causal connection
between Franks’s actions and Prochnow’s eventual suicide. Id. at *13–15. For the claims
against the County, the district court held that, because Grabow failed to demonstrate an
underlying constitutional violation by Franks, the claim against the County must be dismissed.
Id. at *15. Finally, the district court dismissed the state law claims against Franks because
Grabow failed to present evidence creating a genuine issue of material fact that Franks was the
proximate cause of Prochnow’s suicide. Id. at *16.
We have jurisdiction over the appeal under 28 U.S.C. § 1291 (2012).
II
The district court granted both the defendants-appellees’ Rule 12(c) motion for judgment
on the pleadings and the motion for summary judgment under Rule 56. Id. at *16. Because the
trial court considered evidence outside of the pleadings in issuing its judgment, we characterize
this appeal as one reviewing the propriety of summary judgment for the defendants-appellees on
this record.
We review the district court’s grant of summary judgment de novo. Longaberger Co. v.
Kolt, 586 F.3d 459, 465 (6th Cir. 2009). We construe the evidence in the light most favorable to
the nonmovant and draw all reasonable inferences in the nonmovant’s favor. Dye v. Office of the
Racing Comm’n, 702 F.3d 286, 294 (6th Cir. 2012). Summary judgment will be granted “if the
movant shows that there is no genuine issue as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). We must determine “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.” First Nat’l Bank & Trust Co. v. Brant (In re
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No. 13-2609, Grabow v. Macomb
Calumet Farm, Inc.), 398 F.3d 555, 558–59 (6th Cir. 2005) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251–52 (1986)). If the nonmovant’s evidence is “merely colorable or is not
significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249–50
(internal citations omitted). The nonmovant “must do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986).
We review the district court’s analysis of state law de novo. Rawe v. Liberty Mut. Fire
Ins. Co., 462 F.3d 521, 526 (6th Cir. 2006) (citing Salve Regina Coll. v. Russell, 499 U.S. 225,
231 (1991)).
III
A. Deliberate Indifference Claims under the Eighth and Fourteenth Amendments
Grabow asserts claims under 42 U.S.C. § 1983 against both Franks and the County for
deliberate indifference to Prochnow’s serious medical needs. In the context of a motion for
summary judgment regarding a claim asserted under § 1983, the plaintiff “must demonstrate a
genuine issue of material fact as to the following two elements: (1) the deprivation of a right
secured by the Constitution or laws of the United States and (2) that the deprivation was caused
by a person acting under color of state law.” Miller v. Calhoun Cnty., 408 F.3d 803, 812 (6th
Cir. 2005) (internal quotation marks omitted).
Pursuant to the Eighth Amendment, “the treatment a prisoner receives in prison and the
conditions under which he is confined are subject to scrutiny.” Helling v. McKinney, 509 U.S.
25, 31 (1993). The Eighth Amendment itself does not apply to pretrial detainees such as
Prochnow, but the Fourteenth Amendment grants analogous rights to adequate medical treatment
to pretrial detainees. City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983). Prison
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No. 13-2609, Grabow v. Macomb
officials must “take reasonable measures to guarantee the safety of the inmates,” Farmer v.
Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526–27 (1984)),
because inmates have a constitutional right to adequate medical care, Estelle v. Gamble, 429 U.S.
97, 103 (1976). Inmates do not have an Eighth Amendment right “to be screened correctly for
suicidal tendencies,” but “prison officials who have been alerted to a prisoner’s serious medical
needs are under an obligation to offer medical care to such a prisoner.” Comstock v. McCrary,
273 F.3d 693, 702 (6th Cir. 2001); see also Perez v. Oakland Cnty., 466 F.3d 416, 423 (6th Cir.
2006) (“[T]he Eighth Amendment prohibits mistreatment only if it is tantamount to punishment,
and thus courts have imposed liability upon prison officials only where they are so deliberately
indifferent to the serious medical needs of prisoners as to unnecessarily and wantonly inflict
pain.” (internal quotation marks omitted)). Prison officials violate an inmate’s Eighth and
Fourteenth Amendment right to adequate medical treatment when: (1) “the deprivation alleged
[is], objectively, sufficiently serious” such that the inmate “is incarcerated under conditions
posing a substantial risk of serious harm”; and (2) the prison official subjectively demonstrates
“deliberate indifference to inmate health or safety.” Farmer, 511 U.S. at 834 (internal quotation
marks and citations omitted).
A “sufficiently serious” medical need requires the plaintiff to show that “[the inmate] is
incarcerated under conditions imposing a substantial risk of serious harm.” Miller, 408 F.3d at
812 (internal citations omitted). An inmate’s “psychological needs may constitute serious
medical needs, especially when they result in suicidal tendencies.” Comstock, 273 F.3d at 703.
Thus, a plaintiff meets the objective component of the Eighth Amendment analysis by
demonstrating that the inmate exhibited suicidal tendencies during his or her detention or that he
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No. 13-2609, Grabow v. Macomb
“posed a strong likelihood of another suicide attempt.” Perez, 466 F.3d at 424; Linden v.
Washtenaw Cnty., 167 F. App’x 410, 416 (6th Cir. 2006).
Deliberate indifference is “a state of mind more blameworthy than negligence.” Farmer,
511 U.S. at 835; Estelle, 429 U.S. at 104, 106; see also Reilly v. Vadlamudi, 680 F.3d 617, 623–
24 (6th Cir. 2012) (“Deliberate indifference is characterized by obduracy or wantonness—it
cannot be predicated on negligence, inadvertence, or good faith error.”); Perez, 566 F.3d at 431
(“A finding of negligence does not satisfy the deliberate indifference standard.”). Deliberate
indifference, however, does not require “acts or omissions for the very purpose of causing harm
or with knowledge that harm will result.” Farmer, 511 U.S. at 835. The Supreme Court has
concluded that “deliberate indifference to a substantial risk of serious harm to a prisoner is the
equivalent of recklessly disregarding that risk.” Id. at 836; see also Galloway v. Anuszkiewicz,
518 F. App’x 330, 333 (6th Cir. 2013) (holding that deliberate indifference is a “stringent
standard of fault,” requiring that the official “disregarded a known or obvious consequence of his
action” (quoting Connick v. Thompson, 131 S. Ct. 1350, 1360 (2011))).
To prove deliberate indifference, the plaintiff must allege facts that show “the official
being sued subjectively perceived facts from which to infer substantial risk to the prisoner, that
he did in fact draw the inference, and that he then disregarded the risk.” Comstock, 273 F.3d at
703. “[P]rison officials who actually knew of a substantial risk to inmate health or safety may be
found free from liability if they responded reasonably to the risk, even if the harm ultimately was
not averted.” Farmer, 511 U.S. at 844; see also Linden, 167 F. App’x at 417. An official’s
knowledge of a sufficient risk “is a question of fact subject to demonstration in the usual ways,
including inference from circumstantial evidence.” Farmer, 511 U.S. at 842.
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No. 13-2609, Grabow v. Macomb
In the context of inmate suicide cases, “the proper inquiry concerning the liability of a
City and its employees in both their official and individual capacities under § 1983 . . . is[]
whether the decedent showed a strong likelihood that [s]he would attempt to take [her] own life
in such a manner that failure to take adequate precautions amounted to a deliberate indifference
to the decedent’s serious medical needs.” Gray v. City of Detroit, 399 F.3d 612, 616 (6th Cir.
2005) (quoting Barber v. City of Salem, 953 F.2d 232, 239–40 (6th Cir. 1992)); see also Jerauld
v. Carl, 405 F. App’x 970, 976 (6th Cir. 2010) (“[T]he central inquiry is whether the defendants
identified [the inmate’s] suicidal tendencies and were deliberately indifferent to them.”); Cooper
v. Cnty. of Washtenaw, 222 F. App’x 459, 470 (6th Cir. 2007) (finding that a claim that an
official “should have known that [an inmate] was suicidal” was “insufficient for a deliberate
indifference claim”).
Under our deliberate indifference jurisprudence, we have held that a plaintiff
demonstrated deliberate indifference sufficient to overcome a motion for summary judgment
when, for example: (1) the prison official who placed the inmate on suicide watch failed to
review medical records and psychological tests administered to an inmate, did not speak to
officers who arranged psychological consults for an inmate or observed the inmate on a daily
basis, did not speak with psychologists who previously met with an inmate, and only asked the
inmate a few cursory questions before removing the inmate from close observation, Comstock,
273 F.3d at 707–10; (2) a prison official had actual knowledge of an inmate’s past suicide
attempts, knew that the inmate’s suicidal tendencies were provoked by his kidney conditions,
and ignored the inmate’s crying, complaints of kidney pain, and other suicidal gestures on the
night of his death, Schultz v. Sillman, 148 F. App’x 396, 401–03 (6th Cir. 2005); and (3) a prison
official moved an inmate from suicide watch even though the official knew the inmate threatened
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and attempted suicide on several occasions within the same month in the jail and had previously
been placed on behavior and suicide watches during multiple prior incarcerations at the same
jail, Perez, 466 F.3d at 424–26.
On the other hand, we have held that the plaintiff failed to overcome a motion for
summary judgment when the plaintiff only demonstrated, for example that (1) the inmate yelled,
destroyed items in his cell, had chest pain, and banged on his cell, but no single prison official
observed all of these actions, Gray, 399 F.3d at 614–16; and (2) the inmate’s behavior prompted
the prison psychologist to issue a suicide precautions blanket and order observations every
fifteen minutes, but the psychologist failed to take the additional precaution of directly warning
the jail staff that the inmate might be suicidal, Galloway, 518 F. App’x at 331–35.
Thus, the plaintiff must demonstrate either subjective knowledge, directly or indirectly,
or that the official “merely refused to verify underlying facts that he strongly suspected to be
true” to overcome a motion for summary judgment on a deliberate indifference claim.
Comstock, 273 F.3d at 703 (quoting Farmer, 511 U.S. at 843 n.8).
B. Deliberate Indifference Claims against Franks
Grabow argues that she need only demonstrate that Franks should have perceived facts
sufficient to recognize Prochnow’s pronounced suicidal tendencies. Under Grabow’s proposed
approach, we should consider the following circumstantial evidence to be highly relevant: Franks
recognized Prochnow from their prior interactions, Prochnow previously had been under suicide
watch at the jail, Prochnow falsified the Initial Classification/Temporary Cell Assignment form,
and the alert in the Offendertrak system noted that Prochnow was once considered a suicide risk.
Grabow proposes that, based on this evidence, there is sufficient circumstantial evidence that
Franks inferred a substantial risk to Prochnow’s safety, Franks did in fact draw this inference,
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and she disregarded the risk. See Comstock, 273 F.3d at 703. At a minimum, Grabow asserts
that Franks “refused to verify” facts about Prochnow which Franks had reason to suspect were
true. See id.
The district court disagreed with Grabow’s arguments, finding that Grabow failed to
create a genuine issue of material fact regarding Franks’s subjective knowledge of Prochnow’s
serious medical condition sufficient to show deliberate indifference. Grabow, 2013 WL 581544,
at *13–15. Franks was not working at the jail in 2008 when Prochnow had been placed on
suicide watch while there. Prochnow also spent less than two days under suicide watch in 2008,
spending the subsequent month of her incarceration in general population without incident.
Prochnow had also been incarcerated on three subsequent occasions, again all without incident.
The district court found that the “only thing Franks knew was that Prochnow was arrested and
brought to the jail on multiple occasions in the past, and that she was currently in jail for
domestic violence.” Id. at *14. The district court found this an insufficient basis upon which to
find that Franks had subjective knowledge, or even a strong suspicion, of Prochnow’s suicidal
tendencies. The district court also found that, even assuming arguendo that Franks subjectively
perceived sufficient facts regarding Prochnow’s past suicidal tendencies, Grabow presented no
evidence that Franks drew any inference regarding Prochnow’s current medical needs or
disregarded an obvious inference about those needs. Though Grabow claimed that Franks’s
failure to conduct a face-to-face interview was sufficient circumstantial evidence of her
knowledge, the district court concluded that Franks’s failure to conduct the interview was
remedied by Mason’s later medical evaluation, where Mason found that Franks was not a suicide
risk. Finally, the district court found that undisputed evidence demonstrated that, even if Franks
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had interviewed Prochnow, it was unlikely she would have placed Prochnow in a High
Observation cell given the statements Prochnow made to Puchovan and Mason.
We agree with the district court’s analysis. The extent of Franks’s interaction with
Prochnow between August 13 and August 15, 2011, consisted of: (1) Franks’s observing
Puchovan’s search of Prochnow; (2) Puchovan’s telling Franks that Prochnow was “good to go;”
(3) Franks’s moving Prochnow to a holding cell with a bed on August 14; and (4) Franks and
Prochnow’s joking about Prochnow allegedly stealing items from a Wal-Mart. Franks did not
work on August 15, the day that Prochnow outwardly expressed a depressed condition and
committed suicide. Thus, all Franks knew regarding Prochnow’s then-current incarceration was
that Prochnow was arrested for domestic abuse and that Prochnow was undergoing a detox
protocol. This is insufficient to create a genuine issue of material fact regarding Franks’s
subjective knowledge of Prochnow’s suicidal tendencies. Though Franks clearly failed to make
inquiries required by her job duties, there is no evidence that she had any reason to suspect that
those inquiries would reveal suicidal tendencies.
There is no doubt Franks was negligent. Grabow must allege more, however, to allow us
to impute sufficient knowledge to Franks. Deliberate indifference requires a level of culpability
higher than negligence, one that more closely approximates reckless disregard for a known risk.
Farmer, 511 U.S. at 836; Reilly, 680 F.3d at 623–24; Perez, 566 F.3d at 431. The prison
regulations did not require that Puchovan ask all six screening questions during pat-down or that
only Franks could perform the face-to-face interview. Also, the regulations did not appear to
require that the computer booking officer search the Offendertrak system for alerts. Thus, while
Franks was negligent during the intake of Prochnow, Franks did not recklessly disregard or
intentionally avoid known risks. Franks and Puchovan together attempted to determine if
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Prochnow would be a suicide risk based on the three screening questions Puchovan asked
Prochnow. As the Supreme Court has explained, “an official’s failure to alleviate a significant
risk that he should have perceived but did not, while no cause for commendation, cannot under
our cases be condemned as the infliction of punishment.” Farmer, 511 U.S. at 838.
Even if we impute knowledge of the Offendertrak alert to Franks, it is not clear this
knowledge would establish that Franks observed facts sufficient to infer a substantial risk. If
Franks learned of Prochnow’s 2008 placement on suicide watch status from the Offendertrak
system, Franks would also have known that Prochnow remained on suicide watch for less than
two days before spending almost a month in general population. Franks would also have learned
that Prochnow had been incarcerated three subsequent times, all in general population and all
without incident. Franks knew that Prochnow told Puchovan that she had never attempted
suicide and did not have any present intent to harm herself. Moreover, Franks interacted with
Prochnow on April 14, and Prochnow appeared upbeat, which is inconsistent with an inference
of a substantial risk of suicide. Franks did not see Prochnow on April 15, and, thus, could not
have observed Prochnow after her hearing. Franks simply assigned Prochnow to a general
population holding cell, as had been done during Prochnow’s three prior incarcerations. The
next day, Franks checked Prochnow’s file, recognized that Mason assigned Prochnow to a detox
protocol, and moved Prochnow to a holding cell with a bed to make her more comfortable.
Nothing about Franks’s actions indicates subjective knowledge or a deliberate disregard of a
known risk to Prochnow’s safety.
We conclude that Grabow failed to establish that Prochnow “showed a strong likelihood
that [she] would attempt to take [her] own life in such a manner that failure to take adequate
precautions amounted to a deliberate indifference to [her] serious medical needs.” Gray,
17
No. 13-2609, Grabow v. Macomb
399 F.3d at 616. Although Franks acted negligently in utilizing the “good to go” policy in lieu of
conducting a face-to-face interview, Grabow has failed to present facts which would show that
Franks had the necessary subjective knowledge to support a deliberate indifference claim under
the Eighth and Fourteenth Amendments.
Because we find that Grabow has failed to demonstrate a genuine issue of material fact as
to the subjective prong of the Eighth and Fourteenth Amendments analysis, we decline to
address the district court’s discussion of the objective prong of this analysis, its causation
analysis, or its qualified immunity analysis. We affirm the district court’s grant of summary
judgment on Grabow’s § 1983 claim against Franks.
IV
Grabow also asserted § 1983 claims against Macomb County, arguing that the County
itself was deliberately indifferent and failed to adequately train its staff. Under § 1983,
municipalities are responsible only for “their own illegal acts.” Pembaur v. Cincinnati, 475 U.S.
469, 479 (1986) (emphasis in original). Thus, a municipality cannot be held liable pursuant to a
theory of respondeat superior under § 1983. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691
(1978). A municipality only can be directly liable under § 1983 when a policy or custom of the
municipality causes a constitutional violation by one of its employees. Id. at 694; Gray, 399
F.3d at 617. For municipal liability, there must be an underlying unconstitutional act due to a
policy or custom of the municipality, even if an officer in his or her individual capacity can avoid
liability through qualified immunity. Wilson v. Morgan, 477 F.3d 326, 340 (6th Cir. 2007);
Gray, 399 F.3d at 617 (“When an officer violates a plaintiff’s rights that are not ‘clearly
established,’ but a city’s policy was the ‘moving force’ behind the constitutional violation, the
municipality may be liable even though the individual officer is immune.”); Gregory v. Shelby
18
No. 13-2609, Grabow v. Macomb
Cnty., 220 F.3d 433, 441 (6th Cir. 2000) (“For liability to attach, there must be execution of a
government’s policy or custom which results in a constitutional tort.”). “A municipality may be
liable under § 1983 where the risks from its decision not to train its officers were ‘so obvious’ as
to constitute deliberate indifference to the rights of its citizens. As applied to suicide claims, the
case law imposes a duty on the part of municipalities to recognize, or at least not ignore, obvious
risks of suicide that are foreseeable.” Gray, 399 F.3d at 618. But see id. (“Very few cases have
upheld municipality liability for the suicide of a pre-trial detainee.”).
We affirm the grant of summary judgment on Grabow’s municipal liability claim against
Macomb County. As discussed in Part III, supra, Grabow failed to present facts upon which a
reasonable juror could conclude that Franks violated any of Prochnow’s Eighth and Fourteenth
Amendment rights to adequate medical care. Absent an underlying constitutional violation,
Grabow’s claim against the county under § 1983 must also fail. Wilson, 477 F.3d at 340 (“There
can be no Monell municipal liability under § 1983 unless there is an underlying unconstitutional
act.”).
V
Finally, Grabow asserted claims against Franks for gross negligence under Michigan state
law. In response to Grabow’s claims, Franks asserted immunity under Mich. Comp. Law
§ 691.1407, which grants immunity from tort liability to government employees if the following
elements are satisfied:
(a) The officer, employee, member, or volunteer is acting or reasonably believes
he or she is acting within the scope of his or her authority;
(b) The governmental agency is engaged in the exercise or discharge of a
governmental function;
(c) The officer’s, employee’s, member’s, or volunteer’s conduct does not amount
to gross negligence that is the proximate cause of the injury or damage.
19
No. 13-2609, Grabow v. Macomb
The parties do not dispute that elements (a) and (b) apply. The only question is whether Franks’s
conduct amounted to gross negligence that was the proximate cause of Prochnow’s death.
Section 691.1407(8)(a) defines “gross negligence” as “conduct so reckless as to
demonstrate a substantial lack of concern for whether an injury results.” The Michigan Supreme
Court has held that an employee’s conduct is “the proximate cause” of an injury only when it is
“the one most immediate, efficient, and direct cause preceding an injury.” Robinson v. City of
Detroit, 613 N.W.2d 307, 317 (Mich. 2000); see also Jasinski v. Tyler, 729 F.3d 531, 544 (6th
Cir. 2013) (noting that the “proximate-cause inquiry under the [Michigan statute] is different
from proximate-cause analysis in other contexts because of the use of the definite article
‘the[.]’”). The Michigan legislature intended to limit employee liability under § 691.1407 to
situations where the employee was “substantially more than negligent.” Maiden v. Rozwood,
597 N.W.2d 817, 824 (Mich. 1999). In Kruger v. White Lake Township, the Michigan Court of
Appeals assumed without deciding that officers were grossly negligent when they arrested
Kruger and handcuffed her to a ballet bar in the booking room because all holding cells were
full. 648 N.W.2d 660, 663 (Mich. App. 2002). Kruger eventually escaped, but was struck and
killed by a vehicle during her escape. Id. at 662. The court found that, even if the officers were
grossly negligent, the proximate cause of Kruger’s death was her own action of running into
traffic. Id. at 663.
Based on this provision, the district court found that Franks was not the proximate cause
of Prochnow’s death, and we agree. As discussed in Part III, supra, Franks was clearly negligent
in failing to perform the required in-person interview in order to complete the Initial
Classification/Temporary Cell Assignment form. Even if we assume that Franks’s actions
constituted “substantially more than negligence” and that her acts were a cause of Prochnow’s
20
No. 13-2609, Grabow v. Macomb
suicide—assumptions we make without deciding—it is clear they were not the one, immediate
and direct cause of Prochnow’s death. Prochnow did not verbalize any intent to commit suicide
to the arresting officer, told Puchovan that she did not currently intend to harm herself, and
assured Mason that she did not currently intend to harm herself. Two days later, Prochnow
caused her own death by hanging. As in Kruger, it was Prochnow’s own actions that were the
proximate cause of her suicide.6 Thus, while Franks’s negligent acts might be characterized as a
part of the causal chain that ended in Prochnow’s suicide, Grabow has failed to create a genuine
issue of material fact that Franks was the proximate cause of Prochnow’s suicide as that term is
defined by Michigan law.
VI
For the foregoing reasons, we affirm the district court’s grant of summary judgment for
defendants-appellees Franks and the County of Macomb.
6
There were no allegations that Prochnow was so mentally incompetent as to be incapable of making the decision to
end her own life, and there is nothing in the record that could support such an allegation.
21
No. 13-2609, Grabow v. Macomb
BERNICE BOUIE DONALD, Circuit Judge, concurring. I agree with
the panel’s analysis and outcome. I write separately to note the troubling statistics
surrounding suicides in the Macomb County Jail.
The Macomb County Jail has a capacity of 1,238 inmates and processes about
19,000 inmates annually.7 Macomb County Sheriff’s Office Annual Report 11
(2012). In the year surrounding Prochnow’s August 2011 suicide, five Macomb
County Jail inmates (including Prochnow) committed suicide. Only six percent of
U.S. jails reported two or more deaths by any cause in 2011; eighty-one percent of
jails reported no deaths. U.S. Dep’t of Justice, Bureau of Justice Statistics, NCJ
242186, Mortality Rates in Local Jails and State Prisons, 2000–2011 1. In
Michigan, only sixteen percent of jails reported one or more inmate deaths by any
cause. Id. at 18. Macomb County Jail’s five suicides alone accounted for nearly
twenty percent of Michigan’s twenty-four total reported jail inmate deaths by any
cause in 2011, id. at 15, despite the fact that the Jail processed only about eight
percent of the state’s total annual jail inmates and held only seven percent of the
state’s jail inmates at any one time, see supra n.1. This case is not the first time
that this Court has taken notice of Macomb County Jail’s high suicide rate. In
Crocker v. County of Macomb, this Court noted that Crocker’s June 2001 suicide
was also the fifth suicide at the Jail in less than one year. 119 F. App’x 718, 721
(6th Cir. 2005).
7
On average, the total Michigan jail population per day in 2011 was 16,541. Mortality Rates in
Local Jails and State Prisons 17. The total annual Michigan jail population for 2010 was
219,266. JPIS Report from Michigan Department of Corrections, Office of Community
Corrections 84 (2010).
22
No. 13-2609, Grabow v. Macomb
Macomb County Jail’s disturbing suicide rate is a microcosm of the larger
jail-suicide problem, which accounted for thirty-five percent of all jail deaths in the
U.S. in 2011. Id. at 7. Our decision cites no less than nine prisoner-suicide cases,
most of which originate in Michigan. See Galloway v. Anuszkiewicz, 518 F. App’x
330 (6th Cir. 2013); Jerauld v. Carl, 405 F. App’x 970 (6th Cir. 2010); Cooper v.
Cnty. of Washtenaw, 222 F. App’x 459, 470 (6th Cir. 2007); Perez v. Oakland Cnty.,
466 F.3d 416 (6th Cir. 2006); Linden v. Washtenaw Cnty., 167 F. App’x 410 (6th Cir.
2006); Schultz v. Sillman, 148 F. App’x 396, 401–03 (6th Cir. 2005); Gray v. City of
Detroit, 399 F.3d 612 (6th Cir. 2005); Comstock v. McCrary, 273 F.3d 693 (6th Cir.
2001); Barber v. City of Salem, 953 F.2d 232 (6th Cir. 1992). Our decision could
have cited two more cases, both of which occurred prior to Prochnow’s suicide,
where Macomb County itself was before this Court or district courts in this Circuit
as a defendant in an inmate-suicide action. See Crocker, 119 F. App’x 718; House v.
Cnty. of Macomb, 303 F. Supp. 2d 850 (E.D. Mich. 2004).
Most of these cases, like the one before us, deal with the suicide of inmates
who had a known history of mental illness and suicidal tendencies. And in those
cases, like this one, this Court reached the conclusion, first put forward in Danese v.
Asman, 875 F.2d 1239 (6th Cir. 1989), that there is no recognized constitutional
right to be properly screened for suicide risk. Thus, no official or municipality can
be held liable under § 1983 for inmate suicides where there has been improper
screening or no screening. See Barber, 953 F.3d at 237–38.
23
No. 13-2609, Grabow v. Macomb
And yet the suicides keep happening. How many times should this question
come before this Court before the need for adequate suicide precautions for
mentally-ill inmates becomes “clearly established law” for which officials can be
held accountable? Id. at 236. How many times should Macomb County come before
this Court before “the need for better training [becomes] so obvious” that it should
be held liable? Id. While current law offers no refuge for Grabow, the time may
come for this Court to rethink what constitutional protections are available to
mentally ill, potentially suicidal inmates and what sort of liability may be imposed
on defendants like Macomb County, where these suicides continue to occur at an
alarming rate.
24