Appendix — Perez v. Oakland County, Michigan, 128 S. Ct. 166 (2007) (No. 06-1660)

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APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

FILED OCTOBER 18, 2006

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 05-1583

ARIEL PEREZ, SR., Personal Representative of the

ESTATE OF ARIEL E. PEREZ, JR..,

Plaintiff-Appellant,

v,

OAKLAND COUNTY; OAKLAND COUNTY SHERIFF;

MICHAEL J. BOUCHARD, Oakland County Sheriff; JOHN

DOE, Unknown Oakland County Sheriff's Department

Deputies; ROBERTA RICE; MICHAEL MONROE, TERRY

MONTGOMERY, and JOHN JORGANSON, Deputies;

SARATH HEMACHANDRA, DR., Jointly and Severally,

Defendants-Appellees.

Argued: April 20, 2006

Decided and Filed: October 18, 2006

Before: MOORE, GRIFFIN, and CUDAHY,

Circuit Judges.*

* The Honorable Richard D. Cudahy, Circuit Judge of the United

States Court of Appeals for the Seventh Circuit, sitting by designation.

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CUDAHY, J., delivered the opinion of the court.

GRIFFIN, J. (pp. 433-36), delivered a separate opinion

concurring in the result and in all portions of the majority

opinion except Section II.A.1. MOORE, J. (pp. 436-38),

delivered a separate opinion concurring in part and dissenting

in part.

OPINION

RICHARD D. CUDAHY, Circuit Judge. This is a tragic

case. In November 2002, eighteen-year-old Ariel Perez, Jr.

(Perez) hung himself from a bedsheet tied to a vent in his

single cell in the Oakland County Jail in Pontiac, Michigan,

resulting in his death three days later. Perez’s father,

plaintiff-appellant Ariel Perez, Sr. (Perez Sr.), the personal

representative of Perez’s estate, brought a 42 U.S.C. § 1983

action in the district court against the Oakland County,

Michigan, caseworker/counselor at the jail Roberta Rice, the

Oakland County Sheriff and several of his deputies and jail

psychiatrist Sarath Hemachandra, M.D. Perez Sr. argues that

the defendants violated Perez’s Eighth Amendment right to

be free from cruel and unusual punishment by failing to

provide appropriate mental health treatment and suicide

monitoring.' The defendants filed for summary judgment,

1. Perez did not discuss his claims against the Oakland County

Sheriff and several of his deputies in this appeal. Thus, we consider

those claims waived. United States v. Isaiah, 434 F.3d 513, 522 (6th

Cir.2006). Additionally, we will not discuss the claims concerning

Dr. Sarath Hemachandra, since both parties stipulated to a motion

to dismiss appellee Dr. Hemachandra from this lawsuit based on a

settlement agreement hetween the two parties. We granted this motion

on June 27, 2000.

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and the district court issued a memorandum opinion and order

granting summary judgment on all of the federal claims and

declining supplemental jurisdiction on all state-law claims.

Perez Sr. timely appealed.

I, BACKGROUND

Perez's Prior Terms of Incarceration at Oakland County Jail

Perez was born in 1983. He did not complete high school

and was diagnosed as having Attention Deficit Hyperactivity

Disorder (ADHD) and as being learning disabled when he

was six years old. Perez began serving sentences in the

Oakland County Jail at a fairly young age. In February of

2001, when he was 17 years old, he pleaded guilty to two |

charges of felony larceny from a building and was given a

six-month sentence on May 11, 2001. It was initially

determined that due to Perez’s age he should serve his time

in a boot camp. However, after he reported to a boot camp

counselor that he was experiencing hallucinations and hearing

voices telling him to quit or escape, Perez was transferred to

the Oakland County Jail in late June, 2001. When Perez

arrived at the jail, he was met by defendant Roberta Rice, an

inmate caseworker. Perez told Rice that he had been hearing

voices for the past two years telling him to hurt himself, but

he did not listen to the voices. He also stated that he had

tried to hang himself at the ages of 14 and 17.

Rice determined that Perez should get a psychiatric

evaluation, which was conducted by Dr. Sarath Hemachandra

on July 5, 2001. Dr. Hemachandra noted Perez’s history of

hearing voices and considering suicide, his learning disability,

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his ADHD diagnosis and the fact that Perez had taken Ritalin

as a child. Dr. Hemachandra diagnosed Perez with

schizoaffective disorder, a personality disorder and a learning

disorder. He prescribed psychiatric medication, individual

counseling and substance abuse counseling. He also noted

that Perez should be “watched closely.”

Perez was housed with a roommate and placed on a 30-

minute “active behavior watch” (ABW), based on the

assessments of Rice and Hemachandra. On July 10, 2001,

Rice met with Perez because he was refusing to take his

Zyprexa medication. Rice decided to discontinue the 30-

minute ABW following this meeting.

On August 20, 2001, Perez was in a crisis state, and jail

staff determined that he was suicidal. They placed him in an

attorney booth until he could be seen by Rice. Rice met with

Perez, and he indicated that he was considering hurting

himself by cutting his wrist with a razor or hanging himself

with a sheet. He said “I feel like I’m going crazy.” Rice told

Perez that she wanted him moved to the front holding tanks

so that he could be closely supervised. He stated that he would

commit suicide if he was placed in such a holding tank, but

the move was made, and he was placed on an “active suicide

watch” (ASW).

Rice mei with Perez the next day, August 21, 2001. Perez

stated that he felt better and wanted to be moved out of the

holding cell. He indicated that he had no suicidal thoughts

or intentions, and he said he would not cause trouble if moved

to the main jail. Rice downgraded Perez’s status from ASW

to ABW. She thought he seemed stable, and she approved

his reassignment to the main jail.

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Rice again met with Perez on September 19, 2001, after

Perez he been placed in an observation cell as a result of a

fight he had had with another inmate. Perez stated that he

was not suicidal, that he had been taking his medications

and that he had been doing fine prior to the fight. Rice brought

up the idea of Perez’s being placed in a single cell due to his

trouble getting along with other inmates, and Perez agreed

to this. Rice also determined that Perez did not appear suicidal

and no watch was necessary. Jail officials asked Rice if Perez

could be placed in an 1 1-man cell, but she said this placement

was inappropriate in light of Perez’s age, mental health

treatment and learning disability. Perez continued to be

incarcerated without incident until his release on October 9,

2001.

Perez was again incarcerated at the Oakland County Jail

for two days in late April, 2002, after an altercation with his

‘father. While Perez was at the jail, Rice responded to a phone

call from Perez’s sister, Jennifer Perez. Jennifer Perez told

Rice that Perez had not been compliant with his mental health

treatment, that he had been hearing voices telling him that

he was no good and that he should kill himself and that her

father wanted Perez to get treatment. Rice gave Jennifer Perez

the name of the medications Perez had been given while he

was incarcerated and the phone numbers of Collaborative

Solutions and Mercy Network. Perez was again incarcerated

at the Oakland County Jail in late August 2002, but the

reasons for this incarceration are not clear from the record.

Between his April and August incarcerations, Perez

received treatment at St. Joseph Mercy Hospital and the North

Oakland Medical Center (NOMC) for depression and suicidal

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thoughts. A petition for hospitalization was prepared on

Perez’s behalf, a doctor diagnosed him as suffering from

schizophrenia and he was given antipsychotic medication.

Additionally, he was placed in a psychiatric ward at NOMC

from mid-May through early June. In early October 2002,

Perez went to the NOMC emergency room and stated that he

was hearing voices telling him to hurt his sister and break

into a restaurant. Perez was again diagnosed with

schizophrenia and another petition for hospitalization was

prepared on his behalf.

Incarceration Period During Which Perez Committed Suicide

On October 24, 2002, Perez returned to the Oakland

County Jail after violating his probation. Early in the morning

on October 25, 2002, Perez told a guard that he was hearing

voices. He asked to speak to a counselor immediately but

said he did not feel suicidal. A half hour to an hour later,

Perez attempted suicide by tying his pants around his neck

and the bars of his holding cell. A deputy placed Perez on

ASW status, and he was placed in an observation cell. Rice

came to see him soon after, and she continued the suicide

watch. Perez was also seen by Dr. Hemachandra on an

emergency basis that day. Perez told Dr. Hemachandra that

he nad attempted suicide in order to see a counselor and

obtain medication (Lithium and Zypreza, which he had been

taking prior to his incarceration) sooner. Dr. Hemachandra

prescribed these medications and recommended that Perez

be kept under close supervision.

Perez and Rice met on October 28, 2002, and Perez stated

that he felt better since receiving the medicaiion and that he

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did not fee! suicidal. He told Rice that he had not wanted to

kill himself when he attempted suicide, but instead, he had

made the attempt because he wanted to be taken out of the

holding cell and given medication. Rice discontinued Perez’s

ASW status and approved his transfer back to the general

prison population, finding that he was cooperative and his

thought process appeared to be within the normal limits. He

was moved to a 10-man cell on October 30, 2002.

On November 4, 2002, Rice and Perez met again,

following a report-she received that Perez was refusing to

take his medication. Perez told Rice he thought he did not

need the medication and that he had lied about his symptoms

in the past in order to get the medication hoping that it would

help him cope with his term in jail. He said he had been

depressed in the past but that he had become a Christian and

had a purpose in life. He further stated that he did not feel

suicidal and that he wanted a cell assignment that would allow

him to work on his General Educational Development Test

(GED). Rice noted that Perez “appears manipulative in order

to get his way,” that he did not appear suicidal and that he

“appears stable at this time.” She determined no watch was

needed.

On November 8, 2002, Perez was evaluated again by

Dr. Hemachandra. Dr. Hemachandra’s report from this

session documented Perez’s history of ADHD, cannabis

dependence, suicide attempts, paranoia and mood swings.

Dr. Hemachandra asked Perez if he had been hearing voices,

and Perez said that he had not. He said he never had and that

he lied about hearing voices in order to get medication to

help his insomnia and depression. Dr. Hemachandra again

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diagnosed Perez with schizoaffective disorder, cannabis

dependence, a learning disorder and a personality disorder.

He did not, however, find evidence of suicidal intent. Dr.

Hemachandra recommended Perez be given individual

counseling and substance abuse counseling. He also

prescribed Zyprexa and Lithium for Perez and explained to

Perez that it was important for him to take these medications.

On November 18, 2002, Perez met with Rice after

Deputy John Jorganson requested Perez be approved for

single cell housing because Perez had been stealing from

other inmates in his 10-man cell. Perez admitted to Rice

during their meeting that he had been stealing from the other

inmates. Perez also told Rice that he was not taking his

psychiatric medication since he believed he did not need it.

Rice asked Perez why he had not discussed this decision with

Dr. Hemachandra, and Perez responded by telling Rice that

his cellmates encouraged him to continue getting the

medication so that he could sell it to them. Perez stated he

did not feel suicidal, he had frequent contact with his family

and he was not feeling depressed or anxious. Rice found that

Perez’s “insight appears limited” and “judgment appears

poor” but that he did not appear at risk of suicide, was stable

and could be housed in a single cell without supervision.

The next day, November 19, 2002, Rice reviewed Perez’s

case with Dr. Hemachandra because of Perez’s refusal to take

his medication. Consistent with the standard protocol

designec to minimize unused medication in the jail

environment, Dr. Hemachandra discontinued Perez’s

medications but moved Perez’s next scheduled psychiatric

appointment up from November 29 to November 26.

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On November 22, 2002, in the evening, Deputy Michael

Monroe was working in the C-Block area where Perez was

housed. He was relieved that evening by Deputy Terry

Montgomery. Clock rounds of Perez’s cell were performed

at 5:47 pm and 7:03 pm, a gap of 76 minutes. Perez was not

on any kind of special watch. According to other inmates,

Perez placed a sheet over his cell during this period, which

blocked the view into the cell. After their 7:03 pm rounds,

jail personnel discovered that Perez had hung himself with a

bed sheet that had been tied to the vent of his cell. He died

on November 26, 2002 from injuries sustained as a result of

this action.

District Court Action

On January 14, 2003, Perez Sr. brought an action with

respect to these events in the district court. The claim initially

involved only Oakland County and its jail personnel, but Dr.

Sarath Hemachandra and Roberta Rice were later added as

defendants. Perez Sr. argued that the defendants violated

Perez’s Eighth Amendment right to be free from cruel and

unusual punishment. He also filed state law claims with the

district court.

Following discovery, all defendants filed motions for

summary judgment. After Perez Sr. filed a brief in opposition

to these motions, the district court issued a Memorandum

Opinion granting summary judgment for the defendants and

declining to exercise supplemental jurisdiction over the

remaining state law claims. Perez Sr. filed a timely appeal

with this court in April 2005.

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II. DISCUSSION

This court reviews a district court’s decision to grant

summary judgment de novo. Farhat v. Jopke, 370 F.3d 580,

587 (6th Cir.2004); Stemler v. City of Florence, 126 F.3d

856, 866 (6th Cir.1997). Summary judgment is appropriate

when “the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any,

show that there is not a genuine issue as to any material fact

and that the moving party is entitled to a judgment as a matter

of law.” Fed.R.Civ.P. 56(c). In deciding the motion, a court

must view the evidence and draw all reasonable inferences

in favor of the nonmoving party. See Matsushita Elec. Indus.

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

89 L.Ed.2d 538 (1986). To withstand summary judgment,

the non-movant must show sufficient evidence to create a

genuine issue of material fact. See Klepper v. First Am. Bank,

916 F.2d 337, 342 (6th Cir.1990).

A. Claims Against Roberta Rice

Perez Sr. argues that the district court was correct when

it found that there was a genuine issue of material fact as to

whether Rice acted with deliberate indifference in violation

of Perez’s Eighth Amendment Rights, but the court erred

when it found that Rice was nonetheless entitled to qualified

immunity, and thus her motion for summary judgment should

be granted.

1. Eighth Amendment Claim

Section 1983 prohibits any “person who, under color of

any statute, ordinance, regulation, custom, or usage, of any

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State” from depriving any U.S. citizen “of any rights,

privileges, or immunities secured by the constitution and

laws.” Perez Sr. argues that Perez’s Eighth Amendment right

under the United States Constitution was violated. The Eighth

Amendment prohibits the infliction of cruel and unusual

punishment. U.S. Const. amend. VIII.

As applied to prisoners, this constitutional guarantee

encompasses a right to medical care for serious medical

needs, including psychological needs. See Estelle v. Gamble,

429 U.S. 97, 103-04, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976).

However, the 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.”

Horn v. Madison County Fiscal Court, 22 F.3d 653, 660 (6th

Cir.1994). A serious medical need is “one that has been

diagnosed by a physician as mandating treatment or one that

is so obvious that even a lay person would easily recognize

the necessity for a doctor’s attention.” Blackmore v.

Kalamazoo County, 390 F.3d 890, 897 (6th Cir.2004) (citing

Gaudreault v. Municipality of Salem, 923 F.2d 203, 208 (1st

Cir.1990)), reh’g en banc denied. Negligence or medical

malpractice alone cannot sustain an Eighth Amendment

claim, absent a showing of deliberate indifference. Estelle,

429 U.S. at 105-06, 97 S.Ct. 285.

“Deliberate indifference” as analyzed by this court has

both an objective and a subjective component. See Comstock

v. McCrary, 273 F.3d 693, 702 (6th Cir.2001). In cases

involving an inmate’s medical needs, the need “must be,

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objectively, ‘sufficiently serious.’ ” Farmer v. Brennan, 511

U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (citing

Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115

L.Ed.2d 271 (1991)). In considering the subjective

component, this circuit has emphasized that a plaintiff must

produce evidence showing “that 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 that risk.” Comstock, 273 F.3d

at 703. The subjective component requires that an official

who actually knew of the serious medical need possessed “a

sufficiently culpable state of mind in denying medical care.”

Miller v. Calhoun County, 408 F.3d 803, 813 (6th Cir.2005)

(quoting Farmer, 511 U.S. at 834, 114 S.Ct. 1970).

“Deliberate indifference requires a degree of culpability

greater than mere negligence, but less than ‘acts or omissions

for the very purpose of causing harm or with knowledge that

harm will result.’ ” /d. at 813, 114 S.Ct. 1970 (quoting

Farmer, 511 U.S. at 835, 114 S.Ct. 1970). The Supreme Court

has also said, “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, 114

S.Ct. 1970.

This court has held that “deliberate indifference may be

established by a showing of grossly inadequate care as well

as [by] a decision to take an easier but less efficacious course

of treatment.” Terrance v. Northville Reg’l Psychiatric Hosp.,

286 F.3d 834, 843 (6th Cir.2002) (quoting McElligott v. Foley,

182 F.3d 1248, 1255 (11th Cir.1999)). However, the 11th

Circuit cases upon which Terrance was based note that a

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showing of “grossly inadequate care” satisfies only the

objective prong of the “deliberate indifference” standard.

Plaintiff must still present evidence of a prison official’s

subjective awareness of, and disregard for, a prisoner’s

serious medical needs. See Campbell v. Sikes, 169 F.3d 1353,

1364-65 & n. 9 (11th Cir.1999). Additionally, in an en banc

decision regarding a prison suicide, this circuit emphasized

that the plaintiff had to Show that the defendant prison

psychiatrists must have known of, and yet disregarded, an

excessive risk to inmate health or safety. See Williams v.

Mehra, 186 F.3d 685, 692 (6th Cir.1999) (en banc).

Here, Perez Sr. argues that Rice violated Perez’s

Constitutional rights by failing to provide appropriate mental

health treatment or monitoring while he was being held in

the Oakland County Jail in the fall of 2002. The district court

found, and we ultimately agree, that Perez Sr. showed a

genuine issue of material fact as to whether Rice’s conduct

satisfied both the objective and subjective components of

the deliberate indifference standard. We also agree with the

district court, however, that this is a very close, and thus

difficult, case.

Perez Sr. had to show that Rice was aware of a serious

medical need (his mental illness as manifested in suicide risk)

and that she acted with deliberate indifference to that need.

A genuine issue of fact regarding the objective component

of the standard can be met by a showing that Perez posed a

strong likelihood of another suicide attempt. See Gray v. City

of Detroit, 399 F.3d 612, 616 (6th Cir.2005); Barber v. City

of Salem, 953 F.2d 232, 239-40 (6th Cir.1992). Perez had

threatened and attempted suicide on several occasions in the

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past and had been placed on behavior and suicide watches

during his periods of incarceration at the Oakland County

Jail. Perez attempted suicide in his cell in October 2002, only

a month or so before his successful suicide in November

2002. This October attempt prompted Rice to place Perez in

an observation cell under an active suicide watch and Dr.

Hemachandra to recommend that Perez be kept under close

observation. Additionally, Dr. Hemachandra testified that past

threats or attempts at suicide are considered when

determining whether an individual is suicidal, though

someone who has previously considered or attempted suicide

will not necessarily do so again. Dr. Hemachandra also

testified that a patient who fails to take prescribed

psychotropic medication posed a risk of becoming depressed,

of inability to control moods and of becoming ultimately

suicidal. Perez v. Oakland County, 380 F.Supp.2d 830, 841

(E.D.Mich.2005). Perez also presented expert testimony

stating that individuals who suffer from schizophrenia and

have made past suicide attempts are more likely than others

to attempt suicide again. /d.

Despite this evidence, there are certainly reasons to doubt

the objective conclusion that Perez posed a strong likelihood

of another suicide attempt. Dr. Hemachandra, a trained and

licensed psychiatrist, opined that Perez gave no indication

of suicidal intention during his final evaluation on November

8, 2002. Additionally, Rice’s counseling notes during the time

period of early to mid-November show that Perez denied any

suicidal intention, and they reflect Rice’s conclusion that

Perez was not suicidal or otherwise in need of an enhanced

watch status. Ultimately, however, we find that viewing the

facts in the light most favorable to the plaintiff, there is a

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question of fact remaining as to whether there was a

recognizable significant likelihood of Perez’s attempting

suicide.

The district court also correctly found that a genuine issue

of fact remains on the subjective component of this inquiry-

whether Rice acted with deliberate indifference to a serious

medical need of which she was aware. Throughout her time

treating Perez, Rice made the decision, on several occasions

(most recently a month before he committed suicide), to place

Perez on an elevated watch status and to house Perez in an

observation cell or with roommate(s). Viewing this evidence

in the light most favorable to Perez Sr., this evidence can be

construed as demonstrating that Rice had the subjective

knowledge, at least at times, that Perez posed a risk of suicide.

Thus, there is a question of fact remaining whether Rice

knowingly disregarded this risk by moving Perez to single

cell housing on November 18, 2002, without first requesting

a medical judgment from Dr. Hemachandra whether this

placement was appropriate for Perez. Rice’s notes of her

November 18, 2002 counseling session can also be viewed

as focusing unduly on Perez’s problems with other inmates,

without considering his mental health needs and whether he

would be at risk of suicide if placed in a single cell. Jd. at

842-43.

The district court also correctly found that Rice cannot

rely on Dr. Hemachandra’s November 8, 2002 assessment

of whether Perez was suicidal (he determined that Perez was

not on that date) because the situation did not remain stable

between that date and the date Rice assigned Perez to a single

cell. Rice learned during this time that Perez was refusing to

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take his medication without Dr. Hemachandra’s consent or

direction and also that Perez was experiencing problems

getting along with other inmates.

Once again, however, the record is not clear-cut on this

issue. As the district court noted, a reasonable juror could

construe Rice’s November 4 and November 18, 2002 reports

stating that Perez did not appear suicidal to mean that Rice

did not subjectively perceive the danger posed by Perez’s

condition and thus could not have acted with deliberate

indifference, whether or not she should have perceived such

a risk, or whether or not she should have trusted her own

non-medical judgment about Perez’s state, given the changed

circumstances since Dr. Hemachandra’s most recent

evaluation of Perez. However, we ultimately agree with the

district court that viewing the evidence in the light most

favorable to Perez Sr., as we are compelled to do (see

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)), there is a

genuine question of material fact remaining as to whether

Rice acted with deliberate indifference to Perez’s serious

medical needs.

Taken together, the evidence regarding the objective and

subjective inquiries for deliberate indifference create a

genuine issue of material fact whether Rice demonstrated

deliberate indifference by disregarding a risk of known

serious harm to Perez by making housing decisions for him

without consulting a medical professional. This, however, is

a conclusion which we can reach only with some reluctance

in view of the uneven quality of the record.

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2. Qualified Immunity Claim

Under the qualified immunity doctrine, “government

officials performing discretionary functions generally are

shielded from liability from civil damages insofar as their

conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.” Walsh v. Cuyahoga County, 424 F.3d 510, 513 (6th

Cir.2005) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818,

102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). “[Q]ualified

immunity [ ] is an immunity from suit, not just from an

ultimate assessment of damages.” Archie v. Lanier, 95 F.3d

438, 440 (6th Cir. 1996) (citing Mireles v. Waco, 502 U.S. 9,

11, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991)). This immunity

shields officials “as long as their actions could reasonably

have been thought consistent with the rights they are alleged

to have violated.” Myers v. Potter, 422 F.3d 347, 352 (6th

Cir.2005) (quoting Anderson v. Creighton, 483 U.S. 635, 638,

107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)), reh’g & reh’g en

banc denied (Dec. 30, 2005).

“The purpose of the qualified immunity defense is to

protect public officials ‘from undue interference with their

duties and from potentially disabling threats of liability.’ ”

Vakilian v. Shaw, 335 F.3d 509, 516 (6th Cir.2003) (quoting

Blake v. Wright, 179 F.3d 1003, 1007 (6th Cir.1999)). In

Skousen v. Brighton High Sch., this court noted that:

the philosophy behind the doctrine of qualified

immunity is a desire to avoid the substantial costs

imposed on government, and society, by

subjecting officials to the risks of trial. Suck

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burdens include distraction of officials from their

government duties, inhibition of discretionary

action, and deterrence of able people from public

service.

Skousen v. Brighton High Sch., 305 F.3d 520, 526 (6th

Cir.2002) (internal quotation marks omitted).

In evaluating a qualified immunity defense, this court

engages in a two-part analysis. We first determine whether,

on the facts alleged, the official violated a constitutional or

statutory right. Walsh v. Cuyahoga Cty., 424 F.3d 510, 513

(6th Cir.2005) (citing Sample v. Bailey, 409 F.3d 689, 695

(6th Cir.2005)). We view the facts alleged in the light most

favorable to the party seeking to defeat immunity, in this

case Perez Sr. Myers v. Potter, 422 F.3d 347, 352 (6th

Cir.2005). If the plaintiff does not establish the violation of

a constitutional or statutory right, the inquiry ends there and

the official is entitled to immunity. See Midkiff v. Adams Cty.

Reg. Water Dist., 409 F.3d 758, 771 (6th Cir.2005), reh’g &

reh’g en banc denied.

Here, we have already determined that there is a genuine

issue of fact as to whether Rice violated Perez’s Eighth

Amendment constitutional right. Thus, though it is a close

case, we cannot hold that Rice is entitled to qualified

immunity (on summary judgment) based on the first step of

the qualified immunity analysis.

We thus move to the second step of the qualified

immunity test; we determine whether the right violated was

“clearly established” at the time of the violation. Myers, 422

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F.3d at 352 (citing Estate of Carter v. City of Detroit, 408

F.3d 305, 310 (6th Cir.2005)). The burden of showing that

the right was clearly established “rests squarely with the

plaintiff.” Key v. Grayson, 179 F.3d 996, 1000 (6th Cir. 1999)

(quoting Cope v. Heltsley, 128 F.3d 452, 459 (6th Cir.1997)).

“The relevant, dispositive inquiry in determining whether

a right is clearly established is whether it would be clear to a

reasonable officer that his conduct was unlawful in the

situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202,

121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Moreover, the

plaintiff must show that the right was clearly established “in

light of the specific context of the case, not as a broad general

proposition.” /d. at 201, 121 S.Ct. 2151. If reasonable officers

could disagree about the lawfulness of the conduct in

question, immunity must be recognized. Key, 179 F.3d at

1000.

In order to determine if the law is clearly established

such that a reasonable official could determine that her

actions were unlawful, we look principally to the law of this

circuit and to the Supreme Court. Lavado v. Keohane, 992

F.2d 601, 606 (6th Cir.1993); Poe v. Haydon, 853 F.2d 418,

423-24 (6th Cir.1988). However, we have held that the lack

of Supreme Court or Sixth Circuit precedent “is not a

sufficient condition for concluding that the law is unclear on

the subject and [thus that] qualified immunity must be granted

to a defendant.” McCloud v. Testa, 97 F.3d 1536, 1556 (6th

Cir.1996). “[T]he decisions of other courts can also clearly

establish the law[,] but they must point [unmistakably] to

the unconstitutionality of the conduct and be so clearly

foreshadowed by applicable direct authority as to leave no

20a

Appendix A

doubt in the mind of a reasonable officer that his conduct

was unconstitutional.” Summar v. Bennett, 157 F.3d 1054,

1058 (6th Cir.1998) (internal citation omitted).

For a right to be clearly established, “there need not be a

case with the exact same fact pattern, or even ‘fundamentally

similar’ or ‘materially similar’ facts; rather, the question is

whether the defendants had ‘fair warning’ that their actions

were unconstitutional.” Cummings v. City of Akron, 418 F.3d

676, 687 (6th Cir.2005) (quoting Hope v. Pelzer, 536 U.S.

730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)).

Cf United States v. Lanier, 520 U.S. 259, 271, 117 S.Ct.

1219, 137 L.Ed.2d 432 (1997) (“general statements of the

law are not inherently incapable of giving fair and clear

warning, and in [some] instances a general constitutional rule

already identified in the decisional law may apply with

obvious clarity to the specific conduct in question, even

though the very action in question has not previously been

held unlawful”)(internal citation omitted); Feathers v. Aey,

319 F.3d 843, 848 (6th Cir.2003) (“an action’s unlawfulness

can be apparent from direct holdings, from specific examples

described as prohibited, or from the general reasoning that a

court employs”).

For Perez Sr., this precedent taken together means he

must show that binding authority would have alerted

reasonable people in Rice’s position that her conduct was

unlawful. In the context of a prisoner’s Eighth Amendment

medical-care claim, such precedent had to alert Rice that her |

conduct was deliberately indifferent to a strong likelihood

that Perez would try to kill himself.

2la

Appendix A

We ultimately find that Rice is entitled to qualified

immunity because no law exists that would clearly establish

for a person in Rice’s position that she was violating Perez’s

Eighth Amendment rights. Perez Sr. is correct that Perez’s

right not to have prison officials treat his known serious

medical need with indifference, including psychiatric and

psychological counseling and medication, was clearly

established by binding case law at the time of his death in

November 2002. In April 2002 we stated the applicable

general proposition: “It is well settled that the ‘deliberate

indifference to serious medical needs of prisoners constitutes

the unnecessary and wanton infliction of pain ... proscribed

_by the Eighth Amendment.’ ” Terrance v. Northville Reg’l

Psychiatric Hosp., 286 F.3d 834, 843 (6th Cir. Apr.8, 2002)

(quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285,

50 L.Ed.2d 251 (1976)). This court has also said more

specifically that “a prisoner’s ‘psychological needs may

constitute serious medical needs, especially when they result

in suicidal tendencies.’ ” Comstock v. McCrary, 273 F.3d 693,

703 (6th Cir.2001) (quoting Horn v. Madison County Fiscal

Court, 22 F.3d 653, 660 (6th Cir.1994)).

These established principles, however, were not enough,

on their own, to alert a reasonable caseworker that Rice’s

conduct was deliberately indifferent under the circumstances.

“[W]e do not assess the right violated at a high level of

generality, but instead, we must determine whether the right

[is] ‘clearly established’ in a more particularized . . . sense.”

Myers v. Potter, 422 F.3d 347, 356 (6th Cir.2605) (quoting

Anderson v. Creighton, 483 U.S. 635, 639-40, 107 S.Ct. 3034,

97 L.Ed.2d 523 (1987)). “Because most legal rights are

‘clearly established’ at some level of generality, immunity

22a

Appendix A

would be impossible to obtain if a plaintiff were required

only to cite an abstract legal principle that an official had

‘clearly’ violated.” Martin v. Heideman, 106 F.3d 1308, 1312

(6th Cir.1997).

For example, in Brosseau v. Haugen, 543 U.S. 194, 125

S.Ct. 596, 160 L.Ed.2d 583 (2004), the Supreme Court

evaluated the qualified immunity claim of an officer who

had shot an individual who had been attempting to flee from

law-enforcement officers in motor vehicles. The Supreme

Court found the “cases relevant to the ‘situation [Brosseau]

confronted’ ” to be ones that considered “whether to shoot a

disturbed felon, set on avoiding capture through vehicular

flight, when persons in the immediate area are at risk from

that flight.” /d. at 200, 125 S.Ct. 596 (quoting Saucier v.

Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272

(2001)). Brosseau has been interpreted to mean “that the law

is not clearly established when it is ‘heavily dependent on

the specific facts of each case and no case squarely

addresse[s] the facts of this case.’ ” Lyons v. City of Xenia,

417 F.3d 565, 579 (6th Cir.2005) (citing Randall v. City of

Fairbanks, 352 F.Supp.2d 1028, i037 (D.Alaska 2005)).

In Comstock v. McCrary, 273 F.3d 693 (2001), this court

held that once a prisoner has been deemed suicidal, it is

clearly established that the prisoner is entitled to continuing

medical treatment. Here, Perez was not deemed to be suicidal

at the time he was moved to the single cell. Additionally,

Perez was not generally deprived of medical treatment

involving his mental health needs. Thus, Perez Sr. would

have to prove that his son’s right to have his serious medical

needs treated without deliberate indifference encompassed

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Appendix A

a right to a correct assessment of his suicide risk or an

effective suicide-monitoring arrangement. See Danese v.

Asman, 875 F.2d 1239, 1244 (6th Cir.1989) (“The ‘right’ that

is truly at issue here is the right of a detainee to be screened

correctly for suicidal tendencies and the right to have steps

taken that would have prevented suicide. The general right

to medical care, for example, is not sufficient to require a

police officer to have known that he had to determine that

Danese was seriously contemplating suicide and stop him

from following through.”). Perez identifies no pre-November

2002 published decision of the U.S. Supreme Court or this

court requiring such a determination, nor have we found any.

If no binding precedent is available that directly holds that

conduct materially or fundamentally similar to Rice’s

was unlawful in October-November 2002 under the

circumstances, as is the case here, the court may still find

that Rice violated a clearly established right through one other

avenue: showing “a generally applicable principle from either

binding or persuasive authorities whose ‘specific application

to the relevant controversy’ is ‘so clearly foreshadowed by

applicable direct authority as to leave no doubt in the

mind of a reasonable officer that his conduct was

unconstitutional.’ ” High v. Fuchs, 74 Fed.Appx. 499, 502

(6th Cir.2003) (quoting Summar v. Bennett, 157 F.3d 1054,

1058 (6th Cir.1998)).

However, Perez Sr. failed to show such a principle. On

the contrary, by October 2002 this circuit’s published case

law had established that inmates have no general right to be

correctly screened for suicidal tendencies. Danese v. Asman,

875 F.2d 1239, 1244 (6th Cir.1989), cited by Davis v. Fentress

24a

Appendix A

County, 6 Fed.Appx. 243, 249 (6th Cir.2001) (“Nor has this

court recognized a generalized right of a prisoner to be

protected against committing suicide.”). The circuit’s

published case law also held that “the generalized right of a

prisoner to be free from deliberate indifference [to a known

serious medical need] cannot support a finding that there

was a Clearly established right to be protected from

committing suicide.” Rich v. City of Mayfield Heights, 955

F.2d 1092, 1096-97 (6th Cir.1992).

We acknowledge that Rice may have demonstrated poor

judgment in several ways. She made critical decisions based

ultimately on her own assessment of Perez’s risk of suicide,

even though she had suicide-detection and prevention

training but no advanced psychiatry or psychology degree;

she may have underestimated Perez’s risk of suicide;

additionally, making a cell-assignment decision or

recommendation without first consulting Perez’s treating

physician or prison psychiatrist Hemachandra may have been

ill-advised. These arguable errors might make Rice liable

for negligence or negligent infliction of emotional distress,

but those are properly the subject of state-law tort claims,

not an Eighth Amendment claim. We find no case law to

suggest that any of these errors clearly violated Perez’s Eighth

Amendment rights.

Finally, we must consider Perez Sr.’s claim that Rice is

not entitled to qualified immunity because her conduct

involved performance of a ministerial, rather than a

discretionary, function. It is well established that only

officials performing discretionary, as opposed to ministerial,

functions, are entitled to qualified immunity. Davis v. Holly,

25a

Appendix A

835 F.2d 1175, 1178 (6th Cir.1987). However, we decline to

address the merits of this argument because Perez Sr. waived

this issue by not raising it at the district court. We do not -

consider an argument raised for the first time on appeal unless

the party shows that refusal to consider the argument would

result in a miscarriage of justice. United States v. Isaiah, 434

F.3d 513, 522 (6th Cir.2006). Perez Sr. does not argue that

such a miscarriage of justice would occur here, and we do

not believe it would. Perez Sr.’s only reply to Rice’s waiver

argument is “[t]he issue most certainly is properly before

the Court. Rice brought her motion for summary judgment,

in part, based on a qualified immunity argument. The District

Court held she is entitled to qualified immunity. [Perez Sr.]

filed an appeal which challenges that Rice is entitled to

qualified immunity.” (Pl.’s Reply Br. 22). Perez Sr.’s

argument fails because he had a chance to respond to Rice’s

motion for summary judgment in the district court and did

not raise the ministerial function argument. Because this

specific argument was made for the first time on appeal and

our decision not to address the issue does not result in a

miscarriage of justice, we decline to consider the issue. See

Isaiah, 434 F.3d at 522. For these reasons, we find that the

district court was correct in granting summary judgment for

Rice based on her entitlement to qualified immunity.

B. § 1983 Claim Against Oakland County

Plaintiff brought a federal § 1983 claim against

Defendant Oakland Country. A municipality (or in this case

a county) “cannot be held liable under § 1983 for an injury

inflicted solely by its employees or agents.” Gregory v. Shelby

County, 220 F.3d 433, 441 (6th Cir.2000) (citing Monell v.

26a

Appendix A

Dep t of Social Servs. , 436 U.S. 658, 694, 98 S.Ct. 2018, 56

L.Ed.2d 611 (1978)). In Monell, the Supreme Court held that

a municipality can, however, be found liable under § 1983

where a policy of the municipality itself causes the

constitutional violation at issue. The Court said, “[i]t is when

execution of a government’s policy or custom .. . inflicts

the injury that the government as an entity is responsible

under § 1983.” Monell, 436 U.S. at 694, 98 S.Ct. 2018. This

court has likewise said, “[f]lor liability to attach, there must

be execution of a government’s policy or custom which

results in a constitutional tort.” Gregory 220 F.3d at 441.

Additionally, Perez Sr. must show that “through its deliberate

conduct, the [County] was the ‘moving force’ behind” the

violation of his constitutional rights-that is, he “must show

that the [County’s] action was taken with the requisite degree

of culpability and must demonstrate a direct casual link

between the [County’s] action and the deprivation of federal

rights.” Gregory, 220 F.3d at 442 (quoting Board of County

Comm'rs of Bryan County v. Brown, 520 U.S. 397, 405, 117

S.Ct. 1382, 137 L.Ed.2d 626 (1997)).

The “deliberate indifference” standard applies to the

County. See Gray v. City of Detroit, 399 F.3d 612, 616-18

(6th Cir.2005); Barber v. City of Salem, 953 F.2d 232, 238-

40 (6th Cir.1992). The County has “a duty . . . to recognize,

or at least not to ignore, obvious risks of suicide that are

foreseeable,” and to take reasonable steps to prevent an

inmate’s suicide “[w]here such a risk is clear.” Gray, 399

F.3d at 618. However, “[d]Jeliberate indifference remains

distinct from mere negligence. Where a city does create

reasonable policies, but negligently administers them, there

is no deliberate indifference and therefore no § 1983 liability.”

27a

Appendix A

Gray, 399 F.3d at 618 n. 1 (6th Cir.2005). “ ‘[D]eliberate

indifference’ is a stringent standard of fault, requiring proof

that a municipal actor disregarded a known or obvious

consequence of his action.” Board of County Comm’rs of

Bryan County v. Brown, 520 U.S. at 410, 117 S.Ct. 1382. In

evaluating § 1983 claims against counties, we consider

legitimate governmental interests such as “the allocation of

resources,” including “time, personnel, and money.” Roberts

v. City of Troy, 773 F.2d 720, 725 (6th Cir.1985).

Here, Perez Sr. must identify an Oakland County policy

or custom that demonstrated deliberate indifference to the

serious mental health needs of inmates at the County Jail.

Liability would rest, if at all, on the actions of Rice in the

context of the County’s policy, since we found that she

violated Perez’s Eighth Amendment rights. See Watkins v.

City of Battle Creek, 273 F.3d 682, 687 (6th Cir.2001). Perez

Sr. argues that the County policy that demonstrates deliberate

indifference and that is a violation of the Eighth Amendment

is allowing non-medical personnel such as Rice to make the

ultimate decision about the housing assignments of mentally

ill inmates.

The district court found that Perez Sr. failed to show a

genuine issue of fact as to whether the County demonstrated

deliberate indifference by allowing case workers like Rice

to make housing decisions that sometimes implicated the

medical needs of inmates. Perez v. Oakland County et al.,

380 F.Supp.2d 830, 851 (E.D.Mich.2005). We agree. Perez

Sr. provides no evidence that this practice has ever resulted

in a suicide or attempted suicide by another inmate, either at

the County Jail or in another jail across the country. It does

28a

Appendix A

not seem “obvious,” as Perez Sr. argues (Pl.’s Br. 59), that

allowing a caseworker well-trained in mental health needs

and suicide’ to occasionally make housing decisions that

affect the mental health of inmates would result in a suicide,

and the lack of statistics to support this conclusion furthers

the argument that there was a lack of foreseeability. See Gray,

399 F.3d at 619 (finding no deliberate indifference partly

because the plaintiff's decedent was the only individual who

had committed suicide in a City of Detroit facility in the

past 20 years). We agree with the district court that supplying

expert testimony that the County’s practice is inadequate and

poses a risk to inmates does not support the conclusion that

the County acted with deliberate indifference to Perez’s

mental health needs, though it might support the conclusion

that the County was negligent. A finding of negligence does

not satisfy the deliberate indifference standard. See Gray,

399 F.3d at 618 n.1; Molton v. City of Cleveland, 839 F.2d

240, 246 (6th Cir.1988).

Perez Sr. also argues, in support of its position of

deliberate indifference, that the County’s policy of allowing

2. Between Rice’s hiring by the jail in 1994 and the decedent’s

suicide in November 2002, Rice took courses in Suicide Assessment

and Prevention, Understanding Suicide-Nonverbal and Circumstantial

Clues; Handling the Mentally Ill on the Street or in Lockup; Suicide

Awareness and Handling Aggressive Behavior; Non-violent Crisis

Intervention; Dealing with the Frustrating Client; Psychiatric

Emergencies; Understanding Depression; Anger and Aggressiveness;

Suicide Assessment and Interventions Strategies; Recognition/De-

escalation of Violent Clients; Angry Adolescents; Personality Disorders

in Social Work and Health Care; Understanding Anger; Understanding

Anxiety; and Assessmenv/Treatment of Obsessive-Compulsive and Body

Dysmorphic Disorders. (J.A. 377).

29a

Appendix A

a caseworker like Rice, as opposed to a medical professional,

to make screening and placement decisions, is unusual.

(“Critical decisions as to the care and treatment of these

mentally ill inmates are not typically made by non-medical

officials.”). (Pl.’s Br. 59). This statement is contrary to Perez

Sr.’s own expert, Dr. Houston, who testified that such

prisoner screening and placement decisions are commonly

made by non-medical officials in prisons across the country,

although he apparently considered that practice ill-advised:

Q. So is it your testimony that the practice across

this country in county jails is that most county

jails are in conformance or nonconformance with

this standard?

A. As you have phrased it, not in conformance.

Q. Because the vast majority of county jails out

there have individuals who are trained in suicide

identification and prevention who are not

psychiatrists, correct?

A. Correct.

Q. And these people every day make

determinations whether or not somebody is

suicidal or potentially suicidal, correct?

A. Correct.

Q. Good. And you would agree that across this

country, the vast majority of decisions as to

30a

Appendix A

whether or not an individual is suicidal or

potentially suicidal are not made by psychiatrists

or clinical psychologists in the county jail

correctional setting, correct?

A. Correct.

JA 347-48 & 349.

Perez Sr. also fails to show a genuine question as to

whether there was a “direct casual link between the

[County’s] action and the deprivation of federal rights.”

Gregory, 220 F.3d at 442. In fact, Perez Sr. seems to be

arguing, at least in parts of his brief, that if Rice simply

followed the County’s policy and left Perez in the ten-man

cell, it is unlikely that Perez would have committed suicide:

Pursuant to the policy, Perez should have never

been housed in a single cell without any special

watch. ... What Rice did when she placed Perez

in a single cell without any special watch and with

the tools necessary for Perez to easily harm

himself [presumably the bedsheet] was the worst

possible thing she could have done. Arguably,

doing nothing and maintaining the status quo

[by keeping Perez in the ten-man cell] would not

have been good, but Perez would probably be alive

today.

(Pl’s Br. 28) (emphasis added). Perez Sr. contends that by

placing the decedent in a single cell just before his suicide,

caseworker Rice “ wholly disregarded jail policy ” (P\’s Br.

3la

Appendix A

27) (emphasis added) requiring that “inmates indicating

potentially suicidal behavior shall be housed in a multiple

cell with appropriate supervision watch recommended.” /d.

(quoting J.A. 592, Perez Sr. Opp’n to SJ, Ex. 28, Cty. Jail

Policy # 58 dated Feb. 25, 1987). Further, Perez Sr. argues

“Rice was aware of jail policies regarding housing of

mentally ill inmates and potentially suicidal inmates, yet she

disregarded them. ... Rice’s conduct can basically be

summarized as follows: first, she ignored jail policy

regarding the housing of potentially suicidal inmates. .. .

It simply cannot be objectively reasonable to completely

disregard a written jail policy regarding housing.” Jd. at 35-

36. These arguments and evidence further suggest a lack of

a link between County policy and Perez’s suicide. In fact,

they suggest that, if another case worker had simply followed

County policy, Perez’s suicide could have been prevented.

Thus, while these arguments may provide further support of

Rice’s negligence, they indicate that there may not even have

been a link between County policy and Perez’s suicide.

For these reasons, we find that the district court was

correct in granting Oakland County summary judgment.

Il, CONCLUSION

For the reasons stated above, we AFFIRM the district

court’s grant of summary judgment for Roberta Rice and for

Oakland County.

32a

Appendix A

CONCURRENCE

GRIFFIN, Circuit Judge, concurring. I concur in the

result and join in all portions of the lead opinion except

Section II.A.1. Specifically, I join in affirming summary

judgment for Oakland County for the reasons stated by Judge

Cudahy. I also join in affirming summary judgment for prison

caseworker Roberta Rice on the basis of qualified immunity

because it would not have been “clear to a reasonable [person

in her position] that [her] conduct was unlawful in the

situation [she] confronted.” See Saucier yv. Katz, 533 U.S.

194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001); see also

Baranski v. 15 Unknown Agents of the BATF, 452 F.3d 433,

447 (6th Cir.2006) (en banc) (a government agent is entitled

to qualified immunity unless he violates a “clearly

established” constitutional right).

I respectfully disagree, however, with Judge Cudahy’s

conclusion that Perez established a genuine issue of maierial

fact with regard to whether Rice’s conduct violated the Eighth

Amendment (Section II.A.1.). In my view, the record does

not support the allegation that Rice acted with deliberate

indifference' to Perez’s known serious medical need as we

have defined that term in the context of prisoner suicide.

1. This cumbersome phrase is necessary because the Eighth

Amendment does not give a prisoner a “right to adequate medical

care” per se. Inadequate care may or may not support a finding that

the provider acted with deliberate indifference rather than some less

culpable mens rea, such as negligence. See Estate of Carter v. City

of Detroit, 408 F.3d 305, 312 (6th Cir.2005) (“Deliberate indifference

is not mere negligence.”); see, e.g., Clark-Murphy v. Foreback, 439

F.3d 280, 291 (6th Cir.2006) ( “On these facts, it is doubtful that

negligence could be proved, much less deliberate indifference.”).

33a

Appendix A

The lead opinion asserts that “[a] genuine issue of fact

regarding the objective component of the [deliberate

indifference] standard can be met by showing that Perez

posed a strong likelihood of another suicide attempt.”

(Emphasis added.) The lead opinion correctly states the legal

standard for deliberate indifference in the prisoner-suicide

context. In our circuit,

the proper inquiry concerning the liability of a City

and its employees in both their official and

individual capacities under section 1983 for a jail

detainee’s suicide is: whether the decedent showed

a strong likelihood that he would attempt to take

his own life in such a manner that failure to take

adequate precautions amounted to deliberate

indifference to the decedent’s serious medical

needs.

Gray v. City of Detroit, 399 F.3d 612, 616 (6th Cir.2005)

(emphasis added) (quoting Barber v. City of Salem, 953 F.2d

232, 239-40 (6th Cir.1992)).

But the record simply does not show a genuine issue as

to whether Perez satisfied this standard. Again, to conclude

that Rice violated Perez’s Eighth Amendment rights, it is

not enough to establish that she may have acted with

deliberate indifference to some possibility of suicide, or even

a likelihood of suicide. This is a critical distinction: the record

might show a genuine issue as to whether Rice acted with

deliberate indifference to a real, even a substantial risk of

suicide, but it does not permit a reasonable factfinder to

conclude Rice was aware of a strong likelihood of suicide

34a

Appendix A

and acted with deliberate indifference to that very high level

of risk.

As the lead opinion notes,

there are certainly reasons to doubt the objective

conclusion that Perez posed a strong likelihood

of another suicide attempt. Dr. Hemachandra, a

trained and licensed psychiatrist, opined that Perez

gave no indication of suicidal ideation during his

final evaluation on November 8, 2002.

Additionally, Rice’s counseling notes during the

time period of early to mid-November show that

Perez denied any suicidal intention, and they

reflect Rice’s conclusion that Perez was not

suicidal or otherwise in need of an enhanced watch

status.

I agree, and the record does not create a genuine issue as to

whether Perez posed a strong likelihood of another suicide

attempt at that particular time. Judge Cudahy approves the

district court’s view that

Rice cannot rely on Dr. Hemachandra’s November

8, 2002 assessment of whether Perez was suicidal

(he determined that Perez was not on that date)

because the situation did not remain stable

between that date and the date Rice assigned Perez

to a single cell. Rice learned during this time that

Perez was refusing to take his medication without

Dr. Hemachandra’s consent or direction, and also

that Perez was experiencing problems getting

along with other inmates.

reed a — x a — —————

35a

Appendix A

The lead opinion does not explain, however, how knowledge

that Perez was not getting along with other inmates equates

or necessarily leads to knowledge that there was a strong

likelihood that he would try to kill himself. Judge Cudahy

does not identify any expert opinion or other evidence that

supports such a correlation. With regard to Rice learning that

Perez had been refusing to take his medication since his

November 8 visit to Hemachandra, it is important to note

why Perez apparently refused to take the medication during

that period. As Rice knew from her own conversation with

Perez just before the fateful housing decision, the reason

Perez eschewed the medication was simply because he did

not feel suicidal and had plans to improve his life on various

fronts.

As permitted by her employer, Rice participated in

monitoring and interacting with Perez and making treatment

and related housing decisions. The record does not suggest

that her final housing and behavior-watch decisions were

taken with deliberate indifference to a strong likelihood of

suicide-even assuming arguendo that there was such a strong

likelihood. “Where a prisoner has received some medical

attention and the dispute is over the adequacy of the

treatment, federal courts are generally reluctant to second

guess medical judgments and to constitutionalize claims

which sound in state tort law.” Westlake v. Lucas, 537 F.2d

857, 860 n. 5 (6th Cir.1976). Judge Cudahy’s attempt to

establish the genuine possibility that Rice perceived such a

strong likelihood of suicide at the relevant time is unavailing.

The lead opinion asserts,

Throughout her time treating Perez, Rice made

the decision, on several occasions (most recently

36a

Appendix A

a month before he committed suicide), to place

Perez on an elevated watch status and to house

Perez in an observation cell or with roommate(s).

Viewing this evidence in the light most favorable

to Perez Sr., this evidence can be construed as

demonstrating that Rice had the subjective

knowledge, at least at times, that Perez posed a

risk of suicide.

The fact that Rice knew Perez was or might be suicidal at

earlier times simply does not support the inference that Rice

knew that Perez posed a risk of suicide at the later time,

when Perez appeared and claimed to be in a much-improved

state of mind.

As a caseworker who had both some relevant training

and familiarity with Perez, Rice acted in reliance on her

interaction with and observation of Perez, and on Perez’s

repeated, very recent statements that (1) he had lied about

wanting to commit suicide, seeking only to obtain medication

to help him cope with incarceration rather than his medical

condition, (2) he had continued lying about his suicidal

ideation and mental state (to both Hemachandra and Rice)

in order to obtain medication to sell to fellow prisoners,

(3) he believed that he still did not need, and so was refusing

to take, that medication, and (4) he had a newfound religious

faith that gave him purpose, as well as a desire to better

himself and prepare for the future by earning a GED.

Cf. Soles v. Ingham Cty., 316 F.Supp.2d 536 (W.D.Mich.

2004) (mental-health worker was entitled to summary

judgment on § 1983 claim; although she knew prisoner had

recently attempted suicide and still reported feeling somewhat

37a

Appendix A

depressed, she was not deliberately indifferent by returning

prisoner from observation cell to general population, where

examination five days earlier showed “significant

improvement in [prisoner’s] mood and attitude,” prisoner

“seemed less agitated and told her he had not experienced

suicidal thoughts for at least a week,” and guards

contemporaneously reported that prisoner “had been less

withdrawn and was interacting more normally with others”),

aff'd, 148 Fed.Appx. 418 (6th Cir.2005). Accordingly, this

was not a case where the most recent information available

to the prison official suggested a likelihood-let alone a strong

likelihood-of suicide. This information, in fact, suggested

quite the opposite.

Finally, the lead opinion asserts,

Dr. Hemachandra testified that past threats or

attempts at suicide are considered when

determining whether an individual is suicidal,

though someone who has previously considered

or attempted suicide will not necessarily do so

again. Dr. Hemachandra also testified that a

patient who fails to take prescribed psychotropic

medication posed a risk of becoming depressed,

unable to control his moods, and ultimately

suicidal. Perez v. Oakland County et al., 380

F.Supp.2d 830, 841 (E.D.Mich.2005). Perez also

presented expert testimony stating that individuals

who suffer from schizophrenia and have made past

suicide attempts are more likely than others to

attempt suicide again.

38a

Appendix A

Hemachandra’s opinion on this subject may be correct. It

may also be that prison caseworkers such as Rice should be

familiar with these alleged statistical trends and should take

them into account when evaluating a prisoner with a history

of schizophrenia, attempted or threatened suicide, and/or

refusal to take prescribed medication. But Judge Cudahy does

not rely on any evidence that Rice was in fact aware of these

general indicators of increased risk. This omission is

significant, because it is Rice’s knowledge and perception

of Perez’s imminent likelihood of suicide that is relevant,

not the opinion of Hemachandra or anyone else about Perez’s

suicide risk factors. Cf, Horn by Parks v. Madison Cty. Fiscal

Ct., 22 F.3d 653, 661 n. 2 (6th Cir.1994).

With regard to Perez’s known failure to take his

medication in the period between his last Hemachandra visit

and his last Rice visit, the secord shows merely that Rice

must have credited Perez’s insistence that he no longer needed

the medication because he did not wish to kill himself.

Admittedly, it may have been unwise to credit Perez’s

characterization of his state of mind and his explanation for

discontinuing his medication, particularly in light of his

history and his unmedicated state itself. If so, that means

only that Rice may have been negligent in failing to perceive

a strong likelihood of suicide. If one fails to perceive a strong

likelihood, one cannot then be deliberately indifferent to it.

Farmer v. Brennan, 511 U.S. 825, 838, 114 S.Ct. 1970, 128

L.Ed.2d 811 (1994) (“{A]n 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.”); Comstock

v. McCrary, 273 F.3d 693, 703 (6th Cir.2001).

39a

Appendix A

In summary, Perez failed to carry his burden of

establishing a genuine issue of material fact that an

objectively strong likelihood of suicide existed at the time

of the assignment to a single cell. Even if such a strong

likelihood existed at that time, the surrounding circumstances

and the most recent information available to Rice preclude a

finding by a reasonable trier of fact that Rice was aware of

such a likelihood and acted with deliberate indifference

toward it. This is an additional and independent reason why

Rice is entitled to immunity. Viewing the evidence in the

light most favorable to the non-moving party, Perez has failed

to establish that Rice committed a violation of the Eighth

Amendment.

For these reasons, I concur in the result and join in all

portions of the lead opinion, except Section II.A.1.

40a

Appendix A

CONCURRING IN PART, DISSENTING IN PART

KAREN NELSON MOORE, Circuit Judge, concurring

in part and dissenting in part. I agree with Judge Cudahy in

Part II.A.1 that summary judgment should not be granted on

the issue of whether Rice committed a constitutional

violation. However, I do not believe that the grant of qualified

immunity to Rice is justified in this case, and I therefore

respectfully dissent.

We assess claims of qualified immunity according to a

three-step test:!

First, we determine whether, based upon the

applicable law, the facts viewed in the light most

favorable to the plaintiff[ ] show that a

constitutional violation has occurred. Second, we

consider whether the violation involved a clearly

established constitutional right of which a

reasonable person would have known. Third, we

determine whether the plaintiff has offered

sufficient evidence to indicate that what the

official allegedly did was objectively unreasonable

in light of the clearly established constitutional

rights.

Sample v. Bailey, 409 F.3d 689, 695-96 (6th Cir.2005)

(alteration in original) (quoting Feathers v. Aey, 319 F.3d

1. “{T]he ... three-step approach correctly encompasses the

Supreme Court’s approach to qualified immunity claims and serves to

ensure government officials the proper protection from civil suit under

the law.” Sample v. Bailey, 409 F.3d 689, 696 n. 3 (6th Cir.2005).

4la

Appendix A

843, 848 (6th Cir.2003)). “Qualified immunity must be

granted if the plaintiff cannot establish each of these

elements.” /d. at 696 (internal quotation marks omitied). Rice

is not entitled to qualified immunity on the basis oi the first

step of this test, because it “there is a genuine issue of fact

as to whether Rice violated Perez’s Eighth Amendment

constitutional right.” Majority Op. at 427.

In analyzing the clearly-established prong of the test,

the majority states that our precedents “were not enough, on

their own, to alert a reasonable caseworker that Rice’s

conduct was deliberately indifferent under the

circumstances.” Majority Op. at 428. However, we have held

that “once a prisoner has been deemed suicidal, it is clearly

established that the prisoner is entitled to continuing medical

treatment.” Majority Op. at 428 (citing Comstock v. McCrary,

273 F.3d 693, 711 (6th Cir.2001), cert. denied, 537 U.S. 817,

123 S.Ct. 86, 154 L.Ed.2d 22 (2002)). The majority

distinguishes this case from Comstock on the basis that “Perez

was not deemed to be suicidal at the time he was moved to

the single cell,” and that Perez is thus alleging “a right to a

correct assessment of his suicide risk or an effective suicide-

monitoring arrangement.” Majority Op. at 428 (citing Danese

v. Asman, 875 F.2d 1239, 1244 (6th Cir.1989), cert. denied,

494 U.S. 1027, 110 S.Ct. 1473, 108 L.Ed.2d 610 (1990)). I

do not agree with the characterization of the issue in this

case as a mere question of screening, because it is based solely

on Rice’s conclusion at the November 18, 2002 meeting that

Perez was not suicidal. As I will explain below, our precedent

does not permit us to rely on Rice’s summary dismissal of

Perez’s risk of suicide-in light of strong evidence to the

contrary-to conclude that Perez was in fact “not deemed to

42a

Appendix A

be suicidal.” Majority Op. at 428. Instead, I believe that the

record compels the conclusion that this case is analogous to

and governed by Comstock and that the right in question was

clearly established well before the events in question here.

We are required to view the facts in the light most

favorable to Perez. Comstock, 273 F.3d at 701 n. 3. The record

demonstrates that Perez “attempted suicide in his cell in

October 2002, only a month or so before his successful

suicide in November 2002.” Majority Op. at 424-25; see also

Joint Appendix (“J.A.”) at 94 (Rice Dep. at 28). “To be sure,

Dr. Hemachandra opined that [Perez] gave no indication of

suicidal ideation during his final evaluation on November 8,

2002.” Perez v. Oakland County, 380 F.Supp.2d 830, 841

(E.D.Mich.2005). However, in the time period following this

meeting “Rice learned. . . that [Perez] had continued to refuse

his medications, that he had not sought or obtained Dr.

Hemachandra’s approval of this course of action during their

most recent session, and that he had experienced problems

in a 10-man cell and had been stealing from his fellow

inmates.” /d. at 843; see also J.A. at 101-02 (Rice Dep. at

54-60). Also, “Rice presumably was aware that Plaintiff had

never received any of the counseling recommended by Dr.

Hemachandra.” Perez, 380 F.Supp.2d at 843. In her meeting

with Perez, Rice concluded that he was not suicidal; however,

she also noted that his insight was limited and his judgment

was poor. J.A. at 102 (Rice Dep. at 60). Finally, Perez

presented expert testimony “stating that individuals who

suffer from schizophrenia and have made past suicide

attempts are more likely than others to attempt suicide again.”

Majority Op. at 7; J.A. at 569 (Letter from Emanuel Tanay,

M.D., P.C., to Kenneth J. Wrobel, Jr. dated Jan. 22, 2004 at

43a

Appendix A

10). Given these facts, we must assume that Perez was still

at risk of suicide at the time of his meeting with Rice.

In order to determine that Perez was not suicidal at the

time that he was moved to the single cell, the majority

disregards all of the above-listed facts and focuses solely on

Rice’s November 18, 2002 determination. However, it is this

determination itself and Rice’s subsequent failure to seek

medical advice that “constituted the deliberate indifference

to [Perez’s] serious medical needs.”* Comstock, 273 F.3d at

704. The facts of this case are analogous to the situation

presented in Comstock, because in that case McCrary (the

defendant) released Montgomery (the decedent) from suicide

watch on the basis of an interview in which Montgomery

stated that he was not considering suicide. Comstock, 273

F.3d at 698-99. McCrary argued that he did not have

subjective knowledge of Montgomery’s risk of suicide;

however, we held that “the proper analysis requires us to ask

whether McCrary perceived that Montgomery was suicidal

when he commenced his evaluation of Montgomery [on the

day that Montgomery was released from suicide watch and

subsequently committed suicide].” /d. at 704. Similarly, the

proper analysis in this case requires consideration of all of

the evidence available to Rice at the time that she made her

determination to place Perez in a single cell. This evidence

demonstrates that Rice was aware of Perez’s risk of suicide

and that Perez consequently had a clearly established right

to continuing medical treatment.

2. In fact, Judge Cudahy acknowledges that “Rice’s notes of

her November 18, 2002 counseling session can ... be viewed as

focusing unduly on Perez’s problems with other inmates, without

considering his mental health needs and whether he would be at a

risk of suicide if placed in a single cell.” Majority Op. at 425.

44a

Appendix A

Finally, I believe that Rice acted objectively unreasonably

in light of Perez’s clearly established right to continuing

medical treatment. As described above, Rice was aware of

Perez’s suicidal tendencies and the fact that he had previously

been under close supervision because of these tendencies.

Perez, 380 F.Supp.2d at 843 n. 10; see also J.A. at 99 (Rice

Dep. at 45-46). The evidence-read in the light favorable to

Perez-supports the conclusion that a reasonable person with

Rice’s knowledge would have sought medical advice before

moving Perez to a single cell without special-watch status. I

would accordingly reverse the district court’s grant of

summary judgment as to the issue of qualified immunity for

Rice.

45a

APPENDIX B — OPINION AND ORDER REGARDING

DEFENDANTS’ MOTIONS FOR SUMMARY

JUDGMENT OF THE UNITED STATES DISTRICT

COURT FOR THE EASTERN DISTRICT OF

MICHIGAN, SOUTHERN DIVISION

FILED MARCH 31, 2005

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

. SOUTHERN DIVISION

Case No. 03-70171

Hon. Gerald E. Rosen

ARIEL PEREZ, SR., Personal Representative of the

ESTATE OF ARIEL E. PEREZ, JR.,

Plaintiff,

v.

OAKLAND COUNTY, OAKLAND COUNTY

SHERIFF’S DEPARTMENT, OAKLAND COUNTY

SHERIFF MICHAEL J. BOUCHARD, ROBERTA RICE,

DEPUTY MICHAEL MONROE, DEPUTY TERRY

MONTGOMERY, DEPUTY JOHN JORGANSON, DR.

SARATH HEMACHANDRA, and UNKNOWN

OAKLAND COUNTY SHERIFF’S DEPUTIES,

Defendants.

46a

Appendix B

OPINION AND ORDER REGARDING

DEFENDANTS’ MOTIONS FOR

SUMMARY JUDGMENT

PRESENT: Honorable Gerald E. Rosen

United States District Judge

I. INTRODUCTION

Plaintiff Ariel Perez, Sr., the father and personal

representative of the estate of Ariel Perez, Jr., commenced

this suit in this Court on January 14, 2003, alleging that the

Defendants-including Oakland County, its Sheriff’s

Department, the Oakland County Sheriff, three sheriff's

deputies, a caseworker, and a psychiatrist-violated Ariel, Jr.’s

rights under the U.S. Constitution by failing to provide

appropriate mental health treatment or monitoring while he

was being held in the Oakland County Jail in the fall of 2002.'

Specifically, on November 22, 2002, while Plaintiff was

incarcerated in this facility for a probation violation, he

attempted suicide by hanging himself from a bed sheet tied

to a vent in his cell. As a result of this attempt, Plaintiff died

a few days later, on November 26, 2002. Plaintiff's complaint

asserts federal constitutional claims under 42 U.S.C. § 1983,

as well as state-law claims of gross negligence.

On April 2, 2004, the Oakland County Defendants-

specifically, the County, its Sheriff's Department, the

1. Since Plaintiff Ariel Perez, Sr. has brought this suit on behalf

of the estate of his deceased son, and since the incidents at issue in

this case involve only Ariel Perez, Jr., the Court will henceforth refer

to Ariel, Jr. as the “Plaintiff” in this action.

47a

Appendix B

Oakland County Sheriff, caseworker Roberta Rice, and

sheriff's deputies Michael Monroe, Terry Montgomery, and

John Jorganson-filed a motion for summary judgment,

arguing that Plaintiff has failed to establish a violation of

his Eighth Amendment rights, that the evidence does not

support a claim of supervisory or municipal liability, and

that the individual County Defendants are entitled to qualified

immunity from liability. On March 31, 2004, Defendant

Sarath Hemachandra, a psychiatrist who provided mental

health services to Plaintiff while he was housed at the

Oakland County Jail, also moved for summary judgment,

arguing that there is no evidentiary basis for finding that he

violated Plaintiff's Eighth Amendment rights. Both of these

motions have been fully briefed by the parties.

On August 26, 2004, the Court met with counsel in

chambers to address Defendants’ motions. Having considered

the statements of counsel at this conference, and having

reviewed the parties’ briefs and the other materials in the

record, the Court is now prepared to rule on these motions.

This Opinion and Order sets forth the Court’s rulings.

Il. FACTUAL BACKGROUND

The factual record in this case is largely undisputed.

Plaintiff's decedent, Ariel Perez, Jr., was 19 years old on the

date of his death by suicide, November 26, 2002. Prior to

his death, Plaintiff had been diagnosed as suffering from

mental illness, and he had been incarcerated at the Oakland

County Jail on a number of occasions. This background will

be briefly recounted here, as it is relevant to the incidents at

issue in this case.

48a

Appendix B

A. Plaintiff’s Prior Terms of Incarceration at the

Oakland County Jail

Plaintiff's first period of incarceration at the Oakland

County Jail spanned from November 16 to November 30,

2000. He then was incarcerated at this facility from April 14

through April 20, 2001. The record is not clear as to the

reasons for these confinements, but they apparently passed

without incident.

In February of 2001, Plaintiff pled guilty to two charges

of felony larceny from a building, and he was given a six-

month sentence on May 11, 2001. Plaintiff was 17 years old

at the time, and it was determined that this sentence should

be served at a boot camp. Plaintiff was returned to the

Oakland County Jail in late June of 2001, however, after he

reported to a boot camp counselor that he was experiencing

hallucinations and hearing voices telling him to quit or

escape. Upon returning to the jail, he was seen by Defendant

Roberta Rice, an inmate caseworker. Plaintiff told Rice that

he had been hearing voices for the past two years telling him

to hurt himself, but that he did not listen to these voices. He

also reported having tried to hang himself at ages 14 and 17.

Based on these issues, Plaintiff was sent for a psychiatric

evaluation by Defendant Dr. Sarath Hemachandra on July 5,

2001. Dr. Hemachandra’s examination report noted Plaintiffs

history of hearing voices and considering suicide, and he also

reported that Plaintiff had a learning disability, had been

diagnosed as suffering from ADHD, and had taken Ritalin

for several years as a child. Dr. Hemachandra diagnosed

Plaintiff with a schizoaffective disorder, a personality

49a

Appendix B

disorder, and a learning disorder, and he prescribed

psychiatric medication, individual counseling, and substance

abuse counseling.” More generally, Dr. Hemachandra opined

that Plaintiff should be “watched closely.” (Plaintiffs

Response, Ex. 4, Hemachandra 7/5/2001 Evaluation Report.)

As a result of the assessments by Dr. Hemachandra and

Rice, Plaintiff was housed with a roommate and placed on a

30-minute “active behavior watch” (“ABW”). This status was

continued until July 10, 2001, when Rice met with Plaintiff

upon learning that he was refusing to take his Zyprexa

medication. Following this meeting, Rice discontinued the

30-minute ABW.

On August 20, 2001, Oakland County Jail personnel

determined that Plaintiff was suicidal, and he was placed in

an attorney booth until he could be seen by Rice. Plaintiff

reported to Rice that he had been thinking about cutting

himself with a razor or hanging himself with a sheet, and he

requested placement in a single cell. Although Rice assured

Plaintiff that his statements about suicide were being taken

seriously, her notes reflect her view that Plaintiff was being

“manipulative in order to get his way.” (Plaintiff's Response,

Ex. 9, Rice 8/20/2001 Report.) Rice also addressed Plaintiff's

concerns about his medication, advising him that he could

discuss the matter at his next scheduled psychiatric

appointment on August 23, 2001. Finally, Rice informed

Plaintiff that he would be moved to a front holding tank so

that he could be closely supervised. Despite Plaintiff's

2. Plaintiff states that he was never given the counseling ordered

by Dr. Hemachandra.

50a

Appendix B

statement that he would kill himself if moved to the holding

tanks, this placement was made and Plaintiff was put on an

“active suicide watch” (“ASW”).

The next day, Rice apparently met with Plaintiff and

downgraded his watch status from ASW to ABW. Plaintiff

met again with Rice on August 27, 2001, reporting that he

felt better and wished to be moved out of the holding cell.

Plaintiff denied any suicidal ideation, and he agreed not to

cause trouble if he were moved to the main jail. Citing this

promise of cooperation and his apparently stable condition,

Rice approved Plaintiff for reassignment to the main jail,

and she discontinued his ABW status.

Rice then met with Plaintiff on September 19, 2001, upon

learning that he had been placed in an observation cell as a

result of a fight with another inmate. Plaintiff reported that

he was not suicidal, that he had been taking his medications,

and that he was doing okay prior to the fight. Rice discussed

with Plaintiff the possibility that he be placed in a single

cell, in light of his difficulties in getting along with other

inmates, and Plaintiff agreed to this proposal. Rice

determined that Plaintiff did not appear suicidal, and that no

watch was necessary. However, in response to a query by

jail officials whether Plaintiff could be placed in an 1 1-man

cell, Rice opined that this placement was inappropriate in

light of Plaintiff's age, mental health treatment, and learning

disability. Plaintiff's incarceration apparently continued

without incident until his release on October 9, 2001.

Plaintiff next was incarcerated at the Oakland County

Jail for two days in late April of 2002, apparently as a result

Sla

Appendix B

of an altercation with his father. While Plaintiff was being

held, Rice spoke to his sister, who reported that Plaintiff had

not been complying with his mental health treatment

program, and that he was hearing voices telling him to kill

himself. Rice informed Plaintiff’s sister about the

medications he had been given while housed at the jail, and

she provided the phone numbers for two mental health

treatment programs. Plaintiff also was incarcerated at the

Oakland County Jail in late August of 2002, although the

reasons for this are not clear from the record.

In the period between his incarcerations in April and

August of 2002, Plaintiff received treatment at St. Joseph

Mercy Hospital and the North Oakland Medical Center

(“NOMC”) for depression and suicidal thoughts. In

connection with this treatment, a petition for hospitalization

was prepared on Plaintiff's behalf, a physician diagnosed

Plaintiff as suffering from schizophrenia, he was given

antipsychotic medication, and he was placed in a psychiatric

ward at NOMC from mid-May until early June. Similarly, in

early October of 2002, shortly before his final incarceration

at the Oakland County Jail, another petition for

hospitalization was prepared on Plaintiff's behalf, after he

appeared at the NOMC emergency room and reported that

he was hearing voices telling him to hurt his sister and break

into a restaurant. Plaintiff again was diagnosed with

schizophrenia on this occasion.

52a

Appendix B

B. Plaintiff’s Final Period of Incarceration at the

Oakland County Jail

Against this backdrop, Plaintiff was booked into the

Oakland County Jail on October 24, 2002 for violating his

probation. Early the next morning, Plaintiff informed a guard

that he was hearing voices and requested to speak to a

counselor immediately, but he denied being suicidal. Just

over an hour later, however, Plaintiff apparently attempted

suicide by tying his pants around his neck and the bars of his

holding cell. Plaintiff was placed in an observation cell, put

on ASW status, and seen by Rice, who continued the suicide

watch. Plaintiff also was seen by Dr. Hemachandra on an

emergency basis that day, and he reportedly told the

psychiatrist that he had attempted to hang himself in order

to see a counselor sooner and to obtain the medications,

lithium and Zyprexa, that he had been taking prior to his

incarceration. Plaintiff denied any suicidal ideation or

hallucinations, however. Dr. Hemachandra prescribed the

medications sought by Plaintiff, and recommended that he

be kept under close observation.

Plaintiff next met with Rice on October 28, 2002,

reporting that he felt better since receiving his psychiatric

medication, and denying any suicidal ideation. Regarding the

recent hanging incident, Plaintiff again stated that he was

not trying to hurt himself, but that he acted out of a desire to

be moved out of the holding tank and given his medication.

Following this meeting, Rice discontinued Plaintiff's ASW

status and approved his transfer to the general prison

population, finding that Plaintiff was cooperative and that

ee

os

53a

Appendix B

his thought processes appeared to be within normal limits.’

On October 30, 2002, Plaintiff was moved to a 10-man cell.

Rice again met with Plaintiff on November 4, 2002,

following a report that Plaintiff was refusing his psychiatric

medication. On this occasion, Plaintiff reportedly stated that

he did not need the medication, and that he had lied about

his symptoms in the past in order to obtain medication that

would help him to cope with his incarceration. Plaintiff

acknowledged that he had been depressed in the past, but

stated that he “became a Christian . . . and now has a purpose

in his life.” (Plaintiff's Response, Ex. 19, Rice 11/4/2002

Report.) Plaintiff also denied any suicidal ideation, and he

sought a cell assignment that would permit him to work on

his GED. Rice concluded that Plaintiff “appears manipulative

in order to get his way,” found that he did not appear suicidal

and that he “appears stable at this time,” and determined that

no watch was needed. (/d.)

Plaintiff was evaluated by Dr. Hemachandra on

November 8, 2002. In his report from this session, Dr.

Hemachandra recounted Plaintiff’s history of ADHD,

cannabis dependence, suicide attempts, paranoia and mood

swings. The psychiatrist also spoke to Plaintiff about his past

reports of hearing voices, but Plaintiff responded that these

reports were false, and that he merely wanted medication to

help his depression and insomnia. As he had done back in

July of 2001, Dr. Hemachandra again diagnosed Plaintiff as

3. As noted by Plaintiff, once the ASW status was discontinued,

Plaintiff's status was updated to “PSU,” reflecting a prisoner who is

not currently being watched bu: who has historically been considered

potentially suicidal.

54a

Appendix B

suffering from a schizoaffective disorder, as well as cannabis

dependence, a learning disorder, and a personality disorder,

but he found no evidence of suicidal ideation. Dr.

Hemachandra recommended that Plaintiff be given individual

counseling and substance abuse counseling.’ He also

prescribed Zyprexa and lithium, and, in light of his awareness

that Plaintiff had not been taking his psychiatric medications,

he stressed to Plaintiff the importance of taking these

medications.

Plaintiff next met with Rice on November 18, 2002, as

a result of a request by Defendant Deputy John Jorganson

that Plaintiff be approved for single cell housing. According

to Rice’s report, Plaintiff had been stealing from other

inmates in his 10-man cell, and he admitted to Rice that he

had been stealing. Plaintiff also informed Rice that he was

still refusing his psychiatric medication, and that he continued

to believe this medication was not necessary. When asked

why he had not discussed this matter with Dr. Hemachandra,

Plaintiff reportedly stated that he had been urged by his

cellmates to continue receiving the medication so that he

could sell it to them.* More generally, Plaintiff denied any

suicidal ideation, reported frequent visits and contact with

his family, and stated that he was not experiencing any

depression or anxiety. Rice concluded that Plaintiff's “insight

appears limited” and “[j]udgement appears poor,” but that

he did not appear suicidal, was stable, and was appropriate

4. Again, Plaintiff states that no such counseling was provided.

5. Plaintiff further stated that he ultimately decided not to go

through with this scheme, and instead merely refused the medication

when it was offered to him.

55a

App-ndix B

for single cell housing without any need for watch status.

(Oakland County Defendants’ Motion, Ex. C, Rice 11/18/

2002 Report.)

The next day, November 19, 2002, Rice reviewed

Plaintiff's case with Dr. Hemachandra, apparently in light

of Plaintiff's continued refusal to take his psychiatric

medications. Consistent with a standard protocol designed

to minimize the amount of unused medication in the jail

environment, Dr. Hemachandra discontinued Plaintiff's

medications, but he advanced Plaintiff's next scheduled

appointment with him from November 29 to November 26.

On the evening of November 22, 2002, Defendant

Deputy Michael Monroe .was working in the C-Block area

of the Oakland County Jail where Plaintiff was housed, and

he was relieved that evening by Defendant Deputy Terry

Montgomery. As noted, Plaintiff was not on any sort of watch

status at the time. The record indicates that “clock rounds”

of Plaintiff's jail cell were performed at 5:47 p.m. and 7:03

p.m., a gap of approximately 76 minutes.® According to a

fellow inmate, Plaintiff placed a sheet over his cell during

this period, in order to block the view into his cell. Upon

performing their 7:03 p.m. rounds, jail personnel discovered

that Plaintiff had hung himself with a bed sheet that had been

tied to the vent of his cell. He died from his injuries a few

days later, on November 26, 2002.

6. Plaintiff states that Oakland County Jail policy calls for

“clock rounds” to be performed every 60 minutes, unless an inmate

is on disciplinary or special watch status.

56a

Appendix B

Ill. ANALYSIS

A. The Standards Governing Defendants’ Motions

Two motions presently are pending before the Court.

Defendant Sarath Hemachandra has brought his motion under

both Fed.R.Civ.P. 12(b)(6) and Fed.R.Civ.P. 56, while the

Oakland County Defendants appeal solely to the latter rule.

Because the Court has considered matters outside the

pleadings, both motions will “be treated as [seeking]

summary judgment and disposed of as provided in Rule 56.”

Fed.R.Civ.P. 12(b). Under this rule, summary judgment is

proper “if 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.” Fed.R.Civ.P. 56(c).

Three 1986 Supreme Court cases- Matsushita Electrical

Industrial Co. v. Zenith Radio Corp. , 475 U.S. 574, 106 S.Ct.

1348, 89 L.Ed.2d 538 (1986), Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986),

and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548,

91 L.Ed.2d 265 (1986)-usheéred in a “new era” in the federal

courts’ review of motions for summary judgment. These

cases, in the aggregate, lowered the movant’s burden in

seeking summary judgment. Celofex explains:

In our view, the plain language of Rule 56(c)

mandates the entry of summary judgment, after

adequate time for discovery and upon motion,

against a party who fails to make a showing

57a

Appendix B

sufficient to establish the existence of an element

essential to that party’s case, and on which that

party will bear the burden of proof.

Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

After reviewing this trilogy of Supreme Court decisions,

the Sixth Circuit adopted a series of principles governing

motions for summary judgment:

* Cases involving state of mind issues are not

necessarily inappropriate for summary judgment.

* The movant must meet the initial burden of showing

“the absence of a genuine issue of material fact” as to an

essential element of the non-movant’s case. This burden

may be met by pointing out to the court that the

respondent, having had sufficient opportunity for

discovery, has no evidence to support an essential

element of his or her case.

* The respondent cannot rely on the hope that the trier

of fact will disbelieve the movant’s denial of a disputed

fact, but must “pr€ésent affirmative evidence in order to

defeat a properly supported motion for summary

judgment.”

* The trial court no longer has the duty to search the

entire record to establish that it is bereft of a genuine

issue of material fact.

58a

Appendix B

* The trial court has more discretion than in the “old

era” in evaluating the respondent’s evidence. The

respondent must “do more than simply show that there —

is some metaphysical doubt as to the material facts.”

Further, “[w]here the record taken as a whole could not

lead a rational trier of fact to find” for the respondent,

the motion should be granted. The trial court has at least

some discretion to determine whether the respondent’s

claim is plausible.

Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th

Cir.1989). See also Nernberg v. Pearce, 35 F.3d 247, 249

(6th Cir.1994). The Court will apply these standards in

resolving Defendants’ motions.

B. Plaintiff’s § 1983 Claims Against the Individual

Defendants

1. The Standards Governing Eighth Amendment

Claims

As the basis for his federal constitutional claims under

42 U.S.C. § 1983, Plaintiff cites the Eighth Amendment

protection against the infliction of “cruel and unusual

punishments.” U.S. Const. amend. VIII. As applied to

prisoners, this constitutional guarantee encompasses a right

to medical care for serious medical needs, including

psychological needs. See Estelle v. Gamble, 429 U.S. 97,

103-04, 97 S.Ct. 285, 290-91, 50 L.Ed.2d 251 (1976);

Comstock v. McCrary, 273 F.3d 693, 702-03 (6th Cir.2001).

Yet, because the Eighth Amendment prohibits only

mistreatment tantamount to “punishment,” the courts have

59a

Appendix B

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.” *839

Horn v. Madison County Fiscal Court, 22 F.3d 653, 660 (6th

Cir.1994) (citing Estelle, 429 U.S. at 104, 97 S.Ct. at 291).

Mere negligence or medical malpractice alone cannot sustain

an Eighth Amendment claim, absent a showing of deliberate

indifference. See Estelle, 429 U.S. at 105-06, 97 S.Ct. at 291-

92; Williams v. Mehra, 186 F.3d 685, 691 (6th Cir.1999)

(en banc).

The “deliberate indifference” inquiry has both objective

and subjective components. See Comstock, 273 F.3d at 702.

First, in cases involving an inmate’s medical needs, the need

“must be, objectively, sufficiently serious.” Farmer v.

Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 1977, 128

L.Ed.2d 811 (1994) (internal quotations and citation omitted);

see also Estelle, 429 U.S. at 104, 97 S.Ct. at 291. Regarding

the subjective component, the Sixth Circuit has emphasized

that a plaintiff must produce evidence showing “that 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 that risk.”

Comstock, 273 F.3d at 703 (citing Farmer, 511 U.S. at 837,

114 S.Ct. at 1979). 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, 114 S.Ct. at 1979.

This Court recently recognized that “the subjective prong of

the ‘deliberate indifference’ standard is not easily met,” as it

requires evidence of what prisc:. officials actually knew or

60a

Appendix B

believed, and not merely what they should have perceived.

Joseph v. City of Detroit, 289 F.Supp.2d 863, 872

(E.D.Mich.2003).

As Plaintiff points out, the Sixth Circuit has provided

more specific guidance in applying this Eighth Amendment

standard of “deliberate indifference” to cases of claimed

medical mistreatment. In particular, “deliberate indifference

may be established by a showing of grossly inadequate care

as well as [by] a decision to take an easier but less efficacious

course of treatment.” Terrance v. Northville Regional

Psychiatric Hospital, 286 F.3d 834, 843 (6th Cir.2002)

(quoting McElligott v. Foley, 182 F.3d 1248, 1255 (11th

Cir.1999)). This standard of “grossly inadequate care,” in

turn, has been described as “medical treatment ‘so grossly

incompetent, inadequate, or excessive as to shock the

conscience or to be intolerable to fundamental fairness.’ ”

Terrance, 286 F.3d at 844 (quoting Waldrop v. Evans, 871

F.2d 1030, 1033 (1 1th Cir.1989)).’

7. This Court professes some confusion as to the panel’s

suggestion in Terrance that “less flagrant conduct” suffices to

establish the “lower ... standard” of deliberate indifference in

“medical mistreatment cases.” Terrance, 286 F.3d at 843, 847. Surely,

medical professionals are not held to a more stringent legal standard

than other prison officials in Eighth Amendment cases, and nothing

in Estelle or its progeny could be construed as supporting such a

view. To the contrary, Estelle itself emphasizes that medical

mistreatment must be tantamount to the “unnecessary and wanton

infliction of pain” in order to satisfy the “deliberate indifference”

standard. Estelle, 429 U.S. at 104, 97 S.Ct. at 291 (internal quotations

and citation omitted). Thus, to the extent that Terrance might be

read as adopting a different standard of “deliberate indifference”

than the Supreme Court announced in Estelle, the Court necessarily

is bound to follow Estelle.

6la

Appendix B

Yet, as emphasized in the very same line of Eleventh

Circuit decisions relied upon in Terrance, a showing of

“grossly inadequate care” satisfies only the objective prong

of the “deliberate indifference” standard, and does not

subsume or otherwise dispense with the distinct requirement

that the plaintiff present evidence of a prison official’s

subjective awareness of, and disregard for, a prisoner’s

serious medical needs. See Campbell v. Sikes, 169 F.3d 1353,

1364-65 & n. 9 (Lith Cir.1999) (casting doubt upon the

decision in Waldrop in light of its apparent focus solely upon

the objective prong of the “deliberate indifference” inquiry).*

Similarly, in an en banc decision in a prison suicide case,

the Sixth Circuit emphasized that the defendant prison

psychiatrists must have known of, and yet disregarded, an

excessive risk to inmate health or safety. See Williams, 186

F.3d at 691-92 ( en banc ); see also Comstock, 273 F.3d at

703 (observing that the subjective element of the “deliberate

indifference” test “is meant to prevent. the

constitutionalization of medical malpractice claims”).

Against this legal backdrop, the Court turns to Plaintiff's

specific claims against the individual Defendants.

2. Plaintiff's Eighth Amendment Claims Against

Defendants Rice and Hemachandra

Although Plaintiff has named both health care

professionals and prison guards as Defendants, the Court

believes it appropriate to separately analyze the claims against

8. Notably, while the panel in Terrance stated that it was

“guided by” the Eleventh Circuit’s decision in Waldrop, see Terrance,

286 F.3d at 844, it failed to observe that the Eleventh Circuit itself

had called this ruling into question in Campbell.

‘Steam cae a ete LER ARCA LIES ROE RE NIA At OR sn CLE A

62a

Appendix B

these two categories of parties. Specifically, as to Defendants

Roberta Rice, an inmate caseworker at the Oakland County

Jail, and Dr. Sarath Hemachandra, a psychiatrist who provides

mental health services to prisoners housed at the jail,

Plaintiff's claims are more properly analyzed under the

medical mistreatment standards set forth in such Sixth Circuit

decisions as Williams, Comstock, and Terrance. The claims

against the remaining Defendants, in contrast, are better

suited for consideration under the more general standard of

“deliberate indifference.”

Turning, then, to the federal Eighth Amendment claims

against Defendants Rice and Hemachandra, Plaintiff's

general theory of liability, of course, is that a different course

of mental health treatment and a different housing

arrangement at the Oakland County Jail would have

prevented his suicide. As all agree, prisoners do not have a

generalized right to be correctly screened for suicidal

tendencies, or to be absolutely protected against committing

suicide. See House v. County of Macomb, 303 F.Supp.2d 850,

854 (E.D.Mich.2004) (quoting Davis v. Fentress County, 6

Fed.Appx. 243, 248-49 (6th Cir.2001)). Yet, it is just as clear

that a prisoner’s “psychological needs may constitute serious

medical needs, especially when they result in suicidal

tendencies.” Horn, 22 F.3d at 660; see also Comstock, 273

F.3d at 703; Davis, 6 Fed.Appx. at 248-49.

Under the objective prong of: the “deliberate

indifference” standard, Plaintiff must produce evidence of a

“serious medical need” that Defendants Rice and

Hemachandra were obliged to address. As noted, this can be

shown through objective evidence of “grossly inadequate

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Appendix B

care.” Terrance, 286 F.3d at 843. In the more specific context

of a prisoner suicide, the Sixth Circuit has stated that the

relevant inquiry is whether the evidence establishes a “strong

likelihood” that the prisoner would attempt to take his own

life. Barber v. City of Salem, 953 F.2d 232, 239-40 (6th

Cir.1992); see also Davis, 6 Fed.Appx. at 248-50; House,

303 F.Supp.2d at 854.

The Court finds that genuine issues of material fact

remain as to this prong of the “deliberate indifference”

inquiry. It is undisputed that Plaintiff was consistently

diagnosed with a significant menial illness, that he was

repeatedly treated for this condition over a long period of

time, and *841 that psychiatric medication was prescribed

for this disorder. Indeed, upon examining Plaintiff just two

weeks before his suicide, Dr. Hemachandra diagnosed him

as suffering from a schizoaffective disorder, among other

conditions, and he recommended counseling and medication

for this condition. Dr. Hemachandra’s report of his November

8, 2002 psychiatric evaluation also disclosed Plaintiff's past

history of suicide attempts and ADHD, and found that he

continued to experience mood fluctuations and paranoia.

Thus, it is apparent that Plaintiff suffered from a major mental

disorder that required ongoing attention and treatment, as

evidenced by Dr. Hemachandra’s treatment recommendations

and his scheduling of a follow-up appointment later in

November. .

Moreover, this record would permit, albeit not compel,

the conclusion that Plaintiff posed some likelihood of another

suicide attempt. To be sure, Dr. Hemachandra opined that

Plaintiff gave no indication of suicidal ideation during his

64a

Appendix B

final evaluation on November 8, 2002. Similarly, Rice’s

counseling notes during this time period of early to mid-

November show that Plaintiff denied any suicidal ideation,

and they reflect Rice’s conclusion that Plaintiff was not

suicidal or otherwise in need of an enhanced watch status.

Yet, there is no question that Plaintiff had both threatened

and attempted suicide in the past, and that he had been

repeatedly placed on behavior and suicide watches during

his periods of incarceration at the Oakland County Jail.

Indeed, as recently as late October of 2002, Plaintiff

apparently attempted suicide in his Oakland County Jail cell,?

leading Rice to place him in an observation cell under an

active suicide watch, and leading Dr. Hemachandra to

recommend that he be kept under close observation.

Although Dr. Hemachandra opined at his deposition that

someone who has previously considered or attempted suicide

does not “necessarily” pose a present risk of suicide, he

acknowledged that such threats and attempts are factors to

be considered in making such an assessment. (See Oakland

County Defendants’ Motion, Ex. E, Hemachandra Dep. at

33.) Dr. Hemachandra further explained that he considers

whether a patient is taking his prescribed psychiatric

medication, and he acknowledged that a patient who fails to

do so might become depressed, unstable, unable to control

his moods, and suicidal. (See id. at 33, 46-47.) Indeed, in his

last meeting with Plaintiff, Dr. Hemachandra emphasized the

importance of taking his medication in order to remain stable

9. Although Defendants seemingly dispute whether this was an

actual suicide attempt, there is at least an issue of fact on this point,

where the jail’s own records reflect a “suicide attempt” on this

occasion. (See Plaintiff's Response, Ex. 17.)

6Sa

Appendix B

and keep his depression under control. (See id. at 29.) Along

the same lines, Plaintiff has produced an expert opinion

stating, among other things, that individuals who suffer from

schizophrenia and have made past suicide attempts pose a

much higher risk of suicide, and that Plaintiff fell within a

higher-risk group of young, unmarried males. Viewing this

record in a light most favorable to Plaintiff, the Court finds

that questions of fact remain as to whether Plaintiff arguably

evidenced a significant likelihood of attempting suicide or

otherwise manifested a serious need for mental health care.

The subjective prong of the “deliberate indifference”

inquiry presents a much closer question, however, and

requires separate consideration of the claims and evidence

against Defendants Rice and Hemachandra. Regarding

Roberta Rice, an inmate caseworker, the Oakland County

Defendants point to Rice’s repeated assessment in her

counseling notes that Plaintiff was not suicidal. Whether or

not this assessment was correct, and regardless of whether

Rice might have been negligent in failing to perceive the

true risk posed by Plaintiff, Defendants argue that the record

lacks any evidence that Rice subjectively perceived this risk

and yet disregarded it, as required to establish deliberate

indifference. More generally, Defendants contend that Rice’s

conduct should not be analyzed by reference to the Sixth

Circuit’s medical mistreatment decisions, such as Terrance,

because Rice’s “job responsibility [wa]s to determine watch

status and housing, not to make medical decisions regarding

an inmate.” (Oakland County Defendants’ Reply Br. at 4.)

Although the question is a close one, the Court cannot

conclude that the record compels a determination in Rice’s

)

66a

Appendix B

favor as a matter of law. On one hand, as Defendants correctly

point out, this is not a case in which prison officials

completely ignored an inmate’s serious medical needs.

Rather, the record reflects that Rice consistently took action

and repeatedly met with Plaintiff as problems arose during

his several periods of incarceration. When a professional such

as Rice provides services, “albeit carelessly or inefficaciously,

to a prisoner, he has not displayed a deliberate indifference

to the prisoner’s needs, but merely a degree of incompetence

which does not rise to the level of a constitutional violation.”

Comstock, 273 F.3d at 703. Thus, Plaintiff cannot sustain

his claim against Rice merely by citing, for example, his

expert’s opinion that Rice acted incompetently in her

handling of Plaintiff's mental health and housing needs.

Nonetheless, there is a disturbing lack of consistency in

Defendants’ argument on this point. They repeatedly

emphasize that Rice did not make medical decisions or

diagnoses, and yet speak of Rice having “determined” at

various points that Plaintiff was not suicidal and that his

condition was stable. (See, e.g., Oakland County Defendants’

Reply Br. at 3.) While Defendants state that Rice made these

assessments as part of her responsibility to make housing

assignments and determine watch status, the facts of this very

case reveal that such decisions can sometimes affect an

inmate’s medical needs-here, the need to be monitored for a

possible suicide attempt. This is precisely the basis for

Plaintiff's and his expert’s challenge to Rice’s “competence”-

namely, that she was making decisions that were essentially

medical in nature, or that, at a minimum, could undermine

Piaintiff's necessary treatment program, but without the

necessary medical background or expertise.

67a

Appendix B

Viewed in this light, the Court finds that issues of fact

remain as to whether Rice was subjectively aware of, and

yet disregarded, Plaintiff's serious medical needs. Through

her several decisions to place Plaintiff on an elevated watch

status, most recently less than a month before he committed

suicide, and by her occasional determinations to house

Plaintiff in an observation cell or with a roommate, Rice

arguably demonstrated the subjective knowledge, at least at

some points, that Plaintiff posed a risk of suicide.’ Yet,

10. In light of this evidence, the Court cannot agree with

Defendants’ contention that the decision in House, supra, is directly

on point here. In that case, the defendant jail officials were aware

that the plaintiff suffered from a mental illness, but the record did

not disclose any past suicide attempts. In addition, while the plaintiff

apparently told jail officials that she was suicidal, the uniform

assessment of all of these officials during the three days between

the plaintiffs arrest and her suicide attempt was that the plaintiff

was not suicidal. See House, 303 F.Supp.2d at 851-52. Thus, in

granting summary judgment to the defendants on the plaintiff's

Eighth Amendment claims, the Court found “no evidence anyone

actually knew that [the plaintiff] was suicidal or facing some other

excessive health or safety risk,” but that, to the contrary, “the police

and medical records created during the relevant period indicate that

the key individuals responsible for [the plaintiff's] care and

evaluation affirmatively concluded that she was not suicidal.” 303

F.Supp.2d at 854.

The record here is significantly different. In particular, Plaintiff

had attempted suicide in the past, and there is ample evidence that,

at various points during his periods of incarceration at the Oakland

County Jail, he had been evaluated by Dr. Hemachandra and

caseworker Rice as potentially suicidal and as requiring a special

housing assignment and watch status. In addition, Defendants here

(Cont'd)

ELL LLC LIED OS IPAS OO ie ee

68a

Appendix B

viewing the record in a light most favorable to Plaintiff, Rice

arguably disregarded this known risk by approving Plaintiff

for single cell housing on November 18, 2002, without first

referring Plaintiff for a medical assessment by Dr.

Hemachandra to confirm that this housing assignment was

appropriate, or otherwise ensuring that Plaintiff's mental

condition had improved to a degree that would permit this

reassignment. Under a view of the evidence most favorable

to Plaintiff, a trier of fact could construe Rice’s notes of her

November 18, 2002 counseling session with Plaintiff as

focusing inordinately on Plaintiff's difficulties in getting

along with his fellow inmates in his current 10-man cell

assignment, while paying insufficient heed to the mental

health question of whether Plaintiff posed a risk of suicide

if housed in a single cell.

Nor is Rice shielded from liability by virtue of her

assessments throughout November of 2002 that Plaintiff did

not appear suicidal. See Comstock, 273 F.3d at 709-11

(holding that the defendant psychologist’s statement that had

“exercised his medical judgment” in removing the plaintiff's

decedent from suicide watch did not preclude a finding that

he was aware of and yet disregarded a risk of serious harm,

where there were issues of fact as to whether he performed a

(Cont’d)

had substantial past experience with Plaintiff, and the record reflects

evolving mental health needs and varying assessments of Plaintiff's

current mental condition. In contrast to the defendants in House,

who knew only generally that the plaintiff suffered from a mental

disorder and that she claimed to be suicidal, Defendants in this case

had a sizable store of information at their disposal that would have

alerted them to the severity of Plaintiff's condition.

a

69a

Appendix B

“reasoned assessment” in reaching his decision). Initially,

the Court notes that it would be difficult to accord significant

weight to this evidence, where Rice herself has acknowledged

that she is not qualified to make medical assessments.

Presumably, though, Rice would be entitled to rely upon

Dr. Hemachandra’s judgment on this issue following his

November 8, 2002 evaluation of Plaintiff, but only if the

situation remained stable and relatively unchanged in the days

after this medical assessment. In fact, however, Rice learned

in the interim that Plaintiff had continued to refuse his

medications, that he had not sought or obtained Dr.

Hemachandra’s approval of this course of action during their

most recent session, and that he had experienced problems

in a 10-man cell and had been stealing from his fellow

inmates. In addition, Rice presumably was aware that Plaintiff

had never received any of the counseling recommended by

Dr. Hemachandra. Under these circumstances, a trier of fact

could conclude that Rice disregarded a known risk of serious

harm by making decisions about Plaintiff's housing and

watch status without securing the considered views of a

qualified mental health professional regarding the

implications of these decisions to Plaintiff's health and well-

being, and without properly considering the possible impact

of the various changes in circumstances since Dr.

Hemachandra’s most recent mental health evaluation."

11. Although Rice apparently contacted Dr. Hemachandra on

November 19, 2002 to discuss Plaintiff's situation, and particularly

his refusal to take his prescribed psychiatric medications, the record

does not disclose the content or outcome of this discussion, beyond

Dr. Hemachandra’s decision to discontinue Plaintiff's medications

(Cont’d) ”

70a

Appendix B

To be sure, the record does not compel this conclusion.

For example, a trier of fact could accept at face value Rice’s

statements in her November 4 and November 18, 2002 reports

that Plaintiff did not appear suicidal. Under this view of the

record, whether or not Rice should have perceived a risk of

harm, and whether or not she should have trusted her own

competence to make, in effect, a medical judgment about

the state of Plaintiff's mental health despite the changed

conditions since Dr. Hemachandra’s most recent evaluation,

the brute fact would remain that Rice did not subjectively

perceive the danger posed by Plaintiff's condition. Yet, the

Court simply is unable to hold that this is the only permissible

view of the record, particularly in light of Rice’s

acknowledged awareness that Dr. Hemachandra had

diagnosed Plaintiff as suffering from a significant mental

health disorder that required medication, but that Plaintiff

recently had refused to take this medication and claimed that

he did not need it.

The analysis of the claims against Dr. Hemachandra is

more straightforward, albeit still by no means clear cut. As

with Defendant Rice, it bears emphasis that Dr. Hemachandra

did not altogether disregard Plaintiff's mental health needs,

but instead examined him and made treatment

(Cont'd)

and to advance his next scheduled appointment from November 29

to November 26. Elsewhere in her deposition, however, Rice made

it clear that it was her responsibility to determine an inmate’s housing

assignment and watch status, and that Dr. Hemachandra could not

overrule this decision-or, at least, that he had never before done so.

(See Oakland County Defendants’ Motion, Ex. G, Rice Dep. at 70-

73.)

7la

Appendix B

recommendations on a regular basis, pursuant to the referrals

of Rice and other jail officials. Once again, then, Plaintiff

cannot sustain his Eighth Amendment claims merely by

asserting that Dr. Hemachandra provided negligent or

ineffective treatment, or by offering an expert opinion that

questions Dr. Hemachandra’s medicai judgment. See

Comstock, 273 F.3d at 703; Williams, 186 F.3d at 691. In

particular, it does not matter whether Plaintiff or his expert

might disagree with Dr. Hemachandra’s determination,

following his last evaluation of Plaintiff on November 8,

2002, that Plaintiff did not manifest any suicidal ideation

and did not appear to be suicidal. Nor, in contrast to the claims

against Defendant Rice, can it be said that such assessments

were beyond Dr. Hemachandra’s area of expertise. Finally,

the subjective prong of the “deliberate indifference” standard

cannot be satisfied as to Dr. Hemachandra merely by showing

that prison officials tailed to carry out his recommended plan

for treating Plaintiff's mental illness.

Rather, the only possible indication of a serious health

risk that Dr. Hemachandra subjectively perceived and yet

failed to act upon concerns Plaintiff's continued refusal to

take his psychiatric medications as prescribed by the doctor.

Dr. Hemachandra himself recognized the importance of

Plaintiff taking his medication, and he emphasized this point

to Plaintiff during the November 8 evaluation. Yet, a few

days later, on November 19, Dr. Hemachandra learned from

Rice that Plaintiff was continuing to refuse his medications.

In response, the doctor discontinued the medications and

advanced Plaintiff's next scheduled appointment by three

days, from November 29 to November 26. He did not,

however, offer any opinion as to whether Rice had properly

72a

Appendix B

approved Plaintiff for a single cell assignment without any

special watch status."

The question, then, is whether this absence of affirmative

steps by Dr. Hemachandra, in light of the information that

his patient was continuing to refuse his recommended

psychiatric medications, could be found by a trier of fact to

constitute disregard of a known and serious medical need.

While the question certainly is a close one, the Court answers

it in the negative. First, it bears emphasis that Dr.

Hemachandra already knew at the time of his last evaluation

of Plaintiff on November 8 that Plaintiff was not taking his

medication. (See Oakland County Defendants’ Motion, Ex.

E, Hemachandra Dep. at 27.) Despite this, the doctor

determined through his own direct evaluation that Plaintiff

“was not suicidal,” finding “no evidence of helplessness,

hopelessness, death wishes, suicidal thoughts or plans,” but

that, to the contrary, Plaintiff appeared “upbeat” and looking

to the future. (/d. at 27-28.) Thus, when Dr. Hemachandra

later learned that Plaintiff was continuing to refuse his

medications, this alone would not cast doubt upon the

doctor’s most recent assessment, or establish the doctor’s

subjective awareness of and disregard for a heightened risk

that Plaintiff might harm himself. Moreover, there is no

evidence that Dr. Hemachandra learned anything during his

November 19 discussion with Rice that would have suggested

a heightened risk. For all that appears in the record, he was

told only that Plaintiff remained unwilling to take his

medications. In any event, even if Rice had reported her own

12. As noted, there is no evidence that Rice actually sought

Dr. Hemachandra’s opinion on this subject.

73a

Appendix B

observations to the doctor, he would have learned only that,

in Rice’s view, Plaintiff was doing well despite refusing his

medication.

More importantly, Dr. Hemachandra played no role, nor

was his opinion sought, in the fateful decision to approve

Plaintiff for single cell housing with no special watch status.

Indeed, as to this aspect of the heightened risk of harm posed

to Plaintiff, there is no evidence that the doctor even knew

that this housing reassignment had occurred. Rather, Rice

testified that she did not consult with Dr. Hemachandra prior

to clearing Plaintiff for single cell housing on November 18,

and that, in her conversation with the doctor the following

day, she merely informed him that Plaintiff (i) had denied

needing mental health treatment, (ii) was still refusing to

take his medication, (iii) had promised to raise these matters

during the doctor’s November 8 evaluation but had not done

so, and (iv) was learning disabled. (See Oakland County

Defendants’ Motion, Ex. G, Rice Dep. at 65-66.) Again, none

of this would have suggested that Plaintiff faced an increased

risk of harm since Dr. Hemachandra’s most recent

assessment.

Under this record, the only serious medical need that

Dr. Hemachandra could possibly have perceived was the need

for periodic assessments to ensure that Plaintiff's mental

health was not deteriorating as a result of a prolonged lack

of medication. The doctor did not disregard this risk-to the

contrary, he advanced Plaintiffs next scheduled appointment

by three days upon learning on November 19 that Plaintiff

still was refusing his medication. The Court does not view

the “deliberate indifference” standard as imposing an

74a

Appendix B

affirmative duty upon Dr. Hemachandra to ensure that other

prison officials consult with him before making housing or

watch status decisions about patients he is treating for mental

health conditions. Nor can Dr. Hemachandra*846 be said to

have disregarded a known risk by failing to insist that he be

given the opportunity to re-evaluate Plaintiff's mental health

status before any changes were made to this inmate’s cell

assignment or watch status.'? At most, the evidence would

permit the conclusion that Dr. Hemachandra erred in his

professional judgment as to how Plaintiff would function

without his medication, and failed to appreciate the

heightened risk that might result from this refusal. Such after-

the-fact questions about the correctness of medical judgments

cannot satisfy the “deliberate indifference” standard. See

Comstock, 273 F.3d at 703."

13. Plaintiff's expert suggests that Dr. Hemachandra owed an

ethical duty to his patients to ensure that he alone, and not unqualified

prison employees, made all of the medica! judgments relevant to the

treatment of their mental health conditions. To the extent that this

could be viewed as malpractice, however, this would not suffice to

establish deliberate indifference to Plaintiff's serious medical needs.

See Comstock, 273 F.3d at 703. Moreover, there is no evidence that

Dr. Hemachandra possessed any policymaking authority that would

have permitted him to override the procedures in place at the Oakland

County Jail for determining cell assignments and watch status.

14. The Court recognizes that it might seem incongruous to

hold that only Roberta Rice, and not Dr. Hemachandra, faces

potential § 1983 liability in this case, despite the doctor’s presumably

superior medical expertise in evaluating the suicide risk posed by

Plaintiff, and despite the significant overlap in the facts underlying

the claims against these two Defendants. Yet, the two sets of facts

(Cont'd)

75a

Appendix B

This leaves only the question whether, despite the

evidence in support of an Eighth Amendment claim against

her, Defendant Rice nonetheless is shielded from liability

by the defense of qualified immunity. Under this doctrine,

Rice cannot be held liable for violating an Eighth Amendment

right unless this right was “clearly established” at the time

of her actions, such that “a reasonable official [in her

position] would have understood that [her] conduct violated

the right.” Comstock, 273 F.3d at 711. “As the Supreme Court

has instructed, [this Court] need not find a case in which the

very action in question has previously been held unlawful,

but, in light of the pre-existing law[,] the unlawfulness must

be apparent.” Comstock, 273 F.3d at 711 (internal quotation

marks and citation omitted).

Given the closeness of the question whether the record,

viewed in a light most favorable to Plaintiff, could establish

an Eighth Amendment violation by Defendant Rice, the Court

is compelled to conclude that Rice is entitled to qualified

(Cont'd)

are sufficiently different, and in crucial respects, to warrant the

conclusion that Rice and Dr. Hemachandra are not similarly situated

for purposes of the Court’s Eighth Amendment analysis. Most

significantly, Dr. Hemachandra was not fully apprised of all of the

changes in Plaintiff's circumstances since his last evaluation, nor

was the doctor asked to opine whether single cell housing was

appropriate in light of these circumstances and Plaintiff's underlying

condition. Moreover, to the extent that Dr. Hemachandra and Rice

alike were equally mistaken in their assessments of Plaintiff's

medical needs, the doctor’s competence to make such a judgment,

even if mistaken, permits him to better withstand an Eighth

Amendment challenge to his professional opinions.

76a

Appendix B

immunity. In arguing to the contrary, Plaintiff asserts that

the right at issue here is the right to psychiatric care that

meets an inmate’s serious mental health needs. If so, the Court

certainly would agree that this right was “clearly established”

at the time of the conduct at issue here. See, e.g., Comstock,

273 F.3d at 711; Horn, 22 F.3d at 660. Yet, the Supreme Court

has cautioned against conducting this prong of the qualified

immunity inquiry at too high a “level of generality,” and has

emphasized that “the right the official is alleged to have

violated must have been ‘clearly established in a more

particularized, and hence more relevant, sense: The contours

of the right must be sufficiently clear that a reasonable official

would understand that what he is doing violates that right.”

Anderson v. Creighton, 483 U.S. 635, 639-40, 107 S.Ct. 3034,

3039, 97 L.Ed.2d 523 (1987); see also Williams, 186 F.3d at

691 n. 2 (criticizing as “too general” the formulation of the

right at issue in that case as an inmate’s right “to receive

necessary psychiatric care”).

As discussed earlier, if the Eighth Amendment claim

against Rice rested solely upon her own assessments of

Plaintiffs condition and her housing decisions based on these

assessments, any error in these judgments would not sustain

a claim of deliberate indifference. Rather, any constitutional

violation that occurred was the result of Rice’s election to

forge ahead with these judgments, despite her acknowledged

lack of medical expertise, without first seeking the views of

a qualified medical professional regarding the

appropriateness of single cell housing in light of Plaintiff's

mental health condition and the changes in circumstances

since Plaintiff was last evaluated by Dr. Hemachandra.

Neither Plaintiff nor the Court’s own research has identified

77a

Appendix B

a Supreme Court or Court of Appeals decision involving

comparable facts, nor has Plaintiff otherwise shown that the

unlawfulness of Rice’s course of action should have been

apparent in light of the existing case law.

Indeed, as discussed below, if Rice’s conduct here were

deemed clearly violative of existing law, one would expect

to find different policies and practices in place at the Oakland

County Jail and at similar facilities across the country. As

acknowledged by one of Plaintiff's experts, the vast majority

of county jails allow determinations about an inmate’s

suicidal tendencies to be made by employees who are not

psychiatrists, but instead have merely been trained in suicide

detection and prevention. Similarly, in this case, there is no

evidence that Rice deviated from her usual practice in

determining Plaintiffs cell assignments-rather, it is clear

from her testimony that she routinely makes such decisions

based on her own assessments, and without first consulting

the inmate’s treating physician or psychiatrist. Although

Plaintiff's experts question whether a caseworker such as

Rice, with suicide detection and prevention training but no

advanced degree in psychiatry, should be allowed to make

such determinations, Plaintiff has failed to demonstrate that

it was clearly unlawful for her to do so at the time she made

the cell assignment at issue here.

To be sure, if Oakland County’s policies and practices

on this subject did not pass constitutional muster, Rice’s strict

adherence to these practices would not preclude a finding

that she violated Plaintiff’s rights under the Eighth

Amendment. For purposes of the Court’s qualified immunity

analysis, however, Rice should not be compelled to question

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Appendix B

the legality of her employer’s policies, absent clearly

established law that would have alerted her to such a defect.

Because the Court has been unable to locate any such pre-

existing law, Rice is entitled to qualified immunity.

3. Plaintiff's Eighth Amendment Claims Against

the Oakland County Sheriff and Deputies

Plaintiff's Eighth Amendment claims against the

remaining individual Defendants-Oakland County Sheriff

Michael J. Bouchard and deputies Michael Monroe, Terry

Montgomery, and John Jorganson-are much more easily

resolved. Defendants argue that the claim against Sheriff

Bouchard rests solely upon an impermissible theory of

respondeat superior, and that the claims against the deputies

fail for lack of evidence that they disregarded any known

risk faced by Plaintiff. The Court agrees.

Regarding Sheriff Bouchard, the complaint alleges only

that he was the commanding officer of the Oakland County

Sheriff's Department and the Defendant deputies, that he was

responsible for ensuring that the County’s deputies enforced

and followed the law, and that he was in charge of the Oakland

County Jail. As noted by Defendants, however, these

supervisory allegations alone cannot sustain a § 1983 claim,

absent allegations and evidence that Sheriff Bouchard himself

engaged in “active unconstitutional behavior” by directly

participating, encouraging, authorizing, or acquiescing in the

allegedly offending conduct of a sheriff's deputy. See Doe v.

City of Roseville, 296 F.3d 431, 439-40 (6th Cir.2002);

Comstock, 273 F.3d at 712-13. In his response to the Oakland

County Defendants’ motion, Plaintiff does not even attempt

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Appendix B

to identify any evidence of such affirmative conduct by

Sheriff Bouchard, but instead mentions him only along with

the Defendant Oakland County as having adopted allegedly

unconstitutional customs or practices for providing care to

mentally ill inmates. This “official capacity” claim against

the Sheriff, which is essentially a claim against the County

itself, see Leach v. Shelby County Sheriff, 891 F.2d 1241,

1245 (6th Cir.1989), does not provide a basis for individual

liability against the Sheriff under § 1983.

Regarding Deputy John Jorganson, the record indicates

that he placed Plaintiff in a single cell on November 18, 2002,

following Plaintiff's difficulties with his fellow inmates in

his existing 10-man cell assignment. This single cell, of

course, was the one in which Plaintiff committed suicide four

days later. In light of his history of prior suicide and behavior

watches, Plaintiff argues that “a jury could possibly decide

that a reasonable person, in Deputy Jorganson’s position,

would have concluded that a substantial risk of serious harm

to [Plaintiff] existed” by placing him in a single cell.

(Plaintiff's Response Br. at 22.) Be that as it may, however,

the “deliberate indifference” standard requires evidence that

Deputy Jorganson actually perceived this risk. See Farmer,

511 U.S. at 837-38, 114 S.Ct. at 1979; Comstock, 273 F.3d

at 703.

The evidentiary record not only fails to support this

conclusion, but it essentially refutes it. In accordance with

jail policy, which requires that any inmate who previously

has been on watch status must be cleared for single cell

housing, Deputy Jorganson sought the approval of inmate

caseworker Roberta Rice before fransferring Plaintiff from

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Appendix B

a 10-man to a single cell. Before placing Plaintiff in a single

cell, Deputy Jorganson obtained clearance from Rice to make

this transfer-specifically, as disclosed in her November 18,

2002 counseling notes, Rice concluded that Plaintiff could

safely be placed in a single cell, and that no watch was

necessary. In reliance on this determination, by the jail official

expressly authorized to make housing and watch status

decisions, Deputy Jorganson placed Plaintiff in a single cell.

Plainly, then, Deputy Jorganson had no basis to believe that

a single cell assignment posed a significant risk of harm to

Plaintiff, where he had been assured by a presumably

competent authority that there was no such risk.'* And, there

is no evidence whatsoever that, despite this assurance, Deputy

Jorganson nonetheless perceived that a single cell assignment

could jeopardize Plaintiffs health and well-being.

Accordingly, Plaintiff cannot satisfy the subjective prong of

his Eighth Amendment “deliberate indifference” claim

against Deputy Jorganson.

The claims against Deputies Monroe and Montgomery

fail for similar reasons. Plaintiff's sole basis for seeking to

impose liability on these Defendants is that they were on

duty on Plaintiff's cell block when he committed suicide on

November 22, 2002. Contrary to a jail policy calling for

“clock rounds” to be conducted every 60 minutes, the

Defendant deputies conducted clock rounds at 5:47 p.m. and

7:03 p.m., a 76-minute interval during which Plaintiff hung

himself from a bed sheet in his cell. From these facts, Plaintiff

i 4

i* <rdeed, even if Deputy Jorganson had reviewed Plaintiff's

medicw se-ords, the most recent psychiatric assessment of Plaintiff

by Dr. Hemachandra would have confirmed Rice’s determination

that Plaintiff was not suicidal.

ee

8la

Appendix B

maintains that “a jury could possibly decide that a reasonable

person, in [the deputies’] position, would have concluded

that a substantial risk of serious harm to [Plaintiff] existed.”

(Plaintiff's Response Br. at 22-23.) Once again, however,

this objective standard, even if satisfied, does not address

the subjective prong of the “deliberative indifference”

inquiry-it is not enough, in other words, for Plaintiff “to

demonstrate a question of fact whether the ... sheriff's

deputies should have known” of a substantial risk faced by

Plaintiff. Watkins v. City of Battle Creek, 273 F.3d 682, 686

(6th Cir.2001).

In fact, the record is utterly silent as to this issue of what

Deputies Monroe and Montgomery subjectively perceived.

Given that Plaintiff had been placed in a single cell and no

special watch status had been ordered, there would have been

no particular reason for these deputies to believe that it was

necessary to watch Plaintiff any more closely than any other

inmate. This being the case, there would have been no basis

for these deputies to perceive that Plaintiff (or any other

inmate on the cell block) faced a substantial risk of serious

harm if they conducted their rounds 16 minutes further apart

than mandated under jail policy. And, once again, there is no

evidence that Deputy Monroe or Deputy Montgomery

actually drew the inference that their delayed rounds might

threaten Plaintiff's health and well-being.

Indeed, if Plaintiff's theory of liability were accepted as

to Deputies Jorganson, Monroe, and Montgomery, a jailer

would always be chargeable with knowledge of a substantial

risk of harm to an inmate, so long as the inmate had been

placed on a special watch status at any point during his

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Appendix B

incarceration. Neither Plaintiff nor the Court’s own research

has uncovered any authority for this position. Plainly, an

inmate’s watch status can change from time to time, and

prison guards presumptively are entitled to rely on the

determination of a designated authority that such a change is

based on sound medical or other professional judgment.

Nothing in the record in this case would demand that the

Defendant deputies second-guess Rice’s decision that

Plaintiff did not need a special cell assignment or watch

Status,

C. Plaintiff’s § 1983 Claim Against Defendant Oakland

County

The sole remaining federal claim asserted by Plaintiff is

a § 1983 claim against Defendant Oakland County. Under

familiar principles, this governmental Defendant “cannot be

held liable under § 1983 for an injury inflicted solely by its

employees or agents.” Gregory v. Shelby County, 220 F.3d

433, 441 (6th Cir.2000) (citing Monell v. Department of

Social Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56

L.Ed.2d 611 (1978)). Instead, “[flor liability to attach, there

must be execution of a government’s policy or custom which

results in a constitutional tort.” Gregory, 220 F.3d at 441.

Moreover, Plaintiff must establish that “through its deliberate

conduct, the [County] was the ‘moving force’ behind” the

violation of his constitutional rights-that is, he “must show

that the [County’s] action was taken with the requisite degree

of culpability and must demonstrate a direct causal link

between the [County’s] action and the deprivation of federal

rights.” Gregory, 220 F.3d at 442 (quoting Board of County

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Appendix B

Comm'rs of Bryan County v. Brown, 520 U.S. 397, 405, 117

S.Ct. 1382, 1389, 137 L.Ed.2d 626 (1997)).

Juxtaposing these and the relevant Eighth Amendment

standards set forth earlier, Plaintiff must identify a Oakland

County policy or custom that evidenced the County’s

deliberate indifference to the serious mental health needs of

inmates confined at the County Jail. The initial portion of

this inquiry, at least, follows from the Court’s analysis to

this point. First, it is clear that the County’s liability must

rest, if at all, upon the actions of Defendant Rice, because

the Court already has concluded that only this Defendant

could be found by a trier of fact to have violated Plaintiff's

Eighth Amendment rights. See Watkins v. City of Battle Creek,

273 F.3d 682, 687 (6th Cir.2001); Scott v. Clay County, 205

F.3d 867, 879 (6th Cir.2000).

Next, it is evident from the Court’s earlier discussion

that the evidence forges the requisite causal link between

Rice’s actions and an Oakland County policy or practice.

Plaintiff's theory on this point is that a County custom or

practice caused his constitutional injury by allowing Rice,

an individual without the appropriate mental health education

and expertise, to make decisions that affected the care and

treatment of a mentally ill inmate. Although the Oakland

County Defendants characterize Rice’s decisions regarding

cell placement and watch status as administrative rather than

medical in nature, Plaintiff and his expert, Dr. Emanuel Tanay,

assert that a decision to place an inmate in a single cell can

have implications to his mental health treatment, by creating

an environment in which a mentally ill inmate can cause harm

to himself. In addition, the Court already has noted the

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Appendix B

Oakland County Defendants’ express acknowledgment that

Rice made determinations as to Plaintiff's mental stability

and suicidal tendencies that, viewing the record in a light

most favorable to Plaintiff, could be deemed to lie within

the province of a mental health professional.

Thus, while the Oakland County Defendants-and,

apparently, the County’s formal policies-attempt to draw a

clear distinction between the administrative, non-medical

determinations made by caseworkers such as Rice, and the

medical assessments made by trained psychiatrists such as

Dr. Hemachandra, Plaintiff has raised a substantial question

whether the actual customs and practices employed by Rice

and other caseworkers tend to blur this claimed distinction.

As an example, Plaintiff cites the deposition testimony of

Oakland County Jail administrator Ann Russell, who is

responsible for drafting the jail’s policies and procedures,

and who characterized the role of an inmate caseworker as

implementing the treatment plan developed by an inmate’s

psychiatrist. In this case, this presumably would mean that

Rice was responsible for carrying out the treatment

recommendations made by Dr. Hemachandra regarding

psychiatric medications and counseling. Yet, despite the fact

that Plaintiff had refused his medications and was not

provided with counseling, Rice alone made the

determination, without first consulting with Dr.

Hemachandra, that Plaintiff was not suicidal and could be

safely housed in a single cell.

Rice acknowledged at her deposition that her decisions

on such matters of housing are final, at least as a practical

matter, and that Dr. Hemachandra, for one, could not overrule

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Appendix B

her decisions. (See Plaintiff's Response, Ex. 24, Rice Dep.

at 71.) In addition, Rice consistently maintained throughout

her deposition that her role in the decisions regarding

Plaintiff's incarceration was wholly in keeping with the

functions typically performed by the County’s inmate

caseworkers, and the Oakland County Defendants nowhere

contend that Rice deviated from her proper role. This record,

in the Court’s view, raises genuine issues of fact as to whether,

as a matter of Oakland County custom or practice, a jail

official without sufficient medical background or expertise

was authorized to make decisions affecting the health care

needs of Plaintiff, an inmate with a significant mental health

disorder.

There remains only the question whether the County

acted “with the requisite degree of culpability,” Gregory, 220

F.3d at 442, in establishing, or at least allowing, the

challenged custom or practice. On this point, the “deliberate

indifference” standard applies to the County and the

individual Defendants alike. See Gray v. City of Detroit, 399

F.3d 612, 617-18 (6th Cir.2005); Barber v. City of Salem,

953 F.2d 232, 238-40 (6th Cir.1992); Crocker v. County of

Macomb, 285 F.Supp.2d 971, 977 (E.D.Mich.2003), aff'd,

119 Fed.Appx. 718 (6th Cir.2005). Under this standard, the

County has “a duty . . . to recognize, or at least not to ignore,

obvious risks of suicide that are foreseeable,” and to “take

reasonable steps” to prevent an inmate’s suicide “[w]here

such a risk is clear.” Gray, 399 F.3d at 618.

Nonetheless, “[d]Jeliberate indifference remains distinct

from mere negligence,” Gray, 399 F.3d at 618 n. 1, and the

County is not liable under § 1983 if it negligently administers

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Appendix B

reasonable policies or if, in hindsight, a different practice

might have decreased the risk of Plaintiff's suicide, Gray,

399 F.3d at 618 n. 1; Crocker, 285 F.Supp.2d at 977. Rather,

“ ‘deliberate indifference’ is a stringent standard of fault,

requiring proof that a municipal actor disregarded a known

or obvious consequence of his action.” Brown, 520 U.S. at

410, 117 S.Ct. at 1391. Moreover, it is important to bear in

mind that, in formulating policies and practices, local

governments are constrained by such practical considerations

as “the allocation of resources,” including “time, personnel,

and money.” Roberts v. City of Troy, 773 F.2d 720, 725 (6th

Cir.1985).

The record here, viewed in a light most favorable to

Plaintiff, simply does not establish that the County acted with

deliberate indifference in allowing inmate caseworkers such

as Defendant Rice to make housing decisions that, on

occasion at least, implicated the medical needs of County

Jail inmates. Initially, the Court notes the absence of any

evidence linking this practice to a suicide or suicide attempt

by any other County Jail inmate. This strongly suggests a

lack of foreseeability that the County’s practice posed a

significant risk of inmate suicides. See Gray, 399 F.3d at

619 (finding no deliberate indifference because, among other

reasons, the plaintiff's decedent was the only individual who

had committed suicide in a particular City of Detroit facility

in the past 20 years); Howard v. Calhoun County, 148

F.Supp.2d 883, 891 (W.D.Mich.2001).

In addition, the Court already has noted the testimony

of Plaintiff's expert that the challenged practice here is

widespread, with the vast majority of county jails allowing

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Appendix B

employees who are not psychiatrists, but who have been

trained in suicide detection and preveition, to make

determinations whether inmates are suicida: or potentially

suicidal. This surely would provide an adequate database

from which Plaintiff and his experts could cull and

demonstrate an obvious risk of harm posed by this

widespread practice. Yet, the record is utterly silent as to

whether any other inmate’s suicide could be linked to the

use of such a practice at any of these facilities.

Instead, Plaintiff has offered only expert opinions that

the County’s practice is inadequate, poses a danger to inmates

with severe mental illnesses, and should be changed to better

integrate psychiatric professionals into inmate housing

decisions. At best, however, this would permit the conclusion

that the County acted negligently by adopting or permitting

a practice that proved inadequate in this case. The case law

uniformly holds that such evidence does not satisfy the

“deliberate indifference” standard. See Gray, 399 F.3d at 618-

19; Molton v. City of Cleveland, 839 F.2d 240, 246 (6th

Cir.1988); Roberts, 773 F.2d at 725; Crocker, 285 F.Supp.2d

at 977. Consequently, Oakland County is entitled to summary

judgment in its favor on Plaintiff's federal § 1983 claim.'®

16. Defendants also address Plaintiffs state-law claims in their

motions. The Court declines, however, to exercise supplemental

jurisdiction over these remaining state-law claims, in light of the

resolution of all claims over which the Court has original jurisdiction.

See 28 U.S.C. § 1367(c)(3).

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Appendix B

IV. CONCLUSION

For the reasons set forth above,

NOW, THEREFORE, IT IS HEREBY ORDERED that

the Oakland County Defendants’ April 2, 2004 Motion for

Summary Judgment is GRANTED as to the federal claims

asserted by Plaintiff, and is otherwise DENIED WITHOUT

PREJUDICE. IT IS FURTHER ORDERED that Defendant

Dr. Sarath Hemachandra’s March 31, 2004 Motion for

Summary Judgment also is GRANTED as to the federal

claims asserted against him by Plaintiff, and is otherwise

DENIED WITHOUT PREJUDICE.

s/ Gerald E. Rosen

Gerald E. Rosen

United States District Judge

89a

APPENDIX C — ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

DENYING PETITION FOR REHEARING

FILED MARCH 14, 2007

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 95-1583

ARIEL PEREZ, SR., PERSONAL REPRESENTATIVE

OF THE ESTATE OF ARIEL E. PEREZ, JR.,

Plaintiff-Appellant,

v.

OAKLAND COUNTY, ET AL..,

Defendants-Appellees.

BEFORE: MOORE, GRIFFIN, and CUDAHY,’ Circuit

Judges.

The court having received a petition for rehearing en

banc, and the petition having been circulated not only to the

original panel members but also to all other active judges of

this court, and no judge of this court having requested a vote

on the suggestion for rehearing en banc, the petition for

rehearing has been referred to the original panel.

* Hon. Richard D. Cudahy, Senior United States Circuit Judge

forthe Seventh Circuit Court of Appeals, sitting by designation.

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Appendix C

The panel has further reviewed the petition for rehearing

and concludes that the issues raised in the petition were fully

considered upon the original submission and decision of the

case. Accordingly, the petition is denied.

ENTERED BY ORDER OF THE COURT

s/ Leonard Green

Leonard Green, Clerk