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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2007

## Text

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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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Appendix A
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

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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.

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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

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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

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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,

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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.”

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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

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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).

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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.

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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.”).

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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 — —————

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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.

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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

63a

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 Co

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1079%3A2. Public record. Not legal advice.