*1
420
449 Mich
420
v DETROIT
JACKSON
5).
(Calendar
5,
97889,
Argued April
No.
1995
Docket Nos.
97890.
Rehearing
August
denied
James, Joanne D. Counsel, Corporation *3 Counsel) for the Corporation Supervising Assistant defendant. appeals, J. these consolidated we
Cavanagh, respect genuine there are no issues with hold regarding plaintiffs’ public to material facts claim, pursuant to brought MCL 3.996(106), 691.1406; MSA and federal claims defendants, brought against-the named individual Accordingly, to 42 USC 1983. defendants pursuant as matter law for are judgment entitled genuine there are those claims. We hold plaintiffs’ re- of material facts issues 1983 claim of Detroit. maining § Therefore, judgment not entitled as that claim. matter of law for Appeals Court of is affirmed The decision to the trial court for and the case is remanded opinion. with this proceedings consistent Jackson v Detroit Opinion of the Court I plaintiffs’ All of claims arise from Louis Jack- attempted custody son’s suicide while in the of the Department. Detroit Police on December Jackson was arrested unlawfully driving
29, 1984, away an arrest, automobile.1 After his he was precinct ques- taken to the seventh tioned. Further station and investigation revealed that Jack- outstanding son had an arrest, warrant for his so a placed put "hold” was on him.2 Jackson was in a felony lockup cell in the male section of the sev- precinct enth station.
Approximately being an hour and a half after George arrested, Officer Sheridan discovered Jack- standing making son on the sink in his cell apparently noose out of his socks. Jackson was going hang exposed himself from the overhead help bars in his cell. Sheridan called for Jackson was taken to the crisis center at Detroit Receiving Hospital psychiatric for a evaluation. hospital, eventually
At Jackson was seen psychiatrist. diagnosed Chen, Dr. Jackson was as having adjustment depressed an disorder with opiate dependence, mood and and Chen recom- hospital mended that he be admitted to the if the charges against dropped. Jackson could be Jackson precinct was returned to the seventh station with Chen’s written and verbal admonition that Jack- kept son be under suicide watch.
Upon 30, his return on December placed felony in another cell, cell. This like all felony exposed station, cells at the had over- sergeant’s report *4 head bars. The desk said that prisoner Jackson was handled as a "routine” and 1 750.413; MCL MSA 28.645. 2 essentially custody This meant that he could not be released from brought judge outstanding until he was before a on the warrant. Mich op the Court precautions any special mention of made no suicide watch. (Officer duty
Nevertheless, on the "doorman” Lakeemba) prior suicide of Jackson’s aware sergeant (Sergeant attempt the desk and informed Keifel). keep a close Keifel told Lakeemba personally he Jackson. He said that had watch on 2:15 three times between and on Jackson checked occurring 3:30 last check at 3:30 with the p.m. p.m., duty on at 3:30 The shift came afternoon p.m. and arrived discovered When Officer Sheridan lockup, he im- to the Jackson had been returned mediately Sergeant superior officer, his informed Recognizing risk, Elliot. cally, and somewhat ironi- call "911” and have
Elliot told Sheridan to precinct. from the Sheridan removed to check on Jackson made the call and went back approximately at 3:35 He discovered Jackson p.m. hanging from a from some ma- noose fashioned pants, exposed possibly terial, to the his tied over- immediately Sheridan sum- head bars moned his cell. Jackson was help. given until emer- cpr help gency medical arrived. in case there record shows were police lockups attempts suicide percent Eighty-six of them
between lockups exposed bars. occurred Between June 1980 overhead there December attempts in the were thirteen suicide seventh precinct Moreover, the record indi- station alone. personnel attempted "command internal cates that presence change[s] policy of the to obviate exposed pre- in all the overhead horizontal bars” actually appears fact, that the did cincts.3 In remedy problem third sixteenth requests plaintiffs’ to admit of This fact established 9, 1986, September into trial which were admitted evidence court. *5 425 Detroit Opinion of the Court
precinct .during stations sometime 1983-84 weld- ing piece of steel over the bars. These modifica- precinct tions were not made to the seventh sta- lockup, allegedly, "by authority tion’s the sole of Police Chief William Hart.”4 plaintiffs brought separate The three suits. One (filed against 1985), against the one (filed 1987), individual malpractice officers and a medical against Receiving Hospi-
suit5 tal and Dr. Chen. The first two suits were consoli- dated.
Eventually, summary the defendants moved for disposition, pursuant 2.116(0(10), to MCR in the consolidated suit. The trial court dismissed the against city, § 1983 claim an intentional nui- against claim, sance and the claims the individual ruled, however, defendants. It the claim re- garding go a defect in a should forward. parties sought granted and were leave to
appeal
Appeals.
in the Court of
That Court re-
versed the decisions of the trial court on the
intentional
§
nuisance claim and the
1983 claim
against'
city,
but affirmed the dismissal of the
claims
the individual defendants and the
public building
parties
claim.6 The
moved for re-
hearing on the intentional nuisance
claim that
following
Court
Feldt,
this Court’s decision in Li v
(1990).
rehearing,
584;
434 Mich
No. Mich 420 Court (On Resubmission), light Hickey v Zezulka (1992), York v 408; 487 NW2d Mich (1991).7 Detroit, 744; 475 NW2d ultimately- Appeals remand, the Court On 1) granted properly disposition summary was held: 2) claim, on to the defendants summary granted properly disposition *6 any of of the lack that the individual defendants because individual specific allegations or evidence rights, police civil violated Jackson’s officers had 3) improperly summary disposition was enough city granted there was to the because present the factfinder to evidence against city.8 claim
ii summary a motion for case is here on This posture procedural disposition, establishes repeated review. As has often been our standard of 2.116(0(10) reviewing motion, a a MCR when documentary evidence9 and must review court genuine issue of material whether determine inferences must be All reasonable fact exists. giving thereby favor, in the nonmovant’s drawn party doubt. reasonable benefit Square 153, Co, 161-162; 516 D 445 Mich Skinner v (1994). NW2d 475 appeal granted in this consolidated We leave 1) granted city properly whether the was
consider:
summary
disposition
claim,
on the
2)
prop-
defendants were
whether
the individual
3)
disposition,
granted summary
erly
and whether
April
supported by
Of
Unpublished opinion
A The first issue is whether properly granted summary disposition on the build ing general matter, claim. As a governmental Detroit, agency, this case the is immune from tort liability perform for actions taken while ing governmental 691.1407(1); functions. MCL 3.996(107)(1).10 broad, MSA Although very this im munity subject a limited of narrowly number exceptions. drawn The applicable exception in this case exception, MCL 3.996(106).11 691.1406; MSA The most recent pronouncement from this Court regarding the relationship 691.1406; between MCL 3.996(Í06), MSA and jailhouse suicides is Hickey, supra. case, In that the decedent was arrested for *7 drunk driving a by Michigan State University
public safety officer and placed holding in a cell at
10 Except provided act, governmental as otherwise in this all agencies liability shall be immune from tort in all cases government agency engaged wherein the is in the exercise or discharge provided ing governmental Except of a function. as otherwise act, modify in this this act shall not be construed as restricting immunity liability the of the state from tort 1, 1965, July immunity as it existed before which is affirmed. agencies obligation repair Governmental have the public buildings open maintain under their control when for public. agencies use members of the Governmental are liable bodily injury property damage resulting danger from a governmen ous or defective condition of a if the agency knowledge tal and, remedy protect actual or constructive of the defect had acquiring knowledge, for a reasonable time after failed to reasonably necessary the condition or to take action public against the the condition. Opinion of the Court Michigan to ten-foot a nine- The cell had State. along high ceiling one side. and a concrete bench supported by four a heater the bench was Above hanged himself from The decedent metal brackets. a bracket. five-part test determines held that a
This Court exception governs building public a whether the particular the narrow confines case. To fall within 1) plaintiff prove exception, must of the 2) public agency governmental involved, the is building open for use members 3) dangerous public, or defective condition the 4) governmen- building public exists, the the itself knowledge agency had actual or constructive tal 5) governmental agency alleged defect, the remedy alleged defective condition failed to period at 421. of time. Id. after reasonable building excep- duty imposed by dangers actually presented by the tion relates to recognized Hickey, pur- building As itself. promote pose public building exception of the buildings, not nec- the maintenance of safe public buildings. essarily safety, Thus, where " proper supervision short- would have 'offset ” comings configuration room,’ of the public1 building exception apply. does not Id. at plaintiff’s public rejecting claim, Hickey had that no one before this Court noted in a cell maintained ever tried to commit suicide by Michigan State, and that the cells were meant only they until could be trans- to house detainees importantly, ported facility. there to another More nothing wrong was, that cell. There was however,
something tragically wrong with the de- cedent. *8 simply unwilling Hickey, to Court was this n Opinion of the Court
allow the decedent’s intent to commit suicide to convert the heater and metal into a brackets most, dangerous and defective condition. At in public claim in that case related to safety It building. did not relate to the maintenance of a public building specific pur- safe for the use and it pose assigned. which was only question presented As Hickey, dangerous is whether case defective precinct condition existed in the seventh station Thus, it felony holding cells. is obvious controls the resolution of the build- Hickey ing claim in this even are though case facts Nevertheless, distinguishable.12 plaintiffs’ claim is more closely safety public buildings related it public building. than is to a defect As we noted in Hickey: suggest To any physical jail feature of a
cell, benign, conceivably otherwise that can be- part plan come a driven to self destruction can or exception of statute when considered in the of a of desperately one who is "dangerous
become defective condition” under the statute, simply outer crosses the limits reading reasonable the intent of that context its his- tory, purpose, wording. at [Id. 426.] Just as in Hickey, attempt Jackson’s suicide does not relate to the maintenance of a safe public specific for the use and for which purpose assigned. It safety relates buildings, and thus does not come within the narrow public building exception confines governmental immunity._ example, temporary For the cells were not detention cells. More over, the officers involved were on notice both that the cell could be dangerous, cides, attempted as evidenced numerous successful and sui particular and that this detainee was in fact suicidal. *9 Mich 420 449 Opinion op the Court
B
§ 198313claims
is whether the
The second issue
properly-
defendants were
the individual
plaintiffs
case, the
claim that
In this
dismissed.
right
adequate
process
medical
Jackson’s due
pretrial
York,
care,
detainee,
was violated.
as a
adopted
prevailing
supra,
federal
this Court
rights
pretrial
process
rule that a
detainee’s due
protected to
Fourteenth Amendment are
under the
rights guaranteed con-
extent as the
the same
Eighth
persons under
Amendment.
victed
Thus,
process
plaintiff
a due
cannot establish
showing of
indiffer-
violation absent a
"deliberate
negligence
ence”;
does not amount to deliber-
mere
Gamble,
97, 104;
429 US
ate indifference. Estelle v
(1976).
285;
L
97 S Ct
50 Ed 2d
pronouncement
from the
The most
recent
Supreme Court
what con-
United States
per-
indifference to a convicted
stitutes deliberate
son’s
rights
Eight
is Farmer v Bren-
Amendment
nan,
—;
1970;
under Amendment conditions of confinement unless inmate humane of, a substantial disregards, the official knows to inmate health or The official must safety. risk from which the inference both be aware of facts harm exists could that a substantial risk serious drawn, he must also draw the inference. be Farmer, 114 S Ct exists knowledge that a substantial risk
Simple however, A impose liability. not enough, prison must officials acted plaintiff also show indifference: with deliberate *10 addition, of prison actually officials who knew safety may to inmate health or a substantial risk liability they responded if be found free from risk, ultimately if harm reasonably to the even prison duty was not averted. A official’s under the Eighth Amendment is to ensure "reasonable it safety.” puts duty . . . Whether one in terms of officials who act indifference, prison deliberate reasonably cannot be found liable under the Cruel [Farmer, 114 and Unusual Punishments Clause. S omitted, emphasis Ct 1982-1983. Citations added.] assume, review, given We the standard of that the individuals involved in case subjectively light knew that Jackson was a suicide risk his Dr. prior attempt diagnosis and the Chen. We further assume that knew it was they risky place treat him as a "routine” and him prisoner into a cell overhead felony exposed bars. is fatal claims these plaintiffs’ What individuals, however, did, that they is fact fact, light act of the risk. reasonably14
For as soon as the officers realized example, reasonably goes saying It if one acts one is not without Nevertheless, acting reasonableness with deliberate indifference. Thus, may theoretically possible that one act not the standard. unreasonably deliberately but still not be indifferent. Opinion op the Court they tendencies, sent him to see Jackson’s suicidal psychiatrist. Lakeemba, who And when Officer attempt, suicide learned knew of Jackson’s earlier lockup, he imme- had returned to the that Jackson diately Sergeant was informed Keifel. Jackson although regu- every minutes, checked fifteen required inspections prisoners lations visual every thirty minutes. duty
Similarly, when Sheridan came on that Jackson had returned to the discovered lockup, been superior immediately his offi- he informed Sergeant immediately cer, Elliot. Elliot told Sheri- arrangements dan to make to have Jackson re- lockup. made the ar- moved from the rangements Sheridan quickly went back to check on hang- only him Jackson at about 3:35 ing to find p.m., Only five minutes had from the overhead bars. passed the time Keifel last checked Jack- between hanging. son and Sheridan found him When Sheri- promptly him, down, dan did find he cut Jackson emergency cpr and Keifel administered while help medical was summoned. prison Eighth duty
A official’s under the Amend- correspondingly ment, the Fourteenth Amend- nothing safety,” ment, is to ensure "reasonable duty properly case, more or less. In this *11 discharged. subjectively a These officers knew of safety, they substantial risk to Jackson’s acted light reasonably imagination By of the risk. no stretch of the disregarded they can be said to have a may negligent it known risk.. While treat Jackson as a routine have been
prisoner place him exposed negligence bars, a cell overhead not deliberate indifference. The actions of these beyond any officers show they reasonable doubt deliberately were not indifferent Jackson’s serious medical needs. Jackson v op the Court
C
appeal
presented
in this
issue
The final
properly
disposition
summary
denied
whether
governmental
city.
A
claim
on the
entity
a
§ 1983 on
under
found liable
cannot be
liability
theory.
superior
Rather,
respondeat
such
pursuant
injuries
only
imposed
inflicted
can be
"policy
governmental
Monell
or custom.”
to a
City, 436 US
Dep’t
York
of New
Services
of Social
(1978).
2018; 56 L Ed 2d
Ct
694; 98 S
link between
an affirmative
There must be
policy
particular
constitutional
or custom and
alleged policy
alleged.
custom
violation
"moving
the constitutional
force” of
must be
liability.
694.
Id. at
in order to establish
violation
demonstrating
may
policy
shown
be
Such a
indifference”
manifested a "deliberate
that the
pretrial detainees.
needs of its
to the medical
378, 391; 109 S
Harris,
Canton,
489 US
Ohio v
of
Ct
(1989).
omission,
Acts of
1197;
This municipal policy link the causal between lish Justice O’Connor violation. and a constitutional concurring in her on this standard elaborated opinion in Canton: establish that plaintiff can Where § put them on city policymakers available
facts
particular
notice that
or constructive
actual
omission
in the
to result
substantially certain
is
of the constitutional
rights of their citi-
violation
munici-
it be said
zens[,] [o]nly then can
"
to follow
choice
made
'a deliberate
pality has
*12
Opinion op the Court
among
. . .
course of action
from
various
” [Id. 396.]
alternatives.’
at
policy
originate
addition,
In
or custom must
possessing
policy-
with the decisionmaker
making authority
final
respect
to the omission or
Cincinnati,
commission at issue. Pembaur v
(1986)
469, 482;
1292;
US
(plurality opinion).
106 S Ct
tensive with the "deliberate indifference” neces-
sary
prove
pretrial
an actionable violation of a
process right
adequate
detainee’s due
medical
requires
objective
care. The
intent,
former
an
requires
subjective
while the latter
Farmer,
one.
Applying principles these to the case at bar plaintiffs leads us to conclude that have made a prima showing process facie that Jackson’s due rights may have been violated and that the viola- city policy tion resulted from a of inaction that may evidence a deliberate indifference to those rights. Viewing light record most favora- plaintiffs, ble to the we conclude that objectively precinct that the knew seventh station dangerous they cells could be when housed sui- cidal detainees. The record shows that over a five- there, year period attempted suicides, were 128 majority having vast of which occurred in cells Brickley, C.J. precinct exposed the seventh overhead bars. attempts *13 one and thirteen alone there were station years detention. before Jackson’s in the four death policymakers15 city’s on no- Therefore, were the modify ex- the cells with to that the failure tice posed substantially certain overhead bars rights the constitutional in the violation of result persons who were to be suicidal known of those placed spite their suicidal in those cells allow a rational would The evidence tendencies. city policymakers that of fact to conclude trier a course of choice to follow "a deliberate made among . . alternatives” . from various [in]action deliberately correspondingly they were and that rights detainees the of suicidal indifferent precinct station. housed in the seventh documentary Having evidence, and reviewed the drawing inferences from that evi- all reasonable favor, the we affirm in the nonmovant’s dence Appeals. The case of the Court decision remanded proceedings consis- to the trial court opinion. with this tent JJ., Weaver,
Boyle, Riley, Mallett, con- J. Cavanagh, with curred dissenting (concurring part C.J. Brickley, city argues plaintiffs that the have not shown The that the felony (i.e., rectify problem the cells failure to the with omission station) originated precinct from a decisionmaker in the seventh what, who, exactly authority. this policy-making that We note final is, in the first of law to be decided decisionmaker instance ruled on the issue. plaintiffs yet by case has not The trial court in this the trial court. Therefore, purposes enough for our that it is personnel” attempted allege to have the that "command authority covered, "by attempt sole was halted that bars but William Hart.” of Police Chief Mich Brickley, C.J. part). I with the agree majority individ- ual are judgment defendants entitled to as a mat- law, ter of and that the plaintiffs have demon- strated issues of material fact § claim of Detroit. 42 1983. I USC however, disagree, with the majority’s conclusion plaintiffs failed to state a claim under public building exception. public building exception to the general tort
liability immunity enjoyed by governmental agen- provides: cies agencies obligation have the Governmental
repair control when public buildings and maintain under their open for use members of the public. injury agencies bodily Governmental are liable for property damage resulting from a dan- *14 gerous the tive time after public building or defective condition of a if governmental agency had actual or construc- and, knowledge of the defect for a reasonable
acquiring knowledge,
remedy
failed to
thé condition or to take action reasonably neces-
sary
protect
public against
the condition.
691.1406;
3.996(106).]
MSA
[MCL
The only
presents
regard
issue this case
this exception is whether
the condition of the cell
in which Jackson was detained was dangerous or
defective. The
majority analyzes
issue solely
(On
Hickey v Zezulka
reference
Resubmis-
sion),
408;
(1992),
439 Mich
In Hickey, the decedent was arrested for drunk in a. driving placed holding cell at Michigan Brickley, C.J. University by Department of Public State Safety. supported by heater, four
The cell had a one and two metal brackets that extended between hanged himself inches from the wall. The decedent from one of the brackets. plaintiff Hickey held that had
The Court building excep- not stated a claim under the tion. The essence of that majority: opinion quoted by the jail suggest any physical To feature benign, conceivably cell, come driven to self destruction can become or defective condition” under exception of statute when tory, be- otherwise that can desperately part plan of a of one who is "dangerous simply statute, crosses the outer limits reading any the intent of that reasonable considered in the context of its his- purpose, wording. [Hickey,supra 426.] at I differences between believe that the factual reasoning Hickey and the instant case make this inapplicable here. Department
The cells at the MSU of Public specifically temporary Safety were intended detention; no one had ever held there for been the decedent more' than a few hours. Before attempted Hickey, no one had ever or committed of the cells. Id. at suicide pur- generally agreed contrast, assigned pose was as for which Jackson’s cell was general prearraign- a detention area for Detroit’s ment detainee *15 population. plaintiff ar- The has agree, invariably among gued, and I that population prisoners with deficiencies there are to mental illness or substance abuse who related starkly attempt demonstrated suicide. This is will by majority, by which show the cited the statistics attempts large were number of suicide 420 Mich by Bkickley, C.J. lockup years facilities in the in detainee made attempted Ante at 424- suicide. before Jackson’s integral pur- Hickey, an 425. Unlike the cells pose was to house used, for these cells were which mentally potentially people ill and sui- who were cidal. building dangeroús or is defective
Whether of the uses or must determined on the basis be assigned. specifically activities for which supra Michigan jurisprudence pro- Hickey, at 425. building vides that if a feature of a is unsafe for people designed serve, who the under feature can be defective building exception injury if even itself was injured. part by the actions of the In de caused (On Remand), 179 Sanchez v Genoves-Andrews (1989), plaintiffs’ App 661; NW2d hospital. patient psychiatric in a decedent was hanged from overhead The decedent in himself bars hospital bathroom. Court stated: assigned Given that the rest room was for use potentially patients hospital, suicidal at a mental dividing placed this condition bars over the [the potentially dangerous in and bathroom was stall] at of itself. [Id. 669.] The Court held that a of fact existed condi- whether the bars were a defective tion. Id. at The de Sanchez decision was cited approval by Hickey at 423. this Court Similarly, Lockaby Wayne Co, 65; 406 Mich (1979), plaintiff placed had been NW2d designated impaired mentally in a cell for individ- subsequently paralyzed uals. He ing himself strik- Although his head cell wall. specifically designated mentally cell im- paired persons, padding pre- it lacked and other *16 Jackson by Opinion Brickley, C.J. mentally individ-
cautions tailored to the
unstable
incarcerated. This Court held that
uals who were
the
plaintiff
under the
stated a valid claim
despite
inju-
building exception,
the fact that his
self-inflicted. Id. at 76-77. See also Bush v
ries were
Schools,
716;
Another between Hickey and the instant case is the method of hanged Hickey The decedent in him- destruction. self from an attaching inch-long extension, metal 416. In heater to the wall of his cell. Id. at hanged case, the decedent himself on overhead easily cell, bars his reachable and often used past attempts. for suicide paradigmatic There is a difference between a Hickey, person case like in which a who wants to way so, kill himself searches for and to do finds easy and a case in which an method of self- presented person destruction is for an interested categorized properly I use. submit this case is as type. knowledge the latter With full of the mental present among infirmities certain to inhabited the cells of the seventh those who be
precinct, overhang equipped of Detroit the cells with easily bars converted into a scaffold. merely not, therefore,
This is a case concerned buildings, safety majority as the suggests. injury Mr. was occa- Mich Brickley, C.J. part by physical large condition of sioned Dep’t of Mental Reardon v itself. See (1988). Health, 413; 424 NW2d 430 Mich might not a defective a rail be A catwalk without argue itself, no one would condition in and of but *17 specifically point intended for use if it was cell, was Thus, Mr. Jackson’s which the blind. designed contemplat- might people be to hold who ing self-destruction, This is defective. was also painfully the fact that of the evident from lockups attempts police in Detroit between suicide lockups percent in occurred 1978 and exposed overhead bars. with presented such an Mr. Jackson’s cell Because destruction, for his because obvious mode mentally designed part hold unstable people Jackson, I would hold that like Mr. plaintiffs have at least demonstrated danger- regard there existed fact to whether cell under the or defective condition ous respectfully building exception. I therefore part majority. from the dissent Levin, J., C.J. Brickley, concurred