Kelli Ann Grabow v. Macomb Cnty.

because damages cannot stand that 41B waived award Employees argue determining erred in the district court immunity by asserting sovereign its qualified immuni- Davis was not entitled summary-judg- in its primarily defense vacate the award of ty. Accordingly, we have never held that reply ment brief. We the district court damages. remand to sovereign immunity in We failure to raise entitlement se Employees’ to determine the summary-judgment per brief opening Rather, we affirm the equitable relief. And properly fo- constitutes a waiver. 41B judgment holding that litigation district court’s the whole of 41B’s cusing on immunity. sovereign entitled to that it did not clear- was conduct demonstrates immunity sovereign its ly intend to waive jurisdiction. consent to federal

and sovereign first raised the issue of

41B complaint

immunity in its answer de in its amended affirmative again Rúle 41B did not file a

fenses. While

12(b)(1) sovereign motion to dismiss neither did it file a

immunity grounds, on the merits. Less

motion to dismiss later, months 41B filed its sum

than two brief where it failed to mary-judgment GRABOW, Individually and Kelli Ann immunity. Three sovereign raise its Representative of the Es- as Personal response, her weeks after Barachkov filed Prochnow, deceased, tate Kristina sovereign immunity 41B reasserted its Plaintiff-Appellant, Thus, while 41B did not file a reply. its to dismiss and did not raise its motion summary-judgment initial

immunity its MACOMB, political OF COUNTY brief, neither does 41B’s somewhat belated Michigan, Subdivision State immunity appear to sovereign assertion of Amy Franks, jointly Deputy strategic 41B raised sover be a decision. severally, Defendants-Appellees. eign immunity summary judgment in its No. 13-2609. and, it briefing importantly, raised before the merits the district court had ruled on Appeals, States United Court litigation of the case. 41B’s conduct was Sixth Circuit. inconsistent, and it can neither unfair nor Aug. dilatory said that its assertion of not be immunity was but a tactical decision. sovereign Ku, 41B has

C 322 F.3d at 435. f. its consent to federal clearly

not indicated and thus has not waived its

jurisdiction

sovereign immunity.

IV.

Although correctly the district court

found that there was sufficient basis jury Employees to conclude that the just-cause employees,

were in fact WHITE, DONALD,

Before: *, Judges. O’MALLEY Circuit OPINION O’MALLEY, Judge. Circuit This case involves Kristina Prochnow’s suicide while an inmate at the Macomb (“the County jail jail”). Plaintiff-Appel- Grabow, Kelli Ann personal repre- lant as estate, brought sentative of Prochnow’s County suit Defendants-Appellees (“the County”) and Deputy Macomb Amy Franks under 42 U.S.C. * Circuit, O’Malley, sitting by designation. The Honorable Kathleen M. Circuit for the Federal Judge Appeals for the United States Court of pregnant. was status because she law, the de- cal alert alleging that and state with diagnosed had been in- Prochnow also deliberate

fendants-appellees displayed disorder, had depression bipolar medical serious to Prochnow’s difference outside court on one occasion attempted The district custody. while in needs in jail in favor of the summary judgment granted ultimately determin- defendants-appellees, the Grabow failed to demonstrate

ing that B a con- necessary for subjective knowledge place cov- County regulations The has Eighth under the violation stitutional processing. See ering prisoner intake and For the follow- Amendments. Fourteenth regulations, the intake id. at *2-4. Under reasons, AFFIRM the district ing we if duty to determine have a officers judgment. court’s or of immediate medical inmate is in need If inmate re- treatment. the psychological I treatment, the inmate is emergency quires jail; at the the trans- accepted not to be A inmate to a officer is to take the porting boy August On taken into the If the inmate is hospital. friend, the D’Aquila, contacted Nicholas officer must jail’s custody, transporting the victim of do claiming he was the police, along Detention Card” present the “Jail “[tjhere was and that mestic violence receipt of Upon the inmate. potential with Gra something wrong with [Prochnow].” inmate, immediately the intake officers the 12-10105, Macomb, No. Cnty. bow her to the inmate and assess pat-down (E.D.Mich. *1 Oct. 2013 WL require special if she will classi- determine 2013). arrived, Pro police the When minimum, requires this the fication. At attempted aggressively chnow acted complete an Initial Classifica- officers causing police police, run from the Assignment form tion/Temporary Cell scene, arresting At the her taser her. of the inmate questioning based on direct Card,” Detention completed officer a “Jail her visual observations of demeanor. question to a on the card answering “No” Classifieation/Temporary Initial Cell The verbalized prisoner if the had that asked questions re- Assignment form includes six officer arresting thoughts suicide. lating to suicide risk: County to Macomb then took Prochnow (1) position of re- Does inmate hold a jail. in the communi- spect prominence or had been incarcer- previously Prochnow shocking in na- ty or is the offense separate jail on at least twelve ated at ture? incarceration During prior occasions. (2) unusual home or you Do placed Prochnow observa- officials family we should know problems expressed an inter- tion status because she about? twenty-five hours est in self-harm. After (3) in a mental you Have ever been observation, officials determined under had care? psychiatric institution or a suicide longer Prochnow was no that (4) attempted ever or contem- you Have general popu- to the threat and moved her Where? plated suicide? When? lation, month she remained for a where contemplating suicide? you Are now Prochnow was last

without incident. suggest Does the Inmate’s behavior jail in November booked into the a suicide risk? placed special her on medi- where officials 13, 2011, these the initial classification August Id. at *5. As of determination the officer regulations require did not the intake officers and health services pat-down staff, detailed, also interview performs who a more primary classifica- Initial the inmate for Classifica- analysis by tion a Classification Officer will Assignment form.1 tion/Temporary Cell seventy-two occur within of arraign- hours placed High ment. No inmate under complete the intake officers Once Close Observation had committed suicide As- Classification/Temporary Cell Initial jail prior while at the to Prochnow’s incar- form, booking offi- signment computer ceration. Four inmates in the the jail’s cer enters the information into general population committed system, and then computer “Offendertrak” year proceeding the Prochnow’s suicide. general popu- the inmate to either assigns a mental health specific lation or observa- All corrections deputies receive suicide assigns tion status. The officer the inmate training prevention during Corrections observation based heightened status Academy. This includes instruction on need, pending charges, on inmate current identifying warning signs and risk factors status, risk, legal predatory inmate current jail for suicide and specific discussion of health, physieal/mental and suicide risk policies prevent Depu- enacted to suicide. If the inmate factors. demonstrates receive at ties must least one hour of or a desire or in- high risk for self-harm prevention training refresher suicide each suicide, tent to commit the officer refers year. All staff members are trained in health staff and the inmate to the mental first aid. CPR and places the inmate one of three observa- (1) Observation,”2 if “High tion statuses: C (2) suicidal; actively the inmate is “Close Observation,”3 actively if the inmate not Prochnow arrived at the at approxi- is mately August Deputies 2:25 PM on 13. history suicidal but has a recent of suicide Caution,” Beverly if attempts; Amy pro- “Suicide the Puchovan and Franks has been suicidal or indicated cessed Prochnow at intake. Puchovan and inmate in- past. frequently together intent to harm themselves in the Franks worked intake, processing, of the health take with Puchovan at the After a member ser- front window as the initial intake officer prisoners vices staff screens all for both computer If at the stations be- physical and mental health concerns. and Franks computer the hind the front window as the prison- the health services staff deems time, risk, booking er the member officer. Over Franks and to be suicide staff an informal places High developed “good the inmate in a Observation Puchovan First, system screening. for intake go” cell with a “Suicide Caution” status. After every surrounding An officer observes the inmate at least 1. After the events Prochnow’s 2. Now, death, jail updated regulations. the its High 15 minutes under Observation status. who comes into contact with the first officer inmate, usually performs the the officer who every 3. An officer observes the inmate at least pat-down, perform the must the initial screen- 30 minutes under Close Observation status. ing questions provided on the based on the who is an active risk would An inmate Classification/Temporary Assign- Initial Cell not be under Close Observation be- ment form. That officer will fill out the form cause, Puchovan, per "in Observation[ ] Close pass hand in front of the inmate and then every they they need to kill them- tool an- the form and the Jail Detention Card to 66-5, PagelD Doc. 1497. selves.” officer, other who enters the information into computer the network. questions on of the six suicide risk upon inmates arriv- each patted-down Puchovan Then, been “no.” Pucho- the form had for contraband. al to search variations of three van asked inmate officer, booking Franks computer As the (1) Have screening questions: required jail’s sys- Offendertrak had access to the (2) Have jail previously?; to this you been tem, to view an which she could search suicide?; and Do you attempted ever history jail. at the Prochnow’s inmate’s yourself to hurt you you feel like want included an alert profile Offendertrak If the inmate answered “no” to now? on her suicide watch status based informed questions, last two Puchovan claims she did not see the alert Franks “good go” that the inmate was Franks suggests record nothing Franks would then and not a suicide risk. profile would have been visible Classification/Tempo- complete the Initial or that Franks at- booking, to Franks at assign rary Assignment Cell form profile. to access Prochnow’s tempted without di- general population inmate to booking that when a offi- testified rectly interviewing the inmate. If the in- information from an inmate’s cer enters “yes” to either of Pucho- mate answered Card, computer gener- Jail Detention questions, van’s final two Franks would form, form, property ates the intake a and Observation, High place the inmate on testify not mugshot; she did inquiry. without further Franks and again an inmate’s Offendert- computer generates “good go” sys- this Puchovan had used in- profile any rak “alerts” from an supervisors, in front of but were never tem prior point, mate’s visits. More to the impermissible their was and told conduct Franks testified that she did not look at disciplined. were never previous from visits at records Prochnow’s intake, and she denied the ex- Prochnow’s Upon jail, Prochnow’s arrival at the Pu- any procedure intake where istence of and patted-down chovan Prochnow asked booking go through “folks in would ... [an earrings, Prochnow to remove her neck- see what previous jail records to inmate’s] lace, belly ring. and button Puchovan happened to her the last times that had screening the three then asked Prochnow 66-4, had been Doc. Pa- [t]here[.]” she Prochnow admitted that she questions. gelD 1467. prison multiple had been to the before on intake, occasions, never After Prochnow’s Prochnow met but said that she had not feel like she with nurse Michelle Mason. Correctional attempted suicide and did (“CMS”) employed Ma- at that time. Pu- Medical Services wanted to hurt herself that, jail. while that Prochnow was son at the Mason testified chovan told Franks screening of the in- “good go,” assigned performing and Franks Pro- her initial mate, glance she would at the Initial Clas- general population holding chnow to a cell Assignment pat- sification/Temporary PM. Franks watched Puchovan Cell at 2:34 form, perform entirely but would inde- recogniz- down Prochnow and admitted to inmate. Pro- previous pendent Prochnow’s assessment of the ing Prochnow from prior diagnoses told Mason of her jail. incarcerations at the Franks did not chnow disorder, as well as speak depression bipolar with Prochnow at time between and feelings hopelessness due to the present when Prochnow arrived at and this, arrest. Prochnow also informed Mason of Despite when Franks’s shift ended. attempt. prison her 2010 suicide completed Franks the Initial Classifiea- Under in- those answers should have tion/Temporary Assignment policies, form Cell an imme- Mason to recommend dicating gave prompted that the answer Prochnow referral, instead, prior diate mental health but offense where Prochnow failed to Mason that a mental health appear sentencing. recommended for At the hearing, the $10,000 judge imposed evaluation of Prochnow occur within' seven bond and remand- days ten-day her on a detox custody ed Prochnow to for at least two protocol suspected drug recent use. more spoke weeks. Prochnow to a friend Mason did not believe that Prochnow about her son at the hearing planned watch, needed to be on suicide but recom- to meet with the family friend and a mem- that prison mended officials monitor Pro- during ber visitation later that evening. depression. chnow for suicide risk and hearing, prison After the officials re- evaluation, After her medical prison-offi- turned Prochnow to her cell. An inmate cell, placed Prochnow into holding cials testified that Prochnow appeared thin and where she vomited and had diarrhea that having problems was moving because of night. pain throughout body. her At 3 PM that

afternoon, Prochnow complained to Mason D that she had a rash. Mason promised to look at the rash after a break. While August On again Franks break, Mason was on hanged Prochnow worked anas intake officer. testi- herself her cell. A deputy found Pro- that, arrival, upon likely fied she reviewed PM, chnow at approximately 3:22 pris- paperwork and noticed that transported officials her to a local hos- put Mason had Prochnow on detox proto- pital, days where she died two later. this, col. Based on Franks moved Pro- chnow to a holding different cell with beds. County Macomb Sheriff Anthony Wick- time, spoke Franks with Prochnow at the ersham testified that the County investi- and appeared good spir- Prochnow to be in gated the circumstances of Prochnow’s its, even making jokes about items she had County death. The determined that stolen from Wal-Mart. Franks testified form, Franks falsified the intake but nei- that any signs Prochnow did not show ther Franks nor Puchovan disciplined. was physical problems August or mental on Jail Administrator Michelle Sanborn later placement testified that Prochnow’s protocol, Under the detox CMS staff general population likely inappropri- was continued to evaluate They Prochnow. ate. took her temperature, pulse, and blood pressure at every least twelve hours. An- F

other inmate testified that Prochnow was distracted, but depressed did not act and Grabow, personal as representative of require did not medical attention. estate, brought against suit County.4 Franks and the Grabow assert-

E ed against claims under U.S.C. August Franks did not work on County 2011. Franks and the for deliberate in- Officers took Prochnow to a scheduled against County difference and for fail- hearing morning at County Macomb ure to train. Grabow also asserted state hearing Circuit Court. This law gross negligence against involved claims Hedke, brought against variety Kelly Deputy Gregory 4. Grabow also suit linski voluntarily of other defendants. Grabow dis- Shumacher. Grabow settled the claims CMS, Mason, against Anthony against missed the claims Sheriff Michelle clini- CMS Wickersham, employees Stephanie CMS Catherine Sta- cian Harmon. (6th Kolt, Defendants-Appellees Franks.5 v. 586 F.3d Cir. Co. 2009). judgment County and the moved for construe the evidence in the We pleadings under Federal Rule of Civil light most favorable to the nonmovant and 12(c) summary judg- Procedure and for draw all reasonable inferences in the non- court ment on all counts. district Dye movant’s favor. the Rac- Office of granted defendants-appellees’ motion on Comm’n, (6th 702 F.3d ing Cir. Grabow, 5816544, at all counts. 2018 WL 2012). Summary judgment granted bewill claims *16. On the deliberate indifference no “if the movant shows that there is Franks, against the district court held that any as material fact and genuine issue genuine Grabow did demonstrate a issue of judgment the movant is entitled to as a objective prong material fact on the 56(a). matter of law.” Fed.R.Civ.P. We analysis any failed to issue of but raise “whether the evidence must determine subjective material fact as to Franks’s presents disagreement a sufficient to re- knowledge of a substantial risk of Pro- quire jury submission to a or whether it is committing chnow suicide or as party prevail so one-sided that one must as causal connection between Franks’s ac- a matter of law.” Nat’l Bank & First tions and Prochnow’s eventual suicide. Id. (In Farm, Trust Co. Brant re Calumet against at *13-15. For the claims (6th Cir.2005) Inc.), 558-59 that, County, the district court held be- Inc., (quoting Liberty Anderson v. Lobby, cause Grabow failed to demonstrate an 242, 251-52, 477 U.S. S.Ct. underlying constitutional violation (1986)). L.Ed.2d 202 If the nonmovant’s Franks, against County the claim must “merely evidence is colorable or is not Finally, be at dismissed. Id. *15. significantly probative, summary judgment district court dismissed the state law Anderson, may granted.” be U.S. claims Franks because Grabow (internal 249-50, 106 S.Ct. 2505 citations present creating genu- failed to evidence omitted). The nonmovant “must do more ine issue of material fact that Franks was simply than show that there some meta- is proximate cause of Prochnow’s suicide. physical doubt as to the material facts.” Id. at *16. Matsushita Elec. Indus. v. Zenith Ra- Co. jurisdiction appeal We have over the 574, 586, Corp., dio 475 U.S. 106 S.Ct. (2012). § under 28 U.S.C. 1291 1348, (1986). 89 L.Ed.2d 538 analysis We review the district court’s II state law de novo. Liberty Rawe v. Mut. The granted district court both the de- Co., (6th 521, Fire Ins. 462 F.3d 526 Cir. 12(c) fendants-appellees’ Rule motion for 2006) Russell, (citing Regina Salve Coll. v. judgment pleadings on the and the motion 225, 231, 1217, 499 111 113 U.S. S.Ct. for summary judgment under Rule 56. Id. (1991)). L.Ed.2d 190 at *16. Because the trial court considered pleadings issuing evidence outside of the Ill judgment, appeal its we characterize this A. Deliberate Indifference Claims under reviewing summary as one the propriety Eighth the and Fourteenth judgment defendants-appellees for the Amendments this record. Grabow asserts claims under 42 U.S.C. grant

We review the district court’s § summary judgment Longaberger against de novo. 1983 both Franks and the Coun- claims, gross 5. Grabow had also asserted state law district court dismissed those negligence County. appeal claims the The Grabow does not that dismissal.

307 liability imposed upon prison indifference to Pro- officials ty deliberate In the they deliberately serious medical needs. where are so indif- chnow’s summary judgment of a motion for context the pris- ferent to serious medical needs of 1988, regarding a claim asserted under unnecessarily wantonly oners as to a plaintiff genuine (internal “must demonstrate pain.” quotation inflict marks following material fact as to the omitted)). issue of Prison officials violate an in- (1) deprivation of a two elements: Eighth mate’s and Fourteenth Amend- right by secured the Constitution or laws right adequate ment to medical treatment (2) depri- of the United States and that the (1) [is], deprivation alleged when: “the ob- acting un- person vation was caused jectively, sufficiently serious” such that the of state v. der color law.” Miller Calhoun inmate “is incarcerated under conditions (6th Cir.2005) 808, Cnty., 408 F.8d harm”; posing a substantial risk of serious (internal omitted). quotation marks prison subjectively official dem- onstrates “deliberate indifference to in- Amendment, Eighth Pursuant to the Farmer, pris- safety.” “the treatment a receives in mate health or prisoner U.S. (internal 834, quotation on and the conditions under which he is at 114 S.Ct. 1970 omitted). subject scrutiny.” Helling confined are to marks and citations 25, 31, McKinney, v. U.S. S.Ct. “sufficiently A serious” medical need re (1993). 2475, Eighth 125 L.Ed.2d 22 quires plaintiff to show that in “[the apply pre- Amendment itself does not to is incarcerated under conditions im mate] Prochnow, trial detainees such as but posing a substantial risk of serious harm.” analogous Fourteenth Amendment grants (internal Miller, 408 F.3d at 812 citations rights adequate medical treatment omitted). An “psychological inmate’s pretrial City detainees. Revere Mass. may needs constitute serious medical 244, 239, Gen.Hosp., 463 U.S. 103 S.Ct. needs, especially they when result in sui (1983). 2979, 77 L.Ed.2d 605 Prison offi- Comstock, cidal tendencies.” cials must “take reasonable measures to plaintiff objective meets the inmates,” guarantee safety of the component Eighth Amendment Brennan, 825, 832, 114 Farmer v. 511 U.S. analysis by demonstrating that the inmate 1970, (quot- 128 L.Ed.2d 811 S.Ct. during exhibited suicidal tendencies his or Palmer, ing Hudson v. 526- U.S. “posed strong he her detention or that (1984)), 104 S.Ct. 82 L.Ed.2d 393 of another attempt.” likelihood right have a because inmates constitutional Perez, 424; 466 F.3d at Linden v. Washte care, adequate medical Estelle Gam- (6th Cnty., Fed.Appx. naw ble, 429 U.S. 97 S.Ct. Cir.2006). (1976). L.Ed.2d 251 Inmates dtmot have “a of Deliberate indifference is state Eighth right “to be an Amendment blameworthy negligence.” mind more than tendencies,” correctly screened for suicidal Farmer, 835, 1970; at 114 511 U.S. S.Ct. officials alerted “prison but who been Estelle, 104, 106, 285; 429 U.S. at 97 S.Ct. prisoner’s to a serious medical needs are Vadlamudi, Reilly see also v. 680 F.3d obligation under an to offer medical care to (6th Cir.2012) (“Deliberate 617, 623-24 in- McCrary, v. prisoner.” such a Comstock (6th by obduracy is characterized or 693, Cir.2001); difference 273 F.3d 702 see also 416, on predicated wantonness —it cannot be Cnty., Perez v. 466 F.3d 423 Oakland (6th Cir.2006) (“[T]he inadvertence, negligence, good faith er- Eighth Amendment (“A Perez, ror.”); finding 466 F.3d at 431 only if it is tanta- prohibits mistreatment satisfy the deliber- punishment, negligence mount thus courts of does not and 308 standard.”). amounted to a deliber quate precautions

ate indifference Deliberate indifference, however, to the serious ate indifference decedent’s require does not Detroit, v. Gray City medical needs.” very purpose “acts or omissions for the of of (6th Cir.2005) 612, (quoting F.3d 616 399 causing knowledge harm or with that harm Salem, 232, City Barber v. 953 F.2d Farmer, 885, will result.” 511 at 114 U.S. of (6th Cir.1992)); 239-40 see also Jerauld v. Supreme 1970. The has con- S.Ct. Court (6th Cir.2010) Carl, 970, Fed.Appx. 405 976 cluded that “deliberate indifference to a (“[T]he inquiry central is whether the de pris- risk of serious harm to a substantial fendants identified suicidal [the inmate’s] recklessly the equivalent oner is of disre- deliberately tendencies and were indiffer garding that risk.” Id. at 1994 WL them.”); Cooper Cnty. ent to Washte 237595; Galloway see also v. Anuszkiew- (6th Cir.2007) naw, Fed.Appx. 222 470 (6th Cir.2013) icz, Fed.Appx. a an (finding that claim that official (holding that a deliberate indifference is “should have known that was [an inmate] fault,” “stringent requiring standard of suicidal” was “insufficient for deliberate “disregarded that the official a known or claim”). indifference consequence obvious action” (quot- his — U.S.-, Thompson, juris Under our deliberate indifference ing Connick v. prudence, plaintiff we have held that a L.Ed.2d 417 S.Ct. deliberate demonstrated indifference suffi (2011))). cient to overcome a summary motion for indifference, prove To deliberate (1) when, judgment example: pris plaintiff allege must facts that show “the on official who the inmate on sui being subjectively perceived official sued watch cide failed to review medical records facts from which to infer risk substantial psychological and an tests administered to prisoner, to the that he did fact draw inmate, speak did not to officers who ar inference, disregard and that he then ranged psychological consults for an in Comstock, ed the at 703. risk.” F.3d mate or daily observed inmate on a actually officials who knew of a “[P]rison basis, speak psychologists did not with who safety substantial risk to inmate health or inmate, previously met with an may liability they be found free from if cursory asked the inmate a few questions risk, responded reasonably to the even if removing before the inmate from close ultimately the harm was not averted.” Comstock, observation, 707-10; Farmer, 1970; 511 U.S. at 114 S.Ct. prison official actual knowledge had Linden, Fed.Appx. see also at 417. past attempts, inmate’s knew An knowledge official’s of a sufficient risk that the inmate’s suicidal tendencies were question subject “is a of fact to demonstra conditions, kidney provoked by his ways, tion in the including usual inference ignored crying, complaints the inmate’s Farmer, from circumstantial evidence.” kidney pain, gestures and other suicidal 842, 114 atU.S. S.Ct. 1970. death, Sillman, night of his Schultz cases, In the context of (6th inmate suicide Cir.2005); Fed.Appx. 401-03 proper inquiry concerning liability “the prison official moved an inmate a City employees and its in both their from watch though even the official official and capacities individual under attempt knew inmate threatened and ... whether the decedent is[] ed suicide on several occasions within the strong showed a jail previously likelihood that he same in the and had [s] month attempt would to take own life in placed [her] been on behavior and suicide during multiple prior such manner that failure to take ade- watches incarcera- Perez, jail, at the same 466 F.3d at idence that Franks tions inferred substantial safety, 424-26. risk to Prochnow’s Franks did in inference, fact draw this and she disre- hand, we On the other have held Comstock, garded the risk. See to overcome a motion plaintiff failed minimum, at At a Grabow asserts summary when the judgment plaintiff verify” that Franks “refused to facts about demonstrated, only for example that Prochnow which Franks had reason to sus- destroyed in yelled, the inmate items his pect were true. See id. cell, cell, pain, banged had chest on his single but no official observed all of prison disagreed district court with Gra- actions, 614-16; Gray, 399 these F.3d arguments, finding bow’s that Grabow prompted the inmate’s behavior failed to create a genuine issue of material prison psychologist to issue a suicide regarding subjective fact Franks’s knowl- blanket and order precautions observa- edge of Prochnow’s serious medical condi- minutes, every the psy- tions fifteen but tion sufficient to show deliberate indiffer- chologist pre- failed to take the additional Grabow, ence. 2013 WL at *13- directly warning jail caution of staff 15. Franks working jail was not at the suicidal, might that the inmate be Gallo- 2008 when Prochnow had been way, Fed.Appx. at 331-35. suicide watch while there. Prochnow also plaintiff must ei- demonstrate spent days less than two under suicide subjective knowledge, directly ther or indi- spending watch the subsequent rectly, or “merely that the official refused month of her general pop- incarceration in verify underlying strongly facts that he ulation without incident. Prochnow had suspected to be true” to overcome a mo- been also incarcerated on three subse- summary judgment tion for on a deliberate occasions, quent again all without incident. Comstock, indifference claim. 273 F.3d at The “only district court found that Farmer, (quoting 511 U.S. at 843 n. thing Franks knew was that Prochnow was 1970). 114 S.Ct. brought jail arrested and to the on multi- ple past, occasions in the and that she was B. Deliberate Indifference currently for domestic violence.” Claims Id. at *14. The district court found this an argues Grabow that she need upon insufficient basis which to find that per knowledge, demonstrate that Franks should have Franks had even subjective recognize strong suspicion, ceived facts sufficient to Pro suicidal Prochnow’s pronounced chnow’s suicidal tendencies. tendencies. The district court also found that, we proposed approach, assuming arguendo Under Grabow’s even that Franks following subjectively perceived should consider the circumstan sufficient facts re- highly garding past tial evidence to be relevant: Franks suicidal tenden- cies, in recognized prior presented Prochnow from their Grabow no evidence that teractions, previously regarding Prochnow had been Franks drew inference Pro- jail, under suicide watch at the Prochnow chnow’s current medical needs or disre- falsified the Initial Classification/Tempo garded an obvious inference about those form, rary Assignment Though Cell and the alert needs. Grabow claimed that system a face-to-face the Offendertrak noted that Pro Franks’s failure to conduct chnow was once considered a suicide risk. interview was sufficient circumstantial evi- that, proposes knowledge, Grhbow based on this evi dence of her the district court dence, there ev- concluded that Franks’s failure to conduct is sufficient circumstantial did regulations The prison at 431. by Mason’s F.3d was remedied

the interview all six that Puchovan ask require not evaluation, where Mason medical later during pat-down screening questions suicide risk. Franks was not a found that the face- perform could Franks that undis- court found Finally, the district Also, regulations interview. to-face that, if even evidence demonstrated puted comput- that the appear require to did not Prochnow, it was Franks had interviewed the Offendertrak booking officer search er Prochnow unlikely she would have Thus, Franks was for while system alerts. given cell state- High in a Observation Prochnow, during the intake of negligent made to Puchovan and ments Prochnow disregard or in- recklessly not Franks did Mason. known risks. Franks tentionally avoid analy- court’s with the district agree We to determine together attempted Puchovan Franks’s interaction The extent of sis. based be a suicide risk if Prochnow would August 13 and Prochnow between with screening questions Puchovan on the three (1) Franks’s consisted of: August Supreme Court Prochnow. As the asked Prochnow; search of observing Puchovan’s allev- “an official’sfailure to explained, has that Pro- telling Franks Puchovan’s risk that he should significant iate a (3) Franks’s mov- “good go;” to chnow was not, while no cause perceived but did holding cell with a bed ing Prochnow to a commendation, our cases be cannot under 14; Pro- Franks and August on punish- the infliction of condemned as allegedly Prochnow joking chnow’s about Farmer, at 114 S.Ct. ment.” 511 U.S. Franks stealing items from Wal-Mart. day that August did not work on impute knowledge Even if we a de- outwardly expressed Prochnow Franks, is not alert it Offendertrak suicide. condition and committed pressed establish that knowledge clear this would regarding Pro- all Franks knew to infer a Franks observed facts sufficient was incarceration chnow’s then-current If learned of Pro- substantial risk. Franks arrested for domestic that Prochnow was watch placement on suicide chnow’s undergoing and that Prochnow was abuse system, from the Offendertrak status protocol. This is insufficient a detox Pro- would also have known that Franks material fact genuine create a issue of less remained on suicide watch for chnow subjective knowledge regarding Franks’s almost a days spending than two before suicidal tendencies. Franks population. in general month in- clearly failed to make Though Franks have learned that Prochnow would also duties, is job her there quiries required subsequent been incarcerated three had any had reason to no evidence that she times, and all general population all in reveal inquiries those would suspect that Franks knew that Pro- without incident. suicidal tendencies. that she had never chnow told Puchovan negligent. Franks was There is no doubt and did not have attempted suicide more, however, Moreover, to al- allege must Grabow harm herself. present intent to knowledge to impute April sufficient on low us interacted with Prochnow Franks requires upbeat, Franks. Deliberate indifference which appeared and Prochnow negli- than of a sub- culpability higher level of with an inference is inconsistent did not see closely approximates one that more stantial risk of suicide. Franks gence, 15, and, thus, could not April known risk. disregard reckless for a Prochnow 1970; Farmer, hearing. after her have observed Prochnow 511 U.S. at S.Ct. 623-24; Perez, Prochnow to a simply assigned Reilly, 680 F.3d cell, 1292, (em population holding as had general S.Ct. L.Ed.2d 452 during prior phasis original). been done Prochnow’s three municipality day, The next cannot be held pursuant theory incarcerations. liable to a file, § of recognized respondeat superior checked Prochnow’s that under 1983. Mo Servs., 658, nell v. assigned pro- Dep’t Mason Prochnow to a detox Soc. 436 U.S. tocol, 2018, (1978). holding and moved Prochnow to a 98 S.Ct. 56 L.Ed.2d 611 A municipality only directly cell with a bed to make her more comforta- can be liable § Nothing ble. about Franks’s actions indi- under 1983 when a policy or custom of subjective knowledge municipality cates or a deliberate causes a constitutional vi olation one disregard employees. of a known risk to Prochnow’s of its Id. at 2018; safety. Gray, S.Ct. 399 F.3d at 617. For municipal liability, there must be an under We conclude that Grabow failed to es- lying unconstitutional policy act due to a or tablish that Prochnow “showed a strong custom of the municipality, even if an offi likelihood that attempt [she] would to take cer in his or her capacity individual can own life in such a manner that failure [her] liability through qualified immunity. avoid adequate precautions to take amounted to (6th Morgan, Wilson v. a deliberate indifference to serious [her] (“When Cir.2007); Gray, 399 F.3d at 617 Gray, medical needs.” 399 F.3d at 616. an officer a plaintiff’s rights violates Although Franks acted in uti- negligently established,’ ‘clearly are not city’s but a lizing “good go” policy to lieu policy ‘moving was the force’ behind the interview, conducting a face-to-face Gra- violation, municipality constitutional bow has failed to present facts which may though be liable even the individual would show that Franks necessary had the immune.”); Gregory Shelby officer is subjective knowledge support to a deliber- (6th Cir.2000) Cnty., F.3d ate indifference claim Eighth under the (“For attach, liability to there must be and Fourteenth Amendments. government’s execution of a or cus policy Because we find that Grabow has failed tom results which a constitutional genuine demonstrate a issue of material tort.”). “A municipality may be liable un fact subjective prong as to the § der 1983 where the from risks its deci Eighth and Fourteenth Amendments anal- sion not to train its officers were ‘so obvi ysis, we decline to address district ous’ as to constitute deliberate indifference objective court’s discussion of the prong of rights applied to the of its citizens. As analysis, this its analysis, causation or its claims, suicide imposes duty case law qualified immunity analysis. We affirm part on the of municipalities recognize, grant summary judg- the district court’s ignore, least not obvious risks of against § ment on Grabow’s 1983 claim that are Gray, foreseeable.” Franks. (“Very F.3d at 618. But see id. few cases upheld municipality liability for the IV detainee.”). pre-trial suicide of a § Grabow also asserted 1983 claims against County, arguing Macomb that the grant summary judg- We affirm the County deliberately itself was municipal liability ment on Grabow’s claim indifferent to adequately County. and failed train its staff. Macomb As discussed III, municipalities responsi are supra, present Under Part Grabow failed to illegal upon juror ble for “their own acts.” facts which a reasonable could Cincinnati, Pembaur 475 U.S. conclude that Franks violated of Pro- (2000); v. Tyler, and Fourteenth Amend- 317 see also Jasinski Eighth chnow’s (6th Cir.2013) 531, (noting F.3d that care. Ab- rights adequate ment medical inquiry the under the violation, “proximate-cause underlying sent an constitutional [Michigan proxi is different from statute] against county Grabow’s claim the under analysis mate-cause other contexts be Wilson, § 1983 must also fail. 477 F.3d at cause of the use of the definite article (“There municipal can be no Monell ”). in Michigan legislature The ‘the[.]’ § liability under 1983 unless there is an liability employee tended to limit under act.”). underlying unconstitutional employ § where the 691.1407to situations “substantially negli ee was more than V Rozwood, 109, gent.” Maiden Mich. Finally, Grabow asserted claims (1999). 817, Kruger 597 N.W.2d In gross negligence Franks for under Township, Michigan Lake White Court In Michigan response state law. to Gra Appeals deciding of assumed without that claims, immunity bow’s Franks asserted grossly negligent they officers were when 691.1407, Comp. under Mich. Law which Kruger and arrested handcuffed her to a immunity liability from tort grants gov booking ballet bar in the room because all employees following ernment if the ele 622, holding cells were full. 250 Mich.App. are satisfied: ments (2002). Kruger 648 N.W.2d even tually (a) escaped, but was struck and killed officer, member, employee, The or by during escape. a vehicle her Id. at 662. acting reasonably is or volunteer be- that, The court found even if the officers acting lieves he or she is within the grossly negligent, proximate were scope authority; of his or her Kruger’s cause of death was her own ac (b) governmental agency The is en- running tion of into traffic. Id. at 663. gaged in the discharge exercise or provision, Based on this the district function; governmental court found that Franks was not proxi- (c) officer’s, member’s, employee’s, The death, mate cause of Prochnow’s and we or volunteer’s conduct not does III, agree. As in Part supra, discussed gross negligence amount to is clearly negligent failing Franks was proximate injury cause of the perform the required in-person interview damage. complete in order to the Initial Classifica- parties The do not dispute that elements tion/Temporary Assignment Cell form. (a) (b) apply. only question is Even if we assume that Franks’s actions whether Franks’s conduct amounted to “substantially negli- constituted more than gross negligence that was proximate gence” and that her acts were a cause of cause of death. Proehnow’s assumptions we make suicide— 691.1407(8)(a) Section “gross defines without clear deciding they is were not —it negligence” as “conduct so reckless as to one, immediate and direct cause of demonstrate substantial lack of concern Prochnow’s death. Prochnow did not ver- injury for whether an results.” The Michi- any balize intent to commit suicide to the gan Supreme officer, Court has held that an em- arresting told Puchovan that she ployee’s proximate herself, conduct is “the cause” currently did not intend to harm injury only an when it is “the one most and assured Mason that she did not cur- immediate, efficient, and pre- rently days direct cause intend to harm herself. Two later, ceding injury.” v. City by Robinson Prochnow caused her own death Detroit, Kruger, 462 Mich. it hanging. 613 N.W.2d As was Prochnow’s proximate own actions that were the cause alone nearly accounted for twenty percent of her while neg- Michigan’s twenty-four suicide.6 Franks’s reported total ligent might acts inmate be characterized as a deaths cause in id. part despite chain that the fact that pro causal ended the Jail suicide, eight cessed about percent Grabow has failed to state’s jail total annual genuine create issue of material fact that inmates and held only seven percent of the in proximate jail Franks was the cause of Pro- state’s time, mates at any one see supra n. 1. This chnow’s suicide as that term is defined case is not the first time that Michigan law. this Court

has taken notice of Macomb County Jail’s high suicide rate. In County Crocker v. VI of Macomb, this Court noted that Crocker’s reasons, For the foregoing we affirm the June 2001 suicide was also the fifth suicide grant district court’s of summary judg- at the Jail in less than year. one 119 defendants-appellees ment for Franks and (6th Cir.2005). Fed.Appx. 721 County of Macomb. County Macomb disturbing Jail’s suicide rate is a microcosm of the larger jail- DONALD, BERNICE BOUIE Circuit problem, which accounted for thir Judge, concurring. ty-five percent of all deaths the U.S. I agree panel’s analysis with the and in 2011. Id. at 7. Our decision cites no less outcome. I write separately to note the cases, than prisoner-suicide nine most of troubling surrounding statistics suicides in which originate in Michigan. See Gallo County the Macomb Jail. Anuszkiewicz, way v. 518 Fed.Appx. 330 The Macomb County capacity Jail has a (6th Cir.2013); Carl, v. Jerauld 405 Fed. 1,238 19,- of inmates processes about (6th Cir.2010); Appx. Cooper 970 v. Cnty. annually.7 000 inmates County Macomb Washtenaw, (6th 222 Fed.Appx. 470 of (2012). Sheriffs Report Office Annual 11 Cir.2007); Cnty., Perez v. Oakland 466 year In the surrounding Prochnow’s Au- (6th Cir.2006); F.3d 416 Linden v. Wash suicide, gust 2011 County Macomb Jail (6th Cnty., tenaw Fed.Appx. Cir. five Prochnow) (including inmates 2006); committed Sillman, v. Fed.Appx. Schultz Only suicide. percent jails (6th six of U.S. Cir.2005); 401-03 Gray City of reported two or by any (6th more deaths cause Detroit, Cir.2005); 399 F.3d 612 Com- 2011; eighty-one (6th percent jails report- McCrary, stock v. 273 F.3d 693 Cir. Justice, ed no deaths. Dep’t 2001); Salem, U.S. Bu- City Barber v. Statistics, (6th Cir.1992). reau of Justice NCJ Our decision could Mortality cases, Rates in Local Jails State have cited two more both of which Prisons, suicide, 2000-2011 1. In Michigan, only prior occurred to Prochnow’s percent jails sixteen reported one or County where Macomb itself was before by any more inmate deaths cause. Id. at this Court district courts this Circuit County 18. Macomb Jail’s five suicides as a defendant in an inmate-suicide action. allegations average, Michigan jail 6. There were no popula- that Prochnow 7. On the total per day Mortality mentally incompetent tion in 2011 was incapa- was so as to be Rates Local Jails and State Prisons 17. making ble of the decision to end her own Michigan jail population The total annual life, nothing and there is in the record that 219,266. Report 2010 was Michi- JPIS from support allegation. could such an Corrections, gan Department of Office of (2010). Community Corrections 84 718; Crocker, House v. Fed.Appx. See Macomb, F.Supp.2d

Cnty. of

(E.D.Mich.2004). cases, like the one before

Most of these us, BOLICK, Repre- who Stephen the suicide of inmates as Personal deal with history known of mental illness of Matthew had a sentative of the Estate cases, Bolick, deceased, Plaintiff-Appellee, And in those suicidal tendencies. one, reached the con like this this Court clusion, in Danese v. As put first forward RAPIDS, OF EAST GRAND CITY (6th Cir.1989), man, 875 F.2d 1239 al., Defendants-Appellants. et right recognized there is no constitutional risk. screened for suicide properly be No. 13-1807. municipality official or can be no Appeals, States Court of United sui held under 1983 for inmate liable Sixth Circuit. improper where there has been cides Barber, See screening screening. or no Sept.

953 F.2d at 237-38. keep happening. yet

And the suicides question many

How times should this this before the need for

come before Court mentally-

adequate precautions for “clearly

ill inmates becomes established for which officials can be held ac-

law” many

countable? Id. at 236. How times County come before this

should Macomb training

Court before “the need for better be so obvious” that it should

[becomes]

held liable? Id. current law offers While Grabow, may time come refuge

no

for this to rethink what constitution- Court ill, mentally protections

al are available to

potentially suicidal inmates and what sort liability may on defendants imposed be County,

like Macomb where these suicides alarming

continue to occur at an rate.

Case Details

Case Name: Kelli Ann Grabow v. Macomb Cnty.

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Aug 29, 2014

Citation: 580 F. App'x 300

Docket Number: 13-2609

Court Abbreviation: 6th Cir.