Holding The decedent died of cocaine intoxication. The court granted summary judgment in favor of defendants. The defendants argued that the plaintiff’s expert, should be precluded from testifying because his testimony  regarding ‘sudden in custody death syndrome’ is unreliable because no publication in the police community has recognized this syndrome.” The court found that the expert’s testimony was unnecessary for the purpose of a summary judgment motion.

 

The court found that there was no evidence the officers knew of a substantial risk of harm to the decedent.  The city and county were entitled to dismissal because the plaintiff failed to prove an allegation of inadequate training. Hoyer v. City of Southfield.

 


 

 UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

 

Saralee Hoyer, 

Personal Representative of the

Estate of John Hoyer, Deceased,

Plaintiff,

vs.

City of  Southfield  et al.,

Defendants.

 

Case No. 01-CV-70643-DT

2003 U.S. Dist. Lexis 5835

 

March 14, 2003, Decided 

March 14, 2003, Filed

 

For Saralee Hoyer, Geoffrey N Fieger, Southfield, MI

 

Patrick J. Duggan

United States District Judge.

 

Plaintiff, Saralee Hoyer (Plaintiff), brought this action as the personal representative of the estate of John Hoyer (Hoyer), deceased. The case arises out of the death of Hoyer, who died from a cocaine overdose after being taken into custody by Defendant police officers. Defendants are the officers who initially arrested Hoyer (Southfield Defendants), those who took custody of him at the Oakland County Jail (Oakland Defendants), and the respective employers of the officers, the City of Southfield (Southfield) and Oakland County (Oakland). n1 Plaintiff’s Amended Complaint (Complaint) asserts one count of “Failure to Provide Necessary Medical Attention” against all Defendants. This suit is brought under 42 U.S.C. § 1983 for violation of Hoyer’s rights under the Fourth, Eighth, and Fourteenth Amendments to the United States Constitution. Plaintiff’s claims against Southfield and Oakland are based on these Defendants’ alleged failure to train the individual Defendants.

 

   The matter is currently before the Court on Defendants’  motions for summary judgment, and related motions regarding Plaintiff’s expert witnesses. At the hearing held on November 14, 2002, Plaintiff’s counsel acknowledged that Defendant Dale Romeo should be dismissed from the case. Therefore, Defendant Romeo shall be dismissed, and this Opinion will not address any claims against him. For the reasons set forth below, Defendants’ motions regarding expert witnesses shall be granted, in part, and denied, in part. Defendants’ motions for summary judgment shall be granted.

 

STANDARD

 

  Summary judgment is proper only if there is no genuine issue as to any material fact, thereby entitling the moving party to judgment as a matter of law. Hunter v. Caliber Sys., Inc., 220 F.3d 702, 709 (6th Cir. 2000); see also FED. R. CIV. P. 56(c). There is no genuine issue of material fact for trial unless, by viewing the evidence in a light most favorable to the nonmoving party, a reasonable jury could “return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). On a motion for summary judgment, the moving party bears the initial responsibility of informing the Court of the basis for its motion and identifying those portions of the record that establish the absence of a material issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).

 

  Once the moving party has met its burden, the nonmoving party must go beyond the pleadings and come forward with specific facts to show that there is a genuine issue for trial. FED. R. CIV. P. 56(e); Celotex, 477 U.S. at 322-24, 106 S. Ct. at 2552-53. The nonmoving party must do more than show that there is some metaphysical doubt as to the material facts. Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 800 (6th Cir. 1994). The nonmoving party must present significant probative evidence in support of its opposition to the motion for summary judgment. Moore v. Philip Morris Cos., 8 F.3d 335, 339-40 (6th Cir. 1993).

 

BACKGROUND

 

   On Sunday, October 17, 1999, William Cischke called the Southfield Police about a suspicious person. This suspicious person was later identified as Hoyer. Cischke called the police because he thought Hoyer “was up to something ....” (Pl.’s Ex. A at 32).  Defendants John Gaerlin and Rafid Maya, Southfield police officers, responded to the call. Defendant Gaerlin stated at his deposition that his observation of Hoyer led him to question in his mind whether Hoyer was “high on drugs, mental or ... just making a show ....” (Pl.’s Ex. D at 12). Hoyer was in the middle of the street and the officers decided to get Hoyer out of the street to prevent him from injuring himself. Prior to the arrest, Gaerlin noticed that Hoyer was chewing on something and that he had “small spit bubbles coming out of his side of his mouth.” (Id. at 16).

 

   Defendant Mark LaBrosse also arrived on the scene. Soon after Officer LaBrosse arrived, Hoyer started running into oncoming traffic. The officers chased Hoyer. When Officer LaBrosse reached Hoyer and took a hold of his shoulder, Hoyer “spun around and hit” Officer LaBrosse. (Pl.’s Ex. E. at 13). A struggle ensued between the officers and Hoyer. At one point, one of the officers sprayed Hoyer with some chemical spray, which proved to be ineffective in stopping Hoyer. Officer LaBrosse also struck Hoyer several times with his baton, but this also proved to be ineffective in stopping Hoyer from struggling with the officers. (See id. at 17). Eventually, the officers handcuffed Hoyer. Officer LaBrosse was then taken to the hospital for the injuries he received during the struggle.

 

   Defendant Wakefield arrived on the scene during the struggle between Hoyer and the other officers. Officer Wakefield was the officer that used the chemical spray on Hoyer. Officer Wakefield struck Hoyer with “four or five knee strikes,” but these strikes did not “phase him at all.” (Pl.’s Ex. P at 8). Officer Wakefield also struck Hoyer’s shoulder and observed other officers striking Hoyer. (Pl.’s Ex. P. at 15-16). Officer Wakefield was also taken to the hospital to be treated for his injuries. (Id. at 14).

 

   Officer Maya testified that the officers decided to detain Hoyer because they thought he was “a possible mental patient and he needed to be restrained or detained to protect himself from” harming himself. (Pl.’s Ex. F at 10-11). In response to a question about what the officers were trained to do after detaining a person such as Hoyer, Officer Maya stated:

 

If they’re calm and they’re listening to us and they’re listening to our orders, [we] take them to Providence Hospital, but if they’re being forceful and combative and having him endanger other staff workers or the ambulance or anything, no.

 

(Pl.’s Ex. F at 11). Officer Maya also testified that he has not been trained to have people who are suspected of being under the influence of drugs or alcohol taken to a medical facility to be evaluated. (Id. at 16). However, if a person is in need of medical attention, that person would be taken to a hospital instead of a secure area. (Id. at 18). Officer Maya testified that at the beginning of the encounter he thought Hoyer was “a mental,” but that Hoyer was then arrested for resisting the officers and had to be taken to jail. (Id. at 30-31). If Hoyer had not hit an officer, he may have been taken to Providence Hospital instead of jail. (See id).

 

   Defendant Sikorski arrived on the scene and transported Hoyer to Oakland County Jail (OCJ). n2 Officer Sikorski testified that Hoyer had “some kind of debris around his mouth,” and Hoyer spat or “sprayed” some of this “debris” on the inside of the patrol car. (Pl.’s Ex. G at 9-10). Officer Sikorski noticed that Hoyer had a scrape on his arm. He asked Hoyer if he needed medical attention, and Hoyer said no. (See   id. at 11-12). After Officer Sikorski transported Hoyer to OCJ, the Oakland Defendants took custody of Hoyer.

 

   Defendant David Pegg noticed that Hoyer had a small cut over his right eye and that there was “dried blood” on the cut. (Pl.’s Ex. H at 9-10). Deputy Pegg also observed “chunks of white matter on his chin and on his shirt ....” (Id). Deputy Pegg was informed by one of the Southfield officers that these white chunks were vomit. (See id). Hoyer was placed in a detoxification unit in the jail. (See id. at 18). He was placed in the detoxification unit “to secure him as an aggressive individual.” (Id. at 20).

 

   Defendant Shannan Robinson testified that when someone is brought into OCJ, the person is asked if they have any medical needs. (See Pl.’s Ex. I at 11). In this case, the questions were not asked of Hoyer “due to his aggressive behavior ....” (Id. at 14). Deputy Robinson also testified that if a person is brought in with an “obvious medical condition,” the arresting officers would be asked to provide medical clearance before the individual would be taken in by OCJ. (See id. at 12). Deputy Pegg explained this medical clearance as:

 

When individuals are lodged in the Oakland County jail, it’s a determination of the supervisor or the booking sergeant to deem whether the individual is - - first of all, find out if the individual’s received any injuries via an accident, had consumed a large quantity of alcohol or drugs, if they need medical clearance by a doctor in order to be lodged.

 

   A doctor will ascertain that medical information ‘cause we’re not qualified to do that and deem whether or not they’re able to be lodged or admitted to the hospital.

 

(Pl.’s Ex. H. at 32). Deputy Pegg also testified that he did not observe Hoyer to be “foaming at the mouth.” (See id. at 52).

 

   Hoyer was placed on a 15-minute observation schedule. This observation schedule meant that a deputy would check on Hoyer every 15 minutes, either by walking to the cell or observing him through a television monitor. Robinson observed Hoyer “grunting,” “breathing heavily,” falling in the cell, tampering with the lock, ramming his head and body into the wall, and “waving his arms.” (Pl.’s Ex. I at 27-29).

 

   Deputy Pegg observed Hoyer jumping up, facing the door, grunting and growling, sticking his hand in the toilet, attempting to “remove the vent grate and the glass on the door,” and picking the lock. (Pl.’s Ex. H at 29).

 

   Deputy White testified that initially Hoyer did not seem like someone on drugs, but that after he was in placed in the cell, “that became a possibility of concern.” (Pl.’s Ex. J at 13). Deputy White also thought that Hoyer might be in a “drug induced rage” because of his aggressiveness and “the duration of his energy ....” (Id. at 13-14). Deputy White observed Hoyer running into the walls of his cell, scratching at his own face, jumping around the cell, and falling at least seven times. (Id. at 25-30).

 

   Deputy Robinson decided an ambulance should be called because “Hoyer was sweating profusely ... had a small cut over his right eye and refused to answer and did not answer any of ... [their] medical questions or personal questions.” (Pl.’s Ex. I at 7-8). Robinson indicated in his report that Hoyer appeared “to be intoxicated and/or under the influence of narcotics.  “ (Id. at 17).

 

   When ambulance and fire personnel arrived, they did not want to go into the cell until police officers arrived to assist them. (Pl.’s Ex. H at 41). One of the ambulance personnel, Amy McLaren, also observed Hoyer banging his head against the wall and falling several times. (Pl.’s Ex. K at 25). While McLaren was observing Hoyer, she heard someone else in the room say that Hoyer might be under the influence of drugs. (See id. at 45). She believed, from her previous experiences, that this was a “possibility.” (Id).

 

   Officer Jakielski (not a defendant in this case), one of the Southfield officers that responded to the call for assistance to extract Hoyer from the jail cell, observed Hoyer had blood around his right eye and his mouth. (Pl.’s Ex. N at 17). Paramedic Siloac observed that Hoyer was breathing fast, that his pupils were dilated, and Hoyer did not respond to paramedic Siloac verbally. (Pl.’s Ex. M at 42-43). In response to paramedic Siloac’s observations, personnel at Providence Hospital instructed her to give Hoyer Narcan, a drug that counteracts narcotics. (Id. at 57-58). Hoyer was then transported to Providence hospital, where, about an hour and a half later, he was pronounced dead due to acute cocain intoxication.

 

DISCUSSION

 

Expert Witnesses:

 

   Initially the Court shall address Defendants’ Motion to Strike Plaintiff’s experts and their testimony and Plaintiff’s Response to this motion. The Southfield Defendants, in their Motion, n3 object “to the testimony of Plaintiff’s proposed experts Doctors Bialek, Territo and Spitz and petition the Court for entry of an Order precluding them from testifying at trial and in support of Plaintiff’s Motion and Brief in Opposition to Defendants’ Motions for Summary Judgment ....” (Southfield Defs.’ Mot. at 2). The Court, however, shall only address the testimony of these three experts as it may impact on Defendants’ motions for summary judgment. Defendants’ motions for summary judgment seek a determination that there is no genuine issue of fact with respect to liability and request that this Court find, as a matter of law, that Defendants are entitled to summary judgment.

 

   Dr. Werner Spitz:

 

   In ruling on Defendants’ motions for summary judgment, the Court shall not consider the proposed testimony or “letter” provided by Dr. Spitz, (Pl.’s Ex. T), to which Defendants object. In this Court’s opinion, Dr. Spitz’s opinion goes only to “causation,” i.e., Dr. Spitz’s testimony is only relevant if a determination is made that the Defendants were deliberately indifferent.

 

   Dr. Barry Bialek:

 

   The aspects of Dr. Bialek’s proposed testimony that Defendants challenge are his conclusions that the failure to administer an IV “one hour earlier” contributed to the death of Hoyer and his testimony that there is no such thing as a lethal dosage of cocaine, i.e., “no person should ever die of cocaine overdose if they have access to - - ready access to the emergency room[.]” (Pl.’s Ex. W at 50).

 

   Defendants argue that Dr. Bialek’s testimony should not be considered by this Court with respect to Defendants’ motions for summary judgment and he should not be permitted to testify at trial. Defendants contend that Dr. Bialek’s conclusion is that, “if [Hoyer] had reached the hospital an hour earlier, IV access would probably have been successful,  and the appropriate treatment would have been available to him. This would have probably prevented [Hoyer’s] death.” (Southfield Defs.’ Br. at 2)(quoting from Pl.’s Ex. S at 46). First, Defendants assert that IV access had been obtained as evidenced by deposition testimony of paramedic Siloac and hospital records. n4 Therefore, Dr. Bialek’s conclusion with respect to the administering of the IV is not supported by the facts because, in fact, IV access was obtained both by the paramedics at OCJ and personnel at the hospital. The following colloquies regarding this conclusion occurred during Dr. Bialek’s deposition:

 

Q. You have concluded in your opinion if he had reached the hospital one hour earlier appropriate treatment would have been available to him, reading from your report.

 

A. Correct.

 

Q. What you say is, IV access would probably have been successful. Was IV access successful with Hoyer at any time prior to the time he died?

 

A. I don’t believe so.

(Pl.’s Ex. W at 46).

 

   This testimony shows that Dr. Bialek was operating under the false factual assumption that IV access was never obtained when, in fact, it had been obtained both by the paramedic and hospital personnel. Because it is clear that Dr. Bialek was giving conclusions based on incorrect factual information, his testimony on this subject is not reliable and will not be considered by this Court.

 

   However, even if this Court did conclude that Dr. Bialek’s testimony should be considered by this Court, his testimony, like the testimony of Dr. Spitz, in this Court’s opinion, relates to “cause of death.” It is not helpful to this Court in determining whether or not Defendants acted with deliberate indifference. n5

 

   Dr. Territo:

 

   Defendants argue that Plaintiff’s expert, Dr. Territo, should be precluded from testifying because his testimony does not meet the requirements of Rule 702. Defendants argue Dr. Territo’s testimony regarding “sudden in custody death syndrome” is unreliable because no publication in the police community has recognized this syndrome. Defendants also argue Dr. Territo’s testimony regarding a theory based on a videotape produced by Mace International Federal Laboratories Division (Mace) is unreliable because even Dr. Territo admits it is unworkable for police officers. Defendants next argue Dr. Territo is not qualified to testify as an expert in this trial.

 

   In response to Defendants’ Motions, Plaintiff states that:

 

the testimony proffered by Dr. Territo is that either the Southfield officers were not trained to properly recognize Mr. Hoyer’s need for immediate medical care or they recognized the obvious objective need for medical intervention based on his behavior, but were deliberately indifferent to same.

 

(Pl.’s Resp. at 1). In essence, the testimony proffered by Dr. Territo is that either Southfield or its officers are liable in this case. Although not discussed in her response to Defendants’ motions regarding expert testimony, Plaintiff describes Dr. Territo’s testimony as to the Oakland Defendants in her Response to the summary judgment motions as being “either the policies did not exist or the deputies did not follow them.” (Pl.’s Resp. at 36). Defendants contend that this type of testimony is not admissible under Rule 702.

 

   In Berry, the Sixth Circuit stated:

 

   It would have been easy enough for the drafters of the Federal Rules of Evidence to have said that a properly qualified expert may opine on the ultimate question of liability. They did not do so. When the rules speak of an expert’s testimony embracing the ultimate issue, the reference must be to stating opinions that suggest the answer to the ultimate issue or that give the jury all the information from which it can draw inferences as to the ultimate issue. We would not allow a fingerprint expert in a criminal case to pine that the defendant was guilty (a legal conclusion), even though we would allow him to opine that the defendant’s fingerprint was the only one on the murder weapon (a fact). The distinction, although subtle, is nonetheless important.

 

Berry v. City of Detroit, 25 F.3d 1342, 1353. Dr. Territo’s testimony being nothing more than “expert testimony” as to liability, the Court shall not consider Dr. Territo’s testimony in deciding Defendants’ motions for summary judgment.

 

   Even if the Court were to consider Dr. Territo’s testimony, other than his opinions that Defendants were deliberately indifferent, at most, Dr. Territo’s testimony could only establish that there was sufficient objective evidence from which the individual Defendants could have concluded a need for medical attention. (See Pl.’s Ex. X at 117). Although this testimony could help establish a genuine issue of material fact for the first prong of the deliberate indifference standard, i.e., that the individual Defendants were aware of facts from which they could have inferred a need for medical attention, it does not, in this Court’s opinion, establish an issue of fact with respect to the second prong of the analysis, i.e., that the individuals actually drew an inference of medical need. n6 See Farmer v. Brennan, 511 U.S. 825, 114 S. Ct. 1970, 1979, 128 L. Ed. 2d 811 (1994)(establishing the two-prong standard for deliberate indifference and stating that deliberate indifference claims “must satisfy a ‘subjective’ requirement”). Therefore, even if the Court were to consider Dr. Territo’s testimony, Defendants, as discussed below, would be entitled to summary judgment.

 

Summary Judgment:

 

   Both Southfield Defendants and Oakland Defendants have filed motions for summary judgment. Each motion is discussed separately below.

 

   As an initial matter, although Plaintiff’s Complaint asserts claims of violations of Fourth, Eighth, and Fourteenth Amendments, the Court notes that Plaintiff’s claim under the circumstances can only be based upon a violation of the Fourteenth Amendment. See Watkins v. City of Battle Creek, 273 F.3d 682, 685-86 (6th Cir. 2001)(holding that  while Eighth Amendment rights do not apply to pretrial detainees, the Fourteenth Amendment due process clause provides pretrial detainees with an analogous right to adequate medical treatment).

 

   In Farmer, the Supreme Court provided the test for deliberate indifference. The Court held that a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health and safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw that inference.

 

Farmer, 114 S. Ct. at 1979 (emphasis added). The Court went on to state that it is enough if a plaintiff shows “that the official acted or failed to act despite his knowledge of a substantial risk of serious harm.” Id. at 1981 (emphasis added). Therefore, the question is whether the official, “acting with deliberate indifference, exposed a prisoner to a sufficiently substantial ‘risk of serious damage to his future health.’” Id. at 1982 (citation omitted)(emphasis added).

 

   In Watkins, the Sixth Circuit described deliberate indifference as follows:

 

Deliberate indifference is not mere negligence. Deliberate indifference requires that the defendants knew of and disregarded a substantial risk of serious harm ... This standard is subjective. It is not enough that there was a danger of which an officer should objectively have been aware. “The official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. If an officer fails to act in the face of an obvious risk of which he should have known but did not, the officer has not violated the Eighth or Fourteenth Amendments.

 

Watkins, 273 F.3d at 686 (internal citations omitted). “Thus a showing of deliberate indifference requires a showing of the official’s actual awareness of a substantial risk of serious harm.” Brooks v. Celeste, 39 F.3d 125, 128 (6th Cir. 1994)(Citing Farmer, 114 S. Ct. at 1981).

 

Individual Defendants - - Constitutional Violation

 

Southfield Defendants:

 

   The Southfield Defendants contend they are entitled to summary judgment because the facts do not establish that the officers were aware that Hoyer had a serious medical need. Further, the individual Defendants contend they are entitled to qualified immunity.

 

   As indicated above, to prove a claim of deliberate indifference, Plaintiff must show that the Defendant officers were aware of facts from which an inference of substantial harm to Hoyer’s health could be drawn, and they must also have drawn such an inference. The facts below are taken from Plaintiffs Response to Defendants’ motions.

 

   Officer Gaerlan:

 

   According to Plaintiff, Officer Gaerlan observed that Hoyer was “displaying erratic behavior” and “appeared confused.” (Pl.’s Ex. D at 12).. Officer Gaerlan observed Hoyer walk into the middle of the street and proceed to take his shoes and socks off. (See id). Hoyer’s behavior led Officer Gaerlan to question whether Hoyer was “high on drugs, mental or ... just making a show, trying to be uncooperative.” (Id) Officer Gaerlan also noticed that Hoyer was “chewing on something  and that there were “small spit bubbles coming out of his [sic] side of his mouth.” (Id. at 16).

 

   Officer Maya:

 

   Officer Maya’s observations of Hoyer, that he was throwing down his cell phone and spilling water out of his water bottle, led him to believe that Hoyer might be a “possible mental” or “on some type of drugs.” (Pl.’s Ex. F at 9-10).

 

   Officer Wakefield:

 

   Officer Wakefield arrived on the scene as the other officers were trying to subdue Hoyer. Officer Wakefield used a type of pepper spray, knee strikes, and a hand strike to control Hoyer, but none of these worked. There is no evidence in the record that Wakefield observed any medical condition with respect to Hoyer.

 

   Officer LaBrosse:

 

   Officer LaBrosse arrived on the scene as Hoyer started running into oncoming traffic. Officer LaBrosse chased Hoyer, and when he reached him and put his hand on Hoyer’s shoulder, Hoyer turned around and struck Officer LaBrosse. Officer LaBrosse testified at his deposition that one of the “possibilities” for Hoyer’s behavior could have been that Hoyer was under the influence of drugs or alcohol. (Pl.’s Ex. E at 17-18).

 

   Officer Sikorski:

 

   Officer Sikorski arrived on the scene to transport Hoyer to OCJ. Officer Sikorski noticed “some kind of debris around [Hoyer’s] mouth” and was not sure what the debris was. (Pl.’s Ex. G at 9-10). He also observed that Hoyer had a scrape on his arm that was bleeding. (Id. at 11). Officer Sikorski asked Hoyer, after Hoyer got in Officer Sikorski’s vehicle, whether he needed any medical attention, to which Hoyer replied no. (Id. at 12).

 

   Viewing the evidence in a light most favorable to Plaintiff, in this Court’s opinion, the evidence in this record would not permit a trier of fact to conclude that any of the individual Defendants knew or was aware of a substantial risk of serious harm to Hoyer with respect to the individual Southfield Defendants. While there is some evidence that some of the officers observed some medical conditions, e.g., Gaerlan observed that there were “small spit bubbles coming out of his [sic] side of his mouth” and Sikorski observed “some kind of debris around Hoyer’s mouth” and a scrape or cut on the arm, there is no evidence that any of these officers perceived his medical condition as a serious medical condition. Even the evidence that some of these officers surmised that Hoyer’s behavior was such that he might be under the influence of drugs or alcohol, does not support a conclusion that any of these officers were “aware of facts from which the inference could be drawn that a substantial risk of serious harm exists or that such officer drew such inference. Watkins, 273 F.3d at 686.

 

   Furthermore, Officer Sikorski testified that he inquired of Hoyer as to his need for medical attention and he received a negative reply. (Pl.’s Ex. G at 12). In this Court’s opinion, this further supports the conclusion that none of these officers had reason to believe that he was in need of immediate medical attention that required that he be transported to a hospital rather than to the jail. Furthermore, it is unrefuted that Hoyer struck Officer LaBrosse and that the officers had difficulty subduing him. In view of these facts, it was not deliberately indifferent conduct on the part of these officers to decide to transport Hoyer to OCJ. n7

 

Oakland Defendants:

 

   The Oakland Defendants contend they are entitled to summary judgment because the evidence does not support a finding that prior to the decision to call for medical aid, these Defendants were aware of the fact that Hoyer had medical needs that required transportation to a hospital. These Defendants contend that they became aware of a need for medical attention requiring hospitalization after Hoyer had been placed in the cell and that upon becoming aware of such need, they took the appropriate steps and called for medical assistance. Defendants contend that there is no evidence that would support a conclusion that these Defendants “knew of and disregarded a substantial risk of serious harm” to Hoyer’s health and safety. Watkins, 273 F.3d at 686. Further, these Defendants contend they are entitled to qualified immunity. In this Court’s opinion, the record supports the following facts, viewed in a light most favorable to the Plaintiff. n8

 

   Deputy Pegg:

 

   Deputy Pegg observed that Hoyer had a cut over his brow that had been bleeding, but was not actively bleeding. (Pl.’s Ex. H at 9-10). Deputy Pegg also noticed “chunks of white matter on his chin and on his shirt ....” (Id. at 12). Deputy Pegg testified at his deposition that Hoyer was placed in a detoxification unit of the jail because of his aggressive behavior. (Id. at 18-20). After Hoyer was placed in the cell, Deputy Pegg observed Hoyer starting to grunt and growl, pace the floor, stick his hand into the toilet, attempt “to pick the lock with his finger,” and attempted to lift the vent grade and the cell door. (Id. at 29).

 

   Deputy Robinson:

 

   After Hoyer was placed in the cell, Deputy Robinson observed him ram his head into the wall, walk around the cell, wave his arms, and tamper with the door lock. (Pl.’s Ex. I at 28). Deputy Robinson noted in his report that Hoyer appeared to be intoxicated or under the influence of narcotics. (Id. at 17). Deputy Robinson decided medical personnel were needed when he observed Hoyer had a small cut over his right eye, he refused to answer medical or personal questions, and was sweating profusely even after he was placed in the isolation cell. (Id. at 15-16).

 

   Deputy White:

 

   Deputy White testified at his deposition that due to Hoyer’s “high energy level,” he indicated in his report that Hoyer appeared to be in a drug induced rage. (Pl.’s Ex. J at 13-14). Deputy White noticed the cut above Hoyer’s right eye and believed “it probably needed a stitch,” and that he had “numerous scrapes and bruises ....” (Id. at 18). Deputy White testified that Hoyer did not respond to verbal communications. (Id. at 19). He also observed Hoyer “moving about the cell, he was jumping, his energy level was extremely high,” “running into the walls of the cell,” “scratching at his own face,” and did not respond to commands or directions. (Id. at 25-26). Deputy White estimated that Hoyer fell in his cell at least seven times. (Id. at 30).

 

   With respect to the individual Oakland Defendants, the evidence, viewed in a light most favorable to Plaintiff, does not support a conclusion that any of these Defendants acted “deliberately indifferent” to Hoyer’s serious medical needs. The record reveals that Hoyer arrived at the OCJ at 6:35 p.m. and that the “receiving” officers,  i.e., the Oakland County Officers, had to take control of him and get him into an isolation cell and secure the isolation cell door. (Tr. of Nov. 14, 2002 Hr’g at 31 and 32.). Defendants contend that this took approximately thirty-forty minutes and there is no evidence to refute this. (Pl.’s Ex. H at 25-26). After they placed Hoyer in the cell, they had to “catch their breath, decontaminate and re-establish control of the jail. There are sixty-seventy other inmates who are the responsibility of these three sheriff’s deputies.” (Hr’g Tr. at 34). Defendants assert this process took ten-twenty minutes.

 

   While there is evidence to support the fact that White observed a cut over Hoyer’s eye that probably needed stitches and that he was sweating profusely, and that Pegg noted that there were chunks of white matter on Hoyer’s chin and that he was foaming or frothing at the mouth, none of the observations made by any of the three individual Oakland Defendants would support a finding that these three officers, prior to placing him in the isolation cell, “knew of and disregarded a substantial risk of serious harm to Hoyer’s health and safety.” Watkins, 273 F.3d at 686.

 

   After Hoyer was placed in the cell, he was placed on a 15-minute observation schedule. During these observations, Robinson concluded that Hoyer was in need of medical attention and he contacted Southfield Life. The record reveals that Southfield Life was contacted at 7:49 and arrived at OCJ at 7:54. (Def. Oakland’s Ex. G). However, when the medical personnel from Southfield Life arrived, because of Hoyer’s behavior, they felt it necessary to have the assistance of Southfield Police in transporting him to the hospital. (See Pl.’s Ex. M at 27-28).

 

   Plaintiff contends that the “medical conditions” that these three Defendants observed when Hoyer first arrived at OCJ were the same medical conditions that these Defendants “later observed” which caused them to seek medical attention and therefore, Plaintiff contends that it was deliberately indifferent not to seek medical attention earlier.

 

   The Deputy who called for medical personnel, Deputy Robinson, stated at his deposition that when Hoyer first arrived at the jail, he had no reason to believe Hoyer was in need of immediate medical attention. (Pl.’s Ex. I at 60). Deputy Robinson also testified that after Hoyer was put in the isolation cell and Defendants left the cell, he had no reason to believe Hoyer had any medical attention serious enough to require Hoyer to leave OCJ. (Id. at 63). It was only after Deputy Robinson noticed that Hoyer “was just sweating profusely” even after Hoyer had been left in the cell and was sitting in the cell without “exercising” or “running around” that Deputy Robinson thought Hoyer may need medical attention, because this sweating “didn’t appear to be normal in [Deputy Robinson’s] experience.” (Id. at 69). The evidence indicates that as soon as Deputy Robinson noticed what appeared to him to be abnormal sweating, he contacted medical personnel. (Id. at 71). Then, as soon as the medical personnel notified Deputy Robinson that additional assistance was needed to extract Hoyer from the cell, Deputy Robinson called for assistance. (Id).

 

   As indicated above, the standard for deliberate indifference is a subjective standard, i.e., it is whether an officer was aware of facts from which an inference of medical need could be drawn and then whether the officer actually drew such an inference. It is not an objective standard, i.e., whether looking at the facts the officer should have known that there existed a serious medical need. Applying this standard to the testimony of the deputies, especially Deputy Robinson, the deputy who called for medical assistance, the evidence shows that the deputies did not initially draw any inference of medical need for Hoyer, but that when such an inference was drawn from the facts presented to them, medical assistance was summoned. In this Court’s opinion, this shows that the Defendant Deputies were not deliberately indifferent to Hoyer’s serious medical needs; therefore, Defendants are entitled to summary judgment as a matter of law.

 

Individual Defendants - - Qualified Immunity

 

    The individual Defendants also assert the defense of qualified immunity. n9 In determining whether or not a defendant is entitled to qualified immunity, the Court must first determine whether or not a constitutional violation has occurred. If, looking at the evidence in a light most favorable to Plaintiff, the alleged facts show a violation of a constitutional right, then the Court must determine whether the right was clearly established, i.e., “whether it would be clear to a reasonable officer that his conduct was unlawful  in the situation he confronted.” Klein v. Long, et al., 275 F.3d 544, 550 (6th Cir. 2001)(citing Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001)).  To determine whether a constitutional right is “clearly established,” a court in “the Sixth Circuit must find binding precedent from the Supreme Court, the Sixth Circuit, or from itself.” Cope v. Heltsley, 128 F.3d 452, 458 n.4 (6th Cir. 1997).

 

   A plaintiff’s assertion of a violation “of a broadly stated general right is not determinative.” Rippy v. Hattaway, 270 F.3d 416, 424 (6th Cir. 2001). The Sixth Circuit has held that:

 

the right the official is alleged to have violated must have been ‘clearly established’ in a more particularized, and hence more relevant, sense: The contours of the right must have been sufficiently clear that a reasonable official would understand that what he is doing violates the right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful; but it is to say that in the light of preexisting law the unlawfulness must be apparent.

 

Id. (citation omitted).

 

   In this case, because this Court has concluded that there has been no constitutional violation by any individual Defendant, each individual Defendant is entitled to dismissal of the claim against him based on qualified immunity.

 

   Furthermore,  once a defendant pleads the defense of qualified immunity, “the plaintiff bears the burden of showing that the defendant’s conduct violated a right so clearly established that a reasonable official in his position would have clearly understood that he or she was under an affirmative duty to refrain from such conduct.” Sheets v. Mullins, 287 F.3d 581, 586 (6th Cir. 2002)(citation omitted). Therefore, “the ultimate burden of proof is on the plaintiff to show that the defendant is not entitled to qualified immunity.” Id.(citation omitted).

 

   In the case at bar, both sets of individual Defendants have asserted the defense in their motions for summary judgment, but Plaintiff has failed to even address the defense, let alone establish that the individual Defendants are not entitled to it. Therefore, even if this Court had concluded that the individual Defendants had violated Hoyer’s constitutional rights, Defendants would still be entitled to qualified immunity because Plaintiff has failed to meet her burden of proof by showing that Defendants’ “conduct violated a right so clearly established that a reasonable official ... would have clearly understood that he or she was under an affirmative duty to refrain from such conduct.” Sheets, 287 F.3d at 586.

 

   Municipal Defendants - - City of Southfield and County of Oakland

 

   Plaintiff seeks to impose liability on the City of Southfield and County of Oakland because of their “failure to properly train, supervise and/or monitor the individual Defendants ....” (Am. Compl. at P 72).

 

   A municipality can be held liable under 42 U.S.C. § 1983 for failure to train “only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact.” City of Canton, Ohio v. Harris, 489 U.S. 378, 109 S. Ct. 1197, 1204, 103 L. Ed. 2d 412 (1989). Liability attaches to municipalities “where - - and only where - - a deliberate choice to follow a course of action is made from among various alternatives by city policymakers.” Id. at 1205 (citations and quotation marks omitted). The issue is “whether such inadequate training can justifiably be said to represent ‘city policy.’” Id. In light of the circumstances of a particular case, a violation occurs when “the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need. In that event, the failure to provide proper training may fairly be said to represent a policy for which the city is responsible, and for which the city may be held liable if it actually causes injury.” Id.

 

    The Sixth Circuit has set forth the following requirements that a plaintiff must prove for a failure to train case: “that a training program is inadequate to the tasks that the officers must perform; that the inadequacy is the result of the city’s deliberate indifference; and that the inadequacy is ‘closely related to’ or ‘actually caused’ the plaintiff’s injury.” Hill v. McIntyre, 884 F.2d 271, 275 (6th Cir. 1989)(citing Harris). In Watkins, the Sixth Circuit held that if the individual defendants are not liable, then the municipality cannot be liable for failure to train. Watkins, 273 F.3d at 687.

 

   Defendant Southfield contends that it is not liable for failure to train because the individual officers did not violate Plaintiff’s constitutional rights. Because this Court has concluded that none of the Southfield Officers are liable for any constitutional violation, Southfield cannot be liable. Therefore, Southfield is entitled to summary judgment on Plaintiff’s failure to train claim.

 

   Defendant Southfield further contends Plaintiff’s failure to train claim is without merit because the Southfield Officers were properly trained, citing deposition testimony and training records of the officers. In response, Plaintiff cites Officer Maya’s testimony that he was not trained to take people suspected of being under the influence of some type of drugs or alcohol to a medical facility. Plaintiff asserts that this testimony “demonstrates the probability that [the Southfield Officers’] training and supervision could indeed be found constitutionally deficient.” (Pl.’s Resp. at 32).

 

   In this Court’s opinion, the evidence presented by Plaintiff fails to meet the requirements for a failure to train cause of action. Plaintiff fails to identify a Southfield training program that is inadequate; fails to show that any inadequacy is a result of Southfield’s deliberate indifference; and fails to show that the inadequacy was closely related to or caused Hoyer’s death. As the Supreme Court stated in Harris, it will not “suffice to prove that an injury or accident could have been avoided if an officer had had better or more training, sufficient to equip him to avoid the particular injury-causing conduct.” Harris, 109 S. Ct. at 1206. Furthermore, Maya’s testimony alone is also insufficient to establish liability on the part of Southfield. Id.(“that a particular officer may be unsatisfactorily trained will not alone suffice to fasten liability on the city, for the officer’s shortcomings may have resulted from factors other than a faulty training program”).

 

   Defendant Oakland argues it is not liable for failure to train only because the individual Defendants’ are not liable. Because this Court has concluded that none of the Oakland Deputies are liable for any constitutional violation, Defendant Oakland cannot be liable under a failure to train theory.

 

   Even if the Court had concluded that Defendant Oakland Deputies had violated Hoyer’s constitutional rights, Defendant Oakland would be entitled to summary judgment because Plaintiff has failed to proffer facts that could establish its claim for failure to train. The only facts n10 offered by Plaintiff in support of her claim against Defendant Oakland is the testimony of Deputy Dale Romeo, who is no longer a defendant in this case.

 

   Plaintiff asserts that Deputy Romeo “stubbornly insisted that only after the prisoner is booked at the Southfield Annex do they determine if the arrestee is in immediate need of medical care.” (Pl.’s Resp. at 37). Deputy Romeo’s stated at his deposition that

 

as a police officer, if he violated a law by resisting, obstructing and assault and battery, under the law I’m obligated to arrest them and take them to the jail for incarceration. Once we get there, we make a further ascertation [sic] if, in fact, they need imminent medical care.

 

(Pl.’s Ex. O at 63). In this Court’s opinion, Deputy Romeo’s testimony does not support Plaintiff’s assertion that only after a prisoner is booked is there an evaluation of whether the prisoner needs medical attention. According to the testimony, the evaluation is done once the prisoner gets to the jail facility. This evidence does not support Plaintiff’s failure to train claim against Defendant Oakland.

 

   Plaintiff also asserts that Deputy Romeo testified that “withdrawal from drugs or alcohol does not warrant immediate medical attention ... Nor would head trauma unless there was bleeding[,] bruising or swelling.” (Pl.’s Resp. at 37)(citations omitted). Deputy Romeo did testify that withdrawal from drugs or alcohol does not warrant immediate medical attention, and as for head trauma, he testified that “it depends on degree ....” (Pl.’s Ex. O at 66). Once again, this testimony fails to establish any of the facts Plaintiff needs to establish for a failure to train claim. Therefore, even if the Court had concluded that the individual Defendants had violated Hoyer’s constitutional rights, Defendant Oakland would be entitled to summary judgment on Plaintiff’s failure to train claim based on the facts set forth by Plaintiff.

 

CONCLUSION

 

   Plaintiff’s claims against Defendant Dale Romeo shall be dismissed pursuant to the parties’ stipulation. Defendants’ Motion to exclude the expert testimony of Drs. Spitz and Bialek shall be denied as moot because, in this Court’s opinion, the doctors’ testimony in question relates to causation and is not relevant to the Court’s holding regarding whether Defendants were deliberately indifferent to Hoyer. Defendants’ Motion regarding the testimony of Dr. Territo shall be granted. Defendants’ motions for summary judgment shall be granted because the facts do not establish a violation of Hoyer’s constitutional rights under the Fourteenth Amendment.

 

   A Judgment consistent with this Opinion shall issue forthwith.

 

   Patrick J. Duggan

   United States District Judge

   Date: Mar 14 2003

 

Notes:

 

1 Southfield Defendants and Oakland Defendants refer to the individuals and the entities that employed the individuals, Southfield Police Department and Oakland County respectively.

 

2 OCJ refers to the Southfield Annex of the Oakland County Jail.

 

3 The Oakland Defendants have since joined in the Motion.

 

4 Plaintiff acknowledges in her response that both paramedic Siloac and hospital personnel administered IVs to Hoyer.

 

5 The Court expresses no opinion with respect to Dr. Bialek’s ability to testify as to whether or not an overdose of cocaine can be fatal. This issue does not relate to whether or not Defendants were deliberately indifferent.

 

6 In fact, Dr. Territo testified at his deposition that he had no “idea what was running through [the officers’] minds[,]” and that because the officers took Hoyer to OCJ, Dr. Territo “guessed they didn’t think there was a problem.” (Pl.’s Ex. X at 118). This testimony, in this Court’s opinion, indicates that Dr. Territo’s opinions are not helpful to establishing a fact issue with regard to the second prong of the deliberate indifference standard.

 

7 Before filing her response to Defendants’ motions regarding her expert witnesses, Plaintiff filed an objection to Defendants’ motions in which she states without her experts’ testimony, “Defendants will be entitled to summary judgment.” (Pl.’s Obj. at P 8). The Court agrees with this statement because without Dr. Territo’s “expert testimony” that Defendants are liable, the facts, even looked at in the light most favorable to Plaintiff, entitle Defendants to summary judgment.

 

8 These facts are primarily taken from Plaintiff’s response to Defendants’ motion.

 

9 Both sets of individual Defendants (Southfield officers and Oakland deputies) assert this defense.

 

10 Plaintiff also relies upon Dr. Territo’s testimony in support of her claim against Defendant Oakland. However, even if the Court had not excluded Dr. Territo’s testimony, the testimony would not establish liability on the part of Defendant Oakland. Dr. Territo’s testimony, according to Plaintiff, is that “either the policies did not exist or the deputies did not follow them.” (Pl.’s Resp. at 36). This testimony, even if accepted by the Court, does not establish that Defendant Oakland had a training program that was inadequate; that this inadequacy was due to Defendant Oakland’s deliberate indifference; and that this inadequacy was closely related to or caused Hoyer’s death.