Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 09-10648-David M. Lawson, District Judge.
The opinion of the court was delivered by: McKEAGUE, Circuit Judge.
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206
Before: MARTIN, ROGERS, and McKEAGUE, Circuit Judges.
This appeal comes to us as part of a larger lawsuit filed against Lenawee County, Michigan and various agents of the Lenawee County Sheriff's Department and Michigan Department of Corrections. The Estate of Brenda Smith, through personal representative Suetta Smith, filed suit after Brenda Smith died while in the custody of the Lenawee County Sheriff's Department. The sole issue pending before this panel is whether defendant Thomas Moore, Parole Agent for the Michigan Department of Corrections, is entitled to governmental immunity on the state-law gross negligence claim. Because Moore's actions were not the proximate cause of Brenda Smith's death, he is entitled to governmental immunity. We therefore REVERSE the order of the district court denying Moore's motion for summary judgment on the gross negligence claim.
The facts surrounding Brenda Smith's ("Smith") death reveal that a senseless tragedy occurred at the Lenawee County jail. Smith was booked at the jail on a parole detainer on the evening of April 27, 2007. Soon after booking, she began displaying signs of delirium tremens ("DT"), which is a life-threatening condition caused by acute alcohol withdrawal. Her symptoms included paranoid behavior, hearing nonexistent noises, and talking with relatives who were not present. Jail officials recognized Smith's symptoms as being attributable to DT and implemented precautions for her protection. Specifically, officials moved Smith to an observation cell on the night of April 28. After her condition worsened throughout the night, officers contacted Dr. Jeffrey Stickney, an on-call physician for the jail. Dr. Stickney advised jail officers to keep Smith safe and to monitor her, but he did not recommend any further treatment because he believed Smith's medications provided adequate treatment for her condition.
Smith's condition deteriorated further throughout the night of April 29. The Death Investigation Report describes Smith's behavior as being "more physical, beating on the door, screaming, [and] hitting the walls." Jail officers moved Smith to a padded cell for her protection. By the next morning, officers noted that Smith had become more settled. Yet the officers also recorded that Smith continued to fall around her cell, crawl, and reach for objects on the wall. Parole Agent Thomas Moore arrived at the jail at approximately 9:18 that morning to serve Smith a Notice of Parole Violation Charges in preparation to transport her out of the Lenawee County jail to Washtenaw County. Moore was employed by the Michigan Department of Corrections, not the Lenawee County Sheriff's Department, and he was at the jail for the sole purpose of serving Smith. When Moore arrived, he was notified by jail officials that Smith was incoherent and unaware of her identity. Moore then observed Smith in the padded observation cell for a period of minutes. Moore noted that Smith was moaning loudly with her face down on the bench. After deciding that Smith was unable to be transported or served, Moore left the jail without taking further action.
The jail's video recording shows that Brenda Smith's last movements occurred at 9:19 a.m., which coincided with the time that Moore stated he had observed her. Jail officials did not check Smith again until 9:50 a.m., at which time an official summoned for help because Smith was unresponsive. Paramedics arrived within moments and transported Smith to an area hospital. She died within a short time after arriving at the hospital.
Suetta Smith ("Plaintiff"), Brenda Smith's sister and personal representative of the Estate, filed suit against Lenawee County, a number of Sergeants and Officers with the Lenawee County Sheriff's Department, on-call physician Dr. Stickney, and Parole Agent Thomas Moore. The suit contained a federal claim, brought under 42 U.S.C. § 1983 for violation of Smith's Eighth and Fourteenth Amendment rights, and a state claim, brought under Michigan law for gross negligence. In lieu of an answer, Moore filed a motion for summary judgment under Federal Rule of Civil Procedure 56(b), claiming that he was entitled to qualified immunity as to the federal claim and governmental immunity as to the state claim. In response to Moore's motion, Plaintiff argued that summary judgment was inappropriate because discovery had not yet commenced and because Moore was the last person to observe Smith alive. Plaintiff's attorney filed a Rule 56(f) affidavit to support the claim that additional discovery was needed. After a hearing on Moore's motion, the district court ruled from the bench, granting Moore qualified immunity on the federal § 1983 claim but denying governmental immunity on the state gross negligence claim.*fn1 The court determined that Plaintiff's Rule 56(f) affidavit was too vague to justify more discovery on the federal claim. Moore brings this appeal, challenging the denial of governmental immunity.
The district court possessed subject matter jurisdiction over Smith's federal claims pursuant to 28 U.S.C. § 1331. It had supplemental jurisdiction over the gross negligence claim, brought under Michigan law, pursuant to 28 U.S.C. §1367(a) because the gross negligence claim formed part of the same "case or controversy" as the § 1983 claim. We have appellate jurisdiction over final orders of the district court pursuant to 28 U.S.C. § 1291. Plaintiff argues that we lack jurisdiction over the district court's denial of governmental immunity on the gross negligence claim because the denial of governmental immunity under Michigan Compiled Laws ("M.C.L.") § 691.1407 does not constitute a "final order."
Prior to the 2002 Amendments to the Michigan Court Rules, this court held in Walton that a denial of governmental immunity under M.C.L. § 691.1407 was not a final appealable order. See Walton v. City of Southfield, 995 F.2d 1331, 1344 (6th Cir. 1993) (noting that denial of governmental immunity was not an appealable order under Michigan law because governmental immunity provided immunity from liability, not immunity from suit). Michigan Court Rule 7.202 was subsequently amended to include an "order denying governmental immunity" as a final order for the purposes of appellate review. M.C.R. 7.202(6)(a)(v). In light of this 2002 amendment, we revisited Walton's holding in Livermore ex rel. Rohm v. Lubelan, 476 F.3d 397, 408 (6th Cir. 2007), and determined that an order granting or denying governmental immunity under M.C.L. § 691.1407 now constitutes a final order for the purposes of federal appellate review. Since the amendment, this court has consistently followed Livermore and has allowed interlocutory appeals to be taken from orders granting or denying governmental immunity under M.C.L. § 691.1407. See, e.g., Floyd v. City of Detroit, 518 F.3d 398, 409 (6th Cir. 2008); Marvin v. City of Taylor, 509 F.3d 234, 251 (6th Cir. 2007). Plaintiff acknowledges Livermore and its progeny, yet she nonetheless ...