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Marden v. County of Midland

United States District Court, E.D. Michigan, Northern Division

March 24, 2017

COUNTY OF MIDLAND, et al., Defendants.


          THOMAS L. LUDINGTON United States District Judge

         This case arises out of the tragic death of Jack Brian Marden while in the custody of Defendant Midland County on February 13, 2015. On December 31, 2015, Jack Marden's wife, Plaintiff Sharyl Marden, filed her complaint against Midland County and Captain Richard Harnois (the “County Defendants”), and Midland County jail employees Lieutenant Jeffrey Derocher, Deputy Brian Keidel, Deputy Richard Speich, Deputy Joshua Michael Saylor, and Deputy Bryan Kryzanowicz (together the “Officer Defendants”). See Compl., ECF No. 1. Plaintiff asserts that Jack Marden's death resulted from the individual Defendants' violations of the Fourth, Eighth, and Fourteenth Amendments pursuant to 42 U.S.C. § 1983, and that Defendant Midland County is liable for those actions pursuant to Monell v. Department of Social Services of New York, 436 U.S. 658 (1978). She also asserts that the actions of the Officer Defendants constitute state law assault and battery.

         On January 3, 2017 Defendants filed a motion to challenge the revised opinion of their own expert, Doctor Kanu Virani, M.D. See ECF No. 44. On January 19, 2017, the Midland County Defendants and the Officer Defendants filed motions for summary judgment. See ECF Nos. 49, 51. Finally, on February 10, 2017, Defendants moved to strike Plaintiff's newly added expert witnesses. See ECF No. 63. For the reasons stated below, Defendants' motions for summary judgment will be granted. Their motions to challenge Dr. Verani's revised opinion testimony and to strike newly added experts will be denied as moot.


         Plaintiff Sharyl Marden is a resident of Midland County, Michigan. She is the duly appointed personal representative of the estate of her husband, Decedent Jack Brian Marden. Jack Marden, born on January 29, 1959, had no history of violence but had been diagnosed with depression. He was 5'11” and weighed 205 pounds.

         Defendant County of Midland is a governmental entity organized and existing under the laws of the State of Michigan. Midland County is responsible for operating the Midland County Sheriff's Department and the Midland County Jail. Id. At all relevant times Defendant Harnois was employed by Midland County as Captain for the Midland County Sheriff's Department and Jail Administrator for the Midland County Jail. Officer Derocher was employed as a lieutenant, and all other Officer Defendants were employed as deputies. Plaintiff alleges that the individual Defendants were acting in their individual capacities within the course and scope of their employment at the time of the relevant events.


         On January 19, 2015, officers from the Midland Police Department were called to the Marden's residence for a domestic dispute. At the scene, a police officer deployed a Tazer to subdue Jack Marden, who was then transported by ambulance to MidMichigan Medical Center for a psychiatric evaluation without incident. In the call for the ambulance, it was represented that Marden had an injury to his arm in the form of a laceration and was the subject of “overdose/poisoning.” Plaintiff alleges that the incident took place after Jack Marden overdosed on Valium.

         After being observed at MidMichigan Medical Center overnight, Marden was discharged. The discharging physician noted that Jack Marden was suffering from major depression, but that he denied feeling helpless or suicidal. At the time, decedent was agreeable to continuing care and counseling, and agreed to referral to out-patient services for therapy for himself and Plaintiff, his wife. The discharging physician opined that Jack Marden did not present an imminent danger to himself or others.

         Marden returned home following his discharge, where he remained until February 4, 2015. On that date, the Midland City Police Department acted on a felony arrest warrant charging Jack Marden with assault and aggravated assault as a result of the domestic incident that took place on January 19, 2015. He was then taken to the Midland County jail, where he was held in the intake area of the jail as a pretrial detainee until February 11, 2015.


         The events preceding Defendants' efforts to physically control Plaintiff are largely undisputed. After being observed with deteriorating mental health, on February 11, 2015 at around 11:19 AM, Jack Marden was removed from his cell for an interview with Community Mental Health supervisor, Gina Latty, and a representative of Community Mental Health, Marissa Boulton.[1] See Latty Dep. 11-12, ECF No. 64-28. At the time of the interview Nurse Latty did not know anything about Marden's medical history. Id. She testified that she was unable to obtain a signed medical release or any information from Marden due to his psychotic state, and that he accused her of trying to kill him and claimed that he was pregnant. Id. at 18-20. Ms. Boulton therefore left to advise Lieutenant Derocher that Marden was becoming agitated, and requested that he be returned to his cell.

         A video camera located in Jack Marden's cell captured the events that followed. When Lieutenant Derocher, Deputy Saylor and Deputy Speich walked Jack Marden back to his cell, Marden initially entered the cell, but then exited and sat down on the ground. After a brief discussion, the three officers attempted to guide Marden back into the cell, at which time he began physically resisting and fighting the officers. The officers then lifted Marden up and placed him in the cell. During this encounter, Marden took Lieutenant Derocher's radio from his belt and called for help. Marden was eventually subdued and placed in the cell.

         As a result of this incident, Nurse Latty organized an informal debrief with Captain Harnois, Lieutenant Derocher, Ms. Boulton, and Deputy Speich. See Derocher Dep. 36, ECF No. 64-29. Nurse Latty then began making arrangements for Marden to be transported to the MidMichigan Medical Center's Mental Health Unit. See Latty Dep. 29-30. The jail employees then formulated a plan to transport Marden in a way that would minimize the risk of incident. Captain Harnois ultimately ordered members of the Corrections Emergency Response Team (“CERT”) to put on protective equipment designed to protect law enforcement officers from injuries and prevent officers from inflicting unnecessary injuries upon the individual being subdued. See Derocher Dep. 58. Lieutenant Derocher did not put on any protective gear himself.

         Back in his cell Marden continued behaving erratically. After lying on his bed mat for about nine minutes, Marden removed his jumpsuit and urinated on it. He also wiped urine and feces on his naked body and soaked his blanket in toilet water. For the next half hour Marden alternated between lying on his mat and crouching behind a waist-high barrier that separated the bathroom portion of his cell from the bed mat.

         The following events were captured not only by the cell camera, but also by a hand-held video and audio recorder operated by Captain Harnois. At approximately 12:02 p.m. the Officer Defendants entered Jack Marden's cell. Marden responded by throwing the urine-soaked blanket and jumpsuit at the officers. The Officer Defendants, including Lieutenant Derocher, restrained Marden against the wall in the bathroom portion of the cell and forced him to the ground under the sink. As Marden continued to struggle, the deputies attempted to restrain his extremities, with Derocher attempting to control his head. During the struggle, Marden grabbed Derocher's testicles. While this event is not caught on video, Derocher can be heard yelling, “Oh you fucking asshole! Fucking let go of my balls! God damn it! Let go of me. Let go of me!” In response Derocher punched Marden in the head three times until Marden released his testicles and Derocher was able to place his shin on top of Marden's arm. Marden was repeatedly advised to “stop resisting.” Once Marden was confined, Nurse Laura Sasse, R.N., injected him with a shot of Haldol.

         As minutes passed, Marden continued to struggle and began breathing heavily. Perceiving that the still-struggling Marden was attempting to spit on him, Lieutenant Derocher requested that Deputy Saylor retrieve a spit hood to place over Marden's face. A spit hood is a mesh polyester bag that is placed over a person's head. See ECF No. 49-22. Marden told Derocher to take the spit hood off of him, to which Derocher responded, “we're trying to let you breath, brother, but you've got to relax man. You gotta stop fighting us. Alright?” Marden repeatedly informed Derocher that he was having trouble breathing, to which Derocher repeatedly responded that Marden needed to relax.

         About a minute after the spit hood was placed on Marden's face, Lieutenant Derocher requested a nurse and reported that Marden was experiencing agonal breathing. He also requested that someone quickly call 911. After again advising Marden to relax, Lieutenant Derocher ordered the Deputies to move Marden out from under the sink. He also advised the deputies to keep Marden in a position where there was no weight on his chest. While Marden's breathing temporarily improved, Derocher expressed concern to a nurse about Marden's agonal breathing. Derocher did not to remove the spit hood due to Marden's active resistance. Marden again stated that he could not breathe.

         After Marden's breathing again worsened, a nurse advised that placing Marden in a chair would be beneficial. The officers therefore lifted a still-struggling Marden and placed him onto a chair. As they were strapping Marden in, an officer noted that Marden's hands were “coloring out” and turning white. Marden again asked that the spit hood be removed and requested water.

         After sitting in the chair for about a minute Marden began to lose consciousness. Nurse Sasse advised the officers remove the spit hood in order to facilitate Marden's breathing in response to an inquiry from Captain Harnois. She agreed with Captain Harnois's suggestion that the spit hood could be contributing to a sense of claustrophobia. As the spit hood was removed - just under ten minutes after the incident began - Marden lost consciousness. The officers therefore removed him from the chair, placed him on the ground, and began performing CPR. Marden was described as being in “full arrest.” Emergency responders quickly arrived and transported Marden to the MidMichigan Medical Center by ambulance.

         Upon arrival it was determined that Marden was in acute cardiac pulmonary arrest. Marden died two days later, on February 13, 2015 at 2:30 p.m. Plaintiff alleges that the death was proximately caused by “the needless, unnecessary, and violent assault on Jack Marden….” Compl. Plaintiff Sharyl Marden, as personal representative of Decedent's estate, responded by filing the present action against Defendants on December 31, 2015.


         Defendants now move for summary judgment as to each of Plaintiff's claims. A motion for summary judgment should be granted if the “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party has the initial burden of identifying where to look in the record for evidence “which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the opposing party who must set out specific facts showing “a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (citation omitted). The opposing party may not rest on its pleadings, nor “rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact but must make an affirmative showing with proper evidence in order to defeat the motion.” Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009) (internal quotations omitted). The Court must view the evidence and draw all reasonable inferences in favor of the non-movant and determine “whether the evidence presents a sufficient disagreement to require submission to a [fact-finder] or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52. The Officer Defendants and the Midland County Defendants have each filed a motion for summary judgment.


         In their motion for summary judgment, the Officer Defendants argue that qualified immunity shields them from Plaintiff's § 1983 claims. See Mot. Summ. J. II, ECF No. 51. Section 1983 provides in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

Id. To establish a claim under § 1983 a “plaintiff must establish both that 1) []he was deprived of a right secured by the Constitution or laws of the United States and 2) the deprivation was caused by a person acting under color of state law.” Redd ...

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