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Hubble v. County of Macomb

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

April 23, 2019

RUSSELL HUBBLE, as Personal Representative of the Estate of JENNIFER LYNN MEYERS, Deceased, Plaintiff,
v.
COUNTY OF MACOMB, et al, Defendants.

          David R. Grand United States Magistrate Judge

          OPINION AND ORDER (1) GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT (ECF NOS. 77 AND 82), AND (2) DENYING PLAINTIFF'S MOTION FOR SANCTIONS (ECF NO. 102)

          PAUL D. BORMAN, UNITED STATES DISTRICT JUDGE

         This action involves the tragic death of Jennifer Meyers, a 37-year-old woman who died as a result of acute sepsis while serving a thirty-day sentence at the Macomb County Jail. Her Estate has filed suit against Macomb County, the Macomb County Sheriff Anthony Wickersham (collectively “the Macomb County Defendants”), Correct Care Solutions, LLC (“CCS”), the health care provider for the jail, and several CCS staff.[1] The Complaint alleges that the Defendants caused Ms. Meyers's death by being deliberately indifferent to her medical needs and thus violating her rights under the Eighth Amendment to be free from cruel and unusual punishment.

         Both the Macomb County Defendants (ECF No. 82) and the CCS Defendants (ECF No. 77) have filed motions for summary judgment. In addition, the CCS Defendants have filed a motion to exclude the testimony of one of Plaintiff's experts, Dr. L.J. Dragovic (ECF No. 81), which is addressed in a separate Opinion and Order entered this same day. In addition, Plaintiff has filed a motion for sanctions directed to the CCS Defendants' failure to produce legible copies of certain health care records. (ECF No. 102).

         The Court held three separate hearings on the various motions on January 10, 18, and 24, 2019. For the reasons that follow, the Court GRANTS the Defendants' motions for summary judgment and DENIES the Plaintiff's motion for sanctions.

         I. FACTUAL BACKGROUND

         The facts, and all reasonable inference from those facts, are presented here in the light most favorable to the Plaintiff, as required on summary judgment.

         A. Ms. Meyers's Booking, Sentencing, and Housing in B-Pod

         On the evening of June 25, 2013, at about 7:30 p.m., Ms. Meyers was brought to the Macomb County Jail by Macomb County Sheriffs, having been arrested on outstanding warrants for a probation violation, Friend of the Court disorderly non-support, controlled substance possession, retail fraud, and two outstanding Detroit traffic citations. This was Ms. Meyers twelfth incarceration at the Macomb County Jail. (ECF No. 93-4, PgID 3131, Pl.'s Resp. to County Mot. Ex. 3, Office of Professional Standards Death Investigation Summary (“OPS Report”); ECF No. 82-2, PgID 2067, County Defs.' Mot. Ex. 1, Inmate Classification Notice). On her arrival at the jail on the evening of June 25, 2013, Ms. Meyers was pat searched by Correction Deputy Jennifer Bancroft who completed Ms. Meyers's initial classification/temporary assignment form. (OPS Report, PgID 3132.) Deputy Bancroft noted that Myers responded “no” to questions regarding suicidal risk and “no” to the question of needing immediate medical assistance. (Id.)

         Following her initial classification, Ms. Meyers was placed into Holding Cell 11 where she remained until approximately 9:00 p.m., when she was taken for medical screening, which was performed by CCS Nurse Bayly. (Id. PgID 3133; ECF No. 90-22, Pl.'s Resp. to CCS Mot. Ex. 21, Receiving Screening Form, PgID 2834-39.) Bayly's E-signed receiving medical screening form noted that Ms. Meyers had Chronic Hepatitis C and Bipolar disorder, and also noted that Ms. Meyers had been hospitalized two months prior to her incarceration for an infection/abscess to her right arm, that Ms. Meyers was an IV heroin user and had last used one month earlier, had been treated for substance/alcohol abuse in 2008/2009, and had a history of withdrawal after stopping alcohol and drugs, specifically nausea, sweats, and shakes after stopping opiates. (Id.) Nurse Bayly indicated that Ms. Meyers had previously taken a number of psychotropic medications but was currently not taking any medications. (Id.) Nurse Bayly noted that Plaintiff reported that she had been tested for pregnancy two days earlier and the results were “negative per hospital report per pt.” (Id.) Otherwise, Nurse Bayly noted that Ms. Meyers was in no distress, had vitals within the normal range (blood pressure 90/70, pulse 100, respiration 18, temperature 96.10, pulse ox 98, weight 210 and BMI 31), was not sweating, anxious, or disheveled in appearance, had no obvious physical abnormalities, and was alert and oriented. (Id.) Ms. Meyers electronically signed the medical screening form, attesting that she had given full answers to the questions and that she had received information on how to obtain/access medical services during her incarceration and consenting to treatment by CCS. Nurse Bayly also ordered that Ms. Meyers be placed in general population housing with a bottom bunk restriction due to complaints of back pain. (Id. at PgID 2838; ECF No. 82-4, PgID 2073, June 26, 2013 Memo to Jail Command). Ms. Meyers was returned to Holding Cell 11 at approximately 3:00 a.m. following her medical screening. (OPS Report PgID 3133.) Later that morning, June 26, 2013, at 8:30 a.m., Ms. Meyers was arraigned on the non-support warrant and sentenced to serve a thirty (30) days in the Macomb County Jail. She was booked and placed in Holding Cell 13 until later that afternoon when she was moved to “D Block, ” where she was housed in a common area with anywhere from 10-12 other inmates until June 29, 2013, when she was moved to Floor 6/7 and assigned to cell 6B3, the cell where she was housed until her death on July 7, 2013. (Id. PgID 3134; ECF No. 82-6, Sept. 8, 2017 Deposition of Jessica DeHate 79-80, PgID 216).

         From the time that Ms. Meyers was placed into 6B3 on June 29, 2013, until the date of her death on July 7, 2013, there were no reports written by jail staff relating to Ms. Meyers and only one sick call request from Ms. Meyers, received on Friday, June 28, 2013, indicating that she was having severe back pain and needed medical attention. (ECF No. 99, CCS Defs.' Supp. Ex. P, Affidavit of Lara Ianitelli, R.N., H.S.A. Ex. A, Sick Call Logs June 26, 2013 through July 16, 2013.)[2] As discussed in greater depth infra, CCS responded to that sick call request on Tuesday, July 2, 2013, when Ms. Meyers was seen by CCS medical staff and was given Tylenol and advised to apply heat to her back in the shower and instructed to “kite” (file another medical care request) again if pain persists. (OPS Report PgID 3134.) During this nine-day period, accounts of what transpired begin to diverge. Plaintiff's claims against Macomb County focus on the conduct of two corrections officers, Jessica DeHate and Kimberly (Hummel) Hill, and on the conduct of Sheriff Wickersham, both in his individual supervisory role and in his official capacity role as the person responsible for the policies and customs of the Macomb County Jail. While Plaintiff has not named officers DeHate and Hill as Defendants in this action, and does not intend to proceed against them individually, she relies on their alleged misconduct as a basis for her Eighth Amendment claims against the County and Sheriff Wickersham, as discussed infra.

         Officer Hill testified that her duties included making rounds on the inmates in Ms. Meyers's Pod (6B) once every hour, which involved looking into each individual cell to make sure the inmates are safe and secure. (County Defs.' Mot., ECF No. 82-5, Sept. 1, 2017 Deposition of Kimberly Hill 13-16, PgID 2088-91.) Officer Hill does her visual inspection, makes sure that the inmates are safe and secure and that none of them have questions for her or any kites to give her, before moving on to the next unit. (Hill Dep. 19, PgID 2094.) If an inmate is sleeping, Officer Hill makes sure they are breathing and makes them aware that she is there so that if they have questions or kites, they can approach her. (Id. at 51, PgID 2126.) Officer Hill made rounds on Pod 6B approximately 33 times between June 29, 2013 and July 7, 2013, but has no recollection of Ms. Meyers ever complaining about any pain, or any issues relating to her medical condition during the ten days that she was there in 6B. Officer Hill testified that there was not a single time that Ms. Meyers came to Hill and talked to her directly. Officer Hill had no recollection at all of Ms. Meyers's physical condition - nothing stood out in her mind. (Id. at 15, 20-21, PgID 2090, 2095-96.) Ms. Hill recalled seeing Ms. Meyers, she just did not remember Ms. Meyers ever saying anything to her about her medical condition. (Id. at 27-28, PgID 2102-03.) Ms. Hill testified that usually if she notices that an inmate has been in their cell for some period of time, she would question it and would make sure the inmate was getting food trays and physically eating their food - but she did not remember one way or the other if this was happening with Ms. Meyers. Nor did Ms. Hill recall any type of odor emanating from Ms. Meyers or her cell or being told by other inmates that Ms. Meyers was in pain or that she smelled - she would have remembered if that had happened. (Id. at 28-31, PgID 2103-06.)

         The day of Ms. Meyers' death, Hill recalled that several inmates came up to her and Officer DeHate while they were in the process of feeding the inmates, and told them that they needed to check on Ms. Meyers. So Officers Hill and DeHate immediately went to Ms. Meyers's cell and found Ms. Meyers “hunched over in her [property] bin.” (Id. at 10, PgID 2085.) Officer DeHate began chest compressions and Officer Hill called medical and stood watch over the other inmates. Officer Hill could not tell if Ms. Meyers was breathing or if her face was blue but she did not touch Ms. Meyers. (Id. at 34-36, 53, PgID 2109-11, 2128.) Officer Hill was surprised to learn that Meyers had died because she had never noticed and was never alerted to any medical concerns with Ms. Meyers, Hill was never approached by any inmates about Meyers's medical condition and if she had been she would have approached Meyers herself to talk to her and called medical. (Id. at 37, 42, 44, 53, PgID 2112, 2117, 2119, 2128.) Officer Hill testified that typically the nurses collect the medical kites when they come to the floor each day to pass out medications, but if an inmate tries to give Officer Hill a medical kite, she asks the inmate if its urgent and checks to see if the inmate appears to be well, and if the inmate states that it is urgent, Officer Hill calls a nurse right away. (Id. at 43, PgID 2118.) If she had been approached by other inmates trying to hand her kites for Ms. Meyers, and telling her that medical was not accepting Ms. Meyers's kites, Hill would have gone straight to the command officer to report this because accepting kites is part of CCS's job. (Id. at 45, PgID 2120.)

         Officer DeHate recalled one conversation that she had with Ms. Meyers on 6B in which Ms. Meyers said she had back pain and Officer DeHate asked if she had kited medical to which Ms. Meyers responded “yes, ” and Officer DeHate suggested Ms. Meyers take a hot shower to help relieve the pain. (DeHate Dep. 21, PgID 2150.) Other than that interaction, Officer DeHate had no reason to believe that Ms. Meyers was in pain or was suffering with medical complications and was unaware of any other Officers who knew of complaints about Ms. Meyers's medical condition, nor was she aware of a smell so strong coming from Ms. Meyers's cell that you could smell it when you walked into the Pod. (Id. at 21-22, PgID 2150.) In fact, on the day of Ms. Meyers's death, at 4:10 p.m., just about an hour before inmates called Officers Hill and DeHate to Ms. Meyers's cell, Officer Hill had rounded on Ms. Meyers's cell and observed Ms. Meyers sitting on the edge of her bed looking down at the floor and appearing to be fine. (Id. at 32, 34-35, PgID 2152-54.) In a statement that Officer DeHate prepared just after the incident, Office DeHate stated that on Saturday, Ms. Meyers had another inmate grab her dinner because her back was hurting. Officer DeHate did not recall that at the time of her deposition. (Id. at 33, PgID 2153.) Officer DeHate testified that she is trained in CPR and other measures solely for purposes of first response. Officer DeHate first tried a sternum rub on Ms. Meyers which elicited no response and then proceeded with CPR, which she continued until medical arrived in less than five minutes and Medstar arrived approximately five minutes after medical. (Id. at 38-42, PgID 2154-55.) Officer DeHate never had another conversation with Ms. Meyers about her medical condition, does not recall Ms. Meyers ever looking like she was sweating profusely, and never heard from anyone else that Ms. Meyers was having physical problems. (Id. at 46-47, PgID 2156.) Officer DeHate testified, as did Officer Hill, that they are not typically supposed to accept medical kites, and if an inmate tries to hand her one she asks if it is a medical emergency, asks if the inmate needs to see a doctor right away, and if they say no she looks at them carefully to see if they are fine or if they are just lying and if they look fine she gives them back the kite and tells them to give it to the nurse when she comes up for rounds. (Id. at 57-59, PgID 2159.) Officer DeHate was not aware of any medical kites that other inmates were trying to submit for Ms. Meyers, she was never told by other inmates that Ms. Meyers had been in bed all week and was sick and sweaty and needed medical attention. (Id. at 61-62, 94-95PgID 2160, 2168.) Officer DeHate did recall that an inmate had approached her and told her that Ms. Meyers smelled badly and so when Officer DeHate had the one conversation with Ms. Meyers when Ms. Meyers complained of her back pain, Officer DeHate took the opportunity the suggest that Ms. Meyers take a hot shower. (Id. at 65, PgID 2161.) Officer DeHate did not recall Ms. Meyers ever having been seen by medical or taking her down to medical. (Id. at 72, PgID 2162.)

         In contrast to what Officers Hill and DeHate observed about Ms. Meyers's medical condition during her ten days on Pod 6B, several inmates who prepared statements at the time of Ms. Meyers death, and subsequently provided Affidavits in support of this litigation, suggest a very different picture of a woman who was suffering terribly (and visibly) and whose pleas for help were being ignored by both jail staff and CCS staff. Fellow inmate Rettia Macleod submitted an Affidavit stating that she had been housed with Ms. Meyers both in the D Block and on the 6B Pod. (ECF No. 93-5, Pl.'s County Resp. Ex. 4, Aug. 14, 2017 Affidavit of Rettia Jane Macleod PgID 3142.) Ms. Macleod states that during the entire time she was housed with Ms. Meyers, she watched Ms. Meyers suffering severe body aches and pains while lying on a thin pad in D Block and on her bunk in B Pod. Many inmates helped Ms. Meyers to shift on her bed to help her be more comfortable and lessen her pain. Ms. Macleod states that “many inmates” prepared kites for medical attention for Ms. Meyers while in B Pod and believes that the guards “must have known what condition” Ms. Meyers was in “because she could not get out of bed.” (Id. Pgid 3143.) Ms. Macleod noticed Ms. Meyers sweating “a lot, ” and smelling “like her flesh was rotting.” Ms. Macleod knew Ms. Meyers was suffering and needed immediate medical help. Yet corrections officers were doing nothing to help Ms. Meyers, “no matter how many times we wrote and handed in medical kites for her, ” and “nurses on rounds refused to examine Ms. Meyers even though they asked them to do so.” (Id. PgId. 3143.) Ms. Macleod recalled the name of Officer DeHate and testified that DeHate saw Ms. Meyers's condition and when Ms. Macleod asked DeHate to help Ms. Meyers, Officer DeHate responded that Ms. Meyers “was used to detoxing.” (Id. PgID 3143-44.) Ms. Macleod states that she is prepared to testify to the statements in her Affidavit. (Id. at 3144.) Ms. Macleod prepared a second Affidavit on September 22, 2017, adding that after she reviewed the names of the guards from the jail records provided to her by Plaintiff's attorney, she specifically recalled that Officer Franks, DeHate and Hummel (Hill) were frequently in B Pod during Ms. Meyers's incarceration and were told by her and many other inmates on the pod that Ms. Meyers needed immediate medical care. (ECF No. 93-6, Sept. 22, 2017 Affidavit of Rettia Jane Macleod, PgID 3148-49.)

         Fellow inmate Amy Sue Pregizer submitted an Affidavit stating that she was housed a few doors down from Ms. Meyers on B Pod. (ECF No. 93-7, Aug. 20, 2017 Affidavit of Amy Sue Pregizer PgID 3152-3155.) Ms. Pregizer testified that Ms. Meyers need for medical attention was dire and obvious as she was sweating constantly, “like she just go out of the shower, ” could barely move from her bunk and was having trouble breathing. (Id. PgID 3152.) Ms. Pregizer states that the smell coming from Ms. Meyers's cell was “was so bad that anyone taking a step into the unit could smell the smell.” Ms. Pregizer recites that several inmates complained about the smell to the guards and nurses but no one ever attempted to help Ms. Meyers. Ms. Pregizer states that the “the guards were aware of Ms. Meyers's need for medical care because we brought our concerns to the guards and nurses by telling them about Ms. Meyers and writing numerous medical kites/medical requests” and giving them “to the guards and nurses.” (Id. PgID 3153.) Ms. Pregizer testifies that she “knew for a fact that Deputy DeHate knew about the terrible smell coming from Ms. Meyers” because DeHate told inmates to shower, directing the comments to Ms. Meyers. (Id.) Ms. Pregizer testifies that the “guards knew the terrible condition Ms. Meyers was in, because the guards allowed [her] and other inmates to get many of her meals for her because she could not get out of her bunk.” (Id. PgID 3154.)

         Fellow inmate Carrie Shaw provides an Affidavit testifying that she was housed in B Pod on the floor just above Ms. Meyers and saw Ms. Meyers at least a few times every day for about one week prior to her death. (ECF No. 93-8, March 15, 2018 Affidavit of Carrie R. Shaw PgID 3157-60.) Ms. Shaw testifies that she knew Ms. Meyers from previous incarcerations and that she knew as soon as she saw Ms. Meyers that there was something wrong with her. Ms. Meyers asked Ms. Shaw to help make her bed because of her back pain, and Ms. Shaw noticed that Ms. Meyers was sweating a lot and that she smelled badly “even after she showered.” (Id. PgID 3158.) Ms. Shaw testifies that several inmates informed correctional staff, including DeHate, that Ms. Meyers could not get up to get her food and the officers allowed other inmates to take Ms. Meyers food trays to her in her cell. Ms. Shaw testified that corrections officers rarely spent more than a few seconds looking into inmates' cells during rounds and that even though officers, including DeHate, knew that Ms. Meyers was unable to leave her cell for days, they did not enter her cell to make an honest attempt to check on her until the day she died. (Id. PgID 3159.) Ms. Shaw testified that Ms. Meyers told her that Ms. Meyers had kited medical at least four times and when Ms. Shaw asked DeHate when Ms. Meyers was going to get medical attention, DeHate said “medical knew about” Ms. Meyers. (Id.)[3]

         B. Ms. Meyers's Medical Evaluations by CCS Staff

         The evidence establishes that Ms. Meyers sent a kite to medical, marked “Urgent, ” on Friday, June 28, 2013. (ECF No. 93-18, Pl.'s County Resp. Ex. 17, Kite, PgID 3180.) The kite form provides three boxes for rating the degree of medical need: Routine, Urgent, and Emergent. Ms. Meyers selected “Urgent” suggesting that her need was not routine but also was not an emergency. Ms. Meyers was seen on Tuesday, July 2, 2013, in response to that kite. (Id.) From the time that Ms. Meyers was placed into 6B3 on June 29, 2013, until the date of her death on July 7, 2013, there is only one sick call request from Ms. Meyers, received on June 28, 2013, indicating that she was having back pain and needed medical attention. (ECF No. 99, Ianitelli Aff., Ex. A, Sick Call Logs June 26, 2013 through July 16, 2013, PgID 3679.) CCS responded to that sick call request on July 2, 2013, when Ms. Meyers was seen by CCS medical staff and was given Tylenol and advised to apply heat to her back in the shower and instructed to “kite” (file another medical care request) again if pain persists. (OPS Report PgID 3134.) The nurse who responded to that kite, Stephanie (Noland) Jones, testified that she had no independent recall at the time of her deposition in July, 2017, of the one occasion that she saw Ms. Meyers. (ECF No. 90-20, Pl.'s CCS Resp. Ex. 19, July 12, 2017 Deposition of Stephanie (Noland) Jones 11, PgID 2813.) Nurse Jones testified that the only way she would be able to recall her care of Ms. Meyers would be to review the records that she prepared at the time she saw Ms. Meyers. (Id.) At the time that Nurse Jones saw Ms. Meyers, she was a Licensed Practical Nurse (“LPN”), having received her degree in 2010 and becoming licensed as an LPN in the State of Michigan. (Id. at 5, PgID 2812.) At that time, Nurse Jones had also received training and her degree to become licensed as a Registered Nurse (“RN”), but had not yet received her Michigan license to practice as an RN. (Id. at 9-10, PgID 2813.) LPNs are authorized to dispense oral medications, but not intravenous medications, and cannot independently diagnose or prescribe medications. (Id. at 6, PgID 2812.) As an LPN, Nurse Jones would pass medications from the med cart, pick up kites from inmates, triage patients on the intake process (do medical screening at booking), and take sick call, i.e. see patients who submitted kites. (Id. at 6-8, PgID 2812.)

         Nurse Jones resigned from her job with CCS in the summer/fall of 2014 and began working for an urgent care center. (Id. at 8, PgID 2812.) Nurse Jones had no recollection of Ms. Meyers at all, and when shown a picture of Ms. Meyers did not recall ever having seen her face. (Id. at 13-15, PgID 2814.) Nurse Jones did not learn of Ms. Meyers death until she received the notice for her deposition in this case in 2017. Although Nurse Jones was still on staff at CCS for almost a year after Ms. Meyers passed away, she never learned of her death. (Id.) From a review of the medical records that bore her signature, Nurse Jones stated that medical received only one kite from Ms. Meyers dated June 28, 2013, and that Nurse Jones saw her in response to that kite on July 2, 2013. (Id. at 23-25, PgID 2816-17; ECF No. 90-19, Pl.'s CCS Resp. Ex. 18, Correct Care Solutions Sick Call Request “Kite, ” PgID 2808.) In reviewing the June 28, 2013 Kite that both Nurse Jones and Ms. Meyers signed, Nurse Jones did not know what the “X” placed next to the word “Urgent, ” one of three choices - Emergent, Urgent, Routine - meant. (Jones Dep. 24-25, PgID 2817.) From reviewing her records Nurse Jones recalled that Ms. Meyers stated that her pain started nine days ago and that she had an MRI two days before coming to jail. (Id. at 27, PgID 2817; ECF No. 90-21, PgID ID 2830, 7/2/13 “Muscular Aches” Note for Jennifer Meyers.) The 7/2/13 Note contains a number of questions or inquiries that Nurse Jones was required to ask or actions that she was required to take to examine and assess Ms. Meyers. Nurse Jones's 7/2/13 Note further reflects that Ms. Meyers stated that the pain was in her lumbar area, that she did not know what she had done to injure her back, and Ms. Meyers “denied any exacerbating or relieving factors.” (Id.) Although Nurse Jones frequently reiterated in her deposition that she had no independent recollection of seeing or treating Ms. Meyers, Nurse Jones testified that based on her standard practice in taking medical records, she believed that the medical record was accurate. (Jones Dep. 32, PgID 2818.) Nurse Jones testified that she would have accurately written down what she found on her examination of Ms. Meyers. (Id. at 34, PgID 2819.)

         Nurse Jones's 7/2/13 Note states that Ms. Meyers's vital signs were all normal: pulse was 60 (within the normal range of 60-100), that her respiration was 16 (within a normal range of 12-20), that her blood pressure was 120/72 (within normal limits). (Id. at 32-33, PgID 2818-19; 7/2/13 Note, PgID 2830-32.) Nurse Jones's 7/2/13 Note reflects that she inspected Ms. Meyers's back, and Ms. Meyers was able to move through an entire range of motion of her back, which would mean bending over and straightening up. The 7/2/13 Note further reflects that Nurse Jones's examination revealed no bruising, swelling, redness, or heat to the touch. (Id. at 35-36, PgID 2819; 7/2/13 Notes at 1, PgID 2830.) Nurse Jones testified that although the 7/2/13 Note did not state Ms. Meyers's temperature, her standard practice and procedure would have been to take the temperature as part of the vital signs and the absence of a note regarding temperature was an indication that Ms. Meyers's temperature was not elevated. (Jones Dep. 57-60, PgID 2825.) Nurse Jones also testified that her standard practice and procedure when informed by an inmate of a previous outpatient test or study would be to ask where it was performed and the absence of a notation as to where Ms. Meyers had her MRI performed would mean that Ms. Meyers did not disclose that information to Nurse Jones. (Jones Dep. 57, PgID 2825.)

         As a result of the information gained through this examination, Nurse Jones assessed Ms. Meyers as “alteration in comfort, nonspecific.” (Jones Dep. at 36, PgID 2819; 7/2/13 Notes at 2, PgID 2831.) Nurse Jones explained that if there are no findings other than the patient's complaints of pain and minimal swelling in the area (and Nurse Jones found no swelling) without bony deformity, the protocol directs to “assess alteration in comfort, nonspecific.” (Jones Dep. at 37, PgID 2820; 7/2/13 Notes at 2, PgID 2831.) Nurse Jones concluded that the appropriate intervention was for “muscle pain from unaccustomed activity or exertion.” (Jones Dep. 39, PgID 2820; 7/2/13 Note 2831.) She advised rest for a few days and prescribed Tylenol 975 mg by mouth twice a day, indicated “if discomfort is severe.” (Id.) Nurse Jones's 7/2/13 Note also indicates that she recommended applying “the RICE sequence, ” which prescribed rest, ice, compression, and elevation. (Jones Dep. 39-42; 7/2/13 Note PgID 2831.) The 7/2/13 Note finally states that Nurse Jones gave “975 mg per nursing pathway, ” and educated Ms. Meyers to apply heat to her back in the shower, and that “if needed [she] can always put another kite in for back pain.” (Jones Dep. 43-45; 7/2/13 Note, PgID 2832.)

         CCS Nurse Karen (Creagh) Black was the Director of Nursing at CCS at the time of Ms. Meyers's death and was the supervisor who reviewed and E-signed both the Receiving Screening form completed by Nurse Bayly and the 7/2/13 Note prepared by Nurse Jones. (ECF No. 90-23, Pl.'s CCS Resp. Ex. 22, Aug. 13, 2017 Deposition of Karen (Creagh) Black, RN PgID 2841.) Nurse Black was first trained as an Emergency Medical Technician (“EMT”), later licensed by the State of Michigan as a paramedic, and became licensed as an RN in 2007. (Id. at 7-10, PgID 2843-44.) Nurse Black was hired to work at the jail (then Correctional Medical Services “CMS” had the contract for the Macomb County Jail - CCS took over in 2011) in late summer of 2008 as a RN, and was promoted to Director of Nursing at CCS in 2011. (Id. at 10-15, PgID 2844-45.) CCS corporate office sent someone to train her one-on-one for the Director of Nursing position, and reviewed CCS policies and procedures with her, mainly the NCCHC protocols and guidelines. (Id. at 15-16, PgID 2845.) During her time as Director of Nursing, all of her nurses were obligated to fulfill the obligations that existed in the NCCHC guidelines and she never experienced a circumstance where that was not happening on a consistent basis. (Id. at 20, PgID 2846.) Nurse Black left her job with CCS in 2014. (Id. at 17, PgID 2846.)

         She was aware of Ms. Meyers's passing and she participated in a postmortem review done by CCS following Ms. Meyers's death. (Black Dep. at 20-21, PgID 2846-47; ECF No. 26, Pl.'s Resp. Ex. 26, Mortality Review.) She was called and informed that an inmate had passed away and she was at the facility 30 minutes later. (Black Dep. 24, PgID 2847.) Nurse Black merely observed once she arrived and had nothing to do with transferring Ms. Meyers's body. (Id. at 27, PgID 2848.) Nurse Black participated in the mortality review related to Ms. Meyers's death but other than that she did not do any follow up to determine the cause of Ms. Meyers's death. (Id. at 37-38, PgID 2851.) The Mortality Review is a two-page document that consists of a number of fill-in-the-blank questions simply repeating some of what is contained in Ms. Meyers's jail medical records. (ECF No. 90-27, Pl.'s Resp. Ex. 26, PgID 2928.) The Mortality Review notes Ms. Meyers's past substance abuse of Heroin, her history of Hepatitis C, her Bipolar disorder, notes that she has no history of self-harm, had been hospitalized for rehabilitation from drug abuse in 2008-2009, and two months prior to incarceration had been hospitalized for an abscess on her arm. (Id.) The Mortality Review describes Ms. Meyers's mental state just prior to death as “sitting in cell talking, had eaten lunch, no complaints.” (Id.) Inmates confirmed that Plaintiff did come out of her cell to eat lunch on the day she passed. With regard to “potentially relevant precipitating factors, ” the review notes that she was not suicidal, and questioned whether her drug history was related to her death. (Id.) The review notes that there was an adequate up-to-date history and physical in the record, that she had received a mental health visit, that treatment given was consistent with the history given, and that follow-up was noted on the medical record. (Id.) The Mortality Review indicates that jail staff began CPR, medical placed an AED, and continued CPR until paramedics arrived. (Id.) The death was not attributed to a secondary diagnosis, appropriate care was noted as provided, all five individuals present for the Mortality Review agreed that there was “no way to see this coming and feel that all staff did the correct steps to save her.” (Id.) The Mortality Review is signed by Dr. Marcella Clark, MD, Kim Gerdes, RN, HSA, Karen Black (Black), RN, DON, Dr. Rozel Elacesui (spelling not legible), MD, and Natatlie Pacitto, MA, LPC, C&P (Id.) It is signed by a clinical specialist, CCHP, whose name is not legible. (Id.)

         Nurse Black as the supervising RN E-signed several of the medical records pertaining to Ms. Meyers, which meant that Nurse Black reviewed them for thoroughness and completeness - she verified that the document prepared by the nursing staff was completely filled out and all required information was provided. (Black Dep. 50-51, PgID 2854.) Nurse Black E-signed the Emergency Response Worksheet that was completed by the nursing staff who responded to Ms. Meyers's death in her cell at the jail which details the steps taken by jail and nursing staff in responding to Ms. Meyers's emergency and death. (ECF No. 78, Sealed Macomb County Jail Records, PgID 1958; Black Dep. 42, PgID 2852.) The nursing staff also completed a “Man Down Form” when they responded to Ms. Meyers emergency. (Black Dep. 96-97, PgID 2865; ECF No. 78, PgID 1960.) Nurse Black E-signed the Medical Screening Form discussed supra. (ECF No. 78, PgID 1969; Black Dep. 74-75, PgID 2860.) Nurse Black also E-signed the “Muscular Aches” pathway form completed by Nurse Jones and discussed at length supra. (ECF No. 78, PgID 1978.) Nurse Black explained that the Muscular Aches form is a standard nursing pathway utilized by CCS, a “SOAP” pathway - subjective, objective, assessment and plan - for the sick call nurse to follow when seeing a patient. (Black Dep. 48-49, 60-61, PgID 2853-54, 2856-57.) The sick call nurse prepares an “assessment, ” not a diagnosis - and here Nurse Jones assessed “alteration in comfort nonspecific.” (Black Dep. 64-65, PgID 2857-58.) Nurse Black confirmed that the medical records pertaining to Ms. Meyers contained only one kite and she explained that kites are “logged” when they are submitted but she had never seen the log that would indicate how many kites Ms. Meyers had submitted. (Black Dep. 49-55, PgID 2854-56.)

         Nurse Black explained that when a nurse picks up kite, she is instructed to look at it for any “emergent life-threatening issues that need to be addressed right away, ” put the kite in the med cart for privacy, and take it back to the medical unit where she logs the kites onto a sheet. (Black Dep. 54, PgID 2855.) Nurse Black explained that her understanding of the designation “urgent” on the kite form means that the inmate should be seen sooner rather than later. (Black Dep. 46-47, PgID 2853.) Nurse Black explained that the four-day wait that Ms. Meyers experienced between her June 28, 2013 kite and her July 2, 2013 appointment with the nurse could have been due to the fact that sick-call nurses are only staffed Monday through Friday and that if a nurse on Friday does not indicate an issue is emergent/life-threatening, it may not be seen until the following Monday. (Black Dep. 52-54, PgID 2854-55.)

         Nurse Black testified that the nursing staff is trained to follow through if an inmate indicates that they have recently had an MRI exam (or presumably other diagnostic test). (Black Dep. 62-63, PgID 2857.) She testified that this is policy that they are trained to follow if the inmate indicates the location where they had the exam. (Id.) In this case, CCS was alerted to the fact that Ms. Meyers had an MRI two days prior to her arrest and they were aware that she had been in the hospital two days prior to her arrest because the records indicate that she had been “tested 2 days ago for pregnancy - negative per hospital report per pt.” (Black Dep. 88-89, PgID 2863-64, ECF No. 78, Medical Receiving Screening PgID 1965.) There was no specific information identifying the reason for the MRI.

         Nurse Black explained her understanding of the condition of “acute sepsis” as an infection that came on suddenly. She testified that CCS does not provide training specific to “acute sepsis, ” but that many pathways and protocols are designed to detect infections, such as the muscular aches pathway employed in Ms. Meyers's case - if following that pathway had led to other objective findings, such as any abnormal vitals, then another pathway would be indicated. Nurse Black testified that the symptoms she would expect to see with an infection would be diarrhea, confusion, fever, chills, sweating (could be present), generalized aches and pains and fatigue, but not necessarily debilitating pain and not “a foul smell.” (Black Dep. 112-117, PgID 2869-71.)

         Significantly, Ms. Meyers was scheduled for a history and physical, which policy required to take place within 14 days of admission to the jail, and for a doctor's visit due to her chronic hepatitis, which was to occur per standard policy and as indicated on the intake forms within 30 days of admission to the jail. Of course, Ms. Meyers passed before the 14-day and 30-day appointments were scheduled to occur and there is no documentation in the records that those appointments were actually scheduled - they would have been automatically populated at the appropriate time, according to Nurse Black. (ECF No. 78, Initial Mental Health Evaluation, PgID 1974-75; Intake Nursing Interventions - Hepatitis and/or Jaundice, PgID 1962; Screening and Receiving PgID 1968; Black Dep. 56-60, 83-84, 86-87, PgID 2855-56, 2862-63.)

         Ms. Meyers was also referred on intake for a mental health screening, which occurred on July 3, 2013, the day after her appointment with Nurse Jones. (ECF No. 78, Initial Mental Health Evaluation PgID 1974.) Ms. Meyers was seen by Limited Licensed psychologist (“LLP”) Chantalle Brock, who has a Bachelor of Arts from the University of Michigan, with a minor in women's studies, and a Master of Arts in clinical psychology from University of Detroit Mercy. (ECF No. 77-5, CCS Def.'s Mot. Ex. 5, July 14, 2017 Deposition of Chantalle Brock 8, PgID 1812.) Ms. Brock did not have an independent recollection of Ms. Meyers at the time of her deposition but was able to discuss her interaction with Ms. Meyers through a review of her records. (Id. at 9, PgID 1813.) Ms. Brock had nothing to do with Ms. Meyers's physical medical care and saw her on July 3, 2013, for an initial mental health evaluation. Ms. Brock noted Ms. Meyers had a history of having taken a number of prescription drugs, heroin use, denied suicide attempts, bipolar disorder, but no current medications. (Brock Dep. 16-18, PgID 1814-15; ECF No. 78, Mental Health Evaluation PgID 1975.) Ms. Brock noted Ms. Meyers as presenting “stable and appropriate” with “goal-directed thought processes, ” willing and able to engage with her clearly and coherently. (Id. at 18, PgID 1815; ECF No. 78, PgID 1975.) Although Ms. Brock was not specifically addressing medical condition, her notation that she “presented appropriately” without further notation suggested that they had an appropriate interaction - her speech was clear and coherent, her mood was stable. (Id.) Ms. Brock's notes indicate that Ms. Meyers reported that she had last used heroin nine days ago. (Id. at 21-22, PgID 1816; ECF No. 78, PgID 1975.) Ms. Brock educated Ms. Meyers on how to kite for mental health and did not schedule her for follow up because Ms. Meyers was appropriate and oriented and stable and denied any need for mental health services. (Brock Dep. 29-32, PgID 1818; ECF No. 78, PgID 1975.)

         C. Sheriff Wickersham's Involvement, the Jail Administrator's Role and the Relevant Jail Policies and Procedures

         Sheriff Anthony Wickersham testified that he has been the Sheriff of Macomb County continuously since January 1, 2011. (ECF No. 82-8, County Defs.' Mot. Ex. 7, Dec. 4, 2017 Deposition of Anthony M. Wickersham 6, PgID 2194.) It is undisputed that Sheriff Wickersham had no personal involvement with Ms. Meyers's and was unaware of her medical condition until after she had passed and her death was reported to him. Wickersham testified that he is the top policy maker for the Macomb County Sheriff's Office, he has full responsibility for the Macomb County Jail and that his jail administrator at the time of Ms. Meyers death, Michelle Sanborn, was the policy maker to whom he delegated the authority to make policy for the jail, including overseeing the hiring and oversight of healthcare providers, including the contract with CCS that was in effect on the date of Ms. Meyers's death. (Id. at 9-11, 15, 24, 44-45, PgID 2195, 2196, 2198, 2203-04.) Ms. Sanborn does not have medical training but she oversees the contract with CCS and ensures that the services outlined in the contract are honored. (Id. at 45-46, PgID 2204.) There are approximately 1200 inmates in the jail on any given day and the jail processes between 17, 000 and 19, 000 inmates per year. (Id. at 17, PgID 2197.) Sheriff Wickersham spends less than one hour per week actually in the jail, although his office is in a building adjacent to the jail. (Id. at 23-24, PgID 2198.) Sheriff Wickersham has no personal involvement in the healthcare needs of inmates unless something is specifically brought to his attention. (Id. at 27-28m PgID 2199.)

         Sheriff Wickersham was called and did arrive at the scene of Ms. Meyers's death on July 7, 2013. (Id. at 29, PgID 2200.) Sheriff Wickersham understood his constitutional duty was to provide inmates the healthcare that they need and to attend to those needs as requested. Inmates are given information on how to “kite” or request to be seen by medical when they are booked, which explains that forms for “kiting, ” or requesting to be seen by medical personnel, are available upon request and are generally to be given to the nursing staff on their rounds. However, if an inmate is experiencing an emergency, they can contact the correctional staff and they will be taken care of immediately if the correctional staff or supervisor determines that the need is immediate. The correctional staff are not medical personnel but have emergency response medical training and are trained to determine whether an inmate is having pain or significant difficulty and if so, to reach out to the medical staff immediately. (Id. at 33-39, PgID 2201-02.) Sheriff Wickersham did not recall an instance when a violation of the policy regarding the process for submitting kites was brought to his attention. (Id. at 40, PgID 2202.) Sheriff Wickersham explained that if an inmate feels aggrieved by having kites ignored, there is a grievance process available for the inmate to bring that to the attention of the jail staff and have the grievance investigated. (Id. at 41-42, PgID 2203.)

         With respect to any investigation into Ms. Meyers's death, Sheriff Wickersham reviewed the OPS Report prepared by Sergeant Medley to determine whether there were any violations by jail personnel. He satisfied himself that there were not and thus did not seek, although he could have, further investigation of the incident by another county sheriff, or the FBI, or any other agency. (Id. at 48-52, PgID 2204-05.) Sheriff Wickersham did not review any of the fellow inmate witness statements that were prepared on the date of Ms. Meyers's death although Sergeant Medley's OPS Report references those statements. (Id. at 52-53, PgID 2205-06.) Sheriff Wickersham believes that the all jail staff acted appropriately with respect to Ms. Meyers's death although he admitted that having to wait five days to see health care for “severe pain” was not an adequate “immediate” response. (Id. at 56-60, PgID 2206-07.) Sheriff Wickersham testified that CCS does its own post-death mortality review and the jail does its own separate in-house review, which was conducted by Ms. Sanborn. Sheriff Wickersham did not attend either mortality review and typically does not attend them. (Id. 81-82, PgID 2213.) Sheriff Wickersham was not aware of a policy expressly requiring jail staff to monitor inmates's food and water intake. (Id. at 89-90, PgID 2215.) Sheriff Wickersham confirmed that the jail contracts with CCS to provide health care to the inmates and CCS is allowed to develop their own policies and procedures for providing that care, making CCS the policy maker for health care at the jail, although the jail has ultimate responsible for the health care and treatment of the inmates, and ensures that CCS is abiding by its contractual obligations through various accreditations that the jail is required to obtain. (Id. at 104-07, PgID 2218-19.)

         Sheriff Wickersham provides an Affidavit establishing that he never met Ms. Meyers, never had occasion to be in contact with her until after her death - he was not even aware that she was incarcerated at the jail. (ECF No. 82-9, County Defs.' Mot. Ex. 8, Sept. 28, 2017 Affidavit of Anthony Wickersham, PgId. 2243.) He did not directly supervise Ms. Meyers's housing unit or discuss her housing or medical condition with any command or corrections officer prior to her death. Her death was the first and only death at the Macomb County Jail of acute sepsis. (Id.)

         Michelle Sanborn, the jail administrator at the time of Ms. Meyers's death, provides an Affidavit explaining that she never met with Ms. Meyers and did not have personal involvement with her at anytime prior to her death. (ECF No. 82-10, Oct. 1, 2018 Affidavit of Michelle Sanborn, PgID 2247.) Ms. Sanborn explains that ever since 1990, including, 2013, the Macomb County Jail has met the Michigan Department of Corrections (“MDOC”) compliance requirements, including being the first “mega jail” (over 1, 000 beds) in Michigan to receive the coveted 100% compliance award. In addition to meeting all MDOC compliance requirements, the County practices and the Sheriff's General Orders have met the rigorous standards of the National Commission on Correctional Health Care (“NCCHC”), which is a widely recognized independent body that monitors the compliance of correctional facilities around the country with 67 different standards. To be accredited, a facility must comply with 100% of the standards deemed “essential, ” and must be 85% compliant with the standards deemed “important.” Between January 7-9, 2013, NCCHC inspectors conducted an on-site review of the Jail and its policies and practices and audited medical records for compliance and granted accreditation following their review. The Macomb County Jail has been continuously accredited by the NCCHC since 1998. Ms. Sanborn is familiar with (indeed drafted) the Macomb County Sheriff's General Orders (some of which are under review in this case) and testifies that each of these policies (5.01, 5.02, 5.04, 5.07, 5.11, 5.12, 5.13, 5.16, 5.19, 5.45) is in compliance with MDOC rules for jails and lock ups, and in compliance with the American Correctional Association Standards for Adult Local Detention Facilities and the NCCHC. (Id. PgID 2247-49.)

         In specific, Ms. Sanborn testifies that General Order 5.45 (“Prisoner Health Care”), defers all medical judgment to the health care professionals with whom the jail contracts, as required by the MDOC Administrative Rules for Jails and Lock Ups and in compliance with the NCCHC standards to prevent corrections staff from making medical decisions. (Id. PgID 2249-50.) In 2011, a committee was formed and the County retained an independent benefits services manager to consult on selecting the most qualified health care provider. The contract was awarded to CCS in September 2011, and the County entered into an Inmate Healthcare Services Management Agreement with CCS that complies with all NCCHC standards. Ms. Sanborn actively monitors the Agreement and CCS to make sure that constitutionally adequate care is being delivered to the inmates. Ms. Sanborn has contact on a daily basis with CCS health care staff, she observes medical rounds on the floors, clinical activities, screenings, history and physicals, and emergency responses. She attends monthly CCS Medical Advisory Committee meetings and quarterly Continuous Quality Improvement meetings, at which all aspects of prisoner health care are discussed and evaluated. (Id. PgID 2250-51.) Ms. Sanborn conducts audits of CCS screenings, initial health assessments, and segregation rounds in order to monitor compliance with NCCHC standards. In the event that non-compliance is revealed, she personally works with CCS staff to bring the procedures back into compliance. (Id. PgID 2251.) The County also hired Health Decisions, Inc., an independent contract monitoring firm, to assist the County in overseeing the CCS contract. (Id. PgID 2252.) Ms. Sanborn's Deposition mirrors her Affidavit. (ECF No. 82-14, County Defs.' Mot. Ex. 13, Sept. 28, 2017 Deposition of Michelle Sanborn.)

         Macomb County Lieutenant Lori G. Misch provides an Affidavit attesting to the training that all Macomb County Corrections Officers receive. All Corrections Officers are required to complete a “Corrections Academy” within their first year of employment, which includes 160 hours of classroom training on the following topics: Booking and Intake: 8 hours; Correctional law: 16 hours; Cultural Diversity: 4 hours; Custody and Security: 24 hours; Defensive Tactics: 40 hours; Ethics: 2 hours; Fire Safety: 12 hours; First Aid/CPR/AED: 8 hours; Interpersonal Communications” 16 hours; Prisoner Behavior: 8 hours; Report Writing: 8 hours; Workplace Harassment: 2 hours; Stress Management: 4 hours; and Suicide Awareness: 8 hours. (ECF No. 82-12, County Defs.' Mot. Ex. 11, Oct. 1, 2018 Affidavit of Lori G. Misch ¶¶ 3-4.) In addition, each officer is required to complete an additional 20 hours of in-service training on an annual basis. (Id. ¶ 5.) The modules on Custody and Security, Prisoner Behavior, Suicide Awareness, Interpersonal Communication, and First Aid/CPR/AED are directed to training in the safety and well-being of inmates. (Id. ¶ 8.)

         D. The Medical Expert Testimony

         1. Plaintiff's Medical Expert

         Plaintiff's medical expert, Susi Vassallo, MD is a clinical professor of Emergency Medicine at the New York University School of Medicine. (ECF No. 90-28, Pl.'s Resp. Ex. 27, Feb. 15, 2018 Expert Report of Susi Vassallo, PgID 2930-34.) Defendants do not appear to question Dr. Vassallo's expertise or training, who had practiced Emergency Medicine at Bellevue Hospital in New York, which is the primary receiving hospital for male prisoners of Rikers Island Jails. (Id. at PgID 2930.) In addition to her MD, Dr. Vassallo also has a Master's Degree in Health Care Management and is a Certified Correctional Health Professional, who has been qualified to act as a medical expert in multiple federal courts. (Id.)

         Dr. Vassallo begins her medical opinion with a discussion of Ms. Meyers's hospital records from her treatment there on Friday, June 21, 2013, two days before she was arrested and incarcerated at the Macomb County Jail. (Id. at PgID 2931; ECF No. 80, Defs.' Mot. Ex. I, St. John Hospital 6/21/2013 MRI Report, PgID 2000-02.) Dr. Vassallo reports that Ms. Meyers's history, physical exam and testing at St. John's Hospital found that she had a staph infection in her blood and urine, and a spinal epidural abscess. She received one dose of IV antibiotics at St. John's and was discharged on oral antibiotics. (Id.) Dr. Vassallo opines that when Ms. Meyers entered the jail on June 25, 2013, her vital signs were abnormal, she was tachycardic with a pulse rate of 100 bpm, and her blood pressure was low, both signs of sepsis. Her temperature was 96.1, two degrees below normal. Dr. Vassallo opines that these abnormal vital signs and knowledge of the recent hospital visit should have triggered immediate medical attention. (Id. at PgID 2932.) Dr. Vassallo is critical of the four-day wait Ms. Meyers experienced before obtaining medical care after kiting, and finds that the absence of a record of Ms. Meyers's temperature by Nurse Jones on July 3, 2013 was a failure to obtain a critical vital sign. (Id.)

         Dr. Vassallo opines that Nurse Jones was operating outside of her scope of practice when she attempted to diagnose Ms. Meyers's condition and assessed her as “alteration in comfort - nonspecific.” (Id. at PgID 2933.) Dr. Vassallo opines that Nurse Jones was insufficiently trained to recognize the serious medical needs of Ms. Meyers and she opines that both CCS and the jail are at fault for placing a health care provider without sufficient credentials or training to identify Ms. Meyers's serious medical need, and these failures led to Ms. Meyers's death. Dr. Vassallo opines that had Ms. Meyers's been properly diagnosed and treated for her bacterial infection, she would have lived. (Id.)

         Dr. Vassallo was deposed in this case, and explained her extensive medical background, and resident teaching experience, none of which is questioned by the Defendants. (ECF No. 77-12, June 28, 2018 Deposition of Susi Vassallo, MD PgID 1894.) Dr. Vassallo testifies that she always teaches her residents that the doctor, not the patient, is the historian and that the examining physician's role is to identify a risk factor, or an abnormal vital sign, or a complaint and drill down in a very proactive way. (Vassallo Dep. 29, PgID 1902.) Dr. Vassallo states, for example, that if she hears a heroin addict complain of back pain, she goes to the most serious pathology because heroin users get infections in their spines. (Id. at 33-34, PgID 1903.) Dr. Vassallo is of the opinion that LPNs and RNs, while they may not have the expertise to diagnose, must have the knowledge sufficient to know when to ask for a higher level of care. (Id.) Dr. Vassallo admits that there is no evidence in the records of this case that Ms. Meyers told any of the CCS or jail staff where she had her MRI performed, only that she had an MRI and was in the hospital two days prior to her arrest. (Id. at 49, PgID 1907.) Dr. Vassallo admits that Ms. Meyers's vital signs were within the normal range for an adult at intake at the jail, but Dr. Vassallo says that in the context of a heroin user, normal is no longer normal. (Id. at 50-54, PgID 1907-08.) Dr. Vassallo states that if her heart rate was high due to nervousness or anxiety, her blood pressure and temperature would not be low. (Id. at 53-56, PgID 1908.) Dr. Vassallo admits that none of Ms. Meyers's other conditions, chronic Hepatitis C or bipolar disorder, were in anyway related to her sepsis. (Id. at PgID 1909.) Nor was her arm abscess from two months earlier connected to her sepsis. (Id.) Dr. Vassallo was critical of the brevity of the intake screening form but most critical of Nurse Jones's failure to follow up on the fact that Ms. Meyers was a heroin user and was in the hospital two days prior for a pregnancy test and had an MRI of her back, and the failure of the records to reflect each question asked and the answers given. (Id. at PgID 1910-11.) Dr. Vassallo also understands the term “urgent” to mean someone is in need of immediate medical attention and “emergent” means call 911. (Id. at 67-69, PgID 1911-12.) Dr. Vassallo opined that the definitions of “emergent, urgent, routine, ” should have been spelled out in the CCS policy and not left to the discretion of the CCS nurses. (Id.)

         The essence of Dr. Vassallo's opinion is that Nurse Jones should have realized that when a heroin user presents with back pain, its likely not a muscular ache but more likely a bony infection of some type. (Id. at 77, PgID 1914.) She does not dispute that Nurse Jones stated that she did take Ms. Meyers's temperature and if she had found it elevated, she would have proceeded down a pathway for fever. (Id. at 82-85, PgID 1915.) Dr. Vassallo opines that the absence of a recorded temperature is “absolutely outrageous, ” as was the assessment of “muscular ache.” (Id. at 85-86, PgID 1916.) Dr. Vassallo testifies that if you have worked with prisoners and heroin addicts as she has, you know that back pain and low temperature mean that the person is dying of an infection and that Nurse Jones should have known that Ms. Meyers's vitals were not normal for a heroin user and should have provided different treatment. (Id.) Her opinion is that an LPN, an RN or any medical provider would have known that Ms. Meyers was in a critical condition. She opines that because CCS staffed sick call with somebody who had no medical knowledge and assessed a muscular ache, Ms. Meyers died. (Id. at 89-91, PgID 1917.) Dr. Vassallo admits that the SOAP form prepared by Nurse Jones does not contain any findings that would have directed Nurse Jones down a different pathway, but her criticism is that Nurse Jones did not look closely enough. (Id. at 94-96, PgID 1918.) The pathway that Nurse Jones was following, in Dr. Vassallo's opinion, did not direct Nurse Jones to ask any of the important questions in this case. Her SOAP form finds no abnormalities but she was not asking the right questions, not looking for the right things, because this pathway led her down the wrong path. (Id. at 97-100, PgID 1919.) Dr. Vassallo opines that when Nurse Jones found “severe discomfort” back pain (which the records indicate Ms. Meyers's complained of because Nurse Jones prescribed Tylenol which is only indicated in the pathway for “severe discomfort”) in an IV heroin user who just had an MRI of her back, it was obvious to any medical professional that Ms. Meyers was in critical condition. (Id. at 101-03, PgID 1920.)

         In the end however, Dr. Vassallo does not place the blame on Nurse Jones, and states that “through no fault of her own” Nurse Jones was insufficiently trained to recognize Ms. Meyers's condition and was directed down the wrong the pathway. (Id. at 104-06, PgID 1920-21.) When informed that, under Michigan's Public Health Code, an LPN may perform nursing activities under the supervision of a nurse or a physician, Dr. Vassallo withdrew her opinion that Nurse Jones was not qualified to evaluate Ms. Meyers. (Id. at 110-12, PgID 1922.)

         Dr. Vassallo expressed the same opinion with regard to Nurse Black, who was the Director of Nursing and who, when seeing the information collected by Nurse Jones, i.e. a heroin user with back pain who had been seen in a hospital two days earlier and undergone an MRI, should have recognized a life-threatening situation and should never have signed off on Nurse Jones's report. Dr. Vassallo opines that Nurse Black should have elevated Ms. Meyers to see a doctor - but she stops short of saying that Nurse Black actually appreciated the significance of Ms. Meyers's condition and chose not to move her to higher level of care - specifically she stated that she did not “know what [Nurse Black] did or did not appreciate, ” and “d[id] not know what was in her mind.” She only knows what she should have done. (Id. at 113-117, 124-28 PgID 1923, 1925-27.) Dr. Vassallo had no opinion regarding Chantalle Brock's treatment of Ms. Meyers, or Kelly Hedtke's, or any other individual CCS Defendant. (Id. at 116-18, PgID 1923-24.)[4]

         2. Defendants' Medical Experts

         Defendants' correctional nursing expert, Kathryn J. Wild, RN, MPA, CCHP-RN, who has been an RN since 1984 and has worked in the correctional healthcare field for the past 31 years, opines that the medical intake screening completed on Ms. Meyers on her admission to the jail met with the NCCHC, MDOC, and CCS policies and procedures for inmate receiving screening. (ECF No. 77-11, Defs.' Mot. Ex. K, March 19, 2018 Expert and Supplemental Report of Kathryn J. Wild 9-12, PgID 1885-85.) Ms. Wild notes that at the time of screening, Ms. Meyers was alert and oriented, and denied using any illegal substance within a month of her booking. Her vital signs were normal, and although she had a history of prior drug use, there was no indication that she should be placed on withdrawal monitoring. Ms. Meyers was appropriately referred chronic care and mental health follow up. (Id. at 10, PgID 1886.) Ms. Wild opines that health care personnel must rely on the patient to report accurate information during screening and that there was nothing in Ms. Meyers's presentation or prior incarceration history that required additional or different referrals. (Id.) Ms. Wild opines that Nurse Jones's July 2, 2015 assessment and intervention level was well within the standard of care based on Ms. Meyers's presentation of complaint of pain in her lumbar area with no obvious abnormalities noted and normal vital signs. (Id. at 11, PgID 1887.) Ms. Wild opines in her Supplemental Report, in response to Dr. Vassallo's opinions regarding Nurse Jones's scope of practice, that under Michigan's Public Health Code, an LPN may perform nursing activities under the supervision of a nurse or a physician. (Id. at PgID 1890.) Nurse Jones's assessment of Ms. Meyers was reviewed by the supervising nurse, Nurse Black the next morning and Nurse Jones was working well within her scope of practice as an LPN in the State of Michigan. (Id. at PgID 1890.)

         Defendants' medical expert Arnold J. Feltoon, MD, FAAEM, CCHP, opines that Ms. Meyers gave no information as part of her medical screening that would suggest any recent or concurrent acute illness, and that at the time of her examination by Nurse Jones on July 2, 2013, there was nothing to suggest any type of serious illness or injury. (ECF No. 77-13, CCS Defs.' Mot. Ex. M, July 14, 2017 Expert Report of Arnold Feltoon 4-5, PgID 1944-45.) Dr. Feltoon opines that because Ms. Meyers was not forthcoming with nursing staff about the type of MRI she had or the reason the test was ordered, or the results of the MRI, there was no reason to connect the MRI with a 9-day history of back pain. (Id. at 1945.) Dr. Feltoon opines that Ms. Meyers died from multiple infectious processes likely caused by her IV drug abuse and there is no evidence that her condition changed between July 2, 2013, when she was evaluated by Nurse Jones, and July 7, 2013, when she died. (Id.)

         Defendants' medical expert, Dr. Randall R. Stoltz, MD, CCHP, notes that Ms. Meyers denied any need for medical attention when she entered the jail on June 25, 2013, and she did not mention any previous MRI or back pain during her receiving screening, when she appeared normal and oriented and expressly denied sweats or fatigue. (ECF No. 77-14, CCS Defs.' Mot. Ex. N, July 13, 2017 Expert Report of Randall Stoltz at 4, PgID 1951.) Dr. Stoltz opines that on July 2, 2013, Ms. Meyers had good range of motion and no other symptoms apart from back pain that started nine days earlier and it is unsurprising that Ms. Meyers was laying in her bunk often as she had explained to fellow inmates that she had broken her back. (Id. at PgID 1952.) Dr. Stoltz opines that if Ms. Meyers had informed CCS or jail staff that she had an MRI suggesting an abscess, further follow up may have been indicated. But as Ms. Meyers did not present with any outward symptoms of illness or infection to either medical or mental health care staff, and did not inform them of the reason for or result of her MRI, their course of conduct was appropriate. (Id.) On March 19, 2018, Dr. Stoltz supplemented his July 13, 2017 Expert Report after reviewing Dr. Vassallo's and Dr. Dragovic's expert reports, and stated that Dr. Vassallo relied on information that the CCS medical staff never possessed and that based on what the CCS staff, including Nurse Jones and Ms. Brock, did know and observe, the medical care delivered was appropriate and the nursing protocol was properly followed. (Id. at PgID 1954.) Dr. Stoltz noted that Ms. Meyers had many opportunities to express her complaints to both jail and medical staff, in particular at her mental health visit with Ms. Brock on July 3, 2013, when Ms. Meyers appeared normal and well-oriented and conversational. (Id. at PgID 1955.)

         II. LEGAL STANDARD

         Summary judgment is appropriate where the moving party demonstrates that there is no genuine dispute as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed.R.Civ.P. 56(a). “A fact is ‘material' for purposes of a motion for summary judgment where proof of that fact ‘would have [the] effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties.'” Dekarske v. Fed. Exp. Corp., 294 F.R.D. 68, 77 (E.D. Mich. 2013) (quoting Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984)). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). “In deciding a motion for summary judgment, the court must draw all reasonable inferences in favor of the nonmoving party.” Perry v. Jaguar of Troy, 353 F.3d 510, 513 (6th Cir. 2003) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

         At the same time, the non-movant must produce enough evidence to allow a reasonable jury to find in his or her favor by a preponderance of the evidence, Anderson, 477 U.S. at 252, and “[t]he ‘mere possibility' of a factual dispute does not suffice to create a triable case.” Combs v. Int'l Ins. Co., 354 F.3d 568, 576 (6th Cir. 2004) (quoting Gregg v. Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir. 1986)). Instead, “the non-moving party must be able to show sufficient probative evidence [that] would permit a finding in [his] favor on more than mere speculation, conjecture, or fantasy.” Arendale v. City of Memphis, 519 F.3d 587, 601 (6th Cir. 2008) (quoting Lewis v. Philip Morris Inc., 355 F.3d 515, 533 (6th Cir. 2004)). “The test is whether the party bearing the burden of proof has presented a jury question as to each element in the case. The plaintiff must present more than a mere scintilla of the evidence. To support his or her position, he or she must present evidence on which the trier of fact could find for the plaintiff.” Davis v. McCourt, 226 F.3d 506, 511 (6th Cir. 2000) (internal quotation marks and citations omitted). That evidence must be capable of presentation in a form that would be admissible at trial. See Alexander v. CareSource, 576 F.3d 551, 558-59 (6th Cir. 2009).

         III. ANALYSIS

         A. Plaintiff's Eighth Amendment Deliberate Indifference Claim Against the Individual Defendants

         “To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). “‘It is clear that a private entity which contracts with the state to perform a traditional state function such as providing medical services to prison inmates [here CCS] may be sued under § 1983 as one acting ‘under color of state law.'” Carl v. Muskegon County, 763 F.3d 592, 596 (6th Cir. 2014) (quoting Hicks v. Frey, 992 F.2d 1450, 1458 (6th Cir. 1993)). “The constitutional right at issue [here] arises from the Eighth Amendment's prohibition on cruel and unusual punishment because [Meyers] was serving a criminal sentence at the time [s]he died.” Shadrick v. Hopkins County, Ky., 805 F.3d 724, 736 (6th Cir. 2015). The Eighth Amendment “forbids prison officials from ‘unnecessarily and wantonly inflicting pain' on an inmate by acting with ‘deliberate indifference' toward the inmate's serious medical needs.” Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 895 (6th Cir. 2004) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)).

         “An Eighth Amendment claim has two components, one objective and one subjective. “ Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001). The objective component is satisfied if the plaintiff alleges that the medical need at issue is “sufficiently serious.” Id. at 703 (quoting Farmer, 511 U.S. at 834). “[A] medical need is objectively serious if it is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Blackmore, 390 F.3d at 897 (quoting Gaudreault v. Municipality of Salem, 923 F.2d 203, 208 (1st Cir. 1990)) (emphasis in original). Also “[c]ourts have analyzed the seriousness of a deprivation by examining the effect of the delay in treatment.” Taylor v. Franklin County, Ky., 104 Fed.Appx. 531, 538 (6th Cir. 2004) (citing Napier v. Madison County, Ky., 238 F.3d 739, 742 (6th Cir. 2001)). “A medical condition is sufficiently serious to confer constitutional protections where delay in treatment may cause ‘a serious medical injury.'” Kindl v. City of Berkley, 798 F.3d 391, 401 (6th Cir. 2015) (quoting Blackmore, 390 F.3d at 898).

         In Taylor, plaintiff was suffering from an undiagnosed tumor that was pressing on his spine and cutting off blood supply to his spinal cord, resulting in bouts of incontinence and pain in his back. The Sixth Circuit explained that based on plaintiff's expert's testimony as to the seriousness of the tumor and to the effect of its continued growth during plaintiff's incarceration, plaintiff's signs of incontinence and back pain were manifestations of a serious medical condition, whether or not defendants appreciated that seriousness:

To satisfy the objective component, Plaintiff must establish that his medical needs, which included claims of serious back pain, loss of feeling in his feet and legs, and bouts of incontinence, were “sufficiently serious” to warrant the requisite medical attention.
***
Here, Plaintiff was plagued with terminal cancer of the spine. This ailment seriously affected Plaintiff's mobility and control of his bladder, while causing great pain in his spinal column and lower extremities.
***
Given the verified medical testimony of the seriousness of Plaintiff's condition, this Court views Plaintiff's complaints of back pain, loss of mobility and bladder incontinence as serious medical conditions which placed Plaintiff in substantial risk of developing greater health problems when left untreated.

         Taylor v. Franklin County, Ky., 104 Fed.Appx. 531, 538 (6th Cir. 2004).

         Similarly here, Plaintiff has placed into the record verifying expert medical evidence that Plaintiff's alleged symptoms of severe back pain and sweating were manifestations of her underlying very serious medical condition (acute sepsis) that ultimately resulted in her death. While Defendants may or not have appreciated the seriousness of these symptoms and may or may not have consciously chosen to ignore them (the subjective component) Plaintiff has satisfied the objective component. See also North v. Cuyahoga County, 754 Fed.Appx. 380, 387 (6th Cir. 2018) (finding that plaintiff's undiagnosed endocarditis, which plaintiff's expert testified was “a serious and potentially fatal medical issue, ” was an objectively serious medical need satisfying the objective component of the deliberate indifference analysis); Winkler v. Madison County, 893 F.3d 877, 890-91 (6th Cir. 2018) (“There is no question that Hacker's perforated duodenal ulcer, which ultimately caused his death, met this objective component.” (citing Rouster v. County of Saginaw, 749 F.3d 437, 446 (6th Cir. 2014)); Smith v. Campbell County, Ky., No. 16-13, 2019 WL 1338895 (E.D. Ky. March 25, 2019) (finding that plaintiff with an undiagnosed epidural abscess and osteomyelitis of the spine resulting in sepsis and paraplegia satisfied the objective component of the deliberate indifference analysis). Here Plaintiff's expert testified that Ms. Meyers's epidural abscess could have been treated and she could have been saved and she died from the untreated epidural abscess. At this stage we must accept that expert testimony as true. Kindl, 798 F.3d at 402. For purposes of the deliberate indifference analysis, Plaintiff has satisfied the objective component.5

         “To satisfy the subjective component, the plaintiff must allege facts which, if true, would show that the official being sued subjectively perceived facts from which to infer substantial risk to the prisoner, that he did in fact draw the inference, and that he then disregarded that risk.” Comstock, 273 F.3d at 703. “The requirement that the official have subjectively perceived a risk of harm and then disregarded it is meant to prevent the constitutionalization of medical malpractice claims; thus, a plaintiff alleging deliberate indifference must show more than negligence or the misdiagnosis of an ailment.” Comstock, 273 F.3d at 703 (citing Estelle, 429 U.S. at 106, 97 S.Ct. 285; Farmer, 511 U.S. at 835, 114 S.Ct. 1970). See also Johnson v. Karnes, 398 F.3d 868, 875 (6th Cir. 2005) (“a plaintiff alleging deliberate indifference must show more than negligence or the misdiagnosis of an ailment” so that “[w]hen a prison doctor provides treatment, albeit carelessly or inefficaciously, to a prisoner, he has not displayed a deliberate indifference to the prisoner's needs, but merely a degree of incompetence which does not rise to the level of a constitutional violation.”) “Although the [] subjective standard ‘is meant to prevent the constitutionalization of medical malpractice claims,' a plaintiff need not show that the officer acted with the specific intent to cause harm. Phillips v. Roane County, Tenn., 534 F.3d 531, 540 (6th Cir. 2008) (quoting Comstock, 273 F.3d at 703). “Indeed, ‘deliberate indifference to a substantial risk of serious harm to a prisoner is the equivalent of recklessly disregarding that risk.'” Id. (quoting Farmer, 511 U.S. at 836).

         Because officials “do not readily admit this subjective component, [] ‘it [is] permissible for reviewing courts to infer from circumstantial evidence that a prison official had the requisite knowledge.'” Id. (first alteration added). The subjective component can “be established simply by showing that the correctional officer ‘refused to verify underlying facts that he strongly suspected to be true, or declined to confirm inferences of risk that he strongly suspected to exist.'” Richko v. Wayne County, Mich., 819 F.3d 907, 918 (6th Cir. 2016) (quoting Farmer, 511 U.S. at 843 n. 8). See also Curry v. Scott, 249 F.3d 493, 506 (6th Cir. 2001) (observing that “a factfinder may infer actual knowledge through circumstantial evidence, or may conclude a prison official knew of a substantial risk from the very fact that the risk was obvious”) (internal citation and quotation marks omitted). “[A] prison official may ‘not escape liability if the evidence showed that he merely refused to verify underlying facts that he strongly suspected to be true, or declined to confirm inferences of risks he strongly suspected to exist.” Taylor, 104 Fed.Appx. at 539 (quoting Farmer, 511 U.S. at 843 n. 8.) “Expert testimony that speaks to the obviousness of a risk can be used to demonstrate a dispute of material fact regarding whether a prison doctor exhibited conscious disregard for the plaintiff's health.” Smith v. Campbell County, 2019 WL 1338895, at *14 (citing LeMarbe v. Wisneski, 266 F.3d 429, 437-38 (6th Cir. 2001) (finding that where plaintiff presented substantial expert testimony that it would be “obvious to anyone with a medical education” that the presence of five liters of bile in plaintiff's abdomen required immediate surgical attention, a reasonable factfinder could conclude that a doctor who failed to seek that attention was aware of a substantial risk of harm and consciously disregarded that risk by failing to stop the bile leak in a timely manner)).

         A particular defendant's level of knowledge and training also must be ...


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