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Sandusky v. O'Keefe

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

August 8, 2019

THOMAS SANDUSKY, Plaintiff,
v.
SERGEANT JEFFREY O'KEEFE, et al., Defendants.

          OPINION AND ORDER DENYING IN PART AND GRANTING IN PART DEFENDANT OFFICERS' MOTION FOR SUMMARY JUDGMENT [102] AND GRANTING DEFENDANT DR. ALBERS' MOTION FOR SUMMARY JUDGMENT [104]

          Nancy G. Edmunds United States District Judge.

         This case arises from the death of Hal Sandusky (“Sandusky”), who was a detainee at the Detroit Police Department's (“DPD”) Second Precinct jail when he died on June 28, 2013. The personal representative of Sandusky's estate, Plaintiff Thomas Sandusky (Sandusky's son), filed two federal lawsuits that were later consolidated by this Court. Since being consolidated, the parties have stipulated to dismissing a No. of defendants. The defendants who currently remain are ten DPD police officers, Defendants Jeffrey O'Keefe, Brian Ross, Kevin Zarosly, William O'Brien, Yasmin Cooper (Robinson), Shunta Small, Colette Burks-Weathers, David Dittberner, Eric Ewing, and William Trzos (“Defendant Officers”), [1] as well as the emergency room physician who treated Sandusky prior to his detention, Dr. Sarah Albers. Plaintiff brings deliberate indifference claims against all Defendants, gross negligence claims against Defendant Officers, and supervisory liability claims against Defendant Officers O'Keefe and Trzos. The matter is now before the Court on two motions for summary judgment filed by the defendants-the first filed by Defendant Officers (Dkt. 102) and the second filed by Defendant Dr. Albers (Dkt. 104).[2] Plaintiff filed a response to both motions, (dkts. 107, 109), and Defendants filed reply briefs, (dkts. 112, 113.) For the reasons stated below, the Court DENIES Defendant Officers' motion with regard to Defendant Officers Burks-Weathers, Ewing, Cooper (Robinson), Small, and O'Brien and GRANTS it with regard to Defendant Officers O'Keefe, Ross, Zarosly, Dittberner, and Trzos. The Court also GRANTS Defendant Dr. Albers' motion.

         I. Background

         Hal Sandusky was thirty-five years old when he was arrested on June 25, 2013, following a domestic altercation. Hal Sandusky cut his arm and head on a broken window during the altercation. Defendant Officers Ross and Zarosly were dispatched to the location when one of the witnesses called 911. (Dkt. 102-1.) They observed lacerations and blood on Sandusky's arm and head and took him to the Detroit Receiving Hospital (“DRH”) for treatment.

         Plaintiff was treated in the emergency room by Defendant Dr. Albers, who observed two lacerations to the anterior surface of Sandusky's right elbow. (Dkt. 104-2, PgID 1697.) It is undisputed that Dr. Albers examined Sandusky, obtained an x-ray, irrigated and cleaned Sandusky's wounds, sutured the lacerations on his arm, and dressed the wounds. (See Id. at PgID 1698-99.) There is a dispute, however, over the order of these events.

         Dr. Albers testified that after she examined Sandusky and before she sutured his wounds, she obtained a x-ray to rule out the presence of a foreign body in the wounds. (Dkt. 104-11, PgID 1855.) She then reviewed the x-ray, which showed no fracture or dislocation but a “tiny hyperdensity” in the deep area of one of the lacerations, which she indicated could be a tiny foreign body. (Id. at PgID 1856.) She thoroughly irrigated each laceration with saline and probed the wounds in an attempt to locate and remove the possible foreign body, but she did not see any foreign body. (Id. at PgID 1858.) She then placed five sutures over each laceration and washed and dressed the wounds. (Id.; see also dkt. 104-2, PgID 1699.)

         Plaintiff, however, points to Dr. Albers' report, which appears to indicate that she reviewed the x-ray after suturing and dressing the wounds. (See dkt. 104-2, PgID 1698-99.) Plaintiff's emergency medicine expert opines that under the applicable standard of care, Dr. Albers should have removed the foreign body after imaging revealed its presence, ordered and prescribed antibiotics, and arranged for follow-up evaluation of the patient the following day. (See dkt. 107-5.) Dr. Albers testified that she does not prescribe antibiotics unless she thinks the benefits of the medication outweigh the risks, such as when there is an animal bite or a very dirty wound. (Dkt. 104-11, PgID 1849, 1863.) Ultimately, Dr. Albers discharged Sandusky back into the custody of DPD after providing the following instructions both verbally and in writing: follow-up for removal of sutures; return to the ER if not getting better or feeling worse; wash and dry the wound with warm water and soap after twenty-four hours; and call a physician if there is redness, pain, swelling, pus, or if the stitches come out, or if there are any new or bothersome symptoms. (Id. at PgID 1862-63; see also dkt. 104-2, PgID 1700.)

         Officers Ross and Zarosly transported Sandusky to the DPD second precinct jail that evening. They escorted Sandusky into the processing area. They were responsible for handing over his paperwork, including Dr. Albers' discharge instructions to Defendant Officers O'Keefe and Dittberner, although there is a dispute as to whether they did so. Sergeant O'Keefe was the on-duty cellblock supervisor and Officer Dittberner was the intake prison detention officer. Officer Dittberner completed the detainee intake form. (See dkt. 109-7.) On the form, he indicated that Sandusky was in need of medical attention, but he did not complete a separate medical care referral form.[3] Sandusky was booked and admitted to the cellblock at approximately 9:30 pm. He remained there over the next 48 hours.

         There is evidence Sandusky's health deteriorated during his time at the prison. And on the night of June 27, 2013, at approximately 10:30 pm, Sergeant Newkirk was informed that Sandusky was in need of medical attention by inmate McKinney, who heard Sandusky gagging, vomiting, and choking. (Dkt. 109-9, PgID 2200.) Newkirk replied, “he's okay, he's going through withdrawals, ” and walked away. At around 11:00 pm, McKinney once again called for help. Five minutes later, several officers responded, including Officers Newkirk, O'Brien, and Small, and found Sandusky unresponsive in his cell. DPD officers administered CPR. EMS eventually arrived and transported Sandusky to Sinai-Grace Hospital where his arm was observed to show infection with sloughing of the skin and mottling. (Dkt. 102-6.) A blood culture was positive for streptococcus bacteria. His platelet count was within normal limits. Sandusky was pronounced dead on June 28, 2013 at 12:56 a.m.

         On June 29, 2013, Dr. Gupta, an Assistant Wayne County Medical Examiner, performed an autopsy and concluded that Sandusky died of septic shock due to infection of his lacerations. (Dkt. 102-7.) Plaintiff's expert, Dr. Landers, agrees with this conclusion, and has opined that Sandusky was symptomatic and visibly ill during the 24 hours prior to the time he was found unresponsive in his cell. (Dkt. 109-22.) Those symptoms would have included vomiting, gagging, wound draining and bleeding, sweating, shortness of breath, diarrhea, and confusion. (Id. at PgID 2366-67.) Defendant Officers' expert, Dr. Chiodo, on the other hand, has opined that Sandusky died of cardiac arrest caused by an enlarged heart and defective left ventricle. (Dkt. 102-8.) Defendant Officers also state that Oakland County Medical Examiner, Dr. Dragovic, agrees that Sandusky did not die of sepsis and will opine that Sandusky died of cardiac arrest due to a fast-acting flesh-eating bacteria, Neocrotizing Fascitis.[4]

         The Defendant Officers who remain in this case are the officers who were responsible for transferring Sandusky to and booking him in the prison, Officers Ross, Zarosly, and Dittberner, along with the following officers who were responsible for monitoring Sandusky and the other detainees in his cellblock during the time periods set forth below:

June 26, 2013

Sergeant O'Keefe

4 pm - 12 am

Officer Cooper (Robinson)

7 pm - 7 am

June 27, 2013

Lieutenant Trzos

12 am - 8 am

Sergeant Newkirk

8 am - 4 pm

Officer Burks-Weathers

7 am - 7 pm

Officer Ewing

7 am - 7 pm

Sergeant Newkirk

4 pm - 12 am

Officer Cooper (Robinson)

7 pm - 7 am

Officer Small

7 pm - 7 am

Officer O'Brien

7 pm - 7 am

         All officers were responsible for making sure the detainees were safe. (Dkt. 109-26, PgID 2420.) Prison detention officers were responsible for conducting a visual inspection of all the cells every thirty minutes and the supervising officer was responsible for doing so every two hours. (Dkt. 109-29, PgID 2466-67.)

         II. Legal Standard

         It is well established that summary judgment under Federal Rule of Civil Procedure 56 is proper when “‘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.'” United States S.E.C. v. Sierra Brokerage Servs., Inc., 712 F.3d 321, 326-27 (6th Cir. 2013) (quoting Fed.R.Civ.P. 56(a)). When reviewing the record, “‘the court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor.'” Id. at 327 (quoting Tysinger v. Police Dep't of Zanesville, 463 F.3d 569, 572 (6th Cir. 2006)). Furthermore, the “‘substantive law will identify which facts are material,' and ‘summary judgment will not lie if the dispute about a material fact is genuine, that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'” Id. at 327 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). When considering the material facts on the record, a court must bear in mind that “[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252.

         III. ...


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