Herriges v. Cnty. of Macomb

CAROL HERRIGES, as Personal Representativeof the ESTATE OF DIETER HERRIGES-LOVE, deceased, Plaintiff, v. COUNTY OF MACOMB, AARON HORNE, GARY BABICH,CORRECT CARE SOLUTIONS, LLC, DR. LAWRENCE SHERMAN,and JAMIE KNEISLER, Defendants.

Case Number 19-12193

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

June 29, 2020

Honorable David M. Lawson

OPINION AND ORDER GRANTING MACOMB COUNTY DEFENDANTS' MOTION FOR PARTIAL DISMISSAL AND GRANTING IN PART AND DENYING IN PART CORRECT CARE SOLUTIONS'S MOTION TO DISMISS

On July 26, 2017, Dieter Herriges-Love joined the grizzly ranks of Macomb County, Michigan jail inmates who took their own lives while under the less-than-watchful eye of their jailers. In the previous sixteen years, twenty-one souls preceded him. His estate has sued the County and medical providers for violating his federal constitutional rights. The plaintiff has alleged a well-recognized cause of action under the Eighth and Fourteenth Amendments based on the defendants' deliberate indifference to Herriges-Love's serious medical needs. But the plaintiff also alleged an alternate legal theory in Count II of the amended complaint that applies a more relaxed test to determine deliberate indifference. The defendants have moved to dismiss various counts of the amended complaint, including Count II. Although the case will be allowed to move forward against all the defendants, Count II does not find support in current governing circuit law. The Court will dismiss Count II and deny the motions in all other respects.

I.

Because the motions challenge the viability of the amended complaint, the facts will be taken from that pleading. It alleges that Herriges-Love had a history of mental illness, depression, and alcohol and drug abuse. During a previous stay at the Macomb County Jail in September 2016, he made it known to his jailers that he was depressed and wanted to kill himself. Clinton Township police officers took him to McLaren Hospital, filed a petition for hospitalization, and expressed concern that "as a result of [his] mental illness, [Herriges-Love] can be reasonably expected within the near future to intentionally or unintentionally seriously physically injure [him]self or others . . . ."

The statements in the amended complaint are unclear about what happened next or when he was released, but the plaintiff alleges that Herriges-Love's depression worsened; he lost his job, crashed and destroyed his car, abused drugs and alcohol, and was arrested again on October 20, 2016. At intake, an officer documented that Herriges-Love was taking Suboxone, which is used to treat narcotics addiction, and noted that Herriges-Love recently received treatment at a mental institution for three weeks. Officers then transported Herriges-Love to the Macomb County Jail.

At the jail, an officer partially completed a jail detention card, but he did not answer whether Herriges-Love "had any known medical problems," or if he "verbalized any thoughts of suicide." The following day, on October 21, 2016, a Correct Care Solutions employee indicated on a screening form that Herriges-Love did not pose a suicide risk. The day after that, Herriges-Love told personnel that he did not feel safe in the general population and requested "protective custody." Herriges-Love also disclosed that he was taking medication prescribed by his treating psychiatrist for mental health issues, had a substance abuse problem, and was prescribed Suboxoneto help battle his addiction. Officers placed Herriges-Love in a "high-medium" security class. Herriges-Love eventually was released from custody on October 28, 2016.

Herriges-Love had another run-in with the law several months later: he was arrested in Roseville, Michigan on July 10, 2017, and was charged with possession of a controlled substance. Officers took him again to the Macomb County Jail.

At this point, it is relevant to note that the plaintiff alleges that from 2001 through July 2017, dozens of pretrial detainees either attempted or completed suicide, many of which by slipping their bedsheets through the holes in their bunk beds and hanging themselves. During that time, there were 21 suicides and at least seven unsuccessful attempts: five in 2001, two in 2010, five in 2011, and six in 2014. And in 2017, ten inmates attempted suicide by hanging from their beds. Three succeeded.

The plaintiff alleges that at the July 10 admission, the "[d]efendants again failed to require the arresting agency to complete or even partially complete a Jail Detention Card [and] no inquiry was made as to whether [Herriges-Love] 'had any known medical problems' or 'verbalized thoughts of suicide.'" Additionally, on an "initial classification/temporary cell assignment" questionnaire, someone responded "no" to the question of whether Herriges-Love had "ever been in a mental institution or had psychiatric care," despite previous documentation that he was taking prescribed mental health medication.

Macomb County jail inmates' medical and mental health needs were the responsibility of defendant Correct Care Solutions, LLC. That vendor entered into a contract that also required it to formulate jail policy and protocol at the Macomb County Jail "during the period in question." Defendant Lawrence M. Sherman, M.D., an employee of Correct Care, was the Chief Medical Director of the Macomb County Jail and was responsible for providing care for inmates andtraining clinical staff. Defendant Jamie Kneisler, R.N., also worked for Correct Care and performed suicide assessments at the jail for inmates, including Herriges-Love.

The plaintiff alleges that Correct Care and its employees learned during the July 10 confinement, but did not share with detention personnel, that Herriges-Love expressed feelings of hopelessness. On July 11, 2017, the day after Herriges-Love's arrest, "[d]efendants [Correct Care,] Sherman, and/or Kneisler documented that [Herriges-Love] abused Xanax and Fentanyl" and "noted that [Herriges-Love] had a history of severe withdrawals after he stopped using drugs and alcohol." But "[n]either Sherman nor Kneisler communicated this to the Macomb County detention personnel and [Herriges-Love] was not placed on suicide watch." And on July 14, 2017, Correct Care documented "that [Herriges-Love] expressed feelings of hopelessness, helplessness, and . . . that there was nothing to look forward to" while a Correct Care representative completed a receiving screening form for Herriges-Love. If an inmate expresses feelings of hopelessness, the screening form indicates that employees must notify a shift commander, refer the inmate for a mental health evaluation, and place the inmate on suicide watch. However, after Herriges-Love reported his feelings of hopelessness, no one informed a shift commander, no one referred him for a mental health evaluation, and no one placed him on suicide watch.

Herriges-Love's condition worsened in jail. From July 14 through July 15, 2017, Correct Care documented that he had vomiting spells, paroxysmal (sudden and intense) sweating, hallucinations, headaches, and severe anxiety. No one informed detention personnel. And from July 11 through July 15, 2017, Correct Care staff prescribed Herriges-Love a variety of medications, including Chlordiazepoxide (used to relieve fear, anxiety, and combat withdrawal symptoms). But Herriges-Love was cut off from medication on July 16, 2017, which allegedly caused him to suffer from withdrawal. The day after his round of medication ended, Herriges-Love submitted a request for medical attention and for Imodium (abdominal discomfort medication). A nurse responded to the request and denied it — eight days later. After ending his round of medications, the Correct Care staff did not follow up with Herriges-Love. According to the plaintiff, that was a consistent company practice, as Correct Care lacked a policy requiring its medical providers to check in with patients after they are approved for general population housing.

Throughout his stay at the Macomb County Jail, Herriges-Love was housed among the general population "with little to no supervision." Aside from "perfunctory" welfare checks by detention personnel, the plaintiff alleges, inmates were relatively unsupervised and were allowed to "stick paper to their windows to block the view into their cells." "This practice permitted inmates . . . to use the restroom in private, or engage in illicit behavior." "From July 21 through July 26, 2017, numerous individuals housed with [Herriges-Love] heard him speak of suicide, observed that he appeared depressed and unkempt, knew he was experiencing withdrawals, and heard Herriges-Love state that he tried to speak with a mental health professional."

In their motion brief, the Correct Care defendants tell a different story, citing parts of Herriges-Love's medical records from the Macomb County jail, which they attached as exhibits. They contend that those records should be considered part of the pleadings because the plaintiff referred to those records and incorporated them by reference in the amended complaint. It is true that the plaintiff made passing references to the jail records, mainly the screening forms. But the records are referenced in only five (paragraphs 49 through 52, 54, and 104) of the 210 paragraphs in the amended complaint, and nowhere are they "incorporated by reference."

In any event, the Correct Care defendants contend that during the initial screening evaluation, Herriges-Love did not respond affirmatively to any of the questions that screened for suicidal tendencies. They say that they referred Herriges-Love for drug and alcohol withdrawalprotocols and recommended that he enter the medical detoxification unit due to his admitted drug and alcohol use. They also dispute that Herriges-Love expressed feelings of hopelessness. They contend that the plaintiff's allegation is "an apparent reference to [Herriges-Love's] 'CIWA-AR SCORE...