REVEREND WILLIE B. YOUNG, as Personal Representative of the ESTATE OF ROSCOE YOUNG, Decedent, Plaintiff-Appellee, v. BILL MARTIN, et al., Defendant-Appellant.

No. 02-1036

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

51 Fed. Appx. 509; 2002 U.S. App.

October 21, 2002, Filed


NOTICE: [**1] NOT RECOMMENDED FOR FULL-TEXT PUBLICATION. SIXTH CIRCUIT RULE 28(g) LIMITS CITATION TO SPECIFIC SITUATIONS. PLEASE SEE RULE 28(g) BEFORE CITING IN A PROCEEDING IN A COURT IN THE SIXTH CIRCUIT. IF CITED, A COPY MUST BE SERVED ON OTHER PARTIES AND THE COURT. THIS NOTICE IS TO BE PROMINENTLY DISPLAYED IF THIS DECISION IS REPRODUCED.

PRIOR HISTORY: ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN. 01-72569. D.P. Hood. 10-26-01. Young v. Martin, 2002 U.S. Dist. LEXIS 10378 (E.D. Mich., May 23, 2002)

DISPOSITION: Affirmed.



COUNSEL: For ROSCOE YOUNG, Plaintiff-Appellee: Lee A. Stevens, Feikens, Stevens, Kennedy & Galbraith, Detroit, MI.

For BILL MARTIN, DAVID JAMROG, Defendants-Appellants: Patrick J. Wright, Office of the Attorney General, Mark W. Matus, Michigan Department of Attorney General, Lansing, MI.

JUDGES: BEFORE: KRUPANSKY and CLAY, Circuit Judges; GWIN, District Judge *

* The Honorable James S. Gwin, United States District Judge for the Northern District of Ohio, sitting by designation.

OPINIONBY: CLAY

OPINION:
[*510] CLAY, Circuit Judge. Defendant Bill Martin, former director of the Michigan Department of Corrections ("MDOC"), appeals the district court's (1) order denying his motion for summary judgment, and (2) order denying his motion [**2] for rehearing and reconsideration. n1 In his summary judgment motion, Defendant Martin sought qualified immunity as to claims brought under 42 U.S.C. § 1983 by Plaintiff, Reverend Willie B. Young, as personal representative of the Estate of Roscoe Young ("decedent"). Plaintiff, decedent's father, alleges that Defendant Martin implemented a policy that denied necessary and life-saving medical care to prisoners such as decedent. Defendant Martin contends that the district court erred in denying his motion for summary judgment based on qualified immunity. For the reasons that follow, we AFFIRM the orders of the district court.

n1 David Jamrog and two John Does were also named as Defendants in this case, but claims on their behalf are not at issue in this appeal.

BACKGROUND
Procedural History
Plaintiff filed the instant action on July 9, 2001 pursuant to 42 U.S.C. § 1983. n2 Plaintiff alleged in his complaint that Defendant Martin, as well as David [**3] Jamrog, warden of the Adrian Temporary Correctional Facility, and two John Does (collectively "Defendants"), violated decedent's Eighth Amendment rights against cruel and unusual punishment by demonstrating indifference to decedent's serious medical needs. The complaint requested compensatory, exemplary, and punitive damages. Defendants subsequently moved for summary judgment, in part on the basis that Defendant Martin was entitled to qualified immunity. Defendants also moved to stay discovery pending a ruling on qualified immunity. Plaintiffs opposed both motions.

n2 The statute provides in pertinent part:


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


42 U.S.C. § 1983.

[**4]
The district court entered a memorandum opinion and order on October 25, 2001, denying in part and granting in part Defendants' motion for summary judgment. It dismissed claims against Defendant Jamrog, who undisputedly was not warden at the relevant time. However, because the complaint alleges that Defendant Martin "adopted a policy regarding the authorization request procedure utilized by the correctional medical services department which discouraged the administration of necessary life saving health care to inmates," the district court allowed the Eighth Amendment claim against Defendant Martin to proceed, despite the complaint's lack of allegations of Defendant Martin's personal involvement. (J.A. at 263.) In so doing, the court ruled that the complaint stated a policy claim against Martin in his supervisory capacity. The court further granted limited discovery as to "what the policy at issue is, whether said policy violated [decedent's] constitutional rights under the Eighth Amendment, and whether Defendant Martin had knowledge that the policy had a substantial risk of serious harm." (J.A. at 266.) The district court further ordered that discovery be stayed pending any appeal. [**5] Defendant Martin filed a motion for reconsideration, [*511] which the district court denied. Thereafter, this timely appeal followed.
Facts
According to the complaint, decedent was sentenced to an eight-to-fifteen year-period of imprisonment, and was incarcerated under the jurisdiction of the MDOC at the Adrian Temporary Facility ("AFT") in Adrian, Michigan, from March 1999 to November 1999. On numerous occasions decedent, who was diabetic and suffered from other maladies, went to the medical clinic at the ATF complaining of nose bleeds, dizziness, elevated blood sugar, and ulcerations on his feet and legs. Decedent's untreated ulcerations led to a staph infection, which also was not properly treated. Plaintiff also contends that decedent was denied proper administration and dosage of his insulin required to control his diabetes.
In his affidavit, Plaintiff contends that decedent contacted him once a week to complain about not getting his medications. Plaintiff states that he also informed officials at the MDOC and spoke with the warden about his son not getting the proper medical care for his condition. Despite these efforts, Plaintiff avers that decedent still called to complain [**6] about his lack of medical care and the withholding of insulin.
Decedent's medical condition worsened, and he was transferred to Dwayne Waters Hospital, a Department of Corrections facility, where he suffered acute renal failure and sepsis. An emergency nephrology consult was requested on October 14, 1999, which John Doe # 2, director of the Correctional Medical Services, denied on October 18, 1999. Defendant Martin and John Doe # 2 later approved the consult but scheduled an appointment for several weeks later, on November 12, 1999.
With his condition worsening, decedent was admitted to Foote Hospital in Jackson, Michigan on October 21, 1999, with multiple organ system failure and septic shock. During decedent's stay there, he underwent surgery, eventually lapsed into a coma and died on November 10, 1999, after suffering a stroke.
Plaintiff alleges that Defendant Martin adopted Policy Directive 03.04.100, which established and maintains a chronic disease data base. The policy provides that chronic care clinics will be established so that patients with chronic diseases can receive continuous health care treatment. Plaintiff contends that Defendant Martin implemented this policy to [**7] minimize the expenses of medical care provided to prisoners, knowing that there was a substantial risk that its implementation would cause serious harm to inmates. He points to Policy Directive 03.04.100, which provides in pertinent part:
CHRONIC CARE CLINICS


FF. Chronic care clinics shall be established to ensure that prisoners with specified chronic diseases or disorders receive continuous health care services. Prisoners who are seen in chronic care clinics shall be identified on the Chronic Disease Index (CDI).

GG The CDI is a computerized health care tracking system which identifies prisoners with chronic disease. The CDI shall be used with guidelines developed by the Chief Medical Officer and the Medical Advisory Committee to provide minimum standards of care. A prisoner shall be placed on the CDI based upon chronic disease diagnosis.


(J.A. at 248.) (emphasis added). Plaintiff alleges that this policy resulted in decedent's death.
[*512] DISCUSSION
A denial of qualified immunity as to a § 1983 action is reviewed de novo. Klein v. Long, 275 F.3d 544, 550 (6th Cir. 2001). However, "[a] defendant who is denied qualified immunity [**8] may file an interlocutory appeal with this Court only if that appeal involves the abstract or pure legal issue of whether the facts alleged by the plaintiff constitute a violation of clearly established law." Shehee v. Luttrell, 199 F.3d 295, 299 (6th Cir. 1999) (citation omitted). "Thus, in order for an interlocutory appeal to be appropriate, a defendant seeking qualified immunity must be willing to concede to the facts as alleged by the plaintiff and discuss only the legal issues raised by the case." Id. Therefore, for the purposes of this appeal, we accept Plaintiff's allegations as true and proceed to examine the legal issues.
Defendant Martin contends that he is entitled to summary judgment on the basis of qualified immunity because (1) Plaintiff's Eighth Amendment deliberate indifference claim alleges no personal involvement in decedent's care or death on Defendant's part, and (2) to the extent that Plaintiff asserts a policy and custom claim, such claims are limited to municipalities, inasmuch as no clearly established law provides that a policy or custom claim may be asserted against a state official acting in his individual capacity.
Plaintiff counters [**9] that fact questions exist which preclude a grant of summary judgment for Defendant Martin on the ground of qualified immunity. Plaintiff claims that he is entitled to discovery on his claim that Defendant Martin adopted and/ or oversaw a policy that essentially discouraged the administration of necessary life-saving health care to inmates. Citing Taylor v. Michigan Dep't of Corrs., 69 F.3d 76 (6th Cir. 1995), Plaintiff further claims that our Circuit's precedent has held a state official liable for implementing or overseeing an unconstitutional policy, even without specific knowledge that the policy will cause harm to a particular plaintiff. We agree that Plaintiff, at this stage, should be allowed to proceed with his claim.
1. Personal Capacity or Official Capacity Suit
As an initial matter, Defendant Martin points out that Plaintiff's complaint does not indicate whether he is being sued in his official or personal capacity. This is relevant because the Eleventh Amendment does not bar the action where a state official is sued in a personal capacity, Hardin v. Straub, 954 F.2d 1193, 1198 (6th Cir. 1992). Moreover, a defendant's defense of qualified [**10] immunity only applies to bar a claim in a personal capacity suit. See Moore v. City of Harriman, 272 F.3d 769, 772 n.1 (6th Cir. 2001) (en banc).
We believe that Plaintiff attempts to hold Defendant Martin personally liable for decedent's death. Although the complaint does not specify whether it is attempting to hold Defendant personally liable, we have adopted a "course of proceedings" test to determine whether a § 1983 defendant has received notice that a plaintiff intends to hold the defendant personally liable for a constitutional violation. See Moore, 272 F.3d at 772. This "test considers such factors as the nature of the plaintiff's claims, requests for compensatory or punitive damages, and the nature of any defenses raised in response to the complaint ...." Id. at 772 n.1. Here, Plaintiff sought money damages in his complaint. Because state officials cannot be sued for money damages in their official capacities, Lapides v. Bd. of Regents of Univ. Sys. of Georgia, 535 U.S. 613, 152 L. Ed. 2d 806, 122 S. Ct. 1640, 1643 (2002), the request for money [*513] damages indicates a personal capacity suit. Therefore, we believe that Defendant [**11] Martin clearly was on notice that Plaintiff intended to maintain a personal capacity suit against him.
2. Qualified Immunity
Under the doctrine of qualified immunity, "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982); see also Comstock v. McCrary, 273 F.3d 693, 701 (6th Cir. 2001).
In determining the qualified immunity issue, we first must consider the threshold question of whether "the facts alleged show the officer's conduct violated a constitutional right." Saucier v. Katz, 533 U.S. 194, 201, 150 L. Ed. 2d 272, 121 S. Ct. 2151 (2001) (citing Siegert v. Gilley, 500 U.S. 226, 232, 114 L. Ed. 2d 277, 111 S. Ct. 1789 (1991)). Second, we must determine whether the rights at issue have been "clearly established" not just in an abstract sense, but in a particularized sense. Cope v. Heltsley, 128 F.3d 452, 458 (6th Cir. 1997). [**12] "If the right at issue was clearly established at the time the governmental actor committed the violation in question, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct." Harlow, 457 U.S. at 818-19. Plaintiff bears the burden to allege and prove that the defendant violated a clearly established right. Spurlock v. Satterfield, 167 F.3d 995, 1005 (6th Cir. 1999) (citing Adams v. Metiva, 31 F.3d 375, 386 (6th Cir. 1994)). To determine whether a right is clearly established, we have instructed district courts to look at binding precedent from the United States Supreme Court, the Sixth Circuit, or its own court. Cope, 128 F.3d at 459 n.4.
Further, "in examining a claim for qualified immunity, we must balance the need for public officials to be free from the constant fear of lawsuits brought while performing their official duties, with the recognition that 'in situations of abuse of office, an action for damages may offer the only realistic avenue for vindication of constitutional guarantees.'" Spurlock, 167 F.3d at 1005 (citing [**13] Harlow, 457 U.S. at 814)).
The Eighth Amendment imposes a duty on officials to provide "humane conditions of confinement," including insuring, among other things, that prisoners receive adequate clothing, food and medical care. Farmer v. Brennan, 511 U.S. 825, 832, 128 L. Ed. 2d 811, 114 S. Ct. 1970 (1994). In order to find an Eighth Amendment violation, two conditions must be met: (1) the alleged deprivation must be objectively sufficiently serious, and (2) the prison official must have been deliberately indifferent, which encompasses the mens rea component of the claim. Id. at 834. Specifically, the prison official "must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. at 837.
In a § 1983 action, liability cannot be premised on the doctrine of respondeat superior. Taylor, 69 F.3d at 80-81 (6th Cir. 1995). Thus, a "mere failure to act" or "simple negligence" is insufficient. Bass v. Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999). A plaintiff must show the supervisor either (1) [**14] personally engaged in the alleged constitutional violation or (2) encouraged or condoned the alleged violation of the offending subordinates. Id.; see also Comstock, 273 F.3d at 712-13.
[*514] Here, Plaintiff claims that Defendant Martin knowingly implemented a policy of minimizing medical care and withholding necessary care which caused Plaintiff's early demise. Therefore, Plaintiff must show that Defendant Martin either participated in the offending conduct or "at least implicitly authorized, approved, or knowingly acquiesced" in the conduct of his subordinates. Comstock, 273 F.3d at 713.
Plaintiff's complaint is devoid of any allegation of personal involvement by Defendant in the actual delivery of health care to decedent. Likewise, Defendant Martin submitted an affidavit, stating that he played no role in the day-to-day operation of the department's health service areas, and had no actual knowledge of the events described relative to Plaintiff's claims. However, the complaint does allege that Defendant Martin adopted a policy regarding the authorization request procedure used by the correctional medical services department which discouraged the administration [**15] of necessary life-saving health care to inmates. On this basis we believe that Plaintiff should proceed.
Plaintiff acknowledges his burden of showing, pursuant to Farmer, 511 U.S. at 837, that Defendant Martin was aware of facts from which an inference could be drawn that his conduct created a substantial risk of serious harm to decedent and that Defendant Martin drew the inference. Plaintiff points to the implementation of Policy Directive 03.04.100 as evidence that Defendant Martin was aware that prisoners such as decedent were exposed to excessive risks of harm to their health. Plaintiff then claims that Defendant Martin disregarded the excessive risk by implementing the policy which requires that prisoners receive minimal care, limits referrals, and charges prisoners for the costs of their own health care.
Plaintiff relies on two cases, Hill v. Marshall, 962 F.2d 1209 (6th Cir. 1992), and Taylor, 69 F.3d 76, for support. In Hill, a prisoner sued the former deputy superintendent of treatment at a correctional facility, after the plaintiff complained that his medication was confiscated and that he was repeatedly denied medication. [**16] 962 F.2d at 1211. In holding that the official could be held liable in his supervisory capacity, we noted that the plaintiff did allege that defendant personally ignored the plaintiff's complaint that he was not receiving his medication, and that the defendant was charged with "abandoning the specific duties of his position ...." Id. at 1213. In contrast, Plaintiff here attempts to hold Defendant Martin liable for decedent's death, but fails to show at all that he in any way was personally involved with decedent's care. While it is true, as Plaintiff contends that a prison official may be held personally liable for actions he took in the course of his office, this does not mean that Plaintiff may prevail absent allegations or proof of personal involvement or implicit condonation of subordinates' actions. Therefore, we do not find this case dispositive of the issue.
However, we do believe that Taylor supports Plaintiff's position. In Taylor, a plaintiff sued a warden of a penal camp, where the prisoner had been raped. 69 F.3d at 77. The prisoner contended, among other things, that the warden knew about the risk of sexual assault [**17] at the camp but failed to implement a policy to identify and screen out transferees to the camp, such as the plaintiff, who would not be safe at the camp. We held that the plaintiff had submitted sufficient evidence to create a triable issue of fact as to "whether Warden Foltz knew that conditions [at the camp] posed a substantial risk of serious harm to prisoners like plaintiff" and "whether in the face of this knowledge he acted with deliberate indifference--that [*515] is, disregarded a risk of harm of which he was aware--by failing to adopt reasonable policies to protect inmates like Taylor." Id. Warden Foltz contended that he could not be held personally liable for the plaintiff's rape because he had no personal involvement in the decision to transfer him to the camp but had delegated that task to his subordinates. Id. at 78-79. We disagreed, finding that Foltz was directly responsible for approving transfers and adopting reasonable transfer procedures; he also could delegate the authority to sign his name on transfers, a duty he delegated to deputy wardens. Id. at 80, 81. We noted that Foltz's own deposition testimony revealed that his deputy [**18] wardens were redelegating the authority over transfers to lower level staff without any explicit authorization to do so. Id. at 80. Further, Foltz was not sure of the procedures for approving transfers and had not reviewed procedures to determine whether his authority was being abused. Id. We found that, similar to Hill, a jury could find that Foltz had a job to do and did not do it. Id. at 81.
Although Plaintiff does not allege that Defendant Martin was personally involved with his actual care, he does contend that Defendant Martin implemented a policy which only granted minimal care to inmates with chronic illnesses. As in Taylor, it does not matter that Defendant Martin did not know of the substantial risk of harm to Plaintiff in particular; rather, the inquiry is whether he was aware that his conduct would result in a substantial risk of harm to a particular class of persons. Therefore, in accordance with our precedent, we hold that qualified immunity is not warranted here. If Plaintiff can prove that Defendant, who was responsible for implementing policy for the MDOC, implemented a policy that set forth only minimal standards of health [**19] care for inmates with chronic or long-term serious illnesses knowing that in doing so he was creating a substantial risk of harm to inmates, then this would tend to show that Defendant Martin at least implicitly approved unconstitutional conduct of his subordinates, who provided the actual health care. Id.
We note that Plaintiff will have to come forward with proof to support his claim, and definitive proof thus far has not been forthcoming. For instance, Plaintiff points to deposition testimony of decedent's sister in which she contends that decedent told her in phone conversations before his death that unless decedent had his own money to pay for insulin, such insulin would be withheld from him by his medical caretakers at the prison facility. According to decedent's sister, when decedent's family sent him money, that money was used to buy the insulin, and when the money ran out, the insulin was unavailable. Plaintiff attributes this to the policy Defendant Martin implemented, but Plaintiff fails to point out where the policy requires an inmate to pay for his own medication. He merely states that the policy so required. Further, although the policy does appear to provide for [**20] "minimum standards of care" for prisoners with chronic diseases, there is no indication as to what this means. However, in light of the dearth of discovery conducted thus far, we recognize that more supporting evidence may be forthcoming.
Therefore, we believe the denial of qualified immunity was proper, and we will allow Plaintiff to proceed with his claim.
CONCLUSION
For the foregoing reasons, we AFFIRM the orders of the district court.

REVEREND WILLIE B. YOUNG, as Personal Representative of the ESTATE OF ROSCOE YOUNG, decedent, Plaintiff, v. BILL MARTIN, DAVID JAMROG, JOHN DOE # 1, and JOHN DOE # 2, Defendants.



Case No. 01-CV-72569-DT



UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION



172 F. Supp. 2d 919; 2001 U.S. Dist. LEXIS 19830



October 24, 2001, Decided

October 25, 2001, Filed







DISPOSITION: [**1] Defendants' Motion to Stay Discovery (Docket No. 9, filed August 22, 2001) GRANTED IN PART and DENIED IN PART. Defendants' Motion for Summary Judgment (Docket No. 10, filed August 22, 2001) GRANTED IN PART and DENIED IN PART. Defendant Jamrog DISMISSED with prejudice.









COUNSEL: For WILLIE B. YOUNG, plaintiff: Lee A. Stevens, Barbara A. Roulo, Feikens, Stevens, Detroit, MI.


For BILL MARTIN, DAVID JAMROG, defendants: Patrick J. Wright, Michigan Department of Attorney General, Lansing, MI.



JUDGES: DENISE PAGE HOOD, United States District Judge.



OPINIONBY: DENISE PAGE HOOD



OPINION:

[*921] MEMORANDUM OPINION AND ORDER


I. INTRODUCTION/FACTS

Plaintiff, the Reverend Willie B. Young, is the personal representative of the decedent Roscoe Young, an inmate with the Michigan Department of Corrections ("MDOC"). On July 9, 2001, Plaintiff filed the instant suit against Defendants Bill Martin, David Jamrog, John Doe # 1 and John Doe # 2. Defendant Bill Martin is the Director of the MDOC. David Jamrog is the current warden at the Parr Highway Correctional Facility in Adrian, Michigan, formerly known as the Adrian Temporary Facility ("ATF"). Plaintiff's Complaint currently names John Doe # 1 as the unidentified [**2] Medical Director of the Adrian Temporary Correctional Facility and John Doe # 2 as the unidentified Director of the Department of Correctional Medical Services. It is noted that in Defendants' motion, the MDOC records indicate that the decedent was housed at the Gus Harrison Correctional Facility ("ARF") and not at the facility formerly known as the Adrian Temporary Facility.

The decedent was incarcerated and housed, according to Plaintiff's Complaint, at the Adrian Temporary Facility (Defendants claim Mr. Young was housed at Gus Harrison Correctional Facility, known as ARF) from March 1999 until his death on November 10, 1999. Mr. Young suffered from diabetes and other physical ailments. Plaintiff claims that Mr. Young's medical condition was made known to the personnel at ATF. Mr. Young developed a staph infection as early as June 1999 related to various ulcerations on his feet and legs. Plaintiff claims Mr. Young was routinely deprived of the proper administration and dosage of his insulin required for control of his diabetes. Mr. Young was eventually transferred to Dwayne Waters Hospital [*922] where he suffered acute renal failure and sepsis. On October 14, 1999, an urgent nephrology [**3] consult was requested but was denied by Defendant John Doe # 2, Director of Correctional Medical Services, on October 18, 1999. The request was eventually approved and scheduled for November 12, 1999. Plaintiff claims the delay in the authorization deprived Mr. Young of his constitutional rights to be free of cruel or unusual punishment. On October 21, 1999, Mr. Young was transferred to the Foote Memorial Hospital and underwent various surgical procedures. Mr. Young died from a debilitating stroke on November 10, 1999 at age 47. (Plaintiff's Complaint, PP 9-25)

Plaintiff asserts one count of a violation of 42 U.S.C. § 1983 in the Complaint. Plaintiff claims that Defendants denied Plaintiff's decedent medical care and that they were deliberately indifferent to Mr. Young's right to be free of cruel and unusual punishment. Defendants' failure to authorize the necessary and appropriate life saving treatment caused Mr. Young's premature demise. Plaintiff claims that these Defendants violated the Eighth Amendment prohibition against cruel or unusual punishment to and in the execution of official, or unofficial governmental custom, usage, decision or policy. (Complaint, [**4] P 31)

Discovery has not been held in this matter. Defendants seek a stay in discovery pending this Court's ruling on the qualified immunity issues pertaining to both named Defendants--Bill Martin and David Jamrog.


II. MOTION TO STAY DISCOVERY

Defendants Martin and Jamrog claim they are entitled to a stay of discovery pending the Court's ruling on their motion for summary judgment based on qualified immunity, citing Spurlock v. Satterfield, 167 F.3d 995, 1005 (6th Cir. 1999)(qualified immunity is a defense that protects public officials not only from liability, but also from the burdens of trial and discovery). In response, Plaintiff claims that fundamental fairness requires that discovery be allowed, citing Gibbs v. Hopkins, 10 F.3d 373 (6th Cir. 1993).

When a plaintiff files a complaint against a public official, the trial court "must exercise its discretion so that officials are not subjected to unnecessary and burdensome discovery or trial proceedings." Crawford v. Britton, 523 U.S. 574, 118 S. Ct. 1584, 1596-97, 140 L. Ed. 2d 759 (1998). The district court should resolve any immunity defense "before permitting [**5] discovery." Id. Based on the Sixth Circuit case cited by Defendants and the Supreme Court case cited above, the court should first resolve the immunity defense before subjecting the public official to unnecessary and burdensome discovery or trial proceedings. The case cited by Plaintiff, Gibbs, does not address the issue where the public official raises an immunity defense at the outset of the litigation process. Defendants Martin and Jamrog are entitled to have the immunity issue resolved at this juncture prior to permitting discovery. The Court below addresses the immunity issue and pursuant to the reasons set forth below, limited discovery will be permitted.


III. MOTION FOR SUMMARY JUDGMENT

A. Personal Involvement

The Court notes that Defendants Martin and Jamrog are making two arguments in this motion. The first is based on lack of personal involvement and the second is based on qualified immunity. See, Defendants' Brief, pp. 1-2.

Defendants Martin and Jamrog claim they have no personal involvement in the [*923] alleged deliberate indifference that is subject of this action. Defendant Martin submitted an affidavit indicating that he is the Director of the [**6] MDOC but has no personal knowledge of the events at issue involving Mr. Young. (Martin Aff., P 7) While he is the chief administrative officer of the MDOC, he has no role in the day to day operation of the Department's health service areas nor does he direct, provide or oversee the actual care provided to individual prisoners. (Martin Aff., P 6)

Defendant Jamrog submitted an affidavit stating that he is the Warden at the Adrian Correctional Facilities and has held this position since November 2000. (Jamrog Aff, P 1) Defendant Jamrog claims he was not employed at the facility during any part of 1999 and did not assume the position of Warden at the Adrian Correctional Facilities until November 2000. (Jamrog Aff, P 3)

In response, Plaintiff does not address Defendant Jamrog's claim that he had not been employed by the facility until November 2000, after the death of the decedent. If in fact Defendant Jamrog was not employed by either the Adrian Temporary Facility, now known as the Parr Highway Correctional Facility, nor the Gus Harrison Correctional Facility (ARF), there can be no claim against Defendant Jamrog since he was not personally involved nor was in a supervisory capacity at [**7] the time of Plaintiff's death. Defendant Jamrog is dismissed because Plaintiff has failed to state a claim against Defendant Jamrog because Plaintiff has not shown Defendant Jamrog was personally involved in the matter.

As to Defendant Martin, Plaintiff responds claiming that he is liable as the chief administrator of the MDOC because Defendant Martin adopted a policy which denied necessary referrals and that such a policy exhibits deliberate indifference to Plaintiff's medical condition.

Taking Plaintiff's Complaint as true, since no discovery has been taken in this matter, and, viewing the light most favorable to the non-moving party, the Complaint does state a policy claim against Defendant Martin in his supervisory capacity. See P 31 of the Complaint. In order for a municipality or a supervisor to be liable under section 1983 there must be some personal involvement or evidence that "execution of [the] government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury." Monell v. Department of Social Services, 436 U.S. 658, 694, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). [**8] Generally, the doctrine of respondeat superior has no application in a § 1983 claim absent an allegation that the defendants were following the government's policies or customs. Dunn v. Tennessee, 697 F.2d 121, 128 (6th Cir. 1982). Although Plaintiff's Complaint is void of any personal involvement by Defendant Martin in this case, the Complaint, as noted above, has alleged that Defendant Martin has adopted a policy regarding the authorization request procedure utilized by the correctional medical services department which discouraged the administration of necessary life saving health care to inmates. Discovery is required to develop this theory for the reasons set forth below. Defendant Martin's motion for summary judgment based on lack of personal involvement is denied based on his supervisory authority pursuant to Monell.

B. Qualified Immunity

Alternatively, Defendants Martin and Jamrog claim they are entitled to qualified immunity because they had no personal involvement in what happened to Mr. Young. Defendants claim that Mr. Young received the proper amount of care. In their motion and brief, Defendants Martin [*924] and Jamrog chronicle in detail the [**9] amount of medical attention Mr. Young received, including the submission of Mr. Young's medical record, which Defendants indicate Plaintiff already has in his possession.

Public officials carrying out executive responsibilities are entitled to qualified immunity from personal liability for money damages under § 1983. Under the doctrine of qualified immunity, such an official will not be found personally liable for money damages unless the official's actions violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). The "clearly established" rights allegedly violated by the official cannot be considered at an abstract level, but must be approached at a level of specificity, "the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 639, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987). A plaintiff must prove two factors to show that a government official is not entitled to qualified immunity from his suit: [**10] 1) that the facts as alleged by him show a violation of a constitutional right; and 2) that such violated right was clearly established. Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151, 2156, 150 L. Ed. 2d 272 (2001). Under the Eighth Amendment, prison inmates have a right to a certain level of medical care and deliberate indifference to the serious medical needs of a prisoner violates this Eighth Amendment right by subjecting them to cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104-05, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976); Sanderfer v. Nichols, 62 F.3d 151, 153 (6th Cir. 1995). The standard encompasses two components: objectively, the medical needs must be sufficiently serious, and subjectively, the state actors involved must have acted in a deliberately indifferent manner. Hunt v. Reynolds, 974 F.2d 734, 735 (6th Cir. 1992).

The first factor to be addressed is whether, based on the facts alleged by Plaintiff, Defendants violated the decedent's constitutional rights. It is clear that based on the Supreme Court and Sixth Circuit cases, the decedent had a constitutional right to a certain [**11] level of medical care and that the deliberate indifference to the serious medical needs of the decedent would violate his Eighth Amendment right to be free from cruel and unusual punishment.

As to whether Defendant Jamrog violated Mr. Young's right, if he was not employed by either Adrian facilities as the Warden at the time the decedent was housed at those facilities, Defendant Jamrog could not have violated Mr. Young's constitutional right under the Eighth Amendment, either personally or in his supervisory capacity. Defendant Jamrog's affidavit indicates that he was not employed at the Adrian facilities during the time period at issue. Defendant Jamrog could not have violated Mr. Young's rights and, therefore, he is entitled to qualified immunity.

Regarding Defendant Martin, as noted in the previous analysis, although Defendant Martin was not personally involved, Plaintiff stated a policy argument in his Complaint at Paragraph 31. Under a qualified immunity analysis, "deliberate indifference describes a state of mind more blameworthy than negligence" and it entails "something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result. [**12] " Farmer v. Brennan, 511 U.S. 825, 835, 128 L. Ed. 2d 811, 114 S. Ct. 1970 (1970). A prison official is only "found liable under the Eighth Amendment for denying an inmate humane conditions of confinement [if] the official knows of and disregards an [*925] excessive risk to inmate health or safety." Id. at 837. "The official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. "Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence ... and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious." Id. at 842. "It is enough [for the prisoner to show] that the official acted or failed to act despite his knowledge of a substantial risk of serious harm" but "need not show that [the] prison official acted or failed to act believing that harm actual would befall [the prisoner]." Id.

Here, Defendant Martin has indicated that he has [**13] no personal involvement in this case but admits he is the administrative officer of the MDOC. Plaintiff has alleged that Defendant Martin executed a policy regarding the authorization request procedure utilized by the correctional medical services department which discouraged the administration of necessary life saving health care to inmates. Defendant Martin has not sufficiently established that he had no knowledge that there was a substantial risk of serious harm in the execution of this policy. Viewing the evidence most favorable to Plaintiff, based on his Complaint, Plaintiff has stated a sufficient policy claim. Limited discovery is required on what the policy at issue is, whether said policy violated Mr. Young's constitutional rights under the Eighth Amendment, and whether Defendant Martin had knowledge that the policy had a substantial risk of serious harm.

As to the second factor, Mr. Young's constitutional right to be from deliberate indifference to his medical needs is clearly established based on the Estelle holding by the Supreme Court in 1976.

Defendant Jamrog is entitled to qualified immunity. Limited discovery should be conducted as to the policy Plaintiff claims [**14] is at issue and whether Defendant Martin had any knowledge of such policy.


IV. CONCLUSION

Accordingly,

IT IS ORDERED that Defendants' Motion to Stay Discovery (Docket No. 9, filed August 22, 2001) is GRANTED IN PART and DENIED IN PART. Limited discovery is required on the qualified immunity defense as to Defendant Martin only.

IT IS FURTHER ORDERED that Defendants' Motion for Summary Judgment (Docket No. 10, filed August 22, 2001) is GRANTED IN PART and DENIED IN PART. Defendant Jamrog is DISMISSED with prejudice. The claims against Defendant Martin are DISMISSED based on lack of personal involvement and qualified immunity except for the policy claim against Defendant Martin. The Motion for Summary Judgment based on qualified immunity as to Defendant Martin only is denied without prejudice. The policy claim against Defendant Martin remains but may be renewed after limited discovery is conducted as to the policy at issue as it relates to Defendant Martin's qualified immunity defense.

IT IS FURTHER ORDERED that all discovery on the qualified immunity issue as it relates to Defendant Martin only must be completed by Friday, December 22, 2001. If Defendant [**15] Martin appeals the instant order, discovery in this matter is stayed. See Mitchell v. Forsyth, 472 U.S. 511, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985)(a district court's denial of a claim of qualified immunity, to the extent that it [*926] turns on an issue of law, is an appealable final decision within the meaning of 28 U.S.C. § 1291 under the collateral order doctrine).

DENISE PAGE HOOD

United States District Judge


DATED: OCT 24 2001