Katie Kindl v. City of Berkley ( 2015 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 15a0192p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
KATIE KINDL, ┐
Plaintiff-Appellee, │
│
│ No. 13-2234
v. │
>
│
CITY OF BERKLEY, et al. │
Defendants, │
│
│
KENT HERRIMAN; MICHAEL MOSCHELLI, │
Defendants-Appellants. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:12-cv-13410—Bernard A. Friedman, District Judge.
Argued: January 13, 2015
Decided and Filed: August 18, 2015
Before: SUHRHEINRICH, CLAY, and ROGERS, Circuit Judges.
_________________
COUNSEL
ARGUED: Mary Massaron, PLUNKETT COONEY, Bloomfield Hills, Michigan, for
Appellants. Donald M. Fulkerson, Westland, Michigan, for Appellee. ON BRIEF: Mary
Massaron, PLUNKETT COONEY, Bloomfield Hills, Michigan, for Appellants. Donald M.
Fulkerson, Westland, Michigan, for Appellee.
CLAY, J., delivered the opinion of the court in which ROGERS, J., joined, and
SUHRHEINRICH, J., joined in the result.
1
No. 13-2234 Kindl v. City of Berkley, et al. Page 2
_________________
OPINION
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CLAY, Circuit Judge. Officer Kent Herriman and dispatcher Michael Moschelli
(“Defendants,” collectively) appeal from the district court’s ruling denying their motions for
qualified immunity, Michigan governmental immunity, and summary judgment in this suit
arising from the death of Lisa Kindl (“Kindl”). Kindl died of delirium tremens, a severe form of
alcohol withdrawal, within less than a day of being taken into custody—and after receiving no
medical attention for her condition. For the reasons that follow, we DISMISS the appeal of the
district court’s qualified immunity and summary judgment rulings for want of jurisdiction, and
we AFFIRM the district court’s ruling denying Michigan governmental immunity.
BACKGROUND
Procedural History
Following Lisa Kindl’s death, her daughter Katie Kindl (“Plaintiff”) filed the instant
action in state court asserting constitutional violations under 42 U.S.C. § 1983 and gross
negligence, the intentional infliction of emotional distress, and other claims under Michigan law.
Defendants removed the case to federal court. Following discovery, the parties filed cross
motions for summary judgment. As relevant to the present appeal, the district court ruled that
Plaintiff’s individual claims of deliberate indifference and intentional infliction of emotional
distress could proceed solely as to two officers, Herriman and Moschelli. The court dismissed
the other claims and defendants from the case and denied Defendants’ claims to qualified
immunity under § 1983 and governmental immunity under Michigan law. Upon Plaintiff’s
motion for reconsideration, the district court reinstated her claim of gross negligence.
Defendants timely noticed their interlocutory appeal. Plaintiff moved to dismiss the
appeal, arguing that because the parties’ dispute about qualified immunity concerned factual
issues rather than disputes about the clarity of existing law, we lacked subject matter jurisdiction
to hear the appeal under Johnson v. Jones, 515 U.S. 304, 319-20 (1995). A motions panel denied
the motion on the basis that “the factual-legal issue governing jurisdiction is a close call” in this
No. 13-2234 Kindl v. City of Berkley, et al. Page 3
case, judging it best to allow the merits panel to consider the jurisdictional issue with the benefit
of the full briefing of the parties. (No. 13-2234, Order, at 2.) One of our colleagues dissented
from the denial of the motion, arguing that Defendants have not presented a pure issue of law fit
for interlocutory appellate review. The parties duly completed their briefing, and the appeal was
presented to this panel for resolution.
Factual Background
Lisa Kindl reported to a probation appointment on the morning of July 12, 2010. She
admitted to drinking vodka the evening before, and a breathalyzer test revealed a blood alcohol
level of .053. She was arrested for violating a condition of her probation that she refrain from
alcohol use, and she was placed in the custody of the Berkeley Department of Public Safety to
await a court hearing the following day.
The video recording of her booking shows Kindl telling an officer, who is identified by
the parties as Officer Geary, that she was anxious and that she “might have a little alcohol
withdrawal.” (R. 32-9 at 9:55 a.m.) After booking, Kindl was given a blanket and placed in cell
one, which was subject to video monitoring and direct visual observation by the front desk.
Officer Geary remained the officer on duty at the front desk until 7 p.m. He testified in his
deposition that he informed the desk officer replacing him, Officer Herriman, of Kindl’s
comment about suffering from alcohol withdrawal. Herriman, however, denied in his deposition
that he had knowledge about Kindl’s risk of alcohol withdrawal at the beginning of his shift.
The video footage of Kindl’s time in cell one constitutes a significant, though notably
imperfect, source of evidence in this case. The video is black and white and has no sound.
Additionally, based on what appears to be a motion-activated aspect of the recording technology,
the image (together with the time-stamp) frequently freezes for seconds or even minutes at a time
when Kindl is lying down.
Kindl spent much of the morning and afternoon of July 12, 2010 lying on the cement
bench in various positions, covered by the blanket she was given by jail staff, or intermittently
standing by the door to the cell, looking out through the small window in the door. Her
condition worsened in the evening. At 7:46 p.m., the video shows her entire body jerking
No. 13-2234 Kindl v. City of Berkley, et al. Page 4
dramatically in an apparent seizure lasting about thirty seconds. Shortly after 8 p.m., Kindl
began trying to get the attention of the officers. From the video it is apparent that her shorts were
wet—she appeared to have urinated on herself. The video shows Kindl knocking on the large
monitoring window four different times, repeatedly calling out, and peering through both that
window and the smaller window in the door to her cell.
Kindl eventually succeeded in speaking with Herriman and Moschelli. Because the video
lacks audio, the conversation is not recorded. In a statement signed the following day, Herriman
reported that Kindl told them that she had urinated on herself “and that she was concerned she
may go into DTs [i.e., delirium tremens] at some point.” (R. 29-8, Herriman Statement & Dep.,
PageID 473.) According to both officers’ statements, Moschelli asked Kindl what she needed,
and Kindl asked for them to keep an eye on her. Moschelli assured her that he would. The
officers repeated this version of events in their deposition testimony. Moschelli testified that he
asked Kindl during this conversation “if she was having any symptoms as we spoke” and that she
replied no. (R. 29-7, Moschelli Dep., PageID 437.) Herriman testified that he frequently
checked Kindl by means of the video monitor and the cell window throughout the rest of his
shift, which lasted until 1:30 a.m. Moschelli testified that he left the intercom on for Kindl’s cell
so that they would hear anything that occurred.
Kindl lay back down on the cement bench following her conversation with Defendants.
Throughout the rest of the evening, the video shows her intermittently experiencing convulsions
and seizures and, on a number of occasions, calling out or speaking. At 8:34 p.m., as she was
lying on the bench, the video shows her body convulsing for about fifteen seconds. At 8:56 p.m.,
she got up and leaned her face to the monitoring window as if attempting to look through. She
appeared to shout, and then quickly returned to lying on the cement bench. At 10:25 p.m., as
Kindl was lying on her side, her body began to convulse and she fell backwards off the cement
bench onto the floor. After the fall, she picked herself up and sat on the opposite bench for a
while, then appeared to speak, looking repeatedly at the monitoring window. After using the
toilet, she walked over to the monitoring window and again seemed to speak. She did not stay
standing long, but wrapped the blanket around herself and sat again on the cement bench, then
eventually lay down again.
No. 13-2234 Kindl v. City of Berkley, et al. Page 5
During the hour and a half that followed, Kindl was almost exclusively lying down.
Although the video quality is too poor to be certain, some of her movements are consistent with
shaking. At 11:52 p.m., the video shows Kindl lying on the cement bench with her head close to
the monitoring window. At 11:53:45 p.m., she experienced a violent seizure that lasted for
approximately forty seconds. When the seizure ended, Kindl was lying on her stomach with her
arms above the blanket at odd angles. Although the precise time of her death has not been
determined, she did not move again after that seizure ended.
Six hours passed before Kindl’s body was discovered in that same position by Herriman
and another officer. Forensic pathologist Werner Spitz, M.D testified that Kindl died of delirium
tremens. According to the National Institutes of Health, delirium tremens is “a severe form of
alcohol withdrawal that involves sudden and severe mental or nervous system changes.” (R. 28-
2, NIH Article, PageID 217.) The condition is “serious and may be life threatening” if treatment
is not provided. (Id. at 218-19.) Spitz reviewed the video and testified in his deposition that
Kindl displayed “classical manifestations” of delirium tremens, including sweating, urinary
incontinence, tremors, and seizures. (R. 33-4, Spitz Deposition, PageID 1316-20.) Spitz also
noted the possibility that Kindl experienced auditory or visual hallucinations based on her
confused behavior.
The parties dispute the knowledge about alcohol withdrawal and delirium tremens that
can be attributed to Herriman and Moschelli. Chief of Police Richard Eshman testified that he
required his officers to be medical first responders, a level of training between first aid and an
emergency medical technician. Under his orders, two officers were required to go to every
ambulance run in the city in order to increase the officers’ exposure to trauma and medical
response. Although the department did not provide specific training to its officers about alcohol
withdrawal, Eshman testified that he believes “everybody knows alcohol withdrawal and
subsequent D.T.s is a serious medical condition.” (R. 29-17, Eshman Dep., PageID 618) Both
Herriman and Moschelli testified that they were aware that alcohol withdrawal could be a serious
and even deadly condition, though Moschelli asserted he did not know in July 2010 that alcohol
withdrawal could be fatal. Both Defendants testified that they never saw Kindl have a possible
seizure and that she never showed any signs of physical distress.
No. 13-2234 Kindl v. City of Berkley, et al. Page 6
The record also contains deposition testimony by two other detainees confined in the
Berkeley Department of Public Safety that night. Michael McClanahan, who was detained in
cell two beginning around 7:30 p.m. that evening, testified to hearing Kindl calling out for help,
trying to get the officers’ attention, and moaning as if unwell for an hour or two until she
eventually quieted down. He also testified to seeing her with the blanket wrapped around her
shoulders, and described her as visibly sick, in “shock” with a “clammy look” and “just no
expression.” (R. 33-7, McClanahan Dep., PageID 1333-36.) A second detainee, Andre Henry,
testified that as he was being booked into the jail that evening, he heard a woman calling for help
with no response from the officers, who told him that “she was a bug,” i.e., crazy. (R. 33-8
Henry Dep., PageID 1337-40.) The video establishes, however, that Henry did not arrive to the
Berkley Department of Public Safety until approximately 3:30 a.m., hours after Kindl suffered
her final seizure.
DISCUSSION
I. Qualified Immunity
Defendants moved for summary judgment on the basis that they were entitled to qualified
immunity with regard to Plaintiff’s deliberate indifference claim. Qualified immunity protects
government officials sued under § 1983 from damages liability “insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person would
have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quotation marks omitted). To
qualify as clearly established, “‘[t]he contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing violates that right.’” Brown v. Lewis,
779 F.3d 401, 412 (6th Cir. 2015) (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)) (editing in
original).
Plaintiff asserts that Defendants violated her mother’s right to adequate medical treatment
under the Fourteenth Amendment. To succeed on her claim, she must show that Defendants
“acted with deliberate indifference to [Kindl’s] serious medical needs.” Estate of Carter v. City
of Detroit, 408 F.3d 305, 311 (6th Cir. 2005) (quotation marks omitted). This task entails an
objective showing that Kindl had a “sufficiently serious medical need,” and a subjective showing
that “the defendant possessed a sufficiently culpable state of mind in denying medical care.” Id.No. 13-2234 Kindl v. City of Berkley, et al. Page 7
(citations and quotation marks omitted). The district court held that Plaintiff established a
dispute of material fact as to both prongs of this inquiry and denied Defendants’ request for
qualified immunity on that basis.
The denial of qualified immunity in a § 1983 case is a final, immediately appealable
decision under the collateral order doctrine only to the extent the appeal presents a “neat abstract
issue[] of law.” Johnson v. Jones, 515 U.S. 304, 317 (1995) (quotation marks omitted); see also
Moldowan v. City of Warren, 578 F.3d 351, 369 (6th Cir. 2009) (“In considering the denial of a
defendant’s claim of qualified immunity, . . . our jurisdiction is limited to resolving pure
questions of law.”). Thus, an interlocutory appeal of the denial of qualified immunity at
summary judgment may typically only test “‘the substance and clarity of pre-existing law.’”
Martin v. City of Broadview Heights, 712 F.3d 951, 957 (6th Cir. 2013) (quoting Ortiz v. Jordan,
562 U.S. 180, 190 (2011)). We lack jurisdiction to review a summary judgment ruling on
qualified immunity “insofar as that order determines whether or not the pretrial record sets forth
a ‘genuine’ issue of fact for trial.” Johnson, 515 U.S at 319-20; see also Plumhoff v. Rickard,
134 S. Ct. 2012, 2019 (2014) (discussing Johnson’s holding that “an order denying summary
judgment based on a determination of ‘evidence sufficiency’ does not present a legal question”
appropriate for review under the collateral order doctrine).
Defendants’ principal arguments regarding qualified immunity reduce merely to a factual
contention that Plaintiff cannot prove that they should have known of, much less that they were
in fact aware of, Kindl’s serious medical need. We lack jurisdiction to consider these arguments.
Johnson, 515 U.S. at 319-20. Defendants also attempt rather incredibly to argue that Kindl did
not have a serious medical need. This, too, is a factual dispute that does not qualify as a pure
question of law sufficient to create appellate jurisdiction at this stage of the proceedings.
A. Defendants’ Knowledge of Kindl’s Serious Medical Need
At bottom, Defendants contest the sufficiency of Plaintiff’s evidence to establish their
knowledge of Kindl’s condition. For example, they argue that Kindl’s statement during her
booking about experiencing alcohol withdrawal is insufficient to establish that the officers knew
she was suffering from a serious medical condition, that she only once sought the officers’
attention and then only requested they keep an eye on her, and that no evidence in the record
No. 13-2234 Kindl v. City of Berkley, et al. Page 8
supports a conclusion that Kindl suffered from delirium tremens. These are arguments merely of
“‘evidence sufficiency, i.e., which facts a party may, or may not, be able to prove at trial,’” and
are therefore beyond our jurisdiction on this appeal. Plumhoff, 134 S. Ct. at 2019 (quoting
Johnson, 515 U.S. at 313); see also Ortiz, 562 U.S. at 190-91 (holding that the defendants did
not raise a purely legal issue where the pre-existing law regarding deliberate indifference in a
failure to protect context was “not in controversy” and defendants’ arguments instead addressed
factual questions concerning what the officers knew and what they could have done to protect
the plaintiff).
Defendants make a number of arguments in an attempt to circumvent the jurisdictional
bar. First, Defendants invoke the Supreme Court’s decision in Scott v. Harris, 550 U.S. 372(2007) as authorizing review of the district court’s factual determinations in this case. Scott
came before the Supreme Court on an interlocutory appeal from the district court’s denial of
qualified immunity in a § 1983 excessive force case concerning police conduct in a high-speed
car chase. Id. at 375-76. Relying on a video of that chase from the dashboard of a police
vehicle, the Supreme Court rejected the trial court’s finding of a genuine issue of material fact
because in light of the video, the plaintiff’s version of the facts was “so utterly discredited by the
record that no reasonable jury could have believed him.” Id. at 380. The Court found that the
video conclusively established the dispositive fact that the plaintiff’s reckless driving during the
chase placed “officers and innocent bystanders alike at great risk of serious injury,” and that, as a
matter of pure law in light of that incontestable fact, the defendant acted reasonably under the
Fourth Amendment by ramming the plaintiff’s car. Id. at 380, 383-84.
Although the opinion in Scott did not discuss the jurisdictional question, because it
reversed the district court’s holding that there was a genuine dispute of material fact precluding
qualified immunity at the summary judgment stage, we have recognized that it represents an
exception to Johnson. Austin v. Redford Twp. Police Dep't, 690 F.3d 490, 493 (6th Cir. 2012);
Moldowan, 578 F.3d at 370-71. That exception is narrow: only “where the trial court’s
determination that a fact is subject to reasonable dispute is blatantly and demonstrably false”
based on irrefutable evidence such as clear video footage, “a court of appeals may say so, even
on interlocutory appeal.” Moldowan, 578 F.3d at 370 (quotation marks omitted); see also Romo
No. 13-2234 Kindl v. City of Berkley, et al. Page 9
v. Largen, 723 F.3d 670, 675 (6th Cir. 2013) (construing Scott as a limited exception only
applicable where there are “blatantly contradicted facts”); Austin, 690 F.3d at 493 (quoting Scott,
550 U.S. at 380-82) (“Although we must view the facts as assumed by the district court, to the
extent this version of events is ‘blatantly contradicted’ by videotape evidence, we must ‘view[ ]
the facts in the light depicted by the videotape.’”).
Defendants first argue that the video of Kindl’s time in cell one conclusively establishes
that she did not act in a way that would have alerted the two officers to her need for medical
treatment. We need not decide whether a video with such frequent lapses as the one in this case
may even qualify as the sort of irrefutable evidence that would come within the Scott exception
because, upon our review, even with its imperfections, the video reflects that Kindl sought the
attention of the officers after experiencing a seizure, that she urinated on herself, that she fell off
the bench, and that she experienced additional seizures before her death. Moreover, the video
does not conclusively establish, as Defendants claim, that she never again sought help after the
8 p.m. conversation—to the contrary, it shows her apparently calling out on at least one
occasion, and at other points the video footage would be consistent with her speaking.
Defendants also argue that the video contradicts the district court’s reliance on the
testimony of the other detainees, McClanahan and Henry. The video does not blatantly
contradict McClanahan’s testimony. Although McClanahan acknowledged that he was unable to
see Kindl except from a particular position, he was able to describe seeing her stand with her
arms wrapped around her middle, seeing her seek attention from the camera and the officers, and
seeing her with the blanket around her shoulders—all descriptions that coincide with events
recorded by the video. And his testimony that he heard her call out for help and moan in
discomfort over a period of hours is not contradicted by the silent video. Defendants appear to
be correct that Henry’s testimony is irreconcilable with objective video evidence that Kindl’s
final movements occurred hours before his arrival at the jail. Yet the district court’s error as to
Henry is insufficient to trigger appellate jurisdiction under Scott. In Scott, the video evidence
placed a dispositive fact beyond any dispute, leaving the record without any “‘genuine issue of
material fact,’” and therefore permitting resolution of the Fourth Amendment issue as a pure
question of law. 550 U.S. at 380 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48
No. 13-2234 Kindl v. City of Berkley, et al. Page 10
(1986) (emphasis added by Scott)). Here, even if Henry’s testimony were eliminated, genuine
disputes of material facts would remain, based on the video evidence and the other testimony in
the case, precluding appellate jurisdiction at this stage in the proceedings. See id.; see also
Moldowan, 578 F.3d at 370-71.
Next, citing the concurring opinion in Romo, Defendants urge this Court to relax the
jurisdictional boundaries imposed by Johnson v. Jones and review the “inferences” to be drawn
from the factual record. See Romo, 723 F.3d at 679 (Sutton, J. concurring) (arguing that
inferences derived from factual details in the record “remain subject to interlocutory review”).
This argument is contrary to both Sixth Circuit and Supreme Court precedent. Factual
“inferences” capable of being drawn from the evidence are still inherently factual determinations
about what parties “may, or may not, be able to prove at trial.” Johnson, 515 U.S. at 313.
Embracing appellate jurisdiction over “inferences” offers no principled limit to appellate review
of factual disputes relevant to qualified immunity because in many cases, including this one, the
“inferences” at issue are nothing more than aggregate factual questions. We are in no better a
position than the district court—or more to the point, a jury—to determine whether based on
Kindl’s statements, convulsions, alleged moans, requests for attention, and appearance,
Defendants subjectively understood the gravity of her situation. The ultimate “inference”
regarding Defendants’ knowledge depends on credibility determinations as well as the composite
of evidence ultimately put before a jury. Permitting interlocutory appellate review under the
guise of considering only “inferences” would thus erase the well-established boundaries
protecting the function of the ultimate factfinder and deviate from binding precedent set out in
Johnson and its progeny.
The majority in Romo declined to join the concurrence in anticipating Johnson’s
overruling. 723 F.3d at 675 (majority opinion) (“[T]o accept the reading of Johnson advocated
by the concurrence, we would have to read Scott to have foreshadowed the overruling of
Johnson's explicit holding.” (footnote omitted)). Subsequent developments have validated their
caution. The Supreme Court has since reaffirmed Johnson’s holding that a trial court’s
determination that there is a genuine dispute of fact—“i.e., which facts a party may, or may not,
be able to prove at trial”—is not fit for interlocutory review under the collateral order doctrine.
No. 13-2234 Kindl v. City of Berkley, et al. Page 11
Plumhoff, 134 S. Ct. at 2019 (applying Johnson and reviewing only the “legal issues” regarding
the reasonableness of the use of force in a high speed car chase).
B. The Seriousness of Kindl’s Medical Condition
Incredibly, Defendants also argue that Kindl did not have a serious condition entitling her
to medical treatment—despite the undisputed evidence that her condition entailed incontinence
and multiple seizures, and that it ultimately resulted in her death. This argument is without
merit. A medical condition is sufficiently serious to confer constitutional protections where
delay in treatment may cause “a serious medical injury.” See Blackmore v. Kalamazoo Cnty.,
390 F.3d 890, 898 (6th Cir. 2004).1 This poses a question of fact capable of resolution by
competent evidence, including, of course, evidence that the detainee died as a result of the
medical condition. See id. Thus, even if Defendants could credibly point to evidence that
Kindl’s condition was not serious, such a fact-based question is beyond the scope of our
jurisdiction under Johnson. See 515 U.S. at 317.
Defendants attempt to circumvent both the facts and the jurisdictional limitations of this
Court by selective citation to cases which they argue suggest that alcohol withdrawal is not a
serious medical condition for which a detainee has a right to be treated. There is no merit to their
arguments.
In a case not cited by Defendants, this Court unequivocally recognized—prior to Kindl’s
detention—that “delirium tremens . . . is a life-threatening condition caused by acute alcohol
withdrawal.” Smith v. Cnty. of Lenawee, 600 F.3d 686, 688 (6th Cir. 2010) (“County of
Lenawee”); see also Spears v. Ruth, 589 F.3d 249, 254 (6th Cir. 2009) (“[W]e have found that a
detainee lying face down, unresponsive and exhibiting symptoms of delirium tremens showed
medical need sufficient for lay people to recognize he needed medical attention.”) (citing Bertl v.
City of Westland, No. 07-2547, 2009 WL 247907, at *5 (6th Cir. Feb. 2, 2009)). The substance
1
A medical need may also qualify as 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 added by Blackmore). For all the reasons discussed above with regard
to Defendants’ knowledge, material disputes of fact about the obviousness of Kindl’s distress would preclude our
jurisdiction over the application of this test, as well.
No. 13-2234 Kindl v. City of Berkley, et al. Page 12
and clarity of existing law in this context is thus not reasonably in dispute. See Ortiz, 562 U.S. at
190-91.
The cases cited by Defendants do not suggest that there is any genuine question of law
related to a detainee’s right to receive medical treatment for acute alcohol withdrawal or delirium
tremens. They principally rely on Speers v. County of Berrien, 196 F. App’x 390 (6th Cir. 2006)
(per curiam), yet in that case we explicitly recognized that delirium tremens is a severe form of
alcohol withdrawal and is unquestionably a serious medical condition within the meaning of the
Fourteenth Amendment:
With regard to the objective inquiry—was the threat sufficiently serious?—the
district court correctly held that a material fact dispute exists. The cause of Speers'
death, to be sure, is disputed. But taking the facts in the light most favorable to the
plaintiffs, we must assume as their experts attest that Speers was suffering from a
serious condition—“delirium tremens . . . a well recognized manifestation of
alcohol withdrawal.” Expert testimony showed that delirium tremens, if untreated,
is often fatal—which assuredly makes it a “serious” medical condition.
196 F. App’x at 394 (citations omitted). Defendants emphasize a passage in Speers in which we
acknowledged that the terms “alcohol withdrawal” and the “D.T.s” are often used
interchangeably—for this reason, we explained, an official’s use of the term “D.T.s” did not
indicate, without more, that the official was aware that the patient’s condition was acute. See id.
at 395. Thus, the distinction was relevant only to evidence of the official’s knowledge—not to
the objective seriousness of the medical need. See id. Defendants also misleadingly cite our
statement in Speers that “general alcohol withdrawal [] typically may be managed in a prison
setting” to suggest that they were not under a duty to provide Kindl with medical attention. Id.
The quotation must be placed in context: Speers received medical treatment at the prison. He
was placed on sick call, examined by a doctor, given medication, and placed in the medical
observation cell. Id. at 392. Moreover, in Speers, we affirmed the denial of qualified immunity
to two officers who were responsible for monitoring the inmate in the hours before his death
during a period when another prisoner testified he was exhibiting serious symptoms, including
collapsing, a seizure, “having a strange look,” and foaming at the mouth. Id. at 398. We
explained that based on these symptoms, a jury could “fairly infer . . . that Speers faced a
substantial risk of serious harm.” Id. The guards’ knowledge about alcohol withdrawal as a
No. 13-2234 Kindl v. City of Berkley, et al. Page 13
condition was not dispositive: “With or without alcohol withdrawal, with or without training,
the symptoms that Warner reported establish a triable issue of fact about whether the guards
should have contacted medical personnel in response to this problem or at least should have tried
to engage Speers verbally or entered his cell.” Id. at 398 (emphasis added). Thus, nothing in
Speers suggests that there exists a “neat abstract issue[] of law” about the objective seriousness
of alcohol withdrawal as a medical condition. Johnson, 515 U.S. at 317.
Defendants’ citation to Meier v. County of Presque Isle, 376 F. App’x 524 (6th Cir. 2010)
and Smith v. Pike County, Kentucky, 338 F. App'x 481 (6th Cir. 2009) (per curiam) (“Pike
County”) is similarly unavailing. In Meier, we affirmed summary judgment awarded to the
defendants on a deliberate indifference claim arising from Meier’s falling into a coma as a result
of alcohol withdrawal. 376 F. App’x at 531. In that case, where Meier was arrested with a BAC
level of .31 but “cooperated, communicated effectively, and walked unassisted,” we held that the
plaintiff had not established evidence that the arresting officer had knowledge of the seriousness
of the detainee’s medical condition. Id. at 529-30. Thus, Meier turned on the sufficiency of the
evidence with regard to the officer’s knowledge—a factual issue that was properly before us on
review of a final judgment. The case in no way suggests any legal basis for questioning the
seriousness of the detainee’s medical need. See id. Pike County, too, affirmed the award of
summary judgment to the defendants where “[t]he evidence [did] not establish that [the] jail
officials were aware that Roberts had a sufficiently serious medical need or that they acted in
conscious disregard by refusing medical care.” 338 F. App’x at 482.
In sum, Defendants fail to identify any pure question of law that might entitle them to
qualified immunity on the objective element of the deliberate indifference claim. The cases they
cite in aid of their appeal do not cast into doubt the seriousness of alcohol withdrawal as a
medical condition, much less overcome the existence of evidence supporting the district court’s
conclusion that Plaintiff met her summary judgment burden in establishing that Kindl had a
serious medical need. Instead, each case cited by Defendants discusses whether the particular
evidence in the record was sufficient to show that the defendants “appreciated” the detainee’s
medical needs. See, e.g., Meier, 376 F. App’x at 529. Defendants’ arguments in reliance on
these cases, at bottom, repackage their factual dispute with regard to the subjective prong of
No. 13-2234 Kindl v. City of Berkley, et al. Page 14
Plaintiff’s deliberate indifference claim. Because Defendants are simply making another
“impermissible argument[] regarding disputes of facts,” Estate of Carter, 408 F.3d at 310, we do
not have jurisdiction over their appeal of the district court’s denial of qualified immunity.
II. Michigan Governmental Immunity
In addition to the federal Fourteenth Amendment claim, Plaintiff has also asserted two
claims under Michigan law: gross negligence and intentional infliction of emotional distress.
The district court held that both claims survived summary judgment, and that Defendants were
not entitled to Michigan governmental immunity on either claim. Under Sixth Circuit precedent,
a district court’s ruling denying Michigan governmental immunity under Michigan Compiled
Laws § 691.1407 is a “final order” that may be immediately appealed under 28 U.S.C. § 1291.
County of Lenawee, 600 F.3d at 689-90. We review the denial of governmental immunity at the
summary judgment stage de novo, drawing all inferences in favor of the non-moving party.
Younes v. Pellerito, 739 F.3d 885, 890 (6th Cir. 2014). “[W]here a plaintiff has made a
sufficient showing to create a genuine issue of fact,” summary judgment on the basis of
governmental immunity is precluded. Id. (quotation marks omitted).
Michigan law on governmental immunity for public officials contains different tests for
negligence claims and intentional torts. Mich. Comp. Laws § 691.1407(2) & (3); see also Odom
v. Wayne Cnty., 760 N.W.2d 217 (Mich. 2008) (discussing both tests in depth). The standard
applicable to negligence claims is spelled out at § 691.1407(2) and includes the following three
requirements:
(a) The officer, employee, member, or volunteer is acting or reasonably believes
he or she is acting within the scope of his or her authority.
(b) The governmental agency is engaged in the exercise or discharge of a
governmental function.
(c) The officer’s, employee’s, member’s, or volunteer’s conduct does not amount
to gross negligence that is the proximate cause of the injury or damage.
§ 691.1407(2) (emphasis added). For purposes of the immunity statute, gross negligence occurs
when a defendant’s conduct is “so reckless as to demonstrate a substantial lack of concern for
whether an injury results.” § 691.1407(8)(a). Where material disputes of fact exist as to whether
the conduct was grossly negligent, award of governmental immunity at summary judgment is
No. 13-2234 Kindl v. City of Berkley, et al. Page 15
improper. Oliver v. Smith, 810 N.W.2d 57, 62 (Mich. Ct. App. 2010). A jury could find that
Defendants displayed “a substantial lack of concern for whether an injury results” when they
failed to seek or provide any medical assistance for Kindl despite having been alerted to her
condition (both by Kindl and, allegedly, by Officer Geary) and despite her visible symptoms
including multiple seizures, urinary incontinence, and falling off the bench. Additionally, a jury
could credit McClanahan’s testimony that Kindl was calling for help, and they could interpret the
video evidence as corroborating his testimony. These permissible factual findings would support
a conclusion that Defendants failed to adequately monitor Kindl’s condition, or that they were
aware of her condition but chose not to act, or even that they ignored her direct requests for help
knowing that she was suffering from alcohol withdrawal—all of which could constitute gross
negligence within the meaning of §§ 691.1407(2)(c) and (8)(a). Moreover, Defendants’
contention that their failure to provide needed and potentially life-saving treatment to a detainee
within their custody was not “the” proximate cause of Kindl’s death is entirely without merit.
Dominguez v. Corr. Med. Servs., 555 F.3d 543, 552-53 (6th Cir. 2009). Defendants were under a
duty to provide Kindl with needed medical care, and Plaintiff has proffered evidence that their
failure to do so resulted in Kindl’s death. Governmental immunity on this count was properly
denied.
Defendants’ claim of governmental immunity with regard to Plaintiff’s claim of
intentional infliction of emotional distress is governed by the common law. § 641.1407(3);
Odom, 760 N.W.2d at 223. Under Odom, an official is entitled to governmental immunity for an
intentional tort if he establishes the following:
(a) The acts were undertaken during the course of employment and the employee
was acting, or reasonably believed that he was acting, within the scope of his
authority,
(b) the acts were undertaken in good faith, or were not undertaken with malice,
and
(c) the acts were discretionary, as opposed to ministerial.
760 N.W.2d at 228. The district court held that if the jury found that Defendants “ignored
[Kindl’s] pleas for help under the circumstances as described by inmates McClanahan and
Henry, then the jury could also find that these defendants did not act in good faith (and are
No. 13-2234 Kindl v. City of Berkley, et al. Page 16
therefore not entitled to immunity).” (R. 41 at 1761.) As discussed earlier, the jury could not
credit Henry’s testimony because it is contradicted by objective video evidence. However, the
jury could still credit McClanahan’s testimony to reach the same determination. Governmental
immunity was properly denied on this claim as well. We do not address the substantive elements
of the claim for intentional infliction of mental distress.
III. Pendent Jurisdiction
Defendants ask us to exercise pendent jurisdiction to review the district court’s denial of
summary judgment on Plaintiff’s claims. Because the denial of a motion for summary judgment
is not an appealable order, we may exercise pendent jurisdiction to review the ruling on collateral
review of an immunity ruling only where the appealable and non-appealable issues are
“inextricably intertwined,” meaning that “the appealable issue at hand cannot be resolved
without addressing the nonappealable collateral issue.” Chambers v. Ohio Dep’t of Human
Servs., 145 F.3d 793, 797 (6th Cir. 1998); see also Law v. Nat’l Collegiate Athletic Ass’n, 134
F.3d 1025, 1028 (10th Cir. 1998) (“[A] pendent appellate claim can be regarded as inextricably
intertwined with a properly reviewable claim on collateral appeal only if the pendent claim is
coterminous with, or subsumed in, the claim before the court on interlocutory appeal—that is,
when the appellate resolution of the collateral appeal necessarily resolves the pendent claim as
well.” (citation and quotation marks omitted)). If this standard is met, we may exercise pendent
jurisdiction as a discretionary matter. Id.Plaintiff’s deliberate indifference claim is not inextricably intertwined with Defendant’s
claim of Michigan governmental immunity on the tort claims—the only issue over which we
have freestanding jurisdiction in this appeal—because the two are governed by distinct standards
and different bodies of law. Compare Estate of Carter, 408 F.3d at 311 with Mich. Comp. Laws
§§ 691.1407(2) & (3); see also Reilly v. Vadlamudi, 680 F.3d 617, 627 (6th Cir. 2012)
(distinguishing between deliberate indifference under the federal constitution and gross
negligence under Michigan law). We need not decide whether the substantive state law claims
are inextricably intertwined with the Michigan governmental immunity analysis because we
would decline in any event to exercise our discretion to review the district court’s summary
judgment ruling on those claims. See Chambers, 145 F.3d at 797.
No. 13-2234 Kindl v. City of Berkley, et al. Page 17
CONCLUSION
For the foregoing reasons, we DISMISS the appeal of the district court’s qualified
immunity and summary judgment rulings for want of jurisdiction, and we AFFIRM the district
court’s ruling denying Michigan governmental immunity.