Kindl v. City of Berkley

• Decision Date: 18 August 2015
• Docket Number: No. 13–2234.,13–2234.
• Citation: 798 F.3d 391
• Parties: Katie KINDL, Plaintiff–Appellee, v. CITY OF BERKLEY, et al., Defendants, Kent Herriman; Michael Moschelli, Defendants–Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

798 F.3d 391

Katie KINDL, Plaintiff–Appellee

v. CITY OF BERKLEY, et al., DefendantsKent Herriman; Michael Moschelli, Defendants–Appellants.

No. 13–2234.

United States Court of Appeals, Sixth Circuit.

Argued: Jan. 13, 2015.

Decided and Filed: Aug. 18, 2015.

Rehearing En Banc Denied Sept 18, 2015.

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.

Before: SUHRHEINRICH, CLAY, and ROGERS, Circuit Judges.

CLAY, J., delivered the opinion of the court in which ROGERS, J., joined, and SUHRHEINRICH, J., joined in the result.

OPINION

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, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). A motions panel denied the motion on the basis that “the factual-legal issue governing jurisdiction is a close call” in this 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 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.

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. 282, 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...