Rushing v. Wayne County

• Decision Date: 20 September 1990
• Docket Number: Docket No. 74724
• Citation: 436 Mich. 247,462 N.W.2d 23
• Parties: Linda Hartley RUSHING, Plaintiff-Appellant, v. WAYNE COUNTY (Wayne County Sheriff's Department), You Kim and Milas Lebedevitch, Jointly and Severally, Defendants-Appellees.
• Court: Michigan Supreme Court

Page 23

462 N.W.2d 23

436 Mich. 247

Linda Hartley RUSHING, Plaintiff-Appellant, v. WAYNE COUNTY (Wayne County Sheriff's Department), You Kim and Milas Lebedevitch, Jointly and Severally Defendants-Appellees.

Docket No. 74724.

Supreme Court of Michigan.

Argued May 10, 1990.

Decided Sept. 20, 1990.

[436 Mich. 249] Arthur Greenstone, Birmingham, Frank G. Becker, Southfield, for plaintiff-appellant.

[436 Mich. 250] Saul A. Green and John D. O'Hair, Corp. Counsel, John J. McCann, Principal Atty., Frank L. Charbonneau, Asst. Corp. Counsel, County of Wayne, Detroit, for defendants-appellees.

Plunkett & Cooney, P.C. by James I. DeGrazia, Christine D. Oldani, Mich. Mun. League and State Bar of Mich., Public Corp. Law Section, Detroit, for amici curiae.

OPINION

BRICKLEY, Justice.

I. Introduction

Plaintiff-appellant Linda Rushing appeals from the Court of Appeals affirmance of the trial court's grant of a directed verdict in favor of defendant-appellee Wayne County. Ms. Rushing claims that the county was liable under 42 U.S.C. Sec. 1983 for constitutional deprivations she allegedly sustained while a pretrial detainee at the Wayne County Jail. In particular, Ms. Rushing alleged that she was detained in a seminaked state for four days and exposed to repeated observation by members of the opposite sex during her detention. We believe that a reasonable jury could have found that the failure of the county to implement appropriate safeguards to protect against such exposure, in the face of a court-ordered suicide prevention plan mandating the removal of certain inmates' garments, constituted a deliberate indifference to and moving force behind the deprivation of her constitutional rights. We therefore find that the motion should have been denied and the claim submitted to the jury. We reverse the judgment of the Court of Appeals only with respect to the portion of Ms. Rushing's municipal liability claim under 42 U.S.C. Sec. 1983 involving her allegedly unnecessary exposure to members of the opposite sex. This case is remanded to the trial court for further proceedings.

II. Facts and Procedural History

A

Ms. Rushing was detained at the Wayne County Jail from June 8 to June 12, 1976. She testified regarding the following facts. She was taken to her cell by one female and two male deputies. A male deputy ordered Ms. Rushing to remove her clothes. After she removed her outer garments, she asked whether she could keep her underpants and brassiere. The male deputy insisted that she disrobe completely. After she took off her bra and handed it to the male deputy, the male deputy demanded that she remove her underpants and Ms. Rushing began to cry, whereupon she was permitted to keep this item of clothing.

The female deputy returned, again accompanied by a male, to escort Ms. Rushing to see a doctor. While she was being taken out of her cell, Ms. Rushing asked for a blanket and refused to accompany these two persons until one was provided. A jail psychologist told Ms. Rushing that she could have her clothes back. When she reentered her cell, however, the clothes had not been returned.

Ms. Rushing testified that after she had lowered her underpants to use the toilet the next morning, she noticed a custodian leaning on a broom outside her cell. The custodian stared and whistled at Ms. Rushing. Ms. Rushing stated that she then pulled up her underpants, brought her arms up to her chest and cried. Ms. Rushing testified that the custodian came by once or twice a day during her detention, leaned on his broom and stared at her.

On another occasion, two male deputies took Ms. Rushing to get epilepsy medication. She again requested, but was refused, a blanket, and was accompanied down the hall clad only in panties by the two male deputies.

Ms. Rushing further testified that a group of ten or twelve men dressed in suits paused in front of her cell, stared at her and talked among themselves, laughing. This group was accompanied by the jail psychologist who also stopped in front of Ms. Rushing's cell, looked at her, and laughed.

Ms. Beverly Wagner occupied a cell two doors down from Ms. Rushing. Ms. Wagner, who was not classified as a suicide risk and, unlike Ms. Rushing, was not generally confined to her cell all day, testified that she and other female inmates in the ward regularly walked up and down the inmates' "catwalk" directly in front of Ms. Rushing's cell. She stated that there was nothing to obstruct the view into the cells from the inmates' catwalk or from the deputies' catwalk, which was adjacent to and separated by bars from the inmates' catwalk. Ms. Wagner corroborated Ms. Rushing's testimony regarding the daily presence of the custodian and the presence of a group of students in front of Ms. Rushing's cell. Ms. Wagner testified that she attempted to provide covering for Ms. Rushing when males were present, lending Ms. Rushing her gown and holding a blanket in front of Ms. Rushing's cell, but that she was confined to her cell by deputies as a result of these attempts.

Three months prior to Ms. Rushing's detention, a three-judge panel of the Wayne Circuit Court issued an "Order Regarding Sheriff's Suicide Prevention Plan." ¹ The jail administration devised a set of procedures regarding the classification and treatment of potentially suicidal inmates (Reception-Diagnostic Center Procedure No. 4). Procedure No. 4 was signed by Frank Wilkerson, who was employed by the sheriff's office as jail administrator and paid by Wayne County. Mr. Wilkerson, also a lawyer by training, testified that the duties of his office included the responsibility of the administration and operation of the jail, including the reception and maintenance of prisoners. He further stated that he set policies for the jail. According to Procedure No. 4, all women were placed in the women's fourth-floor annex, whereas separate wards were available for potentially suicidal male inmates. Ms. Rushing was placed in a cell in ward 411, a long row of cells in which other, nonsuicidal female inmates were housed. Ms. Rushing's cell had been "suicide proofed" in accordance with the court order. Mr. Wilkerson testified that horizontal bars had been removed from that cell in order to make it difficult, if not impossible, for inmates to tie sheeting to the bars of the cell as a way of committing suicide. According to Procedure No. 4, the jail administrator could order the return of clothing or other items to inmates who had been classified as potential suicide risks.

Although the court order vested the jail administrator with authority to overrule any decision relating to the classification of inmates according to suicidal tendency, and although the procedure authorized the administrator to return clothing to inmates who had been stripped, Mr. Wilkerson testified that decisions regarding the amount and nature of attention an inmate would receive were totally within the responsibility of the psychologist. Mr. Wilkerson testified that decisions would be left to doctors, psychiatrists, and the jail psychologist because he was reluctant to substitute his own opinions for those of people with specialized training.

With regard to jail policy regarding the exposure of naked inmates, Mr. Wilkerson testified that he could not recall ever having adopted a policy prohibiting such exposure. Mr. Wilkerson also stated that he did not know whether male janitors were present on the ward when naked women were housed there. He stated that if appropriate staff was not available, then it would be possible that a male custodian would be assigned to a female ward for a period of three or four days or even longer. He admitted that such staffing decisions were his responsibility, and also stated that it would not be an emergency for a male janitor to be sweeping a floor right in front of the cell where Ms. Rushing was housed. Finally, Mr. Wilkerson stated that there were tours of the jail on an ongoing basis. While it was not policy to allow students to walk by areas where inmates with psychological problems were housed, Mr. Wilkerson admitted that there could be an exception where medical students are concerned. Although tours had to be approved in advance, Mr. Wilkerson stated that he would not have known who would accompany tour groups on floors where psychologically troubled people were being held.

Jail psychologist Kim, to whom Mr. Wilkerson deferred with respect to the handling of inmates, testified that Ms. Rushing was left naked during the time she was detained at the jail as a safety precaution in order to facilitate observation by jail personnel. When asked whether something could have been provided to Ms. Rushing to cover her body when other people were around, Mr. Kim opined that he did not give her a sheet or a blanket because it would be very easy for her to hang herself. Mr. Kim stated that he had experienced thousands of people being stripped since he had worked at the county jail. Mr. Kim testified that because people think about the consequences of their own actions when they have been stripped, in most cases it is good for a person to be stripped and exposed.

Mr. Wilkerson testified that protective gowns were not given to stripped inmates because the gowns could be dampened, twisted and braided in such a way that an inmate could use the gown to hang themselves. Mr. Wilkerson stated that the gown would not be provided even for the brief periods of time during which a man was on the ward, because the gown could be used for suicidal purposes. Mr. Wilkerson conceded, however, that he did not believe that the gown could be soaked and braided and used by an inmate to hang themselves if a matron were standing in front of the person's cell while a man was in the area. In response to questioning regarding the possibility of using a gown for suicidal purposes in a cell from which all horizontal bars had been removed, Mr. Wilkerson responded that although he had...