Rushing v. Wayne County
| Citation | 138 Mich.App. 121,358 N.W.2d 904 |
| Decision Date | 06 December 1984 |
| Docket Number | Docket No. 61678 |
| 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 | Court of Appeal of Michigan (US) |
Becker & VanCleef by Frank G. Becker and Arthur Greenstone, Dearborn, for plaintiff-appellant.
Edward L. Douglas, Acting Corp. Counsel, and John J. McCann and Richard A. Kudla, Asst. Corp. Counsels, Detroit, for defendants-appellees.
Before V.J. BRENNAN, P.J., and CYNAR and SIMON, * JJ.
Plaintiff appeals as of right from a jury verdict in favor of all defendants and a partial directed verdict in favor of defendant county in which plaintiff's intentional tort and 42 U.S.C. Sec. 1983 claims were dismissed.
In her amended complaint, plaintiff alleged that, while she was detained in the Wayne County Jail, on the charge of obstruction of justice, defendants Kim and Lebedevitch, while acting in their positions of authority as employees of Wayne County, forced her to remain disrobed in her cell for several days, "unclothed except for underclothing". Furthermore, plaintiff alleged that defendants denied plaintiff her customary dosage of medication for her epileptic condition while she was confined in jail. Plaintiff brought this action, claiming that, by their conduct, defendants Kim, a psychologist, and Lebedevitch, a psychiatrist, intentionally inflicted emotional distress upon her.
In addition, plaintiff alleged that, while she was unclothed and in her cell, she was viewed by several male employees of the Wayne County Sheriff's Department and that defendant Wayne County had also intentionally inflicted emotional harm. In count II of her complaint, plaintiff alleged a violation of 42 U.S.C. Sec. 1983, and claimed that defendants' conduct violated her constitutional rights, including the protected right of privacy. In a "clarified" second amended complaint, plaintiff alleged a violation by defendant Wayne County of the "building defect" exception to the governmental immunity statute. M.C.L. Sec. 691.1406; M.S.A. Sec. 3.996(106).
At the time of plaintiff's detainment, the Wayne County Jail was subject to a circuit court order which required the jail staff to remove clothing from an inmate who exhibited suicidal tendencies. The order further provided that when clothing was so removed "the advice of persons with psychiatric training must be promptly sought respecting the return of some or all of such articles and implements".
Plaintiff was incarcerated in the Wayne County Jail from June 8 to June 12, 1976. At trial, John Nicholl, a social investigator whose duties included processing and counseling inmates at the jail, testified that he was employed by defendant county. On June 9, 1976, he received a telephone call from a person purporting to be plaintiff's sister who informed him that plaintiff threatened suicide. Nicholl relayed this information to personnel on the floor on which plaintiff was housed, the doctor's office, and defendants Lebedevitch and Kim.
Defendant Kim testified that his main duties involved the diagnostic evaluation of the mentally ill and suicidal individuals. After Nicholl informed Kim about the phone call, Kim ordered plaintiff to be stripped of all clothing except her panties pursuant to the mandates of the circuit court order. He then went to the wing where plaintiff was housed to examine her to determine if plaintiff was suicidal. Kim spoke with plaintiff through the bars of her cell. At the time of that conversation, plaintiff was nude except for her panties. Although he did not think plaintiff was psychotic, Kim felt that she was suicidal because of threats she made. The plaintiff did tell Kim that she was an epileptic who needed Dilantin, and Kim gave this information to defendant Lebedevitch.
Kim further testified that, "for safety precautions", plaintiff remained unclothed except for her panties during her entire confinement for the observation of her behavior. Other than his initial visit, Kim did not visit plaintiff at any other time. Furthermore, Kim did not know if plaintiff ever received her Dilantin. Kim also testified that there was no further reason for either defendant Lebedevitch or him to see plaintiff because the reports from other personnel indicated that she had been adjusting. He had no knowledge about a janitor or a group of students who observed plaintiff.
Plaintiff testified that she was ordered to disrobe by a male deputy. Both the male deputy and a female deputy were present when plaintiff removed her dress and bra. The female deputy explained to plaintiff that she had to disrobe because she was supposed to be a suicide case. According to plaintiff, she was taken from her cell to see a doctor. Plaintiff then spoke with defendant Kim, who did not ask her if she was suicidal. Plaintiff testified that she was not suicidal. Kim did tell plaintiff that she could have her clothing back when she returned to her cell. However, her clothing was not returned.
Plaintiff stated that several times during her confinement a male custodian stood outside her cell and stared. She also testified that on one occasion, the custodian watched and whistled at her as she readied herself to use the bathroom. Plaintiff attempted to shield herself from his view by covering her bare chest with her arms. On another occasion, in defendant Kim's presence, a group of 10 or 12 men observed her. Plaintiff testified that Kim just looked at her and laughed.
Plaintiff stated that she was given Dilantin on her first evening in jail and, on the following day, she was given Dilantin and Tylenol. However, during her third day of confinement, plaintiff was not given her medication. Plaintiff also testified that after her interview with defendant Kim, she received no other visits from any social worker or psychologist.
Beverly Wagner, who was detained in a cell just two doors from plaintiff's cell, testified that, after plaintiff was stripped, women inmates, deputies, medical personnel and a custodian walked by plaintiff's cell. Wagner testified that the custodian was present every morning and that she had chastised him for staring at the plaintiff as she stood with her back to the custodian while trying to shield herself from his view. Wagner also stated that, on the third day of plaintiff's confinement, the custodian stood by plaintiff's cell and whistled at her, and Wagner corroborated plaintiff's testimony about the group of men who observed plaintiff.
Several of plaintiff's relatives testified about the metamorphosis in both plaintiff's appearance and personality which had coincided with her jail experience.
Dr. Lawrence Cantow, plaintiff's psychiatrist, testified that, as a result of plaintiff's jail experience, she had feelings of humiliation, degradation, and unworthiness. Plaintiff first visited this witness in November, 1980. He diagnosed her condition as a chronic psychotic depressive reaction. He had prescribed antipsychotic and antidepressive medication for her, and he confirmed that plaintiff had been a potential suicidal patient during her stay in jail. In his opinion, plaintiff should have been given psychiatric treatment and antipsychotic medication while she was in jail. He also opined that, if her condition had been promptly recognized and treated, plaintiff would not have been psychotic for the five year period following her confinement in jail.
Plaintiff introduced expert testimony on the standard of practice in dealing with suicidal jail inmates. Jerome Gallagher, a psychologist and Director of Mental Health Services at the Ingham County Jail testified that, if an inmate's clothing was taken away, jail personnel should house the inmate in an isolated area where the inmate was "not visible to the mainstream of jail activity". Gallagher maintained that Kim had committed malpractice by not seeing plaintiff after his initial visit. As for the question of medication, he stated that the physician had to assume the responsibility for the medical issue. The trial court noted for the record that this witness was not acquainted with large jails and that fact could be considered by the jury in evaluating the weight to be given to Gallagher's testimony.
Frank Donley, a facilities inspector for the Michigan Department of Corrections, testified that, when an inmate had to be stripped, the inmate was usually placed in a single cell away from the general housing unit, but the inmate should be kept under continuous observation.
The Wayne County Jail Administrator, Frank Wilkerson, testified that defendants Kim and Lebedevitch worked under his supervision, and he agreed that custodians and other personnel who work in the jail are Wayne County employees.
Dr. David Gendernalyk, a psychiatrist who evaluated plaintiff on defendants' behalf, testified that plaintiff was not suffering from a psychosis. He did not think she was a chronic psychotic depressive. Rather, in his opinion, she had lifelong personality problems and he characterized her personality as masochistic. Furthermore, he opined that plaintiff was not psychotic in jail because, if she had been, none of the events which allegedly took place would have "registered". Plaintiff would not have been aware of what went on. He also did not see a "close fit" between plaintiff's bad dreams symptomology and her jail experiences.
Sgt. M.A. Clipper, a female deputy assigned to the women's division, testified that the only people who would have stripped plaintiff would have been female deputies. If a male deputy had stripped plaintiff, it would have been a departure from standard procedure and wrong.
Plaintiff first claims that the trial court erred by granting a directed verdict of dismissal in favor of Wayne County on the issue of intentional infliction of emotional...
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