Case 1:21-cv-00358-HYJ-RSK ECF No. 1, PageID.

1 Filed 04/30/21 Page 1 of 17

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION

THOMAS SHIMMEL, as Personal

Representative of the ESTATE OF
BENJAMIN SHIMMEL,

Plaintiff, Case No.

-vs- Hon.

MICHIGAN DEPARTMENT OF CORRECTIONS,

JOHN FARAGO, JASON SCHULTZ, LATHAM
SCHLAFLEY, CLAYTON SETZER, ANDREW
TIGHE, DANIEL JORISSEN, WILLIAM FISK,
BEN SNAY, GIDEON MITCHELL, ADDIE
BRISKE, WILLIAM DRAKE, KEVIN HALL,
DANIEL ANTES, BRIAN ROBEL, and DAVID
SAUNDERS, in their individual capacities,

Defendants.
MARKO LAW, PLLC
Jonathan R. Marko (P72450)
Attorney for Plaintiff
1300 Broadway, Fifth Floor
Detroit, MI 48226
P: (313) 777-7529 / F: (313) 771-5728
jon@markolaw.com

There is no other civil action between these parties arising out of the same
transactions or occurrences as alleged in this complaint pending in this
court, nor has any such action been previously filed and dismissed or
transferred after having been assigned to a judge, nor do I know of any
other civil action, not between these parties, arising out of the same
transaction or occurrence as alleged in this complaint that is either pending
or was previously filed and dismissed, transferred, or otherwise disposed
of after having been assigned to a judge in this court.
/s/ Jonathan R. Marko

PLAINTIFF’S COMPLAINT AND JURY DEMAND

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NOW COMES Plaintiff, Thomas Shimmel, as personal representative of the

Estate of Benjamin Shimmel, deceased, by and through her attorneys, MARKO

LAW, PLLC, and for her complaint hereby states as follows:

INTRODUCTION

1. This is a civil rights action in which Plaintiff, THOMAS SHIMMEL,

as Personal Representative for the Estate of Benjamin Shimmel, seeks relief and all

damages that flow from Defendants’ multiple violations of decedent Benjamin

Shimmel’s rights, privileges, and immunities as secured by the Eighth Amendment

to the United States Constitution, pursuant to 42 U.S.C. § 1983.

2. Benjamin Shimmel (Plaintiff) died on December 5, 2019, as a result of

Defendants’ deliberate indifference to Plaintiff’s mental health while he was

incarcerated at Oaks Correctional Facility located in Manistee, Michigan.

3. During the period leading up to December 5, 2019, Defendants owed

Benjamin Shimmel a duty to protect him from the clear and known danger of his

suicidal tendencies. Defendants’ deliberate indifference to Plaintiff’s serious suicide

risk proximately caused his death and the consequent damages to his Estate.

4. On behalf of the Estate of Benjamin Shimmel, as the Personal

Representative thereof, THOMAS SHIMMEL seeks all relief appropriate and

allowable resulting from the constitutional violations Defendants inflicted upon

Benjamin Shimmel.

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5. As part of the aforementioned relief, Plaintiff BENJAMIN SHIMMEL

seeks damages for the Estate, including any and all damages recoverable under the

Michigan Wrongful Death Act, MCL § 600.2922 and 42 U.S.C. §§ 1983 and 1988,

attorney fees and costs, and any further relief the Court deems proper.

JURISDICTION AND VENUE

6. Jurisdiction of this Court is invoked pursuant to 42 U.S.C. § 1983, and

jurisdiction is therefore proper pursuant to 28 U.S.C. § 1331.

7. Venue is proper in this District under 28 U.S.C. § 1391. The parties

reside, or at the time the events took place, resided in this judicial district, and the

events giving rise to Plaintiffs’ claims also occurred in this judicial district.

8. Defendant MICHIGAN DEPARTMENT OF CORRECTIONS

(hereinafter “MDOC”) is a governmental body of the State of Michigan, created

pursuant to the laws of the State of Michigan, which, at all relevant times,

systematically operates and conducts business within the Eastern District of

Michigan.

PARTIES

9. Plaintiff THOMAS SHIMMEL is the duly appointed Personal

Representative of the Estate of Benjamin Shimmel. He is a resident of the County of

Genesee, State of Michigan.

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10. Defendant JOHN FARAGO was an employee of the Michigan

Department of Corrections (“MDOC”) and worked as a Corrections Officer at the

Oaks Correctional Facility, which is located in the Northern Division of the Western

District of Michigan during all times relevant. He is sued in his individual capacity.

11. Defendant JASON SCHULTZ was an employee of MDOC and worked

as a Corrections Officer at the Oaks Correctional Facility, which is located in the

Northern Division of the Western District of Michigan during all times relevant. He

is sued in his individual capacity.

12. Defendant LATHAM SCHLAFLEY was an employee of MDOC and

worked as a Corrections Officer at the Oaks Correctional Facility, which is located

in the Northern Division of the Western District of Michigan during all times

relevant. He is sued in his individual capacity.

13. Defendant CLAYTON SETZER was an employee of MDOC and

worked as a Corrections Officer at the Oaks Correctional Facility, which is located

in the Northern Division of the Western District of Michigan during all times

relevant. He is sued in his individual capacity.

14. Defendant ANDREW TIGHE was an employee of MDOC and worked

as a Corrections Officer at the Oaks Correctional Facility, which is located in the

Northern Division of the Western District of Michigan during all times relevant. He

is sued in his individual capacity.

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15. Defendant DANIEL JORISSEN was an employee of MDOC and

worked as a Corrections Officer at the Oaks Correctional Facility, which is located

in the Northern Division of the Western District of Michigan during all times

relevant. He is sued in his individual capacity.

16. Defendant WILLIAM FISK was an employee of MDOC and worked

as a Corrections Officer at the Oaks Correctional Facility, which is located in the

Northern Division of the Western District of Michigan during all times relevant. He

is sued in his individual capacity.

17. Defendant BEN SNAY was an employee of MDOC and worked as a

Corrections Officer at the Oaks Correctional Facility, which is located in the Northern

Division of the Western District of Michigan during all times relevant. He is sued in

his individual capacity.

18. Defendant GIDEON MITCHELL was an employee of MDOC and

worked as a Sergeant at the Oaks Correctional Facility, which is located in the

Northern Division of the Western District of Michigan during all times relevant. He

is sued in his individual capacity.

19. Defendant ADDIE BRISKE was an employee of MDOC and worked

as a Registered Nurse at the Oaks Correctional Facility, which is located in the

Northern Division of the Western District of Michigan during all times relevant. He

is sued in his individual capacity.

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20. Defendant WILLIAM DRAKE was an employee of MDOC and

worked as a Registered Nurse at the Oaks Correctional Facility, which is located in

the Northern Division of the Western District of Michigan during all times relevant.

He is sued in his individual capacity.

21. Defendant KEVIN HALL was an employee of MDOC and worked as

a Corrections Officer at the Oaks Correctional Facility, which is located in the

Northern Division of the Western District of Michigan during all times relevant. He

is sued in his individual capacity.

22. Defendant DANIEL ANTES was an employee of MDOC and worked

as a Corrections Officer at the Oaks Correctional Facility, which is located in the

Northern Division of the Western District of Michigan during all times relevant. He

is sued in his individual capacity.

23. Defendant BRIAN ROBEL was an employee of MDOC and worked as

a Corrections Officer at the Oaks Correctional Facility, which is located in the

Northern Division of the Western District of Michigan during all times relevant. He

is sued in his individual capacity.

24. Defendant DAVID SAUNDERS was an employee of MDOC and

worked as a Corrections Officer at the Oaks Correctional Facility, which is located

in the Northern Division of the Western District of Michigan during all times

relevant. He is sued in his individual capacity.

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FACTUAL ALLEGATIONS REGARDING

THE DEATH OF BENJAMIN SHIMMEL

25. Plaintiff, by reference, incorporates the preceding paragraphs as though

fully set forth herein.

26. Benjamin Shimmel, the Decedent, was incarcerated at Oaks

Correctional Facility at the time of his tragic death on December 5, 2019. He was a

21-year-old boy at the time of his death.

27. Prior to his death, Benjamin Shimmel had four psychiatric

hospitalizations and a very long history of mental illness, including, but not limited

to bipolar disorder, panic disorder, psychosis, anxiety, depression, and addiction to

drugs and alcohol. He began experiencing symptoms of mental illness when he was

about eight-years-old when he was sexually assaulted.

28. On or about December 2, 2019, Mr. Shimmel was evaluated by MDOC

Bureau of Health Care Services because he expressed suicidal thoughts and reported

that he was hearing voices that were telling him to kill himself. During the session

he stated that he wanted to “make a shank out of a paper clip” and then began

scratching his wrist with a paperclip and a pen. He reported suicide plans such as

running to the fence so that guards would shoot him or punching someone so that he

would be beaten to death. He was placed on a moderate management plan for

observation.

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29. On or about December 3, 2019, Mr. Shimmel was reevaluated and kept

on the moderate risk plan and he was transferred from Central Michigan Correctional

Facility to St. Louis Correctional Facility for observation. He was combative and

he hit the ceiling of the showers with his open hands and knuckles, causing

abrasions.

30. On or about December 4, 2019, Oaks Correctional Facility was notified

that Plaintiff was an intermediate suicide risk pending transfer.

31. On or about December 5, 2019, Mr. Shimmel was transferred to Oaks

Corrections Facility while placed on intermediate suicide risk and he was placed in

segregation. Oaks Corrections Facility, including staff members John Farago, Jason

Schultz, Latham Schlafley, Clayton Setzer, Andrew Tighe, Daniel Jorissen, William

Fisk, Ben Snay, Gideon Mitchell, Addie Briske, William Drake, Kevin Hall, Daniel

Antes, Brian Robel, and David Saunders, had notice that Mr. Shimmel had a history

of mental health illness and that he had just reported suicidal thoughts and auditory

hallucinations telling him to kill himself three days prior. Mr. Shimmel arrived at

Oaks Corrections Facility at 3:25PM but the staff decided not to meet with him for

an evaluation until the following day.

32. Defendant Officer Farago was responsible for conducting scheduled

rounds in Housing Unit 5 B-Lower, where Mr. Shimmel was located, on December

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5, 2019. At 9:46PM, Defendant Officer Farago found Mr. Shimmel hanging from a

bed sheet secured to a sprinkler head in his cell.

33. Defendants Officers Farago, Schultz, Schlafley, Setzer, Tighe, Jorrisen,

Snay, Hall, and Fisk, Defendant Sergeant Mitchell, and Defendant Registered

Nurses Briske and Drake were responsible for the safety and wellbeing of the

inmates at Oaks Corrections Facility on December 5, 2019, when Mr. Shimmel was

left alone as a known suicide risk and committed suicide.

34. At all times relevant, Mr. Shimmel displayed a disheveled appearance,

depressed mood, discouraged attitude, poor reasoning, poor impulse control, poor

judgment, and poor insight, which Defendants Officers Farago, Schultz, Schlafley,

Setzer, Tighe, Jorrisen, Snay, Hall, and Fisk, Defendant Sergeant Mitchell, and

Defendant Registered Nurses Briske and Drake should have noticed and then

addressed his needs accordingly.

35. At all times relevant, Defendant Officers Farago, Schultz, Schlafley,

Setzer, Tighe, Jorissen, Fisk, Snay, Hall, Antes, Robel, and Saunders, Defendant

Sergeant Mitchell, and Defendant Registered Nurses Briske and Drake deprived Mr.

Shimmel of proper care and attention, despite his known suicide risk.

36. At all times relevant, Mr. Shimmel clearly exhibited extreme mental

health stressors and suicidal ideation, which Defendants Officers Farago, Schultz,

Schlafley, Setzer, Tighe, Jorrisen, Snay, Hall, and Fisk, Defendant Sergeant

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Mitchell, and Defendant Registered Nurses Briske and Drake should have

considered when leaving him alone and allowing him to commit suicide while under

their care.

37. While Mr. Shimmel was a known suicide risk, Defendants failed to

timely provide him a proper mental health examination and failed to treat and/or

help Mr. Shimmel, although they had opportunity and a duty to do so.

38. On or about December 5, 2019, Defendants Officers Farago, Schultz,

Schlafley, Setzer, Tighe, Jorrisen, Snay, Hall, and Fisk, Defendant Sergeant

Mitchell, and Defendant Registered Nurses Briske and Drake deliberately ignored,

disregarded, and/or callously refrained from addressing or treating Mr. Shimmel’s

serious medical condition.

39. Defendants Officers Farago, Schultz, Schlafley, Setzer, Tighe, Jorrisen,

Snay, Hall, and Fisk, Defendant Sergeant Mitchell, and Defendant Registered

Nurses Briske and Drake had a constitutional duty to help, assist, and/or treat Mr.

Shimmel for his deteriorating mental illness and/or to refer him to hospitalization,

as they had actual notice of Mr. Shimmel’s dire medical condition.

40. At all times relevant, Defendants Officers Farago, Schultz, Schlafley,

Setzer, Tighe, Jorrisen, Snay, Hall, and Fisk, Defendant Sergeant Mitchell, and

Defendant Registered Nurses Briske and Drake completely failed to obtain the

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necessary help and/or treatment for Mr. Shimmel despite his obvious need for

treatment.

41. Defendants’ callous reason for refusing to provide Mr. Shimmel with

the treatment he so desperately and obviously required was that Mr. Shimmel arrived

at Oaks Correctional Facility “late” at 3:25PM.

42. At all times relevant, Defendants Officers Farago, Schultz, Schlafley,

Setzer, Tighe, Jorrisen, Snay, Hall, and Fisk, Defendant Sergeant Mitchell, and

Defendant Registered Nurses Briske and Drake could have and should have

provided Mr. Shimmel with treatment and care required for inmates with known

suicidal ideation and his life could have and should have been preserved.

43. Mr. Shimmel endured mental pain and suffering for at least four days

before he ultimately succumbed to his suicidal ideation and/or the effects thereof

due to Defendants Officers Farago, Schultz, Schlafley, Setzer, Tighe, Jorrisen, Snay,

Hall, and Fisk, Defendant Sergeant Mitchell, and Defendant Registered Nurses

Briske and Drake’s deliberate indifference to his serious medical needs.

44. Plaintiff’s decedent is survived by the following: his mother, his father,

his four half siblings, and his fiancée.

COUNT I - 42 U.S.C. § 1983

VIOLATION OF THE EIGHTH AMENDMENT

45. Plaintiffs, by reference, incorporate the preceding paragraphs as though

fully set forth herein.

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46. Decedent was entitled to all rights, privileges, and immunities accorded

to all incarcerated citizens of the State of Michigan and the United States.

47. At all times relevant, Defendants were acting within the course and

scope of their employment with the State of Michigan and the Department of

Corrections and/or Oaks Correctional Facility and were acting under color of state

law with the authority granted to them as corrections officers or correctional health

care providers or Sergeants.

48. Pursuant to the Eighth Amendment of the United States Constitution,

Mr. Shimmel had a right to be free from cruel and unusual punishment while

incarcerated and under the custody and control of the State of Michigan at Oaks

Correctional Facility.

49. At all relevant times, Mr. Shimmel had a right to adequate and

sufficient mental health care and/or treatment such that his life would be preserved

and he at all times would be free from needless unjustified and preventable suffering

and deterioration of his mental health and well-being.

50. At all times, Defendants, with malice, recklessness, and/or deliberate

indifference, kept Mr. Shimmel isolated in a cell without adequate attention or

mental health care, after they were notified that he was an intermediate suicide risk

and that he had reported suicidal ideation and planning only days before. The

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aforementioned combined in whole or in part to cause pain, suffering, deterioration

of health, and ultimately the tragic death of Mr. Shimmel.

51. During the time that Mr. Shimmel’s health continued to deteriorate, the

Defendants, pursuant to the Eighth Amendment, were required to provide and/or

obtain adequate medical care for the Decedent’s obvious and serious suicide risk.

52. However, to the contrary, Defendants acted with malice, recklessness,

and/or deliberate indifference when they failed to provide or obtain any care or

treatment that was necessary to save Mr. Shimmel’s life.

53. The actions and/or omissions of the various Defendants constitute a

deliberate indifference to the serious medical needs of Mr. Shimmel and

demonstrated a reckless, willful and/or wanton disregard for the health and safety of

Mr. Shimmel in violation of the Eighth Amendment.

54. As a direct and proximate result of the actions and/or omissions of the

various Defendants, Mr. Shimmel suffered great pain, emotional distress, suffering,

and early death.

55. As a direct and proximate result of the actions and/or omissions of the

various Defendants, the Estate has sustained and is entitled to compensation for

conscious pain and suffering of the deceased during the period intervening between

the time of the injury and death, funeral and burial expenses, damages for the loss of

financial support and loss of society and companionship of the deceased.

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56. Mr. Shimmel is survived by one or more persons eligible to recover

damages under the Wrongful Death Act.

57. By the aforementioned actions and/or omissions, Defendants have

deprived Mr. Shimmel of the rights secured by the Eighth Amendment to the United

States Constitution.

COUNT II - AMERICANS WITH DISABILITIES ACT (ADA)

VIOLATION – FAILURE TO ACCOMMODATE
As to Defendant MDOC

58. Plaintiff hereby incorporates by reference the preceding paragraphs as

though fully stated herein.

59. At all times relevant hereto, Mr. Shimmel was an individual and

Defendant’s jail was a public service within the meaning of the Americans with

Disabilities Act (“ADA”), being 42 USC §12131, et seq.

60. At all times relevant hereto, Mr. Shimmel was a person with a disability

in accordance with the ADA.

61. Mr. Shimmel was an individual with a disability in accordance with the

ADA, in that he had a mental impairment that substantially limited one or more of

his major life activities.

62. Mr. Shimmel’s disability was a major depressive disorder, suicidal

ideation, and other psychological disorders.

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63. At all times relevant hereto, Defendant had a duty under the ADA to

accommodate Mr. Shimmel unless the accommodation would impose an undue

hardship. Defendant’s duty to accommodate Mr. Shimmel includes, but is not

limited to, providing him with ongoing adequate medical and mental health care,

and when he threatened to commit suicide, transferring him to a safe location and

properly supervising and monitoring him.

64. At all times relevant hereto, Defendant could have accommodated Mr.

Shimmel’s disability without suffering an undue hardship.

65. As a direct and proximate result of Defendant’s disability

discrimination, Mr. Shimmel has suffered mental anguish, emotional distress,

outrage, fear of impending death, death, and all other damages or consequences

related to the incidents set forth above.

COUNT III - VIOLATION OF §504 OF THE

REHABILITATION ACT OF 1973
As to Defendant MDOC

66. Plaintiff hereby incorporates by reference the preceding paragraphs as

though fully stated herein.

67. Discrimination on the basis of disability is prohibited by §504 of the

Rehabilitation Act, 29 U.S.C. §794(a), which provides:

No otherwise qualified individual with a disability in the

United States . . . shall, solely by reason of her or his
disability, be excluded from the participation in, be denied

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the benefits of, or be subjected to discrimination under any

program or activity receiving Federal financial assistance.

68. “States waive their Eleventh Amendment immunity with regard to

Rehabilitation Act claims when they accept federal funds, and therefore, a Plaintiff

may sue a state under §504 of the Rehabilitation Act.” Dillon-Barber v. Regents of

the Univ. of Mich., No. 250596, 2005 Mich. App. LEXIS 1400, at *13 (Ct. App.

June 7, 2005). (Citing Nihiser v. Ohio EPA, 269 F.3d 626 (6th Cir. 2001)).

69. Defendant MDOC receives federal financial assistance and as such is

subject to §504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a), and the federal

regulations promulgated thereunder.

70. Plaintiff is an individual with a disability under the Rehabilitation Act.

71. The conduct previously alleged violates §504 of the Rehabilitation Act

72. The foregoing violations of the Rehabilitation Act caused substantial

damages to Plaintiff as alleged herein, including his psychological suffering and

death.

73. Defendant’s acts and/or omissions proximately caused these injuries.

WHEREFORE Plaintiff respectfully requests compensatory non-economic

and economic damages, including but not limited to all damages recoverable under

the United States Constitution and/or 42 U.S.C. § 1983 and/or 28 U.S.C. § 794

and/or the laws of the State of Michigan, including, but not limited to the Michigan

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Wrongful Death Act, punitive damages, reasonable attorney fees, costs and interest,

and such other relief as appears reasonable and just under the circumstances.

Respectfully submitted,

/s/ Jonathan R. Marko

Jonathan R. Marko (P72450)
MARKO LAW, PLLC
1300 Broadway Street, Fifth Floor
Detroit, MI 48226
P: (313) 777-7529 / F: (313) 777-5785
Dated: April 30, 2021 Email: jon@markolaw.com

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