Opinion
No. X04 CV 02 0103313 S
January 16, 2007
MEMORANDUM OF DECISION
The plaintiff's decedent, Michael Newlan ("Newlan"), hanged himself at the Corrigan Correctional Center on March 14, 2002, at about 6:30 p.m. Though measures were taken to prolong life when he was found, life support was discontinued approximately two days later and Newlan regrettably passed away. The administratrix of his estate, Nancy Newlan, received permission from the claims commissioner to pursue an action in negligence against the state; seven additional counts were added to the resulting complaint. The additional counts allege constitutional violations and violations of the patients' bill of rights. The defendants have filed a motion for summary judgment (#136) as to all but the original negligence count; the motion also seeks summary judgment in the defendants' favor on the defense of qualified immunity. Both sides have most thoroughly briefed the issues and have presented rather massive amounts of documentary evidence and affidavits in support of their respective positions. Specific facts will be presented in the course of discussing various issues; suffice it to say at this point that the plaintiff claims that the various defendants acted with deliberate indifference to the decedent's mental and, to a degree, physical condition, thus allowing him to end his life and violating his substantive due process rights. The state claims that there is no genuine issue of fact as to the issues of deliberate indifference, as that term has been defined and applied, and qualified immunity; and that summary judgment should enter in favor of the defendants on all but the first count.
Oral argument was held on July 5, 2006, but the latest brief was filed on September 20, 2006. The one hundred twenty-day time period, then, expires on January 18, 2007. This decision, though not filed very speedily, is at least timely under the rules. See, e.g., § 11-19 of the Practice Book.
Counts six, seven and eight allege violations of General Statutes §§ 17a-542 and 17a-545. Subsequent to the filing of the amended complaints, our Supreme Court held that the "patients' bill of rights," General Statutes §§ 17a-540 et seq., does not apply to correctional institutions. Wiseman v. Armstrong, 269 Conn. 802 (2004). The plaintiff responsibly briefed and argued the position that although this court was bound by Wiseman, she wished to preserve her position for possible appeal. I will grant summary judgment as to counts six, seven and eight accordingly, as I am so bound.
I. BACKGROUND
The factual framework is not subject to dispute. Michael Newlan lived a troubled life. Twenty-nine at the time of his demise, he had been in an automobile accident in 1990 when he was eighteen. He suffered a traumatic brain injury as a result. He incurred difficulties with judgment and depression; he became dependent on various drugs and alcohol. Prior to and entering into his last incarceration, he was dependent on methadone. He had been incarcerated on several other occasions, including once in Corrigan. He had been admitted to Cedarcrest and Rushford. He had attempted to take his life in the past — although the last attempt was apparently about two years before the incarceration in question.
On March 7, 2002, Newlan was arrested for several drug-related offenses, including sale of a controlled substance. He either injured himself or was injured by police at about the time of his arrest and was treated at Lawrence and Memorial Hospital in New London. At his arraignment on March 8, bail was set and he was sent as a pretrial detainee to Corrigan Correctional Institution ("Corrigan"). A medical watch — though not a suicide watch — was suggested by the court at the time of arraignment. His next court date was scheduled to be March 25, 2002.
Corrections personnel began intake procedures on March 8. Newlan was reasonably forthcoming about his history with drugs and attempted suicide. He said he was worried about a puppy in his apartment, but later conversation with his mother confirmed that the animal was a ferret rather than a puppy and that his mother had the ferret. He was placed on "Q15" status, which was a code for suicide watch. He was continued on suicide watch after a conversation with his mother, who emphasized his history of suicide attempts and suggested that he was not always especially truthful. The suicide watch was maintained in the infirmary setting.
On Monday, March 11, he was evaluated by Arlene Raymond, a psychiatric nurse. Her evaluation consisted primarily of reviewing all of the previous history and interviewing Newlan. He wished to be released from the suicide watch regimen so that he could have more privileges and a less restrained environment. She reviewed the situation with Dr. Berkowitz, a psychiatrist, and discontinued the suicide watch. Newlan remained in the infirmary, but the watch was less rigorous and he was given sneakers with shoelaces. On Tuesday, March 12, he was interviewed by Dr. Kohanski, a psychiatrist. She prescribed IV treatment for dehydration and continued the medications Vistaril and Ativan for alleviation of withdrawal symptoms. She prescribed Clonidine, which arrived the next day. His conditions of confinement were continued unchanged.
He continued with detoxification and some of the usual withdrawal symptoms were noted. He never in the course of his incarceration showed any inclination to commit suicide and, for what it was worth, denied present suicidal ideation. He looked forward to his next court date, when he hoped he would be released. In the early evening of March 14, however, he was found in his infirmary cell in an awkward position. He had threaded a shoelace through narrow openings in a ventilation grate and had hanged himself. A nurse attended to him and called for help. Though some vital signs were restored, he was never restored to consciousness.
II. ALLEGATIONS OF THE COMPLATNT
With the foregoing facts as a background, the plaintiff has asserted eight counts in the operative complaint dated June 10, 2003. The first sounds in professional negligence and is brought by the plaintiff administratrix against the following defendants:
a) John Armstrong. Mr. Armstrong was at all relevant times the commissioner of the Connecticut Department of Corrections ("department") and is not alleged to have any personal involvement with Newlan's treatment or incarceration.
b) Connecticut Department of Corrections.
c) Patricia Ottolini. Ms. Ottolini is alleged to have been the director of health, mental health and addiction services for the department and thus responsible in a global sense for Newlan's treatment.
d) Edward Blanchette. Dr. Blanchette is alleged to have been director of clinical services for the department.
e) University of Connecticut Health Center is alleged to have been responsible for providing medical and psychiatric care to inmates of the department.
f) Robert Trestman was director of mental health with the University of Connecticut Health Center.
g) Corrigan Correctional Institution is the facility in which Newlan was incarcerated.
h) John Tarascio was allegedly the warden of Corrigan. It appears undisputed that he was not in fact the warden at the time of the incident forming the basis of the complaint.
i) Jay Berkowitz. Dr. Berkowitz is a psychiatrist employed by the department. Dr. Berkowitz approved Newlan's transfer from suicide watch. j) Arlene Raymond. Ms. Raymond is the registered psychiatric nurse employed by the department who recommended that Newlan be transferred from suicide watch.
k) Glen Shea is the registered nurse on duty at the time Newlan committed suicide. He discovered Newlan had hanged himself.
l) Ninnette Barile is a social worker employed by the department who provided care to Newlan and who performed intake activity during the first period of Newlan's incarceration.
The count alleges that the people who initially screened Newlan became aware of his prior traumatic brain injury, his methadone maintenance program and his history of suicide attempts. They knew he was experiencing withdrawal symptoms while at Corrigan. The complaint alleges that the personnel knew or should have known that these factors significantly increased the likelihood that Newlan would again attempt suicide. Newlan attempted suicide on March 14 by asphyxiation with a shoelace threaded through a grate in his cell in the medical ward. The complaint alleges that methadone treatment was discontinued over the course of his six days of incarceration and that he was taken off suicide watch. Subsequent to the suicide effort, Newlan was transported to Backus Hospital, where he was taken off life support and expired on March 17.
The count alleges that Newlan's death was proximately caused by "the prison's medical personnel" in nine ways: failure to recognize him as suicidal despite clear indications; failure to diagnose depression and "immediate" risk of committing suicide; failure to treat mental illness and drug addiction; failure to maintain the suicide watch and to provide adequate psychiatric care; failure to prescribe medication properly; failure to refer Newlan to an appropriate mental health facility; failure to refer Newlan to a psychiatrist; failure to provide adequate mental health and medical care; and failure to have proper procedures in place to ensure that employees were aware of Newlan's "suicidal intentions" during his incarceration.
Damages for wrongful death are claimed, and it is certified that the claims commissioner granted the plaintiff permission to sue the state.
The negligence count is not the subject of the instant motion, and in the course of discussing the remaining counts I intend to offer no comment or opinion as to the merits of the negligence count. The remaining counts incorporate many of the allegations of the first count and the underlying transactions are of course relevant to all of the counts.
The second count is brought specifically against the defendants Berkowitz (psychiatrist), Kohanski (psychiatrist), Raymond (psychiatric nurse), Shea (nurse) and Barile (social worker) in their individual capacites. These are medical and service providers who directly cared for Newlan, or, in the case of Berkowitz, directly advised as to conditions of confinement and care. The count alleges that they violated Newlan's rights under the Eighth and Fourteenth Amendments to the United States Constitution by failing to provide constitutionally adequate medical care and supervision, by knowingly disregarding an excessive risk to Newlan's health and safety and knowingly subjecting him to pain, injury and death. The count is labeled "deliberate indifference."
The third count is brought against Armstrong, Ottolini, Trestman, Tarascio and Blanchette in their individual capacities. Though none of these individuals are alleged to have provided care directly to Newlan, it is alleged that they "participated directly" in the decision to deny Newlan needed treatment, failed to remedy improper care, created and perpetuated policies and customs whereby inmates such as Newlan would be deprived of adequate care, were deliberately indifferent in the supervision and training of people who provided direct care and committed the allegedly wrongful acts, and deliberately indifferent by failing to respond to information that substandard care was being provided and that "other unconstitutional and harmful acts were occurring." The claim is that by failing to provide constitutionally adequate care, these defendants knowingly disregarded an excessive risk to health and safety and violated his rights under the Eighth and Fourteenth Amendments to the United States Constitution.
The fourth count alleges that Berkowitz, Kohanski, Raymond, Shea and Barile acted with deliberate indifference to Newlan's safety by removing him from the suicide watch and returning clothing, including shoelaces and knowingly disregarded an excessive risk to Newlan's health and safety and knowingly failed to protect him from harm, in violation of the Eighth and Fourteenth Amendments to the United States Constitution.
The fifth count alleges, as to all the individually named defendants, the same cause of action alleged in the fourth count. It the title of the count "supervisory liability" is mentioned; it is possible that the defendants Berkowitz, Kohanski, Raymond, Shea and Barile were inadvertently included in this count.
The sixth, seventh and eighth counts allege violations of the "patients' bill of rights," as noted above, and in light of Wiseman v. Armstrong, supra, summary judgment is granted as to these counts. No further discussion of these counts is necessary.
III. SUMMARY JUDGMENT STANDARDS
Summary judgment "shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." LaFlamme v. Dallessio, 261 Conn. 247, 250 (2002); Practice Book § 17-49. The party moving for summary judgment bears the burden of proving the absence of a genuine dispute as to any material fact; and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. "Equally well settled is that the trial court does not sit as the trier of fact when ruling on a motion for summary judgment . . . [T]he trial court's function is not to decide issues of material fact but rather to determine whether any such issues exist." (Citations omitted; internal quotation marks omitted.) Field v. Kearns, 43 Conn.App. 265, 269-70, cert. denied, 239 Conn. 942 (1996). "To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." Witt v. St. Vincent's Medical Center, 252 Conn. 363, 373 n. 7 (2000); D.H.R. Construction Company v. Donnelly, 180 Conn. 430, 434 (1980). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. The test is whether a party would be entitled to a directed verdict on the same facts. Sherwood v. Danbury Hospital, 252 Conn. 193, 201 (2001); Serrano v. Burns, 248 Conn. 419, 424 (1999); Forte v. Citicorp Mortgage, Inc., 66 Conn.App. 475 (2000). In Connecticut, "[a] trial court should direct a verdict for a defendant if, viewing the evidence in the light most favorable to the plaintiff, [the trier of fact] could not reasonably and legally reach any other conclusion than that the defendant is entitled to prevail." (Internal quotation marks omitted.) Colombo v. Stop Shop Supermarket Co., 67 Conn.App. 62, 64 (2001), cert. denied, 259 Conn. 912 (2002).
IV. DELIBERATE INDIFFERENCE
Prior to a detailed discussion of the facts as they may pertain to each individual, it may be useful to discuss the standards to be used in evaluating the facts. The counts under consideration allege violation of the Eighth and Fourteenth Amendments to the United States Constitution in providing constitutionally inadequate care and supervision. The constitution requires that a governmental organization meet a certain level of conduct in dealing with individuals. The Eighth Amendment prohibits "cruel and unusual punishment"; the standard applies to convicted prisoners. Farmer v. Brennan, 511 U.S. 825 (1994). An individual acting on behalf of the state is liable to a prisoner if he causes harm to the prisoner by acting with "deliberate indifference" to the prisoner's health or safety. Id., 834-35. The Eighth Amendment applies as well to the provision of medical care: prisoners may not constitutionally be deprived of medical care through the deliberate indifference of the jailers. Estelle v. Gamble, 429 U.S. 97 (1976). It may be important to note in this context, though, that not all negligence is actionable as a constitutional violation:
The first step in the analysis, considered before the question of deliberate indifference, is the issue of whether the risk of harm is "sufficiently serious" to receive constitutional protection. Farmer, supra, 834. The defendants have not taken issue with this requirement, and I hold, as have a number of other cases considering the question, that a suicide, and substantial risk of suicide, are sufficiently serious.
Similarly, in the medical context, an inadvertent failure to provide adequate medical care cannot be said to constitute "an unnecessary and wanton infliction of pain" or to be "repugnant to the conscience of mankind." Thus, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend "evolving standards of decency" in violation of the Eighth Amendment.
Estelle, supra, 105-06 (footnote omitted).
Though the Eighth Amendment does not apply to pretrial detainees, every court recently addressing the issue has suggested that the Due Process Clause of the Fourteenth Amendment provides to pretrial detainees at least equal protection to that accorded convicted prisoners. See, e.g., Weyant v. Okst, 101 F.3d 845, 846 (2d. Cir. 1996).
"Deliberate indifference" is to be applied according to a subjective standard. Farmer v. Brennan, supra. The mental state required for deliberate indifference is greater than negligence and less than the intentional infliction of harm. Id., 835. An individual is not liable "unless the official knows of and disregards an excessive risk to inmate health and safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of harm exists, and he must also draw the inference." Id., 837. In sum, the official must actually be aware of a substantial risk and consciously disregard that risk in order to be liable. Id., 838-39. Additionally, "[p]rison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not avoided." Id., 844-45.
An Eighth Amendment violation — and, by extension, a substantive due process violation — necessarily implies a governmental abuse. For there to be a constitutional violation, there must be a serious enough rift in the governmental balance to demand redress. Not every instance of governmental misfeasance, as noted in Estelle, supra, for example, requires correction imposed by the judicial branch upon the taxpayers. Our Supreme Court explained the workings of "deliberate indifference," albeit in a somewhat different context, in Aselton v. East Hartford, 277 Conn. 120, 147-48 (2006):
The meaning of deliberate indifference, in the context of state created danger, post Collins and Lewis, sets forth a stringent standard. It has been described as "equivalent to the concept of recklessness utilized in the criminal [context] . . . [requiring] that the [actor] have an actual, subjective appreciation of an excessive risk of serious harm to [the victim's] health or safety and that [the actor] `consciously disregard[ed]' that risk." [Citation omitted.] Schieber v. Philadelphia, supra, 320 F.3d 421; accord Kennedy v. Ridgefield, 411 F.3d 1134, 1143 (9th Cir. 2005) ("[d]eliberate indifference is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his actions" [internal quotation marks omitted]); Beltran v. El Paso, supra, 367 F.3d 307 ("[d]eliberate indifference requires that the state actor both knew of and disregarded an excessive risk to the victim's health and safety"); Phelps v. Kapnolas, 308 F.3d 180, 185-86 (2d Cir. 2002) (same); Sutton v. Utah State School for the Deaf Blind, 173 F.3d 1226, 1238 (10th Cir. 1999) ("[The] plaintiff-appellant's § 1983 claim must rest on a showing of reckless conduct on the part of [the defendant]. We have said that an `act is reckless when it reflects a wanton or obdurate disregard or complete indifference to risk,' and that reckless intent is established if the state `actor was aware of a known or obvious risk that was so great that it was highly probable that serious harm would follow and he or she proceeded in conscious and unreasonable disregard of the consequences.' "). Thus, the defendants cannot be held liable for merely appreciating a possibility of a risk of harm; they must have consciously disregarded that risk. Schieber v. Philadelphia, supra, 417.
In order for one to be found liable for having treated one in her care with deliberate indifference, then, she must be found to have actually known of an excessive, or at least substantial, risk of harm to the other's health or safety and to have consciously disregarded that risk. Even if the risk of harm is appreciated, there will not be liability if the conduct was, nonetheless, objectively reasonable.
V. APPLICATION OF DELIBERATE INDIFFERENCE STANDARD
A significant body of case law has arisen from situations where people in custody have committed suicide or otherwise been denied allegedly inappropriate care. In this context, suicide has sometimes been presented as a consequence of denial of adequate mental health care. Cases frequently have been resolved on summary judgment. An examination of the case law reveals that it is sometimes difficult to discover bright lines that separate the granting of summary judgment from the denial of summary judgment: the inquiry is quite fact-dependent. Additionally, the issue occasionally arises in the context of the qualified immunity defense, in which the inquiry is whether the facts alleged, if true, support the finding of a constitutional deprivation and whether, if so, the right which was allegedly violated was clearly established such that the defendant(s), in the factual situation presented, should have been aware that they were violating a right. It may nonetheless be informative to review several of the cases both granting and denying summary judgment in order to discover what sorts of facts have been considered important.
In Martin v. Somerset County, 387 F.Sup.2d 65 (D.Me. 2005), the deceased was known to have a history of attempted suicides. When admitted, he was evaluated as suicidal and in fact told people he was suicidal. He was transferred to a psychiatric hospital, where he told people he had attempted suicide earlier in the day. Three days later, the staff thought he was better and he was returned to the general population of the prison, where he was assaulted. He was then placed in a holding cell, apparently a "drunk tank," on close watch status. At least one officer thought he had been returned from the hospital too soon. The shades were down in the holding cell; the prescribed practice for those on close watch was to keep shades raised so that the prisoner could be observed. There was evidence on which a finder of fact could find that the jail didn't follow its own procedures: not only were the shades drawn but the deceased apparently was not observed for two hours and thirty-nine minutes, though regulations called for fifteen-minute checks. He was found deceased. The court held that there was evidence on which a finder of fact could find deliberate indifference, in that there was evidence that the facility did not follow its own rules with regard to potentially suicidal inmates.
In Cavalieri v. Shepard, 321 F.3d 616 (7th Cir. 2003), the plaintiff was in a vegetative state following a suicide attempt. The plaintiff had threatened to kill his former girl friend and himself prior to his arrest; his mother told police of his fragile mental state and of his history of prior suicide attempts. The police, on his arrest, nonetheless thought that he was calming down. He asked to speak to a mental health counselor, and was promised that he would be able to do so. He was placed in a holding cell and asphyxiated himself with a telephone cord before a counselor was provided. Because there was evidence on which it could be found that the police could have been aware that the plaintiff was on the verge of committing suicide, summary judgment was denied.
In Coleman v. Parkman, 349 F.3d 534 (8th Cir. 2003), a suicide victim had acted bizarrely before his arrest and told police that he had contemplated suicide the day before. On arrest, he was placed in a "drunk tank" with exposed bars and he was provided bedding with sheets. He was left unobserved for twelve minutes and hanged himself with a sheet. Qualified immunity was denied: where the jailer may have known of the immediate risk of suicide, provided a sheet and left him unobserved, deliberate indifference could be inferred.
Chance v. Armstrong, 143 F.3d 698 (2d Cir. 1998), involves a claim of deliberate indifference in the dental context. The Second Circuit discussed the standards for deliberate indifference, to wit, that an alleged constitutional deprivation be "sufficiently serious," and that the state of mind must be sufficiently culpable: the defendant, in order to be liable, must know of and disregard an excessive risk. He must be aware of facts from which the knowledge could be inferred and must actually make the inference. There must be a conscious disregard of the risk. Here, there were facts alleged from which it could be inferred that a less beneficial treatment mode was knowingly chosen because of financial considerations, and thus there could be deliberate indifference.
In Guglielmoni v. Alexander, 583 F.Sup. 821 (D.Conn. 1984), an inmate was sentenced to one year of imprisonment on May 22, 1979. On August 30, 1979, he was found attempting to hang himself with a shoelace, but unharmed. He was referred to a psychiatrist, who found the inmate manipulative and not suicidal; he returned him to the general population. On October 30, 1979, he was again found hanged, this time by a bedsheet. The psychiatrist again found the inmate only manipulative and not actually suicidal, and returned him to the general population. On November 3, the inmate finally succeeded in committing suicide by hanging himself with a shoelace from a light fixture. The court held — pre- Farmer — that in order to find deliberate indifference a plaintiff needs to show a "strong likelihood" of harm if action were not taken. Id., 826. Because effectively ignoring a series of attempts may tend to show deliberate indifference, and because in this case there may have been tampering with records, facts were alleged which, if proved, may show deliberate indifference.
Several of the cases discussed in this decision were decided in the context of qualified immunity rather than summary judgment. I will discuss qualified immunity later in this decision. At this point suffice it to say that an official may be entitled to qualified immunity if the facts alleged in the complaint, if true, do not show the deprivation of a constitutionally protected right (or, even if they do show such a violation, the official is still entitled to immunity if the right was not clearly established at the time). The legal discussion of whether alleged facts state a constitutional cause of action involves the same principles as the consideration of whether facts established in materials submitted with a motion for summary judgment state a constitutional cause of action. Though the method of establishing the underlying facts is different, the application of law to the facts is the same.
In Robey v. Chester County, 946 F.Sup. 333 (E.D. Pa. 1996), the deceased was arrested on January 1, 1994, and attempted suicide at the time of arrest. He was transferred to a medical center for observation. He saw a psychologist and was on suicide watch from January 5 to January 10. His mother asked that a counselor see the inmate, but it was unclear whether he was seen. On February 26 he hanged himself. Summary judgment was granted in favor of the defendant counselor, because the counselor did not know of the prior suicide attempt. Summary judgment was not granted in favor of the defendant psychologist, because there was no reason apparent in the record for discontinuing the suicide watch and there was evidence that he "brushed off" a "cry for help" with a broken promise of an appointment. Id., 337. An actual attempt followed by perhaps ignoring requests for medical attention could show that the psychologist had a deliberately indifferent state of mind.
In Comstock v. McCrary, 273 F.3d 693 (6th Cir. 2001), a psychologist, a medical doctor and a physician's assistant were defendants in a case alleging deliberately indifferent treatment of a suicide. The psychologist saw the decedent on March 2, 1995, when the decedent was despondent and expressed suicidal ideation. He was placed on suicide watch. On March 3, the physician's assistant saw him and found he was well, but feared being labeled a "snitch." On the same day he saw the psychologist again and reported that he was not suicidal. The psychologist took him at his word, although (apparently) he may have felt that the decedent was suicidal. The decedent was sent back into the general population and committed suicide the same day. On the facts alleged, the court decided that the psychologist "could" be liable if he believed at the beginning of a cursory conversation that the decedent was suicidal; he also had knowledge that the decedent was not on good terms with the population into which he was being released. Id., 704-05.
Comstock is instructive partly because of its analysis. Even if the psychologist knew that there was a risk of suicide, he would not be liable if he had acted reasonably, that is, if he had not failed to treat the decedent or to do that which his training indicated was necessary. The court noted that when he sent the decedent back, the psychologist did not 1) review previous tests; 2) review medical records or prison records, which indicated that the deceased had been labeled a snitch; 3) speak to the officer who referred the decedent for consultation with the psychologist; 4) speak with guards who observed the decedent; 5) check for entries in the chart showing difficulties; or 6) speak with two other psychologists who had met with the deceased. Id., 706. He recognized that a prisoner might lie. The court held that the failure to conduct any investigation, when the inmate might be lying, tends to show reckless disregard for the welfare of the inmate. If the facts were so, then the psychologist did not make a rational choice among alternatives but rather made no "reasoned assessment of the patient's suicide risk." Id., 710. The case continued on against the psychologist. But summary judgment was granted in favor of the medical doctor and the physician's assistant because they had no personal involvement in the decision to return the inmate to the general population. Id., 712.
The cases mentioned above give a representative flavor of the cases in which summary judgment was denied. There are also a great number of cases in which summary judgment was granted.
In Pelletier v. Magnusson, 201 F.Sup.2d 148 (D.Me. 2002), for example, the decedent hanged himself with a belt on October 3, 1998. There were at the facility different levels of housing for people with different mental health difficulties. A team reviewed the decedent's records on his admission to the facility and developed a treatment plan. He was transferred to the mental health unit on August 2, 1998, with a history of severe mental health illness with paranoia and delusions. He was seen by a psychiatrist, and when signs of self-destructiveness were apparent, he was moved to acute care. When he acted better and said he was better, he was sent to a less restrictive sub-acute environment. Id., 155-56.
By September 8 he showed symptoms of self-destructiveness again, but he was not placed on the list of patients to be seen by the doctor because, although he was still hearing voices and appeared agitated, he was reported doing better. On September 20 he was returned to a "stabilization corridor" and on September 28 attended group therapy. He was still hearing voices. A doctor thought the environment in the acute corridor was "inhumane." Outside of acute suicide watch, he committed suicide on October 3.
The court discussed the standards for liability as established by Farmer. The "sufficiently serious" element was certainly met. The issue was whether the subjective standard for the mental state of deliberate indifference was satisfied. The court reviewed the standards established by the First Circuit for evaluating liability in suicide cases: a plaintiff must show 1) a sufficiently serious risk; 2) defendant's actual knowledge of an elevated risk; and 3) failure to take "obvious" steps to address a known, serious risk. Id., 162-64. The court granted summary judgment as to each of the defendants: while the clinician who tended to the plaintiff may not have recognized the "pattern of decompensation," he did not consciously disregard a risk; the physician's decision to go along with the clinician and not visit the decedent personally did not show deliberate indifference; rather, the evidence showed nothing other than an effort to treat the decedent; and the medical director had no real role in the decedent's death.
In Taraco v. Maloney, 923 F.2d 231, (1st Cir. 1991), the plaintiff's decedent was sentenced to a term of 18-20 years. He told the intake counselor that he had tried to kill himself awaiting trial, but now he was feeling better. He was released into the general prison population and provided with counseling sessions, the last one of which took place the day before his death. The court stated that it hesitated to find indifference where the facts showed not an absence of help but rather a choice between treatments. The court stated that there may be deliberate indifference where the attention to the inmate is so clearly inadequate as to amount to a refusal to provide essential care, but here the prison officials were not deliberately indifferent to the inmate's needs. They had provided counseling and a substance abuse program; it was not shocking not to provide a psychiatrist. The court noted that a finding of deliberate indifference in the suicide context requires a showing of a "strong likelihood" of self-infliction of harm. Id., 234-36.
In Brown v. Harris, 240 F.3d 383 (4th Cir. 2001), an inmate attempted suicide shortly before he was picked up for a probation violation. He was placed on a suicide watch, and, despite being under video surveillance, he hanged himself. The court held that there was no showing of deliberate indifference. Although perhaps the response was not all that it could have been, in that he was allowed some clothing and actual surveillance was apparently somewhat sporadic, the officials did not disregard the risk. A reasonable, though less than ideal, response is not the equivalent of deliberate indifference. Id., 388-90.
Sanville v. McCoughtry, 266 F.3d 724 (7th Cir. 2001), presents another instance of an inmate with suicidal tendencies. His intake history showed a history of suicide attempts. He refused to take medication, so the doctor discontinued the medication at the inmate's request. His behavior became bizarre and he was segregated for assault. His mother indicated in a telephone conversation that he was suicidal. He saw a psychiatrist and said that he had no plans to kill himself; this information played a part in the psychiatrist's decision to discontinue medications.
He apparently told guards that he planned to kill himself, however. He covered the windows to his cell in violation of the rules, but the guards took no action. The inmate killed himself.
The psychiatrist was not liable for discontinuing medications. The inmate had been functioning for a while without medication, and it was at least not indifferent for a doctor to believe that a patient's desire to be taken off medication outweighed the risk. A doctor may defer to the wishes of a mentally ill person without necessarily being deliberately indifferent. Id., 735-36. The guards, however, did not prevail on summary judgment, because the fact that they allowed the windows to be covered after the inmate told them he was suicidal can show deliberate indifference.
In Soles v. Ingham County, 316 F.Sup.2d 536 (W.D.Mich. 2004), a sixteen year old was arrested for sexual conduct. He had pleaded guilty and while awaiting sentencing, he wrote to his mother and said he was suicidal. He was moved to a suicide watch. A social worker immediately evaluated him and arranged for placement unit. He was diagnosed a week later to be doing better. He continued to be in an observation cell, however, because he continued to express suicidal thoughts and engaged in head-banging. He had a consultation with a medical doctor on April 26 and was returned to the general population. On April 29 he committed suicide.
Citing Farmer, the court held that in order to show deliberate indifference the plaintiff had to show that the deceased demonstrated a strong likelihood of taking his own life, and that a defendant knew of and consciously disregarded an excessive risk of harm. Id., 541-42. The court noted that the defendants certainly knew of a threat, but because the deceased seemed to be coping, they were quite clearly motivated by a concern for the welfare of the inmate. Because the state of mind was unrefuted, summary judgment entered for the caregiving defendants. The deputy sheriff in turn, was entitled to rely on the experts' decisions.
It may be useful to draw some observations from the above case law. After Farmer, of course, the question is whether the defendant actually knows of a strong likelihood of harm and consciously disregards it. The subjective state of mind may be proved by usual means of circumstantial evidence, common where intent is an issue. Factors tending to favor the finding of deliberative indifference include knowledge of recent suicide attempts, declarations by the suicide that he has suicidal inclinations, placement in areas conducive to suicide, failure to provide mental health evaluation and treatment, especially when requested, and generally failure to consider seriously a risk of suicide where the risk is obvious. Factors tending to militate against the finding of deliberate indifference include, most strikingly, the provision of mental health care, even if' the decisions turn out to be wrong, the effort to investigate, apparently good faith efforts to observe, and, probably above all, simply taking seriously the inmate's circumstances. If a custodian seriously considers the plight of the inmate and acts in good faith, she by definition cannot have the state of mind of deliberate indifference.
VI. UNDISPUTED FACTS REGARDING DIRECTLY INVOLVED DEFENDANTS
There are a plethora of facts, mostly not disputed, regarding the actions of each of the defendants. I first consider those who were directly involved with the care of Mr. Newlan.
1. Arlene Raymond
Arlene Raymond is the registered nurse who recommended that Newlan be removed from suicide watch on March 11. She specialized in psychiatric treatment. When she came on duty on March 11, she saw that Newlan had been admitted on suicide watch. A patient may be placed on suicide watch after a mental health assessment at the time of admission; one is placed on suicide watch either because of being actively suicidal or because of a history of suicide attempts, which suggests monitoring to see how the adjustment is working out. When a patient is on suicide watch, he is placed in a cell containing only a bed, vents with small openings, no clothes or shoes but only a gown that is fastened with velcro. There are no utensils or other possessions and ordinarily that patient is not allowed outside of the cell. A staff person observes the inmate every fifteen minutes and notes the patient's activity on a sheet outside the door. Medical staff monitor the inmate every two hours and note activity. When taken off suicide watch but kept in the infirmary on mental health monitoring, he was allowed to have clothes and shoes, receive visitors, make phone calls, have reading materials and plastic utensils. They still receive fifteen-minute monitoring, but notations do not have to be made. Inmates on "mental health monitoring" status are seen daily by medical staff.
Many inmates have some sort of substance abuse problems on admission to the correctional facility. Inmates are given detoxification medication and are followed by medical personnel. They are not routinely followed by psychiatrists.
When Ms. Raymond arrived on duty, she noted, as stated above, that Newlan was on suicide watch. Procedure required her to call a psychiatrist to continue suicide watch; she called Dr. Jay Berkowitz, a psychiatrist on call, for a continuation order until she had time to review the documentation and interview Newlan. He approved the temporary continuation at about 9:30 a.m. Ms. Raymond then reviewed the entire record of Newlan's incarceration to the present time and reviewed records of his prior incarceration at Corrigan in 1998 — a nine-day stay.
The record of the current incarceration which she reviewed was attached to her affidavit in Exhibit D. It documents his motor vehicle accident in 1990 with a resulting traumatic brain injury. It notes that the inmate "has had numerous hosp. adm for subst abuse suicidal behavior." A number of such hospitalizations are listed. The record states that he has been maintained on methadone maintenance for about nine months. His court history is summarized. It notes present symptoms of tremors. At least four suicide attempts in the past are documented; the latest was reportedly in 2001, consisting of overdoses of heroin and cutting his arms, while at Rushford, Cedarcrest, Natchaug and Elmcrest. The "quality of lethality" was marked "high lethality." Details of the suicide attempts are included. Although he reported vomiting for the "last three or four days," he presented (on admission intake interview) as alert and oriented and showing no evidence of psychotic [or] thought disturbance. In the words of Mary Mongeau, who performed the intake evaluation, he "presently denies suicidal ideation, however history is significant. Inmate minimizes history and is suspicious of questions r/t suicide." He was reportedly uncomfortable due to detoxification. He was bruised from a "fall" (quotations provided) while in lock-up. He was at times tearful and tremulous. Ms. Mongeau recommended psychiatric referral and fifteen-minute watch evaluation. A psychiatrist, Dr. Richardson, was notified at 10:50 p.m. of the fifteen-minute watch and Newlan was admitted as an inpatient.
Other intake forms, completed by other health providers, contain similar, though not always entirely consistent, information. For example, a physical examination was performed on Saturday, March 9.
For example, another mental health assessment form indicates that he was bruised from a "head banging."
Ms. Raymond interviewed Newlan. They discussed his history of substance abuse, the prior suicide attempts, his current physical and emotional feelings and the concerns expressed by his mother regarding impulse control and not telling the truth when asked about his feelings. She found him oriented with a normal thought process. He was not hallucinating or delusional and had normal memory and concentration. He was not depressed or irritable, but he did express some frustration about social situations. He said he understood his mother's concerns, and reported making progress with a job, an apartment and abstinence from heroin. She saw nothing to indicate that he was acutely suicidal.
Ms. Raymond completed a suicide risk assessment form prepared by the University of Connecticut Health Center Correctional Managed Health Care Unit. All of the sixteen clinical factors were marked negative. Historical factors were largely marked positive: he had a history of prior suicidal behavior, prior psychiatric history and substance abuse history. The "situational factors," including whether the current incarceration was the first, whether he was a recent transfer, difficulty coping with legal problems, etc., were all negative except for a box labeled "Court Date (Pending/Return from)." In the comment section, Ms. Raymond wrote, "court 3/25/02 — anticipates release to program." She noted in the box marked "Other" that he denied "suicidality." In her "comment" section she again wrote, "Anticipates placement in program from court." In the box for "interventions," Ms. Raymond indicated that Dr. Berkowitz had been notified at 12:40, that Newlan was to be maintained on "IPU" on observation status, and that he had a follow-up with a psychiatrist scheduled for March 12, the next day.
She filled out a "Mental Health Treatment Plan" with much the same information and plan. She included a plan to address methadone withdrawal, which included hydration as necessary and listed several medications.
She recommended that the severely restrictive setting be discontinued and that he be kept in the infirmary unit where his detoxification and his mental status would be regularly observed and monitored by medical and mental health staff and where he would be observed by correctional officers at approximately fifteen-minute intervals. In her affidavit, Ms. Raymond stated that she considered the truthfulness issue and understood that frequently suicidal behavior is denied when it in fact is contemplated. She considered as factors favoring the lessening of the restrictive environment his prior incarceration without incident in 1998, the lack of any self-destructive behaviors since his arrival at Corrigan on March 8, the absence of any hallucinations, delusions or depression in the last three days, his apparent orientation and cooperation, his lack of threats of self-harm; his talk of the future, his family support system, and the fact that "detoxification was going pretty well as reflected by the absence of diarrhea, frequent vomiting and the stability of his vital signs." Factors favoring continuing the suicide watch included those which resulted in the suicide watch to begin with: his history of substance abuse, prior suicide attempts and traumatic brain injury. She decided to recommend discontinuing the suicide watch status, where the conditions of confinement can be unpleasant and stressful and "do more harm than good" if continued beyond that which was necessary. She felt he could benefit from an opportunity to socialize and have a more normal life and at the same time be under "close medical and custody supervision." She understood that no one had committed suicide at Corrigan as an inpatient and she hadn't known of anyone tying a shoelace to the vent opening. Part of her decision was premised on her knowledge that Dr. Kohanski, the psychiatrist, would be there the next day.
She called Dr. Berkowitz again and reviewed Newlan's history and her observations. Dr. Berkowitz agreed with the change of placement, with the understanding that he would remain in the infirmary unit and would be seen by Dr. Kohanski the following day. Ms. Raymond thus terminated the "Q15" status at 1:00 p.m. on March 11.
Ms. Raymond noted in her affidavit that the staff reported that on the evening of March 11 Newlan was out of his cell, watching television and socializing with other inmates without incident.
Dr. Kohanski arrived the following day, March 12. Ms. Raymond discussed with Dr. Kohanski the Newlan matter. After her meeting with Newlan, in conjunction with which she apparently talked with other staff and reviewed records, Dr. Kohanski continued his status, that is, in the infirmary under mental health observation. She prescribed IV hydration and the drug Clonidine to help with symptoms of methadone withdrawal.
From a review of the available records Ms. Raymond reported in her affidavit that Newlan had some difficulties with withdrawal but otherwise did well over the next few days. He was noted to be socializing, watching television and talking on the telephone. His IV hydration was discontinued on March 13. He did report trouble sleeping, but several other symptoms were subsiding. His vital signs were stable throughout and his appetite reportedly improved.
Ms. Raymond next saw Newlan on March 14 shortly before 2:00 p.m. She did a follow-up mental status evaluation. He indicated he was feeling better and he was not going to hurt himself. He seemed friendly and cooperative. She planned for him to continue with mental health observation in the infirmary while he completed detoxification and he would then be assessed again by Dr. Kohanksi. Later in the day on March 14, Newlan committed the act of self-harm which resulted in his death. Ms. Raymond reports in her affidavit that she regrets the suicide but feels that the care rendered was appropriate.
Though not squarely disputing the gravamen of the facts reported by Ms. Raymond, the plaintiff seeks to emphasize different features, both in argument and through the presentation of expert opinion in the form of affidavits and attachments. The plaintiff suggests, inter alia, that Ms. Raymond minimized the discomfort experienced by Newlan in the course of detoxification and too cavalierly accepted the word of Newlan as to his lack of suicidal intention, especially in light of his mother's report of Newlan's propensities and his marked prior history. Even if the watch were to be relaxed in some fashion, the plaintiff suggests, Ms. Raymond knew that Newlan would be provided with shoelaces. The grate on the vent may not have been used before as an anchor for a ligature, but, at least in retrospect, it can be used for that deadly purpose. In short, the plaintiff suggests that there are facts from which a finder of fact could find a deliberate indifference to Newlan's health or safety.
The parties disputed in their briefs the proper role of expert opinion in the determination of the motion for summary judgment. My use of the expert analysis is simple: I do not consider the opinions for the purpose of factual analysis, but I have considered the points of view expressed. The issue of whether the corrections personnel acted with deliberate indifference to the health and safety of an inmate is different from the question of whether there were deviations from the appropriate standard of care. Expert opinion is obviously most germane to the latter issue.
I must disagree. Though a rational finder of fact perhaps could find that the known facts were considered improperly and the balance which was struck was a deviation from the standard of care, there is no genuine dispute as to whether she seriously considered the suicide risk in her evaluation. Indeed, the record is replete with careful consideration, from a thorough review of the record and an interview with Newlan, to discussions with psychiatrists and a transfer which contemplated observation at fifteen-minute intervals and an appointment the next day with a psychiatrist. Ms. Raymond knew Newlan was being followed medically for detoxification; detoxification, regrettably, was a common event among newly arrived inmates. She knew that Newlan looked forward to the future with some degree of optimism: he said that he was looking forward to his next court date, in about two weeks, because he thought he would be released into a program. Given undisputed facts, it cannot rationally be held that Ms. Newlan "consciously disregarded" the risk of suicide.
The plaintiff has suggested, for example, that people at Corrigan should have obtained the treatment records from prior medical providers and institutions before making decisions. It is reported to me anecdotally that it can take weeks or months to obtain medical records, though perhaps emergency requests may be treated more expeditiously. In any event, they clearly would not be available in the next few business days after Newlan's arrival at Corrigan, and I do not find as very significant the decision, or lack of decision, to act prior to receiving Newlan's complete records.
A reasoned choice between medical treatments, though potentially negligent, is not reflective of deliberate indifference. See Estelle, supra; Taraco, supra, 234-35; Hathaway v. Coughlin, 99 F.3d 550 (2d Cir. 1996); Fredericks v. Huggins, 711 F.2d 31 (4th Cir. 1983); cf. Weyant v. Okst, supra. Here, Newlan's detoxification issues were observed and specifically addressed. They were not consciously disregarded, even if the treatment suggested by the plaintiff was not followed.
2. Renee Kohanski
Renee Kohanski is a licensed psychiatrist. At the time of this incident, she was a "contract psychiatrist" with the Department of Corrections. Twice a week she conducted a clinic at Corrigan and saw patients identified by staff personnel. She saw Newlan once, on March 12, 2002. Prior to the visit she talked with Arlene Raymond, who had conducted her mental health status and suicide risk assessment the day before. She reviewed the available records. She spoke with two nurses, Thomas Richards and Bruce Patterson, before seeing Newlan. Mr. Patterson accompanied her in her meeting with Newlan and helped her assess his needs.
Like Ms. Raymond, she knew Newlan had a long history of substance abuse, an automobile accident with traumatic brain injury, a history of suicide attempts and that he was being maintained on methadone at the time of his current arrest. She knew he had been depressed and irritable at the time of his intake on March 8 and that his mother had reported that Newlan's self-reporting as to suicidal intent was not to be trusted. She knew about his 1998 incarceration without incident. She knew he had been placed on suicide watch for the period of time between March 8 and March 11. She knew about the puppy-ferret reports. She knew that Dr. Berkowitz had approved the transfer into the infirmary unit with mental health monitoring and continuing detoxification. She knew from discussions with Ms. Raymond and Mr. Richard that he was experiencing withdrawal symptoms including chills, goose bumps, anxiety, loss of appetite, one incident of vomiting and some sleep disturbance. He had been determined to have four risk factors for suicide out of 38 possible risk factors on the applicable form. She knew that during his time at Corrigan he had shown no inclination toward suicide. In fact, his behavior was noted to be reasonably social and cooperative and he was expressing various hopes about the future.
On a form she had filled out at the time, Dr. Kohanski reported that Newlan suffered from "formications" and "hallucinations." In her affidavit, she said that she had used those terms to describe Newlan's feeling that his skin was crawling as a result of the goose bumps. I find it unnecessary to form any conclusion as to her actual observations.
Dr. Kohanski averred that she did not attempt a formal mental health diagnosis because withdrawal can interfere with symptoms. Her effort on March 12 was to assess health and safety. She said that Newlan was cooperative and relieved to be living a more normal existence since his transfer from rigorous suicide watch. She did, however, believe that his discomfort from withdrawal had worsened over the last day and she tried to help him with that process. She decided, from physical examination and observation that he was experiencing mild dehydration; she prescribed a twenty-four period of intravenous hydration. She changed his Vistaril medication from pm to fixed intervals and added Clonidine twice a day, because his blood pressure could be monitored at the infirmary setting.
She kept Newlan in the infirmary unit under mental health monitoring. She expected observation at fifteen-minute intervals. She expected to see him again at her next visit to Corrigan, which presumably would occur toward the end of the week.
In her affidavit, Dr. Kohanski stressed that the conditions of suicide watch are quite extreme. She said that Newlan had spent three days on suicide watch, and that historically most suicide attempts in jail settings occur within the first twenty-four hours. Although he had a significant history, his stay at Corrigan had not suggested any immediate threat of self-harm. Dr. Kohanski averred that she generally trusted Ms. Raymond's judgment and respected her "competency, sensibility and compassion." She was aware that no one had committed suicide in the infirmary unit and had not been aware of anyone tying a shoelace to the vent grate. She reviewed the records following her visit with him and noted that he appeared to be improving during that time frame. She said that if a history of past suicide attempts and an inclination to lie were in themselves to mandate lengthy suicide watches, then many inmates would be on suicide watch indefinitely. She was concerned about the deprivation of the right to the least restrictive environment.
The plaintiff again suggests that Dr. Kohanski consciously disregarded the risk of Newlan's suicide. The argument seems to center on Dr. Kohanski's appreciation of Newlan's difficulties with withdrawal in the context of a patient with historically documented suicidal tendencies. Although her affidavit takes some of the sting out of the language of her reporting at the time, a trier of fact would be entitled to believe the language of the report. Nonetheless, as in the case of Ms. Raymond, the undisputed facts clearly show that far from consciously disregarding the risk of suicide, Dr. Kohanski consciously regarded the risk. She simply decided, based on her observations and review of the various records, that the risk did not justify changing the current conditions of confinement.
The legal considerations outlined in note 8, supra, are also applicable here.
3. Jay Berkowitz
Dr. Berkowitz was the on-call psychiatrist who talked with Arlene Raymond twice on March 11. He was physically located at the Bridgeport Hospital at the time of the telephone calls and did not see Newlan in person, nor did he read the various records. He relied on Ms. Raymond for his information and he reportedly considered her to be most reliable. The conversation in which he ordered the suicide watch discontinued probably lasted about fifteen minutes.
When he released Newlan from "suicide watch," he understood that he would be remaining in the same infirmary cell, but would live under a somewhat reduced level of restrictions. He knew Newlan would still be watched periodically and he knew he was scheduled to see a psychiatrist the following day. He did not specifically know whether Newlan would be provided with shoelaces. He ordered that Newlan could have "clothes," but that meant whatever Corrigan considered appropriate for Newlan's level of confinement. He knew that "clothes" did not mean street clothes, but rather jump suit or pajamas or other prison garb.
Allowing items of clothing which, in retrospect, were detrimental, does not in itself constitute deliberate indifference, so long as a risk was not consciously disregarded. Brown v. Harris, supra, 390.
It is fairly clear from a reading of Dr. Berkowitz transcript provided in connection with the summary judgment materials that in making his order Dr. Berkowitz relied primarily on the recommendation of Ms. Raymond, though he also considered portions of records most likely read to him. Though there may be some standard of care issues, there is no genuine issue of fact as to deliberate indifference.
A decision to agree with a clinician, and not visit the inmate personally, does not rise to the level of deliberate indifference. Pelletier, supra, 168.
4. Glen Shea
Mr. Shea is a registered nurse with considerable experience in the field of detoxification and withdrawal. He had worked in the department since 1996 and was a Correctional Head Nurse since 2000. As head nurse, he would take vital signs, administer medications, check on the well-being of patients, and generally attend to nursing duties. He would personally check on suicide watch inmates at two-hour intervals.
Shea was the second shift head nurse at Corrigan from March 9 through March 14, with the exception of March 13, which was a day off. Near the beginning of his shift on March 9, Shea reviewed Newlan's chart. On March 9 Shea talked with Newlan, took his vital signs and administered Vistaril for anxiety. Newlan had little appetite. He did say he was cold and wanted his clothes (he was on suicide watch at the time) but had no other complaints. Vital signs were stable. He did not appear acutely suicidal but Shea marked "unknown" on the mental health flow sheet because he had not had sufficient time to observe him.
On March 10, the day before Ms. Raymond first saw Newlan, Shea noted that he ate half his dinner, had been resting comfortably and had no complaints except he still wanted regular pajamas. He requested and was given Vistaril and Motrin. He was still on the suicide watch, but gave no overt indication of being suicidal or depressed.
When Shea began his shift on March 11, Newlan had been removed from suicide watch but remained in the infirmary under mental health monitoring. He at dinner, took fluids, had no vomiting or nausea, took Vistaril and Motrin. He socialized, watched television and rested quietly. He was oriented and did not show symptoms of being disoriented or depressed. On March 12 he was much the same, with the exception that the IV was being administrated properly.
Shea saw Newlan when he arrived for work on March 14. Newlan had eaten most of his dinner and had some fluids. He had been given Clonidine and thus had a slight drop in blood pressure. He indicated to Shea that he felt better and expressed a desire to go to the general population.
At 6:30 p.m., on normal rounds, he noted Newlan "sort of leaning against the wall in the rear of the cell straddling the toilet with his head tilted forward." When Newlan didn't respond to Shea's calling for him, he called a Code White, or medical emergency. He found Newlan with a shoelace around his neck; the shoelace was not at the time connected with anything else. He lowered Newlan to the floor and probably removed the shoelace from his neck. He found no pulse. He started CPR with rescue breathing. Other staff arrived and helped with the resuscitation effort; an EMT who arrived coordinated the effort.
Shea expressed the belief that he thought Newlan was doing progressively better while under his care. He said that so far as detoxification was concerned, he showed no signs of nausea, vomiting, diarrhea, chills or tremors in the last few days, and his vital signs remained stable. He did not appear to be actively suicidal and never harmed himself prior to the successful effort. He never expressed the desire to harm himself.
Shea was not responsible for assigning levels of supervision to his patients, though he did make notations on the charts when he thought it was relevant. The primary complaint as to Shea seems to be that he was inattentive on the last night. If so, then there might be a degree of negligence, but there is no genuine issue as to conscious disregard of a suicide risk.
5. Ninnette Barile
Ninnette Barile is a licensed clinical social worker who provided mental health coverage for Corrigan on occasional weekends in 2002. She was on duty on the weekend during which Newlan was admitted to Corrigan. She met with him on March 9, when he was on suicide watch. He was asking for his clothes. He was alert and oriented but had some illogical thought processes. He denied suicidal ideation. Based on the initial mental health assessment, she thought he had some potential for self-harm.
She saw Newlan on Sunday, March 10, as well. She found him to be alert, logical and oriented. He denied suicidal ideation and showed no signs of being actively suicidal. She was prepared to recommend that he be discontinued from suicide watch, but because of concern he expressed about a puppy, she decided to call his mother. On the morning of March 10, Mrs. Newlan repeated some of the information already gathered, and stressed that Newlan may say he is fine when he is in fact suicidal. She said she was hoping to arrange a therapy and vocational program for Newlan. After the conversation with his mother, Ms. Barile again spoke with Newlan, who admitted that he had lied about a puppy but he was concerned about the ferret. Ms. Barile marked on the form illogical thought processes; she said in her affidavit that this categorization was made primarily because of the puppy/ferret question. She decided to postpone any decision regarding removal from suicide watch until the regular mental health staff returned on Monday, and suicide watch was continued for another day.
Ms. Barile returned to her regular job in another unit on Tuesday, March 12, after a day off and had no further contact with Mr. Newlan. She did not speak further with Ms. Raymond and had no communication with her other than through notations on Newlan's chart. She did not return to the unit on her own to see how Newlan was doing; she trusted in the regular mental health staff at Corrigan. Ms. Barile notes in her affidavit that she did conduct a suicide risk assessment of Newlan at the time of his 1998 incarceration at Corrigan and spoke with his mother at that time. At that time Newlan resided in the general population and was seen from time to time by mental health personnel. There were no untoward incidents during that period of incarceration.
On the uncontested facts, it is difficult to determine what the basis is for any liability on the part of Ms. Barile. Her only specific conduct regarding Mr. Newlan was to continue the suicide watch rather than to discontinue. Though perhaps she could have insisted on more, there is nothing to support the finding of a deliberate indifference to Mr. Newlan's health or safety.
The motion for summary judgment in favor of the defendants is granted, then, on the second, fourth and fifth counts of the complaint, because there is no genuine issue of fact on the issue of deliberate indifference and a rational fact-finder could reach only one result.
VII. SUPERVISORY OR POLICY MAKING DEFENDANTS
The claims against the remaining defendants are based on conduct other than direct involvement with Mr. Newlan. Personal involvement of some sort is required in order to establish liability pursuant to 42 U.S.C. § 1983. Such liability may be established by a) direct participation; b) failure to remedy an unconstitutional practice after having been informed of it; c) creation or continuation of a policy or custom under which unconstitutional practices occurred; d) gross negligence in supervising subordinates who committed constitutionally wrongful acts; or e) deliberate indifference by failing to act on information indicating that unconstitutional acts were occurring. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995); see also McCann v. Coughlin, 698 F.2d 112, 125 (2d Cir. 1983); Mroz v. City of Tonawanda, 999 F.Sup. 436, 461 (W.D.N.Y. 1998); Soles v. Ingham County, 316 F.Sup.2d 536, 543-45 (W.D.Mich. 2004); Board of County Commissioners v. Brown, 520 U.S. 397, 414 (1997). Because Mr. Newlan's constitutionally protected rights were not violated, in that he was not treated with deliberate indifference to his health and safety needs, there is no need further to examine supervisory or policy-making liability. Summary judgment is granted in favor of the supervisory and policy making officials named in the third and fifth counts.
It is conceptually possible for the direct participants to avoid liability and for supervisors or policy makers to be liable. For example, there may be situations in which a direct participant may be shielded by qualified immunity, but a custom or policy nonetheless causes constitutional deprivation. The present situation is, of course, more simple. I have found that there was no violation of constitutionally protected rights in the first place.
VIII. QUALIFIED IMMUNITY
The defendants have pleaded defenses of qualified immunity. One who has deprived another of her constitutional rights is nonetheless immune from suit if, although the facts alleged in the complaint could, if true, constitute such a violation, the right was not clearly established in the context presented at the time of the violation. Saucier v. Katz, 533 U.S. 194, 200-03 (2001). Several of the cases cited above were presented in the context of a claim of qualified immunity: if the facts alleged don't constitute a constitutional violation, the defense is necessarily proved. The defense is frequently asserted and argued early in the course of a case, because part of the right included in the defense is immunity from trial as well as from liability. Saucier, id.
See also X-Men Security, Inc. v. Pataki, 196 F.3d 56, 65-66 (2d Cir. 1999), in which it was held that the defense of qualified immunity may be established where 1) the conduct alleged is not prohibited; 2) it is prohibited, but the right which was violated was not clearly established; or 3) conduct was objectively reasonable in light of rules established at the time.
Because I have found for the defendants on the complaint, I do not reach the defense of qualified immunity. I should note that I do find that the substantive due process right of a pretrial detainee to be free from deliberate indifference to excessive risks to health and safety was well established in 2002, so that if a violation of a constitutionally protected right had been established, then none of the defendants would have been protected by the defense of qualified immunity.
IX. CONCLUSION
The massive documentation removes from serious factual dispute the issue of deliberate indifference. The defendants providing hands-on care quite expectedly assert that they carefully considered the risk of suicide. If circumstantial evidence raised a genuine issue as to the sincerity of that assertion, summary judgment would be avoided. The circumstances even more convincingly compel the conclusion that, although the balance may perhaps not have been appropriately struck, it was not struck without carefully considering the deceased's best interests, and a reasonable effort was made to determine the facts. Summary judgment shall enter in favor of the defendants as to all counts but the first.