Opinion
CAUSE NO. IP00-0600-C K/H
April 18, 2003
ENTRY ON MOTION FOR SUMMARY JUDGMENT
On Sunday, April 12, 1998, Donald Ray Terry ("Donald") died after he hanged himself in the Montgomery County Jail in Crawfordsville, Indiana. Donald's mother, plaintiff Rita D. Terry has filed this action both individually and as the personal representative of Donald's estate. She alleges that Donald's suicide resulted from the defendants' deliberate indifference to the serious risk that he would commit suicide, in violation of the Eighth and Fourteenth Amendments. Mrs. Terry has asserted claims under 42 U.S.C. § 1983 against defendants Sheriff Dennis Rice, Jail Nurse Norris Stephens, and Chief Deputy Sheriff Robert Coudret in their individual capacities, and against Sheriff Rice in his official capacity for these alleged constitutional violations.
Defendants moved for summary judgment on all claims, arguing in essence that none of them had any actual knowledge that Donald was a suicide risk in March and April 1998, so that they could not have been deliberately indifferent to such a risk. If the facts are as defendants claim, they will be entitled to judgment in their favor. But in deciding such a motion for summary judgment, of course, the court does not decide a case based on the actual facts. Instead, the court must view conflicting evidence through a lens that requires the court to give the non-moving party the benefit of all conflicts in the evidence and the benefit of any reasonable favorable inferences. Viewed through that lens, the evidence submitted by plaintiff Mrs. Terry would allow a jury to find that Sheriff Rice, Chief Deputy Coudret, and Nurse Stephens all knew that Donald was a suicide risk and acted with deliberate indifference to that risk. The right of a prisoner/detainee to be free from deliberate indifference to a serious risk of suicide was well established in 1998, so qualified immunity is not available here.
Also, a reasonable jury could find against Sheriff Rice in his official capacity because the Sheriff's Department did not have in place a needed policy aimed at identifying and protecting suicidal inmates. Defendants' motion for summary judgment is therefore denied.
I. Preliminary Issues
Evidence is admissible for purposes of summary judgment to the same extent that such evidence is admissible at trial. See Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir. 1997) ("hearsay is inadmissible in summary judgment proceedings to the same extent that it is inadmissible in a trial"). Defendants have raised a number of objections to evidence that Mrs. Terry has submitted in opposition to summary judgment.
A. Exhibit B
On March 21, 1998, about three weeks before he succeeded in committing suicide, Donald deliberately cut his wrist at the jail and then fought with jailers. Sheriff Rice and Chief Deputy Coudret then transferred Donald to the Indiana Department of Correction's Reception and Diagnostic Center (RDC) for "safekeeping." Six days later, defendants Coudret and Rice had Donald transferred back to the jail, ostensibly because the cost of the RDC stay was prohibitive for the county. Exhibit B consists of Indiana Department of Correction records from Donald's six-day stay at the RDC from March 21-27, 1998. The records include the RDC psychiatric evaluations and related materials indicating that RDC officials viewed Donald as a suicide threat and put him on a suicide watch.
Defendants argue that the entire exhibit is hearsay and not subject to any exception. This objection is overruled. The documents are being offered for the truth of matters asserted in them. However, the documents are admissible pursuant to Federal Rule of Evidence 803(8)(B). The first page of Exhibit B is a Certification of Records bearing the seal of the Indiana Department of Correction and the signature and attestation of the keeper of the records. The records are of a public agency, are required to be maintained, and address matters required by law to be observed. To the extent the records include hearsay-within-hearsay statements by Donald relevant to his then-existing mental, emotional, or physical conditions and/or for purposes of medical diagnosis or treatment, such statements are admissible under Rule 803(3) and (4).
B. Portions of Exhibits E and F
Defendants next argue that the March 12, 1998 letter by Dr. Abbert in Exhibit E and the February 23, 1998 chart notes of Dr. Surakanti in Exhibit F are inadmissible hearsay. These objections are sustained.
Dr. Abbert's 1998 letter was addressed to Judge Ault of the Montgomery Superior Court concerning Donald's court mandated psychiatric evaluation. It is a certified copy, stamped by the clerk of the court. Defendants argue that this is inadmissible hearsay. Plaintiff responds by pointing out that the letter is authenticated pursuant to Rule 902(4) of the Federal Rules Evidence. She also argues that it is admissible pursuant to Rule 703 because Dr. Morgan, one of plaintiff's experts, relies on the letter. See Fed.R.Evid. 703 (experts may rely on inadmissible evidence in forming an opinion if that evidence is of a type "reasonably relied upon by experts in the particular field"). Rule 703, however, does not allow an expert witness to cure so easily the hearsay problem for what is otherwise inadmissible evidence. Rule 703 provides in part: "Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect." Fed.R.Evid. 703. At this point, defendants' objection is sustained.
Defendants also object to Dr. Surakanti's chart notes on hearsay grounds. The notes were produced by defendants as a part of Donald's prison record. See Wegner Aff. ¶ 3. They are barely legible and contain no identification that would indicate whose writing it is. See, e.g., Pl. Ex. F at 24. Defendants have made a proper hearsay objection, and plaintiff has failed to address it by suggesting an applicable exception. The objection is therefore sustained. The fact that defendants produce a document does not mean it is admissible against them.
C. Exhibit K
Exhibit K consists of portions of Donald's medical records from Wabash Valley Hospital at various times from 1990 to 1998. Defendants argue that these are hearsay and inadmissible. These documents fall squarely within the Rule 803(6) exception to hearsay for records of regularly conducted activity. The first page of Exhibit K is a certification signed by the custodian of the records satisfying the elements of the business records exception. Also, to the extent that the records contain hearsay in the form of statements made by Donald, those statements are admissible as statements made for the purpose of medical diagnosis. See Fed.R.Evid. 803(4). Defendants' hearsay objection is overruled. The court notes defendants' argument that they had no notice of these matters, but that argument goes to substantive relevance rather than defendants' hearsay objection.
D. Exhibits D, Portions of G, and L — P
Exhibits D, G, and L through P are documents from Donald's prisoner file at the Montgomery County Jail. Donald had spent time in the jail on a number of prior occasions, and had even attempted suicide there in 1989. The records in question reflect that suicide attempt and other incidents, and the documents were produced by defendants. See Wegner Aff. ¶ 3. Some of the documents are observation reports addressed to Sheriff Rice. Defendants argue that these documents contain inadmissible hearsay.
The documents in these exhibits are admissible under Rule 803(6) as business records if "1) the acts recorded therein were reported by a person with knowledge, 2) it was the regular practice of the prison as a regularly conducted business activity to record such acts, 3) the acts were recorded at or near the time of their occurrence, and 4) the documents are properly authenticated `unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.'" Wheeler v. Sims, 951 F.2d 796, 802 (7th Cir. 1992) (affirming trial court's decision to admit prison records under business records exception to hearsay rule), quoting Fed.R.Evid. 803(6). A "prison is clearly a `business'" for purposes of Rule 803(6). Wheeler, 951 F.2d at 802 n. 5. These reports were prepared during the relevant time frames and "are the types of official business records prison authorities keep in the usual course of running" a jail, and "they certainly constitute records of regularly conducted activity in the business of operating a . . . correctional facility." Id. at 805. Furthermore, defendants themselves submitted as evidence some of the very documents they seek to exclude. See Rice Supp. Aff. Exs. 1-2. These hearsay objections are overruled.
E. Exhibit R
Exhibit R is a letter from Karen McGinnis, the Assistant Superintendent of the Indiana Department of Correction. Defendants have objected to the submission of this letter on hearsay grounds. That objection is sustained.
In her letter, McGinnis states that "no bill for Safekeeping for [Donald Terry] was ever issued. The billing rate during that period, March 23, 1998 to March 27, 1998, was $39.32 per day." Pl. Ex. R. In response to defendants' objection, plaintiffs argue that this falls within the Rule 803(10) exception, which states that the absence of a "matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office" may be shown by evidence in the form of testimony "that [a] diligent search failed to disclose the record." Fed.R.Evid. 803(10). It is not clear from the letter if McGinnis has performed a diligent search of the records or not. Also, the letter is not certified, nor is it in the form of a sworn affidavit. Thus, defendants' hearsay objection is sustained.
F. Exhibits S and U
Exhibit S is an affidavit of Dr. Harold C. Morgan, with his expert opinion attached as an exhibit. Exhibit U is the expert opinion and resume of Thomas A. Rosazza. Both opinion letters were submitted as expert opinions in support of the proposition that defendants acted with deliberate indifference to Donald's serious medical needs.
Dr. Morgan is a consultant in forensic psychiatry and teaches clinical psychiatry at the University of South Carolina School of Medicine. In his opinion, Dr. Morgan discusses the facts of the case and then explains his conclusion that the defendants' conduct toward Donald amounted to deliberate indifference. Id.
Rosazza is the president of a "criminal justice consulting firm." See Pl. Ex. U. He has testified in numerous cases and published at least eleven articles that deal with prison conditions and standards. Id. In his report, which has been authenticated by affidavits, Rosazza states the experience he has and identifies the items he reviewed in formulating his opinion. Rosazza's opinion states some of the facts of the case and then explains his conclusion that defendants' conduct constituted deliberate indifference to a serious risk to Donald.
Defendants object to these opinions. Their central argument is that the plaintiff's expert witnesses have confused negligence with deliberate indifference. The opinions use some language of negligence, such as failing to meet standards of care and stating what "should have happened" in this case. However, both opinions acknowledge that the standard is one of deliberate indifference to a known risk.
Absent an admission from a defendant that he recognized the risk in question and chose not to act upon it, a plaintiff suing jail or prison officials under the Eighth or Fourteenth Amendments must ordinarily try to meet the high standard of deliberate indifference through circumstantial evidence. The Supreme Court explained this critical point in Farmer v. Brennan:
Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, cf. Hall 118 (cautioning against "confusing a mental state with the proof of its existence"), and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious. Cf. LaFave Scott § 3.7, p. 335 ("[I]f the risk is obvious, so that a reasonable man would realize it, we might well infer that [the defendant] did in fact realize it; but the inference cannot be conclusive, for we know that people are not always conscious of what reasonable people would be conscious of"). For example, if an Eighth Amendment plaintiff presents evidence showing that a substantial risk of inmate attacks was "longstanding, pervasive, well-documented, or expressly noted by prison officials in the past, and the circumstances suggest that the defendant-official being sued had been exposed to information concerning the risk and thus `must have known' about it, then such evidence could be sufficient to permit a trier of fact to find that the defendant-official had actual knowledge of the risk." Brief for Respondents 22. [FN8]
FN8. While the obviousness of a risk is not conclusive and a prison official may show that the obvious escaped him, see infra, at 1982, he would not escape liability if the evidence showed that he merely refused to verify underlying facts that he strongly suspected to be true, or declined to confirm inferences of risk that he strongly suspected to exist (as when a prison official is aware of a high probability of facts indicating that one prisoner has planned an attack on another but resists opportunities to obtain final confirmation; or when a prison official knows that some diseases are communicable and that a single needle is being used to administer flu shots to prisoners but refuses to listen to a subordinate who he strongly suspects will attempt to explain the associated risk of transmitting disease). When instructing juries in deliberate indifference cases with such issues of proof, courts should be careful to ensure that the requirement of subjective culpability is not lost. It is not enough merely to find that a reasonable person would have known, or that the defendant should have known, and juries should be instructed accordingly.511 U.S. 825, 842-43 (1994) (emphasis added); accord, Comstock v. McCrary, 273 F.3d 693, 703, 704-06 (6th Cir. 2001) (affirming denial of qualified immunity for jail psychologist who removed inmate from suicide watch who then committed suicide; deliberate indifference could be inferred because psychologist "cannot escape a finding of his subjective knowledge of risk just because he `declined to confirm inferences of risk,' namely that [the inmate] felt threatened by other prisoners, `that he strongly suspected to exist'"), citing Farmer, 511 U.S. at 843 n. 8; see also McGill v. Duckworth, 944 F.2d 344, 351 (7th Cir. 1991) ("Suspecting that something is true but shutting your eyes for fear of what you will learn satisfies scienter requirements. Going out of your way to avoid acquiring unwelcome knowledge is a species of intent. Being an ostrich involves a level of knowledge sufficient for conviction of crimes requiring specific intent. Because it is sufficient for criminal liability it is sufficient for liability under the eighth amendment's subjective standard."), overruled on other grounds by Farmer, 511 U.S. 825; cf. Sanville v. McCaughtry, 266 F.3d 724, 737-38 (7th Cir. 2001) (strange behavior of inmate should have put defendants on notice of potential for suicide attempt).
Cf. Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1052 (9th Cir. 2002) (noting that a prison official "`would not escape liability if the evidence showed that he merely refused to verify underlying facts that he strongly suspected to be true, or declined to confirm inferences of risk that he strongly suspected to exist,'" but ruling that the evidence did not indicate defendant even strongly suspected risk of harm), citing Farmer, 511 U.S. at 843 n. 8.
In light of this legal standard and the importance of circumstantial evidence in establishing how obvious a danger was, the opinions of Dr. Morgan and Mr. Rosazza are directly relevant and may be helpful to a trier of fact. Both are qualified to offer opinions on these matters and are familiar with standards of care for prison officials and medical personnel. Dr. Morgan explains how, in his view, the dangers in this case were so obvious and the failures in this case were so extreme that they support an inference of deliberate indifference as to the three defendants. Mr. Rosazza frames his opinions in essentially the same way. Those opinions pass muster under Rule 702. As the Supreme Court explained in Farmer v. Brennan, quoted above, careful jury instructions that focus on the defendants' actual knowledge, rather than what they merely should have known or done, are the answer to defendants' concerns about confusion of negligence and deliberate indifference.
Contrary to defendants' argument, neither expert's opinion attempts to define explicitly the legal term "deliberate indifference," which will be part of the court's jury instructions. The opinions do not reach a legal conclusion. Rather, both opinions, as discussed above, discuss the facts of the case, conclude that those facts amount to deliberate indifference, and explain those conclusions. Whether deliberate indifference occurred is a fact question for the jury. The fact that it is also the ultimate issue of the case does not render an opinion on that fact inadmissible. See Fed.R.Evid. 704(a) (opinion otherwise admissible is not objectionable because it "embraces an ultimate issue to be decided by the trier of fact"); Walker v. Soo Line R. Co., 208 F.3d 581, 587 n. 2 (7th Cir. 2000).
These opinions could be helpful to jurors who are not familiar with jails, inmates, or the challenges faced by those who run jails. See United States v. Young, 316 F.3d 649, 657 (7th Cir. 2002) (affirming trial court's decision to admit expert opinion on the issue of "battered woman syndrome" because a jury "`would have great difficulty in'" understanding victim's later denial of abuse), quoting Arcoren v. United States, 929 F.2d 1235, 1240 (8th Cir. 1991); Haley v. Gross, 86 F.3d 630, 644-645 (7th Cir. 1996) (affirming trial court's decision to admit expert testimony of Thomas Rosazza [spelled "Rozzaza"] concerning prison policies and whether the facts in that particular case amounted to deliberate indifference); Woodward v. Myres, 2002 WL 31744663, *11 (N.D.Ill. Dec. 5, 2002) (Gettleman, J.) (allowing expert to testify about mental health care and suicide prevention policies at correctional facilities in a case involving the suicide of a pretrial detainee).
II. Summary Judgment Standard
The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is appropriate when there are no genuine issues of material fact, leaving the moving party entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party must show there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A factual issue is material only if resolving the factual issue might change the suit's outcome under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual issue is genuine only if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party on the evidence presented. Id. In considering defendants' motion, the court must consider the evidence in the light reasonably most favorable to the opposing party, giving her the benefit of all conflicts in the evidence and all reasonable inferences from the evidence. Id. at 255; Oest v. Illinois Dep't of Corrections, 240 F.3d 605, 610 (7th Cir. 2001).
III. Undisputed Facts
With these standards in mind, the following facts are either undisputed or reflect the evidence in the light most reasonably favorable to the plaintiff.
A. Donald Terry's Last Jail Stay
Donald Terry was a 35 year old pre-trial detainee in the Montgomery County Jail when he committed suicide on April 12, 1998. He hanged himself with a bed sheet. Pl. Ex. H. Terry had a lifelong history of mental illness and had been diagnosed with paranoid schizophrenia. See Pl. Ex. B at 11. His life was characterized by erratic, often violent behavior, and he was imprisoned numerous times at the Montgomery County Jail. See Pl. Ex. I (Donald's inmate records from the county jail).
On January 13, 1998, a state court ordered Donald to submit to a DNA test to resolve a paternity action. He failed to appear for that test, and on February 13, 1998, the Montgomery Superior Court found Donald to be in contempt of court and ordered him to spend 45 days in the Montgomery County Jail. He was taken into custody on February 20, 1998. See Pl. Ex. F at 4-5; Pl. Ex. E at 5-6. From February 20, 1998 until April 6, 1998, Donald was a criminal prisoner, serving his contempt charge. Because Donald had not turned himself in immediately, he was also charged with Escape, a Class C felony. Pl. Ex. F at 6. While in jail, he was served with the arrest warrant for the felony charge on March 27, 1998, and was detained on that charge beginning April 7, 1998. Therefore, from April 7, 1998 until his death on April 12, 1998, Donald was a pretrial detainee.
Approximately one week after Donald was booked into the Montgomery County Jail on February 20, 1998, he was interviewed by Nurse Stephens. Stephens Dep. 56-57. This interview resulted from Mrs. Terry's contact with Nurse Stephens sometime during that first week. Id. at 57. Mrs. Terry informed Nurse Stephens that Donald needed to be on Thorazine and that he had attempted suicide in the past. Id. at 56-57, 103. Nurse Stephens did not inquire into how recent or frequent those attempts had been. Id. at 103.
Based on that phone conversation with Mrs. Terry, Nurse Stephens contacted Dr. Martin Abbert at the Wabash Valley Mental Health facility because he had previously treated Donald. Id. at 60, 101. Dr. Abbert's notes from that conversation reflect that he "would recommend definitely" that Donald take Thorazine. Pl. Ex. K at 8. Stephens testified that she did not inform Dr. Abbert that Donald had been suicidal in the past. Stephens Dep. 103. Stephens did not ask Dr. Abbert if Donald should be seen for follow-up treatment. Id. at 102. Finally, Stephens did not ask Dr. Abbert if there were any special observations that she should make of Donald. Id. at 103.
In addition to contacting Nurse Stephens, at some point prior to Donald's death, Mrs. Terry discussed her son with Sheriff Rice, explaining that he was ill and needed medication, as well as warning Sheriff Rice that "nothing better happen to my son." R. Terry Dep. 14-15.
Throughout March, Donald was also refusing his medication on a regular basis, particularly the morning dosage. See Stephens Dep. 85-88. At no time did Nurse Stephens inquire of the jailers who dispensed the medicine why Donald was refusing. Id. at 85. Nurse Stephens also did not report this behavior to either Dr. Abbert or Dr. Surakanti. Id.
B. The March 21, 1998 Incident and Donald's Transfer
At approximately 3:10 p.m. on March 21, 1998, Donald cut his wrist with a razor blade. See Pl. Ex. F at 12. He was taken from his cell to the booking area, and the cut was cleaned with warm water. Id. Before paramedics arrived, Donald began to struggle with the officers, leaving bruises and bite marks on at least one officer. Id. at 13.
The evidence is in conflict as to how deep or severe the cut to Donald's wrist was. Compare id. at 12 (officer describing cut as a "minor slice"), with Pl. Ex. B at 4 (medical screening upon entry to RDC describing cut as an "open dirty laceration" on left wrist). Dr. Payne of the RDC described it as "a deep laceration to his left wrist." Pl. Ex. B at 11. In deciding the motion for summary judgment, plaintiff receives the benefit of conflicts in the evidence and of all reasonable favorable inferences from the evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Oest v. Illinois Dep't of Corrections, 240 F.3d 605, 610 (7th Cir. 2001). Accordingly, the court assumes for now that the cut was deep and was an evident suicide attempt or gesture.
Sheriff Rice decided to transfer Donald to the RDC, run by the Indiana Department of Correction. Sheriff Rice testified that he approved the transfer upon Chief Deputy Coudret's request. Rice Aff. ¶¶ 26-29. Sheriff Rice's testimony does not indicate any awareness that Donald had tried to injure himself. However, Sheriff Rice's petition to the court for approval of the transfer to the RDC stated that Donald "continued to exhibit conduct which poses a threat to himself and other inmates at the Montgomery County Jail," noting also that he had been in a fight on March 4th, that he had "injured himself in an apparent attempt to go to the hospital" on March 12th, and that on March 21st, he had "repeated his attempts at self injury to go to the hospital." Rice Aff. Ex. 5. The petition also stated that the Montgomery County Jail did not have a temporary holding cell sufficient to monitor Donald at that time. Id.
At approximately 8:30 p.m. on March 21st, Donald was transferred to the RDC, a state correctional facility providing psychiatric care for inmates incarcerated outside the state penal system. The RDC's Dr. Payne testified that it is common "for prisoners who have made suicide attempts or suicide gestures (such as cutting their wrists), to be referred to RDC for safekeeping from the jails." Payne Aff. ¶ 3.
C. Donald's Stay at RDC
When Donald arrived at RDC on the evening of March 21, 1998, he was listed as a suicide risk and placed on "close watch," meaning that someone would observe him every 15 minutes. Pl. Ex. B at 2. When asked if he had ever tried to kill himself, he reported "at times." Id. at 3. The cut on his wrist was described as an "open dirty laceration." Id. at 4. The following day, March 22, 1998, Donald informed Officer W. B. Louderman that if he were found guilty at his upcoming hearing, he would kill himself in the courtroom. Id. at 6. On March 24, 1998, while still at RDC, Donald underwent a psychiatric evaluation with Dr. Richard Payne. Id. at 11. That evaluation indicated that he had a history of suicide attempts and self-mutilation, as well as auditory hallucinations. Dr. Payne described the wound on Donald's wrist as "a deep laceration to his left wrist." Id. Dr. Payne increased Donald's dosage of Thorazine from 50 mg three times a day to 50 mg twice a day and 100 mg at bedtime. Id. at 11-12; Payne Aff. ¶ 2. In addition, Dr. Payne requested that the behavioral clinician follow Donald closely because of the history of suicide. Pl. Ex. B at 11-12.
D. Donald's Return to the Montgomery County Jail
On March 27, 1998, Donald was transferred back to the Montgomery County Jail. Pl. Ex. E at 3-4. Sheriff Rice testified that the reason for transferring Donald back to Montgomery County Jail was the expense of keeping Donald at RDC. Pl. Ex. B at 3. However, Sheriff Rice also testified that he never received a bill for Donald's stay at RDC. Rice Aff. ¶ 3.
All three defendants testified that upon Donald's return, they never reviewed any of the paperwork from RDC, which would have indicated his suicidal thoughts and the increase in his dosage of Thorazine. See Rice Aff. ¶ 31 ("I never saw or reviewed papers from Reception Diagnostic Center upon the return of Donald Ray Terry to the Montgomery County Jail."); Coudret Aff. ¶ 13 ("I never saw or reviewed papers from Reception Diagnostic Center upon the return of Donald Ray Terry to the Montgomery County Jail."); Stephens Aff. ¶ 16 ("I never saw any records from Regional Diagnostic Center Regarding Donald Ray Terry, before or after his transfer."). Stephens also testified that she never made any inquiries as to whether his medication needed to be changed. Stephens Dep. 68. As a result, it appears that Donald never received the increased doses of Thorazine once he returned to the Montgomery County Jail. Cf. id.; Stephens Aff. ¶ 7. There is no evidence in the record that there was a policy in place providing for the delivery of medical records from RDC to the Montgomery County Jail when an inmate is transferred.
Mrs. Terry testified that after Donald returned from RDC, she spoke with Sheriff Rice. R. Terry Dep. 86. She stated that she wanted to know why her son had returned so soon from RDC. She also stated that she wanted to know if they had adjusted his medication and what had happened to him while he was there. Id. Apparently, she had expected Donald to remain at the RDC until he went to trial. Id. The record does not show Sheriff Rice's response to her questions, but viewing the evidence in the light most favorable to plaintiff, this evidence contributes to an inference that Sheriff Rice deliberately chose not to find out how RDC staff had handled Donald for purposes of "safekeeping," at Sheriff Rice's own request.
Shortly after Donald returned to the Montgomery County Jail on March 27, 1998, he was served with the arrest warrant for the escape charge against him. See Pl. Ex. F at 19. Early the following morning, on March 28, 1998, Donald was involved in a fight with another inmate. Id. at 20. As a result, Donald was moved to an end cell and ordered to be placed on lock-down until Sheriff Rice indicated otherwise. Id. Donald appealed this decision to Sheriff Rice, stating that it was more than he could bear. See id. at 22. However, he remained in lock-down until his death.
E. The Events of April 12, 1998
On the Friday or Saturday before Donald's death, Mrs. Terry spoke with him for approximately 30 minutes. R. Terry Dep. 82-83. At that time, Donald did not voice any concerns about being afraid for his safety, nor did he give any indication that he was upset or thinking about committing suicide. Id. at 83-84. Mrs. Terry testified that, at that time, Donald seemed rational. Id. at 92.
Around noon on Sunday, April 12, 1998, Mrs. Terry again spoke with Donald on the phone for approximately ten minutes. Id. at 81. She described his behavior as irrational and testified that Donald had told her that she "needed to get him out of there as soon as possible before something happened." Id. at 92. Mrs. Terry further testified that Donald had told her someone was going to kill him. Id.
Later that same day, it appears that Donald received some upsetting news. Donald had been involved in a relationship with a woman. During his incarceration, Terry sent a number of letters to the woman, most of which were overtly sexual in nature. See Def. Ex. A and attachments. On April 6, 1998, Donald stated in one of his letters that if the woman were to die, he would kill himself. Def. Ex. A, Ex. B at 3. He stated in that same letter that he expected the woman to wait for him to be released from jail, even if were to "take forever." Id., Ex. B at 4. At some point that same day, Donald called the woman from the jail. Id., ¶ 6. She testified that she informed Donald that she was thinking of going back to her ex-husband. Id. She further testified that Donald responded by saying, "Fine, I'm going to kill myself." Id. The woman did not discuss that conversation with anyone at the Montgomery County Jail. Id.
At approximately 1 p.m., Donald informed Louis Davilla, who occupied the cell next to his, that the woman had moved back in with her ex-husband and asked Davilla what he should do. Davilla Aff. ¶ 5. Davilla responded by telling Donald that he could not expect her to wait for him to be released from jail. Id. Donald thanked him for his honesty. Id.
The last regular cell check was at 3:10 that afternoon. Rice Aff. ¶ 9, Ex. 4 at 2. At 3:50 p.m., officers heard shouting from cell block 1 and responded to find Donald hanging from the cell bars by a bed sheet. Id., Ex. 4 at 2. The responding officer and another inmate were able to get Donald to the floor, and the officer began performing CPR. Id. That officer performed CPR for approximately ten to fifteen minutes until the paramedics arrived. Id. Sheriff Rice and Chief Deputy Coudret were notified of the situation, and at approximately 4:45 p.m., Mrs. Terry was notified and taken to the hospital. Id. At 4:57 p.m., Donald was pronounced dead. Pl. Ex. H.
F. Donald's Prior History at the Jail
Donald's long history of incarcerations at the Montgomery County Jail is relevant here because Sheriff Rice and Chief Deputy Coudret had dealt with him for years. When Donald was first admitted to the Montgomery County Jail in October 1989, he was placed on suicide watch. See Pl. Ex. I at 1. One month later, in November 1989, he attempted suicide by slashing his wrists and then pumping his fists in order to make the blood flow out faster. Pl. Ex. D. Defendant Coudret and one other officer, as well as defendant Sheriff Dennis Rice, responded to the incident. Id. Though the officers at the scene described seeing a large pool of blood on the floor, approximately eight to ten inches in diameter, id. at 1 (inmate observation report), Sheriff Rice later testified that this suicide attempt resulted in a "superficial wound" that produced a few drops of blood only. Rice Dep. 52. Coudret and one other officer transported Donald to the Wabash Valley Hospital for emergency treatment. See Pl. Ex. D at 2 (Chief Deputy Coudret took Donald to hospital), 4 (emergency room record describes wound as laceration to wrists and noting possible need for psychiatric treatment).
At some point prior to his first incarceration at the Montgomery County Jail in 1989, Donald had apparently attempted suicide with a gun and by hanging. See Pl. Ex. K at 4 (abdominal surgery for gunshot wound from suicide attempt and attempted suicide by hanging). There is no indication in the record that Chief Deputy Coudret and Sheriff Rice knew about these earlier suicide attempts.
On January 29, 1990, Donald was again admitted to Wabash Valley Hospital for emergency treatment on a 72-hour court-ordered detention after he overdosed on Mellaril, an antipsychotic medication. Pl. Ex. K at 1. His chief complaint was that he continued to want to commit suicide. Id.
On May 7, 1990, Donald was again incarcerated at the Montgomery County Jail. Pl. Ex. I at 1. Shortly thereafter, Mrs. Terry advised the officers that she did not believe her son should be provided with a razor because of his suicidal tendencies. Pl. Ex. L at 1. On August 16, 1990, he was referred by a psychiatrist at Wabash Valley Hospital to Dr. Joseph Herr for a neurological consultation. Pl. Ex. K. at 4-5. Dr. Herr noted Donald's suicidal tendencies and his claims that he heard voices. Id. On November 5, 1990, Donald again expressed his desire to hang himself to one of the jail officers on duty. See Pl. Ex. L at 3. On January 2, 1991, Donald was transferred to the Psychiatric Unit at the state's Westville Correctional Center for treatment for his suicidal tendencies. Pl. Ex. K. at 6. He was diagnosed with paranoid schizophrenia and released on April 26, 1991 to the Indiana State Farm. Id. at 7.
On November 2, 1992, Donald was booked into the Montgomery County Jail for a probation violation. Pl. Ex. I at 2. Officer Mahoy, the booking officer, noted on the intake form that Donald had been treated for mental illness and had attempted suicide "all of [his] life." Pl. Ex. M.
Donald's next incarceration at the Montgomery County Jail was from February 19, 1993 to April 1, 1993. At that time he began taking 100 mg. of Chlorpromazine (also known as Thorazine) three times daily. Pl. Ex. N at 2. Sheriff Rice's signature appears at the bottom of Donald's medication log. Id. The significance of Sheriff Rice's signature on the medication logs is not clear. See Rice Supp. Aff. ¶ 4 (claiming he was not aware of practice of using a photocopy of his signature on medication logs). Donald was again incarcerated at the Montgomery County Jail for various lengths of time during the remainder of 1993 and parts of 1994. During those times, he took Chlorpromazine three times a day. Pl. Ex. P at 1 (medication log bearing signature of Sheriff Rice).
G. Jail Policies and Procedures
At some point in time the medical intake form for the Montgomery County Jail was changed to eliminate the question, "Have you ever considered or attempted suicide?" See Pl. Ex. G at 1 (1992 form). It was changed to the garbled inquiry: "Inmate disoriented/confused to the suggest [sic] risk of suicide?" Pl. Ex. F at 3 (1998 form). In the documents in the record, whenever Donald was asked if he had ever considered or attempted suicide, he responded in the affirmative. See, e.g., Pl. Ex. G. at 1 (August 1, 1992 Montgomery County Jail intake form; "Have you ever considered or attempted suicide? Yes, several 3."); Pl. Ex. B at 3 (March 21, 1998 RDC intake form; "Have you ever tried to kill yourself? At times"). However, when Donald was asked if he was "disoriented/confused to the suggest [sic] risk of suicide" he consistently responded in the negative. See, e.g., Pl. Ex. F at 3 (March 27, 1998 intake form).
The Montgomery County Jail employed a physician who came to the jail at least once a week to review the inmates' medical requests and to do medical examinations. Rice Aff. ¶ 10. To see the physician, an inmate had to fill out a slip of paper describing the reason for the request. Defendant Norris Stephens was employed as a full-time nurse at the jail. Stephens Dep. 25. She screened the doctor request slips to determine if the complaint were something that she could handle herself. Id. at 26. She testified that most of the time, she had discretion in deciding whether an inmate actually saw the doctor. Id. at 26-27. However, she was never given any special training on how to screen the requests, and she was never taught how to treat mentally ill patients. Id. at 27-28.
When the physician prescribed a medication, neither Nurse Stephens nor the physician would personally distribute the medication. Id. at 53. Rather, Nurse Stephens would fill the prescription and a jail officer would distribute the medication to the inmates. The officer would indicate on a "medication log" which medications were given to which inmate and at what time. Id. at 53-54; see, e.g., Rice Supp. Aff. Exs. 1, 2. If the medication was refused, the officer would typically write "refused" on the medication log as well. Stephens would then review the medication logs approximately once a week. Stephens Dep. 54. If an inmate refused his medication, there was no method or system in place for involuntarily administering the drug. Thus, if an inmate refused, he simply went without.
Additional facts are noted below, keeping in mind the standard for a motion for summary judgment, which requires that all record evidence be viewed in the light reasonably most favorable to plaintiff as the non-moving party.
Legal Discussion
I. Defendants' Duties to Donald — Individual Liability
Plaintiff Mrs. Terry asserts claims under 42 U.S.C. § 1983, which provides a cause of action against "[e]very person who, under color of any statute . . . of any State . . . subjects, or causes to be subjected, any citizen . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." Section 1983 is not itself a source of substantive rights; instead, it is a means for vindicating federal rights conferred elsewhere. Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979). To recover under Section 1983, Mrs. Terry must therefore establish that Donald was deprived of a right secured by the Constitution or laws of the United States. West v. Atkins, 487 U.S. 42, 48 (1988).
A. Alleged Constitutional Violations
Convicted prisoners are protected by the Eighth Amendment's prohibition on "cruel and unusual punishment," which protects prisoners from "deliberate indifference" to their serious medical needs. Farmer v. Brennan, 511 U.S. 825, 837-39 (1994); Estelle v. Gamble, 429 U.S. 97, 105 (1976); Estate of Cole v. Fromm, 94 F.3d 254, 258-59 (7th Cir. 1996); see also Hall v. Ryan, 957 F.2d 402, 406 (7th Cir. 1992) (recognizing that prisoners have a constitutional right "to be protected from self-destructive tendencies," including suicide). Farmer made it clear that the "deliberate indifference" standard under the Eighth Amendment must focus on the defendant's subjective state of mind, not on an objective standard of what the defendant should have known.
During his last stay at the Montgomery County Jail, Donald was both a pretrial detainee and a convicted prisoner, so Mrs. Terry has brought claims under both the Eighth and the Fourteenth Amendments. The Eighth Amendment applies to the time that Donald was serving his sentence as a convicted prisoner (March 20, 1998 until April 6, 1998). The Fourteenth Amendment applies to the time that Donald was a pretrial detainee (April 7, 1998 until his death on April 12, 1998). Cavalieri v. Shepard, 321 F.3d 616, 620 (7th Cir. 2003) (pretrial detainee was "entitled to at least the same protection against deliberate indifference to his basic needs as is available to convicted prisoners under the Eighth Amendment"), reh'g and reh'g en banc denied (March 20, 2003); Estate of Cole, 94 F.3d at 259, 259 n. 1 (a "pretrial detainee's rights are `at least as great as the Eighth Amendment protections available to a convicted prisoner'"), quoting City of Revere v. Massachusetts General Hospital, 463 U.S. 239 (1983).
The Eighth and Fourteenth Amendments require that prison and jail officials not act with deliberate indifference to a substantial risk of serious harm to a prisoner. Farmer, 511 U.S. at 828. The deliberate indifference standard is a subjective standard, but it does not require actual knowledge of an individualized threat. Rather, "`it is enough that defendants are aware that their action may cause injury without being able to divine the most likely victim.'" Washington v. LaPorte County Sheriff's Dep't, 306 F.3d 515, 518 (7th Cir. 2002), quoting Delaney v. DeTella, 256 F.3d 679, 686 (7th Cir. 2001). "The key is that the individuals must have actual knowledge of the risk." Id. (emphasis in original). A prisoner alleging violation of his Eighth Amendment rights must show that the defendant official knew of and disregarded an excessive risk to a plaintiff-prisoner's health or safety. Farmer, 511 U.S. at 837. A jury may infer the subjective awareness of a substantial risk from proof of the obviousness of a risk, but the jury is not required to make such an inference. See Estate of Cole, 94 F.3d at 259, citing Farmer, 511 U.S. at 844. At the summary judgment stage, however, plaintiff is entitled to the benefit of that inference if the risk was sufficiently obvious to make the inference reasonable.
The Seventh Circuit has said that "`strange behavior alone, without indications that that behavior has a substantial likelihood of taking a suicidal turn, is not sufficient to impute subjective knowledge of a high suicide risk to jail personnel.'" Cavalieri, 321 F.3d at 621, quoting Estate of Novack v. County of Wood, 226 F.3d 525, 529 (7th Cir. 2000). But odd behavior coupled with actual information that the individual is at a risk of suicide can be sufficient to infer awareness on the part of a defendant. See, e.g., Cavalieri, 321 F.3d at 621 ("Indeed, had no one informed Shepard that Steven was at risk of suicide, this would be a different case. But both Mrs. Cavalieri and Rouse testified that they had alerted Shepard to this specific risk. Shepard was not forced to operate only on the basis of a brief observation.") (citations omitted).
Even if a defendant was aware of a substantial risk, the plaintiff must still demonstrate that the defendant acted with deliberate indifference to this risk. Id. "Although this is a `high hurdle for a plaintiff,' he `need not show that a prison official acted or failed to act believing that harm actually would befall an inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm.'" Id. at 621-22, quoting Farmer, 511 U.S. at 842, and Peate v. McCann, 294 F.3d 879, 882 (7th Cir. 2002).
It should go without saying that suicide "is a `serious harm.'" Estate of Cole, 94 F.3d at 261. In this case, there was a risk of serious harm that actually occurred when Donald committed suicide. "It would be difficult to think of a more serious deprivation than to be deprived of life, and thus plaintiff's claim clearly satisfies the first element." Sanville v. McCaughtry, 266 F.3d 724, 733 (7th Cir. 2001). Thus, the question is whether each individual defendant was aware that Donald "was on the verge of committing suicide," Cavalieri, 321 F.3d at 620, and whether there was a deliberate indifference to that risk. Sanville, 266 F.3d at 737. With these standards in mind, the court addresses each defendant separately.
B. Sheriff Rice in His Individual Capacity
On the claim against Sheriff Rice in his individual capacity, the question is whether Sheriff Rice was aware that Donald "was on the verge of committing suicide." Cavalieri, 321 F.3d at 620. If the trier of fact credits the evidence submitted by Mrs. Terry and gives her the benefit of all reasonable favorable inferences from that evidence, then the answer is yes. Donald had been incarcerated in Montgomery County Jail for varying periods of time during the decade prior to his death. Sheriff Rice had been Sheriff when Donald slashed his wrists in 1989 and was aware of that suicide attempt. Rice Dep. 52; Pl. Ex. D at 1. Furthermore, during Donald's last stay from February 1998 until his death on April 12, 1998, Mrs. Terry was in contact with Sheriff Rice concerning her son's well-being. She testified that she had discussed her son with Sheriff Rice, informing him that he was ill and needed medication, as well as voicing concerns that something might happen to him while in jail. R. Terry Dep. 14-15.
Most important, though, is the evidence of Sheriff Rice's response to the March 21st incident in which Donald cut his wrist with a razor blade. While one officer described it as a minor cut, Pl. Ex. F at 12, others described the cut as "deep" and as an "open dirty laceration." Pl. Ex. B at 4, 11. Paramedics were called, and Sheriff Rice, aware of this incident, transferred Donald to RDC for safekeeping. Sheriff Rice himself signed the court petition to transport Donald to RDC, stating that he continued to pose a threat to himself and others, that he had injured himself on March 12th and again repeated his attempts at self-injury on March 21st. Rice Aff., Ex. 5. Viewing the evidence in the light reasonably most favorable to plaintiff, Donald had attempted to commit suicide on March 21, 1998, and when Sheriff Rice learned of the attempt, he had Donald transferred to RDC for safekeeping because he could not or did not want to deal with Donald.
After Donald had spent six days at RDC, though, Sheriff Rice decided to have him transferred back to the jail, ostensibly for financial reasons. See Pl. Ex. E (Coudret petition to transport prisoner because RDC stay was "cost prohibitive"). Mrs. Terry again spoke with Sheriff Rice, wanting to know why her son had been transferred back so soon, whether his medication had been adjusted, and what had happened to him while he was there. Id. Shortly after his return from RDC, however, Donald got into an altercation with another inmate and was moved to an end-cell and placed on lock-down. Donald appealed the decision to Sheriff Rice, stating that it was more than he could bear. Pl. Ex. F at 22.
Based on these facts, a reasonable juror could conclude that Sheriff Rice was aware of the serious risk that Donald would commit suicide. A jury could reasonably find that Sheriff Rice knew that Donald had attempted suicide on March 21st, yet when Sheriff Rice arranged for Donald's return to the Montgomery County Jail just six days later, he took no actions to address those same risks that had led him to transfer Donald to RDC in the first place.
Sheriff Rice argues that such failure amounts only to negligence, at most. That is an available argument before the jury. However, on this record, a jury could also find that Sheriff Rice chose to turn a blind eye toward a known and serious risk. Such conduct can support a claim for deliberate indifference. See Farmer v. Brennan, 511 U.S. 825, 843 n. 8 (1994); Comstock v. McCrary, 273 F.3d 693, 703-06 (6th Cir. 2001) (affirming denial of qualified immunity for psychologist; inmate committed suicide after psychologist removed him from suicide watch; finding deliberate indifference because, among other reasons, psychologist "cannot escape a finding of his subjective knowledge of risk just because he `declined to confirm inferences of risk,' namely that [the inmate] felt threatened by other prisoners, `that he strongly suspected to exist'"), citing Farmer, 511 U.S. at 843 n. 8; see also McGill v. Duckworth, 944 F.2d 344, 351 (7th Cir. 1991) ("Suspecting that something is true but shutting your eyes for fear of what you will learn satisfies scienter requirements. Going out of your way to avoid acquiring unwelcome knowledge is a species of intent. Being an ostrich involves a level of knowledge sufficient for conviction of crimes requiring specific intent. Because it is sufficient for criminal liability it is sufficient for liability under the eighth amendment's subjective standard.") (citations omitted), overruled on other grounds by Farmer, 511 U.S. 825; cf. Sanville v. McCaughtry, 266 F.3d at 737 (plaintiffs demonstrated sufficient facts to overcome motion to dismiss by asserting that prison guards knew: "1) that Matt had written a last will and testament contemplating his imminent death and telling his mother how to carry on his affairs after he died; 2) that Matt told certain guards that he planned to commit suicide; 3) that he had attempted suicide in the past; 4) that he had a long history of mental illness; 5) that he was not eating and was dangerously thin; and 6) that his mother had called the prison to alert them that he was paranoid, suicidal, and in trouble").
Plaintiff "`need not show that a prison official acted or failed to act believing that harm actually would befall an inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm.'" Cavalieri, 321 F.3d at 621-22, quoting Farmer, 511 U.S. at 842; and Peate v. McCann, 294 F.3d at 882. Based on plaintiff's evidence, a reasonable juror could conclude that Sheriff Rice acted with deliberate indifference.
There is no indication that Sheriff Rice ordered Donald to be placed on suicide watch, or that he even passed along Mrs. Terry's concerns for her son to the jail physician, Dr. Surakanti. To the contrary, Sheriff Rice placed Donald in a cell as far away from other inmates as possible on lock-down, leaving a suicidal Donald isolated. While that response certainly was not as extreme as it could have been, a reasonable juror could determine that this was "the mental equivalent of putting an asthmatic in a place with little air to breathe." Jones`El v. Berge, 164 F. Supp.2d 1096, 1120 (W.D.Wis. 2001) (referring to placing mentally ill inmates in solitary confinement), citing Madrid v. Gomez, 889 F. Supp. 1146, 1165-66 (N.D.Cal. 1995). According to plaintiff's evidence, Mrs. Terry specifically asked Sheriff Rice what changes had been made to Donald's medication while he was incarcerated at RDC. Yet Sheriff Rice made no attempt to determine what changes, if any, had in fact been made to Donald's medication. Donald's prescribed dosage had been significantly increased, but it appears that he never received that increase after returning to the Montgomery County Jail. Based on these facts, a reasonable juror could find this behavior reckless. Accordingly, summary judgment is denied with respect to Sheriff Rice in his individual capacity.
C. Chief Deputy Coudret in His Individual Capacity
Plaintiff has also come forward with evidence that would allow a jury to find that defendant Coudret was aware of the risk that Donald would commit suicide. Coudret knew of the March 21, 1998 incident that can be viewed as a suicide attempt, and which led Sheriff Rice and Coudret to send Donald to RDC for "safekeeping." Coudret also knew of the attempted suicide ten years prior and Donald's current bizarre behavior involving fights and self-injury during his last stay at the jail. From this evidence, as with Sheriff Rice, a reasonable jury could find that Chief Deputy Coudret was actually aware of a serious risk of suicide and turned a blind eye to that risk, at least after Donald's return from RDC on March 27, 1998.
D. Nurse Stephens in Her Individual Capacity
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.'" Sanville v. McCaughtry, 266 F.3d at 734, citing Estelle v. Gamble, 429 U.S. 97, 106 (1976). Rather, plaintiffs must set forth facts demonstrating "that a fact-finder could infer deliberate indifference" from Stephens' treatment decisions. Sanville, 266 F.3d at 734. "`[D]eliberate indifference may be inferred . . . when the medical professional's decision is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible did not base the decision on such a judgment.'" Id., quoting Estate of Cole v. Fromm, 94 F.3d at 261-62. Based on the evidence that has been presented, a reasonable juror could conclude that Nurse Stephens was aware of the risk that Donald would commit suicide and failed to take reasonable steps to prevent that from occurring.
Defendant Stephens testified that she was contacted by Mrs. Terry, who informed her that Donald needed to be on Thorazine and that he had attempted suicide in the past. Stephens Dep. 103. Nurse Stephens did not inform either the jail doctor or Dr. Abbert that Mrs. Terry had mentioned that Donald had attempted suicide in the past. She never asked Dr. Abbert if she should make any special observations of Donald, or whether he should be seen for a follow-up evaluation. After Donald was returned from RDC, she never requested or reviewed any medical files to determine if his medication had been changed or increased. Thus, Nurse Stephens was aware that Donald had the potential to commit suicide, that he was taking the antipsychotic medication Thorazine, that he periodically refused to take that medication, and that he had been sent to RDC for some reason unknown to her. See id. at 66-70, 72. She never made any inquiries as to why Donald was refusing his medication, and she never informed either Dr. Abbert or Dr. Surakanti, the jail doctor, of his refusals. Id. at 85.
This evidence supports an inference of negligence, as the defense argues, but it would also support an inference of deliberate indifference. Based on these facts, a reasonable juror could conclude that Nurse Stephens was in fact aware of the substantial risk that Donald would commit suicide, and that her conduct — her failure to seek information or to address a known risk — amounted to deliberate indifference in that it was "`such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the [she] did not base the decision on such a judgment.'" Sanville, 266 F.3d at 734; compare Estate of Cole, 94 F.3d at 261-62 (doctors were not deliberately indifferent when suicide watch failed), with Comstock v. McCrary, 273 F.3d 693, 703, 704-06 (6th Cir. 2001) (finding deliberate indifference for failing to act on or confirm inferences of risk), citing Farmer, 511 U.S. at 843 n. 8.
"Not noticing that an inmate exhibits a serious medical need does not violate the Constitution because not noticing that a need exists is not considered `punishment' under relevant Supreme Court precedent." Sanville, 266 F.3d at 735, citing Farmer, 511 U.S. at 837-38. In this case, however, the evidence could support a finding that Nurse Stephens did more than simply "not notice." Stephens had been a nurse at the Montgomery County Jail since 1995 and was a licensed practical nurse and a registered nurse. Stephens Dep. 25, 27. During Donald's final stay at the jail, Mrs. Terry called Nurse Stephens to inform her personally of her son's mental illness and need for medication. Mrs. Terry also informed Nurse Stephens that Donald had been suicidal in the past. Armed with this information, a jury could find that Nurse Stephens did nothing. She did not inform anyone, including the jail physician, of the potential for Donald's suicide. She also did not inform either the jail doctor or Dr. Abbert that Donald was refusing his antipsychotic medication. Once he returned from the RDC, she never requested or reviewed any medical records, and thus she "had no way of knowing whether he had any special needs other than the medication that [she] had originally" dispensed on Dr. Abbert's orders. Id. at 68-69. She specifically stated that she never made any inquiries into whether Donald's medication needed to be changed. Id. at 68. Based on these facts, a reasonable juror could conclude that Nurse Stephens' conduct amounted to deliberate indifference. Accordingly, summary judgment is denied with respect to defendant Stephens.
III. Qualified Immunity
The individual defendants contend that they are entitled to qualified immunity from civil suit. The qualified immunity defense to civil rights claims against individual officials is intended to strike a balance between two important values: the public interest in deterring unlawful conduct and providing compensation for victims who suffer constitutional violations, versus the cost of subjecting public officials to suit, in terms of both the actual cost of litigation and the social cost of litigation, such as the risk of inhibiting government action. See Harlow v. Fitzgerald, 457 U.S. 800, 816-19 (1982). When applicable, a qualified immunity defense entitles an officer "`not to stand trial or face the other burdens of litigation.'" Saucier v. Katz, 533 U.S. 194, 200 (2001), quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
Federal courts apply a two-part test to determine whether a government official is entitled to immunity from civil suit. Saucier, 533 U.S. at 200-01; see also McNair v. Coffey, 279 F.3d 463, 465 (7th Cir. 2002); Marshall v. Teske, 284 F.3d 765, 771-72 (7th Cir. 2002). First a court asks whether the facts alleged demonstrate a constitutional violation when examined in the light most favorable to the plaintiff. Saucier, 533 U.S. at 201. If the facts as alleged reveal no constitutional violation, the inquiry ends and the officer prevails on the merits of the case. Id. If the facts alleged demonstrate a constitutional violation, the court next examines whether the right was "clearly established" at the relevant time. Id.; Marshall, 284 F.3d at 772. If both questions are answered in the affirmative, the official is not entitled to qualified immunity.
A. Plaintiff Has Evidence of Constitutional Violations
Mrs. Terry alleges that defendants were deliberately indifferent to Donald's psychiatric needs. The constitutional rights at issue are the Eighth and Fourteenth Amendments prohibition against deliberate indifference to an inmate's serious medical needs. See Farmer v. Brennan, 511 U.S. 825, 837-39 (1994); Estelle v. Gamble, 429 U.S. 97, 105 (1976). As discussed above, plaintiff has not only alleged, but has also come forward with evidence that could lead a reasonable juror to find, that Sheriff Rice, Chief Deputy Coudret, and Nurse Stephens were deliberately indifferent to Donald's serious medical needs. As a result, plaintiff has satisfied the first step in determining qualified immunity.
B. The Law Was Clearly Established
At the second step of the Saucier test for qualified immunity, the court evaluates whether the right allegedly violated was clearly established within the law. 533 U.S. at 201. The purpose of this step is to determine whether the officer was on notice that his conduct would be unlawful. Id. at 202. Qualified immunity will shield an officer from suit if his "actions did not violate `clearly established statutory or constitutional rights of which a reasonable person would have known.'" Hope v. Pelzer, 536 U.S. 730, ___, 122 S.Ct. 2508, 2515 (2002) (qualified immunity did not apply to practice of locking prisoner to hitching post in the hot sun for hours), quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
A constitutional right is clearly established when its contours are sufficiently clear that the reasonable officer would understand that his conduct violates that right. Hope, 536 U.S. at ___, 122 S.Ct. at 2515. The existence of previous cases with materially similar facts is not always required: "a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though `the very action in question has [not] previously been held unlawful.'" Id. at 2516, quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987) (citations omitted). The Supreme Court has held that even in novel factual contexts, officials can be on notice that their conduct violates established law. Id. at 2516; see also Cavalieri v. Shepard, 321 F.3d 616, 622 (7th Cir. 2003) ("it is not necessary that a case be `on all fours' with this one for the case to go to a jury"), reh'g denied (March 20, 2003). The salient inquiry in this step of analysis therefore is whether the law in 1998 gave Sheriff Rice, Chief Deputy Coudret, and Nurse Stephens fair warning that their (alleged) conduct violated Donald's constitutional rights.
Cavalieri v. Shepard is one of many jail suicide cases in which the Seventh Circuit has addressed similar claims. The decision in Cavalieri shows that defendants are not entitled to qualified immunity here. Stephen Cavalieri had kidnaped his former girlfriend and held her hostage for a period of time. A standoff ensued that lasted for several hours, and during that time, the decedent's mother informed the officers that her son was suicidal and needed to go to a hospital. Cavalieri, 321 F.3d at 618-19. Once Cavalieri was taken into custody, his former girlfriend also informed the officers that during the hostage situation he had threatened to kill himself. Id. at 619. After Cavalieri arrived at the jail, he met with the defendant officer for approximately an hour. Id. During that interview, Cavalieri requested to speak with a mental health counselor, and the defendant agreed to provide one. At some point after that interview, Cavalieri was transferred from the city jail to the county correctional facility. Even though this step should have removed Cavalieri from the defendant's control, the defendant continued to remain involved in the case, meeting with Cavalieri's mother, who again informed the defendant of her son's potential for suicide. Id. After that conversation, the defendant spoke with Cavalieri on the phone and determined that he was not suicidal. Id. Cavalieri was never placed on suicide watch, and he never informed the officers at the county jail that he was suicidal. Id. at 619-20. He was placed in a holding cell to await further booking. During that time, he attempted to strangle himself with a telephone cord. He was unsuccessful in taking his life, but the attempt left him in a permanent vegetative state. Id. at 620.
The defendant filed a motion for summary judgment raising the defense of qualified immunity. The district court denied the motion. The defendant then filed an interlocutory appeal, arguing that he should have prevailed on his defense of qualified immunity. In affirming the trial court's decision to deny defendant's motion for summary judgment based on qualified immunity, the Seventh Circuit stated that there is "no doubt that [the right to be free from deliberate indifference to suicide] was clearly established prior to Steven's 1998 suicide attempt." Id. at 623, citing Hall v. Ryan, 957 F.2d 402, 406 (7th Cir. 1992); Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) ("There can be little debate that it was clearly established, long before 1998, `that prison officials will be liable under Section 1983 for a pretrial detainee's suicide if they were deliberately indifferent to a substantial suicide risk.'"), also citing Hall, 957 F.2d at 406.
Thus, in summary, a reasonable jail official would have had notice in 1998 that deliberate indifference to an inmate's or pretrial detainee's substantial risk of suicide could violate his constitutional rights. The defendants are not entitled to qualified immunity.
IV. Official Capacity Claim Against Sheriff Rice
Mrs. Terry has asserted claims against Sheriff Rice in his official capacity as Sheriff of Montgomery County. Plaintiff can establish a claim against the Sheriff in his official capacity only if she can show that Donald's rights were violated as a result of a custom or policy of the Sheriff's Department. See generally Monell v. Dep't of Social Services, 436 U.S. 658, 694 (1978); Harris v. City of Marion, 79 F.3d 56, 58 (7th Cir. 1996). Plaintiff "must point to either an express policy which caused the injury, a widespread practice that is so well-settled as to amount to a policy, or that the sheriff had the final policymaking authority for the decisions regarding the medical treatment [plaintiff] received." Perkins v. Lawson, 312 F.3d 872, 875 (7th Cir. 2002) (affirming grant of summary judgment on § 1983 claim because plaintiff was unable to point to any custom or policy that caused his injury), citing Abbott v. Village of Winthrop Harbor, 205 F.3d 976, 981 (7th Cir. 2000).
Plaintiff does not argue that there was an application of a policy that resulted in a constitutional violation or that as a policymaker, Sheriff Rice made a decision concerning Donald's treatment that resulted in a constitutional violation. Rather, plaintiff argues that the relevant policy was the absence of a policy — the failure to implement proper procedures for dealing with inmates who are mentally ill or suicidal, as well as a failure to implement proper procedures for obtaining inmates' medical records who were transferred to the jail from RDC.
"Where a municipality has failed to make a policy in a situation that calls for procedures, rules, or regulations, the failure itself might be actionable, if, as the Supreme Court emphasized in Collins, the complaint otherwise alleges a constitutional violation." Harris, 79 F.3d at 58. To prove that a constitutional violation has occurred due to a failure to make a policy, the plaintiff must come forward with evidence not only of the particular case but with evidence of a "pattern or series of incidents of unconstitutional conduct or a clear constitutional duty to take action because the situation was certain to recur." Id. at 58-59; see also City of Canton v. Harris, 489 U.S. 378, 389 (1989) (recognizing policy and custom claims under § 1983 where failure to adopt policy reflects deliberate indifference to constitutional rights).
In City of Canton, the Supreme Court stated: "But it may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need. In that event, the failure to provide proper training may fairly be said to represent a policy for which the city is responsible, and for which the city may be held liable if it actually causes injury." 489 U.S. 378, 389-90 (1989) (emphasis added).
Plaintiff cites Boncher v. Brown County, 272 F.3d 484 (7th Cir. 2001), in which the Seventh Circuit noted that "jail suicides are frequent relative to suicides of free people or even of prison (as distinct from jail) inmates. And the risk is concentrated in the early days and even hours of being placed in jail, before the inmate has had a chance to adjust to his dismal new conditions." Id. at 486. Based on that observation, the court concluded that "[j]ail managers who decided to take no precautions against the possibility of inmate suicide — to have no policy, for example no suicide-watch option — would be guilty of deliberate indifference in the relevant sense; they would be ignoring a known and serious risk of death of persons under their control for whose safety they are responsible." Id. at 486 (internal citations omitted).
In Boncher, the court determined that five suicides in five years did not show, without more, a pattern or series of unconstitutional occurrences. "It is not the number of suicides that is a meaningful index of suicide risk and therefore of governmental responsibility, but the suicide rate, and it is not even the rate by itself, but rather the rate relative to the `background' suicide rate in the relevant free population (the population of the area from which the jail draws its inmates) and to the rate in other jails." Id. at 486-87 (internal citations omitted). The court stated that the lack of statistical evidence "compelled" it "to treat Brown County's jail as one of average suicide risk and ask whether there is evidence from which it can be inferred that the jail management was deliberately indifferent to that risk." Id. at 487. The court concluded that the jail management was not deliberately indifferent, despite a poor intake form and only the most minimal training of intake officers. Id. at 486-87 (within 45 minutes of being placed in regular jail cell, as opposed to the jail's suicide watch cell, inmate committed suicide).
In this case, Mrs. Terry focuses on the lack of training and the lack of express procedures for existing mentally ill inmates. She has not submitted any evidence concerning the relative suicide rate for the Montgomery County Jail. Unlike Boncher, plaintiff does not make any arguments concerning the jail's intake form, however inadequate it might be. Rather, she focuses on the lack of policies and training to deal with established inmates who become suicidal at some point during their incarceration, well after the booking process.
During Donald's incarceration, the Montgomery County Jail employed a physician who came to the jail at least once a week to treat the inmates. Rice Aff. ¶ 10. The jail also employed Nurse Stephens on a full-time basis. Id., ¶ 11. According to the medical services policy, the jail physician is responsible for diagnosing and treating the inmates. Pl. Ex. T. The jail physician is also responsible for revising "the policies and procedures of the jail regarding medical services at least annually to ensure standards compliance." Id. at 1-2. To receive medical attention, the inmates filled out slips of paper, requesting to see the jail physician. Nurse Stephens then screened those slips to determine if she could handle the problem herself. Stephens Dep. 26. She testified that most of the time, it was in her discretion to determine whether an inmate actually saw the doctor. Id. at 26-27. However, she testified that she was never given any training on how to screen the requests or on detecting mental illness. Id. at 25-28 (Stephens testified that she received no specific training on how to perform her job, and only received one day of training from the person she replaced).
The Montgomery County Jail had no official suicide watch policy. See Rice Aff. ¶ 25. The policy for dealing with mentally ill inmates that was in place during the relevant time period dealt only with inmates as they were booked into the jail and did not provide any kind of screening mechanism or address the needs of established inmates, such as Donald. See Rice Aff. Ex. 3.
Sheriff Rice testified: "Suicide watch, under the Indiana Jail Rules, would have involved monitoring an inmate more closely than the normal checks by jailers every 60 minutes." Id. Specifically, Sheriff Rice testified that if a "member of the staff" had considered placing an inmate on suicide watch necessary, that person "could have signaled other members of the staff to watch an inmate more closely by putting up a notice in the jailer's station." Rice Aff. ¶ 25 (emphasis added). There is no indication that if an inmate were put on suicide watch, he would have been observed with any regularity, other than "more closely," that sharp objects would have been removed, or that he would have been placed in a suicide-watch cell or transferred to a facility that had such a cell. See Cavalieri v. Shepard, 321 F.3d 616, 621 (7th Cir. 2003) (In response to high suicide rates, "prisons and jails have developed procedures for dealing with prisoners who display suicidal tendencies, such as removing items that could be used as a suicide weapon, like sheets or a sturdy telephone cord, or not leaving those prisoners unattended."), reh'g denied (March 20, 2003). Furthermore, there is no guarantee that other jailers would have either acknowledged or acted on the posted notice. If they were to see the notice, there were no established guidelines for how the jailers were to watch "more closely" the at-risk inmate. From 1977 until 2002, there were approximately four or five suicides at the Montgomery County Jail. Rice Dep. 47.
Furthermore, there is little to no evidence concerning what training, if any, the jail officers received as a part of their job. The record evidence does indicate that, at a minimum, jailers were supposed to receive first-aid and CPR training. See Pl. Ex. T at 1 (medical services policy mandates such training). However, there is no indication that any of the jail officers, who would have had the most opportunity to observe the inmates, were ever "trained regarding recognition of symptoms of mental illness" pursuant to 210 Ind. Admin. Code § 3-1-11(j) (1998); see also Boncher v. Brown County, 272 F.3d at 487 (one factor in determining deliberate indifference was county's "compliance with the state's minimum standards for suicide prevention by jails").
Not having such policies concerning mentally ill inmates effectively allows jail officers to remain blissfully ignorant to a known and serious threat, and can lead directly to the harm of inmates. A reasonable juror could conclude that whatever procedures were in place concerning a suicide watch option were so inadequate as to amount to deliberate indifference. The "note-posting system" did not address the need for removing sharp objects or objects that could be used to hang or asphyxiate oneself. It did not direct jailers on how frequently the inmate should be monitored. Because suicides had occurred in the Montgomery County Jail, and because of the lack of training on mental illness detection mandated by the state of Indiana, a reasonable juror could conclude that "the inadequacy [was] so likely to result in the violation of constitutional rights, that the policymakers . . . can reasonably be said to have been deliberately indifferent to the need." City of Canton, 489 U.S. at 390; see Boncher, 272 F.3d at 486 ("Jail managers who decided to take no precautions against the possibility of inmate suicide — to have no policy, for example no suicide-watch option — would be guilty of deliberate indifference in the relevant sense; they would be ignoring a known and serious risk of death of persons under their control for whose safety they are responsible."), citing Manarite v. City of Springfield, 957 F.2d 953, 957 (1st Cir. 1992), in turn citing Simmons v. Philadelphia, 947 F.2d 1042, 1064-65, 1072-75 (3d Cir. 1991) (reasonable juror could find municipality "deliberately indifferent" to suicide risk where jail did not adopt known, inexpensive suicide prevention measures or train officers in suicide prevention).
Accordingly, summary judgment is denied with respect to the official capacity claim against Sheriff Rice.
Conclusion
Defendants' objections to evidence are overruled in part and granted in part. Defendants' motion for summary judgment is denied. Trial remains scheduled for Monday, May 12, 2003, with a final pretrial conference on Friday, May 2, 2003, at 10:00 a.m. in Room 330, U.S. Courthouse, Indianapolis, Indiana.
So ordered.