Opinion
C033175.
7-22-2003
MARY ELIZABETH WHORTON et al., Plaintiffs and Appellants, v. COUNTY OF CALAVERAS, Defendant and Respondent.
Arrested and awaiting trial on criminal charges, Steven Matthew Whorton fatally hanged himself in his Calaveras County jail cell.
Whortons wife and child sued the County of Calaveras and the Calaveras County Sheriffs Department (County) under Government Code section 845.6 and Title 42 United States Code section 1983 (section 1983). Under Government Code section 845.6, a public entity may be liable for an injury to a prisoner if its employee "knows or has reason to know that the prisoner is in need of immediate medical care and he fails to take reasonable action to summon such medical care." Section 1983 provides a procedural vehicle for civil rights violations.
The County of Calaveras answered the complaint, indicating that it had been "erroneously sued herein as the County of Calaveras and Calaveras Sheriffs Department." All references to "County" shall be to the County of Calaveras only.
County moved successfully for summary judgment on the ground that state and federal law render it immune from liability for damages arising from Whortons death. Plaintiffs appeal. We shall affirm the judgment.
BACKGROUND
a. Undisputed Evidence and Pleadings
In July 1995, Whorton was arrested, charged with possession of a controlled substance and attempted burglary (among other crimes), and placed in the Calaveras County jail. Whorton was still in jail awaiting trial in October of that year when he reported to the jails physicians assistant, Tim Day, that he was depressed; Day referred the matter to "Mental Health."
At the request of his attorney, Whorton was evaluated by two psychiatrists to determine his competency to stand trial. The trial court found Whorton incompetent to stand trial and Whorton was transferred to Patton State Hospital (the hospital or the state hospital) for a 90-day psychiatric evaluation.
In December 1995, the hospital, in a report to the court, concluded that Whorton was competent to stand trial. The report also stated that Whorton had been prescribed various psychotropic (mood-altering) medications—Haldol, Artane, and Klonopin—and warned that "it is critical that Mr. Whorton continue taking the prescribed medication while in custody in order to ensure continued competency." Generally, Haldol and Klonopin are prescribed for anxiety or to reduce agitation.
The following month, the trial court directed that Whorton be returned from the hospital for a hearing to consider whether he had been restored to competency.
In connection with Whortons discharge from the hospital, a discharge summary report was prepared by a hospital staff psychiatrist stating that "the patient is being recommended to return to court pursuant to [Penal Code section] 1372 as competent to stand trial" and reiterating that Whorton must continue taking his prescribed psychotropic medication "to ensure continued competency." The discharge summary report stated as pertinent regarding Whortons hospital stay: "The patient remained on the unit in a very quiet manner with no assaultive behavior and with limited protest concerning his medication. He felt he was not ill and he was held on a bogus charge. . . . The patient did not present the treatment staff with any problems whatsoever." The discharge summary report contained the following diagnosis from the "DSM-IV" manual: "Axis I: . . . Amphetamine-Related Disorder, NOS," "Other (or Unknown) Substance Abuse," "Axis II: . . . Personality Disorder," and "Axis IV: Problems related to interaction [with] the legal system/crime incarceration."
Whorton returned to the County jail on January 20, 1996. Around the time of Whortons return, the jails physicians assistant, Tim Day, received both the discharge summary report and a document entitled "Nursing Discharge Summary or Recommended Continuing Care Plan." The Nursing Discharge Summary set forth the detailed prescription of psychotropic medications for Whorton—Haldol, Artane and Klonopin—and, like the discharge summary report, described his diagnosis as "Axis I . . . Amphetamine-Related Disorder [and] other substance abuse," and "Axis II . . . Personality Disorder." Day communicated to the jail staff Whortons prescription medication requirements, but neither Day, nor any other medical personnel, evaluated Whorton after he returned to the jail. The Countys jail manual then provided generally that "Psychotropic medications shall be dispensed only by the custodial doctor who shall limit the length of time they may be administered and who shall re-evaluate the inmate receiving them. [P] Psychotropic medications shall not be administered to an inmate in excess of 72 hours unless the inmate has given informed consent or is to be transferred within eight hours to a treatment facility . . . ."
On January 29, 1996, the trial court declared Whorton competent to stand trial.
Three days later, Whorton used a razor provided by jail personnel to fashion a rope from a bed sheet, attached it to bars over a skylight in his cell and hanged himself. Emergency medical treatment was administered, but Whorton died two days later.
Whortons wife, Mary, and his 12-year-old son then sued the County. As characterized by plaintiffs in their opening appellate brief, "the essence of both the statutory cause of action under Government Code Section 845.6 and the [due process] civil rights cause of action pursuant to [section] 1983 is that [County], with knowledge that [Whorton] had a history of depression, being treated at a State Mental Hospital, being required to take a regimen[] of psychotropic medications to maintain competence, being reluctant to take those medications, and acting like a zombie, never received any [proper] medical attention. The [plaintiffs] believe the facts known by [County] and the failure to summon any medical attention created a cause of action pursuant to Government Code Section 845.6 and that the custom or practice of [County] not to provide any intake or medical attention for prisoners returning from the State Mental Hospital created a cause of action pursuant to [section] 1983." Plaintiffs also sought damages for violations of their own due process rights, based on County having deprived them of the "right of family companionship" with Whorton.
Plaintiff Mary Whorton alleges that she is Whortons wife. Although certain evidence in the record indicates that she and Whorton never married (although they lived together for many years, had a child together and held themselves out as a married couple), we have assumed consistent with the pleadings that Mary Whorton is Whortons wife.
The record indicates that the other named defendants—the State of California Health and Welfare Agency, Department of Mental Health, and Patton State Hospital—were dismissed from the action before the summary judgment motion at issue here.
It is conceded that the other state statutes upon which the complaint relies provide no independent bases for relief.
County answered, claiming it was immune from liability as a matter of law.
b. Countys Motion for Summary Judgment
County moved for summary judgment, arguing that plaintiffs could not establish they were entitled to relief. First, County argued that it had no knowledge that Whorton was suicidal or needed immediate medical care when he hanged himself because "the undisputed evidence is that Steven Whorton presented no history of suicide attempts or threats to kill himself." County noted that Whorton had made "no mention of suicidal ideations during a 90[-]day psychiatric evaluation ending less than two weeks before he [hanged] himself; in fact, plaintiffs, relatives and his lawyer were all flabbergasted PAGE CONTAINED FOOTNOTES that he would kill himself, as none of them were aware of his desire to do so."
To show that Whortons own family did not know he was suicidal, County submitted excerpts from their respective pretrial depositions. Plaintiff Mary Whorton testified that Whorton "was totally against suicide" and "believed that nothing was that serious to kill yourself." Whortons mother testified she was shocked to hear that Whorton had hanged himself because "he just wanted to come home" and because she had heard him describe suicide disparagingly as "the stupid way out." Whortons son visited him in jail and thought Whorton seemed happier and looked as though he had gained weight.
County also submitted a declaration by psychiatrist Charles Schaffer. Schaffer averred that he had reviewed the "discharge summary from Patton State Hospital" and, although it noted that Whorton was "seclusive while he was there," it contained "no reference to Steve Whorton mentioning any suicidal thoughts or making efforts to commit or threats of suicide at any time while he was in the State psychiatric hospital." That "Whorton continued to remain quiet, seclusive, and withdrawn while at Calaveras County Jail upon his return from Patton State Hospital . . . does not provide anyone with a reason to believe that Steven Whorton was a suicide risk."
Schaffer also opined that County had acted within the standard of care regarding Whorton. "The standard of care in treating a patient who was receiving the therapeutic doses of Haldol, Artane and Klonopin which Steven Whorton was receiving at Patton State Hospital and, later, on return to the Calaveras County jail would not require a psychiatrist or medical doctor to evaluate the patient relating to those drugs, absent evidence of an obvious clinical change in behavior at any time from January 11, 1996[,] through February 25, 1996 [which covered a 45-day period of treatment with the prescribed drugs, a period during which Whorton returned to the jail from the hospital]. [P] . . . [P] The passage of time between a [state hospital] psychiatrists evaluation of a patient such as Steven Whorton [on or about] January 11, 1996[,] through February 1, 1996, when he hung himself, regarding his medications was not indifferent to the needs of the patient but reflect the well recognized principle of medicine in general and psychiatry in particular that periodic re-evaluations spaced out over time are sufficient to meet the needs of a patient maintained at a certain level of medications, even those characterized as psychotropic."
County additionally argued it was immune from liability for damages under section 1983 allegedly arising from its operation of the jail because, in that capacity, the sheriff and his employees were acting as representatives of the state, which may not be sued for damages under section 1983.
c. Plaintiffs Opposition and Evidence
Plaintiffs attempted to show that County knew, or had reason to know, that Whorton was suicidal or in need of immediate medical care and yet failed to summon care for him. They submitted an excerpt from Mary Whortons deposition in which she testified that, around January 21, 1996, during her last visit with Whorton, he pantomimed shooting himself in the head and said he was going to visit a dead pet. She told the correctional officer present (whom she thought was named Greg Stark or Stork) that she thought Whorton was "acting a little strange" and, based on the pantomime gesture, "was going to kill himself." Investigating Officer Mitch Hrdlicka testified at his deposition that a woman (unnamed in the portion of the deposition submitted) reported to him that during her last visit with Whorton, "he put his fingers to his head as if he was shooting a gun into his own head."
Plaintiffs also submitted the deposition testimony of various correctional officers about their observations of Whortons behavior after he returned from the state hospital. Officer Mortimer (who had known Whorton for years) testified that Whorton "wasnt the Steve I remembered" when he returned from the hospital; Whorton "looked like a zombie" and failed to respond when Mortimer greeted him by name. Mortimer concluded from his observations that Whorton was not showing the "normal behavior of inmates at the Calaveras County Jail" and he believed Whorton "capable of doing anything."
Officer Dave Barker and Sergeant Chad Roots also testified that Whorton was acting "like a zombie" when he returned from the state hospital. Barker attributed that condition to the medication that Whorton was taking and made no further inquiry. Barker also testified that correctional officers should record in the jail log if they notice that an inmate is "unusually quiet" or behaving "abnormally" and, although he observed that Whorton was "unusually quiet" after returning from the hospital, he made no record of that fact.
Plaintiffs submitted documents obtained from the state hospital after this action was filed showing that, for three consecutive days in mid-November 1995 while at the hospital, Whorton was thought to be a "suicide risk" and was checked every 15 minutes.
To refute the declaration by Countys expert, psychiatrist Schaffer, plaintiffs submitted a declaration by Joseph Tupin, a psychiatrist and consultant on the standards of care applicable in correctional institutions. Opining that Whorton "died from injuries related to a self-inflicted hanging caused by depression" and "depression is frequently a cause of suicide," Tupin concluded that Whortons comment to Tim Day, the jails physicians assistant, in October 1995 that he felt depressed, coupled with the complete records of Patton State Hospital on Whorton, "clearly establish that [Whorton] was suffering from depression and was suicidal."
In his declaration, Tupin asserted that "the diagnosis of Mr. Whorton received by the Calaveras County Jail from Patton State Hospital is known to carry a risk for depression and suicide." In addition, the medical records on Whorton, as well as deposition testimony in the record, "indicated Mr. Whorton was in immediate need of medical attention for his behavior of being `a zombie, sleeping a lot, appearing heavily medicated and being quiet, which are symptoms of depression." In Tupins view, those documents also provided "abundant reason to believe that Steven Whorton was a potential candidate for suicide upon his return to the jail and that he was in need of immediate medical care which was not summoned or provided. Had such care been summoned, it is my opinion that Steven Matthew Whorton would be alive today."
In his declaration, Tupin also opined at length that County breached the applicable standards of care by:
(1) Failing to evaluate Whorton upon his return from the hospital. "The standard of care in treating a patient who is receiving Haldol, Artane and Klonopin as was prescribed to Mr. Whorton would require periodic evaluations and an evaluation immediately upon his return to the Calaveras County Jail." Countys failure to evaluate Whorton upon his return from the hospital was, in Tupins view, "a significant cause in the death of Mr. Whorton, " in that it "left no opportunity to determine if Mr. Whorton was suffering from depression and was a threat to himself" or the "degree of [his] depression and possibility of committing suicide. . . . In fact, in my experience had Mr. Whorton received an immediate evaluation upon his return to the Calaveras County Jail from a medical doctor, he would have been treated with medications and/or possibly put in special housing for his own safety which would have, with reasonable medical certainty, saved his life"; and
(2) Failing to request from Patton State Hospital all the records related to Whortons treatment. A review of those records, Tupin opined, would have revealed that "Mr. Whorton was depressed and possibly overly medicated, or both" and that "Whortons behavior, while hospitalized, resulted in his being placed on a three-day suicide watch."
County objected to Tupins declaration as inconsistent with his earlier deposition testimony and urged the court to disregard it. In his declaration, Tupin opined that the complete records from the state hospital, as well as Whortons lethargic behavior after returning from the hospital, indicated that he had depression and was suicidal. In his deposition, Tupin stated "we dont know" of any evidence that Whorton was suicidal prior to hanging himself—there were no data and no competent observations. County also objected to Tupins declaration on the relationship between depression and suicide: it argued that Tupins assertion in his declaration that Whortons suicide was "caused by depression" and "depression is frequently a cause of suicide" was contradicted by his deposition testimony that "many patients who have varying levels of depression are not suicidal."
d. Trial Courts Evidentiary Rulings and Judgment
The trial court sustained Countys objections to Tupins declaration, "to the extent that [Tupin] attempted to contradict his sworn deposition testimony[,]" and granted the motion for summary judgment.
The trial court ruled that, "with respect to the First Cause of Action under state law [Gov. Code, § 845.6], the undisputed evidence establishes as a matter of law that [County] did not have actual or constructive knowledge that Steven Matthew Whorton was in obvious need of medical treatment for a serious and obvious medical condition requiring immediate care, nor that any employee of [County] failed to summon for medical assistance which was required immediately."
The trial court further ruled, as to the second cause of action "under 42 U.S.C. § 1983, the undisputed evidence establishes as a matter of law that [County] was not deliberately indifferent to the medical and psychiatric needs of Steven Matthew Whorton, in that [County] did not have actual or constructive knowledge that he had obvious particular vulnerability to or tendency towards suicide while in custody of [County] jail officials that created a strong likelihood that self-inflicted harm would occur, and that as a matter of law, [County] did not have a policy, practice, custom or usage to deny medical care to Steven Matthew Whorton."
The courts order also noted that, although "a review of the record suggests that there would be a triable issue of fact as to whether [County] generally had a policy of failing to provide adequate medical and/or psychiatric care for inmates returning to the Calaveras County Jail from state mental hospitals[,] . . . here there was no admissible evidence that if Steven Matthew Whorton had received any additional medical and/or mental health care that he would not have committed suicide, so there is a lack of causation between this potential issue of appropriate care to inmates generally and what happened to Steven Matthew Whorton."
DISCUSSION
1. Standard of Review
Summary judgment is properly granted when there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) The purpose of the summary judgment procedure "is to provide courts with a mechanism to cut through the parties pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 844 (Aguilar).)
"A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established . . . ." (Code Civ. Proc., § 437c, subd. (p)(2); see also Aguilar, supra, 25 Cal.4th at p. 849.) "There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Aguilar, supra, 25 Cal.4th at p. 850 .)
On appeal after a motion for summary judgment has been granted, the reviewing court reviews the record independently. (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 334.)
2. The Section 845.6 Claim
Government Code section 845.6 states in relevant part: "Neither a public entity nor a public employee is liable for injury proximately caused by the failure of the employee to furnish or obtain medical care for a prisoner in his custody; but, . . . a public employee, and the public entity where the employee is acting within the scope of his employment, is liable if the employee knows or has reason to know that the prisoner is in need of immediate medical care and he fails to take reasonable action to summon such medical care." (Italics added.)
Government Code section 845.6 shall be referred to as "section 845.6" in section 2 of the Discussion only.
Decisional law limits liability under section 845.6 to "serious and obvious" medical conditions requiring "immediate" care; the public entity or employee must know or have reason to know that the prisoner needs immediate medical care, and fail to summon such care. (Lucas v. County of Los Angeles (1996) 47 Cal.App.4th 277, 288 (Lucas); Watson v. State of California (1993) 21 Cal.App.4th 836, 841-842 (Watson ).) Summary judgment is available in an action based on a claim under section 845.6. (Watson, supra, 21 Cal.App.4th at pp. 840-841.)
To sustain its initial summary judgment burden regarding the section 845.6 claim, County bore the burden of making a prima facie showing that Whorton did not present a serious and obvious medical condition requiring immediate medical care, or that its employees did not know or have reason to know that Whorton was in need of immediate medical care at any time prior to hanging himself in his cell. (Lucas, supra, 47 Cal.App.4th at p. 288; Code Civ. Proc., § 437c, subd. (p)(2).) County met this burden. A prisoner with a serious and obvious medical condition requiring immediate care might include, for example, one who is bleeding profusely, unconscious, or unable to move. Depending on the circumstances, a prisoner who is behaving in a suicidal manner or who has expressed that he intends to kill himself could also be said to be obviously in need of immediate medical care. Whorton did not exhibit any of these signs or make any of these expressions. Furthermore, the written reports that County received from Patton State Hospital upon Whortons release (the discharge summary report and the nursing discharge summary) contained no indication Whorton was currently suicidal, had previously threatened suicide or otherwise posed a suicide risk.
We reject plaintiffs related contention on appeal that the declaration from Countys expert, Dr. Schaffer, must be rejected as "wholly deficient and untrustworthy." Schaffers statement that Whortons records from Patton State Hospital contain "no reference to Steve Whorton mentioning any suicidal thoughts or making efforts to commit or threats of suicide at any time while he was in the State psychiatric hospital," was based, as Schaffer stated in his declaration, on the "discharge summary," not on a review of all of Whortons Patton records (which included some daily observation forms indicating that Whorton was placed on a suicide watch there for three days in mid-November 1995). Schaffers declaration identifies the evidence upon which his opinion is based, and we give it the weight to which it is entitled.
The burden thus shifted to plaintiffs to make a prima facie showing of a triable issue of material fact regarding whether Whorton had a serious and obvious medical condition requiring immediate care, and whether County knew or had reason to know that Whorton was in need of immediate medical care. (Lucas, supra, 47 Cal.App.4th at p. 288; Code Civ. Proc., § 437c, subd. (p)(2).) To sustain their burden, plaintiffs must produce evidence from which a reasonable jury could find it "more likely than not" (the applicable standard of proof at trial) that these are the facts. (Aguilar, supra, 25 Cal.4th at p. 851.)
a. Plaintiffs Evidence Does not Raise a Triable Issue of Material Fact that Whortons Alleged Depression Created a Serious and Obvious Medical Condition Requiring Immediate Medical Care
Plaintiffs maintained that Whorton was suffering from suicidal depression. The plaintiffs evidence, however, does not establish that Whortons alleged depression (or depression in general) produced symptoms sufficiently plain and obvious as to warrant imposing liability for the failure to summon immediate medical care. According to the deposition testimony of the plaintiffs expert, Dr. Tupin, "a number of psychiatric illnesses . . . might cause a person to be withdrawn or quiet," including depression. Moreover, "someone who is taking Haldol, Artane[] and Klonopin" (as Whorton was) may exhibit these symptoms, including acting like a "zombie."
In his declaration, Dr. Tupin additionally opined that "depression is frequently a cause of suicide." This suggests that people who commit suicide are often, or frequently, led to do so by depression. However, Tupins deposition testimony suggested that people who are depressed do not often, or frequently, commit suicide. Not only did Tupin agree that "many patients who have varying levels of depression are not suicidal," he also testified that if Whorton seemed depressed, he was not necessarily suicidal:
"Q: Would you have any reason to believe that, just because he was tearful, that he was then suicidal?
"A: Not necessarily. I think it might represent some, perhaps temporary, but at least some worsening of his suicidal — not suicidal — depressive feelings. Certainly seemed to be more expressive and tearful at that point which I hadnt seen before.
"Q: But even though he may be a little more depressed because hes evidencing it by tearfulness, that does not necessarily mean hes more suicidal?
"A: Not necessarily."
b. Plaintiffs Evidence Does not Raise a Triable Issue of Material Fact that County Actually Knew that Whorton Was in Need of Immediate Medical Care
Clearly, if there were evidence that County actually knew that Whorton was currently suicidal and planning to do himself harm, a reasonable jury could find that County knew he was in need of immediate medical care. (See Johnson v. County of Los Angeles (1983) 143 Cal. App. 3d 298, 305, 317, 191 Cal. Rptr. 704 (Johnson); cf. Lucas, supra, 60 Cal. App. 3d at p. 350.)
There was no evidence, however, from which a jury could conclude that County actually (i.e., subjectively) knew Whorton was suicidal. The state hospital records on Whorton that County had received said nothing about suicide. Whorton himself apparently never told anyone at the jail that he was suicidal, nor had he made any suicide attempts.
Whortons wife reported to a County correctional officer that she thought "Steve was going to kill himself." She based this belief on a single gesture he made during a visit with her at the jail (using his fingers to aim an imaginary gun at his head). This is insufficient evidence, however, for a reasonable jury to find it more likely than not that County knew Whorton was suicidal. Whorton did not tell his wife he intended to end his life. He made only a single gesture so ambiguous it can be construed either as an expression of joking self-deprecation or intense frustration. In fact, Whorton is unlikely to have meant he intended to shoot himself in the head, as he would have been unlikely to have ready access to a gun in jail. That Whortons wife reported to the officer the meaning she had attributed to Whortons gesture is insufficient for a reasonable jury to conclude County more likely than not knew Whorton was suicidal.
c. Plaintiffs Do not Raise a Triable Issue of Material Fact that County Had
Reason to Know Whorton Was in Need of Immediate Medical Care
At the outset, we must consider how the standard of "reason to know" plays out here. Plaintiffs argue that County should have evaluated Whorton when he returned from Patton State Hospital, and that it should have requested all of his Patton records. The complete records would have included the daily observation forms showing that Whorton was placed on suicide watch for three days in mid-November 1995 while being hospitalized. Plaintiffs expert psychiatrist, Dr. Tupin, takes this view.
That County could have acquired more information about Whortons condition is not in dispute. But facts that County did not possess could not have given it "reason to know" that Whorton was in need of immediate medical care within the meaning of section 845.6. This does not mean, of course, that County could bury its head in the sand and claim it had no "reason to know." But that is not what County did. County received two discharge summaries on Whorton from Patton State Hospital. These summaries, one of which was prepared by a hospital staff psychiatrist and the other by a registered psychiatric nurse, summarized Whortons hospital stay and behavior, stated his diagnosis, itemized the schedule and amounts of his required medication, and noted the additional medications that could be given if needed. In short, these state hospital discharge summaries are documents on which County could reasonably rely to claim it had no "reason to know" that Whorton was suicidal or in need of immediate medical care. Whorton had been evaluated, diagnosed and treated by state mental health experts, and the discharge summaries concerning those actions did not show that Whorton was suicidal. It was Countys initial job to follow the treatment plan prescribed for the diagnosis, as set forth in the discharge summaries, unless Whortons condition changed after returning to jail from the state hospital or other pertinent circumstances presented themselves (and there is no evidence of that prior to the hanging; although the complaint alleged that County failed to ensure that Whorton received his prescribed medications, it appears that Whorton missed only a single dose or small amount of his medication and that doing so had no effect on his mental state).
Moreover, other statutes enacted simultaneously with section 845.6 suggest that County cannot be liable for failing to examine Whorton or to learn that he was suicidal. Government Code section 855.6 states: "Except for an examination or diagnosis for the purpose of treatment [such as is made in a doctors office and public hospital], neither a public entity nor a public employee acting within the scope of his employment is liable for injury caused by the failure to make a physical or mental examination, or to make an adequate physical or mental examination, of any person for the purpose of determining whether such person has a disease or physical or mental condition that would constitute a hazard to the health or safety of himself or others." (See Cal. Law Revision Com. com., 32 Wests Ann. Gov. Code (1995 ed.) foll. § 855.6, p. 487.) Government Code section 855.8, subdivision (a), adds in relevant part: "Neither a public entity nor a public employee acting within the scope of his employment is liable for injury resulting from diagnosing or failing to diagnose that a person is afflicted with mental illness . . . ."
The foundation of the plaintiffs evidence that County had reason to know that Whorton was in need of immediate medical care is the declaration of their expert, Dr. Tupin. In that declaration, Tupin opines that "the diagnosis of Mr. Whorton received by the Calaveras County Jail from Patton State Hospital is known to carry a risk for depression and suicide"; that Whorton was in a suicidal depression after returning from the hospital; and that Whortons "zombie"-like, sleepy, heavily medicated, and quiet behavior indicated this depression.
But the only diagnoses of Whorton that County received were contained in the discharge summary report and the nursing discharge summary from Patton State Hospital. The diagnoses reported in these documents, respectively, were "Amphetamine-Related Disorder, NOS/Other (or Unknown) Substance Abuse/Personality Disorder/Problems related to interaction [with] the legal system/crime incarceration," and "Amphetamine-Related Disorder/other substance abuse/Personality Disorder." Nothing in these entries gave County reason to know that Whorton was suicidal or in need of immediate medical care. While Tupin does not explain by whom such diagnoses are "known to carry a risk for depression and suicide," we are unpersuaded that County should be charged with such knowledge. The professional medical personnel at Patton State Hospital, in their discharge summaries, did not mention anything about suicidal behavior or tendencies on Whortons part; section 845.6 does not require that County jailers recognize this condition. (See Watson, supra, 21 Cal.App.4th at p. 843.)
Although Tupins declaration states that Whorton was suicidal after he returned from the hospital and that Whortons behavior indicated this, Tupin testified at his deposition that "we dont know" of any evidence showing that Whorton was suicidal (and consequently, in need of immediate medical care) at any point before he hanged himself. Admissions or concessions made during the course of discovery control over contrary declarations lodged at a hearing on a motion for summary judgment. (Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, 860-861, and cases cited therein.) To the extent the contents of a witnesss declaration "directly contradict his discovery responses, they must be disregarded." (Id. at p. 861, quoting Barton v. Elexsys Internat., Inc. (1998) 62 Cal.App.4th 1182, 1191.)
Consequently, we disregard Tupins declaration to the extent it suggests County had reason to know Whorton was suicidal upon his return from the hospital based on the records the County reasonably had before it and based on Whortons behavior. If a trained expert such as Tupin could not venture an opinion, at his deposition, on whether Whorton was suicidal at any point before he hanged himself based on those records and Whortons behavior, a reasonable jury could not conclude that County had reason to know that he was.
Plaintiffs also cite the following additional evidence that County had reason to know Whorton was in need of immediate medical care: (1) four months before he hanged himself, Whorton told the jails physicians assistant, Tim Day, he felt depressed and Day referred the matter to "Mental Health"; (2) Whorton was prescribed psychotropic medication necessary to maintain his competency to stand trial; (3) after Whorton returned to the jail, several correctional officers observed that Whorton was "unusually quiet" and acted "like a zombie"; (4) one officer observed that Whorton was not demonstrating "normal behavior" and seemed "capable of doing anything"; and (5) more than a week before Whorton hanged himself, Whortons wife reported to a correctional officer that she thought Whorton "was acting a little strange" and thought he "was going to kill himself," based on his gesture of pantomiming shooting himself in the head (there was also Whortons statement to his wife about visiting a deceased pet, but she apparently did not attribute suicidal significance to this statement at the time).
This additional evidence does not raise a triable issue of material fact that County had reason to know Whorton was suicidal or in need of immediate medical care. That Whorton had, months earlier, told physicians assistant Day he was depressed would not give County any reason to think he was suicidal on his return from the hospital, when he had received treatment from mental health professionals during the intervening period and the hospital records received and reasonably relied upon by County gave no hint that Whorton was, or had been, suicidal. That Whorton had apparently needed, and been prescribed, psychotropic medication would suggest to County that Whortons mental health had probably improved over what it had been months earlier; moreover, sleepiness and unusually low affect were side effects of the prescribed medication. Dr. Tupin stated in his declaration on behalf of plaintiffs that Whorton "was in immediate need of medical attention for his behavior of being a zombie, sleeping a lot, appearing heavily medicated and being quiet, which are symptoms of depression"; however, again, these symptoms are consistent with Whortons prescribed medication, and they do not raise a triable issue of material fact that County had reason to know that Whorton was suffering from an acute, immediate medical condition of suicidal depression. Finally, Tupin was asked at his deposition whether Whortons gun pantomime and statement to his wife about joining a dead pet suggested that Whorton posed a suicide risk, and Tupin responded he had the impression Whortons gesture and statement had been made in a "casual . . . conversation[]" and that "we would only see that [i.e., the gesture] as an opportunity to do further investigation and questioning."
Our conclusion is consistent with the limited case law applying section 845.6 in cases of suicide.
In Johnson, supra, 143 Cal. App. 3d 298, it was alleged sheriffs officers arrested a man driving on the wrong side of the road; upon his arrest, the man "told Sheriffs that he was attempting to commit suicide" and, shortly thereafter, his wife told officers her husband "was a paranoid schizophrenic, had been repeatedly hospitalized, . . . required immediate medication (thorazine) to correct a chemical imbalance" responsible for his strange conduct, and that he "had suicidal tendencies requiring immediate medical attention." (Id. at p. 304.) No medical attention was summoned; instead, the man was released and committed suicide. (Ibid.) The Court of Appeal held it was error to sustain the demurrer of the sheriffs to the wifes claim that they breached their duty under section 845.6 to obtain medical care for him. In light of the allegations, "the questions of Sheriffs actual or constructive knowledge of Decedents need for immediate care, and of Sheriffs reasonable action to summon or not to summon such care, are questions of fact to be determined at trial." (Id. at p. 317.)
Johnson is easily distinguished from our case. Whorton never told Countys employees he was suicidal, and never (prior to his hanging) engaged in the self-destructive acts that would indicate a suicidal impulse. Whortons wifes statement bore none of the indicia of a bona fide urgency contained in the statement by the wife in Johnson: Whortons wife merely stated what conclusion she had drawn from Whortons ambiguous pistol-shooting gesture.
The facts of Lucas, supra, 60 Cal. App. 3d 341, are closer to our own. There, a young man arrested for public intoxication hanged himself in his cell a few hours later. During his arrest, the mans speech was slurred, he swayed while standing and staggered as he walked, he appeared emotionally upset and he was crying. (Id. at pp. 344, 349-350.) On appeal, the court reversed a jury verdict imposing liability under section 845.6. (Id. at p. 350.) Although the jury apparently reasoned that "the continuous presence in the cell of a doctor, a nurse, or, for that matter, a policeman probably would have prevented the suicide," the court explained, section 845.6 "envisions liability for injury resulting from the failure to treat the physical condition requiring treatment and not for some other incidental injury that might have been prevented by the mere presence of medical personnel." (Id . at p. 350.)
We conclude that summary judgment was properly granted regarding the plaintiffs claim under section 845.6.
3. The Section 1983 Claim
Section 1983 provides in relevant part: "Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State . . ., subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws [of the United States], shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." (See Parratt v. Taylor (1981) 451 U.S. 527, 532, 535 [68 L. Ed. 2d 420, 101 S. Ct. 1908].) Section 1983 creates no substantive rights; it only provides a remedial cause of action in the event any substantive federal rights are violated. (Chapman v. Houston Welfare Rights Org. (1979) 441 U.S. 600, 617-618 [60 L. Ed. 2d 508, 99 S. Ct. 1905].)
Here, a county has been sued under section 1983. A local government, such as a county, may be found liable as a "person" under section 1983 only when its official policy, practice or custom "causes" an employee to violate anothers constitutional or federal rights; in other words, a county cannot be held liable under section 1983 on a respondeat superior theory. (Monell v. New York City Dept. of Soc. Serv. (1978) 436 U.S. 658, 691 [56 L. Ed. 2d 611, 98 S. Ct. 2018].)
A lawsuit under section 1983 contains no mental state requirement independent of that necessary to state a violation of the underlying constitutional or federal right. (Daniels v. Williams (1986) 474 U.S. 327, 329-330 [88 L. Ed. 2d 662, 106 S. Ct. 662]; Irwin v. City of Hemet (1994) 22 Cal.App.4th 507, 519 (Irwin).) "The right to due process under the [federal] Fourteenth Amendment [which is the constitutional right implicated here—deprivation of Whortons life and of the coincidental right of his companionship to his surviving family members] is one of those rights of which a person is deprived only when the defendant acts with a particular state of mind. `Historically, this guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property. (Daniels v. Williams, supra , 474 U.S. at p. 331.) While mere negligence may result in actual loss or injury, it is not a deprivation in the constitutional sense. (Id. at p. 330.)" (Irwin, supra, 22 Cal.App.4th at p. 519.)
It is clearly established that jail officials violate the federal Fourteenth Amendment due process rights of their detainees if the officials exhibit a "deliberate indifference" to the serious medical needs of the detainees. (Elliott v. Cheshire County (1st Cir. 1991) 940 F.2d 7, 10; Farmer v. Brennan (1994) 511 U.S. 825, 828 [128 L. Ed. 2d 811, 114 S. Ct. 1970]; Weyant v. Okst (2d Cir. 1996) 101 F.3d 845, 856; see Irwin, supra, 22 Cal.App.4th at pp. 519-520; Lucas, supra, 47 Cal.App.4th at pp. 287-288 & fn. 4.) Although the issue apparently is not entirely settled in the context of the Fourteenth Amendment, deliberate indifference has been equated to recklessness and actual knowledge. (Farmer v. Brennan, supra, 511 U.S. at pp. 836-837; see Lucas, supra, 47 Cal.App.4th at pp. 287-288 & fn. 4.) The key to deliberate indifference in a jail suicide case is whether the defendants had knowledge of the detainees particular vulnerability or tendency toward suicide, a vulnerability or tendency which creates a strong likelihood, rather than a mere possibility, that self-inflicted harm will occur; and, given such knowledge, fail to take reasonable measures to prevent that harm from occurring. (Irwin, supra, 22 Cal.App.4th at pp. 523-524; see Lucas, supra, 47 Cal.App.4th at pp. 287-288 & fn. 4.)
For the reasons expressed in the previous section of this opinion, no triable issue of material fact has been presented that County knew or even had reason to know that Whorton had a particular vulnerability or tendency toward suicide creating a strong likelihood of self-inflicted harm. The hospital records that County received and upon which it could reasonably rely—the discharge summaries—gave no hint that Whorton was, or had been, suicidal. These records disclosed that state mental health experts had diagnosed Whorton and prescribed a medication regimen for him, which County followed. This diagnosis did not mention suicide or depression. Whorton apparently never told anyone at the jail that he was suicidal; nor did he make any suicide attempts. Dr. Tupins declaration regarding the evidence of Whortons suicidal tendency was based on Whortons behavior upon his return from the state hospital and on Whortons complete records from the state hospital (which included the daily observation forms of the three-day suicide watch in mid-November 1995). These complete records went beyond the state hospital records that County had received and upon which County could reasonably rely (the discharge summaries with Whortons diagnosis and medication regimen). In his earlier deposition, moreover, Tupin acknowledged that the evidence the County had before it did not indicate suicidal tendencies on Whortons part. The additional evidence that plaintiffs submitted—Whortons pre-hospital statement that he felt depressed; his psychotropic medication; his "zombie"-like behavior (a side effect of the medication); and his pantomime gesture and dead pet statement to his wife—does not raise a triable issue of material fact that Whorton had a particular vulnerability or tendency toward suicide that created a strong likelihood of self-inflicted harm.
Plaintiffs raise two specific points regarding Countys official policy, practice or custom. First, they allege in their complaint that Countys "failure to properly train and supervise" its employees caused Whortons death, in that the employees "denied him medical treatment at a time when he was in need thereof and exhibited deliberate indifference to the need or precautions against inmate suicides where [County] knew or should have known of the detainees suicidal tendencies." What we have just said defeats this allegation. Plaintiffs have not raised any triable issue of material fact of deliberate indifference in this regard because there is no evidence that County knew or even should have known of Whortons suicidal tendencies.
Second, plaintiffs argue that County had a custom or practice of not evaluating or providing medical attention for prisoners returning from the state mental hospital. Again, though, this does not raise a triable issue of deliberate indifference. The undisputed evidence shows that County obtained and reasonably relied on the diagnosis and the prescribed medication regimen for Whorton set forth by the state hospital mental health experts, and County provided, or strived to provide, that medication to Whorton when he returned to the jail from the hospital. There is no evidence that Whortons condition changed in any meaningful way from what it was when he returned to the jail from the hospital. Rather than showing a deliberate indifference on Countys part regarding the provision of medical care, this evidence shows a deliberate decision by County to provide the care recommended by mental health experts who had just evaluated and treated Whorton.
We conclude that summary judgment was properly granted regarding plaintiffs section 1983 claim.
In their complaint, the plaintiffs suggest the section 1983 claim is also based on the Countys alleged acts depriving Whorton of his federal Fourth Amendment constitutional rights. There can be no Fourth Amendment violation. "The Fourth Amendment covers only `searches and seizures," neither of which took place here. (County of Sacramento v. Lewis (1998) 523 U.S. 833, 843 [140 L. Ed. 2d 1043, 118 S. Ct. 1708]; see also Irwin, supra, 22 Cal.App.4th at pp. 516-517.)
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P.J., BLEASE, J.