ESTATE OF MAUREEN BEARDEN v. MCKEITHEN et al
Filing
64
ORDER granting 41 Motion for Summary Judgment as to Counts I, II, and IV. Because summary judgment has been granted for all of Plaintiff's federal claims, this Court declines to exercise supplemental jurisdiction over the remaining state law claims pursuant to 28 U.S.C. § 1367(c)(3). The Clerk is directed to close the case. Signed by JUDGE RICHARD SMOAK on 9/10/2012. (jcw)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
JAMES BEARDEN as Personal
Representative of the estate of
Maureen Beardem, and on behalf
of the Survivors, Elizabeth and
Brooke Villella, and James Bearden,
Plaintiff,
v.
CASE NO. 5:11-cv-316-RS-EMT
HON. FRANK McKEITHEN, as
Sheriff of Bay County, Florida, and RICK
ANGLIN and RONALD LIPPMANN, in
their individual capacities,
Defendants.
_________________________________________/
ORDER
Before me are Defendants McKeithen and Anglin’s Motion for Summary
Judgment (Doc. 41) and Plaintiff’s Response in Opposition (Doc. 52). Defendant
Lippmann has previously been voluntarily dismissed.
I. STANDARD OF REVIEW
The basic issue before the court on a motion for summary judgment is
“whether the evidence presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail as a matter of law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S. Ct. 2505, 2512 (1986).
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The moving party has the burden of showing the absence of a genuine issue as to
any material fact, and in deciding whether the movant has met this burden, the
court must view the movant’s evidence and all factual inferences arising from it in
the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398
U.S. 144 (1970); Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993).
Thus, if reasonable minds could differ on the inferences arising from undisputed
facts, then a court should deny summary judgment. Miranda v. B & B Cash
Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile Bank
& Trust v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)). However,
a mere ‘scintilla’ of evidence supporting the nonmoving party’s position will not
suffice; there must be enough of a showing that the jury could reasonably find for
that party. Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing
Anderson, 477 U.S. at 251).
II. BACKGROUND
I accept the facts in the light most favorable to Plaintiff. See Galvez v.
Bruce, 552 F.3d 1238, 1239 (11th Cir. 2008) (citing Vinyard v. Wilson, 311 F.3d
1340, 1343 n.1 (11th Cir. 2002)). “‘All reasonable doubts about the facts should
be resolved in favor of the non-movant.’” Id. (quoting Burton v. City of Belle
Glade, 178 F.3d 1175, 1187 (11th Cir. 1999); Clemons v. Dougherty County, 684
F.2d 1365, 1368-69 (11th Cir. 1982).
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On Sunday, March 22, 2009, Maureen Bearden (“Decedent”) committed
suicide while detained in the Bay County Jail. She had created a noose by looping
a bed sheet through a door grate and was discovered by prison staff at 8:57 p.m.
hanging in her cell. She was pronounced dead at Bay Medical Center at 10:22 p.m.
the same day. Defendant McKeithan, Sheriff of Bay County, had assumed
operation of the jail in October of 2008 after a long-term contract with Corrections
Corporation of America (“CCA”) was terminated. Defendant Anglin was the
Warden at the jail beginning in October of 2008.
Decedent was booked into the Bay County jail on January 25, 2009. An
Initial Intake Screening was performed which indicated that she had made
numerous suicide attempts in the past, including while previously incarcerated in
the Bay County Jail. For example, in December of 2005, Decedent was placed on
suicide precautions1 for four days because she repeatedly stabbed herself with an
ink pen. She was placed on suicide preventions several times in 2006 through
2008 during multiple, separate periods of incarceration and engaged in several
documented self-harm attempts during this span.
At the time of intake on January 25, 2009, Decedent indicated that she was
currently thinking about harming or killing herself. Between this date and her
1
The jail has at least three different types of special observations that prisoners can be placed on,
including suicide precautions, medical observation, and behavioral observation. See Doc. 56-3,
Deposition of Rick Anglin.
3
successful suicide on March 22, 2009, Decedent was placed on suicide precautions
three times for a total of 31 days. Her last discharge from suicide observation
status was on March 9, 2009. The evening of her suicide, a nurse who was passing
out medication around 8:00 p.m. noted that Decedent was “showing out” and “not
happy.” Decedent gave a note to the nurse which stated “I’m not going to hurt
myself anymore. I’m going to start hurting the people that has (sic) hurt me
instead of myself.” Other inmates heard Decedent pounding on her cell door and
shouting for a prolonged period, beginning around 6:00 p.m. Doc. 56-13. The
shift supervisor, Lieutenant Smith, called David Sasser, the health services
administrator,2 conveying to him essentially that Decedent needed more attention
than jail staff could give her and needed to be removed from the jail. Mr. Sasser
advised Mr. Smith that mental health staff would talk to Decedent. Doc. 56-4, Pg.
11, Expert Report of Richard Hayward, Ph.D.
During her roughly two-month incarceration in 2009, Decedent was
assigned to mental health counselor Timothy Jennings. Jennings was not a
licensed mental health counselor, but had earned a master’s degree in mental health
counseling. Doc. 42-1, ¶ 6, Affidavit of Rick Angler. During her final phase off of
suicide watch (March 9, 2009 through March 22, 2009), Decedent was visited by
Jennings five times. Doc. 42-10. She was also visited once by licensed mental
2
See Doc. 65-3, pg. 43, Deposition of Rick Angler.
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health counselor Charles Howell. Doc. 42-10. According to Plaintiff’s mental
health expert, these and other visits from Jennings amounted to “no more than
monitoring from a mental health staff member who was not licensed to practice
therapeutic interventions and had no training in interventions appropriate for
individuals with Borderline Personality Disorder, Bipolar Disorder, and
Posttraumatic Stress Disorder.” Doc. 56-4, pg. 9-10, Expert Report of Richard
Hayward, Ph.D. Further, “the sheer lack of documentation during her 2009
incarceration make it impossible to prove she received any mental health care of
any significance.” Doc. 56-5, pg. 8, Expert Report of Harvey Norris, LCSW. Mr.
Norris found that Jennings’ notes regarding his visits with Decedent were “grossly
inadequate” and “indicate no progression of treatment.” Doc. 56-5, pg. 8-9.
III. ANALYSIS
Count I: Claims under 42U.S.C. 1983 against Hon. Frank McKeithen
Plaintiff claims that Decedent’s estate and survivors are entitled to relief
against Defendant McKeithen under 42 U.S.C. § 1983, based on violation of the
Fourteenth Amendment to the U.S. Constitution, because Decedent was denied
needed medical care and her mental health issues were not timely and properly
assessed and treated. Complaint, ¶¶ 83-84. In the Eleventh Circuit, “to impose §
1983 liability on a municipality, a plaintiff must show: (1) that his constitutional
rights were violated; (2) that the municipality had a custom or policy that
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constituted deliberate indifference to that constitutional right; and (3) that the
policy or custom caused the violation.” McDowell v. Brown, 392 F.3d 1283, 1289
(11th Cir. 2004). The claim against Sheriff McKeithen in his official capacity is
governed by this standard. “A policy may be deliberately indifferent . . . where the
policy is implemented with ‘deliberate indifference as to its known or obvious
consequences.’” Fields v. Corizon Health, Inc., 11-14594, 2012 WL 3854592
(11th Cir. Sept. 6, 2012) (citing McDowell, 392 F.3d at 1291). Under attack here is
what Plaintiff alleges was a policy or custom of failing to provide treatment for
inmates with severe mental health needs and suicidal tendencies, the consequence
of which would be the ultimate suicides of inadequately treated inmates.
Complaint, ¶¶ 85-86.
In a case involving two suicides the same jail cell approximately a year
apart, an Alabama district court determined that “in jail suicide cases involving
conditions of confinement, the appropriate inquiry is whether jail conditions and
past events made it so obvious that suicide would result from the county’s failure
to modify its jail facilities that the county could be seen as deliberately indifferent
to the interests of all detainees.” Vinson v. Clarke County, Ala., 10 F. Supp. 2d
1282, 1301 (S.D. Ala. 1998). While at issue in this case is the provision of mental
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health services rather than the physical conditions of the jail cell which housed
Decedent at the time of her suicide,3 the same standard can logically be applied.
Plaintiff avers that there was ample notice of a problem of past suicides
involving the same policies and many of the same personnel at the Bay County
Jail, so the Sheriff’s failure to improve the mental health services constitutes
deliberate indifference. However, Defendant Anglin’s affidavit asserts that he was
concerned about the adequacy of the care provided to people with mental health
issues during CCA’s operations of the facility, so at the beginning of his and
3
In Plaintiff’s response to Defendants’ motion for summary judgment, he claims that “the metal mesh
door of decedent’s prison cell furnished an accessible and inviting tool for suicide” and that “defendants
were aware that inmates were taking advantage of this tool and chose to do nothing to stop them,”
constituting deliberate indifference. Doc. 57, pg. 21. However, Count I of the Complaint alleges only
inadequate provision of mental health services, not dangerous design of the jail. Further, the case cited by
Plaintiff involved two prison suicides by hanging and evidence showed that there were three successful
suicides by hanging in a six-month span in a county jail. See Tittle v. Jefferson County Comm'n, 966 F.2d
606, 608 (11th Cir. 1992) reh'g granted and opinion vacated, 986 F.2d 1384 (11th Cir. 1993) and on
reh'g, 10 F.3d 1535 (11th Cir. 1994). This decision was vacated, and on rehearing the Eleventh Circuit
affirmed the district court’s grant of summary judgment, holding that “‘the deliberate indifference
standard is met only if there were a ‘strong likelihood, rather than a mere possibility,’ that self-infliction
of harm would result’ from the defendant’s actions or inaction. The fact that one suicide occurred before
Tittle committed suicide and two suicides occurred before Harrell committed suicide, without more, did
not increase the possibility of suicide to a strong likelihood.” Tittle v. Jefferson County Comm'n, 10 F.3d
1535, 1541 (11th Cir. 1994) (quoting Edwards v. Gilbert, 867 F.2d 1271, 1276 (11th Cir.1989)) (citations
omitted). Accordingly, even if Plaintiff’s complaint had raised the danger of the metal mesh as part of its
constitutional claim against the Sheriff, a trio of suicides more than a decade earlier would not increase
the possibility of suicide to the strong likelihood which is necessary to a finding of deliberate
indifference.
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Sheriff McKeithen’s tenure operating the jail he ended the practice of outsourcing
mental health services to an outside provider and brought in an in-house staff.4
Doc. 42-1, ¶ 6, Affidavit of Rick Anglin. There was no option for suicidal inmates
who could not be properly treated by the in-house staff to be placed at an outside
acute care facility for stabilization which would prevent suicide. Instead, suicidal
inmates were placed on suicide precautions. See Doc. 56-3, pg. 61, Deposition of
Rick Angler; Doc. 56-4, pg. 10-11, Expert Report of Dr. Richard Hayward, Ph.D.
During CCA’s management of the jail, there were three successful suicides, all in
the mid-1990s. Doc. 56-3, pg. 21, Deposition of Rick Anglin. Decedent’s suicide
is the only suicide that has occurred at the jail since Sheriff McKeithen assumed
responsibility of it. Doc. 42-1, ¶ 5.
Many of the policies and procedures of CCA remained in place at the time
of Decedent’s suicide, including the suicide management policy. That policy
remained in place until April of 2009 following Decedent’s suicide. Doc. 56-16,
pg. 5-6, Deposition of Rick Anglin. The new policy contains three levels of
4
Anglin stated that “[o]ne of the primary problems with [the outsourced mental health services was] that
the time from when an inmate was initially determined to need some kind of mental health assessment or
treatment, the delay in the amount of time that it took to get a psychiatrist out to the facility to address that
was just -- it was unacceptable. I did not feel comfortable with that.” Doc. 56-3, pg. 20, Deposition of
Rick Anglin. After Sheriff McKeithen took over responsibility of the jail, Anglin immediately changed
the mental health provision system so that mental health counselors were required to see inmates
immediately upon intake if there was a mental health referral issued at intake. Id. at 22.
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suicide precautions, which allows jail staff to better assess inmates on suicide
precautions and provide the inmates privileges that would be available in the
general population while still being monitored in a controlled setting. Id. at 7.
Plaintiff asserts that a multi-level suicide watch plan was an industry standard and
the failure to have one in place at the time of Decedent’s suicide constitutes
deliberate indifference. To counter the charge of deliberate indifference, Sheriff
McKeithen points out that after Decedent’s suicide, Defendant Anglin had the
metal mesh removed from jail cells and video cameras installed in order to prevent
suicides and also introduced the new written suicide prevention protocols.5 Doc.
42-1, ¶ 7.
While there was an unfortunate failure of suicide prevention policies in this
case, it is clear from the evidence that Sheriff McKeithen was not deliberately
indifferent to the risk of suicide of inmates such as Decedent. The most recent
suicide had been more than a decade earlier, and McKeithen had taken over control
of the jail from CCA partly because of his desire to address the deficient mental
health care provision during CCA’s management. The mental health care services
5
Defendants argue that while subsequent remedial measures are inadmissible to show a breach of duty
under Federal Rule of Evidence 407, they can be used defensively to show absence of deliberate
indifference. Plaintiff claims that they may also be used to show feasibility. However, the feasibility of
making physical changes to the jail cells and of implementing an improved suicide prevention plan is not
controverted.
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had been brought in-house so that inmates would be seen and treated much more
quickly than they had when the services were outsourced. In sum, it cannot be said
that past events made it so obvious that suicide would result from the county’s
failure to modify its procedures and facilities that Sheriff McKeithen was
deliberately indifferent. Accordingly, Sheriff McKeithen is entitled to summary
judgment on Count I.
Count II: Claims under 42 U.S.C. 1983 against Rick Anglin
Plaintiff claims that Decedent’s estate and survivors are entitled to relief
against Defendant Anglin under 42 U.S.C. § 1983, based on violation of the
Fourteenth Amendment to the U.S. Constitution because Decedent was denied
needed medical care and her mental health issues were not timely and properly
assessed and treated. Complaint, ¶¶ 94-95. Anglin claims that he is entitled to
qualified immunity, which insulates government officials from personal liability
for actions taken pursuant to their discretionary authority. According to the
Supreme Court, “‘government officials . . . generally are shielded from liability for
civil damages insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.’”
Greason v. Kemp, 891 F.2d 829, 833 (11th Cir. 1990) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). A constitutional right is violated when
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there is deliberate indifference to the serious need for psychiatric care. Greason,
891 F.2d at 833-34.
“To establish liability for a prisoner’s suicide under section 1983, ‘the
plaintiff must show that the jail official displayed deliberate indifference to the
prisoner’s taking of his own life.’” Gish v. Thomas, 516 F.3d 952, 954 (11th Cir.
2008) (quoting Cook ex rel. Estate of Tessier v. Sheriff of Monroe County, Fla.,
402 F.3d 1092, 1115 (11th Cir. 2005)) (internal quotations omitted). “The plaintiff
must prove that the official had subjective knowledge of a risk of serious harm and
disregarded that risk by conduct that constituted more than mere negligence.”
Gish, 516 F.3d at 954 (citing Snow ex rel. Snow v. City of Citronelle, Ala., 420
F.3d 1262, 1268 (11th Cir. 2005)). “‘Deliberate indifference requires that the
defendant deliberately disregard a strong likelihood rather than a mere possibility
that the self-infliction of harm will occur.’” Gish, 516 F.3d at 954 (quoting Cook,
402 F.3d at 1115) (internal quotations omitted). “To be deliberately indifferent to
a strong likelihood that the prisoner will commit suicide, the official must be
subjectively aware that the combination of the prisoner’s suicidal tendencies and
the feasibility of suicide in the context of the prisoner’s surroundings creates a
strong likelihood that the prisoner will commit suicide.” Gish, 516 F.3d at 954-55.
On the other hand, “[w]here prison personnel directly responsible for inmate care
have knowledge that an inmate has attempted, or even threatened, suicide, their
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failure to take steps to prevent that inmate from committing suicide can amount to
deliberate indifference.” Greason, 891 F.2d at 835-36.
Anglin was not present at the jail when Decedent committed suicide and he
did not personally participate in decisions regarding her medical treatment,
observation status, or cell assignment during her detention in 2009. Doc. 42-1, ¶ 34. Thus, it cannot be said that he was subjectively aware of the combination of
Decedent’s suicidal tendencies and the feasibility of her suicide while under
behavioral observation. Accordingly, Anglin was not deliberately indifferent and
thus is entitled to qualified immunity and, consequently, summary judgment on
Count II.
Count IV: Claims under the ADA and Rehabilitation Act against Hon. Frank
McKeithen
Plaintiff claims that Decedent’s estate and survivors are entitled to relief
against Defendant McKeithan for disability discrimination pursuant to Title II of
the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., (hereinafter
“ADA”). Complaint, ¶ 112. Under the ADA, “no qualified individual with a
disability shall, by reason of such disability, be excluded from participation in or
be denied the benefits of the services, programs, or activities of a public entity, or
be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Section
504 of the Rehabilitation Act of 1973 (“RA”) provides that “[n]o otherwise
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qualified individual with a disability in the United States, as defined in section
705(20) of this title, shall, solely by reason of her or his disability, be excluded
from the participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial
assistance.” 29 U.S.C. § 794. The ADA and Rehabilitation Act claims are
considered together and pursuant to the same standard because, “cases decided
under the Rehabilitation Act are precedent for cases under the ADA, and viceversa.” Cash v. Smith, 231 F.3d 1301, 1305 n.2 (11th Cir. 2000). The ADA‘s
prohibition of disability discrimination applies to state prisoners. Pa. Dep't of
Corr. v. Yeskey, 524 U.S. 206, 210 (1998).
The issue here is whether Decedent was “denied the benefits of the services,
programs, or activities” of the Bay County Jail. In the Complaint, Plaintiff alleges
that Decedent, because of her lack of treatment and adequate supervision, was
denied certain opportunities that other inmates enjoyed, such as the opportunity to
interact with other inmates, form friendships, move at liberty within set bounds,
make phone calls, use educational facilities, and engage in religious activities.
Complaint, ¶¶ 121a-e. Thus, there are two layers of depravation alleged: the
depravation of treatment and supervision and the resulting depravation of
participation in the same activities that other inmates enjoyed. To begin with, “the
ADA ‘would not be violated by a prison’s simply failing to attend to the medical
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needs of its disabled prisoners.’” Schiavo ex rel. Schindler v. Schiavo, 403 F.3d
1289, 1294 (11th Cir. 2005) (quoting Bryant v. Madigan, 84 F.3d 246, 249 (7th
Cir.1996)). Accordingly, the failure to provide adequate medical care for
Decedent’s mental illnesses is not by itself an ADA or RA violation.
As for the denial to Decedent of privileges enjoyed by other inmates,
Plaintiff must show that they were denied to Decedent by reason of her disability.
Plaintiff asserts that Decedent suffered from bipolar disorder and Post Traumatic
Stress Disorder. Complaint, ¶ 114. There is nothing in the record that indicates
that an inmate who is not disabled and who is placed on suicide precautions would
have received any more privileges than did Decedent. Nor is there anything in the
record indicating that any other inmate placed on behavioral observation, as was
Decedent at the time of her suicide, would have enjoyed any more privileges than
she did. It is not the case that Decedent was targeted for different treatment than
the main prison population because of her illnesses, but rather her treatment was
the same as for other, non-disabled inmates who had the same observation status.
Accordingly, there is no cognizable claim under the ADA or the RA and Sheriff
McKeithen is entitled to summary judgment on Count IV.
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IV. CONCLUSION
Defendants’ Motion for Summary Judgment (Doc. 41) is GRANTED as to
Counts I, II, and IV. Because summary judgment has been granted for all of
Plaintiff’s federal claims, this Court declines to exercise supplemental jurisdiction
over the remaining state law claims pursuant to 28 U.S.C. § 1367(c)(3). The Clerk
is directed to close the case.
ORDERED on September 10, 2012.
/s/ Richard Smoak
RICHARD SMOAK
UNITED STATES DISTRICT JUDGE
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